IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Patty L. Shackleford, :

Plaintiff, :

v. : Case No. 2:10-cv-1052

Commissioner of Social Security, JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

 Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Patty L. Shackleford, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for a period of disability and social

security disability benefits and for supplemental security

income. Those applications were filed on May 11, 2005, and

alleged that plaintiff became disabled on January 25, 2005. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on March

10, 2008. A supplemental hearing was held on July 11, 2008. In

a decision dated September 10, 2008, the ALJ denied benefits. 

That became the Commissioner’s final decision on September 23,

2010, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on February 3, 2011. Plaintiff filed her

statement of specific errors on March 3, 2011. The Commissioner

filed a response on April 7, 2011. No reply brief has been

filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the first administrative hearing is

found at pages 370 through 392 of the record. She also testified

at the supplemental hearing, and her testimony at that hearing

appears at pages 412 through 415. The following is a summary of

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the facts to which plaintiff (who was 45 years old at the time of

the hearing and has a high school education) testified.

First, plaintiff said that she had actually worked for nine

days after the date she claimed she became disabled. She went

back to a job at a cabinet factory, but she was unable to perform

that job and the employer “escorted [her] off the property and

told [her] not to come back.” She had not worked thereafter.

She had previously worked for that employer, Mills Pride,

from 1999 to 2005. She injured her shoulder trying to clear a

jam in a cutting machine. Before that job, she had done food

preparation in a restaurant and worked in an aluminum factory. 

Plaintiff has had carpal tunnel surgery on both wrists. She

has difficulty using her hands. She also has arthritis in her

back from an old fracture at T11, and pain in her left shoulder

from the industrial accident. Additionally, the cartilage in her

right knee is disappearing, and she has problems with both feet. 

She has also been treated for depression.

From a physical standpoint, plaintiff can lift about ten

pounds and walk less than a block. She has difficulty climbing

stairs. She drives very occasionally and does her own laundry

and cooking. She has dropped things around the house, including

her grandchildren. By the time of the supplemental hearing, her

walking had gotten worse and she was having tingling and numbness

in her hands and arms. 

III. The Medical Records

The medical records in this case are found beginning on page

127 of the administrative record. They can be summarized as

follows. This summary will focus on educational records and

records relating to plaintiff’s claimed psychological

impairments, because her sole assignment of error deals with that

issue.

Plaintiff never underwent a long-term course of treatment by

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a mental health specialist. However, she was treated for anxiety

by her family doctor, Dr. Frazier, from at least April 24, 2003. 

(Tr. 160). He prescribed Wellbutrin for her at that time. Later

notes from his office reflect a diagnosis of depression. She was

seen in the emergency room in 2007 after a domestic altercation

and it was noted that she had a prior diagnosis of an affective

disorder. (Tr. 278). She was discharged from that visit as

emotionally stable and no medications were prescribed. (Tr.

280).

Because of these indications of some psychological

impairment, the ALJ noted, at the conclusion of the first

administrative hearing, that the record was not complete enough

for him to make a decision, and he ordered a “psychological

consult.” (Tr. 402). Plaintiff was then referred to Dr. Tanley,

a psychologist, for an evaluation.

The evaluation took place on April 11, 2008. Dr. Tanley’s

assistant administered two tests, the Wechsler Adult Intelligence

Scale-III and the WRAT-4. Plaintiff said she had never seen a

psychologist before. She was generally cooperative but did not

put forth a full effort on testing and complained about the

process. Most of her cognitive functions appeared to be below

average. The results of the testing were not considered to be

valid because of her lack of effort, although the scores

indicated mild mental retardation (a verbal IQ of 62, a

performance IQ of 81, and a full-scale IQ of 68). The same lack

of validity was noted on the WRAT-4. Dr. Tanley deferred a

diagnosis with respect to the matters tested and recommended that

school records be obtained. Plaintiff’s GAF was rated at 80. 

