ANTHONY P. PATTI, Magistrate Judge.
Plaintiff, Julia Scott, on behalf of her minor child, J.C.D., brings this action under 42 U.S.C. §§ 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income (SSI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 13), the Commissioner's cross-motion for summary judgment (DE 17), and the administrative record (DE 7).
On July 2, 2015, Plaintiff protectively filed an application for supplemental security income on behalf of her minor daughter, J.C.D., alleging that J.C.D. has been disabled since June 1, 2010. (R. at 260-68.) In her disability report, she alleges that J.C.D. is disabled due to Asperger's Syndrome (a form of autism), attention deficit hyperactivity disorder (ADHD), anxiety, insomnia and obsessive compulsive disorder (OCD)/behavior problems. (R. at 302.) Her application was denied on October 1, 2015. (R. at 77-87.)
On November 25, 2015, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 98-100.) On February 22, 2017, ALJ Dennis M. Matulewicz held a hearing, at which Plaintiff, J.C.D., and a medical expert, Charles R. Black, M.D., testified. (R. at 41-76.) ALJ Matulewicz issued an opinion on May 11, 2017, which determined that J.C.D. was not disabled within the meaning of the Social Security Act. (R. at 7-35.)
On June 7, 2017, Plaintiff submitted a request for review of ALJ Matulewicz's decision/order. (R. at 256-59.) However, on February 26, 2018, the Appeals Council denied Plaintiff's request for review. (R. at 1-6.) Thus, ALJ Matulewicz's decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on March 12, 2018.
The administrative record contains approximately 610 pages of medical and educational records that were available to ALJ Matulewicz at the time of his May 11, 2017 decision. (R. at 273-97, 317-28, 360-99, 404-944 [Exhibits 1E, 5E, 16E-17E, 1F-28F].) These materials will be discussed in detail, as necessary, below.
A child under age eighteen is considered "disabled" within the meaning of the Act if he or she "has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i). The Commissioner determines whether a child is disabled by analyzing three sequential steps: first, the child must not be engaged in "substantial gainful activity;" second, the child must have a "severe" impairment;
To determine whether a child claimant suffers from an impairment which is the functional equivalent of a listed impairment, the ALJ must evaluate how the child functions in each of six domains of functioning described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(a)-(b). The six domains of functioning are:
Id. § 416.926a(b)(1). To be considered disabled, the child's impairments must result in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain. Id. § 416.926a(a). A domain has "marked" limitations when an impairment interferes seriously with the child's ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(2). A domain has "extreme" limitations when an impairment interferes very seriously with the child's ability to independently initiate, sustain, or complete activities. Id. § 416.926a(e)(3).
Applying this framework, the ALJ concluded that J.C.D. was not disabled. At
At
At
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, 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 of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "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, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 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); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
Although the substantial evidence standard is deferential, it is not trivial. 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) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). 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.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, "`a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
Plaintiff identifies one claim of error: that the ALJ committed reversible error when he found that J.C.D.'s impairments did not functionally equal a listing. Specifically, Plaintiff alleges that the ALJ erroneously found that J.C.D. did not have at least marked limitations in the domains of attending and completing tasks and caring for yourself. (DE 13 at 6, 16-23.) The Commissioner opposes Plaintiff's motion, asserting that substantial evidence supports the Commissioner's decision finding less than marked limitations in those domains. (DE 17 at 8-16.) The Undersigned agrees with the Commissioner.
The ALJ considered the six functional domains and found that J.C.D. experienced marked limitation in interacting and relating with others, but had less than marked limitation, or no limitation, in the remaining five functional domains. (R. at 23-30.) Plaintiff argues that the ALJ's findings that J.C.D. had less than marked limitations in two domains: (1) attending and completing tasks and (2) caring for yourself, are not supported by substantial evidence. (DE 13 at 16-23.) Because Plaintiff only challenges the ALJ's findings in these two domains, she has waived any other challenges. See Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006) ("[W]e limit our consideration to the particular points that Hollon appears to raise in her brief on appeal.")
The domain of attending and completing tasks refers to "how well you are able to focus and maintain your attention, and how well you begin, carry through, and finish your activities, including the pace at which you perform activities and the ease with which you change them." 20 C.F.R. § 416.926a(h). At the school-age level, a child should:
20 C.F.R. § 416.926a(g)(2)(iv).
The ALJ found with respect to this functional domain that:
(R. at 25-26.)
