Leflore v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SEAERRA D. LEFLORE, on behalf of S.L. ) Case No. 1:23-cv-01746

(minor child) )

) MAGISTRATE JUDGE

Plaintiff, ) REUBEN J. SHEPERD

)

v. )

)

COMISSIONER OF SOCIAL SECURITY, ) MEMORANDUM OPINION

) AND ORDER

Defendant. )

I. Introduction

Plaintiff, Seaerra D. Leflore (“Leflore”), seeks judicial review of the final decision of the

Commissioner of Social Security denying her application for supplemental security income

(“SSI”) on behalf of her minor child, S.L., under Title XVI of the Social Security Act. Leflore

raises one issue on review of the Administrative Law Judge’s (“ALJ”) decision, arguing that the

ALJ erred in her determination that S.L.’s severe impairment of Attention Deficit/Hyperactivity

Disorder (“ADHD”) did not functionally equal a listing. This matter is before me pursuant to 42

U.S.C. §§ 405(g) and 1383(c)(3). The parties consented to the jurisdiction of the magistrate

judge pursuant to 28 U.S.C. § 636(c)(1). (ECF Docs. 15, 16). I find substantial evidence supports

the ALJ’s decision and because Leflore has failed to identify any error of law in the ALJ’s

evaluation of S.L.’s case, the Commissioner’s final decision is affirmed.

II. Procedural History

Leflore applied for SSI benefits on behalf of her minor child, S.L., on November 20,

2019. (Tr. 64). After an initial hearing on April 19, 2022, the ALJ issued a decision denying

Leflore’s claim for benefits on June 17, 2022. (Tr.18). On July 27, 2023, the Appeals Counsel

denied further review, thereby rendering the ALJ’s decision the final decision of the

Commissioner. (Tr. 5). Leflore timely instituted this action on January 3, 2024 to obtain judicial

review of the Commissioner’s final decision. (ECF Doc. 1).

III. Evidence

A. Personal Evidence

S.L. was born on September 14, 2011. (Tr. 63). Under Social Security regulations, she was

a school-aged child at the time the application was filed and at the time of the ALJ decision. (Tr.

18).

B. Medical and Educational Evidence

The record shows a limited history of medical treatment. On April 10, 2019, S.L.

presented to the emergency department complaining of left eye pain and a “mouth bump.” (Tr.

311). Exam notes indicate that she appeared atraumatic, with no bruising, swelling or crepitus.

(Tr. 312-13). There was a 1 cm fluctuant abscess noted on the lower gum that was treated with

incision and drainage. (Tr. 313). S.L. was then discharged. (Id.).

On August 25, 2019, S.L. presented to the emergency department complaining of left

wrist and head injuries sustained when she was accidentally pushed off of a top bunk by her

sibling. (Tr. 307). S.L. reported landing on her outstretched left wrist and hitting her head on the

ground. (Id.). She reported no loss of consciousness, vomiting or vision changes. She was

experiencing a mild frontal headache. (Id.). An x-ray of her left wrist showed a Salter-Harris II

fracture involving the dorsal distal left radial metaphysis with overlying soft tissue swelling. (Tr.

315).

On August 27, 2019, S.L. received follow up care for her wrist. (Tr. 305-07). Another x-

ray showed there was satisfactory alignment of the fracture. (Tr. 306). She was placed in a long

arm cast with recommended follow-up in two to three weeks to consider placing a short arm cast,

and to determine the need for manipulation due to fracture drift. (Id.).

S.L.’s academic records show that she had performed well in school as a third grader,

which corresponds to the filing of this claim. Her grades as a third grader were generally A’s,

B’s or C’s, although she had one failing grade. (Tr. 270-71). As a fourth grader, S.L.’s grades

dropped precipitously, as she was failing all classes other than physical education. (Tr. 268-69).

Notably, although her attendance was poor as a third grader, with 34 instances of tardiness or

unexcused absence documented, her attendance in fourth grade was abysmal, with a record of

126 unexcused absences. (Tr. 272-75). There is no indication in the records of a success plan, an

“at-risk” plan, a 504 plan, or an Individualized Education Plan (“IEP”). (Tr. 265). The record

notes several disciplinary offenses and actions that took place between October 11, 2019 and

April 11, 2022. (Tr. 280-81).

