UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ALYCIA ROBERTS on behalf

of JW, a Minor,

Plaintiff, Civil Action No.: 14-13194

 Honorable Denise Page Hood

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 19, 20]

Plaintiff Alycia Roberts appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying her application, 

on behalf of her minor son, J.W., for Supplemental Security Income 

benefits (“SSI”). Both parties have filed summary judgment motions,

referred to this Court for a Report and Recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B). The Court finds that the administrative law judge 

(“ALJ”) did not satisfy his duty to properly develop the record in light of 

Roberts’ pro se status, the ALJ’s representations at the hearing, and the 

insufficiency of the opinion received from J.W.’s treating psychiatrist. For 

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these reasons, the Court RECOMMENDS that:

• the Commissioner’s motion [R. 20] be DENIED; 

• Roberts’s motion [R. 19] be GRANTED; and,

• the Commissioner’s decision be REMANDED for further 

consideration, pursuant to sentence four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. Claimant’s Background and Alleged Impairments

J.W. is an eight-year-old boy who had previously received social 

security benefits through 2011, though the circumstances under which 

those benefits were granted is unclear. [R. 12-2, Tr. 44-45]. When the 

benefits were terminated, (aqain for reasons unclear), his mother filed a 

new application, alleging he was disabled as of November 22, 2011, due to 

attention deficit hyperactivity disorder (“ADHD”) and oppositional defiant 

disorder (“ODD”). [R. 12-5, Tr. 101-106; R. 12-6, Tr. 109-114]. 

B. Procedural History

Roberts’s claim was denied initially, and she filed a timely request for 

an administrative hearing, held on October 19, 2012. [R. 12-2, Tr. 35-61; 

R. 12-4, 77-83]. At the hearing, the ALJ asked Roberts if she wished to 

proceed without counsel, and obtained her waiver. [R. 12-2, Tr. 39-40]. He 

then took her testimony, but did not take any testimony from J.W.. [Id., Tr. 

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54]. The ALJ left the record open and offered to obtain additional treatment 

information for J.W. before rendering a decision. [Id., Tr. 49, 52, 58-60]. In 

a February 7, 2012 written decision, the ALJ found J.W. not disabled. [Id., 

Tr. 17-34]. The Appeals Council denied review, making the ALJ’s decision 

the final decision of the Commissioner. [Id., Tr. 9-14]. Roberts timely filed 

for judicial review. [R. 1; R. 12-2, Tr. 1-3]. 

C. The ALJ’s Application of the Disability Framework

SSI is available for children who have a “disability.” See Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). A “disability” is the “inability to 

engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment 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 an child is disabled by 

analyzing three sequential steps, assessing: (1) whether the child is 

engaged in “substantial gainful activity”; (2) whether the child has a 

“severe” impairment;1 and (3) whether the child’s impairment meets, 

medically equals, or functionally equals an impairment listed in 20 C.F.R. 

 1 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” §§ 1520(c); 920(c).

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Part 404, Subpart P, Appendix 1 (“Listings”). See 20 C.F.R. §416.924(a). 

Functional equivalence is demonstrated by the existence of an “extreme” 

limitation in one of six domains, or a “marked” limitation in two of the six. 

20 C.F.R. § 4156.926a(d). An extreme limitation is one that interferes “very 

seriously” with a claimant’s ability to independently initiate, sustain and/or 

complete activities. 20 C.F.R. § 416.926a)(e)(3)(i). A “marked” limitation 

exists where the impairment interferes “seriously” with these abilities. 20 

C.F.R. § 416.926a(e)(2)(i). If the impairment or combination of 

impairments does not meet or medically or functionally equal a listing, the 

child is not disabled. 20 C.F.R. §416.924(a). 

Applying this framework, the ALJ concluded that J.W. was not 

disabled. At step one, he determined that J.W. had not engaged in 

substantial gainful activity since his alleged onset date. [R. 12-2, Tr. 23]. 

