UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERRAL BERNICE WADE,

on behalf of LTH,

Plaintiff, Civil Action No. 15-CV-12750

vs. HON. BERNARD A. FRIEDMAN

CAROLYN W. COLVIN,

ACTING COMMISSIONER

OF SOCIAL SECURITY,

Defendant.

________________________/

OPINION AND ORDER

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter is presently before the Court on cross motions for summary judgment

[docket entries 15, 20]. Pursuant to E.D. Mich. 7.1(f)(2), the Court shall decide these motions

without a hearing. For the reasons stated below, the Court shall deny plaintiff’s motion and grant

defendant’s motion.

Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant’s

final decision denying the application she filed on behalf of her son, “LTH,” for Supplemental

Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held a hearing in January

2014 (Tr. 930-73) and issued a decision denying benefits in April 2014 (Tr. 15-35). This became

defendant’s final decision in June 2015 when the Appeals Council denied plaintiff’s request for

review (Tr. 1-3).

Under § 405(g), the issue before the Court is whether the ALJ’s decision is supported

by substantial evidence, which is defined as “such relevant evidence as a reasonable mind might

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accept as adequate to support a conclusion.” Consol. Edison Co. v. Nat’l Labor Relations Bd., 305

U.S. 197, 229 (1938). In making this determination the Court does not review the record de novo,

and it may not weigh the evidence or make credibility findings. If supported by substantial

evidence, defendant’s decision must be upheld even if substantial evidence would have supported

a contrary decision and even if the Court may have decided the case differently in the first instance. 

See Engebrecht v. Comm’r of Soc. Sec., 572 F. App’x 392, 396 (6th Cir. 2014).

At the time of the January 2014 hearing, LTH was 14 years and nine months old and

he was in the ninth grade (Tr. 936). Plaintiff claims LTH has been disabled since January 20041,

due to Attention Deficit Hyperactivity Disorder (“ADHD”), a learning disability, anger management

problems, and asthma (Tr. 18, 77). The ALJ found that LTH’s severe impairments are ADHD, a

learning disability, speech and language delays, and an affective disorder (Tr. 21), but that he is not

disabled because his impairments are not severe enough to meet or medically or functionally equal

the requirements of the applicable listed impairment, i.e., Listing 112.11.2

1

 As the ALJ noted, SSI benefits are “not payable prior to the month following the month

in which the application was filed” (Tr. 18). Therefore, despite the alleged disability onset date,

the most relevant period for present purposes is March 2012 (when the application was filed)

through April 2014 (when the ALJ issued her decision). During this time frame, LTH was in the

seventh, eighth, and ninth grades in school.

2

 Under 20 C.F.R. § 416.924(d), a child seeking SSI benefits must meet the criteria of a

listed impairment. In the present case, the applicable Listing is 112.11:

112.11 Attention Deficit Hyperactivity Disorder: Manifested by

developmentally inappropriate degrees of inattention, impulsiveness,

and hyperactivity.

The required level of severity for these disorders is met when the

requirements in both A and B are satisfied.

A. Medically documented findings of all three of the following:

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Having reviewed the administrative record and the parties’ briefs, the Court

1. Marked inattention; and

2. Marked impulsiveness; and

3. Marked hyperactivity;

and

B. For . . . children (age 3 to attainment of age 18), resulting in at

least two of the appropriate age-group criteria in paragraph B2 of

112.02.

Listing 112.02(B)(2), in turn, states:

2. For children (age 3 to attainment of age 18), resulting in at least

two of the following:

a. Marked impairment in age-appropriate cognitive/ communicative

function, documented by medical findings (including consideration

of historical and other information from parents or other individuals

who have knowledge of the child, when such information is needed

and available) and including, if necessary, the results of appropriate

standardized psychological tests, or for children under age 6, by

appropriate tests of language and communication; or

b. Marked impairment in age-appropriate social functioning,

documented by history and medical findings (including consideration

of information from parents or other individuals who have knowledge

of the child, when such information is needed and available) and

including, if necessary, the results of appropriate standardized tests;

or

c. Marked impairment in age-appropriate personal functioning,

documented by history and medical findings (including consideration

of information from parents or other individuals who have knowledge

of the child, when such information is needed and available) and

including, if necessary, appropriate standardized tests; or

d. Marked difficulties in maintaining concentration, persistence, or

pace.

