IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DIANNA L. ARMS,

Plaintiff,

vs. Civil Action 2:10-CV-977

Judge Sargus

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42 U.S.C. §§

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

Social Security denying plaintiff’s application for supplemental

security income. This matter is now before the Court on Plaintiff’s

Statement of Errors, Doc. No. 9, the Commissioner’s memorandum in

opposition, Doc. No. 10, and plaintiff’s reply memorandum, Doc. No.

11. 

I. Procedural History

Plaintiff Dianna Arms filed her application for benefits on

December 6, 2004, alleging that she has been disabled since November

1, 2002. The application was denied initially and upon

reconsideration and plaintiff requested a de novo hearing before an

administrative law judge. 

On January 10, 2008, plaintiff, represented by counsel, appeared

and testified at an administrative hearing, as did Thomas Grzesik, who

testified as a vocational expert. A.R. 423-456.

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In a decision dated February 28, 2008, an administrative law

judge found that plaintiff’s severe impairments consist of arthritis

of the left knee, borderline intellectual functioning and/or mild

mental retardation. A.R. 55. The administrative law judge went on to

find that plaintiff’s impairments neither meet nor equal a listed

impairment and leave her with the residual functional capacity to

perform a reduced range of light work. A.R. 55-59. Because the

administrative law judge found that this residual functional capacity

permitted the performance of a significant number of jobs, the

administrative law judge concluded that plaintiff is not disabled

within the meaning of the Social Security Act. A.R. 60. 

The Appeals Council remanded the matter for a new hearing, and

directed that the administrative law judge obtain the services of a

medical expert. A.R. 63, 69-73. 

On remand, two more administrative hearings were held: on

December 9, 2008, and on July 24, 2009. Plaintiff, represented by

counsel, appeared and testified at each. A.R. 385-422; 362-84. M.

Bruce Walsh, Ph. D., also testified as a vocational expert at the July

24, 2009 hearing. In a decision dated November 4, 2009, a different

administrative law judge found that plaintiff’s severe impairments

consist of left knee arthritis, low weight, borderline intellectual

functioning/mild mental retardation, and affective and anxiety-related

disorders. A.R. 19-20. The administrative law judge went on to find

that plaintiff’s impairments neither meet nor equal a listed

impairment and leave her with the residual functional capacity to

perform a reduced range of light work. A.R. 20-24. Relying on the

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testimony of the vocational expert, the administrative law judge found

that plaintiff’s residual functional capacity permits her to perform

work that exists in significant numbers, including work as a cleaner

and laborer/packer. A.R. 24-25. The administrative law judge

therefore concluded that plaintiff is not disabled within the meaning

of the Social Security Act. A.R. 25.

That decision became the final decision of the Commissioner of

Social Security when the Appeals Council declined review on September

2, 2010. A.R. 5-8.

II. Standard

Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

of the administrative law judge are supported by substantial evidence

and employed the proper legal standards. Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595

(6th Cir. 2005). Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.

1981). This Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility. Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).

In determining the existence of substantial evidence, this Court

must examine the administrative record as a whole. Kirk, 667 F.2d at

536. If the Commissioner’s decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the

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matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d

1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d

1058, 1059 (6th Cir. 1983)), and even if substantial evidence also

supports the opposite conclusion. Longworth, 402 F.3d at 595.

III. Evidence

Plaintiff was thirty-nine years old at the time the

administrative law judge issued the final administrative decision. 

A.R. 25, 394. She attended school through the ninth grade and

started, but did not complete, tenth grade because she quit and had a

child. A.R. 401-402. Plaintiff admits that she “didn’t hardly even

go to school” when enrolled and her transcripts reflect that she

received primarily poor grades, failing multiple classes. A.R. 402,

107-108. Plaintiff has no prior relevant work experience. A.R. 24. 

On September 4, 2003, plaintiff, complaining of left knee pain,

was seen by William Miser, M.D., plaintiff’s primary care physician

since March 2001. A.R. 166, 261. On examination, plaintiff’s left

knee had a good range of motion. A.R. 261. An x-ray of the left knee

following the examination was normal. A.R. 274-75. 

On November 18, 2004, plaintiff presented to Dr. Miser with

complaints of persistent knee pain, inability to gain weight,

increased stressors resulting from family difficulties, fatigue, and

crying spells. A.R. 179, 259. Dr. Miser diagnosed left knee pain,

low weight and mild depression. A.R. 180, 260. He referred plaintiff

to counseling and recommended knee exercises. Id.

On December 16, 2004, an examination by Dr. Miser revealed left

knee tenderness; he recommended continued knee exercises. A.R. 177-

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78, 257-58. 

On January 18, 2005, T. Rodney Swearingen, Ph.D., performed a

consultative psychological evaluation at the request of the Bureau of

Disability Determination. A.R. 109-113. During the exam, plaintiff

complained of tissue damage and weakness in her left leg resulting

from an earlier injury. A.R. 109. Plaintiff also reported a history

of sexual assaults as a child. Id. Plaintiff complained of bad nerves

and depression; she denied attempted suicide or nervous breakdown. 

A.R. 109-110. According to plaintiff, she quit school because she

“was dumb and did not want to listen to her mother.” A.R. 110.

According to plaintiff, she cannot work because of her

depression, nerves and her leg/physical health. Id. Although she had

never worked longer than one month, she has never been fired from a

job. Id. She denied having problems interacting with coworkers and

supervisors; she reported difficulty following instructions and

accomplishing repetitive tasks. Id. 

