NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

No. 19-2079 __________

BRUCE A. KIBE, JR., Appellant

v.

COMMISSIONER SOCIAL SECURITY

__________

On Appeal from the United States District Court for the Western District of Pennsylvania (District Court Civil No. 2-18-cv-00228) District Judge: Honorable Donetta W. Ambrose

Submitted Under Third Circuit L.A.R. 34.1(a) November 1, 2019

BEFORE: HARDIMAN, PHIPPS, and NYGAARD, Circuit Judges

(Filed: December 16, 2019) __________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. NYGAARD, Circuit Judge.

Appellant Bruce Kibe, Jr., appeals from the decision of the District Court granting

summary judgment to the Commissioner of Social Security who denied Kibe’s claim for

disability benefits. We review to determine whether the Commissioner’s decision is

supported by substantial evidence.1 We will affirm.

As the parties are familiar with the record, we raise here only those facts that are

essential to our decision. Kibe contends, first, that the ALJ erred at step three of the five-

step analysis by concluding that his impairments (learning disorder/borderline intellectual

functioning, bipolar disorder and schizoaffective disorder) did not show the marked

restrictions necessary to be “severe enough to prevent an individual from doing gainful

activity”2 consistent with the impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1,

12.05 (intellectual disorder). Kibe points to his verbal comprehension IQ score of 70 and

contends the ALJ erroneously relied on speculative inferences from the record to

discredit it. Kibe also complains that the ALJ ignored the fact that, while in school, he

was placed in specialized classes for learning disabled students. This placement, of itself,

he says, was significant evidence of his impairment.

Yet, the ALJ pointed to an array of evidence that undermined the IQ score as an

accurate reflection of the severity of Kibe’s impairment. Kibe did not produce any

physician diagnoses of an intellectual disability. Dr. David Newman diagnosed only

1 Rutherford v. Barnhart,

(3d Cir. 2005). “We have jurisdiction under both

and

(g) to review final determinations by the Commissioner.”

2

(a). 2 borderline intellectual functioning. In addition, Kibe showed adaptive ability by: tending

to his own personal care; independently making and keeping his own medical

appointments; showing an ability to read and write; and, exhibiting an ability to do

gainful employment. Moreover, after acknowledging that Kibe was in special education

classes and had academic scores in a low to moderate range, the ALJ evaluated this

evidence as insufficient to show low intellectual function. In short, the ALJ did not

ignore or misinterpret crucial evidence relevant to step three of the analysis, nor did the

decision rely on mere speculation. The ALJ’s decision that Kibe’s impairments did not

show the marked restrictions necessary to meet a listed impairment is supported by

substantial evidence. There is no basis here to remand.

Kibe next contends that the ALJ did not include his borderline intellectual

functioning, as well as marked limitations in a number of areas, in the questions to the

vocational expert at step five of the analysis. He maintains that this undermines the

Residual Functional Capacity finding. The ALJ erred, he argues, by disregarding

evidence of limitations in social interactions, as exhibited in Kibe’s verbal and physical

altercations with co-workers, and similar behavior with people outside of work. He

contends this demonstrates a marked limitation on his ability to work with others.

Next Kibe says the ALJ brushed aside the opinion of his treating physician who

opined that Kibe was completely disabled. He maintains that Dr. Joel Last’s observations

and conclusions carried great weight because he was his treating physician. He also

asserts that the ALJ relied instead on “stale” evidence.

3 There are a number of problems with his contentions. The ALJ has wide latitude

to create hypothetical questions that incorporate a claimaint’s functional limitations. The

ALJ also has ample discretion to weigh Kibe’s own opinions about his difficulties in

work environments. With that said, noting that Kibe had mental limitations and moderate

difficulties in social functioning, the record shows that the ALJ constructed hypotheticals

accounting for superficial or minimal contact with the general public and co-workers.

The hypotheticals also addressed a need for simple, repetitive tasks and precluded work

with a fast pace or with production quotas. As for Dr. Last’s opinion, the ALJ did not

disregard it. He accepted Last’s diagnosis of a schizoaffective disorder. But, as for his

opinion on functional limitations and his general assessment that Kibe was completely

disabled, the ALJ noted that the Doctor’s own record did not support his conclusions.

The ALJ characterized Kibe’s medical treatment as conservative and largely successful in

managing his impairments (for instance, dropping from monthly appointments to three-

month appointments to monitor his medication), contradicting Dr. Last’s conclusions

about Kibe’s marked limitations. This led the ALJ to give less weight to Last’s opinion,

eliminating any concerns about the date of the evidence the ALJ relied upon. The ALJ’s

hypotheticals reflected the entire record; his analysis properly focused on assessing

evidence of Kibe’s functional limitations. We conclude that substantial evidence

supports the ALJ’s decision denying benefits.

For all of these reasons, we will affirm the order of the District Court.

4