-1-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEOEA COLEMAN, 

Plaintiff, Civil Action No. 09-12993

v. HON. SEAN F. COX

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff Keoea Coleman brings this action under 42 U.S.C. §405(g) challenging a

final decision of Defendant Commissioner denying her application for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act.

Both parties have filed summary judgment motions which have been referred for a Report

and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below,

I recommend that Defendant’s Motion for Summary Judgment be GRANTED, and that

Plaintiff’s Motion for Summary Judgment be DENIED. 

PROCEDURAL HISTORY

 On July 16, 2006, Plaintiff filed applications for DIB and SSI, alleging an onset of

disability date of May 15, 2006 (Tr. 94-98, 99-101). After the initial denial of her claims,

Plaintiff filed a request for an administrative hearing, held on December 11, 2008 in Falls
-2-

Church, Virginia before Administrative Law Judge (“ALJ”) Deborah Arnold (Tr. 31).

Plaintiff, represented by attorney Matthew Taylor, testified by teleconference from Flint,

Michigan, as did Vocational Expert (“VE”) Mary Williams (Tr. 35-45, 45-48). On February

4, 2009, ALJ Arnold found that Plaintiff could perform a full range of exertional work

limited to “simple, repetitive tasks” (Tr. 16, 20). On June 17, 2009, the Appeals Council

denied review (Tr. 1-3). Plaintiff filed for judicial review of the administrative decision on

July 29, 2009. 

BACKGROUND FACTS

Plaintiff, born July 5, 1982, was 26 when the ALJ issued her decision (Tr. 16, 94).

She completed high school (special education) and worked previously as a cashier, greeter,

and home health care aide (Tr. 128). Plaintiff alleges disability as a result of a learning

disability and back problems (Tr. 127). 

A. Plaintiff’s Testimony

Plaintiff testified that after graduating from high school, she attended job training

classes (Tr. 36). Reporting that she had not worked in at least two years, Plaintiff alleged

that she had been unable to keep up the pace of work required for either the cashier or gas

station attendant positions (Tr. 36-37, 42). She indicated that for a time she had also drawn

a paycheck from the state for taking care of her disabled mother, adding that various relatives

helped her fulfill her home care aide responsibilities (Tr. 37-38, 44). She stated that she had

passed a road test to obtain her driver’s license, but had not sat for a written exam (Tr. 38).

Plaintiff testified that she currently lived in a rented house with her six-year-old and six-
-3-

month-old children, noting that her aunt and grandmother lived nearby (Tr. 38-39). 

Plaintiff reported that she currently took Motrin and Flexeril for back pain and muscle

spasms (Tr. 39-40). She alleged depression, but noted that she had not been seen by a doctor

for the condition (Tr. 40). Plaintiff testified that she spent large portions of her day watching

television and sleeping (Tr. 40). She indicated that family member generally accompanied

her when she went grocery shopping due to her tendency to “spend too much” (Tr. 41). She

reported that she could read a newspaper but would not “be able to explain” what she was

reading (Tr. 41). Plaintiff added that she quit working at McDonald’s because she “didn’t

like the job,” noting that she was told by her supervisor that she was too slow (Tr. 43). She

alleged that she became nervous when surrounded by a group of people while working (Tr.

43). 

B. Medical Evidence

1. Treating Sources

Plaintiff’s high school records show that in February, 2001, post-graduation

transitional training was recommended (Tr. 190). A post-graduate evaluation indicates that

earlier intelligence testing showed a sequential ability score of 70, a simultaneous ability

score of 85, and a composite score of 75 (Tr. 195). Plaintiff expressed a desire to work once

her child was older (Tr. 202). Emergency room notes created in August, 2004 showed the

absence of muscular/skeletal difficulties (Tr. 237). In October, 2004, Plaintiff sought

emergency treatment for back and abdominal pain (Tr. 233). 

In January, 2007, Plaintiff began a course of mental health counseling (Tr. 319, 326,
1

A GAF score of 41-50 indicates "[s]erious symptoms ... [or] serious impairment in

social, occupational, or school functioning," such as inability to keep a job. American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 34

(DSM-IV-TR ) (4th ed.2000). 

-4-

335). She was assigned a GAF of 48 with a fair prognosis1 (Tr. 337). C.A.N. Rao, M.D.,

performed a psychological assessment in March, 2007 and prescribed Celexa for depression

(Tr. 324). She assigned Plaintiff a GAF of 50 (Tr. 324). April, 2007 notes indicate that

Plaintiff was discharged after failing to show up for an appointment or responding to

telephone calls or letters (Tr. 320). A medication review from the same month states that

Plaintiff was “friendly and talkative” (Tr. 322). Upon resuming mental health treatment in

September, 2008, Plaintiff was well groomed and cooperative, but alleged anxiety and

depression (Tr. 354). Plaintiff was again assigned a GAF of 50 with a fair prognosis (Tr.

356). 

