                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-4142
                                   ___________

Douglas A. Maresh,                    *
                                      *
            Appellant,                *
                                      * Appeal from the United States
     v.                               * District Court for the Southern
                                      * District of Iowa.
Jo Anne B. Barnhart,                  *
Commissioner of Social Security,      *
                                      *
            Appellee.                 *
                                 ___________

                             Submitted: September 13, 2005
                                Filed: December 6, 2005
                                 ___________

Before BENTON, LAY, and MELLOY, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       The district court affirmed the decision that Douglas A. Maresh is not entitled
to disability-insurance benefits and supplemental-security income because he has the
capacity to work. Maresh appeals. Because he meets Listing 12.05C, this court
reverses and remands with directions to award benefits.
                                           I.


       This court reviews de novo a district court's denial of social security benefits.
See Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). This court determines "whether
the Commissioner's decision is supported by substantial evidence in the record as a
whole." Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). Substantial evidence "is
less than a preponderance, but is enough that a reasonable mind would find it adequate
to support the Commissioner's conclusion." McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000). This court will "consider evidence that detracts from the
Commissioner's decision as well as evidence that supports it." Id.


      Maresh argues that the ALJ erred in finding that his impairments do not meet
Listing 12.05:


      Mental retardation: 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.


     Maresh and the Commissioner disagree about what the Listing requires.
According to the Commissioner, the introductory paragraph of the Listing requires


                                          -2-
that the deficits in adaptive functioning are initially manifested before age 22.
According to Maresh, the introductory paragraph is merely an introduction that sets
no requirements. Under Maresh's interpretation, he need only meet part C's
requirements of (1) an IQ score of 60 through 70; and (2) an additional and significant
work-related limitation of function.


       This court agrees with the Commissioner that the requirements in the
introductory paragraph are mandatory. The overall introduction to the mental
disorders section states: "Listing 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 § 12.00.1 The cases Maresh cites are not to
the contrary, because they do not discuss whether the introductory paragraph is
mandatory. See Chunn v. Barnhart, 397 F.3d 667 (8th Cir. 2005); Jones v.
Barnhart, 335 F.3d 697 (8th Cir. 2003); Sird v. Chater, 105 F.3d 401 (8th Cir. 1997).
Under the plain language of the regulations, a claimant must demonstrate or support
onset of the impairment before age 22.


      However, this court disagrees with the Commissioner that the Listing's
introductory paragraph requires a formal diagnosis of mental retardation. The plain
language of the Listing does not so state, and the Commissioner cites no supporting


      1
       Maresh argues that this court should apply the version of the regulations in
effect before their amendment in 2000, see 65 Fed. Reg. 50,746-01. However,
Maresh's hearing did not take place until 2002—after the regulations were amended.
See Russell v. Chater, 91 F.3d 63, 65 n.1 (8th Cir. 1996) (per curiam) (declining to
consider amendments to the Social Security Act not in effect at the time of the
claimant's hearing).


                                         -3-
authority. This court also rejects the Commissioner's assertion that Maresh is not
entitled to benefits, applying the definition of mental retardation in the Diagnostic and
Statistical Manual of Mental Disorders–Fourth Edition (DSM-IV). In revising the
Listings of Impairments in 2002, the Commissioner rejected a proposal that the DSM's
definition be used for Listing 12.05. See 67 Fed. Reg. 20,022.


       In sum, to meet Listing 12.05C, a claimant must show: (1) a valid verbal,
performance, or full scale IQ of 60 through 70; (2) an onset of the impairment before
age 22; and (3) a physical or other mental impairment imposing an additional and
significant work-related limitation of function. Because the Commissioner does not
contest that Maresh meets the first requirement, this court focuses on requirements 2
and 3.


       Although the ALJ did not address the issue, the record indicates that Maresh's
mental retardation initially manifested itself before age 22. Maresh struggled in
special education classes through the ninth grade, and then dropped out of school.
The Commissioner concedes that Maresh had trouble with reading, writing, and math.
In addition, Maresh emphasizes his verbal IQ score of 70, recorded at age 37. True,
the score was recorded after the developmental period, but "a person's IQ is presumed
to remain stable over time in the absence of any evidence of a change in a claimant's
intellectual functioning." Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001); see also
65 Fed. Reg. 50,753 (2000) (explaining that the regulations "permit us to use
judgment, based on current evidence, to infer when the impairment began.")
(emphasis added). Maresh also exhibited deficits in adaptive functioning at a young
age, when he had frequent fights with other children. Based on the substantial
evidence, the ALJ should have found that Maresh's impairment manifested itself
during his developmental period.




