Williams v. Colvin
Order entered that the decision of the Commissioner of Social Security denying Plantiff's claim for supplemental security income be reversed and remanded due to the ALJ's failure to consider Listing 12.05C and apply the correct legal framework. Signed by Magistrate Judge Sonja F. Bivins on 6/16/2015. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DAVID L. WILLIAMS,
CAROLYN W. COLVIN,
Commissioner of Social
CIVIL ACTION NO. 14-00351-B
seeks judicial review of a final decision of the Commissioner of
income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.
On June 2, 2015, the parties consented to have
the undersigned conduct any and all proceedings in this case.
Thus, the action was referred to the undersigned to
accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Upon careful consideration of the administrative
record and the memoranda of the parties, it is hereby ORDERED
that the decision of the Commissioner be REVERSED and REMANDED
for further proceedings not inconsistent with this decision.1
Plaintiff alleged that he has been disabled since June 15, 1995
due to “learning disability with other mental problems.”
at 130, 134).
Administrative Law Judge Marni McCaghren (hereinafter “ALJ”) on
August 30, 2012.
(Id. at 33).
Plaintiff attended the hearing
with his counsel and provided testimony related to his claims.
(Id. at 36).
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
Plaintiff is not disabled.
(Id. at 50).
On November 28,
(Id. at 29).
The Appeals Council
denied Plaintiff’s request for review on May 30, 2014.
Thus, the ALJ’s decision dated November 28, 2012, became
the final decision of the Commissioner.
Any appeal taken from this decision shall be made to the
Eleventh Circuit Court of Appeals.
(See Doc. 19)(“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 court.”).
timely filed the present civil action.
was conducted on June 2, 2015, and the parties agree that this
case is now ripe for judicial review and is properly before this
Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Issue on Appeal
Whether the ALJ erred in failing to find
that Plaintiff met Listing 12.05C?
Whether the ALJ erred in assigning more
weight to the opinions of Dr. Joanna
psychologist, Dr. Kenneth R. Starkey,
III. Factual Background
Plaintiff was born on May 14, 1992, and was twenty years of
age at the time of his administrative hearing on August 30,
2012. (Tr. 36).
The record reflects that Plaintiff received
attention deficit hyperactivity disorder (“ADHD”) and that his
benefits were discontinued in October 2010.
(Id. at 38, 240).
As noted, supra, in his instant application, Plaintiff seeks
(Id. at 130, 134).
Plaintiff was enrolled in special education classes while
Plaintiff reported that he completed the eleventh grade in high
school, that his last report card had all “E’s” and that he has
not obtained a GED.3
(Id. at 37, 240).
Plaintiff testified that
he has trouble with math and reading, but he is able to read a
grocery list, and he can make change if it is not a large sum of
Plaintiff also testified that he lives with his uncle and
accompanies his uncle to the grocery store and lifts things for
(Id. at 36, 46).
According to Plaintiff, he lived with
his mother prior to her death and during that time, he cleaned
the house for her and reminded her to take her medication.
at 46, 48-49).
Plaintiff testified that he can prepare simple
meals for himself, but he has never lived alone, had a bank
account, learned to drive, or taken public transportation.4
at 44, 46-47, 50).
Plaintiff stated that he enjoys fishing,
going to the gym, playing basketball, playing basketball and
football video games on the Play Station, watching football and
The record reflects that Plaintiff was dropped from the special
education program after middle school due to failure to sign
appropriate paperwork and failure to attend meetings. (Tr. 240).
Plaintiff testified that he left school in the eleventh grade
because he kept “getting in trouble” and that he plans to obtain
his GED, although he is not enrolled in any classes.
37-38). He has not had any other schooling. (Id. at 38).
Plaintiff testified that he never learned to drive because he
does not have a vehicle. (Tr. 46-47).
basketball on television, and visiting with friends daily.
at 42, 45, 263, 299).
According to Plaintiff, he understands
the steps necessary to play the video games, and the scoring
utilized in basketball and football, but he does not understand
the rules with respect to penalties.
(Id. at 42-43).
Plaintiff testified that he has never worked because his
back aches and his wrist hurts, 5 and he is learning disabled.
(Id. at 38-40).
He also testified that he has never received
transportation to get there.
(Id. at 47).
Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
Plaintiff’s attorney acknowledged that there was no evidence in
the record of any medically determinable impairment related to
Plaintiff’s back or wrist.
that he has seen doctors in the past, but he stopped going to
doctors because his Medicaid was discontinued in 2010 and
because he did not have a ride. (Id. at 43-44). He testified
that he is not on any medication for any condition.
