KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff Dora Duck ("Plaintiff" or "Duck") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).
For the reasons stated below, the undersigned recommends that the Commissioner's decision be
As discussed more fully below, this case comes to this Court following an administrative hearing held and decision issued after a remand by the Appeals Council. On June 8, 2006, and June 27, 2006, Duck filed applications for DIB and SSI. Tr. 147-50, 219-226. In her applications, Duck alleged a disability onset date of December 20, 2002. Tr. 219, 224, 264. She alleged disability based on Graves disease
On March 10, 2009, an administrative hearing was held. Tr. 95-146. On May 27, 2009, the Administrative Law Judge ("ALJ") issued a decision wherein she determined that Duck had not been under a disability from December 20, 2002, through the date of her decision. Tr. 151-62. Duck requested review of the May 27, 2009, ALJ decision and, on July 28, 2010, the Appeals Council vacated the hearing decision and remanded Duck's case for further administrative proceedings. Tr. 163-66. The Appeals Council remanded the case for further evaluation of Plaintiff's mental impairments; further consideration of Plaintiff's maximum residual functional capacity; re-evaluation of Plaintiff's past work and whether it could be considered past relevant work; and, if warranted, further vocational expert testimony to clarify the effect of the assessed limitations on the Plaintiff's occupational base. Tr. 164-66.
Following the Appeals Council's remand order, a second administrative hearing was held before another ALJ on August 2, 2011. Tr. 33-94. In his August 26, 2011, decision, the ALJ determined that Duck had not been under a disability from December 20, 2002, through the date of his decision. Tr. 10-32. Duck requested review of the August 26, 2011, decision by the Appeals Council. Tr. 6-9. On October 19, 2012, the Appeals Council denied Duck's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-5.
Plaintiff was born on October 5, 1966. Tr. 219. She took special education classes through the ninth grade.
In 2001, 2002 and 2003, Duck was periodically seen at the offices of Susan Hake, M.D., for treatment of her hypothyroidism. Tr. 373. In 2006, Dr. Hake reported that her last recorded visit with Duck was on April 22, 2003. Tr. 373. Dr. Hake was unable to comment on Duck's then current abilities or disabilities. Tr. 373. Treatment records reflect that, thereafter, in 2003 through 2006, Duck treated with providers at Family Practice of Doctors Hospital for her thyroid condition and other ailments, such as pressure in her ears, sore throat, and a rash. Tr. 343-62.
In 2005, Duck attended two counseling sessions with Trillium Family Solutions but then withdrew from treatment. Tr. 321-41, 339. During intake, Duck reported difficulties, including appetite and sleep disturbance, preoccupation around her impending divorce and custody battle, and her children acting out. Tr. 330. When closing Duck's file, a therapist with Trillium Family Solutions noted that Duck's primary concern related to her son, who was struggling with substance abuse. Tr. 340-41.
Duck treated with providers at Mercy Medical Center in 2007 and 2008. Tr. 409. On January 16, 2008, Duck sought treatment at Mercy Medical Center, requesting that her thyroid be checked because she had had some hoarseness in her voice and a sore throat for approximately six weeks. Tr. 402-04. She was also concerned about depression and anxiety. Tr. 402-04. During that visit, Teri Sanor, M.D., and Kathleen Ann Senger, M.D., treated Duck. Tr. 404. They assessed Duck with hypothyroidism and, following a recheck of her TSH levels, they planned to adjust Duck's medication. Tr. 404. They also assessed her with depression and anxiety and prescribed Zoloft, noting it had been effective but Duck had run out of the medication. Tr. 404. The doctors discussed the benefits of counseling but Duck was not interested in counseling at that time. Tr. 404.
Also, during 2008, Duck treated with Affinity Medical Center for her hypothyroidism. Tr. 421-28. On July 31, 2008, a sonogram was performed of Duck's thyroid. Tr. 429-30. The sonogram revealed a "small thyroid with an incidental tiny cyst involving the superior portion of the left lobe of the thyroid." Tr. 430. No other abnormalities were noted.
