Opinion
NO. 1:01-CV-220
December 23, 2002
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
This is an action wherein plaintiff seeks judicial review of Commissioner Barnhart's final determination denying plaintiff's application for Social Security benefits. The court has jurisdiction pursuant to 42 U.S.C. § 405(g) (1994).II. Proceedings
Plaintiff applied for Supplemental Security Income benefits (SSI) on January 23, 1998. Plaintiff claimed inability to work as of January 15, 1997, due to lower back pain, gastritis, and depression.The Commissioner of the Social Security Administration (SSA) initially denied the plaintiff's application for benefits as well as her request for reconsideration. Plaintiff timely appealed and requested a hearing.
An administrative hearing was held on July 6, 1999 before Administrative Law Judge ("ALJ") Rae M. Chamberlain. At that hearing, plaintiff was unrepresented and appeared pro se. ALJ Chamberlain determined on January 27, 2000, that plaintiff was not entitled to benefits because she was not considered "disabled" under the governing rules. On February 9, 2000, the Appeals Council declined to review the ALJ's decision. Thus, ALJ Chamberlain's January 27, 2000, decision became the final determination of the Commissioner.
Plaintiff initiated suit in federal district court on April 9, 2001. This action is timely because it was filed within the 60-day period established by statute for bringing actions for judicial review. 42 U.S.C. § 405(g).
III. Judicial Review
Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony v. Sullivan, 954 F.2d at 292; it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). The evidence must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling Stamping Co., 306 U.S. 262, 299-300, 59 S.Ct. 206, 217 (1939), cited in Harvey L. McCormick, Social Security Claims and Procedures § 672 (4th ed. 1991).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh evidence and resolve conflicts. See Anthony, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir 1990).
If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.
IV. Eligibility for Supplemental Security Income
Supplemental Security Income ("SSI") is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. § 1382(a), 1382c(a)(3)(A)-(C).
Supplemental Security benefits are authorized by Title XVI of the Social Security Act, and are funded by general tax revenues. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
The Social Security Act's general disability insurance benefits program ("DIB") is a separate and distinct program. However, applicants seeking benefits under either program must prove "disability" within the meaning of the Social Security Act, which defines disability in virtually identical language for both programs. See 42 U.S.C. § 423(d), 1382c(a)(3), 1382c(a)(3)(G); see also 20 C.F.R. § 404.1505(a), 416.905(a). Moreover, "[t]he law and regulations governing the determination of disability are the same for both [DIB] and SSI." Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995).
The DIB program provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a); see also Mathews v. Castro, 429 U.S. 181, 186 (1976). DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
Regulations at 20 C.F.R. Part 404 govern the Federal Old Age and Survivors Disability Insurance [DIB] whereas regulations at 20 C.F.R. Part 416 govern Supplemental Security Income [SSI] for the Aged, Blind Disabled. However, the language of the regulations are identical. See generally 20 C.F.R. Part 404, Part 416.
In either case, Social Security claimants bear a formidable burden of proof, "so stringent that it has been described as bordering on the unrealistic." Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). The Act defines disability as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(A). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Establishment of a disability is thus a dual process. First, the claimant must prove that (s)he suffers from a medically determinable impairment. 42 U.S.C. § 1382c(a)(3)(C). Second, the claimant must prove that an impairment or combination of impairments renders claimant unable to engage either in the work previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).
V. Sequential Evaluation Process
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. See 20 C.F.R. § 404.1520. This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps with explanatory parenthetical commentary are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1. (If so, disability is presumed and benefits are awarded. If not, the Commissioner must proceed to the next steps to determine whether the individual can perform either his former work or some less demanding employment.)
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f).
In conjunction with steps four and five determinations, the Commissioner utilizes a residual functional capacity ("RFC") assessment. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform the activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545; Social Security Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, at step four, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561. If not, however, the inquiry must proceed to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro, 815 F.2d at 1010; 20 C.F.R. § 404.1566.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. See 20 C.F.R. § 404.1545(a).
VI. Medical Evidence
At the July 6, 1999, hearing ALJ Chamberlain received and considered evidence regarding plaintiff's physical and mental impairments from several medical sources including plaintiff's treating physician, two treating specialists (a psychiatrist and a surgeon), a consultative examining physician, and several non-treating, non-examining consultative physicians. Of specific relevance to this proceeding, the medical evidence included records and reports from treating physician Dr. Mark Kreit, M.D., and a psychological evaluation from G. K. Ravichandran, M.D.
Dr. Kreit diagnosed and treated plaintiff for her lower back pain, depression, and gastritis. On June 6, 1999, Dr. Kreit indicated on a Texas Department of Human Services Food Stamps Eligibility Form that plaintiff could not work due to her physical disabilities of back pain, depression, and gastritis. Tr. 405.
Dr. Ravichandran, a psychiatrist and medical director at Shamrock Clinic, P.A., performed a psychiatric and psychological evaluation of the plaintiff on May 20, 1998. Dr. Ravichandran determined plaintiff's IQ score to be 64. Dr. Ravichandran's IQ findings were extrapolated from plaintiff's performance on the Shipley Institute for Living Scale ("Shipley") to an equivalent finding on the Wechsler Adult Intelligence Scale-Revise ("WAIS-R"). Dr. Ravichandran indicated that a score of 64 was "within the MD/MR range of cognitive abilities." Tr. 326. However, Dr. Ravichandran also stated that plaintiff's performance on the Shipley did not indicate cognitive impairment and that plaintiff had adequate conceptual and abstractive abilities.
