Griffin, Willie J. v. Barnhart, Jo Anne B. , 198 F. App'x 561 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 15, 2006
Decided November 21, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1518
WILLIE J. GRIFFIN, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v. No. 05 C 132
JO ANNE B. BARNHART, Larry J. McKinney,
Chief Judge
Defendant-Appellee.
ORDER
Willie Griffin applied for Supplemental Security Income and Disability
Insurance Benefits in May 2002, claiming disability due to a gunshot wound and
mental retardation. His claim was denied initially, upon reconsideration, and after a
hearing before an ALJ. The ALJ found that Griffin was not disabled because he was
capable of performing substantial gainful activity. We affirm.
At the time of his administrative hearing in 2004, Griffin was 40 years old. In
the years preceding the onset of his alleged disability, Griffin worked as a construction
worker, restaurant stocker, warehouse worker, and maintenance worker. In April
2002, he was admitted to the hospital with a gunshot wound to his abdomen. He
remained in the hospital for three weeks, after which he was released with a
No. 06-1518 Page 2
colostomy. The colostomy was removed in July 2002, and the attending physician
reported no abnormalities in Griffin’s cardiovascular or respiratory systems. Griffin
was released from the hospital a week after the colostomy was removed, again with no
evidence of complications. The surgeon who treated Griffin after his gunshot wound
released him for work with no restrictions in November 2002.
In May 2002, the Disability Determination Bureau referred Griffin to a
psychologist to investigate his claims of depression, anxiety, and “reading problems.”
In his report the psychologist, Dr. O’Brien, noted that even when specifically asked,
Griffin did not mention having a mental health disorder. Griffin alleged that he had
depressive symptoms, but reported that the severity of his symptoms had subsided
over time. Based on Griffin’s responses to the mental health examination, Dr. O’Brien
stated that he met the criteria for an adjustment disorder with depressed mood. The
doctor also noted that mild mental retardation should be “rule[d] out,” presumably
through further testing. After receiving this diagnosis, Griffin amended his application
to allege complete disability due to the gunshot wound—which he claimed caused
constant abdominal and back pain, difficulty with bowel movements and urination, and
entire body weakness—plus hypertension, depression, anxiety, difficulties with
memory and reading, and possible mild mental retardation.
An administrative hearing was held in September 2004 to determine Griffin’s
disability status. Three experts were called to testify at the hearing: Dr. David Jarmon
and Dr. Loyd Stump, both non-examining physicians, and Michael Blankenship, a
vocational expert. Dr. Jarmon testified that the only evidence of psychological
impairment in the record was Dr. O’Brien’s diagnosis of an adjustment disorder with
depressed mood, and possible mild mental retardation. He opined that Griffin’s
adjustment disorder was a psychological response to his injury, and that it would exist
as long as the physical conditions causing the disorder exist. Dr. Jarmon also testified
that the record contained no evidence that Griffin could not perform simple, unskilled
labor. Based on his review of the record, Dr. Stump testified that Griffin did not
appear to have complications from any of his surgical procedures. Blankenship
testified that Griffin’s past jobs were either unskilled or semi-skilled and that the
exertion level of his jobs was typically either medium or heavy. When asked about the
availability of jobs for an illiterate, 40-year-old man who could lift up to 20 pounds,
Blankenship asserted that there were roughly 255 sedentary, unskilled jobs in Indiana
that he could perform.
On the basis of the experts’ testimony and his finding that Griffin’s testimony
was not credible, the ALJ concluded that Griffin was not disabled. Following the five-
step analysis detailed in 20 C.F.R. § 404.1520, the ALJ concluded that Griffin had not
engaged in substantial gainful activity since the onset of his disability (step one), and
assumed arguendo that Griffin had severe medically determinable impairments (step
two). The ALJ next concluded that Griffin’s impairments did not satisfy the § 12.05
No. 06-1518 Page 3
listing (step three). According to the ALJ, Griffin’s mental retardation was not
developmental, that is, did not exist before age 22; the ALJ further noted that Griffin’s
work history indicated that he did not show deficits in adaptive behavior that were
required for a valid mental retardation diagnosis. The ALJ also determined that
Griffin could perform the work that he had done in the past (step four), noting that
“there is no pathology in the claimant’s impairments precluding work at this level.”
The Appeals Council declined review, and the ALJ’s decision became the final decision
of the Commissioner of Social Security. The district court affirmed the decision.
