WILLIAM E. CASSADY, Magistrate Judge.
The Plaintiff 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 denying her claim for supplemental security income ("SSI"). 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. 18 ("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 ("R.") (doc. 12), the Plaintiff's brief (doc. 13), the Commissioner's brief (doc. 14), and the arguments presented at the August 21, 2013 hearing, it is determined that the Commissioner's decision denying benefits should be reversed and remanded for further proceedings not inconsistent with this decision.
On or around October 23, 2009, the Plaintiff filed an application for SSI (R. 128-131), alleging that she became disabled on February 11, 2009, when she sustained injuries to her left knee, neck and back in a motor vehicle accident, (see R. 55, 161-68). Her application was initially denied on April 6, 2010, (R. 77-79). A hearing was then conducted before an Administrative Law Judge on June 8, 2011. (R. 49-67). On June 17, 2011, the ALJ issued a decision finding that the claimant was not disabled (R. 33-45), and, on July 25, 2011, the Plaintiff sought review from the Appeals Council, (R. 27-29). On November 14, 2012, the Appeals Council issued a decision declining to review the ALJ's decision. (R. 1-3.) Therefore, the ALJ's determination was the Commissioner's final decision for purposes of judicial review. See 20 C.F.R. § 404.981. The Plaintiff filed a Complaint in this Court on January 9, 2013. (Doc. 1.)
In all Social Security cases, the plaintiff bears the burden of proving that he or she is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the plaintiff's age, education, and work history. Id. Once the plaintiff meets this burden, it becomes the Commissioner's burden to prove that the plaintiff is capable—given his or her age, education, and work history—of engaging in another kind of substantial gainful employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Although at the fourth step "the [plaintiff] bears the burden of demonstrating an inability to return to his [or her] past relevant work, the [Commissioner of Social Security] has an obligation to develop a full and fair record." Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ's decision to deny Plaintiff benefits is supported by substantial evidence. Substantial evidence is defined as more than a scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). "In determining whether substantial evidence exists, [a 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). Courts are precluded, however, from "deciding the facts anew or re-weighing the evidence." Davison v. Astrue, 370 Fed. App'x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, "[e]ven if the evidence preponderates against the Commissioner's findings, [a court] must affirm if the decision reached is supported by substantial evidence." Id. (citing Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the Plaintiff asserts two claims:
(Doc. 13 at 2.) Because the Court determines that the decision of the Commissioner should be reversed and remanded for further proceedings based on the Plaintiff's first claim, regarding presumptive disability under ¶12.05C of the Listings, there is no need for the Court to consider the Plaintiff's second claim. See Robinson v. Massanari, 176 F.Supp.2d 1278, 1280 & n.2 (S.D. Ala. 2001); cf. Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) ("Because the `misuse of the expert's testimony alone warrants reversal,' we do not consider the appellant's other claims.").
To establish presumptive disability under section 12.05(C), a claimant must present evidence of "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05(C). In addition, while the plaintiff must "also satisfy the `diagnostic description' of mental retardation in Listing 12.05[,]"
This presumption is rebuttable, but the Commissioner is charged with the task of determining whether there is sufficient evidence (relating to plaintiff's daily life) to rebut the presumption. See Grant v. Astrue, 255 Fed. App'x 374, 375 (11th Cir. 2007) (per curiam). For example, in Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992), the Eleventh Circuit recognized that a valid IQ score is not necessarily conclusive of mental retardation where the score is inconsistent with other evidence of claimant's daily activities, see id. at 837. Specifically, in the context of 12.05(C), the Eleventh Circuit held:
Id. at 837; see also Grant, 255 Fed. App'x at 375 ("The mental retardation Impairment Listing in § 12.05C requires the claimant to demonstrate a `significant subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the development period; i.e., the evidence demonstrates or supports onset of the impairment before age 22,' as well as 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.'") (quoting §§ 12.00A, 12.05, 12.05(C)).
