UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-1511


HAROLD L. KISER,

                     Plaintiff - Appellant,

              v.

ANDREW SAUL, Commissioner of Social Security,

                     Defendant - Appellee.


Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:17-cv-00739-FDW)


Submitted: June 1, 2020                                           Decided: July 30, 2020


Before WILKINSON and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Reversed and remanded by unpublished opinion. Judge Floyd wrote the opinion in which
Judge Wilkinson joined. Judge Traxler wrote a separate dissenting opinion.


George C. Piemonte, Charlotte, North Carolina, Denise A. Sarnoff, MARTIN, JONES, &
PIEMONTE, Decatur, Georgia, for Appellant. R. Andrew Murray, United States Attorney,
Charlotte, North Carolina, Gill P. Beck, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina; Stephen Dmetruk,
Special Assistant United States Attorney, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Seattle, Washington, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
FLOYD, Circuit Judge:

       This appeal follows an action for review of a final decision of Defendant-Appellee

Andrew Saul, the Commissioner of Social Security (the “Commissioner”), denying

Plaintiff-Appellant Harold L. Kiser’s application for a period of disability and disability

insurance benefits under Title II of the Social Security Act (the “Act”) and supplemental

security income under Title XVI of the Act. The sole issue on appeal is whether the

Administrative Law Judge (ALJ), in finding that Kiser was not disabled, afforded proper

weight to an earlier decision by the North Carolina Department of Health and Human

Services (NCDHHS) finding that Kiser was disabled (the “Medicaid Decision”). For the

reasons that follow, we hold that the ALJ did not. Accordingly, we reverse the district

court’s judgment and remand with instructions to vacate the denial of benefits and remand

for further administrative proceedings.



                                            I.

       Before turning to the facts of Mr. Kiser’s case, we outline the approach that the

Commissioner takes to evaluating social security disability claims.

       In evaluating whether an individual is disabled, the Commissioner uses a five-step

process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Under this process, an ALJ

evaluates, in sequence, whether the claimant: “(1) worked during the alleged period of

disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impairment; (4) could return to her past relevant work; and (5) if




                                            2
not, could perform any other work in the national economy.” Hancock v. Astrue, 

, 472 (4th Cir. 2012) (citing 20 C.F.R. § 416.920(a)(4)).

       Importantly, at step three, if a claimant fails to demonstrate that they have a

disability that meets or medically equals a listed impairment, the ALJ must assess the

claimant’s residual functional capacity (RFC) before proceeding to step four, which is “the

most [the claimant] can still do despite [her physical and mental] limitations [that affect

h[er] ability to work].”    Lewis v. Berryhill, 

, 861–62 (4th Cir. 2017)

(alterations in original) (quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)). An ALJ

may define the claimant’s RFC “in terms of the exertional levels of work, sedentary, light,

medium, heavy, and very heavy.”

61 Fed. Reg. 34474 (July 2,

1996)); see also 20 C.F.R. §§ 404.1567, 416.967 (defining “sedentary, light, medium,

heavy, and very heavy” exertional requirements of work).

       For the first four steps, the claimant has the burden of production. Monroe v. Colvin,

, 179–80 (4th Cir. 2016). “If the claimant fails to carry that burden at any

step, she is determined not to be disabled.” 

. “If the claimant does

meet her burden of proof, the burden then shifts to the Commissioner at step five.”

of disability can be made at any step, then the ALJ need not analyze

subsequent steps. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).



                                             II.

       Mr. Kiser is a fifty-three-year-old male who suffers from a plethora of ailments. In

July 2009, he was hospitalized for multiple conditions, including respiratory failure, renal


                                             3
failure, and pancreatitis, and he fell into a prolonged coma. In December 2009, he applied

for supplemental security income, alleging that he became disabled as of the July 2009

hospitalization. On December 1, 2011, for reasons that are not germane to the current

appeal, an ALJ denied Kiser’s claim. On October 26, 2012, the Appeals Council denied

Kiser’s request for review of the ALJ’s decision.



                                            A.

       In February 2013, Kiser applied for Medicaid benefits in North Carolina. His

application was initially denied, so he appealed to the NCDHHS. On August 14, 2013,

applying the same five-step test employed for social security disability benefits discussed

above, the NCDHHS issued the Medicaid Decision finding that Kiser was disabled and

therefore eligible for Medicaid benefits. Importantly, at step three, the NCDHHS found

that Kiser “equal[ed] the disability requirement referenced in 20 [C.F.R. §] 416. 920(d),

Appendix 1, Listing 12.05C, which directs a finding of disabled.” Administrative Record

(A.R.) 341.




