JNN et al v. Social Security
ORDER Overruling Plaintiff's 25 Objections, Adopting the 24 Report and Recommendation, Denying Plaintiff's 20 Motion for Summary Judgment, Granting Defendant's 23 Motion for Summary Judgment, and Affirming the Decision of the Commissioner. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JNN, a minor child by Cora E. Williams,
Parent and Next Friend,
Case. No. 16-cv-13608
Honorable Thomas L. Ludington
Mag. Judge R. Steven Whalen
COMMISSIONER OF SOCIAL SECURITY,
ORDER OVERRULING PLAINTIFF’S OBJECTIONS, ADOPTING THE REPORT
AND RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND AFFIRMING THE DECISION OF THE COMMISSIONER
On August 27, 2013, Plaintiff JNN, a minor child, by Cora E. Williams, parent and next
friend (“Plaintiff” or “Claimant”), applied for supplemental security income with an alleged
disability onset date of October 12, 2002. Claimant’s application was initially denied on
February 11, 2014. Claimant requested a hearing before an Administrative Law Judge (ALJ).
The hearing was held on May 20, 2015, after which the ALJ issued a decision finding that JNN
was not disabled. The Appeals Council denied review. Plaintiff sought review in this Court on
October 10, 2016. The case was referred to Magistrate Judge R. Steven Whalen. The parties filed
cross motions for summary judgment. Judge Whalen issued a report recommending that the
Court grant Defendant’s motion and deny Plaintiff’s motion. Plaintiff filed timely objections to
Judge Whalen’s report and recommendation.
Neither party has specifically objected to Judge Whalen’s summary of the facts and
history of the administrative proceedings in the case. That summary is therefore adopted in full.
Notably, the ALJ found that JNN had not engaged in substantial gainful activity since the alleged
onset of the disability. ECF No. 12-2 at 26. The ALJ found that JNN was a school aged child on
the date the application was filed and is currently an adolescent under 20 CFR 416.926a(g)(2).
Id. The ALJ found that JNN suffered from the following severe impairments: asthma, attention
deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), and post-traumatic
stress disorder (PTSD). Id. The ALJ determined that JNN does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. Id. (citing 20 CFR 416.924–419.926).
Finally, the ALJ found that JNN does not have an impairment or combination of impairments
that functionally equals the severity of a listing under 20 CFR 416.924(d) and 414.926(a), and
that JNN was therefore not disabled. Id. at 26–40.
When reviewing a case under 42 U.S.C. § 405(g), the Court must affirm the
Commissioner’s conclusions “absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (citations
omitted). Substantial evidence is “such evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (citation omitted).
42 U.S.C. § 1382c (a)(3)(C)(I) provides that “[a]n individual under the age of 18 shall be
considered disabled” if he or she “has a medically determinable physical or mental impairment
which results in marked and severe functional limitations.” In evaluating whether a child is
disabled, the Commissioner is to consider, in sequence, whether the child claimant 1) is “doing
substantial gainful activity,” 2) has a severe impairment, and 3) has “an impairment(s) that
meets, medically equals, or functionally equals the listings.” 20 C.F.R. § 416.924(a). In
determining whether the child claimant is disabled at the third step, the Commissioner
determines functional ability in six domains: (1) acquiring and using information; (2) attending
and completing tasks; (3) interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 CFR §
926a(b)(1). In order to functionally equal the listings, the claimant must establish “marked”
limitations in two of these domains, or “extreme” limitations in one domain. 20 CFR § 416.926a.
A “marked” limitation is defined as an impairment(s) that “interferes seriously” with the ability
“to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2). An
“extreme” limitation “interferes very seriously” with the ability “to independently initiate,
sustain, or complete activities” (emphasis added). 20 C.F.R. § 416.926a(e)(3).
