Hesler v. SSA

Filing 9

MEMORANDUM OPINION & ORDER: 1) Plaintiff Hesler's Motion for Summary Judgment 7 is DENIED; 2) Commissioner of Social Security's Motion for Summary Judgment 8 is AFFIRMED; 3) A Judgment will issue contemporaneously. Signed by Judge Joseph M. Hood on 4/24/2017.(TJZ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
ESTEL HESLER,

)
)
Plaintiff,
)
)
V.
)
)
NANCY A. BERRYHILL,1 Acting
)
Commissioner of Social Security, )
)
Defendant.
)

Civil No. 2:16-cv-89-JMH

MEMORANDUM OPINION AND ORDER

****

Plaintiff Estel Hesler brought this action pursuant to 42

U.S.C. § 405(g) to obtain judicial review of an administrative
decision of the Commissioner of Social Security. The Court, having
reviewed the record, will AFFIRM the Commissioner’s decision, as
it is supported by substantial evidence.
I.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.

Cutlip v. Sec’y of

Health

(6th

&

Human

Servs.,

25

F.3d

284,

286

Cir.

1994).

“Substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant

1

 The caption of this matter is amended to reflect that Nancy A. Berryhill became
the Acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin in that role.

1 

evidence as a reasonable mind might accept as adequate to support
a conclusion.”
resolve

Id.

conflicts

determinations.

Id.

Courts are not to conduct a de novo review,
in

the

evidence,

or

make

credibility

Rather, we are to affirm the Commissioner’s

decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.

See Her v. Comm’r

of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step
analysis.

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).

Step 1 considers whether the claimant is still

performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe”; Step 3, whether the
impairments meet or equal a listing in the Listing of Impairments;
Step 4, whether the claimant can still perform his past relevant
work; and Step 5, whether significant numbers of other jobs exist
in the national economy which the claimant can perform.

As to the

last step, the burden of proof shifts from the claimant to the
Commissioner.

Id.; see also Preslar v. Sec’y of Health & Human

Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
On June 17, 2013, Plaintiff protectively filed a Title II
application for disability insurance benefits (“DIB”).
25].

He filed a Title XVI application for supplemental security
2 

[TR 124-

income

(“SSI”)

on

July

13,

2013.

[TR

398-417A].

In

both

applications, Plaintiff alleged disability as of October 8, 2008.
[TR 124-25, 398-417A].

Plaintiff’s claims were denied initially

and on reconsideration.

[TR 43-76, 418-19].

On March 9, 2015, Administrative Law Judge Greg Holsclaw
conducted an administrative hearing at Plaintiff’s request.
422-94].

[TR

ALJ Holsclaw ruled that Plaintiff was not entitled to

benefits on July 2, 2015.

[TR 15-27].

In his decision, ALJ

Holsclaw noted that Plaintiff had previously filed an application
for benefits, in which he also identified October 8, 2010 as his
onset date.2

[Id.].

ALJ Karen Jackson denied that application

via written decision on January 13, 2012.

[TR 34-41].

Because

Plaintiff had not come forward with any evidence to justify
reopening his previous application, ALJ Holsclaw held that res
judicata applied up to January 13, 2012.

[Id.].

ALJ Holsclaw

then proceeded with his analysis for the remainder of the time
period at issue.

[Id.].

At Step 1, ALJ Holsclaw found that Plaintiff had not engaged
in substantial gainful activity since the alleged onset date.
20].

[TR

At Step 2, he concluded that Plaintiff had the following

2

 Plaintiff’s prior claim went through many of the same steps as the instant
matter.
It was denied initially and on reconsideration.
[TR 31-41].
ALJ
Jackson held an administrative hearing at Plaintiff’s request, then issued her
written decision. [Id.].

3 

severe

impairments:

reading

disorder,

disorder

of

written

expression, anxiety disorder (not otherwise specified), borderline
intellectual

functioning/mild

mental

retardation/intellectual

disability, coronary artery disease (status post stenting of the
right

coronary

chronic

artery

obstructive

and

left

pulmonary

anterior

disease

descending

(“COPD”),

and

artery),
jaw

pain

(status post multiple surgeries secondary to mandibular fracture).
[TR 21].
At Step 3, ALJ Holsclaw determined that Plaintiff did not
have an impairment or combination of impairments listed in, or
medically equal to, an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

[TR 21-22].

