J.M. v. Colvin

Filing 28

ORDER: The Court; (1) ACCEPTS the R&R, ECF No. 23; (2) DENIES Plaintiff's Motion for Summary Judgment, ECF No. 12; (3) GRANTS the Defendant's Motion for Summary Judgment, ECF No. 13; and (4) AFFIRMS the final decision of the Defendant. Accordingly, this matter is DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to enter judgment in favor of the Defendant. Copies of this Order sent to all parties as DIRECTED. Signed by District Judge Robert G. Doumar and filed on 2/13/2017. (epri)

FLED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

J.M. by her next friend Jessica Nunley,

CLERK, US D'STfllCT COURT
NO-lFOi.K. VA

Plaintiff,
CIVIL NO. 2:15CV475

V.

NANCY A. BERRYHILL,

Acting Commissioner,
Social Security Administration,
Defendant.

ORDER

This matter comes before ihe Courl by Jessica Nunley's {"Plaintiff) Objection, EOF No.

26, on belialf of her minor daughter, J.M.. to Magistrate Judge Lawrence R. Leonard's Report
and Recommendation ("R&R"), ECF No. 23. For the reasons stated herein, the Court: (1)
ACCEPTS the R«S:R. ECF No. 23; (2) DENIES Plaintiffs Motion for Summary Judgment, ECF

No. 12; (3) GRANTS the Acting Commissioner of ihe Social Security Administration's

("Defendant")' Motion for Summary Judgment, ECF No. 13; and (4) AFFIRMS the final
decision of the Defendant. Accordingly, this matter is DISMISSED WITH PREJUDICE.
I.

PROCEDURAL BACKGROUND

On May 23, 2012, Ms. Nunley initially filed J.M.'s application for Disability Insurance
Benefits ("DIB"'), alleging disability due to developmental delay, expressive language disorder,

and pica with an onset date of August 1, 2009. R. 156-57.^ Her application was initially denied
' This case was originally filed against Carolyn W. Colvin, the clien-Acting Commissioner of Social Security. Nancy
A. Berryhill is now the Acting Commissioner and, accordingly, has been substituted as the defendant in this suit

pursuant to Ted. R. Civ. P. 25(d) ("The officer's succcssor is automatically substituted as a party."). See also 42
U.S.C. § '105(g) {"Any action instituted in accordance with this subsection shall survive notwithstanding any change

in the person occupying the office of Commissioner of Social Security or any vacancy in such office.")
• "R." refers to the certified administrative record that was filed under seal on December 30, 2015, pursuant to Local
1

on November 9,2012, id at 90-94, and again denied upon reconsideration on July 2,2013, id at

97-105. Ms. Nunley then requested a hearing in front of an administrative law judge ("ALJ"),
which was conducted on March 26, 2014. Id at 38-66. The ALJ, Judge Alfred J. Costanzo,

issued a decision denying Ms. Nunley's DIB application for J.M. on May 5, 2014. Id at 10-30.
In the decision, the ALJ concluded that J.M. has not been disabled, as defined in the Social

Security Act, since May 23,2012, the date the application was filed. R. 27. On May 5,2014, Ms.

Nunley filed a request with the Appeals Council to reconsider Judge Costanzo's decision. Id at
1. On August 28, 2015, the Appeals Council denied Ms. Nunley's request for review because the
ALJ's decision was supported by substantial evidence and Plaintiffs claims did not warrant
review, making the ALJ's decision the Commissioner's final decision. Id at 1-6.

Having exhausted her administrative remedies, Ms. Nunley filed the instant complaint for

judicial review, pursuant to 42 U.S.C. § 405(g), of the Acting Commissioner's decision on
October 29, 2015. ECF No. 3. The Acting Commissioner filed an Answer on December 30,
2015. ECF No. 8.

On January 6,2016, pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to U.S.

Magistrate Judge Lawrence R. Leonard. ECF No. 10. Ms. Nunley filed her Motion for Summary
Judgment on February 11, 2016, ECF No. 12, and the Acting Commissioner filed a Cross-

Motion for Summary Judgment and a Memorandum in Support on March 11, 2016, ECF Nos. 13
and 14. On May 6, 2016, Ms. Nunley filed a reply brief in support of her own motion for
summary judgment and in opposition to the Acting Commissioner's motion. ECF No. 19.
On December 22, 2016, Magistrate Judge Leonard issued his R&R, which recommended
that the Court deny Ms. Nunley's Motion for Summary Judgment, grant the Defendant's Motion
for Summary Judgment, and affirm the Acting Commissioner's final decision. ECF No. 23. On
Civil Rules 5(B) and 7(C)(1).

