Hight v. Commissioner of Social Security

Filing 16

Memorandum Opinion and Order affirming the final decision of the Commissioner. Magistrate Judge Nancy A. Vecchiarelli on 8/28/2015. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MISTY L. HIGHT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CASE NO. 5:14-CV-02591

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Misty Hight (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying
her application for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 423, 1381(a) 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

On October 28, 2010, Plaintiff filed her application for SSI, alleging a disability
onset date of May 1, 1998. (Transcript (“Tr.”) 13.) The claims were denied initially and
upon reconsideration, and Plaintiff requested a hearing before an administrative law
judge (“ALJ”). (Id.) On April 10, 2013, an ALJ held Plaintiff’s hearing. (Id.) Plaintiff
participated in the hearing, was represented by counsel, and testified. (Id.) A
vocational expert (“VE”) also participated and testified. (Id.) On May 16, 2013, the ALJ
found Plaintiff not disabled. (Tr. 10.) On September 23, 2014, the Appeals Council

declined to review the ALJ’s decision, and the ALJ’s decision became the
Commissioner’s final decision. (Tr. 1.)
On November 25, 2014, Plaintiff filed her complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) The parties have completed briefing in
this case. (Doc. Nos. 13, 14, 15.)
Plaintiff asserts the following assignment of error: The ALJ erred in finding that
Plaintiff did not meet Listing 12.05(B) and 12.05(C).
II.
A.

EVIDENCE

Personal and Vocational Evidence
Plaintiff was born in February 1988 and was 22-years-old on the date she filed

her application. (Tr. 25.) She had a limited education and was able to communicate in
English. (Id.) She had no past relevant work. (Id.)
B.

Medical Evidence
1.

Medical and School Reports

Plaintiff received special education assistance through the developmental
handicap program at Fairmount Elementary School and Crenshaw Middle School. (Tr.
319.) She was held back in the first grade. (Id.) In May 1996, Plaintiff had a full scale
IQ score of 71. (Tr. 365.) Her verbal scale and performance scale scores were 88 and
59, respectively. (Id.)
The following issues were noted at Plaintiff’s January 15, 2003, eighth grade
Individualized Education Program (IEP) assessment: “Although Misty displays good oral
reading skills, she does experience difficulty with content related vocabulary and literal

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and inferential comprehension.” (Tr. 217.) The IEP indicated that Plaintiff had difficulty
with consistent topic maintenance throughout a story as well as the use of correct
grammar and punctuation. (Id.) She also had difficulty with multiple digit multiplication
and division as well as adding, subtracting, multiplying, and dividing fractions and
decimals. (Id.)
In March 2004, psychologist Richard VanVoorhis, D.Ed., performed a Wechsler
Abbreviated Scale of Intelligence Test on Plaintiff. (Tr. 322-323.) Dr. VanVoorhis noted
that Plaintiff received special education services since third grade. (Tr. 321.) Dr.
VanVoorhis rated Plaintiff’s verbal IQ at 65, her performance IQ at 67, and her full scale
IQ at 64. (Tr. 322.) Plaintiff’s scores were considered “well below average.” (Id.)
Plaintiff demonstrated “significant weaknesses in the areas of cognitive ability,
academic achievement, and adaptive behavior which adversely impact educational
performance.” (Tr. 323.) She needed to improve adaptive skills such as practicing how
to mail a letter, taking care of herself when ill, staying organized with schoolwork and
her belongings, performing minor household repairs, participating in hobbies, and
improving her money skills. (Tr. 322.) Plaintiff was 16-years-old at the time of testing.
(Tr. 323.)
Plaintiff’s tenth grade IEP was reassessed in February 2006. (Tr. 204.) Plaintiff
was “very successful” in her studies with adaptations and modifications and was said to
work “very hard.” (Id.) The IEP stated that Plaintiff was doing well with her academics
and that she was “a very nice, conscientious student and spends a great deal of time
doing her best work.” (Id.) The IEP noted that Plaintiff would continue to benefit from

