
    Allen D. SOVERNS, Sr., Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
    No. 06-4035-RDR.
    United States District Court, D. Kansas.
    Aug. 8, 2007.
    
      Patrick H. Donahue, Midland Professional Associates, Lawrence, KS, for Plaintiff.
    Tanya S. Wilson, Office of United States Attorney, Topeka, KS, for Defendant.
    
      
      . On Feb. 12, 2007, Michael J. Astrue was sworn in as Commissioner of Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Mr. Astrue is substituted for Commissioner Jo Anne B. Barnhart as the defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
    
   MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a social security action where plaintiff seeks review of the final decision of the Commissioner of Social Security denying disability insurance benefits and supplemental security income. This matter was referred to Magistrate Judge Reid for a report and recommendation. On June 22, 2007 the report and recommendation was filed with the court. The government has filed objections and the plaintiff has responded. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.

I.

Following denial of his applications for disability insurance benefits and supplemental security income, plaintiff requested and received a hearing before an administrative law judge (ALJ). The ALJ determined that plaintiff suffered from a combination of impairments that were severe but did not meet or equal the severity of any impairment in the Listing of Impairments. The ALJ found that plaintiff was able to perform his past work as a security guard. He further found, in the alternative, that plaintiff was able to perform other work existing in significant numbers in the national economy. In sum, he concluded that plaintiff was not disabled.

Plaintiff requested review of the ALJ’s decision and submitted additional medical evidence to the Appeals Council. The additional evidence was received and considered, but the Appeals Council denied plaintiffs request for review.

In his report and recommendation, Magistrate Reid focused on the new evidence presented to the Appeals Council. He found that the new evidence, which showed that plaintiff had an IQ of 67, established a reasonable possibility that plaintiffs condition met or equaled Listing 12.05(C). He further determined that the Commissioner had not developed the record to ascertain the full extent of plaintiffs condition with regard to the criteria of the listing, and did not explain why he found that plaintiff did not meet or equal the severity of the listing. Accordingly, he recommended that the Commissioner’s decision be reversed and remanded to properly evaluate the severity of plaintiffs mental impairment with regard to Listing 12.05(C).

The government objected to the magistrate’s report and recommendation. The government contended that the magistrate had failed to require plaintiff to satisfy his burden of proof and failed to apply the deferential substantial evidence standard of review. The government suggested that the evidence submitted to the Appeals Council supported the ALJ’s finding that plaintiff did not meet Listing 12.05(C).

II.

“De novo review is statutorily and constitutionally required when written objections to a magistrate’s report are timely filed with the district court.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.1991) (citations omitted). Those parts of the report and recommendation to which there has been no objection are taken as true and judged on the applicable law. See Campbell v. United, States District Court for the Northern District of California, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974).

The district court has considerable judicial discretion in choosing what reliance to place on the magistrate’s findings and recommendations. See Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir.1991). When review is de novo, the district is “ ‘free to follow ... or wholly ignore’ ” the magistrate judge’s recommendation, but it “ ‘should make an independent determination of the issues’ ” without giving “ ‘any special weight to the prior’ ” recommendation. Id. at 1170 (quoting Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir.1988)). In short, the district court may accept, reject, or modify the magistrate’s findings, or recommit the matter to the magistrate with instructions. See 28 U.S.C. § 636(b)(1)(C).

“We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.2005). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It requires more than a scintilla, but less than a preponderance. Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.2004). “We consider whether the ALJ followed the ‘specific rules of law that must be followed in weighing particular types of evidence in disability cases,’ but we will not reweigh the evidence or substitute our judgment for the Commissioner’s.” Hack-ett, 395 F.3d at 1172 (internal citations omitted).

III.

The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months....” 42 U.S.C. §§ 423(d)(1)(A), 1382e(a)(3)(A) (2004); Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988). This twelve-month duration requirement applies to the claimant’s inability to engage in any substantial gainful activity, and not just his underlying impairment. Barnhart v. Walton, 535 U.S. 212, 218-19, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002).

“The Commissioner is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled.” Hackett, 395 F.3d at 1171. “The claimant bears the burden of establishing a prima facie case of disability at steps one through four.” Id. Step one requires the claimant to demonstrate “that he is not presently engaged in substantial gainful activity.” Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.2005). At step two, the claimant must show “that he has a medically severe impairment or combination of impairments.” Id. At step three, if a claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled and entitled to benefits. Williams, 844 F.2d at 751. If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show “that the impairment or combination of impairments prevents him from performing his past work.” Grogan, 399 F.3d at 1261.

