Essie L. Hodges v. Jo Anne B. Barnhart

PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 21, 2001
No. 01-11387 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 99-02123-CV-S-NE

ESSIE HODGES,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, Commissioner
of Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Alabama

(December 21, 2001)

Before ANDERSON, Chief Judge, BLACK, Circuit Judge, and MORENO*,
District Judge

MORENO, District Judge:

*Honorable Federico A. Moreno, U.S. District Judge for the Southern District of Florida,
sitting by designation.
 This is an appeal from a denial of social security benefits for mental retardation

where the plaintiff did not present affirmative evidence of such disability before the

age of twenty-two. The administrative law judge did not presume from the evidence

of present mental deficiency that the claimant was mentally retarded before the age

of twenty-two. We agree with other circuits in concluding that there is a presumption

that mental retardation is a condition that remains constant throughout life.

Therefore, we find that a claimant need not present evidence that she manifested

deficits in adaptive functioning prior to the age twenty-two, when she presented

evidence of low IQ test results after the age of twenty-two. We reverse the district

judge with directions to remand to the administrative law judge for a determination

of whether there is substantial evidence to rebut this presumption of a fairly constant

mental capacity before the age of twenty-two.

BACKGROUND

Essie Hodges applied for Supplemental Social Security income under 42 U.S.C.

§ 1383. Hodges appealed the denial of benefits before an administrative law judge

(“ALJ”). On the date of the administrative hearing, Hodges was 49 years old. She

testified that while she had intended to return to school, she only received a seventh-

grade education because she was unable to pay for books. She also testified that she

could not recall whether she received any special education during her schooling.

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Although Hodges worked briefly at a fast food restaurant, she testified that she had

not gained employment outside the home in the fifteen years preceding the hearing.

Hodges also testified that she raised her seven children.

At the hearing, Hodges testified that she suffered from arthritis in her back,

anxiety, depression, migraine headaches, blurry vision, bladder failure that caused

muscles spasms, blood blisters, and pain in her neck and lower back. According to

Hodges, these physical ailments disabled her from working.

Aside from the evidence regarding Hodges’ physical condition, the ALJ

considered evidence regarding Hodges’ mental impairment. In March, 1997, Dr.

Thomas W. Tensbrunel examined Hodges at the request of the Division of Disability

Determination and administered a Weschler Adult Intelligence Scale (“WAIS”) IQ

test on her. The WAIS test revealed that Hodges had a verbal IQ of 67, a performance

IQ of 79, and a full scale IQ of 72. Dr. Tensbrunel noted that a higher score on the

performance scale as compared to the verbal scale was consistent with her limited

educational background. Dr. Tensbrunel’s prognosis was that Hodges could maintain

unskilled employment in the future and manage any finances she accrues. He also

referred her to a psychiatrist for treatment for anxiety and depression.

Two non-examining psychologists evaluated the degree of Hodges’ mental

impairment. In April, 1997, Dr. F.A. Breslin determined Hodges was moderately

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limited in the following areas: (1) the ability to understand, remember, and follow

detailed instructions; (2) the ability to concentrate for an extended period; (3) the

ability to interact appropriately with the public; (4) the ability to respond appropriately

to changes in a work setting; and (5) the ability to complete a normal workday without

an unreasonable number of rest periods. Dr. Breslin added that Hodges could

understand, remember and follow simple two-step tasks and that she could attend to

tasks for a two-hour period. Overall, Dr. Breslin thought Hodges capable of working

an eight-hour day.

The other non-examining psychologist Dr. T. Michael Hammond evaluated

Hodges in June, 1997, and noted that Hodges was moderately limited in the same

ways that Dr. Breslin had opined. Dr. Hammond added, however, that Hodges was

also moderately limited in her ability to (1) work in proximity to others without being

distracted by them; (2) accept instructions and respond appropriately to criticism from

supervisors; and (3) work with coworkers and peers without distracting them. He

concluded that Hodges could complete simple tasks but recommended contact with

others be infrequent and supervision direct and nonconfrontational.

The record is devoid of any evidence relating to Hodges’ mental capabilities

before the age of twenty-two. Hodges testified that she attempted to get her school

transcripts but the records could not be located and were most likely lost in a fire. As

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far as her reading and writing ability, Hodges testified that she could read a little out

of books and letters and could write letters with her daughters’ assistance.