At step two, the ALJ identified severe impairments of ADHD and ODD. 

[Id.]. At step three, the ALJ found that neither of J.W.’s severe 

impairments, either alone or in combination, met or medically equaled a 

listed impairment. [Id., Tr. 24]. He further found that neither of J.W.’s 

impairments functionally equaled a listed impairment. [Id.]. In making this 

finding, the ALJ determined that J.W. had marked limitations in the domain 

of attending and completing tasks, less than marked limitations in the 

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domains of acquiring and using information, interacting and relating with 

others and caring for yourself, and no limitations in the domains of moving 

about and manipulating objects or health and physical well-being. [Id., Tr. 

24-30]. As a result, J.W. was not disabled. [Id., Tr. 30]. 

II. STANDARD OF REVIEW

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“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 quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). “If the [Commissioner’s]

decision is supported by substantial evidence, it must be affirmed even if 

the reviewing court would decide the matter differently, and even if 

substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal 

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citations omitted). 

The significant deference accorded the Commissioner’s decision is 

conditioned on the ALJ’s adherence to governing standards. “Chief among 

these is the rule that the ALJ must consider all evidence in the record when 

making a determination, including all objective medical evidence, medical 

signs, and laboratory findings.” Gentry, 741 F.3d at 723. See also Rogers, 

486 F.3d at 249. In other words, substantial evidence cannot be based 

upon fragments of the evidence, and “must take into account whatever in 

the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984) (internal quotation marks and citation omitted). 

The Commissioner must also adhere to its own procedures, but 

failure to do so constitutes only harmless error unless the claimant has 

been prejudiced or deprived of substantial rights. Rabbers v. Comm’r of 

Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009). An ALJ’s failure to use an 

“adjudicatory tool” that does not change the outcome of the decision is 

harmless. Id. at 655-56. On the other hand, substantial errors like ignoring 

evidence in the record or failing to follow the treating physician rule are not 

harmless. Id.; Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011); Gentry, 

741 F.3d at 729. An “ALJ’s failure to follow agency rules and regulations 

denotes a lack of substantial evidence, even where the conclusion of the 

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ALJ may be justified based upon the record.” Cole, 661 F.3d at 939-40

(internal quotation marks and citation omitted).

With these standards in mind, this Court finds that the ALJ’s 

determination that J.W. is not disabled is not supported by substantial 

evidence.

III. ANALYSIS

A. Roberts’s Brief

As a preliminary matter, the Court addresses Roberts’s pro se brief, 

which primarily argues against J.W.’s prior termination of benefits. Roberts 

needs to be aware that the issue of benefits termination is not presently 

before this Court. This Court has jurisdiction only to address whether or 

not substantial evidence supports the ALJ’s decision that J.W. was not 

disabled between November 22, 2011, the date of his current application 

for benefits, and the date of the ALJ’s decision. Casey v. Sec'y of Health & 

Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (“The proper inquiry in 

an application for SSI benefits is whether the plaintiff was disabled on or 

after her application date.”); Ellis v. Comm'r of Soc. Sec., No. 1:13-CV-870, 

2014 WL 6387145, at *6 (W.D. Mich. Nov. 14, 2014) (relevant period for 

judicial review of denial of SSI benefits is date of application until ALJ 

decision). Most of Roberts’s arguments are inapposite to this issue. 

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Roberts also argues that the ALJ held her lack of representation at 

the hearing against her, but the Court disagrees. Roberts claims that the 

ALJ made a statement that he was going to go with his “gut” instead of the 

facts. This statement is taken out of context. The ALJ actually stated that 

he was going to go with his gut in obtaining more records on the issue of 

J.W.’s ability to function, including either obtaining an evaluation form from 

his treating psychiatrist or sending him out for a consultative exam. [R. 12-

2, Tr. 48-49, 52, 58-60]. The transcript reflects a consistent attempt on the 

part of the ALJ to explain the process to Roberts and the reasons he felt he 

needed more information than what she had provided. [Id.]. 