In his Disability Report dated July 22, 2011, Plaintiff
listed no current medications and stated that he does not intend
to see a doctor in the future for any physical or mental
problem. (Id. at 150).
legal standards were applied.
1520, 1529 (11th Cir. 1990).
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
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
determining if a claimant has proven his disability. 7
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
automatically found disabled regardless of age, education, or
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant 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 claimant’s age,
education and work history.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
claimant’s residual functional capacity, age, education, and
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
has not engaged in substantial gainful activity since April 5,
personality disorder, learning disorder (borderline intellectual
functioning), and eustachian tube dysfunction.
ALJ further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
(Id. at 23).
functional capacity (hereinafter “RFC”) to perform a range of
medium work, except that “due to a history of dizziness, he
simple, routine tasks, one-two step instructions, occasional and
casual contact with the public, and only occasional changes in
the work setting.
He should not be required to read unfamiliar
Due to some issues with learning disabilities, he
personality issues, he should not be involved in the care of
others such as patients, the elderly, and pets.
Due to pain and
psychological factors, he could be expected to have some deficit
in concentration, persistence or pace, which would cause him to
The claimant could be around coworkers, but should not
have to coordinate with them to complete tasks.”
(Id. at 25).
determinable impairments could reasonably be expected to produce
the alleged symptoms, his statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not credible to the extent they are inconsistent with the RFC
(Id. at 26).
Utilizing the testimony of a VE, the ALJ concluded that
considering Plaintiff’s residual functional capacity for a range
experience, there are jobs existing in the national economy that
Plaintiff is able to perform, such as “stacker,” “scullion,” and
(Id. at 28).
is not disabled.
Thus, the ALJ concluded that Plaintiff
In determining whether Plaintiff’s impairments were severe,
the ALJ made the following relevant findings:
The medical record establishes a history of
psychological impairments manifested by an
adjustment disorder with mixed emotion,
disorder, attention deficit hyperactivity
disorder, personality disorder, and learning
disorder. (Exhibits 1F, 2F, 3F, 5F, 6F, 8F,
trouble getting along with others, poor
sleep, defiance of authority figures, and
poor academic performance.
2F, 3F, 5F, 8F & 13F)
As determined by most recent
testing results in a consultative report
dated June 2, 2011, the claimant achieved a
Reasoning Index of 71, Working Memory Index
of 71, and Processing Speed Index of 71.
Taken jointly, these scores
place Mr. Williams at the 1st, 3rd, 3rd, 3rd
and 3rd percentiles respectively, and in the
Extremely Low (Mild Mental Retardation)
range of functioning.
(Exhibit 8F, p. 5)
The claimant suffers from eustachian tube
dysfunction, where he had been hit the past
on the left side of head by brass knuckles.
Although he suffers from no
attributable to this remote injury.
In determining that Plaintiff did not meet any Listing, the
ALJ also made the following relevant findings:
The record reflects no gross and/or marked
In fact, at the time
when the claimant presented to the emergency
room on July 11, 2010 with complaints of
atypical chest pain with no cardiac cause,
he had normal range of motion of the
extremities, no lower extremity edema, and
no motor deficits. (Exhibit 4F)
Additionally, in a consultative report dated
June 2, 20ll and with the exception of
problems with anger, aggressive
and lifelong history of learning problems,
“He denied having symptoms of any other
medical or psychiatric condition that might
(Exhibit 8F, p. 3)
response to medication and therapy as well
such that on January 9, 2010, “pt is doing
wonderful at home and school; got good
behavior award.” (Exhibits IF, p. 1)
Center] as of May 24, 2010, the claimant
presented a silly affect, poor sleep and
reports of past suicidal ideation. (Exhibit
2F & 13F)
However, he also demonstrated
appropriate grooming, normal and cooperative
behavior, normal mood, no impairment of
speech, no current suicidal or homicidal
thoughts, no impairment of concentration,
good insight, fair judgment, and no anxiety.
(Exhibits 2F & 13F)
Thereafter, the claimant failed to attend a
scheduled appointment on June 7, 2010, and
correspondence was forwarded to his guardian
(grandmother) advising them of the need to
attend therapy sessions no less than once a
(Exhibits 2F & 13F)
reports show that he rescheduled his session
that was to take place on June 29, 2010,
rescheduled his session that was to take
place on July 13, 2010, failed to show up at
his session on July 28, 2010, and failed to
show up at his session on September 1, 2010.
