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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Patrick Fitzgerald Watkins,

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-16-00168-PHX-DLR

ORDER 

 

 Plaintiff applied for supplemental security income on November 15, 2011, 

claiming disability since the filing date. (AR 22, 166-74.) After state agency denials, 

Plaintiff testified at a hearing before an Administrative Law Judge on May 16, 2014. 

(AR 22-41.) The ALJ issued a written decision one month later, finding Plaintiff not 

disabled within the meaning of the Social Security Act. (AR 15-35.) This became 

Defendant’s final decision when the Appeals Council denied review. (AR 1-3.) 

 Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. 

§ 405(g). (Doc. 1.) After receipt of the administrative record (Doc. 10), the parties 

briefed the issues for review concerning Plaintiff’s alleged mental disability (Docs. 17, 

19, 22). For reasons stated below, Defendant’s decision is reversed and the case 

remanded for an award of benefits. 

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STANDARD OF REVIEW 

The district court reviews only those issues raised by the party challenging the 

Commissioner’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 

The court may set aside the decision if it is based on legal error or not supported by 

substantial evidence. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial 

evidence is more than a scintilla but less than a preponderance, and such relevant 

evidence that a reasonable person might accept as adequate to support a conclusion 

considering the record as a whole. Id. Where “the evidence is susceptible to more than 

one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 

conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 

The court, however, reviews “only the reasons provided by the ALJ in the disability 

determination and may not affirm the ALJ on a ground upon which [she] did not rely.” 

Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 

DISCUSSION 

Whether a claimant is disabled is determined using a five-step evaluation process. 

The claimant must show that (1) he is not currently working, (2) he has a severe 

impairment, and (3) his impairment meets or equals a listed impairment or (4) his 

residual functional capacity (RFC) precludes him from performing past work. If the 

claimant meets his burden at step three, he is presumed disabled and the process ends. If 

the inquiry proceeds and the claimant meets his burden at step four, the Commissioner 

must show at the fifth and final step that the claimant is able to perform other work given 

his RFC, age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(i)-(v). 

Plaintiff has met his burden at steps one and two: he has not worked since the 

alleged date of disability and has severe intellectual disability, depressive disorder, 

psychotic disorder, and polysubstance dependence in partial remission. (AR 24-25.) The 

ALJ found at step three that Plaintiff’s impairments do not meet or equal a listed 

impairment. (AR 25-28.) The ALJ then determined that Plaintiff has the RFC to perform 

a range of medium work limited to simple, repetitive tasks in jobs that are not fast-paced 

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and do not require working as a team or with the public. (AR 28-35.) Based on this RFC 

and testimony from a vocational expert, the ALJ determined at step four that Plaintiff is 

not disabled because he can perform his past job as a construction worker. (AR 36.) 

 Plaintiff challenges the step three determination, arguing that the ALJ erred in 

concluding that his intellectual disability does not meet listing 12.05B. (Doc. 17 at 8-11.) 

Plaintiff further argues that the ALJ erred by failing to consider certain “paragraph B” 

criteria in determining RFC (id. at 11-18), and by making the RFC determination without 

citing to supporting evidence (at 18-20). Defendant counters that the ALJ reasonably 

found that Plaintiff’s intellectual disability does not meet the requirements of listing 

12.05B (Doc. 19 at 6-10), and the RFC determination was proper and supported by 

substantial evidence (at 10-15). As explained below, the Court finds that the ALJ 

committed reversible error at step three and the case should be remanded for an award of 

benefits. 

I. The Step Three Determination and Listing 12.05B 

 The listing of impairments, set forth in an appendix to the social security 

regulations, is comprised of various impairments to fifteen body systems. See 20 C.F.R. 

Pt. 404, Subpt. P, App. 1. The impairments described in the listings are considered so 

severe they are presumed disabling regardless of a person’s age, education, or work 

experience. 20 C.F.R. §§ 416.920(d), 416.925(a); Young v. Sullivan, 911 F.2d 180, 

183-84 (9th Cir. 1990). In order to meet a specific listing, the claimant must present 

evidence satisfying the diagnostic description of the impairment and any additional 

criteria or requirements set forth in the listing. 20 C.F.R. § 416.925(d); Young, 911 F.2d 

at 184.1

 

 Listing 12.05 sets forth the requirements for intellectual disability (formerly 

known as “mental retardation” under the old rules and as “intellectual disorder” under the 

 

1

 The listings for mental disorders have been revised, effective January 17, 2017. See 81 Fed. Reg. 66137 (Sept. 26, 2016). In reviewing agency decisions, however, district courts are to apply the rules that were in effect at the time the final decision was 

issued. Id. at 66138 & n.1. In reviewing the decision in this case, the Court will apply the rules in effect when the decision became final on November 25, 2015. (AR 1.) 

