Mack v. Commissioner of Social Security

Filing 13

OPINION vacating the Commissioner's decision and remanding the matter for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g); signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal) Modified text on 8/7/2017 (jal).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHARKEISHA MACK,
Plaintiff,

Hon. Ellen S. Carmody

v.

Case No. 1:16-CV-1149

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
______________________________________/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act. The
parties subsequently agreed to proceed in this Court for all further proceedings, including an order
of final judgment. Section 405(g) limits the Court to a review of the administrative record and
provides that if the Commissioner’s decision is supported by substantial evidence it shall be
conclusive. The Commissioner has found that Plaintiff is not disabled within the meaning of the
Act. For the reasons articulated herein, the Commissioner’s decision is vacated and this matter
remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).

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 and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). 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 and Human Services, 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 Dep’t of Health and Human Services, 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 and Human Services, 735
F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, 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

2

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.

PROCEDURAL POSTURE
Plaintiff was 26 years of age on her alleged disability onset date. (PageID.169). She
completed high school as an “educable, mentally impaired” student and worked previously as a child
monitor. (PageID.41, 46). Plaintiff applied for benefits on November 22, 2013, alleging that she
had been disabled since January 1, 2012, due to bi-polar disorder, anxiety, anger problems,
emotional impairment, and learning difficulties. (PageID.169-74, 186). Plaintiff’s application was
denied, after which time she requested a hearing before an Administrative Law Judge (ALJ).
(PageID.79-167). On January 26, 2015, Plaintiff appeared before ALJ James Prothro with testimony
being offered by a vocational expert. (PageID.54-77). In a written decision dated April 17, 2015,
the ALJ determined that Plaintiff was not disabled. (PageID.37-48). The Appeals Council declined
to review the ALJ’s decision, rendering it the Commissioner’s final decision in the matter.
(PageID.25-30). Plaintiff subsequently initiated this pursuant to 42 U.S.C. § 405(g), seeking judicial
review of the ALJ’s decision.

3

ANALYSIS OF THE ALJ’S DECISION
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. §§
404.1520(a), 416.920(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
her residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of
proof through step four of the procedure, the point at which her residual functioning capacity (RFC)
is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec.,

1

1. 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), 416.920(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§ 404.1520(c),
416.920(c));
3. 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), 416.920(d));

4. If an individual is capable of performing her past relevant work, a finding of “not disabled” must be made (20 C.F.R.
§§ 404.1520(e), 416.920(e));
5. 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), 416.920(f)).

4

127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears
the burden of proof).
The ALJ determined that Plaintiff suffers from: (1) mood disorder (not otherwise
specified); (2) bi-polar II disorder; (3) post-traumatic stress disorder (PTSD); (4) personality
disorder; (5) intermittent explosive disorder; and (6) marijuana abuse, severe impairments that
whether considered alone or in combination with other impairments, failed to satisfy the
requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part
404, Subpart P, Appendix 1. (PageID.40-44). With respect to Plaintiff’s residual functional
capacity, the ALJ found that Plaintiff retained the ability to perform work at all exertional levels
subject to the following limitations: (1) she is limited to simple, repetitive tasks; (2) she can have
occasional interaction with the public, co-workers, and supervisors; and (3) she cannot perform fastpaced work. (PageID.44).
The ALJ found that Plaintiff cannot perform her past relevant work at which point
the burden of proof shifted to the Commissioner to establish by substantial evidence that a
significant number of jobs exist in the national economy which Plaintiff could perform, her
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this issue, “a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform specific jobs” is needed to meet the burden.
O’Banner v. Sec’y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis
added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant
can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly,
ALJs routinely question vocational experts in an attempt to determine whether there exist a

5

significant number of jobs which a particular claimant can perform, his limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 3,550 jobs in the state
of Michigan and approximately 157,000 jobs nationwide that an individual with Plaintiff’s RFC
could perform, such limitations notwithstanding. (PageID.68-73). This represents a significant
number of jobs. See Born v. Sec’y of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir.
1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Martin v. Commissioner of Social Security,
170 Fed. Appx. 369, 374 (6th Cir., Mar. 1, 2006). Accordingly, the ALJ concluded that Plaintiff
was not entitled to disability benefits.

