Toth v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The decision of the Commissioner is REVERSED, and the case is REMANDED to the Commissioner in accordance with this Opinion and Order. The Clerk is directed to enter a judgment in favor of Toth and against the Commissioner. Signed by Magistrate Judge Susan L Collins on 1/8/2019. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
AMANDA CATHERINE TOTH,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A. Berryhill,
Acting Commissioner of Social Security,
Defendant.
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CAUSE NO. 1:17-cv-00516-SLC
OPINION AND ORDER
Plaintiff Amanda Catherine Toth appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application under the Social
Security Act (the “Act”) for disability insurance benefits (“DIB”).1 (DE 1). For the following
reasons, the Commissioner’s decision will be REVERSED, and the case will be REMANDED to
the Commissioner for further proceedings in accordance with this Opinion and Order.
I. FACTUAL AND PROCEDURAL HISTORY
Toth applied for DIB in May 2014, alleging disability as of September 25, 2009. (DE 10
Administrative Record (“AR”) 153-60). The Commissioner denied Toth’s application initially
and upon reconsideration. (AR 91-98). After a timely request, a hearing was held on March 22,
2016, before Administrative Law Judge William D. Pierson (the “ALJ”), at which Toth, who
was represented by counsel; Toth’s mother; and a vocational expert testified. (AR 28-68). On
September 15, 2016, the ALJ rendered an unfavorable decision to Toth, concluding that she was
1
All parties have consented to the Magistrate Judge. (DE 13); see 28 U.S.C. § 636(c).
not disabled because despite the limitations caused by her impairments, she could perform a
significant number of jobs in the economy. (AR 10-21). Toth’s request for review was denied
by the Appeals Council (AR 1-6), at which point the ALJ’s decision became the final decision of
the Commissioner. See 20 C.F.R. § 404.981.
Toth filed a complaint with this Court on December 22, 2017, seeking relief from the
Commissioner’s decision. (DE 1). In the appeal, Toth alleges that the ALJ: (1) improperly
evaluated whether she met listing 12.05C, intellectual disability; and (2) failed to incorporate the
ALJ’s finding of moderate deficits in maintaining concentration, persistence, or pace into the
hypothetical posed to the vocational expert at step five. (DE 18 at 11-22).
At the time of the ALJ’s decision, Toth was 26 years old (AR 21, 154) and had a
certificate of completion from high school, which involved special education classes (AR 200).
She was working part time as a pet bather at a pet salon five to six days a week, and had been
performing this work since 2009. (AR 239, 267, 270). Toth alleges disability due to:
intellectual disability, mild; depressive disorder; general anxiety disorder; bipolar disorder; and
Coffin-Lowry Syndrome.2 (DE 18 at 2).
2
Coffin-Lowry syndrome is described as follows:
Coffin-Lowry syndrome is a condition that affects many parts of the body. The
signs and symptoms are usually more severe in males than in females, although
the features of this disorder range from very mild to severe in affected women.
Males with Coffin-Lowry syndrome typically have severe to profound
intellectual disability and delayed development. Affected women may be
cognitively normal, or they may have intellectual disability ranging from mild to
profound. . . .
Most affected males and some affected females have distinctive facial features
including a prominent forehead, widely spaced and downward-slanting eyes, a
short notes with a wide tip, and a wide mouth with full lips. . . . Soft hands with
short, tapered fingers are also characteristic of Coffin-Lowry syndrome.
Additional features of this condition include short stature, an unusually small
2
II. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The
Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000) (citation omitted).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence,
reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the
ALJ’s decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
head (microcephaly), progressive abnormal curvature of the spine
(kyphoscoliosis), and other skeletal abnormalities.
Your Guide to Understanding Genetic Conditions, U.S. National Library of Medicine, https://ghr.nlm.nih.gov/
condition/coffin-lowry-syndrome (last visited January 8, 2019).
