Peterson v. SSA, Commissioner of

Filing 17

OPINION AND ORDER Adopting the 14 Report and Recommendation, Granting Plaintiff's 15 Motion for Extension of Time, Denying Plaintiffs' 16 Objections, Denying Plaintiffs' 10 Motion for Summary Judgment, and Granting Defendant's 13 Motion for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Kimberly D. Peterson, on behalf on
Minor KDP, and KDP,
Case No. 15-cv-14430
Plaintiffs,
v.

Judith E. Levy
United States District Judge

Commissioner of SSA,

Mag. Judge Elizabeth A. Stafford
Defendant.

________________________________/
OPINION AND ORDER ADOPTING THE REPORT AND
RECOMMENDATION [14], GRANTING PLAINTIFFS’ MOTION
FOR EXTENSION OF TIME [15], DENYING PLAINTIFFS’
OBJECTIONS [16], DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [10], AND GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [13]
Plaintiff Kimberly D. Peterson, on behalf of her 16-year-old minor
child K. D. P., filed this case on December 22, 2015, seeking that the
Court reverse the decision of defendant Commissioner of Social Security
Administration denying K. D. P.’s application for social security
disability benefits. (See Dkt. 1.) The parties filed cross-motions for
summary judgment, and on February 15, 2017, the Magistrate Judge
filed a Report and Recommendation that defendant’s motion (Dkt. 13)

be

granted,

plaintiffs’

motion

(Dkt.

10)

be

denied,

and

the

Commissioner’s decision be affirmed. (Dkt. 14 at 2.) Plaintiffs’ filed
untimely objections to the report and recommendation (Dkt. 16) and a
motion for extension of time “due to computer error.”

(Dkt. 15.)

Defendant consented to the late filing of the Objections (id. at 2), so the
motion is granted and the merits of the objections will be addressed.
For the reasons set forth below, the Court adopts the Magistrate
Judge’s Report and Recommendation, denies plaintiffs’ objections,
denies plaintiffs’ motion for summary judgment, and grants defendant’s
motion for summary judgment.
I.

Background
Plaintiff K. D. P. was born on December 4, 1999, and alleges that

he began suffering from narcolepsy on November 18, 2012. (Dkt. 7-3 at
3.)

His narcolepsy was confirmed by Dr. Gloria Chaney of the

Children’s Hospital of Michigan at the Detroit Medical Center in
October 2013. (Dkt. 7-7 at 82.) Narcolepsy is “a chronic disorder that is
characterized by permanent and over-whelming feelings of sleepiness . .
. . that interferes with the[] ability to concentrate and perform daily
functions.” (Id. at 75.)
2

In December 2012, at the time he was repeating the sixth grade,
K. D. P. had a Psychoeducational Evaluation at the request of his
mother Kimberly Peterson.

(Id. at 57-66.)

The Evaluation was

performed by Muna Mashrah, M.A., a Certified School Psychologist,
who observed K. D. P. in the classroom, reviewed records, and received
input from K. D. P.’s teachers and his mother. (Id. at 57.) K. D. P.’s
teacher reported that he was performing at grade-level, but “he tends to
fall asleep often” and “his progress is hindered by him sleeping in class.”
(Id. at 58.) Mashrah evaluated K. D. P. using the Woodcock Johnson
Test of Cognitive Abilities, Third Edition, and concluded that K. D. P.
performed at the average level in General Intellectual Ability, VisualSpatial Thinking, Auditory Processing, Fluid Reasoning, Processing
Speed, Short-term Memory, and Working Memory.
performed

below

average

in

Long-term

(Id. at 61.)

Retrieval

and

low

He
in

Comprehension-Knowledge (id.), which Mashrah qualified by noting
that “limited exposure to vocabulary and experiences may have affected
his performance on comprehension tasks.” (Id. at 66.)
Mashrah also evaluated K. D. P. using the Woodcock Johnson Test
of Achievement, Third Edition, and concluded that K. D. P. performed
3

at the average level for Basic Reading Skills and Math Calculation, but
below average for Reading Comprehension, Reading Fluency, and Math
Reasoning. (Id. at 63.) Mashrah concluded that K. D. P. “would benefit
from academic interventions to target fractions, mathematical symbols,
vocabulary, and abbreviations, as well as vocabulary words for reading
comprehension” (id. at 63), but recommended against the need for
special education services. (Id. at 66.)
Plaintiff Kimberly Peterson filed K. D. P.’s application for
disability benefits on May 3, 2013, (Dkt. 7-5 at 1), and the
Administrative Law Judge held a hearing on May 6, 2014. (Dkt. 7-2 at
52.) The ALJ found that K. D. P. was not disabled within the meaning
of the Social Security Act (Dkt. 7-2 at 36-38), and the Appeals Council
denied review. (Dkt. 7-2 at 2.) The ALJ’s opinion is thus the final
decision of the Commissioner.
II.