I.

Section 12.05 of the Listing of Impairments
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 argues that she is entitled to relief because the ALJ
improperly determined that she does not satisfy Section 12.05 (Intellectual Disability) of the Listing.
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.
A.

Mental incapacity evidenced by dependence upon
others for personal needs (e.g., toileting, eating,
dressing, or bathing) and inability to follow
6

directions, such that the use of standardized measures
of intellectual functioning is precluded;
OR
B.

A valid verbal, performance, or full scale IQ of 59 or
less;

OR
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;

OR
D.

A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
1.

Marked restriction of activities of
daily living; or

2.

Marked difficulties in maintaining
social functioning; or

3.

Marked difficulties in maintaining
concentration, persistence or pace; or

4.

Repeated episodes of decompensation,
each of extended duration.

20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.05 (2015).
Specifically, Plaintiff asserts that she satisfies section 12.05(C). As noted above, to
satisfy subsection (C), Plaintiff must demonstrate a valid IQ score of 60 through 70 as well as the
existence of an additional impairment which imposes significant work-related limitation of function.
Plaintiff must also establish that she satisfies the “diagnostic description” of intellectual disability
articulated in the introductory paragraph of Section 12.05. See 20 C.F.R., Part 404, Subpart P,

7

Appendix 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); Cooper v. Commissioner of Social Security, 217 Fed. Appx. 450, 451 (6th
Cir., Feb. 15, 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 age 22).
Defendant concedes that Plaintiff suffers from an additional impairment which results
in significant work-related limitation of function. (ECF No. 11 at PageID.640). The question,
therefore, is whether Plaintiff satisfies the diagnostic description of intellectual disability and
possesses a valid IQ score between the specified range. With respect to this latter requirement, the
ALJ concluded that “the claimant does not have a valid verbal, performance, or full scale IQ of 60
through 70. . .” (PageID.43). This conclusion is not supported by substantial evidence.
On March 26, 2008, Plaintiff participated in a consultive examination conducted by
Neil Reilly, Limited Licensed Psychologist, and Dr. James Lozer, Licensed Psychologist.
(PageID.267-71). Plaintiff was diagnosed with “mood disorder NOS with mixed anxiety and
depression and anger management problems.” (PageID.271). As part of this examination, Plaintiff
participated in intelligence testing the results of which revealed that she possessed a verbal IQ of
67, a performance IQ of 74, and a full-scale IQ of 67. (PageID.270). Plaintiff’s performance placed
her “in the mild mentally retarded” range of functioning. (PageID.270). Reilly and Lozer concluded
that Plaintiff’s “effort on the testing was good, and the results obtained are considered valid.”
(PageID.270). The ALJ, however, concluded that these IQ test results were “not valid for Social

8

Security purposes.” (PageID.43). The reasons offered by the ALJ for this conclusion are not
supported by substantial evidence.
First, the ALJ concluded that Plaintiff’s level of functioning was inconsistent with
the IQ scores in question. (PageID.43). Specifically, the ALJ noted that Plaintiff “has had adaptive
functioning that has allowed her to raise three children, shop, cook, socialize, ride the bus, write
letters, use a computer, communicate on Facebook, complete a high school education (through a
special education program), attend Work First, attend a Goodwill training session, and earn
substantial gainful activity level earnings in 2011 as a babysitter.” (PageID.43). In support of this
conclusion, the ALJ cites to a December 8, 2013 function report completed by Plaintiff and the
results of a January 25, 2011 consultive examination. (PageID.43, 206-13, 293-98).
The ALJ has exaggerated Plaintiff’s level of functioning. The ALJ mischaracterized
the function report Plaintiff completed and ignored the contemporaneous report completed by
Plaintiff’s mother which suggests that Plaintiff’s ability to function was much more impaired than
the ALJ suggested. (PageID.194-201, 206-13). Likewise, the results of Plaintiff’s January 25, 2011
consultive examination do not suggest that Plaintiff is capable of functioning at the level suggested
by the ALJ. (PageID.293-98). Furthermore, the type of activities the ALJ identified are not
necessarily inconsistent with the IQ scores in question. See, e.g., Dragon v. Commissioner of Social
Security, 470 Fed. Appx. 454, 463 (6th Cir., Mar. 26, 2012) (activities such as parenting, graduating
high school, use of public transit, making change, doing laundry, cleaning, and limited reading
comprehension not necessarily inconsistent with an IQ below 70); Kaddo v. Commissioner of Social
Security, - - - F.Supp.3d - - -, 2017 WL 764612 at *5 (E.D. Mich., Feb. 28, 2017) (rejection of
claimant’s IQ scores, which ranged from 69-73, on ground that she was able to occasionally attend
classes at a community college was insufficient). Finally, the ALJ’s conclusion in this regard fails

