Copeland v. Commissioner of Social Security
Memorandum Opinion and Order affirming decision of Commissioner. Magistrate Judge James R. Knepp, II on 3/29/17. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
ON BEHALF OF A.C.,
Case No. 1:16 CV 556
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff John Copeland (“Copeland”) filed a Complaint against the Commissioner of
Social Security (“Commissioner”) on behalf of his son, A.C. (“Plaintiff”), seeking judicial
review of the Commissioner’s decision to deny supplemental security income (“SSI”). (Doc. 1).
The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented
to the undersigned’s exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil
Rule 73. (Doc. 13). For the reasons stated below, the undersigned affirms the decision of the
Copeland filed an application for SSI on behalf of Plaintiff on March 5, 2013, alleging a
disability onset date of July 1, 2011. (Tr. 172-75).1 The claims were denied initially and upon
reconsideration. (Tr. 135-37, 143-45). Copeland then requested a hearing before an
administrative law judge (“ALJ”). (Tr. 150). On February 11, 2015, Copeland appeared and
1. Copeland had previously applied for SSI on behalf of Plaintiff in December 2011 and August
2012. See Tr. 62, 117. Both times, the application was denied and he did not appeal. Id.
testified in Cleveland, Ohio, at a hearing before the ALJ. (Tr. 82-105). On March 11, 2015, the
ALJ found Plaintiff not disabled in a written decision. (Tr. 62-77).2 The Appeals Council denied
Copeland’s request for review, making the hearing decision the final decision of the
Commissioner. (Tr. 1-6); 20 C.F.R. §§ 404.955, 404.981. In denying the request for review, the
Appeals Council noted:
We also looked at medical records from Ohio Guidestone, dated March 12, 2015
through May 13, 2015. The Administrative Law Judge decided your case through
March 11, 2015. This new information is about a later time. Therefore, it does not
affect the decision about whether you were disabled beginning on or before
March 11, 2015.
If you want us to consider whether you were disabled after March 11, 2015, you
need to apply again.
(Tr. 2). Copeland filed the instant action on behalf of Plaintiff on March 8, 2016. (Doc. 1).
In February 2013, Plaintiff saw Dr. Peter Corpus at the Center for Families and Children
(“CFC”). (Tr. 298). The chief complaint was “continued hyperactivity and aggression in the PM”
but “[b]ehavior [was] good at school.” Id. Dr. Corpus noted Plaintiff’s diagnoses of ADHD and
ODD, discontinued Ritalin, and started Adderall in the afternoon. (Tr. 299). He recommended
Community Psychiatric Supportive Treatment (“CPST”) service (“in home therapy to help the
mother set better parameters and boundaries[.]”). Id.
2. The ALJ first dismissed the request for a hearing through the date of the decision on Plaintiff’s
second application (October 16, 2012), based on res judicata. (Tr. 62). He then stated he was
considering the current claim based on the application filing date of March 5, 2013. Id.
3. The undersigned summarizes the portions of the record relevant to the arguments raised by
Copeland. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (arguments
not raised in opening brief considered waived).
In March 2013, Copeland reported to Dr. Corpus his concern about Plaintiff’s nonvolitional vocalizations, and continued oppositional behaviors at home. (Tr. 300). Dr. Corpus
continued diagnoses of ADHD and ODD. (Tr. 301).
At an appointment at CFC in April 2013, Vince Caringi, M.D., noted Plaintiff had a
history of temper tantrums occurring when Plaintiff did not get his way. (Tr. 319). Adderall was
“working well and lasting through the school day”, with teachers also reporting improvement. Id.
Dr. Caringi continued Plaintiff’s medications and recommended individual behavioral health
counseling. (Tr. 320). At a follow-up appointment in June, Plaintiff reported the school year
ended “awesome” and his mother reported he had a good final report card. (Tr. 321). She also
reported “a few more episodes of acting out near the end of the year.” Id.
In August 2013, Dr. Caringi noted Copeland stated “summer has been filled with ‘ups
and downs’ with [Plaintiff’s] behavior” and that Plaintiff’s “moods have been shifting more
rapidly”. (Tr. 333). Copeland also reported an increase in obsessive behavior, including repeating
sounds. Id. A questionnaire Dr. Caringi submitted that same day indicated Plaintiff had daily
hyperactivity and impulsivity as well as frequent oppositional and defiant behavior. (Tr. 335).
Plaintiff responded to his psychiatrist in a “generally appropriate” way but “require[d]
redirection” and had difficulty completing tasks. Id. Plaintiff’s response to treatment was noted
to be “fair”. (Tr. 338).
Plaintiff’s mother completed a “Case History Form” in late August 2013. (Tr. 349). She
indicated Plaintiff had some speech problems, and that he became frustrated by them. (Tr. 349,
353). Plaintiff’s mother also indicated Plaintiff had a high activity level, difficulty following
directions and maintaining attention, impulsivity, was aggressive and had behavior problems,
and was both overly sensitive to stimuli and had a low response to stimuli. (Tr. 357).
In October 2013, Plaintiff again saw Dr. Caringi. (Tr. 422). His mother reported “some
trouble with peers during recess” and “ongoing concern for mood swings and persistent
irritability.” Id. In November 2013, Dr. Caringi noted Plaintiff’s parents reported his school
performance was better but “anger and violence” was worse with more difficulty with frustration
tolerance and mood swings. Id. Copeland also “admit[ted] that they have not been adherent to
Also in October 2013, Plaintiff underwent a Mental Health Assessment at Metro Health
Medical Center with Deborah Casciato, MSSA, LISW-S. (Tr. 435-39). Plaintiff’s parents
reported that medication (Adderall twice per day and Intuniv once per day) was helpful, but that
Plaintiff continued to have behavioral problems. (Tr. 435). Plaintiff had outbursts, yelled, did not
like change, and had to be bribed and coaxed to get ready for school. Id. However, once at
school, he would get out of the car without a problem. Id. Plaintiff’s parents reported he has lots
of friends in his neighborhood and classroom, but is sometimes teased and gets aggressive with
peers. (Tr. 436). His parents thought he was not trying at school, which resulted in poor grades.
(Tr. 437). Diagnosis was disruptive behavior disorder, not otherwise specified. Id.
Later that same month, Plaintiff’s parents saw Nikhil S. Koushik, Ph.D. (Tr. 442-46).