In addition to the medical evidence, ALJ Chamberlain heard plaintiff's own testimony regarding her physical limitations and the depression she experiences due to her pain. ALJ Chamberlain found that in combination, the evidence demonstrated that the claimant suffers from hypertension, asthma, a cardiac disorder, degenerative disc disease, depression and gastritis. Tr. 15.
ALJ Chamberlain also received testimony from vocational expert ("VE"), Patricia Cowen, to determine whether work exists in the national economy that plaintiff can perform. VE Cowen testified that despite plaintiff's physical and psychological limitations and impairments, plaintiff could perform a number of unskilled jobs at the light and sedentary level of exertion, such as ticket seller, sorter, and packager.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
VII. ALJ's Decision
Following the hearing, ALJ Chamberlain issued a written opinion wherein she concluded that plaintiff is not disabled under governing rules. Using the sequential analysis framework, the ALJ made the following determinations:
Step 1: Plaintiff had not engaged in substantial gainful activity since January 23, 1998. Tr. 14.
Step 2: Plaintiff has hypertension, asthma, a cardiac disorder, degenerative disc disease, depression and gastritis, constituting severe impairments for purposes of disability determination. Tr. 15.
Step 3: Plaintiff's impairments do not solely or in combination meet or equal criteria of any impairments described in Appendix 1 to Subpart P of Regulations No. 4 ("the Listings"). Tr. 17.
Step 4: (A) Plaintiff has a residual functional capacity to perform light work in a low stress environment that involves the ability to lift and carry up to 10 pounds frequently, and 20 pounds occasionally, and to sit, stand, and work for not more than 1 hour at a time, for between 6 and 8 hours each. Plaintiff is capable of work that involves only simple repetitive instructions and no literacy beyond that demonstrated in her past work.
(B) Plaintiff is unable to perform her past relevant work. Tr. 19.
Step 5: Plaintiff can perform a number of unskilled jobs in the light or sedentary levels of exertion such as ticket seller, sorter, and packager.
Consequently, ALJ Chamberlain determined that plaintiff is "not disabled" within the framework of Rule 202.18, and her decision denied plaintiff's application for benefits.
VIII. Points of Error
Plaintiff asserts four points of error that are reprinted verbatim in the note. For analytical convenience, these points are rephrased and categorized as follows:
Plaintiff's Brief outlines the following points of error:
"1. The ALJ employed improper legal standard in evaluating the evidence by failing to accord adequate weight to the opinion of Plaintiff's long term treating physician, Dr. Kreit.
2. The ALJ erred in failing to develop the record regarding plaintiff's mental impairment.
3. The ALJ improperly discredited the result of the Shipley test indicating that plaintiff was retarded.
4. The ALJ employed improper legal standards in evaluating the plaintiff's residual functional capacity."
Pl.'s Br., p. 2.
1. The Commissioner failed to apply proper principles of law because:
the ALJ failed to give proper weight to the opinion of plaintiff's treating physician; and
the ALJ employed improper standards when evaluating plaintiff's residual functional capacity for work.
The Commissioner's decision is not supported by substantial evidence because:
the ALJ improperly discredited results of a "Shipley test" (indicating that plaintiff is retarded); and
the ALJ failed to adequately develop the administrative record regarding plaintiff's mental impairment.
IX. Legal Error Points
This section first addresses plaintiff's contention that the Commissioner failed to apply proper principles of law when weighing the opinion of plaintiff's treating physician. It examines second plaintiff's argument that the Commissioner failed to apply proper principles of law when determining plaintiff's residual functional capacity.A. Weight Afforded Treating Physician's Opinion 1. Treating Physician's Opinions
Dr. Mark Kreit, M. D., plaintiff's treating physician, began treating plaintiff on August 4, 1998. He diagnosed her as having lower back pain, depression, and gastritis. Tr. 329. Dr. Kreit repeatedly prescribed medications to address plaintiff's back pain, gastritis, and depression.
Included in the administrative record is a single-page "Physician's Statement" signed by Dr. Kreit on June 22, 1999. Tr. 405. The statement was submitted to the Texas Department of Human Services in connection with plaintiff's application for food stamp benefits. In response to a question inquiring as to the extent plaintiff is employable, Dr. Kreit checked a box for "Cannot Work," and further indicated that plaintiff's disabling factor was "physical." Elsewhere, Dr. Kreit stated his diagnosis as "Back pain; Gastritis; Depression." He further expressed his opinion that plaintiff's prognosis was "Fair — Good."
2. Weight Afforded by ALJ
ALJ Chamberlain accepted Dr. Kreit's diagnoses of back pain, gastritis and depression, but rejected his opinion that plaintiff cannot work. ALJ Chamberlain concluded that Dr. Kreit's disability statement was not a medical opinion, and therefore was not entitled to controlling weight. ALJ Chamberlain further concluded that she would only afford Dr. Kreit's disability statement "limited weight" because it was inconsistent with his prognosis of fair to good, and was otherwise unsupported by objective clinical or laboratory findings. Tr. 17.
3. Competing Arguments
Plaintiff argues that in rejecting and discounting Dr. Kreit's opinion, ALJ Chamberlain erred as a matter of law. Specifically, plaintiff asserts that under the circumstances, applicable law requires that the treating physician's opinion be given controlling weight because it is consistent with the record as a whole.
Alternatively, plaintiff contends that ALJ Chamberlain erred by failing to address and apply factors outlined in 20 C.F.R. § 404.1527(d) and 416.927(d) when determining what lesser weight to give Dr. Kreit's opinion. Plaintiff supports this argument by citing the Fifth Circuit's decision in Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000), wherein the Commissioner's decision denying benefits was remanded due to an ALJ's error in failing to apply these factors.
