Tubbs v. Colvin

Filing 27

Order re: 1 Complaint filed by Carol Tubbs stating the decision of theCommissioner of Social Security denying Plaintiff's claim for supplemental security income 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 Sonja F. Bivins on 3/27/2017. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CAROL TUBBS,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 15-00597-B

ORDER
Plaintiff
judicial
Social

Carol

review

Security

of

Tubbs
a

(hereinafter

final

denying

her

“Plaintiff”),

decision

the

claim

of

for

seeks

Commissioner

supplemental

of

security

income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.

On October 25, 2016, the parties consented to

have the undersigned conduct any and all proceedings in this
case.

(Doc.

24).

Thus,

the

action

was

referred

to

the

undersigned to conduct 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
1

Nancy Berryhill became the Acting Commissioner of Social
Security on January 23, 2017.
Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Nancy Berryhill should be substituted
for Carolyn W. Colvin as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

hereby ORDERED that the decision of the Commissioner be REVERSED
and REMANDED for further proceedings not inconsistent with this
decision.
I.

Procedural History2
Plaintiff filed her application for benefits on October 18,

2011, alleging disability beginning September 1, 2011, based on
heart problems, high blood pressure, and anemia.
171).

Plaintiff’s

request,

she

was

application
granted

an

was

denied

administrative

(Tr. 137, 166,

and

upon

timely

hearing

before

Administrative Law Judge Frank Klinger (hereinafter “ALJ”) on
September

12,

2013.

(Id.

at

49).

Plaintiff

attended

the

hearing with her counsel and provided testimony related to her
claims.

(Id. at 52).

A vocational expert (“VE”) also appeared

at the hearing and provided testimony.

(Id. at 62).

On March

10, 2014, the ALJ issued an unfavorable decision finding that
Plaintiff is not disabled.

(Id. at 24-38).

The Appeals Council

denied Plaintiff’s request for review on September 24, 2015.
(Id. at 1-2).

Therefore, the ALJ’s decision dated March 10,

2014, became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

2

remedies,

(Doc. 1).

Plaintiff

The parties

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF, not the page numbers assigned
by the Agency.

2

waived oral argument on October 25, 2016 (Doc. 23) and 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.

Issues on Appeal
1. Whether substantial evidence supports the
ALJ’s finding that Plaintiff has the
severe impairment of “probable borderline
intellectual functioning?”
2. Whether the ALJ erred in failing to find
that Plaintiff meets Listing 12.05C?
3. Whether substantial evidence supports the
ALJ’s assignment of “little weight” to
the
opinion
of
examining
licensed
professional counselor, Dr. Donald W.
Blanton, Ph.D.?

III. Factual Background
Plaintiff was born on
years

of

age

at

the

September 12, 2013.

time

May 11, 1964,
of

her

and was

administrative

(Tr. 53, 166).

forty-nine
hearing

on

Plaintiff graduated from

high school attending special education classes.

(Id. at 53-

54).
Plaintiff last worked in 2005 as a scaler in a poultry
processing plant. 3
being

a

(Id. at 172).

cook/dishwasher

in

a

Her past work also includes

restaurant.

(Id.).

None

of

Plaintiff’s past work qualifies as substantial gainful activity.
3

Plaintiff reported to the Agency that she quit working in 2005
because of problems with transportation. (Tr. 171).

3

(Id. at 36, 62).

In her Disability Report submitted to the

Agency, Plaintiff stated that she has not been able to work
since

September

1,

2011,

pressure, and anemia.

due

to

heart

problems,

high

blood

(Id. at 166, 171).

IV. Standard of Review
In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

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

4

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

4

whether

substantial

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).

4

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).
V.

Statutory And Regulatory Framework
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
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

423(d)(1)(A);

a

The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability.

for

20 C.F.R.

§§ 404.1520, 416.920.
The
engaged

claimant
in

must

first

substantial

prove

gainful

that

activity.

he

or
The

she

has

second

not
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

5

listed

impairment,

then

the

claimant

is

automatically

found

education, or work experience.

disabled

regardless

of

age,

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 his or her
past relevant work.
Cir. 1986).

Jones v. Bowen, 810 F.2d 1001, 1005 (11th

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

claimant’s

physicians;

age,

education

(3)

evidence

and

work

of

pain;

history.

and
Id.

(4)

the

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

work history.
1985).

functional

capacity,

age,

education,

and

Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.

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.
Apfel, 190 F.3d 1224, 1228 (11th

Cir. 1999).

