Showalter v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 4 Complaint filed by Joshua E.E. Showalter. Objections to R&R due by 2/3/2014. Signed by Magistrate Judge Norah McCann King on 1/16/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSHUA E.E. SHOWALTER,
Plaintiff,
vs.

Civil Action 2:13-cv-283
Judge Economus
Magistrate Judge King

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 applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is now before the Court on Plaintiff Joshua Showalter’s
Statement of Specific Errors (“Statement of Errors”), Doc. No. 12, the
Defendant’s Memorandum in Opposition (“Commissioner’s Response”), Doc.
No. 18, and Plaintiff’s Reply, Doc. No. 19.
Plaintiff Joshua E.E. Showalter was awarded child’s disability
benefits in 1996 but, upon reaching the age of 18, was found not to
meet the disability standards for adults.

PAGEID 153-160.

He filed

his current applications for benefits on March 10, 2010, alleging that
he has been disabled since June 1, 2007.

PAGEID 65, 264, 271.

The

applications were denied initially and upon reconsideration, and
plaintiff requested a de novo hearing before an administrative law

judge.
An administrative hearing was held on July 28, 2011, at which
plaintiff appeared pro se, and his mother, Darlene Showalter, appeared
as a witness.

PAGEID 125-35.

During the hearing, which was described

as a “preliminary hearing,” the administrative law judge informed
plaintiff of his right to an attorney, recommended that plaintiff
retain an attorney and continued the hearing to October 18, 2011.

Id.

The administrative law judge also briefly discussed plaintiff’s
medical records and treatment history, advised plaintiff that he would
be required to produce medical records in support of his claim, and
“point[ed] out [a] problem to [plaintiff:] . . . You have no medical
evidence in support of your claim . . . .”

PAGEID 133-35.

A second administrative hearing was held on October 18, 2011, at
which plaintiff, now represented by counsel, appeared and testified,
as did plaintiff’s sister, Brandi Sue Coulter, who testified as a
witness, and Steven Rosenthal, who testified as a vocational expert.
PAGEID 84, 105.

In a decision dated November 2, 2011, the

administrative law judge concluded that plaintiff was not disabled
from June 1, 2007, through the date of the administrative decision.
PAGEID 75-76.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined
review on February 7, 2013.

PAGEID 45.

Plaintiff was 30 years of age on the date of the administrative
decision.

See PAGEID 76, 264.

Plaintiff has a limited education, is

able to communicate in English, and has past relevant work as a

2

janitor, material handler, farm laborer, nursery laborer, and building
cleaner.

PAGEID 75, 412, 414.

Plaintiff was insured for disability

insurance purposes through December 31, 2010.

PAGEID 67.

He has not

engaged in substantial gainful activity since June 1, 2007, his
alleged disability onset date.
II.

Id.

Medical Evidence
Plaintiff’s school records indicate that he was assigned to

developmentally handicapped classes in third grade.

PAGEID 288.

Plaintiff participated in the regular educational environment only for
lunch, study hall, and assemblies.

PAGEID 298.

In January and

February 1997, when plaintiff was 15 years of age and in the ninth
grade, he underwent a multi factored evaluation (“MFE”) to measure his
academic and adaptive progress and continued eligibility for placement
in special education classes.

PAGEID 299-314.

On the WRAT3,

plaintiff tested at the first grade in reading and spelling and at the
second grade in arithmetic.

PAGEID 302.

These results were

interpreted as follows:
Joshua’s academic skills on the WRAT fell at the lower
extreme
for
chronological
age.
His
reading
(word
recognition)
and
spelling,
which
appeared
somewhat
restricted for intellectual level, were equivalent to only
first grade.
Joshua could identify and write from
dictation alphabet letters.
He had a small fund of sight
reading
words
and
well
memorized
spelling
words.
Arithmetic achievement was equivalent to second grade.
Joshua could add and subtract with regrouping, but made
some computation errors. He did not attempt multiplication
or division facts.
PAGEID 303.

On the Stanford-Binet (4th Ed.), plaintiff achieved

3

a verbal reasoning standard age score (“SAS”) of 68, an
abstract/visual reasoning SAS of 85, a quantitative reasoning SAS of
66, a short-term memory SAS of 68, and a test composite score of 68.
PAGEID 304-05.

