UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

REBECCA MALONE O/B/O 

H.M., A MINOR, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:15-cv-10226 

District Judge George C. Steeh 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO GRANT PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT (DE 18) AND TO DENY DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 21) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court GRANT Plaintiff’s motion for summary 

judgment, DENY Defendant’s motion for summary judgment, REVERSE the 

Commissioner’s decision, and REMAND this case to the Commissioner and the 

ALJ under Sentence Four of § 405(g) for further consideration consistent with the 

report below. 

II. REPORT 

 Plaintiff, Rebecca Malone on behalf of minor daughter H.M, brings this 

action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of 

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

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 1 of 21 Pg ID 562
2

for supplemental security income child disability. This matter is before the United 

States Magistrate Judge for a Report and Recommendation on Plaintiff’s motion 

for summary judgment (DE 18), the Commissioner’s memorandum in opposition 

and cross motion for summary judgment (DE 21), Plaintiff’s reply (DE 22), and 

the administrative record (DE 11). 

A. Background 

 On April 9, 2012, Plaintiff protectively filed an application for supplemental 

security income on behalf of H.M., alleging that H.M. has been disabled since 

January 1, 1998. (R. at 41.) Plaintiff’s application was denied and she sought a de 

novo hearing before an Administrative Law Judge (“ALJ”). ALJ Jerome B. Blum 

held a hearing on May 16, 2013 and subsequently determined that H.M. was not 

disabled within the meaning of the Social Security Act. (R. at 41-70.) On 

November 19, 2014, the Appeals Council denied Plaintiff’s request for review. (R. 

at 1-4.) ALJ Blum’s decision became the Commissioner’s final decision. Plaintiff 

then timely commenced the instant action. 

B. Plaintiff’s Medical History 

 H.M. has suffered from kidney and genitourinary problems since she was 

very young, requiring her to self-catheterize every day and wear a Foley bag1

 at 

 

1 The FDA describes a Foley bag or Foley catheter as a “flexible tubular device 

that is inserted through the urethra and used to pass fluids to or from the urinary 

tract." 21 C.F.R. § 876.5130(a). 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 2 of 21 Pg ID 563
3

night. (See, e.g., R. at 161-66, 259.) She underwent an MRI on June 15, 2011, 

which revealed severe bilateral hydronephrosis and urinary bladder distension. (R. 

at 173.) On April 5, 2012, H.M. underwent an upper gastrointestinal endoscopy, 

which revealed a normal esophagus. (R. at 191.) On September 13, 2012, H.M. 

was admitted to Crittenton Hospital Medical Center due to vomiting and sore 

throat. (R. at 259.) The emergency department physician, Donald B. Smith, M.D., 

diagnosed her with strep throat and noted that H.M.’s “self cathing may induce 

some trauma or infection.” (R. at 261.) On November 19, 2012, H.M. was 

admitted to the Royal Oak Hospital for pyelonephritis and acute or chronic kidney 

injury. (R. at 277.) She underwent a renal ultrasound that day, which revealed 

severe bilateral hydronephrosis. (R. at 286.) 

 On April 15, 2013, a physician from Comprehensive Urology informed 

H.M.’s treating physician, pediatrician Neda Saker, M.D., that he or she was “very 

concerned” about H.M.’s noncompliance wither her intermittent catheterization 

and overnight catheter drainage, noting that non-compliance could lead to 

worsening renal function and likely renal failure. (R. at 388.) Dr. Saker completed 

a functional equivalence assessment on April 19, 2013. (R. at 408-410.) Dr. Saker 

assessed H.M. as having extreme limitations in the domains of acquiring and using 

information and caring for yourself; having marked limitations in the domains of 

attending and completing tasks, interacting and relating with others, and health and 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 3 of 21 Pg ID 564
4

physical well-being; and having less than marked limitations in moving about and 

manipulating objects. (R. at 408-409.) 