On appeal Griffin first argues that the ALJ improperly discounted evidence
supporting his mental retardation claim. Griffin points to his placement in special
education classes during childhood, his poor academic record, his illiteracy, and Dr.
O’Brien’s post-examination note to “rule out mild mental retardation” to show that he
is mentally retarded. This court will uphold the ALJ’s findings if they are supported
by substantial evidence. See Blakes v. Barnhart, 331 F.3d 565, 568 (7th Cir. 2003).
Mental retardation is “significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested during the developmental
period . . . before age 22.” See 20 C.F.R. Pt. 404, Subpt. P, App.1 § 12.05. Section
12.05(C) holds that a claimant is considered mentally retarded when he has 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.
Id.; Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999).
Although Griffin argued that he was mentally retarded, he did not supply the
ALJ with sufficient evidence supporting his claim. For example, he did not provide IQ,
or any other test results, which are required by statute to establish mental retardation.
Additionally, aside from his own testimony, Griffin presented no evidence
corroborating his alleged illiteracy or poor academic record. Cf. Maresh v. Barnhart,
438 F.3d 897, 900 (8th Cir. 2006) (noting that record evidence confirming claimant’s
special-education instruction during childhood, in addition to low IQ results taken at
age 37, supported his claim of developmental mental retardation).
Griffin relatedly argues that the ALJ abdicated his duty to fairly develop the
record by not requesting a full psychological examination. But Griffin bears the
burden of supplying evidence to prove his claim of disability. See Ribaudo v. Barnhart,
458 F.3d 580, 583 (7th Cir. 2006); Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir.
2004). The ALJ’s duty to develop the record is not so sweeping that it can relieve an
applicant entirely of his own responsibility for supporting his claim; instead, the ALJ
must exercise some discretion in deciding when and how he should order additional
evidence. Dr. O’Brien’s note is the only evidence suggesting mental retardation, but
the notation to “rule out mild mental retardation” was by no means a diagnosis. Given
the dearth of evidence supporting Griffin’s claim, the ALJ did not abuse his discretion
No. 06-1518 Page 4
in refusing to order additional tests. Substantial evidence in the record supported his
conclusion that Griffin did not meet the listing for mental retardation.
Griffin also suggests that this court’s opinion in Mendez v. Barnhart, 439 F.3d
360 (2006), requires reversal of the ALJ’s decision, but his reliance on Mendez is
misplaced. In that case, this court stated that there was “no question” that the
claimant’s deficits were developmental, id. at 362, whereas in this case, as discussed
above, Griffin provides virtually no concrete evidence of mental retardation.
Griffin next argues that the ALJ’s credibility determination violated Social
Security Ruling 96-7p. Specifically, he argues that the ALJ did not provide specific
reasons for his skepticism about Griffin’s claim that he can no longer work. This court
defers to a credibility finding, and will reverse only if the finding is “patently wrong.”
See Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (citation omitted); Sims
v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006) (“Credibility determinations can rarely
be disturbed by a reviewing court, lacking as it does the opportunity to observe the
claimant testifying.”). Here after reviewing Griffin’s medical history—which included
a work release from the surgeon who treated his gunshot wound and medical experts’
testimony that his injury had largely healed—and questioning Griffin, the ALJ found
his testimony not credible. The ALJ noted that his demeanor varied greatly depending
on who asked the questions and mentioned that Griffin made “an unpersuasive
attempt to cry.” Because the ALJ based his determination on a combination of medical
evidence and his perception of the witness, the credibility finding should not be
disturbed. See Sienkiewicz v. Barnhart, 409 F.3d 798, 803-04 (7th Cir. 2005).
Griffin’s final arguments are that the ALJ erred in formulating his residual
functional capacity (RFC)—by not factoring in his alleged mental retardation—and
that the ALJ improperly found that Griffin was able to perform jobs he previously held.
As discussed above, however, substantial evidence supports the ALJ’s conclusion that
Griffin was not mentally retarded. Substantial evidence also supports the ALJ’s
finding that Griffin could perform medium to high level work. Both testifying doctors
opined that Griffin no longer had work-related limitations. The ALJ also noted
Griffin’s work release in 2002, and the fact that state agency examiners expected no
lasting physical ramifications from the gunshot wound. The ALJ mentioned Griffin’s
subjective complaints, but found them incredible, largely because they were not
substantiated by medical evidence. Despite Griffin’s assertion to the contrary, nothing
in the record suggests that this finding was erroneous.
AFFIRMED.