Kyles v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff Alexis Kyles's claim for 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 P. Bradley Murray on 7/3/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALEXIS D. KYLES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO. 16-0495-KD-MU

MEMORANDUM OPINION AND ORDER
Plaintiff Alexis D. Kyles 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 (“the Commissioner”) denying her claim for Supplemental Security Income
(“SSI”), based on disability. (Doc. 1). 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. 15 (“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, Kyles’s brief, the Commissioner’s brief, and the arguments of counsel at the

April 26, 2017 hearing before this Court, it is determined that the Commissioner’s
decision denying benefits should be reversed and remanded.1
I. PROCEDURAL HISTORY
Kyles applied for SSI, based on disability, under Title XVI of the Social Security
Act (“the Act”), 42 U.S.C. §§ 1381-1383d, on June 12, 2013. (Tr. 22). Her application
was denied at the initial level of administrative review on August 28, 2013. (Tr. 82-86).
On October 3, 2013, Kyles requested a hearing by an Administrative Law Judge (ALJ).
(Tr. 87). After hearings were held on October 10, 2014, and April 6, 2015, the ALJ
issued an unfavorable decision finding that Kyles was not under a disability from the
date the application was filed through the date of the decision, April 24, 2015. (Tr. 2231). Kyles appealed the ALJ’s decision to the Appeals Council, which denied her
request for review of the ALJ’s decision on August 12, 2016. (Tr. 1-3). After exhausting
her administrative remedies, Kyles sought judicial review in this Court, pursuant to 42
U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The Commissioner filed an answer and the
social security transcript on December 15, 2016. (Docs. 7, 8). After both parties filed
briefs setting forth their respective positions, the Court conducted a hearing on this
matter on April 26, 2017. (Docs. 9, 10). The case is now ripe for decision.
II. CLAIMS ON APPEAL
Kyles alleges that the ALJ’s decision to deny her benefits is in error for the
following reasons:

1
Any appeal taken from this Order and Judgment shall be made to the Eleventh Circuit
Court of Appeals. See Doc. 15 (“An appeal from a judgment entered by a Magistrate
Judge shall be taken directly to the United States Court of Appeals for the judicial circuit
in the same manner as an appeal from any other judgment of this district court.”).

2

1. The ALJ failed to consider whether Kyles’s impairment or combination of impairments
is of a severity to meet or medically equal the criteria of Listing 12.05C; and
2. The ALJ failed to give adequate weight to the opinions of consulting psychologists Dr.
Tocci and Dr. Starkey.
(Doc. 9 at p. 2).
III. BACKGROUND FACTS
Kyles was born on May 17, 1995, and was 18 years old at the time she filed her
claim for benefits. (Tr. 39, 22). Kyles initially alleged disability due to ADHD and anxiety.
(Tr. 70, 211, 245). Kyles graduated from high school and passed a portion of the
Alabama High School Graduation Exam. (Tr. 39). At the time of the initial hearing on
October 10, 2014, she had recently started working at Wal-Mart . (Tr. 39). She started
working as a cashier, but because of attention and focus issues, she was moved to
housekeeping and maintenance. (Tr. 40). On April 6, 2015, the ALJ conducted a
supplemental hearing to determine whether Kyles disability equaled a 5.08 listing due to
potential anorexia. (Tr. 52-53). At that time, Kyles was still working at Wal-Mart
approximately 32 hours per week. (Tr. 54). After conducting these two hearings, the ALJ
made a determination that Kyles was not entitled to benefits. (Tr. 31).
IV. ALJ’S DECISION
After considering all of the evidence, the ALJ made the following relevant findings
in his April 24, 2015, decision:
2. The claimant has the following severe impairments: borderline
intellectual functioning (BIF); learning disorder, not otherwise
specified; and attention-deficit/hyperactivity disorder (ADHD) (20 CFR
416.920(c)).

