Harry v. Commissioner of Social Security
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision. Objections to R&R due by 5/8/2017. Signed by Magistrate Judge Kimberly A. Jolson on 4/24/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
DA’QUAN T. HARRY,
Civil Action 2:16-cv-341
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Plaintiff, Da’Quan T. Harry, brings this action under 42 U.S.C. § 405(g) seeking review
of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for supplemental security income (“SSI”).
For the reasons that follow, it is
RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner’s decision.
On July 19, 2012, Deidra Harry, on behalf of her then minor child, Da’Quan T. Harry,
filed an application for SSI alleging that he has been disabled since December 15, 2007. (Doc. 9,
Tr. 124–29). After initial administrative denials of Plaintiff’s claims, an Administrative Law
Judge (“ALJ”) held a video hearing on March 20, 2014. Because Plaintiff turned eighteen yearsold prior to hearing, the ALJ obtained additional medical and school records to evaluate his
application under the adult disability standards as well as the child disability standards. On
November 11, 2014, the ALJ issued a decision finding that Plaintiff was not disabled at any time,
within the meaning of the Social Security Act. (Id., Tr. 12–33). On February 22, 2016, the
Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the
Commissioner’s final decision. (Id., 1–4).
Plaintiff filed this case on April 18, 2016, and the Commissioner filed the administrative
record on June 21, 2016. (Doc. 9). Plaintiff filed a Statement of Specific Errors on August 8,
2016 (Doc. 10), the Commissioner responded on September 21, 2016 (Doc. 11), and Plaintiff
replied on October 6, 2016 (Doc. 12).
Plaintiff was born in 1995. His mother filed for benefits when he was sixteen years-old,
alleging that Plaintiff has been disabled since December 15, 2007, when he was twelve yearsold. Plaintiff turned eighteen in November of 2013. (Doc. 9, Tr. 12, 17, 124). He has a limited
educational background and no prior work. (Id., Tr. 32).
Testimony at the Administrative Hearing
Plaintiff testified at the administrative hearing that he was in the 12th grade, but with an
11th grade status. (Id., Tr. 44). When asked if he was on track to graduate, Plaintiff responded
that he was told if he could “get my work up,” he probably could graduate that year if he
attended summer school. (Id., Tr. 44–45). Plaintiff testified that he was often absent and tardy
to school due to transportation issues. (Id., Tr. 45). He further testified that he attended IEP
(Individualized Education Program) classes, and that his mother helped him with his homework.
(Id., Tr. 46). He admitted that sometimes at school he gets angry with his classmates because
they “talk” about him. (Id.). He testified that he stopped smoking marijuana the past December
and began taking Concerta, a prescription medication. (Id., Tr. 47). The medication, according
to Plaintiff, “[k]eeps [him] calm.” (Id.). He further testified that he has no trouble taking care of
himself. (Id., Tr. 49). For example, he showers and brushes his teeth on his own. (Id.)
Plaintiff’s mother next testified that Plaintiff has “always had problems in school with his
education;” he can’t focus and doesn’t remember or completely finish what she asks of him; and
he has some behavioral problems. (Id., Tr. 55). She also noted Plaintiff gets suspended from
school “a lot.” (Id.). When asked why Plaintiff stopped taking his medication, she responded
that he stopped taking it because he was experiencing side effects, such as not sleeping or eating
right. (Id., Tr. 58). She further explained that once Plaintiff stopped, he “just never went back to
get the prescriptions. And then as he started getting worse that’s when I went back and got his
medication back.” (Id.). She testified that she has never seen her son do homework. (Id., Tr.
59). According to her testimony, Plaintiff tells his mother that he either does not have any or that
he completed it at school. (Id.) Plaintiff’s teachers, however, have relayed that he does not
complete his homework assignments. (Id.).
Because Plaintiff’s claim included both child and adult disability standards,
Interrogatories were sent to a vocational expert (“VE”). (Id., Tr. 285–90). The ALJ proposed a
hypothetical question involving an individual who was born in November 1995, has a limited
education and is able to communicate in English, with no work experience, with the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the
following nonexertional limitations: simple, routine tasks, simple, short instructions, can make
simple decisions, have few work place changes.
