Croom v. Colvin
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 3/31/2016. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claim for a period of disability, disability insurance benefits, and supplemental security
income. 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. (Docs. 19 & 21
(“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 postjudgment proceedings.”).) Upon consideration of the administrative record, plaintiff’s
brief, the Commissioner’s brief, and the arguments of counsel at the October 5, 2015
hearing before the Court, it is determined that the Commissioner’s decision denying
benefits should be reversed and remanded for further proceedings not inconsistent with
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 21 (“An appeal from a
Plaintiff alleges disability due to mild mental retardation, carpal tunnel
syndrome/tendonitis of the right hand, migraine headaches, diabetes mellitus, and
glaucoma. The Administrative Law Judge (ALJ) made the following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.
The claimant has not engaged in substantial gainful activity since
January 10, 2011, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: tendonitis of
the right hand, migraine headaches, diabetes mellitus, type II, learning
disorder and glaucoma (20 CFR 404.1520(c) and 416.920(c)).
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
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
Under the third step, a determination must be made as to whether or not
the impairment or impairments are of listing severity. The Medical
Listings (20 C.F.R. Part 404, Appendix 1, Subpart P) outline the findings
which must be present under each of the body systems for an impairment
to be found disabling. No medical expert has concluded that the
claimant’s impairments meet or equal a listed impairment.
The severity of the claimant’s mental impairment does not meet or
medically equal the criteria of listing . . . 12.05 for mental retardation. In
making this finding, the undersigned has considered whether the
“paragraph B” criteria are satisfied. To satisfy the “paragraph B” criteria,
the mental impairment 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
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.”))
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
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except
that the claimant has no limitations to sitting, standing, walking, lifting,
carrying, climbing, crawling, squatting, handling objects, using hand
and foot controls, talking, listening and traveling. The claimant has no
deficits in the ability to remember, understand and carry out simple
tasks. She has no deficits in the ability to respond appropriately to
supervisors, the public or in the ability to manage routine stressors in a
work setting. The claimant has marked limitations in the ability to
understand detailed or complex instructions, carry out detailed or
complex instructions, remember detailed or complex instructions and
use judgment in detailed or complex work-related decisions.
Ms. Croom testified she has never had a checking account. She has a
driver’s license but took the oral test two times before she passed.
Educational records were submitted from the Amelia Love Johnson High
School. Report card for the first semester of 2005 when the claimant was in
twelfth grade indicated 74 in English; 79 in Geometry-B; 91 in
Government; 70 in applied chemistry; 92 in money dynamics; 100 in
physical education and 80 in AHSGE social studies.
Third party function report was completed in November 2011 by Loretta
Cox, the claimant’s sister. . . . Ms. Cox accompanies her when she needs to
go out because Ms. Croom cannot read too well. . . . She identified
problems as  memory, concentration, understanding, following
directions and using hands. . . . She noted memory problems and does not
understand what you have asked. She is not able to follow instructions too
well . . . . She is not able to pay attention very long and is not able to finish
what she starts. She cannot follow written or spoken directions very well
because she is not able to read or understand. She does not get along with
authority figures very well because she cannot follow directions.
Ms. Croom completed a Function Report—Adult in November 2011. On
this form, she stated she lives in a house with her family. . . . She
sometimes needs reminders to take care of her personal needs like
combing her hair and putting on clothes. She does not need reminders to
take her medicine. She does not prepare meals and does not perform
household chores or yard work because of the pain in her hands. She does
not go out often [but] is able to ride in a car. She is able to go out alone.
The claimant does not drive because her hands would not let her steer
well and they hurt. She is able to shop in stores for personal needs but
does not go very often. She is not able to pay bills, count change, handle a
savings account or use a checkbook/money order. Her sister pays the
bills. . . . She listed hobbies as watching television and reading sometimes.
She does these hobbies all the time but mostly watches television. . . . She
spends time with others just sitting around, laughing and talking but she
does not do these activities very often. On a regular basis, she takes her
baby to the doctor, goes to church and goes to the grocery store when
accompanied by a relative/friend. She does not go out often and does not
take part in anything. When she goes out, she needs to be accompanied.