In September 2010, Duck switched providers from Affinity Medical Center to Aultman Physician Center. Tr. 448. She continued to treat with Aultman Physician Center through April 14, 2011. Tr. 445-47. On September 13, 2010, Duck saw Dr. Jigna Janani and Dr. Richard Ziegler with the Aultman Physician Center for follow-up on her hypothyroidism. Tr. 448-49. The physicians noted that Duck had hypothyroidism and that her recent blood work came back showing a normal TSH level. Tr. 449. On November 11, 2010, Duck saw Drs. Janani and Narayanan for a pre-employment physical. Tr. 446-47. They indicated that she had recently found a job at a daycare center and noted that Duck was "doing great." Tr. 446-47. Drs. Janani and Narayanan also noted that Duck had been very compliant with her thyroid medication and a review of her systems was completely negative. Tr. 446. On April 14, 2011, Duck again sought treatment at Aultman Physician Center. Tr. 444-45. She complained of left shoulder pain which she reported having had for the 2 prior years. Tr. 444. She denied any depression but indicated that she was experiencing a lot of stress with her ex-boyfriend. Tr. 444. Duck was advised to take Naproxen twice a day for her shoulder pain and to apply heat. Tr. 444. Because her thyroid condition was stable, she was advised to stay on the same regimen. Tr. 444. She was counseled on forms of abuse and advised to seek counseling or to contact her physicians immediately if she needed help. Tr. 444-45.
On August 14, 2006, James M. Lyall, Ph.D., ABPN, conducted a consultative examination. Tr. 365-71. Dr. Lyall administered the Wechsler Adult Intelligence Scale — Third Edition (WAIS-III).
Dr. Lyall opined that Duck's scores put her in the borderline range of intelligence with equally poor reading and math skills. Tr. 369. He noted that she has a history of depressive difficulties and reported current symptoms of depression without continuing treatment. Tr. 369. Dr. Lyall's diagnoses included major depressive disorder, recurrent, moderate and borderline intellectual functioning. Tr. 369. Dr. Lyall indicated that Duck has both physical and intellectual psychological stressors. Tr. 369. He also noted that Duck reported a history of Grave's disease and was taking medication for that condition. Tr. 368, 369. While noting that Duck's functional impairment fell at a GAF of 60, when taking into account her depressive symptoms, Dr. Lyall assessed her with a GAF of 55.
He opined that Duck's: (1) ability to relate to others, including fellow workers and supervisors, is mildly to moderately impaired by her borderline intelligence and social withdrawal; (2) ability to understand and follow instructions is moderately impaired by her borderline intellectual functioning; (3) ability to maintain attention and perform simple repetitive tasks is mildly to moderately impaired; and (4) ability to withstand the stress and pressure associated with day-to-day work activity is moderately impaired. Tr. 369. Dr. Lyall indicated that Duck would have difficulty in jobs that require reading skills or good math ability and would have difficulty understanding complex directions upon initial presentation. Tr. 369.
On August 28, 2006, Kristen Haskins, Psy.D., completed a Mental RFC (374-77) and a Psychiatric Review Technique (Tr. 378-91). Dr. Haskins found that Duck is moderately limited in the following six categories: (1) ability to understand and remember detailed instructions; (2) ability to carry out detailed instructions; (3) ability to maintain attention and concentration for extended periods; (4) ability to 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; (5) ability to interact appropriately with the general public; and (6) ability to accept instructions and respond appropriately to criticism from supervisors. Tr. 374-75. Of the remaining 14 categories, including the ability to understand, remember and carry out very short and simple instructions, Dr. Haskins found that Duck was not significantly limited. Tr. 374. Dr. Haskins opined that Duck "retains the ability to understand and recall simple tasks in a work environment without a lot of social interaction." Tr. 376. Since there was no treating source, Dr. Haskins gave controlling weight to Dr. Lyall's consultative examination report and she also concluded that Duck's allegations were not fully supported by the objective medical evidence of record and, thus, considered Duck's allegations to be only partially credible. Tr. 376.
