Jackson, o.b.o. A.B., a Minor v. Berryhill
Filing
23
OPINION and ORDER denying 17 MOTION for Summary Judgment and granting 19 MOTION for Summary Judgment . Signed by District Judge Stephanie Dawkins Davis. (THal)
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.382 Filed 11/30/20 Page 1 of 28
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALETHA JACKSON, o.b.o. A.B., a
Minor,
Case No. 18-11391
Stephanie Dawkins Davis
United States District Judge
Plaintiff
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________/
OPINION AND ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT (ECF Nos. 17, 19)
I.
PROCEDURAL HISTORY
A.
Proceedings in this Court
On May 3, 2018, plaintiff, who is the mother of A.B., a minor child, filed the
instant suit. (ECF No. 1). This matter is currently before the Court on crossmotions for summary judgment. (ECF Nos. 17, 19).
B.
Administrative Proceedings
Plaintiff filed an application for supplemental security income childhood
disability benefits on February 6, 2015, on behalf of her minor child, A.B., alleging
disability beginning on July 1, 2011. (Tr. 14). 1 The claim was initially
1
The Administrative Record appears on the docket at entry number 13. All references to
the same are identified as “Tr.”
1
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.383 Filed 11/30/20 Page 2 of 28
disapproved by the Commissioner on June 25, 2015. Plaintiff requested a hearing
and on February 2, 2017, plaintiff, A.B., and A.B.’s grandmother, Lisa Jackson
appeared, without counsel, before Administrative Law Judge (“ALJ”) Andrew G.
Sloss, who considered the case de novo. (Tr. 29-48). In a decision dated June 2,
2017, the ALJ found that A.B. was not disabled. (Tr. 11-25). Plaintiff requested a
review of this decision, and the ALJ’s decision became the final decision of the
Commissioner when the Appeals Council, on February 28, 2018, denied plaintiff’s
request for review. (Tr. 1-5); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44
(6th Cir. 2004).
For the reasons set forth below, the undersigned DENIES plaintiff’s motion
for summary judgment, GRANTS defendant’s motion for summary judgment, and
AFFIRMS the findings of the Commissioner.
II.
ALJ FINDINGS
The claimant, A.B., born May 11, 2006, was a school-age child on February
6, 2015, the date the application was filed, and was a school-age child on the date
of the decision. (Tr. 17). The claim for disability on A.B.’s behalf is based on
attention deficit disorder. (Tr. 17).
At Step I of the three-step sequential evaluation process, the ALJ found that
A.B. has never engaged in substantial gainful activity. (Tr. 17). At Step II, the
ALJ found that A.B. has attention deficit-hyperactivity disorder, which he found to
2
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.384 Filed 11/30/20 Page 3 of 28
be a severe impairment that caused more than minimal functional limitations. Id.
At Step III, the ALJ found that A.B. did not have an impairment or combination of
impairments that met or medically equaled the Listings or that functionally equaled
the Listings. (Tr. 17-25). In denying the claim, the ALJ found that A.B. did not
meet or equal Listing 112.11 or any other equivalent Listing (Tr. 17). The ALJ
went on to evaluate A.B.’s degree of limitation in each of the six functional
equivalence domains and concluded that he had no marked or extreme limitations
in the six broad functional domains and thus did not functionally equal a listed
impairment. (Tr. 17-25). The ALJ thus determined that A.B. was not disabled
from February 6, 2015, through the date of the decision. (Tr. 25).
III.
DISCUSSION
A.
Standard of Review
In enacting the social security system, Congress created a two-tiered system
in which the administrative agency handles claims, and the judiciary merely
reviews the agency determination for exceeding statutory authority or for being
arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The
administrative process itself is multifaceted in that a state agency makes an initial
determination that can be appealed first to the agency itself, then to an ALJ, and
finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If a
claimant finds no relief during this administrative review process, the claimant
3
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.385 Filed 11/30/20 Page 4 of 28
may file an action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537
(6th Cir. 1986).
This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review is limited
in that 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); Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding whether
substantial evidence supports the ALJ’s decision, “we do 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); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a
claimant’s subjective complaints and may . . . consider the credibility of a claimant
when making a determination of disability.”); Walters, 127 F.3d at 531
(“Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among medical reports, claimant’s testimony, and other evidence.”).
4
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.386 Filed 11/30/20 Page 5 of 28
“However, the ALJ is not free to make credibility determinations based solely
upon an ‘intangible or intuitive notion about an individual’s credibility.’” Rogers,
486 F.3d at 247, quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4.
If supported by substantial evidence, the Commissioner’s findings of fact are
conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc). 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, 486
F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Commissioner may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994) (citations omitted) (citing Mullen, 800 F.2d at 545).
