Williams v. Colvin

Filing 22

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
SOUTHERN DIVISION
DAVID L. WILLIAMS,

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*
*
*
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 14-00351-B

ORDER
Plaintiff

David

L.

Williams

(hereinafter

“Plaintiff”),

seeks judicial review of a final decision of the Commissioner of
Social

Security

denying

his

claim

for

supplemental

security

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.
(Doc. 19).
conduct

Thus, the action was referred to the undersigned to

all

proceedings

and

order

the

entry

of

judgment

in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73.

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
I.

Procedural History
Plaintiff

supplemental

protectively

security

filed

income

on

an

April

application

5,

2011.

(Tr.

for
130).

Plaintiff alleged that he has been disabled since June 15, 1995
due to “learning disability with other mental problems.”

(Id.

at 130, 134).
Plaintiff’s
request,

he

applications

was

granted

were

an

denied

and

administrative

upon

timely

hearing

before

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.
2012,

the

ALJ

issued

an

Plaintiff is not disabled.

(Id. at 50).

unfavorable

On November 28,

decision

(Id. at 29).

finding

The Appeals Council

denied Plaintiff’s request for review on May 30, 2014.
1).

that

(Id. at

Thus, the ALJ’s decision dated November 28, 2012, became

the final decision of the Commissioner.
Having

exhausted

his

administrative

1

remedies,

Plaintiff

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.”).

2

timely filed the present civil action.

(Doc. 1).

Oral argument

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).
II.

Issue on Appeal
A.

Whether the ALJ erred in failing to find
that Plaintiff met Listing 12.05C?

B.

Whether the ALJ erred in assigning more
weight to the opinions of Dr. Joanna
Koulianos,
Ph.D.,
a
State
Agency
reviewing
psychologist,
than
the
opinions
of
consultative,
examining
psychologist, Dr. Kenneth R. Starkey,
Psy.D.?

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).
social

security

The record reflects that Plaintiff received
disability

benefits

as

a

child

based

on

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
benefits
problems.”

based

on

“learning

disability

and

other

mental

(Id. at 130, 134).

Plaintiff was enrolled in special education classes while

3

in

school,

and

he

repeated

the

first

and

ninth

grades.

2

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
money.

(Id.).

Plaintiff also testified that he lives with his uncle and
accompanies his uncle to the grocery store and lifts things for
him.

(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).

(Id.

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).

(Id.

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
2

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).

3

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.
(Tr. at
37-38). He has not had any other schooling. (Id. at 38).

4

Plaintiff testified that he never learned to drive because he
does not have a vehicle. (Tr. 46-47).

4

basketball on television, and visiting with friends daily.
at 42, 45, 263, 299).

(Id.

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).
vocational

He also testified that he has never received

rehabilitation

because

transportation to get there.
IV.

he

does

not

have

(Id. at 47).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct

5

Plaintiff’s attorney acknowledged that there was no evidence in
the record of any medically determinable impairment related to
Plaintiff’s back or wrist.
(Tr. 39-40).
Plaintiff testified
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.
(Id. at
48).
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).

5

legal standards were applied.
1520, 1529 (11th Cir. 1990).

6

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.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

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); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
6

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
6

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.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability. 7

for

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff

7

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
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
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.
Id.
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
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
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)).
7

has not engaged in substantial gainful activity since April 5,
2011,

the

application

impairments

of

oppositional

defiant

conduct

date,

adjustment

disorder,

and

disorder

disorder,

attention

that

he
with

the

severe

mixed

emotion,

behavior

disorder,

hyperactivity

disorder,

disruptive

deficit

has

personality disorder, learning disorder (borderline intellectual
functioning), and eustachian tube dysfunction.

(Tr. 22).

The

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.
The

ALJ

(Id. at 23).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
medium work, except that “due to a history of dizziness, he
should

not

climb

unprotected

ladders,

heights,

equipment.

Due

to

ropes

operate
learning

and

machinery,

scaffolds,
or

difficulties,

drive
he

is

work

at

automotive
limited

to

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

texts

requirement,

as

a

job

but

could

complete

familiar

checklists.

Due to some issues with learning disabilities, he

should

have

not

to

handle

money.

Because

of

some

anger

personality issues, he should not be involved in the care of

8

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
be

off

task

workday.

for

a

nonproductive

pace

for

up

to

of

the

The claimant could be around coworkers, but should not

have to coordinate with them to complete tasks.”
The

5%

ALJ

also

determined

that

while

(Id. at 25).

