United States District Court, S.D. Ohio, Western Division
L. OVINGTON MAGISTRATE JUDGE
AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE (DOC. #11), AND OVERRULING OBJECTIONS
OF DEFENDANT NANCY A. BERRYHILL, ACTING COMMISSIONER OF
SOCIAL SECURITY (DOC. #12), TO SAID JUDICIAL FILING; JUDGMENT
TO BE ENTERED IN FAVOR OF PLAINTIFF JASMINE CRANFORD AND
AGAINST THE DEFENDANT COMMISSIONER, REVERSING THE
COMMISSIONER'S DECISION THAT PLAINTIFF WAS NOT DISABLED
AND, THEREFORE, NOT ENTITLED TO BENEFITS UNDER THE SOCIAL
SECURITY ACT, AS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REMANDING THE CAPTIONED CAUSE TO THE COMMISSIONER PURSUANT TO
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN
IMMEDIATE AWARD OF BENEFITS; TERMINATION ENTRY
H. RICE UNITED STATES DISTRICT JUDGE
Jasmine Cranford ("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 June
20, 2017, Magistrate Judge Sharon L. Ovington filed a Report
and Recommendations, Doc. #11, recommending that the
Commissioner's decision that Plaintiff was not disabled
and, therefore, not entitled to benefits under the Social
Security Act ("Act"), 42 U.S.C. § 301 er
seq., be vacated, and that the captioned matter be
remanded to the Commissioner pursuant to the fourth sentence
of 42 U.S.C. § 405(g) for an immediate award of
benefits. Based upon reasoning and citations of authority set
forth below, as well as upon a thorough de novo
review of this Court's file, including the Administrative
Transcript, Doc. #6, and a thorough review of the applicable
law, this Court ADOPTS the Report and Recommendations, Doc.
#11, and OVERRULES the Defendant Commissioner's
Objections, Doc. #12, to said judicial filing. The Court, in
so doing, orders the entry of judgment in favor of Plaintiff
and against the Commissioner, reversing the decision of the
Commissioner that Plaintiff was not disabled and, therefore,
not entitled to benefits under the Act, as not supported by
substantial evidence. Further, the Court orders that the
captioned cause be remanded to the Commissioner, pursuant to
the fourth sentence of 42 U.S.C. § 405(g), for an
immediate award of benefits.
reviewing the Commissioner's decision, the Magistrate
Judge's task is to determine if that decision is
supported by "substantial evidence." 42 U.S.C.
§ 405(g). Under 28 U.S.C. § 636(b)(1)(C), this
Court, upon objections being made to the Magistrate
Judge's Report and Recommendations, is required to make a
de novo review of those recommendations of the
report to which objection is made. This de novo
review, in turn, requires this Court to re-examine all the
relevant evidence, previously reviewed by the Magistrate
Judge, to determine whether the findings "are supported
by substantial evidence." Valley v. Comm'r of
Soc. Sec, 427 F.3d 388, 390 (6th Cir. 2005). This
Court's sole function is to determine whether the record
as a whole contains substantial evidence to support the
Commissioner's decision. The Commissioner's findings
must be affirmed if they are supported by "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales,
402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)
(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S.
197, 229, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938)).
"Substantial evidence means more than a mere scintilla,
but only so much as would be required to prevent a directed
verdict." Foster v. Bowen, 853 F.2d 483,
486 (6th Cir. 1988). To be substantial, the evidence
"must do more than create a suspicion of the existence
of the fact to be established. . . . [I]t must be enough to
justify, if the trial were to a jury, a refusal to direct a
verdict when the conclusion sought to be drawn from it is one
of fact for the jury." LeMaster v. Sec'y of
Health & Human Servs., 802 F.2d 839, 840 (6th Cir.
1986) (quoting N.L.R.B. v. Columbian Enameling and
Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed.
determining "whether there is substantial evidence in
the record ... we review the evidence in the record taken as
a whole." Wilcox v. Sullivan, 917 F.2d 272,
276-77 (6th Cir. 1980) (citing Allen, v. Califano,
613 F.2d 139, 145 (6th Cir. 1980)). However, the Court
"may not try the case de novo[;] nor resolve
conflicts in evidence[;] nor decide questions of
credibility." Jordan v. Comm'rof Soc. Sec,
548 F.3d 417, 422 (6th Cir. 2008) (quoting Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984)). "The
findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial
evidence to support a different conclusion." Buxton
v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Rather, if
the Commissioner's decision "is supported by
substantial evidence, then we must affirm the
[Commissioner's] decision[, ] even though as triers of
fact we might have arrived at a different result."
Elkins v. Sec'y of Health and Human Servs., 658
F.2d 437, 439 (6th Cir. 1981) (citing Moore v.
Califano, 633 F.3d 727, 729 (6th Cir. 1980)).
addition to the foregoing, in ruling as aforesaid, this Court
makes the following, non-exclusive, observations:
parties agree that the dispositive issue in this case is
whether, at the time of the ALJ's decision, Plaintiff met
or equaled the "Intellectual Disorder" impairment
detailed in 20 C.F.R. Pt. 404 Subpt. P App'x 1 Listing
("Listing") 12.05. At the time of Plaintiffs
disability application and at the time of the ALJ's
decision, Listing 12.05C was in effect. A claimant would meet
or equal Listing 12.05C, and be found disabled, if she has
"significantly subaverage general intellectual
functioning with deficits in adaptive functioning manifested
. . . before age 22[, and 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'x 1 Listing 12.05C. However, as of January
17, 2017, a new Listing 12.05 became effective that
eliminated Listing 12.05C, and applies to any claim remanded
for further proceedings. Soc. Sec. Admin., Revised
Criteria for Evaluating Mental Disorders, 81 Fed. Reg.