On clinical examination, plaintiff maintained good eye contact

and spoke directly. A.R. 111. Plaintiff reported suspiciousness,

repetitive thoughts and behaviors. Id. Plaintiff also reported

having crying spells, being depressed, and feeling hopeless at times. 

Id. She worries about bills, finances, and her marriage. Id. She

also reported hallucinations. Id. She enjoys playing cards, watching

television and doing crossword puzzles. Id. Plaintiff was alert and

oriented and was able to follow instructions during the evaluation. 

A.R. 112. Persistence was average and pace was adequate. Id. She

had difficulty demonstrating short-term auditory memory and her

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abstract thinking was poor; verbal abilities were average. Id. At

the time of the evaluation, plaintiff was living with her husband and

son, who both receive disability benefits. Id. During a typical day,

plaintiff stays in the house, cleans, prepares meals, and looks after

her son. Id. She can bathe and dress herself without help, write

letters, read the newspaper, tell time, make change, and take

medications without reminders. Id. Dr. Swearingen reported that

plaintiff acknowledged that she has no problems managing money. A.R.

113. Plaintiff does not have a current driver’s license and relies on

her husband to do the shopping. A.R. 112. Plaintiff reported having

many friends and socializing often. Id. 

Dr. Swearingen diagnosed post traumatic stress disorder (“PTSD”)

and assigned a global assessment of functioning (“GAF”) score of 55,

which is suggestive of moderate impairment. A.R. 112-113.

Plaintiff’s ability to relate to others, including fellow workers, and

her mental ability to maintain attention, concentration, persistence,

and pace sufficient to perform repetitive tasks were mildly impaired. 

A.R. 113. Plaintiff’s mental ability to understand, remember, and

follow instructions and her mental ability to withstand stress and

pressures of day-to-day work activity were mildly to moderately

impaired. Id. 

On January 19, 2005, William Blackburn, Ph.D., a psychologist who

previously treated plaintiff, again examined plaintiff upon referral

by her family physician. A.R. 115, 331. Plaintiff reported

developmental delays in walking and talking. A.R. 116. She attended

school through the tenth grade and received cognitive assistance in

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school. A.R. 119. Plaintiff reported sometimes feeling unhappy, sad,

depressed, worried, afraid, scared, lonely or isolated. A.R. 125. 

She also reported sleep disturbances, trouble controlling her anger,

and losing her appetite or being worried about her weight. Id. 

According to plaintiff, she has trouble making or keeping friends and

has had serious problems with her spouse. A.R. 126. Dr. Blackburn

noted that plaintiff had poor insight, appeared anxious and depressed,

and had below normal intellect with suspicious thoughts. A.R. 127. 

Dr. Blackburn diagnosed an adjustment disorder with emotional features

and mild mental retardation/developmental delays. He assigned a GAF

score of 55. A.R. 226. He anticipated providing nine months of

counseling and noted that plaintiff’s prognosis was fair. Id. Dr.

Blackburn saw plaintiff and her husband for couple’s therapy through

November 2005. A.R. 139-156. During some of these subsequent visits

with Dr. Blackburn, plaintiff reported feeling depressed and stressed

over family situations and her chronic pain. A.R. 149, 152, 155. 

On June 23, 2005, Dr. Miser reported that plaintiff was disabled

as a result of moderately impaired intellectual functioning, left leg

(knee) pain and weakness, and PTSD. A.R. 166. 

On September 30, 2005, Dr. Blackburn sent a letter to plaintiff’s

counsel, advising that plaintiff, who had been referred to Dr.

Blackburn for assistance in strengthening her parenting skills, and

her husband had learned how to care for their medically fragile son. 

A.R. 331. Dr. Blackburn also noted that plaintiff, upon Dr. Miser’s

recommendation, returned to psychotherapy in January 2005 due to

stress over family conflicts and low grade chronic levels of anxiety

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and depression. Id.

On March 29, 2006, Dr. Miser completed a Multiple Impairment

Questionnaire and noted that he treats plaintiff every three to six

weeks. A.R. 236, 243. Dr. Miser diagnosed chronic left knee pain,

PTSD and a moderate impairment of intellectual functioning. A.R. 236. 

In support of this diagnosis, Dr. Miser referred to Dr. Swearingen’s

January 18, 2005 report and plaintiff’s left knee tenderness. A.R. 

236-237. Plaintiff’s primary symptoms included pain in her left knee

during exertion, bending and stooping, as well as anxiety and stress. 

A.R. 237. Dr. Miser noted that plaintiff’s pain occurred weekly,

almost daily. He rated her level of pain and level of fatigue as

moderately severe. A.R. 238. In estimating plaintiff’s residual

functional capacity during an eight-hour work day, Dr. Miser opined

that plaintiff could sit for three hours a day, stand/walk for one

hour a day, and must get up and move around every hour for ten

minutes. A.R. 238-239. Dr. Miser opined that plaintiff could lift

five to ten pounds occasionally, but never carry any weight. A.R.

239. Plaintiff’s pain, fatigue or other symptoms were severe enough

to interfere with her attention and concentration. A.R. 241. Dr.

Miser also opined that plaintiff was incapable of even low stress work

and that she needed to take unscheduled breaks to rest. Id. He

estimated that plaintiff would be absent from work, on average, more

than three times per month. A.R. 242. 