Standard
An applicant for disability benefits who is not satisfied with the

Commissioner’s final decision may obtain review in federal district
court.

42 U.S.C. § 405(g).

Commissioner’s

conclusions

The district court “must affirm the
absent
4

a

determination

that

the

Commissioner has failed to apply the correct legal standard or has
made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005) (internal quotation marks omitted).

The court may affirm,

modify, or reverse the Commissioner’s decision, and may also choose to
remand the case for rehearing when appropriate. 42 U.S.C. § 405(g).
The Commissioner’s findings of fact are given substantial
deference on review and are conclusive if supported by substantial
evidence. Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994); 42 U.S.C.
§ 405(g). Substantial evidence is “more than a scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007). If there is substantial evidence
to support the Commissioner’s decision, the district court must affirm it
even if substantial evidence also supports a contrary conclusion. Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Wright v. Massanari,
321 F.3d 611, 614 (6th Cir. 2003); see also Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (if the decision is
supported by substantial evidence, “it must be affirmed even if the
5

reviewing court would decide the matter differently . . . and even if
substantial evidence also supports the opposite conclusion”).
When deciding whether there is substantial evidence to support
the Commissioner’s factual findings, the district court is limited to an
examination of the record and should consider the record as a whole.
Bass, 499 F.3d at 512-13; Wyatt v. Sec’y of Health and Human Servs.,
974 F.2d 680, 683 (6th Cir. 1992). However, neither the Commissioner
nor the reviewing court must discuss every piece of evidence in the
administrative record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x
496, 508 (6th Cir. 2006).
When

a

Magistrate

Judge

has

submitted

a

Report

and

Recommendation and a party has filed timely objections, the district
court conducts a de novo review of those parts of the Report and
Recommendation to which the party objects. 28 U.S.C. § 636(b)(1)(C).
III.

Analysis
a. Objection 1
Plaintiffs first argue that the Magistrate Judge erred by finding

that a medical advisor’s opinion on equivalency was not required and

6

there was no need for an updated medical opinion based on new
evidence in the record. (Dkt. 16 at 2.)
The Social Security Administration “requires that the judgment of
a physician (or psychologist) designated by the Commissioner on the
issue of equivalence on the evidence before the administrative law judge
. . . must be received into the record as expert opinion evidence and
given appropriate weight.” SSR 96-6P, 1996 SSR LEXIS 3, at *8 (July
2, 1996). “When additional medical evidence is received that in the
opinion of the [ALJ] . . . may change the State agency medical or
psychological consultant’s finding that the impairment(s) is not
equivalent in severity to any impairment in the Listing of Impairment,”
the ALJ “must obtain an updated medical opinion from a medical
expert.” Id. at *9-10.
The ALJ found that K. D. P. “does not have an impairment or
combination of impairments that meets or medically equals the severity
of one of the listed impairments” in 20 C.F.R. §§ 416.924-.926. (Dkt. 7-2
at 39.) And the record includes the medical opinion of two state agency
consultants, Jerry Evans, M.D., and Zahra Khademian, M.D., that
K. D. P.’s “medically determinable impairment or combination of
7