“If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy, given her age, education, and work experience.” Hackett, 395 F.3d at 1171. “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Williams, 844 F.2d at 750.

At step three, the determination is made “whether the impairment is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Williams, 844 F.2d at 751; 20 C.F.R. §§ 416.920(d), 404.1520a(d). “If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits.” Williams, 844 F.2d at 751. To show that an impairment or combination of impairments meets the requirements of a listing, a claimant must provide specific medical findings that support each of the various requisite criteria for the impairment. See 20 C.F.R. §§ 404.1525, 416.925 (2006).

Listing 12.05, the listing category for mental retardation, begins with an introductory paragraph, which states that “[m]ental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. The listing further provides that the “required level of severity for this disorder is met when the requirements in A, B, C or D are satisfied.” Id. Subsection C requires a claimant demonstrate “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.” Id. at § 12.05(C). Section 12.00A states in pertinent part that “[ljisting 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.” Id. at § 12.00A (emphasis added).

A claimant’s burden under Listing 12.05(C) is twofold: “[a] valid verbal, performance, or full scale IQ of 60 through 70;” and (2) “a physical or other mental impairment imposing additional and significant work-related limitation of function.” See Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir.1997).

IV.

Here, there is no dispute that plaintiff met the aforementioned requirements. Moreover, there is no dispute that the ALJ failed to discuss the application of Listing 12.05(C). Concerning mental impairments, he noted only that plaintiff failed to meet the criteria under Listing 12.01. The ALJ failed to develop the record concern-, ing the application of- Listing 12.05(C). The Appeals Council accepted the new evidence offered by the plaintiff on review and affirmed the ALJ without any additional discussion of Listing 12.05(C).

This case has substantial similarities to Peck v. Barnhart, 214 Fed.Appx. 730 (10th Cir.2006). In Peck, plaintiff presented evidence she had an IQ of 70 and suffered from other severe physical impairments. 214 Fed.Appx. at 734. Nevertheless, the ALJ failed to consider the application of Listing 12.05(C). On appeal, plaintiff argued that she was entitled to disability benefits because she met the requirements of Listing 12.05(C). The Commissioner contended plaintiff had failed to meet her burden under Listing 12.05(C) because there was no evidence that plaintiff met the capsule definition of mental retardation. Id. at 736. The Tenth Circuit rejected that argument because the ALJ had not reached any determination on whether plaintiff met the capsule definition. Id. The Court stated: .

The Commissioner’s argument ignores our ruling in Clifton [v. Chater, 79 F.3d 1007 (10th Cir.1996).] where we held we can only review ALJ decisions that make specific findings on the facts of the case. See 79 F.3d at 1009-10. If Peck does not meet the capsule definition, then the ALJ must make that determination in the first instance.

Id,

The Commissioner in Peck argued in the alternative that the ALJ’s failure to make findings on Listing 12.05(C) was harmless error because the evidence showed conclusively .that plaintiff did not indicate the presence of deficits in adaptive functioning before the age of 22. Id. The Tenth Circuit also rejected this argument, concluding that the ALJ had made no findings on mental retardation and, therefore, remand was necessary. Id. at 736-37.

. The court is faced with a situation much like that in Peck. The ALJ failed to make any findings concerning mental retardation. The facts cited by the Commissioner, much like those raised in Peck, may cut against a finding that plaintiff satisfied the capsule definition, but they by no means conclusively resolve the question one way or the other. There is some evidence in the record pointing to deficits in adaptive functioning by plaintiff before the age of 22, although the court recognizes that it is limited. The record reflects that plaintiff had “trouble staying in school.” He only attended school until the tenth grade. He then joined the military and “could not adjust.” He was released early from his commitment. He was married when he was young but the marriage was very brief. He also had a history of alcohol abuse when he was young. With this evidence and the failure of the ALJ to produce any discussion or findings on Listing 12.05(C) or to develop the record on this issue, we must conclude that remand is necessary so the ALJ can determine whether plaintiff has an impairment that meets or equals Listing 12.05(C). Accordingly, we shall overrule and deny the objections filed by the Commissioner and affirm the report and recommendation of the magistrate.

