IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Alice T. Mosely, 

 Plaintiff, 

 v. Case No. 2:12-cv-836

Michael J. Astrue, JUDGE GREGORY L. FROST

Commissioner of Social Security, Magistrate Judge Kemp

 

Defendant. 

OPINION AND ORDER

 This social security disability case is before the Court to consider a Report and

Recommendation filed on February 28, 2013. In that filing, the Magistrate Judge recommended

that the Court dismiss the case for failure to prosecute because plaintiff, who filed for disability

benefits on behalf of her grandchild, did not file a statement of errors. The Court did direct

plaintiff to do so, just as it directs every plaintiff in a social security case to file a statement

which tells the Court why the plaintiff thinks the Commissioner’s decision to deny benefits was

wrong.

The absence of a statement of errors makes it difficult (but not impossible) for the Court

to review a decision of the Commissioner of Social Security to determine whether that decision

is supported by substantial evidence. This Court has often dismissed such cases where no

statement of errors is filed, especially after the plaintiff has been warned that the Court will

probably dismiss the case for that reason. See, e.g., Duvall v. Comm’r of Social Security, 2012

WL 5935950 (S.D. Ohio Nov. 27, 2012); Johnston v. Commissioner of Social Sec., 2012 WL

5395629 (S.D. Ohio Nov. 5, 2012). Other courts have done that as well. See, e.g.,

Miles-Richardson v. Commissioner of Social Sec., 2010 WL 1790976 (E.D. Mich. May 3, 2010). 

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On the other hand, some judges have concluded that the only filing a plaintiff must make in a

social security case is the complaint; nothing else is needed to obtain judicial review. See, e.g.,

Wright v. Commissioner of Social Sec., 2010 WL 5420990 (E.D. Mich. Dec. 27, 2010), citing

Kenney v. Heckler, 577 F.Supp. 214 (N.D. Ohio 1983). It does not appear that the Court of

Appeals for the Sixth Circuit has decided this issue. See Salmo v. Commissioner of Social Sec.,

2012 WL 6929176, *3 (E.D. Mich. Nov. 27, 2012)(“[t]he Sixth Circuit has not weighed in on

whether Rule 41(b) is an appropriate basis to dismiss a Social Security appeal brought under §

405(g)”), adopted and affirmed 2013 WL 273205 (E.D. Mich. Jan. 24, 2013). 

In the past, especially when dealing with a pro se litigant (that is, someone who is not

represented by an attorney), the Court has done a general review of the Commissioner’s decision

to make sure there are no obvious errors even when the plaintiff has not filed anything in this

Court but the complaint. See Moody v. Astrue, 2011 WL 335863 (S.D. Ohio Jan. 31, 2011). The

Court will do the same here.

This Court does not decide the issues in a social security disability case just as if there

had never been an administrative decision. Rather, the Court has to look at the administrative

decision to see if there is some evidence in the record to support it, and to make sure that the

Administrative Law Judge (ALJ) applied the law correctly. If the administrative decision is

legally sound and if it is supported by the kind of evidence a reasonable person could rely on,

this Court has to affirm the Commissioner’s decision to deny benefits. See 42 U.S.C. §405(g);

Walters v. Commissioner of Social Security, 127 F.3d 525 (6th Cir.1997).

The application for benefits was filed by the plaintiff, Alice T. Mosley, on behalf of her

grandson, who was born on April 21, 2006, and who was therefore an “older infant” when the

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application was filed a month before his third birthday. He was a “preschooler” (age 4) when the

administrative hearing was held on October 13, 2010. The Court’s review of the record is

limited to the question of whether, based on evidence submitted on or before the date of the

ALJ’s decision (which the ALJ issued on November 24, 2010), the child was entitled to benefits

under those provisions of the Social Security Act and regulations which deal with older infants

and preschoolers.

The Court has looked over the way that the ALJ described the law, and he did so

correctly. The issue in such a case is not, of course, whether a child is disabled from working. 

