Davenport et al v. SSA, Commissioner of

Filing 19

ORDER accepting 15 Report and Recommendation, overruling plaintiff's objections 16 17 , granting 12 defendant's Motion for Summary Judgment and denying 11 plaintiff's Motion for Summary Judgment and dismissing plaintiff's claims. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YOLANDA DAVENPORT,
on behalf of J.E.D.,
Plaintiff,
Case No. 16-CV-11963
HON. GEORGE CARAM STEEH

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
__________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION, (DOC. 15),
OVERRULING PLAINTIFF’S OBJECTIONS, (DOC. 16 AND 17),
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
(DOC. 12), DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, (DOC. 11), AND DISMISSING PLAINTIFF’S CLAIMS
This matter is before the Court on the parties’ cross-motions for
summary judgment. Plaintiff Yolanda Davenport, on behalf of her minor
son J.E.D., seeks judicial review of the ALJ’s decision finding that J.E.D. is
not disabled. (Doc. 11). Defendant Commissioner of Social Security seeks
to affirm the denial of plaintiff’s application for Supplemental Security
Income (SSI) under the Social Security Act. (Doc. 12). The matter was
referred to Magistrate Judge Anthony P. Patti, who issued a report and
recommendation on August 11, 2017, recommending that plaintiff’s motion
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be denied and defendant’s motion be granted. (Doc. 15). Plaintiff filed
objections on August 25, 2017. (Doc. 16). Plaintiff filed her objections
again on August 31, 2017. (Doc. 17). Defendant replied on August 31,
2017. (Doc. 18).
I. Procedural and Factual History
Plaintiff filed an application for SSI benefits on February 11, 2014,
alleging that J.E.D. has been disabled since April 19, 2012. After this
application was denied, plaintiff requested a hearing before an
Administrative Law Judge (ALJ). ALJ David F. Neumann held a hearing on
May 14, 2015 and subsequently determined that J.E.D. was not disabled
within the meaning of the Social Security Act. At Step One, the ALJ
determined that J.E.D. has not engaged in substantial gainful activity since
February 11, 2014. At Step Two, the ALJ identified severe impairment of
speech/articulation disorder. At Step Three, the ALJ found that J.E.D.’s
severe impairment does not meet, or medically or functionally equal, the
severity of one of the listed impairments.
The Appeals Counsel of the Social Security Administration denied
plaintiff’s request for review of the ALJ’s decision on April 6, 2016, “at which
point the ALJ’s decision became the final decision of the Commissioner of
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Social Security.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004) (internal citations omitted). Plaintiff initiated this civil action for
review of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g)
on May 31, 2016. (Doc. 1).
II. Legal Standard
The standard of review to be employed by the Court when examining
a report and recommendation is set forth in 28 U.S.C. § 636. This Court
“shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). This Court “may accept, reject or
modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
A district court may affirm, modify, or reverse the Commissioner’s
decision, with or without remand. See 42 U.S.C. § 405(g). The Court
“must affirm the Commissioner’s decision if it is supported by substantial
evidence and was made pursuant to proper legal standards.” Rabbers v.
Comm’r Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (internal citations
omitted). “Substantial evidence is defined as more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (internal citations
omitted). In deciding whether substantial evidence supports the ALJ’s
decision, the Court does “not try the case de novo, resolve conflicts in
evidence or decide questions of credibility.” Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007) (internal citations omitted).
The claimant “has the ultimate burden to establish an entitlement to
benefits by proving the existence of a disability.” Moon v. Sullivan, 923
F.2d 1175, 1181 (6th Cir. 1990). The Court must “take into account
whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir.
2002) (internal citations omitted). Nevertheless, “if substantial evidence
supports the ALJ’s decision, this Court defers to that finding even if there is
substantial evidence in the record that would have supported an opposite
conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (internal
citations omitted).
III. Analysis
Magistrate Judge Patti’s report and recommendation concludes that
the ALJ’s opinion is supported by substantial evidence and that plaintiff has
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not shown reversible error. In response, plaintiff filed two objections. (Doc.
16 and 17).
First, plaintiff argues that Magistrate Judge Patti erred by finding that
it was proper for the ALJ to ignore the opinions of J.E.D.’s teachers.
Plaintiff refers to teacher questionnaires submitted by Chris Wilinski and
Ann Kay. Plaintiff asserts that the ALJ’s reasoning is insufficient because
he did not discuss the teachers’ opinions in some of his findings under the
six functional equivalent domains.
The ALJ did not ignore Wilinski’s opinion, but rather, evaluated it and
chose to discount it. Teachers like Wilinski are educational personnel,
which the pertinent SSR categorizes as non-medical sources. SSR 0603P, 2006 WL 2329939, at *2 (S.S.A. Aug. 9, 2006). “An opinion from a
‘non-medical source’. . . may, under certain circumstances, properly be
determined to outweigh the opinion from a medical source.” SSR 06-03P,
*3. “For example, this could occur if the ‘non-medical’ source has seen the
individual more often and has greater knowledge of the individual’s
functioning over time and if the ‘non-medical source’s’ opinion has better
supporting evidence and is more consistent with the evidence as a whole.”
Id. These circumstances were not present here. Instead, the ALJ