January 13, 2017, Ms. Nunley filed a Motion for Extension of Time, ECF No. 24, requesting an
extension of time to submit written objections to the R&R. ECF No. 23. On January 17, 2017,
the Court granted the Motion and ordered that Ms. Nunley file any written objections by January

24, 2017.^ ECF No. 25. On January 23, 2016, Ms. Nunley timely filed and served on Defendant
her Objection. ECF No. 26. Defendant did not timely file a Response."* ECF No. 27.
II.

FACTUAL BACKGROUND
A.

J.M.'s Background

In her application, Ms. Nunley alleged J.M.'s disability onset date was August 1, 2009. R.
156-57. J.M. was in kindergarten at the time of filing and had undergone occupational and
speech therapy for her developmental delay, expressive language disorder, and pica. Id at 157,
159. At the administrative hearing on March 26, 2014, Ms. Nunley was the sole witness, id at
39, where she provided the following testimony:

Ms. Nunley testified that J.M. was in the first grade and lived with her in an apartment.
Id. at 42-44. J.M. has a sister in kindergarten who does not live with them and Ms. Nunley has

never been married and does not receive child support. Id at 43. J.M. had an academic
Individualized Education Program ("lEP") to help with her difficulties in writing, science, math,

' In the Report and Recommendation, Judge Leonard notes that, by receiving a copy of the Report and
Recommendation, the parties were notified that either party would be able to serve on the other and file with the
Clerk of the Court "specific written objections to the above findings and recommendations within fourteen days
from the date this Report and Recommendation [was] mailed to the objecting party, see 28 U.S.C. § 636(b)(1)(C)
and Federal Rule of Civil Procedure 72(b), computed pursuant to Federal Rule of Civil Procedure Rule 6(a) plus
three days permitted by Federal Rule of Civil Procedure 6(d)." Id. at 20. The receiving party would then have
fourteen days to respond to the written objections. Id. Finally, the Report and Recommendation noted that "[t]he
parties are further notified that failure to file timely specific written objections to the above findings and
recommendation [would] result in a waiver of the right to appeal from a judgment of this Court based on such
findings and recommendations." Id.
The Report and Recommendation was mailed to Plaintiff on December 23, 2016. ECF No. 23. This means

that the seventeen day period—fourteen days per Federal Rule of Civil Procedure 72(b), with three extra days
permitted by Federal Rule of Civil Procedure 6(d) for receipt by mail—for Plaintiff to file any objections expired on
January 9, 2017.

•* Defendant had fourteen days, perJudge Leonard's R&R, to respond to the written objection. Defendant filed the
response on February 7, 2017, fifteen days after service of Plaintiffs objection. ECF No. 27.

and reading comprehension.

at 45-46. Ms. Nunley said J.M. received mostly Ds and Cs in

school, and that J.M.'s school would allow her to decide whether her daughter would repeat the

first grade. Id In addition, J.M. had good attendance at school and did not have any behavior
problems. Id at 45, 47. She had friends in school and in her neighborhood, and she also
participated in Girl Scouts, which she enjoyed. Id. at 47.

Moreover, Ms. Nunley testified J.M.'s biggest difficulty was handling her frustration. Id.
at 48-50. She also said J.M. has an expressive speech disorder that inhibits her from answering
open-ended questions, retelling stories, and being understood by people not familiar with her. Id
at 51-52. Ms. Nunley stated J.M. does not take any medication and has not experienced any
health problems related to her sickle cell. Id at 52-54. J.M. received occupational and speech
therapy in school and additional speech therapy once a week outside of school. Id at 57. J.M. did
not suffer from any physical problems and can run, walk, feed herself, cut with scissors, bathe,
and dress herself. Id at 57-59. J.M. experienced some incontinence problems while at school,
but her lEP allowed her to use the bathroom whenever she needed. Id. at 61.

