Stewart v. SSA
Filing
18
MEMORANDUM OPINION & ORDER:(1) Plaintiff's Motion for Summary Judgment [DE 13 ] is DENIED; (2) Defendant's Motion for Summary Judgment [DE 17 ] is GRANTED; (3) Judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Joseph M. Hood on 10/1/2018.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
LORETTA STEWART,
Plaintiff,
v.
NANCY C. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No.
6:17-cv-300-JMH
MEMORANDUM OPINION & ORDER
***
Plaintiff Loretta Stewart brings this matter under 42 U.S.C.
§ 405(g) seeking judicial review of an administrative decision of
the Acting Commissioner of Social Security.
The Court, having
reviewed the record and the cross-motions for summary judgment
filed by the parties, will AFFIRM the Commissioner’s decision as
no
legal
error
occurred
and
the
decision
is
supported
by
substantial evidence.
I.
Standard for Determining Disability
Under the Social Security Act, a disability is defined as
“inability 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 12
months.”
42 U.S.C. § 423(d)(1)(A).
In determining disability, an
Administrative Law Judge (“ALJ”) uses a five-step analysis.
See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Step
One
considers
substantial
claimant’s
gainful
whether
the
activity;
impairments
are
claimant
Step
Two,
“severe”;
is
still
whether
Step
performing
any
the
whether
Three,
of
the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform past relevant
work; and Step Five, 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.
Stewart
Procedural and Factual History
Title
XVI
Supplemental Social Security Insurance Benefits in May 2001.
[TR
132].
initially
filed
an
application
for
Stewart was found to be disabled and was awarded benefits
on May 24, 2001 based on an anxiety disorder.
[Id.; TR 309].
Subsequently, Stewart’s benefits were suspended because she was
incarcerated for more than 30 days.
Upon
release
from
[TR 121].
incarceration,
Stewart
filed
a
new
application for benefits on March 20, 2009, alleging disability
beginning March 1, 1991.
[TR 15].
On May 6, 2009, Stewart
underwent a consultative examination, conducted by Reba Moore, a
licensed psychological practitioner.
[TR 231-39].
During the
examination, Stewart reported thyroid problems, back pain, visual
2
problems, hypertension, and an irregular heartbeat.
[TR 233].
Stewart reported drug abuse that began after her divorce.
Additionally,
Stewart
reported
hospitalization in 1996.
[Id.].
that
she
had
a
[Id.].
psychiatric
Stewart reported that she has
attempted suicide multiple times from childhood until 1996. [Id.].
Furthermore, Stewart reported an attempted overdose in 2006 or
2007.
[Id.].
Stewart also reported hospitalizations in 2006
related to her drug dependency issues.
[Id.].
As part of the consultative examination, a Wechsler Adult
Intelligence Scale – Third Edition (WAIS-III) was administered to
Stewart.
[TR 235].
Stewart was found to have a verbal IQ score
of 67, a performance IQ score of 80, and a full-scale IQ score of
71.
[Id.].
Stewart’s verbal IQ score falls within the range of
mild mental retardation and Stewart’s performance and full-scale
scores are in the borderline range.
[Id.].
Finally, Stewart’s
reading skills are at a second-grade level and her mathematical
skills
are
at
a
fifth-grade
level.
[TR
237].
After
the
examination, Moore’s diagnostic impression found that Stewart
suffers from anxiety disorder, reading disorder, and borderline
intellectual functioning.
[TR 238].
Stewart’s claim for benefits was denied initially and upon
reconsideration. [TR 55-57, 62-64].
Stewart then pursued her
claims at a hearing in front of ALJ Tommye C. Mangus on March 29,
2010.
[TR 28-52].
ALJ Mangus issued a decision on August 6, 2010,
3
denying Stewart’s claims and finding that she was not disabled.
[TR 12-27].
The Appeals Council denied review.
[TR 1-6].
Having exhausted her administrative remedies, Stewart pursued
judicial review of the Commissioner’s decision on February 1, 2012.
See Stewart v. Astrue, No. 12-cv-28-JBC, 2012 WL 3063968 (E.D. Ky.
July 26, 2012).
The court remanded the case so that the ALJ could
obtain Stewart’s school records to help determine whether Stewart
had an intellectual disability1
twenty-two.
that manifested prior to age
Id. at *2-3.
