Cox v. Astrue

• Decision Date: 26 July 2007
• Docket Number: No. 06-3640.,06-3640.
• Parties: Lisa COX, Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

495 F.3d 614

Lisa COX, Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Appellee.

No. 06-3640.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2007.

Filed: July 26, 2007.

Counsel who presented argument on behalf of the appellant was E. Gregory Wallace of Buies Creek, NC. Anthony W. Bartels of Jonesboro, AR, appeared on the brief.

Counsel who presented argument on behalf of the appellee was Carolyn Ann Ebbers, SSA, Dallas, TX. Virginia W. Keyes, Special AUSA of Dallas appeared on the brief.

Before WOLLMAN, BEAM, and COLLOTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Lisa Cox appeals the district court's¹ order upholding the Social Security Commissioner's denial of her application for disability insurance benefits. Cox argues that as a result of procedural errors and ambiguous medical evidence, the administrative law judge's (ALJ) determination that she was not disabled was not premised on substantial evidence. We affirm.

I.

Cox contends that she has been qualified for disability benefits since December 11, 2002, because anxiety, mental retardation, and a respiratory impairment prevent her from working. At the time of the ALJ's decision, Cox was thirty-seven years old. According to her Social Security Administration disability form and testimony, she reported having received a tenth grade education and having attended special education classes. She attempted to receive a GED, but was unsuccessful. She also asserted that she had worked full time, on and off, as a certified nurse's aide (CNA) from 1994 to 1996, although she acknowledges that she never received special job training or attended a trade or vocational school, and had reported earnings averaging approximately $2000 a year during that period.

Cox has had a chronically tumultuous home life. She testified that she was molested by her father from the age of nine to sixteen, and as a result has difficulty concentrating, handling stress, and dealing with people. She has three children, and she still lives with and takes care of her sixteen-year-old daughter, who suffers from severe mental impairments. She informed a psychiatrist that she had been married three times to abusive men, that she receives no child support from her children's father, and that she has had to care for various other family members.

In April 2002, Angela McKinness, an advanced practice nurse, diagnosed Cox with insomnia and generalized anxiety disorder. Nurse McKinness prescribed medication to help Cox with these issues. On May 8, 2003, Dr. Mary Ellen Ziolko performed a consultative psychological evaluation. Dr. Ziolko described Cox's affect and mood as depressed and anxious. An administration of the Wechsler Adult Intelligence Scale indicated that Cox had full scale, verbal, and performance IQ scores in the mid — to upper-sixties. These results were considered valid. Dr. Ziolko's summary report and diagnosis, however, made facially conflicting statements concerning Cox's status. Although she reported that Cox's intellectual functioning falls in the "mild" retardation range,² she also indicated in her evaluation of adaptive functioning that there "did not appear to be significant limitations in two or more areas of adaptive behavior. Adaptive behavior appeared more consistent with `borderline' intellectual functioning than mental retardation."

Cox was subsequently treated by Dr. Mohammed Al-Taher for her depression, anxiety, and insomnia. Dr. Al-Taher periodically adjusted Cox's medication in response to her needs. At various points, Dr. Al-Taher noted that the treatment appeared to be yielding positive results, but Cox's tumultuous family life and manipulative daughter often resulted in the return of depressive episodes. The record indicates that Dr. Al-Taher diagnosed Cox with mild depression and dependent personality traits. Cox testified that she suffers from anxiety attacks two to three times a week, does not have her anxiety and depression completely under control even with medication, and would cry if criticized in a work environment. She stated that she is routinely subject to crying spells and constantly thinks of her experience as a victim of molestation. Nevertheless, she acknowledged that she was not plagued by most of these problems when she worked as a CNA at a nursing home and her children were younger. She left that job in order to take care of her children.