 State agency reviewer Sarah E. Clune, D.O., completed an evaluation on 

May 8, 2013. (R. at 414-15.) Dr. Clune indicated that H.M.’s mental health 

impairments showed a good response to treatment. She disagreed with Dr. Saker’s 

findings, indicating that H.M. had less than marked limitations in interacting and 

relating with others and caring for yourself; a marked limitation in health and 

physical well-being; and no limitation in the other three domains. (R. at 415.) 

 H.M. also suffered from mental impairments. She was admitted to 

Havenwyck hospital on November 10, 2011 due to depression, trouble in school, 

cutting herself, suicidal ideation, and not sleeping well. (R. at 175 and 177.) Hany 

Mekhael, M.D., described H.M. as “easily agitated” and struggling with anxiety. 

(Id.) She was discharged on December 15, 2011 with prescriptions for Lexapro, 

Xanax, Desyrel, and Risperdal, and instructions to follow up with her primary care 

physician and to keep her therapy appointment at Easter Seals. (R. at 175.) 

Kingsley Thomas, M.D., described her prognosis as “good.” (R. at 177.) 

 H.M. presented to Easter Seals on December 14, 2011. (R. at 208.) She 

reported that her most recent bout of depression and suicidal ideation was triggered 

when her boyfriend broke up with her, but noted that she had been depressed and 

self-mutilating for the previous two years. (R. at 218.) She indicated that she had 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 4 of 21 Pg ID 565
5

attempted suicide three or four times. She noted that she got along well with her 

mother, but also that there was a fair amount of conflict at home. H.M. further 

reported that her relationship with her boyfriend was abusive and that a friend had 

attempted to rape her the year before. On January 24, 2012, H.M. reported that she 

did not have suicidal ideations, but that she had cut herself superficially the day 

before. (R. at 224.) Doopyo Hong, M.D., noted that H.M. had poor concentration 

and an attention problem. (Id.) Dr. Hong further assessed that H.M. needed to “be 

on individual therapy first focusing on her anger issue and mood swings,” followed 

by mother-daughter therapy. (R. at 225.) On April 27, 2012, Lalitha Vemuri, 

M.D., advised H.M. to take Adderall on the weekends and increased her dose of 

Lexapro. (R. at 231.) 

 On April 9, 2012, H.M. reported less sadness, depression, and anger for the 

previous three months. (R. at 241.) She noted that she attended all of her 

psychiatric appointments and took her medicine as prescribed, which had helped to 

maintain her mood. (Id.) At her appointment on June 28, 2012, however, H.M. 

reported that she had an incident of wanting to self-injure and that she had been 

angrier since school had let out for the summer. (R. at 338.) According to 

Plaintiff, H.M. would also resist taking her medications. H.M. indicated that she 

no longer wanted to attend therapy and refused to meet with her therapist at times. 

(Id.) On August 1, 2012, H.M. came late to her appointment with multiple scratch 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 5 of 21 Pg ID 566
6

marks on her arms. (R. at 353.) H.M. reported that she refused to meet with the 

therapist who came to her home, and it was fairly clear that she had not been taking 

her Lexapro as prescribed, because she had not run out of it despite not seeing Dr. 

Vemuri since May 30, 2012. (Id.) On August 30, 2012, Ann Marie Ceci, MA, 

LPC, CAADC, CMHP, MHP, QMHP, reported that H.M. cancelled further therapy 

sessions, nothing that she had developed coping skills and no longer needed 

therapy. (R. at 337.) Ms. Ceci recommended future therapy focusing on H.M.’s 

coping skills and struggle to cooperate with her mother. (Id.) 

