Coleman v. Colvin

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and the case is REMANDED for an award of benefits. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on September 1, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHEILA COLEMAN,

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Plaintiff,
v.
NANCY A. BERRYHILL,1
Defendant.

No. 4:16-cv-00830-AGF

MEMORANDUM AND ORDER
This action is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Sheila Coleman was not disabled,
and, thus, not entitled under Title II of the Social Security Act (“the Act”) to disability
insurance benefits, or Supplemental Security Income (“SSI”) under Title XVI of the Act.
For the reasons set forth below, the decision of the Commissioner will be reversed, and
the case remanded for an award of benefits.
BACKGROUND
Plaintiff, who was born on April 13, 1983, protectively filed for disability
insurance benefits and SSI on September 18, 2012, alleging a disability onset date of
January 1, 2011, (age 28) due, inter alia, to learning disorder, bipolar disorder,

1

    Nancy

A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be
substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit.  

depression, and post-traumatic stress disorder. After Plaintiff’s application was denied at
the initial administrative level, she requested an evidentiary hearing before an
Administrative Law Judge (“ALJ”). Such hearing was held on November 20, 2014, at
which Plaintiff, represented by counsel, testified, and after which a vocational expert
(“VE”) submitted vocational opinions by means of written answers to interrogatories.
By decision dated February 12, 2015, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform certain jobs that were available in the national
economy, and was therefore not disabled under the Act. Plaintiff’s request for review by
the Appeals Council of the Social Security Administration was denied on April 12, 2016.
Plaintiff has thus exhausted all administrative remedies and the ALJ’s decision stands as
the final agency action now under review.
Plaintiff argues that the ALJ improperly determined, at step three of the sequential
evaluation process, that Plaintiff’s intellectual disability did not functionally meet or
medically equal the deemed-disabling impairment listed in the Commissioner’s
regulations at 20 CFR Part 404, Subpart P, Appendix 1, Listing 12.05. Plaintiff also
argues that the ALJ improperly evaluated Plaintiff’s credibility.
Medical Record and Hearing Testimony
The Court adopts Plaintiff’s recitation of the facts set forth in her brief, ECF No.
14-1 at 2-9, with the exception of Plaintiff’s protected filing date which is accurately
represented by Defendant’s response as September 18, 2012. Defendant represents that
aside from the protective filing date, she agrees with all other facts as represented by
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Plaintiff. These facts present a fair and accurate summary of the medical record and
testimony at the evidentiary hearing. The Court will discuss specific facts as they are
relevant to the parties’ arguments.
Employment History
A summary of Plaintiff’s FICA earnings from 1998 through 2010, indicates that
Plaintiff earned above the substantial gainful activity (“SGA”) level in only two years,
2005 and 2010.2 ECF No. 13-6 at 15. In two other years she had no earnings, and in five
other years she earned less than $1,000. Id. The consultative examination report, dated
November 5, 2007, completed by Lois Mades, Ph.D., states, under employment history
designation, “[Plaintiff] has been employed as a restaurant worker and a housekeeper.
Her longest period of employment lasted 3 years.” ECF No. 13-8 at 28. Another medical
consultation, dated March 6, 2012, conducted by Wendy Magnoli, Ph.D., in response to
Plaintiff’s request for mental health services while at St. Louis County Jail, noted that
Plaintiff claimed that her longest term of employment had been with McDonald’s from
2003 to 2006, and that she had been a manager at some point, but was fired for closing
early.3 ECF No. 13-15 at 61.