These results were interpreted as follows:

Joshua’s intellectual ability, as measured by the StanfordBinet: FE, fell significantly below average. His ability,
which meets or exceeds that of only 2% of the population,
is classified as being Mildly Deficient.
There is a 90%
chance that Joshua’s true Standford-Binet: FE SAS is
contained within the range of scores from 64 to 72.
This
is highly consistent with results of previous evaluations,
with a WISC-R IQ of 71 being obtained in September, 1991,
and a WISC-III IQ of 67 being obtained in November, 1993.
On the Stanford-Binet a relative strength for Joshua
involved
his
ability
to
reason
with
visual-spatial
nonlanguage tasks.
On the basis of Joshua’s measured
intellectual ability we would presently expect him to be
achieving academically on approximately a fourth to fifth
grade level.
Joshua’s reproduction of the Bender-Gestalt designs, a
supplemental test of visual motor perception, was normal
for chronological age, according to the Watkin’s Scoring
System.
This is consistent with the youth’s relative
strength
with
visual-spatial
tasks
on
the
cognitive
instrument.
Joshua is a normal appearing 15 year old youth who is not
accomplished regarding the finer points of grooming.
He
was polite and highly cooperative. Joshua appeared to try
hard to achieve success and was persistent in his efforts.
He employed a reflective approach with visual-spatial tasks
and overtly did not appear frustrated when he encountered
difficulties.
His relative visual-spatial strength in
conjunction with his reflective approach with the materials
suggests that Joshua has the potential to be a good worker
with manual tasks.
Id.
An Adaptive Behavior Inventory (“ABI”) was also administered in
January 1997 based on observations of plaintiff in the educational
setting by his special education teacher and as interpreted by the

4

school’s psychologist.

PAGEID 308.

Plaintiff achieved an ABI full

scale quotient of 48, which placed his “general adaptive functioning
at the lower extreme for chronological age.”

Id.

Plaintiff’s

performance in self-care skills, communication skills, social skills,
academic skills, occupational skills, and his overall ABI composite
quotient each fell at or below the first percentile of achievement.
Id.
In an employability/life skills assessment, plaintiff’s special
education teacher reported that plaintiff “needs to improve
employability skills in the areas of punctuality and attending on
time, general work habits, work quantity and quality, relations with
supervisors, setting personal goals and showing initiative.”

PAGEID

309.
Based on his MFE, plaintiff was assigned to “special education
services in the developmentally handicapped program,” using a modified
curriculum with small group instruction.

PAGEID 313-14.

James C. Tanley, Ph.D., consultatively psychologically evaluated
plaintiff on May 20, 2005. On the WAIS-III, plaintiff achieved a
verbal IQ score of 66, a performance IQ score of 78, and a full scale
IQ score of 69.

PAGEID 481.

Dr. Tanley opined that the “12 point

VIQ-PIQ spread is significant and suggestive of a Learning Disorder
for verbally mediated material.

He will therefore be diagnosed with

said Learning Disorder and Borderline intelligence per his PIQ.”

Id.

Dr. Tanley assigned a global assessment of functioning score (“GAF”)

5

of 601 and diagnosed a learning disorder NOS and borderline
intelligence (PIQ).

PAGEID 482.

John S. Reece, Psy.D., consultatively evaluated plaintiff on
March 20, 2008,

PAGEID 483-86,

assigned a GAF score of 60 and

diagnosed borderline intellectual functioning.

PAGEID 485.

Dr. Reece

did not have access to plaintiff’s achievement testing results.
PAGEID 486.

According to Dr. Reece, plaintiff had mild limitations in

his ability to (i) relate to others, including fellow workers and
supervisors, (ii) withstand the stress and pressures associated with
daily work activity, and (iii) manage funds.

Id.

Plaintiff had

moderate limitations in his ability to understand, remember, and
follow instructions and to maintain attention, concentration,
persistence, and pace sufficient to perform simple, repetitive tasks.
Id.
Joan Williams, Ph.D., reviewed the record for the state agency on
April 18, 2008, and completed a mental residual functional capacity
assessment and psychiatric review technique form.

PAGEID 488-505.

Dr. Williams opined that plaintiff was moderately limited in his
ability to (i) understand and remember detailed instructions, (ii)
carry out detailed instructions, and (iii) maintain attention and
1

The GAF scale is a method of considering psychological, social,
and occupational function on a hypothetical continuum of mental
health. The GAF scale ranges from 0 to 100, with serious
impairment in functioning at a score of 50 or below. Scores
between 51 and 60 represent moderate symptoms or a moderate
difficulty in social, occupational, or school functioning . . . .
Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 (6th Cir. Feb. 7,
2012).

