UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASMINE NOBLE,

Plaintiff,

v. CASE NO. 14-12588

CAROLYN W. COLVIN DISTRICT JUDGE GEORGE CARAM STEEH

Commissioner of Social Security, MAGISTRATE JUDGE PATRICIA T. MORRIS

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION1

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence does 

not support the Commissioner’s determination that Plaintiff is not disabled. Accordingly, 

IT IS RECOMMENDED that Plaintiff’s Motion for Summary Judgment be 

GRANTED, that Defendant’s Motion for Summary Judgment DENIED, and that the 

case be remanded to the Commissioner for further proceedings under sentence four of 42 

U.S.C. § 405(g).

1 The format and style of this Report and Recommendation are intended to comply with the requirements 

of the E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), Fed. R. Civ. P. 

5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the 

Administrative Office of the United States Courts found at: http://www.uscourts.gov/RulesAndPolicies/

JudiciaryPrivacyPolicy/March2008RevisedPolicy.aspx. This Report and Recommendation only addresses 

the matters at issue in this case and is not intended for publication in an official reporter or to serve as 

precedent.

 

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II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to this magistrate judge for the purpose of reviewing the 

Commissioner’s decision denying Plaintiff’s claim for Supplemental Security Income 

(“SSI”) under Title XVI, 42 U.S.C. § 1381 et seq. The matter is currently before the 

Court on cross-motions for summary judgment. (Docs. 13, 15.)

Plaintiff Jasmine Noble was twenty-four years old when she applied for benefits 

on October 14, 2011, alleging that she became disabled on January 1, 1997. (Transcript, 

Doc. 10 at 134.) At the initial administrative stage, the Commissioner considered whether 

she was disabled due to affective disorders and intellectual disability.

2 (Tr. at 77.) None 

of the impairments, alone or combined with others, was found to be disabling. (Id.) 

Plaintiff asked for a hearing in front of an Administrative Law Judge (“ALJ”), who 

would consider the application de novo. (Tr. at 82-85.) 

ALJ Tammy Thames convened the hearing on November 28, 2012. (Tr. at 34-64.) 

In her decision issued on February 15, 2013, the ALJ found that Plaintiff was not 

disabled. (Tr. at 11-23.) The ALJ’s decision became the Commissioner’s final decision, 

see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on May 9, 

2 Cognizant of the negative connotations attached to the term “mental retardation” and in light of federal 

legislation in related areas, in 2013 the Commissioner replaced the term “mental retardation” with 

“intellectual disability” in the regulation at issue here. Change in Terminology: “Mental Retardation” to 

“Intellectual Disability”, 78 Fed. Reg. 46,499 (Aug. 1, 2013) (codified at 20 C.F.R. pt. 404, subpt P, app. 

1). The change in terminology did not reflect any substantive change. Id. at 46,500-01; see also Hickel v. 

Comm’r of Soc. Sec., 539 F. App’x 980, 982 n.2 (11th Cir. 2013). Where possible, this Report follows the 

new terminology. 

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2014, when the Appeals Council denied Plaintiff’s request for review. (Tr. at 1-3.) On 

July 7, 2014, Plaintiff filed the instant suit seeking judicial review of the Commissioner’s 

unfavorable decision. (Doc. 1.)

B. Standard of Review

Applicants for Social Security benefits go through a two-tiered structure in which 

the administrative agency handles claims and the judiciary merely reviews the factual 

determinations to ensure they are supported by substantial evidence. 42 U.S.C. § 405(g); 

Richardson v. Perales, 402 U.S. 389, 390 (1971). The administrative process provides 

multiple opportunities for reviewing the state agency’s initial determination. The Plaintiff 

can first appeal the decision to the Social Security Agency, then to an ALJ, and finally to 

the Appeals Council. Bowen v. Yuckert, 482 U.S. 137, 142 (1987). Once this 

administrative process is complete, an unsuccessful claimant may file an action in federal 

district court. Sullivan v. Zebley, 493 U.S. 521, 524-28 (1990), superseded by statute on 

other grounds, Personal Responsibility and Work Opportunity Reconciliation Act of 

1996, Pub. L. No. 104-193, 110 Stat. 2105; Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir. 

1986) (en banc).

This Court has original jurisdiction under 42 U.S.C. § 405(g) to review the 

Commissioner’s final administrative decision. The statute limits the scope of judicial 

review, requiring the Court to “‘affirm the Commissioner’s conclusions absent a 

determination that the Commissioner has failed to apply the correct legal standards or has 

made findings of fact unsupported by substantial evidence in the record.’” Longworth v. 

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Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (quoting Warner v. Comm’r of 

Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). See also Walters v. Comm’r of Soc. Sec., 

127 F.3d 525, 528 (6th Cir. 1997). The court’s review of the decision for substantial 

evidence does not permit it to “‘try the case de novo, resolve conflicts in evidence, or 

decide questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th 

Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). See also 

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility 

of witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 

234, 247 (6th Cir. 2007). See also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th 

Cir. 2007) (noting that the “ALJ’s credibility determinations about the claimant are to be 

given great weight, ‘particularly since the ALJ is charged with observing the claimant’s 

demeanor and credibility’” (quoting Walters, 127 F.3d at 531 (“Discounting credibility to 

a certain degree is appropriate where an ALJ finds contradictions among medical reports, 

claimant’s testimony, and other evidence.”))); Jones v. Comm’r of Soc. Sec., 336 F.3d 

469, 475 (6th Cir. 2003) (“[A]n ALJ is not required to accept a claimant’s subjective 

complaints and may . . . consider the credibility of a claimant when making a 

determination of disability.”). “However, the ALJ is not free to make credibility 

determinations based solely on an ‘intangible or intuitive notion about an individual’s 

credibility.’” Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186, at *4).

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The Commissioner’s findings of fact are conclusive if supported by substantial 

evidence. 42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner’s 

decision merely because it disagrees or because “‘there exists in the record substantial 

evidence to support a different conclusion.’” McClanahan v. Comm’r of Soc. Sec., 474 

F.3d 830, 833 (6th Cir. 2006) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 

2001)). See also Mullen, 800 F.2d at 545. The court can only review the record before the 

ALJ. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). 

Substantial evidence is “more than a scintilla of evidence but less than a preponderance; 

it is such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). 

See also Jones, 336 F.3d at 475. “[T]he . . . standard is met if a ‘reasonable mind might 

accept the relevant evidence as adequate to support a conclusion.’” Longworth, 402 F.3d 

at 595 (quoting Warner, 375 F.3d at 390). “The substantial evidence standard 

presupposes that there is a ‘“zone of choice”’ within which the Commissioner may 

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th 

Cir. 1994) (citations omitted) (quoting Mullen, 800 F.2d at 545).

A court’s review of the Commissioner’s factual findings for substantial evidence

must consider the evidence in the record as a whole, including that evidence which might 

subtract from its weight. Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 

(6th Cir. 1992). “Both the court of appeals and the district court may look to any evidence 

in the record, regardless of whether it has been cited by the Appeals Council.” Heston v. 

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Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, 

however, that either the ALJ or the reviewing court discuss every piece of evidence in the 

administrative record. Van Der Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 526 (6th 

Cir. 2006); Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) 

(“‘[A]n ALJ can consider all the evidence without directly addressing in his written 

decision every piece of evidence submitted by a party.’” (quoting Loral Defense SystemsAkron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999))).

C. Governing Law

“‘The burden lies with the claimant to prove that she is disabled.’” Ferguson v. 

Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010) (quoting Foster, 279 F.3d at 

353). Accord Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 

1994)). There are several benefits programs under the Act, including the DIB program of 

Title II, 42 U.S.C. §§ 401-34, and the Supplemental Security Income (“SSI”) program of 

Title XVI, 42 U.S.C. §§ 1381-85. Title II benefits are available to qualifying wage 

earners who become disabled prior to the expiration of their insured status; Title XVI 

benefits are available to poverty-stricken adults and children who become disabled. F. 

Bloch, Federal Disability Law and Practice § 1.1 (1984). While the two programs have 

different eligibility requirements, “DIB and SSI are available only for those who have a 

‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means 

inability

to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to 

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result in death or which has lasted or can be expected to last for a 

continuous period of not less than [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Commissioner’s regulations provide that disability is to be determined 

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful 

activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or 

combination of impairments that “significantly limits . . . physical or mental 

ability to do basic work activities,” benefits are denied without further 

analysis.

Step Three: If the claimant is not performing substantial gainful activity, 

has a severe impairment that is expected to last for at least twelve months, 

and the severe impairment meets or equals one of the impairments listed in 

the regulations, the claimant is conclusively presumed to be disabled 

regardless of age, education or work experience.

Step Four: If the claimant is able to perform his or her past relevant work, 

benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past relevant 

work, if other work exists in the national economy that plaintiff can 

perform, in view of his or her age, education, and work experience, benefits 

are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston, 245 F.3d at 534. “If the Commissioner 

makes a dispositive finding at any point in the five-step process, the review terminates.” 

Colvin, 475 F.3d at 730.

“Through step four, the claimant bears the burden of proving the existence and 

severity of limitations caused by her impairments and the fact that she is precluded from 

performing her past relevant work.” Jones, 336 F.3d at 474. See also Cruse, 502 F.3d at 

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540. The burden transfers to the Commissioner if the analysis reaches the fifth step 

without a finding that the claimant is not disabled. Combs v. Comm’r of Soc. Sec., 459 

F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show 

that “other jobs in significant numbers exist in the national economy that [the claimant] 

could perform given her RFC [residual functional capacity] and considering relevant 

vocational factors.” Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

The ALJ found at step one that Plaintiff had not engaged in substantial gainful 

activity since the application date. (Tr. at 13.) At step two, the ALJ concluded Plaintiff 

had the following severe impairments: “depressive disorder not otherwise specified 

(NOS), learning disorder NOS, mild mental retardation, and bipolar disorder.” (Id.) At 

step three, the ALJ found that Plaintiff’s combination of impairments did not meet or 

equal one of the listings in the regulations. (Id. at 13-16.) The ALJ then found that 

Plaintiff had the residual functional capacity (“RFC”) to perform a limited range of work 

at all exertional levels. (Tr. at 17-21.) No step-four analysis was necessary, as Plaintiff 

had no past relevant work. (Tr. at 21.) Finally, at the last step, the ALJ found that a 

significant number of jobs existed suitable to Plaintiff’s limitations. (Tr. 22.)