This individual is not required to read
instructions, write reports or perform math calculations as essential functions of the job. The
individual can have superficial interaction with coworkers, supervisors, and the public.
Superficial means no need for confrontation or negotiation. (Id., Tr. 288). The VE responded
that Plaintiff could perform unskilled jobs in the national economy such a janitor, with 200,000
jobs in the nation; a dishwasher, with 190,000 jobs in the nation; and a packager, with about
200,000 jobs in the nation. (Id., Tr. 289).
In assessing Plaintiff for special education under the Individuals with Disabilities
Education Act, the evaluation team—consisting of teachers, counselors, a school psychologist,
and a therapist—reported in May 2012 that Plaintiff was achieving below grade level in all
Plaintiff was found to have difficulty with the following: understanding
directions read aloud, expressing himself in words, expressing himself in writing, sitting still and
paying attention. He has significant difficulty with reading comprehension and basic math skills.
They also assessed his social, emotional, and behavioral functioning. Concern was noted in the
following areas: hyperactivity, conduct problems, attention problems, learning problems, social
skills, leadership, study skills, and functional communication. (Id., Tr. 170).
As part of a comprehensive evaluation, Plaintiff was administered the WoodcockJohnson Tests of Cognitive Ability-Third Edition (WJ-III COG) on January 31, 2012, with the
following results: General Intellectual Ability: 80, Verbal Ability: 80, Thinking Ability: 85,
Cognitive Efficiency: 84, Phonemic Awareness: 94, Working Memory: 93. Standard scores
between 90 and 110 are considered Average. The school psychologist noted that Plaintiff’s
cognitive ability is consistent with his previous scores of 72 on the SB-V from 2004 and his
score of 85 on the WJ-III COG from 2006. (Id., Tr. 170).
An Individualized Education Program (IEP) was implemented for Plaintiff’s ninth grade
year in 2012. (Doc. 9, Tr. 131–50). At this time, Plaintiff was in his second year of high school,
but was still listed as having freshman status. (Id., Tr. 135). He had failed most of his courses
during his first year in high school. (Id.). His goal included working to improve his grades and
attending school every day and on time. (Id.). It was noted that he had a total of 28 absences
and 17 tardies. (Id., Tr. 142). The IEP additionally provided for Plaintiff to receive specially
designed services, including instruction in reading and math, as well as intervention strategies
and behavioral strategies. (Id., Tr. 132–50).
The IEP written in April 2013 for the following school year in 2013–14 showed that
during the 2012–13 school year, when Plaintiff was seventeen years-old, he was recovering
credits, and if successful, would be on track to graduate during the 2013–14 school year. (Id.,
Tr. 245–61). He was identified for special education services during the 2011–12 school year
and was receiving services under the category of Other Health Impairment (Minor). Plaintiff
was receiving instruction in a resource room for all of his core content area classes. (Id., Tr.
247). Because Plaintiff was working below grade level expectations, he received continued
interventions in basic reading, reading comprehension, basic math, math application, spelling,
and written expression. It was noted that Plaintiff displayed some good fundamental math skills
such as adding and subtracting, and some good fundamental reading skills such as sight word
recognition and emerging decoding skills. (Id.)
On November 13, 2013, Ms. Ryan, a special needs teacher at Plaintiff’s high school,
completed a questionnaire concerning Plaintiff’s six functional domains. (Tr. 216–23). Ms.
Ryan reported that she had known Plaintiff for two years, and interacted with him on a daily
basis for almost an hour. (Id., Tr. 216). Ms. Ryan indicated that Plaintiff receives instruction
based on a 12th grade curriculum, with significant modifications and accommodations. (Id.). In
the functional domain of acquire and use information, Ms. Ryan indicated that Plaintiff suffered
from serious to very serious problems in every category, reporting that Plaintiff’s reading and
writing skills were well below grade level, that he cannot independently read at his current grade
level, and that a recent assessment put Plaintiff’s reading at the second to third grade level. (Id.,
Tr. 217). Ms. Ryan also noted that Plaintiff’s academic deficits contributed to his behavioral
Further, Ms. Ryan noted that Plaintiff exhibited serious to very serious
problems in almost every category of attending and completing tasks, reporting that Plaintiff
“has terrible difficulty staying focused, following directions and completing tasks.” (Id., Tr.