Ms. Croom does not have any problems getting along with others. She
identified problems as lifting, completing tasks and using her hands. . . .
She cannot pay attention very long and does not always finish what she
starts. She does not follow written or spoken instructions very well. She
has never been fired or laid off from a job because of not getting along
with others. She does not handle stress or changes in a routine very well.
The claimant has alleged an onset date of January 20, 2011. In connection
with a prior application, Ms. Croom underwent a consultative mental
health evaluation performed by Dr. Nina Tocci, licensed psychologist[,] on
June 7, 2011. The diagnostic impressions were no diagnosis for Axis I and
II and she was assigned a Global Assessment of Functioning of 85
indicating minimal symptoms and good functioning in all areas. Dr. Tocci
administered the WAIS-III IQ test and the claimant obtained a full scale IQ
score of 65. Dr. Tocci opined the scores were not valid and Ms. Croom’s
effort appeared to wane after initial subtests. The examiner stated the
claimant performed the sample items flawlessly and then after the second
or third items, she was not successful at any items. Dr. Tocci noted poor
effort and stated the scores were not consistent with previous results of
testing. She noted previous scores were extremely low and questionable.
She noted the claimant did not appear to be invested in giving her best
performance. Dr. Tocci suggested the claimant would benefit from
vocational training and employment.
At the request of the Office of Disability Determinations, a consultative
psychological evaluation was conducted by Dr. Richard Reynolds on
November 22, 2011. Dr. Reynolds opined the claimant was malingering
during the interview and had a learning disability, provisional by history.
Axis II was mild mental retardation, provisional. The claimant was
administered the Wechsler Adult Intelligence Scale—Fourth Edition and
obtained a full-scale IQ score of 55. Dr. Reynolds opined it was very
difficult for him to reconcile an IQ score of 55 on the WISC-IV with an
individual who has obtained a driver’s license, even through oral means.
It was difficult for him to understand how an individual with an IQ of 55
would have a significant work history of five years. It was difficult for him
to understand how an individual with an IQ of 55 would pass the exit
examination in social studies. There was some documentation regarding
significant discrepancy among reasoning areas on IQ subtests, particularly
on a unit examination. It is not noted on the transcript, which classes were
special education classes or if the claimant received modifications for all
classes. He opined the most likely diagnosis was learning disorder, not
otherwise specified[,] with likely borderline to mild range of intellectual
deficiency. Poor effort and inconsistencies on statements were noted on
several evaluations. On the administration that day, Ms. Croom continued
to demonstrate poor effort and he opined the current test results were not
considered valid due to poor effort. He also noted that Ms. Croom did not
allege intellectual deficiency and stated her disability was related to carpal
tunnel syndrome and migraine headaches. Dr. Reynolds opined that the
claimant was likely to demonstrate no deficits in the . . . ability to
remember, understand and carry out simple tasks. She does not have any
deficits in the ability to respond appropriately to supervisors, the public or
the ability to manage routine stressors in a work setting. He based his
opinion on prior work history and school history.
The claimant’s attorney, Mr. Coplin[,] referred the claimant for a mental
evaluation to include WAIS IV and WRAT III. Dr. Donald Blanton,
licensed professional counselor, performed the evaluation on February 13,
2013. On the Wechsler Adult Intelligence Scale—Fourth Edition, Ms.
Croom obtained a full scale IQ score of 65 placing her in the mild range of
mental retardation. He summarized that academic achievement testing
revealed that her academic skills would be of little use to her in a
vocational setting. Both her intellectual and academic testing appeared to
be valid. He noted the claimant appeared to have chronic pain but was
emotionally healthy at this point in her life. Dr. Blanton diagnosed mild
mental retardation, pain disorder without psychological features and
financial problems. He offered a Global Assessment of Functioning of 60
indicating only moderate symptoms. Dr. Blanton opined the claimant had
marked limitations in the ability to understand detailed or complex
instructions, carry out detailed or complex instructions, remember
detailed or complex instructions and use judgment in detailed or complex
work-related decisions. She had functional adaptation problems in the
areas of communication, work and functional academic skills.