IT IS THEREFORE ORDERED that the objection to the magistrate’s report and recommendation is denied. The magistrate’s report and recommendation is-hereby affirmed and the Commissioner’s decision is reversed and remanded. Judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) remanding the case to the Commissioner for further proceedings in accordance with this opinion.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

REID, United States Magistrate Judge.

Plaintiff seeks review of a final decision of the Commissioner of Social Security (hereinafter Commissioner) denying disability insurance benefits and supplemental security income under sections 216(i), 223, 1602 and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A)(hereinafter the Act). The matter has been referred to this court for a report and recommendation. The court recommends the Commissioner’s decision be REVERSED and JUDGMENT be entered REMANDING the case for further proceedings.

I. Background

Plaintiffs applications for disability insurance benefits (DIB) and supplemental security -income (SSI) were denied initially and upon reconsideration. (R. 21, 34, 38, 542, 543). Plaintiff requested, and a hearing at which plaintiff was represented by counsel was held before an Administrative Law Judge (ALJ) on Nov. 4, 2004. (R. 21, 62-63, 630-61). Plaintiff appeared and testified at the hearing. (R. 21, 631, 636-60). At the hearing, plaintiff amended his alleged disability onset date to Sept. 11, 2000. (R. 21, 644). He alleged he was disabled by a combination of physical and mental impairments. (R. 633).

The ALJ determined plaintiff has impairments consisting of obesity, degenerative joint disease of the right knee, diabetes mellitus, degenerative disc disease of the lumbar spine, carpal tunnel syndrome of the left wrist, and depression, the combination of which are severe but which do not meet or equal the severity of any impairment in the Listing of Impairments. (R. 81). The ALJ determined plaintiffs allegations are only partly credible and that he has the residual functional capacity (RFC) for a range of sedentary work. (R. 31). Therefore, the ALJ found plaintiff is able to perform “his past work as a security guard, both as he performed it, and as customarily performed in the national economy.” (R. 31). Alternatively, he evaluated plaintiffs RFC, age, education, and work experience, and found plaintiff is able to perform other work existing in significant numbers in the national economy. (R. 32). Therefore, he determined plaintiff is “not disabled” within the meaning of the Act, and denied his applications. (R. 32).

Plaintiff requested review of the ALJ’s decision and submitted additional medical evidence to the Appeals Council. (R. 16-17, 552-629). The additional evidence was received and made a part of the administrative record by the Council. (R. 11). The Appeals Council considered the new evidence but denied plaintiffs request for review. (R. 7-10). Therefore, the ALJ’s decision is the final decision of the Commissioner. (R. 7); Threet v. Barnhart, 353 F.3d 1185, 1187 (10th Cir.2003). Plaintiff now seeks judicial review.

II. Legal Standard

The court’s review is guided by the Act. 42 U.S.C. §§ 405(g), 1383(c)(3). Section 405(g) provides, “The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” The court must determine whether the factual findings are supported by substantial evidence in the record and whether the ALJ applied the correct legal standard. White v. Barnhart, 287 F.3d 903, 905 (10th Cir.2001). Substantial evidence is more than a scintilla, but less than a preponderance, it is such evidence as a reasonable mind might accept to support the conclusion. Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.1988). The court may “neither reweigh the evidence nor substitute [it’s] judgment for that of the agency.” White, 287 F.3d at 905 (quoting Casias v. See’y of Health & Human Serv., 933 F.2d 799, 800 (10th Cir.1991)). The determination of whether substantial evidence supports the Commissioner’s decision, however, is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989).

An individual is under a disability only if that individual can establish that he has a physical or mental impairment which prevents him from engaging in substantial gainful activity and is expected to result in death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d); see also, Barnhart v. Walton, 535 U.S. 212, 217-22, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002)(both impairment and inability to work must last twelve months). The claimant’s impairments must be of such severity that he is not only unable to perform his past relevant work, but cannot, considering his age, education, and work experience, engage in any other substantial gainful work existing in the national economy. Id.; 20 C.F.R. §§ 404.1520, 416.920 (2004). '

The, Commissioner has established a five-step sequential process to, evaluate whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.2004); Ray, 865 F.2d at 224. “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988).

In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether he has severe impairments, and whether the severity of his impairments meets or equals the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Id. at 750-51. If claimant’s impairments do not meet or equal the severity of a listed impairment, the Commissioner assesses claimant’s RFC. 20 C.F.R. §§ 404.1520, 416.920. This assessment is used at both step four and step five of the process. Id.

