NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0478n.06 No. 10-6119 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT TINA KA Y COURTER, P laintif f-App ellant,

v. COMMISSIONER OF SOCIAL SECURITY, Defendan t-Appellee. / ON AP P EAL F ROM THE UN ITED STATE S DISTRICT COURT F OR THE EASTE RN DISTRICT OF K ENTUCKY

BEFORE: CLAY and GIBBONS, Circuit Jud ges; K ORMAN, D istrict Judge. * CL AY , Circuit Judge. Claimant Tina Kay Courter appea ls an order of the district court g ranting summary j u d gm en t to the Commi ssioner of the Social Security Administration and uph o l d i n g t h e denial of Claimant’s applications for disability benef its under Title I I of the Social Security Act, 42 U.S.C. §§ 401–433, and for supplemental s ec urity income under Title XVI , 42 U.S.C. §§ 1381–1383f, on the basis of her alleg ed mental disability

. For the rea sons that follow, we AF F IRM

. BACK GR OUND On M ay 23, 2006, Claimant filed applications with the S ocial S ecur i ty Administration for disability benef

its and supplemental secur ity income under Titles I I and XVI of the Social Security

The Honora

ble Edwar d R. Korman, United States District J udg e for the Easter n District of * New Y ork, sitting by

desig nation.No. 10-6119

Act. Claimant, over forty y ear s old at the time of her ap p lications, claimed to suffe r from an unspecifie d “disabling condition” on J uly 15, 2000 that entitled her to benef its. Claimant eventua lly 1 attested that her disability was both mental and phy sical. Claimant’s applications wer e denied afte r 2 the Commi ssioner’s initial revie w and upon rec onsideration. Claimant reque sted a hear ing and was ref err ed to an AL J

. On September 16, 2008, the AL J hear d arg ument in support of Claimant’s applications and testimony from Claimant and a vocational expert. Evidence was prese nted on h er educational backg round, work e x perie nce, c urre nt home life, and phy sical and me ntal condition. Claimant completed secondar y education throug h six th g rade , leaving school at t he age of fourtee n. She ended her educa tion ear ly with her mother’s permission. Claimant held employ ment continuously from 1986 until 2 0 0 1

. Her jobs included food prepa ration, candle packa g ing, and clea ning service s for about ten differ ent companies acr oss three states. Claimant’s position as a food prepa rer involved cutting slices of pie and meat, making sandwiche s, and clea ring customers’ tray s. She was also a housekee per and clea ner for a boat and as part of a larg er clea ning service

. Her work on the boat involved cle aning betwee n the boat’s mac hines and moppi ng the deck. Her work a s a

Claimant’s disability a

p p li c a ti o n in the prese nt case alleg ed an onset date of disability of J uly 1 15, 2000, even though she had filed prior applications for disability benef its, which wer e denied on May 17, 2002 and Marc h 26, 2005. Howeve r, the administrative law judge (AL J ) decide d to reope n the ea rlier a pplications and consider ed Claimant’s disability beg inning July

15, 2000. Although Claimant does not appea l the AL J ’s decision deny ing her applications on the basis 2 of her alleg ed phy sical dis ab i l i t y , we n ote that the majority of evidenc e in the rec ord rela ted to Claimant’s phy sical ailments, primarily , her “bac k pain.” Ex perts deter mined that Claimant suffe rs from spondy lolist hesis, deg ener ative disc disease, deg ener ative joint disease in the rig ht knee, status post rig ht knee meniscec tomy and sy novectomy , chronic o b s tr

u c ti v e p u lm o n a

r y disease, and obesity

. 2No. 10-6119

housekee per i n cluded clea ning in hotels, apar

tments, restaur ants, and other public are as and perf orming tasks such as vacuuming , mopping, and making beds. As a candle packa g er, Claimant place d labels on candle s, handled candle wax, and package d p o t p ourri. Claimant’s jobs require d work periods of eig ht hours per day , five day s per wee k. I n 2001, she perma nently stopped working due to pain in her

back. At the time of the hear ing, Claimant lived with her fathe r, who provided for her financ ially

. Claimant testified that, on a ty pical day , she would clea

n her fathe r’s apar

tment (swee ping the floor and wiping the counter

tops) and watch television for six to seven hours. Claimant cooks for herse lf, does her dishes, and takes her laundry to a laundromat. She g oes shopping sever al times a month. She once had a drivers license, but she l et i t expire due to an inabili ty to aff ord gas or automobile insurance . She stated that she did not fee l “ functional” beca use of her inability to w ork due to her back pa in. I n response to questions reg arding her mental state, Claimant denied having anxieties, althoug h she pref

ers to avoid big crow ds. She denied having suicidal thoughts or eng ag ing in cry ing episodes. Claimant stated that her cog nitive functioning “kee ps me down to cer tain jobs. Ba sically like housekee ping and kitchen work I ’ve done.” The AL J asked Claimant if she was capa ble of perf orming her past work as a clea ner and prep cook i f s h e d i d not suffe r from back pain, and Claimant ag ree d that she could. I n addition to Claimant’s testimony , the AL J was prese nted with sever al expert evalua tions of Claimant’s mental capa biliti es. The first was an evalua tion by Dr. Nanc y Schmidtgoessling , who conducte d a one-time consultative examination of Claimant. Dr. Schmidtgoessling sug g ested that

