Lee v. Commissioner of the Social Security Administration

Filing 46

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION: The court ACCEPTS the Magistrate Judge's Report and Recommendation (ECF No. 38), and AFFIRMS the final decision of the Commissioner denying Plaintiffs claim for Supplemental Security Income. Signed by Honorable J Michelle Childs on 8/28/2014. (gnan )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Kimberly Lee, o/b/o K.J.L.,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security Administration,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 5:14-cv-01356-JMC

ORDER AND OPINION

Plaintiff Kimberly Lee (“Plaintiff”), on behalf of her minor daughter, K.J.L., filed this
action pro se seeking judicial review of the final decision of the Commissioner of the Social
Security Administration (the “Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
(ECF No. 1.)
This matter is before the court for review of the Report and Recommendation (the
“Report”) of United States Magistrate Judge Kaymani D. West, issued in accordance with 28
U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(a) D.S.C. (ECF No. 38.) On July 8, 2015,
the Magistrate Judge recommended affirming the Commissioner’s final decision denying
Plaintiff’s claim for Supplemental Security Income (“SSI”). (Id. at 26.) Plaintiff timely filed her
Objection to Magistrate’s Report and Recommendation (the “Objections”), which Objections are
currently before the court. (ECF No. 41.) For the reasons set forth below, the court ACCEPTS
the Report and AFFIRMS the final decision of the Commissioner denying Plaintiff’s claim for
SSI.
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The Magistrate Judge’s Report contains a thorough recitation of the relevant factual and
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procedural background of this matter. (See ECF No. 38 at 2–14.) The court concludes, upon its
own careful review of the record, that the Report’s factual and procedural summation is accurate,
and the court adopts this summary as its own. The court will only reference herein background
pertinent to the analysis of Plaintiff’s claims.
K.J.L. was born on April 3, 2005, and is presently 10 years old. (ECF No. 22-5 at 2.)
Plaintiff filed an application on behalf of K.J.L. for SSI on December 20, 2010, alleging
disability since January 1, 2009, due to attention deficit/hyperactivity disorder (“ADHD”),
sleeping problems, a learning disability, behavioral problems, and weak hand muscles. (Id. at 2;
see also ECF No. 22-6 at 42.) Plaintiff’s application was denied initially on July 30, 2010, and
April 20, 2011, and upon reconsideration on August 29, 2011. (ECF No. 22-4 at 2, 7 & 16.) As
a result, Plaintiff requested an administrative hearing on October 6, 2011. (Id. at 19.) On
December 3, 2012, Plaintiff had a hearing before an Administrative Law Judge (“ALJ”), William
F. Pope, who found on February 1, 2013, that K.J.L. was not under a disability as defined by the
Social Security Act (“SSA”) because she did “have an impairment or combination of
impairments that result in either ‘marked’ limitations in two domains of functioning or ‘extreme’
limitation in one domain of functioning.” (ECF No. 22-2 at 23 & 27.) Thereafter, the Appeals
Council denied Plaintiff’s request for review on March 14, 2014, making the ALJ’s decision the
final decision of the Commissioner for purposes of judicial review. (Id. at 2.)
Subsequently, on April 14, 2014, Plaintiff commenced an action in the United
States District Court for the District of South Carolina pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) to obtain judicial review of the Commissioner’s final decision denying Plaintiff’s
claim on behalf of K.J.L. for SSI. (ECF No. 1.) On July 8, 2015, the Magistrate Judge issued
her recommendation that the Commissioner’s final decision denying Plaintiff’s claims for SSI be

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affirmed. (ECF No. 38.) Plaintiff filed timely Objections to the Magistrate Judge’s Report on
July 22, 2015. (ECF No. 41.) The Commissioner filed a Response to Plaintiff’s Objections to
the Report and Recommendation of the United States Magistrate Judge on July 31, 2015, to
which Plaintiff filed a Reply to Defendants’ Response to Plaintiff’s Objection to the Report and
Recommendation of the United States Magistrate Judge on August 10, 2015. (ECF Nos. 43 &
44.)
II.
A.

LEGAL STANDARD

The Magistrate Judge’s Report
The magistrate judge makes only a recommendation to this court. The recommendation

has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections
are filed, and reviews those portions which are not objected to – including those portions to
which only “general and conclusory” objections have been made – for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
B.

