P. BRADLEY MURRAY, Magistrate Judge.
Plaintiff Alexis D. Kyles brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying her claim for Supplemental Security Income ("SSI"), based on disability. (Doc. 1). The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 15 ("In accordance with the provisions of 28 U.S.C. 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.")). Upon consideration of the administrative record, Kyles's brief, the Commissioner's brief, and the arguments of counsel at the April 26, 2017 hearing before this Court, it is determined that the Commissioner's decision denying benefits should be reversed and remanded.
Kyles applied for SSI, based on disability, under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383d, on June 12, 2013. (Tr. 22). Her application was denied at the initial level of administrative review on August 28, 2013. (Tr. 82-86). On October 3, 2013, Kyles requested a hearing by an Administrative Law Judge (ALJ). (Tr. 87). After hearings were held on October 10, 2014, and April 6, 2015, the ALJ issued an unfavorable decision finding that Kyles was not under a disability from the date the application was filed through the date of the decision, April 24, 2015. (Tr. 22-31). Kyles appealed the ALJ's decision to the Appeals Council, which denied her request for review of the ALJ's decision on August 12, 2016. (Tr. 1-3). After exhausting her administrative remedies, Kyles sought judicial review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The Commissioner filed an answer and the social security transcript on December 15, 2016. (Docs. 7, 8). After both parties filed briefs setting forth their respective positions, the Court conducted a hearing on this matter on April 26, 2017. (Docs. 9, 10). The case is now ripe for decision.
Kyles alleges that the ALJ's decision to deny her benefits is in error for the following reasons:
1. The ALJ failed to consider whether Kyles's impairment or combination of impairments is of a severity to meet or medically equal the criteria of Listing 12.05C; and
2. The ALJ failed to give adequate weight to the opinions of consulting psychologists Dr. Tocci and Dr. Starkey.
(Doc. 9 at p. 2).
Kyles was born on May 17, 1995, and was 18 years old at the time she filed her claim for benefits. (Tr. 39, 22). Kyles initially alleged disability due to ADHD and anxiety. (Tr. 70, 211, 245). Kyles graduated from high school and passed a portion of the Alabama High School Graduation Exam. (Tr. 39). At the time of the initial hearing on October 10, 2014, she had recently started working at Wal-Mart . (Tr. 39). She started working as a cashier, but because of attention and focus issues, she was moved to housekeeping and maintenance. (Tr. 40). On April 6, 2015, the ALJ conducted a supplemental hearing to determine whether Kyles disability equaled a 5.08 listing due to potential anorexia. (Tr. 52-53). At that time, Kyles was still working at Wal-Mart approximately 32 hours per week. (Tr. 54). After conducting these two hearings, the ALJ made a determination that Kyles was not entitled to benefits. (Tr. 31).
After considering all of the evidence, the ALJ made the following relevant findings in his April 24, 2015, decision:
(Tr. 24-31).
A claimant is entitled to an award of SSI benefits if the claimant is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a). The impairment must be severe, making the claimant unable to do the claimant's previous work or any other substantial gainful activity that exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-11. "Substantial gainful activity means work that . . . [i]nvolves doing significant and productive physical or mental duties [that] [i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510.
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation in determining whether the claimant is disabled:
Watkins v. Comm'r of Soc. Sec., 457 F. App'x 868, 870 (11th Cir. 2012) (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the burden of proving the first four steps, and if the claimant does so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The reviewing court must determine whether the Commissioner's decision to deny benefits was "supported by substantial evidence and based on proper legal standards." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted); see 42 U.S.C. § 405(g). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel, 631 F.3d at 1178 (citations omitted). "In determining whether substantial evidence exists, [the reviewing court] must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The reviewing court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Id. When a decision is supported by substantial evidence, the reviewing court must affirm "[e]ven if [the court] find[s] that the evidence preponderates against the Secretary's decision." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
As set forth above, Kyles has asserted two reasons why the Commissioner's decision to deny her benefits is in error. Based on the finding below that the first asserted error requires remand to the Commissioner, the Court pretermits its discussion of the remaining issue.
