Bradley v. Commissioner of Social Security

Filing 27

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ETHEL BRADLEY,
o.b.o J.M.G., a Minor,
Plaintiff,

Case No. 1:16-CV-223

v.
HON. ROBERT J. JONKER
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 finding
Plaintiff was no longer entitled to disability benefits. 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 J.M.G., the minor
claimant, is no longer disabled within the meaning of the Act.
STANDARD OF REVIEW
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
J.M.G. was twelve years of age on the date of the administrative law judge’s (ALJ)
decision. (PageID.54, 144.) Plaintiff first applied for Supplemental Security Income benefits on
October 5, 2005. (PageID.261–264.) Finding J.M.G. was disabled due to speech and language
deficits, this application was granted in a decision dated March 1, 2007, with an onset date of
September 1, 2005. (PageID.57, 60.) A subsequent review determined that J.M.G. had experienced
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an improvement in his condition. (PageID.144–145). Accordingly, J.M.G.’s disability was deemed
to have ended as of June 22, 2012. (PageID.144). Plaintiff thereafter requested an administrative
hearing, and on February 18, 2015, appeared at a hearing during which time both Plaintiff and
J.M.G. testified. (PageID.82–130.) On March 24, 2015, ALJ Michael Condon issued his decision
finding that Plaintiff was no longer disabled. (PageID.54–82.) On January 13, 2016, the Appeals
Council denied review, making it the Commissioner’s final decision. (PageID.31–33.) This action
followed.
ALJ’S DECISION
Federal law obligates the Commissioner to periodically review whether a disabled
child continues to be eligible for disability benefits. See 42 U.S.C. § 1382c(a)(3)(H)(ii)(I). The
Social Security regulations articulate a three-step sequential process by which determinations of
continuing disability are made. See 20 C.F.R. § 416.994(a). The first step is to determine whether
the child has experienced medical improvement1 “in the impairment(s) [he] had at the time of [the]
most recent favorable determination or decision.” 20 C.F.R. § 416.994(b)(1); Tubbs v. Comm’r of
Soc. Sec., No. 1:11-cv-1046, 2013 WL 1305290, at *2 (W.D. Mich., Mar. 28, 2013). If the child has
not experienced any medical improvement, his disability will be deemed to continue unless an
exception to the medical improvement rule applies.2 20 C.F.R. § 416.994(b)(1); Tubbs, 2013 WL
1305290, at *2–3.
If the child has experienced medical improvement, it must then be determined
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Medical improvement is defined as “any decrease in the medical severity of your impairment(s) which was
present at the time of the most recent favorable decision that you were disabled or continued to be disabled.” 20 C.F.R.
§ 416.994a(c).
2

These particular exceptions articulate circumstances in which a claimant’s disability will be deemed to have
terminated despite the absence of medical improvement. See 20 C.F.R. § 416.994a(e)-(f).

