Johnson v. Commissioner of Social Security Administration

Filing 22

Memorandum Opinion and Order: The Court AFFIRMS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 2/10/2015. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NICHELLE JOHNSON, on behalf of
JAVJ,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:14-cv-00141

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MEMORANDUM OPINION & ORDER

MAGISTRATE JUDGE
KATHLEEN B. BURKE

Plaintiff, Nichelle Johnson (“Plaintiff”) on behalf of her son, JAVJ, a minor,
(“Claimant”), seeks judicial review of the final decision of the Defendant, Commissioner of
Social Security (“Commissioner”), denying Claimant’s application for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (The
“Act”). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before
the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 16.
For the reasons set forth below, the Commissioner’s decision is AFFIRMED.
I. Procedural History
On or about May 5, 2010, Claimant’s mother filed an application for SSI on behalf of
Claimant. Tr. 28, 51, 135-139, 148. Plaintiff alleged that Claimant was disabled based on liver
problems, sickle cell anemia, hepatitis C, and ADD. Tr. 29, 38, 71, 81, 161. Plaintiff alleged
that Claimant’s disability onset date was January 1, 2004. 1 Tr. 29, 38, 51, 148, 161. The claim
was denied initially (Tr. 71-77) and upon reconsideration (Tr. 81-87).

1

A hearing was requested

During the hearing, Plaintiff amended the alleged disability onset date to May 5, 2010, the date of the application.
Tr. 12.
1

(Tr. 88-90) and, on July 24, 2012, a hearing was held before Administrative Law Judge Lovert F.
Bassett (the “ALJ”) (Tr. 10-27). In his October 17, 2012, decision, the ALJ determined that
Claimant had not been under a disability since May 5, 2010, the date the application was filed.
Tr. 48-68. Plaintiff requested review of the ALJ’s decision by the Appeals Council. Tr. 8-9. On
December 3, 2013, the Appeals Council denied review, making the ALJ’s decision the final
decision of the Commissioner. Tr. 1-5.
II. Evidence
A.

Personal and Educational Evidence
Claimant was born in 2000. Tr. 135, 148. At the time of the hearing, Claimant was on

summer break. Tr. 13. He had just finished summer school for math, language arts, and English.
Tr. 13. Once school resumed, he would be entering the seventh grade. Tr. 13. Claimant has
never been held back in classes but he has had to take summer school for the past three years in
order to advance to the next grade. Tr. 13. Claimant has lived with his mother since his birth.
Tr. 12-13.
B.

Testimonial Evidence
1.

Plaintiff’s testimony

Plaintiff was represented by counsel and testified at the hearing. Tr. 12-15, 15-17.
Plaintiff stated that Claimant is a good kid but it is hard for him to sit still and follow directions.
Tr. 14. Claimant is forgetful and has to be reminded to do things. Tr. 14. When Claimant is
feeling well, he likes bouncing off the couch, playing video games and watching television. Tr.
14. He does not always feel well because he is highly fatigued and has no energy. Tr. 14. He
gets fevers and complains of belly pain. Tr. 14. Because of health related issues, Claimant
missed approximately 10-12 days of school during the prior school year. Tr. 15.

2

2.

