Ramey v. Social Security Administration, Commissioner of

Filing 12

REPORT AND RECOMMENDATIONS re 10 MOTION for Summary Judgment filed by Social Security Administration, Commissioner of, 8 MOTION for Summary Judgment filed by Dennis Ramey Signed by Magistrate Judge Susan K Lee on 2/22/11. (GRE, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DENNIS RAMEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 2:10-CV-120
Collier / Lee

REPORT AND RECOMMENDATION
This action was brought by Plaintiff Dennis Ramey pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying Plaintiff supplemental security income (“SSI”) benefits.
Plaintiff and Defendant have filed cross motions for summary judgment [Doc. 8, Doc. 10]. Plaintiff
seeks the award of benefits, or in the alternative, a remand to the Commissioner.
For the reasons stated below, I RECOMMEND: (1) Plaintiff’s motion for summary
judgment [Doc. 8] be GRANTED; (2) Defendant’s motion for summary judgment [Doc. 10] be
DENIED; (3) the decision of Commissioner be REVERSED; and (4) this action be REMANDED.
I.

ADMINISTRATIVE PROCEEDINGS
Plaintiff filed for SSI benefits, alleging disability since 2007 (Tr. 23, 89, 97). His claim was

denied initially and upon reconsideration (Tr. 50-55, 57-59). A hearing was then held before an
administrative law judge (“ALJ”), who found Plaintiff was not disabled (Tr. 12-20). The ALJ’s
decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s
request for review (Tr. 1-4).

II.

ELIGIBILITY FOR DISABILITY BENEFITS
The Social Security Administration determines eligibility for disability benefits by following

a five-step process. 20 C.F.R. § 404.1520(a)(4)(i-v).
1) If the claimant is doing substantial gainful activity, the claimant is
not disabled.
2) If the claimant does not have a severe medically determinable
physical or mental impairment-i.e., an impairment that significantly
limits his or her physical or mental ability to do basic work
activities-the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one
of the listings in Appendix 1 to Subpart P of the regulations and
meets the duration requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from
doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant
is not disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647 (6th Cir. 2009). The claimant bears the burden of
proof at the first four steps. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). In
this appeal, Plaintiff challenges the ALJ’s conclusion at step three.1
III.

FACTUAL BACKGROUND AND ALJ’S FINDINGS
Plaintiff does not allege any error with respect to (1) the ALJ’s findings relating to his

physical conditions or (2) the determination of Plaintiff’s mental conditions other than mental
retardation. Therefore, the facts recited herein will focus on Plaintiff’s alleged mental retardation
and will not specifically address the facts related to impairments not at issue in this appeal.

1

Although Plaintiff makes his challenge at step three, it is difficult under the facts of this case
to separate the analyses at steps two and three, and both are therefore discussed below.
2

A.

Plaintiff’s Medical Records

On April 25, 2008, Donna Abbott, M.A., and B. Wayne Lanthorn, Ph.D., evaluated Plaintiff
(Tr. 211-19).2 Plaintiff alleged disability due to back problems, seizures, education, psychological
problems, cracked vertebrae, and attempted suicide (Tr. 211). He indicated he had back problems,
could not read or write, and had experienced seizures for about one year, with one seizure in the past
three months (Tr. 212). He reported he took Dilantin daily (Tr. 212). Plaintiff reported having had
back problems for 15 years, indicating they had worsened as he got older (Tr. 212). Plaintiff
reported he did not drink as much as he had in the past (Tr. 212). He stated that while he was
incarcerated for public intoxication, he had tried to hang himself resulting in hospitalization (Tr. 212,
214). He stated that it took a month for his voice to recover from the attempted suicide and he
indicated he did not remember as well as he should (Tr. 212). Plaintiff did not have current suicidal
thoughts, and he denied any psychiatric treatment (Tr. 212-13). Plaintiff reported he failed the first
grade and was never in special education because it was not available (Tr. 213). He stated he could
not learn; he could not read the headlines of a newspaper; and he could not write instructions from
a phone message (Tr. 213). He could, however, write his name (Tr. 213). Plaintiff reported that he
last worked at Rowe’s Furniture in August 2007, but he quit because he could not stand on his feet
(Tr. 213). Prior to that, he had worked as a roofer for seven years framing houses and doing

