                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2003

Markle v. Comm Social Security
Precedential or Non-Precedential: Precedential

Docket 02-3128




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                                  PRECEDENTIAL

                                           Filed March 26, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 02-3128


                      WILLIAM R. MARKLE
                                             Appellant
                                 v.
                JOANNE A. BARNHART,
           COMMISSIONER OF SOCIAL SECURITY

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
District Court Judge: The Honorable Donetta W. Ambrose
                 (D.C. Civ. No. 01-1693)

                   Argued January 28, 2003
  Before: SLOVITER and RENDELL, Circuit Judges, and
        DEBEVOISE,* Senior District Court Judge

               (Opinion Filed: March 26, 2003)
                         Thomas D. Sutton (Argued)
                         Leventhal & Sutton
                         One Oxford Valley
                          Suite 317
                         Langhorne, PA 19047
                           Attorney for Appellant

* Dickinson R. Debevoise, Senior United States District Judge for the
District of New Jersey, sitting by designation.
                             2


                      James A. Winn
                      Regional Chief Counsel, Region III
                      Rafael Melendez (Argued)
                      Assistant Regional Counsel
                      Office of the General Counsel
                      Social Security Administration
                      P.O. Box 41777
                      Philadelphia, PA 19101
                      Mary Beth Buchanan
                      United States Attorney
                      Paul E. Skirtich
                      Assistant U.S. Attorney
                      Western District of Pennsylvania
                      633 U.S. Post Office & Courthouse
                      Pittsburgh, PA 15219
                        Attorneys for Appellee


                OPINION OF THE COURT

DEBEVOISE, Senior District Court Judge:
   Appellant, William R. Markle, appeals from an order of
the District Court affirming the decision of the
Administrative Law Judge (“ALJ”) holding that Markle is not
disabled and entitled to Supplemental Security Income
(“SSI”) and granting the Commissioner’s motion for
summary judgment. We conclude that the Administrative
Law Judge (ALJ) erred when he failed to find that Markle
had a full scale IQ score of 70. We will reverse and remand,
directing the ALJ to complete Step 3 of the evaluation
process by developing the record and determining whether
Markle’s mental retardation had an onset date before age
22, in which event he would be entitled to the benefits he
seeks.

                     I.   Background
  Markle is a 48 year old man. He attended special
education classes in school, completing the ninth grade but
dropping out after two months in tenth grade. He obtained
a GED in the 1970s, can read, write, add, subtract, but has
                              3


difficulty with multiplication and division. In the remote
past he performed some work painting and wallpapering
houses and cutting grass, but performed no work during
the fifteen years prior to his SSI application. At the time of
the     administrative   hearing    he   lived   alone    and
independently. He goes out when necessary, shops, walks
around and visits friends and relatives. He takes care of his
apartment and handles all his bills and uses an ATM to
access his bank account.
   On February 14, 2001, after the determination of the
Pennsylvania Bureau of Disability Determination but before
the ALJ hearing, Markle underwent a consultative
psychological evaluation by James E. Williams, Ph.D., a
licensed psychologist. Dr. Williams noted that there was
nothing unusual about Markle’s gait, posture, manner or
hygiene and that his general appearance was appropriate.
Markle appeared relaxed and personable throughout the
evaluative process and exhibited no evidence indicative of
anxiety or psychopathology. Of particular significance in
the present case is the fact that Markle’s IQ test revealed a
verbal IQ score of 73, a performance IQ score of 72 and a
full scale IQ score of 70.
  With respect to Markle’s ability to make occupational
adjustments, Dr. Williams found that despite being
cognitively challenged, he had a good ability to use
judgment, function independently, follow work rules, relate
to co-workers, deal with the public, and interact with
supervisors, and had a fair ability to deal with work
stresses and maintain attention and concentration. Markle
had a fair ability to understand, remember and carry out
complex and detailed job instructions. Further, Dr.
Williams found that Markle had a very good to unlimited
ability to make personal-social adjustments such as
demonstrating reliability, maintaining personal appearance,
relating predictably in social situations, and behaving in an
emotionally stable manner.
  Markle protectively filed an application for SSI disability
benefits.   The   Pennsylvania    Bureau      of   Disability
Determination denied his claim initially. Following a timely
request, a hearing was held before an ALJ, who denied the
claim. The Appeals Council denied Markle’s request for
                              4


review of the ALJ’s decision. Markle filed suit in the District
Court which granted the Commissioner’s motion for
summary judgment. This appeal followed.

