Derringer, Jr. v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be reversed and this case be remanded to the Commissioner for payment of benefits; and this case be terminated on the docket of this Court. Objections to R&R due by 2/21/2017. Signed by Magistrate Judge Sharon L. Ovington on 2/6/2017. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICHARD L. DERRINGER,
Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-100
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Richard L. Derringer brings this case challenging the Social Security

Administration’s denial of his applications for a period of disability, Disability Insurance
Benefits, and Supplemental Security Income. He applied for benefits on November 16,
2012, asserting that he could no longer work a substantial paid job due to advanced right
hip osteoarthritis, moderate right sided foraminal acetabular degenerative changes,
disorder of the lumbosacral spine, degenerative joint disease with arthritis of the right
hip, chronic left AC joint sprain and strain, osteopenia, a depressive order not otherwise
specified (NOS), alcohol dependence, and borderline intellectual functioning.

1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Administrative Law Judge (ALJ) Emily Ruth Statum concluded that he was not eligible
for benefits because he is not under a “disability” as defined in the Social Security Act.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #14), Plaintiff’s Reply (Doc. #15),
the administrative record (Doc. #5), and the record as a whole.
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Statum’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since February 28, 2008. He

was thirty-nine years old at that time and was therefore considered a “younger person”
under Social Security Regulations. He has a high school education.
A.

Plaintiff’s Testimony

Plaintiff testified at a hearing before ALJ that he suffers from severe pain in his
hips, back, left knee, left collarbone, and ankle. Id. at 107. He uses a walker that he
borrowed from his sister. Id. at 108. He also borrows a cane sometimes. Id. at 109. He
started using the cane approximately one year before the hearing. Id. at 112. He is
waiting until Medicaid approves it to get his own. Id. at 109. He is able to walk without
assistance but has a bad limp. Id. He has been limping for four years and it has gotten
worse. Id. at 112. Plaintiff stated that he has difficulty walking on even/level surfaces,
and he has to walk at a very slow pace. Id. at 118. He needs a hip replacement but he
2

has to wait for insurance. Id. at 113. His hip causes him pain all the time. Id. at 115. On
a scale from one to ten, the lowest his pain ever goes is a seven and it is typically at a ten.
Id. He takes Vicodin for the pain but it does not help. Id.
Plaintiff also has difficulty with his left shoulder/collarbone. Id. at 109-10. He is
not able to reach above shoulder level. Id. at 110. Although he is a little stiff, he is able
to reach in front of him and to the side. Id. Plaintiff also has problems with his right hip.
Id. at 111. It is difficult for him to stand and sometimes, his hip gives out and he loses
his balance. Id.
Plaintiff testified that he also has emotional problems because of his pain, a lot of
stress, and anxiety. Id. at 107. Plaintiff sees a psychiatrist who prescribed Lexapro but it
does not help. Id. He is depressed a lot due to all his pain and suffering. Id. at 108.
When he is depressed, he tries to get over it, but usually, he just goes outside to smoke.
Id. at 116. In addition, he isolates himself from others and has crying spells “every other
blue moon.” Id. The combination of depression and pain limits his ability to focus on
things. Id. at 117. For example, he has to focus when taking a bath or tying his shoes.
Id. In school, he had ADD [attention deficit disorder] and took special education classes.
Id. at 108.
Plaintiff last worked in 2008 as a groundkeeper. Id. at 106. Before that, he did
landscaping work for a couple years. Id. Before landscaping, he installed gutters on and
off for over twenty years. Id.

3

Plaintiff lives with his mother. Id. at 105. He had a driver’s license but it was
suspended, and he did not get another one. Id. at 106. He does not drink alcohol. Id. at
111. During the day, he sometimes reads and looks at pictures in books. Id. He has
difficulty understanding and remembering when he reads because he has a very shortterm memory. Id. at 112. However, he cannot sit for very long without experiencing
severe and excruciating pain. Id. at 111. Once the pain starts, he usually tries to lie down
and watch TV. Id. He usually watches the Weather Channel. Id. at 112. He is most
comfortable when he is lying down but can only do so for two to three hours before he
has to stand up. Id. at 117. He can generally stand for twenty to thirty minutes before he
has to sit or lay down. Id. at 113-14. He can walk for fifty to one-hundred feet before he
has to stop. Id. at 114. He can only lift three pounds because his hips are so bad. Id.
When he lifts something, it causes too much strain and pressures on his hip. Id. at 115.
B.

