Smith v. Social Security Administration

Filing 19

REPORT AND RECOMMENDATION: In light of the foregoing, the undersigned RECOMMENDS that the Motion for Judgment (Doc. 16 ) be GRANTED, that the decision of the Commissioner be REVERSED, and that the matter be REMANDED to the Commissioner of Social Security, pursuant to Sentence 4 of 42 U.S.C. § 405 (g), for further consideration of whether Plaintiff's intellectual impairment meets or equals Listing 12.05C. Signed by Magistrate Judge Norah McCann King on 10/19/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JERRICA MARIE SMITH,
Plaintiff,
Case No. 3:16-cv-00708
CHIEF JUDGE CRENSHAW
Magistrate Judge King

vs.
SOCIAL SECURITY ADMINISTRATION,
Defendant.

To:

The Honorable Waverly D. Crenshaw, Jr., Chief Judge
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §§

405(g), 1383(c) for review of a final decision of the Commissioner of
Social

Security

denying

plaintiff’s

application

for

supplemental

security income. This matter is before the Court on Plaintiff’s Motion
for Judgment on the Administrative Record (Doc. No. 16)(“Motion for
Judgment”), Defendant’s Response to Plaintiff’s Motion for Judgment on
the

Administrative

Record

(Doc.

No.

17)(“Response”),

and

the

administrative record (Doc. No. 10). 1 For the following reasons, the
undersigned

RECOMMENDS

that

the

Motion

for

Judgment

(Doc.

16)

be

GRANTED, that the decision of the Commissioner be REVERSED, and that
the

matter

pursuant

to

be

REMANDED

Sentence

to
4

of

the

Commissioner

42

U.S.C.

§

of

Social

405(g),

for

Security,
further

consideration of whether Plaintiff’s intellectual impairment meets or
equals Listing 12.05C.
1

Citations to pages in the Administrative Record will appear as “Tr. __.”

1

Introduction
Plaintiff filed her application for supplemental security income
on

June

22,

2009.

The

application

was

denied

initially

and

on

reconsideration and Plaintiff requested a de novo hearing before an
administrative

law

judge

(“ALJ”).

An

administrative

hearing

was

originally held in December 2011, Tr. 65-83, following which the ALJ
found that Plaintiff was not disabled. Tr. 89-104. On July 2, 2013,
however,

the

Appeals

Council

remanded

the

case

for

further

consideration of Plaintiff’s alleged substance use disorder, residual
functional capacity (“RFC”), and past relevant work. Tr. 110-12. A
second administrative hearing was held on October 18, 2013, before a
different ALJ. Tr. 41-64. Plaintiff, who was represented by counsel,
testified at that hearing, as did Dana M. Stoller, who testified as a
vocational expert.
In

a

decision

dated

December

20,

2013,

the

ALJ

held

that

Plaintiff was not disabled within the meaning of the Social Security
Act from the date of her application for benefits through the date of
the administrative decision. That decision became the final decision
of

the

Commissioner

of

Social

Security

when

the

Appeals

Council

declined review on February 16, 2016.
This

action

was

thereafter

timely

filed.

This

Court

has

jurisdiction over the matter. 42 U.S.C. § 405(g).
Standard of Review
Pursuant

to

42

U.S.C.

§405(g),

judicial

review

of

the

Commissioner’s decision is limited to determining whether the findings
of the ALJ are supported by substantial evidence and employed the
proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971);

2

Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)(internal quotation
marks and citation omitted).

Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a
conclusion.

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th

Cir. 2009); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003). This Court does not try the case de novo, nor does it resolve
conflicts

in

the

evidence

or

questions

of

credibility.

Bass

v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.

Kirk v. Sec’y of

Health and Human Services, 667 F.2d 524, 536 (6th Cir. 1982).

If the

Commissioner's decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently,
Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir.
1990)(citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983)), and even if substantial evidence also supports the opposite
conclusion.

