Hartman v. Astrue
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying Plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 7/7/2014. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ANGELLEE A. HARTMAN,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
The Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her claim for supplemental security income (“SSI”). The parties have consented
to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for
all proceedings in this Court. (Doc. 18 (“In accordance with the provisions of 28 U.S.C.
636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States
Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a
final judgment, and conduct all post-judgment proceedings.”).) Upon consideration of
the administrative record (“R.”) (doc. 12), the Plaintiff’s brief (doc. 13), the
Commissioner’s brief (doc. 14), and the arguments presented at the August 21, 2013
hearing, it is determined that the Commissioner’s decision denying benefits should be
reversed and remanded for further proceedings not inconsistent with this decision.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See doc. 18 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for
this judicial circuit in the same manner as an appeal from any other judgment of this district
On or around October 23, 2009, the Plaintiff filed an application for SSI (R. 128131), alleging that she became disabled on February 11, 2009, when she sustained
injuries to her left knee, neck and back in a motor vehicle accident, (see R. 55, 161-68).
Her application was initially denied on April 6, 2010, (R. 77-79). A hearing was then
conducted before an Administrative Law Judge on June 8, 2011. (R. 49-67). On June 17,
2011, the ALJ issued a decision finding that the claimant was not disabled (R. 33-45),
and, on July 25, 2011, the Plaintiff sought review from the Appeals Council, (R. 27-29).
On November 14, 2012, the Appeals Council issued a decision declining to review the
ALJ’s decision. (R. 1-3.) Therefore, the ALJ’s determination was the Commissioner’s
final decision for purposes of judicial review. See 20 C.F.R. § 404.981. The Plaintiff filed
a Complaint in this Court on January 9, 2013. (Doc. 1.)
Standard of Review and Claims on Appeal
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner
must consider the following four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the
plaintiff’s age, education, and work history. Id. Once the plaintiff meets this burden, it
becomes the Commissioner’s burden to prove that the plaintiff is capable—given his or
her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Although at the fourth step “the [plaintiff] bears the burden of
demonstrating an inability to return to his [or her] past relevant work, the
[Commissioner of Social Security] has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
Plaintiff benefits is supported by substantial evidence. Substantial evidence is defined
as more than a scintilla, and 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). “In determining whether substantial evidence exists, [a court] must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts
are precluded, however, from “deciding the facts anew or re-weighing the evidence.”
Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “[e]ven if the evidence
preponderates against the Commissioner’s findings, [a court] must affirm if the decision
reached is supported by substantial evidence.” Id. (citing Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the Plaintiff asserts two claims:
The Commissioner erred in failing to find Ms. Hartman disabled based
upon meeting the requirements for presumptive disability at ¶12.05C of
the Listings[; and]
The Commissioner erred in basing her decision upon a hypothetical
question which failed to fairly and accurately describe Ms. Hartman’s
(Doc. 13 at 2.) Because the Court determines that the decision of the Commissioner
should be reversed and remanded for further proceedings based on the Plaintiff’s first
claim, regarding presumptive disability under ¶12.05C of the Listings, there is no need
for the Court to consider the Plaintiff’s second claim. See Robinson v. Massanari, 176 F.
Supp. 2d 1278, 1280 & n.2 (S.D. Ala. 2001); cf. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th
Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone warrants reversal,’ we
do not consider the appellant’s other claims.”).
To establish presumptive disability under section 12.05(C), a claimant must
present evidence of “[a] valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing additional and significant workrelated limitation of function.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C). In
addition, while the plaintiff must “also satisfy the ‘diagnostic description’ of mental
retardation in Listing 12.05[,]”2 3 Cooper v. Commissioner of Soc. Sec., 217 Fed. App’x 450,
452 (6th Cir. 2007) (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001)), the law in
this Circuit is clear that where, as here, a claimant has presented a valid IQ score of 60 to
70, she is entitled to the presumption that she manifested deficits in adaptive
functioning before the age of 22, see Hodges v. Barnhart, 276 F.3d 1265, 1266, 1268-1269
(11th Cir. 2001).
This presumption is rebuttable, but the Commissioner is charged with the task of
determining whether there is sufficient evidence (relating to plaintiff’s daily life) to
rebut the presumption. See Grant v. Astrue, 255 Fed. App’x 374, 375 (11th Cir. 2007) (per
“[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.” 20
C.F.R. Part 404, Subpart P, Appendix 1 § 12.05. “‘Adaptive functioning’ refers to a person’s
ability to perform activities of daily living and social functioning.” Fischer v. Barnhart, 129 Fed.