Medical expert testimony

Dr. Milford Schwartz, M.D., a pediatrician, testified as a medical expert (“ME”) during
the hearing. Tr. 15-24, 123-124, 126. The ME indicated that Claimant had the following
severe impairments: chronic hepatitis C, factor IX deficiency, 2 and attention deficit hyperactivity
disorder. Tr. 17. He indicated that, based on the information that he had, he was able to
conclude that Claimant had a marked limitation in domain number six (health and physical wellbeing). Tr. 19. He also indicated that domains one and two (acquiring and using information
and attending and completing tasks) might be at issue in the case but, without additional
information, he was unable to offer an opinion as to the extent of Claimant’s limitations, if any,
in those domains. Tr. 17-19. In particular, the ME felt it was important to obtain an updated
teacher questionnaire because the teacher questionnaire in the file was 2 years old. Tr. 18-19.
Additionally, at the time the 2010 questionnaire was completed, Claimant had recently started
medication for his attention deficit disorder. Tr. 18-19, 24-25. Therefore, the ME was uncertain
as to whether the teacher was reporting how the Claimant was doing at the time she completed
the questionnaire or whether she was reporting how he had been doing for the prior few months
and/or whether the questionnaire reflected optimal medication effects since the Claimant had
only recently started his medication. Tr. 18-19, 24-25.
As a result of the foregoing, Claimant’s counsel agreed to work on getting an updated
teacher questionnaire and, because it was the summertime, the ALJ granted Claimant’s counsel
60, rather than the customary 30, days in which to submit the additional evidence. Tr. 19-20, 2526.

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The ME explained that factor IX deficiency is a clotting disorder in the hemophilia family. Tr. 17.

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C.

Medical evidence
Claimant was exposed to drugs and alcohol in utero. Tr. 324, 453. He has hepatitis C

and sickle-cell trait. Tr. 319, 363, 421, 424, 450. He contracted hepatitis C at birth. Tr. 363. He
also has factor IX deficiency. Tr. 363, 427. Claimant has had multiple liver biopsies. Tr. 363.
He has had problems gaining weight. Tr. 431. He also has attention deficit hyperactivity
disorder. Tr. 328, 458.
Dr. Rachel B. Tangen, Ph.D., ABPP-CN, of Rainbow Babies & Children Hospital,
completed two neuropsychological evaluations. Tr. 324-335, 453-464. The first evaluation was
completed at the end of 2009 and the beginning of 2010 following reports from Claimant’s
mother that she was concerned about Claimant’s inattention, impulsiveness, forgetfulness,
hyperactivity, and a decline in his school grades. (“2009 evaluation) Tr. 324-335. The
evaluation was conducted in order to assess Claimant’s cognitive, academic, and behavioral
functioning. Tr. 324-335. Two years later, in April 2012, Claimant was referred again to Dr.
Tangen for a neuropsychological re-evaluation to reassess Claimant’s cognitive problems related
to his early medical history. (“2012 evaluation”). 3 453-464.
2009 evaluation
Based on her evaluation, Dr. Tangen diagnosed Claimant with: cognitive disorder, not
otherwise specified (due to medical condition); executive function deficits (working memory,
sustained attention, impulse control, planning, cognitive flexibility); fine motor and visual motor
deficits; visual memory deficits; attention deficit hyperactivity disorder, combined type. Tr. 328.
With respect to Claimant’s attention/executive functions, Dr. Tangen concluded that overall
3

It appears that Plaintiff submitted the 2012 evaluation to the Social Security Administration, Office of Disability
Adjudication and Review, on August 3, 2012, after the July 24, 2012, hearing but prior to the ALJ’s October 17,
2012, decision. Tr. 252, 263-274 (Exhibit 18E). The 2012 evaluation is also located in the record at Tr. 453-464
(Exhibit 20F).