They reported Plaintiff was violent, angry, and oppositional at home—arguing, interrupting, and
hitting his mother. (Tr. 442). Copeland reported working on behavioral contingencies at CFC and
he perceived that to be helping. Id. Plaintiff does “very well” academically, but recently had not
been completing his work, or refusing to do his work. (Tr. 444). Plaintiff’s parents reported
rewarding Plaintiff with money for good behavior at school. (Tr. 445). He also helped at home
by taking out the dog, cleaning up after himself, and helping with the dishes. Id. Plaintiff’s
behavior was better at school than at home. (Tr. 446). Dr. Koushik diagnosed ADHD, ODD,
mood disorder, not otherwise specified, and assigned Plaintiff a GAF score of 61-704, indicating
“[m]ild symptoms.” Id.
In November 2013, Plaintiff saw Dr. Florence V. Kimbo, M.D. (Tr. 450-52). Copeland
reported Plaintiff was hyperactive, aggressive toward his mother, had broken things, damaged
walls, and thrown objects at the television. (Tr. 450). Since Plaintiff stopped seeing his therapist
at CFC, his anger had gotten worse. Id. Diagnoses were ADHD-Combined Subtype by history,
mood disorder (not otherwise specified), conduct disorder childhood onset, and questionable
autism spectrum disorder. (Tr. 452). Dr. Kimbo noted Plaintiff was to continue current
medications, discussed the possibility of Adderall making aggression worse, and noted Plaintiff
“[w]ill need a therapist.” Id.
Progress notes from an appointment with Dr. Koushik, in December 2013 state Copeland
“indicated he has been trying to be more firm with contingencies which has been helping.” (Tr.
470). One of Plaintiff’s anger triggers was having to wait or be patient. Id. Dr. Koushik
encouraged Copeland to “double reward him for waiting” (“if he waits until the next day for
something and is able to stay calm he gets the original privilege and then a bonus privilege”). Id.
Plaintiff was “very compliant with examiner requests”, “was polite and followed instructions
well” and “stayed calm even when examiner broke a few rules or enforced his own rules.” (Tr.
4. The GAF scale represented a “clinician’s judgment” of an individual’s symptom severity or
level of functioning. Am. Psych. Ass’n, Diagnostic & Statistical Manual of Mental
Disorders, 32–33 (4th ed., Text Rev.2000). “The most recent (5th) edition of the Diagnostic and
Statistical Manual of Mental Disorders does not include the GAF scale.” Judy v. Colvin, 2014
WL 1599562, at *11 (S.D. Ohio); see also Diagnostic and Statistical Manual of Mental
Disorders 16 (5th ed. 2013) (“DSM–V”) (noting recommendations “that the GAF be dropped
from [DSM–V] for several reasons, including its conceptual lack of clarity ... and questionable
psychometrics in routine practice”). However, as set forth in the DSM—IV, a GAF score of 6170 indicated [s]ome mild symptoms (e.g., depressed mood and mild insomnia)” or “some
difficulty in social, occupational, or school functioning . . . but generally functioning pretty
471). Dr. Koushik assessed ADHD-Combined Type, ODD, and mood disorder not otherwise
specified. Id. Plaintiff was again assessed with a GAF score of 61-70, indicating “[m]ild
On December 16, 2013, Plaintiff again saw Dr. Kimbo. (Tr. 481). Plaintiff reported he
was in the second grade, liked his teacher, and had friends at school. Id. He also “talked about
playing C[a]ll of Duty and described how it had 7 chapters” and said he has both an X-Box and a
Wii-U at home. Id. He was “fidgety but remain[ed] seated” and was cooperative during the
appointment. (Tr. 482). Dr. Kimbo continued prior diagnoses. Id.
In January 2014, Dr. Koushik noted Plaintiff’s mother had been off work and school for a
few weeks and “things have been a lot better” with Plaintiff better able to manage his temper.
(Tr. 487-88). Plaintiff had anxiety symptoms, and struggled with transitions (being told to stop
playing video games or watching movies). (Tr. 488).
In February 2014, Plaintiff reported to Dr. Koushik that he had been getting angry two to
three times per week but had not been destroying things. (Tr. 519). Instead, he would go to his
room and hit, stomp, or yell into his pillow. Id. Plaintiff’s mother confirmed that he was doing a
better job of managing his anger, and was somewhat better at transitions. Id. Dr. Koushik noted
information from Plaintiff’s teacher “indicate[d] sub-clinical thought problems at school (i.e.,
frequently having trouble getting off topics, occasional strange behaviors), but no difficulties in
other areas”, a “preoccupation with gaming”, “difficulty transitioning between activities” and
hitting. Id. Diagnoses were anxiety disorder (not otherwise specified), ADHD by history, ODD
per history, rule out obsessive compulsive disorder, and rule out separation anxiety disorder.
Again, Dr. Koushik assessed a GAF of 61-70 indicating “[m]ild symptoms.” (Tr. 521).
In March 2014, Nakita Heard, LSW, Case Worker, at Ohio Guidestone, performed a
mental health assessment. (Tr. 568-75). Ms. Heard noted Plaintiff was hyper and unable to
engage with her or maintain focus. (Tr. 568). Plaintiff’s parents reported he is aggressive toward
peers and family members, and will destroy their things—but not his own—when he becomes
upset. Id. Plaintiff was reported to enjoy playing with Legos, playing video games, and was
involved with Boy Scouts. (Tr. 569). The parents reported taking things away as punishment but
that Plaintiff becomes upset (“has kicked holes in the wall, thrown objects at the tv, and . . .
thrown objects at the wall”) and that Plaintiff “will manipulate them causing them to give his
belongings back [to] him.” Id. A mental status examination showed intense eye contact, agitated
activity, clear speech, full affect, loss of interest, average intelligence, hyperactive behavior, and
impaired attention/concentration. (Tr. 572). Ms. Heard assessed Plaintiff’s symptoms as “severe”
and his level of functioning impairment as “serious”. (Tr. 573). Ms. Heard explained Plaintiff
“would benefit from outpatient counseling services to address his ongoing mental health
symptoms and the family could benefit from CPST services.” Id.
Later in March 2014, Plaintiff saw Dr. Kimbo, where his parents reported Plaintiff’s
teachers sent home notes about “aggressive behavior [and] not keeping hands to himself.” (Tr.
542). Plaintiff was not listening at home, “annoys” other kids, and had hurt the dog at his uncle’s
house. Id. Dr. Kimbo increased Plaintiff’s Adderall dosage, continued prior diagnoses, and
assessed a GAF score of 65. (Tr. 543).
