Strunk v. Heckler

• Decision Date: 27 April 1984
• Docket Number: No. 82-3081,82-3081
• Citation: 732 F.2d 1357
• Parties: Mary STRUNK, Plaintiff-Appellant, v. Margaret HECKLER, * Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1357

732 F.2d 1357

5 Soc.Sec.Rep.Ser. 79

Mary STRUNK, Plaintiff-Appellant, v. Margaret HECKLER, ^* Secretary of Health and Human

Services, Defendant-Appellee.

No. 82-3081.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 29, 1983.

Decided April 27, 1984.

Jamie L. Weinberg, Bloomington, Ind., for plaintiff-appellant.

Steven J. Plotkin, Dept. of Health & Human Service, Regional Atty., Region V, Chicago, Ill., for defendant-appellee.

Before POSNER, COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

This appeal challenges the Secretary of Health and Human Services' ("Secretary") decision denying the appellant's application for Supplemental Security Income Benefits. We affirm.

I.

Mary Strunk, the plaintiff-appellant, filed an application for Supplemental Security Income ("SSI") pursuant to 42 U.S.C. Sec. 1382(a) in December of 1979 alleging that she was disabled resulting from various medical problems. ¹ At the time of her application, the plaintiff was a 49 year-old female with a second grade education. She is apparently unable to read or write and her past work record consists of only two weeks employment as a hotel housekeeper.

After the denial of her application, the plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). At the hearing, the plaintiff was represented by a paralegal who presented evidence concerning plaintiff's physical and emotional problems through the plaintiff, the plaintiff's daughter and a friend. Because of the plaintiff's testimony concerning her low intelligence level, her nervous condition and the lack of relevant medical evidence supporting the same, the ALJ ordered a psychological and a psychiatric examination. Plaintiff's representative agreed to schedule the psychological examination and an I.Q. test, and the ALJ scheduled a psychiatric examination. These examinations and the I.Q. testing were performed and their results were added to the hearing record. After considering all of the evidence presented with the additional medical evidence, the ALJ found that the plaintiff had "the following impairments: seizure disorder, residuals of fractured ankle, mental retardation, anxiety disorder." In spite of this finding, the ALJ found that "[t]hese impairments, singly and in combination, do not significantly limit the claimant's ability to perform basic work-related functions of our economy" and thus were not of the required severity to warrant a finding of disability entitling her to SSI benefits. After completing the administrative review process, the plaintiff brought this action seeking judicial review of the Secretary's denial of her application, contending that the ALJ's decision was not supported by substantial evidence. The district court affirmed the decision of the Secretary and the plaintiff appeals.

The plaintiff now argues that the ALJ's decision that her impairments did not meet the required standard of severity to substantiate a finding of disability is contrary to the evidence. Our review of the ALJ's finding that Strunk was not disabled is limited to a determination of whether those findings are supported by substantial evidence when considering the record as a whole. Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982). "Substantial evidence" means " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). We must affirm if the record contains substantial evidence to support the ALJ's findings and there has been no error of law. Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.1980); 42 U.S.C. Sec. 405(g).

II.

A.

A claimant is disabled within the meaning of the Social Security Act only if he or she has a severe impairment. 20 C.F.R. Sec. 416.920(c). An impairment is deemed severe if: 1) it is listed as an impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1, or is equal to a listed impairment; and 2) is expected to last for a continuous twelve-month period. 20 C.F.R. Secs. 416.920(d), 416.909. However, the Secretary is only empowered to find that an impairment is severe if it "significantly limit[s] [one's] physical or mental abilities to do basic work activities." 20 C.F.R. Sec. 416.921(a). " 'Basic work activities' are defined as 'the abilities and aptitude necessary to do most jobs'--walking, standing, seeing, carrying out simple instructions, and so forth." Wallschlaeger v. Schweiker, 705 F.2d 191, 197 (7th Cir.1983) (quoting 20 C.F.R. Sec. 416.921(b)). Furthermore, the impairments upon which an SSI application is based "must result from anatomical physiological or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. Sec. 416.908.

B.

