IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRENDA L. SHAW, *

 *

Plaintiff, *

 *

vs. * Civil Action No. 05-00365-CB-B

 *

JO ANNE B. BARNHART, *

Commissioner of * 

Social Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Brenda L. Shaw (“Plaintiff”) brings this action

seeking judicial review of the 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 (“Act”), 42 U.S.C. §§ 401 et seq. and

1381 et seq. This action was referred to the undersigned for

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Oral argument was waived. (Docs. 13 & 14). Upon consideration of

the administrative record and memoranda of the parties, it is

recommended that the decision of the Commissioner be REVERSED and

REMANDED. 

I. Procedural History

Plaintiff protectively filed an application for period of

disability and disability insurance benefits on September 7, 2000,

alleging that she became disabled on April 9, 1998 due to breathing

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Plaintiff previously filed applications for period of disability,

disability insurance benefits and supplemental security income benefits (Id.

at 97) on July 1, 1999, but those applications were denied initially and upon

reconsideration on September 16, 1999 and October 28, 1999. After a hearing

on March 22, 2000 (Id. at 291-316), ALJ Ricardo M. Ryan rendered an

unfavorable decision on August 22, 2000. (Id. at 32-51). In adjudicating

Plaintiff’s current application for benefits, the ALJ did not reopen the

previous decision and Plaintiff has not raised the issue before this Court. 

Accordingly, the finding that Plaintiff was not disabled as of August 22, 2000

is a fact for purposes of the present action. Additionally, a review of the

September 2003 hearing reveals that Plaintiff’s counsel expressly requested

that the alleged onset date be amended to August 23, 2000, and the ALJ granted

said request. (Tr. 320).

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problems, deafness, emphysema, asthma and back problems. (Tr. 17,

73-76, 88, 97, 282-284, 320, 336). Plaintiff’s applications were

denied by an August 22, 2000 ALJ decision (Id. at 32-47), and as a

result, her alleged onset date was amended to August 23, 2000.1

(Id. at 17, 55-61, 285-290, 320). Plaintiff filed a request for a

hearing before an Administrative Law Judge (“ALJ”) on May 25, 2001.

(Id. at 62). On September 24, 2003, ALJ Stuart A. Wein (“ALJ

Wein”) conducted an administrative hearing which was attended by

Plaintiff, her representative, a witness for Plaintiff, and a

vocational expert (“VE”). (Id. at 317-345). On October 24, 2003,

ALJ Wein issued an unfavorable decision (Id. at 14-23) in which he

found that Plaintiff has the severe impairments of borderline

intellectual functioning, hearing loss, COPD and osteoarthritis,

but that her impairments do not meet or equal a Listings impairment

at 20 C.F.R., Part 404, Subpart P, Appendix 1. (Tr. 20, 22). He

further found that Plaintiff retains the residual functional

capacity (“RFC”) for light work with moderate limitations in her

ability to understand and carry out detailed instructions, to

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perform work requiring fine bilateral hearing or work involving

environmental pollutants or hazardous machinery, and that she could

return to her past relevant work (“PRW”) as a cashier and

pricer/sorter. (Id. at 21-22). Plaintiff’s request for review was

denied by the Appeals Council (“AC”) on April 26, 2003; thus, the

ALJ’s decision became the final decision of the Commissioner. (Id.

at 4-6, 11-13). 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).

II. Background Facts

Plaintiff was born on November 28, 1962, and was 40 years old

at the time of the administrative hearing. (Tr. 18, 322-323).

Plaintiff repeated the 2nd grade, was in special education classes,

and left school after the 6th grade because she was pregnant. (Id.

at 18, 94, 323, 335, 342). At the September 24, 2003 hearing,

Plaintiff testified that she is able to do simple reading, writing

and math, can pay her bills, and has a driver’s license (but took

her five times to pass it). (Id. at 323-324). She reported that

her daily activities include reading the newspaper, bible or books

about two hours per day; talking on the telephone daily; readying

her children for school; washing clothes; house cleaning; and

limited grocery shopping and cooking. (Id. at 333). She does not

perform any outdoor chores or yard work due to her asthma and

breathing difficulties. (Id. at 102-103, 332-334). 

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Plaintiff has PRW as a cashier and clothes sorter/pricer

(tagger). (Id. at 324-325). Her last job was from 1992-1998,

working full time as a cashier and clothes pricer/sorter. (Tr.