Thus, on December 1, 2010,
intake session at this facility and failed
appointments.” (Exhibit 13F, p. 8)
Therefore, the severity of the claimant’s
mental impairments, considered singly and in
combination, do not meet or medically equal
the criteria of listings 12.02, 12.04 and
12.06 (emphasis added) ...
(Id. at 22-23).
In assessing Plaintiff’s RFC, the ALJ made the following
relevant findings with respect to Plaintiff’s impairments:
4. After careful consideration of the entire
record and giving the claimant the benefit
of considerable doubt, the undersigned finds
functional capacity to perform medium work
as defined in 20 CFR 416.967(c) except that
due to a history of dizziness, he should not
climb ladders, ropes and scaffolds, work at
unprotected heights, operate machinery, or
drive automotive equipment. Due to learning
difficulties, he is limited to simple,
routine tasks, one-two step instructions,
occasional and casual contact with the
public, and only occasional changes in the
He should not be required to
read unfamiliar texts as a job requirement,
but could complete familiar checklists. Due
to some issues with learning disabilities,
he should not have to handle money. Because
of some anger personality issues, he should
not be involved with the care of others such
as patients, the elderly and pets.
pain and psychological factors, he could be
concentration, persistence or pace, which
would cause him to be off task for a
nonproductive pace for up to 5% of the
The claimant could be around
coworkers, but should not have to coordinate
with them to complete tasks.
. . .
At the hearing, the claimant testified he is
20 years old and he stopped attending school
in 11th grade because he kept getting into
He reportedly is going to
enroll in classes to get his GED. He noted
having learning difficulties causing trouble
with reading and math.
He also has [a]
He admitted to not following
recommended treatment because he had no
transportation to get his prescriptions and
attend therapy. He also acknowledged he did
not try to take the bus and stated that
people at the mental health facility did not
He also has never tried to
learn how to drive or obtain a driver’s
license, as well as never had vocational
He reportedly spends most
of his time in his room, but does get
together with friends and plays video games
with them pretty much every day and for a
couple of hours and helps his uncle at the
After careful consideration of the evidence,
the undersigned finds that the claimant’s
reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements
concerning the intensity, persistence and
limiting effects of these symptoms are not
credible to the extent they are inconsistent
with the above residual functional capacity
While the claimant certainly has significant
psychological impairments and difficulties,
compliance with recommended treatment has
been less than optimal.
Not only did he
fail to follow up with therapy as directed,
but he has demonstrated questionable effort
consultative report dated July 1, 2010, Dr.
Jennifer L. Adams, Ph.D., did not consider
the claimant and his grandmother reliable
informants and noted the possibility of
discontinued receipt of Special Education
Services due “failure to sign appropriate
paperwork or attend meetings seems to be
lead to a termination in these services.”
(sic) (Exhibit 3F, p.3)
“seems to put very little effort into doing
He has been inconsistent with
mental health services as well.” (Exhibit
3F, p. 3)
Dr. Adams also questioned test results in
light of the possibility of malingering and
he “often showed poor effort and a tendency
to give up easily.”
(Exhibit 3F, p. 5)
obtained when the claimant was in 4th Grade
showed a non-verbal quotient of 74, much
higher than the attained Full IQ Score at
this time of 49. (Exhibit 3F)
claimant had the ability to perform the
demands of simple, unskilled work to the
extent that “David has the ability to
instructions, although one-step directions
would work best for David.
He may struggle
with responding to supervision due to the
ODD, but he should be able to work with coworkers and handle work pressures.” (Exhibit
3F, p. 5)
In a consultative report dated August 30,
2010, “He reports that the medications help
him do better in school and sleep better.”
(Exhibit 5F, p. 3) Yet, “He did not take his
medication today.” (Exhibit
5F, p. 3)
this time, the consultative examiner, Dr.
John W. Davis, Ph.D., equally questioned
test results and “it is felt that these
claimant’s ability for unknown reasons.
Claimant did not seem to put forth his best
efforts and there are strong efforts of
However, the claimant did demonstrate the
ability to make simple change, do simple
difficulty, count backwards from 20 to 1
without difficulty, spell “world” backwards,
handle four digits forward and three digits
backwards, recall three of three objects in
one minute and three objects in
minutes, and describe the details of the
trip to this office without difficulty.