Additionally, plaintiff argues that ALJ Chamberlain had a duty to seek clarification or additional evidence if she believed the treating physician's records were inconsistent or otherwise inadequate. Presumably, plaintiff asserts that the ALJ improperly disregarded the instruction in Social Security Ruling 96-2p which states that additional evidence or clarifying reports may be necessary when the treating source's medical opinion appears lacking or inconsistent. See Social Security Ruling 96-2p, 61 F.R. 33491 (July 6, 1996). Plaintiff indirectly cites to 20 C.F.R. § 404.1512(e), 416.912(e) which states that when the evidence from treating physician's is inadequate to determine disability, the ALJ will recontact medical sources for additional information. See 20 C.F.R. § 404.1512(e), 416.912(e). This argument was not raised as a point of error, and was mentioned only in passing in plaintiff's brief. Accordingly, its merit is not addressed.
In response, the Commissioner's brief argues that ALJ Chamberlain properly accorded little weight to Dr. Kreit's assessment that the plaintiff is unable to work because the record as a whole does not support such an assessment. The Commissioner contends that the ALJ evaluated Dr. Kreit's assessment in light of the treatment notes and findings of numerous other treating physicians, and ultimately determined that there was medical evidence from examining physicians refuting Dr. Kreit's analysis, and supporting the ALJ's finding that the plaintiff can perform light work. Defendant's Brief at 6; Tr. 15-20.
As for plaintiff's alternative argument, Commissioner Barnhart argues that ALJ Chamberlain was not required to consider the six 404.1527(d) and 416.927(d) factors. The Commissioner's brief contends that plaintiff's reliance on Newton v. Apfel is misplaced because Newton only requires that these six factors be addressed when the ALJ summarily rejects the opinions of a treating physician, based only on the testimony of a non-speciality, non-treating medical expert. See Commissioner's Br., p. 5-6.
4. Principles of Analysis
One is hard-pressed to imagine a more abstruse set of rules than those embodied in the Social Security Act, its voluminous implementing regulations, and multitudinous and constantly-evolving policy interpretations found in Social Security Rulings. Fortunately, this complex subject matter is not always arcane. In many instances, the Commissioner succeeds admirably in fashioning a pragmatic, common-sense analytical model.
One such point of light is found in the often-raised issue of how much weight to afford treating physicians' opinion. Commendably, the Commissioner has fashioned a three-pronged analytical construct that flows naturally from one step to the next, and illuminates the inquiry in a way that administrative adjudicators of claims can make logical, just, consistent, and supportable determinations.
First, common sense and objective reasoning suggest that opinions, diagnoses, and medical evidence of a treating physician intimately familiar with a claimant's injuries, treatments, and responses usually constitute the best evidence of the nature and severity of a patient's impairment. Consequently, both the Commissioner's regulations and governing circuit precedent postulate that a treating physician's medical opinion is entitled to great deference. The Commissioner even requires that a treating physician's opinion as to the nature and severity of a patient's impairment be given controlling weight if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence." 20 C.F.R. § 404.1527(d)(2); SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996). Likewise, the Fifth Circuit similarly holds that "`ordinarily the opinions, diagnoses, and medical evidence of a treating physician . . . [are] accorded considerable weight in determining disability.'" Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (citing Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir. 1984); see also Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001) (citing Greenspan, 38 F.3d at 237 (internal citations omitted)); Newton, 209 F.3d at 455; Legget, 67 F.3d at 566.
Common experience also teaches that treating physicians often are unfamiliar with technical and specific Social Security Act disability definitions. Moreover, human nature is such that an intimate physician-patient relationship may on occasion affect a physician's objectivity. Consequently, the Commissioner's regulations and governing circuit precedent both recognize that treating physicians' opinions on ultimate issues governing entitlement to benefits are not entitled to special significance. The second prong of the analysis, then, is to examine whether a treating physician's opinion consists of medical findings or an ultimate-issue expression.
If the latter, circuit law acknowledges that it remains the sole responsibility of the Commissioner to determine whether a claimant is "disabled" under governing rules, notwithstanding the express and well-established deference afforded treating physician's opinions as to the nature and severity of patients' impairments. See Newton, 209 F.3d at 455; Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). The Commissioner's regulations reflect this rule even more succinctly:
We will not give any special significance to the source of an opinion on issues reserved to the Commissioner [i.e., administrative findings dispositive of the case such as if the claimant is disabled or unable to work]
See 20 C.F.R. § 416.927(e)(3). Thus, the second analytical prong counterbalances initial deference afforded treating physician's opinions and safeguards against abuse.
The third prong of the analysis addresses the vast middle ground of how much deference to afford a treating physician opinion when it is not entitled to controlling weight. Again, governing circuit law and the Commissioner's regulations and rulings are in accord. The Fifth Circuit allows an ALJ to reject or discount a treating physician's opinion — even with respect to medical issues — when "good cause" is shown. See Myers, 238 F.3d at 621; Newton, 209 F.3d at 455-56; Greenspan, 38 F.3d at 237; Moore, 919 F.2d at 905. Good cause may exist when the physician's state ments are conclusory and brief; when statements are unsupported by medically acceptable clinical, laboratory, or diagnostic techniques; otherwise unsupported by the evidence; or when the treating physician is not credible because (s)he is "leaning over backwards to support the application for disability benefits." Scott, 770 F.2d at 485; see also Myers, 238 F.3d at 621 (citing Greenspan, 38 F.3d at 237); Newton, 209 F.3d at 456.
