UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TAMI R. McCOY, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Case No. 2:17-cv-191 

JUDGE GEORGE C. SMITH 

Magistrate Judge Vascura 

OPINION AND ORDER 

Plaintiff, Tami R. McCoy (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her 

application for social security disability insurance benefits. This matter is before the Court on 

Plaintiff’s Statement of Errors (Doc. 12), the Commissioner’s Memorandum in Opposition (ECF 

No. 16), and the administrative record (ECF No. 10). For the following reasons, the Court 

OVERRULES Plaintiff’s Statement of Errors and AFFIRMS the Commissioner’s decision. 

I. BACKGROUND 

Plaintiff filed her application for Title II Social Security Benefits on April 5, 2013, alleging 

that she had been disabled since April 1, 2013 due to having been born without a thyroid, mood 

disorder, and weakness in her legs that limits her mobility. (Doc. 10, Administrative Record 

(“AR”) at 133–46). On November 19, 2015, following initial administrative denials of Plaintiff’s 

application, a hearing was held before Administrative Law Judge Timothy G. Keller (the “ALJ”). 

(Id. at 881–91). The ALJ determined that updated medical records were required, and the case 
2 

was continued. (Id. at 889–90). A second hearing was held before the ALJ on March 17, 2016. 

(Id. at 892–906). 

At the second hearing, Plaintiff, represented by counsel, appeared and testified. Plaintiff 

testified that she had for several years been working 20 hours per week at Taco Bell. (Id. at 895). 

Taco Bell would give her additional hours each week if she asked, but she had for several years 

had problems with her knees that prevent her from standing for long periods and do not permit her 

to work longer than a four-hour shift in a day. (Id. at 896). She typically sits for five minutes out 

of each four-hour shift, with additional “little breaks” when permitted by her shift manager. (Id.

at 900). She drives herself to work and back, which takes approximately 25 minutes each way. 

(Id. at 901). At home, her inability to stand for long periods causes difficulty completing tasks 

like washing dishes, cooking and laundry without taking frequent breaks. (Id. at 898, 900). She 

lives with her husband, who helps around the house, but he also must take breaks due to his own 

disability. (Id. at 901). Her hobbies include coloring adult coloring books. (Id. at 902). 

Vocational Expert Eric Pruitt (the “VE”) also testified at the second hearing. (Id. at 902–

05). The VE classified Plaintiff’s past relevant work as housekeeping and fast food worker, both 

light, unskilled positions. (Id. at 903). The ALJ proposed a hypothetical regarding Plaintiff’s 

residual functional capacity (“RFC”)1 to the VE. (Id. at 903). The VE testified that Plaintiff would 

not be able to return to either of her previous past relevant work positions. (Id. at 904). 

On April 18, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within 

the meaning of the Social Security Act. (Id. at 17–32). The ALJ noted that Plaintiff met the 

insured status requirements through December 31, 2019. (Id. at 17). At step one of the sequential 

 

1

 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20 C.F.R. 

§ 404.1545(a)(1). 
3 

evaluation process,2

 the ALJ found that Plaintiff had not engaged in substantially gainful activity 

during the period from her alleged onset date of April 1, 2013, through the date of the second 

hearing. (Id. at 19). The ALJ found at step two that, through the date of the second hearing, 

Plaintiff had the severe impairments of thyroid disorder, left heel spur and plantar fasciitis postsurgery, cervical degenerative disc disease, obesity, degenerative changes of the bilateral knees, 

and affective and anxiety disorders with borderline intellectual functioning. (Id. at 20). 

The ALJ concluded at step three that Plaintiff did not, however, have an impairment or 

combination of impairments that met or medically equaled one of the listed impairments described 

in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.). He specifically identified Listings 1.02, 1.04, 

9.0, 12.04, 12.05, and 12.06 as Listings he considered. (Id.). With respect to Listing 12.05, the 

ALJ concluded that Plaintiff did not satisfy the paragraph C criteria because “[Plaintiff] does not 

have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental 

impairment imposing an additional and significant work-related limitation of function.” (Id. at 

22). 

