Lackey v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/28/2014. (KAM, )
2014 Mar-28 AM 09:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TERRI RENAE LACKEY,
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
On February 5, 2008, the claimant, Terri Renea Lackey, applied for supplemental security
income under Title XVI of the Social Security Act. (R. 79-81). The claimant alleged disability
commencing on January 15, 2008 because of mental retardation1, bi polar disorder, and
depressive disorder. (R. 111, 227). The Commissioner denied the claim both initially and on
reconsideration. The claimant filed a timely request for a hearing before an Administrative Law
Judge, and the ALJ held a video hearing on February 11, 2010. (R. 29). In a decision dated
March 25, 2010, the ALJ found that the claimant was not disabled as defined by the Social
Security Act, and thus, was ineligible for supplemental security income. (R. 23). On August 20,
On August 1, 2013, while this appeal was pending, the Social Security Administration amended Listing
12.05 by replacing the words “mental retardation” with those of “intellectual disability.” See 78 Fed. Reg. 46,499 &
46,501 (to be codified at 20 C.F.R. pt. 404 subpt. P app. 1). The Administration stated that the change “does not
affect a substantive change.” Id. at 46,500. To avoid confusion, this opinion uses the same term that the parties and
the ALJ used: mental retardation.
2010, the Appeals Council denied the claimant’s request for review; consequently, the ALJ’s
decision became the final decision of the Commissioner of the Social Security Administration.
The claimant, having exhausted her administrative remedies, filed an action for judicial
review in this court pursuant to § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3).
On January 24, 2011, this court, on motion of the Commissioner, remanded claimant’s case back
to the Commissioner pursuant to sentence six of 42 U.S.C. § 405(g) to enable the ALJ to conduct
a supplemental hearing because “critical portions of the vocational expert’s testimony being
inaudible” caused the Commissioner to be unable to prepare a certified record. (R. 237-241).
The ALJ held a supplemental video hearing on May 12, 2011. (R. 223-236). On May 26, 2011,
the ALJ again issued an unfavorable decision, this time concluding that claimant is capable of
performing her past relevant work as a cashier. (R. 210-218). This decision became the final
decision of the Commissioner when, on August 16, 2012, the Appeals Council again declined to
grant review. (R. 202-203).
Because the claimant had again exhausted all administrative remedies on remand, the
Commissioner filed an Answer (doc. 8) in this court on January 29, 2013, resulting in the
reopening of the case. For the reasons stated below, this court AFFIRMS the decision of the
II. ISSUE PRESENTED
Whether the ALJ erred in finding that claimant did not meet the listing of 12.05(C).
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g);
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo.
The court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner’s] factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but must view the record in
its entirety and take account of the evidence that detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person cannot “engage in 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. § 432
(d)(1)(A) (2004). To make this determination, the Commissioner employs a five-step, sequential
(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;
(4) Is the person unable to perform his or her former occupation;
(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 finding a 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); see 20 C.F.R. §§ 404.1520, 416.920.
To satisfy a listing at step three, claimant’s impairment must meet “all of the criteria of
that listing, including any relevant criteria in the introduction, and [must meet] the duration
requirement.” 20 C.F.R. § § 404.1525(c)(3), 416.925(c)(3). Listing 12.05(C) contains an
introduction and also four sets of criteria, listed as criteria A through D and each separated by
“or.” Thus, if the claimant’s impairment meets the requirements in the introductory paragraph
and any one of the four sets of criteria, then she meets the Listing. Listing 12.05’s introductory
paragraph states the following diagnostic description for mental retardation: “mental retardation
refers to significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the development period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22.” Id. pt 404, subpt. P, app. 1 § 12.05 (2012).
This appeal focuses only on 12.05(C), which requires, in addition to satisfying the introductory
paragraph, satisfying the following criteria in paragraph 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.” Id. at § 1205(C).
The claimant alleges she is unable to work because of mild mental retardation, bi-polar
disorder/anxiety and mood disorder, and depressive disorder. (R. 149). The claimant, who was
34 years of age at the time of the first hearing, and 35 years old at the second hearing, completed
the twelfth grade in special education classes, and received a certificate of completion rather than
a diploma. (R. 34,168, 226, 230, 312). According to clinic records, the claimant stated that the
reason she was placed in special education classes was that she had a learning disability. (R.
