Markus v. Commissioner of Social Security
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
o.b.o H.M., a Minor,
Case No. 1:15-cv-1174
HON. PAUL L. MALONEY
COMMISSIONER OF SOCIAL
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 great grandchild, H.M., is not entitled to Supplemental Security Income under Title
XVI of the Social Security Act.1 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 H.M. 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
Plaintiff is H.M.’s legal guardian. (PageID.66.)
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). The Commissioner is charged with finding the facts relevant to an application for
benefits, and her findings are conclusive if 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 the administrative decision maker considerable latitude, and indicates that a
decision supported by substantial evidence will not be reversed simply because the evidence
could have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at
Plaintiff’s great-grandchild, H.M., was born on February 8, 2001, and was thirteen-yearsold on the date of the ALJ’s decision. (PageID.55, 102.) On April 4, 2012, Plaintiff submitted
an application for disability benefits, asserting that H.M. had been disabled since February 8,
2011, due to bipolar disorder, mood disorder, and mild obesity. (PageID.102, 178–183.) This
application was denied on July 3, 2012, after which time Plaintiff requested a hearing before
an Administrative Law Judge (ALJ). (PageID.113–116, 119–121.) On February 12, 2014, ALJ
Romona Scales conducted an administrative hearing at which both Plaintiff and H.M.,
represented by counsel, testified. (PageID.61–100.) In a written decision dated April 25, 2014,
the ALJ determined that H.M. was not entitled to disability benefits. (PageID.41–56.) On
September 13, 2015, the Appeals Council declined to review the ALJ’s determination,
rendering it the Commissioner’s final decision in the matter. (PageID.35–38.) Plaintiff
subsequently initiated this appeal under 42 U.S.C. § 405(g).
Federal law provides that an “individual under the age of 18” will be considered
disabled if she “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
activity she 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
The ALJ made the following findings:
The claimant was born on February 8, 2001. Therefore, she was a school-age
child on April 4, 2012, the date applicaiton was filed, and is currently a schoolage child (20 CFR 416.926(a)(2)).
The claimant has not engaged in substantial gainful activity since April 4, 2012,
the application date (20 CFR 416.924(b) and 416.971 et seq.).
The claimant has the following severe ipmairments: bipolar disorderm NOS;
mood disorder, NOS; psychotic disorder, NOS; and obesity (20 CFR
The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of hte listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
Next, the ALJ was required to determine whether H.M. suffered from an impairment
that was the functional equivalent of a listed impairment. In doing so, the ALJ was required to
evaluate how H.M. functioned 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:
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 H.M. experienced no limitations in acquiring and using
information, moving about and manipulating objects, and caring for herself. She had less than
marked limitation in attending and completing tasks, interacting and relating with others, and
health and well being. (PageID.48–56.) Accordingly, the ALJ determined that H.M. was not
disabled as defined by the Social Security Act. (PageID.56.)
The only issue is whether substantial evidence supports the ALJ’s assessment of H.M.’s
functioning in five of the six domains.2 The Court is unable to conclude such here.
As noted above, the ALJ was required to evaluate H.M. under six functional domains.
Regulations from the Social Security Administration provide descriptions of each domain.
These “general descriptions of each domain . . . help [the Commissioner] decide whether you
have limitations in any given domain and whether these limitations are ‘marked’ or ‘extreme.’”
20 C.F.R. § 416.926a(f)(2).
Plaintiff does not challenge the ALJ’s determination that H.M. had a less than marked limitation in
the domain of health and physical well-being. (PageID.817–820.)
Several of these descriptions include separate discussions for children of different ages.
These descriptions “include examples of some activities typical of children in each age group
and some functional limitations that [the Commissioner] may consider. These examples also
help [the Commissioner] decide whether you have limitations in a domain because of your
impairment(s).” 20 C.F.R. § 416.926a(f)(3). The regulations provide the following age groups:
(1) newborns and young infants (birth to attainment of age 1); (2) older infants and toddlers
(age 1 to attainment of age 3); (3) Preschool children (age 3 to attainment of age 6); (4) schoolage children (age 6 to attainment of age 12); and (5) adolescents (age 12 to attainment of age
18). See, e.g., 20 C.F.R. 416.926a(g)(2). The reasons for differentiation are sound. See
Williams v. Apfel, 179 F.3d 1066, 1071 (7th Cir. 1999) (“[I]t is clear that for the SSI program
to run, children of different ages need to be assessed in different, and age-appropriate ways.”).
As a general rule, when determining if a claimant is currently disabled, “the claimant’s
age as of the time of the [ALJ’s] decision governs in applying the regulations.” Varley v. Sec.
of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987) (analyzing whether a person was
“of advanced age” as provided in the regulations).
While the ALJ correctly noted that H.M. was a school-age child on the date of the
application, the ALJ incorrectly noted that H.M. was currently a school-age child on the date
of the decision. (PageID.47.) In fact, H.M. was thirteen-years-old both at the hearing and on
the date of the ALJ’s decision, putting her squarely in the adolescent age group category. See
20 C.F.R. §§ 416.926a(g)(2)(v), (h)(2)(v), (i)(2)(v), (j)(2)(v), (k)(2)(v). Several records also relate
to the time when H.M. had already reached at least twelve years of age.
