Mendez v. Barnhart

• Decision Date: 28 February 2006
• Docket Number: No. 05-2017.,05-2017.
• Citation: 439 F.3d 360
• Parties: Judith MENDEZ, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

439 F.3d 360

Judith MENDEZ, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Defendant-Appellee.

No. 05-2017.

United States Court of Appeals, Seventh Circuit.

Argued January 25, 2006.

Decided February 28, 2006.

Frederick J. Daley, Jr., Barbara H. Borowski (argued), Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff-Appellant.

Kimberly S. Cromer (argued), Social Security Administration Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

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 depression; 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 treated by the antipsychotic drug Zoloft, occasional psychiatric 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, persistence or pace during the psychological evaluations are attributable to her intellectual limitations." Noting contradictions in her testimony, such as that she slept all day yet cared for her children, the administrative law judge pronounced her not "particularly credible."

A section of the "grid" that the Social Security Administration 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 mental 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 Statistics, 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 population 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 Psychiatric 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 impairment 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 various impairments that can support a finding of disability. Section 12.00(A) states that "Listing 12.05 [mental impairments] 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 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 demonstrates 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 government 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...