Ligon v. Social Security Administration

Filing 14

REPORT AND RECOMMENDATION: For the reasons stated below, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge E. Clifton Knowles on 6/17/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
For THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GLENNIS EDWARD LIGON,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Civil Action No. 3:13-cv-00267
Judge Nixon / Knowles

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain
judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff
was not disabled and denying Plaintiff Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”), as provided under the Social Security Act (“the Act”), as amended.
The case is currently pending on Plaintiff’s Motion for Judgment on the Pleadings, which the
undersigned will construe as a Motion for Judgment on the Administrative Record. Docket No.
8. Defendant has filed a Response, arguing that the decision of the Commissioner was supported
by substantial evidence and should be affirmed. Docket No. 13.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.

1

I. INTRODUCTION
Plaintiff filed his applications for DIB and SSI on May 20, 2009, alleging that he had
been disabled since June 30, 2008, due to heart attacks, asthma, high blood pressure, high
cholesterol, acid reflux disease, slow learning, and unspecified substance abuse. Docket No. 4,
Attachment (“TR”), TR 63-72, 117-123, 124-130. Plaintiff’s applications were denied both
initially (TR 63-64, 65-66) and upon reconsideration (TR 67-69, 70-72). Plaintiff subsequently
requested (TR 86) and received (TR 88-105) a hearing. Plaintiff’s hearing was conducted on
August 3, 2011, by Administrative Law Judge (“ALJ”) Barbara Kimmelman. TR 29-62.
Plaintiff and vocational expert (“VE”), Michelle McBroom-Weiss, appeared and testified. Id.
On September 21, 2011, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 528. Specifically, the ALJ made the following findings of fact:
1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2008.

2.

The claimant has not engaged in substantial gainful activity
since January 15, 2008, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments:
obesity; hypertension; gastroesophageal reflux disease with
hiatal hernia; history of coronary artery disease and
myocardial infarction; diabetes mellitus with neuropathy;
mood disorder not otherwise specified; mild mental
retardation; cocaine dependence in remission; and cannabis
abuse (20 CFR 404.1520(c) and 416.920 (c)).

4

The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity
of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
2

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined in
20 CFR 404.1567(c) and 416.967(c) that is limited to
occasional lifting of fifty pounds; frequent lifting of
twenty-five pounds; sitting, standing, and walking for up to
six hours each in an eight-hour workday; frequent postural
activities but only occasional climbing of ladders, ropes,
and scafoflds; and avoiding work requiring exposure to the
sun. Additionally, the claimant is limited to one-to-three
step routine, repetitive tasks and should not work with the
public.

6.

The claimant is capable of performing past relevant work
as a grill cook and dishwasher. These jobs do not require
the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565
and 416.965).

7.

The claimant has not been under a disability, as defined in
the Social Security Act, from January 15, 2008, through the
date of this decision (20 CFR 404.1520(f) and 416.920(f)).

TR 10-24.
On October 17, 2011, Plaintiff timely filed a request for review of the hearing decision.
TR 4. January 24, 2013, the Appeals Council issued a letter declining to review the case (TR 13), thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil
action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the

3

extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standards of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The
purpose of this review is to determine (1) whether substantial evidence exists in the record to
support the Commissioner’s decision, and (2) whether any legal errors were committed in the
process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind would accept
as adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Substantial evidence” has been
further quantified as “more than a mere scintilla of evidence, but less than a preponderance.”
Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the Administrative Law Judge must stand if substantial evidence
supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997)). If the Commissioner did not consider the record as a whole, however, the
Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985)
(citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484

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F.2d 647 (6th Cir. 1973))).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by
proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful
activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the

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“listed” impairments1 or its equivalent. If a listing is met or
equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his or her
residual functional capacity (e.g., what the claimant can still do
despite his or her limitations). By showing a medical condition
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) Once the claimant establishes a prima facie case of disability,
the burden shifts to the Commissioner to establish the claimant’s
ability to work by proving the existence of a significant number of
jobs in the national economy which the claimant could perform,
given his or her age, experience, education, and residual functional
capacity.
20 C.F.R. §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175,
1181 (6th Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule.
Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does not direct a conclusion as to the claimant’s
disability, the Commissioner must rebut the claimant’s prima facie case by coming forward with
particularized proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary,
820 F.2d 777, 779 (6th Cir. 1987).