                                          -4-
       The third requirement of Listing 12.05C is that the claimant has a physical or
other mental impairment imposing an additional and significant work-related
limitation of function, i.e., a "more than slight or minimal" effect on the ability to
perform work. Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (quoting Cook
v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986)). Although the ALJ did not specifically
discuss Listing 12.05C, she did find that Maresh's personality disorder was "severe."
That finding is well supported by the record. Dr. Hammer, a licensed psychologist
who examined Maresh in January 1998, states:


      [Maresh's work history] is marked with short couple of weeks of
      employment terminated because of difficulties with supervisors, co-
      workers, or his temper.
      ....
      He reports a suspiciousness and distrust of others "all" his life. He
      doubts the trustworthiness of friends, is reluctant to confide in others,
      misinterprets benign remarks, is unforgiving and persistently carries
      grudges, and overreacts to benign comments with angry counterattacks.
      ....
      His greater difficulties . . . will be found in his demonstrated inability to
      get along with others, be they supervisors, co-workers, or the public.
      Also, his lack of impulse controls will interfere with his ability to
      exercise good judgment and his ability to appropriately adapt to changes
      in the work place.

In a separate evaluation, psychologist Dr. James N. Marchman diagnosed Maresh with
personality disorder, and noted that he "interacts poorly with supervisors, coworkers,
and the public." The findings of Drs. Hamer and Maresh demonstrate that Maresh's
personality disorder would have more than a slight or minimal effect on his ability to
work. See Bailey v. Apfel, 230 F.3d 1063, 1066 (8th Cir. 2000) (speech disorder was
more than slight or minimal because speech was "noticeably in error," albeit
intelligible.)


                                          -5-
       True, clinical psychologist Dr. Dee E. Wright completed a medical summary
form asserting that Maresh's functional limitations do not satisfy Listing 12.05.
However, Dr. Wright did not examine Maresh, but only reviewed his medical records.
Further, Dr. Wright's report does not support her conclusion. She indicates that
Maresh has "[p]athologically inappropriate suspiciousness or hostility" as well as
"[i]ntense and unstable personal relationships and impulsive and damaging behavior."
Dr. Wright also records that Maresh would have "moderate" difficulties in maintaining
social functioning, as well as "moderate" deficiencies of concentration, persistence or
pace resulting in failure to complete tasks in a timely manner. She further notes that
Maresh is moderately limited in the ability to work in coordination with or proximity
to others without being distracted. Dr. Wright's specific observations contradict her
general conclusion that Maresh does not meet Listing 12.05.


       Additional evidence confirms that Maresh's personality disorder satisfies the
Listing. Maresh reported to his physician in 1998 that his neighbors had called the
police after he became upset and began destroying his own car. He further reported
homicidal thoughts about his father, and that Maresh once waited on the porch with
a shotgun after becoming upset with another man. Maresh's clinical social worker
also reported that he "has one of the most disabling personality disorders I have seen
in my eleven years at the mental health center." In sum, Maresh has shown that his
personality disorder would have more than a "slight or minimal" effect on his ability
to work. Buckner, 213 F.3d at 1011. Accordingly, he meets Listing 12.05C. See
Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (reversing denial of benefits
because substantial evidence showed that claimant met Listing 12.05C).




                                         -6-
                                           II.


        The Commissioner argues that Maresh's mental retardation does not preclude
him from working, noting he worked for General Mills for about a year and a half in
2000 and 2001, although he often missed work there.2 However, "[t]he issue is not
whether the claimant can perform gainful activity; rather, it is whether he has a[n] .
. . impairment, other than his conceded mental impairment, which provides significant
work-related limited function—in other words, whether the second prong of §
12.05(C) is met." Sird, 105 F.3d at 403 (reversing ALJ's denial of benefits for a
claimant who met Listing 12.05C). Because Maresh meets Listing 12.05C, he is
entitled to benefits. See Jones, 335 F.3d at 699 ("If the claimant wins at the third step
(a listed impairment), she must be held disabled, and the case is over.")


                                          III.


       The ALJ's decision to deny benefits is not supported by substantial evidence on
the record. The district court's judgment is reversed, and the case remanded to the
Commissioner with directions to award benefits.


                        ______________________________




      2
      Maresh testified that he often missed work at General Mills, in part due to his
mental impairments. General Mills reported that, relative to its other employees,
Maresh's absences were "frequent." As the vocational expert testified, such absences
would preclude employment.

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