Harriman v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATIONS re 4 Complaint filed by Melissa A Harriman. It is RECOMMENDED that the decision of the Commissioner be reversed and that the action be remanded to the Commissioner for further proceedings. Objections to R&R due by 2/22/2013. Signed by Magistrate Judge Norah McCann King on 2/4/2013. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELISSA A. HARRIMAN,
Plaintiff,
vs.

Civil Action 2:12-CV-33
Judge Graham
Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

REPORT AND RECOMMENDATION
I.

Background

This is an action instituted under the provisions of 42 U.S.C.
§405(g), for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for supplemental security income.
This matter is now before the Court on plaintiff’s Statement of Errors,
Doc. No. 14, the Commissioner’s Memorandum in Opposition, Doc. No. 19, and
plaintiff’s Reply. Doc. No. 20.
Plaintiff Melissa A. Harriman filed her application for benefits on
June 19, 2007, alleging that she has been disabled since January 1, 2000,
as a result of a learning disability and blindness in her left eye. PAGEID
167-69, 176. The application was denied initially and upon reconsideration,
and plaintiff requested a de novo hearing before an administrative law
judge.
A hearing was held on January 11, 2010, at which plaintiff,
represented by counsel, appeared and testified, as did Walter B. Walsh who
testified as a vocational expert. In a decision dated February 26, 2010,
the administrative law judge concluded that plaintiff is not disabled
within the meaning of the Social Security Act. PAGEID 57-66.

The administrative law judge specifically found that plaintiff’s
severe impairments consist of a left eye impairment, asthma, low back pain,
obesity, an affective disorder and borderline intellectual functioning.
PAGEID 59.

However, plaintiff does not suffer an impairment or combination

of impairments that meets or equals a listed impairment, including Listing
12.05C, which addresses mental retardation.

Id., at 59, 61.

The

administrative law judge went on to find that plaintiff has the residual
functional capacity for a reduced range of light work.

PAGEID 61-64.

Relying on the testimony of the vocational expert, the administrative law
judge found that, despite plaintiff’s impairments, her residual functional
capacity would permit the performance of a significant numbers of jobs.
Accordingly, the administrative law judge concluded that plaintiff is not
disabled within the meaning of the Social Security Act.
That decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on November 14, 2011.
PAGEID 43-47.
II.Standard
Pursuant to 42 U.S.C. §405(g), judicial review of the Commissioner’s
decision

is

limited

to

determining

whether

the

findings

of

the

administrative law judge are supported by substantial evidence and employed
the proper legal standards. Richardson v. Perales, 402 U.S. 389 (1971).
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
Substantial evidence is more than a scintilla of evidence but less than
a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Jones v. Comm’r of Soc. Sec.,
336 F.3d 469, 475 (6th Cir. 2003); Kirk v. Secretary of Health & Human

2

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try the case
de novo, nor does it resolve conflicts in the evidence or questions of
credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court must
examine the administrative record as a whole. Kirk, 667 F.2d at 536. If
the Commissioner’s decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently, Tyra
v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)), and even if
substantial evidence also supports the opposite conclusion. Longworth, 402
F.3d at 595.
III.Relevant Evidence
Plaintiff

does

not

challenge

the

administrative

law

judge’s

evaluation of her exertional impairments. Statement of Errors, PAGEID 931,
937-42. Rather, plaintiff challenges the administrative law judge’s
evaluation of her mental impairments.

Because the Court concludes that

the administrative law judge erred in his evaluation of Listing 12.05C,
the

Court

concludes

that

the

matter

must

be

remanded

for

further

proceedings.
Plaintiff has an eleventh grade, “limited” education in special
education classes. PAGEID 64, 181. She has no prior relevant work
experience.

PAGEID

64,

177.

Plaintiff

testified

that

she

cannot

understand what she is reading. PAGEID 74 She required help in applying
for an Ohio identification card. Id.
Plaintiff testified that she cannot work because she has problems with
her back and knees, is blind in one eye, is a “slow learner,” and suffers

3

from bipolar disorder and depression. PAGEID 78-80. She lives with her
mother, who cares for most daily activities such as housework and laundry.
PAGEID 81.

Her brother had custody of plaintiff’s children. PAGEID 78.

In 1994, plaintiff’s full scale IQ measured 80 on the Wechsler
Intelligence Scale for Children-III. PAGEID 345. In 1997, her composite
score on the Stanford-Binet Intelligence Scale, 4th Edition, measured at
79. Id. A school psychologist interpreted these results as “suggest[ing]
cognitive functioning within the borderline to low average range.” Id.
Plaintiff’s special education teacher reported that plaintiff had “a
difficult time comprehending written and verbal instructions” and needed
“much individualized instruction and repetition.” PAGEID 344. In May 2000,
an evaluation team determined that plaintiff's cognitive and adaptive
abilities fell in the developmentally handicapped range and she continued
to show academic deficits. PAGEID 350.

