Parker v. Berryhill

Filing 15

MEMORANDUM OPINION: the undersigned Magistrate Judge concludes that the decision of the Commissioner is REVERSED and this matter is REMANDED back to the Commissioner of Social Security for further proceedings consistent with this opinion. Signed by Honorable Judge Wallace Capel, Jr on 10/30/2018. (Copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOHN HUNTER PARKER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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Civil Action No.: 2:17-cv-524-WC

MEMORANDUM OPINION
I.

INTRODUCTION
On October 17, 2014, John Hunter Parker, (“Plaintiff”) filed applications for a period

of disability and disability insurance benefits and for supplemental security income,
alleging that he became disabled on April 7, 2013. The applications were denied at the
initial administrative level. Plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”).

Following the hearing, the ALJ rendered an

unfavorable decision dated August 23, 2016. Plaintiff appealed that decision and the
Appeals Council denied Plaintiff’s request for review. The ALJ’s decision consequently
became the final decision of the Commissioner of Social Security (“Commissioner”).2 See
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill shall be substituted for Acting Commissioner Carolyn
W. Colvin as the Defendant in this suit. No further action needs to be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court
for review of that decision under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both
parties have consented to the conduct of all proceedings and entry of a final judgment by
the undersigned United States Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc. 12);
Def.’s Consent to Jurisdiction (Doc. 11). Based on the court’s review of the record and the
parties’ briefs, the court REVERSES the Commissioner’s decision and REMANDS this
matter to the Commissioner for further consideration.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is

unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.
42 U.S.C. § 423(d)(1)(A).3
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(4) Is the person unable to perform his or her former occupation?
Security matters were transferred to the Commissioner of Social Security.
3

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The burden of proof rests on the claimant through Step Four. See Phillips v.
Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie
case of qualifying disability once he or she has carried the burden of proof from Step One
through Step Four. At Step Five, the burden shifts to the Commissioner, who must then
show that there are a significant number of jobs in the national economy that the claimant
can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical and
other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work
experience to determine if there are jobs available in the national economy that the claimant
can perform. Id. at 1239. To do this, the ALJ can use either the Medical Vocational

4

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits brought under Title II of the Social Security Act. Supplemental security income cases
arising under Title XVI of the Social Security Act are appropriately cited as authority in Title II cases, and
vice versa. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec.,
486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of disability and the test used to determine
whether a person has a disability is the same for claims seeking disability insurance benefits or supplemental
security income.”).

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Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert
(“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts
of the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
4

conclusions, including determination of the proper standards to be applied in
evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was thirty-one years old on the date of the ALJ’s decision. Tr. 40, 227,

229. He completed high school, during which he took special education classes. Tr. 24849. Plaintiff had past work experience as a general laborer, mechanic helper, warehouse
worker, and janitor. Tr. 82-83, 266-273. Following the administrative hearing, and
employing the five-step process, the ALJ found at Step One that Plaintiff “has not engaged
in substantial gainful activity since April 7, 2013, the alleged onset date[.]” Tr. 19. At
Step Two, the ALJ found that Plaintiff suffers from the following severe impairments:
“obesity in combination with history of right ankle fracture, schizoaffective disorder,
conduct disorder, antisocial disorder, borderline intellectual functioning, attention deficit
hyperactivity disorder, and history of seizures[.]” Id. At Step Three, the ALJ found that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments[.]” Tr. 20. Next, the ALJ
articulated Plaintiff’s RFC as follows:
[t]he claimant has the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant is
limited to occasional climbing ramps and stairs. The claimant is precluded
from climbing ladders and scaffolds. The claimant can frequently balance,
stoop, knee[l], crouch and crawl. The claimant is also precluded from
working around unprotected heights, hazardous, moving mechanical parts
and operating a motor vehicle for commercial purposes. The claimant is
limited to simple, repetitive, and routine tasks. The claimant is limited to
occasional interaction with supervisors, coworkers, and the public. The
5

claimant is also limited to having occasional changes in a routine work
setting. The claimant is precluded from production rate pace, such as
assembly line work, but can perform goal-oriented work such as an office
cleaner.
Tr. 21. At Step Four, based upon the testimony of a VE, the ALJ concluded that Plaintiff
“is capable of performing past relevant work as a janitor . . . and warehouse worker.” Tr.
29. At Step Five, based upon Plaintiff’s age, education, work experience, and RFC, the
ALJ made an alternative finding that “there are other jobs that exist in significant numbers
in the national economy that [Plaintiff] also can perform.” Tr. 30. Accordingly, the ALJ
determined that Plaintiff “has not been under a disability . . . from April 7, 2013, through
the date of this decision[.]” Tr. 31.
IV.

