IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

BETTY BOULER, :

Plaintiff, :

vs. : CA 14-0146-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §1383(c)(3), seeking judicial 

review of a final decision of the Commissioner of Social Security denying her claim for 

supplemental security income benefits. The parties have consented to the exercise of 

jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings 

in this Court. (Docs. 18 & 20 (“In accordance with the provisions of 28 U.S.C. 636(c) and 

Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge 

conduct any and all proceedings in this case, . . . order the entry of a final judgment, and 

conduct all post-judgment proceedings.”).) Upon consideration of the administrative 

record, plaintiff’s brief, the Commissioner’s brief, and the arguments of counsel at the 

February 20, 2015 hearing before the Court, it is determined that the Commissioner’s 

decision denying benefits should be affirmed.

1

 1 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Docs. 18 & 20 (“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.”))

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Plaintiff alleges disability due to mild mental retardation, degenerative disc 

disease of the low back, obesity, and problems with her hands and feet. The 

Administrative Law Judge (ALJ) made the following relevant findings:

1. The claimant has not engaged in substantial gainful activity since 

March 22, 2011, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: degenerative 

disk disease with low back pain, problems with her feet and hands, 

obesity and mild mental retardation. She also has depression that I find 

is non-severe (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the 

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 

416.920(d), 416.925 and 416.926).

Under the third step, a determination must be made as to whether or not 

the impairment or impairments are of listing severity. The Medical 

Listings (20 C.F.R. Part 404, Appendix 1, Subpart P) outline the findings 

which must be present under each of the body systems for an impairment 

to be found disabling. No medical expert has concluded that the 

claimant’s impairments meet or equal a listed impairment.

. . .

The severity of the claimant’s mental impairment does not meet or 

medically equal the criteria of listing . . . 12.05 for mental retardation.

. . .

Medical Listing 12.00A provides in pertinent part that the structure of the 

listing for mental retardation (12.05) is different from that of the other 

mental disorders listings. Listing 12.05 contains an introductory 

paragraph with the diagnostic description for mental retardation. It also 

contains four sets of criteria (paragraphs A through D). If your 

impairment satisfies the diagnostic description in the introductory 

paragraph and any one of the four sets of criteria, we will find that your 

impairment meets the listing. Paragraphs A and B contain criteria that 

describe disorders we consider severe enough to prevent your doing any 

gainful activity without any additional assessment of functional 

limitations. For paragraph C, we will assess the degree of functional 

limitation the additional impairment(s) imposes to determine if it 

significantly limits your physical or mental ability to do basic work 

activities, i.e., is a “severe” impairment(s), as defined in §§ 404.1520(c) and 

416.920(c). If the additional impairment(s) does not cause limitations that 

are “severe” as defined in §§ 404.1520(c) and 416.920(c), we will not find 

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that the additional impairment(s) imposes “an additional and significant 

work-related limitation of function,” even if you are unable to do your 

past work because of the unique features of that work. Paragraph D 

contains the same functional criteria that are required under paragraph B 

of the other mental disorders listings.

4. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform

light work as defined in 20 CFR 416.967(b). The claimant is able to toe 

walk but not able to heel walk. She ambulates without any difficulty. 

She is able to bend and touch her toes. She is able to squat and stand 

without difficulty. The claimant had the ability to understand, 

remember and carry out very short and simple instructions and could 

attend for two hour[] intervals. Contact with the general public should 

be infrequent and casual and not a usual part of the job. Changes to the 

work setting should be minimal and well structured. The claimant 

might need assistance with plans and goals that go beyond the simple 

and repetitive ones[.]

. . .

At the hearing, the claimant testified she was unable to work due to both 

mental and physical limitations. She contends she was in special 

education classes in school and repeated tenth grade. She has a driver’s 

license but had to take the test five times and was given the oral 

examination. She has a checking account and is able to add and subtract.

. . .

School records were submitted indicating that the claimant was in special 

education classes for grades 10 and 11 for English and reading. In the first 

semester of the eleventh grade, her grades were English/reading—B; 

American History—B; Typing—D and math—B.

. . .

Ms. Bouler completed a Function Report—Adult in April 2011. On this 

form, she indicated she would spend her day bathing, making her bed, 

washing clothes, cooking, eating, watching television, cleaning and 

walking around outside in the yard. She stated she takes care of two 

other[] persons with washing and cooking but has no pets. She noted no 

problems with personal care and stated she needed no reminders for 

personal needs or grooming but needed to be reminded to take her 

medicine. She stated she prepares complete meals daily that take two 

hours. She listed house work and yard work that she does as cleaning, 

laundry and cooking but no yard work. She stated she cleans three times 

[a] week and does laundry one time a week. She needs encouragement to 

do these things when she is bending low and cleaning. She is able to go 

outside three times a week. She is able to drive and she is able to go out 

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alone. She is able to shop for food, household goods and school clothes. 

