Wolford v. Commissioner of Social Security

Filing 25

REPORT AND RECOMMENDATIONS re 23 MOTION to Remand. It is RECOMMENDED that plaintiffs Motion to Remand Based on New and Material Evidence be granted and that this action be remanded to the Commissioner of Social Security, pursuant to Sentence 6 of 42 U.S.C. § 405(g) for consideration of new and material evidence. Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Norah McCann King on 9/10/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHANNON ROGER WOLFORD,
Plaintiff,
vs.

Civil Action 2:14-cv-1250
Judge Economus
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Shannon Roger Wolford protectively filed an application
for supplemental security income on August 27, 2010, alleging that he
has been disabled since his application date.

PAGEID 91, 222.

In a

decision dated May 29, 2013, made following an administrative hearing,
the administrative law judge concluded that plaintiff was not disabled
from August 27, 2010, through the date of the administrative decision.
PAGEID 91-100.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined
review on June 20, 2014.

PAGEID 60-63. This matter is now before the

Court on plaintiff’s motion to remand the action pursuant to Sentence
6 of 42 U.S.C. § 405(g). Motion to Remand Based on New and Material
Evidence (“Motion to Remand”), Doc. No. 23. There has been no response
to that motion.1

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The parties have also addressed plaintiff’s claim, made pursuant to Sentence
4 of 42 U.S.C. § 405(g), that the decision of the Commissioner is not
supported by substantial evidence. Statement of Specific Errors, Doc. No. 17,
Defendant’s Memorandum in Opposition, Doc. No. 23, and Plaintiff’ Response to
Defendant’s Memorandum in Opposition, Doc. No. 24. Because the Court
concludes that the matter should be remanded pursuant to Sentence 6 of 42

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Under the provisions of Sentence 6 of 42 U.S.C. §405(g),
[t]he court. . . may at any time order additional evidence
to be taken before the Commissioner of Social Security,
but only upon a showing that there is new evidence which
is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior
proceeding; . . .
Evidence is “new,” for purposes of this provision, only if it was “not
in existence or available to the claimant at the time of the
administrative proceeding.”

Sullivan v. Finkelstein, 496 U.S. 617,

626 (1990). Evidence is “material” only if there is “a reasonable
probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with the new
evidence.”

Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709,

711 (6th Cir. 1988); see also Faucher v. Sec’y of Health & Human
Servs., 17 F.3d 171, 174 (6th Cir. 1994). Moreover, the plaintiff must
establish that good cause exists for the failure to incorporate the
new and material evidence into the prior proceeding.

Willis v. Sec’y

of Health & Human Servs., 727 F.2d 551, 554 (6th Cir. 1984).

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plaintiff may establish good cause by demonstrating a reasonable
justification for the failure to acquire and present the evidence at
the administrative hearing.

Foster v. Halter, 279 F.3d 348, 357 (6th

Cir. 2001). This standard also applies to evidence submitted for the
first time to the Appeals Council.

Id.; Cline v. Comm’r of Social

Security, 96 F.3d 146, 148 (6th Cir. 1996).
The administrative law judge found that plaintiff’s severe
impairments consist of “a bipolar disorder, an anxiety disorder, a

U.S.C. § 405(g), the Court does not address plaintiff’s claim under Sentence
4 of 42 U.S.C. § 405(g).

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personality disorder, borderline intellectual functioning, and a
history of polysubstance abuse.”

PAGEID 93.

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 (“RFC”) to work. PAGEID 95-97.

Specifically, the

administrative law judge found that plaintiff’s mental impairments
neither meet nor equal Listing 12.05C, which addresses intellectual
disability.2

In making this finding, the administrative law judge

relied on cognitive testing performed when the plaintiff was in the
fifth grade in 1990 and rejected cognitive testing performed in 2007.
Plaintiff was evaluated on October 1, 1990, at the age of 11
years and two months, to determine whether he should remain in
developmental handicapped classes.

PAGEID 472-74.

A Wechsler

Intelligence Scale for Children-Revised (“WISC-R”) was administered,
and plaintiff achieved a Verbal IQ score of “72 ± 6,” a Performance IQ
score of “85 ± 7,” and a Full Scale IQ score of “76 ± 5.”

Id.

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Berry Developmental Test of Visual Motor Coordination revealed that
plaintiff performed in the borderline range of visual motor skills,
“like an average child aged 7 years, 2 months.”
“consistent with his cognitive ability.”

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Id.

PAGEID 473.

This was

The evaluator concluded

Listing 12.05C requires a finding of disability based on the
claimant’s intellectual disability if the claimant establishes
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested” before age 22
and “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.

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that plaintiff continued “to function in the Borderline range of
cognitive ability” and had “deficits in academic skills and adaptive
behavior.”

PAGEID 474.

DH placement.”

It was recommended that plaintiff “[c]ontinue

Id.

The Wechsler Adult Intelligence Scale-3rd edition (“WAIS-III”)
was administered on June 20, 2007, during a consultative examination
with clinical psychologist Paul A. Deardorff, Ph.D. PAGEID 388-93.
Plaintiff “obtained a verbal scale IQ of 71, performance scale IQ of
69, and a full scale IQ of 67, indicating that he is currently
functioning in the mildly retarded range of intelligence or about the
1st percentile for his age group.”

