Chappel v. Commissioner of Social Security Administration

Filing 14

REPORT AND RECOMMENDATIONS - It is recommended that the Commissioner's decision that Plaintiff is not disabled be reversed. It is also recommended that this matter be remanded to the Commissioner for further administrative proceedings. Objections to R&R due by 2/1/2013. Signed by Magistrate Judge Michael R Merz on 1/15/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON 

RAMONA CHAPPEL,

:
Case No. 3:12-cv-080
Plaintiff,
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsMICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

:

REPORT AND RECOMMENDATIONS
Plaintiff brought this action pursuant to 42 U.S.C. '405(g) and 42 U.S.C. '1381(c)(3) as
it incorporates '405(g), for judicial review of the final decision of Defendant Commissioner of
Social Security (the "Commissioner") denying Plaintiff's application for Social Security benefits.
The case is now before the Court for decision after briefing by the parties directed to the record
as a whole.
Judicial review of the Commissioner's decision is limited in scope by the statute which
permits judicial review, 42 U.S.C. '405(g). The Court's sole function is to determine whether
the record as a whole contains substantial evidence to support the Commissioner's decision. The
Commissioner's findings must be affirmed if they are supported by "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389, 401 (1971), citing, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);
Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986).
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Substantial evidence is more than a mere scintilla, but only so much as would be required to
prevent a directed verdict (now judgment as a matter of law), against the Commissioner if this
case were being tried to a jury. Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988); NLRB v.
Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
In deciding whether the Commissioner's findings are supported by substantial evidence,
the Court must consider the record as a whole. Hepner v. Mathews, 574 F.2d 359 (6th Cir.
1978); Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir. 1984);
Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). However, the Court may not try the case de
novo, resolve conflicts in evidence, or decide questions of credibility. Garner, supra. If the
Commissioner's decision is supported by substantial evidence, it must be affirmed even if the
Court as a trier of fact would have arrived at a different conclusion. Elkins v. Secretary of Health
and Human Services, 658 F.2d 437, 439 (6th Cir. 1981).
To qualify for disability insurance benefits (SSD), a claimant must meet certain insured
status requirements, be under age sixty-five, file an application for such benefits, and be under a
disability as defined in the Social Security Act, 42 U.S.C. ' 423. To establish disability, a
claimant must prove that he or she suffers from a medically determinable physical or mental
impairment that can be expected to result in death or has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. '423(d)(1)(A). Secondly, these
impairments must render the claimant unable to engage in the claimant's previous work or in any
other substantial gainful employment which exists in the national economy.

42 U.S.C.

'423(d)(2).
To qualify for supplemental security benefits (SSI), a claimant must file an application
and be an "eligible individual" as defined in the Social Security Act. 42 U.S.C. '1381a. With

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respect to the present case, eligibility is dependent upon disability, income, and other financial
resources. 42 U.S.C. '1382(a). To establish disability, a claimant must show that the claimant is
suffering from a medically determinable physical or mental impairment 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)(A). A claimant must also show that the impairment
precludes performance of the claimant's former job or any other substantial gainful work which
exists in the national economy in significant numbers. 42 U.S.C. '1382c(a)(3)(B). Regardless
of the actual or alleged onset of disability, an SSI claimant is not entitled to SSI benefits prior to
the date that the claimant files an SSI application. See, 20 C.F.R. '416.335.
The Commissioner has established a sequential evaluation process for disability
determinations. 20 C.F.R. '404.1520. First, if the claimant is currently engaged in substantial
gainful activity, the claimant is found not disabled. Second, if the claimant is not presently
engaged in substantial gainful activity, the Commissioner determines if the claimant has a severe
impairment or impairments; if not, the claimant is found not disabled. Third, if the claimant has
a severe impairment, it is compared with the Listing of Impairments, 20 C.F.R. Subpart P,
Appendix 1 (1990). If the impairment is listed or is medically equivalent to a listed impairment,
the claimant is found disabled and benefits are awarded. 20 C.F.R. '404.1520(d). Fourth, if the
claimant's impairments do not meet or equal a listed impairment, the Commissioner determines
if the impairments prevent the claimant from returning to his regular previous employment; if
not, the claimant is found not disabled. Fifth, if the claimant is unable to return to his regular
previous employment, he has established a prima facie case of disability and the burden of proof
shifts to the Commissioner to show that there is work which exists in significant numbers in the