218). She also wrote that he required frequent redirection and prompting, and often appears to
be confused. (Id.).
Relevant Medical Evidence
Plaintiff attended four consultative evaluations as a child. The first, with Mark
Hammerly, Ph.D., occurred on May 13, 2008, when Plaintiff was twelve years-old. (Doc. 9, Tr.
298–307). At the time of this evaluation, Plaintiff was in the sixth grade. Plaintiff’s mother
reported that “she ha[d] been ‘trying to get him’ an IEP for many years.” (Id. at 299). She also
reported that Plaintiff had been in two schools that year alone; and she received weekly calls
home from the school regarding Plaintiff’s behavior. (Id.). Dr. Hammerly administered the
Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), which resulted in verbal
and full scale IQ scores of 59. (Id., Tr. 303). He also noted that Plaintiff put forth good effort
and the scores were valid and reliable and expected given the stated academic history. (Id.). Dr.
Hammerly reported that Plaintiff’s communication was normal, his motor skills were normal, his
personal and behavioral patterns were noted as being “at or near his age-appropriate level”; and
Plaintiff’s concentration, persistence, and pace may be problematic.
(Id., Tr. 304).
Hammerly stated that Plaintiff displayed symptoms consistent with Mild Mental Retardation and
that the test documented concurrent deficits in present adaptive functioning in at least two major
areas. (Id., Tr. 305). He concluded “I would defer to a clinical judgment made by another
professional with access to a proper norm–referenced instrument of adaptive functioning,
however, but diagnosis of Mild MR is still appropriate today, along with his ADHD which is
under moderate control with pharmacological intervention.” (Id.).
Plaintiff was again evaluated for disability purposes by Scott Donaldson, Ph.D. in July
(Id., Tr. 311–13).
Dr. Donaldson administered a Wide Range Achievement Test
(WRAT4) which showed Plaintiff functioned at first or second grade level; and the Vineland II
Adaptive Behavioral Scale, which revealed a moderately low-level of adaptive behavior. Dr.
Donaldson diagnosed Plaintiff with a learning disorder and noted that his behavioral difficulties
presented the greatest problems. (Id., Tr. 313).
In March 2011, when Plaintiff was 15 years old, he was evaluated by Jack Kramer, Ph.D.
(Id., Tr. 315–19). Dr. Kramer noted that Plaintiff tended to isolate himself and reported that his
cognitive and memory skills were below his age level. (Id., Tr. 316). Dr. Kramer diagnosed
Plaintiff with ADHD. (Id., Tr. 318). In the ability to acquire and use information, Dr. Kramer
noted that Plaintiff was tested when younger, but did not qualify for special education services
according to his mother. Academic skills are reported to be harder for him, but he has not
worked very hard to improve his skills.
He did not say a lot during the evaluation, but
understood questions and formulated answers, but he was not able to answer single-digit
multiplication. In his ability to attend to tasks, Dr. Kramer noted Plaintiff appeared to have
significant issues with task completion—he is not motivated to do homework or help with
household chores. Regarding his ability to interact with others, Plaintiff has been disciplined due
to being disrespectful towards teachers and adults. Dr. Kramer found no issues in Plaintiff’s
ability for self-care. (Id. Tr. 317–18).
Plaintiff was seen for a physical by Johanna Tylka, M.D. on February 2, 2012, when he
was 16 years old. Plaintiff’s mother reported that he was on Concerta for ADHD in 2008–09 but
she stopped getting refills. Then in 2011, she was given forms to restart the medication and they
were never completed. During this appointment, Plaintiff’s mother was again interested in
getting him medication. (Id., Tr. 328). Plaintiff reported use of Marijuana weekly. Examination
of his back and spine was normal; he was neurologically intact. Plaintiff was assessed with
allergic rhinitis, probable ADHD, and a learning disability. (Id., Tr. 328–35).
