Kilcrease v. Social Security Administration, Commissioner of

Filing 26

MEMORANDUM AND ORDER. it is ORDERED that: Plaintiffs motion for summary judgment [Doc. 22] is DENIED;The Commissioners motion for summary judgment [Doc. 24] is GRANTED;and The Commissioners decision denying benefits is AFFIRMED. Signed by Magistrate Judge Susan K Lee on 3/9/2018. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
ARTHEA KILCREASE,
on behalf of M.L.D.B.,

)
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

No. 4:16-cv-85-SKL

MEMORANDUM AND ORDER
Plaintiff Arthea Kilcrease (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying her minor son supplemental security income (“SSI”).
Each party has moved for judgment [Docs. 22 & 24] and filed supporting briefs [Docs. 23 & 25].
This matter is now ripe. For the reasons stated below, (1) Plaintiff’s motion for summary judgment
[Doc. 22] will be DENIED; (2) the Commissioner’s motion for summary judgment [Doc. 24] will
be GRANTED; and the decision of the Commissioner will be AFFIRMED.
I.

ADMINISTRATIVE PROCEEDINGS
Plaintiff, acting on behalf of her minor son (“Claimant”), filed an application for SSI on

December 6, 2012 [Doc. 14 (“Tr.”) at Page ID # 184-200], alleging Claimant’s disability began
March 22, 2012 (Tr. 12, 126). Plaintiff’s claim was denied initially and upon reconsideration at
the agency level. After a hearing was held August 3, 2015, the administrative law judge (“ALJ”)
found on December 18, 2015, that Claimant was not under a disability as defined in the Social
Security Act (Tr. 12-26). The Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner (Tr. 1-5). Plaintiff timely filed the instant

action [Doc. 1].
II.

FACTUAL BACKGROUND
A.

Medical Records

Claimant was born in 2006, making him a child under age 18 (Tr. 126). In a Child
Disability Report, Plaintiff alleged Claimant was disabled due to a developmental disorder,
possibly autism (Tr. 149). Plaintiff [Doc. 23 at Page ID # 477-86] and the ALJ (Tr. 15-19) set
forth a detailed, factual summary of Claimant’s medical record, school record, and the hearing
testimony. Defendant generally adopts the facts as set forth by the ALJ [Doc. 25 at Page ID #
503], but includes extensive citation to the record throughout her argument [id. at Page ID # 50515].
B.

Hearing Testimony

A video teleconference hearing occurred on August 3, 2015, at which Claimant and
Plaintiff testified (Tr. 30-64). The Court has carefully reviewed the transcript of the testimony.
III.

ELIGIBILITY AND THE ALJ’S FINDINGS
A.

Eligibility

A child will be considered disabled if he has a “medically determinable physical or mental
impairment, which results in marked and severe functional limitations.”
1382c(a)(3)(C).

42 U.S.C. §

To determine whether a child’s impairments result in marked and severe

limitations, Social Security Administration (“SSA”) regulations prescribe a three-part evaluation:
(1)

A child will be found “not disabled” if he engages in substantial gainful activity.

(2)

A child will be found “not disabled” if she does not have a severe impairment or
combination of impairments.

(3)

A child will be found “disabled” if she has an impairment or combination of
2

impairments that meets, medically equals, or functionally equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
20 C.F.R. § 416.924(a)-(d).
To determine whether a child’s impairments functionally equal a listing, the SSA assesses
the functional limitations caused by the child’s impairments. 20 C.F.R. § 416.926a(a). To do so,
the SSA considers how a child functions in six domains:
(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.

20 C.F.R. § 416.926a(b)(1). If a child’s impairments result in “marked” limitations in two
domains, or an “extreme” limitation in one domain, the impairment functionally equals the listings,
and the child is considered disabled. 20 C.F.R. § 416.926a(d). The SSA will find a “marked”
limitation in a domain when a child’s impairments “interferes seriously” with the child’s ability to
“independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2). It is the
equivalent of the functioning the SSA expects “to find on standardized testing with scores that are
at least two, but less than three, standard deviations below the mean.” Id. Extreme limitations
interfere “very seriously” with the child’s ability to “independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(3). It is the equivalent of the functioning the SSA expects
“to find on standardized testing with scores that are at least three standard deviations below the
mean.” Id.
3

B.

