IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Albert Jefferson, :

Plaintiff Civil Action 2:12-cv-127

:

v. Judge Graham

:

Michael J. Astrue, Magistrate Judge Abel

Commissioner of Social Security, :

Defendant 

REPORT AND RECOMMENDATION

Plaintiff Albert Jefferson 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 maintains that he became disabled, at age 37, due to

epilepsy and spine damage. (PageID 238.) He was 43 years old at the time of the

hearing before the administrative law judge, who found that Jefferson retains the ability

to perform a reduced range of work having light exertional demands. The work could

involve simple repetitive tasks and some complex work with no strict production

requirements or fast paced work. (Page ID 46-47.) Plaintiff argues that the decision of

the Commissioner denying benefits should be reversed because the administrative law

judge erred when he found that Jefferson’s impairments do not satisfy the criteria for

mild mental retardation set forth in section 12.05 (C) in Appendix I of the regulations.

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Procedural History. Plaintiff Jefferson filed his applications for disability

insurance benefits and supplemental security income on March 23, 2009, alleging that

he became disabled on July 8, 2005, at age 37. (PageID 179-85, 186-91.) The applications

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

before an administrative law judge. On May 24, 2011, an administrative law judge held

a hearing at which plaintiff, represented by counsel, appeared and testified. (PageID 88-

128, 139-40.) A vocational expert also testified. (PageID 128-38.) On August 15, 2011,

the administrative law judge issued a decision finding that Jefferson was not disabled

within the meaning of the Act. (PageID 42-52.) On December 9, 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. Jefferson was born December 24, 1967. 

(PageID 50, 220.) He has an eleventh grade “limited” education attending special

education classes. (PageID 244.) Jefferson previously worked as a fast food worker,

janitor housekeeper/cleaner, furniture mover, and material handler. (PageID 225, 239.) 

Plaintiff’s Testimony. Jefferson testified that he lives with his sister, has a

driver’s license and typically drives twice a week. (PageID 88.) He completed the

eleventh grade. (PageID 89.) He stopped going to school due to stress and he began

having seizures. Id. He has attempted to obtain his GED, studying through Job 

Corps. Id. He has vocational training in heavy equipment operation, but did not pass

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the course. (PageID 89-90.) He last worked doing housekeeper/cleaner at a hotel and

stopped working due to seizures and from the chemicals. (PageID 90.)

Jefferson further testified that he has not received any type of mental counseling.

(PageID 96.) When describing a typical day, Jefferson testified that he watches

television. He does the dishes, does not cook, but does fold laundry. (PageID 109.) He

does not have problems following the news or understand “what’s going on.” Id. He

acknowledged having problems reading and writing, he can read “certain words” in the

newspaper. Id. He understood the letters he received from the administration. (PageID

110.) Jefferson has friends that come over to his house. Id. Jefferson admitted to

weekly marijuana use. (PageID 113.) He testified that marijuana helps keep him in a

calmer state. (PageID 114.)

School Records. On March 3, 2006, Sam Geldis, a Supervisor for Psychological

Services at the Department of Special Education at the Columbus Public Schools wrote a

letter explaining that Jefferson’s educational records had been destroyed based on

federal and state retention requirements. (PageID 374.) The only record remaining was

an index card containing IQ scores from January 1980, when Jefferson was 13 years old.

These scores showed a verbal IQ of 69, a performance IQ of 75, and a full scale IQ of 72.

(PageID 375.) Mr. Geldis concluded that “[w]ithout the original psychological

evaluation, it is important that the results of these tests should be interpreted with

caution.” (PageID 374.)

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Medical Evidence of Record. Although the record contains a history of

treatment for numerous issues, plaintiff’s arguments on appeal relate only to his

psychological condition. Accordingly, the Court has similarly restricted the summary

of the evidence.

Michael Wagner, Ph.D. On April 11, 2006, Dr. Wagner, a state agency reviewing

physician determined that there was insufficient evidence in the record to determine

whether Jefferson had any mental impairments. (PageID 376-89.)

Lee Howard, Ph.D. On July 17, 2009, Dr. Howard performed a psychological

evaluation at the request of the Bureau of Disability Determination. (PageID 415-25.) 

Jefferson reported that he experienced panic attack type symptoms occurring twice a

week, crying spells, suicidal ideation, and paranoia. (PageID 416.) Jefferson reported

that he neither had a history of mental health treatment nor a history of psychiatric

hospitalization. Id. Jefferson initially denied any illicit substance abuse to Dr. Howard,

but then indicated he used marijuana once every 2-3 months. (PageID 417.) Dr.

Howard noted that although Jefferson did not report any past drug use, his record

showed two previous convictions for trafficking cocaine, for which he served 2 1⁄2 years

beginning in 1996 and 7 months in 2001. Id. Jefferson reported that he attended school

through 12th grade, with a B to C grade average, and that he did not fail any grade. Id.