324-326). According to Plaintiff, she was moved from the cashier

position to the clothes pricer/sorter position because she could

not hear well, and she eventually quit because the fumes from the

clothing fibers caused her asthma to flare up, and she was having

to go to the doctor on lunch breaks for breathing treatments. (Id.

at 325). Plaintiff testified that she attempted to find other

employment at various retail outlets; however, she has not had any

success. (Id. at 327). 

Plaintiff testified that the main medical problem which

prevents her from working is her “breathing;” that she has asthma,

which is aggravated by the weather and outdoors, so she tries to

stay inside. (Id. at 332-333, 327-329). Her medications include

Theo-24, Zyrtec, Zoloft, Vanceril inhaler (3 times per day),

Serevent inhaler (2 puffs every 12 hours), Albuterol inhaler (2

puffs per day), Albuterol sulfate (3-4 times per day) and Eggic

Plus. (Id. at 116, 328). Additionally, Plaintiff testified that

she has a hearing impairment which prevents her from being able to

work. (Id. at 330-332, 336). According to Plaintiff, she is

totally deaf in her left ear, and has only 10 percent hearing in

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Plaintiff’s mother testified that she has no hearing, and that while

they have checked into obtaining hearing aids, the doctor told them it would

not do any good as she is totally deaf in one ear and has only 10 percent in

the other, and a hearing aid may create a fungus in her ear and destroy what

is left of her hearing; she added that they have no money to buy a hearing

aid. (Id. at 338-339, 343-344). 

3

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

her right ear.2 (Tr. 332). 

III. Issues on Appeal

A. Whether the ALJ erred by failing to find that Plaintiff meets

Listing 12.05C?

B. Whether the ALJ erred by finding that Plaintiff can return to

her past relevant work?

C. Whether the ALJ erred by failing to address Plaintiff’s mental

limitations in accordance with 20 C.F.R. §§ 404.1520a and

416.920a?

IV. Analysis

A. Standard of Review

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

is a limited one. This 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

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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

6

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

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.

1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove her 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); 20 C.F.R. §§ 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

 See, e.g., Crayton v. Callahan,

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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 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 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)).

7

120 F.3d 1217, 1219 (11th Cir. 1997). 

1. Whether the ALJ erred by failing to find that

Plaintiff meets Listing 12.05C?

Plaintiff claims that the ALJ erred by failing to find that

she meets Listing 12.05C because: 1) he did not mention, much less

consider, the Listing in his decision; 2) Dr. McCleary’s March 31,

2001 valid IQ test scores (Verbal IQ of 66, Performance IQ of 64

and Full Scale IQ of 62) establish that she meets the first prong

of Listing 12.05C; and 3) her severe physical impairments of

hearing loss, COPD and osteoarthritis constitute additional and

significant work related physical limitations of function to

establish that she meets the second prong of Listing 12.05C. Based

upon a careful review of the record, the undersigned finds that

substantial evidence does not support the ALJ’s determination that

Plaintiff does not meet Listing 12.05C. 

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Cobb v. Barnhart, 296 F. Supp. 2d 1295 (N.D. Ala. 2003); Davis v.

Shalala, 985 F.2d 531 (11th Cir. 1993)(quoting Listing 12.05C).

6

See also Wilkinson on behalf of Wilkinson v. Bowen, 847 F.2d 660, 662

(11th Cir. 1987); Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991);

Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Berryman v. Massanari,

170 F. Supp. 2d 1180, 1186-1187 (N.D. Ala. 2001); Cobb, 296 F. Supp. at 1296-

1297. 

8

Listing 12.05C falls under § 12.00 MENTAL DISORDERS and

provides that:

Mental 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. The

required level of severity for this disorder is met when

the requirements in A, B, C, or D are satisfied ···· C.

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. 

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (emphasis added).5 A

claimant meets the criteria for presumptive disability under

Listing 12.05C when she presents a valid IQ score of 60-70, an

onset of impairment before age 22 and evidence of an additional and

significant mental or physical impairment (i.e., having more than

“minimal effect” on the claimant’s ability to perform basic work

activities). See, e.g., Edwards by Edwards v. Heckler, 755 F.2d

1513, 1516 (11th Cir. 1985).6 Claimant bears this burden. Id. In

order to be considered disabling, an impairment must be accompanied

by work-related functional limitations. See, e.g., Gross v.

Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). In the Eleventh

Circuit, it is presumed that a person’s I.Q. remains fairly

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constant throughout her life, and a valid I.Q. test score meeting

the Listing criteria creates a rebuttable presumption that the

condition manifested itself before age twenty-two. See, e.g.,

Hodges v. Barnhart, 276 F.3d. 1265, 1268-1269 (11th Cir. 2001). A

valid I.Q. test score need not be conclusive of mental retardation

where the I.Q. score is inconsistent with other evidence in the

record on the claimant’s daily activities. See, e.g., Lowery v.

Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).

In his decision, the ALJ stated as follows with regard to

whether Plaintiff’s impairments meet or equal a Listings

impairment:

A consultative examination was performed by Gerald E.

McCleary, Ph.D., on March 31, 2001. The claimant reported

to Dr. McCleary that her view of the future was hopeless

and her greatest fear was her breathing problems. The

results of the Weschler Adult Intelligence Scale - III

resulted in a Verbal IQ of 66, a Performance IQ of 64,

and a Full Scale IQ of 62. This level of functioning

placed her in the range of mild mental retardation. She

did not, however, report or exhibit deficits in at least

two domains of adaptive living skills, so she failed to

meet the diagnostic criteria for a diagnosis of mild

mental retardation. She appeared to have a normal life

style. It was Dr. McCleary’s diagnostic impression that

the claimant had Borderline Intellectual Functioning and

history of depression, NOS. She was taking an

antidepressant and being seen at the Mobile Mental Health

Center. These interventions appeared to be effective and

her depression was controlled at this time [ ] . . . .

* * *

. . . . the claimant has been treated at the Franklin

Memorial Primary Health Center since November, 1998 for

. . . depression . . . Dr. Carroll prescribed [her] . .

. . a variety of medications. On January 31, 2002, Dr.

Carroll stated the claimant appeared to be improving and

not getting worse . . . .

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The claimant has received intermittent treatment from

Mobile Mental Health for major depression. When seen on

January 11, 2002, her mood and affect were normal. She

had complaints of problems with her children but she did

not wish to see the doctor. She was last seen on July 10,

2003 with complaints of sleep disturbance, depressed mood

and tearfulness. She complained of stress due to her

inability to find work and continued to express concerns

with her hearing problems, and with her children who were

having trouble with the law [] . . . .

The undersigned Administrative Law Judge concludes the

medical evidence indicates that the claimant has

borderline intellectual functioning, hearing loss, COPD

and osteoarthritis, impairments that are severe within

the meaning of the Regulations but not severe enough to

meet or medically equal one of the impairments listed in

Appendix 1, Subpart P, Regulations No. 4. No treating or

examining physician has set forth findings equivalent in

severity to the criteria of any listed impairment.

* * *

. . . . Dr. McCleary found the claimant did not exhibit

deficits in at least two domains of adaptive living

skills, and she failed to meet the diagnostic criteria

for a diagnosis of mild mental retardation. She appeared

to have a normal life style [] . . . . According to her

testimony she was able to do household chores, cook,

read, pay her own bills and search for jobs . . . . []

For the foregoing reasons, the claimant’s combined

impairments are found to not rise to the level of

severity to meet or equal a listing.

* * * 

Based upon a thorough review of the entire record . . .

. the claimant retains the residual functional capacity

for light work, with moderate limitations in the ability

to understand and carry out detailed instructions . . .

. the claimant’s mental depressive disorder is not of a

severity to preclude the ability to work. GAF scores . .

. reflect slight deficits of functioning . . . . []

(Tr. 20-21 (citations omitted)). 

In his decision, the ALJ wholly failed to make any reference

whatsoever to Listing 12.05C, and it is not clear from the decision

that he considered Plaintiff’s impairments in light of this

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Listing. His discussion at step three is very general, and he

perfunctorily finds, based on Dr. McCleary’s evaluation (Tr. 149-

151), that Plaintiff did not exhibit deficits in at least two

domains of adaptive living skills, that she failed to meet the

diagnostic criteria for a diagnosis of mild mental retardation, and

that she lead a normal life. From the ALJ’s decision, it is simply

not clear whether he concluded that Plaintiff’s I.Q. scores, which

on their face met the first prong of 12.05C, were invalid, or if,

and on what basis, he concluded that Plaintiff had not manifested

deficits in adaptive functioning behavior before age 22. This is

particularly problematic where the record reflects evidence that

Plaintiff repeated the second grade, was in special education

classes, left school after the sixth grade, and has an abbreviated

employment history involving unskilled labor. See supra. It may

well be that Plaintiff will have difficulty proving that she meets

Listing 12.05C; however, the undersigned cannot, at this juncture,

find that the ALJ’s decision is supported by substantial evidence

since he did not address the evidence in light of the relevant

listing, namely 12.05C. To find otherwise would require the

undersigned to speculate and surmise about the rationale underlying

the ALJ’s decision, and that is not the Court’s function. See,

e.g., Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)

