Vaughn v. Commissioner of Social Security

Filing 14

ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED. Signed by Judge Timothy S. Black on 2/21/2014. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TINA VAUGHN,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 3:13-cv-122
Judge Timothy S. Black

ORDER THAT: (1) THE ALJ’S NON-DISABILITY FINDING IS FOUND
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING
BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the
administrative law judge (“ALJ”) erred in finding the Plaintiff “not disabled” and
therefore unentitled to supplemental security income (“SSI”) and disability insurance
benefits (“DIB”). 1 (See Administrative Transcript (“PageID”) (PageID 45-55) (ALJ’s
decision)).
I.
On May 22, 2009, Plaintiff applied to the Social Security Administration for DIB
and SSI benefits, asserting that she could no longer work beginning on March 15, 2006,
because she was under a disability within the meaning of the Social Security Act.
Plaintiff’s Title II application was for Medicare coverage as a Medicare-qualified government
employee. (PageID 45). The Plaintiff’s earnings record shows that she acquired sufficient
quarters of coverage to remain insured through March 31, 2014. (Id.) Therefore, Plaintiff must
establish disability on or before that date in order to be entitled to Medicare coverage as a
Medicare-Qualified government employee. (Id.)
1

(PageID 178-89). Specifically, Plaintiff claimed that she was disabled due to
subcutaneous nodules, 2 anxiety, PTSD, and borderline intellectual functioning. (PageID
49). Plaintiff’s applications were denied initially and upon reconsideration. (PageID
109-11, 122-1). Plaintiff timely filed a request for hearing. (PageID 136-37).
On July 7, 2011, a hearing was held in Dayton, Ohio before an ALJ. (PageID 66).
Plaintiff was represented at the hearing by attorney Robert Walter. (Id.) A vocational
expert also appeared and testified at the hearing. (Id.) On September 14, 2011, the ALJ
denied Plaintiff’s claim for benefits. (PageID 42-61). Following a timely filed request
for review of the hearing decision, the Appeals Council declined review, making that
decision the final administrative disposition of Plaintiff’s claim. (PageID 34-41, 26164).
At the time of Plaintiff’s hearing before the ALJ, she was over 50 years old and
was considered to be a “person closely approaching advanced age.” 20 C.F.R.
§§ 404.1563(d); 416.963(d). (PageID 53). Plaintiff is a high school graduate who
attended special education classes. (PageID 69, 72). Plaintiff’s past relevant work
experience was working as a janitor, a cashier/checker, a drive-thru sales clerk, and a
machine feeder. 3 (PageID 23).

2

Subcutaneous nodules are any sort of lump or bump that occurs beneath the skin.

Past relevant work experience is defined as work that the claimant has “done within the last 15
years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful
activity.” 20 C.F.R. § 416.965(a).
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2

The ALJ’s “Findings,” which represent the rationale of his decision, were as
follows:
1. The claimant meets the insured status requirements of the Social Security Act
through March 31, 2014.
2. The claimant has not engaged in substantial gainful activity since March 15,
2006, the alleged onset date (20 CFR 404.1572, et seq., and 416.971, et seq.).
3. The claimant has the following severe impairments: multiple subcutaneous
nodules on both legs, anxiety disorder diagnosed as post-traumatic stress
disorder (PTSD), and borderline intellectual functioning (20 CFR 404.1520(c)
and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except that she is limited to
performing simple tasks featuring a minimal degree of personal contact in the
workplace and no production quotas.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7. The claimant was born on August 12, 1958 and was 47 years old, which
defined her as a younger individual, age 18-49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills. (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
3