According to plaintiff’s May 2002

IEP, plaintiff was considered disabled due to “Mental Retardation (DH).”
PAGEID 333.
In April 2006, plaintiff was evaluated by Tambrey Delbert, Ph.D., and
Roger Wilcox, Ph.D., upon referral by the Department of Job and Family
Services. PAGEID 303-07. The psychologists concluded that “[o]verall,
cognitive and memory functioning were adequately developed.” PAGEID 306.
On the WRAT-3, plaintiff achieved fourth-grade equivalent abilities in
reading, spelling and arithmetic. PAGEID 307. The psychologists diagnosed
posttraumatic stress disorder, an adjustment disorder with depressed mood
and a learning disorder, NOS.

Id. Plaintiff was assessed a Global

Assessment of Functioning (GAF) score of 63.1 Id. The psychololgists

1

Health care clinicians perform a Global Assessment of Functioning to determine
a person’s psychological, social, and occupational functioning on a hypothetical

4

concluded that plaintiff’s psychological difficulties were “primarily
expressions of more current losses as opposed to long-term difficulties.”
Id.
Drs. Delbert and Wilcox also completed a mental functional capacity
evaluation, PAGEID 308-09, in which they opined, inter alia, that plaintiff
was moderately to markedly limited in her abilities to work in coordination
with or proximity to others without being distracted by them, to complete
a normal work-day and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods, and to accept instructions and respond
appropriately to criticism from supervisors. The psychologists concluded
that plaintiff would be unemployable for up to 9 months based on the results
of their examination. PAGEID 309.
Dr. Delbert evaluated plaintiff again in July 2007. PAGEID 313-17.
At that time, plaintiff exhibited good immediate auditory memory skills,
fair concentration and an adequate fund of knowledge.

PAGEID 315. She

demonstrated a full ability to understand directions. PAGEID 316. On the
WRAT-3, plaintiff tested at the third-grade equivalent in reading, spelling
and arithmetic. Id. Accordingly to Dr. Delbert, “[o]verall, cognitive and
memory functioning were limited in some areas but generally adequate.” Id.
Dr. Delbert diagnosed an adjustment disorder with a depressed mood and a
learning disorder, NOS. PAGEID 317. Plaintiff was assigned a current GAF
score of 60. Id. Dr. Delbert concluded that plaintiff had “a significant

continuum of mental illness. It is, in general, a snapshot of a person’s “overall
psychological functioning” at or near the time of the evaluation. See Hash v.
Commissioner of Social Sec., 309 Fed.Appx. 981, 988 n.1 (6th Cir. 2009); see also
Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision at
pp. 32-34. A GAF score of 61-70 describes a person with “mild symptoms or some
difficulty with social, occupational or school functioning, but such a person can

5

amount of psychological difficulties especially associated with being
learning disabled” and that “those conditions, coupled at times with her
depressive symptoms, seem to impede her ability to secure and sustain
adequate employment.” Id.
In an assessment of plaintiff’s mental functional capacity, Dr.
Delbert opined that plaintiff was markedly impaired in her abilities

to

understand and remember very short and simple instructions and to carry
out detailed instructions; moderately to markedly impaired in her ability
to complete a normal work-day and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; and not significantly
limited to moderately impaired in her abilities to maintain attention and
concentration for extended periods sufficient to sustain an ordinary
routine without special supervision, to accept instructions and respond
appropriately

to

criticism

from

supervisors,

to

maintain

socially

appropriate behavior and to adhere to basic standards of neatness and
cleanliness; to be aware of normal hazards and take appropriate precautions
and to travel in unfamiliar places or use public transportation. Dr. Delbert
concluded that plaintiff would be unemployable for twelve months or more.
PAGEID 312.
In September 2007, plaintiff underwent a consultive psychological
evaluation at the request of the state agency by Lee Roach, Ph.D. PAGEID
435-42. Dr. Roach reported that plaintiff was oriented x 3. Her affect was
constricted. Page ID 436.

