Brunner v. Commissioner of Social Security
Memorandum Opinion and Order affirming Commissioner's decision. Magistrate Judge James R. Knepp, II on 9/21/15. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case 3:14 CV 1880
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff Cynthia Brunner filed a Complaint against the Commissioner of Social Security
seeking judicial review of the Commissioner’s decision to deny disability insurance benefits
(“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. § 405(g). The parties have
consented to the exercise of jurisdiction by the undersigned in accordance with 28 U.S.C §
636(c) and Civil Rule 73. For the reasons stated below, the undersigned affirms the
Commissioner’s decision to deny benefits.
Plaintiff filed for DIB on June 16, 2011 alleging an onset date of March 4, 1988. (Tr. 62).
Plaintiff applied for benefits due to Attention Deficit Disorder (“ADD”), Attention DeficitHyperactivity Disorder (“ADHD”), depression, broken tailbone, lower left leg pain, and
migraine headaches. (Tr. 62). Her claim was denied initially and upon reconsideration. (Tr. 6274, 76-88). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr.
111). Plaintiff, represented by counsel, and a vocational expert (“VE”) testified at a hearing
before the ALJ on February 6, 2013, after which the ALJ found Plaintiff not disabled. (Tr. 13-
25). The Appeals Council denied Plaintiff’s request for review, making the hearing decision the
final decision of the Commissioner. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981. Plaintiff filed the
instant action on August 25, 2014. (Doc. 1).
Personal Background and Testimony
Plaintiff was born March 4, 1984 and was 27 years old at the time of her application. (Tr.
61). She was married at the time of the hearing but they lived at separate homeless shelters; she
took the bus to hearing because her driver’s license was suspended due to issues with child
support. (Tr. 38). Plaintiff graduated from high school with the assistance of special education
courses and had held numerous part time jobs but rarely for more than a few months at a time.
(Tr. 39-41). Plaintiff claimed she was fired from many of these jobs because she was unable to
keep up with the pace of the work environment. (Tr. 51).
She complained of pain from a broken tailbone when she stood or sat for too long, pain in
her right elbow following a recent surgery, and leg cramps every other day. (Tr. 42, 45). She also
testified she had depression, anxiety, and bipolar and schizoaffective disorders. (Tr. 43). She
heard voices and had visions, which had recently been getting worse, crying spells, mood
changes, and anxiety in crowds. (Tr. 43). She reported sleepiness and nausea from her
medications and although they were somewhat effective at controlling her symptoms, she had
just received increased doses. (Tr. 45-46). Plaintiff also stated she needed her husband to remind
her to take her medications. (Tr. 45, 232).
She could follow simple instructions to operate a microwave, do the dishes, perform her
personal hygiene, and use the computer at the library but she could not do laundry, manage a
checking or savings accounts, or grocery shop on her own. (Tr. 46-49, 230-33). She estimated
she could only sit or stand for approximately twenty minutes at a time before having to move
around and could only walk about a block before she would need a rest. (Tr. 49, 55). Her elbow
also caused problems with pushing, pulling, lifting, and carrying; she estimated she could carry
about five pounds. (Tr. 49-50).
During her freshman year, Plaintiff was referred for a psychological consult to determine
if she was eligible for special education courses. (Tr. 1069). On the Wechsler Intelligence Scale
for Children III (“WISC-III”), her full scale IQ was measured 69. (Tr. 1070-71, 1082). While
school psychologist, Donna Mihalec concluded Plaintiff was within the mentally deficient range
of intelligence, she believed this was a measure of Plaintiff’s frustration with her own limitations
and not her intelligence. (Tr. 1071). A second non-verbal intelligence test, the TONI-3, was
administered and Plaintiff scored in the average range, a result the psychologist believed more
consistent with Plaintiff’s actual abilities. (Tr. 1071). However, her reading, math, and written
language skills were equivalent to those of a fourth grader. (Tr. 1071). Ms. Mihalec believed her
classroom skills were compromised by her lack of persistence and low frustration levels. (Tr.
