UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TYWANA LEWIS o/b/o

BRIANNA BRENDA LEWIS,

Plaintiff, CIVIL ACTION NO. 08-cv-14630

vs.

DISTRICT JUDGE GEORGE CARAM STEEH

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY,

Defendant.

________________________/

REPORT AND RECOMMENDATION

RECOMMENDATION: Defendant’s Motion for Summary Judgment (docket no. 18) should be

GRANTED and Plaintiff’s Motion for Summary Judgment (docket no. 15) should be DENIED, as

there was substantial evidence on the record to support the Administrative Law Judge’s decision to

deny Social Security Supplemental Security Income. 

***

II. PROCEDURAL BACKGROUND:

Plaintiff is a minor child. Her mother, Tywana Lewis, filed an application for Social

Security Supplemental Security Income (SSI) childhood disability benefits on her behalf on May

31, 2005 alleging that she had been disabled since May 18, 2005 due to a developmental learning

disorder, lead poisoning, back injury, headaches and dysthymia. (TR 18, 30). The Social Security

Administration denied benefits. (TR 29, 30-33). A requested de novo hearing was held on

September 24, 2007, before Administrative Law Judge (ALJ) David F. Neumann, who subsequently

found that the claimant was not entitled to disability benefits. (TR 15-26). Claimant’s mother and

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claimant testified at the hearing. In a decision dated April 22, 2008 the ALJ determined that the

claimant was not entitled to childhood disability benefits because she did not have an impairment

or combination of impairments that results in either “marked” limitations in two domains of

functioning or “extreme limitations in one domain of functioning.” (TR 25). The Appeals Council

declined to review the ALJ’s decision and Plaintiff commenced the instant action for judicial review

(TR 5-7). 

Defendant filed a Motion for Summary Judgment and the Court ordered Plaintiff to show

cause for failing to adhere to the Court’s scheduling order in filing her Motion for Summary

Judgment. (Docket no. 19). Plaintiff responded to the Order to Show Cause by filing a document

titled “Response To Show Summary For Cause/Document For Motion Summary” (docket no. 20)

after the Court’s deadline to show cause. Plaintiff’s Response referenced Plaintiff’s February 12,

2009 letter and asked that the letter be considered her Motion for Summary Judgment. The February

12, 2009 letter appears on a form titled “Scheduling Order.” (Docket nos. 15, 20). The Court is

mindful that it is required to construe Plaintiff’s pro se pleadings liberally, and hold them to “less

stringent standards than formal pleadings drafted by lawyers.” See Haines v. Kerner, 404 U.S. 519,

520 (1972). The Court will treat Plaintiff’s February 12, 2009 letter as her Motion for Summary

Judgment. (Docket nos. 15, 20). The issues for review are whether Defendant’s denial of childhood

Supplemental Security Income was supported by substantial evidence on the record and whether

Plaintiff’s claim should be remanded for consideration of new evidence pursuant to sentence six of

42 U.S.C. § 405(g). 

III. PLAINTIFF’S TESTIMONY AND MEDICAL AND RECORD EVIDENCE

A. Testimony and Reports

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At the hearing the ALJ notified Plaintiff’s mother of her right to be represented and

Plaintiff’s mother stated that she had received the list of representatives, had spoken to one over the

phone who had told her he would take her case, but he did not return her calls thereafter. Plaintiff’s

mother stated at the hearing that she would proceed on her own and that she would like to waive her

right to representation. (TR 172-72). 

Plaintiff’s mother testified that Plaintiff had elevated lead levels, but as Plaintiff got older,

the lead had cleared out of her system. (TR 179). Plaintiff’s mother testified that Plaintiff had never

been admitted to the hospital and she had never taken medication for lead poisoning. (TR 177).

Plaintiff’s mother testified that Plaintiff looks at the television when it is not on and says that she

is watching cartoons; her mother took her to a psychiatrist and several psychologists for this reason.

