Karen Sue Hancock v.  MICHAEL J. ASTRUE, Commissioner of Social Security

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 KAREN SUE HANCOCK,
Plaintiff-Appellant,
v. No. 11-1001 
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant-Appellee. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Jr., District Judge.
(1:08-cv-00291-WO-PTS)
Argued: October 26, 2011
Decided: January 5, 2012
Before TRAXLER, Chief Judge, and SHEDD and FLOYD,
Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Shedd and Judge Floyd joined.
COUNSEL
ARGUED: Jason Lee Wilson, H. RUSSELL VICK & ASSO-
CIATES, Greensboro, North Carolina, for Appellant. Gill
Paul Beck, OFFICE OF THE UNITED STATES ATTOR-

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NEY, Greensboro, North Carolina, for Appellee. ON BRIEF:
Susan Beller Donahue, Assistant Regional Counsel, SOCIAL
SECURITY ADMINISTRATION, Boston, Massachusetts,
for Appellee.
OPINION
TRAXLER, Chief Judge:
In 2004, Karen Sue Hancock filed an application for sup-
plemental security income ("SSI"), alleging both physical and
mental disability. After her claim was denied by the Commis-
sioner of the Social Security Administration, Hancock
requested a hearing before the Administrative Law Court. The
administrative law judge ("ALJ") denied her claim, and the
Appeals Council likewise denied her request for review. Hav-
ing exhausted her administrative remedies, Hancock filed a
civil action pursuant to 42 U.S.C. § 405(g). The district court
adopted the magistrate judge’s recommendation to grant the
Commissioner’s motion for judgment on the pleadings. Han-
cock now appeals the district court’s order affirming the
Commissioner’s denial of her application for SSI. For the rea-
sons that follow, we affirm.
I.
"This Court is authorized to review the Commissioner’s
denial of benefits under 42 U.S.C.A. § 405(g)." Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam)
(internal quotation marks omitted). "Under the Social Security
Act, [a reviewing court] must uphold the factual findings of
the [ALJ] if they are supported by substantial evidence and
were reached through application of the correct legal stan-
dard." Id. (alterations in original) (internal quotation marks
omitted). Substantial evidence means "such relevant evidence
as a reasonable mind might accept as adequate to support a
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conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotation marks omitted). It "consists of more than
a mere scintilla of evidence but may be less than a preponder-
ance." Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). "In
reviewing for substantial evidence, we do not undertake to
reweigh conflicting evidence, make credibility determina-
tions, or substitute our judgment for that of the [ALJ]." John-
son, 434 F.3d at 653 (alteration in original) (internal quotation
marks omitted). "Where conflicting evidence allows reason-
able minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [ALJ]." Id. (alter-
ation in original) (internal quotation marks omitted).
II.
The Commissioner uses a five-step process to evaluate
disability claims. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). Under this process, the Commissioner asks, in
sequence, whether the claimant: (1) worked during the alleged
period of disability; (2) had a severe impairment; (3) had an
impairment that met or equaled the requirements of a listed
impairment; (4) could return to her past relevant work; and (5)
if not, could perform any other work in the national economy.
See 20 C.F.R. § 416.920(a)(4). The claimant has the burden
of production and proof in Steps 1-4. See Hunter v. Sullivan,
993 F.2d 31, 35 (4th Cir. 1992) (per curiam). At Step 5, how-
ever, the burden shifts to the Commissioner "to produce evi-
dence that other jobs exist in the national economy that the
claimant can perform considering h[er] age, education, and
work experience." Id. If a determination of disability can be
made at any step, the Commissioner need not analyze subse-
quent steps. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
In Steps 1 and 2, the ALJ found that Hancock had not
engaged in substantial gainful activity since the date of her
application for SSI and that she suffered from severe impair-
ments, including low back pain due to degenerative disc dis-
ease, status post myocardial infarction, intelligence in the
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mentally retarded range, and depression with anxiety. In Step
3, the ALJ found that Hancock did not have an impairment
that met or equaled one of the listed impairments found at 20
C.F.R. Pt. 404, Subpt. P, App’x 1. Finally, in Steps 4 and 5,
the ALJ found that Hancock could not return to her past rele-
vant work but that other jobs existed in the national economy
that she could perform. Based on these findings, the ALJ
denied her application for SSI, concluding that she was not
disabled within the meaning of the Social Security Act.