She had an Individualized Education Plan (“IEP”) for the remainder of high school due to
her ADHD and learning difficulties. (Tr. 1074-83). Plaintiff’s high school transcript showed she
struggled her freshman year but by her senior year she was receiving mostly A’s and B’s;
however, she did not perform well on standardized tests. (Tr. 191-93).
Relevant Medical Evidence
In April 2004, Plaintiff reported chronic pain in her tailbone following a fall; she reported
that it was diagnosed as a fracture; but records show it was only a contusion. (Tr. 457, 491). Over
the next few years, Plaintiff was treated for multiple issues including pregnancy, abdominal pain,
leg pain, and right arm pain in the emergency room. (Tr. 359-540, 617-28, 639-90, 813-955). A
vascular study in 2005 showed no evidence of deep or superficial venous thrombus or vascular
insufficiency in either leg. (Tr. 1087). In May 2007, she began physical therapy to address her
back pain but only attended three of her scheduled eight sessions and was subsequently
discharged from care for poor attendance. (Tr. 605, 608, 615-16). An August 2007 MRI revealed
normal alignment in the thoracic spine, normal disc height, no stenosis, mild degenerative
changes at L1-L2, and no disc herniation. (Tr. 801-02, 805).
In March and April 2010, she was seen in the emergency room with complaints of
persistent pain and swelling in her left leg for the past four months; she was told to rest and
discharged home. (Tr. 359-60, 553, 1021, 1147-63). In August and September 2010, Plaintiff
complained of persistent left elbow pain resulting from a fall but the x-rays were unremarkable.
(Tr. 581-83, 694-97, 702, 707-08). About six months later, she returned to the emergency room
with complaints of severe leg cramps bilaterally that had lasted seven days, the cause of the pain
was undetermined. (Tr. 569, 553-555).
A few months later she returned with the same complaints about her legs although she
walked without difficulty. (Tr. 961, 982). Plaintiff continued to report left elbow pain and
swelling in September 2011 due to epicondylitis but x-rays remained normal. (Tr. 958, 1044).
The doctor observed diffuse tenderness but no swelling and a full range of motion. (Tr. 958).
In early 2012, Plaintiff underwent an electromyography as related to her elbow pain and
it revealed “possible left ulnar decompression”. (1045-48). In February of that year, Plaintiff had
surgery to correct her tardy left ulnar nerve palsy. (Tr. 1049). Following the surgery, she
continued to complain of pain and paresthesias. (Tr. 1050-53).
From September 2007 through February 2010, Plaintiff received Celexa from Unison
Behavioral Health for help controlling depression, impulsivity, and irritability. (Tr. 334, 337). At
her initial visit, she denied hallucinations, feelings of hopelessness, sleep problems, impulsivity,
and anxiety but complained of mild depression related to her children being taken away from
her. (Tr. 335). On examination, she was alert, oriented, had normal psychomotor activity, good
eye contact, normal speech, euthymic mood, broad affect, linear thought process, fair attention
and concentration, intact recent and remote memory, and borderline intellectual functioning. (Tr.
336). Her intake form indicated she denied any history of learning disabilities even though the
referral from Lucas County Children Services indicated she “completely lacked insight into why
[Child Services] was involved with her case.” (Tr. 349). Plaintiff was assessed a Global
Assessment of Functioning (“GAF”) score of 551 and diagnosed with dysthymic disorder. (Tr.
1. The GAF scale represents a “clinician’s judgment” of an individual’s symptom severity or
level of functioning. American Psychiatric Association, Diagnostic & Statistical Manual of
Mental Disorders, 32-33 (4th ed., Text Rev. 2000) (DSM-IV-TR). A GAF score of 51-60
indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers). Id.
337). At follow-up appointments, she reported the medication was working well and she was
much calmer. (Tr. 1141-44).
For approximately two months in spring of 2010, Plaintiff received medication from the
Mildred Bayer Clinic. (Tr. 541-544). In November 2010, Plaintiff saw counselor Jim Buyakie,
LPC, on referral from Michelle Heben, M.D. (Tr. 577). During the interview, she was untruthful
and unmotivated to discuss her problems. (Tr. 576-77). Mr. Buyakie diagnosed Plaintiff with
major depression and assigned a GAF score of 55. (Tr. 576).