Medical Opinions
i. Scott Shaw, M.D.

Dr. Shaw, Plaintiff’s primary-care physician, began treating him in October 2013.
Id. at 860. On April 2, 2014, he completed interrogatories regarding Plaintiff’s medical
impairments. Id. at 860-67. Dr. Shaw treated Plaintiff for hypertension, low back pain,
arthralgias, anxiety, and depression. Id. at 861. He opined that Plaintiff could not
perform the following activities on a regular, sustained basis, in a routine work setting:
be prompt and regular in attendance; withstand the pressure of meeting normal standards
of work productivity and work accuracy without significant risk of physical or
4

psychological decompensation or worsening of his impairments; demonstrate reliability;
complete a normal workday or workweek without interruption from psychologicallybased symptoms and perform at a consistent pace without unreasonable numbers and
length of rest periods. Id. at 861-62. Dr. Shaw explained that Plaintiff’s pain prevents
him from being reliable; his anxiety and depression limit performance of duties; and his
medical conditions prevent him from physically meeting demands of normal work. Id.
Dr. Shaw found that he can frequently lift/carry ten pounds; stand/walk for thirty
minutes without interruption for a total of one hour in an eight-hour workday; sit for
fifteen minutes without interruption for a total of one hour in an eight-hour workday. Id.
at 863-84. He indicated these limitations are caused by Plaintiff’s right hip problems. Id.
Additionally, because of Plaintiff’s pain and decreased range of motion in his right hip,
he can never balance, climb, crawl, crouch, kneel, or stoop. Id. at 864-65. His abilities to
reach and push/pull are also affected by his right hip disorder. Id. at 865.
Dr. Shaw estimated that Plaintiff’s impairments would cause him to be absent
from work more than three times per month. Id. at 867. He concluded that Plaintiff does
not have the residual functional ability to perform sedentary or light work on a sustained
basis. Id.
ii. Aivars Vitols, D.O.
Dr. Vitols examined Plaintiff on May 9, 2013. Id. at 762. Dr. Vitols noted that
Plaintiff presented with a severe antalgic gait, favoring his right lower extremity. Id. He
was not using an assistive device for ambulation. Id. at 763. Dr. Vitols indicated that he
5

had difficulty rising from a seated position, and with his back to Dr. Vitols, he was
someone unsteady. Id. at 764.
Upon examination, Dr. Vitols noted tenderness to palpation over Plaintiff’s left
AC joint and full range of motion in both shoulders. Id. He did not find evidence of
atrophy in his upper extremities. Id. Plaintiff was able to grasp, manipulate, pinch, and
grip with both hands. Id. He was also able to perform heel-to-toe standing with
difficulty. Id. When seated, Plaintiff had significant restricted painful motion of his right
hip with a relative strength at 4/5. Id.
Dr. Vitols diagnosed degenerative joint disease with arthritis in his right hip with
painful ankyloses; chronic left AC joint sprain and strain; and hypertension as per his
history. Id. at 765. He opined that Plaintiff’s “right hip ankyloses and arthritic changes
adversely affect his ability to stand and walk but for brief periods of time. [Plaintiff’s]
painful left AC joint impairs his ability to use his left arm in an upward raised position
for prolonged periods of time.” Id. He concluded that Plaintiff’s “overall capacity level
is estimated to be in the light capacity range.” Id.
iii. Stephen W. Halmi, Psy.D.
Dr. Halmi evaluated Plaintiff on May 17, 2013. Id. at 771-780. He noted that
Plaintiff walked with a noticeable limp and sat with a tense posture at the edge of his seat.
Id. at 775. His affect was flat, and he reported symptoms associated with depression. Id.
at 776. Plaintiff maintained adequate attention and concentration throughout the
evaluation, scored in the average range on a calculation task, and scored in the low
6

