Report and Recommendation

Cross-Motions for Summary Judgment

1 Zamora v. Comm’r; Case No. 09-13260

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LATOYA ZAMORA, Case No. 09-13260

Parent of Jasmine Zamora,

Gerald E. Rosen

Plaintiff, United States District Judge

vs.

Michael Hluchaniuk

COMMISSIONER OF United States Magistrate Judge

SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

CROSS MOTIONS FOR SUMMARY JUDGMENT (Dkt. 15, 16)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On August 19, 2010, plaintiff, mother of a minor child, filed the instant suit

seeking judicial review of the Commissioner’s unfavorable decision disallowing

benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

72.1(b)(3), District Judge Gerald E. Rosen referred this matter to the undersigned

for the purpose of reviewing the Commissioner’s decision denying plaintiff’s claim

for supplemental security income. (Dkt. 4). This matter is currently before the

Court on cross-motions for summary judgment. (Dkt. 15, 16).
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2 Zamora v. Comm’r; Case No. 09-13260

B. Administrative Proceedings

Plaintiff filed the instant claims on January 5, 2007, on behalf of her minor

child, the claimant, alleging disability beginning on November 1, 2006. (Dkt. 9,

Tr. at 53). The claim was initially disapproved by the Commissioner on April 2,

2007. (Dkt. 9, Tr. at 48-51). Plaintiff requested a hearing and on March 17, 2000,

plaintiff and the claimant, represented by a non-attorney before Administrative

Law Judge (ALJ) Jerome B. Blum, who considered the case de novo. In a decision

by the Appeals Council dated May 26, 2009, the ALJ found that plaintiff was not

disabled. (Dkt. 9, Tr. at 4-17). Plaintiff requested a review of this decision on

May 22, 2009. (Dkt. 9, Tr. at 18-19). The ALJ’s decision became the final

decision of the Commissioner when the Appeals Council, on July 13, 2009, denied

plaintiff’s request for review. (Dkt. 9, Tr. at 1-3); Wilson v. Comm’r of Soc. Sec.,

378 F.3d 541, 543-44 (6th Cir. 2004).

In light of the entire record in this case, I suggest that substantial evidence

supports the Commissioner’s determination that the claimant is not disabled. 

Accordingly, it is RECOMMENDED that plaintiff’s motion for summary

judgment be DENIED, defendant’s motion for summary judgment be GRANTED,

and that the findings of the Commissioner be AFFIRMED.
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II. FACTUAL BACKGROUND

A. ALJ Findings

The claimant was eight years of age at the time of the most recent

administrative hearing. (Dkt. 9, Tr. at 53). At Step I, the ALJ found that the

claimant did not engage in substantial gainful activity at any time relevant to the

ALJ’s decision. (Dkt. 9, Tr. at 10). At Step II, the ALJ found that the claimant had

mood and behavior disorders, which he found to be impairments that caused more

than minimal functional limitations. (Dkt. 9, Tr. 10). At Step III, the ALJ found

that the claimant did not have an impairment or combination of impairments that

met or medically equaled the Listings or that functionally equaled the Listings. 

(Dkt. 9, Tr. 10). In denying plaintiff’s claims, defendant Commissioner considered

mood and behavior impairments as possible bases of disability. (Dkt. 9, Tr. at 10). 

After considering the evidence of record, the ALJ found that the claimant’s

medically determinable impairments could reasonably be expected to produce the

alleged symptoms; however, the ALJ found that the statements concerning the

intensity, persistence and limiting effects of the claimant’s symptoms were not

credible to the extent they are inconsistent with finding that the claimant does not

have an impairment or combination of impairments that functionally equals the

listings. Claimant’s mother argues that the claimant does not get along well with

others and has tried to set the family home on fire. The ALJ concluded, however
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4 Zamora v. Comm’r; Case No. 09-13260

that the evidence of record failed to show that the claimant’s impairments caused

her have marked limitations in any domain.