In December 2011, Plaintiff was assessed at Unison Behavioral Health where she
reported depression, anhedonia, irritability, problems with sleep, and easy frustration. (Tr. 1066).
She also claimed to have begun hearing voices, mostly at nighttime and seeing shadows. (Tr.
1066). However, she denied suicidal ideation, hopelessness, mood swings, anxiety, mania, or
panic attacks. (Tr. 1066). On examination, she was withdrawn yet cooperative, had spontaneous
speech, dysphoric mood, no psychomotor activity, intact short and long-term memory, and fair
insight and judgment. (Tr. 1067-68). She was diagnosed with major depression, ADHD, and a
learning disorder; she was also assigned a GAF score of 45.2 (Tr. 1068).
On February 13, 2012, she was seen by Habeeb Arar, M.D., after missing four
appointments, because she needed more medication. (Tr. 1055). At this appointment she reported
crying spells, depressed mood, and hearing voices but stated they “are a little farther.” (Tr.
1055). She denied any medication side effects or changes in sleep, appetite, or weight. (Tr.
1055). Dr. Arar observed normal movement, good eye contact, cooperative mood, good hygiene,
normal speech, constricted affect, goal-directing thought process, and good insight and
1. A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, sever obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., few friends, unable to keep a job). Id. at 34.
judgment. (Tr. 1055). Dr. Arar diagnosed Plaintiff with dysthymic disorder and prescribed her
Risperdal and Wellbutrin. (Tr. 1056).
A month later, Plaintiff returned and reported little change in her condition except that
the voices were softer now; her mental status exam was unchanged as well. (Tr. 1057). She
reported her medication was not helping much and Dr. Arar agreed to switch medications, she
was prescribed Seroquel. (Tr. 1057). In May 2012, Plaintiff followed-up with Dr. Arar where she
reported her mood was stable and the new medication was helping but she was still a bit anxious
during the day. (Tr. 1060). Dr. Arar observed normal speech, movement, congruent affect, goaldirected thought process, normal attention and concentration, and good insight and judgment.
In August 2012, Dr. Arar completed a medical source statement regarding Plaintiff’s
mental impairments. (Tr. 1063-65). He opined Plaintiff could remember, understand, and follow
directions for simple tasks at least 80% of the time, maintain attention and concentration for twohour periods less than 80% of the time but more than 2/3rds of the time, could not work in fast or
externally imposed pace, would be 15-25% less productive than an unimpaired worker, and
would have difficulty withstanding work stress such that she should work in unskilled or lowskilled work where frequent breaks would be needed. (Tr. 1063-65). Dr. Arar refused to opine on
Plaintiff’s ability to maintain a regular work schedule and attendance or on her ability to interact
with others. (Tr. 1064).
On September 11, 2012, Plaintiff returned for medication management and follow-up at
Unison where it was observed she was happy, with congruent affect, intact memory, attention,
and concentration, linear thought process, good insight and judgment, and no auditory or visual
hallucinations. (Tr. 1166). The remainder of her visits that year and into 2013 showed largely
unchanged mental status observations, no side effects of medication, and medication compliance.
On January 31, 2006, Plaintiff underwent a consultative examination with Gary Alan
White, Ph.D., where she reported anxiety, anhedonia, and depression. (Tr. 291). She also
reported a history of a learning disability and while she had a 3.6 GPA in high school, she
attended special education classes. (Tr. 291-92). Her normal day consisted of getting the kids
ready for school, giving her daughter her medication, doing housework, preparing dinner, and
bathing the kids before bed. (Tr. 292). She frequently socialized with her mother and friends and
had no problems with others in the community. (Tr. 291-92). Dr. White observed Plaintiff to be
cooperative and friendly, with fair eye contact and social skills, and the ability to maintain
attention throughout the interview. (Tr. 293). At this time, she denied hallucinatory involvement.
