2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-1-2014

Keith Illig v. Commissioner Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4596

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-4596

___________

KEITH JEREMY ILLIG,

 Appellant

v.

COMMISSIONER SOCIAL SECURITY

_______________________

On Appeal from the District Court 

for the Western District of Pennsylvania

D.C. Civil No. 2-13-cv-00380 

(Honorable Robert C. Mitchell)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 06, 2014

Before: HARDIMAN, SCIRICA, and ROTH, Circuit Judges

(Filed: July 1, 2014)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Keith J. Illig appeals from an order of the District Court affirming the decision of 

the Administrative Law Judge finding that Illig is not entitled to Supplemental Security 

Income and granting the motion of the Acting Commissioner of Social Security for 

summary judgment. Because the ALJ’s finding that Illig failed to meet the IQ 
2

requirement for mental retardation in the Social Security Administration’s Listings of 

Impairments was not supported by substantial evidence, the District Court erred in 

affirming the ALJ’s decision. Accordingly, we will vacate the court’s order and remand 

the matter for further proceedings.1

I.

Appellant Keith J. Illig is a high school graduate with no work history.2 On July 

15, 2009, Illig protectively filed an application for SSI benefits under Title XVI of the 

Social Security Act (“Act”), 42 U.S.C. §§ 1381-1383f, alleging he became disabled on 

October 1, 1988. School records show Illig received special education instruction 

throughout his school career but was mainstreamed in certain subjects. Medical records 

indicate Illig has been diagnosed with a learning disability, depressive disorder, anxiety 

disorder, and borderline intellectual functioning. In 1994, at age 8, Illig was noted to 

have intelligence in the “low average” range. In 2000, at the age of 14, Illig was assessed 

with a verbal IQ score of 55, performance IQ score of 68, and full-scale IQ score of 57. 

In January 2005, in connection with a prior claim for SSI benefits, Illig was 

evaluated by psychologist Julie Uran, Ph.D. At the time of this evaluation, Illig was 18 

years of age and in 12th grade. Dr. Uran tested Illig pursuant to the Wechsler Adult 

Intelligence Scale–III format and assessed Illig with a verbal IQ score of 70, performance 

IQ score of 80, and full scale IQ score of 73. Dr. Uran also concluded that Illig’s overall 

 

1

The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). We 

have jurisdiction pursuant to 28 U.S.C. § 1291. 

2 Because we write for the benefit of the parties, we only briefly address the evidence 

Illig produced in support of his application for SSI benefits.
3

intellectual abilities were within the mild range of retardation.

Illig’s July 15, 2009, claim for SSI benefits was denied at the initial level of the 

administrative review process. At Illig’s request, the ALJ held a hearing on February 11, 

2011, at which both Illig, represented by counsel, and a vocational expert testified. On 

March 11, 2011, the ALJ ruled Illig was not disabled and not entitled to SSI benefits. 

The Appeals Council declined to review the ALJ’s decision, making the ALJ’s decision 

the final decision of the Commissioner. 

On March 20, 2013, Illig commenced an action in the United States District Court 

for the Western District of Pennsylvania seeking judicial review of the Commissioner’s 

final decision.3 Both parties moved for summary judgment. On October 9, 2013, the 

District Court affirmed the Commissioner’s final decision that Illig was not disabled 

within the meaning of the Act and granted the Commissioner’s motion for summary 

judgment. Illig filed this timely appeal.

II.

Illig advances two arguments on appeal. First, he contends the District Court’s 

grant of summary judgment for the Commissioner should be reversed because the ALJ 

erred in concluding that he did not meet or equal the IQ requirement of Listing 12.05C 

for mental retardation, 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C. Second, Illig argues 

that we should remand the case because the ALJ failed to make any findings on the other 

 

3

The parties agreed that the matter would be referred to a Magistrate Judge and that the 

Magistrate Judge’s decision would be the decision of the District Court.
4

Listing 12.05C criteria.4 As noted, we will vacate the District Court’s order and remand. 

