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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT L. THOMAS

O/B/O R.L.T., A CHILD

Plaintiff, CIVIL ACTION NO. 09-10561

v. DISTRICT JUDGE ARTHUR J. TARNOW

COMMISSIONER OF MAGISTRATE JUDGE VIRGINIA MORGAN

SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

This is an action for judicial review of the defendant’s decision denying plaintiff’s

second application for Supplemental Security Income benefits (SSI) on behalf of his son, R.L.T. 

Plaintiff filed for SSI alleging his child’s disability since January 1, 1999. The first application

was denied December 5, 2003 and not appealed. The ALJ declined to reopen it. The child was

born in May, 1998. The defendant found that R.L.T. was ten years old, a school age child, at the

time of the decision on April 12, 2005. The ALJ also found that the child had the severe

impairment of attention deficit hyperactivity disorder (ADHD) and a learning disorder. The ALJ

found “less then marked” limitation in the domains of Acquiring and Using information,

Attending and Completing tasks, and Interacting and Relating with others. (TR 18-20) The ALJ

found that since R.L.T. did not have marked limitations in two or more domains, or extreme

limitations in one domain, the child was not disabled and the ALJ denied benefits. This became

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the final decision of the agency from which plaintiff now appeals. Plaintiff alleges that the

decision denying benefits was not supported by substantial evidence. Defendant contends

otherwise. For the reasons discussed in this report, it is recommended that the defendant’s

motion for summary judgment be granted, that of the plaintiff denied, and the decision denying

child’s benefits be affirmed.

Standard of Review

The issue before the court is whether to affirm the Commissioner's determination. In

Brainard v. Secretary of HHS, 889 F.2d 679, 681 (6th Cir. 1989), the court held that:

Judicial review of the Secretary's decision is limited to

determining whether the Secretary's findings are supported by

substantial evidence and whether the Secretary employed the

proper legal standards in reaching her conclusion. 42 U.S.C.

§405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,

28 L. Ed. 2d 842 (1971). Substantial evidence is more than a

scintilla of evidence but less than a preponderance and is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion. Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229, 59 S.Ct. 206, 83 L. Ed. 2d 126 (1938). The scope

of our review is limited to an examination of the record only. We

do not review the evidence de novo, make credibility

determinations nor weigh the evidence. Reynolds v. Secretary of

Health and Human Services, 707 F.2d 927 (5th Cir. 1983).

Brainard, 889 F.2d at 681. 

Standard of Disability For Child’s Benefits

Under the Social Security Regulations, child’s disability is subject to a three step

analysis. 20 CFR 416.924 et seq. The child must not have engaged in substantial gainful

activity and have severe impairments expected to last for at least twelve months or be fatal. To

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be found disabled, the child must meet certain criteria at Step three. A child will be found

disabled if he has an impairment, or combination of impairments that meets, medically equals, or

functionally equals in severity an impairment listed in the regulations at 20 CFR, Part 404,

subpart P., Appendix 1; §416.924(d). A child’s impairment will generally meet the Listings if it

causes “marked” limitations in two domains, i.e. broad areas of functioning, or “extreme”

limitations in one such area. 20 CFR § 416.911(d), 416.925(b)(2).

 The regulations establish six separate domains relevant to this evaluation. These include:

(1) acquiring and using information; (2) attending and completing tasks; (3) interacting and

relating with others; (4) moving and manipulating objects; (5)caring for self; and (6) health and

well-being. The regulations, 20 CFR 416.926a(e)(2) state that a child has a marked limitation in

the domain when his impairment “interferes seriously” with the ability to independently initiate,

sustain, or complete activities. A child’s day-to-day functioning may be seriously limited when

the impairment limits only one activity or when the interactive and cumulative effects of the

impairment limit several activities. A marked limitation is one that is more than moderate but

less than extreme. It is said to be the equivalent of functioning that would be expected on

standardized testing with scores that are at least two but less than three standard deviations

below the mean. The ALJ articulated the standard to the father and grandmother at the hearing

as “one that clearly sets the child apart from other children his age and background, . . an

immediately apparent and serious thing.” 20 CFR 416.926a(e)(2). Per the regulations,20 CFR

926a(e)(3), a child has an extreme limitation in a domain when his impairment “interferes very

seriously” with his ability to independently initiate, sustain, or complete activities. An extreme

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limitation is more than marked and would be equivalent of functioning at least 3 standard

deviations below the mean. (Tr. 15) As explained by the ALJ at the hearing, an extreme

limitation is one where there is virtually no ability to function in that area at all. These children

are generally granted benefits before any ALJ hearing would be required. (Tr. 207-208)

The ALJ’s Opinion

The ALJ reviewed the impairments in each of the six domains. 

(1) Acquiring and using information. The ALJ found that the child requires special

education and had reading and math skills below his age-appropriate level. However, recent

intelligent testing confirmed the child had average intellectual functioning. The ALJ thus

determined that the child had “less than marked” limitation in this domain.