Kyles asserts that the ALJ's failure to specifically consider whether her impairment or combination of impairments is of a severity to meet or medically equal the criteria of Listing 12.05C was in error because it is not supported by substantial evidence. The ALJ found that Kyles had the following severe impairments: borderline intellectual functioning, learning disorder NOS, and ADHD. (Tr. 24). The ALJ stated in his decision that these impairments did not equal the severity necessary to meet the criteria of any listed impairment. (Tr. 25). He then specifically evaluated Kyles under Listing 12.02. He did not evaluate Kyles under Listing 12.05. The Commissioner argues that Kyles failed to carry her burden of establishing disability under 12.05 and that substantial evidence supported the ALJ's finding that Kyles was not disabled under the Listings.
On November 14, 2013, Kyles's attorney sent a letter, which is part of the record, to the Mobile office of Disability, Adjudication & Review stating that during her consultative examination on August 14, 2013 with Dr. Tocci she "was found to be functioning within the mentally impaired range of intellectual ability." (Tr. 269). In the letter, her attorney requested a consultative examination be scheduled for an IQ test and stated that they believed "an IQ test may show that [Kyles] reaches a 12.05 listing." (Id.). Thereafter, Kyles was sent to Dr. Starkey for IQ testing. (Tr. 336). She scored a valid full-scale IQ of 70 on the WAIS-IV that was administered by Dr. Starkey in December of 2013. (Tr. 338). Kyles asserts that this score was supported by consultative examinations and reports of Dr. Starkey and Dr. Tocci. (Tr. 328-30, 333-40). At the hearing before the ALJ, her attorney stated: "[Dr. Starkey] indicated that Ms. Kyles has a full-scale IQ of 70. He also notes that she would have a marginal ability to deal with the general public and pressures common to work settings, most likely as a result of her ADHD and verbal or full-scale IQ score. Based on that Your Honor, I think that she would be unable to sustain gainful employment." Although her counsel did not specifically mention 12.05 or the terms "mental retardation" or "intellectual disability" at either hearing, Kyles asserts that the issue was clearly raised in the November 14, 2013 letter and by her attorney's statement at the hearing.
In noted above, evidence was presented that Kyles, who is under the age of 22, has a full scale IQ of 70 and has a diagnoses of ADHD, which the ALJ found to be a severe impairment; however, the ALJ did not mention Listing 12.05 at the hearing nor did he specifically mention, address, or analyze Listing 12.05 in his Decision. (Tr. 22-31).
The question presented is whether the ALJ erred by failing to address or analyze whether Kyles can meet the requirements of Listing 12.05C. The Listings describe certain medical findings and other criteria that are considered so extreme as to be presumptively disabling. See 20 C.F.R §§ 404.1525, 416.925. To establish disability under a Listing, a claimant must have a diagnosis included in the Listing and must provide medical reports documenting that her condition satisfies the specific criteria of the listed impairment. See Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002); 20 C.F.R. §§ 404.1525(a-d), 416.925(a-d). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify."
To "meet" Listing 12.05, the claimant must satisfy the diagnostic description in the introductory paragraph and one of four sets of diagnostic criteria found in paragraphs A, B, C, or D. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A). Listing 12.05's introductory paragraph requires the claimant to have: (1) significantly subaverage general intellectual functioning; (2) deficits in adaptive behavior; and (3) an onset of impairment before age 22. Id. at § 12.05. Although adaptive functioning is not defined in the regulations, the Eleventh Circuit has favorably cited the description of adaptive functioning in the Social Security Administration's Program Operations Manual System ("POMS") as "`the individual's progress in acquiring mental, academic, social and personal skills as compared with other unimpaired individuals of his/her same age,'" as well as the statement in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders that adaptive functioning means "`how well a person meets standards of personal independence and social responsibility, in comparison to others of similar age and sociocultural background. Adaptive functioning involves adaptive reasoning in three domains: conceptual, social, and practical.'" Schrader v. Acting Comm'r of the Soc. Sec. Admin., 632 F. App'x 572, 576 & n. 3-4 (11th Cir. 2015) (quoting Soc. Sec. Admin., Program Operations Manual System, DI 24515.056(D)(2) (2012) and DSM-V 37 (5th ed. 2013)).