App’x 297, 301-02 (7th Cir. 2005) (citation omitted).
Listing 12.05 was amended on August 1, 2013, to replace the words “mental
retardation” with “intellectual disability.” See 78 Fed.Reg. 46,499, 46,501 (codified at 20 C.F.R.
pt. 404, subpt. P, app. 1). “The Social Security Administration stated that the change ‘does not
affect the actual medical definition of the disorder or available programs or services.’” Hickel v.
Comm’r of Soc. Sec., 539 Fed. App’x 980, 982 n.2 (11th Cir. 2013) (citing 78 Fed.Reg. 46,500). As in
Hickel, the undersigned uses the old term “mental retardation” throughout this opinion to avoid
confusion because it is the term used by the parties and the ALJ.
curiam). For example, in Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992), the Eleventh
Circuit recognized that a valid IQ score is not necessarily conclusive of mental
retardation where the score is inconsistent with other evidence of claimant’s daily
activities, see id. at 837. Specifically, in the context of 12.05(C), the Eleventh Circuit held:
To establish a disability under section 12.05(C), a claimant must present
evidence of a valid verbal, performance, or full-scale I.Q. score of between
60 and 70 inclusive, and of a physical or other mental impairment
imposing additional and significant work-related limitation of function.
See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C) (1992). . . .
Generally, a claimant meets the criteria for presumptive disability under
section 12.05(C) when the claimant presents a valid I.Q. score of 60 to 70
inclusive, and evidence of an additional mental or physical impairment
that has more than “minimal effect” on the claimant’s ability to perform
basic work activities. See Edwards by Edwards v. Heckler, 755 F.2d 1513,
1517 (11th Cir. 1985). This court, however, has recognized that 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. Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir.
1986) (rejecting a claim of section 12.05(C) mental retardation where the
claimant’s I.Q. score of 69 was inconsistent with evidence that he had a
two-year college associate’s degree, was enrolled in a third year of college
as a history major, and had worked in various technical jobs such as an
administrative clerk, statistical clerk, and an algebra teacher).
Id. at 837; see also Grant, 255 Fed. App’x at 375 (“The mental retardation Impairment
Listing in § 12.05C requires the claimant to demonstrate a ‘significant 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,’ as well as 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.’”) (quoting §§ 12.00A,
Here, the ALJ acknowledged that the Plaintiff received a valid Full Scale IQ score
of 70. (R. 37.) Furthermore, the ALJ determined that, in addition to Plaintiff’s cognitive
“depression/dysthymic disorder, obesity, and back, neck, and bilateral knee injuries
status post motor vehicle accident.” (Id. at 35.) Such severe impairments satisfy the
paragraph C criterion of physical or other mental impairments imposing an additional
and significant work-related limitation of function. Hogue v. Colvin, CA No. 2:13-00375N, 2014 WL 1744759, at *5 (S.D. Ala. April 30, 2014) (citing Edwards, 755 F.2d at 1517;
Grigsby v. Astrue, No. CV 11-06355-MAN, 2012 WL 3029766, at *4 (C.D. Cal. July 24,
Thus, the Plaintiff was entitled to a rebuttable presumption of deficits in
adaptive functioning under Listing 12.05(C). Grant, 255 Fed. App’x at 375 (“[T]he ALJ
found, and the Commissioner does not dispute, that [Plaintiff] had a valid IQ score of 69
and that she possessed a physical or mental impairment imposing an additional and
significant work-related limitation of function. She was therefore entitled to the benefit
of the rebuttable presumption established in Hodges, and the ALJ was charged with
determining whether there was sufficient evidence to rebut that presumption.”); Lowery,
979 F.2d at 837. The ALJ, however, erred by failing to apply the rebuttable presumption
of disability in the Plaintiff’s favor. (R. 36-39.) Despite recognizing a valid IQ score
between 60 and 70 and finding that the Plaintiff had another severe impairment, the
ALJ failed to discuss or even reference Listing 12.05(C). (Id.)