200). At the time of the first hearing, she lived with her second husband of seven years and her
son. The claimant’s mother-in-law had lived with the family at some point and helped her take
care of the claimant’s young son, but the mother-in-law died before the first hearing. ( R. 32 ).
The claimant’s past work experience includes part-time employment as a retail cashier
(unskilled), deli sales clerk (light physical demand, semi-skilled) and unloader/stocker (heavy
physical demand, semi-skilled). (R. 232-33).
Although the claimant acknowledges once using cocaine in 2009, during the pendency
of this case at the administrative level, she claims no current drug or alcohol use. At some point,
the DHR became the guardian of her young son because of drug charges issued against the
claimant. According to the claimant, the drug charge occurred because she was living with or
had furniture stored with some friends involved with methamphetamines and just happened to be
on the property when the law enforcement searched the property and found the meth
paraphernalia; claimant testified that she was charged with meth because of her association with
those friends even though no meth was found in her system, and she served two years on
probation, which ended in 2009. (R. 191, 231).
Although the claimant also alleged a history of physical limitations that contributed to her
disability, the ALJ found that none of the alleged physical limitations was severe at step two of
his analysis and did not take the physical limitations into account when determining whether the
claimant was disabled. Because the claimant did not object to this finding, this court will not
address it as a potential error.
In February 2007, the claimant received the diagnosis of depression and anxiety when she
sought treatment at the Maude Whatley Clinic, and she began taking Lexapro to treat those
Indian Rivers Mental Health Center Records
The claimant also received treatment at Indian Rivers Mental Health Center, beginning in
March of 2008 and continuing off and on throughout this appeal process. Her records at Indian
Rivers reflect that on April 1, 2008 she came to the clinic complaining of depression and anxiety
with symptoms of “sadness, agitation and hostility, loss of energy and sometimes feelings of
hopelessness” with no suicidal or homicidal thoughts or plans, although she acknowledged
having arguments with her step-daughter. She reported a decrease in energy level and
concentration. Because the claimant reported use of Lexapro in the past with some success but
that “it cost too much and she thought she is having some suicide effects from it,” the nurse
prescribed instead a generic brand for Celexa, an antidepressant drug prescribed for depression,
anxiety, and various panic disorders. The “Social History” of the clinic note reflects that the
claimant reported that she had left work in January of 2008 “because she was not happy with pay
or with working conditions. She states that she has had about seven jobs since high school and
the longest duration of one was two years.” The clinic records reflect an Axis I diagnosis of
mood disorder nonspecified and an Axis II diagnosis of mild mental retardation “per client.” (R.
Clinic records reflect that a week after the April 1, 2008 visit, the claimant called the
clinic, complaining that the Celexa caused nausea, so the clinic decreased her dose to 20 mg. (R.
On May 1, 2008, the nurse practitioner at Indian Rivers saw the claimant for a follow-up
visit. Because she was still having difficulties with nausea on Celexa, the nurse discontinued
Celexa and placed her on Lexapro, which she had taken in the past with some success. The nurse
reported the claimant’s explanation of her problem as a “nerve problem,” elaborating “one
minute I will be in a good mood and the next minute I want to tear someone’s head off.”
Although she stated that she had thoughts about killing her step-daughter three months before
when the step-daughter “got in her face,” she denied any actual plans to hurt the step daughter,
and denied other homicidal or suicidal ideation. The only symptom of depression she reported
was lack of motivation, which she claimed occurred twice a month, and she explained that
“‘going outside and getting away from everybody’ helps when depressed and that she cheers up
within ‘45 minutes to an hour.’” At this clinic visit, the claimant received a prescription for daily
dose of 10 mg of Lexapro. (R. 191).
On July 22, 2008, the nurse practitioner saw the claimant for follow-up medication
management. The claimant appeared alert, oriented, pleasant, cooperative, calm, and logical. She
opined that Lexapro was not working well for her and suggested Xanax. The nurse practitioner
discontinued Lexapro and prescribed Zoloft, 50 mg., once per day, for her depression, and
Trazodone, 50 mg, once per day, for sleep. (R.196-97).
