IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kevin M. Williamson, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0244

Commissioner of Social : JUDGE JAMES L. GRAHAM

Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Kevin M. Williamson, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his applications for disability insurance benefits and

supplemental security income. Those applications were filed on

June 11, 2007, and alleged that plaintiff became disabled on

August 17, 2006. 

After initial administrative denials of his application,

plaintiff was given a hearing before an Administrative Law Judge

on April 21, 2010. In a decision dated July 12, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on January 24, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on May 25, 2012. Plaintiff filed his

statement of specific errors on June 26, 2012. The Commissioner

filed a response on September 5, 2012. No reply brief has been

filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 43 years old at the time of the

administrative hearing and who completed ten years of schooling

in special education classes, testified as follows. His

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 1 of 10 PAGEID #: <pageID>
testimony appears at pages 36-53 of the administrative record.

 Plaintiff is a roofer. He stopped working because he suffers

from a seizure disorder and cannot get hired by a roofing company

due to having seizures. He had a seizure while working on a roof

at his last job. That happened one other time as well. He has

had seven or eight seizures in total, one within the past year.

Plaintiff testified that he drinks, averaging a six-pack of

beer per day. He was arrested on a DWI charge in 1994. 

Plaintiff had not looked for other work since losing his job

as a roofer. He said he was afraid of having a seizure while

being around machinery. He is not able to read or write other

than simple words. He can make change. 

From a physical standpoint, plaintiff has trouble with his

knees, which both had been broken in the past. He also has

arthritis in his spine, centered in the lower back. He does not

take pain medication, nor has he been taking seizure medication. 

On a daily basis, he does household chores and runs errands. He

may also watch television and visit his father. 

 III. Medical and School Records

The medical and school records in this case are found

beginning on page 256 of the administrative record. The

pertinent records (those which relate to Listing 12.05(C)) can be

summarized as follows. 

It appears that plaintiff was first given an IQ test in

1973. He tested at “above EMR range” (EMR was apparently used by

his school to indicate “slow learning”). (Tr. 269). Three years

later, a fourth-grade school record reported actual IQ scores of

74 (verbal), 85 (performance), and 78 (full scale). (Tr. 265). 

At that time, plaintiff was behind grade level in reading,

spelling and arithmetic. He was put on an Individualized

Education Plan for the 1978-79 school year which involved special

placement classes for all academic subjects. (Tr. 263). By the

-2-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 2 of 10 PAGEID #: <pageID>
time he was 16, he was in regular classes except for English and

math. (Tr. 260). It also appears that he repeated the ninth

grade. (Tr. 276). In 1982, he scored 67 on the non-language

portion of an IQ test, but 87 on the language portion and 76

overall. (Tr. 274). 

Dr. Reece, a psychologist, evaluated plaintiff in 2007 at

the request of the Bureau of Disability Determination. He found

that plaintiff had an adequate memory for past and recent events

and had a moderate ability to do arithmetic and to abstract

similarities. His concentration and persistence were “fair but

very poorly sustained” and he did not follow directions well. 

The “clinical impression of his cognitive functioning is below

average.” His IQ scores fell in a range from 63 to 67; it was

noted that “[p]oorly sustained concentration and persistence and

sometimes slow pace lowered his scores.” Despite these scores,

Dr. Reece diagnosed borderline intellectual functioning rather

than mild mental retardation. He rated plaintiff’s GAF at 65,

indicative of only a mild impairment, but found moderate

impairments in plaintiff’s ability to understand, remember and

follow directions and to perform simple repetitive tasks. His

ability to withstand the pressure of ordinary work was only

mildly impaired. (Tr. 342-46). 

Dr. Stailey-Steiger, a state agency reviewer, essentially

adopted those findings, noting that plaintiff was “capable of

performing routine tasks in settings with few changes and without

strict time or production demands.” (Tr. 351). Dr. Lewin, also

a state agency reviewer, confirmed that assessment. (Tr. 422).