In October 2012, Albert Virgil, Ph.D. evaluated Plaintiff for disability purposes. (Id., Tr.
344-47). Plaintiff’s mother reported him disabled due to ADHD and his symptoms included
“Temper, can’t focus, hard to remember stuff. He bites his nails.” (Id., Tr. 344–45). On mental
status examination, Dr. Virgil found Plaintiff’s appearance was appropriate, he sat quietly,
responded appropriately, his speech was normal and he exhibited good eye contact. Dr. Virgil
found Plaintiff performed at the borderline level on the WISC-IV abstract/vocab subtest.
(Id., Tr. 345).
Dr. Virgil diagnosed Plaintiff with a mood disorder, a learning disorder, and
borderline intellectual functioning. (Id., Tr. 346). Dr. Virgil opined that Plaintiff’s ability to
acquire and use information was impaired. (Id.). Plaintiff’s ability to attend and complete tasks
was not significantly impaired; his ability to interact with others was not impaired and his ability
for self-care was age appropriate. (Id., Tr. 347).
Once Plaintiff turned eighteen, he was evaluated by John Reece, Psy.D. in April 2014.
(Id., Tr. 403–06). At the time of this evaluation, Plaintiff reported to be in the eleventh grade.
(Id., Tr. 403). On mental status examination, Dr. Reece found Plaintiff’s affect to be flat and that
his prevailing mood was mild to moderately dysphoric and anxious. (Id., Tr. 404–05). Dr. Reece
diagnosed Plaintiff with an unspecified depressive disorder and an unspecified impulse control,
disruptive, and conduct disorder. (Id.). Dr. Reece completed a medical source statement in
which he concluded that Plaintiff’s ability to understand, remember and carry out instructions
was not affected by his impairment. (Id., Tr. 409). Dr. Reece also concluded that Plaintiff’s
ability to interact with others was only mildly impaired. (Id., Tr. 410).
On two separate occasions, Plaintiff’s childhood disability claim and medical record were
reviewed, analyzed, and his limitations evaluated in each of the six functional domains. (Id., Tr.
In October 2012, Robelyn Marlow, Ph.D., the reviewing psychologist
considered Plaintiff’s ADHD under Listing 112.11. (Id., Tr. 76–77). As to each of the six
functional domains, Dr. Marlow assessed the impairment to be “less than marked” or “no
limitation” severity and, therefore, she concluded that Plaintiff’s condition did not functionally
equal a listed impairment. 1 (Id., Tr. 77–78). Dr. Marlow assigned “great weight” to Dr. Virgil’s
report of functioning. (Id., Tr. 78). Reviewing the updated medical record in January 2013, Mel
“By ‘functionally equal the listings,’[the agency] mean[s] that [the claimant’s] impairment(s)
must be of listing level severity; i.e., it must result in ‘marked’ limitations in two domains of functioning
or an ‘extreme’ limitation in one domain.” 20 C.F.R. 416.926a(a).
Zwissler, Ph.D., a second state agency psychologist, for the same reasons came to the same nondisability conclusion. (Id., Tr. 87–88).
The Administrative Decision
On November 21, 2014, the ALJ issued an unfavorable decision. (Id., Tr. 12–33).
Beginning with the childhood standards of disability, at Steps 1 and 2 of required sequential
evaluation, the ALJ found that Plaintiff had not engaged in any substantial gainful activity, and
that he had severe impairments of attention deficit hyperactivity disorder, oppositional defiant
disorder, learning disorder, and a depressive disorder.
(Id., Tr. 17).
At Step 3, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that either
meets or medically equals a listed impairment. (Id., Tr. 19).
In determining that Plaintiff’s impairments were not functionally equivalent to a listed
impairment, the ALJ found that Plaintiff’s impairments caused a marked limitation in his ability
to interact with and relate to others. The ALJ found that Plaintiff was less than markedly
impaired or not impaired in the remaining functional areas. (Id., Tr. 21–28).
