IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID L. WILLIAMS, *

*

 Plaintiff, * CIVIL ACTION NO. 14-00351-B

 *

vs. *

*

CAROLYN W. COLVIN, *

Commissioner of Social *

Security, *

 *

Defendant. *

ORDER

Plaintiff David L. Williams (hereinafter “Plaintiff”), 

seeks judicial review of a final decision of the Commissioner of 

Social Security denying his claim for supplemental security 

income under Title XVI of the Social Security Act, 42 U.S.C. §§ 

1381, et seq. On June 2, 2015, the parties consented to have 

the undersigned conduct any and all proceedings in this case. 

(Doc. 19). Thus, the action 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 Federal Rule of Civil 

Procedure 73. Upon careful consideration of the administrative 

record and the memoranda of the parties, it is hereby ORDERED

that the decision of the Commissioner be REVERSED and REMANDED

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 1 of 27
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for further proceedings not inconsistent with this decision.1 

I. Procedural History

Plaintiff protectively filed an application for 

supplemental security income on April 5, 2011. (Tr. 130). 

Plaintiff alleged that he has been disabled since June 15, 1995

due to “learning disability with other mental problems.” (Id.

at 130, 134).

Plaintiff’s applications were denied and upon timely 

request, he was granted an administrative hearing before 

Administrative Law Judge Marni McCaghren (hereinafter “ALJ”) on 

August 30, 2012. (Id. at 33). Plaintiff attended the hearing 

with his counsel and provided testimony related to his claims. 

(Id. at 36). A vocational expert (“VE”) also appeared at the 

hearing and provided testimony. (Id. at 50). On November 28, 

2012, the ALJ issued an unfavorable decision finding that 

Plaintiff is not disabled. (Id. at 29). The Appeals Council 

denied Plaintiff’s request for review on May 30, 2014. (Id. at 

1). Thus, the ALJ’s decision dated November 28, 2012, became 

the final decision of the Commissioner. 

Having exhausted his administrative remedies, Plaintiff 

 1 Any appeal taken from this decision shall be made to the 

Eleventh Circuit Court of Appeals. (See Doc. 19)(“An appeal 

from a judgment entered by a magistrate judge shall be taken 

directly to the United States court of appeals for this judicial 

circuit in the same manner as an appeal from any other judgment 

of this district court.”).

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 2 of 27
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timely filed the present civil action. (Doc. 1). Oral argument

was conducted on June 2, 2015, and 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 failing to find

that Plaintiff met Listing 12.05C?

B. Whether the ALJ erred in assigning more 

weight to the opinions of Dr. Joanna 

Koulianos, Ph.D., a State Agency 

reviewing psychologist, than the 

opinions of consultative, examining 

psychologist, Dr. Kenneth R. Starkey, 

Psy.D.?

III. Factual Background

Plaintiff was born on May 14, 1992, and was twenty years of 

age at the time of his administrative hearing on August 30, 

2012. (Tr. 36). The record reflects that Plaintiff received 

social security disability benefits as a child based on 

attention deficit hyperactivity disorder (“ADHD”) and that his 

benefits were discontinued in October 2010. (Id. at 38, 240). 

As noted, supra, in his instant application, Plaintiff seeks 

benefits based on “learning disability and other mental 

problems.” (Id. at 130, 134).

Plaintiff was enrolled in special education classes while 

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in school, and he repeated the first and ninth grades. 2

Plaintiff reported that he completed the eleventh grade in high 

school, that his last report card had all “E’s” and that he has 

not obtained a GED.3 (Id. at 37, 240). Plaintiff testified that 

he has trouble with math and reading, but he is able to read a 

grocery list, and he can make change if it is not a large sum of 

money. (Id.). 

Plaintiff also testified that he lives with his uncle and 

accompanies his uncle to the grocery store and lifts things for 

him. (Id. at 36, 46). According to Plaintiff, he lived with 

his mother prior to her death and during that time, he cleaned 

the house for her and reminded her to take her medication. (Id.

at 46, 48-49). Plaintiff testified that he can prepare simple 

meals for himself, but he has never lived alone, had a bank 

account, learned to drive, or taken public transportation.4 (Id.

at 44, 46-47, 50). Plaintiff stated that he enjoys fishing, 

going to the gym, playing basketball, playing basketball and 

football video games on the Play Station, watching football and 

 2 The record reflects that Plaintiff was dropped from the special 

education program after middle school due to failure to sign 

appropriate paperwork and failure to attend meetings. (Tr. 240).