PLAINTIFF’S ARGUMENT
Plaintiff presents one issue on appeal:
(1) Whether, with respect to Listing 12.05(C), the ALJ erred in finding that Plaintiff
did not appear to have any significant deficits in adaptive functioning.
Doc. 10 at 3.

V.

DISCUSSION
Plaintiff argues that the ALJ erred by finding that he did not meet or equal Listing

12.05C. Id. at 3. Specifically, Plaintiff asserts that the ALJ erred by applying the wrong
legal standard and by requiring him to demonstrate “significant” deficits in adaptive
functioning. Id. Plaintiff also argues that his work history and daily activities do not rebut
the presumption of disability afforded to him by his IQ scores. Id. at 8-10.

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The Commissioner argues that the ALJ properly relied on Plaintiff’s work history
and daily activities to find that he had not demonstrated deficits in adaptive functioning.
Doc. 13 at 8. The Commissioner also argues that any error that the ALJ might have made
by using the word “significant” when discussing Plaintiff’s deficits in adaptive functioning
is harmless. Id. at n.5.
Under the Listing scheme of 12.05, a claimant must first meet the requirements of
the introductory paragraph, then the criteria of the subparagraph before he or she can be
found to meet the listing. See Listing 12.00A (“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.”). The introductory paragraph of Listing 12.05
defines “intellectual disability” as:
Intellectual disability: intellectual disability 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.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (emphasis in original). Thus, “[t]o be
considered for disability benefits under section 12.05, a claimant must at least (1) have
significantly subaverage general intellectual functioning; (2) have deficits in adaptive
behavior; and (3) have manifested deficits in adaptive behavior before age 22.” Crayton
v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). An intellectual disability satisfies the
severity requirement in paragraph C of Listing 12.05 when the claimant has “[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
7

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C). “[T]here is a rebuttable presumption that a
claimant manifested deficits in adaptive functioning before the age of 22 if the claimant
established a valid IQ score between 60-70.” Grant v. Astrue, 255 F. App’x 374, 375 (11th
Cir. 2007) (citing Hodges v. Barnhart, 276 F.3d 1265, 1266, 1268-69 (11th Cir. 2001)).
The Commissioner may rebut the presumption when the claimant’s IQ score “is
inconsistent with other evidence in the record on the claimant’s daily activities and
behavior.” Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).
In this case, the ALJ appeared to accept that Plaintiff had IQ scores sufficient to
meet Listing 12.05C, but found that the presumption of disability was rebutted by
Plaintiff’s level of adaptive functioning. In determining that Plaintiff did not satisfy Listing
12.05, the ALJ found as follows:
Although his most recent IQ scores revealed a Verbal IQ of 65, performance
IQ of 72, and a full scale of 65 [], the claimant he [sic] does not appear to
have any significant deficits in adaptive functioning given his work history
and activities of daily living, as discussed in detail . . . below. As such, the
claimant’s borderline intellectual functioning would not meet listing 12.05.
Tr. 21. Later in the decision while discussing Plaintiff’s RFC, the ALJ again noted that
“[d]espite the claimant’s low IQ, he does not appear to have any significant deficits in
adaptive functioning given his work history and activities of daily living. . . .” Tr. 26. With
respect to Plaintiff’s work history, the ALJ explained that he “had at least five years of
substantial gainful activity and has earned more than $20,000 during multiple years.” Id.
When discussing Plaintiff’s activities of daily living, the ALJ observed that:

