Callins v. Apfel, 10th Cir. (2000)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
FOR THE TENTH CIRCUIT
JAN 6 2000
PATRICK FISHER
Clerk
HARMON CALLINS,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, Commissioner,
Social Security Administration,
No. 98-6415
(D.C. No. 97-CV-1588)
(W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the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.
Plaintiff-appellant Harmon Callins appeals from an order of the district

court affirming the Commissioners decision denying his application for Social
Security disability benefits. Appellant filed for these benefits in September 1994.
He alleged disability based on back problems, high blood pressure, and mental
retardation. The agency denied his application initially and on reconsideration.
On February 13, 1996, appellant received a de novo hearing before an
administrative law judge (ALJ). The ALJ determined that appellant retained the
residual functional capacity (RFC) to perform the full range of light work, prior
to the expiration of his insured status on March 31, 1994. He found that appellant
could not return to his past relevant work, but that there were a significant
number of other jobs which he could perform in the national or regional economy.
Applying the Rule 202.17 of the Medical-Vocational Guidelines, 20 C.F.R. pt.
404, Subpt. P, App. 2 (the grids) as a framework, the ALJ concluded that
appellant was not disabled within the meaning of the Social Security Act. The
Appeals Council denied review, making the ALJs decision the Commissioners
final decision.
We review the Commissioners decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
correct legal standards were applied. See Andrade v. Secretary of Health &
Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence
-2-
is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion. Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)
(quotations omitted).
The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing
a prima facie case of disability at steps one through four. See id. at 751 n.2.
If the claimant successfully meets this burden, the burden of proof shifts to the
Commissioner at step five to show that the claimant retains sufficient RFC to
perform work in the national economy, given his age, education and work
experience. See id. at 751.
On appeal, appellant raises three issues: (1) whether the ALJ erroneously
found that he did not meet or equal a listed impairment; (2) whether the ALJ
denied him due process in his handling of evidence from a post-hearing medical
advisor; and (3) whether the ALJ erroneously found that appellant did not have
a severe mental impairment. Appellant contends that he has an impairment which
meets or equals Listing 1.05C of 20 C.F.R. Pt. 404, Subpt. P, App. 1. This
listing requires a showing of a vertebrogenic disorder (e.g., herniated nucleus
puplosus, spinal stenosis):
with the following persisting for at least 3 months despite prescribed
therapy and expected to last 12 months. With both 1 and 2:
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1. Pain, muscle spasm, and significant limitation of motion in

the spine; and
2. Appropriate radicular distribution of significant motor loss
with muscle weakness and sensory reflex loss.
Id.
It is appellants burden to show that he meets these criteria.
See Nielson v.
Sullivan , 992 F.2d 1118, 1120 (10th Cir. 1993) (holding that claimant bears the
burden of proof through step four of the analysis). In order to assist him in
evaluating appellants claim that he met the Listing, the ALJ obtained a report
from Jack D. Spencer, M.D., a medical expert. Dr. Spencer opined that appellant
met Listing 1.05C from December 23, 1991 until August 13, 1992. He noted,
however, that he did not have any exhibit subsequent to August 13, 1992 from
which to determine whether appellant continued to meet the listing after that date.
Appellant argues that there was evidence pertaining to the time period
after August 13, 1992 which showed that he continued to meet the Listing for
a period of at least twelve months. This evidence consists of a medical report
dated July 5, 1994, completed by Dr. Richard F. Harper. In the report, Dr. Harper
notes that his examination of appellants back
reveals a hip flexion angle of 30 degrees and a true lumbar flexion
angle is 30 degrees. Extension is to 10 degrees and lateral bending is
to 15 degrees bilaterally. Deep tendon reflexes are less active on the
right than the left. There is decreased sensation over the left lateral
lower leg. There is weakness of the right hip and leg muscles.
Straight leg raising is to 30 degrees on the right.
-4-
Appellants App. Vol. II at 132.

Dr. Harper also stated that x-rays showed loss of the lordotic curve
compatible with musculo-ligamentous injury and that there was disc
derangement at L4 and L5.
Id. He noted that appellant complained of pain
at the beltline radiating into his buttocks and legs, and numbness in his legs.
These findings were equal or worse in severity to those Dr. Harper observed
on August 13, 1992 and reported in the last report reviewed by Dr. Spencer.
Appellant contends that this latter record, when coupled with Dr. Spencers
opinion, shows that his condition met the Listing criteria for severity for a period
lasting more than twelve months, lasting from December 23, 1991 until at least
July 5, 1994. The ALJ rejected Dr. Harpers July 5, 1994 report as evidence that
appellant continued to meet the Listing, however, because it was made after the
expiration of appellants insured status by a non-treating physician. The ALJ
acted within his prerogative in refusing to rely on the report as adequate evidence
that appellant met the Listing for the full twelve-month period.
Cf. 20 C.F.R.
Pt. 404, Subpt. P, App. 1. 1.00(B) (Appropriate abnormal physical findings

