IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60304

Summary Calendar

CEDRIC MCCASKILL, 

Plaintiff - Appellant

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES, 

SOCIAL SECURITY ADMINISTRATION, 

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi 

USDC No. 1:14-CV-24

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Cedric McCaskill (“Appellant”) applied for disability 

benefits, but his claim was ultimately denied by the Administrative Law Judge

(the “ALJ”) and the Appeals Council. Appellant then filed a complaint in the 

district court. The Magistrate Judge (the “Magistrate”) recommended that the 

Commissioner’s decision be affirmed. Appellant objected. The district court 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 22, 2016

Lyle W. Cayce

Clerk

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overruled Appellant’s objection and adopted the Magistrate’s Report and 

Recommendation. Appellant timely appealed to this Court. After reviewing 

the record and the applicable law, we find no reversible error and AFFIRM.

FACTUAL BACKGROUND

Appellant filed for disability benefits in 2009 alleging back problems and 

a hearing deficit on his left side. After his application was initially denied by 

the ALJ, the Appeals Council remanded for further administrative 

proceedings, particularly, the Appeals Council directed the ALJ to obtain a 

consultative mental examination that included an IQ score and a medical 

statement of Appellant’s abilities. On remand, the ALJ obtained the 

consultative mental evaluation, and an IQ score from Dr. Patsy Zakaras 

(“Dr. Zakaras”). After reviewing the new information and the previously 

established record, the ALJ again denied Appellant benefits because Appellant 

did not have an impairment or combination of impairments that met or 

medically equaled one of the listed impairments in 20 C.F.R. Part 404, 

Subpt. P, App. 1 for presumptive disability. Specifically, Appellant’s claim to 

the Listed Condition of intellectual disability under 12.05 was rejected. 

Appellant once more sought review from the Appeals Council, but was denied. 

The ALJ’s decision was ultimately affirmed by the district court in 2015.

DISCUSSION

The Commissioner’s decision is granted great deference. Leggett v. 

Chater, 67 F.3d 558, 564 (5th Cir. 1995). 

Our review of the Commissioner’s decision is limited to two 

inquiries: (1) whether the decision is supported by substantial 

evidence on the record as a whole, and (2) whether the 

Commissioner applied the proper legal standard. Substantial 

evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. It is more than a mere 

scintilla and less than a preponderance. In applying the 

substantial evidence standard, the court scrutinizes the record to 

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determine whether such evidence is present, but may not reweigh 

the evidence or substitute its judgment for the Commissioner’s. 

Conflicts of evidence are for the Commissioner, not the courts, to 

resolve. If the Commissioner’s fact findings are supported by 

substantial evidence, they are conclusive.

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (internal citations and 

quotations omitted).

The governing regulations set forth a five-step sequential evaluation 

process for determining disability: (1) whether the claimant is working;

(2) whether the claimant has a medically severe impairment; (3) whether the 

impairment is severe enough to meet the criteria of a listed impairment; 

(4) whether the impairment prevents the claimant from returning to past 

relevant work; and (5) if an individual’s impairment precludes him from 

performing his past work, other factors including age, education, past work 

experience, and residual functional capacity must be considered to determine 

if other work can be performed. Greenspan v. Shalala, 38 F.3d 232, 236 (5th 

Cir. 1994). 

The claimant has the burden of proof at the first four steps of the process. 

See Leggett, 67 F.3d at 564. At step five, the burden shifts to the Commissioner 

to show that the claimant can perform other work that exists in significant 

numbers in the national economy. See Perez v. Heckler, 777 F.2d 298, 300-301 

(5th Cir. 1985). If the Commissioner meets that burden, then the burden shifts 

back to the claimant to prove that he cannot perform the other work. Carey v. 

Apfel, 230 F.3d 131, 146 (5th Cir. 2000). 

Appellant raises six issues for review: (1) whether the ALJ complied with 

the Appeal’s Council order to obtain a consultative mental evaluation,

including Appellant’s IQ score; (2) whether the evidence supported the ALJ’s 

finding that Appellant did not meet the criteria of a listed impairment under 

20 C.F.R. Ch. III, Pt. 404 12.05 (B), or 12.05 (C); (3) whether the Magistrate 

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erred in granting a protective order preventing Appellant from deposing 

Dr. Zakaras about the IQ score on her report; (4) whether the ALJ properly 

considered Dr. Zakaras’s report; (5) whether the district court erred in

adopting the Magistrate’s decision and affirming the ALJ; (6) whether 

Appellant’s due process rights were violated. We address each issue below.