2

The social security administration set the SGA level for 2005 at $9,960 (Plaintiff
earned $11,627 in that year) and for 2010 at $12,000 (Plaintiff earned $12,744).
3

The summary of Plaintiff’s FICA earnings shows Plaintiff’s yearly earnings to be $0
in 2003, $5,509.55 in 2004, $11,627.82 in 2005, and $7,962.60 in 2006. 
3 

Educational History
The record shows that Plaintiff’s test scores in the 3rd grade on the Missouri
Mastery and Achievement Tests, resulted in the following rankings: 1st percentile for
social studies/civics, 3rd percentile in mathematics, 2nd percentile in language arts, and
1st percentile rankings in two unidentifiable categories. ECF No. 13-7 at 5. Plaintiff’s
education enrollment history states, “NOT ATTENDING SCHOOL (DROPOUT UNDER 16),”
for three dates while she was in the 9th grade including September 5, 1997, December 11,
1997, and September 16, 1998; “TRANSFER TO SPECIAL ED PROGRAM,” on December
16, 1998; and “NON-ATTENDANCE (DROPOUT 16 OR OVER),” on February 25, 1999. Id.
at 8.
Plaintiff’s Report Card for kindergarten through eighth grade, indicates that she
repeated 1st grade, and that for ages 11 through 14, she was designated as learning
disabled and not in an assigned grade. ECF No. 13-7 at 4. Several medical reports noted
that Plaintiff reported she attended special education classes. ECF No. 13-8 at 28, 13-10
at 15, 13-10 at 61, 13-15 at 61. Dr. Magnoli’s medical examination report noted that
Plaintiff reported that she left school in the 11th grade, but had earned a GED. ECF No.
13-15 at 61.
ALJ’s Decision
In holding that Plaintiff was not disabled, the ALJ followed the five-step
sequential evaluation process established by the Social Security Administration. See 20
C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff met the insured status
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requirement, and had not engaged in SGA since January 1, 2011, the alleged disability
onset date. At step two, the ALJ found that Plaintiff had the following severe
impairments: bipolar disorder, depression, and post-traumatic stress disorder, as these
impairments had been diagnosed by several medical sources and the evidence showed
they had more than a minimal harmful effect on Plaintiff’s ability to do basic work.
At step three, the ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
deemed-disabling impairments listed in the Commissioner’s regulations. Specifically, as
relevant here, the ALJ concluded that Plaintiff did not meet or medically equal the
criteria of Listing 12.05 (intellectual disability). To meet the requirements of this listing,
a claimant must demonstrate that she suffers from deficits in adaptive functioning that
initially manifested during the developmental period (before age 22), and that she meets
the requirements of one of the four subsections, A through D, of the listing. These are
separate and independent requirements. Ash v. Colvin, 812 F.3d 686, 690 (8th Cir. 2016)
(citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A). To meet subsection B, a claimant
must have a valid verbal, performance, or full scale IQ of 59 or less. To meet subsection
C, a claimant must have an IQ in the range of 60 through 70 and a physical or other
mental impairment imposing an additional and significant work-related limitation of
function.
Here, the ALJ stated that Plaintiff had a full scale IQ of 59 (based on the Wechsler
Adult Intelligence Scale-Fourth Edition (“WAIS-IV”) test, conducted by Shea Voelker,
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Psy.D., on January 26, 2013),4 which satisfied the subsection B criteria for Listing 12.05,
but concluded that Plaintiff failed to establish that she had deficits in adaptive functioning
that manifested prior to the age of 22. The ALJ reasoned that aside from Plaintiff’s
testimony, there were no indications that Plaintiff was enrolled in a special education
program, and Plaintiff failed to offer any other evidence to support manifestation prior to
age 22.
The ALJ went on to hold that Plaintiff failed to show she was subject to “an
ongoing deficit” in adaptive functioning for the following reasons: (1) Plaintiff had
maintained employment for a period of three years continuously; (2) even though she
lived with her sister and had few responsibilities, if necessary, Plaintiff could cook food
in the microwave, make her bed, and she knew how to do laundry even though she did
not normally do it; (3) Bridget Graham, Psy. D., noted that Plaintiff had no difficulty
interacting socially during her evaluation; and (4) Plaintiff testified that on a typical day,
she cleaned up at home, washed dishes, sometimes swept the floor, and would sleep.
At step four of the evaluation process, the ALJ found that Plaintiff had the RFC to
perform the full range of work at all exertional levels, but with the following nonexertional limitations: she could understand, remember, and carry out only simple

