IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JAMES O. MORRIS, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-595 

 Judge Sargus 

 Magistrate Judge King 

Carolyn Colvin, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION 

 This is an action instituted under the provisions of 42 U.S.C. 

§§ 405(g), 1383(c), for review of a final decision of the Commissioner 

of Social Security denying plaintiff’s applications for disability 

insurance benefits and supplemental security income benefits. 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 James O. Morris filed his initial applications for 

benefits on June 22, 2005, as a result of delayed learning. The 

applications were denied, PageID 100-13, 210, and plaintiff did not 

appeal that decision. 

 Plaintiff filed his current applications for benefits on May 29, 

2008, alleging that he has been disabled since May 3, 2008, again by 

reason of low cognitive functioning. PageID 191-93, 194-200, 214. The 

applications were denied initially and upon reconsideration, and 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 1 of 13 PAGEID #: <pageID>
2

plaintiff requested a de novo hearing before an administrative law 

judge. 

 A hearing was held on January 11, 2011, at which plaintiff, 

represented by counsel, appeared and testified. Steven S. Rosenthal, 

a vocational expert, appeared but was not called to testify. PageID 

96. In a decision dated February 16, 2011, the administrative law 

judge concluded that plaintiff is not disabled within the meaning of 

the Social Security Act. PageID 67-74. That decision became the final 

decision of the Commissioner of Social Security when the Appeals 

Council declined review on May 14, 2012. PageID 46-50. 

 Plaintiff was 32 years old on his alleged disability onset date. 

PageID 209. He has a high school education in classes for the 

developmentally handicapped. PageID 83-84, 219. He has past 

relevant work experience as a golf course laborer, a packer, and a 

box assembler. PageID 215. 

 Plaintiff lives in a camper next to his mother’s and 

step-father’s house. PageID 91. He does not bathe or change clothes 

regularly. PageID 92. He can prepare some simple meals; his mother 

sometimes reads preparation directions to him. PageID 88. He is 

unable to manage money or make change. PageID 88. 

 Plaintiff testified at the administrative hearing that he was 

bullied in school, PageID 85, and grew “more angry at people.” PageID

85-86. That anger has never gone away. PageID 86. Raised voices 

trigger severe anxiety and suicidal thoughts. PageID 91. 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 2 of 13 PAGEID #: <pageID>
3

 Plaintiff takes medication for bipolar disorder, but the 

medication causes negative emotional responses. PageID 88-90. 

Plaintiff's mother helps him remember and attend his medical 

appointments. PageID 87. 

 Plaintiff has held various jobs since high school but quit, or 

was fired, from most positions because he became upset with others 

or was unable to meet the mental demands of the job. PageID 88, 93, 

95. 

 Plaintiff began treatment at Scioto Paint Valley Mental Health 

Center (“Scioto”) in December 2005. PageID 346. At a March 19, 

2008 diagnostic assessment, conducted at the request of plaintiff’s 

attorney, PageID 359-64, plaintiff complained of an “abusive 

childhood, difficulty keeping up on jobs and losing them frequently, 

having no tolerance for yelling and screaming and at times threatening 

to kill himself if folks don’t shut up.” PageID 359. Plaintiff was 

diagnosed with post-traumatic stress disorder and borderline 

intellectual functioning; he was assigned a GAF score of 53.1 PageID

364. He was referred to a psychiatric evaluation and case management 

services. PageID 363. 

 

1

“GAF,” or Global Assessment of Functioning, is a tool used by health-care 

professionals to assess a person's psychological, social, and occupational 

functioning on a hypothetical 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. Martin v. Commissioner, 61 Fed.Appx. 191, 194 n.2 (6th Cir. 2003). 

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

(“DSM-IV-TR”) at 32-34. Individuals with scores of 51-60 are classified as having 

“moderate symptoms ... or moderate difficulty in social, occupational, or school 

functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV-TR 

at 34.

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 3 of 13 PAGEID #: <pageID>
4

 Pam Sayre-Butt, LISW, has provided counseling to plaintiff, 

PageID 359-66, 371-407, 451-63, 489-90, 492, 521-27, 570-77, and J. 