In July 2014, Plaintiff was seen by Sonia Stanford, QMHS5, Case Worker, at Ohio
Guidestone, who established a treatment plan. (Tr. 558-65). Problems included aggressive
5. The Ohio Administrative Code defines “Qualified mental health specialist” (QMHS) as “an
individual who has received training for or education in mental health competencies and who has
demonstrated, prior to or within ninety days of hire, competencies in basic mental health skills
behaviors, difficulty dealing with life stress, impulsive behaviors, and behaviors interfering with
friendships. (Tr. 558). Diagnoses were ADHD and ODD. (Tr. 559). Treatment goals were:
reducing aggressive behaviors and stabilizing mood, id.; reduce frequency and intensity of
anxiety responses (Tr. 561); and maintain attention to a situation or task in spite of distractibility,
fatigue, or boredom (Tr. 563). Later that month, Colleen Grabowski, PCC-S, completed a
“medical necessity determination” and stated Plaintiff’s symptoms were severe and that his level
of functioning impairment was serious. (Tr. 566-67). His areas of functioning impairment
included school, family relations, social, and mood. (Tr. 567).
At an appointment with Dr. Kimbo in September 2014, Dr. Kimbo noted Plaintiff was
“talkative, very hyperactive, rocking in the chair and leaning it dangerously backwards”. (Tr.
590). Attention was “sustained.” Id. Dr. Kimbo adjusted Plaintiff’s medications and continued
prior diagnoses. Id. She also assigned a GAF score of 65, indicating mild symptoms. Id.
In December 2014, Dr. Kimbo wrote a letter to the principal of Plaintiff’s school (at the
request of Plaintiff’s parents) in support of a multi-factored evaluation for special education. (Tr.
626-27). Dr. Kimbo stated she believed this was necessary due to speech/language issues,
attention/concentration/focus issues, impulsivity, and getting along with others. (Tr. 626).
In April 2013, state agency reviewing physician Mel Zwissler, Ph.D., concluded
Plaintiff’s impairments did not functionally equal a listed impairment because Plaintiff had
marked limitation in the domain of interacting and relating with others, but less than marked
along with competencies established by the agency, and who is not otherwise designated as a
provider or supervisor, and who is not required to perform duties covered under the scope of
practice according to Ohio professional licensure . . . .” See Ohio Admin. Code 5122–2401 (Sept.
7, 2011); see also Beckstedt v. Comm’r of Soc. Sec., 2015 WL 235193, at *7 (S.D. Ohio), report
and recommendation adopted by 2015 WL 545157 (S.D. Ohio) (noting QMHS definition).
limitation in acquiring and using information, attending and completing tasks, and caring for
oneself. (Tr. 120). Dr. Zwissler also concluded Plaintiff had no limitation in health and physical
well-being, and moving about and manipulating objects. Id. In August 2013, state agency
reviewing physician Carl Tishler, Ph.D., affirmed Dr. Zwissler’s conclusions. (Tr. 131-32).
In October 2014, Ms. Stanford completed a questionnaire regarding functional
equivalence. (Tr. 602-05). In it, she noted she had known Plaintiff since May of that year. (Tr.
602). She opined Plaintiff had marked limitations in acquiring and using information, attending
and completing tasks, interacting and relating with others, and caring for self. (Tr. 602-04). Ms.
Stanford reported she provided weekly in-home services to Plaintiff. (Tr. 604). In response to the
question of “[i]f this is an episodic disorder, how often and for how long does it interfere with
[Plaintiff’s] functioning?”, she replied “[n]ot in my scope of practice to answer.” Id.
Plaintiff had an Accommodation Plan in place for the first grade year (2012-13). (Tr.
243).6 It included: 1) being seated near the teacher to maintain focus during group activities, and
to take tests; 2) if distracted while working, he would be given the option of completing his work
at the table or in an empty desk; 3) permission to stand at his desk or kneel on his chair, if
needed; 4) subtle cues (“a wink or thumbs up”) when he is on task and subtle cues (“a hand on
his back or the teacher in close proximity to him”) when he needs to focus; 5) being asked to
repeat directions to verify comprehension; and 6) being assigned an emergency drill buddy to
ensure he stays with the class during drills. Id.
A weekly progress report from late February 2013 stated Plaintiff had been in trouble for
talking during a fire drill, and that his teacher had noticed more instances of Plaintiff “making
6. This one-page “Accommodation Plan” is unsigned, but Plaintiff’s teacher attached it to an
evaluation she completed in June 2013. See Tr. 241 (“Accommodation Plan enclosed.”).
random vocalizations”, which the teacher did not believe he could control. (Tr. 200). The teacher
rated Plaintiff’s actions in: 1) following class rules; 2) completing work neatly and on time; 3)
turning in homework on time; 4) paying attention and participating; 5) treating others with
kindness; and 6) responding properly to authority as “good”. Id. The teacher also rated Plaintiff’s
self-control as fair to good, and appropriateness of his behavior outside of class as fair. Id.
In May 20137, Plaintiff’s first grade teacher at West Park Catholic Academy, Kathryn R.
Gibson, completed a questionnaire for the Social Security Administration. (Tr. 204-13). She
noted Plaintiff was in first grade, and was at grade-level in reading, math, and written language.
(Tr. 204). Regarding Plaintiff’s ability to care for himself, Ms. Gibson noted Plaintiff had weekly
“obvious problem[s]”8 with handling frustration, being patient, and responding to changes in his
own mood. (Tr. 209). She assessed a “slight problem” in the areas of using good judgment,
identifying and appropriately asserting emotional needs, using appropriate coping skills, and
knowing when to ask for help. Id. She explained Plaintiff has trouble “express[ing] himself in
relation to how others react to him”, “will growl or shake” when frustrated, and taking turns is “a
challenge for him.” Id. Regarding attending and completing tasks, Ms. Gibson indicated Plaintiff
had daily “obvious problems” with waiting to take turns, changing from one activity to another
without being disruptive, and working without distracting himself or others. (Tr. 206). He had a
“slight problem” paying attention when spoken to directly, refocusing, carrying out multi-step
instructions, and working at a reasonable pace. Id. Ms. Gibson explained Plaintiff: “has no
problem attending to self-selected or ‘freetime’ activities”, but “[w]hen asked to follow multi
7. In one place this evaluation is dated March 25, 2013 (Tr. 213), and in another it is dated May
25, 2013 (Tr. 211).
