1The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3901

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Tasha A. McGee, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Southern

Michael J. Astrue, * District of Iowa

Commissioner of Social Security, *

* [UNPUBLISHED]

Appellant. *

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Submitted: June 13, 2008 

 Filed: September 5, 2008

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Before SMITH and GRUENDER, Circuit Judges, and ROSENBAUM, District

Judge.1

________

PER CURIAM.
2The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

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Tasha A. McGee seeks disability benefits. The district court agreed with the

Commissioner of Social Security’s decision finding her ineligible. We affirm the

decision of the district court.2

I. Background

Tasha McGee was born on September 8, 1974. She attended regular classes

in school through tenth grade, before dropping out to have her first child. She later

earned her general equivalency diploma (“GED”). She and her family live in

Davenport, Iowa.

Ms. McGee has experienced intermittent bouts of depression, mood swings,

anxiety, and panic attacks throughout her life. These included two suicide attempts

while in her early twenties. She received mental health treatment in 1995 at age 21.

Thereafter, she required emergency room services related to panic attacks. She

received anti-anxiety medications, including Paxil and Xanax.

Ms. McGee worked sporadically at a series of unskilled jobs between 1994 and

2002. None lasted longer than a few months. The most she earned in a single year was

$2,761.35. She last worked on April 2, 2002. On April 29, 2002, she filed for

supplemental security income (“SSI”) disability benefits, claiming depression and

anxiety kept her from working.

Ms. McGee’s first SSI application claimed she could not work due to “sudden

rapid heartbeats, blackouts, hyperventilation, depression, anxiety attacks, mood swings,

headaches, chest pain.” The accompanying personal questionnaire she submitted in

support gave detailed information concerning her mental health and its effect on her
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family, along with a work history and history of physical discomfort. The initial

examiner interviewed Ms. McGee by telephone in May, 2002, and found she had no

difficulty in reading, understanding, or coherency. 

Following this interview, both Ms. McGee and her husband completed additional

questionnaires concerning Ms. McGee’s daily activities. They revealed her ability to

drive, clean house, help care for their children, including giving baths and getting them

dressed, and cook two meals a day. Ms. McGee stated she tried to read an hour every

day, including newspapers, magazines, and the Bible. She responded to the question,

“Do you understand and remember what you read?” by saying, “Sometimes I

remember and then somedays [sic] I have problems focusing on it.” Ms. McGee could

pay bills and manage money. Both Ms. McGee and her husband claimed her

irritability, panic attacks, and mood swings interfered with her ability to socialize, run

errands, do household work, and hold a job.

In July, 2002, as part of her application for benefits, Ms. McGee was evaluated

by Michael Stempniak, Ph.D., a clinical psychologist. Mr. Stempniak noted her

depression and anxiety. He administered tests which showed “her immediate memory

was in the low average range,” but “with more effort, her concentration tends to

improve.” She could identify recent presidents as “Bush, Clinton, Reagan,” but

identified five large cities as “California, Florida, New Mexico, Chicago, Texas.” She

recalled two famous people as “Clint Eastwood and Bill Cosby,” and correctly

answered questions involving addition and subtraction, although she did not do well in

multiplication. Mr. Stempniak diagnosed panic disorder with agoraphobia, and major

depressive disorder. His diagnosis was similar to that rendered by Rhonda Lovell,

Ph.D., who did a psychiatric review of Ms. McGee in August, 2002.

Ms. McGee’s application was denied in August, 2002, and reconsidered in

October of that year. She said her symptoms had not improved, and she submitted a

supplemental report on her daily activities. To the question “What do you do for
3See 20 C.F.R. Part 404, subpart P, appendix1, Listings 12.04 and 12.06.

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relaxation or recreation?” she responded, “read a very good magazine or most of the

time sleep.” When asked “How often?” she responded, “everyday [sic].” A second

psychiatric review was included in the reconsideration. This was performed by Philip

R. Laughlin, Ph.D., on December 26, 2002. His review was consistent with Ms.

McGee’s prior diagnoses of major depressive and panic disorders.