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whether “the impairment(s) that [the Commissioner] considered at the time of [her] most recent
favorable determination or decision still meets or equals the severity of the listed impairment it met
or equaled at that time.” 20 C.F.R. § 416.994a(b)(2); Tubbs, 2013 WL 1305290, at *3. If the
impairment(s) continues to meet or equal in severity the listed impairment in question, the claimant’s
disability will continue. Otherwise, the analysis proceeds to step three. 20 C.F.R. § 416.994a(b)(2);
Tubbs, 2013 WL 1305290, at *3.
At step three, the Commissioner must determine whether the claimant is currently
disabled pursuant to the rules for determining disability for children. 20 C.F.R. § 416.994a(b)(3);
Tubbs, 2013 WL 1305290, at *3. A child is considered disabled if he suffers from a severe
impairment or combination of impairments which meet, medically equal, or functionally equal an
impairment identified in the Listing of Impairments. 20 C.F.R. § 416.994a(b)(3); Tubbs, 2013 WL
1305290, at *3.
Furthermore, when the Commissioner evaluates whether a claimant continues to
qualify for benefits, the claimant is not entitled to a presumption of continuing disability. See Cutlip
v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Rather, the decision whether
to terminate benefits must “be made on the basis of the weight of the evidence and on a neutral basis
with regard to the individual's condition.” Id. Nevertheless, the burden of proof to establish that a
claimant has experienced a medical improvement which supports a termination of benefits lies with
the Commissioner. See, e.g., Kennedy v. Astrue, 247 F. App’x 761, 764–65 (6th Cir., Sept. 7, 2007);
Couch v. Comm’r of Soc. Sec., 2012 WL 394878 at *10 (S.D. Ohio, Feb. 7, 2012).
The ALJ observed that the most recent favorable determination finding that J.M.G.
was disabled was the determination dated February 14, 2006. (PageID.60.) The ALJ further
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observed that as of this date, J.M.G. was found to suffer from a speech and language impairment
which were found to functionally equal the listings. Specifically, J.M.G. had an extreme limitation
in the domain of acquiring and using information. (PageID.60–61.) With respect to the subsequent
termination of benefits, the ALJ found as follows:
The undersigned finds that the claimant’s language issues are mild at
this time and show evidence of improvement. On May 23, 2012, the
claimant underwent a speech and language disability evaluation, and
the results show improvement since the CPD. His Core Language
yielded a low Average standard score of 91, which is a 27-percentile
ranking. Receptive Language yielded a below-Average standard
score of 81, which is a 10-percentile ranking. Expressive Language
yielded an Average standard score of 90, which is a 39-percentile
ranking. Language Memory yielded an Average standard score of 94,
which is a 34-percentile ranking. Pragmatic language was functional
for testing although mildly impulsive behavior was observed. His
word level articulation yielded a Low Average standard Score of 86,
which is a 7-percentile ranking. Stimulability for correct production
of errored phonemes in isolation was 100 percent. Voice production
and verbal fluency were both in the normal range. A rapid speech
rate and reduced articulation precision were noted during connected
speech. Conversational intelligibility with all listeners was 90 percent
with known context and 80 percent with unknown context.
Repetition improved intelligibility by 10 percent to 20 percent
(Ex. 5F). The claimant’s speech and language pathologist noted that
the claimant last received speech and language services in 2006. She
reported that the claimant had no speech or language problem that has
ever been brought to her attention (Ex. 4F).
On June 1, 2012, the claimant[’s] second grade teacher completed a
Teacher Questionnaire regarding her observations of the claimant’s
functioning. In all of the functional domains, she reported that the
claimant had no problems. She noted that almost all of the claimant’s
speech was understandable on the first attempt regardless of whether
the topic was known or unknown. The teacher noted that she had no
academic or behavioral issues with the claimant and that he is one of
the top readers in her class. She reported that the claimant was very
smart, very well behaved, very respectful, honest, and a “great kid”
(Ex. 9E/13). On September 23, 2013, the school social worker
completed a Teacher Questionnaire. Although she described other
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limitations that will be addressed below, her observations show an
improvement in the speech impairment. She described no limitations
in Acquiring and Using Information and that almost all of the
claimant’s speech was understandable on the first attempt regardless
of whether the topic was known or unknown (Ex. 17E).
The Language impairments noted in the CPD are from 2006, and
there has been an obvious improvement since that time. Language
and speech delays were the primary reason for the initial disability
finding. Those have obviously improved significantly to the point
that now, as a much older child, he is communicating very well and
very clearly and did so at the hearing.
(PageID.61.)
The ALJ continued his analysis by further determining that:
1.

Since June 22, 2012, the impairments that the claimant had at the time of the
CPD have not functionally equaled the Listings of Impairments;

2.

Since June 22, 2012, the claimant has had the following severe impairments:
attention deficit hyperactivity disorder (ADHD); overanxious disorder of
childhood; and reactive attachment disorder of early childhood; and

3.

Since June 22, 2012, the claimant has not had an impairment or combination
of impairments that meets or medically equals one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and
416.926).