Plaintiff asserts that "the educational records overwhelmingly supports [sic] marked limitations in the area of Attending and Completing Tasks." (DE 13 at 19.) She specifically refers to J.C.D.'s April 2016 and March 2017 annual Individualized Education Program (IEP) assessments, which she claims shows that J.C.D. had difficulties with attention and maintaining focus in school. (Id. at 19-20, citing R. at 360-77, 378-99.) She also cites to her hearing testimony that J.C.D. had trouble attending and completing tasks at home. (Id., citing R. at 57-62.) However, the ALJ expressly considered the school records Plaintiff cites, as well as the hearing testimony, and recognized that J.C.D. exhibited difficulties with attention and maintaining focus on schoolwork, but found as explained above, after weighing all of the record evidence, that Plaintiff's difficulties in attending and completing tasks were less than marked. (R. at 23-25) As this Court has previously explained, "[h]aving a less than marked impairment certainly does not mean that the claimant is unimpaired, but the mere existence of an impairment does not necessarily mean . . . that a claimant is "markedly" impaired in a particular domain." Handley v. Comm'r of Soc. Sec., No. 15-12656, 2016 WL 4761606, at *8 (E.D. Mich. Aug. 18, 2016), report and recommendation adopted, 2016 WL 4729655 (E.D. Mich. Sept. 12, 2016).
In reaching his finding, the ALJ carefully reviewed and extensively recited the record evidence. (R. at 19-23, 24-26.) He supportably relied on the hearing testimony of the medical expert, Charles R. Black, M.D., that J.C.D.'s limitations in attending and completing tasks were "less than marked," as well as the other record opinion evidence finding similarly. (R. at 19-21, 26, 70.) Specifically, the ALJ noted that Traci Harp, J.C.D.'s resource room teacher, opined in September 2015 that Plaintiff exhibits "no limitations" in the domain of attending and completing tasks, as well as in the domains of acquiring and using information, interacting and relating with others, moving about and manipulating objects, and caring for herself. (R. at 19-20, citing R. at 317-28.) State agency physician Paul Liu, D.O. and speech and language pathologist, Marci Diedrich, completed a Childhood Disability Evaluation in September 2015 and opined that Plaintiff exhibits "no limitations" in the domains of attending and completing tasks, interacting and relating with others, moving about and manipulating objects, caring for herself, and health and physical well-being, and "less than marked" limitations in the domain of acquiring and using information. (R. at 20, citing R. at 77-86.) Likewise, Michele Moz, J.C.D.'s resource room teacher, opined in November 2016 that J.C.D. had "less than marked limitations" in the domains of attending and completing tasks, acquiring and using information, interacting with others, moving about and manipulating objects, and caring for herself. (R. at 21, citing R. at 673-82.) Plaintiff does not challenge this opinion evidence, or present any opinion evidence that J.C.D. otherwise experiences marked or extreme limitations in the domain of attending and completing tasks.
The isolated facts taken from the record by Plaintiff, even if supportive of a different conclusion, do not demonstrate that the ALJ strayed from the "zone of choice" within which he must act to satisfy this Court's substantial evidence review. The ALJ's findings "are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion." White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009) (quoting Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)). The ALJ carefully reviewed the record evidence in this case and thoroughly set forth his analysis and the facts supporting his findings. These facts suffice to provide substantial evidence in support of the ALJ's finding that J.C.D. has less than marked limitations in attending and completing tasks. See Barnett ex rel. D.B. v. Comm'r of Soc. Sec., 573 F. App'x 461, 464 (6th Cir. 2014) ("We must `accept the agency's factual finding []' when it is supported by substantial evidence, even when substantial evidence could justify a different result.") (citing Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992)). Nor can this Court re-weigh the evidence, which is what Plaintiff seemingly asks it to do in pointing out other aspects of the record which she believes to be favorable to her desired outcome. See Long v. Comm'r of Soc. Sec., 56 F. App'x 213, 214 (6th Cir. 2003) ("Generally, [the] Court may not re-weigh the evidence and substitute its own judgment for that of the Commissioner even if it finds that the evidence `preponderates against the Commissioner's decision.'") (citation omitted).
Accordingly, Plaintiff has failed to show that the ALJ's finding that J.C.D. experienced less than a marked limitation in attending and completing tasks is not supported by substantial evidence, and her claim of error should be denied.
The domain of caring for yourself refers to "how well you maintain a healthy emotional and physical state, including how well you get your physical and emotional wants and needs met in appropriate ways; how you cope with stress and changes in your environment; and whether you take care of your own health, possessions, and living area." 20 C.F.R. § 416.926a(k). At the school-age level, a child should:
20 C.F.R. § 416.926a(h)(2)(iv).
The ALJ found with respect to this functional domain that:
(R. at 28-29.) Again, the ALJ also properly relied on the opinions of the medical expert at the hearing, as well as the opinions of the State agency reviewers and J.C.D.'s teachers that she had no limitation or "less than marked" limitation in caring for herself. (R. at 19-21, citing R. at 71, 77-86, 317-28, 673-82.) The ALJ thus articulated substantial evidence supporting his finding that J.C.D. experienced less than marked limitations in this domain.
