Being Born A Man Does Not Render A Woman Disabled

Social Security Poster: old man

Social Security Poster: old man (Photo credit: Wikipedia)

French v. Commissioner of Social Security (USA)

April 23, 2013






March 12, 2013, Decided




Plaintiff Esper French appeals Defendant Commissioner of Social
Security’s (“Commissioner”) denial of her applications for disability
insurance benefits and supplemental security income

 For the
reasons set forth below, this Court finds that substantial evidence
supports the Commissioner’s decision.

The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment be DENIED , that Defendant’s Motion for Summary Judgment be GRANTED , and that the decision of the Commissioner of Social Security be AFFIRMED .


Plaintiff was 52 years old on the date she alleges she became
disabled.  Plaintiff graduated from high school
and completed some college work She previously worked as a
computer-aided drafter (CAD), a general laborer, and as a care giver.  She alleges that she cannot work due to her depression, 
gender dysphoria and deafness.

A. Procedural History

On November 5, 2008, Plaintiff applied for disability insurance
(“DIB”) and supplemental security income (“SSI”) asserting that
she became unable to work on January 2, 2006.  The
Commissioner initially denied Plaintiff’s disability application on May
16, 2009.

 Plaintiff then requested an ALJ administrative
hearing, and on September 27, 2010, she appeared with counsel before
Administrative Law Judge Timothy C. Scallen, who considered her case de novo  Vocational expert Elizabeth A. Pasikowski also appeared at the hearing.

In an October 20, 2010 decision, ALJ Scallen found that Plaintiff was not disabled.

 The ALJ’s decision became the final decision of the
Commissioner on April 26, 2012, when the Social Security
Administration’s Appeals Council denied Plaintiff’s request for review.

 Plaintiff filed this suit on June 27, 2012.

B. Medical Evidence

In November 1997, records from Foote Hospital show that Plaintiff was
hospitalized for psychiatric issues. An assessment at
that time indicated depression, suicidal  ideation,

In or around 2001, Plaintiff underwent a trans-gender
surgery to become female

Plaintiff is referred to herein as “she” when
referring to evidence post-dating the gender change.

An earlier hearing on April 26, 2010 was adjourned so
that Plaintiff could obtain representation.

 ALJ Scallen
also presided over the first, abbreviated hearing,

and trans-sexual disorder/gender identity disorder.

On February 19, 1998, Plaintiff was admitted to the hospital after a
self-castration attempt.
  Hospital notes indicate that
Plaintiff wanted a sex change operation, but was unable to find a

physician to perform it.  Plaintiff was taking Premarin – a hormone
replacement therapy most commonly used in post-menopausal women.  Plaintiff underwent a surgical procedure to debride his scrotum, evacuate the clot, and properly close the wound.

On May 2, 1998, Plaintiff was admitted to the hospital after
attempting to amputate his left testicle
.  Emergency room
notes from May 29, 1998 indicate that Plaintiff had undergone a sexual
reassignment surgery
and continued to undergo hormonal therapy
. Plaintiff wanted to speak to someone in
the psychiatric unit regarding his mood swings, volatile moods, and
fears of hurting himself. Emergency room notes state that
Plaintiff’s symptoms were partly due to the hormone therapy, and also to
the adjustment to his new female role.

 Plaintiff was
diagnosed with adjustment disorder and was instructed to continue
outpatient therapy and to return if symptoms worsened.

On August 27, 2000, Plaintiff was admitted to the hospital for
depression. Plaintiff reported feeling depressed and
frustrated with the way his coworkers were treating him because of
changing his identity to a woman.  Plaintiff denied suicidal
or homicidal ideation. Plaintiff was diagnosed with
adjustment disorder, depressed mood and gender identity disorder and was
advised to follow-up with counseling.) Plaintiff was also
given instructions to return if symptoms worsened or persisted.

These notes likely reflect Plaintiff’s self-castration
attempts, as formal trans-gender surgery occurred in or around 2001.


On September 30, 2000, a bone density test of Plaintiff’s lumbar
spine  and left hip was performed.  Testing indicated
osteopenia of the lumbar spine with a slightly increased risk of
pathological fracture.  Results also showed osteopenia of the
left hip with a slightly increased risk for pathological fracture.

