McCoy v. Commissioner of Social Security
Filing
17
OPINION and ORDER DISMISSING CASE in that the Court OVERRULES Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision. Signed by Judge George C. Smith on 7/16/18. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TAMI R. McCOY,
Plaintiff,
Case No. 2:17-cv-191
JUDGE GEORGE C. SMITH
Magistrate Judge Vascura
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Tami R. McCoy (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for social security disability insurance benefits. This matter is before the Court on
Plaintiff’s Statement of Errors (Doc. 12), the Commissioner’s Memorandum in Opposition (ECF
No. 16), and the administrative record (ECF No. 10). For the following reasons, the Court
OVERRULES Plaintiff’s Statement of Errors and AFFIRMS the Commissioner’s decision.
I.
BACKGROUND
Plaintiff filed her application for Title II Social Security Benefits on April 5, 2013, alleging
that she had been disabled since April 1, 2013 due to having been born without a thyroid, mood
disorder, and weakness in her legs that limits her mobility. (Doc. 10, Administrative Record
(“AR”) at 133–46). On November 19, 2015, following initial administrative denials of Plaintiff’s
application, a hearing was held before Administrative Law Judge Timothy G. Keller (the “ALJ”).
(Id. at 881–91). The ALJ determined that updated medical records were required, and the case
was continued. (Id. at 889–90). A second hearing was held before the ALJ on March 17, 2016.
(Id. at 892–906).
At the second hearing, Plaintiff, represented by counsel, appeared and testified. Plaintiff
testified that she had for several years been working 20 hours per week at Taco Bell. (Id. at 895).
Taco Bell would give her additional hours each week if she asked, but she had for several years
had problems with her knees that prevent her from standing for long periods and do not permit her
to work longer than a four-hour shift in a day. (Id. at 896). She typically sits for five minutes out
of each four-hour shift, with additional “little breaks” when permitted by her shift manager. (Id.
at 900). She drives herself to work and back, which takes approximately 25 minutes each way.
(Id. at 901). At home, her inability to stand for long periods causes difficulty completing tasks
like washing dishes, cooking and laundry without taking frequent breaks. (Id. at 898, 900). She
lives with her husband, who helps around the house, but he also must take breaks due to his own
disability. (Id. at 901). Her hobbies include coloring adult coloring books. (Id. at 902).
Vocational Expert Eric Pruitt (the “VE”) also testified at the second hearing. (Id. at 902–
05). The VE classified Plaintiff’s past relevant work as housekeeping and fast food worker, both
light, unskilled positions. (Id. at 903). The ALJ proposed a hypothetical regarding Plaintiff’s
residual functional capacity (“RFC”)1 to the VE. (Id. at 903). The VE testified that Plaintiff would
not be able to return to either of her previous past relevant work positions. (Id. at 904).
On April 18, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within
the meaning of the Social Security Act. (Id. at 17–32). The ALJ noted that Plaintiff met the
insured status requirements through December 31, 2019. (Id. at 17). At step one of the sequential
1
A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20 C.F.R.
§ 404.1545(a)(1).
2
evaluation process,2 the ALJ found that Plaintiff had not engaged in substantially gainful activity
during the period from her alleged onset date of April 1, 2013, through the date of the second
hearing. (Id. at 19). The ALJ found at step two that, through the date of the second hearing,
Plaintiff had the severe impairments of thyroid disorder, left heel spur and plantar fasciitis postsurgery, cervical degenerative disc disease, obesity, degenerative changes of the bilateral knees,
and affective and anxiety disorders with borderline intellectual functioning. (Id. at 20).
The ALJ concluded at step three that Plaintiff did not, however, have an impairment or
combination of impairments that met or medically equaled one of the listed impairments described
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.). He specifically identified Listings 1.02, 1.04,
9.0, 12.04, 12.05, and 12.06 as Listings he considered. (Id.). With respect to Listing 12.05, the
ALJ concluded that Plaintiff did not satisfy the paragraph C criteria because “[Plaintiff] 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.” (Id. at
22).
