Joseph Peterson v. Comm'r of Social Security ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0052n.06
Case No. 13-5841 FILED
Jan 21, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH PETERSON, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
COMISSIONER OF SOCIAL SECURITY, ) KENTUCKY
)
Defendant-Appellee. ) OPINION
)
BEFORE: COLE, GILMAN, and DONALD, Circuit Judges.
Bernice B. Donald, Circuit Judge. Joseph Peterson appeals the district court’s grant of
summary judgment to Appellee, the Commissioner of Social Security (“Commissioner”), in this
42 U.S.C. § 405(g) suit challenging the Commissioner’s final decision denying Peterson’s
application for Supplemental Security Income (“SSI”) under the Social Security Act (“the Act”).
Peterson contends that the Administrative Law Judge (“ALJ”) who reviewed his case erred in
finding that he was “not disabled” and therefore not entitled to benefits, and that the district court
erred in finding that the Commissioner’s conclusion adopted from the ALJ was supported by
substantial evidence. In particular, Peterson argues that the ALJ should have found that he was
disabled because he has a mental impairment under 20 C.F.R. Pt. 404, Subpt. P, App’x 1
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§ 12.05C. Because the Commissioner’s decision is supported by substantial evidence, we
AFFIRM the district court’s grant of summary judgment to the Commissioner.
I.
On August 1, 2007, Peterson, a resident of Eubank, Kentucky, filed an application for
SSI, claiming that he became disabled on June 4, 2004. In his disability report, Peterson claimed
that he was disabled because of “nerves,” blindness in his left eye, and lower-back problems.
The Social Security Administration denied Peterson’s claim both initially and on reconsideration.
ALJ William Newkirk then held a hearing regarding Peterson’s disability status before issuing a
decision denying Peterson’s claim on July 10, 2009. Peterson did not claim any form of
intellectual impairment either in his disability report or in his hearing before ALJ Newkirk. On
Peterson’s request for review, the Appeals Council vacated ALJ Newkirk’s decision and
remanded his case.
On remand, a new ALJ, William Zuber, held a hearing on May 17, 2010, and issued a
new decision on September 9, 2010, again denying Peterson’s claim. On May 31, 2012, the
Appeals Council denied Peterson’s request for review, thereby making ALJ Zuber’s decision the
final decision of the Commissioner. Peterson then sought judicial review of the Commissioner’s
final decision under 42 U.S.C. § 405(g). After both Peterson and the Commissioner moved for
summary judgment, the district court referred the matter to a magistrate judge, who issued a
Report and Recommendation (“R&R”) on February 5, 2013. The R&R recommended affirming
the Commissioner’s final decision. Over Peterson’s objections, the district court adopted the
R&R and affirmed the Commissioner’s decision. This appeal ensued. Because Peterson’s
appeal only challenges the ALJ’s finding regarding Listing 12.05C, the intellectual ability listing,
our review of the relevant facts focuses on this area.
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A.
Peterson was forty-eight years old when ALJ Zuber issued his September 2010 decision.
He has a seventh-grade education and previously worked as a construction laborer. During his
hearing and in his work report, Peterson claimed to be unable to read or write. In his disability
report, however, he indicated that he could read and understand English and that he could write
more than his name; similarly, his school records reflect that in 1978, when he was sixteen,
Peterson could read at a fifth-grade level. These same records from 1978 indicate that Peterson
could perform mathematics at an eighth-grade level and estimate his IQ to be 80. Over the
course of his education, Peterson was held back three times and was enrolled in at least one
“SLD”—Specific Learning Disability—reading class.
In March 2004, three months before Peterson alleges his disability began and three years
before Peterson filed his SSI claim, a licensed clinical psychologist, Christopher Catt, Psy.D.,
examined him. Dr. Catt administered an IQ test, which placed Peterson’s verbal IQ at 71,
performance IQ at 67, and full scale IQ at 66. Dr. Catt believed that this assessment validly
represented Peterson’s IQ at the time of assessment. Peterson told Dr. Catt that he started
consuming alcohol at age twelve and drank regularly. Peterson also stated that he periodically
smoked marijuana. Peterson explained that he had a long history with the law: he had been
jailed “a couple of hundred times” and estimated that he had collectively spent four to five years
in state or county jails. Peterson told Dr. Catt that he washed dishes and did laundry, that he
could manage his bills and make change, and that he shopped independently once a month. Dr.