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Claimant showed significant deficits in attention and executive function skills. Tr. 327. As part
of the summary portion of her opinion, Dr. Tangen stated:
[Claimant] has a history of in utero exposure to drugs and alcohol and he
generally has better developed language based than visual/nonverbal based skills.
He demonstrated significant problems with nonverbal reasoning, visual-spatial
perception, visual motor integration, fine motor dexterity, visual memory
attention, and executive functions.
Tr. 328.
2012 evaluation
In her 2012 evaluation, Dr. Tangen noted that, since his 2009 evaluation, Claimant had
started taking Concerta, which had been prescribed by his pediatrician. Tr. 453; see also Tr. 382
(March 2010 office visit note indicating that Claimant was going to begin a trial of Concerta).
Based on her 2012 re-evaluation, Dr. Tangen diagnosed Claimant with: attention deficit
hyperactivity disorder, combined type; cognitive disorder, NOS (due to medical history);
executive function deficits (working memory, sustained attention, impulse control, planning,
cognitive flexibility); and mild motor and visual memory deficits. Tr. 458. With respect to
Claimant’s attention/executive functions, Dr. Tangen concluded that:
[Claimant’s] sustained attention remained impaired on a computerized task. He
was impulsive and showed variable responsiveness over time, indicating poor
vigilance. He was also administered selected subtests from the Delis Kaplan
Executive Function System and to assess attention and executive function. He
demonstrated improved performance, but he still had some mild areas of
weakness. His verbal fluency improved from the low average to average range.
His focused attention, sequencing, and switching attention improved to the
average range. His ability to find the final solution to a problem solving task was
[sic] remained in the average range, but his planning remained below average for
his age. [Claimant’s] mother completed the BRIEF and reported significant
problems with shifting attention, initiating tasks, working memory, planning, and
organization in daily life. Overall, [Claimant] has shown significant improvement
in several areas of executive functioning, but he continues to demonstrate deficits
in sustaining attention, impulsivity, and planning.
Tr. 456. As part of the summary portion of her opinion, Dr. Tangen stated:

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[Claimant] has significant improvement in cognitive functioning since he began
taking stimulant medication (Concerta), indicating that attention was playing a
large part in his initial poor performance. He continues to demonstrate mild
problems with attention, executive functions, visual memory, visual motor
integration, and fine motor speed.
Tr. 458.
D.

Educational records
In December 2009, while Claimant was in the fourth grade, school psychologist Michelle

Woody observed and evaluated Claimant’s behavior. Tr. 309-312. Claimant’s mother reported
that the transition from third to fourth grade had been hard for Claimant. Tr. 309. Claimant’s
fourth grade teachers reported that Claimant acted and reacted impulsively. Tr. 309. Based on
Ms. Woody’s observations, she made several classroom intervention suggestions, including
preferential seating near his teacher to help prevent off task behavior; placing Claimant on a
behavior contract; Claimant should try to wait until a question is asked before raising his hand;
reinforcement of the importance of checking/editing work before turning it in; and more practice
in being prepared and organized for class. Tr. 311-312.
On May 25, 2010, Claimant’s homeroom teacher, Bonita Bohn, who taught Claimant
spelling and religion, completed a Social Security Administration Teacher Questionnaire. Tr.
346-353. She rated Claimant’s abilities in the six domains of: (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 himself; and (6) health and physical wellbeing. Tr. 347-352. With respect to the attending and completing tasks domain, Ms. Bohn rated
Claimant in 13 categories. 4 Tr. 348. In one category – sustaining attention during play/sports
activities – Ms. Bohn rated Claimant as having no problem. Tr. 348. She rated Claimant as

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The five ratings were: (1) no problem; (2) a slight problem; (3) an obvious problem; (4) a serious problem; and (5) a
very serious problem. Tr. 348.
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having a slight problem in 2 categories – (1) paying attention when spoken to directly; and (2)
carrying out single-step instructions. Tr. 348. She rated Claimant as having an obvious problem
in 2 categories – (1) focusing long enough to finish assigned activity or task; and (2) refocusing to
task when necessary. Tr. 348. She rated Claimant as having a serious problem in 6 categories –
(1) carrying out multi-step instructions; (2) waiting to take turns; (3) changing from one activity
to another without being disruptive; (4) completing class/homework assignments; (5) completing
work accurately without careless mistakes; and (6) working at reasonable pace/finishing on time.
Tr. 348. She rated Claimant as having a very serious problem in 2 categories – (1) organizing
own things or school materials; and (2) working without distracting self or others. Tr. 348. Also,
with respect to the attending and completing tasks domain, Ms. Bohn noted that Claimant “needs
constant cues to remain on task and reminders to stay in his seat and not walk around the room
disturbing others.” Tr. 348.
On May 22, 2012, Claimant’s religion, math, science and social studies teacher, D’arcy A.
Zeigler, completed a Social Security Administration Teacher Questionnaire wherein she also rated
Claimant’s abilities in the six domains.5 Tr. 253-260. In the 13 attending and completing tasks
categories, Ms. Zeigler found no category in which Claimant exhibited a very serious or a serious
problem. Tr. 255. She rated Claimant as having an obvious problem in 3 categories – (1)
changing from one activity to another without being disruptive; (2) organizing own things or
school materials; and (3) completing work accurately, without careless mistakes. Tr. 255. She
rated Claimant as having a slight problem in 5 categories – (1) focusing long enough to finish
assigned activity or task; (2) refocusing to task when necessary; (3) carrying out multi-step
instructions; (4) waiting to take turns; (5) working without distracting self or others. Tr. 255. She
5

