In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2017

JUDITH MENDEZ,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:03-CV-309—Andrew P. Rodovich, Magistrate Judge.

____________

ARGUED JANUARY 25, 2006—DECIDED FEBRUARY 28, 2006

____________

Before POSNER, MANION, and WOOD, Circuit Judges.

POSNER, Circuit Judge. 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
2 No. 05-2017

treated by the antipsychotic drug Zoloft, occasional psychiatric therapy, and one hospitalization, in which after being

diagnosed as suffering from major depression she was

placed on suicide watch. She has pain and weakness in her

legs, causing her to have “a wide-based, slow gait, with a

somewhat shaky and clumsy walk.” Nevertheless the

administrative law judge did not think her disabled. Her

depression and anxiety “seem,” he said, “to be episodic and

of relatively short duration, since she has never followed

through consistently with any counseling services offered

her, and has apparently taken Zoloft only intermittently as

her symptoms recur . . . . [S]he cares for her children [she

has four children, the first born when she was 12 years old,

and no husband] and her personal needs; assists with the

cooking, cleaning, laundry, and shopping; and has no

difficulty getting along with family members, neighbors and

friends . . . . [T]he deficits noted in concentration, persistence or pace during the psychological evaluations are

attributable to her intellectual limitations.” Noting contradictions in her testimony, such as that she slept all day yet

cared for her children, the administrative law judge pronounced her not “particularly credible.”

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, 925 F.2d 220, 223

(7th Cir. 1991); U.S. Dept. of Labor, Bureau of Labor Statis-
No. 05-2017 3

tics, Occupational Outlook Handbook: 2004-05 Edition 6, 373

(Bulletin 2570, March 2004). IQ scores are not absolute tests

of acuity; a person with an IQ of 70 cannot be said to be half

as smart as a person with an IQ of 140. Intelligence is, in

effect, graded on a curve. Roughly 95 percent of the population has an IQ between 70 and 130, which places Mendez

toward the top of the bottom 2.5 percent or so, Joseph D.

Matarazzo, Wechler’s Measurement and Appraisal of Adult

Intelligence 124-25, 128 (5th ed. 1972), but does not indicate

how far her intelligence falls short of that of the average

person. Id. at 126. Generally, an IQ of 70 is considered just

at the borderline of mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders, Text Revision (DSM-IV-TR) 41-43 (4th ed. 2000);

Stedman’s Medical Dictionary 1557 (27th ed. 2000); Medline

Plus Medical Encyclopedia, http://www.nlm.nih.gov/

medlineplus/ency/ article/001912.htm, visited Jan. 30,

2006. That is why the grid requires an additional impairment in order to establish disability. The administrative law

judge did not apply the regulation that we have quoted,

however, because he erroneously stated that “the claimant’s

last IQ scores are all at 70 or above.”

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
4 No. 05-2017

listing.” (Mendez relies on C, which we quoted earlier.) The

introductory paragraph of section 12.05, to which section

12.00(A) is referring, states: “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.” The government argues that the effect of these linked passages is that

the administrative law judge must consider not only IQ and

(other) impairments; he must first determine that the

claimant is mentally retarded as defined in section 12.05’s

introductory paragraph. The Eighth Circuit recently rejected

the government’s argument, Maresh v. Barnhart, 431 F.3d

1073, 1075 (8th Cir. 2005), but without discussion.

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, 536 U.S. 304

(2002), states have adopted criteria for retardation that, like
No. 05-2017 5

the regulation in this case, require besides a low IQ limitations in the skills required in everyday life. E.g., Commonwealth v. Miller, No. 399 CAP, 2005 Pa. LEXIS 2997, at *14-17

(Pa. Dec. 27, 2005); Ex parte Perkins, 851 So. 2d 453, 456 (Ala.

2003).

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 workrelated 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 antipsychotic 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, 430 F.3d 865, 867 (7th

Cir. 2005); Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir.

2005); Kelley v. Callahan, 133 F.3d 583, 588-89 (8th Cir. 1998);

Smolen v. Chater, 80 F.3d 1273, 1284 n. 7 (9th Cir. 1996).

(Some weight is appropriate. Warner v. Commissioner of

Social Security, 375 F.3d 387, 392 (6th Cir. 2004).) The

pressures, the nature of the work, flexibility in the use of

time, and other aspects of the working environment as well,

often differ dramatically between home and office or factory

or other place of paid work. We do not know
6 No. 05-2017

what Mendez’s “assist[ance]” in performing household chores amounts to. We do know that she does not (as

the administrative law judge’s opinion may imply) take care

of her four children by herself, in part because she’s worried

about choking the youngest child when she feeds him

because she doesn’t know when to stop the feeding, an

uncertainty that does not augur well for her ability to

perform even the simplest tasks outside the home. You

don’t want someone who doesn’t know when to stop

watering your plants; she is likely to drown them.

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, 430 F.3d at 868. Besides her low

IQ and her depression, she walks unsteadily as we know,

doubtless in part because of obesity; she is only 5 feet 1 inch

tall but weighs 184 pounds. The administrative law judge

should have considered whether her difficulty in getting

around would interact with her cognitive limitations

and her psychiatric condition to make her incapable of

complying with even simple workplace directives.

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
No. 05-2017 7

the Social Security Administration for further proceedings

consistent with this opinion.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-28-06