B. Medical Evidence
On March 27, 1997, Dr. William R. Burwell performed an
"evaluation of cognitive abilities," and administered the
Wechsler Intelligence Scale for Children, Third Edition
("WISC-III"). (R. at 174.) The test yielded IQ scores of 71
(verbal), 62 (performance) and 64 (full scale). (R. at 175.) The
verbal score is in the borderline intelligence range, and the
other two scores are in the retarded range. (Id.) Dr. Burwell
concluded that Lemanda functions in the mild range of mental
retardation, and has difficulty with reading, visual-spatial
organization, visual concentration and fund of information. (R.
at 176.) He stated that the results of his examination were
indicative of her present level of functioning. (R. at 176.)
On July 21, 1997, Dr. Harley J. Rubens performed a psychiatric
evaluation of the claimant. (R. at 184.) Prior to the
examination, Dr. Rubens reviewed Dr. Burwell's report. (Id.)
Dr. Rubens diagnosed Lemanda with a "Situational Adjustment
Disorder with Disorder of Mood and Conduct" and a "Developmental
Reading Disorder." (R. at 186.) Dr. Rubens explained that his
report was different from Dr. Burwell's in that it was "not as
detailed in the academic or testing type area, [and] would
include that the patient was having some difficulties of mood."
(R. at 185.) Dr. Rubens made no indication that he disagreed with
Dr. Burwell's diagnosis of mild mental retardation, or that the
IQ scores were invalid.
Dr. Remedios Sales, a family practitioner, submitted a letter
dated January 9, 1998, stating that Lemanda "has a learning
disability with severe short term and long term memory deficiency
and is psychologically and emotionally handicapped due to a past
history of neglect and abuse." (R. at 194.) Dr. Sales' care of
Lemanda has been limited to physical examinations and
immunizations. (Id.) Dr. Sales made no indication that she had
performed any psychiatric or intelligence tests on the claimant.
Dr. Carl Hermsmeyer, Ph.D. reviewed the documents in Lemanda's
file on July 29, 1997, but did not examine Lemanda herself. Dr.
Hermsmeyer's form states that he used Dr. Ruben's psychiatric
report and Dr. Sales' letter as sources. (R. at 191.) Dr.
Hermsmeyer refers to "borderline IQ scores" but does not mention
Dr. Burwell's report. Dr. Hermsmeyer did not indicate that he
perceived the IQ scores he reviewed to be invalid or inaccurate.
Dr. Hermsmeyer determined that Lemanda had a marked limitation in
cognitive/communicative functions, but found no evidence of
limitation in other areas. (R. at 189.) The form acknowledges the
diagnosis of situational mood disorder, and states: "It is not
felt that the claimant's conditions are of a disabling nature."
(R. at 191.) Dr. Hermsmeyer determined that Lemanda had severe
impairments which did not meet or equal the severity of a listed
requirement. (R. at 188.)
Lemanda is enrolled in an Individualized Education Program at
Mount Vernon Elementary School because she is considered to be
learning disabled. (R. at 155-73.) A May 20, 1997 evaluation
indicated that Lemanda's reading skills were at a first grade
level, her math skills were at a fourth grade level, and her
spelling was at the kindergarten level. (R. at 157.) At that
time, Lemanda was eleven years old. Her teacher, Kathleen
Roberts, confirmed that Lemanda experiences severe limitations in
the classroom, that she represses her feelings, and that she has
difficulty comprehending what she reads or is told. (R. at
Lemanda's therapist, Suzanne Bogue, concurs that Lemanda has
learning disabilities, with "severe short term and long term
memory deficiency." (R. at 187, 197.) Ms. Bogue diagnosed Lemanda
with depression due to past neglect and abuse. (R. at 187.)
At the hearing held on April 16, 1999, Dr. Marjorie Ardon, a
medical expert, testified that Lemanda "definitely has an
impairment that's quite obvious." (R. at 56.)
Dr. Ardon opined that the IQ scores and report from Dr. Burwell's
examination were valid. (R. at 56.) Dr. Ardon did not review any
of Lemanda's school records. (R. at 52.) She characterized
Lemanda's IQ scores as "borderline." Dr. Ardon admitted that she
did not understand the difference between § 112.05D and §
112.05E. (R. at 57.) At the hearing, Dr. Ardon evaluated
Lemanda's claim under § 112.05E and determined that Lemanda did
not meet the criteria for mental retardation under § 112.05E. (R.