6

concentration for extended periods.

PAGEID 488.

Plaintiff had mild

difficulty in maintaining social functioning, moderate restrictions of
activities of daily living, and moderate difficulty in maintaining
concentration, persistence, or pace.

PAGEID 502.

According to Dr.

Williams, plaintiff has the residual functional capacity to perform
simple, routine, repetitive work that involves no reading.

PAGEID

490.
Sylvester Briggs, Ph.D., consultatively evaluated plaintiff on
December 31, 2008.

PAGEID 506-15.

Plaintiff reported problems with

social relationships; difficulty concentrating, focusing, and
remembering critical matters; problems with comprehending and
following verbal commands and directives; and “concerns about his
noticeably flawed cognitive capacity.”

PAGEID 514-15.

Plaintiff

appeared to be moderately depressed and emotionally labile during the
evaluation.

Id.

Dr. Briggs assigned a GAF score of 55 and diagnosed

a mood disorder and an anxiety disorder due to a cognitive disorder;
occupational problems; “Borderline Intellectual Functioning (most
likely mild MR)”; and cluster C personality disorder,
avoidant/dependent personality disorder.

PAGEID 514.

According to

Dr. Briggs, plaintiff was markedly impaired in his mental and
psychological ability to manage funds and in his mental ability to (i)
relate to others, including co-workers and supervisors, (ii)
understand, remember, and follow instructions, and (iii) maintain
attention, concentration, persistence, and pace to perform repetitive,
routine, simple tasks.

PAGEID 514-15.

7

Plaintiff was moderately

impaired in his ability to withstand the stress and pressures
associated with day-to-day work activities.

Id.

John Waddell, Ph.D., reviewed the record for the state agency on
February 5, 2009, and completed a mental residual functional capacity
assessment and psychiatric review technique form.

PAGEID 516-33.

According to Dr. Waddell, plaintiff was markedly impaired in his
ability to understand, remember and carry out detailed instructions.
PAGEID 530-31.

Plaintiff was moderately impaired in six areas of

functioning relating to sustained concentration and persistence,
social interaction, and adaptation.

Id.

Dr. Waddell further opined

that plaintiff had mild restrictions of activities of daily living,
moderate difficulty in maintaining social functioning and in
maintaining concentration, persistence, or pace.

PAGEID 526.

Dr.

Waddell concluded that plaintiff is “quite cognitively limited, . . .
cannot read or write, and can only do very simple math.”
Plaintiff is “moderately limited in all areas.

PAGEID 533.

However, he retains

the capacity to complete simple tasks that do not require a rapid or
consistent pace.

[Plaintiff] can engage appropriately in simple

social interactions.”

Id.

Irma Johnston, Psy.D., also reviewed the record and, on June 2,
2009, affirmed Dr. Waddell's assessment.

PAGEID 534.

Stephen R. Yerian, Psy.D., consultatively evaluated plaintiff on
April 26, 2010.

PAGEID 568-75.

Plaintiff reported that he suffers

from depression, paranoia, sleep disturbance, back pain, and
migraines.

PAGEID 569.

Plaintiff also reported “feeling irritability

8

and easily aggravated and frustrated; being isolated and withdrawn
from others; excessive sleeping; feeling tired most days; experiencing
diminished energy; diminished interest and motivation; and poor
concentration.”

PAGEID 573.

Dr. Yerian assigned a GAF of 55 and

diagnosed a major depressive disorder, single episode, moderate, and
borderline intellectual functioning.

Id.

Dr. Yerian further opined

that plaintiff was markedly impaired in his ability to withstand the
stress and pressures associated with day-to-day work; moderately
impaired in his ability to relate to others, comprehend and respond to
verbal questions and inquiries, remember, maintain pace from a mental
health perspective, and persist on tasks from a mental health
perspective; and mildly impaired in his ability to understand and
follow instructions that are simple, concrete, and not detailed.
PAGEID 573-75.

Finally, Dr. Yerian opined that plaintiff does not

have the mental ability to manage his own funds.

PAGEID 574.

Jennifer Swain, Psy.D., reviewed the record for the state agency
on May 22, 2010 and completed a mental residual functional capacity
assessment and psychiatric review technique form.

PAGEID 576-93.

According to Dr. Swain, plaintiff had moderate restrictions of
activities of daily living, moderate difficulty in maintaining social
functioning, and moderate difficulty in maintaining concentration,
persistence, or pace.

PAGEID 586.

