Disability Law Blog

Chunn v. Barnhart, No. 04-2340, __F.3d__ (8th Cir. Feb. 11, 2005)

The Eighth Circuit, in an opinion by Circuit Judge Diana E. Murphy, reverses and remands a step 5 denial of a concurrent claim for benefits. Ms. Chunn alleged that she met listing 12.05C because she is mentally retarded and has additional and significant work-related limitations caused by sinus problems, allergies and asthma. A consultative examiner found that she had a verbal IQ of 54, performance IQ of 48 and full scale IQ of 46 but that the test results probably underestimated her intellectual functioning since she didn't appeared very well-motivated. The psychologist concluded that her scores probably fell in the mild retardation range (55 to 70 per the DSM-IV) and that an IQ at the low end of the mild mental retardation range was consistent with her assessment of Ms. Chunn's adaptive functioning.

The ALJ did not address 12.05C at step 3; rather, he characterized Ms. Chunn's limitations as "mild-borderline retardation" or "borderline intellectual functioning."

. . . the ALJ did not explicitly reject the psychologist's opinion, much less explain why her opinion should not be relied on. The Commissioner defends the ALJ's substitution of his lay opinion for that of the expert by arguing that he had to look at Chunn's activities to determine her mental capacity because she had not given her best efforts when taking the tests. This argument does not adequately consider the fact that Dr. Ziolkow also took Chunn's activities into account when forming her expert opinion. She might not have known about Chunn's past work at the factory, but that alone would not completely undercut an opinion which considered many aspects of Chunn's adaptive functioning. Moreover, the ALJ's decision fails to explain how Chunn's activities and behaviors are inconsistent with Dr. Ziolkow's characterization of her mental capacity.

Since the ALJ failed to support his step 3 finding, the case is remanded for further proceedings.

Johnson v. Barnhart, No. 03-3563 (8th Cir. Dec. 9, 2004)

The Eighth Circuit, in an opinion by Circuit Judge Michael J. Melloy, affirms a step 4 denial of SSI benfits. IQ testing in 1998 and 2001 indicated mild mental retardation but the examiner did not consider the test results reliable. Other tests suggested strong evidence of malingering:

In his first report from 1998, Dr. Maddock stated that Johnson’s Wahler Physical Symptoms Inventory score showed strong indications of malingering and that Johnson answered items on the Minnesota Multiphasic Personality Inventory-2 randomly. Dr. Maddock’s September 2001 report also noted that Johnson’s behavior showed indications that he answered randomly to many items without regard to content. Dr. Maddock concluded that little or no weight should be given to the information.

The Computerized Assessment of Response Bias verified malingering and response bias. Dr. Maddox stated that Johnson “wanted to receive or continue benefits[,] and [that Johnson] felt the best way to do that would be to embellish or exaggerate a disability,” and that Johnson was not open and honest during his interview. Finally, the Weschler Memory Scale-Revised presented scores inconsistent with other test scores and with Johnson’s complaints of a poor memory (they showed a strong memory).

The Court concludes that ample evidence supported the ALJ's finding that Johnson did not have valid IQ tests and that he didn't provide evidence of deficits in adaptive functioning.

(For the Curious, here's a link to the appellant's brief.)

Domingue v. Barnhart, No. 04-30197, __F.3d__ (5th Cir. Oct. 18, 2004)

The Fifth Circuit, in a very short per curiam decision, affirms a denial of SSI and Child Disability benefits. The Court says substantial evidence supported the ALJ's conclusion that claimant's depression was not a severe impairment. Without addressing the ALJ's duty to articulate, the Court also found that the claimant's impairments did not satisfy the requirements of 12.05C and that the ALJ's hypothetical to the VE was adequate. Difficult to determine from this decision (a) what arguments the appellant actually presented, (b) what the ALJ actually did in his or her decision and (c) why the Court published this opinion.

Acquiescence Ruling 03-1(7): Blakes v. Barnhart, 331 F.3d 565 (7th Cir. 2003) and 12.05/112.05

SSA has published an Acquiescence Ruling in the case of Blakes v. Barnhart, 331 F.3d 565 (7th Cir. 2003). In Blakes, the Court held that the revised version of listing 112.05 (published August 21, 2000 and effective September 20, 2000) required that the claimant's impariment satisfy the diagnostic description of the introductory paragraph to the listing but that the earlier version of the listing did not. SSA's interpretation differs:

Our interpretation of the pre-September 20, 2000, version of Listings 12.05 and 112.05 is the same as our interpretation of the current listings. The diagnostic description of mental retardation contained in the introductory paragraph of these Listings, or "capsule definition,'' is an integral part of their criteria, as in all of the mental disorders listings.