(TR 168-69). Plaintiff’s mother agreed that Plaintiff is easily distracted and she daydreams about

television programs. (TR 185). Plaintiff’s favorite television programs are Powder Puff Girls and

Rug Rats. (TR 195).

Her mother testified that during the prior year she had to go to the school “constantly” for

issues related to Plaintiff, including fighting. (TR 170). She testified that Plaintiff interacts

“violently” with her siblings, for example, by hitting and choking a younger sibling and arguing and

fighting with the other siblings. (TR 183-84). Plaintiff’s mother testified that Plaintiff has one

friend at school. (TR 184). Plaintiff’s mother testified that Plaintiff complains of headaches and

back aches and the doctors advised giving her Motrin. (TR 187). Plaintiff’s eating is “pretty good”

and she has trouble falling asleep some days, but sleeps “pretty good” on some days. (TR 190). 

Plaintiff’s mother testified that Plaintiff receives approximately one hour per day of special

education classes at school. (TR 178). Plaintiff is tardy to school and her mother testified that she

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has problems getting Plaintiff ready for school in the morning because Plaintiff complains that she

hates school, the other kids and the teacher. (TR 191). Plaintiff’s hearing and speech are fine and

her mother testified that she was told that Plaintiff has a slight astigmatism. (TR 191). 

Plaintiff colors, plays with dolls, runs and plays outside. (TR 191, 194). Plaintiff helps with

household chores such as picking up shoes. (TR 192). Plaintiff herself testified that she also hangs

up clothes, picks up the trash and puts belts on a hangar. (TR 192). Her mother testified that

Plaintiff needs to have her clothes laid out for her and Plaintiff testified that she can wash and get

herself ready for school. (TR 193). 

B. Medical and Record Evidence

Plaintiff was tested for lead poisoning on August 23, 2004 and the result was a “10

capillary.” (TR 84). When Plaintiff was retested on November 21, 2005 the result was a 3.7 and

it was noted that the result required “[n]o further action unless exposure sources change.” (TR 130).

Plaintiff underwent a state agency psychological assessment examination on August 12, 2005

with Hugh Bray, Ph.D., licensed psychologist. (TR 87-89). Dr. Bray noted that Plaintiff was shy,

cooperative and responsive and she “comprehended tasks, was attentive and able to focus on tasks

within normal limits.” (TR 87). “Her social skills were average for a 7-year-old.” (TR 87).

Plaintiff’s Weschler Full Scale IQ was 68, which was “in the mildly impaired range of intellectual

functioning at the 2nd percentile comparted with her age group peers.” (TR 88). Her verbal

comprehension score was 89, her perceptual reasoning score was 67, and working memory and

processing speed scores were each 68. (TR 88). Dr. Bray found that Plaintiff’s reading grade

equivalent was preschool. (TR 89). Dr. Bray diagnosed Plaintiff with a developmental learning

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disorder in terms of reading and possible generalized anxiety and dysthymia secondary to reading.

(TR 89). He assigned a GAF of 50. (TR 89). 

Plaintiff underwent a state agency physical examination on August 15, 2005 with C.C.

Pujara, M.D. (TR 90-92). Dr. Pujara noted that there was a note from the school indicating that

Plaintiff was absent and tardy often. (TR 90). Dr. Pujara diagnosed Plaintiff will a history of

elevated lead level, headache and back pain, noting that Plaintiff had undergone two spinal taps in

the past and a learning disability, and advised that Plaintiff’s eyes be checked. (TR 91). 

In September and October 2005 Agency consultants completed a Childhood Disability

Evaluation Form and concluded that Plaintiff had “less than marked” limitations in the functional

areas of acquiring and using information, attending and completing tasks, and interacting and

relating with others. (TR 104-05). Plaintiff had no limitations in the functional areas of moving

about and manipulating objections, caring for herself, and health and physical well-being. (TR 105).