                                            4
       At the relevant time, 1 Listing 12.05 provided the listed impairment for an

intellectual disability. 2 See 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 12.05 (effective

January 2, 2015). Listing 12.05(C) had three prongs. See 

(discussing Listing 12.05(C)).     First, it required a showing of “deficits in adaptive

functioning initially manifested during the developmental period; i.e., the evidence

demonstrates or supports onset of the impairment before age 22” (Prong 1). 20 C.F.R. Part

404, Subpt. P, App. 1, Listing 12.05. It also required a “valid verbal, performance, or full

scale IQ of 60 through 70” (Prong 2) and “a physical or other mental impairment imposing

an additional and significant work-related limitation of function” (Prong 3).

          The Commissioner revised the listings regarding mental disorders effective
January 17, 2017, to reflect, among other things, “advances in medical knowledge.”
Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66,138, 66,138
(Sept. 26, 2016). However, the version of the listings in effect as of the date of the
Commissioner’s final decision controls. See

n.1 (“We expect that Federal
courts will review our final decisions using the rules that were in effect at the time we
issued the decisions.”). As discussed below, because the Appeals Council denied Kiser’s
request for review, the ALJ’s decision is the final decision, and we consider Listing
12.05(C) as it existed before it was overhauled. See 20 CFR § 404.900(a)(4)–(5); Sims v.
Apfel, 

, 107 (2000) (“[I]f, as here, the Council denies the request for review,
the ALJ’s opinion becomes the final decision.”).
        2
          Listing 12.05 has had a change in nomenclature over the years. At the time of the
Medicaid Decision, Listing 12.05 provided the listed impairment for “mental retardation.”
Effective September 3, 2013, the Social Security Administration replaced the term mental
retardation with the term intellectual disability. Change in Terminology: “Mental
Retardation” to “Intellectual Disability,” 78 Fed. Reg. 46,499 (Aug. 1, 2013). The change
was merely a change in form, not substance, and “d[id] not affect how [the Social Security
Administration] evaluate[s] a claim based on ‘intellectual disability’ under listing 12.05.”

The current version of Listing 12.05 uses the term “intellectual disorder.”
However, to avoid confusion, we will use the nomenclature as existed at the time of the
ALJ’s decision, namely “intellectual disability.”
                                             5
                                             B.

       In December 2012, before the Medicaid Decision, Kiser again applied for

supplemental security income—this time also applying for disability insurance benefits and

a period of disability. A.R. 34. Kiser claimed disability based on memory loss, prostate

cancer, arthritis, obstructive sleep apnea, hypertension, diabetes, renal failure, pneumonia,

and pancreatitis. A.R. 295.

       Kiser’s claim was initially denied and denied again upon reconsideration. Kiser

filed a request for rehearing, and an ALJ held a video hearing on September 8, 2014. In a

written decision issued on May 7, 2015, the ALJ employed the five-step sequential

evaluation. 3 At step one, the ALJ found that Kiser had not engaged in substantial gainful

activity since July 21, 2009. At step two, the ALJ found that Kiser had the following severe

impairments that “more than minimally limit [his] ability to perform basic work activities”:

prostate cancer, urinary tract disorder, degenerative disc disease, and an organic mental

disorder. A.R. 37–38.

       At step three, the ALJ found that Kiser’s impairments did not, individually or in

combination, meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart

P, Appendix 1. As to Kiser’s claimed mental impairments, the ALJ held that they did not

“meet or medically equal the criteria of listing 12.02, or any other listing.” A.R. 40. In

particular, the ALJ considered whether Listing 12.02 (the listing for “Organic Mental


       3
         As discussed above, on December 1, 2011, a prior ALJ denied Kiser’s previous
application for supplemental security income. Therefore, even though Kiser claimed in his
current application a disability onset date of July 21, 2009, the ALJ held that Kiser’s
disability claim from July 21, 2009 to December 1, 2011 was barred under the doctrine of
res judicata.
                                             6
Disorders”) was satisfied and held that the requirements set forth in paragraph (B) of that

listing were not met. Paragraph (B) of Listing 12.02 required at least two of the following:

(1) marked restriction of activities of daily living; (2) marked difficulties in maintaining

social functioning; (3) marked difficulties in maintaining concentration, persistence, or

pace; or (4) repeated episodes of decompensation, each of extended duration. As to

restriction of activities of daily living, the ALJ found that Kiser had a mild (i.e., not marked)

restriction. As to social functioning and issues with concentration, persistence, or pace,

the ALJ said that Kiser had only moderate (again, not marked) difficulties. And the ALJ

found no evidence of repeated episodes of decompensation of extended duration.

