Donald Bryant, Sr. v. John J. Callahan ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3530
___________
Donald Bryant, Sr., on behalf of *
Donald Bryant, Jr., *
* Appeal from the United States
Appellant, * District Court for the
* Eastern District of Arkansas.
v. *
*
Kenneth S. Apfel, Commissioner of *
Social Security Administration,1 *
*
Appellee.
___________
Submitted: February 9, 1998
Filed: April 16, 1998
___________
Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.
___________
HANSEN, Circuit Judge.
1
Kenneth S. Apfel has been appointed to serve as Commissioner of the Social
Security Administration and is automatically substituted as appellee. See Fed. R. App.
P. 43(c) (1).
Donald Bryant, Sr. (Mr. Bryant), appeals the district court's2 grant
of summary judgment to the Social Security Administration, affirming the
Commissioner's decision to deny his application for children's Supplemental
Security Insurance (SSI) disability benefits on behalf of his son, Donald
Bryant, Jr. (Donald Jr.). We affirm.
I.
Mr. Bryant applied for children's SSI disability benefits on behalf
of his son, Donald Jr., alleging that Donald Jr. was disabled due to a
learning disability and migraine headaches. The Social Security
Administration denied the claim both initially and upon reconsideration.
Mr. Bryant requested and received a hearing before an Administrative Law
Judge (ALJ) on January 12, 1995. Donald Jr. and his father both testified
at the hearing.
At the time of the hearing, Donald Jr. was 14 years old and in the
sixth grade. He was attending special education classes and said he had
trouble concentrating. He testified that he gets along well with his
teachers and friends, with the exception of two or three fights. Donald
Jr. complained that he suffers migraine headaches two or three times a
week, lasting two to three hours at a time. He said he has had these
headaches since he was born. The headaches usually start around 2:00 in
the afternoon. He said they make him dizzy, sick to his stomach, and
bring on photophobia (a painful sensitivity to light). Relief comes only
from the combination of prescription medication and sleep; aspirin and
Tylenol had no effect. Donald Jr. is also anemic, which makes him tired
and less active than other children.
2
The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, trying the case by consent of the parties pursuant to 28
U.S.C. § 636(c) (1994).
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Although he testified that he had these headaches his whole life,
Donald Jr. sought medical attention for the first time in September 1994,
just months prior to the hearing. At that time, the results of a CT scan
performed on his head were normal, and Dr. Joe Elser diagnosed the
headaches as migraine headaches. He prescribed Amitriptyline for Donald
Jr. and instructed Donald Jr. to keep a diary of his headaches, to continue
the medication for two to three months, to report back on its
effectiveness, and to consider further therapy if the medication proved to
be unsuccessful. There is no indication that Donald Jr. sought further
treatment.
In a 1991 intellectual evaluation recommended by the school system
due to his poor academic progress, Donald Jr. scored a verbal IQ of 79, a
performance IQ of 93, and a full scale IQ of 85 on the Weschler
Intelligence Scale for Children-Revised. The results of this evaluation
placed Donald Jr. in the slow learner level of intellectual functioning.
Subsequently in 1995, Donald Jr. was reevaluated at the request of his
attorney. On this occasion, Donald Jr. scored a verbal IQ of 70, a
performance IQ of 71, and a full scale IQ of 69 on the Weschler
Intelligence Scale for Children-Revised. These scores placed Donald Jr.
within the classification of mild retardation.
Donald Jr.'s fifth grade teacher indicated that he was doing well in
school. She said Donald Jr. behaves in an age appropriate manner, that he
is polite and interacts well with his classmates, and that he always
completes his work assignments. She said he is sleepy at times but
concentrates well. Records indicate that Donald Jr. misses school only 3
or 4 times a year due to his headaches.
The ALJ found that Donald Jr. has severe impairments, but that they
do not meet or equal a listed impairment. The ALJ then performed an
individual functional assessment and determined that Donald Jr.'s
impairments are not of comparable severity to those which would disable an
adult. Accordingly, the ALJ denied benefits, and the appeals council
denied further review.
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On behalf of his son, Mr. Bryant sought judicial review of the agency
decision. The district court concluded that the ALJ's decision was
supported by substantial evidence on the record. Thus, the court granted
summary judgment in favor of the Commissioner. Mr. Bryant appeals, arguing
that the ALJ's decision is not supported by substantial evidence because
Donald Jr. has a listed impairment of mental retardation, evidenced by his
full scale IQ score of 69 and his history of migraine headaches.
II.
We review the Commissioner's denial of a child’s SSI disability
benefits by considering whether substantial evidence supports the
Commissioner's decision. Briggs v. Callahan, No. 97-1488, 1998 WL 119768,
at * 1 (8th Cir. Mar. 19, 1998); Young ex rel. Trice v. Shalala, 52 F.3d
200, 201-02 (8th Cir. 1995). Substantial evidence exists when a reasonable
mind would conclude the evidence is adequate to support the decision, and
we consider evidence that detracts from the Commissioner's decision as well
as evidence that supports it. Briggs, 1998 WL 119768, at *1.
Consistent with the standards applicable at the time of the ALJ's
decision, the ALJ followed a four-step sequential evaluation process for
determining whether Donald Jr. was entitled to children's SSI benefits.
See 20 C.F.R. § 416.924(b)-(f) (1995). Using this process, the ALJ determined
that (1) Donald Jr. is a student and not engaged in work activity, (2) he
suffers from severe impairments including a learning disability and
migraine headaches, but (3) his impairments do not meet or equal a listed
impairment, and additionally, (4) he does not have an impairment or
combination of impairments that are comparable to those which would disable
an adult.