After assessing claimant’s RFC, the Commissioner evaluates steps four and five, whether the claimant can perform his past relevant work, and whether he is able to perform other work in the economy. Williams, 844 F.2d at 751. In steps one through four the burden is on claimant to prove a disability that prevents performance of past relevant work. Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir.2001); Williams, 844 F.2d at 751 n. 2. At step five, the burden shifts to the Commissioner to show other jobs in the economy within plaintiffs capacity. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir.1999).

Plaintiff claims two errors in the ALJ’s decision. He claims the new evidence presented to the Appeals Council establishes that his condition meets Listing 12.05(C) and the ALJ failed in his duty to develop the record regarding that listing; and he claims the ALJ erred in evaluating step four of the sequential process and finding that plaintiff is able to perform his past relevant work as a security guard. The Commissioner argues that any error in the step four determination is rendered harmless by the ALJ’s further application of the sequential process and his step five finding that plaintiff is capable of other work in the economy. He argues there is no error in the step three determination because plaintiff does not present evidence that he has significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested before age twenty-two (Comm’r Br., 8), because the Appeals Council “considered the newly submitted evidence but determined that the evidence did not provide a basis for changing the ALJ’s decision” (Comm’r Br., 9), and because substantial evidence in the record supports the ALJ’s step three findings. (Comm’r Br., 9-10).

Because the court finds error in the step three determination regarding Listing 12.05(C), it recommends remand and will not specifically address plaintiffs arguments regarding step four. Nonetheless, the court would caution the Commissioner that the Tenth Circuit has given detailed instruction regarding application of the step four inquiry; Winfrey v. Chater, 92 F.3d, 1017, 1023-26 (1996); and regarding application of the Medical-Vocational Guidelines where plaintiff has both exer-tional and nonexertional limitations on his capabilities. Channel v. Heckler, 747 F.2d 577, 579-83 (10th Cir.1984). If, on remand, this case proceeds beyond the third step of the sequential evaluation process, the Commissioner would be well-advised to apply the Act and regulations as interpreted by the Tenth Circuit to his step four and step five evaluations.

III. Evidence Submitted to the Appeals Council

The regulations provide for consideration of new evidence presented to the Appeals Council.
If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.

20 C.F.R. § 404.970(b)(§ 416.1470(b) is substantially identical).

The regulations also provide that
If you submit evidence which does not relate to the period on or before the date of the administrative law judge hearing decision, the Appeals Council will return the additional evidence to you with an explanation as to why it did not accept the additional evidence and will advise you of your right to file a new application.

Id. §§ 404.976(b), 416.1476(b). Where the Appeals Council accepts the new evidence and makes it a part of the administrative record, the court interprets those facts “as an implicit determination [plaintiff] had submitted qualifying new evidence for consideration.” Martinez v. Barnhart, 444 F.3d 1201, 1207 (10th Cir.2006). Such evidence, made a part of the administrative record by the Appeals Council, will be considered by the court in its review of the Commissioner’s decision. O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994).

Here, plaintiff submitted evidence which was made a part of the administrative record by the Appeals Council. (R. 11, 552-629). Therefore, the court assumes that the evidence presented to the Appeals Council was new, material, and chronologically relevant evidence. As plaintiff points out, the evidence submitted to the Appeals Council establishes that plaintiff has an IQ of 67. (Pl.Br., 22-23)(citing (R. 564, 567, 571)).

IV. Step Three Evaluation of Listing 12.05(C)

If plaintiffs condition meets or equals the severity of a listed impairment, that impairment is conclusively presumed disabling. Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (if claimant’s impairment “meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled”). However, plaintiff “has the burden at step three of demonstrating, through medical evidence, that his impairments ‘meet all of the specified medical criteria’ contained in a particular listing.” Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar.22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (emphasis in Zebley)).

Listing 12.05 provides, in relevant part:

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.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
C. 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;

20 C.F.R., Pt. 404, Subpt. P, App. 1 § 12.05.

Listing 12.05 is somewhat different than the other listings for mental disorders. Id., § 12.00(A). The listing contains a diagnostic description of mental retardation (introductory paragraph) and four sets of criteria describing listing-level severity (Paragraphs A through D). 20 C.F.R., Pt. 404, Subpt. P, App. 1 §§ 12.00(A), 12.05(A-D). There are four distinct ways in which a claimant may establish disability pursuant to listing 12.05. Id.; McKown v. Shalala, No. 93-7000, 1993 WL 335788, *1 (10th Cir. Aug.26, 1993). To meet the listing, plaintiff must show that his condition satisfies both the diagnostic description of mental retardation and, one of the four severity criteria. Id., § 12.00(A).