(providing that regardless of whether there was enough evidence in

the record to support the ALJ’s decision, principles of

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administrative law require ALJ to rationally articulate the grounds

for the decision and confines the court’s review to the reasons

supplied by the ALJ); Deal v. Barnhart, 2003 U.S. Dist. LEXIS 17432

(N.D. Ill. 2003) (stating that the court was unwilling to find that

the ALJ’s decision was supported by substantial evidence when he

did not address the evidence in light of the relevant listing);

Ramos v. Barnhart, 2003 U.S. Dist. LEXIS 7463 (S.D.N.Y.) (remanding

the case where the ALJ failed to explain the applicability of the

critical regulation relating to plaintiff’s claim); See also Fitts

v. Massanari, 2001 WL 530475 (S.D. Ala. May 7, 2001) (holding that

the ALJ erred by failing to mention Listing 12.05C in his decision

and to analyze the evidence in light of the specific requirements

of the Listing); Chunn v. Barnhart, 397 F.3d 667, 671-672 (8th Cir.

2005) (holding that the ALJ’s decision, which did not even mention

Listing 12.05C or otherwise indicate that he considered it relevant

to plaintiff’s claim, was not based on substantial evidence).

Accordingly, this case should be remanded for further consideration

and findings with respect to whether Plaintiff meets the

requirements for Listing 12.05C in light of the record evidence. 

Upon remand, the ALJ should also reexamine the issue of

whether Plaintiff can return to her past relevant work. During the

administrative hearing, the Vocational Expert indicated that if

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Plaintiff is unable to perform work requiring fine bilateral

hearing, she would be precluded from performing the cashier

position; and that if she is restricted from moderate exposure to

fumes, odors, dust, gases, poor ventilation, she would be precluded

from the sorter job as well. (Tr. 342-343). The Vocational Expert

further seemed to opine that if those jobs were eliminated, given

Plaintiff’s age, education and borderline intellectual functioning,

there would not be any jobs that she could perform. (Id. at 342).

Although the ALJ concluded that Plaintiff did not have the ability

to perform work requiring fine bilateral hearing, he nevertheless

found that Plaintiff could return to cashier work. The ALJ also

determined that Plaintiff could not work around “environmental

pollutants;” however, it is not clear if by this finding, he

determined that she was restricted from moderate exposure to fumes,

odors, dust, gases, and poor ventilation. If so, the Vocational

Expert’s testimony would appear to preclude her from the sorter

position. Thus, upon remand, the ALJ should also clarify

Plaintiff’s residual functional limitations so that the Court can

conduct a meaningful review of the ALJ’s findings in light of the

record evidence.

V. Conclusion

For the reasons set forth, and upon consideration of the

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administrative record and memoranda of the parties, it is

recommended 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

for further proceedings consistent with this recommendation. 

The attached sheet contains important information regarding

objections to this report and recommendation.

DONE this the 13th day of September, 2006.

 /s/ Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything

in it must, within ten days of the date of service of this document, file

specific written objections with the clerk of court. Failure to do so

will bar a de novo determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual findings

of the magistrate judge. See 28 U.S.C. § 636(b)(1))c); Lewis v. Smith,

855 F.2d 736, 738 (11th Cir. 1988). The procedure for challenging the

findings and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by

28 U.S.C. § 636(b)(1)(A), by filing a “Statement of Objection

to Magistrate Judge’s Recommendation” within ten days after

being served with a copy of the recommendation, unless a

different time is established by order. The statement of

objection shall specify those portions of the recommendation

to which objection is made and the basis for the objection.

The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation

should be reviewed de novo and a different disposition made.

It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the

original brief may be submitted or referred to and

incorporated into the brief in support of the objection.

Failure to submit a brief in support of the objection may be

deemed an abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a Court

of Appeals; only the district judge’s order or judgment can be appealed.

2. Opposing party’s response to the objection. Any opposing party may

submit a brief opposing the objection within ten (10) days of being

served with a copy of the statement of objection. Fed. R. Civ. P. 72;

SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). Pursuant

to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds

that the tapes and original records in this action are adequate for

purposes of review. Any party planning to object to this recommendation,

but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the

United States will pay the cost of the transcript.

/s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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