66138 n.1 (Sept. 26, 2016). Thus, if Plaintiff's claim
were to be remanded for further proceedings, rather than an
award of benefits, then Plaintiff's claim would be
evaluated as to whether she meets or equals the new Listing
her Report and Recommendations, the Magistrate Judge noted
that Mary Ann Jones, Ph.D., Plaintiff's treating
psychologist, assessed a full-range intelligence quotient
("IQ") score of 66, which is classified as the mild
range of intellectual disability. Doc. #6-7, PAGEID #431. The
ALJ rejected the IQ score because other evidence of record
showed higher functioning than what would be suggested by the
IQ score, and Dr. Jones did not diagnose her with mental
disability or borderline intellectual functioning. Thus, the
ALJ reasoned, the low IQ score "appeared to be the
result of the Plaintiff's attempt to present herself as
less capable than she actually is." Doc. #12, PAGEID
#845 (citing Doc. #6-2, PAGEID #45-47; Doc. #6-7, PAGEID
#428, 431, 689, 715; Doc. #11, PAGEID #837; Daniels v.
Comm'r of Soc. Sec, No. 02-3224, 70 F.App'x 868,
872 (6th Cir. 2003)). The Commissioner, in asking the Court
to affirm the ALJ's decision, would have the Court
elevate form above substance. As Plaintiff notes, Dr. Jones
used the phrase "mental retardation" to define
Plaintiff's intellectual functioning on four separate
occasions in her treatment of Plaintiff. Doc. #13, PAGEID
#856-57 (citing Doc. #6-7, PAGEID #431, 477). Further, it is
well-settled in the Sixth Circuit that a specific diagnosis
of intellectual disability is neither necessary nor
sufficient for a disability claimant to meet or equal Listing
12.05C; i.e., "mental retardation" are not
magic words required for a finding of disability. Doc. #11,
PAGEID #836 (citing Wilkerson v. Comm'r of Soc.
Sec, No. 3:08-cv-419, 2010 WL 817307, at *13 (S.D. Ohio
Mar. 5, 2010) (Ovington, Mag. J.)).
the ALJ's conclusion that the IQ score assessed by Dr.
Jones was inconsistent with other evidence of record, Doc.
#6-2, PAGEID #47, is belied by the very evidence upon which
the ALJ purports to rely. As the Magistrate Judge noted,
Bonnie Katz, Ph.D., the Commissioner's reviewing
psychologist, concluded that Plaintiff had marked limitations
in her abilities "to understand, remember, and carry out
detailed instructions!, ]" Doc. #11, PAGEID #831 (citing
Doc. #6-3, PAGEID #119), and "to interact with the
general public." Id. (citing Doc. #6-3, PAGEID
#120). Paul Tangeman, Ph.D., another of the
Commissioner's reviewing psychologists, "reviewed
Plaintiff's records and agreed with Dr. Katz's
findings." Id. (citing Doc. #6-3, PAGEID
#125-37). The internal consistency and external validity of
Dr. Jones's opinion mean that it is entitled to
controlling weight, 20 C.F.R. § 404.1527(c)(2), and the
IQ score assessed by Dr. Jones is valid.
Contrary to the Commissioner's argument, Doc. #12, PAGEID
#846, the evidence of record compels the conclusion that
Plaintiff had significant deficits in adaptive functioning
before the age of 22. She had a psychological evaluation at
the age of five due to behavior difficulties, non-compliance,
and acting out sexually. Doc. #6-7, PAGIED #486. Throughout
her education, she struggled to get along with other
students, and her standardized test scores revealed that she
was performing well below her age level. Doc. #6-6, PAGEID
#341, 346413-14; Doc. #6-7, PAGEID #591-92.
marked limitations opined by Drs. Katz and Tangeman discussed
above, along with the ALJ's findings at step two that
Plaintiff's polysubstance abuse disorder,
substance-induced mood disorder, and learning or attention
deficit disorder constituted substantial impairments, Doc.
#6-2, PAGEID #43, constitute significant limitations on
Plaintiff's "physical or mental ability to do basic
work activities[.]" 20 C.F.R. Pt. 404, Subpt.
P.r App'x 1 § 12.00A. Accordingly,
Plaintiff met or equaled all the elements for Listing 12.05C,
and the ALJ was required to find her disabled at step three.
Doc. #6-2, PAGE ID #44.
light of the required finding of disability, it would be
grossly inequitable to remand the case for further
proceedings under the modified Listing 12.05, which
eliminates Listing 12.05(C).
based upon the aforesaid, this Court adopts in their entirety
the Report and Recommendations of the United States
Magistrate Judge, Doc. #11, and overrules the Defendant
Commissioner's Objections to said judicial filing. Doc.
#12. Judgment shall enter in favor of Plaintiff and against
the Defendant Commissioner, reversing the decision of the
Defendant Commissioner that Plaintiff was not disabled and,
therefore, not entitled to benefits under the Act as
unsupported by substantial ...