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new ones). The listing contains an introductory paragraph setting forth the diagnostic 

description of the impairment as (1) significantly subaverage general intellectual 

functioning with (2) deficits in adaptive functioning initially manifested during the 

developmental period, that is, before age 22. The listing also contains four sets of 

criteria, subparagraphs A through D, which address the required level of severity for the 

condition to be presumed disabling. To meet Listing 12.05, the claimant must show that 

his impairments satisfy both the diagnostic description of intellectual disability in the 

introductory paragraph and any one of the four criteria in subparagraphs A through D. 

20 C.F.R. § 416.925(c)(3) (“We will find that your impairment(s) meets the requirements 

of a listing when it satisfies all of the criteria of that listing, including any relevant criteria 

in the introduction, and meets the [twelve-month] duration requirement.”). 

 Subparagraph B, the one at issue here, requires a valid verbal, performance, or full 

scale IQ of 59 or less in order for the intellectual disability to be presumed disabling. 

Here, Plaintiff had a full scale IQ of 56, which is extremely low according to Dr. Alysha 

Bundy, the state agency psychologist who administered the IQ test. (AR 411.) Plaintiff 

contends that the ALJ erred in concluding that the IQ score is not valid and Plaintiff had 

no “significant” deficits in adaptive functioning. (Doc. 17 at 9.) The Court agrees. 

A. Validity of the IQ Score 

 The ALJ found that Plaintiff’s IQ of 56 does not reflect his true cognitive 

functioning given evidence of his adaptive functioning such as his ability to maintain 

personal hygiene, perform household chores, use the telephone and public transportation, 

obtain a driver’s license, and shop. (AR 27.) But Dr. Bundy explicitly found that the IQ 

score was valid despite the fact that Plaintiff could perform these routine tasks. (AR 

409-11.) Indeed, the evidence the ALJ cites to show that Plaintiff can engage in routine 

daily activities is the report of Dr. Bundy. (AR 27, 32.) 

 The fact that Plaintiff can perform simple tasks and might not have significant 

deficits in adaptive functioning does not invalidate the results of the IQ test designed to 

capture his intellectual functioning, which refers to the mental capacity to learn, reason, 

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plan, and solve problems. Courts have held that routine daily activities such as those 

performed by Plaintiff “are not necessarily inconsistent with [intellectual disability] and 

are therefore not valid grounds for rejecting an IQ score.” Lewis v. Astrue, No. C-06-

6608-SI, 2008 WL 191415, at *7 (N.D. Cal. Jan. 22, 2008); see Pedro v. Astrue, 849 F. 

Supp. 2d 1006, 1014 (D. Or. 2011) (noting that “courts have held that daily activities 

such as reading, driving, and cleaning are not necessarily inconsistent with mental 

retardation”); Schuler v. Astrue, No. CV-09-2126-PLA, 2010 WL 1443892, at *6 (E.D. 

Cal. 2010) (ALJ erred in rejecting validity of IQ score where the claimant functioned 

independently as an adult because this was not necessarily inconsistent with his mental 

impairment); Brown v. Sec’y of HHS, 948 F.2d 268, 270 (6th Cir. 1991) (daily activities 

such as using public transit, shopping, cleaning, and doing laundry are not inconsistent 

with a low IQ score). 

 The regulations require a narrative report accompanying the IQ test that 

“comment[s] on whether the IQ scores are considered valid and consistent with the 

developmental history and the degree of functional limitation.” 20 C.F.R. Pt. 404, 

Subpt. P, App. 1, § 12.00D6a. Dr. Bundy provided the required narrative, which 

addresses in detail Plaintiff’s developmental history, functional limitations, and daily 

activities. (AR 408-14.) Dr. Bundy specifically found that Plaintiff’s “cooperation and 

general attitude was appropriate with sufficient effort” and his “approach during the 

testing was adequate for evaluation purposes.” (AR 410-11.) She concluded, in her 

professional medical opinion, that the “results of [the IQ] testing are considered valid.” 

(AR 411.) 

 The ALJ may not “substitute [her] own judgment for competent medical opinion,” 

and she “must not succumb to the temptation to play doctor and make her own 

independent medical findings.” Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 

June 13, 2006). This is particularly true where, as in this case, the examining doctor’s 

opinion is not contradicted by another physician and the ALJ purported to give 

“significant weight” to the opinion because it was “consistent with the totality of the 

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medical record.” (AR 34.) 