4

The descriptive classification for relevant intellectual levels below average
intelligence according to the WAIS-IV IQ assessment are as follows: 80 to 89 is
classified as low average, 70 to 79 is classified as borderline, and 69 and below is
classified as extremely low. See Contemporary Intellectual Assessment: Theories, Tests,
and Issues 215 (Dawn Flanagan & Patti Harrison eds., 3d ed. 2012). 
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instructions; she could have occasional, not frequent, interaction with supervisors, coworkers, and the public; she could tolerate only occasional change in work location; and
she could make only simple, work-related decisions.
The ALJ found that Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of her symptoms were not entirely credible because: (1) there was
substantial evidence in the record of illicit drug use during the alleged period of
disability; (2) Plaintiff made inconsistent statements to her medical providers regarding
her illicit drug use; (3) the record contained evidence of other inconsistent statements,
and inconsistent effort by the claimant during her mental exams; (4) the findings of the
examining mental health professionals failed to corroborate Plaintiff’s allegations of
symptoms and limitations that precluded her from performing SGA; and (5) Plaintiff’s
activities of daily living did not support her allegations of disabling mental health
symptoms.
As for the opinions in evidence, the ALJ gave “little weight” to the opinion
provided by the Medical Source Statement – Mental, completed by treating physician,
Sanjeev Kamat, M.D., dated July 11, 2013; did “not [adopt]” the opinion stated in the
Consultative Examination Report, by Dr. Voelker, dated January 26, 2013; and gave
“significant weight” to the Mental RFC Assessment, dated February 20, 2013, completed
by Ricardo Moreno, Psy.D., based upon a review of records. ECF No. 13-3 at 22-23.
Dr. Kamat indicated that Plaintiff was extremely limited in her ability to
understand, remember, and carry out detailed instructions, and respond appropriately to
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criticism from supervisors; moderately limited in other work related functions, such as
the ability to make simple decisions; and not significantly limited in areas such as her
ability to maintain socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness. ECF No. 13-10 at 67-68.5 The ALJ determined that Dr.
Kamat’s opinion was against the bulk of the evidence, concluding that the record
demonstrated that Plaintiff had an ability to perform activities above the level found by
Dr. Kamat.
As noted above, on January 26, 2013, Dr. Voelker administered the WAIS-IV and
determined that Plaintiff had a full scale IQ of 59, which placed her in the mild mental
retardation range of intellectual functioning. Dr. Voelker also noted that, as for
Plaintiff’s ability to relate, she was coherent and relevant, but did not provide
spontaneous conversation, and maintained poor eye contact. Dr. Voelker noted that
Plaintiff was cooperative with the examiner; her stream of speech and mental activity
exhibited goal-directed speech, with no tangents or flight of ideas; and that Plaintiff’s
flow of thought was logical and sequential. In narrative form, Dr. Voelker concluded,
inter alia, that Plaintiff’s full scale IQ score of 59 was consistent with Plaintiff’s reports
of having special education classes, although there were no school records to positively
confirm such classes. Dr. Voelker observed that Plaintiff appeared to put forth her full

5

The record does not indicate the duration of Dr. Kamat’s treating relationship with
Plaintiff.
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effort in her cognitive examination. Dr. Voelker also stated that Plaintiff appeared to
require assistance in managing her own funds.
Without questioning Plaintiff’s full scale IQ score of 59, the ALJ found that
although Dr. Voelker was an accepted medical source, “her conclusions [were] not
generally consistent with the bulk of the evidence in the record and not consistent with
her own findings,” such as that Plaintiff was coherent and cooperative. ECF No. 13-3 at
24.
Dr. Moreno reported that Plaintiff was moderately limited in her ability to
understand and remember detailed instructions, maintain attention and concentration for
extended periods of time, and sustain ordinary routine without special supervision. Dr.
Moreno also opined Plaintiff was not significantly limited in her ability to remember very
short and simple instructions. ECF No. 13-4 at 25-27. The ALJ afforded Dr. Moreno’s
report significant weight because the ALJ concluded it was consistent with the bulk of the
evidence.
The ALJ also noted the third party statement dated October 22, 2012, provided by
Plaintiff’s mother. Plaintiff’s mother reported that Plaintiff’s impairments limited her
memory, understanding, concentration, ability to follow instructions, ability to get along
with others, and ability to complete tasks. Plaintiff’s mother also reported that Plaintiff
sometimes had difficulty performing personal care activities such as bathing and
grooming. The ALJ concluded that Plaintiff’s mother was not an accepted medical