The IQ scores in Listing 12.05 are based upon results of intelligence tests that have a mean of 100 and a standard deviation of 15. 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 12.00(D)(6)(c). Where an intelligence test provides verbal, performance, and full scale IQ scores, the lowest score of the three will be used when considering Listing 12.05(C). Id. If the claimant has an additional physical or mental impairments) which is “severe” within the meaning of 20 C.F.R. § 416.920(c), it will be considered to impose an additional and significant work-related limitation of function in accordance with Listing 12.05(C). 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 12.00(A); see also, Hinkle v. Apfel, 132 F.3d 1349, 1352-53 (10th Cir.1997) (reaching the same conclusion before the regulations were changed in 2000 to specify the equivalence between “severe” impairments and “additional and significant work-related limitation of function.”) Therefore, to meet Listing 12.05(C), a claimant must show: (1) evidence of onset of mental retardation before age twenty-two, (2) a valid IQ score of 60 through 70, and (3) another severe impairment.

Here, the ALJ found plaintiff has severe impairments. (R. 31). Plaintiff presents evidence of an IQ score of 67. (R. 571). The Fourth, Eighth, and Eleventh Circuits have held that IQ is relatively constant throughout life and an IQ score after age twenty-two is evidence of an individual’s IQ being the same before age twenty-two. Luckey v. Dep’t of Health & Human Serv., 890 F.2d 666 (4th Cir.1989)(“in the absence of any evidence of a change in a claimant’s intelligence functioning, it must be assumed that the claimant’s IQ had remained relatively constant”); Sird v. Chater, 105 F.3d 401 (8th Cir.1997)(citing Luckey), and Hodges v. Barnhart, 276 F.3d 1265, 1268-69 (11th Cir.2001)(adopting a presumption that IQ remains constant absent evidence of a change in intellectual functioning).

The Tenth Circuit has not addressed the issue whether mental retardation may be presumed to have manifested during the developmental period. However, it has noted that circuit courts have liberally construed the early manifestation requirement whereby a claimant “is not required to affirmatively prove that he was mentally retarded prior to reaching the age of twenty two so long as there was no evidence that claimant’s IQ had changed.” McKown v. Shalala, No. 93-7000, 1993 WL 335788, at *3 (10th Cir. Aug.26, 1993).

The Commissioner argues that the evidence presented to the Appeals Council does not establish that plaintiff has “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period” (Comm’r Br., ll)(citing Listing 12.05); because “an IQ score in the range specified by the listing does not necessarily indicate listing-level mental retardation” (Comm’r Br., 10), and because the ALJ correctly determined that plaintiff has mild restrictions in activities of daily living, moderate difficulties in both social functioning and in maintaining concentration, persistence, and pace, and no episodes of decompensation — a level of mental functioning which “is not consistent with the level of deficits in adaptive functioning required to establish mental retardation under the listing.” (Comm’r Br., 10). There are several problems with the Commissioner’s argument.

First, the Commissioner cites to no authority, medical or legal, for his assertion that mild restrictions in activities of daily living; moderate difficulties in both social functioning and in maintaining concentration, persistence, and pace; and no episodes of decompensation is a level of mental functioning which “is not consistent with the level of deficits in adaptive functioning required to establish mental retardation under the listing.” Second, the Commissioner’s argument ignores the assumption that IQ remains relatively constant throughout life, and that an IQ of 70 or less after age twenty-two is some evidence of an onset of mental retardation before age twenty-two. Finally, and perhaps most importantly, the argument fails to consider that the Commissioner’s final decision does not account for the possibility that plaintiffs condition may meet Listing 12.05(C). Neither the ALJ nor the Appeals Council provided a rationale for determining plaintiffs condition does not meet or equal Listing 12.05(C). The Appeals Council found that the additional evidence did not provide a basis for changing the ALJ’s decision. However, the “Notice of Appeals Council Action” explained only that Dr. Buss’s reports would not provide a basis for changing the ALJ’s decision, and made no mention whatever of the neu-ropsychological testing performed by the VA or the IQ score that was obtained in that testing.

