IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Cliff Sweet, :

Plaintiff Civil Action 2:11-cv-1151

:

v. Judge Marbley

:

Michael J. Astrue, Magistrate Judge Abel

Commissioner of Social Security, :

Defendant 

REPORT AND RECOMMENDATION

Plaintiff Cliff Sweet brings this action under 42 U.S.C. §§405(g) and 1383(c)(3) for

review of a final decision of the Commissioner of Social Security denying his

applications for Social Security Disability and Supplemental Security Income benefits. 

This matter is before the Magistrate Judge for a report and recommendation on the

administrative record and the parties’ merits briefs.

Summary of Issues. Plaintiff Sweet maintains that he became disabled, at age 36,

due to a back injury and neck injury. (PageID 221.) He was 38 years old at the time of

the hearing before the administrative law judge. The administrative law judge found

that Sweet retains the ability to perform a reduced range of work having light exertional

demands. (PageID 44.) 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge failed to use the appropriate legal standards in the

evaluation of plaintiff’s credibility. 

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• The administrative law judge failed to evaluate plaintiff’s IQ deficits as a severe

impairment.

Procedural History. Plaintiff Sweet filed his application for disability insurance

benefits on July 13, 2009 and supplemental security income on September 29, 2009,

alleging that he became disabled on July 13, 2009. (PageID 155-58, 159-62.) The

applications were denied initially and upon reconsideration. Plaintiff sought a de novo

hearing before an administrative law judge. On May 20, 2011, an administrative law

judge held a video hearing at which plaintiff, represented by counsel, appeared and

testified. (PageID 63-85.) A vocational expert also testified. (PageID 86-95.) On June 17,

2011, the administrative law judge issued a decision finding that Sweet was not

disabled within the meaning of the Act. (PageID 40-51.) On October 25, 2011, the

Appeals Council denied plaintiff’s request for review and adopted the administrative

law judge’s decision as the final decision of the Commissioner of Social Security. 

(PageID 32-34.)

Age, Education, and Work Experience. Sweet was born February 23, 1973. 

(PageID 50, 217.) He has high school education attending special education classes. He

also obtained his CDL through truck driving school. (PageID 181-216, 255.) Sweet

previously worked as a construction laborer, forklift operator, technician at a car

dealership, over the road truck driver and water blaster in the industrial services

industry. (PageID 222.) 

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Plaintiff’s Testimony. The administrative law judge fairly summarized Sweet’s

statements and hearing testimony as follows:

The claimant appeared at his hearing and provided sworn testimony

regarding his physical impairments. He testified that he had difficulty

with steps, held a commercial driver’s license, but could not drive because

his right leg had been numb for a period, and that he sat in the car for

forty-five minutes for the drive to the hearing. He further testified that he

had significant pain in his back and neck, he could walk about twenty feet

before needing a rest period, could stand in one place for fifteen to twenty

minutes before needing to sit for at least forty-five minutes. The

claimant also testified that he had requested surgery for his back in the

past but that the surgeon had stopped taking his insurance and that he

will be seeing a surgeon in the future for spinal fusions. Regarding his

knee, the claimant stated he experienced popping and cracking and it

causes him pain if he stands on it for a while. He testified that he

experiences similar problems with his right shoulder. The undersigned

inquired about the claimant’s activities of daily living and the claimant

stated he was able to sit down and watch movies, could walk to get

around, had difficulty fishing, cooked once per week, and did not do yard

or household chores. The undersigned asked the claimant whether he

believed he could work at a job that allowed him to sit or stand whenever

he wanted without heavy lifting. The claimant responded he did not

think he could because sometimes his legs go numb and he felt like

passing out and seeing black spots.

(Page ID 48-49.)

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Under the Individuals with Disabilities Education Act, 20 U.S.C. § 1401, et seq., children who are

identified as having a disability are entitled to special education and related services to address their

“unique needs and prepare them for further education, employment, and independent living.” See 20

U.S.C. § 1400(d)(1)(A). School districts must establish an IEP for each child with a disability. See Deal v.

Hamilton County Bd. of Educ., 392 F.3d 840, 853 (6th Cir. 2004). The IEP must “contain a specific statement

of the child’s current performance levels, the child’s short-term and long-term goals, the educational and

other services to be provided, and criteria for evaluating the child’s progress.” Deal, 392 F.3d at 853

(quoting Knable v. Bexley City Sch. Dist., 238 F.3d 755, 763 (6th Cir. 2001)).

