United States District Court, Eastern District of Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
The Plaintiff, Don Collett, brought this action pursuant to 42 U.S.C. §§ 405(g) seeking judicial review of an administrative decision of the Commissioner of Social Security (Commissioner) denying Collett’s application for disability insurance benefits (DIB) and supplemental security income (SSI). The Court, having reviewed the record and for the reasons set forth below, will deny Collett’s Motion for Summary Judgment [R. 21] and grant the Commissioner’s [R. 22].
Collett filed applications for DIB and SSI on February 9, 2012. [Transcript (Tr.) 177-82, 182-84, 202.] He alleges a disability beginning on June 1, 2011, due to seizure disorder, Hepatitis C and other liver problems alcoholism, and hypertension. [Tr. 177, 183; R. 21-1 at 1.] Collett’s date last insured is December 31, 2014. [Tr. 27.] Collett’s applications were denied initially in May 2012, and upon reconsideration in September 2012. [Tr. 115-18, 120-25]. Subsequently, an administrative hearing was conducted before Administrative Law Judge (ALJ) Don Paris on March 5, 2013. [Tr. 45-51.] Collett, who was forty-nine years old at the time of the ALJ’s decision, has a limited education, having left school in the eighth grade. [Tr. 30, 53, 243.]. He has past work experience doing manual labor, but the ALJ found that Collett could no longer perform such work due to his impairments. [Tr. 30.]
In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(a)(4)(i). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(a)(4)(ii). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii). Fourth, if a claimant’s impairments do not prevent him from doing past relevant work, he is not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(a)(iv). Fifth, if a claimant’s impairments (considering residual functional capacity, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. §§ 404.1520(f), 416.920(a)(4)(v).
In this case, at Step 1, ALJ Paris found that Collett has not engaged in substantial gainful activity since June 1, 2011, the alleged onset date. [Tr. 27.] At Step 2, the ALJ found that Collett has “severe” impairments of chronic liver disease, depressive disorder, organic mental disorder, and chronic alcohol abuse with alcohol-based psychoses and alcohol-based seizure disorder. [Tr. 27.] At Step 3, the ALJ found that Collett’s impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Tr. 27-29]. Before moving to Step 4, the ALJ determined that Collett had the residual functional capacity (RFC) to perform a reduced range of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), but with certain physical and mental limitations. [Tr. 29.] Specifically, with regard to mental limitations, the ALJ determined that when including the effects of substance abuse, Collett would be “unable to sustain concentration and attention sufficiently to complete a 40-hour workweek, even in the performance of simple tasks, ” and that his alcohol intoxication would cause him to miss work at least two days per month. [Tr. 29.] At Steps 4 and 5, the ALJ determined that in light of Collett’s substance abuse disorder, he is unable to perform any past relevant work, or indeed any work that exists in significant numbers in the national economy. [Tr. 30-31.]
The ALJ then considered Collett’s RFC apart from the alcohol abuse. In doing so, ALJ Paris found that even if Collett stopped abusing alcohol, he would still suffer from severe impairments, but that his remaining limitations would not meet the criteria for any listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Tr. 31-32.] However, if Collett stopped abusing alcohol, the ALJ determined that his mental RFC would improve significantly, and that although he would still have some mental limitations, he would be able to “understand, remember, and carry out simple verbal instructions, ” and could sustain such instructions in two-hour segments over the course of a workday. [Tr. 32-33.] The ALJ also found that apart from the effects of his substance abuse, Collett “can tolerate occasional contact with supervisors and co-workers” if “brief and casual and in a non-public setting, ” and he “can adapt to expected changes and pressures of a routine work setting with reasonable support and structure.” [Tr. 33.] Additionally, ALJ Paris found that if Collett stopped abusing alcohol, he still would be unable to perform his past relevant work, but that, considering his mental limitations without substance abuse and based on the testimony of vocational expert Joyce P. Forrest, there is a significant number of jobs in the national economy that he could perform. [Tr. 36.] Accordingly, on March 15, 2013, the ALJ issued an unfavorable decision, finding that because Collett’s substance abuse disorder is “a contributing factor material to the determination of disability, ” Collett is not disabled as defined in the Social Security Act, and is therefore ineligible for DIB and SSI. [Tr. 37]. The Appeals Council declined to review the ALJ’s decision [Tr. 1-4], and Collett now seeks judicial review in this Court.
