UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SARAH RODRIGUEZ, o/b/o U.R.R., 

 

 Plaintiff, Civil Action No. 14-14170 

 Honorable Nancy G. Edmunds 

 Magistrate Judge David R. Grand 

v. 

 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION 

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [13, 15] 

Plaintiff Sarah Rodriguez (“Rodriguez”) brings this action on behalf of her minor 

daughter, U.R.R. (“Plaintiff”),1 pursuant to 42 U.S.C. §405(g), challenging the final decision of 

Defendant Commissioner of Social Security (“Commissioner”) denying Plaintiff’s application 

for Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). Both 

parties have filed summary judgment motions [13, 15], which have been referred to this Court 

for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). 

I. RECOMMENDATION 

For the reasons set forth below, the Court finds that the Administrative Law Judge’s 

(“ALJ”) conclusion that Plaintiff is not disabled under the Act is not supported by substantial 

evidence. Accordingly, the Court recommends that the Commissioner’s Motion for Summary 

Judgment [15] be DENIED, Plaintiff’s Motion for Summary Judgment [13] be GRANTED IN 

PART to the extent it seeks remand and DENIED IN PART to the extent it seeks an award of 

 

1

 For convenience, the Court will refer to U.R.R, the minor child, as “Plaintiff” throughout this 

brief, although her mother, Sarah Rodriguez, is the named plaintiff in this action. 

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benefits, and that, pursuant to sentence four of 42 U.S.C. §405(g), this case be REMANDED to 

the ALJ for further proceedings consistent with this Report and Recommendation. 

II. REPORT 

A. Procedural History 

On January 24, 2012, an application for SSI was filed on behalf of Plaintiff, alleging a 

disability onset date of January 15, 2007. (Tr. 120-28). This application was denied initially on 

May 15, 2012. (Tr. 78-81). A timely request for an administrative hearing was filed on 

Plaintiff’s behalf, and a hearing was held on June 26, 2013, before ALJ Richard Sasena. (Tr. 42-

66). Both Plaintiff and Rodriguez appeared and testified at the hearing, represented by attorney 

Bethany Versical. (Id.). On August 8, 2013, the ALJ issued a written decision finding that 

Plaintiff is not disabled. (Tr. 21-37). On August 26, 2014, the Appeals Council denied review. 

(Tr. 1-5). On behalf of Plaintiff, Rodriguez filed for judicial review of the final decision on 

October 29, 2014. (Doc. #1). 

B. Background 

 1. Disability Reports

Plaintiff was born in April of 2000, making her eleven years old at the time her 

application for SSI was filed. (Tr. 47). In an undated disability report, Ms. Rodriguez reported 

that Plaintiff was 4’9” tall and weighed 185 pounds. (Tr. 144). According to Ms. Rodriguez, 

Plaintiff suffers from attention deficit hyperactivity disorder (“ADHD”), sleep apnea, and 

asthma, and first became disabled on January 15, 2007. (Tr. 145). At the time of the report, 

Plaintiff was in the sixth grade and was taking special education classes. (Tr. 148). According 

to Ms. Rodriguez, Plaintiff was using a CPAP machine for her sleep apnea and was taking 

medication for both her mental impairments and her asthma. (Tr. 147). She did not experience 

any side effects from these medications/treatments. (Id.). 

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In a February 11, 2012 daily activities report, Ms. Rodriguez indicated that Plaintiff 

dresses herself for school, attends school, watches television, and does her homework on a daily 

basis. (Tr. 152). When Plaintiff is not in school, she reads, writes, does chores, and watches 

television. (Id.). Ms. Rodriguez indicated that Plaintiff generally gets along well with her 

friends and adults, but has difficulty “when things don’t go her way...” (Id.). Apparently, 

Plaintiff has had “a lot” of verbal confrontations at school, but only one physical confrontation 

(which resulted in her suspension). (Id.). Plaintiff is able to perform chores around the house 

(such as dusting, sweeping, vacuuming, and mopping). (Tr. 154). 