Catt diagnosed Peterson with alcohol dependence, marijuana abuse, panic disorder with
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agoraphobia, depressive disorder not otherwise specified, and borderline intellectual functioning
(“BIF”). In his opinion, Peterson could both understand and maintain attention and
concentration on simple, repetitive tasks, but Peterson had a limited ability to tolerate the stresses
and pressures of daily employment or to interact appropriately with co-workers.
In September 2007, a certified clinical psychologist, Julie Joseph-Fox, M.A., performed a
consultative examination. Joseph-Fox also administered an IQ test to Peterson; she reported that
he was a “variably cooperative informant” and that although he was not obviously distracted, his
“effort appeared task dependent.” This testing, which Joseph-Fox stated as “likely a
conservative estimate” of Peterson’s abilities, yielded a verbal IQ of 69, a performance IQ of 76,
and a full scale IQ of 70. Peterson explained to Joseph-Fox that he drank six to eight beers daily
but had been abstinent for the nine months he had recently spent in jail. Peterson denied abusing
alcohol but stated that he “couldn’t tell [her] how many times” he had been arrested for driving
under the influence. Peterson explained that he helped his roommate cook and clean, mowed the
lawn, and did his own laundry, but that his roommate did most of the shopping. Joseph-Fox
diagnosed Peterson with alcohol abuse and “at least” BIF. She determined that Peterson
indicated the ability to understand, remember, and follow instructions, that he had adequate
concentration, and that he did not report any reason why persistence or pace would be
problematic.
Also in September 2007, Ed Ross, Ph.D., a state agency psychological consultant,
reviewed Peterson’s record and found that Peterson had both an organic mental disorder, which
manifested as BIF to low-average intelligence, and a substance-addiction disorder manifesting as
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alcoholism. Dr. Ross did not diagnose Peterson with mild mental retardation (“MMR”)1 or any
related conditions. Dr. Ross opined that Peterson could understand and recall simple non-
detailed work procedures and instructions, could complete routine mental aspects of making
work-related decisions, could follow a regular schedule, could tolerate co-workers and accept
supervision in an object-focused context, could adapt to gradual change, and could appreciate
work hazards. Dr. Ross’s findings were confirmed by two other state agency psychological
consultants—Laura Cutler, Ph.D., in January 2008 and Jane Brake, Ph.D., in December 2009.
In October 2009, Gary Maryman, Psy.D., a licensed clinical psychologist, performed
another consultative evaluation of Peterson. Peterson disclosed that he had nine DUI arrests, that
he had been imprisoned for his fourth DUI offense, and that he had been arrested roughly twenty
times for alcohol intoxication. Peterson admitted that he had a history of abusing alcohol but
said that now he only drank when he “hurt bad.” Upon further probing, Peterson admitted that
he hurt bad “about every day” but then claimed that he only drank on weekends. Peterson stated
that his driver’s license was suspended but that he would occasionally mow the lawn using a
riding mower in exchange for a place to live. He explained that a neighbor usually did his
laundry, prepared his meals, and sometimes did his grocery shopping. Dr. Maryman diagnosed
Peterson with alcohol abuse and antisocial personality traits. In Dr. Maryman’s opinion,
Peterson’s prognosis was “fair to good,” as he could understand, retain, and carry out simple to
somewhat complicated instructions and tasks, could follow a routine work schedule, could
interact appropriately with co-workers, and could adjust and adapt reasonably well. Maryman
cautioned, however, that Peterson should be in a medium-to-lower-stress work environment and
that he was not a good candidate for dealing with the general public.
1
The phrase “intellectual disability” has replaced “mental retardation” in Listing 12.05. 78 Fed. Reg. 46,499
(August 1, 2013) (to be codified at 20 C.F.R. pts. 404 and 416). Since the vast majority of the record uses the old
term, “mental retardation,” we do so as well.
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B.
In his May 17, 2010 hearing before ALJ Zuber, Peterson testified that he had a seventh
grade education, that he had been enrolled in both regular and special education classes, and that
he could do math but was unable to read or write. Peterson testified that he cooked his own
meals and did his own housework, although he “[did not] know much about housework” and did
not use a broom or mop. He explained that someone else did his shopping for him but that he
would occasionally buy a soft drink from a local store where his sister-in-law worked. Peterson
testified that he no longer drove because he had lost his license and his vision was poor but that
he still used a riding lawnmower. Id.
