1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CHANDRA POPE, 

Natural Parent on behalf of 

R.T.S.,1 a minor, 

 Plaintiff, 

 Civil Action 2:18-cv-246 

 v. JUDGE MICHAEL H. WATSON 

 Chief Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

REPORT AND RECOMMENDATION 

 Plaintiff, Chandra Pope (“Plaintiff”), on behalf of her minor child (“R.T.S.”), brings this 

action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social 

Security (“Commissioner”) finding his disability ceased on May 1, 2014 and he no longer 

qualified for Social Security Supplemental Security Income benefits (“SSI”). This matter is 

before the United States Magistrate Judge for a Report and Recommendation on Plaintiff’s 

Statement of Errors (ECF No. 8), (“SOE”), the Commissioner’s Memorandum in Opposition 

(ECF No. 13), Plaintiff’s Reply (ECF No. 14), and the administrative record (ECF No. 7). For 

the reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner of 

 

1 Pursuant to Federal Rule of Civil Procedure 5.2(a)(3), the name of an individual known to be a 

minor in a filing with the Court may only include the minor’s initials.
2 

Social Security’s nondisability finding and REMAND this case to the Commissioner and the 

ALJ under Sentence Four of § 405(g). 

I. BACKGROUND

Plaintiff filed an application for benefits on behalf of her minor child, R.T.S., alleging 

that R.T.S. has been disabled since June 3, 2009. (R. at 160-62.) R.T.S. was found disabled 

due to speech and language disorder that caused an extreme limitation in the domain of 

Acquiring and Using Information as of June 3, 2009. (R. at 10-14.) The Commissioner 

conducted a continuing disability review on May 5, 2014. (R. at 72-79.) Plaintiff requested 

reconsideration and the decision was affirmed on June 20, 2015, by a State Agency Disability 

Hearing Officer. (R. at 83-94, 95-105.) Thereafter, Plaintiff filed a written Request for 

Hearing on September 4, 2015. (R. at 113.) Administrative Law Judge Paul Yerian (“ALJ”) 

held a hearing on June 12, 2017, at which Plaintiff and R.T.S., who was represented by counsel, 

appeared and testified. (R. at 41-65.) On July 19, 2017, the ALJ issued a decision finding that 

R.T.S. was not disabled within the meaning of the Social Security Act. (R. at 10-26.) On 

January 26, 2018, the Appeals Council denied Plaintiff’s request for review and adopted the 

ALJ’s decision as the Commissioner’s final decision. (R. at 1–6.) Plaintiff then timely 

commenced the instant action. 

II. PLAINTIFF’S HEARING TESTIMONY 

R.T.S. was eleven years old at the time of the administrative hearing. (R. at 40-41.) 

R.T.S.’s mother testified at the hearing that R.T.S.’s medications include Clonidine and Strattera. 

(R. at 44.) She testified that the family went to church every other Sunday and R.T.S. interacted 

with other kids at church. (R. at 55.) Plaintiff indicated that the Sunday school teachers would 

come get her out of church services if R.T.S. was acting up. (R. at 56.) Plaintiff testified that 
3 

R.T.S. was passing his classes. (R. at 56.) He was in a small classroom setting with some 

additional help and resources. (Id.) Plaintiff testified that R.T.S. fought with his older sibling 

over videogames because his older brother would take over the game. (R. at 57.) He did not 

perform his chores, and needed constant reminding or a threat of punishment such as taking the 

game away, until he cleaned his bedroom. (Id.) He did not have his own friends but got along 

well with his sister and her friends. (R. at 58.) Plaintiff acknowledged that R.T.S. can ride a 

bicycle. (Id.) Plaintiff testified that R.T.S. was no longer receiving speech therapy at school. 

She testified that R.T.S. could use a tablet to watch videos. (R. at 59.) Plaintiff testified that he 

was combative at home. (R. at 60-61.) She testified that R.T.S. recently had been disciplined 

at school for behavior and that she had received three or four calls stating that he was cussing at 

the teachers. (R. at 63.) 

R.T.S. testified at the hearing that he had just finished the fourth grade.2

 (R. at 46.) He 

enjoyed playing video games. (R. at 46-47.) He played outside, and had some friends at 

school with whom he played football. He does not have friends in his neighborhood, but he 

plays with his sister’s friends. (R. at 50.) He enjoyed sports. (R. at 49, 51.) He testified to 

some problems at school with bullying. (R. at 48.) He reported fighting with other students. 

(R. at 50, 52.) He indicated that he got mad at school and threw a chair. (R. at 53.) He 

testified that he “used to have bad dreams” since he was five years old but that he was sleeping 

okay. (R. at 53.) 