3

These impairments are based on opinions from acceptable medical sources,
and supported by objective test results or accepted clinical diagnostic
practices. I find that these impairments, either individually or in combination,
impose more than a minimal effect on the claimant's ability to perform basic
work activities. Consequently, they are severe impairments for the purpose of
disability review.
The record does not support the existence of severe physical impairments
(food allergy, acne, anorexia, and low weight), which is consistent with the
assessments provided by the State agency consultants (Exhibits 1A) and the
ME who testified that the claimant's impairments did not meet or equal a
Listing as testimony regarding her ongoing work support inferences that the
impairments are not physically severe. In addition, 20 CFR 416.921; Social
Security Rulings (SSRs) 85-28, 96-3p, and 96-4p define an impairment or
combination of impairments is "not severe" when medical and other evidence
establishes only a slight abnormality or a combination of slight abnormalities
that would have no more than a minimal effect on an individual's ability to
work. I have accorded significant weight to the State agency assessment as
well as the ME, as the evidence received at the hearing level confirms their
findings. The claimant's source of work-related impairment derives from her
mental impairments, as discussed herein.
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1(20 CFR 416.920(d), 416.925 and 416.926).
I find that these impairments, singly or in combination, based upon a review
of the medical evidence, do not meet Listing level severity, and no
acceptable medical source has mentioned findings equivalent in severity to the
criteria of any listed impairment.
The severity of the claimant's mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of listing 12.02. In
making this finding, I have considered whether the "paragraph B" criteria are
satisfied. To satisfy the "paragraph B" criteria, the mental impairments must
result in at least two of the following: marked restriction of activities of daily
living; marked difficulties in maintaining social functioning; marked difficulties
in maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within 1
year, or an average of once every 4 months, each lasting for at least 2 weeks.
In activities of daily living, the claimant has mild restriction. The claimant
testified that she was able to perform household chores. The record further

4

shows the claimant has no problems with tending to all personal needs as well
as preparing simple meals (Exhibits 4E and 3F-4F).
In social functioning, the claimant has moderate difficulties. The claimant
testified that she attends church. In addition, the record shows she
participates in hobbies and interests two to three times a week; spends time
with others once or twice a week; and gets along well with authority figures
(Exhibits 4E and 3F-4F).
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant testified she was able to manage a bank account;
drive a motor vehicle; work; and attend community college. The evidence
also reveals the claimant is able to shop in stores; pay bills; count change; use
a checkbook/money orders; and, she does not need reminders to go places.
However , the record reflects she requires reminders to brush her teeth and
take her medication; and, she has difficulty completing tasks, concentrating ,
and understanding and following instructions (Exhibits 4E and 3F-4F).
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration.
***
Because the claimant's mental impairments do not cause at least two "marked"
limitations or one "marked" limitation and "repeated" episodes of
decompensation each of extended duration, the "paragraph B" criteria are not
satisfied.
I have also considered whether the "paragraph C" criteria are satisfied. In this
case, the evidence fails to establish the presence of the "paragraph C" criteria
because the claimant does not have a medically documented history of a
chronic organic mental disorder or chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and repeated episodes of decompensation, each of
extended duration; or a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the individual to
decompensate; or a current history of 1 or more years' inability to function
outside a highly supportive living arrangement, with an indication of continued
need for such an arrangement, as required by Sections 1 2 . 0 2 C.
***
4. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a full range of
work at all exertional levels but with the following nonexertional

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limitations. She is able to perform simple, routine tasks involving no
more than very simple, short instructions and simple work-related
decisions with minimal and gradual workplace changes. She can
perform work involving no interaction with the public, nontransactional interaction with co-workers and non-transactional
interaction with supervisors. The claimant cannot perform math
calculations. She is able to sustain attention for two-hour periods with
customary breaks.
In making this finding, I have considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 CFR
416.929 and SSRs 96-4p and 96-7p. I have also considered opinion evidence
in accordance with the requirements of 20 CFR 416.927 and SSRs 96-2p, 965p, 96-6p and 06-3p.
***
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant's pain or other symptoms has
been shown, I must evaluate the intensity, persistence, and limiting effects of
the claimant's symptoms to determine the extent to which they limit the
claimant's functioning.
* * *
The totality of the medical evidence does not support any limitations beyond
the scope of the residual functional capacity noted herein. Because a
claimant's symptoms can sometimes suggest a greater level of severity of
impairment than can be shown by the objective medical evidence alone, 20
CFR 416.929(c) describes the kinds of evidence, including the factors below,
that I must consider in addition to the objective medical evidence when
assessing the credibility of the claimant's statements:
1. The claimant's daily activities;
2. The location, duration, frequency, and intensity of the claimant's pain or other
symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
claimant takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the claimant receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment the claimant uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a board); and,