4

School Records. When plaintiff was enrolled at Fairfield County Schools, an

Individualized Education Plan (“IEP”)1 was prepared for the 1982-83 school year.

(PageID 215-16.) Plaintiff was in a program for developmentally handicapped students.

An evaluation team report prepared when Sweet was in the fourth grade showed

an IQ of 73. (PageID 213.) Plaintiff was referred for evaluation due to his lack of

progress in regular classes. It was noted that Sweet had been phased out of the

developmentally handicapped program due the evaluation data obtained from the

evaluation team. (PageID 212.) 

He underwent a psychological reevaluation in November 1986 when he was

thirteen years old as a part of his muitlifactored reevaluation. (PageID 204.) Sweet

scored a Verbal IQ of 67, Performance IQ of 75, and Full Scale IQ of 70 on the Weschler

Intelligence Scale for Children - Revised. Id.

In December 1989, when Plaintiff was sixteen, he scored a Verbal IQ of 79,

Performance IQ of 76, and Full Scale IQ of 77 on the Weschler Adult Intelligence Scale. 

(PageID 197.) The evaluator indicated that these scores placed him in the borderline

range of intellectual functioning. Id.

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In the IEP for Sweet’s senior year, it was noted that Sweet demonstrated deficits

in adaptive behavior in the areas of motor skills, social communication, and community

living skills. (PageID 181.)

Medical Evidence of Record. The relevant medical evidence of record is

summarized as follows:

Colonnade Internal Medicine Group/James Key, M.D. On April 22, 2009,

Plaintiff complained to physician assistant (“PA”) Elizabeth Gross of right shoulder

pain for the past four days, alleviated by Ibuprofen. An x-ray was ordered and Sweet

was instructed to lose weight. (PageID 445-46.) 

On April 29, 2009, Plaintiff complained to primary care physician, Dr. Key of

right arm swelling for the past ten days and that Naprosyn only mildly improved his

right shoulder pain. (PageID 287.) Physical examination showed tenderness and pain

with abduction of the right shoulder. Sweet was diagnosed with tendinitis. A cervical

spine x-ray showed mild degenerative disc disease at C6-7. (PageID 298.)

An MRI of the right shoulder taken on May 2, 2009, revealed moderate

supraspinatus and infraspinatus tendinopathy and mild AC (acromioclavicular) joint

degenerative changes with marrow edema at the AC joint. (PageID 295-96.)

On May 8, 2009, Sweet was seen for chronic tachycardia, hypertension and

weight gain/obesity at 366 pounds. (PageID 285-86.) He had a normal musculoskeletal

exam and normal psychiatric findings, including normal thought content, cognition,

memory, concentration, abstract thinking, judgment, and insight. (PageID 249.)

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On July 13, 2009, Sweet presented to PA Elizabeth Martin with complaints of a

sudden onset of acute, sharp, radiating back and neck pain. (PageID 283-85.) 

Associated signs and symptoms included extremity numbness, headache, limited range

of neck motion, and sciatica. Physical examination revealed tenderness of the cervical,

thoracic and lumbosacral spine, decreased flexion and extension of the cervical spine,

decreased flexion, extension and bending of the lumbar spine, and tenderness of the

right sacroiliac joint. His upper and lower extremities were normal bilaterally, and he

had a normal gait. Sweet was diagnosed with degenerative disc disease, lumbago and

sciatica. (PageID 285.) MRI’s of Sweet’s spine were ordered and he was placed on a

Prednisone taper.

A lumbar spine MRI taken the following day showed mild degenerative disease,

especially at L1-2, L4-5 and L5-S1. There was no herniation or stenosis. (PageID 300-01.)

An MRI of Sweet’s cervical spine taken on July 15, 2009 showed a bulging disc and

posterior osteophytes at C6-7 causing mild central and left paramidline stenosis with

neural foraminal due to bony overgrowth worse on the left than the right. It also

showed a small central and right paramidline disc protrusion at C5-6 causing mild

central stenosis without compressing the spinal cord. (PageID 322-23.) An MRI of the

thoracic spine, obtained the same day, showed degenerative disc changes and anterior

osteophyte formation in the lower thoracic spine. (PageID 324.) 

