Whitmer v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE BE CLOSED re 2 Complaint filed by Lawrence Whitmer Objections to R&R due by 2/29/2016. Signed by Magistrate Judge Michael J. Newman on 2/10/2016. (ead)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LAWRENCE WHITMER,
Plaintiff,

Case No. 3:14-cv-407

vs.
COMMISSIONER OF
SOCAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
AFFIRMED; AND (2) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and thus unentitled
to Supplemental Security Income (“SSI”).

This case is before the Court upon Plaintiff’s

Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc. 9), Plaintiff’s
reply (doc. 10), the administrative record (doc. 6),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed for SSI on April 12, 2011. PageID 203-09. Plaintiff claims disability as a
result of a number of impairments including, inter alia, bipolar disorder, depressive disorder, and
an anxiety disorder. PageID 61.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.

After initial denials of his application, Plaintiff received a hearing before ALJ Paul
Gaughen on March 11, 2013. PageID 78-109. The ALJ issued a written decision on May 31,
2013 finding Plaintiff not disabled. PageID 59-70. Specifically, the ALJ’s findings were as
follows:
1.

The claimant has not engaged in substantial gainful activity since
April 12, 2011, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: bipolar
disorder; depressive disorder; anxiety disorder; and a history of
polysubstance abuse (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, I find that the
claimant has the residual functional capacity [“RFC”] to perform a
full range of work at all exertional levels. However, the work
needs to be suitable for someone with more than marginal but less
than limited education, or at about the fifth or sixth grade level.
He can learn and apply simple instructions but not detailed
instructions, that is work with no more than four to five steps. He
can perform limited collaboration with others as he works best
alone; however, he can engage in routine interaction as required
with coworkers and/or supervisors. He can respond to direction
from supervisors if appropriately given. He cannot work with retail
public even for superficial interactions.

5.

The claimant is capable of performing [his] past relevant work as a
cleaner and day laborer. This work does not require the
performance of work-related activities precluded by the claimant’s
[RFC] (20 CFR 416.965).

6.

The claimant has not been under a disability, as defined in the
Social Security Act, since April 12, 2011, the date the application
was filed (20 CFR 416.920(f)).

PageID 61-69.

2

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 40-42.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).
B. Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 62-68. Plaintiff, in his Statement of Errors, sets forth a detailed summary of
the record evidence. Doc. 7 at PageID 624-28. The Commissioner, in response, defers to the
ALJ’s recitation of the relevant medical evidence and presents no specific objection to Plaintiff’s
summary. Doc. 9 at PageID 641. Accordingly, except as otherwise noted in this Report and
Recommendation, the undersigned incorporates Plaintiff’s undisputed summary and the ALJ’s
recitation of the evidence.
II.
A. Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
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). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if

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substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B. “Disability” Defined
To qualify for disability benefits, a claimant must be under a “disability” as defined by
the Social Security Act. 42 U.S.C. § 1382c(a)(3)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are “medically determinable”;
expected to result in death or which have lasted or can be expected to last for a continuous period
of not less than twelve months; and severe enough to prevent a claimant from (1) performing his
or her past job and (2) engaging in “substantial gainful work” that is available in the regional or
national economies. Id. §§ 1382c(a)(3)(A), (B).
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

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3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 416.920(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D.
Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled under
the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir.
1997).
III.
In his Statement of Errors, Plaintiff argues that the ALJ: (1) erred in finding that he did
not meet or equal Listing § 12.05(C); and (2) is bound by the doctrine of res judicata as set forth
in Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). Doc. 7 at PageID 622.
Having reviewed the administrative record and the parties’ briefs, and also having carefully
considered the ALJ’s analysis leading to the non-disability finding here at issue, the Court finds
that the ALJ carefully reviewed the record, reasonably concluded that Plaintiff’s impairments do
not meet or equal Listing § 12.05, and properly determined that res judicata does not apply.
Thus, as more fully explained herein, the Court finds the ALJ’s decision supported by substantial
evidence and recommends that the Court affirm the ALJ’s non-disability finding.
A.