It appears that Plaintiff submitted Ms. Zeigler’s May 22, 2012, to the Social Security Administration, Office of
Disability Adjudication and Review, on August 3, 2012, after the July 24, 2012, but prior to the ALJ’s October 17,
2012, decision. Tr. 252.
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rated Claimant as having no problem in 5 categories – (1) paying attention when spoken to
directly; (2) sustaining attention during play/sports activities; (3) carrying out single-step
instructions; (4) completing class/homework assignments; and (5) working at reasonable
pace/finishing on time. Tr. 255.
III. Standard for Disability
The standard for evaluating a child’s disability claim differs from that used for an adult.
42 U.S.C. § 1382c(a)(3)(C); see also Miller ex rel. Devine v. Comm'r of Soc. Sec., 37 Fed. Appx.
146, 147-148 (6th Cir. 2002). A child is considered disabled if he has a “medically determinable
physical or mental impairment that results in marked and severe functional limitations and can be
expected to result in death or has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C).
To determine whether a child is disabled, the regulations prescribe a three-step sequential
evaluation process. 20 C.F.R. § 416.924(a). At Step One, a child must not be engaged in
“substantial gainful activity.” 20 C.F.R. § 416.924(b). At Step Two, a child must suffer from a
“severe impairment.” 20 C.F.R. § 416.924(c). At Step Three, disability will be found if a child
has an impairment, or combination of impairments, that meets, medically equals or functionally
equals an impairment listed in 20 C.F.R. § 404, Subpt. P, App. 1; 20 C.F.R. § 416.924(d). 6
At Step Three, to determine whether a child’s impairment functionally equals the Listings,
the Commissioner will assess the functional limitations caused by the impairment. 20 C.F.R. §
416.926a(a). The Commissioner will consider how a child functions in the following six
domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting
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The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience.

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and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and
(6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). If a child’s impairment
results in “marked” limitations 7 in two domains, or an “extreme” limitation 8 in one domain, the
impairment functionally equals the listings and the child will be found disabled. 20 C.F.R. §
416.926a(d).
IV. The ALJ’s Decision
In his October 17, 2012, decision, the ALJ made the following findings: 9
1.

Claimant was born in 2000. He was a preschooler 10 on May 5,
2010, the date the application was filed, and was a school-age
child 11 at the time of the decision. Tr. 54.

2.

Claimant has not engaged in substantial gainful activity since May
5, 2010, the application date. Tr. 54.

3.

Claimant has the following severe impairments: hepatitis C
infection and attention deficit disorder. Tr. 54.

4.

Claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments. Tr. 54.

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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)(i). A “marked” limitation is “more than moderate” but “less than
extreme.” Id. “It is the equivalent of the functioning we would expect to find on standardized testing with scores that
are at least two, but less than three, standard deviations below the mean.” Id.

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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)(i). An “extreme” limitation means “more than marked.”
Id. “It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at
least three standard deviations below the mean.” Id.
9

The ALJ’s findings are summarized herein.

