Craig v. Commissioner of Social Security
Filing
17
REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and this case be Remanded for an award of benefits pursuant to Sentence Fourt of 42 USC 405(g). Objections to R&R due by 12/24/2015. Signed by Magistrate Judge Karen L. Litkovitz on 12/7/2015. (art)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TERRIE CRAIG,
Plaintiff,
Case No. 1:14-cv-966
Beckwith, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
REPORT AND
RECOMMENDATION
Plaintiff Terrie Craig, brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
for judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying plaintiff’s application for Supplemental Security Income (“SSI”)
disability benefits. This matter is before the Court on plaintiff’s statement of errors (Doc. 10),
the Commissioner’s response in opposition (Doc. 15), and plaintiff’s reply memorandum (Doc.
16).
I. Procedural Background
Plaintiff was born in 1993 and was “a child under the age of 18” on January 27, 2011, the
date she applied for SSI. Plaintiff turned 18 in June 2011 and was an adult at the time of the
administrative law judge’s (“ALJ”) decision. Plaintiff alleges disability due to attention deficit
hyperactivity disorder (“ADHD”) and depression. (Tr. 176-82, 204). Plaintiff’s application was
denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted
a de novo hearing before ALJ Deborah Smith. Plaintiff appeared and testified at the ALJ
hearing. On July 25, 2013, the ALJ issued a decision denying plaintiff’s SSI application.
Plaintiff’s request for review by the Appeals Council was denied, making the decision of the ALJ
the final administrative decision of the Commissioner.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for SSI as a child under the age of 18, plaintiff must file an application and be
an “eligible individual” as defined in the Act. 42 U.S.C. § 1382(a); 20 C.F.R. § 416.202.
Eligibility is dependent upon disability, income, and other financial resources. Id. An individual
under the age of 18 is considered disabled for purposes of SSI “if that individual has a medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and 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. § 1382c(a)(3)(C)(i).
The Social Security regulations set forth a three-step sequential analysis for determining
whether a child is disabled for purposes of children’s SSI benefits:
1. Is the child is engaged in any substantial gainful activity? If so, benefits are
denied.
2. Does the child have a medically severe impairment or combination of
impairments? If not, benefits are denied.
3. Does the child’s impairment meet, medically equal, or functionally equal any in
the Listing of Impairments, Appendix I of 20 C.F.R. pt. 404, subpt. P. 20 C.F.R. §
416.924(a)? If so, benefits are granted.
20 C.F.R. § 416.924(a)-(d). An impairment which meets or medically equals the severity of a
set of criteria for an impairment in the listings, or which functionally equals a listed impairment,
causes marked and severe functional limitations. 20 C.F.R. § 416.924(d).
In determining whether a child’s impairment(s) functionally equal the listings, the
adjudicator must assess the child’s functioning in six domains:
1. Acquiring and using information;
2. Attending and completing tasks;
2
3. Interacting and relating with others;
4. Moving about and manipulating objects;
5. Caring for yourself; and
6. Heath and physical-being.
20 C.F.R. § 416.926a(b)(1)(i)-(vi). To functionally equal an impairment in the listings, an
impairment must result in “marked” limitations in two domains of functioning or an “extreme”
limitation in one domain. 20 C.F.R. § 416.926a(d). The relevant factors that will be considered
in making this evaluation are (1) how well the child initiates and sustains activities, how much
extra help she needs, and the effects of structured or supportive settings; (2) how the child
functions in school; and (3) how the child is affected by her medications or other treatment. 20
C.F.R. § 416.926a(a)(l)-(3).
An individual has a “marked” limitation when the impairment “interferes seriously with
[the] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i). A “marked” limitation is one that is “more than moderate” but “less than
extreme.” Id. An “extreme” limitation exists when the impairment “interferes very seriously
with [the] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i). Day-to-day functioning may be “very seriously limited” when only one
activity is limited by the impairment or when several activities are limited by the impairment’s
cumulative effects. Id.
If the child’s impairment meets, medically equals, or functionally equals an impairment
in the listings, and if the impairment satisfies the Act’s duration requirement, then the child is
considered disabled. 20 C.F.R. § 416.924(d)(1). If both of these requirements are not satisfied,
then the child is not considered disabled. 20 C.F.R. § 416.924(d)(2).
3
After attaining the age of 18, to qualify for SSI, a claimant must suffer from a medically
determinable physical or mental impairment that can be expected to result in death or that has
lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §
1382c(a)(3)(A). The impairment must render the claimant unable to engage in the work
previously performed or in any other substantial gainful employment that exists in the national
economy. 42 U.S.C. § 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities – the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
416.920(a)(4)(i)-(v), 416.920(b)-(g)). The claimant has the burden of proof at the first four steps
of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th
Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform
the relevant previous employment, the burden shifts to the Commissioner to show that the
4
claimant can perform other substantial gainful employment and that such employment exists in
the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] was born [in] . . . 1993 and was therefore in the “Adolescents
(age 12 to attainment of age 18)” age group on January 27, 2011, the date the
application was filed (e.g., 20 CFR 416.926a(g)(2)(v)). The [plaintiff] attained
age 18 [in] . . . 2011 (20 CFR 416.120(c)(4)).
2. The [plaintiff] has not engaged in substantial gainful activity since the date the
application was filed (20 CFR 416.924(b) and 416.972).
3. Before attaining age 18, the [plaintiff] had the following severe impairments:
attention deficit and hyperactivity disorder (ADHD); an anxiety disorder; a
personality disorder; an affective disorder; and borderline intellectual functioning
(20 CFR 416.924(c)).
4. Before attaining age 18, the [plaintiff] did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR 404, Subpart P, Appendix 1, Part A or B (20 CFR
416.920(d), 416.924, 416.925 and 416.926).
5. Before attaining age 18, the [plaintiff] did not have an impairment or
combination of impairments that functionally equaled the listings (20 CFR
416.924(d) and 416.926a).
6. Because the [plaintiff] did not have an impairment or combination of
impairments that met, medically equaled any listing or functionally equaled the
listings, the [plaintiff] was not disabled prior to attaining age 18 (20 CFR
416.924(a)).
7. The [plaintiff] has not developed any new impairment or impairments since
attaining age 18.
8. Since attaining age 18, the [plaintiff] has continued to have the same severe
impairment or combination of impairments (20 CFR 416.920(c)).
5
9. Since attaining age 18, the [plaintiff] has not had an impairment or combination
of impairments that meets or medically equals a listed impairment (20 CFR
416.920(d)).
10. After careful consideration of the entire record, the undersigned finds that,
since attaining age 18, the [plaintiff] has the residual functional capacity to
perform a full range of work at all exertional levels subject to the following nonexertional limitations. The [plaintiff] should not do a job that requires reading,
writing, or doing math. The [plaintiff] is limited to simple, routine, and repetitive
tasks without strict production quotas. The [plaintiff] similarly cannot perform
piecework, cannot work on a team, and cannot do fast paced work. The [plaintiff]
is limited to simple decision-making and use of judgment. The [plaintiff] requires
a work environment with no more than occasional changes and she should work
in only one job location. The [plaintiff] cannot have any contact with the general
public, while her contact with coworkers and supervisors must be infrequent and
minimal (no more than occasional).
11. The [plaintiff] has no past relevant work (20 CFR 416.965).
12. The [plaintiff] is currently a “younger individual age 18-44” (20 CFR
416.963).
13. The [plaintiff] has a limited education and is able to communicate in English
(20 CFR 416.964).
14. Transferability of job skills is not an issue because the [plaintiff] does not
have past relevant work (20 CFR 416.968).
15. Since attaining age 18, considering the [plaintiff]’s age, education, work
experience, and residual functional capacity, jobs have existed in significant
numbers in the national economy that the [plaintiff] has been able to perform (20
CFR 416.960(c) and 416.966). 1
16. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, since June 7, 2011, the day the [plaintiff] attained age 18, through
the date of this decision (20 CFR 416.924(a) and 416.920(g)).
(Tr. 18-37).
In determining that Plaintiff’s impairments were not functionally equivalent to a listed
impairment, the ALJ found:
1
The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform 4,600 medium, unskilled, jobs
in the regional economy, such as an industrial cleaner or a floor waxer. (Tr. 37, 67).
6
1. Before attaining age 18, [plaintiff] had less than marked limitation in acquiring
and using information. (Tr. 22-23).
2. Before attaining age 18, [plaintiff] had less than marked limitation in attending
and completing tasks. (Tr. 24-25).
3. Before attaining age 18, [plaintiff] had no more than a marked limitation in
interacting and relating to others. (Tr. 26-27).
4. Before attaining age 18, [plaintiff] had no limitation in moving about and
manipulating objects. (Tr. 27-28).
5. Before attaining age 18, [plaintiff] had no limitation in the ability to care for
herself. (Tr. 28-29).
6. Before attaining age 18, [plaintiff] had no limitation in health and physical
well-being. (Tr. 29-30).
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner’s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
7
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).
