Dykas v. Commissioner of Social Security
Filing
23
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 21 ; denying objections 22 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, rmw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT JOHN DYKAS,
Plaintiff,
Case No: 1:12-cv-436
v.
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
OPINION AND ORDER
Plaintiff seeks judicial review of a decision of the Commissioner of the Social Security
Administration. See 42 U.S.C. § 405(g). The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R & R), recommending that this Court affirm the
Commissioner’s decision to deny Plaintiff’s claim for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act. The matter
is presently before the Court on Plaintiff’s objections to the R & R. In accordance with 28 U.S.C.
§ 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those
portions of the R & R to which objections have been made. The Court denies the objections and
issues this Opinion and Order.
I.
Plaintiff first objects that the Magistrate Judge’s findings regarding Plaintiff’s disability
under section 12.05 (mental retardation) of the Listing of Impairments are not supported by
substantial evidence and are contrary to settled law. This objection is without merit.
Plaintiff argues that the Magistrate Judge misinterpreted the settled law for the analysis of
developmental disability claims based on mental retardation by essentially requiring a diagnosis of
“mental retardation” prior to age 22, which is contrary to section 12.05. Further, the Magistrate
Judge erred in finding that Plaintiff did not meet the criteria under 12.05C and 12.05D, that his
deficits in adaptive functioning did not manifest before age 22, and that Plaintiff’s IQ score of 65
indicated “borderline intellectual functioning.” Plaintiff contends that a proper analysis shows that
Plaintiff is disabled under 12.05C and/or 12.05D, and therefore, the Report and Recommendation
should not be adopted.
The Magistrate Judge fully considered Plaintiff’s contentions vis-à-vis the standards under
Listing 12.05, and properly concluded that the ALJ’s1 decision was supported by substantial
evidence. The Magistrate Judge noted that “even if the Court assumes that Plaintiff satisfies the
criteria articulated in subsections (C) and (D), he must also satisfy the requirements articulated in
the introductory paragraph of Section 12.05” (R & R at 11, citing 20 C.F.R., Pt. 404, Subpt. P, App.
1, § 12.00(A) (“‘[i]f your impairment satisfies the diagnostic description in the introductory
paragraph and any one of the four sets of criteria, we will find that your impairment meets’ section
12.05”)) (emphasis added). That is, to satisfy section 12.05, the claimant must demonstrate that he
experienced deficiencies in adaptive functioning prior to attaining the age of 22 (R & R at 11, citing
Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (emphasis added)). Contrary to Plaintiff’s
assertion, the Magistrate Judge’s analysis did not essentially require a diagnosis of mental
retardation prior to age 22. In fact, as Plaintiff notes (Obj. at 2), the Magistrate Judge observed that
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Administrative Law Judge
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“[t]he record contains no evidence that Plaintiff experienced deficiencies in adaptive behavior or
suffered from mental retardation prior to the age of 22 or at anytime after age 22” (R & R at 11)
(emphasis added).
The Magistrate Judge found that the evidence supported the ALJ’s conclusion that Plaintiff
suffered from borderline intellectual functioning, which is inconsistent with a diagnosis of mental
retardation and, therefore, precluded a finding that the requirements of section 12.05 were met (id.
at 12, citing Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450, 451 [452] (6th Cir. Feb. 15, 2007)).
Moreover, the Magistrate Judge found that Plaintiff’s range of activities likewise failed to support
his argument that he satisfied section 12.05 because they indicated that he “did not experience
deficiencies in adaptive behavior prior to age 22, or thereafter for that matter” (R &R at 12)
(emphasis added). Contrary to Plaintiff’s argument, this Court does not find Cooper distinguishable
on the facts.
Plaintiff has demonstrated no error in the Magistrate Judge’s analysis or conclusion. While
Plaintiff presents a different view of the evidence, “[t]he findings of the Commissioner are not
subject to reversal merely because there exists in the record substantial evidence to support a
different conclusion.” Buxton v. Halter, 246 F.3d 762, 772-73 (6th Cir. 2001). The substantial
evidence standard presupposes the existence of a zone of choice within which the decision maker
can properly rule either way, without judicial interference. Id. at 773; Mullen v. Bowen, 800 F.2d
535, 545 (6th Cir. 1986). Plaintiff’s first objection is therefore denied.
II.
Secondly, Plaintiff objects that the Report and Recommendation of the Magistrate Judge is
based on findings and arguments that were not addressed by the Commissioner, and therefore,
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Plaintiff is entitled to a remand. Plaintiff asserts that (1) the ALJ did not specifically address
whether Plaintiff’s deficits in adaptive functioning manifested before age 22, except to point out that
Plaintiff’s Disability Report stated that Plaintiff was not in special education; and (2) the ALJ’s
finding that Plaintiff’s past work was “semi-skilled” is contrary to the VE2 testimony (Obj., at 10,
citing Tr. 18). Plaintiff argues that if the Court determines that there is an issue whether he has or
had deficits in adaptive functioning, or an issue as to the severity of those deficits, the Court must
remand the case for further factual findings.
As discussed above, Plaintiff has failed to demonstrate error in the Magistrate Judge’s
analysis or conclusions with regard to whether Plaintiff met the requirements of Listing 12.05. The
Court therefore finds no issue warranting remand for further factual findings with regard to whether
Plaintiff has or had deficits in adaptive functioning or the severity of those deficits. Plaintiff’s
second objection is denied.
Accordingly:
IT IS HEREBY ORDERED that the objections (Dkt 22) are DENIED, the Report and
Recommendation of the Magistrate Judge (Dkt 21) is APPROVED and ADOPTED as the Opinion
of the Court, and the decision of the Commissioner of Social Security is AFFIRMED.
A Judgment will be entered consistent with this Opinion and Order.
Dated: March 31, 2014
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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Vocational Expert
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