Robinson v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATIONS re 1 Complaint: The Magistrate Judge RECOMMENDS that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/10/2014. (er1)

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

JOYCE M. ROBINSON,
Plaintiff,
Civil Action 2:13-cv-530
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Joyce M. Robinson, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for social security disability insurance benefits (“DIB”) and supplemental security income
(“SSI”). This matter is before the United States Magistrate Judge for a Report and
Recommendation on Plaintiff’s Statement of Errors (ECF No. 12), the Commissioner’s
Memorandum in Opposition (ECF No. 21), Plaintiff’s Reply (ECF No. 22), and the
administrative record. For the reasons that follow, it is RECOMMENDED that the Court
OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
I.

BACKGROUND

Plaintiff filed applications for DIB and SSI in June 2009, alleging that she became
disabled in April 2009, at age 50, due a number of physical issues. After Plaintiff’s claims were
denied initially and upon reconsideration, she requested a hearing before an administrative law
judge.

On February 7, 2012, Administrative Law Judge John Montgomery (“ALJ”) held a
hearing at which Plaintiff, represented by counsel, appeared and testified. (R. at 239–90.)
Vocational Expert Michael Klein (“VE”) also appeared and testified. On June 8, 2012, the ALJ
issued a decision finding that Plaintiff was not disabled within the meaning of the Social
Security Act. (R. at 11–24.) On April 5, 2013, the Appeals Council denied Plaintiff’s request
for review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 6–8.)
Plaintiff then timely commenced the instant action.
II.
A.

HEARING TESTIMONY

Plaintiff’s Testimony
Plaintiff testified that she lives with her sister and husband and that she does not have a

drivers’ license. She indicated that her family drives her around or that she uses public
transportation. Plaintiff reported that although she graduated from high school, she still
struggles with reading and writing. She stated that she believes she can no longer work because
she has difficulty breathing and following directions and also because she is physically “too
slow,” which she attributes to problems with her legs and rheumatoid arthritis in her hands. (R.
at 248.) She also stated that she has pain in her elbows, that she can only walk from her front
room to her bathroom, that she can only stand for five or ten minutes at a time, and that she can
only lift five or ten pounds. (R. at 252–53.) She indicated that her family helps her with her
finances and helped her apply for disability benefits.
Plaintiff testified that she can do housework, including making a bed, cleaning a sink,
cooking for herself, and laundry. She bathes and dresses herself, but sometimes experiences
difficulty dressing because of the bending involved. She sometimes reads magazines and

2

newspapers and likes reading story books. She indicated that she used to take walks to the
library and shops, but now needs to hold onto a cart because of her legs.
Plaintiff testified that she worked as a security guard and in that capacity received
training, kept records, and carried a firearm. She said she needed to stop working as a security
guard “[b]ecause [her] health started getting bad.” (R. at 246.) Plaintiff also reported that she
worked at a nursing home for approximately a year, but had difficulty reading information to the
patients. She also worked at Ponderosa as a baker. In that capacity, she mixed ingredients and
put them in the oven. She said that people needed to instruct her as to how many ingredients to
put in and that she was told she was too slow. Plaintiff also worked at Burger King for three
years as a cashier, cook, and drive-through worker. She testified that she had difficulty at the
cash register and worked too slowly at the cook’s job.
B.

Barbara Perry’s Testimony
Plaintiff’s sister, Barbara Perry, testified that Plaintiff was a slow learner and would need

to be told something multiple times before she learned it. She indicated that growing up,
Plaintiff could keep herself clean and make a sandwich, but that she needed help wither her
homework. Ms. Perry described Plaintiff as “gullible.” (R. at 269.) She reported that Plaintiff
had been married and raised three children, but that her children do not assist her anymore. She
indicated that Plaintiff had her children taken from her at some point because she allowed them
to spend time with a relative who was a child molester.
She also indicated that Plaintiff obtained the security job through a friend and that she
received assistance performing many of her past jobs. Ms. Perry testified that Plaintiff could
leave her notes, but that she would likely misspell words. She also reported that if Plaintiff were

3

given a grocery list, she could get the items on the list, but that she would also buy candy and
junk foods. She added that Plaintiff cooks some meals “very well.” (R. at 275.)
C.