D. Educational Records and Medical Evidence
1. Educational records
In 2000 at the age of 7, plaintiff’s IQ was tested. She obtained a verbal IQ score of 71, a
performance IQ score of 91, and a full-scale IQ score of 78 on the Wechsler Intelligence Scale
for Children—Third Edition (“WISC-III”). (See Tr. 282).
In October 2003 when plaintiff was 10, IQ testing yielded a verbal score of 59, a
performance score of 79, and a full-scale score of 67 on the WISC-III. (Tr. 368). School
psychologist Kelly Pennington indicated that plaintiff’s verbal and full scale scores fell within
the intellectually deficient range of ability. (Tr. 368-69). Plaintiff’s full scale score indicated
that she was functioning at the first percentile compared to her same age peers, and her verbal
score indicated that she was functioning at the 0.3 percentile. (Id.). Wechsler Individual
Achievement Test II scores yielded “Extremely Low” scores, which placed plaintiff in the first
and less than 0.1 percentiles in relation to her peers. (Tr. 370). Plaintiff’s speech and language
skills were also assessed. Speech pathologist Michelle Law concluded that plaintiff’s social
skills were “not age appropriate,” noting that she had “difficulty with initiating communication
8
appropriately including greetings and closings, turn taking, remaining on topic, and asking/
answering questions appropriately.” (Tr. 371). Specifically, Ms. Law indicated that when asked
a question, plaintiff “responds by saying ‘I don’t know.’” (Id.).
In August 2006, school psychologist Matt Williams reviewed plaintiff’s IQ scores from
2000 and 2003 and concluded that plaintiff “will perform academically at a level significantly
below that of same-aged peers.” (Tr. 502). He opined that the IQ results “are still considered to
be an accurate measure of [plaintiff’s] intellectual functioning and performance in the
classroom” and plaintiff’s “cognitive ability will likely have an adverse effect on her academic
performance.” (Id.).
In March 2007, when plaintiff was 13 years and 8 months old and in the eighth grade, she
was administered the Woodcock-Johnson Test of Achievement (“WJTA”) and scored in the
“Very Low” range in all subject areas. (See Tr. 373-74). Specifically, she received a basic
reading score of 37, a reading comprehension score of 44, a math calculation score of 68, a math
reasoning score of 66, and a written expression score of 40. 1 (Tr. 374). These scores indicated
that she was performing at a first grade level in reading and writing and a fourth grade level in
mathematics. (See Tr. 377). Educational diagnostician Cathy Lentes administered the test and
indicated in her report that she believed the test results were “valid and reliable, as [plaintiff] put
forth sufficient effort under adequate testing conditions to assure the results obtained are an
accurate representation of her academic skill.” (Tr. 373). Ms. Lentes concluded that plaintiff’s
“academic skills, and her fluency with those skills, are negligible.” (Tr. 377). Plaintiff’s
composite scores on the Vineland Adaptive Behavior Scales (“VABS”) was in the “Moderately
1
This test has a mean score of 100 and a standard deviation of 15. (See Tr. at 373).
9
Low” range of functioning at the seventh percentile. (Tr. 381). Plaintiff received all her
academic instruction in a self-contained special education classroom setting. (Tr. 378-79).
In December 2008 when plaintiff was 15, plaintiff’s special education teacher Dawn Eick
indicated that plaintiff could not independently perform the following adaptive behavior
activities in the area of communication: (1) understand what is spoken to her; (2) deliver
messages; (3) state date of birth; (4) use irregular plurals or verbs; (5) read newspapers and
magazines; (6) write in cursive; (7) follow oral instructions; (8) relate experiences; (9) give
complex directions; (10) follow written directions; (11) write address; (12) express thoughts
orally; (13) ask for needed clarification; (14) state address or phone number; (15) read for fun;
(16) use dictionary or index or table of contents; and (17) write reports or compositions. (Tr.
508). In the area of independent functioning, Ms. Eick indicated that plaintiff could not
independently perform the following activities: (1) cover mouth and nose when sneezing; (2)
understand dangerous situations; (3) practice personal hygiene; (4) weigh self using a scale; (5)
care for hair and fingernails; (6) use cleaning supplies; (7) tell time; and (8) state current date. In
the area of socialization, Ms. Eick indicated that plaintiff could not independently perform the
following activities: (1) show interest in others’ activities; (2) apologize for mistakes; (3) use
conversational skills; (4) follow rules in games; (5) have a hobby; (6) cooperate with others she
does not like; (7) share; and (8) introduce herself to strangers. In the area of self-direction, Ms.
Eick indicated that plaintiff could not independently perform any of the listed activities, which
include the following: (1) work hard on tasks not liked; (2) complete homework; (3) keep
money in a safe place; (4) organize tasks; (5) control anger when another person breaks rules; (6)
stop fun activity cooperatively when told time is up; (7) complete tasks without needing constant
monitoring; and (8) initiate activities. Ms. Eick noted that as to many of the tasks in the
10
self-direction area, plaintiff copied the work of others. In the area of money handling and
functional math, Ms. Eick indicated that plaintiff could not independently perform the following
activities: (1) write checks; (2) count change; (3) perform basic math calculation; (4) set budget
for one week; (5) make purchases; (6) use banking facility; (7) use ruler/tape measure; (8) shop
for others; (9) balance accounts; and (10) use measuring cup. Finally, in the occupational/
employability area, Ms. Eick indicated that plaintiff could not independently perform the
following activities: (1) work cooperatively with others; (2) ask for help if needed; (3) accept
suggestions; (4) set reasonable goals; (5) be productive; (6) follow instructions; (7) be
dependable; and (8) take care of materials. Ms. Eick concluded that plaintiff had deficits in all
adaptive behavior areas assessed. (Id.).
In a March 2009 assessment, Ms. Eick indicated that plaintiff did not display the
following skills: (1) stay on task; (2) return to work if distracted; (3) locate materials; (4) begin
work promptly; (5) care for supplies; (6) ask before using another’s property; (7) complete work
on time; (8) work at a reasonable speed; (9) finish tasks without breaks; (10) not be frustrated
with new tasks; (11) solve problems; (12) check work for errors; (13) accept and follow
suggestions; (14) follow written directions; (15) ask for help; (16) work well with others; (17)
take turns; (18) use everyday manners and appropriate language; (19) set short term goals; (20)
plan activities; (21) work without having to be prompted; (22) ask for additional work; (23)
know when work is well done; (24) work to improve skills; and (25) accept praise. (Tr. 511).
Ms. Eick opined that plaintiff “will need a lot of help” to live independently as an adult. Ms.
Eick also indicated that plaintiff “needs to understand what a goal is, how to attain it, and to ask
for help,” and that “she will need help in understanding the difference between reality and how
she perceives daily situations.” (Id.).
11
Plaintiff continued to receive services and academic instruction in the special education
category of Cognitive Disability in the ninth grade. (Tr. 500). Plaintiff, who was 15 years old,
demonstrated significantly delayed cognitive and academic achievement scores which fell at a
percentile rank ranging from 10 to 0.1, indicating “severe delays.” (Tr. 501). Plaintiff
demonstrated “severe and significant deficits in adaptive behavior and communication for a
student of her age.” (Id.). Because she was struggling academically and socially in her current
classroom placement, placement in another academic environment was considered. (Id.).
Following a re-evaluation for her IEP in April 2009, plaintiff was determined to meet the
definition of a student with a disability under the category of Multiple Disabilities. 2 (Tr. 514).
In June 2010, Intervention Specialist Joyce Ritchie, plaintiff’s tenth grade teacher,
assessed that plaintiff’s skills were satisfactory in the following areas: (1) personal grooming;
(2) food preparation; (3) school related leisure; (4) crafts/hobbies/games; (5) integration with
typical peers; (6) conversation; and (7) asking for assistance and expressing needs. (Tr. 287).
However, Ms. Ritchie indicated that plaintiff needed improvement in the following areas: (1)
family life and health; (2) sight word recognition; and (3) home related leisure. Further, Ms.
Ritchie indicated that plaintiff was still learning skills in the following areas: (1) laundry and
clothing care; (2) cleaning; (3) neighborhood and community leisure; (4) shopping; (5) banking;
(6) community mobility; and (7) individual job placement. (Id.). Ms. Ritchie noted that plaintiff
was working at Good Laundry, where she was placed for one hour each school day during her
tenth grade year. (See Tr. 287, 302). Ms. Ritchie indicated that plaintiff’s
2
“Multiple Disabilities means concomitant impairments, the combination of which causes such severe educational
needs that they cannot be accommodated in special education programs solely for one of the impairments.” (Tr.
257).
12
adaptive/employability/social skills were satisfactory and opined: “[Plaintiff] has very good job
skills. She is a very good organizer and carries a task to completion.” (Tr. 288).
In the eleventh grade, as part of her IEP, plaintiff was placed in a Multiple Disabilities
(MD) classroom in another school district where she received accommodations of instruction in
a small group setting, individual one-on-one instruction, extended time on all academic
activities, and the services of a scribe. (Tr. 274-76, 294, 303, 304). Plaintiff’s Multiple
Disabilities classroom had 8 students and 2 teachers. (Tr. 218). She received specialized
instruction with an adaptive curriculum, including instruction in daily living skills and functional
academics. (Tr. 299).