average range on a short-term memory task. Id. at 776-77. His recent long-term memory
and remote memory were adequate, and his remote memory for the recall of personal
dates and events was fair. Id. at 777. He scored in the moderately impaired range on an
abstract reasoning task and mildly impaired on a judgment reasoning task. Id. Based on
previous testing, Dr. Halmi opined that his intellectual abilities rank in the borderline
range. Id.
Dr. Halmi diagnosed depressive disorder not otherwise specified (NOS), alcohol
dependence, and borderline intellectual functioning. Id. at 777. He assigned a symptom
global assessment of functioning (GAF) score of 65, function GAF score of 70; and
overall GAF score of 65. Id. at 778. Dr. Halmi opined that Plaintiff “may benefit from
an antidepressant, but his depression is likely to remain as long as he is abusing alcohol
and has no income, as well as chronic pain.” Id. Further, his prognosis is guarded. Id.
Dr. Halmi found, “He is at least capable of learning and performing a low skill
level task if motivated.” Id. at 779. He has limited verbal abilities, and “he would have
difficulty learning and performing a multiple step task primary because of limited
cognitive abilities due to congenital reasons.” Id. He is able to maintain adequate
attention, concentration, perseverance, and pace to perform a simple, repetitive, low skill
level task. Id. Dr. Halmi does not have evidence that Plaintiff has significant problems
getting along with others based on their interaction. Id. at 780. However, based on
Plaintiff’s self-report, Dr. Halmi opined, “he may have intermittent problems getting
along with coworkers . . . .” Id. Additionally, he “would likely have problems getting
7

along with difficult people because of irritability and limited communication skills. He
would likely respond to constructive criticism with defensiveness . . . .” Id. If the task is
simple and repetitive, Plaintiff “can meet deadlines from a psychological standpoint . . .
[and] he could solve the type of novel problems you would find in a low skill level task
without significant difficulty.” Id.
iv. State Agency Record-Reviewing Physicians & Psychologists
Walter Holbrook, M.D., reviewed Plaintiff’s records on May 17, 2011 and found
that he had two non-severe impairments: other disorders of the gastrointestinal system
and alcohol, substance addiction disorders. Id. at 132-36. Dr. Holbrook concluded that
he was not disabled. Id. at 135.
On May 20, 2012, Mel Zwissler, Ph.D., reviewed Plaintiff’s records and found
that he had two severe impairments: osteoarthrosis and allied disorders and other and
unspecified arthropathies. Id. at 144-52. On May 15, 2012, James Caccillo, D.O.,
reviewed his records and opined Plaintiff could lift and/or carry twenty pounds
occasionally and ten pounds frequently; stand and/or walk for six hours in an eight-hour
workday; and sit for six hours in an eight-hour workday. Id. at 149. His ability to push
and/or pull is limited in his left upper extremity and his ability to reach left overhead is
limited. Id. at 149-50. He can occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl, and he can never climb ladders, ropes, or scaffolds. Id. at 150. He
should avoid concentrated exposure to extreme cold and heat and hazards such as

8

machinery and heights. Id. at 151. Dr. Caccillo concluded Plaintiff was not disabled. Id.
at 152.
Karla Voyten, Ph.D., reviewed Plaintiff’s records on May 29, 2013 and found that
he had four severe impairments: osteoarthrosis and allied disorders, affective disorders,
borderline intellectual functioning, and alcohol, substance addiction disorders. Id. at 164180. Dr. Voyten opined that under the ‘B’ criteria of the listings, Plaintiff has a mild
restriction of activities of daily living and difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence, or pace; and no episodes
of decompensation. Id. at 171.
Further, Dr. Voyten opined Plaintiff was markedly limited in his ability to
understand and remember complex instructions and carry out detailed instructions. Id. at
175-76. He is moderately limited in his ability to maintain attention and concentration
for extended periods; perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; work in coordination with or in proximity
to others without being distracted by them; make simple work-related decisions;
complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods; interact with the general public; accept instructions and respond
appropriately to criticism from supervisors; maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; and respond appropriately to
changes in the work setting. Id. at 176-77.
9