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the [ALJ] finds that [Plaintiff] has
the residual functional capacity to lift, carry, push and pull twenty pounds
2
Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential evaluation of
the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step terminates the ALJ’s
review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review
considers and answers five questions:
1.
2.
3.
4.
5.
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or equal the criteria of an
impairment set forth in the Commissioner’s Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant perform his or her past
relevant work?
Considering the claimant’s age, education, past work experience, and residual functional capacity, can
the claimant perform other work available in the national economy?
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279
F.3d 348, 354 (6th Cir. 2001).
3
occasionally, ten pounds frequently; stand and walk for four of eight hours; sit for
six of eight hours; occasionally use left foot controls; occasionally climb, stoop,
crouch, kneel, and crawl. Mentally, [Plaintiff] retains the ability to understand,
remember, and carry out simple repetitive tasks, maintain attention and
concentration for two hour segments over an eight hour work period, respond
appropriately to supervisors and co-workers, adapt to simple changes and avoid
hazards in a setting without strict production quotas.
(Id. at 22).
As to Plaintiff’s alleged mental impairments, the ALJ assigned “significant weight” to the
mental assessments of the State agency psychological consultants, “with the exception of the
requirement for only superficial interaction with others.” (Id. at 29). The ALJ determined that
[t]his limitation is not supported by objective evidence in the record (Exhibits 1A,
3A, 18F, 12E). [Plaintiff] has reported no problems getting along with anyone but
one supervisor at a past job. She has reported getting along with family and friends.
She has nearly continuously worked at Taco Bell throughout the period of alleged
disability.
(Id. at 29). Relying on the VE’s testimony, the ALJ determined that Plaintiff is capable of making
a successful adjustment to other work that exists in significant numbers in the national economy.
He therefore concluded that Plaintiff was not disabled under the Social Security Act during the
relevant period. (Id. at 31).
II.
STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C.
§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
4
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).
Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to that
finding ‘even if there is substantial evidence in the record that would have supported an opposite
conclusion.’”
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence
standard, “a decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
III.
ANALYSIS
Plaintiff raises four issues in her Statement of Errors (Doc. 9):
(1)
The ALJ erred in his step three analysis of Listing 12.05C;
(2)
The ALJ’s decision does not contain an exhibit list as required by HALLEX I-2-120, depriving Plaintiff of her due process rights;
(3)
The ALJ’s findings are internally inconsistent; and
(4)
The ALJ’s weighing of State agency expert opinions is not supported by substantial
evidence.
The Court will address each of these issues in turn.
A.
Analysis of Listing 12.05C
To satisfy Listing 12.05, a claimant must first satisfy the diagnostic description applicable
to all intellectual disabilities under § 12.05, namely, that she experiences “significantly subaverage
5
general intellectual functioning with deficits in adaptive functioning [that] initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Next, the claimant must
satisfy the criteria of any one of Listing 12.05’s Paragraphs A, B, C, or D. Id. Here, Plaintiff
challenges only the ALJ’s findings as to Paragraph C, which requires that (a) she has a “valid
verbal, performance, or full scale IQ of 60 through 70”; and (b) she suffers from “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, § 12.05C; West v. Com’r Soc. Sec. Admin., 240 F.
App'x 692, 697–98 (6th Cir. 2007). The claimant must demonstrate that her impairments meet the
diagnostic description and both prongs of Paragraph C to satisfy Listing 12.05C. Foster v. Halter,
279 F.3d 348, 354 (6th Cir. 2001).
As to the Paragraph C criteria, the ALJ noted that “[Plaintiff] received a full scale IQ of
70, a verbal performance IQ of 72, and a performance IQ of 68 on the WAIS-IV in 1992” when
she was 21 years of age. (AR at 22, 175). And “[i]n cases where more than one IQ is customarily
derived from the test administered, e.g., where verbal, performance, and full scale IQs are provided
in the Wechsler series, we use the lowest of these in conjunction with 12.05.” 20 C.F.R. § Pt. 404,
Subpt. P, App. 1, § 12.00D(6)(c). There is thus no question that Plaintiff meets the first Paragraph
C criterion.
