Russell v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that the Plaintiffs statement of errors be sustained and that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Signed by Magistrate Judge Terence P. Kemp on 12/18/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lisa Lou Russell,

:

Plaintiff,

:

v.

:

Carolyn W. Colvin, Acting
:
Commissioner of Social Security,
Defendant.

Case No.

2:15-cv-0407

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Lisa Lou Russell, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for supplemental security income.

That

application was filed on June 6, 2011, and alleged that Plaintiff
became disabled on January 31, 1998.

That date was amended, at

the hearing, to June 6, 2011.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on June 6, 2013.
ALJ denied benefits.

In a decision dated August 16, 2013, the

That became the Commissioner’s final

decision on December 5, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on April 13, 2015.

Plaintiff filed her

statement of specific errors on June 15, 2015, to which the
Commissioner responded on September 16, 2015.

Plaintiff filed a

reply brief on September 30, 2015, and the case is now ready to
decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 25 years old at the time of the

administrative hearing and who discontinued her schooling in 9th
grade, testified as follows.

Her testimony appears at pages 34-

49 of the administrative record.
Plaintiff first testified that she failed to complete the
ninth grade after attempting it three or four times.

She had

been in special education classes since third or fourth grade.
Plaintiff said she could write a little bit but could not read.
She had never had a driver’s license and had never lived
independently, nor had she ever had a checking account.

She had

two children, but they were in their father’s cousins’ custody.
In the past, Plaintiff had received mental health
counseling, but stopped treatment when she got angry at her
counselor.

She had worked at three or four jobs in the past, the

last one being at Taco Bell.
worker.

That job ended when she hit a co-

A similar incident ended her employment at McDonald’s

after only two days.

She also lost a factory job after four

weeks due to a confrontation with her manager.
Plaintiff was asked about drug use, and said that she had
been using marijuana to help her cope with various life events.
She had also used heroin, but only once since June of 2011.

She

had never been in a drug treatment program.
On a typical day, Plaintiff awoke angry.
suicide in January, 2013.
household chores.

She had attempted

She had no daily activities and did no

She never saw her children.

accompanied her whenever she left the house.
people brought on symptoms of anxiety.
reason she could not work.

Her father

Being around other

That was the primary

She did take medication, and it

helped her not to cry every day and calmed her down.
III.

The Medical and Educational Records

The medical records in this case are found beginning on page
295 of the administrative record.

The Court will summarize those

records, as well as the opinions of the state agency reviewers,
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to the extent that they are pertinent to Plaintiff’s single
statement of error.
Dr. Sarver, a clinical psychologist and neuropsychologist,
conducted a consultative evaluation on July 20, 2011.

At that

time, Plaintiff was living either with a boyfriend or with her
grandmother.

At some time previously, she had been homeless.

She also had run away from home and been suspended from school on
multiple occasions.

She reported never having had friends.

was using marijuana one day per week.

She

At that time, she was

doing household chores, and she also watched television.

She had

no hobbies.
Dr. Sarver noted that Plaintiff reported being depressed and
that she appeared socially awkward.

She had no difficulty with

attentional pace and persistence and her memory was intact, but
she showed difficulty reading and writing.

Her abstract

reasoning was in the mentally retarded range, as was her common
sense and judgment.

On tests administered during the evaluation,

Plaintiff scored 68 on the verbal comprehension component of an
IQ test, 56 on the perceptual reasoning component, 63 on the
working memory component, and 65 on processing speed component,
yielding a full-scale IQ score of 57.

That placed her overall

intellectual functioning in the mentally retarded range.
Sarver said the test results were valid.

Dr.

He did say, however,

that “her independent living skills appear to be functional, and
she has no history of special education placement.”

He rated her

GAF at 55 and diagnosed adjustment disorder with depressed mood,
a personality disorder, and borderline intellectual functioning.
He also thought she would have some difficulty following even
simple job instructions and that she would “consistently
encounter contentious relationships with supervisors and
coworkers in the work setting.”
dealing with work pressure.

She also would have difficulty

(Tr. 306-14).
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There are a number of other treatment records, primarily
from Tri-County Mental Health.