2

As noted by Defendant, this report is not signed by Ms. Abbott or Dr. Lanthorn (Tr. 218).
According to the applicable regulation, all consultative examination reports will be personally
reviewed and signed by the medical source who performed the examination. 20 C.F.R. §
404.1519n(e). While the report technically violates the regulation, there is no suggestion they did
not perform the examinations or set forth the findings in the report. In addition, Ms. Abbott
electronically signed a form attesting to the fact that she “personally conducted, or personally
participated in conducting, the consultative examination” (Tr. 219). Moreover, both parties rely on
portions of the consultative report.
3

carpentry work sporadically (Tr. 213).
On mental status evaluation, Plaintiff was appropriately oriented (Tr. 213). He was
cooperative and pleasant, but had little to say spontaneously (Tr. 213). His affect was somewhat
depressed, more in line with dysthymia (Tr. 214). Plaintiff’s processes appeared to be intact, and
he could supply his own historical information and relevant dates (Tr. 213). Plaintiff was able to
attend and concentrate to complete tasks, and he could follow simple directions (Tr. 214). His eye
contact was good, he appeared to be rational and alert, and he described his routine day as “pretty
much watch TV, that’s about it, unless a friend comes by.” (Tr. 214). He washed dishes sometimes,
and did some laundry (Tr. 214). He also prepared microwave meals and performed self-help skills
(Tr. 214).
On the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III), Plaintiff obtained a
verbal IQ of 62, a performance IQ of 59, and a full scale IQ score of 58 (Tr. 215). The examiners
reported, “[h]is effort seemed marginal in performing the tasks on the WAIS-III and his potential is
likely to be higher.” (Tr. 216). On the Wechsler Memory Scale-Third Edition (WMS-III), Plaintiff’s
scores ranged from extremely low to low average (Tr. 216).
Ms. Abbott and Dr. Lanthorn diagnosed alcohol dependence; cannabis dependence, in
sustained full remission; dysthymic disorder; mild mental retardation (potential expected to be higher
as Plaintiff did not appear to put forth his best effort); seizures for the last year; functionally
illiterate; and difficulty with ongoing alcohol usage (Tr. 216-17). They assessed a Global

4

Assessment of Functioning (GAF) score of 553 (Tr. 217). They opined Plaintiff was likely to have
difficulty with complex and maybe even detailed instructions, and he would likely have moderate
to significant difficulty adapting to change and dealing with stress (Tr. 217). Plaintiff’s general
adaptation skills showed moderate to significant limitation and his intellectual functioning was in
the extremely low range, but due to marginal effort, it was expected that his potential was somewhat
higher (Tr. 217). They found the quality of Plaintiff’s verbalizations and history would suggest he
functioned at a higher level, perhaps in the “Borderline range” (Tr. 217). Plaintiff could understand
and remember on a level commensurate with his intellectual functioning (Tr. 217). They opined
Plaintiff could attend and concentrate to complete tasks and should be able to maintain simple
routines from a mental standpoint (Tr. 217). His social interaction was fair and he should be able
to work in proximity to others (Tr. 217). He could be aware of simple hazards and take precautions
and should be able to set some goals and make plans to achieve these goals (Tr. 217). They opined
Plaintiff appeared to have some chronic mild depression which he had for several years and found
his primary limitation related to alcoholism (Tr. 217). They found he also was functionally illiterate,
which could affect the types of the jobs he could perform (Tr. 217). They also stated that it was
unclear how much Plaintiff’s attempted hanging affected his abilities as there was no clear record
to premorbid functioning (Tr. 217-18).
On May 16, 2008, Robert Paul, Ph.D., a state agency psychologist, reviewed the record
evidence, including the report from Ms. Abbott and Dr. Lanthorn and Plaintiff’s reported activities
3