Jefferson reported that he was placed in “some” special education classes, but that he

was also in “mixed classes” throughout school. (PageID 418.) Jefferson reported that he

worked in the past in fast food, unloading trucking, moving/storage, and

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housekeeping, and that he stopped working due to seizures. (Id., PageID 423.)

Dr. Howard reported that Jefferson was appropriately dressed and groomed,

had normal speech, normal mood and affect, had goal-directed and coherent thought,

normal association, low insight and fair judgment. (PageID 419-21.) IQ testing revealed

a verbal score of 68, perceptual reasoning score of 73, working memory index of 89,

processing speed index of 86, and full scale IQ of 73, which placed him in the borderline

range of intellectual functioning. (PageID 425.) Dr. Howard opined that Jefferson’s

effort level on testing “seem[ed] to vary and the overall profile may under-predict true

levels of functioning.” (PageID 421.) Dr. Howard also noted that the “scaled score

range from 3 to 10 would suggest that he is probably functioning more within the dullnormal range or higher and likely underperformed.” Id. Dr. Howard also noted that

Jefferson had a “history of both vocational and educational underachievement.” (PageID

422.)

Dr. Howard diagnosed a panic disorder without agoraphobia and personality

disorder and assigned Jefferson a Global Assessment of Functioning score of 50. (PageID

423.) Dr. Howard opined that Jefferson might have a mild impairment in his ability to

understand, remember and follow instructions, noting Jefferson’s “IQ score appears to

underestimate true levels of functioning.” Id. Dr. Howard found no impairment in his

ability to maintain concentration, persistence, or pace, noting that Jefferson’s

“processing speed and working memory scores are actually superior to [his] basic IQ

score.” (PageID 423-24.) Dr. Howard further opined that Jefferson had no significant

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impairment in his ability to relate to others and a mild impairment in his ability to

withstand work stress and pressure. (PageID 434.) Dr. Howard concluded that

Jefferson could “perform in low to moderate stress positions” and was capable of

managing his own funds. Id.

Jennifer Swain, Ph.D. On August 8, 2009, Dr. Swain, a state agency psychologist,

reviewed the record and found Jefferson was moderately limited in his ability to

understand, remember, and carry out detailed instructions and to complete a normal

workday and workweek without interruptions from psychologically based symptoms

and to perform at a consistent pace without an unreasonable number and length of rest

periods. (PageID 426-27.) Dr. Swain found plaintiff was not significantly limited or

there was no evidence of limitation in the remaining work related activities. Id.

In determining Jefferson’s limitations, Dr. Swain noted “in order to give

[Jefferson] the benefit of the doubt, he would have a “moderate impairment for u/r/f

[understanding, remembering and following instruction] and c/p/p [concentration,

persistence, and pace] of detailed complex tasks.” (PageID 429.) According to Dr.

Swain, due to Jefferson’s panic attacks, he would need to work in an occupation that is

not high stress with no production pressures. Id. Dr. Swain concluded that Jefferson

retained the ability to perform simple and some more detailed tasks in a relatively static

setting. Id.

In a Psychiatric Review Technique, Dr. Swain noted Jefferson had moderate

impairment in his ability to maintain concentration, persistence or pace. (PageID 440.)

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In January 2010, another state agency psychologist, Alice Chambly, Psy.D.,

reviewed the file and affirmed Dr. Swain’s assessment. (PageID 486.)

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 September 30, 2011 [citation to record omitted].

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

8, 2005, the alleged onset date (20 CFR 404.1571 et seq., and 416.971

et seq.).

3. The claimant has the following severe impairments: seizure disorder,

chronic headaches, cervical disc disease, panic disorder without

agoraphobia, and personality disorder (20 CFR 404.1520(c) and

416.920(c)).

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

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).

5. 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) but

with the following limitations: able to lift 20 pounds occasionally and 10

pounds frequently; able to sit, stand and walk for 6-hours each in and 8-

hour workday; only occasionally bending, stooping, climbing of stairs;

precluded from heights and dangerous machinery; no concentrated

exposure to dust, fumes, chemicals or flashing lights; and can perform

simple repetitive task and some complex work with no strict production

requirements or fast paced work.

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

404.1565 and 416.965).

7. The claimant was born on December 24, 1967 and was 37 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).

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8. The claimant has a limited education and is able to communicate in

English (20 CFR 404.1564 and 416.964).

9. 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).

10. 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)).

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

Security Act, from July 8, 2005, through the date of this decision (20

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

(Page ID 44-52.)

 

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.”’ 

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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. Jefferson argues that the decision of the Commissioner

denying benefits should be reversed because the administrative law judge erred in

failing to find that Jefferson met or equaled the requirements of Listing 12.05 (C). 

Plaintiff essentially argues that he satisfies Listing12.05 (C) because he has the requisite

IQ score and another impairment which imposes additional and significant workrelated limitations.

Analysis. The criteria for mental retardation is contained in §12.05 of the

Listings: 

The structure of the listing for mental retardation (12.05) is different from

that of the other mental disorders listings. Listing 12.05 contains an

introductory paragraph with the diagnostic description for mental

retardation. It also contains four sets of criteria (paragraphs A through D).

