IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

REBECCA OLIVER,

Plaintiff,

vs. Civil Action 2:11-cv-447

Judge Sargus

Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This is an action institute 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 applications for disability insurance

benefits and supplemental security income. This matter is now before

the Court on plaintiff’s Statement of Specific Errors, Doc. No. 14,

and supplement thereto, Doc. No. 20, and the Commissioner’s Memorandum

in Opposition, Doc. No. 24.

Background

Plaintiff Rebecca Oliver filed an application for disability

insurance benefits in September 2004. The administrative denial of

that application was remanded by this Court, pursuant to Sentence 4 of

42 U.S.C. § 405(g), for further consideration of plaintiff’s severe

anxiety disorder. Oliver v Commissioner of Social Security, 2:07-CV625(S.D. Ohio September 30, 2008). 

In September 2007, plaintiff filed applications for disability

insurance benefits and supplemental security income, which

applications were consolidated with the earlier application. On June

2, 2009, plaintiff, represented by counsel appeared and testified at a

consolidated administrative hearing, as did W. Bruce Walsh, Ph.D., who

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testified as a vocational expert. 

In decisions dated September 2, 2009, the administrative law

judge denied all applications. In both decisions, the administrative

law judge found that, despite plaintiff’s severe physical and mental

impairments, she nevertheless is able to perform medium work reduced

by her mental impairments. Although this residual functional capacity

does not permit plaintiff to perform her past relevant work as a

cashier, the administrative law judge relied on the testimony of the

vocational expert to find that there are jobs that exist in

significant numbers in the national economy that the plaintiff can

perform, including such jobs as a cleaner, order picker and

marker/labeler. Accordingly, the administrative law judge concluded

that plaintiff is not disabled within the meaning of the Social

Security Act. Those decisions became final when the Appeals Council

declined to assume jurisdiction concerning the 2004 application and

declined review of the 2007 applications. 

Plaintiff was 56 years old on the date that the administrative

law judge issued her decisions. She has a 9th grade education with

some special education classes and prior relevant work as a cashier.

Evidence of Record1

Plaintiff has been treated for both physical and mental

impairments by a number of providers. Mark Hodges, M.D., an

internist, treated plaintiff for diabetes, hypertension,

hyperlipidemia, anxiety and fibromyalgia from 2004 through April 2007. 

In October 2004 and August 2005, Dr. Hodges commented that plaintiff

1

The evidence relevant to plaintiff’s first application is set out in

Oliver v. Commissioner of Social Security, 2:07-cv-625, Report and

Recommendation, Doc. No. 14, and will not be repeated here except to the

extent necessary to address the issues determinative to the resolution of this

case.

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had experienced a good response to her medication and had no physical

or mental impediments to work. A.R. 151, 154.

Dennis Mesker, M.D., began treatment of plaintiff in June 2007

for diabetes, hypertension, myalgia, heart palpitations,

hyperlipidemia and anxiety. In November 2007, Dr. Mesker indicated

that plaintiff had a “good” ability, from a mental standpoint, to

engage in work-related activities. A.R. 490-91. From an exertional

standpoint, Dr. Mesker opined that plaintiff was able to perform light

exertion, with some postural restrictions; she did not require a

sit/stand option, but experienced moderate to severe pain. A.R. 492.2

Albert G. Gay, M.D., first saw plaintiff in June 2008. After

clinical exam, Dr. Gay diagnosed diabetes mellitus, uncomplicated,

Type II; hypertension; anxiety, nos; myalgia/myositis, nos; and nasal

congestion. A.R. 526-27.3

Beverly Yamour, M.D., saw plaintiff in October 2008 and diagnosed

adult onset diabetes mellitus, Type II, with good control, and an S3

gallop and grade two systolic heart murmur. A limited neurological

examination was normal. A.R. 497. X-rays of the lumbar spine showed

early degenerative disc disease throughout the lumbar and lower

thoracic spine and mild facet arthropathy from L4-S1. A.R. 498. In

January 2009, Dr. Yamour characterized plaintiff’s diabetes as “under

fairly good control.” A.R. 500.

Glenn A. Rogers, M.D., first saw plaintiff in March 2009 and

characterized her diabetes as “uncontrolled.” A.R. 533. Her

2

The parties agree that the first page of Dr. Mesker’s report is not

included in the record. See A.R. 491-92. The administrative law judge found,

based on the representation of plaintiff’s counsel, that Dr. Mesker indicated

that plaintiff could lift no more than 10 pounds, could stand and walk for six

hours in a workday, for one hour at a time, and could sit without restriction.

A.R. 569, 595.

3

There is some indication in the record that plaintiff was dismissed

from treatment by Dr. Gay. See A.R. 501.

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hypertension was controlled. Dr. Rogers discussed a change in

plaintiff’s anti-anxiety medication. Id. In April 2009, Dr. Rogers

diagnosed probable bipolar disease II and noted complaints of back

pain. A.R. 531. By the following month, plaintiff’s diabetes was

improving, although her hyperlipidemia was worsening. A.R. 530. 