Judicial Review of the Commissioner
The role of the federal judiciary in the administrative scheme established by the Social

Security Act is a limited one.

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 innumerable times

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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. See Vitek v. Finch, 438 F.2d
1157 (4th Cir. 1971). The court must uphold the Commissioner’s decision as long as it is
supported by substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1972). “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). “The
statutorily granted right of review contemplates more than an uncritical rubber stamping of the
administrative agency.” Id. “[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 this conclusion is rational.” Vitek, 438 F.2d at 1157–58.
C.

Children’s Disability Benefits
An individual under the age of 18 will be considered disabled if she has “a medically

determinable physical or mental impairment or combination of impairments that causes marked
and severe functional limitations, and that can be expected to cause death or that has lasted or
can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.906;
see also 42 U.S.C. § 1382c(a)(3)(C)(i). The regulations establish a three-part evaluation process:
(1) determine whether the child is currently engaged in substantial gainful activity. If so, she is
not disabled; if not, (2) determine whether the child has a severe impairment or impairments. If
not, she is not disabled; if so (3) determine whether the child’s impairments meet, medically
equal, or functionally equal any impairment listed at 20 C.F.R. pt. 404, subpt. P, app.1 (the
“Listings”). If not, she is not disabled. See 20 C.F.R. § 416.924(b)-(d). If the claimant’s
impairment or combination of impairments do not meet or medically equal the requirements of

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one of the Listings, the Commissioner will decide whether the impairment or combination of
impairments result in limitations that functionally equal such requirements.

20 C.F.R. §

416.926a(a). To assess functional equivalence, the Commissioner considers how the claimant
functions in activities in terms of 6 domains, broad areas of functioning intended to capture all of
what a child can or cannot do. Id. at § 416.926a(b)(1). These domains 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 oneself, and (6) health and physical
well-being. Id.
III.
A.

ANALYSIS

The Magistrate Judge’s Review
In the Report, the Magistrate Judge directly addressed Plaintiff's specified assertions that