1

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
6

In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to consider the combined effect of all the
claimant’s impairments; mental and physical, exertional and nonexertional, severe and
nonsevere. See 42 U.S.C. § 423(d)(2)(B).
C. Plaintiff’s Statement Of Errors
Plaintiff contends that he meets the requirements for Listing 12.05(C) and, as a result, is
disabled as a matter of law. Docket No. 9. Accordingly, Plaintiff maintains that, pursuant to 42
U.S.C. § 405(g), the Commissioner’s decision should be reversed, or in the alternative,
remanded. Id.
Sentence ofur of § 405(g) states as ofllows:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.
42 U.S.C. §§ 405(g), 1383(c)(3).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can
be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).
Plaintiff contends that he meets the requirements for Listing 12.05(C) and is therefore
disabled as a matter of law. Docket No. 9. Specifically, Plaintiff maintains that he has had the
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requisite “additional impairments,” IQ scores, and deficits in adaptive functioning since before
age 22. Id. Plaintiff contends that his “severe impairments, including obesity, hypertension,
gastroesophageal reflux disease and hiatal hernia, history of coronary artery disease, and
diabetes mellitus with neuropathy” satisfy the “additional impairments” requirement. Id. at 4.
Plaintiff argues that his assessed IQ scores between 60 and 70, which classify him as mildly
mentally retarded, satisfy the requisite IQ limitation. Id. at 5. Plaintiff asserts that his mental
retardation includes deficits in adaptive functioning, and that these deficits have persisted since
before the age of 22. Id. at 5-6. Finally, Plaintiff argues that, although the ALJ evaluated
Plaintiff’s claim under Listings 12.04 and 12.09, the ALJ failed to evaluate his claim under
Listing 12.05(C). Id. at 6-7.
Defendant contends that, although Plaintiff has an IQ between 60 and 70, he does not
suffer the requisite deficits in adaptive functioning. Docket No. 13. Defendant also responds
that Plaintiff’s condition has been assessed as mild by two medical consultants and the ALJ, and
argues that “mild” is not likely to meet the standard for Listing severity. Id.
With regard to Listing 12.05(C), “Intellectual Disability,”2 the Code of Federal
Regulations states:
Intellectual disability refers to a 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.

2

At the time Plaintiff filed the instant action, the title of Listing 12.05 was “Mental
Retardation,” and the first sentence started “Mental retardation refers to...” While the title and
first two words have since been changed to “Intellectual Disability,” the remainder of the
Listing’s language and requirements are unchanged.
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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., Pt. 404, Subpt. P, App. 1, Listing 12.05(C).
Paragraph C of Section 12.00 for Mental Disorders explains:
C. Assessment of severity. We measure severity according
to the functional limitations imposed by your medically
determinable mental impairment(s). We assess functional
limitations using the four criteria in paragraph B of the listings:
Activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation. Where we
use “marked” as a standard for measuring the degree of limitation,
it means more than moderate but less than extreme. A marked
limitation may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree
of limitation is such as to interfere seriously with your ability to
function independently, appropriately, effectively, and on a
sustained basis. See §§ 404.1520a and 416.920a.
20 CFR Pt. 404, Subpt. P, App. 1, 12.00(C).
As an initial matter, in order to meet Listing 12.05(C), Plaintiff must satisfy the three
requirements in the introductory paragraph (i.e., (1) significantly subaverage general intellectual
functioning; (2) deficits in adaptive functioning; and (3) onset of said deficits before age 22), as
well as those contained in one of the four following sections (i.e., A, B, C, or D).
With regard to Plaintiff’s mental limitations, the ALJ explicitly discussed whether
Plaintiff’s mental limitations met or medically equaled the requirements for Listings 12.04 and
12.09. TR 11-12. Although Plaintiff is correct that the ALJ did not explicitly analyze Listing
12.05, she properly analyzed the severity of Plaintiff’s functional limitations pursuant to 20 CFR
9