C. The ALJ's decision
In his July 27, 1998 decision, the ALJ found that the medical
evidence established that Plaintiff has a learning disability and
an adjustment disorder. (R. at 14.) He held that these
impairments impact on Lemanda's ability to perform the full range
of basic activities and are therefore "severe." (R. at 14.) The
ALJ concluded that Plaintiff's impairments neither met nor
equaled the level of severity contemplated for any impairment
listed in Appendix 1, Subpart P, Regulations No. 4. (Id.) He
found no evidence of significant mental retardation and no
evidence of significant deficits in adaptive mental, social, and
personal functioning. (Id.)
The ALJ determined that Lemanda does not have any extreme broad
functional limitations or two marked broad functional
limitations. (R. at 14-15.) He agreed with Dr. Ardon that Lemanda
has a marked degree of limitation in cognitive functioning and a
less than marked degree of limitation in concentration,
persistence and pace, and found that she does not have any
limitation in communicative, motor, social or personal
functioning. (R. at 15, 16.)
In making his decision, the ALJ reviewed Dr. Burwell's report
with the IQ scores of 71, 62, and 64, and the diagnosis of mild
mental retardation. (R. at 14.) He considered Dr. Rubens'
diagnosis of a situational adjustment disorder and a
developmental reading disorder. (Id.) The ALJ cited Dr. Sales'
report that the claimant is physically fit, but that she has a
learning disability, with severe short term and long term memory
deficiency, and that she is psychologically and emotionally
handicapped due to a past history of neglect and abuse. (Id.)
The ALJ also noted that Lemanda's teacher, Kathleen Roberts, and
her therapist, Suzanne Bogue, confirmed that the claimant has a
severe short- and long-term memory deficiency, resulting in
problems at school. (Id.) The ALJ did not indicate that the
reports were not credible. He found that the testimony given by
Lemanda and Ms. Hall was credible, but not indicative of a
Standard of Review
In reviewing the Commissioner's (here the ALJ's) decision, the
Court may not decide facts anew, reweigh the evidence, or
substitute its own judgment for that of the Commissioner. Herron
v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Rather, the Court
must accept findings of fact that are supported by "substantial
evidence," 42 U.S.C. § 405(g), where substantial evidence is
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Herron, 19 F.3d at 333
(quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971)). The ALJ must consider all relevant
evidence and may not select and discuss only that evidence that
favors his ultimate conclusion. Herron, 19 F.3d at 333. Where
conflicting evidence allows reasonable minds to differ, the
responsibility for determining whether a claimant is disabled
falls upon the Commissioner (or ALJ), not the courts. Herr v.
Sullivan, 912 F.2d 178, 181 (7th Cir. 1990); see also Stuckey
v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (holding that the
ALJ has the authority to assess medical evidence and give greater
weight to that which he finds more credible). This Court is
limited to determining whether the Commissioner's final decision
is supported by substantial evidence and based upon proper legal
criteria. Ehrhart v.
Secretary of Health and Human Services, 969 F.2d 534, 538 (7th
This does not mean that the Commissioner (or ALJ) is entitled
to unlimited judicial deference, however. In addition to relying
on substantial evidence, the ALJ must articulate his analysis at
some minimal level and state his reasons for accepting or
rejecting "entire lines of evidence," although he need not
evaluate in writing every piece of evidence in the record. See
Herron, 19 F.3d. at 333; see also Young v. Secretary of Health
and Human Services, 957 F.2d 386, 393 (7th Cir. 1992) (holding
that the ALJ must articulate his reason for rejecting evidence
"within reasonable limits" in order for meaningful appellate
review); Guercio v. Shalala, No. 93 C 323, 1994 WL 66102, at *9
(N.D.Ill. March 3, 1994) (holding that the ALJ need not spell out
every step in his reasoning, provided he has given sufficient
direction that the full course of his decision may be discerned)
(citing Brown v. Bowen, 847 F.2d 342, 344 (7th Cir. 1988)).
Under current law, a child is disabled if he or she has a
medically determinable impairment that results in "marked and
severe functional limitations" and meets the twelve month
duration requirement of the Act. See 42 U.S.C. § 1382c
(a)(3)(C)(i). The Social Security Administration has adopted
a three-step sequential analysis to determine whether a child is
disabled. 20 C.F.R. § 416.924(a)(d). The first step is to
determine whether the child is engaged in any substantial gainful
activity. The second step is to decide whether the child has a
medically severe impairment or combination of impairments. The
third step is to determine whether the child's impairment(s)
meet(s) or equal(s) any of the Listing of Impairments contained
in Appendix 1 of 20 C.F.R. pt. 404, subpt. P. If the impairment
meets or equals one of the Listing of Impairments, then the child
is considered disabled. Otherwise, the Commissioner must
determine if the limitations caused by the child's impairments
are functionally equivalent to one of the listed impairments.
