Robin Gasaway v. Kenneth Apfel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3054
___________
Robin Gasaway, *
*
Appellant, *
* Petition for Panel Rehearing.
v. *
*
Kenneth S. Apfel, Commissioner, *
Social Security Administration, *
*
Appellee. *
___________
Submitted: October 19, 1999
Filed: November 16, 1999
___________
Before WOLLMAN, Chief Judge, and LOKEN and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
A full description of the facts of this case appears in Gasaway v. Apfel, 187 F.3d
840 (8th Cir. 1999). Briefly, we vacated the opinion of the district court and remanded
the case for development of the record, id. at 844-45, with respect to whether
Ms. Gasaway currently possesses a "valid verbal, performance or full scale IQ of 60
through 70," see 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05C; see also 20
C.F.R. § 404.1520(d), § 404.1520a(c)(2).
In its petition for panel rehearing, the Social Security Administration contends
that on remand the record must also be developed with respect to whether
Ms. Gasaway manifested "deficits in adaptive behavior," see 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.05, before she was 22 years old. We grant the petition for
panel rehearing and agree that the record must be developed as the Social Security
Administration requests.
The overall introduction to the sections on the discrete mental impairments states
that "[s]pecific signs and symptoms under any of the [categories of discrete mental
impairments] cannot be considered in isolation from the description of the mental
disorder contained at the beginning of each ... category" of mental impairments. See
id., § 12.00A. The definition at the beginning of the category of "mental retardation"
is "a significantly subaverage general intellectual functioning with deficits in adaptive
behavior initially manifested during the developmental period (before age 22)." See id.,
§ 12.05.
We therefore direct that, on remand, the record must be developed with respect
both to whether Ms. Gasaway suffered deficits in adaptive behavior before age 22, see
id., and to whether Ms. Gasaway currently possesses some type of a valid IQ of 70 or
less, see id., § 12.05C.
LOKEN, Circuit Judge, concurring in part and dissenting in part.
I adhere to my prior dissent but agree that, if the case is to be remanded, the
“deficits in adaptive behavior” issue should be open to further development on remand.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-