United States District Court, N.D. Ohio, Eastern Division
S. GWIN, Magistrate Judge
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE.
Loper (“Plaintiff”), acting on behalf of P.L.
(“Claimant”), her minor daughter, seeks judicial
review of the final decision of the Commissioner of Social
Security Administration (“Defendant”) denying
Claimant's application for Supplemental Security Income
(“SSI”). ECF Dkt. #1. In her amended brief on the
merits, filed on April 9, 2018, Plaintiff asserts that the
administrative law judge (“ALJ”) erred in finding
that Claimant did not have a severe medical impairment and
erred by attributing great weight to the opinion of a medical
expert (“ME”) who did not have the highly
material evidence that was submitted after the ALJ hearing.
ECF Dkt. #17. Plaintiff further asserts that the speech and
language evaluation that she submitted after the ALJ hearing
constitutes new and material evidence warranting a remand.
Id. On May 2, 2018, Defendant filed a brief on the
merits. ECF Dkt. #18. Plaintiff did not file a reply brief.
following reasons, the undersigned recommends that the Court
AFFIRM the decision of the ALJ and dismiss the instant case
in its entirety with prejudice.
filed an application for SSI on behalf of Claimant in October
of 2014, alleging a disability onset date of January 11,
2014, Claimant's date of birth. ECF Dkt. #10
(“Tr.”) at 186. Plaintiff alleged that Claimant
was disabled due to muscle stiffness and developmental
delay. Id. at 141. The claim was denied initially
and upon reconsideration. Id. at 57-73. Following
the denial of the claim, Plaintiff requested a hearing.
Id. at 95. Accordingly, a hearing was held on May
10, 2016, with the ALJ, the ME and Plaintiff's counsel
initially. Id. at 20-59. Plaintiff arrived late to
the hearing and did not bring Claimant although instructed to
do so. Id. at 27-28. The ALJ heard testimony from a
ME and Plaintiff, with counsel present. Id. at
17, 2016, Plaintiff filed a letter to the ALJ indicating that
she no longer wanted her counsel's representation. Tr. at
126. She indicated that she was presenting Claimant's
medical records and “[a]ny further records she has not
been scheduled to present at this time. Therefore I am asking
for a decision to be made based on these new medical records
I gave today or dismiss until more exams are
scheduled.” Id. On May 18, 2016, counsel
advised the agency that he and his office no longer
represented Claimant and Plaintiff. Id. at 127.
August 17, 2016, the ALJ issued a decision denying
Plaintiff's claim. Tr. at 10-15.
October 18, 2016, Plaintiff wrote a letter to the SSA stating
that she had additional medical papers to present for the
case and indicating that she was asked to sign a form that
she did not understand. Tr. at 51. She requested more time to
present medical evidence. Id.
October 24, 2016, the SSA wrote Plaintiff a letter indicating
that she could provide more evidence, but it must be new and
material to the issues considered at the hearing. Tr. at 49.
record contains a letter dated May 23, 2017 from the SSA to
Senator Rob Portman of the United States Senate noting that
they acknowledged his inquiry into Claimant's case for
Plaintiff and they were in the process of responding. Tr. at
54. The SSA also indicated that the Appeals Council had
received Plaintiff's request for review of the ALJ's
decision, Senator Portman's inquiry, and additional
material he had submitted to the record. Id. It
appears that Claimant's November 2, 2016 medical records
were included with the inquiry. Id. at 55-56.
record contains a July 14, 2017 letter from the SSA to
Senator Portman advising him that the Appeals Council had
begun its evaluation of the case. Tr. at 53. On the same day,
the Appeals Council denied Plaintiff's request for review
of the ALJ's decision. Id. at 1-4. The ALJ's
decision therefore stands as the final decision.
September 1, 2017, Plaintiff filed the instant suit seeking
review of the ALJ's decision. ECF Dkt. #1. She wrote a
letter stating that Claimant was entitled to SSI because her
symptoms matched those of a child with ataxia as she had
imprecise motor skills, trouble walking and balancing, and
she operated mentally at 15-20 months behind her peers
according to the November 2016 expert evaluation.
Id. at 2-3. She asked for “professional
review” because the ALJ lacked “any
information” and he granted a continuance for more
evidence that was not considered or looked at by him.
Id. at 3. She requested punitive damages in the
amount of $2, 000, 000.00 for “mental anguish and
physical suffering.” Id.
November 27, 2017, Plaintiff filed a motion requesting the
appointment of counsel. ECF Dkt. #11. She indicated that she
had attempted to secure counsel but was unsuccessful in doing
so. Id. The undersigned's office spoke with
Attorney Margolius upon the filing of this motion to see if
she would consult with Plaintiff about the case. Attorney
Margolius graciously agreed to do so and reported that she
spoke to Plaintiff and set up three appointments to meet with
her about the case, but Plaintiff canceled all three
appointments. The undersigned thereafter denied
Plaintiff's motion for the appointment of counsel on
January 26, 2018. ECF Dkt. #12.
