Mendez, Judith v. Barnhart, Jo Anne B. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2017
JUDITH MENDEZ,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:03-CV-309—Andrew P. Rodovich, Magistrate Judge.
____________
ARGUED JANUARY 25, 2006—DECIDED FEBRUARY 28, 2006
____________
Before POSNER, MANION, and WOOD, Circuit Judges.
POSNER, Circuit Judge. Judith Mendez, 22 years old at
the time of her hearing before the administrative law
judge, is borderline retarded and also suffers from de-
pression; she has never been employed. She appeals from
the judgment of the district court affirming the denial by the
Social Security Administration of her application for
disability benefits. Her composite score on IQ tests has
ranged from 68 to 71; there is no suggestion that she
was “playing dumb” in any of these tests. She has had
several episodes of depression and anxiety (mental illnesses
that are frequently found conjoined), which have been
2 No. 05-2017
treated by the antipsychotic drug Zoloft, occasional psychi-
atric therapy, and one hospitalization, in which after being
diagnosed as suffering from major depression she was
placed on suicide watch. She has pain and weakness in her
legs, causing her to have “a wide-based, slow gait, with a
somewhat shaky and clumsy walk.” Nevertheless the
administrative law judge did not think her disabled. Her
depression and anxiety “seem,” he said, “to be episodic and
of relatively short duration, since she has never followed
through consistently with any counseling services offered
her, and has apparently taken Zoloft only intermittently as
her symptoms recur . . . . [S]he cares for her children [she
has four children, the first born when she was 12 years old,
and no husband] and her personal needs; assists with the
cooking, cleaning, laundry, and shopping; and has no
difficulty getting along with family members, neighbors and
friends . . . . [T]he deficits noted in concentration, persis-
tence or pace during the psychological evaluations are
attributable to her intellectual limitations.” Noting contra-
dictions in her testimony, such as that she slept all day yet
cared for her children, the administrative law judge pro-
nounced her not “particularly credible.”
A section of the “grid” that the Social Security Adminis-
tration uses to streamline the process of determining
disability (which must be total to entitle the claimant to
benefits) provides that the claimant is disabled if she has
an IQ of between 60 and 70 “and a physical or other men-
tal impairment imposing an additional and significant
work-related limitation of function.” 20 C.F.R. Part 404,
Subpart P, App. 1, § 12.05(C). Although an IQ in that
range seems very low, there are several types of job that a
person with such a low IQ can perform, such as cleaning
and janitorial jobs. Anderson v. Sullivan, 925 F.2d 220, 223
(7th Cir. 1991); U.S. Dept. of Labor, Bureau of Labor Statis-
No. 05-2017 3
tics, Occupational Outlook Handbook: 2004-05 Edition 6, 373
(Bulletin 2570, March 2004). IQ scores are not absolute tests
of acuity; a person with an IQ of 70 cannot be said to be half
as smart as a person with an IQ of 140. Intelligence is, in
effect, graded on a curve. Roughly 95 percent of the popula-
tion has an IQ between 70 and 130, which places Mendez
toward the top of the bottom 2.5 percent or so, Joseph D.
Matarazzo, Wechler’s Measurement and Appraisal of Adult
Intelligence 124-25, 128 (5th ed. 1972), but does not indicate
how far her intelligence falls short of that of the average
person. Id. at 126. Generally, an IQ of 70 is considered just
at the borderline of mental retardation. American Psychiat-
ric Association, Diagnostic and Statistical Manual of Mental
Disorders, Text Revision (DSM-IV-TR) 41-43 (4th ed. 2000);
Stedman’s Medical Dictionary 1557 (27th ed. 2000); Medline
Plus Medical Encyclopedia, http://www.nlm.nih.gov/
medlineplus/ency/ article/001912.htm, visited Jan. 30,
2006. That is why the grid requires an additional impair-
ment in order to establish disability. The administrative law
judge did not apply the regulation that we have quoted,
however, because he erroneously stated that “the claimant’s
last IQ scores are all at 70 or above.”
The government argues that the error is irrelevant because
Mendez failed to make a threshold showing that she is
mentally retarded. The regulation on which she relies is in
section 12 of the regulations that list the var-
ious impairments that can support a finding of disability.
Section 12.00(A) states that “Listing 12.05 [mental im-
pairments] contains an introductory paragraph with the
diagnostic description for mental retardation. It also
contains four sets of criteria (paragraphs A through D). If
your impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four sets of
criteria, we will find that your impairment meets the
4 No. 05-2017
listing.” (Mendez relies on C, which we quoted earlier.) The
introductory paragraph of section 12.05, to which section
12.00(A) is referring, states: “Mental retardation refers to
significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demon-
strates 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.” The govern-
ment argues that the effect of these linked passages is that
the administrative law judge must consider not only IQ and
(other) impairments; he must first determine that the
claimant is mentally retarded as defined in section 12.05’s
introductory paragraph. The Eighth Circuit recently rejected
the government’s argument, Maresh v. Barnhart, 431 F.3d
1073, 1075 (8th Cir. 2005), but without discussion.
