Youngblood v. Colvin

Filing 36

ORDER REMANDING CASE to the Commissioner of Social Security signed by Judge J P Stadtmueller on 3/4/14, pursuant to Sentence Four of 42 U.S.C. § 405(g) and the Commissioner's request; and, denying Plaintiff's request 32 and 34 that the Court order that she be awarded benefits. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACQUELINE YOUNGBLOOD,
Plaintiff,
v.

Case No. 13-CV-209-JPS

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

ORDER
Defendant.
On February 27, 2013, the plaintiff, Jacqueline Youngblood, filed her
complaint in this case, appealing the decision of Administrative Law Judge
Margaret O’Grady (“the ALJ”), which found Ms. Youngblood not disabled
and, therefore, denied her request for Supplemental Security Income and
Medicaid. (Docket #1). Ms. Youngblood filed a brief in support of her
position, whereafter the Commissioner moved to remand the case for further
proceedings. (Docket #15, #16). Ms. Youngblood responded to the
Commissioner’s motion arguing that, instead of remanding the case, the
Court should find her disabled and order that she be awarded benefits.
(Docket #18). This led to some confusion amongst the parties and the Court,
as each attempted to make sense of how to proceed when the Commissioner,
herself, was requesting remand. The Court issued an order reversing and
remanding the case to the Commissioner, which it later vacated. (Docket #21,
#31). It then requested additional briefing from the parties, which is now
complete. (Docket #31, #32, #33, #34, #35).
The parties agree that the ALJ erred. In fact, as already mentioned, the
Commissioner readily acknowledges that error and requests that the Court
simply remand the case. (E.g. Docket #33, at 9–10). The Commissioner assures

the Court that, upon remand, the Appeals Council will refer the case to an
ALJ to gather additional evidence, re-weigh the medical opinions, and reevaluate whether Ms. Youngblood’s impairments meet Listing 12.05. (Docket
#33, at 9).1 Ms. Youngblood, meanwhile, maintains that the Court must
reverse and remand this case for an award of benefits. (E.g. Docket #32, at
8–9). She asserts that she meets every requirement of Listing 12.05C, that the
record can support only that conclusion, and, therefore, that the Court must
order that she be awarded benefits. (Docket #32, at 8–9).
Thus, rather than deciding whether the ALJ erred warranting a
remand, as the Court is normally called upon to do in Social Security cases,
the Court’s task here is only to determine whether Ms. Youngblood so clearly
satisfies Listing 12.05C that the Court should order that she be awarded
benefits. In other words, the only issue at this point is whether an award of
benefits or a remand for further proceedings is appropriate.
“An award of benefits is appropriate only where all factual issues
have been resolved and the ‘record can yield but one supportable
conclusion.’” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 356 (7th Cir. 2005)
(quoting Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)). This is Ms.
Youngblood’s burden to establish. Allord v. Astrue, 631 F.3d 411, 416 (7th Cir.
2011) (citing 20 C.F.R. § 404.1514; Howell v. Sullivan, 950 F.2d 343, 348 (7th Cir.
1

This position is understandable, but begs the question: why, if the
Commissioner and the Appeals Council are now so certain of ALJ error and the
possibility of correcting the error on remand, did this case warrant an appeal?
Couldn’t the Appeals Council have identified the problems in the ALJ’s opinion in
the first instance, and remanded the case for an additional hearing at that juncture?
Doing so would have spared the parties and the Court considerable resources. This
is yet another demonstration of the dysfunctionality of the Social Security system,
and the difficult situation that both the Commissioner and the Court all too often
find themselves confronting when reviewing these cases.