 The Court concludes that the ALJ erred in substituting her own judgment for that 

of Dr. Bundy’s, and otherwise failed to provide clear and convincing reasons for finding 

Plaintiff’s IQ of 56 to be invalid. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) 

(the ALJ “must provide ‘clear and convincing’ reasons for rejecting the uncontradicted 

opinion of an examining physician”). Based on his extremely low IQ score, Plaintiff has 

shown that his general intellectual functioning is sufficiently severe for purposes of 

Listing 12.05B.2

B. Deficits in Adaptive Functioning 

 In order to meet Listing 12.05, Plaintiff must have deficits in adaptive functioning, 

which generally refers to how well a person can “cope with the challenges of ordinary 

everyday life.” Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007). More specifically, 

adaptive functioning is the “effectiveness in areas such as social skills, communication, 

and daily living skills, and how well the person meets the standards of personal 

independence and social responsibility expected of his or her age by his or her cultural 

group.” Heller v. Doe, 509 U.S. 312, 329 (1993). 

 The ALJ found that the medical records contain no evidence of “significant” 

deficits in adaptive functioning. (AR 27.) The introductory paragraph of Listing 12.05, 

however, “requires evidence that deficits in adaptive functioning exist, not evidence that 

a claimant has no adaptive functioning skills.” McGrew v. Colvin, No. 13-cv-01909-SI, 

2015 WL 1393291, at *7 (D. Or. Mar. 25, 2015). Contrary to the ALJ’s assertion, the 

record contains objective evidence of deficits in adaptive functioning, and Plaintiff’s RFC 

– as determined by the ALJ – incorporated such deficits. (AR 28.) The ALJ found that 

Plaintiff is unable to work with others as part of a team or in jobs that involve public 

 

2

 Defendant’s reliance on Low v. Colvin (Doc. 19 at 9), is misplaced. In Low, the 

ALJ was faced with conflicting IQ scores and rejected the lower one given the claimant’s “ability to mentally function as demonstrated by successfully taking and completing college based classes over an extended period of time.” 2014 WL 4968285, at *6 (E.D. 

Cal. Sept. 30, 2014). Here, by contrast, Plaintiff attended special education classes and dropped out of high school after the ninth grade. (AR 52.) 

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contact. Id.; see McGrew, 2015 WL 1393291, at *7 (RFC that precluded claimant from 

working with others and having contact with the public evidenced deficits in adaptive 

functioning”). 

 In her psychological report, Dr. Bundy opined that Plaintiff has difficulties with 

interpersonal functioning due to trust issues and suspiciousness, has limited ability to 

maintain socially appropriate behavior, and does not respond well to supervision and 

criticism. (AR 410, 414.) Dr. Bundy also noted that Plaintiff appears to resist change 

and that with ongoing pressure, acute anxiety symptoms and persecutory thoughts might 

surface. (AR. 412.) Clearly, the record is not devoid of objective medical evidence 

showing some deficits in adaptive functioning. The ALJ erred in finding otherwise. 

 The ALJ noted that Plaintiff was able to take care of his own basic needs and 

could perform routine chores (AR 27), but “possessing average living skills . . . does not 

indicate that a claimant does not have deficits in adaptive functioning.” McGrew, 2015 

WL 1393291, at *7; see Lewis, 2008 WL 191415, at *7 (“Claimant’s ability to take care 

of herself and her children, though certainly physically and emotionally demanding, is no 

indication of the intellectual demand of those activities and is not inconsistent with being 

mentally retarded.”); Huber v. Astrue, No. CV-10-8043-PCT-DGC, 2010 WL 4684021, 

at *4 (D. Ariz. Nov. 12, 2010) (ALJ erred in finding claimant’s adaptive functioning 

inconsistent with intellectual disability merely because she could read, had a driver’s 

license, and was able to handle her own hygiene and keep her house clean). 

 In finding that Plaintiff “did not suffer from significant adaptive deficits, the [ALJ] 

overemphasized [Plaintiff’s] perceived adaptive strengths.” Moore v. Texas, --- S. Ct. ---, 

2017 WL 1136278, at *11 (Mar. 28, 2017). Listing 12.05, however, “focuses the 

adaptive-functioning inquiry on adaptive deficits.” Id. In short, the ALJ erred in 

concluding that there is no record evidence showing deficits in adaptive functioning. 

C. Manifestation of the Intellectual Disability in the Developmental Period 

 IQ tests or other contemporary evidence of intellectual disability before age 22 is 

not required to establish onset of the impairment during the developmental period. See 

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Lewis, 2008 WL 191415, at *7. Rather, the record generally “should contain some 

evidence that permits an inference that the impairment existed before age 22 and is not of 

recent origin due to a traumatic event or some other changed circumstance.” Gomez v. 

Astrue, 695 F. Supp. 2d 1049, 1061 (C.D. Cal. 2010). Moreover, “courts have held that a 

valid qualifying IQ score obtained by the claimant after the age of 22 creates a rebuttable 

presumption that the claimant’s [intellectual disability] began prior to the age of 22, as it 

is presumed that IQ scores remain relatively constant during a person’s lifetime.” 

Schuler, 2010 WL 1443892, at *6 (collecting cases). 

