Baily v. Commissioner Social Security

Filing 23

REPORT AND RECOMMENDATIONS re 4 Complaint filed by James C. Baily. It is RECOMMENDED that the decision of the Commissioner be REVERSED and this action be REMANDED to the Commissioner of Social Security. Objections to R&R due by 1/13/2014. Signed by Magistrate Judge Norah McCann King on 12/26/2013. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES C. BAILY,
Plaintiff,
Civil Action 2:13-cv-344
Judge Marbley
Magistrate Judge King

vs.

COMMISSIONER OF SOCIAL SECURITY,

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 for consideration of Plaintiff’s, James C.
Baily, Statement of Errors (“Statement of Errors”), Doc. No. 15, and the
Commissioner’s Opposition to Plaintiff’s Statement of Errors, Doc. No. 22.
Plaintiff has not filed a reply.
Plaintiff James Baily filed his application for benefits on January
20, 2009. PAGEID 271. 1

The application was denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was initially held on March 31, 2011,
following which an administrative law judge concluded that plaintiff was
not disabled. PAGEID 154-165. Upon plaintiff’s request for review, the
1

Plaintiff initially alleged a disability onset date of April 11, 1979, but later
amended that date to January 20, 2009. PAGEID 285.

1

Appeals Council remanded the case for further consideration.

PAGEID

172-74.
A

second

administrative

hearing

was

held

before

a

different

administrative law judge on February 2, 2012, at which plaintiff,
represented by counsel, appeared and testified, as did George Coleman, who
testified as a vocational expert.

PAGEID 115.

In a decision dated March

6, 2012, that administrative law judge concluded that plaintiff was not
disabled from January 20, 2009, through the date of the administrative
decision.

PAGEID 79.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined review
on February 15, 2013.

PAGEID 52.

Plaintiff was 32 years of age on the date of the administrative
decision.

See PAGEID 79, 271.

He has a high school education, is able

to communicate in English, and has no past relevant work.

PAGEID 78.

Plaintiff has not engaged in substantial gainful activity since January
20, 2009, his alleged date of onset of disability.
II.

PAGEID 67.

Evidence of Record
Plaintiff’s school records indicate that, in 1986, at the age of six,

plaintiff achieved a full scale IQ score of 84.

PAGEID 371.

In 1989, at

the age of 10, plaintiff achieved a verbal IQ score of 68, a performance
IQ score of 112, and a full scale IQ score of 87.

Id.

In 1992, when

plaintiff was 13 years of age, testing showed a verbal IQ score of 73, a
performance IQ score of 99, and a full scale IQ score of 84.

Plaintiff’s

school records indicate that he was assigned to regular education classes
from October 5, 1998 through October 5, 1999, but that he had an IEP for

2

a specific learning disability and received services related to speech.
PAGEID 329.
Plaintiff graduated from high school in June 1999 with a grade point
average of 1.228 and a class rank of 117 out of 118 students.

PAGEID 376.

Plaintiff passed no portion of the Ninth Grade Proficiency Test.

PAGEID

377.
On February 1, 2008, Lee Howard, Ph.D., performed a consultative
psychological evaluation of the plaintiff at the request of the state
agency. PAGEID 465-75.

Plaintiff presented with complaints of (1)

“Stressed out, crying[,]” (2) “Hard to read, comprehend things[,]” and (3)
“Sometimes I don’t want to be bothered by nobody.”

PAGEID 466.

Plaintiff

also reported to be depressed “once a month” for “an hour or so.”

Id.

Plaintiff was not under the care of a physician, nor was he medicated at
the time of the exam.

Id.

His speech was reported as “slow, soft, and

with a mumbling quality and only understandable 80-85% of the time.”
PAGEID 472. On the WAIS-III, plaintiff achieved a verbal IQ score of 61,
a performance IQ score of 57, and a full scale IQ score of 55.
WMS-III, plaintiff achieved an average MQ score of 52.

On the

PAGEID 470-71, 474.

Dr. Howard noted that plaintiff “put[] forth an adequate effort during test
taking, but seems to be intimindated by the academic-like test setting and
this may have resulted in some mild under performance tendency.”

