Parks v. Commissioner of the Social Security Administration

Filing 36

ORDER RULING ON REPORT AND RECOMMENDATION adopting 26 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable Bruce Howe Hendricks on 08/20/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
L. Willie Parks,
Plaintiff,
v.
Carolyn W. Colvin,1
Acting Commissioner of Social
Security,

) Civil Action No.: 5:13-868-BHH-KDW
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OPINION AND ORDER
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Defendant.
______________________________
Plaintiff L. Willie Parks brought this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of a final decision of the Defendant, Acting Commissioner of Social Security
(“Commissioner”), denying her claim for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under the Social Security Act. In accordance with
28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(a), D.S.C., this matter was referred
to United States Magistrate Kaymani D. West for pretrial handling. On June 6, 2014, the
Magistrate Judge issued a Report and Recommendation in which she concluded that the
findings of the Administrative Law Judge (“ALJ”) are supported by substantial evidence.
Accordingly, the Magistrate Judge recommended affirming the Commissioner’s decision.
(ECF No. 26.) Plaintiff filed Objections on June 23, 2014. (ECF No. 28.) Commissioner
filed a reply on July 3, 2014. (ECF No. 31.) For the reasons stated below, the Court adopts
the Report and Recommendation and affirms the Commissioner’s decision.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin
should be substituted for Michael J. Astrue as Defendant in this lawsuit.

BACKGROUND
The Report and Recommendation sets forth in detail the relevant facts and
standards of law, and the Court incorporates them by specific reference herein and only
summarizes below in relevant part. Plaintiff was fifty years old on his alleged disability
onset date. (R. at 51, 108.) Plaintiff alleges disability due to diabetes and hypertension.
(R. at 108-09, 110-14, 136.) Plaintiff has past work experience as a cement finisher. (R.
at 19, 116.) Plaintiff filed an application for disability insurance benefits (“DIB”) and
Supplemental Security Income (“SSI”) on September 21, 2010. (R. at 108-09, 110-14,
136.) Plaintiff’s application was denied initially and upon reconsideration. (R. at 70-77, 7986, 89-93.) A hearing before an Administrative Law Judge (“ALJ”) was held on November
18, 2011. (R. at 48-69.) The ALJ found that Plaintiff was not under a disability as defined
by the Social Security Act. (R. at 11-21.) The Appeals Council denied Plaintiff's request
for review (R. at 1-5), making the ALJ’s decision the final decision of the Commissioner.
Plaintiff subsequently filed an action in this Court on April 1, 2014. (ECF No. 1.)
REPORT AND RECOMMENDATION
The Magistrate Judge recommended affirming the ALJ’s decision. (ECF No. 26 at
19.)

The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination of those portions of the Report and
Recommendation 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. 28 U.S.C. § 636(b)(1). “However, the Court is not required

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to review, under a de novo or any other standard, the factual or legal conclusions of the
magistrate judge as to those portions of the report and recommendation to which no
objections are addressed. While the level of scrutiny entailed by the Court’s review of the
Report thus depends on whether or not objections have been filed, in either case the Court
is free, after review, to accept, reject, or modify any of the magistrate judge's findings or
recommendations.” Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137,
138 (D.S.C. 1992) (internal citations omitted).
PARTIES’ RESPONSE
Plaintiff filed objections to the Report and Recommendation (“Objections”) on
January 21, 2014. (ECF No. 28.) Specifically, Plaintiff argues that the Magistrate Judge
wrongly found that substantial evidence supported the ALJ’s conclusion that the plaintiff
could not satisfy the criteria of Listing 12.05(C), 20 C.F.R. pt. 404, Subpart P, App. 1, §
12.05. (ECF No. 28 at 1-2.) The Commissioner filed a reply to Plaintiff’s objections to the
Report and Recommendation asking this Court to affirm the final administrative decision
for the reasons set forth in the Commissioner’s previous submissions to the Court. (ECF
No. 31 at 1.)
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the
Social Security Act is a limited one. Under 42 U.S.C. § 405(g), the court may only review
whether the Commissioner’s decision is supported by substantial evidence and whether
the correct law was applied. See 42 U.S.C. § 405(g) (“The findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be conclusive
. . .”); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir.2006). “Substantial evidence has been

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defined innumerable times as more than a scintilla, but less than preponderance.” Thomas
v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964); see Jackson v. Astrue, 467 F. App'x 214,
216 (4th Cir. 2012). In order for a reviewing court to determine whether the Commissioner
based a decision on substantial evidence, “the decision must include the reasons for the
determination . . . .” Green v. Chater, 64 F.3d 657, 1995 WL 478032, *2 (4th Cir.1995)
(citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir.1986)). The statutorily mandated
standard precludes a de novo review of the factual circumstances that substitutes the
Court’s findings for those of the Commissioner. See, e.g., Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). Accordingly, “the court
[must] uphold the [Commissioner’s] decision even should the court disagree with such
decision as long as it is supported by ‘substantial evidence.’” Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972); see Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.2005).
As noted, in Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), “[f]rom this it does not follow,
however, 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 action.” Id. at 279. “[T]he 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 his conclusion is rational.” Vitek,
438 F.2d at 1157-58.
DISCUSSION
The plaintiff has made one objection to the recommendation of the Magistrate
Judge. He reiterates that the ALJ failed to recognize that medical evidence established
the presence of a disabling mental impairment listed in section 12.05 of Appendix 1 to 20