She is able to shop about once a month for three hours. Ms. Bouler 

admitted that she was able to pay bills, count change and handle a savings 

account but did not have a checkbook. She listed her hobbies as watching 

television and does this daily. She stated she does not spend time with 

others and goes to the store on a regular basis. She does not need to be 

reminded to go [] places but sometimes needs to be accompanied. She has 

problems getting along with family and friends and snaps a lot. She 

identified problems as lifting, squatting, bending, standing, walking, 

kneeling, stair climbing, memory, completing tasks, concentration[,] 

understanding, following instructions, using hands and getting along 

with others. . . . She has trouble concentrating and is depressed all the 

time. . . . She is not able to pay attention very long and does not always 

finish what she starts. She does not follow written or spoken instructions 

very well. She gets along with authority figures pretty well and has never 

been fired from a job because of problems getting along. She does not 

handle stress or changes in a routine very well. 

. . .

On May 31, 2011, the claimant underwent a comprehensive mental status 

evaluation conducted by Dr. Nina Tocci, licensed psychologist, at the 

request of the Agency. The diagnostic impressions were malingering and 

she was assigned a Global Assessment of Functioning of 65 indicating 

only mild symptoms. Dr. Tocci administered the WAIS-IV intelligence test 

and the claimant obtained a full-scale IQ score of 50. The examiner opined 

the results of the administration of the WAIS-IV were considered invalid 

because of poor effort evinced by the claimant. Throughout the test, Ms. 

Bouler argued with modeled responses and forgot directions. Dr. Tocci 

summarized that the claimant[] did not appear to offer her best effort and 

some of her responses appeared contrived. She reported the results of 

testing were not a valid estimation of her ability and noted that the 

claimant was in the special education curriculum but dropped out of 

school in the eleventh grade and worked briefly at two jobs. Dr. Tocci 

stated if the claimant was to be re-assessed, she needed to be fully 

cooperative with the process.

On August 10, 2011, the claimant underwent another mental status 

evaluation performed by Dr. Donald W. Blanton, licensed professional 

counselor, at the request of the Agency. His diagnostic impressions were 

dysthymic disorder, pain disorder with depression, mild mental 

retardation and he assigned a Global Assessment of Functioning of 50 

indicating serious symptoms. On the WAIS-IV adult intelligence [s]cale, 

Ms. Bouler obtained a full-scale IQ score of 61. Dr. Blanton opined the 

claimant scored in the mild range of mental retardation on this 

administration of the WAIS-IV. It was felt to be a valid assessment of her 

current level o[f] intellectual functioning, as there were no distracting 

factors during the testing session. The claimant appeared to put good 

effort into her work. He noted she appeared to have long-term problems 

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with depression worsened by chronic pain. On mental status examination, 

he noted her thoughts and conversation were simple but logical with 

associations intact. He affect was flat but appropriate and no confusion 

was noted. She complained of anxiety and appeared tense. Her mood was 

depressed and she cried often. . . . Her insight was limited and judgment 

considered fair for work and financial decisions. 

DDS mental health expert[] Dr. Donald Hinton found that the claimant 

had a mild limitation in the restriction of daily living; moderate difficulties 

in maintain[ing] social functioning and moderate difficulties in 

maintaining concentration, persistence or pace. He noted she was likely to 

experience no episodes of decompensation. Dr. Hinton indicated the 

claimant had mild mental retardation but stated she was able to care for 

her personal needs, prepare complete meals and perform most household 

chores without assistance. He indicated she was able to drive and 

shopped as needed. She watched television in her spare time and 

socialized with others. She reported a short attention span and some 

difficulty with written and spoken instructions. She reported she was 

unable to handle stress or changes to her routine. He noted she was able to 

complete all forms in the file. He found that with treatment and treatment 

compliance, significant improvement would be expected in her mental 

health.

Dr. Hinton found that the claimant had the ability to understand, 

remember and carry out very short and simple instructions and could 

attend for two hour[] intervals. He noted contact with the general public 

should be infrequent and casual and not a usual part of the job. He noted 

changes to the work setting should be minimal and well structured. He 

stated the claimant might need assistance with plans and goals that go 

beyond the simple and repetitive ones.

The claimant began treatment with the West Alabama Mental Health 

Center in September 2011. The claimant was seen on September 23, 2011 

for therapy. The therapist noted the claimant had anger outburst[s] and 

reported being aggravated with accomplishing a task. On December 1, the 

claimant was administratively removed from the program because of no 

contact since September 23 and three missed scheduled appointments.

. . .