Vocational Expert Testimony
The VE testified that Plaintiff performed her past work at the unskilled level even though

some of the jobs would be typically classified as skilled. The ALJ then asked the VE to consider
an individual with Plaintiff’s age, education, and work experience with the following nonexertional limitations: no reading or writing; requiring only simple, routine job skills; an
environment that is not fast-paced, does not have strict production requirements, and involves
only superficial interaction with others; and no team-building or consensus building involved.
The VE testified that such an individual would not be able to perform Plaintiff’s past relevant
work because of the limitation of no fast-paced work. According to the VE, however, there
would be a significant number of jobs in the regional and national economy she could perform,
including checker/weigher at the sedentary level, hand packager and order picker at the medium
level, and small product assembly and dining room attendant at the light level. The VE further
testified that upon addition of the limitations of no more than light exertion, preclusion from
work involving respiratory irritants, and low-stress were added, the individual would still be able
to perform the light work jobs he identified. Upon further questioning by Plaintiff’s counsel, the
VE indicated that competitive employment would be precluded if the individual also worked
more slowly than average and were limited to jobs involving one- or two-step instructions,
explaining that an unskilled job really requires one, two, and three steps.

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III. EDUCATION RECORDS
Records from Franklin County Schools reflect that Plaintiff graduated from high school,
that her IQ was within the “Slow Learner range,” and that she attended special education classes
full time. (R. at 135.) In high school, she tested at just above a 6th-grade level for math and
reading and between a fourth and fifth-grade level for spelling. (Id.)
IV.

MEDICAL RECORDS

In her Statement of Errors, Plaintiff does not challenge the Commissioner’s finding that
she does not have any severe physical impairments and that her allegations to the contrary are
not credible. Accordingly, the Court will focus its review of the medical evidence on Plaintiff’s
alleged non-exertional impairments.
A.

Lari Meyer, Ph.D.
In October 2010, psychologist Lari Meyer, Ph.D., evaluated Plaintiff. Plaintiff first

endorsed experiencing depression when she was 18. Plaintiff, however later contradicted this
indication and stated that her symptoms of depression did not begin until she was in her 30’s or
40’s, when she experienced symptoms everyday for two or three hours per day. (R. at 164–65.)
She reported that she was not currently being treated for depression and that she had no
recollection of ever being treated for depression. Plaintiff indicated that she worked in a factory
for eight years and also in a restaurant at various positions and as a security guard. She indicated
that she had been fired from several jobs due to her inability to concentrate and her depression.
She stated that she tried to exercise, that she completed house work, that she took turns cooking,
that she does not drive, and that she bathes/changes clothes every other day. Plaintiff endorsed
crying spells a “couple days a week.” (R. at 169.) Dr. Meyer described Plaintiff’s dress as

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appropriate, her grooming as adequate, her behavioral presentation as within the normal range,
and her social presentation as “somewhat unsophisticated.” (R. at 168.) She further described
Plaintiff’s speech, mood, and affect as normal and her insight and judgment as adequate.
Upon testing, Plaintiff attained a verbal comprehension index of 61, a perceptual
reasoning index of 71, and a full-scale IQ of 61, which Dr. Meyer presumed to be valid. Dr.
Meyer explained that she diagnosed Borderline Intellectual Functioning because “there is no
evidence provided of pre-age 18 IQ score below 70.” Dr. Meyers emphasized that the diagnosis
“should be ruled out if there is additional information regarding pre-age 18 IQ score below 70.”
(R. at 172.) Dr. Meyer also diagnosed Plaintiff with a reading disorder based upon her reports of
difficulty reading and her performance during testing. Finally, Dr. Meyer diagnosed Plaintiff
with depressive disorder not otherwise specified based upon Plaintiff’s reports of experiencing
symptoms of depression. She opined that Plaintiff would experience mild-to-moderate
impairment in her ability to understand, remember, and follow instructions, depending upon the
demands placed upon her; mild impairment in her ability to maintain attention, concentration,
persistence, and pace; moderate impairment in her ability to relate to others due, in part, to her
alleged depressive symptoms; and mild-to-moderate impairment in her ability to withstand the
stress and pressures associated with work, depending on whether the environment was high or
low stress.
B.

