Hightower v. Commissioner of Social Security Administration
Filing
29
ORDER RULING ON REPORT AND RECOMMENDATION adopting as modified 23 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable R. Bryan Harwell on 08/20/2015. (bshr, ). Modified on 8/20/2015 to edit text and to replace document with revised version per the direction of Judge R. Bryan Harwell's Chambers(bshr, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Gwendolyn Hightower,
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.
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Civil Action No.: 1:14-cv-02761-RBH
ORDER
This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Shiva V. Hodges.1 Plaintiff Gwendolyn Hightower
brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying Plaintiff’s claim for disability
insurance benefits and Supplemental Security Income (“SSI”). In her R&R, the Magistrate Judge
recommends affirming the decision of the Commissioner.
FACTUAL FINDINGS AND PROCEDURAL HISTORY
Plaintiff applied for disability insurance benefits and SSI on February 22, 20112, alleging
that she became unable to work on January 22, 2011. The application was denied initially and on
reconsideration. Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). That
hearing was held on January 23, 2013, and Plaintiff appeared and testified. A vocational expert also
testified. The ALJ issued a decision dated February 6, 2013, finding that Plaintiff was not disabled.
The ALJ’s overall findings were as follows:
1
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was
referred to the Magistrate Judge.
2
Plaintiff was previously approved for a closed period of disability from June of 2005 through September 2007.
She filed a second application in July of 2009, alleging an onset date in January of 2008. This Court affirmed the
Commissioner’s unfavorable decision in Hightower v. Comm’r, No. 1:12-2728-RBH, 2014 WL 958045 (D.S.C. Mar.
11, 2015).
1.
The claimant meets the insured status requirements of the
Social Security Act through September 30, 2012.
2.
The claimant has not engaged in substantial gainful activity
since January 22, 2011, the alleged onset date (20 CFR 404.1571 et
seq and 416.971 et seq.).
3.
The claimant has the following severe impairments:
Degenerative
Disc
Disease;
Degenerative
Joint
Disease/Osteoarthritis; Obesity; Mood Disorder; Borderline
Personality Disorder; Borderline Intellectual Functioning; Alcohol
Abuse (20 CFR 404.1520(c) and 416.920(c)).
...
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
...
5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except: she
can only occasionally operate foot controls; she can never climb
ladders, ropes, or scaffolds; she can only occasionally climb ramps or
stairs; she can never kneel, crouch, or crawl; she can only
occasionally balance and stoop; she must avoid exposure to extreme
heat, humidity, hazards, heights, and driving; she is limited to
unskilled work with only occasional public interaction and occasional
interaction with coworkers.
...
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
...
7.
The claimant was born on August 19, 1970 and was 40 years
old, which is defined as a younger individual age 18–44, on the
alleged disability onset date (20 CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564 and 416.964).
2
9.
Transferability of job skills is not material to the
determination of disability because using the Medical-Vocational
Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See
SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 404.569, and 416.969(a))..
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from January 22, 2011, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
Tr. 18–30.
The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review. On July 9, 2014, Plaintiff filed this action
seeking judicial review of the Commissioner’s decision. Compl., ECF No. 1. Both Plaintiff and the
Commissioner filed briefs, ECF Nos. 19 and 21, and the Magistrate Judge issued her Report and
Recommendation (“R&R”) on June 12, 2015, recommending that the Commissioner’s decision be
affirmed, R&R, ECF No. 24. Plaintiff filed timely objections to the R&R on June 29, 2015. Pl.’s
Objs., ECF No. 25, and Defendant replied on July 15, 2015. Def.’s Reply, ECF No. 26.
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the Act is a
limited one. The Act provides that “[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g).
“Substantial evidence has been defined innumerable times as more than a scintilla, but less than
preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). “Substantial evidence”
3
is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citations omitted).
This statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d
1157, 1157-58 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court
“must uphold the factual findings of the [Commissioner] if they are supported by substantial
evidence and were reached through application of the correct legal standard.” Hancock v. Astrue,
667 F.3d 470, 472 (4th Cir. 2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1973) (holding that the Court must uphold the decision supported by substantial evidence “even
should [it] disagree”).
“From this it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted.” Flack v. Cohen, 413 F.2d 278, 279 (4th
Cir. 1969). “[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole
record to assume that there is a sound foundation for the [Commissioner’s] findings, and that his
conclusion is rational.” Vitek, 438 F.2d at 1157-58.