This Court’s review is limited to whether there is substantial evidence in the record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “Substantial evidence” is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). The substantial evidence standard “presupposes that there is a zone of choice within which decision makers can go either way, without interference from the court.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quotes and citations omitted).
In determining the existence of substantial evidence, courts must examine the record as a whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, courts are not to conduct a de novo review, resolve conflicts in evidence, or make credibility determinations. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citations omitted); see also Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner’s decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
Collett’s first, and indeed only, argument on appeal is that the ALJ erred in his determination at Step 3 that Collett’s mental impairments do not meet one of the listings. [R. 21-1 at 5.] Collett argues that there is substantial evidence that he meets Listing 12.05(B) for Intellectual Disability and alternatively contends that he also meets the requirements of Listing 12.05(D). [Id.] At Step 3 of the sequential evaluation process, the claimant has the burden of showing that his impairments are equal or equivalent to a listed impairment. Malone v. Comm’r of Soc. Sec., 507 F. App’x 470, 472 (6th Cir. 2012) (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001)). Because “the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary, ” the evidentiary standards for determining disability by meeting the listed impairments are stricter than the standards employed at later steps in the sequential evaluation process. Sullivan v. Zebley, 493 U.S. 521, 532 (1990); See 20 C.F.R. §§ 404.1526, 416.926. “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Id. at 530 (emphasis in original); see also Malone, 507 F. App’x at 472 (quoting Zebley, 493 U.S. at 530).
A claimant only meets Listing 12.05 if his impairment “satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria” in Paragraphs A though D. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00 (emphasis added). Thus, in order to satisfy the requirements of Listing 12.05 for Intellectual Disability, a claimant must show “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period, i.e., the evidence demonstrates or supports onset of the impairment before age 22”; and the claimant must also show one of the sets of criteria in Paragraphs A, B, C, or D. Id. §12.05; see also Id. §12.00(A)(“Specific symptoms, signs, and laboratory findings in the paragraph A criteria of any of the listings in this section cannot be considered in isolation from the description of the mental disorder contained at the beginning of each listing category.”); Zebley, 493 U.S. at 530-32; Foster, 279 F.3d at 354-55. The criteria in Paragraph B of 12.05, which Collett claims he meets, only requires “[a] valid verbal, performance, or full scale IQ of 59 or less.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05(B). The criteria in Paragraph D, which Collett also claims he meets, requires an IQ score of 60 to 70 and at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. Id. § 12.05(D).
ALJ Paris noted that the consultative examiner measured Collett’s full-scale IQ at 59, which meets the criteria of Paragraph B, and he also discussed the requirements in Paragraph D within the context of other Listings having similar requirements. [Tr. 28-29.] Importantly, however, the ALJ determined that Collett did not meet any part of Listing 12.05 primarily because Collett failed to show that his intellectual deficits initially manifested prior to age twenty-two, which is a threshold requirement of Listing 12.05 that must be satisfied before consideration of any criteria in Paragraphs A through D. [Tr. 28-29 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 §12.05).] Specifically, ALJ Paris noted that the record contains only limited education records and no IQ scores, medical records, or psychological evaluations from the years prior to Collett reaching the age of twenty-two. [Id.] Moreover, the available education records show that Collett functioned at “significantly higher” academic levels when he was in eighth grade (just before he left school) than the levels obtained by consultative examiner Dr. Skaggs, and Collett’s earning records show consistent employment throughout his adult life. [Tr. 28-29, 282, 457-59.] Because the record contained no other evidence of intellectual or adaptive functioning deficits before age ...