At a mid-April 2006 office visit, Dr. Miser noted that

plaintiff’s mental health was stable. A.R. 251-252. An MRI of

plaintiff’s left knee revealed degenerative changes of the posterior

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horn of the medial meniscus. A.R. 277-278. 

Dr. Blackburn completed a Psychiatric/Psychological Impairment

Questionnaire dated June 14, 2006. A.R. 282-289. He diagnosed

depression, anxiety and indecision in relation to family stressors as

well as mild mental retardation. A.R. 282. Dr. Blackburn assigned a

current GAF score of 55 and rated her highest GAF score in the last

year as 58. Id. In support of his diagnosis, Dr. Blackburn

identified clinical findings of poor memory, mood disturbances,

emotional lability, difficulty thinking or concentrating, decreased

energy, and pathological dependence or passivity. A.R. 283. He also

noted plaintiff’s recent IQ measurement of 63. Id. Dr. Blackburn

identified plaintiff’s primary symptoms as anxiety, fear of being

alone, mild to moderate chronic depression, and ongoing family

conflicts. A.R. 284. Dr. Blackburn opined that plaintiff’s ability

to remember locations and work-like procedures and ability to

understand and remember one or two step instructions were moderately

limited and that her ability to understand and remember detailed

instructions was markedly limited. A.R. 285. He rated as markedly

limited her ability to carry out detailed instructions, ability to

maintain attention and concentration for extended periods, ability to

perform activities within a schedule, maintain regular attendance, be

punctual within customary tolerance, ability to sustain ordinary

routine without supervision, ability to work in coordination with or

proximity to others without being distracted by them, ability to make

simple work related decisions, and ability to complete a normal

workweek without interruptions from psychologically based symptoms and

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to perform at a consistent pace without an unreasonable number and

length of rest periods. A.R. 285-286. Dr. Blackburn also

characterized as markedly limited plaintiff’s ability to interact with

the general public, ability to get along with co-workers or peers

without distracting them or exhibiting behavioral extremes, ability to

respond to changes in the work setting, ability to travel to

unfamiliar places or use public transportation and ability to set

realistic goals or to make plans independently. A.R. 286-287. Dr.

Blackburn went on to note that plaintiff experienced episodes of

deterioration or decompensation in work or work like settings which

caused her to withdraw from that situation and/or experience

exacerbation of symptoms. A.R. 287. He also noted that plaintiff was

very dependent and does not go out without her husband and that she is

easily bothered by minor events. A.R. 288. Dr. Blackburn estimated

that plaintiff is likely to be absent from work, on average, more than

three times a month. A.R. 289.

On December 13, 2006, Dr. Blackburn noted that plaintiff reported

reduced stress. A.R. 293.

In January 2007, Dr. Blackburn noted that plaintiff had been

referred for treatment beginning in January 2005 due to increased

psychosocial stressors, with symptoms of anxiety, depression and

stress related to caring for her medically fragile son. A.R. 300. 

Dr. Blackburn also noted that plaintiff experiences moderate levels of

chronic anxiety and depression, is completely dependent on her

husband, and has mild developmental delays. Id. In light of all of

this, Dr. Blackburn opined that plaintiff, as of January 2007, was

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unable to work. Id.

On June 18, 2007, Dr. Blackburn administered the Wechsler

Abbreviated Scale of Intelligence (“WASI”), in which plaintiff

achieved an IQ score of 61, which fell in the range of mentally

deficient. A.R. 303-304. 

On July 9, 2007, Dr. Blackburn completed a form for the Ohio

Department of Job and Family Services, diagnosing mild mental

retardation and chronic adjustment disorder with mixed emotional

features (psychological dependency on husband). A.R. 305-306. Dr.

Blackburn noted that plaintiff had no limitations in standing/walking;

could lift ten pounds occasionally; was moderately limited in

pushing/pulling; and was markedly limited in speaking. A.R. 306. He

opined that plaintiff was unemployable and would remain so for 12

months or more. Id. 

In a letter dated January 8, 2008, addressed to plaintiff’s

counsel, Dr. Blackburn reported that plaintiff’s “condition remains

essentially the same” and that she functions at “a low level only

getting by with considerable support from her husband and mother.” 

A.R. 330. He opined that plaintiff was unable to work, referring to

two prior letters written by him that describe plaintiff’s

limitations, and noting that plaintiff has mild mental retardation,

social and emotional immaturity, pathological dependence on husband,

very low frustration tolerance, limited self insight and limited

capacity to comprehend minimal expectations of social and vocational

situations. A.R. 330-332. 

After seeing plaintiff in September 2008, Dr. Blackburn completed

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a Psychiatric/Psychological Impairment Questionnaire dated October 24,

2008. A.R. 321-329. Noting that plaintiff continued to be treated on

a monthly basis, Dr. Blackburn diagnosed dysthymia and mild mental

retardation / developmental delays. A.R. 321. Her current GAF was

55. Id. Dr. Blackburn opined that plaintiff was incapable of

tolerating even low stress at work. A.R. 327. 

On January 6, 2009, Scott Donaldson, Ph.D., a consulting

psychologist, examined plaintiff. A.R. 334-342. During the

evaluation, plaintiff was agitated but cooperative, and appeared to be

intimidated by the process. A.R. 334. Plaintiff was appropriately

dressed, adequately groomed, and she did not have difficulty

elaborating on her responses. A.R. 335. In contrast with prior

reports, plaintiff denied having any children and denied problematic

interfamilial relationships. A.R. 334. She reported chronic pain in

her back and knee and problematic relationships at work. A.R. 334-

335. She also reported relating poorly to teachers and other students

at school. A.R. 335. Plaintiff further reported that she was

enrolled in a special education program before dropping out of school. 

