Case Information
*1 Before: MARTIN, BOGGS, and WHITE, Circuit Judges.
BOGGS, Circuit Judge. Carter Lee Turner (Turner) appeals a district court order affirming an administrative law judge’s (ALJ’s) denial of Turner’s application for disability benefits and Supplemental Security Income. Turner raises three claims: (1) the ALJ’s determination that Turner did not meet listing 12.05C was not supported by substantial evidence; (2) the ALJ improperly rejected the opinion of a treating рhysician without good reason; and (3) the ALJ’s questions to the vocational expert (VE) did not accurately reflect the limitations imposed by Turner’s impairments. Because we conclude that none of these claims have merit, we affirm the judgment of the district court.
I
In early 2003, Turner suffered an on-the-job injury while working in a coal mine. Turner sought treatment from his primary carе physician, Dr. Sharon Colton. Dr. Colton referred Turner to Kentucky Physical Therapy for treatment. Dr. Colton also had Turner undergo an MRI, which revealed that Turner suffered from a herniated disc, a bulging disc, and degenerative disc disease.
Upon receiving the results of Turner’s MRI, Dr. Colton referred Turner to Dr. Bean, a neurologist, for treatment. Dr. Bean opined that physical thеrapy remained the best approach to Turner’s problems, and that surgery would have little benefit. He recommended that Turner continue physical therapy, and eventually attempted to have Turner undergo “full work hardening.”
By December 2003, both Dr. Bean and Dr. Colton concluded that Turner had probably reached maximum medical improvement. They decided that Turner should undergo a functional capacity examination to determine his current work capacities. Turner underwent a two-day functional capacity examination administered by Kentucky Physical Therapy. The examination revealed that Turner could sit for up to eight hours per work day (with thirty-minute stretch periods), stand for two-thirds of an eight-hour work day, аnd walk or stair climb for a full eight-hour work day, albeit with a break every twenty minutes. The examination also revealed that Turner could lift thirty pounds infrequently, twenty pounds occasionally (up to one-third of an eight-hour work day), and ten pounds frequently.
Dr. Bean reviewed Kentucky Physical Therapy’s report and concluded that the restrictions expressed in the report wеre permanent. Dr. Colton thereafter continued to manage Turner’s pain using various medications. In April 2005, Dr. Colton referred Turner to Dr. Ballard Wright for pain management. Dr. Ballard Wright’s colleague, Dr. Peter Wright (Dr. Wright), treated Turner for over a year. Dr. Wright sought to control Turner’s pain primarily through the use of various medications.
Beginning in 2004, Turner also sought Social Security disability benefits and Supplemental Security Income. During the application process, Turner underwent consultative examinations by various physicians, including Dr. Bobby J. Kidd, Dr. Christine Muckenhausen, and Dr. Charles Hieronymus. These examinations revealed, among other things, that Turner was blind in his right eye, suffered coal workers’ pneumoconiosis and small airway disease, and had unilateral hearing loss, сhronic tinnitus, and impaired speech discrimination.
After an initial review, the Social Security Administration denied Turner’s application for benefits. Turner then sought a hearing before an ALJ, which was held on February 7, 2006. Following that hearing, the ALJ issued a decision denying Turner benefits. Shortly thereafter, Turner filed a request for review, which the Appeals Council denied. Turner then filed a civil action against the Commissioner of Social Security in the United States District Court for the Eastern District of Kentucky. Before the district court could rule on the merits, the Commissioner filed a request for remand, which the district court granted.
On remand, the ALJ requested that Turner undergo a consultative examination, which was performed by Dr. Daniel S. Stewart. Based upon a review of Turner’s medical records, Dr. Stewart completed a functional capacity evaluation form on which he listed various significant restrictions on Turner’s functioning.
The ALJ held a second hearing on January 24, 2008. At the hearing, the ALJ questioned a VE regarding jobs available to a hypothetical individual who exhibited certain of Turner’s alleged limitations and attributes. In response to the ALJ’s questioning, the VE indicated that jobs would be available to such an individual and provided specific examples.
After the hearing, Turner submitted a psychological evaluation performed by Reba Moore, a Licensed Psychological Practitioner. This evaluation indicated that Turner had an IQ score of 67, read at a second-grade level, and performed arithmetic at a fourth-grade level. Ms. Moore concluded that Turner’s IQ score fell “within the range of Mild Mental Retardation” and “was deemed a valid and reliable representation of his current intellectual functioning.”
