United States District Court, W.D. Michigan, Southern Division
ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE.
a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(Commissioner). Plaintiff Jodi Gillespie seeks review of the
Commissioner's decision denying her claim for disability
insurance benefits (DIB) and supplemental security income
(SSI) under Titles II and XVI of the Social Security Act.
scope of judicial review in a social security case is limited
to determining whether the Commissioner applied the proper
legal standards in making her decision and whether there
exists in the record substantial evidence supporting that
decision. See Brainard v. Sec'y of Health & Human
Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve
evidentiary conflicts, or decide questions of credibility.
See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and
her findings are conclusive provided they are supported by
substantial evidence. See 42 U.S.C. § 405(g).
evidence is more than a scintilla, but less than a
preponderance. See Cohen v. Sec'y of Health &
Human Servs., 964 F.2d 524, 528 (6th Cir. 1992)
(citations omitted). It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347
(6th Cir. 1993). In determining the substantiality of the
evidence, the Court must consider the evidence on the record
as a whole and take into account whatever evidence in the
record fairly detracts from its weight. See Richardson v.
Sec'y of Health & Human Servs., 735 F.2d 962,
963 (6th Cir. 1984). The substantial evidence standard
presupposes the existence of a zone within which the decision
maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to
the administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. See Bogle, 998 F.2d
at 347; Mullen, 800 F.2d at 545.
was forty-six years of age on the date of the ALJ's
decision. (PageID.86, 258.) She completed high school, and
was previously employed as a waitress and table worker.
(PageID.61, 1441.) Plaintiff filed for benefits on August 5,
2013, alleging that she had been disabled since April 1,
2012, due to asthma, allergies, high blood pressure, type II
diabetes, joint / back pain, depression, an anxiety disorder,
ADHD, acid reflux, chronic sinusitis, morbid obesity, colon
polyps, and a metabolic syndrome. (PageID.42, 63, 187-199.)
Plaintiff's applications were denied on March 4, 2014,
after which time she sought a hearing before an ALJ.
(PageID.116-126.) On November 7, 2014, Plaintiff appeared
with her counsel before ALJ Stanley Chin at which time both
Plaintiff and a vocational expert (VE) testified.
(PageID.1403-1447.) On February 11, 2015, the ALJ issued his
written decision, concluding that Plaintiff was not disabled.
(PageID.86-108.) On January 8, 2016, the Appeals Council
declined to review the ALJ's decision, making it the
Commissioner's final decision in the matter.
(PageID.33-37.) Plaintiff subsequently initiated this action
under 42 U.S.C. § 405(g).
social security regulations articulate a five-step sequential
process for evaluating disability. See 20 C.F.R.
§§ 404.1520(a-f), 416.920(a-f). If the
Commissioner can make a dispositive finding at any point in
the review, no further finding is required. See 20
C.F.R. §§ 404.1520(a), 416.920(a). The regulations
also provide that if a claimant suffers from a nonexertional
impairment as well as an exertional impairment, both are
considered in determining the claimant's residual
functional capacity (RFC). See 20 C.F.R.
§§ 404.1545, 416.945.
has the burden of proving the existence and severity of
limitations caused by her impairments and that she is
precluded from performing past relevant work through step
four. Jones v. Comm'r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003). At step five, it is the
Commissioner's burden “to identify a significant
number of jobs in the economy that accommodate the
claimant's residual functional capacity (determined at
step four) and vocational profile.” Id.
determined Plaintiff's claim failed at step five. At step
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date of
April 1, 2012. (PageID.91.) At step two, the ALJ found that
Plaintiff suffered from the following severe impairments: (1)
obesity; (2) type II diabetes mellitus (DM); (3) degenerative
disc disease (with back pain); (4) thyroid nodules; (5)
asthma (with chronic sinusitis); (6) gastroesophageal reflux
disease (GERD); (7) obstructive sleep apnea; (8) depression;
(9) anxiety; and (10) attention deficit hyperactivity
disorder (ADHD). (PageID.91.) At step three, the ALJ found
that Plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of the
Listing of Impairments found in 20 C.F.R. Pt. 404, Subpt. P,
App. 1. (PageID.93-96.) At step four, the ALJ determined
Plaintiff retained the RFC based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that the claimant cannot climb ladders,
ropes or scaffolds. The claimant can occasionally climb ramps
and stairs, balance, stoop, kneel, crouch and crawl. She must
occasionally avoid exposure to extreme cold, heat and
humidity. She must also occasionally avoid exposure to
environmental irritants such as fumes, odors, dusts, gases
and poorly ventilated areas. She must occasionally avoid the
use of moving machinery and exposure to unprotected heights.
The claimant's work would be limited to simple, routine
and repetitive tasks, performed in a work environment free of
fast-paced production requirements involving only simple work
related decisions and routine work place changes.