3No. 10-6119

Claimant was of “low-bor derline intellect.” She tested Claimant on the Wechsler Adult I ntellige nce Scale (WAI S) I I I and found her to have a full scale I Q score of 59, verba l I Q of 61, and perf ormanc e I Q of 65. Dr. Schmidt go essl ing opined that this place d Claimant in the mild rang e of mental
reta rda t i on. Claimant’s Wechsler Memory Scale (WMS) I I I score s rang ed from mildly mentally
reta rded to border line. Her Vineland Adaptive Be havior Scales (AB S) score s wer e in the mild and low-ave rag e rang e of mental ret ar d at i on. Dr. Schmidtgoessling noted that Claimant’s response s during the examination wer e “log ical, rele vant, and coher ent, and [C laimant] d i d not appea r disorg anized or confuse d.” The doctor conclude d that Claimant is able to understand one- and twostep d ir e c ti o n s , th a

t h e r memory , conce ntration, and ability to handle stress was modera tely impaired, and that her ability to r elate to others was mildly impaired. The doctor also found that “[t] here are

no I Q score s, adaptive score s, or aca demic score s from the claimant’s developmental y ear s, and there fore a diag nosis of Mental Retar d at i o n can not be made.” Dr. Schmidtgoessling ultimately diag nosed Claimant with a depr essive disorder and a le arning disorder. Dr. Steven Mey er, a state ag ency revie wing ps y ch o l o gi st, revie wed Claimant’s file and submitt ed a second opinion. He deter mined that Claima n t h ad depre ssion, anxiety , and “B I F” (borde rline i ntellectua l fu n ct ioning) but that she was not mentally reta rded and did not satisfy the reg ulatory require ments for mental disability

. He felt that the I Q score s from the tests administered by Dr. Schmidtgoessling wer e an undere stimate of Claimant’s cog nitive abilities, even if the score s

wer e deeme d valid. Dr. Mey er compl et ed a Residual Func tional Capac ity Assessment and conclude d that C l ai m an t had no limit ation or insignifica nt limit ation in most cate g ories, but modera te limit ation in a few cate g ories; he did not believe that Plaintiff was “mar kedly limit ed” in

4No. 10-6119

any cate g ory . Dr. Mey er al s o n o t ed that his assessment was consistent with the finding s in Claimant’s prior disability application denia ls and “re cent f ield observa tions” of Claimant. Dr

. Da v id Dietz provided a third opinion of Claimant’s mental functioning

. Dr. Dietz revie wed both D r. Mey er’ s opinion and Claimant’s file. He aff irmed Dr. Mey er’ s assessment that Claimant was not mentally reta rded and noted that “[t] here continue to be si gn i fica nt conce rns reg arding the cr edibility

of [Cl aimant’s] alleg ations.” Claimant al s o p rovided the AL J with her school rec ords from the y ear s 1979 and 1980. Claimant submitt ed the school rec ords afte r Drs. Schmidtgoessling , Mey er, and Dietz had prepa red their repor

ts, so the information contained in the rec ords was not refl ec t ed i n t h e doctors’ history intakes or analy sis. The school rec ords showed that Claimant w as place d in spe cial education a nd ref err ed to a county attendance o ff i ce r in 1979. Claimant had an absente eism problem and was repe ating the six th g rade , though she was the ag e of a high school fre shman. The rec ords provided her full I Q score of 76, with a verba l score at 80 and a perf ormanc e score at 75. Claimant’s rea ding skills wer e adequate for her g rade level, but her math and spelling skills wer e at the third g rade level. The school rec ords also included an assessment by school psy cholog ist Don Hanon, which provided: “[T] here is some question as to how much of a true ‘slow lear ner’ [C laimant] is, as the combination of an unsettle d h o m e environment and poor attendanc e would not be conducive to helping [her] perf orm as well as she might if these inhibiti ng fac tors wer e not prese nt.” Hanon expli citly blamed the low math and spelling skills on Claimant’s absente eism, noting that cer tain subjects that are taug ht sequentially require attendanc e so that a student can lear n the basics and buil d u p o n those foundations. He did not diag nose mental re tarda tion.

5No. 10-6119

Finally , vocational ex pert Micha Daoud testified. Daoud reviewe d the recor d o f evidence and listened to Claimant’s testimony . Daoud f elt that Claimant would be unable to pe rfor m some of her past work due to her phy sical limit ations, though she could perf orm some of the work as she
actua lly perf

ormed it in the past, both phy sically and m en t al l y . Da o u d testified in response to a hy pothetical that if an in d i vidual suffe red from sever e mental impairments and could not sustain

conce ntration, persistenc e or pace , or do simple, routine tasks on a reg ular and continuing basis for

a normal work wee k, that individual would be mentally unable to perf orm Claimant’s past rele vant work. Howeve r, even if Claimant was unable to continue her past work due to phy sical limit ations, Daoud conclude d that other sedenta ry vocations rema ined open to Claimant, such as ticket counter , surveillance sy stem monitor, unskil led pac kag er, a nd ampoule pac kag er. After the hear ing, the AL J issued its decision aff irming the Commi ssioner’s denial of Claimant’s applicati ons on the basis that she di d not qualify as di sabled under t he S ocial S ecur ity Act. The AL J found that Claimant had not eng ag ed in substantial g ainful activity since the onset of her alleg ed disability , J uly 15, 2000. He also found that Claimant had sever e mental impairments 3 of “depr ession, anxiety , and a lear ning disorder not otherwise specifie d.” Howeve r, he deter mined that Claimant’s mental impairments did not meet or medically equal one of the listed impairme nts in the social secur ity reg ulations. The AL J decide d t h at while Claimant had mild to modera te intellectual difficulties, she had no marke d difficulties or repea ted episodes of decompe nsation as is r equire d for a finding of mental disability

