Polk v. Commissioner of Commissioner of Social Security Administration

Filing 20

Memorandum Opinion and Order affirming the Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli on 5/3/2013. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MALCOLM POLK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CASE NO. 3:12-CV-2352

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Malcolm Polk (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”),1
determining that he was no longer eligible for Supplemental Security Insurance, under
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”),
42 U.S.C. §§ 423, 1381(a), after having received such benefits based on his disability
as a child. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is
before the undersigned United States Magistrate Judge pursuant to the consent of the
parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth
below, the Commissioner’s final decision is AFFIRMED.
I.

PROCEDURAL HISTORY

Plaintiff received SSI benefits as a child based upon his mental retardation and
borderline intellectual functioning. (Transcript (“Tr.”) 19.) On December 18, 2009, after

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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. She is automatically substituted as the defendant in this
case pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

Plaintiff turned 18 years old, the agency determined that Plaintiff was no longer
disabled. (Tr. 13.) The determination was upheld on reconsideration, and Plaintiff
requested a hearing before an administrative law judge (“ALJ”). (Id.) On November 29,
2011, an ALJ conducted an administrative hearing. (Id.) Plaintiff and his mother
appeared and testified, as did an impartial vocational expert (“VE”). (Id.) On January
25, 2012, the ALJ determined that Plaintiff was not disabled. (Tr. 22.) Plaintiff
requested review, and on September 13, 2012, the Appeals Council declined to review
the ALJ’s decision, which became the final decision of the Commissioner. (Tr. 1.)
On September 17, 2012, Plaintiff filed a complaint2 requesting review of the
Commissioner’s final decision. (Doc. No. 4.) The parties have completed briefing in
this case. (Doc. Nos. 18, 19.) Plaintiff asserts that the ALJ erred in concluding that
Plaintiff does not meet the criteria for disability under Listing 12.05(C) of the Listing of
Impairments (“Listings”). The Commissioner responds that the ALJ correctly
determined that Plaintiff did not satisfy the criteria for disability under that Listing.
II.
A.

EVIDENCE

Personal and Vocational Evidence
Plaintiff completed high school, where he was in special education and job

training classes. (Tr. 186.)

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Plaintiff filed his complaint in the Southern District, which transferred it to
this Court because Plaintiff resides in Marion County, which is within this
Court’s geographical jurisdiction. (Doc. No. 2.)
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B.

Medical and Education Evidence
1.

Treating Providers, Instructors and School Records

On October 9, 2007, school psychologist Suzanne J. Fletcher, M.Ed, NCSP,
evaluated Plaintiff with respect to his individualized education plan (“IEP”). (Tr. 163-78.)
She noted that Plaintiff, who was then a senior in high school, received special
education services through the special education vocational training program. (Tr.
171.) He had earned a cumulative grade point average (“GPA”) of 2.94. (Id.) Testing
performed pursuant to the Weschler Adult Intelligence Scale (“WAIS”) revealed that
Plaintiff had a full scale IQ of 75, and was then functioning in the borderline range. (Tr.
172.) Plaintiff performed in the low to below average range on tests measuring his
basic academic skills. (Id.) Ms. Fletcher concluded that Plaintiff demonstrated deficits
in the following areas of adaptive behavior: home living, community use, self-direction
and functional academics. (Tr. 174.)
An August 2, 2009 report from Plaintiff’s family physician, Anne T. Lombardo,
D.O., noted that Plaintiff had a history of mild mental retardation and attention deficit
disorder. (Tr. 247.) She noted that Plaintiff had “troubles with [the] ability to think
clearly [and] make informed decisions.” (Id.)
2.

Agency Assessments and Reports

In a July 6, 2001 consultative examination, William E. Mohler, M.A., noted that
past assessments of Plaintiff, who was then ten years old, indicated that he had an IQ
in the “mildly retarded range.” (Tr. 240.) The Weshcler Intelligence Scale for Children
revealed that Plaintiff had a full scale IQ of 57, a verbal IQ of 59 and a performance IQ

