STEPHEN C. RIEDLINGER, Magistrate Judge.
Plaintiff Deandre Williams, brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner") denying his claim for supplemental security income benefits ("SSI").
Plaintiff exhausted his administrative remedies before filing this action for judicial review. For the reasons which follow the Commissioner's decision should be reversed.
Under § 405(g), judicial review of a final decision of the Commissioner denying SSI benefits is limited to two inquiries: (1 whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
If the Commissioner fails to apply the correct legal standards, or provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981); Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity. 20 C.F.R. § 416.905. The regulations require the ALJ to apply a five step sequential evaluation to each claim for benefits. 20 C.F.R. § 416.920. In the five step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work. Masterson, 309 F.3d at 271.
Listed impairments are descriptions of various physical and mental illnesses and abnormalities generally characterized by the body system they affect. Each impairment is defined in terms of several specific medical signs, symptoms, or laboratory test results. For a claimant to show that his impairment matches a listed impairment he must demonstrate that it meets all of the medical criteria specified in the listing. An impairment that exhibits only some of the criteria, no matter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 521, 529-32, 110 S.Ct. 885, 891-92 (1990); 20 C.F.R. § 416.925.
The burden of proving disability rests on the claimant through the first four steps. At the fourth step the Commissioner analyzes whether the claimant can do any of his past relevant work. If the claimant shows at step four that he or she is no longer capable of performing past relevant work, the burden shifts to the Commissioner to show that the claimant is able to engage in some type of alternative work that exists in the national economy. Myers, supra. If the Commissioner meets this burden the claimant must then show that he or she cannot in fact perform that work. Boyd, 239 F.3d at 705.
After his application was denied at the initial stage, the plaintiff requested an administrative law judge ("ALJ") hearing. Plaintiff and his mother testified at the ALJ hearing. During his school years the plaintiff attended special education classes, and obtained a diploma from a high school that was not accredited. Plaintiff completed booklets to obtain his diploma. According to the plaintiff's mother, the plaintiff's siblings helped him complete the work to attain his diploma. Plaintiff attended community college for several semesters, but did not return because of failing grades. AR pp. 29-30, 39-40, 124. Plaintiff has no past relevant work because he has never been employed. In his application for SSI benefits the plaintiff alleged that he is disabled because of lung disease, a heart condition, and a learning disorder. AR pp. 30, 124. Plaintiff was 22 years old at the time of the ALJ's decision.
The ALJ issued an unfavorable decision. AR pp. 14-51.
The ALJ then evaluated the plaintiff's residual functional capacity ("RFC") to determine whether, despite his severe impairments, the plaintiff was able to do work that existed in significant numbers in the national economy.
A vocational expert also testified at the hearing. The expert stated that several sedentary, unskilled positions which did not involve exposure to pulmonary irritants, and required only occasional climbing of stairs and ramps, existed in significant numbers in the national economy. AR pp. 42-43. The ALJ's decision shows that she did not cite or rely on this evidence at the fifth step. AR pp. 15-20.
In his appeal memorandum the plaintiff argued that the ALJ erred at steps three and five of the disability analysis, and these errors require reversal and remand under sentence four of § 405(g). One of the errors alleged by the plaintiff is that the ALJ failed to correctly analyze the plaintiff's impairments at step three. Plaintiff argued that the evidence in the record supported a finding that he met the listing for mental retardation, but the ALJ neglected to even address whether the plaintiff satisfied the listing for mental retardation — Listing 12.05C. Plaintiff argued that at the fifth step the ALJ was required to rely on vocational evidence. Citing Bowling v. Shalala,
The Commissioner acknowledged that at the third step the ALJ did not specifically discuss Listing 12.05C., but argued that the ALJ properly declined to address the listing because the record shows that this listing is not applicable to the plaintiff. The Commissioner argued that no medical source has diagnosed the plaintiff with mental retardation, and the plaintiff cannot establish that he meets the criteria of the introductory paragraph of the listing. The Commissioner's arguments, however, are not supported by the record, regulations and case law.
To satisfy the requirements of Listing 12.05C. a formal diagnosis of mental retardation is not required.
In Randall v. Astrue, 570 F.3d 651 (5th Cir. 2009), the Fifth Circuit held that to establish disability under Listing 12.05C., a claimant has the burden of demonstrating that his impairment satisfies the introductory paragraph's diagnostic description, and showing the severity criteria of paragraph A, B, C or D. Thus, to establish disability under Listing 12.05C, the claimant must satisfy not only the requirements of Subsection C itself — low IQ scores and another physical or mental impairment — but also the requirements of the "introductory paragraph," i.e., the claimant has "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period." James v. Astrue, 2011 WL 202140, 6 (W.D.La.,2011), citing, Randall, 570 F.3d at 662.
Listing 12.05C. does not define "adaptive functioning." However, the Fifth Circuit has indicated that the definition of "adaptive activities" found in § 12.00(C adaptive functioning encompasses adaptive activities "such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office."
The Fifth Circuit has not yet specifically addressed whether a step two finding that an impairment is severe is the equivalent of the "significant work-related limitation of function" requirement of the second part of paragraph C of Listing 12.05. However, the introduction to Listing 12.00 (Mental Disorders indicates that this is the correct standard.
In light of the above legal standards, the Commissioner's argument that Listing 12.05C. is not applicable to the plaintiff is unconvincing.
Psychologist Ivory L. Toldson, Ph.D. performed a consultative mental examination. Toldson administered the WAIS-IV intelligence tests as part of his examination. Toldson reported that the plaintiff had a verbal comprehension score of 68 and a full scale IQ of 62.
The only remaining issue is whether the plaintiff's mental impairment satisfies the introductory paragraph's diagnostic description. The Commissioner focused on this issue, arguing that the evidence shows the plaintiff cannot meet his burden of establishing significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period. Since the ALJ did not even address Listing 12.05C., the Commissioner's argument is essentially that the ALJ's error was harmless because the plaintiff cannot present evidence that he satisfies the listing's diagnostic description.
This argument is also unconvincing. It is clear that the evidence cited by the Commissioner in his memorandum as well as other evidence in the record, if credited by the ALJ, could support a finding that the plaintiff has both significantly subaverage general intellectual functioning and deficits in adaptive functioning which initially manifested before the age of 22.
It appears that Listing 12.05C. applies to the plaintiff. The ALJ's failure to review the relevant evidence to determine whether the plaintiff met this listing was not harmless error. However, the ALJ's error does not create a situation where the Commissioner's final decision should be reversed and the case remanded for an award of benefits. On judicial review the court cannot weigh the evidence and make a finding that the plaintiff's impairments satisfy the requirements of the introductory diagnostic description for Listing 12.05C. It is the Commissioner's role to review and weigh all the evidence and then make the findings necessary to determine whether the plaintiff meets the listing criteria and is disabled at step three. Therefore, the Commissioner's decision must be reversed and the case remanded for proper consideration of all the relevant evidence and reevaluation of the plaintiff's claim that he is disabled.
Since this error requires remand it unnecessary to address the plaintiff's remaining arguments in support of his appeal. Plaintiff may pursue his other claims of error in the administrative proceedings on remand.
It is the recommendation of the magistrate judge that, under sentence four of 42 U.S.C. § 405(g), the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security, denying the application for benefits by plaintiff Deandre Williams be reversed, and that this case be remanded to the Commissioner for reevaluation of the plaintiff's claim for supplemental security income benefits.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 416.967(b).