The Commissioner's policy and interpretations are more specific. Social Security rulings 96-2p and 96-5p instruct administrative adjudicators to weigh a treating source's opinion in light of six factors provided in the Commissioner's regulations published in 20 C.F.R. § 404.1527 and 416.927. See SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996); SSR 96-5p, 61 F.R. 34471, 34473 (July 2, 1996). An ALJ should apply the same factors regardless of whether determining weight to afford a treating physician's medical opinion or ultimate-issue opinion. Id.
These six factors are as follows:
a. Length of treatment;
Frequency of examination;
Nature and extent of treatment relationship;
Support of opinion afforded by medical evidence;
Consistency of opinion with the administrative record as a whole; and
Specialization of the treating physician.
20 C.F.R. § 404.1527(d)(2) — (d)(6), 416.927(d)(2) — (d)(6).
5. Application and Discussion
Plaintiff's point of error first attacks ALJ Chamberlain's election not to give Dr. Kreit's opinion controlling weight. Second, plaintiff contends that in any event, ALJ Chamberlain's decision to afford Dr. Kreit's opinion only limited weight cannot stand because she failed to weigh the opinion in light of all the factors listed above.
a. Failure to Afford Controlling Weight
To the extent plaintiff complains that ALJ Chamberlain erred in not giving Dr. Kreit's ultimate-issue opinion ("cannot work") controlling weight, plaintiff's point is unmeritorious. As demonstrated in the preceding section, a treating physician's opinion on ultimate issues reserved to the Commissioner is never entitled to controlling weight. The ALJ is under no obligation to accord Dr. Kreit's opinion that the plaintiff cannot work controlling weight because it is a determination reserved to the Commissioner. See 20 C.F.R. § 404.1529(e). In fact, an ALJ is expressly prohibited from giving controlling weight to such opinions because it would, in effect, abdicate the Commissioner's statutory authority to make such determinations. See Social Security Ruling 96-5p, 61 F.R. 34471, 34473 (July 2, 1996).
To the extent plaintiff complains that ALJ Chamberlain erred in not giving Dr. Kreit's medical-issues opinion (diagnoses of "back pain, gastritis and depression") controlling weight, her argument is similarly misdirected. Nothing remotely suggests that ALJ Chamberlain did not fully credit and adopt Dr. Kreit's medical diagnoses. She repeatedly recognized in her decision that the plaintiff suffers from impairments including degenerative disc disease, back pain, gastritis and depression. Further, at step two of the sequential evaluation process, she found that plaintiff suffers from numerous conditions which, in combination, constitute "severe impairments." This finding, when coupled with other findings at steps one and four, meant that plaintiff carried her burden of proof to show a prima facie case of disability. ALJ Chamberlain ultimately determined that these impairments did not rise to the level of disability, but this determination was based on factors other than rejection of Dr. Kreit's medical opinions. Tr. 15-17.
In sum, plaintiff's failure-to-afford-controlling-weight argument lacks merit as to the treating physician's ultimate-issue opinion, and is moot as to his medical-issue opinions.
b. Failure to Address Section 404.1527 and 416.927 Factors
Plaintiff's alternative argument carries considerably more weight. ALJ Chamberlain's decision only expressly mentions one of the 404.1527 and 416.927 factors — consistency of the opinion with the administrative record as a whole — as affecting her determination as to what weight to afford Dr. Kreit's opinions. Thus, plaintiff correctly argues that the administrative record reflects that not all six factors relevant to determining weight of Dr. Kreit's opinions were applied. However, inasmuch as Dr. Kreit's medical opinions were fully credited, this argument necessarily is limited to whether there was error in failing to apply the six-factor analysis to Dr. Kreit's ultimate-issue opinion.
The Commissioner's brief astonishingly argues that ALJ Chamberlain did not have a duty to review the six 404.1527(d) factors when making her determination. Completely ignoring explicit requirements of SSR 96-5p, (discussed in the preceding section), the Commissioner's brief argues instead that Newton v. Apfel only requires that these six factors be addressed in limited circumstances (i.e., when ALJ summarily rejects opinions of a treating physician, based only on testimony of a non-speciality, non-treating medical expert). While this narrow interpretation of Newton v. Apfel can be argued, the notion that Social Security claims adjudicators are free to disregard the Commissioner's own policy statements and interpretations cannot. Section 404.1527(d)(2) is an implementing regulation whereas SSR 96-2p is a "Social Security Ruling." Generally, substantive regulations authorized by and consistent with a statute have the force and effect of law, and are binding on federal courts, provided the regulation is "not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706 (2)(A), (C); see Chrysler Corp. v. Brown, 441 U.S. 281, 295-96 (1979); Batterton v. Francis, 432 U.S. 416, 425 (1977). Social Security Rulings are "binding on all components of the Social Security Administration," and represent statements of policy and interpretations that have been adopted by the Administration. 20 C.F. R. § 442.406(b)(1) (1991); see also Spellman v. Shalala, 1 F.3d 357, 361 (5th Cir. 1993); Alamo Express, Inc. v. United States, 613 F.2d 96 (5th Cir. 1980); Pacific Molasses Co. v. Federal Trade Commission, 356 F.2d 386 (5th Cir. 1966).
Moreover, two federal circuit courts of appeal hold that before discarding or discounting opinions of a treating physician, an ALJ is required to consider all six factors. See Clark v. Comm'n of Soc. Sec., 143 F.3d 115, 118 (2nd Cir. 1998); Goatcher v. United States Dep't of Health Human Serv.s, 52 F.3d 288, 290 (10th Cir. 1995). There are no contrary holdings by appellate-level federal courts. Thus, the weight of appellate authority from other circuits is that an ALJ fails to apply proper principles of law when omitting the six-factor analysis from the credibility determination regarding a treating physician's opinion.