A GAF of 51-60 indicates some moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers). Am. Psychiatric Ass’n, Multiaxial
Assessment, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (“DSM-IV”) (4th ed.
2002).
5

(Tr. 240). He opined that Plaintiff had borderline intellectual functioning, rule out cognitive disorder
NOS; limited literacy; depression; a personality disorder; and a history of alcohol/substance abuse
versus dependence, resulting in moderate restrictions of daily activities and concentration,
persistence, and pace, and mild difficulties in social functioning (Tr. 228-40). Dr. Paul noted that
the results of psychometric testing at the consultative examination indicated cognitive functioning
in the mental retardation range along with commensurate memorial functioning, but also noted
Plaintiff was reported as having given less than full effort during formal testing (Tr. 240). Dr. Paul
considered that the mental status examination results depicted Plaintiff with better (intact) memorial
functioning and Plaintiff’s intellectual functioning historically estimated as higher than mental
retardation (Tr. 240). Dr. Paul also reported that the consultative examiners observed that Plaintiff
was able to follow, and concentrate adequately upon, simple instructions (Tr. 240). Dr. Paul opined
that, apart from the effects of acute substance intoxication, Plaintiff retained sufficient mental
capacity to understand, remember and carry out at least simple instructions and relate adequately to
supervisors and co-workers for purposes of task completion (Tr. 240). Dr. Paul completed a mental
residual functional capacity assessment, in which he opined that Plaintiff could understand and
remember simple tasks, and instructions should be conveyed verbally or by demonstration; he could
sustain adequate persistence and pace for simple tasks for two hour segments across normal work
day and work week; he may experience some, but not substantial, difficulty dealing with general
public; he could relate adequately for purposes of task completion to co-workers and supervisors;
he could adapt and respond to changes in a routine work setting given reasonable support; and he
could make/set simple work-related plans and goals independently but may have difficulty with more
complex decision making (Tr. 243).
6

Medical records from Holston Counseling Center, dated October 2, 2008 to January 19, 2009,
mostly relating to Plaintiff’s depression and alcohol abuse also appear in the record (Tr. 253-61).
Charles Gaines, D.O., performed a psychiatric evaluation on October 20, 2008 (Tr. 258). During the
mental status examination, Plaintiff’s mood was dysphoric and his affect was consistent with his
description of mood (Tr. 259). He was calm and cooperative, alert, and oriented times four (Tr. 259).
Plaintiff’s speech was of normal rate and rhythm, his concentration was good, his insight and
judgment were intact, his memory was intact, and he could recall events of the past few hours, days,
weeks, months, and years (Tr. 259). Plaintiff’s intelligence appeared average and his thoughts were
logical, coherent, and goal-directed (Tr. 259). Plaintiff did not experience hallucinations or
suicidal/homicidal ideation, and he exhibited no abnormal movements or postures (Tr. 259). Dr.
Gaines diagnosed major depressive disorder, alcohol dependence in early remission, nicotine
dependence, and he assessed a GAF of 65 (Tr. 259). At that time, Plaintiff’s medications were
Vistaril, Prozac, Trazodone, and Dilantin (Tr. 259). On the same date, Dr. Gaines completed a form
in which he checked a box that stated that Plaintiff was physically or mentally unfit for employment
or training for employment, and he would be unable to work or participate in training for an
indefinite period of time (Tr. 251).
B.

Plaintiff’s Work and School History and Hearing Testimony

Plaintiff dropped out of school after the seventh grade (Tr. 24). He experienced difficulty
in school with “pretty much everything” (Tr. 27). Plaintiff cannot read or write more than his name,
although he can recognize certain signs (Tr. 123, 207).
Plaintiff has past work experience doing construction work, such as roofing and framing (Tr.
25). He indicated that he had help at work with the “difficult stuff,” as he could not read (Tr. 25).
7

