Wilkes v. Commissioner of Social Security Administration

Filing 19

ORDER RULING ON 14 REPORT AND RECOMMENDATION The court accepts the Magistrate Judge's Report and Recommendation incorporating it by reference, and affirms the final decision of the Commissioner denying Plaintiff's claim for Disability Insurance Benefits and Supplemental Security Income. Signed by Honorable J Michelle Childs on 09/07/2016. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Mark Anthony Wilkes,

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

Civil Action No. 9:15-cv-00540-JMC

ORDER AND OPINION

Plaintiff Mark Anthony Wilkes (“Plaintiff”) filed this action 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). (ECF No. 1.) This matter is before the court for review of the
Report and Recommendation of United States Magistrate Judge Bristow Marchant, 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. 14).
The Magistrate Judge recommended affirming the Commissioner’s final decision denying
Plaintiff’s claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). (Id. at 29.) Plaintiff timely filed objections to the Magistrate Judge’s recommendation.
(ECF No. 16.) For the reasons set forth below, the court ACCEPTS the recommendation of the
Magistrate Judge and AFFIRMS the Commissioner’s final decision.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
A thorough recitation of the relevant factual and procedural background of this matter is
discussed in the Report and Recommendation. (See ECF No. 14.) The court concludes, upon its
own careful review of the record, that the Magistrate Judge’s factual and procedural summation is
accurate and incorporates it by reference. The court will only reference herein facts pertinent to

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the analysis of Plaintiff’s claims.
Plaintiff was born on March 20, 1969, and is presently 47 years old. (ECF No. 10-5 at 4.)
On May 15, 2012, Plaintiff filed an application for DIB and SSI, alleging a disability onset date of
September 28, 2011, due to vertigo, foot problems, vision problems, hearing problems, and a
learning disability. (Id. at 4, 11; ECF No. 10-3 at 32-33.) Plaintiff’s claim was denied on August
2, 2012 and again on reconsideration on January 28, 2013. (ECF No. 10-4 at 15-18, 149-56.) On
May 6, 2014, Plaintiff had a hearing before an Administrative Law Judge (“ALJ”), who found on
August 7, 2014, that Plaintiff was not disabled under §§ 216(i), 223(d), and 1614(a)(3)(A) of the
Social Security Act. (ECF No. 10-2 at 31, 38.) Thereafter, the Appeals Council denied Plaintiff’s
request for review on August 6, 2013, making the ALJ’s decision the final decision of the
Commissioner for purposes of judicial review. (Id. at 2.)
Subsequently, on February 4, 2014, Plaintiff commenced this action in the United
States District Court for the District of South Carolina pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of the Commissioner’s final decision denying Plaintiff’s claim for DIB and SSI.
(ECF No. 1.) On February 25, 2016, the Magistrate Judge issued his recommendation that the
Commissioner’s final decision denying Plaintiff’s claim for DIB and SSI be affirmed. (ECF No.
14.) In the Report and Recommendation, the Magistrate Judge determined, among other things,
(1) that the ALJ did not erroneously construe or characterize the evidence by finding that Plaintiff’s
non-work activities supported a determination that Plaintiff could work; (2) that the ALJ did not
err in concluding that Plaintiff failed to meet the criteria for disabilities in Listings 12.02 and
12.05; 1 and (3) that substantial evidence supported the ALJ’s finding that Plaintiff’s statements

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20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.02, 12.05.
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concerning the intensity, persistence, and limiting effects of his alleged symptoms were not
entirely credible.
Plaintiff timely filed his objections to the Magistrate Judge’s recommendation on March
14, 2016, listing three objections. (ECF No. 16.) The Commissioner filed a response to Plaintiff’s
objections on March 28, 2016. (ECF No. 17.)
II. LEGAL STANDARD AND ANALYSIS
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).
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

