Rhoads v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Michael E Rhoads. It is 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. Objections to R&R due by 10/2/2014. Signed by Magistrate Judge Norah McCann King on 9/15/2014. (pes1)

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

Civil Action 2:14-cv-318
Judge Frost
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is now before the Court on Plaintiff Michael E. Rhoads’s
Statement of Specific Errors (“Statement of Errors”), Doc. No. 10,
Defendant’s Memorandum in Opposition (“Commissioner’s Response”), Doc.
No. 11, and Plaintiff’s Reply, Doc. No. 12.
Plaintiff Michael E. Rhoads filed his applications for benefits
on April 29, 2011, alleging that he has been disabled since July 1,
2008.

PAGEID 242, 249.

The applications were denied initially and

upon reconsideration, and plaintiff requested a de novo hearing before
an administrative law judge.
An administrative hearing was held on January 18, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did

Jerry Olsheski, who testified as a vocational expert.

PAGEID 64.

In

a decision dated January 29, 2013, the administrative law judge
concluded that plaintiff was not disabled from July 1, 2008, the
alleged disability onset date, through the date of the administrative
decision.

PAGEID 58.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined
review on March 4, 2014.

PAGEID 31.

Plaintiff was 48 years of age on the date of the administrative
law judge’s decision.

See PAGEID 58, 242.

Plaintiff has at least a

high school education, is able to communicate in English, and has past
relevant work as a fast food worker, bakery conveyor-line attendant,
and production machine tender.

PAGEID 56, 84.

Plaintiff was last

insured for disability insurance purposes on December 31, 2013.
PAGEID 49.

He has not engaged in substantial gainful activity since

July 1, 2008, his alleged date of onset of disability.
II.

Id.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of borderline intellectual functioning, alcohol
abuse, degenerative disc disease, status post bilateral burns to the
feet and skin grafting, and plantar fasciitis.

PAGEID 49.

The

administrative law judge also found that plaintiff’s impairments
neither meet nor equal a listed impairment and leave plaintiff with
the residual functional capacity to
lift and carry twenty pounds occasionally; lift and carry
ten pounds frequently; stand, walk, and sit up to six hours
in an eight hour workday with normal breaks; occasionally

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use his bilateral lower extremities to operate foot
controls; never climb ladders, or scaffolds; occasionally
climb ramps and stairs; occasionally stoop, kneel, or
crouch; is also limited to simple, routine, and repetitive
tasks;
requires
work
that
only
involves
occasional
decision-making and occasional changes in the work setting;
only occasionally interact with the public so long as
contact is brief and superficial (defined as the claimant
should not be involved in negotiations, confrontation, or
supervising others and where the claimant would not have
direct contact with others for more than fifteen minutes at
a time; occasionally interact with co-workers as long as no
tandem tasks are assigned and where his interaction would
be brief and superficial; and could not perform work that
would require strict production requirements[)].
PAGEID 51.

Although this residual functional capacity would preclude

plaintiff’s past relevant work, the administrative law judge relied on
the testimony of the vocational expert to find that plaintiff is
nevertheless able to perform a significant number of jobs in the
national economy, including such jobs as assembler, production
inspector, and hand packer.

PAGEID 56-58.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act from July 1, 2008,
through the date of the administrative decision.

PAGEID 58.

III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence

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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.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

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

Statement of Errors, pp. 12-15.

Listing 12.05

requires, under appropriate circumstances, a finding of disability
based on the claimant’s intellectual disability:
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
. . .

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(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: (1)
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning [that] initially manifested during
the developmental period” (i.e., the diagnostic description); (2) a
“valid verbal, performance, or full scale IQ of 60 through 70,” and
(3) “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,
persistence, or pace.”
12.00(C)(4).

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

See also West v. Comm'r Soc. Sec. Admin., 240 F. App’x

692, 698 (6th Cir. 2007) (“Adaptive functioning includes a claimant's
effectiveness in areas such as social skills, communication, and daily
living skills.”).

Present IQ scores do not alone establish that the

claimant suffered 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.”

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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).
The administrative law judge expressly considered Listing
12.05C, but concluded that plaintiff did not satisfy the requirements
of the Listing “because there was no evidence presented indicating
that the claimant had a full-scale intelligence score of less than
seventy.”

PAGEID 51.

Plaintiff argues that the administrative law

judge erred in evaluating 12.05C by requiring a “full-scale
intelligence score of less than seventy” and not recognizing
plaintiff’s verbal score of 66.

Statement of Errors, pp. 12-15.

This

Court agrees.
Plaintiff was evaluated by Jennifer L. Scott, Psy.D., on August
6, 2011, for the state agency.

PAGEID 449-57.

Plaintiff reported

that he graduated from high school, but that he went to school for
only one hour on Fridays during the twelfth grade.

PAGEID 450.

Plaintiff could not recall if he was in special education classes, but
he reported failing grades and problems in reading, spelling, and
math.

Id.

He also had problems getting along with teachers and

peers; he recalled being suspended approximately 50 times for
fighting, yelling, and skipping school.
hitting his principal.

Id.

Id.

He was expelled for

Plaintiff also testified that he has been

arrested approximately 30 times.

Id.

Plaintiff’s interests include drinking beer; on a typical day,
he will “sit in the barn and drink beer by [himself].”

PAGEID 451.

He leaves home only when absolutely necessary and he performs no

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household chores because it takes too long.

Id.

He visits friends on

occasion and is able to adequately attend to his personal care.

Id.

Dr. Scott noted that plaintiff’s general reasoning abilities
and short-term and working memory were limited; his attention and
concentration and his arithmetic reasoning abilities were marginally
adequate.