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national economy which the claimant can perform. Bowen v. Yuckert, 482 U.S. 137, 145, n.5
(1987).
Plaintiff represents that based on a previous application, the Commissioner determined in
March, 1992, that she was disabled due to mental retardation and substance abuse and that in
March, 2007, as part of a continuing disability review the Commissioner subsequently found
medical improvement and terminated her benefits. See PageID 493. Plaintiff acknowledges she
did not appeal that determination. PageID 494.
Plaintiff filed applications for SSD and SSI in September, 2008, alleging disability as of
July 25, 2008, due to post-traumatic stress disorder and panic attacks. PageID 121-20; 203. The
Commissioner denied Plaintiff’s applications initially and on reconsideration. PageID 114-22;
125-30. Administrative Law Judge David Redmond held a hearing, PageID 89-106, following
which he determined Plaintiff is not disabled. PageID 64-83. The Appeals Council denied
Plaintiff’s request for review, PageID 55-57, and Judge Redmond’s decision became the
Commissioner’s final decision. See Kyle v. Commissioner of Social Security, 609 F.3d 847, 854
(6th Cir. 2010).
In determining that Plaintiff is not disabled, Judge Redmond found that she has severe
history of degenerative joint disease in both knees, history of asthma, major depressive disorder,
post-traumatic stress disorder, borderline intellectual functioning, and a history of polysubstance
abuse, but that she did not have an impairment or combination of impairments that meets or
equals the Listings. PageID 67, ¶ 3; PageID 69, ¶ 4. Judge Redmond also found that Plaintiff has
the residual functional capacity to perform a limited range of medium work. PageID 72, ¶ 5.
Judge Redmond then used section 203.21 of the Grid as a framework for deciding, coupled with
a vocational expert’s testimony, and concluded that there is a significant number of jobs in the

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economy that Plaintiff is capable of performing. PageID 77, ¶ 10. Judge Redmond concluded
that Plaintiff is not disabled and therefore not entitled to benefits under the Act. PageID 78,¶¶ 11,
12.
The record contains a copy of Plaintiff’s school records dated November, 1970, through
December, 1977. PageID 285-90. Those records reveal that in November, 1970, when Plaintiff
was age twelve years and five months and in the sixth grade, school officials referred her for a
psychological evaluation because of behavior problems and possible retardation. Id. Testing
revealed that Plaintiff had a verbal IQ of 79, performance IQ of 68, and full scale IQ of 71, and
that she was functioning within the educable retarded range. Id. The psychologist recommended
that Plaintiff be placed in special classes for the educable retarded. Id. Plaintiff’s school records
also reveal that over time, Plaintiff’s grades ranged between A’s and D’s. Id.
Examining psychologist Dr. Flexman reported on March 5, 1992, that Plaintiff drank two
fifths and a twelve-pack a day, used crack four or five times a week, experienced some
blackouts, had never been in a treatment program, and that she had a high school education in
special education classes. PageID 297-302. Dr. Flexman also reported that Plaintiff was rather
disheveled in her appearance, appeared unclean, had a generally tense posture, her facial
expressions revealed mild apprehension and decreased variability, her general body movements
were restless and fidgety, and her amplitude and quality of speech were slowed and appeared
slightly retarded. Id. Dr. Flexman noted that Plaintiff was alert and oriented, her attention span
was poor, immediate recall was fair, recent memory was slightly decreased, judgment for
ordinary daily affairs was poor, insight was limited, she appeared to have a moderately
unrealistic degree of concern over her own problems and difficulties, and that she had some
obsessive thinking concerning alcohol consumption. Id. Dr. Flexman also noted that test results