In August 2007 Plaintiff underwent a Bio-psychosocial History and Assessment at an

outpatient health center. (TR 141). The evaluating social worker noted that Plaintiff complained

of problems at home with her younger siblings and problems with boys being aggressive at school.

The evaluator noted that Plaintiff’s mother reported that Plaintiff had some self-abusive behaviors

including pulling her hair out. (TR 141). The problems which were identified in the assessment

were lying, self-abusive behavior, daydreaming, comprehension and learning difficulties. (TR 149).

The transcript before the Court contains several records from Plaintiff’s school. On a 2004-

2005 Grade 1 (second quarter) Progress Report, Plaintiff’s teacher noted that Plaintiff “needs more

help” in all categories except handwriting and social habits, categories and skills in which she had

improved to “progressing satisfactorily.” (TR 86). Plaintiff repeated the first grade for the 2005-

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There appears to be a typographical error on this evaluation report where it states that

the evaluation date was “1-29-05," however, the “ERM date” and the Referral/Evaluation

Review/Consent Form are dated “11/28/05.” (TR 109, 113). 

2

With other scores as follows: VCI=98, WMI=62, PRI=102, PSI=83. (TR 113). 

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2006 school year. (TR 85). Plaintiff’s teacher completed a teacher questionnaire dated September

12, 2005 and noted problems ranging from no problems to very serious problems in the activities

of the following domain areas: Acquiring and using information, attending and completing tasks,

interacting and relating with others, and caring for herself. (TR 63-70). Plaintiff’s progress report

for the first grade, dated December 5, 2005, noted that Plaintiff was improving in handwriting, was

average in science, social studies and mathematics, needed to improve in English, and was between

“poor” and “needed to improve” in reading. (TR 134). 

In November 20051

 Plaintiff was evaluated by her school district for special education

services and underwent psychological evaluation at her school with Audrey J. Hamilton, school

psychologist. (TR 109, 113). Plaintiff obtained a WISC-IV full scale IQ of 862

. (TR 113). The

evaluator noted that Plaintiff “remained focused throughout the evaluation process.” The evaluator

noted that Plaintiff’s general cognitive ability was in the “Low Average range of intellectual

functioning,” her “overall thinking and reasoning abilities exceed those of approximately 18% of

children her age,” “her ability to think with words is comparable to her ability to reason without the

use of words,” and both her “verbal and nonverbal reasoning abilities are in the Average range.”

(TR 114). The evaluator concluded that Plaintiff was eligible for Special Education services as a

learning disabled student. (TR 116). 

Plaintiff was evaluated by a “multidisciplinary evaluation team” on January 23, 2006. (TR

117). The team members agreed with Plaintiff’s designation as having a “Specific Learning

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Disability” (340.1713) and recommended that Plaintiff should participate in five hours of special

education and twenty-five hours of general education per week. (TR 117-22). The team noted that

Plaintiff was able to read high frequency words but had an inability to decode other words. (TR

117). Plaintiff’s teacher Ms. Campbell completed an undated Comprehensive Educational Report

indicating that Plaintiff demonstrated weaknesses in reading and was able to read a few high

frequency words. (TR 128). 

Plaintiff’s second grade teacher Georgia M. Lemmons completed a Teacher Questionnaire

dated October 15, 2007. The teacher noted that Plaintiff attends special education classes three

times per week for two hours each time. Plaintiff was reading and performing math at a first grade

level and had written language skills at a kindergarten level. (TR 73). Ms. Lemmons noted that

Plaintiff “needs constant help with all independent activities. Work does not get completed without

help.” (TR 74). 

A progress report from the 2006 to 2007 school year which addressed the goals and

objectives of Plaintiff’s January 2006 Individualized Education Plan (“IEP”) shows that Plaintiff’s

progress improved toward recognizing common sight words, following oral directives and reading

and following simple/complex directions. (TR 136-37). She made “moderate” progress toward her

objectives in more than half of her objective areas and limited progress toward the remaining

objectives. (TR 136-37).