When framing, someone set up the work, and he put it up (Tr. 25). He also worked in furniture
manufacturing for a month in 2007 (Tr. 26, 114, 124). He quit this job due to physical difficulties
(Tr. 26).
Plaintiff stated that his biggest problems were back pain, breathing problems, seizures, and
depression (Tr. 28). He stated that he had problems standing and sitting due to back pain: he could
stand in one spot for about five minutes, then had to sit, and he could sit for about an hour at a time,
but was most comfortable lying on his back (Tr. 34-36). He indicated that pain went down his leg
once or twice a week (Tr. 30). For pain, he took Tylenol and Goody’s Powder, which sometimes
helped (Tr. 29). Plaintiff stated that his breathing problems affected him mostly during the night and
he smoked a half a pack of cigarettes each day (Tr. 36). Plaintiff, who did not have insurance (Tr.
30), indicated that he used inhalers prescribed to his sister (Tr. 36-37).
Plaintiff testified that his last seizure occurred during the past summer (Tr. 37). Plaintiff also
testified that he had a stroke in the past and, as a result, had short-term memory loss (Tr. 33).
Plaintiff stated that he took medication for depression and that his sister helped him pay for the
medication (Tr. 31). He indicated the medication was helpful (Tr. 32). Plaintiff stated that he lived
with his disabled girlfriend and she helped care for him (Tr. 33). As to his daily activities, he sat in
a chair and watched television, walked to the mailbox, and washed dishes once in a while (Tr. 33).
Plaintiff testified that he last drank alcohol four months prior to the hearing (Tr. 28).
On February 20, 2008, Plaintiff’s sister completed a report for the Agency (Tr. 106-13). She
reported that Plaintiff could not read or write, except his name (Tr. 109, 111). She also noted that
since he tried to hang himself, he had difficulty remembering how to count at times (Tr. 110).
Plaintiff could not remember things that were said when talking to people and would forget what he
8

was doing or supposed to do (Tr. 111).
C.

ALJ’s Findings

After the hearing, the ALJ issued an opinion finding Plaintiff was not disabled. At step one,
the ALJ found Plaintiff was not performing substantial gainful activity (Tr. 14). At step two, the
ALJ found Plaintiff had several severe impairments, including disorders of the back, seizure
disorder, borderline intellectual functioning, depression, and alcohol dependence in early remission
(Tr. 14). At step three, of chief importance here, the ALJ found Plaintiff did not have any
impairment or combination of impairments severe enough to meet or medically equal a listed
impairment, specifically finding that Plaintiff’s mental impairments, considered singly and in
combination, did not meet or medically equal the criteria of listings 12.02, 12.04, or 12.09 (Tr. 14).
The ALJ determined Plaintiff had the residual functional capacity (“RFC”) to perform medium work,
“except occasional posturals, and avoidance of hazards, that is simple and routine, with limited
public contact.” (Tr. 15). Then, at step four, the ALJ determined that this RFC determination
precluded Plaintiff from performing any of his past relevant work (Tr. 19). Finally, the ALJ relied
on testimony of a vocational expert to conclude that, given Plaintiff’s RFC, there were jobs existing
in significant numbers in the national economy that Plaintiff could perform, and Plaintiff was
therefore not disabled (Tr. 19-20).
IV.

ANALYSIS
A.

Standard of Review

A court must affirm the Commissioner’s decision unless it rests on an incorrect legal standard
or is unsupported by substantial evidence. 42 U.S.C. § 405(g); Warner v. Comm’r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004) (quoting Walters, 127 F.3d at 528). Substantial evidence is “such
9

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Garner
v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). Furthermore, the evidence must be “substantial” in light of the record as a whole, “tak[ing]
into account whatever in the record fairly detracts from its weight.” Id. (internal quotes omitted).
If there is substantial evidence to support the Commissioner’s findings, they should be affirmed,
even if the court might have decided facts differently, or if substantial evidence would also have
supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v. Richardson, 440
F.2d 690, 691 (6th Cir. 1971). The court may not re-weigh evidence, resolve conflicts in evidence,
or decide questions of credibility. Garner, 745 F.2d at 387. The substantial evidence standard
allows considerable latitude to administrative decisionmakers because it presupposes there is a zone
of choice within which the decisionmakers can go either way, without interference by the courts.
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The court may consider any evidence in the record, regardless of whether it has been cited
by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may not,
however, consider any evidence which was not before the ALJ for purposes of substantial evidence
review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is under no
obligation to scour the record for errors not identified by the claimant, Howington v. Astrue, 2009
WL 2579620, *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of error not made by claimant
were waived), and arguments not raised and supported in more than a perfunctory manner may be
deemed waived, Woods v. Comm’r of Soc. Sec., 2009 WL 3153153, at *7 (W.D. Mich. Sep. 29,
2009) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory
claim of error without further argument or authority may be considered waived).
10

B.

