Buell v. SSA
Filing
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MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED as follows: (1) Plaintiff's Motion for Summary Judgment (D.E. 18 ) is DENIED; (2) Commissioner's Motion for Summary Judgment (D.E. 19 ) is GRANTED; (3) JUDGMENT in favor of the Defendant will be entered contemporaneously herewith. Signed by Magistrate Judge Hanly A. Ingram on 12/18/2014. (KJA)cc: COR Modified document type on 12/18/2014 (KJA).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
AARON ROSS BUELL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 6:14-CV-05-HAI
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) MEMORANDUM OPINION & ORDER
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Plaintiff, Aaron Ross Buell, brings this action pursuant to 42 U.S. §§ 405(g) and 1383(c)
to obtain judicial review of an administrative decision of the Commissioner of Social Security
(“Commissioner”) denying his application for Supplemental Security Income (“SSI”).
The
parties each filed a notice of consent to the referral of this matter to a magistrate judge. D.E. 11;
12. Accordingly, this matter was referred to the undersigned to conduct all proceedings and
order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of
Civil Procedure 73. D.E. 13. The Court, having reviewed the record and for the reasons stated
herein, will deny Plaintiff’s Motion for Summary Judgment (D.E. 18) and grant the
Commissioner’s Motion for Summary Judgment (D.E. 19).
I. BACKGROUND
Buell filed an application for SSI on February 4, 2011. D.E. 8 at 1. He alleges disability
beginning on January 27, 2011 (D.E. 18-1 at 1), due to problems with anxiety, learning
disabilities, and cancer (D.E. 8-1 at 37).
Buell’s claim was denied initially and upon
reconsideration. Id. at 17. Subsequently, at Buell’s request, an administrative hearing was
conducted before Administrative Law Judge Tommye C. Mangus (“ALJ”) on August 30, 2012.
Id. During the hearing, the ALJ heard testimony from Buell and vocational expert Julian M.
Nadolsky (“VE”). Id. Buell, who was twenty-three years old as of the alleged onset date, has a
high school education. Id. at 25. Although Buell has no past relevant work experience, the VE
testified that jobs exist in significant numbers in the national economy that Buell could perform,
and the ALJ accepted that testimony. Id. at 25-26.
In evaluating a claim of disability, an ALJ conducts a five-step sequential analysis. See
20 C.F.R. §§ 404.1520, 416.920.1 First, if a claimant is working at a substantial gainful activity,
he is not disabled.
20 C.F.R. § 404.1520(b).
Second, if a claimant does not have any
impairment or combination of impairments which significantly limit his physical or mental
ability to do basic work activities, then he does not have a severe impairment and is not disabled.
20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). If a
claimant is not found disabled at step 3, the ALJ must determine the claimant’s residual
functional capacity, which is her ability to do physical and mental work activities on a sustained
basis despite limitations from her impairments. 20 C.F.R. § 404.1520(e). Fourth, if a claimant’s
1
The Sixth Circuit summarized this process in Jones v. Comm’r of Soc. Sec., 336 F.3d 469 (6th
Cir. 2003):
To determine if a claimant is disabled within the meaning of the Act, the ALJ
employs a five-step inquiry defined in 20 C.F.R. § 404.1520. Through step four,
the claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her
past relevant work, but at step five of the inquiry, which is the focus of this case,
the burden shifts to the Commissioner to identify a significant number of jobs in
the economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile.
Id. at 474 (internal citations omitted).
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impairments do not prevent him from doing past relevant work (given the ALJ’s assessment of
his residual functional capacity), he is not disabled. 20 C.F.R. § 404.1520(e).
Fifth, if a
claimant’s impairments (considering his residual functional capacity, age, education, and past
work) do not prevent him from doing other work that exists in the national economy, he is not
disabled. 20 C.F.R. § 404.1520(f).
In this case, at Step 1, the ALJ found that Buell has not engaged in substantial gainful
activity since February 4, 2011, the date the application was protectively filed. D.E. 8-1 at 19.
