Heather Browning v. Carolyn Colvin

766 F.3d 702, 2014 U.S. App. LEXIS 17266, 2014 WL 4370648
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 4, 2014
Docket13-3836
StatusPublished
Cited by160 cases

This text of 766 F.3d 702 (Heather Browning v. Carolyn Colvin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heather Browning v. Carolyn Colvin, 766 F.3d 702, 2014 U.S. App. LEXIS 17266, 2014 WL 4370648 (7th Cir. 2014).

Opinion

POSNER, Circuit Judge.

The plaintiff, a woman of 25, appeals from the district court’s affirmance of the denial of SSI (Supplemental Security Income) benefits, which are paid to low-income people who are aged, blind, or disabled. The program is administered by the Social Security Administration. The plaintiff claims to be disabled by reason of being mentally retarded (“intellectually disabled,” in current jargon) and suffering from knee and hip pain in one leg. The pain is the result of a defect in the hip joint caused by a childhood disease called Legg-Calve-Perthes disease. See Mayo Clinic, “Diseases and Conditions: Legg-Calve-Perthes Disease,” www.mayoclinic. org/diseases-conditions/legg-calve-perthes-disease/basics/definition/con-20035572 (visited Sept. 4, 2014, as were the other websites cited in this opinion).

Her flunking kindergarten was the first sign of a mental deficiency. Two years later she was diagnosed as being “an attention deficient hyperactivity disordered child” who was “mildly mentally retarded.” From elementary school through the end of high school she was enrolled full time in “special education.” Unable to pass the test required by the state for graduation from high school, she was allowed to graduate anyway by being given a waiver for which students with disabilities are eligible. The administrative law judge’s statement that “the claimant has at least a high school education” is thus misleading — especially since he appears to have credited her testimony that “she is able to read on a kindergarten level.” Of course anyone who can read at a higher level can also read at a kindergarten level, but obviously the administrative law judge meant that the plaintiff can read only at a kindergarten level.

A psychologist named Albert Fink administered an IQ test to her in 2007, when she was 18. Her IQ was 68; only about 2.3 percent of the American population has an IQ below 70. She had scored higher in IQ tests that she’d taken as a child, but the administrative law judge did not mention those test results and the government, bowing to Chenery, acknowledges that we therefore can’t consider them in deciding whether to affirm the denial of benefits.

Dr. Fink thought her more intelligent than her IQ score of 68 implied, and concluded that she could function in “typical work environments,” though he didn’t explain what he meant by the term. Three years later two other psychologists evaluated the plaintiff and concluded that despite her serious mental deficiencies she *704 would be able to work. One of them, however, advised that at first she should work part time, and in “sheltered employment,” which is a euphemism for work that the job market would not consider productive employment. See 20 C.F.R. § 404.1573(c). The regulation explains that work done in sheltered employment “may show that you have the necessary skills and ability to work at the substantial gainful activity level,” but a person capable of working only in sheltered employment is deemed disabled and therefore entitled to receive social security disability benefits.

A physician examined the plaintiff at the request of the Social Security Administration. He reported that her hip problem reduced the range of motion of her left leg and caused tenderness in the knee and hip of that leg. He predicted that the problems with her leg would get worse.

At her hearing before an administrative law judge (held in 2011, when the plaintiff was 22), she testified as follows: She lives at home with her mother, who does all the household chores. She can read only “small letters” (apparently she meant short words) and “kindergarten stuff.” She does not use a computer and cannot obtain a driver’s license because she can’t read the test that one must pass to obtain a learner’s permit. Her entire work history consists of three days of part-time janitorial work in high school. She used a wheelchair in high school because of her defective left leg, which makes it difficult for her to walk or stand. She sometimes uses crutches. A further complication, so far as ability to engage in productive employment is concerned, is her severe obesity. She is five feet six inches tall and weighs 240 pounds. Her Body Mass Index is therefore 38.7. A person with a BMI of 30 or higher is classified as obese, and if his or her BMI is above 40 as morbidly obese; the plaintiffs BMI is very close to 40.

Ordinarily a person with an IQ under 70 and at least one additional impairment that imposes a limitation on ability to work (and she has two such impairments — her leg problem and her obesity) is automatically deemed to be disabled. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05(C). But the administrative law judge concluded that her IQ score of 68 was invalid. He based this conclusion mainly on Dr. Fink’s report, which while stating that the plaintiff “appeared to make a sincere effort to perform the test tasks to the best of her ability,” opined that because the results of the IQ test included “considerable intra-test scatter” this indicated “that there is higher potential and that an estimate of borderline intellectual functioning is the most appropriate conclusion.” “In-tratest scatter” just means that the variance in her scores on different questions in the IQ test was high. Dr. Fink did not explain why this signified a “higher potential” for intellectual activity. Nor did he opine on how much higher her intellectual potential is, but the implication is that he thought her true IQ at least 70, as that is the bottom of the “borderline intellectual functioning” range, “Borderline Intellectual Functioning,” Wikipedia, http://en. wikipedia.org/wiki/BorderlinerintellectuaL functioning, and he thought she was in that range. We’ll assume he was correct.

The administrative law judge was also impressed by the statement by another of the psychologists that the plaintiff has a “sarcastic nature,” displayed when she said to the psychologist: “They said I was doing normal stuff at school, but I wasn’t. I never knew a normal kid who would just take the elevator just to be doing it. Or leaving class to go to Resource. I never used the stairs at school. Is that normal?” That doesn’t seem sarcastic — it seems like *705 a serious, though not entirely coherent, effort to explain her failure tof fit in at school — but of course we weren’t there and maybe her tone was sarcastic. But the psychologist didn’t actually say he considers mentally retarded people to be incapable of sarcasm, let alone point to a psychological literature that might support such a belief. Chimpanzees have been said to be capable of sarcasm, Wales Ape & Monkey Sanctuary, www.ape-monkey-rescue.org. uk/chimpfacts.html, and their intellectual abilities are bound to be inferior to those of a human being with an IQ of 68 or 70, considering that the chimpanzee’s brain is only a third the size of the average human brain (in particular, the human cerebral cortex is much larger than the chimp’s). The great apes, including chimpanzees, are believed to have an intellectual capacity equal to that of a 8 or 4 year old human being. See “Chimpanzee,” Wikipedia, http://en.wikipedia.org/wiki/ Chimpanzee#Intelligenee; Dennis O’Neill, “Humans,” http://anthro.palomar.edu/ primate/prim_8.htm.

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766 F.3d 702, 2014 U.S. App. LEXIS 17266, 2014 WL 4370648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heather-browning-v-carolyn-colvin-ca7-2014.