UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KRYSTAL SPICER, 

on behalf of minor T.M.S., 

 Plaintiff, 

 Civil Case No. 15-11038 

v. Honorable Linda V. Parker 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

 / 

OPINION AND ORDER

On August 31, 2012, Plaintiff, on behalf of her minor child T.M.S., applied 

for Supplemental Security Income (“SSI”) under the Social Security Act, alleging 

a disability onset date of August 1, 2012. The Social Security Administration 

denied Plaintiff’s application for benefits initially. Upon Plaintiff’s request, 

Administrative Law Judge Jessica Inouye (“ALJ”) conducted a de novo hearing on 

September 30, 2013. The ALJ issued a decision on November 22, 2013, finding 

T.M.S. not disabled within the meaning of the Social Security Act and therefore 

not entitled to benefits. The ALJ’s decision became the final decision of the Social 

Security Commissioner (“Commissioner”) when the Social Security Appeals 

Council denied review. 

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 On March 19, 2015, Plaintiff initiated the pending action challenging the 

Commissioner’s decision. On March 26, 2015, the matter was referred to 

Magistrate Judge Patricia T. Morris “for determination of all non-dispositive 

motions pursuant to 28 U.S.C. § 636(b)(1)(A) and issuance of a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).” (ECF No. 3.) 

The parties subsequently filed cross-motions for summary judgment. (ECF Nos. 

10, 13.) 

 On April 19, 2016, Magistrate Judge Morris issued a Report and 

Recommendation (R&R) in which she recommends that this Court deny Plaintiff’s 

motion for summary judgment and grant the Commissioner’s motion. (ECF No. 

14.) Magistrate Judge Morris first rejects Plaintiff’s arguments that the ALJ erred 

by giving great weight to the opinion of consultative examiner Nick Boneff, Ph.D., 

LP, and state agency consultant Rose Moten, Ph.D. (Id. at Pg ID 479-83.) 

 Magistrate Judge Morris next addresses Plaintiff’s assertion that substantial 

evidence does not support the ALJ’s analysis of T.M.S.’s functionality with respect 

to three of the six relevant domains: acquiring and using information, attending and 

completing tasks, and interacting and relating with others. (Id. at Pg ID 483-87.) 

Magistrate Judge Morris finds substantial evidence supporting the ALJ’s 

conclusion, including the opinion of T.M.S.’s first grade teacher, Susan Harris, 

whose opinion Plaintiff claimed supported a contrary finding. (Id.) The magistrate 

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judge notes that while Harris did find that T.M.S. had very serious problems in 

certain domains, Harris indicated that T.M.S. functions more normally on 

medication. (Id.). Although recognizing that Plaintiff offered contradictory 

evidence, Magistrate Judge Morris finds no error in the ALJ’s decision to give this 

contradictory testimony only some weight. (See id. at Pg ID 480-81.) 

 Lastly, Magistrate Judge Morris addresses Plaintiff’s request for a sentence 

six remand for the Commissioner to consider additional evidence, specifically 

records from Children’s Hospital regarding a December 11, 2013 incident in which 

Plaintiff’s shirt caught fire while she was playing with a lighter, resulting in burns 

on her left flank and chest. Magistrate Judge Morris found that the evidence was 

new, but not material, and therefore that a sentence six remand was not justified. 

(Id. at Pg ID 489-90.) Magistrate Judge Morris reasoned that it was unclear from 

the records whether T.M.S. lit her shirt on fire accidentally or intentionally and 

whether T.M.S. was taking her medication at the time of the incident. (Id. at Pg ID 

489.) 

 At the conclusion of the R&R, Magistrate Judge Morris advises the parties 

that they may object to and seek review of the R&R within fourteen days of service 

upon them. (Id. at Pg ID 490.) Plaintiff filed objections to the R&R on May 3, 

2016. (ECF No. 15.) The Commissioner filed a response to those objections on 

May 11, 2016. (ECF No. 16.) 

