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Gordon v. Commissioner of Social Security

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

July 29, 2019

TARIA GORDON, on behalf of S.M.C.G., a minor, Plaintiff,

          Patricia T. Morris Magistrate Judge.


          DAVID M. LAWSON United States District Judge.

         Plaintiff Taria Gordon filed the present action on behalf of her minor child, S.M.C.G., seeking review of the Commissioner's decision denying the minor's claim for supplemental security income (SSI) under Title XVI of the Social Security Act. The case was referred to United States Magistrate Judge Patricia T. Morris under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and remand the case “for further analysis.” The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Morris filed a report on May 16, 2019 recommending that the defendant's motion for summary judgment be granted, the plaintiff's motion for summary judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely objections, and the defendant filed a response. The matter is now before the Court.

         The application for SSI benefits that is at issue in the present appeal was filed on behalf of S.M.C.G. on September 28, 2015, when the child was 15. The plaintiff was still attending high school at the time of the administrative hearing, and the ALJ noted that she had an inconsequential history of occasional work, which the ALJ found did not involve any substantial gainful activity after the date that the application was filed. In her claim for benefits, the plaintiff alleged a disability onset date of February 26, 2015. The claimant asserted that she was disabled due to her hearing loss, asthma, intellectual disability, and communication disorder.

         The plaintiff's application for disability benefits was denied initially on April 13, 2016. The plaintiff timely filed a request for an administrative hearing, and on March 14, 2017, the claimant and her mother appeared before ALJ Allison Dietz. On June 12, 2017, ALJ Dietz issued a written decision in which she found that the plaintiff was not disabled. On March 28, 2018, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. On May 7, 2018, the plaintiff filed her complaint seeking judicial review of the denial of benefits.

         ALJ Dietz determined that S.M.C.G. was not disabled by applying the three-step sequential analysis prescribed by the Secretary for minor claimants in 20 C.F.R. § 416.924(a). As preliminary matters, she found that the claimant had not engaged in substantial gainful activity since September 28, 2015 (step one); and that the child suffered from hearing loss without cochlear implants, asthma, intellectual disability, and a communication disorder, impairments which were “severe” within the meaning of the Social Security Act (step two). However, at the final step of the analysis the ALJ concluded that the claimant was not disabled after determining that none of the severe impairments alone or in combination met or equaled a listing in the regulations, nor did they functionally equal any listing under the regulations (step three).

         As the parties well know, functional equivalence requires the ALJ to evaluate how the child performs in each of six “domains, ” meaning “broad areas of functioning intended to capture all of what a child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). Functional equivalence will be found if the child has “marked” limitations in two domains, or “extreme” limitations in one domain. 20 C.F.R. § 416.926a(b)(1). Only one domain is relevant to this appeal: acquiring and using information.

         In her motion for summary judgment, the plaintiff argued that the ALJ's ruling was not based on substantial evidence because: (1) the ALJ erred in concluding that the claimant's impairments did not functionally equal a listing under the regulations, based principally on the finding that in the domain of acquiring and using information the claimant's limitations were not “extreme, ” (2) when rating the severity of the claimant's limitations, the ALJ did not take into consideration the extensive help that the child required to get through her day as compared to her peers, as required by SSR 09-1p, and, (3) the ALJ failed to consider the child's limitations “longitudinally, ” as required by SSR 09-1p.

         The magistrate judge rejected those positions, collapsing the three arguments into one: that the ALJ should have found from the evidence that the plaintiff's functional impairment in the domain of acquiring and using information was extreme, not merely marked. The magistrate judge noted that both the plaintiff and the Commissioner relied on expansive and imprecise citations of portions of the administrative record that did not contain some of the materials alluded to in their briefing. Contrary to the plaintiff's description of the claimant's academic trajectory, the magistrate judge found that the school records that actually were presented suggested only a modest decline in academic performance over the course of a single school year, rather than the protracted multi-year decline described by the plaintiff. Moreover, the magistrate judge noted that the records indicated an improvement in academic scores in subsequent years. The magistrate judge also found that the plaintiff's enumeration of the activities that challenged her capabilities was undeveloped and unsupported by the record, consisting principally of a mere verbatim listing of examples of limitations recognized by the regulations.

         The magistrate judge also found that the plaintiff had forfeited her claim that she suffered from a “chronic” impairment, as described under 20 C.F.R. § 416.924a(b)(8), because she did not develop any argument in support of that position. Finally, the magistrate judge credited the plaintiff's criticism of the ALJ's ruling for its lack of detailed discussion of some information presented by the claimant's school records, but the magistrate judge concluded that the cursory treatment of those portions of the record was not fatal to the credibility of the ALJ's ruling, because the ALJ's determination that the claimant suffered only a “marked” limitation adequately was supported by the opinions of expert evaluators who had reviewed all of the records, and the ALJ properly had reviewed and weighed those opinions in addition to the ALJ's own assessment of the academic information, and the claimant's and her mother's testimony.

         The plaintiff filed a single objection to the magistrate judge's report and recommendation. The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         In her sole objection, the plaintiff echoes with renewed vigor the first point that she argued in her motion for summary judgment, contending that the magistrate erred by simply “rubber stamping” the ALJ's defective determination that the plaintiff's functioning in the domain of acquiring and using information was not extremely limited. The plaintiff asserts that the magistrate judge acknowledged the examples of specific limitations recognized under 20 C.F.R. §416.926(g)(3) and SSR 09-3p, but then ignored credible evidence from the child's Individualized Education Plan (IEP) records which indicated that she suffers from “serious problems” or “extraordinary limitations” in “most of those areas.” The plaintiff also argues that the magistrate judge disregarded information in the most recently completed IEP indicating that the claimant was performing below her grade level despite the provision of significant extra instructional hours and allowance of extra time to complete assignments.

         The Commissioner responds that (1) the plaintiff's position, again, disregards the medical opinion testimony by a reviewing psychiatrist and speech pathologist who opined that the claimant's limitation was merely “marked” and not extreme, (2) the ALJ's opinion included a discussion of the school records supporting the conclusion that the claimant is able to pass the requirements of her educational curriculum with some assistance, and (3) again, as the magistrate judge noted, the assertions that the claimant has “extraordinary limitations” in discrete activities are unsupported by any citations of the record to substantiate that position. The Commissioner points out, moreover, that the ALJ also relied on testimony by S.M.C.G. and her mother, which backed up the assessment of the claimant's academic progress, where both admitted that, ...

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