The March 2011 questionnaire completed by Intervention Specialist Carolyn Kitts,
plaintiff’s eleventh grade teacher, ranked problems in functioning on a scale of one to five, with
a ranking of one representing “no problem,” and a ranking of five representing “a very serious
problem.” (See Tr. 219). In the area of acquiring and using information, Ms. Kitts indicated that
plaintiff has a very serious problem with (1) reading and comprehending written material and (2)
expressing ideas in written form. Ms. Kitts indicated that plaintiff has “a slight problem,” or a
ranking of two, with (1) understanding school and content vocabulary; (2) comprehending and
doing math problems; (3) learning new material; (4) recalling and applying previously learned
material; and (5) applying problem-solving skills in class discussions. Ms. Kitts indicated that
plaintiff has no problem with (1) comprehending oral instructions; (2) understanding and
participating in class discussions; and (3) providing organized oral explanations and adequate
descriptions. (Id.). She also reported that plaintiff was “in a self-contained classroom with 7
other students.” (Id.). She stated that plaintiff was only able to read 100 of the 230 basic sight
words and due to her inability to read, plaintiff was unable to write legible sentences. (Id.). In
13
the area of attending and completing tasks, Ms. Kitts indicated that plaintiff had no problem with
any of the listed activities except that plaintiff had a serious problem on an hourly basis (the
highest frequency an assessor could choose) with completing class/homework assignments. (Tr.
220). Ms. Kitts indicated that due to plaintiff’s inability to read, assignments must be read to her
or modified for her to understand. (Id.).
In the twelfth grade when plaintiff was 18, she continued receiving special education
instruction in the Multiple Disabilities classroom. (Tr. 351). She received the same
accommodations as in the eleventh grade. (Id.). Plaintiff’s oral reading and comprehension
were at a lower second grade level and her math computation and comprehension were at an
eighth grade level. (Tr. 346, 349, 350). She was excused from the consequences of not passing
the Ohio Graduation Test and participated by taking the “Alternate Assessment” during the
school year. (Tr. 354). School records note that plaintiff’s “curriculum is significantly altered
from her peers.” (Id.).
2. Medical evidence
In November 2006, when plaintiff was 12 years old, she was evaluated by Earl Stump,
Ph.D. (Tr. 408-11). Plaintiff reported that she had been suffering symptoms of depression and
anxiety, with auditory and visual hallucinations and panic symptoms. She had nightmares “that
won’t go away.” (Tr. 408). Plaintiff struggled with some social skills. Dr. Stump diagnosed
Depressive Disorder, NOS and rule out a Post-Traumatic Stress Disorder (PTSD). Dr. Stump
assigned a GAF score of 50. 3
3
A GAF score represents “the clinician’s judgment of the individual’s overall level of functioning.” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) (4th ed., text rev. 2000)
at 32. The GAF score is taken from the GAF scale, which “is to be rated with respect only to psychological, social,
and occupational functioning.” Id. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of
severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). Id. at 34. Individuals with GAF scores of 41 to 50 have “[s]erious symptoms (e.g.,
14
In November 2007, plaintiff was evaluated by Chantel Dearth, Ph.D., for
psychoeducational testing to assist with education planning. (Tr. 383). Plaintiff reported
ongoing difficulties with depressed affect, irritability, difficulty concentrating, difficulty learning
and understanding academic material, hearing voices, and temper outbursts. She endorsed few
friends and preferred to spend time alone, outside, or engaged with animals. (Tr. 384).
Plaintiff’s mother reported that plaintiff struggled with a learning disability since kindergarten.
Id. Plaintiff endorsed being unable to read and often feeling frustrated to the point of giving up
in the classroom. Id. Dr. Dearth administered the Stanford Binet Intelligence Scales - Fifth
Edition (“SBIS”) 4 which resulted in a full scale IQ score of 79. (Tr. 384-85). Dr. Dearth found
that the results of the current evaluation suggest plaintiff functions in the borderline to low
average range intellectually, relative to other teenagers her age. Her academic performances
were significantly below average for her age and educational level. She demonstrated particular
deficits in the areas of reading and written expression. Dr. Dearth found that plaintiff’s
endorsement of “significantly greater than average difficulties in cognitive function, academic
performance, oppositional attitudes and limit testing, family discord, psychological distress,
social withdrawal, social skills, and social awareness” was consistent with plaintiff’s prior
clinical presentation. (Tr. 386). Dr. Dearth found that plaintiff’s “affective and behavioral
symptoms [are] likely to impact her functioning in the home and school environment.” (Id.). Dr.
Dearth diagnosed plaintiff with major depressive disorder, recurrent and oppositional defiant
disorder. Dr. Dearth also indicated that plaintiff’s experience of hearing voices could suggest
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job). DSM-IV at 34.
Id.
4
Scores on the SBIS have a mean of 100 and a standard deviation of 15. (See Tr. at 384).
15
either “intrusive thoughts or early psychotic symptoms.” (Id.). Dr. Dearth noted that plaintiff
demonstrated clinical deficits in attention that are likely to further undermine her academic
performance. Dr. Dearth concluded that plaintiff “is likely to acquire new skills much more
slowly than her peers and to require greater repetition of information in order to retain
knowledge.” (Tr. 387).
Consultative examiner, Nicole A. Leisgang, Psy.D., evaluated plaintiff on July 10, 2008,
for disability purposes. (Tr. 460-65). Dr. Leisgang noted that plaintiff’s “tested academic
abilities range from the extremely low to borderline range.” (Tr. 460). Dr. Leisgang
administered the WISC-IV which resulted in a full scale IQ of 44, falling in the extremely low
range of intelligence or at about the second percentile for her age group. (Tr. 463). Dr. Leisgang
stated that “[t]est data suggests that [plaintiff] is moderately mentally retarded but emotional and
very likely motivational factors may have interfered with her performance as she appeared to be
of low to average intelligence.” (Tr. 464). Dr. Leisgang diagnosed plaintiff with ADHD and a
mood disorder and assigned a GAF score of 51. 5 (Tr. 464-65). Dr. Leisgang concluded that
plaintiff’s cognitive abilities and social/emotional patterns fall at a level that would be two-thirds
or less of what would be considered age appropriate. Her attention, concentration, persistence,
and pace in task completion fall at a level that would be one-half or less of what would be
considered age appropriate. (Tr. 465).
Plaintiff was evaluated a second time for disability purposes on April 27, 2011, by
Thomas L. Heiskell, Ph.D. (Tr. 467-74). Dr. Heiskell noted that plaintiff’s mother “described
dissociative features, but did not appear to recognize their importance.” (Tr. 468). Dr. Heiskell
5
Individuals with GAF scores of 51 to 60 have “[m]oderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” Id.
16
indicated that plaintiff “presented as an irritably distant, persistently agitated teenage girl who
continually appeared on the edge o[f] refusing to continue with the interview and testing,
tolerating both only with great difficulty.” (Tr. 469). During the examination, plaintiff “was
persistently on the edge of angry eruption, when not appearing vulnerably distant and sad.” (Id.).
Her eye contact was “both hard and vulnerable, looking sad when she didn’t adopt a protectively
hard expression.” (Id.). Plaintiff reported obsessive and compulsive symptoms and recurrent
intrusive traumatic memories or experiences. (Tr. 470). Plaintiff’s short-term memory was
poor, as she recalled only one of three words after a five minute delay and “recalled only 2 digits
forward and 2 digits in reverse, appearing to have a great deal of difficulty focusing.” (See Tr.
471-72). She “had difficulty focusing on the meaning of questions and was progressively
concrete, having difficulty giving vocabulary definitions if the word did not specifically apply to
her and she understood it.” (Tr. 472). IQ testing yielded a verbal score of 68, a perceptual
reasoning score of 65, a working memory score of 58, a processing speed score of 50, and a
full-scale score of 55 on the Wechsler Adult Intelligence Scale (“WAIS”). (Tr. 467, 471). Dr.
Heiskell opined that plaintiff’s IQ scores “are considered to be valid insofar as they represent her
current status. However her level of emotional distress was so extreme her ability to perform
cognitively was impaired. Underlying intellectual functioning likely optimally falls in the
borderline range. . . .” (Tr. 472). Dr. Heiskell assigned plaintiff a GAF score of 30 6 and
diagnosed her with PTSD, dissociative identity disorder, obsessive-compulsive disorder
(“OCD”), ADHD NOS, and personality disorder NOS—with very prominent borderline
personality disorder features. (Id.). Dr. Heiskell opined that because of her emotional distress,
6
A GAF score of 21 to 30 is indicative of behavior “considerably influenced by delusions or hallucinations OR
serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal
preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).”
DSM-IV at 34.