In July 2009, PA Martin reported that she had treated Sweet since November

2008. She listed his medical conditions as essential hypertension, tachycardia,

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osteoarthritis, degenerative intervertebral disc disease, sciatica, lumbago, obesity,

tendinitis, hyperlipidemia, and reflux disease. PA Martin opined that Sweet required

medication and would possibly require back surgery in the future. She reported that

Sweet was limited in sitting, standing and walking, could frequently and occasionally

lift twenty-one to twenty-five pounds, was not significantly limited in repetitive foot

movements or handling, and was moderately limited in reaching, bending, and

pushing/pulling. PA Martin concluded that Sweet was not employable. (PageID 318-

19.)

On August 18, 2009, Sweet presented to PA Gross with complaints of worsened

back pain and sciatica. He “[w]ould also like a letter stating he can no longer drive [due

to] his leg going [completely] numb.” (PageID 436.) Examination revealed normal

clinical findings in his upper and lower extremities bilaterally and normal gait and

station, but PA Gross found thoracic and lumbar spine tenderness, decreased flexion

and extension, decreased lateral bending, and positive straight leg raising. PA Gross

also reported that Sweet exhibited normal thought content, cognition, memory,

concentration, abstract thinking, judgment, and insight. Sweet’s Tramadol and

Naprosyn were continued, a Prednisone taper was added he was referred to Dr.

Masone for injections. (PageID 437.) 

On October 6, 2009, Sweet complained to PA Gross of chronic back pain. PA

Gross’ examination of Sweet revealed upper and lower extremities were normal

bilaterally, and Sweet had a normal gait and station. Sweet also exhibited normal

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psychiatric findings. (PageID 434-35.) On October 14, 2009, Sweet complained to

physician assistant Devon Ratchford of ankle edema and lower leg pain that had started

one week earlier. Associated signs and symptoms included decreased range of motion,

instability, limping, locking, redness, swelling and warmth. Sweet also requested a

referral to a gastric bypass surgeon. PA Ratchford recommended that Sweet elevate his

legs whenever he rested and use Ace wraps in the morning. (PageID 432-33.)

In January and March 2010, Sweet was seen for edema of both lower extremities. 

(PageID 384-85, 387-88.) In April and May 2010, it was noted that Sweet’s condition was

improving, but the frequency of the episodes was increasing and exacerbated by

standing. (PageID 410-12.) In August 2010, Sweet complained to Dr. Key of bilateral

lower extremity edema. (PageID 420-21.) During physical examination, he exhibited

tenderness and decreased flexion in his lumbar spine, but his straight leg raise test, gait,

and station were normal. Id. When seen in September 2010, Sweet’s left knee was

tender with decreased flexion and extension and pain with flexion. PA Paul Schoor also

found tenderness and decreased flexion of the lumbar spine, edema of the lower legs

and ankles, stasis dermatitis, and a limp. (PageID 417-18.)

 On February 9, 2011, Dr. Key noted Sweet’s complaints of back and neck pain

and sciatica. (PageID 491.) Sweet had a positive straight leg raise test on the right and

tenderness in his lumbar spine, but full flexion in his lumbar spine and normal gait and

station. (PageID 492.) 

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On February 18, 2011, PA Gross completed a medical source statement as to

Sweet’s physical capacity. According to PA Gross, Sweet can lift and carry five pounds,

stand and walk less than one hour at a time and in total in an eight-hour day, sit less

than four hours at a time and in total in an eight-hour day, rarely climb, balance, stoop,

crouch, kneel and crawl, occasionally reach, handle, feel, and perform fine and gross

manipulation, and rarely or never push and pull. He must also avoid heights and

moving machinery. PA Gross also opined that Sweet needed additional rest periods

besides the normal breaks provided in a workday, required a sit/stand at-will option.

Sweet also experienced severe pain. PA Gross reported that Sweet had not been

prescribed a cane, walker, brace, or TENS unit but is pending surgery. PA Gross listed

Sweet’s medical findings of neck and back pain, decreased range of motion, crepitus,

numbness down the leg and numbness and decreased strength of the hands and fingers

due to degenerative disc disease with nerve impingement to support of her opinion. 

PA Gross concluded that extensive movement can worsen Sweet’s condition. (PageID

473-74).

On April 15, 2011, Sweet presented to PA Schoor with “incapacitating” back

pain. (PageID 481.) Examination of the cervical spine revealed tenderness, decreased

extension, and decreased left and right lateral bending and physical examination of the

lumbar spine revealed decreased flexion and extension, decreased lateral bending,

decreased rotation, and positive straight leg raising bilaterally. (PageID 482.)