Mark Hamill, M.D., provides medication management, PageID 367-69, 

464-65, 550-58, 571, 573. Treatment notes reflect plaintiff’s 

reports of anxiety and irritability when yelled at or when others 

speak in loud voices; he does not like strangers approaching him. 

 In January 2008, Earl Stump, Ph.D., a psychologist at Scioto, 

examined plaintiff upon the referral of Ms. Sayre-Butt and diagnosed 

borderline intellectual functioning. PageID 351. According to Dr. 

Stump, plaintiff’s low cognitive functioning “probably” accounts for 

plaintiff’s educational deficiency and poses “significant barriers 

to stable employment.” Id. Plaintiff’s condition has been 

complicated by a “probable Schizotypal Personality Disorder marked 

by odd beliefs and thinking, unusual perceptual experiences, 

suspiciousness, eccentric dress, and an inability to maintain close 

relationships.” Id. Dr. Stump concluded that plaintiff’s employment 

“would be limited to well supervised, laboring jobs with little public 

contact and few demands on educational skills.” PageID 352. The 

following month, Dr. Stump clarified his opinion: by “well 

supervised,” Dr. Stump meant that plaintiff should be closely 

supervised because, in all likelihood, he will make mistakes. 

Moreover, plaintiff’s supervisor should be sensitive to plaintiff’s 

special needs. The environment contemplated by Dr. Stump would be 

similar to a “sheltered workshop.” Plaintiff could not work with the 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 4 of 13 PAGEID #: <pageID>
5

public or with the supervision typical in a “mainstream” job. PageID

353. 

 On July 28, 2008, Steven J. Meyer, Ph. D., reviewed plaintiff’s 

mental health treatment records for the state agency and concluded 

that plaintiff had mild limitations in his activities of daily living, 

and moderate difficulties in maintaining social functioning and in 

maintaining concentration, persistence or pace. PageID 422. Dr. 

concluded that plaintiff has the following mental residual functional 

capacity: 

Although he does have some difficulty getting along with 

people, he specifies that this problem occurs when people 

are being mean or yelling. He does have friends that he 

spends time with and is able to get along when motivated 

to do so. Further, [plaintiff] reported on the ADL form that 

he sees people when lying in bed but he denied current 

symptoms of psychosis, delusions, and hallucinations to 

his TS [treating source]. His statements are partially 

credible. There is no TS opinion regarding the 

[plaintiff]'s ability to work, therefore weight cannot be 

assigned. However, great consideration is given to the 

report supplied by the [plaintiff]’s TS. The [plaintiff] 

appears to have the mental capacity for simple and some 

moderately complex routine tasks, oral and hands on 

instruction, intermittent/occasional interactions with 

others, and some assistance as needed at times of change 

in routine[.] 

PageID 410-11. On February 5, 2009, state agency psychologist Bruce 

Goldsmith, Ph.D., affirmed Dr. Meyers’ opinion. PageID 471. 

 On December 9, 2008, Dr. Hamill completed a mental status 

questionnaire in which he noted that plaintiff acts more like a teen 

than a 32 year old. Plaintiff’s mood and affect alternated between 

euphoric and irritable. He was socially anxious but pleasant and 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 5 of 13 PAGEID #: <pageID>
6

cooperative; he spoke in a pressured manner and was sometimes 

tangential in his conversation. PageID 448. Plaintiff’s IQ score 

fell in the borderline range; he had very limited insight and poor 

judgment. Id. According to Dr. Hamill, plaintiff’s ability to 

remember, understand and follow directions was poor; he could follow 

only very simple and concrete instructions; his ability to maintain 

attention was poor; he could perform only very simple tasks. Plaintiff 

would react “extremely poorly” to pressures in a work setting, even 

to pressure in the form of a request to speed his work pace. PageID

449. 