8. The rating key had a scale of one to five, with one indicating “no problem”, two indicating “a
slight problem”, three indicating “a serious problem”, four indicating “a serious problem”, and
five indicating “a very serious problem.” See, e.g., Tr. 209.
step directions he often becomes distracted” and “[h]e has some behaviors which also distract
others in the class.” Id. Ms. Gibson indicated in other areas of the questionnaire that Plaintiff
only sits next to one person and is kept near the teacher “to help maintain his focus and minimize
distractions to others.” (Tr. 207). She stated Plaintiff “often moves as if on ‘fast-forward’”. (Tr.
208). Finally, Ms. Gibson noted Plaintiff’s “repetitive gestures and vocalizations . . . sometimes
illicit a negative response from his peers” and that these worsened over the course of the school
year. (Tr. 211). She also stated Plaintiff “knows he should not repeat words and sounds . . . but
he cannot help himself.” Id.
In June 2013, Ms. Gibson completed a “School Activities Questionnaire”. (Tr. 241-42).
In it, she noted Plaintiff’s attention span, ability to follow instructions, and ability to respond to
criticism were “somewhat less” than others in the class. (Tr. 241). His ability to work
independently, and to understand and complete assignments on time were “about the same” as
others in his class. Similarly, his ability to learn reading, writing, and mathematics were “about
the same with accommodations in place.” Id. His ability to respond to change of routine was,
however, “considerably less” than his classmates. Id. Ms. Gibson noted Plaintiff had been
excluded from recess “several times related to arguments” and that he was “well-liked by his
peers, however, they do react negatively when he produces random vocalizations.” (Tr. 242).
In January 2014, Plaintiff was given a conduct warning for “hitting, punching, [and]
poking” another student. (Tr. 248). Plaintiff said he was just playing. Id.
In May 2014, Plaintiff’s teacher (Mrs. Link) wrote a letter to Plaintiff’s attorney. (Tr.
253). In it, she described a November 2013 parent-teacher conference where she had discussed
behavior related infractions (“talking and not participating fully in specials classes, threatening
words to one classmate, and threatening gesture to another”). She also described a January 2014
conference where Copeland indicated “they were still trying to find a counselor who could help
[Plaintiff].” Id. The teacher’s “main concern at that conference was the incidents involving
hitting and punching when the class was transitioning to recess to class”, but “[b]y the end of
January . . . [she] noticed an improvement in behavior and since then, [Plaintiff] has had only a
few minor behavioral issues of any kind.” Id.
In October 2014, Plaintiff’s teacher sent home a note that Plaintiff had received “three
strikes” for poor behavioral choices. (Tr. 273). He refused to do assigned work, and pushed in
line at lunch. Id.
In November 2014, notes from a parent teacher conference noted areas of strength as
“[g]ood effort on work” and “[a]sks for help when needed.” (Tr. 255). In “[a]reas of [n]eed”, it
listed: 1) “[t]urning in work – missing work”; 2) “[o]organization”; 3) “[f]rustration / [a]nger
management”; 4) “[n]eatness”; 5) “[t]alking at non-talking time”; and 6) “[s]taying in his seat”.
Hearing Testimony and Personal Background
Plaintiff was born in April 2006, making him six years old at his filing date. (Tr. 172). At
the time of the hearing, he was in third grade in regular classes. (Tr. 89). He lived at home with
his parents and paternal grandparents. (Tr. 87).
Copeland testified Plaintiff was “very hyper”, “can’t complete tasks”, “rapidly changes
his mood within seconds”, and “destroys [the] home and our things if he gets mad.” (Tr. 88).
Copeland stated Plaintiff “doesn’t seem like” he has control over his conduct. Id. He does show
remorse after bad behavior. (Tr. 90).
Plaintiff’s school performance fluctuated between good and bad. (Tr. 89). Some days
“he’s really good” and “then there’s days he doesn’t listen.” (Tr. 91). He “[s]ometimes” behaves
better in school than he does at home. Id. Sometimes it takes Plaintiff a “really long time” to do
his homework and his parents “have to bribe him” with the promise of renting a movie or video
game. (Tr. 91-92).
Plaintiff had broken a desk at school the previous year. (Tr. 98). Plaintiff had also been in
trouble for “talking out of turn” and in his previous school, because he “hit somebody.” (Tr.
99). Plaintiff had never been suspended. (Tr. 98).
Plaintiff had friends both in the neighborhood and at school, and participated in the Lego
Club after school. (Tr. 90). He had been in six fights in the neighborhood that summer. (Tr. 93).
He participated in sports during previous years but was “getting too violent”. (Tr. 91). Plaintiff
likes to play video games on his Wii U “[o]nce or twice a week.” (Tr. 92).
Copeland testified Plaintiff is “really mean” to his grandfather, (but “sometimes” nice),
and is nice to his grandmother. Id. When Plaintiff misbehaves, his parents punish him by
grounding him, or taking his Legos or video games away. (Tr. 97-98). Plaintiff responds by
“crying, yelling, kicking the walls, screaming at everybody and everything around him and
eventually calming down after about 10-15 minutes.” (Tr. 98).
Copeland testified Plaintiff looks both ways when he crosses the street, and takes care of
his personal needs (brushing his teeth, showering, going to the bathroom), but needs reminders
and supervision. (Tr. 92-93).
Plaintiff’s parents had gotten him a puppy for Christmas. (Tr. 94). He was not physically
cruel to the dog, but would scream at it. Id. Copeland testified Plaintiff was helping by cleaning
up after the dog and taking it outside. Id. Plaintiff also keeps his room clean “to an extent”. (Tr.
95). His Lego sets all have a place on the shelves, but he is less careful with other things. Id.
Copeland testified Plaintiff sometimes hurts himself: “hit[ting] himself in the head,
pinch[ing] himself, [and] runs into walls purposely”. (Tr. 101).
Plaintiff was taking Adderall twice per day and Quantazine three times per day. (Tr. 89).
Copeland testified that without the medication “you can’t even talk to him” because he will not
listen. (Tr. 96).
In a written decision, the ALJ concluded Plaintiff had not engaged in substantial gainful
activity since his application date, and had severe impairments of oppositional defiant disorder
(“ODD”) with disruptive behavior, and attention deficit hyperactivity disorder (“ADHD”). (Tr.