C. Medical Opinion Evidence

1. State Agency Reviewers

On September 1, 2020, state agency reviewing psychologist Kristen Haskins, Psy.D.,

reviewed the record and opined that S.L. had a “marked” limitation for attending and completing

tasks, a “less than marked” limitation for acquiring and using information, interacting and

relating with others, and caring for yourself. (Tr. 66-67). She had no limitation in moving about

and manipulating objects or in health and physical well-being. (Id.). On February 23, 2021, state

agency psychologist Robyn Murry-Hoffman, Psy.D., adopted the findings of Dr. Haskins. (Tr.

72-74).

2. Consultative Examination Report

S.L. was seen by psychological consultative examiner (“CE”), Bryan Krabbe, Psy.D., on

August 27, 2020 when S.L. was 8 years old. (Tr. 289-94). Leflore reported to the CE that S.L.

was a full-term baby who generally met milestones on an average time frame. (Tr. 290). S.L. is

the fourth of Leflore’s five children, and currently resides with her mother and siblings. (Id.). At

the time of the assessment, S.L.’s father was incarcerated and had no contact with her. (Id.). S.L.

had been in her grandmother’s custody for four years as Leflore addressed her own domestic

violence situation. (Id.). Leflore further reported that S.L. was in the fourth grade, and that she

was receiving special education services and had an IEP.1 (Id.). S.L. generally received poor

grades and had difficulty maintaining focus. (Id.). S.L. was able to get along with her teachers

but tended to stay to herself around her peers. (Id.). She had a history of disciplinary problems in

school, including instances of not listening, being disruptive, playing with friends, and not

participating. (Id.).

Leflore endorsed a history of mental health care for S.L., including counseling services

through school and the Murtis Taylor Center.2 (Id.). S.L. is not prescribed any psychoactive

medication. (Id.). There is a family history of ADHD, including S.L.’s sister. (Tr. 290-91).

Leflore noted that S.L. cannot sit still, gets bored, and that she does not listen. (Tr. 291). Leflore

endorsed further symptoms including carelessness, frequent mistakes, poor attention, and

concentration, not listening, lack of follow through, disorganization, messiness, forgetfulness,

1 No IEP is included within the educational records submitted for this case, nor is there any

supporting evidence that such an IEP exists.

2 No records of mental health treatment have been submitted. Efforts to locate such records

appear to have proven unsuccessful.

frequently losing things, distractibility, fidgeting, impulsivity, tantrums, sensitivity to rejection,

social withdrawal, insomnia, angry outbursts, and restlessness. (Id.).

Although the exam was conducted via telehealth, Dr. Krabbe was able to discern

fidgeting, though S.L. remained seated in her chair. (Id.). She was marginally cooperative, and

rapport was difficult to establish. (Id.). S.L.’s engagement was below average, and she displayed

variable interest in activities. (Id.). Dr. Krabbe noted conversational speed within normal limits

and 100% intelligible articulation. (Id.). Her receptive language skills may have been below

average in that she had difficulty attending to instructions, but that may have been more a

product of emotional factors. (Id.). Her thought processes were clear and logical. (Id.).

S.L. had difficulty following oral instructions during a mental status examination and

required several questions to be repeated. (Tr. 292). As to age-appropriate abilities:

• She was unable to state her age.

• She was unable to state the day of the week.

• She was unable to point to her eyes, ears, and nose.

• She was unable to name several colors of the rainbow.

• She did not know the month that comes after March.

• She was unable to name two types of coins.

• She did not know how many days were in a week.

• She did not know the four seasons.

• She was unable to perform basic addition or subtraction.

• She was unable to perform basic multiplication.

• In terms of immediate memory, she recalled zero digits forward or backward.

• In terms of short-term memory, she was able to recall zero of three words after a

short delay.

• In terms of long-term memory, she was able to describe what she did yesterday.

• In terms of attention and concentration she was unable to count backwards from 20

to 1.

• On a slightly simpler task of attention and concentration, she was unable to recite

the alphabet.

• In terms of abstract reasoning ability, she was asked to describe similarities between

two words and scored in the below average range.

(Id.).