3 Plaintiff testified that he left school in the eleventh grade 

because he kept “getting in trouble” and that he plans to obtain 

his GED, although he is not enrolled in any classes. (Tr. at 

37-38). He has not had any other schooling. (Id. at 38).

4 Plaintiff testified that he never learned to drive because he 

does not have a vehicle. (Tr. 46-47). 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 4 of 27
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basketball on television, and visiting with friends daily. (Id.

at 42, 45, 263, 299). According to Plaintiff, he understands

the steps necessary to play the video games, and the scoring 

utilized in basketball and football, but he does not understand 

the rules with respect to penalties. (Id. at 42-43). 

Plaintiff testified that he has never worked because his 

back aches and his wrist hurts, 5 and he is learning disabled. 

(Id. at 38-40). He also testified that he has never received 

vocational rehabilitation because he does not have 

transportation to get there. (Id. at 47). 

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 

 5 Plaintiff’s attorney acknowledged that there was no evidence in 

the record of any medically determinable impairment related to 

Plaintiff’s back or wrist. (Tr. 39-40). Plaintiff testified 

that he has seen doctors in the past, but he stopped going to 

doctors because his Medicaid was discontinued in 2010 and 

because he did not have a ride. (Id. at 43-44). He testified 

that he is not on any medication for any condition. (Id. at 

48). In his Disability Report dated July 22, 2011, Plaintiff 

listed no current medications and stated that he does not intend 

to see a doctor in the future for any physical or mental 

problem. (Id. at 150).

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legal standards were applied. 6 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). 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, *4

(S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as the “inability to 

engage in any substantial gainful activity by reason of any 

 6 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).

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 6 of 27
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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 12

months.” 42 U.S.C. §§ 423(d)(1)(A); see also 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 his disability.7 20 C.F.R. 

§§ 404.1520, 416.920. 

In the case sub judice, the ALJ determined that Plaintiff 

 7 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; and (4) the claimant’s age, 

education and work history. Id. 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, 836 (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)).

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 7 of 27
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has not engaged in substantial gainful activity since April 5, 

2011, the application date, and that he has the severe 

impairments of adjustment disorder with mixed emotion, 

oppositional defiant disorder, disruptive behavior disorder, 

conduct disorder, attention deficit hyperactivity disorder, 

personality disorder, learning disorder (borderline intellectual 

functioning), and eustachian tube dysfunction. (Tr. 22). The 

ALJ further found that Plaintiff does not have an impairment or 

combination of impairments that meets or medically equals any of

the listed impairments contained in 20 C.F.R. Part 404, Subpart 

P, Appendix 1. (Id. at 23).

The ALJ concluded that Plaintiff retains the residual 

functional capacity (hereinafter “RFC”) to perform a range of 

medium work, except that “due to a history of dizziness, he 

should not climb ladders, ropes and scaffolds, work at 

unprotected heights, operate machinery, or drive automotive 

equipment. Due to learning difficulties, he is limited to 

simple, routine tasks, one-two step instructions, occasional and 

casual contact with the public, and only occasional changes in 

the work setting. He should not be required to read unfamiliar 

texts as a job requirement, but could complete familiar 

checklists. Due to some issues with learning disabilities, he 

should not have to handle money. Because of some anger 

personality issues, he should not be involved in the care of 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 8 of 27
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others such as patients, the elderly, and pets. Due to pain and 

psychological factors, he could be expected to have some deficit 

in concentration, persistence or pace, which would cause him to 

be off task for a nonproductive pace for up to 5% of the 

workday. The claimant could be around coworkers, but should not 

have to coordinate with them to complete tasks.” (Id. at 25). 

The ALJ also determined that while Plaintiff’s medically 

determinable impairments could reasonably be expected to produce 

the alleged symptoms, his statements concerning the intensity, 

persistence and limiting effects of the alleged symptoms were 

not credible to the extent they are inconsistent with the RFC 

assessment. (Id. at 26).

Utilizing the testimony of a VE, the ALJ concluded that 

considering Plaintiff’s residual functional capacity for a range 

of medium work, as well as his age, education and work 

experience, there are jobs existing in the national economy that 

Plaintiff is able to perform, such as “stacker,” “scullion,” and 

“crab butcher,” all of which are classified as medium and 

unskilled. (Id. at 28). Thus, the ALJ concluded that Plaintiff 

is not disabled. (Id.). 