impairments is severe, but does not meet, medically equal, or
functionally equal the [relevant] listings.” (Dkt. 47-3 at 8; see Dkt. 14 at
7.)
Plaintiffs argue that “[t]here is no medical evaluation and/or
medical advisor’s opinion concerning equivalency,” and the “Magistrate
[Judge] does not address this issue” but rather “simply argues that a
medical opinion was submitted,” which “does not address the
requirement of a medical advisor’s opinion.” (Dkt. 16 at 2-3 (emphasis
in original).) But this is directly contradicted by the assessment of Drs.
Evans and Khademian, who opined that K. D. P.’s impairments do not
“medically equal . . . the listings.” (Dkt. 7-3 at 8.)
Plaintiff also argues that the Magistrate Judge erred by not
recommending that the Court remand to the ALJ to obtain an updated
medical opinion on the issue “of equivalence” (plaintiffs do not specify
whether they mean medical or functional equivalence), given that “the
opinion of the ALJ changed based on evidence received subsequent to
the opinions of Drs. Evans and Khademian.” (Dkt. 16 at 3.) But the
ALJ did not change her opinion regarding medical equivalence,
agreeing with the doctors that K. D. P.’s impairment did not medically
8

equal a listed impairment. (Dkt. 7-2 at 39.) Rather, the ALJ noted that
“evidence received subsequent to” the opinion of Drs. Evans and
Khademian “supported finding ‘less than marked’ limitations in other
domains,” which relates to functional equivalence.
The Social Security Administration does not require a medical
expert opinion—and thus does not require an updated medical expert
opinion given new evidence—to decide the issue of functional
equivalence when considering childhood disability claims. See Social
Security Administration’s “Hearings, Appeals & Litigation Law
Manual” (“HALLEX”) I-5-4-30, 1993 WL 13011402, at *3 (March 19,
1993). And as noted above, an updated medical opinion is only required
when, “in the opinion of the [ALJ],” the new evidence “may change the
State agency medical or psychological consultant’s finding that the
impairment(s) is not” medically equal to a listed impairment. See SSR
96-6P, 1996 SSR LEXIS 3, at *9-10.
Nothing in the record suggests that the additional evidence cited
by the ALJ might have changed the opinion of Drs. Evans or
Khademian that K. D. P.’s impairment did not medically equal a listed
impairment. To the contrary, the new evidence persuaded the ALJ that
9

K. D. P.’s condition had improved since their initial evaluation, with the
use of medication and power napping, supporting a finding that K. D.
P. “no longer [had] marked [limitations] in physical and wellbeing.”
(Dkt. 7-2 at 48.)
The ALJ obtained physician opinions on the issue of medical
equivalence and did not need to obtain a new opinion, because the new
evidence only related to the ALJ’s findings regarding functional
equivalence, for which medical expert opinions are not required in
childhood disability cases. Plaintiffs do not point to any evidence to
suggest that the ALJ should have determined that the new evidence
would change the medical doctors’ expert opinion as to medical
equivalence. Thus plaintiffs’ first objection is denied.
b. Objection 2
Plaintiffs next argue that the Magistrate Judge erred by finding
that the ALJ’s decision was supported by substantial evidence. (Dkt. 16
at 3-5.)
According to plaintiffs, even if the ALJ’s decision was supported
by substantial evidence, it should not be upheld because the Social
Security

Administration’s

regulations
10

were

not

followed,

which

prejudiced K. D. P. on the merits. (Id. at 4.) Plaintiffs do not specify
the regulations to which it is referring. Insofar as they may be referring
to the regulations noted in their first objection, the Court has already
held that the ALJ did not in fact violate those regulations.
Plaintiffs also argue that the evidence supports a finding of
disability, and the ALJ and Magistrate Judge “misconstrued medical
evidence and testimony that ultimately, resulted in an inadequate
determination to address [K. D. P.]’s multiple severe medical conditions
(specifically, narcolepsy and asthma).” (Id. at 4.) Plaintiffs point to
evidence that K. D. P. suffers “excessive daytime sleepiness” that makes
him “unable to be attentive in his school classes, stay on task[,] or
complete assignments in a timely manner.” (Id.) They also highlight
evidence that K. D. P.’s “grades suffer as a result and he has been
diagnosed with a learning disability,” that he “is not allowed to travel
alone for long periods,” and that his medication causes “cramping and
nausea,” among other things. (Id. at 5.)
But even assuming that this evidence is enough to draw a
conclusion contrary to that of the Commissioner, this Court must still
affirm

if

there

is

also

substantial
11

evidence

to

support

the

Commissioner’s decision.

Cutlip, 25 F.3d at 286 (if the decision is

supported by substantial evidence, “it must be affirmed . . . even if
substantial evidence also supports the opposite conclusion”). And there
is.
Plaintiffs do not specifically note which conclusions by the ALJ
regarding whether K. D. P. suffers from marked limitations are
erroneous, instead arguing in general terms that the ALJ should have
determined that K. D. P. was disabled.