 On June 17, 2013, H.M. underwent a mental status examination on behalf of 

the state agency. The examiners, Melissa H. Rosenzweig, MA, LLP, and Nick 

Boneff, Ph.D., noted that H.M. was dressed in an “emo” style of clothing, with ear 

piercings and sweatpants. (R. at 418.) The examiners described her as “quite 

fidgety,” with motor activity on the rapid side. (Id.) H.M. admitted to self-harm, 

but noted that she had not done anything since April 2013 (although she still felt a 

compulsion to do so). (R. at 419.) The examiners assessed H.M. as having 

moderate limitations in self-care and caring for her health and physical well-being; 

mild to moderate limitations in her ability to acquire and use information, and mild 

limitations in her ability to tend to or complete tasks. (R. at 420.) 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 6 of 21 Pg ID 567
7

 C. Hearing Testimony 

 At the May 16, 2013 administrative hearing, Plaintiff’s attorney supplied the 

bulk of the statements. He informed the ALJ that H.M., who was born on October 

11, 1997, had to catheterize (“cath”) herself five times per day, wore a Foley bag at 

night, and suffered from frequent infections due to the catheter. (R. at 62.) He 

testified that H.M. had to switch schools because of problems she was having with 

other kids, in part due to having to cath herself every three hours at school. (R. at 

65.) In addition, counsel asserted that H.M. had psychiatric problems and was in a 

mental institute. (R. at 63.) He narrated that at some point H.M. “tried to kill 

herself, poor kid.” (R. at 65.) Plaintiff’s counsel indicated that H.M. was not 

sleeping and had been diagnosed with depression. (R. at 66.) 

 Plaintiff testified that H.M. struggled with the frequent caths. (R. at 67.) 

For example, she has trouble finding a clean, private bathroom at school and gets 

teased about her illness. (R. at 67.) Plaintiff testified that H.M. gets five infections 

per year from the cath, which usually ended in “bringing her to the hospital 

because she gets severely dehydrated faster than normal, healthy people.” (R. at 

68.) Plaintiff testified that H.M. had trouble with bullies, and noted that she did go 

out with friends. (R. at 69.) 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 7 of 21 Pg ID 568
8

 D. THE ADMINISTRATIVE DECISION 

 1. 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 

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;2

 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. In addition, 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 be 

 

2

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

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

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 8 of 21 Pg ID 569
9

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

listed impairment. 20 C.F.R. § 416.926a. 

 To determine 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. 20 C.F.R. § 416.926a. 

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

in one of the 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 

these abilities. 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). 

 2. The ALJ’s Decision 

 Applying this framework, the ALJ concluded that H.M. was not disabled. 

At Step 1, he determined that H.M. had not engaged in substantial gainful activity 

since April 9, 2012. (R. at 44.) 

 At Step 2, the ALJ identified severe impairments of bilateral 

hydronephrosis, recurrent urinary tract infections, neurogenic bladder, major 

depressive disorder, and attention-deficit hyperactivity disorder (“ADHD”). (R. at 

44.) 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 9 of 21 Pg ID 570
10

 At Step 3, the ALJ found that none of H.M.’s severe impairments, either 

alone or in combination, met or medically equaled a listed impairment. (R. at 44.) 

He further found that none of H.M.’s impairments functionally equaled a listed 

impairment. (R. at 45.) In making this determination, the ALJ determined that 

H.M. had: a) no limitation in the domains of 1) acquiring and using information 

and 2) moving about and manipulating objects; b) a less than marked limitation in 

1) attending and completing tasks, 2) interacting and relating with others, and 3) 

the ability to care for herself; and c) a marked limitation in health and physical 

well-being. (R. at 47-53.) As a result, the ALJ concluded that H.M. had not been 

disabled since April 9, 2012. (R. at 54.) 

 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). 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 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 10 of 21 Pg ID 571
11

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.”). 

Furthermore, the claimant “has the ultimate burden to establish an entitlement to 

benefits by proving the existence of a disability.” Moon v. Sullivan, 923 F.2d 

1175, 1181 (6th Cir. 1990). 

 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)); 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 11 of 21 Pg ID 572
12

see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security 

as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). 

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)). 