(1) K.J.L.’s impairments should have resulted in a finding of her disability; (2) the ALJ in
making his decision impermissibly relied on non-examining physician reports and did not give
enough weight to the opinions of Mark Solnick, Ph.D., K.J.L.’s teachers, and the South Carolina
Department of Mental Health (“SCDMH”); and (3) the ALJ failed to observe K.J.L.’s behavior
himself and improperly substituted his “own impression of . . . [K.J.L.’s] conduct from
uncontroversial medical evidence of competent physicians.” (See ECF No. 28 at 2–3, 9 & 13.)
In concluding that substantial evidence supported the ALJ’s finding that K.J.L. was not
disabled, the Magistrate Judge provided the following comprehensive analysis:
As required by the regulations, the ALJ considered whether Claimant’s [K.J.L.]
impairments functionally equaled the Listings and found they did not. See 20
C.F.R. § 416.926a. In making that finding, the ALJ considered each of the six
functional domains and concluded that Claimant’s limitations were not “marked”
in two domains or “extreme” in one domain. Tr. 15-23. The ALJ found Claimant
had no limitations in acquiring and using information. Tr. 15-17. In support of
this finding, the ALJ cited to Claimant’s school records, Plaintiff’s hearing
testimony, Dr. Way’s consultative exam, and Dr. Solnick’s test results and found
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“the weight of the evidence is consistent with no limitation, as IQ test scores have
returned normal and the claimant’s mother admits that the claimant has no deficit
now.” Tr. 17. The ALJ specifically referenced Plaintiff’s testimony that “things
were going ‘smoothly’ at school since the claimant was placed on her recent
medications . . . .” Id. The ALJ found Claimant had less than marked limitations
in the domain of attending and completing tasks. Tr. 17-18. In support of this
finding, the ALJ acknowledged reports of Claimant’s problems at school in 2010
with focus, carrying out instructions, completing assignments, working without
disturbing others, and in independently performing activities. Tr. 18 (citing Exs.
9E, 18E). The ALJ also noted that Claimant’s grades in 2010-2011 show only a
few deficits in mathematics, that Claimant successfully participates in her church
choir, and that Plaintiff admitted Claimant’s ADHD medications were providing
considerable benefit. Tr. 18 (citing Ex. 10E). The ALJ further noted Dr. Way’s
assessment that Claimant was able to remain on-task with appropriate
encouragement and Dr. Solnick’s description of Claimant as “very calm” and with
“good focus towards tasks.” Id. (citing Exs. 5F, 13F). The ALJ also noted mental
health treatment records showing improvement in Claimant’s ADHD symptoms
with medications. Id. (citing Ex. 6F). In the domain of interacting and relating
with others, the ALJ found Claimant had less than marked limitations. Tr. 19-20.
The ALJ found that “Dr. Solnick’s characterization of the claimant, the teacher’s
reports at Exhibit 9E, and the claimant’s apparent abilities to participate in group
activities with her peers suggest a less than marked limitation.” Id. In the
domains of moving about and manipulating objects, and caring for herself, the
ALJ also found Claimant had less than marked limitations noting that one school
report suggested Claimant had a “‘serious’ problem with moving parts of her
body, demonstrating strength, coordination, and dexterity, moving and
manipulating things, etc.” yet another report indicated Claimant liked to “practice
her writing, play outside, and work with Play-Doh.” Tr. 21 (citing Exs. 9E, 13E).
The ALJ cited Plaintiff’s testimony that Claimant was benefitting from
occupational therapy, and Dr. Patel’s notes that Claimant had good hand grip,
normal range of motion in all joints, and was able to walk, hop, and run without
difficulty. Id. (citing Ex. 7F). The ALJ noted that while Plaintiff alleged in an
April 2010 function report that Claimant could not dress herself or brush her teeth
without help, school records did not show a problem with Claimant’s ability to
care for herself, a 2010 audiological evaluation was normal, and Dr. Way noted
Claimant was able to make her needs known verbally. Tr. 22 (citing Exs. 2E, 9E,
3F, 5F). In the domain of health and physical well-being the ALJ found Claimant
had no limitations, noting that Plaintiff “offered no allegations that would equate
to a limitation within this domain. She admitted that the claimant had no side
effects from medications, save for sleep issues that are also managed with
medications.” Tr. 23.
(ECF No. 38 at 20–22.)
The Magistrate Judge next addressed Plaintiff’s arguments that K.J.L. would have been
found to be disabled if the ALJ had given more weight to reports from K.J.L.’s teachers,
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providers from the SCDMH, and Dr. Solnick as a treating source. (ECF No. 38 at 22–25
(referencing ECF No. 28 at 9–13).) With specific reference to Dr. Solnick, the Magistrate Judge
determined that Dr. Solnick’s “one-time evaluation of . . . [K.J.L. did] not appear to qualify him
as a treating source1 under the regulations” and “his report does not provide an opinion as to
whether . . . [K.J.L.] has an impairment or combination of impairments that meets or medically
equals the severity of a Listing that would support a finding of disability.” (Id. at 24 (citing ECF
No. 22-8 at 108–113).) The Report’s review of Dr. Solnick ultimately led the Magistrate Judge
to conclude as follows that the treating physician rule was inapplicable to Plaintiff's claims:
The undersigned finds upon a careful inspection of the record that the record does
not, in fact, contain any opinions rendered by Claimant’s treating physicians.
While Claimant’s physicians provided copies of Claimant’s medical records
containing objective medical evidence, they did not offer opinions in those
records; nor did they offer opinions in a separate form on the subjects of the
nature and severity of Claimant’s impairments. Therefore, there were no treating
physician’s opinions for the ALJ to take into consideration, and there was no need
to apply the treating physician rule. The ALJ considered all of the objective
medical evidence provided by Claimant’s medical sources and appropriately
weighed the evidence, along with the opinions of the state agency physicians who
also reviewed the same medical evidence, in concluding that Claimant was not
disabled. The undersigned finds the ALJ was not required to apply the treating

