Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shirley J. Gill v. Michael J. Astrue

October 4, 2011

SHIRLEY J. GILL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Clifford J. Proud (Doc. 23). The magistrate judge recommends the Court affirm the decision of the Administrative Law Judge (ALJ) finding plaintiff Shirley J. Gill not disabled and therefore not eligible for Supplemental Security Income benefits under 42 U.S.C. § 423. Plaintiff has filed objections to the Report and Recommendation (Doc. 24), and defendant Commissioner of Social Security has filed a response (Doc. 26). The Court will review de novo those portions of the Report and Recommendation to which objections were filed. 28 U.S.C. § 636(b).

BACKGROUND

Plaintiff filed an application for Social Security benefits alleging she has been disabled as of August 25, 2006. The application was denied. Thereafter, a hearing was held before ALJ Joseph W. Warzycki. He denied the application, the Appeals Council declined to review, and the ALJ's decision became the final agency decision. Plaintiff now appeals, arguing that she meets the requirements of Listing 12.05, Mental Retardation, and is there-fore presumptively disabled. See 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.05(C).

It is easier to understand the parties' arguments after analyzing § 12.05(C). To meet the requirements of § 12.05(C), a claimant must fulfill the prerequisites: "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." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.05; Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007); Mendez v. Barn-hart, 439 F.3d 360, 362 (7th Cir. 2006). If those requirements are met, subsection (C) of § 12.05 requires a "valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function." Therefore, taken together, the introductory paragraph and subsection (C) may be broken down into three criteria:

(1) 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; (2) a valid verbal, performance, or full scale IQ of 60--70; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation of function. § 12.05; Mendez v. Barnhart, 439 F.3d 360, 361--62 (7th Cir. 2006); see also Adkins v. Astrue, 226 Fed. App'x 600, 605 (7th Cir. 2007) (four critera, with "significantly subaverage general intellectual functioning" on its own). The requirement of early onset and reference to the developmental period "seem intended to limit coverage to an innate condition." Novy, 497 F.3d at 709.

Here, the ALJ set out the requirements of Listing 12.05 in a more abbreviated fashion, citing Maresh v. Barnhart, 438 F.3d 897 (8th Cir. 2006): "Section 12.05C . . . provides for a finding of disability due to mental retardation when an adult claimant has a valid verbal, performance or full scale IQ of 60 to 70 . . . , an onset of mental retardation impairment before age 22, and a physical or other mental impairment imposing additional and significant work-related limitation of function" (Tr. 12). He noted that although plaintiff had registered IQ scores in the 60s in 1976 and in 2006, her scores in 1981 were all above 70, "suggestive of borderline intellectual functioning at worst, not mental retardation" (Tr. 12). He reasoned that "[c]ommon sense dictates that one cannot manifest a higher degree of intelligence than what she possesses, although she can manifest a lower one" (id.). He found no evidence of brain disease or trauma that could explain the drop in score from 1981 to 2006. Plaintiff testified that she had trouble with big words, but she was not illiterate, which was a factor for the ALJ that suggested lower-than-normal intelligence, not mental retardation. Therefore, he concluded, the highest set of IQ scores, from May 1981, were logically the most accurate.

Plaintiff then sought review in this Court. She argues that she meets all the requirements of Listing 12.05(C) because:

(1) Her school IQ tests ranged from 57 to 79 and demonstrate the onset of her impairment before age 22, satisfying the introductory paragraph of Listing 12.05;

(2) her 2006 IQ test gives a valid score between 60--70, thus meeting the first prong of § 12.05(C); and

(3) her physical impairments, including hypertension, asthma, gastroesophageal reflux disease, and mild arthralgias, limit her to light work and therefore constitute an additional and significant work-related limitation of function, thus meeting the second prong of § 12.05(C).

Plaintiff asks the Court to either reverse defendant's decision denying her Social Security Income and direct payment retroactive to her application date; or remand for a new hearing.

The magistrate judge recommends that the Court affirm the Commissioner's de-termination that plaintiff did not meet the requirements of Listing 12.05. The Report and Recommendation notes that it would not make sense to use plaintiff's IQ score from 2006 because the Listing requires onset of mental retardation before age 22. Since plaintiff had an IQ test taken before age 22 (in May 1981), the 2006 scores she received as an adult are not relevant.*fn1 The magistrate judge also finds that without authoritative case law or agency directive to the contrary, it could not be an error of law for the ALJ to have used the May 1981 IQ scores, which were all in the 70s. Finally, the magistrate judge determined that even if one were to accept ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.