According to J.M.'s school records, an lEP from May 31, 2012, revealed that she had
mastered 50% of her lEP goals, could speak in complete sentences, identify colors, letters, and
numbers up to ten, recognize family members, and follow the classroom routine. Id at 192-93.
The IE? stated she had difficulty following multiple step directions and "answering yes/no and
"wh[-]" questions on a consistent basis." Id at 193. Additionally, the IE? provided J.M.'s

"overall language skills have improved," but that she "continues to have receptive and expressive
language delays in the areas of vocabulary, responding to question, sentence structure, and

sequencing skills" and "also delays in the area of pragmatic language skills." Id at 194.
However, J.M. does not have difficulty with her social/emotional functioning, motor and/or daily

living skills, work habits/ work adjustment skills, home/independent living, or community
participation. Id Ultimately, the lEP concluded J.M. has a sensory integration disorder and that

she would be placed in an inclusion kindergarten classroom and receive 600 minutes of Specially
Designated Instruction and sixty minutes of speech therapy every week. Id. at 195.
J.M.'s special education teacher and her kindergarten teacher completed a teacher
questionnaire on April 9, 2013. Id. at 182-89. They noted that in the category of acquiring and

using information, she had serious problems in eight of the ten indicators and obvious problems
in the other two. Id at 183. In the category of attending and completing tasks, J.M. had serious
problems in seven of the thirteen indicators, obvious problems in two, slight problems in two,
and no problems in two. Id at 184. Further, in the category of interacting and relating with

others, J.M. demonstrated obvious problems in four of the thirteen indicators, slight problems in
one, and no problems in the remaining seven. Id at 185. The teachers indicated that they could
understand almost all of J.M.'s speech "after repetition and/or rephrasing." Id at 186. In the
category of moving about and manipulating objects, they noted J.M. had obvious problems in

three of the seven categories, slight problems in two of them, and no problems in the other two.
Id. The teachers wrote that J.M. "usually manages well, but seems to fall/trip more than average"

and that she receives occupational therapy for handwriting and cutting. Id In the category of
caring for herself, the teachers said J.M. presented serious problems in four of the ten indicators,
obvious problems in two, slight problems in one, and no problems in three. Id at 187. In the
section for medical conditions, the teachers wrote that J.M. has pica, eczema, and sickle cell

anemia but they have "not impacted function in the classroom." Id. at 188.
On January 14, 2014, J.M. underwent an lEP classification assessment. Id at 206. She

was in the 37th percentile for nonverbal cognitive ability, the 82nd percentile for academic skills.

the 77th percentile for brief reading skills, the 65th percentile for math calculation skills, and the

70th percentile for brief writing skills. Id Overall, her scores were considered in the "range from
high average to above average." Id. The lEP report stated J.M. had a "supportive home
environment," but that she "demonstrates severe language difficulties which limit her
communication" and "shows characteristics of Autism." Id at 207.

J.M.'s first grade teacher completed a teacher questionnaire on February 7, 2014. Id at
216-27. The teacher wrote that J.M. was on grade level for reading, but below grade level for

math and writing. Id at 216. The teacher noted that in the category of acquiring and using
information, J.M. had very serious problems in three of the ten indicators, serious problems in
five of them, and slight problems in two. Id at 217. In the category of attending and completing
tasks, J.M. had very serious problems in six of the thirteen indicators, serious problems in one,
obvious problems in three, and slight problems in three. Id at 218. In the category of interacting
and relating with others, J.M. demonstrated serious problems in four of the thirteen indicators,

obvious problems in three, and slight problems in six. Id at 219. J.M.'s teacher said she could not
understand more than half of J.M.'s speech after repetition and/or rephrasing. Id at 220. In the
category of moving about and manipulating objects, she noted J.M. had obvious problems in two

of the seven categories and slight problems in five of them. Id In the category of caring for

herself, J.M.'s teacher said J.M. presented serious problems in six of the ten indicators, obvious
problems in one, and slight problems in three. Id at 221. In the final section for medical
conditions, J.M.'s teacher noted J.M. "experienced incontinence throughout the first semester of

school, but has not had any problems lately." Id at 222.
J.M.'s update to her lEP placement on February 27, 2014, stated that she is "using a

functional pencil grasp when writing" and "has made good progress with letter and number

formation." Id at 235. J.M. "is able to produce legible work with [minimal] verbal cues for
spacing and line orientation," but she "often requires moderate redirection throughout a treatment
session to remain focused on the task and this affects her written work." Id. An instructional

testing accommodation from the same date explained that J.M. "requires the use of a study carrel
during testing to reduce stimuli and distractibility" and that she receives tests in a small group
and is allowed to take "reasonable breaks ... to minimize fatigue." Id at 236. An lEP Team

