Finney v. Commissioner of Social Security

Filing 19

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONNIE FINNEY,
o.b.o C.F., a Minor,
Plaintiff,

Case No. 1:15-cv-460

v.
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
/
OPINION
This is a social security action brought under Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security that
Plaintiff’s son, C.F., is not entitled to Supplemental Security Income under Title XVI of the Social
Security Act. Section 405(g) limits the Court to a review of the administrative record, and provides
that if the Commissioner’s decision is supported by substantial evidence, it shall be conclusive. The
Commissioner has found that C.F. is not disabled within the meaning of the Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may

not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who
is charged with finding the facts relevant to an application for disability benefits, and her findings
are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff’s son, C.F., was born on May 20, 2006. (PageID.69.) On June 22, 2012,
Plaintiff submitted an application for disability benefits, asserting that C.F. had been disabled since
October 1, 2011, due to a learning disability, ADHD, and mood disorders. (PageID.86, 149–58.)
This application was denied, after which time Plaintiff requested a hearing before an Administrative

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Law Judge (ALJ). (PageID.98–109.) On October 15, 2013, ALJ Carol Guyton conducted an
administrative hearing at which both Plaintiff and C.F. testified. (PageID.61–84.) In a written
decision dated January 17, 2014, the ALJ determined that C.F. was not entitled to disability benefits.
(PageID.39–60.) The Appeals Council declined to review this determination, rendering it the
Commissioner’s final decision in the matter. (PageID.32–37.) Plaintiff subsequently initiated this
appeal under 42 U.S.C. § 405(g).
ALJ’S DECISION
Federal law provides that an “individual under the age of 18” 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
satisfies this standard, the Commissioner must evaluate the claim under a three-step sequential
process. 20 C.F.R. § 416.924.
In the first step, if the ALJ determines that the child is engaged in substantial gainful
activities he cannot be found to be disabled. 20 C.F.R. § 416.924(b); Elam v. Comm’r of Soc. Sec.,
348 F.3d 124, 125 (6th Cir. 2003). If the child is not engaged in substantial gainful activity the
analysis proceeds to step two, at which point the ALJ must determine whether the child has a severe
impairment or combination of impairments. 20 C.F.R. § 416.924(c); Elam, 348 F.3d at 125. If the
ALJ determines that the child suffers from a severe impairment, or combination of impairments, the
analysis proceeds to step three, at which point the ALJ must determine whether the impairment(s)
“meet, medically equal, or functionally equal” one of the impairments identified in the Listing of
Impairments. 20 C.F.R. § 416.924(d); Elam, 348 F.3d at 125.
After noting that C.F. was not engaged in substantial gainful activity, the ALJ

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proceeded to the second step of the analysis, finding that C.F. suffered from the following severe
impairments: (1) attention deficit hyperactivity disorder (ADHD); (2) oppositional defiant disorder
(ODD); and (3) a mood disorder. (PageID.45.) At the third step of the analysis, the ALJ concluded
that C.F.’s impairments do not, individually or in combination, meet or medically equal any
impairment identified in the Listing of Impairments detailed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (PageID.45.) The ALJ further determined that C.F.’s impairments do not functionally
equal in severity any impairment identified in the Listing of Impairments. (PageID.45–55.)
To determine whether a child claimant suffers from an impairment which is the
functional equivalent of a listed impairment, the ALJ must evaluate how the child functions in each
of six domains of functioning described as “broad areas of functioning intended to capture all of
what a child can or cannot do.” 20 C.F.R. § 416.926a(a)–(b). To be considered disabled, the child’s
impairments must result in “marked” limitations in two domains of functioning or an “extreme”
limitation in one domain. 20 C.F.R. § 416.926a(a). The six domains of functioning are:
(i)
(ii)
(iii)
(iv)
(v)
(vi)

acquiring and using information,
attending and completing tasks,
interacting and relating with others,
moving about and manipulating objects,
caring for yourself, and
health and physical well-being.

20 C.F.R. § 416.926a(b)(1).
The ALJ found that C.F. experienced less than marked limitations in acquiring and
using information, attending and completing tasks, caring for himself, and in health and physical
well-being. (PageID.50–52, 54–55.) He had a marked limitation in interacting and relating with
others. (PageID.53.) Finally, Plaintiff had no limitation in moving about and manipulating objects.
(PageID.53–54.) Accordingly, the ALJ determined that C.F. was not disabled as defined by the
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Social Security Act.
1.

