IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

LISA CROOM, :

Plaintiff, :

vs. : CA 14-0585-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking 

judicial review of a final decision of the Commissioner of Social Security denying her

claim for a period of disability, disability insurance benefits, and supplemental security 

income. 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. 19 & 21

(“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 postjudgment proceedings.”).) Upon consideration of the administrative record, plaintiff’s 

brief, the Commissioner’s brief, and the arguments of counsel at the October 5, 2015

hearing before the Court, it is determined that the Commissioner’s decision denying

benefits should be reversed and remanded for further proceedings not inconsistent with 

this decision.

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. 19 & 21 (“An appeal from a 

(Continued)

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2

Plaintiff alleges disability due to mild mental retardation, carpal tunnel 

syndrome/tendonitis of the right hand, migraine headaches, diabetes mellitus, and 

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

1. The claimant meets the insured status requirements of the Social 

Security Act through December 31, 2013.

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

January 10, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 

416.971 et seq.).

. . .

3. The claimant has the following severe impairments: tendonitis of 

the right hand, migraine headaches, diabetes mellitus, type II, learning 

disorder and glaucoma (20 CFR 404.1520(c) and 416.920(c)).

4. 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 

404.1520(d), 404.1525, 404.1526, 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. In 

making this finding, the undersigned has considered whether the 

“paragraph B” criteria are satisfied. To satisfy the “paragraph B” criteria, 

the mental impairment must result in at least two of the following: 

marked restriction of activities of daily living; marked difficulties in 

maintaining social functioning; marked difficulties in maintaining 

concentration, persistence, or pace; or repeated episodes of 

decompensation, each of extended duration. A marked limitation means 

 

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 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 2 of 17
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more than moderate but less than extreme. Repeated episodes of 

decompensation, each of extended duration, means three episodes within 

1 year, or an average of once every 4 months, each lasting for at least 2 

weeks.

. . .

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

finds that the claimant has the residual functional capacity to perform

medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except 

that the claimant has no limitations to sitting, standing, walking, lifting, 

carrying, climbing, crawling, squatting, handling objects, using hand 

and foot controls, talking, listening and traveling. The claimant has no 

deficits in the ability to remember, understand and carry out simple 

tasks. She has no deficits in the ability to respond appropriately to 

supervisors, the public or in the ability to manage routine stressors in a 

work setting. The claimant has marked limitations in the ability to 

understand detailed or complex instructions, carry out detailed or 

complex instructions, remember detailed or complex instructions and 

use judgment in detailed or complex work-related decisions.

. . .

Ms. Croom testified she has never had a checking account. She has a 

driver’s license but took the oral test two times before she passed. 

. . .

Educational records were submitted from the Amelia Love Johnson High 

School. Report card for the first semester of 2005 when the claimant was in 

twelfth grade indicated 74 in English; 79 in Geometry-B; 91 in 

Government; 70 in applied chemistry; 92 in money dynamics; 100 in 

physical education and 80 in AHSGE social studies.

Third party function report was completed in November 2011 by Loretta 

Cox, the claimant’s sister. . . . Ms. Cox accompanies her when she needs to 

go out because Ms. Croom cannot read too well. . . . She identified 

problems as [] memory, concentration, understanding, following 

directions and using hands. . . . She noted memory problems and does not 

understand what you have asked. She is not able to follow instructions too 

well . . . . She is not able to pay attention very long and is not able to finish 

what she starts. She cannot follow written or spoken directions very well 

because she is not able to read or understand. She does not get along with 

authority figures very well because she cannot follow directions.

. . .

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Ms. Croom completed a Function Report—Adult in November 2011. On 

this form, she stated she lives in a house with her family. . . . She 

sometimes needs reminders to take care of her personal needs like 

combing her hair and putting on clothes. She does not need reminders to 

take her medicine. She does not prepare meals and does not perform 

household chores or yard work because of the pain in her hands. She does 

not go out often [but] is able to ride in a car. She is able to go out alone. 