In the Psychiatric Review Technique, Dr. Haskins indicated that Duck suffers from major depressive disorder, recurrent, moderate and has borderline intellectual functioning. Tr. 381, 382. However, she opined that neither of those conditions satisfied a Listing. Tr. 381, 382. In assessing the "B" criteria of the Listings, Dr. Haskins also opined that Duck has mild limitations in her activities of daily living and moderate limitations in maintaining social functioning and in maintaining concentration, persistence or pace, with no episodes of decompensation. Tr. 388.
On October 3, 2006, Murrell Henderson, D.O., conducted a consultative examination. Tr. 394-99. Dr. Henderson's impression following his examination of Duck was hypothyroidism, by history; suspect history of hyperthyroidism; and inconsistent findings in sensory discrimination at the upper and lower extremities. Tr. 395. He opined that Duck "has no difficulty in communication, has normal hearing, speech, and vision. Carrying moderate weight [for] moderate distances does not appear to be problematic. Fine coordination is normal in both upper extremities. She does not appear to have any problems with ambulation and transportation does not appear to be problematic." Tr. 395.
On July 17, 2006, Duck completed a Function Report wherein she described her daily activities and abilities. Tr. 267-74. She has no problems with personal care. Tr. 269. However, sometimes she needs reminders to take her medication. Tr. 269. She drives and is able to go out alone. Tr. 270. She goes outside three times each day. Tr. 270. She sometimes needs assistance with shopping because she becomes overwhelmed when around people. Tr. 270. She takes care of her children; does laundry and household chores daily; cooks simple meals; and can pay bills, count change, and handle bank accounts.
She spends time with family but, because of her mood swings, has problems getting along with others, including authority figures. Tr. 271, 273. She does not like to work with others. Tr. 273. She lacks focus, is easily distracted, and quickly forgets things. Tr. 272, 273. If shown how to do something, she can follow spoken, but not written, instructions. Tr. 273.
Duck was represented by counsel at the administrative hearing on August 2, 2011.
She is not receiving any mental health treatment and has not been treated in the emergency room for mental health issues. Tr. 60-61. She has never required treatment in the hospital for more than a day. Tr. 61. She does not take any medication for mental health issues. Tr. 62.
Duck discussed her past employment and indicated that she quit or was fired from a number of different jobs for various reasons, including lack of transportation (Tr. 75), lack of childcare (Tr. 71, 72, 73, 74), a lack of training and/or an inability to learn certain jobs and making mistakes at jobs
Duck stated that her ex-boyfriend assisted her with completing her social security applications. Tr. 79. He read the questions to her and wrote down the answers that she provided. Tr. 79. She stated that she cannot understand a whole newspaper article. Tr. 79.
Vocational Expert Mr. Masey ("VE") testified at the hearing. Tr. 81-93. The VE stated that Duck's past work included work as a cleaner and groundskeeper, stocker and cashier. Tr. 81-82. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, past work experience, and education with certain restrictions. Tr. 82-84. The ALJ indicated that, for the education level, the VE should assume word reading with a grade equivalent of 3.0; sentence comprehension with a grade equivalent of 5.2; spelling with a grade equivalent of 2.8; and math computation with a grade equivalent of 3.7.
The VE indicated that the hypothetical individual would be able to perform the cleaner portion of Duck's past work as a cleaner/groundskeeper as the cleaner job is generally performed by employees.
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined as the "inability to engage in any 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." 42 U.S.C. § 423(d)(1)(A). Furthermore:
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
20 C.F.R. §§ 404.1520, 416.920;
In his August 26, 2011, decision, the ALJ made the following findings:
Based on the foregoing, the ALJ determined that Duck had not been under a disability from December 20, 2002, through the date of the decision. Tr. 27.
