DAVIS v. COLVIN

Filing 13

ORDER granting in part and denying in part 8 Plaintiff's Motion for Summary Judgment and denying 10 Defendant's Motion for Summary Judgment. The case is remanded for further evaluation in light of this Order. Signed by Judge Alan N. Bloch on 3/30/2017. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JODIE LYNN DAVIS,

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) Civil Action No. 16-112
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Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

ORDER
AND NOW, this 30th day of March, 2017, upon consideration of Defendant’s Motion for
Summary Judgment (Doc. No. 10) filed in the above-captioned matter on June 2, 2016,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff’s Motion for Summary Judgment (Doc. No.
8) filed in the above-captioned matter on April 19, 2016,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART and DENIED IN
PART. Specifically, Plaintiff’s Motion is granted to the extent that it seeks a remand to the
Commissioner of Social Security (“Commissioner”) for further evaluation as set forth below, and
denied in all other respects. Accordingly, this matter is hereby remanded to the Commissioner
for further evaluation under sentence four of 42 U.S.C. § 405(g) in light of this Order.
I.

Background
On January 18, 2013, Plaintiff Jodie Lynn Davis protectively filed a claim for

Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 13811383f. (R. 156-59; 160-68). Specifically, Plaintiff claimed that she became disabled on May 13,
1

2010, due to depression, anxiety, a cognitive disorder, and asthma. (R. 160; 181). After being
denied benefits initially, Plaintiff sought, and obtained, a hearing before an Administrative Law
Judge (“ALJ”), which was held on August 4, 2014. (R. 32-79). In a decision dated September
19, 2014, the ALJ denied Plaintiff’s request for benefits. (R. 11-27). On December 24, 2015,
the Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. (R. 1-3). Plaintiff filed a timely appeal with this Court, and the parties have
filed cross-motions for summary judgment.
II.

Standard of Review
Judicial review of a social security case is based upon the pleadings and the transcript of

the record. See 42 U.S.C. § 405(g). The scope of review is limited to determining whether the
Commissioner applied the correct legal standards and whether the record, as a whole, contains
substantial evidence to support the Commissioner's findings of fact. See Matthews v. Apfel, 239
F.3d 589, 592 (3d Cir. 2001) (noting that “’[t]he findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive’” (quoting 42 U.S.C.
§ 405(g))); Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999) (stating
that the court has plenary review of all legal issues, and reviews the administrative law judge's
findings of fact to determine whether they are supported by substantial evidence).
“Substantial evidence” is defined as “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate’” to support a conclusion. Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.
1995)). However, a “single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence.”
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d 110,

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114 (3d Cir. 1983)). “Nor is evidence substantial if it is overwhelmed by other evidence –
particularly certain types of evidence (e.g., that offered by treating physicians) – or if it really
constitutes not evidence but mere conclusion.” Id.
A disability is established when the claimant can demonstrate some medically
determinable basis for an impairment that prevents him or her from engaging in any substantial
gainful activity for a statutory twelve-month period. See Fargnoli v. Massanari, 247 F.3d 34, 3839 (3d Cir. 2001). “A claimant is considered unable to engage in any substantial gainful activity
‘only if his physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy . . . .’”
Id. at 39 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration (“SSA”) has promulgated regulations incorporating a
five-step sequential evaluation process for determining whether a claimant is under a disability
as defined by the Act. See 20 C.F.R. § 416.920(a)(4). In Step One, the Commissioner must
determine whether the claimant is currently engaging in substantial gainful activity. See 20
C.F.R. § 416.920(a)(4)(i). If so, the disability claim will be denied. See Bowen v. Yuckert, 482
U.S. 137, 140 (1987). If not, the second step of the process is to determine whether the claimant
is suffering from a severe impairment. See 20 C.F.R. § 416.920(a)(4)(ii). “An impairment or
combination of impairments is not severe if it does not significantly limit [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 416.922(a). If the claimant
fails to show that his or her impairments are “severe," he or she is ineligible for disability
benefits. If the claimant does have a severe impairment, however, the Commissioner must
proceed to Step Three and determine whether the claimant’s impairment meets or equals the