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7. Any other factors concerning the claimant's functional limitations and
restrictions due to pain or other symptoms (SSR 96-7p).
The claimant has testified to a limited range of daily activities and has
generally testified as to the location, duration, frequency and intensity of her
symptoms, as well as to efforts taken to alleviate those symptoms and the
factors that precipitate and aggravate those symptoms. Usually, these factors
would weigh in favor of a finding of disability. However, I find that other factors
outweigh these factors, leading me to conclude the claimant's testimony cannot
be taken as entirely persuasive. Chief among these is that, the record reflects
the treatment the claimant has received has been largely minimal and
conservative in nature. Despite claiming limitations due to her severe mental
impairments , the claimant testified, and the evidence reflects, she currently
works at Wal-Mart; she is able to perform all personal needs and household
chores, independently; as well as drive a motor vehicle. Moreover, she has
only seen her primary provider for medications; and, she has not received any
specialized counseling or cognitive behavioral treatment. Further, although the
claimant testified to cognitive limitations, education records show she was able
to obtain a high school diploma and attend community college courses
thereafter (Exhibits 4E and 3F-4F). At this point, the claimant has described
daily activities that are inconsistent with her allegations of disabling symptoms
and limitations.
After careful consideration of the evidence, I finds [sic] 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 entirely
credible for the reasons explained in this decision.
In terms of the claimant's alleged limitations and/or difficulty caused by her
severe mental impairments, the objective evidence of record shows she is
able to perform unskilled work as defined in the residual functional capacity
herein. Specifically, while education records show the claimant was in general
education classes with an individualized education plan (IEP), she was
observed to be a hardworking student. She completed all assignments with use
of some special services; and, her only weaknesses were in math and reading
that interfered with her achievement in the general education classroom (that
was also reflected on AIMSWEB testing). Otherwise, the claimant passed the
science, English, and history portions of the AHSGE; and, she had no noted
behavior concerns that impeded her learning or the learning of others. In
addition, she had no identified communication needs (Exhibits 9E and lF).
In August 2013, the claimant underwent a consultative psychological
evaluation performed by Nina E. Tocci, Ph.D., MSCP (Exhibit 3F). The
claimant was observed to have good eye contact; a cooperative attitude;
normal speech; appropriate mood and affect; and no noted symptoms of

