Barrett v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be reversed and this case be remanded to the Commissioner for payment of benefits; and the case be terminated on the docket of this Court. Objections to R&R due by 6/26/2017. Signed by Magistrate Judge Sharon L. Ovington on 6/12/2017. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LARRY BARRETT,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-112
:
: District Judge Walter H. Rice
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Larry Barrett brings this case challenging the Social Security

Administration’s denial of his applications for period of disability, Disability Insurance
Benefits, and Supplemental Security Income. He applied for benefits on August 25,
2010, asserting that he could no longer work a substantial paid job. Administrative Law
Judge (ALJ) David A. Redmond concluded that he was not eligible for benefits because
he is not under a “disability” as defined in the Social Security Act.
The Appeals Council denied Plaintiff’s request for review, and he filed a previous
action in United States District Court for the Southern District of Ohio. See Barrett v.
Commissioner of Social Security, 3:14-cv-102, 2015 WL 1187290 (S.D. Ohio June 24,

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

2015) (D.J. Rose). The Court vacated the Commissioner’s decision and remanded the
case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative
proceedings. Id. at *1. Upon remand, ALJ Mark Hockensmith issued a decision finding
that Plaintiff is not under a “disability” and thus, not eligible for benefits.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the
Commissioner’s Memorandum in Opposition (Doc. #11), Plaintiff’s Reply (Doc. #12),
the administrative record (Doc. #s 6-7), 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 Hockensmith’s
non-disability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since November 1, 2007. He

was thirty-seven years old at that time and was therefore considered a “younger person”
under Social Security Regulations. 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a
limited education. 20 C.F.R. §§ 404.1564(b)(3), 416.964(b)(3).
Plaintiff testified at the hearing before ALJ Hockensmith that he had pneumonia
and had to have lung surgery in 2008. (Doc. #7, PageID #661). He believes he only has
half of his lung. Id. at 662. He is frequently out of breath and has chest pain. Id. He has
regularly seen doctors at the Cassano Clinic since his lung surgery. Id. at 658.
Plaintiff has diabetes and has problems with his legs and feet. His feet and shins
go numb, cramp badly, and ache. Id. at 659. If he sits for too long, his legs bother him
and he is in pain. Id. Usually, he gets up and walks around at home if they start hurting
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too much. Id. He and Charlene, his girlfriend, sometimes go on one to two minute
walks. Id. at 661. He cannot walk very far because his legs give out and he falls. Id. at
666. He has broken his ankle from falling. Id.
Plaintiff has a lot of pain in his back. Id. at 662. When he is in bed, he cannot lie
in just one spot for too long. Id. at 663. Sitting also causes back pain. Id. His hands
also cramp up. Id. at 664. He takes medication, but it makes him feel itchy and drowsy.
Id. at 665.
Plaintiff struggles with anxiety and depression. Id. at 664. He sometimes gets
scared and cries. Id. He is worried because, “I can’t work …. I have nothing.” Id.
Plaintiff dropped out of high school in tenth grade. Id. at 648. Throughout school,
he was in special education classes. Id. When he was around twenty-four years old, he
tried to take the GED test but “couldn’t even read it ….” Id. He did not attend any
classes prior to taking the test. Id.
Plaintiff obtained a State Tested Nurse Aide (STNA) license. Id. He first took a
forty-hour class and then had to take a test. Id. at 649-50. When he was unable to read
the test, they tried reading him the questions, but he still could not pass. Id. at 650. They
then sent the test home with him, and he still did not pass. Id. Despite failing the test,
Plaintiff testified that they still gave him a license. Id. at 650-51. He then worked as an
STNA in an Alzheimer’s unit where he had to feed patients, give them baths, put their
clothes on, etc. Id. at 653. He explained that the entire job was physical and required a
lot of lifting. Id. His last job was in 2007 at a concrete company. Id. at 654. He said
that he never “did concrete” but may have cleaned up the yard. Id.
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Plaintiff lives in a trailer with Charlene. Id. at 645. She helps him with almost
everything, including going to the grocery for him. Id. at 646, 663. His brother pays his
rent. Id. at 645. Plaintiff does not have a driver’s license. Id. at 647. During the day, he
eats, watches TV, and uses the bathroom. Id. at 663. He does not shower every day
because it is difficult for him to get in and out of the shower. Id. He is not able to do
much around the house. Id. He is able to warm food in the microwave but cannot cook.
Id. When he needs to go somewhere, his brother or Charlene usually takes him. Id. at
647.
Plaintiff had difficulty reading and understanding applications and his mail. Id. at
655. He can write his name and address and then his brother usually completes the
application. Id. He has trouble writing and spelling as well. Id. at 656. When he used to
work, his brothers managed his money. Id. at 667
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
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.