E. Administrative Record

1. Medical Evidence

School records from the fall of 1997, when Plaintiff was in the fifth grade, indicate 

she was placed in an individualized educational program due to her learning disability. 

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(Tr. at 219.) Her behavior frequently disrupted the classroom, but the instructors could 

not determine “whether [the] child’s difficulty is centered around academics since she 

also is have difficulty at home w[ith] siblings.” (Tr. at 221.) Yet her reading 

comprehension, vocabulary, and ability to answer questions were flagged as problematic. 

(Tr. at 222.) The team report recommending this course of action noted many pertinent 

findings. (Tr. at 225.) First, there were no “[e]ducationally relevant medical findings”

made during the investigation. (Id.) Reading comprehension was the only learning area in 

which she displayed a “severe discrepancy between achievement and ability,” and this 

discrepancy did not “primarily” result from “mental retardation” or “emotional 

disturbance.” (Id.) Rather, it arose from “[t]he effects of environmental, cultural and 

economic differences,” which constituted “the primary cause of the student’s problem.”

(Id.) In conclusion, she was “eligible” for the program because she had a “[s]pecific 

[l]earning [d]isability.” (Id.)

The findings included a “[p]sychoeducational” report completed by Dr. Michaele 

Jaime, Ed.D., the school psychologist. (Tr. at 227.) At the end of the previous school 

year, Plaintiff’s teacher referred her for the program due to her “poor academic progress 

in the areas of written expression and mathematics.” (Tr. at 227, 237, 239-42.) Her 

siblings had not experienced similar problems, according to her mother, and though shy, 

Plaintiff generally “gets along well” with friends until “she doesn’t get her way,” at 

which point she displayed her anger in unhealthy manners. (Id.) Her attendance was poor

over the previous year, the teacher reported. (Tr. at 227, 236.) During testing with Dr. 

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Jaime she was cooperative and friendly, but not spontaneous; she demonstrated poor 

attention and problem solving skills; and frequently she failed to “respond at all.” (Tr. at 

229.) Observing her in the classroom, Dr. Jaime noted that while she did not disrupt the 

class, she did not participate and often needed assistance from the teacher or peers to 

complete tasks. (Id.)

On the Wechsler Intelligence Scale, Plaintiff scored an 84 on verbal, 54 on 

performance, and earned a full scale score of 67. (Tr. at 230.) These scores “fell within 

the borderline range” of cognitive functioning. (Tr. at 231.) Plaintiff’s fourth grade 

teacher offered various observations implicating her affective and adaptive performance: 

Plaintiff was erratic, did not “mix well,” avoided others, displayed frequent mood 

changes, did not finish tasks, and reluctantly answered questions. (Tr. at 232, 240.) 

Overall, Dr. Jaime recommended that Plaintiff enter the special education program. (Tr. 

at 233.)

The school staff reviewed Plaintiff’s progress in the second half of the year, 

deciding not to hold her back from the sixth grade. (Tr. at 245.) She was relating well 

with her peers, respectful to teachers, and willing to learn, and accordingly the staff felt 

that “no behavioral intervention plan is necessary.” (Tr. at 245-46.) Nonetheless, they 

concluded that both the general academic classes and the special education classes were 

“too demanding,” and instead she would “be in the special education setting—the general 

curriculum will be followed at [her] level of functioning.” (Tr. at 246.) The report notes 

that despite making progress, Plaintiff continued to struggle in reading comprehension 

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and maintaining appropriate behavior, particularly in checking her temper. (Tr. at 249-

51.)

The next report comes from Plaintiff’s seventh-grade year, in the fall of 1999. (Tr. 

at 254.) Absences and tardiness were continuing issues. (Id.) She still needed special 

education classes, but only part time, and she participated in the same “activities and nonelective classes as regular education students.” (Tr. at 255.) Her teachers noted that she 

was completing work, or at least attempting to, and was failing in one class while earning 

two B’s and a C in the others. (Tr. at 259.) She wrote at the fourth-grade level and 

struggled with reading comprehension. (Tr. at 260, 262.) In mathematics, she could add 

and subtract but had difficulty multiplying and dividing. (Tr. at 263.) Targeted 

improvements included prompt attendance, completion of all school work, and 

cooperation with adults. (Tr. at 264.)

Plaintiff stayed in the program during her eighth-grade year, as full-time 

participation in the regular educational program was still “too demanding” and the “fulltime” special education program “too restrictive.” (Tr. at 267-68.) She spent four periods 

per day in the individualized special program and the other two periods in the general 

education program. (Id.) Transition planning for graduation was also considered, and the 

school placed her in the “Regular Diploma Program” rather than the “Special Education 

Alternate Strategy Program.” (Tr. at 270.) Behavioral improvements remained necessary, 

particularly in completing tasks. (Tr. at 271.) Her written work remained substandard. 

(Tr. at 272.) At the annual review in the spring of 2000 the school recommended she 

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remain in the special education program part-time, at the same level as before. (Tr. at 

277.) However, her behavioral issues were such that, while improving, she still failed to 

turn in work and still had attendance issues; consequently the social worker 

recommended continuing services for Plaintiff. (Tr. at 279, 281.) In mathematics, she 

tested at the third-grade level. (Tr. at 280.)

A team report in September 2000 provided an extensive reevaluation of Plaintiff’s 

learning disability. (Tr. at 285.) It again noted the “severe discrepancy between [her] 

achievement and [her] intellectual ability” in both written expression and mathematics.

(Id.) And again it found that “mental retardation” and emotional disturbance were not the 

primary causes of this discrepancy; unlike before, however, the team also rejected 

“environmental, cultural or economic differences” as the “primary cause of the student’s 

problem.” (Id.)

For the report, a school psychologist, Dr. T. Michael Knack, Ph.D., examined and

tested Plaintiff. (Tr. at 287.) He noted that her grades had improved during seventh grade, 

beginning with C’s, D’s, and E’s, but ending with one A, five C’s, and one E. (Id.) She 

related “adequately with her teachers” and “‘o.k. with the other students.” (Id.) Her 

teachers noted that she appeared withdrawn in class, not answering oral questions and 

struggling to understand written questions. (Id.) They also reported that she remained 

quiet, had “fair” relationships with her peers, and needed close monitoring. (Tr. at 289, 

293-95.)

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On the Weschler Intelligence Scale she scored 89 in verbal and 79 in performance, 

for a full scale score of 83. (Tr. at 288.) Analyzing the test, Dr. Knack observed that the 

verbal skills were in the “low average range,” the non-verbal skills were in the 

“borderline range,” and the overall skills were in the “low average range.” (Id.) He 

believed that her previous test, with much lower scores in performance and full scale, 

“was probably a very low estimate of her Performance abilities.” (Tr. at 289.) Her 

reading skills had progressed and now registered at the 4.4 to 5.5 grade level, her 

mathematical skills were at the 4.7 to 6.3 grade level, her written expression scores 

ranged from the 3.3 to the 5.6 grade level, and her psychomotor development was in the 

borderline range. (Id.) Dr. Knack recommended she continue in the program with 

possible modifications if she demonstrated more ability to “work independently, 

complete her work, and turn in her assignments.” (Tr. at 289-90.)

In 2002, while in the ninth grade, Plaintiff had a child and later returned to school. 

(Tr. at 433.) At the time, she lived with her siblings and her mother, who “helps a lot with 

the baby especially when she is in school.” (Id.) The father also participated in childcare. 

(Tr. at 438.) Her goals were to attend college and become a registered nurse. (Tr. at 433.) 

In January 2004, she told her doctor that she was in the tenth grade. (Tr. at 451.) Later 

that year, in April 2004, she reported that she was taking GED classes and “doing well.” 

(Tr. at 431.)

The next report in the record comes from a consultative examination with Dr. 

Mark Zaroff, Ph.D., in 2005, apparently related to a prior application for disability 

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benefits.3 Asked why she sought benefits, she replied, “I have a temper and stuff like 

that,” and “[p]eople aggravate me.” (Tr. at 300.) She explained her history of learning 

problems, particularly with mathematics, but “denied any functional deficits and stated 

she is able to count money and use math in daily life adequately.” (Id.) In school her 

typical grades were C’s, and she dropped out after becoming pregnant in the ninth grade, 

though she recently began taking GED classes. (Tr. at 301.) While she denied any 

criminal history, Dr. Zaroff noted that her file indicated she spent three days in jail for 

domestic violence against her parents. (Id.) Currently, she lived with her mother, threeyear old son, and twelve-year old sister, maintaining “okay” relationships with her 

family. (Id.) Her few friends were not “close.” (Id.) During a typical day she dressed her 

son, fixed him breakfast, spent time playing with him, then attended GED classes while 

her mother took care of her son. (Id.) At night she watched television, studied, and put 

her son to bed. (Id.) She claimed to cook all of her own meals and that she could “take 

care of money I make,” though she denied earning any. (Id.)

In the examination, Dr. Zaroff noted that she had appropriate contact with reality 

and organized mental activity, was “marginally cooperative,” and had “no problems . . . 

with self-esteem, motor activity, or degree of autonomy.” (Tr. at 302.) She denied 

delusions and suicidal ideations. (Id.) During the intelligence testing she “exhibited 

3 The administrative record presents very little information on her previous applications. The initial denial 

in this case referenced a claim filed in 2010 and closed in 2011, which ended at the initial level. (Tr. at 

67.) One of the consultative examiners mentioned that the current claim was Plaintiff’s fifth. (Tr. at 558.) 

Yet nothing indicates that there are prior ALJ determinations or any other decision implicating res 

judicata. See Error! Main Document Only.Error! Main Document Only.AR 98-4(6), 1998 WL 

283902, at *3 (acquiescing to Drummond v. Comm’r, 126 F.3d 837 (6th Cir. 1997)).

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limited interest and poor motivation,” leading Dr. Zaroff to conclude that the resulting 

scores were “a valid but minimal estimate of her abilities.” (Tr. at 303.) On the Wechsler 

Intelligence Scale she scored 71 on verbal, 64 on performance, and her full scale score 

was 65. (Id.) This last score placed her at “the first percentile in the extremely low range 

of functioning.” (Tr. at 303-04.) Plaintiff struggled counting backwards by three, but 

knew the present president and his predecessor, named five large cities, and cited recent 

shootings as a current event. (Tr. at 302-03.)

