     Case: 15-60304      Document: 00513390672         Page: 1    Date Filed: 02/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60304                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         February 22, 2016
CEDRIC MCCASKILL,                                                          Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SOCIAL SECURITY ADMINISTRATION,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:14-CV-24


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Cedric McCaskill (“Appellant”) applied for disability
benefits, but his claim was ultimately denied by the Administrative Law Judge
(the “ALJ”) and the Appeals Council. Appellant then filed a complaint in the
district court. The Magistrate Judge (the “Magistrate”) recommended that the
Commissioner’s decision be affirmed. Appellant objected. The district court



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-60304
overruled Appellant’s objection and adopted the Magistrate’s Report and
Recommendation. Appellant timely appealed to this Court. After reviewing
the record and the applicable law, we find no reversible error and AFFIRM.
                         FACTUAL BACKGROUND
      Appellant filed for disability benefits in 2009 alleging back problems and
a hearing deficit on his left side. After his application was initially denied by
the ALJ, the Appeals Council remanded for further administrative
proceedings, particularly, the Appeals Council directed the ALJ to obtain a
consultative mental examination that included an IQ score and a medical
statement of Appellant’s abilities.        On remand, the ALJ obtained the
consultative mental evaluation, and an IQ score from Dr. Patsy Zakaras
(“Dr. Zakaras”).   After reviewing the new information and the previously
established record, the ALJ again denied Appellant benefits because Appellant
did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpt. P, App. 1 for presumptive disability. Specifically, Appellant’s claim to
the Listed Condition of intellectual disability under 12.05 was rejected.
Appellant once more sought review from the Appeals Council, but was denied.
The ALJ’s decision was ultimately affirmed by the district court in 2015.
                                DISCUSSION
      The Commissioner’s decision is granted great deference.          Leggett v.
Chater, 67 F.3d 558, 564 (5th Cir. 1995).
      Our review of the Commissioner’s decision is limited to two
      inquiries: (1) whether the decision is supported by substantial
      evidence on the record as a whole, and (2) whether the
      Commissioner applied the proper legal standard. Substantial
      evidence is such relevant evidence as a reasonable mind might
      accept as adequate to support a conclusion. It is more than a mere
      scintilla and less than a preponderance.          In applying the
      substantial evidence standard, the court scrutinizes the record to

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                                 No. 15-60304
      determine whether such evidence is present, but may not reweigh
      the evidence or substitute its judgment for the Commissioner’s.
      Conflicts of evidence are for the Commissioner, not the courts, to
      resolve. If the Commissioner’s fact findings are supported by
      substantial evidence, they are conclusive.