The scope of this Court’s review is limited to an examination of the record
only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
2001). When reviewing the Commissioner’s factual findings for substantial
evidence, a reviewing court must consider the evidence in the record as a whole,
including evidence which might subtract from its weight. Wyatt v. Sec’y of Health
5
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.387 Filed 11/30/20 Page 6 of 28
& Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of appeals
and the district 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 the reviewing court discuss every piece of evidence in the administrative
record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006)
(“[a]n ALJ can consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party.”) (internal citation marks
omitted); see also Van Der Maas v. Comm’r of Soc. Sec., 198 Fed. Appx. 521, 526
(6th Cir. 2006).
B.
Legal Standards – Eligibility for SSI Childhood Disability Benefits
A child will be considered disabled if he has a “medically determinable
physical or mental impairment, which results in marked and severe functional
limitations.” 42 U.S.C. § 1382c(a)(3)(C)(i). To determine whether a child’s
impairments result in marked and severe limitations, Social Security
Administration (SSA) regulations prescribe a three-step sequential evaluation
process:
1. A child will be found “not disabled” if he engages in
substantial gainful activity.
2. A child will be found “not disabled” if he does not
have a severe impairment or combination of
impairments.
6
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.388 Filed 11/30/20 Page 7 of 28
3. A child will be found “disabled” if he has an
impairment or combination of impairments that meets,
medically equals, or functionally equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, App. 1. 20 C.F.R.
§ 416. 924(a)-(d).
To determine whether a child’s impairment functionally equals the listings, the
SSA will assess the functional limitations caused by the child’s impairment. 20
C.F.R. § 416.926a(a). The SSA will consider how a child functions 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 yourself; and
6.
Health and physical-being.
20 C.F.R. § 416.926a(b)(1). If a child’s impairments result in “marked” limitations
in two domains, or an “extreme” limitation in one domain, 2 the impairment
functionally equals the listing and the child will be found disabled. 20 C.F.R.
§ 416.926a(d).
2
A marked limitation is one that “interferes seriously with [a child’s] ability to
independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2). An extreme
limitation is one that “interferes very seriously with [a child’s] ability to independently initiate,
sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3).
7
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.389 Filed 11/30/20 Page 8 of 28
C.
Analysis
1.
Step Two
Plaintiff contends that the ALJ committed reversible error when he failed to
find A.B.’s enuresis to be a severe impairment and then did not consider any
limitations caused by this impairment in the decision. Plaintiff recounts from the
record evidence A.B.’s treatment for this condition and difficulties caused by it.
(ECF No. 17, PageID.330-332). Plaintiff argues that there are more than de
minimis findings regarding A.B.’s enuresis and therefore, it is a severe impairment.
Plaintiff also contends that the error was not harmless because the ALJ failed to
account for any limitations caused by this condition elsewhere in his decision.
The Commissioner argues that the failure to discuss enuresis was a harmless
error because the ALJ continued the disability evaluation and relied on medical
opinions finding the condition non-severe. Further, the Commissioner contends
that there is no evidence in the record that A.B.’s enuresis caused even minimal
functional limitations.
Plaintiff is correct that the ALJ did not expressly consider whether A.B’s
diagnosis of enuresis was a severe impairment. However, to the extent there is any
error in the ALJ's failure to expressly consider enuresis, the error is harmless as
plaintiff fails to come forward with any evidence of functional limitations caused
by A.B.’s enuresis. To be considered a “severe” impairment at Step 2, the
8
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.390 Filed 11/30/20 Page 9 of 28
claimant must have a “medically determinable impairment” that causes more than
a “slight abnormality.” 20 C.F.R. § 416.924(c). An impairment is “medically
determinable” when it “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); see also S.S.R. 96-4p,
1996 WL 374187, at *1 (July 2, 1996) (“A ‘symptom’ is not a ‘medically
determinable physical or mental impairment’ and no symptom by itself can
establish the existence of such an impairment.”). An ALJ’s error in excluding an
impairment as “severe” at step two is not harmful so long as the ALJ finds another
severe impairment, continues with the five-step analysis, and accounts for all
impairments, both severe and non-severe, at the subsequent analytical steps. See
e.g., Swartz v. Barnhart, 188 Fed. Appx. 361, 368 (6th Cir. 2006).
As stated, the ALJ did not expressly discuss enuresis in the decision.