In determining whether Plaintiff’s impairments were severe, 

the ALJ made the following relevant findings:

The medical record establishes a history of 

psychological impairments manifested by an

adjustment disorder with mixed emotion, 

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oppositional deficient (sic) disorder, 

disruptive behavior disorder, conduct 

disorder, attention deficit hyperactivity 

disorder, personality disorder, and learning 

disorder. (Exhibits 1F, 2F, 3F, 5F, 6F, 8F, 

& 13F) Reported symptoms included 

inattentiveness, difficulty following 

instructions, hyperactivity, trouble 

concentrating, inability to sit still, 

inappropriate and aggressive behavior, 

trouble getting along with others, poor 

sleep, defiance of authority figures, and 

poor academic performance. (Exhibits 1F, 

2F, 3F, 5F, 8F & 13F)

Evaluations also suggest mild mental 

retardation. As determined by most recent 

testing results in a consultative report 

dated June 2, 2011, the claimant achieved a 

Full Scale IQ score 66, a Verbal 

Comprehension Index of 72, Perceptual 

Reasoning Index of 71, Working Memory Index 

of 71, and Processing Speed Index of 71. 

(Exhibit 8F) Taken jointly, these scores 

place Mr. Williams at the 1st, 3rd, 3rd, 3rd 

and 3rd percentiles respectively, and in the 

Extremely Low (Mild Mental Retardation) 

range of functioning. (Exhibit 8F, p. 5)

The claimant suffers from eustachian tube 

dysfunction, where he had been hit the past 

on the left side of head by brass knuckles. 

(Exhibit 6F) Although he suffers from no 

hearing deficits, he noted dizziness 

attributable to this remote injury.

(Tr. 22). 

In determining that Plaintiff did not meet any Listing, the 

ALJ also made the following relevant findings: 

The record reflects no gross and/or marked 

physical deficits. In fact, at the time 

when the claimant presented to the emergency 

room on July 11, 2010 with complaints of 

atypical chest pain with no cardiac cause, 

he had normal range of motion of the 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 10 of 27
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extremities, no lower extremity edema, and 

no motor deficits. (Exhibit 4F)

Additionally, in a consultative report dated 

June 2, 20ll and with the exception of 

problems with anger, aggressive behavior 

and lifelong history of learning problems, 

“He denied having symptoms of any other 

medical or psychiatric condition that might 

interfere with his ability to work.” 

(Exhibit 8F, p. 3)

Mental health treating reports denote 

response to medication and therapy as well 

such that on January 9, 2010, “pt is doing 

wonderful at home and school; got good 

behavior award.” (Exhibits IF, p. 1)

On examination [at Alta Pointe Health 

Center] as of May 24, 2010, the claimant 

presented a silly affect, poor sleep and 

reports of past suicidal ideation. (Exhibit 

2F & 13F) However, he also demonstrated 

appropriate grooming, normal and cooperative 

behavior, normal mood, no impairment of 

speech, no current suicidal or homicidal 

ideation, normal perceptions, unimpaired 

memory, logical, coherent and normal 

thoughts, no impairment of concentration, 

good insight, fair judgment, and no anxiety. 

(Exhibits 2F & 13F)

Thereafter, the claimant failed to attend a 

scheduled appointment on June 7, 2010, and

correspondence was forwarded to his guardian 

(grandmother) advising them of the need to 

attend therapy sessions no less than once a 

month. (Exhibits 2F & 13F) Subsequently 

reports show that he rescheduled his session 

that was to take place on June 29, 2010, 

rescheduled his session that was to take 

place on July 13, 2010, failed to show up at 

his session on July 28, 2010, and failed to 

show up at his session on September 1, 2010.

(Exhibit 13F) Thus, on December 1, 2010, 

the claimant was discharged from care 

considering “Consumer only attended an 

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intake session at this facility and failed 

to present for additional assessment 

appointments.” (Exhibit 13F, p. 8)

Therefore, the severity of the claimant’s 

mental impairments, considered singly and in

combination, do not meet or medically equal 

the criteria of listings 12.02, 12.04 and 

12.06 (emphasis added) ... 

(Id. at 22-23).