On August 22, 1996, prior to the district court's review of the ALJ's
decision, the President signed into law the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996. See Pub. L. No. 104-193, 110
Stat. 2105, 2188 (1996).
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This new legislation requires a child to prove that he or she has a
"medically determinable physical or mental impairment, which results in
marked and severe functional limitations." 42 U.S.C.A. § 1382c(a)(3)(C)(i)
(West Supp. 1998). This is a more stringent standard than the old one.
Briggs, 1998 WL 119768, at *2. This new standard eliminates the fourth step
in the old evaluation process, which previously allowed a finding of
disability if the child suffered a "medically determinable physical or
mental impairment of comparable severity" to one that would disable an
adult. 42 U.S.C. § 1382c(a)(3)(A) (1994). The new standard applies to
Donald Jr.'s case, because this case was pending at the time the new
legislation was enacted. See Briggs, 1998 WL 119768, at *2. Nevertheless,
we will apply the old standard as did the ALJ, because where a claim was
properly denied under the old standard, "it must also be denied under the
new, more stringent, standard." Id. We conclude that the ALJ properly
denied the claim under the old standard.
Mr. Bryant's only argument is that the ALJ's finding that Donald Jr.'s
impairments do not meet the listing for mental retardation is not supported
by substantial evidence. A child meets the mental retardation listing and
is disabled when the child has "[1] [a] verbal, performance, or full scale
IQ of 60 through 70 and [2] a physical or other mental impairment imposing
additional and significant limitation of function." 20 C.F.R. pt. 404,
subpt. P, app. 1, § 112.05(D) (1995).
Donald Jr.'s 1995 full scale IQ score of 69 meets the first prong of
the listing. See Briggs, 1998 WL 119768, at *2. The ALJ discounted this
score by considering that the result is inconsistent with Donald Jr.'s 1991
full scale IQ score of 85. The ALJ found that the earlier, significantly
higher score combined with his appearance and demeanor at the hearing
indicate that Donald Jr. is closer to the low normal range than the retarded
range of intelligence. Mr. Bryant asserts that the ALJ should not have
considered the 1991 score, arguing that it is not sufficiently current for
an accurate assessment under the listing. Social Security regulations state
that the results of IQ tests obtained between ages 7 and 16 should be
considered current for only two years
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when the IQ is 40 or above. See 20 C.F.R. pt. 404, subpt. P, app. 1, §
112.00(D). The Commissioner argues that even absent the earlier higher IQ
scores, other factors demonstrate that the lone 69 score is unreliable. The
Commissioner argues that the 69 score is simply not in line with Donald
Jr.'s actual intellectual functioning because Donald Jr.'s grades show
marked improvement in almost all courses from 1991 through 1995. The
Commissioner asserts that such consistent scholastic improvement is
inconsistent with the alleged decline in Donald Jr.'s intellectual
functioning claimed to be evidenced by the lone 69 IQ score of the 1995
evaluation.
We need not resolve this factual dispute, because we agree with the
district court that even assuming Donald Jr. meets the first prong of the
mental retardation listing with his full scale IQ score of 69, he does not
meet the second prong. The second prong of the mental retardation listing,
requiring an "additional and significant limitation of function," §
112.05(D), is met when a claimant "has a physical or additional mental
impairment that has a 'more than slight or minimal' effect on his ability
to perform work." Sird v. Chater, 105 F.3d 401, 403 (8th Cir.1997) (quoting Cook v. Bowen, 797 F.2d
687, 690 (8th Cir.1986), and discussing the listing at § 12.05(C) which is the adult mental retardation standard).
The additional impairment need not be disabling in and of itself but need only result in a significant work-related
limitation of function to satisfy the adult standard. See id.
Mr. Bryant asserts that Donald Jr.'s headaches have a significant
effect on his ability to function sufficient to satisfy the second prong of
the listing. He asserts that the ALJ found as much by stating at step two
of the evaluation process that Donald Jr.'s learning disability and
headaches "are severe impairments." (Appellant's Adden. at 5.) We
disagree.
At step two, where the ALJ concludes that the learning disability and
headaches are severe impairments, the ALJ's imprecise language causes
confusion for the reader. We note that later in the decision, however, the
ALJ specifically finds at step three that
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while Donald Jr. has a marked limitation in the cognitive domain, his
headaches "impose no more than a slight limitation of function." (Id. at
6.) In this manner, the ALJ explains his reasoning more fully. When the
ALJ separately analyzes the functional limitations caused by each impairment
at step three, we see that the ALJ actually considers Donald Jr.'s learning
disability as a significant limitation but views the headaches as no more
than a slight limitation of function. The earlier imprecise wording is
clarified through the later findings. We have often "held that '[a]n
arguable deficiency in opinion-writing technique is not a sufficient reason
for setting aside an administrative finding where . . . the deficiency
probably ha[s] no practical effect on the outcome of the case.'" McGinnis
v. Chater, 74 F.3d 873, 875 (8th Cir. 1996) (quoting Benskin v. Bowen, 830
F.2d 878, 883 (8th Cir. 1987)) (alterations in original). Our review of the
record convinces us that substantial evidence exists to support the ALJ's
conclusion that Donald Jr.'s headaches impose no more than a slight
limitation of function at this time, which is not sufficient to satisfy the
second prong of the mental retardation listing. He has missed little school
on account of his headaches. His headaches are responding to his
medication, which he only recently sought and obtained. Additionally, his
school work has been improving, and he gets along well with others at
school.
We conclude that Donald Jr. does not satisfy the requirements for a
listed impairment, and the ALJ's decision to deny benefits is supported by
substantial evidence.
III.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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