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Stewart v. Berryhill

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

October 1, 2018

NANCY C. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.



         Plaintiff 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.

         I. Standard for Determining Disability

         Under 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).

         II. Procedural and Factual History

         Stewart 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].

         Upon 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.].

         As part 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].

         Stewart's 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].

         Having 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[1] that manifested prior to age twenty-two. Id. at *2-3.

         Subsequently, 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 499-500].

         Then, 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.].

         After 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].

         Still, 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 ...

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