The only issue on appeal is whether the ALJ erred by con-
cluding that Hancock’s level of cognitive functioning did not
meet or equal the listed impairment for mental retardation,
Listing 12.05.1 Listing 12.05 requires a showing of "deficits
in adaptive functioning initially manifested during the devel-
opmental period; i.e., the evidence demonstrates or supports
onset of the impairment before age 22" ("Prong 1"). Listing
12.05 also requires the satisfaction of one of four additional
requirements identified as Requirements A-D. At issue in this
case was Requirement C, which requires "[a] valid verbal,
performance, or full scale IQ of 60 through 70" ("Prong 2"),
as well as "a physical or other mental impairment imposing
an additional and significant work-related limitation of func-
tion" ("Prong 3").
The ALJ found that Hancock did not establish any of the
three prongs of Listing 12.05C. Although Hancock argues that
the ALJ erred with regard to his findings as to each of the
three prongs, the Commissioner does not contest Hancock’s
ability to establish Prong 3. Therefore, we are left to consider
whether substantial evidence existed to support the ALJ’s
findings with respect to Prongs 1 and 2. We address each con-
tention in turn and begin with Prong 2.
1For reasons that are unclear in the administrative record, the ALJ did
not consider whether any of Hancock’s physical ailments, rather than her
psychological ailments, met or equaled the requirements of a listed impair-
ment. Hancock does not raise this issue on appeal.
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III.
In an effort to satisfy Prong 2, Hancock underwent intelli-
gence testing ordered by the ALJ. The examiner, Dr. Appollo,
reported that Hancock had a verbal IQ of 66, a performance
IQ of 67, and a full scale IQ of 63. He then concluded that
Hancock was functioning in the mild level of mental retarda-
tion. At no point during Dr. Appollo’s narrative report of the
test results did he attest to the validity of the test results or
opine that Hancock gave her best efforts.
The ALJ gave Dr. Appollo’s opinions little weight and, as
a result, found that Hancock did not establish Prong 2. Ini-
tially, the ALJ explained this finding only in terms of the fail-
ures of the examiner: "Even though Dr. Joseph P. Appollo
found the claimant to have an ‘apparent’ valid IQ score of less
than 70, the claimant does not satisfy the requirements of
12.05C since Dr. Appollo never stated that the IQ score was
valid or that the claimant gave her best effort." A.R.2 19. Later
in his decision, however, the ALJ cited other reasons for dis-
crediting the IQ scores:
I have specifically considered the medical opinion of
the consultative psychologist Dr. Joseph Appollo
that the claimant was restricted because of her pur-
ported low IQ. This is inconsistent with the claim-
ant’s actual adaptive functioning as outlined above
and with the claimant’s treating psychiatrist’s notes.
Therefore, I am assigning only very limited weight
to the opinions of Dr. Appollo.
A.R. 23.
Hancock argues that the ALJ’s discrediting of her IQ scores
was erroneous for two reasons: (1) the ALJ erred by discredit-
ing the IQ scores based on the examiner’s failure to attest to
2"A.R." refers to the Social Security Administrative Record in this case.
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the validity of the results; and (2) the ALJ erred in consider-
ing the assessments of treating physicians in discrediting the
IQ scores. We begin by examining the import of the examin-
er’s failure to attest to the validity of the IQ scores.
A.
This circuit permits an ALJ to weigh conflicting IQ test
results, see Murphy v. Bowen, 810 F.2d 433, 437 (4th Cir.
1987), but it has not addressed the ability of an ALJ to reject
an IQ score that is the only such score in the record. Other cir-
cuits, however, permit an ALJ to do so in certain circum-
stances. See Lax v. Astrue, 489 F.3d 1080, 1086-87 (10th Cir.