(Dkt. 16 at 5.)

The Court

assumes plaintiffs are making the same objection regarding substantial
evidence that they made previously—that the ALJ erred in finding that
K. D. P. did not have marked limitations in the domains of acquiring
and using information and attending and completing tasks. (See Dkt.
10 at 14-16.)
The Social Security Administration defines a marked limitation as
one “seriously interfering” with an applicant’s ability to independently
initiate, sustain, or complete activities.

20 C.F.R. § 416.926a(e)(2).

Pursuant to the regulations, in the domain of acquiring and using
information adolescents should be able to do the following:
In middle and high school, you should continue to
demonstrate what you have learned in academic
12

assignments (e.g., composition, classroom discussion, and
laboratory experiments). You should also be able to use
what you have learned in daily living situations without
assistance (e.g., going to the store, using the library, and
using public transportation).
You should be able to
comprehend and express both simple and complex ideas,
using increasingly complex language (vocabulary and
grammar) in learning and daily living situations (e.g., to
obtain and convey information and ideas). You should also
learn to apply these skills in practical ways that will help
you enter the workplace after you finish school (e.g., carrying
out instructions, preparing a job application, or being
interviewed by a potential employer).
20 C.F.R. § 416.926a(g)(2)(v). And as to the domain of attending and
completing tasks, adolescents should be able to do the following:
In your later years of school, you should be able to pay
attention to increasingly longer presentations and
discussions, maintain your concentration while reading
textbooks, and independently plan and complete long-range
academic projects. You should also be able to organize your
materials and to plan your time in order to complete school
tasks and assignments. In anticipation of entering the
workplace, you should be able to maintain your attention on
a task for extended periods of time, and not be unduly
distracted by your peers or unduly distracting to them in a
school or work setting.
20 C.F.R. § 416.926a(h)(2)(v).

13

To treat K. D. P.’s narcolepsy, his treating physician, Amal
Omran, M.D., prescribed Ritalin and advised that K. D. P. should take
two to four fifteen-minute power naps as needed. (See Dkt. 7-7 at 35.)
Since then, K. D. P. has “overall improvement in daytime sleepiness”
and “mild improvement in his academic scores.” (See Dkt. 7-2 at 41; 7-7
at 35.) In fact, he went from having failing grades to receiving “As and
Bs in every subject.” (Dkt. 7-2 at 41; see Dkt. 7-7 at 90.)
And Muna Mashrah, M.A., who conducted the Psychoeducational
Evaluation that K. D. P.’s mother requested, noted that K. D. P. was
“socially well-adjusted” and did “not display behavioral issues,” and in
reviewing his classroom performance and evaluative data, concluded
that “there d[id] not appear to be an indication of significant academic
impairments in reading or mathematics.” (Dkt. 7-7 at 53.) Mashrah
noted that the “evaluative data does not provide indications of a child
with a learning disability” and that “cognitive testing revealed many
strengths in the areas assessed.”

(Id.)

There is also evidence that

K. D. P. attended a mentoring program and participated in flag football
after school. (Dkt. 7-2 at 64.) K. D. P.’s mother testified that “[a]ll he
do[es] is exercise, lift weights.” (Id. at 66.)
14

Substantial evidence supports the ALJ’s finding that K. D. P. had
less than marked limitations in the areas of acquiring and using
information and attending and completing tasks.

His grades,

information provided by his teachers, the testimony of Kimberly
Peterson, and the psychoeducational evaluation performed by Muna
Mashrah substantially support the ALJ’s finding that K. D. P. can
perform these functional domains with less than marked limitations.
Thus, plaintiffs’ second objection is denied.
IV.

Conclusion
For the reasons set forth above, the Report and Recommendation

(Dkt. 14) is ADOPTED, plaintiffs’ motion for extension of time (Dkt. 15)
is GRANTED, plaintiffs’ objections (Dkt. 16) are DENIED, plaintiffs’
motion for summary judgment (Dkt. 10) is DENIED, and defendant’s
motion for summary judgment (Dkt. 13) is GRANTED.
IT IS SO ORDERED.
Dated: April 28, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
15

ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 28, 2017.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

16