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criteria for a listed impairment. See 20 C.F.R. § 416.920(a)(4)(iii). If a claimant meets a listing,
a finding of disability is automatically directed. If the claimant does not meet a listing, the
analysis proceeds to Steps Four and Five.
Step Four requires the ALJ to consider whether the claimant retains the residual
functional capacity (“RFC”) to perform his or her past relevant work, see 20 C.F.R. §
416.920(a)(4)(iv), and the claimant bears the burden of demonstrating an inability to return to
this past relevant work, see Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). If the claimant is
unable to resume his or her former occupation, the evaluation then moves to the fifth and final
step.
At this stage, the burden of production shifts to the Commissioner, who must demonstrate
that the claimant is capable of performing other available work in the national economy in order
to deny a claim of disability. See 20 C.F.R. § 416.920(a)(4)(v). In making this determination,
the ALJ should consider the claimant’s RFC, age, education, and past work experience. See id.
The ALJ must further analyze the cumulative effect of all the claimant’s impairments in
determining whether he or she is capable of performing work and is not disabled. See 20 C.F.R.
§ 416.923.
III.

The ALJ's Decision
In the present case, the ALJ applied the sequential evaluation process in reviewing

Plaintiff’s claim for benefits. At Step One, the ALJ found that Plaintiff had not been engaged in
substantial gainful activity since January 18, 2013, her application date. (R. 13). The ALJ also
found that Plaintiff met the second requirement of the process insofar as she had several severe
impairments, specifically, borderline intellectual functioning, depression, anxiety, obesity, and
asthma. (R. 13-14). After addressing whether Plaintiff’s impairments met or medically equaled

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the criteria of several listings, including Listing 12.05, the ALJ concluded that Plaintiff’s
impairments did not meet any of the listings that would satisfy Step Three. (R. 14-17).
The ALJ next found that Plaintiff retains the RFC to perform medium work as defined in
20 C.F.R. § 416.967(c) except that the work should have no exposure to concentration of
extremes of cold, heat, wetness, humidity and pulmonary irritants such as gasses, fumes, dust
and odors; the work is limited to unskilled entry work that does not require handling money as a
part of the job; the work should have a Language level as found in the DOT of not more than 3
or equivalent to no more than a 4th grade reading level; Plaintiff requires a stable work
environment where the work place and the work process remain generally the same from day-today and where the job site is fixed; in addition, the supervisor would direct the employee's work
activity so that the employee does not have to prioritize or use judgment to determine order; the
decision-making consists of several concrete variables in or from standardized situations; there
should be no precision work; and there should be no face-to-face contact with the public or work
as a part of a team. (R. 17).
At Step Four, the ALJ found that Plaintiff had no past relevant work, so she proceeded to
Step Five. (R. 25). The ALJ then used a vocational expert (“VE”) to determine whether or not a
significant number of jobs existed in the national economy that Plaintiff can perform. The VE
testified that, based on Plaintiff’s age, education, past relevant work experience, and RFC,
Plaintiff could perform jobs that exist in significant numbers in the national economy, such as
packer and sorter. (R. 26; 72-73). Accordingly, the ALJ found that Plaintiff has not been under
a disability as defined by the Act since her application date of January 18, 2013. (R. 27).

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IV.

Legal Analysis
Plaintiff’s primary challenge1 to the ALJ’s decision in this case is to her Step 3 finding