8

[T]he claimant was reported to perform a variety of activities in his function
report and a third party function report completed by his son.[5] In his
function report, the claimant reported that he was able to prepare simple
meals, such as sandwiches and frozen dinners. He also reported he was able
to mow grass and clean the house. The claimant stated he was able to go
shopping in stores for food once a month. He stated he walked around
outside, watch [sic] television, and played with his son and niece. In a third
party function report completed by the claimant’s son, Grady Parker, the
claimant was noted to engage in activities including riding horses, fishing,
hunting, walking, and swimming. The claimant was noted to take care of
dogs, cats, and horses. Mr. Parker indicated the claimant has no problems
with personal hygiene and can prepare simple meals, such as sandwiches and
microwavable items for himself. In treatment notes, the claimant has been
to the hospital after injuries and/or seizures that involved vigorous exercise,
digging in the yard and riding an all-terrain vehicle. In his psychiatric notes,
the claimant has reported driving and helping with a family business that
appears to involve horseback riding. The claimant’s ability to perform all of
the above activities suggests that he is not as limited as alleged. Despite the
claimant’s allegations that he rarely leaves the house, the above activities
indicate the claimant frequently leaves the house and engages in outdoor
activities.
Tr. 24 (internal citations omitted).
Plaintiff contends that the ALJ applied the wrong legal standard when she found
that he had not demonstrated “significant deficits in adaptive functioning.” Doc. 10 at 3;
Tr. 21. Numerous cases in this circuit have discussed the fact that the plain language of
Listing 12.05C does not require “significant” deficits in adaptive functioning. See, e.g.,
Acoff v. Colvin, No. 15-0644-M, 2016 WL 4257555, at *8 (S.D. Ala. Aug. 9, 2016) (“[T]he
main reason the Court finds that the ALJ’s decision is not supported by substantial evidence
is because the ALJ misstated the requirements for Listing 12.05 as requiring significant

5

From the court’s reading of the testimony and third party function report, it appears that Plaintiff’s father
assisted him in completing the report. Tr. 40-41, 274.

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deficits in adaptive functioning. This is an error of law.”); Southard v. Colvin, No. 5:13cv-01870-JHE, 2015 WL 1186153, at *5 (N.D. Ala. Mar. 16, 2015) (“Listing 12.05 does
not require significant deficits in adaptive functioning, just that deficits of adaptive
functioning exist and have manifested before age 22.”); Harrel v. Colvin, No. 14-cv-20513,
2015 WL 574006, at *9 (S.D. Fla. Feb. 11, 2015) (“Listing 12.05C does not require a
claimant to show significant or marked deficits but rather, only ‘deficits in adaptive
functioning.’”) (citations omitted); Butts v. Colvin, No. 1:13-cv-130-WC, 2014 WL
1245874, at *4 (M.D. Ala. Mar. 24, 2014) (“The Commissioner must keep in mind that the
test for the introductory paragraph [of Listing 12.05] is simply deficits in adaptive
functioning, not ‘significant deficits.’”); Acoff v. Colvin, 2:13-cv-40-WC, 2014 WL
896979, at *4 (M.D Ala. Mar. 6, 2014) (“The introductory paragraph of [Listing 12.05]
simply requires deficits in adaptive functioning, not the ‘significant limitations’ in adaptive
functioning as required for a finding [of] mental retardation.”); Jones v. Colvin, No. 1:11cv-989-WC, 2013 WL 842704, at *4 n.6 (M.D. Ala. Mar. 6, 2013) (“The Commissioner
here, as well as in other cases, seems to conflate the test for a diagnosis of mental
retardation under the DSM and a finding that Listing 12.05(C) has been met. The DSM
requires ‘significant deficits’ in adaptive behavior. Whereas, the introductory paragraph
of 12.05 simply requires ‘deficits.’”).
As demonstrated above, courts have readily pointed out that Listing 12.05 does not
require an ALJ to find “significant” deficits in adaptive functioning, and the court finds
that authority exists to reverse an ALJ’s decision on this basis. See, e.g., Acoff, 2016 WL
10