Included in Dr. Zaroff’s report were summaries of reports from other sources: 

Plaintiff’s mother denied that Plaintiff was responsible with money; Plaintiff was referred 

to outpatient psychiatric therapy after her arrest; and another IQ test from 2001 found a 

full scale score of 69. (Tr. at 304.) Dr. Zaroff diagnosed “Mild Mental Retardation” and 

concluded that Plaintiff could not manage her benefit funds. (Tr. at 305.)

Various reports relating to her physical health also appear in the record. Relevant 

here are her denials of depression made in 2006 during a perinatal appointment and again 

in an emergency room visit. (Tr. at 362, 391.) During another session, in June 2008, she 

told the examiner that she lived “at home with her two kids, one and five years old,” both 

from the same father, who lived elsewhere. (Tr. at 399.) Dr. Vinod Thomas, M.D., 

examined Plaintiff in October 2009 concerning chest pain, the notes from the visit 

indicating that Plaintiff was “[n]egative for depression,” insomnia, and other psychiatric 

issues. (Tr. at 511.) Her mood, affect, and behavior were normal. (Tr. at 512.) Her March 

2010 visit similarly failed to flag any psychiatric problems, with her mood, affect, 

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behavior, judgment, and thought content all “normal.” (Tr. at 518.) She saw him again in 

October 2010, this time complaining of depression without suicidal ideation, 

hallucinations, memory loss, or anxiety; the doctor prescribed an antidepressant. (Tr. at 

492-95, 520, 570.) She said the symptoms had persisted for the prior six to eight months. 

(Tr. at 520.) Nonetheless, her mood, affect, behavior, judgment, and thought content all 

appeared normal. (Tr. at 521, 570.) A questionnaire she completed scored her at the 

moderate to severe depression level. (Tr. at 572.)

In December 2010 Dr. Bruce Fowler, Psy.D., conducted a consultative 

examination in connection with Plaintiff’s application for benefits. (Tr. at 465.) She 

recalled her learning disabilities in school, saying they covered all subjects and 

particularly affected her reading comprehension and mathematical aptitude. (Id.) She 

complained of depression, which manifested in lethargy, fatigue, insomnia, and 

irritability. (Id.) Her only work experience was from mandatory community service as a 

cleaner at the McNally House, but she claimed “[t]hey got rid of me, saying I wasn’t 

performing right.” (Id.) She was pregnant with her third child. (Id.) She had no history of 

psychiatric hospitalization or mental health services. (Tr. at 466.) Her two children lived 

with her in an apartment; she had “poor” relationships with other family members but 

remained close to her children. (Id.) A typical day included “sitting at home, feeding the 

kids, and looking at walls.” (Id.) Plaintiff said she considered working “someday.” (Tr. at 

467.)

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Dr. Fowler observed that Plaintiff “demonstrated good reality contact” and 

organized but vague speech. (Id.) No indications of delusions or hallucinations were 

apparent to Dr. Fowler, and Plaintiff denied considering suicide, explaining that she had 

only thought about it once. (Id.) “Her mood appeared somewhat flat,” according to the 

report, but she was oriented, “able to perform two digits forward and two backward,” and 

recalled two of three objects after three minutes. (Id.) However, unlike her interview with 

Dr. Zaroff, she could not name any past presidents, thought the current president was 

“Bush,” failed to name any large cities, and could not think of any current events. (Tr. at 

467-68.) Some of her other answers to the same questions varied as well; for example, 

whereas she knew what the phrase “Don’t cry over spilled milk” meant in the 2005 

session, she now claimed not to know. (Tr. at 303, 468.) During the Weschler 

Intelligence test, Dr. Fowler thought “she was quite cavalier in her responses” and 

answered a few questions “very briefly.” (Tr. at 468.) He concluded that her full scale IQ 

score of 50 was “not an accurate measure” of her abilities “because of the nature of her 

response style.” (Tr. at 469.) Her “intellectual abilities are probably well below average,” 

he added. (Id.)

He diagnosed depression, learning disorder, and “[m]ild mental retardation (by 

prior psychological testing).” (Id.) “Her learning disabilities and intellectual limitations 

restrict the types of jobs for which she may be qualified.” (Tr. at 470.) Specifically, she 

was “able to understand and follow only the simplest of directions. She would not be able 

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to do complex tasks or make independent work-related decisions.” (Id.) Finally, she 

could not manage benefit funds. (Id.)

Roughly two months later, she told the doctor overseeing her pregnancy that since 

becoming pregnant she had stopped taking her depression medication and nonetheless 

was “doing well” and did not feel she needed treatment. (Tr. at 489, 499, 524.) Her 

doctor informed her that the psychotropic medications were safe and she could continue 

taking them if necessary. (Tr. at 490, 524.) After delivering the child in July 2011, the 

notes indicate there were “[n]o emotional concerns.” (Tr. at 540.) Four months later, at a 

checkup, she desired to resume the antidepressant but said she was “doing well . . . 

without it.” (Tr. at 543, 570.) The doctor prescribed a low dose with an option to increase 

if necessary. (Id.) The same month, she denied experiencing depression and was found to 

have normal mood and affect. (Tr. at 544.) In December 2011 she again denied 

depression, but continued to request a new prescription for antidepressants. (Tr. at 568.)

A 2012 general report from her physicians listed “depressive disorder” under her medical 

history. (Tr. at 477, 510.) In February she called her doctors requesting a new 

antidepressant, as her current medication was “not working,” and also a recommendation 

for a therapist. (Tr. at 547.)

Plaintiff underwent another consultative psychiatric examination in early 2012, 

this time with Dr. Leon Austin, Ph.D. (Tr. at 558.) She arrived alone, reportedly driving 

“someone else’s car.” (Id.) She explained that her disabilities arose from lifelong learning 

problems and depression. (Id.) The latter, present for seventeen years, resulted in 

19

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“feelings of worthlessness, social isolation, hopelessness about her future, anhedonia, 

decreased concentration, diminished libido, decreased motivation, sleep disturbances, 

irritability, and suicidal ideation every other day,” though she had no plans to commit 

suicide. (Id.) She also reported that she still took an antidepressant and had attended 

mental health therapy twelve years prior. (Id.) All three of her children shared the same 

father, she reported. (Tr. at 558-59.) She again recalled that her lone work experience 

ended after two months because she failed to “do the paperwork right.” (Tr. at 559.) She 

was not close to family and had no friends. (Id.) As she stated in prior examinations, she 

took care of her children during the day and shared responsibility for cooking and 

household chores with her sister. (Id.)

Dr. Austin noticed that her mood was depressed and concluded she did not 

minimize or exaggerate her symptoms. (Id.) “Her thoughts were spontaneous and well 

organized. There were no problems in pattern or content of speech.” (Id.) Plaintiff 

claimed to see and hear “dead people,” including Rosa Parks. (Id.) She correctly named 

five large cities and the current president, but could not name any past presidents; she 

also answered both of the abstract thinking questions that she struggled with in prior 

examinations. (Tr. at 560.) Dr. Austin thought Plaintiff continued to meet the diagnostic 

criteria for depressive disorder and though she seemed articulate and had completed tasks 

such multiplication and division, he retained her diagnosis of “[m]ild [m]ental 

[r]etardation.” (Tr. at 561.) She could not manage her benefit funds. (Id.)

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In April 2012 she was driving when a truck ran through a stop sign and slammed 

into her car. (Tr. at 564, 596.) At the hospital she mentioned her depression and requested 

an increased dosage of her antidepressant, which she had stopped taking in January. (Tr. 

at 565, 579.) She denied hallucinations. (Tr. at 564.) Notes from the following month 

indicate she received a new prescription for antidepressants. (Tr. at 564.)

Another psychiatric evaluation occurred in July 2012 with Dr. C.A.N. Rao, M.D. 

(Tr. at 573, 592.) She described the same symptoms she had expressed to other doctors, 

but added new information: her children all had different fathers, none of whom helped, 

and her parents also failed to assist her. (Id.) She denied suicidal thoughts. (Tr. at 574, 

593.) Dr. Rao observed that she was alert and well-oriented, her thought processes were 

logical and relevant, and she had no acute psychotic symptoms. (Id.) His only diagnosis 

was bipolar disorder, which he planned to treat with medications. (Id.) The following 

month she reported to a physician that her depression was stable. (Tr. at 578.)

At a doctor’s appointment in August 2012, she denied any problems concentrating 

and requested “a letter for community service that states she is able to do whatever is 

required of her.” (Tr. at 577.) The final notes come from therapy sessions in the summer 

and fall of 2012. (Tr. at 608-15.) The notes are sparse. The beginning diagnoses were 

bipolar disorder mixed with psychosis, and Plaintiff reported hearing voices telling her to 

hurt herself. (Tr. at 611-13.) Her irritability and angry outbursts had persisted. (Id.) In the 

last session she denied suicidal thoughts and discussed her “strained relationships” with 

her siblings and parents. (Tr. at 608.)

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2. Application Forms and Administrative Hearing

In October 2010 Plaintiff filled out an Adult Function report as part of her

application. (Tr. at 159-66.) She marked that she lived in an apartment with family. (Tr. 

at 159.) Asked how her illnesses prevented working, she wrote, “I got a mental problem. 

I dont [sic] mess with nobody.” (Id.) During a typical day she got her children dressed for 

school, waited for them to come home, and cooked dinner. (Tr. at 160.) The foods she 

prepared, which took her “all day,” included sandwiches, frozen dinners, and meals she 

baked. (Tr. at 161.) She marked that she did not take care of any dependents, such as 

children, yet she said that unnamed others helped her take care of her children by 

washing her clothes or sometimes cooking. (Tr. at 160.) Depression disrupted her sleep 

and sometimes it stopped her from bathing or dressing. (Id.) She needed reminders about 

personal care and her medicine. (Tr. at 161.) She wrote that she did no chores, but then 

answered below that she needed encouragement to complete them. (Id.) She could leave 

the house unaccompanied, knew how to drive, and shopped for food and clothes. (Tr. at 

162.) 

The next section asked if she could pay bills, count change, handle a savings 

account, or use a check book. (Id.) Four boxes were provided for checking either “Yes” 

or “No,” and she marked both in all four, writing below, “I don’t know nothing about 

checkbook.” (Id.) She had no hobbies or social activities, and the only place she traveled 

to on a regular basis was her children’s school. (Tr. at 163.) Communicating with others 

was difficult: “I dont like people and they dont like me I have a temper.” (Tr. at 164 [sic 

22

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throughout].) Her impairments affected various abilities, including walking, completing 

tasks, concentrating, understanding, following instructions, and relating to others. (Id.)