Clinic records reflect that the claimant did not meet with the nurse practitioner from July
of 2008 until December of 2008, although the records reflect prescription refills of Zoloft and
Trazodone in the interim. (R. 193-99).
On December 2, 2008, the nurse practitioner saw the claimant at the clinic for medication
management. The claimant advised him that her sleep had improved to a normal level, and that
the Zoloft has been helping but that she continues to feel some anxiety and hostility and sadness.
As a result of this visit, the nurse increased her prescription of Zoloft to 100 mg, and
recommended that she return in three months or as needed. (R. 193).
On April 15, 2009, the claimant returned to clinic after a four month absence. The clinic
provided prescriptions for Zoloft (100 mg) Trazodone (50 mg) and Neurontin (100 mg), a drug
used to treat seizures and nerve pain, insomnia, and bipolar disorder. A “Treatment Plan
Review/Revisions” page with this date included handwritten notes that were partially illegible
but included the following: “Last seen in clinic 12-2-08 & diagnosis reported per CRNP 12-1108 & some symptoms noted, medication change made. Changed diagnosis per CRNP. [Illegible]
Has 4-21-09 clinic appt. Change duration to ongoing & continue DOC. Will be scheduled w/or
new POC [or DOC].” The notes were unclear about the specific reason for adding the neurontin
medication. (R. 192-93).
On June 23, 2009, the claimant failed to show up at the clinic for her scheduled
appointment. (R. 342). Later records reflect that she smoked cocaine during this month. (R.
On July 15, 2009, a doctor at the clinic saw the claimant and reviewed her records to
update her treatment plan. She reported that she was having “minor anxiety,” daily mood swings
and minor memory and concentration problems. However, she reported no depression or
hallucinations, “no paranoia, no derealization or depersonalization, and no suicidal/homicidal
ideation.” Although she said she was sleeping less, she acknowledged that she had not refilled
her prescription for Trazodone (R. 332).
Also on July 15, 2009, nurse’s notes reflect that the claimant reported no problems except
agitation and decreased sleep. A mental status exam reflected no problems and noted: “Client
reported that she was told by social security that she had MR status. Client reported that she
sometimes has problems remembering things.” The treatment plan was to decrease Zoloft to 50
mg, to start Remeron, an antidepressant, and to continue using Trazodone as needed. The notes
reflect that the claimant discontinued Neurtontin approximately one month previously because of
the side effects. (R. 336 & 341).
On July 22, 2009, a nurse made a note in the file that the claimant continued having mood
swings but was having difficulty affording the Remeron and requested a cheaper medication, so
the clinic prescribed Celexa and discontinued Remeron and Zoloft. (R. 340).
On November 4, 2009, a psychiatrist at the clinic saw the claimant and noted that she
“feels better” although she feels depressed some days. The doctor further reported her denial of
other complaints, psychosis, or feeling hopeless or worthless. She reported taking her
medication as prescribed with no side effects. Accordingly, the doctor did not change her
diagnosis or her medicine; the claimant continued taking Celexa and Trazodone. (R. 343).
On September 8, 2009, the claimant failed to show up at the clinic for her scheduled
appointment. (R. 339).
On November 24, 2009, a mental status exam report reflected no current drug problems.
This report was prepared by a clinic nurse with a masters in social work and reviewed by a nurse
practitioner on December 3, 2009. In the Diagnosis and Clinical Summary, begun on that date
and reviewed on December 3, 2009, the Diagnoses were listed as follows: Axis I - Cocaine abuse
and Depression Disorder; Axis II - no diagnosis; Axis III - no significant medical history; Axis
IV - Other psychosocial/environmental problems. The Clinical/Integrated Summary reflects that
the claimant “presented to Indian Rivers for a substance abuse assessment and substance abuse
treatment referred by DHR” with the last use of cocaine in June of 2009. According to the
summary, she used cocaine only one time and had not smoked it before or since, and her son was
currently living with his grandparents. (R. 329-30).
On February 11, 2010, the progress notes stated “Discontinue SA services due to being
inappropriate for IOP. Client has a psychiatric appointment in April 2010. Continue remaining
11/24/09 treatment plan as it remains appropriate.” (R. 365).
