ELLEN S. CARMODY, Magistrate Judge.
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act. Section 405(g) limits the Court to a review of the administrative record, and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of social security appeals, the undersigned recommends that the Commissioner's decision be
The Court's jurisdiction is confined to a review of the Commissioner's decision and of the record made in the administrative hearing process. See Willbanks v. Sec'y of Health and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec'y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Dep't of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec'y of Health and Human Services, 735 F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, the substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 10 years of age on his alleged disability onset date. (Tr. 23-25). He successfully completed high school, but has no past relevant work experience. (Tr. 30). Plaintiff applied for benefits on August 5, 2009, alleging that he had been disabled since November 1, 2001, due to ADHD, depression, anger problems, and mood swings. (Tr. 23, 168). Plaintiff's applications were denied, after which time he requested a hearing before an Administrative Law Judge (ALJ). (Tr. 61-136). On July 18, 2011, Plaintiff appeared before ALJ Deborah Rose with testimony being offered by Plaintiff, Plaintiff's father, and a vocational expert. (Tr. 36-60). In a written decision dated November 16, 2011, the ALJ determined that Plaintiff was not disabled. (Tr. 23-31). The Appeals Council declined to review the ALJ's determination, rendering it the Commissioner's final decision in the matter. (Tr. 1-6). Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ's decision.
On May 21, 2003, Social Worker Allene Tucker completed a School Social Work Report in which she concluded as follows:
(Tr. 224-26).
On January 10, 2006, Plaintiff was examined by Patricia Decker, Ph.D. (Tr. 220-23). Plaintiff participated in cognitive testing the results of which revealed that he possessed a verbal IQ of 84, a performance IQ of 82, and a full scale IQ of 82, all of which were characterized as "low average." (Tr. 220). Plaintiff also was administered the Woodcock-Johnson Test of Achievement which measured Plaintiff's ability in reading and mathematics. (Tr. 222-23). Plaintiff's performance, relative to his peers, was as follows: (1) 16th percentile in Letter Word Identification; (2) 5th percentile in Passage Comprehension; (3) 17th percentile in Math Calculations; and (4) 25th percentile in Applied Problems. (Tr. 223). The examiner also observed the following:
(Tr. 223).
The examiner further noted:
(Tr. 222).
Dr. Decker concluded that "Austin's scores do not meet the eligibility requirements for services under the category of learning disability." (Tr. 221).
Treatment notes dated April 3, 2008, indicate that Plaintiff was participating in a "sports physical" because "he will be participating in track and shot put." (Tr. 212).
On April 16, 2009, Plaintiff was evaluated by Dr. Decker. (Tr. 229-30). The doctor concluded as follows:
(Tr. 229).
In April 2009, Social Worker Kathryn Sanchez completed a "work evaluation summary" to assess whether Plaintiff "continues to qualify for special education services as a student with an Emotional Impairment." (Tr. 232-36). With respect to Plaintiff's academic performance, Sanchez observed:
(Tr. 236).
With respect to her interview of Plaintiff, Sanchez reported as follows:
(Tr. 234-35).
Sanchez also observed Plaintiff on two occasions in classroom settings. (Tr. 233). With respect to these observations, Sanchez reported as follows:
(Tr. 233).
Sanchez also elicited input from two of Plaintiff's teachers who reported the following:
(Tr. 232).
Sanchez concluded her evaluation as follows:
(Tr. 232).
On September 19, 2009, Lisa Clark completed a report regarding Plaintiff's activities. (Tr. 159-66). Clark reported that Plaintiff watches television, plays video games, prepares meals, performs chores around the house and yard, and shops. (Tr. 159-66).
On October 26, 2009, Plaintiff participated in a consultive examination conducted by J. Keith Ostien, Ph.D. (Tr. 258-62). Plaintiff participated in cognitive testing the results of which revealed that he possessed a verbal IQ of 74, a performance IQ of 68, and a full scale IQ of 69. (Tr. 259). Plaintiff also participated in the Wide Range Achievement Test — 4 the results of which revealed that he has "borderline academic skills in reading and spelling, and diminished skills in arithmetic." (Tr. 260). The doctor further noted, however, that during this evaluation Plaintiff was experiencing a significant amount of "emotional distress" which "influenced his focus and concentration." (Tr. 259). The doctor concluded that "it is not known to what extent his emotional distress may have adversely affected his performances on the standardized tests." (Tr. 259). The results of a mental status examination revealed the following:
(Tr. 261).
Plaintiff was diagnosed with: (1) major depressive disorder, recurrent, severe; (2) attention deficit hyperactivity disorder, inattentive type; (3) avoidant personality disorder; and (4) borderline intellectual functioning. (Tr. 262). The doctor concluded that Plaintiff "probably would have difficulty in job settings in which more complex academic skills were required," but could function "in vocational settings in which very basic academic skills were utilized." (Tr. 260).
