NANCY A. VECCHIARELLI, Magistrate Judge.
Plaintiff, Lina E. Setser ("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"),
On December 20, 2011, Plaintiff filed her application for SSI, alleging a disability onset date of June 1, 2006. (Transcript ("Tr.") 18.) Plaintiff's claim was denied initially and upon reconsideration, and she requested a hearing before an administrative law judge ("ALJ"). (Id.) On April 4, 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 April 22, 2013, the ALJ found Plaintiff not disabled. (Tr. 15.) On July 30, 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 September 24, 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. 16, 17, 18.)
Plaintiff asserts the following assignment of error: The ALJ erred in finding that Plaintiff did not meet Listing 12.05(C).
Plaintiff was born in March 1979 and was 32-years-old on the date the application was filed. (Tr. 27.) She had a limited education and was able to communicate in English. (Id.) She had no past relevant work. (Id.)
Plaintiff last attended the eleventh grade and was in special education classes. (Tr. 39, 174, 195.) A report from Mansfield Senior High School entitled Re-Evaluation ("the report") contains test reports from November 1995 and reports from Ronald Gillinov, a school psychologist, dated June 6, 1996. (Tr. 234-238.) The purpose of the report was to determine Plaintiff's continued eligibility for the school's developmentally handicapped (DH) program. (Tr. 234.) According to the report, Plaintiff initially entered the DH program during the 1987-1988 school year. (Id.) In October 1990, Plaintiff had obtained a full-scale intelligence quotient (IQ) score of 64 on the Wechsler Intelligence Scale for Children-Revised (WISC-R). (Id.) According to a note from Mr. Gillinov, Plaintiff had worked as a bagger at a grocery store and was presently working at a nursing home. (Id.) Mr. Gillinov also reported that Plaintiff spoke clearly and attended well to tasks, and she was personable and conversed readily. (Tr. 235.)
Barb Fairchild, a DH teacher, also contributed to the report. She noted that Plaintiff had attained an average score on the Daily Living Skills domain of the Vineland Adaptive Behavior Scales. (Tr. 236.) The Daily Living Skills domain involved health, working, self-care activities, money management, and other independent living activities. (Id.) Ms. Fairchild noted that deficiencies were indicated in the domains of communication and socialization. (Id.) Mr. Gillinov, Ms. Fairchild, and the special education supervisor, Ms. Turner, determined that Plaintiff qualified for the DH program. (Tr. 239.)
Plaintiff got married on September 23, 1997. (Tr. 226.) She did not earn enough credits to graduate from high school due to a complicated pregnancy. (Tr. 207.) An Individual Education Plan (IEP) addendum dated November 3, 1998, indicated that Plaintiff had returned to school in an attempt to earn enough credits for graduation through the DH work-study program. (Tr. 196, 206.) The IEP also stated that Plaintiff "has a driver's license and is independent in the community." (Id.) It further stated that Plaintiff could continue her current living arrangement with her child. (Id.)
An IEP dated December 3, 1998, with an effective date until June 1999, indicated that Plaintiff lived independently with her husband, but that she had a difficult time keeping a job. (Tr. 207.) At the time of the IEP, Plaintiff was unemployed without any work hours. (Id.) Plaintiff was withdrawn from school in October 1999 due to nonattendance. (Tr. 195.) At the time, she was in the twelfth grade and had a cumulative grade point average of 2.318 and a class rank of 124 out of 321 students. (Id.)
On April 17, 2008, Plaintiff saw J. Joseph Konieczny, Ph.D., a psychologist, for a consultative psychological evaluation. (Tr. 265-269.) Dr. Konieczny described Plaintiff as very pleasant and cooperative and noted that she appeared to be an adequate historian. (Tr. 265.) He reported that Plaintiff dropped out of twelfth grade when she got married. (Tr. 266.) He noted that Plaintiff's work history was "somewhat minimal and sporadic." (Id.) Plaintiff reported that her longest period of employment was as a cashier at Phar-mor, where she worked for more than two years. (Id.) She further reported that she was married and had three children, ages two, four, and seven, with her husband. (Id.) On examination, Dr. Konieczny found no poverty of speech in Plaintiff's conversation and found her capable of expressing herself in a clear and coherent manner. (Id.) He reported that Plaintiff's ability to concentrate and attend to tasks showed no indication of impairment. (Tr. 267.) Her insight and judgment seemed fair. (Id.) Dr. Konieczny observed that the scores Plaintiff achieved on the Wechsler Adult Intelligence Scale (WAIS-III) placed her intellectual functioning in the borderline range, and he opined that, overall, Plaintiff's intellectual capabilities were in the borderline range. (Tr. 268.) Dr. Konieczny diagnosed borderline intellectual functioning. (Id.)