Because these records do not

relate directly to the claim Plaintiff raises here, the Court
will not summarize them.
Plaintiff submitted records from Trimble High School, where
she attended the ninth grade.

She had an IEP in place which

noted that she qualified for “special education with a specific
learning disability that effects (sic) her performance in all
areas of academic achievement.”

Her reading and comprehension

were below a third grade level and her writing was at a fifth or
sixth grade level.

She was retained multiple times in the eighth

and ninth grades and never successfully completed any coursework
in the ninth grade.

She was also suspended multiple times for

violating various school rules and for being defiant and
disrespectful.
Finally, the state agency psychological reviewers (neither
of whom had seen the school records) assessed Plaintiff’s mental
residual functional capacity, finding her moderately limited in a
number of work-related areas.

Neither diagnosed mental

retardation, and although each appears to have rejected the
contention that Plaintiff met the criteria for disability under
section 12.05(C) of the Listing of Impairments, neither provided
any particular explanation for that conclusion.
IV.

The Vocational Testimony

Karen Frazier White, a vocational expert, testified at the
administrative hearing.

Her testimony begins at page 50 of the

administrative record.
Ms. White began by testifying about Plaintiff’s past
relevant work.

She said that jobs like fast food worker and

assembly line worker were unskilled, with the fast food worker
job typically being performed at the light exertional level, and
the assembly line job being performed at all exertional levels,
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although Plaintiff’s assembly job was sedentary.
Ms. White was then asked to answer some questions about a
hypothetical person who could work at all exertional levels and
who was limited to doing simple, routine, repetitive tasks
involving only no decision-making, no production quotas, no
tandem tasks, no interaction with the general public, and only
occasional interaction with coworkers and supervisors.

According

to Ms. White, such a person could do Plaintiff’s past work as an
assembly line worker.

Such a person could also work as a busser,

cleaner, or laundry worker.

If the person also could not be

required to read instructions, write reports, or do math
calculations, he or she could still do the latter two jobs plus a
job as a laundry bagger.

Ms. White also said that none of those

jobs involved over-the-shoulder supervision.
Ms. White was then asked if certain restrictions would be
work-preclusive.

She testified that someone who could not

sustain sufficient concentration to do even simple tasks for an
eight-hour day could not be employed, nor could a person who
could not consistently and appropriately interact with co-workers
and supervisors.

The same was true for someone who consistently

missed as many as three or four days of work per month.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1120 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
had not engaged in substantial gainful activity since her
application date of June 6, 2011.

Going to the second step of

the sequential evaluation process, the ALJ determined that
Plaintiff had severe impairments including depression, anxiety,
personality disorder, borderline intellectual functioning, and
substance abuse disorder.

The ALJ also found that these

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impairments did not, at any time, meet or equal the requirements
of any section of the Listing of Impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1), including sections 12.04 and 12.06.
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at all exertional levels but was limited to the
performance of simple routine tasks involving simple, short
instructions with no decision-making, few workplace changes, no
production requirement, no tandem tasks, no interaction with the
general public, and occasional interaction with supervisors.
Also, she should not be required to read instructions, write
reports, or perform math calculations.
The ALJ next found that Plaintiff had no past relevant work.
Nevertheless, the ALJ concluded that Plaintiff could work as a
busser or laundry bagger, and that these jobs existed in
significant numbers in the region and nationally.

Consequently,

the ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises only a
single issue.

She asserts that the ALJ erred in her analysis of

the requirements of section 12.05(C) of the Listing of
Impairments.

This issue is considered under the following legal

standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

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Cir. 1976).

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
In order for a claimant to qualify for disability under
section 12.05(C) of the Listing of Impairments, the claimant must
meet both the criteria for mental retardation and have another
impairment which significantly limits his or her ability to
perform work-related functions.

Section 12.05 sets forth certain

qualifying scores on IQ tests which must be achieved in order to
demonstrate mental retardation.

For subsection (C), it is a

valid verbal, performance, or full-scale IQ score between 60 and
70. However, such a score is not sufficient to prove the
existence of mental retardation.

