Isenhart v. Commissioner of Social Security Administration

Filing 17

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 8/25/17. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RALPH ISENHART,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)
)

CASE NO. 1:16CV1792
MAGISTRATE JUDGE
GEORGE J. LIMBERT

MEMORANDUM OPINION
AND ORDER

Plaintiff Ralph Isenhart (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of Social Security Administration (“Defendant”) denying his application for
Supplemental Security Income (“SSI”). ECF Dkt. #1. In his brief on the merits, filed on
November 21, 2016, Plaintiff asks the Court to review whether the administrative law judge
(“ALJ”): (1) violated the treating physician rule; and (2) erred in the determination that he did
not meet Listing 12.05C. ECF Dkt. #14 at 9-14. On January 20, 2017, Defendant filed a
response brief. ECF Dkt. #16. Plaintiff did not file a reply brief.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.

1

On January 23, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.

I.

PROCEDURAL HISTORY
Plaintiff filed his application for SSI in August 2011. ECF Dkt. #10 (“Tr.”) at 363.2 In

his application, Plaintiff alleged disability beginning on February 1, 2011. Id. This claim was
denied initially in May 2013 after the ALJ held hearings in November 2012 and December 2012.
Id. at 80, 133, 200. Plaintiff requested review of the decision by the Appeals Council, and in
September 2014, the Appeals Council remanded the application to the ALJ for further
administrative proceedings. Id. at 220. In March 2015, Plaintiff appeared for a hearing before
the ALJ. Id. at 44. On April 30, 2015, the ALJ denied Plaintiff’s application for SSI. Id. at 20.
Subsequently, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision.
Id. at 1. Accordingly, the decision issued by the ALJ on April 30, 2015, stands as the final
decision.
On July 14, 2016, Plaintiff filed the instant suit seeking review of the ALJ’s decision.
ECF Dkt. #1. Plaintiff filed a brief on the merits on November 21, 2016. ECF Dkt. #14.
Defendant filed a response brief on January 20, 2017. ECF Dkt. #16. Plaintiff did not file a
reply brief.
II.

SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
In the decision issued on April 30, 2015, the ALJ found that Plaintiff had not engaged in

substantial gainful activity since August 10, 2011, the date of his application for SSI. Tr. at 25.
Continuing, the ALJ determined that Plaintiff had the following severe impairments: coronary
artery disease; asthma; hypertension; depression; and borderline intellectual functioning. Id.
The ALJ stated that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. Id. When making this determination, and when addressing Listing 12.05, the

2

All citations to the Transcript refer to the page numbers assigned when the Transcript was filed as
a .PDF, rather that the page numbers assigned by the CM/ECF system. When the Transcript was filed the
.PDF included an index, with the indexed pages differentiated from the numerical pages. Accordingly, the
page number assigned in the .PDF mirrors the page number printed on each page of the Transcript, rather than
the page number assigned when the Transcript was filed in the CM/ECF system.

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ALJ discussed Plaintiff’s: activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.3 Id. at 26-27.
The ALJ found that Plaintiff had mild restriction in his activities of daily living. Tr. at
26. Continuing, the ALJ stated that a function report completed in September 2011 indicated
that Plaintiff reported that he cared for his personal needs, prepared simple meals, did laundry or
chores, and performed his own shopping. Id. The ALJ next noted that at the hearing held in
December 2012, Plaintiff stated that he cooked in a crock-pot, kept his house clean, and watched
television. Id. Additionally, the ALJ indicated that Plaintiff reported that he performed his own
grocery shopping at the March 2015 hearing. Id.
Regarding social functioning, the ALJ determined that Plaintiff had moderate difficulties.
Tr. at 26. The ALJ noted that Plaintiff testified that a friend took him to the hearing held in
March 2015, and that a friend found him a job at a big-box store. Id. Continuing, the ALJ stated
that Plaintiff also testified that he visited his son, daughter-in-law, niece, and nephew, and
indicated in the functional report that he enjoyed playing with his grandchildren. Id. The ALJ
also noted that Plaintiff testified that he did not like being around others and that he went grocery
shopping at night when there are fewer people at the grocery store. Id. Additionally, the ALJ
indicated that a consultative examiner, Deborah Koricke, Ph.D., noted that Plaintiff
demonstrated difficulty relating to others at the examination, and stated that he was somewhat
depressed and difficult to engage because he put forth minimal effort. Id.
Moving on to concentration, persistence, or pace, the ALJ found that Plaintiff had
moderate difficulties. Tr. at 27. The ALJ cited another consultative examiner, Andrea Johnson,
Psy.D., who concluded that Plaintiff’s ability to maintain attention, concentration, persistence,
and/or pace was moderately impaired. Id. Continuing, the ALJ stated that Dr. Johnson felt that
Plaintiff’s ability to withstand stress and the pressures associated with day-to-day work activity
was moderately impaired. Id. The ALJ also indicated that Dr. Koricke noted that Plaintiff’s