Subsequently, attempts were made to retrieve Stewart’s school
records from Somerset Independent Schools.
[TR 496-501].
The
only record obtained was a Census Card that reflects the years
that Stewart attended Somerset Independent Schools and what grade
she was enrolled in during a given school year.
[TR 499-500].
Then, on November 5, 2013, a second hearing was held in front
of ALJ Mangus. [TR 346-72]. During the second hearing, ALJ Mangus
heard
testimony
from
vocational expert.
Stewart
[Id.].
and
from
Dr.
James
Miller,
a
Additionally, Stewart was represented
1
Current listing standards use the term “intellectual disability”
instead of “mental retardation” to define intellectual disorders.
See 20 C.F.R. pt. 404 subpt. P, app. 1, § 12.00(B)(4)(b). While
the previous regulation applies (see infra, Part IV), the Court
will primarily use the term intellectual disability to refer to
intellectual disorders. For this opinion, there is no substantive
difference in meaning between the two terms.
4
at
the
hearing
representative.
by
Kim
Murphy,
a
paralegal
and
non-attorney
[Id.].
After the second hearing, ALJ Mangus again concluded that
Stewart was not disabled.
[TR 299-317].
The ALJ found that
Stewart had not engaged in substantial gainful activity since March
20, 2009 and that Stewart had the following severe impairments: 1)
borderline intellectual functioning; 2) reading disorder; 3) a
history of anxiety disorder; and 4) a history of polysubstance
disorder, in sustained full remission.
[TR 304-05].
Still, at step three, ALJ Mangus found that the severity of
Stewart’s impairments, singly and in combination, did not meet the
criteria of listings 12.02, 12.05, 12.06, and 12.09.
[TR 306-09].
Pertaining
intellectual
to
whether
Stewart
suffers
from
an
disability under listing 12.05, the ALJ noted a minimal history of
mental health treatment and acknowledged that Stewart’s verbal IQ
score of 67 was “within the range contemplated by ‘paragraph C’ .
. . .”
[TR 307-08].
Even so, the ALJ concluded that there was
insufficient evidence to demonstrate that Stewart’s intellectual
disability manifested before the age of twenty-two.
[TR 308-09].
Furthermore, the ALJ concluded that the record indicated that
Stewart could “perform a full range of work at all exertional
levels, so long as the work [was] limited to simple, routine tasks
with only verbally presented, unwritten instructions.”
[TR 309].
Additionally, the ALJ concluded that there were a significant
5
number of jobs in the national economy that Stewart could perform
based on her age, education, work experience, and residual function
capacity.
[TR 311].
Stewart’s claim.
The Appeals Council again denied review of
[TR 291-97].
Thus, Stewart filed this action on October 27, 2017.
[DE 2].
The ultimate issue here is whether there is proof of intellectual
disability during Stewart’s developmental period.
Stewart argues
that evidence of her enrollment in special education courses and
being
held
back
in
third
grade
demonstrate
disability that manifested before age twenty-two.
2; DE 13-1, pp. 1, 6-15].
an
intellectual
[DE 13, pp. 1-
Alternatively, the Commissioner argues
that the ALJ’s decision is supported by substantial evidence
because the evidence of Stewart’s attendance in special education
courses and being held back is insufficient to demonstrate an
intellectual disability that manifested before age twenty-two.
[DE 17, pp. 4-7].
III. Standard of Review
When reviewing the ALJ’s ruling, this Court may not “try the
case de novo, resolve conflicts in evidence, or decide questions
of credibility.”
Ulman v. Comm’r of Soc. Sec, 693 F.3d 709, 713
(6th Cir. 2012).
This Court determines only whether the ALJ’s
ruling is supported by substantial evidence and was made pursuant
to proper legal standards.
Cutlip v. Sec’y of Health & Human
6
Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence”
is defined as “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.”
Id.
The Court
is to affirm the decision, provided it is supported by substantial
evidence,
even
differently.
if
this
Court
might
have
decided
the
case
See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-
90 (6th Cir. 1999).
IV. Analysis
As an initial matter, listing 12.05 was revised in September
2016 with an effective date of January 17, 2017.
66,137,
66,138
(Sept.
26,
2016).
