United States District Court, E.D. Michigan, Southern Division
LAURIE J. MICHELSON U.S. DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE
Kenneth Kalnbach (“Plaintiff”) brings this action
under 42 U.S.C. §405(g), challenging a final decision of
Defendant Commissioner (“Defendant”) denying his
claim for Childhood Disability Benefits (“CDB”)
and Supplemental Security Income (“SSI”) under
the Social Security Act. Both parties have filed summary
judgment motions which have been referred for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For
the reasons set forth below, I recommend that Defendant's
Motion for Summary Judgment [Docket #17] be GRANTED, and that
Plaintiff's Motion for Summary Judgment [Docket #13] be
applied for SSI on April 27, 2015 alleging disability as of
March 7, 2014 (Tr. 191). After the initial denial of
benefits, he requested an administrative hearing, held on
July 11, 2017 in Mount Pleasant, Michigan (Tr. 43).
Administrative Law Judge (“ALJ”) Laura Chess
presided. Plaintiff, represented by attorney Jessica Gentile,
testified (Tr. 51-60) as did Vocational Expert
(“VE”) Susan Lyon (Tr. 61-67). On August 29,
2017, ALJ Chess found Claimant was not entitled to either CDB
before the age of 18 or SSI as of his 18thbirthday
(Tr. 11-38). On April 26, 2018, the Appeals Council denied
review (Tr. 1-3). Plaintiff filed for judicial review of the
final decision on June 21, 2018.
born March 7, 1997, was 17 at the time of the alleged onset
of disability and 20 when ALJ Chess issued her decision (Tr.
38, 191). Plaintiff alleges disability resulting from Fragile
a learning disability, anxiety, Attention Deficit Disorder
(“ADD”), and speech problems (Tr. 215).
Plaintiff's Hearing Testimony
offered the following testimony.
never worked (Tr. 51). He finished 12th grade and
received a certificate of completion (Tr. 51). At the time of
the hearing he was attending a program with the goal of
transitioning from school to work (Tr. 51). He did not know
his height or weight (Tr. 52). He was right-handed (Tr. 52).
He did not have a driver's license but held a
learner's permit (Tr. 52). He experienced the side effect
of sleepiness from prescribed medication (Tr. 52). Consistent
with a post-high school teacher's assessment, Plaintiff
believed that he had normal or close to normal intelligence
(Tr. 52-53). He took “a bit longer” than usual to
express himself verbally (Tr. 53). Plaintiff had friends
while he was in school (Tr. 53). He took Paxil for anxiety
but did not receive counseling (Tr. 54). He was currently
working toward getting a job and living on his own (Tr. 54).
He was interested in automobile electronics (Tr. 55).
Plaintiff could walk for two miles but experienced
environmental allergies (Tr. 55). He was able to use a
microwave and toaster (Tr. 55).
response to questioning by his attorney, Plaintiff testified
that speaking in front of a large group of people triggered
anxiety (Tr. 56). He also experienced difficulty being in
public (Tr. 56). He did not believe that he could work at the
same pace as other individuals (Tr. 56). He required help
understanding correspondence from the SSA (Tr. 56). His
father helped him fill out the application for disability
benefits (Tr. 57). He would be unable to complete job tasks
following “a list of directions” but could learn
new tasks by demonstration (Tr. 57). He sometimes needed
something demonstrated more than once or needed reminders
following demonstration (Tr. 57). He experienced difficulty
performing more than one activity at a time (Tr. 57). He was
able to pay for items with cash and calculate the amount of
change owed for transactions of 20 dollars or less (Tr. 58).
He was unable to do division but could do multiplication with
the help of a calculator (Tr. 58). He required extra time to
complete projects, assignments, or examinations (Tr. 58). He
was unable to perform laundry chores or follow a recipe (Tr.
