                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2257
                                    ___________

Johnnie D. Freeman,                      *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Kenneth S. Apfel,                        *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: December 15, 1999

                                   Filed: March 30, 2000
                                    ___________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                            ___________

JOHN R. GIBSON, Circuit Judge.

      Johnnie D. Freeman appeals from the summary judgment the district court1
entered against him, affirming the decision of the Commissioner of Social Security to
deny him supplemental security income benefits. Freeman contends that the
Commissioner's determination that he was not disabled during the relevant period is not
supported by substantial evidence and that the ALJ hearing his case failed to develop
the record by having Freeman's IQ tested. We affirm the judgment of the district court.

      1
      The Honorable Robert G. Renner, United States District Judge for the District
of Minnesota.
       Freeman is currently receiving SSI disability benefits based on a determination
of disability for low intellectual functioning, with an onset date of December 6, 1995.
This appeal concerns an earlier application for SSI benefits for the period from August
16, 1993 to December 5, 1995.

        Freeman was born on September 11, 1959 and began using heroin at the age of
17. He attended school through the tenth grade, but has spent his adult life in the
pursuit of heroin, with periodic time-outs while in jail or rehabilitation programs. He
testified that at one time he used $500 worth of heroin a day. He financed his habit by
selling drugs and stealing. Freeman also used alcohol.

       Freeman applied for SSI benefits on August 16, 1993, at the age of 33, claiming
disability based on drug and alcohol addiction. The ALJ initially found that because
Freeman was actively involved in drug dealing, he was engaged in "substantial gainful
activity" and therefore was not disabled. The Commissioner denied Freeman benefits,
but the district court reversed the decision because the ALJ failed to consider whether
Freeman's drug dealing met the definition of "substantial gainful activity" used by the
Commissioner.

       By the time this case was remanded in 1997, Freeman's condition had
deteriorated dramatically, and indeed he has been adjudged disabled as of December
6, 1995. The evidence at the remand hearing included medical reports written during
the period at issue (August 16, 1993 through December 5, 1995) and later, during the
period of conceded disability.

       Also intervening between the initial hearing and the remand hearing was a
significant change in the law. An amendment to the Social Security Act, passed March
29, 1996, precludes an award of SSI benefits if alcoholism or drug addiction would be
a contributing factor material to the determination of disability. See Pub. L. No. 104-
121, § 105(b), 110 Stat. 847, 853 (1996). The Commissioner applies the legislation by

                                          -2-
determining whether the claimant would still be disabled if he stopped using alcohol
and drugs. See 20 C.F.R. § 416.935 (1999).

       On remand, the ALJ appointed a medical advisor, Paul Reitman, Ph. D., to opine
on Freeman's condition during the 1993-1995 time period, and specifically, to opine on
what Freeman's condition would have been during that period if he had stopped using
drugs and alcohol. Reitman concluded that Freeman had opiate and alcohol
dependence that met the Commissioner's disability listing 12.09. See 20 C.F.R. pt.
404, subpt. P, app.1, § 12.09. While substance addiction disorder was Reitman's
principal diagnosis, he said that the record also supported a finding that Freeman
suffered from depressive syndrome, with probable drug-induced psychotic symptoms.
Looking at the depressive syndrome without the drug addiction, Reitman stated that
Freeman would not meet the listing standard for disability. Reitman specifically stated
that the record did not contain any evidence of personality disorder during the relevant
period. He also said that there was no evidence of mental retardation, although "clearly
an individual who has a major addiction is going to show intellectual deficiency."

       The ALJ applied the five-step evaluation process prescribed in the regulations,
see 20 C.F.R. § 416.920 (1999), taking into account medical records from examinations
during the relevant time period, evaluations after that period, and the testimony of
Reitman and a vocational expert at the hearing. At the first step, the ALJ concluded
that Freeman was engaged in some work during the period, but that this work was not
extensive enough to amount to "substantial gainful activity." At the second step, the
ALJ determined that Freeman suffered from severe impairments, specifically depressive
syndrome with probable drug-induced psychotic symptoms, low intellectual
functioning, and a substance addiction disorder. The ALJ next found that Freeman's
substance addiction disorder met the requirements of 12.09, meeting the third step.
Because Freeman had a substance addiction, the ALJ had to determine whether
Freeman would still be disabled if he stopped using alcohol or drugs. He determined
that, absent the substance abuse, Freeman's remaining impairments would not meet the

                                          -3-
listings for disability. See 20 C.F.R. pt. 404, subpt. P, app. 1. Therefore, the ALJ
proceeded to the last two steps and found that although Freeman could not perform his
past relevant work, he had the residual abilities to perform certain unskilled work, and
that the kinds of jobs Freeman could do existed in the national and regional economy.
Accordingly, the ALJ denied Freeman's application for benefits. The Appeals Council
denied review, making the ALJ's determination the final decision of the Commissioner.

