Farnsworth v. Commissioner of Social Security

Filing 21

OPINION AND ORDER - Plaintiffs Statement of Errors are OVERRULED and the Commissioner of Social Security's decision is AFFIRMED. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/31/2015. (sln1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
AARON FREEMAN FARNSWORTH,
Plaintiff,
Civil Action 2:13-cv-923
Magistrate Judge Elizabeth P. Deavers
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Aaron Freeman Farnsworth, brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying his application for supplemental security income. 1 This matter is
before the Court for disposition based upon the parties’ full consent (ECF No. 12), and for
consideration of Plaintiff’s Statement of Errors (ECF No. 14), the Commissioner’s Memorandum
in Opposition (ECF No. 20), and the administrative record (ECF No. 11). For the reasons that
follow, the Court OVERRULES Plaintiff’s Statement of Errors and AFFIRMS the
Commissioner’s decision.

1

The Court notes that the administrative record only contains an application for disability
insurance benefits. The ALJ and the Plaintiff only reviewed the claim under supplemental security
income.

1

I.

BACKGROUND

Plaintiff filed his application for benefits on March 21, 2010, alleging that he has been
disabled since August 2, 2008, at age 23. (R. at 121-24.) Plaintiff alleges disability as a result of
severe depression, anxiety, panic attacks, and paranoia. (R. at 146.) Plaintiff’s application was
denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an
administrative law judge. Administrative Law Judge H.J. Barkley III (the “ALJ”) held a video
hearing on January 3, 2012, at which Plaintiff, represented by counsel, testified. (R. at 37-46.)
Vocational Expert Nancy Shapero (the “VE”) also testified at the hearing. (R. at 47-53.) On
January 23, 2012, the ALJ issued a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (R. at 11-27.) On August 6, 2013, the Appeals Council
denied Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final
decision. (R. at 1-5.) Plaintiff then timely commenced the instant action.
II.
A.

HEARING TESTIMONY

Plaintiff’s Testimony
Plaintiff testified that he is married and has never had a driver’s license. (R at 37.) He

testified that he never took the driver’s test because he was in an accident while attempting to
learn to drive. (R. at 38.) Plaintiff attended school until the ninth grade. (Id.) Plaintiff testified
that he last worked in 2008 doing landscaping. He stated that the job lasted for a month and a
half and “didn’t end very good.” (Id.) Plaintiff testified that he quit because his “nerves were
shot, and [he] was going into anxiety attacks. . .” (R. at 39.) Plaintiff testified that his other
work attempts were also unsuccessful, noting that he had trouble with anxiety and social
interactions. (R. at 37-40.) He also testified that he had problems attending work. Id.

2

Plaintiff testified that he never received treatment at a mental health facility or had been
hospitalized due to mental health problems. (R. at 40.) Plaintiff testified that he experiences a
panic attack a “couple of times a day.” (Id.) He described these attacks as feeling like he is
having a heart attack. (Id.)
Plaintiff testified that during a typical day, he eats and watches television. (R. at 42.)
Plaintiff testified that he no longer does household chores because of problems with his back,
and that he sleeps ten to twelve hours per night. (R. at 42-43.) Plaintiff also testified to having
daily lower back pain that runs down his leg. (R. at 44.) Plaintiff estimated that he can sit for
ten to fifteen minutes before he has to stand up and that he can stand or walk for ten minutes. (R.
at 45.) He testified to being able to lift approximately ten pounds. (Id.) Plaintiff further testified
that he goes to the grocery store with his wife and helps carry groceries. (R. at 45-46.)
B.

Vocational Expert Testimony
The VE testified that Plaintiff has no past relevant work. (R. at 48.) The ALJ proposed a

hypothetical to the VE regarding a hypothetical individual with Plaintiff’s age, education, work
experience, and residual functional capacity as assessed by the ALJ. Id. The VE testified that
the hypothetical individual was capable of performing representative occupations such as
dishwasher, with 2,220 regional jobs and 350,000 jobs in the national economy; janitor, with
4,500 jobs in the regional economy and over 370,000 in the national economy; and a hand
packer, with 2,100 jobs in the regional economy and 400,000 in the national economy. (R. at
49.) The VE testified that her testimony does not conflict with the Dictionary of Occupational
Titles (“DOT”). (R. at 51-52.)