Mel Zwissler, Ph.D.
On October 28, 2010, reviewing psychologist Mel Zwissler, Ph.D., opined that Plaintiff’s

mental impairments caused mild limitations in her activities of daily living, moderate difficulties
in maintaining social functioning and in maintaining concentration, persistence, and pace and

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found no episodes of decompensation of extended duration. (R. at 177–84.) He concluded that
she did not satisfy the criteria of Listings 12.04 or 12.05. In the functional capacity section of
his assessment, Dr. Zwissler found that Plaintiff was partially credible and concluded that she
“retains the capacity to perform three step tasks in a routine environment that requires only
superficial interactions with others.” (R. at 184.)
C.

Appleseed Community Health
In June 2011, Plaintiff presented at Appleseed Community Health for a mental diagnostic

assessment. The counselor described Plaintiff as well groomed, pleasant, and of low-average
intelligence. (R. at 204.) Based upon Plaintiff’s reports, the counselor diagnosed her with
dysthymic disorder. (R. at 205.)
V.

THE ADMINISTRATIVE DECISION

On June 8, 2012, the ALJ issued his decision. (R. at 9-11.) At step one of the sequential
evaluation process,1 the ALJ found that Plaintiff had not engaged in substantial
1

Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
7

gainful activity since April 10, 2009, her alleged onset date. (R. at 16.) The ALJ found that
Plaintiff’s severe impairments included borderline intellectual functioning, depressive disorder,
and reading disorder. He relied upon the conclusions of Drs. Klyop, McCloud, and Padamadan,
to conclude that Plaintiff does not have any severe physical impairments and that her allegations
to the contrary are not credible. He further found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments
described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
At step four of the sequential process, the ALJ evaluated Plaintiff’s residual functional
capacity (“RFC”). The ALJ set forth Plaintiff’s RFC as follows:
The claimant has the residual functional capacity to perform a full range of work at
all exertional levels, but, from a mental standpoint, she is limited to simple, routine
tasks in a non fast-paced work setting without strict production quotas, more than
superficial interaction with others, or required reading and writing as part of the job.
(R. at 20.) The ALJ relied upon the VE’s testimony to conclude that given her RFC, she could
not perform her past relevant work but that jobs exist in significant numbers in the regional and
national economy that she could perform.
VI. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
8

defined as ‘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.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘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 v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
VII.

LEGAL ANALYSIS

In her Statement of Errors, Plaintiff asserts that the ALJ’s committed a number of errors
in assessing whether her cognitive impairments met or equaled Listing 12.05(C). More
specifically, she submits that the ALJ committed the following five errors: (1) “[t]he decision
violated the language of the listing and case law by requiring an IQ score or a diagnosis of
mental retardation before age 22”; (2) “[t]he decision erred in evaluating deficits in adaptive
functioning by considering areas of non-deficit instead of areas of deficit, evaluating claimant’s

9

overall level of adaptive functioning, and failing to find whether there were deficits in two areas
as required”; (3) “[t]he decision erred by requiring the deficits in adaptive functioning to be
significantly disabling by themselves, rather than be the intended diagnostic indicators
accompanying a low IQ score”; (4) “[t]he decision violated case law by finding that ordinary
activities are inconsistent with mental retardation, even though individuals with IQ 60-70 and
adaptive deficits can perform them—working, reading and writing, marrying, having children”;
and (5) “[t]he decision violated the text of the listing (requiring that the lowest of verbal,
performance, and full-scale scores be used) and case law by requiring that there be a diagnosis of
‘mild mental retardation’ instead of borderline intellectual functioning.” (Pl.’s Statement of
Errors 1, ECF No. 12.) Plaintiff seeks remand or reversal with a holding that Plaintiff meets
Listing 12.05(C).
A claimant’s impairment must meet every element of a Listing before the Commissioner
may conclude that he or she is disabled at step three of the sequential evaluation process. 20
C.F.R. § 404.1520; Duncan v. Sec’y of Health & Hum. Servs., 801 F.2d 847, 855 (6th Cir. 1986).
The claimant has the burden to prove that all of the elements are satisfied. King v. Sec’y of
Health & Hum. Servs., 742 F.2d 968, 974 (6th Cir. 1984). The regulations provide that in
making a medical equivalence determination, the Social Security Administration will “consider
the opinion given by one or more medical or psychological consultants designated by the
Commissioner.” 20 C.F.R. § 404.1526(c). Nevertheless, “[t]he burden of providing a . . . record
. . . complete and detailed enough to enable the Secretary to make a disability determination rests
with the claimant.” Landsaw v. Sec’y of Health & Hum. Servs., 803 F.2d 211, 214 (6th Cir.
1986). It is not sufficient to come to close to meeting the conditions of a Listing. See, e.g.,