Consequently, the ALJ found that Listing 12.02 was not met or medically equaled. 4 After

considering the whole record, the ALJ held that Kiser had the RFC to perform a reduced

range of only sedentary work.

       In analyzing step three, the ALJ mentioned briefly the Medicaid Decision and that

Kiser had been found disabled under the listing for intellectual disabilities, Listing

12.05(C). A.R. 48. But the ALJ gave “[t]his opinion . . . minimal weight” and stated that

it was “not binding on our agency.” A.R. 48. According to the ALJ, the record before him

did not support the Medicaid Decision. First, the ALJ stated that Kiser had reported on

multiple occasions that he performs his daily activities independently, indicating only mild

limitations in that area. Second, the ALJ reasoned that Kiser’s history of memory

impairment supported only a moderate limitation in his concentration, persistence, and



       4
       The ALJ also briefly considered whether Listing 12.02(C) was met. However, the
ALJ quickly reasoned it was not.
                                               7
pace. Lastly, the ALJ said that he found the opinions of the “State agency medical and

psychological experts to be more accurate and persuasive.” A.R. 48.

       Turning to step four, the ALJ held that Kiser was unable to perform any of his past

relevant work (e.g., auto mechanic, electrician’s helper, or construction worker). Finally,

as to step five, the ALJ found that considering Kiser’s RFC, Kiser could perform

representative occupations such as document preparer/scanner, final assembler of optical

goods, or an addresser. Therefore, the ALJ found that Kiser was not disabled and denied

his application.

       On October 27, 2017, the Appeals Council denied Kiser’s request for review of the

ALJ’s decision.



                                            C.

       On July 6, 2018, Kiser filed a complaint in the United States District Court for the

Western District of North Carolina seeking judicial review of the ALJ’s decision.

       Presented with cross-motions for summary judgment, the district court awarded

summary judgment to the Commissioner and affirmed the ALJ’s decision. Importantly,

with regard to how the ALJ treated the Medicaid Decision, the district court held that the

ALJ provided “persuasive, specific, and valid reasons” for affording the Medicaid Decision

less than substantial weight. Kiser v. Berryhill, No. 3:17-CV-00739-FDW, 

, at *4 (W.D.N.C. Mar. 13, 2019) (quoting Woods v. Berryhill, 

, 692

(4th Cir. 2018)). In explaining why the ALJ properly considered Listing 12.02, rather than

12.05, the district court stated that the “ALJ reasonably believed the evidence contained in


                                             8
the record more appropriately supported evaluating for an organic mental disorder under

Listing 12.02.”

court observed that Kiser “raise[d] no

arguments for why Listing 12.05 was implicated by his impairments.”

court held that the ALJ’s decision to afford the Medicaid Decision less than

substantial weight was proper.

       Kiser timely appealed to this Court.



                                              III.

       We review the district court’s decision de novo, and we will affirm the ALJ’s

disability determination if the ALJ has applied the “correct legal standards and the ALJ’s

factual findings are supported by substantial evidence.” Shinaberry v. Saul, 

,

120 (4th Cir. 2020) (quoting Mascio v. Colvin, 

, 634 (4th Cir. 2015)).

       In this appeal we are presented with a single issue: whether the ALJ properly

afforded less than substantial weight to the Medicaid Decision.

       Although a “disability decision by another entity does not bind the SSA,” 

, the “default rule” is that an ALJ must give “substantial weight” to another

agency’s decision

In Woods, this Court held that an ALJ must give “substantial

weight” to a disability decision by the NCDHHS because both NCDHHS and Social

Security disability insurance benefits “serve the same governmental purpose of providing

benefits to persons unable to work because of a serious disability” and because NCDHHS’s

provision of Medicaid is for those who are considered disabled for social security purposes.

Comm’r of Soc. Sec. Admin., 

, 343 (4th Cir. 2012)).


