Driver v. Commissioner of Social Security Administration

Filing 33

ORDER RULING ON REPORT AND RECOMMENDATION accepting 22 Report and Recommendation, Signed by Honorable J Michelle Childs on 3/29/14. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Brian J. Driver,

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

Civil Action No. 8:12-cv-03209-JMC
ORDER AND OPINION

This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 22), filed February 17, 2014, regarding Plaintiff Brian
Driver’s (“Plaintiff”) claim for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”). On November 7, 2012, Plaintiff filed the instant action seeking judicial review of
the final decision of the Acting Commissioner of the Social Security Administration (“the Acting
Commissioner”) pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The magistrate judge recommends
that the court affirm the Acting Commissioner’s final decision. (ECF No. 22 at 1).

For the reasons set forth below, the court ACCEPTS the magistrate judge’s Report. The
Acting Commissioner’s final decision is thereby AFFIRMED.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the factual
summation in the magistrate judge’s Report is accurate, and the court adopts this summary as its
own. However, a brief recitation of the background in this case is warranted.
Plaintiff filed an initial application for DIB and SSI on January 25, 2006, regarding a
disability which he alleged began on November 26, 2002. (Tr. 11; see also Tr. 214–18). The

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Acting Commissioner initially denied Plaintiff’s application and denied it again upon
reconsideration. (Tr. 186–90, 194–96). On October 24, 2008, Plaintiff had a hearing before an
ALJ. (See Tr. 62–105). On February 2, 2009, the ALJ found that Plaintiff was not disabled.
(Tr. 164–76). Upon Plaintiff’s request, the Appeals Council vacated the ALJ’s decision and
remanded Plaintiff’s case to the ALJ for further proceedings.1 (Tr. 177–79). Prior to his second
hearing, Plaintiff submitted a second application for SSI on May 19, 2010, alleging a disability
onset date of August 15, 1983. (Tr. 12, see also Tr. 229–35). The Acting Commissioner denied
Plaintiff’s second application initially and upon reconsideration. (Tr. 12).
On January 21, 2011, Plaintiff had a second hearing before the same ALJ which
addressed both of his disability applications. (See Tr. 106–58). On April 26, 2011, the ALJ
issued a second decision finding Plaintiff was not disabled. (Tr. 8–34). As part of his analysis,
the ALJ considered at Step Three whether Plaintiff’s intellectual impairments met or equaled the
listing at 12.05 with respect to mental retardation and found they did not. (Tr. 18, 20, 23–26).
As further discussed below, the only issue before the court is whether the ALJ properly
concluded at the third step that Plaintiff’s mental impairments did not constitute mental
retardation.
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) of the Social
Security Act to obtain judicial review of the final decision of the Acting Commissioner, denying
his claims for DIB and SSI. (ECF No. 1). The magistrate judge reviewed Plaintiff’s case and
provided the Report to the court. (ECF No. 22). In the Report, the magistrate judge found that

The Appeals Council found that the ALJ disregarded Plaintiff’s 1993 IQ test results, relying
instead on tests performed in 1986 and 1989 which evidenced higher scores. (Tr. 178). The
Appeals Council concluded that in light of new IQ test results submitted by Plaintiff’s attorney
that were consistent with Plaintiff’s 1993 scores, a significant question remained as to Plaintiff’s
intellectual functioning. Id. The Appeals Council therefore remanded the case for further
consideration. Id.
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the ALJ conducted a proper analysis at Step Three in determining that Plaintiff’s intellectual
difficulties did not meet or equal the 12.05 listing. Id. at 23–26. For that reason, among others,
the magistrate judge recommended that the court affirm the final decision of the Acting
Commissioner. Id. at 1. Plaintiff filed objections to the Report, (ECF No. 28), to which the
Acting Commissioner replied, (ECF No. 31).
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. 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 is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objections
are made, and the court may accept, reject, or modify, in whole or in part, the magistrate judge’s
recommendation or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
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
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

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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 agency.” 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
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.
DISCUSSION
Plaintiff contends that the ALJ erred at Step Three by not finding Plaintiff met or equaled
the listed impairment for mental retardation, Listing 12.05. (ECF No. 28-1 at 4). Plaintiff argues
that the ALJ’s decision to discount Plaintiff’s later IQ scores, which indicated mental retardation,
and to instead rely upon Plaintiff’s earliest IQ test, for which Plaintiff scored above the mental
retardation range, was not supported by substantial evidence. Id.
Listing 12.05 requires Plaintiff to demonstrate that he possesses “significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested…before
age 22.” 20 C.F.R. Pt. 404, Subpt. P., App’x 1, § 12.05. Under Requirement C of the listing,
Plaintiff must also show 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.” Id. The record in Plaintiff’s case contained five different IQ tests dated
from 1986 until 2010. (See Tr. 25). Plaintiff scored 75 on a WISC-R2 test administered in
November 1986; 73 on a WISC-R from November 1989; 64 on a WISC-III3 given in November
1993; 67 on a WAIS-R4 administered on April 10, 2009; and 63 on a WAIS-IV5 given on

Wechsler Intelligence Scale for Children, Revised Edition.
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Wechsler Intelligence Scale for Children, Third Edition.
4
Wechsler Adult Intelligence Scale, Revised Edition.
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October 26, 2010.6 Id. The ALJ credited Plaintiff’s 1986 score, and consequently found that
Plaintiff did not meet Requirement C of the listing. Id.
The ALJ relied upon the testimony of medical expert Dr. Alfred G. Jonas in deciding to
discount Plaintiff’s later IQ scores. (See Tr. 25–26). Dr. Jonas opined that higher IQs are always
considered correct unless a person has encountered some circumstance that would lower their IQ.
(Tr. 25). Dr. Jonas asserted that no evidence of such a circumstance was present in the record.
(Tr. 26). The ALJ explained there was evidence in the record that Plaintiff may have been
malingering with regard to his mental retardation.

(Tr. 25–26) (citing two consultative

examinations for which Plaintiff scored lower than the acceptable reasonable scores).
Plaintiff objects to the notion that higher IQ scores are almost always valid. (ECF No.
28-1 at 4). Plaintiff also cites several reasons why the ALJ could have found that Plaintiff was
not malingering including a statement from Dr. Brian Keith who conducted Plaintiff’s final IQ
test and who concluded that Plaintiff put forth optimal effort and did not malinger. Id. at 4–5.
“It is not…[the court’s] function to substitute [its] judgment for that of the Secretary if his
decision is supported by substantial evidence.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966). The court finds that the ALJ provided solid reasoning for his decision to rely on
Plaintiff’s first IQ score and the court is satisfied that the ALJ’s determination at Step Three is
supported by substantial evidence in the record. Plaintiff’s objections do not provide a basis
from which the court could conclude otherwise.

Wechsler Adult Intelligence Scale, Fourth Edition.
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While Plaintiff received verbal, performance, and full scale IQ scores for all of his IQ tests, the
court only cites to the lowest score for each test in congruence with the Social Security
regulations. 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00D(6)(c) (“[W]here verbal,
performance, and full scale IQs are provided in the Wechsler series, we use the lowest of these in
conjunction with 12.05.”).
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CONCLUSION
For the foregoing reasons, the court ACCEPTS the magistrate judge’s Report and
Recommendation (ECF No. 22). The court thereby AFFIRMS the Acting Commissioner’s final
decision.
IT IS SO ORDERED.

United States District Court Judge

March 29, 2014
Columbia, South Carolina

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