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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
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

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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 Hockensmith to evaluate the evidence

connected to Plaintiff’s application for benefits. He 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 He reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
November 1, 2007.

Step 2:

He has the severe impairments of degenerative disc disease of the
lumbar spine, residuals of thoracotomy for empyema, diabetes
mellitus, anxiety, 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 despite his
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “light work … except: (1) sit for 6 hours,
with the ability to stand for a minute or two every hour while
remaining at the workstation; (2) no climbing of ladders, ropes, or
scaffolds; (3) frequent use of ramps or stairs; (4) occasional balancing,
stooping, kneeling, crouching, and crawling; (5) no use of foot
controls; (6) occasional pushing and pulling with the lower
extremities; (7) must avoid concentrated exposure to fumes, dusts,
gases, odors and poorly ventilated areas; (8) is limited to simple,
routine tasks; (9) in a static work environment with few changes in
routine; (10) no fast paced work or strict production quotas; (11) is
limited to making simple, work-related decisions; and (12) no jobs
requiring more than a 6th grade reading or math level.”

2

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

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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. #7, PageID #s 617-28). These main findings led the ALJ to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 628.
V.

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

meet or equal Listing 12.05C. He also argues that the ALJ erred in weighing the opinion
of the State agency record-reviewing doctor. The Commissioner maintains that
substantial evidence supports the ALJ’s finding that Plaintiff’s impairments did not meet
or medically equal a listing and his evaluation of medical opinions.
A.

Listing 12.05C

ALJ Hockensmith found that Plaintiff’s borderline intellectual functioning does
not meet the requirements of Listing 12.05C. (Doc. #7, PageID #s 619-20). 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.
. . .
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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 12.05C was brief:
[Plaintiff] does not have a valid verbal, performance, or full
scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant workrelated limitation of function. While [Plaintiff] has had IQ
scores in this range, these scores conflict with other higher
scores of record. Regardless, [Plaintiff] still does not have
marked, extreme, or even moderate limitations in his adaptive
functioning. This is supported by the fact that, despite what
his school records may indicate, [Plaintiff] currently does not
have significant limitations in his ability to communicate,
socialize, obey laws, care for his own personal needs, be
aware of normal hazards and take appropriate precautions,
travel to unfamiliar places or use public transportation, or set
realistic goals or make plans independently of others. (Ex.
15F/2).
(Doc. #7, PageID #s 621-22). Oddly, the ALJ again discusses Listing 12.05 at Step 4.
He notes that Plaintiff “has mild limitations in his activities of daily living/adaptive
functioning. This is evident by his reported daily activities as well as his ability to get his
STNA license and perform the semi-skilled work for years.”

