United States District Court, M.D. Tennessee, Nashville Division
JERRICA M. SMITH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
Social Security case is before the Court on a Report and
Recommendation (“R & R”)(Doc. No. 19) from
the Magistrate Judge. The R & R recommends that this
action be remanded to the Commissioner for further
consideration of whether Plaintiff's intellectual
impairment meets or equals Listing 12.05C. In making the
recommendation, the Magistrate Judge concluded that the
Administrative Law Judge (“ALJ”) erred at step
three of the applicable analysis on the following grounds:
The ALJ found that the IQ scores contained in Plaintiff's
school records and as reported by Ms. Garland were not valid
in light of Ms. Garland's suspicion that they were
“slightly low, ” Tr. 27, 339, and in light of the
substantially higher IQ scores reported by Dr. Loftin, Tr.
29. However, the ALJ accorded “little weight” to
Dr. Loftin's assessment because, inter alia, he did not
have the benefit of Plaintiff's school records. Tr. 34.
Instead, the ALJ accorded “significant weight” to
the assessments of Ms. Garland and of the state agency
reviewing psychologists. Yet, none of these psychologists had
the benefit of Plaintiff's school records either. See Tr.
336, 395, 475. Moreover, and perhaps most significantly,
although Ms. Garland suspected that Plaintiff's IQ scores
were “slightly low, ” Tr. 339, her ambiguous
diagnostic assessment - i.e., “[m]ild mental
retardation to borderline intellectual functioning, ”
Id. - did not eliminate a level of intellectual
functioning inconsistent with Listing 12.05C.
(Doc. No. 19 at 12).
Government has filed Objections to the R & R based upon
two interrelated principles. First, the Government argues the
Magistrate Judge neglected to consider that, in accordance
with the unpublished decision in Bledsoe v.
Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006), an
ALJ is under no obligation to spell out “every
consideration that went into the step three determination,
” and that a court should search the entire decision
for statements supporting that analysis. Second, the
Government relies on Justice v. Comm'r of Soc.
Sec., 515 F. App'x 583, 588 (6th Cir. 2013) for the
proposition that, “[i]n a battle of experts, the agency
decides who wins” and the “fact that [the
claimant] now disagrees with the ALJ's decision does not
mean that the decision is unsupported by substantial
considered the record de novo in accordance with
Rule 72(b)(3) of the Federal Rules of Civil Procedure, the
Court agrees with the recommended disposition. Accordingly,
the R & R will be adopted, the Government's
objections will be overruled, and this matter will be
remanded to Commissioner for further consideration.
step three, Plaintiff sought to show that her impairments
qualified under the listings in Section 12.05 of the appendix
to subpart P of 20 C.F.R. § 404. Those listings relate
to what was previously characterized as “mental
retardation, ” and is now identified as
diagnostic description for intellectual disability is
“significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e.,
the evidence demonstrates onset of impairment before age
22.” Hayes v. Comm'r of Soc. Sec., 357 F.
App'x 672, 674-75 (6th Cir. 2009). “To demonstrate
mental retardation, a claimant must demonstrate three factors
to satisfy the diagnostic description: (1) subaverage
intellectual functioning; (2) onset before age twenty-two;
and (3) adaptive-skills limitations.” Id.
Additionally, a claimant “must satisfy ‘any one
of the four sets of criteria' in Listing §
12.05.” Id. (quoting 20 C.F.R. Pt. 404,
Subpart. P, App. 1, § 12.00(A)). If an “impairment
satisfies the diagnostic description . . . and any one of the
four sets of criteria, an impairment will be found to meet
the listing.” Daniels v. Comm'r of Soc.
Sec., 70 F. App'x 868, 872 (6th Cir. 2003) (citation
the criteria, and the one at issue here, is Listing 12.05C,
which requires “[a] valid verbal performance, or full
scale IQ of 60 though 70 and a physical or other mental
impairment imposing an additional and significant
work-related limitation of function[.]” Hayes,
357 F. App'x 675. By way of shorthand, “[a]
claimant satisfies Listing 12.05C, demonstrating
‘intellectual disability' and ending the five-step
inquiry, if [s]he can show: (1) subaverage intellectual
functioning with deficits in adaptive functioning initially
manifested before age 22; (2) a valid IQ score of 60 to 70;
and (3) a physical or other mental impairment imposing an
additional and significant work-related limitation.”
Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir.
2013); see Illig v. Comm'r Soc. Sec., 570 F.
App'x 262, 265 (3d Cir. 2014) (identifying essentially
the same elements); Maresh v. Barnhart, 438 F.3d
897, 900 (8th Cir. 2006) (same).
to the facts of this case, Plaintiff, at the age of 16, was
administered WISC-III and the WJTA-R testing by a school
psychologist, and found to have a verbal IQ score of 62, a
Performance IQ of 66, a Full scale IQ score of 61, and the
ability to read and write at approximately the third grade
level. She was also found to “meet [the] criteria for
special education services as a child with mental
retardation.” (Tr. at 272-73). The ALJ appears to have
accepted that Plaintiff met the diagnostic description by
observing that Plaintiff's “testing reflects
sub-average intellectual functioning with deficits in
adaptive functioning that initially manifested during the
development period.” (Doc. No. 10 at 27).
also appears to agree that Plaintiff met Listing 12.05C's
requirement that there be another physical or mental
impairment that imposes a significant limitation. The ALJ
specifically found that Plaintiff had impairments, including
“right carpal tunnel syndrome, ”
“obesity” and “depressive disorder.”
(Id. at 17). In the ALJ's opinion “these
impairments are severe because they cause more than a minimal
effect on the claimant's ability to work.”
(Id.); see, Marsh, 438 F.3d at 900
(collecting cases for the proposition that a “claimant
has a physical or other mental impairment imposing an
additional and significant work-related limitation of
function” when it has “‘more than slight or
minimal' effect on the ability to perform work”).
Plaintiff's claim faltered, according to the ALJ, was at
the second prong of the analysis. In this regard, the ALJ
wrote that “both 12.05(b) and 12.05(c) require
valid IQ scores, ” and “the absence of
such valid scores does not satisfy the ...