1 The

Treating Physician Rule requires that if the opinions of a treating source are not adopted as
controlling they will be carefully evaluated and contrasted with other medical opinions and
evidence in the record pursuant to the specific standards set forth in 20 C.F.R. § 416.927.
Section 416.927(c) provides that, if a treating source’s opinion is not accorded controlling
weight, the ALJ is required to “consider all of the following factors in deciding the weight we
give to any medical opinion”: (1) examining relationship (“[g]enerally, we give more weight to
the opinion of a source who has examined you than the opinion of a source who has not
examined you”); (2) treatment relationship, including length of treatment relationship, frequency
of examination, and the nature and extent of the treatment relationship; (3) supportability (“[t]he
more a medical source presents relevant evidence to support an opinion… the more weight we
will give that opinion”); (4) consistency; (5) specialization; and (6) other factors. Id. “However,
the Fourth Circuit has not mandated an express discussion of each factor and another court in this
district has held that ‘an express discussion of each factor is not required as long as the ALJ
demonstrates that he applied the . . . factors and provides good reasons for his decision.’” Kirby
v. Colvin, No. 4:13-cv-3138-DCN, 2015 WL 1038036, at *3 (D.S.C. Mar. 10, 2015) (quoting
Hendrix v. Astrue, No. 1:09-cv-1283, 2010 WL 3448624, at *3 (D.S.C. Sept. 1, 2010)); see 20
C.F.R. § 404.927(c)(2) (requiring ALJ to give “good reasons” for weight given to treating
source’s opinion)
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physician rule where the record did not contain any treating physician opinions
and finds the ALJ nevertheless gave thorough consideration to the objective
medical evidence supplied by medical and other sources.
(ECF No. 38 at 24–25.) In addition, the Magistrate Judge expressly described why she found
that the ALJ appropriately considered the evidence offered by Plaintiff’s other sources:
The ALJ stated that he considered all of the relevant evidence in the case record
including “objective medical evidence and other relevant evidence from medical
sources; information from other sources, such as school teachers, . . . and any
other relevant evidence in the case record . . . .” Tr. 14. In analyzing Claimant’s
functionality under the six domains the ALJ cited to Dr. Solnick’s report, medical
records from Santee-Wateree Mental Health Center, reports of Claimant’s
teachers, and Plaintiff’s testimony and determined in each category that the
“weight of the evidence” was consistent with no limitation or with a less than
marked limitation. Tr. 16-23. The ALJ considered the opinions of the state
agency examiners under the six domains and gave the “unrebutted” findings
“considerable weight” in all categories except for the “marked” finding in
Attending and Completing Tasks to which the ALJ attributed “little weight.” Tr.
18.
(ECF No. 38 at 24.) As a result, the Magistrate Judge determined that Plaintiff’s claim regarding
the ALJ’s weighing of the evidence was without merit. (Id. at 25.)
In addressing Plaintiff’s argument that it was improper for the ALJ to not witness
K.J.L.’s behavior in person, the Magistrate Judge observed that “ALJ had ample evidence before
him regarding . . . [K.J.L.’s] impairments without having to see . . . [her] behavior in the
hearing[,]” which evidence included medical evidence, other source evidence, and Plaintiff's
hearing testimony.

(Id. at 25.)

The Magistrate Judge further observed that the ALJ is

“prohibited from substituting his views on medical issues for those of a trained professional.”
(Id. at 25–26.) Moreover, Plaintiff did not demonstrate what relevant information a live
observation of K.J.L. would have provided the ALJ. (Id.)
Based on the foregoing considerations, the Magistrate Judge concluded that the
Commissioner’s decision was supported by substantial evidence and, therefore, recommended
that the court affirm the Commissioner. (Id. at 26.)
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B.

Plaintiff’s Objections and the Commissioner’s Response
Objections to the magistrate judge’s report and recommendation must be specific. See