    II.   The ALJ and District Court Determinations
   The ALJ received medical evidence, including Dr.
Williams’s report, heard Markle’s testimony and received
the testimony of a vocational expert. Proceeding through
the five-step evaluation process the ALJ found that Markle
had not worked since filing his application and
consequently had not been engaging in substantial gainful
activity (Step 1). He stated that “[c]linical and objective
findings establish chronic obstructive pulmonary disease,
hypertension, obesity, gout and diminished intelligence.
These impairments are not slight and result in more than
a minimal effect on the claimant’s residual functional
capacity. Consequently, the Administrative Law Judge finds
claimant’s impairments severe as set forth in Social
Security Ruling 96-3p.” (App. at p. 13) (Step 2)
   Step 3 of the sequential evaluation process required that
the ALJ determine whether any of Markle’s impairments,
alone or in combination, met or equaled a listed
impairment as set forth in Appendix 1, Subpart P,
Regulations No. 4. Of importance in the present appeal is
the ALJ’s determination that Markle did not satisfy the
impairments listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.05, in particular the impairment listed at § 12.05C.
The pertinent provision reads:
    Mental Retardation refers to significantly subaverage
    general intellectual functioning with deficits in adaptive
    functioning     initially   manifested      during    the
    developmental period, i.e., the evidence demonstrates
    or supports onset of the impairment before age 22. The
    required level of severity for this disorder is met when
    the requirements in A,B,C, or D are satisfied.

                          *    *   *
    C. A valid verbal, performance, or full scale IQ of 60
    through 70 and a physical or other mental impairment
                              5


    imposing an additional and significant work-related
    limitation of function.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
   The ALJ noted Markle’s IQ scores, which met the IQ
criteria of § 12.05C, but found that “the results of such
testing procedures cannot be taken at face value in view of
the fact that they are inconsistent with the claimant’s
ability to independently perform self-care needs, perform
various activities of daily living, and so forth. Of further
significance is the fact that despite a limited special
education, the claimant obtained a general equivalency
diploma.” (App. at p. 14). The ALJ referred to the various
positive observations contained in Dr. Williams’s report and
to Markle’s own description of the manner in which he was
able to perform successfully the daily functions of his life.
He found “that the claimant’s impairments do not meet or
equal the severity of Listings 1.00, 3.00, 12.05 or any other
listing. . .” (Id.). He further stated that “[i]n reaching this
conclusion, the Administrative Law Judge has considered
the opinion of the State agency medical consultant who
evaluated this issue, and reached the same conclusion.”
(Id.)
   Moving to Step 4 the ALJ reviewed in great detail
Markle’s testimony and the extensive medical evidence in
the record reflecting Markle’s various impairments. He
stated that “[b]ased on the clinical and objective findings of
treating and consulting physicians, and the claimant’s
range of activities, the Administrative Law Judge believes
that the claimant has exaggerated his complaints of
debilitating pain, shortness of breath, and limitations. The
totality of the evidence, especially the objective and clinical
findings of treating and consulting physicians, rebuts the
claimant’s contention that he is totally disabled from all
forms of gainful employment.” (App. at p. 17). The ALJ
found that Markle has the residual functional capacity to
perform a wide range of simple, routine and repetitive light
work activity not involving exposure to temperature
extremes, and excessive wetness, humidity, dust, fumes,
gases and stress. He noted that light work entails lifting no
more than twenty pounds at a time with frequent lifting
                             6


and carrying objects weighing up to ten pounds, standing
and walking.
   The ALJ observed that Markle had no past relevant work
experience and proceeded to deal with the Commissioner’s
burden at step 5 to show that there are jobs existing in
significant numbers in the national economy which Markle
can perform, consistent with his medically determinable
impairments, functional limitations, age and education. In
response to the ALJ’s hypothetical question the vocational
expert testified that a person having the hypothesized
conditions could perform such light jobs as an inserter,
bagger, weigher and guard, and that a significant number
of these jobs existed in the region of Markle’s residence, in
the State of Pennsylvania and in the national economy. The
ALJ made the following findings relevant to his step 5
evaluation:
    Based on an exertional capacity for light work, and the
    claimant’s age, education, and work experience,
    Section 416.969 of Regulations No. 16, and Vocational
    Rule 202.20, Table No. 2, Appendix 2, Subpart P,
    Regulations No. 4 would direct a conclusion of “not
    disabled.”    Although    the    claimant’s   additional
    nonexertional limitations do not allow him to perform
    the full range of light work, using the above cited rule
    as a framework for decision making, there are a
    significant number of jobs in the national economy
    which he could perform. Examples of such jobs are:
    inserter, bagger, weigher, guard, cutter/trimmer,
    assembler, addresser, and packager. These jobs exist
    in significant numbers in the immediate area of the
    claimant’s residence as well as in the national
    economy.
    The claimant was not under a “disability,” as defined in
    the Social Security Act, at any time through the date of
    this decision (20 CFR 416.920(f)).
(App. at p. 20)
  Had the ALJ found that Markle’s impairments met the
severity listing under § 12.05C, the Step 4 and Step 5
inquiry would have been unnecessary and irrelevant.
                              7