Longworth v. Commissioner Social Security Administration,

402 F.3d 591, 595 (6th Cir. 2005)(citing Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004)).
The Findings and Conclusions of the ALJ
In her decision, the ALJ made the following findings of fact and
conclusions of law:

1.
The claimant has not engaged in substantial
gainful activity since June 22, 2009, the application
date (20 CFR 416.971 et seq.).
2.
The claimant has the following severe impairments:
right carpal tunnel syndrome status post release in
2009;
obesity;
depressive
disorder
not
otherwise
specified; mild mental retardation versus borderline
intellectual
functioning;
rule
out
personality
disorder;
polysubstance
dependence;
rule
out

3

borderline intellectual functioning;
learning disorder (20 CFR 416.920(c)).

and

rule

out

3.
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
416.920(d), 416.925 and 416.926).
4.
After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) occasional lifting of
thirty pounds, frequent lifting of fifteen pounds,
standing and walking for five to six hours total in an
eight-hour workday, and sitting for seven hours total
in an eight-hour workday. When not using substances,
the claimant can understand, remember, and carry out
simple, one- and two-step instructions only and make
simple, repetitive decisions. The claimant is able to
ask simple questions or request assistance if needed;
able to maintain attention for periods of at least two
hours and complete a normal work week with acceptable
performance and productivity under normal supervision;
able to maintain regular attendance, able to be
punctual within customary tolerances, and able to
sustain
an
ordinary
routine
without
special
supervision. In addition, the claimant is able to
accept instructions
and
respond
appropriately
to
criticism
from
supervisors;
able
to
interact
appropriately with peers and supervisors; able to work
with the general public; and able to set goals. The
claimant should avoid hazards and is able to adapt to
infrequent workplace changes.
5.
The claimant is able to perform her past relevant
work as an assembler (20 CFR 416.965).
6.
The claimant has not been under a disability, as
defined in the Social Security Act, since June 22,
2009, the date the application was filed (20 CFR
416.920(g)).
Tr. 17, 21, 35-36.
Summary and ALJ’s Evaluation of Relevant Evidence
Plaintiff left school in the 9th grade. She reported to the state
agency that, although she can read and write in English, Tr. 237, she
is “slow” and needs help in doing so. Tr. 238, 246. She has difficulty

4

filling out job applications. Tr. 74-75. However, her hobbies include
reading.

Tr.

71,

247.

Plaintiff

testified

that

she

left

her

past

relevant job as an assembler because she was worried about child care,
Tr. 74, and because the job ended. Tr. 56.
In

1998,

when

Plaintiff

was

16

years

of

age,

a

school

psychologist administered the WISC–III, on which Plaintiff obtained a
verbal IQ score of 62, a performance IQ score of 61, and a full scale
IQ score of 61. Tr. 272. 2 On the WJAT-R, Plaintiff achieved a grade
equivalent of 3.6 in reading and 2.9 in written language, results that
were

characterized

as

“[d]eficient”

but

“commensurate

with

[Plaintiff’s] level of intellectual functioning” on the WISC-III. Tr.
273.

Based

on

the

Vineland

Adaptive

Behavior

Scales,

Plaintiff’s

adaptive functioning was characterized as “significantly outside of
expectations for a child her age,” but “generally commensurate with
her intellectual[] ability. . . .” Tr. 272. According to the school
psychologist, Plaintiff appeared “to put forth good effort,” and these
“test results are useful.” Id. The examiner opined that Plaintiff
continued to meet the criteria “for special education services as a
child with mental retardation.” Id.
In October 2009, Plaintiff was psychologically evaluated at the
request of the state agency by Alice K. Garland, M.S. Apparently,
Plaintiff’s school records were not provided to Ms. Garland. See Tr.
336. Based on her mental status examination, Ms. Garland estimated
that Plaintiff’s intelligence was “[m]ildly retarded to borderline.”
Id. On the WAIS-III, Plaintiff achieved a verbal IQ score of 61, a
2

The ALJ erroneously indicated that Plaintiff’s verbal IQ score on this test
was “sixty-six.” Tr. 27.

5

performance IQ score of 60, and a full scale IQ score of 58. Tr. 339.
These scores would place an individual in the mildly mentally retarded
range;

however,

Ms.

Garland

suspected

that

these

results

were

“slightly low” estimates of Plaintiff’s ability, although she believed
that Plaintiff had used her best efforts on the WAIS-III. Id. 3 Ms.
Garland did not think that Plaintiff “is over borderline and possibly
mildly retarded.” Id. Ms. Garland’s diagnostic impression was “[m]ild
mental

retardation

to

borderline

intellectual

functioning.”

Id.