DDS mental health consultant, Dr. Joanna Koulianos found that the
claimant’s allegations were only partially credible. She noted the claimant
was able to understand, remember and carry out short and simple
instructions and could concentrate and attend for reasonable periods of
time. She noted contact with the general public should be limited and
changes in work duties should be limited and introduced gradually. I
agree in part with the assessment of the DDS mental health expert but
instead ha[ve] assigned greater weight to the opinions of the consultative
examiners, Drs. Reynolds and Tocci.
With regard to the claimant’s mental limitations, I find that the claimant
has a history of special education classes with IEP stating weaknesses in
math and reading. Report card submitted from the Amelia Love Johnson
High School indicated the claimant was taking Geometry, Applied
Chemistry, Biology, US History and Applied Biology all with passing
grades. I find it most unusual for an individual to be taking such
accelerated classes with a learning disability.
In terms of the claimant’s mental limitations, I have accepted the
assessments of Drs. Reynolds at Exhibit 6F and Dr. Blanton at Exhibit 17F.
Dr. Reynolds found that the claimant was malingering during the
interview and the results of testing were invalid. He noted Ms. Croom
demonstrated poor effort on testing. Dr. Reynolds diagnosed history of
learning disorder and I agree with this assessment. He opined the
claimant was likely to demonstrate no deficits in the ability to remember,
understand and carry out simple tasks. She does not have any deficits in
the ability to respond appropriately to supervisors, the public or in the
ability to manage routine stressors in a work setting. He based his opinion
on prior work history and school history. Dr. Blanton diagnosed mild
mental retardation and opined that the claimant had marked limitations
in the ability to understand detailed or complex instructions, carry out
detailed or complex instructions, remember detailed or complex
instructions and use judgment in detailed or complex work-related
decisions. I have accepted the assessment of Dr. Blanton and found that
the claimant could perform no more than unskilled work activity.
The claimant was evaluated in June of 2011 by Dr. Nina Tocci in
connection with a prior application; however, it is after the alleged onset
of disability. Dr. Tocci offered no diagnoses and assigned a GAF of 85
indicating only minimal symptoms and good functioning in all areas. Dr.
Tocci opined the scores obtained on the WAIS-II[I] were not valid as Ms.
Croom’s effort appeared to wane after initial subtests. She stated the
claimant did not appear to be giving her best performance. I find that the
assessment of Dr. Tocci further confirms the conclusions of Dr. Reynolds
as discussed above.
Dr. Blanton found that the claimant had a valid IQ score of 65 placing her
in the range of mild mental retardation. The diagnostic description of
mental retardation reads, “mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period[,] i.e.,
the evidence demonstrates or supports onset of the impairment before age
22.” It is noted that the full scale IQ of 65 would satisfy the first element in
the introductory paragraph. However, element two then requires deficits
in adaptive functioning, which is met as long as there are significant
limitations in at least two of the following areas: communication, self-care,
home living, social/interpersonal skills, work, leisure, health and safety.
The evidence supports that the claimant had deficits in only functional
academics as educational records reported problems with math and
reading. However, it is also noted that the claimant was taking Geometry,
Applied Chemistry, Biology, US History and Applied Biology all with
passing grades. Relevant to the other areas of adaptive functioning, the
record shows that the claimant was able to successfully work for over five
years. I find that the record fails to demonstrate the deficits in adaptive
functioning as required by the core elements of mental retardation.
In sum, the above residual functional capacity assessment is supported by
medical evidence of record. I find that the claimant has severe
impairments, but find that these impairments do not rise to the severity to
The claimant is capable of performing past relevant work as a
hand packer. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).
The claimant has not been under a disability, as defined in the
Social Security Act, from January 10, 2011, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).
(Tr. 13-14, 14, 15, 16, 16-17, 17, 17-18, 18, 18-19, 20-21, 22-23 & 23 (internal citations
omitted; emphasis in original).) The Appeals Council affirmed the ALJ’s decision (Tr. 13) and, thus, the hearing decision became the final decision of the Commissioner of
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (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
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform h[is] 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. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2 (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, at the fourth step, of proving that she is unable to perform her previous work.