In terms of the claimant’s alleged mental condition, I find that the 

claimant has mild mental retardation and was in special education classes 

in two grades while in school. Results of the first consultative examination 

performed by Dr. Tocci at Exhibit 4F indicated that the claimant was 

malingering and did not put forth good effort on the intelligence testing. 

She obtained a full-scale IQ of 50 that Dr. Tocci opined was not valid. Dr. 

Tocci estimated her intellectual functioning within the low average range 

of intellectual ability. The examiner noted the claimant did not appear to 

put forth her best effort and some of her responses appeared contrived.

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The Agency scheduled a second consultative psychological evaluation 

that was performed by Dr. Donald Blanton at Exhibit 5F. Dr. Blanton

administered the WAIS-IV intelligence test and the claimant obtained a 

full-scale IQ score of 61 placing her in the mild range of mental 

retardation. He noted the scores were valid as there were no distracting 

factors during the testing and the claimant appeared to put good effort 

into her work. On mental status examination, Dr. Blanton indicated the 

claimant arrived on time. Her thoughts and conversation were simple but 

logical and associations were intact. Her affect was flat but appropriate 

and no psychomotor retardation or agitation was noted. Her insight was 

limited and judgment was considered fair for work and financial type 

decisions.

As earlier discussed, the diagnostic description for mental retardation 

reads[:] “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.” It is 

noted that the claimant’s full scale IQ of 61 would satisfy the first element 

in the introductory paragraph. However, element two then requires 

deficits in adaptive functioning which is met as long as there are 

significant limitations in at least two of the following areas: 

communication, self-care, home living, social/interpersonal skills, use of 

community resources, self-direction, functional academic skills, work, 

leisure, health and safety. Here the evidence[,] as discussed above[,] does 

not support deficits. The claimant is able to communicate effectively, she 

is able to care for her personal needs without assistance and is able to 

drive and shop. Ms. Bouler testified that she is able to perform simple 

math and is able to pay bills and count change. She is able to handle a 

savings account. School records indicated that the claimant was in special 

education classes for the tenth and eleventh grades but her grades were 

mostly Bs and Cs. Relevant to the other areas of adaptive functioning, Ms. 

Bouler stated she cares for her personal needs independently and cares for 

two others. Further, she performs activities of daily living[,] including 

household chores of cleaning, washing dishes, laundry and cooking. 

These activities fail to demonstrate the deficits in adaptive functioning as 

required by the core elements of mental retardation. I find that the above 

evidence does not substantiate the level of limitation as alleged by the 

claimant.

I find the assessments of the DDS mental health expert to be persuasive 

and consistent with the other medical evidence of record. He noted the 

claimant was capable of work with the ability to understand, remember 

and carry out very short and simple instructions. He noted she could 

attend for two hour[] intervals. He also noted contact with the general 

public should not be a usual part of her job and work changes would be 

minimal and well structured. I agree with the assessment of Dr. Hinton 

and find that the claimant is capable of unskilled work activity. 

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. . .

Although the claimant has no past relevant work, she testified at the 

hearing that she stopped working because of problems with her feet and 

back and not because of any mental limitations.

. . .

5. The claimant has no past relevant work (20 CFR 416.965).

. . .

6. The claimant was born on February 4, 1967 and was 44 years old, 

which is defined as a younger individual age 18-49, on the date the 

application was filed (20 CFR 416.963).

7. The claimant has a limited education and is able to communicate 

in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant

does not have past relevant work (20 CFR 416.968).

9. Considering the claimant’s age, education, work experience, and 

residual functional capacity, there are jobs that exist in significant 

numbers in the national economy that the claimant can perform (20 CFR 

416.969, and 416.969(a)).

. . .

If the claimant had the residual functional capacity to perform the full 

range of light work, a finding of not disabled would be directed by 

Medical-Vocational Rule 202.17. However, the claimant’s ability to 

perform all or substantially all of the requirements of this level of work 

has been impeded by additional limitations. To determine the extent to 

which these limitations erode the unskilled light occupational base, the 

Administrative Law Judge asked the vocational expert whether jobs exist 

in the national economy for an individual with the claimant’s age, 

education, work experience, and residual functional capacity. The 

vocational expert testified that given all of these factors the individual 

would be able to perform the requirements of representative occupations 

such as cleaner (DOT 333.687-014) that she graded as light and unskilled;

assembler (DOT 706.687-010) that she graded as light and unskilled[;] and 

bagger (DOT 920.687-018) that she graded as light and unskilled. Ms. 

Schulman further testified that statewide there were approximately 4,000 

jobs as cleaner; 3,000 jobs as assembler[;] and 3,500 jobs as bagger. She 

added nationally there were approximately 366,000 jobs as cleaner; 

155,000 jobs as assembler[;] and 311,000 jobs as bagger.