10

“Preschool children” include children who are age 3 to attainment of age 6. See 20 C.F.R. § 416.926a(g)(2)(iii).
Claimant was actually 9 years of age as of May 5, 2010, the date the application was filed. Thus, the ALJ may have
been referring to Claimant’s status as of the alleged disability onset date, i.e., January 1, 2004. In any event, Plaintiff
has not raised an issue with respect to this finding.

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“School-age children” include children who are age 6 to attainment of age 12. See 20 C.F.R. § 416.926a(g)(2)(iv).

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5.

Claimant does not have an impairment or combination of
impairments that functionally equals the severity of the listings.
Tr. 54-62. Claimant has a marked limitation in only one domain,
health and physical well-being (Tr. 62) and less than marked
limitation or no limitation in the other five domains (Tr. 54-61).

Based on the foregoing, the ALJ determined that Claimant had not been under a disability
since May 5, 2010, the date the application was filed. Tr. 62.
V. Parties’ Arguments
Plaintiff argues that, in addition to finding a marked impairment in the domain of health
and physical well-being, the ALJ should have found a second marked impairment in the attending
and completing tasks domain. Doc. 18, pp. 6-8, Doc. 21. Plaintiff argues that, when finding less
than marked impairment in the domain of attending and completing tasks, the ALJ improperly
relied entirely upon Dr. Tangen’s April 2012 neuropsychological evaluation and failed to fully
articulate his rationale for not finding a marked limitation in that domain. Doc. 18, pp. 6-8, Doc.
21. Plaintiff also adds that, because the ME stated that he needed more information in order to
provide an opinion regarding functional equivalency, the ALJ erred by not sending the records
submitted after the hearing to the ME or, alternatively, scheduling a supplemental hearing. Doc.
18, p. 8. Plaintiff also argues that the ALJ erred in evaluating the credibility of her statements
regarding her son’s impairments and the extent of his limitations. Doc. 18, pp. 8-10.
In response, the Commissioner argues that the ALJ properly relied upon Dr. Tangen’s
April 2012 evaluation and that the ALJ’s finding of less than marked limitations in the attending
and completing tasks domain was supported by substantial evidence. Doc. 20, pp. 6-8. With
respect to Plaintiff’s contention that the ALJ should have sent additional information to the ME or
should have scheduled a supplemental hearing, the Commissioner argues that an ALJ has
discretion to determine whether ME testimony is necessary and, in this case, the ALJ had

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sufficient information upon which to make his determination. Doc. 20, p. 8. The Commissioner
also argues that the ALJ considered Plaintiff’s testimony and reasonably evaluated the credibility
of her testimony. Doc. 20, pp. 8-10.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
A court “may not try the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987). An “ALJ’s failure
to follow agency rules and regulations denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.” Cole, 661 F.3d 931, 939-940
(6th Cir. 2011) (citing Blakely v. Comm’r of Soc Sec, 581 F.3d 399, 407 (6th Cir. 2009) (internal
quotations omitted)).
A.

The ALJ’s finding of less than marked limitation in the domain of attending and
completing tasks is supported by substantial evidence
Plaintiff challenges that ALJ’s finding of less than marked limitation in the attending and

completing tasks domain. Doc. 18, pp. 6-8, Doc. 21. Plaintiff argues that, since the ALJ found a
marked limitation in another domain, i.e., health and physical well-being, had the ALJ found a
marked limitation in attending and completing tasks, Plaintiff would have an impairment that

