BAILEY v. COLVIN

Filing 29

DECISION on Judicial Review: The court AFFIRMS the Commissioner's decision that Ms. Bailey was not disabled (see Decision for details). Signed by Magistrate Judge Debra McVicker Lynch on 9/29/2015.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ASHLEY M. BAILEY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security,
Administration,
Defendant.

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) Case No.: 1:14-cv-1366-DML-JMS
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Decision on Judicial Review
Ashley M. Bailey applied in April 2011 for Supplemental Security Income
disability benefits (SSI) under Title XVI of the Social Security Act. Her application
alleged a disability onset date of February 20, 1997, when she was six years old.
Acting for the Commissioner of the Social Security Administration following a
hearing held January 14, 2013, administrative law judge Mark C. Ziercher issued a
decision on February 22, 2013, finding that Ms. Bailey is not disabled. The Appeals
Council denied review of the ALJ’s decision on June 17, 2014, rendering the ALJ’s
decision for the Commissioner final. Ms. Bailey timely filed this civil action under
42 U.S.C. § 405(g) for review of the Commissioner’s decision.
Ms. Bailey contends the ALJ erred by (a) failing to address listing 12.05C, (b)
failing adequately to support his credibility determination, and (c) failing to account
for her social dysfunction in the RFC. As addressed below, the court rejects Ms.
Bailey’s arguments and AFFIRMS the Commissioner’s decision.

Standard for Proving Disability
To prove disability, a claimant must show she is unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 1382c(a)(3)(A). Ms. Bailey is disabled if her impairments are of such
severity that she is not able to perform the work she previously engaged in and, if
based on her age, education, and work experience, she cannot engage in any other
kind of substantial gainful work that exists in significant numbers in the national
economy. 42 U.S.C. § 1382c(3)(B). The Social Security Administration (“SSA”) has
implemented these statutory standards by, in part, prescribing a five-step
sequential evaluation process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if she is, then she is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then she is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The
third step is an analysis of whether the claimant’s impairments, either singly or in
combination, meet or medically equal the criteria of any of the conditions in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments includes medical conditions defined by criteria the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed

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impairment or presents medical findings equal in severity to the criteria for the
most similar listed impairment, then the claimant is presumptively disabled and
qualifies for benefits. Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir. 2002).
If the claimant’s impairments do not satisfy a listing, then her residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform her past relevant work, then she
is not disabled. The fifth step asks whether there is work in the relevant economy
the claimant can perform, based on her vocational profile (age, work experience, and
education) and her RFC; if so, then she is not disabled.
The individual claiming disability bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets
that burden, then the Commissioner has the burden at step five to show that work
exists in significant numbers in the national economy that the claimant can
perform, given her vocational profile and functional capacity. 20 C.F.R. §
404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would

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accept as adequate to support a conclusion. Id. The standard demands more than a
scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in his decision, but he cannot ignore a line of evidence that undermines the
conclusions he made, and he must trace the path of his reasoning and connect the
evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
I.

Brief Biographical and Educational Background
Ms. Bailey was born in September 1990, and was 20 years old when she filed

her application for SSI disability benefits. Though found to have a mild mental
handicap in her early school years, to have trouble with reading, and to require
accommodations for certain classes and test-taking, Ms. Bailey’s junior high
teachers stated she was cooperative, likable, and had a great attitude toward
learning. (R. 343, 490). Her teachers believed she was on track to pursue more
education after high school or to enter the work force. (R. 343). Ms. Bailey,
however, was impregnated during eighth grade, and she had a baby before her
freshman year of high school. (R. 335, 337). Ms. Bailey was chronically absent from

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high school and did not graduate. She failed many classes in 10th grade and
apparently never finished the 11th grade.
II.

The ALJ’s Sequential Findings
At step one of the sequential analysis, the ALJ noted Ms. Bailey had worked

after her April 2011 application date—at a buffet restaurant—but her earnings did
not meet the threshold for substantial gainful activity. (R. 12). At step two, the
ALJ found Ms. Bailey has the following severe impairments: bilateral knee pain,
obesity, borderline intellectual functioning, and dysthymia. He found no listings
were met or medically equaled, and then determined her residual functional
capacity. The ALJ decided Ms. Bailey is capable of the full range of mediumexertion work, but cognitively is limited to simple work at GED Reasoning Level 02
that is routine, repetitive, and “goal-oriented” as opposed to at a production pace.
(R. 15). Ms. Bailey had no past relevant work to analyze at step four. At step five,
and based on the testimony of a vocational expert, the ALJ determined that Ms.
Bailey’s RFC and vocational profile allow her to perform a large range of unskilled
and medium or light jobs that exist in significant numbers within Indiana. The jobs
are church janitor, kitchen helper, hospital cafeteria worker, parking lot cashier,
housekeeper, and dog bather. Accordingly, the ALJ found at step five that Ms.
Bailey is not disabled.