3

When examined by Plaintiff’s counsel, the VE testified that if the hypothetical individual
was markedly limited in dealing with the public and could only work in a very small setting,
consisting of 2-3 additional workers, where he could not depend upon another employee and had
no public contact, he could still perform the above-named jobs. (R. at 52-53.) The VE testified
that if the hypothetical individual was off task more than 15-20% of the workday, he would not
be able to sustain substantial gainful activity. (R. at 53.)
III.

PLAINTIFF’S FUNCTION REPORT

Plaintiff’s wife completed a function report on his behalf. (R. at 168.) When asked to
describe what he does from the time he wakes up until going to bed, Plaintiff submitted: “I brush
my teeth, brush my hair, get something to eat, watch tv. Sit outside, try to get chores done
around the house.” (R. at 162.) He indicated that he can no longer be around people. Id. He
submitted that he does not need help with personal care, but needs reminders to take care of
grooming such as shaving. (R. at 163.) He stated that he prepares his own meals (sandwiches or
microwavable meals) each day and it usually takes him about ten minutes. Id. Plaintiff stated
that he vacuums, does dishes, and mows grass. (R. at 164.) Plaintiff also stated that he sits
outside to get fresh air and takes a walk when his nerves are bad. Id. He further submitted that
he is able to pay bills, count change, handle a savings account, and use a checkbook/ money
orders. (R. at 165.)
Plaintiff described his hobbies as watching tv, fishing, and playing basketball. Id. He
stated that he does these activities often. Id. He submitted that he does not spend time with
others and the only place he goes to on a regular basis is his doctor’s office. Id. He also stated
that he has trouble getting along with others because he gets nervous and has panic attacks. (R.
4

at 165-66.) Plaintiff estimated that he can walk for thirty minutes before needing a rest and
stated that he can pay attention “pretty good,” but he does not finish what he starts. He also said
he could follow written instructions and spoken instructions “good” and that he gets along
“good” with authority figures. (R. at 166.)
IV.
A.

EDUCATIONAL AND RELEVANT MEDICAL RECORDS 2

Marietta City Schools- Educational Records
Records from the Marietta City Schools show that Plaintiff attended special education

classes and had an Individualized Education Program (“IEP”). At age 6, Plaintiff was
administered the Stanford-Binet Intelligence Scale, which resulted in a composite score of 93. As
a result of this evaluation, Plaintiff began receiving Learning Disabilities and Speech/Language
services in second grade. (R. at 207.) He received services from the learning disabled program
from second through fourth grade. (R. at 206.)
When Plaintiff was in fourth grade, at nine years and ten months old, he attained a Full
Scale IQ of 69 as measured by the Wechsler Intelligence Scale for Children, 3rd Edition
(“WISC-III”), with a Performance IQ of 66 and a Verbal IQ of 76. (R. at 207.) Plaintiff’s
Devereux Behavior Rating Scale yielded a Depression scaled score of 16 and was rated as being
very significant. Id. On the Vineland Adaptive Behavior Scales, Plaintiff scored 72 on both
Communication and Daily Living and had a Socialization Score of 92 indicating a relative

2

The ALJ determined that Plaintiff had a number of severe physical impairments, including
degenerative disk disease at L3-4, L4-5 and L5-Sl and a small annular tear at L3-4 with lumbar pain and
left lower extremity radicular pain. (R. at 16.). On appeal, however, Plaintiff’s arguments relate only to
mental impairments. (See ECF No. 14). Consequently, this Opinion and Order considers only evidence
and determinations relating to Plaintiff’s mental impairments.

5

strength. Id. Based on the preceding scores, it was determined that Plaintiff qualified for
services from the developmentally handicapped program from fifth grade forward. (R. at 207.)
When Plaintiff was fifteen years old, in the ninth grade, his intervention team, which
consisted of his mother, teacher, and school psychologists, completed a Multi-Factored
Evaluation. (R. at 206-215.) On the evaluation, his teacher noted that Plaintiff’s poor attendance
and frequent tardiness interfered with his progress. (R. at 207.) She noted that he needs to
develop better social skills and that he does not read orally although she felt his reading skills
were a relative strength. (R. at 207.) At fifteen, Plaintiff was again administered the WISC-III
I.Q. test. (R. at 209.) Results revealed a verbal IQ of 64, performance IQ of 57, and a full scale
IQ of 56. Id. The examiner noted that during the evaluation, Plaintiff “was very relieved and
excited when he did something well” and “his responses indicated that he was listening
attentively.” (Id.) The examiner noted that Plaintiff’s test results indicated that he was
functioning within the mildly mentally impaired range of intellectual functioning. Id.
The school also tested Plaintiff’s “Broad Independence,” which is a “measure of overall
adaptive behavior based on an average of four different areas of adaptive functioning: motor
skills, social interaction and communication skills, personal living skills, and community living
skills.” (R. at 211.) Testing revealed that Plaintiff’s functional independence was significantly
below average in all areas. Id. Plaintiff’s behavior was also tested and it was determined that
“[Plaintiff] exhibited a weakness in associating with other people, maintaining attention to the
task at hand and cooperating. His teacher stated that he specifically has problems with short
attention span on a daily basis, sometimes wanting sleep and intermittently refusing to do his
work.” Id. Plaintiff’s General Maladaptive Index score was found to be moderately serious. Id.
6