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acknowledged that Wilinski was J.E.D.’s first grade teacher, but found that
Wilinski’s questionnaire had “little weight” because “the symptoms he
described therein are inconsistent with the opinions offered by Dr. Hayter
and Ms. Wayburn, both of which are internally consistent and substantially
supported by the medical and other education records presented.” (R. at
33-34).
The ALJ did not ignore Kay’s opinion. Kay’s questionnaire was
submitted to the Appeals Council after the ALJ issued his decision. As
such, plaintiff’s reliance on Kay’s opinion is misplaced.
Plaintiff’s argument relies on numerous extra-jurisdictional case law.
Plaintiff cites Murphy v. Astrue, 496 F.3d 630 (7th Cir. 2007) to argue that
an ALJ errs when he does “not explain why he gave no weight to the
portions of the school documents which support a finding that [the claimant]
is disabled.” Id. at 634. Plaintiff further cites D.H. ex rel. Heath v. Astrue,
No. 07-C-309, 2009 WL 3488089 (E.D. Wis. Oct. 21, 2009) for the
proposition that an ALJ’s reasoning is insufficient where it does “not set
forth the required explanation for why strong evidence favorable to the
claimant was overcome by the evidence the ALJ cited.” Id. at *12. But
here, the ALJ explained that he gave little weight to Wilinski’s questionnaire

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because it was inconsistent with evidence from Dr. Hayter and Ms.
Wayburn, and Kay’s opinion was not before the ALJ.
Plaintiff also cites Dean on behalf of A.L.D. v. Berryhill, No. 14-C10373, 2017 WL 1197099 (N.D. Ill. Mar. 31, 2017) for its conclusion that an
ALJ’s statement that a teacher’s opinion was not consistent with the
evidence lacked evidentiary support and adequate analysis. See id. at *8.
Here, however, the ALJ’s decision has evidentiary support and analysis.
The ALJ found that Wilinski’s description of J.E.D. as impulsive and having
a short attention span was inconsistent with evidence, from Ms. Wayburn
and Dr. Hayter, that J.E.D. acted appropriately and was attentive without
restlessness or distractibility. (Tr. 33-34, 174, 184, 186-87).
Second, plaintiff argues that Magistrate Judge Patti erred by finding
that the ALJ properly “considered the whole child, including various support
mechanisms,” in making a determining that J.E.D. was not disabled. (Doc.
17 at PageID 331). Plaintiff asserts that the ALJ failed to consider the fact
that J.E.D. received extra help and time in school, received speech
therapy, and took medication for attention deficient hyperactivity disorder
(ADHD).

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Pursuant to SSR 09-1p, ALJs are not required to discuss each
potentially relevant consideration listed. SSR09-1p, 2009 WL 396031, at *3
(Feb. 17, 2009). ALJs must only provide sufficient detail such that
subsequent reviewers can understand how they made their findings. Id.
This can be accomplished by explaining the weight an ALJ gives
questionnaires and opinions in the record. See Worwell ex rel. G.W. v.
Astrue, No. 1:10cv1307, 2012 WL 669974, at *5 (N.D. Ohio Feb. 29, 2012).
The report and recommendation recounts the ALJ’s consideration of
Wilinski’s report regarding J.E.D.’s performance in school, (Doc. 15 at
PageID 301-04, 311), the ADHD diagnosis and medication, (Doc. 15 at
PageID 311), and J.E.D.’s speech therapy, (Doc. 15 at PageID 311).
Magistrate Judge Patti further explained that “[t]he questions of how much
‘less independent the child is in functioning’ or of whether J.E.D. is
receiving ‘a substantial amount of assistance’ are inherently linked to a
weighing of the evidence, a task which the ALJ handled appropriately.”
(Doc. 15 at PageID 311-12). Magistrate Judge Patti properly declined to
reweigh the evidence in J.E.D.’s favor. This Court shall do the same.
Plaintiff cites additional extra-jurisdictional cases, including M.W. ex
rel. Terry v. Astrue, No. 10 C 7813, 2012 WL 1532386 (N.D. Ill. Apr. 30,

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2012) to argue that an ALJ’s decision is deficient if it “fails to account for. . .
[a] modified grading scale” and teachers who grade the claimant using less
rigorous methods. Id. at *11. Plaintiff also cites Hopgood ex rel. L.G. v.
Astrue, 578 F.3d 696 (7th Cir. 2009) to assert that ALJs err when they fail
to explain why they do not credit portions of the record, like a claimant’s low
grades or decreased assignment rate, that are favorable to the claimant.
These cases are distinguishable because here, as Magistrate Judge Patti
stated, the ALJ considered the support J.E.D. received and properly
weighed the evidence. Moreover, plaintiff’s argument regarding J.E.D.’s
grades fails. Plaintiff relies on her own testimony, which the ALJ thoroughly
considered, and a school transcript, that was not before the ALJ.
IV. Conclusion
Accordingly, plaintiff’s objections are OVERRULED. Consistent with
the analysis herein, the Court hereby ACCEPTS Magistrate Judge Patti’s
report and recommendation, GRANTS defendant’s motion for summary
judgment, DENIES plaintiff’s motion for summary judgment and
DISMISSES plaintiff’s complaint with prejudice.
IT IS SO ORDERED.
Dated: September 11, 2017
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S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon
attorneys of record on
September 11, 2017, by electronic and/or
ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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