10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security
Act, from March 15, 2006, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
(PageID 47-55).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by
the Social Security Regulations, and was therefore not entitled to SSI or DIB. (PageID
55).
On appeal, Plaintiff argues that: (1) the ALJ erred in failing to consider whether or
not Plaintiff’s intellectual deficits meet or equaled Listing 12.05(c); (2) the ALJ erred in
finding that Plaintiff experienced only “moderate” limitations in social functioning; and
(3) the ALJ erred in omitting several well evidenced mental health limitations from
Plaintiff’s RFC without explanation or support. The Court will address each error in turn.
II.
The Court’s inquiry on appeal is to determine whether the ALJ’s non-disability
finding is supported by substantial evidence. 42 U.S.C. § 405(g). 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). In performing this
review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359,
362 (6th Cir. 1978). If substantial evidence supports the ALJ’s denial of benefits, that
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finding must be affirmed, even if substantial evidence also exists in the record upon
which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
“The Commissioner’s findings are not subject to reversal merely
because substantial evidence exists in the record to support a
different conclusion. The substantial evidence standard presupposes
that there is a “zone of choice” within which the Commissioner may
proceed without interference from the courts. If the Commissioner’s
decision is supported by substantial evidence, a reviewing court must
affirm.”
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present
sufficient evidence to show that, during the relevant time period, she suffered an
impairment, or combination of impairments, expected to last at least twelve months, that
left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Plaintiff’s testimony
Plaintiff testified that her last job involved working as a school janitor. (PageID
69). She left the job because she did not get along with her boss and had “gotten into it”
with her. 4 (PageID 70). Plaintiff had also been written up for “getting into it” with a
night crew employee. (PageID 73). During the day, she had words with a couple of the
teachers at the school where she worked. (Id.) Even though Plaintiff was a janitor at the
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Plaintiff testified that “[s]ome things were said and she wanted to fire me.” (PageID 70).
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school, she would yell at teachers who spilled things and refused to clean the spill up
themselves. 5 (PageID 73-74). Plaintiff had also been written up for this behavior.
(PageID 74). Sometimes while on the clock, Plaintiff would sleep in an office at the
school alongside her “supervisor.” (PageID 74-75). Both Plaintiff and her supervisor
were let go at the same time. (Id.) When asked about the biggest problem affecting her
ability to work, Plaintiff explained: “Getting along with people. I’m going through a lot
of mood swings. I don’t know. It’s people who act like they don’t know how to talk to
you. I ain’t going to hold my tongue…” (PageID 70).
Plaintiff explained that she had problems getting along with others even when she
was little, fighting with other kids and her principals. (PageID 79). Plaintiff also shared
that she is a victim of considerable childhood abuse and continues to think about it all the
time as an adult. 6 (PageID 76). She has crying spells at least every other day. (PageID
76-77). She also has problems with comprehension and does not exhibit a level of
independence typical for a woman of her age. She explained that she often relies on her
son to read her mail and when she tries to take care of bills she has “messed up” and had
utilities cut off. (PageID 77). She cannot spell well enough to write a letter. (PageID

“I tell them to get it up. They spilled it. They grown. Get it up. I’m not going to clean up
after no grown person.” (PageID 73).
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Plaintiff’s father mentally and physically abused her. (PageID 412). Plaintiff’s father was an
alcoholic and had drug problems. (PageID 413). Plaintiff maintains that she and her sister killed
their father in a shootout in the 1980s. (Id.) Plaintiff was arrested, but never charged in his
death. (Id.) Plaintiff claims that she began drinking alcohol at age 10 and began using drugs at
age 14. (PageID 414).
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77-78). Plaintiff also testified that she had shown up four hours early for her hearing
because she was confused about the time. (PageID 78).
Plaintiff also testified about her typical daily activities. (PageID 71). She does not
cook, grocery shop, or associate with any friends. (Id.) She generally sleeps during the
day and stays up watching television at night. (Id.) As often as twice per day, Plaintiff
does not make it to the bathroom on time and messes herself. (PageID 75-76).
2.

Medical evidence of record

On April 1, 2008, Plaintiff was written a prescription refill for her anti-depressant
medication while at the Miami Valley Hospital emergency room for an acute illness.
(PageID 295, 301).
Plaintiff’s primary care has been through the Corwin Nixon Health Center. On
January 15, 2009, Plaintiff was noted to be tearful at her appointment with a history of
severe depression and suicidal thoughts. (PageID 332). The next month, records reflect
that Plaintiff was experiencing suicidal ideation approximately once per week. (PageID
335-37). A treatment note dated April 16, 2009 describes Plaintiff as “tearful, very
stressed, depressed, feels like she is falling apart.” (PageID 327). In May 2009, Plaintiff
was similarly noted to be “very depressed.” (PageID 326). She was tearful with a very
flat affect, reported insomnia, and curled up into a ball during the appointment stating “I
don’t know, I just don’t know.” (Id.) Most of Plaintiff’s treatment at Corwin Nixon
revolved around her physical health; however, on May 9, 2011, she was noted to be
depressed. (PageID 543).
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In January 2010, Plaintiff began receiving mental health services through Eastway
Behavioral. (PageID 481). In March 2010, Plaintiff endorsed having “a really bad
week” marked by thoughts of her history of abuse. (PageID 480). On May 10, 2010,
Plaintiff explained to her counselor that she had been “staying in” to avoid other people
and resulting temper flares. (PageID 478). Plaintiff was discharged from Eastway on
June 29, 2010 because she stopped attending appointments. (PageID 466).
3.