Rather than specifically address the paragraph C criteria of Listing 12.05 and
apply the rebuttable presumption in the Plaintiff’s favor, as the ALJ was required to do,
the ALJ discussed the adaptive functioning requirements in the introductory paragraph
of Listing 12.05 and considered the paragraph D criteria of Listing 12.05. (Id.) With
regard to the adaptive functioning requirements in the introductory paragraph of
Listing 12.05, the ALJ stated as follows:
The claimants mental impairments, considered singly and in combination,
do not meet or medically equal the criteria of . . . 12.05 (mental
retardation). The opening paragraph of listing 12.05 states: “Mental
retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested
during the developmental period.” The undersigned notes that the
Diagnostic and Statistical Manual of Mental Disorders – 4th Edition (DSM
– IV), states in relevant part: “The essential feature of Mental Retardation
is significantly subaverage general intellectual functioning [ ] that is
accompanied by significant limitations in adaptive functioning in at least
two of the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety. . . . Mental
retardation would not be diagnosed in an individual with an IQ lower
than 70 if there are no significant deficits or impairments in adaptive
functioning. . . . Impairments in adaptive functioning, rather than a low
IQ, are usually the presenting symptoms in individuals with Mental
Retardation. Adaptive functioning refers to how effectively individuals
cope with common life demands and how well they meet the standards of
personal independence expected of someone in their particular age group,
sociocultural background, and community setting.”
The undersigned has considered the evidence as a whole in light of the
above quoted material regarding mental retardation, adaptive functioning
and the skill areas related to adaptive functioning. In this case, the
claimant does not have deficits in adaptive functioning necessary to be
diagnosed with mental retardation and meet the mental retardation
listing. The evidence in this case demonstrates that the claimant functions
independently and that she engages in a wide array of daily living
activities. She is able to take care of her own personal needs such as
bathing and grooming. (Hearing testimony and Exhibit 4E). She was able
to pass the driver’s license test (reportedly on the 7th try), and is able to
drive. (Id). She reports that her mom has custody of her children, but that
she helps them get ready in the morning and drives them to school and
daycare. (Id). She is able to prepare sandwiches, frozen dinners, and “full
meals,” and she does so four times a week. (Id). She performs household
chores such as dishes, laundry, vacuuming, and sweeping. (Id). She
grocery shops, and is able to pay bills, count change, and handle a savings
account. (Id). She enjoys watching television, reading, and attending
movies. (Id). She talks to others over the telephone on a regular basis and
enjoys going to yard sales. (Id). She also spends time with her mom and
sister. (Id). She admits that she can follow written instructions as long as
they are “simple basic instructions” and that she can follow spoken
instructions “very good.” (Id). She reports that she gets along well with
authority figures, and that she has never been fired or laid off from a job
because of problems getting along with others. (Id). She was in special
education classes in school, but she received a certificate of completion
and her school record reflects that she had a 3.18 GPA and a class rank of
31 of 193. (Hearing testimony and Exhibit 1E). She reportedly struggled
performing work as a sandwich maker and a clothing presser, but she
admits that she left both of these jobs for reasons unrelated to her
psychological impairments. (Hearing testimony).
The claimant’s lack of adaptive functioning deficits is supported by
assessments from two acceptable medical sources.
administered the WAIS-III, which resulted in a valid Full Scale IQ of 70,
but she did not diagnose the claimant with mental retardation because
“her use of language, reported academic history, and response to mental
status items” demonstrated that “her level of intellectual functioning
appears to be in the Borderline range of ability.” (Exhibit 3F). In addition,
Dr. Hinton noted that the claimant’s “daily activities do not support a
functional cognitive level in the mentally retarded range, she has at least
borderline intelligence.” (Exhibit 4F). The undersigned has given the
assessments of Dr. Witchard and Dr. Hinton great weight because they are
consistent with the longitudinal record as set forth above.
undersigned notes that the record is void of assessments from any
acceptable medical source who has diagnosed the claimant with mental
retardation or opined that her impairments meet or equal the mental
(R. 36-37.) As stated above, the ALJ also considered the paragraph D criteria. The ALJ
concluded that the Plaintiff did not meet the paragraph D criteria because she had only
mild restrictions in her activities of daily living, mild difficulties in maintaining social
functioning, moderate difficulties in maintaining concentration, persistence, or pace,
and no extended episodes of decompensation.
(Id. at 37-39.)
however, the ALJ completely ignored the paragraph C criteria. (Id. at 36-39.) The ALJ’s
failure to acknowledge the applicability of Listing 12.05(C) and afford the Plaintiff the
rebuttable presumption of deficits in adaptive functioning was clear error because the
Plaintiff met both of the requirements in paragraph C.