However, in this instance, the ALJ’s error is harmless for two reasons. First,
although A.B. suffers from enuresis, there is no medical opinion in the record
assessing limitations caused by enuresis during the relevant period. Richard v.
Astrue, 2011 WL 4688788, at *5 (N.D. Ohio Oct. 4, 2011) (citing Young v. Sec'y of
Health and Human Servs., 925 F.2d 146, 151 (6th Cir. 1990)) (“it is well
established that a diagnosis alone does not indicate the functional limitations
caused by an impairment.”); Despins v. Comm’r of Soc. Sec., 257 Fed. Appx. 923,
9
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.391 Filed 11/30/20 Page 10 of 28
930 (6th Cir. 2007) (“When doctors’ reports contain no information regarding
physical limitations or the intensity, frequency, and duration of pain associated
with a condition, this court has regularly found substantial evidence to support a
finding of no severe impairment.”) (citation omitted). In March 2014, A.B.’s
medical provider recommended “pull[-]ups for enuresis,” but identified no
functional limitations. (Tr. 180). In June 2015, Matthew P. Dickson, Ph.D., also
noted A.B.’s daily nocturnal enuresis (with no reported sleep problems), but
assessed no functional limitations based on the condition. (Tr. 207-09). Second,
the ALJ relied on a medical opinion that expressly evaluated the functional impact
of A.B.’s enuresis. More specifically, the ALJ gave great weight to the June 2015
opinion of William Schirado, Ph.D., and Milford Schwartz, M.D., that A.B.’s
“other disorders of urinary tract” was a non-severe impairment, i.e., that it caused
no more than minimal functional limitations. (Tr. 20-25, 53-54); see Coldiron v.
Comm’r of Soc. Sec., 391 Fed. Appx. 435, 443 (6th Cir. 2010) (“Every medical
opinion that the ALJ evaluated acknowledged Coldiron’s obesity. Thus, by
utilizing the opinions of these physicians in fashioning Coldiron’s RFC, the ALJ
incorporated the effect that obesity has on the claimant’s ability to work into the
RFC he constructed.”) (citation omitted). On this record, plaintiff points to no
evidence suggesting that A.B.’s enuresis caused any functional limitations
10
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.392 Filed 11/30/20 Page 11 of 28
warranting a finding of reversible error. Under these circumstances, the court finds
any error at step two to be harmless.
2.
Listing 112.11
Plaintiff contends that the ALJ’s determination that A.B. does not meet or
medically equal Listing 112.11 is not supported by substantial evidence. Listing
112.11 provides:
112.11 Neurodevelopmental disorders (see 112.00B9),
for children age 3 to attainment of age 18, satisfied by A
and B:
A. Medical documentation of the requirements of
paragraph 1, 2, or 3:
1. One or both of the following:
a. Frequent distractibility, difficulty sustaining
attention, and difficulty organizing tasks; or
b. Hyperactive and impulsive behavior (for
example, difficulty remaining seated, talking
excessively, difficulty waiting, appearing
restless, or behaving as if being “driven by a
motor”).
2. Significant difficulties learning and using
academic skills; or
3. Recurrent motor movement or vocalization.
AND
11
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.393 Filed 11/30/20 Page 12 of 28
B. Extreme limitation of one, or marked limitation
of two, of the following areas of mental
functioning (see 112.00F):
1. Understand, remember, or apply information
(see 112.00E1).
2. Interact with others (see 112.00E2).
3. Concentrate, persist, or maintain pace (see
112.00E3).
4. Adapt or manage oneself (see 112.00E4).
20 C.F.R. § Pt. 404, Subpt. P, App. 1. While plaintiff’s argument suggests that the
ALJ erred in failing to conclude that A.B. did not meet the Listing, plaintiff’s brief
only focuses on the requirements for a finding of functional equivalency. More
specifically, plaintiff posits that A.B. has at least “marked” impairments in the
areas of “attending and completing tasks,” “interacting and relating with others,”
and in “caring for yourself.”
a.
Attending and completing tasks
The domain of attending and completing tasks considers “how well you are
able to focus and maintain your attention, and how well you begin, carry through,
and finish your activities, including the pace at which you perform activities and
the ease with which you change them.” 20 C.F.R. § 416.926a(h). The statute
provides guidance, by age group, on how children should be functioning in this
domain:
12
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.394 Filed 11/30/20 Page 13 of 28
(iv) School-age children (age 6 to attainment of age 12).
When you are of school age, you should be able to focus
your attention in a variety of situations in order to follow
directions, remember and organize your school materials,
and complete classroom and homework assignments.