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source and that her conclusions regarding cognitive function and activities of daily living
were not consistent with the bulk of the evidence.
At step five, the ALJ relied on the VE’s reply to a Vocational Interrogatory that
asked the VE to consider a person with Plaintiff’s age, education, work experience, and
RFC. The VE concluded that such a person would be unable to perform Plaintiff’s past
work as a fast food vendor and hair braider. The VE opined that the hypothetical person
would be capable of unskilled work as an industrial cleaner, laundry worker, or truck
washer. Based on the VE’s opinion, the ALJ found that Plaintiff was capable of making
a successful adjustment to other work that existed in significant numbers in the national
economy, and, therefore, was not disabled.
Arguments of the Parties
Plaintiff argues that the ALJ erred in finding no proof of a manifestation of deficits
in adaptive functioning before the age of 22. Plaintiff points to the school records that
indicate she did not continue school beyond 10th grade, and “Transfer to Special ED
Program.” Plaintiff also asserts that her 3rd grade state test scores, that show Plaintiff
was placed in percentile ranks of 1 to 3, further indicates that she suffered from deficits in
adaptive functioning that manifested before age 22. Plaintiff argues that the record
establishes that Plaintiff met the criteria of both subsections B and C of Listing 12.05.
In response, Defendant affirms that Plaintiff’s full scale IQ is 59 and states, “[t]he
issue in the case now before the Court is not the lack of IQ testing, but that the record
showed that Plaintiff did not have the required deficits in adaptive functioning.” ECF
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No. 19 at 7. Defendant argues that the report Plaintiff relies on showing a transfer to
special education classes is “without substance” as the same document indicates that
Plaintiff either withdrew beforehand or was not attending classes. Furthermore,
Defendant argues, there is no evidence that Plaintiff ever attended special education
classes even if transferred to the program, nor is there any evidence showing why
Plaintiff may have been transferred. And although Plaintiff gave numerous reports to her
evaluating doctors that she was placed in special education classes, Dr. Magnoli’s report
noted that Plaintiff stated she attained a GED certificate.
Plaintiff also argues that the ALJ erred in finding that Plaintiff did not display
ongoing deficits in adaptive functioning. Plaintiff contends that her activities of daily
living do not support the ALJ’s conclusions, pointing to Plaintiff’s Functional Report,
completed by Plaintiff in connection with her application for SSI benefits, noting her
inability to live alone, inability to go out unsupervised, need for help to remember things,
and inability to handle money by herself. Plaintiff also points to several medical sources
who noted deficits in Plaintiff’s functioning: specifically, Dr. Mades’s notation that
Plaintiff had poor judgment, difficulty with simple calculations, limited hindsight and
judgment; and Dr. Graham’s notation that Plaintiff was unable to identify past presidents,
had poor abstract reasoning, and poor insight and judgment. Additionally, Plaintiff
argues that her employment history including reaching SGA levels for only two years out
of a 13-year period, working unskilled jobs for short periods of time, and brief periods of