Res Judicata

The Court will address Plaintiff’s second assignment of error initially because it raises
the issue of the proper standard of review. Plaintiff argues that the doctrine of res judicata, as set
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forth in Drummond, requires a disability finding. Doc. 7 at PageID 633-35. In Drummond, the
Sixth Circuit held that Social Security claimants and the Commissioner are barred from relitigating issues that have previously been determined at the administrative level. Drummond,
126 F.3d at 842. Drummond mandates that, absent evidence that a claimant’s condition has
improved, findings issued by an ALJ as part of a prior disability determination are binding on an
ALJ in a subsequent proceeding. Id. at 841.
Here, Plaintiff was previously approved for SSI benefits and received such benefits until
his incarceration in 2008,3 which lasted until February 2010. PageID 59, 89. Plaintiff claims
that because “there has never been a determination following the approval that he was no longer
mentally disabled” or that his condition had improved, the doctrine of res judicata requires a
disability finding. Doc. 7 at PageID 634.
The undersigned finds res judicata inapplicable to the circumstances presented here.
Notably, Plaintiff fails to bring to the Court’s attention his February 2010 application for SSI
benefits, which was denied at the agency level in December 2010. PageID 59, 112. Plaintiff did
not appeal that decision, thereby making the December 2010 non-disability determination final.
Id.; 20 C.F.R. § 416.1405 (“[a]n initial determination is binding unless you request a
reconsideration within the stated time period, or we revise the initial determination”). Therefore,
even though Plaintiff was found disabled prior to 2008, he was subsequently found not disabled
in an agency proceeding in 2010. Insofar as Plaintiff had a res judicata argument regarding his
pre-incarceration approval for SSI benefits, it should have been raised in conjunction with his

3

Under the Social Security statutory and regulatory scheme, Plaintiff was ineligible to receive
Social Security benefits during his incarceration. See 42 U.S.C. § 1382(e)(1)(A) (excluding from
eligibility for SSI an inmate of a public institution); 20 C.F.R. § 416.211 (same); see also Schweiker v.
Wilson, 450 U.S. 221, 224 (1981).

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2010 application. Whether or not such an argument was raised at that time, it is now moot in
light of the December 2010 non-disability finding, rendered final by Plaintiff’s failure to appeal.
Accordingly, in light of the intervening non-disability determination in December 2010,
the undersigned finds the ALJ did not err in declining to apply Drummond to Plaintiff’s previous
approval for SSI benefits. See Messer v. Astrue, No. 09-342-DLB, 2010 WL 4791956, at *4-5
(E.D. Ky. Nov. 18, 2010).4
B.

Listing § 12.05

Plaintiff next argues that the ALJ erred at Step Three of the sequential benefits analysis in
concluding that his impairments do not meet or medically equal Listing § 12.05(C). Doc. 7 at
PageID 630-33.
The Listing of Impairments “describes impairments the SSA considers to be severe
enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience.” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 653 (6th Cir.
2009) (internal quotations omitted). “Because satisfying the [L]istings yields an automatic
determination of disability . . . the evidentiary standards [at Step Three] . . . are more strenuous
than for claims that proceed through the entire five-step evaluation.” Peterson v. Comm’r of Soc.
Sec., 552 F. App’x 533, 539 (6th Cir. 2014). Plaintiff has the burden of proving that he or she

4

Arguably, Drummond would instruct that ALJ Gaughen was bound by the 2010 non-disability
determination in the absence of charged circumstances. Cf. Miller v. Astrue, No. 3:11-cv-133, 2012 WL
220234, at *3 (S.D. Ohio Jan 25, 2012) Report and Recommendation adopted, 2012 WL 4504545 (S.D.
Ohio Sept. 28, 2012) (holding that res judicata applies to initial determinations of disability made at the
administrative level); but see Johnson v. Comm’r of Soc. Sec., No. 13-cv-14797, 2015 WL 730094, at *39
n.2 (E.D. Mich. Feb. 19, 2015). Here, ALJ Gaughen conducted a de novo review of Plaintiff's application
without specifically applying res judicata to the 2010 non-disability determination. PageID 59-70. The
Commissioner does not argue that his failure to do so was in error. See doc. 9. Thus, Plaintiff received
the benefit of a de novo determination of his disability status through utilization of the five-step sequential
benefits analysis. PageID 61-70.

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meets or equals all of the criteria of a listed impairment. Evans v. Sec’y of Health & Human
Servs., 820 F.2d 161, 164 (6th Cir. 1987).
Listing § 12.05 provides in relevant part:
12.05 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 the requirements of A, B, C, or D
are satisfied.
...
(C)

A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or mental impairment imposing an additional and significant
work-related limitation of function[.]

20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. In other words, for a claimant to meet
Listing § 12.05, he or she must meet the criteria under subsection A, B, C, or D, as well as
“satisfy the diagnostic description” in the introductory paragraph, i.e., “(1) subaverage
intellectual functioning; (2) onset before age twenty-two; and (3) adaptive-skills limitations.”
Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009) (internal citations omitted).
“The adaptive skills prong evaluates a claimant’s effectiveness in areas such as social
skills, communication skills, and daily-living skills.” Id. at 677 (internal citation omitted).
Although Listing § 12.05 does not define “adaptive functioning,” another portion of the Listings
defines “adaptive activities” as “cleaning, shopping, cooking, taking public transportation,
paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using
telephones and directories, and using a post office.” 20 C.F.R. Pt. 404, Subpt. P, App. 1
§ 12.00(C)(1). The plain language of the Listing does not identify how severe limitations must
be to qualify as “deficits in adaptive functioning.” Pendleton v. Comm’r of Soc. Sec., No. 1:10cv-650, 2011 WL 7070519, at *11 (S.D. Ohio Dec. 23, 2011). Nevertheless, case law from the

8

Sixth Circuit and other federal courts suggests that a claimant must have significant deficits to
satisfy the Listing.