You should be able to concentrate on details and not
make careless mistakes in your work (beyond what
would be expected in other children your age who do not
have impairments). You should be able to change your
activities or routines without distracting yourself or
others, and stay on task and in place when appropriate.
You should be able to sustain your attention well enough
to participate in group sports, read by yourself, and
complete family chores. You should also be able to
complete a transition task (e.g., be ready for the school
bus, change clothes after gym, change classrooms)
without extra reminders and accommodation.
20 C.F.R. § 416.926a(h)(2)(iv). The statute also provides examples of limited
functioning in this domain:
(3) Examples of limited functioning in attending and
completing tasks. The following examples describe some
limitations we may consider in this domain. Your
limitations may be different from the ones listed here.
Also, the examples do not necessarily describe a
“marked” or “extreme” limitation. Whether an example
applies in your case may depend on your age and
developmental stage; e.g., an example below may
describe a limitation in an older child, but not a limitation
in a younger one. As in any case, your limitations must
result from your medically determinable impairment(s).
However, we will consider all of the relevant information
in your case record when we decide whether your
medically determinable impairment(s) results in a
“marked” or “extreme” limitation in this domain.
13
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.395 Filed 11/30/20 Page 14 of 28
(i) You are easily startled, distracted, or
overreactive to sounds, sights, movements, or
touch.
(ii) You are slow to focus on, or fail to complete
activities of interest to you, e.g., games or art
projects.
(iii) You repeatedly become sidetracked from your
activities or you frequently interrupt others.
(iv) You are easily frustrated and give up on tasks,
including ones you are capable of completing.
(v) You require extra supervision to keep you
engaged in an activity.
20 C.F.R. § 416.926a(h)(3).
The ALJ analyzed this domain as follows:
The claimant has less than marked limitation in attending
and completing tasks. The claimant has been diagnosed
with, and he takes medication for, attention deficit
hyperactivity disorder. School records indicate he needs
constant redirection and is easily distracted (Exhibit 6E,
page 3). However, recent psychological examinations
indicate high GAF scores (i.e., Exhibit 6F, page 8). He is
generally doing well in school despite his attention
deficit hyperactivity disorder and does not require special
education. The State agency consultant opines less than
marked limitation in this area of functioning (Exhibit lA,
page 6). That opinion is consistent with the evidence of
record and is accorded great weight.
(Tr. 21). Plaintiff provides a chart of A.B.’s difficulties which she says show that
he had marked limitations in attending and completing tasks. Plaintiff cites
examples of A.B. being unable to stay in his seat, failing to follow directions on
the bus leading to suspension from bus transportation, constantly moving and
needing reminders to sit still and stop rolling around, an inability to focus or stay in
14
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.396 Filed 11/30/20 Page 15 of 28
control, and multiple psychiatric evaluations showing poor concentration and an
inability to complete tasks. (ECF. No. 17, PageID.335-341).
Notwithstanding the evidence plaintiff cites, the ALJ’s decision finding less
than marked limitations in this domain is supported by substantial evidence. While
school records and reports from home show some impairment, they also show that
A.B. was generally successful in school and that he did not require special
education. (Tr. 21). Although A.B.’s teacher, Krista Ketterer, wrote that he
“needs constant redirection when working,” she also indicated that A.B. had no
problems completing class and homework assignments, completing work
accurately without careless mistakes, carrying out single or multi-step instructions,
and working at a reasonable rate and finishing on time. (Tr. 21, 155). In January
2015, plaintiff described A.B. as a “good student.” (Tr. 199). In a March 2015
report to SSA, plaintiff stated that “[a]cademically [A.B.] is adequate.” (Tr. 131).
And in September 2016, A.B.’s psychiatrist wrote that he was “doing well in
school.” (Tr. 235). A.B.’s GAF scores showed mild to moderate impairment,
including scores of 70 in September 2015 (Tr. 224), 60 in August 2016 (Tr. 227),
65 in September 2016 (Tr. 233), 52 in September 2016 (Tr. 239), and 60 in
October 2016 (Tr. 241). A note from September 2016 stated that A.B. was “doing
a lot better on the med[ication]” and that “all reported symptoms are reduced.”
(Tr. 235). The note also stated that A.B.’s “family is happy with progress” and that
15
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.397 Filed 11/30/20 Page 16 of 28
he is “doing well in school.” Id. In January 2017, A.B. reported that he was
having difficulty focusing in school, but enjoyed playing basketball, riding his
bike, playing video and board games with his friends and family, and watching
TV. (Tr. 250). A.B. also reportedly did “well in track and got three first place
medals” and was “involved and d[id] very well in a spelling bee.” Id.
