Mccummings v. Commissioner of the Social Security Administration
ORDER RULING ON REPORT AND RECOMMENDATION adopting 28 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Timothy M. Cain on 01/10/2014. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Carolyn W. Colvin,1
Acting Commissioner of Social Security
Civil Action No. 5:12-3315-TMC
Plaintiff, Christopher McCummings (“McCummings”), brought this action under 42
U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying his claim for supplemental security income benefits under
the Social Security Act (“SSA”). This matter is before the court for review of the Report and
Recommendation (“Report”) of the United States Magistrate Judge, made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of
social security cases in this district. (ECF No. 13.)2 The Report recommends affirming the
decision of the Commissioner to deny benefits. The court adopts the Report and affirms the
denial of disability insurance benefits.
Carolyn W . Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013.
Pursuant to Federal Rule of Civil Procedure 25(d), Colvin should be substituted for Michael J. Astrue as the
defendant in this action.
The magistrate judge’s recommendation has no presumptive weight, and the responsibility for making a final
determination remains with the United States District Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The
court is charged with making a de novo determination of those portions of the Report to which specific objection is
made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate
judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
McCummings filed an application for supplemental security income benefits on July 17,
2009, alleging a disability onset date of June 14, 2008. His application was denied initially and
on reconsideration. McCummings requested a review by an administrative law judge (“ALJ”),
and on March 28, 2011, an ALJ conducted a hearing on the matter. On June 17, 2011, the ALJ
issued a decision, finding that McCummings was not under a disability as defined in the SSA.
The ALJ found that McCummings suffered from the severe impairments of degenerative
disc disease of the cervical spine, osteoarthritis, degenerative joint disease of the lumbar spine,
borderline intellectual functioning, dependent personality disorder, and a reading disorder. The
ALJ, however, found that McCumming’s impairments did not meet or medically equal the
criteria for any of the listed impairments. The ALJ assessed McCumming’s residual functional
capacity (“RFC”) and determined that McCummings could perform a reduced range of light
work. The ALJ found McCummings did not have any past relevant work. The ALJ concluded
that McCummings could perform jobs in existence in the national economy in significant
numbers and, therefore, was not disabled under the SSA.
The Appeals Council declined to review the ALJ’s decision and McCummings filed this
action for judicial review. In the Report, the magistrate judge sets forth the relevant facts and
legal standards, which are incorporated here by reference. McCummings filed objections to the
Report on November 12, 2013 (ECF No. 31), and the Commissioner filed a reply to those
objections on November 27, 2013 (ECF No. 33). This matter is now ripe for review.
II. Standard of Review
The federal judiciary has a limited role in the administrative scheme established by the
SSA. Section 405(g) of the Act provides, “the 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 . . . as more than a scintilla, but less than a
preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard
precludes a de novo review of the factual circumstances that substitutes the court’s findings for
those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review,
the court may not “undertake to re-weigh conflicting evidence, make credibility determinations,
or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
However, “[f]rom this it does not follow . . . that the findings of the administrative
agency are to be mechanically accepted. The statutorily granted right of review contemplates
more than an uncritical rubber stamping of the administrative agency.” Flack v. Cohen, 413 F.2d
278, 279 (4th Cir. 1969). Rather, “the courts must not abdicate their responsibility to give
careful scrutiny to the whole record to assure that there is a sound foundation for the
[Commissioner’s] findings, and that this conclusion is rational.” Vitek, 438 F.2d at 1157-58.
In his objections, McCummings contends that the magistrate judge erred by finding the
ALJ’s rationale for determining that he does not meet the listing for mental retardation was
supported by substantial evidence.3 Specifically, McCummings contends that he meets the
requirements of Listing 12.05C and the ALJ erred by utilizing the definition of mental
On August 1, 2013, while this appeal was pending, the Social Security Administration amended Listing 12.05 by
replacing the words “mental retardation” with “intellectual disability.” See 78 Fed.Reg. 46,499, 46,501 (to be
codified at 20 C.F.R. pt. 404, subpt. P, app. 1). The change “does not affect the actual medical definition of the
disorder or available programs or service.” Id. at 46,500. Because the amendment does not make any substantive
changes and the parties have used the term “mental retardation” in their memoranda, to avoid confusion, the court
uses the term “mental retardation” in this order.
retardation found in the DSM-IV-R which adds additional requirements, significant limitations
in at least two skill areas.
Listing 12.05 requires a showing of “deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22” (“Prong 1”). Listing 12.05 also
requires the satisfaction of one of four additional requirements identified as
Requirements A-D. . . . (“Prong 2”), as well as “a physical or other mental
impairment imposing an additional and significant work-related limitation of
function” (“Prong 3”).
Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012). Listing 12.05(C) requires “[a] valid
verbal, performance, or full scale IQ of 60–70.” 20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.05C.
At issue in this case is Prong 1 which requires a showing of “deficits in adaptive
functioning initially manifested during the developmental period; i.e., the evidence demonstrates
or supports onset of the impairment before age 22.” Listing 12.05 does not define “adaptive
In fact, the SSA has specifically declined to define mental retardation and
Instead, the regulations provide that “[t]he definition of [mental
retardation] . . . in [the] listings is consistent with, if not identical to, the definitions of [mental
retardation] used by the leading professional organizations.” Technical Revisions to Medical
Criteria for Determinations of Disability, 67 Fed.Reg. 20018–01, at 20022 (April 24, 2002). The
Social Security Administration (“SSA”) explained that, in the United States, each of the four
major professional organizations has its own definition and the Administration does not endorse
one organization over another. Id.
Because “the SSA declined to adopt any one of [these] specific definitions, . . . the
introductory paragraph of Listing 12.05 can be met if the individual is found to have, inter alia,
deficits in adaptive functioning as defined by any of the [leading] professional organizations.”
Lane v. Astrue, 2012 WL 3241102, *4 n.2 (E.D. N.C. 2012)( citing Burden v. Astrue, 586
F.Supp.2d 828, 834 (S.D.Tex. 2008)).
Here, the ALJ used the definition found in The
Diagnostic and Statistical Manual of Mental Disorders, (4th Ed. Text Revision 2000) ( “DSMIV-R”) published by the American Psychiatric Association. (R. 13). “Under the DSM–IV, to be
deemed mentally retarded one must have “significant limitations in adaptive functioning in at
least two of the following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work, leisure,
health, and safety.” Lane, 2012 WL 3241102 *4 (internal citations omitted). Accordingly, the
ALJ did not improperly include additional requirements in assessing whether McCummings met
the Listing 12.05. The court finds the ALJ’s determination that McCummings does not meet
Prong 1 is supported by substantial evidence.
After a thorough review of the record, the court adopts the Report and the
Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
January 10, 2014
Anderson, South Carolina
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