4257555, at *8. However, as this court has previously noted, there is also some authority
indicating that a claimant must demonstrate “significant deficits” in order to satisfy the
listing. See Knight v. Colvin, No. 2:15-cv-905-WC, 2016 WL 7159499, at *6 n.6 (M.D.
Ala. Dec. 7, 2016) (citing Hunt v. Social Security Administration Commissioner, 631 F.
App’x 813 (11th Cir. 2015)). In Hunt, an unpublished decision from the Eleventh Circuit
Court of Appeals, the court appeared to endorse such a proposition, stating that
“[s]ubstantial evidence supports a finding that Hunt suffered no significant deficits — as
required under the first part of Listing 12.05(C) — in adaptive functioning.” Hunt, 631 F.
App’x at 816 (emphasis added); see also Hoyett v. Colvin, No. 3:15-cv-344-GMB, 2016
WL 4942009, at *5 (M.D. Ala. Sept. 15, 2016). Courts have struggled to interpret Listing
12.05 because it does not expressly require a specific level of severity that a claimant’s
deficits in adaptive functioning must reach before he or she satisfies the listing. Courts
have been reluctant to hold that any deficit, no matter how insignificant, meets the listing
and have proposed various formulations to reflect their understanding that there exists a
threshold of adaptive deficits that a claimant must demonstrate to meet the listing.
In Lewis v. Colvin, No. 3:14-cv-25/CJK, 2015 WL 5680372, at *10 (N.D. Fla. Sept.
25, 2015), the Plaintiff argued that “because Listing 12.05C does not qualify the phrase
‘deficits in adaptive functioning,’ any degree of deficit is sufficient to satisfy the Listing.”
The court reasoned:
The argument advanced here, however, has been implicitly rejected by the
Eleventh Circuit. In Perkins v. Comm’r, Soc. Sec. Admin, the ALJ found the
claimant did not meet Listing 12.05C because he lacked the requisite deficits
in adaptive functioning. 553 Fed. Appx. 870, 873-74 (11th Cir. 2014). When
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formulating Perkin’s RFC, the ALJ found, inter alia, moderate difficulties in
social functioning, and moderate difficulties in maintaining concentration,
persistence, and pace. Id. at 875. The Eleventh Circuit affirmed the ALJ’s
denial of benefits, suggesting there is nothing inconsistent between a
determination claimant lacks deficits in adaptive functioning yet still has
limitations. Thus, the correct test appears to require a determination of
whether a claimant's deficits in adaptive functioning are so slight as to
impeach the I.Q. score.
Id. (emphasis added).
The Eleventh Circuit has also framed the test as whether a claimant seeking to meet
the diagnostic criteria of Listing 12.05 has demonstrated “deficits in adaptive functioning
consistent with intellectual disability.” Rodriguez v. Comm’r of Soc. Sec., 633 F. App’x
770, 774 (11th Cir. 2015). Other courts have referred to caselaw suggesting “that the
adaptive functioning must be significantly inconsistent with the I.Q. score.” McCrae v.
Berryhill, No. 1:17-cv-228-MW/CAS, 2018 WL 3214784, at *7 (N.D. Fla. June 13, 2018)
(quoting Monroe v. Astrue, 726 F. Supp. 2d 1349, 1355 (N.D. Fla 2010)).
Perhaps due in part to the ambiguity of the test, courts have not uniformly reversed
and remanded decisions from ALJs when the decisions refer to a lack of “significant”
adaptive deficits with respect to Listing 12.05. For example, in Hoyett v. Colvin, the court
was presented with an ALJ’s decision finding that the claimant had not met Listing 12.05
due to deficits in adaptive functioning. Hoyett, 2016 WL 4942009, at *5. Elsewhere in
the decision, however, the ALJ had referred to “no significant deficits in adaptive
capacity,” and the ALJ had “relied heavily” on a state agency consultant’s opinion that the
claimant “did not have significant deficits in her adaptive functioning.” Id. (emphasis
added). The court noted that the “plain language” of Listing 12.05 did not require
12

significant adaptive deficits. Id. However, the court also acknowledged the language from
Hunt “suggesting that a claimant is required to show significant deficits.” Id. (citing Hunt,
631 F. App’x at 816). Ultimately, the court in Hoyett affirmed the ALJ’s decision because
it was “not convinced the ALJ required Hoyett to show significant deficits in adaptive
functioning”6 and because the court found that substantial evidence supported a finding
that the claimant “lacked deficits in adaptive functioning, as shown by her daily activities
and behavior.” Hoyett, 2016 WL 4942009, at *6.
Similarly, this court has previously examined the record for substantial evidence
even when the ALJ referred to a lack of “significant deficits in adaptive functioning.” See
Knight, 2016 WL 7159499, at *6 n.6. In Knight, the ALJ’s finding that the plaintiff did
not meet Listing 12.05C was due, in part, to a lack of “significant deficits in adaptive
functioning.” Id. at *5. After reviewing the decision for substantial evidence, this court
nevertheless affirmed the decision. In so doing, this court noted that the plaintiff had not
raised as a distinct claim of error the fact that the ALJ had required “significant” deficits
to be shown. Id. at *6 n.6. In dicta, this court also observed that, in light of the language
in Hunt, the appropriate standard to apply with respect to deficits in adaptive functioning
was ambiguous. Id. Nevertheless, this court found the ALJ’s decision supported by

6

The Hoyett court found that the ALJ’s use of the word “significant” was “in the context of the findings of
the State agency reviewer . . . and all but one of the ALJ’s other references to adaptive functioning did not
include the word ‘significant.’” Hoyett, 2016 WL 4942009, at *6. The court notes that, in this case, the
ALJ used the incorrect formulation of Listing 12.05C on two occasions in her decision and at no point
provided the precise regulatory language.