9

to take into consideration Plaintiff’s psychiatric hospitalizations suggesting a diminished ability to
function. (PageID.303-33).
The ALJ next asserts that “the claimant’s school records make no mention of the
claimant having decreased intellectual functioning.” (PageID.43). This statement is quite puzzling
given that just two pages earlier the ALJ accurately noted that Plaintiff “received special education
services as an ‘educable, mentally impaired’ student.” (PageID.41). Plaintiff’s school records also
contain the results of intelligence testing, conducted in 2000, that indicate that Plaintiff possessed
a verbal IQ of 62, a performance IQ of 70, and a full scale IQ of 63. (PageID.596-97).
Lastly, the ALJ notes that following a January 25, 2011 consultive examination, Dr.
Lozer concluded that Plaintiff “appears to have an average IQ.” (PageID.295). This conclusion was
not based upon the results of any testing, unlike Dr. Lozer’s 2008 conclusion that Plaintiff suffered
from mild mental retardation. Dr. Lozer offered no explanation why his assessment of Plaintiff’s
IQ changed in just three years. Likewise, the ALJ offered no rationale for accepting the speculative
opinion that Plaintiff possesses an average IQ over the results of formal testing that Dr. Lozer
deemed to be an accurate and valid assessment of Plaintiff’s IQ. In sum, the ALJ’s rationale for
finding invalid Plaintiff’s 2008 IQ scores is not supported by substantial evidence. As for whether
Plaintiff satisfies the diagnostic description of intellectual disability, the ALJ does not appear to have
addressed that particular question.

II.

Remand is Appropriate
While the Court finds that the ALJ’s decision fails to comply with the relevant legal

standards, Plaintiff can be awarded benefits only if “all essential factual issues have been resolved”
and “the record adequately establishes [her] entitlement to benefits.” Faucher v. Secretary of Health
and Human Serv’s, 17 F.3d 171, 176 (6th Cir. 1994); see also, Brooks v. Commissioner of Social
10

Security, 531 Fed. Appx. 636, 644 (6th Cir., Aug. 6, 2013). This latter requirement is satisfied
“where the proof of disability is overwhelming or where proof of disability is strong and evidence
to the contrary is lacking.” Faucher, 17 F.3d at 176; see also, Brooks, 531 Fed. Appx. at 644.
Plaintiff bears the burden to demonstrate that her impairment meets a Listing. See
Kirby v. Comm’r of Soc. Sec., 2002 WL 1315617 at *1 (6th Cir., June 14, 2002). While the ALJ’s
decision is not supported by substantial evidence, Plaintiff has not carried her burden to establish
that she satisfies the requirements of Section 12.05(C) of the Listing of Impairments. Furthermore,
assessment of Plaintiff’s claim requires the resolution of factual disputes which this Court is neither
competent nor authorized to undertake in the first instance. Moreover, there does not exist
compelling evidence that Plaintiff is disabled. Accordingly, this matter must be remanded for
further administrative action.

CONCLUSION
For the reasons articulated herein, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. Accordingly, the Commissioner’s decision is vacated and the
matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
A judgment consistent with this opinion will enter.

Date: August 7, 2017

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

11