Here, the ALJ acknowledged that the Plaintiff received a valid Full Scale IQ score of 70. (R. 37.) Furthermore, the ALJ determined that, in addition to Plaintiff's cognitive impairments, the Plaintiff had the following other severe impairments: "depression/dysthymic disorder, obesity, and back, neck, and bilateral knee injuries status post motor vehicle accident." (Id. at 35.) Such severe impairments satisfy the paragraph C criterion of physical or other mental impairments imposing an additional and significant work-related limitation of function. Hogue v. Colvin, CA No. 2:13-00375-N, 2014 WL 1744759, at *5 (S.D. Ala. April 30, 2014) (citing Edwards, 755 F.2d at 1517; Grigsby v. Astrue, No. CV 11-06355-MAN, 2012 WL 3029766, at *4 (C.D. Cal. July 24, 2012). Thus, the Plaintiff was entitled to a rebuttable presumption of deficits in adaptive functioning under Listing 12.05(C). Grant, 255 Fed. App'x at 375 ("[T]he ALJ found, and the Commissioner does not dispute, that [Plaintiff] had a valid IQ score of 69 and that she possessed a physical or mental impairment imposing an additional and significant work-related limitation of function. She was therefore entitled to the benefit of the rebuttable presumption established in Hodges, and the ALJ was charged with determining whether there was sufficient evidence to rebut that presumption."); Lowery, 979 F.2d at 837. The ALJ, however, erred by failing to apply the rebuttable presumption of disability in the Plaintiff's favor. (R. 36-39.) Despite recognizing a valid IQ score between 60 and 70 and finding that the Plaintiff had another severe impairment, the ALJ failed to discuss or even reference Listing 12.05(C). (Id.)
Rather than specifically address the paragraph C criteria of Listing 12.05 and apply the rebuttable presumption in the Plaintiff's favor, as the ALJ was required to do, the ALJ discussed the adaptive functioning requirements in the introductory paragraph of Listing 12.05 and considered the paragraph D criteria of Listing 12.05. (Id.) With regard to the adaptive functioning requirements in the introductory paragraph of Listing 12.05, the ALJ stated as follows:
(R. 36-37.) As stated above, the ALJ also considered the paragraph D criteria. The ALJ concluded that the Plaintiff did not meet the paragraph D criteria because she had only mild restrictions in her activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no extended episodes of decompensation. (Id. at 37-39.) Quite significantly, however, the ALJ completely ignored the paragraph C criteria. (Id. at 36-39.) The ALJ's failure to acknowledge the applicability of Listing 12.05(C) and afford the Plaintiff the rebuttable presumption of deficits in adaptive functioning was clear error because the Plaintiff met both of the requirements in paragraph C. Hogue v. Colvin, 2014 WL 1744759, at *5 (finding that the ALJ's failure to address 12.05C and apply the rebuttable presumption constituted error requiring remand where the Plaintiff had a valid IQ score between 60 and 70 and the ALJ found that the Plaintiff had other severe impairments); Frank v. Astrue, No. CA 2:11-00215-C, 2011 WL 6111692 (S.D. Ala. Dec. 8 2011) (same).
The Commissioner argues that any error on the part of the ALJ was harmless because "the ALJ articulated multiple valid reasons to rebut [the] presumption [of deficits in adaptive functioning]." (Doc. 14 at 10.) The Commissioner's argument is unconvincing. First, as stated above, the ALJ never afforded the Plaintiff the presumption in her favor and, therefore, the ALJ never found that her findings regarding the Plaintiff's adaptive functioning skills were sufficient to rebut or overcome the presumption of deficits. (R. 36-39.) Rather, the ALJ simply concluded, without considering the paragraph C criteria, that the Plaintiff's adaptive functioning skills were not indicative of mental retardation. (Id.) The ALJ applied the wrong standard, see Grant, 255 Fed. App'x at 375 (concluding that the ALJ applied the wrong legal standard because the ALJ did not afford the Plaintiff the benefit of the presumption of deficits), and
Bush v. Colvin, Civil Act. No. 2:13-cv-50-CSC, 2014 WL 2158427, at *7 (M.D. Ala. May 23, 2014).
Second, it is far from clear that, if the ALJ had applied the correct standard, her findings regarding the Plaintiff's adaptive functioning skills would support the determination that the Plaintiff did not meet Listing 12.05(C). Evidence of daily activities indicative of independent living is not inconsistent with an IQ score in the 60-70 range. Frank, 2011 WL 6111692, at *6 (citing Alday v. Astrue, No. 5:08cv217-SPM/WCS, 2009 WL 347722, at *3-7 (N.D. Fla. Feb. 11, 2009); Black v. Astrue, 678 F.Supp.2d 1250, 1261 (N.D. Fla. 2010)).