      Freeman appealed to the district court, which referred the matter to a magistrate
judge.2 The magistrate judge's review was limited to ascertaining whether there was
substantial evidence on the record as a whole to support the Commissioner's decision.
The magistrate judge reviewed the medical records before and after the relevant period
and found that Freeman had suffered a marked deterioration in mental health just after
the end of the period covered by this application for benefits (August 16, 1993 through
December 5, 1995). In fact, there was no evidence of mental impairments other than
substance abuse until February 1996. The magistrate judge therefore recommended
affirmance of the Commissioner's decision, and the district court accepted that
recommendation.

        On appeal, Freeman argues that there was not substantial evidence to support
a finding that he was not disabled. In particular, he contends that there was no reason
to believe that he would have regained the ability to function if he stopped using drugs.
He also contends that the evidence established that he was mentally retarded. Finally,
he contends that the ALJ failed to develop the record because he did not obtain a test
of Freeman's IQ.

      Judicial review of the Commissioner's decision is limited to ascertaining whether
substantial evidence in the record as a whole supports the Commissioner's findings.


      2
      The Honorable Arthur J. Boylan, United States Magistrate Judge for the District
of Minnesota.

                                          -4-
See Gray v. Apfel, 192 F.3d 799, 802 (8th Cir. 1999). The court is required to review
the administrative record as a whole, considering evidence which detracts from the
Commissioner's decision, as well as that which supports it. See id. Substantial
evidence is relevant evidence that a reasonable person would consider adequate to
support a conclusion. See id.

                                          I.

       Freeman contends that the ALJ's determination that he would not have been
disabled if he stopped using heroin and alcohol is unsupported by the record. The
Commissioner responds that there is no evidence of any impairment other than
substance abuse that would have met the listings during the relevant period, and that
there is evidence Freeman retained the capacity to do some work.

       From 1993 to 1995, Freeman was diagnosed with opiate dependence and
alcoholism. On September 28, 1993, Freeman was admitted to a drug treatment
program. The admitting physician, Douglas Knight, M.D., reported that Freeman
demonstrated good attention, normal behavior, and a cooperative attitude, although he
had poor concentration. At that time Freeman denied ever having auditory or visual
hallucinations. Knight recommended a six-week withdrawal program, but Freeman left
the program after less than three weeks. A psychiatric review form completed by Dan
Larson, M.D., on March 28, 1994 stated that Freeman "stole regularly to support his
habit. This would have involved complex skills." Larson indicated that Freeman had
a personality disorder as well as substance addiction, but he found no psychosis. He
concluded that Freeman was not sufficiently impaired to meet the listings and that he
had the capacity to do some kinds of work.

       During 1994 and 1995, Freeman worked briefly at two jobs, including a semi-
skilled job as an oil changer. This job ended when he was fired for being late to work.
In 1994-1995 Freeman had a number of hospital emergency room admissions for minor

                                          -5-
physical ailments, such as a sprained ankle. The various treating physicians make no
note of psychological abnormalities (other than substance abuse), but rather describe
Freeman in such terms as: "[T]hought processes are clear"; "He lifts 300 pounds on a
near daily basis in bench press"; "[P]atient demonstrated good understanding of
[follow-up instructions]."

        On November 27, 1995, Freeman sought treatment for his heroin addiction,
stating that he had "hit bottom." He reported that he had experienced various physical
symptoms and visual hallucinations for as much as three days when in withdrawal. At
this time Freeman reported that when he was not using heroin, he liked to socialize with
his sober friends, play football, skate, swim, and work out. The examining
psychologist recommended "complete abstinence from all mood altering chemicals."

       Freeman's medical records show a change in 1996. On February 27, 1996, he
was admitted to a hospital emergency room, complaining of hearing voices. He denied
that he had ever had auditory hallucinations before. At this point, he was diagnosed
with depression, as well as polysubstance abuse. In March, Ronald Kyllonen, M.D.,
examined Freeman and noted: "He presents as an agitated man who is hearing voices,
is having anxiety symptoms, who rocks constantly, is showing a disorganized function.
. . . At this point he is not at all interviewable and has difficulty concentrating and
following through." At this time, Kyllonen thought Freeman might have an underlying
psychotic process, a panic disorder, or depression. Still, in April 1996, Kyllonen
wrote: "The [primary] issue is the C/D [chemical dependency] (not a Psychiatric
problem.) Learning not to need to use is what needs to happen. Despair & depression
seem to be [secondary]."