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functionally equals a listing.
With respect to the domain of attending and completing tasks, the ALJ stated:
The claimant has less than marked limitation in attending and completing tasks.
The April 2012 examination related that during exam it was indicated that the
claimant had a history of exposure to drugs and alcohol inutero and had a
diagnosis of Cognitive disorder and attention deficit hyperactivity disorder.
[Claimant] was taking Concerta for his attention deficits and based on the
evaluation he appeared to have mild difficulties (20F). 12
Tr. 58.
Plaintiff contends that the foregoing demonstrates that the ALJ did not fully consider the
entire record and/or did not explain how the April 2012 evaluation correlated to mild difficulties
in attending and completing tasks. However, the ALJ’s finding of less than marked limitation in
attending and completing tasks was supported by Dr. Tangen’s 2012 evaluation. As reflected in
the April 2012 evaluation, although Dr. Tangen found that Claimant showed deficits in attention
and executive function, she opined that those deficits were mild and Claimant had shown
significant improvement in cognitive functioning since he started taking his stimulant medication
(Concerta). Tr. 458.
Plaintiff acknowledges that the April 2012 evaluation suggested that Claimant had mild
problems and scored in the average range in many of the areas that were tested. Doc. 21, p. 3.
However, she argues that there are other portions of Dr. Tangen’s April 2012 evaluation that
would support a finding of marked limitation in the attending and completing tasks domain. Doc.
21, p. 3. For example, Plaintiff points out that Dr. Tangen stated in the evaluation that, while
there had been some improvement in Claimant’s attention, according to his mother, he continued
to have problems with organization and comprehension. Tr. 453. Also, Claimant was fidgety,
over active and talkative. Tr.453, 454. Also, Plaintiff points out that, on examination, Dr.
Tangen observed that Claimant’s attention during one-on-one testing was appropriate but he had
12

Exhibit 20F is Dr. Tangent’s April 2012 neuropsychological evaluation. Tr. 453-465.
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difficulty with self-directed attention tasks and he talked to himself during tasks. Tr. 454. While
Plaintiff contends that there are statements within Dr. Tangen’s report that the ALJ did not
reference, an ALJ is not required to cite to each and every piece of evidence. See Kornecky v.
Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006). Moreover, while Plaintiff
contends that those statements support a finding of marked limitation in the attending and
completing tasks domain, even if there is substantial evidence or indeed a preponderance of the
evidence to support a claimant’s position, a reviewing court cannot overturn the Commissioner’s
decision “so long as substantial evidence also supports the conclusion reached by the ALJ.”
Jones, 336 F.3d at 477. Additionally, in determining whether there is substantial evidence to
support the Commissioner’s decision, the Court “may not try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.” Gaffney, 825 F.2d at 100. Here, as
discussed, Dr. Tangen’s April 2012 evaluation supports the ALJ’s finding of less than marked
limitation in the attending and completing tasks domain. 13 Accordingly, reversal and remand is
not warranted.
Plaintiff argues that the ALJ erred by not obtaining further ME testimony after receiving
Dr. Tangen’s April 2012 evaluation or a more current teacher questionnaire. Doc. 18, pp. 8, 10.
However, whether or not ME testimony is necessary is within the ALJ’s discretion. See 20 C.F.R.
416.927(e)(2)(iii) (“Administrative law judges may also ask for and consider opinions from
medical experts on the nature and severity of your impairment(s) and on whether your
impairment(s) equals the requirements of any impairment listed in appendix 1 to subpart P of part
13

In her Reply Brief, Plaintiff suggests that the ALJ’s failure to consider Dr. Tangen’s 2009 neuropsychological
evaluation for the purpose of determining whether a closed period of disability may have been appropriate was error.
Doc. 21, p. 2. However, her argument is not fully articulated. For example, Plaintiff does not argue what findings in
the 2009 neuropsychological evaluation would warrant a finding of disability for a closed period nor does she
indicate what the closed period would be. In light of the lack of articulation, Plaintiff’s is waived. See McPherson v.
Kelsey, 125 F.3d 989, 995–996 (6th Cir. 1997) (“Issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (internal citations omitted).
13

404 of this chapter.”) (emphasis supplied). Further, Plaintiff has not alleged special
circumstances or that a heightened duty to develop the record applied in this case and, absent
special circumstances, such as where a claimant is not represented by counsel, there is no
heightened duty on an ALJ to develop the record and the claimant bears the burden of proving
disability. See Wilson v. Comm’r of Soc. Sec., 280 Fed. Appx. 456, 459 (6th Cir. 2008). Thus,
Plaintiff has failed to demonstrate that the ALJ committed error by not obtaining further ME
testimony.
Even if it was determined that the ALJ was required to take additional steps to develop the
record by obtaining further ME testimony, Plaintiff has failed to demonstrate that the ALJ’s
failure to do so prejudiced Claimant. The ME indicated that he would be interested in seeing a
more current teacher questionnaire to see the impact, if any, Claimant’s medication had on his
non-physical functional abilities. Tr. 18-19, 20.