First, Plaintiff argues that the ALJ erred in not concluding that her impairments equaled Listing 12.05C.
Second, Plaintiff argues that the ALJ erred in his determination of her mental RFC. Doc. 17, pp. 14-16. She argues that, although the ALJ did take into account her limited intellectual functioning when assessing her mental RFC, the evidence supports a more restrictive mental RFC. Doc. 17, pp. 15-16. Duck requests a remand for proper consideration of the evidence in assessing her mental RFC. Doc. 17, p. 16.
In response, the Commissioner first argues that Duck does not meet or equal Listing 12.05C. Doc. 18, pp. 8-10. Defendant asserts that Plaintiff has failed to support her argument with a medical opinion showing that her impairment equals a Listing. Doc. 18, pp. 8-10. Further, Defendant asserts that at least two medical opinions in the record
Second, the Commissioner argues that the ALJ properly formulated Duck's RFC and accounted for her limited intellectual functioning. Doc. 18, pp. 10-11.
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "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." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). A court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Listing 12.05 relates to mental retardation. To qualify as disabled under that Listing, a claimant needs to satisfy
The additional Subpart C criteria are:
20 C.F.R. Part 404, Subpt. P, App. 1, Listing §12.05C.
Because Duck has a full scale IQ of 72, she acknowledges that she does not meet Listing 12.05C. Doc. 17, pp. 12-13. However, she argues that, "when considering her IQ of 72 aside her significantly deficient reading and writing abilities, she equals [the C criteria of] Listing 12.05C." Doc. 17, pp. 13-14 (emphasis supplied) (relying on Social Security Administration Program Operations Manual System ("POMS") § DI 24515.056 which provides "slightly higher IQ's (e.g., 70-75) in the presence of other physical or mental disorders that impose additional and significant work-related limitation of function may support an equivalence determination.").
Duck bears the burden of producing evidence that her impairment equals a Listing; "[s]he must present medical findings equal in severity to all the criteria for the one most similar to the listed impairment." Sullivan v. Zelby, 493 U.S. 521, 531 (1990); see also POMS § DI 24515.056 ("a decision of medical equivalence will be based only on medical evidence that is supported by medically acceptable clinical and laboratory diagnostic techniques."); see also Byrne v. Astrue, 2012 WL 5988639, * 13 (S.D. Ohio Nov. 29, 2012), report and recommendation adopted by, 2013 WL 26124 (S.D. Ohio Jan. 2, 2013) ("[m]edical equivalence must be supported by medically acceptable clinical and laboratory diagnostic techniques") (internal quotations and citations omitted); see also Jefferson v. Astrue, 2012 WL 4364247, * 7 (S.D. Ohio Sept. 24, 2012), report and recommendation adopted by, 2012 WL 5512355 (S.D. Ohio Nov. 14, 2012). Duck has failed to identify any medical opinion demonstrating that her impairment equals Listing 12.05C. Accordingly, Duck's claim that the ALJ erred in not finding medical equivalence with the C criteria fails. See Jefferson, 2012 WL 4364247, * 7 (claimant failed to carry his burden of demonstrating medical equivalence where he failed to identify a medical opinion showing his impairment equaled Listing 12.05C).
Plaintiff's attempt to show that she meets the diagnostic criteria of Listing 12.05C also fails. To show that she satisfies the diagnostic criteria of Listing 12.05C, Plaintiff points to records that show enrollment in special education classes and mostly failing grades. However, she does not identify diagnoses of mental retardation before or after age 22. Moreover, both consultative physician Dr. Lyall and state reviewing physician Dr. Haskins concluded that Duck suffered from borderline intellectual functioning, not mental retardation. Tr. 369, 382. Although Listing 12.05 does not specifically require a diagnosis of mental retardation, a diagnosis of borderline intellectual functioning is relevant in determining whether a claimant satisfies the diagnostic criteria under Listing 12.05. See Cooper v. Comm'r of Soc. Sec., 217 Fed Appx. 450, 452 (6
Based on the foregoing, Plaintiff failed to meet her burden of showing medical equivalence. Moreover, substantial evidence, including the medical opinions of Dr. Lyall and Dr. Hasksins, supports the ALJ's finding that Duck's impairment neither meets nor equals Listing 12.05C.