Plaintiff’s immediate recall was adequate, and

her long-term memory was functional. Id. On the WAIS-III, plaintiff
achieved a verbal I.Q.score of 70, a performance I.Q. score of 72 and a

generally functioning pretty well and have some meaningful interpersonal

6

full scale score IQ score of 68. PAGEID 437.
subtests

were

All verbal and performance

rated as “deficient.” PAGEID 437-38. On the WRAT-4,

plaintiff’s spelling tested at less than a grade 2 equivalent, sentence
comprehension fell in the 3rd to 4th grade range (3.4), and word reading
and computation scores fell between a grade 4 and 5 level (4.5 and 4.6,
respectively). PAGEID 438. According to Dr. Roach, these results placed
plaintiff in the borderline range of intellectual functioning. Dr. Roach
diagnosed

a

major

depressive

disorder,

without

psychotic

features,

recurrent, moderate to severe; a circadian rhythm sleep disorder; an acute
stress disorder; a pain disorder with both psychological factors and a
chronic medical condition; and borderline intellectual functioning. Dr.
Roach assigned a current GAF score of 60. PAGEID. 440. Dr. Roach opined
that plaintiff was able to complete simple, routine activity of daily living
tasks at home, but not on a production line due to her slow work pace.
PAGEID 441. Her mental ability to relate to others, including fellow workers
and supervisors, was markedly impaired by her depression and anxiety
symptoms, and she was unable to relate sufficiently to coworkers and
supervisors for even simple, repetitive tasks. Id. Dr. Roach opined that
plaintiff’s

ability to deal with the day-to-day stress and job pressures

is

impaired,

markedly

particularly

in

the

areas

of

concentration,

attention, pace and persistence. Id. Dr. Roach concluded that plaintiff
had the mental ability to perform at least simple repetitive household tasks
and activities of daily living that would not involve public interaction.
Id.
In October 2007, Roseann Umana, Ph.D., reviewed the record on behalf
of the state agency and opined that plaintiff had a mild restriction on

relationships.”

Id at 34.

7

her activities of daily living, and moderate difficulties in maintaining
concentration,

persistence,

and

pace,

and

in

maintaining

social

functioning. PAGEID 458. According to Dr. Umana, plaintiff was capable of
simple, routine tasks, would likely have difficulty with complex tasks,
would benefit from a workplace with limited/superficial interactions with
the general public, coworkers and supervisors and would benefit from a
relatively static/stable workplace without strict quota/production/pace
requirements. PAGEID 446.

Another state agency psychologist, Catherine

Flynn, Psy.D., reviewed the evidence and affirmed Dr. Umana’s assessment
in May 2008. PAGEID 534.
IV.Discussion
Listing 12.05 requires, under appropriate circumstances, a finding
of disability based on the claimant’s 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 . . .
(C) [The claimant has demonstrated]
performance, or full scale IQ of 60
or other mental impairment imposing
significant work-related limitation

a valid verbal,
through 70 and a physical
an additional and
of function.

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

A claimant must therefore

establish three elements in order to satisfy Listing 12.05C: that she
experiences “significantly subaverage general intellectual functioning
with deficits in adaptive function [that] initially manifested during the
developmental period” (i.e., the diagnostic description); (2)that she has
a “valid verbal, performance, or full scale IQ of 60 through 70;" and (3)

8

that she suffers from “a physical or other mental impairment imposing an
additional and significant work-related limitation of function.”

Id.

See also Foster v. Harris, 279 F.3d 348, 354-55(6th Cir. 2001).
In concluding that plaintiff’s cognitive functioning does not satisfy
Listing 12.05C, the administrative law judge reasoned as follows:
. . .[T]he “paragraph C” criteria of listing 12.05 are
not met because the claimant does not have 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. Although the claimant’s full scale IQ score
was 68 during a consultative psychological examination
in September 2007, she does not have a physical or other
mental impairment imposing an additional and
significant work-related limitation of function . . . .
PAGEID 61 (emphasis added).

Because the administrative law judge had

previously found that plaintiff suffers other severe physical and mental
impairments, this finding is not supported by substantial evidence.
The Commissioner concedes that the administrative law judge erred in
this regard.

Memorandum in Opposition, PAGEID 959.

However, the

Commissioner characterizes that error as harmless and takes the position
that plaintiff’s cognitive functioning does not meet Listing 12.05C because
plaintiff cannot establish the first element of the Listing, i.e.,
significantly subaverage general intellectual functioning with deficits
in adaptive functioning initially manifested during the developmental
period.

Id.

However,

that

determination,

which

requires

the

consideration and evaluation of the evidence in the record, is for the
administrative law judge – not this Court - to resolve in the first instance.
See Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 176 (6th Cir.
1994)(“If a court determines that substantial evidence does not support
the [Commissioner’s] decision, the court can reverse the decision and

9

immediately [resolve the application for benefits] only if all essential
factual issues have been resolved. . . .”)
It is therefore RECOMMENDED that the decision of the Commissioner be
reversed and that the action be remanded to the Commissioner of Social
Security for further proceedings.
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1);
F.R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local
231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

Date: February 4, 2013

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

10