   In his appeal to the District Court Markle challenged the
ALJ’s conclusions that he does not meet a listed
impairment, in particular the impairment listed at
§ 12.05C, and that Markle is capable of performing light
work.
   Addressing the listed impairment issue the District Court
noted the verbal IQ of 73, the performance IQ of 72 and the
full scale IQ of 70, holding, correctly, that “where verbal,
performance, and full scale IQs are provided, the Secretary
must consider the lowest of these scores in conjunction
with listing 12.05”, and that “Markle would ordinarily
satisfy the IQ guidelines for both § 12.05C and § 12.05D,
given that he has a full scale IQ of 70” (Joint App. at p.10).
Citing Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998)
and Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986),
the District Court held, again correctly, that the
Commissioner is not required to accept a claimant’s IQ
scores and may reject scores that are inconsistent with the
record. The District Court concluded that the ALJ’s
rejection of the IQ scores was supported by substantial
evidence, including Markle’s ability to pay his own bills,
add and subtract, use an ATM machine and to take care of
all his own personal needs; Markle’s ability to identify and
administer his medication; his previous jobs; his obtaining
a GED; and the positive evaluations of Dr. Williams, the
psychologist. Finding that substantial evidence supported
the ALJ’s conclusion that Markle’s IQ scores do not
accurately reflect his mental ability and that he does not
suffer from mental retardation as that term is used in
§ 12.05, the District Court did not address Markle’s
arguments that he also satisfied the other criteria of
§ 12.05C.
  Turning to Markle’s challenge to the ALJ’s finding that he
can perform light duty work, the District Court addressed
Markle’s contention that his treating physician’s, Dr.
Jabbour’s, conclusion that Markle could sit for less than
six hours in an eight-hour work day and could only
occasionally lift and/or carry ten pounds, was inconsistent
with the definition of light work. The District Court found
that substantial evidence supported the ALJ’s conclusion
that Dr. Jabbour’s limitations were not supported by
                             8


objective medical evidence, citing Dr. Jabbour’s own
detailed medical findings, reports of other physical
examinations and the residual functional capacity
assessment completed by the Pennsylvania agency
physician. The District Court rejected Markle’s argument
that the hypothetical question that the ALJ posed to the
vocational expert did not incorporate his mental
impairment.
  In a footnote (Joint App. at p.12) the District Court
rejected Markle’s argument that the ALJ erred in not
completing a psychiatric review technique form, stating:
    Markle makes a brief argument that the ALJ was
    required to complete a psychiatric review technique
    form and that he erred in not completing one. Because
    such a form was completed at the initial stages of
    Markle’s claim, the ALJ did not need to complete
    another one. Rather, he only had to incorporate
    pertinent findings and conclusions based on the
    previously completed form. See 20 C.F.R. Section
    416.920a(e). He did so.
   Markle raises two issues in his challenge to the District
Court’s decision affirming the decision of the ALJ, denying
Markle’s motion for summary judgment and granting the
Commissioner’s motion for summary judgment. First, he
asserts that the District Court erred in failing to find that
the ALJ committed an error of law by finding that Markle’s
mental retardation did not meet the requirements of
§ 12.05C of the listed impairments, and second, he asserts
the District Court erred in failing to find that the ALJ did
not incorporate in his decision the Psychiatric Review
Technique findings required by the regulations.

       III.   Jurisdiction and Standard of Review
  The District Court had jurisdiction under the Social
Security Act, 42 U.S.C. §§ 405(g), 1383(c). We have
appellate jurisdiction under 42 U.S.C. § 405(g) and 28
U.S.C. § 1291.
  The standard of review both in the District Court and in
this Court with respect to findings of fact by the
                              9


Commissioner is whether there is substantial evidence to
support such findings. 42 U.S.C. § 405(g). With respect to
the application of legal precepts, the standard of review in
the District Court and in this Court is plenary.

