Schooler v. SSA

Filing 11

MEMORANDUM OPINION & ORDER: 1) Pla's 9 Motion for Summary Judgment is DENIED; and 2) Dft's 10 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 05/08/2014. (KLB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

)
)
)
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) Action No. 5:13-CV-126-JMH
)
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)
)
)

CHARLES L. SCHOOLER.

Plaintiff,
v.

CAROLYN W. COLVIN
COMMISSIONER OF SOCIAL
SECURITY
Defendant.

**

**

**

**

**

This matter is before the Court on cross motions for
summary judgment [DE 9 and 10]1 on Plaintiff’s appeal of the
Commissioner’s denial of his application for Supplemental
Security Income.
Court,

having

sufficiently

This matter is ripe for review.

reviewed

advised,

the

will

record
deny

and

being

Plaintiff’s

The

otherwise

motion

and

grant Defendant’s motion.

1

These are not traditional Rule 56 cross motions for
summary judgment. Rather, they are procedural devices used
by the Court to obtain the views of the parties regarding
the
sufficiency
of
the
evidence
contained
in
the
administrative record developed before the Commissioner.
1

I.

Factual and Procedural Background

Plaintiff Charles L. Schooler filed an application for
Supplemental

Security

Income

(SSI)

on

May

17,

2007,

alleging disability as of November 24, 2005 (Tr. 114-17,
139).

After the agency denied Schooler’s claims at the

initial

and

reconsideration

levels

(Tr.

73-79),

the

ALJ

held a hearing on April 1, 2009 (Tr. 23-46). On June 2,
2009, the ALJ issued a hearing decision denying Schooler’s
claim (Tr. 12-22). On May 25, 2010, the Appeals Council
(Council) denied Schooler's Request for Review (Tr. 1-4).
Schooler then appealed to this Court.

On January 19, 2011,

this Court remanded Schooler’s claim (Tr. 352-53), and on
February

17,

2011,

the

Council

remanded

the

claim,

in

relevant part, so that the ALJ could properly consider the
standard

articulated

retardation.

in

Listing

12.05C

for

mental

(Tr. 240, 357—60).

On March 22, 2012, the ALJ issued a remand hearing
decision denying Schooler’s claim (Tr. 237-52). On March
20, 2013, the Council denied Schooler's Request for Review
(Tr. 226-29), making the ALJ’s decision on remand the final
decision
416.1481.

of

the

Commissioner

Schooler

Commissioner’s

final

now

seeks

decision

405(g).

2

pursuant
judicial
pursuant

to

20

review
to

42

C.F.R.
of
U.S.C.

§
the
§

The facts underlying Plaintiff Charles L. Schooler’s
claim are largely undisputed.

Schooler, born in 1972, was

39 years old at the time of his most recent administrative
hearing.

(Tr. 114.)

November

24,

2005.

He alleges disability beginning on
(TR.

114).

Schooler

took

special

education classes before leaving school in the tenth grade.
(Tr. 30—31).

However, he obtained his GED.

has had no vocational training.

(Tr. 30).

(Tr. 30).

He

He had been

employed as a carpenter’s helper for two years beginning in
2004.2

(TR.

32—33).

His

duties

included

cleanup

and

assisting with tasks, such as holding pieces of drywall.
(Tr. 33).

He reported that he was terminated because “I

didn’t know enough for [Schooler’s employer] to keep me.”
(Tr. 33).

Schooler alleges that he has been unable to

return

work

to

as

a

result

of

the

combination

of

impairments causing him to be disabled, including mental
retardation, major depressive disorder, impaired eyesight,
and impaired hearing. (Tr. 141).
II. OVERVIEW OF THE ALJ HEARING
In determining whether a claimant is disabled or not,
the ALJ conducts a five-step analysis:
1.) Is the individual engaging in substantial
gainful activity? If the individual is engaging
in substantial gainful activity, the individual
2

Schooler was incarcerated from 1992 to 2004.

3

(TR 30).

is not disabled, regardless
medical condition.

of

the

claimant’s

2.) Does the individual have a severe impairment?
If not, the individual is not disabled.
If so,
proceed to step 3.
3.) Does the individual’s impairment(s) meet or
equal the severity of an impairment listed in
appendix 1, subpart P of part 404 of the Social
Security Regulations?
If so, the individual is
disabled. If not, proceed to step 4.
4.) Does the individual’s impairment(s) prevent
him or her from doing his or her past relevant
work, considering his or her residual functioning
capacity?
If not, the individual is not
disabled, if so, proceed to step 5.
5.) Does the individual’s impairment(s) prevent
him or her from performing other work that exists
in the national economy, considering his or her
residual functioning capacity together with the
“vocational factors” of age, education, and work
experience?
If so, the individual is disabled.
If not, the individual is not disabled.

