171, 177). There is no evidence in the record, that either of
these conditions limit plaintiffs functional ability do to basic
work activities. Instead, the record reveals that Dr. Teano found
plaintiff's upper extremity sensation to be intact and her
strength to be symmetric bilaterally. (Tr. 131). The only
treatment plaintiff received for her back was a prescription for
Naprosyn, a non-narcotic pain reliever, and some physical therapy
that plaintiff failed to attend after two weeks. There is no
evidence in the record that any physician has ever told plaintiff
to restrict any of her activities because of her alleged back
impairment. Thus, because plaintiff has not proven that she has
an impairment so severe as to "significantly limit [her] physical
or mental ability to do basic work activities,"
20 C.F.R. § 404.1521(a), 416.921(a), the A.L.J.'s finding of not disabled is
supported by substantial evidence.
C. Hypothetical Presented To The Vocational Expert
Plaintiff contends that the A.L.J. relied on a hypothetical
question that did not reflect all impairments supported by the
record. We disagree.
It is common at administrative hearings for the A.L.J. to
present a vocational expert with a hypothetical to determine
whether the plaintiff is capable of performing substantial
gainful work activity. The A.L.J. will tailor the hypothetical to
simulate the plaintiff's own limitations and abilities, and then
ask whether a suitable job exists for the plaintiff in the
national economy. Podedworny v. Harris, 745 F.2d 210, 218 (3d
Cir. 1984). In order for the answer to be considered substantial
evidence, all of the plaintiff's impairments supported in the
record must be reflected in the hypothetical. Chrupcala v.
Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). The A.L.J.
presented the VE with the following hypothetical: (1) a person
forty-eight years old, (2) literate with at least a ninth grade
education in special education classes, (3) no work history, (4)
could perform a simple job requiring a one or two step operation
of simple repetitive tasks, and which did not deal with the
public and was low stress. (Tr. 57).*fn22 Plaintiff asserts the
A.L.J.'s hypothetical failed to take into consideration (1) the
anxiety and depression limitations enumerated by Dr. Soh and Dr.
Fowler, and (2) plaintiff's degenerative disc disease in her
lower back. Pl.'s Br. at 12. Because the A.L.J. properly
evaluated each of plaintiff's alleged impairments, the
hypothetical posed to the vocational expert was not deficient and
the expert's answer to it can be considered substantial
D. Listing 12.05(C): Mental Retardation
Plaintiff contends that she meets or equals*fn24 the
requirements of Listing
12.05(C), entitled "Mental Retardation and Autism." The third
step of the five step sequential process set forth in
20 C.F.R. § 416.920 is whether an applicant's "severe impairment(s) meets or
equals the severity of any impairment listed" in the first
appendix to 20 C.F.R. Part 4, subpt. P, 20 C.F.R. § 416.920(d).
If an impairment does meet or equal the severity of a listed
impairment, the claimant is approved for SSI. One of the listed
impairments is mental retardation.
An applicant claiming disability due to mental retardation must
show "a significantly subaverage general intellectual functioning
with deficits in adaptive behavior initially manifested during
the developmental period (before age 22)." 20 C.F.R. pt. 404,
subpt. P, app.1, § 12.05. The regulation further notes that "the
required level of severity for this disorder is met when the
requirements in [12.05 subheadings] A, B, C, or D are satisfied."
Id. The subheading relevant here, 12.05(c), requires showing "A
valid verbal, performance, or full scale I.Q. of 60 through 70
and a physical or other mental impairment imposing additional and
significant work-related limitation of function." 20 C.F.R. Part
404, Subpart P, Appendix 1, Listing 12.05(c) ("Listing
12.05(c)"). In sum, then, the regulations require claimant to
prove (1) an I.Q. between 60 and 70; and (2) a physical or other
mental impairment imposing additional and significant
work-related limitations of function. It is also possible that
plaintiff must prove manifestation of the retardation prior to
the claimant's twenty second birthday.