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (internal citations and
quotations omitted).
      The governing regulations set forth a five-step sequential evaluation
process for determining disability: (1) whether the claimant is working;
(2) whether the claimant has a medically severe impairment; (3) whether the
impairment is severe enough to meet the criteria of a listed impairment;
(4) whether the impairment prevents the claimant from returning to past
relevant work; and (5) if an individual’s impairment precludes him from
performing his past work, other factors including age, education, past work
experience, and residual functional capacity must be considered to determine
if other work can be performed. Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994).
      The claimant has the burden of proof at the first four steps of the process.
See Leggett, 67 F.3d at 564. At step five, the burden shifts to the Commissioner
to show that the claimant can perform other work that exists in significant
numbers in the national economy. See Perez v. Heckler, 777 F.2d 298, 300-301
(5th Cir. 1985). If the Commissioner meets that burden, then the burden shifts
back to the claimant to prove that he cannot perform the other work. Carey v.
Apfel, 230 F.3d 131, 146 (5th Cir. 2000).
      Appellant raises six issues for review: (1) whether the ALJ complied with
the Appeal’s Council order to obtain a consultative mental evaluation,
including Appellant’s IQ score; (2) whether the evidence supported the ALJ’s
finding that Appellant did not meet the criteria of a listed impairment under
20 C.F.R. Ch. III, Pt. 404 12.05 (B), or 12.05 (C); (3) whether the Magistrate
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                                        No. 15-60304
erred in granting a protective order preventing Appellant from deposing
Dr. Zakaras about the IQ score on her report; (4) whether the ALJ properly
considered Dr. Zakaras’s report; (5) whether the district court erred in
adopting the Magistrate’s decision and affirming the ALJ; (6) whether
Appellant’s due process rights were violated. We address each issue below.
               1. The Appeals Council’s order.
       After the case was remanded, the ALJ ordered a consultative mental
examination, including an IQ score. After receiving the evaluation results, the
ALJ wrote to psychologists Dr. Zakaras and Dr. Fontenelle inquiring about the
validity of the IQ scores in their respective reports. Dr. Fontenelle responded,
validating Appellant’s full scale IQ score of 69. 1 There is no record evidence
that Dr. Zakaras responded. Appellant’s IQ score in Zakaras’s report is 59.
       Appellant contends that the validity of the IQ score on Dr. Zakaras’s
reports was never established. Consequently, Appellant argues that the ALJ
did not comply with the Appeals Council’s order.
       We are unpersuaded by Appellant’s argument. It is undisputed that the
ALJ obtained a consultative evaluation and an IQ score. Appellant focuses his
appeal on the validity, or lack of thereof, of his IQ score. But there is nothing
in the ALJ’s final decision indicating that the IQ scores from Dr. Zakaras’s or
Dr. Fontenelle’s reports were invalid. In fact, the ALJ considered both IQ
scores, as well as Appellant’s special education history, in his thorough
analysis of the evidence. The ALJ ultimately denied Appellant’s disability
application because, as discussed below, Appellant failed to meet the required
adaptive functioning deficit—not because of his IQ scores. 2 Without doubt, the


       1   This score was available prior to the Appeals Council’s remand order.

       2  See, e.g., Vaughn v, Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (affirming ALJ’s finding
of no disability as supported by substantial evidence due in part to the fact that “the record
reflects that [the claimant] was able to, and did, work for several years while suffering from
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                                       No. 15-60304
ALJ complied with the Appeals Council’s order to obtain a consultative mental
evaluation and an IQ score.
             2. Disability criteria under 12.05.
       The regulations clearly state that the IQ test score alone does not
establish intellectual disability as a Listed impairment.                   Appellant must
demonstrate that his impairment meets all the specified medical criteria of the
listing, rather than merely some of the criteria. Before proceeding any further
in the disability eligibility analysis, Appellant must satisfy the diagnostic
definition of intellectual disability—he must demonstrate “significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested before age 22.” Randall v. Astrue, 570 F.3d
651, 656-662 (5th Cir. 2009) (emphasis added); 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.05.         Therefore, satisfying the intellectual disability
definition of 12.05 is a prerequisite to considering 12.05 (A), (B), (C), or (D). 3



ailments she now asserts are disabling”); Muse v. Sullivan, 925 F.2d at 789-90 (finding
substantial evidence supported the ALJ’s finding that claimant was not mentally disabled
notwithstanding an IQ score of 58 based, in part, on the fact that “[t]here was no evidence in
the record that [the claimant] had ever been fired from a job because he could not
comprehend, remember, or carry out the mental . . . duties” and thus the claimant’s “work
experience belie[d] that he was [mentally disabled]”).