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Standard of Review

 The Social Security Act provides: 

Any individual, after any final decision of the Commissioner of Social 

Security made after a hearing to which he was a party . . . may obtain 

a review of such decision by a civil action . . . The court shall have the 

power to enter . . . a judgment affirming, modifying, or reversing the 

decision of the Commissioner of Social Security, with or without 

remanding the cause for a rehearing. 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) (emphasis added); see also Boyes v. Sec’y of Health and 

Human Servs., 46 F.3d 510, 511-12 (6th Cir. 1994). “Substantial evidence is 

defined as ‘such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.’ ” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th 

Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the 

Commissioner’s decision is supported by substantial evidence, the reviewing court 

must defer to that decision “ ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’ ” Longworth v. Comm’r of Soc. 

Sec. Admin. 402 F.3d 591, 596 (6th Cir. 2005) (quoting Warner v. Comm’r of Soc. 

Sec., 375 F.3d 387, 390 (6th Cir. 2004)). 

 The court reviews de novo the parts of an R&R to which a party objects. 

See Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 

2001). However, the Court “is not required to articulate all the reasons it rejects a 

party’s objections.” Id. 

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Plaintiff’s Objections

In her objections to the R&R, Plaintiff argues that “[t]he Magistrate Judge 

erred in relying solely upon evidence as to TMS’ behavior on medication, where 

the record makes clear that she was not always on medication and her behavior at 

such periods was also significant to that analysis.” (ECF No. 15 at Pg ID 493.) 

Plaintiff points to a notation in the treatment notes from Summit Pediatrics to 

contend as well that T.M.S.’s medications wore off at school, arguing that “this 

demonstrates that the medications were not a total panacea.” (Id. at Pg ID 494.) 

Plaintiff contends the magistrate judge disregarded evidence supporting a finding 

that T.M.S. had ongoing problems affecting all the domains when analyzing 

whether she was disabled under the Social Security Act. Plaintiff points to 

Magistrate Judge Morris’ handling of her request for a sentence six remand as 

“[p]erhaps the best example of th[is] error.” (Id. at Pg ID 495.) Plaintiff maintains 

that the December 11, 2013 incident was a “very serious and quite frightening 

incident” and that it does not matter whether it occurred with T.M.S. was on 

medication. (Id.) 

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Analysis

As outlined in the ALJ’s decision and Magistrate Judge Morris’ R&R, there 

was substantial evidence in the record establishing that T.M.S., when on 

medication, had less than marked limitation in the six domains of functioning. In 

her decision, the ALJ acknowledged the evidence reflecting that T.M.S. did not 

always take her medication and that there was a significant change in her 

functioning on those occasions. (See, e.g., ECF No. 7-2 at Pg ID 55-56.) 

Nevertheless, this evidence does not detract from the substantial evidence 

supporting the ALJ’s decision that, when following prescribed treatment T.M.S. 

was not disabled. 

The Social Security Regulations provide in relevant part that in order to 

receive SSI benefits, a child claimant “must follow treatment prescribed by [his or 

her] physician ... if the treatment can reduce [the claimant’s] functional limitations 

so that they are no longer marked and severe.” 20 C.F.R. § 416.930(a). The 

regulations continue that “[i]f you do not follow the prescribed treatment without a 

good reason, we will not find you disabled . . ..” Id. § 416.930(b).1

 At the 

 1

 According to the Social Security Regulations, acceptable means for failing 

to follow prescribed treatment include “mental, educational, and linguistic 

limitations” of the claimant. 20 C.F.R. § 416.930(c). As examples of a good 

reasons, the regulations list: 

(cont’d . . .) 

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administrative hearing, T.M.S. and Plaintiff testified that T.M.S. experienced no 

side effects from her medication. (ECF No. 7-2 at Pg ID 78, 98.) They also 

testified that T.M.S. had no difficulty sleeping. (Id. at 78, 100.) Plaintiff does not 

suggest any reason-- much less a good reason-- why T.M.S. fails to take her 

medication on a regular basis. As such, a finding of disability cannot be based on 

T.M.S.’s behavior when she is not medicated. 

