IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SERENA K. EDMONDS, *

 * 

Plaintiff, *

*

vs. * CIVIL ACTION 08-00553-B

*

MICHAEL J. ASTRUE, *

Commissioner of *

Social Security, *

*

Defendant. *

ORDER

Plaintiff Serena K. Edmonds (“Plaintiff”) brings this action

seeking judicial review of a final decision of the Commissioner of

Social Security denying her claim for disability insurance benefits

and supplemental security income under Titles II and XVI of the

Social Security Act, 42 U.S.C. §§ 401 et seq., and 1381 et seq. On

September 9, 2009, the parties consented to have the undersigned

conduct any and all proceedings in this case. (Doc. 15). Thus,

this case was referred to the undersigned to conduct all

proceedings and order the entry of judgment in accordance with 28

U.S.C. § 636( c) and Fed.R.Civ.P. 73. (Doc. 16). Oral arguments

were held on September 16, 2009. Upon careful consideration of the

administrative record, the oral arguments, and the memoranda of the

parties, the decision of the Commissioner is hereby REVERSED and

REMANDED.

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1

Plaintiff filed a prior application for SSI on October 3,

2001, which was denied initially and was not appealed.

Accordingly, the issue before this Court, pursuant to 20 C.F.R.

§§ 404.957(c)(1) and 416.1457(c)(1), is whether Plaintiff was

disabled from her alleged onset date of March 15, 2003. (Tr. 49-

50, 66-68, 333-335). 

2

I. Procedural History

Plaintiff protectively filed applications for disability

insurance benefits and supplemental security income on August 3,

2004. Plaintiff alleges that she has been disabled since March 15,

2003, due to a learning disability, illiteracy, obesity, swelling

in her left foot and tingling in her right arm and leg1. (Tr. 51-

52, 99, 100-102, 336, 337-345). Plaintiff’s applications were

denied at the initial level, and she filed a timely Request for

Hearing before an Administrative Law Judge. (Tr. 51-52, 71, 341-

345).

On June 27, 2006, Administrative Law Judge Warren Hammond

(“ALJ Hammond”) held an administrative hearing which was attended

by Plaintiff, her representative, a medical expert and a vocational

expert (“VE”). (Tr. 369-388). On August 21, 2006, ALJ Hammond

issued an unfavorable decision finding that Plaintiff is not

disabled. (Tr. 53-61). Plaintiff requested review of the ALJ’s

decision, and on December 20, 2006, the Appeals Council (“AC”)

remanded the case to the ALJ for further development regarding

Plaintiff’s mental impairment and her subjective complaints, and

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for further consideration of Plaintiff’s medically determinable

impairments. (Tr. 90-92). A second hearing was held on July 25,

2007; however, no testimony was received. The ALJ adjourned the

hearing so that Plaintiff could obtain legal representation. (Tr.

365-368). 

 On December 13, 2007, a third hearing was held, which was

attended by Plaintiff, her representative and a vocational expert.

(Tr. 348-363). On December 28, 2007, ALJ Hammond issued an

unfavorable decision, again finding that Plaintiff is not disabled.

(Tr. 15-24). Plaintiff filed a request for review, and on August

25, 2008, the Appeals Council denied Plaintiff’s request. Thus,

the ALJ’s decision became the final decision of the Commissioner in

accordance with 20 C.F.R. § 404.981. (Tr. 7-9). The parties agree

that this case is now ripe for judicial review and is properly

before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

II. Issue on Appeal

A. Whether the ALJ erred in finding that Plaintiff does not

meet Listing 12.05( c). 

III. Factual Background

Plaintiff was born on March 1, 1981, and was 25 years old at

the time of the June 2006 administrative hearing. (Tr. 51, 100,

341, 374). Plaintiff finished the 12th grade in the high school

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2

Educable mentally retarded. See, www.acronymfinder.com.

Last visited August 18, 2009).

4

EMR2 program, and received an occupational diploma. (Tr. 223-

224). Plaintiff has past work experience as a fast-food cook.

She testified that she mostly cooked; however, they would also

assign her cashier duties when needed. (Tr. 213, 353, 360, 376).