However, to the extent that Plaintiff claims that

the ALJ erred in not providing the ME with a copy of Ms. Zeigler’s May 22, 2012, teacher
questionnaire (Tr. 253-260), 14 Plaintiff has not explained how that more current teacher
questionnaire would have had an impact on the outcome of the case. In fact, a comparison of the
2010 Teacher Questionnaire (Tr. 346-353) with the more current 2012 Teacher Questionnaire (Tr.
253-260) reveals that Claimant’s teachers reported that Claimant had fewer problems in attending
and completing tasks in 2012 than in 2010. Cf. Tr. 255 (2012) with Tr. 348 (2010). 15 With
respect to Plaintiff’s claim that the ALJ was required to send the 2012 neuropsychological
evaluation to the ME, the ME indicated that he would be interested in seeing a more current

14

Plaintiff does not clearly identify the teacher questionnaire she claims the ALJ should have sent to the ME. (Doc.
18, p. 6 (referencing a teacher questionnaire but providing no record citation for that record)).
15

Additionally, the more current teacher questionnaire is dated May 22, 2012, (Tr. 253-260), which was prior to the
July 24, 2012, hearing (Tr. 10) but it does not appear that Plaintiff submitted that questionnaire until August 3, 2012,
after the hearing (Tr. 252).

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teacher questionnaire, not an updated neuropsychological evaluation. Tr. 18-19, 20. Also, as
discussed above, Plaintiff has failed to demonstrate that the ALJ’s finding of less than marked
limitation in the attending and completing tasks domain is not supported by the 2012
neuropsychological evaluation. 16
In light of the foregoing, the Court concludes that reversal and remand is not warranted for
further ME testimony regarding additional evidence submitted after the hearing.
B.

The ALJ properly assessed the credibility of Claimant’s mother’s testimony
regarding the severity of Claimant’s symptoms
Plaintiff argues that the ALJ improperly discounted her statements regarding the severity

of Claimant’s symptoms when finding that Claimant had less than marked limitation in the
attending and completing tasks domain. Doc. 18, pp. 8-10. In particular, Plaintiff argues that the
record supported Plaintiff’s statements regarding how fatigued Claimant was when he returned
from school but the ALJ improperly discounted this testimony. Doc. 18, p. 10.
Social Security Ruling 96–7p and 20 C.F.R. § 404.1529 describe a two-part process for
assessing the credibility of an individual's subjective statements about his or her symptoms. First,
the ALJ must determine whether a claimant has a medically determinable physical or mental
impairment that can reasonably be expected to produce the symptoms alleged; then the ALJ must
evaluate the intensity and persistence associated with those symptoms to determine how those
symptoms limit a claimant’s ability to work.
When evaluating the intensity and persistence of a claimant’s symptoms, consideration is
given to objective medical evidence and other evidence, including: (1) daily activities; (2) the
location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken
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Additionally, Dr. Tangen completed her evaluation in April 2012, approximately three months prior to the July 24,
2012, hearing. However, it does not appear that Plaintiff submitted that evaluation until after the hearing. Tr. 252.
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to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of
pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other
factors concerning functional limitations and restrictions due to pain or other symptoms. 20
C.F.R. § 404.1529(c); Soc. Sec. Rul. 96–7p, 1996 WL 374186, at * 3 (July 2, 1996). “An ALJ's
findings based on the credibility of the applicant are to be accorded great weight and deference,
particularly since an ALJ is charged with the duty of observing a witness's demeanor and
credibility. Nevertheless, an ALJ's assessment of a claimant's credibility must be supported by
substantial evidence.” Calvin v. Comm'r of Soc. Sec., 437 F. Appx. 370, 371 (6th Cir. 2011)
(citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)).
When assessing the credibility of Plaintiff’s and Claimant’s statements regarding the
severity of Claimant’s alleged symptoms, the ALJ stated:
The claimant and his mother argue that the claimant suffers with headaches and
fatigue. They allege that the claimant becomes confused easily and is tired when
he returns from school caused by his severe liver difficulties.
After considering the evidence of record, the undersigned finds that the claimant’s
medically determinable impairment could reasonably be expected to produce the
alleged symptoms; however, the statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are
inconsistent with finding that the claimant does not have an impairment or
combination of impairments that functionally equal the listing for the reasons
explained below.
In terms of the claimant’s alleged restrictions given by the claimant and his
mother, which are caused by his impairment, the medical and school reports does
not provide supports for the allegations of marked restrictions and limitations that
the claimant argues he has.
It is factual that the claimant had some cognitive difficulties early on but based on
testing scores the claimant has improved and his impairments appear to be fairly
stabilized as will be discussed below.
Tr. 55. The ALJ thereafter proceeded to discuss each of the six domains. Tr. 56-62.
Plaintiff claims that the ALJ simply recited the boilerplate language. However, as noted

