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Callins v. Apfel, 10th Cir. (2000)
Callins v. Apfel, 10th Cir. (2000)
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.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
This order and judgment is not binding precedent, except under the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.
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.
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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.
of Health & Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994) (holding
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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
No. 96-2047, 1997 WL 31561, at **2 (10th Cir. Jan. 28, 1997);
States Dept of Health & Human Servs.
Turner v. United
(10th Cir. June 7, 1995). We will now follow it in this case as well.
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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.
John C. Porfilio
Senior Circuit Judge
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