Plaintiff was also administered a Street Survival Skills Questionnaire (“SSSQ”). (R. at
212.) Records indicate that the SSSQ is “a direct measure of adaptive behavior since the student
is asked to answer questions and to perform certain skills. On the SSSQ, [Plaintiff’s] Survival
Skills Quotient falls squarely within the average range. This was considerably higher than his
measured ability.” Id. The examiner concluded that “the results of the adaptive behavior scale
indicate that [Plaintiff] should have adequate skills to function independently at home, in his
classroom, and in the community.” Id.
The records indicate that Plaintiff failed all of his Proficiency Exams and that he received
mostly “Ds” and one “C” in his classes. (R. at 207.) The records also note that “[a]s of 4/10/00,
Aaron has been absent 9 days and tardy 10 days since he returned to school from the Juvenile
Center in January 2000. . . . truancy has been the main disciplinary issue.” Id.
The intervention team concluded that “with a Full Scale IQ of 56 and multiple adaptive
behavior deficits, it appears that [Plaintiff] continues to qualify for services in the
developmentally handicapped program.” (R. at 214.)
B.

Ohio Department of Rehabilitation and Correction
At age twenty-two, while incarcerated, Plaintiff’s general mental ability was measured by

the General Ability Measure for Adults (“GAMA”). (R. at 450.) Plaintiff earned a GAMA IQ
score of 107, which falls in the average range of mental ability. His GAMA IQ score was in the
68th percentile. Id.
C.

Gary Sarver, Ph.D.
On May 7, 2010, Plaintiff was examined by consulting psychologist, Dr. Sarver, on

behalf of the Bureau of Disability Determination. (R. at 216-21.) Dr. Sarver reported that a
7

review of Plaintiff’s early school history revealed that he did average academically, but was
suspended from Learning Disabled academic classes. In high school, he did poorly academically
and was suspended from school. Plaintiff reported that he quit school in the ninth grade because
“[he] was in trouble all the time.” (R. at 217.)
When discussing his work history, Plaintiff reported that he was fired from McDonald’s
after four months because “of not getting there on time.” Id. He reported that his last job was
landscaping. He reported that he worked the job for a month and then quit because “people
made [him] nervous.” Id. He was fired from another job “for not going there.” (Id.) Plaintiff
reported that he cannot work now because his “heart races, and people make [him]
uncomfortable.” Id. Dr. Sarver found that Plaintiff’s independent living skills appeared to be
adequate, but that his job history is poor. (R. at 220.)
On mental status examination, Dr. Sarver noted that Plaintiff appeared to be interested
and motivated, with appropriate attentional pace and persistence. (R. at 218.) Plaintiff was
noted to have a constricted affect, a somewhat tense and anxious mood, and to appear socially
awkward. (Id.) Dr. Sarver found Plaintiff was cooperative and responded appropriately during
the evaluation. On examination, Plaintiff’s memory registration appeared to be functionally
intact; short-term memory and attention appeared to be marginally intact; his long-term memory
appeared to be functionally intact; reading and writing appeared to not be functional; abstract
reasoning was within the low-average range; and common sense and judgment was in the lowaverage range. (R. at 219.) In addition, Dr. Sarver found Plaintiff’s “insight to be poor with
little understanding of his intrapsychic dynamics or the emotional complexities of interpersonal
relationships.” Id. He also found that Plaintiff has poorly developed ego skills and that he is
8