17
plaintiff has difficulty with carrying out basic instructions and “shows no dependable ability to
carry out multiple instructions.” (Tr. 473). Based on his examination, Dr. Heiskell opined that
plaintiff would have difficulty in maintaining attention and concentration, maintaining
persistence and pace, and performing tasks. He indicated that plaintiff “can perform tasks with
which she is familiar, such as those involved in saddling and riding a horse and caring for her
dogs,” but noted that plaintiff “had extreme difficulty completing both testing and today’s
interview, appearing consistently on the edge of losing her temper and leaving, forcing herself to
continue and being able to do so only with careful pacing.” (Id.). Dr. Heiskell noted that
plaintiff did not routinely perform significant parts of caring for her horse and that she “shows
interference from her OCD behaviors.” (Id.). Dr. Heiskell concluded that plaintiff would not be
able to respond appropriately to supervisors and coworkers because she “shows extreme hostility
and vulnerability towards others” and she “trusts almost no one and related here in a regressively
vulnerable fashion.” (Id.). Further, Dr. Heiskell opined that plaintiff “clearly would respond
very oppositionally and potentially, and likely, very aggressively to authority figures.” (Id.). Dr.
Heiskell concluded that all of plaintiff’s “symptoms and deficits lead to her having no
dependable ability to cope with normal work pressures without becoming aggressive.” (Id.).
Plaintiff received treatment from Shawnee Mental Health Center from April 2012 to
February 2013. (See Tr. 520-36). Therapist Jan Oliver reported that plaintiff’s affect was flat,
her insight and judgment were fair to poor, her behavior was restless and apathetic, her mood
was depressed and irritable, and her attention and concentration were impaired. (Tr. 533). Ms.
Oliver further indicated that plaintiff’s thought processes were somewhat slowed and
“[c]oncentration appeared decreased and questions were repeated or her mother provided the
answers.” (Id.). Ms. Oliver assigned plaintiff a GAF score of 45 and diagnosed a mood disorder
18
NOS, a sibling relational problem, and a phase of life/religious/spiritual problem. (Tr. 536). On
psychiatric examination by David Helm, M.D., plaintiff’s mood was agitated, angry, dysphoric,
and hypomanic; her affect was appropriate, exaggerated, reactive, and labile; her insight and
judgment were poor; her thought content was paranoid; and her thought processes were
appropriate, goal oriented, and sequential. (Tr. 525). Dr. Helm prescribed Depakote. (Tr. 526).
At a follow-up appointment Dr. Helm noted that plaintiff had not felt any mood quieting effects
from Depakote. (Tr. 524). Depakote was then discontinued after plaintiff became pregnant.
(See Tr. 523). Ms. Oliver reported no change in plaintiff’s mental status at follow-up therapy
sessions in January and February 2013. (Tr. 520-21).
Ms. Oliver completed a questionnaire concerning plaintiff’s mental impairments in April
2013. (Tr. 537-42). Ms. Oliver concluded that plaintiff was “unable to meet competitive
standards” in dealing with the stress of semiskilled and skilled work. (Tr. 539). Ms. Oliver
opined that plaintiff had none to mild restriction of activities of daily living, moderate difficulties
in maintaining social functioning, moderate difficulties in maintaining concentration, persistence,
or pace, and four or more episodes of decompensation within a 12-month period, each of at least
two weeks’ duration. (Tr. 540).
E. Specific Errors
On appeal, plaintiff contends the ALJ erred by failing to find that her intellectual
impairment meets or equals the requirements for an intellectual disability under Listing 112.05
for children and Listing 12.05 for adults. Plaintiff also argues that the ALJ was biased against
her application and failed to fully and fairly develop and consider the evidence; failed to properly
evaluate her credibility and symptoms; and erred at Step 5 of the sequential evaluation process
19
by finding that she could perform unskilled work in a position that requires occasional contact
with coworkers and supervisors. (Doc. 10).
The ALJ’s finding that plaintiff’s intellectual impairment does not meet or
equal the requirements for an intellectual disability under child Listing
112.05 and adult Listing 12.05 is not supported by substantial evidence.
“Intellectual disability 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. See also id. § 112.05.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal
needs (e.g., toileting, eating, dressing, or bathing) and inability to
follow directions, such that the use of standardized measures of
intellectual functioning is precluded;
B. A valid verbal, performance, or full scale IQ of 59 or less;
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;
D. A valid verbal, performance, or full scale IQ of 60 through 70,
resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
20
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. See also id. § 112.05. 7
In finding that plaintiff’s impairments did not meet or equal Listing 112.05 or 12.05, the
ALJ concluded there was no valid IQ score to satisfy the listing requirements because “there is
absolutely no reliability in the claimant’s intelligence testing, which strongly indicates that
motivational factors greatly determine test outcomes for the claimant.” (Tr. 19). Noting that
plaintiff obtained a full scale IQ of 79 on the SBIS in November 2007 and a full scale IQ of 44
on the WISC-IV in July 2008, the ALJ determined that “[t]here is no medical basis for such a
precipitous drop in test results, especially not in that short period.” (Id.). Instead, the ALJ
concluded that the lower IQ scores were attributable to “lack of effort and motivation.” (See id.).
The ALJ also found that “the examiners that documented low IQ scores refused to diagnose the
claimant with mental retardation and instead noted that she functioned within the borderline to
average range of intelligence.” (Id.). Further, the ALJ found that under Listing 12.05, “there is
effectively no change in that analysis now that the claimant has reached adulthood.” (Tr. 31).
Plaintiff argues she meets the listing requirements of significantly subaverage general
intellectual functioning and deficits in adaptive functioning before age 22, which the ALJ did not
dispute. However, plaintiff contends the ALJ erred by acting as “her own lay medical expert in
7
Listing 112.05, the listing for intellectual disability for children under 18, provides in part:
Intellectual disability: Characterized by significantly subaverage general intellectual functioning
with deficits in adaptive functioning.
The required level of severity for this disorder is met when the [following] requirements . . . are
satisfied.
....
C. A valid verbal, performance, or full scale IQ of 59 or less; or
D. A valid verbal, performance, or full scale IQ of 60 through 70, and a physical or other mental
impairment imposing an additional and significant limitation of function. . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.05C, D.
21
determining that [plaintiff’s] low [IQ] scores are unreliable.” (Doc. 10 at 15-16). Plaintiff
contends that she consistently received qualifying IQ scores below 70, receiving a full scale
score of 67 in 2003, a full scale score of 44 in 2008, and a full scale score of 55 in 2011. (Id. at
16). Plaintiff contends the ALJ’s reliance on an outlier full scale IQ score does not constitute
substantial evidence to reject the listing level IQ scores consistently found by other mental health
professionals. (Id. at 18). Plaintiff also contends the ALJ exaggerated plaintiff’s alleged “lack of
effort” in testing and the record indicates a consistent pattern of low intelligence scores on
objective testing accompanied by erratic emotional problems that interfered with her functioning.
(Id. at 16).
The Commissioner responds that the wide range in plaintiff’s IQ scores, including
“scores of 44 and 79 obtained within a matter of months of each other,” is an indication that the
lower test scores are not reliable. (Doc. 15 at 14-15). The Commissioner argues that while Dr.
Heiskell opined that the test he administered in 2011 was valid, he was not aware of plaintiff’s
previous tests in 2007 and 2008, and he declined to diagnose an intellectual disability. Rather,
Dr. Heiskell opined that plaintiff’s “intellectual functioning likely optimally falls in the
borderline range.” (Id. at 17, citing Tr. 472). The Commissioner contends that the ALJ was “not
playing doctor by summarizing and noting inconsistencies in the medical records, as well as
explaining gaps in the evidence.” (Id. at 18).
The undersigned concludes the ALJ’s determination that plaintiff does not meet or equal
Listings 12.05 and 112.05 is not supported by substantial evidence. The ALJ relied on three
factors in making this determination: the “unreliability” of the IQ test results; the perceived lack
of motivation during testing; and recent IQ scores “near the upper end of the borderline range.”
(Tr. 19). The ALJ’s reliance on these factors is without substantial support in the record.
22
For purposes of Listings 12.05 and 112.05, the Social Security regulations direct that the
lowest score of an IQ test’s multiple components be used: “[W]here verbal, performance and
full scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction with
12.05.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(D)(6)(c). See also id. §
112.00(D)(9). A good IQ test should exhibit “reliability, i.e., the consistency of results obtained
over time with the same test and the same individual.” 20 C.F.R. Part 404, Subpart P, Appendix
1, § 12.00(D)(5)(c). See also id. § 112.00(D)(8). “IQ test results must also be sufficiently
current for accurate assessment.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 112.00(D)(10).
The regulations explain:
Generally, the results of IQ tests tend to stabilize by the age of 16. Therefore, IQ
test results obtained at age 16 or older should be viewed as a valid indication of
the child’s current status, provided they are compatible with the child’s current
behavior. IQ test results obtained between ages 7 and 16 should be considered
current for 4 years when the tested IQ is less than 40, and for 2 years when the IQ
is 40 or above.