59). He sometimes required reminders to bathe or groom
himself (Tr. 59). He experienced concentrational difficulties
but could not think of any concrete examples of such
limitations (Tr. 59). Due to the side effect of sleepiness
from Paxil, he took a nap every day, adding that while in
school, he was able to complete his classes without a nap
(Tr. 60). At the time of the hearing, he did not believe that
he was ready to live on his own (Tr. 60).
Medical and Academic Evidence
Treating and Educational Sources
2014 physical health treating records were unremarkable (Tr.
310-314). School records from the same month state that
Plaintiff was currently eligible for an “Individualized
Education Program” (“IEP”) for continued
instruction in written expression and Mathematics Calculation
(Tr. 324). School records describe Plaintiff as a
“quiet but friendly student” and “very
polite and focused” with a slow response time (Tr. 327,
329). Plaintiff reported that he was “unsure of what
training he would like to receive after high school, ”
but as a high school senior he was encouraged to start resume
writing and “career exploration” (Tr. 330). He
was placed in general education for all subjects except
Science (Tr. 330). Plaintiff professed interest in
electronics repair (Tr. 331). Intelligence testing showed
scores in the low average range with a “deficit”
score in visual matching (Tr. 341). Reading comprehension
skills were average (Tr. 342).
2015, teacher Debra Schafer completed a questionnaire on
Plaintiff's behalf, noting that at various times in the
past three years she had provided instruction in English,
Reading, and Science (Tr. 246). She assessed Plaintiff's
reading skills at the seventh grade level and math and
written language “below average” (Tr. 246). In
the domain of “Acquiring and Using Information”
she found mostly “slight” problems with
“obvious” problems in participating in class
discussions and oral expression (Tr. 247). In
“Attending and Completing Tasks, ” she found at
most slight problems with the exception of an
“obvious” problems in working at a reasonable
pace (Tr. 248). She found no limitation in “Interacting
and Relating With Others” or “Moving About and
Manipulating Objects” (Tr. 249-250). In the domain of
“Caring for Himself, ” she found no problems
except for “taking care of personal hygiene” (Tr.
251). In “Health and Physical Well-Being, ”
Schafer found only that Plaintiff experienced allergies (Tr.
2016 medical records note a normal physical exam (Tr. 391). A
January, 2017 IEP report notes that Plaintiff had good
attendance, was well-groomed, and responded appropriately to
authority (Tr. 362). Plaintiff was deemed capable of
“directly entering employment after finishing
school” with “no” areas of concern (Tr.
372). In March, 2017, “Transitions” instructor
Daniel Palmer noted that Plaintiff could read at the eighth
grade level, perform mathematical problems at the fourth
grade level, and write at the seventh grade level (Tr. 279).
In the domain of “Acquiring and Using
Information” he found mostly a “serious”
problem in participating in class discussions and a
“very serious” problem in oral expression (Tr.
280). He otherwise found a lesser degree in other areas in
the same domain (Tr. 280). In “Attending and Completing
Tasks, ” he found no problems (Tr. 281). He found no
limitation in “Interacting and Relating With
Others” except for an obvious problem in making and
keeping friends (Tr. 282). He found no limitation in
“Moving About and Manipulating Objects, ”
“Caring for Himself, ” or “Health and
Physical Well-Being” (Tr. 283-285). A May, 2017 IEP
progress report notes goals of developing communication
skills in preparation for work (Tr. 355). Goals to be met by
February, 2018 included performing well at job interviews,
filling out job applications, and preparing a resume (Tr.
July, 2013, Leon Austin, Psy.D. performed a consultative
examination of Plaintiff on behalf of the SSA, noting that
Plaintiff had been in special education for the past two to
three years (Tr. 296). Plaintiff's father reported that
he need reminders to maintain hygiene but liked playing video
games and had several close friends (Tr. 297).
Austin noted cooperative mannerisms and a normal mood (Tr.
297). Plaintiff appeared fully oriented with normal
concentration and the ability to count to 100 by
“5s” (Tr. 297). He exhibited good immediate and
recent memory with appropriate judgment (Tr. 297-298).