Dr. Tanley thought plaintiff was moderately impaired “for today”

in her ability to relate to others and he found no impairment in

her ability to deal with stress. He could not evaluate her

ability to understand and follow simple instructions or perform

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simple, repetitive tasks. (Tr. 326-29).

Some school records were obtained after this evaluation. 

They appear at pages 125-26 of the administrative record. They

are not particularly illuminating, and show she was ranked 322d

out of 366 students and received Cs and Ds in most of her

classes, with one B and one F recorded.

 IV. The Medical Expert’s Testimony

A medical expert, Dr. Kendrick, also provided testimony

during the administrative proceedings (Tr. 390-95). He noted

that plaintiff had bilateral carpal tunnel releases in 2002 and

suffers from neuropathy on the right side. She also had

tedonpopathy of the left shoulder with surgery in 2007. She had

some degenerative disc disease at L2-3 and had surgery for

plantar fasciitis. Dr. Kendrick believed that with these

impairments, plaintiff could do light work with some restrictions

on climbing or using foot controls and reaching overhead with her

left hand. 

V. The Vocational Testimony

Dr. Olsheski, a vocational expert, testified at the first

administrative hearing. He characterized plaintiff’s past work

as medium and either unskilled or semi-skilled, except for the

food preparation position, which was light and unskilled. He was

asked to assume that plaintiff had the limitations described by

Dr. Kendrick. With those limitations, she could not do her past

work except for the food preparation job. That job would be

eliminated if plaintiff could perform fingering frequently but

not constantly. However, even with that restriction, she could

do other light unskilled jobs. If she could handle and finger

only occasionally, however, there would be no jobs that she could

perform. (Tr. 396-402).

At the supplemental administrative hearing, a different

vocational expert, Mr. Walker, was called to testify. He was

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asked to take into account some psychological limitations

concerning interaction with others and the performance of only

simple work. With those limitations and the prior physical

limitations identified by Dr. Kendrick, Mr. Walker believed

plaintiff could still do such jobs as cafeteria attendant, stock

clerk and order filler, or mail clerk. He also testified to the

numbers of such jobs in the economy. (Tr. 415-23).

 VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 12

through 27 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act up

to December 31, 2010. The ALJ next found that plaintiff had not

engaged in substantial gainful activity from her alleged onset

date forward, and that the time she worked after that date was an

“unsuccessful work attempt.”

As far as her impairments are concerned, the ALJ found that

plaintiff had severe impairments including carpal tunnel

syndrome, bilaterally, status post three surgeries; degenerative

joint disease of the left shoulder, status post decompressive

surgery; degenerative disc disease of the cervical, thoracic, and

lumbar spine; plantar fasciitis; degenerative joint disease of

the right knee; obesity; depressive disorder; and borderline

intellectual functioning. He also found that these impairments

did not meet or equal the requirements of any section of the

Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix

1).

As far as plaintiff’s limitations were concerned, the ALJ

found that plaintiff had the residual functional capacity to

perform a full range of light work except that she could walk or

stand for only an hour at a time, could only occasionally use

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foot controls, climb stairs, or reach overhead with her left arm,

that she could not work around unprotected heights or hazardous

machinery, and could do only simple work in an environment where

she had only occasional interactions with co-workers,

supervisors, or the general public. With these limitations,

although plaintiff could not do her past relevant work, she could

do those jobs which Mr. Walker identified. The ALJ further found

that these jobs existed in substantial numbers in the regional

economy. As a result, the ALJ concluded that plaintiff had not

demonstrated an entitlement to benefits.

VII. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises only a

single issue. She contends that the ALJ erred by relying on the

report from Dr. Tanley concerning her psychological symptoms, and

that additional testing should have been ordered. To the extent

that this issue questions the factual basis for the ALJ’s

decision, the Court reviews that decision under this legal

standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

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supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Shortly after plaintiff saw Dr. Tanley, her attorney wrote

to the ALJ and argued that the testing process was invalid. He

asserted that plaintiff was evaluated at the same time as two

other individuals, spoke to Dr. Tanley for only six minutes, and

felt that she was not treated professionally or respectfully

during the test process. He asked for both a supplemental

hearing and additional testing. (Tr. 37). Dr. Tanley responded

to these claims by noting that he spent 31 minutes with

plaintiff, that he explained the reason for the tests being

administered, and that his assistant accurately reported

plaintiff’s oppositional behavior during testing. He also noted

that the test results, despite their invalidity, were

inconsistent with a diagnosis of mental retardation and that

there was nothing else in the examination suggesting that

plaintiff functioned in that range. (Tr. 336-37).