Id. “Test results obtained at younger ages are less reliable and valid than test results obtained at
older ages.” POMS § DI 24515.055(A).
Here, the record reveals that plaintiff’s IQ was tested on five occasions. First, in
September 2000 when plaintiff was 7 years old, she received a verbal score of 71, a performance
score of 91, and a full-scale score of 78 on the WISC-III. (See Tr. 282). No contemporaneous
report or discussion of these scores exists in the record.
Second, in October 2003 when plaintiff was 10, she received a verbal score of 59, a
performance score of 79, and a full-scale score of 67 on the WISC-III. (Tr. 368). School
psychologist Kelly Pennington indicated that plaintiff’s verbal and full scale scores fell within
the intellectually deficient range of ability. (Tr. 368-69). Plaintiff’s full scale score indicated
23
that she was functioning at the first percentile compared to her same age peers, and her verbal
score indicated that she was functioning at the 0.3 percentile. (Id.).
In 2006, as part of plaintiff’s IEP evaluation, school psychologist Matt Williams
reviewed the 2000 and 2003 IQ tests and opined that the tests “suggest that [plaintiff] will
perform academically at a level significantly below that of same-aged peers” and “[h]er
cognitive ability will likely have an adverse effect on her academic performance.” (Tr. 282).
Third, in November 2007 when plaintiff was 14 years and 5 months old, she obtained a
verbal IQ score of 77, a nonverbal IQ score of 83, and a full-scale IQ score of 79 on the SBIS.
(Tr. 384-85). Dr. Dearth believed that given plaintiff’s “effort and level of engagement with the
evaluation,” her findings “provide a reliable estimate of [plaintiff’s] current functioning in the
areas examined.” (Tr. 384).
Fourth, in July 2008 when plaintiff was 15 years and 1 month old, she received a verbal
comprehension score of 53, a perceptual reasoning score of 57, a working memory score of 50, a
processing speed score of 53, and a full-scale score of 44 on the WISC-IV. 8 (Tr. 460, 463). Dr.
Leisgang reported that plaintiff’s full-scale IQ score fell in the “extremely low range of
intelligence.” (Tr. 463, 465). Dr. Leisgang noted that plaintiff’s tested IQ was “significantly
lower” than that found in 2000 and 2003, but that “[t]he scatter in her subtest scores falls within
acceptable limits.” 9 (Tr. 463). Dr. Leisgang opined that plaintiff’s “tested IQ is much lower
than would be expected given her clinical presentation. Emotional and very likely motivational
8
The verbal comprehension score on the WISC-IV is the functional equivalent of the verbal IQ on the WISC-III, and
the perceptual reasoning score on the WISC-IV is the functional equivalent of the performance IQ on WISC-III. See
Fatheree v. Colvin, No. 1:13-cv-01577, 2015 WL 1201669, at *10 (E.D. Cal. Mar. 16, 2015) (and cases cited
therein). See also Richardson v. Colvin, No. 2:13-cv-101, 2014 WL 2507927, at *9 (E.D. Tenn. June 4, 2014).
9
Dr. Leisgang’s report does not indicate that she was aware of plaintiff’s November 2007 test results.
24
factors may have interfered with her performance as she appears to be of low to average
intelligence.” (Id.).
Fifth, in April 2011 when plaintiff was 17 years and 10 months old, she received a verbal
score of 68, a perceptual reasoning score of 65, a working memory score of 58, a processing
speed score of 50, and a full-scale score of 55 on the Wechsler Adult Intelligence Scale
(“WAIS”). (Tr. 467, 471). Dr. Heiskell opined that plaintiff’s IQ scores “are considered to be
valid insofar as they represent her current status. However her level of emotional distress was so
extreme her ability to perform cognitively was impaired. Underlying intellectual functioning
likely optimally falls in the borderline range. . . .” (Tr. 472).
In this case, the ALJ focused on plaintiff’s test scores from 2007 and 2008 in finding
plaintiff did not meet the listings. (Tr. 19, citing Tr. 384-84, 463-64). Yet, of plaintiff’s five IQ
tests, the only test considered sufficiently current under the regulations is that performed by Dr.
Heiskell in April 2011 when plaintiff was 17 years and 10 months old. (See Tr. 471); see 20
C.F.R. Part 404, Subpart P, Appendix 1, § 112.00(D)(10) (“IQ test results obtained at age 16 or
older should be viewed as a valid indication of the child’s current status, provided they are
compatible with the child’s current behavior.”). Plaintiff’s IQ scores (verbal of 68 and full-scale
of 55) meet the threshold IQ requirements for Listings 12.05B and C and 112.05C and D. (Tr.
472). Plaintiff’s next most recent testing with Dr. Leisgang occurred in July 2008 when plaintiff
was 15 years and 1 month old and was only current until July 2010. (See Tr. 460); 20 C.F.R.
Part 404, Subpart P, Appendix 1, § 112.00(D)(10). Plaintiff’s testing with Dr. Dearth, on which
the ALJ relied in disregarding plaintiff’s other test scores, occurred in November 2007 when
plaintiff was 14 years and 5 months old and was only current until November 2009. (See Tr.
383); 20 C.F.R. Part 404, Subpart P, Appendix 1, § 112.00(D)(10). Although Dr. Heiskell’s
25
April 2011 IQ test results were the only sufficiently current results under the regulations, the ALJ
relied on the November 2007 test results to find plaintiff did not meet Listings 12.05 and 112.05.
The ALJ’s reliance on the November 2007 IQ scores was improper as those scores were not
sufficiently current for purposes of plaintiff’s January 2011 SSI application. See Rabbers, 582
F.3d at 651 (holding that “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right”).
In addition, the ALJ’s finding that plaintiff’s IQ scores were not reliable due to
motivational, and not medical, factors lacks substantial support in the record. There is no
medical opinion in the record questioning the validity of Dr. Heiskell’s 2011 IQ test results—the
only sufficiently current results under the regulations. The ALJ assumes, without any medical
opinion to support her assumption, that Dr. Heiskell’s 2011 listing level test scores were the
product of plaintiff’s lack of motivation. 10 The only medical source to indicate that motivation
may have played a factor in IQ testing was Dr. Leisgang who examined plaintiff three years
earlier. While the ALJ may have been justified in disregarding the full scale IQ score of 44
obtained by Dr. Leisgang in 2008 due to the motivational factors noted by Dr. Leisgang in her
report, the same cannot be said for the IQ scores obtained by Dr. Heiskell. There is no indication
that plaintiff lacked motivation during testing with Dr. Heiskell. Importantly, the ALJ failed to
heed the regulatory requirement to consider the narrative portion of Dr. Heiskell’s report when
10
The Supreme Court has explained that there are many reasons for the fluctuation in IQ test scores:
An individual’s IQ test score on any given exam may fluctuate for a variety of reasons. These
include the test-taker’s health; practice from earlier tests; the environment or location of the test,
the examiner’s demeanor; the subjective judgment involved in scoring certain questions on the
exam; and simple lucky guessing.
Hall v. Florida, 134 S.Ct. 1986, 1995 (2014).
26
assessing the validity of plaintiff’s 2011 IQ test scores. The regulations provide:
The results of standardized intelligence tests may provide data that help verify the
presence of intellectual disability . . . as well as the extent of any compromise in
cognitive functioning. However, since the results of intelligence tests are only
part of the overall assessment, the narrative report that accompanies the test
results should comment on whether the IQ scores are considered valid and
consistent with the developmental history and the degree of functional limitation.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(a) (emphasis added). A review of Dr.
Heiskell’s report establishes that he deemed the test to be valid. Dr. Heiskell explicitly opined
that plaintiff’s 2011 IQ scores were “valid insofar as they represent her current status.” (Tr.
472). In giving his “reliability estimate,” Dr. Heiskell stated that plaintiff’s responses were
internally consistent and consistent with her mother’s description of plaintiff’s behaviors. (Tr.
472). Dr. Heiskell also found that plaintiff’s “[p]ersistence with mental status tasks was
adequate overall, given her level of obvious irritability.” (Tr. 470). Rather than motivational
factors accounting for the decline in plaintiff’s cognitive functioning, Dr. Heiskell attributed the
decline in plaintiff’s cognitive functioning from 2000 to 2003 to 2011 to “interference from
[plaintiff’s] severe emotional disturbance.” (Tr. 472). As the medical evidence outlined above
shows, examining and treating mental health professionals found significant limitations
stemming from plaintiff’s major depressive disorder, oppositional defiant disorder, ADHD,
PTSD, dissociative identity disorder, OCD, and personality disorder NOS. (Tr. 386, 464, 472,
536). As there is no medical or psychological opinion questioning the reliability of Dr.
Heiskell’s test results, the ALJ’s reliance on plaintiff’s performance during testing in 2008 to
disregard the only sufficiently current test results from 2011 is without substantial support in the
record.
