Cintron v. Commissioner of Social Security
MEMORANDUM OF DECISION: The Commissioner's final decision is reversed and remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment in favor of Claimant and close the case. Signed by Magistrate Judge Gregory J. Kelly on 3/21/2014. (MDH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
WILLIAM NORMAN CINTRON,
Case No: 6:12-cv-1672-Orl-GJK
COMMISSIONER OF SOCIAL
MEMORANDUM OF DECISION
William Norman Cintron (the “Claimant”), appeals to the District Court from a final
decision of the Commissioner of Social Security (the “Commissioner”) denying his application for
benefits. Doc. No. 1. Claimant argues that the Administrative Law Judge (the “ALJ”) erred by:
1) not finding that he met Listing 12.05(C); 2) failing to mention Dr. Ludvigh’s opinion in his
decision; and 3) not accounting for all of his functional limitations in his residual functional
capacity (“RFC”) determination. Doc. No. 18 at 7-15. Claimant further argues that the case
should be remanded for an award of benefits because the record clearly reveals that he meets
Listing 12.05(C). Doc. No. 18 at 15-16. For the reasons set forth below, the Commissioner’s
final decision is REVERSED and REMANDED for further proceedings.
STANDARD OF REVIEW.
The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla — i.e., the evidence must do
more than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)); accord Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991).
Where the Commissioner’s decision is supported by substantial evidence, the District
Court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that the evidence preponderates against the Commissioner’s decision.
Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The
District Court must view the evidence as a whole, taking into account evidence favorable as well
as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835,
837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual
findings); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider
evidence detracting from evidence on which Commissioner relied). The District Court “‘may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner].’” See Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
A. Listing 12.05(C).
This dispute centers on whether the ALJ erred in finding that Claimant does not meet
Listing 12.05(C). Doc Nos. 18 at 7-12; 19 at 6-14. At step three of the ALJ’s sequential analysis,
the ALJ must consider whether a claimant’s impairments, individually or in combination, meet or
equal any of the impairments contained in the Listing of Impairments (the “Listings”). The
Listings identify impairments which are considered severe enough to prevent a person from
engaging in gainful activity. 20 C.F.R. § 404.1525(a). By meeting a listed impairment or
otherwise establishing an equivalence, a claimant is presumptively determined to be disabled
regardless of his age, education, or work experience. Id. Thus, an ALJ’s sequential evaluation
of a claim ends if the claimant can establish the existence of a listed impairment. Edwards v.
Heckler, 736 F.2d 625, 628 (11th Cir. 1984).
If the claimant contends that an impairment meets a listing, as he does here (Doc. No. 18
at 7-12), the claimant bears the burden of “present[ing] specific medical findings that meet the
various tests listed under the description of the applicable impairment.”
Wilkinson ex rel.
Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987) (per curiam). In doing so, the claimant
must have a diagnosed condition that is included in the Listings. Id. Diagnosis of a listed
impairment, however, is not enough, as the claimant must also provide objective medical reports
documenting that his or her impairment meets the specific criteria of the applicable listing. Id.;
accord Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam). 1 Further, “[a]n
impairment that manifests only some of [the specific] criteria [of the applicable impairment], no
matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Listing 12.05 provides, in pertinent part, that a claimant is disabled if he or she meets the
12.05 Mental retardation: 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.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied[:]
A claimant can also be found to equal a listing. E.g., Wilson, 284 F.3d at 1224. To equal a listing “the medical
findings must be ‘at least equal in severity and duration to the listed findings.’” Id. (quoting 20 C.F.R. § 404.1526(a)).
Here, Claimant does not argue that he equals Listing 12.05(C). See Doc. No. 18 at 7-12.
C. 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[.]
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05. 2 Accordingly, in order to meet Listing 12.05 “a
claimant must at least[:] 1) have significantly subaverage general intellectual functioning; 2) have
deficits in adaptive [functioning]; and 3) have manifested deficits in adaptive [functioning] before
age 22.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997); 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.05. 3
Additionally, a claimant must meet one of the four sets of criteria found in
12.05(A), (B), (C), or (D) in order to show that his or her impairments are severe enough to meet
or equal Listing 12.05. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A).
Relevant here, paragraph C of Listing 12.05 is met when the claimant shows: 1) “a valid
verbal, performance, or full scale IQ of 60 through 70”; and 2) “a physical or other mental
impairment imposing an additional and significant work-related limitation of function.” Id. at §
12.05(C). “Generally, a claimant meets the criteria for presumptive disability under section
12.05(C) when the claimant presents a valid I.Q. score of 60 to 70 inclusive, and evidence of an
additional mental or physical impairment that has more than ‘minimal effect’ on the claimant’s
ability to perform basic work activities.” Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).
However, “a valid I.Q. score need not be conclusive of mental retardation where the I.Q. score is
The Court cites to Listing 12.05 as it appeared when the ALJ entered his opinion on October 21, 2011. While
Listing 12.05 has not substantively changed since the ALJ’s decision, the Court notes that Listing 12.05 uses
“Intellectual disability” in place of “Mental retardation[.]”
In Crayton, the court stated that in order for a claimant to meet Listing 12.05 he or she must, in relevant part, “have
deficits in adaptive behavior[.]” Crayton, 120 F.3d at 1219. This statement was consistent with the language of
Listing 12.05 at the time Crayton was decided. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (1997). Listing
12.05, however, was later revised, as evidenced above, so that a claimant is now required to demonstrate deficits in
adaptive functioning as opposed to adaptive behavior. The Social Security Administration’s Program Operations
Manual System (POMS) 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.”