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substantial evidence because of the lack of deficits shown in the record as to the plaintiff’s
adaptive functioning. Id.
Based on these authorities, the court concludes that, notwithstanding the ALJ’s
reference to a “significant” adaptive deficits standard, the appropriate course is to examine
the ALJ’s decision for substantial evidence regarding whether Plaintiff has demonstrated
deficits in adaptive functioning that are inconsistent with Listing 12.05C. The court will
now undertake that analysis.
Neither Listing 12.05 nor the Social Security Regulations provide a definition of
precisely what is meant by “deficits in adaptive functioning.”

The Social Security

Administration’s Program Operations Manual System (“POMS”) imparts that adaptive
functioning refers “to the individual’s progress in acquiring mental, academic, social and
personal skills as compared with other unimpaired individuals of his/her same age.” Soc.
Sec. Admin., POMS, DI 24515.056(D)(2) (2012). Likewise, the Diagnostic and Statistical
Manual of Mental Disorders (“DSM”) explains that adaptive functioning broadly “refer[s]
to how well a person meets community standards of personal independence and social
responsibility, in comparison to others of similar age and sociocultural background.
Adaptive functioning involves adaptive reasoning in three domains: conceptual, social, and
practical.” American Psychological Association, DSM-V, p. 37 (5th ed. 2013). The
Eleventh Circuit has favorably cited both definitions in applying Listing 12.05. See, e.g.,
Schrader v. Acting Comm'r of the Soc. Sec. Admin., 632 F. App’x. 572, 576 (11th Cir.
2015); Rodriguez, 633 F. App’x at 774.
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Determining what level of adaptive functioning is consistent with an intellectual
disability is a fact-intensive inquiry, so case outcomes vary widely. See Lewis, 2015 WL
5680372, at *7 (collecting cases). Courts have found substantial evidence to support an
ALJ’s finding that a claimant failed to meet Listing 12.05 where the record demonstrated
an extensive employment history and advanced daily activities. See, e.g., Rodriguez, 633
F. App’x at 773-74 (finding substantial evidence supported ALJ’s determination that
claimant did not satisfy Listing 12.05C where the claimant attended high school without
special educational assistance, performed household chores, attended church, had a driver’s
license, and had a work history including multiple skilled and semi-skilled jobs); Schrader,
632 F. App’x. at 577 (finding substantial evidence supporting ALJ’s decision regarding
lack of deficits in adaptive functioning where, although claimant “attended special
education classes, she graduated high school with a regular diploma,” “was able to groom
herself, cook simple meals, perform household chores, drive, watch television, and babysit
her nephews without any assistance from others[,]” and she “worked part-time at the
laundromat”); Welch v. Soc. Sec. Admin., Comm’r, No. 6:14-cv-02472-SGC, 2016 WL
1270619, at *4-5 (N.D. Ala. Mar. 31, 2016) (affirming where the claimant reported “she
care[d] for herself and others in a variety of ways without assistance; socialize[d] both with
family and with friends and attend[ed] public gatherings; read[] a book per week; and
[could] handle financial matters.”).
In contrast, other courts have found remand appropriate “where the record is devoid
of evidence of an advanced work history and sophisticated activities [of] daily living such
15