Opinion evidence of record

On March 28, 2007, Plaintiff was evaluated by state agency consultant Giovanni
M. Bonds, Ph.D. (PageID 267-75). Plaintiff told Dr. Bonds about the problems she had
getting along with others during her work as a school janitor. (PageID 268). Plaintiff got
up and left during her evaluation and had to return the next day for it to be completed.
(PageID 269). Dr. Bonds noted that Plaintiff seemed moderately depressed and that she
reported thoughts of suicide and mood swings where she becomes angry, argumentative,
or violent. (Id.) Dr. Bonds also performed IQ testing which placed Plaintiff’s Full Scale
IQ score at 66. 7 (PageID 271). Testing also revealed that that Plaintiff is “far below
average” in a number of significant mental functional areas including: verbal
comprehension, expression, reasoning, factual knowledge and information, social
judgment, word knowledge and conceptualization, alertness to details, and her ability to
use logical and conceptual thinking. (Id.)

A Full Scale IQ score between 90-109 are considered average. Below 69 is considered
intellectually deficient.

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8

Ultimately, Dr. Bonds diagnosed Plaintiff with posttraumatic stress disorder,
alcohol dependence, drug abuse, and borderline intellectual functioning. (PageID 273).
He assigned her a GAF score of 50. 8 (Id.) In terms of work related mental abilities, Dr.
Bonds opined that Plaintiff is mildly limited in her ability to understand, remember, and
follow instructions, as well as in her ability to maintain attention, concentration,
persistence, and pace to perform simple repetitive tasks. (PageID 273-74). When
considering Plaintiff’s social deficits and her ability to tolerate workplace stress, Dr.
Bonds stated:
Tina’s mental ability to relate to peers, supervisors or the public is
severely limited. Tina has very poor judgment, reasoning, and problem
solving skills. She is very angry and easily becomes provoked,
argumentative, and aggressive. She has had difficulty on past jobs
getting along with authority figures and coworkers. She reports that she
often gets into conflicts with people in the community and with people
in her family if she is around them.
(PageID 273).
Tina’s mental ability to withstand the stress and pressure associated
with day to day work activities is moderately limited. Because of
Tina’s problems with her temper she would have severe difficulties
getting along with others and handling interpersonal stress and
conflicts on the job. Her poor judgment and reasoning abilities also
limits her ability to handle demands for speed, accuracy and
productivity, and for dealing with changes in the workplace.
(PageID 274).