The record indicates that Peter J. McCusker, Ed.D.,
administered the Wechsler Adult Intelligence Scale-Revised and
reported that the plaintiff had a full scale I.Q. of 72, a verbal
I.Q. of 73 and a performance I.Q. of 72. The regulations direct
that in determining whether a disability exists, one should use
the lowest of these scores, in this case plaintiff's performance
I.Q. of 72, in conjunction with § 12.05. 20 C.F.R. Part 404,
Subpart P, Appendix 1, Section 12.00(D) (enumerating the
documentation required for demonstrating the presence of a mental
Although the parties do not dispute that plaintiff has a
reported test score of 72, they dispute whether the I.Q. tests
have a margin of error of plus or minus five points.*fn25 Given
such a margin of error, plaintiff's I.Q.-tested at 72-would be
considered to be in actuality somewhere between 67 to 77 and she
would meet the score criteria of § 12.05.
The A.L.J., in this case, made a specific finding as to whether
plaintiff's I.Q. fell within the range of Listing 12.05(c) and
found that application of the five point margin of error was
Regarding the claimant's I.Q. test, while Dr.
McCusker has indicated that the claimant probably has
a greater capability for higher scores, based upon
her educational achievements (a tenth grade education
purportedly in special education although this is not
substantiated by the records) and giving the claimant
the benefit of doubt, I find that the claimant's I.Q.
scores would probably still be in the 70's borderline
intelligence range. However, I also caution that Dr.
Fowler noted that the claimant's fund of information
and intelligence level appeared grossly average. This
finding of Dr. Fowler would corroborate Dr.
McCusker's opinion as to the claimant's inadequate
presentation. (Tr. 21).
The regulations do not explicitly mandate the consideration of
standard errors of measurement in determining whether an
individual satisfies a limitation criteria. Nevertheless, one
court in this district held that I.Q. test scores are subject to
such a margin of error and determined that the lowest score of
the range should be used in determining whether a mental disorder
exists. Hampton v. Apfel, 1999 WL 46614, at *2 (E.D.Pa. January
6, 1999) (holding that the plaintiff's "I.Q. of 72, which falls
somewhere between 67 and 77, should be read as 67 for the purpose
of determining whether a mental disorder exists"). In so
concluding, the court reasoned that "it is reasonable to apply
the same underlying rationale [as in 12.00(D)]-error on the side
of the claimant-in the context of testing error as well." In
support of its decision, the Court cited the Diagnostic and
Statistical Manual of Mental Disorders, 39, 47 (4th ed. 1994),
the Program Operation Manual System § DI 24515.056D.2,*fn26 and
a Western District decision, Halsted v. Shalala, 862 F. Supp. 86
(W.D.Pa. 1994). Other district courts have split over this issue.
See Halsted v. Shalala, 862 F. Supp. 86, 89-90 (W.D.Pa. 1994)
(finding that an I.Q. of 71 was within the range of § 12.05(C));
Bendt v. Chater, 940 F. Supp. 1427, 1431 (S.D.Iowa) (I.Q. of 75
not within range of § 12.05(C)); Young v. Shalala, 1995 WL
904826 (W.D.Mo. May 31, 1995) (finding that an IQ of 71 was
within the range of 12.05(C)); Lawson v. Apfel, 46 F. Supp.2d 941,
946-47 (W.D.Mo. 1998) (finding that I.Q. of 71 was not
within range of § 12.05(C)); see also Cockerham v. Sullivan,
895 F.2d 492, 495 (8th Cir. 1990) (holding that an A.L.J.'s
finding that a claimant's I.Q. score of 71 was not within the
range of 60-69 was supported by substantial evidence on the
record as a whole); Anderson v. Sullivan, 925 F.2d 220, 222
(7th Cir. 1991) (standard error range should not be factored into
Obviously, this Court is not bound by any of these decisions.
However, we find the reasoning in Bendt, and its reliance on
Cockerham v. Sullivan, 895 F.2d 492, 495 (8th Cir. 1990), to be
most persuasive. Ellison v. Sullivan, 929 F.2d 534 (10th Cir.