See Farnsworth v. Comm’r of Soc. Sec., No. 2:13-cv-923, 2015 WL

1476458, at *9 (S.D. Ohio Mar. 31, 2015) (collecting cases).
Here, with regard to Listing § 12.05(C), the ALJ found that Plaintiff’s “cognitive deficits
[do not] establish ‘significantly subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested’ before age 22.” PageID 65. Substantial evidence
supports the ALJ’s Listing analysis. Although Plaintiff arguably satisfied the criteria under
subsection (C) -- with a Full Scale Intelligence Quotient (“IQ”) of 67, PageID 332, and mental
health impairments that the ALJ found to be “severe” at Step Two, PageID 61 -- the ALJ
reasonably concluded that Plaintiff did not meet the “deficits in adaptive functioning” prong in
the introductory paragraph of Listing § 12.05. PageID 65.
First, the ALJ specifically found that Plaintiff was not credible. PageID 67. The ALJ
discussed several issues which detract from Plaintiff’s credibility regarding his functional
abilities. See PageID 64. For example, the ALJ noted that, during a 2002 consultative exam,
Plaintiff denied being able to read, yet was able to independently fill out paperwork during the
interview. PageID 64, 338, 340. The ALJ also noted the discrepancy between Plaintiff’s
testimony -- that he does no chores -- with statements in the record to the contrary. PageID 67,
91, 315 (wherein Plaintiff reported that he did laundry, cleaned, prepared meals, read, performed
odd jobs, and went to the store), 338 (wherein Plaintiff stated that he took public transportation,
prepared meals, washed dishes, cleaned, and grocery-shopped). Notably, Plaintiff does not
challenge the ALJ’s credibility determination. See doc. 7; see also Robinson v. Comm’r of Soc.
Sec., No. 2:13-cv-530, 2014 WL 3419309, at *9 (S.D. Ohio July 10, 2014).

9

Second, consultative examiner Giovanni M. Bonds, Ph.D.’s November 2010 report is
substantial evidence supporting the ALJ’s conclusion.5

PageID 64, 311-17.

Dr. Bonds

diagnosed Plaintiff with Borderline Intellectual Functioning (“BIF”), as opposed to Mild Mental
Retardation; determined that Plaintiff “has sufficient information, judgment, and reasoning
abilities to be able to live independently, [and] make important decisions about his future[,]”; and
found Plaintiff at most “moderately”6 impaired with regard to work-related mental abilities.7
PageID 314, 316-17. Accordingly, although there is other evidence upon which the ALJ could
have relied to find that Plaintiff met or equaled Listing § 12.05(C) -- including consultative
examiner Mary Ann Jones Ph.D.’s 2011 report, PageID 328-35 -- substantial evidence supports
the ALJ’s ultimate conclusion at Step Three. See Peterson, 552 F. App’x at 539; see also
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (“[e]ven if there is substantial
evidence in the record that would have supported an opposite conclusion[,]” the Court must give
deference to the ALJ’s decision if it is supported by substantial evidence).
IV.
For the foregoing reasons, the Court finds no merit to Plaintiff’s two assignments of
error, and further finds the ALJ’s non-disability determination supported by substantial evidence.

In addition to Dr. Bonds’s report, opinions from record-reviewing psychologists Todd Finnerty,
Psy.D. and Karen Steiger, Ph.D. -- provided in July 2011 and February 2012, respectively -- also support
the ALJ’s Listing analysis. PageID 117-22, 131-36. Drs. Steiger and Finnerty both specifically opined
that Plaintiff does not meet Listing § 12.05. PageID 120, 134.
6
“Moderate” functional limitations are “non-disabling,” see Sims v. Comm'r of Soc. Sec., 406 F.
App’x 977, 980 (6th Cir. 2011), whereas “marked” and “extreme” limitations are suggestive of disability.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C), et seq.
7
The four work-related mental abilities include the ability to: relate to peers, supervisors, or the
public; understand, remember, and follow directions; maintain attention, concentration, persistence, and
pace to perform simple repetitive tasks; and withstand the stress and pressure associated with day to day
work activities. PageID 316-17.
5

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IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be found supported by substantial

evidence, and AFFIRMED; and
2.

This case be CLOSED on the Court’s docket.

Date: February 10, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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