Small v. Commissioner of Social Security
OPINION affirming the Commissioner's decision; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, rmw)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SHARYL RUTH SMALL,
Case No. 1:15-cv-0683
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Sharyl Small seeks review of the Commissioner’s decision denying her
claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles
II and XVI of the Social Security Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who
is charged with finding the facts relevant to an application for disability benefits, and her findings
are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 46 years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (PageID.30, 58.) She graduated high school, after attending special education classes, and
was previously employed as a cashier. (PageID.62.) Plaintiff is currently employed at McDonald’s,
though such does not rise to the level of substantial gainful activity. (PageID.60.) Plaintiff applied
for benefits on December 13, 2012, alleging that she had been disabled since June 20, 2010, due to
severe depression, lower back pain, and varicose veins. (PageID.91, 101, 190–202.) Plaintiff’s
applications were denied on April 2, 2013, after which time she requested a hearing before an ALJ.
(PageID.122–129, 132–133.) On January 28, 2014, Plaintiff appeared with her counsel at an
administrative hearing before ALJ Christopher Ambrose during which both Plaintiff and a
vocational expert (VE) testified. (PageID.53–89.) In a written decision dated February 25, 2014,
the ALJ determined that Plaintiff was not disabled. (PageID.30–52.) On May 5, 2015, the Appeals
Council declined to review the ALJ’s decision, making it the Commissioner’s final decision in the
matter. (PageID.22–25.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R.
An individual who is working and engaging in substantial gainful activity will not
be found to be “disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));
An individual who does not have a “severe impairment” will not be found “disabled”
(20 C.F.R. § 404.1520(c));
If an individual is not working and is suffering from a severe impairment which
meets the duration requirement and which “meets or equals” a listed impairment in
Appendix 1 of Subpart P of Regulations No. 4, a finding of “disabled” will be made
without consideration of vocational factors (20 C.F.R. § 404.1520(d));
If an individual is capable of performing work he or she has done in the past, a
finding of “not disabled” must be made (20 C.F.R. § 404.1520(e));
If an individual’s impairment is so severe as to preclude the performance of past
work, other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if other work can be performed.
(20 C.F.R. § 404.1520(f)).
§ 404.1520(a). The regulations also provide that if a claimant suffers from a nonexertional
impairment as well as an exertional impairment, both are considered in determining the claimant’s
residual functional capacity (RFC). See 20 C.F.R. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “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.
ALJ Ambrose determined Plaintiff’s claim failed at the fourth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her
alleged onset date. (PageID.36.) At step two, the ALJ determined Plaintiff had the following severe
impairments: (1) degenerative disc disease of the cervical and lumbar spine; (2) obstructive sleep
apnea; (3) status post left foot tendon rupture with ongoing pain; (4) obesity; (5) depression; and (6)
learning disability. (PageID.36–37.) At the third step, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled the requirements of the Listing of
Impairments. (PageID.37–40.) At the fourth step, the ALJ found that Plaintiff retained the RFC
based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), except she can occasionally climb ladders, ropes, or
scaffolds; and must avoid even moderate use of moving machinery
and exposure to unprotected heights. She can perform simple,
routine, and repetitive tasks (unskilled work with an SVP of 1 or 2).
(PageID.40.) Continuing with the fourth step, the ALJ determined, based on VE testimony, that
Plaintiff was able to perform her past relevant work as a cashier. (PageID.47.) Having made his
determination at step four, the ALJ was not required to continue the evaluation and could have
entered a finding that Plaintiff was not entitled to benefits. However the ALJ also included an
alternative step five determination that a substantial number of other jobs existed that Plaintiff could
perform. See Richardson, 735 F.2d at 964. (PageID.47–48.) The VE identified approximately
250,000 jobs within the nation in the positions of small parts packager, bench hand, and assembler
that an individual similar to Plaintiff could perform. (PageID.48, 82.) This represents a significant
number of jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); McCormick v. Sec’y of
Health & Human Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
Accordingly, the ALJ concluded that Plaintiff was not disabled at any point from
June 10, 2010 through February 25, 2014. (PageID.67.)
The Listing of Impairments, detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1,
identifies various impairments which, if present to the severity detailed therein, result in a finding
that the claimant is disabled. Plaintiff’s sole argument is that she is entitled to relief because the ALJ
improperly determined that she does not satisfy Section 12.05 (Intellectual Disability) of the Listing.
(PageID.476.) Section 12.05 of the Listing provides, in relevant part, the following:
12.05 Intellectual disability: Intellectual disability 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 this disorder is met when the
requirements in A, B, C, or D are satisfied.