Rather, an older infant or preschooler can get disability benefits only if that child has one or

more “severe impairments” (the ALJ found he did - they included asthma, an expressive

language disorder, an attention deficit hyperactivity disorder, and a disruptive behavior disorder)

and if those conditions either match a condition described in a “Listing of Impairments”

developed by the Social Security Administration or is as severe as one of those listed conditions

even if it does not exactly match what the Listing of Impairments describes. There are six

different areas an ALJ must look at in making his decision, which are called “domains.” They

have to do with how well the child acquires and uses information, is able to pay attention to and

finish tasks, how he relates to others, how he moves around and is able to handle objects,

whether he can care for himself the way other children his age can, and whether he has general

problems with his health or well-being. A child who is “extremely” limited in one of these areas

- meaning that he is very seriously limited - is entitled to receive benefits, as is a child who is

“markedly impaired” in two of these areas. Being “markedly impaired” means that the child’s

ability to do age-appropriate things is seriously interfered with by his problems or conditions. If

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a child cannot meet these rather strict requirements, he will not get benefits. The ALJ cited to

the correct sections of the law when he explained all of this in his decision; that explanation is

found at pages two through four of his decision, which appears in the Court’s record as pages 14

through 16.

An ALJ goes about deciding how impaired a child is by looking at the various school and

medical records and also, as he did in this case, taking testimony from the person who filed the

application - Ms. Mosely - and from a medical expert. The medical expert’s testimony is very

important in a case like this one because many of the questions the ALJ has to answer about

whether a child has severe impairments and how severe they are depend on medical judgment. 

Here, the ALJ reviewed quite a few records, and he describes them in great detail in his

decision. The Court will not repeat that description here; it does appear the ALJ accurately

summarized them. They included some medical records relating to the child’s asthma, which

does not appear to be his most serious problem, and a good many medical and other records

relating to how well he was learning and how serious his behavior problems were. The records

showed that he had been placed in an MR/DD preschool program when he was quite young due

to his hyperactivity and behavioral issues. During that placement, he was evaluated by a Dr.

Kramer, who rated the child’s GAF (a measure of how severely impaired the child is) at 55,

which is within the moderate range. Dr. Kramer’s report said the child was developing in an

age-appropriate way in many areas. An Individualized Education Plan (IEP) prepared for him in

June, 2010 showed that he was making adequate progress in almost all areas. He did have some

language difficulties but responded well to speech therapy. He scored in the average or low

average range on a number of tests designed to measure how well he was developing (although

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one test showed his pre-academic development was delayed). He was placed on Ritalin in

October, 2010 to help control his hyperactivity. His grandmother testified that he was difficult

to deal with at home and did not get along too well with other children, and that although he was

making some progress at school (which was a behavioral school), he brought home a fair number

of bad reports. She apparently believes the ALJ did not correctly assess how bad his behavior

problems were, because that is the issue she pointed out in her letter to the Appeals Council

requesting review of the ALJ’s decision.

There is no question that the child has some diagnosed behavioral problems. That is

what led him to be placed in special preschool in the first instance. That school’s records

showed that while he was not problem-free, by June of 2010 he was progressing adequately

toward his goals. In particular, the teachers’ notes showed that he was rarely being asked to

leave the group, and when that did happen, he settled down quickly and was able to rejoin the

other students. He was following directions, learning to trust the adults at the school, and getting

better at using his manners.

 Early in the administrative process, state agency professionals reviewed the records and

concluded that the child did not meet the requirements for getting benefits. Dr. Block testified

the same way. He thought the child had no extreme or marked impairments, and no impairments

at all in some areas. The ALJ relied heavily on his testimony.

Here, it seems that no one actually said that the child was so severely impaired that he

qualified for social security disability benefits. There was evidence that he was making progress

in problem areas and was doing fairly well in others. A medical expert testified that he did not

qualify for benefits. The ALJ chose to believe that testimony. The Court cannot say he was

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wrong or unreasonable when he did so. The ALJ correctly cited the law and reviewed the

evidence of problems in functioning in each of the six required areas. 

The Court understands that Ms. Mosely may not agree with the way the ALJ decided the

case, but that is not enough to cause the Court to change the decision. Based on everything the

Court has seen, which is limited to the record before the ALJ, the Court simply cannot say that

no reasonable person would have decided the case the way the ALJ decided it. A substantial

amount of evidence supported his decision. That is enough to preclude the Court from reversing

it.

For all these reasons, the Court ADOPTS the recommendation of the Magistrate Judge

that the case be dismissed, but not because Ms. Mosely did not file a statement of errors. Rather,

the case will be dismissed because there is no legal basis for the Court to overturn the

Commissioner’s decision. That being so, this case is DISMISSED and the Clerk is directed to

enter judgment in favor of the defendant.

IT IS SO ORDERED.

 /s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

 

 

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