Listing 12.05C

At the third step in the disability evaluation process, a claimant will be found disabled if his
impairment meets or equals one of the listings in the Listing of Impairments. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). The claimant bears the burden of proving every element of
the listing. King v. Sec’y Health & Human Servs., 742 F.2d 968, 974 (6th Cir. 1986).
The ALJ found that Plaintiff did not have “an impairment or combination of impairments that
meets or medically equals one of the listed impairments” (Tr. 14), explaining that Plaintiff’s mental
impairments did not meet or medically equal listings 12.02 (organic mental disorders: psychological
or behavior abnormalities associated with a dysfunction of the brain), 12.04 (affective disorders:
characterized by a disturbance of mood, accompanied by a full or partial manic or depressive
syndrome), and 12.09 (substance addiction disorders: behavioral changes or physical changes
associated with the regular use of substances that affect the central nervous system). The ALJ’s
findings concerning these specific listings is not challenged by the Plaintiff. Instead, Plaintiff argues
he did meet or equal listing 12.05C [Doc. 9], which describes the circumstances in which mental
retardation is severe enough to preclude gainful activity:
Mental retardation 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; . . . .

11

20 C.F.R. Pt. 404, Subpt. P, App’x. 1 § 12.05. As Plaintiff argues, if he met or equaled the criteria
of listing 12.05C, then the sequential evaluation process should have ended at step three with a
finding of disability.4 See Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).
1.

Should the ALJ have Considered Listing 12.05C?

Preliminarily, the Commissioner concedes that the ALJ’s decision does not expressly address
listing 12.05C [Doc. 11 at 2, Page ID# 46], but nonetheless argues that the ALJ implicitly rejected
the evidence of mental retardation. The Commissioner argues the ALJ must have found Plaintiff’s
mild mental retardation diagnosis “somewhat doubtful” because Ms. Abbott and Dr. Lanthorn noted
Plaintiff did not appear to put forth his best effort” [Doc. 11 at 15, Page ID# 59]. Similarly, the
Commissioner argues that the ALJ “effectively discounted the validity of the IQ scores” by finding
borderline intellectual functioning [Doc. 11 at 17, Page ID# 61]. The Commissioner also accurately
states that Dr. Paul opined Plaintiff had borderline intellectual functioning, but then argues that “the
ALJ’s finding that Plaintiff did not meet (or medically equal) Listing 12.05 was [thus] supported by
the opinion of Dr. Paul” [Doc. 11 at 16, Page ID# 60]. To the contrary, the ALJ’s decision simply
does not contain a “finding” on listing 12.05, implicit or otherwise. The ALJ did not credit Dr.
Paul’s opinion over the opinion of Dr. Lanthorn, nor did he reject Dr. Lanthorn’s opinion. Indeed,
he reported Dr. Lanthorn’s findings and opinion without commenting as to what weight he assigned

4

If the listing were met, the finding of disability would be final even if Plaintiff possessed
the RFC to perform some types of work. See Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (“If the
impairment meets or equals [the listing], the claimant is conclusively presumed to be disabled.”);
Shaw v. Chater, 221 F.3d 126 (2d Cir. 2000) (claimant establishes an “irrebuttable presumption” of
disability when she meets or equals a listing). Although it may seem incongruous to find a claimant
disabled who can perform substantial gainful activity, such an outcome is inherent in the nature of
the sequential evaluation process: at step three of the process, the agency has not yet determined the
claimant’s RFC.
12

