Judith Mendez, 22 years old at the time of her hearing before the administrative law judge, is borderline retarded and also suffers from depression; she has never been employed. She appeals from the judgment of the district court affirming the denial by the Social Security Administration of her application for disability benefits. Her composite score on IQ tests has ranged from 68 to 71; there is no suggestion that she was “playing dumb” in any of these tests. She has had several episodes of depression and anxiety (mental illnesses that are frequently found conjoined), which have been treated by the antipsychotic drug Zoloft, occasional psychiatric therapy, and one hospitalization, in which after be
A section of the “grid” that the Social Security Administration uses to streamline the process of determining disability (which must be total to entitle the claimant to benefits) provides that the claimant is disabled if she has an IQ of between 60 and 70 “and a physical or other mental impairment imposing an additional and significant work-related limitation of function.” 20 C.F.R. Part 404, Subpart P, App. 1, § 12.05(C). Although an IQ in that range seems very low, there are several types of job that a person with such a low IQ can perform, such as cleaning and janitorial jobs.
Anderson v. Sullivan,
. The government argues that the error is irrelevant because Mendez failed to make a threshold showing that she is mentally retarded. The regulation on which she relies is in section 12 of the regulations that list the various impairments that can support .a finding of disability. Section 12.00(A) states, that “Listing 12.05 [mental impairments] contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing.” (Mendez
In defending the administrative law judge’s decision on a ground that he himself did not mention, the government violates the
Chenery
principle. But it would not help the, government, if we overlooked the violation, because while the regulations do require the administrative law judge to determine that the claimant’s mental “deficits” were manifested before the age of 22, there is no question that Mendez’s were manifested before then. It is something of a puzzle that the regulations require more than valid IQ test results to demonstrate mental retardation, but the explanation may lie in the fact we noted earlier that an IQ of 70, which figures prominently in the criteria for disability based on mental retardation, is at the borderline between retardation and normal, if low, mental ability. It is noteworthy that in the wake of the Supreme Court’s decision holding that it is unconstitutional to execute retarded murderers,
Atkins v. Virginia,
So back to the administrative law judge’s error regarding the IQ test results: the error would not be fatal were it clear that Mendez has no “physical or other mental impairment imposing an additional and significant work-related limitation of function,” and indeed the administrative law judge stated that she did not. We quoted the main reasons he gave for that conclusion. They are not adequate. The fact that a psychiatric patient does not follow through on counseling or take anti-psychotic drugs regularly is a common consequence of being psychotic and is especially to be expected of a person with a very low IQ. The administrative law judge himself attributed to her low IQ “deficits ... in concentration [and] persistence.” Such “deficits” are quite likely to cause a psychiatric patient to respond erratically to treatment directions.
We have cautioned the Social Security Administration against placing undue weight on a claimant’s household activities in assessing the claimant’s ability to hold a job outside the home.
Gentle v. Barnhart,
The administrative law judge’s finding that Mendez was not “particularly credible,” whatever exactly that means, is undermined by his literalism. When a person says that she sleeps all day, she doesn’t mean it literally; she means that she is abnormally sleepy and listless and dozes off frequently. That is what one expects of someone with severe depression and is consistent with Mendez’s caring for her children, since she takes care of them with the help of other people — her mother and her boyfriend (the children’s putative father).
The administrative law judge also failed to consider the totality of Mendez’s impairments, as he was required to do.
Gentle v. Barnhart, supra,
The administrative law judge failed to articulate a reasoned basis for the denial of benefits. The judgment of the district court is therefore vacated and the. case remanded to the Social Security. Administration for further proceedings consistent with this opinion.