Dr. Krabbe opined that S.L. functions below the normal limits of mental status, although

he noted that “[r]esults should be viewed with some caution as she was marginally engaged. She

appeared to smile and intentionally point to the wrong body parts when asked. Other times, she

seemed to have real difficulty understanding instructions.” (Id.). Dr. Krabbe diagnosed S.L. with

Unspecified ADHD. (Tr. 293).

Dr. Krabbe’s assessment is that S.L. functions in the below average range with regard to

acquiring and using information. (Id.). He further assessed that she did not display effective task

persistence when answering questions and provided variable effort, noting that she had difficulty

understanding the examiner and following instructions. (Id.). As to attending to and completing

tasks, Dr. Krabbe noted that S.L. did not display effective task persistence, and that she provided

variable effort. (Id.). She showed indications of distraction throughout the evaluation. (Id.). He

noted she has regular problems with attention and concentration at school and at home, with

impulsive behavior, easy distractibility and restlessness. (Tr. 293-94). With regard to interacting

and relating with others, Dr. Krabbe noted that S.L.’s symptoms of impulsivity and

inattentiveness may interfere with her ability to get along with others. (Tr. 294). In the domain of

self-care, Dr. Krabbe assessed age-appropriate management of several aspects of self-care, but

also less than age-appropriate ability to regulate her emotions including frequent temper tantrums

and multiple occasions of disciplinary actions at school. (Id.).

D. Hearing Testimony

At the hearing on April 19, 2022, only Leflore offered testimony. (Tr. 31-52). Leflore

testified that S.L. is the fourth oldest of her five children, with all five of the children and Leflore

residing in the home. (Tr. 38). S.L. does not get along with any of her siblings, noting that S.L. is

often “picking with” the other children. (Tr. 39). At times the children’s fights become physical.

(Id.). S.L. has also gotten into trouble, and been injured, while fighting at school. (Tr. 40). S.L.

will sometimes perform her chore of cleaning her room, but there are times when she is on

TikTok and does not want to clean up. (Tr. 41). S.L. will sometimes do her homework,

sometimes not, and she will sometimes lie about having homework. (Id.). Her grades are not

good, and she was held back once in fourth grade and likely will be again this year. (Id.). S.L.

has been in in-house detention three times for “cussing out the teacher and then aggressiveness.”

(Tr. 42).

Leflore testified that S.L. has one friend at school and one friend out of school. (Tr. 43).

When asked about medication for ADHD, Leflore testified she had been reaching out to Murtis

Taylor but due to being switched between case managers she had been unable to secure

medications, and further, due to COVID, she had been unable to schedule an appointment for

S.L. (Tr. 43-44).

Leflore testified that she has tried to teach S.L. certain chores, such as loading clothes

into the washing machine, but S.L. struggled to learn the necessary steps. (Tr. 45-47). Leflore

testified that S.L. is reading at the second-grade level, and that she needs help with TikTok

videos on her phone. (Tr. 47). She has, however, made TikTok videos with her friend. (Tr. 48).

Leflore has to oversee S.L. showering, because if she did not do so, S.L. would only turn on the

water and not get in to clean herself. (Id.). The same is true with regard to brushing her hair or

teeth. (Tr. 48-49). S.L. will not typically engage in conversations with Leflore. (Tr. 49).

Leflore testified that S.L. is attending Mary B. Martin school, and that she would soon be

able to provide an update on an IEP. (Tr. 50).

IV. The ALJ’s Decision

In her July 17, 2022 decision the ALJ made the following findings:

1. The claimant was born on September 14, 2011. Therefore, she was a school-age

child on November 20, 2019, the date application was filed, and is currently a

school-age child (20 CFR 416.926a(g)(2)).

2. The claimant has not engaged in substantial gainful activity since November 19,

2019, the application date (20 CFR 416.924(b) and 416.971 et seq.).

3. The claimant has the following severe impairment: attention deficit hyperactivity

disorder (20 CFR 416.924(c)).

4. The claimant 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 (20 CFR 416.924, 416.925 and 416.926).

5. The claimant does not have an impairment or combination of impairments that

functionally equals the severity of the listings (20 CFR 416.924(d) and 416.926a).

6. The undersigned finds that the claimant has not been disabled, as defined in the

Social Security Act, since November 20, 2019, the date the application was filed

(20 CFR 416.924(a)).