POMS DI 24515.056(D)(2).
inconsistent with other evidence in the record on the claimant’s daily activities and behavior.” Id.
(citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986) (per curiam)); see Hodges v.
Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001) (stating that the Commissioner may present
evidence of claimant’s daily life to rebut the presumption that arises when paragraph C of Listing
12.05 is met).
At step two of the sequential evaluation process, the ALJ found that Claimant suffers from
the following severe impairments: mild communication disorder, borderline intellectual
functioning, and scoliosis. R. 15. At step three of the sequential evaluation process, the ALJ
considered whether Claimant met or equaled Listing 12.05, stating, in relevant part, as follows:
The claimant’s mental impairment has been considered under the
requirements of listing 12.05. 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.
The required level of severity for this disorder is met when the
requirements of paragraphs A, B, C, or D are satisfied.
In terms of the requirements in paragraph C, they are not met
because the claimant does not have 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. In this case the paragraph C criteria are not
met because the claimant has no other impairment that imposes
additional and significant limits on functioning as supported by Dr.
Lester below (Exhibit 3F) and the evidence shows that the claimant
graduated from high school in the 50[th] percentile (Exhibit 4F).
R. 16. Ultimately, the ALJ concluded that Claimant did not meet or equal Listing 12.05, and
proceeded to steps four and five of the sequential evaluation process where he determined that
Claimant was not disabled. R. 17-24.
Claimant argues that he meets Listing 12.05(C). Doc. No. 18 at 7-12. Specifically,
Claimant argues that: 1) “the evidence of record shows significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested before the age of
22” (Doc. No. 18 at 8-9); 2) the ALJ found he had a valid IQ score of 70; and 3) despite the ALJ’s
contrary finding, the ALJ’s finding at step two demonstrates that his mild communication disorder
and scoliosis impose additional and significant work-related functional limitations. Doc. No. 18
at 8-12. The Commissioner concedes that the ALJ found Claimant had a valid IQ score of 70
(Doc. No. 19 at 8), and does not contest Claimant’s argument that his mild communication disorder
and scoliosis impose additional and significant work-related functional limitations (See Doc. No.
19 at 6-14). Instead, the Commissioner argues that Claimant “has not carried his burden of
showing he meets Listing 12.05 . . . because he has not satisfied the requisite diagnostic description
of mental retardation found in the introductory paragraph.” Doc. No. 19 at 13. Accordingly, the
issue before Court is whether the Claimant met the introductory paragraph of Listing 12.05.
While both parties offer detailed arguments as to why the ALJ did or did not find that
Claimant met the introductory paragraph of Listing 12.05, review of the ALJ’s decision reveals
that he did not render any findings with respect thereto. See R. 15-17. An ALJ may implicitly
find that a claimant does not meet a listing without committing reversible error. See Hutchison v.
Bowen, 787 F.2d 1461, 1463 (11th Cir.1986). However, under the circumstances of this case, the
Court finds that the ALJ’s decision demonstrates no such implicit finding. Instead, the Court
finds that the ALJ merely quoted the introductory paragraph of Listing 12.05 and proceeded to
determine whether Claimant met any of the following sub-paragraphs. R. 15-16. The Court will
not simply assume the ALJ found that Claimant did or did not meet the introductory paragraph of
Listing 12.05, as either assumption would result in a drastic outcome, i.e., affirmance or reversal
for an award of benefits. See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (the court
will not “affirm simply because some rationale might have supported the ALJ’s conclusion.”). In
similar situations, courts in this Circuit have remanded the matter to the Commissioner for further
proceedings. See Johnson v. Colvin, Case No. 3:12-cv-17-J-JRK, 2013 WL 1175258, at *5-6
(M.D. Fla. March 21, 2013) (remanding, in part, because it was not entirely clear whether the ALJ
found claimant did not meet Listing 12.05(C) because of a lack of deficits in adaptive functioning
or a lack of additional impairments imposing additional significant work-related functional
limitations); Carroll v. Astrue, 2009 WL 1708073, at *1-2 (M.D. Ala. June 17, 2009) (remanding,
in part, because the ALJ did not explicitly address whether claimant met the requirements of the
introductory paragraph of Listing 12.05). The Court finds Johnson and Carroll persuasive, and
therefore finds that the case must be remanded to the Commissioner for further proceedings. On
remand, the Commissioner shall discuss whether or not Claimant meets the introductory paragraph
of Listing 12.05, and discuss what evidence supports his decision with respect thereto. Further,
since the case must be remanded for further proceedings, Claimant’s request that the case be
reversed for an award of benefits is denied. 4
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g); and
2. The Clerk is directed to enter judgment for Claimant and close the case.
The Court finds this issue dispositive and does not address Claimant’s remaining arguments. See Diorio v. Heckler,
721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ must reassess the entire record). While the Court will not
address Claimant’s remaining arguments, the ALJ, on remand, shall expressly consider and weigh Dr. Ludvigh’s
examination report (R. 249-52) and the opinions expressed therein.
DONE and ORDERED in Orlando, Florida on March 21, 2014.
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Brendan F. Flanagan
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Desoto Building #400
8880 Freedom Crossing
Jacksonville, FL 32256-1224
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