(PageID.62–68.)
Next, the ALJ was required to determine whether J.M.G. suffered from an impairment
that was the functional equivalent of a listed impairment. In doing so, the ALJ was required to
evaluate how J.M.G. 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

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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 since June 22, 2012, J.M.G. experienced “less

than marked” limitations in acquiring and using information, attending and completing tasks, and
interacting and relating to others. (PageID.72–73.) J.M.G. further had no limitations in the areas
of moving about and manipulating objects, caring for himself, and in health and physical well-being.
(PageID.74.)

Accordingly, the ALJ determined that J.M.G. did not functionally equal a listed

impairment and, having completed the analysis, entered a decision finding that J.M.G.’s disability
ended as of June 22, 2012. (PageID.74.)
DISCUSSION
1.

The ALJ’s Credibility Determination is Supported by Substantial
Evidence.

At the administrative hearing, Plaintiff testified that although J.M.G. was no longer
receiving treatment for his speech and language deficits, he was currently being treated for anger
issues. (PageID.90.) She stated that J.M.G. cried a lot, ate his fingernails, and had a nervous
condition manifested by consistent shaking of his legs. (PageID.88.) At home he was angry, talked
back, and ran through the house. (PageID.94.) He ran into walls and laughed to himself.
(PageID.103.) J.M.G. testified that he had two worlds: a sane world and an insane world.
(PageID.108.) He was able to switch from one world to the other and generally stayed in the sane
world at school. (PageID.108.) In the insane world he runs around, runs into walls, cries, laughs,

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and talks to himself. (PageID.108.) He hears voices, and sometimes loses control. He has difficulty
remembering things. (PageID.111, 122.) After summarizing the testimony, the ALJ found these
allegations were not credible. (PageID.69.) Plaintiff claims the ALJ erred in doing so.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). As the relevant Social
Security regulations make clear, however, a claimant’s “statements about [his] pain or other
symptoms will not alone establish that [he is] disabled.” 20 C.F.R. § 416.929(a); see also Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)); Hash
v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009). Instead, a claimant’s assertions of
disabling pain and limitation are evaluated under the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, “subjective complaints may support a finding of disability only where
objective medical evidence confirms the severity of the alleged symptoms.” Id. (citing Blankenship
v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)). However, where the objective medical evidence
fails to confirm the severity of a claimant’s subjective allegations, the ALJ “has the power and
discretion to weigh all of the evidence and to resolve the significant conflicts in the administrative
record.” Id. (citing Walters, 127 F.3d at 531).
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In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Id. (citing Walters, 127 F.3d at 531); see also Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v. Richardson, 471 F.2d
1265, 1267 (6th Cir. 1972) (“[i]t [i]s for the [Commissioner] and his examiner, as the fact-finders,
to pass upon the credibility of the witnesses and weigh and evaluate their testimony”). It is not for
this Court to reevaluate such evidence anew, and so long as the ALJ’s determination is supported
by substantial evidence, it must stand. The ALJ found Plaintiff’s subjective allegations to not be fully
credible, a finding that should not be lightly disregarded. See Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth Circuit has stated, “[w]e have held
that an administrative law judge’s credibility findings are virtually unchallengeable.” Ritchie v.
Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation omitted).
Plaintiff’s only challenge to this determination is that after stating he found the
testimony not to be credible, the ALJ failed to articulate the reasons behind his determination.
(PageID.827–829.) While the Court agrees the ALJ could have better identified his credibility
analysis, the ALJ’s analysis is sufficiently clear for meaningful review. Indeed, the ALJ examined
in great detail the evidence in this matter when making his credibility determination.
(PageID.69–71). This determination is supported by substantial evidence. For example, in an
assessment finding Plaintiff no longer was eligible for special education, a social worker noted that
J.M.G. “no longer meets the eligibility requirement to receive special education programs and
services . . . in the social emotional area. [He] interacts with peers, follows teacher directives, and
no longer displays the temper tantrums he was having. He is an active participant in the classroom.”
(PageID.470.) It was noted that J.M.G. liked to help at home, had a sense of humor, participates,

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and liked the computer.

(PageID.468.)

Ms. Bradley also indicated she had no concerns.

