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 Fed. R. Civ. P. 56(c) states, in pertinent part, that “(t)he judgment sought should be

rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue of material fact and that the movant is entitled to judgment as a

matter of law.”

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UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BELINDA DENISE JONES,

Plaintiff,

v.

COMMISSIONER OF

SOCIAL SECURITY

Defendant.

Case No. 09-13426

Honorable Julian Abele Cook, Jr.

ORDER

This case involves a complaint by the Plaintiff, Belinda Jones, who, in relying upon the

authority of 42 U.S.C. § 402(g), has asked this Court to review a final decision by the

Defendant, the Commissioner of the Social Security Administration (“Commissioner”). The

parties thereafter filed motions for summary judgment pursuant to Rule 56 of the Federal Rules

of Civil Procedure,1 both of which were forwarded by the Court to Magistrate Judge Mona K.

Majzoub for her evaluation. In a report on September 30, 2010, she recommended that this

Court (1) deny the Commissioner’s motion for summary judgment, (2) grant, in part, Jones’

motion for summary judgment, (3) remand the case to the administrative law judge pursuant to

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42 U.S.C. § 405(g) for further proceedings. As of this date, neither party has expressed any

objections to the magistrate judge’s report and recommendation. For the reasons that have been

set forth below, this Court adopts the report, including the recommendations of Magistrate

Judge Majzoub, in its entirety.

I.

Jones is a woman in her early forties who possesses an eleventh grade education and has

no sustained relevant work history. Although Jones has held a number of unskilled jobs over the

years, it appears that she has been unable to maintain a continuity of stable employment. On

January 1, 2005, Jones filed an application for Supplemental Security income, in which she

claims to have been disabled since December 31, 1999, because of her bouts with depression

and a low intelligence quotient (“IQ”). 

After her application was denied, she sought and obtained a de novo hearing before an

administrative law judge who, in a decision on May 22, 2007, determined that Jones was not

entitled to Social Security benefits. He concluded that, although Jones had suffered from severe

depression, mild mental retardation, a history of alcohol abuse (reportedly in remission), and an

occasional use of marijuana, she did not have an impairment or combination of impairments

that met or equaled the Listing of Impairments. He also determined that Jones (1) had the

residual functional capacity to perform unskilled light employment which outlined a simple

work routine, and (2) is able to perform a significant number of jobs that are available in the

national economy. Thus, the administrative law judge concluded that Jones was not suffering

from a disability which is compensable under the Social Security Act. This decision became the

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The Court notes that Jones’s pleadings will be construed liberally inasmuch as she appears in

this lawsuit as a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Her motion for

the entry of a summary judgment only alleges that she is an “ADA Act” and paraphrases the

definition of disability as set out in the Americans with Disabilities Act of 1990, 42 U.S.C. §

12102(1). She has also filed a letter with the Court which bore the date of August 28, 2009. In

her letter, Jones outlined the bases of her “mental medical disabilities” and various alleged errors

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final decision of the Commissioner on June 24, 2009, when the Appeals Council denied her

request for a review. This lawsuit followed.

II.

This Court has jurisdiction to review the Commissioner’s final decisions to determine if

(1) the findings are supported by substantial evidence and (2) the correct legal standards were

applied. 42 U.S.C. § 405(g); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted),

and is “more than a scintilla of evidence but less than a preponderance,” Brainard v. Secretary

of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The reviewing court must

affirm the Commissioner’s decision if it is supported by substantial evidence, even if the

evidence could also support a different conclusion. Her v. Comm’r of Soc. Sec., 203 F.3d 388,

389-90 (6th Cir. 1999). This review is limited in scope to an examination of the record only.

Thus, the court “does not review the evidence de novo, make credibility determinations nor

weigh the evidence.” Brainard, 889 F.2d at 681.

III.

In her appeal, Jones urges the Court to conclude that the decision by the administrative

law judge was erroneous because it improperly considered evidence of her past alcohol and

drug abuse and failed to give adequate consideration to evidence of her mental disabilities.2

 On

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in the administrative law judge’s decision. The Court will consider these allegations as it

attempts to assess the parties’ respective positions in this action. 

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the other hand, the Commissioner submits that the administrative law judge’s determination

was correct and is supported by substantial evidence in the record.