February 2001, emergency room records indicate that Plaintiff
continued to pursue a sex change – from male to female. 
Plaintiff made comments indicating that she believed that she was a
“joke” and that “no one care[d] if [she was] dead or alive.”  The
emergency room physician indicated that Plaintiff also had suicidal

On April 8, 2009, Dr. Eugene Rontal examined
Plaintiff’s hearing
capacity.  Dr. Rontal reported that Plaintiff had worn hearing
aids, but had lost them.  The examination revealed normal tympanic
membranes and ear canals.  An audiogram demonstrated a moderate
sensorineural hearing loss in both ears.  With a hearing aid, Plaintiff
had 96% discrimination at 50dB. Dr. Rontal opined that Plaintiff had
bilateral sensorineural hearing loss of a hereditary origin.  Dr. Rontal
further believed that a hearing aid was the only  treatment available.

On April 24, 2009, Michele Bridges prepared a case analysis for the
State concluding that Plaintiff would be able to perform some type of
low skilled work that did not heavily rely on hearing.  Ms.
Bridges also concluded that working with the public, working in a fast
food setting that relies heavily on hearing, or work requiring phone use
would be difficult.

On April 27, 2009, Dr. Donald Kuiper completed a physical residual
functional capacity assessment. In it, Dr. Kuiper opined that Plaintiff
could occasionally lift and/or carry 50 pounds, frequently lift and/or
carry 25 pounds, stand and/or walk about 6 hours in an 8-hour workday,
sit for


a total of about 6 hours in an 8-hour workday, and was unlimited in
her ability to push and/or pull.  Dr. Kuiper noted no
postural, manipulative, visual, communicative or environmental
limitations.  After indicating that Plaintiff had no
communication limitations, Dr. Kupier concluded that Plaintiff “retains
sufficient hearing to be able to avoid normal workplace hazards and
understand occasional oral instructions.”  Dr. Kuiper noted an
audiogram and ENT exam dated April  8, 2009 which demonstrated a
non-listing level hearing and discrimination limitation. 
Further, Dr. Kupier reported that an audiogram performed in 2006
confirmed the same level of limitation.

On August 23, 2010, clinical therapist Bernadine McClung evaluated
Plaintiff and determined that Plaintiff had gender identity disorder
together with dysthymic disorder depressed mood. Ms. McClung
assessed Plaintiff’s Global Assessment Functional (GAF) Scale score at
30.  Moreover, Ms. McClung concluded that Plaintiff
exhibited “[s]erious impairment in judgment, preoccupation with becoming
and looking like a female, suicidal ideation, [and an] inability to
function in almost all areas.”  Ms. McClung further noted
that Plaintiff, “[l]ack[ed] motivation to get out of bed, [and was]
unable to obtain and keep a job.

On September 23, 2010,
Jennifer Turecki-Kaiser, MA, prepared an
initial vocational assessment (IVA) to determine Plaintiff’s ability to
participate in vocational rehabilitation as it related to Plaintiff’s
ability to return to gainful employment. Ms. Turecki
indicated that Plaintiff was teaching herself to read lips.  Despite
this, Ms. Turecki had to repeat and rephrase herself
numerous times throughout the interview.  Ms. Turecki noted that
Plaintiff had been diagnosed with moderate, bilateral hearing loss.  Ms.
Tuercki also noted that in 2006, Plaintiff’s hearing loss rose to the
level of disability.  Ms. Turecki pointed out Plaintiff’s


numerous unskilled labor positions and that Plaintiff was “let go”
from numerous positions due to her hearing loss and gender modification
issues.  Ms. Turecki also noted that Plaintiff was
“harassed, ridiculed and at times, felt threatened by others due to her
gender reassignment.”  Ms. Turecki concluded that
Plaintiff’s past work was at the unskilled or semi-skilled level with
the highest specific vocational preparation of 3. She noted
no transferrable skills from Plaintiff’s past work.  As
such, based on education and skill level, Ms. Turecki concluded that
Plaintiff was a candidate for unskilled work only. With
Plaintiff’s hearing loss, Ms. Turecki also concluded that only jobs that
did not require hearing should be considered.  After
reviewing Dr. Gray’s September 20, 2010 RFC assessment, Ms. McClung’s report, Ms. Bridges’ assessment, and
taking into account Plaintiff’s hearing loss and trans-gender issues,
Ms. Turecki concluded that “her impairments and symptoms [] would make
gainful competitive employment a non-realistic goal.”