 The ALJ declined to apply the presumption and found that Plaintiff’s low IQ score 

does not reflect his true cognitive functioning now or before the age of 22. (AR 27.) The 

ALJ erred in so finding. 

 Nothing in the record suggests that Plaintiff’s subaverage intellectual functioning 

was of recent origin. To the contrary, there is evidence that Plaintiff was in special 

education classes before dropping out of school after the ninth grade. The ALJ asked 

Plaintiff if he was in regular or special education classes, and he stated that he took 

classes “out in the special ed building.” (AR 52.) Consistent with this testimony, 

Dr. Bundy’s report notes that Plaintiff experienced academic struggles in school and 

received suspensions for fighting with classmates (AR 409), indicating potential deficits 

in adaptive functioning. Plaintiff also testified that he had some difficulty reading 

magazines and could spell only simple words. (AR 53.) 

 Because the severity of intellectual disability is established by subparagraphs A 

through D, the Court “does not assess severity in considering whether a claimant meets 

the requirements of Listing 12.05’s introductory paragraph.” McGrew, 2015 WL 

1393291, at *6. The introductory paragraph only requires evidence that “supports onset 

of the impairment before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (emphasis 

added). Circumstantial evidence can be sufficient and may include “difficulties with 

reading and writing, attendance of special education classes, and dropping out of school.” 

McGrew, 2015 WL 1393291, at *6; see Pedro, 849 F. Supp. 2d at 1011-12 (claimant may 

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show early onset under Listing 12.05 with circumstantial evidence such as “attendance in 

special education classes, dropping out of high school prior to graduation, difficulties in 

reading, writing or math, and low skilled work history”). 

 Here, there is evidence that Plaintiff has trouble reading, attended special 

education classes, dropped out of school after the ninth grade, and engaged in unskilled 

work in the construction industry. (AR 52-53, 68). This is sufficient evidence to support 

the onset of Plaintiff’s intellectual disability before age of 22. See Markle, 324 F.3d at 

189 (evidence that the claimant took special education classes, dropped out in tenth 

grade, and had a limited work history supported a finding that onset of intellectual 

disability occurred before age 22); Payne v. Astrue, No. CV-08-1753-PHX-LOA, 2010 

WL 654319, at *11 (D. Ariz. Feb. 23, 2010) (the claimant’s “participation in special 

education classes, poor academic performance, and low-skilled work history imply 

evidence of deficits in adaptive functioning during the developmental period”); Walberg 

v. Astrue, No. C08–0956–JCC, 2009 WL 1763295, at *9 (W.D. Wash. June 18, 2009) 

(participation in special education constitutes evidence of deficits in adaptive functioning 

during the developmental period); Hurst v. Colvin, No. 14-cv-222-SDD, 2015 WL 

5349358, at *6 (M.D. La. Aug. 19, 2015) (evidence that the claimant participated in 

special education and performed poorly in school supported onset of the impairment 

during the developmental period); Christner v. Astrue, 498 F.3d 790, 793 (8th Cir. 

2007) (evidence supported manifestation of impairment before age 22 including the 

claimant’s low-grade dropout and participation in special education). 

 In summary, the ALJ committed reversible error at step three by rejecting 

Plaintiff’s valid IQ of 56, finding that he did not have deficits in adaptive functioning, 

and concluding that no evidence supports onset of his intellectual disability during the 

developmental period. 

II. Remand 

 Having found that the ALJ erred, the Court has discretion to remand the case for 

further proceedings or for an award benefits. See Reddick v. Chater, 157 F.3d 715, 728 

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(9th Cir. 1998). This Circuit has “repeatedly held that a remand for further proceedings 

is unnecessary if the record is fully developed and it is clear from the record that the ALJ 

would be required to award benefits.” Holohan v. Massanari, 246 F.3d 1195, 1210 

(9th Cir. 2001). This rule recognizes the importance of expediting disability claims, 

especially where it is evident from the record that benefits should be awarded. Id. 

 Here, Plaintiff applied for supplemental security income more than five years ago, 

and the record is fully developed. Plaintiff has shown at step three of the evaluation 

process that he meets the listing for intellectual disability. He therefore is “presumed 

disabled, and no further inquiry is necessary.” Huber, 2010 WL 4684021, at *6. The 

proper remedy is a remand for payment of benefits. See Pedro v. Astrue, 849 F. Supp. 2d 

at 1016-17 (remanding for benefits where the claimant met listing 12.05); Gomez, 695 F. 

Supp. 2d at 1063 (same).3

IT IS ORDERED that the final decision of the Commissioner of Social Security 

is REVERSED and the case REMANDED for payment of benefits. The Clerk shall 

enter judgment accordingly and terminate the case. 

 Dated this 31st day of March, 2017. 

Douglas L. Rayes 

United States District Judge 

 

3

 Given this ruling, the Court need not address Plaintiff’s other challenges to Defendant’s decision. 

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