Asked how each of these was affected, she wrote, “I dont [f-word] with people.” (Id.) In 

response to another question asking how long she could pay attention, she wrote, “pay 

attention too [sic] what.” (Id.) She “hate[d]” authority figures such as the police and 

teachers and could not handle stress well. (Tr. at 165.) At a volunteer job she was fired 

because she “didnt do the job wright and [she] didnt talk to people didnt follow 

Instructions.” (Id. [sic throughout]) Finally, she heard voices and had “suaside [sic] 

thoughts.” (Tr. at 165-66.)

Her mother filled out a similar form for Plaintiff the following year. (Tr. at 171-

78.) Many of the answers mirror Plaintiff’s. Plaintiff was still living with family in an 

apartment. (Tr. at 171.) Her mother said that Plaintiff took care of her children without 

help. (Tr. at 172.) Plaintiff needed reminders to take medicine and complete other tasks, 

and she did not always attend to her personal care. (Tr.at 172-73.) She cooked and 

washed clothes and dishes but needed encouragement to complete these chores. (Tr. at 

173.) According to her mother, Plaintiff could pay bills and count change, but not handle 

a savings account or use a checkbook. (Tr. at 174.) In the list of activities affected by her 

impairments, Plaintiff’s mother added talking and memory to the items Plaintiff had 

selected, estimated that she could pay attention only for “a few seconds,” and noted that 

Plaintiff struggled with authority figures and could not follow directions, which caused 

her to lose her job. (Tr. at 176-77.)

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At the administrative hearing on November 28, 2012, Plaintiff testified that she 

dropped out of school before finishing the ninth grade and had never attempted to earn a 

GED. (Tr. at 38.) Her only work experience came through the community program called 

Work First that she participated in after dropping out. (Id.) The program provided cash 

assistance and required her to attend classes and fill out paperwork. (Tr. at 39.) She 

remained in the program for “some years,” she stated, but was terminated for incorrectly 

completing the paperwork. (Tr. at 39-40.) Later she recalled that the program lasted for 

only a few months. (Tr. at 53.) She characterized other assignments in the program as 

volunteer work, which included cleaning for a nursing home. (Tr. at 40.)

Her learning disability precluded work, she said, adding that she had applied for 

cashier positions in the past but never received an offer. (Tr. at 43-44.) Despite 

difficulties with the application forms, she was able to complete them by herself, which 

upon reflection she thought might explain why she never got a call back. (Tr. at 44.) She 

was willing to work, she said, and had entered a jobs program through Michigan Works 

but was kicked out for improperly completing the paperwork. (Tr. at 53.) In addition to 

her learning disability, she discussed her depression, stating that she needed reminders to 

take her medication. (Tr. at 55-56.) Other symptoms included aural hallucinations and 

compulsively pulling out her hair. (Id.)

Her family helped raise her children, providing monetary support. (Tr. at 40-41.) 

Her children’s father also was “around sometimes” to help, and although he did not pay 

child support he sometimes purchased necessities. (Tr. at 41.) On a normal morning she 

24

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helped her children with their clothes, but her mother or sister would come over at night 

to help sort the clothes for the week. (Tr. at 44-45.) Her father brought the children to 

school. (Tr. at 45.) Breakfast was at school, so Plaintiff did not cook in the mornings.

(Id.) Her youngest child was not old enough to attend school, and during the day they 

watched television with her father. (Tr. at 45-46.) She was able to register her children for 

school and attend parent-teacher meetings. (Tr. at 51, 52.)

She had lived alone with her children for two years, after moving out of her 

mother’s home. (Tr. at 51.) She sometimes cooked dinner, and sometimes shopped for 

groceries, but her mother needed to prepare the grocery list and someone had to go with 

her. (Tr. at 46-47.) She could shop alone, however (Tr. at 47), and she did no household 

work unless her sister helped. (Tr. at 49.) She never had a checking or savings account 

and the cash assistance she received came through a card she knew how to use, though 

others sometimes helped her with paying bills. (Tr. at 47-48.) Some bills she could pay 

without assistance. (Tr. at 48.) Her mother filled out the paperwork for the other benefits 

she received, including Medicaid and food stamps, among others. (Tr. at 48-49.) She did 

successfully complete the written portion of the driver’s license examination on her 

second attempt. (Tr. at 60.)

The ALJ then asked the vocational expert (“VE”) to

Consider a hypothetical individual of the claimant’s age, having a 

limited education, no past relevant work experience, with the physical 

capacity to perform work at all exertional levels. However, the work 

should consist of simple, routine, repetitive tasks performed in a work 

environment free of fast-paced production requirement, involving only 

simple work-related decisions, and with few if any workplace changes; 

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also limiting the individual to work that involves only occasional 

interaction with the public or coworkers, working best alone or in small, 

familiar groups.

(Tr. at 62.) Could that individual perform work? the ALJ inquired. (Id.) Yes, the VE 

responded, providing the following examples: custodian positions (38,000 in Michigan); 

“some laborer positions” (17,000 in Michigan); and “some dish washer[]” positions 

(8000 in Michigan). (Id.) None of those jobs required the individual to compute or 

calculate numbers. (Id.) Tweaking the hypothetical, the ALJ changed the restrictions so 

that the individual could not remember or carry out “very short and simple instructions,” 

sustain ordinary routines without frequent supervision, work in coordination with others, 

interact with the public, make simple work-related decisions, and would be absent or late 

more than three times per month and off-task over a quarter of the workday. (Tr. at 63.) 

That individual could not perform any work, according to the VE. (Id.)

F. Analysis and Conclusions

1. Legal Standards

The ALJ determined that Plaintiff had the RFC to 

[p]erform a full range of work at all exertional levels but with the following 

nonexertional limitations: the claimant is able to perform simple, routine, 

repetitive tasks. She is limited to working in an environment free of fast-paced 

production requirements with simple work-related decisions, and few, if any 

work place changes. The claimant is limited to no more than occasional 

interaction with the public and coworkers. She would work best alone or in a 

small familiar group.

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(Tr. at 17.) After review of the record, I suggest that the ALJ utilized the proper legal standard 

in his application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. I turn 

next to the consideration of whether substantial evidence supports the ALJ’s decision.

2. Substantial Evidence: Governing Law and Analysis

If the Commissioner’s decision applied the correct legal standards and is supported by 

substantial evidence, the decision must be affirmed even if this Court would have decided the 

matter differently and even where substantial evidence could justify the opposite conclusion.

42 U.S.C. § 405(g); McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, 

where substantial evidence supports the ALJ’s decision, it must be upheld. In this case, 

Plaintiff argues that she meets or equals listing 12.05(C), and that the ALJ’s decision to the 

contrary was in error.

The ALJ must “consider all evidence” in the record when making a disability decision. 

42 U.S.C. § 423(d)(5)(B); accord 20 C.F.R. §§ 404.1520(a)(3); 416.920(a)(3); Wyatt, 974 F.2d 

at 683. Claimants with severe impairments that meet or equal a listing in the Appendix are 

deemed disabled without further analysis. 20 C.F.R. § 404.1520(a)(4)(iii). Fitting a claimant 

into a listing is dispositive: listed impairments preclude any gainful activity, not just substantial

gainful activity. See Zebley, 493 U.S. at 525; 20 C.F.R. pt. 404, subpt. P, App. 1. Each listing 

specifies “the objective medical and other findings needed to satisfy the criteria of that listing.” 

20 C.F.R. § 404.1525(c). A claimant must satisfy all of the criteria to meet the listing. Id. See 

also Zebley, 493 U.S. at 530 (“An impairment that manifests only some of those criteria, no 

matter how severely, does not qualify.”). Alternatively, medical equivalence to a listing can 

occur in three situations where the claimant fails to meet all of the criteria: 

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(1) the claimant has a listed impairment but does not exhibit the specified 

severity or findings, yet has “other findings” that are “at least of equal medical 

significance” to the criteria; (2) the claimant has a non-listed impairment that 

is at least of equal medical significance” to a listed impairment; or (3) the 

claimant has a combination of impairments which do not individually meet a 

Listed Impairment, but are “at least of equal medical significance” to a listing 

when viewed in totality.

Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 415 n.2 (6th Cir. 2011) (quoting 20 C.F.R. 

§ 404.1526).

The ALJ retains discretion at this stage, and does not need to attach “any special 

significance to the source of a[] [medical] opinion . . . [regarding] whether an impairment 

meets or equals a listing.” 20 C.F.R. § 404.1527(d)(3). This is particularly true for the first part 

of the analysis: “‘[A]n ALJ is capable of reviewing records to determine whether a claimant’s 

ailments meet the Listings . . . .’” Stratton v. Astrue, 987 F. Supp.2d 135, 148 (D. N.H. 2012) 

(quoting Galloway v. Astrue, No. H-07-01646, 2008 WL 8053508, at *5 (S.D. Tex. May 23, 

2008)). The Commissioner, however, has qualified the ALJ’s discretion to decide equivalence, 

noting that “longstanding policy requires that the judgment of a physician (or psychologist) 

designated by the Commissioner on the issue of equivalence on the evidence before the 

administrative law judge or the Appeals Council must be received into the record as expert 

opinion evidence and given appropriate weight.” SSR 96-6p, 1996 WL 374180, at *3. An 

expert’s opinion in a Disability Determination Transmittal Form can satisfy this requirement. 

Hayes v. Comm’r of Soc. Sec., No. 11-14596, 2013 WL 766180, at *9 (E.D. Mich. Feb. 4, 

2014), Report & Recommendation adopted, 2013 WL 773017 (E.D. Mich. Feb. 28, 2013).

The ALJ’s step-three explanation is held to the same standard as the rest of the decision, 

and the ALJ does not need to “spell[] out every consideration that went into the step three 

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determination” or recount every fact discussed elsewhere in the decision. Bledsoe v. Barnhart, 

165 F. App’x 408, 411 (6th Cir. 2006). No particular format is prescribed, and reviewing 

courts will read the decision “as a whole . . . to ensure there is sufficient development of the 

record and explanation . . . .” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (noting that 

the ALJ does not need “to use particular language or adhere to a particular format in 

conducting his analysis”). Nor must the ALJ place the entire analysis underneath the “Listing” 

heading; the court can examine the ALJ’s entire decision to decide whether the step three 

analysis is adequate. See White v. Colvin, No. 4:12-cv-11600, 2013 WL 5212629, at *7 (E.D. 