Plaintiff was also moderately

limited in nine out of twenty areas of functioning related to
understanding and memory, sustained concentration and persistence,
social interaction, and adaptation.

PAGEID 590-91.

9

Dr. Swain

concluded that plaintiff “retains the ability to sustain simple,
repetitive tasks in a setting where duties are relatively static and
changes can be easily explained.

[Plaintiff] would need regular

breaks and no strict production demands.”

PAGEID 593.

would also “benefit from oral/demonstrated instructions.

Plaintiff
[Plaintiff]

can interact with others appropriately for brief, superficial
contacts.”

Id.

John Waddell, Ph.D., again reviewed the record and, on November
16, 2010, affirmed Dr. Swain's assessment.

PAGEID 603.

III. Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of depressive disorder, a learning disorder, and
borderline intellectual functioning.

PAGEID 68.

The administrative

law judge also found that plaintiff’s impairments neither meet nor
equal a listed impairment, including Listing 12.05C:
The “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 at the consultative examination in 2005 [i.e., Dr.
Tanley’s consultative evaluation] the claimant tested with
verbal and full scale IQs in the 60s, it was determined
that, in light of his performance IQ of 78 that the
claimant’s other two scores were depressed due to a
learning disorder, and thus a diagnosis of borderline
intellectual functioning has been offered instead of a
diagnosis of mild mental retardation.
Additionally, the
claimant’s ability to perform some work activity as well as
his ability to perform routine activities and respond
appropriately to questions do not support a diagnosis of
mild mental retardation but rather borderline intellectual
functioning. For these reasons the requirements of Listing
12.05C are not met or equaled.

10

PAGEID 70-72.
The administrative law judge went on to find that plaintiff has
the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels but
with the following nonexertional limitations: no greater
than simple tasks and instructions with the ability to
maintain concentration and attention for two hour segments
over an eight hour workday; the ability to respond
appropriately to supervisors and co-workers in a task
oriented setting where contact with others is casual and
infrequent; and the ability to adapt to simple changes and
avoid hazards.
Additionally, the claimant is considered
illiterate.
PAGEID 70-72.

The administrative law judge relied on the testimony of

the vocational expert to find that this RFC allows plaintiff to
perform his past relevant work as a farm laborer.

PAGEID 75.

Accordingly, the administrative law judge concluded that plaintiff was
not disabled within the meaning of the Social Security Act from June
1, 2007, through the date of the administrative law judge’s decision.
Id.
IV.

Discussion
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.

11

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human 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.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see 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.

Plaintiff argues, inter alia, that the administrative law judge
erred in concluding that plaintiff does not meet the requirements of
Listing 12.05C.

Statement of Errors, pp. 15-18.

Specifically,

plaintiff argues that the administrative law judge erred in finding
that plaintiff did not have a valid IQ score of between 60 and 70 and
in concluding that plaintiff did not manifest deficits in adaptive
functioning prior to age 22.
Listing 12.05 requires, under appropriate circumstances, a
finding of disability based on the claimant’s intellectual disability:2

2

Prior to September 3, 2013, Listing 12.05 referred to “mental retardation,”
rather than to “intellectual disability.” The administrative law judge and
the parties refer to “mental retardation.”

12

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.
The required level of severity for this disorder is met
when . . . (C) [the claimant has demonstrated] a valid
verbal, performance, or full scale IQ of 60 through 70 and
a
physical
or
other
mental
impairment
imposing
an
additional and significant work-related limitation of
function.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.

A claimant must

establish three elements in order to satisfy Listing 12.05C: that he
experiences “significantly subaverage general intellectual functioning
with deficits in adaptive functioning [that] initially manifested
during the developmental period” (i.e., the diagnostic description);
(2) that he has a “valid verbal, performance, or full scale IQ of 60
through 70,” and (3) that he suffers from “a physical or other mental
impairment imposing an additional and significant work-related
limitation of function.”

Id.

348, 354–55 (6th Cir. 2001).

See also Foster v. Harris, 279 F.3d
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 § 12.00(C)(4).

See also West v.

Comm'r Soc. Sec. Admin., 240 F. App’x 692, 698 (6th Cir. 2007)
(“Adaptive functioning includes a claimant's effectiveness in areas
such as social skills, communication, and daily living skills.”).
Present IQ scores do not alone establish that the claimant suffered

13

subaverage intellectual functioning or deficits in adaptive
functioning during the developmental period.

“A claimant must produce

evidence beyond his present IQ scores to show that he exhibited
deficits during his developmental period.”

Turner v. Comm'r of Soc.