In reaching this conclusion,

ALJ Holsclaw found that Plaintiff’s history of mandibular fracture
did not meet the requirements of Listing 1.08 because it did not
require continuing surgical management for restoration of major
function.

[Id.].

He also decided that Plaintiff’s COPD did not

meet the requirements of Listing 4.04C because it did not result
in serious limitations in his ability to complete activities of
daily living.

[Id.].

Finally, ALJ Holsclaw determined that

Plaintiff’s mental impairments did not meet the requirements of
Listings 12.04, 12.05, or 12.06 because Plaintiff had only mild
restriction of activities of daily living and moderate restriction

4 

of social functioning, and had not experienced extended episodes
of decompensation.

[Id.].

At Step 4, ALJ Holsclaw found that Plaintiff had the residual
functional capacity (“RFC”) to perform a range of light work as
defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) as follows:
Lift and carry 15 pounds occasionally and ten pounds
frequently; stand and walk six hours of an eight hour
day, and for no more than one hour at a time; sit for
six hours a day, for no more than one hour at a time;
push and pull up to the exertional limitations;
frequently balance; occasionally stoop, kneel, crouch,
or crawl; occasionally climb ramps and stairs, but never
ladders, ropes, or scaffolds; no work in areas of
concentrated heat or cold; no work around dangerous
moving machinery or unprotected heights; and no work in
areas with concentrated dust, fumes, gases, or other
pulmonary irritants. He is limited to simple, routine
work; can maintain attention and concentration for two
hour intervals necessary to complete tasks; can
occasionally interact with co-workers, supervisors, and
the general public; can tolerate occasional, gradual
changes in the workplace setting or environment; should
have no fast-paced production quotas or goals; and no
requirement for literacy, with oral instructions and
initial demonstrations in an object focused work
environment.

[TR 22-26]. He then concluded that Plaintiff was unable to perform
any

past

relevant

work.

[TR

26].

However,

he

noted

that

transferability of job skills was not material to the disability
determination 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.”

5 

[Id.].

Nevertheless, ALJ Holsclaw proceeded to the final step of the
sequential evaluation.

[TR 26-27].

At Step 5, he determined that

there were a significant number of jobs in the national economy
that Plaintiff could perform.

[Id.].

conclusion

a

on

testimony

from

ALJ Holsclaw based this

vocational

expert

(“VE”),

in

response to a hypothetical question assuming an individual of
Plaintiff’s age, education, work experience, and RFC.

[Id.].

VE

work

testified

grader/sorter
(5,500

that

such

(1,300

an

individual

Kentucky/87,000

Kentucky/296,000

could

find

nationally)

nationally).

[Id.].

or

The

as

a

inspector

Based

on

the

testimony of the VE, ALJ Holsclaw found that Plaintiff was capable
of

making

a

successful

adjustment

to

other

work,

and

thus,

concluded that he was not under a “disability,” as defined by the
Social Security Act.

[TR 29].

This became the final decision of the Commissioner when the
Appeals Council denied review on March 29, 2016.

[TR 9-11].

Plaintiff filed the instant action on May 25, 2016.

[DE 1].

Consistent with the Court’s Standing Scheduling Order, the parties
have submitted cross motions for summary judgment, which are now
ripe for review.

[DE 7, 8].

Plaintiff advances two arguments on

appeal, both of which concern the ALJ’s analysis at Step 3.3 First,

3

 In his Motion for Summary Judgment, Plaintiff summarizes his arguments as such:
“The ALJ failed to properly consider Listing 12.05C in his analysis at the third
step of the sequential evaluation.” [DE 7 at 5]. To clarify, Plaintiff does
not actually contend that ALJ Holsclaw completely failed to address Listing

6 

Plaintiff attacks ALJ Holsclaw’s finding that he did not have
deficits in adaptive functioning that manifested prior to age 22,
insisting that this conclusion was not supported by substantial
evidence.