The ALJ’s finding is also supported by the medical opinions. (Tr. 21). In
June 2015, Drs. Schirado and Schwartz opined that A.B.’s limitations in attending
and completing tasks were less than marked, opinions which the ALJ gave “great
weight.” (Tr. 21, 54). The ALJ also gave great weight to Dr. Williams’
evaluation, which included the administration of an IQ test. (Tr. 25, 211-216).
A.B.’s full-scale score on the IQ test placed him in the 30th percentile for his age,
which was well above the 2nd percentile that is associated with marked limitations.
(Tr. 215). Notably, A.B.’s performance on the achievement tests revealed above
average scores, placing him in the 99th percentile for reading, the 99.9th percentile
for spelling, and the 55th percentile in arithmetic. (Tr. 214). Based on A.B.’s
testing and observations of impaired attention and concentration, Dr. Williams
recommended: certain classroom accommodations, including a setting that
emphasizes the visual presentation of learning materials; that A.B. be allowed to
take all chapter, mid-term, final, and national exams in a low stimulus test
environment; and extended duration test times for all exams, tests, mid-terms,
16
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.398 Filed 11/30/20 Page 17 of 28
finals, and national exams. (Tr. 214-16). Such accommodations do not suggest a
marked limitation.
Based on the foregoing evidence, the undersigned agrees with the
Commissioner that the ALJ’s finding that A.B. was not markedly limited in this
domain was supported by substantial evidence. This is not to suggest that A.B.
does not suffer from some significant limitations in this domain. However,
because substantial evidence supports the ALJ’s finding, plaintiff’s citation to
other evidence in the record, even substantial evidence, to support the opposite
conclusion is not sufficient for the Court to find reversible error. See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (The ALJ’s decision
“cannot be overturned if substantial evidence, or even a preponderance of the
evidence supports the claimant’s position, so long as substantial evidence also
supports the conclusion reached by the ALJ.”).
b.
Interacting and relating to others
The domain of interacting and relating with others considers “how well you
initiate and sustain emotional connections with others, develop and use the
language of your community, cooperate with others, comply with rules, respond to
criticism, and respect and take care of the possessions of others.” 20 C.F.R.
§ 416.926a(i). 20 C.F.R. § 416.926a provides guidance, by age group, on how
children should be functioning in this domain:
17
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.399 Filed 11/30/20 Page 18 of 28
(iv) School-age children (age 6 to attainment of age 12).
When you enter school, you should be able to develop
more lasting friendships with children who are your age.
You should begin to understand how to work in groups to
create projects and solve problems. You should have an
increasing ability to understand another's point of view
and to tolerate differences. You should be well able to
talk to people of all ages, to share ideas, tell stories, and
to speak in a manner that both familiar and unfamiliar
listeners readily understand.
20 C.F.R. § 416.926a also provides examples of limited functioning in this
domain:
(3) Examples of limited functioning in interacting and
relating with others. The following examples describe
some limitations we may consider in this domain. Your
limitations may be different from the ones listed here.
Also, the examples do not necessarily describe a
“marked” or “extreme” limitation. Whether an example
applies in your case may depend on your age and
developmental stage; e.g., an example below may
describe a limitation in an older child, but not a limitation
in a younger one. As in any case, your limitations must
result from your medically determinable impairment(s).
However, we will consider all of the relevant information
in your case record when we decide whether your
medically determinable impairment(s) results in a
“marked” or “extreme” limitation in this domain.
(i) You do not reach out to be picked up and held
by your caregiver.
(ii) You have no close friends, or your friends are
all older or younger than you.
18
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.400 Filed 11/30/20 Page 19 of 28
(iii) You avoid or withdraw from people you
know, or you are overly anxious or fearful of
meeting new people or trying new experiences.
(iv) You have difficulty playing games or sports
with rules.
(v) You have difficulty communicating with
others; e.g., in using verbal and nonverbal skills to
express yourself, carrying on a conversation, or in
asking others for assistance.
(vi) You have difficulty speaking intelligibly or
with adequate fluency.
The ALJ analyzed this domain as follows:
The claimant has less than marked limitation in
interacting and relating with others. The claimant’s
schoolteacher notes in March of 2015, he has no
problems getting along with others (Exhibit 6E, page 4 ).
However, his mother testified she more recently gets
constant calls from the school about his behavior. She
also indicates he has attempted to start fires. However,
there is no indication of contact with juvenile authorities.