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attention-deficit. She was oriented; her attention and concentration were fair;
her fund of information and comprehension was poor; her thought content was
appropriate; and, she demonstrated little insight into her behavior. Additionally,
her intelligence appeared to be functioning with in the mentally impaired range
of intellectual ability. The claimant was diagnosed with learning disability, NOS
and assigned a GAF score of 55, signifying only moderate symptoms or
difficulty in social, occupational, or school functioning. Dr. Tocci opined the
claimant's prognosis was poor.
Similarly, in December 2013, Kenneth R. Starkey, Psy.D., performed a
consultative psychological evaluation of the claimant (Exhibit 4F). Upon
evaluation, the claimant's appearance was good; she was alert and oriented;
and, she was able to focus and sustain attention but with mild distraction. Her
speech was clear and coherent; her thinking was rational with evidence of
mild deficits for reasoning and judgment; loosening of associations, tangential
thinking, or racing thoughts were not present; and, there was no evidence of
delusional thoughts or paranoia. WAIS-IV testing showed the claimant achieved
a Verbal Comprehension Index of 78; Perceptual Reasoning Index of 73;
Working Memory Index of 74; Processing Speed of 74; and Full-Scale IQ score
of 70, which placed the claimant at the lower end of the Borderline range of
intellectual functioning. Dr. Starkey diagnosed the claimant with BIF and
assigned her a GAF score of 65, indicative of only mild symptoms or difficulty
in social, occupational, or school functioning. He opined the claimant could
adequately understand, remember, and carry out simple, concrete instructions;
and, her ability to complete basic age-related activities and work
independently appeared adequate. Moreover, close supervision would be
necessary to assure adequate performance of complex tasks; her ability to
work with teachers, supervisors, and peers was adequate; but, her ability to
work with the general public would be marginal. The claimant would also
require assistance for managing benefits.
Furthermore, Dr. Starkey also provided a medical source statement based on
his evaluation. He opined the claimant had no limitations understanding,
remembering, or carrying out simple instructions; or making judgments on
simple work-related decisions. She had only mild limitations understanding,
remembering, or carrying out complex instructions; or making j u dgments on
complex work-related decisions. Additionally, the claimant had no difficulty
interacting appropriately with supervisors and co-workers; and only mild
difficulty interacting appropriately with the public and responding appropriately
to usual work situations and changes in routing [sic] work settings (Exhibit 4F).
In general, for all the treatment records in the claimant's file, the treatment she
has received has been relatively minimal, but helpful. As previously mentioned,
the objective sings [sic] and findings have been nominal in any of the
examinations for the claimant's alleged impairments. The evidence reflects her
symptoms were controlled with medication (Focalin). Additionally, the evidence

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does not reflect the claimant was hospitalized for an extended duration, nor
does she have marked limitations and/or difficulties directly related to her
mental impairments to the extent they significantly affect her activities of daily
living, social functioning, or concentration, persistence, or pace. Overall, the
record simply does not support the allegations of disabling symptoms as
proclaimed by the claimant.
As for the opinion evidence, as previously indicated, the ME testimony and
State agency mental assessments are accorded significant weight as they are
consistent with the overall evidence of record (Exhibit 1A).
The opinion of consultative examiner, Nina E. Tocci, Ph.D., MSCP, is accorded
no weight, as it is inconsistent with the overall evidence of record as well as the
claimant's testimony that reflects she is currently able to perform ongoing work
activities (Exhibit 3F).
Although consultative examiner, Kenneth R. Starkey, Psy.D., performed
thorough standardized testing of the claimant, his overall opinions are not
consistent with the evaluation or the totality of the evidence of record.
Therefore, his opinions merit no substantial weight (Exhibit 4F).
In sum, I conclude that the claimant's impairments are not as severe or limiting
as alleged. Thus, they would not preclude her from performing work within the
parameters of the Residual Functional Capacity noted above on a regular and
sustained basis.
* * *
Based on the testimony of the vocational expert, I conclude that, considering
the claimant's age, education, work experience, and residual functional
capacity, the claimant is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy. A finding of
"not disabled" is therefore appropriate under the framework of section 204.00 in
the Medical-Vocational Guidelines.
(Tr. 24-31).
V. DISCUSSION
A claimant is entitled to an award of SSI benefits if the claimant is unable to
engage in substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or last for a continuous
period of not less than 12 months. See 20 C.F.R. § 416.905(a). The impairment must be

9

severe, making the claimant unable to do the claimant’s previous work or any other
substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2); 20
C.F.R. §§ 404.1505-11. “Substantial gainful activity means work that … [i]nvolves doing
significant and productive physical or mental duties [that] [i]s done (or intended) for pay
or profit.” 20 C.F.R. § 404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation in
determining whether the claimant is disabled:
(1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the severe
impairment meets or equals an impairment in the Listing of Impairment in the
regulations; (4) if not, whether the claimant has the RFC to perform her past
relevant work; and (5) if not, whether, in light of the claimant’s RFC, age,
education and work experience, there are other jobs the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per curiam)
(citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart,
357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the
burden of proving the first four steps, and if the claimant does so, the burden shifts to
the Commissioner to prove the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999).
The reviewing court must determine whether the Commissioner’s decision to
deny benefits was “supported by substantial evidence and based on proper legal
standards.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citations omitted); see 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel, 631 F.3d at 1178 (citations omitted). “In determining
whether substantial evidence exists, [the reviewing court] must view the record as a