At Step 2, the ALJ found that Buell has the following severe impairments: “borderline
intellectual functioning, learning disability, a history of skin cancer, and anxiety.” Id. At Step 3,
the ALJ found that Buell’s impairments did not meet or medically equal the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 21. At Step 4, the
ALJ determined that Buell:
[H]as the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: he can
understand and remember simple instructions requiring brief initial learning
periods; maintain attention and concentration for simple instructions requiring
little independent judgment and involving minimal variations; tolerate occasional,
casual contact with others in a task-focused work setting; and adapt to work place
changes that are occasional and gradually introduced.
Id. at 23. The ALJ found that Buell has no past relevant work. Id. at 25. At step 5, the ALJ
relied on the testimony of VE to find that, based on Buell’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers in the national
economy that Buell could perform. Id. at 25-26. Accordingly, on September 28, 2012, the ALJ
issued an unfavorable decision, finding that Buell was not disabled, and therefore, ineligible for
SSI. The Appeals Council declined to review the ALJ’s decision on November 19, 2013 (Id. at
5-8), and Buell now seeks judicial review in this Court.
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II. DISCUSSION
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity’ because of a medically determinable physical or mental impairment
of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th
Cir. 2007). Judicial review of the denial of a claim for Social Security benefits is limited to
determining whether the ALJ’s findings are supported by substantial evidence and whether the
correct legal standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007).
“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.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). The substantial evidence standard “presupposes that there is a zone of choice within
which decision makers can go either way, without interference from the court.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quotes and citations omitted).
In determining the existence of substantial evidence, courts must examine the record as a
whole. Id. (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981),
cert. denied, 461 U.S. 957 (1983)). However, courts are not to conduct a de novo review, resolve
conflicts in evidence, or make credibility determinations.
Id. (citations omitted); see also
Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the
Commissioner’s decision is supported by substantial evidence, it must be affirmed even if the
reviewing court would decide the matter differently, and even if substantial evidence also
supports the opposite conclusion. See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999); see also Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.
1993); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); Mullen, 800 F.2d at 545.
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A. Claim that the ALJ erred in failing to find that Buell meets the criteria of
12.05(c).
Buell’s motion first argues that the ALJ erred in failing to find that his intellectual
impairments satisfied the criteria of Listing 12.05(C). D.E. 18-1 at 6-8. By meeting all the
criteria set forth in Listing 12.05(C), a claimant may demonstrate that he suffers from mental
retardation under the Listing of Impairments, so as to qualify for benefits. In order to satisfy the
requirements of Listing 12.05(C), a claimant must show:
(1) he experiences “significantly subaverage general intellectual functioning with
deficits in adaptive functioning that initially manifested during the developmental
period” (i.e., the diagnostic description); (2) he has a “valid verbal, performance,
or full scale IQ of 60 through 70”; and (3) he suffers from “a physical or other
mental impairment imposing an additional and significant work-related limitation
of function.”
West v. Comm'r Soc. Sec. Admin., 240 F. App'x 692, 697-98 (6th Cir. 2007) (quoting 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.05(C); Foster v. Halter, 279 F.3d 348, 354–55 (6th Cir. 2001); 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A)). From the introductory paragraph of Listing 12.05,
a claimant must be able to show that “the evidence demonstrates or supports onset of the
impairment before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
Buell was confronted with the burden at step 3 to demonstrate that his impairment met or
equaled all of the requirements of Listing 12.05(C). See Jones, 336 F.3d at 474. To carry that
burden, Buell was required to demonstrate that he met each criterion of the listing. See Sullivan
v. Zebley, 493 U.S. 521, 530 (1990) (“An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.”).
In her written decision, the ALJ expressly considered Buell’s impairments when
addressing whether Buell meets the requirements of Listings 12.02, 12.05, or 12.06, and found
that Buell failed to carry his burden to show he met any of those listings’ criteria. D.E. 8-1 at 22.
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In relevant part, the ALJ specifically found that Buell did not satisfy the “paragraph C” criteria
of Listing 12.05, “because IQ scores pre-age 22 were in the borderline range of intellectual
functioning ,[sic] specifically, verbal IQ of 89, performance IQ of 83, and full scale IQ of 85.”