The governing Fifth Circuit court of appeals has addressed the question twice, each time, however, in a narrower factual context. In both cases, the ALJ failed to give the treating physicians' opinions any weight. See Myers v. Apfel, 238 F.3d 617 (5th Cir. 2001); Newton v. Apfel, 209 F.3d 488 (5th Cir. 2000). In Newton the court surveyed existing case law, including the Second and Tenth Circuit cases cited in the preceding paragraph. The court's opinion states:
This court now similarly holds that an ALJ is required to consider each of the . . . factors before declining to give any weight to the opinions of the claimant's treating specialist. The ALJ failed to perform this analysis, which should now be conducted on remand.
Newton, 209 F.3d at 456 (italics added). In Myers, decided approximately ten months later, the court's opinion suggests that the rule adopted in Newton is not limited to no-weight cases. The Myers opinion states:
An ALJ must consider the [404.1527 and 416.927] factors before declining to give any weight to the opinions of a treating doctor[.] . . . The ALJ failed to accord considerable weight to the treating physicians' opinions, diagnoses and medical evidence, without subjecting them to the above analysis or showing good cause for not giving them considerable weight. . . .
Accordingly, we remand for consideration in light of the foregoing.
Myers, 238 F.3d at 621 (italics added).
Since Newton expresses the court's intent to hold "similarly" with the Second and Tenth Circuits, and because Myers indicates that failure to accord "considerable weight" to a treating physician's opinion without subjecting it to the six-factor analysis warrants remand, one logically deduces that the Fifth Circuit also views the six-factor analysis as mandatory. A contrary interpretation would be unnatural because it would contravene express language of Social Security Ruling 96-5p — "In evaluating the opinions of medical sources on issues reserved to the Commissioner, the adjudicator must apply the applicable factors in 20 C.F.R. § 404.1527(d) and 416.927(d)." SSR 96-5p, 61 F.R. 34471, 34473 (July 2, 1996). Nothing in Newton or Myers intimates intent of the Fifth Circuit to depart from the clear mandates of these regulations and rulings.
One district court within this circuit takes a contrary position. In Contreras v. Massanari, 2001 WL 520815 (N.D.Tex. 2001), the court stated that the decision in Newton v. Apfel is limited to circumstances when an ALJ summarily rejects opinions of a treating physician based only on testimony of a non-specialty medical expert who has not examined the claimant. While those were the operative facts in Newton, nothing in that court's opinion suggests that the Fifth Circuit intended to make a principled distinction between its rule and the rules adopted in the Second and Tenth Circuits. Moreover, Contreras does not cite or discuss the Fifth Circuit's subsequent clarifying decision in Myers, which appears to extend Newton's holding to any case wherein considerable weight is not accorded to a treating physician's opinion. This report, therefore, does not adopt the narrow construction utilized in Contreras.
In sum, while an ALJ may for good cause accord limited weight to a treating physician's opinion, (s)he can never ignore that opinion as it pertains either to medical questions or ultimate issues. Further, an ALJ may not afford the opinion little or no weight without first engaging in the six-factor analysis contained in the cited regulations, in the manner as interpreted by the Commissioner. Consequently, in actions seeking judicial review, unsuccessful claimants who show that an ALJ failed to subject the treating-physician opinion to the prescribed analysis thereby proves that the Commissioner failed to apply proper principles of law when denying the claim.
Plaintiff has carried that burden here by showing that ALJ Chamberlain failed to apply the prescribed six-factor analysis when giving little weight to treating physician Kreit's ultimate-issue opinion that plaintiff is disabled from working. However, the inquiry does not end at this point because ALJ Chamberlain's only error was failure to follow Social Security Ruling 96-5p when evaluating that ultimate-issue opinion. When an ALJ errs by failing to apply a ruling, a plaintiff seeking judicial review must also demonstrate prejudice arising from that error to be entitled to relief. Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (citing Pacific Molasses Co. v. Fed. Trade Comm'r, 356 F.2d 386 (1966)); see also Morton v. Ruiz, 415 U.S. 199 (1974).
Social Security Ruling 96-5p directs claims adjudicators considering a treating physician's opinion on an ultimate issue reserved for the Commissioner to apply the same factors which regulations require to be applied when weighing medical opinions.
A claimant can establish prejudice by showing that additional evidence could have been produced, and "that the additional might have led to a different decision." Newton, 209 F.3d at 458 (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995) (Ripley ultimately citing Kane v. Heckler, 731 F.2d 1216 (5th Cir. 1984). In Newton, the plaintiff established that supplemental information could have been produced. Id. Plaintiff further demonstrated that the additional information would have remedied plaintiff's incomplete medical history and allowed the ALJ to give proper weight to the treating physician's opinion, thus altering the final decision. Id.
Here, plaintiff has not shown that any such prejudice flowed from ALJ Chamberlain's error in not applying the six-factor analysis to Dr. Kreit's ultimate-issue opinion of "cannot work." Moreover, plaintiff does not argue any other instances of prejudice. Consequently, plaintiff's first point of error — while valid to the extent of demonstrating legal error — ultimately fails due to failure to show attendant prejudice.
B. Failure To Properly Evaluate Plaintiff's Residual Functional Capacity
This point of error is similar to the first in that it complains that ALJ Chamberlain failed to follow a Social Security ruling. Specifically, plaintiff argues that Social Security Ruling 96-8p requires claims adjudicators — when determining residual functional capacity — to perform a function-by-function assessment of a claimant's physical, mental, and sensory abilities. Regarding mental abilities, the ruling also requires adjudicators to evaluate, inter alia, a claimant's "work-related mental functioning," and to then consider whether the claimant can sustain work related mental activities in a work setting "on a regular and continuing basis." Plaintiff argues that ALJ Chamberlain's decision reflects that she performed neither of these assessments. Consequently, plaintiff contends that the Commissioner's decision denying benefits is based on flawed methodology and thereby constitutes failure to apply proper legal principles.