that Plaintiff’s severe impairment of borderline intellectual functioning does not meet or equal
the listing for intellectual disability at Section 12.05 of the regulations.2 In particular, Plaintiff
contends that the ALJ erroneously rejected a Full Scale IQ score of 67 assessed upon cognitive
evaluation by Psychologist Lindsey A. Groves in August of 2011, which, if accepted, would
meet the C criteria of Listing 12.05. She further argues that in rejecting that low IQ score the
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The Court has considered Plaintiff’s other challenges to the ALJ’s evaluation of
Plaintiff’s severe impairment of obesity, alone and in combination with her severe impairment of
asthma, at Steps 3 and 5 of the sequential evaluation process and finds them to be without merit.
SSR 02-1p recognizes that obesity is a medically determinable impairment and that “the
combined effects of obesity with other impairments can be greater than the effects of each of the
impairments considered separately.” 2002 WL 34686281, at *1 (Sept. 12, 2002). Accordingly,
the ruling instructs the ALJ “to consider the effects of obesity not only under the listings but also
when assessing a claim at other steps of the sequential evaluation process, including when
assessing an individual’s residual functional capacity.” Id.; see also 20 C.F.R., Pt. 404, Subpt P,
Appx. 1, §§ 1.00Q and 3.00O (formerly 3.00I).
The ALJ in this case expressly found obesity to be a severe impairment, addressed it at
Step 3, acknowledged the applicability of SSR 02-1p, and indicated that she considered
Plaintiff’s weight in her decision. (R. 14; 22). Plaintiff does not specify in what way obesity
would affect her residual functional capacity beyond the limitations the ALJ found and points to
no evidence in the record supporting any additional functional limitations. Moreover, the ALJ
relied on the medical evidence from Plaintiff’s treating physicians as the basis for her RFC, and
none of those sources suggested any further limitations in Plaintiff’s ability to work based on her
weight, although they obviously were aware of her obesity. See Rutherford v. Barnhart, 399
F.3d 546, 552-53 (3d Cir. 2005) (ALJ’s reliance on medical evidence from sources who were
aware of claimant’s obesity but did not mention obesity as contributing to any limitations was
“satisfactory, if indirect” consideration of evidence even where ALJ did not even mention
obesity in decision). The Court is satisfied that the ALJ adequately addressed, both directly and
indirectly, obesity and its effects, alone and in combination with Plaintiff’s other impairments, at
each step of the sequential evaluation process and that her evaluation is supported by substantial
evidence.
2

Listing 12.05 was revised significantly effective January 17, 2017. See Revised Medical
Criteria for Evaluating Mental Disorders, 81 F.R. 66138-01, 2016 WL 5341732 (Sept. 26, 2016).
However, this Court will review the ALJ’s decision using the rules in effect at the time the
decision was issued. See id. at 66138 n.1. On remand, it is presumed the ALJ will use the
revised listing for the entire period at issue but will leave that decision to the Commissioner.
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ALJ improperly ignored not only Dr. Groves’ report but also other diagnoses of mental
retardation contained in the record.
While Plaintiff’s argument that the ALJ did not set forth adequate reasons for rejecting
the validity of the IQ score assessed by Dr. Groves has merit, the Court does not agree that the
record is sufficient to establish that ipso facto she met Listing 12.05 as it existed at the time of
the ALJ’s decision, as the ALJ also determined that Plaintiff did not meet the introductory
criteria of that listing, which required “deficits in adaptive functioning initially manifested …
before age 22.” However, because the ALJ did not adequately explain the methodology she
utilized in determining that Plaintiff did not meet the introductory criteria of the pre-revision
Listing 12.05, this Court cannot determine whether that finding is supported by substantial
evidence, and this case will be remanded to the Commissioner for further analysis.
At the time of the ALJ’s decision, Listing 12.05 provided in pertinent 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, Appx. 1, § 12.05.
In this case, the record shows that at age 28, Plaintiff was administered a Wechsler Adult
Intelligence Scale – Fourth Edition IQ test by Dr. Groves in August of 2011, which reflected a
Verbal Comprehension score of 78, a Perceptual Reasoning score of 73 and a Full Scale IQ score
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of 67. (R. 252). If valid, Plaintiff’s Full Scale IQ score of 67 would have satisfied the criteria of
Listing 12.05C in effect at the time of the ALJ’s decision.3
While acknowledging that Plaintiff’s Full Scale IQ score of 67 was “extremely low” and
that it placed her in the range of mild mental retardation, the ALJ nevertheless rejected that score
because the “weight of the evidence indicates … that plaintiff functions in the borderline
intellectual functioning range.” (R. 14). In rejecting the validity of the score, the ALJ relied on
numerous factors, including that the Full Scale IQ score of 67 is inconsistent with the results of
prior intelligence testing revealing a Full Scale IQ score of 84 in May of 1988 and a Binet testing
IQ score of 75 assessed in 1989; that Plaintiff was able to graduate from high school with special
education assistance; that her treating psychiatrist, Dr. Shirley John, described Plaintiff as being
of “average” intelligence; and, that the “totality of the evidence” indicates that Plaintiff is
independent in her personal care and her daily activities and that she engages in regular social
activities. (R. 14-15).
In arriving at a determination of whether an IQ score is valid, the ALJ is to consider the
entire record before her. See Schmidt v. Comm’r of Soc. Sec., 2013 WL 1386881, at *1 n. 1
(W.D. Pa. April 4, 2013); Manigault v. Astrue, 2009 WL 1181253, at *9 (W.D. Pa. Apr. 30,
2009) (citations omitted). While it is true that an ALJ is not required to accept a claimant’s IQ
scores and may reject scores that are inconsistent with the record, see Markle, 324 F.3d at 186,
3