27
The ALJ also stated that the examiners who documented low IQ scores “refused to
diagnose” mental retardation and noted plaintiff functioned within the borderline range of
intelligence. (Tr. 19). As an initial matter, a formal diagnosis of mental retardation is not
necessary to meet Listings 12.05 and 112.05. “There is no authority for the proposition that [a
claimant] must be able to point to a diagnosis of mental retardation in order to satisfy [Listing
12.05].” Lingo v. Colvin, No. 3:13-cv-452, 2013 WL 6859870, at *5 (N.D. Ohio Dec. 29, 2013)
(quoting Thomas v. Comm’r of Soc. Sec., No. 08-cv-1365, 2010 WL 1254788, *11 (N.D. Ohio
Mar. 25, 2010)); see also Breitenstein v. Astrue, No. 3:10-cv-32, 2011 WL 1235018, at *12 (S.D.
Ohio Jan. 6, 2011) (Report and Recommendation) (“[I]nstead of requiring evidence of a
diagnosis of mental retardation, the correct analysis focuses on whether the evidence of record
meets or equals Listing 12.05’s introductory paragraph and 12.05C’s criteria.”), adopted, 2011
WL1234902 (S.D. Ohio Mar. 30, 2011); Wilkerson v. Comm’r of Soc. Sec., No. 3:08-cv-419,
2010 WL 817307, at *13 (S.D. Ohio Mar. 5, 2010) (“Requiring such a diagnosis in cases of
mental retardation would place formalism over substantive evidence.”). Although plaintiff’s IQ
scores were lower than Dr. Heiskell expected based on plaintiff’s clinical presentation and Dr.
Heiskell estimated that plaintiff’s “[u]nderlying intellectual functioning likely optimally falls in
the borderline range” 11 (Tr. 472), Dr. Heiskell nevertheless considered the scores to be a valid
indication of plaintiff’s current status; he stated plaintiff’s responses were consistent with her
clinical presentation; and he opined that her persistence with mental status tasks was adequate.
These circumstances do not support the ALJ’s finding of invalid scores. See Dragon v. Comm’r
of Soc. Sec., 470 F. App’x 454, 456, 461-62 (6th Cir. 2012).
11
Borderline intellectual functioning is usually associated with IQ scores of at least 70. Dragon v. Comm’r of Soc.
Sec., 470 F. App’x 454, 456, 461 (6th Cir. 2012).
28
In Dragon, the claimant received academic instruction under an IEP for a developmental
handicap and speech impairment. Id. at 456. She “never passed any of the ninth grade
proficiency tests and was exempted because she ‘[did] not have the necessary skills to pass.’” Id.
An examining psychologist administered the WAIS on which the claimant received a verbal
score of 58, a performance score of 51, and a full scale score of 50, which were significantly
lower than the scores she received on the WISC at the age of 12. Id. The examining
psychologist indicated that the claimant’s “tested I.Q. is lower than would be expected on the
basis of clinical presentation. Emotional and motivational factors may have interfered with
performance on this measure as [she] appears to be of borderline intelligence.” Id. The Sixth
Circuit held that substantial evidence did not support the ALJ’s conclusion that the examining
psychologist’s statement that the scores were lower than expected completely invalidated those
scores. Id. at 462. In so holding, the Sixth Circuit noted that the ALJ improperly ignored the
examining psychologist’s earlier observation that the claimant “did not appear to exaggerate or
minimize her difficulties . . . [and] was adequately motivated.” Id. The Sixth Circuit also held
that the ALJ improperly disregarded the examining psychologist’s “full evaluation, which served
to reinforce the I.Q. scores, rather than undermine them.” Id.
Like Dragon, Dr. Heiskell’s full examination supports the validity of plaintiff’s 2011 IQ
score. Dr. Heiskell opined that plaintiff’s performance was reliable as “she gave responses that
appeared internally consistent, and which were consistent with her mother’s descriptions of
[plaintiff’s] behaviors.” (Tr. 472). Dr. Heiskell extensively documented plaintiff’s mental and
emotional impairments that he observed during the examination and testing. (See Tr. 468-71).
While Dr. Heiskell had expected plaintiff’s IQ score to be higher based on her clinical
29
presentation, he considered her IQ results “to be valid insofar as they represent her current
status.” (Tr. 472).
In addition, and similar to the claimant in Dragon, plaintiff’s school records establish that
her April 2011 IQ scores are consistent with her developmental history and degree of functional
limitation. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(a). Throughout her school
years plaintiff’s academic functioning and abilities were consistently and significantly behind
those of her peers. (Tr. 274-76, 294, 303, 304, 370-71, 374-79, 381, 501, 502, 508, 511). When
plaintiff was a senior in high school, she was reading at only a “lower second grade level” and
was “computing math at a[n] 8th grade level.” (Tr. 346). Plaintiff’s participation in the Ohio
Graduation Test was by alternate assessment, and she was excused from the consequences of not
passing the test. (Tr. 354). Plaintiff received academic instruction under an IEP in a
self-contained classroom for students with multiple disabilities based on her educational
disability of “Mental Retardation/Mentally Impaired/Intellectually Limited.” (Tr. 226, 354).
Thus, substantial evidence does not support the ALJ’s conclusion that the lack of a diagnosis of
mental retardation invalidated otherwise valid, qualifying IQ scores for purposes of Listings
12.05 and 112.05.
Finally, the 2011 IQ scores are generally consistent with other IQ scores plaintiff
obtained over the years. Taking the lowest IQ score in the series as directed by the regulations,
plaintiff’s IQ was 71 in 2000, 59 in 2003, 77 in 2007, 44 in 2008, and 50 in 2011. Thus, over an
eight-year period, plaintiff had 3 scores of 59 or less for purposes of listings 12.05B and
112.05C. Moreover, plaintiff’s score of 71 in 2000 would fall within an interval of
approximately 66 to 76, which is within the range of scores to qualify under listings 12.05C and
112.05D with another “mental impairment imposing an additional and significant work-related
30
limitation of function.” See 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.05C, 112.05D;
Hall, 134 S.Ct. at 1995 (explaining that an IQ “score of 71, for instance, is generally considered
to reflect a range between 66 and 76 with 95% confidence and a range of 68.5 and 73.5 with a
68% confidence”). In focusing on plaintiff’s non-qualifying score in 2007, the ALJ improperly
ignored the four other IQ scores in the record, which were spread over an eleven-year period.
See Lingo, 2013 WL 6859870, at *4 (“[F]ocusing on the non-qualifying IQ score to the
exclusion of other evidence that may be relevant to the age-of-onset requirement is inconsistent
with the substantial evidence standard.”); Boyd v. Astrue, No. 09-4619, 2011 WL 1004562, at *4
(E.D. Pa. Mar. 18, 2011) (“The ALJ, on remand, should consider all evidence, including all three
I.Q. tests on record and Boyd’s school records, to make a factual finding as to whether Boyd’s
mental condition equals Listing 12.05(C).”). 12
The Commissioner relies on the Court’s opinion in Griffey v. Astrue, No. 1:08-cv-786,
2009 WL 4396520 (S.D. Ohio Dec. 1, 2009), as support for the ALJ’s decision to discount
plaintiff’s qualifying IQ scores. (Doc. 15 at 15). That reliance is misplaced. In Griffey, the
claimant graduated from high school in 1972 and applied for disability benefits in 2003. Griffey,
2009 WL 4396520, at *1. In 1996, the claimant received a verbal IQ score of 69 and a full scale
IQ score of 70. Id. at *2. In 2006, an examining state-agency psychologist administered an
additional IQ test, on which the claimant received a verbal score of 52, a performance score of
52, and a full scale score of 48. Id. The examining psychologist believed those scores “were
very likely unreliable.” Id. at *6. In affirming the denial of disability benefits, this Court found
that “[t]he wide discrepancy between the two tests given ten years apart is further evidence of the
12
The Commissioner contends that plaintiff ignores the “medical opinions of the state agency doctors—made after
all the IQ tests in the record—which concluded that plaintiff does not meet or equal Listings 112.05 or 12.05” (Doc.
15 at 19). However, the state agency reviewers’ reports do not comment on or give any indication that they
considered whether plaintiff met or equaled Listings 112.05 and 12.05 despite listing level IQ scores. (Tr. 76, 85).
31
questionable validity of the later tests.” Id. This Court also found that the claimant had failed to
establish that she met the introductory requirement of Listing 12.05 of “deficits in adaptive
functioning before age 22.” Id.
Unlike the claimant in Griffey, plaintiff received three scores that qualified under Listing
12.05B (59 in 2003, 44 in 2008, and 50 in 2011) and one score that arguably qualified under
Listing 12.05C (71 in 2000, which represents a range of 66 to 76), given plaintiff’s numerous
additional mental impairments. Thus, plaintiff had four tests that were consistent in qualifying
her for disability under Listings 12.05 and 112.05. Under the logic of Griffey, the wide
discrepancy of plaintiff’s score of 77 in 2007 from her other results would render that result of
questionable validity, not her four other results that were consistent with a finding of intellectual
disability. See id. at *6. Further, unlike the claimant in Griffey, and as explained below,
substantial evidence establishes that plaintiff has met her burden of showing she satisfies the
threshold requirement of “deficits in adaptive functioning initially manifested . . . before age 22.”