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special education services. (Id.)
Plaintiff attended regular counseling sessions and occasional psychiatric visits
from January 2011 through January 2013. Treatment notes from an early January
2011 counseling session state that Plaintiff presented a “depressed, anxious mood and
blunted affect.” (Tr. 415.) Plaintiff reported that she had “significant symptoms of
depression and emotional distress” and that she stayed in her room and kept to herself
a lot. (Id.) A few weeks later, Plaintiff reported “increased depression and anxiety
related to concerns about her mother’s health.” (Tr. 417.)
Nurse Practitioner Kathleen O’Reilly conducted an initial psychiatric evaluation of
Plaintiff on January 31, 2011. (Tr. 395.) Plaintiff was cooperative and had a congruent
affect, but appeared disheveled and overweight and exhibited an average demeanor
and avoidant eye contact. (Tr. 399.) Plaintiff rated her depression a 10 out of 10 and
admitted to not wanting to live at times. (Id.) Ms. O’Reilly diagnosed mood disorder not
otherwise specified (NOS); post-traumatic stress disorder (PTSD); and borderline
intellectual functioning (BIF). (Tr. 400-401.) Ms. O’Reilly assigned Plaintiff a Global
Assessment of Functioning (GAF) score of 46.1 (Tr. 401.) Plaintiff was prescribed
Prozac, an anti-depressant. (Id.)
Weeks after being prescribed Prozac, Plaintiff reported that she only took the
medication one time because she felt it caused nausea and headaches after she

