UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

SHARNELLA DANIELS,

on behalf of T.S.L.,

Plaintiff, Civil Action No. 15-12275

 Honorable Judith E. Levy

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

___________________________/

REPORT AND RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY JUDGMENT [R. 15, 16] 

Proceeding pro se on behalf of her minor son T.S.L., Plaintiff 

Sharnella Daniels appeals a final decision of Defendant Commissioner of 

Social Security (“Commissioner”) denying T.S.L.’s application for 

supplemental security income benefits (“SSI”) under the Social Security Act 

(the “Act”). 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). After review of the record, the Court finds that the 

administrative law judge’s (“ALJ”) decision is supported by substantial 

evidence, and thus RECOMMENDS that:

• the Commissioner’s motion [R. 16] be GRANTED; 

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• Daniels’ motion [R. 15] be DENIED; and

• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. T.S.L.’s Background and Disability Application

Born in August 2005, T.S.L. was seven when Daniels filed his 

application for disability benefits on December 10, 2012. [R. 13-6, Tr. 109]. 

At the time of filing, T.S.L. was in second grade and not in special 

education classes. [Id., Tr. 115]. Daniels alleges that he is disabled by 

attention deficit hyperactivity disorder (“ADHD”) and a learning disability. 

[R. 13-2, Tr. 37]. Although Daniels alleged a disability onset date of 

January 1, 2011, [R. 13-6, Tr. 109], the relevant inquiry is whether T.S.L. 

was disabled on or after his application date – December 10, 2012. 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.”). 

After T.S.L.’s claim was denied initially, Daniels filed a timely request 

for an administrative hearing, which took place on February 5, 2014, and 

included the testimony of Daniels on T.S.L.’s behalf. [R. 13-2, Tr. 32-48]. 

In a March 6, 2014 written decision, the ALJ found T.S.L. to be not 

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disabled. [Id., Tr. 15-28]. The Appeals Council denied review, making the 

ALJ’s decision the final decision of the Commissioner, and Daniels timely 

filed for judicial review. [Id., Tr. 1-4; R. 1]. 

B. The ALJ’s Application of the Disability Framework

A child under the age of 18 will be considered disabled 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, assessing: (1) whether the 

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

any “severe” impairments;

1 and (3) whether the child’s impairment or 

combination of impairments meets, medically equals, or functionally equals

an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1

(“Listings”). See 20 C.F.R. § 416.924(a); Barnett ex rel. D.B. v. Comm’r of 

Soc. Sec., 573 Fed. Appx. 461, 462 (6th Cir. 2014). 

In analyzing functional equivalence, the ALJ examines the effects of a 

claimant’s impairments on six behavioral domains: (1) acquiring and using 

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

physical or mental ability to do basic work activities.” 20 C.F.R. § 920(c).

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information, (2) attending and completing tasks, (3) interacting and relating 

with others, (4) moving about and manipulating objects, (5) caring for 

yourself, and (6) health and physical well-being. Barnett, 573 Fed. Appx. at 

464; 20 C.F.R. § 416.926a(b)(1). A claimant’s impairments “functionally 

equal the listings” if they result in “‘marked’ limitations in two domains” or 

“an ‘extreme’ limitation in one domain.” § 416.926a(a). 

Applying this framework, the ALJ concluded that T.S.L. was not 

disabled. At the first step, he found that T.S.L. had not engaged in 

substantial gainful activity since the application date. [R. 13-2, Tr. 18]. 

Next, the ALJ determined that T.S.L. had the severe impairments of ADHD

and learning disability. [Id.]. At the third step, he concluded that T.S.L.’s 

impairments did not meet, medically equal or functionally equal the severity 

of the listed impairments. [Id., Tr. 18-19]. In assessing the six functional 

equivalence domains, the ALJ found that T.S.L. had “less than marked”

limitations in four domains (acquiring and using information, attending and 

completing tasks, interacting and relating with others, and caring for 

yourself) and “no limitation” in the other two domains (moving about and 

manipulating objects and health and physical well-being). [Id., Tr. 22-27].