likely to have difficulty organizing, structuring, and working towards goals. Id. Dr. Sarver
further noted that Plaintiff is “likely to have difficulty containing his anger, managing his
frustration, and controlling his impulses. He is likely to depend upon other people and/or
situations to structure life for him.” Id.
Dr. Sarver diagnosed Plaintiff with an adjustment disorder with depression and anxiety,
alcohol abuse (in early sustained remission), and personality disorder NOS with avoidant
features. (R. at 220-21.)
Dr. Sarver concluded that, in terms of his functioning, Plaintiff’s “borderline level of
intellectual functioning in conjunction with his poorly developed ego skills, and social anxiety,
places him within the moderately impaired range with a [Global Assessment of Functioning
(“GAF”) Score] of 55.” (R. at 220.)
Dr. Sarver opined that Plaintiff’s ability to relate to others, including supervisors, was
moderately impaired by his personality disorder, which is predictive of intense and unstable
interpersonal relationships. (R. at 221.) Plaintiff’s ability to understand and follow simple one
and two step job instructions was rated as mildly impaired secondary to his apparently borderline
level of intellectual functioning. Id. Dr. Sarver opined that Plaintiff’s ability to withstand daily
work stresses was moderately impaired secondary to personality disorder and concomitant
poorly developed ego skills. Id. According to Dr. Sarver, Plaintiff would not be able to manage
his benefits in his own best interest due to his past history of alcohol abuse. Id.
On June 21, 2010, Plaintiff was evaluated again by Dr. Sarver to determine his level of
intellectual functioning. (R 223-24.) On the Wechsler Adult Intelligence Scale - Fourth Edition
(WAIS-IV), Plaintiff achieved a Verbal Comprehension IQ of 74 (4th percentile), a Perceptual
9

Reasoning IQ of 67 (1st percentile), Working Memory IQ of 69 (2nd percentile), Processing
Speed IQ of 62 (1st percentile), and a Full Scale IQ score of 63 (1st percentile). (R. at 223) Dr.
Sarver concluded that the test results appeared to be valid. (R. at 223.) He found that Plaintiff’s
overall level of functioning was within the mentally retarded range. Id. Dr. Sarver further noted
that Plaintiff’s school age IQ testing results appeared to be valid and consistent with his
placement in developmentally handicapped classes in school. (Id.)
D.

State-Agency Evaluation
State agency psychologist Dr. Dietz reviewed the record on July 15, 2010, and completed

a Mental Residual Functional Capacity Assessment. Dr. Dietz found that Plaintiff was markedly
limited in his ability to interact appropriately with the general public. (R. at 227.) Dr. Dietz also
found that Plaintiff was moderately limited in his abilities to carry out detailed instructions; to
maintain attention and concentration for extended periods; to perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an
ordinary routine without special supervision; to work in coordination with or proximity to others
without being distracted by them; to 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; to accept instructions and respond
appropriately to criticism from supervisors; to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; to maintain socially appropriate behavior and
to adhere to basic standards of neatness and cleanliness; to respond appropriately to changes in
the work setting; to travel in unfamiliar places or use public transportation; and to set realistic
goals and make plans independently of others. (R. at 226-27.)
10

Dr. Dietz concluded that the key question in this claim is “what is [Plaintiff’s] level of
intellectual functioning.” (R. at 228.) He explained that “[w]hile there are scores suggestive of
mental retardation[,] other information (adaptive functioning) suggest otherwise. It appears that
his socialization difficulties may have impaired his willingness to participate in past testing. His
level of day to day functioning appears to be consistent with the Borderline range of Intellectual
Functioning.” Id. According to Dr. Dietz, Plaintiff’s allegations appear to be consistent and
credible. Dr. Dietz concluded that Plaintiff appears to be capable of “completing 3 to 4 step
tasks that do not have strict production standards or schedule and do not require more than
superficial interactions with others and do not require him to read or write as part of the job
duties.” (R. at 228-29.)
V.

THE ADMINISTRATIVE DECISION

On January 23, 2012, the ALJ issued his decision. (R. at 11-27.) At step one of the
sequential evaluation process, 3 the ALJ found that Plaintiff had not engaged in substantially

3

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 416.920(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?
11