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The GAF scale incorporates an individual’s psychological, social, and
occupational functioning on a hypothetical continuum of mental health
illness devised by the American Psychiatric Association. A GAF score
between 41 and 50 indicates serious symptoms or any serious impairment
in social, occupational, or school functioning.
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“pulled the capsule apart and took the Prozac directly.” (Tr. 426.) Plaintiff was
encouraged to take the medication as prescribed and give it time to maximize its
effectiveness. (Id.)
In March 2011, Plaintiff told Nurse Tonya Hamilton that she was taking her
medication as prescribed and did not experience any adverse side effects. (Tr. 429.)
Plaintiff also reported that she was seeing a counselor, which was helping her. (Id.)
Nurse Hamilton observed that Plaintiff appeared well-groomed, exhibited an average
demeanor, was cooperative, and had average eye contact and a congruent affect. (Id.)
On April 7, 2011, Plaintiff told her counselor: “I’ve been really feeling down again
and crying lately. I think it is because of my dad. He’s been really yelling and we’ve
been fighting a lot again and I think that’s the main thing that has me down.” (Tr. 512.)
Plaintiff also reported that she was babysitting for her brother’s girlfriend’s child “a lot.”
(Tr. 514.) Plaintiff stated that her brother’s girlfriend “gets overwhelmed and doesn’t like
to change diapers, so I do a lot for her kids.” (Id.)
Plaintiff exhibited a withdrawn demeanor and constricted affect at her April 18,
2011, appointment with Nurse O’Reilly. (Tr. 404.) Plaintiff reported that her father had
become increasingly threatening to her mother. (Tr. 403.) Plaintiff’s thought process
was concrete and she had fair insight and judgment. (Tr. 404.)
At a counseling session on May 12, 2011, Plaintiff reported that she received her
temporary driver’s license and that she was “practicing a little with [her] mom” and could
not wait to get her license. (Tr. 520.) At another counseling session in late May 2011,
Plaintiff reported that her father was fighting and yelling at her mother. (Tr. 525.) In
June 2011, Plaintiff reported that she was “trying to walk away and go in [her] room
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when [her] dad gets on [her] nerves.” (Tr. 530.)
Between July and September 2011, Plaintiff’s mental status was unchanged.
She appeared well-groomed; she was cooperative; she had average eye contact, an
average intelligence estimate, and fair insight and judgment; and she exhibited a
constricted affect. (Tr. 536-546.)
A treatment note from July 21, 2011, indicated that Plaintiff continued to express
feelings of sadness and frustration related to multiple familial stressors. (Tr. 537.)
Plaintiff reported that she wanted to move away from her father but did not want
to leave her mother behind. (Id.) Plaintiff told Nurse O’Reilly that she was occasionally
paid by her brother for the “extensive babysitting she does for him,” and that she would
“ultimately like to receive SSI,” obtain her driver’s license, and move herself and her
mother away from her father. (Tr. 408.) Plaintiff appeared well groomed, had a logical
thought process, congruent affect, and fair insight and judgment, but she exhibited a
withdrawn demeanor and a dysphoric mood with some anxious features. (Tr. 409-410.)
On September 15, 2011, Plaintiff reported that “[i]t worried us that my brother’s
girlfriend is gonna have another baby when she’s not takin care of the ones she has,”
and that she spent time on the computer and with her mother and sister to cope with
stress. (Tr. 544.) Plaintiff’s intelligence was estimated as average. (Id.) In October
2011, Plaintiff appeared well groomed and cooperative, and presented a constricted
affect and an anxious, dysthymic mood. (Tr. 584.) Plaintiff’s intelligence was again
rated as average. (Id.) Plaintiff reported that she was “stressed a lot about the
babysitting. My brother and his girlfriend like to go a lot and they drop the kids off with
me and they don’t even change the kids‘ diapers.” (Id.)
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Throughout the end of 2011, Plaintiff continued to take her depression
medication and had mild to moderate symptoms and presented a withdrawn and
demanding demeanor. (Tr. 579-583, 676-678.) Nurse O’Reilly’s findings were
otherwise unremarkable. (Id.) In November 2011, Plaintiff reported, “I still get
depressed, but it is not as bad, and does not last as long.” (Tr. 676.)
Plaintiff’s early 2012 treatment notes document her continued reports of familial
difficulties relating to her father and siblings. (Tr. 650-652, 657-660, 667-671.) At
Plaintiff’s February 2012 counseling session, Plaintiff appeared well groomed, was
cooperative, and had an average demeanor, average eye contact, and fair logic and
insight, but she exhibited a constricted affect, rapid speech, and some difficulty with
attention and concentration. (Tr. 657-658.) In April 2012, Plaintiff reported ongoing
difficulties with her father, but her mental status was identical to her February 2012
mental status. (Tr. 650-651.) In June 2012, Plaintiff continued to report familial
difficulties, stating that she wished her brother and sister-in-law would do more for their
children. (Tr. 796.)
At an October 2012 psychiatric visit, Plaintiff’s mental status was unremarkable,
but treatment notes indicated that she was noncompliant with her visits and antidepression medication. (Tr. 754.) Plaintiff told the nurse that she babysat for her
brother every Friday night and spent her time watching TV, listening to music, and
reading. (Id.) Plaintiff reported that she was close with her twin sister and had a
strained relationship with her dad. (Id.)
At a psychiatric visit with Nurse O’Reilly in January 2013, Plaintiff reported that
she frequently babysat her brother’s four children. (Tr. 748.) On examination, Plaintiff
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presented a full affect and logical thought process, although her demeanor was
withdrawn and she was in an anxious mood. (Tr. 748-750.) Plaintiff was diagnosed
with mood disorder NOS and PTSD. (Tr. 750.)
2.

