Cartwright v. Social Security, Commissioner of

Filing 20

ORDER Overruling 18 Objections, Adopting 17 Report and Recommendation, Denying 9 Motion for Summary Judgment filed by Lorna Cartwright, and Granting 15 Motion for Summary Judgment filed by Social Security, Commissioner. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORNA CARTWRIGHT, on behalf of A.C.,
Case No. 10-cv-13954
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/

ORDER OVERRULING OBJECTIONS (docket no. 18), ADOPTING REPORT AND
RECOMMENDATION (docket no. 17), GRANTING THE COMMISSIONER'S
MOTION FOR SUMMARY JUDGMENT (docket no. 15), AND DENYING
CARTWRIGHT'S MOTION FOR SUMMARY JUDGMENT (docket no. 9)
The Social Security Administration denied disability benefits to A.C.,1 the son of Lorna
Cartwright, in a written decision issued by an administrative law judge ("ALJ") on February
10, 2010. Cartwright challenged this ruling by filing a lawsuit against the Commissioner of
Social Security ("Commissioner") in this Court, pursuant to 42 U.S.C. § 405(g). The Court
referred the matter to a magistrate judge for all pretrial proceedings, and the parties filed
cross-motions for summary judgment. In a Report and Recommendation ("Report") issued
on September 20, 2011, the magistrate judge recommended denying Cartwright's motion
and granting the motion filed by the Commissioner of Social Security ("Commissioner").
Cartwright lodged two timely objections to the Report. She argues that the magistrate
judge incorrectly affirmed the ALJ's findings that A.C. was not "markedly limited" in his
ability to (1) attend and complete tasks; and (2) interact and relate with others. The Court
finds that the ALJ's decision was supported by substantial, record evidence, and that the

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This Order uses the initials of Cartwright's child in compliance with Civil Rule 5.2(a)(3).

magistrate judge did not err in recommending its affirmance. Accordingly, the Court will
overrule the objections, adopt the Report, deny Cartwright's motion, grant the
Commissioner's motion, and dismiss the case.
STANDARD OF REVIEW
Recommendations on dispositive motions by a magistrate judge are reviewed
pursuant to Civil Rule 72(b). The district judge who referred the motion is only required to
perform a de novo review of the magistrate judge’s findings if the parties "serve and file
specific written objections to the proposed findings and recommendations." Fed. R. Civ.
P. 72(b)(2). In this case, Cartwright objected to two specific findings made by the
magistrate judge. Those findings will be reviewed de novo by the Court.
In an application for disability benefits, the burden lies with the applicant to establish
an entitlement to benefits. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683
(6th Cir. 1992). The Court only reviews the ALJ's determination to see if it is supported by
"substantial evidence" and based on the proper legal standards. Brainard v. Sec'y of
Health & Human Servs., 889 F.2d 679 (6th Cir. 1989). This review gives great deference
to the ALJ's conclusions. It is not the Court's role to displace the ALJ's judgment of the
facts with its own view of the evidence unless the ALJ's view is completely unfounded. See
id. ("We do not review the evidence de novo, make credibility determinations nor weigh the
evidence.").
BACKGROUND
I.

Relevant Medical History
A.C. was born in a drug treatment center in Sault St. Marie, Michigan in June of 1997.

A.R. 299. His biological mother had a history of drug abuse, including alcohol abuse. A.R.
299. Cartwright adopted A.C. when he was fifteen months old. A.R. 299. In 2003, Dr.

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Mark Sloane formally diagnosed A.C. with fetal alcohol spectrum disorder ("FASD") and
attention deficit / hyperactivity disorder ("ADHD"). A.R. 300. At that time, Dr. Sloane
placed A.C. on medication, and both Dr. Sloane and Cartwright noted significant
improvement in his behavior as a result of the treatment. A.R. 300–01. Dr. Sloane
continued to report that A.C.'s symptoms were well-controlled with medication until 2007.
A.R. 243, 245, 417, 460–61.
In September 2007, A.C. was seen by a limited license psychologist, Anne Kantor, for
a consultative evaluation.