Plaintiff’s

medically

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
assessment.

(Id. at 26).

Utilizing the testimony of a VE, the ALJ concluded that
considering Plaintiff’s residual functional capacity for a range
of

medium

work,

as

well

as

his

age,

education

and

work

experience, there are jobs existing in the national economy that
Plaintiff is able to perform, such as “stacker,” “scullion,” and
“crab

butcher,”

unskilled.

all

of

(Id. at 28).

is not disabled.

which

are

classified

as

medium

and

Thus, the ALJ concluded that Plaintiff

(Id.).

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,

9

oppositional
deficient
(sic)
disorder,
disruptive
behavior
disorder,
conduct
disorder, attention deficit hyperactivity
disorder, personality disorder, and learning
disorder. (Exhibits 1F, 2F, 3F, 5F, 6F, 8F,
&
13F)
Reported
symptoms
included
inattentiveness,
difficulty
following
instructions,
hyperactivity,
trouble
concentrating,
inability
to
sit
still,
inappropriate
and
aggressive
behavior,
trouble getting along with others, poor
sleep, defiance of authority figures, and
poor academic performance.
(Exhibits 1F,
2F, 3F, 5F, 8F & 13F)
Evaluations
also
suggest
mild
mental
retardation.
As determined by most recent
testing results in a consultative report
dated June 2, 2011, the claimant achieved a
Full
Scale
IQ
score
66,
a
Verbal
Comprehension
Index
of
72,
Perceptual
Reasoning Index of 71, Working Memory Index
of 71, and Processing Speed Index of 71.
(Exhibit 8F)
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.
(Exhibit 6F)
Although he suffers from no
hearing
deficits,
he
noted
dizziness
attributable to this remote injury.
(Tr. 22).
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
physical deficits.
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

10

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
behavior
and lifelong history of learning problems,
“He denied having symptoms of any other
medical or psychiatric condition that might
interfere
with
his
ability
to
work.”
(Exhibit 8F, p. 3)
Mental
health
treating
reports
denote
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)
On
examination
[at
Alta
Pointe
Health
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
ideation,
normal
perceptions,
unimpaired
memory,
logical,
coherent
and
normal
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
month.
(Exhibits 2F & 13F)
Subsequently
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.
(Exhibit 13F)
Thus, on December 1, 2010,
the
claimant
was
discharged
from
care
considering
“Consumer
only
attended
an

11

intake session at this facility and failed
to
present
for
additional
assessment
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
that
the
claimant
has
the
residual
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
work setting.
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.
Due to
pain and psychological factors, he could be
expected
to
have
some
deficit
in
concentration, persistence or pace, which
would cause him to be off task for a
nonproductive pace for up to 5% of the
workday.
The claimant could be around
coworkers, but should not have to coordinate
with them to complete tasks.

12

. . .
At the hearing, the claimant testified he is
20 years old and he stopped attending school
in 11th grade because he kept getting into
the trouble.
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]
problem
counting
change
involving
“big
money.”
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
tell
him
they
had
any
kind
of
transportation.
He also has never tried to
learn how to drive or obtain a driver’s
license, as well as never had vocational
rehabilitation
because
of
lack
of
transportation.
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
grocery store.
After careful consideration of the evidence,
the undersigned finds that the claimant’s
medically
determinable
impairments
could
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
assessment.
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
towards
improvement.
Notably,
in
a
consultative report dated July 1, 2010, Dr.

13

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)
Additionally, he
“seems to put very little effort into doing
things.
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)
Comparatively,
referenced
test
results
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)
Nevertheless,
Dr.
Adams
concluded
the
claimant had the ability to perform the
demands of simple, unskilled work to the
extent that “David has the ability to
understand,
carry
out
and
remember
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)
At
this time, the consultative examiner, Dr.
John W. Davis, Ph.D., equally questioned
test results and “it is felt that these
results
are
an
underestimation
of
the
claimant’s ability for unknown reasons.
Claimant did not seem to put forth his best
efforts and there are strong efforts of