65). The ALJ found Plaintiff did not have an impairment that met or medically equaled the
severity of the listings. (Tr. 66). The ALJ then found Plaintiff did not have an impairment or
combination of impairments that functionally equals the listings because he only had a marked
limitation in one domain—interacting and relating with others. (Tr. 71-76). Therefore, the ALJ
found Plaintiff not disabled. (Tr. 76).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the 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.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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). The Commissioner’s findings
“as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial
evidence or indeed a preponderance of the evidence supports a claimant’s position, the court
cannot overturn “so long as substantial evidence also supports the conclusion reached by the
ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for SSI is predicated on the existence of a disability. 42 U.S.C. § 1382(a).
“Disability” is defined as the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). For claimants under the
age of 18, the Commissioner follows a three-step evaluation process—found at 20 C.F.R. §
416.924(a)—to determine if a claimant is disabled:
Is claimant engaged in a substantial gainful activity? If so, the claimant is
not disabled regardless of their medical condition. If not, the analysis
Does claimant have a medically determinable, severe impairment, or a
combination of impairments that is severe? For an individual under the
age of 18, an impairment is not severe if it causes a slight abnormality or a
combination of slight abnormalities which causes no more than minimal
functional limitations. If there is no such impairment, the claimant is not
disabled. If there is, the analysis proceeds.
Does the severe impairment meet, medically equal, or functionally equal
the criteria of one of the listed impairments? If so, the claimant is disabled.
If not, the claimant is not disabled.
To determine whether an impairment or combination of impairments functionally equals
a listed impairment, the minor claimant’s functioning is assessed in six different functional
domains. 20 C.F.R. § 416.926a(b)(1). If the impairment results in “marked” limitations in two
domains of functioning, or an “extreme” limitation in one domain of functioning, then the
impairment is of listing-level severity and therefore functionally equal to the listings. Id. §
A “marked” limitation is one that is more than moderate but less than extreme, and
interferes “seriously” with the ability to independently initiate, sustain, or complete activities. Id.
§ 416.926a(e)(2)(i). “It is the equivalent of functioning [one] would expect to find on
standardized testing with scores that are at least two, but less than three, standard deviations
below the mean. Id. An “extreme” limitation is one that interferes “very seriously” with the
ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3)(i). The six
functionality domains are: 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
yourself, and 6) health and physical well-being. Id. § 416.926a(b)(1). In determining functional
equivalence, the ALJ must consider the “whole child.” Social Security Ruling 09–lp, 2009 WL
396031, at *2.
Copeland raises three objections to the ALJ’s decision: 1) the ALJ’s finding that Plaintiff
had less than marked limitation in the domains of caring for self and attending and completing
tasks were not supported by substantial evidence; 2) the ALJ erred in his analysis of Ms.
Stanford’s opinion; and 3) new and material evidence warrants remand.
Caring for Self
Copeland first contends the ALJ erred in not finding Plaintiff had a marked limitation in
the domain of caring for oneself. The Commissioner responds that the ALJ’s determination is
supported by substantial evidence.
The “caring for yourself” domain includes “how well you maintain a healthy emotional
and physical state, including how well you get your physical and emotional wants and needs met
in appropriate ways; how you cope with stress and changes in your environment; and whether
you take care of your own health, possessions, and living area.” 20 C.F.R. § 416.926a(k); see
also SSR 09-7p, 2009 WL 396029. The regulation provides, regarding school-aged children:
You should be independent in most day-to-day activities (e.g., dressing yourself,
bathing yourself), although you may still need to be reminded sometimes to do
these routinely. You should begin to recognize that you are competent in doing
some activities and that you have difficulty with others. You should be able to
identify those circumstances when you feel good about yourself and when you
feel bad. You should begin to develop understanding of what is right and wrong,
and what is acceptable and unacceptable behavior. You should begin to
demonstrate consistent control over your behavior, and you should be able to
avoid behaviors that are unsafe or otherwise not good for you. You should begin
to imitate more of the behavior of adults you know.
20 C.F.R. § 416.926a(k)(2)(iv); SSR 09-7p, 2009 WL 396029, *5.
Examples of limited function in caring for yourself (although such examples do not
necessarily show marked or extreme limitation) include: 1) putting inedible objects in the mouth;
2) using self-soothing activities that show developmental regression (e.g., thumbsucking, rechewing food) or have stereotyped mannerisms (e.g., body rocking, headbanging); 3) not
dressing or bathing self appropriately for age; 4) engaging in self-injurious behavior (e.g. selfinflicted injury or refusal to take medication), or ignoring safety rules; 5) not spontaneously
pursuing enjoyable activities or interests; or 6) disturbance in eating or sleeping patterns. 20
C.F.R. § 416.926a(k)(3)(i)-(vi).
When discussing the “caring for self” domain specifically, the ALJ cited the appropriate
regulation and SSR 09-7p, including examples of limited functioning in those areas. (Tr. 75). He
then concluded Plaintiff had less than marked limitation in the ability to care for himself, stating:
The evidence shows the claimant was frustrated, impatient, and moved as if on
fast forward carelessly. He had difficulty controlling vocalizations, repetitive
movements, and impulses when he wanted to something. The claimant had a
minor head injury in December 2012 that required two stitches. The claimant
reported he had been “messing around.” No loss of consciousness was indicated.
The undersigned agrees with the Commissioner that the ALJ’s conclusion that Plaintiff
had less than marked impairment in caring for self is supported by substantial evidence.
Although the ALJ’s explanation could have been clearer, in the context of the definition of the
domain, the explanation follows. For example, the ALJ’s notation that Plaintiff “had difficulty
controlling vocalizations, repetitive movements, and impulses when he wanted something”
indicates the ALJ recognized Plaintiff did have some limitation in this domain, but concluded
that it did not rise to the marked level. Next, the ALJ’s reference to a minor head injury follows
after the ALJ cites examples of limitations in this domain, including, “self-inflicted injury.” (Tr.
75). Thus, the implication of mentioning that Plaintiff reported he had been “messing around” is
that the injury was not self-inflicted and intentional, but rather an accident.
The ALJ’s conclusion is supported by substantial evidence in the record as a whole. The
ALJ gave “considerable weight” to the state agency reviewers who found Plaintiff did not have a
marked impairment in this domain. (Tr. 71) (citing Tr. 120, 131). The ALJ also cited records that
support this conclusion in his summary of the evidence at the beginning of the functional
equivalence analysis. See Tr. 68 (“Tantrums were down to once daily. He was trying more at
school but he was still talkative.”) (citing Tr. 292); Tr. 68 (“His behavior was good in school.”)
(citing Tr. 298); Tr. 69 (noting stable GAF scores in the 61-70 range) (citing Tr. 446, 590); Tr.