(Tr. 293). Dr. White found her immediate memory was impaired as demonstrated by her inability
to repeat back digits but her past memory was intact. (Tr. 294). According to the Wechsler Adult
Intelligence Scale III (“WAIS-III”), Plaintiff had borderline intelligence with a full scale IQ of
73. (Tr. 294). Dr. White assigned Plaintiff a GAF score of 58.3
Dr. White concluded Plaintiff’s ability to maintain attention, concentration, persistence,
and pace was mildly impaired due to depression and her borderline intellectual functioning. (Tr.
296). He also concluded her ability to understand, remember, and follow instructions, as well as
3. A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers). Id.
her ability to relate to others were not impaired. (Tr. 296). Lastly, he opined she was mildly to
moderately impaired in her ability to withstand work stressors and pressure due to her depression
and intellectual abilities. (Tr. 296).
On March 6, 2013, Plaintiff underwent a second consultative examination with Jerome
Zake, Ph.D. (Tr. 1174-82). Dr. Zake observed cooperative manner, appropriate motivation,
normal articulation, blunt affect, dysphoric mood, adequate eye contact, no hostility or
aggression, adequate concentration, impaired persistence, and low to average cognitive reasoning
skills. (Tr. 1174-78). These were contrasted by Plaintiff’s reports of anxiety, mood swings,
crying spells, and auditory hallucinations. (Tr. 1174-78). Dr. Zake opined Plaintiff had
dysthymic disorder, generalized anxiety disorder, mild psychotic disorder, and learning disorder;
he assigned her a GAF score of 47.
He concluded despite her adequate understanding and recall, Plaintiff was impaired in
carrying out instructions as evidenced by her difficulties with child services. (Tr. 1178). He also
found she had adequate concentration, unremarkable pace, and questionable persistence; social
anxiety; and increased symptomology when confronted with stress. (Tr. 1179). Dr. Zake opined
Plaintiff had no restrictions in her ability to understand, remember, or perform simple
instructions or make simple work related decisions, however she was moderately limited in her
ability to carry-out complex instructions. (Tr. 1180). Dr. Zake based this conclusion on
Plaintiff’s inability to understand her custody issues; he believed this difficulty would translate
into difficulties in other areas of life. (Tr. 1180). Next, he found her moderately impaired in her
ability to interact with the public and markedly impaired in her ability to interact with coworkers and supervisors based on her self-reported social isolation and anxiety. (Tr. 1181).
State Agency Reviewers
Stephen Meyer, M.D. completed a review of Plaintiff’s file on July 24, 2008 and opined
on her mental RFC. (Tr. 329-32). He opined she was moderately limited in her ability to
understand and remember detailed instructions but not significantly limited in any other
categories of understanding or memory. (Tr. 329). Further, he found her moderately limited in
her ability to carry-out detailed instructions and maintain attention and concentration for
extended periods but again opined she had no limitations in performing simple work without
supervision. (Tr. 329). Dr. Meyer concluded her ability to complete a normal workweek without
interruption, interact appropriately with the general public, coworkers, and peers, respond
appropriately to changes in work setting, and make plans independently of others were all
moderately limited. (Tr. 330). Overall, Dr. Meyer opined Plaintiff was capable of simple and
moderately complex routine tasks, performed at a reasonable pace with intermittent interaction
with others although some assistance may be needed if the routine changes. (Tr. 332).
In August 2011, Edmond Gardner, M.D., reviewed Plaintiff’s medical record and opined
that she had no physical impairments which caused severe limitations. (Tr. 67). Caroline Lewin,
Ph.D., concluded Plaintiff had mild restrictions in activities of daily living and social
functioning, and moderate difficulties maintaining concentration, persistence, and pace. (Tr. 68).
Dr. Lewin opined Plaintiff would be able to understand, remember, and follow simple and some
moderately routine tasks but would have difficulty with complicated tasks due to her limited
intelligence; she should remain in a static environment. (Tr. 70-71). She would also be limited to
superficial contact with coworkers and the general public because of her history of impulsive
behavior and anger issues. (Tr. 71).
On reconsideration, Aracelis Rivera, Psy.D., concurred with Dr. Lewin’s opinion
regarding Plaintiff’s abilities. (Tr. 82-85).