3

The ALJ also discussed Listing 12.04, however, there is no need to address Listing 12.04 herein as
the only listing Plaintiff takes issue with is Listing 12.05C.

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level of attention and concentration throughout the examination was adequate, but he put forth
minimal effort and refused to persist. Id. Additionally, the ALJ indicated that Dr. Koricke stated
that Plaintiff’s work pace was within normal limits. Id. The ALJ also found that Plaintiff did
not experience any episodes of decompensation of extended duration. Id.
Continuing, the ALJ determined that Plaintiff did not have a mental incapacity evidenced
by dependence upon others for his personal needs, as he was able to care for himself and follow
directions (as evidenced by his ability to take standardized tests). Tr. at 27. Further, the ALJ
stated that Plaintiff did not have a “valid verbal, performance, or full-scale IQ of sixty through
seventy and a physical or other mental impairment imposing an additional and significant workrelated limitation of a function.” Id. at 28. For these reasons, that ALJ found that Plaintiff did
not meet the criteria of Listing 12.05C.
After consideration of the record, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b), except that he
could: never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally
crawl; frequently kneel and crouch; and constantly balance or stoop. Tr. at 28. The ALJ also
found that Plaintiff must avoid jobs that involved concentrated exposure to extreme cold, heat,
humidity, and/or respiratory irritants. Id. Continuing, the ALJ stated that Plaintiff was limited to
unskilled work where he could understand, remember, and carry out instructions, and work in a
simple routine-type work environment without strict time or fast paced performance demands
(noting that goal-oriented type work was acceptable). Id. The ALJ also found that Plaintiff
could frequently work with others on a superficial basis, defined as speaking or signaling to take
instructions, carry out instructions, ask questions, and serve. Id. In addition, the ALJ noted that
Plaintiff could not collaborate with, mentor, or be responsible for the safety of others. Id.
After explaining the RFC finding, the ALJ stated that Plaintiff was unable to perform any
past relevant work. Tr. at 33. The ALJ indicated that Plaintiff was a younger individual on the
date the application was filed, and subsequently changed age category to closely approaching
advanced age. Id. at 34. Continuing, the ALJ stated that Plaintiff had a marginal education, was
able to communicate in English, and that the transferability of job skills was not an issue because
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Plaintiff’s past relevant work was unskilled. Id. Considering Plaintiff’s age, education, work
experience, and RFC, that ALJ determined that jobs existed in significant numbers in the
national economy that Plaintiff could perform. Id. For these reasons, the ALJ found that
Plaintiff had not been under a disability, as defined in the Social Security Act, since August 10,
2011, the date his application for SSI was filed. Id. at 35.
III.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

social security benefits. These steps are:
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) and 416.920(b) (1992));

2.

An individual who does not have a “severe impairment” will not be found
to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));

3.

If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));

4.

If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));

5.

If an individual’s impairment is so severe as to preclude the performance
of the kind of work he or she has done in the past, 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) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and

makes a determination of disability. This Court’s review of such a determination is limited in
scope by §205 of the Act, which states that the “findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g).
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Therefore, this Court’s scope of review is limited to determining whether substantial evidence
supports the findings of the Commissioner and whether the Commissioner applied the correct
legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937 (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal citation omitted). Substantial evidence is defined as
“more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ’s
denial of benefits, that finding must be affirmed, even if a preponderance of the evidence exists
in the record upon which the ALJ could have found plaintiff disabled. The substantial evidence
standard creates a “‘zone of choice’ within which [an ALJ] can act without the fear of court
interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). However, an ALJ’s failure to
follow agency rules and regulations “denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.” Cole, supra (citing Blakely v.
Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)) (internal citations omitted).
V.