Mich. Sept. 16, 2013) (citing, 165 F. App’x at 411). The claimant carries the burden of proof at 

step three and therefore, as the Third Circuit has observed, the ALJ’s analysis does not need to 

be extensive if the claimant fails to produce evidence that she meets the Listing. Ballardo v. 

Barnhart, 68 F. App’x 337, 339 (3d Cir. 2003) (finding that a conclusory, single-sentence 

analysis was adequate where the claimant “presented essentially no medical evidence of a 

severe impairment”). 

The Sixth Circuit has held that in order to meet a listed impairment under 12.05, a 

plaintiff must satisfy the diagnostic description or definition as well as the severity 

requirements listed in subsections (A) through (D). 20 C.F.R. § 404.1520, Subpart P, App. 1, 

listing 12.05; Foster, 279 F.3d at 354-55. To satisfy listing 12.05(C), a claimant must show 

that (1) he experiences significantly subaverage general intellectual functioning with deficits in 

adaptive functioning that initially manifested during the developmental period (i.e., before the 

age of twenty-two); (2) he has a verbal, performance, or full scale IQ of 60 through 70; and (3) 

he suffers from a physical or other mental impairment imposing an additional and significant 

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work-related limitation on function. Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 491 

(6th Cir. 2010). The first prong is called the “diagnostic description,” and applies to all of 

Listing 12.05's alternative requirements. Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450, 

452 (6th Cir. 2007).4

The necessary severity of the adaptive functioning deficits is not specified in the 

regulations. McCellan v. Comm’r, 804 F. Supp. 2d 678, 694 & n.12 (E.D. Tenn. 2011). It is 

clear, however, that IQ scores alone are insufficient to satisfy Listing 12.05(C). Blanton v. Soc. 

Sec. Admin., 118 F. App’x 3, 7 (6th Cir. 2004) (“[T]wo IQ scores of 70, without more, do[] not 

satisfy the requirements of listing 12.05(C).”). Moreover, an “actual diagnosis of mental 

retardation is not required to satisfy listing 12.05(C), but the ALJ may consider the fact that no 

such diagnosis exists.” Bason v. Comm’r of Soc. Sec., No. 12-15033, 2014 WL 1328168, at 

*14 (E.D. Mich. Mar. 31, 2014).

Instead, courts look to “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 

4 Plaintiff declines to press a listing 12.05(B) argument. (Doc. 9 at 6.) That listing is satisfied by a “valid verbal, 

performance, or full scale IQ of 59 or less.” 20 C.F.R. pt. 404, subpt. P, App. 1. § 12.05(b). Two scores in the 

record here potentially meet this criterion, but Plaintiff considers both invalid. (Doc. 9 at 6.) The more recent 

qualifying score was from Dr. Fowler’s test, but he concluded that it was invalid. (Tr. at 469.) See Dragon v. 

Comm’r of Soc. Sec., 470 F. App’x 454, 462 (6th Cir. 2012) (“The ALJ may choose to disregard I.Q. scores that 

would normally lead to a finding of disability when those scores were undermined by a doctor’s full

evaluation.”). Plaintiff writes off the other test because she took it at age ten, citing to listing 112.00(D) for the 

proposition that tests before the age of sixteen “are not necessarily reliable.” (Doc. 9 at 6 n.1.) However, in 

examining whether a test taken at age fourteen showed adaptive functioning issues, the Sixth Circuit rejected the 

Commissioner’s reliance on this same listing, 112.00(D), for the same proposition. Dragon, 470 F. App’x at 461 

n.2. Moreover, when rejecting listing 12.05(B), the ALJ here acknowledged the older test and failed to explicitly 

find it invalid. (Tr. at 15.) Instead, he rejected the listing because he found that the more recent test was invalid 

and that Plaintiff lacked the required deficits in adaptive functioning. (Id.) Nonetheless, Plaintiff has not offered

the listing 12.05(B) argument because the central dispute here is the ALJ’s adaptive functioning analysis. Also, 

Dragon is not directly on point because the analysis there centered on adaptive functioning during the 

developmental period, where a test taken during the claimant’s youth would be probative; here, in dealing with 

the standalone 12.05(B) requirement, the insufficiencies of IQ testing before age sixteen, pointed out in listing 

112.00(D), might have more weight.

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(6th Cir. 2007) (citing Heller v. Doe by Doe, 509 U.S. 312, 329 (1993)). The Sixth Circuit has 

also interpreted this term in light of non-binding definitions given by “leading professional 

organizations[.]” Hayes, 357 F. App’x at 677 (citing Technical Revisions to Medical Criteria 

for Determinations of Disability, 67 Fed. Reg. 20,018, 20,022 (2002)). The definition 

employed in that case came from the American Psychiatric Association, which “defines 

adaptive-skills limitations as ‘[c]oncurrent deficits or impairments . . . in at least two of the 

following areas: communication, self-care, home living, social/interpersonal skills, use of 

community resources, self-direction, functional academic skills, work, leisure, health, and 

safety.’” Id. (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental 

Disorders 49 (4th ed., text rev. 2000)). In another case, the Sixth Circuit suggested that 

claimants fail to meet the diagnostic description if they can “perform relatively complicated 

tasks.” Foster, 279 F.3d at 355. At least one lower court has used this standard to gauge a 

claimant’s deficits. See McCellan, 804 F. Supp. at 694.

The ALJ here explained the insufficiency of Plaintiff’s adaptive deficits by citing a 

variety of evidence, almost all of which relates to her ability to care for her children. (Tr. at 

16.) Specifically, he noted that she helped her children dress, prepared meals, and arranged for 

her mother to watch the children while she attended GED classes. (Id.) Evidence that Plaintiff 

needed substantial assistance to complete these tasks was contradicted, the ALJ noted, by a few 

statements from Plaintiff to the effect that she received no help from others. (Id.) 

In the RFC analysis and other sections of the decision, the ALJ relied on examination 

notes in which Plaintiff reportedly said she could “count money and use math in daily life 

adequately,” she received “mostly C’s” in school, she could drive, she shopped independently, 

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she took GED classes, she testified “that she did not know why she is unable to work,” and she 

said “she would like to be able to work at some point.” (Tr. at 18, 20.) The ALJ also observed 

her questionable motivation during the examinations, the “generally unremarkable” treatment 

she received for depression, and her ability on some occasions, but not others, to answer 

mathematical questions during examinations. (Tr. at 18-19.) Further, the ALJ relied on a 

reviewing agency psychologist’s opinion, formed after examining the records, that Plaintiff 

could perform simple tasks. (Tr. at 20, 72-74.) According to the ALJ, this opinion was 

consistent with her ability to raise children and was also confirmed by Dr. Fowler’s opinion. 

(Tr. at 20.) She rejected Dr. Austin’s opinion because it was based on a single examination, he 

considered her invalid 2005 IQ score, and during a different examination Dr. Zaroff believed 

that Plaintiff’s concentration was appropriate. (Tr. at 20-21.)

Plaintiff contends that the ALJ erred in finding that Plaintiff did not meet listing 

12.05(C). She highlights two specific errors. First, she argues that the ALJ’s discussion of the 

IQ score requirement was “vague and inconclusive” because it ignored qualifying scores from 

2005 and did not assess the validity of scores from 2000. (Doc. 9 at 7.) In fact, she adds, the 

2005 score was the only IQ result explicitly deemed valid by the examiner. (Id. at 7-8.)

Second, and more importantly, Plaintiff asserts that the adaptive functioning analysis does not 

support the ALJ’s conclusion. (Id. at 8-12.) The activities, by themselves, are not inconsistent 

with the listing and, moreover, the ALJ erroneously discounted her testimony that she required 

assistance to complete them. (Id. at 9-10.) Other evidence supported her testimony, she claims, 

and in any case the evidence cited by the ALJ is not probative of deficits “prior to age 22.” (Id.

at 10.) 

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Breaking down adaptive functioning into its components, Plaintiff attempts to show 

deficits in each. (Id. at 10-12.) Her academic skills were undoubtedly impaired as evidenced by 

the special education records. (Id. at 10.) Her communication and interpersonal skills similarly 

displayed deficits, verified by repeated observations of her shyness, struggles with reading 

comprehension, and lack of friends. (Id. at 10-11.) In her reply brief, she notes that completing 

basic, daily activities are not the sort of “‘relatively complicated tasks’” that disqualify a 

claimant from meeting the diagnostic requirement. (Doc. 17 at 3-5 (quoting McCellan, 804 F. 

Supp. 2d at 694.) The ALJ failed to examine her functioning prior to age twenty-two, focusing 

instead on her mothering skills. (Id. at 4-5.) The brief also asserts that the ALJ improperly

found the last prong of the 12.05(C) analysis was not met; that is, that Plaintiff did not have 

other impairments imposing significant, additional work-related limitations. (Doc. 17 at 2 

(citing Tr. at 16).) Plaintiff contends that the other severe impairments found at step two satisfy 

this requirement.

The Commissioner points out that the ALJ did mention the 2005 test scores during the 

RFC analysis; nonetheless the Commissioner assumes, without conceding that the 2005 scores 

would satisfy listing 12.05(C)’s testing requirement. (Doc. 15 at 17.) Even so, the 

Commissioner argues, the ALJ properly found insufficient adaptive deficits and therefore 

Plaintiff could not meet the listing. (Id. at 17-24.) A host of cases support a finding that living 

independently negates the requisite adaptive functioning deficits, according to the 

Commissioner. (Id. at 19-20.) Plaintiff’s case is further refuted by her ability to raise her 

children, as cases from other circuits demonstrate. (Id. at 23 n.6.) The ALJ also properly 

navigated through the contradictory statements about how much help she received from her 

33

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family. (Id. at 20-22.) Finally, the Plaintiff presented selective evidence when discussing the

components of adaptive functioning. (Id. at 22-24.)

This case presents a close question that turns upon the adaptive functioning analysis. 