The ALJ’s Findings

The ALJ found Claimant was a preschooler on the date his application was filed and was
a school-age child at the time the ALJ issued his decision; that Claimant had not engaged in
substantial gainful activity since December 6, 2012, the date the application was filed1; and that
Claimant

suffered

from

the

following

severe

impairments:

borderline

intellectual

functioning/developmental delay (“BIF”), and an anxiety-related disorder/post-traumatic stress
disorder (“PTSD”) (Tr. 15). Next, the ALJ found that Claimant’s impairments did not meet or
medically equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
(Tr. 15). The ALJ further found that Claimant’s impairments did not functionally equal the listings
because Claimant did not have an impairment or combination of impairments that resulted in two
marked limitations or one extreme limitation in the applicable domains of functioning (Tr. 16-26).
More specifically, the ALJ found that Claimant has marked limitation in the domain of interacting
and relating with others, but “less than marked” limitation in the remaining five domains.
Therefore, the ALJ found Claimant was not disabled under section 1614(a)(3)(C) of the Social
Security Act (Tr. 26).
IV.

ANALYSIS
Plaintiff asserts this matter should be remanded under sentence four for further

administrative proceedings, including a de novo hearing and decision, for several reasons: (1) “The
ALJ’s functional equivalence finding was the product of legal error and was not supported by
substantial evidence,” (2) “The ALJ’s listing analysis was not supported by substantial evidence

1

SSI applicants are not entitled to benefits until “the month following the month” that the
application is filed, regardless of the date of alleged disability onset. 20 C.F.R. § 416.335.
4

and was the product of legal error in that it fails to consider whether Claimant met or equaled
Listing 112.05,” and (3) “The ALJ’s adverse credibility determination was not supported by
substantial evidence.” [Doc. 23 at Page ID # 474].
A.

Standard of Review

The Social Security Act authorizes “two types of remand: (1) a post judgment remand in
conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner]
(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (Citing
42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter, upon
the pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a hearing.” 42 U.S.C. § 405(g).
Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is reversal and
a sentence-four remand for further consideration.” Morgan v. Astrue, No. 10-207, 2011 WL
2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (internal citations omitted). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
McClanahan, 474 F.3d at 833 (internal citations omitted). Furthermore, the evidence must be
“substantial” in light of the record as a whole, “tak[ing] into account whatever in the record fairly
detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (internal citations
5

omitted). If there is substantial evidence to support the Commissioner’s findings, they should be
affirmed, even if the court might have decided facts differently, or if substantial evidence would
also have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v.
Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not re-weigh evidence, resolve
conflicts in evidence, or decide questions of credibility. Garner, 745 F.2d at 387. The substantial
evidence standard allows considerable latitude to administrative decision makers because it
presupposes “there is a ‘zone of choice’ within which the Commissioner can act, without the fear
of court interference.” McClanahan, 474 F.3d at 833 (quoting Buxton v. Halter, 246 F.3d 762, 772
(6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been cited
by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may
not, however, consider any evidence that was not before the ALJ for purposes of substantial
evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is
under no obligation to scour the record for errors not identified by the claimant, Howington v.
Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that
assignments of error not made by claimant were waived), and arguments not raised and supported
in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of Soc. Sec., No.
1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey,
125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further
argument or authority may be considered waived).
B.

The ALJ’s Listing Analysis

Plaintiff argues the ALJ erred in failing to specifically explain why Claimant did not meet
6

the requirements for Listing 112.05, intellectual disability, particularly sections (D) and (E). True,
the ALJ did not provide any specific analysis at Step Three concerning whether Claimant’s
conditions met or medically equaled a Listing; instead, he wrote that Plaintiff “does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and
416.926),” and then provided an in-depth explanation of why Claimant’s impairments did not
functionally equal a listing (Tr. 15). Plaintiff is also correct that the Sixth Circuit has held that
such a limited step three analysis can be insufficient and require remand. See Reynolds v. Comm’r,
424 F. App’x 411, 416 (6th Cir. 2011) (citations omitted) (“In short, the ALJ needed to actually
evaluate the evidence, compare it to Section 1.00 of the Listing, and give an explained conclusion,
in order to facilitate meaningful judicial review. Without it, it is impossible to say that the ALJ’s
decision at Step Three was supported by substantial evidence.”) And, had the ALJ’s decision not
contained any further analysis elucidating the reasons why he found Claimant did not meet the
requirements of Listing 112.05, remand would likely be appropriate. However, as explained
below, that is simply not the case here.
At the time of the ALJ’s decision, Listing 112.05(D) and (E) both required “significantly
subaverage general intellectual functioning” with “deficits in adaptive functioning,” and a “valid
verbal, performance or full scale IQ of 60 through 70.”2 Section D also required a “physical or