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Steven Priano, M.D. Consulting orthopedic surgeon, Dr. Priano, examined

Sweet’s right shoulder on May 13, 2009 and found decreased range of motion, pain with

internal rotation, tenderness along the AC joint, positive cross arm abduction test, and

positive Neer and Hawkin’s sign. Sweet’s gait was within normal limits. Dr. Priano

noted the MRI findings were consistent with impingement and AC arthritis. Dr. Priano

recommended arthroscopy, decompression and possible open distal clavicle excision of

the right shoulder. (PageID 302-03.)

Sweet presented to Dr. Priano on January 6, 2010 for knee problems. Sweet’s left

knee MRI showed some patellar chondromalacia. Dr. Priano offered injections, antiinflammatory medications, and therapy, but Sweet wanted to undergo arthroscopy

with possible chondroplasty. (PageID 461.) Dr. Priano performed a left knee

arthroscopy with chondroplasty on January 28, 2010. (PageID 407-08.) Sweet developed

a recurrence of left knee pain in September 2010. His left knee range of motion was

slightly reduced compared to his right knee. Dr. Priano diagnosed Sweet with a

recurrence of knee arthritis and provided a cortisone injection. (PageID 454.) In

November 2010, Dr. Priano found that clinically, Sweet had a meniscus tear and he

ordered an MRI. (PageID 453.) The MRI of Sweet’s left knee revealed a small joint

space effusion, no evidence of a meniscal tear, and intact ligamentous structures.

(PageID 463-64.) Dr. Priano proceeded with arthroscopic chondroplasty. (PageID 452.)

Bradford Mullin, M.D., F.A.C.S. Consulting neurosurgeon, Dr. Mullin, evaluated

Sweet on August 11, 2009. Dr. Mullin noted Sweet had been treated with cortisone

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shots, prednisone and Naprosyn without improvement in his neck and back pain. Dr.

Mullin reviewed the MRIs and believed his bulging discs at C6-7 and C5-6 and severe

central stenosis with neural foraminal changes were the source of Sweet’s neck pain. 

Dr. Mullin did not think that the issues were surgical at that point in time, though Sweet

might respond to a C5-6, C6-7 cervical discectomy, fixation and fusion, and suggested

pain management and recommended a good course of conservative therapy. (PageID

331.)

Sweet returned to Dr. Mullin on February 23, 2010 for increasing difficulty with

his neck and arms. Dr. Mullin offered an anterior cervical discectomy, fixation

and fusion, C5-6, C6-7. (PageID 370.)

Robert Masone, M.D. Dr. Masone, a pain specialist, treated Sweet from

September 2009 through January 2010 for continued pain across his cervical spine,

upper back, lower back, and down the right lower extremity. (PageID 357-68.) 

Initially, Dr. Masone reported that Sweet sat without any apparent distress and

exhibited normal reflexes and muscle strength in all four extremities, a negative

straight-leg raise test, and pain with hyperextension of the lumbar spine and during

transition from sitting to standing. (PageID 363.) He diagnosed Sweet with lumbar

spondylosis and cervical spondylosis, prescribed anti-inflammatory medication, and

recommended physical therapy. (PageID 364.)

Sweet received three cervical epidural steroid injections, in October and 

November 2009. (PageID 359-61.) Sweet reported 60% relief from his injection for eight

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hours, but that his pain returned dramatically. (PageID 358.) Dr. Masone noted that

Sweet sat without any apparent distress, had an antalgic gait, was tender to palpation

through the left lower back, and exhibited normal deep tendon reflexes in the upper

extremities, full muscle strength in the upper extremities, and good cervical range of

motion that was slightly limited at the end range. Id.

In January 2010, Dr. Masone noted that conservative measures such as injections,

nerve modulating medicines, muscle relaxers, anti-inflammatories, and physical

therapy had failed, so he referred Sweet back to Dr. Mullin for further care. (PageID

357.)

Myung Cho, M.D. On October 28, 2009, Dr. Cho, a state agency physician

reviewed the record and found that Sweet could occasionally lift 20 pounds, frequently

lift 10 pounds, stand, walk and/or sit for about six hours in an eight-hour day. (PageID

338.) Dr. Cho also found that Sweet could not perform frequent overhead reaching and

could only occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. 

(PageID 339-40.) In March 2010, another state agency physician, Jerry McCloud, M.D.,

reviewed the record and affirmed Dr. Cho’s opinion. (PageID 381.)

