Channell v Colvin, F.3d___ No. 13-2533 (C.A.8 Ark. June 25, 2014)

U.S. Court of Appeals, Per Curiam

A 24 year old claimant with high school education and no relevant past work history alleged disability based on intellectual disability.  Initially and on appeal after the hearing, the SSA denied her application when the ALJ held that she could perform jobs as a poultry hanger, a machine feeder, or a maid/housekeeper.

A state agency medical consultant, who completed a mental residual functional capacity assessment based on his review of the medical records only, opined that the claimant would be able to perform work where “interpersonal contact would be incidental to work performed; complexity of tasks would be learned and performed by rote; few variables and little judgment would exist; and supervision required would be simple, direct, and concrete.” 

The medical record contained the results of an IQ test (Wechsler Intelligence Scale) administered when the clamant was 13 years old.  Her scores at the time were a verbal IQ of 58, a performance IQ of 63, and a full scale IQ of 56. At the age of 20, the claimant underwent a psychological evaluation where she appeared “sluggish and slow to respond,… gave vague answers…, and… exhibited flat effect.” The IQ test showed a verbal score of 67, a performance score of 59, and a full scale score of 61. The psychologist administering the test noted that the claimant did not exhibit signs of exaggeration or malingering but showed poor motivation.  The claimant’s overall intellectual functioning was within a mildly deficient range.

At the hearing, the ALJ discredited the claimant’s performance score of 59 because her “daily activities did not indicate she was completely unable to work.” The ALJ determined that the claimant had no exertional limitations and that she had a residual functional capacity to perform unskilled work.

The ALJ’s written decision indicated that the ALJ scheduled the claimant for another IQ testing to be followed by a Computerized Assessment of Response Bias (CARB) to assess her for malingering or exaggeration. The claimant failed to attend either test and the ALJ used her noncompliance as an additional factor to deny benefits.

Interestingly, the Appeals Court does not comment on the broad vocational conclusions rendered by a medical DDS consultant or on the fact that CARB (similar to SVT) arguably should not be used by DDS to determine malingering. DI 22510.006 (D) does not list CARB as one of the tests that the SSA will not purchase but the POMS section instructs that “tests cannot prove whether a claimant is credible or malingering because there is no test that, when passed or failed, conclusively determines the presence of inaccurate self-reporting.” 

Instead, the court finds no evidence in the record that the claimant received a proper notice about the tests scheduled by the ALJ or that the claimant was given an opportunity to explain her failure to appear for testing.

The Appeals Court held that the ALJ failed to develop the record fully and rendered his decision based on incomplete evidence. The Court directed the ALJ to reschedule the claimant for another IQ test and any other appropriate testing before rendering the final decision on her application.

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