10

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). The
reviewing court “may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [Commissioner].” Id. When a decision is supported by
substantial evidence, the reviewing court must affirm “[e]ven if [the court] find[s] that the
evidence preponderates against the Secretary’s decision.” MacGregor v. Bowen, 786
F.2d 1050, 1053 (11th Cir. 1986).
As set forth above, Kyles has asserted two reasons why the Commissioner’s
decision to deny her benefits is in error. Based on the finding below that the first
asserted error requires remand to the Commissioner, the Court pretermits its discussion
of the remaining issue.
Kyles asserts that the ALJ’s failure to specifically consider whether her
impairment or combination of impairments is of a severity to meet or medically equal the
criteria of Listing 12.05C was in error because it is not supported by substantial
evidence. The ALJ found that Kyles had the following severe impairments: borderline
intellectual functioning, learning disorder NOS, and ADHD. (Tr. 24). The ALJ stated in
his decision that these impairments did not equal the severity necessary to meet the
criteria of any listed impairment. (Tr. 25). He then specifically evaluated Kyles under
Listing 12.02. He did not evaluate Kyles under Listing 12.05. The Commissioner argues
that Kyles failed to carry her burden of establishing disability under 12.05 and that
substantial evidence supported the ALJ’s finding that Kyles was not disabled under the
Listings.

11

On November 14, 2013, Kyles’s attorney sent a letter, which is part of the record,
to the Mobile office of Disability, Adjudication & Review stating that during her
consultative examination on August 14, 2013 with Dr. Tocci she “was found to be
functioning within the mentally impaired range of intellectual ability.” (Tr. 269). In the
letter, her attorney requested a consultative examination be scheduled for an IQ test
and stated that they believed “an IQ test may show that [Kyles] reaches a 12.05 listing.”
(Id.). Thereafter, Kyles was sent to Dr. Starkey for IQ testing. (Tr. 336). She scored a
valid full-scale IQ of 70 on the WAIS-IV that was administered by Dr. Starkey in
December of 2013. (Tr. 338). Kyles asserts that this score was supported by
consultative examinations and reports of Dr. Starkey and Dr. Tocci. (Tr. 328-30, 33340). At the hearing before the ALJ, her attorney stated: “[Dr. Starkey] indicated that Ms.
Kyles has a full-scale IQ of 70. He also notes that she would have a marginal ability to
deal with the general public and pressures common to work settings, most likely as a
result of her ADHD and verbal or full-scale IQ score. Based on that Your Honor, I think
that she would be unable to sustain gainful employment.” Although her counsel did not
specifically mention 12.05 or the terms “mental retardation” or “intellectual disability” at
either hearing, Kyles asserts that the issue was clearly raised in the November 14, 2013
letter and by her attorney’s statement at the hearing.
In noted above, evidence was presented that Kyles, who is under the age of 22,
has a full scale IQ of 70 and has a diagnoses of ADHD, which the ALJ found to be a
severe impairment; however, the ALJ did not mention Listing 12.05 at the hearing nor
did he specifically mention, address, or analyze Listing 12.05 in his Decision. (Tr. 22-

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31). The question presented is whether the ALJ erred by failing to address or analyze
whether Kyles can meet the requirements of Listing 12.05C.
The Listings describe certain medical findings and other criteria that are
considered so extreme as to be presumptively disabling. See 20 C.F.R §§ 404.1525,
416.925. To establish disability under a Listing, a claimant must have a diagnosis
included in the Listing and must provide medical reports documenting that her condition
satisfies the specific criteria of the listed impairment. See Wilson v. Barnhart, 284 F.3d
1219, 1224 (11th Cir. 2002); 20 C.F.R. §§ 404.1525(a-d), 416.925(a-d). “For a claimant
to show that his impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.”
https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1990037731
&pubNum=0000708&originatingDoc=Ia423ade0ef2c11e692ccd0392c3f85a3&refType=RP
&fi=co_pp_sp_708_891&originationContext=document&transitionType=DocumentItem&co
ntextData=%28sc.Search%29
 -­‐
 co_pp_sp_708_891Sullivan v. Zebley, 493 U.S. 521, 530
(11th Cir. 1990).
To “meet” Listing 12.05, the claimant must satisfy the diagnostic description in
the introductory paragraph and one of four sets of diagnostic criteria found in
paragraphs A, B, C, or D. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A). Listing 12.05's
introductory paragraph requires the claimant to have: (1) significantly subaverage
general intellectual functioning; (2) deficits in adaptive behavior; and (3) an onset of
impairment before age 22. Id. at § 12.05. Although adaptive functioning is not defined
in the regulations, the Eleventh Circuit has favorably cited the description of adaptive