Jones v. Bowen, 810 F.2d 1001 (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. at 1005. Once the
claimant establishes that she cannot perform her past relevant work, it becomes the
Commissioner’s burden to prove that the claimant is capable, given his age, education
and work history, of engaging in another kind of substantial gainful employment,
which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform her past relevant
work as a hand packer, is supported by substantial evidence. Substantial evidence is
defined as more than a scintilla and means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial evidence exists,
we 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).3 Courts are precluded, however, from “deciding the facts anew or reweighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1,
2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And,
“’[e]ven if the evidence preponderates against the Commissioner’s findings, [a court]
must affirm if the decision reached is supported by substantial evidence.’” Id. (quoting
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Croom contends that the ALJ erred in rejecting the
diagnosis of mental retardation and, in doing so, failed to provide a discussion to
support the assertion that she did not manifest adaptive deficits, and additionally
argues that the ALJ erred in finding that she does not meet Listing 12.05C. (Doc. 12, at 1;
see also id. at 6-13.) Thus, given the nature of plaintiff’s arguments, this case is solely a
step three case. See 20 C.F.R. §§ 404.1520(d) & 416.920(d) (“If you have an impairment(s)
which meets the duration requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age, education, and
In this circuit, Croom bears the burden of proving that she has an impairment
which meets or is medically equivalent to a listed impairment. Frame v. Commissioner,
Social Security Administration, 596 Fed.Appx. 908, 910 (11th Cir. Jan. 13, 2015) (“To
prevail at step three, the claimant must provide specific evidence—such as medical
signs, symptoms, or laboratory-test results—showing that her impairment meets or
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
medically equals a listed impairment. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885,
891 (1990). ‘For a claimant to show that h[er] 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.’”). Once an impairment is shown to
meet or medically equal a listed impairment, a claimant is “conclusively presumed to be
disabled based on . . . her medical condition.” Crayton v. Callahan, 120 F.3d 1217, 1219
(11th Cir. 1997).
To establish presumptive disability under §12.05C, a claimant must present
evidence of "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing additional and significant work-related
limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05C. In addition, while
plaintiff must “also satisfy the ‘diagnostic description’ of mental retardation in Listing
12.05[,]”Cooper v. Commissioner of Social Security, 217 Fed.Appx. 450, 452, 2007 WL
543059, *1 (6th Cir. Feb. 15, 2007), citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001),
the law in this circuit is clear that where, as here, a claimant has presented a valid IQ
score of 60 to 70, she is entitled to the presumption that she manifested deficits in
adaptive functioning before the age of 22, Hodges v. Barnhart, 276 F.3d 1265, 1266 &
1268-1269 (11th Cir. 2001).4 Indeed, the Eleventh Circuit has concisely set forth what a
claimant must prove in order to establish that she meets Listing 12.05 (“intellectual
This presumption is rebuttable, the Commissioner being charged with the task of
determining whether there is sufficient evidence (relating to plaintiff’s daily life) to rebut the
presumption. Grant v. Astrue, 255 Fed.Appx. 374, 375 (11th Cir. Nov. 13, 2007).
disability”5), and more specifically Listing 12.05C, in a recent, albeit unpublished,
decision. See Frame, supra, 596 Fed.Appx. at 910-911.
To meet listing 12.05 . . ., “a claimant must at least (1) have
significantly subaverage general intellectual functioning; (2) have deficits
in adaptive behavior; and (3) have manifested deficits in adaptive
behavior before age 22.” Crayton, 120 F.3d at 1219.6 These requirements are
referred to as the listing’s “diagnostic criteria.” See 20 C.F.R. pt. 404, subpt.
P, app. 1, § 12.00 (“Listing 12.05 contains an introductory paragraph with
the diagnostic description for [intellectual disability].”) In addition to
satisfying the diagnostic criteria, a claimant must meet one of the four
severity requirements in paragraphs A through D of the listing. See id. §
12.05. Under paragraph C, the only paragraph at issue here, a claimant
must show that she has 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.”