On August 9, 2012, Plaintiff saw Jennifer Haaga, Psy.D., for an interview and mental status examination. (Tr. 325-331.) Dr. Haaga described Plaintiff as a reliable historian. (Tr. 325.) Plaintiff told Dr. Haaga that she had applied for disability benefits due to the eight screws and two plates she had in her foot that made it difficult for her to walk. (Id.) Plaintiff reported that she lived with her husband and that they raised their three children together. (Tr. 326.) She stated that she maintained good relationships with her family and that she sometimes attended church. (Id.) Dr. Haaga commented that her overall impression of Plaintiff's cognitive functioning was that Plaintiff functioned in the borderline range of ability. (Tr. 329.) Dr. Haaga noted that Plaintiff's attention, concentration, and ability to abstract was adequate. (Id.) She further noted that Plaintiff appeared to have good common sense, reasoning, and judgment, and she had good insight into her current situation. (Id.) Dr. Haaga reported that Plaintiff appeared cognitively and psychologically capable of living independently and of making decisions about her future, and that there was no indication that Plaintiff would be unable to manage her personal funds. (Tr. 329-330.)
At the time of her hearing, Plaintiff was married and had three children ages 12, 10, and 8. (Tr. 38-39.) Plaintiff testified that she had a driver's license and that she attended school through the eleventh grade. (Tr. 39.) All of her classes were special education classes. (Id.) She stated that she could read and write at a fourth grade level. (Tr. 40.) She could perform simple addition and subtraction. (Id.) Plaintiff had stopped working in 2007. (Tr. 41.) She testified that she attempted to work at a gas station, but found that she could not do that job due to ankle pain and problems using the cash register. (Id.) Plaintiff described all of her past jobs, including a job as a cashier at Phar-Mor. (Id.) She stated that she had help at that job and that she was allowed to use a calculator. (Tr. 42.) Plaintiff also worked as a bagger at Myers and as a cook at Burger King. (Id.) Plaintiff testified that she was unable to work due to her foot and ankle problems and her frequent kidney infections, which made her feel weak. (Tr. 43-44.) She also identified anxiety attacks and high blood pressure as further impediments to work. (Tr. 44.)
Mary Alice Harris, a vocational expert, testified at Plaintiff's hearing. The ALJ asked the VE to consider a hypothetical individual of Plaintiff's age, education, and work experience who would be capable of work at the sedentary level. (Tr. 54.) The individual could frequently climb ramps or stairs and occasionally climb ladders, ropes, or scaffolds. (Id.) The individual could perform simple repetitive tasks in an environment where changes are infrequent and explained, and there is no requirement to meet strict production quotas or maintain a rapid pace. (Id.) The individual could maintain sufficient attention and concentration for simple tasks with regular breaks. (Id.) Additionally, the individual would be limited to work involving simple tasks that do not require much reading, writing, or complex computations. (Tr. 55.) The VE testified that the hypothetical individual would be capable of performing such jobs as an electronic assembler, a final assembler, and a hand packager. (Id.)
A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process.
The ALJ made the following findings of fact and conclusions of law:
(Tr. 20-29.)
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.
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.
Plaintiff argues that the ALJ erred in finding that she did not meet Listing 12.05(C). 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:
Id. In other words, in order to satisfy the requirements of the Listing, an individual must, first, demonstrate the onset of the deficits described in the diagnostic description prior to age 22, and, second, satisfy the requirements of any one of the four subsections. See Hayes v. Comm'r of Soc. Sec., 357 F. App'x 672, 676 (6th Cir. 2009) (noting that an IQ below 70 was not sufficient on its own to satisfy Listing 12.05, as the claimant must "still satisfy the three-prong definition of mental retardation" and one of the subsections).
As relevant to this case, an individual may satisfy the requirement of subsection (C) by demonstrating a "valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant workrelated limitation of function."
Here, the ALJ determined that Plaintiff did not meet the criteria of Section 12.05(C), identifying two bases for his conclusion: First, the ALJ observed that no acceptable medical source has diagnosed Plaintiff with mental retardation. (Tr. 21.) Instead, the ALJ noted, both consultative psychological examiners who evaluated Plaintiff in connection with her disability applications have offered a diagnosis of borderline intellectual functioning with global assessment of functioning (GAF)
While the ALJ does not explicitly acknowledge that Plaintiff meets the IQ requirement and the significant limitation requirement of Section 12.05(C), he does not appear to take issue with Plaintiff's satisfaction of those requirements. Rather, the ALJ concludes that Plaintiff does not meet Listing 12.05 because she does not satisfy the diagnostic requirement. Furthermore, in her Brief on the Merits, the Commissioner does not challenge the validity of Plaintiff's IQ scores, nor does she attempt to argue that Plaintiff fails to meet the significant limitation requirement. Indeed, Plaintiff has met her burden of showing that she meets the IQ requirement
Substantial evidence supports the ALJ's conclusion that Plaintiff does not satisfy the threshold diagnostic description of the Listing 12.05, as she cannot establish the "significant sub-average general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period" required by that description. "Adaptive functioning includes a claimant's effectiveness in areas such as social skills, communication, and daily living skills."
(Tr. 21.)
The ALJ discussed specific reasons for his finding that Plaintiff did not exhibit deficits in adaptive functioning
The ALJ made a clear finding, supported by substantial evidence in the record, regarding whether Plaintiff met the diagnostic requirement of Listing 12.05, offering several reasons for his conclusion that Plaintiff's "deficits in adaptive functioning are not as severe as alleged and therefore she does not meet or medically equal the requirements of section 12.05(C)." (Tr. 21.) Accordingly, the Court has been able to adequately review the ALJ's determination that Plaintiff did not satisfy the listing. For the foregoing reasons, Plaintiff's assignment of error does not entitle her to remand.
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.