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of 63, each of which fell into the “mildly retarded range.” (Tr. 241.) Mr. Mohler
diagnosed Plaintiff with attention deficit/hyperactivity disorder (“ADHD”) and mild metal
retardation. (Tr. 242.)
In an April 8, 2009 disability report, Plaintiff’s mother reported that Plaintiff was
working collecting carts for a grocery store. (Tr. 181.) She stated that, after Plaintiff
graduated from high school, she took him off of his medications. (Tr. 188.)
On November 18, 2009, agency consultant Deanna Jamison, M.A., examined
Plaintiff, who was then 19 years old and was accompanied by his father. (Tr. 289-92.)
Ms. Jamison noted that, in 2007, a school evaluation indicated that Plaintiff had an IQ
score in the borderline range. (Tr. 289.) Plaintiff reported that he worked pushing carts
and stocking at a grocery store, where he got along well with his coworkers and
supervisors. (Tr. 290.) He reported socializing with friends, and being able to cook,
clean and bathe and dress himself. (Id.)
Ms. Jamison administered the WAIS, which reflected that Plaintiff had a full
scale IQ of 71, a verbal IQ of 71, and a performance IQ of 73, all of which were in the
borderline range of intelligence. (Id.) With respect to Plaintiff’s daily functioning, Ms.
Jamison assigned Plaintiff low adaptive levels in communication, daily living skills and
socialization, resulting in an overall adaptive behavior composite score of low. (Tr.
291.) However, Ms. Jamison noted that there “were some contradictions” between
Plaintiff’s description of his daily functioning and the information provided by Plaintiff’s
father. (Id.) Accordingly, she noted that her results with respect to Plaintiff’s daily
functioning “should be interpreted with caution.” (Tr. 290.) Ms. Jamison diagnosed
Plaintiff with borderline intellectual functioning. (Tr. 291.) She opined that he was able
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to: understand, retain and follow simple instructions; sustain attention to perform
simple, repetitive tasks; and tolerate the stress and pressure of daily work activities in a
repetitive, labor-type job. (Tr. 291.)
On December 8, 2009, agency consultant John J. Parsley, Psy. D., performed a
mental residual functional capacity (“RFC”) assessment and psychiatric review
technique. (Tr. 294-96, 298-311.) In Section I of his mental RFC assessment, Dr.
Parsley assigned Plaintiff moderate limitations in the ability to: understand and
remember detailed instructions; carry out detailed instructions; travel in unfamiliar
places or use public transportation; and set realistic goals or make plans independently
of others. (Tr. 294-95.) In Section III of the assessment, Dr. Parsley opined that
Plaintiff was capable of: understanding and remembering short, simple, one-to-three
step instructions; maintaining attention and concentration for two hour periods in order
to carry out short, simple, routine tasks; interacting appropriately with supervisors and
coworkers in a work setting; and functioning in a stable work setting. (Tr. 296.) Dr.
Parsley noted that Plaintiff would be slow to adapt to change and would struggle with
planning independently for tasks. (Id.)
In his psychiatric review technique, Dr. Parsley diagnosed Plaintiff with borderline
intellectual functioning, and assigned Plaintiff: mild limitations in activities of daily living
and maintaining social functioning; and moderate limitations in maintaining
concentration, persistence and pace. (Tr. 308.) He noted that, in an October 2007
assessment, Plaintiff attained a full scale IQ score of 75. (Tr. 310.)

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C.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

At his November 29, 2011 administrative hearing, Plaintiff testified as follows:
Plaintiff did not have a driver’s license. (Tr. 50.) He attended a few regular
classes in high school, but his curriculum was mostly special education. (Tr. 52.) He
had collected carts and stocked shelves at a Giant Eagle supermarket, but could not
recall how long he worked there. (Tr. 53.) His grandparents drove him back and forth
to work. (Tr. 54.) Plaintiff agreed that he had done “pretty well” at Giant Eagle. (Tr.
77.)
Plaintiff felt that his attention span kept him from being able to work. (Tr. 56.)
However, he had never had problems with attention during his work at Giant Eagle. (Tr.
56-57.) Plaintiff enjoyed reading, but could not remember the title of the last book he
read. (Tr. 57.) He read magazines about sports and automobiles, and felt that he
could follow and understand the articles. (Tr. 57-58.) Plaintiff had an e-mail account
and was able to use it. (Tr. 58.) He cooked bacon and eggs for breakfast. (Tr. 59-60.)
Plaintiff was “pretty much like a people person” and “like[d] communicating.” (Tr.
59.) He lived with his mother, and helped out around the house. (Id.) He enjoyed
playing basketball and learning karate. (Tr. 59-60.) Plaintiff did not go to the grocery
store by himself, but he did buy games on his own at a video game store. (Tr. 61-62.)
Plaintiff attended church, and had participated in a “man’s mentoring meeting” in North
Carolina. (Tr. 89.)

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2.

Plaintiff’s Mother’s Testimony

Plaintiff’s mother, Jacqueline Polk, testified as follows:
At Giant Eagle, “the little ladies looked out for” Plaintiff. (Tr. 66.) A family friend
hired Plaintiff to work at the grocery store. (Id.) Plaintiff had “a wonderful personality,”
and “got pretty good little tips from . . . the people.” (Tr. 67.) Ms. Polk felt that Plaintiff
was depressed after returning to Ohio from North Carolina, where he had lived with his
father. (Id.) She felt that Plaintiff was forgetful, noting that he had taken the test to
obtain his temporary drivers license five times without passing. (Id.) Plaintiff would
forget to close the door when she asked him to do so. (Tr. 68-69.) Ms. Polk was trying
to get Plaintiff a job at McDonalds, but was not certain how he would perform. (Tr. 69.)
She gave him an electric guitar to give him something to do other than watch television.
(Tr. 72.) She allowed him to cook breakfast because “he stays focused, he stays right
there at the stove.” (Tr. 67.)
3.