1. The Appeals Council’s order.

After the case was remanded, the ALJ ordered a consultative mental 

examination, including an IQ score. After receiving the evaluation results, the 

ALJ wrote to psychologists Dr. Zakaras and Dr. Fontenelle inquiring about the 

validity of the IQ scores in their respective reports. Dr. Fontenelle responded, 

validating Appellant’s full scale IQ score of 69.1 There is no record evidence 

that Dr. Zakaras responded. Appellant’s IQ score in Zakaras’s report is 59.

Appellant contends that the validity of the IQ score on Dr. Zakaras’s 

reports was never established. Consequently, Appellant argues that the ALJ 

did not comply with the Appeals Council’s order.

We are unpersuaded by Appellant’s argument. It is undisputed that the 

ALJ obtained a consultative evaluation and an IQ score. Appellant focuses his 

appeal on the validity, or lack of thereof, of his IQ score. But there is nothing 

in the ALJ’s final decision indicating that the IQ scores from Dr. Zakaras’s or

Dr. Fontenelle’s reports were invalid. In fact, the ALJ considered both IQ 

scores, as well as Appellant’s special education history, in his thorough 

analysis of the evidence. The ALJ ultimately denied Appellant’s disability 

application because, as discussed below, Appellant failed to meet the required 

adaptive functioning deficit—not because of his IQ scores.2 Without doubt, the 

 

1 This score was available prior to the Appeals Council’s remand order. 

2 See, e.g., Vaughn v, Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (affirming ALJ’s finding 

of no disability as supported by substantial evidence due in part to the fact that “the record 

reflects that [the claimant] was able to, and did, work for several years while suffering from 

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ALJ complied with the Appeals Council’s order to obtain a consultative mental 

evaluation and an IQ score.

2. Disability criteria under 12.05.

The regulations clearly state that the IQ test score alone does not 

establish intellectual disability as a Listed impairment. Appellant must 

demonstrate that his impairment meets all the specified medical criteria of the 

listing, rather than merely some of the criteria. Before proceeding any further 

in the disability eligibility analysis, Appellant must satisfy the diagnostic 

definition of intellectual disability—he must demonstrate “significantly

subaverage general intellectual functioning with deficits in adaptive 

functioning initially manifested before age 22.” Randall v. Astrue, 570 F.3d 

651, 656-662 (5th Cir. 2009) (emphasis added); 20 C.F.R. Pt. 404, 

Subpt. P, App. 1, § 12.05. Therefore, satisfying the intellectual disability 

definition of 12.05 is a prerequisite to considering 12.05 (A), (B), (C), or (D).3 

 

ailments she now asserts are disabling”); Muse v. Sullivan, 925 F.2d at 789-90 (finding 

substantial evidence supported the ALJ’s finding that claimant was not mentally disabled 

notwithstanding an IQ score of 58 based, in part, on the fact that “[t]here was no evidence in 

the record that [the claimant] had ever been fired from a job because he could not 

comprehend, remember, or carry out the mental . . . duties” and thus the claimant’s “work 

experience belie[d] that he was [mentally disabled]”).

3 12.05 Intellectual Disability: Intellectual Disability refers to significantly 

subaverage general intellectual functioning with deficits in adaptive functioning initially 

manifested during the developmental period; i.e., the evidence demonstrates or supports 

onset of the impairment before age 22. The required level of severity for this disorder is met 

when the requirements in A, B, C, or D are satisfied. 