The version of Listing 12.05C effective at the time of the ALJ’s decision required a
claimant to 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 applicable regulations only required that one of the three IQ scores be in the 60
through 70 range. 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, §12.00D.6.c; Markle v. Barnhart, 324
F.3d 182, 186 (3d Cir. 2003). The second prong of 12.05C was satisfied by a finding that the
“other” impairment is “severe” within the meaning of Step 2 of the sequential evaluation
process. Markle, 324 F.3d at 188; 65 F.R. 50746, 2000 WL 1173632, at 50772 (Aug. 21, 2000).
Here, the ALJ found that Plaintiff has the “other” severe impairments of depression, anxiety,
obesity, and asthma.
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neither may “[a]n ALJ ... reject IQ scores based on personal observations of the claimant and
speculative inferences drawn from the record.” Morales, 225 F.3d at 318.
Here, as in Markle, the Court does not believe that the ALJ’s rejection of Plaintiff’s Full
Scale IQ score of 67 is supported by substantial evidence. Of particular significance, the Court
does not believe that the ALJ gave appropriate consideration to the narrative report from Dr.
Groves discussing the results of her cognitive evaluation. The regulations expressly recognize
that “the narrative report that accompanies the test results should comment on whether the IQ
scores are considered valid and consistent with the developmental history and degree of
functional limitation.” 20 C.F.R., Pt. 404, Subpt. P, Appendix 1 §12.00D.6. Accordingly, the
commentary accompanying an IQ score should be consulted in evaluating the credibility of the
test result. Cortes v. Comm’r of Soc. Sec., 255 Fed. Appx. 646, 652 n 4 (3d Cir. 2007).
Here, in her narrative report Dr. Groves explicitly found the IQ results to be “valid” and
“reflective of [Plaintiff’s] current level of functioning.” (R. 252). She reported that Plaintiff’s
Full Scale IQ score of 67 places her in the 1st percentile of adults of her age and indicates “a
present overall ability that was in the Extremely Low range of intellectual functioning.” (Id.).
In addition, Plaintiff’s subtest scores indicate that her ability to efficiently process information is
“severely impaired” and that her visual short-term memory, psychomotor and processing speed,
and motor coordination are “significantly delayed.” (R. 253). Overall, Dr. Groves concluded
that Plaintiff’s cognitive impairments and IQ scores place her in the range of mild mental
retardation. (Id.).
Although the ALJ briefly alluded to the fact that Dr. Groves considered Plaintiff’s scores
to be valid, she brushed that opinion aside as being against the weight of the evidence for the
reasons set forth above. However, as just discussed, the Full Scale IQ score of 67 is consistent