PAGEID

471.
Dr. Howard assigned a global assessment of functioning score (“GAF”)
of 50 2 and diagnosed an expressive language disorder and borderline

2

The GAF scale is a method of considering psychological, social, and

3

intellectual functioning versus mild mental retardation.

Id.

Dr. Howard

opined that plaintiff was moderately impaired in his ability to relate to
others, including coworkers and supervisors, and severely impaired in his
ability to (1) understand, remember, and follow instructions, (2) maintain
attention, concentration, persistence, and pace to perform routine tasks,
and (3) withstand the stress and pressures associated with day-to-day work
activity.

PAGEID 472.

Dr. Howard further opined that plaintiff does not

have the mental ability to manage his funds in his own best interest.
PAGEID 473.
Netcare Corporation performed a mental health assessment on February
20,

2008.

PAGEID

476-82.

Plaintiff

reported

difficulty

with

concentration and experiencing daily symptoms of depression for several
years,

including

sleep

inattention/hyperactivity.

disturbance,
PAGEID 476-77.

job because of his illiteracy.

depressed

mood,

and

Plaintiff could not find a

PAGEID 476.

Plaintiff also reported

seeing all but one of his children regularly and spending time with a group
of friends.
with

major

PAGEID 477.

Plaintiff was assigned a GAF of 53 and diagnosed

depressive

disorder,

recurrent,

moderate

and

attention-deficit/hyperactivity disorder NOS, “as evidenced by client’s
report of history and symptoms.”

PAGEID 479.

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).

4

John

L.

Tilley,

Psy.D.,

evaluated

plaintiff

behavioral health evaluation on October 20, 2008.

and

completed

PAGEID 488-99.

a

On the

WAIS-III, plaintiff achieved a verbal IQ score of 56, a performance IQ score
of 56, and a full scale IQ score of 52.

PAGEID 492.

Dr. Tilley assigned

a GAF of 35 and diagnosed plaintiff with moderate mental retardation.
PAGEID 496.
his

According to Dr. Tilley, plaintiff was moderately limited in

ability

to

(1)

understand

and

remember

very

short

and

simple

instructions, (2) carry out detailed instructions, (3) maintain attention
and concentration for extended periods, (4) sustain an ordinary routine
without special supervision, (5) make simple work-related decisions, (6)
complete

a

normal

workday

and

workweek

without

interruptions

from

psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods, (7) ask simple questions
or

request

assistance,

and

(8)

accept

appropriately to criticism from supervisors.

instructions
PAGEID 498.

and

respond

Dr. Tilley also

opined that plaintiff was markedly limited in his ability to understand
and remember detailed instructions and to perform activities within a
schedule, maintain regular attendance, and be punctual within customary
tolerances, and extremely limited in his ability to (1) remember locations
and work-like procedures, (2) respond appropriately to changes in the work
setting, (3) be aware of normal hazards and take appropriate precautions,
(4) travel in unfamiliar places or use public transportation, and (5) set
realistic goals or make plans independently of others.

ID.

Dr. Tilley

further opined that plaintiff would be unable to manage his personal
finances.

PAGEID 497.

5

Scott Lewis Donaldson, Ph.D., consultatively evaluated plaintiff for
the state agency on May 7, 2009.

PAGEID 578-82.

Plaintiff complained that

he was unable to work because of “difficulty with reading and understanding
things.”

PAGEID 578.

He experienced a depressed mood most of the day,

a diminished interest in activities, weight loss, insomnia, psychomotor
retardation,

fatigue,

concentration.

feelings

PAGEID 579.

of

worthlessness,

and

a

lack

of

Dr. Donaldson assigned a GAF of 50-60 and

diagnosed major depressive disorder and generalized anxiety disorder.
PAGEID 581.

Dr. Donaldson opined that plaintiff’s

ability to understand, remember and carry out one- or two- step
job instructions may be weak, but not impaired. His ability
to perform repetitive tasks does not appear to be lacking;
however, his level of motivation may be lacking moderately due
to his Axis I diagnoses. His ability to attend to relevant
stimuli is likely to be impeded moderately. His interpersonal
relationship skills, as well as his ability to relate to
supervisors and co-workers, may be limited moderately. His
ability to withstand the stress and pressures associated with
day-to-day work activity appears to be limited moderately,
based upon his Axis I diagnoses.
PAGEID 581.