Vocational Expert’s Hearing Testimony

The ALJ described the following hypothetical individual of Plaintiff’s age,
education and work history:
[A]ssume such an individual did not have any exertional
limitations on the ability to sit, stand, walk, lift, but had nonexertional limitations that . . . would require the individual . . .
to avoid work place hazards such as climbing ladders,
scaffold and working around hazardous machinery. The
individual could occasionally balance. [T]he individual would
be limited to simple, routine tasks, tasks that do not change
throughout the work day. [W]ork that would not be
considered fast paced or have strict production quotas and
. . . the individual should not be required to plan
independently to perform those tasks.

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(Tr. 82-83.) The VE opined that the hypothetical individual would not be able to perform
Plaintiff’s past work, because the position required him to work around moving vehicles,
which was precluded by the restriction prohibiting work around dangerous machinery.
(Tr. 83.) The VE testified that the hypothetical individual could perform work as a
machine tender, cleaner or hand packager, and noted that there were “many other[]”
jobs available to the hypothetical individual. (Tr. 84-85.)
III.

STANDARD FOR DISABILITY

A claimant is entitled to receive benefits under the Social Security Act when he
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when he cannot perform “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.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
that he is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that he suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905

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F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
416.920(d). Fourth, if the claimant’s impairment does not prevent him from doing his
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent him from doing his past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.

SUMMARY OF COMMISSIONER’S DECISION

In his January 25, 2012 decision, the ALJ made the following findings of fact and
conclusions of law:
1.

Plaintiff attained the age of 18 on September 7, 2008, and was
eligible for SSI benefits as child for the month preceding the month
in which he attained age 18. Plaintiff was notified that he was found
no longer disabled as of December 1, 2009, based on a
redetermination of disability under the rules for adults who file new
applications.

2.

Since December 1, 2009, Plaintiff has had the following severe
impairments: borderline intellectual functioning and ADHD.

3.

Since December 1, 2009, Plaintiff did not have an impairment or
combination of impairments that meets or medically equals one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

4.

Plaintiff has the RFC to perform a full range of work at all exertional
levels but with the following nonexertional limitations: he could
occasionally balance and must avoid normal workplace hazards. He
is limited to simple, routine tasks that do not change throughout the
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workday, work that is not fast paced or has strict production quotas.
He should not be required to plan independently.
5.

Plaintiff has no past relevant work.

6.

Plaintiff was born on September 8, 1990 and is a younger individual
age 18-49.

7.

Plaintiff has at least a high school education and is able to
communicate in English.

* * *
9.

Since December 1, 2009, considering Plaintiff’s age, education, work
experience, and RFC, there are jobs that exist in the national
economy that Plaintiff can perform.

10.

Plaintiff’s disability ended on December 1. 2009, and Plaintiff has not
become disabled again since that date.

(Tr. 15-21.)
V.
A.

LAW & ANALYSIS

Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether

the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.

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1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.

Plaintiff’s Assignments of Error
Plaintiff argues that the ALJ erred: (1) in assessing whether Plaintiff satisfied the

requirements of Listing 12.05(C); and (2) by failing to consider whether Plaintiff’s
impairments medically equaled the requirements of Listing 12.05(C). The
Commissioner contends that the ALJ did not err with respect to Listing 12.05(C). This
Court considers each argument in turn.
1.

Whether Plaintiff Satisfied the Requirements of Listing 12.05(C)

Listing 12.05 sets forth the requirements for finding disability resulting from
“mental retardation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. In it’s first
paragraph, Listing 12.05 provides the diagnostic description of the impairment:
Mental retardation 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.