In addition, plaintiff obtained some of her qualifying scores long before she applied for disability
benefits, strongly suggesting there was no financial incentive to minimize her level of intellectual
functioning. Finally, unlike the claimant in Griffey, who obtained both IQ results as an adult,
plaintiff obtained all of her IQ scores before the age of 18, and she received 4 of those scores
before the age of 16, when a person’s IQ “tend[s] to stabilize.” See 20 C.F.R. Part 404, Subpart
P, Appendix 1, § 112.00(D)(10). The ALJ’s reliance on a result from 2007, which was not
sufficiently current for purposes of the Commissioner’s own regulations, was improper and is
another characteristic that distinguishes plaintiff’s case from Griffey.
For the reasons stated above, the ALJ’s reliance on the alleged “unreliability” of
plaintiff’s IQ tests, the perceived lack of motivation during testing, and recent IQ scores “near
32
the upper end of the borderline range” (Tr. 19) does not provide substantial support for
disqualifying plaintiff’s listing level IQ scores.
The Commissioner further argues that aside from whether has valid IQ scores for
purposes of Listings 112.05 and 12.05, plaintiff has not demonstrated significantly subaverage
general intellectual functioning and the deficits in adaptive functioning necessary to satisfy these
listings. (Doc. 15 at 14). The Commissioner contends that the ALJ’s discussion of plaintiff’s
activities of daily living, social functioning, and other inconsistencies between her allegations
and the evidence provide substantial support for a finding that plaintiff does not have deficits in
adaptive functioning. (Id.).
Contrary to the Commissioner’s argument, the record evidence demonstrates plaintiff’s
significantly subaverage general intellectual functioning before the age of 22 for purposes of
Listings 112.05 and 12.05. Elementary school records show plaintiff received “extremely low”
scores on the Wechsler Individual Achievement Test (“WIAT”) in the areas of reading,
mathematics, writing, and spelling. 13 (See Tr. 370, 385). Specifically, in 2003 when plaintiff
was 10, she received a reading score of 50, a numerical operations score of 67, and a spelling
score of 47, all of which were “extremely low.” (Tr. 370). The 2003 WIAT results placed
plaintiff in less than the 0.1 percentile for reading, the first percentile for numerical operations,
and greater than the 0.1 percentile for spelling. (Id.). A school psychologist report from 2006
concluded that plaintiff “will perform academically at a level significantly below that of sameaged peers” and that her “cognitive ability will likely have an adverse effect on her academic
performance.” (Tr. 502). In 2007, plaintiff received “very low” scores in all subject areas on the
WJTA, indicating she was performing at a first grade level in reading and writing and a fourth
13
Scores on the WIAT have a mean of 100 and a standard deviation of 15. (See Tr. at 385).
33
grade level in mathematics. (See Tr. 377). Educational diagnostician Lentes concluded that
plaintiff’s “academic skills, and her fluency with those skills, are negligible.” (Tr. 377).
Additional testing in 2007 yielded WIAT results that were “significantly below average.” (Id.).
Dr. Dearth reported that plaintiff endorsed significantly greater than average difficulties in
cognitive function, academic performance, oppositional attitudes and limit testing, family
discord, psychological distress, social withdrawal, social skills, and social awareness. (Tr. 386).
Dr. Dearth found that these difficulties were consistent with plaintiff’s prior clinical presentation.
(Id.).
In addition to these test results, school records also indicate that plaintiff’s general
intellectual functioning was “significantly subaverage” before the age of 22. For example, in the
ninth grade, plaintiff was reading at just below the first grade level and was computing math at
the fifth grade level. (See Tr. 311). Further, her individualized education program reevaluation
indicated that she had a “significant” and “severe” cognitive delay. (Tr. 501). In the eleventh
grade, plaintiff was reading at a first grade level, computing math at a fourth grade level, and
writing at the level of a kindergartner. (Tr. 218). She received all of her academic instruction
that year in a self-contained special education classroom that had two teachers for eight students
with multiple disabilities. (Tr. 218-19). As a senior in high school, plaintiff was reading at a
“lower second grade level” and was “computing math at a[n] 8th grade level.” (Tr. 346).
Further, plaintiff’s participation in the Ohio Graduation Test was by alternate assessment, and
she was excused from the consequences of not passing the test. (Tr. 354). To justify this
exemption, plaintiff’s IEP indicated that “[s]he receives all her classes in the [Multiple
Disabilities] classroom and her curriculum is significantly altered from her peers.” (Id.). See
Dragon, 470 F. App’x at 456, 461 (holding that ALJ lacked substantial evidence to conclude that
34
claimant had failed to establish “significantly subaverage general intellectual functioning with
deficits in adaptive functioning” where claimant participated in a separate educational program
and was exempted from state proficiency tests because she did “not have the necessary skills to
pass”). Thus, contrary to the Commissioner’s contention, the evidence supports plaintiff’s
significantly subaverage general intellectual functioning before the age of 22.
The Commissioner also contends that plaintiff has not met her burden of showing she
satisfies the threshold listing requirement of “deficits in adaptive functioning.” The
Commissioner asserts that contrary to plaintiff’s argument the ALJ did not concede this issue,
“particularly in light of the ALJ’s credibility discussion of [p]laintiff’s activities of daily living,
social functioning and other inconsistencies between allegations and the evidence.” (Doc. 15 at
14).
“Adaptive functioning refers to how effectively individuals cope with common life
demands and how well they meet the standards of personal independence expected of someone
in their particular age group, sociocultural background, and community setting.” DSM-IV at 42.
“Adaptive functioning” includes the plaintiff’s “effectiveness in areas such as social skills,
communication, and daily living skills.” West v. Comm’r Soc. Sec. Admin., 240 F. App’x 692,
698 (6th Cir. 2007) (citing Heller v. Doe by Doe, 509 U.S. 312, 329 (1993)). Mental retardation
requires concurrent deficits or impairments in present adaptive functioning in at least two of the
following areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health, and safety.
DSM-IV at 49.
To the extent the ALJ determined that plaintiff did not meet the listing requirement of
deficits in adaptive functioning, that finding is not supported by substantial evidence. Plaintiff’s
35
school records amply document plaintiff’s deficits in adaptive functioning that manifested during
her developmental years. See, e.g., Tr. 371 (plaintiff’s social skills were “not age appropriate”
and she had “difficulty with initiating communication appropriately including greetings and
closings, turn taking, remaining on topic, and asking/answering questions appropriately); Tr. 501
(plaintiff demonstrated “severe and significant deficits in adaptive behavior and communication
for a student of her age”); Tr. 508 (documenting numerous deficits in plaintiff’s ability to
independently perform activities in area of communication, socialization, and self-direction, and
in area of independent functioning); Tr. 511 (plaintiff “will need a lot of help” to live
independently as an adult). In addition, test results indicate plaintiff had deficits in adaptive
functioning before the age of 22. In 2003 when plaintiff was 10, she obtained a general adaptive
composite score of 71 on the Adaptive Behavior Assessment System (“ABAS”). (Tr. 308).
Plaintiff’s ABAS results showed deficits in the areas of communication, community use,
functional academics, and self-direction. Further, these results indicated that she was
functioning at the 2.7 percentile compared to her same-age peers. (Id.). Additionally, in 2007
when plaintiff was 13 years and 8 months old, she received an adaptive behavior composite score
of 78 on the VABS. (Tr. 380). This score was “moderately low,” placing plaintiff in the seventh
percentile as compared to her age-level peers. (Tr. 381). She received moderately low scores in
all subsets of communication, daily living skills, and socialization, except for receptive
communication and play and leisure time for which she received “adequate” scores. (Tr.
380-81).
The Commissioner asserts, without explanation, that plaintiff’s “moderately low” VABS
scores are “insufficient to document a listings level intellectual disability.” (Doc. 15 at 14 n.13).
The Commissioner’s argument suggests that plaintiff must show “significant” or “marked”
36
deficits in adaptive functioning. However, the plain language of Listings 112.05 and 12.05—
which requires “deficits in adaptive functioning”—does not specify how severe the deficits must
be. 14 Under the Social Security regulations, “loss of adaptive functioning” is “manifested by
difficulties in performing activities of daily living, maintaining social relationships, or
maintaining concentration, persistence, or pace.” 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 12.00C4.
The ALJ determined that plaintiff, who had not attained the age of 22 as of the alleged onset
date, has moderate-to-marked difficulties in social functioning and moderate limitations in
concentration, persistence and pace. (Tr. 31). Although the ALJ determined that these moderate
limitations did not preclude work that was simple, routine and repetitive or that required
infrequent and minimal interaction with the co-workers or supervisors, such abilities are not
necessarily inconsistent with Listing 12.05C. See Brown v. Sec. of HHS, 948 F.2d 268, 270 (6th
Cir. 1991) (full scale IQ of 68 not inconsistent with obtaining driver’s license and work history
as a truck driver, limited literacy and sixth grade education, and ability to make change, do
laundry and clean his room); Wilson v. Astrue, No. 07–439, 2009 WL 69237, at *5 (E.D. Ky.