Agency Reports

Consultative psychologist James Lyall, Ph.D., performed a psychological
examination of Plaintiff in May 2011. (Tr. 483-487.) Plaintiff “was well oriented to time,
date, place, and situation”; had an unremarkable memory; and was noted to potentially
“have poor judgment” and “some insight into her need for mental health services.” (Tr.
485.) Plaintiff reported that she dropped out of school in tenth grade and had a history
of attention deficit hyperactivity disorder (ADHD) and a learning disability. (Tr. 483.)
Plaintiff also related that she was physically and verbally abused by her father as a child
and that she did not get along with other children in school because they teased her.
(Tr. 483-484.) Plaintiff reported that she had some counseling when she was younger
because of her father’s abusive behavior, and that she had been going to Coleman
Professional Services for counseling for the past three months and was taking Prozac.
(Tr. 484.) She stated that she liked her counselor, occasionally socialized with her
sister, had no friends, and was shy and fearful of being around others because they
always teased her. (Id.) Dr. Lyall noted that Plaintiff’s chief complaint was that she was
unable to work because her “asthma acts up” and she experienced tingling in her
hands. (Id.)
On examination, Plaintiff appeared neat and clean, was cooperative but nervous,
and spoke somewhat rapidly. (Tr. 484-485.) Dr. Lyall diagnosed Plaintiff with a
cognitive disorder NOS and depressive disorder NOS and assigned a GAF score of
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55.2 (Tr. 485.) Dr. Lyall opined that Plaintiff “would have difficulty in work situations
that involve close personal contact with others. If she has an employer whom she feels
is belittling her she would have greater difficulties as well. She might be able to perform
simple tasks with an understanding and accepting employer.” (Tr. 486.) Dr. Lyall also
administered the Wechsler Adult Intelligence Score Test and found that Plaintiff had a
full scale IQ score of 71. (Tr. 488.)
On May 12, 2011, state agency psychologist Mel Zwissler, Ph.D., reviewed
Plaintiff’s medical records and assessed her mental residual functional capacity (RFC).
(Tr. 62-66.) Dr. Zwissler diagnosed Plaintiff with affective disorders and borderline
intellectual functioning and found that she had mild restriction of activities of daily living;
moderate difficulties in maintaining social functioning; and moderate difficulties in
maintaining concentration, persistence, or pace. (Tr. 62.) He opined that Plaintiff had
moderate difficulties in: understanding, remembering, and carrying out detailed
instructions; maintaining attention and concentration for extended periods; completing a
normal workday and workweek without interruptions from psychologically based
symptoms and performing at a consistent pace without an unreasonable number and
length of rest periods; interacting appropriately with the public; getting along with
coworkers or peers without distracting them or exhibiting behavioral extremes;
responding appropriately to changes in the work setting; and setting realistic goals or
making plans independently of others. (Tr. 64-66.)

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A GAF score of 51-60 indicates moderate symptoms such as flat affect
and circumstantial speech, or suggests moderate difficulty in social,
occupational, or school functioning.
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In December 2011, state agency psychologist Kristen Haskins, Psy.D., reviewed
Plaintiff’s medical records and assessed her mental RFC. (Tr. 76-80.) Dr. Haskins
noted diagnoses of affective disorders and borderline intellectual functioning and found
that Plaintiff had moderate restrictions in activities of daily living, social functioning, and
maintaining concentration, persistence, and pace. (Tr. 77, 78-80.) Dr. Haskins opined
that Plaintiff was moderately limited in her ability to: understand, remember, and carry
out detailed instructions; maintain attention and concentration for extended periods;
sustain an ordinary routine without special supervision; work in coordination with or in
proximity to others without being distracted by them; complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods; interact
appropriately with the general public; accept instructions and respond appropriately to
criticism from supervisors; get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; respond appropriately to changes in the work setting;
and set realistic goals or make plans independently of others. (Tr. 78-80.)
C.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

Plaintiff testified that she had never worked because she did not like being
around people. (Tr. 36.) She stated that she babysat her brother’s children for about
an hour once per month, but that she had not babysat for the past nine or ten months.
(Id.) Plaintiff testified that she did nothing during the day except sleep because she
stayed up all night. (Tr. 39.) She did not do any household chores because she was

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“depressed all the time” and stayed in her room because she did not want to be around
people. (Tr. 38.) Plaintiff’s mother went shopping for her. (Tr. 40.)
Plaintiff attended school up to the tenth grade. (Tr. 41.) She stated that she had
no future plans to obtain her GED because she was terrible at math. (Id.) She did not
have trouble with reading or writing and was able to read books. (Tr. 41-42.) Plaintiff
testified that her biggest problems were her anxiety, depression, blood pressure,
difficulty with math, and the fact that she did not like to be around people. (Tr. 43.)
2.