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III. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB if she establishes an “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is
currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment or combination of impairments meets or equals one of the impairments
listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P, App’x 1; (4) whether the claimant is
unable to perform her past work; and (5) whether the claimant is incapable of performing work
in the national economy.3 See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001)
(citations omitted); 20 C.F.R. § 404.1520. An affirmative answer leads either to the next step or,
on steps three and five, to a finding that the claimant is disabled. Zurawski v. Halter, 245 F.3d
881, 886 (7th Cir. 2001) (citation omitted). A negative answer at any point other than step three
stops the inquiry and leads to a finding that the claimant is not disabled. Id. (citation omitted).
3
Before performing steps four and five, the ALJ must determine the claimant’s residual functional capacity
(“RFC”) or what tasks the claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a). The RFC
is then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20
C.F.R. § 404.1520(e).
4
The burden of proof lies with the claimant at every step except the fifth, where it shifts to the
Commissioner. Clifford, 227 F.3d at 868 (citation omitted).
B. The Commissioner’s Final Decision
On September 15, 2016, the ALJ issued a decision that ultimately became the
Commissioner’s final decision. (AR 10-21). At step one, the ALJ concluded that Toth had not
engaged in substantial gainful activity after her alleged onset date of September 25, 2009. (AR
12). At step two, the ALJ found that Toth’s borderline intellectual functioning arising from
Coffin-Lowery Syndrome was a severe impairment. (AR 12). At step three, the ALJ concluded
that Toth did not have an impairment or combination of impairments severe enough to meet or
equal a listing. (AR 12-14).
Before proceeding to step four, the ALJ determined that Toth’s symptom testimony was
not entirely consistent with the medical evidence and other evidence of record. (AR 15). The
ALJ then assigned Toth the following RFC:
[T]he claimant has the [RFC] to perform a full range of work at all
exertional levels but with the following nonexertional limitations:
the claimant [is limited] to only occasional decision making and
only occasional changes in the work setting. The claimant can
tolerate predictable changes in the work environment that allows
her to sustain a flexible and goal oriented pace. The claimant is
limited from fast-paced work such as assembly line production
work with rigid or strict productivity requirements. The claimant
is limited to work that involves only simple, routine and repetitive
tasks that could be learned through short demonstration and up to
thirty days. The claimant can maintain the concentration required
to perform simple tasks. The claimant can remember simple worklike procedures. The claimant can make simple work-related
decisions. The claimant can read at . . . least the fourth grade
level. She can read lists and address labels, but is not to perform
work requiring extensive manual reading.
(AR 14). Based on the assigned RFC and the vocational expert’s testimony, the ALJ found at
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step four that Toth was unable to perform her past relevant work, commenting that this finding
was “generous in nature” since she was still performing such work. (AR 20). At step five, the
ALJ found that Toth could perform a significant number of other jobs in the economy, including
cleaner/housekeeper and assembly positions. (AR 21). Therefore, Toth’s application for DIB
was denied. (AR 21).
C. Listing 12.05C
Toth first argues that the ALJ erred in his step-three analysis by finding that she did not
meet or equal Listing 12.05C, intellectual disability. For the following reasons, the ALJ’s stepthree finding will be remanded.
The Court must apply the version of Listing 12.05C that was in effect at the time the ALJ
issued his decision, that is, on September 15, 2016.4 The Listing provides in relevant part:
12.05 Intellectual Disability: Intellectual disability 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.
....
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’x 1 § 12.05 (2016). “[T]he structure of Listing . . . 12.05
indicates that a claimant must show both that [s]he meets the listing’s definition of [intellectual
4
Listing 12.05C no longer exists due to a rule change effective January 17, 2017. A claimant must now
meet either Listing 12.05A or Listing 12.05B. See Revised Medical Criteria for Evaluating Disorders, 81 Fed. Reg.
66138-01, 2016 WL 5341732 (Sept. 26, 2016).
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disability] and that [s]he meets the required severity by satisfying the requirements in either A,
B, C, or D.” Smallwood v. Astrue, No. 2:08-cv-85, 2009 WL 2475272, at *8 (N.D. Ind. Aug. 11,
2009) (emphasis in original) (citing Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006)).