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revealed Plaintiff had a verbal IQ of 65, a performance IQ of 65, and a full scale IQ of 63, she
was functioning within the mild range of retardation, and that her reading abilities were within
the mild range of retardation at the 3.7 grade level. Id. Dr. Flexman identified Plaintiff’s
diagnoses as polysubstance abuse and mild mental retardation and he assigned her a GAF of 60.
Id. Dr. Flexman opined that Plaintiff would not be capable of handling her own financial affairs,
that her ability to understand and remember simple one or two step job instructions, while fair,
would be difficult for her on a sustained basis due to her substance abuse issues, and her abilities
to sustain concentration and attention and to get along with others were decreased. Id.
Examining physician Dr. Danopulos reported on December 18, 2006, that Plaintiff
presented with four major complaints which she alleged kept her from working including low
back pain, right shoulder pain, right knee pain, and asthma with effort-related shortness of
breath, that she last saw a physician two years ago, she did not drink and never did, and that she
did not use drugs although she used crack cocaine for ten years and stopped using two years ago.
PageID 305-14. Dr. Danopulos also reported that Plaintiff’s lungs were clear, she had full ranges
of motion of her upper and lower extremities, her right shoulder had normal but painful motions,
her right knee had normal and painless motions, her spine was painless to pressure, her
paravertebral muscles were soft and painless to pressure, and that her straight leg raising was
normal. Id. Dr. Danopulos noted that Plaintiff got on and off the exam table without difficulty,
squatting and arising from squatting triggered right knee pain, heel and toe gait was normal, that
there were no neurological findings, and lumbosacral spine xrays were normal. Id. Dr.
Danopulos also noted that his objective findings were lumbar spine arthralgias, right shoulder
arthralgias, right knee arthralgias, history of asthma which could not be documented, and pes
planus. Id. Dr. Danopulos opined that Plaintiff’s abilities to perform any work-related activities

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were affected by her bilateral pes planus which triggered pain in her right knee and lumbar spine
when she walked and the right shoulder arthralgias plus her history of asthma. Id.
Examining psychologist Dr. Bonds reported on December 20, 2006, that Plaintiff
graduated from high school, attended college for one year, was currently working part-time
cleaning houses, previously worked at Hampton Inn in housekeeping and at Economy Linen, has
not seen her physician for a few years, in the past went to Daymont Behavioral Health and
participated in group therapy for two years, drank about forty ounces of beer on a daily basis,
began drinking when she was twelve years old, in the past has used marijuana, Valium, blue tips,
soapers, and crack, did crack on a daily basis for about fifteen years, last used in the summer of
2005, and that she has attended court-ordered treatment at NOVA House. PageID315-22. Dr.
Bonds also reported that Plaintiff’s mood seemed normal, her affect was broad and appropriate
to thought content, she did not display any overt signs of anxiety, she was alert and oriented, she
has some insight and understanding of her problems, seemed to recognize the negative effects of
drug use on her life, was not showing much insight about the negative effects of alcohol and
continued to drink excessively, and that she may need someone to manage funds to make sure
they were spent appropriately. Id. Dr. Bonds identified Plaintiff’s diagnoses as chronic posttraumatic stress disorder, alcohol dependence, cocaine dependence reported in full remission,
and borderline intellectual functioning and he assigned Plaintiff a GAF of 55. Id. Dr. Bonds
opined that Plaintiff’s abilities with respect to relating to others, with respect to understanding,
remembering, and following directions, and with respect to withstanding the stress and pressure
associated with day-to-day work activities were moderately limited and her ability to maintain
attention and concentration to perform simple repetitive tasks was not significantly limited. Id.