Jones v.

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)).
VI.

Discussion

6

As previously stated, Plaintiff presents three issues for
the Court’s review.

Having found herein that Plaintiff’s second

asserted error requires remand to the Commissioner, the Court
pretermits its discussion of the remaining claims.
In

her

brief,

Plaintiff

argues

that

the

ALJ

erred

in

failing to consider Listing 12.05C (mental retardation) 5 and in
failing to find that she meets the requirements of that Listing
given

her

Full

her

physical

impairments, which were found to be severe by the ALJ.

(Doc. 15

at 11-13).

Scale

IQ

score

of

64

and

The Commissioner counters that substantial evidence

supports a finding that Plaintiff lacks the requisite deficits
in adaptive functioning to satisfy Listing 12.05C.

(Doc. 20 at

9-12).
In

his

sequential

decision,

evaluation

the

ALJ

process

found

that

at

step

Plaintiff

has

two
the

of

the

severe

impairments of “[i]ron deficiency, anemia secondary to eating
5

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.

7

clay

with

a

hypertension

history

with

poor

of

transfusions,

compliance,

and

morbid

probable

obesity,
borderline

intellectual functioning.” (Tr. 26).

At step three, the ALJ

determined

have

that

Plaintiff

“does

not

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.”

(Tr. 26).

More precisely, the ALJ

found that the severity of Plaintiff’s mental impairment did not
meet or medically equal the criteria of Listing 12.02.

(Id.).

The ALJ did not mention Listing 12.05C,6 did not afford Plaintiff
the presumption that she has deficits in adaptive functioning
prior to age 22, and did not conduct the required analysis.
Under

the

law

of

this

Circuit,

“[a]

claimant

is

conclusively presumed to be disabled if he meets or equals the
level of severity of a listed impairment, or Listing.”

Perkins

v. Commissioner, Soc. Sec. Admin., 553 Fed. Appx. 870, 872 (11th
Cir. 2014)(citing Crayton v. Callahan, 120 F.3d 1217, 1219 (11th
Cir. 1997)).

A claimant bears the burden of proving that he or

she has an impairment that meets or is medically equivalent to a

6

In finding that Plaintiff has the severe impairments of “[i]ron
deficiency anemia secondary to eating clay with a history of
transfusions, morbid obesity, [and] hypertension with poor
compliance. . .,” the ALJ necessarily determined that Plaintiff
has “a physical or other mental impairment imposing an
additional and significant work-related limitation of function”
as required by Listing 12.05C.

8

listed impairment.

See Bell v. Bowen, 796 F.2d 1350, 1353 (11th

Cir. 1986); accord Perkins, 553 Fed. Appx. at 872 (“The claimant
bears

the

burden

of

demonstrating

that

he

meets

a

Listing.”)(citing Barron v. Sullivan, 924 F.2d 227, 229 (11th
Cir. 1991)); see also Wilson v. Barnhart, 284 F.3d 1219, 1224
(11th Cir. 2002) (“To ‘meet’ a Listing, a claimant must have a
diagnosis
reports

included

in

documenting

the

that

Listings
the

and

must

conditions

provide

meet

the

medical
specific

criteria of the Listings and the duration requirement. . . . To
‘equal’ a Listing, the medical findings must be ‘at least equal
in severity and duration to the listed findings.’”).
To establish presumptive disability under section 12.05C, a
claimant

must:

(1)

present

evidence

of

a

valid

verbal,

performance, or full scale IQ of 60 through 70; 7 (2) present
evidence

of

a

physical

or

other

7

mental

impairment

imposing

Several of the various tests for determining IQ scores have been
modified since the Listings were created. See Hogue v. Colvin,
2014 U.S. Dist. LEXIS 59667, *10 n.4, 2014 WL 1744759, *3 n.4
(S.D. Ala. Apr. 30, 2014) (citing cases).
For example, the
Wechsler Adult Intelligence Scale (the “WAIS”), a common test
and the test used in this case, is now on the fourth edition
(the “WAIS–IV”).
Id.
While the WAIS–IV continues to measure
“full scale IQ,” it no longer measures verbal IQ or performance
IQ per se.
Instead, a verbal comprehension index score is the
functional equivalent of verbal IQ, and a perceptual reasoning
index score is the functional equivalent of performance IQ. Id.
(citing cases).