                                               9
       Per Woods, an ALJ may afford another agency’s disability determination less than

substantial weight only if the ALJ provides “persuasive, specific, valid reasons for doing

so that are supported by the record.”

Massanari, 

,

1076 (9th Cir. 2002)). For example, an “ALJ could explain which aspects of the prior

agency decision he finds not credible and why, describe why he finds other evidence more

credible, and discuss the effect of any new evidence made available after NCDHHS issued

its decision.”

by the ALJ, a reviewing court “cannot engage

in meaningful review.”

       Here, we are convinced that the ALJ failed to provide “persuasive, specific, [and]

valid” reasons why he afforded less than substantial weight to the Medicaid Decision.

This is because the ALJ failed to consider whether the three prongs of Listing

12.05(C) were met or medically equaled; instead, the ALJ only analyzed the requirements

of Listing 12.02. In explaining why he was affording the Medicaid Decision minimal

weight, the ALJ stated that Kiser only had a mild impairment in performing his daily

activities independently, and a moderate memory impairment that affects his concentration,

persistence, and pace. However, these reasons pertain to the requirements of Listing

12.02(B), which require two of the four listed conditions, such as “[m]arked restriction of

activities of daily living” (Listing 12.02(B)(1)) and “marked difficulties in maintaining

concentration, persistence, or pace” (Listing 12.02(B)(3)).      The Medicaid Decision,

however, found that Kiser’s condition medically equaled Listing 12.05(C), not Listing

12.02. Simply put, the ALJ failed to analyze whether Kiser met or medically equaled

Listing 12.05(C). As a result, the reasons the ALJ proffered for affording minimal weight


                                            10
to the Medicaid Decision were non-responsive to the reasons why the NCDHHS found

Kiser disabled.

       Indeed, based on the record, it appears that Listing 12.05(C) was the appropriate

listing for analyzing Kiser’s cognitive impairments. For example, recall that prong two of

Listing 12.05(C) required a “valid verbal, performance, or full-scale IQ of 60 through 70.”

As the December 1, 2011 ALJ decision and Medicaid Decision outlined, intelligence

testing performed in 2010 after Kiser’s 2009 hospitalization yielded verbal, performance,

and full-scale IQ scores of 66, 69, and 65, respectively. A.R. 101, 340. These scores would

place Kiser squarely within the 60–70 IQ score range, thus satisfying prong two.

       Given that the ALJ failed to address whether Kiser met or medically equaled the

requirements of Listing 12.05(C), the ALJ’s reasons for not giving substantial weight to

the Medicaid Decision were non-responsive and, therefore, were neither persuasive,

specific, nor valid. For that reason, we vacate and remand for further consideration. 5




       5
           As discussed supra note 2, effective January 17, 2017, the Commissioner
significantly altered the listings for mental disorders and, among other things, removed
Listing 12.05(C). In amending the listings, the Commissioner stated that “[i]f 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.” 81 Fed. Reg. at 66,138 n.1. Thus,
according to the Commissioner, on remand an ALJ will apply the revised listings, not
Listing 12.05(C).

the revised listings, as proposed by the
Commissioner, may generate retroactivity concerns, we do not reach that issue here, as it
would be premature to do so.
                                              11
                                            IV.

       For the foregoing reasons, we reverse the district court’s judgment and remand

with instructions to vacate the denial of benefits and remand for further administrative

proceedings.

                                                           REVERSED AND REMANDED




                                            12
TRAXLER, Senior Judge, dissenting:

       The majority concludes that the ALJ failed to adequately explain why he gave

minimal weight to the Medicaid Decision finding Kiser’s condition equaled the impairment

in Listing 12.05, and the majority reverses the district court’s order and directs the case be

returned to the ALJ for reconsideration. In my view, the ALJ sufficiently explained why

he gave minimal weight to the Medicaid Decision, and substantial evidence supports the

ALJ’s denial of benefits. Because I would affirm the judgment of the district court, which

in turn affirmed the judgment of the ALJ, I respectfully dissent.

                                              I.

       While Kiser’s claim for Social Security disability benefits and supplemental

security income was pending, a North Carolina state agency determined that Kiser was

disabled and therefore qualified for Medicaid benefits. The Medicaid Decision determined

that Kiser qualified for Medicaid because his impairments medically equaled the severity

of the intellectual disability impairment of Listing 12.05(C).