F. ANALYSIS 

Plaintiff raises four main arguments. First, she contends that the ALJ’s 

finding that H.M. had less than marked impairments in caring for herself is not 

supported by substantial evidence. Second, she makes the same argument with 

respect to the ALJ’s finding that H.M. has a less than marked limitation in 

interacting and relating with others. Third, she asserts that substantial evidence 

establishes that H.M. has an extreme impairment in the domain of health and 

physical well-being. Finally, she argues that the ALJ erred by improperly 

discounting the opinion of her treating physician. The Commissioner opposes the 

motion, asserting that the ALJ’s conclusions were supported by substantial 

evidence. I conclude that the ALJ’s analysis in the domain of “ability to care for 

yourself” was not supported by substantial evidence. 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 12 of 21 Pg ID 573
13

 1. The ALJ’s Analysis in the Domain of “Caring for Yourself” 

 is not Supported by Substantial Evidence. 

Because the ALJ found that H.M.’s impairments caused a “marked” 

impairment in the domain of health and physical well-being, a marked impairment 

in a second domain necessitates a finding of disability. 20 C.F.R. § 416.926a(a). 

Here, Plaintiff contends that the ALJ’s analysis that H.M. has a less than marked 

impairment in the domain of caring for herself was not supported by substantial 

evidence. I agree. 

 In the domain of “caring for yourself,” the Commissioner considers “how 

well [the claimant] maintain[s] a healthy emotional and physical state,” including 

how well he or she gets her “physical and emotional wants and needs met in 

appropriate ways,” how she copes with “stress and changes in [her] environment,” 

and whether she takes care of her “own health, possessions, and living area.” 20 

C.F.R. § 416.926a(k). Here, the ALJ reasoned that, although H.M. had a “history 

of superficial cutting and controlling her anger,” the frequency of such selfmutilation “decreased significantly” after she began therapy. (R. at 52.) He 

pointed to a June 2012 appointment in which H.M. reported that she had come up 

with other coping skills and was committed to not return to her previous behaviors. 

(Id.) He also noted that she engaged in age-appropriate activities, grooming, and 

hygiene. 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 13 of 21 Pg ID 574
14

 Plaintiff asserts that the ALJ’s rationale was based on selective citation to a 

few “isolated scraps of evidence,” which he also misstated. (DE 18 at 11.) 

Plaintiff first takes issue with the ALJ’s contention that H.M.’s self-mutilation 

decreased after beginning therapy, noting that the reports on which the ALJ relied 

followed an extensive history of self-mutilation and several suicide attempts. (DE 

18 at 12.) Plaintiff contends that H.M. missed or refused treatment after June 1, 

2012, so the reports on which the ALJ relied only evidenced her condition in April 

and May of that year. For example, she points to a June 28, 2012 periodic review 

from the Easter Seals, in which Ms. Ceci indicated that H.M. had “one incident (2 

weeks ago) of feeling self-injurious in response to having a lot of stress.” (R. at 

338.) 

 As Plaintiff points out, the Regulations describe the following with respect 

to the domain at issue: 

Caring for yourself means recognizing when you are ill, following 

recommended treatment, taking medication as prescribed, following 

safety rules, responding to your circumstances in safe and appropriate 

ways, making decisions that do not endanger yourself, and knowing 

when to ask for help from others. 

20 C.F.R. § 416.926a(k)(1)(iv) (emphasis added). The Regulations go on to list 

examples of limited functioning in caring for yourself but qualify the list of 

examples by noting that “the examples do not necessarily describe a “marked” or 

“extreme” limitation.” Among the seven listed examples of limited functioning is 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 14 of 21 Pg ID 575
15

“engag[ing] in self-injurious behavior (e.g., suicidal thoughts or actions, selfinflicted injury, or refusal to take your medication), or you ignor[ing] safety rules.” 

Id. 

 Plaintiff argues that, instead of recognizing that H.M.’s medical condition 

left her unable to judge what was best for her, the ALJ interpreted her refusing 

therapy as an admission that her mental condition was not as severe as she 

reported. According to Plaintiff, the ALJ made the same error with respect to her 

sometime failure to self-catheterize. 