The Commissioner's brief, unfortunately, does not respond directly to these arguments. Rather, the Commissioner argues broadly that the ALJ applied the correct legal standards, and her decision that plaintiff could perform light work was supported by substantial evidence.
In Myers v. Apfel, the Fifth Circuit reversed the Commissioner's decision which was based on an ALJ's residual functional capacity determination reached without specifically addressing all of the function concerns of Social Security Ruling 96-8p. The Fifth Circuit's opinion states its reasoning in unmistakable terms:
The ALJ erred in failing to address the concerns of Social Security Rulings 96-8p and 96-9p in determining Myers's Residual Functional Capacity, specifically her ability to perform all of the strength demands of sedentary work. He found that she could sit, lift, and carry ten pounds; would need a sit/stand option; and would need to stretch every thirty minutes. The ALJ failed, however, to fully address standing, walking, and pushing/pulling. The ALJ also failed to set out whether Myers could perform these demands on a regular and continuing basis. Perhaps most importantly, the ALJ failed to resolve the inconsistencies in the evidence. He relied on the opinion of the ME, Dr. Craig, who did not examine or treat Myers, but based his conclusion that she met the requirements for sedentary work on an incomplete reading of the treating physicians' reports. However, the medical evidence as a whole indicates that Myers cannot meet the requirements.
Id., at 620 — 621.
Similarly, the Commissioner's decision was reversed in Ivey v. Barnhart. See Ivey v. Barnhart, 2001 U.S. Dist. LEXIS 22399 (N.D.Tex. Dec. 18, 2001). In Ivey, the district court, applying Myers v. Apfel, held:
By not employing a function-by-function analysis, required by SSR 96-8p, the ALJ engaged in a flawed methodology, thereby tainting his decision to deny insurance benefits . . . Accordingly, the court finds that the ALJ erred by not properly addressing the concerns raised in SSR 96-8p, specifically whether Ivey could perform the strength demands of working as a parking lot attendant on a "regular and continuing" basis.
Consequently, plaintiff is correct when arguing that an ALJ's failure to address each factor enumerated for non-exertional impairments in SSR 96-8p, and to articulate findings therefor, constitutes legal error. Plaintiff's point of error founders again, however, on the prejudice prong of the analysis. As noted in the preceding section, to win a reversal based on a legal error consisting of the Commissioner's violation of her own rules and procedures, a plaintiff must show resulting prejudice. See Newton, 209 F.3d at 459 (citing Hall, 660 F.2d at 119). Here, as with the earlier point, plaintiff does not show or even argue prejudice attributable to ALJ Chamberlain's failure to address the mental function concerns of SSR 96-8p. Consequently, this point likewise fails.
One district court within the circuit takes a different view. In Turman v. Barnhart, 2001 U.S. Dist. Lexis 20086 at *13 (N.D.Tex. 2001), the court concluded that SSR 96-8p "does not require an administrative law judge to discuss all of a claimant's abilities on a function-by-function basis," and distinguished Myers v. Apfel as being limited in application to factual circumstances where an ALJ erroneously relies on testimony of a physician who did not examine the complainant. Id. at *15. While such was the case in Myers, the circuit court's opinion gives no hint that the ruling should not be limited to those exact facts.
Prejudice was not analyzed separately in either Myers v. Apfel or Ivey v. Barnhart. However, the Fifth Circuit in Myers clearly found prejudice when observing that the ALJ's failure to resolve inconsistencies in the evidence was of utmost significance because the remaining "medical evidence as a whole" conflicted with the ALJ's findings based on opinion of a non-treating, non-examining, consulting physician. Myers v. Apfel, 238 F.3d at 621. In Ivey v. Barnhart, the prejudice issue apparently was not raised, and therefore not considered in the district court. See Ivey v. Barnhart, 2001 U.S. Dist. LEXIS 22399 (N.D.Tex. Dec. 18, 2001).
X. Substantial Evidence Points
Plaintiff complains that Commissioner Barnhart's decision is not supported by substantial evidence because ALJ Chamberlain discredited and ignored results of a psychological evaluation known as a "Shipley test," and because she failed to adequately develop the administrative record regarding plaintiff's mental impairments. While these points are raised and discussed separately in plaintiff's brief, they are inextricably intertwined by subject matter. Moreover, as subsequent discussion reveals, they represent two prongs of the same analytical issue. Consequently, they are examined together.
A. Dr. Ravichandran's Assessment of Plaintiff's I.Q.
As reported earlier, Dr. G.K. Ravichandran, M.D., a psychiatrist, assessed plaintiff's I.Q. score at 64 on the Wechsler Adult Intelligence Scale-Revised ("WAIS-R") test. Dr. Ravichandran derived this score not by administering the WAIS-R test, but rather by extrapolating results of a different test known as "Shipley Institute Living Scale test," which Dr. Ravichandran administered to plaintiff.
I.Q. is an abbreviation of intelligence quotient. Technically, an intelligence quotient is the measure of intelligence obtained by dividing the patient's mental age, as ascertained by the Binet test, by his chronological age and multiplying the result by 100. See Dorland's Medical Dictionary (28th ed. 1994). In general, I.Q. scores indicate the relative and comparative innate or learned ability of an individual to carry motor-tasks or to understand and answer questions verbally or in writing. See id. An I.Q. of 100, or average, results when chronological and mental ages are equal. See id.