2. Consultive and Non-examining Sources

In October, 2006, Mark Zaroff, Ph.D., performed a consultive psychological

evaluation of Plaintiff on behalf of the SSA (Tr. 290-295). Dr. Zaroff, noting a history of

learning disability and vision problems, observed that Plaintiff admitted to good corrected

vision (Tr. 290). Plaintiff reported minimal back problems (Tr. 290). She indicated that she

met with friends on a regular basis (Tr. 291). Plaintiff, alleging a childhood molestation by

her brother, reported that she currently got along well with her sisters (Tr. 291). She

indicated that she spent her time cooking, cleaning, and caring for her daughter (Tr. 291).

Dr. Zaroff noted that she answered questions “well” but displayed “poor motivation” (Tr.
-5-

291-292). Intelligence testing revealed a verbal IQ of 71, performance IQ of 78, and a full

scale IQ of 67 (Tr. 292). Citing Plaintiff’s current unemployment and lack of social support,

Dr. Zaroff assigned Plaintiff a GAF of 48 with a “poor” prognosis (Tr. 295). 

The same month, Joe DeLoach, Ph.D., performed a non-examining Mental Residual

Functional Capacity Assessment of Plaintiff, finding that her ability to understand and

remember detailed instructions, carry out detailed instructions, maintain concentration,

conform to attendance policies, and work without supervision was moderately impaired (Tr.

296). Likewise, her ability to complete a workweek without psychologically based

interruptions, accept instruction, get along with coworkers, respond appropriately to

workplace changes, and set realistic goals was deemed moderately limited (Tr. 297). Dr.

DeLoach concluded nonetheless that “Plaintiff retain[ed] the capacity to perform simple tasks

on a sustained basis” (Tr. 298). 

The same month, Dr. DeLoach completed a Psychiatric Review Technique, finding

that Plaintiff experienced mild mental retardation (Tr. 300, 304). Under the “B” criteria,

Plaintiff’s concentration, persistence, and/or pacing abilities were deemed moderately limited

(Tr. 310). The Technique found no episodes of decompensation (Tr. 310). 

 C. Vocational Expert Testimony

At the administrative hearing, the ALJ began her examination of the VE by posing the

following hypothetical question: 

“[I]f somebody’s limited to performing simple, repetitive tasks with no

relevant work experience, they’re 26 years old and have the equivalent of a

fourth grade education, are there jobs such a person could do?” 
2

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. 

-6-

(Tr. 45). The VE responded that the hypothetical individual could perform the exertionally

light work of an assembler (10,500 positions in the regional economy), inspector (2,500), and

packer (16,000), noting that the job numbers were reduced to account for Plaintiff’s limited

education and a preclusion on “fast paced production” work2

 (Tr. 46). VE Williams found

that the job numbers would remain unchanged if the individual was limited occasional

contact with the public (Tr. 47). As to sedentary work, the VE testified that the same

individual could perform the work of an assembler (3,300), machine operator (380), and

inspector (600) (Tr. 47). The VE stated that her testimony was consistent with the

information found in the Dictionary of Occupational Titles (“DOT”) and Selected

Characteristics of Occupations (“SCO”) (Tr. 47). VE Williams remarked that the need to

be redirected several times during the course of the day, if added to the hypothetical

limitations, “would impact employment” and “could preclude employment” (Tr. 47). 

 D. The ALJ’s Decision

 Citing Plaintiff’s medical records, ALJ Arnold found that Plaintiff experienced the

“severe” impairment of mental retardation but because the condition was mild it did not meet

or medically equal any listed impairment found in Appendix 1, Subpart P, Regulation No.
-7-

4 (Tr. 14-15). The ALJ determined further that Plaintiff experienced the non-severe

impairments of obesity and mild depression (Tr. 14). 

The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) for “a

full range of work at all exertional levels” but was limited to performing “simple, repetitive

tasks” (Tr. 16). Citing the VE’s job numbers, supra, the ALJ determined that Plaintiff could

perform the exertionally light jobs of assembler, inspector, or packer, and the sedentary jobs

of assembler, machine operator, and inspector (Tr. 19). 

 The ALJ found Plaintiff’s allegations of disability “not credible to the extent they are

inconsistent with the residual functional capacity assessment,” determining that the medical

records supported a finding of non-severe psychological and back problems (Tr. 14, 17-18).

 The ALJ cited Dr. Zaroff’s observations that Plaintiff had “had adequate contact with reality

and exhibited normal motor activity” (Tr. 18). Acknowledging Plaintiff’s sporadic work

history, the ALJ reasoned that the “lack of job success does not mean she is unable to do any

work at all” (Tr. 17). 

 STANDARD OF REVIEW

 The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
-8-

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6th Cir. 1989).

 FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as the “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

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof as steps one through four, but the burden shifts to the Commissioner at
-9-

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.”

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

 Listing § 12.05(C) 

Plaintiff’s counsel argues that the ALJ erred in not finding her disabled at Step Three

of the sequential analysis. Plaintiff’s Brief at 3-6, Docket #15. Specifically, she contends

that record evidence, showing a full scale IQ between 60 and 70, coupled with emotional

limitations, mandates a disability finding pursuant to Listed Impairment §12.05(mental

retardation) of 20 C.F.R. Subpart P, Appendix 1. Id. 