gainful activity since March 12, 2010. (R. at 16.) At step two, the ALJ found that Plaintiff has
the severe impairments of degenerative disk disease at L3-4, L4-5, and L5-Sl and a small annular
tear at L3-4 with lumbar pain and left lower extremity radicular pain; depression; anxiety with
panic attacks and paranoia; and borderline intellectual functioning. (Id.) The ALJ also found
that Plaintiff has non-severe impairments of mild median neuropathy; hypertension; constipation;
gastroesophageal reflux disease (GERD); tachycardia; status post percutaneous correction of
atrial septal defect (ASD) with no sequale; and alcohol abuse. (Id.)
At step three in the sequential process, the ALJ 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. (R. at 17.)
At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
After careful consideration of the entire record, the [ALJ] finds that the claimant
has the residual functional capacity to perform medium work as defined in 20
CFR 416.967(C). He can sit for 2 hours and stand/walk 6 hours of an 8-hour
workday. He may frequently climb ramps and stairs, balance, stoop, kneel,
crouch and crawl, but may only occasionally climb ladders, and scaffolds. He
may have only occasional exposure to hazards such as unprotected heights and
moving machinery, extreme cold, extreme heat and vibration. He is further
limited to simple, routine and repetitive tasks and is not able to perform at a
production rate pace, but can perform goal oriented to work. He is limited simple
to work-related decisions. He may have only occasional interaction with
supervisors, coworkers and the public. He is limited to few if any changes in the
workplace setting.
(R. at 19.) In reaching this determination, the ALJ gave significant weight to the opinion of
consultative examiner, Dr. Sarver. (R. at 25.) The ALJ also gave significant weight to the

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
12

opinion of state-agency psychologist, Dr. Dietz, finding his opinion well supported by the
medical evidence of record as a whole. (Id.)
At step five, relying on the VE’s testimony, the ALJ concluded that other jobs exist in
significant numbers in the national economy that Plaintiff can perform. (R. at 26-27.) He
therefore concluded that Plaintiff was not disabled under the Social Security Act. (R. at 27.)
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. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 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 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 & Human 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.
13

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.

ANALYSIS

In his Statement of Errors, Plaintiff asserts that the ALJ erred in failing to find that he met
the requirements of Listing 12.05(C). He also asserts that the ALJ improperly applied post-step
three findings at step three of the sequential evaluation. (ECF No. 14.)
A.

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.
14

1986). It is not sufficient to come to close to meeting the conditions of a Listing. See, e.g.,
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. Specifically, Listing
12.05 provides as follows:
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 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 work-related 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)).
In the instant action, in his discussion of Listing 12.05(B) and 12.05(C), the ALJ found as
follows:
15

As for the “paragraph B” criteria, they are not met because the [Plaintiff] does not
have a valid verbal, performance, or full scale IQ of 59 or less. As discussed later
in the body of this decision, at the chronological age of 15 years and 0 months, the
[Plaintiff] attained performance IQ of 57 and full scale IQ of 56. However, it was
noted that motivation and effort was somewhat lacking during this evaluation.
Adaptive behavior was suggestive of high functioning (Exhibit 1F).
Finally, the “paragraph C” criteria of listing 12.05 are not met because the
[Plaintiff] 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. As discussed later in the body of
this decision, Dr. Sarver evaluated the [Plaintiff] on June 21, 2010, and reported
that the [Plaintiff] attained achieved full scale IQ score of 63, which placed the
[Plaintiff’s] overall level of intellectual functioning in the mentally retarded
range. However, although Dr. Sarver felt that the IQ score was valid, he also
opined that the [Plaintiff’s] intellectual abilities were in the borderline range
(Exhibits 2F and 3F). Furthermore, Listing 12.05 requires deficits in adaptive
functioning before age 22, not just low IQ scores.
(R. at 19.) Thus, with regard to the diagnostic description, the ALJ found that Plaintiff’s
intellectual abilities were in the borderline range and that he did not demonstrate deficits in
adaptive functioning before age twenty-two. The ALJ further found that Plaintiff did not meet
the criteria of paragraph C because Plaintiff does not have a valid IQ score of 60 through 70 and
a physical or other mental impairment imposing an additional and significant work-related
limitation or function. Plaintiff contends that that ALJ erred in finding that he does not meet
Listing 12.05(C).
1.

ALJ’s Evaluation of the Diagnostic Description

To meet listing 12.05(C), “it is not enough for a claimant to point to one IQ score below
71; the claimant must also satisfy the ‘diagnostic description’ of mental retardation in Listing
12.05.” Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450, 452 (6th Cir. 2007).