Pt. 404, Subpt. P, App. 1, 12.00(C), which applies to all Listings in Section 12. Specifically, the
ALJ stated:
In activities of daily living, the claimant has mild restriction. The
claimant reported that he could prepare elaborate meals, wash
dishes, vacuum, sweep, and do laundry (Exh. 5F-3). He also
reported that he drove regularly and had little or no difficulty
managing his medications (Exh. 5F-3). A recent psychological
evaluation demonstrated that the claimant had some difficulty with
self-care (Exh. 17F-10). However, at the hearing the claimant
testified that he does chores and runs errands for his parents.
When questioned about chores around his own house, the claimant
stated that he helps clean up and take the trash out, but that he does
not have to do anything else because his live-in friend does the
rest. Based on the claimant’s own reports and testimony, the
undersigned finds that he has mild limitations in activities of daily
living.
In social functioning, the claimant has moderate difficulties. The
claimant reported that his main social support was his girlfriend
(Exh. 5F-3) and often endorsed symptoms of social isolation and
mood swings. He also reported that he becomes verbally
aggressive when he drinks and smokes (Exh. 12F-3). However,
the evidence of record shows that the claimant has been able to
perform some work activity for friends after the alleged onset date
and he testified that he plans to attend vocational school,
suggesting that he is capable of interacting well with others. The
undersigned therefore finds that the claimant has moderate
limitations in social functioning.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant suffers from mild mental
retardation and results of psychological evaluations show that he
has limitations in his ability to maintain attention and
concentration. However, again, the claimant has performed work
activity after the alleged onset date without any reported
psychological problems. Nevertheless, the claimant is given the
benefit of the doubt and the undersigned finds that he has moderate
limitations in concentration, persistence, and pace.
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration.
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TR 11-12.
When determining that Plaintiff experienced mild limitations in activities of daily living,
moderate limitations in social functioning and in maintaining concentration, persistence, and
pace, and no episodes of decompensation, the ALJ discussed Plaintiff’s mental health records as
follows:
As for the claimant’s mental impairments, the medical evidence of
record reflects diagnoses of mild mental retardation, mood disorder
not otherwise specified, cocaine dependence in remission, and
cannabis abuse. On August 26, 2009, he underwent a
psychological evaluation conducted by Kimberly Tartt-Godbolt,
Psy.D. He reported last receiving outpatient psychiatric care in
elementary school and no history of inpatient mental health
treatment (Exh. 5F-2). He admitted to a history of cocaine and
marijuana use and alcohol abuse, but he claimed that he had not
used cocaine in a year or smoked marijuana in six months (Exh.
5F-2). He stated that he only drank “lightly” one or two times a
week (Exh. 5F-2).
On evaluation, the claimant endorsed symptoms of irritability,
social isolation, occasional crying spells, and low energy and
motivation (Exh. 5F-2). However, he denied any homicidal or
suicidal ideation, hallucinations, or panic attacks (Exh. 5F-2). He
explained that he did not have good or bad days, but that all his
days were the same (Exh. 5F-2).
Dr. Tartt-Godbolt administered the Wechsler Adult Intelligence
Scale - Fourth Edition (“WAIS-IV”) and the Wide Range
Achievement Test - Fourth Edition (“WRAT4"). Based on the
claimant’s results on the WAIS-IV, Dr. Tartt-Godbolt found that
there was a ninety-five percent change [sic] of his full scale IQ
score falling between sixty-two and seventy, placing him in the
extremely low to borderline range of intelligence (Exh. 5F-3). Dr.
Tartt-Godbolt concluded that the claimant might experience “great
difficulty in keeping up with his peers in a wide variety of
situations that require thinking and reasoning abilities” (Exh. 5F3).
On the WRAT4, the claimant’s scores in word reading and math
computation indicated abilities equivalent to that of a third grader,
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spelling equivalent to that of a second grader, and sentence