If the claimant satisfies the three requirements in the introductory paragraph, the claimant must then satisfy one of the four criteria listed in 12.05A through 12.05D. The Listing relevant here is 12.05C. Under Listing 12.05C, the claimant must show both 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." Id. at § 12.05(C). Paragraph C requires an IQ score within a certain range that is valid. The Social Security Administration has noted that standardized intelligence tests can assist in verifying the presence of intellectual disability, but form only part of the overall assessment and should be considered in conjunction with developmental history and functional limitations. Id. at § 12.05(D)(6)(a). There is, however, "a rebuttable presumption that a claimant manifested deficits in adaptive functioning before the age of 22 if the claimant established a valid IQ score between 60-70." Grant v. Astrue, 255 F. App'x 374, 375 (11th Cir. 2007) (citing Hodges v. Barnhart, 276 F.3d 1265, 1266, 1268-69 (11th Cir. 2001)). The Court notes that an ALJ may find, for purposes of Listing 12.05, that the results of an IQ test are not valid, and therefore do not raise the presumption, where the test results are inconsistent with the medical record or the claimant's daily activities and behavior. Popp v. Heckler, 779 F.2d 1497, 1499-1500 (11th Cir. 1986); see also Nichols v. Comm'r, Soc. Sec. Admin., No. 16-11334, 2017 WL 526038, *3-4 (11th Cir. Feb. 8, 2017) (holding that the ALJ did not err in finding claimant's IQ score of 59 invalid where her range of activities and accomplishments, including reading and understanding English, having a driver's license, completing high school with a certificate, having a history of some unskilled work, raising two children, and handling money, were inconsistent with the IQ results).
Kyles relies on her full scale IQ score of 70 to support her claim that she was disabled under 12.05C. As discussed above, "[a] valid IQ score of 60 to 70 satisfies the first prong of paragraph C and creates a rebuttable presumption that the claimant satisfies the diagnostic criteria for intellectual disability." Frame v. Comm'r, Soc. Sec. Admin., 596 F. App'x 908, 911 (11th Cir. 2015). "Presumptive disability pursuant to Listing 12.05C is rebuttable, however, and the Commissioner is charged with determining whether there is sufficient evidence to rebut the presumption." Tubbs v. Berryhill, Civ. A. No. 15-00597-B, 2017 WL 1135234, at * 4 (S.D. Ala. Mar. 27, 2017).
The Eleventh Circuit has held that an ALJ is not required to explicitly discuss a listing if it can be implied from the ALJ's decision that the claimant did not meet the listing in question and that finding is supported by substantial evidence. See James v. Comm'r, Soc. Sec. Admin., 657 F. App'x 835, 838 (11th Cir. 2016) (holding that, although ALJ never discussed 12.05, finding that claimant lacked adaptive deficits was implied from ALJ's conclusion that claimant's prior work experience for fifteen years in semi-skilled jobs indicated that she did not have an intellectual disability); Rodriguez v. Comm'r of Soc. Sec., 633 F. App'x 770, 774 (11th Cir. 2015) (finding that ALJ implicitly concluded that claimant did not have deficits in adaptive functioning where the substantial evidence showed that claimant attended mainstream high-school classes through the eleventh grade without any specialized educational assistance, assisted his wife with household chores such as cooking and laundry, did the grocery shopping for his household, attended church twice a week, had a driver's license, and had a work history for many years including jobs at the skilled and semi-skilled level). However, unlike the claimants in those cases, Kyles does not have a lengthy work history in semi-skilled work, has not shown the ability to perform semi-skilled work, and the evidence in the record is mixed concerning her level of functioning.
At the time Kyles filed her claim for benefits she was eighteen years old and had never worked. (Tr. 70-71). She obtained a high school diploma and passed a portion of the high school exit exam.
Kyles does not live alone; she lives with her mother and sister. (Tr. 40). She does simple household tasks, has a checking account, has a driver's license, drives to work, and goes to church about once a month, usually with her mother, but sometimes alone. (Tr. 40-41). She does minimal cooking. (Tr. 255). She has difficulty managing her time and knowing when she needs to get up to do her activities. (Tr. 60). Her mother has to remind her to brush her teeth and to take her medicine. (Tr. 255).