70 (Plaintiff’s teacher’s evaluation of his limitations in caring for self “rated as none to obvious”)
(citing Tr. 209).9 Additionally, Copeland testified that Plaintiff is able to shower and brush his
teeth independently (with some reminders and supervision) (Tr. 93), and that he looks both ways
before crossing the street (Tr. 92). Again, this evidence as a whole shows that, while Plaintiff
clearly had some limitation in the domain of caring for self, there is substantial record evidence
to support the ALJ’s conclusion that it was less than marked.
Although Copeland argues there was substantial evidence of “uncontrolled aggressive
behavior” (Doc. 15, at 15), the ALJ’s decision reflects that he considered these records, but did
not agree that it showed behaviors not completely within Plaintiff’s control. See Tr. 68 (“The
Center for Families and Children suggested that the claimant’s behavior has a volitional
component and that his conduct improved with therapy, a combination of counseling and
medication.”) (citing inter alia, Tr. 306 (progress note that Plaintiff “has been trying to work
through his behaviors more”); Tr. 313 (“continued hyperactivity and aggression in the PM.
Behavior is good at school.”); Tr. 319 (progress note stating teachers had reported
improvement); Tr. 320 (progress note indicating Plaintiff stated school year ended “awesome”);
see also Tr. 67 (“In January 2014, it was noted the claimant was doing better managing his
9. Notably, Plaintiff’s teacher opined that he had problems in the domain of caring for self, but
on a scale of one (“no problem”) to five (“very serious problem”), she rated Plaintiff as a three
(“an obvious problem”) in three out of ten categories, and one (“no problem”) or two (“a slight
problem”) in the remaining seven categories. (Tr. 209). With regard to this questionnaire, the
In Domain #5 (caring for self), he was rated as none to obvious. He had difficulty
reading others. He was frustrated at times, impatient, and had repetitive gestures
and vocalizations that were distracting to self and others. He was calmer and more
focused after taking medication. He had loss of appetite due to medication. He ate
very little at school. He was described as kind-hearted and loving.
temper at home.”) (citing Tr. 488); Tr. 91 (Copeland’s testimony that “[s]ometimes” there may
be a volitional component to the way Plaintiff behaves at home).
The substantial evidence standard creates a “‘zone of choice’ within which [an ALJ] can
act without the fear of court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
Given the evidence discussed above, the undersigned concludes the ALJ did not err in his
evaluation of this domain, and his decision falls with the “zone of choice” allowed by the
substantial evidence standard. The ALJ did not find Plaintiff had no limitation in this domain—
he discussed and acknowledged difficulties—but rather found that it was less than marked.
Although there is certainly evidence to support Copeland’s argument—and a contrary
conclusion—the Court may not overturn “if substantial evidence, or even a preponderance of the
evidence, supports the claimant’s position, so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones, 336 F.3d at 477. It does here.
Attending & Completing Tasks
Second, Copeland contends the ALJ erred in finding Plaintiff had a less than marked
limitation in the functional domain of attending and completing tasks. The Commissioner
responds that the ALJ’s decision is supported by substantial evidence and that the evidence
marshaled by Plaintiff does not compel a different conclusion.
The domain of “attending and completing tasks” addresses “how well you are able to
focus and maintain your attention, and how well you begin, carry through, and finish your
activities, including the pace at which you perform activities and the ease with which you change
them.” 20 C.F.R. § 416.926a(h); see also SSR 09-4p, 2009 WL 396033, at *2. For school-aged
children, the regulation provides:
When you are of school age, you should be able to focus your attention in a
variety of situations in order to follow directions, remember and organize your
school materials, and complete classroom and homework assignments. You
should be able to concentrate on details and not make careless mistakes in your
work (beyond what would be expected in other children your age who do not have
impairments). You should be able to change your activities or routines without
distracting yourself or others, and stay on task and in place when appropriate. You
should be able to sustain your attention well enough to participate in group sports,
read by yourself, and complete family chores. You should also be able to
complete a transition task (e.g., be ready for the school bus, change clothes after
gym, change classrooms) without extra reminders and accommodation.
20 C.F.R. § 416.926a(h)(2)(iv). Examples of limited functioning in this area (although such
examples do not necessarily describe a marked or extreme limitation) include being: 1) “easily
startled, distracted, or overreactive to sounds, sights, movements or touch”; 2) “slow to focus on,
or fail to complete activities of interest to you, e.g., games or art projects”; 3) easily “sidetracked
from your activities or . . . frequently interrupt[ing] others”; 4) “easily frustrated and giv[ing] up
on tasks, including ones you are capable of completing”; and 5) “requir[ing] extra supervision to
keep you engaged in an activity.” Id. § 416.926a(h)(3)(i)-(v).
In addressing this domain, the ALJ concluded Plaintiff had less than marked limitation,
[Plaintiff] was diagnosed with ADHD and ODD. He was described as distracted
when asked to do multistep tasks. Verbal outbursts and repetitive gestures also
distracted him. There were no problems with free time activities. The claimant
was impulsive with difficulty waiting turns and transitioning between activities.
He needed reminders to stay on task at home but he could play with friends or
play video games for a couple of hours at a time.
Again, the ALJ did not find Plaintiff had no limitation in this domain, but rather that it
was less than marked. The contrast drawn by the ALJ between being easily distracted when
doing things Plaintiff did not want to do and being able to focus when doing things he did want
to do strongly supports his conclusion that a limitation in this domain was less than marked. And
it has the support of substantial evidence in the record. See Tr. 206 (teacher note that Plaintiff
“has no problem attending to self-selected or ‘freetime’ activities”); Tr. 70 (summarizing
activities report from March 2013 and noting “Once he understood what [he] needed [t]o, he
required little supervision. He could play for two hours at most at a time. He played well with his
friends. . . . He could play video games for a few hours at a time.”) (citing Tr. 195); Tr. 70
(noting Plaintiff was involved in basketball, baseball, boy scouts, and swimming lessons at
various times) (citing Tr. 481, 577).
