Barnes v. Barnhart , 116 F. App'x 934 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 26 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DANIELLE BARNES,
Plaintiff-Appellant,
v. No. 02-5153
(D.C. No. 01-CV-359-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Claimant Danielle Barnes appeals from the denial of supplemental security
income (SSI) benefits, arguing that the administrative law judge (ALJ) erred by
concluding that she does not meet or equal one of the listings for mental
retardation, either Listing 12.05(C) or (D). See 20 C.F.R., Pt. 404, Subpt. P,
App. 1, § 12.05(C), (D).
We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).
We review the whole record to determine only whether the factual findings are
supported by substantial evidence and the correct legal standards were applied.
Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289
(10th Cir. 1995). We may not reweigh the evidence or substitute our judgment
for that of the agency. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).
Based on these standards, we reverse and remand for additional proceedings. The
ALJ’s factual analysis of the record at step three is not supported by substantial
evidence. In addition, the ALJ improperly failed to choose and apply one “of the
measurement methods recognized and endorsed by [one of] the [four major]
professional organizations” dealing with mental retardation when he considered
claimant’s “deficits in adaptive functioning.” 67 Fed. Reg. 20,018, 20,022
(Apr. 24, 2002); 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.05.
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I. Claimant Meets the Two Specific Prongs of Listing 12.05(C), And Her
Impairments Were Established Before Age 22
Listing 12.05(C) specifically requires that claimant show that she had:
(1) a valid verbal, performance, or full scale IQ of 60 through 70; and (2) another
significant physical or mental impairment affecting work functions. 20 C.F.R.,
Pt. 404, Subpt. P, App. 1, § 12.05(C). Claimant was born on May 9, 1976, and
was 22 years old at the time of the administrative hearing in March 1999. Aplt.
App., Vol. II at 24, 42. The evidence shows that claimant meets the specific
criteria of Listing 12.05(C), and her impairments were established before the age
of 22.
a. First Prong of Listing 12.05(C)
The listings specify that when verbal, performance, and full scale scores are
provided by the IQ test, the ALJ must consider the lowest of these scores. Id.
§ 12.00(D)(6)(c). Claimant’s IQ was assessed on January 12, 1998, when she was
21 years old. Aplt. App., Vol. II at 282-84. Her lowest score was a performance
score of 70. Id. at 283. The ALJ therefore properly determined that claimant met
the first prong of Listing 12.05(C), id. at 16, and this was before the age of 22.
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b. Second Prong of Listing 12.05(C)
This court has held that where an ALJ determines at step two that a
claimant’s impairment is severe, that impairment is a “significant” limitation of
work functions within the meaning of Listing 12.05(C). Hinkle v. Apfel ,
132 F.3d 1349, 1352-53 (10th Cir. 1997). In this case, the ALJ found at step two
that, in addition to claimant’s limited IQ, she has additional severe impairments
of “obesity, . . ., degenerative disc disease, atopic dermatitis, and adjustment
disorder.” Aplt. App., Vol. II at 25 (finding 2). He found that these impairments
were both “significant” and “vocationally relevant.” Id. at 15. Because “[t]he
ALJ’s decision [must be] evaluated based solely on the reasons stated in the
decision,” and because this court may not engage in a “post hoc effort to salvage
the ALJ’s decision” to deny benefits based on a reason the ALJ did not rely on,
the ALJ’s step-two finding is not subject to reconsideration by this court.
Robinson v. Barnhart , 366 F.3d 1078, 1084-85 (10th Cir. 2004) (quotation
omitted). While the ALJ found that claimant’s additional impairments were not
independently disabling under listings other than 12.05, they need not be
independently disabling to be significant under Listing 12.05(C). Hinkle ,
132 F.3d at 1352. Therefore, claimant’s additional impairments meet the second
prong of Listing 12.05(C). The next question is whether claimant proved that at
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least one of these additional impairments was diagnosed before she turned 22.
The record conclusively shows that all of them were diagnosed before she was 22.
c. Claimant’s Impairments Were Established Before Age 22
As noted above, claimant’s lowest IQ score of 70 was assessed on
January 12, 1998, when she was 21. Aplt. App., Vol. II at 282-84. Thus, she has
established that she met the first prong of Listing 12.05(C) before the age of 22.