U.S. v. Schronce, 727 F.2d 91, 94 & n.4 (4th Cir. 1984) (failure to file specific objections
constitutes a waiver of a party’s right to further judicial review, including appellate review, if the
recommendation is accepted by the district judge); see also Camby, 718 F.2d at 199 (in the
absence of specific objections to the report of the magistrate judge, this court is not required to
give any explanation for adopting the recommendation).
In her Objections, Plaintiff first provided the court with her interpretation of the relevant
regulatory standards and case law in addition to background regarding K.J.L. (See ECF No. 41
at 2–14.) Plaintiff next argued that K.J.L.’s medical records establish her disability, which
“should have been granted . . . at the initial application” pursuant to the attending physician’s
rule. (Id. at 14.) As to this issue, Plaintiff further argued that the ALJ erroneously disregarded
and discounted the fact that K.J.L.’s “physician performed psychological testing on claimant and
found her to have ADHD, language delay, and mild intellectual disability, it is well documented
that claimant qualified for and would benefit from special education or IEP classes of which she
is now enrolled in.” (Id. at 15.) Immediately after the aforementioned, Plaintiff then argued that
the ALJ, the Commissioner, and the Magistrate Judge all “failed to consider the combined effects
of . . . [K.J.L.’s] impairments . . . .” (ECF No. 41 at 15.) In this regard, Plaintiff asserted that
K.J.L.’s impairments were different from “children of her same age or in her age bracket” as
indicated by the following behavioral description:
Mrs. Anderson, . . . [K.J.L.’s] teacher stated that she have a slight problem or an
obvious problem in the following areas: paying attention when spoken to directly;
sustaining attention during play/sports activities; focusing long enough to finish
assigned activity or task; refocusing to a task when necessary; carrying out multistep instructions; waiting to take turns; changing from one activity to another
without being disruptive; organizing own things or school materials; completing
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class/homework assignments; completing work accurately without careless
mistakes; working without distracting self or others; and working at reasonable
pace/finishing on time. She stated that these problems occur daily.
Mrs. Anderson also states that . . . [K.J.L.] has a problem with asking permission
appropriately; following rules; respecting/obeying adults in authority/taking turns
in conversations. She states that . . . [K.J.L.] requires individual help. She works
in small groups daily and extra help is needed on learning activities. This would
not be the same with normal children in her age bracket. She has serious
problems, according to Mrs. Anderson moving [her] body from one place to
another, standing, balancing, shifting weight, bending, kneeling, crouching,
walking, running, jumping, and climbing.
(ECF No. 41 at 15–16.)
Because of the foregoing, Plaintiff asserted that the court should strike the Report and
reverse the Commissioner’s decision. (Id. at 18.)
In response to Plaintiff’s Objections, the Commissioner asserts that Plaintiff’s Objections
should be denied because she “essentially argues that the Magistrate Judge erred in not accepting
the arguments made in her initial brief.”

(ECF No. 43 at 1.)

Moreover, because “[t]he

Magistrate Judge properly concluded that the ALJ’s decision was supported by substantial
evidence[,]” the court should adopt the Report. (Id. at 2.)
C.

The Court’s Ruling
Upon review of the Report, the court finds that the Magistrate Judge performed a

thorough analysis of the record. In this regard, the court agrees with the Magistrate Judge that
the ALJ’s decision complies with the regulatory scheme and gives the proper weight, treatment,
and consideration to the evidence in this case. In her Objections, Plaintiff merely rehashes
arguments that were properly considered and rejected by the Magistrate Judge. (Compare ECF
No. 28 at 9–13 and ECF 41 at 14–17.) Therefore, the court overrules Plaintiff’s Objections
because they do not suggest any new arguments that would cause the court to reject the
Magistrate Judge’s analysis and recommendation. Felton v. Colvin, C/A No. 2:12-cv-558, 2014

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WL 315773, at *7 (E.D. Va. Jan. 28, 2014) (“The Court may reject perfunctory or rehashed
objections to R & R’s that amount to ‘a second opportunity to present the arguments already
considered by the Magistrate–Judge.’”) (quoting Gonzalez–Ramos v. Empresas Berrios, Inc.,
360 F. Supp. 2d 373, 376 (D.P.R. 2005)). The court further concludes in agreement with the
Magistrate Judge that substantial evidence supports the decision of the Commissioner that
Plaintiff was not disabled within the meaning of the SSA during the relevant time period.
IV.

CONCLUSION

Upon careful consideration of the entire record, the court AFFIRMS the final decision of
the Commissioner denying Plaintiff’s claim for Supplemental Security Income.

The court

ACCEPTS the Magistrate Judge’s Report and Recommendation (ECF No. 38) and incorporates
it herein by reference.
IT IS SO ORDERED.

United States District Judge

September 28, 2015
Columbia, South Carolina

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