On April 5, 2010 and June 4, 2010, the claimant did not show up for her clinic
appointments. (R. 363-64). On July 15, 2010, the notes reflect that the nurse practitioner
reviewed the claimant’s treatment plan. She stated: “Case, however, would have been closed due
to the length of time since last contact, but client has an MD appointment.” (R. 362). On
September 9, 2010, the claimant failed to make her doctor appointment. (R. 361). On October
27, 2010, the plan review notes indicated that because the claimant missed her doctor
appointment, has not visited the clinic in several months and has no follow-up appointments
scheduled, the case would be closed. (R. 360).
On February 4, 2011, the Indian Rivers staff prepared a Treatment Plan Report noting the
claimant’s symptoms of mood instability including irritability and mood swings. In the Clinical
Summary Inquiry from the same date (with a report date of April 7, 2011), the claimant
characterized her symptoms as “mood swings, irritability, and hyperness,” and the person
preparing the summary stated that the claimant “appeared to be manic.” Claimant reported that
she had run out of Celexa and was only taking Trazodone. (R. 347-48).
On February 16, 2011, the claimant arrived at the clinic, acknowledging that she had not
been to the clinic in over a year and had not been on medication for more than six months. She
complained of increased mood swings and difficulty sleeping (R. 358). However, on another
record from the same date, the doctor records her as stating that she “sleeps good.” The notes
also stated that she characterized her “Depression and anxiety fair in control, it was worse a year
ago. Anger 5/10.” The doctor prescribed Prozac and Trazodone (R. 356).
On March 16, 2011, the claimant denied any problems and claimed to be medically
compliant. When she spoke with the doctor on the same day, she reported that “Depression,
anxiety, anger all getting better, states she is learning how to stay in control. Sleeping good
[without] trazadone [sic]. No [side effects] from meds. She denies feeling wo[r]thless or
hopeless. No SI/KI/AVH and delusions. Denies drugs, alcohol or pregnancy.” Accordingly, the
drug regimen did not change. (R. 355).
Dr. Maio’s Evaluation
The Disability Determination Service referred the claimant to Dr. Joseph E. Maio, Ph.D. ,
a clinical psychologist, for a psychological evaluation, which occurred on April 23, 2008. In that
report, Dr. Maio recorded the claimant’s characterization of daily activities, including “cooking,
completing household chores, grocery shopping, managing her medications, and taking care of
her son,” including “playing outside with him.” She “denied any deterioration in her personal
care or restriction of her daily activities” and, although she acknowledged “becom[ing] easily
upset at others,” she also acknowledged generally getting “along well with people.” She denied
having difficulty understanding and remembering instructions and completing tasks, although she
did admit to having difficulty understanding new tasks. (R. 168). Further, she denied feeling
depressed or anxious, although she reported feeling moody and angry.
Dr. Maio’s office administered the Wechsler Adult Intelligence Scale (third edition) test
to the claimant, and her results are as follows: verbal IQ - 70 (2 %); Performance IQ - 77 (6%);
Full Scale IQ - 71 (3%); Verbal Comprehension Index - 76 (5%); and Perceptual Organization
Index - 78 (7%). Dr. Maio noted that the claimant put forth adequate effort and he considered
the results reliable. Based on those test results, he concluded that the claimant’s intellectual
abilities likely fall in the mildly deficient to range of intellectual functioning, and also
determined that “her apparent level of adaptive functioning would not suggest a diagnosis of
Mild Mental Retardation.” He listed her current GAF as 65, which reflects some mild symptoms
or some difficulty in social or occupational functioning but generally functioning pretty well. As
to her ability to work given these results, Dr. Maio opined that she “should be capable of
performing unskilled labor when she is provided adequate support, supervision, and training.”
His notes also reflect his questioning the claimant’s reliability as an informant given that she
incorrectly reported her medication prescription and her history of involvement with a drug
charge. (R. 170-71).