 IV. The Vocational Testimony

A vocational expert, Dr. Growick, also testified at the

administrative hearing. His testimony begins at page 54 of the

record. He characterized plaintiff’s past work as a roofer as

heavy and unskilled. Plaintiff had no other relevant work

-3-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 3 of 10 PAGEID #: <pageID>
history.

Dr. Growick was asked to assume that plaintiff could not

climb ladders, ropes or scaffolds and could not work around

hazardous machinery or unprotected heights and also was limited

to the performance of simple repetitive tasks and to oral

instructions. With those restrictions, plaintiff could not

perform his past work. He could, however, do a number of

unskilled medium, light or sedentary jobs such as assembly

machine tender, packer, or assembler. If plaintiff could not

perform even simple, repetitive tasks during 10% of the workday,

he would more likely be in the sheltered work area than being

able to do competitive work.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 14

through 22 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

December 31, 2010. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of

August 17, 2006, through the date of the decision. As far as

plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including a history of seizures,

borderline intellectual functioning and alcohol abuse. The ALJ

also found that these impairments did not, at any time, meet or

equal the requirements of any section of the Listing of

Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform medium work except that he was precluded from

the use of ladders and work at unprotected heights or around

hazardous machinery. He was also limited to simple repetitive

-4-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 4 of 10 PAGEID #: <pageID>
tasks and would need oral instructions, was precluded from fastpaced or strict time limited tasks, and could tolerate occasional

changes in work setting or assignment. Adopting the vocational

expert’s testimony, the ALJ found that plaintiff could not do any

of his past work but could perform unskilled light jobs such as

machine tender, packer and assembler. Because these jobs exist

in significant numbers in the economy, the ALJ concluded that

plaintiff was not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises a

single issue. He argues that the Commissioner improperly

interpreted Section 12.05(C) of the Listing of Impairments, and

that the Commissioner should have found that he suffered from

deficits in adaptive functioning manifesting themselves prior to

age 22 - a finding which, if coupled with plaintiff’s latest IQ

scores and the presence of a seizure disorder, would have led to

a finding of disability. The Court generally reviews the

administrative decision of a Social Security ALJ 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.

-5-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 5 of 10 PAGEID #: <pageID>
1984). In determining whether the Commissioner's decision is

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).

The ALJ specifically considered whether plaintiff met the

requirements of Section 12.05(C) of the Listing of Impairments. 

Listing 12.05(C) provides that a claimant is presumptively

disabled if the plaintiff scores between 60 and 70 on a valid IQ

test, has another significantly limiting impairment, and meets

certain diagnostic criteria for mental retardation, particularly

the manifestation of deficits in adaptive functioning prior to

age 22. In determining that plaintiff did not meet these

criteria, the ALJ noted that plaintiff had scored above 70 on all

three parts of his December 1976 IQ test and found that “there

are no school records or other objective evidence to document

that the claimant manifested lower IQ scores before age 22.” 

(Tr. 17). The ALJ further noted that placement in special

education classes is not “automatically probative of a mentally

retarded IQ” because that placement could have resulted from

other reasons. Finally, the ALJ concluded that even if plaintiff

did have the requisite level of IQ test scores prior to age 22,

“the record in this case also fails to document adaptive

deficits, either currently or prior to age 22, as required by

Listing 12.05(C).” (Tr. 18). That conclusion was based on the

fact that “the claimant clearly has good adaptive functioning. 

-6-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 6 of 10 PAGEID #: <pageID>
He cares for the home while his wife works, can prepare simple

meals, drive, and he had many years of steady employment before

losing his job.” Id.

Plaintiff argues against this conclusion by asserting that

“[t]here is ... evidence to support a finding that Mr. Williamson

had significantly subaverage general intellectual functioning

with deficits in adaptive functioning initially manifested during

the developmental period ....” Statement of Errors, Doc. 12, at

10. He cites to the margin of error present in IQ testing,

asserting that his score of 74 on the verbal portion of the test

might actually have been as low as 69, to school records

indicating the need for special classes, to the fact that he was

retained in both the first and ninth grades, and to comments that

his intellectual development lagged behind his chronological age. 