Plaintiff has also been evaluated and treated for mental

conditions. In 2004, plaintiff was consultatively evaluated, at the

request of the state agency, by James Tanley, Ph.D. On the WAIS-III,

plaintiff achieved a verbal IQ score of 69, a performance IQ score of

66 and a full scale IQ score of 66, which placed her in the mild range

of mental retardation. According to Dr. Tanley, “in the absence of

any evidence [to] the contrary, these results appear to be valid.” 

A.R. 145. Dr. Tanley did not diagnose mental retardation, however,

because plaintiff’s school records were not available and an “onset

prior to age of 18 has not been established.” Id. Dr. Tanley also

opined that plaintiff’s anxiety left her with a Global Assessment of

Functioning [“GAF”]4

 of 70, which is indicative of mild impairment. 

Should plaintiff be determined to be mentally retarded, however, Dr.

Tanley would assess her GAF as 60, which is suggestive of moderate

impairment. A.R. 146.

In May 2005, Guy Melvin, a state agency psychologist, reviewed

the record and concluded that plaintiff’s mental impairments,

including her cognitive functioning, neither met nor equaled a listed

impairment, including Listing 12.05C, because plaintiff’s “adaptive

4

“The [Global Assessment of Functioning] GAF scale is a method of

considering psychological, social, and occupational function on a hypothetical

continuum of mental health. The GAF scale ranges from 0 to 100, with serious

impairment in functioning at a score of 50 or below. Scores between 51 and 60

represent moderate symptoms or a moderate difficulty in social, occupational,

or school functioning, whereas scores between 41 and 50 represent serious

symptoms or serious impairment in these areas.” Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 (6th Cir. Feb. 7, 2012).

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behavior suggests [borderline intellectual functioning].” A.R. 162,

166. Plaintiff’s performance on the IQ test administered by Dr.

Tanley “appear[s] to underestimate her function” in light of her

tested memory and reading ability. A.R. 178. That assessment was

affirmed by another state agency psychologist, Karen Jerry, Ph.D., in

October 2005. Id. 

In June 2007, Stephen R. Yerian, Psy.D., performed a consultative

psychological evaluation of plaintiff at the request of the state

agency. Based upon his examination of plaintiff’s mental status, and

on plaintiff’s reported educational and occupational history, Dr.

Yerian estimated that plaintiff has low average intellectual

abilities. A.R. 451. Based upon the history reported by plaintiff

“and the available information,” Dr. Yerian diagnosed a panic disorder

without agoraphobia and placed plaintiff’s GAF at 55. A.R. 452.

In July 2007, Melanie Bergsten, Ph.D., a state agency

psychologist, reviewed the evidence of record and again concluded that

plaintiff’s cognitive functioning neither met nor equaled a listed

impairment, including Listing 12.05C, because plaintiff’s proper

diagnosis was borderline intellectual functioning. A.R. 454, 458. 

According to Dr. Bergsten, plaintiff was moderately impaired in all

work domains. She was able to perform simple repetitive tasks in a

low stress setting “in which relating [to others] is either reduced or

superficial only.” A.R. 470.

In June 2009, after evaluating plaintiff’s complaints of anxiety,

Dr. Rogers “strongly recommended establishing with a psychiatrist.” 

A.R. 529. However, plaintiff testified that she has not done so

because she cannot afford to do so. A.R. 309.

June 2, 2009 Administrative Hearing

At the June 2, 2009 administrative hearing, plaintiff testified

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that she was fired from her last job because of her anxiety attacks:

“{B]ecause of the anxiety, I was messing up.” A.R. 289. She

experiences the attacks when in strange places or around 10 or more

people and, sometimes, in her sleep. A.R. 291. Her diabetes, which

requires that she administer four insulin shots per day, would also

interfere with her ability to work. A.R. 294. Her back pain, for

which she takes Tylenol, A.R. 296, limits her ability to stand to 15

minutes at a time. A.R. 295. She can walk for no more than two

blocks. Id. She can sit for up to one hour before stiffness requires

that she change position. A.R. 296.

The vocational expert, was asked to assume a claimant with

plaintiff’s vocational profile and the functional capacity for medium

work consisting of simple repetitive tasks with only occasional or

superficial interaction with others in a nonpublic work environment. 

According to the vocational expert, such a claimant could perform 40

percent of the medium, unskilled occupational base. A.R. 319. Asked

to assume the credibility of plaintiff’s subjective complaints, the

vocational expert testified that such a claimant could not perform any

job. A.R. 320.