School progress notes dated November 13, 2009, state that "Austin struggled with HVAC early, a class he was placed in because auto body was full, but recently has been an exemplary student." (Tr. 244). School progress notes dated March 2, 2009, indicate "Austin continues to excel in his HVAC course" and "is on track to receive some college credit for his success." (Tr. 244).
Under the Social Security Act (the Act) there exist two separate and distinct programs pursuant to which a disabled individual may obtain benefits. Title II of the Act creates the Disability Insurance Benefit (DIB) program whereas Title XVI of the Act creates the Supplemental Security Income (SSI) program. To be eligible for DIB, a claimant must be "insured for disability insurance benefits," and establish that he became disabled prior to the expiration of his insured status. See, e.g., Tillackdharry v. Barnhart, 2006 WL 903191 at *4 (S.D.N.Y., April 10, 2006) (citing 42 U.S.C. § 423). A claimant's "insured status" is calculated using a system of "quarters of coverage" ("QC"), with each quarter defined as three calendar months. See Tillackdharry, 2006 WL 903191 at *4 (citing 42 U.S.C. § 423(c)(1)(B) and 20 C.F.R. § 404.102). A claimant is credited with quarters of coverage based on wages or self-employment income earned during the calendar years he has worked. See Tillackdharry, 2006 WL 903191 at *4 (citing 20 C.F.R. § 404.130). To be eligible for DIB benefits, a claimant must have accumulated at least 20 quarters of coverage during the 40 quarter (ten year) period ending with the quarter in which benefits are sought. See Tillackdharry, 2006 WL 903191 at *4 (citing 20 C.F.R. § 404.130(b)). On the other hand, eligibility for SSI benefits considers a claimant's financial need and his income may not exceed specified dollar amounts. See Tillackdharry, 2006 WL 903191 at *4 (citing 42 U.S.C. § 1382(a)).
As noted above, Plaintiff applied for benefits under both Title II and Title XVI. Because of his age and work history, Plaintiff does not qualify for traditional Title II benefits. Plaintiff instead filed for Child's Benefits under Title II pursuant to which eligibility is based upon the earnings record of an eligible parent. See 20 C.F.R. § 404.350(a). Plaintiff is entitled to child's benefits if he is "18 years or older and ha[s] a disability that began before [he] became 22 years old." 20 C.F.R. § 404.350(a).
The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).
The burden of establishing the right to benefits rests squarely on Plaintiff's shoulders, and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable to perform his previous work, and cannot, considering his age, education, and work experience, perform any other substantial gainful employment existing in significant numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of proof through step four of the procedure, the point at which his residual functioning capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffers from: (1) major depressive disorder; (2) attention deficit hyperactivity disorder; (3) avoidant personality disorder; and (4) borderline intellectual functioning, severe impairments that whether considered alone or in combination with other impairments, failed to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Tr. 25-27). The ALJ next determined that Plaintiff retained the capacity to perform work at all exertional levels subject to the following limitations: (1) he is limited to simple routine tasks; (2) he can perform work with superficial and incidental interaction with co-workers, supervisors, and the public, but should avoid work where he would have to complete tasks in tandem with others or as part of a team. (Tr. 27).
The ALJ found that Plaintiff had no past relevant work at which point the burden of proof shifted to the Commissioner to establish by substantial evidence that a significant number of jobs exist in the national economy which Plaintiff could perform, his limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational expert on this issue, "a finding supported by substantial evidence that a claimant has the vocational qualifications to perform
The vocational expert asserted that there existed in the state of Michigan at least 47,000 jobs which an individual with Plaintiff's RFC could perform, such limitations notwithstanding. (Tr. 57-58). This represents a significant number of jobs. See Born v. Sec'y of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed. Appx. 369, 374 (6th Cir., Mar. 1, 2006). The ALJ concluded, therefore, that Plaintiff was not entitled to disability benefits.
In his appeal, Plaintiff asserts that the ALJ improperly rejected the opinions of one of his treating physicians. (Dkt. #17 at 13-14). Plaintiff, who is represented by counsel, has also asserted the nebulous claim that "the ALJ's decision is not supported by substantial evidence." (Dkt. #17 at 11-13). While this argument is quite poorly developed, it appears that Plaintiff is arguing that he satisfies the requirements of a Listed Impairment, specifically Listing 12.05C. This determination is based on the fact that the only authority cited by Plaintiff in this portion of his brief is Listing 12.00 and, furthermore, by the fact that Plaintiff elsewhere in his brief argues that he satisfies "the first prong of the criteria for Listing 12.05C." (Dkt. #17 at 7, 11-13).
Section 12.05 of the Listing provides, in relevant part, the following:
20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.05.
Plaintiff argues that he satisfies sections 12.05(C). Testing performed in October 2009 revealed that Plaintiff possessed a verbal IQ of 74, a performance IQ of 68, and a full scale IQ of 69. As noted above, however, the validity of these results was called into question by the examiner. Previous cognitive testing revealed that Plaintiff possessed a verbal IQ of 84, a performance IQ of 82, and a full scale IQ of 82. In addition to finding that Plaintiff suffers from borderline intellectual functioning, the ALJ also found that Plaintiff suffers from emotional impairments which impose "additional and significant work-related" limitations.