Dr. Estock’s Consultative PRT
On April 29, 2008, Dr. Robert Estock, a Birmingham psychiatrist, evaluated the claimant
and performed a Psychiatric Review Technique as a non-examining consultant. The consultant’s
notes indicate that he reviewed Dr. Maio’s records and the tests Dr. Maio performed, and Dr.
Estock gave controlling weight to Dr. Maio’s findings in preparing the reports. His notes also
refer to Indian Rivers records. Dr. Estock did not have access to the claimant’s school records,
although he requested them twice, but he did acknowledge the claimant’s statement that she
attended special education classes throughout her high school years.
Dr. Estock evaluated her for 12.04 (Affective Disorders), 1206 (Anxiety-Related
Disorders), 12.09 Substance Addiction Disorders, and 12.10 (Autism and Other Pervasive
Developmental Disorders). He did not evaluate the claimant for the area that is the subject of
this appeal - 12:05 (Mental Retardation), although his notes reflect his awareness that the
claimant was alleging she is mentally retarded.
Under 12.04, Dr. Estock checked the box
stating that a “medically determinable impairment is present that does not precisely satisfy the
diagnostic criteria above, and he identified the disorder as “Depression by hx dx’d in Feb. 2007
... currently denied” (apparently referring to her denial of depression when she met with Dr.
Maio, as stated in the section entitled “Consultant’s Notes”). Under 12.06, Dr. Estock checked
the same box, and he identified the disorder as “Anxiety by hx dx’d in 2/07 . . .currently denied”
(apparently referring again to her denial of anxiety when she met with Dr. Maio, as stated in the
section entitled “Consultant’s Notes”). Under 12.09, Dr. Estock checked the same box,
identifying the disorder as “R/O Amphetamine abuse” and noted “DAA denied by clmt.” Under
12.10, Dr. Estock checked the same box and identified the disorder as “ intellectual functioning
... FSIQ-71" referring to her full scale IQ score. (R. 172-181, 184-85).
Under the section marked “‘B’ criteria of the Listings,” Dr. Estock made the following
determinations: Restriction of Activities of Daily Living - Mild; Difficulties in Maintaining
Social Functioning - Mild; Difficulties in Maintaining Concentration, Persistence, or Pace Moderate; Episodes of Decompensation, Each of Extended Duration - None. (R. 182).
Under the section marked “‘C’ Criteria of the Listings,” Dr. Estock determined that
“Evidence does not establish the presence of the ‘C’ criteria.” (R. 183).
Dr. Estock’s Consultative Mental RFC Assessment
In his consultative Mental RFC Assessment, Dr. Estock made the following conclusions:
out of the list of twenty discrete abilities, he evaluated the claimant as “not significantly limited”
in fifteen, “moderately limited” in five, and markedly limited in none. The abilities that he
considered to be “moderately limited” were as follows: Category of Understanding and Memory
- ability to understand and remember detailed instructions; Category of Sustained Concentration
and Persistence - ability to carry out detailed instruction; Category of Social Interaction - ability
to accept instructions and respond appropriately to criticism from supervisors; Category of
Adaptation - ability to respond appropriately to changes in the work setting and ability to set
realistic goals or make plans independently of others. In the notes on his RFC Assessment, Dr.
Estock explained that given the claimant’s past history of working two years as a cashier at a gas
station, “she would be able to: 1. Understand, [remember] and complete simple instruction for
simple tasks. 2. Complete an 8 hour work day involving simple [tasks] provided all customary
breaks. 3. Work is a supportive environment where supervision is not confrontation[al] and job
training is adequate. 4. Complete and adapt to all work demands involving simple tasks.” (R.
The ALJ Hearings
First hearing: February 11, 2010
During her testimony in the first hearing on February 11, 2010, the claimant testified that
her problem with depression resulted in her crying a lot; being “upset all the time” about “[a]ny
little thing”; not wanting to do anything; and having problems going outside of the house (her
mother-in-law would take the claimant’s young son outside to play because the claimant did not
want to do so). Regarding anxiety, the claimant testified “one minute you’re good to go and the
next minute somebody says, hey, what you want for supper and you go off.” (R. 32).
When asked about her medication, the claimant testified that she was taking Celexa and
Trazodone, once a day each. As to the efficacy of the Celexa, she stated: “So far so good. We
may have to up that dosage . . .because by . . about lunchtime or so I might need another dose of
it.” She testified that she took half a Trazodone every so often when she needed it to sleep. (R.
