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Case: 2:12-cv-00595-EAS-NMK Doc #: 21 Filed: 07/10/13 Page: 1 of 13 PAGEID #: 634

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION









Civil Action 2:12-CV-595
Judge Sargus
Magistrate Judge King



vs.





Plaintiff,







JAMES O. MORRIS,





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

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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.



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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.



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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



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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



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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



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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



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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,



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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



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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



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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.


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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.


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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

















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