The claimant does not drive because her hands would not let her steer 

well and they hurt. She is able to shop in stores for personal needs but 

does not go very often. She is not able to pay bills, count change, handle a 

savings account or use a checkbook/money order. Her sister pays the 

bills. . . . She listed hobbies as watching television and reading sometimes. 

She does these hobbies all the time but mostly watches television. . . . She 

spends time with others just sitting around, laughing and talking but she 

does not do these activities very often. On a regular basis, she takes her 

baby to the doctor, goes to church and goes to the grocery store when 

accompanied by a relative/friend. She does not go out often and does not 

take part in anything. When she goes out, she needs to be accompanied. 

Ms. Croom does not have any problems getting along with others. She 

identified problems as lifting, completing tasks and using her hands. . . . 

She cannot pay attention very long and does not always finish what she 

starts. She does not follow written or spoken instructions very well. She 

has never been fired or laid off from a job because of not getting along 

with others. She does not handle stress or changes in a routine very well. 

. . .

The claimant has alleged an onset date of January 20, 2011. In connection 

with a prior application, Ms. Croom underwent a consultative mental 

health evaluation performed by Dr. Nina Tocci, licensed psychologist[,] on 

June 7, 2011. The diagnostic impressions were no diagnosis for Axis I and 

II and she was assigned a Global Assessment of Functioning of 85 

indicating minimal symptoms and good functioning in all areas. Dr. Tocci 

administered the WAIS-III IQ test and the claimant obtained a full scale IQ 

score of 65. Dr. Tocci opined the scores were not valid and Ms. Croom’s 

effort appeared to wane after initial subtests. The examiner stated the 

claimant performed the sample items flawlessly and then after the second 

or third items, she was not successful at any items. Dr. Tocci noted poor 

effort and stated the scores were not consistent with previous results of 

testing. She noted previous scores were extremely low and questionable. 

She noted the claimant did not appear to be invested in giving her best 

performance. Dr. Tocci suggested the claimant would benefit from 

vocational training and employment.

. . .

At the request of the Office of Disability Determinations, a consultative 

psychological evaluation was conducted by Dr. Richard Reynolds on 

November 22, 2011. Dr. Reynolds opined the claimant was malingering 

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during the interview and had a learning disability, provisional by history. 

Axis II was mild mental retardation, provisional. The claimant was 

administered the Wechsler Adult Intelligence Scale—Fourth Edition and 

obtained a full-scale IQ score of 55. Dr. Reynolds opined it was very 

difficult for him to reconcile an IQ score of 55 on the WISC-IV with an 

individual who has obtained a driver’s license, even through oral means. 

It was difficult for him to understand how an[] individual with an IQ of 55 

would have a significant work history of five years. It was difficult for him 

to understand how an individual with an IQ of 55 would pass the exit 

examination in social studies. There was some documentation regarding 

significant discrepancy among reasoning areas on IQ subtests, particularly 

on a unit examination. It is not noted on the transcript, which classes were 

special education classes or if the claimant received modifications for all 

classes. He opined the most likely diagnosis was learning disorder, not 

otherwise specified[,] with likely borderline to mild range of intellectual 

deficiency. Poor effort and inconsistencies on statements were noted on 

several evaluations. On the administration that day, Ms. Croom continued 

to demonstrate poor effort and he opined the current test results were not 

considered valid due to poor effort. He also noted that Ms. Croom did not 

allege intellectual deficiency and stated her disability was related to carpal 

tunnel syndrome and migraine headaches. Dr. Reynolds opined that the 

claimant was likely to demonstrate no deficits in the . . . ability to 

remember, understand and carry out simple tasks. She does not have any 

deficits in the ability to respond appropriately to supervisors, the public or 

the ability to manage routine stressors in a work setting. He based his 

opinion on prior work history and school history. 

. . .