Id. at 23 (citing “Ex. 1F”).2 The scores cited by the ALJ were produced by the administration of
the WAIS-IV in January 1997, at which time Buell was nine years old. D.E. 8-1 at 232. Further,
Buell himself reported that he was not disabled prior to age 22. D.E. 8-1 at 129. As such, the
record does not reflect that Buell earned “[a] valid verbal, performance, or full scale IQ of 60
through 70” prior to the date Buell attained the age of 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.05(C).
Though Buell’s Motion for Summary Judgment cites numerous IQ scores within the
range of 60-70, none of the cited tests were conducted within the relevant period. See D.E. 18-1
at 6. Buell argues that, nevertheless, “[t]he overall school records taken as a whole support the
most recent IQ findings.” Id. at 7. Buell notes that he was placed in special education, had to
repeat grades, scored novice and apprentice on standardized testing, and had a learning disorder.
Id.
However, the ALJ noted that Defendant was a regular student in high school and
successfully graduated. D.E. 8-1 at 22; 35. Relying on the 1997 WAIS-IV scores, the ALJ
found that Buell did not meet the element requiring “significantly subaverage general intellectual
functioning with deficits in adaptive functioning that initially manifested during the
developmental period” as required by 20 C.F.R. Pt. 404, Subpart P, Appendix 1, § 12.05; D.E. 81 at 23. Given the 1997 IQ scores relied upon by the ALJ, the absence of contradicting IQ scores
in the record during the developmental period, and Buell’s own assessment that he was not
2
It appears that “Ex. 1F” refers to Exhibit B1F, found at pages 226-261 of Docket Entry 8-1.
The IQ scores identified by the ALJ appear at D.E. 8-1 at 232.
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disabled prior to age 22, the Court finds substantial evidence in the record supporting the ALJ’s
determination that Buell’s impairments fail to meet the criteria of Listing 12.05(C).
B. Claim that the ALJ’s determination that Buell is not disabled is not
supported by substantial evidence.
Although Buell argues that substantial evidence does not support the ALJ’s
determination, he does not identify any particular finding or conclusion that he seeks to
challenge for this reason. Where a claimant has failed to specifically identify alleged error, the
Sixth Circuit has:
decline[d] to formulate arguments on [the claimant’s] behalf, or to undertake an
open-ended review of the entirety of the administrative record to determine (i)
whether it might contain evidence that arguably is inconsistent with the
Commissioner’s decision, and (ii) if so, whether the Commissioner sufficiently
accounted for this evidence. Rather, we limit our consideration to the particular
points that [claimant] appears to raise in [his] brief on appeal.
Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006); see also
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived. It is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to . . . put flesh on its bones.”) (citation and quotation marks omitted).
After reciting the legal standard applicable to the case, Buell’s argument consists of the
following:
[i]t is the contention of the Plaintiff under these standards of review that there is
not substantial evidence to support the denial of his application for security
benefits. The objective medical evidence unequivocally documents that the
Plaintiff has several conditions which are disabling.
D.E. 18-1 at 8-9. However, “[t]his challenge warrants little discussion, as [Buell] has made little
effort to develop this argument in [his] brief on appeal, or to identify any specific aspects of the
Commissioner’s determination that lacks support in the record.” Hollon, 447 F.3d at 490-91.
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Notwithstanding the imprecise nature of Buell’s argument, as outlined above, a review of
the evidence of record demonstrates that the ALJ’s decision is supported by substantial evidence.
See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); see also Rogers, 486 F.3d
241; Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (“[F]indings of the Commissioner are
not subject to reversal merely because there exists in the record substantial evidence to support a
different conclusion.”). Having reviewed the entire record of this matter, the Court finds no error
with the ALJ’s assessment and analysis of the evidence of record or her determination that Buell
is not disabled as defined by the Act.
III. CONCLUSION
Accordingly, and the Court being sufficient advised, IT IS HEREBY ORDERED as
follows:
(1)
Plaintiff’s Motion for Summary Judgment (D.E. 18) is DENIED;
(2)
Commissioner’s Motion for Summary Judgment (D.E. 19) is GRANTED;
(3)
JUDGMENT in favor of the Defendant will be entered contemporaneously
herewith.
This the 18th day of December, 2014.
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