Fairfield Medical Center - Physical Therapy. Sweet participated in three physical

therapy sessions in September 2009. (PageID 345-48.) Initially, Sweet reported that his

symptoms are aggravated by sitting for a long period of time, lying on his back, and

walking. (PageID 346.) A course of four to eight weeks of physical therapy, two to three

times a week was planned. His therapist reported that Sweet exhibited good

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rehabilitation potential. Id. Traction did not help and after three sessions Sweet

complained of increased pain and muscle tightness. (PageID 345.) Pool therapy was

recommended but Sweet asked for treatment to be placed on hold since his doctor was

ordering cortisone injections. Id.

Fairfield Medical Center - Emergency Department. In November 2008, Sweet

presented to the emergency room complaining of chest pain going into his left arm and

cramping in his legs. (PageID 304-17.) Sweet was admitted and underwent a cardiac

catheterization which was essentially normal with mild left ventricular hypertrophy

and mild mitral regurgitation. (PageID 311.) A lower arterial study for claudication

revealed present, but weak, bilateral pulses and little hair on the lower extremities. 

(PageID 317.)

Sweet presented to the emergency room with complaints of knee pain and

swelling in December 2009. (PageID 349-55.) Sweet was diagnosed with left knee pain,

advised to elevate his leg and prescribed Naprosyn as needed and a knee immobilizer. 

(PageID 353.)

Sweet presented to the emergency room in January 2011 with a longstanding

history of chronic back pain, describing his pain as “unbearable” beginning at the base

of the skull and going into his tailbone. (PageID 505.) A CT scan taken of Sweet’s

cervical spine showed a mild C6-7 disc osteophyte complex causing mild bilateral

neural foraminal narrowing, findings that were not significantly different from his prior

imaging study. (PageID 512-13.) An x-ray of the lumbar spine showed mild L1 and L2

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disc space narrowing. (PageID 514.) Sweet was diagnosed with a cervical and lumbar

strain and degenerative disc disease. (PageID 508.)

Sweet was seen in the emergency room in May 2011 with complaints of right

hand pain. (PageID 498.) Sweet’s upper extremities and lower extremities were all

essentially normal upon examination and he exhibited full range of motion in his knees. 

(PageID 495.) X-rays of Sweet’s right hand were normal. (PageID 502.) Sweet was

diagnosed with right arm swelling and edema with an undetermined etiology. (PageID

498.)

Administrative Law Judge’s Findings. The administrative law judge found that:

1. The claimant meets the insured status requirements of the Social

Security Act through December 31, 2013.

2. The claimant has not engaged in substantial gainful activity since July

13, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971

et seq.).

3. The claimant has the following non-severe impairments: Disorders of the

Skin and Cerumen Impaction (20 C.F.R. 404.1521 and 416.921).

4. The claimant has the following severe impairments: Degenerative Disc

Disease of the Cervical and Lumbar Spine [l], Lumbago, Sciatica, Essential

Hypertension, Hyperlipidemia, Patellar Chondromalacia of the Knee,

Obesity, and Edema (20 CFR 404.1520(c) and 416.920(c)).

[footnote in decision]: [1] The claimant’s back impairments have been

variously diagnosed throughout the record and these severe back

impairments are meant to generally encompass all diagnosed back

conditions...

5. The claimant does not have an impairment or combination of

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impairments that meets or medically equals the severity of one of the

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

6. After careful consideration of the entire record, the [administrative law

judge] finds that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except

he requires the ability to change from a sitting to a standing position (and

vice versa) every thirty minutes, can only push pull with his right upper

extremity on a frequent basis, can only occasionally operate foot controls

with his right lower extremity, and can never climb ladders, ropes or

scaffolds. Furthermore, the claimant can only occasionally climb ramps and

stairs, and can only occasionally stoop, kneel, crouch, crawl, or balance. In

addition, the claimant can only occasionally reach overhead with his right

upper extremity, and can only frequently engage in bilateral gross

manipulation and fine-finger manipulation of objects. Finally, the claimant

must avoid concentrated exposure to the use of hazardous machinery,

operational control of moving machinery, and unprotected heights.

7. The claimant is unable to perform any past relevant work (20 CFR

404.1565 and 416.965).

8. The claimant was born on February 23, 1973 and was 36 years old,

which is defined as a younger individual age 18-49, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

9. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

10. Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a framework

supports a finding that the claimant is “not disabled,” whether or not the

claimant has transferable job skills (See SSR 82-41 and 20 CFR Part

404, Subpart P, Appendix 2).