comprehension equivalent to that of a first grader (Exh. 5F-6). Dr.
Tartt-Godbolt found that these scores demonstrated a marked
impairment in the claimant’s overall intellectual abilities (Exh. 5F9).
Based on her overall evaluation, Dr. Tartt-Godbolt diagnosed the
claimant with mild mental retardation and polysubstance
dependence (Exh. 5F-9). She noted that he showed evidence of
moderate impairment in his short-term memory and ability to
sustain concentration, but only mild impairment in his long-term
and remote memory functioning and ability to interact with others
and adapt to change (Exh. 5F-9). She further found that he
appeared capable of following instructions, both written and
spoken (Exh. 5F-9).
Lastly, Dr. Tartt-Godbolt gave the claimant a Global Assessment
of Functioning (“GAF”) score of fifty-seven (Exh. 5F-9). GAF
scores are subjective ratings of the social, occupational, and
psychological functioning of adults. A GAF score of fifty-seven
suggests moderate symptoms or moderate difficulty in social,
occupational, or school functioning (Diagnostic and Statistical
Manual of Mental Disorders, 4th ed.).
Following his evaluation, the claimant did not seek any mental
health treatment until January 8, 2010, when he presented to
Centerstone Mental Health Center (“Centerstone”) for an intake
assessment. He endorsed symptoms of mood swings, decreased
energy and motivation, a recent history of suicide ideation, and
social isolation (Exh. 11F-8). He reported that he had not used
cocaine for about a year and a half but admitted to ongoing
marijuana use (Exh. 11F-7). He was diagnosed with mood
disorder not otherwise specified, cocaine dependence in remission,
and cannabis abuse (Exh. 11F-8, 9).
A Tennessee Clinically Related Group form (“CRG”) was also
completed. The purpose of the CRG assessment is to provide
operational definitions based on Federal guidelines for classifying
persons with mental illness into one of five groups: (1) persons
with severe and persistent mental illness; (2) persons with severe
illness; (3) persons who are formerly severely impaired; (4)
persons with mild or moderate mental disorders; and (5) persons
that are not in the clinically related groups one through four as a
result of their diagnosis. These classifications are based on
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diagnosis, severity of functional impairment, duration of functional
impairment, and need for services to prevent relapse. CRGs also
provide narrative ratings in four general function areas - activities
of daily living; interpersonal functioning; concentration, task
performance and pace; and adaptation to change - as well as GAF
scores.
In the claimant’s CRG, he was categorized as a person with severe
and persistent mental illness and given a GAF score of forty-eight,
indicating serious symptoms or any serious impairment in social,
occupational, or school functioning (Exh. 11F-4); Diagnostic and
Statistical Manual of Mental Disorders, 4th ed., Text Revision). He
was found to have moderate limitations in all of the functional
areas except for interpersonal functioning, in which he was found
to have marked limitations (Exh. 11F-2, 3). However, this finding
of marked limitations seems to have been based on the claimant’s
history of violent behavior rather than his then current reported
symptoms (Exh. 11F-2).
On January 13, 2010, the claimant returned to MHC for an
individual therapy session but was referred to group therapy (Exh.
16F-47). It was noted that he presented with a cooperative
attitude, appropriate affect, normal mood, and logical thought
process (Exh. 16F-47).
On January 19, 2010, the claimant attended a dual diagnosis group
therapy session at MCH. He again presented with appropriate
mood and actively participated in the session (Exh. 16F-46). It
was noted that he had shown slight improvement in his substance
use (Exh. 16F-46).
On January 26, 2010, the claimant underwent a psychiatric
evaluation at MHC. His diagnoses were confirmed as mood
disorder not otherwise specified, cocaine dependence in remission,
and cannabis abuse, and he was started on citalopram (Exh. 16F13, 14).
After missing two appointments, the claimant returned to MHC on
February 23, 2010. He reported that he felt better and did not have
any problems (Exh. 16F-42). However, he explained that he could
feel his medication wearing off in the afternoon and was therefore
given an increased dosage (Exh. 16F-42, 43).
On April 5, 2010, he reported that his medication was still working
13