(PageID.96.) Continuing with the fourth step, the ALJ
determined that Plaintiff was unable to perform any of her
past relevant work. (PageID.106.) At the fifth step, the ALJ
questioned the VE to determine whether a significant number
of jobs exist in the economy that Plaintiff could perform
given her limitations. See Richardson, 735 F.2d at
964. The VE testified that Plaintiff could perform other work
as an office helper (100, 000 national jobs), assembler (59,
000 national jobs), and garment sorter (48, 000 national
jobs). (PageID.1442-1443.) Based on this record, the ALJ
found that Plaintiff was capable of making a successful
adjustment to work that exists in significant numbers in the
national economy. (PageID.107.)
the ALJ concluded that Plaintiff was not disabled from April
1, 2012, through February 11, 2015, the date of decision.
Plaintiff Has Not Satisfied Her Step Three Burden.
argues the ALJ erred at step three by failing to find that
her mental impairments met or equaled the requirements of
Listings 12.04 and 12.06. Specifically, she contends that a
mental RFC form completed by Dr. Ravinderjit Singh, M.D.,
constitutes evidence that her impairments are of listing
level severity. The Court disagrees.
“Listing of Impairments” is set forth at 20
C.F.R. Pt. 404, Subpt. P, App. 1. It “describes, for
each of the major body systems, impairments which are
considered severe enough to prevent a person from doing any
gainful activity.” 20 C.F.R. §§ 404.1525,
416.925. The medical criteria for a listing, i.e., the
inability to perform “gainful activity, ”
presents a higher level of severity from the statutory
standard, i.e., the inability to perform “substantial
gainful activity.” Sullivan v. Zebley, 493
U.S. 521, 532 (1990). “The reason for this difference
between the listings' level of severity and the statutory
standard is that, for adults, the listings were designed to
operate as a presumption of disability that makes further
inquiry unnecessary.” Id. At issue in this
case are Listings 12.04 (affective disorders) and 12.06
(anxiety related disorders).
claimant bears the burden of demonstrating that she meets or
equals a listed impairment at the third step of the
sequential evaluation. Evans v. Sec'y of Health &
Human Servs., 820 F.2d 161, 164 (6th Cir. 1987). In
order to be considered disabled under the Listing of
Impairments, “a claimant must establish that [her]
condition either is permanent, is expected to result in
death, or is expected to last at least 12 months, as well as
show that [her] condition meets or equals one of the listed
impairments.” Id. An impairment satisfies the
listing only when it manifests the specific findings
described in the medical criteria for that particular
impairment. 20 C.F.R. §§ 404.1525(d), 416.925(d). A
claimant does not satisfy a particular listing unless all of
the requirements of the listing are present. Hale v.
Sec'y of Health & Human Servs., 816 F.2d 1078,
1083 (6th Cir. 1987); King v. Heckler, 742 F.2d 968,
973 (6th Cir. 1984); see, e.g., Thacker v. Soc.
Sec. Admin., 93 F. App'x 725, 728 (6th Cir. 2004)
(“[w]hen a claimant alleges that [s]he meets or equals
a listed impairment, [s]he must present specific medical
findings that satisfy the various tests listed in the
description of the applicable impairment or present medical
evidence which describes how the impairment has such
equivalency”). If a claimant successfully carries this
burden, the Commissioner will find the claimant disabled
without considering the claimant's age, education and
work experience. 20 C.F.R. §§ 404.1520(d),
for mental impairments generally begin with “paragraph
A” criteria which is “a set of medical
findings.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.00. Paragraph A is followed by paragraph B, which contains
a “set of impairment-related functional
limitations.” Id. Listings 12.04 and 12.06
also contain paragraph C criteria, which are additional
functional criteria. Id. “ T h e requirements
in paragraphs B and C describe impairment-related functional
limitations that are incompatible with the ability to do any
gainful activity.” Id. Listing 12.04 is met
“when the requirements in both [paragraphs] A and B are
satisfied, or when the requirements in C are
satisfied.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.04. Similarly, Listing 12.06 is met “when the
requirements in both A and B are satisfied, or when the
requirements in both A and C are satisfied.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.06. Plaintiff contests
the ALJ's paragraph B finding, claiming that it is
unsupported by substantial evidence. (PageID.1454.)
paragraph B severity requirements of Listings 12.04 and 12.06
require at least two of the following: (1) a marked
restriction of activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) marked
difficulties in maintaining concentration, persistence, or
pace; or (4) repeated episodes of decompensation, each of
extended duration. A “marked” limitation is a
degree of limitation that is more than moderate, but less
than extreme. 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.00(C); see also Sullenger v. Comm'r of Soc.
Sec., 255 F. App'x 988, 993 (6th Cir. 2007). The ALJ
found that Plaintiff did not meet the requirements of
paragraph B because she had only mild restrictions in
activities of daily living, mild ...