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concludes that the ALJ’s decision in this matter is supported by substantial evidence. While LTH

clearly has the severe impairments of ADHD, a learning disability, speech and language delays, and

an affective disorder, the ALJ reasonably concluded that these impairments are not sufficiently

severe to satisfy the applicable Listing.

The ALJ found that LTH’s impairments do not meet or medically equal the criteria

of Listing 112.11. Plaintiff does not appear to challenge this conclusion. The ALJ therefore

proceeded to determine whether LTH’s impairments functionally equal this Listing. Under 20

C.F.R. § 416.926a(b)(1), this required the ALJ to consider LTH’s functioning in the following six

“domains”: (i) acquiring and using information, (ii) attending and completing tasks, (iii) interacting

and relating with others, (iv) moving about and manipulating objects, (v) caring for yourself, and

(vi) health and physical well-being. Functional equivalence of a listed impairment is present only

if the claimant has “marked” limitations in at least two of these domains or “extreme” limitations

in one domain. See 20 C.F.R. § 416.926a(a). The regulations define the term “marked limitation”

as follows:

(2) Marked limitation.

(i) We will find that you have a “marked” limitation in a domain

when your impairment(s) interferes seriously with your ability to

independently initiate, sustain, or complete activities. Your

day-to-day functioning may be seriously limited when your

impairment(s) limits only one activity or when the interactive and

cumulative effects of your impairment(s) limit several activities.

“Marked” limitation also means a limitation that is “more than

moderate” but “less than extreme.” It 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. . . .

(iii) If you are a child of any age (birth to the attainment of age 18),

we will find that you have a “marked” limitation when you have a

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valid score that is two standard deviations or more below the mean,

but less than three standard deviations, on a comprehensive

standardized test designed to measure ability or functioning in that

domain, and your day-to-day functioning in domain-related activities

is consistent with that score. (See paragraph (e)(4) of this section.)

20 C.F.R. § 416.926a(e)(2). 

In the present case, the ALJ found that LTH has no limitation in the fourth domain

and “less than marked limitation” in the other five domains (Tr. 28-35). Plaintiff argues that the ALJ

erred in his findings as to the first and second domains only. See Pl.’s Summ. J. Br. at 15-22. 

Therefore, the narrow issue before the Court is whether substantial evidence supports the ALJ’s

findings that LTH does not have marked limitations in the two areas of acquiring and using

information, and attending and completing tasks. Regarding the first of these, the regulations state

in relevant part:

(g) Acquiring and using information. In this domain, we consider

how well you acquire or learn information, and how well you use the

information you have learned.

(1) General. . . .

(ii) Thinking is the application or use of information you have

learned. It involves being able to perceive relationships, reason, and

make logical choices. People think in different ways. When you think

in pictures, you may solve a problem by watching and imitating what

another person does. When you think in words, you may solve a

problem by using language to talk your way through it. You must

also be able to use language to think about the world and to

understand others and express yourself; e.g., to follow directions, ask

for information, or explain something.

(2) Age group descriptors— . . .

(iv) School-age children (age 6 to attainment of age 12). When you

are old enough to go to elementary and middle school, you should be

able to learn to read, write, and do math, and discuss history and

science. You will need to use these skills in academic situations to

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demonstrate what you have learned; e.g., by reading about various

subjects and producing oral and written projects, solving

mathematical problems, taking achievement tests, doing group work,

and entering into class discussions. You will also need to use these

skills in daily living situations at home and in the community (e.g.,

reading street signs, telling time, and making change). You should be

able to use increasingly complex language (vocabulary and grammar)

to share information and ideas with individuals or groups, by asking

questions and expressing your own ideas, and by understanding and

responding to the opinions of others.