However, the ALJ concluded that Plaintiff did not meet the second Paragraph C criterion
because she did not have “a physical or other mental impairment imposing an additional and
significant work-related limitation of function.” (Id. at 22). He primarily based this conclusion
on Plaintiff’s maintaining full-time employment continuously from 2001 through 2012 and parttime employment continuously thereafter. (Id. at 22, 203). The ALJ reached this conclusion
6
despite noting that Plaintiff “reduced her hours due to physical impairments” (i.e., her inability to
stand for long periods of time due to problems with her knees). (Id. at 22).
This portion of the ALJ’s analysis of Listing 12.05C is not supported by substantial
evidence. The second Paragraph C criterion requires either a physical or mental impairment that
significantly limits Plaintiff’s work-related functioning; yet the ALJ appears to have erroneously
limited his consideration to Plaintiff’s mental impairments. While her mental impairment may
not, on its own, have significantly limited Plaintiff’s work-related functioning, that is not what
Paragraph C requires.
The ALJ already determined in step two that Plaintiff had multiple severe impairments
including “degenerative changes of the bilateral knees” (Id. at 20), and he could only have
concluded that this impairment was “severe” for step two purposes if it “significantly limits
[Plaintiff’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
Logically, if Plaintiff’s degenerative changes of the bilateral knees significantly limit her physical
ability to do basic work activities, they must also significantly limit Plaintiff’s work-related
functioning as required by Paragraph C. Accordingly, the ALJ’s own earlier findings demonstrate
that Plaintiff meets the Paragraph C criteria.
However, this error in analyzing the Paragraph C criteria was ultimately harmless, because
there is substantial evidence to support the ALJ’s finding that “the record does not support deficits
in adaptive functioning” as required by the diagnostic description for Listing 12.05. (AR at 22).
Adaptive functioning includes a claimant’s effectiveness in areas such as social skills,
communication skills, and daily living skills. West, 240 F. App’x at 699 (citing Heller v. Doe by
Doe, 509 U.S. 312, 329 (1993). The Sixth Circuit has upheld ALJ determinations that claimants
lack deficits in adaptive functioning when claimants are able to, e.g., work, do household chores,
7
manage their finances, take public transportation, interact with friends and family, and care for
their daily needs. E.g., West, 240 F. App’x at 698; Justice v. Comm’r Soc. Sec. Admin., 515 F.
App’x 583, 587 (6th Cir. 2013); Hayes v. Comm'r of Soc. Sec., 357 F. App’x 672, 677 (6th Cir.
2009). While Plaintiff is correct that the plain language of Listing 12.05 does not identify how
severe limitations must be to qualify as “deficits in adaptive functioning,” case law from the Sixth
Circuit and other federal courts suggest that deficits must be relatively significant to satisfy the
Listing. Robinson v. Comm’r of Soc. Sec., No. 2:13-CV-530, 2014 WL 3419309, at *8 (S.D. Ohio
July 10, 2014) (Deavers, M.J.) (collecting cases), report and recommendation adopted, No. 2:13CV-530, 2014 WL 4748483 (S.D. Ohio Sept. 23, 2014) (Sargus, J.).