The claimant’s attorney, Mr. Coplin[,] referred the claimant for a mental 

evaluation to include WAIS IV and WRAT III. Dr. Donald Blanton, 

licensed professional counselor, performed the evaluation on February 13, 

2013. On the Wechsler Adult Intelligence Scale—Fourth Edition, Ms. 

Croom obtained a full scale IQ score of 65 placing her in the mild range of 

mental retardation. He summarized that academic achievement testing 

revealed that her academic skills would be of little use to her in a 

vocational setting. Both her intellectual and academic testing appeared to 

be valid. He noted the claimant appeared to have chronic pain but was 

emotionally healthy at this point in her life. Dr. Blanton diagnosed mild 

mental retardation, pain disorder without psychological features and 

financial problems. He offered a Global Assessment of Functioning of 60 

indicating only moderate symptoms. Dr. Blanton opined the claimant had 

marked limitations in the ability to understand detailed or complex 

instructions, carry out detailed or complex instructions, remember 

detailed or complex instructions and use judgment in detailed or complex 

work-related decisions. She had functional adaptation problems in the 

areas of communication, work and functional academic skills. 

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 5 of 17
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DDS mental health consultant, Dr. Joanna Koulianos found that the 

claimant’s allegations were only partially credible. She noted the claimant 

was able to understand, remember and carry out short and simple 

instructions and could concentrate and attend for reasonable periods of 

time. She noted contact with the general public should be limited and 

changes in work duties should be limited and introduced gradually. I 

agree in part with the assessment of the DDS mental health expert but 

instead ha[ve] assigned greater weight to the opinions of the consultative 

examiners, Drs. Reynolds and Tocci.

. . .

With regard to the claimant’s mental limitations, I find that the claimant 

has a history of special education classes with IEP stating weaknesses in 

math and reading. Report card submitted from the Amelia Love Johnson 

High School indicated the claimant was taking Geometry, Applied 

Chemistry, Biology, US History and Applied Biology all with passing 

grades. I find it most unusual for an individual to be taking such 

accelerated classes with a learning disability.

In terms of the claimant’s mental limitations, I have accepted the 

assessments of Drs. Reynolds at Exhibit 6F and Dr. Blanton at Exhibit 17F.

Dr. Reynolds found that the claimant was malingering during the 

interview and the results of testing were invalid. He noted Ms. Croom 

demonstrated poor effort on testing. Dr. Reynolds diagnosed history of 

learning disorder and I agree with this assessment. He opined the 

claimant was likely to demonstrate no deficits in the ability to remember, 

understand and carry out simple tasks. She does not have any deficits in 

the ability to respond appropriately to supervisors, the public or in the 

ability to manage routine stressors in a work setting. He based his opinion 

on prior work history and school history. Dr. Blanton diagnosed mild 

mental retardation and opined that the claimant had[] marked limitations 

in the ability to understand detailed or complex instructions, carry out 

detailed or complex instructions, remember detailed or complex 

instructions and use judgment in detailed or complex work-related 

decisions. I have accepted the assessment of Dr. Blanton and found that 

the claimant could perform no more than unskilled work activity.

The claimant was evaluated in June of 2011 by Dr. Nina Tocci in 

connection with a prior application; however, it is after the alleged onset 

of disability. Dr. Tocci offered no diagnoses and assigned a GAF of 85 

indicating only minimal symptoms and good functioning in all areas. Dr. 

Tocci opined the scores obtained on the WAIS-II[I] were not valid as Ms. 

Croom’s effort appeared to wane after initial subtests. She stated the 

claimant did not appear to be giving her best performance. I find that the 

assessment of Dr. Tocci further confirms the conclusions of Dr. Reynolds 

as discussed above. 

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 6 of 17
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Dr. Blanton found that the claimant had a valid IQ score of 65 placing her 

in the range of mild mental retardation. The diagnostic description of 

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 full scale IQ of 65 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, work, leisure, health and safety. 