11. Considering the claimant’s age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

12. The claimant has not been under a disability, as defined in the Social

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Security Act, from July 13, 2009, through the date of this decision (20

CFR 404.1520(g) and 416.920(g)).

(Page ID 42-51.)

 

Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings

of 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. 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 (1950)); Wages v. Secretary of

Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Sweet argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge failed to use the appropriate legal standards in the

evaluation of plaintiff’s credibility. According to plaintiff, the administrative law

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judge purported to consider Sweet’s testimony, but found that his alleged

limitations were more debilitating than reflected in the objective evidence and

that his alleged limitations were not consistent with his activities. The

administrative law judge’s limited analysis fails to articulate the actual weight

given to Sweet’s testimony as a whole and lacks any detailed explanation of the

evidence relied upon to support the administrative law judge’s view of the

plaintiff’s credibility.

• The administrative law judge failed to evaluate plaintiff’s IQ deficits as a severe

impairment. Sweet argues that he has presented objective evidence of a

significant intellectual impairment. Specifically, Sweet argues that the 

administrative law judge did not consider his IQ deficits despite the fact that the

issue was raised at the hearing; because he has the requisite IQ scores; received

services through a program for the developmentally handicapped; and

demonstrated deficits in adaptive behavior in the areas of motor skills, social

communication and community living skills.

Analysis Evaluation of Plaintiff’s Credibility.

Plaintiff’s first claim of error finds fault with the administrative law judge’s

conclusion that his testimony was not entirely credible. Specifically, Sweet claims that

the administrative law judge failed to consider all the factors listed in Social Security

Ruling 96-7p. With respect to plaintiff’s subjective complaints of back and knee pain,

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plaintiff alleges that the administrative law judge failed to cite to any of the factors set

forth is SSR 96-7p. (Doc. No. 12 at PageID 544-47.) Plaintiff argues that his treating

sources, including PA Gross and Drs. Masone and Mullin have provided objective

evidence and medical opinions supporting Sweet’s testimony regarding his pain and

limitations. Id. Plaintiff also claims that his testimony and reports to the administration

are corroborated by the objective medical evidence. (Id. at PageID 545-46.) 

“The administrative law judge’s assessment of credibility is entitled to great

weight and deference, since he had the opportunity to observe the witness's demeanor.”

Infantado v. Astrue, 263 Fed. Appx. 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of

Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 Fed.Appx.

988, 995 (6th Cir. 2007) (declining to disturb the administrative law judge’s credibility

determination, stating that: “[w]e will not try the case anew, resolve conflicts in the

evidence, or decide questions of credibility” (citation omitted)).

This deference extends to an administrative law judge’s credibility

determinations “with respect to [a claimant’s] subjective complaints of pain.” Allen v.

Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009) (quoting Siterlet v. Sec’y of Health &

Human Servs., 823 F.2d 918, 920 (6th Cir.1987)). In Duncan v. Secretary of Health and

Human Services, 801 F.2d 847, 853 (6th Cir. 1986), the Court of Appeals for the Sixth

Circuit established the following test for evaluating complaints of disabling pain. First,

the Court must determine “whether there is objective medical evidence of an

underlying medical condition.” If so, the Court must then

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examine: (1) whether objective medical evidence confirms the severity of

the alleged pain arising from the condition; or (2) whether the objectively

established medical condition is of such a severity that it can reasonably

be expected to produce the alleged disabling pain.

Duncan, 801 F.2d at 853.

Despite this deference, “an administrative law judge’s assessment of a claimant’s

credibility must be supported by substantial evidence.” Walters, 127 F.3d at 531. The

administrative law judge’s decision on credibility must be “based on a consideration of

the entire record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). 

“Discounting credibility to a certain degree is appropriate where an administrative law

judge finds contradictions among the medical reports, claimant’s testimony, and other

evidence.” Walters, 127 F.3d at 531. Furthermore, in assessing credibility, the

administrative law judge may consider a variety of factors including “the location,

duration, frequency, and intensity of the symptoms; . . . [and] the type, dosage,

effectiveness, and side effects of any medication taken to alleviate the symptoms . . .”

Rogers, 486 F.3d at 247.