The claimant characterized herself as being slow at reading but, when given time, she can
read most documents without assistance. (R. 35).
When asked about her daily activities, she testified that she handled household chores,
grocery shopping, and cooking. She could drive but only in the daytime because she could not
see to drive at night. When her son arrived home from school, she cooked supper, bathed him,
watched t.v. with him, and prepared him for bed. (R. 35-37).
Second Hearing: May 12, 2011
At the subsequent hearing on May 12, 2011, the claimant testified that she has mood
swings, and problems with regulating the medication that causes concentration problems. She
stated that her doctors had recently increased her Prozac to 20 milligrams per day to decrease her
frustration and that she now took Trazodone daily, one -fourth a pill in the morning, one-fourth
in the afternoon, and one-half at night. She testified that her moods vary, but when she is having
a bad day, even a simple question would cause her to “go off.” (R. 227-28).
Regarding her depression, she explained that “[I] [j]ust don’t want to get up and do
nothing, don’t want to talk to nobody, don’t want to go nowhere, just want to lay there.” She
further stated that she does not go out socially. (R. 231-32).
Although the ALJ asked the claimant about her drug charge, she recounted the meth
charge and her two-year probation for that charge, but did not reveal her cocaine use in 2009
reflected in her Indian Rivers medical records.
A vocational expert testified at the second hearing. The ALJ asked him to determine
whether jobs exist based on a hypothetical individual of claimant’s age, educational background,
and past work history who “has no exertional limitations, has some non-exertional limitations
(inaudible) functioning (inaudible), and she can understand, remember and carry out simple
instruction, and she can complete an eight-hour workday doing simple tasks, with customary
work breaks, she should work in a supported environment, where supervision is not
confrontational, and job training is adequate, and she can complete and adapt to all work
demands involving simple tasks.” The VE found that such an individual could perform her
previous position of basic cashier at an unskilled level and also could perform the position of
light housekeeper/cleaner (unskilled) and automatic carwash attendant (light work, unskilled).
The ALJ ‘s Decision After the Second Hearing
On May 26, 2011, the ALJ rendered the decision currently under review. In that decision,
at step one of the analysis, the ALJ found that the claimant has not engaged in substantial gainful
activity since February 5, 2008. At step two, the ALJ further found that the claimant suffers from
two severe impairments: intellectual functioning and depressive disorder. In so finding, the ALJ
determined that the claimant’s conditions of carpal tunnel syndrome and Bell’s palsy are
nonsevere for the purposes of the step two consideration because “these conditions appear to
have resolved by September of 2004.” (R. 212-13).
At step three, the ALJ found that the claimant does not have an impairment or
combination of impairments that meets or medically equals a listing under 12.04, 12.05, 12.06, or
12.10. (R. 213). The claimant argues in this appeal that the ALJ erred in finding that the
claimant did not meet listing 12.05; therefore, the court will focus on the decision’s analysis of
The ALJ noted the claimant’s valid IQ score of 70, but further noted the Eleventh Circuit
Court of Appeal’s holding in Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986), that the
Listing “does not require the Secretary to make a finding of mental retardation based on the
results of an IQ test alone.” Instead, the ALJ explained that “[i]n addition to a valid IQ score of
70 or less, with an accompanying additional severe physical or mental impairment [as required
by paragraph C], there must also be accompanying significant deficits in adaptive functioning.”
Therefore, the ALJ noted her obligation to “‘take into account the intelligence test’ as one
specific factor” and to examine the test result “within the context of reported daily activities and
The ALJ noted that Dr. Maio, a mental health specialist whose findings she gave
substantial weight, had looked at the claimant’s daily activities and behavior and had concluded
that her “apparent level of adaptive functioning was inconsistent with a diagnosis of mental
retardation, and diagnosed the claimant with intellectual functioning instead of mental
retardation.” She also noted that, based on the records presented to her, the claimant has never
received a diagnosis of mental retardation, but instead has been characterized consistently as
exhibiting intellectual functioning. (R. 214-15, 217).