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Pursuant to SSR 00-4p, the undersigned has determined that the 

vocational expert’s testimony is consistent with the information contained 

in the Dictionary of Occupational Titles.

Based on the testimony of the vocational expert, the undersigned

concludes that, considering the claimant’s age, education, work 

experience, and residual functional capacity, the claimant is capable of 

making a successful adjustment to other work that exists in significant 

numbers in the national economy. A finding of not disabled is therefore 

appropriate under the framework of the above-cited rule.

10. The claimant has not been under a disability, as defined in the 

Social Security Act, since March 22, 2011, the date the application was 

filed (20 CFR 416.920(g)). 

 

(Tr. 15, 16, 17, 18, 19, 19-20,20, 22, 23 & 24 (internal citations and most quotation marks 

omitted; emphasis in original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-

3) and, thus, the hearing decision became the final decision of the Commissioner of 

Social Security.

DISCUSSION

A claimant is entitled to an award of supplemental security income benefits 

when she is unable to engage in substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to result in death or 

last for a continuous period of not less than 12 months. See 20 C.F.R. § 416.905(a) (2014). 

In determining whether a claimant has met her burden of proving disability, the 

Commissioner follows a five-step sequential evaluation process. See 20 C.F.R. § 416.920. 

At step one, if a claimant is performing substantial gainful activity, she is not disabled. 

20 C.F.R. § 416.920(b). At the second step, if a claimant does not have an impairment or 

combination of impairments that significantly limits her physical or mental ability to do 

basic work activities (that is, a severe impairment), she is not disabled. 20 C.F.R. §

416.920(c). At step three, if a claimant proves that her impairments meet or medically 

equal one of the listed impairments set forth in Appendix 1 to Subpart P of Part 404, the 

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claimant will be considered disabled without consideration of age, education and work 

experience. 20 C.F.R. § 416.920(d). At the fourth step, if the claimant is unable to prove 

the existence of a listed impairment, she must prove that her physical and/or mental 

impairments prevent her from performing her past relevant work. 20 C.F.R. § 416.920(f). 

And at the fifth step, the Commissioner must consider the claimant’s residual functional 

capacity, age, education, and past work experience to determine whether the claimant 

can perform other work besides past relevant work. 20 C.F.R. § 416.920(g). Plaintiff 

bears the burden of proof through the first four steps of the sequential evaluation 

process, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 

119 (1987), and while the burden of proof shifts to the Commissioner at the fifth step of 

the process to establish other jobs existing in substantial numbers in the national 

economy that the claimant can perform,2 the ultimate burden of proving disability 

never shifts from the plaintiff, see, e.g., Green v. Social Security Administration, 223 

Fed.Appx. 915, 923 (11th Cir. May 2, 2007) (“If a claimant proves that she is unable to 

perform her past relevant work, in the fifth step, ‘the burden shifts to the Commissioner 

to determine if there is other work available in significant numbers in the national 

economy that the claimant is able to perform.’ . . . Should the Commissioner 

‘demonstrate that there are jobs the claimant can perform, the claimant must prove she 

is unable to perform those jobs in order to be found disabled.’”).3

The task for the Magistrate Judge is to determine whether the Commissioner’s 

decision to deny claimant benefits, on the basis that she is capable of performing those 

 2 See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004) 

(“The burden [] temporarily shifts to the Commissioner to demonstrate that ‘other work’ which 

the claimant can perform currently exists in the national economy.”).

3 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir.R. 36-2.

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light jobs identified by the vocational expert, is supported by substantial evidence. 

Substantial evidence is defined as more than a scintilla and means such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion. 

Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining 

whether substantial evidence exists, we 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).4 Courts are precluded, however, 

from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. 

Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d

1206, 1210 (11th Cir. 2005)). And, “[e]ven if the evidence preponderates against the 

Commissioner’s findings, [a court] must affirm if the decision reached is supported by 

substantial evidence.” Id., citing Crawford v. Commissioner of Social Security, 363 F.3d 

1155, 1158-1159 (11th Cir. 2004).

On appeal to this Court, Bouler contends that the ALJ erred in finding that she 

does not have the diagnostic features of mild mental retardation and, consequently, 

erred in finding that she does not meet Listing 12.05C. (See Doc. 12, at 1; see also id. at 1-

6.) Thus, given the nature of plaintiff’s arguments, this case is solely a step three case. 

See 20 C.F.R. § 416.920(d) (“If you have an impairment(s) which meets the duration 

requirement and is listed in appendix 1 or is equal to a listed impairment(s), we will 

find you disabled without considering your age, education, and work experience.”).