16

To satisfy the diagnostic description, a claimant must demonstrate three factors: “(1) subaverage
intellectual functioning; (2) onset before age twenty-two; and (3) adaptive-skills limitations.”
Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009).
“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 C.F.R. 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. 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); Hayes, 357 F. App’x at 677
17

(adaptive skills not deficient where claimant could care for self and husband, cook meals, do
laundry, shop, manage finances, and take public transportation); 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).
The instant case presents a close call, as Plaintiff has presented substantial evidence that
he experiences “significantly subaverage general intellectual functioning with deficits in adaptive
functioning that initially manifested during the developmental period.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 12.05(C). First, educational records demonstrate that he was in a learning disabled
program from second through fourth grade. (R. at 206.) In fourth grade, at nine years old, after
testing revealed that he had a full scale IQ of 69 and a Depression scaled score of 16 on the
Devereux Behavior Rating Scale, Plaintiff was placed in the developmentally handicapped
program. He remained in the developmentally handicapped program through ninth grade when
he dropped out of school. Id.
Additionally, according to his Multi-Factored Evaluation Report, Plaintiff underwent
more testing at age fifteen that demonstrates that he had subaverage intellectual functioning with
adaptive deficits. For example, he scored a verbal IQ of 64, performance IQ of 57, and a full
scale IQ of 56 on the WISC-III IQ test. (R. at 209.) Testing of Plaintiff’s Broad Independence,
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which measures overall adaptive behavior, revealed that his functional independence was
significantly below average in all areas. (R. at 211.) Further, Plaintiff’s Maladaptive Behavior
Index score was found to be moderately serious. Id. Notes from the testing indicate that
Plaintiff has weaknesses in associating with other people, maintaining attention, and cooperating.
Id. In the report, Plaintiff’s teacher noted that he has a short attention span on a daily basis and
intermittently refused to do work. Id. The report also indicates that Plaintiff failed all of his
proficiency exams and received mostly “Ds” and one “C” in his classes. (R. at 207.) His records
also show that he spent time in a juvenile center and had problems with truancy. Id. The
evaluation team concluded that because of his low IQ score and “multiple adaptive behavior
deficits,” Plaintiff qualified for the developmentally handicapped program at his school. Id.
Finally, Plaintiff dropped out of school in ninth grade and never obtained his GED. (R. at 38.)
Plaintiff has also submitted evidence demonstrating that he continues to exhibit
subaverage general intellectual functioning with deficits in adaptive functioning. First, in May
2010, Dr. Sarver administered the WAIS-IV to Plaintiff, which revealed a Verbal IQ of 74,
Perceptual Reasoning IQ of 67, Working Memory IQ of 69, Processing Speed IQ of 62, and a
Full Scale IQ of 63. (R. at 223.) Dr. Sarver found the IQ scores to be valid and explained they
indicate that Plaintiff’s overall level of functioning was within the mentally retarded range. Id.
Further, while Dr. Sarver ultimately concluded that Plaintiff had a borderline level of intellectual
functioning, he also found that Plaintiff had poorly developed ego skills; would have difficulty
organizing, structuring, and working towards goals; and would have difficulty containing anger,
frustration, and impulses. (R. at 219.) He also found that Plaintiff’s reading and writing skills
were not functional. Id. He opined that Plaintiff’s ability to relate to others was moderately
19

impaired; his ability to understand and follow simple one and two step instructions is mildly
impaired; his ability to withstand work stress is moderately impaired; and that he would not be
able to manage his benefits on his own due to past alcohol abuse. (R. at 221.)
Finally, the record contains evidence that Plaintiff has a poor work history and has never
had a driver’s license. The record indicates that he quit his last job after a month because he had
trouble with anxiety and social interactions. (R. at 39, 220.) The record also suggests that
Plaintiff had trouble attending work and was fired for that reason on at least one occasion. (R. at
37-40, 220.)
The Court concludes that Plaintiff presented substantial evidence to demonstrate that he
suffers from significantly subaverage general intellectual functioning with deficits in adaptive
functioning that initially manifested during the developmental period. 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)).
In his decision, the ALJ found that Plaintiff did not meet the Listing because he did not
have a valid IQ score in the required range and because he did not demonstrate deficits in
adaptive functioning before age twenty-two. The Court concludes that substantial evidence does
not support the ALJ’s finding that Plaintiff’s IQ scores were not valid. While the ALJ found that
Plaintiff’s “motivation and effort was somewhat lacking” when he took the IQ test at age fifteen,

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the evidence in the record suggests otherwise. 4 (R. at 18-19.) Moreover, Dr. Sarver found the
IQ scores to be valid. (R. at 223.) Under these circumstances, substantial evidence does not
support the ALJ’s decision to invalidate Plaintiff’s IQ scores.
Substantial evidence does, however, support the ALJ’s finding that Plaintiff did not
demonstrate the deficits in adaptive functioning required under Listing 12.05(C). Accordingly,
any error the ALJ may have made in evaluating Plaintiff’s IQ scores is harmless. 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 medical evidence supported the
ALJ’s conclusion); cf. Winters v. Comm’r of Soc. Sec., No. 98–1991, 2000 WL 712353, at *2
(6th Cir. May. 22, 2000) (rejecting claimant’s request for a sentence six remand to consider
results of a new IQ test, finding that she could not satisfy the materiality requirement because she
had not shown that her mental impairment satisfied other essential elements of Listing 12.05(C));
Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 642 (6th Cir. 2013) (remand not appropriate
where the record evidence the claimant relied upon established “a mere toehold . . . on an
4