9

additional and significant work-related limitation of function; 8
and (3) satisfy the diagnostic description of mental retardation
in Listing 12.05. 9

See Grant v. Astrue, 255 Fed. Appx. 374, 375

(11th Cir. 2007)(“The mental retardation Impairment Listing in §
12.05C requires the claimant to demonstrate [1] a ‘significant
subaverage

general

intellectual

functioning

with

deficits

in

adaptive functioning initially manifested during the development
period; i.e., the evidence demonstrates or supports onset of the
impairment

before

performance,

or

age

full

22,’

as

well

scale

IQ

of

as
60

[2]

a

through

‘valid
70

and

verbal,
[3]

a

physical or other mental impairment imposing an additional and
8

For purposes of Listing 12.05C, the second prong requirement is
met once there is a finding that the claimant has an additional
severe impairment because the requirement of “significant workrelated limitation of function” “involves something more than
‘minimal’ but less than ‘severe.’” Johnson v. Colvin, 2014 U.S.
Dist. LEXIS 13497, *7, 2014 WL 413492, *3 (S.D. Ala. Feb. 3,
2014) (quoting Edwards v. Heckler, 755 F.2d 1513, 1515 (11th
Cir. 1985)).
In this case, the ALJ found Plaintiff’s anemia,
obesity, and hypertension to be severe, and the parties do not
dispute that finding. (Tr. 26). Therefore, the second prong of
Listing 12.05C, requiring evidence of a physical or other mental
impairment imposing an additional and significant work-related
limitation of function, is not in dispute in this action.

9

As
discussed
herein,
“[m]ental
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.”
Hogue, 2014
U.S. Dist. LEXIS 59667 at *11 n.5, 2014 WL 1744759, at *3 n.5
(quoting 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05).
“‘Adaptive functioning’ refers to a person’s ability to perform
activities of daily living and social functioning.”
(Id.)
(citations omitted).

10

significant work-related limitation of function.’”).

In this

Circuit, a claimant who presents a valid IQ score of 60 to 70 is
entitled

to

the

presumption

adaptive

functioning

before

that
the

he

age

manifested
of

22.

deficits

See

Hodges

in
v.

Barnhart, 276 F.3d 1265, 1266, 1268–69 (11th Cir. 2001).
Presumptive
rebuttable,

disability

however,

and

pursuant
the

to

Listing

Commissioner

is

12.05C

charged

is
with

determining whether there is sufficient evidence to rebut the
presumption. 10

Perkins, 553 F. Appx. at 873 (“A valid IQ score

10

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,
despite a qualifying IQ score.
For example, in Perkins, 553
Fed. Appx. 870, 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 claims regarding his education
and employment history. Also, in Hickel, 539 Fed. Appx. at 984,
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 v.
Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001), and found
that the presumption was rebutted by other evidence that showed
that
the
claimant
did
not
have
“deficits
in
adaptive
functioning.” In reaching that 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 simple meals, dressed herself, drove herself
to work, attended church regularly, and socialized with friends.
Id. at 984-985. See also Popp v. Heckler, 779 F.2d 1497, 14981500 (11th Cir. 1986) (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. Mar. 9, 2015) (The ALJ properly found that,
despite a Full Scale IQ score of 63, the plaintiff did not have
11

does not have to be conclusive of mental retardation where the
IQ score is inconsistent with other record evidence regarding
the claimant’s daily living activities and behavior.”).
In

the

present

case,

the

ALJ

did

not

mention

Listing

12.05C, and it is not clear from the record that he conducted
the analysis required under the Listing.

The record reflects

that Plaintiff was administered two IQ tests.
from

Plaintiff’s

counsel,

Plaintiff

was

Upon a referral
administered

the

Wechsler Adult Intelligence (“WAIS”) test by Dr. Blanton, Ph.D.,
a licensed professional counselor, in August 2013.
The test yielded a full scale score of 64.
Blanton

opined

that

the

score

was

a

(Tr. 305).

(Id. at 306).
valid

assessment

Dr.
of

Plaintiff’s current level of intellectual functioning and noted
that there were no distracting factors, and that Plaintiff put
significant limitations in adaptive functioning where the record
reflected that, although the plaintiff had been in special
education 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 her personal needs, and had a significant work
history, the ALJ properly found that her Full Scale IQ score of
60 was inconsistent with the record evidence regarding her daily
activities); Lyons v. Astrue, 2009 U.S. Dist. LEXIS 128950 (M.D.
Fla. May 24, 2009), adopted by 2009 U.S. Dist. LEXIS 48535, 2009
WL 1657388 (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).