At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows: 

After careful consideration of the entire record, the [ALJ] finds that [Plaintiff] has 

the residual functional capacity to lift, carry, push and pull twenty pounds 

 

2

 Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential evaluation of 

the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step terminates the ALJ’s 

review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review 

considers and answers five questions: 

1. Is the claimant engaged in substantial gainful activity? 

2. Does the claimant suffer from one or more severe impairments? 

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the criteria of an 

impairment set forth in the Commissioner’s Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1? 

4. Considering the claimant's residual functional capacity, can the claimant perform his or her past 

relevant work? 

5. Considering the claimant’s age, education, past work experience, and residual functional capacity, can 

the claimant perform other work available in the national economy? 

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279 

F.3d 348, 354 (6th Cir. 2001). 
4 

occasionally, ten pounds frequently; stand and walk for four of eight hours; sit for 

six of eight hours; occasionally use left foot controls; occasionally climb, stoop, 

crouch, kneel, and crawl. Mentally, [Plaintiff] retains the ability to understand, 

remember, and carry out simple repetitive tasks, maintain attention and 

concentration for two hour segments over an eight hour work period, respond 

appropriately to supervisors and co-workers, adapt to simple changes and avoid 

hazards in a setting without strict production quotas. 

(Id. at 22). 

As to Plaintiff’s alleged mental impairments, the ALJ assigned “significant weight” to the 

mental assessments of the State agency psychological consultants, “with the exception of the 

requirement for only superficial interaction with others.” (Id. at 29). The ALJ determined that 

[t]his limitation is not supported by objective evidence in the record (Exhibits 1A, 

3A, 18F, 12E). [Plaintiff] has reported no problems getting along with anyone but 

one supervisor at a past job. She has reported getting along with family and friends. 

She has nearly continuously worked at Taco Bell throughout the period of alleged 

disability. 

(Id. at 29). Relying on the VE’s testimony, the ALJ determined that Plaintiff is capable of making 

a successful adjustment to other work that exists in significant numbers in the national economy. 

He therefore concluded that Plaintiff was not disabled under the Social Security Act during the 

relevant period. (Id. at 31). 

II. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 

§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 
5 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). 

Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to that 

finding ‘even if there is substantial evidence in the record that would have supported an opposite 

conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 

F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence 

standard, “a decision of the Commissioner will not be upheld where the SSA fails to follow its 

own regulations and where that error prejudices a claimant on the merits or deprives the claimant 

of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007). 

III. ANALYSIS 

Plaintiff raises four issues in her Statement of Errors (Doc. 9): 

(1) The ALJ erred in his step three analysis of Listing 12.05C; 

(2) The ALJ’s decision does not contain an exhibit list as required by HALLEX I-2-1-

20, depriving Plaintiff of her due process rights; 

(3) The ALJ’s findings are internally inconsistent; and 

(4) The ALJ’s weighing of State agency expert opinions is not supported by substantial 

evidence. 

The Court will address each of these issues in turn. 

A. Analysis of Listing 12.05C 

To satisfy Listing 12.05, a claimant must first satisfy the diagnostic description applicable 

to all intellectual disabilities under § 12.05, namely, that she experiences “significantly subaverage 
6 

general intellectual functioning with deficits in adaptive functioning [that] initially manifested 

during the developmental period; i.e., the evidence demonstrates or supports onset of the 

impairment before age 22.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Next, the claimant must 

satisfy the criteria of any one of Listing 12.05’s Paragraphs A, B, C, or D. Id. Here, Plaintiff 

challenges only the ALJ’s findings as to Paragraph C, which requires that (a) she has a “valid 

verbal, performance, or full scale IQ of 60 through 70”; and (b) she suffers from “a physical or 

other mental impairment imposing an additional and significant work-related limitation of 

function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C; West v. Com’r Soc. Sec. Admin., 240 F. 