ANALYSIS
A.

Treating Physician Rule

Plaintiff first asserts that the ALJ violated the treating physician rule and erred in the
determination of Plaintiff’s RFC. ECF Dkt. #14 at 9-12. An ALJ must give controlling weight
to the opinion of a treating source if the ALJ finds that the opinion is well-supported by
medically acceptable clinical and diagnostic techniques and not inconsistent with the other
substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). If an ALJ decides to discount or reject a treating physician’s opinion, he or she must
provide “good reasons” for doing so. Social Security Rule (“SSR”) 96-2p. The ALJ must
provide reasons that are “sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Id. This allows a claimant to understand how his case is determined, especially when
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he knows that his treating physician has deemed him disabled and he may therefore “be
bewildered when told by an administrative bureaucracy that he is not, unless some reason for the
agency’s decision is supplied.” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999)). Further, it “ensures that the ALJ applies the treating physician rule and
permits meaningful appellate review of the ALJ’s application of the rule.” Id. If an ALJ fails to
explain why he or she rejected or discounted the opinions and how those reasons affected the
weight afforded to the opinions, this Court must find that substantial evidence is lacking, “even
where the conclusion of the ALJ may be justified based upon the record.” Rogers, 486 F.3d at
243 (citing Wilson, 378 F.3d at 544).
The Sixth Circuit has noted that, “while it is true that a lack of compatibility with other
record evidence is germane to the weight of a treating physician’s opinion, an ALJ cannot simply
invoke the criteria set forth in the regulations if doing so would not be ‘sufficiently specific’ to
meet the goals of the ‘good reason’ rule.” Friend v. Comm’r of Soc. Sec., 375 Fed.Appx. 543,
551 (6th Cir. 2010). The Sixth Circuit has held that an ALJ’s failure to identify the reasons for
discounting opinions, “and for explaining precisely how those reasons affected the weight” given
“denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.” Parks v. Social Sec. Admin., 413 Fed.Appx. 856, 864 (6th Cir. 2011)
(quoting Rogers, 486 F.3d at 243 ). However, an ALJ need not discuss every piece of evidence
in the administrative record so long as he or she considers all of a claimant’s medically
determinable impairments and the opinion is supported by substantial evidence. See 20 C.F.R. §
404.1545(a)(2); see also Thacker v. Comm'r of Soc. Sec., 99 Fed.Appx. 661, 665 (6th Cir. 2004).
Substantial evidence can be “less than a preponderance,” but must be adequate for a reasonable
mind to accept the ALJ’s conclusion. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.
2010) (citation omitted).

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Specifically, Plaintiff asserts that the ALJ failed to offer good reasons for the decision to
discount the opinions of his treating physician, Nadim Al-Mubarak, M.D.4 ECF Dkt. #14 at 10.
Plaintiff recognizes that Dr. Al-Mubarak’s opinions stating that he was disabled due to his
cardiac condition were not binding on the Social Security Administration, but avers that the ALJ
was still required to consider Dr. Al-Mubarak’s opinions. Id. Continuing, Plaintiff claims that
the ALJ failed to cite any evidence to support the conclusion that Dr. Al-Mubarak’s opinions
were “inconsistent with the overall evidence of the record, including his treatment notes, which
indicate that [Plaintiff] is stable from a cardiac standpoint.” Id. at 10-11 (citing Tr. at 33).
According to Plaintiff, the exhibit cited by the ALJ was merely a letter that set forth the reasons
Dr. Al-Mubarak believed that he was unable work. Id. at 11.
Next, Plaintiff argues that even assuming that the ALJ cited the wrong exhibit when
discounting Dr. Al-Mubarak’s opinions, the decision was still improper because this single letter,
which the ALJ cited when stating that the evidence showed Plaintiff’s cardiac condition was
stable, was outweighed by the rest of the medical records. ECF Dkt. #14 at 11. Plaintiff
contends that the record contains evidence of countless visits to the emergency room, multiple
surgical procedures, and other various treatments and testing. Id. Further, Plaintiff argues that
the ALJ erred in discounting Dr. Al-Mubarak’s opinions in favor of the opinions submitted by
the physicians from the Social Security Administration despite the relationship between Dr. AlMubarak and Plaintiff. Id. at 12.
Defendant asserts that the ALJ articulated “good reasons” for assigning less weight to the
opinions of Dr. Al-Mubarak. ECF Dkt. #16 at 13. Continuing, Defendant states that the ALJ
acknowledged Plaintiff’s history of cardiac difficulties, but that the ALJ and Dr. Al-Mubarak
also indicated that he had issues regarding compliance with his medication regimen. Id.
Defendant also states that the ALJ observed that Plaintiff’s condition remained stable with
treatment. Id. at 14-15. Further, Defendant claims that the ALJ also considered how Dr. AlMubarak’s opinions were inconsistent with the other medical opinion in the record, and correctly
4