Robert Wysokinski, M.D., reviewed his records on May 22, 2013. Id. at 164-80.
He agreed with Dr. Caccillo’s findings with a few notable exceptions. Id. Dr.
Wysokinski opined Plaintiff could only stand and/or walk for two hours in an eight-hour
workday and his ability to push and/or pull is limited in his right lower extremity. Id. at
173. He can never crawl; he does not have reaching limitations; he does not have
limitations with extreme cold and heat; and he should avoid all exposure to hazards. Id.
at 174-75. Dr. Wysokinski concluded that Plaintiff is not disabled. Id. at 179.
On July 18, 2013, Leslie Rudy, Ph.D., reviewed Plaintiff’s records and found the
same impairments as Dr. Voyten. Id. at 200-16. She also agreed with Dr. Voyten’s
findings under the ‘B’ criteria except that Dr. Rudy found Plaintiff has moderate
difficulties in maintaining social functioning. Id. at 208. Dr. Rudy affirmed Dr.
Voyten’s mental residual functional capacity assessment. Id. at 212-13
On July 9, 2013, Anahi Ortiz, M.D., reviewed Plaintiff’s records and reached the
same conclusions as Dr. Wysokinski. Id. at 200-16.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security
Act—has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
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performing a significant paid job—i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
11

follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Statum to evaluate the evidence connected to

Plaintiff’s application for benefits. She did so by considering each of the five sequential
steps set forth in the Social Security regulations. See 20 C.F.R. §§ 404.1520, 416.920.2
She reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
February 28, 2008.

Step 2:

He has the severe impairments of advanced right hip osteoarthritis,
moderate right sided foraminal acetabular degenerative changes,
disorder of the lumbosacral spine, degenerative joint disease with
arthritis of the right hip, chronic left AC joint sprain and strain,
osteopenia, a depressive order not otherwise specified (NOS), alcohol
dependence, and borderline intellectual functioning.

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity, or the most he could do in a work
setting despite his impairments, see Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 239 (6th Cir. 2002), consists of sedentary work. “This
individual could lift and/or carry 10 pounds occasionally, sit about 6
hours in an 8 hour workday, stand or walk about 2 hours in an 8 hour
workday on even terrain but no more than 20 to 30 minutes at a time,
with occasional pushing or pulling on the left with an ability for

2

The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.

12

occasional overhead reaching on the left (which is his dominant
extremity), occasional climbing of ramps or stairs, occasional
stooping, kneeling, or crouching, no crawling, no climbing of ladders,
ropes or scaffolds, avoiding all exposure to hazards such as machinery
or heights, with no commercial driving, with an ability for unskilled
work that requires understanding and remembering 1 to 2 step tasks
with occasional contact with coworkers, supervisors and the public.”
Step 4:

He is unable to perform any of his past relevant work.

Step 5:

He could perform a significant number of jobs that exist in the
national economy.

(Doc. #5, PageID #s 71-92). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 92.
V.

Discussion
Plaintiff contends that the ALJ erred in finding that Plaintiff’s impairment did not

meet or equal Listing 12.05C and/or Listing 1.02. He also argues that the ALJ erred in
weighing the treating source’s opinion and in finding that he was not credible. The
Commissioner maintains that substantial evidence supports the ALJ’s finding that
Plaintiff’s impairments did not meet or medically equal a listing, her evaluation of
medical opinions, and her assessment of Plaintiff’s credibility.
A.

Listing 12.05C

ALJ Statum found that Plaintiff’s borderline intellectual functioning does not meet
the requirements of Listing 12.05. (Doc. #5, PageID #80). Plaintiff contends that his
impairments met, or at the very least equaled, Listing 12.05C. (Doc. #7, PageID #967).