That portion of the analysis is the relevant one because the ALJ did not adequately address the 

final two elements in the analysis: Plaintiff’s IQ scores and additional and significant workrelated limitations. Yet, if the adaptive functioning analysis has substantial support despite 

these errors, then the ALJ properly determined that Plaintiff failed to meet the listing. See 

Grillot v. Astrue, No. 3:11cv00374, 2012 WL 5493969, at *13 (S.D. Ohio Nov. 13, 2012) 

(finding that ALJ properly concluded the claimant did not meet the diagnostic description, and 

thus the ALJ’s “incorrect invalidation of Plaintiff’s IQ test scores [was] harmless error”), 

Report & Recommendation Adopted by 2012 WL 6728361, at *2 (S.D. Ohio Dec. 28, 2012).

Regarding listing 12.05(C)’s other prongs, the ALJ provided a vague and incomplete 

analysis at best. It is unclear whether the ALJ believed that any of the IQ scores met the listing. 

An ALJ can reject the validity of test results if supported by sufficient evidence and analysis.

Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 721 (6th Cir. 2012) (holding that “the mere 

fact of a qualifying IQ score does not require that the ALJ find mental retardation under 

Section 12.05B when substantial evidence supports the contrary conclusion or the claimant’s 

allegations of her capabilities are deemed not credible”); Hancock v. Astrue, 667 F.3d 470, 474 

(4th Cir. 2012) (“This circuit permits an ALJ to weigh conflicting IQ tests results.”). 

That did not occur here. In a paragraph of analysis, the ALJ begins by stating, “Finally, 

the ‘paragraph C’ criteria of listing are not met because the claimant does not have a valid 

verbal, performance, or full scale IQ of 60 through 70 . . . .” (Tr. at 16.) Yet a few lines later 

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she said, “The medical evidence of record indicates that the claimant has IQ scores below 70.” 

(Id.) She spent only two additional sentences analyzing the matter and failed to actually opine 

on any test’s validity. Of the numerous IQ scores in the record, the ALJ only addressed only

three, and even this truncated analysis never concluded whether the testing prong was met. (Tr. 

at 16.) The ALJ noted the 1997 and 2001 tests, both of which contained scores in the 60’s, 

satisfying listing 12.05(C). Interestingly, the only mention of the 2001 test in the record comes 

from Dr. Zaroff’s 2005 test report, which the ALJ otherwise ignored in the listing section. (Tr. 

at 16, 304.) Nowhere in the decision did the ALJ examine whether these scores were valid—

the only score found invalid was from 2010, which Dr. Fowler determined did not represent 

her intellectual functioning. (Tr. at 16, 19.) The ALJ seemed to implicitly discredit the 1997 

and 2001 results by mentioning a 2000 test that contained no scores below 70, the only such 

test in the record. (Tr. at 16, 288.) ALJs can weigh conflicting IQ results, but the ALJ here 

simply cited to them without giving reason to prefer one over the other. See generally

Hancock, 667 F.3d at 474. Dr. Zaroff’s 2005 test, with a verbal score of 64 and a full scale 

score of 65, is unmentioned in the relevant analysis. (Tr. at 303.) Elsewhere in the opinion the 

ALJ described the test and Dr. Zaroff’s conclusion that it was valid, but a minimal estimate of 

her intelligence. (Tr. at 18.) Again, however, the ALJ never analyzed whether it was in fact 

valid. Thus, while she may have considered the examination for purposes of the RFC, she did 

not adequately address it under listing 12.05(C). Cf. White, 2013 WL 5212629, at *7 (noting 

that the entire listing analysis does not need to be placed under the listing “heading”).

The ALJ provided no explanation whatsoever for why Plaintiff lacked “a physical or 

other mental impairment imposing an additional and significant work-related limitation of 

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function.” 20 C.F.R. pt. 404, subpt. P, App. 1 § 12.05(C). This was erroneous. The regulations 

state that to meet this requirement, the impairment must be “a ‘severe’ impairment[], as 

defined in §§ 404.1520(c) and 416.920(c).” Id. § 12.00(A). Those regulations define the 

severity level necessary to satisfy the step-two analysis. “Therefore, this prong of the 

paragraph C criteria is met if the ALJ finds, at Step 2 of the sequential disability analysis, that 

the claimant suffers from a severe physical or mental impairment that is distinct from the 

claimant’s low IQ.” Hutchinson v. Comm’r of Soc. Sec., No. 12-cv-11337, at *15 (E.D. Mich. 

Aug. 29, 2013) (adopting Report & Recommendation); see also Osborne v. Comm’r of Soc. 

Sec., No. 1:13cv1574, 2014 WL 4064078, at *9 (N.D. Ohio Aug. 15, 2014) (same); Revised 

Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 

50,746, 50,772 (2000) (same). The ALJ here found such additional impairments at step two:

depressive disorder and bipolar disorder. (Tr. at 13.) Moreover, she crafted restrictions in the 

RFC to accommodate these impairments. (Tr. at 19.) Consequently, she erred at step three by 

finding Plaintiff did not satisfy this element.

This leaves the adaptive functioning analysis. While the various parts of listing 12.05(C) 

are analytically separate, the errors in two of the three elements cast doubt on the ALJ’s 

examination of the remaining element. The ALJ’s reasoning in this portion of her decision 

relied almost exclusively on Plaintiff’s ability to keep her children from the clutches of Child 

Protective Services and to avoid eviction. (Tr. at 16.) Undergirding this view is the ALJ’s 

evident decision to discredit Plaintiff’s statements that her family provided substantial 

assistance in raising her children and running her household. It is true that an ALJ’s credibility 

determinations “are to be given great weight.” Cruse, 502 F.3d at 542; see also Rogers, 486 

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F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility 

of witnesses, including that of the claimant.”). However, courts have been wary of 

“unpersuasive attempts to turn the fact that the plaintiff is the mother of . . . children, whom

she chose not to abandon, into bases for disbelieving her testimony.” Dennis v. Astrue, 655 F. 

Supp. 2d 746, 756 (W.D. Ky. 2009); but see Temples v. Astrue, No. 1:11CV-00090-JHM, 2012 

WL 590814, at *5-7 (W.D. Ky. Jan. 24, 2012); Andersen v. Astrue, No. 3:11-cv-250-JAG, 

2012 WL 4498921, *7, 14-16 (E.D. Va. June 15, 2012). In a similar context, where the plaintiff 

attended school while allegedly disabled, the Sixth Circuit lauded her “courage and 

determination in refusing to surrender to the debilitating effects of her illness.” Coehn v. Sec’y 

of Dep’t of Health & Human Servs., 964 F.2d 524, 530 (6th Cir. 1992). Here, Plaintiff’s 

devotion to her children does not offer strong evidence to discredit her general testimony. 

Moreover the evidence that she raised her children without help is not as probative as 

the ALJ suggested. It is true that courts frequently cite claimants’ ability to care for their own 

daily needs or those of their children as a reason for finding they do not meet the diagnostic 

description in listing 12.05. See, e.g., Justice v. Comm’r of Soc. Sec., 515 F. App’x 585, 585 

(6th Cir. 2013); Talavera v. Astrue, 697 F.3d 145, 153 (3d Cir. 2012); Courter, 479 F. App’x at 

715; Hayes, 357 F. App’x at 677; Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007); West, 240 

F. App’x at 698; Pugh v. Comm’r, No. 2:13-cv-944, 2014 WL 4915684, at *5 (S.D. Ohio Sept. 

30, 2014), adopted by 2015 WL 1000452, at *3-5 (S.D. Ohio Mar. 5, 2015); Osborne, 2014 

WL 4064078, at *9-10; Robinson v. Comm’r of Soc. Sec., No. 2:13-cv-530, 2014 WL 

3419309, at *9 (S.D. Ohio July 10, 2014), Report & Recommendation adopted by 2014 WL 

4748483, at *1 (S.D. Ohio Sept. 23, 2014); Richardson v. Colvin, No. 2:13-CV-101, 2014 WL 

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2507927, at *8 (E.D. Tenn. June 4, 2014) (adopting Report & Recommendation); Deloach v. 

Comm’r of Soc. Sec., No. 1:13-cv-170, 2014 WL 533591, at *13 (S.D. Ohio Feb. 11, 2014), 

Report & Recommendation adopted by 2014 WL 935305, at *1 (S.D. Ohio Mar. 10, 2014); see 

also McClellan v. Astrue, 804 F. Supp. 2d 678, 693 (E.D. Tenn. July 7, 2011). These cases do 

not, however, stand for the proposition that raising children can constitute the sole reason for 

finding adequate adaptive functioning. In all but one of these cases the crucial evidence of 

adaptive functioning came from something other than raising a family; generally, it was the 

claimant’s extensive work history.5 Plaintiff here has no work experience except through a 

cash assistance program, which hardly provided significant experience or demonstrated 

adequate functioning.

5 See Justice, 515 F. App’x at 585 (claimant had “worked as a light welder, material handler, factory laborer, 

heavy equipment operator, construction laborer, factory assembler, and painter,” which included semiskilled 

positions; he received unemployment benefits conditioned on his assertion that he was ready and able to work; 

and the medical reports the ALJ credited “support the less severe diagnosis of borderline intellectual 

functioning, rather than mental retardation”); Talavera, 697 F.3d at 148-49, 153-54 (claimant nearly finished 

high school, attended business school, managed personal finances, worked without mental difficulties, she 

testified, as a receptionist, cashier, and telemarketer, and no medical professionals thought her impairments 

would prevent adaptive functioning); Courter, 479 F. App’x at 729 (“She had extensive prior work history as a 

cleaner and prep cook for several different companies, and she explicitly testified at her hearing that she was 

mentally capable of continuing that work,” and “[n]one of the experts diagnosed Claimant with mental 

retardation, and they opined that she did not qualify as mentally retarded under Section 12.05.”); Hayes, 357 F. 

App’x at 676-77 (claimant had “mentally challenging jobs” in the past, during years of therapy no psychologist 

indicated claimant had “limited intellectual functioning,” and she shopped, managed finances, and cared for 

herself and her husband); West, 240 F. App’x at 698 (claimant “held a long-term, full-time position” with the 

city government, worked part-time as his health deteriorated, paid bills, shopped, interacted with others, and 

engaged “in numerous other daily activities,” and examiners did not diagnose mental retardation); Pugh, 2014 

WL 4915684, at *1, 5 (claimant received “good grades” in school and held numerous jobs after high school 

graduation, including “semi-skilled work”); Osborne, 2014 WL 4064078, at *1-2, 9-10 (claimant had various 

jobs after finishing the tenth grade, passed general state proficiency tests, attended special education classes only 

a fifth of the day, babysat for others, and testified that she related well with coworkers and caught on to jobrelated tasks); Robinson, 2014 WL 3419309, at *1-2, 9 (claimant was married, enjoyed reading, and worked for 

years as a nurse and in restaurants); Richardson, 2014 WL 2507927, at *5-6, 8 (claimant shopped, fished, 

hunted, made wood crafts, and had a history of self-employment and also semiskilled work over twenty years); 

Deloach, 2014 WL 533591, at *5, 13 (claimant was not in special education and worked as a childcare provider 

for Human Services); see also McClellan, 804 F. Supp. 2d at 684-85 (claimant had past work experience).