According to Plaintiff, she last worked in March of 2003. She was

terminated by the new owners because she did not have

transportation to work.(Tr. 375-376). Plaintiff testified that

she is unable to work because of pain in her back and her inability

to read. (Tr. 376-377). Plaintiff reported that her normal weight

is approximately 310 pounds; however, she put on weight with the

birth of her first child, and now weights 350 pounds. (Tr. 375) 

Plaintiff also testified that she is married, and has two

small children. (Tr. 352, 374) Plaintiff reported that she can

cook and feed herself, bathe and dress herself, and that she can do

light housework. (Tr. 357, 380-381) Plaintiff also indicated that

her husband helps with the grocery shopping because she cannot read

or write. ( Tr. 352, 357, 381). 

Charles Smith, M.D., a Medical Expert, stated that he had

reviewed all the evidence in Plaintiff’s file, and opined that

Plaintiff’s functional limitations are not severe. (Tr. 385).

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This Court’s review of the Commissioner’s application of

legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999

(11th Cir. 1987).

5

IV. Analysis

A. Standard of Review

In reviewing claims brought under the Act, this Court’s role

is a limited one. The Court’s review is limited to determining 1)

whether the decision of the Secretary is supported by substantial

evidence and 2) whether the correct legal standards were applied.

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).3 A court

may not decide the facts anew, reweigh the evidence, or substitute

its judgment for that of the Commissioner. Sewell v. Bowen, 792

F.2d 1065, 1067 (11th Cir. 1986). The Commissioner’s findings of

fact must be affirmed if they are based upon substantial evidence.

Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding

substantial evidence is defined as “more than a scintilla but less

than a preponderance” and consists of “such relevant evidence as a

reasonable person would accept as adequate to support a

conclusion[]”). 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); Short v. Apfel, 1999 U.S. DIST. LEXIS 10163 (S.D. Ala.

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The claimant must first prove that he or she has not

engaged in substantial gainful activity. The second step

requires the claimant to prove that he or she has a severe

impairment or combination of impairments. If, at the third step,

the claimant proves that the impairment or combination of

impairments meets or equals a listed impairment, then the

claimant is automatically found disabled regardless of age,

education, or work experience. If the claimant cannot prevail at

the third step, he or she must proceed to the fourth step where

the claimant must prove an inability to perform their past

relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

1986). In evaluating whether the claimant 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; (4) the claimant’s

age, education and work history. Id. at 1005. Once a claimant

meets this burden, it becomes the Commissioner’s burden to prove

at the fifth step that the claimant is capable of engaging in

another kind of substantial gainful employment which exists in

significant numbers in the national economy, given the claimant’s

6

June 14, 1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove his disability. 20 C.F.R. §§ 404.1512,

416.912. Disability is defined as the “inability to do any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for

a continuous period of not less than twelve months.” 42 U.S.C. §§

423(d)(1)(A), 404.1505(a), 416.905(a). The Social Security

regulations provide a five-step sequential evaluation process for

determining if a claimant has proven her disability. 20 C.F.R. §§

404.1520, 416.920.4

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residual functional capacity, age, education, and work history. 

Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the

Commissioner can demonstrate that there are such jobs the

claimant can perform, the claimant must prove inability to

perform those jobs in order to be found disabled. Jones v.

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)). 

5

While the undersigned has examined all of the medical

evidence contained in the record, including that which was

generated before Plaintiff’s alleged onset date, only that

evidence which is relevant to the issues before the Court is

7

In the case sub judice, the ALJ determined that while Plaintiff

has the severe impairments of obesity and mild mental retardation,

they do not meet or medically equal the criteria for any of the

impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1,

Regulations No. 4. (Tr. 20). According to the ALJ, while Plaintiff

has a valid Verbal, Performance or Full Scale I.Q. score, she has

not demonstrated any defects in adaptability as required in order

to meet any listing in 12.05 under the category for mental

retardation. The ALJ concluded that Plaintiff retains the RFC to

perform unskilled light work, with occasional bending, stooping or

climbing. (Tr. 20). He also found that Plaintiff is unable to

perform her past relevant work, and relying on the testimony of the

VE, found that Plaintiff can perform other work in the national and

regional economy, such as housekeeper, presser, and cafeteria

worker. (Tr. 22, 23-24). Accordingly, the ALJ concluded that

Plaintiff is not disabled. (Tr. 24).

The relevant evidence of record5 includes school records from

Case 1:08-cv-00553-B Document 17 Filed 03/24/10 Page 7 of 18
included in the summary.