. He noted that althoug h her I Q score of 59 fell within

Claimant was employ ed throug h part o f 2 0 01, but the Commi ssioner does not appea l the 3 AL J ’s deter

mination of Claimant’s onset date. 6No. 10-6119

the m ild mental retardation rang e, she was sti ll capa ble of one- and two-step job instructions. He also found that the I Q score was an undere stimate of Claimant’s abilities, e specia lly in lig ht of her extensive work history and activities of daily living. Finally , the AL J considere d Claimant’s school

rec ords and noted her prior, highe r I Q score and the school psy cholog ist’s evalua tion. He conclude d: “Given the lack of a formal diag nosis of mental reta rdation, [C laimant’s] prior I Q score of 76, and

aca demic defic its not solidly tied to mental ability , it cannot be found that the claimant meets the criter ia for disa

bility under listing 12.05.” The AL J also deter

mined that Claimant h ad t h e residual functional capa city to mentally perf orm light wor

k, subject t o cer

tain phy sical restrictions, which included her pa st releva nt work

as a clea ner or prep cook. Finally , the AL J deter mined that Claimant could s u cc essfully adjust to other work, considering her residual functi o n al ca pacity , ag e, education, and work experience

. C laimant appea led t he AL J ’s decision to the Appeals Council, which affirmed on the basis o f t h e AL J ’s dec ision. Cl aimant then filed the prese nt action. At the district court, Claimant submitt ed the rec ord of evidenc e fr om her administrative hear ing and two new piece s of evidenc e—two evalua tions of her mental capa biliti es. Both opinions

wer e solicited and obta ined by Claimant’s counsel one y ear afte r the AL J issued his decision. The first evalua tion wa s an opinion from Dr. L inda Har tmann, who revie wed Dr. Sc h mi d tg oessling’ s assessment and Claimant’s school rec ords. D r . H a r tm a nn b e li e v e d th a

t Cl a im a n t “is best evalua ted under listi ng 12.05 C, mental reta rdation.” Dr. Har

tmann noted that the “school

rec ords support ear ly evidenc e of delay ed development” and that Claimant’s full scale I Q score of

7No. 10-6119

59 (as deter

mined by the I Q test administered by Dr. Schmidtgoessling ) “ac tually is even below the rang e nec essar

y for 12.05 C.” The second evalua tion was provided by licensed psy cholog ical p ra ctitioner Reba Moore. Moore examined Claimant and con d ucted a new WAI S-I I I test, among others. On the WAI S-I I I , Claimant rec eived a

n overa ll I Q score of 67, with a ve rbal scor e of 67 and a performa nce score of 74. These score s wer e much highe r than the score s Claimant rec eived on the tests administered by Dr. Schmidtgoessling

. Nonethele ss, Moore found th at C l ai m an t fell within the mild mental
reta rdation rang e based on the new score s. Moore’ s ultimate “diag nostic impression” was of chronic depre ssion and mild mental retarda tion. Claimant and the Commi ssioner filed cross-motions for summary judgme nt. Claimant also moved to rema

nd the adjudication of her applications to the AL J in light of the two new evalua tions. The district court revie wed the AL J ’s decision and held that it was supported by substantial evidenc e. The district court further reje cted Claimant’s arg ument that her I Q score s qualified her as mentally
reta rded beca use they wer e in the rang e provided by Section 12.05. Finally , the dist ri ct co u rt assessed the new evalua tions prese nted by Claimant. I t deter mined that, despite t h e fac t that the opinions wer e compiled afte r the AL J ’s decision, Claimant could not show g ood cause as to why she did not seek out and admit the evidenc e at the administrative hea ring

. The district court g rante d summary judgme nt to the Comm issioner and de nied Claimant’s motions to remand. Claimant timely appea led and raised three issues for our revie w: First, whether the AL J ’s finding that Claimant was not mentally disabled wa s supported by substantial evidence

. Second, 4

Claimant does not appea l the denial of he r applica tion for phy sical disability benef its. 4 8No. 10-6119

whether the AL J violated Social Security R u l i n g 9 6 -6p in failing to seek updated expert analy sis following the admission of Claimant’s school rec ords. Third, whether t h e d i strict court err ed in deny ing Claimant’s motion to rema nd on the basis of he r admission of the two new psy cholog ical evalua tions. W e addr ess ea ch issue, in turn. DISCUSSIO N I. Motion for Su m m ary Judgm ent “The district court’s deter mination that substantial evidenc e supports the AL J ’s decision is

a leg al conclusion that we revie w de novo .” Karger v. Comm’r of Soc. Sec. , 414 F. App’x 739, 750 (6th Cir. 2011) ; W

hite v. Comm’r of Soc. Sec. , 572 F.3d 272, 281 (6th Cir. 2009)

. I n revie wing an AL J ’s decision to deny benef its, we must aff

irm “abse nt a deter

mination that the AL J failed to apply the corr ect leg al standard or made fac t finding s unsupported by substantial evidenc e in the rec ord.” Kyle v. Comm’r of

Soc. Sec. , 609 F.3d 847, 854 (6th Cir. 2010); see 42 U.S.C. § 405(g ). “Substantial evidenc e” constitutes “such rele vant evidenc e as a rea sonable mind might acc ept as ad eq u at e to support a conclusion.” Lindsl ey v . Comm’r of Soc. Se c. , 560 F.3d 601, 604 (6th Cir. 2009) (citing Richardson v. Perales , 402 U.S. 389, 401 (1971)) (interna l quotation marks omi tted). I t is “more than a scintilla of evidenc e but less than a preponde ranc e.” McG lothin v. Comm’r of Soc. Sec ., 299 F. App’x 516, 521 (6th Cir. 2008) (interna l quotation marks and citation omitted). We examine the administrative rec ord as a whole and consider all materia l f acts. W est v. Comm’r of Soc