“Effective September 3, 2013, the Social Security Administration replaced the
term mental retardation with the term intellectual disability as a listed impairment. This change
was made because ‘the term “mental retardation” has negative connotations,’ and ‘has become
offensive to many people.’ But this change ‘d[id] not affect the actual medical definition of the
disorder or available programs or services.’” Frame, supra, 596 Fed.Appx. at 910 (internal
citations omitted). Because the ALJ’s decision issued before the change took effect (Tr. 24
(decision issued on May 3, 2013)), and the parties have made use of the old terminology, this
Court will likewise utilize the old terminology. See Hickel v. Commissioner of Social Security, 539
Fed.Appx. 980, 982 n.2 (11th Cir. Oct. 28, 2013) (“Because the amendment does not effect a
substantive change, and to avoid confusion, this opinion uses the term ‘mental retardation’ used
by the parties and the ALJ.”).
“Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. “’Adaptive functioning’ refers to a person’s ability to
perform activities of daily living and social functioning.” Fischer v. Barnhart, 129 Fed.Appx. 297,
301-302, 2005 WL 352451, *4 (7th Cir. Feb. 11, 2005) (citation omitted); see also Hickel, supra, 539
Fed.Appx. at 983 n.4 (“The Social Security Administration’s Program Operations Manual
System  states that the phrase ‘adaptive functioning’ refers to ‘the individual’s progress in
acquiring mental, academic, social and personal skills as compared with other unimpaired
individuals of his/her same age.’ Similarly, the American Psychiatric Association states that the
phrase refers to how effectively an individual copes with the common demands of life and how
well the individual meets the standards for personal independence of someone in her particular
age group, sociocultural background, and community setting.” (internal citations omitted));
Harper v. Colvin, 2014 WL 3733119, *6 (N.D. Ala. Jul. 25, 2014) (“’[A]daptive activities’ include
‘cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a
residence, caring appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.’”).
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. See Hodges v. Barnhart, 276
F.3d 1265, 1268-69 (11th Cir. 2001). At the same time, it is well established
that such a presumption does not arise where a qualifying IQ score is
inconsistent with other record evidence concerning her daily activities and
behavior. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citing Popp
v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)). But once the ALJ accepts
an IQ sore as valid and finds that the claimant’s impairments meet or
medically equal the other criteria of listing 12.05C, the disability
determination cannot be based on the claimant’s age, education, or work
In sum, a claimant proves that she meets listing 12.05C by
establishing the diagnostic criteria for intellectual disability, including
deficits in adaptive functioning7; showing onset before age 22; producing a
valid, qualifying IQ score; and exhibiting the requisite deficits in workrelated functioning.
Id. (footnote added); see also Lackey v. Colvin, 2014 WL 1338104, *12 (N.D. Ala. Mar. 28,
2014) (“[W]here the claimant relies on 12.05(C), the claimant must meet the three
diagnostic requirements in the introductory paragraph and also meet the requirements
set forth in (C).” (emphasis in original)).
With these general principles in mind, the Court considers the alleged errors
made by the ALJ in this case, that is, whether the ALJ erred in “rejecting” the diagnosis
of mild mental retardation, and in so doing failed to provide a discussion to support his
assertion that she did not manifest adaptive deficits, and the additional argument that
the ALJ erred in finding that she does not meet Listing 12.05C. This Court finds it
unnecessary to address the penultimate issue of whether plaintiff meets 12.05C because
it is clear that the ALJ’s 12.05 analysis was deficient and it is left for the Commissioner
“’The essential feature of Mental Retardation is significantly subaverage general
intellectual functioning that is accompanied by significant limitations in adaptive functioning in
at least two of the following areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work, leisure,
health, and safety.’” Tabor v. Astrue, 2012 WL 1020432, *7 n.29 (N.D. Fla. Feb. 22, 2012) (quoting
DSM-IV at 40), report and recommendation adopted, 2012 WL 1059089 (N.D. Fla. Mar. 27, 2012).
to determine on remand whether, in the first instance, plaintiff has sufficient adaptive
functioning deficits to meet the requirements of the diagnostic description in Listing
12.05 before reaching the paragraph C requirement of the mental retardation listing.
Compare Hickel, supra, 539 Fed.Appx. at 985 & n.9 with Lackey, supra, at *12 (until the
requirements set forth in the introductory paragraph of § 12.05 are met, there is no need
for the ALJ to discuss the specifics of paragraph C of Listing 12.05).