On March 7, 2008, the ALJ issued a decision again denying Turner disability benefits. The ALJ concluded that Turner’s impairments did not meet or equal any оf the impairments enumerated in the Listing of Impairments, and that Turner remained capable of performing jobs that existed in significant numbers in the national economy. The ALJ therefore concluded that Turner was not disabled within the meaning of the Social Security Act. Turner filed a timely complaint in the United States District Court for the Eastern District of Kentucky seeking review of the ALJ’s decision. The district court affirmed the ALJ’s decision. Turner timely appealed.
II
On appeal, Turner attacks the procedural adequacy and evidentiary basis of the ALJ’s
decision. Under the Social Security Act, the Commissioner decides whether a claimant is disabled
within the meaning of the Act.
Rogers v. Comm’r of Soc. Sec.
,
This court reviews the Commissioner’s decision only to determine whether it was supported
by substantial evidence and made pursuant to proper legal standards.
Rogers v. Comm’r of Soc. Sec.
,
A
Turner first challenges the ALJ’s failure to find him disabled under listing 12.05C. At the
third step in the disability evaluation process, a claimant will be found disabled if his impairment
meets or equals one of the listings in the Listing of Impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). Listing 12.05 describes circumstances in which mental retardation is severe
enough to preclude gainful activity.
See id.
Pt. 404, Subpt. P, App. 1 §12.05. To meet the
requirements of listing 12.05C, a claimant must show: (1) the claimant experiences significantly
subaverage general intellectual functioning with deficits in adaptive functioning that initially
manifested during the developmental period (i.e., before the age of twenty-two); (2) the claimant has
a verbal, performance, or full scale IQ of 60 through 70; and (3) the claimant suffers from a physical
or other mental impairment imposing an additional and significant work-related limitation on
function.
See ibid.
;
id.
§ 12.00(A);
West v. Comm’r Soc. Sec. Admin.
,
Turner attacks the ALJ’s finding on two grounds. First, Turner asserts that Ms. Moore’s diagnosis of mild mental retardation was alone sufficient to show that appellant suffered functional deficits during his developmental period. Second, Turner argues that his academic and work history serve as independent evidence of mental retardation dating back to his developmental period.
Neither of these arguments has any merit. First, Turner’s present IQ scores do not serve as evidence that he suffered subaverage intellectual functioning or deficits in his adaptive functioning during his developmental period. A claimant must produce evidence beyond his present IQ scores [1]
to show that he exhibited deficits during his developmental period.
See Foster
,
West
,
Second, the evidence regarding Turner’s history and academic record could lead a reasonable person to conclude that Turner did not manifest significantly subaverage intellectual functioning or adaptive deficits during his developmental pеriod. Although Ms. Moore found no evidence that Turner ever functioned higher than he does now, two psychologists who reviewed Turner’s records found no evidence of below-average intellectual functioning or adaptive deficits. Turner was not enrolled in any special education classes in school, and he neither failed a class nor was held back until the ninth grade. Even in the ninth grade, Turner received above-average grades in science and [3]
math. Turner’s work history, though modest, is not inconsistent with a finding that he did not
[4]
exhibit significantly subaverage intellectual functioning. Nor do Turner’s academic record and work
experience evidence adaptive deficits—that is, deficits in social skills, communication, and dаily
present IQ scores demonstrate significantly subaverage intelligence and adaptive deficits during the
developmental period. The
McPeek
decision applied an earlier version of the Listing of
Impairments, which has since been amended to clarify that a claimant must establish
both
that he
currently has an IQ of 60 through 70
and
that he exhibited subaverage mental functioning and
adaptive deficits during his developmental period.
See
65 Fed. Reg. 50746, 50776 (August 21,
2000);
see also Foster
,
[2] A claimant need not, however, produce an IQ score from before the age of 22. West , 240
F. App’x at 698.
[3] Turner dropped out of high school during his second attempt at the ninth grade. [4] Turner worked as a truck driver, coal miner, and light mechanic.
living skills,
see West
,
B
Turner next challenges the weight that the ALJ assigned to an opinion submitted by Dr.
Wright, one of Turner’s treating physicians. Under Social Sеcurity regulations, when a treating
physician submits a medical opinion, the ALJ must either defer to the opinion or provide “good
reason” for refusing to defer to the opinion.
See
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2);
see
also Wilson v. Comm’r of Soc. Sec.
,
In this case, Dr. Wright provided a “summary statement” in which he stated that Turner was “unable to work” and was not “currently capable of a full-time 8-hour workload.” The ALJ considered the statement and concluded that it was an opinion on an issue reserved to the Commissioner—whether Turner could work. The ALJ also noted that the statement indicated that “with voсational retraining [Turner] might be employable in the future.”