According to the preamble to

that Section, the claimant must also demonstrate deficits in
adaptive functioning which manifested themselves prior to age 22.
If that evidence is absent, the Listing has not been satisfied.
See Brown v. Secretary of H.H.S., 948 F.2d 268 (6th Cir. 1991).
The ALJ appeared to find that Plaintiff had no condition
meeting the criteria of any portion of the Listing of
Impairments, including section 12.05(C).

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As Plaintiff frames the

issue, the question is whether the ALJ’s determination that her
mental retardation did not meet section 12.05(C) is supported by
substantial evidence.

In arguing that it was not, Plaintiff

contends that the ALJ stated incorrectly that she had no other
severe impairments, improperly dismissed or failed to acknowledge
the qualifying IQ scores produced by the tests administered by
Dr. Sarver, and incorrectly determined that Plaintiff did not
have deficits in adaptive functioning which manifested themselves
prior to age 22.
The ALJ’s step three finding is not a model of clarity.

The

Court quotes it in full, as it relates to section 12.05(C), as
the starting point of the analysis:
[T]he “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. Although the claimant was determined to have
a learning disability, there is no evidence the
claimant had intellectual disability or significant
deficits in adaptive functioning prior to age 22
(Exhibit 10E). Although Dr. Sarver’s testing indicated
low IQ scores, medical evidence of record indicates
average intelligence (Exhibits 3F and 6F, p. 7). Also
the signature of a state agency medical consultant on
Form SSA-831 is implicit recognition that the
consultant has considered and ruled out a finding that
a medical listing is equaled (Exhibits 2A and 4A). ...
No treating or examining physician has either offered
an opinion or reported findings of listing level
severity. In addition, the undersigned has carefully
reviewed the criteria of the listed impairments in
Appendix 1 and has determined that the claimant’s
impairment (sic) do not meet the listing level criteria
of any impairments in Appendix 1.
(Tr. 15).
The first sentence of the ALJ’s rationale is both a simple
restatement of all of the criteria set out in section
12.05(C)(excluding the existence of deficits in adaptive
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functioning manifesting themselves prior to age 22, which is
found in the preamble) and, as to those criteria, demonstrably
false.

The ALJ herself found that Plaintiff had other severe

impairments, including depression, anxiety, and a personality
disorder.

Consequently, if the first sentence is read to say

that Plaintiff did not meet that part of the criteria, it is
contradicted by the ALJ’s own findings.
As to the IQ scores, the only evidence as to their validity
is Dr. Sarver’s comment that they were valid.

The ALJ gave

“special weight” to Dr. Sarver’s opinion, Tr. 18, and never
explained why (or whether) the ALJ considered all of his test
scores to be invalid.

Dr. Sarver’s report confirmed the fact

that there were no psychological factors affecting Plaintiff’s
performance on the tests, and also that Plaintiff’s overall level
of intellectual functioning, the skills which the tests
addressed, her abstract reasoning, and her common sense and
judgment, all fell within the mentally retarded range.

This is

not a case like Daniels v. Comm'r of Social Security, 70
Fed.Appx. 868, 869, 872 (6th Cir. 2003), where the test findings
“were undermined by a doctor’s full evaluation,” see Dragon v.
Comm’r of Social Security, 470 Fed.Apx 454, 462 (6th Cir. March
26, 2012); quite the contrary.

Thus, either the ALJ did not

actually find the test scores themselves to be invalid (which is
the more reasonable interpretation of the record, given that the
ALJ never discussed any factors which bear on the validity of IQ
test scores), or made such a finding without substantial support
in the record.

The Commissioner’s argument that the scores might

be deemed invalid based on the fact that one other document in
the record - a treatment note from Tri-County on which a box is
checked estimating Plaintiff’s intellectual functioning as
“average,” Tr. 362 - suggests a higher level of functioning is
misplaced.

That form is hardly the type of evidence upon which

otherwise valid IQ scores can be completely disregarded.
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It is

simply not a reasonable interpretation of the record that the ALJ
credited this form over the view of Dr. Sarver, whose report the
ALJ gave great weight to, but even if that was what happened,
that finding lacks substantial support.