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self-employment braiding hair, is inconsistent with a finding that Plaintiff lacked deficits
in adaptive function.
In response, Defendant relies on Dr. Magnoli’s indication that Plaintiff claimed to
have worked for three years and that she even worked as a manager in a fast food
restaurant for a short term before being fired. Defendant contends that three years of
continuous employment and rising to the level of manager shows that Plaintiff did not
have the necessary deficits in adaptive functioning. Additionally, Defendant argues that
Plaintiff’s self-employment as a hair braider, identified as corresponding to a position of
semi-skilled work by the VE, is inconsistent with a diagnosis of intellectual disability that
meets the 12.05 Listing requirements.
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court “must review
the entire administrative record to ‘determine whether the ALJ’s findings are supported
by substantial evidence on the record as a whole.’” Johnson v. Astrue, 628 F.3d 991, 992
(8th Cir. 2011) (citation omitted). “Substantial evidence is less than a preponderance, but
enough that a reasonable mind would find it adequate to support the ALJ’s decision.”
Vance v. Berryhill, No. 16-1591, 2017 WL 2743089, at *1 (8th Cir. June 27, 2017)
(citation omitted). The court “may not reverse . . . merely because substantial evidence
would support a contrary outcome.” Johnson, 628 F.3d at 992 (citation omitted).
“Substantial evidence is that which a ‘reasonable mind might accept as adequate to
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support a conclusion.’” Id. (quoting Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010)).
A reviewing court “must consider evidence that both supports and detracts from the
ALJ’s decision.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (citation omitted).
“If, after review, [the court finds] it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s findings, [the court]
must affirm the decision of the Commissioner.” Dixon v. Barnhart, 353 F.3d 602, 605
(8th Cir. 2003). Put another way, a court should “disturb the ALJ’s decision only if it
falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th
Cir. 2015) (citation omitted). However, a decision does not fall outside that zone simply
because the reviewing court might have reached a different conclusion had it been the
finder of fact in the first instance. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010).
Ordinarily, when a reviewing court concludes that a denial of disability benefits
was improper, the court, out of “abundant deference to the ALJ, [should] remand the case
for further administrative proceedings.” Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir.
2000). Remand with instruction to award benefits is appropriate “only if the record
‘overwhelmingly supports’ such a finding.” Buckner, 213 F.3d at 1011 (quoting
Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992)).
To be entitled to benefits, a claimant must demonstrate an “inability to engage in
any substantial gainful activity” which exists in the national economy, by reason of a
medically determinable impairment “which has lasted or can be expected to last for a
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continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The
Commissioner has promulgated regulations, found at 20 C.F.R. § 404.1520, establishing
a five-step sequential evaluation process to determine disability. The Commissioner
begins by deciding whether the claimant is engaged in substantial gainful activity. If so,
benefits are denied. If not, the Commissioner decides whether the claimant has a severe
impairment or combination of impairments. If the impairment or combination of
impairments is severe and meets the duration requirement, the Commissioner determines
at step three whether the claimant=s impairment meets or is equal to one of the deemeddisabling impairments listed in the Commissioner’s regulations. If not, the
Commissioner asks at step four whether the claimant has the RFC to perform his past
relevant work.
If the claimant can perform her past work, the claimant is not disabled. If she
cannot perform her past relevant work, the burden of proof shifts at step five to the
Commissioner to demonstrate that the claimant retains the RFC to perform work that is
available in the national economy and that is consistent with the claimant’s vocational
factors—age, education, and work experience. Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010). When non-exertional limitations significantly affect a claimant’s ability
to work, an ALJ is required to consult a VE and cannot rely on the Medical-Vocational
Guidelines to meet this burden. Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006).
Consideration of Listing 12.05