Plaintiff also characterizes the ALJ’s finding about his current

level of adaptive functioning as “clear error,” noting that under

Brown v. Sec’y of HHS, 948 F.2d 268 (6th Cir. 1991), an ALJ

cannot reject an otherwise valid IQ score simply on the basis

that a claimant is able to function in the home and the

workplace. Plaintiff argues that the ALJ’s conclusion that he

functions at a good adaptive level is belied by the evidence that

he is almost illiterate, does not handle the family finances, and

depends to a large extent on his wife for daily living

activities.

It is unnecessary to address the issue of how the ALJ

treated the 1974 IQ scores because, as the Commissioner candidly

concedes and as the record reflects, plaintiff’s 1976 IQ testing

did produce one qualifying score. As the Commissioner correctly

notes, however, that test score, by itself, is not enough to

satisfy the Listing. Further, the ALJ’s decision provided a

rationale for denying benefits even if it were assumed that

plaintiff had scored between 60 and 70 on an IQ test administered

-7-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 7 of 10 PAGEID #: <pageID>
before he turned 22. That rationale was that plaintiff did not

otherwise meet the definition of mental retardation because he

did not have the required level of deficits in adaptive

functioning either prior to age 22 or currently. Such a finding

must be made in order for this particular section of the Listing

of Impairments to be satisfied, as the preamble to that section

makes clear. See, e.g., Iding v. Commissioner of Social Sec.,

2011 WL 1002105 (S.D. Ohio Feb, 22, 2011), adopted and affirmed

2011 WL 1002108 (S.D. Ohio March 16, 2011), citing Brown, supra. 

Thus, the determinative question is whether that finding is

supported by substantial evidence in this record.

On this point, the Commissioner has the better argument. As

the Commissioner’s memorandum points out, the question is not

whether there is evidence which would support a finding of such

deficits, but whether there is evidence which could lead a

reasonable person to the opposite conclusion. See Johnson v.

Comm’r of Social Security, 652 F.3d 646, 648 (6th Cir. 2011)(“If

the ALJ's decision is supported by substantial evidence, then

reversal would not be warranted even if substantial evidence

would support the opposite conclusion”). Here, the Commissioner

correctly points out that no one has ever diagnosed plaintiff as

suffering from mental retardation; even with his low IQ scores as

an adult, he was diagnosed with borderline intellectual

functioning. The mental health experts who examined him or

expressed opinions about his functional capacity all concluded

that he had only mild to moderate limitations in most workrelated areas of functioning, with the exception of dealing with

complex job instructions. The evidence about plaintiff’s

activities of daily living and ability to work for a substantial

number of years, while it might not justify invalidating an

otherwise valid IQ test score, does relate directly to whether

plaintiff can function at an adequate level. See, e.g., West v.

-8-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 8 of 10 PAGEID #: <pageID>
Comm’r of Social Security, 240 Fed. Appx. 692, *5 (6th Cir. July

5, 2007), citing Heller v. Doe by Doe, 509 U.S. 312, 329 (1993)

for the proposition that “[a]daptive functioning includes a

claimant's effectiveness in areas such as social skills,

communication, and daily living skills,” and that the ability to

work on a daily basis, to care for daily needs, to shop, and to

interact with others are all consistent with the absence of

deficits in adaptive functioning.

In short, plaintiff’s argument amounts to a disagreement

with the ALJ about how to interpret the evidence of record. 

There is likely enough evidence here to support a finding that

plaintiff had at least some deficits in adaptive functioning

prior to age 22, but the ALJ did not have to accept that evidence

as determinative. Rather, the ALJ was entitled to (and required

to) consider all of the evidence of record, including the

evidence which weighs against a finding that plaintiff suffered

from mental retardation as defined in Listing 12.05, and to make

a reasonable finding that the Listing had not been satisfied. 

Because that is exactly what happened here, there is no basis for

reversal or remand, and the Commissioner’s decision denying

benefits must be affirmed.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

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

-9-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 9 of 10 PAGEID #: <pageID>
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

-10-

Case: 2:12-cv-00244-JLG-TPK Doc #: 19 Filed: 12/07/12 Page: 10 of 10 PAGEID #: <pageID>