At that time, Cartwright reported that A.C.'s behavioral

symptoms were "constant talking, not following directions, having to have things repeated
several times, and frequent outbursts." A.R. 476. Similar issues were reported by his
teachers at school. A.R. 476, 478. But Cartwright also noted that A.C. was "very bright"
and earned "straight As" in the fourth grade, and was "maturing a little bit" as he got older.
A.R. 476, 478. Cartwright also described A.C. as a "compassionate child" who related well
to both his adoptive siblings and to his friends at school. A.R. 479. This generally positive
state of affairs held sway through the early months of 2008, as the notes from A.C.'s new
treating physician, Dr. Marwan Tabbara, indicate. A.R. 537–39.
A.C.'s behavioral problems worsened as 2008 progressed. Cartwright reported to Dr.
Tabbara that A.C. was "showing increased behavioral problem[s]" around this time, and
changes in his medication regimen did not initially lead to better results. A.R. 534–35,
619–21. A.C. also received "F's" in all of his fifth-grade classes, even though he was
performing adequately on standardized tests. A.R. 72. The symptoms improved at the
beginning of 2009 as Dr. Tabbara continued to adjust A.C.'s treatment regimen, and reports
from a behavioral therapy program A.C. participated in at this time reported significantly
improved behavior. A.R. 573, 577–78, 592, 618.

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Unfortunately, A.C. relapsed towards the end of 2009. A psychiatric hospital admitted
him in December of 2009 after he showed increased aggression and violent conduct at
both home and school, received two suspensions from school for aggressive behavior, and
continued his poor performance in school. A.R. 642. The treatment notes from his
hospitalization did observe that his comportment improved after his treating physicians
made adjustments to his drug regimen. A.R. 640. At the disability benefits hearing,
Cartwright testified that A.C. was "[s]ometimes . . . just all over the place," that she had
difficulty "getting him to focus and sit down and be still," that A.C. had trouble staying
organized and paying attention in class, that she had to ask him to perform a task several
times before he would do it, and that he required persistent observation in order to
complete certain tasks. A.R. 64, 66, 73–74.
II.

The ALJ's Decision
The ALJ evaluated A.C.'s petition under the SSA's three-step framework for

adjudicating benefits claims by children. See 20 C.F.R. § 416.924(a). He found that (1)
A.C. was not engaged in substantial gainful activity, and (2) that his ADHD and FASD were
severe, medically determinable ailments. A.R. 21. The ALJ ultimately denied benefits
because A.C. could not get past the third step in the SSA's framework, which requires an
impairment or combination of impairments that meets, medically equals, or functionally
equals a listed impairment. A.R. 21. The ALJ rejected the "meets" and "medically equals"
arguments with little discussion, and Cartwright did not challenge these findings. A.R. 21.
The disputed portion of the ALJ's opinion is his determination that A.C.'s condition is
not "functionally equivalent" to a listed impairment. To obtain disability benefits at this
stage, a claimant must show either an "extreme" limitation in one of six "broad areas of

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functioning," called "domains," or a "marked" limitation in two of the domains.2 20 C.F.R.
§ 416.926a(a); but see Kelly v. Comm'r of Soc. Sec., 314 F. App'x 827, 832 (6th Cir. 2009)
("[J]ust because a person has the limitations described does not mean the person has an
extreme or even a marked impairment."). The six domains the ALJ must consider are:
(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 [one's self]; and
(6) Health and physical well-being.
20 C.F.R. 416.926a(b)(1)(i)–(vi). The ALJ found that A.C. was neither extremely nor
markedly limited in any of these domains, and therefore, did not qualify for benefits. A.R.
23–29. Cartwright's objections to the magistrate judge's approval of the ALJ's findings
regarding the "attending and completing tasks" and "interacting and relating with others"
domains are now ready for review by the Court.
DISCUSSION
I.

"Attending and Completing Tasks"
The "attending and completing tasks" domain is a measure of the child's ability to

focus on a task; to begin, carry through, and complete tasks at a certain speed; and to
remain focused on an activity or task at a consistent level of performance. 20 C.F.R. §
416.926a(h). The regulations give a broad, descriptive portrait of how this requirement is

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A "marked" limitation is one in which the impairment "interferes seriously with [one's]
ability to independently initiate sustain, or complete activities."
20 C.F.R. §
416.926a(e)(2)(i). An "extreme" limitation is one that "interferes very seriously with [one's]
ability to independently initiate, sustain, or complete activities." Id. § 416.926a(e)(3)(i)
(emphasis added).
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reflected in the behavior of school-aged children and adolescents.