There are no teacher notes or school records which indicate that Plaintiff has any physical

impairments, limitations, or pain. (TR 63, 77). Teacher Questionnaires from September 12, 2005

and October 15, 2007 both indicate that Plaintiff has no problems in the domain of “moving about

and manipulating objects” and her functioning in this area is “age-appropriate.” (TR 67, 77). 

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IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

After finding that the claimant was a school-aged child on the date the application was filed

and the date the decision was entered and had never performed substantial gainful activity, the ALJ

determined that she was impaired as a result of a developmental learning disorder and dysthymia,

severe impairments, but that these problems did not meet or medically equal any of those found in

the Listing of Impairments. (TR 18). Moreover, the ALJ found that the claimant’s impairments did

not “functionally equal” the Listing because she did not have an impairment or combination of

impairments that resulted in marked and severe functional limitations. The ALJ concluded that

Plaintiff was not disabled under the Social Security Act since the May 31, 2005 filing date. 

V. LAW AND ANALYSIS 

A. Standard Of Review

Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s

final decisions. Judicial review of the Commissioner’s decisions is limited to determining whether

her findings are supported by substantial evidence and whether she employed the proper legal

standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Commissioner, 127

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197 (1938)); Walters, 127 F.3d at 528. It is not the function of this court to try cases de novo,

or resolve conflicts in the evidence, or decide questions of credibility. See Brainard v. Sec’y of

Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387

(6th Cir. 1984).

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In determining the existence of substantial evidence, the court must examine the

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 536

(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed, even if the reviewing court would decide the matter

differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial

evidence also supports the opposite conclusion. See Her v. Commissioner, 203 F.3d 388, 389-90

(6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the

substantial evidence standard “presupposes that there is a zone of choice within which decision

makers can go either way, without interference from the courts”).

B. Analysis

1. Eligibility For SSI Childhood Disability Benefits

A child will be considered disabled if she has a “medically determinable physical or mental

impairment, which results in marked and severe functional limitations.” 42 U.S.C.

§ 1382c(a)(3)(C)(i). To determine whether a child’s impairments result in marked and severe

limitations, Social Security Administration (SSA) regulations prescribe a three step sequential

evaluation process:

1. A child will be found “not disabled” if she engages in substantial

gainful activity.

2. A child will be found “not disabled” if she does not have a severe

impairment or combination of impairments.

3. A child will be found “disabled” if she has an impairment or

combination of impairments that meets, medically equals, or

functionally equals an impairment listed in 20 C.F.R. Part 404,

Subpart P, App. 1. 20 C.F.R. § 416.924(a)-(d) (2007).

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A marked limitation is one that “interferes seriously with [a child’s] ability to

independently initiate, sustain or complete activities.” 20 C.F.R. § 416.926a(e)(2). An extreme

limitation is one that “interferes very seriously with [a child’s] ability to independently sustain or

complete activities.” 20 C.F.R. § 416.926a(e)(3).

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To determine whether a child’s impairment(s) functionally equals the listings, the SSA will assess

the functional limitations caused by the child’s impairment(s). 20 C.F.R. § 416.926a(a)(2003). The

SSA will consider how a child functions in six domains:

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. Heath and physical well-being.

20 C.F.R. § 416.926a(b)(1).

If a child’s impairments result in “marked” limitations in two domains, or an “extreme” limitation

in one domain,3

 the impairment functionally equals the listing and the child will be found disabled.

20 C.F.R. § 416.926a(d).

2. Whether Substantial Evidence Supports the ALJ’s Findings With Respect To The Medical

Record and Whether a Sentence Six Remand Is Necessary

Plaintiff’s mother contends in the Motion for Summary Judgment (docket no. 15) that

Plaintiff has arthritis that causes her a great deal of pain, results in Plaintiff being late for school in

the morning, limits her participation in gym class, requires that her lunch be brought to her, and

requires that Plaintiff’s mother assist her in leaving school when she has a flare-up of her arthritis.