(v) Adolescents (age 12 to attainment of age 18). In middle and high

school, you should continue to demonstrate what you have learned in

academic assignments (e.g., composition, classroom discussion, and

laboratory experiments). You should also be able to use what you

have learned in daily living situations without assistance (e.g., going

to the store, using the library, and using public transportation). You

should be able to comprehend and express both simple and complex

ideas, using increasingly complex language (vocabulary and

grammar) in learning and daily living situations (e.g., to obtain and

convey information and ideas). You should also learn to apply these

skills in practical ways that will help you enter the workplace after

you finish school (e.g., carrying out instructions, preparing a job

application, or being interviewed by a potential employer).

(3) Examples of limited functioning in acquiring and using

information. The following examples describe some limitations we

may consider in this domain. Your limitations may be different from

the ones listed here. Also, the examples do not necessarily describe

a “marked” or “extreme” limitation. Whether an example applies in

your case may depend on your age and developmental stage; e.g., an

example below may describe a limitation in an older child, but not a

limitation in a younger one. As in any case, your limitations must

result from your medically determinable impairment(s). However, we

will consider all of the relevant information in your case record when

we decide whether your medically determinable impairment(s) results

in a “marked” or “extreme” limitation in this domain.

(i) You do not demonstrate understanding of words about space, size,

or time; e.g., in/under, big/little, morning/night.

(ii) You cannot rhyme words or the sounds in words.

(iii) You have difficulty recalling important things you learned in

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school yesterday.

(iv) You have difficulty solving mathematics questions or computing

arithmetic answers.

(v) You talk only in short, simple sentences and have difficulty

explaining what you mean.

20 C.F.R. § 416.926a. 

Regarding the second domain at issue in this case, the regulations state in relevant

part:

(h) Attending and completing tasks. In this domain, we consider how

well you are able to focus and maintain your attention, and how well

you begin, carry through, and finish your activities, including the

pace at which you perform activities and the ease with which you

change them.

(1) General.

(i) Attention involves regulating your levels of alertness and initiating

and maintaining concentration. It involves the ability to filter out

distractions and to remain focused on an activity or task at a

consistent level of performance. This means focusing long enough to

initiate and complete an activity or task, and changing focus once it

is completed. It also means that if you lose or change your focus in

the middle of a task, you are able to return to the task without other

people having to remind you frequently to finish it.

(ii) Adequate attention is needed to maintain physical and mental

effort and concentration on an activity or task. Adequate attention

permits you to think and reflect before starting or deciding to stop an

activity. In other words, you are able to look ahead and predict the

possible outcomes of your actions before you act. Focusing your

attention allows you to attempt tasks at an appropriate pace. It also

helps you determine the time needed to finish a task within an

appropriate timeframe.

(2) Age group descriptors— . . .

(iv) School-age children (age 6 to attainment of age 12). When you

are of school age, you should be able to focus your attention in a

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variety of situations in order to follow directions, remember and

organize your school materials, and complete classroom and

homework assignments. You should be able to concentrate on details

and not make careless mistakes in your work (beyond what would be

expected in other children your age who do not have impairments).

You should be able to change your activities or routines without

distracting yourself or others, and stay on task and in place when

appropriate. You should be able to sustain your attention well enough

to participate in group sports, read by yourself, and complete family

chores. You should also be able to complete a transition task (e.g., be

ready for the school bus, change clothes after gym, change

classrooms) without extra reminders and accommodation.

(v) Adolescents (age 12 to attainment of age 18). In your later years

of school, you should be able to pay attention to increasingly longer

presentations and discussions, maintain your concentration while

reading textbooks, and independently plan and complete long-range

academic projects. You should also be able to organize your

materials and to plan your time in order to complete school tasks and

assignments. In anticipation of entering the workplace, you should be

able to maintain your attention on a task for extended periods of time,

and not be unduly distracted by your peers or unduly distracting to

them in a school or work setting.

(3) Examples of limited functioning in attending and completing

tasks. The following examples describe some limitations we may

consider in this domain. Your limitations may be different from the

ones listed here. Also, the examples do not necessarily describe a

“marked” or “extreme” limitation. Whether an example applies in

your case may depend on your age and developmental stage; e.g., an

example below may describe a limitation in an older child, but not a

limitation in a younger one. As in any case, your limitations must

result from your medically determinable impairment(s). However, we

will consider all of the relevant information in your case record when

we decide whether your medically determinable impairment(s) results

in a “marked” or “extreme” limitation in this domain.