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1991)). Thus, to be entitled to the relief she requests, Ms. Youngblood must
show that the record establishes only one supportable conclusion: that she
meets every requirement of Listing 12.05C.
Listing 12.05C has four requirements: “(1) significantly subaverage
general intellectual functioning; (2) deficits in adaptive functioning initially
manifested during the developmental period before age 22; (3) a valid verbal,
performance, or full scale IQ of sixty through seventy; and (4) a physical or
other mental impairment imposing an additional and significant
work-related limitation of function.” Adkins v. Astrue, 226 F. App’x 600,
604-05 (7th Cir. 2007) (citing 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.05;
Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999)); see also Charette v. Astrue,
508 F. App’x 551, 553 (7th Cir. 2013). Ms. Youngblood must show that the
record supports each of those requirements; failure to show even one means
that the Court must remand this case for further proceedings.
The first two requirements—significantly subaverage intellectual
functioning and deficits in adaptive functioning—are sometimes listed and
addressed together, because both are taken from Listing 12.05’s introductory
language, whereas the remaining two requirements are specific to subsection
C of Listing 12.05. See, e.g., Grasso v. Colvin, No. 13-CV-112, 2013 WL 4046338
(E.D. Wis. Aug. 8, 2013) (describing Listing 12.05C as having three, rather
than four, requirements by combining the first two requirements) (citing
Charette, 508 F. App’x at 553; Thackery v. Astrue, No. 11–CV–1488, 2013 WL
1319595, at *3 (S.D. Ind. Mar. 29, 2013); Lakes v. Astrue, No. 11-CV-3592, 2013
WL 623022, at *9 (N.D. Ill. Feb. 19, 2013); Witt v. Barnhart, 446 F. Supp. 2d 886,
894 (N.D. Ill. 2006)); Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012)
(describing Listing 12.05’s introductory paragraph, which includes both of
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the first two requirements, as “Prong 1”); Mendez v. Barnhart, 439 F.3d 360,
361 (7th Cir. 2006) (discussing Listing 12.05’s introductory paragraph).
The Court will, therefore, address those two requirements together,
although the majority of the Court’s discussion focuses on the latter. In fact,
the Court will assume that Ms. Youngblood has established that she suffers
from significantly subaverage general intellectual functioning. There is a
good deal of evidence that would support that conclusion. On the other
hand, the question of whether there is evidence of deficits in adaptive
functioning initially manifested before age 22 is much closer.
In support of her argument that the record clearly establishes adaptive
functioning deficits prior to age 22, Ms. Youngblood cites to two portions of
the record: Transcript Page 264 and Transcript Page 29.2 (Docket #32, at 3
(citing Tr. 264, 29)). Transcript Page 264 is a page from a form titled
“Psychiatric Review Technique,” which was completed by Keith Bauer, Ph.D.
(Tr. 260–273 ). The page, itself, includes only a checkbox of Listing 12.05, on
which Dr. Bauer checked that Ms. Youngblood suffered from significantly
subaverage general intellectual functioning with deficits in adaptive
functioning manifested prior to age 22 and had received a valid verbal,
performance, or full scale IQ of 60 through 70. (Tr. 264). A majority of the
remaining pages in this form are blank. (See Tr. 260–273). On some, Dr. Bauer
checked boxes regarding Ms. Youngblood’s degree of limitation. (See Tr. 11).
However, other than Dr. Bauer’s conclusions, there is nothing in the form in

2

Despite the Court’s request that Ms. Youngblood specifically address each
of Listing 12.05C’s requirements, she has practically ignored the first requirement.
In her briefs, she either specifically mentions deficits in adaptive functioning
manifesting prior to age 22 or discusses “mental retardation” broadly. Thus, at the
very least, she pays short shrift to addressing the first requirement.

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the way of discussion or evidence that Ms. Youngblood does, indeed, suffer
from significantly subaverage general intellectual functioning with deficits
in adaptive functioning manifested prior to age 22. (Tr. 260–273).
Transcript Page 29 is not much different. It is a single-page form titled
“Disability Determination and Transmittal,”signed by Jack Spear, Ph.D., and
Robert T. Callear, M.D., on which the doctors gave Ms. Youngblood a
secondary diagnosis of “Mild Mental Retardation.” (Tr. 29). Other than
having checked other coded boxes and having provided an unrelated
primary diagnosis, the doctors did not provide any other information on this
form. (Tr. 29). There is nothing, whatsoever, that specifically addresses Ms.
Youngblood’s adaptive functioning deficits prior to age 22. (Tr. 29).3
In her reply, Ms. Youngblood adds to her discussion the opinion of
William Nimmer, Ph.D., which she argues establishes her mental retardation.
(E.g., Docket #34, at 1–2 (citing Tr. 251–52)). And there is no doubt that Dr.
Nimmer did diagnose Ms. Youngblood with mild mental retardation. (Tr.
251 (listing mild mental retardation at Axis II)). However, as with the opinion
signed by Drs. Spear and Callear, this conclusion does not address,
specifically, Ms. Youngblood’s adaptive functioning deficits prior to age 22.
As the Court already mentioned, it is Ms. Youngblood’s burden to
establish that the record can support only one conclusion: that an award of
benefits is appropriate. See, e.g., Briscoe, 425 F.3d at 356 (quoting Campbell, 988
F.2d at 744); Allord, 631 F.3d at 416 (citing 20 C.F.R. § 404.1514; Howell, 950
F.2d at 348).

3

Transcript Pages 27 and 28 both contain information similar to that found
on Transcript Page 29.