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with the other subtest results of Dr. Groves’ evaluation and the record contains no other
contemporaneous opinion from any psychologist or other medical expert contradicting the IQ
results or indicating a higher current level of intellectual functioning. See Markle, 324 F.3d at
187. To the contrary, although Plaintiff’s treating psychiatrist Dr. John indicated that Plaintiff’s
“intelligence appears to be average” her axis II diagnosis nevertheless included mental
retardation. (R. 330-31). Likewise, the state agency psychologist, Dr. Rings, did not appear to
question the validity of the scores assessed by Dr. Groves and in fact acknowledged that
Plaintiff’s IQ score falls in the mild mental retardation range. (R. 85).
With no medical opinion evidence to support it, the ALJ’s conclusion that Plaintiff
“functions in the borderline intellectual functioning range” appears to be based on nothing more
than speculative inferences drawn from the record. However, this is not a situation where the
psychologist conducting the test questioned the validity of the results or diagnosed Plaintiff with
borderline intellectual functioning. See Manigault, 2009 WL 1181253, at * 9 (psychologist who
diagnosed claimant with borderline intellectual functioning rather than mild mental retardation,
despite IQ scores in the 61-70 range, implicitly found scores to be invalid.). Nor is there any
evidence suggesting that Plaintiff was malingering or deliberately attempting to distort the test
results. See Miller v. Astrue, 2011 WL 2580516, at *6 n.10 (W.D. Pa, June 28, 2011). And, as
in Markle, the various daily activities and social activities in which Plaintiff engages likewise are
not necessarily inconsistent with mild mental retardation.
In rejecting the validity of the Full Scale IQ score of 67 assessed by Dr. Groves when
Plaintiff was 28, the ALJ also pointed to the inconsistency of that result with the childhood IQ
scores assessed when Plaintiff was 5 and 6 years old, as well as her graduation from high school
through special education classes. However, rather than being a basis to reject the validity of

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Plaintiff’s current IQ scores, the childhood IQ scores and her scholastic record more aptly should
have been considered in determining whether Plaintiff’s current deficits in adaptive functioning
manifested prior to age 22, which brings the Court to the issue necessitating remand in this case.
In order for a claimant's impairment to meet a listing, it must satisfy all of the specified
criteria of the listing at issue. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990); 20 C.F.R.
416.925(d). Accordingly, at the time of the ALJ’s decision, in addition to the criteria of at least
one of the A through D provisions, the claimant also was required to meet the introductory
criteria of Listing 12.05. 4 The requirement that the claimant meet the introductory criteria to
Listing 12.05 clearly and unequivocally was stated in the explanatory notes to the pre-revision
mental disorder listings. See 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 12.00A (if claimant’s
impairment satisfies diagnostic description in introductory paragraph and any one of the four sets
of criteria in A through D, the impairment meets Listing 12.05). The United States Court of