A.

Like the District Court, we must uphold the agency’s determination unless it is not 

supported by substantial evidence in the record. Rutherford v. Barnhart, 399 F.3d 546, 

552 (3d Cir. 2005). “Substantial evidence is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Id. (internal quotation marks and 

citation omitted). Such evidence “is more than a mere scintilla but may be somewhat less 

than a preponderance of the evidence.” Id. (internal quotation marks and citation 

omitted). 

To be eligible for SSI disability benefits, a claimant must show he has a medically 

determinable impairment of such severity that it prevents him from engaging in any past 

relevant work or any other substantial gainful activity that exists in the national economy. 

42 U.S.C. § 1382c(a)(3)(A), (B); 20 C.F.R. § 416.905(a). The Commissioner has 

developed a five-step sequential evaluation process to determine whether a claimant is 

disabled under the Act.5 20 C.F.R. § 416.920. This case concerns the third step in that 

process—whether Illig has an impairment that meets or equals the requirements of an 

 

4

Illig alternatively requests that we grant him SSI benefits. But we will remand to give 

the ALJ the opportunity to address whether Illig met or equaled the other Listing 12.05C 

criteria. See Reefer v. Barnhart, 326 F.3d 376, 382 (3d Cir. 2003) (remanding because 

the ALJ failed to develop the record adequately and explain why he credited certain 

medical reports over others). 

5

This five-step process requires the ALJ to consider sequentially whether the claimant: 

(1) is working, (2) has a severe impairment, (3) has an impairment that meets or equals 

the requirements of an impairment in the Listings, (4) can return to his past relevant 

work, and, if not, (5) whether he can perform other work in the national economy. 20 

C.F.R. § 416.920.
5

impairment in the Listings. The ALJ determined that Illig’s severe impairments—a 

learning disability, borderline intellectual functioning, depressive disorder, and anxiety 

disorder—did not meet or equal, singly or in combination, the requirements of a 

presumptively disabling impairment under the Listings.6 

Illig argues the ALJ’s decision was not supported by substantial evidence because 

the ALJ erred in finding Illig’s impairments did not meet or equal Listing 12.05C for 

mental retardation. At the time of the ALJ’s decision, Listing 12.05C provided, in 

relevant part:

12.05 Mental Retardation: Mental retardation refers to significantly 

subaverage general intellectual functioning with deficits in adaptive 

functioning initially manifested 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, 12.05C.7

Therefore, to meet or equal Listing 12.05C, a claimant needs to show: (1) a valid 

verbal, performance, or full scale IQ of 60 through 70, (2) a physical or other mental 

 

6

The Listings are a regulatory device used to streamline adjudication of benefits by 

identifying those claimants whose medical impairments are so severe that they are 

considered presumptively disabled, making further inquiry into their vocational 

background unnecessary. 20 C.F.R. § 416.925(a); see Sullivan v. Zebley, 493 U.S. 521, 

532 (1990). 

7

This regulation was revised in 2013 and now refers to “intellectual disability” rather 

than “mental retardation.” Change in Terminology: “Mental Retardation” to “Intellectual 

Disability,” 78 Fed. Reg. 46,499 (Aug. 1, 2013) (to be codified at 20 C.F.R. pts. 404, 

416). The substance of the Listing has not changed.
6

impairment imposing an additional and significant work-related limitation of function, 

and (3) that the mental retardation initially manifested during the developmental period, 

which means before age 22. Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003).8 

Only one of the verbal, performance, or full scale IQ scores must meet the requirement of 

being between 60 and 70. Id. at 186. And we consider the claimant’s lowest score for 

the IQ requirement. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00D (“In cases where more 

than one IQ is customarily derived from the test administered, e.g., where verbal, 

performance, and full scale IQs are provided in the Wechsler series, we use the lowest of 

these in conjunction with 12.05.”); Burns v. Barnhart, 312 F.3d 113, 125 n.6 (3d Cir. 