Dr. Donaldson further opined that plaintiff “may need

assistance managing his day-to-day funds, as well as with additional
long-range financial affairs.”

Id.

Robelyn Marlow, Ph.D., reviewed the record for the state agency and
completed

a

psychiatric

review

technique

form

functional capacity assessment on June 8, 2009.

and

mental

residual

PAGEID 583-600.

Dr.

Marlow’s report suggested that plaintiff’s impairments did not meet or
equal a listed impairment.

PAGEID 583.

However, Dr. Marlow made no

mention of the verbal IQ score of 68 that was included in plaintiff’s school
records.

PAGEID 599. According to Dr. Marlow, plaintiff had mild

6

restrictions

in

activities

of

daily

living,

mild

difficulties

in

maintaining social functioning, and moderate difficulties in maintaining
concentration,

persistence,

or

pace.

PAGEID

593.

Plaintiff

was

moderately limited in four areas of understanding and memory, sustained
concentration

and

persistence,

social

interaction,

and

adaptation;

plaintiff was not significantly limited or there was no evidence of a
limitation in the remaining 16 categories of functioning.

PAGEID 597-98.

Dr. Marlow opined that plaintiff “is capable of simple, repetitive work
in a static environment with intermittent, superficial interactions with
others, no strict production or time quotas.”

PAGEID 600.

Douglas

Pawlarczyk, Ph.D., reviewed the record and, on November 30, 2009, affirmed
Dr. Marlow’s opinion.

PAGEID 611.

Plaintiff began treatment with Liberato Basobas, M.D., and Judy
Cohen, M.S.Q.M.H.S., of Columbus Area, Inc., in April 2010.

PAGEID 601-10.

Dr. Basobas saw plaintiff at least 18 times and Ms. Cohen saw plaintiff
approximately seven times between April 2010 and October 2011.
601-07, 613-21, 628-29, 642-49.

PAGEID

Ms. Cohen and Dr. Basobas completed a

mental impairment questionnaire on December 23, 2010, and diagnosed a major
depressive disorder, recurrent with psychotic features; mild mental
retardation; and dependent personality disorder.

PAGEID 622-27.

The

providers also indicated that plaintiff has experienced a pervasive loss
of interest in all activities, decreased energy, flat affect, impairment
in impulse control, difficulty thinking or concentrating, apprehensive
expectations, emotional withdrawal or isolation, sleep disturbance, and
loss of intellectual ability of 15 IQ points or more.

7

PAGEID 623.

Plaintiff has difficulty focusing and isolates himself due to his
medication.

PAGEID 622.

According to Ms. Cohen and Dr. Basobas,

plaintiff is unable to meet competitive standards with regard to his mental
ability to (1) carry out very short and simple instructions, (2) maintain
attention for a two hour segment, (3) sustain an ordinary routine without
special supervision, (4) make simple work related decisions, (5) ask simple
questions or request assistance, (6) understand and remember detailed
instructions, (7) carry out detailed instructions, (8) set realistic goals
or make plans independently of others, (9) deal with the stress of skilled
and unskilled work.

He cannot interact appropriately with the general

public or use public transportation because he is “mildly retarded.”
PAGEID 624-25.

Ms. Cohen and Dr. Basobas further opined that plaintiff

is moderately restricted in his activities of daily living and has marked
difficulty

in

maintaining

social

concentration, persistence, or pace.

functioning,
Id.

and

in

maintaining

Plaintiff does not interact

with anyone, socialize, or do chores, but he is able to dress and care for
himself.

PAGEID 622.

On December 6, 2011, Dr. Basobas reaffirmed his December 23, 2010
opinion. PAGEID 685.
III. February 2, 2012 Administrative Hearing
Plaintiff testified at the February 2, 2012 administrative hearing
that he lives with his mother.

PAGEID 122, 133.

He can cook macaroni but

cannot cook food that requires a recipe; he does no household chores and
he is “sometimes” able to shower or bathe regularly without being reminded.
He relies on his mother to help him with medication.

8

PAGEID 133-35.

Plaintiff previously had a driver’s license which was suspended due to
“child support.”
not see.

PAGEID 122.

PAGEID 128.

Plaintiff has eight children, whom he does

Plaintiff has never used alcohol or street drugs.

