IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JERRY L. ANGELO, 

Plaintiff,

vs. Civil Action 2:11-cv-362

Judge Marbley

Magistrate Judge King 

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42

U.S.C. §405(g) for review of a final decision of the Commissioner of

Social Security denying plaintiff’s application for disability

insurance benefits. This matter is now before the Court on

plaintiff’s Statement of Specific Errors, Doc. No. 16, the

Commissioner’s Memorandum in Opposition, Doc. No. 22, and plaintiff’s

Reply, Doc. No. 23.

Background and Administrative Decision

Plaintiff Jerry L. Angelo was born in 1958. He has a ninth

grade education and prior relevant work experience as a maintenance

man, delivery person, mechanic and press operator. Plaintiff

originally filed his application for benefits on September 13, 2002

alleging that he has been disabled since April 15 of that year. After

final administrative proceedings, this Court reversed the decision of

the Commissioner denying benefits and remanded the matter for further

consideration of plaintiff’s obesity in light of Social Security

Ruling 02-01p, 2000 WL 628049 (Sept. 12, 2002). Angelo v. Commissioner

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of Social Security, 2:07-cv-796 (S.D. Ohio August 22, 2008).

On April 14, 2009, a supplemental administrative hearing was

held at which plaintiff, represented by counsel, appeared and again

testified, as did a medical expert and a vocational expert. In a

decision issued June 1, 2009, the administrative law judge found that

plaintiff suffers severe physical and mental impairments but that

those impairments neither meet nor equal a listed impairment. In this

regard, the administrative law judge specifically found that

plaintiff’s cognitive functioning does not satisfy Listing 12.05C,

which addresses mental retardation. The administrative law judge

found that plaintiff has the residual functional capacity for

sedentary exertion, with certain environmental restrictions; from a

mental standpoint, plaintiff was only mildly impaired in his ability

to relate to others, understand, remember and follow instructions,

maintain attention, concentration, persistence and pace to perform

simple repetitive tasks and withstand the stress and pressure

associated with day-to-day work activities. A.R. 827. Relying on the

testimony of the vocational expert, the administrative law judge found

that this residual functional capacity permitted the performance by

plaintiff of work that exists in significant numbers in the national

economy. Accordingly, the administrative law judge concluded that

plaintiff was not, at any time prior to the lapse of his insured

status, disabled within the meaning of the Social Security Act. A.R.

836.

In his Statement of Errors, plaintiff challenges only the

Commissioner’s determination that plaintiff’s cognitive functioning

does not render him disabled. The Court will therefore summarize only

that evidence relevant to that contention.

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Standards

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 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.

Listing 12.05 requires, under appropriate circumstances, a

finding of disability based on the claimant’s mental retardation:

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

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is met when . . . 

(C) [The claimant has demonstrated] a valid

verbal, performance, or full scale IQ of 60

through 70 and a physical or other mental

impairment imposing an additional and significant

work-related limitation of function.

20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05(C). A claimant must

establish three elements in order to satisfy Listing 12.05C: that he

experiences “significantly subaverage general intellectual functioning

with deficits in adaptive functioning [that] initially manifested

during the developmental period” (i.e., the diagnostic description);

(2)that he has a “valid verbal, performance, or full scale IQ of 60

through 70;" and (3) that he suffers from “a physical or other mental

impairment imposing an additional and significant work-related

limitation of function.” Id. See also Foster v. Harris, 279 F.3d

348, 354-55(6th Cir. 2001). Under the Social Security regulations,

“loss of adaptive functioning” is “manifested by difficulties in

performing activities of daily living, maintaining social

relationships, or maintaining concentration, persistence, or pace.” 

20 C.F.R., Pt. 404, Subpt. P., App. 1 §12.00C4. See also West v.

Comm’r Social Sec. Admin., 240 Fed. Appx. 692, 698 (6th Cir.

2007)(“Adaptive functioning includes a claimant’s effectiveness in

areas such as social skills, communication, and daily living skills”). 

Present IQ scores do not alone establish that the claimant suffered

subaverage intellectual functioning or deficits in adaptive

functioning during the developmental period. “A claimant must produce

evidence beyond his present IQ scores to show that he exhibited

deficits during his developmental period.” Turner v. Comm’r of Soc.

Sec., 381 Fed. Appx. 488, 491-92 (6th Cir. 2010), citing Foster, 279

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F.3d at 354-55.

Evidence and Discussion

In April 2003, James Spindler, M.S., performed a

consultative examination of plaintiff at the request of the state

agency. On clinical examination, plaintiff appeared to perform in the

borderline range of intelligence. A.R. 299. On the WAIS -III,

however, plaintiff achieved a verbal IQ score of 66, a performance IQ

score of 74 and a full scale IQ score of 66, which place him in the

mild mental retardation range. A.R. 300. On the WRAT-III (Reading)

test, plaintiff read at the 3rd garde level. Mr. Spindler diagnosed,

inter alia, borderline intellectual functioning, A.R. 301, and opined

that plaintiff was mildly impaired in work-related areas. A.R. 301-

02.

In July 2007, and again in August 2007, Joan Williams,

Ph.D., a state agency psychologist, reviewed the record and concluded

that plaintiff’s mental impairments neither met nor equaled Listings

12.04 (affective disorders) and 12.06 (anxiety-related disorders).

A.R. 958, 965. The psychologist did not, apparently, consider List

12.05. Id. That assessment was affirmed in January 2008 by Caroline

Lewin, Ph. D., another reviewing psychologist.