See id. §§

416.926a(h)(2)(iii)–(iv). Children who are limited in this domain are easily startled or
distracted, slow to focus on an activity, unable to complete activities they start, quickly
frustrated by tasks even when they are capable of completing them, and dependent upon
extra supervision to remain engaged in the activity. Id. § 416.926a(h)(3).
The ALJ primarily relied upon the evidence contained in a medical interrogatory
completed by Dr. Larry Kravitz, a licensed psychologist. After reviewing much of the
evidence summarized above by the Court, Dr. Kravitz concluded that A.C.'s concentration
was "relatively intact" in a consultative psychological examination conducted in August
2007, and that on the whole, A.C. had "less than marked impairments . . . in attending and
completing tasks." A.R. 551. The ALJ also looked to the records from A.C.'s time spent
in the behavioral treatment program in late 2008 and early 2009, where the staff members
supervising him claimed he "followed direct[ions] and required prompting from staff
members only occasionally." A.R. 25, 572–99. The magistrate judge added to this
evidence that despite A.C.'s recent academic troubles, Cartwright admitted he could stay
on task for extended periods of time when playing video games or reading at home, and
that he performed certain chores well on a regular basis. A.R. 148, 150, 152. He also
pointed to A.C.'s unremarkable scores on standardized tests measuring behavior and
intelligence.3 A.R. 263, 265. Finally, he noted that no treating physician of A.C.'s found he
was "markedly limited" in this domain, and at least one other doctor consulted to examine

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Cartwright argues that an IQ score, which measures cognitive ability, does not
correlate with an ability to attend and complete tasks. While the Court agrees that the
magistrate judge's invocation of these figures did little to bolster the conclusion drawn, it
finds the error, if any, harmless in light of the overall evidence regarding functionality in this
domain.
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A.C.'s medical file in addition to Dr. Kravitz, Dr. William Schirado, made an explicit finding
to the contrary. A.R. 488.
Cartwright argues that the ALJ and the magistrate judge did not explicitly consider the
treatment history from A.C.'s treating physicians and improperly weighed the consultative
physicians' opinions. Consultative physician opinions are generally given less weight than
opinions provided by a treating physician. See 20 C.F.R. 416.927(d)(2). But neither
Cartwright's evidence supporting the motion for summary judgment, nor her objections,
point to anything in that treatment history that calls into question the consultative
physicians' opinions. On the contrary, as the Commissioner argued in its summary
judgment motion, the treating physician notes are consistent with the conclusion that A.C.
had an "adequate" attention span.

A.R. 542 (December, 2007 examination by Dr.

Tabbara); see also Comm'r.'s Br. 14–15, ECF No. 15 (summarizing other notes from Dr.
Tabbara's treatment records).
Cartwright also emphasizes A.C.'s poor grades in fifth and sixth grade as a sign of his
"marked" limitation in this domain. Nonetheless, it was permissible for the ALJ to infer that
the poor grades were not solely attributable to a "marked" limitation in this domain. The
evidence supporting such a finding included the sudden shift of A.C. from a "straight A"
student in fourth grade to a poor student and A.C.'s admitted ability to focus and complete
certain activities, such as doing chores, reading, and playing video games. Because the
ALJ's weighing of this evidence was not impermissible, the objection is overruled.
II.

"Interacting and Relating to Others"
The "interacting and relating to others" domain measures the applicant's ability to

"initiate and sustain emotional connections with others, develop and use the language of
[the] community, cooperate with others, comply with rules, respond to criticism, and respect