Plaintiff then complains that ALJ Holsclaw’s decision

to reject his IQ test results was not supported by substantial
evidence.

The Court will address each of these arguments in turn.
III.

“The Listing of Impairments, located at Appendix 1 to Subpart
P of the regulations, describes impairments the SSA considers to
be ‘severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, and work
experience.’”

Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411,

414 (6th Cir. 2011) (quoting 20 C.F.R. § 404.1525(a)).

“In other

words, a claimant who meets the requirements of a Listed Impairment
will be deemed conclusively disabled, and entitled to benefits.”
Id.

“[F]or a claimant to show that his impairment matches a

Listing, it must meet all of the specified criteria. An impairment
that manifests only some of those criteria, no matter how severely,
does not qualify.”

Sullivan v. Zebley, 493 U.S. 531, 530 (199)

(emphasis in original).

12.05C. Rather, he disagrees with the manner in which ALJ Holsclaw conducted
his analysis of Listing 12.05C.

7 

“To meet the requirements of Listing 12.05C, a claimant must
show: (1) significant subaverage general intellectual functioning
with deficits in adaptive functioning that initially manifested
during the developmental period (i.e. before the age of twentytwo); (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 on function.”4

Turner v. Comm’r of Soc.

Sec., 381 F. App’x 488, 490 (6th Cir. 2010); see also Evans v.
Sec’y of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987)
(explaining that the claimant bears the burden of demonstrating
that he or she meets or equals a listed impairment).
In evaluating the first element, some courts have held that,
absent any evidence of head trauma, an IQ test creates a rebuttable
presumption of a fairly constant IQ throughout the patient’s life.
See Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001); Muncy
v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001).

However, the United

States Court of Appeals for the Sixth Circuit has rejected such an
approach, stating instead that “[a] claimant must produce evidence
beyond his present IQ scores to show that he exhibited deficits

4
 Listing 12.05C was deleted from the Listing of Impairments
See 81 Fed. Reg. 66138, 2016 WL 5341732 (Sept. 26, 2016).
indicated that it does not intend for the revised
retroactively to final agency decisions rendered before the
the Court will analyze Plaintiff’s arguments as if Listing
Id.

8 

on January 17, 2017.
Because the SSA has
Listings to apply
changes took effect,
12.05C still exists.

during his developmental period.”

Turner, 381 F. App’x at 491-

92; see also Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001).
As for the second element, “the mere fact of a qualifying IQ
score does not require that the ALJ find mental retardation under
[the Listing of Impairments] when substantial evidence supports
the contrary conclusion.”

Courter v. Comm’r of Soc. Sec., 479 F.

App’x 713, 721 (6th Cir. 2012); see also Brown v. Sec’y of Health
& Human Servs., 948 F.2d 268, 269 (6th Cir. 1991) (explaining that
a valid IQ score “reflect[s] the claimant’s true abilities as
demonstrated

by

his

or

her

performance

at

work,

household

management and social functioning”).
In his analysis, ALJ Hosclaw stated as follows:
Finally, the Paragraph “C” criteria of Listing 12.05 are
not met because the claimant does not have a valid
verbal, performance, or full scale IQ of 60 through 70
with deficits in adaptive functioning manifesting prior
to age 22, and a physical or other mental health
impairment imposing an additional and significant
limitation of function. As discussed in the previous
decision, past intelligence testing had found full scale
IQs of 57 and 69. However, the undersigned finds that
these scores are not valid, as they are inconsistent
with the claimant’s past work, which involved electrical
and plumbing repairs, tasks incompatible with such
reduced cognitive functioning.
[TR 22].
Plaintiff “concede[s] that the record is [de]void of any test
results confirming that [his] mental deficits manifested before

9 

age 22.”

[DE 7 at 7].

However, he insists that ALJ Holsclaw’s

finding that any deficits in adaptive functioning did not manifest
prior

to

age

22

is

not

supported

by

substantial

evidence.