Vocational Expert’s Hearing Testimony

Gene Burkhammer, a vocational expert, testified at Plaintiff’s hearing. The ALJ
asked the VE to assume a hypothetical individual of Plaintiff’s age, education, and work
experience who would be capable of performing work at all exertional levels. (Tr. 53.)
The individual would be limited to work involving simple, routine, and repetitive tasks
and a work environment free of fast-paced production requirements and involving only
simple, work-related decisions and routine workplace changes. (Id.) The individual
could have occasional interaction with the public and frequent interaction with
coworkers. (Id.) Her contact would be superficial, meaning no negotiation or
confrontation with others. (Id.) The VE testified that the hypothetical individual would
be capable of performing such jobs as an order puller, a dishwasher, and a
housekeeping cleaner. (Tr. 54.)
III.

STANDARD FOR DISABILITY

A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y

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of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she 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 she 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 she 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
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 her from doing her
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 her from doing her 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. §§

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404.1520(g), 404.1560(c), and 416.920(g).
IV.

SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:
1.

The claimant has not engaged in substantial gainful activity since
October 28, 2010, the application date.

2.

The claimant has the following severe impairment: Borderline
Intellectual Functioning.

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

4.

After careful consideration of the entire record, I find that the claimant
has the residual functional capacity to perform a full range of work at
all exertional levels but with the following nonexertional limitations:
The claimant can perform simple, routine, and repetitive tasks. The
work environment must be free of fast-pace production requirements
and must involve only simple work related decisions and routine work
place changes. The claimant can occasionally interact with the public
and frequently with coworkers. The claimant can have superficial
contact, defined as no negotiation or confrontation with others.

5.

The claimant has no past relevant work.

6.

The claimant was born in February 1988 and was 22-years-old, which
is defined as a younger individual age 18-49, on the date the
application was filed.

7.

The claimant has a limited education and is able to communicate in
English.

8.

Transferability of job skills is not an issue because the claimant does
not have past relevant work.

9.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform.

10.

The claimant has not been under a disability, as defined in the Social
Security Act, since October 28, 2010, the date the application was
filed.
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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.
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 Assignment of Error

Plaintiff argues that the ALJ erred in finding that she did not meet subsections

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(B) and (C) of Listing 12.05. Listing 12.05 sets forth the requirements for finding
disability resulting from “intellectual disability.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.05. In its first paragraph, Listing 12.05 provides the diagnostic description of the
impairment:
Intellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment
before age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
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).
An individual may satisfy the requirement of subsection (B) of Listing 12.05 by
demonstrating a “valid verbal, performance, or full scale IQ of 59 or less.” Id. An
individual may satisfy the requirement of subsection (C) by demonstrating 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.”
Id. Thus, subsection (C) sets forth two requirements: (1) an IQ requirement; and (2) a
significant limitation requirement.
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1.