Therefore, when boiled down, to meet Listing 12.05C, a claimant must show: (1)
significantly subaverage intellectual functioning with deficits in adaptive functioning prior to age
22; (2) a valid verbal, performance, or full-scale IQ of 60 through 70; and (3) a physical or other
mental impairment imposing an additional and significant work-related limitation of function.
Charette v. Astrue, 508 F. App’x 551, 553 (7th Cir. 2013); Adkins v. Astrue, 226 F. App’x 600,
605 (7th Cir. 2007); Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007); Anderson v. Astrue, No.
4:10-cv-91, 2011 WL 4899990, at *5 (N.D. Ind. Oct. 14, 2011); Smallwood, 2009 WL 2475272,
at *8.
Here, at step three the ALJ articulated the following reasoning when concluding that Toth
did not meet Listing 12.05C:
[T]he “paragraph C” criteria of [L]isting 12.05 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. The claimant has an IQ of 65 but the
medical evidence does not establish another impairment that
imposes additional and significant work-related limitations of
function. This is more fully set forth below under Finding 5.
(AR 14 (internal citation omitted)). Later in his decision then, the ALJ explained his rationale
for concluding that Toth’s depression and anxiety were not severe impairments for purposes of
step two and the third prong of Listing 12.05C. (See AR 14-20).
The parties do not dispute that Toth satisfies the second prong of Listing 12.05C, as the
record includes Wechsler Adult Intelligence Scale, Fourth Edition testing in May 2014 that
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revealed a full-scale IQ of 65. (AR 379). Toth’s assertion of error, rather, centers on the ALJ’s
finding about the third prong of Listing 12.05C. Toth contends that the ALJ erred when finding
that her depression and anxiety were not “severe” impairments such as to constitute another
impairment that imposes an additional and significant work-related limitation of function for
purposes of Listing 12.05C.
Courts have found that an ALJ’s finding of a “severe” additional physical or mental
impairment at step two, in turn satisfies the third prong of Listing 12.05C. See Smith v. Colvin, 9
F. Supp. 3d 875, 884 (E.D. Wis. 2014) (explaining that an ALJ’s finding of a “severe” additional
physical or mental impairment at step two satisfies the third prong of Listing 12.05C); Miller v.
Colvin, No. 3:13-CV-380 JD, 2014 WL 4105034, at *1 n.3 (N.D. Ind. Aug. 19, 2014) (collecting
cases); Washington v. Astrue, No. 2:10-cv-367, 2012 WL 3108872, at *7 (N.D. Ind. July 31,
2012) (same); Frazier v. Astrue, No. CV-09-3063-CI, 2010 WL 3910331, at *5 (E.D. Wash. Oct.
4, 2010) (same); see also SSR 02-1p, 2002 WL 34686281, at *4-5 (Sept. 12, 2002) (explaining
that if obesity is found to be a “severe” impairment at step two, then it satisfies the third prong of
Listing 12.05C). Therefore, the Court will focus on the ALJ’s step-two finding that was silent as
to Toth’s depression and anxiety and stated that Toth had just one severe impairment, borderline
intellectual functioning. (AR 12).
“The Step 2 determination is a de minimis screening for groundless claims . . . .”
O’Connor-Spinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016) (citation and internal quotation
marks omitted); see also Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016). “An impairment
is ‘not severe’ only if it is ‘a slight abnormality’ that has ‘no more than a minimal effect on the
ability to do basic work activities[.]’” Meuser, 838 F.3d at 910 (alteration in original) (quoting
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SSR 96-3p, 1996 WL 374181 at *1 (July 2, 1996)); see also O’Connor-Spinner, 832 F.3d at 697.
“When evaluating the severity of an impairment, the ALJ assesses its functionally limiting
effects by evaluating the objective medical evidence and the claimant’s statements and other
evidence regarding the intensity, persistence, and limiting effects of the symptoms.” Thomas v.
Colvin, 826 F.3d 953, 960 (7th Cir. 2016) (citation omitted).