Again, at the time of his most recent
consultative evaluation with Dr. Kenneth R.
Starkey, Psy.D., on June 2, 2011, the
claimant noted he was not presently taking
prescribed medication and had not taken his
hyperactivity disorder since 2009, as well
as he had not attended outpatient counseling
for any or any other concern since 2009.
minimal weight is
marginal to poor work-related limitations
given the claimant at this time had no
mental health treatment, which in the past
had been very beneficial.
The claimant recently resumed mental health
treatment on May 10, 2012, but again failed
to attend the scheduled session on May 18,
therapist’s letter and message on May 24,
Consequently, on June 7, 2012, the
claimant’s chart was recommended to be
closed due to “Consumer has failed to stay
in contact with this facility.”
13F, p. 1)
The severity of Dr. Starkey[’s] assessed
mental limitations also appears to be much
too restrictive in light of claimant’s
demonstrated adaptive functioning. Not only
does he continue to have the ability to meet
his own personal needs independently, he is
able to perform activities illustrative of
the ability to perform the demands of
simple, unskilled work.
In this regards,
Dr. Adams specifically commented, “David’s
activities are pretty consistent with his
probabl[e] IQ level.
He reports that he
hangs out with friends, plays video games,
and tends to his room clean.”
(Exhibit 3F, p. 4)
The claimant equally
testified he plays basketball and football
and video games on play station and is able
to understand the steps to play these games.
He watches his football team (Vikings) and
understands how points are scored, but not
He can read a grocery list and
He acknowledged plans to enroll in
classes to get his GED as well.
adaptive functioning, the undersigned finds
the claimant’s intellectual functioning is
best reflected by a diagnosis of borderline
intellectual functioning, as opposed to mild
As for the opinion evidence, there are no
delineating the claimant as disabled.
Moreover, the undersigned has considered and
Koulianos, Ph.D.] at Exhibits 9F, 10F and
determined the claimant had severe mental
impairments causing mild restriction of
maintaining concentration, persistence or
pace, and no episodes of decompensation.
Otherwise, the claimant should be able to
remember, understand and carry out short,
simple, one and two step instructions;
increments of time; engage in limited and
casual contact with the general public;
respond to criticism from supervisors that
are presented objectively, with support and
in a simple manner; respond to limited and
gradually introduced changes in routine work
duties; and he should not be expected to
make long term goals or plans independently.
It is also noted that the claimant had
received benefits in the past as a child
from August 2000 to October 2010.
the level of severity to warrant disability
as an adult is not evidence in this record.
The evidence does not show the claimant is
unable to work.
capacity assessment is supported by [the]
record as a whole with significant weight
accorded the psychological assessments of
the State agency medical consultants.
(Id. at 25-28) (emphasis added).
The Court now considers the
foregoing in light of the record in this case and the issue on
A. Whether the ALJ erred in failing to
find that Plaintiff met Listing 12.05C?
failing to discuss Listing 12.05C and in failing to find that he
argues that he has satisfied
the criteria of Listing 12.05C
because he has a valid Full Scale IQ score of 66 and other
mental impairments that impose additional and significant workrelated limitations of function, i.e., adjustment disorder with
behavior disorder, and personality disorder.
(Doc. 15 at 3-4).
mild mental retardation a severe impairment and choosing instead
to adopt the diagnosis of borderline intellectual functioning
found elsewhere in the record, the ALJ signaled his rejection of
Plaintiff’s IQ scores.”
(Doc. 16 at 4).
The Commissioner also
asserts that although “the ALJ did not explicitly discuss the
Plaintiff’s burden to produce evidence showing that he meets a
evidence. (Id. at 4-6).
Having reviewed the record at length,
the Court finds that 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.
As stated above, the Social Security regulations set forth
a five-step sequential evaluation process to determine whether a
claimant is disabled. At step three, the claimant has the burden
See Harris v. Commissioner of Soc. Sec., 330 Fed.
Appx. 813, 815 (11th Cir. 2009) (unpublished) 8 (citing Barron v.
Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)).
“Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11TH CIR. R. 36-2.
contains the Listings for mental disorders, which are arranged
(12.02); schizophrenic, paranoid and other psychotic disorders
(12.05); anxiety-related disorders (12.06); somatoform disorders
developmental disorders (12.10).”
App. 1, § 12.00(A).