In May 2013, the ALJ found Plaintiff had the severe impairments of major depressive
disorder, borderline intellectual functioning, and learning disorder, not otherwise specified; but
these severe impairments did not meet or medically equal any listed impairment. (Tr. 15-18).
The ALJ then found Plaintiff had the residual functional capacity to perform a full range of work
at all exertional levels with the following non-exertional limitations: she could perform simple,
repetitive tasks or moderately complex tasks that do not require interaction with the general
public in a routine work setting with only occasional changes in work routine. (Tr. 19). But she
could not have the pace of work dictated by an external source, such as an assembly line. (Tr.
19). She was also limited to only occasional interaction with coworkers and supervisors. (Tr. 19).
Based on the VE testimony, the ALJ found Plaintiff could perform work as an industrial
cleaner, stores laborer, or a kitchen helper; and thus, was not disabled. (Tr. 24-25).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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.” Besaw v. Sec’y
of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings
“as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial
evidence or indeed a preponderance of the evidence supports a claimant’s position, the court
cannot overturn “so long as substantial evidence also supports the conclusion reached by the
ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for SSI is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any 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); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process – found at 20 C.F.R. § 404.1520 – to
determine if a claimant is disabled:
Was claimant engaged in a substantial gainful activity?
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which
substantially limits an individual’s ability to perform basic work
Does the severe impairment meet one of the listed impairments?
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps
One through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five
to establish whether the claimant has the residual functional capacity to perform available work
in the national economy. Id. The court considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
Plaintiff argues the ALJ erred because he (1) failed to assign appropriate weight to the
medical opinions in the record; and (2) did not consider if Plaintiff’s impairments were
equivalent to Listing 12.05C. (Doc. 17). Each argument will be addressed in turn.
Treating Physician Rule
Plaintiff argues the ALJ did not give good reasons for assigning little weight to the
opinion of psychiatrist Dr. Arar. (Doc. 17, at 14-18). Under the regulations, a “treating source”
includes physicians, psychologists, or “other acceptable medical source[s]” who provide, or have
provided, medical treatment or evaluation and who have, or have had, an ongoing treatment
relationship with the claimant. 20 C.F.R. § 416.902. An ongoing treatment relationship will exist
when “medical evidence establishes that [plaintiff] see[s], or ha[s] seen, the source with a
frequency consistent with accepted medical practice…” § 404.1502.
If a treating source relationship is established, the opinion of such treating source is
usually given deference because it is based on a “detailed, longitudinal picture of [a plaintiff’s]
medical impairment(s)”. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007); see
also SSR 96-2p, 1996 WL 374188. In contrast, the opinions of non-treating sources are not given
deference. § 416.927(d)(2); SSR 96-8p. Non-treating sources are physicians, psychologists, or
other acceptable medical sources that have examined the claimant but do not have, or did not
have, an ongoing treatment relationship with them. § 416.902.
Here, the record does not establish that Dr. Arar was a treating physician at the time he
rendered his opinion on Plaintiff’s ability to work; and thus, the ALJ was not required to provide
good reasons for not affording it deference. The record shows Dr. Arar only saw Plaintiff three
times over a six-month period before he provided the check-box opinion on her ability to work.
(Tr. 1055, 1057, 1060, 1063). An ongoing treatment relationship does not exist because the
evidence does not “establish that [Plaintiff] see[s], or ha[d] seen, the source with a frequency
consistent with accepted medical practice.” § 404.1502. See e.g., Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 832 (2003); Helm v Comm’r of Soc. Sec., 405 F. App’x 997, 1000 n.3 (6th
Cir. 2011); Daniels v. Comm’r of Soc. Sec, 152 F. App’x 485, 491 (6th Cir. 2005); Yamin v.
Comm’r of Soc. Sec., 67 F. App’x 883, 885 (6th Cir. 2003). The treating physician rule is
intended to grant deference to those medical sources that have a detailed and complete picture of
the Plaintiff’s medical history; that rationale does not apply here.
However, Dr. Arar is a non-treating source under the regulations; and the ALJ must
evaluate and weigh his medical opinion based on certain factors. Rabbers v. Comm’r Soc. Sec.