C. Testimony at the Hearing Before the ALJ

1. Plaintiff’s Testimony

is trans-gendered female. She lives with two roommates.  Plaintiff
reported that she did most of the housework,
although one of her roommates was a hoarder and did not allow Plaintiff
to pick up any of her belongings. Plaintiff also reported that
she cooked all of the meals. Plaintiff reported that she watched
television; however, because of her hearing loss, she directed the sound
through a walkman as high as she can get it.  Plaintiff reported being
active socially with her roommates, going to movies, parks, coffee
houses, and open microphone

Dr. Gray’s RFC assessment, while noted in Ms. McClung’s report, was not included in the administrative record.


nights.  Plaintiff also reported reading science fiction and collecting Star Trek memorabilia.

reported that her hearing  aids were stolen from her
purse and that she had not replaced them.  Plaintiff
reported having no insurance to pay for replacement hearing aids. 
Without the assistance of her hearing aids, Plaintiff testified
that she communicated through reading lips and by using some sign
language. Plaintiff testified that she was only able to
understand about 40 to 50 percent of what is going on around her due to
her lack of hearing. Plaintiff reported that she was afraid to
drive because she cannot hear a car horn and felt she was a hazard to
people on the road.  Plaintiff reported that the last time she drove was
in 2008.  Plaintiff testified that the last time she worked was in 2008
as a
care giver for an autistic child. She testified that she only
worked for three or four weeks before quitting because she felt as
though she was more of a burden than a help.  Before that,
Plaintiff reported that she worked for a temporary service at a
factory.  However, despite typically making a good first
impression on temporary employers, Plaintiff testified that soon
employers would realize that she could not pay attention   and her
supervisors would get very upset with her and would ask her to leave the

Plaintiff also reported upsetting experiences associated with her
gender change from 1998 until 2006.  Plaintiff testified that
people would make comments like: “it might be better off if [she would]
just put the gun to [her] own head and save some heterosexual the need
to go to prison for the rest of his life.”  Plaintiff reported
that she got to a point in her gender dysphoria, that she castrated
herself. ) Due to the lack of understanding of the subject,
Plaintiff reported that this is not uncommon within the trans-gender
community. Plaintiff


reported that she became disabled on January 2, 2006.  Despite this, Plaintiff attempted

to continue working; however, she reported that her hearing remained compromised.

Plaintiff testified that the buzzing she experienced in her ears affects her concentration.

Plaintiff did not take any medications for her depression.  Plaintiff did, however, report

taking hormone therapy medication.

2. The Vocational Expert’s Testimony

The ALJ solicited testimony from a vocational  xpert (“VE”) about job availability for a

hypothetical individual of Plaintiff’s age, education, and work experience who was capable of

performing all exertional demands, but has the following
non-exertional limitations: first of all, avoiding concentrated exposure
to excessive noise I’m going to say simple, routine, repetitive
tasks for the reason that her concentration is interrupted by not only
the constant buzzing the way you’ve said it in your ear which interferes
with concentration, but also the psychological problems as well, no
interaction with the public, occasional interaction with coworkers,
which requires only communication at close distances, and limit to
occasional oral instructions.

The VE testified that the general laborer position would apply. However, if there

was a restriction of not being able to interact at all with co-workers, then the general laborer position

would not apply.  The ALJ then asked if the position could allow for using headphones to

drown out noise. The VE responded that it would not. 


Under the Social Security Act (the “Act”), Disability Insurance Benefits  (for qualifying wage

earners who become disabled prior to expiration of their insured status) and Supplemental Security

Income “are available only for those who have a ‘disability.’” See Colvin v. Barnhart , 475 F.3d 727,

730 (6th Cir. 2007). The Act defines “disability,” in relevant part, 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), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Social Security regulations provide that disability is to be determined through the

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or
combination of impairments that “significantly limits . . . physical or
mental ability to do basic work activities,” benefits are denied without
further analysis.

Step Three: If the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at
least twelve months, and the severe impairment meets or equals one of
the impairments listed in the regulations, the claimant is conclusively
presumed to be disabled regardless of age, education, or work

Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past
relevant work, if other work exists in the national economy that
plaintiff can perform, in view of his or her age, education, and work
experience, benefits are denied.

See 20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec. , 245 F.3d 528, 534 (6th

Cir. 2001). “The burden of proof is on the claimant throughout the first four steps . . . . If the

analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers

to the [Commissioner].” Preslar v. Sec’y of Health and Human Servs. , 14 F.3d 1107, 1110 (6th

Cir. 1994).

At step one, ALJ Scallen found that Plaintiff had not engaged in substantial gainful activity

since the alleged disability onset date of January 2, 2006. (Tr. 24.) At step  two, he found that


Plaintiff had the following severe impairment: deafness. Next, the ALJ concluded that this impairment did not meet or
medically equal a listed impairment.  Between steps three and
four, the ALJ determined that Plaintiff had the residual functional
capacity to perform “a full range of work at all exertional levels but
with the following nonexertional limitations: avoid concentrated
exposure to excessive noise; simple, routine, repetitive tasks; no
interaction with the public; occasional interaction with co-workers;
tasks which only require communication at close contact.”
At step four, the ALJ found that Plaintiff was able to perform her past
work as a general laborer.  The ALJ therefore concluded that
Plaintiff was not disabled as defined by the Social Security Act. 