Accordingly, the ALJ determined that the claimant did not meet Listing 12.05(C), but
instead characterized the claimant’s intelligence as falling within “the range of intellectual
functioning.” Although the claimant does not raise as errors the ALJ’s findings regarding the
other listings, the ALJ also addressed Listings 12.04, 12.06, and 12.10, and found that the
claimant’s impairmens did not fall within those Listings. (R. 213-15).
The ALJ also found that the claimant has the residual functional capacity “to perform a
full range of work at all exertional levels but with the following nonexertional limitations: 1) the
claimant can understand, remember, and carry out simple instructions; 2) the claimant can
complete an 8 hour work day involving simple tasks provided she is afforded all customary
breaks; 3) the claimant’s work environment should be supportive, with non-confrontational
supervision and adequate job training; and 4) the claimant can complete and adapt to all work
demands involving simple tasks.” (R. 215).
As support for this finding, the ALJ pointed to the findings of Dr. Estock and Dr. Maio,
whose findings she characterized as “uncontradicted by other objective medical evidence” and to
which she gave substantial weight. The ALJ concluded that the claimant has some degree of
limitation from her diagnosed mental conditions but the limitations would not prevent her from
performing all competitive work. The ALJ stated that she reached this conclusion after
completing “a thorough review of the evidence of record, including the claimant’s allegations
and testimony, forms completed at the request of Social Security, the objective medical findings,
medical opinions, school records, and other relevant evidence.” (R. 216-17).
At step four, given that specific RFC and the VE’s testimony, the ALJ determined that the
claimant was able to perform her past relevant work as a cashier, and that she was not disabled as
that term is defined by the Social Security Act. (R. 218).
The sole error that the claimant raises on appeal is whether the ALJ erred in finding that
the claimant did not meet Listing 12.05C. That Listing provides as follows:
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.
The introduction to Mental Disorders provided in 12.00A lists the nine diagnostic
categories, including 12.05 as one of the nine, and addresses 12.05 separately, explaining:
The structure of the listing for mental retardation (12.05) is different from that of the
other mental disorders listings. Listings 12.05 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 listing. *** For paragraph C, we will assess
the degree of functional limitation the additional impairment(s) imposes to determine
if it significantly limits your physical or mental ability to do basic work activities, i.e.,
is a “severe” impairment(s), as defined in § § 404.1520(c) and 416.920(c). If the
additional impairment(s) does not cause limitations that are “severe” as defined in §
404.1520(c) and 416.920(c), we will not find that the additional impairment(s)
imposes “an additional and significant work-related limitation of function,” even if
you are unable to do your past work because of the unique features of that work.
20 C.F.R. p. 404 subpt. P/app. 1, 12.00 (emphasis added).
The Social Security Administration’s Program Operations Manual System (POMS) states
that the phrase “adaptive functioning” in 12.05's introductory paragraph 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.” POMS d124515.056(D)(2).
The claimant argues that the claimant meets this Listing because she had mental deficits
that manifested before age 22, as reflected in the fact that she was in special education classes in
school; because she received a valid verbal IQ score of 70; and because she has other significant,
work-related limitation of function, including mood swings and depressive disorder.
The Commissioner argues that “a claimant must first show that she has mental retardation
and then present sufficient evidence to satisfy the (C) criteria.” (Comm.’s Br., doc. 11, at 5).
The Commissioner asserts that the claimant has not met all the diagnostic requirements of mental
retardation set out in the introductory paragraph. Obviously the two parties differ about what the
introductory paragraph of 12.05 requires.