App'x 692, 697–98 (6th Cir. 2007). The claimant must demonstrate that her impairments meet the 

diagnostic description and both prongs of Paragraph C to satisfy Listing 12.05C. Foster v. Halter, 

279 F.3d 348, 354 (6th Cir. 2001). 

As to the Paragraph C criteria, the ALJ noted that “[Plaintiff] received a full scale IQ of 

70, a verbal performance IQ of 72, and a performance IQ of 68 on the WAIS-IV in 1992” when 

she was 21 years of age. (AR at 22, 175). And “[i]n cases where more than one IQ is customarily 

derived from the test administered, e.g., where verbal, performance, and full scale IQs are provided 

in the Wechsler series, we use the lowest of these in conjunction with 12.05.” 20 C.F.R. § Pt. 404, 

Subpt. P, App. 1, § 12.00D(6)(c). There is thus no question that Plaintiff meets the first Paragraph 

C criterion. 

However, the ALJ concluded that Plaintiff did not meet the second Paragraph C criterion 

because she did not have “a physical or other mental impairment imposing an additional and 

significant work-related limitation of function.” (Id. at 22). He primarily based this conclusion 

on Plaintiff’s maintaining full-time employment continuously from 2001 through 2012 and parttime employment continuously thereafter. (Id. at 22, 203). The ALJ reached this conclusion 
7 

despite noting that Plaintiff “reduced her hours due to physical impairments” (i.e., her inability to 

stand for long periods of time due to problems with her knees). (Id. at 22). 

This portion of the ALJ’s analysis of Listing 12.05C is not supported by substantial 

evidence. The second Paragraph C criterion requires either a physical or mental impairment that 

significantly limits Plaintiff’s work-related functioning; yet the ALJ appears to have erroneously 

limited his consideration to Plaintiff’s mental impairments. While her mental impairment may 

not, on its own, have significantly limited Plaintiff’s work-related functioning, that is not what 

Paragraph C requires. 

The ALJ already determined in step two that Plaintiff had multiple severe impairments 

including “degenerative changes of the bilateral knees” (Id. at 20), and he could only have 

concluded that this impairment was “severe” for step two purposes if it “significantly limits 

[Plaintiff’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). 

Logically, if Plaintiff’s degenerative changes of the bilateral knees significantly limit her physical 

ability to do basic work activities, they must also significantly limit Plaintiff’s work-related 

functioning as required by Paragraph C. Accordingly, the ALJ’s own earlier findings demonstrate 

that Plaintiff meets the Paragraph C criteria. 

However, this error in analyzing the Paragraph C criteria was ultimately harmless, because 

there is substantial evidence to support the ALJ’s finding that “the record does not support deficits 

in adaptive functioning” as required by the diagnostic description for Listing 12.05. (AR at 22). 

Adaptive functioning includes a claimant’s effectiveness in areas such as social skills, 

communication skills, and daily living skills. West, 240 F. App’x at 699 (citing Heller v. Doe by 

Doe, 509 U.S. 312, 329 (1993). The Sixth Circuit has upheld ALJ determinations that claimants 

lack deficits in adaptive functioning when claimants are able to, e.g., work, do household chores, 
8 

manage their finances, take public transportation, interact with friends and family, and care for 

their daily needs. E.g., West, 240 F. App’x at 698; Justice v. Comm’r Soc. Sec. Admin., 515 F. 

App’x 583, 587 (6th Cir. 2013); Hayes v. Comm'r of Soc. Sec., 357 F. App’x 672, 677 (6th Cir. 

2009). While Plaintiff is correct that the plain language of Listing 12.05 does not identify how 

severe limitations must be to qualify as “deficits in adaptive functioning,” case law from the Sixth 

Circuit and other federal courts suggest that deficits must be relatively significant to satisfy the 

Listing. Robinson v. Comm’r of Soc. Sec., No. 2:13-CV-530, 2014 WL 3419309, at *8 (S.D. Ohio 

July 10, 2014) (Deavers, M.J.) (collecting cases), report and recommendation adopted, No. 2:13-

CV-530, 2014 WL 4748483 (S.D. Ohio Sept. 23, 2014) (Sargus, J.). 