(Exh. 16F-39). However, he stated that it he [sic] had started
craving marijuana since starting and increasing his citalopram
dosage (Exh. 16F-39). He was taken off citalopram and started on
a trial of fluoxetine to see if that would be effective in treating his
symptoms and lessening his cravings (Exh. 16F-40).
On June 22, 2010, the claimant reported that he had been doing
“really good” (Exh. 16F-36). He stated that he still smoked
marijuana, but did so less frequently and had less cravings (Exh.
16F-36).
On September 20, 2010, the claimant’s fluoxetine dosage was
increased after he reported that he had been “snappy and more
depressed” (Exh. 16F-34, 35). On December 13, 2010, his
medication was increased again after complaints of ongoing anger
(Exh. 16F-32, 33). He also complained of sleeping difficulties and
was prescribed doxepin (Exh. 16F-32, 33). He was subsequently
taken off of doxepin because of his history of heart problems and
instead prescribed trazodone (Exh. 16F-31).
The claimant returned to MCH on March 7, 2011, complaining
that he was “done” after taking his medication and did not have the
“get up power” (Exh. 16F-30). However, on May 25, 2011, he
stated that he smoked marijuana every other day to calm him
down, explaining that he had “excess energy without it” (Exh.
16F-25). He also mentioned that he drank beer occasionally and
was told that alcohol was not good for his diabetes (Exh. 16F-25).
On June 21, 2011, the claimant underwent another psychological
evaluation, this one conducted by Cynthia P. Rush, a licensed
senior psychological examiner. Ms. Rush administered the WAISIV, on which the claimant obtained a full scale IQ score of sixtyone, placing him in the mildly mentally retarded range (Exh. 17F8). Ms. Rush noted that the claimant’s true IQ score was likely
somewhere within the range of fifty-eight to sixty-six (Exh. 17F8). Ms. Rush also administered the Vineland Adaptive Behavior
Scales - Second Edition (“VABS-II”), on which the claimant
obtained scores demonstrating low general adaptive functioning
skills (Exh. 17F-9). His performance on the VAB-II showed that
he had difficulty carrying out three-part instructions, following
directions, explaining ideas, read or understand material of at least
a fourth-grade level, taking medication as directed, complying with
medical treatment, using household products correctly, and
managing his finances (Exh. 17F-10).
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Based on her overall evaluation, Ms. Rush diagnosed the claimant
with mild mental retardation, depressive disorder not otherwise
specified, and anxiety disorder by history (Exh. 17F-10). She gave
him a GAF score of fifty, suggesting serious symptoms or any
serious impairment in social, occupational, or school functioning
(Exh. 17F-10; Diagnostic and Statistical Manual of Mental
Disorders, 4th ed., Text Revision). She opined that, due to the
claimant’s intellectual functioning, low adaptive behavior skills,
medical problems, and symptoms of depression, he might have
difficulty in self-care as he lacked the “basic skills needed to
manage his personal resources or plan for his self-sufficiency”
(Exh. 17F-10). She also opined that he had minimal marketing
skills and that he might have limitations in setting vocational goals
(Exh. 17F-10).
On June 22, 2011, the claimant returned to MHC complaining of
problems primarily resulting from his physical impairments but
mentioned that his “nerves [were] bad” and that he was “moodier”
because things were not going the way he wanted them to (Exh.
16F-20). However, he also stated that Prozac (fluoxetine) helped
to control his anger and keep him calm (Exh. 16F-20).
No additional mental health treatment records were provided.
...
As for the claimant’s mental impairments, the medical evidence of
record documents very little mental health treatment. On
evaluation by Dr. Tartt-Godbolt, the claimant was found to have
marked impairment in his overall intellectual abilities and potential
difficulty in keeping up with his peers in situations requiring
thinking and reasoning. However, Dr. Tartt-Godbolt opined that
the claimant had no more than moderate mental limitations.
At his intake assessment at MHC, the claimant was found to have
marked impairment in interpersonal functioning, but this was
based on his history of violent behavior and not his then current
reported symptoms. Over his course of treatment at MHC, the
claimant responded well to medication, consistently reporting
improvement in his symptoms.
The claimant recently underwent another psychological evaluation,
the results of which showed that he had low general adaptive
functioning skills and limitations in setting vocational goals.
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However, these findings were inconsistent with the overall
evidence of record. The claimant reported that he is capable of
performing a variety of household chores, but that he does not
have to do certain things because of his live-in friend. Choosing
not to carry out certain tasks because one does not have to is not
the same as lacking the ability to perform those tasks.
Additionally, the claimant testified that his problems with
performing concrete work were not based on any mental symptoms
or limitations but sun exposure. Further, the claimant has held
both skilled and semi-skilled jobs, and he expressed his intent to
return to vocational rehabilitation and attend vocational school.