In defending the administrative law judge’s decision on a
ground that he himself did not mention, the govern-
ment violates the Chenery principle. But it would not help
the government if we overlooked the violation, because
while the regulations do require the administrative law
judge to determine that the claimant’s mental “deficits”
were manifested before the age of 22, there is no ques-
tion that Mendez’s were manifested before then. It
is something of a puzzle that the regulations require
more than valid IQ test results to demonstrate mental
retardation, but the explanation may lie in the fact we noted
earlier that an IQ of 70, which figures prominently in the
criteria for disability based on mental retardation, is at the
borderline between retardation and normal, if low, mental
ability. It is noteworthy that in the wake of the Supreme
Court’s decision holding that it is unconstitutional to
execute retarded murderers, Atkins v. Virginia, 536 U.S. 304(2002), states have adopted criteria for retardation that, like
No. 05-2017 5
the regulation in this case, require besides a low IQ limita-
tions in the skills required in everyday life. E.g., Common-
wealth v. Miller, No. 399 CAP, 2005 Pa. LEXIS 2997, at *14-17
(Pa. Dec. 27, 2005); Ex parte Perkins, 851 So. 2d 453, 456 (Ala.
2003).
So back to the administrative law judge’s error regard-
ing the IQ test results: the error would not be fatal were
it clear that Mendez has no “physical or other mental
impairment imposing an additional and significant work-
related limitation of function,” and indeed the admin-
istrative law judge stated that she did not. We quoted the
main reasons he gave for that conclusion. They are not
adequate. The fact that a psychiatric patient does not follow
through on counseling or take antipsychotic drugs regularly
is a common consequence of being psychotic and is espe-
cially to be expected of a person with a very low IQ. The
administrative law judge himself attributed to her low IQ
“deficits . . . in concentration [and] persistence.” Such
“deficits” are quite likely to cause a psychiatric patient
to respond erratically to treatment directions.
We have cautioned the Social Security Administration
against placing undue weight on a claimant’s household
activities in assessing the claimant’s ability to hold a job
outside the home. Gentle v. Barnhart, 430 F.3d 865, 867 (7th
Cir. 2005); Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir.
2005); Kelley v. Callahan, 133 F.3d 583, 588-89 (8th Cir. 1998);
Smolen v. Chater, 80 F.3d 1273, 1284 n. 7 (9th Cir. 1996).
(Some weight is appropriate. Warner v. Commissioner of
Social Security, 375 F.3d 387, 392 (6th Cir. 2004).) The
pressures, the nature of the work, flexibility in the use of
time, and other aspects of the working environment as well,
often differ dramatically between home and office or factory
or other place of paid work. We do not know
6 No. 05-2017
what Mendez’s “assist[ance]” in performing house-
hold chores amounts to. We do know that she does not (as
the administrative law judge’s opinion may imply) take care
of her four children by herself, in part because she’s worried
about choking the youngest child when she feeds him
because she doesn’t know when to stop the feeding, an
uncertainty that does not augur well for her ability to
perform even the simplest tasks outside the home. You
don’t want someone who doesn’t know when to stop
watering your plants; she is likely to drown them.
The administrative law judge’s finding that Mendez
was not “particularly credible,” whatever exactly that
means, is undermined by his literalism. When a person says
that she sleeps all day, she doesn’t mean it literally; she
means that she is abnormally sleepy and listless and dozes
off frequently. That is what one expects of someone with
severe depression and is consistent with Mendez’s caring
for her children, since she takes care of them with the help
of other people—her mother and her boyfriend (the chil-
dren’s putative father).
The administrative law judge also failed to consider the
totality of Mendez’s impairments, as he was required to
do. Gentle v. Barnhart, supra, 430 F.3d at 868. Besides her low
IQ and her depression, she walks unsteadily as we know,
doubtless in part because of obesity; she is only 5 feet 1 inch
tall but weighs 184 pounds. The administrative law judge
should have considered whether her difficulty in getting
around would interact with her cognitive limitations
and her psychiatric condition to make her incapable of
complying with even simple workplace directives.
The administrative law judge failed to articulate a rea-
soned basis for the denial of benefits. The judgment of the
district court is therefore vacated and the case remanded to
No. 05-2017 7
the Social Security Administration for further proceedings
consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-28-06