The court looks to the Listing and to the case law applying it to determine which
argument prevails. The Eleventh Circuit Court of Appeals has explained that to meet the 12.05
Listing, the claimant must satisfy each diagnostic requirement of the introductory paragraph; a
claimant “must at least (1) have significantly subaverage general intellectual functions; (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). Then, in addition to the
diagnostic requirements set out in the introductory paragraph, the claimant must meet one of the
four sets of criteria found in 12.05 (A), (B), (C), or (D) to show that the mental retardation is
sufficiently severe. See 20 C.F.R. p. 404 subpt. P/app. 1, 12.00 (emphasis added); see also
Perkins v. Comm’r of Soc. Sec., No. 13-12024, 2014 WL 223905, *2 (11th Cir. Jan 22, 2014)
(per curiam) (quoting the Crayton decision’s listing of the diagnostic paragraph’s criteria in
12.05 and stating that “[a] claimant must meet these diagnostic criteria in addition to one of the
four sets of criteria found in 12.05 (A), (B), (C), or (D) . . . .”); Hinkel v. Comm’r of Soc. Sec.,
539 F. App’x 980, 985 n. 9 (11th Cir. 2013) (per curiam) (noting that 12.05(C) requires “the
claimant to satisfy both the criteria in the introduction and the specific criteria to meet a listing”).
Applying the Eleventh Circuit’s explanation to the instant case, where the claimant relies
on 12.05(C), the claimant must meet the three diagnostic requirements in the introductory
paragraph and also meet the requirements set forth in (C).
The ALJ in the instant case recognized that the claimant must meet those three diagnostic
requirements in the introductory paragraph, and found that the claimant had failed to show the
required significant deficits in adaptive functioning. Noting that the claimant had never received
a diagnosis of mental retardation, the ALJ gave great weight to the finding of Dr. Maio, a mental
health professional who examined the claimant, that the claimant’s “apparent level of adaptive
functioning would not suggest a diagnosis of Mild Mental Retardation,” but instead supported a
diagnosis of “ Intellectual Functioning.” (R. 214).
Supporting Dr. Maio’s finding regarding adaptive functioning is the claimant’s own
acknowledgment in records and testimony about a variety of activities that she routinely
performs: cooking, completing household chores, playing outside with her son, grocery shopping,
managing her medications, completing tasks as long as they are not new tasks, understanding and
remembering simple instructions, maintaining her own personal hygiene, and taking care of her
son. Further supporting her level of adaptive functioning is her work history at various jobs, one
that endured for at least two years, and her own explanation that she left her last job because of
dissatisfaction with the pay and working conditions, not because of a difficulty performing job
The claimant places great emphasis on her verbal I.Q. score of 70, the highest score that
still qualifies for mental retardation under paragraph C. The court notes that the verbal I.Q. score
was the only I.Q. score falling within the 60-70 range: her performance I.Q. (77), full scale I.Q.
(71), Verbal Comprehension Index (76) and Perceptual Organization Index (78) were all above
70. However, the ALJ correctly points out that the Eleventh Circuit has specifically rejected the
notion that the 12.05 Listing requires the ALJ to make a finding of mental retardation based on
the I.Q. results alone. See Popp, 779 F.2d at 1499. Rather, the ALJ must determine whether the
claimant meets the diagnostic requirements in the introductory paragraph and the paragraph C
requirements. Because the claimant cannot meet the requirement of requisite deficits in adaptive
functioning, she has not satisfied the introductory diagnostic paragraph requirements.
Further, the Eleventh Circuit has explained that the ALJ must examine the I.Q. test
results within the context of reported daily activities and behavior to ensure consistency. Id.
“[A] valid I.Q. score need not be conclusive of mental retardation where the I.Q. 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). Thus, a valid I.Q. score of 60-70 after
age 22 “create[s] a rebuttable presumption of a fairly constant IQ throughout [a claimant]’s life.”
Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001).
In the instant case, when the ALJ examined the I.Q. test results in the context of the
claimant’s reported daily activities and behavior, as the Eleventh Circuit instructed, she found the
daily activities and behavior to represent a higher level of functioning, and thus, to be
inconsistent with the test results. The opinions of the medical professionals supported the ALJ’s
findings. Thus, the claimant’s activities and behavior rebutted the presumption and showed the
claimant did not have “deficits in adaptive functioning.” (R. 214-15).
For all of these reasons, the court finds that substantial evidence supports the ALJ’s
finding that the claimant fails to meet the adaptive functioning requirement in the 12.05's
introductory paragraph, and thus, fails to meet Listing 12.05(C). The claimant raises no other
For the reasons stated, this court FINDS that substantial evidence supports the decision of
the Commissioner, and it is due to be AFFIRMED. The court will enter a separate order to that
DONE and ORDERED this 28th day of March, 2014.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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