 On June 1, 2010, Dr. Hamill characterized plaintiff as markedly 

limited in his ability to carry out detailed instructions, to maintain 

attention and concentration for extended periods, to perform 

activities within a schedule, to maintain regular attendance, to be 

punctual within customary tolerances, 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. Plaintiff was moderately limited 

in his abilities to carry out very short and simple instructions, to 

sustain an ordinary routine without special supervision, to work in 

coordination with or proximity to others without being distracted by 

them, to make simple work-related decisions, to interact 

appropriately with the general public, to ask simple questions or 

request assistance, to accept instructions and respond appropriately 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 6 of 13 PAGEID #: <pageID>
7

to criticism from supervisors, to get along with coworkers or peers 

without distracting them or exhibiting behavioral extremes, to 

maintain socially appropriate behavior and to adhere to basic 

standards of neatness and cleanliness. According to Dr. Hamill, 

plaintiff’s condition would likely deteriorate if he were placed 

under the stress of a job. PageID 502-06. 

 In November 2010, Dr. Stump reported that plaintiff’s 

performance on the Daily Living Skills Domain of the Vineland Adaptive 

Behavior Scales indicated that plaintiff’s mental age was eleven 

years old. PageID 547-48. 

 On March 17, 2011, i.e., after the administrative law judge’s 

decision, Dr. Hamill stated that he agreed with Dr. Stump's assessment 

of plaintiff's mental age and opined that plaintiff could not be 

competitive in the workplace. PageID 578. 

 In his decision, the administrative law judge found that 

plaintiff’s severe impairments consist of borderline intellectual 

functioning, an affective disorder, and low back strain. PageID 69. 

The administrative law judge went on to find that plaintiff’s 

impairments neither meet nor equal a listed impairment, including 

Listing 12.04. PageID 69. In assessing plaintiff’s mental 

impairments, the administrative law judge found that plaintiff has, 

inter alia, moderate difficulty in social functioning. PageID 70. 

The administrative law judge next found that plaintiff has the 

residual functional capacity to perform a limited range of medium 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 7 of 13 PAGEID #: <pageID>
8

work. In this regard, although the administrative law judge noted that 

the record since the prior administrative decision contained new and 

material evidence, “the evidence does not establish that the 

claimant’s condition has significantly changed since that time.” 

PageID 72. The administrative law judge therefore “adopted” the 

findings of the prior administrative decision regarding plaintiff’s 

functional capacity. Id. Relying on the vocational evidence 

adduced at the prior administrative hearing, PageID 74, the 

administrative law judge found that plaintiff’s residual functional 

capacity does not preclude the performance of his past relevant work 

as a golf course laborer, packer, and box assembler. Accordingly, the 

administrative law judge concluded that plaintiff is not disabled 

within the meaning of the Social Security Act. PageID 74. 

 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 Servs., 667 F.2d 

524, 535 (6th Cir. 1981). This Court does not try the case de novo, 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 8 of 13 PAGEID #: <pageID>
9

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. 

 In his Statement of Errors, plaintiff contends that the 

administrative law judge’s determination that plaintiff’s mental 

impairments do not meet Listing 12.04 lacks substantial support in 

the evidence because plaintiff’s functional limitations are greater 

than those found by the administrative law judge, that the 

administrative law judge erred in discounting Dr. Hamill’s opinions, 

and that the administrative law judge erred in adopting the residual 

functional capacity assessment and vocational determination made in 

the prior administrative hearing in light of new and material evidence 

and greater limitation of function. Statement of Errors, PageID

595. This Court agrees that the action should be remanded for further 

consideration. 

 The administrative law judge found that plaintiff’s bipolar 

disorder neither meets nor equals a listed impairment. Listing 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 9 of 13 PAGEID #: <pageID>
10

12.04, which addresses affective disorders, requires that a claimant 

satisfy the “A criteria” of the listing and either the “B criteria” 

or the “C criteria” of the listing. The “A criteria” are satisfied 

by medical documentation of bipolar syndrome with a history of 

episodic periods; evidence of persistent disturbances of mood or 

affect is sufficient to satisfy the “A criteria.” Rabbers v. 