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The view the ALJ espoused here, finding adequate adaptive functioning by virtue of the 

fact that claimant was not a failure as a mother, finds arguable support in only one of the above 

cases; but the brief discussion in that case—the whole opinion spans less than one page—

provides insubstantial support. Novy, 497 F.3d at 709. In that decision, the Seventh Circuit 

characterized adaptive functioning as “denot[ing] inability to cope with the challenges of 

ordinary everyday life.” Id. The court thought it sufficed that claimant could raise three 

children “without help, feeding herself and them, taking care of them sufficiently well that they 

have not been adjudged neglected and removed from her custody by the child-welfare 

authorities, paying her bills, [and] avoiding eviction.” Id. Without more, the court upheld the 

ALJ’s findings. 

As an initial matter, the court in Novy found no dispute that the claimant raised her 

children “without help.” 497 F.3d at 709. Here, despite the deference owed to the ALJ’s 

credibility decision, the Court need not ignore the contrary evidence. More importantly, the 

Sixth Circuit has pointed the analysis in a different direction. First, the Novy court applied a 

lower standard for adaptive functioning than the Sixth Circuit suggested in Foster, which asked 

whether the claimant could “perform relatively complicated tasks.” Foster, 279 F.3d at 355; 

see also McCellan, 804 F. Supp. at 694.

Moreover, the Sixth Circuit has found that even more complicated activities are not 

inconsistent with adaptive functioning deficits rendering a claimant intellectually disabled. In 

Brown v. Secretary of Health and Human Services, the court examined the types of activities 

congruent with meeting listing 12.05(C). 948 F.2d 268, 270 (6th Cir. 1991). The court looked 

to the leading professional group’s description of the impairment underlying 12.05(C), then 

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called “Mild Mental Retardation”: Persons with this disability “‘can acquire academic skills up 

to approximately sixth-grade level; during their adult years, they usually achieve social and 

vocational skills adequate for minimum self-support . . . . [and] virtually all people with Mild 

Mental Retardation can live successfully in the community, independently, or in supervised 

apartments or group homes.’” Id. (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical 

Manual of Mental Disorders 49 (3d ed., 1987)). The specific legal question the court faced was 

whether the ALJ properly invalidated the claimant’s full scale IQ score of 68 in light of the 

claimant’s ability “to use public transport,” do his own laundry, make change at a grocery 

store, follow a road atlas, read a newspaper, and his ability in the past to work as a truck driver, 

recording mileages and hours driven. Id. Considering the definition of “Mild Mental 

Retardation,” the court found that none of these facts were “inconsistent with a valid test I.Q. 

of 68.” Id. Further, the court noted that the Commissioner, “in promulgating Listing 12.05 C, 

expressly singled out individuals with Mild Mental Retardation for special treatment in 

determining entitlements to disability benefits,” and that both the claimant’s scores and 

“biography fit[] squarely within [the professional] profile of a mildly retarded individual.” Id.

Recently, the Sixth Circuit again addressed the appropriateness of invalidating IQ scores 

in a case similar to the present. In Dragon v. Commissioner of Social Security, the ALJ found 

there were no adaptive functioning deficits in the developmental period largely because the 

ALJ disregarded a qualifying IQ score from that period on the grounds that the testing took 

place when the claimant was a child. 470 F. App’x 454, 460-61 (6th Cir. 2012). Describing 

how this flipped the diagnostic definition on its head, the Sixth Circuit emphasized the 

importance of childhood IQ scores and school records when determining adaptive functioning. 

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In particular, the court found persuasive the fact that the claimant proceeded “in a separate 

educational program,” had a mild articulation delay, qualified for speech therapy, and did not 

pass ninth-grade proficiency tests. Id. at 461. The observations in Brown were reaffirmed in the 

court’s discussion of why the ALJ placed undue emphasis on the claimant’s high school 

graduation and motherhood. Id. at 463. While the claimant eventually graduated, it was 

through an individual program and she had evident academic deficiencies; further, her “good 

relationship with her daughter” was partially enabled by living with the daughter’s father, the 

claimant’s eventual husband. Id. Consequently, the ALJ’s analysis of the first two elements in 

the listing was unsupported by substantial evidence and the court remanded “for an immediate 

award of benefits.” Id. at 467. Judge Danny Boggs, concurring in part, agreed that the ALJ 

erred but would have remanded for reevaluation. Id. at 467-68.

Other cases from across the country have reflected the analyses in Brown and Dragon. 

For example, the court in Brooks v. Astrue, found that the ALJ erred by disregarding the 

claimant’s “poor performance in special education” during the step three analysis. No. 2:10-

CV-00037, 2011 WL 3882283, at *7 (E.D. N.C. Aug. 17, 2011), Report & Recommendation 

adopted by 2011 WL 3904104, at *1 (E.D. N.C. Sept. 2, 2011). According to the court, the 

ALJ’s brief reference to the school records when discussing the claimant’s current RFC was 

inadequate to demonstrate a proper step three analysis. Id. Another error, even more pertinent 

to the present case, also marred the ALJ’s analysis: The ALJ used the claimant’s ability to raise 

a child, work, and complete household chores as the almost lone evidence that the claimant did 

not have adaptive functioning deficits. Id. at *8. These facts were not inconsistent with 

intellectual disability under 12.05(C) and thus, the court concluded, “because the ALJ relied 

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almost exclusively on the fact that Claimant had worked and performed other tasks in the past . 

. . the Court finds that the ALJ appears to have placed improper weight on this type of 

evidence.” Id.

A similar adaptive functioning analysis was found inadequate in Radford v. Astrue, No. 

5:08-CV-421, 2009 WL 165958, at *6 (E.D. N.C. June 10, 2009) (adopting Report & 

Recommendation). The ALJ did not isolate and examine intellectual functioning during the 

developmental period, but rather merely concluded there were no deficits due to the claimant’s 

ability to complete household chores, raise a family, marry, and work for several years. Id. The 

court rejected this simplistic assessment: “[T]he fact an individual is able to work, complete 

household chores, and raise a family is not inconsistent with mild mental retardation.” Id.

(citing Durden v. Astrue, 586 F. Supp. 2d 828, 839 (S.D. Tex. 2008)). In support, the court 

cited Brown and other cases that interpreted listing 12.05(C) as “‘assum[ing] many, if not 

most, mildly mentally retarded individuals will be able to work,’” but that such individuals 

become disabled when, as the listing envisions, their intellectual problems combine with an 

additional and significant impairment. Id. (quoting Muntzert v. Astrue, 502 F. Supp. 2d 1148, 

1158 (D. Kan. 2007)). 

Other courts have observed that individuals with intellectual disabilities under listing 

12.05(C) may “‘be able to understand simple oral instructions, and to be able to carry out those 

instructions under somewhat closer supervision.’” Grenham v. Astrue, No. 08-CV-11151, 2009 

WL 1209026, at *5 (D. Mass. May 4, 2009) (quoting Flagg v. Barnhart, No. 04-45, 2004 WL 

2677208, at *5 (D. Me. Nov. 24, 2004)). In Grenham, the court also noted that a “person with 

mild mental retardation may be able to maintain a household, care for children, and obtain a 

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GED.” Id. See also Ouellette v. Apfel, No. 00-112, 2000 WL 1771122, at *2-4 (D. Me. Dec. 4, 

2000) (Report & Recommendation) (finding that ability to independently maintain a household 

and raise two children was not inconsistent with intellectual disability under 12.05(C)). The 

First Circuit has likewise explained that the structure of listing 12.05(C) indicates that “mild . . 

. retardation” demonstrated by qualifying IQ scores and other medical evidence does not alone 

prevent a claimant from sustaining work, which is why 12.05(C) imposes the additional and 

significant impairment requirement. Nieves v. Sec’y of Health & Human Servs., 775 F.2d 12, 

14 (1st Cir. 1985).

In light of this case law, I suggest that the ALJ’s decision is not supported by substantial 

evidence. Unlike the cases where raising children constituted a valid consideration, Plaintiff 

here did not also display other signs of adequate adaptive functioning, such as a lengthy work 

history or an undoubted ability to manage personal finances and a household. The ALJ instead 

concluded that raising children in an independent household sufficed, and to reach this 

conclusion the ALJ had to discredit the relatively consistent evidence that Plaintiff required 

significant assistance in these activities. Such an approach to the analysis ignores the 

multifaceted components comprising adaptive functioning, as laid out by the Sixth Circuit 

from the non-binding works by professional psychiatric associations. These components 

include effectiveness in social skills, communication, and daily living skills, West, 240 F. 

App’x at 698, or the test employed by the Sixth Circuit in Hayes, which cited the leading 

manual’s definition: concurrent deficits in at least two areas, including “‘communication, selfcare, home living, social/interpersonal skills, use of community resources, self-direction, 

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functional academic skills, work, leisure, and safety.’” 357 F. App’x at 677 (quoting Am. 

Psychiatric Ass’n, DSM-IV at 49).

Using these factors to examine the record represents the proper mode of analysis, which 

the ALJ did not undertake. A particularly glaring gap is the ALJ’s failure to closely analyze 

Plaintiff’s school records. While poor academic performance does not alone show adaptive 

functioning deficits, Hayes, 357 F. App’x at 677, the comprehensive school records here 

extend well beyond her academic aptitude and touch upon all facets of adaptive functioning 

during the developmental period, often with observations and testing from expert sources. 

They demonstrate significant issues with communication, academic skills, and social ability. 

The very first report documents her problems with reading comprehension, and during a 

subsequent examination with the school psychologist she displayed poor attention and problem 

solving skills, and often ignored his questions. (Tr. at 229.) The struggles with reading 

comprehension and appropriate behavior continued throughout her schooling, especially with 

communication. (Tr. at 249-51, 260, 262, 287.) In mathematics, she struggled to do more than 

simple addition and subtraction and, in her eighth-grade year functioned at a third-grade level. 