Roberts also argues that the ALJ erred in refusing to receive and 

scan in to the record all of the relevant medical evidence she submitted. 

This too, fails to accurately reflect the record. The documents Roberts 

attaches to her motion are alternatively already in the record, [see R. 19, 

PgID 737-41, 746, 748-49, 753-58; R. 12-2, Tr. 33-34; R. 12-4, Tr. 93-99; 

R. 12-7, Tr. 186-87, 486-92], are simply requests for, or releases of,

records, [R. 19, PgID 744-745, 747, 750-52, 759], relate to a time period 

after the ALJ’s decision, which means they were not submitted to him, [see 

R. 19, PgID 742-73, 760-64], or relate to J.W.’s 2009 notice of award of SSI 

benefits [R. 19, PgID 727-36]. The ALJ did not fail to incorporate submitted 

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evidence into the record.

B. ALJ Failed to Satisfy Duty to Fully Consider and Develop 

Record

The Court finds that the ALJ erred by not properly developing the 

record in this case. “Social Security proceedings are inquisitorial rather 

than adversarial.” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). In such 

proceedings, the ALJ has an affirmative duty to develop the factual record 

upon which his decision rests. Lashley v. Sec’y of Health & Human Servs., 

708 F.2d 1048, 1051 (6th Cir. 1983) (citing Richardson v. Perales, 402 U.S. 

389, 410 (1971)). This duty is heightened where the claimant is proceeding 

without counsel. Lashley, 708 F.2d at 1051-52. To satisfy this duty, the 

ALJ must “scrupulously and conscientiously probe into, inquire of, and 

explore for all the relevant facts” and be “especially diligent in ensuring that 

favorable as well as unfavorable facts and circumstances are elicited.” Id. 

at 1052 (internal citations and quotations omitted). 

The record contains a February 2012 medical opinion of state 

agency, non-examining consultant psychologist, Rose Moten, Ph.D., who, 

based on limited records from the end of 2011, opined that J.W. had less 

than marked limitations in the functional domains of attending and 

completing tasks, interacting and relating with others and caring for 

yourself, and no limitations in the domains of acquiring and using 

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information, moving about and manipulating objects, and health and 

physical well-being. [R. 12-3, Tr. 72-73]. At the hearing, presumably 

because he did not intend to rely on this opinion, the ALJ represented to 

Roberts that he was going to either obtain an evaluation from J.W.’s 

treating psychiatrist or, if he could not or was not satisfied with the 

information received, send J.W. for a consultative examination. [R. 12-2, 

Tr. 48-49, 60]. 

The ALJ did the former and received into the record an evaluation 

form from J.W.’s treating psychiatrist, Dr. Cecilia Astorga-Switzer. 

However, the ALJ never mentions this opinion (or the consulting 

psychologist’s opinion) within his skeletal analysis when concluding that 

J.W. did not meet a listing. [R. 12-7, Tr. 486-92; R. 12-2, Tr. 25]. The form

the ALJ provided to Dr. Astorga-Switzer required her to consult various 

federal regulations in order to obtain explanations and definitions of terms 

and categories, and properly respond. [R. 12-7, Tr. 486-92]. Dr. AstorgaSwitzer partially completed the form, diagnosing J.W. with ADHD and ODD 

and opining that he had marked limitations in attending and completing 

tasks, less than marked limitations in acquiring and using information, 

interacting with others and caring for himself, and no limitations in moving 

about or manipulating objections. [Id., Tr. 488-89]. She declined to assess 

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the domain of health and physical well-being, deferring to J.W.’s primary 

care physician. [Id., Tr. 489]. She also did not complete the portion 

assessing J.W.’s medical equivalence. [Id., Tr. 486-87]. At the end of the 

form, Dr. Astorga-Switzer commented, “The questions are very confusing 

and I do not fully understand the questions to be able to answer them 

accordingly.” [Id., Tr. 491]. In light of this admission and the 

incompleteness of her opinion, the ALJ had a duty either to seek 

clarification from Dr. Astorga-Switzer or seek another medical opinion. 