Claimant also has established that she met the second prong of
Listing 12.05(C) before age 22. Claimant’s atopic dermatitis qualifies to meet the
second part of the listing. Doctors’ notes on this condition go back at least to
February 1986, when claimant was 9. Aplt. App., Vol. II at 399. In July 1996,
when claimant was 20, she was hospitalized for five days for problems with her
leg. Id. at 199-200. At that time, the reports stated that claimant had a
“longstanding” problem with atopic dermatitis, id. at 199, which was diagnosed
when she was a child, id. at 201. This had created areas of “chronic skin
breakdown,” large and small crusted lesions on her legs, and temporary blistering.
Id. She was hospitalized because she had swelling in her right leg and pain with
bearing weight on it. Id. at 199. Her doctor diagnosed an infection (cellulitis,
staphylococcus) on top of preexisting atopic dermatitis. Id. at 201-02. She was
treated with antibiotics, elevation of the leg, whirlpool, Ancef, Tylenol, Lidex
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ointment, and Duricef. Id. at 200. Surgery (amputation) was considered but was
not necessary. Id. at 129, 200. Claimant wrote in her disability report that she
was schooled at home for two years because her feet hurt so much that she could
not walk to classes. Id. at 129.
Claimant’s obesity is also established before the age of 22, as her obesity is
noted in the reports about her leg. Id. at 199, 201. She reported her height and
weight as 5’7” and 284 pounds in a disability application filed on June 10, 1996,
when she was 20. Id. at 123. This was a month before her hospitalization.
Clearly, her obesity started before the age of 20 since she is in the neighborhood
of twice the weight she ought to be.
Claimant’s degenerative disc disease was diagnosed in February 1996,
when she was 19. Id. at 180. This condition was discovered when she was
treated for back pain following a car accident (she was a passenger). See id.
at 178, 182-84.
Claimant’s adjustment disorder was diagnosed along with her IQ in January
1998, when she was 21. Id. at 284.
Therefore, based on the ALJ’s step-two finding and the uncontroverted
record evidence, claimant meets both prongs of Listing 12.05(C), and she met
them before she turned 22. It is not necessary to consider whether claimant
equals, rather than meets, the specific criteria of Listing 12.05(C). Cf. Shontos v.
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Barnhart , 328 F.3d 418, 424-27 (8th Cir. 2003) (holding that claimant with IQ of
72, longstanding history of low ability, and additional impairments, did not meet
but equaled Listing 12.05(C) in light of agency’s Program Operations Manual
System).
II. The Agency Argues that the Capsule Definition of Listing 12.05 Adds
Additional Elements, Including “Deficits in Adaptive Functioning,”
that Claimant Must Meet
Listing 12.05 begins with an introductory paragraph stating: “Mental
retardation refers to significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested . . . before age 22.”
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.05. The agency refers to this
introductory paragraph as the “capsule definition” or “diagnostic description.”
See, e.g. , Aplt. App., Vol. II at 16, 320; 20 C.F.R., Pt. 404, Subpt. P, App. 1,
§ 12.00(A). The next consideration for this case is whether the capsule definition
states additional elements that claimant must meet. Appellant argues that it does
not; the agency argues that it does.
The regulations did not make clear in 1999, when the ALJ issued the
decision in this case, that the capsule definition added elements to Listing 12.05
that the claimant was required to meet over and above the specific criteria
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identified in the lettered paragraphs. (Although the capsule definition seems
clearly to add at least an age limitation, that is not an issue in this case.) One
reason that it was not clear that the capsule definition added elements to the
claimant’s burden is that Listing 12.05 stated, and still states: “The required level
of severity for this disorder is met when the requirements in [lettered paragraphs]
A, B, C, or D are satisfied.” Id. It appears from the case law controlling in 1999
that the courts of appeals read the capsule definition as a description of mental
retardation, not as a statement of elements that the claimant must meet–in
addition to the criteria in one of the lettered paragraphs–to prove mental
retardation at step three. This court straightforwardly applied the C criteria on
several occasions without regard to the capsule definition.
We have found nothing that could have put claimant on notice in 1996 and
1997, when she filed her SSI claims, that there were elements to be proved in
addition to the C or D criteria. In February 1998, before the hearing in this case,
the agency published an acquiescence ruling that showed the capsule definition to
be a required element of 12.05(C). See Soc. Sec. Acquiescence Rul. 98-2(8),
1998 WL 79438, at *2 (rescinded as unnecessary when the regulations were
revised in September 2000). But the title (and substantive focus) of that ruling
was “Mental Retardation–What Constitutes An Additional and Significant
Work-Related Limitation of Function–Titles II and XVI of the Social Security
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Act,” which does not suggest any pronouncement about the status of the capsule
definition. Id. Moreover, the ruling applied by its plain terms only to cases
arising in the Eighth Circuit. Id. This court had already settled the question of
what constitutes an additional and significant work-related limitation of function
in Hinkle in 1997. But even if claimant’s counsel read A.R. 98-2(8), that
acquiescence ruling did not break out or define the elements added by the capsule
definition, or state a standard by which they would be measured.