This Court has jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review
under this statute is limited: the Court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to
apply the correct legal standard or has made findings of fact  unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec. , 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks omitted).

Substantial evidence is “more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 241 (6th Cir.
2007). If the Commissioner’s decision
is supported by substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even if
substantial evidence also supports the opposite conclusion.” Cutlip v. Sec’y of Health & Human Servs. , 25 F.3d 284, 286 (6th


Cir. 1994); see also Mullen v. Bowen
, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the
substantial evidence standard “presupposes . . . a zone of choice within
which the decisionmakers can go either way, without interference by the
courts” ).

When reviewing the Commissioner’s factual findings for substantial
evidence, the Court is limited to an examination of the record and must
consider that record as a whole. Bass v. McMahon , 499 F.3d 506, 512-13 (6th Cir. 2007); Wyatt v. Sec’y of Health & Human Servs.
, 974 F.2d 680, 683 (6th Cir. 1992). The Court “may look to any
evidence in the record, regardless of whether it has been cited by the
Appeals Council.” Heston v. Comm’r of Soc. Sec. , 245 F.3d 528,
535 (6th Cir. 2001). There is no requirement, however, that either the
ALJ or this Court discuss every piece of evidence in the administrative
record. Kornecky v. Comm’r of Soc. Sec. , 167 F. App’x 496, 508
(6th Cir. 2006). Further, this Court does “not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass , 499 F.3d at 509; Rogers , 486 F.3d at 247.


Plaintiff raises two claims of error – first, that the ALJ failed to
properly determine the effects of her hearing loss on her ability to
work; and second, that the ALJ improperly omitted depression and gender
identity disorder from the list of severe impairments at step two.

A.  The ALJ Properly Determined The Effects Of Plaintiff’s Hearing Loss On Her Ability To Work

Plaintiff argues that the ALJ failed to properly determine the
effects of her hearing loss on her ability  to work. This Court disagrees and concludes that the ALJ’s
determination that Plaintiff could return to work as a general laborer
is supported by substantial evidence.


The ALJ accommodated Plaintiff’s hearing problems by including
limitations in the RFC including avoidance of concentrated exposure to
excessive noise, communication at close range (presumably to accommodate
her need to read lips), no interaction with the public, and only
occasional interaction with co-workers. Moreover, ALJ Scallen
accommodated the “buzzing” in Plaintiff’s ears which reportedly affected
her concentration by limiting Plaintiff to jobs with “simple, routine,
repetitive tasks . . .” 

To support these limitations, the ALJ
noted the April 8, 2009
consultative examination by ENT specialist Dr. Eugene Rontal, who
observed no reports of tinnitus, aural discharge, or dizziness. The ALJ
also noted that the examination revealed normal tympanic
membranes and ear canals, and that an audiogram demonstrated moderate
sensorineural hearing loss in both ears.  ALJ Scallen
further noted that although a hearing aid brought the Plaintiff’s
hearing  discrimination to 96% at 50dB, Plaintiff reported losing
her hearing aids and has not replaced them.  The ALJ noted
that a 2006 audiogram confirmed the same level of limitation.  These
objective findings, the ALJ concluded, demonstrated that
Plaintiff had a non-listing level hearing and discrimination limitation.

Plaintiff claims that it was error for the ALJ to consider a lack of
treatment for her hearing loss; however, SSR 96-7p instructs that “the
individual’s statements may be less credible if the level or frequency
of treatment is inconsistent with the level of complaints.” See also Gwizdala v. Comm’r of Soc. Sec
., No. 98-1525, 1999 WL 777534, at *5 (6th Cir. Sept. 16, 1999) (ALJ
may consider claimant’s refusal to adhere to medical recommendations,
including the use of hearing aids).

Plaintiff also complains that the ALJ failed to consider evidence that she lacked the insurance


replace the allegedly stolen hearing aids. However, Plaintiff brings
forth no evidence establishing that she
could not have afforded replacement hearing aids through insurance or
other means. On this point, this Court has recently concluded that it is
proper for an ALJ to consider a claimant’s failure to seek
emergency room treatment or low cost health care options. See Hashemi v. Comm’r of Soc. Sec. , No. 11-13629, 2012 WL 3759033, at  (E.D. Mich. Aug. 6 2012).