 2. The June 26, 2013 Hearing Before the ALJ 

By the time of the administrative hearing, Plaintiff was thirteen years old and had just 

finished the seventh grade. (Tr. 46). She testified that she performs chores at home, including 

cleaning her room, but said that she sometimes needs to be reminded by her mother. (Tr. 47, 

50). She testified that her recent grades were poor – two Es, two Cs, and one D – but said that 

she gets along well with her teachers. (Tr. 48). Plaintiff indicated that she enjoys singing and 

dancing, and likes to go walking, watch movies, and talk with her friends. (Tr. 48-49). She has 

difficulty sleeping at night because her CPAP machine gets “tangled up,” and she falls asleep in 

school almost every day. (Tr. 51-52, 60). 

Ms. Rodriguez testified that Plaintiff takes two medications in the morning (Adderall and 

Prozac), as well as one in the evening (Abilify), but did not believe that these medications caused 

any side effects. (Tr. 54, 65). Plaintiff also uses a nebulizer and an inhaler on a daily basis to 

control her asthma. (Tr. 53, 63-64). According to Ms. Rodriguez, Plaintiff suffers from mood 

swings and depression and has low self-esteem (because of her weight problem). (Tr. 57, 63). 

She misses a lot of school, either because she is feeling tired or depressed. (Tr. 59). 

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 3. Medical Evidence, School Records, and Evaluations 

The Court has thoroughly reviewed Plaintiff’s medical record, as well as her school 

records (including teacher questionnaires) and other evaluations. In lieu of summarizing these 

materials here, the Court will make references and provide citations to the record as necessary in 

its discussion of the parties’ arguments. 

C. Framework for Child Disability Determinations 

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 Social Security regulations set forth a sequential three-step process for 

determining children’s disability claims: first, the child must not be engaged in “substantial 

gainful activity”; second, the child must have a “severe” impairment; and third, the severe 

impairment must meet, medically equal, or functionally equal one of the impairments listed in 20 

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

To “meet” a listed impairment, a child must demonstrate both the “A” and “B” criteria of 

the impairment. See 20 C.F.R. Part 404, Subpart P, Appendix 1. “Paragraph A of the listings is 

a composite of medical findings which are used to substantiate the existence of a disorder,” 

whereas the “purpose of the paragraph B criteria is to describe impairment-related functional 

limitations which are applicable to children.” Id. Further, to be found disabled based on meeting 

a listed impairment, the claimant must exhibit all the elements of the listing. See Elam ex rel. 

Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003). 

If a child’s impairment does not “meet” a listed impairment, the impairment may still be 

medically or functionally equal in severity and duration to the medical criteria of a listed 

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impairment. See 20 C.F.R. §416.926a. “Medical equivalency is covered by 20 C.F.R. §416.926; 

functional equivalency is covered by Section 416.926a.” Vansickle v. Comm’r of Soc. Sec., 277 

F. Supp. 2d 727, 729 (E.D. Mich. 2003). 

“To determine medical equivalence, the Commissioner compares the symptoms, signs, 

and laboratory findings concerning the alleged impairment with the medical criteria of the listed 

impairment.” Walls v. Comm’r of Soc. Sec., 2009 WL 1741375, at *8 (S.D. Ohio June 18, 2009) 

(citing 20 C.F.R. §416.926(a)). A claimant can demonstrate medical equivalence in any of three 

ways: 

(1) by demonstrating an impairment contained in the Listings, but which 

does not exhibit one or more of the findings specified in the particular 

listing, or exhibits all of the findings but one or more of the findings is not 

as severe as specified in the particular listing, if the claimant has other 

findings related to his impairment that are at least of equal medical 

significance to the required criteria; 

(2) by demonstrating an impairment not contained in the Listings, but with 

findings at least of equal medical significance to those of some closely 

analogous listed impairment; or 

(3) by demonstrating a combination of impairments, no one of which 

meets a Listing, but which in combination produce findings at least of 

equal medical significance to those of a listed impairment. 