8

Mobile County Schools, which reflect that Plaintiff graduated from

Vigor High School in June 2000, and received a Certificate of

Education. Those records also reflect that Plaintiff repeated the

first grade, and that she was in special education classes from

first grade through 12th grade. (Tr. 147, 223-224). Initial IQ

testing dated March 17, 1989, when Plaintiff was eight years old and

was repeating the first grade, reflects a verbal IQ of 65,

performance IQ of 69, and full scale IQ of 64, which categorizes her

as being in the mild mentally deficient range. (Tr. 147-148).

School records dated March 25, 1992, when Plaintiff was in the

5th grade, reflect that IQ testing yielded a verbal IQ of 66,

performance IQ of 73 and a full-scale IQ of 68, which placed her in

the mild mentally deficient range. (Tr. 138-140).

School records dated January 6, 1993 reflect that IQ testing

yielded a verbal IQ of 64, performance IQ of 73, and full-scale IQ

of 66. Other testing reflected that Plaintiff’s general adaptive

behavior is moderately deficient. (Tr. 141-146). The Eligibility

Determination Committee determined on April 29, 1993 that Plaintiff

qualified under the state guidelines for special education services,

and recommended that she continue to be placed in EMR classes. (Tr.

130).

Plaintiff was again tested on March 19, 1996, when she was 15

Case 1:08-cv-00553-B Document 17 Filed 03/24/10 Page 8 of 18
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years old, and school records reflect that the adaptive behavior

test showed that Plaintiff’s self-care, social and occupational

skills were poor, and that her communication, academic and full

scale adaptive behavior were very poor. (Tr. 124-127). 

On June 9, 1999, when Plaintiff was in the 11th grade, the

Eligibility Determination Committee again determined that Plaintiff

continued to be eligible for special services. (Tr. 118-123).

On August 14, 2001, Plaintiff underwent a psychological

evaluation by James F. Chudy, Ph.D. Plaintiff reported that her

daily activities included getting up between 7:00 and 9:00, eating

two or three meals, watching televison, listening to the radio,

visiting neighbors, completing domestic chores, taking walks, taking

a bath, and going to bed between 9:00 and 10:00. Dr. Chudy reported

that IQ testing showed Plaintiff’s verbal IQ of 71, performance IQ

of 72, and full-scale IQ of 69, indicating mild retardation. He

opined that Plaintiff’s ability to understand and complete simple

verbal instructions seemed adequate. (Tr. 230-232). 

Psychologist William A. Lynn, Ph.D., completed a Mental

Residual Functional Capacity Assessment on September 26, 2001. He

opined that Plaintiff is moderately limited in her ability to

understand, remember and carry out detailed instructions, and to

maintain attention and concentration for extended periods. In the

area of adaptation, Dr. Lynn opined that Plaintiff is moderately

limited in her ability to respond appropriately to changes in the

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work setting, and to set realistic goals or make plans independently

of others. He further opined that Plaintiff is not significantly

limited in any area of social interaction, or in any other area of

understanding and memory, sustained concentration and persistence,

or adaptation. (Tr. 255-257). 

Dr. Lynn completed a Psychiatric Review Technique form on the

same day, in which he opined that Plaintiff is moderately limited

in her ability to maintain concentration, persistence or pace, is

mildly to moderately limited in her ability to maintain social

functioning, and is mildly limited in her activities of daily

living. (Tr. 259-272). 

Plaintiff underwent a physical exam on December 7, 2004 by

Michael C. Madden, M.D., Ph.D. Her physical exam was normal except

for lumbar tenderness. Dr. Madden’s impressions were of back pain

and left foot and ankle pain, and he opined that Plaintiff’s

abilities to sit, stand, walk, lift, carry, handle objects, hear,

speak, and travel were normal. (Tr. 273-275). 

Ellen N. Eno, Ph.D., completed a Mental Residual Functional

Capacity Assessment form on December 21, 2004. She opined that

Plaintiff is moderately limited in her ability to understand and

remember detailed instructions, to carry out detailed instructions

and to maintain attention and concentration for extended periods.

She further opined that Plaintiff has no other significant

limitation in her ability to understand and remember or in

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concentration and persistence. Dr. Eno opined that Plaintiff has

no significant limitation in social interaction or in adaptation.

