Chunn v. Barnhart

• Decision Date: 11 February 2005
• Docket Number: No. 04-2340.,04-2340.
• Citation: 397 F.3d 667
• Parties: Laverne R. CHUNN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

397 F.3d 667

Laverne R. CHUNN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee.

No. 04-2340.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2005.

Filed: February 11, 2005.

E. Gregory Wallace, argued, Buies Creek, NC (Anthony W. Bartels, Jonesboro, AR, on the brief), for appellant.

Richard A. Gilbert, Jr., argued, Social Security Admin., Dallas, TX, for appellee.

Before LOKEN, Chief Judge, and HANSEN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Laverne Chunn applied for and was denied disability insurance benefits and supplemental security income. After receiving an unfavorable decision from the administrative law judge (ALJ) and being denied review by the Appeals Council, she sought judicial review of the Commissioner's determination that she was not disabled within the meaning of the Social Security Act. The district court dismissed Chunn's case with prejudice, affirming the Commissioner's decision. Chunn appeals, arguing that she meets the regulatory definition for mental retardation and that the vocational expert was asked a misleading hypothetical. We reverse and remand.

Chunn was born in 1977 and has a high school education that focused on special education and resource classes. She has worked in the past as an operator of a knitting machine in a factory and as a food preparer for a restaurant buffet. She says she was fired from the factory job because she missed too many days after becoming ill from breathing the lint produced at her workplace, and she left the restaurant job because she was bothered by morning sickness when pregnant. Chunn contends that she is disabled because she is mentally retarded and has breathing difficulties and speech problems.

Upon receiving Chunn's application, the Commissioner ordered an intellectual assessment and evaluation of adaptive functioning. Mary Ellen Ziolkow, Ph.D., met with Chunn and administered the Wechsler Adult Intelligence Scale-Revised. Chunn's responses resulted in a verbal IQ score of 54, a performance IQ score of 48, and a full scale IQ score of 46. As Dr. Ziolkow noted, this full scale score falls within the moderate retardation range of the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). Dr. Ziolkow stated in her report that in her opinion Chunn did not appear very well motivated and that her test results probably underestimated her level of intellectual functioning. She concluded that Chunn probably falls in the mild retardation range. The DSM-IV considers IQ scores from 55 to 70 to be within the mild retardation range.

Dr. Ziolkow also evaluated Chunn's communication skills, social functioning, physical development, concentration, and personal responsibility. She observed that Chunn's language development and comprehension were below average. In evaluating her social functioning, Dr. Ziolkow noted that Chunn has no friends and is separated from her husband and does not know why. She lives with and cares for her two children and attends church although she is shy about it. Dr. Ziolkow also reported that Chunn cares for her own personal needs and does the cleaning, cooking, and laundry for the household by herself. Someone takes Chunn to the store, but she does her own shopping. Chunn reported that she can make change and can use a checkbook, but her account was overdrawn and closed. In Dr. Ziolkow's assessment, Chunn's ability to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers, and work pressure is below average to poor. Dr. Ziolkow concluded that Chunn's adaptive functioning is consistent with an IQ at the low end of the mild retardation range.

After Chunn's application was denied initially and on reconsideration, she received a hearing. The ALJ heard testimony from Chunn, who was unrepresented, and a vocational expert. Chunn testified that she cannot read well, can write "a little bit," cannot add or subtract big numbers, can count money but not "backwards," and has trouble understanding others and being understood herself. She also described respiratory problems she has had. She testified that she spends her days cleaning her home and looking for part time work at fast food restaurants while her children are in day care.

In the course of his decision the ALJ engaged in the familiar five step analysis outlined in 20 C.F.R. §§ 404.1520 and 416.920. At the first step he found that Chunn had not engaged in substantial gainful activity after her alleged onset date of September 29, 2000. Next, he found that Chunn's impairments, which he characterized as "mild-borderline mental retardation" and "asthma well controlled," were severe within the meaning of the Social Security regulations. Third, he found that her impairments do not meet or equal one of the impairments listed in the regulations as requiring a finding of disability.

The ALJ then evaluated Chunn's residual functional capacity for use in steps four and five of the disability analysis. He concluded that she has no exertional limitations but that "on the basis of a history of borderline intellectual functioning and intermittent seasonal sinus allergies the claimant would be limited to entry-level unskilled work activity that would not expose the claimant to chemical odors or fumes." The ALJ further stated that Chunn has the ability to work well with the public and supervisors and can make change and count money. He commented that in spite of Chunn's limited intellectual abilities, she has functioned independently in daily activities and has successfully worked at the substantial gainful level. He also noted that there has been no deterioration in Chunn's mental capacity.

The ALJ's determinations in steps four and five were based on the testimony of the vocational expert. The ALJ had described to the expert a hypothetical person with the following characteristics: borderline intellect and seasonal allergies; cannot work in extreme temperatures or with heavy chemicals, dust, or fumes; can perform simple unskilled work and read and follow simple concrete instructions; can work with the public, coworkers, and supervisors without restriction; can meet and greet and make change; and cannot do telemarketing jobs because of speech problems. The vocational expert testified that the person described could not do the work Chunn had done in the factory or restaurant. The ALJ relied on this testimony to determine at step four that Chunn could not do her past relevant work. The vocational expert also testified that the person described could work as a cafeteria attendant or cashier and that this work exists in significant numbers in the national economy. The ALJ relied on this testimony to determine at step five that Chunn is not disabled because she could perform other work in...