Evans ex rel. DCB v. Comm’r of Soc. Sec., 2012 WL 3112415, at *6 (E.D. Mich. Mar. 21, 2012) 

(quoting Koepp v. Astrue, 2011 WL 3021466, at *10 (E.D. Wis. July 22, 2011)); see also 20 

C.F.R. §416.926. “The essence of these subsections is that strict conformity with the Listing 

Requirements is not necessarily required for a finding of disability. If a plaintiff is only able to 

demonstrate most of the requirements for a Listing or if he or she is able to demonstrate 

analogous or similar impairments to the impairments of a Listing, the plaintiff may nonetheless 

still satisfy the standards if the plaintiff can show impairments of equal medical significance.” 

Evans, 2012 WL 3112415, at *7 (quoting Emeonye v. Astrue, 2008 WL 1990822, at *4 (N.D. 

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Cal. May 5, 2008)). 

Regarding functional equivalence, there are six “domains” that an ALJ considers: (1) 

acquiring and using information; (2) attending and completing tasks; (3) interacting and relating 

with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health 

and physical well-being. See 20 C.F.R. §416.926a(b). Functional equivalence to a listed 

impairment exists when the child has an “extreme” limitation in one of the six domains or 

“marked” limitations” in two of the six. See 20 C.F.R. §416.926a(d). An “extreme” limitation 

exists when a child’s impairment(s) interferes “very seriously” with the child’s ability to 

independently initiate, sustain, or complete activities. See 20 C.F.R. §416.926a(e)(3)(i). A 

“marked” limitation results if the child’s impairment(s) interferes “seriously” with the child’s 

ability to independently initiate, sustain, or complete activities. See 20 C.F.R. 

§416.926a(e)(2)(i). 

D. The ALJ’s Findings

At step one, the ALJ found that Plaintiff has never engaged in substantial gainful activity. 

(Tr. 24). At step two, the ALJ found that Plaintiff has the following severe impairments: 

asthma, learning disability, dysthymic disorder, post-traumatic stress disorder, obesity, 

obstructive sleep apnea, and ADHD. (Id.). At step three, the ALJ concluded that these 

impairments do not meet or medically equal a listed impairment. (Id.). The ALJ also found that 

Plaintiff’s impairments do not functionally equal any Listing because she has “less than marked” 

limitations in all six functional domains. (Tr. 30-37). 

E. Standard of Review 

The District Court has jurisdiction to review the Commissioner’s final administrative 

decision pursuant to 42 U.S.C. §405(g). Judicial review under this statute is limited in that the 

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court “must affirm the Commissioner’s conclusions absent a determination that the 

Commissioner has failed to apply the correct legal standard or has made findings of fact 

unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 

591, 595 (6th Cir. 2005) (internal citations omitted); Rabbers v. Comm’r of Soc. Sec., 582 F.3d 

647, 654 (6th Cir. 2009) (“[I]f an agency has failed to adhere to its own procedures, we will not 

remand for further administrative proceedings unless the claimant has been prejudiced on the 

merits or deprived of substantial rights because of the agency’s procedural lapses.”) (internal 

quotations omitted). 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 quotations omitted). 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.”). 

When reviewing the Commissioner’s factual findings, the court is limited to an 

examination of the record and must consider the record as a whole. Bass, 499 F.3d at 512-13; 

Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The court “may 

look to any evidence in the record, regardless of whether it has been cited by the Appeals 

Council,” or in this case, the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 

2001); Walker v. Sec’y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989). There is 

no requirement, however, that either the ALJ or this court discuss every piece of evidence in the 

administrative record. See Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 

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2006) (“[A]n ALJ can consider all evidence without directly addressing in his written decision 

every piece of evidence submitted by a party.”) (internal quotations omitted). 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 citations omitted). 

F. Analysis

As set forth above, the ALJ found that Plaintiff has several severe impairments, including 

asthma, a learning disability, dysthymic disorder, post-traumatic stress disorder, obesity, 

obstructive sleep apnea, and ADHD. (Tr. 24). He then determined that these impairments do not 

functionally equal a listing. (Tr. 29-37). 

In order to establish functional equivalence, Plaintiff must show marked limitations in 

two domains of functioning, or an extreme limitation in one domain. See 20 C.F.R. 

