Hunt v. Massanari

• Decision Date: 15 February 2001
• Docket Number: No. 00-2487,00-2487
• Parties: (8th Cir. 2001) ELLEN HUNT, APPELLANT, v. LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY <A HREF="#fr1-*" name="fn1-*">* , APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 622

250 F.3d 622 (8th Cir. 2001)

ELLEN HUNT, APPELLANT, v. LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY^*, APPELLEE.

No. 00-2487

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 15, 2001

Filed: May 16, 2001

Appeal from the United States District Court for the Eastern District of Arkansas.

Before Wollman, Chief Judge, Bright, and Morris Sheppard Arnold, Circuit Judges.

Bright, Circuit Judge.

Ellen Hunt appeals the judgment of the district court affirming the final decision of the Commissioner of Social Security Administration (SSA) denying Hunt's petition for supplemental security income (SSI) benefits based on disability. In her appeal, Hunt asserts the Administrative Law Judge (ALJ) posed a defective hypothetical question to the vocational expert because it did not accurately set forth Hunt's impairments, specifically her borderline intelligence.

Our review is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record as a whole, that is, evidence that reasonable minds would accept as adequate to support the Commissioner's conclusion. 42 U.S.C. 405(g), 1382(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999). The review is more than "a search of the record for evidence supporting the Secretary's findings." Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1989). In determining substantiality, the court must also balance the weight of the evidence that detracts from the Commissioner's decision. Muncy v. Apfel, 247 F.3d 728, 731 (8th Cir.2001). Because of the insufficiency of the record with regard to Hunt's borderline intellectual functioning, we must remand this matter to the Commissioner for further proceedings.

I.

In 1992, Hunt applied for SSI benefits, alleging disability since 1988 due to slipped discs, asthma, bad nerves, insomnia, memory loss, pelvic pain, and migraine headaches. Hunt is now thirty-five years old with an eighth grade education. She last worked as a motel maid more than fifteen years ago. The SSA denied her application initially and on reconsideration. Hunt then requested and received an administrative hearing in 1995 before an ALJ, who determined that she was not disabled. On remand from the district court, directing the ALJ to consider additional physicians' findings, as well as other matters, a second hearing occurred in 1997 and the ALJ again concluded Hunt was not disabled because she was capable of performing alternative work. Following yet a third hearing in 1998, after remand from the district court because the tape from the second hearing had been lost, an ALJ denied Hunt's request for benefits. The Appeals Council denied her request for review, and Hunt brought suit in federal court.

During the continuing disability review, different psychologists evaluated Hunt on the Weschler Adult Intelligence Scale-Revised ("WAIS-R"), used for formal intelligence testing. At her testing in 1988, her full scale IQ was 71, verbal IQ was 76, and performance IQ was 65. An IQ of 71 placed her in the low normal range, described by "borderline intellectual functioning." Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999) ("Borderline intellectual functioning describes individuals with IQ between 71 and 84."); Thomas v. Sullivan, 876 F.2d 666, 668 n.1 (8th Cir. 1989). At two testings in 1993, her verbal IQs were 74, performance IQs were 85 and 77 respectively, and full scale IQs were 77 and 74, still placing her in the low normal range. A testing in 1997 placed her full scale IQ at 79.

At the 1998 administrative hearing, the ALJ utilized the familiar "five-step sequential evaluation process for determining whether a person is disabled." Riley v. Shalala, 18 F.3d 619, 621 (8th Cir. 1994). At step one, the ALJ found Hunt had not been gainfully employed since 1983. The testimony demonstrated that Hunt has borderline intellectual functioning, an impairment which causes significant vocationally relevant limitations. At step three, the ALJ noted that Hunt had borderline IQ and severe physical impairments of mild degenerative disc disease of the lumbar spine, asthmatic bronchitis, migraine headaches, history of pelvic pain resolved with a complete hysterectomy, but that Hunt did not have an impairment or combination of impairments which meet or equal the requisite level of severity under the Social Security Act. The ALJ found at step four that Hunt has non-exertional limitations which narrow the range of sedentary or light work she is capable of performing, making it impossible for her to perform tasks requiring normal intelligence in that she is limited to the performance of simple, repetitive tasks which require only simple supervision and the following of simple instructions.

The analysis at step five is of primary concern in this appeal. The testimony of a vocational expert is required when a claimant has satisfied her initial burden of showing that she is incapable of performing her past relevant work. Johnston v. Shalala, 42 F.3d 448, 452 (8th Cir. 1994). The vocational expert (VE), Dianne Smith, stated Hunt could fulfill the job requirements of several unskilled positions that exist in significant numbers in the local area. However, the ALJ did not include in his question to the VE the factor of a person with borderline intellectual functioning.

II.

Hunt argues on appeal that the ALJ's decision denying benefits is not supported by substantial evidence in the record as a whole. According to Hunt, the ALJ erred by failing to include in the hypothetical posed to the vocational expert any reference to Hunt's borderline intelligence.

The Commissioner responds that the hypothetical accurately set forth all of her impairments and that the ALJ properly weighed the evidence in determining her functional capacity. The Commissioner also argues that IQ should not be considered on its own in determining mental capacity....