Even if the Court assumes that Plaintiff satisfies the criteria articulated in subsection (C) (e.g., scores between 60-70 on an IQ test), Plaintiff must also satisfy the requirements articulated in the introductory paragraph of Section 12.05. 20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.00(A) ("[i]f your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets" section 12.05). Specifically, Plaintiff must establish that he satisfied the "diagnostic description" of mental retardation articulated in the introductory paragraph of Section 12.05. Cooper v. Commissioner of Social Security, 217 Fed. Appx. 450, 451 (6th Cir., Feb. 15, 2007); see also, Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (to satisfy Section 12.05, the claimant must demonstrate that he experienced deficiencies in adaptive functioning prior to attaining the age of 22).
While the record suggests that Plaintiff, when he was younger, experienced certain emotional difficulties, the record also reveals that Plaintiff's difficulties in this regard lessened over time. Moreover, the record does not indicate that Plaintiff's emotional difficulties were ever of Listing level severity. In short, the record does not support the argument that Plaintiff experienced deficiencies in adaptive behavior or suffered from mental retardation prior to the age of 22 or at anytime after age 22.
Neither Plaintiff's care providers nor any of the medical professionals who examined the record in this case concluded that Plaintiff was mentally retarded or satisfied the "diagnostic description" of mental retardation articulated in the introductory paragraph of Section 12.05. Instead, as the ALJ concluded, Plaintiff appears to experience borderline intellectual functioning. As the Sixth Circuit has observed, a diagnosis of borderline intellectual functioning is inconsistent with a diagnosis of mental retardation and, therefore, precludes a finding that the requirements of Section 12.05 have been met. See Cooper, 217 Fed. Appx. at 451.
Plaintiff's reported activities (e.g., playing sports, taking college level courses, watching television, playing video games, performing household chores, and shopping) likewise fail to support the argument that he suffers from mental retardation. See, e.g., Burrell v. Comm. of Soc. Sec., 2000 WL 1827799 at *2 (6th Cir., Dec. 8, 2000) (no evidence of a deficit in adaptive functioning where claimant "remained fairly active, maintains an interest in his household, and enjoys apparent satisfactory relationships with family members").
The burden rests with Plaintiff to demonstrate that he satisfies the requirements of a listed impairment. See Kirby v. Comm'r of Soc. Sec., 2002 WL 1315617 at *1 (6th Cir., June 14, 2002). The ALJ evaluated the evidence of record and determined that Plaintiff failed to meet his burden in this regard. The ALJ's decision is supported by substantial evidence.
Plaintiff next asserts that he is entitled to relief because "the ALJ rejected all of Dr. Ostein's opinion as to [Plaintiff's] limitations." (Dkt. #17 at 13). Specifically, Plaintiff asserts that the ALJ failed to afford sufficient weight to Dr. Ostein's conclusions that Plaintiff "would have severely impaired capabilities to interact appropriately and effectively with co-workers and supervisors and to adapt to changes in a work setting." (Dkt. #17 at 13-14).
First, because Dr. Ostein examined Plaintiff on only one occasion his opinions are not entitled to any particular deference. See, e.g., Kornecky v. Commissioner of Social Security, 167 Fed. Appx. 496, 506-07 (6th Cir. 2006). Second, the doctor's opinion that Plaintiff's ability to interact with co-workers and supervisors and to adapt to changes in a work setting is "severely impaired" is insufficiently vague. The ALJ likewise recognized that Plaintiff experienced limitations in these areas and crafted his RFC accordingly. The ALJ's RFC assessment is supported by substantial evidence and it is not clear from the record that Dr. Ostein's opinion is inconsistent with the ALJ's RFC determination. Finally, the ALJ considered Dr. Ostein's findings and discounted such on the ground that they were inconsistent with Plaintiff's reported activities and treatment history, a determination likewise supported by substantial evidence. In sum, the ALJ's assessment and evaluation of Dr. Ostein's opinion is supported by substantial evidence.
For the reasons articulated herein, the undersigned concludes that the ALJ's decision adheres to the proper legal standards and is supported by substantial evidence. Accordingly, it is recommended that the Commissioner's decision be
OBJECTIONS to this report and recommendation must be filed with the Clerk of Court within fourteen (14) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within such time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
2. An individual who does not have a "severe impairment" will not be found "disabled" (20 C.F.R. 404.1520(c));
3. If an individual is not working and is suffering from a severe impairment which meets the duration requirement and which "meets or equals" a listed impairment in Appendix 1 of Subpart P of Regulations No. 4, a finding of "disabled" will be made without consideration of vocational factors (20 C.F.R. 404.1520(d));
4. If an individual is capable of performing work he or she has done in the past, a finding of "not disabled" must be made (20 C.F.R. 404.1520(e));
5. If an individual's impairment is so severe as to preclude the performance of past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed (20 C.F.R. 404.1520(f)).