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II. ANALYSIS

A.

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).

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 

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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.

Daniels did not raise any specific arguments to challenge the ALJ’s 

determination that T.S.L. was not disabled during the relevant time period. 

Instead, she includes additional facts regarding T.S.L.’s impairments and 

alleged behavioral problems, and submits new medical records and other 

evidence in support of her claims. [R. 1, PgID 2; R. 15, PgID 224, 226-33]. 

Because Daniels is proceeding pro se, the Court has construed her filings 

liberally and in her favor. Ford v. Comm’r of Soc. Sec., 143 F. Supp. 3d 

714, 717 (S.D. Ohio 2015). Despite this liberal review, the Court should 

grant the Commissioner’s motion because the ALJ’s decision is supported 

by substantial evidence and the new evidence Daniels submits does not 

require remand pursuant to sentence six of 42 U.S.C. § 405(g).

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B.

As discussed above, the ALJ found that T.S.L. had less than marked 

limitations in acquiring and using information, attending and completing 

tasks, and interacting and relating with others.2

 [R. 13-2, Tr. 22-25]. The

Court agrees with the Commissioner that Daniels appears to be contending 

that T.S.L. is at least markedly limited in those domains, such that his 

impairments functionally equal a listed impairment. [R. 16, PgID 246]. 

In support of her claims, Daniels asserts that T.S.L. has ADHD, is on 

medication, and is behind in school; he steals, plays with fire, and has been 

belligerent; his grades are poor; and he gets in trouble at school for talking, 

socializing, getting out of his seat without permission, and being disruptive. 

[R. 1, PgID 2; R. 15, PgID 224]. She also submitted four additional pieces 

of evidence that were not before the ALJ. [R. 15, PgID 226-33]. However, 

because this additional evidence was not before the ALJ, the Court cannot 

consider it in determining whether substantial evidence supports the ALJ’s 

decision. Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir.1996) 

(“[W]here the Appeals Council considers new evidence but declines to 

 2 Daniels does not present any evidence regarding the other three 

functional equivalence domains, so they are not discussed below. 

Nevertheless, after an independent review of the record, the Court finds 

that substantial evidence supports the ALJ’s finding that T.S.L. has less 

than a marked limitation in caring for yourself and no limitation in moving 

about and manipulating objects and health and physical well-being.

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review a claimant’s application for disability insurance benefits on the 

merits, the district court cannot consider that new evidence in deciding 

whether to uphold, modify, or reverse the ALJ’s decision.”).

An impairment causes a marked limitation if it “interferes seriously 

with [one’s] ability to independently initiate, sustain, or complete activities.” 

§ 416.926a(e)(2)(i). A marked limitation “means a limitation that is ‘more 

than moderate’ but ‘less than extreme[]’ ... [and] is the equivalent of the 

functioning we would expect to find on standardized testing with scores that 

are at least two, but less than three, standard deviations below the mean.” 

Id. 

The Commissioner argues that Daniels’ claims are unavailing, and 

substantial evidence supports the ALJ’s evaluation of T.S.L.’s functioning 

and conclusion that he was not disabled. The Court agrees.

 i. Acquiring and Using Information

Some examples of “limited functioning” – but “not necessarily ... 

‘marked’ or ‘extreme’ limitation[s]” – in acquiring and using information 

include: inability to understand words about space, size, or time (e.g., 

in/under, big/little, morning/night); inability to rhyme words or the sounds in 

words; difficulty recalling important things learned in school yesterday; 

difficulty solving mathematics questions or computing arithmetic answers; 

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and talking only in short, simple sentences and have difficulty explaining 

what you mean. 20 C.F.R. § 416.926a(g)(3). 