The evidence supports that the claimant had deficits in only functional 

academics as educational records reported problems with math and 

reading. However, it is also noted that the claimant was taking Geometry, 

Applied Chemistry, Biology, US History and Applied Biology all with 

passing grades. Relevant to the other areas of adaptive functioning, the 

record shows that the claimant was able to successfully work for over five 

years. I find that the record fails to demonstrate the deficits in adaptive 

functioning as required by the core elements of mental retardation. 

In sum, the above residual functional capacity assessment is supported by 

medical evidence of record. I find that the claimant has severe 

impairments, but find that these impairments do not rise to the severity to 

be disabling.

6. The claimant is capable of performing past relevant work as a

hand packer. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional 

capacity (20 CFR 404.1565 and 416.965).

. . .

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

Social Security Act, from January 10, 2011, through the date of this 

decision (20 CFR 404.1520(f) and 416.920(f)). 

 

(Tr. 13-14, 14, 15, 16, 16-17, 17, 17-18, 18, 18-19, 20-21, 22-23 & 23 (internal citations 

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

In all Social Security cases, an ALJ utilizes a five-step sequential evaluation 

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 7 of 17
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to determine whether the claimant is disabled, which considers: (1) 

whether the claimant is engaged in substantial gainful activity; (2) if not, 

whether the claimant has a severe impairment; (3) if so, whether the 

severe impairment meets or equals an impairment in the Listing of 

Impairments in the regulations; (4) if not, whether the claimant has the 

RFC to perform h[is] past relevant work; and (5) if not, whether, in light of 

the claimant’s RFC, age, education and work experience, there are other 

jobs the claimant can perform.

Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2 (per 

curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. 

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the 

burden, at the fourth step, of proving that she is unable to perform her previous work. 

Jones v. Bowen, 810 F.2d 1001 (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. at 1005. Once the 

claimant establishes that she cannot perform her past relevant work, it becomes the 

Commissioner’s burden to prove that the claimant is capable, given his age, education 

and work history, of engaging in another kind of substantial gainful employment, 

which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 

1985).

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

decision to deny claimant benefits, on the basis that she can perform her past relevant 

work as a hand packer, 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 

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

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

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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).3 Courts are precluded, however, from “deciding the facts anew or reweighing 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. (quoting 

Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).

On appeal to this Court, Croom contends that the ALJ erred in rejecting the 

diagnosis of mental retardation and, in doing so, failed to provide a discussion to 

support the assertion that she did not manifest adaptive deficits, and additionally 

argues that the ALJ erred in finding that she does not meet Listing 12.05C. (Doc. 12, at 1; 

see also id. at 6-13.) Thus, given the nature of plaintiff’s arguments, this case is solely a 

step three case. See 20 C.F.R. §§ 404.1520(d) & 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, Croom 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, 596 Fed.Appx. 908, 910 (11th Cir. Jan. 13, 2015) (“To 

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

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

 3 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).

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 9 of 17
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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).4 Indeed, the Eleventh Circuit has concisely set forth what a 

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

 4 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).

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 10 of 17
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disability”5), and more specifically Listing 12.05C, in a recent, albeit unpublished, 

decision. See Frame, supra, 596 Fed.Appx. at 910-911.

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 1219.6 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.”

 5 “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, 596 Fed.Appx. at 910 (internal 

citations omitted). Because the ALJ’s decision issued before the change took effect (Tr. 24 

(decision issued on May 3, 2013)), 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.”).

6 “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.’”). 

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 11 of 17
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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 functioning7; 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 “rejecting” the diagnosis 

of mild mental retardation, and in so doing failed to provide a discussion to support his 

assertion that she did not manifest adaptive deficits, and the additional argument that 

the ALJ erred in finding that she does not meet Listing 12.05C. This Court finds it 

unnecessary to address the penultimate issue of whether plaintiff meets 12.05C because 

it is clear that the ALJ’s 12.05 analysis was deficient and it is left for the Commissioner 

 7 “’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, home 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).