Id. Plaintiff complained of situational anxiety and excessive worry. 

A.R. 336. She denied delusions or hallucinations, but admitted to

paranoid ideation and obsessive thoughts about retaliation. Id. Dr.

Donaldson noted that plaintiff’s responses to questions indicated an

alert state of consciousness and did not manifest signs of confusion,

although her memory for past and recent events appeared limited. Id. 

He estimated that plaintiff’s intelligence fell in the intellectually

impaired range. Id. Dr. Donaldson also reported that plaintiff’s

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judgment is limited and suggested that she may need assistance in that

regard. Id. Although she earlier denied having children, plaintiff

reported living with her husband, son, two step-children and one stepchild’s girlfriend. Id. Noting that plaintiff may have responded

randomly to his inquiries, Dr. Donaldson reported that the results of

the MMPI-2 testing “are of questionable validity.” A.R. 337. On the

WAIS-IV, which Dr. Donaldson regarded as valid, plaintiff achieved a

verbal IQ score of 58, a performance IQ score of 54 and a full IQ

score of 55. Id. Dr. Donaldson diagnosed dysthymic disorder and

generalized anxiety disorder. A.R. 338. Dr. Donaldson deferred a

diagnosis of mild mental retardation because it was “not possible to

determine if the claimant’s intellectual deficit manifested itself

during the developmental period or whether there had been a

concomitant deficit in adaptive behavior[.]” Id. He opined that

plaintiff’s ability to understand, remember and carry out one- or twostep job instructions did not appear to be impaired; her ability to

perform repetitive tasks did not appear to be limited; her level of

motivation, interpersonal relationship skills and ability to withstand

stress and pressures associated with day-to-day work activity appeared

to be moderately limited. Id. 

Dr. Donaldson also completed a Medical Source Statement of

Ability to Do Work-Related Activities (Mental). A.R. 340-342. He

opined that plaintiff was markedly limited in her ability to make

judgments on simple work-related decisions and that she was moderately

limited in her ability to interact appropriately with the public and

with supervisor(s) and co-workers. A.R. 340-341. He also opined that

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plaintiff was unable to manage benefits in her own best interest. 

A.R. 342. 

At the administrative hearing on January 10, 2008, plaintiff

1

testified that she injured her left knee while she was a passenger in

a motor vehicle accident. A.R. 432-433. She described the pain in

this knee “like needles,” which is intermittent and which limits her

ability to walk and to move things. A.R. 437-439. She has difficulty

carrying laundry up and down steps. A.R. 439-440. Rest alleviates

the knee pain. A.R. 438-439.

Plaintiff also testified that she is depressed and stressed

primarily because of her concerns about family members and her son’s

health. A.R. 433-434, 444-46. Plaintiff is four feet, seven inches

tall and weighs eighty pounds. A.R. 433. She has a hard time keeping

food down, keeping weight on, and sleeping. A.R. 433-434, 444, 450. 

When she is stressed, she isolates herself and goes into a room to

cry. A.R. 445-446. Attending couples counseling with Dr. Blackburn

has helped her; her husband has been supportive. A.R. 447-448. 

Plaintiff’s son requires heart medication twice a day. A.R. 430-

432. Her son is also developmentally delayed. A.R. 436. Plaintiff

helps him with his homework by being there to “support him” and asking

him to read his books to her. A.R. 435-436, 443. 

Plaintiff testified that sometimes she can add, subtract, get

change while shopping at stores, and read the newspaper. A.R. 442-

443. She sometimes has problems with her concentration and memory and

As noted supra, administrative hearings were held on January 10, 2008,

1

December 9, 2008, and July 24, 2009. A.R. 362-456.

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forgets to return calls. A.R. 451. She was not in special education

classes in school. A.R. 428. 

At the administrative hearing held on December 9, 2008, plaintiff

testified that she leaves her home only with her husband. A.R. 393-

94. She cannot climb stairs because of her knee. A.R. 396-397. She

administers her son’s heart medication, helps him get ready for

school, and sometimes helps him get dressed or bathe himself. A.R.

397-99, 411. She helps him with his homework, including addition

problems in math class, and plays games with him. A.R. 400-01. 

According to plaintiff, her son reads better than she does. A.R. 402-

03. 

Plaintiff testified that she was in regular high school classes. 

A.R. 419-20. She can write, add and subtract, but cannot multiply or

divide. A.R. 403. She sometimes does the cooking at home, but her

husband does a lot of the cooking. A.R. 410-411. She held only one

job, as a clothes tagger in a thrift store, but quite after one month

after she was asked to pick up trash from the floor. A.R. 404. She

never worked thereafter because of her knee injury and depression. 

A.R. 404-09. She takes Ibuprofen for knee pain. A.R. 407-08.

Although plaintiff sometimes has difficulty getting along with

family members, she has no difficulty getting along with other people. 

A.R. 409-10. During a typical day, plaintiff watches television,

“lay[s] around a lot because it’s hard for me to clean[,]” and sits

around, talks and plays cards in the afternoon. A.R. 412-13. She

sometimes does the grocery shopping and light housework. A.R. 413-14. 

Sitting is her most comfortable position. A.R. 417. 