In June 2008, Gary Wolfgang, Ph.D., performed a consultative

psychological evaluation of plaintiff. On the WAIS-III, plaintiff

achieved a verbal IQ score of 56, a performance IQ score of 56 and a

full scale IQ score of 52, placing him in the moderate range of mental

retardation. A.R. 1041. Other index scores placed plaintiff in the

mild range of mental retardation. Id. Plaintiff’s performance on the

WRAT-4 also fell within the mild mental retardation range. A.R. 1043. 

Based on plaintiff’s reported history, Dr. Wolfgang concluded that

plaintiff’s adaptive functioning was higher than moderate mental

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retardation. According to Dr. Wolfgang, plaintiff demonstrated

limitations consistent with mild mental retardation, a result that

could be explained by the presence of a mood disorder or malingering,

although the latter explanation was unlikely in light of the

consistency of plaintiff’s test results. Id. Dr. Wolfgang suggested

that plaintiff’s school records, if still available, be obtained. 

Without those records, Dr. Wolfgang offered mild mental retardation as

only a provisional diagnosis.

In an assessment of plaintiff’s mental residual functional

capacity, Dr. Wolfgang indicated that plaintiff was markedly limited

in a number of work-related areas, including in his ability to

complete a normal workday and workweek without interruptions from

psychologically based symptoms and ability to interact appropriately

with the general public and to get along with co-workers. A.R. 1045. 

According to Dr. Wolfgang, plaintiff was “unemployable.” A.R. 1046.

Asked at the supplemental hearing to assume the limitations

found by Dr. Wolfgang, the vocational expert testified that those

limitations would preclude the performance of jobs identified by him

as otherwise available to a claimant with plaintiff’s vocational

profile. A.R. 1279.

Plaintiff’s school records from 8th and 9th grade were

thereafter located. A.R. 937-38. Those records reflect grades of Cs,

Ds and an F; there is no indication that plaintiff was assigned to

special education classes. Although the photocopy of test results is

unclear, it appears that, on aptitude testing, plaintiff achieved a

verbal IQ score of 72, a performance IQ score of 70 and a full scale

IQ score of 71. A.R. 938. At the supplemental administrative

hearing, the administrative law judge read this record as reflecting

“IQs in the 70s.” A.R. 1282.

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In her decision, however, the administrative law judge

characterized plaintiff’s cognitive impairment as borderline

intellectual functioning. A.R. 819. Although she recognized the

apparently qualifying IQ scores on the tests administered by Dr.

Wolfgang and Mr. Spindler, the administrative law judge found no

evidence of an onset of intellectual impairment or adaptive deficits

before age 22. In this regard, the administrative law judge was not

persuaded by plaintiff’s school records:

The first page lists the claimant’s grades for

seventh, eighth and ninth grades. While these

grades are low, they could be low for a number of

reasons and not due to any intellectual

impairment. The second page lists

extracurricular activities the claimant was

involved in, as well as scores of aptitude tests. 

However, the typed print is faded and thus

unclear regarding the type of aptitude tests, the

claimant’s scores, and how he ranked among peers. 

Thus, such evidence does not support a finding

that the claimant had a severe intellectual

impairment before age 22.

A.R. 826. Furthermore, the administrative law judge found that

plaintiff’s activities and work history did not support a finding of

onset during the developmental period. Id.

The administrative law judge went on to find that, from a

mental standpoint, plaintiff was only mildly impaired in his ability

to engage in work-related functions. A.R. 827. In making this

finding, the administrative law judge relied on the opinions of the

state agency reviewing psychologists and Mr. Spindler.1 The

administrative law judge discussed Dr. Wolfgang’s assessment as

follows:

On the [IQ test] scores alone, Dr. Wolfgang

diagnosed the claimant with mild mental

1

The administrative law judge erroneously refers throughout the

administrative decision to Mr. Spindler as “Dr.”

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retardation. However, he added that it was only

a provisional diagnosis because of the absence of

contradictory findings (such as the claimant’s

school records). He also added that it was

possible that the claimant’s scores were low

because he was malingering. Thus, Dr. Wolfgang’s

diagnosis was not a concrete diagnosis of mental

retardation, nor were the claimant’s scores

substantiated by other objective evidence.

A.R. 832. The administrative law judge made no mention whatsoever of

Dr. Wolfgang’s assessment of plaintiff’s mental residual functional

capacity, A.R. 1045, in which Dr. Wolfgang expressed his opinion that

plaintiff was “markedly” impaired in a number of work-related areas of

functioning.

This Court concludes that the administrative law judge’s

assessment of plaintiff’s cognitive functioning is not supported by

substantial evidence. The administrative law judge rejected the

apparently qualifying IQ scores on tests administered by Dr. Wolfgang

and Mr. Spindler, in part, because they were not corroborated by

plaintiff’s school records which, although apparently legible to the

administrative law judge at the hearing, were later determined by her

to be illegible.2 Of more significance is the administrative law

judge’s complete failure to evaluate – or indeed even acknowledge –

Dr. Wolfgang’s assessment of plaintiff’s mental residual functional

capacity. An administrative law judge is obligated to consider and

weigh all the medical evidence. 20 C.F.R. §404.1527(d). Her failure

to do so in connection with Dr. Wolfgang’s assessment cannot be

overlooked, because the vocational expert testified that the

2

The numbers entered on plaintiff’s records are legible; it is only the

preprinted form language that is difficult to read. The Court assumes, perhaps

incorrectly, that school test records from the relevant era were relatively

standardized. If so, it might be that an expert familiar with school records

from that era could assist the administrative law judge in making sense of the

information contained in those records.

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limitations noted by Dr. Wolfgang in that assessment would be work

preclusive.

It is therefore RECOMMENDED that the decision of the

Commissioner be reversed and that the action be remanded for further

consideration of plaintiff’s cognitive functioning.

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.

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).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

July 31, 2012

Date

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