According to Ms. Garland, Plaintiff’s limitation in her ability to
perform very detailed and complex tasks is “moderate if not marked,”
her ability to persist and concentrate is at least moderately limited,
as is her ability to adapt, and her ability to deal with the public is
mildly impaired. Id.
In February 2010, P. Jeffrey Wright, Ph.D., reviewed the record
and

concluded

that

Plaintiff’s

“MMR

vs

BIF”

[i.e.,

mild

mental

retardation vs. borderline intellectual functioning] does not meet or
equal Listing 12.05. Tr. 345. However, like Ms. Garland, Dr. Wright
did not have Plaintiff’s school records available for his review. See
Tr.

395

(“***Special

received.”)(emphasis

in

Education

original).

In

classes,
June

2010,

no
George

records
T.

Davis,

Ph.D., affirmed Dr. Wright’s opinion. Tr. 475.
In January 2012, Plaintiff underwent a consultative psychological
examination by Michael C. Loftin, Ph. D., at the request of the state
agency. On mental status examination, Plaintiff was able to follow

3

Ms. Garland did not think that Plaintiff had used her best efforts on
achievement testing. Tr. 339.

6

written instructions, but showed a poor use of basic vocabulary and
basic math skills. Tr. 618. Plaintiff’s academic skills were measured
on the WRAT-4 at a 3rd to 4th grade level. Tr. 625. On the WAIS-IV,
Plaintiff achieved a verbal comprehension score of 81, which fell in
the

low

average

range,

a

perceptual

reasoning

score

of

79

and

a

working memory score of 77, which fell in the borderline range, and a
full scale IQ score of 75, which placed her in the borderline range of
intellectual

functioning.

Tr.

622-23.

Dr.

Loftin’s

diagnostic

impression was, inter alia, borderline intellectual functioning. Tr.
625. “She appears able to follow instructions, both written (simple)
and spoken.” Id.
The
hearing

vocational
that

unskilled

expert

Plaintiff’s

and

required

testified

past

light

at

relevant

exertion.

the
work

Tr.

second
as

57.

an

Asked

administrative
assembler
to

assume

is
a

claimant with “a ninth grade education,” with the RFC ultimately found
by the ALJ, Tr. 58-59, the vocational expert testified that such a
claimant could perform the work of an assembler – not as Plaintiff
described it – but as normally performed. Tr. 59. Additionally, the
vocational expert testified, such a claimant could also perform other
jobs

that

exist

in

significant

numbers

in

the

national

economy,

including such jobs as garment worker, basket filler, and laundry
folder. Tr. 60.
The ALJ gave “significant weight” to Ms. Garland’s assessment and
to those of the state agency reviewing psychologists, Drs. Wright and
Davis. Tr. 34. The ALJ gave “little weight” to Dr. Loftin’s assessment
because he did not have the benefit of Plaintiff’s school records and

7

because his report contained several inconsistent findings, e.g., “a
GAF score indicating moderate limitations but an assessment of no more
than mild limitations.” Id.
The

ALJ

expressly

considered

the

IQ

scores

reflected

in

the

record. Plaintiff’s school records
reflect[]
sub-average
intellectual
functioning
with
deficits in adaptive functioning that initially manifested
during the developmental period. . . . Ms. Garland found
that the claimant’s obtained IQ scores were slightly low
estimates of her actual ability, making the results of her
intellectual testing questionable in their validity. The
claimant’s representative argued that, even with Ms.
Garland’s finding that the claimant’s IQ scores were
“slightly low estimates,” 12.05(c) could still be met.
However, it would be mere speculation as to what the
claimant’s actual IQ scores are[,] given the questionable
validity of her obtained scores during the consultative
evaluation and her questionable effort. As . . . 12.05(c)
require[s] valid IQ scores, the absence of such valid
scores does not satisfy the criteria of [Listing 12.05C].
Tr.

27.

The

ALJ also

found

that the

full

scale IQ

score

of

75,

reported by Dr. Loftin, “further calls into question the validity of
the IQ scores” obtained by Ms. Gardner. Tr. 29. As noted, the ALJ
found

that

Plaintiff’s

characterized
intellectual

as

intellectual

“mild

functioning;

mental
.

.

impairment,

retardation

.

rule

out

which

versus

borderline

she

borderline
intellectual

functioning,” Tr. 17, does not meet Listing 12.05. Tr. 21.
Relying on the testimony of the vocational expert, the ALJ found
that,

despite

perform

her

Plaintiff’s
past

severe

relevant

impairments,

work

as

she

normally

can

nevertheless

performed.