In evaluating Plaintiff’s adaptive functioning, the ALJ relied on Plaintiff’s successful 

graduation from high school, her regular earnings through the present, and stated that “[e]vidence 

reveals that she is able to engage in substantial activities of daily living.” (Id.). Additionally, in 

evaluating criteria for Paragraph D of Listing 12.05 (which findings Plaintiff does not challenge), 

the ALJ noted that 

The claimant reported activities of cooking, cleaning, and doing laundry. She 

reported shopping in stores and online. She also reported caring for her son when 

he stays with them and attending his games. Other activities included reading, 

watching television, playing sports, listening to music, caring for pets, coloring, 

and talking to others on the phone. The claimant has also been working part-time, 

reduced from full-time, during the period of alleged disability. Although the 

claimant was on temporary leave at the time of the second hearing, the claimant 

reported normally working four days a week for twenty hours a week and driving 

twenty-five minutes to and from work. She reported not being able to pay attention 

long, having difficulties with concentration, and not handling stress or changes in 

routine well. 

Plaintiff’s abilities are similar to those of claimants determined by the Sixth Circuit to lack deficits 

in adaptive functioning. The Court therefore finds that there is substantial evidence to support the 

ALJ’s conclusion that Plaintiff’s impairments did not meet or medically equal the severity of 

Listing 12.05C. 
9 

B. Exhibit list required by HALLEX § I-2-1-20 

The Hearings, Appeals, and Litigation Law (“HALLEX”) manual “defines procedures for 

carrying out policy and provides guidance for processing and adjudicating claims at the Hearing, 

Appeals Council, and Civil Actions Levels.” HALLEX § I-1-0-1. If the ALJ issues an unfavorable 

decision, he must prepare a final exhibit list to protect the claimant’s due process rights. HALLEX 

§ I-2-1-20(B)(3). The purpose of the exhibit list is to identify for the claimant the information the 

ALJ relied on when making the decision. Id. “When an ALJ issues a less than fully favorable 

decision, preparing the exhibit list in final form is mandatory and is not a discretionary practice.” 

Id.

“It is an elemental principle of administrative law that agencies are bound to follow their 

own regulations.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004). Generally, 

however, federal courts review decisions of administrative agencies for harmless error. Rabbers 

v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654–55 (6th Cir. 2009). Accordingly, “an agency’s 

violation of its procedural rules will not result in reversible error absent a showing that the claimant 

has been prejudiced on the merits or deprived of substantial rights because of the agency’s 

procedural lapses.” Connor v. United States Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir. 

1983). 

The Commissioner does not dispute that the ALJ did not provide an exhibit list in final 

form after he issued an unfavorable decision. However, the Commissioner correctly points out 

that Plaintiff has made no attempt to demonstrate prejudice from this technical violation. Indeed, 

Plaintiff’s counsel specifically stated at the second hearing that he had no objections to the exhibit 

list then available (consisting of Exhibits 1A through 28F, along with additional documents 

Plaintiff provided at the second hearing that were marked as “next in line in the F section”), and 

Plaintiff does not argue that the final exhibit list would in any way differ from that available at the 
10 

hearing. (AR at 895). Further, throughout the ALJ’s written decision, he cited to the 

administrative record and indicated each record on which he relied at each step of the sequential 

evaluation. Thus, Plaintiff had notice of the exhibits relied upon by the ALJ and any error resulting 

from the ALJ’s failure to provide an exhibit list in final form was harmless. See, e.g., Pearson v. 

Colvin, No. 2:14-CV-26, 2015 WL 3757122, at *31 (N.D.W.Va. June 16, 2015) (failure to provide 

HALLEX exhibit list in final form was harmless error when plaintiff’s counsel had opportunity to 

review and did not object to exhibit list at hearing, and ALJ’s decision cited exhibits relied upon). 

C. Internal inconsistencies in the ALJ’s findings 

Plaintiff argues that the ALJ’s findings are internally inconsistent because he determined 

that Plaintiff has moderate difficulties in social functioning at step and three of the sequential 

analysis (AR at 21), yet failed to include any limitations in social functioning when assessing 

Plaintiff’s residual functional capacity (“RFC”) at step four. (AR at 22). The Commissioner 

argues that no such restrictions were necessary because Plaintiff had demonstrated her ability to 

respond appropriately to supervisors and co-workers through her many years of continuous 

employment. 