III. DISCUSSION

A. Standard of Review

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding
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5 Zamora v. Comm’r; Case No. 09-13260

whether substantial evidence supports the ALJ’s decision, “we do not try the case

de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “However, the ALJ is not free to make

credibility determinations based solely upon an ‘intangible or intuitive notion

about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting, Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact are

conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
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6 Zamora v. Comm’r; Case No. 09-13260

Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “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; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec.,

245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either

the ALJ or the reviewing court must discuss every piece of evidence in the
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7 Zamora v. Comm’r; Case No. 09-13260

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed.Appx. 521, 526 (6th Cir. 2006).

B. Legal Standards - Eligibility For SSI Childhood Disability Benefits

A child will be considered disabled if he 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 he engages in substantial

gainful activity.

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

impairment or combination of impairments.

3. A child will be found “disabled” if he 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).
1

 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 initiate, sustain, or complete activities.” 20

C.F.R. § 416.926a(e)(3).

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To determine whether a child’s impairment functionally equals the listings, the

SSA will assess the functional limitations caused by the child’s impairment. 20

C.F.R. § 416.926a(a). 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-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,1

 the impairment

functionally equals the listing and the child will be found disabled. 20 C.F.R. §

416.926a(d).
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C. Analysis and Conclusions

Plaintiff does not appear to object to the ALJ’s conclusion that the

claimant’s impairments did not meet the Listings. Rather, the appeal seems to be

related to the ALJ’s assessment of whether the claimant’s impairments functionally

equaled an impairment in the Listings, based on an assessment of the six domains

found in 20 C.F.R. § 416.926a(a). The claimant has to show that the ALJ’s

decision that she suffered from less than marked limitations in two of the six

domains is unsupported by substantial evidence or that the ALJ’s decision that

plaintiff’s limitations in one of the six domains was not extreme was unsupported

by the substantial evidence. 

1. Acquiring and Using Information

This domain considers how well a child is able to acquire or learn

information, and how well a child uses the information she has learned. 20 C.F.R.

§ 416.926a(g). The regulations provide that a school-age child (i.e., a child age 6

to the attainment of age 12) without an impairment should be able to learn to read,

write, and do math, and discuss history and science. The child will need to use

these skills in academic situations to demonstrate what she has learned by reading

about various subjects and producing oral and written projects, solving

mathematical problems, taking achievement tests, doing group work, and entering

into class discussions. The child will also need to use these skills in daily living
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10 Zamora v. Comm’r; Case No. 09-13260

situations at home and in the community (e.g., reading street signs, telling time,

and making change). The child should be able to use increasingly complex

language (vocabulary and grammar) to share information and ideas with

individuals or groups, by asking questions and expressing her own ideas, and by

understanding and responding to the opinions of others. 20 C.F.R.

§ 416.926a(g)(2)(iv). Social Security regulation 20 C.F.R. § 416.926a(g)(3) sets

forth some examples of limited functioning in this domain that children of different

ages might have. The examples do not apply to a child of a particular age; rather,

they cover a range of ages and developmental periods. In addition, the examples

do not necessarily describe “marked” or “extreme” limitation in the domain. Some

examples of difficulty children could have in acquiring and using information are: 

(i) does not understand words about space, size, or time (e.g., in/under, big/little,

morning/night); (ii) cannot rhyme words or the sounds in words; (iii) has difficulty

recalling important things learned in school yesterday; (iv) has difficulty solving

mathematics questions or computing arithmetic answers; or (v) talks only in short,

simple sentences, and has difficulty explaining what she means.

According to the ALJ, the claimant has less than marked limitation in

acquiring and using information. He noted that the claimant’s mother reported that

the claimant had a 5-minute attention span and that she could not take a simple

phone message but she agreed that the claimant was able to use 4-5 words to
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11 Zamora v. Comm’r; Case No. 09-13260

complete sentences, and while she would mispronounce her words, she was able to

talk about the future. During a March 8, 2007 consultative exam, the claimant’s

mother stated that the claimant had oppositional behaviors. However, the ALJ

noted that she was not in special education classes, had never failed a grade level

and was able to count to 10 and to 100 by 10’s. The claimant’s AIS testing scores

showed Full Scale IQ of 78 and Performance IQ of 72, both of which were

considered borderline, and Verbal IQ of 88, which was low average. The ALJ also

referred to the observations from the local social security office indicated that the

claimant appeared to be a “very intelligent little girl.” Her January 2009 report

card revealed grades for reading, English, spelling and science of F’s and in social

studies and math she received D’s. Her only B was in physical education and a C

for handwriting. The ALJ acknowledged that this report showed that plaintiff had

some difficulties in the domain, it was also important to note that the claimant had

been absent from class frequently. Overall, the ALJ found that the reports in the

file fail to show that she has more consistent difficulties in this area, which would

warrant a more severe finding than “less than marked.”