Plaintiff refers to Dr. Al-Mubarak as “Dr. El-Mubarak” throughout the majority of his brief. See
ECF Dkt. #14.

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recognized that the opinions submitted by the state agency reviewing physicians were consistent
with the clinical findings. Id. at 16.
Plaintiff’s arguments are without merit. The main argument put forth by Plaintiff is that
the ALJ did not cite any evidence supporting the conclusion that Dr. Al-Mubarak’s opinions
were inconsistent with the overall evidence of the record, including Dr. Al-Mubarak’s treatment
notes. See ECF Dkt. #14 at 10. In the decision, the ALJ indicated that Dr. Al-Mubarak’s
treatment records noted that Plaintiff’s angina was stable and that he was asymptomatic from a
cardiac standpoint, citing several of Dr. Al-Mubarak’s treatment notes. Tr. at 29 (citing Tr. at
1075, 1087, 1096). Further, the ALJ stated that Plaintiff underwent lower extremity Doppler
testing performed by Dr. Al-Mubarak in December 2013, which showed normal results. Id.
(citing Tr. at 1089).
When addressing the weight assigned to Dr. Al-Mubarak’s opinions, the ALJ stated that
the opinions were “inconsistent with the overall evidence of record, including [Dr. AlMubarak’s] treatment notes, which indicate that [Plaintiff] is stable from a cardiac standpoint.”
Tr. at 33. While Plaintiff is correct is stating that the ALJ only cited to Exhibit 10F, a letter from
Dr. Al-Mubarak opining that Plaintiff was unable to work, after making the above statement, the
ALJ also expressly stated that she was considering Dr. Al-Mubarak’s treatment notes when
making this finding. See id. It is apparent from the decision that the ALJ was referencing back
to Dr. Al-Mubarak’s treatment notes that were discussed earlier in the decision. The ALJ was
not required to reiterate Dr. Al-Mubarak’s treatment notes in the paragraph addressing the
weight assigned to Dr. Al-Mubarak’s opinions, and Plaintiff cites no law or regulation imposing
such a requirement.
Dr. Al-Mubarak’s treatment notes are inconsistent with his opinions. For example,
treatment notes from September 2011, January 2012, August 2012, February 2013, August 2013,
December 2013, June 2014, and October 2014 indicate that Plaintiff denied chest pain or was
doing fairly well from a cardiac point of view. Tr. at 786, 791, 1075-77, 1081, 1085, 1094.
These treatment notes are inconsistent with Dr. Al-Mubarak’s opinions indicating that Plaintiff
was unable to perform work activities. Further, Dr. Al-Mubarak’s opinions were submitted in
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August 2011 and October 2011, prior to all but one of the treatment notes cited above. The fact
that Dr. Al-Mubarak’s treatment notes, prepared in the months and years after the opinions were
submitted, reflected fairly mild cardiac impairments indicates that Dr. Al-Mubarak’s opinions
were not an entirely accurate representation of Plaintiff’s impairments. For this same reason, the
ALJ did not error when assigning more weight to the opinions submitted by the state agency
reviewing physicians than the opinions submitted by Dr. Al-Mubarak. Since the ALJ provided
“good reasons” for discounting the opinions of Dr. Al-Mubarak, namely that the opinions were
inconsistent with the treatment notes, the ALJ did not violate the treating physician rule.
B.