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At the administrative hearing held on July 24, 2009, plaintiff

testified that she currently weighs ninety pounds and takes Ensure to

help maintain her weight. A.R. 369-370. She experiences severe

depression a few times a week during which she avoids contact with

everyone. A.R. 370. Because her temper is affected by her

depression, she would have problems working closely with co-workers

and with supervisors who were critical of her and her work. A.R. 370-

71

Plaintiff also complained of headaches for which she takes

Ibuprofen. A.R. 372. She naps once a day for an hour or so. A.R.

372-73. She sometimes cooks, does the laundry and washes the dishes. 

A.R. 378. She provides medication to her 14 year old son and helps

bathe him. A.R. 374-75

The vocational expert noted that none of plaintiff’s past

employment as tagger, labeler, housekeeper and fast food worker lasted

longer than thirty days. A.R. 381. Asked to assume a claimant with

plaintiff’s vocational profile, a limitation to light work and the

mental limitations recommended by Dr. Donaldson, the vocational 2

expert testified that such a claimant could perform light, unskilled,

simple, repetitive work such as a cleaner (1100 jobs available locally

and 6,000 jobs available state-wide), as a labeler and marker (450

jobs locally and 3,500 jobs state-wide) and as a packer (2,000 jobs

These limitations include mild limitations in understanding and

2

remembering simple instructions and carrying out simple instructions and

responding appropriately to usual work situations and to changes in routine

work setting; moderate limitations in understanding and remembering complex

instructions, carrying out complex instructions, interacting appropriately

with the public, supervisors and co-workers; marked limitations in making

judgments on simple work-related decisions and making judgments on complex

work-related decisions. A.R. 338, 340-341.

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locally and 9,000 jobs state-wide). Id. Dr. Swearingen’s limitations3

would also permit such employment. A.R. 383.

Assuming Dr. Miser’s physical limitations – i.e., sitting for no

more than three hours and standing and walking for no more than one

hour out of an eight-hour day – such a claimant could not perform the

light, unskilled jobs previously described. Id. 

IV. Administrative Decision

In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of left knee arthritis, low

weight, borderline intellectual functioning/mild mental retardation,

and affective and anxiety-related disorders. A.R. 19-20. Plaintiff’s

impairments neither meet nor equal a listed impairment and leave her

with the residual functional capacity to perform a reduced range of

light work. A.R. 20-24. Relying on the testimony of the vocational

expert, the administrative law judge found that plaintiff’s residual

functional capacity permits her to perform work that exists in

significant numbers, including such jobs as a cleaner and

laborer/packer. A.R. 24-25. The administrative law judge therefore

concluded that plaintiff is not disabled within the meaning of the

Social Security Act. A.R. 25.

V. Discussion

In Plaintiff’s Statement of Errors, Doc. No. 9, she raises three

challenges to the administrative law judge’s conclusion: (1) the

administrative law judge erred in determining that plaintiff did not

Dr. Swearingen’s opinion is detailed supra at pp. 5-7. See also A.R.

3

112-113.

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have an impairment that meets or equals the criteria listed in Listing

12.05(B) or (C); (2) the administrative law judge failed to properly

weigh the medical source opinions; and (3) the administrative law

judge failed to properly evaluate plaintiff’s credibility. The Court

shall address each contention.

A. The administrative law judge’s finding that there was no

evidence of mental retardation during the developmental

period.

Plaintiff argues that the administrative law judge erred at step

three of the sequential evaluation because plaintiff has an impairment

that meets or equals the criteria of an impairment listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1 § 12.05(B) and (C), i.e., mental

retardation. Listing 12.05 requires, in pertinent part, the

following:

Mental retardation refers to significantly subaverage

general intellectual functioning with deficits in adaptive

functioning initially manifested during the developmental

period; i.e., the evidence demonstrates or supports onset of

the impairment before age 22.

The required level of severity for this disorder is met when

the requirements in A, B, C, or D are satisfied.

* * * *

B. A valid verbal, performance, or full scale IQ of 59 or

less;

OR

C. A valid verbal, performance, or full scale IQ of 60

through 70 and a physical or other mental impairment

imposing an additional and significant work-related

limitation of function[.]

Id. (emphasis added). Therefore, in order to meet Listing 12.05, a

mental impairment must satisfy both the description in the

introductory paragraph of § 12.05 (“i.e., the evidence demonstrates or

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supports onset of the impairment before age 22") and one of the four

sets of criteria listed in subparagraphs A through D. Foster v.

Halter, 279 F.3d 348, 354 (6th Cir. 2001). In this case, plaintiff

contends that she satisfied criteria under subsection (B) or ©. 

There is no dispute that plaintiff’s IQ scores satisfy the

requirements under Listing 12.05(B) and (C) and no dispute that

plaintiff had other severe impairments imposing a significant workrelated limitation of function. Instead, plaintiff challenges the

administrative law judge’s finding that there was no evidence of

mental retardation during the developmental period, i.e., before the

age 22. A.R. 19-20. In making this argument, plaintiff relies on

McPeek v. Sec’y of Health and Human Servs., No. 93-5204, 1994 WL 56929

(6th Cir. Feb. 24, 1994), for the proposition that “absent proof that

the claimant suffered some type of brain or neurological trauma after

the development period, an onset prior to age 22 must be assumed.” 

Statement of Errors, p. 14. See also Plaintiff’s Reply to Opposition

to Statement of Errors, Doc. No. 11 (“Reply”), pp. 2-3. The

Commissioner argues that plaintiff’s reliance on McPeek is misplaced. 

Doc. No. 10, pp. 9-12. 