In September 2000, long after the ALJ had issued his decision in this case,
the agency made clear that the capsule definition adds elements to Listing 12.05
by amending the preliminary material in § 12.00 to state that “[i]f your
impairment satisfies the diagnostic description in the introductory paragraph [of
Listing 12.05] and any one of the four sets of criteria, we will find that your
impairment meets the listing.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(A)
(emphasis added). Unfortunately, this amendment fails either to break out or
define the elements purportedly added by the capsule definition, and gives no
standard by which they will be measured.
In 2003, the agency published a second acquiescence ruling stating that the
capsule definition adds elements to Listing 12.05, but again the agency did not
break out or define the elements, or state a standard of measurement. See Soc.
Sec. Acquiescence Rul. 03-1(7), 68 Fed. Reg. 74,279, 74,280 (Dec. 23, 2003).
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The agency issued A.R. 03-1(7) because the Seventh Circuit, in remanding a case
for further proceedings, directed the agency to disregard the diagnostic
description in Listing 112.05 (the nearly identical listing for child mental
retardation) because it had not been in effect at the time of the original hearing.
Id. (discussing Blakes ex rel. Wolfe v. Barnhart , 331 F.3d 565, 570-71 (7th Cir.
2003)). The agency disagreed with that court’s interpretation that the elements of
Listings 12.05 or 112.05 had ever been different. Id.In sum, it is now clear that the capsule definition imposes additional
elements to the claimant’s burden under Listing 12.05(C) and (D). Prior to the
2000 amendment clarifying this point, however, the case law in this circuit (and
others) did not recognize this added burden. In addition, the amendment did not
specify what the method and standards of assessment were for this added burden.
In any case, as discussed below, under the improvised functional approach to the
capsule definition the ALJ actually used, the record does not support his denial of
benefits at step three.
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a. The ALJ Found, and the Agency Argues on Appeal, that
Claimant Did Not Show “Deficits in Adaptive Functioning,” and
Therefore Did Not Meet the Capsule Definition for Listings
12.05(C) and (D)
The agency argues that the capsule definition of Listing 12.05 adds a
requirement–“deficits in adaptive functioning”–that claimant did not meet. The
agency argues that the evidence of claimant’s daily activities, social skills, and
educational history show that she is not actually so impaired by her low IQ and
physical impairments as to be disabled under Listing 12.05(C) or (D). The ALJ’s
decision states that claimant’s low IQ met the first prong of 12.05(C), but
her impairment does not comply with the “capsule” definition
paragraph of the Listing. It requires that her impairment be a
“significantly subaverage general intellectual functioning with
deficits in adaptive behavior initially manifested during the
developmental period (before age 22).[”] Assessment of her usual
daily activities, her social life, and her educational life fails to reveal
such deficits in adaptive behavior . The claimant maintains neatness
and grooming, cares for her children. She went to school to the 10th
grade and left to be married, not for educational reasons. The
dissolution of her marriage was due to her husband’s violation of his
vows, and was not due to her own deficits.
Aplt. App., Vol. II at 16 (emphasis added).
If, however, the capsule definition includes a requirement to show deficits
in adaptive functioning, then there are questions about what that requirement is,
whether claimant was on notice that she needed to present evidence to prove this
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element, and how it should be assessed by the ALJ. We see both factual and legal
problems with the agency’s argument that claimant did not show deficits in
adaptive functioning. Factually, the record does not support the ALJ’s conclusion
under the ad hoc functional approach he applied. Legally, his analysis does not
comply with the Commissioner’s (subsequent) direction that ALJs choose and
apply one “of the measurement methods recognized and endorsed by [one of] the
[four major] professional organizations” dealing with mental retardation. 67 Fed.