The Commissioner argues that the ALJ did not fail to properly develop the record regarding IQ because “The ALJ cannot be expected to develop the record regarding impairments which are not alleged or identified in the record.” (Comm’r Br., 13). So far as it goes, the Commissioner’s argument is correct. But, the record the court must review contains evidence of plaintiffs IQ score of 67.

As the Commissioner’s argument implies, the Social Security Act places a duty on the ALJ to fully and fairly develop the record as to material issues. Baca v. Dep’t of Health & Human Serv., 5 F.3d 476, 479-80 (10th Cir.1993). The Tenth Circuit has decided the “quantum of evidence a claimant must establish of a disabling impairment or combination of impairments before the ALJ will be required to look further.” Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir.1997). Plaintiff must point to a substantial issue to be developed. Id. at 1167. “[T]he claimant has the burden to make sure there is, in the record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists. When the claimant has satisfied his or her burden in that regard, it then, and only then, becomes the responsibility of the ALJ to order a consultative examination if such an examination is necessary or helpful to resolve the issue of impairment.” Id.

Here, plaintiff points to record evidence sufficient to suggest a reasonable possibility that his condition meets or equals Listing 12.05(C). It is the Commissioner’s responsibility to develop the record, consider whether plaintiffs condition meets or equals the listing, and explain the rationale for his decision thereon. This he did not do. The Commissioner’s argument implies that plaintiff may not assert error with regard to Listing 12.05(C) either because plaintiff did not specifically make that argument to the ALJ or the Appeals Council, or because he did not present the additional evidence to the ALJ. Both arguments are foreclosed by precedent binding on this court.

The Supreme Court has ruled that a Social Security claimant need not present an issue to the Commissioner before raising that issue before the court in an action seeking judicial review of the Commissioner’s decision. Sims v. Apfel, 530 U.S. 103, 107-112, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). In a decision relying upon Sims, the Tenth Circuit has held that a plaintiff seeking review of the Commissioner’s decision need not preserve issues in the proceedings before the Commissioner or his delegates. Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir.2005). Therefore, so long as the record contains evidence suggesting a reasonable possibility plaintiffs condition meets or equals Listing 12.05(C), the duty to develop the record arises, and plaintiff need not have made that argument to the Commissioner before bringing it before this court.

With regard to the fact that evidence regarding plaintiffs IQ was not before the ALJ, that fact is irrelevant to this court’s review. Evidence presented to the Appeals Council and made a part of the Administrative Record by the Council is “part of the administrative record to be considered when evaluating the [Commissioner’s] decision for substantial evidence.” O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir.1994). In its decision in O’Dell, the court noted that, “it would be better if a claimant presented all of his or her evidence at an earlier stage in the proceeding.” Id. Nonetheless, based upon the regulations promulgated by the Commissioner, the court recognized the Commissioner had “made an administrative decision to give a claimant a last opportunity to demonstrate disability before the decision becomes final,” id (citing 20 C.F.R. § 404.970(b)), and determined that a court will consider all the evidence in the administrative record in judicial review of the Commissioner’s final decision. Id (citing 20 C.F.R. § 404.970(b)).

The evidence in the record establishes a reasonable possibility that plaintiffs condition meets or equals the severity of Listing 12.05(C). But, the Commissioner did not develop the record to ascertain the full extent of plaintiffs condition with regard to the criteria of the listing, and did not explain why he found that plaintiffs condition does not meet or equal the severity of the listing. Although the evidence presented to the Appeals Council does not establish conclusively that plaintiffs condition meets Listing 12.05(C), it meets plaintiffs step-three burden to present evidence that his condition satisfies the criteria of the listing. This error requires remand for the Commissioner to properly evaluate at step three the severity of plaintiffs mental impairment with regard to Listing 12.05(C).

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision be REVERSED and that JUDGMENT be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING this case to the Commissioner for further proceedings in accordance with this opinion.

Copies of this recommendation and report shall be delivered to counsel of record for the parties. Pursuant to 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and D. Kan. Rule 72.1.4, the parties may serve and file written objections to this recommendation within ten days after being served with a copy. Failure to timely file objections with the court will be deemed a waiver of appellate review. Hill v. Smith-Kline Beecham Corp., 393 F.3d 1111, 1114 (10th Cir.2004).

June 22, 2007.  