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. 

 

 OPINION AND ORDER

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. On December 7, 2012, the Magistrate Judge

recommended that the Commissioner’s decision be affirmed. Plaintiff

filed objections to that recommendation. For the following reasons,

plaintiff’s objections will be overruled. 

I.

If a party objects within the allotted time to a report and

recommendation, the Court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)

(1); see also Fed.R.Civ.P. 72(b). Upon review, the Court “may

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

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

The Court's review of the underlying decision “is limited to

determining whether the Commissioner's decision ‘is supported by

substantial evidence and was made pursuant to proper legal

standards.’” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th

Cir. 2010) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234,

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241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of

the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive”). Put

another way, a decision supported by substantial evidence is not

subject to reversal, even if the reviewing court might arrive at

a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th

Cir. 1986). “Substantial evidence exists when ‘a reasonable mind

could accept the evidence as adequate to support a conclusion

[and] ... presupposes that there is a zone of choice within which

the decision-makers can go either way, without interference by

the courts.’” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406

(6th Cir. 2009)(internal citation omitted). Even if supported by

substantial evidence, however, “‘a decision of the Commissioner will

not be upheld where the [Commissioner] fails to follow its own

regulations and where that error prejudices a claimant on the merits

or deprives the claimant of a substantial right.’” Rabbers v.

Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009), quoting

Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

II.

The Report and Recommendation accurately summarizes the

testimony given at the administrative hearing and the medical

records, and that summary will be repeated here only briefly. 

Plaintiff was 43 years old at the time of the administrative hearing

and had a tenth grade education. He had worked for years as a

roofer but could not continue to do so because of a seizure

disorder. He also reported problems with his knees and his back,

but at the time of the hearing he was not on any medication,

including anti-seizure medication. He had been in special education

classes in school, and there were various IQ tests reported in the

record, some of which produced scores of 70 or below. He achieved

one such score, on the non-verbal portion of the IQ test, while

still in high school, and he scored below 70 on all three parts of

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an IQ test administered to him in 2007 by a consultative examiner,

Dr. Reece. However, Dr. Reece diagnosed borderline intellectual

functioning rather than mild mental retardation. 

The ALJ found that plaintiff did not meet the requirements of

Section 12.05(C) of the Listing of Impairments, one component of

which is scoring 70 or below on an IQ test coupled with deficits in

adaptive functioning manifesting themselves prior to age 22. More

specifically, the ALJ concluded that “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). Plaintiff

contested that finding in his statement of errors, and repeats that

argument in his objection to the Report and Recommendation.

III.

The Magistrate Judge analyzed the issue this way, commenting

on plaintiff’s argument that there is evidence in the record from

which a reasonable person could conclude that plaintiff had deficits

in adaptive functioning prior to age 22:

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 work-related

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

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relate directly to whether plaintiff can function at an

adequate level. See, e.g., West v. 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.

Report and Recommendation, Doc. 19, at 8-9.

In arguing that the Magistrate Judge erred, plaintiff seizes

on the proposition that the ALJ was required to consider all of the

evidence in making a finding about whether Listing 12.05(C) was

satisfied. Plaintiff argues that the ALJ failed to do so, and that

he disregarded much of plaintiff’s testimony about his inability to

function adequately due to his difficulties with reading, writing,

and managing household finances, and also ignored the fact that

plaintiff’s mother completed the questionnaires submitted in

support of his disability claim. The Court finds this argument

unavailing.

First, the ALJ made a specific finding that even if there were

evidence of adult mental retardation - and that is what the

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plaintiff’s citations to his testimony tend to show - such evidence

“is not dispositive absent evidence of significantly subaverage

mental functioning/deficits of adaptive functioning prior to age

22.” (Tr. 18). That is a correct statement of the law. See

Foster v. Hater, 279 F.3d 348 (6th Cir. 2001), cited in the ALJ’s

decision. The ALJ also relied on evidence that plaintiff does not

currently suffer from mental retardation, including the fact that

plaintiff is able to do household tasks, prepare meals, and drive,

and that he worked steadily for many years prior to the onset of

his seizure disorder.

More significantly, although it is true that “[a]n ALJ's

failure to consider an entire line of evidence falls below the

minimal level of articulation required,” see Diaz v. Chater, 55

F.3d 300, 307 (7th Cir. 1995), at the same time “an ALJ is not

required to discuss every piece of ... evidence....” Karger v.

Comm’r of Social Security, 414 Fed. Appx. 739, 753 (6th Cir. Feb.

10, 2011). As the Court of Appeals stated in Kornecky v. Comm’r of

Social Security, 167 Fed. Appx. 496, 507-08 (6th Cir. February 9,

2006), “it is well settled that ‘[a]n ALJ can consider all the

evidence without directly addressing in his written decision every

piece of evidence submitted by a party,’” quoting Loral Defense

Systems-Akron v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999), and “an

ALJ's failure to cite specific evidence does not indicate that it

was not considered.” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.

2000). Put a different way, as this Court has held, “there is a

distinction between what an ALJ must consider and what an ALJ must

cite to in a written decision.” Swartz v. Comm’r of Social

Security, 2011 WL 4571877, *7 (S.D. Ohio August 18, 2011), adopted

and affirmed 2011 WL 4571873 (S.D. Ohio Sept. 30, 2011).

The Court finds that, in this case, “the ALJ's opinion as a

whole sufficiently addressed the evidence and consisted of more

than mere conclusory statements.” See Carroll v. Astrue, 2010 WL

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2643420, *11 (July 1, 2010). The ALJ was certainly aware of

plaintiff’s testimony at the administrative hearing, and the mere

fact that the ALJ cited to those portions of that testimony which

supported his finding does not mean that he was unaware of or

totally disregarded the balance of the plaintiff’s testimony. In

order to succeed on the argument presented in his objections,

plaintiff would have to convince the Court that the ALJ’s factual

findings were not based on a consideration of all of the evidence

and that the ALJ ignored, rather than simply rejected, the evidence

which favored plaintiff’s view of the case. Cf. Sims v. Astrue,

2011 WL 1256655, *8 (N.D. Ohio March 31, 2011)(finding that the

ALJ’s failure directly to address certain pieces of evidence was

not reversible error because the “factual findings as a whole”

showed that the ALJ rejected that evidence). The same is true

here. The ALJ’s factual findings as a whole, and his discussion of

the various items of both lay and expert evidence dealing with the

question of mental retardation, show that he considered the record

as a whole and implicitly rejected that evidence showing that

plaintiff had some deficits in functioning in favor of other

evidence showing that he did not, and that a diagnosis of mild

mental retardation, even as an adult, was not justified. Given

that the ALJ did not entirely disregard or ignore this entire line

of evidence, the fact that every piece of evidence favorable to the

plaintiff was not specifically cited and rejected provides no basis

for a remand. 

IV.

For all of these reasons, and after a de novo review of

those portions of the Report and Recommendation to which

plaintiff objected, the Court OVERRULES the objections (Doc. 20)

and ADOPTS AND AFFIRMS the Report and Recommendation (Doc. 19). The

plaintiff's statement of specific errors (Doc. 12) is OVERRULED and

this case is DISMISSED. The Clerk is directed to enter judgment in

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favor of the defendant.

IT IS SO ORDERED.

Date: January 31, 2012 s/James L. Graham 

James L. Graham

United States District Judge

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