The regulations make clear that a claimant's RFC is an issue reserved to the Commissioner and the ALJ assesses a claimant's RFC "based on all of the relevant medical and other evidence" of record. 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c), 404.1527; see also Coldiron v. Comm'r of Soc. Sec., 391 Fed. Appx. 435, 439 (6th Cir. 2010) ("The Social Security Act instructs that the ALJ — not a physician — ultimately determines a Plaintiff's RFC."); Poe v. Comm'r of Soc. Sec., 342 Fed. Appx. 149, 157 (6th Cir. 2009) ("an ALJ does not improperly assume the role of a medical expert by assessing the medical and non-medical evidence before rendering a residual functional capacity finding").
Duck acknowledges that the ALJ did take her limited intellectual functioning into account when assessing her mental RFC. Doc. 17, p. 15. However, she argues that, based on her intellectual difficulties, the ALJ should have found an even more restrictive mental RFC. Doc. 17, p. 15. As it relates to her mental RFC, the ALJ determined that:
Tr. 19-25.
In an attempt to show that a more restrictive RFC is warranted, Plaintiff cites to various pieces of evidence, including her full scale IQ score, WRAT-4 testing results, special education classes, difficulties at past jobs, etc. Doc. 17, p. 15. However, she fails to indicate what additional limitations should have been assessed based on that evidence. Doc. 17, p. 17. Without further articulation, this argument is waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). ("It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones."); see also Ehrhart v. Sec'y of Health & Human Servs., 969 F.2d 534, 537 n. 5 (7th Cir. 1992) (applying waiver rule because judges need not devote time to "discussion of argument, raised if at all, `in a very opaque manner.'").
Moreover, even if not waived, Duck fails to show that the ALJ's decision is not supported by substantial evidence. To the contrary, the ALJ assessed Duck's RFC based on all relevant evidence and his determination of her RFC is supported by substantial evidence. Duck argues that the ALJ did not adequately discuss certain evidence relating to her limited intellectual functioning. Doc. 17, p. 15. However, evidence noted by Duck was considered and discussed by the ALJ. For example, when concluding that Duck was moderately impaired in concentration, persistence or pace, the ALJ considered the fact that Duck reported an inability to focus and also noted that Duck testified that her most significant problem impacting her ability to work was related to her difficulty focusing. Tr. 18, 20. The ALJ discussed Duck's IQ scores as well as the WRAT-4 scores. Tr. 22. He discussed the fact that she reported receiving grades in the D and F range, that she was in special education classes, and that she only completed the 9th grade. Tr. 22. He noted that Duck indicated that she cannot read or understand a newspaper and that her boyfried had to assist her with completing her social security application. Tr. 20, 22. He indicated that Dr. Henderson opined that Duck had no difficulty in communication. Tr. 23, 395. Relative to her past work, the ALJ noted and considered Duck's testimony wherein she indicated that she had trouble learning how to complete job duties and he also considered her testimony that she was unable to sustain work because of babysitting and transportation issues. Tr. 20, 24.
The ALJ clearly considered evidence relating to Duck's limited intellectual functioning and accounted for those limitations in the RFC. For example, among other limitations, the RFC limited Duck to simple routine, repetitive tasks involving only simple work-related decisions, and in general, relatively few workplace changes. Tr. 19. Since the ALJ's RFC determination is supported by substantial evidence and since Duck has failed to demonstrate that the ALJ did not consider or properly account for her limited intellectual functioning, reversal of the Commissioner's decision is not warranted.
For the foregoing reasons, the undersigned recommends that the Commissioner's decision be