PAGEID 390.

Dr. Deardorff noted

that plaintiff’s “tested IQ is slightly lower than to be expected
based on his clinical presentation” and “[e]motional factors may have
interfered with his performance on this measure as he appeared to be
of borderline intelligence.”

PAGEID 391.

Dr. Deardorff also noted

that plaintiff “did not appear to exaggerate or minimize his
difficulties” and that he “was adequately motivated.”

PAGEID 389.

On

tasks calling for comprehension of words, abstract verbal reasoning
abilities, short-term memory skills, a fund of information, common
sense reasoning abilities, and perceptual-organizational and problem
solving abilities, plaintiff’s performance fell “just below average
limited.”

PAGEID 391.

Plaintiff’s arithmetic reasoning skills fell

“moderately below the average range,” and his word reading abilities
fell “in the borderline range or at about the 7th percentile for his
age group.”

Id.

Plaintiff’s word recognition abilities tested at a

fifth grade level, and his sentence comprehension, spelling, and math

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skills fell “in the mildly retarded range or at about the 1st
percentile for his age group.”

Id.

On Axis I, Dr. Deardorff

diagnosed generalized anxiety disorder, NOS, and alcohol abuse in
remission.

PAGEID 392.

On Axis II, Dr. Deardorff diagnosed

borderline intellectual functioning.

Id.

According to Dr. Deardorff,

plaintiff is moderately impaired in his mental ability to (1) relate
to others; (2) understand, remember, and follow simple instructions;
and (3) maintain attention, concentration, persistence, and pace.
PAGEID 393.

Plaintiff is moderately to severely impaired in his

mental ability to withstand the stress and pressure associated with
day-to-day work activity.

Id.

The administrative law judge found that the 1990 testing was the
more valid:
Finally, the “paragraph C” criteria of listing 12.05 are
not met because the claimant does not have a valid verbal,
performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional
and significant work-related limitation of function.
The
claimant is not mentally retarded.
WAIS-III testing
performed by Dr. Deardorff in 2007 revealed the following
IQ scores: verbal 71; performance 69; and full scale 67.
On their face, these scores bring the claimant’s borderline
intellectual functioning within the scope of Section
12.05C.
However, prior WISC-R IQ testing performed when
the claimant was in school showed higher IQ scores as
follows: verbal 72; performance 85; and full scale 76
(Exhibit 8F).
These scores must be considered the more
valid measure of the claimant’s cognitive functioning and
are
not
consistent
with
Listing
level
intellectual
deficits. The claimant does not have commensurate deficits
in adaptive functioning consistent with a diagnosis of
mental retardation.
PAGEID 97.
In the Motion to Remand, plaintiff asks that the Commissioner
consider a psychological examination performed by Sheila Kelly, M.A.,

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approximately four (4) months after the administrative law judge
issued his decision. PAGEID 68-73. On the WAIS-IV, plaintiff achieved
a Verbal Comprehension Index score of 70, a Perceptual Reasoning Index
score of 79, a Working Memory Index score of 74, a Processing Speed
Index score of 79 , and a Full Scale IQ score of 71.

PAGEID 71. Ms.

Kelly made an Axis II diagnosis of borderline intellectual functioning
“with Verbal Comprehension index in the Mild Range of Mental
Retardation. . . .” PAGEID 73.
In seeking a Sentence 6 remand to consider Ms. Kelly’s
findings, plaintiff argues that the evidence is new because it was
generated after the administrative law judge rendered his decision,
and is material because it “slams the door on any suggestion that Dr.
Deardorff’s I.Q. scores were impacted by emotional factors or other
circumstances as suggested by the ALJ.

The evidence further confirms

that the claimant’s I.Q. is within Listing 12.05C range.”

Motion to

Remand, p.2.
This Court concludes that plaintiff has met the standard for
remand under Sentence 6 of 42 U.S.C. § 405(g). Ms. Kelly’s report and
findings were not in existence or available when the administrative
law judge issued his decision and are therefore “new” for purposes of
a Sentence 6 remand. See Sullivan v. Finkelstein, 496 U.S. at 626. Her
report is “material” because, as plaintiff argues, there is “a
reasonable probability” that the administrative law judge would have
evaluated the cognitive tests differently had he had access to Ms.
Kelly’s report. See Sizemore v. Sec’y of Health & Human Servs., 865
F.2d at 711. Finally, the record establishes good cause for the

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failure to incorporate the new and material evidence into the prior
proceeding.
554.

See Willis v. Sec’y of Health & Human Servs., 727 F.2d at

In this regard, the record reflects that plaintiff sought leave

to submit new and material evidence to the Appeals Council almost
immediately following the issuance of the administrative law judge’s
decision.

See PAGEID 87. Under these circumstances, remand under

Sentence 6 is warranted.
It is therefore RECOMMENDED that plaintiff’s Motion to Remand
Based on New and Material Evidence, Doc. No. 23, be granted and that
this action be remanded to the Commissioner of Social Security,
pursuant to Sentence 6 of 42 U.S.C. § 405(g) for consideration of new
and material evidence.
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).

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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 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

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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)).

September 10, 2015

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

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