                      IV.   Discussion
  To meet the requirements of § 12.05C a claimant must i)
have a valid verbal, performance or full scale IQ of 60
through 70, ii) have a physical or other mental impairment
imposing additional and significant work-related limitations
of function, and iii) show that the mental retardation was
initially manifested during the developmental period (before
age 22). We conclude that the ALJ’s ruling that Markle had
a full scale IQ of greater than 70 was not supported by
substantial evidence.
   The District Court observed correctly, that an ALJ may
reject scores that are inconsistent with the record. However,
the record in the present case does not provide a basis for
the rejection. Obviously Dr. Williams concluded that the
scores he reported were valid, as he did not qualify them or
find that they were inconsistent with the various positive
aspects he noted in Markle’s appearance, demeanor and
conduct. The ALJ’s reliance on the opinion of the State
medical agency consultant was misplaced, because the
consultant did not have available to him Dr. Williams’s
report and Markle’s IQ scores. There was no expert opinion
of a psychologist or medical person to contradict Dr.
Williams’s IQ findings. “An ALJ cannot reject IQ scores
based on personal observations of the claimant and
speculative inferences drawn from the record.” Morales v.
Apfel, 225 F.3d 310, 318 (3d Cir. 2000).
   The various activities in which Markle is able to engage
are not inconsistent with qualifying mental retardation. In
a similar case the Sixth Circuit Court of Appeals rejected
the Commissioner’s argument that a claimant’s full scale IQ
of 68 was inconsistent with, among other things, his
driver’s license and work history as a truck driver, limited
literacy and sixth grade education, and ability to make
change, do laundry and clean his room. Brown v. Sec’y of
HHS, 948 F. 2d 268, 270 (6th Cir. 1991); see also, Hodges
v. Barnhart, 276 F.3d 1265 (11th Cir. 2001).
                             10


  The cases upon which the District Court relied are
readily distinguishable from the circumstances of the
present case. In Clark v. Apfel, supra, the Eighth Circuit
Court of Appeals held that the ALJ properly rejected the
validity of the claimant’s performance IQ of 66 and full
scale IQ of 67 where she had worked in the private sector,
had a driver’s license and was the primary caretaker of her
young daughter and had completed ninth grade without
special education services. In Popp v. Heckler, supra, the
Eleventh Circuit Court of Appeals held that the ALJ did not
have to accept scores in the listing range for a claimant
who had a two-year college degree, was enrolled in a third
year of college, and had a history of several skilled jobs
including teaching algebra at a private school. By contrast,
here, the record evidence did not necessarily undermine the
validity of Markle’s reported IQ scores.
   The ALJ found that “[t]he medical evidence establishes
that the claimant has severe chronic obstructive pulmonary
disease, hypertension, obesity, gout, and diminished
intelligence,” and that these severe impairments restrict
him to a limited range of light work. These findings
establish the second criterion for entitlement under
§ 12.05C, a physical or other mental impairment imposing
additional and significant work-related limitations of
function.
   Several courts of appeals have held that a finding of a
severe impairment establishes the second prong of
§ 12.05C, e.g., Luckey v. U.S. Dept. of HHS, 890 F.2d 666,
669 (4th Cir. 1989); Fanning v. Bowen, 827 F.2d 631, 633
(9th Cir. 1987). In Williams v. Sullivan, 970 F.2d 1178,
1186-89 (3rd Cir. 1992), we alluded to the requirement of
“a physical or other mental impairment imposing additional
and significant work-related limitation of functions”, but it
was unnecessary to frame a definition because we had
decided that the claimant’s evidence was insufficient to
show that he was mentally retarded prior to age 22.
However, more recently the Commissioner in new
regulations on the evaluation of mental disorders addressed
the second prong of § 12.05C, stating that “[w]e always
have intended the phrase to mean that the other
impairment is a “severe” impairment as defined in
                                   11