In evaluating Plaintiff’s adaptive functioning, the ALJ relied on Plaintiff’s successful
graduation from high school, her regular earnings through the present, and stated that “[e]vidence
reveals that she is able to engage in substantial activities of daily living.” (Id.). Additionally, in
evaluating criteria for Paragraph D of Listing 12.05 (which findings Plaintiff does not challenge),
the ALJ noted that
The claimant reported activities of cooking, cleaning, and doing laundry. She
reported shopping in stores and online. She also reported caring for her son when
he stays with them and attending his games. Other activities included reading,
watching television, playing sports, listening to music, caring for pets, coloring,
and talking to others on the phone. The claimant has also been working part-time,
reduced from full-time, during the period of alleged disability. Although the
claimant was on temporary leave at the time of the second hearing, the claimant
reported normally working four days a week for twenty hours a week and driving
twenty-five minutes to and from work. She reported not being able to pay attention
long, having difficulties with concentration, and not handling stress or changes in
routine well.
Plaintiff’s abilities are similar to those of claimants determined by the Sixth Circuit to lack deficits
in adaptive functioning. The Court therefore finds that there is substantial evidence to support the
ALJ’s conclusion that Plaintiff’s impairments did not meet or medically equal the severity of
Listing 12.05C.
8
B.
Exhibit list required by HALLEX § I-2-1-20
The Hearings, Appeals, and Litigation Law (“HALLEX”) manual “defines procedures for
carrying out policy and provides guidance for processing and adjudicating claims at the Hearing,
Appeals Council, and Civil Actions Levels.” HALLEX § I-1-0-1. If the ALJ issues an unfavorable
decision, he must prepare a final exhibit list to protect the claimant’s due process rights. HALLEX
§ I-2-1-20(B)(3). The purpose of the exhibit list is to identify for the claimant the information the
ALJ relied on when making the decision. Id. “When an ALJ issues a less than fully favorable
decision, preparing the exhibit list in final form is mandatory and is not a discretionary practice.”
Id.
“It is an elemental principle of administrative law that agencies are bound to follow their
own regulations.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004). Generally,
however, federal courts review decisions of administrative agencies for harmless error. Rabbers
v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654–55 (6th Cir. 2009). Accordingly, “an agency’s
violation of its procedural rules will not result in reversible error absent a showing that the claimant
has been prejudiced on the merits or deprived of substantial rights because of the agency’s
procedural lapses.” Connor v. United States Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir.
1983).
The Commissioner does not dispute that the ALJ did not provide an exhibit list in final
form after he issued an unfavorable decision. However, the Commissioner correctly points out
that Plaintiff has made no attempt to demonstrate prejudice from this technical violation. Indeed,
Plaintiff’s counsel specifically stated at the second hearing that he had no objections to the exhibit
list then available (consisting of Exhibits 1A through 28F, along with additional documents
Plaintiff provided at the second hearing that were marked as “next in line in the F section”), and
Plaintiff does not argue that the final exhibit list would in any way differ from that available at the
9
hearing.
(AR at 895).
Further, throughout the ALJ’s written decision, he cited to the
administrative record and indicated each record on which he relied at each step of the sequential
evaluation. Thus, Plaintiff had notice of the exhibits relied upon by the ALJ and any error resulting
from the ALJ’s failure to provide an exhibit list in final form was harmless. See, e.g., Pearson v.
Colvin, No. 2:14-CV-26, 2015 WL 3757122, at *31 (N.D.W.Va. June 16, 2015) (failure to provide
HALLEX exhibit list in final form was harmless error when plaintiff’s counsel had opportunity to
review and did not object to exhibit list at hearing, and ALJ’s decision cited exhibits relied upon).
C.
Internal inconsistencies in the ALJ’s findings
Plaintiff argues that the ALJ’s findings are internally inconsistent because he determined
that Plaintiff has moderate difficulties in social functioning at step and three of the sequential
analysis (AR at 21), yet failed to include any limitations in social functioning when assessing
Plaintiff’s residual functional capacity (“RFC”) at step four. (AR at 22). The Commissioner
argues that no such restrictions were necessary because Plaintiff had demonstrated her ability to
respond appropriately to supervisors and co-workers through her many years of continuous
employment.