12

forth

good

Plaintiff

effort.

was

in

the

(Id.).
mild

Dr.
range

Blanton
of

also

mental

opined

retardation,

that
and

concluded that she had deficits in adaptive functioning due to
mental retardation manifested prior to the age of 22 in the
areas of communication, work, health and safety, and functional
academic skills.

(Id. at 307).

The ALJ also ordered a consultative examination by Dr. Nina
Tocci in December 2013 due to his concern that Plaintiff had
sought to exaggerate her symptoms with Dr. Blanton because she
had not displayed any signs or symptoms of depression during a
February 2012 examination by Dr. Sylvia Colon, M.D., 11 despite
reporting that she was depressed all the time.
56).

(Id. at 31, 255-

On December 18, 2013, Dr. Tocci administered the WAIS IV,

WMS-IV, and the MSE.
of 66.
invalid

The testing yielded a Full Scale IQ score

(Id. at 309-10).
because

Dr. Tocci opined that the results were

Plaintiff

demonstrated

poor

effort

disregarded verbal and visual cues and instructions.
11

and

(Id. at

It is noteworthy that while the ALJ indicated, in rejecting
Dr. Blanton’s report, that it was based on Plaintiff’s
subjective statements rather than objective evidence, the record
reflects that the IQ score was actually generated from the WAIS
examination
that
Dr.
Blanton
administered
to
Plaintiff.
Further, the ALJ’s rejection of Dr. Blanton’s report because it
was the result of an attorney referral and because he only saw
Plaintiff one time was not appropriate. Hickel, 539 Fed. Appx.
987 (the fact that the doctor was a one-time consultative
examiner retained by the claimant rather than the Commissioner
is not, standing alone, a valid basis for rejecting his medical
opinion.).

13

311).

She diagnosed Plaintiff with malingering (Axis I) and

opined

that

range

of

Diagnostic

Plaintiff

was

intelligence;
Impression

Mental Retardation).

functioning

however,

for

Axis

she
II

within

the

deferred

on

(Personality

(Id. at 310-11).

borderline
providing

Disorders

a

and

Dr. Tocci opined that

“[t]he chances that the range of scores from 63 to 71 includes
[Plaintiff’s] true IQ are 95 out of 100.”

(Id.).

This is

significant because, while Dr. Tocci found that Plaintiff’s IQ
score on the test she administered was not valid, Dr. Tocci
nevertheless concluded that Plaintiff’s true IQ was in the 63 to
71 range.
finding

This opinion by Dr. Tocci supports Dr. Blanton’s

that

the

Full

Scale

IQ

score

of

64

which

Plaintiff

received on the WAIS administered by Dr. Blanton was indeed a
valid score.

Also, this score is certainly consistent with

Plaintiff’s school records which reflect that she was in special
education

classes

from

seventh

12

grade

through

graduation.

12

Plaintiff reported that, although she graduated from high
school, she did not pass the high school exit exam.
The ALJ
rejected Plaintiff’s statement on the ground that it is not
possible to graduate without passing the high school exit
examination.
(Tr. 28).
Aside from his unsupported assertion,
the ALJ offered no evidence that sets forth the current high
school graduation requirements in the state let alone those that
existed when Plaintiff graduated nearly thirty years ago.
To
the contrary, the record contains a letter dated April 1, 2014,
after the ALJ’s decision, in which the Alabama Deputy
Superintendent of Education explained that students graduating
in 1983, like Plaintiff, “were not expected to take or pass” the
Alabama high school graduation examination, which was first
14

Additionally,

the

record

reflects

that

while

Plaintiff

has

worked as a cook/dishwasher and also as a scaler in a chicken
plant for time periods spanning several months to a few years,
she

has

never

activity.

worked

at

the

level

of

substantial

gainful

The ALJ’s decision does not reflect that he reviewed

this evidence under the standard set forth in Listing 12.05C,
and that he afforded Plaintiff the rebuttable presumption that
she manifested deficits in adaptive functioning prior to age 22.
The

Court

acknowledges

that

an

ALJ

is

not

required

to

explicitly discuss a listing where it may be implied from the
ALJ’s decision that he found that the claimant did not meet the
listing in question and that finding is supported by substantial
evidence.

See, e.g., James v. Commissioner, Soc. Sec. Admin.,

657 Fed. Appx. 835, 838 (11th Cir. 2016) (although ALJ never
discussed Listing 12.05C, “[a] finding that [claimant] lacked
adaptive deficits as required under the introductory paragraph
of Listing 12.05 can be implied from the ALJ’s conclusion that
[claimant’s] prior work experience indicated that she did not
have an intellectual disability,” noting evidence that claimant
worked for fifteen years, much of that time performing semiskilled jobs, including work as a shift leader and cashier at
Pizza

Hut

where

she

was

responsible

running

shifts,

administered to students expecting to graduate in 1985.
216, 225).