Hogue v. Colvin, 2014 WL
1744759, at *5 (finding that the ALJ’s failure to address 12.05C and apply the rebuttable
presumption constituted error requiring remand where the Plaintiff had a valid IQ
score between 60 and 70 and the ALJ found that the Plaintiff had other severe
impairments); Frank v. Astrue, No. CA 2:11-00215-C, 2011 WL 6111692 (S.D. Ala. Dec. 8
The Commissioner argues that any error on the part of the ALJ was harmless
because “the ALJ articulated multiple valid reasons to rebut [the] presumption [of
deficits in adaptive functioning].” (Doc. 14 at 10.) The Commissioner’s argument is
First, as stated above, the ALJ never afforded the Plaintiff the
presumption in her favor and, therefore, the ALJ never found that her findings
regarding the Plaintiff’s adaptive functioning skills were sufficient to rebut or overcome
the presumption of deficits. (R. 36-39.) Rather, the ALJ simply concluded, without
considering the paragraph C criteria, that the Plaintiff’s adaptive functioning skills were
not indicative of mental retardation. (Id.) The ALJ applied the wrong standard, see
Grant, 255 Fed. App’x at 375 (concluding that the ALJ applied the wrong legal standard
because the ALJ did not afford the Plaintiff the benefit of the presumption of deficits),
[t]he harmless error doctrine does not permit a reviewing court to usurp
an administrative agency’s function by engaging in a determination that
“the agency alone is authorized to make and which it has not made;”
instead, in such cases, “[t]he grounds upon which an administrative order
must be judged are those upon which the record discloses that its action
was based.” Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 88 (1943);
Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (“We decline . . . to
affirm simply because some rationale might have supported the ALJ’s
conclusion. Such an approach would not advance the ends of reasoned
decision making.” (footnote and citation omitted)); see also Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (holding that a reviewing
court must not make findings of fact, reweigh the evidence, or substitute
its judgment for that of the ALJ).
Bush v. Colvin, Civil Act. No. 2:13-cv-50-CSC, 2014 WL 2158427, at *7 (M.D. Ala. May 23,
Second, it is far from clear that, if the ALJ had applied the correct standard, her
findings regarding the Plaintiff’s adaptive functioning skills would support the
determination that the Plaintiff did not meet Listing 12.05(C).
Evidence of daily
activities indicative of independent living is not inconsistent with an IQ score in the 6070 range.
Frank, 2011 WL 6111692, at *6 (citing Alday v. Astrue, No. 5:08cv217-
SPM/WCS, 2009 WL 347722, at *3-7 (N.D. Fla. Feb. 11, 2009); Black v. Astrue, 678 F.
Supp. 2d 1250, 1261 (N.D. Fla. 2010)).
The caselaw addressing the “adaptive functioning” aspect of
Listing 12.05C suggests that the adaptive functioning must be significantly
inconsistent with the I.Q. score.4 An ability to do simple daily activities
and simple jobs is not enough. As noted in Lowery, in Popp the court
sustained the ALJ’s rejection of a claim of equivalency to Listing 12.05C
because the claimant’s I.Q. score of 69 was “inconsistent with evidence
that [the claimant] had a two-year college associate’s degree, was enrolled
in a third year of college as a history major, and had worked in various
technical jobs such as an administrative clerk, statistical clerk, and an
algebra teacher.” 979 F.2d at 837, citing Popp, 779 F.2d at 1499.
Additionally, there was evidence in Popp that the claimant had “tended to
place himself in a very unfavorable light,” thereby rendering the
personality test scores (the MMPI, not the I.Q. test) invalid in the opinion
of the examiner. Popp, 779 F.2d at 1498-1499, 1500.
Popp is perhaps the strongest case for finding that an I.Q. score
below 70 does not necessarily meet Listing 12.05C. There are several
others with facts somewhat like Popp. Bischoff v. Astrue, 2008 WL 4541118
(S.D. Fla. Oct. 9, 2008) (No. 07-60969-CIV), affirmed the determination that
Listing 12.05C was not met. The court noted that while the claimant’s I.Q.
scores were lower than 70, the claimant had previously worked as a parts
manager and as an automobile mechanic, jobs which required technical
knowledge and skills, and he successfully supervised other people for five
years. Id., at *20. There was also evidence that the claimant was “faking”
his I.Q. score, and gave conflicting reports that he had finished only the
sixth, or seventh, or eighth, or ninth, or tenth grades, or had a G.E.D., or
had vocational training. Id.
See also Siron v. Comm’r of Soc. Sec. Admin., No. 13-10441, 556 Fed. App’x 797, 799
(11th Cir. Feb. 18, 2014) (“[T]he evidence presented in cases where we affirmed an ALJ’s
rejection of an IQ score overwhelmingly indicated that the claimant was not mentally retarded
and likely attempted to tailor results to effect a desired outcome[.]”). But see Hickel, 539 Fed.