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As stated above, “[t]o meet the requirements of Listing 12.05, a claimant must
demonstrate that she suffers from deficits in adaptive functioning that initially manifested
during the developmental period. The claimant also must meet the requirements of one
of the four subsections lettered A through D. These are separate and independent
requirements.” Ash, 812 F.3d at 690. Here, as noted above, at step three, the ALJ stated
that Plaintiff had a full scale IQ of 59, which meets the criteria of Listing 12.05B, and
Defendant, in her brief before the Court, affirms that this is indeed Plaintiff’s IQ.
Therefore, as stated by Defendant, the issue before the Court is whether the ALJ properly
concluded that Plaintiff failed to establish that she had the necessary deficits in adaptive
functioning that manifested before age 22.
The Commissioner’s regulations refer to adaptive function as “how you learn and
use conceptual, social, and practical skills in dealing with common life demands.” 20
C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00(H)(3)(a). Evidence for adaptive functioning
may be taken from a variety of sources including medical sources, standardized tests of
adaptive functioning, third party information such as a report from a family member or
friend, school records, reports from employers or supervisors, and an applicant’s own
statements concerning how he or she handles all daily activities. 20 C.F.R. § Pt. 404,
Subpt. P, App. 1 § 12.00(H)(3)(b)
Upon review of the entire record, the Court finds that the record does not support
the ALJ’s conclusion that Plaintiff did not demonstrate deficits in adaptive functioning
that manifested prior to age 22. The ALJ’s reading of the record as having no indication
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that Plaintiff was in special education is particularly problematic in light of Plaintiff’s
school enrollment record, described above, that documented a transfer to special
education and that she dropped out of school in the 10th grade, and Plaintiff’s report card
that indicated a learning disabled designation from ages 11 to 14. At the very least, this
would warrant a remand for reconsideration. See Bryant v. Berryhill, No. 7:16-CV-36-D,
2017 WL 914645, at *4 (E.D.N.C. Feb. 17, 2017) (recommending remand for Listing
12.05 reconsideration in part because the ALJ’s statement that “there was no indication
from school records that she received special education services” was based on a meager
five page record, and because the evidence that the plaintiff tested in the fifteenth and
ninth percentile ranks, and the records indicating freshman status at about age 18, were
actually consistent with the possibility of receiving special education services), R. & R.
adopted, No. 7:16-CV-36-D, 2017 WL 908190 (E.D.N.C. Mar. 7, 2017). However, the
Court finds that remand for reconsideration is unnecessary in light of the evidence in the
record that affirmatively establishes Plaintiff suffered from ongoing deficits of adaptive
functioning, and that such deficits manifested before age 22.
The Eighth Circuit has held that rigid proof of the onset of impairment before age
22 is not necessary; rather the regulations “permit [courts] to use judgment, based on
current evidence, to infer when the impairment began.” Maresh v. Barnhart, 438 F.3d
897, 900 (8th Cir. 2006) (citation omitted) (reversing with an award of benefits and
holding that the ALJ should have found that adaptive functioning deficits manifested
before age 22 from evidence of struggling in special education classes, dropping out of
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school, a verbal IQ of 70, and frequent fights with other children); see also Reed v.
Colvin, 779 F.3d 725, 727 (8th Cir. 2015) (finding early onset of Listing 12.05
impairment was shown by a history of attending special education classes, repeating of
grades, noted problems with math and reading, and quitting school in 11th grade); cf.
Ash, 812 F.3d at 691-92 (affirming that a claimant did not meet the deficits in adaptive
functioning requirement of Listing 12.05 when the plaintiff was capable of driving
unfamiliar routes, shopping independently, managing her own finances, completing basic
household chores, had a ten-year work history, and was found by an evaluating doctor to
be adaptively functional).
Here, Plaintiff’s third grade Missouri state test scores placing her in the 1st
percentile for social studies, 2nd percentile for language arts and 3rd percentile for
mathematics, plus the fact that she repeated 1st grade, indicate early and severe
difficulties in school. Additionally, Plaintiff’s school records indicate her educational
difficulties continued throughout the developmental period as her report card indicated a
learning disability designation, non-attendance issues, a transfer to special education, and
dropping out in 10th grade.