Tr.

35.

Alternatively, the ALJ relied on the vocational testimony and used the
Medical-Vocational
Plaintiff

“has

a

Guidelines
limited

as

a

education

8

framework
and

is

–

after

able

to

finding

that

communicate

in

English,” Tr. 35 – to find that Plaintiff’s RFC would permit her to
perform other jobs that exist in significant numbers in the economy.
Tr.

35-36.

Accordingly,

the

ALJ

concluded

that

Plaintiff

is

not

disabled.
Plaintiff’s Claims
Plaintiff presents the following statement of errors:
Listing 12.05(C): Substantial Evidence Does Not Support the
ALJ’s Step-Three Finding That Smith Neither Met Nor Equaled
Listing 12.05(C).
Education: The ALJ Made Multiple Harmful Errors Regarding
Smith’s Education: Objective Testing Showed That Smith Was
Functionally Illiterate.
Motion

for

Judgment

(Doc.

16,

PageID#

709,

714).

The

Court

will

consider these claims in reverse order.
Discussion
1.
Plaintiff
education.
for

contends

that

the

ALJ

mischaracterized

Plaintiff’s

Motion for Judgment (Doc. 16, PageID# 714). The ALJ found,

purposes

of

applying

the

Medical-Vocational

Guidelines,

that

Plaintiff has a “limited education,” which is defined as “ability in
reasoning, arithmetic, and language skills, but not enough to allow a
person with these educational qualifications to do most of the more
complex job duties need in semi-skilled or skilled jobs.” 20 C.F.R. §
416.964(b)(3). Plaintiff argues that, in light of achievement testing
performed by Ms. Garland and Dr. Loftin, the ALJ should have found
that Plaintiff is “functionally illiterate.” Motion for Judgment (Doc.
16,

PageID#

718).

See

20

C.F.R.

§

416.964(b)(1)(A

claimant

is

illiterate “if the person cannot read or write a simple message such

9

as instructions or inventory lists even though the person can sign his
or her name.”). There is evidence in the record that Plaintiff can
read. See, e.g., Tr. 71, 237, 247, 369. In any event, however, the
ALJ’s finding in this regard is immaterial in light of the vocational
testimony and the ALJ’s finding that Plaintiff can perform her past
relevant work as an assembler regardless of her severe impairments.
Any error on the part of the ALJ, if indeed there is error in this
regard, was therefore harmless.
2.
As
physical

noted
and

supra,
mental

the

ALJ

found

impairments,

that

Plaintiff

including

the

suffers

severe

intellectual

impairments of “mild mental retardation versus borderline intellectual
functioning; . . . rule out borderline intellectual functioning.” Tr.
17. However, the ALJ found that Plaintiff’s intellectual impairments
neither met nor equaled a listed impairment, including Listing 12.05.
Tr. 18, 21. That Listing requires, under appropriate circumstances, a
finding of disability based on a claimant's intellectual disability: 4
Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental
period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
***
C. A valid verbal, performance, or full scale IQ of
60 through 70 and a physical or other mental impairment
imposing
an
additional
and
significant
work-related
limitation of function; . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
4

Prior to September 3, 2013, Listing 12.05 referred to “mental retardation,”
rather than to “intellectual disability.”

10

In order to satisfy Listing 12.05C, a claimant must establish
three elements: that she experiences “significantly subaverage general
intellectual functioning with deficits in adaptive functioning 5 [that]
initially

manifested

diagnostic

during

description);

the

(2)

developmental

that

she

period”

has

a

(i.e.,

“valid

the

verbal,

performance, or full scale IQ of 60 through 70;” and (3) that she
suffers

from

“a

physical

or

other

mental

impairment

imposing

additional and significant work-related limitation of function.”

an
Id.