(Tr. 18-25). Based on the foregoing, the ALJ determined that S.L. had not been under a

disability, as defined in the Social Security Act, from November 20, 2019, through the date of

the decision. (Tr. 25).

V. Law & Analysis

A. Standard for Disability

To qualify for SSI benefits, “(a)n individual under the age of 18 shall be considered

disabled . . . 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). To qualify, a child recipient must also meet certain

income and resource limitations. 20 C.F.R. §§ 416.1100, 416.1201.

Social Security regulations prescribe a three-step sequential process to evaluate children’s

disability claims. 20 C.F.R. § 416.924(c). At Step One, a child must not be engaged in

“substantial gainful activity.” 20 C.F.R. § 416.924(b). At Step Two, a child must suffer from a

“severe impairment.” 20 C.F.R. § 416.924(c). At Step Three, disability will be found if a child

has an impairment, or combination of impairments, that meets, medically equals or functionally

equals an impairment listed in 20 C.F.R § 404, Subpt. P, App’x 1. 20 C.F.R. § 416.924(d).

To make the three-step determination that a child “meets” a listing, the child’s

impairment must be substantiated by medical findings shown or described in the listing for that

impairment. 20 C.F.R. § 416.925(d). Alternately, to make a Step Three determination that a child

“medically equals” a listing, the child’s impairment must be substantiated by medical findings at

least equal in severity and duration to those shown or described in the listing for that impairment.

20 C.F.R. § 416.926(a). Finally, to make a step three determination that a child “functionally

equals” a listing, the impairment must be found to be “of listing-level severity,” meaning that it

will “result in ‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in

one domain.” 20 C.F.R. § 416.926a(a). The relevant six domains of functioning to be considered

are: (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 herself/himself;

and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi).

B. Standard of Review

This Court reviews the Commissioner’s final decision to determine if it is supported by

substantial evidence and whether proper legal standards were applied. 42 U.S.C. § 405(g); Rogers

v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). However, the substantial evidence

standard is not a high threshold for sufficiency. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

“It means – and means only – ‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id., quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938). Even if a preponderance of the evidence supports the claimant’s position, the

Commissioner’s decision cannot be overturned “so long as substantial evidence also supports the

conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).

Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-

weigh the evidence. Id. at 476. And “it is not necessary that this court agree with the

Commissioner’s finding,” so long as it meets the substantial evidence standard. Rogers, 486 F.3d

at 241; see also Biestek, 880 F.3d at 783. This is so because the Commissioner enjoys a “zone of

choice” within which to decide cases without court interference. Mullen v. Bowen, 800 F.2d 535,

545 (6th Cir. 1986).

Even if substantial evidence supported the ALJ’s decision, the court will not uphold that

decision when the Commissioner failed to apply proper legal standards, unless the legal error

was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision

. . . will not be upheld [when] the SSA fails to follow its own regulations and that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.

Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review

decisions of administrative agencies for harmless error.”). Furthermore, this Court will not

uphold a decision when the Commissioner’s reasoning does “not build an accurate and logical

bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D.

Ohio 2011). Requiring an accurate and logical bridge ensures that a claimant and the reviewing

court will understand the ALJ’s reasoning, because “[i]f relevant evidence is not mentioned, the

court cannot determine if it was discounted or merely overlooked.” Shrader v. Astrue, No. 11-

13000, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012).

VI. Discussion

A. Plaintiff’s Arguments

Leflore argues that the ALJ erred in her determination that S.L.’s severe impairment of

ADHD did not functionally equal a listing. (ECF Doc. 11, PageID 396). The ALJ determined

that S.L. had a marked limitation in attending and completing tasks, with a less than marked

limitation in acquiring and using information; in interacting and relating to others; and, in the

ability to care for herself. (Id. at PageID 398). Leflore argues that the ALJ failed to properly

consider the CE’s opinion with regard to acquiring and using information. (Id. at PageID 396-

99). Leflore notes the CE found that S.L. functioned in the below average range compared to

typically developing peers and argues that the ALJ focused too heavily on concerns that S.L.

deliberately answered questions incorrectly during the examination. (Id. at PageID 399). Leflore

further argues that the ALJ failed to explain her consideration of supportability and consistency

factors relative to the CE’s opinion and did not provide a logical bridge between the evidence

and the CE’s conclusions. (Id. at PageID 400-01).