Mental incapacity evidenced by dependence upon
others for personal needs (e.g., toileting, eating,
dressing, or bathing) and inability to follow
directions, such that the use of standardized measures
of intellectual functioning is precluded;
A valid verbal, performance, or full scale IQ of 59 or
A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing additional and significant work-related
limitation of function;
A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
Marked restriction of activities of daily living;
Marked difficulties in maintaining social
Marked difficulties in maintaining
concentration, persistence or pace; or
Repeated episodes of decompensation, each of
20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.05. Specifically, Plaintiff asserts that she satisfies
sections 12.05(B) and (C). Cognitive testing performed in 1984 revealed that Plaintiff possessed
a Verbal IQ of 72, a Performance IQ of 55, and a Full Scale IQ of 61. (PageID.425.) The short
argument in Plaintiff’s initial brief appears to be that she meets the requirements of Section 12.05(B)
because of the Performance IQ of 55, or in the alternative, she meets the requirements of Section
12.05(C) because of the Performance IQ score of 55 and the ALJ determined she could only perform
light work. (PageID.477–78.) Plaintiff’s initial brief, however, does not address the requirements
articulated in the introductory paragraph of Section 12.05. 20 C.F.R., Part 404, Subpart P, Appendix
1, § 12.00(A). Plaintiff must establish that she satisfied the “diagnostic description” of intellectual
disability articulated in the introductory paragraph of Section 12.05 in order to satisfy the listing’s
requirements. Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450, 452 (6th Cir. 2007); see also
Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (to satisfy Section 12.05, the claimant must
demonstrate that she experienced deficiencies in adaptive functioning prior to attaining the age of
22). A claimant does not satisfy a particular listing unless all of the requirements of the listing are
present. See Hale v. Sec’y of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir.1987). See,
e.g., Thacker v. Soc. Sec. Admin., 93 F. App’x 725, 728 (6th Cir. 2004) (“[w]hen a claimant alleges
that he meets or equals a listed impairment, he must present specific medical findings that satisfy
the various tests listed in the description of the applicable impairment or present medical evidence
which describes how the impairment has such equivalency”).
The ALJ found that Plaintiff did not have the requisite deficits in adaptive functioning
because she lived independently, works part time, performs personal care without difficulty,
prepared meals, shopped, cleaned, and did the laundry. (PageID.40.) Plaintiff’s function report
mirrors these findings. Plaintiff stated she lived alone. She would spend a typical day working in
the morning from 5 to 9 AM, then doing dishing, eating lunch, reading a book, watching television,
and preparing dinner. (PageID.241.) She further stated she had no problem with her personal care,
nor did she need reminders. She was able to make sandwiches and frozen dinners, though she
argues she was able to cook more healthy meals prior to her onset date. (PageID.242.) Furthermore,
she goes out every other day and shops once a month. She is able to count change and handle a
savings account and checkbook. (PageID.244.) She attends church regularly as well as a social
group. (PageID.245.) Plaintiff stated she can follow written instructions, though she does have bad
vision. Regarding verbal instructions, Plaintiff noted she had to be told things more than once on
occasion. She has some difficulty with family members, did not have any notable difficulty getting
along with authority figures, but has difficulty handling stress. (PageID.245–46.)
In her reply brief, Plaintiff argues for the first time that she meets the introductory
paragraph requirements. She notes that she took special education classes while in school. She also
argues that the records show that while in school she was immature and shy. Plaintiff also argues
that she only obtained her job at McDonald’s through the assistance she received from her school.
(PageID.489.) While Plaintiff may have participated in special education classes as a youth, she
nevertheless successfully completed high school, which supports the ALJ’s conclusion that Plaintiff
did not satisfy this Listing. See Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641–42 (6th Cir.
2013). Plaintiff has also failed to present evidence that she experienced, prior to age 22, deficits in
adaptive functioning, such as an inability to care for herself or handle social situations. See id. at
642. While earlier school records refer to a shyness or timidity on the part of Plaintiff, later records
find that she was not as quiet or shy. In grade nine, Plaintiff’s social and emotional performance
was “age appropriate.” (PageID.427.) A year later Plaintiff was described as not appearing as
“quiet, shy and withdrawn as previous reports” although there were still noticeable tendencies.
(PageID.425.) While there exists evidence that Plaintiff experiences a certain level of cognitive
impairment, Plaintiff’s various activities, including working for several years, whether or not she
had assistance in obtaining this job, are inconsistent with a conclusion that Plaintiff satisfies this
Listing. See, e.g., Burrell v. Comm’r of Soc. Sec., No. 99-4070, 2000 WL 1827799, at *2 (6th Cir.,
Dec. 8, 2000). The Court does not doubt that Plaintiff has limitations, especially in the area of
concentration, however such are adequately accounted for in the ALJ’s RFC.
The burden rests with Plaintiff to demonstrate that she satisfies the requirements of
a listed impairment. See Kirby v. Comm’r of Soc. Sec., No. 01-5966, 2002 WL 1315617, at *1 (6th
Cir., June 14, 2002). The ALJ evaluated the evidence of record and determined that Plaintiff failed
to meet her burden in this regard. The ALJ’s decision is supported by substantial evidence.
Accordingly, Plaintiff’s claim of error is denied.
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is AFFIRMED. A separate judgment shall issue.
Dated: June 24, 2016
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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