Johnnie Hardman v. Carolyn Colvin, Acting Cmsnr
820 F.3d 142
5th Cir.2016Background
- Hardman applied for SSI in April 2010 alleging multiple physical conditions and testified at hearing that he had little/no education and could not read, write, or do math.
- The ALJ found Hardman not credible as to complete illiteracy, instead adopting a ninth-grade education and an RFC for limited light work; concluded jobs existed in significant numbers.
- Vocational expert testified that with Hardman’s alleged illiteracy and physical limits only a few sedentary assembly jobs would be available, but with a ninth-grade level several light office jobs were available.
- Hardman submitted a February 2012 psychological report to the Appeals Council diagnosing "moderate mental retardation" and very low WAIS-IV scores; Appeals Council considered but denied review.
- Hardman later obtained (Feb. 2014) a state DDS award for intellectual disability; he sought review in district court and this Court and moved to remand under sentence six of 42 U.S.C. § 405(g).
- The district court and this Court affirmed the Commissioner: (1) no duty to order post-hearing IQ testing, (2) ALJ hypothetical sufficiently incorporated limitations, (3) Appeals Council permissibly found ALJ decision supported by substantial evidence despite new report, and (4) subsequent DDS award and remand request were forfeited or irrelevant to the record before the ALJ.
Issues
| Issue | Hardman’s Argument | Commissioner’s Argument | Held |
|---|---|---|---|
| Whether ALJ erred by not ordering post-hearing intellectual testing | Testimony of illiteracy raised suspicion of intellectual disability requiring further development | No clear indication of mental impairment in record; isolated comments insufficient to trigger testing duty | No error; isolated statements + medical record did not require testing; ALJ’s credibility finding supported by substantial evidence |
| Whether ALJ’s hypothetical to vocational expert was defective | Hypothetical failed to expressly include ALJ-recognized severe impairments | Hypothetical reasonably incorporated the ALJ’s RFC and limitations; claimant had chance to correct it | Not defective; hypothetical reasonably incorporated limitations and claimant had opportunity to object |
| Whether Appeals Council erred by rejecting Dr. Whiteman’s 2012 report | Report was new, material, and showed moderate intellectual disability, undermining ALJ decision | Appeals Council considered report; report contradicted by other medical and lay evidence and showed doubtful credibility | No error; even with new evidence substantial evidence supports ALJ’s denial so Appeals Council permissibly denied review |
| Whether subsequent 2014 DDS award and motion to remand warrant reversal/remand | Later DDS finding of intellectual disability and motion for sentence-six remand require remand | Subsequent determination is not proof ALJ erred; Hardman forfeited sentence-six remand by not raising it in district court | Denied/forfeited; subsequent DDS award not reviewable as part of the ALJ record and remand motion forfeited |
Key Cases Cited
- Morgan v. Colvin, 803 F.3d 773 (5th Cir. 2015) (standard of review for Commissioner decisions)
- Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000) (definition of substantial evidence)
- Kane v. Heckler, 731 F.2d 1216 (5th Cir. 1984) (ALJ duty to develop full and fair record)
- Leggett v. Chater, 67 F.3d 558 (5th Cir. 1995) (ALJ duty does not extend to disabilities not alleged or not clearly indicated)
- Pierre v. Sullivan, 884 F.2d 799 (5th Cir. 1989) (isolated comments about low intelligence do not require IQ testing)
- Sun v. Colvin, 793 F.3d 502 (5th Cir. 2015) (Appeals Council consideration of new evidence and standard for review)
- Jones v. Bowen, 829 F.2d 524 (5th Cir. 1987) (claimant bears burden to prove impairment; consultative exam required only when necessary)
- Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994) (hypothetical to vocational expert must reasonably incorporate claimant’s disabilities)