that a reviewing court cannot ‘easily discern the ALJ’s path or reasoning.’” Moore v.
Berryhill, No. 3:16-cv-408-GMB, 2017 WL 4017882, at *7 (M.D. Ala. Sept. 12, 2017)
(quoting Tubbs v. Berryhill, No. 15-00597-B, 2017 WL 1135234, at *6 (S.D. Ala. Mar. 27,
2017)). “An ability to do simple daily activities and simple jobs is not enough.” Southard,
2015 WL 1186153, at *5 (quoting Monroe, 726 F. Supp. 2d at 1355). As the court in
Southard explained, the ability to perform “unskilled and semiskilled labor with no
supervisory responsibilities is not inconsistent with evidence of intellectual disability.
Simple daily activities such as dressing one’s self, making the bed, dusting and vacuuming,
mowing the yard, fishing, and visiting relatives are similarly not indicative of high adaptive
functioning.” Id. at *6; see also Lewis, 2015 WL 5680372, at *8-9 (finding claimant’s
ability to live alone, use public transportation, prepare simple meals, watch television, go
to church, perform light housework, and past ability to drive a car were not inconsistent
with her intellectual disability); Hartman v. Colvin, No. CA 13-00005-C, 2014 WL
3058550, at *6-8 (S.D. Ala. July 7, 2014) (remanding despite the claimant’s 3.18 high
school GPA where she had the ability to cook, clean, manage her own finances, and drive,
she was in special education classes, received a certificate of attendance and not a high
school diploma, lived with her mother, and did not have a skilled or semi-skilled
employment history).
Turning to the facts at hand, the court will now consider the ALJ’s determination
that Plaintiff’s work history and daily activities showed sufficient adaptive functioning to
rebut the presumption of intellectual disability attributed to him based on his IQ scores.
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The court is mindful that it is not the court’s role to reweigh the evidence or substitute its
judgment for that of the ALJ. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997).
However, the court must find substantial evidence in the record to support the ALJ’s
conclusion that Plaintiff did not demonstrate the requisite deficits in adaptive functioning.
After giving due consideration to the ALJ’s decision and the record as a whole, the court
concludes that the ALJ’s decision is not supported by substantial evidence.
First, Plaintiff’s work history does not indicate that he worked at an advanced level
incompatible with intellectual disability. See Moore, 2017 WL 4017882, at *7. An ALJ
is permitted to consider a claimant’s work history when assessing his level of adaptive
functioning. See Rodriguez, 633 F. App’x at 773-74. In the decision, however, the ALJ
did not provide adequate explanation in support of the finding that Plaintiff’s work history
was incompatible with a finding of intellectual disability. The ALJ noted only that Plaintiff
had “at least five years of substantial gainful activity and ha[d] earned more than $20,000
during multiple years.” Tr. 26. The court finds this explanation insufficient in light of
Plaintiff’s work history.
Although Plaintiff sometimes worked at the substantial gainful activity level, he
more often did not, and he often had minimal earnings or none at all. Tr. 236-237. See
Durham v. Apfel, 34 F. Supp. 2d 1373, 1380 (N.D. Ga. 1998). Since 2002, Plaintiff only
twice earned more than $20,000 in a year. Tr. 236-237. Moreover, none of Plaintiff’s prior
jobs required him to supervise others or to employ technical skills. See Lewis, 2015 WL
5680372, at *8; see also Southard, 2015 WL 1186153, at *6 (“[M]ild intellectual disability
17

is not inconsistent with non-supervisory, unskilled and semiskilled labor).

Plaintiff

testified that he had worked as a mechanic’s helper; as a janitor, as a warehouse worker
stacking merchandise and loading trucks; and as a laborer picking up around construction
jobsites. Tr. 23, 44-54. The vocational expert indicated that each of these jobs was
unskilled except the mechanic’s helper job, which was semi-skilled. Tr. 82-83. Plaintiff
testified that he was able to function as a mechanic’s helper because he was verbally told
what to do. Tr. 23. He testified that he had difficulty learning how to do work in a work
setting and that he had never been promoted to a job in which he was in charge. Tr. 58,
60-61. He also testified that he had never obtained a job by himself without someone else’s
help. Tr. 22, 64. Although Plaintiff has been able to work in the past, the jobs that he has
held do not “call into question the I.Q. scores or claim of deficits in adaptive functioning.”
See Lewis, 2015 WL 5680372, at *8; see also Durham, 34 F. Supp. 2d at 1380 (finding “no
evidence that [jobs as a heavy laborer] are beyond the reach of a mildly retarded
individual”).
Second, particularly in light of Plaintiff’s limited educational and work history, the
daily activities that the ALJ cited are not sophisticated activities inconsistent with
Plaintiff’s IQ scores. There is no question that an ALJ may permissibly consider a
claimant’s daily activities when determining whether the claimant manifested deficits in
adaptive functioning. See Rodriguez, 633 F. App’x at 773-74. However, the daily
activities that the ALJ cited in this case fall much closer to the “simple” daily activities that
are “not indicative of high adaptive functioning.” See Southard, 2015 WL 1186153, at *6.
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Activities such as preparing simple meals, cleaning, yard work, watching television,
playing with one’s son, taking care of pets, walking, swimming, and other forms of exercise
and outdoor activities are not outside of an intellectually disabled person’s capabilities.
To be sure, some of these activities have been cited by other courts when finding
that a claimant has not demonstrated deficits in adaptive functioning. However, the
question of a claimant’s level of adaptive functioning is highly factual. In this case, the
ALJ did not properly explain how the daily activities, which require a certain level of
physical functioning, speak to Plaintiff’s intellectual capabilities. When combined with
Plaintiff’s educational and work history, the court finds that these limited daily activities
are insufficient to rebut the presumption of disability reflected by Plaintiff’s IQ scores.
Plaintiff testified that he had a twelfth grade education, but stated that his teachers
“skipped” him through grades. Tr. 23, 42-43. School records indicate that he was in special
education classes and functioning at the upper first grade level at age eighteen, and that he
obtained only a certificate of attendance. Tr. 57, 396, 411-412. Plaintiff’s school records
reflect diagnoses of “mental retardation.” Tr. 401, 409, 413, 418, 427. Plaintiff testified
that he cannot read or write. Tr. 23, 43. He explained that he is able to write his name,
social security number, and birthdate, but cannot read a book, a newspaper article, or a
clock. Tr. 22, 44, 63. He required assistance filling out the paperwork for his disability
application. Tr. 22, 63. He cannot perform arithmetic, count money, pay bills, handle a