Admin., 582 F.3d 647, 660 (6th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)). These factors
include the length of treatment relationship, the frequency of examination, the nature and extent
of the treatment relationship, the supportability of the opinion, the consistency of the opinion
with the record as a whole, and the specialization of the treating source. Id. Additionally, the
regulations support medical opinions with thorough explanations that have considered all
pertinent evidence. § 404.1527(c)(3).
The ALJ gave Dr. Arar’s opinion little weight because the check-box conclusions were
not supported by explanations or the objective evidence, and the ALJ believed it to have been
completed as an accommodation for the Plaintiff. (Tr. 22). Setting aside the ALJ’s belief
regarding Dr. Arar’s motives, the former two reasons are adequate explanations of why more
weight was not given to Dr. Arar’s opinion. First, the opinion was internally inconsistent with
Dr. Arar’s own observations, for example at two out of his three sessions with Plaintiff he found
her attention and concentration were normal. (Tr. 1058, 1061). Yet, he opined she would only be
able to maintain attention and concentration between 66-80% of the time because she “has poor
concentration and short attention spans”. (Tr. 1063). Second, Dr. Arar only provided vague
explanations for two of his restrictions and none at all for the others. (See Tr. 1063-65). When
asked to explain the support for his conclusion that Plaintiff would have difficulty tolerating the
stress of even routine work, Dr. Arar wrote “patient has problem to cope with stress.” [sic]. (Tr.
1065). It is this type of conclusory explanation and opinion that an ALJ is free to devalue. See
White v. Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) (conclusory statements from
physicians, without support from specific documents, are a valid reason for discounting an
opinion). The ALJ did not err in refusing to grant more weight to an opinion that was almost
entirely unsupported by explanation and lacked a basis in the available record.
Plaintiff next challenges the weight given to the opinions of state agency reviewer,
Stephen Meyer, M.D., and consultative examiner, Jerome Zake, M.D., claiming their opinions
were not substantial evidence upon which to base the ALJ’s decision. (Doc. 17, at 18-22).
As to Dr. Meyer’s opinion, Plaintiff claims it should not have been given significant
weight because the opinion was rendered without a complete medical record. (Doc. 17, at 19).
The ALJ knew Dr. Meyer’s opinion covered only a finite period because Dr. Meyer specifically
cited to the dates of the examinations on which he based his opinion, so there was no confusion
on what evidence he reviewed. Certainly, it is true that an opinion given in 2008 would not
contain more recent medical records. However, that alone is not enough to discount an opinion.
See McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 2009) (finding an ALJ does
not err by relying on a prior opinion as long as the remainder of the medical record is considered
to take into account any more recent relevant changes in condition).
It is apparent from a review of the ALJ’s decision that he summarized and considered all
the evidence of record, including her more recent treatment records. (Tr. 19-23). Importantly, her
more recent treatment records do not display notably different symptoms than those summarized
by Dr. Meyer in 2008; at both times she complained of depression, anxiety, and mood swings,
the only difference in later years were reports of auditory hallucinations, however all of her
symptoms were improved by medication. (See Tr. 331, 1043, 1055, 1057, 1060, 1166, 1167-72).
It should be noted Plaintiff argues Dr. Meyer may not have had access to her school records, yet
Dr. Meyer makes explicit reference to “school testing” in his opinion; regardless, Plaintiff fails to
explain how this would have altered his opinion. (Tr. 331). The ALJ did not err by granting
significant weight to Dr. Meyer’s opinion when a review of the record shows her condition had
not substantially changed and the ALJ’s opinion considered more recent evidence.
Further proof the ALJ considered recent evidence is the great weight he gave to the
opinion of Jerome Zake rendered in 2013. Plaintiff incorrectly asserts that the ALJ ignored Dr.
Zake’s opinion with regard to Plaintiff’s social limitations; however, the RFC explicitly states
she is not to have interaction with the general public and is to have only occasional interaction
with coworkers or supervisors. (Doc. 17, at 20-21); (Tr. 19). These restrictions are consistent
with Dr. Zake’s comments that she is anxious around others and Plaintiff’s self-reported social
isolationism. (Tr. 22, 1180-81).