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To meet the listing for intellectual disability, an individual’s impairment must
satisfy the diagnostic description in the introductory paragraph and any of the four sets of
criteria. 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00A. Listing 12.05C provides:
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 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 an
additional and significant work-related limitation of
function[.]
20 C.F.R. § 404, Subpt. P, App. 1, § 12.05C. Thus, a plaintiff seeking to establish an
intellectual disability under Listing 12.05C must prove three elements: (1) an IQ score
between 60 and 70; (2) a second impairment causing work-related limitations; and (3)
subaverage general intellectual functioning with deficits in adaptive functioning that
began before age 22. Id.
In the present case, the ALJ’s discussion of Listing 12.05 was brief:
[Plaintiff’s] borderline intellectual functioning does not meet
the requirements of listing 12.05 as [Plaintiff] received a Full
Scale score of 71 and Listing 12.05 requires a valid verbal,
performance, or full scale I.Q. score of 60 through 70. In
addition, the record does not reveal deficits in adaptive
functioning initially manifested during the developmental
period, as [Plaintiff] can read and write and worked for many
years.

14

Despite his borderline intellectual functioning, [Plaintiff]
reported to Dr. Halmi that he travels by bus or gets rides from
friends and that he can read, write, calculate basic math, tell
time and use the telephone.
(Doc. #5, PageID #80).
IQ Score
The ALJ is correct that Plaintiff received a full scale IQ of 71 on the Wechsler
Intelligence Scale for Children-Revised. Id. at 509. However, the ALJ overlooked or
ignored Plaintiff’s Verbal IQ score of 69 on the same test. Id. “In cases where more than
one IQ is customarily derived from the test administered, e.g., where verbal,
performance, and full scale IQs are provided in the Wechsler series, we use the lowest of
these in conjunction with 12.05.” 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.00(D)(6)(c).
Plaintiff’s verbal I.Q. score clearly falls into the range required by the listing. Defendant
does not contest this element: “The Commissioner acknowledges that Plaintiff received a
verbal IQ score of 69 when he was thirteen years old and therefore, had a listing level IQ
score.” (Doc. #14, PageID #992).
Additional Impairments
Plaintiff has also shown that he has other impairments that impose an additional
and significant work-related limitation of function. The ALJ’s decision itself
acknowledges the existence of such limitations. The ALJ found that in addition to
Plaintiff's borderline intellectual functioning, his severe impairments included advanced
right hip osteoarthritis, moderate right sided foraminal acetabular degenerative changes,
disorder of the lumbosacral spine, degenerative joint disease with arthritis of the right
15

hip, chronic left AC joint sprain and strain, osteopenia, a depressive order not otherwise
specified (NOS), and alcohol dependence. (Doc. #5, PageID #74).
The ALJ’s findings demonstrate that Plaintiff satisfies Listing 12.05C’s
requirement of an “additional and significant work-related limitation of function.” The
Regulations explain, “For paragraph [12.05]C, we will assess the degree of functional
limitation the additional impairment(s) imposes to determine if it significantly limits your
physical or mental ability to do basic work activities, i.e., is a ‘severe’ impairment(s), as
defined in §§ 404.1520(c) and 416.920(c).” 20 C.F.R. § 404, Subpt. P, App. 1, §
12.00(A). Consequently, the ALJ’s determination at Step 2 that Plaintiff had several
“severe” impairments under § 404.1520(c) effectively determined that these impairments
imposed “additional and significant work-related limitation of function” in satisfaction of
Listing 12.05C.
Adaptive Functioning
The introductory paragraph of Listing 12.05 requires that the individual show
“significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period.” 20 C.F.R. § 404,
Subpt. P, App. 1, § 12.05. “Adaptive functioning refers to how effectively individuals
cope with common life demands and how well they meet the standards of personal
independence expected of someone in their particular age group, sociocultural
background, and community setting.” Diagnostic and Statistical Manual of Mental
Disorders, 4th ed., Text Revision, at p. 42. Additionally, “The American Psychiatric
16