Jan. 9, 2009) (claimant’s ability to sustain concentration and interact with others not inconsistent
with listing 12.05C); Muntzert v. Astrue, 502 F. Supp.2d 1148, 1157-58 (D. Kan. 2007) (“DSM–
IV and Listing 12.05(C) assume many, if not most, mildly mentally retarded individuals will be
able to work. However, they recognize that some mildly mentally retarded individuals may be
unable to work where they have ‘a physical or other mental impairment imposing an additional
and significant work-related limitation of function.’”). See also Grenham v. Astrue, No. 08-cv11151, 2009 WL 1209026, at *5 (D. Mass. May 4, 2009) (“the Listings reflect this reality [that a
14
Indeed, if the diagnostic description for Listing 12.05 requires more than moderate deficits of adaptive functioning
as the Commissioner suggests, Listing 12.05D—which requires an IQ of 60 through 70 and marked restrictions in at
least two areas of mental functioning—would be rendered superfluous.
37
person with mild mental retardation may be able to work and maintain a household], as they
require a claimant to demonstrate another impairment apart from mild mental retardation before
they can be found disabled”) (citing Nieves v. Sec’y of HHS, 775 F.2d 12, 14 (1st Cir. 1985)).
Nevertheless, the Commissioner argues that more recent evidence demonstrates that
plaintiff did not demonstrate deficits in social functioning, including school records from 2007
and 2011 from plaintiff’s special education teachers, which show plaintiff had no vocabulary,
speech, or other specified social functioning problems during the school year. (Doc. 15 at 19,
citing Tr. 27, 35, 221, 378). Although the ALJ cited to these reports as evidence suggesting a
less than marked impairment in plaintiff’s social functioning, the ALJ ultimately agreed with the
state agency psychologists that plaintiff demonstrated “marked” impairment in interacting and
relating to others. (Tr. 27: “While the evidence regarding this functional domain was mixed and
there was considerable evidence indicating less than marked limitations [in] interacting and
relating with others, Drs. Rivera and Hoffman nevertheless opined that the claimant had marked
limitations in this functional domain (Exhibits 1A; 3A). The undersigned therefore resolved this
issue in favor of the claimant given the agreement between both Dr. Rivera and Dr. Hoffman. . .
.”). This evidence of a “marked” impairment in social functioning amply demonstrates
plaintiff’s deficits in adaptive functioning for purposes of the listing requirement.
Moreover, when the evidence cited by the Commissioner is viewed in the context of
plaintiff’s school records as a whole, this evidence does not provide substantial evidence to
support the conclusion that plaintiff did not have deficits in adaptive functioning that manifested
before age 22. The ALJ stated that plaintiff’s socialization was a strength, citing to the
observations of Ms. Kitts, plaintiff’s eleventh grade special education teacher, that plaintiff “had
no problems interacting and relating with others in her self-contained classroom” for individuals
38
with multiple disabilities and exhibited “excellent behavior” at school. (Tr. 27, citing Tr. 221,
225, 346). However, the ALJ ignores Ms. Kitts’s qualification concerning plaintiff’s behavior
that her “behavior would become an issue” if plaintiff “were moved [from the Multiple
Disabilities classroom] to the cognitive disabilities classroom.” (Tr. 225). While the
Commissioner also suggests that Ms. Kitts’s records show improvement in plaintiff’s adaptive
functioning, there is no indication from the ALJ’s decision that she considered how plaintiff’s
structured environment (i.e., the self-contained multiple disabilities classroom), supportive
services (e.g., sharing two full-time teachers with only seven other students), and altered
curriculum and assessment methods may have influenced Ms. Kitts’s questionnaire responses or
the ALJ’s own assessment of plaintiff’s level of functioning.
The Social Security regulations require the ALJ to examine how much extra help a child
needs and the effects of structured or supportive settings. See 20 C.F.R. § 416.926a(a)(1). The
regulations provide:
A structured or supportive setting may minimize signs and symptoms of your
impairment(s) and help to improve your functioning while you are in it, but your
signs, symptoms, and functional limitations may worsen outside this type of
setting. Therefore, we will consider your need for a structured setting and the
degree of limitation in functioning you have or would have outside the structured
setting. Even if you are able to function adequately in the structured or supportive
setting, we must consider how you function in other settings and whether you
would continue to function at an adequate level without the structured or
supportive setting.
20 C.F.R. § 416.924a(b)(5)(iv)(C) (emphasis added). See also Soc. Sec. Ruling 09-1p, Section
III (recognizing that a child who “needs a person, medication, treatment, device, or structured,
supportive setting to make [her] functioning possible or to improve the functioning” is not “as
independent as same-age peers who do not have impairments”); 20 C.F.R. § 416.924a(b)(7)(iv)
(“[G]ood performance in a special education setting does not mean that [a child is] functioning at
39
the same level as other children [her] age who do not have impairments.”). Specifically, the
ALJ’s decision reflects no recognition whatsoever of the special education assistance plaintiff
received, including her placement in the multiple disabilities classroom, small group instruction,
one-on-one instruction in the classroom, extended time on all academic activities, shortened
assignments, modified tests, the use of a calculator, and the services of a scribe. (See Tr. 274-75,
303, 312-16). Although Ms. Kitts’s questionnaire responses suggest plaintiff’s adaptive
functioning may have improved within the structured environment of the Multiple Disabilities
classroom and that plaintiff was learning occupational skills and life skill words to assist her
after high school, Ms. Kitts nevertheless concluded that plaintiff “would not be able to live
independently.” (Tr. 225).
The evidence described above, including the evaluations from the examining doctors, test
scores, and teacher assessments, demonstrates that plaintiff has deficits in adaptive functioning
that manifested before age 22 for purposes of Listings 12.05 and 112.05. The Commissioner’s
argument to the contrary is without substantial support in the record.
For these reasons, the Court finds the ALJ’s decision that plaintiff’s intellectual
functioning did not meet or equal the requisite criteria of Listings 12.05B, C or 112.05C, D is not
supported by substantial evidence and should be reversed. Accordingly, plaintiff’s assignment of
error should be sustained.
III. This matter should be reversed and remanded for an award of benefits.
If the Commissioner’s decision is not supported by substantial evidence, the Court must
decide whether to reverse and remand the matter for rehearing or to reverse and order benefits
granted. The Court has authority to affirm, modify, or reverse the Commissioner’s decision
“with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g); Melkonyan v.
40
Sullivan, 501 U.S. 89, 98 (1991).
Benefits may be immediately awarded “if all essential factual issues have been resolved
and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec. of
H.H.S., 17 F.3d 171, 176 (6th Cir. 1994). See also Abbott v. Sullivan, 905 F.2d 918, 927 (6th
Cir. 1990); Varley v. Sec. of H.H.S., 820 F.2d 777, 782 (6th Cir. 1987). The Court may award
benefits where the proof of disability is strong and opposing evidence is lacking in substance, so
that remand would merely involve the presentation of cumulative evidence, or where the proof of
disability is overwhelming. Faucher, 17 F.3d at 176. See also Felisky v. Bowen, 35 F.3d 1027,
1041 (6th Cir. 1994); Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
In this case, the proof of disability under Listings 12.05 and 112.05 is strong and
evidence to the contrary is lacking in substance. The evaluations from the examining doctors
and psychologists, the IQ and other test scores, and the teacher assessments demonstrate that
plaintiff has significantly subaverage general intellectual functioning with deficits in adaptive
functioning that initially manifested before the age of 22 for purposes of meeting Listings
12.05B and 112.05C. The evidence also establishes plaintiff has other mental impairments
imposing additional and significant work related limitation of function for purposes of Listings
12.05C and 112.05D. (Tr. 18, Finding of Fact 3). The only evidence to the contrary that the
ALJ considered in finding that plaintiff did not meet the listings for intellectual disability were
stale IQ scores that the ALJ should not have considered under the Social Security regulations
because they were obtained before plaintiff’s IQ had stabilized. See 20 C.F.R. Part 404, Subpart
P, Appendix 1, § 112.00(D)(10); see also Rabbers, 582 F.3d at 651. Accordingly, it is
41
recommended that the ALJ’s decision be reversed and the case be remanded for an award of
benefits. 15
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and this case be REMANDED for an
award of benefits pursuant to Sentence Four of 42 U.S.C. § 405(g).
Date:
12/7/2015
s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge
15
Because the undersigned determines that plaintiff qualifies as disabled under the listings, the Court need not reach
plaintiff’s other assignments of error. See 20 C.F.R. § 404.1520(a)(4) (“If we can find that you are disabled or not
disabled at a step, we make our determination or decision and we do not go on to the next step.”); McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (“During the sequential evaluation, if the claimant is found
to be conclusively disabled or not disabled, the disability determination is made, and the inquiry is ended.”).
42
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TERRIE CRAIG,
Plaintiff,
Case No. 1:14-cv-966
Beckwith, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
43
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?