 The Commissioner counters that the ALJ did not ignore Plaintiff’s history of 

self-mutilation, suicidal ideation, and hospital treatment for her mental health 

issues, but actually explicitly mentioned those issues. (R. at 46.) She further 

argues that the ALJ did not use H.M.’s “sometime failure to self-catheterize” as a 

basis to question her credibility. (DE 21 at 16.) According to the Commissioner, 

this discussion was merely an accurate summary of the record, and his decision to 

find a less than marked impairment was echoed by Dr. Sarah E. Clune. (R. at 414.) 

 Plaintiff’s argument on this issue has merit. The Commissioner does not 

address the ALJ’s treatment of H.M.’s refusal to see her therapist, despite “the 

apparent effectiveness of treatment.” (R. at 46.) While the Commissioner is 

correct that the ALJ did not technically discount Plaintiff’s credibility based on 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 15 of 21 Pg ID 576
16

H.M.’s failure to self-catheterize, he explicitly did so with respect to her refusal to 

continue therapy. The ALJ’s decision reads as follows: 

Despite the apparent effectiveness of treatment, the claimant 

essentially stopped attending therapy sessions in June 2012, despite 

the fact that the therapist visited her in her home. The claimant was 

discharged from treatment at the end of August 2012. It appears that 

the claimant’s pediatrician is currently prescribing psychotropic 

medications, but there is no evidence that she has received any 

treatment from a therapist or psychiatrist since that time. This 

suggests that Ms. Malone’s allegations regarding the severity of 

claimant’s psychiatric symptoms are not entirely credible. 

(R. at 46) (emphasis added.) The ALJ, therefore, used H.M.’s failure to continue 

therapy as a reason to discount Plaintiff’s credibility, but did not address this 

failure in his analysis of H.M.’s ability to care for herself. (See R. at 52.) 

However, H.M.’s decision to discontinue therapy (that the ALJ considered 

effective and that the therapists at Easter Seals recommended she continue) seems 

to weigh against her ability to make decisions that do not endanger her and to 

know when to ask for help from others. 

 In addition, the record seems to contradict the ALJ’s conclusion that there 

was no evidence that H.M. continued to self-mutilate after stopping therapy and 

that her condition improved with the use of psychotropic medication. Instead, an 

August 1, 2012 record indicates that H.M. reported to Dr. Vemuri that the 

medication was not working to address her depression and self-mutilation. (R. at 

358.) Dr. Vemuri reported that, on the same day, H.M. had “multiple scratch 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 16 of 21 Pg ID 577
17

marks on both arms . . . did that 2 nights ago after boyfriend broke up with her . . . 

.” (R. at 353.) The Commissioner dismisses this as a “single scratching incident” 

that does not upend the ALJ’s entire determination. (DE 21 at 17.) However, the 

ALJ erred by considering H.M.’s refusal to attend therapy only as a reason to 

discount her credibility, and not with respect to her ability to care for herself. In 

addition, he overstated H.M.’s improvement with the use of psychotropic 

medication. As a result, I recommend that the Court remand the matter back to the 

ALJ with instructions to re-analyze H.M.’s impairments with respect to the domain 

of “caring for yourself” in conformity with the concerns I have just highlighted. 

 2. The ALJ Should also Re-Analyze the Domain of 

 Interacting and Relating with Others. 

 Because a proper analysis of H.M.’s ability to care for herself could lead to a 

decision that she is disabled, this Court need not address Plaintiff’s additional 

arguments.3

 However, I recommend that the ALJ address a further, troubling issue 

 

3

 I have, however, reviewed Plaintiff’s two remaining arguments and do not find 

them to have merit. First, with regard to Plaintiff’s argument related to the ALJ’s 

finding of only a marked impairment in the domain of health and physical wellbeing, the Commissioner correctly points out that the ALJ explicitly discussed 