The Seventh Circuit Court of Appeals in O’Connor-Spinner reversed an ALJ’s step-two
finding of non-severe where the claimant had a diagnosis of “major depression, recurrent
severe.” 832 F.3d at 693. In doing so, the Court stated: “[The step-two] determination is not
supported by substantial evidence and, indeed, strikes us as nonsensical given that the diagnosis,
by definition, reflects a practitioner’s assessment that the patient suffers from ‘clinically
significant distress or impairment in social, occupational, or other important areas of
functioning.’” Id. at 697 (emphasis added) (quoting Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 679-80 (4th ed. text rev. 2000)). Similarly, in Meuser,
the Seventh Circuit criticized the ALJ’s step-two finding that Meuser’s schizophrenia was nonsevere, stating that the Court had “difficulty imagining how an uncontested diagnosis of
schizophrenia . . . could not survive Step 2.” 838 F.3d at 910.
Here, as Toth catalogues in her brief (DE 18 at 11-17), the record reveals that after her
alleged onset date of September 25, 2009, Toth experienced periods of 12 months or more where
her symptoms of depression and anxiety were more than a slight abnormality. In August 2010,
Dr. Prevesh Rustagi, a psychiatrist, considered Toth’s report of a long history of anxiety and
unpredictable, escalating mood swings, and he diagnosed her with bipolar disorder, unspecified,
and generalized anxiety disorder. (AR 319-20). He assigned her a Global Assessment of
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Functioning (“GAF”) score of 55, indicative of moderate symptoms.5 (AR 320). Dr. Rustagi
treated Toth regularly through February 2012 for medication management, documenting
generally that Toth had a good response to her medication regime, but her medications were
adjusted from time to time for complaints of irritability, anger, and anxiety. (See AR 297-314).
At her last visit in February 2012, Toth reported irritability and anxiety, and her mother
expressed concern whether she was helping Toth by mediating in her employment or whether
she was enabling Toth. (AR 297).
In May 2012, Toth began seeing Elizabeth McGee, a psychiatric nurse at Psychiatric
Care, for medication management; Toth continued these visits through April 2015. (AR 399414). She was diagnosed with a bipolar disorder and a generalized anxiety disorder, and was
assigned a current and highest past-year GAF of 59, again indicative of moderate symptoms.
(AR 393). Treatment focused on coping skills and stress management. (AR 393, 405, 414). At
several visits, Toth was noted to have impulsive behavior, magical thinking, interpersonal
relationship problems, and emotional problems, but no depression or anxiety. (See, e.g., AR
406, 409-10). At other visits, however, Ms. McGee documented that Toth had symptoms of
anxiety, irritability, and lability. (See, e.g., AR 403, 410-11).
In May 2014, Toth saw Dr. Andrew Miller, a psychologist, for purposes of her DIB
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GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000). A GAF score
of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). Id.
“The American Psychiatric Association no longer uses the GAF as a metric.” Spencer v. Colvin, No. 13-cv1487, 2015 WL 684545, at *17 n.5 (C.D. Ill. Feb. 17, 2015) (citing Am. Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 16 (5th ed. 2013)). However, several clinicians of record used GAF scores in assessing
Toth, so they are relevant to the ALJ’s decision. See id. (citing Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir.
2013)).
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application. (AR 378-82). Dr. Miller concluded that Toth exhibited symptoms of an anxiety
disorder, centered on thunderstorms; that she required some support from others to accomplish
her daily tasks; and that she used to deal with depression but did not display any current
depressive symptoms. (AR 382). Dr. Miller diagnosed Toth with a depressive disorder not
otherwise specified; specific phobia, natural environment type; and an intellectual disability,
mild. (AR 382). He assigned Toth a current and highest past-year GAF score of 58, reflective of
moderate symptoms. (AR 382).