10

Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1989) (Commissioner’s decision affirmed where
medical evidence “almost establishes a disability” under Listing).
Listing 12.05 covers impairments related to intellectual disability.2 Specifically, Listing
12.05 states:
[Mental retardation] refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
*
C.

*

*

A valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant workrelated limitation of function . . . .

20 C.F.R. 404, Subpt. P, App. 1 § 12.05. Thus, in order to satisfy Listing 12.05(C), a claimant
must demonstrate the following:
(1) he [or she] experiences “significantly subaverage general intellectual functioning
with deficits in adaptive functioning that initially manifested during the
developmental period” (i.e., the diagnostic description); (2) he [or she] has a “valid
verbal, performance, or full scale IQ of 60 through 70"; and (3) he [or she] suffers
from “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.”
West v. Comm’r of Soc. Sec., 240 F. App’x 692, 697-98 (6th Cir. 2007) (quoting 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.05(C)). To satisfy the diagnostic description, a claimant must
demonstrate three factors: “(1) subaverage intellectual functioning; (2) onset before age twentytwo; and (3) adaptive-skills limitations.” Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675
2

In August 2013, the term “mental retardation” was replaced with “intellectual
disability.” To avoid any confusion with the ALJ’s decision and the parties’ briefing, the Court
will use the term “mental retardation.”
11

(6th Cir. 2009). A claimant may meet the onset requirement either directly or circumstantially.
In this case, the ALJ concluded that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals the severity of Listing 12.05(C). More
specifically, he concluded that Plaintiff did not satisfy her burden to prove that she had
significantly subaverage mental functioning that manifested itself prior to age twenty-two and
also failed to demonstrate the requisite deficits in adaptive functioning. The ALJ reasoned, in
part, as follows:
Although the claimant attained IQ scores below 70 in October 2010 . . ., there
is no evidence of a pre-age 22 IQ score below 70 and her actual level of adaptive
functioning is inconsistent with the requirements of Listing 12.05C, which addresses
mental retardation. Her scholastic record indicated that she had an IQ in the slow
learner range . . ., which does not reasonably translate into an assessment of mental
retardation. Rather, her reading and math abilities placed above the sixth-grade
level, and Dr. Meyer diagnosed borderline intellectual functioning rather than mental
retardation. In any event, evidence of adult mental retardation would not be
dispositive absent evidence of significantly subaverage mental functioning or deficits
of adaptive functioning prior to age 22 . . . .
With respect to the claimant’s actual functioning, she has reported a history
of work activity, including as a dietary aide, security officer, packager, fast food
worker, baker, and cashier . . . . At the hearing, it was argued that she received
special assistance with her past work and was hired at some jobs due to [] personal
contacts rather than ability, but no documentation was submitted to substantiate such
claims. She reported that she could read and write . . . ., and she thoroughly
completed her own disability forms . . . . She married and raised several children.
In conclusion, her actual level of functioning is inconsistent with a diagnosis of
mental retardation.
(R. at 18 (internal citations omitted).)
The Undersigned finds that the ALJ reasonably concluded that Plaintiff’s mental
impairment failed to meet or satisfy Listing 12.05(C). Indeed, Dr. Zwissler, who reviewed the
entire record, explicitly concluded that Plaintiff did not satisfy the criteria of Listing 12.05. (R.
at 184.) Plaintiff’s arguments to the contrary are unavailing because they rest upon faulty
12

premises and improperly seek to shift the burden to the ALJ to disprove that she did not satisfy
the Listing. The Undersigned now addresses each of Plaintiff’s contentions of error, turning first
to her first and fifth contentions of error before addressing the remaining arguments, all of which
relate to the ALJ’s consideration of her adaptive functioning.
A.