. Sec. , 240 F. App’x 692, 695 (6th Cir. 2007) (citing Kirk v. Sec’ y of Health & Hum. Servs. , 667 F.2d 524, 536 (6th Cir. 1981), and W

alker v. Sec’

y of Health & Hum. Servs. , 980 F.2d 1066, 1070 (6th Cir. 1992)). Howeve r, even if the AL J ’s decision is supported by substantial evidenc e, we rema nd wher e the AL J

9No. 10-6119

“fa il[ ed] to follow its own reg ulations and wher e that err or prejudice [d] a claimant on the merits or deprive [d] the claimant of a substantial rig ht.” Bowen v. Comm’r of Soc. Sec. , 478 F.3d 742, 746 (6th Cir. 2007) (citing W

ilson v. Comm’r of Soc. Sec. , 378 F.3d 541, 546–47 (6th Cir. 2004)). Thus,

we may rema

nd the case to the AL J if its de cision was not supported by substantial e vidence or its decision wa s contrar

y to law or a dminist rative policy

. See 42 U.S.C. § 405(g) (sentenc e four ). A. The ALJ’s F ind ings Were Supp orte d By S ubs tantial Evid ence Under the Social Security Act, a claimant is entitled to disability benef its if she can show her “inability to eng ag e in any substantial g ainful activity by rea s o n of any medically deter minable phy sical or menta l impairment which can be expected to r esult in de ath or which has la sted or ca n be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)( 1)(A) ; 20 C.F.R. §§ 404.1505, 416.905. Corresponding reg ulations outline a five-ste p sequential proce ss to deter mine whether an individual qualifies as disabled. See 20 C.F.R. §§ 404.1520, 416.920. That proce ss provides: First, the claimant mus t demonstrate that he has not eng ag ed in subs t an t i al g ainful activity during the period o f d i s ab i l ity

. Second, the claimant must show that he suffe rs from a sever e medically deter minable phy sical or mental impairment. Third, if the claimant shows that his impairment meets or medica l ly equals one of the i m p airments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, he is deeme d di s ab l ed

. Four th, the AL J deter

mines whether , based on the claimant’s residual fu n cti onal capa city , the claimant can perf orm his past rele vant work, in which case the claimant is not disabled. Fifth, the AL J deter mines whether , based on the claimant’s residual functional capa city , as well as his ag e, educa tion, and work experience , the claimant can ma ke an a djustment to ot her w ork, in which c ase the claimant is not disabled.

10No. 10-6119

W ilson , 378 F.3d at 548 (in t er n al citations omitted); Cruse v. C omm’r of Soc. Sec. , 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(a) (4), 416.920(a) (4). We thus consider whether the 5 AL J ’s dec ision at eac h step was supporte d by substantial evidence

. Under step one, the AL J found that Claimant had not eng ag ed in substantial g ainful activity during the rele vant time period, J u l y 1 5 , 2000 throug h Dec ember 31, 2005, and there fore that Claimant met her burden under step one. 20 C.F.R. §§ 404.1520(a) (4)( i), 416.920(a) (4)( i). Under step two, the ALJ d eter

mined that Claimant suffe rs from sever e, medically deter minable mental impairments of depre ssion, anxiety , and a lear ning disorder not otherwise specifie d. 20 C.F.R. §§ 6 404.1520(a) (4)( ii), 416.920(a) (4)( ii). Be cause the parties do not appea l the AL J ’s decisions at steps

one and two of the an al y sis, we need not revie w those issues. I nstead, we turn to Claimant’s arg ument that the AL J ’s decision at step three was not supported by substantial evidenc e. We also consider the AL J ’s dec ision to deny benef its at steps four and f

ive. 1. Step Three: Whet her the Im pairm ent Qualif ies Under Sect ion 12.05 Under step three , a claimant must show that her sever e impairments qualify under the listi ng s in Section 12.05 of the appendix to subpart P of 20 C.F.R. § 404 (her einaf ter “Section 12.05”). See

A claimant is entitled to disability benef its only if she meets the insured status require ments 5 and can show disability on or befor e the date that the insured s t at u s ex p i red. See 20 C.F.R. § 404.131. I t is uncontradicted tha t Claimant was insured throug h Dec ember 31, 2005. A “mental impairment” is define d as “an i m p ai rm ent that results from

. . . psy cholog ical 6 abnorma lities which are demonstrable by medically acc eptable clinical and labora tory diag nostic techniques.” 42 U.S.C. § 423(d)( 3); 20 C.F.R. §§ 404.1508, 416.908 (re quiring that the abnorma lities be proven with evide nce of “sig ns, sy

mptoms, and laboratory

finding s”). 11No. 10-6119

20 C.F.R. §§ 404.1520(a) (4)( iii), 416.920( a)( 4)(iii). I f the claimant can make that showing , she is presumed disa

bled. W ilson , 378 F.3d a t 548. Section 12.05 provides: Mental reta

rdation ref

ers to signific antly subaver ag e g ener al intellectual functioning with defic its in adaptive functioning initially manifested during the developmental period; i.e., the evidenc e demonstrates or supports onset of the impairment befor e a g e 22. The require d level of sever ity for this disorde r is me t when the require ments in A, B , C, or D ar e satisfied. A. Mental incapa city evidenc ed by depende nce upon others for persona l ne eds (e.g ., toileting, eating , dressing , or bathing ) and inability to follow direc tions, s u ch that the use of standardized measure s of intellectual functioni n g i s prec luded; or B. A valid ver