In June 2014, Dr. William Shipley, a state agency psychologist, reviewed Toth’s record
and found that Toth had a medically determinable impairment as to Listing 12.04, affective
disorders. (AR 76). Dr. Shipley opined that Toth had moderate restrictions in daily living
activities; moderate difficulties in maintaining concentration, persistence, or pace; mild
difficulties in maintaining social functioning; and no repeated episodes of extended
decompensation (AR 76), resulting in a “severe” impairment. See Dorrance v. Colvin, No. 3:12CV-540-CAN, 2013 WL 6839909, at *5 (N.D. Ind. Dec. 27, 2013) (“The ratings in the
functional areas correspond to a determination of severity of mental impairment. If the ALJ
rates the first three functional areas as none or mild and the fourth area as none, then generally
the impairment is not considered severe. Otherwise, the impairment is considered severe . . . .”
(citing 20 C.F.R. § 404.1520a(d)). Dr. Shipley concluded that despite her severe mental
impairment, Toth was capable of performing unskilled work without special considerations.
(AR 76). Dr. Kenneth Neville, another state agency psychologist, affirmed Dr. Shipley’s
opinion in September 2014. (AR 84-85).
Considering the foregoing medical evidence, and the Seventh Circuit precedent discussed
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above, the ALJ’s finding at step two that Toth’s depression and anxiety were non-severe
impairments is dubious. As already explained, courts have concluded that an ALJ’s finding of a
“severe” additional physical or mental impairment at step two satisfies the third prong of Listing
12.05C. See Smith, 9 F. Supp. 3d at 884; Washington, 2012 WL 3108872, at *7. Here, the
record arguably reflects that Toth’s anxiety and depression were more than “a slight
abnormality” for a period of 12 months or more after her alleged onset date. Meuser, 838 F.3d at
910 (alteration in original) (quoting SSR 96-3p, 1996 WL 374181 at *1); see also O’ConnorSpinner, 832 F.3d at 697. Therefore, Toth’s challenge to the ALJ’s finding as to the third prong
of Listing 12.05C has some traction.
But to meet Listing 12.05C, Toth still has to show that she satisfies its first
prong—significantly subaverage intellectual functioning with deficits in adaptive functioning
prior to age 22. The ALJ did not discuss this prong in any detail (see AR 16); nor did the parties
address it in their briefs.
The Seventh Circuit has explained that the term “deficits in adaptive functioning”
denotes an “inability to cope with the challenges of ordinary everyday life.” Novy, 497 F.3d at
709 (citing Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 42
(4th ed. text rev. 2000)). “As the Seventh Circuit noted, ‘[i]f you cannot cope with those
challenges, you are not going to be able to hold down a full-time job.’” Youngblood v. Colvin,
No. 13-cv-209, 2014 WL 841528, at *3 (E.D. Wis. Mar. 4, 2014) (alteration in original) (quoting
Novy, 497 F.3d at 709). The Seventh Circuit does “not require an ALJ to use a specific
measurement method” when assessing “deficits in adaptive functioning.” Charette, 508 F.
App’x at 553 (“Because the ALJ examined Charette’s ability to cope with the challenges of daily
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life, she applied the correct legal standard.” (citing Novy, 497 F.3d at 710)). “[W]hile a
qualifying IQ score may be prima facie evidence that an applicant suffers from ‘significantly
subaverage general intellectual functioning,’ § 12.05, there is no necessary connection between
an applicant’s IQ scores and her relative adaptive functioning.” Youngblood, 2014 WL 841528,
at *5 (collecting cases).
Because the ALJ rejected Listing 12.05C on the third prong, he did not adequately
evaluate the first prong—Toth’s limitations and her “adaptive ability to overcome them,
including [her] ability to reach out to [family] for help.” Charette, 508 F. App’x at 554
(concluding that claimant lacked deficits in adaptive functioning and adequately overcame his
intellectual limitations where he lived independently, socialized with others, and worked shorterterm jobs obtained through family and friends); see Adkins, 226 F. App’x at 605 (concluding that
the claimant failed to demonstrate deficits in adaptive functioning where he was gainfully
employed until the age of 41 without material complaints from his employers and the record
contained only minimal evidence about his cognitive and medical state before age 22 other than
his own testimony that he completed school only through the eighth grade); Novy, 497 F.3d at
710 (relying upon claimant’s daily living activities, living circumstances, and work history when
finding that she did not satisfy the adaptive deficits requirement of Listing 12.05(C)); Witt v.
