Kiser v. SSA
MEMORANDUM OPINION & ORDER, 1) denying 10 MOTION for Summary Judgment by Kristal Marie Kiser 2) granting 12 MOTION for Summary Judgment by SSA. Signed by Judge Joseph M. Hood on 11/18/13.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
KRISTAL MARIE KISER,
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
Civil Case No.
Summary Judgment [D.E. 10, 12] on Plaintiff’s appeal of the
Commissioner’s denial of her application for child’s insurance
I. Overview of the Process and the Instant Matter
disability, conducts a five-step analysis:
These are not traditional Rule 56 motions for summary
judgment. Rather, it is a procedural device by which the parties
bring the administrative record before the Court.
An individual who is working and engaging in
regardless of the claimant's medical condition.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant's residual functional capacity
and the physical and mental demands of the claimant's
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work.
If he cannot, the claimant is
Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled." Id.
the analysis reaches the fifth step without a finding that the
In the instant matter, the ALJ determined that Plaintiff
relevant time period under step one. [Tr. 24]. Under step two,
impairments of depression, borderline intellectual functioning,
regulations. [Tr. 24-25]; 20 CFR §§ 404.1520(c), 416.920(c). The
headaches was a “non-severe” impairment. [Tr. 24-25].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and determined that none of them met
the criteria listed in 20 CFR pt. 404, subpt. P, app. 1. [Tr.
concluded at step four that Plaintiff had a residual functional
capacity (RFC) to perform a full range of work at all exertional
levels. [Tr. 27-32]. However, the ALJ found Plaintiff had the
“following nonexertional limitations: she can perform simple to
instructions, in routine work settings involving no more than
children.” [Tr. 27].
The ALJ found that Plaintiff had no past relevant work.
[Tr. 32]. The ALJ further found that there were jobs in the
national economy that Plaintiff could perform. [Tr. 32]. Thus,
the ALJ determined that Plaintiff is not disabled under the
Social Security Act. [Tr. 33].
In this appeal, Plaintiff argues that the ALJ erred by
summarily rejecting whether Plaintiff meets or equals listing
12.05(c), without analysis of the record, and that the ALJ erred
in concluding that Plaintiff could perform work in the national
inaccurate or incomplete RFC.
II. Standard of Review
benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted).
Instead, judicial review of the
ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
hearing [Tr. 44], and has a high school education. [Tr. 45].
286]. Plaintiff filed for child’s insurance benefits based on
disability and for Supplemental Security Income (SSI), alleging
disability beginning on January 12, 2010. [Tr. 22]. The claims
were denied both initially and upon reconsideration. [Tr. 22].
Plaintiff requested a hearing with the ALJ, which took place on
decision denying child’s insurance benefits and SSI on September
6, 2011. [Tr. 33].
cause her to have to lie down for two to three hours at a time
with the lights off [Tr. 49], and limits her ability to work.
[Tr. 48]. Additionally, she claims the headaches cause her to
lose her temper. [Tr. 48]. Plaintiff is also being treated for
depression. [Tr. 49]. Plaintiff treats her headaches with overthe-counter medications, such as Tylenol or Motrin. [Tr. 48].
Plaintiff is prescribed Paroxetine for depression and Travobone
to help her sleep. [Tr. 285, 49].
Plaintiff was placed in special education classes in 1998
[Tr. 562], but graduated high school with a regular diploma.
[Tr. 305, 308]. Plaintiff was administered the Wechsler IQ Test
for Children on three occasions during her schooling. In 2004,
Plaintiff received a Verbal IQ score of 69, a Performance IQ
score of 86, and a Full Scale IQ score of 75. [Tr. 563]. In
2001, Plaintiff received a Verbal IQ score of 64, a Performance
IQ score of 83, and a Full Scale IQ score of 65. [Tr. 564]. In
1998, Plaintiff received a Verbal IQ score of 66, Performance IQ
skills [Tr. 565], a poor ability to reason when solving math
problems [Tr. 565], and a difficulty with the written language.
[Tr. 565]. During high school, Plaintiff performed work at Busy
Bees, a daycare center [Tr. 47], and Goodwill. [Tr. 46].
After high school, Plaintiff attended the Carl D. Perkins
Vocational Training Center. [Tr. 45]. Plaintiff took classes in
materials management and job seeking skills. [Tr. 46]. Plaintiff
graduated from the program and asserts that her grades were very
good. [Tr. 45-46]. While at Carl D. Perkins, Plaintiff worked in
the gift shop. [Tr. 47].
Plaintiff visited Family Medicine Morehead with complaints
of depression [Tr. 384, 387] and migraine headaches [Tr. 405],
as well as various other health problems Plaintiff does not
depression, Plaintiff was referred to Pathways, Inc. [Tr. 443]
where she was diagnosed with mood disorder. [Tr. 446].
In February 2011, Dr. Corazon Chua performed a psychiatric
posttraumatic stress disorder. [Tr. 552]. Dr. Chua prescribed
Paxil and Trazodone. [Tr. 554].
Plaintiff was neat and clean, and her grooming was normal. [Tr.
contact, and she presented with an odd affect and adequate mood.
[Tr. 452]. Dr. Catt administered the Wechsler Adult Intelligence
Scale-IV IQ test and Plaintiff had a score of 76 in Verbal
Memory, 71 in Processing Speed, and a Full Scale IQ of 80. [Tr.
453]. Dr. Catt diagnosed Plaintiff with borderline intellectual
functioning. [Tr. 454]. Furthermore, Dr. Catt found that her
toward performance of simple repetitive tasks was not affected,
employment was not affected, her ability to sustain attention
and concentration towards simple tasks was not affected, and her
pressures was not affected. [Tr. 454-455].
