Brown v. Secretary of Health and Human Services

• Citation: 948 F.2d 268
• Decision Date: 01 November 1991
• Docket Number: No. 91-3091,91-3091
• Parties: , Unempl.Ins.Rep. (CCH) P 16294A, 2 NDLR P 134 Frank BROWN, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 268

948 F.2d 268

35 Soc.Sec.Rep.Ser. 421, Unempl.Ins.Rep. (CCH) P 16294A,

2 NDLR P 134

Frank BROWN, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 91-3091.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 20, 1991.

Decided Nov. 1, 1991.

John A. Cervay (argued and briefed), Dayton, Ohio, for plaintiff-appellant.

Leslye E. Jones (argued and briefed), John A. Morrissey, Dept. of Health and Human Services, Office of the General Counsel, Region V, Chicago, Ill., Nicholas J. Pantel, Asst. U.S. Atty., Cincinnati, Ohio, Joseph E. Kane, Asst. U.S. Atty., Columbus, Ohio, for defendant-appellee.

Before MERRITT, Chief Judge, KENNEDY, Circuit Judge, HARVEY, District Judge. ^*

MERRITT, Chief Judge.

Plaintiff Frank Brown appeals from the District Court's decision that plaintiff is not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 405(g). Specifically, plaintiff challenges the lower court's finding that his full scale I.Q. score of 68 was not valid for purposes of qualifying him for benefits pursuant to 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (C). For the reasons set forth below, we REVERSE and REMAND for further proceedings.

Section 12.05 C of Appendix One to the Secretary's regulations governing disability determinations sets forth the standard plaintiff must meet to be eligible for benefits when plaintiff's disability is based, in part or in whole, upon a claim of mental retardation. That section provides that the listed impairment of "mental retardation" meets the required level of severity when the claimant has "a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." Section 12.00 D of the Appendix provides that "where more than one IQ is customarily derived from the test administered ... the lowest of these is used in conjunction with listing 12.05," (emphasis added). "[I]t must be noted that on the [Wechsler Adult Intelligence Scale (WAIS) ], for example, IQs of 70 and below are characteristic of approximately the lowest 2 percent of the general population." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00 D.

Section 12.00 D requires that an I.Q. score be valid. The I.Q. score must reflect the plaintiff's true abilities as demonstrated by his or her performance at work, household management and social functioning. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 B-C. The regulations do not limit the question of validity to test results alone in isolation from other factors. In assessing the validity of a claimant's I.Q., "[i]nformation from both medical and nonmedical sources may be used to obtain detailed descriptions of the individual's activities of daily living; social functioning; concentration, persistance and pace; or ability to tolerate increased mental demands (stress)." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 D.

On appeal, Mr. Brown challenges the District Court's finding that there is substantial evidence to support the ALJ's rejection of Mr. Brown's I.Q. scores. Claimant's full-scale I.Q. of 68 places him within the range of Listing 12.05 C. The Secretary, however, argues that Mr. Brown's I.Q. scores should be deemed invalid. The Secretary claims that a full-scale I.Q. score of 68 is inconsistent with Mr. Brown's functional abilities. In support of his argument, the Secretary points to the following facts: Mr. Brown is able to use public transit; he has a driver's license; he visits friends; he is able to make change at a grocery store; he can do his own laundry and clean his room; ¹ he completed the sixth grade; ² he has a limited level of reading comprehension (Mr. Brown stated that he can follow a road atlas, and a friend testified she had seen him reading a newspaper); ³ and as a truck driver, Mr. Brown recorded mileage, the hours he worked, and the places he drove.

We do not deem these facts to be inconsistent with a valid test I.Q. of 68, and the Secretary offers no empirical evidence in support of this conclusion.

The regulations state that "[i]n cases involving impaired intellectual functioning, a standardized intelligence test, e.g., the WAIS, should be administered and interpreted by a psychologist or psychiatrist qualified by training and experience to perform such an evaluation." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00 D. Claimant complied with the regulations. The regulations require only that the lowest I.Q. score be used in conjunction with Listing 12.05 C. This was done. (In fact, two of claimant's three scores from the WAIS-Revised exam fall within the range of scores signifying mental retardation under the regulations.) The regulations specify that I.Q. scores ranging from "60 through 70" qualify an individual as mentally retarded. The Diagnostic and Statistical Manual of Mental Disorders (3d ed. 1987) ("DSM-III-R") distinguishes between four degrees of severity of intellectual impairment: mild, moderate, severe, and profound. I.Q. levels in the range of "50-55 to approx. 70" are labeled as "Mild Mental Retardation." DSM-III-R describes mild mental retardation thus:

Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of "educable." This group constitutes the largest segment of those with the disorder--about 85%. People with this level of Mental Retardation typically develop social and communication skills during the...