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a Magistrate Judge’s report and recommendation. Fed. R. Civ. P. 72(b)(2). Objections must be
stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If objections
are made, “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the Magistrate Judge; the Court may not act
solely on the basis of a Magistrate Judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Only those objections that are specific are entitled to a de novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those
portions of the magistrate’s report that the district court must specially consider.” Id. (internal
quotation marks and citation omitted). A general objection, or one that merely restates the
arguments previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004). An
“objection” that does nothing more than disagree with a magistrate judge’s determination,
“without explaining the source of the error,” is not considered a valid objection. Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively duplicated as both the magistrate and the
district court perform identical tasks. This duplication of time and effort wastes judicial resources
rather than saving them, and runs contrary to the purposes of the Magistrate’s Act.” Id.
Specifically at issue in the cross motions for summary judgment is the ALJ’s finding that
JNN did not have marked limitations in the areas of 1) attending and completing tasks and 2)
interacting and relating with others. In her motion for summary judgment, Plaintiff contends the
ALJ’s finding with respect to the domain of “attending and completing tasks” was not supported
by substantial evidence for three reasons. First, Plaintiff argues that the ALJ improperly
discounted the opinion of Plaintiff’s 6th grade teacher and JNN’s mother concerning his
significant problems with attention and focus, as well as his Conner’s Rating which revealed
scores in the “very elevated” range for inattentiveness, hyperactivity, impulsivity and
defiance/aggression. Pl’s. Mot. at 18, ECF No. 20. Plaintiff argues that, notwithstanding that
evidence, the ALJ gave undue weight to “the opinion of the consultative examiner, Dr. Hayter,
who saw JNN on a single occasion, and the State agency medical consultants, who never saw
him at all.” Id. at 19. Plaintiff also contends that the ALJ misinterpreted the opinion of Dr.
Hayter. Id. Second, Plaintiff argues the ALJ improperly focused on claimant’s “decision not to
comply with treatment.” Id. at 20. Plaintiff contends the decision was made by JNN’s mother,
and not JNN. Id. Finally, Plaintiff argues that the ALJ “did not address the fourth grade
evaluations provided by JNN’s teachers and the student support coordinator” who noted very
serious problems with JNN’s ability to sustain attention to tasks or activities. Id. at 20–21.
With respect to the domain of “interacting and relating with others” Plaintiff argues in her
motion for summary judgment that the ALJ’s finding was not supported by substantial evidence
because: 1) he improperly discounted the opinion of JNN’s sixth grade teacher and his mother in
favor of the consultative examiner and medical consultants, 2) failed to consider the opinions of
other school staffers concerning JNN’s behavior in the fourth grade, and 3) placed improper
focus on JNNs interaction with Dr. Hayter during their brief appointment to the exclusion of
evidence concerning JNN’s tendency to fight with his friends and his 10 suspensions over a five
month period. Id. at 22–23.
In his report, Judge Whalen found that the ALJ’s findings were supported by substantial
evidence, and recommended that the Court affirm the ALJ’s decision, deny Plaintiff’s motion for
summary judgment, and grant Defendant’s motion for summary judgment. Rep. & Rec. at 16.
Specifically, with respect to “attending and completing tasks,” Judge Whalen noted that the
opinion of JNN’s teachers, while relevant, was not entitled to controlling weight, and the ALJ
properly accorded more weight to the opinion of Dr. Hayter. Id. at 12–13. Judge Whalen also
found that it was appropriate for the ALJ to consider the fact that JNN did not take his
medication, regardless of whether JNN’s mother was to blame for him not doing so. Id. at 13–14
(citing Williams v. Colvin, 2015 WL 5735126, at *5 (E.D.Mo. September 29, 2015) (Caregivers’
non-compliance in administering prescription medicine permissibly used to undermine the
disability claim notwithstanding that childhood Claimant “was not responsible” for his
caregivers’ failures)). With respect to the domain of “interacting and relating with others,” Judge
Whalen again found that the ALJ properly accorded more weight to Dr. Hayter’s opinion than
the lay opinion of JNN’s 6th grade teacher. Id. at 15.
Plaintiff raises two objections to Judge Whalen’s report and recommendation, which will
be addressed in turn.