An ALJ need only include limitations arising from an impairment where the impairment 

affects a claimant’s capacity to work: 

The RFC describes the claimant’s residual abilities or what a claimant can do, not 

what maladies a claimant suffers from—though the maladies will certainly inform 

the ALJ’s conclusion about the claimant’s abilities. A claimant’s severe 

impairment may or may not affect his or her functional capacity to do work. One 

does not necessarily establish the other. 

Griffeth v. Comm’r, 217 F. App’x 425, 429 (6th Cir. 2007) (internal quotation marks and citations 

omitted). Thus, the ALJ’s finding that Plaintiff has moderate difficulties in social functioning did 

not automatically require the inclusion of limitations on social functioning in Plaintiff’s RFC. 
11 

Further, the ALJ concluded that no such restrictions were necessary because Plaintiff 

worked successfully for many years with co-workers, supervisors, and the public. (AR at 22, 26). 

Plaintiff was continuously employed from 2001 through the date of the second hearing, first at a 

hotel during 2001–2005 and then at two different Taco Bell locations during 2005–2016. (Id.). 

During these years, Plaintiff reported only one incident in which she had trouble getting along with 

a supervisor at her hotel job in 2005; otherwise she had no difficulty getting along with co-workers 

and supervisors. (Id. at 22, 26, 282). Given Plaintiff’s lack of documented work-related social 

functioning difficulties, the ALJ’s omission of any restriction on social functioning from Plaintiff’s 

RFC is supported by substantial evidence. 

D. Weighing of State agency expert opinions 

Similarly, Plaintiff argues that the ALJ erroneously discounted the portions of the State 

agency psychological consultants’ opinions that recommended “only superficial interactions with 

others.” (AR at 29). While State agency psychological consultants are “are highly qualified . . . 

psychologists . . . who are also experts in Social Security disability evaluation,” ALJs “are not 

bound by any findings made by State agency medical or psychological consultants.” 20 C.F.R. § 

404.1527(e)(2)(i). Instead, the ALJ evaluates the State agency psychological consultant’s findings 

using the relevant factors laid out in 20 C.F.R. § 404.1527, “such as the consultant’s medical 

specialty and expertise in our rules, the supporting evidence in the case record, supporting 

explanations the medical or psychological consultant provides, and any other factors relevant to 

the weighing of the opinions.” 20 C.F.R. § 404.1527(e)(2)(ii). 

Here, the ALJ specifically considered the opinions of State psychological consultants Drs. 

Fernandez and Goldsmith, who performed psychological assessments of Plaintiff on August 13, 

2013 and February 14, 2014, respectively. (AR 33–47, 388–405). Both consultants determined 

that Plaintiff was “moderately limited” in her ability “to interact appropriately with the general 
12 

public.” (Id. at 44, 403). By way of explanation, both consultants included the following identical 

remarks: “She reports some problems with anxiety, for example losing track of what she is doing 

if someone is watching her do it. She does not socialize with friends. She can interact superficially 

with others.” (Id. at 44, 404). 

The ALJ determined that Drs. Fernandez and Goldsmith’s recommendations that Plaintiff 

be limited to superficial interaction with others was unsupported by the record. (Id.at 29). In 

particular, her continuous work history over many years, with only one reported problem with a 

supervisor at a previous job in 2005, suggest that Plaintiff is capable of interacting with others 

without restriction. (Id.). While Plaintiff faults the ALJ for focusing on her work history to the 

exclusion of social difficulties in other areas, the ALJ was evaluating Plaintiff’s RFC for the 

purposes of employment. Thus, her work history is especially relevant to determining any 

necessary restrictions. Even though she may not socialize with friends, this has not negatively 

affected her ability to work continuously during the period of disability. Therefore, the ALJ’s 

decision to give little weight to the State agency psychological consultants’ recommendations 

regarding superficial interactions with others was supported by substantial evidence. 

IV. CONCLUSION 

In sum, from a review of the record as a whole, the Court concludes that substantial 

evidence supports the ALJ’s decision denying benefits. Accordingly, the Court OVERRULES 

Plaintiff’s Statement of Errors and AFFIRMS the Commissioner of Social Security’s decision. 

The Clerk shall remove Document 12 from the Court’s pending motions list and enter final 

judgment in favor of Defendant. 

IT IS SO ORDERED. 

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE 

UNITED STATES DISTRICT COURT