Pre-Age 22 IQ Score and Diagnosis Borderline Intellectual Functioning
Plaintiff’s first and fifth assertions of error fail to persuade because they are premised

upon an inaccurate characterizations of the ALJ’s decision. In her first contention of error,
Plaintiff submits that the ALJ erroneously required an IQ score or diagnosis of mental
retardation before age 22. Certainly, the absence of a qualifying IQ score during the
developmental period is not fatal to a Listing 12.05(C) inquiry. See West, 240 F. App’x at 699
(“While the claimant may use a qualifying IQ score before the age of 22 to demonstrate that his
subaverage intellectual functioning initially manifested during his developmental period . . . a
claimant is by no means required to produce an IQ score obtained prior to age 22.”). Here,
however, contrary to Plaintiff’s assertion, the ALJ did not state that pre-age 22 IQ scores or a
diagnosis of mental retardation was dispositive to his Listing 12.05(C) analysis. Rather, the
above-quoted language from his decision reflects that the ALJ noted the absence of a pre-age 22
IQ score or diagnosis along with other evidence of Plaintiff’s intellectual and adaptive
functioning within the context of his assessment of whether she manifested the requisite deficits
during the developmental period.
Plaintiff similarly mischaracterizes the ALJ’s decision in her fifth statement of error,
where she posits that the ALJ erroneously required a diagnosis of mild mental retardation instead
of borderline intellectual functioning (“BIF”). Plaintiff correctly points out that a diagnosis of

13

BIF “does not rule out the possibility of a finding of mental retardation” under Listing 12.05(C)
Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013). But the ALJ did not
impose such a requirement. Rather, after finding that BIF was one of Plaintiff’s severe
impairments, he properly proceeded to analyze whether her impairments met or equaled Listing
12.05(C). Within this analysis, the ALJ noted that the consultative psychologist, Dr. Meyer, had
diagnosed Plaintiff with BIF rather than mental retardation. The ALJ did not err in his
consideration of Dr. Meyer’s BIF diagnosis. See, e.g., Cooper v. Comm’r of Soc. Sec., 217 F.
App’x 450, 452 (6th Cir. 2007) (finding the absence of any mental retardation diagnosis to be a
relevant consideration); West, 240 F. App’x at 698 (same). Plaintiff’s additional contention
within this statement of error, namely that the ALJ erred in relying upon Dr. Meyer’s diagnosis
because it was flawed given that Dr. Meyer did not indicate that she had reviewed the school
records and appears to require a qualifying IQ score, is likewise unpersuasive. First, Dr. Meyer
did not state that a qualifying IQ during the developmental period was required for a diagnosis of
mental retardation; rather, she was explaining that in the absence of such a score (and any other
evidence) she declined to make such a diagnoses. Second, reviewing psychologist Dr. Zwissler
reviewed the school records, and, like Dr. Meyer, diagnosed BIF instead of mental retardation.
Even if, however, the ALJ committed either of the errors Plaintiff outlines in her first and
fifth contentions of error, any such error would be harmless so long as substantial evidence
supports his finding that Plaintiff failed to demonstrate the requisite deficits in adaptive
functioning. See West, 240 F. App’x at 698 (affirming ALJ’s decision, even though he
mistakenly implied that Listing 12.05(C) required a qualifying IQ score before the age of 22
because the claimant failed to produce evidence of deficiencies in adaptive functioning and

14

medical evidence supported the ALJ’s conclusion). Accordingly, the Undersigned now turns to
Plaintiff’s second, third, and fourth contentions of error, all of which challenge the ALJ’s
findings regarding the deficits-in-adaptive-functioning requirement of Listing 12.05(C).

B.