First, Plaintiff contends “The Magistrate Judge improperly analyzed the ALJ’s finding
that JNN’s noncompliance with prescribed medication affected his credibility.” Obj. at 2, ECF
No. 25. Plaintiff contends that Judge Whalen misstated the ALJ’s reasoning where Judge Whalen
stated the ALJ “did not err in noting that the Plaintiff in this case (Claimant’s mother)
undermined her claim that her son was disabled by ignoring his pediatrician’s recommendations
and the prescribed medication regime.” Id. at 3. According to Plaintiff, this was not the ALJ’s
finding. Rather, Plaintiff contends the ALJ “was suggesting instead that JNN himself was not
credible because of the noncompliance.” Id. at 3 (emphasis in original). Plaintiff contends that
Judge Whalen compounded this error by misapplying case law. Plaintiff contends that the court
in Williams “expressly rejected the idea that a child could be responsible for noncompliance with
his medication” and that the Wildman case did not involve a childhood claimant at all. Id. at 4.
Firstly, the ALJ’s decision was not predicated on a finding of JNN’s credibility, or lack
thereof. Nothing in the ALJ’s opinion suggests that he found JNN’s failure to take medication
had any bearing on his credibility. This is apparent from the provisions of the ALJ’s opinion that
Plaintiff quotes, where the ALJ indicated that non-compliance with the medication regimen
indicated “his symptoms may not be as severe as his teacher described” or that it undermined
“much of the basis for his need for treatment.” Id. at 3 (emphasis added). The first quote
indicates the ALJ found that JNN’s failure to take the prescribed medication undermined the
weight of the teacher’s opinion concerning his symptoms. The second quote indicates that the
ALJ found the failure to take medication undermined the validity of the disability claim itself.
Furthermore, the gravamen of Judge Whalen’s finding was that the ALJ was correct in
concluding that the failure to take medication undermined the disability claim itself, regardless of
whether it was characterized as JNN’s claim or his mother’s claim, and regardless of who was at
fault for the failure to take medication. Judge Whalen’s explanatory parenthetical after the
citation to Williams makes this clear: “caregiver’s non-compliance in administering prescription
medicine permissibly used to undermine the disability claim notwithstanding that childhood
Claimant ‘was not responsible’ for his caregiver’s failures.” Rep. & Rec. at 14.
Secondly, Judge Whalen’s citation to Williams was appropriate. Plaintiff is correct that
the court in Williams noted that the minor child “was not responsible for his non-compliance”
with the medication regimen. Williams, 2015 WL 5735126, at *5. This was not overlooked by
Judge Whalen. In fact, Judge Whalen quoted precisely that portion of the Williams opinion. Rep.
& Rec. at 14. Furthermore, the Williams court’s discussion of who was at fault for the failure to
take medication did not affect its finding that “[a] claimant’s non-compliance with the prescribed
medical treatment is a factor which an ALJ may properly consider.”1 Id. This is precisely the
reason why Judge Whalen cited that case. Indeed, it is difficult to imagine a case more on point
considering the rather narrow question at issue, namely whether non-compliance with prescribed
medical treatment should be considered by the ALJ when the disability claimant is a minor child.
Plaintiff would answer this question in the negative. Plaintiff does not, however, dispute the rule
that non-compliance with medical treatment should be considered by the ALJ in general.
Plaintiff’s unstated argument is that there is an exception for cases where the disability claimant
is a minor child. Plaintiff notes that the minor child is not at fault for their care-giver’s failure to
administer prescribed medication, and an ALJ’s consideration of that failure improperly punishes
the minor claimant. However, Plaintiff provides no authority for this exception. Plaintiff is
correct that Williams is a district court opinion from another circuit, but it is nonetheless
persuasive authority, and Plaintiff has provided no reason to question it. Accordingly, Plaintiff’s
objection will be overruled.
Second, Plaintiff contends “the Magistrate Judge further erred in finding the ALJ’s
analysis as to JNN’s ability to interact and relate with others was supported by substantial
evidence.” Id. at 5. Plaintiff quotes the same two paragraphs from her motion for summary
judgment in which the ALJ discussed observations of JNN’s 6th grade teacher and JNN’s mother
concerning his ability to interact with others. Obj. at 5. Plaintiff again asserts that “this evidence
certainly suggests a marked limitation, particularly when JNN’s mother’s actual testimony
regarding his relationship with his friends - that he often fought and constantly argued with them
Plaintiff’s explanation for distinguishing Wildman is irrelevant. Judge Whalen did not cite Wildman to support his
finding, he merely noted that Wildman is the case that the Williams court cited to support the proposition that “A
claimant’s non-compliance with prescribed medical treatment is a factor which an ALJ may properly consider.” The
Williams court then applied that principle to a situation involving a minor child.
