                              UNPUBLISHED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Remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            6
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

                                                  7
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

                                                 8
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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