That is because, by informing Roberts that he would either obtain an 

opinion from J.W.’s treating provider with which he was satisfied, or send 

him for a consultative examination, the ALJ assumed the duty to obtain Dr. 

Astorga-Switzer’s complete and valid opinion in this pro se matter, or obtain 

a consultative opinion, and his failure to do either deprived J.W. of a full 

and fair hearing. Strang v. Comm’r of Soc. Sec., No. 14-1610, 2015 U.S. 

App. LEXIS 7586, *25-26; 2015 WL 2056098, *5 (6th Cir. May 4, 2015).

“Beyond the normal duty to develop record, an ALJ self-imposes a special 

duty to obtain records by, as here, frequently noting their importance to the 

resolution of the claim and committing to obtain them.” Id. Of further 

import, “[w]here there are obvious gaps in the record, the ALJ has the duty 

to develop the administrative record with respect to the missing evidence.” 

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Kendall v. Astrue, No. CIV.A. 2:10-263-DCR, 2011 WL 4388794, at *5 

(E.D. Ky. Sept. 20, 2011). See also 20 C.F.R.§ 404.1512(e); 76 FR 20282 

and 77 FR 10651 (discussing changes to rule regarding re-contacting 

treating physicians, effective Marh 26, 2012). The ALJ failure either to 

seek clarification from Dr. Astorga-Switzer as to her opinion or obtain a 

consultative examination of J.W. was error.

Moreover, Dr. Astorga-Switzer did not even attempt to opine on 

J.W.’s medical equivalence, leaving that section blank, and thus there is no 

current opinion on whether J.W. medically equals a listed impairment. [R. 

12-7, Tr. 486-87]. Under the regulations, an ALJ must seek an updated 

opinion on the issue of medical equivalence where medical evidence is 

received that may change a consultant’s finding that an impairment is not 

equivalent to a listing. Courter v. Comm'r of Soc. Sec., 479 F. Appx 713, 

723 (6th Cir. 2012) (citing SSR 96-6p, 1996 SSR LEXIS 3, at *9-10, 1996 

WL 374180 (July 2, 1996)). Here, ample medical evidence after 2011

describes serious symptoms that might have changed the Dr. Moten’s 

finding that J.W. did not have an impairment equivalent to a listing. 

Despite the ALJ’s opinion characterizing J.W. as generally improving

with medication and doing better in school, [R. 12-2, Tr. 23-30], the 

evidence of record paints an entirely different picture. As of November 

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2011 (his alleged onset date), J.W. was making no progress toward his 

therapeutic goals even though he was being medicated with Vyvance; his 

abilities to concentrate, sustain attention and control impulses were

decreased and he was not following directions at home or at school. [R. 

12-7, Tr. 148-49]. Although Dr. Astorga-Switzer assessed a “good 

response” to medication in December, J.W. reported to her that he saw the 

devil in front of his television and in his pencil when asked to practice 

spelling. [Id., Tr. 143-45]. He was also not sleeping well and Clonidine 

was added to his regimen. [Id.]. 

Throughout 2012, despite being on Vyvanse and Clonidine, J.W. 

continued to have behavioral issues both at home and at school. [Id., Tr. 

193-201, 354-73, 376-79, 471-76, 482-85, 521-23]. In March 2012, he 

qualified for special education services, including three to five hours of 

resource teacher assistance. [Id., Tr. 357, 362]. Despite this, J.W.

continued to be disruptive in class, was fidgety, had difficulty listening and 

concentrating, threw tantrums, stabbed himself with a pencil and was

defiant at home. [Id., Tr. 362, 471, 475, 521]. A May 2012 psychosocial 

assessment (completed by a social worker and reviewed by Dr. AstorgaSwitzer), identified marked impairments with family relationships, and 

extreme impairments related to school, the ability to concentrate, and the 

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ability to control temper. [Id., Tr. 376-89]. 