The Global Assessment of Functioning (“GAF”) is a numeric scale (0 through 100) used by
mental health clinicians and physicians to rate subjectively the social, occupational, and
psychological functioning of adults. A GAF score of 41-50 indicates serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).
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On May 1, 2009, Barbara Wise, a CNP who treated Plaintiff at Corwin Nixon,
completed a form for the Ohio Department of Job and Family Services in which she
opined that Plaintiff is unemployable as a result of her mental health symptoms. (PageID
445-46). Nurse Wise explained that Plaintiff has a history of severe depression with
suicidality and that she has been consistently tearful with a flat affect. (PageID 445).
Dr. Bonds evaluated Plaintiff for a second time on August 20, 2009. (PageID 41220). Plaintiff presented as “depressed and irritated” during the evaluation. (PageID 414).
She endorsed frequent thoughts of suicide and the same problems with emotional selfcontrol described during her 2007 evaluation. (PageID 414). Dr. Bonds tested Plaintiff’s
IQ again resulting in a Full Scale score of 63. (PageID 416). Dr. Bonds removed drug
abuse as one of Plaintiff’s diagnoses and left her GAF score at 50. (PageID 418). Dr.
Bonds appraisal of Plaintiff’s functioning remained largely unchanged from his 2007
evaluation with ongoing severe deficits in relating to others and moderate impairment in
her ability to withstand day-to-day work related stress and pressure. (PageID 418-19).
On September 23, 2009, state agency consulting reviewer Paul Tangeman, Ph.D.
reviewed the evidence of record and offered his opinions regarding Plaintiff’s diagnoses
and limitations. (PageID 424-41). Dr. Tangeman largely adopted Dr. Bonds’ diagnoses;
however, he found that Plaintiff has only “moderate” limitations in social functioning.
(PageID 428-38). In support of his disagreement with Dr. Bonds, Dr. Tangeman cited
Plaintiff’s “ability to behave in a cooperative, pleasant manner” during Dr. Bonds’ own
examination. (PageID 426). Nevertheless, Dr. Tangeman did opine that Plaintiff has a
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number of specific moderate work related limitations, including her ability to maintain
attention and concentration for extended periods, to complete a normal workday and
workweek without interruption, and to accept instructions and respond appropriately to
criticism from supervisors. (PageID 424-25). Another reviewer affirmed Dr.
Tangeman’s assessment on February 16, 2010 without much substantive comment.
(PageID 443).
4. The vocational expert’s testimony
Vocational expert Suman Srinivasan appeared and testified at Plaintiff’s hearing.
(PageID 79). Ms. Srinivasan identified Plaintiff’s past work as that of a janitor, a
cashier/checker, a drive-thru sales clerk, and a machine feeder. (Id.) She classified these
jobs as being unskilled to semi-skilled and involving light to heavy level exertion. (Id.)
When asked a hypothetical question reflecting the limitations in the assigned residual
functional capacity, Ms. Srinivasan was able to identify a substantial numbers of jobs
which could be performed. (PageID 80).
Upon questioning from Plaintiff’s counsel, Ms. Srinivasan explained that she
could not identify any jobs in the national economy where an employee would not have
to at least relate to a supervisor. (PageID 81-82). She further testified as follows:
REPRESENTATIVE: If an employee were consistently argumentative or aggressive
with their supervisor, could that affect their ability to maintain
these positions long term?
MS. SRINIVASAN: Yes, it would.
REPRESENTATIVE: Would it be likely that such an employee would be terminated?
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MS. SRINIVASAN: It is likely, yes.
(PageID 82).
Ms. Srinivasan also discussed the productivity expectations at the jobs she
identified, explaining that all work comes with an expectation that an employee work
consistently. (PageID 82-83).
REPRESENTATIVE: If an employee were unable to work consistently, even
performing simple repetitive tasks, would they be able to maintain
any positions that you’ve identified long term?
MS. SRINIVASAN: If they are not able to complete what’s been given to them and it
happens again and again, they would not be able to retain
competitive employment.
REPRESENTATIVE: In terms of accuracy, if an employee is careless in their work on
any sort of routine basis, not meeting basic accuracy demands,
would they be able to maintain these positions long term?
MS. SRINIVASAN:

No, sir.

(PageID 82-83).
5.

The ALJ’s decision

The ALJ found that Plaintiff did not engage in substantial gainful activity during
the period of disability alleged. (PageID 48). He further determined that Plaintiff
suffered from the severe impairments of multiple subcutaneous nodules on both legs, an
anxiety disorder diagnosed as post-traumatic stress disorder, and borderline intellectual
functioning. (Id.)

12

The ALJ’s residual functional capacity (“RFC”) 9 finding reads:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
medium work 10 as defined in 20 CFR 404.1567(c) and 416.967(c) except
that she is limited to performing simple tasks featuring a minimal
degree of personal contact in the workplace and no production quotas.
(PageID 53).
The ALJ ultimately concluded that Plaintiff is incapable of returning to her past
work, but that there are significant numbers of other jobs in the national economy which
she can perform. (PageID 53-54). As a result, he finds Plaintiff was not disabled under
the Social Security Act from March 15, 2006 through the date of his decision. (PageID
56-57).
B.
First, Plaintiff alleges that the ALJ erred in failing to consider whether or not she
meets or equals Listing 12.05(C).
For a claimant to show that her impairment matches an impairment in the Listings,
she must meet all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530
(1990). Additionally, the claimant must prove that the disability lasted for a continuous
period of not less than 12 months to meet the Listing. 42 U.S.C. § 423(d)(1)(A). “[I]t is

A claimant’s residual functional capacity (“RFC”) is an assessment of “the most [she] can still
do despite [her] limitations.” 20 C.F.R. § 416.945(a)(1).