The ALJ then considered Plaintiff’s claim under the adult disability standards. She found
that Plaintiff had not engaged in substantial gainful activity since he attained age eighteen in
November 2013. (Id., Tr. 28). The ALJ determined that Plaintiff had the following severe
impairments: “attention deficit hyperactivity disorder, oppositional defiant disorder, and a
depressive disorder.” (Id.). The ALJ found that he did not, however, meet the requirements of
an impairment listed in 20 CFR Subpart P, Appendix 1. (Id., Tr. 29). The ALJ ultimately found
that Plaintiff had the RFC to perform all the basic work activities without any exertional
limitations subject to the following limitations/restrictions: he can perform simple, routine tasks
so long as the work involves simple, short instructions; and he can make simple decisions; and
he is restricted to working in jobs where there are few work-place changes; and to jobs where he
would not have to read instructions, write reports or perform math calculations as essential
functions of the job; and to jobs where he would have no more than superficial interaction with
coworkers, supervisors and members of the public. (Id., Tr. 30). Relying on the VE’s response
to interrogatories, the ALJ concluded that Plaintiff could perform jobs that exist in significant
numbers in the national economy. (Id., Tr. 32–33). She therefore concluded that Plaintiff was
not disabled under the Social Security Act at any time since he attained age eighteen. (Id., Tr.
II. STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).
“[S]ubstantial 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The
Commissioner’s findings of fact must also be based upon the record as a whole. Harris v.
Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the Court must “take into account
whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision. Rhodes
v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
On appeal, Plaintiff alleges that the ALJ improperly evaluated his childhood disability
claim by incorrectly evaluating whether Plaintiff’s intellectual impairments met or equaled
listing 112.05; and by incorrectly determining that Plaintiff did not functionally equal the
listings. Plaintiff also contends that the ALJ incorrectly evaluated Plaintiff’s adult disability
claim by failing to evaluate properly his intellectual disability under listing 12.05. (Docs. 10,
The Court considers Plaintiff’s second argument first. An individual under the age of
eighteen shall be considered disabled for purposes of this title if that individual has a medically
determinable physical or mental impairment which results in marked and severe functional
limitations, and which can be expected to result in death, or which has lasted, or can be expected
to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(C)(i).
The Social Security Administration (“SSA”) uses a three-step process to determine if a
child applicant is disabled and entitled to benefits: (1) if the child is engaged in substantial
gainful activity, the child is not disabled; (2) if the child does not have a severe medically
determinable impairment or combination of impairments, the child is not disabled; and (3) if the
child’s impairment(s) do not meet, medically equal, or functionally equal the listings, the child is
not disabled. 20 C.F.R. § 416.924.
At the third step, an impairment functionally equals a listing if it results in “marked”
limitations in two domains of functioning or an “extreme” limitation in one domain. 20 C.F.R.
The regulations identify six domains of functioning to be considered: (1)
acquiring and using information; (2) attending and completing tasks; (3) interacting and relating
with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health
and physical well-being. 20 C.F.R. § 416.926a(b)(1).
A claimant has a “marked” limitation if the claimant’s impairments seriously interfere
with the claimant’s ability to independently initiate, sustain, or complete activities. 20 C.F.R.
§ 416.926(e)(2)(i). A “marked” limitation is more severe than “moderate” and less severe than
“extreme.” 20 C.F.R. § 416.926(e)(2)(i). An impairment causes an “extreme” limitation when it
interferes very seriously with the claimant’s ability to independently initiate, sustain, or complete
activities. 20 C.F.R. § 416.926(e)(3)(i). In determining the effect of an impairment on the six
domains, the Commissioner considers information from medical sources, parents and teachers,
and consultative examiners. 20 C.F.R. § 416.926a(b)(3).