The examiner noted the following observations regarding Plaintiff’s test behavior:

Before the evaluation was begun, the examiner conversed with Aaron about his
family, school, and interests. Aaron was affable and friendly but made selfdeprecating remarks indicating that he expected to do poorly on the test. During
the test, Aaron was relieved and excited when he did something well. He kept his
head down throughout any part of the testing that did not require him to use his
eyes. However, his responses indicated that he was listening attentively. He
made conversation cheerfully confessing that he had been in a juvenile hall for 6
months but was going out to look for a job today. He seemed optimistic and
contrite about his past truancy.
(R. at 209.)
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essential element of [Listing 12.05(C) ]” and did not otherwise address the remaining essential
elements of the Listing); Hayes, 357 F. App’x at 675 (noting that a low IQ test “is not sufficient
by itself to satisfy Listing 12.05”). Accordingly, while the ALJ erred, remand is improper
because the ALJ properly found that Plaintiff did not demonstrate deficits in adaptive
functioning.
A review of the record as a whole demonstrates that substantial evidence supports the
ALJ’s finding that Plaintiff did not demonstrate deficits in adaptive functioning. With regard to
his school records, the Court notes that they contain conflicting evidence regarding Plaintiff’s
adaptive functioning. While Plaintiff’s “Broad Independence” was found to be significantly
below average, his Survival Skills Quotient fell squarely within the average range. 5 (R. at 212.)
Given the results of the SSSQ, the examiner felt that “[Plaintiff] should have adequate skills to
function independently at home, in his classroom, and in the community.” Id. Further,
Plaintiff’s educational records noted that Plaintiff’s significantly high score on the Devereux
Behavior Rating Scale and his chronic attendance problems likely had a significant impact on his
learning. (R. at 214.) His teacher also noted that “[Plaintiff’s] poor attendance and frequent
tardiness at school has interfered with his making progress as well as he might.” (R. at 207.)