Ms. McGee’s application was denied again in January, 2003. In August, 2003,

she requested a hearing before an Administrative Law Judge (“ALJ”). Prior to the

hearing, Ms. McGee again supplemented the record with updated medical information.

The new information showed that, in 2003 and 2004, Ms. McGee was treated at the

Vera French Community Mental Health Center in Davenport, Iowa. She was

prescribed Depakote, Klonopin, Zoloft, Lexapro, Seroquel, Inderal and Xanax. She

also had therapy every three weeks. Her progress notes reflect continuing mental

health issues. 

The ALJ held a hearing in January, 2005, at which no testimony was taken. Ms.

McGee then supplemented the record with medical documentation, including a residual

functional assessment by Dr. Ciaccio, a psychiatrist who treated her since 2003. Dr.

Ciaccio noted depression and anxiety, and its effect on her ability to work.

A second hearing was held in August, 2005, when the ALJ took testimony. Ms.

McGee described her experience with anxiety, depression, and panic attacks. She

discussed raising her five children and the family’s activities. Charlene Bell, an

independent medical expert, concluded Ms. McGee met several presumptively

disabling criteria for depression and panic disorder3

 “in the moderate sense.” Marian

Jacobs, a vocational expert, opined that Ms. McGee’s impairment “would preclude her

past relevant work as well as competitive employment.” 
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After this hearing, the ALJ directed Ms. McGee to undergo testing by

psychologist Stanley Smith. In September, 2005, Mr. Smith administered the WAIS-III

test which showed a verbal IQ of 69, a performance IQ of 65, and a full scale IQ of 65.

He said her “effort and motivation appeared to be good; therefore, the results of

intellectual testing are thought to be a reliable estimate of her current intellectual

functioning.” Mr. Smith reported Ms. McGee as “able to read the vocabulary words

that were presented to her, but mostly only the simpler words. Her overall verbal

abstraction abilities were also within the impaired range, with very concrete common

sense/social judgment.” 

Mr. Smith also administered the MMPI-2 test, which took Ms. McGee much

longer than normal to complete. Ms. McGee produced an invalid clinical profile. After

noting factors that might produce such a result, for example, “falsely claiming

psychological problems, confusion, and/or a low reading,” Mr. Smith concluded the

MMPI-2 profile was most likely invalid due to Ms. McGee’s low reading ability. He

diagnosed Ms. McGee with generalized anxiety disorder, major depressive disorder,

panic disorder without agoraphobia, and mild mental retardation. This is the first

record mention of any cognitive impairment.

Based on Mr. Smith’s report, Ms. McGee sought a supplemental hearing, which

was held in November, 2005. For the first time, she claimed she met Listing 12.05C

dealing with mental retardation. The ALJ took testimony from a second medical

expert, Dr. Sanford Pomerantz, another vocational expert, Julie Svec, and more

testimony from Ms. McGee. 

Dr. Pomerantz, when asked to account for Ms. McGee’s IQ scores in relation

to the fact that she had not been in special education classes, stated he had “no

explanation why she scored retarded on the test unless perhaps she wasn’t trying her

best.” (A.R. 361.) He concluded Ms. McGee’s “longitudinal history isn’t consistent

with a diagnosis of mental retardation.” 
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On behalf of the Commissioner, the ALJ rejected Ms. McGee’s claim, finding

she was not disabled. Ms. McGee timely sought judicial review of the decision. The

district court affirmed.

II. Analysis

While our review of the district court’s decision is de novo, our review of the

Commissioner’s decision is deferential. See Johnson v. Barnhart, 390 F.3d 1067, 1069

(8th Cir. 2004). We must affirm if the ALJ’s decision is “supported by substantial

evidence in the record as a whole.” Id. at 1070. “Substantial evidence is evidence that

a reasonable mind would find adequate to support a decision, considering both

evidence that detracts from and evidence that supports the Commissioner’s decision.”

Id. If the evidence allows two inconsistent conclusions, and one of them is the

Commissioner’s, we must affirm the Commissioner’s findings. See id.