2

The regulation has been updated since this case began. See 81 Fed. Reg. 66,138-01, 2016 WL
5341732, at *66149-50 (Sept. 26, 2016). Intellectual disability is now referred to as “intellectual
disorder.” The revisions were not in effect at the time Plaintiff applied for DIB or when the ALJ
rendered his decision. Regardless, the new regulations still require that a claimant have
significantly subaverage intellectual functioning and significant deficits in current adaptive
functioning. Id. at *66169.
7

other mental impairment imposing an additional and significant limitation of function,” and section
E also required a marked impairment in age-appropriate social functioning, a marked impairment
in age-appropriate personal functioning, or marked difficulties in maintaining concentration,
persistence or pace.
Claimant has a full scale IQ of 70, as found by the consultative examiner (Tr. 184). Further,
the ALJ found that Claimant had a marked limitation in interacting and relating with others, which
tends to support a finding of disability under Listing 112.05(D) or (E). However, as stated, under
either (D) or (E), Claimant must also have “significantly subaverage general intellectual
functioning.”

Here, rather than “significantly subaverage,” the ALJ found that Claimant

functioned in the borderline range (Tr. 15). Plaintiff argues that Claimant’s full-scale IQ score of
70, “combined with regularly approved IEP3 and educational records codifying his special
education and educational accommodations demonstrate Claimant’s ‘significantly subaverage
general intellectual functioning’ under Listing 112.05.” [Doc. 23 at Page ID # 496 (citations
omitted)].
The United States Court of Appeals for the Sixth Circuit has specifically found that
functioning in the borderline range is not sufficient to meet the requirement of significantly
subaverage general intellectual functioning found in Listing 112.05. Barnett ex rel. D.B. v.
Comm’r or Soc. Sec., 573 F. App’x 461, 463 (6th Cir. 2014). In that case, Barnett argued that
D.B. met the requirements for Listing 112.05(D) primarily in reliance on D.B.’s diagnosis of BIF
and D.B.’s IQ scores. The Sixth Circuit rejected the argument, reasoning:
The key problem with Barnett’s argument is that D.B.’s
general intellectual functioning is not “significantly subaverage.”
3

An IEP is an Individual Education Program (Tr. 197).
8

No “evaluating mental health professional” or “school
psychologist[]” has ever diagnosed D.B. with mental retardation.
Every psychological expert, to the contrary, concluded that he fell
within the “borderline” (and not “significantly subaverage”) range.
...
Barnett offers three rejoinders to this conclusion. First, she
points out that D.B.’s verbal and perceptual IQ scores of 65 and 92,
respectively, place him in the first and thirtieth percentiles of his
peers. These low scores, she claims, satisfy 112.05(D)’s first
requirement [of significant subaverage intellectual functioning] as a
matter of law. But this interpretation collapses the Listing’s first
requirement (significantly subaverage general intellectual
functioning) into its third (an IQ score between 60 and 70). It
therefore runs afoul of the interpretive canon that requires us to try
to give meaning to every word in a statute or regulation.
This argument also contradicts our precedents, published
and unpublished alike.
Consider Elam ex rel. Golay v.
Commissioner of Social Security, 348 F.3d 124 (6th Cir. 2003), a
nearly identical case. The child’s IQ scores in Elam were low
enough to support a finding of mental retardation, but evaluating
experts concluded that she demonstrated borderline intellectual
functioning. Id. at 126-27. Highlighting the experts’ opinions, we
affirmed the denial of benefits because it was supported by
substantial evidence. Id. at 127.
To be clear, an ALJ may consult IQ scores in evaluating
intellectual functioning. But equating a low IQ score with
“significantly subaverage” intellectual functioning overstates the
relevance of the score. . . .
Second, Barnett makes the more modest point that D.B.’s IQ
scores are low enough to justify a finding of “significantly
subaverage generally intellectual functioning.” But this argument
enters the forbidden field of re-weighing the evidence. We must
“accept the agency’s factual finding[]” when it is supported by
substantial evidence, even when substantial evidence could justify a
different result. Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct.
1046, 117 L. Ed. 2d 239 (1992). The ALJ’s decision fell within the
zone of substantial evidence.
Third, Barnett faults the ALJ for thinking that a diagnosis of
mental retardation is the only way to satisfy 112.05(D)’s first prong.
9