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 530 (6th Cir.
2001).

“The burden of proof is on the claimant throughout

the first four steps of this process to prove that he is
disabled.
finding

If the analysis reaches the fifth step without a

that

the

claimant

is

not

disabled,

the

burden

transfers to the Secretary.” Preslar v. Sec’y of Health &
Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
III. ALJ’s findings
Following

remand

by

this

Court,

Schooler

testified

before ALJ Kayser, which was held on March 1, 2012. (Tr.

4

240-52).

ALJ Kayser issued a decision dated March 22,

2012, denying Schooler’s claim for benefits. (Tr. 237-52).
The ALJ applied the five-step sequential evaluation
process found at 20 C.F.R. § 416.920(a)(4) (2013).
found

Schooler

pursuant

to

has

20

the

C.F.R.

following
§

“severe”

416.920(c):

The ALJ

impairments

affective

mood

disorder, mild mental retardation,/borderline intellectual
functioning, hearing loss, and decreased vision (Tr. 242,
Finding No. 2). The ALJ found Schooler did not have an
impairment
medically

or

combination

equaled

one

of

of

impairments

the

listed

that

met

impairments

or

in

20

C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 243, Finding
No. 3).
The

ALJ

determined

Schooler’s

residual

functional

capacity (RFC) and found Schooler could perform work at all
exertional

levels

limitations

(Tr.

reduced

247,

by

Finding

several

No.

4);

nonexertional

See

20

C.F.R.

§

416.920(a)(4)(iv). The ALJ then found Schooler had no past
relevant work.

(Tr. 251, Finding No. 5).

At step five of

the sequential evaluation, 20 C.F.R. § 416.920(a)(4)(v),
the ALJ used Medical-Vocational rule 204.00, 20 C.F.R. pt.
404, subpt. P, app. 2, rule 204.00, as a framework for
decision-making, in conjunction with a Vocational Expert’s
(VE)

testimony

(Tr.

299—301),

5

to

find

Schooler

could

perform other work that existed in the national economy
(Tr. 251—52, Findings 6-9).

Thus, the ALJ found Schooler

is not disabled. (Tr. 252, Finding No. 10).
Schooler filed a Request for Review on April 20, 2012.
(Tr.

231).

The

Appeals

Council

denied

the

Schooler’s

Request for Review on March 20, 2013. (Tr. 226—28).

The

instant appeal followed.
III. STANDARD OF REVIEW
In

reviewing

benefits,

the

the

Court

ALJ’s

may

decision

not

try

the

to

deny

case

disability

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). Instead, judicial review of
the ALJ’s decision is limited to an inquiry into whether
the ALJ’s findings were supported by substantial evidence,
see 42 U.S.C. § 405(g), Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001), and whether the ALJ employed the proper
legal standards in reaching his conclusion.

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,
relevant

but

less

evidence

as

than
a

a

preponderance;

reasonable

adequate to support a conclusion.”

6

mind

it

might

is

such

accept

as

Cutlip, 25 F.3d at 286.

IV.

Analysis
Schooler’s only argument on appeal is that the ALJ

erred in Step 3 of his review by finding that Schooler was
not disabled under 12.05C of Appendix I to Subpart P of 20
C.F.R. § 404.

“Because satisfying the listings during the

third step yields an automatic determination of disability
based on medical findings . . . the evidentiary standards
for a presumptive disability under the listings are more
strenuous than for claims that proceed through the entire
five-step evaluation.”

Peterson v. Comm’r of Soc. Sec.,

No. 13-5841, 2014 WL 223655, at *6 (6th Cir. Jan. 21, 2014)
(citations

omitted).

Section

12.05

regarding

mental

retardation3 provides as follows:
[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
these
disorders is met when the requirements in both A
and B are satisfied, or when the requirements in
both A and C are satisfied.
. . .
3

“Intellectual disability” has replaced the term “mental
retardation.” in Listing 12.05. 20 C.F.R. § 404, subpart P,
appendix 1, 12.05.
Because the parties and the record
refer to “mental retardation,” this Court will continue to
use that term herein.
7

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;
20 C.F.R. § 404, subpart P, appendix 1, 12.05C.
The

ALJ

concluded,

and

the

parties

agree,

that

Schooler’s scores on standardized IQ tests met the first
part of Listing 12.05C.