       3  12.05 Intellectual Disability: Intellectual Disability 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.
A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting,
eating, dressing, or bathing) and inability to follow directions, such that the use of
standardized measures of intellectual functioning is precluded; OR B. A valid verbal,
performance, or full scale IQ of 59 or less; OR C. A valid verbal, performance, or full scale IQ
of 60 through 70 and a physical or other mental impairment imposing an additional and
significant work-related limitation of function; OR D. A valid verbal, performance, or full
scale IQ of 60 through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
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      Part of the disability definition is the adaptive functioning prong. In
Heller v. Doe, 509 U.S. 312, 329 (1993), the Court described “adaptive
functioning” as a person’s “effectiveness in areas such as social skills,
communication, and daily living skills, and how well the person meets the
standards of personal independence and social responsibility expected of his or
her age by his or her cultural group.” Adaptive activities include cleaning,
shopping, cooking, maintaining a residence, taking public transportation, and
caring appropriately for grooming and hygiene. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1200(C)(1).
      Here, the record contains sufficient evidence supporting the ALJ’s
finding that Appellant failed to meet the required adaptive functioning prong.
Appellant’s own testimony reflects that he can clean, mow his yard, live by
himself, do his own housekeeping, shopping, laundry, cooking (or get his own
meals), drive, and attend to his own grooming and hygiene.
      Dr. Zakaras’s evaluation also revealed that Appellant can perform
routine tasks, follow and understand directions, cope with work stress, and
respond to supervision; he has fairly good remote memory, his thoughts are
logical and goal oriented, and that he has not been in counseling. Dr. Zakaras
also diagnosed Appellant with a learning disorder, not an intellectual
disability.
      In addition, Dr. Fontenelle’s evaluation found that Appellant showed
relative strength in his social adaptive independent living. This evidence,
coupled with Appellant’s fifteen-year career as a longshoreman, supports that
Appellant does not have adaptive deficits with an onset before age twenty-two.




4. Repeated episodes of decompensation, each of extended duration. Greenspan, 38 F.3d 232,
236 (5th Cir. 1994).
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                                       No. 15-60304
       But Appellant argues that the ALJ conclusively found that Appellant
met the adaptive deficit requirement. Appellant relies on a statement the ALJ
made at a hearing on remand.                After reviewing primarily the evidence
concerning Appellant’s IQ score, the ALJ stated that he thought Appellant met
the adaptive deficit requisite. Therefore, Appellant contends that the only
issue to be determined on remand was whether the IQ scores were valid.
       In denying Appellant relief, the district court characterized the ALJ’s
statement as a comment rather than a finding of fact. 4 The district court also
pointed to the lack of legal authority construing an ALJ’s comments at a
hearing as a conclusive and binding finding of fact. See P.C.S. v. U.S. Comm’r
Soc. Sec. Admin., 2011 WL 4499368 at *1 (W.D. La. Sept. 27, 2011) (holding
that an ALJ’s written decision, which provides findings of fact and the reasons
for denying a claim, controls over statements that the ALJ made at the
administrative hearing).
       The Commissioner asserts that any error based on the ALJ’s statement
is harmless because Appellant has not proven his adaptive deficits. See Morris
v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (procedural perfection in an
administrative procedure is not required).
       We agree with the district court and Appellee.                   It is improper to
characterize the ALJ’s comment at the remand hearing as a finding of fact.
The comment was made after the ALJ reviewed primarily the IQ related
evidence, not the entire record. Not only should the written decision control
over the ALJ’s oral statement but here the record clearly shows this was a
premature impression because the ALJ subsequently issued a detailed written
decision based on all the record evidence.



       4 A district court’s findings of fact are reviewed for clear error and legal conclusions
are reviewed de novo. Aransas Project v. Shaw, 775 F.3d 641, 653 (5th Cir. 2014).
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                                     No. 15-60304
      Additionally, the alleged error was harmless, as substantial evidence
supports the conclusion that Appellant did not meet the adaptive deficit
requirement of 12.05. Any evidence to the contrary cited by Appellant is
insufficient to warrant reversal on the present record. See Perez, 415 F.3d at
461 (conflicts of evidence are for the Commissioner, not the courts, to decide). 5
Appellant failed to prove the disability eligibility criteria under 12.05.
            3. The sufficiency of the record and the protective order.
      Appellant also argues that the ALJ made a decision based on an
incomplete record because no IQ validating statement was obtained from
Dr. Zakaras.     Appellee contends that the record evidence is sufficient to
support the ALJ’s decision. We agree with Appellee.
      The Fifth Circuit has determined that trial courts should not
      reverse or remand determinations because documents are missing
      where the record contains enough evidence for the ALJ to make a
      determination. See Torres, 48 F.3d at 893-94 (claimant failed to
      demonstrate that lost evidence affected the ALJ’s ability to render
      an informed decision); see also Brady v. Apfel, 41 F. Supp. 2d 659,
      668 (E.D. Tex. 1999) (rejecting argument that incomplete
      administrative record is per se denial of due process; affirming
      denial where documents would be of de minimis value and were
      irrelevant); Hawkins v. Barnhart, 356 F. Supp. 2d 359, 365-66
      (S.D. N.Y. 2005) (upholding denial of benefits where ALJ’s decision
      supported by substantial evidence even absent missing
      documents). Agency records furnished to a court are adequate for
      due process purposes unless they do not permit meaningful
      judicial review of the adjudication process. Brady, 41 F. Supp. 2d
      at 668 (citing Harrison v. PPG Indus., Inc., 446 U.S. 578, 594,
      100 S. Ct. 1889, 64 L.Ed.2d 525 (1980); Torres, 48 F.3d at 887).