It is Dr. Eno’s opinion that Plaintiff can understand/remember/carry

out very short and simple instructions, and can attend for at least

two hour periods without special supervision and within a

traditional work environment. (Tr. 276-278).

Dr. Eno completed a Psychiatric Review Technique form on

December 21, 2004, in which she opines that Plaintiff is mildly

limited in her activities of daily living and in maintaining social

functioning, and is moderately limited in maintaining concentration,

persistence or pace. (Tr 281-294). 

Plaintiff was evaluated by orthopedist William A. Crotwell,

III, M.D., on April 19, 2007. Plaintiff’s physical exam was normal

except for difficulty bending, possibly due to severe obesity,

forward flexion 70 percent of normal, extension 40 percent of

normal, and straight leg raise to 90 with back pain on the right.

Dr. Crotwell diagnosed Plaintiff with lumbar strain, opining that

she had no neurological or major radicular problem, could perform

light and sedentary work, and could work a full eight-hour workday.

(Tr. 295-296). 

Plaintiff was evaluated on April 23, 2007 by John W. Davis,

Ph.D. Dr. Davis administered the WAIS-III test, which indicated a

full scale IQ of 63, verbal IQ of 66 and performance IQ of 64, which

places Plaintiff in the mild range of mental retardation. Dr. Davis

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opined that Plaintiff’s ability to function in an age-appropriate

manner cognitively, communicatively, and socially, and her capacity

to show concentration, persistence and pace in an age appropriate

manner are mildly to moderately impaired. He further opined that

she has the ability to do simple, routine, repetitive type tasks,

can get along with others, and can mange any benefits awarded her.

(Tr. 298-303). 

Dr. Davis completed a Medical Source Opinion Form (Mental) on

the same day, in which he opined that Plaintiff is moderately

limited in her ability to use judgment in detailed or complex workrelated decisions, to understand, remember, and carry out detailed

or complex instructions and to maintain attention, concentration or

pace for periods of at least two hours. He further opined that

Plaintiff is mildly limited in her ability to respond appropriately

to supervisors, co-workers, customers or other members of the

general public, to use judgment in simple one or two step workrelated decisions, to deal with changes in a routine work setting,

to understand, remember, and carry out simple, one and two-step

instructions, and to maintain social functioning and activities of

daily living. (Tr. 304-305). 

1. Whether the ALJ erred in finding that

Plaintiff does not meet Listing

12.05C. 

Plaintiff contends that the ALJ erred by failing to find that

she meets Listing 12.05C based on a lack of deficits in adaptability

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manifested before age 22. According to Plaintiff, Listing 12.05C

requires that Plaintiff have a lifelong history of mental

retardation, a valid verbal, performance or full-scale IQ of 60-70,

and a physical or other mental impairment imposing additional and

significant work-related limitation of function. Defendant argues

that Plaintiff must first show that her impairment satisfies the

description in the introductory paragraph of Listing 12.05 – that

her “significantly subaverage general intellectual functioning with

deficits in adaptive functioning initially manifested during the

development period,” onset before age 22 – and then show valid

verbal, performance, or full scale IQ of 60 through 70 and a

physical or other mental impairment that imposes an additional and

significant work-related limitation. According to Defendant,

Plaintiff has failed to show deficits in her adaptive behavior

manifested prior to age 22.

In finding that Plaintiff does not meet Listing 12.05, the ALJ

stated as follows:

While the claimant has valid Verbal, Performance or Full

Scale I.Q. score, as discussed in detail below, she has

not demonstrated any defects in adaptability as required

in order the meet any listing in 12.05 under the category

for mental retardation. . . . 

As indicated above, the claimant does not possess any

deficits in adaptability despite her mild mental

retardation at this time or prior to age 22.

In activities of daily living, the claimant has mild

restriction. The claimant related to Dr. Davis that she

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lives in an apartment with her husband and child. She

reported that she spends her day cooking, cleaning,

praying, and carrying for her child, and watching

television . . . . 

(Tr. 20, 22).

Listing 12.05, the listing category for mental retardation,

begins with an introductory paragraph, which states that "[m]ental

retardation 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."

20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. The listing

further provides that the "required level of severity for this

disorder is met when the requirements in A, B, C, or D are

satisfied." Id. Subsection C requires a claimant to demonstrate

"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 § 12.05C.