In this circuit, Bouler bears the burden of proving that she has an impairment 

which meets or is medically equivalent to a listed impairment. Frame v. Commissioner, 

Social Security Administration, 2015 WL 150733, *2 (11th Cir. Jan. 13, 2015) (“To prevail at 

 4 This Court’s review of the Commissioner’s application of legal principles, 

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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step three, the claimant must provide specific evidence—such as medical signs, 

symptoms, or laboratory-test results—showing that her impairment meets or medically 

equals a listed impairment. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891 (1990). 

‘For a claimant to show that h[er] impairment matches a listing, it must meet all of the 

specified medical criteria. An impairment that manifests only some of those criteria, no 

matter how severely, does not qualify.’”). Once an impairment is shown to meet or 

medically equal a listed impairment, a claimant is “conclusively presumed to be 

disabled based on . . . her medical condition.” Crayton v. Callahan, 120 F.3d 1217, 1219 

(11th Cir. 1997).

To establish presumptive disability under §12.05C, a claimant must present 

evidence of "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a 

physical or other mental impairment imposing additional and significant work-related 

limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05C. In addition, while 

plaintiff must “also satisfy the ‘diagnostic description’ of mental retardation in Listing 

12.05[,]”Cooper v. Commissioner of Social Security, 217 Fed.Appx. 450, 452, 2007 WL 

543059, *1 (6th Cir. Feb. 15, 2007), citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001), 

the law in this circuit is clear that where, as here, a claimant has presented a valid IQ 

score of 60 to 70, she is entitled to the presumption that she manifested deficits in 

adaptive functioning before the age of 22, Hodges v. Barnhart, 276 F.3d 1265, 1266 & 

1268-1269 (11th Cir. 2001).5 Indeed, the Eleventh Circuit has concisely set forth what a 

claimant must prove in order to establish that she meets Listing 12.05 (“intellectual 

 5 This presumption is rebuttable, the Commissioner being charged with the task of 

determining whether there is sufficient evidence (relating to plaintiff’s daily life) to rebut the 

presumption. Grant v. Astrue, 255 Fed.Appx. 374, 375 (11th Cir. Nov. 13, 2007).

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disability”6), and more specifically Listing 12.05C, in a recent, albeit unpublished, 

decision. See Frame, supra, at *2-3.

To meet listing 12.05 . . ., “a claimant must at least (1) have 

significantly subaverage general intellectual functioning; (2) have deficits 

in adaptive behavior; and (3) have manifested deficits in adaptive 

behavior before age 22.” Crayton, 120 F.3d at 1219.7 These requirements are 

referred to as the listing’s “diagnostic criteria.” See 20 C.F.R. pt. 404, subpt. 

P, app. 1, § 12.00 (“Listing 12.05 contains an introductory paragraph with 

the diagnostic description for [intellectual disability].”) In addition to 

satisfying the diagnostic criteria, a claimant must meet one of the four 

severity requirements in paragraphs A through D of the listing. See id. § 

12.05. Under paragraph C, the only paragraph at issue here, a claimant 

must show that she has both “[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.”

 6 “Effective September 3, 2013, the Social Security Administration replaced the 

term mental retardation with the term intellectual disability as a listed impairment. This change 

was made because ‘the term “mental retardation” has negative connotations,’ and ‘has become 

offensive to many people.’ But this change ‘d[id] not affect the actual medical definition of the 

disorder or available programs or services.’” Frame, supra, at *2 n.2 (internal citations omitted). 

Because the ALJ’s decision issued before the change took effect (Tr. 24 (decision issued on 

November 13, 2012)), and the parties have made use of the old terminology, this Court will 

likewise utilize the old terminology. See Hickel v. Commissioner of Social Security, 539 Fed.Appx. 

980, 982 n.2 (11th Cir. Oct. 28, 2013) (“Because the amendment does not effect a substantive 

change, and to avoid confusion, this opinion uses the term ‘mental retardation’ used by the 

parties and the ALJ.”).

7 “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. Pt. 404, Subpt. P, App. 1, § 12.05. “’Adaptive functioning’ refers to a person’s ability to 

perform activities of daily living and social functioning.” Fischer v. Barnhart, 129 Fed.Appx. 297, 

301-302, 2005 WL 352451, *4 (7th Cir. Feb. 11, 2005) (citation omitted); see also Hickel, supra, 539 

Fed.Appx. at 983 n.4 (“The Social Security Administration’s Program Operations Manual 

System [] states that the phrase ‘adaptive functioning’ refers to ‘the individual’s progress in 

acquiring mental, academic, social and personal skills as compared with other unimpaired 

individuals of his/her same age.’ Similarly, the American Psychiatric Association states that the 

phrase refers to how effectively an individual copes with the common demands of life and how 

well the individual meets the standards for personal independence of someone in her particular 

age group, sociocultural background, and community setting.” (internal citations omitted)); 

Harper v. Colvin, 2014 WL 3733119, *6 (N.D. Ala. Jul. 25, 2014) (“’[A]daptive activities’ include 

‘cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a 

residence, caring appropriately for your grooming and hygiene, using telephones and 

directories, and using a post office.’”). 