In assessing Plaintiff’s RFC, the ALJ made the following 

relevant findings with respect to Plaintiff’s impairments:

4. After careful consideration of the entire 

record and giving the claimant the benefit 

of considerable doubt, the undersigned finds 

that the claimant has the residual 

functional capacity to perform medium work 

as defined in 20 CFR 416.967(c) except that 

due to a history of dizziness, he should not 

climb ladders, ropes and scaffolds, work at 

unprotected heights, operate machinery, or 

drive automotive equipment. Due to learning 

difficulties, he is limited to simple, 

routine tasks, one-two step instructions, 

occasional and casual contact with the 

public, and only occasional changes in the 

work setting. He should not be required to 

read unfamiliar texts as a job requirement, 

but could complete familiar checklists. Due 

to some issues with learning disabilities, 

he should not have to handle money. Because 

of some anger personality issues, he should 

not be involved with the care of others such 

as patients, the elderly and pets. Due to 

pain and psychological factors, he could be 

expected to have some deficit in 

concentration, persistence or pace, which 

would cause him to be off task for a 

nonproductive pace for up to 5% of the 

workday. The claimant could be around 

coworkers, but should not have to coordinate 

with them to complete tasks.

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. . . 

At the hearing, the claimant testified he is 

20 years old and he stopped attending school 

in 11th grade because he kept getting into 

the trouble. He reportedly is going to 

enroll in classes to get his GED. He noted 

having learning difficulties causing trouble 

with reading and math. He also has [a] 

problem counting change involving “big 

money.” He admitted to not following 

recommended treatment because he had no 

transportation to get his prescriptions and 

attend therapy. He also acknowledged he did 

not try to take the bus and stated that 

people at the mental health facility did not 

tell him they had any kind of 

transportation. He also has never tried to 

learn how to drive or obtain a driver’s 

license, as well as never had vocational 

rehabilitation because of lack of

transportation. He reportedly spends most 

of his time in his room, but does get 

together with friends and plays video games 

with them pretty much every day and for a 

couple of hours and helps his uncle at the 

grocery store. 

After careful consideration of the evidence, 

the undersigned finds that the claimant’s 

medically determinable impairments could 

reasonably be expected to cause the alleged 

symptoms; however, the claimant’s statements 

concerning the intensity, persistence and

limiting effects of these symptoms are not 

credible to the extent they are inconsistent 

with the above residual functional capacity 

assessment.

While the claimant certainly has significant 

psychological impairments and difficulties, 

compliance with recommended treatment has 

been less than optimal. Not only did he 

fail to follow up with therapy as directed,

but he has demonstrated questionable effort 

towards improvement. Notably, in a 

consultative report dated July 1, 2010, Dr. 

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Jennifer L. Adams, Ph.D., did not consider 

the claimant and his grandmother reliable 

informants and noted the possibility of 

discontinued receipt of Special Education 

Services due “failure to sign appropriate 

paperwork or attend meetings seems to be 

lead to a termination in these services.” 

(sic) (Exhibit 3F, p.3) Additionally, he 

“seems to put very little effort into doing 

things. He has been inconsistent with 

mental health services as well.” (Exhibit 

3F, p. 3)

Dr. Adams also questioned test results in 

light of the possibility of malingering and 

he “often showed poor effort and a tendency 

to give up easily.” (Exhibit 3F, p. 5) 

Comparatively, referenced test results 

obtained when the claimant was in 4th Grade 

showed a non-verbal quotient of 74, much 

higher than the attained Full IQ Score at 

this time of 49. (Exhibit 3F)

Nevertheless, Dr. Adams concluded the 

claimant had the ability to perform the 

demands of simple, unskilled work to the 

extent that “David has the ability to 

understand, carry out and remember 

instructions, although one-step directions 

would work best for David. He may struggle 

with responding to supervision due to the 

ODD, but he should be able to work with coworkers and handle work pressures.” (Exhibit 

3F, p. 5)

In a consultative report dated August 30, 

2010, “He reports that the medications help 

him do better in school and sleep better.”

(Exhibit 5F, p. 3) Yet, “He did not take his 

medication today.” (Exhibit 5F, p. 3) At 

this time, the consultative examiner, Dr. 

John W. Davis, Ph.D., equally questioned 

test results and “it is felt that these 

results are an underestimation of the 

claimant’s ability for unknown reasons. 

Claimant did not seem to put forth his best 

efforts and there are strong efforts of 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 14 of 27
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malingering seen.” (Exhibit 5F, p.) 

However, the claimant did demonstrate the 

ability to make simple change, do simple 

arithmetic, handle Serial 3’s without 

difficulty, count backwards from 20 to 1 

without difficulty, spell “world” backwards, 

handle four digits forward and three digits 

backwards, recall three of three objects in 

one minute and three objects in five 

minutes, and describe the details of the 

trip to this office without difficulty. 

(Exhibit 5F)

Again, at the time of his most recent 

consultative evaluation with Dr. Kenneth R. 