A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, 

eating, dressing, or bathing) and inability to follow directions, such that the use of 

standardized measures of intellectual functioning is precluded; OR B. A valid verbal, 

performance, or full scale IQ of 59 or less; OR C. A valid verbal, performance, or full scale IQ 

of 60 through 70 and a physical or other mental impairment imposing an additional and 

significant work-related limitation of function; OR D. A valid verbal, performance, or full 

scale IQ of 60 through 70, resulting in at least two of the following: 

1. Marked restriction of activities of daily living; or 

2. Marked difficulties in maintaining social functioning; or 

3. Marked difficulties in maintaining concentration, persistence, or pace; or 

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Part of the disability definition is the adaptive functioning prong. In 

Heller v. Doe, 509 U.S. 312, 329 (1993), the Court described “adaptive 

functioning” as a person’s “effectiveness in areas such as social skills,

communication, and daily living skills, and how well the person meets the 

standards of personal independence and social responsibility expected of his or 

her age by his or her cultural group.” Adaptive activities include cleaning, 

shopping, cooking, maintaining a residence, taking public transportation, and 

caring appropriately for grooming and hygiene. 20 C.F.R. Pt. 404, Subpt. P,

App. 1, § 1200(C)(1).

Here, the record contains sufficient evidence supporting the ALJ’s 

finding that Appellant failed to meet the required adaptive functioning prong. 

Appellant’s own testimony reflects that he can clean, mow his yard, live by 

himself, do his own housekeeping, shopping, laundry, cooking (or get his own 

meals), drive, and attend to his own grooming and hygiene. 

Dr. Zakaras’s evaluation also revealed that Appellant can perform 

routine tasks, follow and understand directions, cope with work stress, and 

respond to supervision; he has fairly good remote memory, his thoughts are 

logical and goal oriented, and that he has not been in counseling. Dr. Zakaras

also diagnosed Appellant with a learning disorder, not an intellectual

disability. 

In addition, Dr. Fontenelle’s evaluation found that Appellant showed 

relative strength in his social adaptive independent living. This evidence, 

coupled with Appellant’s fifteen-year career as a longshoreman, supports that 

Appellant does not have adaptive deficits with an onset before age twenty-two.

 

4. Repeated episodes of decompensation, each of extended duration. Greenspan, 38 F.3d 232, 

236 (5th Cir. 1994).

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But Appellant argues that the ALJ conclusively found that Appellant 

met the adaptive deficit requirement. Appellant relies on a statement the ALJ 

made at a hearing on remand. After reviewing primarily the evidence 

concerning Appellant’s IQ score, the ALJ stated that he thought Appellant met 

the adaptive deficit requisite. Therefore, Appellant contends that the only 

issue to be determined on remand was whether the IQ scores were valid.

In denying Appellant relief, the district court characterized the ALJ’s 

statement as a comment rather than a finding of fact.4 The district court also 

pointed to the lack of legal authority construing an ALJ’s comments at a 

hearing as a conclusive and binding finding of fact. See P.C.S. v. U.S. Comm’r 

Soc. Sec. Admin., 2011 WL 4499368 at *1 (W.D. La. Sept. 27, 2011) (holding 

that an ALJ’s written decision, which provides findings of fact and the reasons 

for denying a claim, controls over statements that the ALJ made at the 

administrative hearing). 

The Commissioner asserts that any error based on the ALJ’s statement 

is harmless because Appellant has not proven his adaptive deficits. See Morris 

v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (procedural perfection in an 

administrative procedure is not required). 

We agree with the district court and Appellee. It is improper to 

characterize the ALJ’s comment at the remand hearing as a finding of fact. 

The comment was made after the ALJ reviewed primarily the IQ related 

evidence, not the entire record. Not only should the written decision control 

over the ALJ’s oral statement but here the record clearly shows this was a 

premature impression because the ALJ subsequently issued a detailed written 

decision based on all the record evidence. 

 

4 A district court’s findings of fact are reviewed for clear error and legal conclusions 

are reviewed de novo. Aransas Project v. Shaw, 775 F.3d 641, 653 (5th Cir. 2014).

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Additionally, the alleged error was harmless, as substantial evidence 

supports the conclusion that Appellant did not meet the adaptive deficit 

requirement of 12.05. Any evidence to the contrary cited by Appellant is 

insufficient to warrant reversal on the present record. See Perez, 415 F.3d at 

461 (conflicts of evidence are for the Commissioner, not the courts, to decide).5 

Appellant failed to prove the disability eligibility criteria under 12.05.

3. The sufficiency of the record and the protective order.

Appellant also argues that the ALJ made a decision based on an 

incomplete record because no IQ validating statement was obtained from

Dr. Zakaras. Appellee contends that the record evidence is sufficient to 

support the ALJ’s decision. We agree with Appellee. 