13

functioning in the Social Security Administration's Program Operations Manual System
(“POMS”) as “‘the individual's progress in acquiring mental, academic, social and
personal skills as compared with other unimpaired individuals of his/her same age,’” as
well as the statement in the American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders that adaptive functioning means “‘how well a person meets
standards of personal independence and social responsibility, in comparison to others
of similar age and sociocultural background. Adaptive functioning involves adaptive
reasoning in three domains: conceptual, social, and practical.’” Schrader v. Acting
Comm'r of the Soc. Sec. Admin., 632 F. App’x 572, 576 & n. 3-4 (11th Cir. 2015)
(quoting Soc. Sec. Admin., Program Operations Manual System, DI 24515.056(D)(2)
(2012) and DSM-V 37 (5th ed. 2013)).
If the claimant satisfies the three requirements in the introductory paragraph, the
claimant must then satisfy one of the four criteria listed in 12.05A through 12.05D. The
Listing relevant here is 12.05C. Under Listing 12.05C, the claimant must show both a
“valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant work-related limitation of
function.” Id. at § 12.05(C). Paragraph C requires an IQ score within a certain range that
is valid. The Social Security Administration has noted that standardized intelligence
tests can assist in verifying the presence of intellectual disability, but form only part of
the overall assessment and should be considered in conjunction with developmental
history and functional limitations. Id. at § 12.05(D)(6)(a). There is, however, “a
rebuttable presumption that a claimant manifested deficits in adaptive functioning before
the age of 22 if the claimant established a valid IQ score between 60–70.” Grant v.

14

Astrue, 255 F. App’x 374, 375 (11th Cir. 2007) (citing Hodges v. Barnhart, 276 F.3d
1265, 1266, 1268-69 (11th Cir. 2001)). The Court notes that an ALJ may find, for
purposes of Listing 12.05, that the results of an IQ test are not valid, and therefore do
not raise the presumption, where the test results are inconsistent with the medical
record or the claimant's daily activities and behavior. Popp v. Heckler, 779 F.2d 1497,
1499–1500 (11th Cir. 1986); see also Nichols v. Comm’r, Soc. Sec. Admin., No. 1611334, 2017 WL 526038, *3-4 (11th Cir. Feb. 8, 2017) (holding that the ALJ did not err
in finding claimant’s IQ score of 59 invalid where her range of activities and
accomplishments, including reading and understanding English, having a driver’s
license, completing high school with a certificate, having a history of some unskilled
work, raising two children, and handling money, were inconsistent with the IQ results).
Kyles relies on her full scale IQ score of 70 to support her claim that she was
disabled under 12.05C. As discussed above, “[a] valid IQ score of 60 to 70 satisfies the
first prong of paragraph C and creates a rebuttable presumption that the claimant
satisfies the diagnostic criteria for intellectual disability.” Frame v. Comm’r, Soc. Sec.
Admin., 596 F. App’x 908, 911 (11th Cir. 2015). “Presumptive disability pursuant to
Listing 12.05C is rebuttable, however, and the Commissioner is charged with
determining whether there is sufficient evidence to rebut the presumption.” Tubbs v.
Berryhill, Civ. A. No. 15-00597-B, 2017 WL 1135234, at * 4 (S.D. Ala. Mar. 27, 2017).
The Eleventh Circuit has held that an ALJ is not required to explicitly discuss a
listing if it can be implied from the ALJ’s decision that the claimant did not meet the
listing in question and that finding is supported by substantial evidence. See James v.
Comm’r, Soc. Sec. Admin., 657 F. App’x 835, 838 (11th Cir. 2016) (holding that,