The plaintiff's principal argument is that she is entitled to a determination of disability because she qualifies pursuant to the conditions set forth in the Listing of Impairments for mental retardation. The plaintiff's main contention is that she qualifies for this determination because her 65 I.Q., based on intelligence test results, is within the 60-69 range specified in the Social Security Regulations as manifesting mental retardation. The plaintiff has failed to supply this court, nor have we found any case law requiring the Secretary to make a finding of mental retardation based solely upon the results of a standardized intelligence test in its determination of mental retardation. On the contrary, the regulations state:

"The degree of impairment should be determined primarily on the basis of the intelligence level and the medical report. Care should be taken to ascertain that test results are consistent with daily activities and behavior."

20 C.F.R., Part 404, Subpart P, App. 1 Sec. 12.00(B)(4) (emphasis added). Dr. Searle, the psychiatrist at a community mental health center who administered a standardized intelligence test to the plaintiff, made a finding that the plaintiff's I.Q. was below average. This finding was of little value as it did not include the quantum of medical evidence required to document whether the results of the intelligence test were consistent with the plaintiff's daily behavior. Specifically, in connection with her finding that Ms. Strunk's I.Q. was below average, Dr. Searle stated only that she "cannot read or write adequately and is unable to handle money, not knowing if she has been cheated." (Tr. 250). The ALJ analyzed the report and recognized the deficiency in Dr. Searle's report, stating that it was "not accompanied by a narrative psychological report." ²

Dr. Kissel, the psychiatrist who subsequently examined the plaintiff at the request of the Secretary, made the required specific findings regarding plaintiff's mental condition, and extensively discussed her personal and medical history and current lifestyle in support of his findings. Based on his examination he estimated that her basic intellectual capacity was at an I.Q. level of 80-85, in contrast to the results of the intelligence test administered to the plaintiff by Dr. Searle. It is obvious from Dr. Kissel's conclusions regarding the plaintiff's intelligence level that he believed an I.Q. of 65, as determined by Dr. Searle's testing, was inconsistent with the psychiatric exam he administered. Dr. Kissel concluded that the plaintiff had a capacity for further formal education, had adequate emotional and mental capacity to perform in an unskilled job, and that her thinking processes and judgment were sufficient to allow her to manage her own money and he did not diagnose mental retardation.

The record also reveals that Dr. Wisen, who conducted a thorough neurological examination of the plaintiff at the Secretary's request relative to her claim of epilepsy, pointed out in his report of the interview and his evaluation that while the plaintiff claimed not to know what year it was or to be able to add 3 + 3, she was able to discuss the fact that her rent of $150 per month was too high. Dr. Wisen noted that the plaintiff's "seeming 'inability' to answer simple questions is a contradiction to her normal ability of social interactions and conversation." (Tr. 237). It was Dr. Wisen's opinion that the plaintiff's answers to questions testing her fund of knowledge reflected "deliberate fabrication" and he thus concluded that she was a "pathological liar." (Tr. 237). Since the record contains conflicting medical evidence concerning the plaintiff's mental retardation and her credibility, the validity of her intelligence test scores and her testimony are questionable. After an independent review of the record of the evidence presented to the ALJ we hold that there is substantial evidence in the record to support his conclusion that there is more than sufficient evidence to find the plaintiff not mentally retarded to a degree sufficient to constitute a severe impairment within the meaning of the Social Security Act.

C.

The ALJ also reasoned that even if the plaintiff's I.Q. was within the 60-69 range, she still would not be entitled to benefits as he found that she suffered from no other physical or mental impairment that imposed a significant work-related limitation of function as required by 20 C.F.R. Part 404, Subpart P, App. 1, Sec. 12.05(C). In this regard the plaintiff's epilepsy claim was primarily based on the testimony of witnesses who had allegedly observed her seizure episodes in the past. With regard to the medical evidence in support of her claim of frequent seizures, Dr. Waldo, a treating physician, wrote on an undated prescription blank that "Mrs. Strunk has an established diagnosis of epilepsy." He also stated in a hospital discharge summary for ingesting an overdose of epilepsy medication that Mrs. Strunk was a "known epileptic." Dr. Austin, another physician who treated ...