Lamont D. Johnson v. Nancy A. Berryhill ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 24, 2019
Decided February 1, 2019
Before
DANIEL A. MANION, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-2087
LAMONT D. JOHNSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v. No. 1:16-cv-01439-TWP-DML
NANCY A. BERRYHILL, Tanya Walton Pratt,
Acting Commissioner of Social Security, Judge.
Defendant-Appellee.
ORDER
Lamont Johnson applied for supplemental security income based on a mental
impairment. An administrative law judge denied benefits after finding that Johnson did
not have the deficits in adaptive functioning necessary to meet the intellectual disability
Listing. The ALJ concluded that Johnson could perform unskilled work at a medium
exertional level, with certain limitations. The district court upheld the ALJ’s decision.
Because substantial evidence supports the ALJ’s determination, we affirm.
No. 18-2087 Page 2
I
Johnson, now 38 years old, underwent several intellectual-functioning
examinations during elementary and junior high school. For example, in 1988, at age 8,
a school psychologist administered a test and determined that Johnson’s IQ was 73 and
therefore in the “very low” category. When Johnson was 12, he received a verbal IQ
score of 65, a performance IQ score of 81, and a full-scale IQ score of 71. Just two
months later, under the Vineland Adaptive Behavior Scale (VABS), which measures
personal and social skills, Johnson obtained a composite score of 56, nearly three
standard deviations below the mean. That same year, Johnson had a 3.4 grade point
average in his special-education classes.
In 2006, Johnson applied, unsuccessfully, for supplemental security income
based on illiteracy. He saw Dr. Herbert Henry, a consulting psychologist, who
administered a mental-status examination and supervised an IQ test in which Johnson
had a 66 verbal IQ score, a 70 performance IQ score, and a 65 full-scale IQ score. At that
exam, Johnson reported that he could not read, spell, or write, and that he had difficulty
managing his money. But Johnson also stated that he knew how to drive (although he
could not pass the written exam to get a license), could attend to his hygiene and dress
himself without assistance, meet with friends, and play basketball.
In April 2013, at age 33, Johnson, for the third time, applied for supplemental
security income based on illiteracy, alleging an onset date of June 2007. The following
year, Dr. Jason Hankee, an agency examining psychologist, met with Johnson and noted
that “in terms of adaptive functioning,” Johnson reported his capability of maintaining
personal hygiene, cleaning, using the microwave, and buying simple foods from the
store. Dr. Hankee also observed that Johnson told him that he “needs help managing
the finances.” Johnson obtained a full-scale IQ score of 62, which was in the “extremely
low” category and the 1 percentile rank. Dr. Hankee diagnosed him with “mild
intellectual disability.”
In November 2014, multiple witnesses testified at a hearing before an ALJ.
Johnson testified about only his physical limitations, which are not at issue on appeal.
Dr. James Brooks, a psychological expert, thought that “the most consistent way to
evaluate” Johnson’s mental status was under Listing 12.05, a regulation for intellectual
disabilities that, if met, would qualify Johnson for benefits automatically. But even after
reviewing Johnson’s low IQ scores and reports of illiteracy, Dr. Brooks believed that
Johnson could still perform simple repetitive tasks for 40 hours a week and occasionally
and superficially interact with others. Finally, a vocational expert opined that a
No. 18-2087 Page 3
hypothetical illiterate person performing medium work with simple and repetitive
instructions and superficial interactions with others could work as a dishwasher,
hospital cleaner, or janitor.
The ALJ conducted the familiar five-step analysis, see 20 C.F.R. § 404.1520(a), and
denied benefits. The ALJ concluded that Johnson had not been engaged in substantial
gainful activity since his alleged onset date (step one) and that his borderline
intellectual functioning was severe (step two). At step three, the ALJ determined that
Johnson did not meet or medically equal Listing 12.05 for intellectual disabilities. See 20
C.F.R. pt. 404, subpt. P, app. 1, pt. A, § 12.05 (2016). The ALJ explained that though
Johnson’s intellectual functioning was subaverage during his developmental period,
there was no support for his contention that he had (either during the developmental
period or currently) the required deficits in adaptive functioning, which is essentially
the ability to navigate daily challenges. See Novy v. Astrue, 497 F.3d 708, 710 (7th Cir.
2007). After all, the ALJ noted, Johnson could care for his personal hygiene, prepare
simple meals, and had a history of performing unskilled work.
The ALJ then decided that Johnson had the residual functional capacity to
perform medium work with simple and repetitive tasks and superficial or occasional
interaction with others. After finding that Johnson had no past relevant work (step
four), the ALJ concluded that he could work as a dishwasher, hospital cleaner, or janitor
(step five). Therefore, he was not disabled. The Appeals Council denied Johnson’s
request for review.
Johnson sought judicial review and moved for summary judgment, arguing that
substantial evidence did not support the ALJ’s finding that he lacked the required
adaptive functioning deficits to meet Listing 12.05. But the district court concluded that
the ALJ had adequately considered Johnson’s intellectual abilities and properly ruled
that he did not meet the Listing. Johnson appealed.