9

Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighting up to 25 pounds. If someone can do medium work, we determine
that he or she can also do sedentary and light work. 20 C.F.R. § 416.967(c).
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the claimant’s burden to show that he meets or medically equals an impairment in the
Listings.” Todd v. Astrue, No. 1:11cv1099, 2012 U.S. Dist. LEXIS 91992, at *9 (N.D.
Ohio May 15, 2012). “In order to be found disabled based upon a listed impairment, the
claimant must exhibit all the elements of the listing. It is insufficient that a claimant
comes close to meeting the requirements of a listed impairment.” Elam ex rel. Golay v.
Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003).
Listing 12.05 requires a finding of disability based on the claimant’s intellectual
disability:
Intellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period, i.e., the
evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when…(C)
[the claimant has demonstrated] a valid verbal, performance, or
full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related
limitation of function.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Section 12.05(C). A claimant must establish three
elements in order to satisfy Listing 12.05(C): (1) that she experiences “significantly
subaverage general intellectual functioning with deficits in adaptive functioning 11 [that]
initially manifested during the developmental period” (i.e., the diagnostic description);

Loss of adaptive functioning is “manifested by difficulties in performing activities of daily
living, maintaining social relationships, or maintaining concentration, persistence, or pace.” 20
C.F.R., Pt. 404, Subpt. P, App. 1 at Section 12.00(C)(4). See also West v. Comm’r of Soc. Sec.,
240 F. App’x 692, 698 (6th Cir. 2007) (“Adaptive functioning includes a claimant’s
effectiveness in areas such as social skills, communication, and daily living skills.”).
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(2) that she has a “valid verbal, performance, or full scale IQ of 60 through 70;” 12 and
(3) that she suffers from “a physical or other mental impairment imposing an additional
and significant work-related limitation of function.” Id.
First, Plaintiff maintains that deficits in adaptive functioning initially manifested
during her developmental period as evidenced by the fact that she was in special
education classes as a child. (PageID 72, 268, 413). The evidence also indicates that
Plaintiff had difficulty interacting with others while in school. (PageID 78-79, 268, 413).
Second, valid testing performed by Dr. Bonds established the requisite IQ scores on two
separate occasions nearly two years apart. (PageID 271, 416). Finally, Plaintiff suffers
from significant mental and social impairments imposing additional work-related
limitations. (PageID 48-51).
There is no evidence in the record that the ALJ even considered Listing 12.05.
Defendant’s argument as to why Plaintiff failed to meet the Listing is entirely
speculative. “Courts are not at liberty to speculate on the basis of an administrative
agency’s order…The court is not free to accept appellate counsel’s post hoc
rationalization for agency action in lieu of reasons and findings enunciated by the Board.”
Hyatt Corp. v. N.L.R.B., 929 F.2d 361, 367 (6th Cir. 1991). As explained in Section II.C,
infra, the Court finds that there is significant evidence to support a finding that Plaintiff
meets or equals Listing 12.05(C).
IQ scores do not alone establish that the claimant suffered sub-average intellectual functioning
or deficits in adaptive functioning during the developmental period. Turner v. Comm’r of Soc.
Sec., 381 F. App’x 488, 491-92 (6th Cir. 2010) (“A claimant must produce evidence beyond his
present IQ scores to show that he exhibited deficits during his developmental period.”).

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C.
Next, Plaintiff maintains that the ALJ erred in finding that she experiences only
“moderate” limitations in social and adaptive functioning.
Dr. Bonds indicated that Plaintiff was “significantly impaired in her ability to
relate to others.” (PageID 19). However, the ALJ concluded that this opinion was “not
entitled to significant weight because the record demonstrate[d] that [Plaintiff’s] ability to
relate to others is no more than moderately impaired.” (PageID 20). Specifically, the
ALJ cited treatment and examination records that reported Plaintiff to be “pleasant and
cooperative.” (PageID 19). Rather than adopt Dr. Bonds’ opinion, the ALJ gave great
weight to state agency reviewing medical source, Dr. Tangeman.
The record evidence shows that Plaintiff “lost a job in 2007 because of a dispute
with her boss.” (PageID 49). In Plaintiff’s sworn testimony she described having
significant conflicts with others at her place of work, arguing with her boss, other
employees, and even teachers at the school where she worked. (PageID 70, 73-74). This
mirrors her reports to consulting examiner Dr. Bonds. (PageID 268, 413). The ALJ’s
characterization of Plaintiff’s past work as “successful” or otherwise inconsistent with
severe problems in social functioning is unsupported by the record.
Additionally, the ALJ’s reliance upon Dr. Bonds’ reports as evidence of only
moderate social deficits is flawed because the evidence contradicts a finding that Plaintiff