The State agency consultant opines no limitations in this
area of functioning (Exhibit 1 A). That opinion is
accorded partial weight. The testimony of the claimant’s
mother and the examination of Dr. Dickson confirm
moderate limitation in this area of functioning.
(Tr. 22). Plaintiff provides a chart of A.B.’s difficulties which she says show that
he had marked limitations in interacting with and relating to others. This chart
shows that A.B. is at times impulsive, has anger issues, is defiant with his mother,
isolates himself at home, is destructive, has mood swings and tantrums, has no
friends at school, was cruel to family pets, has been suspended from bus
19
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.401 Filed 11/30/20 Page 20 of 28
transportation, and has been disciplined multiple times at school because of
disruptive and physical behaviors. (ECF No. 17, PageID.335-341).
Again, the ALJ’s assessment of this domain is supported by substantial
evidence, even though plaintiff has pointed to evidence show some limitations.
While the Commissioner acknowledges that A.B. has had some difficulties
complying with rules and there was resulting disciplinary action taken, he also
points out that A.B.’s teacher stated he had no limitations interacting with and
relating to others. (Tr. 156, report completed by Krista Ketterer, dated 3/25/15).
Similarly, in June 2015, Drs. Schirado and Schwartz identified no limitation in
A.B.’s ability to interact with or relate to others. (Tr. 54). Ultimately, however,
the ALJ gave greater weight to Dr. Dickson’s opinion that A.B. had moderate
limitations in this domain. (Tr. 22, 209). Dr. Dickson, who evaluated A.B. in June
2015, discussed A.B.’s reported behavior problems—including “not staying in his
seat, disrupting others, and not waiting in line,” terrorizing pets, having conflicts
with younger children, and being easily manipulated by other children—before
concluding that his “abilities to interact and relate to others are moderately
impaired by his hyperactivity and defiance.” (Tr. 207-09) (emphasis added). Dr.
Dickson also noted that A.B. “reportedly has friends both in school and outside of
school,” “usually gets along satisfactorily with family members,” and “usually
follows directions from teachers.” (Tr. 208). Consistent with Dr. Dickson’s
20
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.402 Filed 11/30/20 Page 21 of 28
opinion, in January 2017, A.B. confirmed that he socialized with other children
both in and out of school, including Rodrico and Treyvon who he “just me[]t them
this year,” as well as Malicki and Isaiah, who he had reportedly known since the
second grade. (Tr. 250).
Based on the foregoing evidence, the undersigned agrees with the
Commissioner that the ALJ’s finding that A.B. was not markedly limited in this
domain was supported by substantial evidence. Again, because substantial
evidence supports the ALJ’s finding, plaintiff’s citation to other evidence in the
record, even substantial evidence, to support the opposite conclusion is not
sufficient for the Court to find reversible error. See Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (The ALJ’s decision “cannot be
overturned if substantial evidence, or even a preponderance of the evidence
supports the claimant’s position, so long as substantial evidence also supports the
conclusion reached by the ALJ.”).
c.
Caring for yourself
Plaintiff contends that A.B. is markedly impaired in this domain based on
his enuresis and hygiene issues. Plaintiff says that enuresis has been problematic
for A.B. for several years as reflected in the chart in Plaintiff’s brief, outlining
treatment sought for nighttime and daytime enuresis. (ECF No. 17, PageID.329332). As discussed in detail above relating to the claimed step two error, there is
21
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.403 Filed 11/30/20 Page 22 of 28
not sufficient evidence in the record to suggest the enuresis caused any functional
limitations. Accordingly, the court find no basis to overturn the ALJ’s finding that
A.B. was not limited in his ability to care for himself within the meaning of this
domain.
3.
Development of the Record/Acquiring and Using Information
Plaintiff was not represented at the hearing before the ALJ. According to
plaintiff, it is clear from the record that the family did not understand that they
needed to submit more evidence in the form of school records in order to fully
develop their case. Plaintiff contends that the ALJ knew this and owed the family
a special duty to develop the record and ensure a fair hearing. According to
plaintiff, had they understood, they might have requested a new Teacher
Questionnaire. Plaintiff argues that the testimony and other evidence in the record
about A.B.’s difficulties in school should have prompted the ALJ to obtain updated
school records.
“While the absence of counsel might cause us to scrutinize the record with
care, it alone is not a grounds for reversal or remand.” Holden v. Califano, 641
F.2d 405, 408 (6th Cir. 1981) (social security retirement benefits case). As the
Commissioner points out, “the key inquiry is whether the administrative law judge
fully and fairly developed the record through a conscientious probing of all
relevant facts.” Rowden v. Chater, 1996 WL 294464, at *1 (6th Cir. June 3, 1996).