 

 

2 The ALJ noted in his decision that R.T.S. “had obvious speech and language delays but was 

able to communicate and answered questions.” (R. at 16.) 
4 

III. MEDICAL RECORDS 

A. Nationwide Children’s Hospital 

R.T.S. underwent a speech/language evaluation in June 2009, when he was 3 years old, 

which demonstrated significantly delayed language skills and delayed social language 

(pragmatic) skills. (R. at 374-77.) R.T.S. was determined disabled in 2009, due to his 

significant delay in language skills, resulting in an extreme limitation in the domain of acquiring 

and using information. (R. at 378-83.) 

R.T.S. returned to Nationwide Children’s Hospital Behavioral Health Department due to 

developmental and speech delays in July 2012 when he was 6 years old. (R. at 499-512.) It 

was noted that R.T.S. sought shared enjoyment and attempted to have others involved in his 

play. R.T.S. presented with a significant speech delay and did not begin speaking single words 

until 4 years of age. At the time of this evaluation, R.T.S. spoke in three to four-word phrases. 

He did provide eye contact and used gestures when communicating with others. R.T.S. did not 

present with any repetitive behaviors or repetitive motor mannerisms. Based on direct 

observation and parent report, R.T.S. does not meet criteria for Autism Spectrum Disorder. (R. 

at 506.) R.T.S. was assessed with a learning disorder, nos; and mixed receptive-expressive 

language disorder; status: rule out. (Id.) It was recommended that R.T.S continue with the 

services that he is receiving through the board of developmental disability. His family was 

encouraged to have R.T.S. connected with private speech therapy by requesting a prescription 

through his pediatrician; and his family was encouraged to have R.T.S. connected with outpatient 

therapy to work through the trauma that he witnessed.3

 (R. at 507.) 

 

3 R.T.S. witnessed his father abuse and shoot his mother as a young child. (See, e.g., R. at 504, 

774.) 
5 

R.T.S. was referred back to Nationwide Children’s Hospital Behavioral Health 

Department on May 19, 2014, noting he had been previously evaluated for autism and was still 

experiencing extreme poor social interactions, he was shy, and had inappropriate response, 

speech delay and developmental delay. (R. at 498.) 

B. Access Ohio/Marilynn J. Peters, M.D. 

 R.T.S. underwent a diagnostic assessment on November 14, 2014, due to concerns 

autism, Post-traumatic stress disorder (“PTSD”)-related nightmares, and possibly Attentiondeficit hyperactivity disorder (“ADHD”). (R. at 773-88.) The intake social worker noted that 

R.T.S. had a good relationship with his family. (R. at 774.) He got along “okay” with 

everyone, and his peer relationships and social functioning were noted to be “good.” (R. at 775, 

777.) It was also reported that R.T.S. saw his mom and biological father fight a lot as a young 

child, and he witnessed his father shoot his mother. R.T.S. reported he experienced nightmares 

related to his father getting released from prison and the shooting incident being “stuck in my 

head,” which effected his sleep. His mother reported R.T.S. lost focus, was easily distracted, 

and had difficulty completing tasks. (R. at 784.) On mental status examination, R.T.S. was 

well groomed, with average demeanor and activity. He exhibited no delusion and was not 

aggressive; thought process was concreate, mood euthymic, with cooperative behavior. He was 

impaired in his attention/concentration and his intelligence was estimated to be borderline with 

fair to poor insight and judgment. (R. at 787.) The intake social worker assessed R.T.S. with 

Autism spectrum disorder, with accompanying intellectual impairment, per history, PTSD and 

ADHD, predominately inattentive presentation. (R. at 784.) R.T.S. was referred for 

community psychiatric supportive treatment (CPST), psychotherapy, medication and psychiatric 

services. (R. at 785.) 
6 

 R.T.S. underwent an initial psychiatric evaluation with another psychiatrist (not Dr. 

Peters) that same day who prescribed him Adderall. (R. at 748-51.) 

 On May 5, 2016, Marilynn J. Peters, M.D., completed a functional assessment in which 

she found that R.T.S. had marked limitations in the domains of acquiring and using information 

as well as attending and completing tasks and interacting appropriately with others. (R. at 581-

82.) Dr. Peters based her assessment on R.T.S.’s diagnosis of receptive-expressive language 

disorder, his learning disorder, and ADHD (Impulsive). Dr. Peters noted that R.T.S. was not 

diagnosed on the autism spectrum. (R. at 581.) Dr. Peters could not comment on the domains 

of moving about and manipulating objects; caring for self; and health and physical well-being. 

(R. at 582-83.) 

 On June 2, 2016, Dr. Peters saw R.T.S., who reported that the end of the school year was 

great and that he passed this school year with all good grades. Dr. Peters noted that R.T.S. was 

well-groomed, cooperative, with logical thought processes, and positive thought content. He 

was euthymic with full affect, had no abnormalities with perception and no gross defect with 

insight or judgment, and no side effects from medication. She continued R.T.S. on Adderall and 

Clonidine for sleeping issues. (R. at 578-79.) 

 In August 2016, Dr. Peters noted that R.T.S. was attending a new school after having 

had an enjoyable summer vacation in Florida. R.T.S. had been taking only the Clonidine, 

having run out of his Adderall. Dr. Peters noted that R.T.S. was very pleasant, more 

spontaneous, and that he reported he had not gotten hyper at school. (R. at 766-67.) 