Commissioner, Soc. Sec. Admin., 582 F.3d 647, 653 (6th Cir. 2009). 

The “B criteria” are satisfied by a showing of at least two of 

the following functional limitations: (1) a marked restriction of 

activities of daily living, (2) marked difficulties in maintaining 

social functioning, (3) marked difficulties in maintaining 

concentration, persistence, or pace, or (4) repeated episodes of 

decompensation, each of extended duration. 

If the “B criteria” are not met, the listing may nevertheless 

be satisfied if the “C criteria” are met, i.e., with evidence of a 

medically documented history of a chronic affective disorder of at 

least two years’ duration that has caused more than a minimal 

limitation of ability to do basic work activities with symptoms or 

signs currently attenuated by medical or psychosocial support and one 

of the following: (1) repeated episodes of decompensation, each of 

extended duration; (2) a residual disease process that has resulted 

in such marginal adjustment that even a minimal increase in mental 

demands or change in the environment would be predicted to cause the 

claimant to decompensate; or (3) a current history of one or more 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 10 of 13 PAGEID #: <pageID>
11

years’ inability to function outside a supportive living arrangement, 

with an indication of continued need for such an arrangement. 20 

C.F.R. pt. 404, Subpt. P, App.1, § 12.04. 

 In considering whether plaintiff’s affective disorder meets or 

equals the “B criteria” of Listing 12.04, the administrative law 

judge’s findings were identical to those of the state agency 

psychologists, although he did not expressly adopt Dr. Meyer’s 

opinions in making those findings. See PageID 70-71.1

 In considering 

whether plaintiff’s mental impairments satisfy the “C criteria” of 

Listing 12.04, the administrative law judge cited to no opinion 

evidence – or indeed to any evidence in the record - but merely tracked 

the language of the listing: 

There is no medical documentation of repeated episodes of 

decompensation, a residual disease process that has 

resulted in such marginal adjustment that even a minimal 

increase in mental demands or change in the environment 

would be predicted to cause the claimant to decompensate, 

or a current history of an inability to function outside 

of a highly supported living arrangement. 

PageID 71. There is certainly evidence in the record to suggest that 

plaintiff’s mental impairments may satisfy the “C criteria” of 

Listing 12.04: plaintiff has been diagnosed and treated for bipolar 

disorder for more than two (2) years and his relationship with and 

dependence on his mother may reflect an inability to function outside 

of a highly supported living arrangement. However, the 

administrative law judge failed to evaluate that evidence in 

 

1 In considering plaintiff’s residual functional capacity, however, the 

administrative law judge accorded “great weight” to the state agency opinions. 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 11 of 13 PAGEID #: <pageID>
12

connection with his consideration of Listing 12.04. Under these 

circumstances, the Court simply cannot determine whether the 

administrative law judge’s evaluation in this regard enjoys 

substantial support in the record. 

 The Court also concludes that the Commissioner erred in adopting 

the residual functional capacity assessment and vocational 

determination made in the prior administrative proceeding in light 

of the greater limitation of mental function found by the 

administrative law judge in the later proceeding. In the earlier 

proceeding, plaintiff was found to have mild limitation in social 

functioning, PageID 106; in the current proceedings, plaintiff was 

found to have moderate limitation in social functioning, PageID 70. 

Yet, the administrative law judge expressly found that “the 

limitations in the prior ALJ decision have not increased.” PageID

73. He therefore adopted the residual functional capacity and 

vocational evidence of the prior proceeding. PageID 72, 74. 

Because the reasoning of the administrative law judge in this regard 

is internally inconsistent, the Court cannot conclude that the 

Commissioner’s decision enjoys substantial support in the record. 

 It is therefore RECOMMENDED that the decision of the 

Commissioner be reversed and that the action be remanded for further 

proceedings.2

 

 

PageID 73. 2 In light of this recommendation, the Court need not and does not address 

plaintiff’s remaining contention. 

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 12 of 13 PAGEID #: <pageID>
13

 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: July 10, 2013 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge

Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 13 of 13 PAGEID #: <pageID>