In McPeek, the United States Court of Appeals for the Sixth

Circuit concluded that substantial evidence did not support the

Commissioner’s finding that the claimant functioned on an intellectual

level above the mental retardation range before age twenty-two.

McPeek, 994 WL 56929, at *2 (citing, inter alia, the Commissioner’s

medical expert who opined that a person’s mental ability remains

similar unless one suffers a brain or neurological trauma or due to

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the aging process or disease). In so finding, the Sixth Circuit noted

that plaintiff’s IQ scores fell within the mental retardation range

and that failing academic grades were consistent with someone with

significantly impaired performance before age twenty-two. Id. 

Even if McPeek stands for the broad proposition for which

plaintiff cites it, the Sixth Circuit has since rejected that

proposition because the Listing of Impairments has been amended since

McPeek was decided:

The McPeek decision applied an earlier version of the

Listing of Impairments, which has since been amended to

clarify that a claimant must establish both that he

currently has an IQ of 60 through 70 and that he exhibited

subaverage mental functioning and adaptive deficits during

his developmental period. See 65 Fed.Reg. 50746, 50776

(August 21, 2000); see also Foster, 279 F.3d at 354

(discussing the amendment). The reasoning in McPeek is thus

no longer consistent with the showing required by the

regulations, and this Circuit’s published case law has not

followed McPeek. See Foster, 279 F.3d at 354-55

(interpreting listing 12.05C to require separate evidence,

beyond present IQ scores, of deficits during the claimant’s

developmental period).

Turner v. Comm’r of Soc. Sec., No. 09-5543, 2010 WL 2294531, at *3

(6th Cir. June 7, 2010) (addressing claimant’s argument that McPeek

stands “for the proposition that, absent evidence that a claimant’s IQ

has declined, present IQ scores demonstrate significantly subaverage

intelligence and adaptive deficits during the developmental period”).

Plaintiff also argues that, even if McPeek is no longer

controlling authority, she has presented evidence of an onset during

the developmental period beyond her present IQ scores, i.e., the

“records that demonstrate[] her failing grades and need for cognitive

assistance while in school.” Reply, pp. 2-3. However, the record

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also includes evidence that plaintiff was not in special education

classes. A.R. 419-20, 428. Plaintiff herself testified that her

educational problems stemmed from desire to defy her mother. A.R.

110. There is therefore evidence that plaintiff’s failing grades were

the result of factors other than subaverage intellectual functioning. 

Moreover, the Sixth Circuit more recently has clarified that it “has

never held that poor academic performance, in and of itself, is

sufficient to warrant a finding of onset of subaverage intellectual

functioning before age twenty-two.” Hayes v. Comm’r of Soc. Sec., No.

09-5409, 357 Fed. Appx. 672, at *677 (6th Cir. Dec. 18, 2009). 

Plaintiff next attacks the administrative law judge’s finding

that plaintiff’s current level of functioning, e.g., currently

literate, carrying out household chores and caring for a special needs

son, is inconsistent with a conclusion that she experienced deficits

in adaptive functioning prior to age 22. Reply, p. 3. However, as

noted supra, Listing 12.05 expressly requires evidence of a “deficit

in adaptive functioning” prior to the age of 22. See also Turner,

2010 WL 2294531, at *492 (noting that adaptive functioning includes

social skills, communication, and daily living skills). A claimant’s

current functioning may be considered in making this determination. 

See Hayes, 357 Fed. Appx. at 677 (finding no deficits in adaptive

functioning where, inter alia, plaintiff cared for herself and

husband, shopped, cooked meals, did laundry, managed finances, and

takes public transportation); Burrell v. Comm’r of Soc. Sec., No.

99-4070, 2000 WL 1827799, at *2 (6th Cir. Dec. 8, 2000) (noting that

the claimant “has remained fairly active, maintains an interest in his

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household, and enjoys apparent satisfactory relationships with family

members. He drives and can lift small weights with both arms” and

therefore “is still physically capable of earning a living and

contributing to society”). Accordingly, this circuit’s precedent

supports the administrative law judge’s reference to plaintiff’s

adaptive functioning in this case. 

Viewing the record as a whole, therefore, the Court concludes

that the administrative law judge’s finding that plaintiff does not

have an impairment that meets or equals the criteria of Listing

12.05(B) or (C) enjoys substantial support.

B. The administrative law judge’s evaluation of the medical

source opinions.

Plaintiff next argues that the administrative law judge failed to

properly weigh the medical source opinions, contending that the

opinions of Dr. Blackburn, a treating psychologist, and Dr. Miser, a

treating physician, were improperly rejected. Statement of Errors,

pp. 16-19; Reply, p. 2. To be afforded controlling weight, the

opinion of a treating physician must be well-supported by medically

acceptable clinical and laboratory diagnostic techniques, and must not

be inconsistent with other substantial evidence in the record. Rogers

v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007); 20 C.F.R. §

416.927(d)(2). In weighing the opinions of treating physicians, an

administrative law judge must consider such factors as the length,

nature and extent of the treatment relationship, the frequency of

examination, the medical specialty of the treating physician, the

opinion’s supportability by evidence, and its consistency with the

record as a whole. 20 C.F.R. § 416.927(d)(2) - (6); Wilson v. Comm’r

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of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Even where the

administrative law judge declines to accord controlling weight to the

opinion of a treating physician, the administrative law judge “must

still determine how much weight is appropriate. . . .” Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). Moreover, an

administrative law judge must provide “good reasons” for discounting

the opinions of a treating physician, i.e., “reasons that are

‘sufficiently specific to make clear to any subsequent reviewers the

weight the adjudicator gave to the treating source’s medical opinion

and the reasons for that weight.’” Rogers, 486 F.3d at 242 (citing

Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 9, at *12, 1996 WL 374188, at

*5). 