(2) Attending and completing tasks. The ALJ noted that the child required medication for

attention deficit disorder (ADD) and is somewhat hyperactive in class. The ALJ found no

indication that these limitations were chronic in nature and concluded that the child had “less

than marked” limitation in this domain.

(3) Interacting and relating with others: The ALJ noted that the child had gotten into

some fights at school, but there was no indication of frequent suspensions or chronic behavioral

problems. The ALJ concluded that the child had “less than marked” limitation in this domain.

(4) Moving about and manipulating objects. This domain was not shown to have been

affected by the child’s impairments. The child alleges no physical limitations and there is no

indication he has any limitation with respect to using his arms and legs. The ALJ found no

limitation in this domain.

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However, giving complete credence to that review would not result in an entitlement to

benefits because Dr. Crowther found marked limitation in only one domain, the same as the ALJ.

In addition, there is no evidence of extreme limitation in any area. 

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(5) Caring for yourself. This domain was reviewed by the ALJ and he determined that

the child was able to care for his personal needs and had no indication of communication

deficits. Thus, the ALJ concluded that there were no limitations in this domain.

(6) Health and physical well-being. The ALJ noted that there were no indications of

physical problems or need for persistent treatment. The child required medication for the

attention deficit disorder but there was no indication of side effects from the medication. Thus,

the ALJ concluded that there was no limitation in this domain.

Plaintiff’s Argument

Plaintiff argues that the ALJ erred because the record supported either (1) an extreme

limitation in attending and completing tasks, or (2) marked limitations in both attending and

completing tasks, and acquiring and using information. Plaintiff argues that the ALJ should have

discussed and considered the childhood disability evaluation form that was completed by Dr.

Crowther, a medical professional, in September 2005. Dr. Crowther found that the child

suffered no extreme limitations and a marked limitation in only one domain, that of attending

and completing tasks.1

 (TR 108)

Analysis

It is clear that R.L.T. may have some severe learning difficulties and is ADHD. 

However, no evidence supports any more than marked limitations in the one domain of attending

and completing tasks. 

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At the hearing before the ALJ, plaintiff (the father) testified that he lives with son R.L.T.

and his own mother (the child’s grandmother) in Saginaw. The father has never been married. 

He has two other children, daughters who are younger than R.L.T.. They are fine and they live

with their mother. One is in fourth grade. R.L.T. is also in the fourth grade and is in special

education for all classes. He has not been held back. He has a reading limitation and an attention

deficit disorder which requires counseling and medication for the condition. R.L.T. can generally

make himself understood but does not have a good vocabulary. (Tr. 216) The father also

indicated that the son was generally well behaved and had no physical problems. He cleans his

room, takes out the trash, helps with yard work. (Tr. 216) He may not finish a project because he

lacks concentration, but can do it. (Tr. 217) R.L.T. has no medical problems other than the

ADHD. The medication has seemed to help him. (Tr. 218) He interacts with his sisters and

although there are sometimes fights, he is not different from what one would normally expect.

(Tr. 219) He has had some disciplinary problems at school but after one incident, not too much

more. (Tr. 220) R.L.T. is respectful of his grandmother and his teachers. (Tr. 220) R.L.T. likes

gym, computer class and video games. (Tr. 220) He goes to an after-school program every day

from 3:30 to 6:15. (Tr. 221) On weekends, he gets together with other kids and plays. Generally,

there are no problems. He can dress himself, sometimes has trouble with buttons, but washes,

brushes his teeth, sleeps ok except for when there are gunshots in the neighborhood, runs, walks,

no motor problems. (Tr. 223) He likes to watch TV, play basketball, and work on little toy cars

at the house, taking them apart and putting them back together. In his father’s opinion, he is a

risk taker, sometimes trying to duplicate Motorcross events on his bicycle which he has watched

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on TV. (Tr. 225) He has problems reading and feels bad when he comes home from school and

has not been able to do the work. (Tr. 226) During the hearing, R.L.T. appeared to be drowsy

and rubbed his eyes. His father reported that was because R.L.T. has allergies and the father had

given him Benadryl prior to the hearing. (Tr. 227) The paternal grandmother also testified and

reported that the child had comprehension problems. The child had to be constantly reminded

and he is just like a live wire. In her opinion, this comes from the other side of the family–on his

mother’s side; that side is very slow. (Tr. 230)

A mental status examination showed attention and concentration were poor. The child

had two I.Q. tests. The first one in 2003 showed verbal IQ of 80, with a performance IQ of 79

and a full scale IQ of 76, placing him in the borderline area of intelligence and the examiner

opined that the child could have ADHD. Records from 2005 in the Saginaw school district

indicate that when the child was in first grade, he had a history of being over active in class and

testing confirmed evidence of ADHD. Records from the family physician Bernard Noveloso

indicate that as of March 2005, the child suffered from an attention deficit disorder and he

started the child on Ritalin. 