In the instant case, the record is replete with objective medical evidence

indicating that plaintiff had medically determinable impairments during the relevant

period. The administrative law judge acknowledged these impairments, and further

recognizes that these impairments “could reasonably be expected to produce

[plaintiff’s] pain or other symptoms.” (PageID 44.) The administrative law judge

determined, however, that after considering the intensity, persistence, and limiting

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effect of Sweet’s impairments, he was capable of light exertional work. (PageID 45.) In

making this credibility determination, the administrative law judge properly relied on

the record evidence, including objective medical findings and plaintiff’s own statements

about his daily activities. See 20 C.F.R. § 404.1529(c)(2) (objective medical findings are

useful in assessing the intensity and persistence of a claimant’s symptoms) and 20

C.F.R. § 404.1529(c)(3)(i) (daily activities may be useful to assess nature and severity of

claimant’s symptoms).

The administrative law judge relied on the two state agency reviewing

physicians, Drs. Cho and McCloud, who opined that plaintiff could perform the

exertional requirements of light work, and PA Martin, who reported that plaintiff could

frequently lift twenty-one to twenty-five pounds, which exceeds the lifting

requirements of light work. See PageID 49, 319, 338-40, 381. The administrative law

judge noted that the residual functional capacity is actually more restrictive than each of

these opinions. (PageID 49.)

Dr. Masone’s objective findings also provide support for the administrative law

judge’s credibility determination regarding plaintiff’s subjective complaints of pain. 

plaintiff reported to Dr. Masone that his medications did not relieve his pain, yet Dr.

Masone’s record does not document complaints supporting his testimony that his

medications caused lightheadedness and seeing spots. (PageID 80, 357.) There is also

the issue of physical therapy. Plaintiff’s statements to Dr. Masone about why he

discontinued physical therapy were inconsistent with the reasons documented in the

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physical therapy treatment records. (PageID 45.) Plaintiff told Dr. Masone “that he

discontinued physical therapy because the therapist said it would not help him.” (Id.,

PageID 362.) However, as the administrative law judge found “the physical therapy

records . . . indicate that it was [plaintiff] who discontinued the services and there was

every indication that the therapist thought that ongoing therapy could relieve most of

[plaintiff]’s pain.” (PageID 45.) As the physical therapy treatment notes show, the

physical therapist actually felt that plaintiff exhibited good rehabilitation potential. 

(PageID 346.) She recommended switching him to pool therapy because he complained

of pain after his first three sessions. (PageID 345.) However, plaintiff cancelled and

failed to show for his subsequent appointments, indicated that he wished to put

physical therapy on hold while he waited for approval of cortisone shots, and failed to

re-contact the physical therapy clinic about resuming therapy. Id.

Finally, the administrative law judge found that plaintiff’s statements regarding

his varied activities contradict his allegations concerning the intensity, duration, and

limiting effects of his symptoms. (PageID 49.) The administrative law judge noted that

plaintiff stated that he was able to sit down and watch movies, could walk to get

around, went fishing a year ago and caught a few fish, and cooked once per week. 

(PageID 48, 77-79.) On a typical day, he took his dog outside for a walk that lasted

about fifteen to twenty-five minutes. (PageID 76.)

Based upon the foregoing, the Magistrate Judge finds that the administrative law

judge’s assessment of plaintiff’s credibility was based on consideration of the entire

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record and is supported by substantial evidence. Accordingly, applying the applicable

deferential standard of review, the undersigned concludes that the administrative law

judge’s credibility determination was not erroneous.

IQ deficits as a severe impairment under Listing §12.05.

Plaintiff next argues that the administrative law judge failed to evaluated his IQ

deficits as a severe impairment. According to Sweet, the objective evidence and school

reports prove that he has mental limitations that cause more than a minimal degree of

restriction in his ability to reason, communicate and adapt. (See, Doc. No. 12 at PageID

547-48.)

20 C.F.R. 404.1520(c) and 416.920(c) explain that a “severe impairment” refers

to an “impairment or combination of impairments which significantly limits your

physical or mental ability to do basic work activities.” The “severe impairment”

determination at step two of the sequential analysis has been characterized as a “de

minimis hurdle.” See Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (“[A]n impairment

can be considered not severe only if it is a slight abnormality that minimally affects

work ability regardless of age, education, and experience.”); 20 C.F.R. § 404.1521(a).

Although “in the vast majority of cases a disability claim may not be dismissed without

consideration of the claimant's individual vocational situation.... the severity

requirement may still be employed as an administrative convenience to screen out

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claims that are ‘totally groundless’ solely from a medical standpoint.” Higgs, 880 F.2d at 862-63.

Plaintiff argues that the administrative law judge erred in concluding that

plaintiff does not suffer from a severe mental impairments -- i.e., mental retardation. 