PAGEID 123, 137.
During a normal day, plaintiff stays at home and thinks; he does not
watch television, but he watches Ohio State. He sometimes listens to music.
PAGEID 128.

Plaintiff no longer goes out with his friends because he

“wasn’t able to cope with them.”

PAGEID 129.

He spends time with his uncle

and a friend, who brought him to the administrative hearing.

PAGEID

135-36.
Plaintiff testified that he was assigned to learning disabled classes
throughout school. He sometimes got into fights.

PAGEID 131.

Plaintiff

tried to play basketball in high school and he still plays basketball by
himself on occasion.

PAGEID 138.

Plaintiff was in prison in 2002 for

“about a year,” but he was not offered a job or classes while there.
123.

PAGEID

Prior to the administrative hearing, a counselor signed plaintiff

up for an adult literacy group at a church, which plaintiff attended.
PAGEID 139.
Plaintiff’s earnings record includes self-employment income in 2003,
2005, and 2008, when he worked for his father’s home remodeling business.
PAGEID 124.
the job.

Plaintiff sometimes made mistakes and suffered injuries on

PAGEID 132.

maintain the business.

After his father died, plaintiff was unable to
PAGEID 125.

Plaintiff testified that he is unable to work because he “can’t read
the paper and stuff like that,” has memory problems, and “sometimes” hears

9

voices.

PAGEID 129-31.

Plaintiff also testified that he has problems

working with people, who judge him for being different.

PAGEID 129-31,

136.
The vocational expert testified that plaintiff has no prior relevant
work.

PAGEID 140.

Asked to assume a claimant with plaintiff’s vocational

profile and the residual functional capacity (“RFC”) eventually found by
the administrative law judge,

PAGEID 141-42,

the vocational expert

responded that such an individual could perform such jobs as a laundry aide
(approximately 865,960 jobs nationally and 4,720 regionally), machine
operator (approximately 115,800 jobs nationally and 505 regionally), and
bench press operator (approximately 41,100 jobs nationally and 317
regionally).

Id.

IV. March 6, 2012 Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of “borderline intellectual functioning, depression;
generalized anxiety disorder; degenerative disc disease of the lumbar
spine; and obesity.”

PAGEID 67.

The administrative law judge also found

that plaintiff’s impairments, whether considered singly or in combination,
neither meet nor equal a listed impairment, including Listings 12.04 and
12.05.

PAGEID 68-70.

With regard to Listing 12.04, the administrative law judge found that
the requirements of paragraphs B and C are not met.

Id.

As to the

paragraph B criteria of Listing 12.04 (which also applies to the paragraph
D criteria of Listing 12.05), the administrative law judge determined that
plaintiff has “a mild restriction in activities of daily living; [] mild

10

difficulties in maintaining social functioning; moderate difficulties in
maintaining concentration, persistence or pace; and no episodes of
decompensation, each of extended duration.”

PAGEID 69.

The

administrative law judge found that the paragraph B criteria are not
satisfied because “the claimant’s mental impairments do not cause at least
two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes
of decompensation, each of extended duration.”

Id.

The administrative

law judge found that “the evidence fails to establish the presence of the
‘paragraph C’ criteria.”

Id.

With regard to Listing 12.05, the administrative law judge found that
the requirements of paragraphs A, B, C, and D are not met.

PAGEID 68-70.

As to the paragraph B criteria, the administrative law judge determined
that the requirements “are not met because the claimant does not have a
valid verbal, performance, or full scale IQ of 59 or less.”

PAGEID 70.

The administrative law judge noted that February 2008 cognitive testing
revealed a full scale IQ score of 55 and October 2008 testing revealed a
full scale IQ score of 52, but he found that the tests did not represent
a valid measure of plaintiff’s cognitive functioning.

Id.

[T]he record fails to establish the onset of mild mental
retardation with maladaptive behavior prior to the age of 22.
The records do show a Verbal IQ score of 68, when the claimant
was 10 years old; however, his other scores were significantly
higher, thereby indicating a learning disability and not true
mental retardation. Further, prior to age 22, there is no other
scores that were validly lower than 60. The more recent IQ
scores do not appear to be valid in light of the claimant’s
earlier history of significantly higher scores. The claimant
demonstrated a Full Scale IQ test score of 84 in 1986 and 1992.
Further, he demonstrated a Full Scale IQ score of 87 in 1989.
I find that the claimant’s more recent diminished IQ scores are
not valid, as both consultative examiners indicated poor effort
and underperformance. His lack of cooperation reduces the

11

probative value of those test results, rendering the scores
invalid.
Id. (emphasis in original).