Reg. at 20,022. For these reasons, the case must be remanded, and the ALJ must
identify which standard he has selected so that this court will be able to provide a
meaningful review if there is a second appeal, and so that claimant can
supplement the record with any additional proof she wishes to present on this
element.
b. The ALJ’s Functional Assessment of Claimant’s Deficits in
Adaptive Functioning is Not Supported By Substantial Evidence,
and the Case Should Be Reversed
Factually, the record does not provide substantial support for the ALJ’s
findings about claimant’s daily activities, social skills, and educational history,
which were the predicate for his conclusion that she did not have deficits in
adaptive functioning prior to age 22. The record does not show that claimant had
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much of a social life. The only evidence on this point is from claimant’s and her
mother’s testimony at the hearing. The hearing took place in March 1999, when
claimant was 22. Aplt. App., Vol. II at 44. She testified that her daily activities
amounted to almost nothing. Id. at 54-56. There is no evidence that she had any
friends. She sat or lay down a lot on account of her back pain. Id. at 54-56, 64.
(She is not prescribed strong pain medication because she attempted suicide by
taking an overdose of Zoloft. Id. at 64-65, 209.) She had trouble sleeping and
only slept about four hours a night. Id. at 68. At the time of the hearing, she had
lived alone in an apartment behind her mother’s house for at least a year. Id.
at 47, 74. Claimant visited her children, as they lived with her mother. Id. at 47,
54, 57. On an average day, she would play a little with her children or change a
diaper, help her mother with things around the house, and help cook dinner. Id.
at 55-56. Her children made her nervous, and she would leave the house to calm
down. Id. at 65. She gave up driving because it gave her “panic attacks.” Id.
at 48. (Even if the allegation of panic attacks is disregarded, the point is that
claimant gave up driving.) She sometimes visited her grandmother, aunts, or
father, and some of them would drive her to a store if she needed to go. Id. at 48,
71.
Based on the evidence of claimant’s social life and daily activities, it
appears that claimant lived in a structured home setting with family support, a
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significant point under the regulations. The ALJ was supposed to have
considered whether claimant’s home setting was structured in a way that
minimized the mental demands on her, and therefore her symptoms, and should
have discussed the evidence showing that she had ability to function outside of
that setting. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(F). The ALJ did not
address this point.
There are references that claimant was neatly dressed and groomed, but it is
not clear from the record whether she dressed herself. E.g. , Aplt. App., Vol. II
at 282, 408, 410.
Claimant did not care for her children, and the ALJ contradicted himself on
this point. Cf. id. at 16 (noting that claimant cares for her children) with id. at 20
(noting that claimant’s mother was claimant’s children’s primary caretaker and
“claimant spends her days free of household or childcare responsibility”).
Claimant separated from her husband in August 1997, id. at 410; was living with
her mother in November 1997, when she was 21, id. at 242; and she had been
living alone in the apartment behind her mother’s house for a year or more before
the administrative hearing in March 1999, see id. at 47. She turned 22 in May
1998. It therefore appears from the record that her children started living with
her mother when claimant was 21. There is no evidence about the kind of care
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she gave her children when they lived with her and, therefore, no basis for any
conclusion on this point.
The record shows that claimant was basically a failure at school. She
finished the tenth grade and then quit. Id. at 48. She never got a GED, id.
at 48-49, and it is not clear that she is eligible to take that test, even if she wanted
to, see id. at 167. Although she did not flunk out of school, she repeated the
second grade, id. at 149, 155, and was in special education classes most of the
way through school. School officials would try her in regular classes and then
move her back to special education. Id. at 49. The grades included in the record
(from elementary school) are mixed, including two F’s, several D’s, and several
notations that she was below grade level. Id. at 171. She was given
comprehensive tests in June 1992, at the age of 16. Id. at 147-51. Her scores
ranged from low average to adequate to low to very low (several in the bottom
tenth percentile), depending on the ability tested. Id. at 150-51. Overall, she was
assessed to be functioning at a low range of overall intellectual ability. Id.
at 151. Her Iowa Basic Skills results in March 1990, when she was 13, showed
low scores (bottom tenth percentile) in almost every category. Id. at 160. An
achievement test done in March 1993, when claimant was 16, showed low scores
in almost all categories. Id. at 162. The record suggests that she dropped out of
school because she was pregnant. Id. at 320.
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The record shows that claimant called a telephone helpline in November
1997, when she was 21 years old, stating that she and her husband were having
problems in their marriage, and that her husband blamed her for them. Id. at 242.
This evidence tends to contradict the ALJ’s finding that her marriage ended solely
because of her husband’s infidelity and not because of her deficits. The record
does indicate that claimant separated from her husband after he was unfaithful.
E.g. , id. at 209.