The Wechsler series or WAIS-R is the only IQ test cited in the Social Security Regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (2002). The WAIS is "the best standardized and most widely used intelligence test in clinical practice today." Harold L. Kaplan Benjamin J. Saddock, Synopsis of Psychiatry: Behavioral Sciences/Clinical Psychiatry (8th ed. 1998). The WAIS "comprises 11 subtests made up of 6 verbal subtests and 5 performance subtest which yield a verbal IQ, a performance IQ, and a combined full scale IQ." See id.
B. Weight Afforded by ALJ
When evaluating plaintiff's mental impairments, ALJ Chamberlain noted but effectively ignored Dr. Ravichandran's opinion regarding plaintiff's I.Q. ALJ Chamberlain explained that she found "little support for the doctor's conclusions about claimant's IQ, because it was not based upon tests accepted under controlling regulations." Tr. 16.
C. Competing Arguments
Plaintiff argues that administrative law judges who adjudicate social security disability claims must fully and fairly develop facts relevant to those claims. Moreover, when — as here — the claimant is not represented by counsel at the administrative hearing, that duty is heightened. Plaintiff argues that Dr. Ravichandran's I.Q. assessment suggests that plaintiff has an additional and potentially disabling impairment of mental retardation. Plaintiff argues that ALJ Chamberlain erred in rejecting Dr. Ravichandran's assessment and not further developing the administrative record regarding mental retardation. Specifically, plaintiff contends that the record is not fully developed due to ALJ Chamberlain's failure to obtain a further consultative psychological evaluation.
Commissioner Barnhart responds that the ALJ appropriately rejected the results of plaintiff's Shipley test because that test does not provide a diagnosis of mental retardation. Second, she argues that possible evidence of a low I.Q. score is not evidence of mental retardation, and without such evidence, the ALJ did not have a duty to further develop the record with consultative psychological examinations. In that respect, Commissioner Barnhart argues that to establish a disability of mental retardation, plaintiff must demonstrate "significant subaverage general intellectual functioning with deficits in adaptive behavior." Commissioner Barnhart contends that plaintiff has not demonstrated deficits in adaptive behavior, Lastly, the Commissioner argues that plaintiff has failed to demonstrate prejudice arising from the alleged error.
D. Principles of Analysis 1. ALJ's Duty to Develop Administrative Record
Both the Social Security Act and the Commissioner's implementing regulations impose on administrative law judges adjudicating claims the duty to fully and fairly develop facts relative to a claim for benefits. Kane, 731 F.2d at 1219-1220; 42 U.S.C. § 405(g); 20 C.F.R. § 410.640 (2002). When the claimant is unrepresented by counsel, this basic obligation to develop a full and fair record rises to a "special duty" to "`scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.'" Kane, 731 F.2d at 1220 (quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978) and Clark v. Harris, 638 F.2d 1347, 1351 (5th Cir. 1981) (opinion withdrawn due to factual misinformation); see also Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). An administrative law judge's failure to carry out this duty precipitates a decision not informed by sufficient facts, and, consequently, is considered unsupported by substantial evidence. James v. Bowen, 793 F.2d 703, 704 (5th Cir. 1986); (quoting Kane, 731 F.2d at 1219); see also Brock v. Chater; Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979); McGee v. Weinberger, 518 F.2d 330 (5th Cir. 1975).
The duty to further develop an administrative record is not infinite, however. It is limited by several common-sense and pragmatic factors. For example, while regulations authorize an ALJ to seek a consultative examination to develop a full and fair record, the decision is discretionary. An ALJ need not order a consultative evaluation unless it is necessary to enable the ALJ to make the disability determination. Turner v. Califano, 563 F.2d 669,671 (5th Cir. 1977); 20 C.F.R. § 404.1527. No duty to investigate further arises unless the existing evidentiary record raises a reasonable suspicion of a potentially disabling impairment that has not been fully evaluated. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987). Finally, such further development should not be undertaken purely for convenience, i.e., to aid in determining whether a treating source's medical opinion should receive controlling weight if the case record is otherwise adequately developed. See Social Security Ruling 96-2p, 61 F.R. 34490, 34491 (July 2, 1996).
See 20 C.F.R. § 404.1517 (2002).
In an action seeking judicial review, a plaintiff is not automatically entitled to reversal upon showing this type of substantial evidence deficiency. Rather, the plaintiff must also demonstrate prejudice arising from the error. Kane, 731 F.2d at 1220 (citing Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972). Consequently, federal district courts reverse decisions for want of substantial evidence only when an appealing plaintiff demonstrates (1) the ALJ failed to carry out the duty to fully and fairly develop the record, and (2) the plaintiff was prejudiced by that failure. Id.
2. Mental Retardation as a Disabling Impairment
Below average intelligence alone does not constitute a non-exertional impairment. See Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir. 1990). However, mental retardation as defined in the Listings does qualify. Id. The "Listings" in 20 C.F.R. Part 404, Subpt. P, App. 1, set forth physical and mental impairments and indicators of severity which, if present, direct a finding of presumptive disability. 42 U.S.C. § 1382c(a)(3)(A) (1994); 20 C.F.R. § 416.920d (2002). Listing § 12.05 defines mental retardation as:
"significantly subaverage general intellectual functions with deficits in adaptive behavior initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22."
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (2002). In addition, the listings set forth the severity of mental retardation necessary to qualify as disabled. In short, disability due to mental retardation consists of three parts: (1) impaired or subaverage intellectual functioning; (2) accompanied by deficits in adaptive behavior; (3) that rise to the requisite level of severity. Thus, I.Q. scores alone are insufficient to indicate disabling mental retardation. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (2002); Johnson, 894 F.2d at 686.