22
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.404 Filed 11/30/20 Page 23 of 28
Specifically, the ALJ has a “duty to investigate the facts and develop the
arguments both for and against granting benefits.” Sims v. Apfel, 530 U.S. 103,
111 (2000). The ALJ is obligated “to fully develop the record,” Wright–Hines v.
Comm’r of Soc. Sec., 597 F.3d 392, 397 (6th Cir. 2010), and bears “the ultimate
responsibility for ensuring that every claimant receives a full and fair hearing,”
Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983)
(citing Richardson v. Perales, 402 U.S. 389 (1971)); see Longnecker v. Comm’r of
Soc. Sec., 2016 WL 3912859, at *6 (E.D. Mich. May 25, 2016), report and
recommendation adopted, 2016 WL 3903192 (E.D. Mich. July 19, 2016)
(O’Meara, J.). An ALJ is required to “develop [a claimant’s] complete medical
history” and to “make every reasonable effort to help [the claimant] get medical
reports from [the claimant’s] medical sources.” 20 C.F.R. § 404.1512(d); see
Sutton v. Comm’r of Soc. Sec., 2013 WL 1122877, at *2 (E.D. Mich. Mar. 18,
2013) (Cleland, J.).
As explained in Wilson v. Comm’r of Soc. Sec., 280 Fed. Appx. 456, 459
(6th Cir. 2008), there is a heightened special duty to develop the record where a
claimant is (1) without counsel; (2) incapable of presenting an effective case; and
(3) unfamiliar with hearing procedures. Id. (citing Lashley, at 1051-52). However,
plaintiff has not pointed to any evidence in the record that she was either incapable
of presenting an effective case (factor 2), or unfamiliar with hearing procedures
23
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.405 Filed 11/30/20 Page 24 of 28
(factor 3). While plaintiff says it is “clear from the record” that the family did not
know what evidence needed to be submitted, or that they understood the six
domains, plaintiff does not point the court to any evidence demonstrating this fact.
At its core, plaintiff’s complaint is not really that the ALJ failed to develop
the record during the hearing while examining the witnesses and probing the
record evidence. Rather, plaintiff’s complaint is that the ALJ failed to obtain
updated school records after the hearing. The ALJ’s special duty to the develop
the record, however, does not generally require an ALJ to gather medical and other
records that may appear to be missing from the record. Instead, as explained in
Morgan v. Astrue, 2010 WL 3723992, *8 (E.D. Tenn. June 30, 2010), report and
recommendation adopted, 2010 WL 3723985 (E.D. Tenn. Sept. 15, 2010), the
“special duty” rule articulated in Lashley and Wilson primarily requires ALJs to
expend extra effort and care in their administrative courtrooms. That is, ALJs
must develop the record in the courtroom to the fullest extent possible when
questioning the claimant and other witnesses and “by making specific requests for
additional documentation, testimony, or evidence that is unavailable at the hearing,
but would be helpful in rendering a decision.” Id. Yet, these cases do not impose
a duty on ALJs “to serve as a pro se claimant’s investigator, researcher, records
custodian, or advocate outside the courtroom.” Id. (emphasis is original). The
court further explained:
24
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.406 Filed 11/30/20 Page 25 of 28
In other words, if “special circumstances” exist at a
hearing and the ALJ becomes aware of relevant medical
records that are not part of the administrative record, the
ALJ has a duty to (1) advise the claimant to obtain and
submit those records; (2) suggest ways that the claimant
might obtain the records; (3) make sure that the claimant
understands how to submit the records; (4) refrain from
making a disability determination until the claimant has
been given a reasonable amount of time to provide the
records; and (5) explain to the claimant how the disability
determination will be made if the records are not
submitted.
Id. at *8. 3 The court also noted an exception where such a record-gathering duty
was imposed on an ALJ – where the ALJ indicated that he or she would gather
such records. Accordingly, where the ALJ affirmatively undertakes such a duty
and fails to obtain such records, the ALJ may violate his obligation to develop the
record. Id. at *9 (citing Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)); see
also Strang v. Comm’r of Soc. Sec., 611 Fed. Appx. 271, 276 (6th Cir. 2015) (The
Sixth Circuit has found it reversible error when an ALJ promises to obtain records
and does not do so.). There is no evidence that the ALJ undertook any such
obligation here, nor does plaintiff suggest as much. Instead, as discussed below,
the ALJ explained in detail how and why plaintiff should obtain and submit
updated records
3
Other courts in this Circuit have followed Morgan’s lead: Jones v. Comm’r of Soc.