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although ALJ never discussed 12.05, finding that claimant lacked adaptive deficits was
implied from ALJ’s conclusion that claimant’s prior work experience for fifteen years in
semi-skilled jobs indicated that she did not have an intellectual disability); Rodriguez v.
Comm’r of Soc. Sec., 633 F. App’x 770, 774 (11th Cir. 2015) (finding that ALJ implicitly
concluded that claimant did not have deficits in adaptive functioning where the
substantial evidence showed that claimant attended mainstream high-school classes
through the eleventh grade without any specialized educational assistance, assisted his
wife with household chores such as cooking and laundry, did the grocery shopping for
his household, attended church twice a week, had a driver’s license, and had a work
history for many years including jobs at the skilled and semi-skilled level). However,
unlike the claimants in those cases, Kyles does not have a lengthy work history in semiskilled work, has not shown the ability to perform semi-skilled work, and the evidence in
the record is mixed concerning her level of functioning.
At the time Kyles filed her claim for benefits she was eighteen years old and had
never worked. (Tr. 70-71). She obtained a high school diploma and passed a portion of
the high school exit exam.2 (Tr. 39). During school, Kyles was in special education
classes and received extra help in just about all of her subjects, homework help, and
testing accommodations. (Tr. 41-42). Contrary to the ALJ’s finding, she testified that she
did not attend community college.3 (Tr. 42). In September of 2104, she was hired to

2
The record is confusing regarding which portions of the exit exam Kyles passed. In the
Decision, the ALJ states that she passed three portions – Science, English, and History,
while Kyles’s testimony is that she did not pass those three subjects. (Tr. 28, 39).
3
The ALJ’s mistaken finding that she “attended community college courses” after high
school was one of the factors on which he relied in finding that factors supporting
disability were outweighed by other factors. (Tr. 27). The evidence he cited did not
mention community college.

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work at Wal-Mart as a cashier. (Tr. 39-40). Her time as a cashier was brief, about two
weeks, because she was having difficulty focusing on transactions with customers and
making change. (Tr. 40). She then started doing “housework” at Wal-Mart, like “cleaning
bathrooms and stuff.” (Id.). On the days she works, she usually works about five to six
hours, with a fifteen minute break every two hours. (Id.). She testified that it takes her
longer to complete her job duties than other people and that she has to work extra time
to complete her job duties. (Tr. 44). She has a difficult time focusing on more than one
task at a time and becomes frustrated with changes in her tasks or in the workplace.
(Tr. 57-58). The ALJ found that this “work activity [does] not rise to the level of
substantial gainful activity.” (Tr. 24).
Kyles does not live alone; she lives with her mother and sister. (Tr. 40). She
does simple household tasks, has a checking account, has a driver’s license, drives to
work, and goes to church about once a month, usually with her mother, but sometimes
alone. (Tr. 40-41). She does minimal cooking. (Tr. 255). She has difficulty managing her
time and knowing when she needs to get up to do her activities. (Tr. 60). Her mother
has to remind her to brush her teeth and to take her medicine. (Tr. 255).
Kyles was evaluated on August 14, 2013, at the beginning of her senior year in
high school, by psychologist Nina E. Tocci. (Tr. 328). Her mother attended and assisted
Kyles during the evaluation. (Id.). Kyles demonstrated fair attention and concentration, a
poor fund of information and comprehension, little insight into her behavior, and
rudimentary social judgment. (Id.). For example, she did not know the number of days in
a year (“7”), the number of dimes in a dollar (“6”), the direction of the sunrise (“North”),
the animal from which wool comes (“mammals” (RQ) “cheetahs”), the number of items

