                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 7 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    CHARLES DOVER,

                Plaintiff-Appellant,

    v.                                                    No. 99-5035
                                                    (D.C. No. 97-CV-295-EA)
    KENNETH S. APFEL, Commissioner,                       (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff Charles Dover appeals an order of the magistrate judge, sitting

for the district court by consent of the parties pursuant to 28 U.S.C. § 636(c),


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
affirming the decision of the Commissioner of Social Security that he is not

disabled within the meaning of the Social Security Act and denying his claim

for disability benefits. We have jurisdiction pursuant to 42 U.S.C. § 405(g)

and 28 U.S.C. § 1291, and we affirm.

       Dover claims disability due to mental retardation. He was born in 1957

and completed the tenth grade taking special education classes. His past relevant

work includes janitorial work and odd jobs such as yard cleaning and painting.

He last worked in 1992. He is not married and has no children.

       On February 29, 1996, following an administrative hearing, the

Administrative Law Judge (ALJ) first determined that Dover did have a severe

mental impairment of borderline intellectual ability, but that he did not meet

or equal the criteria in listing 12.05(C) for Mental Retardation and Autism.

See 20 C.F.R., pt. 404, subpt. P., App. 1, 12.05 C (Listing 12.05(C)). The ALJ

then determined, at step four of the five-step sequential process,   see Williams v.

Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), that Dover retained the residual

functional capacity (RFC) to perform his past relevant work as a janitor. Thus,

the ALJ found that Dover was not disabled and not entitled to disability benefits.

The Appeals Council affirmed the ALJ’s decision, making it the Commissioner’s

final decision. We review the Commissioner’s decision to ascertain whether it is

supported by substantial evidence in the record and whether the Commissioner


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applied the correct legal standards.    See Castellano v. Secretary of Health &

Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994).


                               I. The Listing Requirement

       On appeal, Dover first argues that the ALJ erred, at step three, in

determining that he did not meet the criteria in Listing 12.05(C) for Mental

Retardation and Autism. Listing 12.05(C) presumes a claimant to be disabled if

he meets a two-pronged test: (1) “[a] valid verbal, performance, or full scale IQ

of 60 through 70” and (2) “a physical or other mental impairment imposing

additional and significant work-related limitation of function.”    See 20 C.F.R.,

pt. 404, subpt. P., App. 1, 12.05(C). Where verbal, performance and full-scale IQ

scores are provided, as on the Wechsler Adult Intelligence Scale-Revised (WAIS)

test, the Commissioner must consider the lowest of these scores in conjunction

with Listing 12.05(C).    See 20 C.F.R., pt. 404, subpt. p., app. 1, 12.00 D.

       On the WAIS test, Dover had a verbal IQ of 72, a performance IQ of 74,

and a full scale IQ of 72. Because his lowest score was a full-scale IQ of 72, the

ALJ concluded Dover’s impairment did not meet the criteria of Listing 12.05(C).

Despite the fact that none of these IQ scores fall within the 60-70 range required

by Listing12.05(C), Dover contends on appeal that he met the IQ requirement of

Listing 12.05(C) because there is a standard margin of error in IQ tests. Relying

on a letter from a psychologist and an article by Dr. Wechsler indicating there is

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a margin of error in IQ testing, Dover claims that his IQ would have fallen within

the 60-70 range if the ALJ had taken into account this margin of error.

       We have previously rejected precisely this same “margin of error” argument

by claimant’s counsel. In    Brainard v. Secretary of Health and Human Servs.      , No.

93-5173, 1994 WL 170783, at **1 (10th Cir. May 5, 1994), we held that:

       We are without authority to modify the clear language of the
       regulations simply because [claimant’s] attorney read a paper by
       a psychologist recommending that the standard deviation be taken
       into account. . . . The [Commissioner] is authorized to enact
       regulations “to regulate and provide for the nature and extent of the
       proofs and evidence . . . in order to establish the right to benefits.”
       42 U.S.C. [§] 405(a). Under these circumstances, the
       [Commissioner’s] “legislative regulations are given controlling
       weight unless they are arbitrary, capricious, or manifestly contrary to
       the statute.” Chevron[,] U.S.A. Inc. v. Natural Resources Defense
       Council, Inc. , 467 U.S. 837, 844 (1984). We can only assume that
       the [Commissioner] was aware of the standard deviation when setting
       the IQ score threshold at 70 points. Because there is no evidence
       that the [Commissioner] acted arbitrarily or capriciously, [claimant’s]
       argument that he actually met the mental retardation criteria
       [applying a standard deviation] is meritless.