The Commissioner uses a five-step sequential analysis to determine whether a

claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. A claimant must prove: first,

that she has not engaged in substantial gainful activity; second, that she has a medically

determinable severe impairment, as that term is defined in the regulations; third, she

may prove her impairment meets or equals a presumptively disabling impairment listed

in the regulations; if so, the claimant is presumed to be disabled, and no further analysis

is needed. If not, the analysis proceeds to a fourth step. Here, the claimant must prove

her impairment prevents her from performing her past relevant work; and fifth, if the

claimant carries her burden to this point, the Commissioner has the opportunity (and

burden) to prove there are other jobs the claimant can perform. Gonzales v. Barnhart,

465 F.3d 890, 894 (8th Cir. 2006); Johnson, 390 F.3d at 1070.
4To meet listing 12.05C, Ms. McGee must show “(1) a valid verbal,

performance, or full scale IQ of 60 through 70; (2) an onset of the impairment before

age 22; and (3) a physical or other mental impairment posing an additional and

significant work-related limitation of function.” Maresh v. Barnhart, 438 F.3d 897, 899

(8th Cir. 2006).

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The record shows the ALJ first determined Ms. McGee had not engaged in

substantial gainful activity. To establish step 2's severe impairment, Ms. McGee

presented evidence of anxiety disorder and affective disorder. She also offered Mr.

Smith’s report to show mild mental retardation. The ALJ agreed the anxiety disorder

and affective disorder, taken together, amounted to a medically determinable severe

impairment as defined in the regulations. The ALJ was, however, unpersuaded by the

IQ test, concluding Ms. McGee had “no medically determinable impairment as far as

any mental retardation is concerned.” Id. The ALJ proceeded no further with the

mental retardation analysis. 

Next, the ALJ concluded Ms. McGee’s anxiety and depression did not meet the

presumptively disabling criteria found at Listings 12.04 and 12.06 of 20 C.F.R. Part

404, subpart P, appendix 1. At step 4, the ALJ found that, to the extent Ms. McGee

could be considered to have past relevant work, she retained the capacity to perform

it. Alternatively, the ALJ concluded at step 5, Ms. McGee had the capacity to perform

similar jobs.

On appeal, Ms. McGee challenges only the ALJ’s decision to reject her IQ test.

She claims her IQ test not only establishes medically determinable mental retardation,

as required at step 2, but also meets one of the criteria for presumptive disability

required at step 3. See Listing 12.05C of 20 C.F.R. Part 404, subpart P, appendix 1.

Ms. McGee argues the ALJ should have found her presumptively disabled under

Listing 12.05C, which addresses mild mental retardation.4

 
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The issue, then, is whether there is substantial record evidence as a whole

supporting the ALJ’s decision to reject the IQ scores for invalidity. We find there is.

The WAIS-III is an acceptable means to test for mental retardation. See Bailey

v. Apfel, 230 F.3d 1063, 1065 (8th Cir. 2000) (referring to predecessor test, the WAISR). There is no suggestion the test was improperly administered, and no othertest has

been offered in contradiction. Mr. Smith believed the IQ scores were valid and

accurate.

The Commissioner is not, however, required to accept a claimant’s IQ score.

See Miles v. Barnhart, 374 F.3d 694, 699 (8th Cir. 2004); Clark v. Apfel, 141 F.3d

1253, 1255 (8th Cir. 1998). Rather, the ALJ should examine the record to determine

whether the proffered IQ score is reliable - that is, consistent with the claimant’s daily

activities and behavior. Miles, 374 F.3d at 699. An ALJ may reject IQ scores if they

are inconsistent with the record. Johnson, 390 F.3d at 1071; Clark, 141 F.3d at 1255.

Here, the ALJ rejected Ms. McGee’s IQ scores as invalid. 

We must consider the record as a whole, including evidence both for and against

the ALJ’s conclusion. The strongest evidence against the ALJ’s view is the IQ test

itself. The ALJ requested the examination and selected the psychologist who

administered it. The resulting scores clearly fall in the range contemplated by Listing

12.05C. The psychologist who administered the test supported its validity.