If your impairment satisfies the diagnostic description in the introductory

paragraph and any one of the four sets of criteria, we will find that your

impairment meets the listing. Paragraphs A and B contain criteria that

describe disorders we consider severe enough to prevent your doing any

gainful activity without any additional assessment of functional

limitations. For paragraph C, we will assess the degree of functional

limitation the additional impairment(s) imposes to determine if it

significantly limits your physical or mental ability to do basic work

activities, i.e., is a “severe” impairment(s), as defined in §§ 404.1520(c) and

416.920(c). If the additional impairment(s) does not cause limitations that

are “severe” as defined in §§ 404.1520(c) and 416.920(c), we will not find

that the additional impairment(s) imposes “an additional and significant

work-related limitation of function,” even if you are unable to do your

past work because of the unique features of that work. Paragraph D

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contains the same functional criteria that are required under paragraph B

of the other mental disorders listings.

12.05 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 the

requirements in A, B, C, or D are satisfied. [. . .]

C. 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. §404, Subpt. P, App. 1, §12.05.

The regulations provide that a claimant will meet the listing for mental

retardation only “[i]f [the claimant’s] impairment satisfies the diagnostic description in

the introductory paragraph and one of the four sets of criteria....” Foster v. Halter, 279

F.3d 348 (6th Cir. 2001) (citations omitted).

In the instant case, plaintiff fails to present evidence that he meets or equals the

requirements of Listing 12.05 (C). As indicated above, plaintiff must present evidence

showing he meets or equals the diagnostic description in the introductory paragraph of

Listing 12.05, i.e., that he suffers from mental retardation: “significantly subaverage

general intellectual functioning with deficits in adaptive functioning initially manifested

during the developmental period.” The administrative law judge found the record is

devoid of such evidence. (PageID 46.) He acknowledged that the record revealed a full

scale IQ of 73, but this was felt to be an underestimate and that plaintiff was functioning

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more within the dull-normal range. Id. The only evidence present in the record for the

period before Jefferson reached age 22 shows IQ scores from 1980, when plaintiff was 13

years old. See, PageID 375. No medical source in the record has diagnosed plaintiff

with mental retardation. In fact, Dr. Howard opined that Jefferson’s IQ testing placed

his overall intellectual functioning in the “ borderline range of intellectual functioning.” 

(PageID 425.) Dr. Howard opined that Jefferson’s effort level on testing “seem[ed] to

vary and the overall profile may under-predict true levels of functioning.” (PageID 421.) 

Dr. Howard also noted that the “scaled score range from 3 to 10 would suggest that he

is probably functioning more within the dull-normal range or higher and likely

underperformed.” Id. Dr. Howard also noted that Jefferson had a “history of both

vocational and educational underachievement.” (PageID 422.)

Plaintiff argues that the listing does not actually require a diagnosis of mental

retardation, and asserts that he has met this listing because IQ testing performed when

he was 13, revealed a verbal IQ of 69, performance IQ of 78, and a full scale IQ of 72. 

(PageID 375.) Plaintiff also contends that based on his testimony of that he was in

special education classes in school, only completed the eleventh grade and has been

unable to pass the GED test (PageID 89-90) further established that he meets the Listing

12.05(C). Along with the above, plaintiff argues that because the administrative law

judge identified additional impairments of seizure disorder, chronic headaches, cervical

disc disease, panic disorder without agoraphobia, and personality disorder, these

severe impairments establish that Jefferson meets the criteria of Listing 12.05(c).

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Listing 12.05(C) has three elements: (1) the claimant experiences significantly

subaverage general intellectual functioning with deficits in adaptive functioning that

initially manifested during the developmental period (i.e., before the age of

twenty-two); (2) the claimant has a verbal, performance, or full scale IQ of 60 through

70; and (3) the claimant suffers from a physical or other mental impairment imposing an

additional and significant work related limitation of function. Turner v. Comm’r of Soc.

Sec., 381 Fed.Appx. 488, 491 (6th Cir. 2010), citing West v. Comm’r of Soc. Sec. Admin., 240

Fed.Appx. 692, 697-98 (6th Cir. 2007). Here Dr. Howard found that Jefferson was likely

functioning in the dull-normal range of intelligence. Further, there is no evidence in the

record that Jefferson exhibited deficits in adaptive behavior initially manifested during

the developmental period, that is, before age 22.

Since medical equivalence “must be supported by medically acceptable clinical

and laboratory diagnostic techniques,” 20 C.F.R. § 416.926(b), and Jefferson has failed to

identify any medical opinion showing his impairment equaled Listing 12.05 (C),

Jefferson has failed to carry his burden of showing equivalence to a Listing. 

As there is substantial evidence in the record to support the administrative law

judge's finding that Jefferson did not suffer deficits in adaptive functioning sufficient to

render him disabled under Listing 12.05(C), I do not find that the administrative law

judge erred in this determination.

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

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

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

judgment be GRANTED.

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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