B. Substantial Evidence Supports the ALJ’s Determination that S.L. Was Not

Markedly Limited in Her Ability to Acquire and Use Information.

Leflore’s claims that the ALJ erred are limited. There appears to be no dispute as to

whether S.L. has engaged in substantial gainful activity, or whether S.L. suffered from a severe

impairment. The only matter Leflore raises on behalf of her minor daughter relates to the ALJ’s

finding that S.L.’s impairments did not functionally equal the severity of the Listings. (ECF Doc.

11, PageID 396). Leflore notes the ALJ’s finding concerning the six relevant domains, but

challenges only one: that S.L. had less than a marked limitation in acquiring and using

information. (Id. at PageID 398). Because I find that the ALJ’s finding on the single domain in

question was supported by substantial evidence, the ALJ’s final decision is affirmed. As the

finding concerning only one domain was raised by Leflore, the remainder of this analysis will be

limited to its discussion and all other claims will be deemed waived. See Kennedy v. Comm’r of

Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003).

A child’s disability is “functionally equal” to the severity of a disability Listing when she

has a marked limitation in at least two of six domains of functioning, or an extreme limitation in

just one. 20 C.F.R. § 416.926a(a); Elam ex rel. Golay v. Comm’r, 348 F.3d 124, 127 (6th Cir.

2003). A “marked” limitation is “more than moderate” and “interferes seriously with [a child’s]

ability to initiate, sustain or complete activities.” 20 C.F.R § 416.926a(a), e(2).

Here, the ALJ found that S.L. had no extreme limitations and only one marked limitation

– in the ability to attend and complete tasks. (Tr. 20). Because only one marked limitation was

found, the ALJ concluded that S.L.’s impairments did not functionally equal the severity of any

Listing. Leflore argues that S.L. has a marked limitation in two domains: “attending and

completing tasks” and “acquiring and using information.” (ECF Doc. 11, PageID 11-13). The

Commissioner disagrees, arguing that substantial evidence supported the ALJ’s finding that S.L.

had a less than marked limitation in the domain of acquiring and using information. (ECF Doc.

13, PageID 5-11).

The domain of acquiring and using information involves the “the child’s ability to learn

information and to think about and use the information[,]” but the domain considers more than

just assessments of cognitive ability as measured by intelligence tests, academic achievement

instruments, or grades in school.” SSR 09-3p, 2009 WL 396025, 203 (S.S.A.). An ALJs should

consider whether the claimant has poor grades, inconsistent school performance, or special

education services. Id. at *3. The ALJ may also consider the claimant’s school attendance. See

20 C.F.R. § 416.924a(b)(7)(iv-v) (describing special education, accommodations, attendance and

participation considerations for children). For school-age children, examples of relevant criteria

include the ability to learn reading, writing, and simple arithmetic; interest in new subjects and

activities; demonstrating learning by “producing oral and written projects, solving arithmetic

problems taking tests, doing group work, and entering into class discussions[;]” applying

learning in daily activities (like reading street signs, telling the time, and making change); and

using increasingly complex language. See SSR 09-3p, 2009 WL 396025 at *5.

In finding that S.L.’s limitations did not rise to a marked level in the domain of acquiring

and using information, the ALJ engaged in a thorough analysis and evaluation of the CE’s

opinion, including consideration of the factors of supportability and consistency. When

evaluating medical opinion evidence, the ALJ must articulate the consideration given to the

medical opinions in the record, grounded in the two “most important factors” of supportability

and consistency. Id. at §§ 404.1520c(b), 416.920c(b). The ALJ is required only to say enough to

allow this Court to trace the path of the reasoning in the decision. See Stacey v. Comm’r of Soc.

Sec., 451 F. App’x 517, 519 (6th Cir. 2011).

I find the ALJ has done so here. The ALJ specifically wrote that after careful

consideration of the evidence, “the allegations concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the medical evidence and other

evidence in the record.” (Tr. 21). The ALJ referenced indications in the CE’s report that S.L.