Starkey, Psy.D., on June 2, 2011, the 

claimant noted he was not presently taking 

prescribed medication and had not taken his 

medication for attention deficit 

hyperactivity disorder since 2009, as well 

as he had not attended outpatient counseling 

for any or any other concern since 2009. 

(Exhibit 5F) Therefore, minimal weight is 

given to Dr. Starkey’s assessment of 

marginal to poor work-related limitations 

given the claimant at this time had no 

mental health treatment, which in the past 

had been very beneficial.

The claimant recently resumed mental health 

treatment on May 10, 2012, but again failed 

to attend the scheduled session on May 18, 

2012 and failed to respond to the 

therapist’s letter and message on May 24, 

2012. Consequently, on June 7, 2012, the 

claimant’s chart was recommended to be 

closed due to “Consumer has failed to stay 

in contact with this facility.” (Exhibit 

13F, p. 1)

The severity of Dr. Starkey[’s] assessed 

mental limitations also appears to be much 

too restrictive in light of claimant’s 

demonstrated adaptive functioning. Not only 

does he continue to have the ability to meet 

his own personal needs independently, he is 

able to perform activities illustrative of 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 15 of 27
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the ability to perform the demands of 

simple, unskilled work. In this regards, 

Dr. Adams specifically commented, “David’s 

activities are pretty consistent with his 

probabl[e] IQ level. He reports that he 

hangs out with friends, plays video games, 

and tends to his room clean.” (sic) 

(Exhibit 3F, p. 4) The claimant equally 

testified he plays basketball and football 

and video games on play station and is able 

to understand the steps to play these games. 

He watches his football team (Vikings) and 

basketball games on television and 

understands how points are scored, but not 

penalties. He can read a grocery list and 

write. He acknowledged plans to enroll in 

classes to get his GED as well.

Thus, based on the conflicting and 

questionable testing results and his 

adaptive functioning, the undersigned finds 

the claimant’s intellectual functioning is 

best reflected by a diagnosis of borderline 

intellectual functioning, as opposed to mild 

mental retardation.

As for the opinion evidence, there are no 

medical source statements specifically 

delineating the claimant as disabled.

Moreover, the undersigned has considered and 

gives significant deference to the 

psychological assessments of the State 

agency medical consultants [Dr. Joanna 

Koulianos, Ph.D.] at Exhibits 9F, 10F and 

11F. In general, these assessments 

determined the claimant had severe mental 

impairments causing mild restriction of 

activities of daily living, moderate 

difficulties in maintaining social 

functioning, moderate difficulties in 

maintaining concentration, persistence or 

pace, and no episodes of decompensation. 

Otherwise, the claimant should be able to 

remember, understand and carry out short, 

simple, one and two step instructions; 

attend and concentrate for reasonable 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 16 of 27
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increments of time; engage in limited and 

casual contact with the general public; 

respond to criticism from supervisors that 

are presented objectively, with support and 

in a simple manner; respond to limited and 

gradually introduced changes in routine work 

duties; and he should not be expected to 

make long term goals or plans independently.

It is also noted that the claimant had 

received benefits in the past as a child 

from August 2000 to October 2010. However, 

the level of severity to warrant disability 

as an adult is not evidence in this record. 

The evidence does not show the claimant is 

unable to work.

In sum, the above residual functional 

capacity assessment is supported by [the] 

record as a whole with significant weight 

accorded the psychological assessments of 

the State agency medical consultants.

(Id. at 25-28) (emphasis added). The Court now considers the 

foregoing in light of the record in this case and the issue on 

appeal. 

1. Issues

A. Whether the ALJ erred in failing to 

find that Plaintiff met Listing 12.05C? 

In this case, Plaintiff claims that the ALJ erred in 

failing to discuss Listing 12.05C and in failing to find that he 

meets the criteria for mild mental retardation. Plaintiff 

argues that he has satisfied the criteria of Listing 12.05C 

because he has a valid Full Scale IQ score of 66 and other 

mental impairments that impose additional and significant workrelated limitations of function, i.e., adjustment disorder with 

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 17 of 27
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mixed emotion, oppositional defiance disorder, disruptive 

behavior disorder, and personality disorder. (Doc. 15 at 3-4). 