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above, the ALJ considered and relied upon medical and school reports in finding that Plaintiff’s
and Claimant’s claim that Claimant had marked limitations in domains other than domain six, i.e.,
health and physical well-being, was not supported by the record. Tr. 55-62. To the extent that
Plaintiff suggests that, because the ALJ acknowledged that there was evidence that Claimant’s
history of chronic hepatitis disorder was causing severe limitations, the ALJ was bound to accept
Plaintiff’s and Claimant’s statements that he had marked limitations in at least two domains,
Plaintiff’s argument is unpersuasive. The ALJ’s conclusion that there was evidence that
Claimant’s history of chronic hepatitis disorder was causing severe limitations was made with
respect to his evaluation of domain six, i.e., health and physical well-being. Tr. 62. The ALJ
ultimately concluded that the Claimant did in fact have a marked limitation in the health and
physical well-being domain. Thus, the ALJ accepted Plaintiff’s and Claimant’s statements to the
extent that the ALJ found those statements to be supported by the other evidence of record.
However, the ALJ’s finding of a marked limitation in the domain of health and physical wellbeing did not require the ALJ to find a marked limitation in one or more of the remaining five
domains. As discussed above, the ALJ’s finding with respect to the domain of attending and
completing tasks was supported by substantial evidence.
Although Plaintiff disagrees with the ALJ’s credibility assessment, the ALJ’s analysis is
sufficiently clear to allow this Court to determine whether the ALJ conducted a proper credibility
assessment and whether that determination is supported by substantial evidence. Soc. Sec. Rul.
96–7p, 1996 WL 374186, at 4. In reviewing an ALJ’s credibility determination, a court is
“limited to evaluating whether or not the ALJ’s explanations for partially discrediting [claimant’s
testimony] are reasonable and supported by substantial evidence in the record.” Jones, 336 F.3d
at 476; see also Gaffney, 825 F.2d at 100 (A court may not “try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.”).
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Having reviewed the ALJ’s decision, and considering that an ALJ’s credibility assessment
is to be accorded great weight and deference, considering the improvement in Claimant’s
symptoms reflected in both medical records as well as school records, the undersigned finds that
the ALJ’s credibility analysis regarding the severity of Claimant’s impairments is supported by
substantial evidence. Accordingly, Plaintiff’s request to reverse and remand the Commissioner’s
decision on the basis of the ALJ’s credibility assessment is without merit.
VII. Conclusion
For the foregoing reasons, the Court AFFIRMS the Commissioner’s decision.

February 10, 2015
Kathleen B. Burke
United States Magistrate Judge

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