(Docket no. 15). 

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Generally, any issues not specifically presented to the Court would be waived. See, e.g.,

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). However, the Court is charged with

the duty to determine whether an ALJ’s findings are supported by substantial evidence and whether

that ALJ employed the proper legal standards. Walters , 127 F.3d at 528. Part of that duty, at least

in this case, is to determine if substantial evidence supports the ALJ’s determinations. Plaintiff’s

assertion is analogous to alleging that she suffers from arthritis, a severe condition at step two and

a condition resulting in a marked limitation in Plaintiff’s ability in one or more of the six areas of

functioning, by itself or in combination with Plaintiff’s other impairments. Because Plaintiff has

raised the issue of her limitations and the severity of her arthritis, the Court will consider steps two

and three of the ALJ’s decision.

At step two, the ALJ found that Plaintiff suffers from a developmental learning disorder and

dysthymia. (TR 18). The ALJ properly pointed out that Hugh Bray, Ph.D., Licensed Psychologist,

diagnosed Plaintiff with a developmental learning disorder in terms of reading, possible generalized

anxiety secondary to reading and dysthymia secondary to reading. (TR 89). The diagnoses of

developmental learning disorder and dysthymia are supported by the findings of a special education

program team that concluded that Plaintiff qualified for special education classes because of her

specific learning disability. (TR 118-24). 

 “Medical evidence of ... impairment(s) must describe symptoms, signs, and laboratory

findings.” 20 C.F.R. § 416.924a(a)(1). Other than the developmental learning disorder and

dysthymia, the only other impairments for which there is medical evidence in the record that was

before the ALJ are Plaintiff’s lead levels. The results from a lead poisoning test performed on

August 23, 2004 revealed a result of “10 Capillary,” and advised that another test be performed on

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 The Court also notes that despite Plaintiff’s mother’s report that Plaintiff misses school

and is tardy due to pain, a Teacher Questionnaire dated October 15, 2007 from Plaintiff’s second

grade notes that there is “no” unusual degree of absenteeism and that she does not “frequently

miss school due to illness.” (TR 73). 

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Plaintiff as soon as possible. (TR 84). A test dated November 21, 2005 resulted in a score of “3.7"

and stated “[n]o additional action unless exposure sources change.” (TR 130). There is no evidence

in the record from which to find that Plaintiff suffers from lead poisoning and has limitations or

impairments as a result.

 The record also shows that Plaintiff complained of eye problems during a Well Child Exam

which bears a fax date stamp from February 15, 2008. (TR 152). The review of systems was noted

as “unremarkable.” (TR 152). Plaintiff was noted to have “poor vision” and referred to an

ophthalmic doctor. (TR 152). The ALJ’s findings at step two are supported by substantial evidence.

There is simply no objective medical evidence in the record to support the finding of impairments

other than a developmental learning disorder and dysthymia.

Plaintiff’s mother argues in her motion for summary judgment that Plaintiff suffers from

arthritis and has submitted to the Appeals Council and this Court additional medical records postdating the ALJ’s April 22, 2008 decision4

. In cases where, as here, the Appeals Council declines

to review the ALJ’s decision, judicial review is limited to the evidence that was part of the record

before the ALJ. Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993); Casey v. Secretary, 987 F.2d 1230,

1233 (6th Cir. 1993); Wyatt v. Secretary, 974 F.2d 680, 685 (6th Cir. 1993). Furthermore, under 20

C.F.R. § 416.1470(b), “if new and material evidence is submitted, the Appeals Council shall

consider the additional evidence only where it relates to the period on or before the date of the

administrative law judge hearing decision.” 