The Commissioner counters that, “[b]y declining to find 

mild mental retardation a severe impairment and choosing instead 

to adopt the diagnosis of borderline intellectual functioning 

found elsewhere in the record, the ALJ signaled his rejection of 

Plaintiff’s IQ scores.” (Doc. 16 at 4). The Commissioner also 

asserts that although “the ALJ did not explicitly discuss the 

criteria of 12.05C”, any error is harmless because it is 

Plaintiff’s burden to produce evidence showing that he meets a 

Listing, and the ALJ’s decision is supported by substantial 

evidence. (Id. at 4-6). Having reviewed the record at length, 

the Court finds that 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. 

As stated above, the Social Security regulations set forth 

a five-step sequential evaluation process to determine whether a 

claimant is disabled. At step three, the claimant has the burden 

of proving that an impairment meets or equals a listed 

impairment. See Harris v. Commissioner of Soc. Sec., 330 Fed. 

Appx. 813, 815 (11th Cir. 2009) (unpublished)8 (citing Barron v. 

Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)). Section 12.00 

 8 “Unpublished opinions are not considered binding precedent, but 

they may be cited as persuasive authority.” 11TH CIR. R. 36-2.

Case 1:14-cv-00351-B Document 22 Filed 06/16/15 Page 18 of 27
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contains the Listings for mental disorders, which are arranged 

in nine diagnostic categories: “[o]rganic mental disorders 

(12.02); schizophrenic, paranoid and other psychotic disorders 

(12.03); affective disorders (12.04); intellectual disability 

(12.05); anxiety-related disorders (12.06); somatoform disorders 

(12.07); personality disorders (12.08); substance addiction 

disorders (12.09); and autistic disorder and other pervasive 

developmental disorders (12.10).” 20 C.F.R. Pt. 404, Subpt. P, 

App. 1, § 12.00(A). In his decision, the ALJ states that “the 

severity of the claimant’s mental impairments, considered singly 

and in combination, do not meet or medically equal the criteria 

of listings 12.03, 12.04 and 12.06”. (Tr. 23). The ALJ then 

goes on to discuss the “paragraph B” and “paragraph C” criteria, 

in relation to the three above-referenced listings; however, the 

ALJ’s decision does not reference, let alone discuss, Listing 

12.05C, which is the listing at issue in this case.

To establish disability under section 12.05C, a claimant 

must present evidence of “[a] valid verbal, performance or full 

scale IQ of 60-70 and a physical or other mental impairment 

imposing an additional and significant work-related limitation 

of function.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 

12.05C. In addition, the claimant must satisfy the ‘diagnostic 

description’ of mental retardation in Listing 12.05 (the listing 

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category for mental retardation/intellectual disability),9 which 

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.” 20 C.F.R. Part 

404, Subpart P, Appendix 1, §§ 12.05. 

The law in this Circuit provides that a valid IQ score of 

60-70 after age 22 creates a rebuttable presumption that the 

claimant manifested deficits in adaptive functioning prior to 

the age of twenty-two. See Hodges v. Barnhart, 276 F. 3d 1265, 

1268-69 (llth Cir. 2001). Thus, “a claimant meets the criteria 

for presumptive disability under section 12.05C when the

claimant presents a valid I.Q. score of 60 to 70 inclusive, and 

evidence of an additional mental or physical impairment that has 

more than a ‘minimal effect’ on the claimant’s ability to 

 9 On August 1, 2013, the Social Security Administration amended 

Listing 12.05 by replacing the words “mental retardation” with 

“intellectual disability.” See Hickel v. Commissioner of Soc. 

Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78 

Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404, 

subpt. P, app. 1)). “This change was made because the term 

‘mental retardation’ has negative connotations, and has become 

offensive to many people. Id. (citations and internal 

quotation marks omitted). “The Social Security Administration 

stated that the change does not affect the actual medical 

definition of the disorder or available programs or services.” 

Id. (citations and internal quotation marks omitted). As in 

Hickel, this opinion uses the term “mental retardation” and 

“intellectual disability” interchangeably. 

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perform basic work activities.” Smith v. Commissioner of Soc. 

Sec., 535 Fed. Appx. 894, 897 (llth Cir. 2013)(quoting Lowery v. 

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

The presumption under 12.05C can be rebutted, however, when 

the IQ score is inconsistent with record evidence of a 

claimant’s daily activities and behavior. See Popp v. Heckler, 

779 F.2d 1497, 1499-1500 (llth Cir. 1986). Accordingly, the ALJ 

is tasked with determining whether there is sufficient evidence 

(relating to plaintiff’s daily life) to rebut the presumption. 

See Grant v. Astrue, 255 Fed. Appx. 374, 375 (llth Cir. 2007); 

Hartman v. Colvin, 2014 U.S. Dist. LEXIS 91467, *7, 2014 U.S. 