2002) (noting that the regulations direct us to use the lowest score for the IQ requirement 

under Listing 12.05 if the intelligence test administered customarily yields more than one 

IQ score).

The ALJ credited Illig’s January 2005 Wechsler Adult Intelligence Scale–III IQ 

scores—including Illig’s verbal IQ score of 70—in his decision finding that Illig failed to 

meet or equal Listing 12.05C: 

Finally, the ‘paragraph C’ criteria of listing 12.05 are not met because the 

claimant does not have 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. As noted 

above, the claimant has a full-scale IQ of 73, a verbal IQ of 70, and a 

performance IQ of 80 (Exhibit B1/F1).

The ALJ correctly used Illig’s verbal IQ score of 70, the lowest score. But the ALJ erred 

 

8

The parties dispute whether a claimant must also meet a fourth requirement—showing 

deficits in adaptive functioning—in order to meet or equal Listing 12.05C. But we need 

not reach this issue because the ALJ erred in determining that Illig failed to meet the IQ 

requirement for Listing 12.05C and made no findings on whether Illig demonstrated 

deficits in adaptive functioning.
7

in concluding Illig’s valid verbal IQ score of 70 did not meet the requirement of Listing 

12.05C—that the IQ score be a “valid verbal, performance, or full scale IQ of 60 through 

70.” A valid verbal IQ score of 70 meets that requirement, so the ALJ’s conclusion is not 

supported by substantial evidence. See Markle, 324 F.3d at 186–87 (concluding an ALJ 

erred in determining a claimant with a valid full scale IQ of 70 did not meet the IQ 

requirement of Listing 12.05C); see also Maresh v. Barnhart, 438 F.3d 897, 899–900 

(8th Cir. 2006) (noting the Commissioner did not contest that claimant’s verbal IQ score 

of 70 met the IQ requirement of Listing 12.05C). Accordingly, the District Court erred in 

granting summary judgment to the Commissioner, and we will vacate that order.

B.

Illig next argues that because the ALJ failed to make any findings on the other 

Listing 12.05C criteria, we must remand the case to the ALJ for further proceedings. The 

Commissioner contends remand would be futile because the ALJ’s decision contains 

sufficient evidence for us to conclude Illig has failed to demonstrate that he has deficits in 

adaptive functioning as required by Listing 12.05C.9 

The ALJ must set forth the reasoning for his decision in order to permit 

meaningful judicial review. Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 

(3d Cir. 2000). “[T]he function of Burnett is to ensure that there is sufficient 

development of the record and explanation of findings to permit meaningful review.” 

Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). Though the ALJ concluded Illig did 

 

9 We will assume without deciding that showing deficits in adaptive functioning is a 

fourth requirement of Listing 12.05C for the limited purpose of evaluating whether 

remand to the ALJ is required in this case.
8

not meet or equal Listing 12.05C because Illig did not meet the IQ requirement and did 

not have “a physical or other mental impairment imposing an additional and significant 

work-related limitation of function,” the only reasoning in the ALJ’s decision on Listing 

12.05C concerned Illig’s purported failure to meet the IQ requirement. That conclusion 

was erroneous because Illig’s verbal IQ score of 70 met that requirement. 

The ALJ made no findings concerning the other Listing 12.05C requirements—

whether Illig has other physical or mental impairments imposing an additional and 

significant work-related limitation of function, whether Illig’s mental retardation initially 

manifested before age 22, or whether Illig demonstrated deficits in adaptive 

functioning.10 Accordingly, because the ALJ failed to set forth sufficient reasoning to 

permit meaningful review of his decision, remand of this matter is required. 

III.

For the foregoing reasons, we will vacate the District Court’s order granting 

summary judgment to the Commissioner and remand to the District Court with 

instructions to remand to the ALJ for further proceedings.

 

10 Because the ALJ never made any findings as to whether Illig demonstrated deficits in 

adaptive functioning, we reject the Commissioner’s contention that we may affirm on this 

alternative basis.