20 C.F.R. § 416.926a. A negative answer at any step precludes a
finding of disability. 20 C.F.R. § 416.924a. The claimant seeking
benefits bears the burden of proving that his or her impairment
meets or equals a listed impairment. Maggard v. Apfel,
167 F.3d 376, 380 (7th Cir. 1999).
The ALJ found in favor of the claimant at steps one and two of
the sequential evaluation, finding that she had not participated
in any substantial gainful activity and that she had a
combination of impairments that were severe. (R. at 13-14.) At
step three, however, the ALJ found that Lemanda's impairments, in
combination, did not meet or equal any of the impairments listed
in the regulation.*fn2 (R. at 14.) The Court, having carefully
reviewed the entire record upon which the ALJ based his decision,
concludes that his analysis of the medical records and the
conclusions drawn therefrom are not supported by substantial
evidence in the record as a whole.
For purposes of the Social Security Administration, mental
retardation in children is defined as:
significantly subaverage general intellectual
functioning with deficits in adaptive functioning . .
. The required level of severity for this disorder is
met when the requirements of A, B, C, D, E, or F are
satisfied . . . (D) A valid verbal, performance, or
full scale IQ of 60 through
70 and a physical or other mental impairment imposing
additional and significant limitation of function.
20 C.F.R. Part 404, Subpart P, App. 1, § 112.05. (The same
standard applies to adults under 20 C.F.R. Part 404, Subpart P,
Appendix 1, § 12.05C.)*fn3
Plaintiff contends that she meets the requirements for a
finding of mental retardation under § 112.05D (not § 112.05E,
which the ALJ applied), because she (1) has a valid IQ score of
60 through 70 and (2) a physical or other mental impairment
imposing additional and significant limitation of function.
Plaintiff's Memorandum in Support of Her Motion for Summary
Judgment ("Pl.'s Mem.Supp.Summ.J.") at 4-5.
In contrast, the Commissioner argues that a claimant must
establish three elements to meet § 112.05D, not just two: (1)
The claimant must be mentally retarded; (2) the claimant must
have an IQ between 60 and 70; and (3) the claimant must have an
additional and significant limitation of function. Defendant's
Memorandum in Support of Motion for Summary Judgment ("Def.'s
Mem.Supp.Summ.J.") at 7. The Commissioner contends that, because
the claimant has not asserted that she is mentally retarded (step
one), she cannot meet the requirements of § 112.05D. Def's
Mem.Supp.SummJ. at 7-8.
There appears to be a split of authority as to whether a valid
IQ score of 60 to 70 automatically satisfies the first step(s) of
112.05D and its adult analog, 12.05C. The text of the regulation
supports the Commissioner's interpretation, see 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 112.00, and the Commissioner cites
Acquiescence Ruling 98-2(8), 63 Fed.Reg. 36, 9279, 9280, which
suggests the same three-part test. See also Anderson v. Apfel,
996 F. Supp. 869 (E.D.Ark. 1998) (holding that IQ score of 60 to
70 does not automatically satisfy the first prong of 12.05C).
While not explicitly addressing whether a two or three part test
should be used, the case law in the Seventh Circuit, as well as
many other circuits, applies a two-part test.
The Seventh Circuit has consistently construed the mental
retardation listings to mean that "a claimant is considered
disabled due to mental retardation when he has a valid verbal,
performance, or full scale I.Q. of 60 through 70 and a physical
or other mental impairment imposing additional and significant
work-related limitation of function." Maggard v. Apfel,
167 F.3d 376, 380 (7th Cir. 1999) (internal quotes omitted); see
also Thomas v. Secretary of Health and Human Services, No.
98-1185, 1998 WL 516815, at *2 (7th Cir. Aug.17, 1998)
(describing a two-part test for mental retardation under §
12.05C); Fisher v. Bowen, 869 F.2d 1055, 1055 (7th Cir. 1989)
(stating that an individual with an IQ between 60 and 69 and an
additional and significant limitation of function is deemed to be
totally disabled). Accord, Rucker v. Apfel, 141 F.3d 1256,
1259-60 (8th Cir. 1998); Riley v. Apfel, 162 F.3d 1162, 1998 WL
553151, at *4 (6th Cir. 1998); Sird v. Chater, 105 F.3d 401,
402 (8th Cir. 1997); Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th
Cir. 1997); Crayton v. Callahan, 120 F.3d 1217, 1219-20 (11th
Nonetheless, whether this Court employs a two or three-part
test, the Plaintiff will still prevail because she has, indeed,
established that she is mentally retarded (prong one of the
Commissioner's test).*fn4 Dr. Burwell diagnosed her as mildly
mentally retarded, and no examining medical professionals
contested Dr. Burwell's report. Significantly, the ALJ did not
give any indication that Dr. Burwell's diagnosis of mild mental
retardation was not credible. While the Commissioner argues that
the ALJ could reasonably reject Dr. Burwell's diagnosis of mental
retardation, this argument is premised on proof that there is
medical evidence in the record to the contrary. Although none of
the other medical records state that Lemanda is mentally
retarded, none purported to evaluate her for mental
retardation.*fn5 Lemanda's school records and the letters of Dr.