§§ 404.1520(c) and 416.920(c).” Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury,
65 Fed. Reg. 50746, 50772 (August 21, 2000). Even absent
the Commissioner’s clarifying regulation, the severity of
Markle’s other impairments (obstructive pulmonary disease,
hypertension, obesity and gout) which limit him to some
forms of light work constitute impairments “imposing
additional and significant work-related limitations of
function.”
  Because the ALJ did not find that Markle had a
sufficiently low IQ to qualify for a § 12.05C listed
impairment, he did not inquire into the third requirement
for such an impairment, namely, whether Markle’s mental
retardation    was   initially manifested    during   his
developmental period.
   In recent years several courts of appeals have applied a
rebuttable presumption that a current mental impairment
existed before age 22, and Markle asks us to apply that
standard. See e.g., Hodges v. Barnhart, supra. In Williams
v. Sullivan, 970 F.2d 1178 (3d Cir. 1992) our court did not
apply a presumption, but held that the claimant had a
burden of establishing that his mental retardation
commenced during the developmental period, and, in that
case, had failed to meet that burden. Although a different
result might be suggested by the subsequently enacted
August 21, 2000 Revised Medical Criteria (quoted below)
which were in effect when cases applying the presumption
were decided, we are not at liberty to hold that such a
presumption exists.1 We note, however, that Williams is
readily distinguishable from the present case because there
was evidence in Williams supporting a finding that the
retardation was of recent origin.2 Here, the evidence before

1. See Third Circuit IOP 9.1 (setting forth the policy that holdings in
published opinions are binding on subsequent panels, and that court en
banc consideration is required to overrule them).
2. A major factor suggesting that Williams’s mental retardation was of
more recent origin was his work history: “Williams’s mental retardation
is further put into doubt by the fact that Williams did, in fact, maintain
a job for most of his adult life.” Id. at 1185. The Court noted the ALJ’s
observation that “ ‘[i]t may well be that the claimant has suffered a
decrease in his intellectual ability recently due to his marked reduction
in activity.’ ” Id.
                              12


the ALJ is consistent with a finding that Markle’s mental
condition remained constant from childhood through the
present, the only change being that his physical condition
worsened as the years went by. There is no evidence of a
long work history — as there was in Williams — or of a
traumatic event that might have induced mental
retardation at a later stage of life.
   In its August 21, 2000 Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury
the Commissioner’s comments included the statement that
“We did not intend the second paragraph of proposed
listing 12.05 to require intelligence testing (or other
contemporary evidence prior to age 18 [now age 22].” The
comment proceeded to state:
      The proposed listing, as in the prior rules, stated that
      the significantly subaverage general intellectual
      functioning with deficits in adaptive behavior must
      have     been   initially  “manifested”    during    the
      developmental period. We have always interpreted this
      word to include the common clinical practice of
      inferring a diagnosis of mental retardation when the
      longitudinal   history    and  evidence     of   current
      functioning demonstrate that the impairment existed
      before the end of the developmental period.
      Nevertheless, we also can see that the rule was
      ambiguous. Therefore, we expand the phrase setting
      out the age limit to read: “i.e., the evidence
      demonstrates or supports onset of the impairment
      before age 22.”
Id.
  Given Williams, it is clear that the record should contain
some evidence that supports the finding that onset
preceded age 22. Here there is evidence that is at least
consistent with, and, depending on one’s interpretation,
could be said to support early onset. There is nothing in Dr.
Williams’s report to suggest that retardation originated after
age 21. In school Markle took special education courses
through ninth grade, dropping out after two months in the
tenth grade. He “struggled” to obtain a GED in the 1970s.
He has not held a job for at least fifteen years, and his work
                              13


before that was limited to some painting and wallpapering
of houses and cutting grass.
   However, the ALJ never addressed this issue, because the
injury concluded with a denial of benefits based on the first
prong. In such a situation, in light of the Supreme Court’s
recent ruling in INS v. Ventura, 123 S.Ct. 353, 355 (2002),
it is incumbent upon us to remand to the agency for it to
address the issue in the first instance. In Ventura, the
Court noted both the agency’s expertise and first-hand
knowledge of the record, as well as its ability to expand the
record if needed, as the bases for requiring remand. We
note that here the ALJ may well believe on remand that he
should develop the record further — as is his duty — and
inquire further into the nature of Markle’s special
education, or obtain an expert opinion as to the likely onset
of the retardation. Accordingly, we will remand the matter
to the ALJ so that he can provide his interpretation of the
record on this issue, develop the record further, and make
a finding whether Markle meets the third element of a
§ 12.05(C) listed impairment, namely, whether his
retardation commenced before age 22.
  Because the case will be remanded for further
proceedings it is unnecessary to address Markle’s
contention that the ALJ did not incorporate in his decision
the Psychiatric Review Technique findings required by the
regulations. Such deficiency, if it exists, can be remedied in
a future decision.

                      V.   Conclusion
  We have concluded that the ALJ’s finding that Markle did
not possess a full scale IQ of 70 was not supported by
substantial evidence. The case will be remanded for further
proceedings in accordance with the foregoing opinion.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