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The record contains a copy of Plaintiff’s treatment notes from Good Samaritan Crisis
Center dated January 5, 2008, through November 20, 2008. PageID 329-58. Those records reveal
Plaintiff’s health care providers identified her diagnoses as alcohol dependence, cocaine
dependence, post-traumatic stress disorder, and learning disorder NOS, that she saw a counselor
and psychiatrist, and that over time, it was noted that she was staying sober. Id. Those notes also
reveal that over time, Plaintiff reported that she continued to feel depressed, continued to have
flash-backs and nightmares, that at one point she left NOVA House because she did not feel safe
in the environment, and that Plaintiff was eventually referred to DayMont Behavioral Health. Id.
The record contains a copy of Plaintiff’s treatment notes from DayMont West dated
August 15, 2008, through October 6, 2009. PageID 379-92; 417-60. Those notes reveal that
Plaintiff’s health care providers identified her diagnoses as chronic post-traumatic stress
disorder, panic disorder with agoraphobia, and adjustment disorder with mixed anxiety and
depressed mood and they assigned her a GAF of 57. Id. Those notes also reveal that Plaintiff
received treatment with a counselor and a psychiatrist and that over time she complained of
depression, and flash-backs. Id.
The record contains a copy of a report from Crisis Care dated March 26, 2010. PageID
462-78. That report reveals that Plaintiff was a self-referral seeking mental health treatment, that
her diagnoses were schizophrenia undifferentiated type, post-traumatic stress disorder, and
alcohol dependence, and that her GAF was 44. Id. Plaintiff reported that she needed to get back
to DayMont and back on her medications, reported hearing voices, had been in treatment in
DayMont on three different occasions in 2001, 2006, and 2008, for a year each time, and that she
needed help remaining alcohol and drug-free. Id. Plaintiff was referred to DayMont. Id.

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An individual treatment plan dated April 5, 2010, from DayMont West reveals that
Plaintiff sought mental health treatment reporting that she needed to get Social Security and a
permanent house and that she wanted to attend group, AA, and anger management. PageID 47982.
A Transfer/Discharge Summary from Crisis Care dated April 19, to June 24, 2010,
reveals that Plaintiff was a self-referral seeking mental health treatment, she was discharged and
linked with DayMont for treatment, her diagnoses were schizophrenia undifferentiated type,
post- traumatic stress disorder, and alcohol dependence, and that her GAF was 44. PageID 48385.
An initial psychiatric evaluation from DayMont West dated June 26, 2010, reveals that
Plaintiff reported she was getting more depressed, had become more socially isolated, had an
essentially normal mental exam, and that her diagnoses were major depression recurrent with
psychosis, and history of polysubstance abuse and that her GAF was 60. PageID 486-92.
Plaintiff alleges in her Statement of Errors that the Commissioner erred by failing to find
that she satisfies Listing 12.05C. (Doc. 9).
A claimant has the burden of proving that his or her impairments meet or equal the
Listings. Bowen v. Yuckert, 482 U.S. 319 (1987). In order to meet the requirements of a listed
impairment, the claimant must meet all of the elements of the listed impairment. See, Hale v.
Secretary of Health and Human Services, 816 F.2d 1078, 1083 (6th Cir. 1987), citing, King v.
Heckler, 742 F.2d 968, 973 (6th Cir. 1984) (lack of evidence indicating the existence of all the
requirements of Listing 1.05C provides substantial evidence to support the Secretary=s finding
that claimant did not meet the Listing). It is not sufficient to come close to meeting the