Sec., 381 F. App’x 488, 491–92 (6th Cir. 2010) (citing Foster, 279
F.3d at 354–55).
As discussed supra, in order to satisfy Listing 12.05C, the
record must include a valid verbal, performance, or full scale IQ
score of 60 through 70.

Plaintiff points to school records that refer

to a November 1993 WISC-III IQ score of 67, a January 1997 verbal IQ
score of 68, and a full scale IQ score of 68.

See PAGEID 304-05.

Plaintiff’s school records also refer to a WISC-R IQ score of 71 in
September 1991.

Id.

In May 2005, plaintiff achieved a verbal IQ

score of 66, a performance IQ score of 78, and a full scale IQ score
of 69 on the WAIS-III administered by Dr. Tanley.

PAGEID 481.

The administrative law judge expressly considered plaintiff’s
2005 verbal and full scale IQ scores in evaluating Listing 12.05C, but
concluded that those scores were invalid.

PAGEID 71.

Specifically,

the administrative law judge found that, in light of plaintiff’s
performance IQ score of 78, plaintiff’s lower verbal and full scale IQ
scores were “depressed due to a learning disorder, and thus a
diagnosis of borderline intellectual functioning has been offered
instead of a diagnosis of mild mental retardation.”

Id.

This

conclusion is supported by substantial evidence in the record.

See

PAGEID 481 (indicating that plaintiff’s 2005 IQ scores are “suggestive

14

of a Learning Disorder for verbally mediated material” and diagnosing
“said Learning Disorder and Borderline intelligence”).

Nevertheless,

the administrative law judge did not expressly evaluate the 1993 and
1997 scores that fell within the applicable range of 12.05C, and he
did not expressly explain why those otherwise qualifying scores may
also be invalid.
The Commissioner argues that the administrative law judge did
not err in this regard and that plaintiff is “unable to satisfy his
burden [under 12.05C] because he was not diagnosed with mental
retardation and did not have significant adaptive deficits.”
Commissioner’s Response, p. 10.

According to the Commissioner,

“[b]ecause Plaintiff cannot point to any diagnosis of mental
retardation, it was proper for the ALJ to find he did not meet Listing
12.05C.”

Id. at p. 11.

The Commissioner further argues that

plaintiff’s 1991, 1993, and 1997 IQ scores “are of very limited
benefit in evaluating Plaintiff’s claim of disability beginning 2007.”
Id.

Specifically, the Commissioner argues that plaintiff’s 1991 and

1993 scores were not accompanied by any narrative report and that his
1997 scores are from tests “conducted when [plaintiff] was 15 years
old; ten years prior to his alleged onset date, and 14 years from the
ALJ’s decision.

Secondly, these scores carry no diagnosis of mental

retardation or borderline intellectual functioning.”
12.

Id. at pp. 11-

Finally, the Commissioner points to plaintiff’s work history,

“ability to do wide a variety of daily activities,” and consultative
exams from 2005 and 2008, and argues that “the record demonstrates

15

that Plaintiff did not have adaptive deficits that met or medically
equaled Listing 12.05.”

Id. at pp. 13-15.

The Commissioner’s

arguments are not well taken.
First, the Commissioner’s implication that a formal diagnosis
of mental retardation is necessary under Listing 12.05C, see
Commissioner’s Response, pp. 10 (“Plaintiff is unable to satisfy his
burden in this matter because he was not diagnosed with mental
retardation and did not have significant adaptive deficits.”), 11
(“Because Plaintiff cannot point to any diagnosis of mental
retardation, it was proper for the ALJ to find he did not meet Listing
12.05.”), 11 (“[Plaintiff’s 1997 scores] carry no diagnosis of mental
retardation or borderline intellectual functioning.”), is without
merit.

Although the absence of a formal diagnosis of mental

retardation may be relevant to a claim under Listing 12.05C, see
Cooper v. Comm’r Soc. Sec., 217 F. App’x 450, 452 (6th Cir. 2007) (“It
is undisputed that no psychologist has diagnosed [the plaintiff] with
mental retardation.

The examiner and clinical psychologist who tested

him diagnosed him instead as borderline intellectual functioning.”),
the formal diagnosis is not a necessary prerequisite to the Listing.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.