Psychologist Ann Demaree performed a residual functional
capacity assessment of Plaintiff and found that she was able to
understand and complete simple to more complex tasks and could
adapt to a normal work setting sine her depression was improved
with medication. [Tr. 459].
before the ALJ. [Tr. 62-66]. Ms. Baldwin testified that a person
with an RFC equivalent to the ALJ’s RFC finding for Plaintiff
economy. [Tr. 64-65]. When the hypothetical person was augmented
to include the additional limitation that the person would be
off task at least 20 percent of the time, Ms. Baldwin testified
that there were no jobs in the regional or national economy that
the hypothetical person could perform. [Tr. 65].
Plaintiff is still able to keep up with daily household
activities [Tr. 55, 266], is able to visit with friends [Tr.
56], cook meals [Tr. 55, 56], care for her family [Tr. 235],
shop for groceries with her mother [Tr. 272], and she likes to
read, write, and draw. [Tr. 56, 67-68].
A. The ALJ did not err by summarily rejecting that
Plaintiff meets or equals listing 12.05(c).
Plaintiff contends that the ALJ did not analyze the entire
12.05(c). Plaintiff contends that she had three separate valid
IQ tests with “verbal and/or full scale scores between 60 and 70
as required by Listing 12.05(c),” which the ALJ simply ignored.
defined in Paragraph C of Listing 12.05 a person must have “[a]
valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing an additional and
repeatedly clarified that a finding of presumptive disability
description in the introductory paragraph.” Alcorn v. Astrue,
No. 5:07-cv-212-DCR, 2008 WL 1790192, at *4 (E.D. Ky. Apr. 18,
2008) (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir.
2001)). Therefore, Plaintiff must show that she meets paragraph
C, as well as showing that she has a “significantly subaverage
period.” 20 CFR pt. 404, subpt. P, app. 1 § 12.05.
administered in the years 1998, 2001, and 2004. [Tr. 563-64].
Thus, Plaintiff would have been 7, 10, and 13 when these tests
Social Security disability determinations provide that IQ tests
given at this young age are only valid for a limited time.
“Generally, the results of IQ tests tend to stabilize by the age
of 16. . . . IQ test results obtained between ages 7 and 16
should be considered current for 4 years when the tested IQ is
less than 40, and for 2 years when the IQ is 40 or above.” 20
CFR pt. 404, subpt. P, app. 1 § 112.00(D)(10). Plaintiff did not
have a Verbal IQ, Performance IQ, or Full Scale IQ score below
40 in any of the three tests administered. [Tr. 563-64]. Thus,
Plaintiff’s last IQ test score between 60 and 70 would have been
valid until 2006. The Plaintiff did not appear before the ALJ
until August 25, 2011. [Tr. 22]. Therefore, these IQ tests were
not valid tests on which the ALJ could rely.
The ALJ did have a more recent test to rely upon, which was
consultative examination. [Tr. 450]. Plaintiff’s lowest score in
any category was 71, with a full scale IQ of 80. [Tr. 453]. As
this was the only IQ test administered that was still valid at
the time of the ALJ’s decision, the ALJ’s determination that
Plaintiff did not meet Paragraph C of Listing 12.05 is supported
by substantial evidence. Plaintiff did not have a valid IQ test
score within the 60 to 70 range, and, thus, could not meet the
paragraph C criteria.
B. The ALJ did not err as a matter of law in
concluding that Plaintiff could perform work in the
When asking a hypothetical question, the ALJ “is required
to incorporate only those limitations accepted as credible by
the finder of fact.” Casey v. Sec. of Health & Human Servs., 987
substantial evidence. See Cooper v. Comm’r of Soc. Sec., 217 F.
App’x 450, 453 (6th Cir. 2007) (“There is substantial evidence
in the record that the two hypothetical questions posed by the
ALJ accurately portrayed [plaintiff’s] credible limitations.”).
Plaintiff contends that the ALJ erred by failing to include that
Plaintiff needed a one-on-one job coach, that she works at an
abnormally slow pace unless closely supervised, she has reading
and math limitations, and that she has a limited ability to
handle stress from production. [D.E. 10-1 at 10].
While Plaintiff points to evidence in the record tending to
substantial evidence in the record to support the ALJ’s finding
that these are not credible limitations. The ALJ specifically
cited to Dr. Christopher Catt’s opinion that Plaintiff’s
capacity to understand, remember, and carry out
instructions toward performance of simple repetitive
tasks is not affected; her ability to tolerate stress
of day-to-day employment is not affected; her ability
affected; and her capacity to respond appropriately to
supervision, co-workers, and work pressures is not
[Tr. 31]. Furthermore, the ALJ, finding that they were balanced,
whole, relied upon the opinions of the experts who prepared the
State Agency reports. [Tr. 33]. In these reports, Plaintiff was
memory [Tr. 82, 457] and Plaintiff’s only moderate limitation in
activities within a schedule, maintain regular attendance and be
punctual. [Tr. 83, 457]. Thus, evidence exists that a reasonable
mind might accept as establishing that the ALJ included all
credible limitations in the hypothetical questions posed to the
Accordingly, based on the foregoing, IT IS ORDERED:
that Plaintiff’s Motion for Summary Judgment [D.E. 10]
be, and the same hereby is, DENIED;
that Defendant’s Motion for Summary Judgment [D.E. 12]
be, and the same hereby is, GRANTED.
This the 18th day of November, 2013.
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