Meeting Summary on March 11, 2014, stated that J.M. was "on grade level and does not require
goals and objectives in academic areas," but that she would receive sixty minutes per week of
speech services and 120 minutes of occupational therapy services. Id at 237.
Furthermore, J.M.'s medical records date back to June 28, 2012, when she underwent an

occupational therapy evaluation that showed she "performed below age level across all testing"
and that "[djefinite issues were noted with (1) sensory processing ... (2) sensory modulation ...

and (3) behavior and emotional responses." Id at 259. After occupational therapy from July 2012
to September 2012, id at 263-343, J.M. "made great progress across skill areas with
improvement on both assessments." Id at 342. J.M. "benefit[ed] well from modeling and appears
to be a quick learner. No sensory deficits impacting function or performance at this time." Id
On August 9, 2012, J.M. went through a speech language assessment after "parental

concerns with expressive language" such as not speaking much at school or around new people.
Id at 280. The speech therapist concluded she had a "moderate-severe receptive and expressive
language disorder" due to her "difficulty understanding concepts, age appropriate grammatical
structures (pronouns, possessives and plurals) and negation." Id at 282. J.M. was recommended
to undergo speech therapy services for one hour per week for a year. Id After six months of
speech therapy, on February 28, 2013, J.M.'s progress note stated that that her "goals [were]

achieved for use of 4-5 word utterances and answering yes/no questions," and that she had made

"[i]mprovements with present progressive verbs." Id at 422. J.M.'s speech therapy ran until
August 12,2013. Mat 423-65.

J.M. presented for a social/behavioral evaluation on January 15, 2014. Id at 471. The
doctor found she "was able to focus for brief periods up to two-to-three minutes with one-to-one

instruction" and "attended to examiner questions and instructions with intrusive prompting." Id
During the assessment, J.M. "was able to communicate using simple phrases, gestures, and
physical movement" and "had a good understanding of 'no,' and 'yes' responses." Id The doctor

administered the Autism-Diagnostic Observation Schedule-Second Edition (ADOS-2) and found
"[t]he results of this instrument indicate that [J.M.] shows behaviors consistent with the criteria

for the autism spectrum cut-off score...with a low level of evidence of autism related symptoms."

Id at 472. Further, the doctor gave recommendations for J.M.'s learning style as well as
accommodations for maintaining her attention in the classroom. Id at 473.

J.M.'s treating physician wrote a letter on February 13, 2014, that stated he "met [J.M.] at
age 18 months and at that time she was noted to have a language delay." Id at 468. The

physician noted that she had genetic testing at her three year visit that revealed she might have an
autism spectrum disorder, but that he believed she needed to repeat the ADOS testing. Id J.M.'s
records from a doctor's visit on May 5, 2014, indicated she had repeated the ADOS testing and
her results were "consistent with a diagnosis of autism spectrum disorder." Id at 469. The doctor
noted that J.M. "could stay in the inclusion classroom next year," but that she "may also benefit
from a smaller self-contained classroom for special education." Id

Lastly, J.M. underwent a psychological evaluation on November 1, 2012, at the request
of the state agency. Id at 302-04. The evaluation revealed that she had "no obvious motor

8

impairment . . . could sit, stand, walk, and maintain balance . . . was flexible .... Gait and

posture were unremarkable . . . had an initially high activity level, but then was within normal
limits after she calmed down . . . had no tics, mannerisms, or atypical motor behaviors as

typically conceptualized . . . engaged in broadly repetitive gestures . . . [and] had some
exaggerated physical gestures." Id at 303. J.M. presented with "low average overall cognitive
ability with better nonverbal than verbal skills" and "some features consistent with a mild
pervasive developmental disorder," but that there was "improvement in her functioning level
over time." Id at 304.