it (Tr. 18). In sum, the ALJ simply did not weigh the evidence relevant to listing 12.05C, and
nothing in the ALJ’s opinion shows that he made any finding regarding listing 12.05C. See Jones
v. Barnhart, 364 F.3d 501, 504-05 (3d Cir. 2004) (holding that ALJ’s failure to identify particular
listing considered was not error where he nevertheless discussed the medical evidence relevant to
that listing). Significantly, the ALJ specifically mentioned three other listings that were fairly raised
by the evidence, making the omission of listing 12.05C all the more striking.
That the ALJ did not make a finding regarding a particular listing, however, is not in itself
error. There are over 100 listed impairments, each with multiple qualifying criteria, Social Security
Ruling (“SSR”) 86-8, and the ALJ cannot be required to consider each of them in every case. The
ALJ must, however, consider at least the listings corresponding to a claimant’s “severe”
impairment(s). See 20 C.F.R. § 404.1520a(d)(2); Coldiron v. Comm’r of Soc. Sec., 391 F. App’x
435, 438 (6th Cir. 2010) (noting that at step three, the ALJ determines whether the claimant “is
suffering from a severe impairment which . . . meets or equals a listed impairment”). As noted, the
ALJ found at step two that Plaintiff had the “severe” impairment of borderline intellectual
functioning, disqualifying Plaintiff from the listing for mental retardation.5 Thus, it appears that the
ALJ’s step-two finding short-circuited the sequential evaluation process, effectively preventing the
consideration of mental retardation as a possible listing. If so, then the ALJ’s failure to discuss
Plaintiff’s intellectual impairment at step three turns on the propriety of the step-two finding.

5

“[B]orderline intellectual functioning describes an IQ range that is higher than that for
mental retardation (generally 71-84)”; however, “it is possible to diagnose mental retardation in
individuals with IQ scores between 71 and 75 if they have significant deficits in adaptive behavior
. . . .” See Am. Psychiatric Ass’n, Disorders Usually First Diagnosed in Infancy, Childhood, or
Adolescence, DSM-IV (4th ed. 2002).
13

I FIND the ALJ erred in dismissing Plaintiff’s diagnosis of mild mental retardation at step
two. Step two is a de minimis hurdle which exists only to “screen out totally groundless claims.”
Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985). “[A]n impairment can
be considered not severe only if it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181,
190 (6th Cir. 2009) (internal quotations omitted). Of course, if there is conflicting evidence in the
record regarding whether the claimant suffers from an impairment at all, even a minimal one, then
it is up to the ALJ to resolve that conflict. See Carrelli v. Comm’r of Soc. Sec., 390 F. App’x 429,
436 (6th Cir. 2010). Still, the ALJ’s resolution of evidentiary conflicts must be sufficiently clear to
enable meaningful appellate review. See Hurst v. Sec’y of Health & Human Servs., 753 F.2d 517,
519 (quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
Here, the ALJ’s step-two finding was not accompanied by any discussion of the evidence or,
indeed, by any explanation whatsoever. There is sufficient evidence to support the presence of mild
mental retardation as a severe impairment: Plaintiff was diagnosed with mild mental retardation,
albeit with the disclaimer that his potential might be higher. He scored less than 70 on an IQ test and
he produced evidence of poor school performance. The ALJ, however, did not address this line of
evidence, and it is therefore impossible to know whether he in fact considered it. There is, of course,
no requirement that the ALJ discuss every piece of evidence in the record. See Kornecky v. Comm’r
of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense Systems-Akron v. NLRB,
200 F.3d 453 (6th Cir. 1999)) (stating that an ALJ “can consider all the evidence without directly
addressing in his written decision every piece of evidence”). Nevertheless, in order to affirm a
decision which omits some significant evidence, the reviewing court must be able to discern that the
14