The consequence of this error renders the ALJ’s decision unsupported by substantial
evidence, and the Court must remand this action for further consideration.3 See, e.g., Kline
ex rel. J.H.-K. v. Colvin, 2014 WL 69953, at *15 (N.D. Ill. Jan. 9, 2014) (remanding a minor’s
case because “the ALJ erred by citing the preschooler standard, despite Claimant being seven
years old and a second grader at the time of the decision”); Leal v. Comm’r of Soc. Sec., 2012
WL 864458, at *4 (N.D. Ohio Mar. 13, 2012) (remanding an action under sentence four
because “[t]he ALJ incorrectly considered Plaintiff’s age at the time the application was filed,
rather than on the date of his decision”).
Throughout her decision, the ALJ cites the regulations for school-age children, but then
cites records from when H.M. was an adolescent to find her not to be disabled. For example,
in the acquiring and using information domain, the ALJ cites school records from January
2013 and current records from 2014, when H.M. was twelve- and thirteen-years-old and during
the period when the regulations defined H.M. as an adolescent.4 However, the relevant age
Plaintiff’s counsel failed to raise this argument. While the failure to raise an argument often constitutes
waiver, the Court will not overlook the ALJ’s application of the wrong standard in this case as a matter of law.
See, e.g., Igonia v. Califano, 568 F.2d 1383, 1387 (D.C. Cir. 1977) (“While a remand request is normally made
by a party, there is no reason why a court may not order the remand sua sponte [under sentence four]. . . . All
that the Act requires is ‘good cause shown,’ and we believe the patent conflict between the documents in
question in this case is sufficient good cause for a remand.”); Bohms v. Gardner, 381 F.2d 283, 286 (8th Cir.
1967) (collecting cases) (“The very language of § 205 provides the answer to the question of basic power, for
remand is specifically authorized, either on motion of the Secretary before answer or ‘at any time, on good
cause shown.’ And we cannot say that the district court’s remand was without good cause . . . when it felt that
an improper standard may have been applied by the hearing examiner.”), cert. denied, 390 U.S. 964 (1968).
With that said, Plaintiff’s counsel entitlement to attorney fees at this time may be impacted for failing to raise
This could have been of consequence to the ALJ’s determination. For example, suppose a twelve-yearold claimant can only maintain concentration for thirty minutes at time. The regulations for eleven-year-olds
classify the ability to maintain concentration for thirty minutes as a less-than-marked limitation; however, the
regulations for twelve-year-olds classify the ability to maintain concentration for thirty minutes or less to be a
marked limitation. The claimant, as evaluated in the wrong age category, would not have a sufficient limitation;
group descriptor describes typical adolescent activities in this domain:
(v) Adolescents (age 12 to attainment of age 18). In middle and high school, you
should continue to demonstrate what you have learned in academic 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
20 C.F.R. 416.926a(g)(2)
At this time, H.M. was attending a truancy academy and later a home school program,
where she stated she could proceed at her “own pace and discretion.” (PageID.67, 386.) It
does not appear that the ALJ compared these activities to those typical of an adolescent.
Moreover, the ALJ noted that H.M. was not in special education (PageID.51), but Social
Security rulings define “remedial or compensatory teaching methods for academic subjects,
or placement in a self-contained classroom” as special education services. SSR 09–3p, 2009
WL 396025, at *3 (S.S.A. Feb. 17, 2009).5 It does not appear that the ALJ considered the
unique circumstances of H.M.’s education in this domain and furthermore did not consider
these circumstances against the proper typical activities of an adolescent.
however, the claimant properly evaluated would have had a sufficient limitation in this hypothetical.
Social Security Rulings (SSRs) “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 SSRs 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
Similarly, elsewhere in her decision the ALJ relies on records and hearing testimony
regarding the period when H.M. was an adolescent, but cites to those activities typical of a
younger, school-age child. True, the ALJ also cited descriptions from the SSR that provide
examples which do not apply to a particular age group, but the Court finds this does not cure
the ALJ’s error here. It remains patent the ALJ mistakenly believed H.M. was a school-age
child through the date of the decision, and it is equally clear that in arriving at her decision the
ALJ relied, at least in part, on comparing H.M.’s adolescent activities to those typical of a
younger, school-age individual. This mistake leaves the Court unable to trace the path of the
ALJ’s reasoning. See Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
Plaintiff asks for an award of benefits. (PageID.821.) 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 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.
This case is being remanded because the ALJ erroneously believed H.M. was at all
relevant times a school-age child, not because there is compelling evidence that H.M. is
disabled. On remand, the ALJ must evaluate H.M.’s abilities and the factual record in the each
age category, including the “adolescent” category, as appropriate.
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 proceedings under sentence four
of 42 U.S.C. § 405(g).
Dated: September 22, 2016
/s/Paul L. Maloney
PAUL L. MALONEY
United States District Judge
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