Turner argues that the ALJ violated agency regulations when he failed to treat Dr. Wright’s statement that Turner could not work “a full-time 8-hour workload” as a medical opinion. Turner further asserts that the ALJ’s rejection of Dr. Wright’s opinion was not supported by substantial evidence, and that the ALJ failed to provide good reason for the rejection.
The ALJ’s decision did not violate agency regulations. Dr. Wright’s statement that Turner was not “currently capable of a full-time 8-hour workload” was simply an alternate way of restating his opinion that Turner was “unable to work.” It was thus an opinion on an issue reserved to the Commissioner and was not entitled to any deference. Further, the ALJ’s decision adequately explained the consideration given to Dr. Wright’s opinion by noting that the opinion spoke to an issue reserved to the Commissioner and that the opinion ultimately expressed uncertainty as to Turner’s inability to work.
The ALJ’s rejection of Dr. Wright’s disability opinion was also supported by substantial evidence. Dr. Wright’s statement itself indicated that, with vocational training, Turnеr might be able to work. Other treating sources, including Kentucky Physical Therapy and Drs. Bean and Colton, did not conclude that Turner was incapable of light work. Although Turner argues that these opinions were outdated, Dr. Wright’s subsequent treatment notes indicated that medications effectively controlled Turner’s pain, and reports from late 2007 indicated that Turner was caрable of “weed eating in his yard” and vacuuming his house. Thus, substantial evidence did support the ALJ’s decision to reject Dr. Wright’s disability opinion.
C
Turner’s final attack on the ALJ’s decision focuses on the hypothetical questions that the ALJ
directed to the VE. At the fifth step in the disability evaluation process, the Commissioner bears the
burden of proving that there are a significant number оf jobs in the economy that accommodate the
claimant’s residual functional capacity and vocational profile.
Jones
,
In this case, the ALJ relied on the VE’s response to two hypothetical questions to satisfy the Commissioner’s burden. In the first question, the ALJ asked if employment would be available to a hypothetical individual who was only “capable of pеrforming in a range of light exertion” and had numerous other limitations, including a restricted ability to stoop, bend, crouch, or crawl. In the second question, the ALJ added two further limitations to those listed in the first question: the individual could stand no more than thirty minutes uninterrupted, and the individual could sit no more than forty-five minutes uninterrupted. In response to both questions, the VE indicated that jobs would bе available and provided specific examples.
Turner finds two faults with these questions. First, Turner asserts that the ALJ intended to rely on the opinion of Dr. Stewart in determining the claimant’s functional capacity, but failed to obtain testimony consistent with that opinion. Second, Turner suggests that, even if the ALJ instead intended to rely on the functional capacity evaluation performed by Kentucky Physical Therapy, the questions to the VE did not accurately reflect the limitations assessed in that evaluation.
Turner’s arguments fail on both counts. First, nothing in the record suggests that the ALJ intended to rely on the functional capacity evaluation form completed by Dr. Stewart. In fact, at the hearing, the ALJ specifically indicated that his hypothеtical questions were not based on Dr. Stewart’s assessment. Likewise, the ALJ’s decision expressly accepted the “residual functional capacity findings of Kentucky Physical Therapy.” This was appropriate, as Dr. Stewart was merely a consultative examiner, while Kentucky Physical Therapy was a treating source. See 20 C.F.R. § 404.1527(d)(2) (indicating that a treating source’s oрinion is entitled to deference); id. § 416.627(d)(2) (same).
Second, the ALJ’s questions to the VE did incorporate the limitations set forth in the
functional capacity evaluation form completed by Kentucky Physical Therapy. The ALJ’s questions
included restrictions on Turner’s ability to stand or sit uninterrupted that were consistent with
Kentucky Physical Therapy’s findings. Likewise, when the ALJ asked the VE to assume that Turner
could only perform work in the “range of light exertion,” he conveyed specific exertional limitations
that mirrored those found by Kentucky Physical Therapy: the Dictionary of Occupational
Titles—published by the Department of Labor and followed by the VE in this case—defines “light
work” to include only work that involves “[e]xerting up to 20 pounds of force occasionally (. . . up
to 1/3 of the time) and/or up to 10 pounds of force frequently (. . . from 1/3 to 2/3 of the time).”
See
Dictionary of Occupational Titles 342.667-010 (4th Ed. 1991),
available at
III
For the reasons given above, the judgment of the district court is AFFIRMED.
Notes
[1] Turner cites
McPeek v. Sec’y of Health & Human Servs.
, No. 93-5204,