 In December 2016, Dr. Peters noted that R.T.S. reported he was doing “fine, real 

good” in school, including all A’s. His teachers were attentive to his complaints of a 
7 

single bully. Dr. Peters noted that R.T.S. was calm and organized, and no abnormalities were 

noted, and R.T.S. denied negative side effects from medication. (R. at 758-59.) 

 In May 2017, R.T.S. reported he “said the F word on accident” in school, but he was 

better functioning in school, and no problems at home. (R. at 752.) While R.T.S. reported 

taking Strattera, his stepfather noted issues of non-compliance. On mental status examination, 

Dr. Peters found R.T.S. was well groomed, calm, cooperative, with logical thought processes, 

and he was “motivated.” He was euthymic with full affect, had no abnormalities with 

perception and no gross defect with insight or judgment, and no side effects from medication. 

(R. at 752-53.) 

C. Consultative examination: Jack J. Kramer, Ph.D.

On April 21, 2014, Dr. Kramer evaluated R.T.S. for disability purposes. (R. at 483-89.) 

At the time of this evaluation, R.T.S. was 8 years 3 months old. Dr. Kramer noted R.T.S. 

presented as healthy and well groomed, and was noted to be a “compliant and happy youngster 

throughout both the interview and testing portions of the examination.” Dr. Kramer noted “[h]e 

responded appropriately when asked questions . . . [and] sat calmly next to his mother.” (R. at 

483.) Plaintiff reported to Dr. Kramer that R.T.S. worked with a speech therapist and an 

occupational therapist at school and that academic skills had been harder for him to learn. 

Plaintiff reported that R.T.S. was “well behaved at school” with “no history of school 

suspensions.” He received instructions in both a regular first grade classroom and in a special 

education classroom for a portion of the day. R.T.S. was “pleasant, compliant, and cooperative” 

and Plaintiff said behavior problems at home were minimal. (R. at 484.) 

Dr. Kramer administered the WISC-IV (Wechsler Intelligence Scale for Children), which 

resulted in verbal comprehension index of 69; perceptual reasoning of 75; working memory of 
8 

77; and processing speed index of 80 with a Full-Scale IQ score of 70. (R. at 485.) Dr. Kramer 

concluded that R.T.S. cognitive skills appear to be within a borderline range. (R. at 486.) Dr. 

Kramer wrote that R.T.S. worked hard but was a “little slow to process information and that 

skills are harder for him.” (R. at 484.) Dr. Kramer reported that R.T.S. was responsive to 

questions and his concentration, pace, and persistence were adequate, or better, for all 

interactions. (R. at 484-85.) His speech was mostly intelligible, and his language was relevant 

and coherent, although a little developmentally immature. R.T.S. said he enjoyed playing with 

his toys and siblings, being outside, and playing video games. He liked going to school and had 

a few friends. R.T.S. was able to pick out his clothes and dress in the morning, do chores like 

taking out the trash and cleaning his room with reminders, and get his own snacks. (R. at 485.) 

As to R.T.S.’s functional assessment, Dr. Kramer concluded that in the area of acquiring 

and using information, R.T.S. “appeared alert, but slow to process answers and well behind 

expectations in his ability to problem-solve.” In Interacting and Relating with Others, his skills 

were noted to be “a little immature,” but no serious social problems were noted. His abilities 

and limitations in Self-Care were mostly normal, with only some reminders and occasional 

assistance needed. R.T.S.’s abilities and limitations in Attending to and Completing Tasks 

suggests some limitations in ability to concentrate, but he “seems able to focus and complete 

tasks he enjoys and did a good job with attention and task persistence during th[e] examination.” 

(R. at 486-87.) 

D. State agency review 

Twice in 2014 R.T.S.’s childhood disability claim and medical record were reviewed, 

analyzed, and his limitations evaluated in each of the six functional domains. (R. at 491-96, 

519-23.) In May, John L. Marmol, M.D., and Tonnie Hoyle, Ph.D. determined that R.T.S.’s 
9 

impairments did not meet, medically equal, or functionally equal any listed childhood 

impairment. (R. at 491.) They concluded that the educational and medical record 

demonstrated “less than marked” limitation in the domains of acquiring and using information, 

attending and completing tasks, and interacting and relating with others; and “no” limitation in 

the domains of moving about and manipulating objects, caring for oneself, and health and 

physical well-being. (R. at 493-94.) They concluded that significant medical improvement has 

been shown. (R. at 496.) 

In October, 2014, reviewing the updated medical record in October, psychologist Leslie 

Rudy, Ph.D., and pediatrician, Bruce Mirvis, M.D., assessed a marked limitation in in the 

domain of acquiring and using information finding that R.T.S.’s overall language skills just fell 2 

standard deviations from the mean, and based on his April 2014 I.Q. scores and school evidence 

indicated delays in reading and math. (R. at 519-23.) 