Listing 12.05(B)

In his hearing decision, the ALJ found that Plaintiff did not meet the paragraph B
criteria of Listing 12.05, because she did not have a valid IQ score of 59 or less. (Tr.
17.) The ALJ explained:
The record contains one examination that resulted in IQ scores
of 59 or less (Exhibit 2F/173). However, this score was not
repeated in subsequent testing. Examination of school records
indicate that, unlike subsequent testing, the test-taker and the
testing procedure is not documented in the record. In light of
subsequent testing, the claimant’s educational performance, and
treatment notes, which indicate apparent average intelligencetype functioning, the claimant’s IQ score of 59, is not valid.
(Tr. 17-18.) Plaintiff maintains that the ALJ erred in rejecting her IQ score of 59.
As the Commissioner notes in her Brief on the Merits, the ALJ has discretion to
evaluate the validity of a claimant’s IQ score. See Courter v. Comm’r of Soc. Sec., 479 F.
App’x 713, 721 (6th Cir. 2012) (“Although there was some competing evidence indicating
mental limitations, such as Claimant’s qualifying IQ score of 59, the ALJ explicitly agreed
with the experts that this score was an underestimate and noted her prior IQ score of 76.
We defer to the ALJ’s decision ‘even if there is substantial evidence in the record that
would have supported an opposite conclusion, so long as substantial evidence supports
the conclusion reached by the ALJ.’”), citing Foster v. Halter, 279 F.3d 348, 353 (6th Cir.
2011). “[T]he mere fact of a qualifying IQ score does not require that the ALJ find mental
retardation under Section 12.05B when substantial evidence supports the c ontrary
conclusion or the claimant’s allegations of her capabilities are deemed not credible.” Id.,
citing Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542-43 (6th Cir. 2007).
Here, substantial evidence in the record, as articulated by the ALJ in his decision,
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supports the ALJ’s decision to reject Plaintiff’s IQ score of 59. While the ALJ recognized
that the record contains one examination that resulted in an IQ score of 59 or less, he
reasonably concluded that it was not valid because it was not repeated in subsequent
testing and was inconsistent with Plaintiff’s “educational performance, and treatment
notes, which indicate average intelligence-type functioning.” (Tr. 17-18.) First, the ALJ
questioned the validity of the IQ score because the individual who conducted Plaintiff’s IQ
testing and the procedure used was not documented in the record. (Tr. 17.) As the
Commissioner notes, the record states only that an individual named “N. Peterson”
conducted the test, but does not include the individual’s full name or credentials or the
protocols used to conduct the testing. (Tr. 365.)
Furthermore, the ALJ noted that the record contains evidence of higher IQ scores
obtained by Plaintiff. (Tr. 17.) In March 2004, school psychologist Dr. VanVoorhis rated
Plaintiff’s full scale IQ score at 63. (Tr. 322-323.) In May 2011, Dr. Lyall administered the
Wechsler Adult Intelligence Score Test and found that Plaintiff had a full scale IQ score
of 71. (Tr. 21, 488.) The ALJ notes that with regard to these subsequent tests, the testtaker and testing procedure were documented in the record. (Tr. 17.)
Moreover, the ALJ explained that Plaintiff’s IQ of 59 was unreliable in light of the
fact that Plaintiff’s educational performance and the treatment notes of record do not
support a finding of intellectual disability, but rather indicate average functioning. (Tr. 1718.) The record shows that Plaintiff was present in the general education classroom for
all subjects except math; had an “abundance of missing assignments” due to inconsistent
attendance; was recognized for being very hard-working, nice, and conscientious; and
made some improvements before dropping out of high school. (Tr. 19, 204, 217, 242, 347,
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360, 484.) Plaintiff’s 2006-2007 IEP report indicated that Plaintiff was doing well with her
academics; was working in all tenth grade level classes with adaptions and modifications;
and was spending “a great deal of time doing her best work.” (Tr. 19, 204.) Furthermore,
in rejecting Plaintiff’s IQ score of 59, the ALJ properly considered that Plaintiff’s intelligence
estimate was rated as average by her counselor and a mental health specialist on
numerous occasions. (Tr. 17, 19, 422, 505, 509, 513, 517, 21, 525, 529, 533, 536, 540,
544, 585, 596, 605, 609, 612, 616, 623, 627, 636, 640, 648, 651, 654, 658, 670, 673, 680,
684, 760, 764, 768, 772, 776, 780, 784, 788, 792, 800.) Accordingly, substantial evidence
supports the ALJ’s decision to find Plaintiff’s IQ score of 59 unreliable. As Plaintiff does
not have a valid IQ score of 59 or less, she does not satisfy the criteria of Listing 12.05(B).
2.