In her statement of errors, plaintiff argues that without

valid testing, the ALJ was not in a position to assess whether

plaintiff had any psychological impairments, and particularly

whether she suffers from mild mental retardation. Plaintiff

cites to Stewart v. Heckler, 730 F.2d 1065 (6th Cir. 1984) for

the proposition that “the report of a consulting physician, not

containing any opinion regarding a claimant’s functional

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abilities, did not support a decision denying disability

benefits.” Plaintiff’s Statement of Errors, Doc. #11, at 18.

It is somewhat difficult to see the relevance of the Stewart

case. There, the court disregarded the opinion of a Dr. Thurman

(whose opinion is not summarized in the brief opinion issued by

the Court of Appeals) because his medical group had been

submitting fraudulent reports in social security cases. It then

remanded the case for an award of benefits because the claimant’s

treating doctor had found him disabled and there was no contrary

evidence in the record.

Apart from the Stewart decision, plaintiff has cited no

other case law supporting her argument that a remand is needed in

this case because Dr. Tanley was unable to use the test results

to evaluate her functional level. As the Commissioner’s

memorandum in opposition points out, there was other evidence in

the record from which the ALJ concluded that plaintiff did not

have any significant level of dysfunction due to psychological

conditions and that she functioned at least in the range of

borderline intelligence. She had a significant work history,

including semi-skilled work, she cared for herself and her

grandchildren, she graduated from high school, and there is no

evidence that she was in special education classes. There is no

evidence of any deficits in adaptive functioning prior to age 22,

which evidence would have to be present in order for plaintiff to

prove she suffered from mental retardation. See Foster v.

Halter, 279 F.3d 348, 354 (6th Cir. 2001). Even without any real

evidence of psychological limitations, the ALJ imposed some

restrictions on plaintiff’s ability to deal with others and to

perform work other than simple, one- and two-step tasks. The

record amply supports the conclusion that she was no more limited

than that. 

In this case, it is likely that the ALJ would have acted

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within the scope of his discretion not to obtain a consultative

psychological examination at all. If “the record [is]

sufficiently fully developed to enable the ALJ to make a

determination,” such an examination need not be ordered. Peebles

v. Chater, 85 F.3d 629, *5 (6th Cir. May 6, 1996) (unreported),

citing Landsaw v. Secretary of Health & Human Servs., 803 F.2d

211, 214 (6th Cir. 1986). Here, the ALJ could easily have found

that the scant evidence of a psychological disorder of any kind

(and plaintiff did not assert disability on that basis) was

enough to allow him to dispense with a consultative examination. 

That being so, the fact that the examination did not produce

complete results - largely due to the plaintiff’s own lack of

effort - did not change the fact that the record, including the

two reports from Dr. Tanley, was sufficient for the ALJ to

determine that if plaintiff had a cognitive disorder, it was no

more than borderline intellectual functioning, and that it did

not prevent plaintiff from being able to perform simple tasks -

tasks much simpler than the ones she had been able to do when she

was working. Thus, there was no basis for the ALJ to apply

Section 12.05(C) of the Listing of Impairments, which is what

would usually happen if a claimant is found to be even mildly

mentally retarded, nor any basis for more severe limitations than

those incorporated into the ALJ’s residual functional capacity

finding. Consequently, there is no error here and no basis for a

remand.

 VIII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that the Clerk

be directed to enter judgment in favor of the defendant

Commissioner of Social Security.

IX. Procedure on Objections

If any party objects to this Report and Recommendation,

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that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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