Dist. LEXIS 91467, *3 (S.D. Ala. July 7, 2014). 

The record reflects that since age eighteen, Plaintiff has 

been administered IQ tests on three (3) separate occasions. In 

July 2010, Plaintiff was administered the WAIS-IV by Dr. 

Jennifer Adams, Ph.D. (Tr. 240-243). Plaintiff received a full 

scale score of 59. Dr. Adams noted that testing results from 

the Test of Malingering was indicative of malingering and opined 

that Plaintiff’s actual IQ is most likely in the borderline 

range. She also opined that Plaintiff could understand and 

carry out one step directions, that he may struggle responding 

to supervision appropriately, that he could work with co-workers 

and handle work pressure, and that he may need assistance 

managing any financial benefits that he received. (Id. at 243). 

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Plaintiff was next administered the WAIS-IV by Dr. John Davis in 

August 2010. (Id. at 260-264). Plaintiff received a full scale 

IQ score of 57. Dr. Davis opined that the score was invalid, 

that Plaintiff had not put forth his best effort, that there 

were strong signs of malingering, and that Plaintiff could not 

manage any benefits that were forthcoming. (Id.) Nearly a year 

later, Plaintiff was administered the WAIS-IV by Dr. Kenneth 

Starkey, Psy.D., in June 2011. (Id. at 298). Plaintiff 

received a full scale IQ score of 66, placing him “in the 

Extremely Low (Mild Mental Retardation) range of functioning.”10 

(Id. at 298-99). Dr. Starkey opined that the IQ scores appeared 

to be “an accurate estimate of [Plaintiff’s] current 

intellectual abilities”, that “[f]uture testing could be 

expected to yield a [f]ull [s]cale I.Q. score falling within in 

a range of 63 to 70. . .,” and that Plaintiff “was adequately 

motivated for the evaluation.” (Id. at 299-300). He also 

opined that Plaintiff’s ability to understand, remember and 

carry out simple instructions appeared “marginal,” while his 

ability to work independently, with others, and with work

pressures appeared “marginal” to “poor.” (Id.)

A careful review of the ALJ’s decision reflects that in 

 10 Plaintiff also received a Verbal Comprehension score of 72, 

Perceptual Reasoning score of 71, Working Memory score of 71, 

and Processing Speed score of 71. (Tr. 299). 

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discussing whether Plaintiff’s impairments would be expected to 

reasonably cause the alleged symptoms, the ALJ rejected Dr. 

Starkey’s diagnosis of mild mental retardation. (Id. at 27) 

However, the ALJ did not invalidate Plaintiff’s most recent 2011 

full IQ score of 66. Instead, the ALJ simply concluded, without 

considering 12.05C, that Plaintiff’s adaptive functioning skills 

were not indicative of mental retardation. Specifically, the 

ALJ stated that “based on the conflicting and questionable 

testing results and [Plaintiff’s] adaptive functioning, the 

undersigned finds that the claimant’s intellectual functioning 

is best reflected by a diagnosis of borderline intellectual

functioning, as opposed to mild mental retardation.” (Id. at

27). Given Plaintiff’s full IQ score of 66, and the ALJ’s 

finding that Plaintiff has several severe mental impairments 

including adjustment disorder, attention deficit hyperactivity 

disorder and personality disorder, the ALJ was required to 

consider 12.05C in analyzing Plaintiff’s claim. Hartman v. 

Colvin, 2014 U.S. Dist. LEXIS 91467, 2014 WL 3058550, *5 (S.D. 

Ala. July 7, 2014)(“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 U.S. Dist. LEXIS 59667, 

2014 WL 1744759, *5 (S.D. Ala. Apr. 30, 2014) (finding that the 

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ALJ’s failure to address 12.05(C) and apply the rebuttable 

presumption constituted error requiring remand where the 

Plaintiff had a valid score between 60 and 70, and the ALJ found 

that the Plaintiff had other severe impairments).