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C.F.R. § 404, Subpart P. Specifically, the plaintiff believes his condition satisfies the
requirement paragraph (C) of that section.
The “Listings,” found at part 404, subpart P, appendix 1 (part A), are “a catalog of
various disabilities, which are defined by ‘specific medical signs, symptoms, or laboratory
test results.’” Bennett v. Sullivan, 917 F.2d 157, 160 (4th Cir. 1990) (quoting Sullivan v.
Zebley, 493 U.S. 521, 530 (1990)). When a claimant satisfies a Listing by meeting all its
specified medical criteria, he presumably qualifies for benefits. See id. To demonstrate
equivalency, the claimant “must demonstrate that his ‘specific medical signs, symptoms,
or laboratory test results’ equal those for a disability that happens to be listed.” Id.
Section or Listing 12.05 states in relevant part:
12.05 Mental Retardation and Autism: Mental retardation
refers to a significantly subaverage general intellectual
functioning with deficits in adaptive behavior initially manifested
during the developmental period (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 I.Q. of 60 to 69
inclusive and a physical or other mental impairment imposing
additional and significant work-related limitations of function;
...
20 C.F.R. pt. 404, Subpart P, App. 1, § 12.05. The introduction to Section 12.00 of the
Listings clarifies how the structure for 12.05 differs from other mental disorder listings:
“Listing 12.05 contains an introductory paragraph with the diagnostic description for
intellectual disability. It also contains four sets of criteria (paragraphs A through D). If your
impairment satisfies the diagnostic description in the introductory paragraph and any one
of the four sets of criteria, we will find that your impairment meets the listing.” 20 C.F.R.
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Pt. 404, Subpt. P, App. 1 § 12.00(A). In Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir.
2012) the Fourth Circuit held that the first prong of Listing 12.05 analysis “requires a
showing of ‘deficits in adaptive functioning initially manifested during the developmental
period.’” Id. at 473. The second prong “requires the satisfaction of one of four additional
requirements.” Id. The court held that “even if the ALJ’s finding concerning Prong 2 of
Listing 12.05C did not rest on substantial evidence, we would still be required to affirm the
ALJ’s decision if his finding with regard to Prong 1 was based on substantial evidence.” Id.
at 475.
The plaintiff contends that he has deficits in adaptive functioning, as required by the
preamble to the Listing, and contrary to the determination of the ALJ and the affirmation
of the magistrate judge. He again emphasizes his enrollment in a special school serving
severely mentally and physically disabled students (R. at 228) and his functional illiteracy
(R. at 16). Some courts have considered illiteracy to be supportive of a finding of deficits
manifesting in the developmental years. Turner v. Bowen, 856 F.2d 695, 699 (4thCir. l988);
Strong v. Astrue, 2011 WL 2938084 (D.S.C. June 27, 2011) (finding unctional illiteracy
despite eleven years of school is a manifestation of mental retardation before age 22). The
plaintiff has only reiterated the arguments already rejected by the magistrate judge.
More importantly, the plaintiff’s objection appears inconsequential.

The ALJ

determined that the plaintiff had not satisfied any of the A-D requirements of the Listing,
including paragraph C, expressly. (R. at 15.) And, the magistrate judge determined that
substantial evidence existed to support that conclusion. (Report and Recommendation,
ECF No. 26 at 18.)

The plaintiff did not object to the ALJ’s determination regarding

paragraph C. So, even if the plaintiff is correct that the evidence establishes the presence

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of deficits in adaptive functioning, he has not contested, on objection, the determination
that he has failed to meet any of the A-D criteria. The Court has tried to carefully confirm
this consequence, to only one conclusion. It is unnecessary, therefore, to consider any
further the plaintiff’s evidence that he had deficits in adaptive functioning manifesting in the
developmental period. He has not raised any objection to a conclusion that he fails to
meet the paragraphed criteria of the Listing.
CONCLUSION
After a thorough review of the record and facts of the instant case, the Court finds
no error and no cause for remand in this matter. Substantial evidence supports the ALJ’s
decision. The Court concurs in the recommendation of the Magistrate Judge and adopts
the Report and Recommendation and incorporates it herein by specific reference. The
decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
s/Bruce Howe Hendricks
United States District Judge
August 20, 2014
Spartanburg, South Carolina

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