The
81 Fed. Reg.
Social
Security
Administration “expect[s] that [f]ederal courts will review [the
Commissioner’s] final decisions using the rules that were in effect
at the time [the Commissioner] issued the decision.” Id. at 66,138
n.1.
When the ALJ denies benefits and the Appeals Council denies
review, the ALJ’s decision is reviewed as the Commissioner’s final
decision.
20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42
U.S.C. § 405(h).
Here, the ALJ’s most recent decision was decided
on December 24, 2013.
[TR 299-317].
Thus, the previous version
of Listing 12.05 is applicable to this review.
20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.05 (effective Dec. 24, 2013).
Listing 12.05 covers the mental disorder of intellectual
disability.
20 C.F.R. pt. 404 subpt. P, app. 1, § 12.05.
7
To meet
the
12.05
listing
standard,
a
claimant
must
demonstrate
“significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested . . . before
age 22.”
Id.
Additionally, the claimant must meet the criteria
in subparts A, B, C, or D.
Id.
12.05C requires “[a] valid verbal,
performance, or full scale IQ of 60 to 70 and a physical or other
mental impairment imposing an additional and significant workrelated limitation of function.”
Id.; see Foster v. Halter, 279
F.3d 348, 354 (6th Cir. 2001).
“The
plaintiff
has
the
ultimate
burden
to
establish
an
entitlement to benefits by proving the existence of a disability
. . . .”
Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680,
683 (6th Cir. 1992).
A claimant must demonstrate impairment that
satisfies the diagnostic description of the listed impairment in
the introductory paragraph and any one of the four listings.
20
C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(A)(3), 12.05.
Here,
there
is
substantial
evidence
to
support
the
ALJ’s
conclusion that Stewart did not meet the criteria for listing
12.05C.
Stewart’s verbal IQ score of 67 does partially meet the
listing criteria for intellectual disability.
[See TR 307-08].
Even so, Stewart must also demonstrate that she had an intellectual
disability that manifested during the developmental period.
C.F.R. pt. 404 subpt. P, app. 1, § 12.05.
20
Stewart’s current IQ
scores, standing alone, are insufficient to meet the 12.05 listing
8
standard.
See Turner v. Comm’r of Soc. Sec., 381 F. App’x 488,
491-92 (6th Cir. 2010).
Stewart relies heavily on Mowery v. Heckler, asserting that
Mowery is factually similar and that Stewart’s suffering from a
variety of medical problems demonstrates that she has a significant
work-related limitation.
See 771 F.2d 966 (6th Cir. 1986).
But
the Mowery decision is not controlling here because the Mowery
court applied an earlier version of the listing standards.
Turner, 381 F. App’x at 492 n.1.
See
The 12.05 listing standard has
since been amended and requires that a claimant establish a current
IQ between 60 and 70 and that he or she demonstrated subaverage
mental functioning and adaptive deficits during the developmental
period.
id.;
See 65 Fed. Reg. 50746, 50776 (August 21, 2000); see also
Foster
v.
Halter,
279
F.3d
348,
354
(6th
Cir.
2001)
(discussing the amendment).
Of course, a claimant does not have to produce IQ scores from
before age 22 to meet the 12.05 listing requirement.
See West v.
Comm’r of Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007).
Claimants may use other evidence such as test scores, history of
mental health treatment, poor academic performance, limitations in
daily activities, and limitations in social functioning, among
other
evidence,
to
demonstrate
manifestation
disability during the developmental period.
9
of
intellectual
Here,
Stewart
has
submitted
evidence
that
she
claims
demonstrates a manifestation of intellectual disability during the
developmental period.
First, Stewart testified that she was
enrolled in special education courses.
[TR 323, 342-43].
Second,
Stewart has submitted a Census Card from the Somerset Independent
School System that demonstrates that she was held back in third
grade.
[TR 499-500].
Even so, there is substantial evidence in the record to support
the ALJ’s finding that Stewart failed to demonstrate manifestation
of an intellectual disability during the developmental period.
First, the fact that Stewart was enrolled in special education
courses
does
not
demonstrate
an
intellectual
manifested during the developmental period.
reasons
why
a
student
may
attend
disability
that
There are various
special
education
courses.
Second, the Census Card demonstrates that Stewart was held back in
third grade.