The ALJ Did Not Need to Obtain an Updated Opinion on Functional
Equivalence.
At the close of the administrative hearing, the ALJ noted that at the lower level, there

was no severe impairment found, but that she was sending it to a medical expert for further review.
(PageID.83.) On December 6, 2013, Dr. Jeffrey Andert responded to the ALJ’s interrogatory,
opining that Plaintiff’s ADHD, ODD, and mood disorder were severe impairments. (PageID.395.)
He further provided an evaluation of Plaintiff regarding the above functional domains, and the ALJ
indicated she gave “great weight” to this opinion. (PageID.50). Plaintiff claims, however, that the
ALJ was required to obtain an updated medical opinion regarding functional equivalence because
Dr. Andert had not reviewed the entire record, and had the doctor reviewed the entire record, he
would have found that Plaintiff was also marked in the domain of caring for himself.1
(PageID.428–29.) Plaintiff further argues that in stating that the new evidence would not have
changed the decision, the ALJ mischaracterized the record. The Court finds no error.
Plaintiff’s argument, and the Commissioner’s response, rests on a reading of SSR 966p2 that requires an ALJ to obtain an updated medical opinion in two circumstances:
When no additional medical evidence is received, but in the opinion
of the administrative law judge or the Appeals Council the symptoms,

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The heading of Plaintiff’s brief refers to medical equivalence, however the body of
Plaintiff’s brief makes clear she refers instead to functional equivalence.
2

Social Security Rulings (SSR’s) “are binding on all components of the Social Security
Administration” and “represent precedent final opinions and orders and statements of policy and
interpretations” adopted by the agency. 20 C.F.R. § 402.35(b)(1). While SSR’s do not have the
force of law, they are an agency’s interpretation of its own regulations and “entitled to substantial
deference and will be upheld unless plainly erroneous or inconsistent with the regulation.” Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 498 (6th Cir. 2006).
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signs, and laboratory findings reported in the case record suggest that
a judgment of equivalence may be reasonable; or
When additional medical evidence is received that in the opinion of
the administrative law judge or the Appeals Council 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 Impairments.
SSR 96-6p, 1996 WL 374180, at *4 (July 2, 1996). Though not directly citing the above language,
Plaintiff has submitted additional evidence, and accordingly relies on the latter of the above two
circumstances. Indeed this is the approach the Sixth Circuit took in Kelly v. Comm’r of Soc. Sec,
314 F. App’x 827 (6th Cir. 2009) in a case where the plaintiff argued he was functionally equivalent
to the listings. In that case the court determined, under a SSR 06-6p analysis, that the new evidence
consisting of additional teacher reports was not very different from earlier reports and, accordingly,
would not have changed the ALJ’s conclusion. Id. at 830–31. A Subsequent Social Security Ruling,
however, demonstrates that this approach is not necessary where, as here, the opinion in question
concerns functional, not medical equivalence:
While SSR 96-6p requires that an ALJ or the [Appeals Council] must
obtain an updated medical expert opinion before making a decision
of disability based on medical equivalence, there is no such
requirement for decisions of disability based on functional
equivalence. Therefore, ALJs and the AC (when the AC makes a
decision) are not required to obtain updated medical expert opinions
when they determine that a child’s impairment(s) functionally equals
the listings.
SSR 09-1p, 2009 WL 396031, at *12 (Feb. 17, 2009) (effective March 19, 2009). As Plaintiff does
not argue the ALJ was required to obtain an updated opinion on medical equivalence, only
functional equivalence, this is exactly the situation contemplated above. The ruling makes patent
that an ALJ is not required to seek an updated opinion from an expert regarding functional

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equivalence. The Court concludes that SSR 09-1p is not plainly erroneous or inconsistent with the
regulations, and accordingly further concludes that Plaintiff’s claim must fail. See Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x at 498 (stating that an SSR will be upheld unless it is “plainly
erroneous or inconsistent with the regulation”); see also Edwards ex rel. L.T. v. Colvin, No. 12 C
7639, 2013 WL 3934228, at *5 (N.D. Ill. July 30, 2013).
Though the ALJ was not required to obtain an updated opinion, she nonetheless
discussed Plaintiff’s request for one, but determined that the new evidence offered by Plaintiff–a
disciplinary report stating C.F. was required to wear a harness after opening an emergency door on
a school bus, and a fire incident report documenting C.F.’s ignition of a fire at home–was “not much
out of character” with the other evidence. (PageID.50.) To the extent Plaintiff argues the ALJ erred
in characterizing this additional evidence, such does not compel a different outcome. Even if the
ALJ incorrectly characterized C.F.’s statements regarding the November 15, 2013, fire, it amounts
to only harmless error because the ALJ was not required to obtain an updated opinion to consider
the evidence in the first place.
2.