Plaintiff next argues that Dr. Zake’s opinion is “not entirely inconsistent” with that of Dr.
Arar’s and thus presumably, should be given the same little weight. (Doc. 17, at 19). This
argument completely lacks merit. It is true Dr. Zake and Dr. Arar made similar observations on
mental status examination, however, the difference is the conclusions drawn from those
observations. (See Tr. 1063, 1174-81). As discussed above, Dr. Arar’s opinions on Plaintiff’s
ability to work were neither explained nor tied to his observations about Plaintiff’s condition. On
the contrary, Dr. Zake specifically explained the basis for his opinion with reference to Plaintiff’s
comments during their session. (Tr. 22, 1174-81).
Plaintiff’s mere disagreement with the ALJ’s conclusions is not enough to overcome
substantial evidence. See Jones, 336 F.3d at 477 (6th Cir. 2003). The ALJ’s conclusions were
based on the evidence in the record and the supportability of the opinions, i.e. those that were
well explained and supported with citation to the record were accorded more weight than
conclusory opinions. See Rabbers, 582 F.3d at 660; see also Ealy v. Comm’r of Soc. Sec., 594
F.3d 504, 514 (6th Cir. 2010). Thus, there is no error in the weight given to the opinions of Drs.
Arar, Meyer, and Zake.
Plaintiff next argues the ALJ erred by failing to address whether Plaintiff’s condition was
medically equivalent to Listing 12.05C. (Doc. 17, at 8-12). The ALJ addressed the issue as
Finally, the “paragraph C” criteria of listing 12.05 were not met because the
claimant did not have 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.
(Tr. 18). Plaintiff alleges this is an insufficient explanation, especially since it does not address
the fact that she did have a full scale IQ score of 69 in 2000.
A plaintiff can demonstrate she is disabled by presenting “medical findings equal in
severity to all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493
U.S. 521, 531 (1990) (emphasis added); 20 C.F.R. § 404.1526(a). “Medical equivalence must be
based on medical findings” and “must be supported by medically acceptable clinical and
laboratory diagnostic techniques.” §404.1526(a). In order to determine whether a plaintiff’s
impairments are medically equivalent to a listing, the ALJ may consider all evidence in a
plaintiff’s record. § 404.1526(c).
The diagnostic description of intellectual disability in 12.05 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.” Part 404, Subpt. P, § 12.05. To demonstrate intellectual
disability, a plaintiff must establish three factors to satisfy the diagnostic description: 1)
subaverage intellectual functioning; 2) onset before age twenty-two; and 3) adaptive-skills
limitations. See Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009); Daniels v.
Comm’r of Soc. Sec., 70 F. App’x 868, 872 (6th Cir. 2003). Beyond these three factors, a
plaintiff must also satisfy “any one of the four sets of criteria” in listing 12.05. See Foster v.
Halter, 279 F.3d 348, 354 (6th Cir. 2001). Pertinent here, 12.05C requires a plaintiff to have a
valid, verbal, performance, or full scale IQ of 60-70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of function. Part 404, Subpt. P, §
There is no “heightened articulation standard” in considering the listing of impairments;
rather, the court considers whether substantial evidence supports the ALJ’s findings. Snoke v.
Astrue, 2012 WL 568986, at *6 (S.D. Ohio) (quoting Bledsoe v. Barnhart, 165 F. App’x 408,
411 (6th Cir. 2006)). However, a reviewing court must find an ALJ’s decision contains
“sufficient analysis to allow for meaningful judicial review of the listing impairment decision.”
Snoke, 2012 WL 568986, at *6; see also May, 2011 WL 3490186, at *7 (“In order to conduct a
meaningful review, the ALJ’s written decision must make sufficiently clear the reasons for his
decision.”). The court may look to the ALJ’s decision in its entirety to justify the ALJ’s stepthree analysis. Snoke, 2012 WL 568986, at *6 (citing Bledsoe, 165 F. App’x at 411).