Plaintiff argues that his qualifying IQ scores at age 45 created
a rebuttable presumption of a fairly constant IQ throughout his
life, which ALJ Holsclaw failed to consider in his analysis of
Listing 12.05C.
Even if the Court assumes that Plaintiff’s recent IQ test
results are valid, a subject that will be discussed infra, the
Sixth

Circuit

presumption.

has

refused

to

recognize

such

a

rebuttable

Under Sixth Circuit case law, Plaintiff must present

evidence beyond his current IQ scores to establish that deficits
in adaptive functioning manifested during his developmental years,
and by Plaintiff’s own admission, he did not do so.

Thus, ALJ

Holsclaw’s finding that Plaintiff failed to satisfy the onset
criteria of Listing 12.05C is supported by substantial evidence.
Next, Plaintiff argues that the ALJ’s decision to reject his
IQ tests was not supported by substantial evidence.5

He insists

that ALJ Holsclaw did not give sufficiently detailed reasoning to
support his decision, choosing instead to rely heavily on the prior

5

 As a practical matter, the Court is not obligated to consider this argument
because it has already upheld the ALJ’s analysis of the onset criteria, making
it impossible for Plaintiff to satisfy all of the requirements of Listing
12.05C. Thus, the ALJ could not have erred in finding that Plaintiff was not
conclusively disabled at Step 3. Sullivan, 493 U.S. at 530. However, the Court
will discuss Plaintiff’s second argument out of an abundance of caution. 

10 

administrative decision of ALJ Jackson, who found that Plaintiff’s
IQ scores were inconsistent with his “long history of full time
employment.”6

While it is true that ALJ Holsclaw reached the same

conclusion that ALJ Jackson articulated, this does not necessarily
mean that the conclusion is unsupported by substantial evidence.
Moreover,
rejected

the
the

record
IQ

test

reflects
results

that
on

the

ALJ

Holsclaw

grounds

that

explicitly
they

were

inconsistent with Plaintiff’s self-described work history as a
janitor.7
Specifically, ALJ Holsclaw noted that Plaintiff had a history
of performing electrical and plumbing repairs while working as a
janitor.

He then reasoned that such tasks were inconsistent with

the degree of reduced cognitive functioning reflected in the IQ
tests.
a

These considerations qualify as “such relevant evidence as

reasonable

conclusion.”

mind

might

accept

as

adequate

to

support

a

See Cutlip, 25 F.3d at 286; Courter, 479 F. App’x at

6

 Plaintiff insists that ALJ Holsclaw implicitly reopened the alleged period of
disability beginning on October 8, 2010 and ending on January 13, 2012. However,
as discussed supra, ALJ Holsclaw clarified that res judicata applied to this
period. While ALJ Holsclaw is bound by findings made by ALJ Jackson at a step
in the disability determination process, he is not bound by her subsidiary
findings, such as her decision to reject the IQ test results. See Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997); Acquiescence Ruling 98-4(6)
n. 5, 1998 WL 283902 (providing guidance on the application of Drummond). Thus,
ALJ Holsclaw’s own treatment of those test results did not amount to a de facto
reopening of Plaintiff’s prior application. Id.
7
 Plaintiff briefly contends that ALJ Holsclaw’s treatment of the IQ tests is
more appropriate for a Step 4 analysis than a Step 3 discussion. [DE 7 at 5].
However, the Sixth Circuit has affirmed a similar Step 3 analysis, indicating
that ALJ Holsclaw’s approach was not flawed. See Courter, 479 F. App’x at 72122.  

11 

721-22 (affirming the ALJ’s Step 3 analysis, in which he discounted
the claimant’s qualifying IQ score on the grounds that she also
had a non-qualifying IQ score and extensive work history).

Thus,

the Court finds that ALJ Holsclaw’s decision to reject Plaintiff’s
IQ scores is supported by substantial evidence.
IV.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Plaintiff Estel Hesler’s Motion for Summary Judgment [DE

7] be, and is, hereby DENIED;
(2)

The Commissioner of Social Security’s Motion for Summary

Judgment [DE 8] be, and is, hereby AFFIRMED; and
(3)

A

Judgment

will

issue

contemporaneously

Memorandum Opinion and Order.
This the 24th day of April, 2017.

12 

with

this