The Fifth Circuit has determined that trial courts should not 

reverse or remand determinations because documents are missing 

where the record contains enough evidence for the ALJ to make a 

determination. See Torres, 48 F.3d at 893-94 (claimant failed to 

demonstrate that lost evidence affected the ALJ’s ability to render 

an informed decision); see also Brady v. Apfel, 41 F. Supp. 2d 659, 

668 (E.D. Tex. 1999) (rejecting argument that incomplete 

administrative record is per se denial of due process; affirming 

denial where documents would be of de minimis value and were 

irrelevant); Hawkins v. Barnhart, 356 F. Supp. 2d 359, 365-66 

(S.D. N.Y. 2005) (upholding denial of benefits where ALJ’s decision 

supported by substantial evidence even absent missing 

documents). Agency records furnished to a court are adequate for 

due process purposes unless they do not permit meaningful 

judicial review of the adjudication process. Brady, 41 F. Supp. 2d 

at 668 (citing Harrison v. PPG Indus., Inc., 446 U.S. 578, 594, 

100 S. Ct. 1889, 64 L.Ed.2d 525 (1980); Torres, 48 F.3d at 887).

 

5 In the end, the ALJ concluded that Appellant could perform light work available in 

significant numbers in the national economy and Appellant failed to provide evidence 

rebutting the ALJ’s determination. See Carey, 230 F.3d at 146.

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Quintanilla v. Astrue, 619 F. Supp. 2d 306, 325 (S.D. Tex. 2008). Here, as 

detailed above, the 659 page record provides ample evidence that Appellant 

did not meet the adaptive deficiency requirement of 12.05 Zakaras’s missing 

statement validating Appellant’s IQ score is of no consequence, but in any 

event, nothing in the ALJ’s order or even in Zakaras’s own report suggests that 

Appellant’s IQ score is incorrect.

The sufficiency of the record also obviated the need for a status 

conference or for the deposition of Dr. Zakaras, which Appellant requested in 

order to complete the record.6 Accordingly, the Magistrate properly granted a 

protective order preventing a deposition of Dr. Zakaras. 

4. The psychological reports.

Appellant also argues that he was prejudiced because the ALJ selectively 

relied on portions of Dr. Zakaras’s report but discounted evidence in the same 

report supporting that Appellant’s alleged adaptive deficit was present before 

age twenty- two. Appellant also contends that the ALJ improperly relied on a 

psychological report from Dr. Sharon Scales

In rebuttal, Appellee contends that the ALJ considered Dr. Zakaras’s 

entire report and that Appellant waived any objection to the ALJ’s reliance on 

Dr. Scales’s report by not raising the issue in the district court. See Singleton 

v. Wulff, 428 U.S. 106, 120 (1976). 

Appellant’s first contention does not warrant reversal because conflicts 

of evidence are for the Commissioner, not the courts, to decide. Perez, 415 F.3d 

at 461. It is not the job of this panel to reweigh evidence, or substitute its 

judgment for the Commissioner’s. Id. Even assuming the presence of some 

 

6 Evidentiary rulings are reviewed under a deferential abuse of discretion standard. 

Aransas Project, 775 F.3d at 655.

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contrary evidence, the record contains substantial evidence to support the 

ALJ’s findings. 

Second, Appellant waived any issue concerning Dr. Scales’s report by not 

raising it in the district court. Appellant does not establish any extraordinary 

circumstances for this panel to make an exception. See Leverette v. Louisville 

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). 

5. The district court’s decision.

Appellant next contends that the district court applied the incorrect legal 

standard, 12.05(D), in adopting the Magistrate’s Report and Recommendation. 

As Appellee points out, however, nothing in the district court’s order indicates

any reliance on 12.05 (D). Moreover, the relevant issue is whether there is 

substantial evidence supporting the ALJ’s decision, and we have already 

concluded that there is.

6. Due process.

Last, Appellant asks for remand or reversal based on the errors he 

alleges that the ALJ and the district court committed. In the absence of 

reversible error, we deny such relief. Alternatively, he seeks remand to file a 

brief before the Appeals Council on his second appeal. We also deny this 

request as nothing prevented Appellant from briefing his case to the Appeals 

Council. Appellant had the opportunity to brief his points of contention in the 

district court. 

For these reasons, the district court’s judgment is AFFIRMED.

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