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Analysis
Ms. Bailey contends the ALJ erred by failing to expressly mention listing
12.05C and analyze her impairments against that listing. She does not challenge
the ALJ’s evaluation of her depression or her physical impairments. Ms. Bailey
further contends that even if the ALJ did not err at step three, the RFC is flawed
because it reflects an improper credibility analysis and does not account for her
social dysfunction. The court will address each argument in turn below.
I.

The ALJ’s failure to mention listing 12.05C is not grounds for
remand.
The court rejects Ms. Bailey’s contentions that the ALJ ignored the

possibility her impairments met or medically equaled listing 12.05C and that
remand is required because he did not mention 12.05C. That listing, which had
used the term “mental retardation” but now instead uses the term “intellectual
disability,”1 describes a severity of intellectual disability that is presumptively
disabling, so that if a claimant meets all of the requirements of the listing, she is
entitled to benefits without regard to any analysis under steps four or five,
including the formulation of a residual functional capacity. See Sims v. Barnhart,

Effective September 3, 2013 (but before the ALJ issued his decision),
the SSA replaced the term “mental retardation” in listing 12.05 with the term
“intellectual disability.” The substantive requirements of listing 12.05 were not
changed, but the SSA found a change in terminology was appropriate in light of the
use of the term “intellectual disability” in other federal laws and in light of the
American Psychiatric Association’s similar replacement in the DSM-5 of the term
“mental retardation” with “intellectual disability” or “intellectual development
disorder.” See https://www.federalregister.gov/articles/2013/08/01/201318552/change-in-terminology-mental-retardation-to-intellectual-disability.
1

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309 F.3d 424, 428 (7th Cir. 2002) (when claimant meets all of the criteria for a listed
impairment, then the claimant is presumptively disabled and qualifies for benefits);
King v. Barnhart, 2007 WL 968746 at *4 (S.D. Ind. Feb. 26, 2007) (12.05C’s
standards are designed to address the situation where a combination of low mental
ability and another significant mental or physical impairment impede ability to
work; “Its standards are designed to identify cases in which more detailed,
individualized consideration of a claimant’s situation is not justified.”)
Listing 12.05C states (using the terminology in effect at the time of the ALJ’s
decision):
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.
As shown, Listing 12.05C has three separate requirements: (1) significantly
subaverage general intellectual functioning with deficits in adaptive functioning
that initially manifested before age 22; (2) a valid IQ score of 60 through 70; and (3)
a physical or other mental impairment imposing an additional and significant workrelated limitation of function.

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Although the ALJ did not cite listing 12.05C by name, it is clear from the
context of his decision that he in fact considered whether 12.05 was implicated by
the evidence. He made several findings pertinent to the listing. First, he recited all
of the evidence of Ms. Bailey’s IQ testing. Second, he noted that the doctor who
administered the one IQ test for which scores were consistent with mild mental
retardation stated he did not have enough information about Ms. Bailey’s adaptive
functioning to confirm a diagnosis of mild mental retardation. Third, the ALJ
accorded “significant weight” to the assessments and conclusions of the reviewing
state agency physicians regarding the nature and severity of Ms. Bailey’s mental
impairments. Those psychologists concluded that listing 12.05C was not implicated
by the evidence of Ms. Bailey’s intellectual functioning, but that the appropriate
listing was 12.02, titled organic mental disorders. (See R. 428-440 and R. 445). As
noted above, Ms. Bailey does not challenge the ALJ’s conclusion that listing 12.02
was not met.
The ALJ addressed the three separate IQ tests Ms. Bailey had undergone.
He noted Ms. Bailey had IQ testing at age four in preschool, again at age 18 in
connection with a vocational rehabilitation assessment, and again at age 20 in
connection with her disability application. She was administered the Wechsler
Preschool and Primary Scales of Intelligence in 1994, and her full scale IQ was
measured at 81, which is much higher than the 60-70 scale under listing 12.05C. In
2008, she was administered the Wechsler Adult Intelligence Scale, Third Edition
(WAIS-III), and her scores were a verbal IQ of 73, performance IQ of 78, and a full