Plaintiff argues that the ALJ failed to discuss evidence relevant to his claim.
particular, Plaintiff claims that the ALJ should have given attention to Plaintiff’s poor academic
performance, his objective IQ results documenting listing level scores, and the opinions from
both Plaintiff’s special education teacher, Ms. Ryan and consultative examiner, Dr. Virgil, who
documented significant problems in acquiring and using information. The Court disagrees with
The ALJ found that Plaintiff had problems in the domain of ability to acquire and use
information and appropriately identified the evidence showing Plaintiff had problems in this
area, citing to Ms. Ryan’s questionnaire and Dr. Virgil’s opinion diagnosing lower intelligence
and a learning disorder, Plaintiff’s academic records, and the testimony of Plaintiff and his
mother. (See, Doc. 9, Tr. 22) (citing to id., Tr. 134–35, 153, 156, 159–60, 162, 168, 217, 225,
226, 234, 247, 255, 264–65). However the ALJ also determined that the record documents cited
counseling notes that showed Plaintiff had “ongoing improvement” with his ADHD medication,
that “his grades ha[d] been going up,” and that he was “passing everything except his French
class” by April 2013. (Id., Tr. 358). The ALJ also considered Plaintiff’s testimony that he only
sometimes had problems focusing in school. (Id., Tr. 22) (citing to id., Tr. 45–46). Similarly,
the ALJ considered the testimony of Plaintiff’s mother, which indicated that Plaintiff could
complete homework but did not turn it in. (Id., Tr. 22, citing to id., Tr. 59).
The ALJ found that Plaintiff’s impairments caused a “less than marked” limitation in the
domain of ability to acquire and use information. She supported her determination with the
opinions of the State agency psychologists, Drs. Marlow and Zwissler. (Id., Tr. 22). The ALJ
assigned “great” weight to these opinions because they were uncontradicted and supported by the
evidence, specifically noting that Plaintiff’s ability to acquire and use information improved after
he started taking medication for his attention deficit hyperactivity disorder. (Id., citing to id., Tr.
349, 354, 358, 366). A review of the record therefore indicates that the ALJ’s finding is
consistent with the findings of Drs. Marlow and Zwissler. As psychological consultants, Drs.
Marlow and Zwissler are considered “highly qualified physicians and psychologists who are also
experts in Social Security disability evaluation.” See 20 C.F.R. § 416.927(e)(2)(i); SSR 96-6p.
Moreover, their findings are uncontradicted.
An ALJ’s explanation of her step three determination need not be elaborate. “The Sixth
Circuit has consistently rejected a heightened articulation standard, noting in Bledsoe v. Barnhart
that the ALJ is under no obligation to spell out ‘every consideration that went into the step three
determination’ or ‘the weight he gave each factor in his step three analysis,’ or to discuss every
single impairment.” Stages v. Astrue, 2011 WL 3444014 at *3 (M.D. Tenn. Aug. 8, 2011)
(citing Bledsoe v. Barnhart, 165 Fed. Appx. 408, 411 (6th Cir. 2006)).
There is substantial evidence in the record to support the ALJ’s decision, even though
there is evidence to the contrary as well. If substantial evidence supports the ALJ’s decision, the
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 (6th Cir.
2009). Therefore, the Court finds that the ALJ did not err in finding that Plaintiff does not meet
the second part of step three.
112.05 of the Listing
Section 112.05 of the Listing specifies the mental retardation category of impairment.
This impairment is characterized by significantly sub-average general intellectual functioning
with deficits in adaptive functioning. The required level of severity for this disorder is met when
the requirement in A, B, C, D, E, or F are satisfied. Plaintiff argues that he met paragraphs C and
C. A valid verbal, performance, or full scale IQ of 59 or less;
D. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant limitation of function.
The presence of a mental disorder must be documented on the basis of reports from
acceptable sources of medical evidence. Descriptions of functional limitations may be available
from these sources, either in the form of standardized test results or in other medical findings
supplied by the sources, or both. (Medical findings consist of symptoms, signs, and laboratory
findings.) Whenever possible, a medical source’s findings should reflect the medical source’s
consideration of information from parents or other concerned individuals who are aware of the
child’s activities of daily living, social functioning, and ability to adapt to different settings and
expectations, as well as the medical source’s findings and observations on examination,
consistent with standard clinical practice. As necessary, information from non-medical sources,
such as parents, should also be used to supplement the record of the child’s functioning to
establish the consistency of the medical evidence and longitudinality of impairment severity.