After reviewing the entirety of the record, the ALJ found that although Cox's IQ scores were within the range of mild mental retardation, because of both her ability to perform a wide variety of daily activities and Dr. Ziolko's conclusion that her adaptive functioning was more consistent with borderline intellectual functioning, Cox did not have an impairment listed in, or medically equal to, those set forth in the Federal Regulations.³ Furthermore, the ALJ found that her subjective complaints were not borne out by the record and were not fully credible. After the ALJ determined Cox's residual functional capacity (RFC), he posed hypotheticals to the vocational expert (VE) consistent with Cox's RFC. The VE indicated that an individual with Cox's RFC who can perform functionally light work could work as a bench assembler or small products assembler. Accordingly, the ALJ concluded that Cox lacked a cognizable disability as defined in the Social Security Act.

On appeal, Cox contends that the ALJ erred by (1) not seeking clarification from Dr. Ziolko, whose report contradicted itself by indicating that Cox had mild retardation while simultaneously concluding that she had borderline intellectual functioning inconsistent with mild retardation; (2) failing to recontact Dr. Al-Taher and Nurse McKinness to determine how they believed her depression and anxiety affect her ability to work; and (3) asking the vocational expert hypothetical questions that did not include all of the relevant details of Cox's residual functional capacity, thereby rendering the answers unreliable.

II.

"It is not the role of this court to reweigh the evidence presented to the ALJ or to try the issue in this case de novo." Loving v. Dep't of Health & Human Servs., 16 F.3d 967, 969 (8th Cir. 1994). Instead, we review the ALJ's decision to determine whether it is supported by substantial evidence on the record as a whole. Id. "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir.1998). Our review extends beyond examining the record to find substantial evidence in support of the ALJ's decision; we also consider evidence in the record that fairly detracts from that decision. Id. at 1207. If, after conducting this review, we find that "`it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [Secretary's] findings, we must affirm the decision' of the Secretary." Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir.1995) (alteration in original) (quoting Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992)).

The ALJ considered Cox's impairment by conducting the familiar five-step evaluation set forth in 20 C.F.R. § 404.1520(a)(g) (2004). Under the regulations, the ALJ determines: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant's impairments are so severe that they significantly limit the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has impairments that meet or equal a presumptively disabling impairment specified in the regulations; (4) whether the claimant's RFC is sufficient for her to perform her past work; and finally, if the claimant cannot perform her past work, the burden shifts to the Commissioner to prove that (5) there are other jobs in the national economy that the claimant can perform given the claimant's RFC, age, education and work experience. See Cox v. Apfel, 160 F.3d at 1207. Cox's claims of error relate to steps three and five.

A. Mental Retardation

The ALJ found that substantial evidence supported the conclusion that Cox's mental impairments did not meet or equal the listed requirements for mental retardation. We agree. For Cox's purposes, to qualify as presumptively disabled due to mental retardation, substantial evidence must support the presence of a "valid verbal, performance, or full scale IQ of 60 through 70" and "a physical or other mental impairment imposing an additional and significant work-related limitation of function," whose onset had occurred by age twenty-two. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(c); Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir.2006) (describing the § 12.05(c) requirements).

Generally, social security hearings are non-adversarial. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir.2004). An ALJ bears a responsibility to "develop the record fairly and fully, independent of the claimant's burden to press his case." Id. Cox contends, then, that because Dr. Ziolko's medical report at least appeared to diagnose her with mental retardation, the ALJ should not have relied on contradictory language indicating that her adaptive function was more in line with borderline functioning than mental retardation to support its determination that Cox was not mentally retarded. Instead, the ALJ should have determined that Cox was mentally retarded or else consulted Dr. Ziolko for further clarification of the report's discrepancy. See Snead, 360 F.3d at 839 ("Because [the] evidence might have altered the outcome of the disability determination, the ALJ's failure to elicit it prejudiced [the claimant] in his pursuit of benefits.").

It is clear that Dr. Ziolko did not intend to ultimately diagnose Cox with mental retardation, however. The totality of the clinical record supports the ALJ's conclusion and was not ignored. Dr. Ziolko's report recounts Cox's ability to effectively...