16

was wholly “pleasant and cooperative” throughout her evaluations. 13 (PageID 50).
Plaintiff actually left during the middle of her 2007 evaluation, requiring it to be
completed the next day. (PageID 269). At the evaluation Plaintiff failed to initiate
conversation, was described as “very animated,” and appeared to have difficulty
concentrating on Dr. Bonds’ testing. (PageID 271-72). In the 2009 report, Dr. Bonds
described Plaintiff’s mood as “depressed and irritated.” (PageID 414). Even if, however,
Plaintiff happened to be “pleasant” during her meetings with Dr. Bonds, the relevant
inquiry is Plaintiff’s ability to maintain social functioning on a sustained basis, not during
singular examinations. Gayheart v. Comm’r, 710 F.3d 365, 378 (6th Cir. 2013).
The Commissioner also found that Plaintiff does not suffer from the “deficits in
adaptive functioning” because she engages in activities like grocery shopping, fishing,
laundry, and cooking. 14 However, in Brown v. Sec’y of Health & Human Servs., 948
F.2d 268 (6th Cir. 1991), the Sixth Circuit found that a claimant who was able to grocery
shop, raise children, do his own laundry, use an atlas, read a newspaper, and perform
work as an over-the-road truck driver did not demonstrate abilities inconsistent with

The Commissioner’s characterization of and reliance on Plaintiff’s “pleasant” demeanor at Dr.
Bonds’ evaluations as evidence undermining that physician’s own conclusions is entirely
unreasonable, unsupported, and contrary to the regulatory directives regarding the assessment of
mental impairments and limitations. Moreover, the substantive evidence regarding Plaintiff’s
past work experience reveals the presence of severe social deficits consistent with Dr. Bonds’
assessments.
13

It is important to note, however, that the evidence indicates that Plaintiff receives help with
grocery shopping, does limited cooking, and does laundry [only] once a month. (PageID 75-78).

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adaptive deficits under Listing 12.05(C). 15 The Commissioner does not point the Court
to any activities performed by Plaintiff which demonstrate any level of independence
beyond that present in Brown. In fact, the evidence supports a finding that Plaintiff has
significant deficits in maintaining the level of independence and socialization reasonably
expected of a person her age. For example, Plaintiff exhibits difficulty maintaining stable
relationships with others, she relies upon her son to read her mail, her attempts at
managing her own bills have resulted in utility shutoffs, she does limited cooking and
gets assistance with her grocery shopping, her past attempts at employment were met by
significant difficulties interacting with others and meeting job demands, and she wets her
pants more than once each day. (PageID 75-78).
Accordingly, a finding that Plaintiff does not suffer from deficits in adaptive and
social functioning is not support by the record. Rather, there is substantial evidence
which supports a finding that Plaintiff meets Listing 12.05(c). 16

Id. at 270 (“[b]y their late teens…[people with mild mental retardation] can acquire academic
skills up to approximately sixth-grade level; during their adult years, they usually achieve social
and vocational skills adequate for minimum self-support, but may need guidance and assistance
when under unusual social or economic stress. At the present time, virtually all people with Mild
Mental Retardation can live successfully in the community, independently or in supervised
apartments or group homes…” ).
15

While the Court finds significant evidence of deficits in social and adaptive functioning, such
evidence does not date back to Plaintiff’s alleged disability onset date of March 15, 2006.
Rather, the Court finds sufficient evidence in the record as of March 28, 2007, the date of Dr.
Bonds first evaluation. (PageID 267-75).
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D.
Finally, Plaintiff alleges that the ALJ erred in omitting several well evidenced
mental health limitations from her RFC without explanation or support.
The ALJ maintains that Plaintiff’s sporadic mental health treatment is evidence of
less severe social functional limitations. (PageID 50). However, the failure to seek or
follow through with treatment can be a symptom of severe mental illness. White v.
Comm’r, 572 F.3d 272, 283 (6th Cir. 2009). 17 In Plaintiff’s case, her treatment notes
reflect her having difficulty controlling her emotions during medical appointments.
(PageID 326-327). She is also described as “staying in” or “shutting out” other people,
providing a reasonable explanation for her reluctance to attend treatment appointments.
(PageID 478-81).
Dr. Tangeman provides no reason for discrediting Dr. Bonds’ assessment of
“severe” social restrictions. (PageID 426). Dr. Tangeman is certainly not in a better
position to appraise Plaintiff’s demeanor at Dr. Bonds’ evaluation than Dr. Bonds
himself. (Id.) Dr. Bonds is a two time examiner who evaluated the claimant over the
course of three separate days and performed objective psychological testing. (PageID
267-75, 412-420). Moreover, Dr. Bonds prepared two comprehensive narrative reports
outlining in detail his observations, Plaintiff’s reports, his conclusions, and the reasons
therefor. (Id.) Finally, Dr. Bonds’ 2007 and 2009 opinions are consistent with one