On the other hand, this IQ test stands alone in the record. It is the product of a

single examination by a non-treating psychologist in connection with a disability

benefits claim. Compare Clark, 141 F.3d at 1256. (“A one-time evaluation by a nontreating psychologist is not entitled to controlling weight.”) It was administered when

Ms. McGee was 31 years old. While IQ is presumed stable over time, see Maresh, 438

F.3d at 900, we consider the fact that Ms. McGee was never previously suspected of

mental retardation to be “significant in gauging the reliability” of these particular IQ
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scores. Clark, 141 F.3d at 1256. (“Nothing in [claimant’s] extensive medical records

indicates that she was ever suspected of being mildly mentally retarded” prior to

examination.)

The IQ scores are inconsistent with Ms. McGee’s medical history. Ms. McGee

has been extensively examined by medical and mental health professionals over many

years. They have examined her in connection with recurrent depression, anxiety, and

panic attacks. Mr. Smith is the first, and the only, person suggesting any cognitive

difficulty at all. Significantly, neither Ms. McGee’s treating psychiatrist nor her

therapist, each of whom saw her periodically for more than a year prior to the IQ test,

perceived any mental retardation. Compare Clark, 141 F.3d at 1256.

The IQ scores are also inconsistent with Ms. McGee’s prior history and present

activities. Ms. McGee always took regular classes and completed the tenth grade in

school. There is no evidence showing she struggled academically. While she dropped

out of school after tenth grade, her departure was to have a baby, as opposed to any

suggestion of academic inability. Thereafter, she earned her GED. While she

indicated she had been fired from jobs due to her inability to accept criticism, we have

no evidence showing she ever lost a job for lack of cognitive ability. Compare Miles,

374 F.3d at 698 (claimant had not been terminated from a job for lack of mental

abilities). We also contrast Mr. Smith’s conclusion of limited reading ability with the

reports by both Ms. McGee and her husband that she regularly reads newspapers,

magazines, and the Bible. She stated she tries to read for “at least an hour a day.” At

the time of the hearing, Ms. McGee and her disabled husband were maintaining a home

and raising five children ranging in age from 14 to 2, which the ALJ found was

inconsistent with mental retardation.

Ms. McGee argues that her GED is not necessarily inconsistent with a finding

of mild mental retardation. See Appellant’s Br. at 28-29, citing Markle v. Barnhart,

324 F.3d 182, 189 (3d Cir. 2003) and Lewis v. Astrue, No. C06-6608 SI, 2008 WL
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191415 (N.D. Cal., Jan. 22, 2008) (unpublished). However, a claimant’s educational

achievement is one factor properly considered in determining whether IQ scores are

valid. See Miles, 374 F.3d at 695, 698 (claimant received B grades in regular classes

through the eleventh grade); Clark, 141 F.3d at 1254, 1255 (claimant had ninth grade

education). In essence, Ms. McGee is asking us to reweigh the evidence. This we may

not do. We cannot reverse the Commissioner’s decision merely because substantial

evidence supports a contrary outcome. Clark, 141 F.3d at 1255.

Finally, the ALJ found Ms. McGee’s demeanor at the hearings was inconsistent

with a finding of mental retardation. An ALJ’s personal observation of a claimant at

the hearings is an appropriate factor to consider in assessing the validity of IQ score.

Miles, 374 F.3d at 699; Clark, 141 F.3d at 1255. 

Given the evidence, the ALJ found Ms. McGee’s low IQ scores were best

explained by poor motivation, despite Mr. Smith’s finding to the contrary. There is

substantial evidence in this record as a whole which supports the ALJ’s finding, and

we will not disturb it.

Absent a valid IQ score, Ms. McGee cannot show a medically determinable

cognitive impairment requiring further analysis. Nor can she show an impairment

which meets the Listing 12.05C criteria. See Johnson, 390 F.3d at 1070, citing Sullivan

v. Zebley, 493 U.S. 521, 530-31 (1990) (claimant must present medical findings equal

in severity to all the criteria of a listed impairment). Therefore, we find there is

substantial evidence in the record as a whole which supports the Commissioner’s

conclusion that Ms. McGee is not presumptively disabled.

For the foregoing reasons, the decision of the district court is affirmed.

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