(Tr. 60) – is considered. The Magistrate Judge acknowledged as much. However, the ALJ
disregarded the opinions of JNN’s sixth grade teacher and his mother in favor of the consultative
examiner and medical consultant.” Id. at 6. This language is a carbon copy of Plaintiff’s motion
for summary judgment. As Plaintiff concedes, Judge Whalen and the ALJ discussed the relevant
evidence, but simply reached a different conclusion than Plaintiff did.
Plaintiff then reasserts the argument that it was inappropriate for the ALJ to give Dr.
Hayter and Dr. Khademian’s opinions more weight than the opinions of JNN’s teacher and
mother, considering the doctors had limited exposure to JNN whereas his teachers and mother
had exposure to him on a regular basis. Id. at 6. This argument is identical to the one made in
Plaintiff’s motion for summary judgment. The only objection specifically directed at Judge
Whalen’s report is that Judge Whalen accepted the ALJ’s reasoning, and Plaintiff does not think
the ALJ’s reasoning should be accepted. Obj. at 6.
Finally, Plaintiff argues that, although the ALJ correctly observed that JNN plays football
and other sports, he also gets into fights and frequently gets suspended. Id. at 7. Much of this
discussion is also a carbon copy of the motion for summary judgment. The only objection
directed at Judge Whalen’s report is the he “accepted as reasonable the ALJ’s finding that JNN’s
ability to regularly participate in team sports undermined a finding of marked limitations despite
the difficulties noted above.” Id. at 7. Thus, as Plaintiff impliedly concedes, Judge Whalen
properly understood Plaintiff’s argument but rejected it. Plaintiff identifies no flaw in Judge
Whalen’s reasoning, but simply reaches a different conclusion than he did.
In sum, Plaintiff’s second objection does nothing more than reassert the same arguments
made in her motion for summary judgment, largely verbatim, and disagrees with Judge Whalen’s
rejection of those arguments without identifying any specific errors in Judge Whalen’s
reasoning. Accordingly, de novo review is not warranted. See VanDiver v. Martin, 304
F.Supp.2d 934, 937 (E.D. Mich. 2004) (noting that a general objection, or one that merely
restates the arguments previously presented, does not sufficiently identify alleged errors on the
part of the magistrate judge); Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509
(6th Cir. 1991) (noting that an “objection” that does nothing more than disagree with a
magistrate judge’s determination, “without explaining the source of the error,” is not considered
a valid objection). Plaintiff does not contest Judge Whalen’s finding that the “ALJ provided a
lengthy and accurate discussion of the sixth grade teacher’s findings and Plaintiff’s testimony.”
As Judge Whalen noted, the ALJ simply “accorded significant weight to Dr. Hayter’s
consultative findings and Dr. Khademian’s non-examining conclusions over the teacher
assessment forms and Plaintiff’s testimony . . . and noted that unlike the academic sources, Drs.
Hayter and Khademian had the benefit of the evidence in the medical file as well as the
educational records.” Rep. & Rec. at 15. As Plaintiff notes, “This court is generally required to
defer to opinions of the ALJ as to credibility, if those determinations are reasonable and
supported by substantial evidence in the record. Obj. at 7 (citing Kirk v. Sec’y of Health &
Human Servs., 667 F2d 524, 538 (6th Cir.1981)). Accordingly, Plaintiff’s second objection will
Accordingly, it is ORDERED that Plaintiff’s objections, ECF No. 25, are
It is further ORDERED that Judge Whalen’s report and recommendation, ECF No. 24, is
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It is further ORDERED that Plaintiff’s motion for summary judgment, ECF No. 20, is
It is further ORDERED that Defendant’s motion for summary judgment, ECF No. 23, is
It is further ORDERED that the Commissioner of Social Security’s decision is
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: February 14, 2018
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 14, 2018.
KELLY WINSLOW, Case Manager
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