1990) (holding same). In Bendt, the district court noted that
"[i]ncorporating a 5 point measurement error into a claimant's
I.Q. test results would effectively expand the requisite I.Q.
under listing 12.05(C) from test scores of 60 to 70 to test
scores of 60 to 75." Bendt, 940 F. Supp. at 1431. The Court
concluded that this would alter the range of I.Q.'s which satisfy
the Listing of Impairments for Mental Retardation and Autism in
contradiction of the federal regulations interpreting the Act.
Consequently, this court finds that the A.L.J.'s finding that
Plaintiff did not qualify under § 12.05(c) is supported by
substantial evidence on the record as a whole.
Moreover, substantial evidence supports that A.L.J.'s
conclusion that plaintiff's score does not meet the first
requirement of 12.05(c). The question of whether a claimant meets
or equals a listed impairment is strictly a medical
determination. 20 C.F.R. § 404.1526(b), 416.926(b). In Dr.
McCusker's opinion plaintiff "quite likely is more capable than
her scores would suggest." (Tr. 197, 201). Dr. McCusker wrote in
When tested, this claimant was lighthearted about and
emphasizing her deficits. She apologized and
rationalized her successes. She had quite a few "near
misses." On several occasions she ruined correct
responses. For all of these reasons, it is my
clinical impression that she was either deliberately
or inadvertently presenting herself as less capable
than she is. (Tr. 197, 201).
In addition, the reliability of plaintiff's scores is supported
by plaintiff's educational background. Also note that Dr. Fowler
documented that the claimant's
fund of information and intelligence level appeared grossly
average. Again this finding of Dr. Fowler corroborates Dr.
McCusker's opinion as to the claimant's inadequate presentation.
In accordance with the plain language of the regulations and in
view of the medical opinion evidence contained in the record that
supports the validity and accuracy of plaintiff's I.Q. scores,
the A.L.J.'s decision that plaintiff's scores do not meet or
equal Listing 12.05(c) is supported by substantial evidence.
We also note that plaintiff cannot meet or equal another
requirement of Listing 12.05. In this regard, we first determine
whether plaintiff was required to show that her mental
retardation manifested itself prior to her twenty second
birthday, and, if so, whether she made such a showing. In
Williams v. Sullivan, 970 F.2d 1178, 1185 (3d Cir. 1992), the
Third Circuit held that claimants have the burden of producing
evidence that their deficient intellectual functioning initially
manifested itself during the developmental period (prior to their
twenty second birthday) in order to meet Listing 12.05 and that a
post-developmental period I.Q. score is insufficient to establish
that requirement. See also Clark v. Apfel, 141 F.3d 1253 (8th
Cir. 1998) (citing Williams). However, a more recent decision
in this district concluded, without citing the Third Circuit
decision in Williams, that claimants are entitled to a
rebuttable presumption of manifestation during the developmental
period upon producing a low I.Q. score. Hampton v. Apfel, 1999
WL 46614 (E.D.Pa. January 6, 1999) (holding that "a low [post
developmental period] I.Q. test raises a presumption of
manifestation during the developmental period"). That presumption
is rebutted by evidence of a deterioration of mental functioning
following that period. Id. This court is bound by the Third
Circuit's decision. We merely note that, because plaintiff has
only submitted her post-developmental period I.Q. test as
evidence that her deficient intellectual functioning existed
prior to her twenty-second birthday and has not provided any
other evidence such as school records, she would not meet or
equal Listing 12.05 under Williams.
Therefore, I make the following:
AND NOW this __ day of July, 1999 it is RESPECTFULLY
RECOMMENDED that plaintiff's Motion for Summary Judgment be
denied and the defendant's Motion for Summary Judgment be
July 27, 1999.
AND NOW this Day of, 1999, upon careful consideration of the
Report and Recommendation filed by United States Magistrate Judge
Peter B. Scuderi, and upon independent review of the Cross
Motions for Summary Judgment filed by the parties, it is hereby
1. The Report and Recommendation is APPROVED and
2. Plaintiff's Motion for Summary Judgment is DENIED.