       Although the Medicaid Decision is not binding on the ALJ, see 20 C.F.R. §

404.1504, the general rule is that an ALJ considering a disability claim must give

substantial weight to a state-agency’s disability finding. See Woods v. Berryhill, 

, 692 (4th Cir. 2018). The ALJ “may deviate from this default rule and accord [the]

disability decision less than substantial weight if the record before the ALJ clearly

demonstrates that such a deviation is appropriate.”

omitted).

“[I]n order to demonstrate that it is appropriate to accord less than substantial weight to

[the] disability decision, an ALJ must give persuasive, specific, valid reasons for doing so


                                             13
that are supported by the record.”

omitted). To provide a

valid reason for rejecting a state-agency finding, “an ALJ could explain which aspects of

the prior agency decision he finds not credible and why, describe why he finds other

evidence more credible, and discuss the effect of any new evidence. . . . This list is not

exclusive, but the point of this requirement—and of these examples—is that the ALJ must

adequately explain his reasoning; otherwise, we cannot engage in a meaningful review.”

                                            A.

       In this case, the ALJ gave minimal weight to the Medicaid Decision’s disability

finding. The ALJ explained that

       the record before me does not support [the finding of disability]. The
       claimant has reported on multiple occasions that he performs his activities of
       daily [living] independently, indicating only mild limitations in that area.
       Furthermore, the claimant’s history of memory impairment supports only
       moderate limitations in the claimant’s concentration, persistence, and pace
       and does not rise to listing severity. I find the opinions of the State agency
       medical and psychological experts to be more accurate and persuasive.

A.R. 48 (citations omitted).

       While the ALJ’s discussion may be somewhat abbreviated, 1 I believe it nonetheless

provides a sufficiently persuasive, specific, and valid explanation to require affirmance.

       The Medicaid Decision found that Kiser’s memory difficulties and reduced

intellectual functioning were severe impairments that significantly limited his ability to


       1
         The ALJ also stated that the Medicaid Decision was based on different standards
and was not binding on the ALJ. As we explained in Woods, such generic objections to a
state-agency finding do not amount to persuasive or specific reasons justifying a decision
to give less than substantial weight to the finding. See Woods v. Berryhill, 

,
693 (4th Cir. 2018).
                                            14
work and thus rendered him disabled. The ALJ gave those findings minimal weight

because the record evidence the ALJ found credible did not support the conclusion that

Kiser’s limitations were severe. A conflict with record evidence is clearly a valid and

persuasive reason to give minimal weight to the Medicaid Decision. See 

(explaining that “an ALJ could explain which aspects of the prior agency decision

he finds not credible and why, [and] describe why he finds other evidence more credible”).

       The ALJ pointed to specific areas where the record conflicted with the severe-

impairment findings of the Medicaid Decision – Kiser was only mildly limited in his ability

to independently perform his activities of daily living; Kiser had only moderate limitations

in concentration, persistence, and pace; and the state-agency consultants found most

credible by the ALJ determined that Kiser had mild memory and cognitive limitations. As

to these points, the ALJ’s view is supported by substantial evidence in the record.

       Kiser was working full-time as a car mechanic until July 2009, when he was

hospitalized and in a coma for a month. Kiser has suffered from memory loss and

concentration problems since recovering from the coma. Kiser has been unable to return

to his previous work. Medical records describe Kiser as presently suffering from “mild

cognitive impairment” and “mild memory deficits.” A.R. 591, 1011. The ALJ gave “great

weight,” A.R. 47, to the state agency’s psychological consultants, who concluded that Kiser

was not disabled. See A.R. 133, 151. Those consultants reported that Kiser had mild

cognitive impairment that moderately limited his ability to maintain social functioning and

to maintain concentration, persistence, and pace, but did not significantly limit his ability

to, inter alia, understand and remember short, simple instructions; interact with peers or


                                             15
co-workers; make simple, work-related decisions; or sustain an ordinary routine without

special supervision. See A.R. 126, 130-31, 148-49.        This evidence easily clears the

substantial-evidence threshold and supports the ALJ’s determination that Kiser suffered

from mild cognitive impairment that did not prevent him from working sedentary jobs. See

Biestek v. Berryhill, 

, 1154 (2019) (“[T]he threshold for [substantial

evidence] is not high. Substantial evidence . . . is more than a mere scintilla. It means --

and means only -- such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.”) (citation and internal quotation marks omitted). This same

evidence also supports the ALJ’s decision to reject the Medicaid Decision -- which found

Kiser to be severely impaired -- as contrary to the record before the ALJ.