Inexplicably, the ALJ concluded that the claimant was not receiving special

education. While on January 19, 2007, the mother reported no special education

(Tr. 67), in June, 2007 claimant was approved for special education after a May,

2007 evaluation. (Tr. 111-112). In March, 2008, she was found to be performing
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12 Zamora v. Comm’r; Case No. 09-13260

far below her grade level in all areas except science. (Tr. 113). A May, 2008

evaluation noted that she was in special education. (Tr. 134). The ALJ also

indicated that the claimant had never repeated a grade level. While her mother

reported at the hearing that she was repeating the third grade, there does not appear

to any materials in the record to support that fact. There is evidence that repeating

second grade was recommended at one point and the claimant’s mother noted that

second grade had been repeated on a form dated April 19, 2007. (Tr. 118). 

However, a form dated March 19, 2008 indicates that the claimant never repeated

any grades. (Tr. 113). The ALJ’s failure to note that plaintiff was receiving

special education in 2008 may be a mere oversight because he refers to many of the

records in which such references are made throughout his decision. Moreover, the

March 8, 2007 consultative examination to which the ALJ referred in noting that

the claimant was not in special education does, in fact, make that statement. There

is not sufficient evidence in the record to support any claim that the claimant’s

impairment in this domain was extreme and, even if an assumption could be made

that the claimant’s impairment was marked in this area, as discussed below, the

ALJ’s decisions regarding the five other domains are supported by the substantial

evidence and there is no basis to revisit the decision.
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2. Attending and Completing Tasks

This domain considers how well a child is able to focus and maintain

attention, and how well she is able to begin, carry through, and finish activities,

including the pace at which she performs activities and the ease of changing

activities. 20 C.F.R. § 416.926a(h). The regulations provide that a school-age

child without an impairment should be able to focus her attention in a variety of

situations in order to follow directions, remember and organize school materials,

and complete classroom and homework assignments. The child should be able

to concentrate on details and not make careless mistakes in her work (beyond what

would be expected in other children of the same age who do not have

impairments). The child should be able to change activities or routines without

distraction, and stay on task and in place when appropriate. The child should be

able to sustain attention well enough to participate in group sports, read by herself,

and complete family chores. The child should also be able to complete a transition

task (e.g., be ready for the school bus, change clothes after gym, change

classrooms) without extra reminders and accommodation. 20 C.F.R.

§ 416.926a(h)(2)(iv). Social Security regulation 20 C.F.R. § 416.926a(h)(3) sets

forth some examples of limited functioning in this domain that children of different

ages might have. The examples do not apply to a child of a particular age; rather,

they cover a range of ages and developmental periods. In addition, according to
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the ALJ, the examples do not necessarily describe “marked” or “extreme”

limitation in the domain. Some examples of difficulty children could have in

attending and completing tasks are: (I) easily startled, distracted, or over-reactive

to sounds, sights, movements, or touch; (ii) slow to focus on, or fails to complete,

activities of interest (e.g., games or art projects); (iii) repeatedly becomes

side-tracked from activities or frequently interrupts others; (iv) easily frustrated

and gives up on tasks, including ones she is capable of completing; or (v) requires

extra supervision to remain engaged in an activity.

The ALJ found that the claimant had less than marked limitation in attending

and completing tasks. During the initial application at the Social Security

Administration office, the representative noted that the claimant was very active

and would not sit still. The March 8, 2007 consultative examination revealed that

the claimant had good attention span. The records show a history of making

careless mistakes, but no other serious problems were noted in the schoolteacher’s

questionnaire. (Tr. 151). A school report from May 1, 2007 related that the

claimant had some difficulty with staying on task but it was not highlighted as a

critical issue that plagued her daily, which leaves the impression that this problem

was not significant. (Tr. 70). The ALJ concluded that, while the evidence showed

some difficulties in this domain, the claimant did not have any serious problems in

this area, but because of the mother’s allegations, the benefit of the doubt was
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given and a finding of “less than marked” ascribed by the ALJ. In the view of the

undersigned, the ALJ correctly captured the severity of claimant’s impairments in

this domain and his conclusion that her impairment was less than marked is

supported by the substantial evidence.