Barnhart, 446 F. Supp. 2d 886, 895-96 (N.D. Ill. 2006) (concluding that the claimant failed to
exhibit deficits in adaptive functioning manifested prior to age 22 because of his eighteen-year
work history, even though he suffered from learning disabilities and received poor marks in
special education classes); Cooper v. Massanari, No. 00 C 8083, 2001 WL 1464930, at *8-9
(N.D. Ill. Nov. 15, 2001) (finding that although the claimant had taken special education classes
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and had only a ninth grade education, her work history and functional activities were ample
evidence to support the ALJ’s conclusion that she did not satisfy the adaptive deficits
requirement of Listing 12.05C). Here, the record is equivocal on the issue of the existence of
adaptive functioning deficits sufficient to satisfy the first prong of Listing 12.05C. See, e.g.,
Youngblood, 2014 WL 841528, at *5 (remanding where the record was equivocal on the issue of
the existence of adaptive functioning deficits).
Consequently, this case will be remanded so that the ALJ may properly perform and
articulate his analysis concerning whether Toth meets all of the requirements of Listing 12.05,
intellectual disability.6 See, e.g., Warren v. Colvin, 565 F. App’x 540, 544 (7th Cir. 2014)
(remanding for additional IQ testing to better evaluate the claimant’s intellectual ability with
respect to Listing 12.05); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2002) (remanding
where the ALJ failed to provide meaningful discussion of certain medical evidence relevant to
whether the child claimant satisfied the equivalent of Listing 12.05 for children); Anderson, 2011
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Toth asks that the Court order the Commissioner upon remand to apply the version of Listing 12.05C in
effect on September 15, 2016, the date of the ALJ’s decision. (DE 18 at 20-22). But the Revised Medical Criteria
for Evaluating Disorders specifically negates such a request in its discussion of the revised listing’s effective date of
January 17, 2017:
This means that we will use these final rules on and after their effective date, in
any case in which we make a determination or decision. We expect that Federal
courts will review our final decisions using the rules that were in effect at the time
we issued the decision. If a court reverses our final decision and remands a case
for further administrative proceedings after the effective date of these final rules,
we will apply these final rules to the entire period at issue in the decision we
make after the court’s remand.
2016 WL 5341732, at *66138 n.1 (emphasis added). Therefore, the Social Security Administration intended that the
revised listing be applied on cases remanded to the Agency on or after January 17, 2017. Furthermore, as Toth
acknowledges in her brief, the Seventh Circuit has assumed on at least one occasion that the Social Security
Administration has the right to promulgate rules retroactively. (DE 24 at 4 (citing Barthelemy v. Barnhart, 107 F.
App’x 689, 693 (7th Cir. 2004))). Accordingly, the Court declines to order the Commissioner upon remand to apply
the version of Listing 12.05C that was in effect at the time of the ALJ’s decision.
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WL 4899990, at *7 (remanding the ALJ’s step-three finding where the ALJ “cherry-picked” the
evidence and failed to minimally articulate his reasoning as to the first prong of Listing 12.05C);
Gill v. Astrue, No. 09-cv-719, 2011 WL 4708046, at *6-7 (S.D. Ill. Oct. 14, 2011) (remanding
where the ALJ did not discuss deficits in adaptive functioning with respect to Listing 12.05);
Vander Linden v. Astrue, No. 09-C-534, 2010 WL 1417931, at *6-7 (E.D. Wis. Apr. 7, 2010)
(remanding where the ALJ did not reference Listing 12.05 and provided nothing more than a
superficial analysis). Because a remand is warranted on Toth’s first argument, the Court need
not reach Toth’s remaining argument.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is REVERSED, and the case
is REMANDED to the Commissioner in accordance with this Opinion and Order. The Clerk is
directed to enter a judgment in favor of Toth and against the Commissioner.
SO ORDERED.
Entered this 8th day of January 2019.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge
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