§416.926a(d). After reviewing the medical and other record evidence, reports, and hearing 

testimony, the ALJ found that Plaintiff has “less than marked” limitations in all six functional 

equivalence domains: acquiring and using information, attending and completing tasks, 

interacting and relating with others, moving about and manipulating objects, caring for herself, 

and health and physical well-being. (Tr. 29-37). Plaintiff now argues that the ALJ erred in 

finding that she has less than marked limitations in three domains: attending and completing 

tasks, caring for herself, and health and physical well-being.2

 (Doc. #13 at 17-23). 

The domain of health and physical well-being considers the cumulative physical effects 

of physical or mental impairments and any associated treatments or therapies on a child’s 

functioning that were not considered in the evaluation of a child’s ability to move about and 

 

2

 Plaintiff does not challenge the ALJ’s conclusions with respect to the other three domains. 

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manipulate objects. See 20 C.F.R. §416.926a(l). Examples of limited functioning in this domain 

include generalized symptoms, such as weakness, dizziness, agitation, lethargy, or psychomotor 

retardation because of any impairment(s); somatic complaints related to an impairment (e.g., 

seizure or convulsive activity, headaches, incontinence, recurrent infections, allergies, changes in 

weight or eating habits, stomach discomfort, nausea, or insomnia); limitations in physical 

functioning because of treatments (e.g., chemotherapy, multiple surgeries, chelation, pulmonary 

cleansing, or nebulizer treatments); exacerbations from an impairment(s) that interferes with 

physical functioning; or medical fragility requiring intensive medical care to maintain a level of 

health and physical well-being. See 20 C.F.R. §416.926a(l)(4). 

In concluding that Plaintiff has a less than marked limitation in the domain of health and 

physical well-being, the ALJ acknowledged Plaintiff’s asthma, but noted that respiratory 

examinations were generally normal and Plaintiff has not required specialized respiratory care. 

(Tr. 36-37, 346, 351, 357, 387). The ALJ further noted that, although Plaintiff and her mother 

testified to the use of an inhaler and nebulizer on a daily basis, the record evidenced treatment for 

only two asthma exacerbations, one in November 2012 (which was described as mild and 

secondary to an upper respiratory infection) and one in April 2013 (which was treated with 

prednisone and did not require hospitalization). (Tr. 26, 347-48, 391-94). The ALJ also cited to 

a February 2012 report from Plaintiff’s sixth-grade teacher, indicating that she participated in 

gym and recess. (Tr. 26, 168). In the same report, that teacher indicated that she had never seen 

Plaintiff have an issue with her asthma in the six months she had known her. (Tr. 162, 168). 

The bigger issue, from the Court’s perspective, is the substantial evidence of Plaintiff’s 

extreme lethargy, which, as the ALJ recognized (Tr. 27-29), appears to have worsened 

significantly during the 2012-13 school year. Plaintiff argues that, in concluding that she has a 

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less than marked limitation in health and physical well-being, the ALJ failed to give appropriate 

credence to a May 13, 2013 Teacher Questionnaire completed by Loretta Robinson (Plaintiff’s 

resource room specialist at school), which Plaintiff argues establishes at least a marked limitation 

in this domain. (Doc. #13 at 22). On that form, asked to describe any medical conditions that 

interfere with Plaintiff’s functioning at school, Ms. Robinson set forth Plaintiff’s impairments 

and then listed the medications she was taking (including Adderall, clonidine, Risperdal, and 

fluoxetine). (Tr. 438). Ms. Robinson then stated: “These medications cause [Plaintiff] to be 

very tired and often fall asleep in school.” (Id.). Plaintiff argues that the ALJ erred in purporting 

to give “great weight” to Ms. Robinson’s opinion, while simultaneously declining to find that her 

statements about Plaintiff’s lethargy evidenced at least marked limitations in certain of the 

functional domains. (Doc. #13 at 22). The Court finds that the ALJ’s analysis and conclusions 

in this regard are not supported by substantial evidence. 

As an initial matter, the Court recognizes that, under the applicable regulations, Ms. 

Robinson is not an acceptable medical source, and the ALJ has considerable discretion in 

weighing her opinion. See Social Security Ruling (“SSR”) 06-03p, 2006 WL 2329939, at *2, 5 

(Aug. 9, 2006) (“The evaluation of an opinion from a ‘non-medical source’ who has seen the 

individual in his or her professional capacity depends on the particular facts in each case.”). 