Deficits in Adaptive Functioning
In Plaintiff’s second through fourth contentions of error, she maintains that the ALJ erred

in evaluating her adaptive functioning in a number of ways, including considering her overall
adaptive functioning rather than focusing on areas of deficit, requiring the deficits to be
disabling, and considering ordinary activities to be inconsistent with mental retardation.
“The adaptive skills prong evaluates a claimant’s effectiveness in areas such as social
skills, communication skills, and daily-living skills.” Hayes, 357 F. App’x at 677. Although
Listing 12.05 does not define “adaptive functioning,” another portion of the Listings defines
“adaptive activities” as “cleaning, shopping, cooking, taking public transportation, paying bills,
maintaining a residence, caring appropriately for your grooming and hygiene, using telephones
and directories, and using a post office.” 20 CFR Pt. 404, Subpt. P, App. 1 § 12.00(C)(1).
Further, in considering Listing 12.05, the Sixth Circuit has noted that “[t]he American
Psychiatric Association defines adaptive-skills limitations as ‘[c]oncurrent deficits or
impairments . . . 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.’” Id. (quoting DSM-IV-TR at 49).
The plain language of Listing 12.05 does not identify how severe limitations must be to
qualify as “deficits in adaptive functioning.” Pendleton v. Comm’r of Soc. Sec., No.

15

1:10–cv–650, 2011 WL 7070519, at *11 (S.D. Ohio Dec. 23, 2011). Nevertheless, case law
from the Sixth Circuit and other federal courts, suggests that a claimant must have relatively
significant deficits to satisfy the Listing. See, e.g., West, 240 F. App’x at 698–99 (suggesting
that a claimant’s ability to understand and retain simple instructions; maintain concentration and
attention for basic tasks; interact effectively with co-workers; and deal with work stress all
supported a finding of no deficiencies in adaptive functioning); Harris v. Comm’r of Soc. Sec.,
330 F. App’x 813, 815–16 (11th Cir. 2009) (claimant who did well in special education classes;
was able to perform several jobs; and who had mild limitations in daily living activities, social
functioning, and concentration did not have the type of deficits in adaptive functioning required
for Listing 12.05(C)); McMillan v. Comm’r of Soc. Sec., No. 1:10–cv–00308, 2012 WL 90264,
at *6 (W.D. Mich Jan. 11, 2012) (holding that insignificant or trivial deficits were not sufficient
to satisfy Listing 12.05 and ALJ’s finding of moderate restrictions in daily living did not require
a finding of deficits in adaptive functioning).
In this case, contrary to Plaintiff’s assertion, the ALJ did not improperly focus only on
the areas in which she did not display deficits. Instead, he considered all of the record evidence,
including her school records, her past work history, her daily activities, her family history, the
medical evidence, the competency with which she completed her disability forms, and Plaintiff
and her sister’s testimony at the hearing. Significantly, the ALJ found Plaintiff’s testimony
regarding her limitations to be only partially credible, a finding that she does not challenge and
that is undeniably supported by substantial evidence.
Nor did the ALJ require her deficits to be disabling. Rather, the ALJ ultimately agreed
with Drs. Zwissler and Meyer that Plaintiff had only mild or moderate deficits in adaptive

16

functioning and concluded that these deficits were not sufficient to satisfy the diagnostic criteria
of Listing 12.05. (See R. at 174–75, 180–84, and 19–22.) With regard to her capacity to work,
the ALJ agreed with Dr. Zwissler that Plaintiff has the ability to understand and perform simple,
routine tasks in a restricted environment that requires only superficial interactions with others.
(See R. at 174–75, 180–84, and 19–22.)
Finally, the ALJ did not err in considering Plaintiff’s work, marriage, and family history,
among other indicators of her functioning, in evaluating her adaptive functioning. See, e.g.,
Justice v. Comm’r, 515 F. App’x 583, 587 (6th Cir. 2013) (substantial evidence supported ALJ’s
“conclusion that [claimant] did not display requisite deficits in adaptive functioning initially
manifested during the developmental period” where claimant had lengthy work history, was
enrolled in special education classes until he dropped out in the ninth or tenth grade, the medical
reports supported the less severe diagnoses of BIF rather than mental retardation, and evidence
supported the conclusion that he was able to adequately manage his activities of daily living).
VIII.

CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
IX.

PROCEDURE ON OBJECTIONS

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 in

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question, as well as the basis for objection. 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.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: July 10, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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