IV. EDUCATIONAL RECORDS 

In assessing R.T.S.’s special education services transition from preschool to kindergarten 

in May 2012, an evaluation team, consisting of teachers, counselors, school psychologist and 

therapist, from Columbus City Schools completed an Evaluation Team Report (“ETR”). (R. at 

385-419.) R.T.S. was first identified educationally as a preschooler with special needs in 

October 2009. (R. at 386.) He received classroom-based intervention services for speech, 

occupational and physical therapy. (Id.) As part of the ETR, R.T.S. took the Kaufman 

Assessment Battery for Children which revealed a below average score in sequential processing; 

a lower extreme range score in simultaneous processing; an average score in learning ability; and 

a lower extreme score in mental processing. (R. at 387.) The Vineland II Adaptive Behavior 

Scaled revealed significant deficits in the areas of communication, socialization, and daily living 
10 

skills. (Id.) The ETR team concluded that R.T.S. was unable to demonstrate friendship 

seeking behavior, have a best or preferred friend, choose not to say embarrassing things in 

public, play cooperatively with one or more children for up to 5 minutes, or talk with others 

without interrupting. (R. at 389.) It was also noted that he needed to improve social interaction 

skills, social play skills, self-control, and emotional regulation and he needs to further develop 

self-image and self-confidence. (R. at 390.) 

 In March 2013, when R.T.S. was in kindergarten, his education team completed an 

Individualized Education Program (“IEP”) for his transition to school age services. R.T.S.’s 

2013 IEP noted that he exhibited behaviors such as threatening words or gestures, teasing, and 

noncompliance with teacher requests which has greatly improves since the beginning of the 

school year. (R. at 423-24.) The IEP also noted that R.T.S. still has a difficult time dealing 

with large or loud events such as assemblies. (Id.) R.T.S. has made “great strides in 

academics. He knows all the letters and the common sounds that letters make. He is now 

reading at a TRC level B, and can read at least 23 words on the kindergarten word wall list. 

Plaintiff sees reading as R.T.S.’s most important area. She notes “that he loves to read.” His 

ability to write is also much improved. In the area of math, R.T.S. can count by rote to at least 

50, sometimes higher, he can identify numbers to 30, not always consistently, and knows the 

days of the week, months, etc. (R. at 424.) 

 His 2014 IEP showed R.T.S. exhibits a moderate articulation impairment and a severe 

language impairment. He received a TOLD-F4 P4 (Test of Language Development), standard 

score of 60 and a standard score of 74 on Goldman Fristoe Test of Articulation which places 

R.T.S. well below average for his age. (R. at 464.) It was noted that his low language skills 
11 

hinder his participation and performance in the classroom discussions, socialization activities, 

and reading/writing tasks. (Id.) R.T.S. was placed in language therapy, speech therapy, and 

occupational therapy. His teacher reported that R.T.S. has continued to work hard at 

maintaining speech sounds but struggled with /r/ and /sh/ in sentences; had difficulties 

identifying similarities and differences in words and giving examples of synonyms and 

antonyms. (Id.) R.T.S.’s reading level was at the lower kindergarten level. In math, R.T.S. 

was able to add double digit numbers without carrying confidently and perform double digit 

carrying but he was not consistent. He recognized coins and knew their value. He was able to 

add simple coins to a specific amount, but did not do this consistently. R.T.S. was able to tell 

time to the hour, 1/2 hour and 5 after. R.T.S. wrote neat and legible and he was able to write 4-

5-word sentences. During this school year R.T.S. was receiving occupational therapy working 

on his pencil grip. (Id.) 

 R.T.S. underwent his three-year evaluation, with an updated ETR in April 2015, when he 

was 9 years old in the second grade. (R. at 535-52.) Following the assessment results and 

description of his education needs, R.T.S.’s team concluded that he needed specialized 

instruction and significant modification and support to compensate for educational deficits in 

reading, writing, and math. They noted that he was likely to need directions repeated, 

assignments and information broken down into smaller parts and repetition for new material. 

(R. at 550.) 

 In February 2016, R.T.S.’s third grade teacher completed an assessment scale in which 

she reported that R.T.S. failed to give attention to details, had difficulty organizing tasks and 

activities, was easily distracted, left his seat in the classroom, interrupted others, and was fearful 

or anxious. (R. at 570.) She also noted that he had somewhat of a problem with written 
12 

expression; following directions; disrupting class; assignment completion; and organizational 

skills. (R. at 571.) 

V. ADMINISTRATIVE DECISION 

On July 19, 2017, ALJ Yerian issued his decision. (R. at 10–26.) The ALJ noted that 

the most recent favorable medical decision finding that R.T.S. was disabled is the determination 

dated July 21, 2009. This is the "comparison point decision" or CPD. At the time of the CPD, 

R.T.S. had the following medically determinable impairments: speech and language disorder. 