Here, the ALJ complied with SSR 06-03p by considering Ms. Robinson’s opinion and explaining 

that he gave it “great weight” to the extent it was consistent with his other findings. (Tr. 29). 

See SSR 06-03p, 2006 WL 2329939, at *6 (“[T]he adjudicator generally should explain the 

weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of 

the evidence in the determination or decision allows a claimant or subsequent reviewer to follow 

the adjudicator’s reasoning, when such opinions may have an effect on the outcome of a case.”). 

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The problem, however, is that while purporting to give great weight to Ms. Robinson’s 

opinion, the ALJ unfairly minimized her repeated comments about Plaintiff’s lethargy, as well as 

the other significant evidence of Plaintiff’s debilitating fatigue in the record. Indeed, the ALJ 

acknowledged Ms. Robinson’s observation that Plaintiff “appears tired and falls asleep in 

school,” but then stated, “While attributing such to [Plaintiff’s] use of medication, Ms. Robinson 

stated that she has never known the child outside of the use of such medication.” (Tr. 29 (citing 

Tr. 438)). But whether Ms. Robinson has ever known Plaintiff outside of her use of medication 

is immaterial to the salient question – whether Plaintiff’s lethargy evidences a marked or extreme 

limitation in the relevant domains. The ALJ also appears to have discounted Ms. Robinson’s 

statements about Plaintiff’s drowsiness because, while “the claimant and/or the claimant’s 

mother attributed [that condition] to side effects of medication3

 ... [the medical records 

indicated] no significant concerns regarding side effects of medications ....”4 (Tr. 27; see also

Tr. 36 (noting a “lack of significant complaints of side effects of medications” in Plaintiff’s 

mental health treatment notes)). (Tr. 36). Apparently, then, the ALJ seems to have discounted 

Plaintiff’s lethargy simply because the record does not conclusively establish that this condition 

is caused by her medications. 

The Court believes this is inappropriate and agrees with Plaintiff that, “Regardless of 

whether [her] lethargy is caused by her medications or another medical condition – for example, 

her sleep apnea or depression – this does not change the fact that the behavior is clearly a 

problem that is limiting her functioning ....” (Doc. #16 at 6). In other words, it is immaterial 

 

3

 Actually, Plaintiff, who was merely thirteen years old at the time of the hearing before the ALJ, 

testified as follows regarding her extreme lethargy: “Q. Okay. Now do your medications help 

you with that? With the tiredness? A. No.” (Tr. 51). And, Plaintiff’s mother testified that she 

did not attribute Plaintiff’s lethargy to side effects of her medications. (Tr. 54). 

4

 However, elsewhere in his decision the ALJ wrote, “Treatment notes are consistent with 

complaints of ... low energy ....” (Tr. 26). 

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whether Ms. Robinson is correct that it is Plaintiff’s medications (or their side effects) that 

“cause [her] to be very tired and often fall asleep in school” (Tr. 438); the fact remains that the 

record is replete with evidence of Plaintiff’s ongoing significant lethargy and fatigue, which were 

noted to greatly impact her ability to function in school (at least during the period of the “decline 

in the [Plaintiff’s] academic progress” noted by the ALJ). (Tr. 27). This suggests at least the 

possibility of a marked (or even extreme) limitation in the domain of health and physical wellbeing, which should be more fully considered by the ALJ. 

For example, in his decision, the ALJ repeatedly notes that the record “reveals persistent 

reports of sleeping during class,” “a decline in [Plaintiff’s] academic progress, with reports of 

frequent sleeping during class,” “excessive sleepiness,” “frequent sleeping in class,” and 

“excessive absences and frequent sleeping during school.” (Tr. 26, 27, 32, 36). Plaintiff’s 

lethargy is also mentioned throughout Ms. Robinson’s Teacher Questionnaire, as she comments 

in sections unrelated to health and physical well-being that Plaintiff “is often extremely lethargic 

and often sleeps in class” and that, due to her lethargy, “often times you have to get her attention 

repeatedly in a conversation.”5

 (Tr. 433, 434). Similarly, Plaintiff’s seventh grade language arts 

teacher, Ms. Quince observed that Plaintiff “sleeps frequently in class,” and, per her mother, has 

a “sleeping condition that attributes to her falling asleep a lot or being drowsy.” (Tr. 417). 