In finding that T.S.L. was less than markedly limited in acquiring and 

using information, the ALJ gave significant weight to the opinion of William 

Schirado, Ph.D., a state agency physician, finding that T.S.L. had a less 

than marked limitation in this domain. [R. 13-2, Tr. 23, citing R. 13-3, Tr. 

52]. He also relied on Daniels’ testimony that T.S.L. was not in special 

education classes and his grades were average. [R. 13-2, Tr. 23, citing id., 

Tr. 38-39]. The ALJ further cited a June 2012 mental examination report in 

which consulting physician Nick Boneoff, Ph.D., assessed a full scale IQ of 

70, and indicated that T.S.L. has a “number of cognitive strengths which 

should ultimately enable him to engage in work type activities of a 

moderate degree of complexity,” as well as the progress note of Kai 

Anderson, M.D., T.S.L.’s treating provider, stating that he was “doing okay” 

in school. [Id., citing R. 13-7, Tr. 159, 168]. 

The ALJ considered a May 2012 progress note in which Dr. 

Anderson issued T.S.L. a Global Assessment of Functioning3 (“GAF”) 

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

occupational function on a hypothetical continuum of mental health. The 

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

score of 50 or below.” Norris v. Comm’r of Soc. Sec., 461 Fed. Appx. 433, 

436 n. 1 (6th Cir. 2012) (citations omitted).

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score of 70, which suggests only a mild impairment. [R. 13-7, Tr. 172]. A

GAF score of 61-70 indicates “[s]ome mild symptoms (e.g., depressed 

mood and mild insomnia) or some difficulty in social, occupational, or 

school functioning (e.g., occasional truancy, or theft within the household), 

but generally functioning pretty well, has some meaningful interpersonal 

relationships.” See Am. Psychiatric Ass’n, Diagnostic and Statistical 

Manual of Mental Disorders, p. 32 (4th ed.1994) (emphasis omitted). The 

ALJ attributed Dr. Anderson’s GAF assessment great weight, finding that it 

was consistent with the other evidence in the record. [R. 13-2, Tr. 20]. 

The foregoing evidence substantially supports the ALJ’s conclusion 

that T.S.L. had a less than marked limitation in acquiring and using 

information. Although there is other evidence in the record that could 

potentially support a contrary conclusion, the Court should affirm because 

substantial evidence supports the ALJ’s finding. Cutlip v. Sec’y of Health & 

Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (“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.”) (internal 

citations omitted). 

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ii. Attending and Completing Tasks

Deficiencies in attending and completing tasks can be shown where a 

child: is “easily startled, distracted, or overreactive to sounds, sights, 

movements, or touch”; is slow to focus on or fails to complete activities of 

interest (e.g., games or art projects); repeatedly becomes sidetracked from 

activities or frequently interrupts others; is easily frustrated and gives up on 

tasks, including ones he or she is capable of completing; and requires extra 

supervision to stay engaged in an activity. 20 C.F.R. § 416.926a(h)(3). 

In finding that T.S.L.’s limitation in attending and completing tasks 

was less than marked, the ALJ assigned great weight to Dr. Schirado’s 

opinion to that effect, and to a teacher’s questionnaire indicating that T.S.L. 

had a serious problem with carrying out multi-step instructions, but no more 

than obvious problems in any other area of this domain, and no problem 

with paying attention when spoken to directly, sustaining attention during 

play/sports activities, and waiting to take turns. [R. 13-2, Tr. 24, citing R. 

13-3, Tr. 52; R. 13-6, Tr. 120]. The ALJ acknowledged that Daniels 

reported that T.S.L. had to be reminded to do things, [R. 13-6, Tr. 147; R. 