Sales, Ms. Roberts, and Ms. Bogue all attest that Lemanda suffers
from a learning disability, but none of them suggest that Lemanda
is not mentally retarded, nor is there an indication that any of
these individuals administered an intelligence test or are
otherwise qualified to diagnose mental retardation. In sum, Dr.
Burwell found that Lemanda is mentally retarded, and there is no
substantial evidence to the contrary. Therefore, even if the
court applies the three-part test advocated by the Commissioner,
part one, a finding of mental retardation, has been established.
Applying the next part of the analysis under § 112.05D, the IQ
scores from Dr. Burwell's examination on March 27, 1997 were not
contested by anyone who examined the claimant or her records,
and, significantly, they appear to have been accepted by the ALJ.
(R. at 14.) It is undisputed that Lemanda's performance and full
scale IQ scores of 62 and 64 fall within the range specified by §
112.05D. The ALJ gave no reasons for which he might discredit the
results of the WISC-III administered by Dr. Burwell.
The last part of the test for mental retardation under §
112.05D is "a physical or other mental impairment imposing
additional and significant limitation of function."*fn6
20 C.F.R. Part 404, Subpart P, App. 1, § 112.05D. This language has
been held to require an additional impairment that is more than
slight or minimal but less than severe. Sird v. Chater,
105 F.3d 401, 403 (8th Cir. 1997); Hinkle v. Apfel, 132 F.3d 1349,
1352 (10th Cir. 1997); Warren v. Shalala, 29 F.3d 1287, 1291
(8th Cir. 1994); Cook v. Bowen, 797 F.2d 687, 690 (8th Cir.
1986). The Social Security
Administration defines "additional and significant limitation of
function" to mean "another distinct diagnosable impairment,"
which may be a learning disability. Childhood Disability
Evaluation Issues, Social Security Administration Office of
Disability, SSA Pub. No. 64-076 (March 1998), p. 49 & n. 3. A
"significant limitation" does not have to be at the "marked"
level, but only at the "moderate" level.
The ALJ found that Lemanda has a learning disability and an
adjustment disorder, both of which are "severe" within the
meaning of the Social Security Act. (R. at 16.) He also found
that Lemanda has marked limitation in cognitive functioning and a
less than marked limitation in concentration, persistence and
pace. (Id.) Thus, the ALJ's findings as to the severity of
Lemanda's learning disability and adjustment disorder met and
surpassed the additional limitation requirement of § 112.05D, as
did the finding of marked limitation in cognitive functioning.
Because the ALJ did not explain why Lemanda's IQ scores,
coupled with her severe learning disability and severe adjustment
disorder, did not satisfy 112.05D, the ALJ failed to provide a
rational basis for the denial of benefits. See Green v. Apfel,
204 F.3d 780, 781 (7th Cir. 2000); Hickman v. Apfel,
187 F.3d 683, 689 (7th Cir. 1999).
Upon remand, the ALJ should analyze whether claimant is
disabled under § 112.05D — not § 112.05E. If the ALJ determines
that Lemanda's impairments do not, in fact, satisfy § 112.05D,
the record should be more fully developed, and the decision
should explain why claimant's IQ scores — in conjunction with her
severe learning disability and severe adjustment disorder — do
not meet the listing for mental retardation under § 112.05D. The
ALJ might wish to hear the testimony of doctors who have actually
examined or treated Lemanda, as well as relevant school personnel
and therapists. Finally, the ALJ may take any other actions not
inconsistent with this Opinion.
The Court finds that the ALJ's determination that Lemanda Lee
is not mentally retarded under the meaning of the Social Security
Act is not supported by substantial evidence. Accordingly,
IT IS HEREBY ORDERED that the Commissioner's Motion for
Summary Judgment be, and the same hereby is, denied.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary
Judgment be, and the same hereby is, granted in part.
This cause is REMANDED to the Commissioner for further
proceedings consistent with this Opinion.