(Id. at

15

for

supervising other employees, preparing bank deposits, cashing
out customers, and preparing daily reports, as well as evidence
that the claimant independently performed activities of personal
care,

socialized,

and

attended

church

weekly);

Rodriguez

v.

Commissioner of Soc. Sec., 633 Fed. Appx. 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); Mazer v. Commissioner of Soc.
Sec., 2016 U.S. Dist. LEXIS 110642, *11-12, 2016 WL 4409341, *4
(M.D. Fla. Aug. 19, 2016) (finding that “[s]ubstantial evidence
support[ed] the ALJ’s implicit finding that Plaintiff lacked the
necessary

deficits

in

adaptive

functioning

to

meet

listing

12.05,” where the evidence showed that claimant worked over a
period of years as a sales associate, inventory stocker, car
detailer, grocery clerk, and as a department manager where he
supervised

at

least

eight

other

people

and

hired

and

fired

employees; he could drive; and he was capable of managing his
own funds); and Welch v. Social Sec. Admin., 2016 U.S. Dist.

16

LEXIS 42989, *12-16, 2016 WL 1270619, *4 (N.D. Ala. Mar. 31,
2016) (although ALJ did not discuss Listing 12.05C, his implicit
finding

that

claimant

did

not

have

deficits

in

adaptive

functioning was supported by evidence that claimant cared for
herself, her family, and her home without assistance, socialized
with family and friends and attended public gatherings, read a
book per week, drove her husband to and from work, and handled
financial matters).
However, unlike the foregoing cases, the present case is
not one in which the Court can easily discern the ALJ’s path of
reasoning.

While the ALJ clearly evaluated Plaintiff’s claims

under Listing 12.02, the record does not reflect that the ALJ
properly

evaluated

Plaintiff’s

claims

under

Listing

12.05C.

Accordingly, the Court finds that remand is appropriate for the
ALJ to consider whether Plaintiff meets Listing 12.05.

See

Hartman v. Colvin, 2014 U.S. Dist. LEXIS 91467, *17-18, 2014 WL
3058550, *6-8 (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

Plaintiff’s

adaptive

functioning

skills would support the determination that the Plaintiff did
not meet Listing 12.05(C)” - citing evidence that the claimant
had a high school GPA of 3.18 and a class rank of 31 of 193, but
was

in

special

education

classes

17

and

never

received

a

high

school

diploma;

where

she

never

worked

at

the

level

of

substantial gainful activity or in a semi-skilled job; where she
lived

with

her

mother,

and

her

mother

had

custody

of

her

children; and where she was able to cook, clean, shop, handle
finances and drive, although she needed seven attempts to pass
the driver’s test); Hogue, 2014 U.S. Dist. LEXIS 59667 at *10,
2014 WL 1744759 at *5, 2014 WL 1744759 at *16 (reversed for
consideration
insufficient

of
to

Listing
rebut

12.05C

the

where

presumption

of

the

evidence

disability,

was

citing

evidence that claimant had friends and a girlfriend, shopped and
handled

money,

cooked

and

cleaned,

played

video

games,

used

Facebook, and had a drivers license, but dropped out of school
during his second attempt at the seventh grade, and had past
work that did not include supervisory, managerial, or technical
responsibilities);

Frank

v.

Astrue,

2011

U.S.

Dist.

LEXIS

141162, *14-15, 2011 WL 6111692, *4 (S.D. Ala. Dec. 8, 2011)
(finding that it was “clearly 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

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).
In sum, because it is unclear from the record that the ALJ

18

conducted the proper analysis under Listing 12.05C, remand is
required. On remand, the ALJ should assess all of the evidence
in the record relating to Listing 12.05C and expressly determine
whether Plaintiff meets the Listing.
VII.

Conclusion
For

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 pursuant
to sentence four of 42 U.S.C. § 405(g) for further proceedings
not

inconsistent

with

this

decision.

13

See

Melkonyan

v.

Sullivan, 501 U.S. 89 (1991).
DONE this 27th day of March, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

13

The Court’s 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, and terminates this
Court’s jurisdiction over this matter. See Shalala v. Schaefer,
509 U.S. 292 (1993).
19