3. Interacting and Relating with Others

This domain considers how well a child is able to initiate and sustain

emotional connections with others, develop and use the language of the

community, cooperate with others, comply with rules, respond to criticism, and

respect and take care of the possessions of others. 20 C.F.R. § 416.926a(I). The

regulations provide that a school-age child without an impairment should be

developing more lasting friendships with children who are of the same age. The

child should begin to understand how to work in groups to create projects and

solve problems. The child should have an increasing ability to understand

another’s point of view and to tolerate differences. The child should be well able

to talk to people of all ages, to share ideas, tell stories, and to speak in a manner

that both familiar and unfamiliar listeners readily understand. 20 C.F.R.

§ 416.926a(i)(2)(iv). Social Security regulation 20 C.F.R. § 416.926a(i)(3) sets

forth some examples of limited functioning in this domain that children of different

ages might have. The examples do not apply to a child of a particular age; rather,

they cover a range of ages and developmental periods. In addition, the examples
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do not necessarily describe “marked” or “extreme” limitation in the domain. Some

examples of difficulty that children could have in interacting and relating with

others are: (i) does not reach out to be picked up and held by caregiver; (ii) has no

close friends, or all friends are older or younger than the child; (iii) avoids or

withdraws from people he knows, or is overly anxious or fearful of meeting new

people; (iv) has difficulty playing games or sports with rules; (v) has difficulty

communicating with others (e.g., in using verbal and nonverbal skills to express

herself, in carrying on a conversation, or in asking others for assistance); or (vi)

has difficulty speaking intelligibly or with adequate fluency.

The ALJ concluded that the claimant had less than marked limitation in

interacting and relating with others. The claimant’s mother argues that there were

some difficulties in this domain; she noted in a January 19, 2007 report that the

claimant will on some days get along with her brother and cousin while on other

days she does not. The ALJ concluded that this did not seem to be something that

was out of the ordinary. The mother also reported that the claimant would “ignore

her teachers.” Her mother also reported that the claimant had set a serious house

fire and cut her own hair. According to the ALJ, the claimant’s mother

contradicted her allegation of a house fire at the consultative exam from March 8,

2007 when she stated that the claimant “tried to set the house on fire.” The ALJ

found that the description of the claimant’s inability to get along with others or in a
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socially appropriate way seemed severe but stood in contrast to the school reports. 

For example, during the March 2007 consultative exam, the physician stated that

the claimant was friendly and cooperative with the entire clinical staff. A February

9, 2007 school report shows that the claimant had only “slight” problems in 5/13

areas regarding “interacting and relating to others.” (Tr. 71). The school report

also showed that the claimant interacted well with her peers and had a good rapport

with her teachers. An April 2008 school report also highlighted the fact that the

claimant was “friendly” and loved to draw. The ALJ found that the school reports

were more objective and probative and gave them significant weight. Therefore, a

finding of “less than marked” was found justified by the ALJ. While the

undersigned is not persuaded that there was any real inconsistency regarding the

claimant’s involvement in setting or attempting to set a house fire, the undersigned

concludes that the ALJ’s findings in this domain are supported by the substantial

evidence in the record.

4. Moving About and Manipulating Objects

This domain considers how well a child is able to move her body from one

place to another and how a child moves and manipulates objects. These are called

gross and fine motor skills. 20 C.F.R. § 416.926a(j). The regulations provide that

a school-age child without an impairment should have gross motor skills that let

her move at an efficient pace at school, home, and throughout the neighborhood. 
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The child’s increasing strength and coordination should expand her ability to enjoy

a variety of physical activities, such as running and jumping, and throwing,

kicking, catching, and hitting balls in informal play or organized sports. The

child’s development of fine motor skills should enable her to do things like use

many kitchen and household tools independently, use scissors, and write. 20

C.F.R. § 416.926a(j)(2)(iv). Social Security regulation 20 C.F.R. § 416.926a(j)(3)