20 C.F.R. Pt. 404, Subpt. P,
In his decision, the ALJ states that “the
severity of the claimant’s mental impairments, considered singly
and in combination, do not meet or medically equal the criteria
of listings 12.03, 12.04 and 12.06”.
The ALJ then
goes on to discuss the “paragraph B” and “paragraph C” criteria,
in relation to the three above-referenced listings; however, the
ALJ’s decision does not reference, let alone discuss, Listing
12.05C, which is the listing at issue in this case.
To establish disability under section 12.05C, a claimant
must present evidence of “[a] valid verbal, performance or full
scale IQ of 60-70 and a physical or other mental impairment
imposing an additional and significant work-related limitation
In addition, the claimant must satisfy the ‘diagnostic
description’ of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 9 which
supports onset of the impairment before age 22.”
20 C.F.R. Part
404, Subpart P, Appendix 1, §§ 12.05.
The law in this Circuit provides that a valid IQ score of
60-70 after age 22 creates a rebuttable presumption that the
claimant manifested deficits in adaptive functioning prior to
the age of twenty-two.
See Hodges v. Barnhart, 276 F. 3d 1265,
1268-69 (llth Cir. 2001).
Thus, “a claimant meets the criteria
claimant presents a valid I.Q. score of 60 to 70 inclusive, and
evidence of an additional mental or physical impairment that has
On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
See Hickel v. Commissioner of Soc.
Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78
Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1)).
“This change was made because the term
‘mental retardation’ has negative connotations, and has become
offensive to many people.
(citations and internal
quotation marks omitted). “The Social Security Administration
stated that the change does not affect the actual medical
definition of the disorder or available programs or services.”
Id. (citations and internal quotation marks omitted). As in
Hickel, this opinion uses the term “mental retardation” and
“intellectual disability” interchangeably.
perform basic work activities.”
Smith v. Commissioner of Soc.
Sec., 535 Fed. Appx. 894, 897 (llth Cir. 2013)(quoting Lowery v.
Sullivan, 979 F. 2d 835, 837 (11th Cir. 1992)).
The presumption under 12.05C can be rebutted, however, when
claimant’s daily activities and behavior.
See Popp v. Heckler,
779 F.2d 1497, 1499-1500 (llth Cir. 1986).
Accordingly, the ALJ
is tasked with determining whether there is sufficient evidence
(relating to plaintiff’s daily life) to rebut the presumption.
See Grant v. Astrue, 255 Fed. Appx. 374, 375 (llth Cir. 2007);
Hartman v. Colvin, 2014 U.S. Dist. LEXIS 91467, *7, 2014 U.S.
Dist. LEXIS 91467, *3 (S.D. Ala. July 7, 2014).
The record reflects that since age eighteen, Plaintiff has
been administered IQ tests on three (3) separate occasions.
Jennifer Adams, Ph.D. (Tr. 240-243).
scale score of 59.
Plaintiff received a full
Dr. Adams noted that testing results from
the Test of Malingering was indicative of malingering and opined
that Plaintiff’s actual IQ is most likely in the
She also opined that Plaintiff could understand and
carry out one step directions, that he may struggle responding
to supervision appropriately, that he could work with co-workers
managing any financial benefits that he received.
(Id. at 243).
Plaintiff was next administered the WAIS-IV by Dr. John Davis in
(Id. at 260-264).
IQ score of 57.
Plaintiff received a full scale
Dr. Davis opined that the score was invalid,
that Plaintiff had not put forth his best effort, that there
were strong signs of malingering, and that Plaintiff could not
manage any benefits that were forthcoming.
Nearly a year
later, Plaintiff was administered the WAIS-IV by Dr. Kenneth
Extremely Low (Mild Mental Retardation) range of functioning.” 10
(Id. at 298-99).
Dr. Starkey opined that the IQ scores appeared
expected to yield a [f]ull [s]cale I.Q. score falling within in
a range of 63 to 70. . .,” and that Plaintiff “was adequately
pressures appeared “marginal” to “poor.”
A careful review of the ALJ’s decision reflects that in
Plaintiff also received a Verbal Comprehension score of 72,
Perceptual Reasoning score of 71, Working Memory score of 71,
and Processing Speed score of 71. (Tr. 299).
discussing whether Plaintiff’s impairments would be expected to
Starkey’s diagnosis of mild mental retardation.
(Id. at 27)
However, the ALJ did not invalidate Plaintiff’s most recent 2011
full IQ score of 66.