An ALJ need only include limitations arising from an impairment where the impairment
affects a claimant’s capacity to work:
The RFC describes the claimant’s residual abilities or what a claimant can do, not
what maladies a claimant suffers from—though the maladies will certainly inform
the ALJ’s conclusion about the claimant’s abilities. A claimant’s severe
impairment may or may not affect his or her functional capacity to do work. One
does not necessarily establish the other.
Griffeth v. Comm’r, 217 F. App’x 425, 429 (6th Cir. 2007) (internal quotation marks and citations
omitted). Thus, the ALJ’s finding that Plaintiff has moderate difficulties in social functioning did
not automatically require the inclusion of limitations on social functioning in Plaintiff’s RFC.
10
Further, the ALJ concluded that no such restrictions were necessary because Plaintiff
worked successfully for many years with co-workers, supervisors, and the public. (AR at 22, 26).
Plaintiff was continuously employed from 2001 through the date of the second hearing, first at a
hotel during 2001–2005 and then at two different Taco Bell locations during 2005–2016. (Id.).
During these years, Plaintiff reported only one incident in which she had trouble getting along with
a supervisor at her hotel job in 2005; otherwise she had no difficulty getting along with co-workers
and supervisors. (Id. at 22, 26, 282). Given Plaintiff’s lack of documented work-related social
functioning difficulties, the ALJ’s omission of any restriction on social functioning from Plaintiff’s
RFC is supported by substantial evidence.
D.
Weighing of State agency expert opinions
Similarly, Plaintiff argues that the ALJ erroneously discounted the portions of the State
agency psychological consultants’ opinions that recommended “only superficial interactions with
others.” (AR at 29). While State agency psychological consultants are “are highly qualified . . .
psychologists . . . who are also experts in Social Security disability evaluation,” ALJs “are not
bound by any findings made by State agency medical or psychological consultants.” 20 C.F.R. §
404.1527(e)(2)(i). Instead, the ALJ evaluates the State agency psychological consultant’s findings
using the relevant factors laid out in 20 C.F.R. § 404.1527, “such as the consultant’s medical
specialty and expertise in our rules, the supporting evidence in the case record, supporting
explanations the medical or psychological consultant provides, and any other factors relevant to
the weighing of the opinions.” 20 C.F.R. § 404.1527(e)(2)(ii).
Here, the ALJ specifically considered the opinions of State psychological consultants Drs.
Fernandez and Goldsmith, who performed psychological assessments of Plaintiff on August 13,
2013 and February 14, 2014, respectively. (AR 33–47, 388–405). Both consultants determined
that Plaintiff was “moderately limited” in her ability “to interact appropriately with the general
11
public.” (Id. at 44, 403). By way of explanation, both consultants included the following identical
remarks: “She reports some problems with anxiety, for example losing track of what she is doing
if someone is watching her do it. She does not socialize with friends. She can interact superficially
with others.” (Id. at 44, 404).
The ALJ determined that Drs. Fernandez and Goldsmith’s recommendations that Plaintiff
be limited to superficial interaction with others was unsupported by the record. (Id.at 29). In
particular, her continuous work history over many years, with only one reported problem with a
supervisor at a previous job in 2005, suggest that Plaintiff is capable of interacting with others
without restriction. (Id.). While Plaintiff faults the ALJ for focusing on her work history to the
exclusion of social difficulties in other areas, the ALJ was evaluating Plaintiff’s RFC for the
purposes of employment. Thus, her work history is especially relevant to determining any
necessary restrictions. Even though she may not socialize with friends, this has not negatively
affected her ability to work continuously during the period of disability. Therefore, the ALJ’s
decision to give little weight to the State agency psychological consultants’ recommendations
regarding superficial interactions with others was supported by substantial evidence.
IV.
CONCLUSION
In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits. Accordingly, the Court OVERRULES
Plaintiff’s Statement of Errors and AFFIRMS the Commissioner of Social Security’s decision.
The Clerk shall remove Document 12 from the Court’s pending motions list and enter final
judgment in favor of Defendant.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?