Three state agency experts reviewed J.M.'s records on November 8,2012, and found that
although J.M. had "marked difficulties with speech, records show that she is continuing to
improve all of the time" and that she "receives special education services for her speech and
language impairment." Id at 74. Additionally, they found that even though J.M. had a pervasive

developmental delay, "her limitations...are not so severe as to be disabling." Id Ultimately, the
experts concluded J.M.'s "condition results in some limitations in the ability to function, but
those limitations are not severe enough to be considered disabling" because it "does not cause
marked and severe functional limitations." Id

Ms. Nunley requested reconsideration of the state agency experts' decision, and
subsequently three new state experts were selected to review J.M.'s records between June 26,
2013, and July 1, 2013. Id at 82-88. The experts concluded J.M.'s "condition results in some
limitation in the ability to function, but those limitations are not severe enough to be considered
disabling" because "her condition does not cause marked and severe functional limitations." Id
at 86. The experts noted she "has a history of treatment for her conditions" and although she "has

some difficulties with her speech, she is still able to communicate with others and most of her

speech can be understood without much difficulty." Id Moreover, her pervasive developmental
delay presents some limitations, but "they are not so severe as to be disabling" as "with
continued treatment her condition should continue to improve." Id
B.

ALJ Hearing

A sequential evaluation of a claimant's work and medical history is required in order to

determine if the claimant is eligible for benefits. 20 C.F.R. §§ 404.1520, 416.920; Mastro v.
Apfel. 270 F.3d 171, 177 (4th Cir. 2001). The ALJ conducts a three-step sequential analysis of
childhood disability claims for the Acting Commissioner, and it is this process that the Court
examines on judicial review to determine whether the correct legal standards were applied and

whether the resulting final decision of the Acting Commissioner is supported by substantial
evidence in the record. Id The ALJ "follow[s] a set order" to determine whether a child has a
disability, by determining whether the child: (1) is working or doing substantial gainful activity

since the impairment; (2) has a physical or mental impairment or combination of impairments
that is severe; and (3) if the impairment "meets, medically equals, or functionally equals" a listed
disability. 20 C.F.R. § 416.924(a).

An impairment of a child age three to eighteen meets or medically equals a listed
impairment, if at least two of the following are present:

a. Marked impairment in age-appropriate cognitive/ communicative function,
documented by medical findings (including consideration of historical and other
information from parents or other individuals who have knowledge of the child,
when such information is needed and available) and including, if necessary, the
results of appropriate standardized psychological tests, or for children under age
6, by appropriate tests of language and communication; or
b. Marked impairment in age-appropriate social functioning, documented by
history and medical findings (including consideration of information from parents
or other individuals who have knowledge of the child, when such information is
needed and available) and including, if necessary, the results of appropriate
standardized tests; or

10

c. Marked impairment in age-appropriate personal functioning, documented by
history and medical findings (including consideration of information from parents
or other individuals who have knowledge of the child, when such information is
needed and available) and including, if necessary, appropriate standardized tests;
or

d. Marked difficulties in maintaining concentration, persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P., app.l § 112.02(B)(I)(d)(2).

Determining if a child functionally equals the listing under the third step requires
evaluation of six domains of the child's limitation with: (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 themselves; and (6) their health and physical well-being. 20
C.F.R. § 416.926a(b)(l). The ALJ can find an impairment functionally equals a listed disability if
the child has an "extreme" limitation in one of the six domains or two "marked" limitations. 20

C.F.R. §416.92a(a). The ALJ can determine a limitation is "extreme" if the child's impairment
"interferes very seriously with [their] ability to independently initiate, sustain, or complete
activities." 20 C.F.R. § 416.926a(e)(3). Likewise, the ALJ can find a limitation is "marked" if the

child's impairment "interferes seriously with [their] ability to independently initiate, sustain, or
complete activities." 20 C.F.R. § 416.926a(e)(2).

Under this sequential analysis, the ALJ made the following findings of fact and
conclusions of law: First, the ALJ found that J.M. met the first two steps because she has not

engaged in substantial activity since applying for DIB and her speech-language developmental
delay is a severe impairment. R. 16. However, the ALJ concluded that J.M. did not meet step
three, and is thus not disabled, because she "does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments" and she
"does not have an impairment or combination of impairments that functionally equals the

11

severity of the listings." Id at 16-17.