Monroe v. Astrue, 726 F.Supp.2d 1349, 1355 (N.D. Fla. 2010).
Here, the evidence demonstrates that, although the Plaintiff had a high school GPA of 3.18 and a class rank of 31 of 193, she was in special education classes and never received a high school diploma. (R. 54-55, 149.) Instead, she received a certificate of attendance. (Id. at 54, 149.) She has worked two jobs—one pressing clothes for a dry cleaner and the other assembling hamburgers at a fast food restaurant. (Id. at 55.) The Plaintiff testified that she obtained the job at the fast food restaurant because a mental health caseworker first contacted the restaurant on her behalf. (Id. at 60-61.) As a clothes presser and as a hamburger assembler, the Plaintiff needed assistance from other employees. (Id. at 59-61.) At the fast food restaurant, the food orders were displayed on a monitor and another employee needed to read her the orders. (Id. at 61.) Neither job was performed at substantial gainful activity levels. (Id. at 43.) The Plaintiff lives with her mother and her three children, but her mother has custody of her children. (Id. at 37, 56.) The Plaintiff is able to prepare meals and perform household chores, such as laundry, vacuuming and sweeping. (Id. at 37.) She is able to shop, pay bills, count change and handle a savings account. (Id.) She has a driver's license and is able to drive, but she needed seven attempts to pass the driver's test. (Id.)
Thus, the evidence of record and the ALJ's findings regarding adaptive functioning are not necessarily inconsistent with the Plaintiff's IQ score of 70. Notably, the Plaintiff has no history of managing or supervising other workers, and she has no history of skilled or semi-skilled labor. The evidence suggests that the Plaintiff had difficulty with unskilled work. Furthermore, her academic history demonstrates that her high school classes were within the special education program and she had no academic or technical training following high school. Additionally, the Commissioner presented no evidence that the Plaintiff manipulated her IQ score to misrepresent her level of intelligence. For those reasons, this case appears to be distinguishable from the cases in this Circuit where courts affirmed an ALJ's determination that Listing 12.05(C) was not met despite IQ scores in the 60 to 70 range. See Perkins v. Comm'r, Soc. Sec. Admin., No. 13-12024, 553 Fed. App'x 870, 873 (11th Cir. Jan. 22, 2014) (affirming that Listing 12.05(C) was not met where the plaintiff performed skilled jobs, managed other workers, and made contradictory claims regarding his education and employment history); Popp, 779 F.2d at 1499 (affirming that Listing 12.05(C) was not met where the plaintiff had worked skilled jobs, obtained a college degree and exaggerated his deficits when examined); Brown v. Astrue, No. CV608-036, 2009 WL 2135005, at *5 & n.5 (S.D. Ga. Jul 15, 2009) (affirming that Listing 12.05(C) was not met where the plaintiff had a history of performing skilled work and supervising other workers); Lyons v. Astrue, No. 2:08-cv-614-FtM-29SPC, 2009 WL 1657388, at *10-11 (M.D. Fla. Jun 10, 2009) (affirming that Listing 12.05(C) was not met where the plaintiff received a high school diploma, was not enrolled in special education classes, and malingered during testing); Bischoff, 2008 WL 4541118, at *20 (affirming that Listing 12.05(C) was not met where the plaintiff held managerial positions and jobs requiring technical knowledge and skills and the ALJ found that he was faking his deficits); Davis v. Astrue, Civil Action No. 2:07cv880-TFM, 2008 WL 2939523, at *3 (M.D. Ala. Jul 25, 2008) (affirming that Listing 12.05(C) was not met where the plaintiff had a history of semi-skilled work and received vocational training in cosmetology and secretarial skills).
In any event, the record is certainly not clear that the presumption of deficits in adaptive functioning, to which the Plaintiff is entitled, is rebutted by the evidence of record, and the undersigned declines to make such a determination when the ALJ failed to do so. As discussed above, this case must be reversed and remanded due to the ALJ's failure to consider Listing 12.05(C) and apply the correct legal framework.
It is