19

savings account, or use a checkbook or money order. Tr. 23, 261. Although Plaintiff has
a driver’s license, the test had to be administered orally because of his illiteracy.7 Tr. 62.
The ALJ noted many of these facts in the decision. Tr. 22-23. Although the ALJ
made a general finding that she did not find Plaintiff’s subjective complaints fully credible,
she did not specifically address whether she found these aspects of Plaintiff’s mental and
adaptive functioning credible. To the extent that these statements by Plaintiff were
uncontroverted in the record, the court is unable to “easily discern the ALJ’s path or
reasoning” in finding that Plaintiff did not have deficits in adaptive functioning. Moore,
2017 WL 4017882, at *7. This court has previously observed that “special education
classes indicate deficits in adaptive functioning.” Butts, 2014 WL 1245874, at *4 (citing
Vaughn v. Astrue, 494 F. Supp. 2d 1269, 1274 (N.D. Ala. 2007)). Likewise, the inability
to read or write has been found to be indicative of deficits in adaptive functioning. See
Cammon v. Astrue, No. 3:08-cv-0131-JFK, 2009 WL 3245458, at *12 (N.D. Ga. Oct. 5,
2009) (remanding case for ALJ to reevaluate whether claimant had deficits in adaptive
functioning in light of her history of special education classes and illiteracy); see also
Vaughn, 494 F. Supp. 2d at 1274 (finding that claimant established deficits in adaptive
functioning where she had a history of special education classes, read at a fourth grade
level, and performed arithmetic at a second grade level). It is insufficient for the ALJ to

7

Plaintiff testified that he had not driven for “two or three years” prior to the hearing due to a grand mal
seizure. Tr. 41.

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simply record the existence of these limitations in the decision without explaining why the
limitations failed to establish adaptive deficits under Listing 12.05C.
The court’s final difficulty discerning substantial evidence to support the ALJ’s
finding that Plaintiff lacked adaptive deficits is because the ALJ, in fact, credited the
opinion of a doctor who found that Plaintiff did have adaptive deficits. On December 22,
2014, Dr. Thomas LeCroy provided a Psychiatric Review Technique in which he opined
that Plaintiff had moderate restrictions of the activities of daily living, moderate difficulties
in maintaining social functioning, and moderate difficulties maintaining concentration,
persistence or pace. Tr. 117-118. The ALJ gave this opinion “great weight,” finding that
the doctor’s opinions were “consistent with [Plaintiff’s] treatment notes.” Tr. 21.
Dr. LeCroy also provided an RFC assessment of Plaintiff’s mental limitations. Tr.
119-123. Dr. LeCroy opined that Plaintiff had a number of moderate limitations including
his ability to understand, remember, and carry out detailed instructions; maintain attention
and concentration for extended periods; perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; sustain an ordinary
routine without special supervision; make simple work-related decisions; complete a
normal workday and workweek without interruptions from psychologically based
symptoms; ask simple questions or request assistance; accept instructions and respond
appropriately to criticism from supervisors; and get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. Id.