14

malingering
seen.”
(Exhibit
5F,
p.)
However, the claimant did demonstrate the
ability to make simple change, do simple
arithmetic,
handle
Serial
3’s
without
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
five
minutes, and describe the details of the
trip to this office without difficulty.
(Exhibit 5F)
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
medication
for
attention
deficit
hyperactivity disorder since 2009, as well
as he had not attended outpatient counseling
for any or any other concern since 2009.
(Exhibit 5F)
Therefore,
minimal weight is
given
to
Dr.
Starkey’s
assessment
of
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,
2012
and
failed
to
respond
to
the
therapist’s letter and message on May 24,
2012.
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.”
(Exhibit
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

15

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.”
(sic)
(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
basketball
games
on
television
and
understands how points are scored, but not
penalties.
He can read a grocery list and
write.
He acknowledged plans to enroll in
classes to get his GED as well.
Thus,
based
on
the
conflicting
and
questionable
testing
results
and
his
adaptive functioning, the undersigned finds
the claimant’s intellectual functioning is
best reflected by a diagnosis of borderline
intellectual functioning, as opposed to mild
mental retardation.
As for the opinion evidence, there are no
medical
source
statements
specifically
delineating the claimant as disabled.
Moreover, the undersigned has considered and
gives
significant
deference
to
the
psychological
assessments
of
the
State
agency
medical
consultants
[Dr.
Joanna
Koulianos, Ph.D.] at Exhibits 9F, 10F and
11F.
In
general,
these
assessments
determined the claimant had severe mental
impairments causing mild restriction of
activities
of
daily
living,
moderate
difficulties
in
maintaining
social
functioning,
moderate
difficulties
in
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;
attend
and
concentrate
for
reasonable

16

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.
However,
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.
In
sum,
the
above
residual
functional
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
appeal.
1.

Issues
A. Whether the ALJ erred in failing to
find that Plaintiff met Listing 12.05C?

In

this

case,

Plaintiff

claims

that

the

ALJ

erred

in

failing to discuss Listing 12.05C and in failing to find that he
meets

the

criteria

for

mild

argues that he has satisfied

mental

retardation.

Plaintiff

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

17

mixed

emotion,

oppositional

defiance

disorder,

behavior disorder, and personality disorder.
The

Commissioner

counters

that,

“[b]y

disruptive

(Doc. 15 at 3-4).
declining

to

find

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
criteria

of

12.05C”,

any

error

is

harmless

because

it

is

Plaintiff’s burden to produce evidence showing that he meets a
Listing,

and

the

ALJ’s

evidence. (Id. at 4-6).

decision

is

supported

by

substantial

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
of

proving

impairment.

that

an

impairment

meets

or

equals

a

listed

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)).
8

Section 12.00

“Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11TH CIR. R. 36-2.

18

contains the Listings for mental disorders, which are arranged
in

nine

diagnostic

categories:

“[o]rganic

mental

disorders

(12.02); schizophrenic, paranoid and other psychotic disorders
(12.03);

affective

disorders

(12.04);

intellectual

disability

(12.05); anxiety-related disorders (12.06); somatoform disorders
(12.07);
disorders

personality
(12.09);

disorders

and

(12.08);

autistic

developmental disorders (12.10).”
App. 1, § 12.00(A).

substance

addiction

disorder

and

pervasive

other

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”.

(Tr. 23).

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
of

function.”

12.05C.

20

C.F.R.

Part

404,

Subpart

P,

Appendix

1

§

In addition, the claimant must satisfy the ‘diagnostic

description’ of mental retardation in Listing 12.05 (the listing

19

category for mental retardation/intellectual disability), 9 which
provides

that

mental

subaverage

general

adaptive

retardation

functioning

developmental

intellectual

period;

functioning

initially
i.e.,

“refers

the

to

significantly

with

manifested
evidence

deficits
during

demonstrates

supports onset of the impairment before age 22.”

in
the
or

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).
for

presumptive

Thus, “a claimant meets the criteria

disability

under

section

12.05C

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

a

‘minimal

effect’

on

9

the

claimant’s

ability

to

On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
“intellectual disability.”
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.
Id.
(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.

20

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
the

IQ

score

is

inconsistent

with

record

evidence

of

a

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.
July

2010,

Plaintiff

was

administered

Jennifer Adams, Ph.D. (Tr. 240-243).
scale score of 59.

the

WAIS-IV

by

In
Dr.

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
range.

borderline

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
and

handle

work

pressure,

and

that

he

may

need

managing any financial benefits that he received.

21

assistance

(Id. at 243).