See also Foster v. Harris, 279 F.3d 348, 354–55 (6th Cir. 2001).
Plaintiff argues that she satisfies Listing 12.05C in light of
her school records and the testing results reported by Ms. Garland and
in light of the other severe impairments found by the ALJ. Certainly,
the IQ scores contained in Plaintiff’s school records and reported by
Ms. Garland – if valid – would meet Listing 12.05C.
Although it is well established that an IQ score may be helpful
in assessing whether an individual has a medically determinable mental
impairment, that score is not the sole determinative criterion. “[T]he
results

of

intelligence

tests

are

only

part

of

the

overall

assessment.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 (D)(6)(a).
“The narrative report that accompanies the test results should comment
on whether the I.Q. scores are considered valid and consistent with
the developmental history and the degree of functional limitation.”
Id. “To be valid, an IQ score must reflect the ‘plaintiff’s true

5

“Adaptive functioning includes a claimant's effectiveness in areas such as
social skills, communication, and daily living skills.” West v. Comm’r of
Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007) (citing Heller v. Doe by
Doe, 509 U.S. 312, 329 (1993)). See also Hayes v. Comm’r of Soc. Sec., 357
F. App’x 672, 677 (6th Cir. 2009).

11

abilities,

as

demonstrated

by

his

or

her

performance

at

work,

household management and social functioning.’” Joyce v. Comm’r of Soc.
Sec.,

662

Fed.

Appx.

430,

(6th

434

Cir.

2016)(quoting

Brown

v.

Secretary of Health & Human Services, 948 F.2d 268, 269 (6th Cir.
1991)). See also Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 721
(6th Cir. 2012)(noting that an IQ score that satisfies the severity
criteria, standing alone, does not require a finding of intellectual
disability); Daniels v. Comm’r of Soc. Sec., 70 F. App’x 868, 872-74
(6th

Cir.

2003)(evaluating

additional

evidence

of

intellectual

functioning under the diagnostic criteria).
The ALJ found that the IQ scores contained in Plaintiff’s schools
records and as reported by Ms. Garland were not valid in light of Ms.
Garland’s suspicion that they were “slightly low,” Tr. 27, 339, and in
light of the substantially higher IQ scores reported by Dr. Loftin,
Tr. 29. However, the ALJ accorded “little weight” to Dr. Loftin’s
assessment

because,

Plaintiff’s

school

inter

alia,

records.

he

Tr.

did

34.

not

have

Instead,

the

the

benefit

ALJ

of

accorded

“significant weight” to the assessments of Ms. Garland and of the
state agency reviewing psychologists. Yet, none of these psychologists
had the benefit of Plaintiff’s school records either. See Tr. 336,
395,

475.

Moreover,

and

perhaps

most

significantly,

although

Ms.

Garland suspected that Plaintiff’s IQ scores were “slightly low,” Tr.
339,

her

ambiguous

diagnostic

assessment

–

i.e.,

“[m]ild

mental

retardation to borderline intellectual functioning,” id. – did not
eliminate

a

level

of

intellectual

Listing 12.05C.

12

functioning

inconsistent

with

Under all these circumstances, the undersigned concludes that the
finding of the ALJ, i.e., that Plaintiff’s intellectual impairment
neither

meets

nor

equals

Listing

12.05,

is

not

supported

by

substantial evidence in the record.
Plaintiff asks that the Commissioner’s decision be reversed and
that the Court remand the matter with directions for an award of
benefits. Motion for Judgment (Doc. 16, PageID# 718). The undersigned
declines to so recommend. Where, as here, there exists conflicting
evidence relevant to the

proper resolution of plaintiff’s claim, the

matter must be remanded for further proceedings by the Commissioner,
whose duty it is to resolve such conflicts.

Faucher v. Sec’y of

Health and Hum. Servs., 17 F.3d 171, 176 (6th Cir. 1994).
Recommendation
In light of the foregoing, the undersigned RECOMMENDS that the
Motion for Judgment (Doc. 16) be GRANTED, that the decision of the
Commissioner

be

REVERSED,

and

that

the

matter

be

REMANDED

to

the

Commissioner of Social Security, pursuant to Sentence 4 of 42 U.S.C. §
405(g), for further consideration of whether Plaintiff’s intellectual
impairment meets or equals Listing 12.05C.
Procedure on Objections
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for the objection.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

13

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted
district

object
a

waiver

court’s

to

the

of

[the

ruling”).

magistrate

judge’s

defendant’s]

Even

when

ability

timely

recommendations
to

objections

appeal
are

the

filed,

appellate review of issues not raised in those objections is waived.
Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general
objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal
.

.

.

.”)

conclusory

(citation
objections

omitted)).
does

not

Filing
meet

the

only

“vague,

requirement

general,
of

or

specific

objections and is tantamount to a complete failure to object.” Drew v.
Tessmer, 36 F. App’x 561, 561 (6th Cir. 2002) (citing Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
October 19, 2017
(Date)

14