(PageID.467.) At a May 22, 2012, examination with Dr. Glen Peterson, a state examiner, it was
noted that J.M.G. rocked back and forth through most of the session. (PageID.512.) However,
during the examination, J.V.M was friendly and polite. He was able to recite the month and year,
and knew the days of the week. He could repeat six digits forward and three digits backward.
(PageID.514.) There was no evidence of delusions or persecutory trends. (PageID.514.) He had
well organized thought processes, no evidence of any unusual or abnormal perceptual events, was
able to count backwards from ten, and recite every other letter of the alphabet. (PageID.515.) He
appeared to be “a fairly happy boy, relatively free of emotional problems.” (PageID.515.)
Consultative examiner Dr. Wayne Kinzie’s October 9, 2013, mental status exam was generally
similar. (PageID.541–542.) The ALJ also noted that in his daily activities, J.M.G. “understood
simple jokes, cares for [himself] and belongings, likely to print and draw, plays video games, rides
[a] two wheel bicycle, runs around house, and has a couple of really close friends.” (PageID.71.)
In sum, the ALJ’s credibility determination complies with the relevant legal standard and is
supported by substantial evidence. Accordingly, this argument is rejected.
2.

The ALJ Was Not Required to Obtain a Subsequent Consultative
Examination.

At the administrative hearing, Plaintiff’s counsel asked J.M.G. whether he ever heard
someone else talking who was not there, a “fake” person. J.M.G. answered in the affirmative.
(PageID.111.) He stated he hears them a couple times a month. (PageID.112.) The voices were a
part of why he would run into walls. (PageID.112) He had not told a doctor about it, however,
because he was “fine” when in public. (PageID.111.) At the conclusion of the hearing, Plaintiff’s
counsel asked for an updated consultative examination for further evaluation of this condition.
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(PageID.128.) It is undisputed that the ALJ did not order another examination. Plaintiff argues the
ALJ abused his discretion in doing so.
As Plaintiff acknowledges, an ALJ has the discretion to order a claimant to undergo
an additional consultative examination. The regulations clearly state that if there is insufficient
evidence to determine if a claimant is disabled, then the ALJ “may ask you [the claimant] to undergo
a consultative examination.” 20 C.F.R. § 404.1520b(c)(1), (3). Here, the ALJ did not abuse his
discretion by deciding that there was sufficient evidence of record upon which to make his
determination, thereby making it unnecessary to require J.M.G. to undergo additional testing. See
Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (noting the ALJ has discretion to decide whether
additional medical evidence is needed and will be paid for at the government’s expense).
Plaintiff claims “the record was devoid of analysis” of J.M.G.’s hallucinations.
(PageID.831.) It is surprising that Plaintiff would make this claim, however, as Plaintiff admits on
the preceding page that Ms. Bradley told Dr. Kinzie about her concerns that J.V.M was seeing and
hearing things that were not there. (PageID.830.) The doctor noted that Plaintiff “reports abnormal
perceptual experiences, as noted above, that is auditory experiences which seem on the surface to
be hallucinatory in nature. However, at this age, that is difficult to clearly determine. There were
no observations of any such experiences during my evaluation with him.” (PageID.542.) Thus the
record is not, as Plaintiff claims, “devoid of analysis” on this point. The ALJ thoroughly discussed
this report, including the discussion of hallucinations, but correctly noted that there was
“uncertainty” about this disorder. (PageID.72.) The ALJ gave “significant weight” to this opinion
and Plaintiff does not argue the ALJ could not rely on it. (PageID.72.) As a result, the ALJ did not
abuse his discretion in deciding he had sufficient evidence to make his determination.

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CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is supported by substantial evidence. Accordingly, the Commissioner’s decision is AFFIRMED.
The Court further determines that appeal of this matter would not be taken in good
faith. See Smith v. Comm’r of Soc. Sec., 1999 WL 1336109, at *2 (6th Cir. 1999); Leal v. Comm’r
of Soc. Sec., No. 3:14 CV 285, 2015 WL 731311, at *2 (N.D. Ohio Feb. 19, 2015).
A separate judgment shall issue.

Dated:

December 21, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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