Plaintiff was next administered the WAIS-IV by Dr. John Davis in
August 2010.

(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.

(Id.)

Nearly a year

later, Plaintiff was administered the WAIS-IV by Dr. Kenneth
Starkey,

Psy.D.,

received

a

full

in

June

scale

IQ

2011.
score

(Id.
of

at

66,

298).

placing

Plaintiff
him

“in

the

Extremely Low (Mild Mental Retardation) range of functioning.” 10
(Id. at 298-99).
to

be

“an

Dr. Starkey opined that the IQ scores appeared

accurate
abilities”,

intellectual

estimate
that

of

[Plaintiff’s]

“[f]uture

testing

current
could

be

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
motivated
opined
carry

for

that
out

ability

to

the

evaluation.”

Plaintiff’s

simple
work

(Id.

ability

instructions

to

299-300).

understand,

appeared

independently,

at

with

pressures appeared “marginal” to “poor.”

remember

“marginal,”
others,

He

and

while
with

also
and
his
work

(Id.)

A careful review of the ALJ’s decision reflects that in

10

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).

22

discussing whether Plaintiff’s impairments would be expected to
reasonably

cause

the

alleged

symptoms,

the

ALJ

rejected

Starkey’s diagnosis of mild mental retardation.

Dr.

(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.
ALJ

stated

testing

that

results

“based
and

on

the

Specifically, the

conflicting

[Plaintiff’s]

and

adaptive

questionable

functioning,

the

undersigned finds that the claimant’s intellectual functioning
is

best

reflected

by

a

diagnosis

of

borderline

intellectual

functioning, as opposed to mild mental retardation.”
27).

(Id. at

Given Plaintiff’s full IQ score of 66, and the ALJ’s

finding

that

Plaintiff

has

several

severe

mental

impairments

including adjustment disorder, attention deficit hyperactivity
disorder

and

personality

consider

12.05C

in

disorder,

analyzing

the

Plaintiff’s

ALJ

was

required

to

claim.

Hartman

v.

Colvin, 2014 U.S. Dist. LEXIS 91467, 2014 WL 3058550, *5 (S.D.
Ala.

July

7,

2014)(“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 U.S. Dist. LEXIS 59667,
2014 WL 1744759, *5 (S.D. Ala. Apr. 30, 2014) (finding that the

23

ALJ’s

failure

presumption

to

address

constituted

12.05(C)
error

and

apply

requiring

the

remand

rebuttable
where

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
adaptive functioning.
Soc.

Sec.

Admin.,

For instance, in Perkins v. Commissioner,

553

Fed.

Appx.

870

(llth

Cir.

2014),

the

Eleventh Circuit upheld the ALJ’s finding that Listing 12.05C
was

not

met

where

the

plaintiff

performed

skilled

jobs,

including as a skilled cook, managed other workers and made
contradictory
history.

claims

regarding

his

education

and

employment

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
between

60

and

70,

applied

the

presumption

established

by

Hodges, and found that the presumption was rebutted by other
evidence that showed that the claimant did not have “deficits in
adaptive functioning.”

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,
was

a

high

school

graduate;

prepared

24

simple

meals,

dressed

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
(S.D.

Ala.

plaintiff

Mar.
did

9,

not

2015)
have

(The

ALJ

significant

properly

found

limitations

that

in

the

adaptive

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,
cared

for

history,

her
the

inconsistent

personal
ALJ

with

needs,

properly
the

and

found

record

had

a

that

evidence

significant

her

IQ

regarding

work

score
her

was
daily

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
different

jobs

since

leaving

high

25

school,

was

sufficient

to

support

his

decision

that

the

claimant

was

not

mentally

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
Listing

12.05C

was

supported

by

substantial

evidence

that

demonstrated that the claimant had a high school diploma, was
not

in

special

education

classes,

completed

his

own

social

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
grade.

Additionally,

Plaintiff

does

not

have

a

driver’s

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
is

not

capable

of

managing

his

finances.

After

a

thorough

review of the record, examination of the analysis employed in
similar

cases,

underlying

the

and
ALJ’s

consideration
decision

in

26

of
this

the
case,

various
the

factors

undersigned

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.
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

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
legal framework.
DONE this 16th day of June, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

11

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
disorder,
attention
deficit
hyperactivity
disorder
and
personality disorder. (Tr. 22).

27