must be shown to persist on repeated examinations despite therapy for a
reasonable presumption to be made that severe impairment [under Listing 1.05C]
will last for a continuous period of 12 months);
see also Castellano v. Secretary
of Health & Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994) (holding
-5-
physicians opinion of disability at step three is not binding on Commissioner;

ultimate issue of disability is reserved to the Commissioner).
We note also that the ALJ arranged for an orthopedic examination of
appellant to supplement the record. Appellant refused to appear for that
consultative examination, without explanation. The regulations warn that [i]f
you are applying for benefits and do not have a good reason for failing or refusing
to take part in a consultative examination or test which we arrange for you to get
information we need to determine your disability or blindness, we may find that
you are not disabled or blind. 20 C.F.R. 404.1518. Having refused to appear
for a consultative examination scheduled for his benefit, appellant cannot
complain when the ALJ rejected his claim that he met a listing for lack of
evidence.
Appellant also contends that the ALJs failure to forward the July 5, 1994
report to Dr. Spencer for evaluation violated his right to due process. The ALJ
specifically offered appellants counsel the opportunity to hold a supplemental
hearing concerning Dr. Spencers report, and to cross-examine Dr. Spencer, and
she declined. The ALJs decision shows that he reviewed the July 5, 1994 report,
and that he stated his reasons for determining that the report was insufficient to
show that appellant met Listing 1.05C for a continuous period of twelve months.
-6-
Appellant fails to show that his right to due process in the administrative
proceedings was violated.
Finally, appellant claims that the ALJ failed to consider evidence that he
has a severe mental impairment which could affect his ability to work. After the
hearing, appellant submitted the results of a WAIS-R intelligence test which was
completed on October 14, 1996. The test showed that appellant has an IQ of 79,
with a performance IQ of 76 and a verbal IQ of 82. The ALJ stated [t]his
examination does not indicate that the claimant has a severe mental impairment.
In these circumstances, preparation of a Psychiatric Review Technique Form is
not required. Appellants App. Vol. II at 16 (emphasis added).
In Cockerham v. Sullivan , 895 F.2d 492, 496 (8th Cir. 1990), the Eighth
Circuit stated as follows: [a] claimant whose alleged impairment is an I.Q. of
70-79 inclusive has alleged a severe impairment
and may be considered disabled
after consideration of vocational factors (emphasis added). This circuit has

followed Cockerham in two unpublished decisions.
See Fries v. Chater ,
No. 96-2047, 1997 WL 31561, at **2 (10th Cir. Jan. 28, 1997);
States Dept of Health & Human Servs.
Turner v. United
, No. 94-6202, 1995 WL 339402, at **4
(10th Cir. June 7, 1995). We will now follow it in this case as well.
-7-
In light of Cockerham , the ALJ erred as a matter of law in deciding that

appellants low IQ scores (the lowest of which was only 76)
did not constitute
a severe impairment and did not warrant consideration in determining what work
he could do. For this reason, we must reverse the district courts decision in part
and remand for the limited purpose of having the ALJ conduct further analysis of
the effect of appellants IQ scores on his RFC and his ability to perform work in
the national economy.
The judgment of the United States District Court for the Western District
of Oklahoma is AFFIRMED in part, REVERSED in part, and REMANDED
for further proceedings in accordance with this order and judgment.
Entered for the Court
John C. Porfilio
Senior Circuit Judge
The Listings related to IQ require the Commissioner to look at the

lowest
valid IQ score. See Hinkle v. Apfel , 132 F.3d 1349, 1351 (10th Cir. 1997). The
same procedure is followed when assessing severity of the impairment.
See
Cockerham , 895 F.2d at 495 n.5.
1
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

FOR THE TENTH CIRCUIT

ORDER AND JUDGMENT

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff-appellant Harmon Callins appeals from an order of the district

is such relevant evidence as a reasonable mind might accept as adequate to

1. Pain, muscle spasm, and significant limitation of motion in

Appellants App. Vol. II at 132.

Id. He noted that appellant complained of pain

Pt. 404, Subpt. P, App. 1. 1.00(B) (Appropriate abnormal physical findings

see also Castellano v. Secretary

physicians opinion of disability at step three is not binding on Commissioner;

and may be considered disabled

after consideration of vocational factors (emphasis added). This circuit has

See Fries v. Chater ,

, No. 94-6202, 1995 WL 339402, at **4

In light of Cockerham , the ALJ erred as a matter of law in deciding that

did not constitute

Entered for the Court

The Listings related to IQ require the Commissioner to look at the

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