TR 17-22.
The ALJ also discussed Plaintiff’s testimony and subjective complaints, recounting in
part:
The claimant testified that he cannot work because his medications
make him tired, adding that he does not even have the strength to
stand without becoming tired. He also testified that he does not
“function right” when taking his medications. However, he stated
that his doctors have only limited him to minimal sun exposure,
advising him not to “get too hot.”
When questioned about his work as a concrete laborer, the
claimant testified that he stopped because his “body wouldn’t let
[him] get out there in the sun and do what it normally would do.”
He testified that he recently went to vocational rehabilitation, but
explained that he did not perform all of the tests completely
because he was not “functioning right.” He stated that he plans to
return to vocational rehabilitation and see about going to
vocational school.
TR 20.
With regard to her evaluation of the opinion evidence concerning Plaintiff’s mental
impairments, the ALJ stated:
As for the mental assessments, significant weight is given to the
opinion of Dr. Warren, the State agency psychological consultant,
that the claimant can understand and remember simple
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instructions; attend and concentrate for periods of two hours;
interact appropriately with peers and supervisors but should not
work the [sic] public; and adapt to routine workplace changes
(Exh. 13F-3). Significant weight is also given to the assessment of
State agency psychological consultant Victor L. O’Bryan, Ph.D.,
that the claimant can perform one-to-three step tasks, concentrate
for such tasks, and adapt to infrequent changes in a work routine
(Exh. 10F-3). The undersigned finds that these assessments are
consistent with the evidence of record as a whole, particularly the
findings of consultative examiner Dr. Tartt-Godbolt and the MHC
treatment records which reflect improved psychological symptoms
with medication.
Significant weight is also given to the assessment of Dr. TarttGodbolt inasmuch as it reflects no more than moderate mental
limitations. The findings of Ms. Rush, who conducted the most
recent psychological evaluation of the claimant, is given little
weight as it is inconsistent with the claimant’s own reported
activities.
TR 22.
The ALJ also observed:
The claimant testified that he continued to do some work after his
alleged onset date and this is corroborated by the medical evidence
of record. On February 17, 2009, he reported that he had injured
himself while at work, and in September 2009 he sought treatment
on two separate occasions after getting sick while doing concrete
work. He testified that his problem with performing concrete work
was sun exposure and that he has been told by his doctors to avoid
getting too hot, adding that this was the only restriction given.
...
. . . Additionally, the claimant testified that his problems with
performing concrete work were not based on any mental symptoms
or limitations but sun exposure. Further, the claimant has held
both skilled and semi-skilled jobs, and he expressed his intent to
return to vocational rehabilitation and attend vocational school.
The claimant testified that he cannot work because his medications
make him tired. However, this is inconsistent with his recent
report that he smoked marijuana every other day to calm down
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because otherwise he would have “excess energy.”
Lastly, the undersigned notes that on June 21, 2011, the claimant
reported that he worked for a friend pouring concrete but had not
worked in two months because he was tired. The undersigned
finds that this was inconsistent with the claimant’s testimony that
he last did concrete work in September 2009. Additionally, this
shows that the claimant is capable of performing work as long as
he avoids sun exposure.
TR 21-22.
As can be seen, although the ALJ did not explicitly discuss Listing 12.05(C), she
addressed the relevant evidence in detail and determined that Plaintiff’s impairments did not
meet or medically equal a listing. In so doing, the ALJ discussed, inter alia, the inconsistencies
within and between the medical and testimonial evidence; Plaintiff’s medications, their reported
efficacy and side effects; Plaintiff’s reported activities, including that he had worked after his
alleged onset date; Plaintiff’s testimony and subjective complaints, including the fact that the
primary reason given by Plaintiff for his alleged inability to return to work was physical, not
mental; and Plaintiff’s stated intent to return to vocational rehabilitation and attend vocational
school. Ultimately, the ALJ found that Plaintiff could perform past relevant work, as well as
perform other jobs identified by the VE as available and appropriate. Based on the evidence of
record, this determination was proper. The record, as properly considered by the ALJ, simply
does not support Plaintiff’s contention that he suffered deficits in adapative functioning of the
requisite severity, much less that the onset of his alleged impairment was before age 22. The
ALJ considered the objective and testimonial evidence, reached a reasoned decision, and
articulated the basis for that decision. The ALJ’s decision was supported by substantial
evidence, and the record does not support Plaintiff’s assertion that he met the criteria of Listing

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12.05(C) such that he was disabled as a matter of law.
Because the ALJ properly evaluated the evidence of record and the ALJ’s decision is
supported by substantial evidence, the ALJ’s decision should stand.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Pleadings be DENIED, and that the decision of the Commissioner be
AFFIRMED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge

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