Case 2:14-cv-00585-C Document 22 Filed 04/04/16 Page 12 of 17
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to determine on remand whether, in the first instance, plaintiff has sufficient adaptive 

functioning deficits to meet the requirements of the diagnostic description in Listing 

12.05 before reaching the paragraph C requirement of the mental retardation listing. 

Compare Hickel, supra, 539 Fed.Appx. at 985 & n.9 with Lackey, supra, at *12 (until the 

requirements set forth in the introductory paragraph of § 12.05 are met, there is no need 

for the ALJ to discuss the specifics of paragraph C of Listing 12.05). 

This Court would be remiss if it failed to note that the ALJ not only makes 

perfunctory mention of Listing 12.05 at step 3 of his sequential analysis (Tr. 14) but also 

then leads the reader to believe that the analysis for whether Croom’s mental 

impairment meets or equals the mental retardation listing at 12.05 is the same for other 

mental disorders (see id. (“[T]he undersigned has considered whether the ‘paragraph B’ 

criteria are satisfied. To satisfy the ‘paragraph B’ criteria, the mental impairment must 

result in at least two of the following: marked restriction of activities of daily living; 

marked difficulties in maintaining social functioning; marked difficulties in maintaining 

concentration, persistence, or pace; or repeated episodes of decompensation, each of 

extended duration.”)), when, of course, that is not the case at all, compare 20 C.F.R. Pt. 

404, Subpart P, App. 1, § 12.00 (“The listings for mental disorders are arranged in nine 

diagnostic categories: Organic mental disorders (12.02); . . . intellectual disability (12.05) 

. . . . Each listing, except 12.05 and 12.09, consists of a statement describing the 

disorder(s) addressed by the listing, paragraph A criteria (a set of medical findings), 

and paragraph B criteria (a set of impairment-related functional limitations). . . . The 

structure of the listing for intellectual disability (12.05) is different from that of the 

other mental disorders listings.” (emphasis supplied)) with Frame, supra, 596 Fed.Appx. 

at 910-911. Whether it was because of this error at Step 3 of the sequential evaluation 

process, or plaintiff’s identified error of the ALJ’s “rejection” of the diagnosis of mild 

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mental retardation (Doc. 12, at 1), the undersigned need agree with plaintiff that the 

ALJ’s abbreviated discussion of deficits in adaptive functioning is inadequate. Stated 

differently, substantial evidence of record does not support the ALJ’s determination 

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

12.05. 

In this case, the ALJ found that despite Croom’s valid IQ score of 65,8 as found by 

Dr. Blanton, she did not have “deficits in adaptive functioning” based upon the 

following:

[E]lement 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, work, leisure, health and safety. The evidence 

supports that the claimant had deficits in only functional academics as 

educational records reported problems with math and reading. However, 

it is also noted that the claimant was taking Geometry, Applied 

Chemistry, Biology, US History and Applied Biology all with passing 

grades. Relevant to the other areas of adaptive functioning, the record 

shows that the claimant was able to successfully work for over five years. 

I find that the record fails to demonstrate the deficits in adaptive 

functioning as required by the core elements of mental retardation. 

(Tr. 22 (emphasis supplied).) There are a number of problems with the ALJ’s cryptic 

analysis of deficits in adaptive functioning. First, the ALJ’s “list” of such deficits (see id.) 

is obviously incomplete in light of his very next sentence in which he explicitly finds 

 8 There can be little question but that the ALJ implicitly acknowledged in this case 

that Croom’s low IQ score began before the age of twenty-two (see Tr. 22) and, therefore, there 

was no need for the ALJ to mention the Hodges presumption. 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.”); compare id. with 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 

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 twenty-two, 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.”).