Second, although

plaintiff has been diagnosed with borderline intellectual functioning
(“BIF”), there is no indication that any of the BIF diagnoses were
rendered after consideration of plaintiff’s 1993 and 1997 IQ scores.
Cf. O’Conner v. Comm’r Soc. Sec., No. 4:13-cv-00072, 2013 WL 6817900,
at *10 (N.D. Ohio Dec. 23, 2013) (finding substantial evidence in the

16

record to support an administrative law judge’s invalidation of IQ
scores because, inter alia, a state agency consultative psychologist
diagnosed borderline intellectual functioning after reviewing the
plaintiff’s IQ scores).

Notably, neither Dr. Tanley nor the state

agency psychologists who reviewed the record made any mention of the
1993 and 1997 IQ scores.

See PAGEID 479-82 (Dr. Tanley), 490 (Dr.

Williams), 532 (Dr. Waddell), 592 (Dr. Swain).
The Court also rejects the Commissioner’s argument that
plaintiff’s 1993 and 1997 IQ scores were invalid.

Notably, there is

no indication that the administrative law judge considered those
scores in evaluating plaintiff’s claim by reference to Listing 12.05C;
indeed, the administrative decision makes no mention whatsoever of
these scores.

This Court therefore cannot conclude that substantial

evidence supports the invalidation of plaintiff’s qualifying 1993 and
1997 IQ scores (assuming that the administrative law judge did, in
fact, find the scores to be invalid).

Furthermore, the Commissioner’s

attempt to discount plaintiff’s 1997 scores on the basis of the “tests
[being] conducted when [plaintiff] was 15 years old; ten years prior
to his alleged onset date, and 14 years from the ALJ’s decision,”
Commissioner’s Response, p. 11, is entirely unpersuasive.

In order to

satisfy Listing 12.05C, a claimant must establish that the disabling
condition existed “during the developmental period, i.e., the evidence
[must] demonstrate[] or support[] onset of the impairment before age
22.”

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

279 F.3d at 354–55.

See also Foster,

The fact that plaintiff was 15 years of age and

17

in “the developmental period” when the 1997 test was administered
renders the results of that test particularly relevant in a 12.05C
determination.

Cf. Foster, 279 F.3d at 354-55 (“[The plaintiff] has

failed to show that her general intellectual functioning was
‘significantly subaverage’ prior to [age 22].

None of her testing or

evaluation was contemporaneous with her developmental period; she was
already 42 years of age when the first testing was performed in
1997.”).

The administrative law judge’s failure to consider

plaintiff’s 1993 and 1997 IQ scores in evaluating Listing 12.05C was
therefore error.
The administrative law judge also failed to adequately consider
plaintiff’s deficits in adaptive functioning.

Despite noting in an

earlier portion of his decision that plaintiff “was still having
difficulty with language arts, math, and adaptive behavior” in high
school, see PAGEID 68, there is no indication that the administrative
law judge considered plaintiff’s 1997 MFE in his evaluation of
plaintiff’s claim.

The MFE indicates, inter alia, that, when

plaintiff was 15 years of age and in the ninth grade, he was able to
read at a first grade level and perform arithmetic at a second grade
level, PAGEID 302; his “general adaptive functioning [was] at the
lower extreme for chronological age,” PAGEID 308; and his performance
in self-care skills, communication skills, social skills, academic
skills, occupational skills, and his overall adaptive behavior
inventory composite quotient each fell at or below the first
percentile of achievement.

Id.

Furthermore, plaintiff’s special

18

education teacher reported that plaintiff “needs to improve
employability skills in the areas of punctuality and attending on
time, general work habits, work quantity and quality, relations with
supervisors, setting personal goals and showing initiative.”
309.

PAGEID

This evidence is directly relevant to the issue of plaintiff’s

adaptive functioning prior to age 22.

See West, 240 F. App’x at 698

(“Adaptive functioning includes a claimant's effectiveness in areas
such as social skills, communication, and daily living skills.”); 20
C.F.R., Pt. 404, Subpt. P., App. 1 § 12.00(C)(4) (“[Loss of adaptive
functioning” is “manifested by difficulties in performing activities
of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace.”).

The administrative law

judge’s failure to consider plaintiff’s MFE was therefore likewise
improper.
In short, the Court concludes that the administrative law judge
erred in his evaluation Of plaintiff’s claim by reference to Listing
12.05C.
It is therefore RECOMMENDED that the decision of the
Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g)
and that this action be REMANDED to the Commissioner of Social
Security for further consideration of Listing 12.05C.
Having concluded that the action must be remanded on this basis,
the

Court

need

not

and

does

not

arguments.

19

address

plaintiff’s

remaining

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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. 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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 16, 2014

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

20