The ALJ Erred in Discussing the Domains of Functioning.
After concluding that Plaintiff did not meet or medically equal the severity of a listed

impairment, the ALJ next considered whether Plaintiff had an impairment or combination of
impairments that functionally equaled a listing. The ALJ began by summarizing the evidence in a
discussion spanning five pages. (PageID.45–50.) The ALJ concluded this discussion by considering
the interrogatory completed by Dr. Jeffrey Andert. (PageID.398–99.) . The ALJ discussed Dr.
Andert’s responses regarding the domains of functioning as follows:
Dr. Andert further opined that the claimant has a less than marked
impairment in his ability to acquire and use information, citing his
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average level of intelligence with no evidence of any learning
disability, and the teacher’s assertion of only mild impact of behavior
problems on his achievement.
Dr. Andert opined that the claimant has a less than marked
impairment in the area of attending to and completing tasks, citing
the noted benefits of his medication, adding that without medication,
he would have a marked limitation in this domain. Dr. Andert opined
a marked limitation in the domain of interacting and relating with
others. He cited the claimant’s demonstrations of aggressive and
disruptive behavior, along with his failure to comply with rules
despite medication.
Dr. Andert opined that the claimant has no limitation in his ability to
move about and manipulate objects. He also opined a less than
marked limitation in his ability to care for himself, citing his need for
prompts and reminders to perform self-help skills secondary to his
ADHD symptoms, as well as the teacher reports of his uncleanliness
at times. Finally, Dr. Andert opined a less than marked limitation in
health and physical well-being, citing the need for medication
adjustments.
(PageID.49.) The ALJ proceeded to separately discuss each of the six domains. (PageID.50–55.)
In each discussion, the ALJ laid out the relevant considerations for each domain as required by the
regulations and social security rulings. Each discussion ended with the ALJ noting that Plaintiff was
marked, less than marked, or had no limitation, and that the conclusion was either in accordance
with Dr. Andert’s opinion, or that there was no allegation or evidence to the contrary. Plaintiff
claims that the ALJ’s discussion of the functional domains was insufficient for meaningful judicial
review. (PageID.435.) The Court agrees.
When this case was brought to the ALJ by Plaintiff, the ALJ had the “overall
responsibility” for determining functional equivalence. 20 C.F.R. § 416.926a(n); SSR 09-1p, 2009
WL 396031, at *12. Here, the ALJ appeared to abdicate that responsibility in relying solely on the
expert’s opinion with no further accompanying analysis. In so doing, the ALJ failed to “provide an

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evidentiary basis for the very different criteria that apply to each of the various domains.” A.H. ex
rel. Williams v. Astrue, No. 09C6981, 2011 WL 1935830, at *11 (N.D. Ill. May 18, 2011). This is
not to say that the ALJ was in error to give weight to the expert’s opinion especially where — as
here — the opinion was uncontroverted. What is missing here is a discussion of the record and a
connection of the record to the ALJ’s conclusions, such that the Court might determine whether the
conclusion is supported by substantial evidence. The Commissioner notes that the Court may view
the ALJ’s discussion as a whole, however, “the ALJ’s decision still must say enough to allow the
appellate court to trace the path of [her] reasoning.” Stacey v. Comm’r of Soc. Sec., 451 F. App’x
517, 519 (6th Cir. 2011) (internal quotation marks omitted). “[W]hile the ALJ’s decision contains
an extensive recitation of the evidence in the record, [she] did not connect the dots as it relates to
the evidence [she] relied on to support [her] conclusions.” Sewell ex rel. HMC v. Comm’r of Soc.
Sec., No. 10-12520, 2011 WL 3566471, at *8 (E.D. Mich. July 20, 2011), report and
recommendation adopted Sewell v. Comm’r of Soc. Sec., No. 10-12520, 2011 WL 3566401 (E.D.
Mich. Aug. 12, 2011). On the record here, the Court is unable to trace the path of the ALJ’s
reasoning and so cannot conclude whether substantial evidence supports the ALJ’s conclusion.
Accordingly, this case must be remanded for a proper analysis of the functional domains.
3.

Remand is Appropriate.

While the Court finds that the ALJ’s decision fails to comply with the relevant legal
standards, Plaintiff can be awarded benefits only if “all essential factual issues have been resolved”
and “the record adequately establishes [his] entitlement to benefits.” Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also, Brooks v. Comm’r of Soc. Sec., 531 F.
App’x 636, 644 (6th Cir. 2013). This latter requirement is satisfied “where the proof of disability

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is overwhelming or where proof of disability is strong and evidence to the contrary is lacking.”
Faucher, 17 F.3d at 176; see also, Brooks, 531 F. App’x at 644. Evaluation of Plaintiff’s claim
requires the resolution of certain factual disputes which this Court is neither competent nor
authorized to undertake in the first instance. Moreover, there does not exist compelling evidence
that C.F. is disabled. Accordingly, this matter must be remanded for further administrative action.
CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is not supported by substantial evidence. Accordingly, the Commissioner’s decision is REVERSED
and this matter is REMANDED for further factual proceedings under sentence four of 42 U.S.C.
§ 405(g).

Dated: May 25, 2016

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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