Even so, the Census Card also demonstrates that
Stewart skipped from fifth to seventh grade.
Additionally, the
Census Card suggests that Stewart was not enrolled in school in
the
1972-73
and
the
1980-81
school
years
but
it
does
not
demonstrate why Stewart was not attending school during these years
or why she failed to complete her studies.
See Foster, 279 F.3d
at 355 (stating that evidence that claimant did not complete ninth
grade was insufficient to show subaverage intellectual functioning
10
during the developmental period because it was unclear why the
claimant had failed to complete her education).
Ultimately, Stewart’s attendance in special education courses
and retention in third grade demonstrate that she had poor academic
performance, but they do not demonstrate that an intellectual
disability manifested during her developmental period.
“[P]oor
academic performance, in and of itself” does not establish onset
of subaverage intellectual functioning during the developmental
period.
Hayes v. Comm’s of Soc. Sec., 357 F. App’x 672, 677 (6th
Cir. 2009).
Stewart’s poor academic performance in school could
be attributable to a variety of reasons or circumstances, such as
her home life or a general disinterest in academics, that are
unrelated to Stewart’s intellectual functioning.
Moreover, the record indicates that Stewart has a history of
drug dependency and abuse as an adult.
[TR 233, 117-30].
The ALJ
observed that Stewart’s drug use after the age of twenty-two could
have
had
some
functioning.
impact
on
her
current
level
of
intellectual
[TR 18].
Additionally, the ALJ relied on other evidence in the record
that suggests that Stewart does not suffer from an intellectual
disability.
Stewart underwent a consultative evaluation with Reba
Moore, a licensed psychological practitioner.
Additionally, the
record was reviewed by two state agency reviewers, Dr. H. Thompson
Prout and Dr. Ed Ross.
[TR 240-57, 271-85].
11
Importantly, while
acknowledging some borderline intellectual functioning, Moore,
Prout, and Ross all stopped short of diagnosing Stewart with
intellectual disability.
Furthermore, the ALJ noted that Stewart can attend to her
personal care, complete household chores, goes shopping, drives a
vehicle, and manages her money as needed, which demonstrates no
more than a mild limitation with activities of daily living.
307].
[TR
Furthermore, the ALJ observed that, even with moderate
difficulties in social functioning, Stewart has regular social
interaction with family, watches television, talks on the phone,
regularly attends church, and plays bingo.
[Id.].
The ALJ also
noted that even during Stewart’s incarceration she maintained
normal judgment and demonstrated appropriate behavior, memory,
mood, and affect.
[Id.].
In sum, this case was previously remanded to gather Stewart’s
academic records.
See Stewart v. Astrue, No. 12-cv-28-JBC, 2012
WL 3063968 (E.D. Ky. July 26, 2012).
Previously, the Court held
in part that “[i]f the school records are requested and not
received, then the ALJ may deny benefits.”
Id. at *3.
The only
record obtained from the Somerset Independent Schools was the
Census Report.
Here, Stewart’s scant academic history is both inconclusive and
insufficient
to
demonstrate
manifestation
disability during the developmental period.
12
of
an
intellectual
The record suggests
that Stewart had poor academic performance but the reason for the
poor performance is unclear.
Furthermore, Stewart was evaluated
by a psychological practitioner and the record was reviewed by two
state agency reviewers who all stopped short of diagnosing Stewart
with an intellectual disability.
Finally, Stewart’s adaptive and
social functioning suggests that she can complete daily tasks with
only mild to moderate difficulty.
As such, there is sufficient
evidence in the record to support the ALJ’s conclusion that Stewart
has not demonstrated manifestation of intellectual disability
before age twenty-two and there has failed to meet the criteria
for listing 12.05.
V. Conclusion
Having found no legal error on the part of the ALJ and that
the decision is supported by substantial evidence, the Acting
Commissioner’s final decision is AFFIRMED.
Accordingly, it is hereby ORDERED as follows:
(1)
Plaintiff’s
Motion
for
Summary
Judgment
[DE
13]
is
Defendant’s
Motion
for
Summary
Judgment
[DE
17]
is
DENIED;
(2)
GRANTED;
(3)
Judgment in favor of the Defendant will be entered
contemporaneously herewith.
This the 1st day of October, 2018.
13
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?