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Graham v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

July 20, 2018

ALMA J. GRAHAM, Plaintiff,



          Elizabeth A. Preston Deavers Chief United States Magistrate Judge

         Plaintiff, Alma J. Graham, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Social Security Supplemental Security Income benefits (“SSI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 12), (“SOE”), the Commissioner's Memorandum in Opposition (ECF No. 17), Plaintiff's Reply (ECF No. 18), and the administrative record (ECF No. 11). For the reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff protectively filed her application for benefits in January 2014, alleging that she has been disabled since April 1, 2011, due to being a slow learner, learning problems; she can't remember; has difficulty reading; mental health problems; and back pain. (R. at 193-99, 226.) Plaintiff's application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. (R. at 135-37.) Administrative Law Judge Jason C. Earnhart (“ALJ”) held a hearing on May 9, 2016, at which Plaintiff, who was represented by counsel, appeared and testified.[1] (R. at 37-73.) A vocational expert also appeared and testified at the hearing. (R. at 73-82.) On June 21, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 14-28.) On June 21, 2017, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-5.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony

         At the administrative hearing, Plaintiff testified that she had been married for 9 years and was raising her 8-year-old son and has an older son who lived down the road with her mother. (R. at 38.) Her husband drove her to the hearing but she did not know how long it took to drive there or from which direction. (R. at 39.) She obtained her drivers' license by taking the audio version of the driver's test. (R. at 40.) Plaintiff did acknowledge that she received social security benefits as a child but her mother forgot to “re-verify” and she lost her benefits. (R. at 42.) She testified as to sharing photos and checking her Facebook account with 150 friends. (Id.) She also plays games on her phone to help with stress and anxiety. (R. at 43.)

         Plaintiff testified that she last worked at Wal-Mart. She quit after she gave a customer too much change noting, she has trouble counting money. (R. at 44.) She said the lady came back with an extra twenty-dollar bill and she quit because she was afraid she would be in trouble. (R. at 46.)

         A discussion was held as to the different part-time and short-term jobs Plaintiff held. (R. at 47-53.) She acknowledged that in the last 15 years she had not held a full time job. (R. at 53.) All of her jobs have been part time because “That's the only thing I can try to get.” (R. at 54.) Plaintiff testified to being “too slow” at many of her jobs, which she explained was why she quit. She testified that she does not believe she has ever been fired from a job. (R. at 55.) She admitted at the hearing that she is continuing to look for work that is simple. (R. at 56.) Her husband helps her fill out the job applications. (Id.)

         When discussing her activities of daily living, Plaintiff testified that “I always want to sleep. I'm always stressed and anxiety….” (R. at 57.) She testified that she is able to cook things such as spaghetti, oven meals and eggs. (Id.) She also reported watching television including “Forensic Files” but she has problems understanding the crime solving shows, but “it's something to watch.” (R. at 58.)

         Plaintiff testified that she did not graduate from high school, and that she was enrolled in special education classes. (R. at 59-60.) Plaintiff testified that she did try to obtain her GED noting, “They said they could tutor me and just by looking at it - - you know, it's not that I didn't want to try, it's just I knew I wouldn't be able to pass it.” (R. at 60-61.) Plaintiff denied the ability to engage in multiplication of numbers, but indicated she can add and subtract, although “there are sometimes I have to use a calculator.” (R. at 61-62.)

         B. Vocational Expert Testimony

         George W. Coleman III testified as the vocational expert (“VE”) at the administrative hearing. (R. at 73-82.) Because Plaintiff does not challenge the ALJ's findings with respect to her residual functional capacity (“RFC”), the VE's testimony is not relevant or necessary to the Court's analysis of Plaintiff's Statement of Errors.[2]


         A. Miami Trace Local Schools

         Ninth grade proficiency test results from March 2001, when Plaintiff attended the 10th grade show that she failed all four subjects tested. (R. at 280.)

         As part of the Evaluation Team Report in December 2004, when Plaintiff was 20 years old, her general intelligence was assessed. Paula Dean, the work study coordinator for the school district noted that Plaintiff's “ability measures have been consistently in the borderline range on previous measures.” Plaintiff underwent the Stanford - Binet IQ test during in October 1994 which resulted in the composite score of 72; and again in January 1997, with a composite score of 73. It was also noted that Plaintiff's verbal and performance skills are similar. She withdrew from school during the 2001-2002 school year, and re-entered in August 2004. Her reading and writing skills were below the 3rd grade level and math was at a fourth grade level on her last Individualized Education Program (“IEP”). Upon re-entering school, Plaintiff participated in the full day special education work study program to earn credits to graduate. She has received specialized resource room instruction since the first grade on all subjects. (R. at 285.)

         Also as part of the Evaluation Team Report, Plaintiff's adaptive behavior was assessed. Ms. Dean reported that that Plaintiff cared for her personal needs independently, but required assistance with handling money. Plaintiff performed some basic household chores, but needed step-by-step “verbal instructions for complex tasks, with repetitions, as she is easily overwhelmed by multiple steps/directions.” (R. at 286.)

         The evaluation team concluded that Plaintiff was eligible for services under the disability determination of “Cognitive Disability.” They determined that “[Plaintiff] displays significantly subaverage intellectual functioning and adaptive behavior skills, which adversely affect her educational performance. Achievement in many grades below grade level.” (R. at 287.)

         Plaintiff's IEP effective for Plaintiff's 11th/12th grade school year 2004-2005 noted Plaintiff was in the work study program and working on job development to earn enough credits to receive her diploma. (R. at 288-93.)

         B. Consultative examination: Taylor S. Groneck, Psy.D.

         On March 1, 2014, Dr. Groneck evaluated Plaintiff for disability purposes. (R. at 298-306.) Plaintiff reported that she quit school in the 11th grade “because people was making fun of me because I was in slow learning classes. I had a very hard time in school. My teachers let me slide a lot.” (R. at 299.) She also reported that she suffers from depression but was not receiving treatment at the time of the evaluation. (R. at 300.) She reports she has “problems getting motivated, ” experiences panic attacks and occasional crying. (Id.) She noted the longest she has been employed was six months, she quit due to an argument with her manager, she was fired from another job for being too slow and quit another job in a candle factory noting it “too hot in there.” (Id.) Plaintiff reported that she is capable of grocery shopping on a monthly basis, but that her husband helps her pay bills due to ...

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