The administrative law judge does not point to any evidence in the record to support

this conclusion, and no doctor in the record has stated affirmatively that Sweet suffers

from mental retardation. Based on the above, the Magistrate Judge is hesitant to

conclude that substantial evidence supports the administrative law judge’s

determination that plaintiff’s school records/IQ scores do not result in any additional

and significant work-related limitation of function. In so determining, the Magistrate

Judge does not find necessarily that plaintiff’s IQ scores do result in additional

functional limitations, only that the administrative law judge’s findings and analysis

with respect to this point may be inadequate.

However, that does not end the Court’s inquiry. In order to meet Listing 12.05,

plaintiff must demonstrate that he satisfies all the elements of the Listing. See e.g., Foster

v. Halter, 279 F.3d 348, 353 (6th Cir. 2001); Lawson v. Comm’r of Soc. Sec., 192 Fed. Appx.

521, 529 (6th Cir. 2006) (citing Sullivan v. Zebley, 493 U.S. 521, 532 (1990), which stated

that “[a]n impairment that manifests only some of those criteria, no matter how

severely, does not qualify”). Defendant argues that substantial evidence supports the

administrative law judge’s decision that plaintiff does not meet Listing 12.05 because

plaintiff has not established the requisite deficits in adaptive functioning as an adult. In

support of this argument, Defendant points to evidence that between 1986 and 1989,

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plaintiff’s IQ scores improved; plaintiff testified that he graduated from high school and

could perform basic mathematics; and Sweet worked as a truck driver, car dealership

lube technician, and forklift operator, which were all semi-skilled jobs. (PageID 66-67,

87, 197, 204.) Even though the administrative law judge did not articulate the above

rationale in his decision, any error with respect to this point is harmless. The burden of

showing that an error is harmful normally falls upon the party attacking the agency's

decision. Shinseki v. Sanders, 129 S.Ct. 1696 (2009) . 

Defendant also argues that Sweet may not meet the requirements for mental

retardation in the Diagnostic Statistical Manual-IV (DSM-IV). See, Doc. No. 17 at PageID

573. Whether or not Sweet meets the requirements of the DSM-IV is relevant to

whether or not he meets Listing 12.05. The Sixth Circuit has “recognized that Listing

12.05 tracks the Diagnostic & Statistical Manual of Mental Disorders, one of the leading

texts in medicine.” Burrell v. Comm’r of Soc. Sec., 238 F.3d 419 (Table), 2000 WL 1827799

at *2 (6th Cir. Dec. 8, 2000) (citing Brown v. Sec. of Health and Hum. Servs., 948 F.2d 268,

270 (6th Cir. 1991)). Thus, as noted above, plaintiff must meet all of the requirements of

the Listing, which include the entire diagnostic description in the introductory

paragraph -- not just the portion regarding deficits in adaptive functioning -- and one of

four independent sets of criteria. See Foster, 279 F.3d at 353. Accordingly, plaintiff must

present evidence that he has “significantly subaverage general intellectual functioning

with deficits in adaptive functioning initially manifested” before age 22.

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Significant to whether or not a claimant meets the diagnostic description in

Listing 12.05 is whether there is a diagnosis of mental retardation. In this case, there

simply is no medical evidence supporting a severe mental impairment. There is no

diagnosis of mental retardation. The most recent intelligence test scores place plaintiff in

the borderline range of intellectual functioning. (PageID 197.) The record shows that

Sweet exhibited normal thought content, cognition, memory, concentration, abstract

thinking, judgment, and insight. (PageID 286, 435, 437.) 

In showing that he meets the requirements of Listing 12.05, plaintiff cannot

merely rely upon omissions in the administrative law judge’s written decision because

it is his burden to establish that he satisfies all of the elements of the Listing. See Foster,

279 F.3d at 353. 

Based on the above, the Magistrate Judge concludes that plaintiff has failed to

demonstrate

that he satisfies the diagnostic description in Listing 12.05's introductory paragraph.

Since plaintiff has failed to make this showing, plaintiff has not met his burden, and the

Court must uphold the conclusion of the administrative law judge with respect to this

issue.

Accordingly, it is RECOMMENDED that the decision of the Commissioner of

Social Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s

motion for summary judgment be DENIED and that defendant’s motion for summary

judgment be GRANTED.

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If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, 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)(B); Rule 72(b),

Fed. R. Civ. P.

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 waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

 s/Mark R. Abel 

United States Magistrate Judge

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