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One of the documents submitted with Plaintiff’s Complaint is a Consultation Request Form

for Midwest Advantage Health Plan dated July 31, 2008. (Docket no. 1 pp. 6 and 40 of 42). The

Request Form notes a diagnosis of “Epiphysitis,” and Plaintiff was referred for two visits for

consultation to “evaluate [and] treat” with a start date of August 8, 2008 and an end date of

September 8, 2008. (Docket no. 1 p. 40 of 42). There is no further information showing the basis

for this diagnosis. The other records include an Outpatient General Consent Form on which the date

is unclear and a General Consent Form for Admission and Treatment dated August 11, 2008. The

consent forms contain no medical information and do not provide evidence of Plaintiff’s conditions

or impairments. (Docket no. 1 pp. 5 and 7 of 42). The remaining records submitted to the Appeals

Council include a record from Metropolitan Orthopaedic Associates, P.C. dated July 28, 2006 for

hip x-rays and noting “fracture care,” and Patient Discharge Instructions from Beaumont Hospital

dated July 21, 2008 which note Plaintiff’s emergency center diagnosis as “traumatic arthritis.” (TR

160-61). There is no other supporting medical evidence of this diagnosis. Plaintiff was prescribed

Naprosyn and directed to follow-up in seven to ten days. (Docket no. 161). The July 21, 2008

Discharge Instruction document is the only record that mentions “arthritis.” 

 The ALJ decision is dated April 22, 2008. The newly submitted evidence was submitted

to the Appeals Council, however, there is no indication that any of this material relates to the period

of time prior to the ALJ’s decision. There is no medical evidence of traumatic arthritis, or any

arthritis, which developed during the period prior to the date of the ALJ’s decision. Furthermore,

Plaintiff makes no showing that this new information is material, nor does she show good cause for

the failure to submit it earlier. An examination of the evidence shows that it is not material. For

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these reasons, the Court will deny Plaintiff’s request to remand this case for consideration of the

documents which were submitted to the Appeals Council and this Court. 

3. Whether The ALJ’s Decision Regarding Plaintiff’s Functional Limitations Is Supported

By Substantial Evidence

The ALJ properly found that Plaintiff does not have an impairment or combination of

impairments that meets or medically equals an impairment in the Listings. 20 C.F.R. § 416.924(d).

The record lacks medical support for Plaintiff’s alleged physical impairments. Although the ALJ

found that Plaintiff has severe mental impairments, there is substantial evidence in the record to

support the ALJ’s finding that the Plaintiff did not have a disability meeting or medically equal to

the Listing. 

The ALJ analyzed whether Plaintiff’s impairment or combination of impairments

functionally equals the Listings. Under Pt. 404, Subpt. P, App. 1, Listing 112.05(D) the ALJ

considered whether Plaintiff had another physical or mental impairment imposing “additional and

significant limitation of function.” 

The ALJ found that Plaintiff although Plaintiff had problems in acquiring and using

information (functional domain no. 1), they were less than marked. (TR 20-21). The ALJ correctly

pointed out that after Plaintiff’s second attempt at the first grade, she was promoted to the second

grade. (TR 73, 85). Plaintiff also attended 25 hours of general education classes per week as

compared to five hours of special education classes. (TR 117-22). There was noted improvement

in progress toward Plaintiff’s IEP goals in special education and she was expected to meet the goals.

(TR 136-37). The ALJ also relied on the December 2005 progress report showing that Plaintiff was

average in science, social studies and mathematics, had problems in English and reading and was

improving in handwriting. (TR 134). 

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The ALJ found that Plaintiff had less than marked limitations in her ability to attend to and

complete tasks (functional domain no. 2). (TR 22). Dr. Bray’s report from August 2005 stated that

Plaintiff “comprehended the tasks, was attentive and able to focus on tasks within normal limits”

and put forth “appropriate effort.” (TR 87-89). The ALJ again noted that Plaintiff was able to

complete her second attempt at the first grade and progress to the second grade. (TR 22, 73, 85).