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Ms. Youngblood has not carried that burden. Most of the evidence
that Ms. Youngblood relies on to establish the intellectual and adaptive
functioning requirements—specifically the reports of Dr. Nimmer and Drs.
Spear and Callear—do not fully support her contention. Indeed, at best,
those reports establish mental retardation. That fact would certainly go to
Ms. Youngblood’s general intellectual functioning, but would not address
her general adaptive functioning prior to age 22.
Meanwhile, her strongest piece of evidence—Dr. Bauer’s report, in
which he checked a box indicating that Ms. Youngblood suffers from
significantly subaverage general intellectual functioning with adaptive
functioning limitations manifested prior to age 22—while constituting a
definite opinion, is not supported by significant evidence. Moreover, it is
called into question by Dr. Nimmer’s report, which includes substantial
amounts of information that would support a conclusion that she does not
suffer from adaptive functioning limitations that manifested prior to age 22.
There is no specific definition for the term “deficits in adaptive
functioning,” but the Seventh Circuit has found it to “denote[ ] inability to
cope with the challenges of ordinary everyday life.” Novy v. Astrue, 497 F.3d
708, 710 (7th Cir. 2007). As the Seventh Circuit noted, “[i]f you cannot cope
with those challenges, you are not going to be able to hold down a full-time
job.” Id. In Novy, the evidence established that the claimant lived on her own,
cared for children, paid her bills, and avoided eviction, and therefore did not
suffer from adaptive functioning deficits. Id. There is no precise legal test to
determine whether deficits in adaptive functioning exist; rather, the
factfinder must consider the claimant’s ability “to cope with the challenges
of daily life.” See Charette, 508 F. App’x at 553 (citing Novy, 497 F.3d at 710).
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Given the substantial information in Dr. Nimmer’s report, there is
evidence that could support a finding that Ms. Youngblood does not suffer
from adaptive functioning deficits. In this regard, Dr. Nimmer’s report
establishes that: (1) Ms. Youngblood is happily married and has 8 children,
a number of whom remain at home (Tr. 247); (2) she has worked in daycare
settings (Tr. 248); (3) she wakes up at 6:00 a.m. on most days to send her
children to school (Tr. 249); (4) prior to her cancer surgery, she was able to
complete tasks and domestic duties at home, though she performs less now
(Tr. 249); (5) she has a number of friends and acquaintances, many through
church (Tr. 249); and (6) she will read limited materials, such as brochures
and TV guides, though she struggles to read mail or perform basic math (Tr.
249). None of these items weighs firmly in favor of either the existence of or
absence of adaptive functioning deficits. Certainly, they present a much more
nuanced picture of Ms. Youngblood’s abilities than the simple checking of a
box, as performed by Dr. Bauer. At the very least, they create some
uncertainty as to whether Ms. Youngblood actually suffers from adaptive
functioning deficits.
Moreover, Dr. Nimmer’s report includes evidence that Ms.
Youngblood’s adaptive functioning deficits did not manifest before age 22.
Dr. Nimmer’s report states that “Ms. Youngblood dropped out of school
in the 11th grade following the difficulties noted above [referring to the
early death of Ms. Youngblood’s parents]. She was in regular education
programming only, and had positive behavior relatedness to children and
staff there.” (Tr. 247–48). This seems to weigh strongly against a finding that
Ms. Youngblood exhibited adaptive functioning deficits prior to age 22.
There is now some question as to whether Ms. Youngblood was in special