An October 2012 CAFAS2 report identified severe and pervasive 

impairments in meeting minimal standards at school and at home, including 

that he required constant monitoring and supervision, and was deliberately 

damaging household property. [R. 12-7, Tr. 483-85]. The identification of 

two severe impairments was a “setback” from J.W.’s initial 2011 

assessment, which did not identify any severe impairment, and his CAFAS 

score (which measure dysfunction) increased from 70 to 140 during this 

period. [Id., Tr. 482-83]. J.W. was assessed with thinking problems and a 

pervasive behavioral impairment. [Id., Tr. 485]. While J.W. participated in 

sports, he had been asked not to return to a karate class due to his 

behavior. [Id., Tr. 471]. Dr. Astorga-Switzer noted in September 2012 that 

J.W.’s response to medicine was “not optimal” and, at all other relevant 

times, she found his condition to be either maintaining or deteriorating, but 

never improving. [Id., Tr. 144, 355, 360, 363, 472, 522]. She issued seven

Global Assessment of Functioning (“GAF”) scores between J.W.’s onset 

date and November 2012, all of which were between 47 and 50, indicating 

serious symptoms. [Id., Tr. 144, 355, 360, 363, 388, 472, 522].3

 

 2 “CAFAS” stands for Child and Adolescent Functional Assessment Scale.

3 The GAF scale is a method of considering psychological, social, and 

occupational function on a hypothetical continuum of mental health. The 

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By November 2012, J.W. was reportedly engaging in more 

aggressive activities, including throwing chairs at school and attempting to 

fight with another child while playing basketball. [Id., Tr. 521]. His mother 

received two to three calls a week from his school. [Id.]. Dr. AstorgaSwitzer recommended starting Risperdal, but Roberts declined, although 

she agreed to add this medicine in January 2013 when it was suggested by 

another psychiatrist in the practice, Dr. Rajendra Kanneganti. [Id., Tr. 522, 

519]. At that time, J.W. was characterized as restless, hyperactive and 

intrusive into others’ activities. [Id., Tr. 516-17]. He was also engaging in 

aggressive and destructive behavior, shoplifting and stealing, and being 

cruel to animals. [Id.]. Dr. Kanneganti diagnosed him with ADHD, ODD 

and impulse control disorder, and issued him a GAF score of 45. [Id., Tr. 

518]. 

Given that the longitudinal medical record describes symptoms much 

more severe than the ALJ’s opinion identifies, the Court finds that the ALJ’s

failure to obtain a supportable medical opinion on J.W.’s medical and 

 

GAF scale ranges from 0 to 100, with serious impairment in functioning at a 

score of 50 or below. Scores between 51 and 60 represent moderate 

symptoms or a moderate difficulty in social, occupational, or school 

functioning.” Norris v. Comm'r of Soc. Sec., No. 11-5424, 461 Fed. Appx. 

433, 436 n.1 (6th Cir. 2012) (citations omitted). Scores in the range of 61-

70 indicate some mild symptoms. Karger v. Comm’r of Soc. Sec., 414 Fed. 

Appx. 739, 745 (6th Cir. 2011).

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functional equivalence, especially in light of his representation to a pro se

litigant that he would do so, is error requiring remand. More generally, the 

ALJ’s decision that J.W. did not have an impairment or combination of 

impairments was based only on fragments of the record, [R. 12-2, Tr. 25], 

and is therefore not supported by substantial evidence. Garner, 745 F.2d 

at 388. On remand, the ALJ should also obtain updated records both from 

J.W.’s treating providers and from his school, and allow Roberts additional 

time to obtain counsel if she so wishes. 

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Roberts’s

Motion for Summary Judgment [R. 19] be GRANTED, the Commissioner’s 

Motion [R. 20] be DENIED and this case be REMANDED for further 

consideration consistent with this Report and Recommendation.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: July 23, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

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of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 23, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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