      Not until May 1996, when consulting psychologist Robert Lopno examined
Freeman, does the record show a provisional diagnosis of paranoid type schizophrenia
and opiod-induced psychotic disorder with delusions. The notes from that examination
show a radically different patient than the one reflected in notes from the 1993-1995

                                          -6-
time period. Whereas in 1993 his behavior was within normal limits and he was well-
groomed, in the interview with Lopno, he was "not oriented to person, place, time or
reason," wore a funny hat and a several-day old beard, couldn't walk without
assistance, and cried during the examination.

       Freeman relies on the observations and diagnoses of Kyllonen and Lopno, which
he contends show that abstinence from drug use would not have improved his
condition. The examination reports of Kyllonen and Lopno do indeed show a terribly
debilitated patient with psychological impairments either in addition to drug addiction
or at least inseparable from it. There is no suggestion by Kyllonen or Lopno that
Freeman would ever improve. However, these examinations are not from the relevant
time period; they differ vitally from reports about Freeman during the relevant time, and
they date from a period during which he was undisputedly disabled. In contrast, during
the relevant period, there was no diagnosis of psychosis, and there were indications that
Freeman could socialize, engage in sports, work, and take care of himself when he was
not abusing drugs. Even though Kyllonen was a treating physician, because his
evidence did not pertain to Freeman's condition during the relevant period and was
inconsistent with other substantial evidence that did pertain to the relevant period, the
ALJ was under no obligation to give Kyllonen's opinion controlling weight. Cf. Prosch
v. Apfel, 201 F.3d 1010 (8th Cir. 2000) (applying 20 C.F.R. § 404.1527(d)(2)). There
is substantial evidence on the record as a whole to sustain the Commissioner's finding
as to the 1993-1995 time period.

                                           II.

       Freeman argues that the ALJ failed to develop the record by failing to have
Freeman's IQ tested, and that the record showed Freeman met the listings for mental
retardation.




                                          -7-
       The ALJ has the duty to develop the record fully and fairly, even where, as here,
the claimant is represented by counsel. See Dozier v. Heckler, 754 F.2d 274, 276 (8th
Cir. 1985). "[I]t is reversible error for an ALJ not to order a consultative examination
when such an evaluation is necessary for him to make an informed decision." Id.
(quoting Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984)). However, in this
case, by the time of the hearing Freeman was in such a state that his IQ could not be
tested, as Freeman concedes in his brief. There was discussion of this issue on the
record at the hearing, when Dr. Reitman asked why there was no IQ test in the record.
Freeman's attorney replied, "The doctor [Lopno] was going to give him a [WAIS IQ
test], but . . . [i]t seems like it was . . . very difficult. . . ." Given the extreme
debilitation Freeman showed in 1996, we cannot fault the ALJ for failing to order an
IQ test that would have been an exercise in futility.

        Moreover, the results of a test at the time of the hearing in 1997 would have been
of limited relevance to the inquiry of whether Freeman was mentally retarded during
1993-1995. Listing 12.05 states: "Mental retardation refers to a significantly
subaverage general intellectual functioning with deficits in adaptive behavior initially
manifested during the developmental period (before age 22)." 20 C.F.R. pt. 404, subpt.
P, app. 1, § 12.05. The only contemporaneous evidence in the record pertaining to
Freeman's intellectual functioning during the period covered by this application for
benefits refutes the idea that he had abnormally low intelligence before the age of 22.
Freeman finished the tenth grade, participated in GED classes, and held a semi-skilled
job as an oil changer. Examinations of Freeman during the period covered by this
application for benefits contain no hint that Freeman was retarded. In September 1993,
Knight characterized his intelligence as "[s]omewhat less than average." The
psychiatric review form filled out by Larson in 1993 stated that there was no evidence
of mental retardation. Reitman testified: "[C]learly an individual who has a major
addiction is going to show intellectual deficiency. But there is nothing in the record .
. . that would document or substantiate retardation." Again, reports of examinations
after the relevant period, when Freeman had clearly deteriorated, do not necessarily

                                           -8-
prove what his condition was during the 1993-1995 time frame, see Box v. Shalala, 52
F.3d 168, 172 (8th Cir. 1995) (evidence of IQ test showing deterioration after period
in issue not relevant), and they certainly do not establish that his low intellectual
functioning began before the age of 22. Cf. Clark v. Apfel, 141 F.3d 1253, 1256 (8th
Cir. 1998) (Commissioner's finding that claimant did not meet listings for mental
retardation supported by substantial evidence where first suggestion in medical records
of intellectual shortcomings came at age 29); Williams v. Sullivan, 970 F.2d 1178,
1184-86 (3d Cir. 1992) (even where record contained IQ test result of 66, claimant's
work history refuted assertion that he had abnormally low intelligence before age 22).
There is substantial evidence on the record as a whole to support the Commissioner's
conclusion that Freeman did not meet the listing for mental retardation.

      We affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -9-