During this same hearing, ALJ Zuber presented the attending vocational expert (“VE”)
with a hypothetical:
I’d like you to assume a hypothetical individual with the same age,
education and work history as the Claimant. This individual would be capable of
simple unskilled routine tasks at the light exertional level with an option to sit or
stand every 30 to 45 minutes. This individual would be capable of occasional
climbing of ramps and stairs, occasional stooping, crouching, crawling, and
kneeling. No climbing of ladders, ropes or scaffolds. No use of the left lower
extremity for foot controls. This individual would be limited to tasks that
wouldn’t require more than monocular vision on the right side. No more than
occasional interaction with coworkers and supervisors. No contact with the
general public. No exposure to unprotected heights or dangerous machinery. No
tasks require any reading or writing.
The VE stated that a claimant with those limitations could work as an inspector, tester, or sorter
and that there were 2,000 such jobs in Kentucky and 97,000 in the U.S. economy. If the
hypothetical were modified so that the exertion level was reduced to sedentary, the VE testified
that there would be 200 inspector-tester-sorter jobs in Kentucky and 10,000 nationally. The VE
further testified that this modified hypothetical claimant could work as a hand laborer, a position
with 820 jobs in Kentucky and 56,000 nationally. The VE did testify, however, that if the
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hypothetical were further modified to reduce the sit-stand option to fifteen to twenty minutes at a
time, then there would not be work for such a claimant.
C.
In his evaluation of Peterson’s application, ALJ Zuber first found that Peterson had not
engaged in substantial gainful activity since he had applied for SSI on July 20, 2007. ALJ Zuber
then found that Peterson had the severe impairments of BIF, alcohol dependence, antisocial
personality traits, left-eye blindness, lumbar degenerative disc disease, and hypertension, but that
none of these—either alone or in combination—met or medically equaled any of the listed
impairments. In making this determination, ALJ Zuber specifically discussed the IQ test that
Joseph-Fox administered, emphasizing the questionable reliability of its results because of
Peterson’s variable effort, and further noted that the record failed to demonstrate that Peterson’s
IQ was in the range of 60 to 70 before age twenty-two. ALJ Zuber found Peterson’s functional
adaptability to be only mildly limited. Based on these findings, ALJ Zuber concluded that
Peterson did not meet the Listing 12.05 criteria.
ALJ Zuber then concluded that Peterson had the physical residual functional capacity
(“RFC”) to perform a range of light work that allowed for a sit-stand option, that Peterson could
stoop, crouch, kneel, and climb ramps or stairs on occasion. ALJ Zuber stated that Peterson
could never climb ladders, ropes, or scaffolds or operate foot controls with his lower left
extremity and that Peterson should avoid unprotected heights and dangerous machinery. He
further determined that Peterson was limited to jobs that permitted right monocular vision and
did not require reading or writing. ALJ Zuber found that Peterson was limited to simple, routine,
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unskilled work that required only occasional interaction with coworkers or supervisors and did
not require interaction with the general public. With these limitations, ALJ Zuber determined
that Peterson could not perform his past relevant work. Relying on VE testimony and looking to
Medical-Vocational Guideline Rule 202.18, ALJ Zuber found that there were a significant
number of jobs in the national economy that a hypothetical person whose age, education, past
work history, and RFC mirrored Peterson’s could perform. ALJ Zuber therefore concluded that
Peterson was not disabled.
II.
In reviewing an ALJ’s decision in a social security case, the only issues before us are
whether the ALJ applied the correct legal standards and whether substantial evidence supports
the decision. Richardson v. Perales, 402 U.S. 389, 390 (1971); Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009); see also 42 U.S.C. § 405(g). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson, 402 U.S.
at 401).
“The substantial-evidence standard . . . presupposes that there is a zone of choice within
which the decisionmakers can go either way, without interference by the courts.” Blakley, 581
F.3d at 406 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). The Commissioner’s
findings are not reversible merely because substantial evidence in the record could support a
different conclusion. Id. Rather, even if such contrary substantial evidence exists, we affirm the
ALJ’s decision so long as there is evidence reasonably supporting the ALJ’s conclusion. Id.
(citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). We may look to portions of the
record that the ALJ did not discuss or cite, see Walker v. Sec’y of Health & Human Servs., 884
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F.2d 241, 245 (6th Cir. 1989), but we “do not try the case de novo, resolve conflicts in evidence,
or decide questions of credibility,” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
To qualify for benefits, Peterson must establish that he is disabled within the meaning of
the Social Security Act. 42 U.S.C. § 423(a)(1). The Act defines “disability” 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).
The Act creates a five-step process for assessing a disability claim. See, e.g., Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). First, a claimant must demonstrate that
he is not engaged in any “substantial gainful activity.” Vance v. Comm’r of Soc. Sec., 260 F.
App’x 801, 803 (6th Cir. 2008) (citing 20 C.F.R. §§ 404.1520(b), 416.920(b)). If a claimant is
not engaged in any substantial gainful activity, he must demonstrate that he suffers from a severe
impairment, one which “significantly limits . . . physical or mental ability to do basic work
activities.” Id. at 803–804 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). In the third step, if the
claimant is not performing substantial gainful activity, has a severe impairment that is expected
to last for at least twelve months, and that impairment meets or equals a listed impairment
located at 20 C.F.R. Pt. 404, Subpt. P, App’x 1, then the claimant is presumed disabled. Id. at
804 (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). In the fourth step, the claimant is not
disabled if his impairments do not prevent him from doing his past relevant work. Finally, even
if the claimant cannot perform his past relevant work, he is not disabled if he can perform other
work that exists in the national economy. Id. (citing Abbot v. Sullivan, 905 F.2d 918, 923 (6th
Cir. 1990)).
III.
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Peterson contends that the ALJ should have found that he was disabled in the third step of
the sequential evaluation. He argues that he satisfied the requirements listed in 20 C.F.R. Pt.
404, Subpt. P, App’x 1 § 12.05C because he had a listings-level IQ score, and the ALJ had
already found that he had a number of severe physical or other mental impairments. Id.
Accordingly, he contends that there is not substantial evidence to support the ALJ’s decision.
Peterson must satisfy his burden of proving his disability by showing that his impairments meet
or equal a listed impairment. See 20 C.F.R. § 416.920(a)(4)(iii); Foster v. Halter, 279 F.3d 348,
354 (6th Cir. 2001).
Because satisfying the listings during the third step yields an automatic determination of
disability based on medical findings, rather than a judgment based on all relevant factors for an
individual claimant, the evidentiary standards for a presumptive disability under the listings are
more strenuous than for claims that proceed through the entire five-step evaluation. See 20
C.F.R. §§ 416.925(d), 416.926; Sullivan v. Zebley, 493 U.S. 521, 532 (1990). To demonstrate
that his impairment meets or equals any mental listing, including any subsection of Listing
12.05, Peterson must demonstrate he satisfies the diagnostic description for the particular listed
impairment. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00. Peterson satisfies Listing 12.05
only if his impairment “satisfies the diagnostic description in the introductory paragraph and any
one of the four sets of criteria . . . .” 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00A. An
impairment that satisfies only some of the relevant listing criteria does not qualify, regardless of
its severity. See Zebley, 493 U.S. at 530. To show that his impairment meets subsection C of
Listing 12.05, for “mental retardation,” Peterson must show that he had: (1) significantly sub-
average general intellectual functioning with deficits in adaptive functioning prior to age twenty-
two; (2) a valid verbal, performance, or full scale IQ of 60 to 70; and (3) another physical or
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mental impairment imposing an additional and significant work-related limitation of function.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.00A, 12.05C; Zebley, 493 U.S. at 530–32; Foster,
279 F.3d at 354–55. Substantial evidence in the records exists to support ALJ Zuber’s
conclusion that Peterson has failed to do so, although there is likewise sufficient evidence to
support that Peterson met the requirement with a full scale IQ score of 70 on one exam.
The record does not reflect that Peterson has ever been diagnosed with MMR. Although
an MMR diagnosis is not a necessary prerequisite to satisfy Listing 12.05, its absence is
probative for a 12.05C determination. See Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450,
452 (6th Cir. 2007). Dr. Catt and Dr. Maryman—the two psychologists who examined
Peterson—stated that Peterson had BIF rather than MMR. Similarly, Dr. Cutler and Dr. Ross,
two of the state agency consultants, likewise determined that Peterson had BIF to low-average
intelligence. Because the evidence in the record fails to indicate that Peterson satisfied the
diagnostic description of MMR, see 20 C.F.R. Pt. 404, Subpt. P, App’x 1 §§ 12.00A, 12.05, ALJ
Zuber’s finding that Peterson did not meet the Listing 12.05 criteria is supported by substantial
evidence.