Yet the ALJ did no such thing. He surveyed the record and found
that every expert had described D.B.’s intellectual functioning as
“borderline,” not “significantly subaverage.”
Id. at 463-64 (emphasis and most alterations in original; some internal citations omitted). Here,
similarly, no medical professional has ever diagnosed Plaintiff with any more serious mental
impairment than BIF.
Plaintiff correctly points out that the ALJ does not actually discuss or assign weight to the
medical opinions of the consultative examiner and the State agency consultants in his decision.
The Court finds this is harmless error, however, because the medical opinions do not support a
finding of disability, nor do they support a finding of any greater impairment than that found by
the ALJ. See Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009) (“[I]f an agency
has failed to adhere to its own procedures, we will not remand for further administrative
proceedings unless the claimant has been prejudiced on the merits or deprived of substantial rights
because of the agency’s procedural lapses.” (internal quotation marks and citation omitted)). The
State agency consultants found that Claimant had BIF, with less than marked limitations in all
functional domains (Tr. 69-71, 81-83). Plaintiff seems to argue both that these opinions should
have been discussed by the ALJ and that the Court should not consider any post hoc
rationalizations about the opinions because the state agency consultants did not have the benefit of
the full medical records from Centerstone, a behavioral healthcare center where Claimant received
a significant amount of his treatment [Doc. 23 at Page ID # 491-92 n.2]. Nevertheless, upon the
ALJ’s own review of Claimant’s Centerstone record, the ALJ found Claimant was more limited
than the State agency consultants, and even more limited than found by the one-time consultative
examiner, E-Ling Cheah, Psy.D., H.S.P., as the ALJ found that Claimant was markedly impaired
10

in the domain of interacting and relating with others (Tr. 22-23).
Moreover, the ALJ did discuss the opinion of Dr. Cheah (Tr. 17, 19 & 23). Dr. Cheah
specifically found that Claimant’s “general cognitive ability is within the Borderline range of
intellectual functioning,” diagnosing him with an IQ of 70 (Tr. 184). Dr. Cheah further found that
Claimant had no more than moderate impairments in his memory, his ability to sustain
concentration, his ability to adapt to change, and in social relating (Tr. 187). The IQ score of 70
does not per se qualify Claimant for Listing 112.05(D) or (E), particularly considering Dr. Cheah
specifically found that Claimant had only BIF (rather than a more serious impairment), with no
more than moderate functional limitations. The ALJ discussed Dr. Cheah’s findings and diagnoses
in detail (Tr. 17, 19, 23), even if he did not explicitly assign them any particular weight. The ALJ’s
decision makes clear that he implicitly credited Dr. Cheah’s opinion in part, by finding Claimant
had BIF, and in finding that one of Claimant’s most serious issues was his inability to socially
relate to other people.4 Significantly, no medical professional ever diagnosed Plaintiff with a more
serious mental impairment than BIF, and Claimant’s IQ score of 70 alone is insufficient to support
a finding of significantly subaverage general intellectual functioning as required for Listing
112.05.
Plaintiff also argues that Claimant’s “regularly approved IEP and educational records
codifying his special education and educational accommodations demonstrate Claimant’s
‘significantly subaverage general intellectual functioning.’” [Doc. 23 at Page ID # 496]. However,

