UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2226
SYLVIA JACKSON,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, at Office of Disability Adjudication
(Administrative Law Judges),
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cv-00193-RJC-DCK)
Argued: December 6, 2011 Decided: February 23, 2012
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Remanded by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge Keenan joined.
ARGUED: Hannah Rogers Metcalfe, HANNAH ROGERS METCALFE, PA,
Greenville, South Carolina, for Appellant. Lisa G. Smoller,
SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for
Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney,
Jennifer A. Youngs, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
In 2004, Sylvia Jackson filed an application for
supplemental security income (“SSI”). Jackson suffers from a
number of mental and physical impairments, including major
depression disorder and diminished intellectual functioning.
After her claim was denied by the commissioner of the Social
Security Administration, Jackson requested a hearing before the
Administrative Law Court. The administrative law judge (“ALJ”)
denied her claim, and the Appeals Council likewise denied her
request for review. Having exhausted her administrative
remedies, Jackson filed a civil action pursuant to 42 U.S.C.
§ 405(g). The district court adopted the magistrate judge’s
recommendation to affirm the commissioner’s denial of Jackson’s
application for SSI. Jackson now appeals the district court’s
order affirming the commissioner’s final decision. For the
reasons that follow, we find that Jackson is entitled to a
sentence six remand. See 42 U.S.C. § 405(g) (“The court may
. . . at any time order additional evidence be taken before the
Secretary . . . upon a showing that there is new evidence which
is material. . . .”).
I.
Judicial review of the commissioner’s decision is governed
by 42 U.S.C. § 405(g). Johnson v. Barnhart, 434 F.3d 650, 653
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(4th Cir. 2005) (per curiam). When reviewing a denial of
benefits, this Court must accept the commissioner’s findings of
fact if they are supported by substantial evidence and if they
were reached by applying the correct legal standard. Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). A finding is
supported by substantial evidence if it is based on “relevant
evidence [that] a reasonable mind might accept as adequate to
support a conclusion.” Johnson, 434 F.3d at 653. As we have
explained, substantial evidence requires more than a scintilla,
but less than a preponderance, of the evidence. Mastro v.
Apfel, 270 F.3d 171, 176 (4th Cir. 2001). If “conflicting
evidence allows reasonable minds to differ as to whether a
claimant is disabled,” the Court defers to the commissioner’s
decision. Johnson, 434 F.3d at 653.
II.
The commissioner uses a five-step process to evaluate
disability claims. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). Under this process, the commissioner asks, in
sequence, whether the applicant (1) is performing substantial
gainful activity; (2) has a severe impairment; (3) has an
impairment that meets or equals the requirements of a listed
impairment; (4) is capable of performing her past relevant work;
and (5) is capable of adjusting to other work that is available
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in significant numbers in the national economy. See 20 C.F.R.
§ 416.920(a)(4). The claimant has the burden of production and
proof in steps 1-4. See Hunter v. Sullivan, 993 F.2d 31, 35
(4th Cir. 1992) (per curiam). At step 5, however, the burden
shifts to the commissioner “to produce evidence that other jobs
exist in the national economy that the claimant can perform
considering h[er] age, education, and work experience.” Id. If
a determination of disability can be made at any step, the
Commissioner need not analyze subsequent steps. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
At steps 1 and 2, the ALJ found that Jackson had not
engaged in substantial gainful activity since the date of her
application for SSI and that she suffered from severe
impairments, including depression and diminished intellectual
functioning. At step 3, the ALJ found that Jackson did not have
an impairment that met or equaled one of the listed impairments
found at 20 C.F.R. Pt. 404, Subpt. P, App’x 1. Finally, at
steps 4 and 5, the ALJ found that Jackson could return to her
past work as a housekeeper and that other jobs existed in the
national economy that she could perform. Based on these
findings, the ALJ denied her application for SSI, concluding
that she was not disabled within the meaning of the Social
Security Act.
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The only issue on appeal is whether the ALJ properly
evaluated Jackson’s case at the third step, which requires the
ALJ to identify the relevant listed impairments and compare the
listing criteria with the evidence of the plaintiff’s symptoms.
As grounds for reversal, Jackson argues that the ALJ erred by
concluding that her level of cognitive functioning did not meet
or equal the listed impairment for mental retardation, detailed
in Listing 12.05. Listing 12.05 requires a showing of “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’x 1, § 12.05. Listing 12.05 also requires
the satisfaction of one of four additional requirements
identified as Requirements A-D. At issue in this case was
Requirement C, which requires “[a] valid verbal, performance, or
full scale IQ of 60 through 70,” as well as “a physical or other
mental impairment imposing an additional and significant work-
related limitation of function.”
The ALJ found that Jackson did not establish any of the
impairments listed in Appendix 1, including Listing 12.05C.