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A valid IQ score of 60 to 70 satisfies the first prong of paragraph C 

and creates a rebuttable presumption that the claimant satisfies the 

diagnostic criteria for intellectual disability. See Hodges v. Barnhart, 276 

F.3d 1265, 1268-69 (11th Cir. 2001). At the same time, it is well established 

that such a presumption does not arise where a qualifying IQ score is 

inconsistent with other record evidence concerning her daily activities and 

behavior. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citing Popp 

v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)). But once the ALJ accepts 

an IQ sore as valid and finds that the claimant’s impairments meet or 

medically equal the other criteria of listing 12.05C, the disability 

determination cannot be based on the claimant’s age, education, or work 

experience.

In sum, a claimant proves that she meets listing 12.05C by 

establishing the diagnostic criteria for intellectual disability, including 

deficits in adaptive functioning8; showing onset before age 22; producing a 

valid, qualifying IQ score; and exhibiting the requisite deficits in workrelated functioning.

Id. (footnote added); see also Lackey v. Colvin, 2014 WL 1338104, *12 (N.D. Ala. 

Mar. 28, 2014) (“[W]here the claimant relies on 12.05(C), the claimant must meet 

the three diagnostic requirements in the introductory paragraph and also meet 

the requirements set forth in (C).” (emphasis in original)).

With these general principles in mind, the Court considers the alleged errors 

made by the ALJ in this case, that is, whether the ALJ erred in finding that plaintiff does 

not have the diagnostic features of mild mental retardation and, consequently, erred in 

finding that she does not meet Listing 12.05C. Initially, to the extent plaintiff means to 

suggest that the ALJ failed to specifically give her the benefit of the presumption 

recognized in Hodges, supra, 276 F.3d at 1266-1267 (“We agree with other circuits in 

concluding that there is a presumption that mental retardation is a condition that 

 8 “’The essential feature of Mental Retardation is significantly subaverage general 

intellectual functioning that is accompanied by significant limitations in adaptive functioning in 

at least two of the following areas: communication, self-care, living, social/interpersonal skills, 

use of community resources, self-direction, functional academic skills, work, leisure, health, and 

safety.’” Tabor v. Astrue, 2012 WL 1020432, *7 n.29 (N.D. Fla. Feb. 22, 2012) (quoting DSM-IV at 

40), report and recommendation adopted, 2012 WL 1059089 (N.D. Fla. Mar. 27, 2012).

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remains constant throughout life. Therefore, we find that a claimant need not present 

evidence that she manifested deficits in adaptive functioning prior to the age of twentytwo, when she presented evidence of low IQ test results after the age of twenty-two. We 

reverse the district judge with directions to remand to the administrative law judge for 

a determination of whether there is substantial evidence to rebut this presumption of a 

fairly constant mental capacity before the age of twenty-two.”), this Court finds no error 

in the ALJ’s failure to make specific mention of the Hodges presumption inasmuch as the 

ALJ did not challenge the validity of Bouler’s full-scale IQ score of 61 (compare Tr. 20 

(“Ms. Bouler obtained a full-scale IQ score of 61.”) with id. at 22 (“It is noted that the 

claimant’s full scale IQ of 61 would satisfy the first element in the introductory 

paragraph[.]”)). See Garrett v. Astrue, 244 Fed.Appx. 937, 939 (11th Cir. Jul. 3, 2007) (“It 

was not error for the ALJ not to mention the Hodges presumption because the ALJ did 

not challenge that Garrett’s low IQ began before age twenty-two.”).9 Accordingly, the 

Court turns its attention to the pivotal issue in this case of whether substantial evidence 

in the record supports the ALJ’s determination that Bouler lacked the required level of 

deficits in adaptive functioning to meet Listing 12.05. This is the actual proper framing 

of the issue inasmuch as until the requirements set forth in the introductory paragraph 

 9 To the further extent that plaintiff argues that “the ALJ’s adoption of the severe 

impairment of mild mental retardation presumes the presence of adaptive deficits[]” (Doc. 12, at 

3), the Court finds this position unpersuasive and untenable. See Hickel, supra, 539 Fed.Appx. at 

982, 985 & 985 n.9 (“Here the ALJ determined at steps one and two that Hickel had not engaged 

in substantial gainful activity since birth and had the severe impairment of mild mental 

retardation. At step three, the ALJ concluded that Hickel’s impairment of mild mental 

retardation did not meet or equal a listed impairment, specifically the mental retardation listing 

in [20] C.F.R. pt. 404, subpt. P, app. 1, § 12.05[.] . . . [S]ubstantial evidence supports the ALJ’s 

finding that Hickel lacked the required level of deficits in adaptive functioning to meet Listing 

12.05. [] Because substantial evidence supports the ALJ’s finding that Hickel did not meet the 

‘deficits in adaptive functioning’ requirement in § 12.05’s introduction, we do not address the 

ALJ’s alternative finding that Hickel also did not have ‘a physical or other mental impairment 

imposing an additional and significant work-related limitation of function,’ as required by 

paragraph C of listing 12.05.”).