II
On appeal, Johnson contends that substantial evidence does not support the
ALJ’s finding that he did not meet the requirements for intellectual disability under
Listing 12.05(C), which has since been repealed but was in effect when the ALJ rendered
his decision. The Listing requires that the claimant have a: (1) significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially
manifesting during the developmental period (ages 0–22); (2) valid verbal, performance,
or full-scale IQ of 60 through 70; and (3) physical or other mental impairment imposing
No. 18-2087 Page 4
an additional and significant work-related limitation of function. See 20 C.F.R. pt. 404,
subpt. P, app. 1, pt. A, § 12.05 (2016). Specifically, Johnson challenges the ALJ’s decision
that he did not meet the first requirement of deficient adaptive functioning, which is the
“inability to cope with the challenges of ordinary everyday life.” Novy, 497 F.3d at 710.
First, Johnson argues that the ALJ erred by ignoring his VABS score from 1992,
which was nearly three standard deviations below the mean. While an ALJ, of course,
may not ignore an entire line of evidence contrary to his conclusion, see Arnett v. Astrue,
676 F.3d 586, 592 (7th Cir. 2012), he need not mention each piece of evidence, see Denton
v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). Here, the ALJ did not ignore an entire line of
evidence favorable to Johnson. To the contrary, the ALJ noted Johnson’s teacher’s
statements that he was easily distracted and lacked social and communication skills;
recognized Johnson’s subaverage test scores in 1992, 2007, and 2014; and took account
of diagnoses from multiple doctors that he had mild or borderline intellectual disability.
True, the ALJ did not discuss the VABS score, but test scores—especially old test
scores (here from 1992)—are not conclusive evidence of adaptive behavior deficits when
there is other, more recent evidence in the record about a claimant’s daily activities and
behavior. Novy, 497 F.3d at 710. The ALJ cited such evidence, including Johnson’s
reports that he could maintain personal hygiene, prepare simple meals, and perform
unskilled work, and Dr. Brooks’s opinion that Johnson could complete simple repetitive
tasks. Moreover, the VABS score is at least 26 years old and it is difficult to see how an
ALJ could have thought that it satisfied Johnson’s burden to prove that he had current
adaptive deficiencies that met the Listing. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 352 (7th Cir. 2005). The ALJ built a logical bridge between evidence in the record
and his conclusion.
Next, Johnson contends that the ALJ erred by disregarding the opinions of
Dr. Henry, Dr. Hankee, and Dr. Brooks, who, he asserts, opined that he had the
necessary deficits in adaptive functioning when they diagnosed him with various
degrees of intellectual disability.
But the doctors did not opine that Johnson lacked adaptive functioning within
the meaning of Listing 12.05. As the Commissioner notes, the opinions of Drs. Henry
and Hankee had nothing to do with whether Johnson had adaptive functioning deficits
that were severe enough to meet Listing 12.05. Dr. Henry observed that Johnson had IQ
scores in the “mild mental retardation range,” “extremely low” range, and the
“borderline” range. Dr. Hankee noted Johnson’s reports about adaptive functioning but
opined only that Johnson had “mild intellectual disability” because of his “extremely
No. 18-2087 Page 5
low” IQ. These are diagnoses and descriptors related to intelligence, not opinions about
adaptive functioning. A person can have a low IQ and still be able to work, which is
why evidence of deficient adaptive functioning is required for a person to be considered
legally disabled. See Hall v. Florida, 572 U.S. 701, 722 (2014); Novy, 497 F.3d at 709.
In contrast, Dr. Brooks opined about adaptive functioning, and his opinion did
not identify substantial deficits. Dr. Brooks determined that Johnson could perform
simple repetitive tasks and have occasional contact with others. Far from ignoring this
opinion, the ALJ relied upon it in deciding that Johnson did not have enough adaptive
functioning deficits to meet the Listing.
Johnson next contends that the ALJ erred by not using the Diagnostic and
Statistical Manual of Mental Disorders-Fourth Edition-Text Revision’s (DSM-IV-TR)
diagnostic tool to determine whether he had the necessary deficits in adaptive
functioning. Johnson asserts that he satisfied the criteria laid out in the DSM-IV-TR
because he was deficient in two areas—academic skills and handling money—so the
ALJ should have classified him as meeting the Listing.
But when this court defined deficits in adaptive functioning as the “inability to
cope with the challenges of ordinary everyday life,” it did not require an ALJ to use a
specific set of criteria like those found in the DSM-IV-TR when determining whether a
claimant has necessary deficiencies under the Listing. See Novy, 497 F.3d at 710. Johnson
acknowledges this and points to no other circuit that has established such an obligation.
Further, even if Johnson satisfied the DSM-IV-TR test, it is still up to the Commissioner
to decide whether he is legally disabled. See 20 C.F.R. § 404.1527(d)(2). The jobs
identified by the vocational expert—dishwasher, hospital cleaner, and janitor—do not
require academic skills or handling money. The ALJ determined that Johnson did not
have the required deficits because he could maintain his hygiene, prepare simple meals,
perform unskilled work, complete simple repetitive tasks and have occasional contact
with others. Contrary to Johnson’s characterization, this was not a “non-medical,
gestalt-like test.” The ALJ examined Johnson’s ability to cope with the challenges of
daily life, so he applied the correct standard under Novy, 497 F.3d at 710.
AFFIRMED