The administrative law judge in this case rejected Dr. Miser’s

assessment that plaintiff was substantially limited in her ability to

work.

William Miser, M.D., opined that the claimant was limited to

a substantially reduced range of sedentary work that is

incompatible with fulltime work activity. . . ., but Dr.

Miser’s assessment appears to be based primarily on the

claimant’s subjective complaints of pain rather than any

objective evidence. The claimant’s treatment notes document

only very conservative care with no indication of the

frequency and intensity of pain reported to Dr. Miser.

Further, as summarized in this decision, the claimant’s

actual level of activities of living are inconsistent with

her subjective report to Dr. Miser. Accordingly, Dr.

Miser’s assessment is rejected.

* * * *

Dr. Miser suggested that the claimant was incapable of even

low stress work and that pain would frequently interfere

with attention and concentration. . . . However, Dr. Miser

is not a mental health professional and the claimant’s

complaints of pain, as noted above, are inconsistent with

the objective medical treatment record. Dr. Miser’s opinion

appeared to be based on the assessment of Dr. Blackburn, the

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claimant’s treating psychologist, who has reported a mental

functional capacity suggesting an inability to perform

competitive work. . . .

A.R. 23 (citation to record omitted). However, the administrative law

judge also considered, but rejected, Dr. Blackburn’s conclusions. 

William Blackburn, Ph.D., a psychologist, suggested that the

claimant was limited to sedentary work . . . but Dr.

Blackburn is a mental health professional and did not treat

the claimant for physical conditions. As a psychologist, he

lacks the expertise to make such an assessment.

* * * *

[Dr. Blackburn] reported a mental functional capacity

suggesting an inability to perform competitive work and

consistent with marked mental work-related limitations. . .

. It is concluded that Dr. Blackburn’s assessments are based

substantially on the subjective presentation and reports of

the claimant, which are not entirely credible. Therefore,

Dr. Blackburn’s assessments are rejected.

Id. (citation to record omitted). This Court agrees that Dr.

Blackburn’s assessments in this regard are entitled to little weight.

The administrative law judge found that plaintiff’s subjective

complaints were disproportionate and not supported by the record. 

This conclusion finds substantial support in Dr. Donaldson’s report

following his consultative examination of the plaintiff. For example,

Dr. Donaldson noted that plaintiff’s responses to questions indicated

an alert state of consciousness with no signs of confusion. A.R. 336. 

Plaintiff was appropriately dressed, adequately groomed, and she had

no difficulty elaborating on her responses. A.R. 335. Dr. Donaldson

opined that plaintiff’s ability to understand, remember and carry out

one- or two-step job instructions did not appear to be impaired and

that her ability to perform repetitive tasks did not appear to be

limited. A.R. 338. He further opined that her level of motivation,

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interpersonal relationship skills and ability to withstand stress and

pressures associated with day-to-day work activity appeared to be only

moderately limited. Id. Further support for the administrative law

judge’s finding in this regard is found in the records of Dr.

Swearingen, who performed a consultative psychological evaluation. 

A.R. 109-113. Dr. Swearingen opined that plaintiff’s ability to

relate to others, including fellow workers, and her mental ability to

maintain attention, concentration, persistence, and pace to perform

repetitive tasks were only mildly impaired, A.R. 113, and that

plaintiff’s mental ability to understand, remember, and follow

instructions and her mental ability to withstand stress and pressures

of day-to-day work activity were only mildly to moderately impaired. 

Id. In short, the Court concludes that the administrative law judge

did not err in his evaluations of the medical opinions reflected in

the record.

Plaintiff’s insistence that Dr. Blackburn’s opinion was “based

upon clinical and diagnostic findings,” Statement of Errors, p. 17

(citing A.R. 283, 330-331), does not militate a different result. As

an initial matter, two of the pages in the record to which plaintiff

cites are simply letters that Dr. Blackburn wrote that do not provide

evidence of objective findings. A.R. 330-331. The third page cited

by plaintiff is simply a form taken from an evaluation in June 2006

with some boxes checked reflecting “clinical findings,” containing

very little explanation for the findings. A.R. 283. Moreover,

plaintiff points to no treatment note detailing objective findings to

support Dr. Blackburn’s conclusion that plaintiff has marked mental

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work-related limitations. Instead, the record reflects that plaintiff

saw Dr. Blackburn sporadically for family counseling from 2005 through

2007. See, e.g., A.R. 291-99. In early 2005, Dr. Blackburn noted

that plaintiff’s prognosis was “fair” and that she would not require

treatment for more than nine months. A.R. 129. Taken together with

ample instances of plaintiff’s adaptive functioning discussed supra,

the Court is persuaded that the administrative law judge did not err

in his evaluation of the opinions of Drs. Miser and Blackburn. 

C. The administrative law judge’s evaluation of plaintiff’s

credibility.

Finally, plaintiff challenges the administrative law judge’s

assessment of plaintiff’s credibility, arguing that her marginal daily

activities were not inconsistent with her allegations concerning the

intensity, persistence and limiting effects of her symptoms. 

Statement of Errors, pp. 19-20. Plaintiff also contends that the

administrative law judge erred when he relied upon his lay

observations of plaintiff during the hearing. Id. at 20. 