The ALJ did not presume that Hodges’ mental capabilities at 49 were the same

as before twenty-two. Though noting that Hodges had a “severe impairment’ based

on her borderline intellectual functioning, depression, chronic low back pain, obesity

and early chronic obstructive pulmonary disease, the ALJ decided that these

impairments did not meet or equal the criteria of any section of the Listing of

Impairments under the Social Security Act that would permit a finding that Hodges

was disabled. Specifically, the ALJ concluded that Hodges did not meet the criteria

for Listing 12.05(c), which addresses mental retardation. The rationale behind this

decision as revealed in the ALJ’s decision letter is the lack of evidence revealing

deficits in adaptive functioning initially manifested during the developmental period

before age twenty-two. Thus, the ALJ concluded that Hodges could successfully

perform certain jobs despite her impairments.

DISCUSSION

This Court must determine whether the ALJ applied the correct legal standard.

Listing 12.05 describes the criteria to qualify for benefits for mental retardation. It

states:

Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested

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 during the developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22. The required level of
severity for this disorder is met when the requirements in A, B, C, or D
are satisfied. . ..C. 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.

20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05. Hodges alleged that she met the criteria

under Listing 12.05(C) for a disability. Though adopting Dr. Tensbrunel’s IQ testing

as a valid assessment of Hodges’ mental capabilities at age 49, the ALJ found no

evidence supported the proposition that Hodges manifested deficits in adaptive

functioning before age twenty-two as required by Listing 12.05(C).1

Acknowledging the lack of IQ evidence before age twenty-two, Hodges asserts

that absent evidence of sudden trauma that can cause retardation, the IQ tests create

a rebuttable presumption of a fairly constant IQ throughout her life. We agree. Other

appellate courts have recognized this presumption finding that IQ’s remain fairly

constant throughout life. See Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001)

(“Mental retardation is not normally a condition that improves as an affected person

ages. . . .Rather, a person’s IQ is presumed to remain stable over time in the absence

1
Listing 12.00 (D)(6)(c) mandates that

[W]here more than one IQ is customarily derived from the test administered, e.g.
where verbal, performance, and full scale IQs are provided, in the Weschler
series, we use the lowest of these in conjunction with 12.05.

20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.00(D)(6)(c).

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of any evidence of a change in a claimant’s intellectual functioning.”); Luckey v. U.S.

Dept. of Health & Human Servs., 890 F.2d 666, 668 (4th Cir. 1989) (holding absence

of IQ test in developmental years did not preclude finding of mental retardation

predating age twenty-two and courts should assume an IQ remained constant absent

evidence indicating change in intellectual functioning).

The Eleventh Circuit has not formally recognized this presumption and the

issue of whether a claimant must present affirmative evidence that she manifested

deficits in adaptive functioning before age twenty-two is one of first impression. This

circuit implicitly recognized that a claimant meets the criteria for presumptive

disability under Listing 12.05(C) when the claimant presents a valid I.Q. score of 60

to 70 and evidence of additional mental or physical impairment. See Lowery v.

Sullivan, 979 F.2d 835, 838 (11th Cir. 1992). The claimant in Lowery presented

evidence indicating a deficit in adaptive functioning before age twenty-two. Hodges

presented similar evidence of mental disability, but the evidence related to her

condition after age twenty-two. The ALJ did not presume from such evidence that

Hodges manifested a mental disability prior to age twenty-two. We hold that this

failure to presume is error.

It is telling that in the Federal Register, the Commissioner acknowledged that

evidence of intelligence testing during the developmental years would not be required

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to meet the criteria of Listing 12.05. The Commissioner stated:

The proposed listing. . . stated that the significantly subaverage general
intellectual functioning with deficits in adaptive behavior must have
been initially “manifested” during the developmental period. We have
always interpreted this word to include the common clinical practice of
inferring a diagnosis of mental retardation when the longitudinal history
and evidence of current functioning demonstrate that the impairment
existed before the end of the developmental period.” 65 FR 50746,
50772 (August 20, 2000) (emphasis added).

The ALJ, however, did not recognize the presumption that the claimant had

initially met her burden of establishing an impairment under Listing 12.05(C).

Therefore, we remand for further proceedings before the ALJ who is to presume,

based on this evidence, mental impairment before age twenty-two. At such hearing,

the Commissioner may present evidence of Hodges’ daily life to rebut this

presumption of mental impairment. Our holding adopting a presumption of mental

impairment before age 22 does not, however, shift the burden of proof from a claimant

to prove entitlement to social security benefits. Accordingly, the judgment of the

district court is reversed.

REVERSED and REMANDED.

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