This Court would be remiss if it failed to note that the ALJ not only makes
perfunctory mention of Listing 12.05 at step 3 of his sequential analysis (Tr. 14) but also
then leads the reader to believe that the analysis for whether Croom’s mental
impairment meets or equals the mental retardation listing at 12.05 is the same for other
mental disorders (see id. (“[T]he undersigned has considered whether the ‘paragraph B’
criteria are satisfied. To satisfy the ‘paragraph B’ criteria, the mental impairment 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.”)), when, of course, that is not the case at all, compare 20 C.F.R. Pt.
404, Subpart P, App. 1, § 12.00 (“The listings for mental disorders are arranged in nine
diagnostic categories: Organic mental disorders (12.02); . . . intellectual disability (12.05)
. . . . Each listing, except 12.05 and 12.09, consists of a statement describing the
disorder(s) addressed by the listing, paragraph A criteria (a set of medical findings),
and paragraph B criteria (a set of impairment-related functional limitations). . . . The
structure of the listing for intellectual disability (12.05) is different from that of the
other mental disorders listings.” (emphasis supplied)) with Frame, supra, 596 Fed.Appx.
at 910-911. Whether it was because of this error at Step 3 of the sequential evaluation
process, or plaintiff’s identified error of the ALJ’s “rejection” of the diagnosis of mild
mental retardation (Doc. 12, at 1), the undersigned need agree with plaintiff that the
ALJ’s abbreviated discussion of deficits in adaptive functioning is inadequate. Stated
differently, substantial evidence of record does not support the ALJ’s determination
that Croom lacked the required level of deficits in adaptive functioning to meet Listing
In this case, the ALJ found that despite Croom’s valid IQ score of 65,8 as found by
Dr. Blanton, she did not have “deficits in adaptive functioning” based upon the
[E]lement two then requires deficits in adaptive functioning, which is met
as long as there are significant limitations in at least two of the
social/interpersonal skills, work, leisure, health and safety. The evidence
supports that the claimant had deficits in only functional academics as
educational records reported problems with math and reading. However,
it is also noted that the claimant was taking Geometry, Applied
Chemistry, Biology, US History and Applied Biology all with passing
grades. Relevant to the other areas of adaptive functioning, the record
shows that the claimant was able to successfully work for over five years.
I find that the record fails to demonstrate the deficits in adaptive
functioning as required by the core elements of mental retardation.
(Tr. 22 (emphasis supplied).) There are a number of problems with the ALJ’s cryptic
analysis of deficits in adaptive functioning. First, the ALJ’s “list” of such deficits (see id.)
is obviously incomplete in light of his very next sentence in which he explicitly finds
There can be little question but that the ALJ implicitly acknowledged in this case
that Croom’s low IQ score began before the age of twenty-two (see Tr. 22) and, therefore, there
was no need for the ALJ to mention the Hodges presumption. See Garrett v. Astrue, 244
Fed.Appx. 937, 939 (11th Cir. Jul. 3, 2007) (“It was not error for the ALJ not to mention the
Hodges presumption because the ALJ did not challenge that Garrett’s low IQ began before age
twenty-two.”); compare id. with Hodges, supra, 276 F.3d at 1266-1267 (“We agree with other
circuits in concluding that there is a presumption that mental retardation is a condition that
remains constant throughout life. Therefore, we find that a claimant need not present evidence
that she manifested deficits in adaptive functioning prior to the age of twenty-two, when she
presented evidence of low IQ test results after the age of twenty-two. We reverse the district
judge with directions to remand to the administrative law judge for a determination of whether
there is substantial evidence to rebut this presumption of a fairly constant mental capacity
before the age of twenty-two.”).
deficits in functional academics (id.), as well as clear case law, Tabor, supra, at *7 n.29
(“’The essential feature of Mental Retardation is significantly subaverage general
intellectual functioning that is accompanied by significant limitations in adaptive
functioning in at least two of the following areas: communication, self-care, home
living, social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety.’” (emphasis supplied)). In
addition to failing to include functional academic skills in his list, the ALJ also failed to
include in that list “use of community resources” and “self-direction.” Even if this
Court was to conclude that the ALJ properly “rejected” the idea that plaintiff had
deficits in any of the other areas he listed—besides functional academic skills where the
ALJ found deficits—because she successfully worked for over five years (see id.),9 this
analysis can in no manner be read to “touch upon” the unidentified areas of “use of
While the undersigned does not suggest that plaintiff’s past work experience is
not a relevant part of the analysis, the suggestion is made that more usually goes into the
analysis, specifically a discussion of activities of daily living (and the like). Compare O’Neal v.