5

On the SSSQ, Plaintiff demonstrated understanding of words such as up, down, between,
bottom, top, half, smaller, inside, middle, and front; could read all of the written and symbolic
signs which were presented; could identify tools and their uses; could identify cleaning products
and their uses; could find telephone numbers in a directory and dial them correctly; could tell
time to the minute on a digital and analog clocks; could add and subtract time; could select the
months of the year in the right order; could identify all coins and bills; could identify places
where services can be obtained in the community (i.e. purchase stamps, borrow books, fill
prescriptions). (R. at 212.)
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These comments indicate that Plaintiff’s behavioral issues and efforts may have affected his
intellectual advancement.
In addition, on Plaintiff’s Function Report, he indicated that he can follow written and
spoken instructions “good.” (R. at 166.) He also submitted that he is able to pay bills, count
change, handle a savings account, and use a checkbook and money orders. (R. at 165.) Further,
he is able to prepare simple meals and take care of his own grooming, although he needs
reminders to shave. (R. at 163-164.) Plaintiff is also married and lives with his wife. (R. at 37.)
Plaintiff used to complete household chores such as vacuuming, dishes, and mowing the grass,
but no longer does so because of his back pain. (R. at 164, 42.)
The medical records also supply support for the ALJ’s findings. Dr. Sarver concluded
that Plaintiff had borderline intellectual functioning. (R. at 220.) While Dr. Sarver’s conclusion
“does not rule not the possibility of a finding of mental retardation” under Listing 12.05(C),
Sheeks, 544 F. App’x at 641, it is a relevant consideration. 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). Further, on
examination, Dr. Sarver noted that Plaintiff’s memory registration appeared functionally intact,
his short-term memory and attention was marginally intact, his long-term memory was
functionally intact, and his abstract reasoning and common sense and judgment were in the low
average range. (R. at 219.) He noted, however, that Plaintiff’s ability to read and write was not
functional. Id. Nonetheless, Plaintiff’s speech and language was noted to be within normal
limits and intelligibility was 100%. Id. Notably, Dr. Sarver did not find that Plaintiff had any
marked limitations. (R. at 221.) Finally, a state-agency physician, Dr. Dietz, noted that “[w]hile
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there are scores suggestive of mental retardation other information (adaptive functioning)
suggests otherwise. It appears that [Plaintiff’s] socialization difficulties may have impaired his
willingness to participate in past testing. His level of day to day functioning appears to be
consistent with the Borderline range of intellectual functioning.” (R. at 228.)
The Court also points out that the ALJ considered Plaintiff’s activities of daily living,
social functioning, and concentration, persistence or pace in determining whether Plaintiff met
the paragraph D criteria of Listing 12.05. In considering these areas of functioning, the ALJ
found that Plaintiff had mild restrictions in activities of daily living and moderate restrictions in
social functioning and concentration, persistence, or pace. (R. at 17-18.) These findings support
the ALJ’s conclusion that Plaintiff did not experience deficiencies in adoptive functioning. West
v. Comm’r Soc. Sec. Admin., 240 F. App’x 692, 698 (6th Cir. 2007) (finding that substantial
evidence supported the ALJ’s finding that plaintiff did not experience deficiencies in adaptive
functioning where plaintiff “did not exhibit “marked” limitations in his “daily living activities,
social functioning, or ability to maintain attention and concentration,” and . . . did not
demonstrate an “inability to function outside of a highly supportive living arrangement.”)
Further, as the ALJ noted, Plaintiff’s poor work history does not appear to be a result of
his intellectual or adaptive deficits. As the ALJ explained, “[Plaintiff] testified that he quit prior
jobs due to difficulty being around others. He also admitted that he lost his job at McDonald’s,
in part, because he just ‘did not feel like coming in.’ Furthermore, he quit his job at Shoney’s
‘because it was too hard on his body.’” (R. at 24.)
Given the foregoing, the Court concludes that substantial evidence supports the ALJ’s
finding that Plaintiff did not exhibit deficits in adaptive functioning before age twenty-two.
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While the Court may have arrived at a different conclusion than the ALJ, his decision must be
affirmed because it is supported by substantial evidence. Lowery v. Comm’r of Soc. Sec., 886 F.
Supp. 2d 700, 706 (S.D. Ohio 2012) (“If the Commissioner’s decision is supported by substantial
evidence, it must be affirmed, even if the Court as a trier of fact would have arrived at a different
conclusion.”) (citing Elkins v. Sec. of Health and Hum. Serv., 658 F.2d 437, 439 (6th Cir. 1981)).
Substantial evidence supports the ALJ’s conclusion that Plaintiff does not meet the diagnostic
description and that Plaintiff does not meet Listing 12.05(C). Under these circumstances, it is
unnecessary to consider the remaining criteria of Listing 12.05(C). Accordingly, Plaintiff’s
contention of error is OVERRULED.
B.

Step Three Findings
Plaintiff is correct that if a claimant satisfies a Listing criteria at step three, the evaluation

must end without consideration of Plaintiff’s RFC. See Reynolds v. Comm’r of Soc. Sec., 424 F.
App’x 411, 416 (6th Cir. 2011). At step three, the ALJ is required to consider the medical
severity of the claimant’s impairments. The Sixth Circuit has declined to require remand,
however, when the ALJ provides minimal reasoning at step three. See Forrest v. Comm’r of Soc.
Sec., 591 F. App’x 359, 365 (6th Cir. 2014) (“we decline Forrest’s invitation to extend Wilson to
require remand when the ALJ provides minimal reasoning at step three of the five-step inquiry. .
. Importantly, the regulations governing the five-step inquiry require only that the ALJ “consider
all evidence in [the claimant’s] case record,” 20 C.F.R. § 404.1520(a)(3), and, at step three,
“consider the medical severity of [the claimant’s] impairment(s)”).
In this case, the ALJ did not apply RFC findings or other post-step three findings in his
step three determination. While the ALJ referenced his later discussion of certain evidence, he
25

did not improperly consider vocational factors or decide Plaintiff’s RFC before making his
findings at step three. As explained above, the ALJ was required to consider Plaintiff’s adaptive
functioning and intellectual abilities in order to determine whether Plaintiff met Listing 12.05(C).
Thus, the ALJ’s reasoning at step three, although minimal, did not violate the Regulations.
Plaintiff’s contention of error is therefore OVERRULED.
VIII. DISPOSITION
In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits. Accordingly, Plaintiff’s Statement of
Errors is OVERRULED and the Commissioner of Social Security’s decision is AFFIRMED.
IT IS SO ORDERED.

Date: March 31, 2015

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

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