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The revised Listing 12.05 effective January 17, 2017, significantly alters the criteria of
the listing. The revision divides the listing into A and B criteria, and indicates that it may be
satisfied by meeting either. The A criteria requires all three of the following: “significantly
subaverage general intellectual functioning evident in your cognitive inability to function at a
level required to participate in standardized testing of intellectual functioning”; and, “significant
deficits in adaptive functioning currently manifested by your dependence upon others for
personal needs (for example, toileting, eating, dressing, or bathing)”; and “[t]he evidence about
your current intellectual and adaptive functioning and about the history of your disorder
demonstrates or supports the conclusion that the disorder began prior to your attainment of age
22.” The B criteria requires all three of the following: “significantly subaverage general
intellectual functioning evidenced by” either “[a] full scale (or comparable) IQ score of 70 or
below on an individually administered standardized test of general intelligence”; or “[a] full
scale (or comparable) IQ score of 71–75 accompanied by a verbal or performance IQ score (or
comparable part score) of 70 or below on an individually administered standardized test of
general intelligence”; and, “significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the following areas of mental function:
understand, remember, or apply information (see 12.00E1)”; or “interact with others (see
12.00E2)”; or “concentrate, persist, or maintain pace (see 12.00E3)”; or “adapt or manage
oneself (see 12.00E4)”; and, “the evidence about your current intellectual and adaptive
functioning and about the history of your disorder demonstrates or supports the conclusion that
the disorder began prior to your attainment of age 22.”
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Appeals for the Third Circuit likewise had indicated that a claimant was required to satisfy the
criteria of the introductory paragraph of former Listing 12.05. See Gist v. Barnhart, 67 Fed.
Appx. 78, 81 (3d Cir. 2003) (holding that “[a]s is true in regard to any 12.05 listing, before
demonstrating the specific requirements of Listing 12.05C, a claimant must show proof of a
‘deficit in adaptive functioning' with an initial onset prior to age 22”); Cortes, 255 Fed. Appx. at
651 (to meet Listing 12.05, the claimant must prove, inter alia, “‘subaverage general intellectual
functioning with deficits in adaptive functioning’ manifesting before age 22”). See also Illig v.
Comm’r of Soc. Sec., 570 Fed. Appx. 262, 266 n. 9 (3d Cir. 2014) (“We will assume without
deciding that showing deficits in adaptive functioning is a fourth requirement of Listing
12.05C.”).
In her decision, in addition to rejecting the validity of Plaintiff’s current IQ score, the
ALJ also found that Plaintiff did not meet the introductory criteria of prior Listing 12.05
requiring “significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period.” (R. 15). In making this
determination, the ALJ relied extensively on the assessment by the state agency psychologist,
who found that Plaintiff does not meet the capsule definition because “she is able to cook, to care
for her person independently, she can go out on her own and she can shop.” (R. 85). The ALJ,
with little additional analysis, gave this opinion substantial weight and concluded that Plaintiff
did not meet the preface to Listing 12.05. (R. 15). Because the Court cannot meaningfully
determine the ALJ’s basis for finding that Plaintiff did not meet the requirement of having
deficits in adaptive functioning manifested before age 22, this Court must conclude that the
ALJ’s finding is not supported by substantial evidence, and will remand this case to the ALJ for

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additional evaluation. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (requiring the
ALJ to sufficiently explain his findings to permit meaningful review).
The regulations in effect at the time the ALJ issued her decision did not define “deficits
of adaptive functioning,” nor did they identify guidelines by which to assess the existence or
severity of a claimant’s alleged deficits.5 See Logan v. Astrue, 2008 WL 4279820, at *8 (W.D.
Pa., Sept. 16, 2008). However, the SSA previously issued a regulation entitled “Technical
Revisions to Medical Criteria for Determinations of Disability”, 67 F.R. 20018-01, 2002 WL
661740 (April 24, 2002), to provide guidance on the matter. In that regulation, the SSA
recognized that each of the four leading professional mental health organizations in the United
States that deal with intellectual disabilities defines “deficits in adaptive functioning” in a
slightly different manner.6 See Logan, 2008 WL 4279820, at *8. These various definitions all

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The revised regulations set forth rules on the documentation and evaluation of intellectual
disorders under Listing 12.05. See 20 C.F.R., Pt 404, Subpt P, Appx 1, § 12.00H. Included are
rules for establishing deficits in adaptive functioning at § 12.00H3. Adaptive functioning now is
defined as referring to “how you learn and use conceptual, social, and practical skills in dealing
with common life demands. It is your typical functioning at home and in the community, alone
or among others.” § 12.00H3a. Significant deficits in adaptive functioning are identified “based
on your dependence on others to care for your personal needs, such as eating and bathing. We
will base our conclusions about your adaptive functioning on evidence from a variety of sources
(see 12.00H3b) and not on your statements alone.” Id.
6