In an attempt to establish that the ALJ erred by failing to determine that his IQ was
within 12.05C’s range of 60-70, Peterson contends that ALJ Zuber explicitly should have
discussed the results of the 2004 IQ test administered by Dr. Catt, particularly given ALJ Zuber’s
concerns about the reliability of Joseph-Fox’s 2007 IQ test result. But because Dr. Catt was an
examining psychologist—not a treating doctor—his opinion is not entitled to any special
deference. See 20 C.F.R. § 416.927(c)(2). As Peterson correctly notes, ALJ Zuber did not
specifically discuss Dr. Catt’s IQ test. ALJ Zuber did, however, concur with the findings of the
state agency consultants, Dr. Ross and Dr. Cutler, both of whom considered Dr. Catt’s evaluation
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in making their findings. As such, ALJ Zuber’s failure to address the 2004 IQ test results
explicitly in his findings does not indicate that he disregarded these results or that his decision
was not supported by substantial evidence.
Peterson also struggles to meet Listing 12.05’s diagnostic description because the record
lacks evidence indicating that he had adaptive functioning deficits before he was twenty-two. As
Peterson correctly argues, adaptive functioning is different from intellectual functioning, and
Peterson does not need to produce IQ scores from his childhood in order to meet this
requirement. See West v. Comm’r of Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007); McPeek
v. Sec’y of Health & Human Servs., 19 F.3d 19, at *2 (6th Cir. 1994) (unpublished table
decision). Nonetheless, Peterson must put on evidence indicating that he had adaptive
functioning deficits during his developmental period. In an attempt to do so, Peterson points to
his poor academic history, noting that he attended SLD classes, that he was illiterate, and that he
dropped out of school in the seventh grade.
Peterson’s school records, however, are a double-edged sword. The same records on
which Peterson relies also indicate that when he dropped out of school, he could read at a fifth-
grade level, could handle eighth-grade level math, and had an IQ of 80. Moreover, neither
circumstantial evidence such as school records nor a history of special education combined with
an adult IQ score are necessarily enough to demonstrate that a claimant had adaptive functioning
deficits before age twenty-two. See, e.g., Eddy v. Comm'r of Soc. Sec., 506 F. App’x 508, 510
(6th Cir. 2012) (holding that a claimant’s eighth grade education with a history of special
education classes did not establish deficits in adaptive functioning prior to age twenty-two);
Foster, 279 F.3d at 352–55 (finding that a ninth-grade education completed through special
education classes, followed by numerous unsuccessful attempts at a GED, coupled with an adult
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full scale IQ of 69 did not establish adaptive functioning deficits prior to age twenty-two); cf.
Hayes v. Comm’r of Soc. Sec., 357 F. App’x. 672, 676–77 (6th Cir. 2009) (“This Court has never
held that poor academic performance, in and of itself, is sufficient to warrant a finding of onset
of subaverage intellectual functioning before age twenty-two.”).
Peterson’s claim also is hamstrung by his robustly documented history with alcohol. His
declining IQ and backslide in skills such as reading, coupled with his having been diagnosed
with alcohol dependency or abuse by every relevant professional who evaluated him, suggests
that Peterson’s loss of adaptive functioning occurred after the developmental phase. See Brown
v. Sec’y of Health & Human Servs., 948 F.2d 268, 271 (6th Cir. 1991) (remanding a Listing
12.05C case to determine whether the claimant’s adult IQ scores were a product of his alcohol
dependence). This suggestion is bolstered by Dr. Ross’s and Dr. Cutler’s each determining,
based on their respective reviews of Peterson’s records, that Peterson had BIF arising from an
organic mental disorder.
IV.
Peterson undeniably has pointed to pieces of evidence in the record that indicate that he
might be disabled as defined under 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.05C. Merely
marshalling evidence to suggest that he is disabled, however, is insufficient; to prevail on appeal,
Peterson must demonstrate that the ALJ’s determination that he was not disabled is not supported
by substantial evidence. He has failed to do so. Because substantial evidence in the record
supports ALJ Zuber’s determination that Peterson is not disabled, we AFFIRM the district
court’s grant of summary judgment to the Commissioner.
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