In her May 2013 evaluation of this domain, Ms. Gibson opined Plaintiff had an “obvious
problem” in three areas of attending and completing tasks: taking turns, changing activities
without being disruptive, and working without distracting self or others. (Tr. 206). She also
opined, however, that Plaintiff had “no problem” sustaining attention during play/sports
activities, completing assignments, organizing his things, or focusing long enough to finish an
assigned task. Id. Other educational records support this conclusion as well. See Tr. 243 (noting
relatively moderate accommodations to help Plaintiff focus and stay on task); Tr. 241 (Plaintiff’s
attention span and ability to follow instructions “somewhat less” than his classmates; ability to
work independently “about the same” as his classmates). Additionally, in reaching his
conclusions, the ALJ gave considerable weight to the opinion of the state agency physicians who
found Plaintiff had a less than marked limitation in this domain. (Tr. 71) (citing Tr. 120, 130).
To be sure, there is also evidence to support Copeland’s argument—and a contrary
conclusion—in the record, but the Court’s job is to determine whether there is substantial
evidence, that is, “more than a scintilla of evidence but less than a preponderance” such that “a
reasonable mind might accept [it] as adequate to support a conclusion.” Besaw, 966 F.2d at 1030.
This is so even if substantial evidence might support the opposite conclusion. Jones, 336 F.3d at
477. The undersigned finds the ALJ provided such substantial evidence here.
Analysis of Ms. Stanford’s Opinion
Within his argument about the functionality domains, Copeland also contends the ALJ
erred in his analysis of Ms. Stanford’s opinion. The Commissioner responds that the ALJ
properly evaluated Ms. Stanford’s opinion.
Social Security regulations state that “[r]egardless of its source, we will evaluate every
medical opinion we receive.” 20 C.F.R. § 416.927(c). A “medical opinion” is defined by
regulation as a “statement from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of your impairments . . . .” Id. at (s)
416.927(a)(2). “Acceptable medical sources” includes licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists. Id. at (s) 416.913(a)(1)-(5). The relevant Social Security Regulation also explains:
The distinction between “acceptable medical sources” and other health care
providers who are not “acceptable medical sources” is necessary for three reasons.
First, we need evidence from “acceptable medical sources” to establish the
existence of a medically determinable impairment. See 20 CFR 404.1513(a) and
416.913(a). Second, only “acceptable medical sources” can give us medical
opinions. See 20 CFR 404.1527(a)(2) and 416.927(a)(2). Third, only “acceptable
medical sources” can be considered treating sources, as defined in 20 CFR
404.1502 and 416.902, whose medical opinions may be entitled to controlling
weight. See 20 CFR 404.1527(d) and 416.927(d).
Making a distinction between “acceptable medical sources” and medical sources
who are not “acceptable medical sources” facilitates the application of our rules
on establishing the existence of an impairment, evaluating medical opinions, and
who can be considered a treating source.
SSR 06-03p, 2006 WL 2329939, at *2. Opinions from those who are not “acceptable medical
sources”—or as the regulations define them “other sources”—may be used by an ALJ to “show
the severity of [a claimant’s] impairment(s) and how it affects [the claimant’s] ability to work.”
20 C.F.R. (s) 404.913(d); see also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir.
2007). Other source opinions are entitled to consideration by an ALJ, and an ALJ’s decision
should reflect such consideration. Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011); see also
SSR 06-03p, 2006 WL 2329939, at *3 (opinions from “other sources” “are important and should
be evaluated on key issues such as impairment severity and functional effects, along with other
relevant evidence in the file”). In other words, an ALJ “should explain the weight given to [such]
opinions ... or otherwise ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when
such opinions may have an effect on the outcome of the case.” SSR 06-03p, 2006 WL 2329939,
at *6; see also Cruse, 502 F.3d at 541.
However, “SSR 06-03p . . . does not require that an adjudicator articulate ‘good reasons’
for the rejecting of an ‘other source’s’ opinion[,]” as the ALJ must do when discounting an
opinion by a treating source. York v. Comm’r of Soc. Sec., 2014 WL 1213240, at *5 (S.D. Ohio)
(citations omitted); see also Clark ex rel. S.R.C. v. Comm’r of Soc. Sec. Admin., 2013 WL
3007154, at *9 (N.D. Ohio) (“An ALJ is not required to set forth good reasons for rejecting the
opinion of a social worker.”); Steed v. Colvin, 2016 WL 2016 WL 4479485, at *10 (N.D. Ohio)
(noting, in evaluating the ALJ’s treatment of a CPST provider, that “[w]hile the ALJ’s
explanation admittedly could have been more thorough, the explanation requirement,
nevertheless, should not be construed as rigorously as the treating physician rule”) (emphasis in
original). To evaluate other source opinions, an ALJ may apply the factors set forth in 20 C.F.R.
§ 404.1527(c), i.e., length of treatment history; consistency of the opinion with other evidence;
supportability; and specialty or expertise in the medical field related to the individual’s
impairment(s). Adams v. Colvin, 2014 WL 5782993, at *8 (S.D.Ohio).
After summarizing the evidence of record, the ALJ stated:
As for the opinion evidence, the undersigned rejects the medical opinion of Sonia
Stanford, CPST, case manager, regarding the claimant’s marked functional
limitations (Ex. 13F). Her report is not consistent with the findings obtained from
MetroHealth Medical Center, Center for Families and Children, Guidestone, and
the claimant’s school and teachers.
Only acceptable medical sources can be considered as having provided a treating
source opinion that is entitled to controlling weight (20 CFR 404.1527(d) and
416.927(d)). SSR 06-3p clarifies medical sources by noting that information from
these “other sources” cannot establish the existence of a medically determinable
impairment. Instead, there must be evidence from an “acceptable medical source”
for this purpose. However, information from such “other sources” may be based
on special knowledge of the individual that provides insight into the severity of
any impairments and their limiting [e]ffects.
First, the ALJ is correct that Ms. Stanford is not an “acceptable medical source” qualified
to offer a “medical opinion” under the regulations. As the Commissioner points out, the “CPST”
Ms. Stanford signs after her name stands for “Community Psychiatric Supportive Treatment”
and is not a medical title. The Ohio Administrative Code explains that CPST “provides an array
of services delivered by community based, mobile individuals or multidisciplinary teams of
professionals and trained others” where “[s]ervices address the individualized mental health
needs of the client.” Ohio Admin. Code 5122-29-17(A). Elsewhere, Ms. Stanford’s title is “case
worker” (Tr. 565), and in multiple places, she is referred to as a “QMHS”, see Tr. 565, 605. As
noted above, the Ohio Administrative Code defines “Qualified mental health specialist” (QMHS)
as an individual “who is not required to perform duties covered under the scope of practice
according to Ohio professional licensure . . . ” See Ohio Admin. Code 5122–24-01 (Sept. 7,
2011). Ms. Stanford thus does not fall within the definition of an “acceptable medical source”.