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The required level of severity for this disorder is met when
the requirements in A, B, C, or D are satisfied.
Id. In other words, in order to satisfy the requirements of the Listing, an individual must,
first, demonstrate the onset of the deficits described in the diagnostic description prior
to age 22, and, second, satisfy the requirements of any one of the four subsections.
See Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 676 (6th Cir. 2009) (noting that
an IQ below 70 was not sufficient on its own to satisfy Listing 12.05, as the claimant
must “still satisfy the three-prong definition of mental retardation” and one of the
subsections).
As relevant to this case, an individual may satisfy the requirement of subsection
(C) by demonstrating “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.” Id. In other words, subsection (C) sets forth two requirements:
(1) an IQ requirement; and (2) a significant limitation requirement.
Here, the ALJ determined that Plaintiff did not satisfy the requirements of
subsection (C):
In terms of requirements in paragraph C, they are not met
because [Plaintiff] does not have a valid verbal, perform, or
full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant workrelated limitation of function.
(Tr. 16.) Plaintiff argues that the ALJ’s error in making this determination is two-fold.
First, Plaintiff argues that the ALJ erred in concluding that Plaintiff could not meet the
significant limitation requirement. Second, Plaintiff notes that the record contains IQ
test results placing Plaintiff in the range required by subsection (C). The Government
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responds that, even if Plaintiff could satisfy the requirements of subsection (C),
substantial evidence supports the ALJ’s conclusion that Plaintiff failed to satisfy the
requirements of the diagnostic description set forth in the first paragraph of Listing
12.05.
The Government is correct. In his decision, the ALJ noted that, according to the
Diagnostic and Statistical Manual of Mental Disorders (4th Ed. Rev. 1994), “adaptive
deficits are significant limitations in adaptive functioning in at least two of the following
skill areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health,
and safety.” (Tr. 19, n.1.) The ALJ determined that Plaintiff had offered no evidence of
the deficits in adaptive functioning required by the diagnostic description of Listing
12.05:
The evidence does not document concurrent deficits or
impairments in present adaptive functioning as required for a
diagnosis of mild mental retardation. [Plaintiff] has only a
mild restriction of activities of daily living, mild difficulties in
maintaining social functioning, moderate difficulties in
maintaining concentration, persistence or pace, and no
repeated episodes of decompensation. There is no
evidence that he cannot get along appropriately with
neighbors, public agencies, co-workers, supervisors, and
authority in general. He worked at a grocery store and
reported no problems with co-workers and supervisors. [He]
has never been fired from a job or asked to leave due to
mental limitations. Although [Plaintiff’s] mother stated that
[Plaintiff] was able to work because others helped him out,
there is no documentation to support this claim.
(Tr. 19.)
Plaintiff challenges neither the ALJ’s definition of “adaptive deficits” nor his
conclusion that Plaintiff failed to demonstrate the deficits necessary to satisfy the
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threshold requirement of Listing 12.05. Further, substantial evidence in the record
supports the ALJ’s conclusion on this issue, as the record reflects that Plaintiff was able
to interact with others at work and at church, care for himself, cook breakfast, work at a
grocery store, and engage in hobbies such as reading magazines and playing video
games. Although an agency consultant assigned Plaintiff a “low” score with respect to
adaptive behaviors, she also noted that Plaintiff and his father had contradicted one
another with respect to Plaintiff’s abilities and, as a result, recommended that her
results be interpreted “with caution.” (Tr. 290-91.) Accordingly, even if Plaintiff could
satisfy the requirements of subsection (C), substantial evidence supports the conclusion
that he does not satisfy the diagnostic description of Listing 12.05, and, thus, is not
entitled to remand on this issue.
2.

Whether Plaintiff’s Condition Equaled Listing 12.05(C)

The regulations require an ALJ, at step three, to determine whether a claimant
has “an impairment(s) that meets or equals” one of the Listings. 20 C.F.R.
§ 404.1520(a)(4)(iii). Here, Plaintiff argues that the ALJ erred in failing to consider
whether Plaintiff’s impairments medically equaled Listing 12.05(C) under 20 C.F.R.
§ 404.1526(b)(1), which sets forth the following standard for medical equivalence:
(i) If you have an impairment that is described in (the
Listings), but -(A) You do not exhibit one or more of the findings
specified in the particular listing, or
(B) You exhibit all of the findings, but one or more of
the findings is not as severe as specified in the
particular listing,
(ii) we will find that your impairment is medically equivalent
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to that listing if you have other findings related to your
impairment that are at least of equal significance to the
required criteria.
Plaintiff argues that his ADHD caused him “significant concentrational limitations” that,
in combination with a full scale IQ score of 71, equal Listing 12.05(C) because his
difficulty concentrating results in significant work-related limitations. (Plaintiff’s Brief
(“Pl. Br.”) at 10.) The Commissioner responds that the ALJ did consider whether
Plaintiff’s impairments medically equaled one of the Listings, and argues that
substantial evidence supports the ALJ’s conclusion on this issue.
The Commissioner is correct. In his findings of fact and conclusions of law, the
ALJ specifically determined that, “[s]ince December 1, 2009, [Plaintiff] did not have an
impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments . . . .” (Tr. 15) (emphasis added). Further, substantial
evidence supports the conclusion that Plaintiff’s ADHD was not sufficiently severe to
equal the significant limitations requirement of subsection (C). Although Plaintiff had
been diagnosed with ADHD, he testified that his difficulties in concentration did not
interfere with his work at Giant Eagle. (Tr. 56-57.) Plaintiff points to no specific
evidence in the record to support his argument that his ADHD caused him
concentration difficulties equivalent to the significant limitation required by subsection
(C). Accordingly, Plaintiff’s argument on this point lacks merit.

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VI.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: May 3, 2012

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