13-7, Tr. 169], but found that that behavior was not unusual among young 

children, and cited to progress notes from Dr. Anderson stating that T.S.L. 

was attentive during sessions, his participation level was active, and he 

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played with Lego’s and put puzzles together. [R. 13-2, Tr. 24, citing R. 13-

7, Tr. 167-69, 172]. He also cited Dr. Boneff’s report, which indicated that 

T.S.L.’s activity was normal during the consultative examination and he put 

forth good effort during the testing. [Id., Tr. 13-7, Tr. 158]. Substantial 

evidence supports the ALJ’s determination that T.S.L. had a less than 

marked limitation in this domain.

iii. Interacting and Relating With Others

Some examples of limitations in interacting and relating with others 

include: having no close friends, or having friends that are all older or 

younger than you; avoiding or withdrawing from people you know, or 

becoming overly anxious or fearful of meeting new people or trying new 

experiences; having difficulty playing games or sports with rules; having 

difficulty communicating with others (e.g., in using verbal and nonverbal 

skills to express yourself, carrying on a conversation, or in asking others for 

assistance); and having difficulty speaking intelligibly or with adequate 

fluency. 20 C.F.R. § 416.926a(i)(3). 

Dr. Schirado found that T.S.L. had no limitation in interacting and 

relating with others. [R. 13-3, Tr. 53]. The ALJ gave little weight to that 

opinion – noting that Daniels testified that there were instances where 

T.S.L. caused problems with other students and he stole from a teacher’s 

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purse – and instead found that T.S.L. had less than marked limitations in 

this domain. [R. 13-2, Tr. 25, citing id., Tr. 39]. The ALJ further cited Dr. 

Boneff’s report, which reflected that T.S.L. enjoyed playing with his sister 

and friends at school, and indicated that he had not been suspended since 

he started taking his medication; a June 2012 consultative pediatric 

examination report completed by Dr. Marlene Mansour, M.D., noting that 

T.S.L. was a “cooperative young boy” who followed simple commands; Dr. 

Anderson’s March 2013 progress note stating that he had not had any 

behavioral issues; and the teacher questionnaire indicating that while 

T.S.L. had an obvious problem in respecting and obeying adults in 

authority, he had no more than slight problems in the other categories of 

this domain. [Id., Tr. 25, citing R. 13-6, Tr. 121; R. 13-7, 157, 163, 168]. 

This constitutes substantial evidence that supports the ALJ’s finding that 

T.S.L. is less than markedly impaired in interacting and relating with others.

Substantial evidence supports the ALJ’s finding regarding T.S.L.’s 

functional limitations, and thus the decision should be affirmed. Cutlip, 25 

F.3d at 286.

C.

Daniels submitted four new pieces of evidence with her summary 

judgment motion: two teacher’s notes from May 2014 stating that T.S.L.’s 

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behavior “strongly hindered the ability of the teacher to communicate 

effectively to the entire class,” he had difficulty following classroom rules 

and direct instructions, he lacked impulse control, he completed very little 

work, and his work was below grade level, [R. 15, PgID 231-32]; a June 

2014 emergency treatment note diagnosing T.S.L. with suicide ideation 

after he allegedly reported that he wanted to kill himself, [id., PgID 228-30]; 

and a December 2013 psychiatric evaluation completed by consulting 

physician Kyle Smith, D.O., diagnosing T.S.L. with ADHD, oppositional 

defiant disorder and explosive disorder, and issuing him a GAF score of 50 

with a guarded prognosis, [id., PgID 226-27, 233]. 

Although the Court could not consider new evidence in deciding 

whether substantial evidence supports the ALJ’s decision, it can remand a 

case for the ALJ to consider newly submitted evidence where that evidence 

is “(1) new, (2) material, and (3) good cause exists for the claimant’s failure 

to include it in a prior proceeding.” Delgado v. Comm’r of Soc. Sec., 30 

Fed. Appx. 542, 549 (6th Cir. 2002); 42 U.S.C. § 405(g). This is known as 

a “sentence six remand.” Id. 

For the purposes of a sentence six remand, “evidence is new only if it 

was ‘not in existence or available to the claimant at the time of the 

administrative proceeding.’” Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

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2002) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)). 

“[E]vidence is material only if there is a reasonable probability that the 

[Commissioner] would have reached a different disposition of the disability 

claim if presented with the new evidence.” Id. (citation and internal 

quotation marks omitted). 