Commissioner of Social Security, 614 Fed.Appx. 456, 459-460 (11th Cir. Jun. 10, 2015) (“The record
shows that Mr. O’Neal held a job as a dishwasher for many years without receiving any special
accommodation or training. He quit his job only for family reasons. Afterward, he worked
occasionally as a handy man, helping with carpet and trim work and installing siding. Mr.
O’Neal helps at home with light yard work, looks after his two children, independently
performs all his activities of personal care and daily living, and attends church every Sunday.
He holds a driver’s license and drives locally three times per week. These facts support the
ALJ’s  conclusion that, despite his low I.Q. score, Mr. O’Neal does not have sufficient adaptive
functioning deficits to meet the requirements of the diagnostic description in Listing 12.05.”)
and Perkins v. Commissioner, Social Security Admin., 553 Fed.Appx. 870, 873-874 (11th Cir. Jan. 22,
2014) (finding the ALJ did not err in considering the claimant’s work experience and activities
of daily living with respect to his adaptive functioning analysis in accordance with Listing
12.05) with Hickel, supra, at *984 (“There is evidence in the record to support the ALJ’s findings
with respect to Hickel’s daily activities and behavior. Hickel does not dispute that she is a high
school graduate, she works part time at a nursery, she drives herself to work, she can prepare
simple meals and dress and groom herself, she attends church regularly, and she socializes with
friends.”) and Garrett, supra, 244 Fed.Appx. at 939 (“The record supports the finding by the ALJ
that the required limitations to adaptive functioning were not present, despite Garrett’s low IQ
score. Garrett is able to cook simple meals; perform chores such as dishwashing and yard work;
and build model cars. Garrett’s daily activities include church attendance, television viewing,
card playing, and walking in the mall. Garrett also testified that, with orientation and
instruction, he believed he could return to a job as a stock assistant.”).
community resources” and “self-direction” (see Tr. 22) and, therefore, the undersigned
would be placed in the position of having to do that which only the ALJ is authorized to
do and that is to weigh (or effectively reweigh) the evidence and come to a decision
regarding whether Croom possesses the required level of deficits in adaptive
functioning to meet Listing 12.05. See Davison, supra, 370 Fed.Appx. at 996 (recognizing
that courts are precluded from deciding the facts anew or reweighing the evidence).
And, or course, this Court has no desire to engage in any weighing or reweighing of
evidence in a case, like the present one, where the ALJ has ignored evidence of record of
other deficits in adaptive functioning. Most notably, Dr. Blanton specifically determined
in his report that Croom had functional adaptation problems in the areas of
communication, work, and functional academic skills (Tr. 609) and Croom’s special
education teacher, Rose Wolf, completed a questionnaire in 2006 which implicates
deficits not only in the area of functional academic skills but also in the areas of selfcare, social/interpersonal skills, and communication (see Tr. 343-350).
In consideration of the foregoing, this Court simply cannot find that substantial
evidence of record—identified by the ALJ—supports the finding that Croom lacked the
required level of deficits in adaptive functioning to meet Listing 12.05. Cf. Hubbard v.
Colvin, 2016 WL 624403, *3 (11th Cir. Feb. 17, 2016) (“[W]e decline to affirm using
reasoning that ‘might have supported the ALJ’s conclusion’ but was not offered by the
ALJ himself. See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam).”).
Accordingly, this cause is due to be remanded to the Commissioner of Social Security
for further consideration of the issue of deficits in adaptive functioning and, if
necessary, whether plaintiff has a physical or other mental impairment imposing an
additional and significant work-related limitation of function, as required by paragraph
C of Listing 12.05.
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157,
115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The
remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for
purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S.
292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over
DONE and ORDERED this the 31st day of March, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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