       Kiser, however, contends that the factors listed by the ALJ are not relevant under

Listing 12.05(C) and thus cannot constitute a valid reason to reject the Medicaid Decision.

I disagree. The question before the ALJ was the weight to be given the Medicaid

Decision’s finding that Kiser’s impairments medically equaled Listing 12.05(C). A listing

is medically equaled when its criteria are not met, but an impairment is “at least equal in

severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a)

(emphasis added). Although the factors identified by the ALJ are not criteria under Listing

12.05, they nonetheless are relevant to determining the extent of Kiser’s impairment, which

is a necessary step when determining whether his impairments at least equaled the severity

of Listing 12.05(C). The ALJ therefore did not err by considering evidence of the extent

of Kiser’s impairment in areas other than those set out in Listing 12.05(C). See 20 C.F.R.

§ 404.1526(c) (“When we determine if your impairment medically equals a listing, we


                                            16
consider all evidence in your case record about your impairment(s) and its effects on you

that is relevant to this finding.”).

                                              B.

       To the extent Kiser now contends that the ALJ should have considered whether

Kiser met (as opposed to medically equaled) the criteria of Listing 12.05(C), 2 I again

disagree. Listing 12.05 governs claims of intellectual disability, a lifelong disability that

involves low IQ along with adaptive deficits appearing before age 22. See 20 C.F.R. Pt.

404, Subpt. P, App. 1, Listing 12.05 (effective January 2, 2015). Listing 12.02 -- the

Listing applied by the ALJ -- governs claims of disability because of a decline in cognitive

function. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.02 (explaining that Listing

12.02 is used to evaluate an impairment causing an “abnormal mental state and loss of

previously acquired functional abilities”).

       Although Kiser received low scores on IQ tests given through the years, he

supported himself until 2009 by working as a heavy equipment operator, electrician’s

helper, groundskeeper, and car mechanic. As noted, he was working full time as a

mechanic until July 2009, when he was hospitalized and in a coma for a month. In his

2012 application for disability benefits, Kiser asserted that he became disabled in July

2009, when he was hospitalized and in an extended coma. See A.R. 279. In a brief

submitted to the ALJ in 2014, counsel for Kiser likewise focused on Kiser’s memory loss




       2
        As discussed above, the ALJ concluded that Kiser’s impairments did not medically
equal Listing 12.05(C) when he rejected the Medicaid Decision as contrary to the record.
                                              17
following his hospitalization. See A.R. 346. Kiser never contended he was entitled to

benefits because he met the criteria of Listing 12.05(C). 3

       Moreover, the mere existence of IQ scores in the range shown in this record does

not, in and of itself, establish disability under Listing 12.05(C); there must also be evidence

of adaptive deficits. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 12.05 (“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.”);

12.05 contains an introductory paragraph with the diagnostic

description for intellectual disability. It also contains four sets of criteria (paragraphs A

through D). If your impairment satisfies the diagnostic description in the introductory

paragraph and any one of the four sets of criteria, we will find that your impairment meets

the listing.”). Given Kiser’s history of skilled work, the absence of any professional

assessment concluding that Kiser met the criteria of Listing 12.05, and Kiser’s failure to

argue to the ALJ that he qualified as intellectually disabled under Listing 12.05(C), I do

not believe the ALJ erred by evaluating Kiser’s claim under Listing 12.02 rather than

12.05(C).

                                              II.

       I believe substantial evidence supports the ALJ’s determination that Kiser suffered

from mild cognitive impairments that did not prevent him from working. The conclusion



       3
         Indeed, when seeking review of the ALJ’s decision by the Appeals Council, Kiser
did not argue that the ALJ erred by not evaluating his claim under Listing 12.05(C).
                                              18
of the Medicaid Decision that Kiser suffered from significant mental impairments that

equaled the severity of Listing 12.05(C) was inconsistent with the ALJ’s understanding of

the record evidence, and that inconsistency provided a persuasive, specific, and valid

reason for the ALJ to give minimal weight to the Medicaid Decision. Because the ALJ

adequately explained his reasoning and his factual findings about the scope of Kiser’s

limitations are supported by substantial evidence, I would affirm the judgment of the

district court, which in turn affirmed the judgment of the ALJ.

       Accordingly, for the foregoing reasons, I respectfully dissent.




                                            19