bal, per formanc e, or f

ull scale I Q of 59 or le ss; or C. A valid verba l, perf ormanc e, or full scale I Q of 60 throug h 70 and a phy sical or other mental i m p airment imposing an additional and signific ant workrela ted limitation of function; or D. A valid verba l, perf ormanc e, or full scale I Q of 60 throug h 70, resulting in at least two of the f

ollowing: 1. Marke d restric tion of activities of daily living; or 2 Marke d difficulties in maintaining social func tioning; or 3. Marke d difficulties in maintaining conce ntration, persistenc e, or pa ce; or 4. Repea ted episodes of

decompe nsation, eac h of extended dura tion. 20 C.F.R. pt. 404, subpt. P, App. 1, § 12.05. “I n other words, to de monstrate mental reta rdation, a cl ai mant must demonstrate three fac tors to satisfy the diag nostic descr iption: (1) subaver ag e intellectual fu n ct i o ning; (2) onset befor e ag e twenty -two; and (3) adaptive- skills limit ations,” in addition to qualify ing under one of the four sets of criter ia under Section 12.05. Haye s v. Comm’r of Soc. Sec

. , 357 F. App’ x 672, 675 (6th Cir. 2009). Even if a cla imant’s impairments are sever e,

eac h of these criter ia must be proved in order for the claimant to qualify for disability benef its. Sullivan v. Zebley , 493 U.S. 521, 530 (1990).

12No. 10-6119

Claimant asser

ts that she qualifies as mentally reta rded u n d er Section 12.05B, 12.05C, or 12.05D. She arg ues that the AL J err ed in f inding that her impairments did not qua lify under the se listi ng s, beca

use (1) the AL J ’s decision was not supported by substantial evidenc e, and (2) the AL J oversteppe d his authority in interpreting her sc hool rec ord. The following evidenc e was befor e the AL J and supported his finding that Claimant did not qualify as mentally reta

rded under Section 12.05: Claimant was able to car e for herse lf and her fathe r’s apar

tment, includi n g co oking, clea ning, shopping, keeping trac k of her medical appointments, and maintaining persona l hy g iene. She had extensive prior work history as a clea ner and prep cook for sever al differ ent companies, and she expli citly testified at her hear ing that she was mentally capa

ble of continuing that work. Dr. Schmidtgoessling examined Claimant and found that she had mild mental reta rdation, but that she was capa ble of perf

orming one- and two-step instructions. Dr. Mey er found that Claimant’s I Q score of 59 undere stimated her capa biliti es. Dr. Dietz acknow ledg ed cre dibilit y issues. None of the experts diag nosed Claimant with mental
reta rdation, and they opined that she d i d n o t q u alify as mentally reta rded under Section 12.05. Fur thermore , none of the experts found “mar ked” restric tions or difficulties, inst ead finding only “moder ate” or “mild” limit ations. Finally , Claimant’s school rec ords noted a prior, highe r I Q score of 76, and school psy cholog ist Hanon commented that Claimant’s poor aca demic perf ormanc e was not due to the fac t that Claimant was a “slow lear ner” but rathe r due to Claimant’s roug h home life and fa ilure to attend c lasses. We believe that this evidenc e was cer tainly substa n t i al i n t h at a rea sonable mind would

acc ept it as adequa

te to support a finding that Claimant wa s n o t mentally reta rded under Section

13No. 10-6119

12.05B, 12.05C, or 12.05D. See Linds ley , 560 F.3d at 604. Although there was s ome com p et ing evidenc e indicating mental limit ations, such as Claimant’s qualify ing I Q score of 59, the AL J expli citly ag ree d with the experts that this score was an undere stimate and noted her prior I Q score of 76. We defe r to the AL J ’s decision “eve n if there is substantial evidenc e in the rec ord that would have supported an opposite conclusion, so long as substantial evidenc e suppo rt s t he conclusion

rea ched by the AL J .” Foster v. Halter , 279 F.3d 348, 353 (6th Cir. 2001) (quoting Key v. Callahan , 109 F.3d 270, 273 (6th Cir. 1997)) (interna l quotation marks omitted). Moreove r, the mere fac t of

a qualify ing I Q score does not require that the AL J find mental re t ar d at i on under Section 12.05B when substantial evidenc e supports the contrary co n clus ion or the claimant’s alleg ations of her capa biliti es are deeme d not cre dible. See Cruse , 502 F.3d at 542–43. Simi larl y , t h er e wa s littl e support for f

inding an “impairment imposing an additional and signific ant work-r elated limitation of function” or “ma

r k e d ” r e s trictions or repe ated episodes of decompe nsation require d under Section 12.05C and 12.05D, espec ially in light of Claimant’s own testimony that she was mentally capa ble of doing her pa st work. I n response to Claimant’s alleg ation that the AL J improperly overstepp ed his authority in interpre ting the school rec ords, we note that the AL J is actua lly required to analy ze the non-medica l evidenc e pre sented to him and to dec ide whethe r that evidenc e qualifies the c laimant as disabled. “[A]n AL J does not improperly assume the ro l e o f a m ed ical ex pert by assessing the m edica l and non-medica l e vidence

. . . .” Poe v. Comm’r of Soc

. Sec. , 342 F. App’x 149, 157 (6th Cir. 2009)

. The AL J must revie w the evidenc e, including school rec ords, to make the ulti m at e d ecision as to whether that evidenc e prove s or under mines an individual’s claim of menta l disabilit y . 20 C.F.R.