2007) (scores not accurate reflection of intellectual capabili-
ties in light of other evidence); Markle v. Barnhart, 324 F.3d
182, 186 (3d Cir. 2003) (scores inconsistent with ability to
care for oneself and perform activities of daily living); Clark
v. Apfel, 141 F.3d 1253, 1256 (8th Cir. 1998) (scores derived
from "first and only meeting" with examiner and were incon-
sistent with record of functional ability and prior medical
record); Muse v. Sullivan, 925 F.2d 785, 789-90 (5th Cir.
1991) (per curiam) (scores inconsistent with job history, past
medical records, and showing of good memory; claimant
unable to see during examination); Popp v. Heckler, 779 F.2d
1497, 1499-1500 (11th Cir. 1986) (per curiam) (scores incon-
sistent with academic achievement; claimant trying to appear
unfavorable). We agree with our sister circuits that an ALJ
has the discretion to assess the validity of an IQ test result and
is not required to accept it even if it is the only such result in
the record.
Having determined that certain circumstances permit an
ALJ to discredit an IQ score, we are left to decide whether
sufficient circumstances existed in this case. Both parties pre-
sume that in discrediting the IQ scores based, in part, on cer-
tain failures of the test examiner, the ALJ relied on language
in the introductory section to the Disability Listings for Men-
tal Disorders. That language provides that "since the results of
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intelligence tests are only part of the overall assessment, the
narrative report that accompanies the test results should com-
ment on whether the IQ scores are considered valid and con-
sistent with the developmental history and the degree of
functional limitation." 20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 12.00(D)(6)(a). In light of the Commissioner’s decision to
use the word "should" rather than "shall," see Revised Medi-
cal Criteria for Evaluating Mental Disorders and Traumatic
Brain Injury, 65 Fed. Reg. 50746, 50767 (Aug. 21, 2000),
Hancock argues that an examiner’s failure to comment on the
IQ scores’ validity does not mandate that the scores be invali-
dated.
It is not at all clear whether an examiner’s failure to attest
to the validity of IQ scores alone would be sufficient to sup-
port an ALJ’s decision to discredit the only IQ scores in the
record. However, we need not address that issue in this case.
Here, in discrediting the IQ scores, the ALJ relied on the
examiner’s omission as well as the results’ inconsistency with
both the claimant’s actual functioning and with the notes of
treating psychiatrists. These facts bring this case in line with
the above-cited cases from the Third, Fifth, Eighth, Tenth,
and Eleventh Circuits in which an ALJ discredited IQ scores
based on other evidence contradicting them. Accordingly, we
conclude that the evidence considered by the ALJ provides
sufficient support for the ALJ’s rejection of the IQ scores. See
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) ("[A]
valid I.Q. score need not be conclusive of mental retardation
where the I.Q. score is inconsistent with other evidence in the
record of the claimant’s daily activities and behavior.").
B.
Hancock argues nonetheless that it was improper for the
ALJ to rely on the opinions of treating physicians in conclud-
ing that she did not establish Prong 2. Hancock first argues
that the ALJ’s ordering of IQ tests shows that the existing
medical evidence from treating physicians was insufficient.
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This argument, however, is undermined by the transcript of
the administrative hearing, which establishes that the ALJ
ordered the exam only because the applicable Disability List-
ing required a current IQ score and no score was in the record.
Hancock also argues that controlling weight can only be
given to medically acceptable diagnostic techniques, see 20
C.F.R. § 416.927(d)(2), and submits that the treating physi-
cians’ estimates of her intellectual functioning were not based
on medically acceptable diagnostic techniques. This argument
overlooks the fact that Hancock had the burden in Step 3 to
satisfy Listing 12.05 by providing valid IQ scores within the
required range. Even assuming Hancock is correct that the
treating physicians’ techniques were not medically accept-
able, the examiner’s omission, coupled with the evidence of
the claimant’s actual functioning, provide sufficient support
for the ALJ’s rejection of Hancock’s IQ scores. See Popp, 779
F.2d at 1499 ("[T]est results must be examined to assure con-
sistency with daily activities and behavior.").