(R. at 13.) The ALJ concluded medical improvement occurred as of May 1, 2014. The ALJ 

then determined that since that time, the impairments that R.T.S. had at the time of the CPD have 

not functionally equaled the Listings. (R. at 14.) Since May 1, 2014, the ALJ found that R.T.S. 

suffered from “severe” speech and language disorder; borderline intellectual functioning; 

ADHD; and specific learning disability within the meaning of 20 C.F.R. §416.924(c). (R. at 

15.) He concluded, however, that R.T.S. does not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the listed impairments in 20 

CFR Part 404, Subpart P, Appendix 1. (R. at 16.) In the six domains used to determine a 

child’s functional equivalence, the ALJ found that R.T.S. has “less than marked” limitation in the 

domains of acquiring and using information,4

 attending and completing tasks, and interacting 

and relating with others; and “no” limitation in the domains of moving about and manipulating 

objects, caring for oneself, and health and physical well-being. (R. at 20-26.) The ALJ 

consequently concluded that R.T.S.’s disability ended as of May 1, 2014, and he has not become 

disabled again since that date. (R. at 26.) 

 

4 As discussed more fully, infra, the ALJ found that R.T.S. had a marked limitation in this 

domain. 
13 

VI. STANDARD OF REVIEW 

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. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 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 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 & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 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 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 

270, 273 (6th Cir. 1997)). 

 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)). 
14 

VII. SEQUENTIAL EVALUATION PROCESS IN CONTINUTING DISABILITY 

REVIEW OF CHILD DISABILITY 

Pursuant to Title XVI of the Social Security Act, “[a]n individual under the age of 18 

shall be considered disabled for the purposes of this subchapter if that individual 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 

Act generally requires continued eligibility for benefits after the initial determination of 

eligibility and requires termination of benefits if the individual is no longer eligible. See 42 

U.S.C. § 423(f). Not less frequently than every three years, the Commissioner must conduct a 

“continuing disability review” to determine whether the individual is eligible for benefits. See

42 U.S.C. § 1382c(H)(ii)(I). 

The framework used to review SSI benefits previously awarded to a child is set forth at 

20 C.F.R. § 416.994a. Under the regulations, the ALJ determines in the first step of the analysis 

whether there has been “medical improvement” from the most recent favorable determination 

(i.e., the “comparison point decision” or “CPD”). 20 C.F.R. § 416.994a(a)(1). If there has 

been no medical improvement, the child’s disability typically will be deemed to continue. 20 

C.F.R. § 416.994a(b)(1). If there has been medical improvement, the ALJ must determine at 

step two whether the impairment(s) considered during the CPD still meets or equals the severity 

of the listed impairment it met or equaled at that time. If the impairment(s) meets or equals the 

severity of the listed impairment it met or equaled at the time of the CPD, the claimant typically 

is deemed to be disabled. 20 C.F.R. § 416.994a(b)(2). 
15 

If there has been medical improvement in the claimant’s impairment(s) and the 

impairment(s) no longer meets or equals the severity of the listed impairment that it met or 

equaled at the time of the CPD, the ALJ will proceed to step three and consider whether the 

claimant is disabled under the rules in 20 C.F.R. § 416.924(c) and (d). 20 C.F.R. § 

416.994a(b)(3). Under these provisions, the child must have a severe impairment or 

combination of impairments that meet, medically equal, or functionally equal one of the 

impairments identified in 20 C.F.R. Part 404, Subpart P, Appx. 1. 20 C.F.R. § 416.924(a); Elam 

v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003). If a child’s impairment(s) does not 

meet or medically equal a listed impairment, the Commissioner assesses all functional 

limitations caused by the impairment(s) to determine if the child’s impairment(s) is functionally 

equivalent in severity to any of the listed impairments. 20 C.F.R. § 416.926a. The 

Commissioner considers six areas of development in determining whether a child’s impairments 

are functionally equivalent to a listed impairment: (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 yourself; and (6) health and physical well-being. 20 C.F.R. 

§ 416.926a(b)(1)(i)-(vi). To meet the “functional equivalence” requirement, the claimant must 

have a severe impairment that results in “extreme limitation” in one area of functioning or 

“marked limitations” in two areas of functioning. 20 C.F.R. § 416.926a(d). 

A claimant has a “marked” limitation if the claimant’s impairments seriously interfere 

with the claimant’s ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 

416.926(e)(2)(i). A “marked” limitation is more severe than “moderate” and less severe than 

“extreme.” 20 C.F.R. § 416.926(e)(2)(i). An impairment causes an “extreme” limitation when 

it interferes very seriously with the claimant’s ability to independently initiate, sustain, or 
16 

complete activities. 20 C.F.R. § 416.926(e)(3)(i). In determining the effect of an impairment on 

the six domains, the Commissioner considers information from medical sources, parents and 

teachers, and consultative examiners. 20 C.F.R. § 416.926a(b)(3). 