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IQ Score
ALJ Hockensmith found that Plaintiff does not have a valid verbal, performance,
or full scale IQ of 60 through 70: “While [Plaintiff] has had IQ scores in this range, these
scores conflict with other higher score of record.” (Doc. #7, PageID #621). The ALJ
later adds, “IQ scores prior to the age of 22 were above listing level.” Id. at 624 (citing
Exhibit 1F/22). The ALJ provided two reasons for finding that Plaintiff did not have a
valid, qualifying IQ. First, Plaintiff’s more recent scores are inconsistent with the scores
from 1986. Id. at 621-22. Second, Plaintiff’s 2008 and 2010 IQ scores are “not reflective
of his ability to perform semi-skilled work.” Id. at 625.
Plaintiff correctly points out—and the Commissioner acknowledges—that the ALJ
“improperly conflated the requirements of the introductory paragraph for Listing 12.05”
by requiring Plaintiff to have qualifying IQ scores before the age of twenty two. (Doc.
#8, PageID #1052); (Doc. #11, PageID 1074) (citations omitted). However, the
Commissioner asserts that this error was harmless because “the ALJ would have reached
the same outcome because he did not find that Plaintiff had valid, qualifying IQ scores to
satisfy Listing 12.05.” (Doc. #11, PageID #s 1074-75).
The record contains the results of three different intelligence tests. In May 1986,
on the Wechsler Intelligence Scale for Children – Revised (WISC-R), Plaintiff received a
full scale IQ of 75, verbal IQ of 73, and performance IQ of 81. (Doc. #6, PageID #320.
In August 2008, Dr. Bonds administered the Wechsler Adult Intelligence Scale – Third
Edition (WAIS-III), and Plaintiff obtained a full scale IQ of 66, verbal IQ of 67, and
performance IQ of 70. Id. at 391. Two years later, Dr. Payne then administered the
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Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV), and Plaintiff received a
full scale IQ of 67. Id. at 497.
Substantial evidence does not support the ALJ’s reasons for finding the results of
two more recent IQ tests invalid. The fact that the results of all three tests are not exactly
the same does not mean the results are invalid and does not reasonably support the ALJ’s
decision to give more credit to scores from one test in 1986 than to scores from two tests
in 2008 and 2010. Further, the ALJ does not acknowledge that Dr. Bonds noted the
differences between the WISC-R and WAIS-III and opined, “This may be due to the
difference in tests administered.” Id. at 387. He further noted that Plaintiff’s scores are
consistent with his reported learning problems and special education classes in school.
Id. at 388. And, with great confidence, Dr. Bonds predicted, “Chances are 95 out of 100
that upon subsequent administrations of this test, [Plaintiff] would validly obtain a Full
Scale IQ between 63 and 71.” Id. at 387. Additionally, an individual’s ability to perform
semi-skilled work is not inconsistent with a full scale IQ of 66-67. See Brown v. Sec’y of
Health and Human Serv., 948 F.2d 268, 270 (6th Cir. 1991) (“[A]s a truck driver, Mr.
Brown recorded mileage, the hours he worked, and the places he drove. We do not deem
these facts to be inconsistent with a valid test I.Q. of 68 ….”). This is certainly true in
Plaintiff’s case given the physical work he performed as an STNA.
The Regulations require a plaintiff to show “a valid verbal, performance, or full
scale IQ of 60 through 70 ….” 20 C.F.R. § 404, Subpt. P, App. 1, § 12.05C. And, “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
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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 lowest verbal IQ of 66 and full scale IQ 66-67 clearly falls
into the range required by the listing.
Additional Impairments
Plaintiff has also shown that he has other impairments that impose an additional
and significant work-related limitation of function. The ALJ found that in addition to
Plaintiff's borderline intellectual functioning, his severe impairments included
degenerative disc disease of the lumbar spine, residuals of thoracotomy for empyema,
diabetes mellitus, and anxiety. (Doc. #7, PageID #619).
These 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
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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
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).
ALJ Hockensmith concluded,
[Plaintiff] still does not have marked, extreme, or even
moderate limitations in his adaptive functioning. This is
supported by the fact that, despite what his school records
may indicate, [Plaintiff] currently does not have significant
limitations in his ability to communicate, socialize, obey
laws, care for his own personal needs, be aware of normal
hazards and take appropriate precautions, travel to unfamiliar
places or use public transportation, or set realistic goals or
make plans independently of others.
(Doc. #7, PageID #622) (citing Ex. 15F/2).
The record contains significant evidence of Plaintiff’s deficits in adaptive
functioning. His school records detail his difficulties with both academics and social
skills. When Plaintiff was in ninth grade, a school psychologist, Jacqueline Spaulding,
administered several different tests, including the WISC-R discussed above and the
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Vineyard Social Maturity Scale, a test that measures adaptive behavior. (Doc. #6,
PageID #s 320-21). The results of the Vineyard Social Maturity Scale indicated that
Plaintiff had low daily living skills (personal, domestic, and community) and low
socialization skills (interpersonal relationships, play and leisure time, and coping). Id. at
321. Further, at the time of the exam, Plaintiff was 16 years and 4 months old, but his
mental age was 12 years and 3 months old. Id.
In June 1986, an evaluation team consisting of Dr. Spaulding, one of Plaintiff’s
teachers, and a counselor reported that he had a below average ability to learn and was
below in both grade level and achievement. Id. at 318. Additionally, “VERY slow with
paper/pencil tasks. Makes excuses for quality of work. Can be very argumentative.
Highly distractible. Forgets what appeared to have been learned (long term memory
deficit).” Id. In 1987, as part of Plaintiff’s individualized education plan, the team noted
that he “is not adjusting to any situation in school. He is disruptive.” Id. at 323. Further,
he liked to argue and constantly talked about fighting. Id. “He has inappropriate
behavior with adults and members of the opposite sex.” Id.
Plaintiff’s deficits in adaptive functioning continued into adulthood. In 2008, Dr.
Bonds noted that Plaintiff’s girlfriend completed his background history form because he
could not read well enough to complete it himself. Id. at 383. He opined that Plaintiff
“does not have much insight or understanding of his problems. Judgment and reasoning
abilities are far below average. He does not seem to be able to make important decisions
without some assistance or supervision.” Id. at 386. Further, Dr. Bonds found that