ALJ “consider[ed] the evidence as a whole and reach[ed] a reasoned conclusion.” Boseley v.
Comm’r of Soc. Sec., 2010 WL 3927043, *4 (6th Cir. Sep. 30, 2010) (unpublished). See also SEC
v. Chenery, 318 U.S. 80, 92 (1943) (reviewing court may not affirm the Commissioner’s decision
on grounds not articulated by the ALJ). Here, however, the ALJ did not merely omit some evidence
from his discussion; he failed to weigh any of the evidence relating to listing 12.05C, and I am
consequently unable to find that the ALJ considered the record as a whole in reaching his conclusion.
Furthermore, step two is not the stage at which the ALJ should, without comment, make fine
distinctions between two diagnoses, both supported by the record, which differ only in their severity
along a single axis. There is no dispute that Plaintiff has a severe intellectual limitation of some
degree; the question is whether that limitation was of sufficient severity to render Plaintiff unable
to work. That question, in lieu of a reasoned discussion at step two, should certainly have been
answered at subsequent steps. Indeed, a failure to identify a particular impairment as “severe” at step
two will ordinarily be harmless precisely because the ALJ must then consider all the claimant’s
impairments at the subsequent steps regardless of whether he found them “severe.” SSR 96-8p;
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 576-77 (6th Cir. 2009). Here, however, by naming
Plaintiff’s intellectual impairment as “borderline intellectual functioning” instead of “mild mental
retardation”—diagnoses which differ only in degree—the ALJ avoided any substantive discussion
of Plaintiff’s intellectual abilities. This was error.
2.

Was the Failure to Consider Listing 12.05C Reversible Error?

Nonetheless, the Commissioner argues that substantial evidence supports a finding that
Plaintiff did not meet the listing, and that Plaintiff did not present sufficient evidence to meet his

15

burden of proof that he did meet the listing. In other words, the Commissioner’s argument may be
fairly read to argue that, even had the ALJ explicitly considered listing 12.05C, Plaintiff could not
have satisfied its criteria. While I acknowledge that the ALJ could have found on the record that
Plaintiff did not meet listing 12.05C, I FIND there was also sufficient evidence to the contrary, and
I CONCLUDE the ALJ’s failure to explain his rationale therefore precludes meaningful appellate
review. See Hurst, 753 F.2d at 519.
As noted above, listing 12.05C provides that a claimant will be found disabled if he (1)
experiences significantly subaverage general intellectual functioning with deficits in adaptive
functioning that initially manifested before age 22; (2) has a valid IQ score of 60-70; and (3) another
impairment causing a significant work-related limitation of function. 20 C.F.R. Pt. 404, Subpt. P,
App’x 1 § 12.05; Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 492 n.2 (6th Cir. 2010). Taking
the last of these criteria first, it is beyond dispute that Plaintiff has other impairments which cause
significant work-related limitations. The ALJ found Plaintiff had “severe” impairments, including
disorders of the back and seizure disorder (Tr. 14), and the presence of these “severe” impairments
establishes that he suffers from “additional and significant work-related limitations.” See 20 C.F.R.,
Pt. 404, Subpt. P, App’x 1 § 12.00 (equating the phrases “significantly limits your physical or mental
ability to do basic work activities” and “is a ‘severe’ impairment(s)”); Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury (“Mental Disorders”), 65 Fed. Reg. 50746,
50772 (Aug. 21, 2000) (explaining that a “severe” impairment, as defined in step two of the
sequential evaluation, is equivalent to a significant work-related limitation of function).
The record is equivocal with respect to the other criteria. First, Plaintiff bore the burden to
show he had “significantly subaverage general intellectual functioning with deficits in adaptive
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functioning initially manifested during the developmental period.”6 Foster, 279 F.3d at 354. The
ALJ did not discuss whether Plaintiff experienced deficits in adaptive functioning during the
developmental period, but he did note Plaintiff’s poor school performance. See Yates v. Astrue, 2009
WL 2611276, at *10 (M.D. Tenn. Aug. 25, 2009) (history of poor or failing grades showed claimant
had been intellectually challenged his entire life). Put simply, the record contains substantial
evidence of developmental deficits. Although Plaintiff had achieved the skills necessary for
minimum self support, the record does not show a person so highly functioning that his daily
activities call into doubt the existence of developmental deficits. On the other hand, it is entirely
possible that further factual development would show that Plaintiff does function at a degree high
enough to belie the existence of such deficits. Similarly, although Plaintiff scored less than 70 on
an IQ test, there is also evidence that Plaintiff did not give his best effort. It is up to the ALJ to
resolve such conflicts in evidence in order to determine whether Plaintiff meets the criteria of the
listing. Garner, 745 F.2d at 387. This Court should not usurp the role of the Commissioner by
speculating what the ALJ might have considered with respect to listing 12.05C if, in fact, he
considered listing 12.05C at all.
In addition, where a claimant has an impairment described in the listing of impairments but
fails to meet one or more of the findings, the SSA is required to determine whether the claimant has
other symptoms “that are at least of equal medical significance.” 20 C.F.R. § 404.926(b)(1). Here
again, the Court simply cannot determine whether the ALJ made the required finding, and if so, what