“was fidgety upon examination” and “no more than marginally cooperative” and “that rapport

was difficult to establish.” (Id.). The ALJ recognized that the CE felt S.L.’s receptive language

skills possibly fell below average “in that she had difficulty attending to instructions, but her

thought processes were clear and logical.” (Id.). The ALJ also noted that:

The claimant was unable to state her age, the days of the week, point

to her eyes, ears and nose, name the colors of the rainbow, state the

month that comes after March, name two coins, know how many

days are in the week, or name the four seasons of the year. She was

unable to perform basic addition, subtraction or multiplication. In

terms of immediate memory, she recalled zero digits forward and

zero digits backward. In terms of short-term memory, she recalled

zero of three words after a brief delay, and in terms of long memory,

she was able to describe what she did the day prior. In terms of

attention and concentration, she was unable to count backwards

from 20 to 1 or recite the alphabet. Additionally, her abstract

reasoning abilities were below average. Based on these results, the

claimant appeared to function below normal limits of mental status.

(Tr. 22). However, the ALJ further noted that the CE indicated that the results “should be viewed

with some caution as she was marginally engaged. While she seemed to deliberately answer

incorrectly at time, she seemed to have real difficulty understanding the instructions at other

times.” (Id.).

The ALJ looked to S.L.’s school records to assess the supportability and consistency of

the CE’s findings, noting that her grades were all in the passing range in third grade, but one, as

compared to her failing grades in all fourth-grade subjects save physical education. (Tr. 22-23).

The ALJ further referenced S.L.’s attendance records, which showed 34 unexcused absences and

tardy arrivals in the time frame corresponding to third grade, as compared to 126 unexcused

absences during fourth grade. (Tr. 23). The ALJ also noted that S.L.’s school records from her

fourth-grade year reflect that she had no 504 plan or Student Success plan at that time. (Id). The

ALJ also considered the opinions of State agency consultants, Kristin Haskins, Psy.D. and

Robyn Murry-Hoffman, Psy.D., each of whom determined that S.L. had a less than marked

limitation for acquiring and using information and found their opinions to be persuasive as each

was “consistent with and supported by the previously summarized findings.” (Tr. 24).

The ALJ’s evidentiary findings in support of her “less than marked” finding for acquiring

and using information clearly meet the substantial evidence standard. Records showing

reasonable grades while S.L. was in third grade suggest she was capable of performing well in

school. It is also not coincidental that her failing grades would correspond to having 126

unexcused absences during her fourth-grade year. It seems unlikely that any child would excel

with such a record of truancy, and this fact renders the significance of her poor marks in fourth

grade unreliable for purposes of this analysis. Similarly, reasonable questions raised about the

level of engagement displayed by S.L. during the consultative exam are particularly concerning

when compared to her level of performance in the third grade, and the lack of a Student Success

plan or 504 plan. The CE noted that S.L. appeared to smile and intentionally point to the wrong

body parts when asked, creating a reasonable perception that her performance during the exam

did not reflect her full capabilities. Additionally, the CE’s finding that S.L.’s functionality in this

domain was in the “below average range” corresponds with the findings of the State agency

experts who deemed her functioning as “less than marked” and shows that there is consistency

amongst those who opined. Accordingly, it is clear that the ALJ properly considered the

evidence in this case and drew the necessary accurate and logical bridge to her conclusion.

It is possible that the facts involved in this case could lead to differing conclusions

depending on how the evidence is weighed. A focus solely on poor school performance during

S.L.’s fourth grade year, without accounting for the impact of rampant absenteeism, and a

heavier reliance on certain of S.L.’s responses to the CE, could lead to a different outcome. In

such a circumstance, the statutory scheme envisions a “zone of choice” within which the

Commissioner could go either way, without interference by the courts. Blakely v. Comm’r of Soc.

Sec., 581 F.3d 399, 406 (C.A.6 (Ky.), 2009). I conclude that I am not permitted to interfere with

the Commissioner’s final decision, even if alternative outcomes are imaginable. I further find

that the ALJ properly considered the evidence in making her findings, specifically with regard to

the domain of acquiring and using information, and that her findings were supported by

substantial evidence. The ALJ’s decision denying Leflore’s claim on behalf of her minor

daughter, S.L., is thus AFFIRMED.

VI. Conclusion

Because the ALJ applied proper legal standards and reached a decision supported by

substantial evidence, I affirm the Commissioner’s final decision denying Leflore’s claim on

behalf of her minor daughter, S.L.

Dated: May 30, 2024 Eby A J

Reuben. Sheperd

United States Magistrate Judge

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