Sec., 2013 WL 4748083 (N.D. Ohio Sept. 4, 2013); Taylor v. Colvin, 2013 WL 6162527 (N.D.
Ohio Nov. 22, 2013); Potter v. Colvin, 2015 WL 12531994 (E.D. Tenn. June 23, 2015).
25
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.407 Filed 11/30/20 Page 26 of 28
The present circumstances are similar to those examined in Ferland v.
Comm’r of Soc. Sec., 2018 WL 4102852 (E.D. Mich. July 31, 2018), report and
recommendation adopted, 2018 WL 4095075 (E.D. Mich. Aug. 28, 2018). There,
while the plaintiff was also pro se (by his own choice), the court found no other
special circumstances present to suggest a heightened duty. Id. (citing Nabours v.
Comm’r of Soc. Sec., 50 Fed. Appx. 272, 275-76 (6th Cir. 2002) (holding that
where the claimant “was able to put on her case with no discernable problems,”
was articulate in giving testimony, and there were no signs that the claimant’s lack
of representation was taken advantage of, the ALJ was not under a heightened duty
to develop the record under Lashley); Wilson v. Comm’r, 280 Fed. Appx. 456, 45960 (6th Cir. May 29, 2008) (finding that the ALJ adequately questioned the
claimant on work limitations and did not need to inquire further when the claimant
failed to tell the ALJ about certain mental or psychological limitations). As in
Ferland, plaintiff here is like most all Social Security claimants, who are, no doubt,
not well versed in hearing procedures. But, as set forth above, there is nothing in
the transcript to demonstrate that plaintiff’s “grasp of the proceedings” was so
insufficient so as to require the ALJ to further develop the record. See Wilson, 280
Fed. Appx. at 459. Furthermore, at the hearing, the ALJ explained that he did not
have any evidence for almost two years and that an attorney could help them
ensure that all their evidence was in. (Tr. 31). The ALJ also explained that if
26
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.408 Filed 11/30/20 Page 27 of 28
plaintiff did not obtain a lawyer, she would have to gather any new evidence and
submit it after the hearing. (Tr. 32). The ALJ explained that cases are generally
better presented with legal representation. (Tr. 33). Plaintiff said she had copies of
A.B.’s most recent testing, which she provided to the ALJ and then she decided to
proceed without a lawyer. (Tr. 34). The ALJ also asked plaintiff to obtain A.B.’s
therapy records. (Tr. 44, 46-47). While these discussions did not involve school
records, the ALJ made it clear that updated records were important to the decisionmaking process and that it was plaintiff’s responsibility to provide them, thus
complying with Morgan’s requirement to advise the claimant on how to obtain and
submit records of which the ALJ became aware during the hearing. Id. at *8. The
colloquy suggests that plaintiff understood this responsibility. Plaintiff suggests
that the ALJ’s discussion on the domain of acquiring and using information is not
sufficient because of the lack of updated school records. While the court takes no
position on whether such an effort would have been successful, it is notable that
even though plaintiff was represented by counsel at the appeals council level, she
did not attempt to submit any updated school records to appeals council or to this
court. (Tr. 10). See Tucker on Behalf of PCW v. Comm’r of Soc. Sec., 2019 WL
2331647, *12 (N.D. Ohio May 15, 2019) (No error where the ALJ did not request
updated school records after the hearing where some educational records contained
in the record.).
27
Case 4:18-cv-11391-SDD-RSW ECF No. 23, PageID.409 Filed 11/30/20 Page 28 of 28
IV.
CONCLUSION AND ORDER
Even if substantial evidence exists suggesting otherwise, this Court may not
reverse the Commissioner’s decision merely because it disagrees or because “there
exists in the record substantial evidence to support a different conclusion.”
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc). “The substantial evidence
standard presupposes that there is a ‘zone of choice’ within which the
Commissioner may proceed without interference from the courts.” Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (citing Mullen, 800
F.2d at 545). Plaintiff’s evidence is insufficient to detract from the substantial
evidence that he ALJ cited in support of the decision. Here, the ALJ’s decision
falls well within the zone of choice and there is no basis to disturb that decision.
Accordingly, plaintiff’s motion for summary judgment is DENIED, defendant’s
motion for summary judgment is GRANTED, and the findings of the
Commissioner are AFFIRMED.
IT IS SO ORDERED.
Date: November 30, 2020
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States District Judge
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?