Collins v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE AND AFFIRMED; AND (2) THIS CASE BE CLOSED ON THE COURTS DOCKET Objections to R&R due by 1/25/2018. Signed by Magistrate Judge Michael J. Newman on 1/10/2018. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHRISTOPHER D. COLLINS,
Plaintiff,

Case No. 3:16-cv-478

vs.
COMMISSIONER OF SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE AND AFFIRMED;
AND (2) THIS CASE BE CLOSED ON THE COURT’S DOCKET

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Supplemental Security Income (“SSI”) and Child Disability Benefits (“CDB”).
This case is before the Court upon Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s
memorandum in opposition (doc. 10), Plaintiff’s reply (doc. 11), the administrative record (doc.
7),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed an application for SSI on January 29, 2013 and an application for CDB on
February 14, 2013 alleging disability as of May 1, 1999 -- then 7 years old -- who is now 26
years old. PageID 257-62, 263-76. Plaintiff alleges disability as a result of a number of alleged
impairments including, inter alia, attention deficit hyperactivity disorder (“ADHD”), bipolar
disorder, anxiety, and a history of polysubstance abuse. PageID 44.
1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

After an initial denial of Plaintiff’s application, Plaintiff received a hearing before ALJ
Gregory G. Kenyon on July 22, 2015. PageID 64-92. The ALJ issued a decision on August 19,
2015 finding Plaintiff not disabled. PageID 42-56. Specifically, the ALJ found at Step Five that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform a full range of work at all
exertional levels subject to specific non-exertional limitations,3 “there are jobs that exist in
significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 47-56.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 30-33. See
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then
filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 42-56),
Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition (doc.
10), and Plaintiff’s reply (doc. 11). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this appeal herein.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-

The ALJ found the Plaintiff: “(1) limited to performing unskilled, simple, repetitive tasks; (2)
occasional contact with co-workers and supervisors; (3) no public contact; (4) no teamwork or tandem
tasks; (5) no close over the shoulder supervision; (6) no fast paced production work or jobs involving
strict production quotes; and (7) limited to performing jobs in a relatively static work environment in
which there is very little, if any, change in the job duties of the work routine from one day to the next.”
PageID 47-48.
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46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] 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, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, including SSI or CDB/DIB, a claimant must be
under a “disability” as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed
to its statutory meaning, a “disability” includes physical and/or mental impairments that are both
“medically determinable” and severe enough to prevent a claimant from (1) performing his or
her past job and (2) engaging in “substantial gainful activity” that is available in the regional or
national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?;
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2.

Does the claimant suffer from one or more severe impairments?;

3.

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 (the “Listings”), 20 C.F.R. Subpart P,
Appendix 1?;

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?; and

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?

20 C.F.R. § 416.920(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D.
Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social
Security Act. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In Plaintiff’s Statement of Errors, Plaintiff alleges the ALJ erred by: (1) improperly
evaluating Plaintiff’s mental impairments under Listing § 12.05(C) and (2) improperly relying on
Vocational Expert (“VE”) Charlotta Ewers’s testimony. Doc. 9 at PageID 1036-42.
A.

Listing § 12.05(C)

Plaintiff first argues that the ALJ erred in concluding that Plaintiff’s impairments do not
meet or medically equal Listing § 12.05(C) at Step Three. Doc. 6 at PageID 963.
The Listing of Impairments “describes impairments the SSA considers to be severe
enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience.” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 653 (6th Cir.
2009) (internal quotations omitted). “Because satisfying the [L]istings yields an automatic
determination of disability . . . the evidentiary standards [at Step Three] . . . are more strenuous
than for claims that proceed through the entire five-step evaluation.” Peterson v. Comm’r of Soc.
Sec., 552 F. App’x 533, 539 (6th Cir. 2014).
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Plaintiff has the burden of proving that Plaintiff meets or equals all of the criteria of a
listed impairment. Evans v. Sec’y of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987).
To demonstrate disability under Listing § 12.05(C), Plaintiff must establish: “(1) significantly
subaverage general intellectual functioning with deficits in adaptive functioning[4] initially
manifested before age 22; (2) a valid verbal, performance, or full scale IQ of 60 through 70; and
(3) a physical or other mental impairment imposing an additional and significant work-related
limitation of function.” Golden v. Comm’r of Soc. Sec., 591 F. App'x 505 (6th Cir. 2015) (citing
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001)).
Here, in finding that Plaintiff did not meet or equal the requirements of Listing §
12.05(C), the ALJ noted that Plaintiff’s full scale IQ of 69 in February 2005 and 65 in July 2013
met one of the requirements of the Listing, but concluded that Plaintiff’s academic history and
adaptive skills did not meet or equal the Listing requirements. PageID 47. The ALJ cited
Plaintiff’s school records showing that, in high school, Plaintiff performed at an average “C”
level in Basic Algebra, Geometry, and English. PageID 47, 332. The ALJ also reasonably
concluded that the evidence as a whole does not demonstrate deficits in adaptive functioning
consistent with Listing-level intellectual disability. PageID 47. In this regard, the ALJ found
Plaintiff failed to meet or equal the Listing criteria because Plaintiff is capable of using a
computer for Facebook, plays Bingo, uses public transportation, goes to the library, and reads
both newspapers and the Bible. PageID 47, 687-89. The ALJ also pointed to the fact that
Plaintiff testified to occasionally “[doing] shows at a local bar” in finding that Plaintiff’s
adaptive functioning skills did not meet or equal the Listing requirements. PageID 46.

While Listing § 12.05 does not define “adaptive functioning,” another portion of the Listings
defines “adaptive activities” as “cleaning, shopping, cooking, taking public transportation, paying bills,
maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(1).
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Based on the foregoing, Plaintiff’s alleged error regarding Listing § 12.05(C) is without
merit and should be overruled.
B.

Vocational Expert

At Step Five, the ALJ must make a finding “supported by substantial evidence that
[Plaintiff] has the vocational qualifications to perform specific jobs.” Howard v. Comm’r of Soc.
Sec., 276 F.3d 235, 238 (6th Cir. 2002) (internal citation omitted). “This kind of ‘substantial
evidence may be produced through reliance on the testimony of a [VE] in response to a
‘hypothetical’ question, but only if the question accurately portrays [Plaintiff's] individual
physical and mental impairments.’”

Id. (internal citation omitted).

In formulating the

hypothetical question, the ALJ need incorporate only those limitations accepted as credible. See
Casey v. Sec. of Health and Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).
The undersigned finds that the limitations set forth by the ALJ in the hypothetical
question to the VE (and the ALJ’s resulting RFC) are supported by substantial evidence. PageID
47-56, 86-90. Accordingly, the Court overrules Plaintiff’s second alleged error.
IV.
For the foregoing reasons, the Court finds Plaintiff’s two assignments of error
unmeritorious. IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s nondisability finding be found supported by substantial evidence, and AFFIRMED; and (2) this
case be CLOSED.
Date: January 10, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based, in whole or in part, upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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