Furthermore, a de novo review is conducted of the Magistrate Judge’s R&R. 28 U.S.C. §
636(b)(1). The R&R is only a recommendation to the Court and has no presumptive weight;
indeed, the responsibility to make a final determination remains with the district court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of
those portions of the R&R to which specific objection is made, and the Court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to
her with instructions. § 636(b)(1).
The right to de novo review, however, may be waived by the failure to file timely objections.
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review
4
when a party makes only “general and conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the
absence of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). In that event, however, the
Court must “ ‘satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DETERMINATION OF DISABILITY
Under the Act, Plaintiff’s eligibility for the benefits she is seeking hinges on whether she is
under a “disability.” 42 U.S.C. § 423(a). The term “disability” is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment 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 . . . .” Id. § 423(d)(1)(A). “The ultimate burden
to prove disability lies on the claimant.” Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985).
A claimant may establish a prima facie case of disability based solely upon medical evidence by
demonstrating that her impairments meet or medically equal the listed impairments set forth in
Appendix 1 of Subpart P. 20 C.F.R. § 404.1520(d).
If such a showing is not possible, a claimant may also establish a prima facie case of
disability by proving that she could not perform her customary occupation as the result of physical
or mental impairments. See Taylor v. Weinberger, 512 F.2d 664 (4th Cir. 1975). Because this
approach is premised on the claimant’s inability to resolve the question solely on medical
considerations, it then becomes necessary to consider the medical evidence in conjunction with
certain “vocational factors.” 20 C.F.R. § 404.1560(b). These factors include the claimant’s (1)
5
“residual functional capacity,” id. § 404.1560; (2) age, id. § 404.1563; (3) education, id. §
404.1564; (4) work experience, id. § 404.1565; and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform, id. § 404.1560.
If the
assessment of the claimant’s residual functional capacity leads to the conclusion that she can no
longer perform her previous work, it must be determined whether the claimant can do some other
type of work, taking into account remaining vocational factors. Id. § 404.1560. The interrelation
between these vocational factors is governed by Appendix 2 of Subpart P. Thus, according to the
sequence of evaluation suggested by 20 C.F.R. § 404.1520, it must be determined: (1) whether the
claimant is currently gainfully employed, (2) whether she suffers from some severe physical or
mental impairment, (3) whether that impairment meets or medically equals the criteria of Appendix
1, (4) whether, if those criteria are not met, the impairment prevents her from returning to her
previous work, and (5) whether the impairment prevents her from performing some other available
work.
ANALYSIS
The Magistrate Judge recommends affirming the decision of the Commissioner.
Specifically, the Magistrate Judge recommends a finding that (1) the ALJ’s decision to discount the
medical opinions of examining psychologist Dr. John Bradley was supported by substantial
evidence and without legal error; and (2) the ALJ’s finding that Plaintiff did not meet Listing
12.05C for an intellectual disability3 was supported by substantial evidence and without legal error,
and the ALJ’s failure to follow the precise requirements of AR 00-1(4) was harmless. The
Magistrate Judge also rejected the plaintiff’s arguments based on the Fifth Edition of the Diagnostic
3
The Social Security Administration substituted the term “intellectual disability” for the term “mental
retardation” in an August 1, 2013 amendment to the regulations. 78 Fed. Reg. 46,499, 46,501 (Aug. 1, 2013). As it did
not affect the regulation substantively, the Court will use the new term. The change in terminology in the regulations
came after the term “mental retardation” in the DSM-IV-TR was changed to “intellectual disability” in DSM-5.
6
and Statistical Manual of Mental Disorders (“DSM-5”). Plaintiff objects to each of the Magistrate
Judge’s recommendations, and the Court addresses Plaintiff’s objections in turn.
I.
The Weighing of Dr. John Bradley’s Medical Opinions
Plaintiff objects to the Magistrate Judge’s recommendation to affirm the decision of the ALJ
to discount the medical opinions of Dr. Bradley, who performed two consultative psychological
examinations of Plaintiff, one on November 26, 2008 (Tr. 358) and the other on June 8, 2009 (Tr.
424).4 Specifically, Plaintiff argues that “the ALJ erroneously gave little weight to the opinion of
Dr. Bradley regarding her mental impairments.” Pl.’s Objs. 1. Plaintiff also asserts that the ALJ
“fails to recognize Hightower’s diagnosis of ‘recurrent’ depression” and that the Magistrate Judge
engaged in post hoc reasoning. Id. In response, the Commissioner argues that the ALJ’s decision
to discount Dr. Bradley’s opinion was supported by substantial evidence and that the Magistrate
Judge did not engage in post hoc rationalization.
