United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
Loretta Stewart brings this matter under 42 U.S.C. §
405(g) seeking judicial review of an administrative decision
of the Acting Commissioner of Social Security. The Court,
having reviewed the record and the cross-motions for summary
judgment filed by the parties, will AFFIRM
the Commissioner's decision as no legal error occurred
and the decision is supported by substantial evidence.
Standard for Determining Disability
the Social Security Act, a disability is defined as
“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). In determining disability, an Administrative
Law Judge (“ALJ”) uses a five-step analysis.
See Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). Step One considers whether the
claimant is still performing substantial gainful activity;
Step Two, whether any of the claimant's impairments are
“severe”; Step Three, whether the impairments
meet or equal a listing in the Listing of Impairments; Step
Four, whether the claimant can still perform past relevant
work; and Step Five, whether significant numbers of other
jobs exist in the national economy which the claimant can
perform. As to the last step, the burden of proof shifts from
the claimant to the Commissioner. Id.; see also
Preslar v. Sec'y of Health & Human Servs., 14
F.3d 1107, 1110 (6th Cir. 1994).
Procedural and Factual History
initially filed an application for Title XVI Supplemental
Social Security Insurance Benefits in May 2001. [TR 132].
Stewart was found to be disabled and was awarded benefits on
May 24, 2001 based on an anxiety disorder. [Id.; TR
309]. Subsequently, Stewart's benefits were suspended
because she was incarcerated for more than 30 days. [TR 121].
release from incarceration, Stewart filed a new application
for benefits on March 20, 2009, alleging disability beginning
March 1, 1991. [TR 15]. On May 6, 2009, Stewart underwent a
consultative examination, conducted by Reba Moore, a licensed
psychological practitioner. [TR 231-39]. During the
examination, Stewart reported thyroid problems, back pain,
visual problems, hypertension, and an irregular heartbeat.
[TR 233]. Stewart reported drug abuse that began after her
divorce. [Id.]. Additionally, Stewart reported that
she had a psychiatric hospitalization in 1996.
[Id.]. Stewart reported that she has attempted
suicide multiple times from childhood until 1996.
[Id.]. Furthermore, Stewart reported an attempted
overdose in 2006 or 2007. [Id.]. Stewart also
reported hospitalizations in 2006 related to her drug
dependency issues. [Id.].
of the consultative examination, a Wechsler Adult
Intelligence Scale - Third Edition (WAIS-III) was
administered to Stewart. [TR 235]. Stewart was found to have
a verbal IQ score of 67, a performance IQ score of 80, and a
full-scale IQ score of 71. [Id.]. Stewart's
verbal IQ score falls within the range of mild mental
retardation and Stewart's performance and full-scale
scores are in the borderline range. [Id.]. Finally,
Stewart's reading skills are at a second-grade level and
her mathematical skills are at a fifth-grade level. [TR 237].
After the examination, Moore's diagnostic impression
found that Stewart suffers from anxiety disorder, reading
disorder, and borderline intellectual functioning. [TR 238].
claim for benefits was denied initially and upon
reconsideration. [TR 55-57, 62-64]. Stewart then pursued her
claims at a hearing in front of ALJ Tommye C. Mangus on March
29, 2010. [TR 28-52]. ALJ Mangus issued a decision on August
6, 2010, denying Stewart's claims and finding that she
was not disabled. [TR 12-27]. The Appeals Council denied
review. [TR 1-6].
exhausted her administrative remedies, Stewart pursued
judicial review of the Commissioner's decision on
February 1, 2012. See Stewart v. Astrue, No.
12-cv-28-JBC, 2012 WL 3063968 (E.D. Ky. July 26, 2012). The
court remanded the case so that the ALJ could obtain
Stewart's school records to help determine whether
Stewart had an intellectual disability that manifested
prior to age twenty-two. Id. at *2-3.
attempts were made to retrieve Stewart's school records
from Somerset Independent Schools. [TR 496-501]. The only
record obtained was a Census Card that reflects the years
that Stewart attended Somerset Independent Schools and what
grade she was enrolled in during a given school year. [TR
on November 5, 2013, a second hearing was held in front of
ALJ Mangus. [TR 346-72]. During the second hearing, ALJ
Mangus heard testimony from Stewart and from Dr. James
Miller, a vocational expert. [Id.]. Additionally,
Stewart was represented at the hearing by Kim Murphy, a
paralegal and non-attorney representative. [Id.].
the second hearing, ALJ Mangus again concluded that Stewart
was not disabled. [TR 299-317]. The ALJ found that Stewart
had not engaged in substantial gainful activity since March
20, 2009 and that Stewart had the following severe
impairments: 1) borderline intellectual functioning; 2)
reading disorder; 3) a history of anxiety disorder; and 4) a
history of polysubstance disorder, in sustained full
remission. [TR 304-05].
at step three, ALJ Mangus found that the severity of
Stewart's impairments, singly and in combination, did not
meet the criteria of listings 12.02, 12.05, 12.06, and 12.09.
[TR 306-09]. Pertaining to whether Stewart suffers from an
intellectual disability under listing 12.05, the ALJ noted a
minimal history of mental health treatment and acknowledged
that Stewart's verbal IQ score of 67 was “within
the range contemplated by ‘paragraph C' . . .
.” [TR 307-08]. Even so, the ALJ concluded that ...