4

The Court notes that the ALJ incorrectly stated that Dr. Cheah found Claimant’s full scale IQ to
be 58 (Tr. 17). The sum of Claimant’s scaled scores was 58, and Dr. Cheah calculated Claimant’s
composite score to be 70. The Court finds no harmful error with this mistake by the ALJ, as the
ALJ otherwise correctly detailed Dr. Cheah’s diagnosis and findings.
11

the fact that Claimant was in special education does not equate with a finding that he has
significantly subaverage general intellectual functioning. See Barnett, 573 F. App’x at 463
(claimant enrolled in special education but did not qualify for Listing 112.05). And, the content
of the IEPs themselves show Claimant progressed in school, with his most recent IEP from
September 2015 noting that his resource teacher shared that he had “grown and blossomed,” his
reading “has progressed greatly and he is much more motivated to work hard at school.” (Tr. 369).
His speech teacher recommended that he be dismissed from language services, noting that he “is
able to express his wants and his communication needs can be met in the general education
setting,” and his occupational therapist also found that he no longer qualified for occupational
therapy services because he had “progressed and met all goals.” (Tr. 369). The ALJ discussed and
clearly considered the September 2015 IEP in his decision (Tr. 19, 23). An earlier IEP from
September 2013 noted improvement (Tr. 373), and even in 2011, his teachers found that his
“overall cognitive ability fell within normal limits.” (Tr. 374). The ALJ explicitly discussed the
2013 IEP, and the ALJ further found that “treating sources, teachers and the claimant’s mother
have all admitted the claimant’s abilities improve when he is on prescribed medication.” (Tr. 19).
The ALJ did not commit harmful error in failing to specifically explain why Claimant did
not meet all the requirements of Listing 112.05. It is clear from the ALJ’s decision that he found
Claimant had BIF, not a more serious mental impairment that would support a finding of
significantly subaverage general intellectual functioning, and that finding is supported by
substantial evidence in the record. The fact that the ALJ included this analysis in his discussion
of functional equivalence rather than earlier in the decision is also not harmful error. Forrest v.
Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014) (citation omitted) (finding no error
12

where “the ALJ made sufficient factual findings elsewhere in his decision to support his conclusion
at step three”); see also Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006) (In affirming
the ALJ’s decision, the court noted that the ALJ “described evidence pertaining to all impairments,
both severe and non-severe, for five pages earlier in his opinion and made factual findings,” and
affirmed “even though [the ALJ] did not spell out every fact a second time under the step three
analysis.”); Kado v. Colvin, No. 1:15-cv-02044-DAP, 2016 WL 6067779, at *8 (N.D. Ohio Oct.
17, 2016) (citing Bledsoe, 165 F. App’x at 411; other citations omitted) (“If at Step Three the ALJ
does not provide meaningful analysis in concluding whether the claimant’s impairment ‘meets or
equals’ any of the listings in the Listing of Impairments, the Court may look at the ALJ’s decision
in its entirety to see if the ALJ made sufficient factual findings to support his conclusion.”).
Accordingly, the Court finds Plaintiff’s argument on this issue is without merit, and her
motion will be denied in this regard.
C.

The ALJ’s Functional Equivalence Determination

Plaintiff also argues the ALJ’s functional equivalence determination “was the product of
legal error and was not supported by substantial evidence.” [Doc. 23 at Page ID # 487]. Because
the ALJ found Claimant had a marked limitation in the domain of interacting and relating with
others (Tr. 23), a finding of a marked limitation in any of the other remaining five domains would
result in a favorable determination for Claimant. Plaintiff argues the ALJ “reversibly erred because
Claimant exhibited marked impairments in the first domain of acquiring and using information
and the second domain of attending and completing tasks.” [Doc. 23 at Page ID # 490]. Regarding
these two domains, the ALJ wrote:
The claimant has less than marked limitation in acquiring and using
information. In an agency questionnaire completed January 2013,
13

the claimant’s motion indicated her son had difficulty delivering
simple messages such as telephone messages and he was unable to
recite his numbers or define common words; however, she noted the
claimant used complete sentences most of the time, took part in
conversations with other children and told about things and
activities that happened in the past (Ex. 3E). As noted above, the
claimant received speech and language therapy which appeared to
immediately make a difference in his language. The psychological
consultant indicated the claimant recalled and understood
instructions in January 2013, and that he worked at an appropriate
pace and persisted on tasks without encouragement (Ex. 1F). The
claimant was also involved in an IEP for reading inclusion, math
inclusion and reading lab and teachers indicated much improvement
(Ex. 9F).
(Tr. 20).
The claimant has less than marked limitation in attending and
completing tasks. The claimant’s mother reported her son had
difficulty paying attention in January 2013, for even 15 minutes to
the television, music, reading aloud and playing games (Ex. 3E).
Teachers noted the claimant was easily distracted but improved with
use of a token reward system (Ex. 9F). Records from Centerstone
show the claimant has had difficulty being easily distracted and had
to be redirected at times to focus on the task at hand. However,
sources noted the claimant earned computer time for listening,
participating and being able to use self-control (Ex. 8F). In fact, the
claimant’s mother stated her son had been able to focus and
concentrate without difficulty in April and May of 2015 (Ex. 8F).
Therefore, although the claimant may experience some difficulty
focusing, the record shows much improvement with medication and
award system.
(Tr. 21-22).
Plaintiff first argues the ALJ erred by not explicitly including a discussion of the weight he
assigned to the opinion evidence. However, as discussed above, it is clear the ALJ considered and
partially credited the opinion of Dr. Cheah, the consultative examiner. And, in any event, neither
Dr. Cheah’s opinion nor the opinion of the state consultative examiners supports a finding of any
greater limitation than BIF. With regard to attending and completing tasks, Dr. Cheah found that
14