VIII. ANALYSIS 

 In her Statement of Errors, Plaintiff contends that the ALJ’s determination that a medical 

improvement occurred is not supported by substantial evidence. Plaintiff also argues that the 

ALJ erred by finding R.T.S.’s limitation to be “less than marked” impairments in the functional 

domains of acquiring and using information and interacting and relating to others. Plaintiff 

further contends that the ALJ failed to properly evaluate the treating source medical opinions of 

Dr. Marilynn Peters and, as a result, erred in failing to grant controlling weight to her opinion. 

(ECF Nos. 8 and 14). In response, the Commissioner essentially disregards Plaintiff’s 

contentions of error and recasts her arguments to suit his analysis. He asserts that Plaintiff’s 

arguments “are just slightly different ways of expressing her disagreement with the amount of 

weight given to the four medical opinions of evidence.” (Def’s Brief, ECF No. 13 at p. 11.) 

The Undersigned disagrees. Because the Commissioner has failed to refute Plaintiff’s 

contentions that the ALJ improperly determined that R.T.S. experienced “medical improvement” 

under the agency’s rules and regulations and improperly evaluated the domain of acquiring and 

using information, and based upon an independent analysis, the Undersigned concludes that 

substantial evidence does not support the ALJ’s determination in these regards. The 

Undersigned finds that remand is appropriate.5

 

5

 This finding obviates the need for in-depth analysis of Plaintiff=s remaining assignments of 

error. Thus, the Undersigned need not, and does not, resolve the alternative bases Plaintiff 

asserts support reversal and remand. Nevertheless, on remand, the ALJ may consider Plaintiff=s 

remaining assignments of error if appropriate. 
17 

 Plaintiff’s arguments regarding the ALJ’s assessment as to whether R.T.S. experienced 

“medical improvement” or properly evaluated the domain of acquiring and using information are 

related. The Commissioner addressed neither argument. Although the Court could deem the 

matters conceded, the Undersigned nevertheless provides the following analysis on these two 

subjects. 

The operative regulations define “medical improvement” as follows: 

Medical improvement is any decrease in the medical severity of your impairment(s) 

which was present at the time of the most recent favorable decision that you were 

disabled or continued to be disabled. Although the decrease in severity may be of 

any quantity or degree, we will disregard minor changes in your signs, symptoms, 

and laboratory findings that obviously do not represent medical improvement and 

could not result in a finding that your disability has ended. A determination that 

there has been a decrease in medical severity must be based on changes 

(improvement) in the symptoms, signs, or laboratory findings associated with your 

impairment(s). 

20 C.F.R. § 416.994a(c); Tubbs v. Comm’r Soc. Sec., No. 1:11-cv-1046, 2013 WL 1305290, at 

*2–3 (W.D. Mich. 2013). 

 Here, the ALJ determined that R.T.S.’s speech and language disorder no longer resulted 

in an extreme limitation. The ALJ’s reasoning was limited: 

[R.T.S.’s] speech and language disorder no longer results in extreme limitation. 

At the time of the CPD, [R.T.S.] had standardized language scores three standard 

deviations below the mean. Subsequent testing shows standardized langue scores 

only two standard deviations below the mean, consistent with medical 

improvement related to speech and language deficits. . . . 

(R. at 14.) 

 The ALJ analyzed R.T.S’s domain of “acquiring and using information” as follows: 

 

 
18 

Since May 1, 2014, the claimant has had less than marked limitation in acquiring 

and using information, including as a result of the impairments present at the CPD. 

The most recent speech and language evaluation revealed a core language score of 

70, a significant improvement from prior testing, although consistent with severe 

mixed expressive/receptive language deficits. The claimant had moderate 

articulation disorder but intelligibility over 90% in all contexts (Exhibit 9F). 

Likewise, Dr. Kramer observed 80-85% intelligibility in the unknown context but 

closer to 95% in known contexts. The claimant's verbal comprehension as a 

relative weakness during testing with a full scale IQ of 70, indicative of borderline 

intellectual functioning. Dr. Kramer noted that the claimant was able but slow to 

process answers and well behind expectations in his ability to problem-solve. 

Most cognitive skills appeared within the borderline range. He struggled to learn 

new skills (Exhibit 1OF). He received services for specific learning disability. 

He made steady and mostly adequate progress in all areas at school, however, with 

interventions, including special education and speech therapy (Exhibits 3F, SF , 6F, 

8Fm 13F, 15F, 16F, 17F, 18F, 21F, 24E). Thus, the evidence supports marked 

limitation in this area. 

(R. at 21, emphasis added.) 