14No. 10-6119

§§ 404.1527(c) –(d), 416.927(c) –(d). This is so beca use the AL J is “re sp o n s i ble for making the deter mination or decision about whether [t he claimant] me e t[ s ] th e s ta tu to r y d e f inition of disability .” 20 C.F.R. §§ 404.1527(d)( 1), 416.927(d)( 1). Thus, the “fina l r esponsibility for deciding ” whether

a claimant’s i m p ai rments are sever e and “mee t[ ] or equal[] the require ments

. . . in the L isting of I mpairments” lies with the ag ency . 20 C.F.R. §§ 404.1527(d)( 2), 416.927(d)( 2). By considering the school rec ords and fulfilling his duties under the reg ulations, the AL J did not overstep his authority

.

2. Steps F our and F ive: Residual F unctional Capacity and Ad justm ent to Other Wor k Although the AL J found that Claimant’s impairments did not qualify h e r a s me ntally reta rded under step t h re e, t h e AL J continued with the analy sis and found that Claimant had the residual functional capa city to perf orm her past rele vant work under step four and could be adjusted to other work under step five. See 20 C.F.R. §§ 404.1520a(d) (3), 416.920a(d) (3). Whil e the parties do not addre ss the AL J ’s deter

minations a t ste ps four and five, we note our belief that the AL J ’s decision was supporte d with substantial evidence with respec t to these steps as we ll. Even if a claimant has shown that she is p resumed disabled under step three , she will not qualify for disability benef its if she has the residual functional capa city to perf orm her past rele vant

wo rk under step four. 20 C.F.R. §§ 404.1520(a) (4)( iv), 416.920(a) (4)( iv). At this step, the AL J
must eng ag e in a two-par t analy sis. First, the AL J must d et er m ine whether there is a medically deter minable mental impair

me n t th a t could rea sonably be expected to produce the claimant’s alleg ed pain and sy

mptoms. See Duncan v. Sec’ y of Health & Hu m. S

er vs . , 801 F.2d 847, 853 (6th Cir. 1986); Brown v

. Bowen , No. 86-6015, 1987 U.S. App. L EXI S 16897, at *13–14 (6th Cir. D ec. 30, 1987). Second, the AL J must consider whether the alleg ed intensity , persistenc e, and limit ing eff e c ts 15No. 10-6119

o f t h e sy mptoms actua lly limit the claimant’s ability to do work—whic h require s a cre di b i l i t y finding

. Jones v . Comm’r of Soc. Se c. , 336 F.3d 469, 476 ( 6th Cir. 2003). The AL J ruled that the sever e impairments found at step two wer e lik el y t o produce Claimant’s s y

mp to ms, but that Claimant was not cre dible beca use her alleg ed mental inabilities wer e i nconsistent with her ability to follow instructions and perf orm her past employ

ment. T h i s deter mination was supported by Claimant’s expli cit admission that she was sti ll mentally capa ble of perf orming her past rele vant work and that her back pain was the only issue preve nting her from returning to that work. Fur therm o re , t h e experts ag ree d that Claimant was mentally capa ble of continuing her past rele vant work. This e vidence was substantial and supported the AL J ’s finding with respec t to step four. Finally , under step five, the AL J must deter mine whether a claimant can be adjusted to a ny other work. 42 U.S.C. § 423(d)( 2)(A) ; Poe , 342 F. App’x a t 155; 20 C.F.R. §§ 404.1520(a) (4)( v), 416.920(a) (4)( v). “The burden shift s to the Commi ssioner at this fifth step to establish the claimant’s a

bility to do other work.” Foster , 279 F.3d a t 354. The AL J ag ree d that Claimant could perf orm other work. This deter mination was supported by Daoud’ s testimony that Claimant could m en t al l y and phy sically perf orm jobs such as a ticket
counter , surveillance sy stem monitor, unskilled packa g er, and ampoule packa g er. The other experts opined that Claimant could handle one- and t wo-step job instructions and thus was suited for a varie ty of positions. The evidenc e supported the AL J ’s deter mination that Claimant was not entitled to disabilit y

benef its at step five.

16No. 10-6119

I n conclusion, we hold that the AL J ’s decision that Claimant was not mentally reta rded and thus was not entitled to d isability benef its and supplemental secur ity income was supported by

s u b s t antial evidenc e. The district court did not err in awa rding summary judgme nt to t h e Commi ssioner on this matter. B. The ALJ’s Decision Was Not Contrar y To Social S ecurit y Rulin g 96-6p C l ai mant next arg ues that the AL J ’s failure to seek updated expert analy sis follo wi n g t h e prese ntation of her school rec ord was contra ry t o S o ci al Security Administration policy , Social Security Ruling (SSR) 96-6p. SSR 96-6p provides, in re levant par t: [A] n administrative law ju dg e and the Appea ls Council must obtain an updated medical opinion from a

medical e x pert in the following circ umstances: [1.] When n o ad d i t i o n al medical evidenc e is rec eived, but in the opinion of the administrative law judge or the Appea ls Council the sy mptoms, signs, and labora tory finding s repor

ted in the ca se re cord sug g est that a judg ment of equiva lence may be rea sonable; or [2.] When additional medical evidenc e is rec eived that in t h e o p inion of the adminis t rative law judge or the Appea ls Council may chang e the State ag ency medical or psy cholog ical consultan t’ s f in d in g th a t th e im pairment(s) is not equivalent in severity