[Tr. 246].

Testing in July 2007

by Jennifer L. Wilkes-Deaton, M.A., and Cristi M. Hundley,
Ph.D., revealed that Schooler had a full scale IQ score of
67, a verbal IQ score of 67, a performance IQ score of 73
and a diagnosis of mild mental retardation.
The

ALJ

also

found

that

the

Schooler

[Tr. 182].
had

“severe

impairments” in his second finding. [Tr. 242, Finding No.
2].

Therefore, Schooler also met the second requirement of

12.05C by showing a “physical or other mental impairment
imposing

an

additional

limitation of function.”

and

significant

work-related

20 C.F.R. pt. 404, subpt. P, app.

1, §12.05C.
However, the ALJ found that Schooler was not disabled
under the 12.05C factors because “the claimant’s level of
adaptive

functioning

functioning
“Adaptive

suggested
functioning

exceeds
by
is

his

the
IQ

level
scores.”

different

from

of

cognitive
[Tr.

246].

intellectual

functioning,” and Schooler must demonstrate that “he had

8

adaptive

functioning

deficits

during

period” to qualify under 12.05C.
at

*7.

“Adaptive

effectiveness

in

developmental

Peterson, 2014 WL 223655,

functioning
areas

his

such

includes
as

communication, and daily living skills.”

a

claimant’s

social

skills,

West v. Comm’r of

Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007).

“While

the claimant may use a qualifying IQ score before the age
of

22

to

demonstrate

that

his

subaverage

intellectual

functioning initially manifested during his developmental
period . . . a claimant is by no means required to produce
an IQ score obtained prior to age 22.”

West, 240 F. App’x

at 698 (citations omitted).
The ALJ’s conclusion that Schooler did not exhibit the
required
disabled

deficits
under

substantial

in
the

evidence

adaptive
12.05C
in

the

functioning
listing
record.

is
In

to

qualify

supported
finding

as
by

that

Schooler exhibited a higher level of adaptive functioning,
the ALJ noted that the Schooler was able to communicate
normally and relay information as directed, such as his
social security number, date of birth, address and other
information.

Additionally, Schooler reported reading the

Bible, which would suggest higher adaptive functioning.
The ALJ relied on testimony of Medical Expert (ME)
Doug McKeown, Ph.D., that Schooler functioned at a level

9

higher than mild mental retardation (Tr. 246, 249-50, 287298).

The

ALJ

relied

on

Dr.

McKeown’s

testimony

that

Schooler’s ability to complete his GED and pass his written
driver’s test, as well as his ability to read parts of the
Bible,

showed

that

comprehension
consistent

of

with

Schooler

a

had

fifth-grade

borderline

mild mental retardation.

the

functional

student,

intellectual

(Tr. 289-92).

which

reading
is

more

functioning

than

Although Schooler

testified that he only read the Bible and did not read
newspapers (Tr. 272), his mother reported that he did read
the paper (Tr. 148).

Dr. McKeown also testified that the

information

in

exams

contained

(CE)

adaptive

regarding
living

both

psychological

Schooler’s

skills

consultative

general

and

178-84,

(Tr.

knowledge
474-81)

are

inconsistent with mental retardation. (Tr. 291).
Schooler contests the ALJ’s determination that he did
not meet the 12.05C listing, arguing that his verbal and
full scale IQ is 67 and that he suffers from physical and
other

mental

impairments

imposing

additional

significant

work-related limitation of function.

The ALJ agreed that

Schooler

the

meets

these

criteria

under

12.05C

listing.

Schooler points to his testimony that he didn’t “earn” his
GED,

but

that

it

was

given

to

him

after

five

attempts

because he had “worked so hard to try to get it.”

10

(Tr.

284—85).

As

to

the

ALJ’s

finding

that

Schooler

demonstrated higher adaptive functioning, Schooler argues
that

his

placement

in

special

education

classes

demonstrates deficits in adaptive functioning during the
developmental period.
However, placement in special education classes alone
is not sufficient to demonstrate an adaptive functioning
deficit prior to age 22.
Admin.,

No.