Intelligence testing placed him in the “low
average” range (Tr. 298). Dr. Austin diagnosed
Plaintiff with a learning disorder and academic problems (Tr.
same month, Julie Hartley, M.S. CCC-SLP assessed
Plaintiff's speech and language abilities, finding no
deficiencies in the ability to hear but that receptive
language skills, total language skills, and speech and
articulation were “below age expectations” (Tr.
302-304). Plaintiff appeared fluent (Tr. 306).
June, 2015, Donovan Royal, Psy.D. performed a consultative
psychological examination on behalf of the SSA, noting that
Plaintiff was currently taking Paxil for anxiety (Tr. 350).
Plaintiff reported that he had some friends and had a good
relationship with his father and twin sister (Tr. 351). Dr.
Royal noted that Plaintiff was “unable to express
himself well or recall information” (Tr. 351). He noted
that Plaintiff was neatly groomed and cooperative “but
not always cognizant of the procedures and the questions
asked of him” (Tr. 351). He noted that Plaintiff
presented responses in a delayed manner but exhibited a
normal mood (Tr. 351-352). Dr. Royal diagnosed Plaintiff with
ADD, and learning disorders in Reading, Math, and Written
Expression (Tr. 353). He stated that “With proper
technical training, ” Plaintiff “may be capable
of one-step tasks that do not require prolonged attention or
decision-making” (Tr. 353).
the same month, Ron Marshall, Ph.D. performed a non-examining
review of the educational, treating, and consultative records
on behalf of the SSA, finding that prior to the age of 18,
Plaintiff experienced “less than marked
limitation” in the domains of “Aquiring and Using
Information” and “Attending and Completing
Tasks” (Tr. 77). In the domains of “Interacting
and Relating to Others, ” and “Moving About and
Manipulating Objects” Dr. Marshall found no limitation
(Tr. 77). He found less than marked limitations in the domain
of “Caring for Yourself” and no limitation in
“Health and Physical Well-Being” (Tr. 78). In
regard to Plaintiff's condition from the age of 18
forward, Dr. Marshall found mild limitation in activities of
daily living, no difficulty in social functioning, and
moderate limitation in maintaining concentration,
persistence, or pace (Tr. 78-79). Dr. Marshall concluded that
Plaintiff could “follow and retain simple instructions,
” work with others, and perform “simple,
repetitive tasks in a slow pace work environment” (Tr.
The Vocational Testimony
Susan Lyon observed that Plaintiff had no past relevant work
Chess posed the following set of limitations to the VE,
describing a hypothetical individual of Plaintiff's age,
educational level, and lack of past relevant work who could
perform work at all exertional levels but had the following
There can be only occasional exposure to dust, fumes, odors,
gases, mold and pollen in the work setting. There should be
no commercial driving. No. interaction with the public . . .
but there could be occasional interaction with co-workers.
This individual can perform routine tasks, repetitive tasks
and simple tasks defined as those that can be learned within
30 days. There could be only occasional decision making or
changes in the work setting. And there should be no
production rate or pace work such as work on an assembly
line. (Tr. 62).
testified that the individual could perform the exertionally
medium, unskilled work of a laundry worker (40, 000 positions
in the national economy) and light, unskilled work of an
assembler (94, 000) and packager (61, 000) (Tr. 63). The VE
testified that if the above-described individual were further
limited to work with instructions given “primarily by
demonstration” with “only occasional new
learning, ” and only simple mathematical calculations,
the job numbers would remain unchanged (Tr. 64). The VE
testified that if the same individual also required
“direct supervision 10 percent of the workday, ”
and, were off task 10 percent of the workday, the numbers
would remain unchanged (Tr. 64-65). She testified that if the
individual were off task for 20 percent or more during the
workday, all competitive employment would be eliminated (Tr.
response to questioning by Plaintiff's counsel, the VE
stated that the need to be off task for 20 percent or more of
the workday, or the need for 60 days of training to learn a
job customarily requiring ...