United States District Court, S.D. Ohio, Western Division
MICHAEL J. NEWMAN MAGISTRATE JUDGE
AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION
FOR VOLUNTARY REMAND OF NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION (DOC.
#11); JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFF LORETTA
WEAVER-BROOKS AND AGAINST THE COMMISSIONER, REVERSING THE
COMMISSIONER'S DECISION THAT PLAINTIFF WAS NOT DISABLED
AND, THEREFORE, NOT ENTITLED TO BENEFITS UNDER THE SOCIAL
SECURITY ACT, AND REMANDING THE CAPTIONED CAUSE TO THE
DEFENDANT COMMISSIONER, PURSUANT TO THE FOURTH SENTENCE OF 42
U.S.C. § 405(g), FOR AN IMMEDIATE AWARD OF BENEFITS;
H. RICE, JUDGE
Loretta Weaver-Brooks ("Plaintiff') has brought this
action pursuant to 42 U.S.C. § 405(g) to review a
decision of the Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration
("Commissioner"), denying Plaintiff's
application for Social Security disability benefits. On
January 5, 2017, the Commissioner filed a Motion to Remand
("Motion"), moving that the Court enter judgment in
favor of Plaintiff and against the Commissioner, reversing
the Commissioner's decision that Plaintiff was not
disabled, and remanding the captioned cause to the
Commissioner for further proceedings, pursuant to sentence
four of 42 U.S.C. § 405(g). Doc. #11, PAGEID #946.
Plaintiff, in her memorandum contra, agrees that the
decision of the Commissioner's Administrative Law Judge
("AU"), Gregory Kenyon, should be reversed, but
argues that "a remand for payment of benefits is the
only just and appropriate remedy." Doc. #12, PAGIED
to the Commissioner for an immediate award of benefits is
only appropriate "where the proof of disability is
overwhelming or where the proof of disability was strong and
evidence to the contrary is lacking." Faucher v.
Sec'y of Health & Human Servs., 17 F.3d 171, 176
(6th Cir. 1994). Nonetheless, the instant case meets that
high standard. Under the version of 20 C.F.R. Pt. 404, Subpt.
P, Appendix 1 Listing ("Listing") 12.05 in effect
at the time of the ALJ's decision, Plaintiff could meet
her Step Three burden by showing that: (1) she had
"significantly subaverage general intellectual
functioning!, ]" shown through meeting the criteria of
one of four sub-listings (Listing 12.05(A-D)) that
demonstrate the severity of her mental impairment; and (2)
that Plaintiff's subaverage functioning "initially
manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment
before age 22[.]" The ALJ examined whether Plaintiff met
or equaled Listings 12.05(C) and 12.05(D), which required a
valid intelligence quotient ("IQ") score between
sixty and seventy, along with additional impairments or
restrictions that impose significant limitations in work or
life activities. Doc. #6-2, PAGEID #50-51. The ALJ concluded
that Plaintiff did not meet or equal either of those
listings, in part because she did not have a "physical
or other mental impairment imposing an additional significant
work-related limitation" (Listing 12.05(C)); nor did she
exhibit at least two of the marked limitations or repeated
episodes of decompensation required for Listing 12.05(D).
Id., PAGEID #51-52.
despite the Commissioner's examining psychologist
assessing a verbal scale, performing [sic] scale,
and full scale IQ score of fifty-four, fifty-five and fifty,
respectively, Doc. #6-2, PAGEID #50 (citation omitted), the
ALJ did not evaluate whether Plaintiff met or equaled Listing
12.05(B). To meet or equal Listing 12.05(B), a
claimant must have a valid IQ score of below sixty, but,
unlike Listing 12.05(C-D), she need not show any additional
impairment or restriction. The ALJ agreed with the
Commissioner's examining psychologists that "these
IQ scores were lower than would be expected based on the
claimant's clinical presentation." Id.,
PAGEID #51. Yet, as Plaintiff notes, this Court has held that
mere statements that IQ scores were "unexpected, "
given other factors, are not themselves sufficient to
invalidate the scores for the purposes of Listing 12.05. Doc.
#12, PAGEID #962 (citing Goodson v. Comm'rof Soc.
Sec, No. 3:10-cv-432, Doc. #12, at 381 (S.D. Ohio Jan.
24, 2012) (Ovington, Mag. J.), Report and Recommendations
adopted at Doc. #13 (S.D. Ohio Feb. 13, 2012) (Rice,
J.)). Similarly, the fact that Plaintiff was assessed Global
Assessment of Functioning ("GAF") scores of 54 and
55, which indicate moderate symptoms of mental impairment, is
not itself sufficient to invalidate IQ scores or find that
Plaintiff does not meet or equal Listing 12.05. Id.
(quoting Barnett v. Comm'r of Soc. Sec, No.
3:14-cv-03, Doc. #16 at PAGEID #493 (S.D. Ohio Feb. 4, 2015)
(Ovington, Mag. J.), Report and Recommendations adopted
at Doc. #17 (S.D. Ohio Feb. 24, 2015) (Rice, J.)).
Further, the ALJ did not conclude that Plaintiffs sub-sixty
IQ scores were actually invalid; nor does there appear to be
any basis for him to so conclude.
Commissioner emphasizes evidence of record, such as
Plaintiffs work history and activities of daily living, and
the fact that she was able to obtain a commercial
driver's license, in furtherance of her argument that
Plaintiff did not have significant deficits in adaptive
functioning; thus, the Commissioner, argues, Plaintiff did
not meet or equal Listing 12.05. Doc. #11, PAGEID #952-54
(citations omitted). Yet, as discussed above, a lack of
significant limitations in work or daily living is
irrelevant in determining whether Plaintiff met or
equaled Listing 12.05(B). Further, the Commissioner,
in her Motion, concedes that the ALJ erred in stating that
the administrative record "contains no education
record[s, ]" Doc. #11, PAGEID #952 (quoting Doc. #6-2,
PAGEID #51), that would constitute "evidence that any
sub-average intellectual functioning manifested during the
claimant's developmental period." Doc. #6-2, PAGEID
#51. Indeed, evidence of record shows that she had
deficiencies in "verbal skills" that manifested no
later than ninth grade. Doc. #6-6, PAGEID #439. In addition,
while the ALJ concluded that Plaintiff was not "truly
illiterate[, ]" Doc. #6-2, PAGEID #53, his opinion
contains several examples of Plaintiff's subaverage
intellectual functioning, e.g., poor verbal and arithmetic
skills during her examination by the Commissioner's
examining psychologist, and that Plaintiff's
uncontradicted statement that she "received special
education including assistance in reading, math, and
spelling." Id., PAGEID #51. The evidence above
is overwhelming, and permits only one conclusion: that, as of
the disability onset date, Plaintiff's mental impairment
met or equaled Listing 12.05(B). Consequently, remand for an
award of benefits, rather than for further proceedings, is
appropriate. Faucher, 17 F.3d at 176.
based upon the aforesaid, this Court SUSTAINS IN PART AND
OVERRULES IN PART the Commissioner's Motion to Remand.
Doc. #11. Judgment shall enter in favor of Plaintiff and
against the Commissioner, reversing the Commissioner's
decision that Plaintiff was not disabled and, therefore, not
entitled to benefits, under the Social Security Act, and
remanding the captioned cause to the Defendant Commissioner,
pursuant to sentence four of 42 U.S.C. § 405(g), for an
immediate award of benefits.
captioned cause is hereby ordered terminated upon the docket
records of the United States District Court for the Southern