Therefore, although the ALJ was required to consider Ms. Stanford’s opinion, he was not—
contrary to the implication in Copeland’s argument—required to give “good reasons” for
rejecting it as he would for a treating physician.
And the ALJ here did consider Ms. Stanford’s opinion. After his thorough discussion of
the record evidence, the ALJ stated he was rejecting Ms. Stanford’s opinion—that Plaintiff had
marked limitations in several domains—because it was inconsistent with the record. This
conclusion is supported by the same substantial evidence cited above. For the same reasons that
the ALJ’s determination that Plaintiff had less than marked limitation in caring for self and
attending and completing tasks is supported by substantial evidence, so is his rejection of Ms.
Stanford’s opinion that Plaintiff’s limitations were marked. The ALJ considered Ms. Stanford’s
opinion as required by the regulations. He was required to do no more, his decision is supported
by substantial evidence, and rejection of the opinion was not error.
Sentence Six Remand
Copeland’s final contention is that remand is required under sentence six of 42 U.S.C. §
405(g) in light of new and material evidence, namely, additional evidence from Ohio
Guidestone. The Commissioner responds that the evidence is not material, and that claimant has
not demonstrated good cause.
A claimant must establish two prerequisites before a district court may order a sentence
six remand. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483-84 (6th Cir. 2006). A claimant
must show: 1) the evidence at issue is both “new” and “material”; and 2) there is “good cause for
the failure to incorporate such evidence into the record in a prior proceeding”. 42 U.S.C. §
405(g); see also Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Evidence is new
only if it was “not in existence or available to the claimant at the time of the [prior]
administrative proceeding”. Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). Evidence is
material only if there is “a reasonable probability that the [Commissioner] would have reached a
different disposition of the disability claim if presented with the new evidence.” Sizemore v.
Sec’y of Health & Human Servs., 865 F.2d 709, 711. (6th Cir. 1988). A post-decision evaluation
is not material if it is cumulative of evidence already in the record, or if it merely shows a
worsening condition. Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 277–78 (6th Cir. 2010);
see also Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230. 1233 (6th Cir. 1993)
(evidence not material where it shows “no marked departure from previous examinations”).
The party seeking remand bears the burden of showing the two requirements are met.
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Additionally, the Sixth Circuit takes “a
harder line on the good cause test” requiring a claimant “give a valid reason for his failure to
obtain evidence prior to the hearing.” Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 725
(6th Cir. 2012) (quoting Oliver v. Sec’y of Health & Hum. Servs., 804 F.2d 964, 966 (6th Cir.
Here, Copeland seemingly points to two sets of allegedly new and material records. As to
the evidence that post-dates the ALJ’s decision, see Tr. 7-49, the undersigned agrees with the
Appeals Council (and the Commissioner) that such evidence is not material. See Oliver, 804 F.2d
at 966 (evidence from a later date not material to claimant’s capabilities at the time of the ALJ’s
decision); Ferguson, 628 F.3d at 277-78 (evidence is immaterial if it does not speak to a
claimant’s condition at the relevant time); see also Tr. 2 (Appeals Council statement that “[t]his
new information is about a later time. Therefore, it does not affect the decision about whether
you were disabled beginning on or before March 11, 2015.”).
As to the other evidence submitted to the Appeals Council10, see Tr. 628-96, the
undersigned agrees with the Commissioner that it is not material.11 Copeland points to references
10. The Appeals Council did not directly address this evidence in its written decision, but did
acknowledge it made the evidence part of the record. See Tr. 5.
in these records regarding Plaintiff having difficulty managing anger, behavioral problems at
school, difficulty with homework, focus, and following directions, being disrespectful, and
depressive symptoms. (Doc. 15, at 21) (citing Tr. 635, 643-45, 647, 649, 652-53, 655, 661, 66567, 669-70). As a whole, these are not materially different than the records considered by the
ALJ. See Tr. 68-76 (ALJ’s consideration of records including, inter alia, tantrums, aggressive
behavior, behavioral problems at school, yelling at his parents, refusing to complete school work,
being easily distracted, and poor cooperation). Thus, as this evidence is merely cumulative of the
evidence the ALJ considered, it is not material. See Ferguson, 628 F.3d at 277–78; Casey, 987
F.2d at 1233 (evidence is not material where it shows “no marked departure from previous
11. Because the undersigned finds the evidence is not material, there is no need to address
whether the evidence is “new” or whether there was “good cause” for failure to submit it earlier.
12. Although there is a single reference in the additional notes to “depressive symptoms” (Tr.
635) (note from Kristen Miceli, Case Worker) an allegation not considered by the ALJ, the
undersigned finds the Commissioner’s argument that this is not material well-taken. Ms. Miceli
is not a specialist (her title is “case worker”) and this is a single isolated reference in the record
not supported by other medical evidence, or a diagnosis of depression. See Glasco v. Comm’r of
Soc. Sec., 645 F. App’x 432, 437 (6th Cir. 2016) (“This single reference to depression by a nonspecialist without supporting medical evidence does not make it reasonably probable that the
ALJ, who acknowledged similar references to a history of depression in the existing
administrative record, would come to a different result on remand.”). Although, unlike Glasco,
the ALJ here did not have other references to a history of depression, there is also no medical
evidence in the record to support a diagnosis of depression. And, moreover, there is only an
single reference to “depressive symptoms” without a diagnosis of depression. See id. at 437
(noting the physician’s “purported ‘diagnosis’ of depression was formed without the support of
any medically acceptable clinical and laboratory diagnostic techniques.”); see also Sizemore, 865
F.2d at 711–12 (medical assessment unsupported by “specific laboratory test or diagnostic
procedure” is not entitled to deference and therefore would not make different result reasonably
probable on remand). Therefore, this evidence is not material because it does not show “a
reasonable probability that the [Commissioner] would have reached a different disposition of the
disability claim if presented with the new evidence.” Sizemore, 865 F.2d at 711.
Thus, the undersigned concludes Copeland has not satisfied his burden to show “a
reasonable probability that the [Commissioner] would have reached a different disposition of the
disability claim if presented with the new evidence.” Sizemore v. Sec’y of Health & Human
Servs., 865 F.2d 709, 711. (6th Cir. 1988). As such, the request for a sentence six remand is
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision to deny SSI supported by substantial evidence.
Accordingly the decision of the Commissioner is affirmed.
IT IS SO ORDERED
s/James R. Knepp II
United States Magistrate Judge
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