PAGEID 452.

Plaintiff’s “phraseology, grammatical

structure, and vocabulary suggest that he is of borderline
intelligence.”

Id.

Dr. Scott assigned a global assessment of

functioning score (“GAF”) of 411 and diagnosed alcohol dependence.
PAGEID 456. According to Dr. Scott, plaintiff “would likely have
significant difficulty with multi-step instructions due to limited
cognitive abilities.”

Id.

Plaintiff was “marginally able to sustain

attention and concentration, as he appeared preoccupied with his
pain.”

Id.

Dr. Scott “questioned” plaintiff’s ability to adequately

regulate his anger in a workplace setting.

Id.

On the Wechsler Adult Intelligence Scale-4th Edition (“WAISIV”),

PAGEID 453,

plaintiff achieved a Verbal Comprehension Index

score of 66, a Perceptual Reasoning Index score of 94, and a Full
Scale IQ score of 77.

Id.

Dr. Scott opined that the “significant

discrepancy between [plaintiff’s] verbal and perceptual scores,
1

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

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indicat[es] that the FSIQ does not adequately capture [plaintiff’s]
true overall cognitive abilities.”

Id.

Dr. Scott further opined that

a “discrepancy of this magnitude is unusual and is usually reflective
of learning difficulties, neurological impairment, or significant
anxiety.”

PAGEID 453.

Dr. Scott recommended further testing to

assess potential learning disabilities.

PAGEID 453-54.

The administrative law judge’s evaluation of Listing 12.05C
considered only whether plaintiff had a full-scale intelligence score
of less than seventy.

See PAGEID 51.

Listing 12.05C is not, however,

limited to consideration of full-scale intelligence scores.

To

satisfy Listing 12.05C, a claimant must establish, inter alia, that he
has a “valid verbal, performance, or full scale IQ of 60 through 70.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.

The administrative law

judge’s failure to consider plaintiff’s verbal score of 66 is
therefore error.
The Commissioner concedes that the administrative law judge
erred in evaluating Listing 12.05C.
15.

Commissioner’s Response, pp. 12-

The Commissioner argues, however, that any error in this regard

was harmless.

Id.

The Commissioner specifically argues that

plaintiff has offered insufficient evidence of the remaining elements
of Listing 12.05C and that substantial evidence supports a finding
that plaintiff does not meet the Listing.

Id.

The Commissioner’s

arguments are not well taken.
The Commissioner argues that, “[b]ecause substantial evidence
supports a finding that Plaintiff did not have significantly

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subaverage intellectual functioning and adaptive deficits initially
manifested before age twenty-two, a full analysis of Plaintiff’s
condition under Listing 12.05C would have led to the conclusion that
Plaintiff does not meet the Listing.”

Commissioner’s Response, p. 15.

The Commissioner’s arguments to the contrary notwithstanding, the
existence of substantial evidence to support a position does not
compel a decision in favor of that position.

Substantial evidence is

more than a scintilla of evidence but less than a preponderance; see
Buxton, 246 F.3d at 772; Kirk, 667 F.2d at 535; it is therefore not
entirely uncommon for there to be substantial evidence in support of
conflicting conclusions.

See Warner v. Comm'r of Soc. Sec., 375 F.3d

387, 390 (6th Cir. 2004) (“As long as substantial evidence supports
the Commissioner's decision, we must defer to it, even if there is
substantial evidence in the record that would have supported an
opposite conclusion . . . .”) (internal quotations omitted) (quoting
Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003)).

Plaintiff

has cited some evidence to support a finding of disability under
Listing 12.05C.

It is not this Court’s right to determine in the

first instance whether the evidence is sufficient to satisfy the
Listing.
The Commissioner also erroneously implies that a formal diagnosis
of mental retardation2 is necessary under Listing 12.05C.

See

Commissioner’s Response, p. 13 (“Furthermore, Plaintiff has never been

2

Prior to September 3, 2013, Listing 12.05 referred to “mental retardation,”
rather than to “intellectual disability.”

9

diagnosed with mental retardation . . . .”).

Although the absence of

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

The examiner and

clinical psychologist who tested him diagnosed him instead as
borderline intellectual functioning.”), a formal diagnosis is not a
necessary prerequisite to the Listing.

See 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 12.05C.
The only reference to Listing 12.05C by the administrative law
judge was an erroneous conclusion that 12.05C requires a full scale IQ
score of 70 or below.

See PAGEID 51.

The administrative law judge

neither set forth nor properly evaluated the elements of the Listing.
The administrative law judge’s discussion of Listing 12.05C is so
deficient that this Court cannot meaningfully review the decision.
See Miller v. Comm'r of Soc. Sec., 181 F. Supp. 2d 816, 820 (S.D. Ohio
2001) (“The ALJ thus failed to discuss the elements of Listing §
11.03, and whether or not the evidence demonstrated that plaintiff
satisfied those elements. In the absence of such a discussion, the
Court cannot conduct a meaningful review of the record, for it is
unclear precisely why, in the ALJ's view, plaintiff did not satisfy
Listing § 11.03.”).
In short, the Court concludes that the administrative law judge
erred in his evaluation of plaintiff’s claim by reference to Listing
12.05C.

It is therefore RECOMMENDED that the decision of the

10

Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g)
and that this action be REMANDED to the Commissioner of Social
Security for further consideration of Listing 12.05C.
Having concluded that the action must be remanded on this basis,
the

Court

need

not

and

does

not

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

28

Response to objections

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

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

September 15, 2014

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

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