to any impairment in the L isting of I mpairments. SSR 96-6p (inter

nal footnote omitted). SSR 96-6p thus “re quires that the AL J obtain an updated medical opinion only when the AL J believes that the evidenc e could chang e a consultant’s finding that the impairment is not equivalent
to a listed impairment.” Burbo v. Comm'r of Soc. Sec. , No. 10-2016, 2011 U.S. App. L EXI S 26143,
at *6–7 (6th Cir. Sept. 21, 2011). More specific ally , the ruling “re quires an update when either (1) there is evidenc e of sy

mptoms, signs[,] and finding s that sug g est to the AL J or Appea ls Council that the applicant’ s condit i o n m ay b e equivalent to [S ection 12.05]; or (2) when additional medical 17No. 10-6119

evidenc e is rec eived that in the opinion of the administrative law judge or the Appea ls Council may chang e the State ag ency medical or psy cholog ical consultant’s finding that the impairment does not equal the listi ng s [i n Section 12.05].” Kelly ex rel. Hollowell v. Comm'r of Soc. Sec ., 314 F. App’x 827, 830 (6th Cir. 2009) (interna l quotation marks omitted). Claimant thus must demonstrate either that the s chool records sugg est that she qualified as m entally reta rded under S ection 12.05 or t hat the AL J believed the school rec ords may have c hang ed the e x perts’ f indings. First, under clause one of S S R 9 6-6p as provided above, the school rec ords alone do not establish that Claimant qualifies as mentally reta rded. H er I Q score s as a student—a full I Q score of 76, wit h a verba l score of 80 and a perf ormanc e score of 75—wer e gre ater than t he rang es t hat qualify for mental disability (at l ea s t under 70). Hanon believed that Claimant’s poor school perf ormanc e was due to non-intellectua l, outside fac tors. He n o t ed : “[T] here is some question as to how much of a true ‘slow lear ner’ [C laimant] is, as the combination of an u n s et t l ed h ome environment and poor attendance would not be conducive to helping [her] perf orm as w el l as she

m i g ht if these inhibiti ng fac tors wer e not prese nt.” This evidenc e does not support a finding t h at Claimant is mentally reta rded, but u n d er m i n es i t. I n simil ar case s, we have found that “school

rec ords do not nece ssarily show that [a claimant] had intellectual defic iencies” wher e, “[i] nstead, the

rec ords support the conclusion that [t he claimant] had poor school attendanc e and a troubled home life.” Haye

s , 357 F. Ap p ’x at 6 7 6

. Thus, the AL J did not violate SSR 96-6p in finding that the school rec ords did not sugg est that Claimant qualified under Section 12.05 as mentally reta rded. The AL J did not expli citly rule on whether an updated expert opinion was require d following the admission of the school rec ords, beca use Claimant did not r equest an updated medical opinion

18No. 10-6119

or arg ue that SSR 96-6p was violated until her appea l of the AL J ’s decision to the Appea ls Council. Howeve r, the AL J did revie w the school rec ords and expli citly conclude d that they did not support Claimant’s arg ument that she met or equale d Section 12.05. The AL J also noted in his opinion that he conside red a ll of the evidenc e in ac corda nce w ith SS R 96-6p. Claimant arg

ues that the AL J oversteppe d his authority when he “ma[de] the assumption that

a psy cholog ist would not make the diag nosis of ‘mental reta rdation’” in light of the school rec ords. Claimant’s arg ument is unpersua sive, beca use the reg ulations actua lly require the AL J to make that decision, namely , whether t h e new evidenc e would “cha ng e the State ag ency medical or psy cholog ical consultant’s finding that the impairment(s) is not equivalent in s ev erity to any impairment in the L isting of I mpairments.” SSR 96-6p; see Burbo , 2011 U.S. App. L EXI S 26143,
at *6–7; Kelly , 314 F. App’x at 830. Although the AL J did not expli citly hold that an u p d at ed medical opinion was unnece ssary , in light of his deter mination that the school rec ords did not save Claimant’s claim, he implicitl y decid ed t h at the rec ords would not chang e the opinions of the experts. We there fore find that the AL J did not violate SSR 96-6p in deciding not to reque st updated evalua tions. II. Motion to Re m and In Li ght of New Expert Evaluations During the district court proc eeding s, Claimant moved to remand unde r sentenc e six of 42 U.S.C. § 405(g ). I n our circ uit, it is unclea r whether a district court’s denial of a motion to rema nd based on se ntence six of § 405(g ) is revie wed de novo or for abuse of discretion. See F erguson v. Comm’r of Soc. Sec. , 628 F.3d 269, 276 (6th Cir. 2010); Templeton v. Comm’r of Soc. Sec. , 215 F. App’x 458, 464 n.3 (6th Cir. 2007); Cranfield v. Comm’r of Soc. Sec. , 79 F. App’x 852, 857 (6th Cir.