The ALJ must evaluate every medical opinion received. 20 C.F.R. §§ 404.1527(c)(1),
416.927(c). Generally, more weight is given to the opinion of an examining medical source than a
non-examining source. 20 C.F.R. §§404.1527(c)(1), 416.927(c)(1). Also, greater weight is usually
given to the opinions of treating sources than non-treating sources, such as consultative examiners.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). While an ALJ is under no obligation to accept any
medical opinion, he must explain the weight given to such opinions. All medical opinions are
evaluated using the same factors, found in 20 C.F.R. §§ 404.1527(c), 416.927(c). See Saunders v.
Colvin, 2014 WL 1057024, No. 5:12-cv-775-D, at *8, note 2 (E.D.N.C March 17, 2014).
The Court must review the ALJ’s decision de novo—in light of the Magistrate Judge’s
recommendation and Plaintiff’s objections. Unless the Commissioner finds that a medical opinion
4
Both examinations were performed before the alleged onset date in this case of January 22, 2011.
7
is both an opinion of a treating source and entitled to controlling weight, the Commissioner must
consider the following non-exclusive list of factors to determine the weight to be afforded a medical
source opinion: (1) examining relationship; (2) treatment relationship (3) supportability; (4)
consistency; (5) specialization; and (6) other factors that support or contradict the opinion. 20
C.F.R. § 404.1527(c). Here, there is no dispute that Dr. Bradley was an examining source, and
Plaintiff does not contend that Dr. Bradley’s opinion is entitled to controlling weight.
In the administrative decision, the ALJ explained the reasons why he gave Dr. Bradley’s
opinions little weight. He referenced Dr. Bradley’s opinion that the claimant meets listing 12.05
(mental retardation) and stated:
In regards to (Dr. Bradley’s) finding that the claimant has mild mental retardation,
the claimant has not demonstrated the deficits in adaptive functioning that would
be expected from someone that is mentally retarded. The claimant has reported
that she completed high school, and she even indicated that she has worked as
a substitute teacher. . . She further testified that she attended college for a short
period and that she has held jobs as a housekeeper and cook. This does not show
the deficits in adaptive functioning consistent with Dr. Bradley’s determination
that the claimant is functioning in the mentally retarded range of intellectual
functioning.
The ALJ also found that the evidence did not support Dr. Bradley’s opinion that the claimant
met listing 12.04 (affective disorders) and discussed the evidence extensively. (Tr. 23) He found
that the Paragraph B criteria of the listings have not been met because the claimant’s mental
limitations do not cause at least two “marked” limitations or one “Marked” limitation and
“repeated” episodes of decompensation, each of extended duration.
He also found that the
Paragraph C criteria were not met. In his RFC analysis, he also engaged in an in depth review of
the evidence and explained that he gave “little weight” to Dr. Bradley’s opinions because they were
given long before the onset date and were “inconsistent with the objective evidence,” as the
“claimant’s condition is well-controlled in her current medication regimen.” (Tr. 28). The ALJ
8
thoroughly applied the pertinent factors in analyzing the opinions of Dr. Bradley. This satisfies the
substantial evidence standard.
Plaintiff also argues that “absent a finding that Hightower’s condition changed significantly
following Dr. Bradley’s assessment, the fact that the opinion was provided prior to the alleged onset
date is not as material as the Magistrate would suggest.” (Pl. Objs. p. 4) Plaintiff cites several cases in
which courts have considered medical evaluations made after a claimant’s insured status has expired,
e.g., Bird v. Comm’r, 699 F.3d 337 (4th Cir. 2012). The Court disagrees. In the case at bar, the plaintiff
received significant treatment for her depression after Dr. Bradley wrote his opinions, and the evidence
supports the finding by the ALJ that her condition had improved.
Plaintiff also argues that the Magistrate Judge engaged in post hoc rationalization in
mentioning that the ALJ in the case at bar was likely aware that the ALJ who issued a decision on
the previous application rejected the opinions. See R&R, p. 27, ECF No. 23. The plaintiff correctly
points out that the Magistrate Judge went beyond what the ALJ stated. The ALJ found that Dr.
Bradley’s opinion “was rendered in the context of Plaintiff’s previous application and ‘given long
before the alleged onset date’”. ((Tr. 28) However, if error, the quoted sentence in the R&R was
harmless, as the ALJ did not commit error in giving less weight to opinions that were rendered
before the relevant period and finding that the plaintiff had improved since those opinions were
rendered. Accordingly, the Court finds the Magistrate Judge recommendation to be proper, and
Plaintiff’s objections are overruled.