The child underwent a psychological examination on August 29, 2005 performed by

Nathalie Menedes, Ph.D. Mental status examination showed the child to be polite and able to

follow directions well. Deficiencies were noted on memory testing. Child was fidgety and had

difficulties with his ability to concentrate. Diagnosis included attention deficit disorder and a

learning disorder. The child had a GAF of 65. 

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Saginaw school district records show reading and math and writing skills below grade

level. An I.Q. test performed by Dr. Shanahan on December 8, 2005 show a verbal IQ of 105 a

performance IQ of 91 and a full scale IQ of 98, placing the child in the average range, not

borderline range, of intelligence. The child, who was then in second, grade had reading and

math skills at first grade level. In December 7, 2006 the child was taking Concerta instead of

Ritalin for an attention deficit disorder. A school activities questionnaire completed March 18,

2008 by the child’s special education teacher indicated that the child was in fourth grade but

generally functioned at first grade level with a short attention span and needing to be wrote

refocused constantly. The child had been suspended due to fighting.

A review of the records was conducted by Dr. Crowther. He found that R.L.T.’s 

impairment or combination of impairments was severe but did not meet, medically equal, and

was not the functional equal of any of the listings. (TR 106) Dr. Crowther found marked

limitations only in the domain of attending and completing tasks. In making that determination

Dr. Crowther noted that the grandmother stated that the child was taking Ritalin but the

prescription has now switched to Concerta which was more helpful. The grandmother stated the

child is only able to follow one step instructions, need several reminders to do household chores,

and often gets distracted. The teacher has indicated that the child is very active and hard to settle

down. The child was noted by the teacher to be impulsive and easily distracted and needed

redirecting. Because Dr. Crowther determined that only one domain had marked limitations, the

evaluation would not support benefits even if this had been given full discussion and complete

credence by the ALJ.

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R.L.T. has less than marked difficulties in acquiring and using information. The records

and statements by the father indicate that the child is of average intelligence, participates in

sports, loves to play basketball, reads Harry Potter books (albeit with some difficulty), and

understands what he sees on TV and in video games. Examples in the regulations indicate

children could have difficulty in acquiring and using information when they do not understand

words about this size or time (such as in/under or big/little or morning/night). R.L.T. does not

show this. They may also have difficulty if they cannot rhyme words or the sounds in words,

have difficulty remembering important things learned in school yesterday, difficulty in solving

mathematics questions or computing arithmetic answers, or talk only in short simple sentences

with difficulty explaining what he/she means. While R.L.T. had some difficulty writing, he had

the ability to speak well and express himself. If he had three wishes, he would wish for a dog, a

motorcycle, and a scooter. (Tr. 102) He participates in many activities and understand what goes

on. He noted was able to spell his last name backward, knew who the president was, could

recognize shares and colors and knew the names of characters on a TV show that he watched.

(Tr. 103) Dr. Menendes noted that during the interview the child was polite, friendly, followed

directions, and was cooperative. (TR 101) He was very active and inquisitive and enjoyed

playing Dominos for fun. His thought content was normal and age-appropriate. Dr. Menendes

felt that the borderline intellectual test results were under estimate of his actual ability which is

consistent with the subsequent testing which puts him in the average range of intellectual

functioning. (TR 103-105, TR 179).

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While R.L.T. may have marked limitations in the domain of attending and completing

tasks, he has had recent improvement with medication and counseling. He can complete some

household chores and self care items. (TR 47, 48, 101, 216, 220, 222, 224) He cleaned his room

daily and emptied the trash, although he needed help and putting his things away properly. (TR

47) He liked working on toy cars, drawing, and playing sports. (TR 48) His teacher reported

that with his ADHD medication resulted in his being more attentive and gave him more control

over his own actions. R.L.T. was able to focus on the lessons and activities without his many

verbal outbursts, fidgeting and reporting on others. Although R.L.T. had trouble completing

assignments because he had limited skills which were exacerbated by his missing the first 130

days of first-grade, he was making improvement now that he was on the medication and was

more focused and cooperative. (TR 90) In 2006, the child’s father reported that the child was

doing well in school.(TR 124) The child was inquisitive, able to perform well on math testing,

and his thought content was age-appropriate. (TR 108) Considering the evidence as a whole, the

ALJ’s opinion denying benefits was supported by substantial evidence. There is no showing

that the continued existence of his learning problems moves him from marked to extreme

limitations in this one domain and therefore he is not entitled to benefits.

Conclusion

Accordingly, it is recommended that the defendant’s motion for summary judgment be

granted, that of the plaintiff denied, and the decision denying benefits be affirmed. 

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within ten (10) days of service of a copy hereof as

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provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(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, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues,

but fail to raise others with specificity, will not preserve all the objections a 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). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

magistrate judge.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

each issue contained within the objections specifically and in the same order raised.

s/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: January 4, 2010

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record via the Court’s ECF System and/or U. S. Mail on

January 4, 2010.

s/Jane Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

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