Section 12.05 reads in part:
"The required level for this disorder is met when the requirements in A, B, C, or D are satisfied.
Mental incapacity evidenced by dependence upon others for personal needs (toileting, eating, dressing or bathing) and inability to follow direction such that use of standardized measures of intellectual functioning is precluded; OR
A valid verbal, performance or full scale IQ of 59 or less; OR
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; OR
A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following (1) marked restriction of activities of daily living; or (2) marked difficulties in maintaining social functioning; or (3) marked difficulties in maintaining concentration, persistence or pace; or (4) repeated episodes of decompensation, each of extended duration."
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (2002)
E. Application
Essentially, plaintiff argues that ALJ Chamberlain improperly rejected Dr. Ravichandran's estimate that plaintiff's Shipley test results reflect an I.Q. score equivalent to 64 on the WAIS-R. Thereby, she failed to fairly consider all of the relevant evidence. Moreover, the failure to fairly consider the Shipley-generated I.Q. evidence caused ALJ Chamberlain to not recognize that plaintiff's low I.Q. raised a reasonable suspicion of mental retardation. That failure, in turn, caused ALJ Chamberlain to not fully develop the administrative record by obtaining a consultative psychological examination relative to mental retardation.
The Commissioner's regulations acknowledge certain tests as reliable methods for determining I.Q. See 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(D)(6) (2002). The Shipley test is not so expressly recognized. However, the regulation allows claim adjudicators to accept and use extrapolated results from other generally accepted tests under certain appropriate conditions.
Section 12.00(D)(6) states, "The IQ scores in 12.05 reflect values from tests of general intelligence that have a mean of 100 and a standard deviation of 15, e.g. the Wechsler series." 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(D)(6) (2002). Section 12.05 further states that "IQs obtained from standardized tests that deviate from a mean of 100 and a standard deviation of 15 require conversion to a percentile rank so that we can determine the actual degree of limitations reflected by the IQ scores." 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00(D)(6)(c) (2002).
Plaintiff's brief, however, does not argue or otherwise demonstrate that appropriate conditions were met for using the Shipley test as a reliable, alternative measure of I.Q. in this instance. Dr. Ravichandran's evaluation does not reflect conversion to a percentile rank whereby the Commissioner might determine the actual degree of limitations reflected by plaintiff's extrapolated I.Q. score. The brief cites no case authority — and the court's research fails to disclose any — supporting the assertion that rejection of the Shipley test as a measure of I.Q. is error. Finally, the Shipley test itself does not purport to measure or diagnose mental retardation. Accordingly, plaintiff fails to demonstrate that ALJ Chamberlain erred when she elected to afford little weight to Dr. Ravichandran's assessment that plaintiff's I.Q. score was 64.
The Shipley Institute of Living Scale measures the intellectual ability and impairment of individuals age 14 years and older. See Harold L. Kaplan Benjamin J. Saddock, Synopsis of Psychiatry: Behavioral Sciences/Clinical Psychiatry (8th ed. 1998); see also Australian Council Education Research, Psychological Catalogue: Intelligence and General Ability available at www.acer.edu.au. The Shipley test measures the discrepancy between vocabulary and abstract concept formation, providing a useful measure of cognitive impairment. See Id. It is used as a convenient intelligence measure because it is self-administrating and brief. The rationale for the Shipley test is that pathology does not influence an individual's cognitive abilities equally. Clinical research suggests that vocabulary is relatively resistant to change whereas abstract thinking is more susceptible to cognitive deterioration associated with brain dysfunction, mental disorders and normal aging. Id.
Even were the court to assume arguendo that Dr. Ravichandran's extrapolation constituted a valid measurement of plaintiff's I.Q., and if the court were further to make an equally unjustified assumption that evidence of I.Q. of 64 alone raises a reasonable suspicion of disabling mental retardation such that ALJ Chamberlain had a duty to further develop the record by obtaining a consultative psychological examination relative to mental retardation, plaintiff fails to show that she was prejudiced by such error. Plaintiff again fails to identify or proffer any evidence that, had the record regarding mental retardation been developed further, would have changed the result.
Plaintiff never claimed mental retardation as a cause of disability on her application for Supplemental Security Income. Plaintiff never articulated that mental retardation limited her ability to work or otherwise disabled her at the administrative hearing. She never proffered new evidence of mental retardation with her Request for Review of Hearing Decision. In addition, no physician — including Dr. Ravichandran — diagnosed or raised a specific concern that plaintiff may be mentally retarded. The Fifth Circuit has repeatedly held that when claimants makes no formal contention of mental retardation, isolated comments or treatment notations about the limits of a claimant's intellectual functioning are not sufficient to raise a suspicion of mental retardation. See Pierre v. Sullivan, 884 F.2d 799, 802-802 (5th Cir. 1989); Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987); see also McGee, 518 F.2d at 332.
Finally, Dr. Ravichandran's evaluation specifically states that plaintiff's "performance on the Shipley did not indicate cognitive impairment"; that plaintiff has "adequate conceptual and abstractive abilities"; and that there "were no indications of psychomotor retardation." Tr. 326. (Italics added in each instance.) Thus, his observation regarding plaintiff's cognitive abilities is equivocal; his evaluation is totally devoid of any suggestion that plaintiff exhibits deficits in adaptive behavior; and his report does not provide any information regarding a level of severity matching those identified in regulations as indicative of disability.
XI. RECOMMENDATION
Because none of plaintiff's points of error should be sustained, the Commissioner's decision should be affirmed.
XII. OBJECTIONS
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.