               United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2514
                         ___________________________

                                   Dwain Bagwell

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                Commissioner, Social Security Administration

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                   Appeal from United States District Court
           for the Eastern District of Arkansas - Jonesboro Division
                                 ____________

                            Submitted: January 17, 2019
                             Filed: February 28, 2019
                                  ____________

Before LOKEN, GRASZ, and STRAS, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.
      Dwain Bagwell appeals the district court’s1 judgment that the Social Security
Administration (“SSA”) Commissioner’s decision to deny him disability benefits was
supported by substantial evidence. We affirm.

                                   I. Background

       In December 2014, Dwain Bagwell applied for disability benefits from the SSA,
alleging mild intellectual disability, low education, slow learning abilities, and
memory problems. After the SSA denied his claim initially and on reconsideration,
he requested a hearing before an administrative law judge (“ALJ”). The ALJ found
Bagwell had three severe impairments: arthropathies, obesity, and depressive disorder.
The ALJ also found that neither those impairments individually nor the combination
of them were severe enough to satisfy the criteria for disability benefits under SSA
regulations. Then, the ALJ concluded Bagwell’s residual functional capacity allowed
him to perform light, unskilled work with some further restrictions. Because
testimony from a vocational expert indicated such jobs are available in the United
States economy, the ALJ found Bagwell was not under a disability as defined by the
Social Security Act.

       The ALJ’s decision was based, in relevant part, on reviewing reports from
several witnesses. Two of these key witnesses were mental health experts. Dr. Vickie
Caspall performed a psychological examination of Bagwell at the request of the SSA.
She opined that he was moderately depressed but was not functioning in the
intellectual disability range. At Bagwell’s request, he was also evaluated by Dr.




      1
        The Honorable Beth Deere, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).

                                         -2-
Herman Clements of Hometown Behavioral Health. Dr. Clements diagnosed Bagwell
with bipolar disorder and opined that Bagwell had marked mental impairments.2

        The Social Security Appeals Council denied Bagwell’s petition for review,
making the ALJ’s decision the Commissioner’s final administrative decision. Bagwell
filed a complaint in the Eastern District of Arkansas seeking review. The district court
affirmed the Commissioner’s decision, and Bagwell timely appealed.

                               II. Standard of Review

        We review de novo the district court’s decision affirming the denial of social
security benefits and will affirm “if the Commissioner’s decision is supported
by . . . substantial evidence on the record as a whole.” Ash v. Colvin, 812 F.3d 686,
689 (8th Cir. 2016) (quoting McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010)).
“Substantial evidence is less than a preponderance, but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.” Id. (quoting
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). If the record supports two
inconsistent conclusions, this court must affirm the Commissioner’s choice among
those two conclusions. Id. at 689–90.

                                     III. Analysis

       The ALJ’s assessment that Bagwell is only moderately intellectually limited,
rather than intellectually disabled, is supported by substantial evidence in the record.3

      2
        In addition to reviewing those witnesses’ opinions, the ALJ also saw Dr. Kay
Cogbill’s review of Bagwell’s previous psychological assessments. Her report was
part of the SSA’s two reviews and denials of Bagwell’s petition prior to the ALJ
hearing. Dr. Cogbill’s review included records from Bagwell’s previous application
for disability benefits, but those prior records were not in the ALJ’s record in this
case.
      3
       While Bagwell argues that the ALJ failed to address opinions from Dr. Hope
Gilchrist and Dr. George DeRoeck, this argument misses the mark because those

                                          -3-
Dr. Caspall specifically opined that Bagwell’s only mental limitation was a mild form
of major depressive disorder. She did not find that Bagwell was intellectually
disabled. While Dr. Clements found significant mental disabilities, the ALJ rejected
his opinion because he appeared to take Bagwell’s complaints at face value without
testing for malingering or otherwise complying with SSA standards for ascertaining
disability. The ALJ also noted that Bagwell’s mental conditions appeared controllable
with medicine, which weighs against a finding of disability.4 Under the applicable
standard of review, we cannot see how crediting Dr. Caspall’s opinion over Dr.
Clements’s opinion would make the ALJ’s decision unsupported by substantial
evidence.5 Even if Bagwell’s arguments against crediting Dr. Caspall’s opinion have
merit, failures in Dr. Caspall’s opinion do not mean that the ALJ was required to agree
with Dr. Clements’s opinion. At best, Bagwell has shown that the ALJ picked
between two potentially flawed expert opinions in a limited record, which does not
satisfy his burden of proof here. Thus, we agree with the district court that the ALJ’s
judgment was supported by substantial evidence.

      Because the ALJ’s decision was supported by substantial evidence, Bagwell’s
other argument about the ALJ’s failure to consider whether he met the criteria for




opinions were in the prior application records reviewed by Dr. Cogbill, not in the
ALJ’s record in this case.
      4
       The ALJ admitted Bagwell had expressed financial difficulties in obtaining the
medicine, but the ALJ noted that clinics existed where Bagwell could obtain the
necessary medication for free. The ALJ also noted that the medicine prescribed by Dr.
Clements was only a 30-day supply with no refills, implying that it was unclear how
permanently Bagwell needed such medicine.
      5
       The ALJ discredited testimony from Bagwell’s brother because he appeared
to uncritically accept Bagwell’s claims. The ALJ also discredited testimony from Dr.
Rodger Troxel because Dr. Troxel was not qualified to testify about mental health.

                                         -4-
intellectual disability in Listing 12.05C has no merit.6 In order to satisfy Listing
12.05C, as it existed at the time of his application, Bagwell needed to show
(1) a “significantly subaverage general intellectual functioning with deficits in
adaptive functioning 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 § 12.05 (2016). Even if Bagwell had
a valid IQ score in the record (which the parties dispute), he cannot meet the other
criteria for deficits in adaptive functioning or significant work related limitations in
light of the ALJ’s findings about his intellectual capacity. The ALJ could not have
erred by failing to address listings that were unsupported by the record. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011) (“There is no error when an ALJ fails to
explain why an impairment does not equal one of the listed impairments as long as the
overall conclusion is supported by the record.”).

                                   IV. Conclusion

      We affirm the judgment of the district court that the Commissioner’s decision
to deny disability benefits was supported by substantial evidence.
                       ______________________________




      6
        Listing 12.05 is the name for the intellectual disability category in the list of
impairments in SSA’s regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05
(2016). Subpart C describes a particular set of criteria for demonstrating intellectual
disability. See id.

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