(i) You are easily startled, distracted, or overreactive to sounds,

sights, movements, or touch.

(ii) You are slow to focus on, or fail to complete activities of interest

to you, e.g., games or art projects.

(iii) You repeatedly become sidetracked from your activities or you

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frequently interrupt others.

(iv) You are easily frustrated and give up on tasks, including ones

you are capable of completing.

(v) You require extra supervision to keep you engaged in an activity.

20 C.F.R. § 416.926a.

After summarizing the evidence, the ALJ gave the following explanation for finding

that plaintiff’s limitations in these two domains are “less than marked”:

The claimant has less than marked limitation in acquiring and using

information. The claimant testified that he enjoyed spending his days

at the park and liked spending his free time with his friends. He

stated that he would spend several hours a day on Call of Duty, a

video game and had no difficulty learning the concepts of the game

[and] then utilizing them. The claimant’s mother testified that her

son had done well while in a learning disabled class, earning all As

and Bs and attaining the honor roll while there. He was briefly taken

out of those classes and placed in regular classes where his

performance was at or near failing but according to the medical

records he has been placed back in the learning disabled classes. (Ex.

12F/30). The Detroit Public Schools reported that the claimant had

been making poor progress towards his academic goals but they

attributed this to “poor attendance” and believed that his attendance

deeply affected his overall performance in the classroom. (Ex. 2F/3). 

A year later in March 2012, the claimant’s MEAP scores (the State

of Michigan’s educational aptitude test) showed the claimant to [be]

performing at the 6th grade reading level, which was exactly where

the claimant was supposed to be. (Ex. 3F/2). Still, the claimant’s

poor attendance was blamed for continued poor performance in

school. (Ex. 4F/2). Testing performed by the Northeast Guidance

Center in April 2013 showed the claimant to be at or near all of his

subject matter aptitudes. (Ex. 10F/3).

* * *

The claimant has less than marked limitation in attending and

completing tasks. The claimant did not describe himself as

“hyperactive” but stated that he believed that he was “lazy”. The

claimant’s mother disagreed with her son’s statements and believed

her son’s problems stemmed from not understanding the assigned

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work and not from him being “lazy”. He noted that he had few

problems paying attention to those things that he really enjoyed

doing, such as playing “Call of Duty” and working in gymnastics. A

March 2012 assessment performed by the Detroit Public Schools

would tend to agree with the claimant’s statements though they used

the term “apathetic” instead of “lazy” to describe the claimant’s

attitude towards school. (Ex. 3F/2). He has presented to his therapist

with hyperactive behavior in the past. (Ex. 5F/1). However, in

subsequent interviews at the Northeast Guidance Center the claimant

presented as friendly or cooperative. (Ex. 12F/7; Ex. 12F/3). There

is no report from teachers that the claimant has a marked inability to

attend to or complete assigned tasks. (Ex. 3E/4; Ex. 17E/3).

(Tr. 28, 29-30.)

Substantial evidence supports the ALJ’s finding that LTH’s ability to acquire and use

information is not markedly limited. As the above-quoted regulation makes clear, the inquiry in this 

domain is whether the claimant can do such things as think, use language in daily living situations,

follow directions, ask for information, give explanations, read, write, do math, discuss history and

science, read street signs, tell time, make change, go to the store, use a library, use public

transportation, and follow instructions. Examples of limitations in this domain include such things

as having difficulty understanding words describing space, size, or time; being unable to recall

important things learned recently in school or to solve math problems; and being able to speak only

in a primitive way. While LTH clearly has difficulty with some subjects in school and exhibits some

behavioral problems at home, the record nonetheless supports the ALJ’s finding that he is not

markedly impaired in this domain. As noted by the ALJ, when LTH has been provided with

additional support and attention at school in a special education or “LD” setting, he has earned

average and even above average grades,3

 as shown in his report cards for sixth through ninth grades

3

 This history is noted repeatedly in the progress notes from Northeast Guidance Center,

where LTH was seen regularly during the relevant time period. For example, in notes dated