Listing 12.05(C)

Plaintiff argues that the ALJ erred in deciding that Plaintiff did not meet the
“significant limitation” requirement of Paragraph C of Listing 12.05. As discussed
above, an individual may satisfy the requirement of subsection (C) by demonstrating 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.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. According to Plaintiff, the ALJ
erred in finding that her “mood disorder does not cause additional limitations that are
significant” for purposes of satisfying the criteria of Listing 12.05(C). (Plaintiff’s Brief
(“Pl.’s Br.”) 14.)
In finding that Plaintiff did not meet Listing 12.05(C), the ALJ explained that
Plaintiff met the IQ requirement, but not the significant limitation requirement, of
Paragraph C:
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[T]he “paragraph C” criteria of listing 12.05 are not met because
the claimant does 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. The record contains valid IQ scores of 60
through 70 (Exhibits 2F/130-131 and 8F). However, none of the
claimant’s physical impairments are severe and do not cause
additional significant limitation. With regard to the claimant’s
mental impairments, as noted in the treatment history, although
the claimant was treated for mood disorder, her mood disorder
does not cause additional limitations that are significant.
Indeed, the claimant’s treatment notes show that her complaints
were focused on family and social issues. Therefore, the
“paragraph C” criteria are not met.
(Tr. 18.) Plaintiff maintains that the ALJ’s finding that Plaintiff’s mood disorder does not
cause additional significant limitations is not supported by substantial evidence. Plaintiff
notes that state agency consultants Drs. Zwissler and Haskins both found Plaintiff’s
affective disorder to be her primary diagnosis. (Tr. 62, 76.) Plaintiff argues that the ALJ
assigned “great weight” to Dr. Zwissler’s opinion, but failed to address his finding that
Plaintiff’s affective disorder significantly limited her mental ability to perform basic work
activities. Plaintiff also argues that “[i]n light of the ‘great weight’ provided to Dr. Zwissler’s
opinion, which appears to contain greater limitations than those found by the ALJ, the ALJ
s hould have more clearly explained how the mental RFC finding was consistent with Dr.
Zwissler’s opinion or, in accordance with SSR 96-8p, the ALJ should have explained why
he did not adopt these more severe limitations.” (Pl.’s Br. 15.) For the following reasons,
Plaintiff’s arguments are not well taken.
Substantial evidence supports the ALJ’s conclusion that Plaintiff’s mood disorder
did not cause additional significant limitations. As an initial matter, the ALJ did not wholly
ignore Plaintiff’s mood disorder; nor did the ALJ find that it had no impact on her abilities.
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Rather, in determining Plaintiff’s severe impairments at Step Two of the sequential
evaluation process, the ALJ expressly acknowledged that Plaintiff was diagnosed with a
mood disorder, but ultimately concluded that the disorder did not significantly limit
Plaintiff’s ability to perform basic work-related activities. (Tr. 15, 19.) The ALJ explained
that the Social Security Administration “is not a diagnosis driven agency and focuses on
the effect of the impairment rather than the name. Therefore, for purposes of disability
determination [Plaintiff’s mental] impairment diagnoses are considered to be the same as
they all address the same limitations.” (Tr. 19.) Thus, the ALJ acknowledged that Plaintiff
had a diagnosis of mood disorder, but explained that her condition did not cause
significant limitations. The ALJ discussed specific evidence from the record to support this
conclusion, noting, for example, that Plaintiff’s symptoms waxed and waned during
treatment, and that her complaints appeared to be focused on her family life, as
documented in almost every mental health treatment note. (Tr. 20, 24.) The ALJ also
explained that Plaintiff’s activities of daily living showed that she was not as limited as she
alleged.

