United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ACCEPTING REPORT AND
RECOMMENDATION, (DOC. 29), OVERRULING PLAINTIFFS'
OBJECTIONS, (DOC. 30), GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT, (DOC. 27), AND DENYING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT (DOC. 24)
CARAM STEEH UNITED STATES DISTRICT JUDGE
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).
Procedural and Factual History
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
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).
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."
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).
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
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).
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.
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.
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 ...