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Scott v. Berryhill

United States Court of Appeals, Eighth Circuit

April 28, 2017

Paul Scott Plaintiff- Appellant
Nancy A. Berryhill, [1] Acting Commissioner of Social Security Defendant-Appellee

          Submitted: January 12, 2017

         Appeal from United States District Court for the Eastern District of Arkansas - Batesville

          Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.

          GRUENDER, Circuit Judge.

         Paul Scott appeals the decision of the district court[2] affirming the administrative law judge's ("ALJ") denial of his application for supplemental security income under Title XVI of the Social Security Act. See 42 U.S.C. § 1381-1383f. Because the decision of the ALJ is supported by substantial evidence on the record as a whole, we affirm.

         I. Background

         Scott applied for supplemental security income in January 2013, alleging disability due to a back condition, migraine headaches, hearing loss, and a left eye injury. He alleged a disability onset date of October 15, 2012. Scott did not complete the eighth grade, but he has held jobs as an animal caretaker farm worker (a semiskilled occupation), construction worker, and power plant cleaner. Scott injured his back in a fall and eventually stopped working in 2012 due to back pain.

         Scott's claim was denied initially, upon reconsideration, and after a hearing before an ALJ. The ALJ employed the five-step evaluation process prescribed by 20 C.F.R. § 416.920(a). At step one, the ALJ considers whether the claimant is performing "substantial gainful activity, " and, if so, finds that the person is not disabled. 20 C.F.R. § 416.920(a)(4)(i). The ALJ found that Scott had not engaged in substantial gainful activity since the application date. At step two, the ALJ considers whether the claimant has a "severe medically determinable physical or mental impairment that meets the duration requirement." Id. at § 416.920(a)(4)(ii). Here, the ALJ found that Scott suffered two severe impairments: borderline intellectual functioning and a back disorder. At step three, the ALJ considers whether the claimant's severe impairment meets or equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at § 416.920(a)(4)(iii). If so, then the ALJ must find the claimant disabled. 20 C.F.R. § 404.1520(d). At this step, the ALJ found that Scott's impairments do not meet or equal one of the listed impairments. The ALJ considered Listing 12.05, finding that Scott did not manifest deficits in adaptive functioning prior to age twenty-two. The ALJ noted Scott's history of attending special education classes but explained that the consultative examiners did not identify any other significant deficits. The ALJ also considered Listing 12.02, finding that Scott has only mild restrictions in daily living activities, mild difficulties in social functioning, and moderate difficulties in concentration, persistence, or pace. The ALJ noted that Scott is able to cook, help feed his sister's calves, do laundry, dust, drive short distances, and care for personal hygiene. Although Scott reads and writes poorly and cannot balance a checkbook, he communicates effectively, can perform simple math, requires no reminders to complete chores, and is able to focus enough to watch television three hours per day. Thus, the ALJ found Scott did not meet or equal a listed impairment.

         At step four, the ALJ determines the claimant's residual functional capacity ("RFC") and considers whether the claimant can perform past relevant work. Id. at § 416.920(a)(4)(iv). The ALJ found that Scott has the residual functional capacity to perform medium, unskilled work. However, the work is limited to jobs with few variables, little independent judgment, and interpersonal contact incidental to the work performed. Supervision should be simple, direct, concrete, and brief, and the work cannot involve making change. Tasks should be able to be "learned and performed by rote." The ALJ then found that Scott cannot perform past relevant work. At step five, the ALJ considers the claimant's RFC, age, education, and work experience to determine whether the claimant can adjust to other work. Id. at § 416.920(a)(4)(v). The vocational expert testified that an individual with Scott's RFC could work as a cleanup worker or poultry hanger, jobs existing in substantial numbers in the national economy. As a result, the ALJ found Scott not disabled and denied his application for supplemental security income. The Appeals Council denied review.

         Scott challenged the ALJ's decision in the Eastern District of Arkansas pursuant to 42 U.S.C. § 405(g). The district court affirmed the ALJ's decision, and Scott now appeals. He challenges the ALJ's determination that he did not meet Listing 12.05C and contends that the ALJ failed to include his limitations in concentration, persistence, or pace in the RFC hypothetical.

         II. Discussion

         We review the district court's determination de novo, affirming the ALJ's decision if it is "supported by substantial evidence on the record as a whole." Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (quotation omitted). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner's conclusion." Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (quotation marks omitted)). While we must consider evidence both supporting and detracting from the ALJ's decision, we will not reverse "simply because some evidence may support the opposite conclusion." Id. Rather, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Id.

         A. Listing 12.05C

         First, substantial evidence supports the ALJ's determination that Scott does not meet or equal Listing 12.05C. Listing 12.05C requires: 1) "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested . . . before age 22, " 2) "[a] valid verbal, performance, or full scale IQ of 60 through 70, " and 3) "a physical or other mental impairment imposing an additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (2013). The ALJ found and the parties do not dispute that Scott's IQ of 63 falls within the prescribed range and that Scott has a qualifying physical ...

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