Novy, Patricia v. Astrue, Michael J. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-3897
PATRICIA NOVY,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 2090—Martin C. Ashman, Magistrate Judge.
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ARGUED JULY 11, 2007—DECIDED AUGUST 14, 2007
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Before POSNER, COFFEY, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Patricia Novy, age 35, applied
unsuccessfully for social security disability benefits. The
principal issue and the only one we need discuss involves
her claim of being mentally retarded. Her main evidence
of retardation is her low IQ—69—though there is also
evidence from psychologists and other medical profession-
als that, as one would expect, she has poor memory,
confused thinking, and, as her brief puts it, “marginal
ability to navigate social encounters and activities of
daily living.”
2 No. 06-3897
The applicable regulation defines mental retardation as
“significantly subaverage general intellectual function-
ing with deficits in adaptive functioning initially mani-
fested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before
age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. I, § 12.05. The
requirement of early onset and the reference to the claim-
ant’s “developmental period” seem intended to limit
coverage to an innate condition, Brown v. Secretary of Health
& Human Services, 948 F.2d 268, 271 (6th Cir. 1991), rather
than a condition resulting from a disease or accident in
adulthood. This condition was forcefully questioned in
Tennessee Protection & Advocacy, Inc. v. Wells, 371 F.3d 342,
346-50 (6th Cir. 2004), but is in any event satisfied in this
case.
If in addition to being retarded within the meaning of
the regulation the claimant has an IQ below 60, she is
deemed disabled, without more. 20 C.F.R. Pt. 404, Subpt. P,
App. I, § 12.05(B). But if her IQ is at least 60, she must, in
order to establish disability without reference to her age,
education, or work experience, demonstrate “a physical
or other mental impairment imposing an additional and
significant work-related limitation of function.” Id.,
§ 12.05(C); see Mendez v. Barnhart, 439 F.3d 360, 361 (7th
Cir. 2006); Hinkle v. Apfel, 132 F.3d 1349, 1351-52 (10th Cir.
1997); Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990)
(per curiam). In other words, and critical to Novy’s case,
a low IQ, but not an IQ below 60, is insufficient, even
with the presence of some impairment, to establish dis-
ability per se on grounds of mental retardation. The reason
is that a person with an IQ in the 60s (or even lower) may
still be able to hold a full-time job, Mendez v. Barnhart,
supra, 439 F.3d at 361; see Chunn v. Barnhart, 397 F.3d 667,
No. 06-3897 3
669 (8th Cir. 2005); Banks v. Massanari, 258 F.3d 820, 821-22
(8th Cir. 2001); Foster v. Halter, 279 F.3d 348, 355 (6th Cir.
2001). Their employment opportunities are of course
limited. See, e.g., Paul Wehman, John Bricout & John
Kregel, “Supported Employment in 2000: Changing the
Locus of Control from Agency to Consumer,” in Mental
Retardation in the 21st Century 115 (Michael L. Wehmeyer &
James R. Patton eds. 2000); William E. Kiernan, “Where
We Are Now: Perspectives on Employment of Persons
with Mental Retardation,” in id. at 151. But the social
security disability program is not an unemployment-
benefits law.
The key term in the introductory paragraph of section
12.05 of the regulation, so far as bears on this case, is
“deficits in adaptive functioning.” The term denotes
inability to cope with the challenges of ordinary everyday
life. American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, Text Revision (DSM-
IV-TR) 42 (4th ed. 2000). If you cannot cope with those
challenges, you are not going to be able to hold down a
full-time job. In the case of Novy, however, the administra-
tive law judge was on firm ground in finding that she
can cope. She lives on her own, taking care of three chil-
dren (possibly four—she definitely has four but the record
is unclear whether more than three of them are living
with her) without help, feeding herself and them, taking
care of them sufficiently well that they have not been
adjudged neglected and removed from her custody by
the child-welfare authorities, paying her bills, avoiding
eviction. Her intellectual limitations pose serious chal-
lenges to her ability to raise a family on her own. But
she has overcome those challenges well enough that she
should be able to hold down a full-time job—or so at least
4 No. 06-3897
the administrative law judge was entitled to conclude
without courting reversal.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-14-07