Administrative Decisions

In her decisions, the administrative law judge found that

plaintiff’s severe impairments consist of diabetes mellitus, early

lumbosacral degenerative disc disease, a history of heart palpitations

and a grade 2 systolic murmur, hypertension, elevated lipids, mild

obesity, an anxiety disorder, a history of depression and borderline

intellectual functioning. Supplemental Certified Administrative

Record [“Supp. A.R.”], 584. The administrative law judge determined

that plaintiff’s impairments, whether considered singly or in

combination, neither meet nor equal a listed impairment, including

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List 12.05C. In this regard, the administrative law judge noted that

no treating provider has diagnosed mental retardation, there is no

evidence of qualifying IQ scores or adaptive deficits prior to age 22,

and that plaintiff’s scores on certain subtests administered by Dr.

Tanley suggest that plaintiff is not mentally retarded. Supp. A.R.

568, 593-94.

The administrative law judge went on to find that plaintiff has

the residual functional capacity for medium work that does not require

more than low stress, i.e., simple, repetitive nonpublic tasks with

only occasional superficial interaction with others and without strict

quotas or heavy production demands. Supp. A.R. 568, 594. In

considering plaintiff’s capacity for physical exertion, the

administrative law judge rejected the May 2007 assessment by a state

agency physician, who concluded that plaintiff had no severe

impairment, see A.R. 380, because it was not based on additional

medical evidence generated after that assessment. Supp. A.R. 569,

594-95. She also rejected Dr. Hodges’ opinions that plaintiff has no

physical limitations, because “the evidence of the record as a whole,

when providing the claimant with the full benefit of all reasonable

doubt, leads to a finding that the claimant is more limited than

assessed by this treating physician.” Id. She also rejected Dr.

Mesker’s opinion that plaintiff is capable of only light exertion

because “it is not consistent with or well supported by the medical

evidence of the record as a whole, including this doctor’s own

treatment notes, which reflect generally normal physical

examinations.” Id. In assessing plaintiff’s mental residual

functional capacity, the administrative law judge accepted the

opinions of the reviewing state agency psychologists “as an accurate

representation of the claimant’s mental status. Supp. A.R. 570, 595. 

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The assessments of the two consultative psychologists were accorded

“some weight as being generally supported by and consistent with the

evidence of the record as a whole. . . .” Id. However, the evidence

suggested that plaintiff is more limited than assessed by either Dr.

Hodges and Dr. Mesker, who both opined that plaintiff had no mental

limitations. Id. 

The administrative law judge provided extensive consideration to 

plaintiff’s subjective complaints but found that those complaints were

not fully credible. Supp. A.R. 570-75, 596-600.

Relying on the testimony of the vocational expert, the

administrative law judge found that plaintiff’s residual functional

capacity precluded the performance by her of her past relevant work as

a cashier but would permit the performance of a significant number of

jobs in the national economy. Supp. A.R. 575-76, 600-602.

The administrative law judge accordingly found that plaintiff was

not disabled within the meaning of the Social Security Act.

Discussion

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.

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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.

In her Statement of Errors and Supplemental Statement of Errors,

plaintiff contends that the administrative law judge erred in

concluding that plaintiff’s cognitive functioning does not satisfy

Listing 12.05C, that the administrative law judge violated the

“treating physician” rule when she rejected Dr. Mesker’s opinion that

plaintiff is limited to only light exertion, that the administrative

law judge failed to properly evaluate plaintiff’s credibility and that

the hypothetical posed to the vocational expert was flawed because it

did not include all of plaintiff’s limitations.

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

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.

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

establish three elements in order to satisfy Listing 12.05(c): that

she 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 she has a “valid verbal, performance, or full

scale IQ of 60 through 70;" and (3) that she 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

F.3d at 354-55.

This Court concludes that the administrative law judge’s

determination that plaintiff’s cognitive functioning does not satisfy

Listing 12.05C enjoys substantial support in the record. Although the

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IQ scores reported by Dr. Tanley were qualifying, and although

plaintiff was apparently assigned to some special education classes in

school, the state agency reviewing psychologists and the consulting

psychologist Dr. Yerian opined that plaintiff’s cognitive functioning

did not meet the Listing’s requirement of subaverage intellectual

functioning or deficits in adaptive functioning prior to the age of

22. The administrative law judge did not err in basing her

determination on this substantial evidence.

However, the Court also concludes that the administrative law

judge’s finding that plaintiff has the residual functional capacity

for medium exertion lacks substantial support in the record. The

administrative law judge rejected the assessments of every

professional who expressed an opinion as to plaintiff’s exertional

capacity for work and found plaintiff’s subjective complaints in this

regard to be not entirely credible. Nowhere does the administrative

law judge explain the basis for her determination that plaintiff is

able to engage in medium exertion. Under these circumstances, it

cannot be said that the finding of the administrative law judge in

this regard is supported by substantial evidence. The action must

therefore be remanded for further consideration in this regard.

Having concluded that the action must be remanded for further

consideration of plaintiff’s residual functional capacity, the Court

need not and does not address plaintiff’s remaining arguments.

It is therefore RECOMMENDED that decision of the Commissioner be

reversed and that this action be remanded for further consideration of

plaintiff’s residual functional capacity.

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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

Date: July 31, 2012 

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