19No. 10-6119

2003). But see Perkins v. Apfel , 14 F. App’x 593, 600 (6th Cir. 2001) (ana ly zing the issue under an abuse of discretion standard without g iving rea sons f or doing so). Howeve r, beca use we find that 7 Claimant’s motion fails under either standard, it is unnece ssary for us to deter mine at this time which standard of

revie w applies. Sentence six of § 405(g ) addr esses situations where a Claimant submits new e vidence that

was not prese nted to the AL J but would alter the AL J ’s ultimate decision. Sentence six of § 405(g ) provides, in re levant par

t: The court

. . . may at any time order additional evidenc e to be taken befor e the Commi ssioner of Social Security , but only upon a showing that there is new evidenc e which is materia l and that there is g ood cause for the failure t o i n corpor ate such evidenc e into the rec ord in a prior proce eding; and the Commi ssioner of Social Security shall, afte r the case is rema nded, and afte r hear ing such additional evidenc e if so order ed, modify or affirm the Commi ssioner’s finding s of fac t or the Commi ssioner’s de cision, or both . . . . 42 U.S.C. § 405(g ). “[E] vidence is new only if it was ‘not in exis tence or available to the claimant
at the time of the administrative proce eding .’” Foster , 279 F.3d at 357 (quoting S u l l ivan v. Finkelstein , 496 U.S. 617, 626 (1990)). E v i dence is “mater ial” if it “would likely chang e the Commi ssioner’s decision.” Bass v. McM ahon , 499 F.3d 506, 513 (6th Cir. 2007) ; see Sizemore v. Sec’ y Health & Hum. Servs. , 865 F.2d 709, 711 (6th Cir. 1988)

. I n order to pr ove “g ood cause ,” a

Some circ uits have decide d this issue, wher eas others rema in uncer tain. See, e.g. , Bee ty- 7 Monticelli v. C omm’r of Soc. Se c. , 343 F. App’x 743, 747 n.6 (3d C ir. 2009) (declining to choose a standa rd g iven that the cla imant failed unde r any applicable standard) ; Tower v. Barnhart , 89 F. App’x 186, 188 (10th Cir. 2004) (applying de novo revie w); Harman v. Apfel , 211 F.3d 1172, 1176 n.5 (9th Cir. 2000) (re fusing to decide the standard of revie w and stating: “Unf ortunately , differ ent panels of this Court have come down on oppo s i t e s i d es o f the de novo versus abuse of discretion debate with reg ard to sentenc e-six rema nds and it is improper for us to rely upon either position until the split is resolved en banc .”). 20No. 10-6119

Claimant mus t “demonstra t[ e] a rea sonable justification for the failure to acquir e and prese nt the evidenc e for inclusion in the hear ing befor e the AL J .” Foster , 279 F.3d at 357; W illi s v. Sec’

y Health & Hum. Servs. , 727 F.2d 551, 554 (1984) (per curia m). This includes detailing the obstacles that preve nted the admission of the e vidence

. Bass , 499 F.3d a t 513

. The mer e fa ct that evidenc e

was not in exis tence at the time of the AL J ’s decision does not nece ssarily satisfy the “g ood cause ” require ment. This Court takes “a harde r line on the g ood cause test” with respe ct to timing and thus require s that the claimant “g ive a valid rea son for his failure to obtain evidenc e prior to the hear ing.” Oliver v. S

ec ’y o f Health & Hum. Servs. , 804 F.2d 964, 966 (6th Cir. 1986). When we g rant a sentenc e-six motion, we neither aff irm nor reve rse the AL J ’s decision, but simply rema nd for further fac t-finding

. Melk

onyan , 501 U.S. at 98. Claimant asser

ts that Dr. Har

tmann’s opinion and Ms. Moore’ s assessment are new, materia l evidenc e that would impact the AL J ’s decision, thus requiring rema nd under sent ence six

. Dr. Har tmann’s and Ms. Moore’ s evalua tions wer e not in exis tence when AL J issued its d ec i s ion in Oc t o b er 2008, beca

use Claimant’s counsel did not solicit them until Fe bruar y 2010 and J an u ar y 2010, respe ctively

. Howeve r, timing alone does not satisfy the “g ood cause ” require ment. Oliver , 804 F.2d at 966. Claimant’s sole rea son for failing to obtain this evidenc e in time to prese nt it to the AL J is that she could not “anticipa te that the Commi ssioner [would] violate his own Social Security Ruling 96-6p.” Presumably , Claimant is arg uing that she could not anticipate that the AL J would fi nd that she di d not qualify as m entally disabled and there fore that she would need to b o l s t er h er

case with addit i o n al ev i d ence . Claimant’s arg ument is frivolous and fails to provide a rea soned explanation for or detail t he obst acle s that hindere d her from s ee k ing the evalua tions sooner. See

21No. 10-6119

Bass , 499 F.3d at 513; Olive r , 8 0 4 F. 2 d at 966. A party should alway s anticipate that a decision maker might rule ag ainst it. A belief that one would not “lose” g iven the evidenc e admitted cannot
meet the “g ood cause ” standard for failing to obtain o r s u b m i t all useful evidenc e in the first instance. Be cause Claimant cannot show g ood cause for her failure to obtain t h e o p i n i o ns of Dr. Har tmann and Ms. Moore prior to th e ALJ ’s d ec ision, Claimant is not entitled to rema nd under
sentenc e six of § 405(g ). Claimant’s reque st for rema nd under sentenc e six may also fail beca use the new evidenc e is
not “mater ial” in that both Dr. Har tmann and Ms. Moore found that Claimant was “mildly mentally
reta rded,” which was consistent with the prior experts’ finding s. Moreove r, the I Q test administered by Moore y ielded an overa ll I Q of 67, m u ch h i gh er than her score of 59 from the I Q test administered by Dr. Schmidtgoessling and prese nted to the AL J

. Thus, Moore’ s repor t may actua lly undermine Claimant’s claim of materia lity

. Reg ardle ss, beca use there was clea

rly no “g ood cause ” for Cl aimant’s failure to obtain these two evalua tions prior to the AL J ’s decision, Claimant is not entitled to a sentenc e six rema nd. CONCLUSION For the rea sons discussed above, this Court AF F IRMS the district co urt’s order g ranting summary judgme nt to the Comm issioner and de ny ing Claimant’s motion to remand.

22