For example, the American Psychiatric Association most recently stated that deficits in
adaptive functioning “refer to how well a person meets community standards of personal
independence and social responsibility, in comparison to others of similar age and sociocultural
background.” Diagnostic and Statistical Manual of Mental Disorders (DSM-V) 37 (5th ed.,
American Psychiatric Ass’n 2013). Such deficits “limit functioning in one or more activities of
daily life, such as communication, social participation, and independent living, across multiple
environments, such as home, school, work, and community.” Id. at 33. Further, adaptive
functioning involves reasoning in three domains: “The conceptual (academic) domain involves
competence in memory, language, reading, writing, math reasoning, acquisition of practical
knowledge, problem solving, and judgment in novel situations, among others. The social
domain involves awareness of others’ thoughts, feelings, and experiences; empathy;
interpersonal communication skills; friendship abilities; and social judgment, among others. The
practical domain involves learning and self-management across life settings, including personal
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require significant deficits in intellectual functioning, but differ as to the age of onset and the
method of measuring the required deficits in adaptive functioning. Id. The SSA clarified that it
did not seek to endorse the methodology of one professional organization over another, and
would allow use of any of the measurement methods endorsed by one of the professional
organizations. Id. In order to assess a claimant’s alleged intellectual disability to determine if
deficits in adaptive functioning exist, the regulation directed that an ALJ should consult either
the American Psychiatric Association’s DSM-V, the standard set forth by the American
Association on Intellectual and Developmental Disabilities or the criteria of the other major
mental health organizations. Id.
In this case, it does not appear from the ALJ’s decision that she consulted any
organization’s standard for measuring deficits in adaptive functioning in concluding that Plaintiff
does not meet that criterion. In fact, the ALJ simply adopted the conclusory opinion of the state
agency psychologist without any further analysis. Because the ALJ’s assessment of whether
Plaintiff has “deficits in adaptive functioning” fails to comply with the SSA’s regulatory

care, job responsibilities, money management, recreation, self-management of behavior, and
school and work task organization, among others.” Id. at 37. This criterion is met when at least
one of these three domains of adaptive functioning is sufficiently impaired that ongoing support
is needed in order for the person to perform adequately in one or more life settings at school, at
work, at home, or in the community. Id. at 38.
The standard for intellectual disability set forth by the American Association of Mental
Retardation (now the American Association on Intellectual and Developmental Disabilities)
includes “significant limitations in intellectual functioning and in adaptive behavior as expressed
in conceptual (i.e., receptive and expressive language, reading and writing, money concepts, and
self-direction); social (i.e., interpersonal, responsibility, self-esteem, gullibility, naiveté, follows
rules, obeys laws, and avoids victimization); and practical adaptive skills (i.e., personal activities
of daily living such as eating, dressing, mobility and toileting; instrumental activities of daily
living such as preparing meals, taking medication, using the telephone, managing money, using
transportation, and doing housekeeping activities; maintaining a safe environment, and
occupational skills).” Logan, 2008 WL 4279820, at *8 n.4 (citing Manual of Diagnosis and
Professional Practice in Mental Retardation (American Ass’n on Mental Retardation, 1993)).
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directive, effective at the time, to identify the standard she used to determine that Plaintiff does
not meet the introductory criterion to Listing 12.05, she failed to sufficiently explain her findings
to permit meaningful review. Accordingly, the ALJ’s Step 3 finding is incomplete and remand is
required for reconsideration of whether Plaintiff has established deficits in adaptive functioning
and whether such deficits manifested prior to age 22. While the Court takes no position as to
whether, on remand, Plaintiff should be found to have met Listing 12.05, it does find a more
focused analysis as to the application of Listing 12.05C is required in this case.7
V.

Conclusion
Because the record does not permit the Court to determine whether substantial evidence

exists to support the ALJ’s determination at Step Three that Plaintiff does not meet Listing
12.05, the Court finds that substantial evidence does not support the ALJ’s decision in this case.
The Court hereby remands this case to the ALJ for reconsideration consistent with this Order.

_s/ Alan N. Bloch___________________
Alan N. Bloch
United States District Judge
ecf:

Counsel of record

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Because the Court is remanding the case on this ground, it does not reach the other issue raised by
Plaintiff regarding the ALJ’s evaluation of her cognitive impairment at Step 5 of the sequential evaluation
process. On remand, the ALJ should consider Plaintiff’s concerns in determining whether any additional
restrictions to Plaintiff’s RFC resulting from her cognitive impairments, including, in particular, any
additional restrictions arising from Plaintiff’s difficulties in concentration, are appropriate.

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