To establish disability as a result of mental retardation, “a claimant must demonstrate

three factors to satisfy the diagnostic description: (1) sub-average intellectual functioning;

(2) onset before age twenty-two; and (3) adaptive-skills limitations.”Hayes v. Commissioner

of Social Sec., 357 Fed.Appx. 672, 675, 2009 WL 4906909, *2 (6th Cir. 2009). “Beyond

these three factors, a claimant also must satisfy ‘any one of the four sets of criteria’ in Listing

§ 12.05. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A).” Id.; Foster v. Halter 279 F.3d 348,

354 -355 (6th Cir. 2001). 

“(A) Mental incapacity evidenced by dependence upon others for personal

needs (e.g. toileting, eating, dressing or bathing) and inability to follow

directions, such that the use of standardized measures of intellectual

functioning is precluded;

(B) A valid verbal, performance, or full scale IQ of 59 or less; or
-10-

(C) 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; or

(D) A valid verbal, performance, or full scale IQ of 60 through 70 and a

physical or other mental impairment resulting in at least two of the following:

(1) Marked restriction of activities of daily living; or

(2) Marked difficulties in maintaining social functioning;

(3) Marked difficulties in maintaining concentration, persistence, or 

 pace; or

(4) Repeated episodes of decomposition, each of extended duration.”

Listing § 12.05. 

Plaintiff argues that she is entitled to disability pursuant to subsection C, citing record

evidence showing a full scale IQ of 67 (Tr. 292). She contends that she also experiences the

“significant work-related” limitation of depression, asserting that the ALJ impermissibly

overlooked or discounted this evidence. Plaintiff cites Dr. Rao’s March, 2007 treating notes

to support the conclusion that she experienced significant depression and anger management

problems. Plaintiff’s Brief at 4 (citing Tr. 324). 

 To be sure, the record contains evidence that she experienced limitations other than

mild retardation. However, substantial evidence also supports the opposite conclusion. The

Court is mindful that an impairment should be omitted at Step Two i.e. deemed non-severe

“only if the impairment is a ‘slight abnormality which has such a minimal effect on the

individual that it would not be expected to interfere with the individual's ability to work,

irrespective of age, education and work experience.’" Farris v. Secretary of HHS , 773 F.2d
-11-

85, 89 (6th Cir. 1985) (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)). 

However, the ALJ, deliberately omitting depression from the Step Two “severe”

impairments, adequately supported her findings that depression created only de minimis

limitations:

“The record indicates the claimant has experienced some problems with

depression. However, her depression appears to be mild and controlled by

medication. . . . [I]n April, 2007, the claimant admitted her medications

(Celexa for depression, Trileptal for mood swings, and Geodone for sleep)

were beneficial. . . . She reported the medications were helping her to sleep

and relax. She also indicated she was not getting moody or upset. She

reported no side effects from her medication”

(Tr. 14). The ALJ, also noting that Plaintiff was no longer taking medication, observed that

the 26-year-old was nonetheless capable of living alone in a house with her two children and

performing cleaning, cooking, and laundry chores (Tr. 14). Likewise, a third-party report

states that Plaintiff prepared multi-course meals, paid bills, and shopped for clothes (Tr. 153).

Plaintiff herself admitted that she met with friends on a regular basis (Tr. 291). 

 Plaintiff faults the ALJ for omitting mention of some of the medical records favorable

to the disability claim. Plaintiff’s Brief at 5. However, the ALJ was not required to discuss

every scrap of evidence supporting the disability claim in light of substantial evidence

supporting the opposite conclusion. “While it might be ideal for an ALJ to articulate his

reasons for crediting or discrediting each . . . opinion, it is well settled that ‘an ALJ can

consider all the evidence without directly addressing in his written decision every piece of

evidence submitted by a party.” Kornecky v. Commissioner of Social Security, 2006 WL

305648, *8-9 (6th Cir. 2006)(citing Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436,
-12-

453 (6th Cir.1999)). 

Ms. Coleman’s low IQ and GAF scores are of concern, and she clearly has intellectual

and psychological impairments that impact the range of activities of which she is capable,

both inside and outside the workplace. Indeed, if I were reviewing this case de novo, I might

come to a different conclusion. However, under the “substantial evidence” standard, 

The ALJ’s determination is well within the “zone of choice” accorded the administrative

fact-finder, and should remain undisturbed by this Court. Mullen v. Bowen, supra. 

CONCLUSION

For the reasons stated above, I recommend that Defendant’s Motion for Summary

Judgment be GRANTED, and that Plaintiff’s Motion for Summary Judgment be DENIED.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v.

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D.

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
-13-

Within fourteen (14) days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained within

the objections. 

S/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: August 26, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on August 26, 2010.

S/G. Wilson 

Judicial Assistant