In reviewing the ALJ’s opinion, the Court finds the ALJ erred in his lack of explanation
regarding the section C criteria. However, Plaintiff has not established the other three diagnostic
description factors under Listing 12.05 and therefore, the ALJ’s finding that Plaintiff did not
meet Listing 12.05C is supported by substantial evidence.
In support of her argument, Plaintiff directs the Court to allegedly qualifying IQ scores.
Indeed, in 2000, school psychologist Ms. Mihalec found Plaintiff had a full scale IQ score of 69.
4. The Commissioner does not dispute that Plaintiff has a mental impairment, depression, which
imposes an additional and significant work-related limitation. (Doc. 20, at 11).
(Tr. 1071). The ALJ did not explain why he did not consider the 2000 score valid (although the
assumption can be made it was because Dr. White determined Plaintiff had a full scale IQ of 73
in 2006). (Tr. 21, 294-96). But Plaintiff asserts even the score of 73 is within the standard error
of measurement so as to also make it a listing qualifying score. (Doc. 17, at 10). Because the ALJ
did not discuss the discrepancy between these scores or even mention their existence in his
conclusion regarding the section C criteria, he erred.
This error is relevant because Plaintiff has other severe impairments, mainly depression,
which causes significant work-related impairments. (Tr. 15). However, even accepting both IQ
scores as qualifying, the analysis does not stop with the section C criteria. See Blanton v. Soc.
Sec. Admin., 118 F. App’x 3, 7 (6th Cir. 2004) (“[T]wo IQ scores of 70, without more, does not
satisfy the requirements of Listing 12.05(C).”). Indeed, Plaintiff must also establish the
“additional factors” in the diagnostic description – 1) subaverage intellectual functioning; 2)
onset before the age of twenty-two; and 3) adaptive skills limitations. Each factor is addressed
First, Plaintiff must show subaverage intellectual functioning. A review of the record and
the ALJ’s opinion indicate that Plaintiff has consistently been found to be in the borderline
intellectual functioning range. (See Tr. 20-21, 294, 336, 1069-71, 1174-80). At school she
performed well with the assistance of an IEP; her teachers noted she made a good effort and
completed her work independently; and the majority of her grades were A’s and B’s. (Tr. 21,
191-93, 1073-83). See Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 677 (6th Cir. 2009)
(finding poor academic performance alone is not sufficient to warrant a finding of subaverage
intellectual functioning before the age of 22). She denied a history of learning disorders (Tr. 20,
349) and was generally found to have low average or average cognitive functioning (Tr. 294-96,
336, 1066, 1069-71, 1174-78). Further, at the same time Plaintiff received a score of 69 on the
WISC-III, she was administered the TONI-3 and found to be of average intelligence. (Tr. 1071).
Indeed, school psychologist Ms. Mihalec opined Plaintiff’s academic difficulties resulted from
lack of persistence and not her intellectual abilities. (Tr. 1071). Importantly, Plaintiff has never
been diagnosed with intellectual disability. Rather, Plaintiff has consistently been placed in the
borderline range of intellectual functioning; this coupled with her relatively good academic
record support the ALJ’s conclusion that she does not meet the requirements of Listing 12.05.
As Plaintiff needs all three limitations to meet or equal the listing, the Court need not
address Plaintiff’s arguments relating to deficits in adaptive skills because of her failure to meet
the prerequisite of subaverage intellectual functioning. In sum, while the Court finds the ALJ’s
analysis of Plaintiff’s potentially qualifying IQ scores was insufficient, the ALJ’s ultimate
conclusion finding Plaintiff failed to medically equal Listing 12.05C was not. This is because the
ALJ adequately discussed and supported with substantial evidence the reasons Plaintiff did not
satisfy the diagnostic criteria. Where as here, remand would be an “idle and useless formality”;
the Court is not required to do so. See Kobetic v. Comm’r of Soc. Sec., 114 F. App’x 171, 173
(6th Cir. 2004).
For the above stated reasons, the undersigned finds the ALJ’s determination is supported
by substantial evidence, as Plaintiff has failed to satisfy the required severity to equal Listing
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying DIB is supported by substantial
evidence. The undersigned therefore affirms the Commissioner’s decision.
s/James R. Knepp II
United States Magistrate Judge
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