The Eleventh Circuit has recognized that in order to be

considered for disability benefits under Listing 12.05, a claimant

must (1) have significantly subaverage general intellectual

functioning; (2) have deficits in adaptive functioning; and (3) have

manifested deficits in adaptive behavior before age 22. Pettus v.

Astrue, 226 Fed. Appx. 946, 2007 U.S. App. LEXIS 8136 (llth Cir.

April 5, 2007)(citing Crayton v. Callahan, 120 F.3d 1217, 1219 (11th

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Cir. 1997)). In addition, for presumptive disability under 12.05C,

the claimant must have (1) a valid IQ score of 60 through 70

inclusive, and (2) an additional mental or physical impairment

significantly affecting the claimant's ability to work. Id. at

1219-1220. 

In Hodges v. Barnhart, 276 F. 3d 1265(llth Cir. 2001), the

Eleventh Circuit held that “there is 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.” Hodges, 276 F. 3d at 1266, 1268-69. According to the court,

absent evidence of a sudden trauma causing mental retardation, it

was error for the ALJ not to recognize the presumption that the

claimant manifested a mental impairment before the age of 22. Id.

Later, in Grant v. Astrue, 255 Fed. Appx. 374, 2007 U. S. App.

LEXIS 26540 (llth Cir. 2007), the plaintiff argued that the ALJ

applied an improper legal standard where he held that she did not

demonstrate deficits in more than one area of adaptive functioning

before the age of 22; thus, did not meet Listing 12.05C after first

determining that her IQ scores were valid, and that she possessed

a physical or mental impairment that imposed an additional and

significant work-related limitation. Id. at 375. Upon review, the

Eleventh Circuit held that the ALJ erred because he did not give

the plaintiff the benefit of the presumption recognized in Hodges,

but instead required her to demonstrate deficits in more than one

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area of adaptive functioning before the age of 22. According to

the Court, the plaintiff was entitled to the benefit of the

presumption, and upon remand, the ALJ was to determine whether

there was sufficient evidence to rebut the presumption that the

plaintiff manifested deficits in adaptive functioning before the

age of 22. Id.

Upon a careful review of the ALJ’s decision in this case, it

is clear that he employed an improper legal standard because he did

not give Plaintiff the benefit of the presumption to which she was

entitled. The ALJ specifically found that Plaintiff’s IQ scores

were valid, and that she possessed the severe impairments of mild

mental retardation and obesity (Tr. 20); however, he then held that

she had failed to demonstrate any defects in adaptability which

was required in order to meet any listing in 12.05. This was error

because once Plaintiff presented valid IQ scores and an additional

significant impairment, she was entitled to the presumption that

she manifested deficits in adaptive functioning before the age of

22, and the burden then rested with the ALJ to determine whether

there was sufficient evidence to rebut the presumption. In this

case, the ALJ held that the claimant does not possess any deficits

in adaptability at this time or prior to age 22, and noted as

follows: 

In activities of daily living, the claimant

has mild restriction. The claimant related to

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Dr. Davis that she lives in an apartment with her

husband and child. She reported that she spends

her day cooking, cleaning, Praying, anc carrying [sic]

for her child, and watching television.

(Tr. 22). 

However, the record reflects that Plaintiff is unable to read

and write; that she cannot shop by herself; that she watches

television, but cannot report what she watched; that she cannot

count money; that she failed the oral driver’s license test four

times; that she cooks the same meals over again and cannot pay

bills. (Tr.169-173). Additionally, Plaintiff’s school records

reflect that she repeated the first grade, that she was in special

education classes throughout school and that she received an

occupational diploma. Moreover, Plaintiff’s work history reports

reflect that the majority of her jobs were held for three months or

less. (Tr. 213). Because a careful review of the record

demonstrates that the ALJ failed to afford Plaintiff the

presumption to which she was entitled, and that his determination

that Plaintiff did not have deficits in her adaptive functioning

prior to age 22 is not supported by substantial evidence, this case

must be reversed and remanded. 

V. Conclusion

For the reasons set forth, and upon careful consideration of

the administrative record, oral arguments and memoranda of the

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parties, it is ORDERED that the decision of the Commissioner of

Social Security, denying Plaintiff’s claim for disability insurance

benefits and supplemental security income be REVERSED and REMANDED.

 DONE this the 24th day of March, 2010.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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