Association defines adaptive-skills limitations as ‘concurrent deficits or impairments . . .
in at least two of the following areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.’” Hayes v. Comm’r of Soc. Sec., 357 F.
App’x 672, 677 (6th Cir. 2009) (quoting DSM-IV-TR at 49).
The record contains significant evidence of Plaintiff’s deficits in adaptive
functioning. His school records, although somewhat limited, detail his difficulties with
both academics and social skills. When Plaintiff was in seventh grade, he had difficulty
passing his reading, math, and science classes. (Doc. #5, PageID #509). After an
evaluation by a school psychologist, he was placed in developmentally handicapped
classes for each. Id. The psychologist also administered several different tests, including
the Vineyard Social Maturity Scale, the result of which placed Plaintiff’s age equivalency
at 11.5 years old. Id. at 510.
Plaintiff was re-evaluated when he was seventeen years old. Id. at 522. The
Woodcock-Johnson Psycho-Educational Battery showed Plaintiff lagging far behind: his
reading grade equivalent was 4.9, math grade equivalent was 6.0, and written language
grade equivalent was 5.5. Id. On the Vineyard Social Maturity Scale, his social age
score was 9.7 years. Id. at 523. The psychologist found that Plaintiff’s levels of
intellectual and adaptive functioning were within the developmentally handicapped
range. Id. at 524. She noted that he worked slowly, and his assignments would need to
be shortened and simplified or he would need additional time to complete them. Id. She
17

recommended that his teacher determine which concepts were essential, and then limit
his education to those alone. Id. Additionally, he would “need extra explanations of
concepts for adequate comprehension and retention.” Id.
In April 1986, his individualized education plan (IEP) indicated that he was “weak
in socialization, communication, [and] daily living skills.” Id. at 527. In April 1987, his
IEP revealed that he was reading at an eighth-grade level and doing math at sixth-grade
level. Id. at 516.
Dr. Halmi, the evaluating psychologist, noted that Plaintiff repeated first grade
because of poor academic performance, he earned failing to average grades, and he had
occasional problems getting along with classmates and teachers. Id. at 773.
Additionally, Plaintiff reported that he was enrolled in the twelfth grade but did not
graduate. Id. at 774.
Defendant asserts that Plaintiff’s work history spanned more than twenty years
and included semi-skilled jobs. (Doc. #14, PageID #993). Further, Defendant contends
that he “engaged in activities that were inconsistent with his claims that he had an
intellectual disability.” Id. For example, Plaintiff takes care of his personal needs, does
light chores, had a driver’s license (before it was suspended), uses public transportation,
and socializes with friends and family. Id.
These activities, however, are not inconsistent with an intellectual disability. In
Brown v. Sec’y of Health & Human Servs., the plaintiff was able to use public
transportation, make change at the grocery, do his own laundry, and clean his room. 948
18

F.2d 268, 270 (6th Cir. 1991). Additionally, he had a driver’s license, and when he was
employed as a truck driver, he was able to record mileage, the hours he worked, and the
places he drove. Id. The Sixth Circuit found that these activities were not inconsistent
with a valid I.Q. of 68 . . . .” Id. The Court noted that individuals with mild mental
retardation3, “[b]y their late teens . . . 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 (unless there is an associated disorder that makes
this impossible). Id. (emphasis in original) (citing DSM-III-R § 317.00).
The evidence in the record shows that Plaintiff’s adaptive abilities/deficiencies are
similar to those in Brown. Plaintiff’s psychological evaluations and therapists’ treatment
notes document some of these deficiencies. For example, Plaintiff told his therapist,
Elizabeth A. Roode, MS, PC-CR, CDCA, “[h]e has been ‘floating’ around between
homes since his wife passed [in] 2002, and admits even they floated around homes
sometimes living with family and sometimes having their own place.” (Doc. #5, PageID
#894). In October 2014, he reported staying in garages, his girlfriend’s car, and various
family member’s homes. Id. at 943.