In children with mental disorders, particularly those requiring special placement, school
records are a rich source of data, and the required reevaluations at specified time periods can
provide the longitudinal data needed to trace impairment progression over time. Reference to a
“standardized psychological test” indicates the use of a psychological test measure that has
appropriate validity, reliability, and norms, and is individually administered by a qualified
specialist. By “qualified,” the SSA means the specialist must be currently licensed or certified in
the state to administer, score, and interpret psychological tests and have the training and
experience to perform the test. Psychological tests are best considered as standardized sets of
tasks or questions designed to elicit a range of responses. Psychological testing can also provide
other useful data, such as the specialist’s observations regarding the child’s ability to sustain
attention and concentration, relate appropriately to the specialist, and perform tasks
independently (without prompts or reminders). Therefore, a report of test results should include
both the objective data and any clinical observations. 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Under subsection D, the claimant must have a verbal, performance, or full scale IQ of 60
through 70. Even liberally construing the evidence in Plaintiff’s favor, he is not impaired as
defined in the mental retardation category of impairment.
Plaintiff was administered the
Woodcock-Johnson Tests of Cognitive Ability-Third Edition (WJ-III COG) on January 31, 2012,
with the following results: General Intellectual Ability: 80, Verbal Ability: 80, Thinking Ability:
85, Cognitive Efficiency: 84, Phonemic Awareness: 94, Working Memory: 93. Standard scores
between 90 and 110 are considered Average. The school psychologist noted that Plaintiff’s
cognitive ability is consistent with his previous scores of 72 on the SB-V from 2004 and his
score of 85 on the WJ-III COG from 2006. (Id., Tr. 170). The general intelligence quotient
exceeded the scores necessary to meet any of the median scores necessary to show intellectual
inability. The ALJ did not err in failing to consider whether Plaintiff’s impairments were
consistent with the Listing 112.05 because there was no evidence satisfying the threshold
intelligence quotient necessary to meet subsection D of Listing 112.05.
Plaintiff’s next challenge to the ALJ’s decision is that she erred by failing to find that
Plaintiff satisfies Listing 12.05. Listing 12.05 for Intellectual Disability requires proof of the
Intellectual disability [which] refers to significantly sub-average 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.
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., Part 404, Subpt. P, App. 1, § 12.05(C).
To meet Listing 12.05(C), an individual’s impairment must satisfy both the diagnostic
description of intellectual disability (formerly mental retardation) 2 in the introductory paragraph
of the listing and the requirements set forth in subparagraph C. Id. at § 12.00A. As explained
below, Plaintiff is unable to satisfy his burden of proof. Here, he cannot even show that he meets
or equals the diagnostic description of intellectual disability in the introductory paragraph of the
listing as no medical source ever conclusively diagnosed him with mental retardation, and even
more significantly, the record shows he has not had significant deficits in adaptive functioning
which originated prior to age 22.
The ALJ acknowledged Plaintiff’s IQ scores through her evaluation of the state agency
psychologists’ assessments. (Id., Tr. 19). Yet, IQ scores alone cannot show Plaintiff had mental
retardation or that he meets or equals the listing. Cooper v. Comm’r of Soc. Sec., 217 F. App’x
450, 452 (6th Cir. 2007) (holding that it is not enough for a claimant to reference an IQ score
below 71; the claimant must also satisfy the ‘diagnostic description’ of mental retardation in
Listing 12.05.”); West v. Comm’r of Soc. Sec., 240 Fed. Appx 692, 698 (6th Cir. 2007) (“The
medical evidence also supports the ALJ’s conclusion [that claimant did not have the requisite
deficits of adaptive functioning]). Rather, the “results of intelligence tests are only part of the
overall assessment,” and adaptive functioning deficits are the other part. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00(D)(6)(a). Adaptive functioning involves how effectively an individual
copes with common life demands and meets standards of personal independence in areas such as
On August 1, 2013, the SSA amended Listing 12.05 by replacing the words “mental retardation”
with “intellectual disability.” See 78 F. Reg. 46,499, 46,501 (to be codified at 20 C.F.R. § 404, subpt. P,
app. 1). The SSA stated that the change “does not affect the actual medical definition of the disorder or
available programs or services.” Id. at 46,500. Thus, the amendment does not effect a substantive change,
communication, self-care, and social skills. DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS at 40 (4th ed. 2000) (“DSM-IV-TR”). “The term ‘adaptive behavior’
refers to the individual’s progress in acquiring mental, academic, social and personal skills as
compared with other unimpaired individuals of his/her same age.” POMS DI 24515.056D.