II.
Listing 12.05C
Plaintiff contends that the Magistrate Judge’s recommendation is erroneous because the
ALJ’s finding that Hightower did not meet Listing 12.05C is not supported by substantial evidence.
In particular, Plaintiff asserts that “the ALJ was required to consider a prior ALJ’s ruling that
Hightower had deficits in adaptive functioning.” Pl. Objs. p. 5. In response to the objections, the
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Commissioner contends that the ALJ’s assessment of Plaintiff’s mental impairments under Listing
12.05C was without error and supported by substantial evidence. The Commissioner asserts that
“Plaintiff failed to prove that she experienced significantly subaverage intellectual functioning with
deficits in adaptive functioning that manifested before age twenty-two.” Reply to Objections, p. 3
(ECF No. 26, p. 3)
Listing 12.05 provides, in pertinent part:
[I]ntellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age
22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of function; . . .
(emphasis added)
After reviewing the record de novo in light of Plaintiff’s objections, the Court finds the
Magistrate Judge’s recommendation to affirm the ALJ to be proper.
The Commissioner’s
regulations include an extensive list of impairments known as “the Listings” which the agency
considers disabling without the need to assess whether a claimant can perform any work. 20 C.F.R.
part 404, subpart P, Appendix 1. The listed impairments are considered by the agency to be
sufficiently severe to prevent all gainful activity. 20 C.F.R. Section 404.1525. “An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley,
493 U.S. 521, 530 (1990). Plaintiff has the burden to establish that his impairment is disabling at
Step 3. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Aldridge v. Astrue, 880 F.Supp.2d
695, 698 (E.D. N.C. 2012).
10
The Fourth Circuit recently discussed the proper analysis under Listing 12.05C. In Hancock
v. Astrue, 667 F.3d 470 (4th Cir. 2012), the court broke Listing 12.05C down into three prongs and
noted that a claimant “can prevail only if she establishes that the ALJ erred in his analysis of” each
prong of Listing 12.05C. Id. at 475. The three prongs as described by Hancock are (1) “deficits in
adaptive functioning initially manifested during the developmental period, i.e., the evidence
demonstrates or supports onset of the impairment before age 22”; (2) the plaintiff establishes “one
of the four additional requirements identified as Requirements A-D.”; and (3) the plaintiff
establishes “a physical or other mental impairment imposing an additional and significant workrelated limitation of function.” Id. at 473 (emphasis added). Listing 12.05 “does not expressly
define ‘deficits in adaptive functioning’. While the SSA has cautioned against restricting its
definition to one used by professional organizations for diagnostic purposes alone—such as the
definition set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM)—it
nevertheless allows the use of professional organizations to assist the Commissioner in determining
whether the necessary elements of mental retardation have been established under the Regulations.”
Faint v. Colvin, 26 F. Supp. 3d 896, 909 (E.D. Mo. 2014). However, in revising the Listings of
Impairments in 2002, for example, the Commissioner rejected a proposal that the DSM's definition
of mental retardation be used for Listing 12.05. See 67 Fed.Reg. 20,022. Maresh v. Barnhart, 438
F.3d 897, 899 (8th Cir. 2006).
The Social Security Administration’s Program Operations Manual System (POMS) states
that the phrase “adaptive functioning” refers to “the individual’s progress in acquiring mental,
academic, social and personal skills as compared to other unimpaired individuals of his/her same
age.” POMS DI 24515.056(D)(2). “Adaptive activities” are described elsewhere in the Mental
Disorders Listing as “cleaning, shopping, cooking, taking public transportation, paying bills,
11
maintaining a residence, caring appropriately for [one’s] grooming and hygiene, using telephones
and directories, and using a post office.” 20 C.F.R. part 404, subpt. P, Appendix 1, Section
12.00(C)(1). Social functioning and limitations in concentration, persistence, or pace may also
impact determinations. Id., Section 12.00(C)(2)-(3). “Deficits in adaptive functioning can include
limitations in areas such as communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health, and safety.”
Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012), citing Atkins v. Virginia, 536 U.S. 304,
309 n. 3 (2002).
Contrary to Plaintiff’s arguments otherwise, the Magistrate Judge correctly found that
remand is not appropriate based on the ALJ’s alleged failure to consider findings of the previous
ALJ in Plaintiff’s prior claim (ECF No. 23 at 37). In both the current decision and prior decision,
each ALJ decided that Plaintiff failed to prove deficits in adaptive functioning necessary for Listing
12.05C on the same evidentiary basis: Plaintiff’s educational history, her work history, her daily
activities, and her medical history (Tr. 22-23, 123). Because the two findings are consistent, the
ALJ did not run afoul of any preclusion principles by failing to adopt the prior decision’s findings.