3

Intellectual disability under Listing 12.05 was previously referred to as mental retardation.

19

Although Plaintiff had some success with employment, he has also experienced
some trouble. Dr. Halmi noted that he worked as a groundkeeper but was transferred
because he was “incompetent.” Id. at 774. Further, he was fired from a job at a grocery
store because he took food off the shelves and ate it. Id. He had some problems with his
coworkers, and he was in a physical fight at work once. Id. at 775.
The record also illustrates Plaintiff’s memory and understanding limitations.
Plaintiff testified that he has problems remembering what he reads and that he has a very
short-term memory. Id. at 112. He also testified that he has a hard time focusing on
taking a bath or tying his shoes. Id. at 117. Dr. Halmi noted that it took Plaintiff three
times to successfully repeat four of four objects immediately after presentation, and when
asked to identify those four objects five minutes later, he recalled three without assistance
but could not recall the fourth object despite the assistance of a category prompt and
multiple choice list. Id. at 776-77. He was able to recall what he ate for dinner the day
before and what he last watched on television, but he could not identify a contemporary
news item. Id. at 777.
Dr. Voyten and Dr. Rudy, the State agency record-reviewing physicians, opined
that he was markedly limited in his abilities to understand and remember detailed
instructions and to carry out detailed instructions. Id. at 175-76, 212. They also found
that he was moderately limited in many areas, including his abilities to maintain attention
and concentration for extended periods, make simple work-related decisions, interact

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with the general public, and respond appropriately to changes in the work setting. Id. at
176-77, 212-13.
Together, this evidence shows Plaintiff’s significant deficits in adaptive
functioning as Listing 12.05C requires.
For the above reasons, Plaintiff’s Statement of Errors is well taken.4
B.

Judicial Award of Benefits

Remand is warranted when the ALJ=s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration=s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand for an ALJ=s failure to follow the regulations
might arise, for example, when the ALJ failed to provide Agood reasons@ for rejecting a
treating medical source's opinions, see Wilson, 378 F.3d at 545-47; failed to consider
certain evidence, such as a treating source’s opinions, see Bowen, 478 F.3d at 747-50;
failed to consider the combined effect of the plaintiff's impairments, see Gentry, 741 F.3d
at 725-26; or failed to provide specific reasons supported by substantial evidence for
finding the plaintiff=s credibility lacking, Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
4

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s other challenges to the ALJ’s decision is unwarranted.

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of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994). The latter is warranted “only where the evidence of disability is
overwhelming or where the evidence of disability is strong while contrary evidence is
lacking.” Felisky, 35 F.3d at 1041 (quoting Faucher v. Sec’y of Health & Human Servs.,
17 F.3d 171, 176 (6th Cir. 1994).
In the present case, the evidence of record establishes that a remand for award of
benefits is warranted because the record contains overwhelming evidence, or strong
evidence while contrary evidence is lacking, that Plaintiff met the criteria of Listing
12.05C. But, the question of when his benefits begin remains. Plaintiff previously
applied for Disability Insurance Benefits on March 23, 2012. His application was
ultimately denied upon reconsideration on May 29, 2012, he did not appeal, and the
record does not reveal any new or material evidence. As a result, the Social Security
Administration’s determination of May 29, 2012 is a final determination that Plaintiff
was not eligible for Disability Insurance Benefits from February 28, 2008 through May
29, 2012. (Doc. #5, PageID #71). Therefore, Plaintiff became eligible for Disability
Insurance Benefits on May 30, 2012, and became eligible for Supplemental Security
Income on the day he filed his application, November 16, 2012.

IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be reversed and this case
be remanded to the Commissioner under sentence four of 42 U.S.C.
' 405(g) for payment of benefits; and
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2.

The case be terminated on the docket of this Court.

Date: February 6, 2017

s/Sharon L. Ovington
Sharon L. Ovington
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 Recommendations. Such objections shall specify the
portions of the Report 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.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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