6

The SSA has not quantified how severe a claimant’s developmental deficits must be in
order to qualify the claimant as mentally retarded, Wall v. Astrue, 561 F.3d 1048, 1074 (10th Cir.
2009), but they must be more than “potential” or “moderate,” see Payne v. Comm’r of Soc. Sec.,
2008 WL 2894482, at *4 (E.D. Tenn. Jul. 23, 2008).
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evidence he relied on to make that finding. In order to avoid a post hoc judgment that circumvents
the role Congress assigned to the Commissioner, this matter should be remanded for the ALJ to
make the required findings in a fashion that enables the reviewing court to determine whether
substantial evidence supports them.
In view of the record as a whole, the ALJ’s decision is not supported by substantial evidence.
See Smith v. Astrue, 2010 WL 5393999, at *5 (S.D. Ohio Dec. 1, 2010) (holding that the ALJ’s
decision “[wa]s not supported by substantial evidence,” even though the ALJ “may have [had] an
adequate basis” for finding that the claimant did not meet the listing, where the ALJ failed to address
and resolve conflicting evidence). Listing 12.05C was designed specifically for mildly mentally
retarded people with additional severe impairments. I express no opinion whether Plaintiff is in fact
mildly mentally retarded; instead, I CONCLUDE only that the ALJ’s decision was not supported
by substantial evidence because the ALJ did not address or resolve the competing evidence with
respect to Plaintiff’s intellectual impairment.
Therefore, I RECOMMEND this matter be REMANDED to the Commissioner for
reconsideration and, if appropriate, further factual development. 42 U.S.C. § 405(g) (empowering
the reviewing court, in Sentence Four, to remand a cause to the Commissioner); Hendricks v. Astrue,
2009 WL 648610, *9 (S.D. Ind. Mar. 11, 2009) (remanding where evidence could have supported
a finding that the claimant met listing 12.05C).
V.

CONCLUSION
Having carefully reviewed the administrative record and the parties’ pleadings, I

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RECOMMEND:7
(1)

Plaintiff’s motion for summary judgment [Doc. 8] seeking
remand under Sentence Four of 42 U.S.C. § 405(g) be
GRANTED.

(2)

Defendant’s motion for summary judgment [Doc. 10] be
DENIED.

(3)

The Commissioner’s decision denying benefits be
REVERSED and REMANDED pursuant to Sentence Four
of 42 U.S.C. § 405(g) for action consistent with this Report
and Recommendation.

s/

Susan K. Lee

SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

7

Any objections to this report and recommendation must be served and filed within fourteen
(14) days after service of a copy of this recommended disposition on the objecting party. Such
objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil Procedure.
Failure to file objections within the time specified waives the right to appeal the district court's order.
Thomas v. Arn, 474 U.S. 140, 149 n.7 (1985). The district court need not provide de novo review
where objections to this report and recommendation are frivolous, conclusive and general. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Only specific objections are reserved for appellate
review. Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987).
This document contains hyperlinks to other documents. Such links are provided for the
user’s convenience only, and the Court does not guarantee their functionality or accuracy. Any link
which directs the user to a document other than the document cited in the text will not supersede the
textual citation. The Court does not endorse the content of, or any provider of, any document
maintained by any other public or private organization.
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