sets forth some examples of limited functioning in this domain that children of

different ages might have. The examples do not apply to a child of a particular

age; rather, they cover a range of ages and developmental periods. In addition, the

examples do not necessarily describe “marked” or “extreme” limitation in the

domain. Some examples of difficulty children could have in moving about and

manipulating objects are: (i) difficulty with motor activities (e.g., stumbling,

unintentionally dropping things) because of muscle weakness, joint stiffness, or

sensory loss (e.g., spasticity, hypotonia, neuropathy, or paresthesia); (ii) difficulty

with balance or climbing up and down stairs, or jerky or disorganized locomotion;

(iii) difficulty coordinating gross motor movements (e.g., bending, kneeling,

crawling, running, jumping rope, or riding a bike); (iv) difficulty with sequencing

hand or finger movements; (v) difficulty with fine motor movement (e.g., gripping

or grasping objects); or (vi) poor eye-hand coordination when using a pencil or

scissors. 
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The ALJ found that the claimant has no limitation in moving about and

manipulating objects. The January 5, 2007 field office report stated that the

claimant had no physical difficulties during the application process. The March

2007 consultative examination noted that the claimant had no psychomotor

difficulties and no symptoms of ADHD demonstrated during the exam. There is a

mention by the school gym teacher that the claimant is uncoordinated (Tr. 72) but

that failed to convince the ALJ that there is any type of difficulty in this domain,

therefore a finding of “none” was deemed justified. The undersigned concludes

that the ALJ’s decision is supported by the substantial evidence. Even considering

the gym teacher’s conclusion that the claimant had “obvious problems” with (1)

demonstrating strength, coordination, and dexterity in activities or tasks, (2)

moving and manipulating things, and (3) managing the pace of physical activities

or tasks, this is insufficient to overturn the ALJ’s conclusions and does not support

a marked or extreme limitation.

5. Caring for Yourself

This domain considers how well a child maintains a healthy emotional and

physical state, including how well a child satisfies her physical and emotional

wants and needs in appropriate ways. This includes how the child copes with

stress and changes in the environment and whether the child takes care of her own

health, possessions, and living area. 20 C.F.R. § 416.926a(k). The regulations
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provide that a school-age child without an impairment should be independent in

most day-to-day activities (e.g., dressing and bathing), although she may still need

to be reminded sometimes to do these routinely. The child should begin to

recognize that she is competent in doing some activities but has difficulty doing

others. The child should be able to identify those circumstances when she feels

good about herself and when she feels bad. The child should begin to develop

understanding of what is right and wrong, and what is acceptable and unacceptable

behavior. The child should also begin to demonstrate consistent control over

her behavior, and be able to avoid behaviors that are unsafe or otherwise not good

for her. At this age, the child should begin imitating more of the behavior of adults

she knows. 20 C.F.R. § 416.926a(k)(2)(iv). Social Security regulation 20 C.F.R. §

416.926a(k)(3) sets forth some examples of limited functioning in this domain that

children of different ages might have. The examples do not apply to a child of a

particular age; rather, they cover a range of ages and developmental periods. In

addition, the examples do not necessarily describe “marked” or “extreme”

limitation in the domain. Some examples of difficulty children could have in

caring for themselves are: (i) continues to place non-nutritive or inedible objects in

the mouth; (ii) often uses self-soothing activities that are developmentally

regressive (e.g., thumb-sucking or re-chewing food); (iii) does not dress or bathe

age-appropriately; (iv) engages in self-injurious behavior (e.g., suicidal thoughts or
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actions, self-inflicted injury, or refusal to take medication), or ignores safety rules;

(v) does not spontaneously pursue enjoyable activities or interests; or (vi) has

disturbances in eating or sleeping patterns.

The ALJ found that the claimant had less than marked limitation in the

ability to care for herself. The March 2007 examination showed that the claimant

prepares herself for school and on returning from school, changed her clothing, did

her homework, watched television and played. In an activities questionnaire, the

claimant’s mother stated that the claimant would do her chores, which involved

wiping tables and picking up after herself. Her mother wrote that the claimant was

able to care for her personal needs and had no difficulties doing these things. A

finding of less than marked was warranted in this domain, according to the ALJ. 

