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Lete v. Colvin

United States District Court, E.D. Kentucky, Southern Division, London

July 28, 2015

CAROLYN COLVIN, Commissioner of Social Security, Defendant.



Plaintiff Jeremy Thomas Lete 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 Lete's application for disability insurance benefits (DIB) and supplemental security income (SSI). The Court, having reviewed the record and for the reasons set forth herein, will DENY Lete's Motion for Summary Judgment [R. 10] and GRANT that of the Commissioner, [R. 11].


Lete filed applications for DIB and SSI on March 7, 2010. [Transcript (Tr.) 110-11]. She alleges a disability beginning on October 29, 2011, due to a speech impediment and depression. [Tr. 121]. Lete's application was denied initially (June 5, 2012), and upon reconsideration (September 19, 2012). [Tr. 94, 88]. Subsequently, at Lete's request, an administrative hearing was conducted by Administrative Law Judge (ALJ) Christopher Van Dyck (May 1, 2013). [Tr. 321-35]. Lete, who was twenty-seven years old on the date of the hearing, has a high school education and an associates' degree in general studies. [Tr. 322-23]. Previously, Lete worked in retail, unloading deliveries, helping customers, bagging groceries, and pulling in shopping carts. [Tr. 323-25]. He left his most recent job at Kroger due to relocation. [Tr. 325].

In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. § 416.920.[1] First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 416.920(a)(4)(i). Second, if a claimant does not have any impairment or combination of impairments which significantly limits 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. § 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. § 416.920(a)(4)(iii). Before moving to the fourth step, the ALJ must use all the relevant evidence in the record to determine the claimant's residual functional capacity (RFC), which is an assessment of one's ability to perform certain physical and mental work activities on a sustained basis despite any impairment experienced by the individual. See 20 C.F.R. § 404.1545. Fourth, the ALJ must determine whether the claimant has the RFC to perform the requirements of his past relevant work, and if a claimant's impairments do not prevent him from doing past relevant work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). Fifth, if a claimant's impairments (considering his residual functional capacity, age, education, and past relevant work) prevent him from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 416.920(a)(4)(v).

In this case, at Step 1, the ALJ found that Lete had not engaged in substantial gainful activity since October 29, 2011, the alleged onset date. [Tr. 14]. At Step 2, the ALJ found that Lete has three "severe" impairments: affective disorder, borderline intellectual functioning, and speech and language delay. [ Id. ] At Step 3, the ALJ found that Lete's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, including, in particular Listing 12.04. [Tr. 17]. The ALJ then considered the entire record and determined that Lete possessed the residual functional capacity to perform a full range of work at all exertional levels, but with a number of nonexertional limitations: "simple routine tasks involving no more than occasional coworker or supervisor contact, no public contact, and no quota or production based work."[2] [Tr. 19-20]. At Steps 4 and 5, the ALJ accepted Vocational Expert Bill Ellis' hearing testimony that, considering Lete's age, education, and RFC, there are a significant number of jobs in the national economy that Lete could perform. [Tr. 22-23.] Accordingly, on June 24, 2013, the ALJ found that Lete was not "disabled" and therefore is ineligible for DIB and SSI. [Tr. 22]. The Appeals Council declined to review the ALJ's decision [Tr. 5], and Lete 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); Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). 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. Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).


Lete first contends that the ALJ erred when he failed to expressly consider at Step Three whether Lete met Listing 12.05(C) for intellectual disability. Specifically, Lete argues that his low IQ tests from childhood establish that he meets the 12.05(C). On October 31, 1991, at the age of five, Lete scored a composite of 63 on the Stanford-Binet Intelligence Scale. [Tr. 192]. Under the Weschler Intelligence Test for Children, Lete scored a full scale IQ of 58 on September 2, 1993 (age seven), and a 67 on August 22, 1996 (age ten). [ Id. ] On April 17, 2012, when he was twenty-five years and eleven months old, Lete underwent testing with Brittany Shaw, M.S., and Dr. Jessica Huett, Psy.D., and scored a full scale IQ of 73, a verbal IQ of 80, and a performance score of 77 on the Weschler Adult Intelligence Scale. [Tr. 202]. He argues that those more recent, higher scores are less relevant compared to the "longevity" and apparent consistency of his childhood scores. [Pl.'s Mem. in Supp. of Mot. Summ. J., R. 10-1 at 10].

"[N]either the listings nor the Sixth Circuit require the ALJ to address every listing' or to discuss listings that the applicant clearly does not meet.'" Smith-Johnson v. Comm'r of Soc. Sec., 579 F.Appx. 426, 432 (6th Cir. 2014) (quoting Sheeks v. Comm'r of Soc. Sec., 544 F.Appx. 639, 641 (6th Cir. 2013)). The ALJ need only discuss the relevant listing when "the record raises a substantial question as to whether [the claimant] could qualify as disabled' under a listing." Id. (quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). In order to raise a "substantial question, " a claimant must "point to specific evidence that demonstrates that he reasonably could meet or equal every requirement of the listing." Id. (citations omitted) (emphasis added).

The ALJ did not expressly consider Listing 12.05(C) in his decision. Because Lete cannot show that he meets one of the Listing's essential requirements, however, the Court concludes that this does not amount to reversible error. Smith-Johnson, 579 F.Appx. at 433.

Listing 12.05(C) has two components. First, under the "diagnostic definition, " the claimant must establish that he has "significantly subaverage general intellectual functioning with deficits in adaptive functioning [that] initially manifested [before age twenty-two]." 20 C.F.R. Pt. 404, App. 1, § 12.05; see also Smith-Johnson, 579 F.Appx. at 432. Second, under the "severity criteria, " the claimant must show that he meets one of four criteria. § 12.05(A)-(D); Smith-Johnson, 579 F.Appx. at 432. Under either of the two criteria relevant here, [3] "a valid verbal, performance, or full scale IQ of 60 through 70" is required. Id. Corresponding childhood disability regulations provide that "IQ test results obtained between ages 7 and 16 should be considered current for 4 years when the tested IQ is less than 40, and for 2 years when the IQ is 40 or above." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(D)(10) ("IQ test results must also be sufficiently current for accurate assessment under 112.05. ...

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