In short, the record does not support the ALJ’s summary analysis that
claimant’s usual daily activities, her social life, and her educational life fail to
show deficits in adaptive behavior to meet the capsule definition for Listings
12.05(C) and (D).
In addition, the ALJ’s conclusion that claimant is unmotivated to work is
not supported by the record. The ALJ relied on claimant’s ability to get four jobs,
rejecting her testimony that she could not perform any of them without pointing to
any evidence to contradict her claim that she was slow and made mistakes with
money and counting inventory. Id. at 23. The only evidence in the record is that
she obtained four jobs, that lasted for two-three weeks to two-three months, and
that she could not perform them.
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The vocational expert testified that claimant’s past jobs did not qualify as
past relevant work because of their short duration. See id. at 77. She was
employed for about two months in 1991-92 at Braun’s (a restaurant, it appears) as
a server, but after calling in three weeks in a row only to be told that she was not
scheduled to work, she gave up on it. Id. at 58-59, 120, 128. She worked for a
month as a carhop in 1995 at Sonic, but was not as fast as the other employees,
and that job ended for that reason. Id. at 59, 120, 128. She worked for less than
three weeks in 1998 as a cashier at Smitty’s, a convenience store, but she could
not remember the prices of the products, and she was let go because of complaints
about her work. Id. at 60, 114. She also worked part-time for less than three
months in 1998 as a cashier at Curt’s Oil, another convenience store, but was
unable to perform inventory counts satisfactorily. Id. at 59-60, 115. She made
only $1891.19 on all four jobs. Id. at 113-15. The ALJ rejected claimant’s
testimony, stating that she had not proven that she was slow. Id. at 23. But there
is no evidence to suggest that claimant actually performed satisfactorily on any of
her jobs. This is similar to the ALJ’s finding that claimant is unmotivated to
work, id. at 20, a finding for which there is no evidentiary support at all. On the
contrary, the only comments about claimant’s attitude in the record are that she
was cooperative and appeared to make a good effort at what she was doing. E.g. ,
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id. at 149-50, 168. As a result, the ALJ’s conclusion that claimant is not disabled
at step three must be reversed.
III. The ALJ on Remand Should Identify and Apply a Professionally-
Recognized Method of Measuring “Deficits in Adaptive Behavior” and
Allow Claimant to Supplement the Record
The Commissioner publicly announced in April 2002 that there are at least
four possible definitions of “deficits in adaptive functioning”–from the four major
professional organizations dealing with mental retardation. See 67 Fed. Reg.
at 20,022. This is the first reference we found anywhere to a definition for the
elements in the capsule definition in Listing 12.05, and it appeared long after the
agency had issued its final decision in this case. Even so, the Commissioner
expressly declined to adopt any particular one of these definitions because the
four major organizations use somewhat different definitions and methods for
assessing them. 67 Fed. Reg. at 20,022. The Commissioner considers the
definition of mental retardation reflected in the listings to be consistent with these
definitions, although not identical to any one of them, and “allow[s] use of any of
the measurement methods recognized and endorsed by the professional
organizations.” Id. The ALJ in this case, however, essentially improvised his
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own definition for “deficits in adaptive functioning,” which, as we have seen, was
not supported by the evidence.
On remand, the ALJ must choose a standard consistent with the
Commissioner’s directive. See id. For example, the American Psychiatric
Association (APA) provides one definition for “deficits in adaptive functioning”
in the DSM-IV. Id. The APA states that “deficits in adaptive functioning” are
shown by “significant limitations in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure,
health, and safety.” Id. The APA also provides a measurement standard: “[T]he
criterion of significance is a summary index score that is two or more standard
deviations below the mean . . . .” Id. The record in this case clearly shows that
claimant has limitations in some of the areas the APA considers relevant, but
whether they are “significant” under the APA’s standard (or meet the
requirements of whichever standard the ALJ might decide to use) is unknown.
Because claimant was not on notice when she created her record that she had to
prove this element, the ALJ, on remand, should give claimant an opportunity to
supplement the record.
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IV. Conclusion
Because the capsule definition is common to Listing 12.05(C) and (D), the
ALJ’s reversible error concerning the capsule definition necessitates a remand of
the case for further proceedings with respect to both listings. Claimant should be
given an opportunity to supplement the record.
The judgment of the United States District Court for the Northern District
of Oklahoma is REVERSED, and the case is REMANDED with directions to
REMAND to the agency for additional proceedings consistent with this
disposition.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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