As to the paragraph C criteria, the

administrative law judge found that the requirements 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.”

Id.

The administrative law judge went on to find that plaintiff has the
RFC to
perform light work as defined in 20 CFR 416.967(b) except he
can do no more than occasional crawling or kneeling and is
precluded from climbing ladders, ropes or scaffolds. He is
limited to simple repetitive tasks in a relatively static
environment characterized by infrequent changes in duties and
processes; where there is no more than superficial contact with
others, including the public, and no strict time or production
standards or fast-paced work.
PAGEID 68-70.

The administrative law judge relied on the testimony of the

vocational expert to find that plaintiff is able to perform a significant
number of jobs in the national economy despite his lessened capacity.
PAGEID 78-79.

Accordingly, the administrative law judge concluded that

plaintiff was not disabled within the meaning of the Social Security Act
from January 20, 2009, through the date of the administrative law judge’s
decision.

PAGEID 79.

V. 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.

12

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.

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.

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,
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, first, that the administrative law judge erred in
concluding that plaintiff does not meet the requirements of Listing 12.05C.
Statement of Errors, pp. 9-15.

Specifically, plaintiff argues that the

administrative law judge erred in rejecting the IQ scores reported by Drs.
Howard and Tilley, who administered IQ tests in February 2008 and October
2008, respectively, because those mental health experts did not conclude
that plaintiff’s scores were invalid.

Id. at pp. 11-12.

Plaintiff also

argues that the administrative law judge erred in finding that “the record
fails to establish the onset of mild mental retardation with maladaptive

13

behavior prior to the age of 22,” and in failing to find that plaintiff
has a physical or other mental impairment imposing an additional and
significant work-related limitation of function.

Statement of Errors, pp.

11-13.
Listing 12.05 requires, under appropriate circumstances, a finding
of disability based on the claimant’s intellectual disability:3
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.

See also Foster v. Harris, 279 F.3d 348, 354–55 (6th Cir. 2001).

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,
3

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.”

14

persistence, or pace.”

20 C.F.R., Pt. 404, Subpt. P., App. 1 § 12.00(C)(4).

See also West v. Comm'r Social 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 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 include a 1989 verbal

IQ score of 68. PAGEID 371. The administrative law judge rejected that score
as invalid,

PAGEID 70, reasoning that the schore “indicat[es] a learning

disability and not true mental retardation” because plaintiff’s other
scores “were significantly higher.”

Id.

Plaintiff’s school records indicate that, in 1989, when plaintiff
was 10 years of age, plaintiff achieved a verbal IQ score of 68, a
performance IQ score of 112, and a full scale IQ score of 87.

PAGEID 371.

There is, however, no expert evidence supporting the administrative law
judge’s finding that these scores are representative of a learning
disability rather than an intellectual disability.

The state agency

psychologists who reviewed the record made no mention of this IQ score.
It is also not clear why, as the administrative law judge suggests, the

15

mere presence of comparatively higher performance IQ or full scale IQ scores
would invalidate a lower verbal IQ score when the listing itself requires
only a valid verbal, performance, or full scale IQ score between 60 and
70.

Moreover, there is no indication that plaintiff acted in bad faith

or was uncooperative during the 1989 testing, nor is there any indication
that the administrative law judge considered plaintiff’s life skills, daily
activities, or prior work experience in invalidating the score.

See Brooks

v. Comm’r of Soc. Sec., No. 08-cv-2608, 2010 WL 1254323, at *4-5 (N.D. Ohio
Mar. 24, 2010) (collecting cases affirming an administrative law judge’s
invalidation of IQ scores).

If the administrative law judge had concerns

about the validity of the 1989 verbal IQ score, he had the authority to
retain the services of an expert to assist him in interpreting that score.
It was error, however, for the administrative law judge to render his own
opinion that he was not qualified to make.
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, the Court need not
and does not address plaintiff’s remaining arguments.
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.

16

28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b).

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).

December 26, 2013

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

17