H.M.’s medications and treatments in accordance with 20 C.F.R. § 416.926a, along 

with the fact that the record revealed only one hospitalization for dehydration 

associated with a urinary tract infection. (R. at 53.) Second, with respect to 

Plaintiff’s argument that the ALJ failed to appropriately weigh the opinion 

evidence, substantial evidence supports the ALJ’s treatment of Dr. Saker’s opinion 

and he gave good reasons for discounting its weight, including the lack of 

explanation for her findings, the report of frequent hospital visits related to UTIs, 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 17 of 21 Pg ID 578
18

on remand, in his analysis that H.M. has less than marked limitations in the domain 

of interacting and relating with others. Specifically, the ALJ notes approvingly 

that H.M. has been able to “establish intimate relationships in the past.” (R. at 50.) 

It is unclear to me whether the ALJ is referring to H.M.’s former boyfriend, who 

she reported was abusive toward her. (R. at 218.) Even the Commissioner 

concedes that “it would have been better if the ALJ did not go down this road.” 

(DE 21 at 20.) The ALJ should further explain his analysis in this area to be clear 

as to whether he is basing, to any extent, his conclusions regarding H.M.’s ability 

to interact and relate with others on her long-term abusive relationship. If so, he 

should give additional detail as to how this factors into and affects his analysis, and 

how he weighs this fact relative to others in support of this finding. 

 3. Remand Under Sentence Four 

 The Social Security Act authorizes “two types of remand: (1) a post 

judgment remand in conjunction with a decision affirming, modifying, or reversing 

a decision of the [Commissioner] (a sentence-four remand); and (2) a pre-judgment 

remand for consideration of new and material evidence that for good cause was not 

previously presented to the [Commissioner] (a sentence-six remand).” Faucher v. 

Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir.1994) (citing 42 

U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to 

 

which is not supported by the record, and the fact that Dr. Saker is a pediatrician, 

and not a urologist or therapist. . 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 18 of 21 Pg ID 579
19

“enter upon the pleadings and transcript of the record, a judgment affirming, 

denying, or reversing the decision of the [Commissioner], with or without 

remanding the cause for a hearing. 42 U.S.C. § 405(g). Where there is insufficient 

support for the ALJ’s findings, “the appropriate remedy is reversal and a sentencefour remand for further consideration.” Morgan v. Astrue, 10–207, 2011 WL 

2292305, at *8 (E.D.Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174); see also 

White v. Comm’r of Soc. Sec., 312 F. App’x 779, 790 (6th Cir. 2009) (“If a court 

determines that substantial evidence does not support the [Commissioner’s] 

decision, the court can reverse the decision and immediately award benefits only if 

all factual issues have been resolved and the record adequately establishes a 

plaintiff’s entitlement to benefits.” (internal quotations omitted)). Here, there is 

insufficient support for the ALJ’s findings and the factual issues have not been 

resolved. Accordingly, I recommend that the Court remand this case under 

Sentence Four: 1) for further consideration of H.M.’s impairments with respect to 

the domain of “caring for yourself”; and 2) to clarify or further develop his 

analysis of Plaintiff’s impairments in the domain of interacting and relating with 

others. 

G. CONCLUSION

Due to the errors outlined above, Plaintiff is entitled to an order remanding 

this case to the Social Security Administration pursuant to Sentence Four of 42 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 19 of 21 Pg ID 580
20

U.S.C. § 405(g). Accordingly, the Undersigned RECOMMENDS that the Court 

GRANT Plaintiff’s motion for summary judgment (DE 18), DENY Defendant’s 

motion for summary judgment (DE 21), REVERSE the Commissioner of Social 

Security’s non-disability finding, and REMAND this case to the Commissioner 

and the ALJ under Sentence Four of § 405(g). 

III. PROCEDURE ON OBJECTIONS

 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 & 

Human Servs., 932 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 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 20 of 21 Pg ID 581
21

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. 

Dated: December 9, 2015 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on December 9, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

2:15-cv-10226-GCS-APP Doc # 23 Filed 12/09/15 Pg 21 of 21 Pg ID 582