Here, as the ALJ correctly found, the record demonstrates that Plaintiff’s impairments
also cannot be said to meet the criteria in section 112.05 because there is no persuasive evidence
in this case that he has an intellectual disability. (Id., Tr. 18). The ALJ also noted that after
Plaintiff turned eighteen, “special consideration was given to the impairments mentioned in
sections 12.04, 12.05 and 12.08. The evidence, however, fails to show that the claimant’s
impairments have met the severity set forth in these sections of Appendix 1, or in any other
sections, since he attained age 18.” (Id., Tr. 29). This is demonstrated by the clinical findings
and opinions of the consultative psychological examining physicians, Plaintiff’s daily living
activities, social functioning, and the opinions of the state agency reviewing psychologists. (Id.,
Tr. 49, 72–80, 83–91, 315–19, 344–47, 403–06).
For example, in April 2014, Dr. Reece performed a consultative psychological
examination of Plaintiff. (Id., Tr. 403–06). Dr. Reece’s observations show that Plaintiff did not
have Listing-level adaptive deficits prior to age twenty-two. At his consultative exam in 2014,
when Plaintiff was eighteen years-old, Plaintiff did not report any mental functioning reason for
why he could not work; rather, he reported he needed “more help” with his class work. (Id., Tr.
and for purposes of this pleading, the words “mental retardation” and “intellectual disability” have the
same meaning and will be used interchangeably, as appropriate.
Similarly, Dr. Reece’s mental status examination findings were mostly normal and
further suggestive of an individual with good adaptive functioning. For example, upon mental
status examination, Plaintiff was clean and neatly dressed, was cooperative, exhibited no
impulsive behaviors, had “eye contact [that was] inconsistent with poor quality” and no
“psychomotor retardation or agitation,” and had adequate insight. (Id., Tr. 404). Dr. Reece did,
however, note a flattened affect and that Plaintiff was mildly to moderately dysphoric and
anxious. (Id.) Dr. Reece diagnosed Plaintiff with an unspecified depressive disorder and an
unspecified impulse control, disruptive and conduct disorder, not mental retardation. (Id., Tr.
He further noted that Plaintiff reported adequate insight and unimpaired intellectual
functioning. (Id., Tr. 406).
Also significant, Dr. Reece opined that Plaintiff’s impairment did not affect his ability to
understand, remember, and carry out instructions. (Id., Tr. 409). Dr. Reece also concluded that
Plaintiff’s ability to intact with others was only mildly impaired. (Id., Tr. 410), which is also
significant evidence that Plaintiff was not disabled by intellectual disability. (Tr. 409–10).
Moreover, Dr. Reece’s assessed limitations were accommodated by the ALJ’s mental RFC
finding. (Tr. 30, 406, 409–10). The ALJ’s mental RFC finding is consistent with Dr. Reece’s
assessed limitations, and accommodates for any impairment in responding to work pressures as
the ALJ’s restrictive RFC finding that requires only simple, short instructions, making simple
decisions and few work place changes. (Id., Tr. 30). Taking all of this into account, substantial
evidence supports the ALJ’s determination that Plaintiff was not disabled by intellectual
disability and therefore did not meet or equal the requirements of Listing 12.05(C).
For the reasons stated, it is RECOMMENDED that the Plaintiff’s statement of errors be
OVERRULED and that judgment be entered in favor of Defendant.
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 finding or recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge of this Court shall make a de novo
determination of those portions of the Report or specific proposed findings or recommendations
to which objection is made. Upon proper objection, a District 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).
IT IS SO ORDERED.
Date: April 24, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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