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(Tr. 247-48, 255), although he does perform below his grade level (Tr. 186 [sixth grade]), 276

[seventh grade], 177 [eighth grade], Tr. 216 [ninth grade]). In these years, which are the most

relevant for present purposes (see n.1, supra), LTH earned generally average grades in English,

reading, spelling, and math, the subjects particularly relevant to this domain. In sixth grade, when

LTH was placed in regular classes and not provided with the additional support of the LD class

setting, his performance suffered (Tr. 246, 269, 292). The ALJ also correctly noted the many

statements in LTH’s school records suggesting that his performance suffered because of poor

attendance (e.g., Tr. 156, 177, 179, 186-77, 269). The ALJ reasonably concluded that this, rather

than any marked impairments in LTH’s ability to acquire and use information, explains his

substandard academic performance. Additionally, LTH’s seventh and ninth grade teacher

evaluations, which commented specifically on ten aspects of this domain, noted “no problem” or “a

March 19, 2013, psychologist Jana Buchanan recounted:

Client was delayed in his speech and reading, and was placed into an

LD classroom in 3rd grade. Mom reported that with the LD

classroom and prescribed medication, client began to make much

improvement with his focus and academic performance. Client was

eventually placed back into a regular classroom setting for making

improvement, but his grades dropped significantly to D’s and F’s. In

result, client was placed back in an LD classroom and has been

earning B’s, C’s and D’s since. . . .

(Tr. 324.) Similarly, in March 2012 it was noted:

[LTH] is currently in the 7th grade at Marquette. [He] was previously

in an LD classroom and was achieving honor roll status. However,

at the end of 5th grade, [he] was moved to a regular classroom setting

and his grades then dropped to D’s and F’s. For all of 6th grade

Mom advocated for him to be placed back in an LD classroom and

that finally occurred at the start of this school year.

(Tr. 349.)

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slight problem” in half of them in the seventh grade and in seven of the ten in ninth grade (Tr. 151,

217).

Substantial evidence also supports the ALJ’s finding that LTH is not markedly

limited in attending and completing tasks. As the above-quoted regulation makes clear, the inquiry

in this domain is whether the claimant can do such things as follow directions, remember and

organize school materials, complete assignments, participate in group sports, read independently,

complete chores, get ready for school, and change classrooms. Examples of limitations in this

domain include such things as being easily startled or distracted, being slow to focus on or complete

activities of interest, repeatedly becoming sidetracked, being easily frustrated, and requiring extra

supervision to stay engaged in an activity. Again, while LTH has some difficulties in these areas,

the ALJ reasonably found that he is not markedly limited. The record contains many references to

the fact that LTH is performing better in school (and that his ADHD symptoms have lessened) with

medication (Tr. 160, 288, 319, 323-24, 343, 377, 402, 419, 484). His seventh and ninth grade

teacher evaluations, which commented specifically on 13 aspects of this domain, noted “an obvious

problem” in a few areas but mainly “no problem” or “a slight problem” in most areas (Tr. 152, 218). 

In March 2012, LTH’s therapist noted he “is good at games, proud of his reading achievements, and

enjoys football, martial arts” (Tr. 337). In June 2012 the therapist noted that LTH “made great

improvements in school over the past few months. [He] was focused in the classroom, completed

his work in class and at home” (Tr. 359). The ALJ also noted the testimony from LTH and plaintiff

to the effect that LTH has no difficulty focusing for hours at a time on the activities he enjoys.4

4

 Plaintiff faults the ALJ for “not address[ing] either the psychological evaluation of May

31, 2013 (Tr. 634-637) or the IEP completed on April 9, 2013 (Tr. 236-244) anywhere in her

decision.” Pl.’s Summ. J. Br. at 19. However, plaintiff does not point to any information or

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The ALJ’s decision in this matter is further supported by the opinion of Drs. Issa and