The ALJ’s reliance on Plaintiff’s employment history is also problematic. The
ALJ stated that Plaintiff had been employed for three continuous years, citing to a
notation in a medical examination report. However, as noted above, the summary of
Plaintiff’s FICA earnings show that from 1998 to 2010, Plaintiff only achieved earnings
above SGA levels twice, in non-consecutive years, 2005 and 2010. Similarly,
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Defendant’s argument, that Plaintiff’s self-employment as a hair braider supports the
ALJ’s finding, is unpersuasive. There is no indication of how regularly, if at all, Plaintiff
actually had clients; nor was there any evidence that Plaintiff’s actual job responsibilities
represented even semi-skilled work. See Douglas v. Astrue, 341 F. App’x 257, 259 (8th
Cir. 2009) (noting that an ALJ’s classification of a plaintiff’s job as semi-skilled work
was not appropriate to deny benefits because it failed to take into account the actual skill
and abilities required to perform the plaintiff’s specific duties for that job).
Similarly, Plaintiff’s daily activities relied on by the ALJ do not support a finding
that Plaintiff lacked deficits in adaptive functioning. Plaintiff’s ability to microwave T.V.
dinners, make her bed, do laundry, tidy up at home, wash dishes, sweep, or sleep, do not,
as the ALJ claimed, support the conclusion that Plaintiff lacked deficits in adaptive
functioning. In fact, the Commissioner’s regulation that addresses how everyday
activities should be considered specifically states, “[t]he fact that you engage in common
everyday activities, such as caring for your personal needs, preparing simple meals, or
driving a car, will not always mean that you do not have deficits in adaptive functioning
as required by 12.05B2.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.00H(3)(d). The
regulations insist, “conclusions about your adaptive functioning rest on whether you do
your daily activities independently, appropriately, effectively, and on a sustained basis….
We will not assume that your ability to do some common everyday activities …
demonstrates that your mental disorder does not meet the requirements.” Id. See also,
Douglas, 341 F. App’x at 259 (finding evidence that the plaintiff drove, shopped, did
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household chores, prepared light meals, and was independent in all areas of personal care
was not sufficient to undermine deficits in adaptive functioning considering the plaintiff
had an IQ of 63, could not pay bills, use a checkbook, count change, do banking, or go to
the post office). Here, as noted above, Plaintiff testified that she did not live
independently, she could not drive, and while she was capable of some self-personal care,
her mother reported that Plaintiff needed reminders to take medications and do chores,
that Plaintiff could not go out unsupervised, and that Plaintiff could not manage money.
While the ALJ determined that Plaintiff’s mother’s statement was inconsistent
with the bulk of the evidence in the record, this determination is not actually supported by
the record. Nothing in the record contradicts the mother’s descriptions that Plaintiff
could not go out alone because she gets lost, could not drive, struggled remembering
tasks, could not pay bills or use a checkbook, and did not follow instructions or adapt to
changes in routine well. The ALJ’s decision to disregard the Plaintiff’s mother’s
statement because she was not an accepted medical source is contrary to the
Commissioner’s regulations that explicitly state that third-party, non-medical sources can
provide information about “any symptom-related functional limitations and restrictions.”
20 C.F.R. § 404.1529(c)(3); see also Jones v. Colvin, No. C 14-3049-MWB, 2016 WL
915236, at *8 (N.D. Iowa Mar. 7, 2016) ( stating “lack of medical training is not a good
reason to discount third-party function reports . . . because doing so ignores the purpose
of third-party function reports”).

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The Court holds that the record as a whole establishes that Plaintiff had deficits in
adaptive functioning that manifested prior to age 22. Furthermore, as the ALJ and
Defendant acknowledged, Plaintiff has a full scale IQ of 59, which satisfies the
subsection B requirement of Listing 12.05. Therefore, Plaintiff has met both
requirements of Listing 12.05. When a plaintiff “wins at the third step (a listed
impairment), she must be held disabled, and the case is over.” Jones v. Barnhart, 335
F.3d 697, 699 (8th Cir. 2003). This case is reversed and remanded for an award of
benefits.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED and the case is REMANDED for an award of benefits.
A separate Judgment shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 1st day of September, 2017.

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