An administrative law judge’s findings concerning the credibility

of a claimant’s testimony about her pain or other symptoms “are to be

accorded great weight and deference, particularly since an

administrative law judge is charged with the duty of observing a

witness's demeanor and credibility.” Walters v. Comm’r of Soc. Sec.,

127 F.3d 525, 531 (6th Cir. 1997). “Nevertheless, an administrative

law judge’s assessment of a claimant’s credibility must be supported

by substantial evidence.” Id. The Commissioner, speaking through the

Rulings, mandates in part:

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The reasons for the credibility finding must be grounded in

evidence and articulated in the determination or decision.

It is not sufficient to make a conclusory statement that

“the individual’s allegations have been considered” or that

“the allegations are (or are not) credible.” It is also not

enough for the adjudicator to simply recite the factors that

are described in the regulations for evaluating symptoms.

The determination must contain specific reasons for the

finding on credibility, supported by evidence in the case

record, and must be sufficiently specific to make clear to

the individual and to any subsequent reviewers the weight

the adjudicator gave to the individual’s statements and the

reasons for that weight.

SSR 96-7p, 1996 SSR LEXIS 4, 1996 WL 374186.

In the case presently before the Court, the administrative law

judge did not err in his analysis of the evidence relating to

plaintiff’s allegations of disability and the limiting effects of her

alleged symptoms. The administrative law judge analyzed plaintiff’s

credibility and subjective complaints as follows:

The claimant testified that she continues to experience

depression and anxiety but reports some improvement with

medications. She denied any side effects from her

medications. She said that she continues to be

uncomfortable around others and becomes badly depressed

about twice a week. She stated that she has difficulty

accepting criticism from others and is unable to control her

temper. She said that she weighs 70 pounds. She

represented that she has a torn ligament in her left knee

and continues to have related pain. She testified that she

has headaches that she controls with ibuprofen. After

careful consideration of the evidence, it is concluded that

her medically determinable impairments could reasonably be

expected to cause some of her alleged symptoms; however, her

statements concerning the intensity, persistence, and

limiting effects of those symptoms are not credible to the

extent that they are inconsistent with the residual

functional capacity outlined in this decision.

The record confirms that the claimant has a left knee

condition and low weight, but her treatment has been

intermittent and very conservative. Although she testified

that she weighs just 70 pounds, her height is just four

feet, seven inches, and there is no evidence of substantial,

related conditions. There is no objective evidence to

suggest that her weight or her knee condition would prevent

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her from engaging in a full range of light exertional work,

as was found in the prior ALJ decision. . . . 

* * * *

The claimant’s subjective complaints are clearly

disproportionate to and not supported by the objective and

substantial evidence in the record. Her actual level of

adaptive functioning is inconsistent with her IQ scores. 

Indeed, Dr. Donaldson observed that the claimant was

appropriately dressed, adequately groomed, alert, and fully

oriented, with no manifested signs of confusion. . . .

According to Dr. Donaldson, there was no evidence of

impulsiveness, compulsiveness, difficulty elaborating on

responses, manifestations of flights of ideas, symptoms of

mania, or anhedonia. The claimant reported that she watched

television, cared for her son, cooked, cleaned, did the

laundry, maintained friendships, and shopped for groceries

monthly. The claimant had completed her own disability

forms. . . . She reported that she played cards and

socialized. . . . She reported that she had never been fired

from a job and enjoyed playing cards and working crossword

puzzles. . . . She denied any difficulty managing her money

and reported good reading, writing, and spelling skills. . .

.

Furthermore, the claimant’s testimony was extremely

argumentative and exaggerated. She exhibited an

inconsistent demeanor. She was observed to attend the

hearing proceedings closely and fully without any noted

distractions or overt pain behavior. Her level of activity

and her self described ability is not consistent with the

level and persistence of symptoms and limitations that she

alleges, including her testimony that she can only sit for

15 minutes, and walk for less than a block. . . . She

testified that she cleans some laundry and washes some

dishes, but then said that her disabled husband does the

cooking. She acknowledged that she quit a job tagging

clothes at a thrift store because she was asked to also pick

up trash, not because of any particular disability. Rather,

she testified that she did not have any difficulty

whatsoever tagging clothes.

The evidence discloses that the claimant has required only

very conservative treatment. There is no documentation of

significant, persistent side effects from her medications,

and she has not been regularly taken [sic] her medication. 

In summary, the location, duration, frequency, and intensity

of her alleged symptoms, as well as precipitating and

aggravating factors, are adequately addressed and

accommodated in the residual functional capacity outlined in

these findings.

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A.R. 23-24 (citations to the record omitted). “[A]n ALJ’s findings

based on the credibility of the applicant are to be accorded great

weight and deference, particularly since an ALJ is charged with the

duty of observing a witness’s demeanor and credibility.” Id. citing

Villarreal v. Sec’y of Health and Human Servs., 818 F.2d 461, 463 (6th

Cir. 1987). This Court concludes that the administrative law judge’s

credibility determination applied all appropriate standards and enjoys

substantial support in the record.

In short, the Court concludes that the decision of the

Commissioner is supported by substantial evidence and must therefore

be affirmed.

It is therefore RECOMMENDED that the decision of the Commissioner

be affirmed and that this action be dismissed.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

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See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 23, 2012 s/Norah McCann King 

 (Date) Norah M Cann King c

 United States Magistrate Judge

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