Plaintiff’s second grade teacher noted that Plaintiff needs “constant help with all independent

activities” and “work does not get completed without help.” (TR 74). Plaintiff’s IEP, however,

showed improvement in Plaintiff’s ability to follow oral directives of more than one step and

read/follow simple/complex directives. (TR 136-37). During the 2006-2007 school year, Plaintiff

went from making limited progress to making moderate progress toward these objectives. 

 The ALJ found that Plaintiff had less than marked limitations in interacting and relating

with others (functional domain no. 3). (TR 23). The ALJ correctly pointed out that Dr. Bray

reported that Plaintiff had average social skills for her age. (TR 87). Despite having problems with

her seven siblings at home including bickering, aggression and competitiveness, one evaluator noted

that Plaintiff was bonded with her siblings and Plaintiff reported having a friend at school with

whom she spends lunch period. (TR 141, 145, 147). As the ALJ pointed out, despite Ms.

Lemmons’s October 2007 report that Plaintiff has “serious” problems following rules and respecting

and/or obeying adults in authority, there is no evidence in the record of punishment or discipline for

such behavior. (TR 23). Ms. Lemmons noted that Plaintiff has no problems expressing anger

appropriately, and only slight problems in playing cooperatively with other children, making and

keeping friends, asking permission and seeking attention appropriately. (TR 76). 

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The ALJ found that Plaintiff has no limitations in moving about and manipulating objects

(functional domain no. 4). (TR 23-24). As set forth above, there is no evidence that Plaintiff has

any limitations in this functional area or any severe physical impairments. Plaintiff reported that she

performs some chores around the house, including hanging up clothes, picking up trash and putting

away shoes and belts. (TR 192). 

The ALJ found that Plaintiff has less than marked limitations in her ability to care for herself

(functional domain no. 5). (TR 24). The ALJ pointed out that Ms. Singleton noted that Plaintiff has

“very serious” problems knowing when to ask for help and “obvious” problems responding to

changes in her mood and “using appropriate coping skills to meet daily demands of school

environment.” (TR 68). Ms. Lemmons noted that Plaintiff has no problems with “[u]sing good

judgment regarding personal safety and dangerous circumstances” and Plaintiff’s mother reported

that Plaintiff eats well and sometimes sleeps well. Although Plaintiff’s mother reported that she lays

Plaintiff’s clothing out for her, there is substantial evidence in the record that Plaintiff is able to

perform self-care tasks. Plaintiff testified that she can wash and get herself ready for school. (TR

193). Both Ms. Singleton and Ms. Lemmons reported that Plaintiff has no problem taking care of

her personal hygiene and caring for her physical needs. (TR 68, 78). 

Finally, the ALJ found that Plaintiff had no limitations in the area of health and physical

well-being (functional domain no. 6). (TR 25). This is consistent with the record as discussed

above. The ALJ’s findings that Plaintiff had less than marked or no limitations in each of the

functional areas is supported by substantial evidence. It is worth noting that the ALJ’s findings are

also consistent with the agency consultants’ evaluation. (TR 105).

VI. CONCLUSION

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The ALJ’s decision to deny benefits is based on substantial evidence in the record. 

Accordingly, Plaintiff’s Motion for Summary Judgment should be denied, that of Defendant granted,

and the instant Complaint dismissed.

REVIEW OF REPORT AND RECOMMENDATION

Either party to this action may object to and seek review of this Report and

Recommendation, but must act within fourteen (14) days of service of a copy hereof as 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. Sec’y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with

specificity will not preserve all objections that a party might have to this Report and

Recommendation. Willis v. Sec’y of Health and Human Servs., 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

Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern District of

Michigan, a copy of any objection must be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

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

Dated: December 18, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

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PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon Tywana

Lewis and Counsel of Record on this date.

Dated: December 18, 2009 s/ Lisa C. Bartlett 

Case Manager

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