while Claimant showed evidence of a moderate impairment in his ability to sustain concentration,
his “attention and concentration appeared appropriate throughout the evaluation,” and he “worked
at an appropriate pace and persisted on tasks without encouragement.” (Tr. 186).
Plaintiff emphasizes that Dr. Cheah diagnosed an IQ score of 70 for Claimant. She points
out that the regulations provide that a “marked limitation” in children under eighteen is “the
equivalent of 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.” 20 C.F.R. § 416.926a(e)(2).
The regulations further provide that “we will find that you have a ‘marked’ limitation when you
have a valid score that is two standard deviations or more below the mean . . . on a comprehensive
standardized test designed to measure ability or functioning in that domain, and your day-to-day
functioning in domain-related activities is consistent with that score.” Id. Finally, the regulations
provide that the SSA may find a claimant has a marked limitation even where his test scores are
slightly higher than two standard deviations below the mean if “other evidence shows that your
impairment(s) causes you to function in school, home, and the community far below your expected
level of functioning based on this score”; but on the other hand, where a claimant does have
sufficiently low test scores, but “other information in your case record shows that your functioning
in day-to-day activities is not seriously or very seriously limited by your impairment(s).” Id. §
926a(e)(4). The clear import of the regulations is that it is the claimant’s ability to function that is
more significant than the actual IQ score.
Plaintiff argues “[b]ecause the IQ testing alone was indicative of a marked impairment, the
ALJ’s failure to weigh the opinion of Dr. Cheah constitutes harmful reversible error.” [Doc. 23 at
Page ID # 491]. Plaintiff contends that the IQ score of 70 is more than two standard deviations
15

below the mean, and therefore the ALJ erred in not finding Claimant had a marked limitation in
acquiring and using information.
Even assuming Plaintiff is correct that an IQ of 70 is more than two standard deviations
below the mean, and assuming that a full scale IQ is designed to measure ability or functioning in
acquiring and using information, the Court finds no error with the ALJ’s finding that Claimant has
a less than marked limitation in this domain.
As noted, the same doctor who diagnosed Claimant with a 70 IQ found that he functioned
in the borderline range, and that he was able to follow simple spoken instructions. His teachers
noted that by September 2015 he was “reading very well,” was able to “express his wants,” and
can even have his “communication needs” met in a regular classroom, versus a special education
classroom (Tr. 369). His educators also wrote that he was “able to retell stories using sequencing
vocabulary, compare and contrast stories and events, and can carry an appropriate conversation
about a topic with mastery.” (Tr. 373). These are all relevant considerations in determining a
claimant’s limitations in acquiring and using information, and provide substantial support for the
ALJ’s finding that Claimant has a less than marked limitation in this domain. See 20 C.F.R. §
416.926a(g) (e.g., For school age children, “[y]ou should be able to use increasingly complex
language (vocabulary and grammar) to share information and ideas with individuals or groups, by
asking questions and expressing your own ideas, and by understanding and responding to the
opinions of others.”). The ALJ clearly relied on these reports, and did not issue his own medical
findings, as Plaintiff contends.
As for the domain of attending and completing tasks, Plaintiff argues the ALJ erred in not
finding a marked limitation because the ALJ relied on the fact that Claimant’s condition improved
16