Jackson argues that the ALJ erred with regard to this finding by
(1) discrediting Jackson’s IQ scores without sufficient
explanation, (2) ignoring substantial evidence indicating that
Jackson currently exhibits deficits in adaptive functioning and
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exhibited these deficits during her development period, and (3)
improperly relying on work history at the third step to deny
benefits. We now consider whether substantial evidence existed
to support the ALJ’s findings with respect to Listing 12.05C.
III.
The record contains undisputed evidence that Jackson’s IQ
scores are within the 60 to 70 range as required for the first
prong of Listing 12.05C. In an effort to satisfy this first
prong, Jackson submitted intelligence testing from a 2004 court-
ordered psychological evaluation. The examiner, Mr. Nunez,
reported that Jackson had a verbal IQ of 60, a performance IQ of
73, and a full scale IQ of 65. In addition, school records from
Jackson’s childhood indicate a verbal IQ score of 67.
Jackson also satisfied the second prong of Listing 12.05C,
presence of a “physical or other mental impairment imposing an
additional and significant work-related limitation of function.”
20 C.F.R. Pt. 404, Subpt. P., App’x 1, § 12.05. The ALJ
determined that Jackson suffers from severe impairments of
depression and diminished intellectual function. Moreover, the
evidence in the record reveals that Jackson has been diagnosed
by a number of clinicians as suffering from (1) major depressive
disorder with psychotic symptoms, (2) psychosis, (3) anxiety
disorder, and (4) personality disorder. The record is also
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filled with evidence of Jackson’s significant, work-related
limitations including marked restriction of daily-living
activities, and difficulties in maintaining social function,
concentration, persistence, and pace.
To the extent that the ALJ based its determination on a
failure to satisfy the first two prongs of Listing 12.05C -- the
IQ-score requirement and the presence of another impairment –-
such a decision was not supported by substantial evidence. As
such, we are left to determine whether substantial evidence
supports the finding that Jackson has failed to establish the
final deficits-in-adaptive-behavior requirement.
Deficits in adaptive functioning can include limitations in
areas such as communication, self-care, home living,
social/interpersonal skills, use of community resources, self-
direction, functional academic skills, work, leisure, health,
and safety. Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002).
In support of this prong, Jackson submitted evidence that
she has deficiencies in the areas of functional academic skills,
social/interpersonal skills and communication, self-care,
safety, and health. With respect to the area of functional
academic skills, Jackson testified that she was in special needs
classes, that she dropped out of school in the tenth grade, and
that she has been unable to obtain her GED. Moreover, she reads
at a sixth-grade level, and her cognitive functioning has been
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evaluated as within the “mildly mentally retarded range of
intellectual functioning.”
In this case, the ALJ found no evidence of deficits in
Jackson’s adaptive functioning on the grounds that there was no
documentation to support her testimony that she was in special
education classes and that it found her testimony on the matter
to be incredible. Jackson argues that this finding is not
supported by substantial evidence in the record and that
evidence submitted to the Appeals Council further contradicts
this finding.
During the ALJ proceeding, Jackson’s representative
requested an extension of time to submit additional evidence in
support of these allegations, but was unable to obtain Jackson’s
school records prior to the ALJ ruling because of the age of the
records. When Jackson did ultimately retrieve the report of the
special education review committee, she submitted a copy to the
Appeals Council. These school records from the Freeport Public
School District indicate that Jackson was identified as a
special needs student as early as the seventh grade. What is
more, they demonstrate that further academic testing during that
time showed Jackson to be severely deficient in her intellectual
abilities, and in particular, reported her as having a verbal IQ
of 67. While the Appeals Council acknowledged receipt of the
records, it did not provide any explanation for discounting the
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records apart from summarily stating that it “found that this
information does not provide a basis for changing the
Administrative Law Judge’s decision.”
Not only did these forms provide documentation that the
ALJ’s decision was lacking and eliminate the ALJ’s very reason
for denying Jackson’s claim, they also reinforced the
credibility of Jackson’s testimony. Moreover, information
reflected in the school record is directly material to the final
prong of Listing 12.05C -- the question of whether Jackson
suffered “significantly subaverage general intellectual
functioning with deficits in adaptive behavior initially
manifested during the developmental period . . . before age 22.”
20 C.F.R. Pt. 404, Subpt. P., App’x 1, § 12.05. We cannot say
that substantial evidence supports the finding that Jackson
failed to establish this prong where new and material evidence
submitted to the Appeals Council contradicts both the ALJ’s
findings and underlying reasoning, and the Appeals Council
failed to provide any reason for disregarding this additional
evidence. In this situation, our proper disposition is to
remand pursuant to sentence six of § 405(g) which authorizes a
remand upon a showing of new material evidence. 42 U.S.C.
405(g).
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IV.
For the reasons above, we remand the case for consideration
of the new and material evidence.
REMANDED
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