Nevertheless, Plaintiff argues that there is evidence reflecting occasions 

when T.M.S.’s medication did not seem to improve her behavior. The ALJ 

acknowledged this evidence in her decision, which included Plaintiff’s testimony 

 

(1) The specific medical treatment is contrary to the established 

teaching and tenets of your religion. 

(2) The prescribed treatment would be cataract surgery for one eye 

when there is an impairment of the other eye resulting in a severe loss 

of vision and is not subject to improvement through treatment. 

(3) Surgery was previously performed with unsuccessful results and 

the same surgery is again being recommended for the same 

impairment. 

(4) The treatment because of its enormity (e.g. open heart surgery), 

unusual nature (e.g., organ transplant), or other reason is very risky 

for you; or 

(5) The treatment involves amputation of an extremity, or a major part 

of an extremity. 

Id.

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and notations in the Summit Pediatric progress notes. (ECF No. 7-2 at Pg ID 52, 

54.) The information contained in the records from Summit Pediatric, however, 

reflect only Plaintiff’s reports. (See Ex. 9F/4, 9, 10.) The ALJ did not fully credit 

Plaintiff’s testimony and provided valid reasons for not doing so. As such, this 

evidence did not detract from the ALJ’s finding that T.M.S. does not have marked 

limitation in functioning in any of the relevant domains. 

Despite this conclusion, the Court finds a reasonable probability that 

Plaintiff’s undisputedly new and previously unavailable evidence may have caused 

the ALJ to reach a contrary conclusion if the evidence had been presented. 2 See 

Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). This evidence consists of 

records from Children’s Hospital of Michigan, reflecting that T.M.S., after 

becoming angry when her siblings would not play with her, began playing with a 

lighter and subsequently lit her shirt on fire. This resulted in burns to T.M.S.’s left 

flank and chest. It is not evident from the record whether T.M.S. was on her 

medication at the time of the incident. If T.M.S. was taking her medication at the 

 

2 Remand under sentence six of 42 U.S.C. § 405(g) requires that the evidence be 

both new and material, and that there was good cause for not presenting it in the 

prior proceeding. Foster v. Halter, 279 F.3d 348, 357 (6th Cir.2001). Evidence is 

“new” only if it was not in existence or was not available prior to the ALJ’s 

decision. Id. Such evidence is “material” if there is a reasonable probability that 

the ALJ would have reached a different decision had the additional evidence been 

presented. Id. 

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time, this may significantly undermine the ALJ’s previous determination that, 

when medicated, T.M.S. had less than marked limitation in the six domains of 

functioning. As such, the Court finds a remand under sentence six of 42 U.S.C. 

§ 405(g) appropriate. 

For the above reasons, the Court rejects in part and accepts in part Plaintiff’s 

objections to Magistrate Judge Morris’ April 19, 2016 R&R. Therefore, the Court 

adopts in part and rejects in part the recommendations in the R&R. 

 Accordingly, 

IT IS ORDERED that Plaintiff’s motion for summary judgment (ECF No. 

10) is GRANTED IN PART AND DENIED IN PART; 

IT IS FURTHER ORDERED that the Commissioner’s motion for 

summary judgment (ECF No. 13) is DENIED; 

IT IS FURTHER ORDERED that this matter is REMANDED to the 

Commissioner for further proceedings pursuant to sentence six of 42 U.S.C. 

§ 405(g) and ADMINISTRATIVELY CLOSED; 

IT IS FURTHER ORDERED that this Court retains jurisdiction pending 

the completion of further administrative proceedings on remand, and that the 

Commissioner is directed to file the results of the post-remand proceedings with 

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the Court 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: September 28, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, September 28, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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