February 27, 2018, the undersigned issued an Order to Show
Cause, informing Plaintiff that she needed to show cause on
or before March 13, 2018 why the undersigned should not
recommend dismissal of the complaint for her failure to file
a brief on the merits that was due by December 14, 2017 and
not filed. ECF Dkt. #13. Thereafter, on March 1, 2018,
Attorney Margolius filed a notice of appearance in the case
and requested an extension of time within which to file a
brief on the merits. ECF Dkt. #s 14, 15. The undersigned
granted the motion.
April 3, 2018, Plaintiff, through counsel, filed a brief on
the merits. ECF Dkt. #16. On April 9, 2018, Plaintiff,
through counsel, filed an amended brief on the merits. ECF
Dkt. #17. Defendant filed a brief on the merits on May 2,
2018. ECF Dkt. #18. Plaintiff did not file a reply brief.
STEPS TO DETERMINE WHETHER CHILD IS ENTITLED TO
order to qualify for childhood SSI benefits, a claimant must
show that he or she has a medically determinable physical or
mental impairment which results in marked and severe
functional limitations, and that is expected to cause death
or that has lasted or can be expected to last for a
continuous period of not less than twelve months. 20 C.F.R.
§ 416.906. An ALJ must proceed through the required
sequential steps for evaluating entitlement to childhood SSI.
20 C.F.R. § 416.924(a). The three-step procedure
requires the ALJ to determine whether a child:
(1) is performing substantial gainful activity;
(2) has a “severe” impairment or combination of
impairments; and (3) whether the impairment or combination of
impairments are of listing-level severity in that the
impairment(s) either meets, medically equals or are the
functional equivalent in severity to an impairment listed in
20 C.F.R. § 404, Subpart P, Appendix 1
20 C.F.R. § 416.924(a)-(d). In order to meet a
Listing, the child's impairment(s) must be substantiated
by medical findings shown or described in the listing for
that particular impairment. 20 C.F.R. § 416.925(d)
(emphasis added). In order to medically equal a
Listing, a child's impairment(s) must be substantiated by
medical findings at least equal in severity and duration to
those shown or described in the listing for that particular
impairment. 20 C.F.R. § 416.926(a) (emphasis added.) In
order to functionally equal a Listing, the
child's impairment(s) must be of listing-level severity;
i.e., it must result in “marked”
limitations in two domains of functioning or an
“extreme” limitation in one domain. 20 C.F.R.
§ 416.926a(a) (emphasis added.)
STANDARD OF REVIEW
the Social Security Act, the ALJ weighs the evidence,
resolves any conflicts, and makes a determination of
disability. This Court's review of such a determination
is limited in scope by § 205 of the Act, which states
that the “findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C. §
405(g). Therefore, this Court's scope of review is
limited to determining whether substantial evidence supports
the findings of the Commissioner and whether the Commissioner
applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The Court cannot reverse the decision of an ALJ, even if
substantial evidence exists in the record that would have
supported an opposite conclusion, so long as substantial
evidence supports the ALJ's conclusion. Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 528
(6th Cir.1997). Substantial evidence is more than
a scintilla of evidence, but less than a preponderance.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It
is evidence that a reasonable mind would accept as adequate
to support the challenged conclusion. Id.;
Walters, 127 F.3d at 532. Substantiality is based
upon the record taken as a whole. Houston v. Sec'y of
Health and Human Servs., 736 F.2d 365 (6th
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
records show that Claimant was born on January 11, 2014 in an
uncomplicated birth. ECF Dkt. #10 (“Tr.) at 193.
Claimant's physical examination was normal. Id.
30, 2014, Plaintiff presented Claimant, who was nineteen
weeks old, to the emergency room for fever and vomiting. Tr.
at 185. Examination showed that Claimant was active,
well-hydrated, well-appearing, alert and interactive.
Id. at 186. Her physical examination was normal as
she moved all four extremities, had a normal heart rate and
clear breath sounds, and was neurologically intact.
Id. Oral thrush and nasal congestion were noted.
Id. She was diagnosed with an upper respiratory
infection and oral thrush and prescribed medication.
18, 2014, Plaintiff presented Claimant, who was six months
old, to Dr. Kiefer, a pediatrician. ECF Dkt. #10 (“Tr.)
at 178, 229. Plaintiff reported to Dr. Kiefer that a prior
doctor told her that Claimant may have cerebral palsy and she
had been worried and upset ever since. Id. at 178,
230. Plaintiff asked if Dr. Kiefer would order a number of
tests for Claimant, including a MRI. Id. Dr. Kiefer
advised that Plaintiff should not jump to conclusions about
cerebral palsy because many factors for such a diagnosis do
not manifest until an infant is older. Id. He also
told her that such a diagnosis cannot be made until a
thorough examination was performed by a pediatric
Kiefer examined Claimant and found that she had no skin
lesions, normal head circumference, normal eye appearance,
normal ear, nose and throat examination, no neck stiffness or
abnormal range of motion, normal breath sounds, normal heart
sounds, normal abdominal exam, normal spine curvature, normal
extremities, and normal neuromuscular examination, except for
some mild stiffness in her muscle tone. Tr. at 180. Dr.
Kiefer assessed Claimant with normal growth, ...