      5  In the end, the ALJ concluded that Appellant could perform light work available in
significant numbers in the national economy and Appellant failed to provide evidence
rebutting the ALJ’s determination. See Carey, 230 F.3d at 146.

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                                     No. 15-60304
Quintanilla v. Astrue, 619 F. Supp. 2d 306, 325 (S.D. Tex. 2008). Here, as
detailed above, the 659 page record provides ample evidence that Appellant
did not meet the adaptive deficiency requirement of 12.05 Zakaras’s missing
statement validating Appellant’s IQ score is of no consequence, but in any
event, nothing in the ALJ’s order or even in Zakaras’s own report suggests that
Appellant’s IQ score is incorrect.
      The sufficiency of the record also obviated the need for a status
conference or for the deposition of Dr. Zakaras, which Appellant requested in
order to complete the record. 6 Accordingly, the Magistrate properly granted a
protective order preventing a deposition of Dr. Zakaras.
            4. The psychological reports.
      Appellant also argues that he was prejudiced because the ALJ selectively
relied on portions of Dr. Zakaras’s report but discounted evidence in the same
report supporting that Appellant’s alleged adaptive deficit was present before
age twenty- two. Appellant also contends that the ALJ improperly relied on a
psychological report from Dr. Sharon Scales
      In rebuttal, Appellee contends that the ALJ considered Dr. Zakaras’s
entire report and that Appellant waived any objection to the ALJ’s reliance on
Dr. Scales’s report by not raising the issue in the district court. See Singleton
v. Wulff, 428 U.S. 106, 120 (1976).
      Appellant’s first contention does not warrant reversal because conflicts
of evidence are for the Commissioner, not the courts, to decide. Perez, 415 F.3d
at 461. It is not the job of this panel to reweigh evidence, or substitute its
judgment for the Commissioner’s. Id. Even assuming the presence of some




      6 Evidentiary rulings are reviewed under a deferential abuse of discretion standard.
Aransas Project, 775 F.3d at 655.
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                                  No. 15-60304
contrary evidence, the record contains substantial evidence to support the
ALJ’s findings.
      Second, Appellant waived any issue concerning Dr. Scales’s report by not
raising it in the district court. Appellant does not establish any extraordinary
circumstances for this panel to make an exception. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
           5. The district court’s decision.
      Appellant next contends that the district court applied the incorrect legal
standard, 12.05(D), in adopting the Magistrate’s Report and Recommendation.
As Appellee points out, however, nothing in the district court’s order indicates
any reliance on 12.05 (D). Moreover, the relevant issue is whether there is
substantial evidence supporting the ALJ’s decision, and we have already
concluded that there is.
           6. Due process.
      Last, Appellant asks for remand or reversal based on the errors he
alleges that the ALJ and the district court committed. In the absence of
reversible error, we deny such relief. Alternatively, he seeks remand to file a
brief before the Appeals Council on his second appeal. We also deny this
request as nothing prevented Appellant from briefing his case to the Appeals
Council. Appellant had the opportunity to brief his points of contention in the
district court.
      For these reasons, the district court’s judgment is AFFIRMED.




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