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of § 12.05 are met, there is no need for the ALJ to discuss the specifics of paragraph C of 

Listing 12.05. Compare Hickel, supra, 539 Fed.Appx. at 985 & n.9 with Lackey, supra, at *12.

In this case, the ALJ found that despite Bouler’s valid full scale IQ score of 61, she 

did not have “deficits in adaptive functioning” based upon the following:

The claimant is able to communicate effectively, she is able to care for her 

personal needs without assistance and is able to drive and shop. Ms. 

Bouler testified that she is able to perform simple math and is able to pay 

bills and count change. She is able to handle a savings account. School 

records indicated that the claimant was in special education classes for the 

tenth and eleventh grades but her grades were mostly Bs and Cs. Relevant 

to the other areas of adaptive functioning, Ms. Bouler stated she cares for 

her personal needs independently and cares for two others. Further, she 

performs activities of daily living[,] including household chores of 

cleaning, washing, laundry and cooking.

(Tr. 22.)10 Bouler does not dispute that she can communicate effectively, drive, shop, 

perform simple math, count change, pay bills, handle a savings account, cook, clean, 

 10 The ALJ also noted in a later paragraph that “[a]lthough the claimant has no past 

relevant work, she testified at the hearing that she stopped working because of problems with 

her feet and back and not because of any mental limitations.” (Tr. 23.) The Court finds this 

statement relevant to plaintiff’s argument in brief that the fact she had no past relevant work 

and that the work she did have for short periods of time were unskilled jobs weighs in favor of 

a finding of deficits in the “work” skill area (see Doc. 12, at 4). This Court agrees with the ALJ’s 

observation in this regard particularly in light of the Hickel court’s agreement with the ALJ that 

a claimant’s engagement in part time work, that is, work that does not constitute substantial 

gainful activity, is still relevant to the “deficits in adaptive functioning” inquiry. See 539 

Fed.Appx. at 982 & 984. Accordingly, the undersigned finds relevant to the “deficits in adaptive 

functioning” inquiry the evidence in the record which establishes that Bouler stopped working 

as a packer at a poultry farm and a presser of clothes at a cleaners (see Tr. 124 & 137) because she 

was having problems with her back and feet (Tr. 34). To be sure, plaintiff testified that she was 

fired from the cleaners because she was “messing the clothes up[]” (id.); however, there is 

nothing to indicate that her inability to iron clothes correctly was attributable to intellectual 

limitations, as opposed to physical limitations, particularly in light of her later testimony that 

she became unable to work in June of 2009 because of problems with her feet, back, and hands 

(id.; see also Tr. 193 (Bouler reported to Dr. Nina E. Tocci that she “could not handle the standing 

and ironing”)). Cf. Syler v. Colvin, 2014 WL 1092751, *11 (S.D. Ala. Mar. 20, 2014) (finding 

significant that the record contained “no allegation that Plaintiff ever quit working due to any 

mental or cognitive impairment.”).

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wash dishes, do laundry, care for her personal needs, and take care of her children11. 

(See Doc. 12, at 5.) Instead, she relies upon the undersigned’s decision in Frank v. Astrue, 

2011 WL 6111692 (S.D. Ala. Dec. 8, 2011) to argue that “[t]here is no basis for [the ALJ’s] 

belief that an individual with mental retardation should not be able to communicate, 

drive, shop, count change, and perform activities of daily living.” (Id.) The undersigned 

finds the claimant’s reliance on Frank to be unavailing because that case did not address 

the question squarely before this Court, namely, whether substantial evidence in the 

record supports the ALJ’s determination that the claimant lacks the required level of 

deficits in adaptive functioning to meet Listing 12.05; instead, in Frank, this Court 

prominently noted that the ALJ did not “cite to, discuss, or otherwise reference section 

12.05(C)[,]” id. at *4, and, thereafter, indicated—but made no final determination—that 

“it does not appear that the other evidence in this record—specifically, the plaintiff’s 

daily activities and behavior—is inconsistent with her IQ testing[,]” id. at *6, as a 

prelude to remanding the case for further development of the record, id. at *7. Because 

the Eleventh Circuit case law set forth heretofore recognizes that those “matters” or 