The undersigned recognizes that in addressing the “adaptive 

functioning” aspect of Listing 12.05C, the Eleventh Circuit has 

sustained the rejection of claims under this Listing where the 

claimant’s IQ score was significantly inconsistent with his/her 

adaptive functioning. For instance, in Perkins v. Commissioner, 

Soc. Sec. Admin., 553 Fed. Appx. 870 (llth Cir. 2014), the 

Eleventh Circuit upheld the ALJ’s finding that Listing 12.05C

was not met where the plaintiff performed skilled jobs, 

including as a skilled cook, managed other workers and made 

contradictory claims regarding his education and employment 

history. Also, in Hickel v. Commissioner, 539 Fed. Appx. 980 

(llth Cir. 2013), the Eleventh Circuit held that the ALJ did not 

err where he acknowledged that the claimant had a valid IQ score 

between 60 and 70, applied the presumption established by 

Hodges, and found that the presumption was rebutted by other 

evidence that showed that the claimant did not have “deficits in 

adaptive functioning.” Id. at 984. In reaching its decision, 

the court noted that although the claimant had been enrolled in 

special education classes, she worked part-time in a nursery, 

was a high school graduate; prepared simple meals, dressed 

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herself, drove herself to work, attended church regularly, and 

socialized with friends. Id. at 984-985. See also Popp, 779 

F.2d at 1499 (affirming finding that Listing 12.05C was not met

where the plaintiff had worked skilled jobs, obtained a college 

degree, and had exaggerated his deficits when examined); White 

v. Colvin, 2015 U.S. Dist. LEXIS 28277, 2015 WL 1013117, *4 

(S.D. Ala. Mar. 9, 2015) (The ALJ properly found that the 

plaintiff did not have significant limitations in adaptive 

functions where the record reflected that although the plaintiff 

had been in special classes, he lived alone, maintained his 

financial affairs, and consistently worked at several different 

jobs); Robinson v. Colvin, 2015 U.S. Dist. LEXIS 43338, 2015 WL 

1520431, *11 (S.D. Ala. Apr. 2, 2015) (where the plaintiff lived 

independently without a highly supportive living arrangement, 

cared for her personal needs, and had a significant work 

history, the ALJ properly found that her IQ score was 

inconsistent with the record evidence regarding her daily 

activities); Johnson v. Colvin, 2014 U.S. Dist. LEXIS 13497, 

2014 WL 413492, *4 (S.D. Ala. Feb. 3, 2014) (although the ALJ 

never stated that the claimant failed to meet Listing 12.05C, 

the ALJ’s finding that the claimant had high adaptive skills, in 

that he had the capacity to take care of his own needs, perform 

activities of daily living, and had successfully performed four 

different jobs since leaving high school, was sufficient to 

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support his decision that the claimant was not mentally 

retarded); Lyons v. Astrue, 2009 U.S. Dist. LEXIS 128950 (M.D. 

Fla. May 24, 2009), adopted by 2009 WL 1657388, *11 (M.D. Fla. 

June 10, 2009) (The ALJ’s finding that the claimant did not meet 

Listing 12.05C was supported by substantial evidence that 

demonstrated that the claimant had a high school diploma, was 

not in special education classes, completed his own social 

security forms, and had earnings from 1983–1990 between $13,696 

and $18,408 per year).

In this case, the evidence reflects that Plaintiff resides 

with his uncle, plays sports and video games, works out at the 

gym, cares for his personal needs, prepares light meals and can 

assist with some household chores. The evidence also reflects 

that Plaintiff was enrolled in special education classes, that 

he repeated the first and ninth grades, that he had all “E’s” on 

his last report card, and that he left school after the eleventh 

grade. Additionally, Plaintiff does not have a driver’s 

license, has never taken public transportation, and has never 

held a job. Plaintiff has difficulty reading and is able to 

make small change; but, the consultative doctors opined that he 

is not capable of managing his finances. After a thorough

review of the record, examination of the analysis employed in 

similar cases, and consideration of the various factors 

underlying the ALJ’s decision in this case, the undersigned 

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finds that it is far from clear that the presumption of deficits 

in adaptive functioning, to which Plaintiff is entitled, has 

been rebutted. 11 Accordingly, the ALJ’s decision is due to be 

reversed and remanded to the Commissioner.

V. Conclusion

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby ORDERED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for 

supplemental security income be reversed and remanded due to the 

ALJ’s failure to consider Listing 12.05C and apply the correct 

legal framework. 

DONE this 16th day of June, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

 11 The undersigned also rejects the Government’s assertion that 

any error was harmless. As noted above, it is not clear from 

the evidence before the Court that the presumption afforded by 

Listing 12.05C has been rebutted. Moreover, it is unrefuted 

that Plaintiff meets the second prong of Listing 12.05C given 

that the ALJ determined that Plaintiff has several severe mental 

impairments such as adjustment disorder, oppositional defiant 

disorder, attention deficit hyperactivity disorder and 

personality disorder. (Tr. 22).

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