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in a dozen (“10”), or how to count serial threes backwards or serial fours forwards. (Id.).
A review of her IEP by Dr. Tocci revealed that Kyles was functioning well below average
in Reading, Math, and Language skills and had scored below the 25th percentile in
Math and Reading on her most recent attempt at the high school exit exam. (Tr. 330).
Dr. Tocci opined that Kyles appeared “to be functioning within the mentally impaired
range of intellectual disability.” (Id.).
Kyles was also evaluated by psychologist Kenneth R. Starkey on December 9,
2013. (Tr. 336). Dr. Starkey administered the Weschler Adult Intelligence Scale, Fourth
Edition (WAIS-IV), on which Kyles had a full scale IQ score of 70, which placed her in
the 2nd percentile and, according to Dr. Starkey, at the lower end of the borderline
range of intellectual functioning. (Tr. 338). Based on his evaluation, Dr. Starkey opined
that Kyles “ability to understand, remember, and carry out simple/concrete instructions
appears adequate (although she would likely have difficulty with more complex
instructions or those requiring other than basic literacy and computational skills).” (Tr.
339). He also opined that “[h]er ability to work with teachers/supervisors and
peers/coworkers also appears adequate … [but] [h]er ability to work with the general
public and with pressures common to most every day work settings appears marginal
(at the present time).” (Tr. 340).
Taking into account the foregoing record evidence, this case falls in line with
those cases finding reversal and remand appropriate when the ALJ did not analyze the
claim under 12.05 when presented with an IQ score that fell within the stated range.
See, e.g., Tubbs, 2017 WL 1135234, at * 5-6 (reversing and remanding because it was
“unclear from the record that the ALJ conducted the proper analysis under Listing

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12.05C” where the claimant scored full scale scores of 64 and 66 on IQ tests, was in
special education classes from seventh grade through graduation, and had worked as a
cook/dishwasher and as a scaler in a chicken plant for time periods spanning several
months to a few years); Hartman v. Colvin, No. CA 13-00005-C, 2014 WL 3058550, * 68 (S.D. Ala. July 7, 2014) (reversing and remanding where the ALJ failed to discuss
Listing 12.05C, and it was far from clear that, if the ALJ had applied the correct
standard, her findings regarding the claimant’s adaptive functioning skills would support
the determination that the claimant did not meet 12.05C where the evidence showed
that claimant had a high school GPA of 3.18 and a class rank of 31 of 193, but was in
special education classes and received a high school certificate of attendance in lieu of
a diploma, that she had performed two jobs – clothes presser and hamburger
assembler – but not at substantial gainful activity levels, that she lived with her mother
and her children (of whom the mother had custody), and that she was able to cook,
clean, shop, handle finances and drive, although it took seven attempts to get her
license); Hogue v. Colvin, Civ. A. No. 2:13-00375-N, 2014 WL 1744759, * 16 (S.D. Ala.
Apr. 30, 2014) (reversed and remanded for consideration of Listing 12.05C where the
ALJ did not address whether the evidence was sufficient to rebut the presumption of
disability where the evidence showed that claimant had friends and a girlfriend, had
worked as a lifeguard, shopped and knew how to handle money, knew how to prepare
meals and do household chores, took care of his son, played video games, used
Facebook, “was a well spoken young man,” had a driver’s license, and dropped out of
school during his second attempt at seventh grade); Frank v. Astrue, No. CA 2:1100215-C, 2011 WL 6111692, * 4 (S.D. Ala. Dec. 8, 2011) (finding that it was “clearly

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error to not consider Listing 12.05(C) and, given the evidence before the ALJ, [to not]
find that a claimant is presumptively disabled,” where the evidence showed that
claimant was the primary caregiver for her children, that she had past work as an office
cleaner and fast food worker, and that she was in special education classes and failed
to graduate).
The record is certainly not clear that the presumption of deficits in adaptive
functioning, to which Kyles is entitled, is rebutted by the evidence of record. This Court,
mindful of the limits of its review, declines to make such a determination when such a
determination is within the purview of the ALJ. Accordingly, for the reasons set forth
herein, the Court finds that this case should be remanded so that the Commissioner can
specifically consider whether Kyles’s intellectual deficit meets or equals the 12.05C
Listing.
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff Alexis Kyles’s claim for benefits be REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes 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 (1993), and
terminates this Court’s jurisdiction over this matter.
DONE this the 3rd day of July, 2017.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE

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