App’x at 984 (concluding that substantial evidence supported the ALJ’s determination that the
plaintiff did not meet Listing 12.05, despite an IQ score of 63, where the plaintiff was “a high
school graduate, she work[ed] part time at a nursery, she dr[ove] herself to work, she [could]
prepare simple meals and dress and groom herself, she attend[ed] church regularly, and she
socialize[d] with friends.”)
Monroe v. Astrue, 726 F. Supp. 2d 1349, 1355 (N.D. Fla. 2010).
Here, the evidence demonstrates that, although the Plaintiff had a high school
GPA of 3.18 and a class rank of 31 of 193, she was in special education classes and never
received a high school diploma. (R. 54-55, 149.) Instead, she received a certificate of
attendance. (Id. at 54, 149.) She has worked two jobs—one pressing clothes for a dry
cleaner and the other assembling hamburgers at a fast food restaurant. (Id. at 55.) The
Plaintiff testified that she obtained the job at the fast food restaurant because a mental
health caseworker first contacted the restaurant on her behalf. (Id. at 60-61.) As a
clothes presser and as a hamburger assembler, the Plaintiff needed assistance from
other employees. (Id. at 59-61.) At the fast food restaurant, the food orders were
displayed on a monitor and another employee needed to read her the orders. (Id. at 61.)
Neither job was performed at substantial gainful activity levels. (Id. at 43.) The Plaintiff
lives with her mother and her three children, but her mother has custody of her
children. (Id. at 37, 56.) The Plaintiff is able to prepare meals and perform household
chores, such as laundry, vacuuming and sweeping. (Id. at 37.) She is able to shop, pay
bills, count change and handle a savings account. (Id.) She has a driver’s license and is
able to drive, but she needed seven attempts to pass the driver’s test. (Id.)
Thus, the evidence of record and the ALJ’s findings regarding adaptive
functioning are not necessarily inconsistent with the Plaintiff’s IQ score of 70. Notably,
the Plaintiff has no history of managing or supervising other workers, and she has no
history of skilled or semi-skilled labor. The evidence suggests that the Plaintiff had
difficulty with unskilled work. Furthermore, her academic history demonstrates that
her high school classes were within the special education program and she had no
academic or technical training following high school. Additionally, the Commissioner
presented no evidence that the Plaintiff manipulated her IQ score to misrepresent her
level of intelligence. For those reasons, this case appears to be distinguishable from the
cases in this Circuit where courts affirmed an ALJ’s determination that Listing 12.05(C)
was not met despite IQ scores in the 60 to 70 range. See Perkins v. Comm’r, Soc. Sec.
Admin., No. 13-12024, 553 Fed. App’x 870, 873 (11th Cir. Jan. 22, 2014) (affirming that
Listing 12.05(C) was not met where the plaintiff performed skilled jobs, managed other
workers, and made contradictory claims regarding his education and employment
history); Popp, 779 F.2d at 1499 (affirming that Listing 12.05(C) was not met where the
plaintiff had worked skilled jobs, obtained a college degree and exaggerated his deficits
when examined); Brown v. Astrue, No. CV608-036, 2009 WL 2135005, at *5 & n.5 (S.D.
Ga. Jul 15, 2009) (affirming that Listing 12.05(C) was not met where the plaintiff had a
history of performing skilled work and supervising other workers); Lyons v. Astrue, No.
2:08-cv-614-FtM-29SPC, 2009 WL 1657388, at *10-11 (M.D. Fla. Jun 10, 2009) (affirming
that Listing 12.05(C) was not met where the plaintiff received a high school diploma,
was not enrolled in special education classes, and malingered during testing); Bischoff,
2008 WL 4541118, at *20 (affirming that Listing 12.05(C) was not met where the plaintiff
held managerial positions and jobs requiring technical knowledge and skills and the
ALJ found that he was faking his deficits); Davis v. Astrue, Civil Action No. 2:07cv880TFM, 2008 WL 2939523, at *3 (M.D. Ala. Jul 25, 2008) (affirming that Listing 12.05(C)
was not met where the plaintiff had a history of semi-skilled work and received
vocational training in cosmetology and secretarial skills).
In any event, the record is certainly not clear that the presumption of deficits in
adaptive functioning, to which the Plaintiff is entitled, is rebutted by the evidence of
record, and the undersigned declines to make such a determination when the ALJ failed
to do so. As discussed above, this case must be reversed and remanded due to the
ALJ’s failure to consider Listing 12.05(C) and apply the correct legal framework.
It is ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C.
§ 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision.
The remand pursuant to
sentence four of § 405(g) makes the Plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S. Ct. 2625,
125 L. Ed. 2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 7th day of July 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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