(Tr. 24.)

Most notably, treatment records show that Plaintiff engaged in

“extensive babysitting.”3 (Id.)
Furthermore, while both Drs. Zwissler and Haskins, like the ALJ, acknowledged that

3

The ALJ noted that Plaintiff gave inconsistent testimony regarding her
childcare activities, which called into question the overall probative value
of her statements. (Tr. 25.) During the hearing, Plaintiff testified that she
had not babysat for nine or ten months and that when she had babysat, it
was only once a month for an hour. (Id.) The ALJ found that testimony
inconsistent with the treatment record, which contained numerous
references of Plaintiff’s babysitting activities, including complaints that her
brother and/or his girlfriend took advantage of her with regard to extensive
babysitting. (Id.)
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Plaintiff was diagnosed with a mood disorder, Plaintiff fails to explain how this fact supports
a finding that her mood disorder caused a significant limitation. It is well established that
the “mere diagnosis” of a condition “says nothing” about its severity, or its effect on a
claimant’s ability to perform work. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988).
Indeed, neither Dr. Zwissler nor Dr. Haskins opined that Plaintiff’s mood disorder
significantly limited her mental abilities; they found that Plaintiff had only mild to moderate
mental limitations, not marked limitations. (Tr. 62-66, 78-80.) The fact that Drs. Zwissler
and Haskins’ opinions note a primary diagnosis of affective disorder does not, alone,
require a finding of significant limitation under Paragraph C of Listing 12.05 as a result of
that disorder, nor does it require the ALJ to include limitations specifically related to that
diagnosis in Plaintiff’s RFC.
Finally, contrary to Plaintiff’s assertion, the ALJ did not err in his evaluation of Dr.
Zwissler’s opinion.

Dr. Zwissler opined that Plaintiff had moderate difficulties in:

understanding, remembering, and carrying out detailed instructions; maintaining attention
and concentration for extended periods; completing a normal workday and workweek
without interruptions from psychologically based symptoms and performing at a consistent
pace without an unreasonable number and length of rest periods; interacting appropriately
with the public; getting along with coworkers or peers without distracting them or exhibiting
behavioral extremes; responding appropriately to changes in the work setting; and setting
realistic goals or making plans independently of others. (Tr. 64-66.) The ALJ gave “great
weight” to Dr. Zwissler’s opinion because “he is an acceptable medical source and
because his opinion is consistent with the claimant’s IQ testing and mental health
treatment notes which showed some deficiencies in the area of social interaction and
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concentration, persistence or pace due to borderline intellectual functioning.” (Tr. 23.)
The ALJ further noted that Dr. Zwissler’s opinion was consistent with Plaintiff’s reported
activities of daily living, which included childcare. (Id.) Plaintiff summarily concludes,
without explanation, that Dr. Zwissler’s opinion “appears to contain greater limitations than
those found by the ALJ.” (Pl.’s Br. 15.) While the ALJ did not find that Plaintiff’s mood
disorder significantly limited her, he did find, as Dr. Zwissler did, that her mental
impairments limited her to some extent.

Consequently, the ALJ limited Plaintiff to

performing simple, routine, repetitive tasks in a work environment free of fast-pace
production requirements and involving only simple work-related decisions and routine
workplace changes.

(Tr. 18.)

The ALJ further limited Plaintiff to only occasional

interaction with the public and frequent interaction with coworkers, and noted that all
contact must be superficial, meaning it may not involve negotiation or confrontation. (Id.)
Plaintiff fails to explain how Dr. Zwissler’s opinion necessitates additional limitations
beyond those included in the ALJ’s RFC assessment. Accordingly, Plaintiff has not shown
that the ALJ erred in his evaluation of Dr. Zwissler’s opinion. For the foregoing reasons,
Plaintiff’s assignment of error does not present a basis for remand of her case.
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: August 28, 2015

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