“activities” cited by the ALJ, as reference above by the Court, bear directly on the 

question of whether Bouler has “deficits in adaptive functioning,]” compare, e.g., Hickel, 

supra, at *984 (“There is evidence in the record to support the ALJ’s findings with 

respect to Hickel’s daily activities and behavior. Hickel does not dispute that she is a 

high school graduate, she works part time at a nursery, she drives herself to work, she 

can prepare simple meals and dress and groom herself, she attends church regularly, 

and she socializes with friends.”) with Garrett, supra, 244 Fed.Appx. at 939 (“The record 

supports the finding by the ALJ that the required limitations to adaptive functioning 

 11 There is evidence in the record to support these findings by the ALJ.(See. e.g., Tr. 

32-33, 36, 129-134, 147, 194 & 199-200.)

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were not present, despite Garrett’s low IQ score. Garrett is able to cook simple meals; 

perform chores such as dishwashing and yard work; and build model cars. Garrett’s 

daily activities include church attendance, television viewing, card playing, and 

walking in the mall. Garrett also testified that, with orientation and instruction, he 

believed he could return to a job as a stock assistant.”), this Court REJECTS plaintiff’s 

contention to the contrary.

In addition to the activities and behavior cited by the ALJ (Tr. 22), the record 

evidence also reflects that plaintiff has friends (compare Tr. 36 (during her hearing 

testimony, plaintiff made reference to a friend named “Adonna”) with Tr. 199 (“She has 

a boyfriend that she sees on the weekends. . . . She does spend some time with her sister 

and a cousin.”)), her daily activities include watching television and playing dominoes 

and other games with her children (Tr. 199-200; see also Tr. 133 (watching television was 

reported as plaintiff’s sole hobby or interest)), and walking in her yard (Tr. 129).12

Moreover, Dr. Tocci, a psychologist who administered the WAIS-IV IQ test on May 31, 

2011, found plaintiff’s test results invalid (Tr. 195) but estimated her functioning to be 

“within the low range of intellectual ability.” (Tr. 194.) Finally, though Dr. Donald W. 

Blanton, another psychologist who administered the WAIS-IV on August 10, 2011, 

found plaintiff to have a valid full scale IQ of 61 (Tr. 200) and diagnosed mild mental 

retardation (Tr. 201), he did not specifically note any deficits in adaptive function (see 

Tr. 198-201), as he has shown himself capable of doing in other cases, see Reed v. Colvin, 

2014 WL 2973256, *2 (N.D. Ala. Jun. 30, 2014) (“Dr. Blanton opined that claimant’s 

mental retardation was a lifelong condition, and that claimant ‘demonstrate[d] deficits 

in adaptive functioning due to his mental retardation manifested prior to age 22 in the 

 12 See Garrett, supra, 244 Fed.Appx. at 939 (referencing card playing and walking in 

the mall).

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following areas: (1) Communication[;] (2) Work[;] (3) Health [and] Safety[; and] (4) 

Functional Academic Skills.’”).

In consideration of the foregoing, this Court finds that Bouler’s activities and 

behavior rebutted the presumption created by Hodges and established that plaintiff did 

not have “deficits in adaptive functioning[.]” (Tr. 22.) In other words, substantial 

evidence of record supports the ALJ’s finding that Bouler lacked the required level of 

deficits in adaptive functioning to meet Listing 12.05. See Bailey v. Colvin, 2015 WL 

661375, *4 (N.D. Ala. Feb. 17, 2015) (finding that the claimant did not have the necessary 

adaptive functioning deficits to meet Listing 12.05 where the record indicated the 

claimant was able “to do laundry, care for her son, watch television, drive a car, shop in 

stores, and care for her basic personal needs independently.”). 

Because Bouler raises no other error, compare Lackey, supra, at *11 & 13 

(considering the sole error raised by the claimant of “whether the ALJ erred in finding 

that the claimant did not meet Listing 12.05C”) with Turman v. Colvin, 2015 WL 500810, 

*4 (M.D. Ga. Feb. 5, 2015) (“Because the Court holds that the ALJ’s finding that Plaintiff 

did not prove deficits in adaptive functioning is not reversible error, Plaintiff’s other 

contention [that the ALJ erred with respect to the other ‘physical or mental impairment’ 

requirement of 12.05C] is moot.”),13 the Commissioner’s decision must be affirmed.

CONCLUSION

It is ORDERED that the decision of the Commissioner of Social Security denying 

 13 Indeed, counsel for plaintiff specifically stated during oral argument on February 

20, 2015, that he had no “qualms” about the ALJ’s RFC determination.

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plaintiff benefits be affirmed.

DONE and ORDERED this the 2nd day of March, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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