Other bases for disagreement are included in the AR. The new ruling applies only to cases in Indiana, Illinois and Wisconsin.

Available in text and pdf formats.

68 FR 74279-74280 (Dec. 23, 2003)

Adaptive functioning and 12.05C

From Justoneanalyst on the Connect Board comes this helpful post:

"An internal memo now being circulated offers a kind of clarification about the extent of deficits in adaptive functioning required for 12.05C. I offer three observations about what the memo says:

• As a conceptual framework, it's about the best we're going to be able to do short of revising the listing.
• It's not new. It's a restatement of policy first circulated in 3/98 and later published in the FR in 2/02.
• Even with this not-new clarification, most cases involving 12.05C as it applies to adults well past age 22 are still going to be marked by much uncertainty about adaptive functioning, at least from the perspective of the lay adjudicator.

First, here's one paragraph from the new statement circulated today:

The diagnostic description of MR also requires "deficits in adaptive functioning." However, we do not specify the degree of deficits of adaptive functioning required to satisfy this component of the diagnostic description. Therefore, as we explain in 20 CFR §§ 404.1525(c) and 416.925(c), "[i]f the medical findings needed to support the diagnosis are not given in the introduction or elsewhere in the listing, the diagnosis must still be established on the basis of medically acceptable clinical and laboratory diagnostic techniques." In this case, we look to the diagnostic manuals of the American Association on Mental Retardation, the American Psychiatric Association, and the American Psychological Association. They all generally define deficits of behavior consistent with MR as performance that is at least 2 standard deviations below the mean on standardized measures of adaptive behavior. (The DSM-IV-TR requires "significant limitations" in at least 2 of 10 sill areas.)

But let's compare the above with the 3/98 publication Childhood Disability Evaluation Issues (SSA Pub. No. 64-076). After expressly noting that 112.05C doesn't specify the degree of deficits in adaptive functioning, this publication cites 20 CFR 416.925c), just as does the above. Then it goes on as follows:

[W]e look to the standards established by the professional community in defining the degree of deficits in adaptive functioning, as well as the methods for documenting those deficits. The three most prominent professional organizations which promulgate methods and criteria for establishing the diagnosis of MR are the American Association on Mental Retardation, the American Psychological Association, and the American Psychiatric Association. The AAMR manual, the APA manual and the DSM-IV provide qualitative and quantitative definitions of adaptive functioning.

There's more. In 4/02 SSA published technical revisions to the listings. The agency declined to adopt a suggestion that it use the DSM-IV definition for mental retardation (67 FR 20022). It gave a quick and dirty review of how its own definition compared with that of the AAMR, the APA, and the DSM-IV, both in terms of IQ scores and deficits in adaptive functioning. The agency then ended its response to this particular suggestion with this paragraph:

The definition of MR used by SSA in the listings is not restricted to diagnostic uses alone, nor does it seek to endorse the methodology of one professional organization over another. While capturing the essence of the definitions used by the professional organizations, it also is used to determine eligibility for disability benefits. SSA's definition establishes the necessary elements, while allowing use of any of the measurement methods recognized and endorsed by the professional organizations.

The important part of this in the last phrase, "use of any of the measurement methods recognized and endorsed by the professional organizations." This is, it seems to me, equivalent to where we started, about , how SSA will "look to the diagnostic manuals of the American Association on Mental Retardation, the American Psychiatric Association, and the American Psychological Association." That is, the required degree of deficits in adaptive functioning is the degree that is "medically acceptable" by these organizations (and perhaps others as well) to establish the diagnostic presence of mental retardation.

But what precisely does this mean in practical terms? Especially, what does it mean for this common situation:

• The record does not include the results, for an adult, of any "standardized measures of adaptive behavior," and
• There's no prospect of securing any such evidence.

Well, in this circumstance the AAMR endorse the use of clinical judgement (AAMR manual, 10th edition, pp. 93 ff.). I expect the other professional organizations do the same. But this just pushes the mystery one step further back--what's "clinical judgement"?

So far as I can understand, clinical judgment is what the clinician exercises during what the National Research Committee refers to as the results of an "unstructured interview." The committee goes on to say this, in Mental Retardation, Determining Eligibility for Social Security Benefits, at p. 156:

In an unstructured interview, the clinician applies personal, experience-based clinical norms to the adaptive behavior assessment. The advantage of the method is that if frees the clinician from using a set of criteria that may be seen as restrictive. The disadvantage is that each clinician imposes his or her own subjective criteria, a process that threatens both the reliability and the validity of the assessment.

So in the end, where are we? No so very far from where we started."