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requirements of a Listing. Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1989) (Secretary=s
decision affirmed where medical evidence almost establishes a disability under Listing 4.04(D)).
Listing 12.05 reads in part:
Mental Retardation and Autism: Mental retardation refers to a
significantly sub average general intellectual functioning with
deficits in adaptive behavior initially manifested during the
developmental period (before age 22)....
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60 through 70
and a physical or other mental impairment imposing additional and
significant work-related limitation of function;
...
20 C.F.R. Pt. 404, Subpt. P, App. 1 '12.05.
The regulations require that the Commissioner evaluate medical opinion evidence and
give reasons for the weight assigned to that evidence. See 20 C.F.R. § 404.1527. The reasons
must be supported by the evidence in the record and must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the medical opinion and the
reasons for that weight. See Id.
In determining that Plaintiff does not satisfy Listing 12.05C, Judge Redmond noted that
the record contains the results of IQ testing performed when Plaintiff was twelve years of age
which reveled she had a verbal IQ of 79, a performance IQ of 68, and a full-scale IQ of 71.
PageID 72. Judge Redmond also noted that examining psychologist Dr. Flexman reported in
1992, that Plaintiff’s testing revealed a verbal IQ of 65, a performance IQ of 65, and a full-scale
IQ of 63. Id.
While Judge Redmond did not reject the validity of Plaintiff's age twelve IQ test results,
he did reject Dr. Flexman’s test results noting, “Since it is possible to ‘fake’ poor IQ scores, it is
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found that the IQ scores determined by Dr. Flexman are invalid.” Id. However, in contrast to
Judge Redmond’s finding that it is possible to “fake” poor IQ scores, a review of Dr. Flexman’s
report reveals that Dr. Flexman, in fact, found that Plaintiff’s IQ scores revealed that Plaintiff
was “functioning within the mild range of retardation” and that such “appear[ed] to be an
accurate reflection of her innate intellectual level of functioning.” PageID 298. There is nothing
in Dr. Flexman’s report that indicates that he suspected that Plaintiff was “faking” or
malingering. Further, there is no other medical evidence which supports a conclusion that
Plaintiff was “faking” poor IQ test results in 1992. In other words, Judge Redmond’s conclusion
as to Plaintiff’s 1992, IQ test results is not supported by the medical evidence. Further, Judge
Redmond gave no reasons for his presumptive rejection of Plaintiff’s earlier, age 12 IQ test
results which arguably satisfy the IQ parameters of Listing 12.05C.
This Court concludes that the Commissioner’s reason for rejecting Plaintiff’s 1992 IQ
test scores as reported by Dr. Flexman is not supported by substantial evidence. In addition, the
Court concludes that the Commissioner’s failure to give any reasons for presumably rejecting
Plaintiff’s age 12 IQ test scores denotes a lack of substantial evidence upon which his decision is
based. Cf., Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007).
If the Commissioner=s decision is not supported by substantial evidence, the Court must
decide whether to remand the matter for rehearing or to reverse and order benefits granted. The
Court has the authority to affirm, modify, or reverse the Commissioner=s decision Awith or
without remanding the cause for rehearing.@ 42 U.S.C. '405(g). If a court determines that
substantial evidence does not support the Commissioner=s decision, the court can reverse the
decision and immediately award benefits only if all essential factual issues have been resolved
and the record adequately establishes a plaintiff=s entitlement to benefits. Faucher v. Secretary

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of Health and Human Services, 17 F.3d 171, 176 (6th Cir. 1994) (citations omitted); see also,
Newkirk v. Shalala, 25 F.3d 316 (6th Cir. 1994).
The fourth sentence of 42 U.S.C. Sec. 405(g) directs the entry of a final appealable
judgment even though that judgment may be accompanied by a remand order. Sullivan v.
Finkelstein, 496 U.S. 617 (1990). The fourth sentence does not require the district court to
choose between entering final judgment and remanding; to the contrary, it specifically provides
that a district court may enter judgment "with or without remanding the cause for rehearing." Id.
This Court concludes that not all of the factual issues have been resolved and the record
does not adequately establishes a plaintiff=s entitlement to benefits. Specifically, the Court notes
that there may be an arguable basis for the Commissioner to conclude that in spite of the reported
IQ scores of record, Plaintiff nevertheless does not satisfy Listing 12.05C. Accordingly, this
matter should be remanded for further administrative proceedings.
It is therefore recommended that the Commissioner’s decision that Plaintiff is not
disabled be reversed. It is also recommended that this matter be remanded to the Commissioner
for further administrative proceedings.
s/ Michael R. Merz
United States Magistrate Judge

January 15, 2013

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
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Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

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