(Tr. at 263, 280.) 

It appears that most of her schooling was through the special education program, and 

that while she passed some classes, she failed or earned low marks in others. (Tr. at 259, 268, 

277, 287.) Overall, the records show academic functioning deficits. However, the records also 

provide some countervailing evidence. For example, the team reports twice concluded that her 

underachievement did not “primarily” result from “mental retardation.” (Tr. at 225, 285.) The 

two expert reports in the school records also suggest she performed in the borderline or low44

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average range, though Dr. Knack’s report observed that Plaintiff had difficulty working 

independently. (Tr. at 231, 288.) In short, the ALJ needed to parse these records so that the 

adaptive functioning analysis could better reflect the various facets of adaptive functioning.

Additionally, the ALJ did not sufficiently address Plaintiff’s sparse and allegedly unsuccessful 

work experience, which represents another consideration in the analysis. (Tr. at 38-40, 465, 

559.)

Considering the importance the ALJ placed on Plaintiff’s ability to independently care 

for her children, the ALJ’s credibility assessment becomes critical. On this point, I suggest that 

the ALJ failed to properly weigh the evidence. The decision concludes that the “preponderance 

of evidence indicates that the claimant is able to care for her children independently.” (Tr. at 

18.) As support, the ALJ cites three consultative examinations. (Id.) In the first, Plaintiff said 

her mother helped only while Plaintiff attended GED classes. (Tr. at 18, 301.) The ALJ 

surmises that Plaintiff’s failure to mention her family’s assistance in one of the other 

examinations—aside from noting her sister’s help cooking and cleaning—indicates that 

Plaintiff raised her children without help. (Tr. at 18.) Elsewhere, the ALJ mentioned Plaintiff’s 

statements that she could cook and care for her children. (Tr. at 15.) On one occasion, Plaintiff 

claimed that she received no assistance. (Tr. at 16, 573, 592.)

Again, however, the evidence is more mixed than the ALJ suggested and requires a 

more thorough analysis. One significant oversight was the ALJ’s failure to recognize that 

Plaintiff lived with her family throughout most of the period.6 (Tr. at 51, 301.) Cf. Dragon, 470 

6 At the hearing in 2012, she testified that they moved from her mother’s two years prior. (Tr. at 51.) The few 

references to her housing prior to 2010 either confirm that she lived at home or do not indicate where she lived. 

(Tr. at 301, 399.)

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F. App’x at 463 (noting that while the claimant cared for her children, another parental figure 

lived in the same household). After having her first child, Plaintiff was able to return to school 

because, the records indicate, her mother “helps a lot with the baby especially when [Plaintiff] 

is in school.” (Tr. at 433.) Moreover, the child’s father also assisted during that period. (Tr. at 

438.) On her application form and at the hearing, she claimed that others helped her raise the 

children. (Tr. at 40-45, 160.) While her mother’s supporting application form checked that no 

one assisted Plaintiff with her dependents, the mother tellingly said, “I have to see did she take 

her meds,” and had to provide reminders on other personal needs. (Tr. at 173.)

Thus, the evidence points in both directions. The ALJ does not, of course, need to cite 

every piece of evidence in the record, Kornecky, 167 F. App’x at 507-08 (6th Cir. 2006), and 

the existence of substantial evidence supporting the opposite conclusion will not be enough to 

overturn the ALJ’s findings if they too have substantial support. McClanahan, 474 F.3d at 833.

Nonetheless, the failure to assess some of the evidence here is troubling because the ALJ’s 

step-three analysis relied on Plaintiff’s ability to independently care for her children as the 

exclusive evidence of adaptive functioning. Even if such evidence could properly support that 

determination, the factual grounds here are less sturdy than the ALJ’s brief overview suggests.

Moreover, the objective and opinion evidence generally supports the argument that 

Plaintiff suffers adaptive functioning deficits and should be reassessed on remand. Discussing 

Dr. Zaroff’s 2005 examination, the ALJ highlighted Plaintiff’s statements that she had no 

functional deficits, could handle everyday mathematics, and could cook. (Tr. at 18.) Regarding 

Dr. Fowler’s examination, the ALJ found it supported the conclusion that Plaintiff could 

perform work because it opined that Plaintiff could “understand and follow only the simplest 

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of directions.” (Tr. at 19.) The ALJ also relied on a reviewing psychologist who determined 

that Plaintiff could perform two-step tasks. (Tr. at 20.) The ALJ thought this was consistent 

with Plaintiff’s ability to shop, drive, perform household chores, and care for children. (Id.)

The ALJ gave little weight to Dr. Austin’s examination because he considered the 

invalid 2005 IQ scores and, in other examinations, Plaintiff’s performance on the mental status 

examination was “noticeably” better. (Tr. at 21.) Additionally, the ALJ considered Plaintiff’s 

ability in the 2005 examination to “perform serial three calculations with one mistake,” and to 

perform serial three and serial seven calculations “slowly” and incompletely at the 2010 

examination. (Tr. at 14.) The ALJ later concluded that these results indicated a somewhat 

greater mathematical ability than the results obtained in Dr. Austin’s examination, where 

Plaintiff “was unable to perform [serial] seven calculations and she had poor performance on 

serial three calculations.” (Tr. at 19.)

The ALJ’s discussion is somewhat selective and leaves out important conclusions that 

were generally consistent among the sources. First, various doctors diagnosed “Mild Mental 

Retardation.” (Tr. at 305, 469, 561.) Dr. Zaroff was the first, in 2005, to make this assessment; 

Dr. Fowler and Dr. Austin both retained it, even though the former questioned her effort. 

Additionally, the ALJ’s observation that Plaintiff told Dr. Zaroff she could handle money (Tr. 

at 18, 300) is undercut by the conclusion of all three examiners that she could not manage 

benefit funds (Tr. at 305, 470, 561), as well as her mother’s consistent statements, in both the 

application and as documented in Dr. Zaroff’s notes, that Plaintiff struggled with finances. (Tr. 

at 174, 304.) The ALJ’s reliance on Dr. Fowler’s functional assessment, to the extent it 

influenced the step-three analysis, is also mistaken. His determination that Plaintiff could 

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follow only the “simplest of directions” and not “make independent work-related decisions” is 

not inconsistent with adaptive functioning deficits. See Brown, 948 F.2d at 270; Grenham,

2009 WL 1209026, at *5. 

Instead of considering these overarching diagnoses and conclusions, the ALJ tended to 

parse through those portions of the test results that the doctors left unexplained, such as the 

mathematical and general knowledge portions. For example, the ALJ concluded that Dr. 

Austin’s opinion was less persuasive because Plaintiff had demonstrated in the 2005 

examination with Dr. Zaroff a “good fund of information, and she demonstrated the ability to 

think abstractly and exercise judgment.” (Tr. at 21.) Yet Dr. Zaroff never made either 

comment; instead, it appears the ALJ derived these insights from examining Plaintiff’s 

recorded answers to Dr. Zaroff’s questions. In particular, Plaintiff knew five large cities, 

named three celebrities and the current president, and cited “shootings” as a current event. (Tr. 

at 303.) In the abstract thinking section, she knew the meaning of half the proverbs she was 

asked to interpret—“Don’t cry over spilled milk,” but not “The grass is greener on the other 

side.” (Id.) Contrary to the ALJ, Plaintiff’s performance on these tasks during Dr. Austin’s 

examination was not appreciably different: She answered both abstract thinking questions, 

though with uninspired responses, and named the current president. (Tr. at 560.)

The ALJ also emphasized the calculation portions of the testing. (Tr. at 14.) The results 

demonstrate more significant problems with adaptive functioning than the ALJ found. In her 

examination with Dr. Zaroff, she struggled to count backwards from thirty-one by threes, 

missing three out of ten questions. (Tr. at 303.) She also missed half of the multiplication 

questions—though there were only two—and there were no division problems. (Id.) Her 

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answers to nearly every calculation question posed by Dr. Austin were incorrect, which 

certainly raises credibility issues. (Tr. at 560.) Nonetheless, her prior tests, along with her 

documented struggles in school in this subject, provide evidence of real problems with 

adaptive functioning that the ALJ did not sufficiently address. 

Thus, I suggest that substantial evidence fails to support the ALJ’s conclusion that 

Plaintiff does not meet listing 12.05(C). The lone evidence cited—her ability to live 

independently and raise children—is not factually incontrovertible, but even more importantly, 

it is not enough of a basis to establish adequate adaptive functioning. The ALJ should have 

more thoroughly addressed the various components comprising adaptive functioning, which 

would require a closer examination of the school records. Moreover, the opinion evidence 

includes information relevant to Plaintiff’s adaptive functioning that the ALJ should examine 

on remand. Also necessary is a more explicit discussion of the validity of the various IQ tests.

It is possible that a fuller analysis will show that the ALJ reached the correct decision. 

Evidence in the record cuts both ways. But for the Court to sufficiently review the decision, the 

ALJ must first construct the proper analysis, based on an in depth look at the school records 

and application of the proper framework for adaptive functioning. I do not find the evidence so 

compelling that remand for an immediate award of benefits is appropriate. Cf. Dragon, 470 F. 

App’x at 468 (Boggs, J., dissenting in part) (recommending remand in light of the principles 

set out by majority). The ALJ raised valid if overblown concerns with Plaintiff’s credibility

and the school records were largely unexamined. Thus a fresh analysis could come to the same 

result.

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3. Conclusion

For all these reasons, after review of the record, I suggest that the decision of the ALJ, 

which ultimately became the final decision of the Commissioner, is not within that “‘zone of 

choice’ within which decisionmakers may go either way without interference from the courts,” 

Felisky, 35 F.3d at 1035 (quoting Mullen, 800 F.2d at 545), as the decision is not supported by 

substantial evidence. Consequently, I recommend that the case be remanded to the 

Commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g).

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and file 

specific written objections to the proposed findings and recommendations. A party may 

respond to another party’s objections within 14 days after being served with a copy.” Fed. R. 

Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a 

waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 

435 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some 

objections, but failing to raise others, will not preserve all the objections a party may have to 

this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 

401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th 

Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served 

upon this magistrate judge. 

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Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to which it 

pertains. Not later than 14 days after service of an objection, the opposing party may file a 

concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in 

the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule 

without awaiting the response.

Date: May 21, 2015 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through 

the Court’s CM/ECF system which delivers a copy to all counsel of record. 

Date: May 21, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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