Additionally, Plaintiff argues that the ALJ erred in failing to properly analyze an April 

2013 report from school psychologist Erin Stutler. (Doc. #13 at 23-25). It is well-established 

that an ALJ need not discuss every piece of evidence in his written decision; rather, he need only 

provide enough explanation to allow the Court to determine whether the decision is supported by 

substantial evidence. See, e.g., Kornecky, 167 F. App’x at 508. In this case, however, where 

 

5 See infra, fn. 6. 

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there is other abundant evidence of lethargy impeding Plaintiff’s school performance, and even 

ability to function while there, the Court finds instructive Dr. Stutler’s observations that Plaintiff 

“put her head down” when expected to work independently in class, that her teachers reported 

she had “become more and more withdrawn in recent months,” and that her “health conditions 

are preventing her from attending school regularly and are hindering her performance in the 

classroom.” (Tr. 407, 408). 

Given all of this evidence, the ALJ’s finding that Plaintiff has a less than marked 

limitation in the domain of health and physical well-being is not supported by substantial 

evidence. Indeed, where the regulations specifically provide that “lethargy” is an example of 

limited functioning in this domain, see 20 C.F.R. §416.926a(l)(4), it certainly appears that 

Plaintiff’s lethargy may interfere “very seriously” with her ability to independently initiate, 

sustain, or complete activities, and, thus, rise to the level of an extreme limitation.6

 For all of 

these reasons, remand is required to more fully evaluate the foregoing evidence.7

 

 

6

 Even if Plaintiff’s limitation in this domain is found to be only marked (as opposed to extreme), 

Plaintiff’s lethargy – and the fact that she either misses school or falls asleep in school on a 

regular basis – suggests at least the possibility of marked limitations in other domains as well. 

Specifically, the regulations provide that examples of limited functioning in the domain of 

attending and completing tasks include being slow to focus on, or failing to complete, activities 

of interest; repeatedly becoming sidetracked from activities or frequently interrupting others; and 

requiring extra supervision to remain engaged in an activity. See 20 C.F.R. §416.926a(h)(3). 

Here, within the domain of attending and completing tasks, Ms. Robinson specifically opined 

that Plaintiff has a “serious problem” in “focusing long enough to finish assigned activity or 

task” and “working at reasonable pace/finishing on time.” (Tr. 434). She further noted that, 

“Due to [Plaintiff’s] lethargy oftentimes you have to get her attention repeatedly in a 

conversation.” (Tr. 434). Thus, for the same reasons discussed above, on remand, the ALJ 

should carefully consider the effects of Plaintiff’s lethargy in determining her functional 

limitations in other domains as well. 

7

 Plaintiff advances other arguments before this Court, including arguments that the ALJ erred in 

failing to discuss her Global Assessment of Functioning scores and in failing to consider the 

assistance she receives in order to function. (Doc. #13 at 23-26). Because the Court is 

recommending remand other grounds, however, it need not address these arguments. 

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III. CONCLUSION 

For foregoing reasons, the Court RECOMMENDS that the Commissioner’s Motion for 

Summary Judgment [15] be DENIED, Plaintiff’s Motion for Summary Judgment [13] be 

GRANTED IN PART to the extent it seeks remand and DENIED IN PART to the extent it seeks 

an award of benefits, and that, pursuant to sentence four of 42 U.S.C. §405(g), this case be 

REMANDED to the ALJ for further proceedings consistent with this Report and 

Recommendation. 

Dated: January 13, 2016 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE 

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service 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. See Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. 

Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). The filing of objections which 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. See Willis v. Sec’y 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). 

Pursuant to E.D. Mich. L.R. 72.1(d)(2), a copy of any objections is to be served upon this 

magistrate judge. 

 

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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 January 13, 2016. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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