Instead, the ALJ simply concluded, without
considering 12.05C, that Plaintiff’s adaptive functioning skills
were not indicative of mental retardation.
undersigned finds that the claimant’s intellectual functioning
functioning, as opposed to mild mental retardation.”
Given Plaintiff’s full IQ score of 66, and the ALJ’s
including adjustment disorder, attention deficit hyperactivity
Colvin, 2014 U.S. Dist. LEXIS 91467, 2014 WL 3058550, *5 (S.D.
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 U.S. Dist. LEXIS 59667,
2014 WL 1744759, *5 (S.D. Ala. Apr. 30, 2014) (finding that the
Plaintiff had a valid score between 60 and 70, and the ALJ found
that the Plaintiff had other severe impairments).
The undersigned recognizes that in addressing the “adaptive
functioning” aspect of Listing 12.05C, the Eleventh Circuit has
sustained the rejection of claims under this Listing where the
claimant’s IQ score was significantly inconsistent with his/her
For instance, in Perkins v. Commissioner,
Eleventh Circuit upheld the ALJ’s finding that Listing 12.05C
including as a skilled cook, managed other workers and made
Also, in Hickel v. Commissioner, 539 Fed. Appx. 980
(llth Cir. 2013), the Eleventh Circuit held that the ALJ did not
err where he acknowledged that the claimant had a valid IQ score
Hodges, and found that the presumption was rebutted by other
evidence that showed that the claimant did not have “deficits in
Id. at 984.
In reaching its decision,
the court noted that although the claimant had been enrolled in
special education classes, she worked part-time in a nursery,
herself, drove herself to work, attended church regularly, and
socialized with friends.
Id. at 984-985.
See also Popp, 779
F.2d at 1499 (affirming finding that Listing 12.05C was not met
where the plaintiff had worked skilled jobs, obtained a college
degree, and had exaggerated his deficits when examined); White
v. Colvin, 2015 U.S. Dist. LEXIS 28277, 2015 WL 1013117, *4
functions where the record reflected that although the plaintiff
had been in special classes, he lived alone, maintained his
financial affairs, and consistently worked at several different
jobs); Robinson v. Colvin, 2015 U.S. Dist. LEXIS 43338, 2015 WL
1520431, *11 (S.D. Ala. Apr. 2, 2015) (where the plaintiff lived
independently without a highly supportive living arrangement,
activities); Johnson v. Colvin, 2014 U.S. Dist. LEXIS 13497,
2014 WL 413492, *4 (S.D. Ala. Feb. 3, 2014) (although the ALJ
never stated that the claimant failed to meet Listing 12.05C,
the ALJ’s finding that the claimant had high adaptive skills, in
that he had the capacity to take care of his own needs, perform
activities of daily living, and had successfully performed four
retarded); Lyons v. Astrue, 2009 U.S. Dist. LEXIS 128950 (M.D.
Fla. May 24, 2009), adopted by 2009 WL 1657388, *11 (M.D. Fla.
June 10, 2009) (The ALJ’s finding that the claimant did not meet
demonstrated that the claimant had a high school diploma, was
security forms, and had earnings from 1983–1990 between $13,696
and $18,408 per year).
In this case, the evidence reflects that Plaintiff resides
with his uncle, plays sports and video games, works out at the
gym, cares for his personal needs, prepares light meals and can
assist with some household chores.
The evidence also reflects
that Plaintiff was enrolled in special education classes, that
he repeated the first and ninth grades, that he had all “E’s” on
his last report card, and that he left school after the eleventh
license, has never taken public transportation, and has never
held a job.
Plaintiff has difficulty reading and is able to
make small change; but, the consultative doctors opined that he
review of the record, examination of the analysis employed in
finds that it is far from clear that the presumption of deficits
in adaptive functioning, to which Plaintiff is entitled, has
been rebutted. 11
Accordingly, the ALJ’s decision is due to be
reversed and remanded to the Commissioner.
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be reversed and remanded due to the
ALJ’s failure to consider Listing 12.05C and apply the correct
DONE this 16th day of June, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
The undersigned also rejects the Government’s assertion that
any error was harmless.
As noted above, it is not clear from
the evidence before the Court that the presumption afforded by
Listing 12.05C has been rebutted.
Moreover, it is unrefuted
that Plaintiff meets the second prong of Listing 12.05C given
that the ALJ determined that Plaintiff has several severe mental
impairments such as adjustment disorder, oppositional defiant
personality disorder. (Tr. 22).
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