The teacher notes and the emergency treatment note constitute new 

evidence, but they are not material because they post-date the ALJ’s 

decision and concern a period after the relevant period decided by the ALJ. 

Wilson v. Comm’r of Soc. Sec., No. 10-13828, 2011 WL 2607098, at *6 

(E.D. Mich. July 1, 2011) (to be material, the evidence must “be probative 

of the claimant’s condition for the time period for which benefits were 

denied”). To the extent the notes are relevant to the period at issue, they 

are immaterial because they contain duplicative evidence regarding 

T.S.L.’s behavior at school and would not likely change the ALJ’s decision. 

See id. Furthermore, with regards to the emergency treatment note, since 

there is no other evidence of suicide ideation in the record, the treatment 

note would constitute “a subsequent deterioration or change in condition” 

and be immaterial. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 478 

(6th Cir. 2003) (“evidence of a subsequent deterioration or change in 

condition after the administrative hearing is deemed immaterial”). 

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The final piece of evidence Daniels submitted, the December 2013 

psychiatric evaluation, would fail under all three of the sentence six 

requirements. First, the evaluation is dated before the ALJ’s decision, and 

there is no indication that it was unavailable to her during the course of the 

administrative proceedings. Thus, it is reasonable to conclude that the 

evaluation is not “new evidence” for sentence six purposes. See Foster, 

279 F.3d at 357. Moreover, Daniels fails to establish the good cause 

element, which requires “demonstrating a reasonable justification for the 

failure to acquire and present the evidence for inclusion in the hearing 

before the ALJ.” Id. Despite the fact that she was proceeding pro se,

4

Daniels has not identified any reason she failed to submit the evaluation to 

the ALJ, and the ALJ asked her during the hearing whether there was any 

other evidence that existed, and she said there was not. Even assuming 

Daniels established the first two elements, a sentence six remand is 

unnecessary because the psychiatric evaluation is immaterial. 

Although the evaluation contained two new diagnoses, the diagnosis

of an impairment by itself does not speak to the severity or functional 

impact of the condition. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) 

 4 “While a claimant's pro se status at the administrative hearing is relevant 

to the good cause inquiry, it is not of itself dispositive.” Anthony v. Comm’r 

of Soc. Sec., No. 1:12CV02706, 2013 WL 6840359, at *7 (N.D. Ohio Dec. 

27, 2013).

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(“The mere diagnosis of [a condition], of course, says nothing about the 

severity of the condition.”). Daniels must demonstrate that those new 

impairments significantly changed T.S.L’s limitations. See Merrill v. 

Comm’r of Soc. Sec., No. 2:14–CV–262, 2015 WL 571008, at *11 (S.D. 

Ohio Feb. 11, 2015), report and recommendation adopted sub nom. Merrill 

v. Colvin, No. 2:14–CV–262, 2015 WL 1637435 (S.D. Ohio Apr. 13, 2015). 

Here, Dr. Smith, a consultative examiner, did not indicate what limitation or 

functional impact, if any, the oppositional defiant disorder and explosive 

disorder had on T.S.L., and the evaluation contains no evidence to indicate 

that those impairments caused any limitation beyond what the ALJ found. 

Because there is not a “reasonable probability that the [ALJ] would 

have reached a different disposition” had he reviewed the psychiatric 

evaluation, the evidence is immaterial and a sentence six remand is 

unwarranted. Foster, 279 F.3d at 357.

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III. CONCLUSION

For the reasons stated above, the Court RECOMMENDS that 

Daniels’ Motion for Summary Judgment [R. 15] be DENIED, the 

Commissioner’s Motion [R. 16] be GRANTED and the decision 

AFFIRMED. 

s/Elizabeth A. Stafford 

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: August 1, 2016

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 

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 

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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.

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 August 1, 2016.

s/Marlena Williams 

MARLENA WILLIAMS

Case Manager

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