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Shepard v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 27, 2018

CHRISTEL SHEPARD, on behalf of H.E.S., Plaintiff,



         This matter is before the Court on the parties' cross-motions for summary judgment. Plaintiff Christel Shepard, on behalf of her minor son H.E.S., seeks judicial review of the ALJ's decision that H.E.S. is not disabled. (Doc. 24). Defendant Commissioner of Social Security seeks to affirm the denial of Shepard's application for Supplemental Security Income (SSI) under the Title XVI, 42 U.S.C. § 1381, et seq. (Doc. 27). The matter was referred to Magistrate Judge Patricia T. Morris, who issued a report and recommendation on January 11, 2018, recommending that Shepard's motion be denied and the Commissioner's motion be granted. (Doc. 29). Shepard filed objections on January 25, 2018. (Doc. 30). The Commissioner replied on February 8, 2018. (Doc. 31).

         I. Procedural and Factual History

         Shepard filed an application for SSI benefits on December 12, 2013, alleging that H.E.S. had been disabled since September 20, 2011. The application was denied. Shepard thereafter requested a hearing before an Administrative Law Judge (ALJ). ALJ Matthew Johnson held a hearing on March 9, 2016 and subsequently determined that H.E.S. was not disabled within the meaning of the Social Security Act. At Step One, the ALJ determined that H.E.S. has not engaged in substantial gainful activity since September 20, 2011. At Step Two, the ALJ identified H.E.S.' attention deficit hyperactivity disorder, learning disability/dyslexia, and sensory disorder as severe impairments. At Step Three, the ALJ found that none of these impairments met or functionally equalled a listed impairment.

         The Appeals Counsel of the Social Security Administration denied Shepard's request for review of the ALJ's decision on November 18, 2016 "at which point the ALJ's decision became the final decision of the Commissioner of Social Security." Wilson v. Comm'r of Soc. Sec, 378 F.3d 541, 544 (6th Cir. 2004) (internal citations omitted). Shepard initiated this civil action for review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g) on January 20, 2017. (Doc. 1).

         II. Legal Standard

         The standard of review to be employed by the Court when examining a report and recommendation is set forth in 28 U.S.C. § 636. This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). This Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.

         A district court may affirm, modify, or reverse the Commissioner's decision, with or without remand. See 42 U.S.C. § 405(g). The Court "must affirm the Commissioner's decision if it is supported by substantial evidence and was made pursuant to proper legal standards." Rabbers v. Comm'r Soc. Sec, 582 F.3d 647, 651 (6th Cir. 2009) (internal citations omitted). "Substantial evidence is defined as more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rogers v. Comm'r of Soc. Sec, 486 F.3d 234, 241 (6th Cir. 2007) (internal citations omitted). In deciding whether substantial evidence supports the ALJ's decision, the Court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (internal citations omitted).

         The claimant "has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability." Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). The Court must "take into account whatever in the record fairly detracts from [the] weight" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (internal citations omitted). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding even if there is substantial evidence in the record that would have supported an opposite conclusion." Blakleyv. Comm'r of Soc. Sec, 581 F.3d 399, 406 (6th Cir. 2009) (internal citations omitted).

         III. Analysis

         Magistrate Judge Morris' report and recommendation concludes that the ALJ's opinion is supported by substantial evidence and that Shepard has not shown reversible error. In response, Shepard filed twelve objections. (Doc. 30).

         First, Shepard argues that the Magistrate Judge erred because she did not consider H.E.S.' achievement scores in light of C.F.R. § 416.926a(e)(3)(i). The provision states that "marked" and "extreme" limitations in a given domain can be established by standardized test scores that are two or three standard deviations below the mean, that is, either in the lowest 2.5 or 1 percent of the distribution so long as the scores are representation of day-to-day functioning. Id. Test scores, however, are not conclusive. 20 C.F.R. § 416.926a(e)(4) ("we will not rely on any test score alone. No single piece of information taken in isolation can establish whether you have a 'marked' or 'extreme' limitation in a domain."). Shepard points to tests from 2012 that indicates H.E.S.' scores under the 2.5 percentile in word reading, oral reading fluency, math fluency - subtraction, math fluency sentence composition, and written expression composite. (Doc. 9-7 at PagelD 360-61). The Commissioner notes that subsequent records generally indicated grade level achievement except in reading and writing. (Doc. 9-6 at PagelD 270, 317-18). Moreover, additional evidence in the record, like Dr. Garner's and Heinemann's opinions, illustrates that substantial evidence supports the ALJ's decision that H.E.S. did not meet, medically equal, or functionally equal a listed impairment.

         Second, Shepard objects that Magistrate Judge Morris did not consider H.E.S.' age and accommodations when determining whether his condition met or equaled a listed impairment. Shepard asserts that H.E.S. was two years older than the other children in his class and his school "was bending over backwards" to accommodate him. Shepard argues that this information cannot be ignored, but "this is precisely what Dr. Heinemann and Dr. Garner have done." Shepard alleges that the Magistrate Judge and ALJ erred in failing to account for Dr. Heinemann's and Dr. Garner's errors. The record, however, supports the ALJ's and Magistrate Judge's reliance on these medical opinions, which are consistent with evidence including Ms. Mikek's evaluation, therapy records, and intelligence testing.

         Third, Shepard objects to the Magistrate Judge's finding that the record supported the ALJ's conclusion that H.E.S.' ability to interact with others was neither marked nor extreme. Shepard argues that the Magistrate Judge relied on Dr. Heinemann's conclusory opinion without examining any other facts in the record. Shepard further alleges that Dr. Heinemann is an inappropriate source because he (1) lacks experience in treating children like H.E.S., (2) derives "a significant portion of his income" as a witness for defendant, and (3) is a non-examining witness. Shepard's tenth objection pertains to Dr. Heinemann's experience, qualifications, and impartiality. The Court shall address all related challenges to Dr. Heinemann in ...

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