with medication [Doc. 23 at Page ID # 492-93]. Plaintiff argues, that the “medical evidence from
Centerstone, which included the observations of therapists during classroom activities, far from
establishes such definitive improvement.” [Id. at 492].
The Court rejects Plaintiff’s arguments. The same September 2015 IEP discussed above
notes that Claimant was “much more motivated to work hard at school.” (Tr. 369). As the ALJ
points out, Claimant’s improvement while taking his medication as prescribed is evidenced by
statements from his medical providers as well as from Plaintiff, and is further evidenced by the
fact that the prescriber, Dr. John Kirk, did not change the dosage over a period of several months,
despite seeing Plaintiff once per month for medication management (see Tr. 273, 277, 287, 294,
305).
Finally, Plaintiff makes a passing argument that Claimant is entitled to a closed period of
benefits because, Plaintiff argues, Claimant’s improvement with medication did not begin until
November 2014 [Doc. 23 at Page ID # 493]. The Court rejects this argument, first, because it is
not properly addressed, and arguments not raised and supported in more than a perfunctory manner
may be considered waived. Woods v. Comm’r of Soc. Sec., No. 1:08-CV-651, 2009 WL 3153153,
at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.
1997)).5 Moreover, even in January 2013, Claimant had only moderate symptoms relating to this

5

The one case Plaintiff cites in support of her argument for a closed period of benefits is readily
distinguishable, as it involves a claimant who was a severe alcoholic and shot himself twice (nearly
dying) before being hospitalized and going to rehab. Mohr v. Bowen, 845 F. 2d 326 (6th Cir.
1988). The court remanded for consideration of a closed period of benefits for the time during
which the claimant was hospitalized following the attempted suicide, through the dates of two
subsequent hospitalizations. The court concluded that there was substantial evidence to support
the Commissioner’s finding that the claimant could perform his past relevant work as of the date
of the administrative hearing, which was approximately seven months after the last known date of
hospitalization. Id. at *1-2.
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domain, including sustaining concentration (Tr. 187). And, the IEP records show improvement in
September 2013 with the “use of a token reward system.” (Tr. 373).
For these reasons, the Court finds the ALJ’s functional equivalence findings are supported
by substantial evidence and are not the product of legal error. Plaintiff’s motion will be denied in
this regard.
D.

The ALJ’s Credibility Determination/Use of video teleconferencing (VTC)

Concerning credibility issues, the ALJ found:
After considering the evidence of record, I find the
claimant’s medically determinable impairments could reasonably be
expected to produce the alleged symptoms; however, the statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained below.
In terms of the claimant’s alleged ADHD, the record shows
the claimant has experienced some difficulty with attention and
focus due to his condition; however, treating sources, teachers and
the claimant’s mother have all admitted the claimant’s abilities
improve when he is on prescribed medication. I also note Dr. Kirk,
who has prescribed the claimant’s medication, has not altered his
medication regime (Ex. 8F). Therefore, it is obvious the claimant’s
functioning is improved with compliance of prescribed medication.
(Tr. 19).
“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.” Walters v. Comm’r, 127 F.3d 525, 531 (6th Cir. 1997). Despite the
deference that is due, such a determination must nevertheless be supported by substantial evidence.
Id. An ALJ’s credibility determination must contain “specific reasons . . . supported by the
evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
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reasons for that weight.” SSR 96-7p.6
Plaintiff argues the ALJ improperly faulted Claimant for not following his prescribed
treatment regime. Plaintiff misreads the ALJ’s decision. The ALJ did not discount Claimant’s
credibility because Claimant, a child, has failed to take his medication as prescribed. Rather, the
ALJ finds that Claimant’s symptoms are not as severe as Plaintiff alleges because Claimant’s
symptoms can be, and have been, improved through the use of medication. As the ALJ points out,
Claimant’s improvement while taking his medication as prescribed is evidenced by statements
from his medical providers as well as from Plaintiff, and is further evidenced by the fact that the
prescriber, Dr. John Kirk, did not change the dosage over a period of several months, despite seeing
Plaintiff once per month for medication management (see Tr. 273, 277, 287, 294, 305). Moreover,
the “type, dosage, effectiveness, and side effects of any medication taken to alleviate . . .
symptoms” is an appropriate factor for an ALJ to consider when determining the credibility of a
claimant’s statements, or in this case, primarily the statements of the Claimant’s mother. See 20
C.F.R. § 416.929(c)(3); see also Felisky v. Bowen, 35 F.3d 1027, 2039-40 (6th Cir. 1994) (applying
credibility factors).
As part of her credibility argument, Plaintiff argues that the case should be remanded
because the administrative hearing was conducted by video teleconferencing (sometimes, “VTC”).