Id.; see also Ellison v. Sullivan , 929 F.2d 534 (10th Cir. 1990) (finding that

claimant’s verbal IQ of 72 did not satisfy the two-part test of Listing 12.05(C)).

       We note that all of the circuit courts that have considered similar “margin

of error” arguments with respect to Listing 12.05(C) have rejected it.      See

Anderson v. Sullivan , 925 F.2d 220, 223 (7th Cir. 1991) (standard error range

should not be factored into Listing 12.05(C)’s IQ score because the Commissioner

was entitled to rely on the plain language of the regulation);     Newland v. Apfel ,

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No. 97-4339, 1999 WL 435153, at **6 (6th Cir. June 17, 1999) (holding that

claimant is not entitled to “margin of error” because Social Security regulations

do not provide for functional equivalency when test scores are specified)

(unpublished disposition);    Bennett v. Bowen , No. 88-3166, 1989 WL 100665,

at **4 (4th Cir. Aug. 28, 1989) (rejecting claimant’s margin of error argument,

characterizing it as an assertion that “‘close counts in horseshoes’ as well as the

Listings”) (unpublished disposition);     see also Cockerham v. Sullivan , 895 F.2d

492, 495 (8th Cir. 1990) (holding that claimant’s IQ score of 71 could not be

liberally construed to meet the requirements in Listing 12.05(C)).

       The regulations do not indicate that standard errors of measurement should

be taken into consideration in determining whether an individual satisfies a

limitation criteria. Incorporating a margin of error into a claimant’s IQ test

results “would effectively expand the requisite I.Q. under [L]isting 12.05(C) . . .

[and] would alter the range of I.Q.s which satisfy [Listing 12.05(c)] in

contradiction of the federal regulations interpreting the Act.”   Bendt v. Chater ,

940 F. Supp. 1427, 1431 (S.D. Iowa 1996). Thus, we hold that the ALJ was not

obligated to take into consideration a margin of error in applying Listing 12.05(C)

and that his finding that Dover did not qualify under Listing 12.05(C) was

supported by substantial evidence on the record.




                                             -5-
                                II. Step Four Findings

      Dover next contends that the ALJ erred by failing to make required findings

regarding the demands of his past relevant work and his ability to meet those

demands given his RFC, citing    Winfrey v. Chater , 92 F.3d 1017 (10th Cir. 1996),

and Henrie v. United States Dep’t of Health & Human Servs.       , 13 F.3d 359

(10th Cir. 1993). The claimant bears the burden at step four of proving he cannot

return to his past relevant work, either as he performed it or as it is performed in

the national economy.    See Andrade v. Secretary of Health & Human Servs.       ,

985 F.2d 1045, 1051 (10th Cir. 1993). At step four, the ALJ must perform

a three-phase evaluation of a claimant’s physical and mental residual functional

capacity, the physical and mental demands of the claimant’s past relevant work,

and “whether the claimant has the ability to meet the job demands found in phase

two despite the mental and/or physical limitations found in phase one.”       Winfrey ,

92 F.3d at 1023. The ALJ must make specific findings at each step.        See id .

      The record shows that the ALJ questioned Dover and the vocational expert

(VE) about the demands of Dover’s past work. The ALJ obtained adequate

factual information about Dover’s past work demands to determine the physical

and mental demands of claimant’s past work. In his decision, the ALJ

specifically cited the testimony of the VE concerning the demands of Dover’s

past work. Although the ALJ’s findings as to the requirements of Dover’s


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former job and how they mesh with his impairments are brief, we find that the

ALJ adequately considered Dover’s RFC, the physical and mental demands of his

past work, and whether he has the ability to meet those job demands despite his

RFC limitations.   See Winfrey , 92 F.3d at 1022.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Senior Circuit Judge




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