Additionally, the prior decision simply states that the evidence “supports a finding of a significant
deficit in her functional academic skills” but that the evidence “does not reveal significant deficits
in any of the other skill areas described in the DSM-IV-R.” (Tr. 123) Plaintiff asserts that the ALJ
in the case at bar erred in failing to discuss this finding, which was made under the old DSM-IV-R
criteria for intellectual disability, and which required deficits in two areas, while the newer DSM-V
only requires a deficit in only one broad area to meet the criteria. The Court disagrees. The plain
language of Listing 12.05 requires a showing of more than one deficit in adaptive functioning by
using the word, “deficits” in adaptive functioning. After the DSM was revised (DSM-V), the
12
wording of the listing was not changed. The Court also notes that, at the time the ALJ issued his
decision in 2013, the DSM had not yet been revised, so the ALJ could not have considered it
anyway.5
The substantial evidence supports the ALJ’s findings. The Plaintiff’s work history was
almost entirely semi-skilled work. “[S]emi-skilled work corresponds to an SVP [Specific
Vocational Preparation] of 3-4”. SSR 00-4p. Courts within this circuit have “repeatedly upheld an
ALJ’s finding that a claimant did not have deficits in adaptive functioning based in part on a past
ability to perform semi-skilled or skilled work.” Weatherford v. Colvin, No. 13-1885-RMG, 2014 WL
3881056, at *10 (D.S.C. Aug. 5, 2014) (citing Weedon v. Astrue, No. 11-2971-DCN-PJG, 2013 WL
1315311, at *7 (D.S.C. Jan. 31, 2013), adopted by 2013 WL 1315206 (D.S.C. Mar. 28, 2013)). See also
Sims v. Colvin, No. 12-3332, 2014 WL 793065, at *11 (D.S.C. Feb. 24, 2014). Plaintiff cites Shaw v.
Astrue, No. 08-132, 2009 WL 2486932 (E.D.N.C. Aug. 13, 2009) in support of her position. However,
Shaw does not address the issue of whether skilled and semi-skilled work is inconsistent with deficits in
adaptive functioning. Moreover, Shaw held only that a claimant’s ability to work in the past “does not
necessarily suggest that the claimant does not satisfy the deficits in adaptive functioning requirement.”
Id. at *6 (emphasis added). Because the ALJ in Shaw did not articulate any other reasonable basis to
find the claimant lacked deficits in adaptive functioning, the Court found remand appropriate. Here, as
the Magistrate Judge explained, the ALJ relied upon Plaintiff’s graduation from high school 6 and daily
activities, in addition to her history of semi-skilled work, to find that Plaintiff did not meet the
requirements for finding deficits in adaptive functioning (ECF No. 23, at p. 28-32).
5
See Aper v. Colvin, No. 3:14-cv-3040-MEF, 2015 WL 4716298 at *8, note 1 (W.D. Ark. August 7, 2015).
Although Plaintiff made inconsistent statements regarding her attendance of special education classes in high
school, the substantial evidence indicated that she received a regular high school diploma (Tr. 98, 256). See R&R, ECF
No. 23, at p. 30, n. 8.
6
13
The ALJ here performed a review of Plaintiff’s work history, regular activities, living and
social situation, educational history, and medical information, and ultimately found that Plaintiff
does not meet Listing 12.05. Accordingly, the Court finds that the ALJ’s decision regarding
Plaintiff’s adaptive functioning was proper in light of the substantial evidence in the record, and no
legal error occurred. See Hancock, 677 F.3d at 475–76. Therefore, the Magistrate Judge’s Report
is adopted as modified.7
CONCLUSION
The Court has thoroughly reviewed the entire record as a whole, including the briefs, the
Magistrate Judge’s R&R, Plaintiff’s objections to the R&R, and applicable law. For the reasons set
forth above and by the Magistrate Judge, the Court hereby overrules Plaintiff’s objections and
adopts and incorporates by reference the R&R of the Magistrate Judge, as modified.
The
Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
August 20, 2015
Florence, South Carolina
7
The Court does not find it necessary in this case to consider the remaining reasons that the Magistrate Judge
finds to support her findings. See R&R, pp. 36-37, ECF No. 23, pp. 36-37.
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