Listing 12.05C

Plaintiff also asserts that the ALJ erred in determining that he did not meet requirements
of Listing 12.05C despite an IQ score of 70 and significant physical impairments. ECF Dkt. #14
at 12. Continuing, Plaintiff cites 20 C.F.R. Part 404, Subpart P, Appendix 1, stating that Listing
12.05C required that he establish:
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.
Plaintiff argues that the reasons provided by the ALJ for finding that he did not meet Listing
12.05C are invalid.
When determining that Plaintiff did not meet the requirements of Listing 12.05C, the ALJ
indicated that he: lived independently; held a driver’s license; performed full-time work as a cutoff saw operator in 1996; was married three times; and, prior to age 22, worked as a helper to his
father and painted windows. Tr. at 30. Additionally, the ALJ stated that Dr. Koricke indicated
that Plaintiff did not appear to have an IQ of 70 and concluded that Plaintiff had low average to
average intelligence, and that medical records from the Charak Center noted average
intelligence. Id. (citing Tr. at 689, 1177).
20 C.F.R. Part 404, Subpart P, Appendix 1, reads, in relevant part:

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Intellectual disability refers to significantly sub-average general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports the onset of
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.
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.

Plaintiff has failed to establish an intellectual disability sufficient to satisfy Listing 12.05C. For
the reasons set forth by the ALJ, Plaintiff is unable to show that he suffers from significantly
sub-average general intellectual functioning with deficits in adaptive functioning initially
manifested prior to age twenty-two. “Adaptive functioning includes a claimant’s effectiveness
in areas such as social skills, communication, and daily living skills.” West v. Comm’r of Soc.
Sec., 240 Fed.Appx. 692, 698 (6th Cir. 2007). As stated by the ALJ, the evidence shows that
Plaintiff had mild restrictions in his activities of daily living as he: cared for his personal needs;
prepared simple meals; washed laundry and performed chores; performed his own shopping;
kept the house clean; and watched television. Tr. at 26. Further, the ALJ indicated that Plaintiff
had only moderate difficulties in social functioning, and that he: traveled to the March 2015
hearing with a friend; got his job at the big-box store through a friend; and spent time with his
family. Id. Likewise, the ALJ found only moderate difficulties in regarding Plaintiff’s
concentration, persistence, or pace, citing the medical opinions of Dr. Johnson and Dr. Koricke.
Id. at 27.
Beyond Plaintiff’s activities of daily living, social functioning, and concentration,
persistence, or pace, the ALJ also cited additional reasons for finding that Plaintiff did not meet
Listing 12.05C, namely, as stated above, that Plaintiff: lived independently; held a driver’s
license; performed full-time work as a cut-off saw operator in 1996; was married three times;
and, prior to age 22, worked as a helper to his father and painted windows. Tr. at 30. As the
ALJ found that Plaintiff did not exhibit marked limitations in his activities of daily living, social
functioning, and/or concentration, persistence, or pace, and also provided additional factors
considered at this step of the decision, substantial evidence supports the ALJ’s conclusion that
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Plaintiff did not experience deficiencies in adaptive functioning that imposed significant workrelated limitations. See West, 240 Fed.Appx. at 698.
Moreover, Plaintiff was diagnosed with borderline intellectual functioning, rather than an
intellectual disability, which is probative for a Listing 12.05C determination. See Peterson v.
Comm’r of Soc. Sec., 552 Fed.Appx. 533, 539 (6th Cir. 2014).5 Here, Plaintiff bears the burden
of proving that his condition meets or equals Listing 12.05C. See Foster v. Halter, 279 F.3d
348, 357 (6th Cir 2001). Plaintiff has failed to meet his burden, and substantial evidence supports
the ALJ’s decision that Plaintiff did not qualify for benefits under Listing 12.05C.
VI.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ and dismisses the

instant case in its entirety with prejudice.

Date: August 25, 2017

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

5

In Peterson, the Sixth Circuit stated that the absence of a diagnosis of mild mental retardation, and
the presence of diagnoses of borderline intellectual functioning, was probative for a Listing 12.05C
determination. 552 Fed.Appx. at 539. On August 1, 2013, Listing 12.05 was amended to replace the words
“mental retardation” with “intellectual disability.” See 78 F. Reg. 46,599, 46,501 (codified at 20 C.F.R. Part
404, Subpart P, Appendix 1). This amendment did not change the medical definition of the disorder. Id. at
46,500.

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