While the claimant’s mother also noted, however, that she needed 99% supervision

and never completes her chores, this is not sufficient to overturn the ALJ’s

findings, which the undersigned concludes are supported by substantial evidence. 

(Tr. 66, 117). 

6. Health and Physical Well-Being

This domain considers the cumulative physical effects of physical and

mental impairments and any associated treatments or therapies on a child’s

functioning that were not considered in the evaluation of the child’s ability to move

about and manipulate objects. 20 C.F.R. § 416.929a(i). Social Security regulation
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Cross-Motions for Summary Judgment

22 Zamora v. Comm’r; Case No. 09-13260

20 C.F.R. § 416.926a(i)(3) sets forth some examples of limited functioning in this

domain that children of any age might have; however, the examples do not

necessarily describe marked or extreme limitation in the domain. Some examples

of difficulty children could have involving their health and physical well-being are:

(i) generalized symptoms, such as weakness, dizziness, agitation (e.g., excitability),

lethargy (e.g., fatigue or loss of energy or stamina), or psychomotor retardation

because of any impairment(s); (ii) somatic complaints related to an impairment

(e.g., seizure or convulsive activity, headaches, incontinence, recurrent infections,

allergies, changes in weight or eating habits, stomach discomfort, nausea,

headaches or insomnia); (iii) limitations in physical functioning because of

treatment (e.g., chemotherapy, multiple surgeries, chelation, pulmonary cleansing,

or nebulizer treatments); (iv) exacerbations from an impairment(s) that interfere

with physical functioning; or (v) medical fragility requiring intensive medical care

to maintain level of health and physical well-being.

The ALJ found that the claimant had no limitation in health and physical

well-being. A school report indicated that at times, the claimant would burst into

tears and will report feeling sad but no additional information was given by the

claimant on this issue. During the March 2007 examination, the physician found

that she had no abnormal perceptions, her concentration was good and she had an

appropriate affect. However, her mother reported that she had an angry mood,
Report and Recommendation

Cross-Motions for Summary Judgment

23 Zamora v. Comm’r; Case No. 09-13260

fights, and was cruel to the family cat. Her appetite and sleep were reported as

being normal. The lack of any medical difficulties left the ALJ the impression that

the claimant did not have any serious issues in this domain and a finding of “none”

is justified. Contrary to the ALJ’s conclusion, there were reports in the record that

the claimant had difficulty sleeping and was on medication to help her sleep. 

However, the undersigned concludes that this evidence is not sufficient to warrant

overturning the ALJ’s findings in this domain and this evidence is not sufficient to

support a finding of a marked or extreme limitation.

7. Conclusion

Accordingly, the ALJ concluded that the claimant did not have an

impairment or combination of impairments that results in either “marked”

limitations in two domains of functioning or “extreme” limitation in one domain of

functioning. The claimant was, therefore, according to the ALJ, not disabled, as

defined in the Social Security Act, since January 5, 2007, the date the application

was filed 20 C.F.R. § 416.924(a). The claimant failed to show that the ALJ’s

decision that she suffered from less than marked limitations in two of the six

domains is unsupported by substantial evidence or that the ALJ’s decision that

plaintiff’s limitations in one of the six domains was not extreme was unsupported

by the substantial evidence. Thus, the undersigned recommends that the ALJ’s

decision be affirmed.
Report and Recommendation

Cross-Motions for Summary Judgment

24 Zamora v. Comm’r; Case No. 09-13260

IV. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence

supports the Commissioner’s determination that the claimant is not disabled. 

Accordingly, it is RECOMMENDED that plaintiff’s motion for summary

judgment be DENIED, defendant’s motion for summary judgment be GRANTED,

and that the findings of the Commissioner be AFFIRMED.

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

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). 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. 1981). Filing objections that 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. 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an
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Cross-Motions for Summary Judgment

25 Zamora v. Comm’r; Case No. 09-13260

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: August 10, 2010 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 10, 2010, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Susan K. DeClerq, AUSA and the Commissioner of

Social Security, and I certify that I have mailed by United States Postal Service the

paper to the following non-ECF participant(s): Latoya Zamora, 1371 Seward,

Detroit, MI 48202.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov