IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MELISSA A. HARRIMAN, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-33 

 Judge Graham 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

 REPORT AND RECOMMENDATION

I. Background 

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 supplemental security income. 

This matter is now before the Court on plaintiff’s Statement of Errors, 

Doc. No. 14, the Commissioner’s Memorandum in Opposition, Doc. No. 19, and 

plaintiff’s Reply. Doc. No. 20. 

 Plaintiff Melissa A. Harriman filed her application for benefits on 

June 19, 2007, alleging that she has been disabled since January 1, 2000, 

as a result of a learning disability and blindness in her left eye. PAGEID

167-69, 176. The application was denied initially and upon reconsideration, 

and plaintiff requested a de novo hearing before an administrative law 

judge. 

 A hearing was held on January 11, 2010, at which plaintiff, 

represented by counsel, appeared and testified, as did Walter B. Walsh who 

testified as a vocational expert. In a decision dated February 26, 2010, 

the administrative law judge concluded that plaintiff is not disabled 

within the meaning of the Social Security Act. PAGEID 57-66. 

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The administrative law judge specifically found that plaintiff’s 

severe impairments consist of a left eye impairment, asthma, low back pain, 

obesity, an affective disorder and borderline intellectual functioning. 

PAGEID 59. However, plaintiff does not suffer an impairment or combination 

of impairments that meets or equals a listed impairment, including Listing 

12.05C, which addresses mental retardation. Id., at 59, 61. The 

administrative law judge went on to find that plaintiff has the residual 

functional capacity for a reduced range of light work. PAGEID 61-64. 

Relying on the testimony of the vocational expert, the administrative law 

judge found that, despite plaintiff’s impairments, her residual functional 

capacity would permit the performance of a significant numbers of jobs. 

Accordingly, the administrative law judge concluded that plaintiff is not 

disabled within the meaning of the Social Security Act. 

That decision became the final decision of the Commissioner of Social 

Security when the Appeals Council declined review on November 14, 2011. 

PAGEID 43-47. 

II.Standard 

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 more than a scintilla of evidence but less than 

a preponderance; it 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 

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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. 

III.Relevant Evidence 

Plaintiff does not challenge the administrative law judge’s 

evaluation of her exertional impairments. Statement of Errors, PAGEID 931, 

937-42. Rather, plaintiff challenges the administrative law judge’s 

evaluation of her mental impairments. Because the Court concludes that 

the administrative law judge erred in his evaluation of Listing 12.05C, 

the Court concludes that the matter must be remanded for further 

proceedings. 

Plaintiff has an eleventh grade, “limited” education in special 

education classes. PAGEID 64, 181. She has no prior relevant work 

experience. PAGEID 64, 177. Plaintiff testified that she cannot 

understand what she is reading. PAGEID 74 She required help in applying 

for an Ohio identification card. Id. 

 Plaintiff testified that she cannot work because she has problems with 

her back and knees, is blind in one eye, is a “slow learner,” and suffers 

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from bipolar disorder and depression. PAGEID 78-80. She lives with her 

mother, who cares for most daily activities such as housework and laundry. 

PAGEID 81. Her brother had custody of plaintiff’s children. PAGEID 78. 

 In 1994, plaintiff’s full scale IQ measured 80 on the Wechsler 

Intelligence Scale for Children-III. PAGEID 345. In 1997, her composite 

score on the Stanford-Binet Intelligence Scale, 4th Edition, measured at 

79. Id. A school psychologist interpreted these results as “suggest[ing] 

cognitive functioning within the borderline to low average range.” Id.

Plaintiff’s special education teacher reported that plaintiff had “a 

difficult time comprehending written and verbal instructions” and needed 

“much individualized instruction and repetition.” PAGEID 344. In May 2000, 

an evaluation team determined that plaintiff's cognitive and adaptive 

abilities fell in the developmentally handicapped range and she continued 

to show academic deficits. PAGEID 350. According to plaintiff’s May 2002 

IEP, plaintiff was considered disabled due to “Mental Retardation (DH).” 

PAGEID 333. 

In April 2006, plaintiff was evaluated by Tambrey Delbert, Ph.D., and 

Roger Wilcox, Ph.D., upon referral by the Department of Job and Family 

Services. PAGEID 303-07. The psychologists concluded that “[o]verall, 

cognitive and memory functioning were adequately developed.” PAGEID 306. 

On the WRAT-3, plaintiff achieved fourth-grade equivalent abilities in 

reading, spelling and arithmetic. PAGEID 307. The psychologists diagnosed 

posttraumatic stress disorder, an adjustment disorder with depressed mood 

and a learning disorder, NOS. Id. Plaintiff was assessed a Global 

Assessment of Functioning (GAF) score of 63.1 Id. The psychololgists 

 

1

Health care clinicians perform a Global Assessment of Functioning to determine 

a person’s psychological, social, and occupational functioning on a hypothetical 

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concluded that plaintiff’s psychological difficulties were “primarily 

expressions of more current losses as opposed to long-term difficulties.” 

Id.

 Drs. Delbert and Wilcox also completed a mental functional capacity 

evaluation, PAGEID 308-09, in which they opined, inter alia, that plaintiff 

was moderately to markedly limited in her abilities to work in coordination 

with or proximity to others without being distracted by them, to complete 

a normal work-day and workweek without interruptions from psychologically 

based symptoms and to perform at a consistent pace without an unreasonable 

number and length of rest periods, and to accept instructions and respond 

appropriately to criticism from supervisors. The psychologists concluded 

that plaintiff would be unemployable for up to 9 months based on the results 

of their examination. PAGEID 309. 

 Dr. Delbert evaluated plaintiff again in July 2007. PAGEID 313-17. 

At that time, plaintiff exhibited good immediate auditory memory skills, 

fair concentration and an adequate fund of knowledge. PAGEID 315. She 

demonstrated a full ability to understand directions. PAGEID 316. On the 

WRAT-3, plaintiff tested at the third-grade equivalent in reading, spelling 

and arithmetic. Id. Accordingly to Dr. Delbert, “[o]verall, cognitive and 

memory functioning were limited in some areas but generally adequate.” Id.

Dr. Delbert diagnosed an adjustment disorder with a depressed mood and a 

learning disorder, NOS. PAGEID 317. Plaintiff was assigned a current GAF 

score of 60. Id. Dr. Delbert concluded that plaintiff had “a significant 

 

continuum of mental illness. It is, in general, a snapshot of a person’s “overall 

psychological functioning” at or near the time of the evaluation. See Hash v. 

Commissioner of Social Sec., 309 Fed.Appx. 981, 988 n.1 (6th Cir. 2009); see also 

Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision at 

pp. 32-34. A GAF score of 61-70 describes a person with “mild symptoms or some 

difficulty with social, occupational or school functioning, but such a person can 

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amount of psychological difficulties especially associated with being 

learning disabled” and that “those conditions, coupled at times with her 

depressive symptoms, seem to impede her ability to secure and sustain 

adequate employment.” Id. 

 In an assessment of plaintiff’s mental functional capacity, Dr. 

Delbert opined that plaintiff was markedly impaired in her abilities to 

understand and remember very short and simple instructions and to carry 

out detailed instructions; moderately to markedly impaired in her ability 

to complete a normal work-day and workweek without interruptions from 

psychologically based symptoms and to perform at a consistent pace without 

an unreasonable number and length of rest periods; and not significantly 

limited to moderately impaired in her abilities to maintain attention and 

concentration for extended periods sufficient to sustain an ordinary 

routine without special supervision, to accept instructions and respond 

appropriately to criticism from supervisors, to maintain socially 

appropriate behavior and to adhere to basic standards of neatness and 

cleanliness; to be aware of normal hazards and take appropriate precautions 

and to travel in unfamiliar places or use public transportation. Dr. Delbert 

concluded that plaintiff would be unemployable for twelve months or more.

PAGEID 312. 

 In September 2007, plaintiff underwent a consultive psychological 

evaluation at the request of the state agency by Lee Roach, Ph.D. PAGEID

435-42. Dr. Roach reported that plaintiff was oriented x 3. Her affect was 

constricted. Page ID 436. Plaintiff’s immediate recall was adequate, and 

her long-term memory was functional. Id. On the WAIS-III, plaintiff 

achieved a verbal I.Q.score of 70, a performance I.Q. score of 72 and a 

 

generally functioning pretty well and have some meaningful interpersonal 

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full scale score IQ score of 68. PAGEID 437. All verbal and performance 

subtests were rated as “deficient.” PAGEID 437-38. On the WRAT-4, 

plaintiff’s spelling tested at less than a grade 2 equivalent, sentence 

comprehension fell in the 3rd to 4th grade range (3.4), and word reading 

and computation scores fell between a grade 4 and 5 level (4.5 and 4.6, 

respectively). PAGEID 438. According to Dr. Roach, these results placed 

plaintiff in the borderline range of intellectual functioning. Dr. Roach 

diagnosed a major depressive disorder, without psychotic features, 

recurrent, moderate to severe; a circadian rhythm sleep disorder; an acute 

stress disorder; a pain disorder with both psychological factors and a 

chronic medical condition; and borderline intellectual functioning. Dr. 

Roach assigned a current GAF score of 60. PAGEID. 440. Dr. Roach opined 

that plaintiff was able to complete simple, routine activity of daily living 

tasks at home, but not on a production line due to her slow work pace. 

PAGEID 441. Her mental ability to relate to others, including fellow workers 

and supervisors, was markedly impaired by her depression and anxiety 

symptoms, and she was unable to relate sufficiently to coworkers and 

supervisors for even simple, repetitive tasks. Id. Dr. Roach opined that 

plaintiff’s ability to deal with the day-to-day stress and job pressures 

is markedly impaired, particularly in the areas of concentration, 

attention, pace and persistence. Id. Dr. Roach concluded that plaintiff 

had the mental ability to perform at least simple repetitive household tasks 

and activities of daily living that would not involve public interaction. 

Id.

 In October 2007, Roseann Umana, Ph.D., reviewed the record on behalf 

of the state agency and opined that plaintiff had a mild restriction on 

 

relationships.” Id at 34.

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her activities of daily living, and moderate difficulties in maintaining 

concentration, persistence, and pace, and in maintaining social 

functioning. PAGEID 458. According to Dr. Umana, plaintiff was capable of 

simple, routine tasks, would likely have difficulty with complex tasks, 

would benefit from a workplace with limited/superficial interactions with 

the general public, coworkers and supervisors and would benefit from a 

relatively static/stable workplace without strict quota/production/pace 

requirements. PAGEID 446. Another state agency psychologist, Catherine 

Flynn, Psy.D., reviewed the evidence and affirmed Dr. Umana’s assessment 

in May 2008. PAGEID 534. 

IV.Discussion 

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. 

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

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

experiences “significantly subaverage general intellectual functioning 

with deficits in adaptive function [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) 

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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). 

 In concluding that plaintiff’s cognitive functioning does not satisfy 

Listing 12.05C, the administrative law judge reasoned as follows: 

. . .[T]he “paragraph C” criteria of listing 12.05 are 

not met because the claimant does not have 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. Although the claimant’s full scale IQ score 

was 68 during a consultative psychological examination 

in September 2007, she does not have a physical or other 

mental impairment imposing an additional and 

significant work-related limitation of function . . . . 

PAGEID 61 (emphasis added). Because the administrative law judge had 

previously found that plaintiff suffers other severe physical and mental 

impairments, this finding is not supported by substantial evidence. 

 The Commissioner concedes that the administrative law judge erred in 

this regard. Memorandum in Opposition, PAGEID 959. However, the 

Commissioner characterizes that error as harmless and takes the position 

that plaintiff’s cognitive functioning does not meet Listing 12.05C because 

plaintiff cannot establish the first element of the Listing, i.e.,

significantly subaverage general intellectual functioning with deficits 

in adaptive functioning initially manifested during the developmental 

period. Id. However, that determination, which requires the 

consideration and evaluation of the evidence in the record, is for the 

administrative law judge – not this Court - to resolve in the first instance. 

See Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 

1994)(“If a court determines that substantial evidence does not support 

the [Commissioner’s] decision, the court can reverse the decision and 

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immediately [resolve the application for benefits] only if all essential 

factual issues have been resolved. . . .”) 

 It is therefore RECOMMENDED that the decision of the Commissioner be 

reversed and that the action be remanded to the Commissioner of Social 

Security for further proceedings. 

 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). 

Date: February 4, 2013 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge

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