12–3150,

(substantial
plaintiff

evidence

failed

requirement

of

to

Listing

See Justice v.

2013

WL

645957

supported
meet

the

12.05C

Comm’r Soc. Sec.
(6th

ALJ’s

Cir.

2013)

decision

that

“adaptive

where

the

functioning”
plaintiff

was

enrolled in special education classes, but where plaintiff
dropped out after the ninth or tenth grade and had basic
reading

and

circumstantial
history

of

mathematical
evidence

special

proficiency).

such

education

as

school

combined

“Neither

records

with

an

nor

adult

a
IQ

score are necessarily enough to demonstrate that a claimant
had adaptive functioning deficits before age twenty-two.
Peterson, 2014 WL 223655, at *7; see also Eddy v. Comm’r of
Soc. Sec., 506 F. App’x 508, 510 (6th Cir. 2012) (finding
that an eighth grade education with a history of special
education classes did not establish adaptive functioning
deficits prior to twenty-two years of age); Foster, 279

11

F.3d

at

352—55

completed

(finding

while

enrolled

that
in

a

ninth-grade

special

education

education

classes,

followed by numerous attempts at a GED and an adult full
scale

IQ

of

69

did

not

establish

adaptive

functioning

deficits prior to age twenty-two.)
Although
special

it

appears

education

that

classes

at

Schooler
times

was

[TR.

enrolled

225,

288,

in

151,

180], there is evidence that his education suffered from
other factors as well.

The ALJ noted it is likely that

Schooler’s level of absenteeism from school, not just his
level

of

intellectual

functioning,

played

a

significant

role in his ability to learn (Tr. 250, 225). Moreover,
Schooler told examining psychologist Dr. Marc Plavin that
he

quit

high

school

not

due

to

reduced

intellectual

functioning, but after the school suspended him twice for
repeatedly

fighting

(Tr.

477).

The

ALJ

also

relied

on

Schooler’s reports to Dr. Plavin that his inability to work
is due, in part, to his criminal record.

(Tr. 250, 474-

75).
Dr. McKeown concluded that Schooler functioned at a
higher

level

than

mental

retardation.

(Tr.

292).

Dr.

McKeown also noted there is no evidence showing Schooler
had an IQ below 70 prior to age 22. (Tr. 289). See 20
C.F.R.

pt.

404,

subpt.

P,

12

app.

1,

§

12.05

(Mental

retardation

“refers

intellectual

to

significantly

functioning

with

subaverage

deficits

general

in

adaptive

functioning initially manifested during the developmental
period: i.e., the evidence demonstrates or supports onset
of

the

impairment

assigned

great

Schooler

did

opinion

is

decision.

before

weight

not

to

meet

247).

22.”).

Dr.

Listing

substantial

(Tr.

age

McKeown’s
12.05C

evidence

Medical

The

and

ALJ

opinion
Dr.

supporting

experts’

properly
that

McKeown’s
the

opinions

ALJ’s
may

be

entitled to great weight if supported by the evidence. See
Loy v. Sec’y of Health and Human Servs., 901 F.2d 1306,
1308-10 (6th Cir. 1990) (ALJ properly relied on opinion of
medical expert).
This reviewing court “defers to the ALJ’s decision ‘even
if there is substantial evidence in the record that would have
supported
evidence

an

opposite

supports

the

conclusion,
conclusion

so

long

reached

as
by

substantial
the

ALJ.’”

Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 721 (6th
Cir. 2012) (quoting Foster, 279 F.3d at 353).

“The findings

of the Commissioner are not subject to reversal merely because
there exists in the record substantial evidence to support a
different conclusion.”
(6th Cir. 2001).

Buxton v. Halter, 246 F.3d 762, 772

This Court finds that there is sufficient

evidence in the record to support the ALJ’s conclusion that

13

Schooler’s

adaptive

cognitive

functioning

therefore,

that

functioning
suggested

Schooler

was

exceeded
by

not

his

the
IQ

disabled

level

scores
under

of
and,

Listing

12.05C.
The decision of the Commissioner will be affirmed and a
separate judgment entered.
Accordingly, IT IS ORDERED:
(1)

that the Plaintiff’s Motion for Summary Judgment [DE
9] is DENIED; and

(2)

that the Defendant’s Motion for Summary Judgment [DE
10] is GRANTED.

This the 8th day of May, 2014.

14