Leno, who reviewed LTH’s records for the Disability Determination Service through June 2012 and

concluded that his impairments do not meet or equal the Listings, including Listing 112.11 (Tr. 66-

72). Nor do the hundreds of pages of progress notes from the Northeast Guidance Center (Tr. 287-

561, 638-929), where LTH received medical, psychiatric, and counseling services during the

relevant time period, contain any findings or opinions to undermine the ALJ’s conclusions that his

impairments do not meet or equal Listing 112.11.5

Finally, the most recent psychological evaluation (Tr. 634-37), dated May 31, 2013,

supports the ALJ’s conclusion that LTH’s impairments are not of disabling severity. The summary

paragraph is this evaluation states:

During administration of formal tests he initially put forth moderate

effort. However as the session progressed he complained of boredom

and eventually began to deliberately respond incorrectly to test

questions. Based on test data, [he] is presently functioning at the

Borderline range with a WISC-IV Full Scale IQ score of 73. On the

conclusions contained in these exhibits (10F and 19E, respectively) that are not also contained

elsewhere in the record. The April 2013 IEP (Ex. 19E) indicates that LTH was an eighth grade

student performing in various areas at a sixth grade level; that he “has very good comprehension

skills” and “scored proficient on last years MEAP test in Reading”; but “needs a bit of

motivation to really thrive academically along with sped [sic: special ed] support” (Tr. 238). As

noted below, the May 2013 psychological evaluation (Ex. 10F) similarly found that LTH is

functioning below his grade level and would benefit from an LD classroom environment (Tr.

636-37). Therefore, plaintiff has failed to show the significance, if any, of the ALJ’s failure to

comment specifically on these exhibits.

5

 Plaintiff faults the ALJ for “fail[ing] to accord adequate weight to the opinion of the

minor’s treating physicians at Northeast Guidance Center.” Pl.’s Summ. J. Br. at 23. However,

she cites only generally to the hundreds of pages of progress notes and treatment records from

this guidance center without identifying any specific opinion of any treating physicians or other

treating sources. The only opinion evidence anywhere in the record as to whether LTH meets or

equals Listing 112.11 is from Drs. Issa and Leno who determined that the Listing is not met or

equaled (Tr. 66-72).

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WRAT-4 [he] is presently functioning almost 4 grade levels below

his reported 8th grade education in tasks that require spelling skills. 

He is as much as 3 grade levels below in word recognition and

mathematical computation and is as much as 2 grade levels behind in

tasks that require sentence comprehension. His behavioral style

likely interfered with overall higher performance.

(Tr. 636.) The psychologist recommended that LTH be reassessed for placement in an LD

classroom setting; that his medications be monitored for compliance; and that he receive

“[s]upportive counseling with social skills training” (Tr. 637).6

The Court concludes that the ALJ’s decision in this matter is supported by substantial

evidence. While LTH clearly has ADHD, a learning disability, and anger problems, the ALJ

reasonably found that these impairments are not equal or equivalent to a listed impairment. 

Specifically, substantial evidence supports the ALJ’s findings that LTH is not markedly limited in

his ability to acquire and use information or to attend and complete tasks. Accordingly,

IT IS ORDERED that plaintiff’s motion for summary judgment is denied.

6

 Plaintiff correctly notes that the ALJ erred in stating that “[t]esting performed by the

Northeast Guidance Center in April 2013 showed the claimant to be at or near all of his subject

matter aptitudes.” Pl.’s Summ. J. Br. at 17, quoting Tr. 28. The April 2013 testing showed

plaintiff to be functioning at between two and four “grade levels below his reported 8th grade

education” (Tr. 635-36). Despite the ALJ’s misstatement as to these test results, the fact remains

that this psychological evaluation does not undercut the ALJ’s conclusion that LTH’s ability to

acquire and use information is not markedly limited.

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IT IS FURTHER ORDERED that defendant’s motion for summary judgment is

granted.

S/ Bernard A. Friedman_____________

Dated: August 9, 2016 BERNARD A. FRIEDMAN

Detroit, Michigan SENIOR UNITED STATES DISTRICT JUDGE

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