IV.
As previously noted, Hancock can prevail only if she estab-
lishes that the ALJ erred in his analysis of Prong 1 and Prong
2. Therefore, even if the ALJ’s finding concerning Prong 2 of
Listing 12.05C did not rest on substantial evidence, we would
still be required to affirm the ALJ’s decision if his finding
with regard to Prong 1 was based on substantial evidence. The
ALJ found no deficits in adaptive functioning generally and
also found that no deficiency manifested itself before the age
of 22. Either finding alone, if supported by substantial evi-
dence, would be sufficient to support the conclusion that Han-
cock did not satisfy Prong 1. Therefore, we must affirm the
ALJ’s decision if we find substantial evidence to support his
findings with respect to either of the two components of
Prong 1 of Listing 12.05C.
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A.
In finding no deficits in adaptive functioning generally, the
ALJ concluded that "the claimant has worked several jobs and
performed a variety of tasks which would be expected to be
beyond the capacity of a mentally retarded person." A.R. 19.
With regard to past jobs, the ALJ found that Hancock previ-
ously worked as a battery assembler and a drop clipper.3 With
regard to tasks, the ALJ noted that Hancock has the ability to
shop, pay bills, and make change; that she takes care of three
small grandchildren at a level of care that satisfies the Depart-
ment of Social Services; that she does the majority of her
household’s chores, including cooking and baking; that she is
attending school to obtain a GED; and that she does puzzles
for entertainment. We believe this evidence was sufficient to
support the ALJ’s conclusion that Hancock had no deficits in
adaptive functioning.
Hancock, however, argues that the ALJ gave too much
weight to this evidence. For example, Hancock notes that she
attended GED classes only because the Department of Social
Services would agree to pay for daycare for her grandchil-
dren. She also emphasizes that although she attended GED
classes, she was unable to successfully take any of the GED
tests. The ALJ had the duty to find facts and consider the
import of conflicting evidence. See Doss v. Dir., Office of
Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995).
Hancock already presented these arguments to the ALJ, and
the ALJ concluded that they did not change his view of Han-
3According to the vocational expert in the administrative proceeding,
these jobs are semi-skilled jobs. Hancock argues that this circuit has previ-
ously found similar jobs to be consistent with mental retardation in certain
circumstances. However, the mere fact that Hancock performed work that
could have been performed by a mentally retarded person does not mean
that she was mentally retarded. Moreover, in finding no deficits in adap-
tive functioning, the ALJ also relied on the various tasks that Hancock is
able to complete, which, alone, amount to substantial evidence supporting
the ALJ’s decision.
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cock’s adaptive functioning. We are not at liberty to "reweigh
conflicting evidence . . . or substitute our judgment for that of
the [ALJ]." Johnson, 434 F.3d at 653 (alteration in original)
(internal quotation marks omitted); see also Smith, 99 F.3d at
638 ("We must sustain the ALJ’s decision, even if we dis-
agree with it, provided the determination is supported by sub-
stantial evidence.").
B.
As to the ALJ’s finding that no deficiency manifested itself
during the developmental period, we believe it likewise was
supported by substantial evidence. Although the evidence
showed that Hancock’s grades declined from the fifth to the
eighth grades, the ALJ attributed this decline to the fact that
Hancock was absent from school for approximately half of
that time. Additionally, although Hancock provided evidence
of low IQ scores, the ALJ found that the scores were higher
than could be expected from someone with mental retarda-
tion. Hancock had the burden of proving a deficiency during
her developmental years, see Hunter, 993 F.2d at 35, and she
failed to do so. Accordingly, we hold that the ALJ’s finding
as to this component of Prong 1 of Listing 12.05C rested on
substantial evidence.
V.
We find that substantial evidence supports the ALJ’s con-
clusion that Hancock is not disabled within the meaning of the
Social Security Act. Accordingly, we affirm the district
court’s grant of judgment on the pleadings in favor of the
Commissioner.
AFFIRMED
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