Plaintiff criticizes the ALJ for considering that J.C.D. was consistently "pleasant, cooperative, alert, smiling, [and] interactive." (DE 13 at 21.) However, that was a valid consideration by the ALJ. See Lintern v. Colvin, No. 14-12034, 2015 WL 6541692, at *6 (E.D. Mich. Oct. 29, 2015) (the ALJ reasonably considered that the plaintiff "was smiling and participating in class [and] she was pleasant, clever and bright in social work meetings" in finding that plaintiff had less than marked limitation in the ability to care for herself); SSR 09-7p, 2009 WL 396029, at *3 (Feb. 7, 2009) ("express[ing] positive feelings appropriately" is one marker of ability to care for oneself). Similarly, contrary to Plaintiff's contention, the ALJ properly considered J.C.D.'s ability to brush her teeth, wash her face, and dress herself. See SSR 09-7p, 2009 WL 396029, at *3 (this domain "involves the emotional ability to engage in self-care activities, such as feeding, dressing, toileting, and maintaining hygiene and physical health"). While Plaintiff claims that the ALJ disregarded testimony that J.C.D. "has no friends and isolates herself as much as possible and could not even speak to the ALJ without speaking through a stuffed animal" (DE 13 at 21), this functional domain does not concern "the ability to relate to other people," which is addressed instead under the domain of interacting and relating with others, see SSR 09-7p, 2009 WL 396-29, at *2, a domain finding Plaintiff does not challenge.
Plaintiff also faults the ALJ for not specifically discussing a July 19, 2016 report that J.C.D. picked her skin and was diagnosed with a skinpicking disorder (based on her mother's report), which Plaintiff claims is a type of self-mutilation. (DE 13 at 21-22.) Among the examples of limited functioning in this domain is the engaging in self-injurious behavior, which includes suicidal thoughts, self-inflicted injury and refusal to take medication. 20 C.F.R. § 416.926a(k)(3)(iv). While it is true the ALJ made no specific mention of the skin-picking diagnosis, the ALJ did consider that treatment visit, and gave substantive weight to Dr. Dayna Jenay Leplatte-Ogini's opinion that J.C.D. exhibited "moderate" symptoms that day and that she had no "overt" concerns about J.C.D.'s safety or aggression levels. (R. at 18-19, citing R. at 510.) The ALJ was not required to discuss this evidence, as it is well-settled that "[a]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party." Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006) (internal citation omitted); see also Lintern v. Colvin, No. 14-12034, 2015 WL 4601124, at *5 (E.D. Mich. June 16, 2015) ("The ALJ is required to make a reasoned decision based upon all the evidence, but does not need to discuss every detail in the record.") (citation omitted), report and recommendation adopted, 2015 WL 6541692 (E.D. Mich. Oct. 29, 2015). Further, "the mere diagnosis of an impairment does not render an individual disabled nor . . . reveal anything about the limitations, if any, it imposes upon an individual," McKenzie v. Comm'r of Soc. Sec., No. 99-3400, 2000 WL 687680, at *5 (6th Cir. May 19, 2000), and "the mere existence of an impairment does not necessarily mean . . . that a claimant is `markedly' impaired in a particular domain." Handley, 2016 WL 4761606, at *8.
Plaintiff otherwise generally cites to record evidence which she argues supports a contrary conclusion to that reached by the ALJ, including hearing testimony, Dr. Leplatt-Ogini's treatment records, and a speech and language evaluation by Julie Holloway. (DE 13 at 20-23, citing R. at 312, 504-30, 612-17.) However, the ALJ expressly considered this same evidence and found that it supported a less than marked limitation in the domain of caring for yourself. (R. 18-22, 28-29.) Plaintiff's argument suggests that because there is some evidence that J.C.D. has a limitation in this area, that limitation must be at least marked. However, as explained above, "the mere existence of an impairment does not necessarily mean . . . that a claimant is `markedly' impaired in a particular domain." Handley, 2016 WL 4761606, at *8. And, it is not sufficient for Plaintiff to point to "pieces of evidence" on which the ALJ could have based a finding in her favor. Her burden on appeal is much higher. She must "demonstrate that the ALJ's determination that [J.C.D.] was not disabled is not supported by substantial evidence." Peterson v. Commissioner, 552 F. App'x 533, 540 (6th Cir. 2014). This Court may not reweigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. Rather, the substantial evidence standard allows considerable latitude to administrative decision makers, and it presupposes there is a "zone of choice" within which the decision makers can go either way, without interference by the courts. See Blakley, 581 F.3d at 406. The record here reflects that the ALJ carefully considered the entire record in arriving at his conclusions. He acknowledged that J.C.D. had difficulty in this domain, but provided a thorough and accurate explanation for why these difficulties did not rise to a marked or extreme limitation. Plaintiff's claim of error therefore should be denied.
The ALJ's decision was supported by substantial evidence, and no legal error which would lead to a different result has been shown. For the foregoing reasons, it is
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