See also Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (listing cases recognizing that
a mentally ill person’s noncompliance with treatment “can be…the result of the mental
impairment itself and, therefore, neither willful nor without a justifiable excuse.”).
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another, with Plaintiff’s testimony, with the opinion of Plaintiff’s counselor, and with the
observations in Plaintiff’s treatment notes which reflect significant deficits in mood
regulation and emotional control. (PageID 70-77, 267-75, 326-7, 335-37, 412-20, 44546, 478-81).
Dr. Tangeman identified a number of mental functional deficits, including that
Plaintiff had at least moderate limitations in her ability to maintain attention and
concentration for extended periods, to complete a normal workday and workweek
without interruption, and to perform at a consistent pace without an unreasonable number
and length of rest periods. (PageID 424-25). Dr. Bonds noted that Plaintiff was limited
in her ability to “handle demands for speed, accuracy and productivity, and for dealing
with changes in the workplace.” (PageID 274). The ALJ only limits Plaintiff to simple
tasks and no production quotas. 18 (PageID 51). However, these limitations do not
address all of the limitations identified. Specifically, the ALJ failed to accommodate
Plaintiff’s difficulties with concentration, task persistence, accuracy, workplace changes,
and general reliability.
Moreover, the Court must consider the fact that Dr. Bonds was actually an
examining source, unlike Dr. Tangeman, who was only an agency reviewer. See 20
C.F.R. § 404.1527(c)(1) (“Generally, we give more weight to the opinion of a source who
has examined you than to the opinion of a source who has not examined you.”). The
regulations also strongly favor medical opinions which provide better and more
The ALJ failed to articulate what is meant by “no production quotas” or how this limitation is
meant to accommodate Plaintiff’s symptoms.

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comprehensive explanations for their conclusions under the factor of Supportability. 20
C.F.R. § 404.1527(c)(3). Unlike Dr. Bonds’, Dr. Tangeman’s opinion consists almost
entirely of checkboxes with only a single paragraph of explanatory text. Dr. Bonds’
psychological evaluation consists of sixteen pages. (Tr. 267-74, 412-19, 424-41). Dr.
Bonds’ opinions are also wholly consistent with Plaintiff’s longitudinal allegations of
disability including her sworn testimony, whereas Dr. Tangeman’s conclusions depart
dramatically from the primary pieces of evidence upon which they are based –
specifically, Dr. Bonds’ reports.
Dr. Tangeman’s opinion, alone, does not substantiate the ALJ’s rejection of Dr.
Bonds’ appraisal of Plaintiffs’ social limitations. Accordingly, the ALJ’s reliance on Dr.
Tangeman and the resulting non-disability finding are not supported by substantial
evidence.
III.
When, as here, the non-disability determination is not supported by substantial
evidence, the Court must decide whether to reverse and remand the matter for rehearing
or to reverse and order benefits granted. The Court has authority to affirm, modify or
reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately “only if all essential factual
issues have been resolved and the record adequately establishes a plaintiff’s entitlement
to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.
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1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
The Court may award benefits where the proof of disability is strong and opposing
evidence is lacking in substance, so that remand would merely involve the presentation of
cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d
at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir.
1985). Such is the case here.
Here proof of disability is overwhelming and remand will serve no purpose other
than delay. As fully recited here, in view of the medical record evidencing disability, and
the credible and controlling findings and opinions of Dr. Bonds, the ALJ failed to meet
its burden of finding substantial evidence that Plaintiff is able to engage in substantial
gainful activity. Instead, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Tina Vaughn was not entitled to disability
insurance benefits and supplemental security income beginning March 28, 2007, is
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this
matter is REMANDED to the Commissioner for an immediate award of benefits. The
Clerk shall enter judgment accordingly, and this case shall be CLOSED.
Date: 2/21/14

/s/ Timothy S. Black
Timothy S. Black
United States District Judge

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