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deficits in functional academics (id.), as well as clear case law, Tabor, supra, at *7 n.29 

(“’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, home 

living, social/interpersonal skills, use of community resources, self-direction, 

functional academic skills, work, leisure, health, and safety.’” (emphasis supplied)). In 

addition to failing to include functional academic skills in his list, the ALJ also failed to 

include in that list “use of community resources” and “self-direction.” Even if this 

Court was to conclude that the ALJ properly “rejected” the idea that plaintiff had 

deficits in any of the other areas he listed—besides functional academic skills where the 

ALJ found deficits—because she successfully worked for over five years (see id.),9 this 

analysis can in no manner be read to “touch upon” the unidentified areas of “use of 

 9 While the undersigned does not suggest that plaintiff’s past work experience is 

not a relevant part of the analysis, the suggestion is made that more usually goes into the 

analysis, specifically a discussion of activities of daily living (and the like). Compare O’Neal v. 

Commissioner of Social Security, 614 Fed.Appx. 456, 459-460 (11th Cir. Jun. 10, 2015) (“The record 

shows that Mr. O’Neal held a job as a dishwasher for many years without receiving any special 

accommodation or training. He quit his job only for family reasons. Afterward, he worked 

occasionally as a handy man, helping with carpet and trim work and installing siding. Mr. 

O’Neal helps at home with light yard work, looks after his two children, independently 

performs all his activities of personal care and daily living, and attends church every Sunday. 

He holds a driver’s license and drives locally three times per week. These facts support the 

ALJ’s [] conclusion that, despite his low I.Q. score, Mr. O’Neal does not have sufficient adaptive 

functioning deficits to meet the requirements of the diagnostic description in Listing 12.05.”) 

and Perkins v. Commissioner, Social Security Admin., 553 Fed.Appx. 870, 873-874 (11th Cir. Jan. 22, 

2014) (finding the ALJ did not err in considering the claimant’s work experience and activities 

of daily living with respect to his adaptive functioning analysis in accordance with Listing 

12.05) with 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.”) and Garrett, supra, 244 Fed.Appx. at 939 (“The record supports the finding by the ALJ 

that the required limitations to adaptive functioning 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.”). 

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community resources” and “self-direction” (see Tr. 22) and, therefore, the undersigned 

would be placed in the position of having to do that which only the ALJ is authorized to 

do and that is to weigh (or effectively reweigh) the evidence and come to a decision 

regarding whether Croom possesses the required level of deficits in adaptive 

functioning to meet Listing 12.05. See Davison, supra, 370 Fed.Appx. at 996 (recognizing 

that courts are precluded from deciding the facts anew or reweighing the evidence). 

And, or course, this Court has no desire to engage in any weighing or reweighing of 

evidence in a case, like the present one, where the ALJ has ignored evidence of record of 

other deficits in adaptive functioning. Most notably, Dr. Blanton specifically determined 

in his report that Croom had functional adaptation problems in the areas of 

communication, work, and functional academic skills (Tr. 609) and Croom’s special 

education teacher, Rose Wolf, completed a questionnaire in 2006 which implicates 

deficits not only in the area of functional academic skills but also in the areas of selfcare, social/interpersonal skills, and communication (see Tr. 343-350).

In consideration of the foregoing, this Court simply cannot find that substantial 

evidence of record—identified by the ALJ—supports the finding that Croom lacked the 

required level of deficits in adaptive functioning to meet Listing 12.05. Cf. Hubbard v. 

Colvin, 2016 WL 624403, *3 (11th Cir. Feb. 17, 2016) (“[W]e decline to affirm using 

reasoning that ‘might have supported the ALJ’s conclusion’ but was not offered by the 

ALJ himself. See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam).”). 

Accordingly, this cause is due to be remanded to the Commissioner of Social Security 

for further consideration of the issue of deficits in adaptive functioning and, if 

necessary, whether plaintiff has 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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CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner 

of Social Security denying plaintiff benefits be reversed and remanded pursuant to 

sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 

115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The 

remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for 

purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 

292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over 

this matter.

DONE and ORDERED this the 31st day of March, 2016.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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