Kyles was evaluated on August 14, 2013, at the beginning of her senior year in high school, by psychologist Nina E. Tocci. (Tr. 328). Her mother attended and assisted Kyles during the evaluation. (Id.). Kyles demonstrated fair attention and concentration, a poor fund of information and comprehension, little insight into her behavior, and rudimentary social judgment. (Id.). For example, she did not know the number of days in a year ("7"), the number of dimes in a dollar ("6"), the direction of the sunrise ("North"), the animal from which wool comes ("mammals" (RQ) "cheetahs"), the number of items in a dozen ("10"), or how to count serial threes backwards or serial fours forwards. (Id.). A review of her IEP by Dr. Tocci revealed that Kyles was functioning well below average in Reading, Math, and Language skills and had scored below the 25th percentile in Math and Reading on her most recent attempt at the high school exit exam. (Tr. 330). Dr. Tocci opined that Kyles appeared "to be functioning within the mentally impaired range of intellectual disability." (Id.).
Kyles was also evaluated by psychologist Kenneth R. Starkey on December 9, 2013. (Tr. 336). Dr. Starkey administered the Weschler Adult Intelligence Scale, Fourth Edition (WAIS-IV), on which Kyles had a full scale IQ score of 70, which placed her in the 2nd percentile and, according to Dr. Starkey, at the lower end of the borderline range of intellectual functioning. (Tr. 338). Based on his evaluation, Dr. Starkey opined that Kyles "ability to understand, remember, and carry out simple/concrete instructions appears adequate (although she would likely have difficulty with more complex instructions or those requiring other than basic literacy and computational skills)." (Tr. 339). He also opined that "[h]er ability to work with teachers/supervisors and peers/coworkers also appears adequate . . . [but] [h]er ability to work with the general public and with pressures common to most every day work settings appears marginal (at the present time)." (Tr. 340).
Taking into account the foregoing record evidence, this case falls in line with those cases finding reversal and remand appropriate when the ALJ did not analyze the claim under 12.05 when presented with an IQ score that fell within the stated range. See, e.g., Tubbs, 2017 WL 1135234, at * 5-6 (reversing and remanding because it was "unclear from the record that the ALJ conducted the proper analysis under Listing 12.05C" where the claimant scored full scale scores of 64 and 66 on IQ tests, was in special education classes from seventh grade through graduation, and had worked as a cook/dishwasher and as a scaler in a chicken plant for time periods spanning several months to a few years); Hartman v. Colvin, No. CA 13-00005-C, 2014 WL 3058550, * 6-8 (S.D. Ala. July 7, 2014) (reversing and remanding where the ALJ failed to discuss Listing 12.05C, and it was far from clear that, if the ALJ had applied the correct standard, her findings regarding the claimant's adaptive functioning skills would support the determination that the claimant did not meet 12.05C where the evidence showed that claimant had a high school GPA of 3.18 and a class rank of 31 of 193, but was in special education classes and received a high school certificate of attendance in lieu of a diploma, that she had performed two jobs — clothes presser and hamburger assembler — but not at substantial gainful activity levels, that she lived with her mother and her children (of whom the mother had custody), and that she was able to cook, clean, shop, handle finances and drive, although it took seven attempts to get her license); Hogue v. Colvin, Civ. A. No. 2:13-00375-N, 2014 WL 1744759, * 16 (S.D. Ala. Apr. 30, 2014) (reversed and remanded for consideration of Listing 12.05C where the ALJ did not address whether the evidence was sufficient to rebut the presumption of disability where the evidence showed that claimant had friends and a girlfriend, had worked as a lifeguard, shopped and knew how to handle money, knew how to prepare meals and do household chores, took care of his son, played video games, used Facebook, "was a well spoken young man," had a driver's license, and dropped out of school during his second attempt at seventh grade); Frank v. Astrue, No. CA 2:11-00215-C, 2011 WL 6111692, * 4 (S.D. Ala. Dec. 8, 2011) (finding that it was "clearly error to not consider Listing 12.05(C) and, given the evidence before the ALJ, [to not] find that a claimant is presumptively disabled," where the evidence showed that claimant was the primary caregiver for her children, that she had past work as an office cleaner and fast food worker, and that she was in special education classes and failed to graduate).
The record is certainly not clear that the presumption of deficits in adaptive functioning, to which Kyles is entitled, is rebutted by the evidence of record. This Court, mindful of the limits of its review, declines to make such a determination when such a determination is within the purview of the ALJ. Accordingly, for the reasons set forth herein, the Court finds that this case should be remanded so that the Commissioner can specifically consider whether Kyles's intellectual deficit meets or equals the 12.05C Listing.
It is