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Plaintiff’s ability to understand, remember, and follow directions is moderately limited.
Id. at 389.
In 2010, Dr. Payne opined that Plaintiff’s “insight may be somewhat limited by his
cognitive level. Judgment capabilities appear to be in the borderline range.” Id. at 493.
He also noted Plaintiff scored in the below average range for visual-spatial abilities,
short-term auditory memory, and speed of performance combined with visual memory.
Id. at 494. He scored in the borderline range for math reasoning, symbol search, and
visual puzzles, and he scored in the impaired range for abstract reasoning, vocabulary
development, general knowledge, and matrix reasoning. Id. Because of Plaintiff’s
anxiety disorder, if the stress level at his work was moderately high, then he would be
moderately impaired. Id. at 495.
Dr. Semmelman, a record-reviewing State agency psychologist, opined Plaintiff
was moderately impaired in his abilities to understand, remember, and carry out detailed
instructions; maintain attention and concentration for extended periods; 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 appropriately with the general public; and respond
appropriately to changes in the work setting. Id. at 100-01. She also found that he had
moderate difficulties in maintaining social functioning and moderate difficulties in
maintaining concentration, persistence, and pace. Id. at 97.
Notably, the ALJ implicitly acknowledged adaptive deficits in Plaintiff’s academic
skills: “given his school records and IQ testing, limitations have been added to the
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residual functional capacity to account for limitations in reading and math.” (Doc. #7,
PageID #625). Specifically, the ALJ limits Plaintiff to jobs that do not require more than
a sixth grade reading or math level. Id. at 622. Further, the ALJ limits Plaintiff to simple
and routine tasks in a static work environment with few changes in routine and no fastpaced work or strict production quotas. Id. He also limits him to making simple, workrelated decisions. Id.
However, the ALJ also found that Plaintiff only has mild limitations in his
activities of daily living/adaptive functioning as evidenced by his ability to obtain an
STNA license and then perform semi-skilled work. But, these activities are not
inconsistent with a finding of intellectual disability. In Brown v. Sec’y of Health &
Human Servs., the plaintiff 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 selfsupport, 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

3

On August 1, 2013, the Social Security Administration amended Listing 12.05 by replacing the words
“mental retardation” with “intellectual disability.” See 78 F. Reg. 46,499, 46,501 (to be codified at 20
C.F.R. § 404, subpt. P, app. 1). The Administration stated that the change “does not affect the actual
medical definition of the disorder or available programs or services.” Id. at 46,500. Thus, the amendment
does not effect a substantive change, and the words “mental retardation” and “intellectual disability” have
the same meaning and are sometimes used interchangeably.

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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).
Plaintiff—whether one believes his account of obtaining his STNA license and
working, or not—was, similarly to the plaintiff in Brown, able to obtain his license and
perform semi-skilled work for several years. Despite this, the record establishes
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 “good 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.

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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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
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.
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

2.

The case be terminated on the docket of this Court.

Date: June 12, 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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