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education class—perhaps explained by the fact that “[s]he had speech
therapy in grade school due to stuttering,” (Tr. 248) although the Court is not
certain—but even that fact, alone, would not be enough to establish the onset
of adaptive functioning limitation prior to age 22. See, e.g., Hill v. Colvin, No.
1:12-CV-01126, 2013 WL 5309915 (S.D. Ind. Sept. 23, 2013) (noting that special
education placement may be for a variety of reasons, which may or may not
include limitations in adaptive functioning; therefore, where plaintiff’s only
evidence of adaptive functioning deficits was evidence that he had
participated in special education classes, but the plaintiff did not produce
evidence of the nature of those classes—similar to the situation now before
the Court—the ALJ was justified in finding Listing 12.05C had not been
established). In recent years, she has attempted to obtain a GED, but has
struggled due to a low reading level and potential dyslexia, but that does not
establish Ms. Youngblood’s abilities prior to age 22. (Tr. 248). Again, the
evidence creates many questions—it could weigh either way.
Finally, to the extent that Ms. Youngblood relies very heavily on her
low IQ scores, the Court must point out that, “[w]hile a qualifying IQ score
may be prima facie evidence that an applicant suffers from ‘significantly
subaverage general intellectual functioning,’ § 12.05, there is no necessary
connection between an applicant's IQ scores and her relative adaptive
functioning.” Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir. 2012) (citing Novy,
497 F.3d at 709; Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012); Randall v.
Astrue, 570 F.3d 651, 656–61 (5th Cir. 2009); Wall v. Astrue, 561 F.3d 1048, 1062
(10th Cir. 2009); Harris v. Comm'r of Soc. Sec., 330 F. App’x 813, 815 (11th Cir.
2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); but see Markle v.
Barnhart, 324 F.3d 182, 187 (3rd Cir. 2003)).
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For all of these reasons, the Court is obliged to find that Ms.
Youngblood has not carried her burden. The record is, at the very least,
equivocal on the issues of the existence of adaptive functioning deficits and
whether any such deficits manifested prior to the time Ms. Youngblood
reached the age of 22. Thus, even assuming that Ms. Youngblood suffers
from significantly subaverage general intellectual functioning, she still cannot
establish that she satisfies Listing 12.05C. Most certainly, she has not
established that every factual issue has been resolved and that the record can
support only her requested conclusion, as is required under Briscoe. 425 F.3d
at 356 (quoting Campbell, 988 F.2d at 744).
The Court is, therefore, likewise required to remand this case, as
requested by the Commissioner, for further proceedings. The Court need not
address the remaining requirements, but points out that there is strong
support in the record for the IQ test scores, seeing as every doctor found that
Ms. Youngblood’s IQ fell within the 60–70 range, making her mentally
retarded or mildly mentally retarded. (Tr. 27–29, 251, 264). The Court still
believes that the Commissioner’s position regarding retesting due to
chemotherapy is a weak one. When so many doctors have weighed in
supporting Ms. Youngblood (even those affiliated with the Commissioner),
the Court questions the benefit of additional testing. It still seems to be “a
desperate attempt to get a second bite at the apple.” (Docket #21, at 12).
Meanwhile, the parties hardly mention the remaining requirement—the
existence of a physical or other mental impairment imposing an additional
and significant work-related limitation of function—likely because there is
substantial evidence in its support. (Tr. 26 (ALJ finding multiple severe
impairments, including “status post mastectomy of the left breast, secondary

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to breast cancer, currently in remission, mild degenerative joint disease of the
right foot, flat feet, complaints of musculoskeletal pain and obesity…”)). But,
because the Court must remand the case on the adaptive functioning deficits
issue, these matters may still be open to further development, as the
Commissioner requests.
The Court reiterates its suggestion to the Commissioner to re-assign
this case on remand. (See Docket #21, at 15). There is no evidence of bias, but,
seeing as the ALJ has now twice heard this case and erred both times, it
seems that reassignment would be the wisest course; indeed, the Court may
recommend so. See, e.g., Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 2003)
(citing Travis v. Sullivan, 985 F.2d 919, 923–24 (7th Cir. 1993); Ventura v.
Shalala, 55 F.3d 900, 904–05 (3d Cir. 1995); Briscoe, 425 F.3d at 357;
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)).
Finally, the Court points out that it had some concern that this case
may have been moot as a result of the Commissioner’s offer to remand the
case. A case becomes moot when the defendant offers to satisfy the plaintiff’s
entire demand. See, e.g., Alswager v. Rocky Mountain Instrumental Labs., Inc.,
474 F. App’x 482, 484 (7th Cir. 2012) (citing Thorogood v. Sears, Roebuck & Co.,
595 F.3d 750, 752–53 (7th Cir. 2010); Gates v. Towery, 430 F.3d 429, 431–32 (7th
Cir. 2005); Holstein v. City of Chicago, 29 F.3d 1145, 1147 (7th Cir. 1994); Rand
v. Monsanto Co., 926 F.2d 596, 598 (7th Cir. 1991); Alliance to End Repression v.
City of Chicago, 820 F.2d 873, 878 (7th Cir. 1987); Weiss v. Regal Collections, 385
F.3d 337, 340 (3d Cir. 2004)). Ms. Youngblood’s original demand could have
been satisfied by the Commissioner’s offer of remand. (See Compl. at 3).
However, Ms. Youngblood having opposed that offer (Docket #18), the Court
finds that the Commissioner’s offer would not have satisfied Ms.
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Youngblood’s actual and entire demand, meaning that the case was not
rendered moot, and the Court may enter an order resolving this case.
Accordingly,
IT IS ORDERED that, pursuant to Sentence Four of 42 U.S.C. § 405(g),
and in accordance with the Commissioner’s request (Docket #33, #35) this
case be and the same is hereby REMANDED for further proceedings; Ms.
Youngblood’s request that the Court order that she be awarded benefits
(Docket #32, #34) be and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 4th day of March, 2014.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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