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(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. 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.
A. Construction and characterization of Plaintiff’s activities
Plaintiff first objects that the ALJ and the Magistrate Judge “have applied the wrong
standard as to what constitutes disability for purposes of Social Security.” (ECF No. 16 at 1.) He
argues that the ALJ and the Magistrate Judge incorrectly concluded that “any physical activity by
[Plaintiff] means that [Plaintiff] is exaggerating his condition and that he is not disabled.” (Id.) In
support, he cites to a number of authorities for the proposition that the ability to engage in some
amount of non-work, daily-living activities, without more, does not disprove an alleged inability
to work. See, e.g., Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981) (“[S]poradic or transitory
activity does not disprove disability.”); O’Connor v. Sullivan, 938 F.2d 70 (7th Cir. 1991)
(concluding district court erred by inquiring only whether plaintiff was “so impaired . . . that he
could no longer live on his own” because “[t]he question is not whether one can survive in a
noninstitutional setting . . . but whether one can work”).
As the Magistrate Judge aptly explained, the ALJ rejected Plaintiff’s disability claims in
part because:
his symptoms were not entirely credible because they were inconsistent with
his activities, including holding a valid driver[]’s license, driving, reading and
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writing as evidenced by the Function Report Plaintiff had completed, reading
the Bible, going grocery shopping, going out alone, feeding and watering his
dogs, caring for his personal hygiene without assistance, counting change,
attending church services, walking half a mile, spending time outside with his
children, playing with his children during the day, caring for his ailing
relatives, caring for and feeding chickens, taking his children to the store with
him, acknowledging that he could sweep and vacuum for a couple of hours,
and acknowledging that he could handle the cooking.
(ECF No. 14 at 27). Despite Plaintiff’s objection, an ALJ may rely on evidence regarding a
plaintiff’s routine, non-work activities in rejecting a claim of disability. See Johnson v. Barnhart,
434 F.3d 650, 659 (4th Cir. 2005) (citing Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)).
Moreover, the cases on which Plaintiff relies are readily distinguished from the instant case. Unlike
the plaintiff in Smith v. Califano, Plaintiff’s activities were neither sporadic nor transitory. See
Wright v. Sullivan, 900 F.2d 675, 682 (3d Cir. 1990) (distinguishing Smith v. Califano when a
plaintiff’s ability to work was not sporadic). And unlike the ALJ in O’Connor v. Sullivan, the ALJ
here did not merely inquire whether Plaintiff could survive outside of an institution. Instead, the
ALJ correctly considered Plaintiff’s non-work activities in determining whether his symptoms
were severe enough to prevent his employment. See Dennis v. Sullivan, 787 F. Supp. 89, 92 (E.D.
Pa. 1992) (interpreting and applying O’Connor v. Sullivan); Grindle v. Sullivan, 774 F. Supp.
1501, 1512-13 (N.D. Ill. 1991) (same).
Here, the Magistrate Judge correctly determined that the ALJ did not err by relying on
evidence of Plaintiff’s routine, non-work activities in rejecting Plaintiff’s claims of disability.
Thus, the court overrules Plaintiff’s objection.
B. Determination on validity of Plaintiff’s IQ score
Plaintiff next objects to the Magistrate Judge’s conclusion that the ALJ did not err in
determining that Plaintiff failed to meet the criteria for disability in Listings 12.02 and 12.05.