In short, the first

sentence of the operative paragraph quoted above is nothing more
than the ALJ’s finding that (1) there are multiple criteria which
have to be met in order to establish disability under section
12.05(C), and (2) Plaintiff did not meet them.

The specific

reason why the ALJ reached that conclusion has to be gleaned from
the remainder of the paragraph.
The Court interprets the ALJ’s reasoning as follows.
Plaintiff did not satisfy section 12.05(C)’s requirements because
(1) she did not, according to her school records, have
“intellectual disability or significant deficits in adaptive
functioning prior to age 22"; and (2) no physician or state
agency reviewer said she satisfied section 12.05(C).

The latter

statement is true, but neither of the state agency reviewers had
the benefit of the educational records, and neither performed a
specific analysis of the requirements of that section of the
Listing.
test.

That rationale therefore fails the substantial evidence

What is left is the conclusory statement, based upon a

single reference to the educational records, that Plaintiff did
not, before she turned 22, have the type of deficits in adaptive
functioning which support a finding of mental retardation.
By definition, the type of “intellectual disability”
addressed by section 12.05 “refers to significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental
period.”

The phrase “adaptive functioning” has been fleshed out

by the Court of Appeals, which said:
The adaptive skills prong evaluates a claimant's
effectiveness in areas such as social skills,
communication skills, and daily-living skills. Heller
v. Doe, 509 U.S. 312, 329, 113 S.Ct. 2637, 125 L.Ed.2d
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257 (1993) (quoting Am. Psychiatric Ass'n, Diagnostic
and Statistical Manual of Mental Disorders, 28–29 (3d
rev. ed. 1987) (“DSM–III”)). To determine the
definition of mental retardation under the SSA, it is
appropriate to consult leading professional
organizations' definitions. See 67 Fed.Reg. 20022
(2002). The 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.” DSM–IV–TR at 49.
Hayes v. Comm’r of Social Security, 357 Fed. Appx. 672, 677 (6th
Cir. Dec. 18, 2009).
The ALJ cited to Plaintiff’s school records as evidence that
she did not, while growing up, have any issues either of
intellectual disability or adaptive functioning.

However, those

records do show significant problems in the area of “functional
academic skills,” which is, under Hayes, an aspect of adaptive
functioning.

Her performance in school, particularly in eighth

and ninth grades, was woefully deficient, she did not read at a
grade-appropriate level, and her other academic skills were
problematic.

The Commissioner suggests that her academic

problems were due to a specific learning disability as opposed to
“cognitive disability,” see Memorandum in Opposition, Doc. 17, at
7, but does not explain how the two are different, or whether any
difference is significant for the section 12.05(C) analysis.

In

any event, the ALJ did not draw that distinction, but seemed to
conclude that the school records did not support a finding of
academic problems while Plaintiff was growing up.
reasonable inference to draw.

That is not a

Further, the records clearly

demonstrate socialization issues and, to some extent, issues with
self-direction.

It is one thing to attribute these to some other

cause (such as Plaintiff’s diagnosed personality disorder); it is
another thing to say, as the ALJ did here, that these issues did
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not exist at all, and to support that statement by referring to
records which contradict it.

Consequently, the Court finds that

the ALJ did not have or cite to a reasonable basis for her
decision that there were no deficits in intellectual or adaptive
functioning prior to age 22.
The Commissioner devotes a substantial amount of argument to
the fact that Dr. Sarver did not diagnose mental retardation and
that the school records, which he did not have access to, would
not have changed his mind.

Dr. Sarver’s report, while it makes

multiple references to the fact that Plaintiff functioned in the
mentally retarded range, also explained that he did not diagnose
mental retardation because there was “no apparent history of
special education placement.”

(Tr. 312).

Dr. Sarver did not,

however, have the actual educational records, and it is simply
speculative to suggest that they would not have affected his
views.

In any event, the actual diagnosis of mental retardation

is not determinative, and the ALJ did not provide that rationale
in her decision.

Here, the proper course is to remand the matter

to the ALJ so that the full record can be evaluated properly.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained and that the case be
remanded to the Commissioner pursuant to 42 U.S.C. §405(g),
sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.
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Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver 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); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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