 To begin, the ALJ’s assessment is internally inconsistent. The ALJ first indicates that 

R.T.S. has “less than marked limitation,” but then indicates that he has “marked limitations” in the 

area of acquiring and using information. The Undersigned will ignore this inconsistency and 

regard it as a typographical error. See Calkins v. Sec’y of Health and Human Servs., 793 F.2d 

1290 (Table), 1986 WL 17083, at *1–2 (6th Cir. 1986) (holding district courts may disregard “a 

rather obvious typographical error in the ALJ’s opinion” and examine “the opinion as a whole to 

interpret the true meaning of the ALJ’s findings.”); see also Gribbins v. Comm’r Soc. Sec. Admin., 

37 F. App’x 777, 779 (6th Cir. 2002) (stating that “[t]he findings and conclusions of the 

Commissioner are reviewed by this court in the context of the record as a whole” and finding that 

the district court “did not err in finding mere typographical error in the ALJ’s second statement 

regarding residual functional capacity” when reviewing “the hearing transcript and the ALJ’s 

decision in pari materia”) (citations omitted); Yerian v. Comm’r Soc. Sec., No. 2:17-cv-562, 2018 
19 

WL 3045076, at *5 (S.D. Ohio June 20, 2018) (rejecting a contention of error based on a 

typographical error in the ALJ’s discussion of the state agency reviewing psychologists’ opinions 

because “[i]t is clear from the context as well as the decision as a whole, however, that the ALJ 

considered the opinions in assessing Plaintiff’s mental RFC”), report and recommendation 

adopted by 2018 WL 4357479 (S.D. Ohio Sep. 13, 2018). 

Nevertheless, reviewing the decision as a whole, the ALJ still erred in his assessment of 

R.T.S.’s domain of “acquiring and using information.” In making the determination, the ALJ 

failed to mention or rely upon SSR 09-3p in evaluating the domain of “acquiring and using 

information.” SSR 09-3p explains the proper method to evaluate school records, academic 

performance, and special education assistance: 

Accordingly, this domain considers more than just assessments of cognitive ability 

as measured by intelligence tests, academic achievement instruments, or grades in 

school. 

. . . . 

Because much of a preschool or school‐age child’s learning takes place in a school 

setting, preschool and school records are often a significant source of information 

about limitations in the domain of “Acquiring and using information.” Poor grades 

or inconsistent academic performance are among the more obvious indicators of a 

limitation in this domain provided they result from a medically determinable mental 

or physical impairment(s). Other indications in school records that a mental or 

physical impairment(s) may be interfering with a child’s ability to acquire and use 

information include, but are not limited to: 

• Special education services, such as assignment of a personal aide who helps the 

child with classroom activities in a regular classroom, remedial or compensatory 

teaching methods for academic subjects, or placement in a self‐contained 

classroom. 

• Related services to help the child benefit from special education, such as 

occupational, physical, or speech/language therapy, or psychological and 

counseling services. 

• Other accommodations made for the child’s impairment(s), both inside and 

outside the classroom, such as front‐row seating in the classroom, more time to take 
20 

tests, having tests read to the student, or after‐school tutoring. 

The kind, level, and frequency of special education, related services, or other 

accommodations a child receives can provide helpful information about the severity 

of the child’s impairment(s). However, the lack of such indicators does not 

necessarily mean that a child has no limitations in this domain. For various reasons, 

some children’s limitations may go unnoticed until well along in their schooling, 

or the children may not receive the services that they need. Therefore, when we 

assess a child’s abilities in any of the domains, we must compare the child’s 

functioning to the functioning of same‐age children without impairments based on 

all relevant evidence in the case record. 

Although we consider formal school evidence (such as grades and aptitude and 

achievement test scores) in determining the severity of a child’s limitations in this 

domain, we do not rely solely on such measures. We also consider evidence about 

the child’s ability to learn and think from medical and other non-medical sources 

(including the child, if the child is old enough to provide such information), and we 

assess limitations in this ability in all settings, not just in school. 

SSR 09-3P, Determining Childhood Disability—The Functional Equivalence Domain of 

“Acquiring and Using Information,” 2009 WL 396025, at *3. 

 The ALJ’s conclusion that there has been medical improvement in this domain is based 

primarily on an improvement in test scores. An improvement in scores alone, however, is not 

substantial evidence. The domain of acquiring and using information involves how well 

children perceive, think about, remember, and use information in all settings, including their 

daily activities at home, at school, and in the community. See 20 C.F.R. § 416.926a(g) and SSR 

09-3p; Cooper v. Comm’r of Soc. Sec., Case No. 1:16-cv-240, 2016 WL 7077042, at *9 (S.D. 

Ohio, 2016). “As SSR 09–3p suggests, an ALJ must consider more than just IQ scores when 

considering a child’s level of impairment. He must also find that the child’s daily functioning 

level is consistent with those scores.” Sewell ex rel. HMC v. Comm’r of Soc. Sec., No. 10-

12520, 2011 WL 3566471, at *8 (E.D. Mich. July 20, 2011), report and recommendation 

adopted sub nom. Sewell v. Comm’r of Soc. Sec., No. 10-12520, 2011 WL 3566401 (E.D. Mich. 
21 

Aug. 12, 2011) (quoting Williams v. Astrue, No. 09C6981, 2011 WL 1935830 (N.D. Ill. 2011) 

(citing 20 C.F.R. § 416.926a(e)(4)(ii))). 