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and take care of the possessions of others." 20 C.F.R. § 416.926a(i). Signs of maturity
in this domain for school-aged or adolescent children include an ability to develop
friendships, work in group settings, seek the approval of adults other than their parents,
understand the views of others, act appropriately depending on context and audience, and
communicate effectively. See id. §§ 416.926a(i)(2)(iv)–(v). Limitations in this domain are
manifested by difficulty forming friendships, withdrawal from acquaintances, a fear of
meeting new people, problems with participating in activities with rules, and communication
issues. see id. §§ 416.926a(i)(3)(ii)–(vi).
The ALJ found that while A.C. was the victim of bullying and had "somewhat
unpredictable" interactions with his peers in the past, he was less than markedly limited in
this domain. The primary evidence the ALJ relied upon were A.C.'s scores on the Global
Assessment of Functioning ("GAF") diagnostic test and the notes from A.C.'s supervisors
in behavioral therapy from late 2008 and early 2009. While acknowledging that the GAF
was not infallible, the ALJ noted that A.C. achieved scores on the GAF suggesting only
"moderate" difficulties in social function. A.R. 26, 481, 612. The ALJ also noted that in the
behavioral therapy A.C. participated in beginning in the later months of 2008, A.C.'s
supervisors found him to be "patient and respectful in his interactions with his peers as well
as staff members," and that superiors had little difficulty correcting him when necessary.
A.R. 26, 591–93. The ALJ did acknowledge that A.C.'s impairment in this area worsened
in late 2009, when he was hospitalized, but appeared to discount this episode in light of his
previously higher level of sociability and the stabilization of his behavior through
medication. A.R. 26–27, 640.
The magistrate judge affirmed, and noted several additional pieces of evidence
supporting the ALJ's finding. As was true in the "attending and completing tasks" domain,

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Drs. Schirado and Kravitz found A.C. to be less than markedly limited in this domain. A.R.
488–89, 554. Cartwright's own observations also support the ALJ's determination. She
reported in a Social Security questionnaire that A.C. was an effective communicator with
all persons, and that "[he] speaks (& reads) very well, and has for years — even at a
younger age."4 A.R. 149. She also claimed that A.C. could, at times, be a "compassionate
child," that he "make[s] friends very easy," and that he generally maintained good
relationships with his siblings. A.R. 479. While he noted some troubles with bullies in the
administrative hearing, A.C. implied that he got along well with other students. A.R. 42–43.
Dr. Tabbara's treatment notes from early 2008 also indicate that to the extend A.C. showed
aggressive, antisocial behavior, it was controlled to some degree by medication. A.R.
536–38.
Cartwright contends that the ALJ failed to appropriately weigh some of the more
recent evidence of A.C.'s limitations in this domain, including his suspensions from school
for fighting, the school's imposition of staggered release time from class for A.C. to avoid
interaction with bullies, and a couple of highly dramatic acts of aggression in the home.
Objections 5, ECF No. 18. But an explicit consideration of these facts does not alter the
reality that there was substantial record evidence from which the ALJ could reasonably
conclude that, despite some of A.C.'s difficulties interacting with others, his symptoms did
not, on the whole, constitute a marked impairment. The record shows that while A.C.'s
social skills were certainly diminished, and that his behavior was particularly bad in the
immediate run-up to the ALJ hearing, he also had significant strengths within this domain,
especially with regards to communicating, making friends, and cooperating with others.

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These strong communication skills are also apparent from the transcript of A.C.'s
examination by the ALJ and his attorney. A.R. 38–60.
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The ALJ and magistrate judge's choice to not give prominence to the more recent
downswing in behavior likely reflects a determination that, as weighed against other
evidence, it was insufficient to establish a marked or extreme limitation in this domain. See
White v. Comm'r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (observing that "cherry
picking" is, often, little more than a pejorative term for "weighing the evidence"). Therefore,
the objection must be overruled.
CONCLUSION AND ORDER
"No principle of administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that the remand might lead to
a different result." Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989). The ALJ's
failures to explicitly discuss certain evidence does not constitute grounds for undoing a
decision supported by the record. Accordingly, the Court will adopt the magistrate judge's
Report and affirm the ALJ.
WHEREFORE, it is hereby ordered that the objections (docket no. 18) are
OVERRULED and the Report (docket no. 17) is ADOPTED.
IT IS FURTHER ORDERED that the Commissioner's motion for summary judgment
(docket no. 15) is GRANTED and Cartwright's motion for summary judgment (docket no.
8) is DENIED.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

Dated: October 19, 2011
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I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 19, 2011, by electronic and/or ordinary mail.
Carol Cohron
Case Manager

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