6

The SSA published SSR 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation of
Symptoms in Disability Claims, which supersedes and rescinds SSR 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements. SSR 16-3p eliminates the use of the term “credibility” from SSA
policy because SSA regulations do not use this term, and subjective symptom evaluation is not an
examination of a claimant’s character. See SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16, 2016).
SSR 16-3p took effect in March 2016, several months after the ALJ issued the decision, and it
therefore does not apply in this case, nor does Plaintiff argue that it should.
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SSA regulations provide that:
(d) Objecting to appearing by video conferencing. Prior to
scheduling your hearing, we will notify you that we may schedule
you to appear by video teleconferencing. If you object to appearing
by video teleconferencing, you must notify us in writing within 30
days after the date you receive the notice. If you notify us within
that time period and your residence does not change while your
request for hearing is pending, we will set your hearing for a time
and place at which you may make your appearance before the
administrative law judge in person.
(1) Notwithstanding any objections you have to appearing
by video teleconferencing, if you change your residence
while your request for hearing is pending, we may determine
how you will appear, including by video teleconferencing . .
. . For us to consider your change of residence when we
schedule your hearing, you must submit evidence verifying
your new residence.
20 C.F.R. § 416.1436(d).
As Plaintiff explains in her brief, after Claimant’s application was denied, initially and on
reconsideration, Plaintiff requested a hearing before an ALJ. The SSA acknowledged receipt of
Plaintiff’s request on October 24, 2013. It does not appear that the SSA ever notified Plaintiff that
it would schedule her and Claimant to appear via VTC. Plaintiff, however, “preemptively
objected” to appearance by VTC on October 6, 2014 (Tr. 114). Plaintiff’s objection asks the SSA
to “please schedule my hearing so that I may appear in person.” (Tr. 114). The next pertinent
document in the record is a “Notice of Hearing-Important Reminder,” sent by the SSA to Plaintiff
on July 20, 2015 (Tr. 120). It states that the SSA had recently mailed a hearing notice to Plaintiff,
which requested that Plaintiff sign and return an acknowledgement form. Plaintiff does not
contend that she never received the original hearing notice, but she does point out that the original
hearing notice is not in the record before the Court [Doc. 23 at Page ID # 476]. The July 20, 2015,
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follow up “Important Reminder” notice makes no mention of the use of VTC in Plaintiff’s case.
Plaintiff did change residences, at least once, while awaiting her hearing notice. As the
regulation quoted above provides, the SSA may require claimants to appear by VTC if they move
during the pendency of their claim. As far as the Court can glean from the record before it,
however, the SSA never formally overruled Plaintiff’s objection to the use of VTC, or even
informed Plaintiff that it would require her to appear by VTC. This is troubling, but the Court
nevertheless will reject Plaintiff’s argument because Plaintiff did not object to the use of VTC in
response to the “Notice of Hearing-Important Reminder” document or at the actual hearing, which
indicates that she and her attorney at the time acquiesced in the use of VTC. While the Court
would not require a claimant to refuse to participate in a hearing in order to preserve an objection
to the use of VTC, some mention by Plaintiff or her counsel should have been raised at the hearing
in order for current counsel to credibly complain about it now.
Moreover, the two cases Plaintiff cites in support of her argument that the use of VTC in
her case is harmful error involve testimony offered by a vocational expert via telephone, not video
conferencing, and are therefore readily distinguishable, because SSA regulations do not
specifically allow for testimony via telephone the way they do for video conferencing. See
Koutrakos v. Astrue, 906 F. Supp. 2d 30 (D. Conn. 2012); Decker v. Comm’r of Soc. Sec., No.
2:12-CV-0454, 2016 WL 193664 (S.D. Ohio Jan. 15, 2016).
V.

CONCLUSION
For the above reasons, it is ORDERED that:
1) Plaintiff’s motion for summary judgment [Doc. 22] is DENIED;
2) The Commissioner’s motion for summary judgment [Doc. 24] is GRANTED;
and
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3) The Commissioner’s decision denying benefits is AFFIRMED.

SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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