 In his analysis, the ALJ discussed R.T.S.’s IQ scores, noting that they were indicative of 

borderline intellectual functioning. (R. at 21.) The ALJ also referred to several notes in support 

of R.T.S.’s continued limitations, indicating that R.T.S. was “well behind expectations in his 

ability to problem solve,” “he struggled to learn new skills,” “he received services for specific 

learning disability,” and he required “interventions, including special education and speech 

therapy.” These brief paragraphs provided by the ALJ do not constitute substantial evidence in 

support of medical improvement or provide a proper analysis of why R.T.S.’s abilities in this 

domain were no longer extreme, as he had been found at the time of the CPD. 

The ALJ’s determination that R.T.S. medically improved is not supported by substantial 

evidence. “The regulations governing an initial determination of childhood disability do not ask 

an ALJ to consider improvement but rather to ‘compare your functioning to the typical 

functioning of children your age who do not have impairments.’” 20 C.F.R. § 416.926a(f)(1); 

see also SSR 09–2p (“The critical element in evaluating the severity of a child’s limitations is 

how appropriately, effectively, and independently the child performs age-appropriate 

activities.”). As one court explained: 

[P]resumably, a child with serious limitations could show a measure of progress 

and still fall within the marked or extreme functional categories compared to other 

children her own age. Id. The ALJ is required—and failed in this case—to 

compare the claimant to nonimpaired children her own age. The social security 

ruling that addresses this domain stresses that an ALJ should “focus first on the 

child’s activities, and evaluate how appropriately, effectively, and independently 

the child functions compared to children of the same age who do not have 

impairments.” SSR 09–3p. Indeed, “[s]atisfactory grades awarded to special 

education students receiving support and modifications cannot automatically be 

equated to the grades of nonimpaired children without more discussion than the 

ALJ provided here.” Williams, at *12, citing, 20 C.F.R. § 416.924a(b)(7)(iv) 
22 

(“[W]e will consider that good performance in a special education setting does not 

mean that you are functioning at the same level as other children your age who do 

not have impairments.”). Thus, the ALJ’s extensive reliance on the claimant's 

“improvement” does not address claimant’s functionality in this domain and does 

not provide substantial evidence to support the ALJ's decision in this regard. 

Sewell, 2011 WL 3566471, at *9. 

 Here, the ALJ failed to make this comparison. As the regulations make clear, 

satisfactory grades awarded to special education students receiving support and modifications 

cannot automatically be equated to the grades of nonimpaired children. See 20 C.F.R. § 

416.924a(b)(7)(iv) (“[W]e will consider that good performance in a special education setting 

does not mean that you are functioning at the same level as other children your age who do not 

have impairments.”). The record consistently documents R.T.S.’s continued difficulties in this 

domain. School records throughout the relevant period note that R.T.S. works with a special 

education teacher; his work is modified consistent with his abilities; he needs assistance in order 

to get his work done; his articulation errors and low language skills hinder his participation and 

performance in classroom discussions, socialization activities and reading/writing tasks; and 

testing in 2012 (TOLD-P4) indicated that R.T.S. was generally in the 1 percentile in speaking, 

grammar, and spoken language. (R. at 314; 328, 392; 485; 570.) 

 In 2014, R.T.S. was given intelligence testing by Dr. Jack Kramer. Dr. Kramer noted 

that R.T.S.’s cognitive skills and academic skills were well behind expectations for his age with 

scores of 69 in verbal comprehension and a full-scale IQ of 70, per the Wechsler Intelligence 

Scale for Children- Fourth Edition (WISC-IV). (R. at 483-488.) Dr. Kramer also noted that 

R.T.S. was “slow to process information and skills that are harder for him.” (R. at 484.) 

R.T.S.’s Individualized Education Program (“IEP”) also documents his consistent 

problems in this domain. In 2014, it was noted that R.T.S. was placed in language therapy, 
23 

speech therapy, and occupational therapy and he continued to work hard at maintaining speech 

sounds but struggles with /r/ and /sh/ in sentences; has difficulties identifying similarities and 

differences in words and giving examples of synonyms and antonyms. (R. at 464, 471.) While 

there may be improvement, compared to his abilities in 2009, R.T.S. is still behind when 

compared to other children his age. As noted in his IEP, “although his skills have improved in 

many areas, his expressive and receptive language skills including concepts and articulation 

remain significantly delayed.” (R. at 410.) 

The ALJ’s extensive reliance on R.T.S.’s “improvement” does not address his 

functionality in this domain. The Undersigned therefore finds that the decision is not supported 

by substantial evidence. 

 IX. 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 U.S.C. § 405(g). 

Accordingly, the Undersigned RECOMMENDS that the Court 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) for further consideration consistent with this Report and 

Recommendation. 

X. PROCEDURE ON OBJECTIONS

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 
24 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

August 5, 2019 /s/Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 Chief United States Magistrate Judge