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scale IQ of 74. (R. 17). These scores are also higher than listing 12.05C requires.
The ALJ described these test results as indicating “borderline” intellectual
functioning. (Id.)
The ALJ addressed Ms. Bailey’s third IQ testing regimen in June 2011, which
was administered by Dr. McIntosh. She was administered the Fourth Edition of the
Wechsler test (WAIS-IV), and her scores were: 66 in Verbal Comprehension; 67 in
Perceptual Reasoning; 66 in Working Memory; 76 in Processing Speed; and a full
scale IQ of 63. All these scores are in the “extremely low range,” except for the
Processing Speed score, which is in the borderline range. (R. 18).
The full-scale IQ score from the 2011 test falls within the IQ requirement
under listing 12.05C, but in analyzing the scores from that testing, the ALJ noted
Dr. McIntosh had declined to confirm a diagnosis of “mild mental retardation”
because he did not have enough information about Ms. Bailey’s adaptive
functioning. (R. 18). Ms. Bailey complains that the ALJ unreasonably rejected the
IQ scores solely based on Dr. McIntosh’s failure to confirm a “diagnosis” of mild
mental retardation when a diagnosis is not required to meet the listing. Although it
is true that a diagnosis itself is not required to meet the listing, low IQ scores alone
are also insufficient. Dr. McIntosh recognized (as did the ALJ with his discussion of
the reason Dr. McIntosh decided that mental retardation could not be confirmed
solely by the 2011 testing) that deficits in adaptive functioning manifested before
age 22 are also required. In addition, the ALJ noted in his discussion of Dr.
McIntosh’s report and Ms. Bailey’s intellectual functioning that she had tested at

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much higher levels of functioning in her earlier tests and that her overall adaptive
functioning did not support a finding she suffered from mental retardation. (R. 19).
Third, in the opinions of state agency psychologists who reviewed all of the
record evidence, including the scores from Dr. McIntosh’s testing in 2011, listing
12.05C was not implicated by the evidence. Those opinions are substantial evidence
to support the ALJ’s focus on listing 12.02 (organic mental disorders) and not 12.05
in his written decision. See Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004)
(completed disability forms in the record about whether a listing was met
constitutes substantial evidence supporting an ALJ’s step three finding).
The state agency reviewing psychologist, Dr. Maura Clark, specifically
addressed Dr. McIntosh’s report and IQ testing, and found that the overall record,
including Ms. Bailey’s earlier IQ test results, her school history, and her daily living
activities, were not consistent with mental retardation. (R. 444). This assessment
was affirmed by another state agency reviewing psychologist, Dr. Ken Lovko. (R.
484). These psychologists found that the relevant listing was 12.02 (for organic
mental disorders) and not 12.05. (R. 428-440). The ALJ’s explicit reliance on Dr.
Clark’s opinion, along with his discussion of the evidence of Ms. Bailey’s IQ scores
over time, and his determination that Dr. McIntosh’s scores were insufficient for a
finding of mental retardation, convince the court remand is not required based
simply on the ALJ’s omission to mention listing 12.05C by name.

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II.

The ALJ’s credibility determination is supported by substantial
evidence.
Because the ALJ evaluates credibility by questioning and evaluating a live

witness, the ALJ’s credibility finding is reviewed deferentially and will not be set
aside unless it is “patently wrong.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.
2008). The ALJ is not required to find a claimant is disabled because she does not
think she can work. Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996). Moreover,
the ALJ’s use of the backward boilerplate suggesting he first formulated an RFC
and then rejected as not credible any statements inconsistent with the RFC is
harmless error so long as the ALJ provides rational support for his credibility
determination. Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012).
Ms. Bailey contends the ALJ “did not articulate any legitimate reason for his
credibility decision” and must be reversed on that basis. The court rejects her
argument. The ALJ gave several reasons for doubting Ms. Bailey’s credibility.
Chief among them was Ms. Bailey’s engaging in work activities subsequent to the
filing of her disability application which required a level of functioning greater than
she asserted she possesses. (R. 12). He also noted that at a time in October 2011
when Ms. Bailey had reported she could not meet the requirements for a jobtraining program, she had chosen to spend time going to parties every weekend and
drinking. (R. 19). He noted that though she complained of severe pain from back
and knee impairments, she had not received treatment for that pain or been
prescribed narcotic medication. Finally, he cited Ms. Bailey having failed to attend

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counseling sessions for periods of time even though she had reported good results
from those sessions. (R. 19).
Because the ALJ’s credibility determination is supported by relevant
evidence, the court concludes it is not patently erroneous and is not a basis for
remand.
III.

The ALJ’s omission of restrictions in the RFC based on poor social
functioning does not require remand.
Ms. Bailey’s final assertion of error concerns the ALJ’s RFC determination.

She argues the ALJ erroneously failed to include a restriction relating to her poor
social functioning even though she had had in the past recurring conflicts with
coworkers. The ALJ did not find, however, that the totality of the evidence
supported including a restriction against interactions with co-workers or others. In
finding that Ms. Bailey’s mental impairments caused only mild limitations in her
social functioning, the ALJ cited to, among other evidence, Ms. Bailey’s own
statement in a function report that she does not have any “problems getting along
with family, friends, neighbors, or others.” (R. 14, 232). Because substantial
evidence supports the ALJ’s decision to exclude a social functioning restriction in
his RFC, the court rejects Ms. Bailey’s argument.
Conclusion
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision
that Ms. Bailey was not disabled.
So ORDERED.

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Dated: September 29, 2015
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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