The ALJ also noted that Plaintiff sought no other treatment or
monitoring for her hearing loss, even on an emergency basis, which
suggests that her hearing loss was not as severe as alleged. Further,
the ALJ noted that Plaintiff was able to effectively communicate by lip
reading – and did so during the administrative hearing in this case –
without the need for any kind of interpretative assistance.

Relatedly, Plaintiff claims that substantial evidence does not
support the ALJ’s conclusion that she can return to work as a general
laborer. Plaintiff argues that the RFC limitation that she “avoid
concentrated exposure to excessive noise” coupled with her testimony at
the hearing regarding the noise in the factory in which she worked,
preclude a return to her prior work as a general laborer.

But Plaintiff’s argument has been rejected by the Sixth Circuit. In Studaway v. Sec’y of Health & Human Servs.
, 815 F.2d 1074, 1076 (6th Cir. 1987),  the Sixth Circuit held
that the Act requires that a plaintiff show his impairments are “so
severe that he is ‘unable to do his previous work. . . .’” The Court
specified: “[h]e must prove an inability to return to his former type of work and not just to his former job.” Id. (emphasis in original) (internal quotation marks omitted); accord Clendening v. Comm’r of Soc. Sec. , 482 F. App’x 93, *7 (6th Cir. 2012) (“The relevant inquiry is


whether [the claimant] could still perform that type of work and not necessarily the specific job that he had in the past.”); see also Villa v. Heckler , 797 F.2d 794, 798 (9th Cir. 1986); Gray v. Heckler , 760 F.2d 369, 372 (1st Cir. 1985); De Loathe v. Heckler , 715 F.2d 148, 151 (4th Cir. 1983); Jock v. Harris
, 651 F.2d 133, 135 (2d Cir. 1981). Because the VE testified that
general laborer work existed at a level consistent with Plaintiff’s RFC,
this Court is compelled to affirm. See Studaway , 815 F.2d at 1076.

B.  Severe Impairments

At step two the ALJ determined that Plaintiff had one severe
impairment, deafness. (Tr. 24.) Plaintiff contends that the ALJ
improperly omitted depression and gender identity disorder from the list
of severe impairments. However,
Plaintiff fails to recognize that once step two is “cleared” by finding
that some severe impairment exists – in this case, deafness

– the ALJ must then consider a plaintiff’s “severe and nonsevere
impairments in the remaining steps of the sequential analysis.” Anthony v. Astrue
, 266 Fed. App’x 451, 457 (6th Cir. 2008) “The fact that some of [a
plaintiff’s] impairments were not deemed to be severe at step two is
therefore legally irrelevant.” Id. Consequently, any alleged
omission of Plaintiff’s depression and/or gender identity disorder from
the list of severe impairments does not necessarily undermine the ALJ’s
decision. See Anthony , 266 Fed. App’x at 457; Talos v. Comm’r of Soc. Sec ., No. 11-13207, 2012 WL 1392156, at *8 (E.D. Mich. Mar. 26, 2012); Maziarz v. Sec. of Health & Human Servs. , 837 F.2d 240, 244 (6th Cir. 1987).


The Court has reviewed the ALJ’s decision and concludes that he
properly considered Plaintiff’s depression and gender identity disorder
in the remaining steps of the sequential analysis.

Specifically, the ALJ discussed Plaintiff’s mental health treatment
during 1997 for depression and suicidal ideation.  Next,
the ALJ discussed, in detail, Plaintiff’s emergency room visits during
February and May 1998 after he attempted to remove his testicles. ALJ Scallen noted Plaintiff’s history of gender dysphoria,
identifying as a transgender while seeking a sex change operation.  ALJ Scallen noted a break in treatment until August 2000, at which
time Plaintiff presented to the emergency room exhibiting symptoms of
depression regarding his sexual identity, but denied suicidal ideation.  ALJ Scallen noted Plaintiff’s return to the emergency room in February 2001 with suicidal ideation, but was discharged. ALJ Scallen also noted that Plaintiff worked for years with the noted conditions. And, importantly, ALJ Scallen identified no records of treatment for
Plaintiff’s mental health conditions since the alleged onset date of

This Court concludes that the ALJ properly considered Plaintiff’s
mental health impairments and a failure to find that Plaintiff’s
depression or gender identity disorder constituted a severe impairment
at step two does not constitute reversible error.


For the reasons set forth above, this Court finds substantial
evidence supports the Commissioner’s decision. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Dkt. 12) be DENIED , that Defendant’s Motion for Summary Judgment.  The ALJ rated the severity of Plaintiff’s mental
impairments and the RFC reflects the degree of limitation the ALJ found
in the “paragraph B” mental function analysis.


14) be GRANTED , and that, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security be AFFIRMED .


s/Laurie J. Michelson



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