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Notably, Dr. LeCroy opined that Plaintiff had “adaptation limitations,” including
moderate limitations of his ability to respond appropriately to changes in the work setting;
travel in unfamiliar places or use public transportation; and set realistic goals or make plans
independently of others. Tr. 122-123. Dr. LeCroy explained that Plaintiff “would learn
and remember simple work routines” and “could understand and remember simple
instructions but not detailed ones.” Tr. 121. He opined that Plaintiff’s “[c]ontact with the
public should be casual. Feedback should be supportive. Criticism should be tactful and
non-confrontational. Contact with coworkers should be casual.” Tr. 122. Dr. LeCroy also
opined that Plaintiff
Could carry out simple instructions and sustain attention to simple familiar
tasks for extended periods. [Plaintiff] would benefit from a flexible schedule
and would be expected to miss 1-2 days of work per month due to depression.
[Plaintiff] would benefit from casual supervision. [Plaintiff] would function
best with her [sic] own work area without proximity to others because of
anxiety around non family. [Plaintiff] would tolerate ordinary work
pressures and function best with a familiar work routine but should avoid
excessive workloads, quick decision-making, rapid changes and multiple
demands. [Plaintiff] would benefit from regular rest breaks and a slow pace
but will still be able to maintain a pace consistent with the mental demands
of competitive level work.
Id. Regarding Plaintiff’s adaptive functioning, Dr. LeCroy opined that Plaintiff “could
adapt to infrequent, well-explained changes with rehearsal” and that he “would need help
with long term planning and goal setting but not short term planning and goal setting.” Tr.
123.
Curiously, when considering Dr. LeCroy’s opinion in the context of Plaintiff’s RFC,
the ALJ gave the opinion only “partial weight,” finding that it was “somewhat vague” and
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that additional records had been received since Dr. LeCroy rendered his opinion. Tr. 29.
Nevertheless, it appears that the ALJ included some of Dr. LeCroy’s opinions as to
Plaintiff’s adaptive functioning in the RFC assessment because the ALJ limited Plaintiff to
“simple, repetitive, and routine tasks;” “occasional interaction with supervisors, coworkers
and the public;” and “occasional changes in a routine work setting.” Tr. 21.
The court is not able to follow the ALJ’s reasoning about Dr. LeCroy’s opinions.
The ALJ did not properly explain why she afforded great weight to Dr. LeCroy’s PRT
assessment while giving only partial weight to his RFC assessment rendered the same day.
The ALJ was entitled to assign Dr. LeCroy’s opinion as little or as much weight as she
thought it deserved. However, the weight given must be adequately explained and any
inconsistencies should be resolved. Most importantly, the ALJ did not explain how an
RFC assessment reflecting moderate limitations in adaptive functioning is consistent with
her conclusion that Plaintiff had not demonstrated deficits in adaptive functioning.
For these reasons, the court finds that the ALJ’s decision with respect to Listing
12.05C is not supported by substantial evidence. The ALJ failed to apply the proper criteria
in evaluating whether Plaintiff met the requirements of Listing 12.05C, and failed to
explain her reasoning with respect to Plaintiff’s educational and work history, daily
activities, and Dr. LeCroy’s opinion. These errors in the ALJ’s decision require the court
to remand the decision to the Commissioner for the ALJ to specifically consider Listing
12.05C under the applicable standard and to clarify the reasons for finding that the evidence

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of record rebuts the presumption of deficits in adaptive functioning to which Plaintiff is
entitled based on his IQ scores.
The court disagrees with the Commissioner’s contention that the ALJ’s error is
harmless. Doc. 13 at 8 n.5. The Commissioner’s argument presupposes that the ALJ’s
decision on remand will be the same. Given the court’s discussion herein of the appropriate
legal standard, as well as the relevant evidence that the ALJ did not appropriately consider,
the court cannot be so certain.
The Commissioner notes that Plaintiff did not allege intellectual deficits as a basis
for disability and that Plaintiff’s attorney did not argue the applicability of Listing 12.05C
to the ALJ. Doc. 13 at 5 n.3. The Commissioner argues that the ALJ was not required to
address Listing 12.05. Id. (citing Robinson v. Astrue, 365 F. App’x 993, 995 (11th Cir.
2010)). Although that may be the case, the ALJ found that the evidence of record warranted
consideration of Listing 12.05, so to the extent that the ALJ relied on the Listing as a basis
to deny benefits, such a finding is reviewable by this court. Upon review, the court
concludes that the ALJ’s decision should be reversed and remanded to the Commissioner
for further proceedings.
VI.

CONCLUSION
For all of the reasons given above, the undersigned Magistrate Judge concludes that

the decision of the Commissioner is REVERSED and this matter is REMANDED back to

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the Commissioner of Social Security for further proceedings consistent with this opinion.
A separate judgment will issue.
Done this 30th day of October, 2018.

/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE

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