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Specifically, Plaintiff argues that the ALJ erred by finding that the test on which Plaintiff achieved
an IQ score of 57 was invalid. Listing 12.05 requires that a claimant show:
Intellectual disability: Intellectual 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.
....
B. A valid verbal, performance, or full scale IQ of 59 or less;
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.05. Although Plaintiff scored less than a 59, the ALJ
found that the test was invalid based on evidence in the record that the ALJ believed was
inconsistent with such a low score. See Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012)
(“[A]n ALJ has the discretion to assess the validity of an IQ test result and is not required to accept
it even if it is the only such result in the record.”)
Although Plaintiff objects to the Magistrate Judge’s determination that the ALJ did not err
by finding that the IQ test was invalid, the court declines to consider this objection. To establish
disability under Listing 12.05, an individual must show both (1) “significantly subaverage general
intellectual functioning with deficits in adaptive functioning that initially manifested before age
22,” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.05, and (2) meet the severity requirements in either
subparagraph A, B, C, or D. See Dozier v. Comm’r, 736 F. Supp. 2d 1024, 1035 (D.S.C. 2010)
(noting, despite lack of direction from Fourth Circuit, “circuits that have considered the issue seem
uniformly to find that a claimant must establish both the diagnostic portion of the introductory
paragraph in addition to one of the severity indicators, delineated in subsections A–D”) see also
Randall v. Astrue, 570 F.3d 651, 657-59 (5th Cir. 2009) (collecting cases); Odoms v. Colvin, ___

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F. Supp. 3d ___, No. 1:15-cv-00252-MOC, 2016 WL 3679293, at *5 (W.D.N.C July 11, 2016)
(noting that “Listing 12.05 sets forth a two-part inquiry” including “the diagnostic description of
the impairment” and “the required severity level”); accord Edge v. Astrue, 627 F. Supp. 2d 609,
614 (E.D.N.C. 2008); Justice v. Barnhart, 431 F. Supp. 2d 617, 618 (W.D. Va. 2006) .
Here, Plaintiff’s objection amounts to a challenge to the ALJ’s determination on the second
prong—that he failed to meet the severity requirement of paragraph B. But Plaintiff has failed to
challenge the ALJ’s determination on the first prong—that he failed to meet the deficit-inadaptive-functioning requirement (see EFC No. 10-2 at 27), and he has also failed to object to the
portion of the Report and Recommendation that recommends affirmance of the ALJ’s decision on
this basis (see ECF No. 14 at 21-22; ECF No. 16 at 3-5). The court perceives no clear error in the
Magistrate Judge’s recommendation regarding the ALJ’s assessment of the first prong of
Plaintiff’s claim under Listing 12.05. See Diamond, 416 F.3d at 315 (stating standard). Thus, even
assuming the ALJ and the Magistrate Judge erred in their assessment of the second prong, such
error necessarily would be harmless. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a
claimant to show that his impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how severely, does
not qualify.”); Sawyer v. Colvin, 95 F. Supp. 2d 498, 508 (D.S.C. 2014) (applying harmless error
analysis to ALJ determination and collecting cases). Accordingly, Plaintiff’s objection is
overruled.
C. Determination on Plaintiff’s credibility
Lastly, Plaintiff lists as an objection the Magistrate Judge’s conclusion that there was no
reversible error in the ALJ’s determination that Plaintiff’s testimony was not entirely credible
regarding the extent of his symptoms. Although Plaintiff lists this objection in a heading of the

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document he filed, the body of that filing does not specify which determination he seeks to
challenge and offers no basis for the challenge.
Specific objections are necessary in order to focus the court’s attention on disputed issues.
Thomas v. Arn, 474 U.S. 140, 147-48 (1985). Because general, conclusory objections do not direct
the court’s attention to any specific portions of the report, such objections to a magistrate judge’s
report and recommendation are tantamount to a failure to object. Howard v. Secretary of Health
& Human Servs., 932 F.2d 505, 509 (6th Cir.1991); see also Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir.1982) (ruling that de novo review is not required where objections are general and
conclusory). Because the court perceives no clear error in the Magistrate Judge’s assessment of
the ALJ’s credibility determination, the objection is overruled. See Diamond, 416 F.3d at 315.
III. CONCLUSION
Upon careful consideration of the entire record, the court ACCEPTS the Magistrate
Judge’s Report and Recommendation incorporating it by reference, and AFFIRMS the final
decision of the Commissioner denying Plaintiff’s claim for Disability Insurance Benefits and
Supplemental Security Income.
IT IS SO ORDERED.

United States District Court Judge
September 7, 2016
Columbia, South Carolina

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