Jones points to an error by the administrative law judge when he gave an improper

consideration to her history of alcoholism and marijuana abuse even though she has “been

alcohol & drug free for several years.” However, this argument is without merit. According to

42 U.S.C. § 423(d)(2)(c), the administrative law judge is required to determine whether

“alcoholism or drug addiction would (but for this subparagraph) be a contributing factor

material to the Commissioner’s determination that the individual is disabled.”

Jones also differs with the administrative law judge’s determination that she did not

have an impairment or combination of impairments which met or equaled the “Listing of

Impairments.” After its review of the record, the Court agrees with Magistrate Majzoub’s

determinations that (1) he did not adequately explain his findings with respect to the

impairment of mental retardation issue, and (2) his conclusion, which addressed Jones’ severe

depression impairment, is not supported by substantial evidence.

The administrative law judge determined that Jones had the severe impairments of mild

mental retardation and severe depression. In assessing the severity of her depression, he

considered her limitations in the four functional areas – known as the “B criteria” - of (1)

activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4)

episodes of decompensation, as mandated by 20 C.F.R. § 416.920a(c)(3). In rendering his

decision, it was his determination that Jones had (1) no more than mild limitations in the

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activities of her daily living and social functioning, (2) no limitation in her ability to focus or

maintain concentration “when she is not drinking or smoking marijuana,” and (3) no episodes

of decompensation.

However, Jones, following a psychological examination, was found to have impaired

concentration, attention span, insight, and judgment. Moreover, a psychologist assessed her to

be “moderately limited in her ability to remember and carry out detailed instructions, maintain

prolonged concentration, interact appropriately [with] the general public, [and] respond

appropriately to criticism from supervisors.” (TR 126). Thus, the administrative law judge’s

finding that “[t]here is no indication that her ability to focus and maintain concentration is in

any way affected by her alleged mental impairments” was erroneous and is not supported by

substantial evidence in the record.

Moreover, these is no evidence that the administrative law judge considered the relevant

criteria for determining the severity of a mental retardation impairment, Listing 12.05, Pt. 404,

Subpart P, app. 1. Under Listing 12.05, a claimant must show the threshold requirement of

“significantly subaverage general intellectual functioning with deficits in adaptive functioning

initially manifested during the developmental period” in combination with any one of the four

possible sets of requirements listed in sub-parts A-D. The administrative law judge did not

engage in any analysis as to whether Jones’ impairment met the threshold requirement or if the

criteria of sub-parts A-D were satisfied.

Sub-part C requires 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.” For the purposes of sub-part C, an additional impairment imposes such

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a limitation if it is “severe” as defined in §§ 404.1520(c) and 416.920(c). Pt. 404, Subpart P,

app. 1 § 12.00A. Sub-part D requires a “valid verbal, performance, or full scale IQ of 60

through 70, resulting in at least two of the following: (1) marked restriction of activities of daily

living; or (2) marked difficulties in maintaining social functioning; or (3) marked difficulties in

maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation,

each of extended duration.” 

On the Wechsler Adult Intelligence Scale III, Jones had a full scale IQ score of 67

(extremely low range). Because the administrative law judge determined that Jones had the

additional severe impairment of depression, it would appear that - subject to meeting the

threshold requirement - Jones satisfied the criteria of sub-part C. Moreover, in light of the

psychological evidence discussed above, and subject to the same caveat, she would appear to

have satisfied sub-part D. However, there is no indication that the administrative law judge

considered Listing 12.05 in his analysis.

Thus, this case will be remanded to the administrative law judge in order for him to (1)

assess the severity of Jones’ severe impairment of mental retardation according to Listing

12.05; (2) explain and/or reevaluate Jones’ mental limitations due to her depression according

to the “B criteria;” and (3) if warranted, make a new residual functional capacity determination

and conduct steps 4 and 5 of the analysis anew, as more fully described in Magistrate Judge

Majzoub’s report and recommendation.

 IV. 

For the reasons that have been outlined above, the Court adopts the Report of Magistrate

Judge Majzoub. Therefore, (1) the Commissioner’s motion for summary judgment is denied, (2)

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Jones’ motion for summary judgment is granted in part, (3) the case is remanded to the

administrative law judge for further proceedings as described herein.

IT IS SO ORDERED.

Dated: February 8, 2011 s/Julian Abele Cook, Jr. 

Detroit, Michigan JULIAN ABELE COOK, JR.

United States District Court Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their

respective email addresses or First Class U.S. mail to the non-ECF participants on February 8, 2011.

s/ Kay Doaks 

Case Manager

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