Regarding the conclusion that J.M. did not meet or medically equal the severity of a
listed impairment, the ALJ gave "significant weight to the State agency medical consultants'

opinions." Id. at 16. The ALJ found that J.M. did not have "at least two of the following; marked
impairment in age-appropriate cognitive/communicative function; marked impairment in ageappropriate social functioning; marked impairment in age-appropriate personal ftinctioning; or
marked difficulties in maintaining concentration, persistence or pace." Id The ALJ noted that

although J.M, "had low average overall cognitive ability" and "problems with inattention and
distractibility," "she had "average nonverbal cognitive ability and very high academic skills,"
"friends in school and out of school," "does not appear to have significant behavioral problems,"
and "is on grade level academically." Id. at 16-17.
The ALJ found J.M. did not fiinctionally equal the severity of a listed impairment

because even though J.M.'s "medically determinable impairments could reasonably be expected
to produce the alleged symptoms," "the statements concerning the intensity, persistence, and
limiting effects of these symptoms are only partially credible." Id at 18. Furthermore, the ALJ

acknowledged that J.M. had a language disorder dating back to when she was eighteen months
old and that the questionnaires from her kindergarten and first grade teachers revealed serious
and obvious problems. Id Ultimately, the ALJ did not find these concerns to support a "marked"
finding in any of the six domains because in November 2012, J.M. was doing fine in school, and

despite her diagnoses of a mild pervasive developmental disorder and a mild level of autism
spectrum disorder, she was reading at grade level. Id at 18-19. The ALJ gave "relatively little
weight to the teacher questionnaires ... as they seem to overstate [J.M.'s] functional limitations"
since she has "good speech intelligibility for both familiar and novel listeners, normal

12

voice/fluency, and good articulation phonology, with some articulation errors" as well as the fact

"[s]he continues to receive occupational therapy, but has made good progress, and although she
reportedly has problems maintaining attention, she is on grade level academically." Id. at 19.

The ALJ also explained why he did not find that J.M. had "marked" limitation in any of
the six domains. Id at 19-27. First, the ALJ concluded J.M. had "less than marked limitation in

acquiring and using information" because of the improvements she had made with speech
therapy, her ability to follow directions, her good speech intelligibility, and that she is doing well
academically. Id, at 20-21. The ALJ stated that the fact J.M. was reading at grade level was

evidence against a "marked" limitation in this category "[c]onsidering the importance of reading

in the overall educational process." Id. at 19. Secondly, the ALJ found that J.M.'s limitation with
attending and completing tasks was less than "marked" because she is not taking any medication

nor has she been diagnosed with attention-deficit disorder. Id at 21-22. She "also likes routines
and functions well with them, completes activities that she enjoys, and is on grade level despite
her reported problems." Id at 22. The ALJ found J.M. has less than "marked" limitation in the
third category of interacting and relating with others because "she has friends in school and
outside of school." Id at 22-23. This, along with the fact that she also "interacts with others in

Girl Scouts" and enjoys the activities, counteracted the teacher questionnaires. Id at 22-23.
Fourth, the ALJ decided J.M. did not have any limitation in moving about and
manipulating objects based on her November 2012 examination, her most recent lEP, and her

mother's testimony at the hearing. Id, at 23-25. Fifth, the ALJ concluded J.M. did not have
"marked" limitation in the ability to care for herself given her November 2012 examination and
her mother's testimony. Id at 25-26. Lastly, the ALJ found that J.M. did not have any limitation
in health and physical well-being as her kindergarten teacher said that her pica, eczema, and

13

sickle cell did not impact her ability in the classroom and her mother testified she did not have
any health problems related to the sickle cell. Id at 26-27.
III.

STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, the Court reviews de novo any part of a

Magistrate Judge's recommendation to which a party has properly objected. Fed. R. Civ. P.
72(b)(3). The Court may then "accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions." Id 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." Gon2alez-Ramos v.

Emoresas Berrios. Inc.. 360 F. Supp. 2d 373, 376 (D. Puerto Rico 2005); see Riddick v. Colvin.
2013 WL 1192984 *1 n.l (E.D. Va., Mar. 21,2013).

The determination of a childhood disability is a three-step inquiry, as discussed above in
II.B. Under the Social Security Act, the Court's review of the Acting Commissioner's final

decision is limited to determining (1) whether the decision was supported by substantial evidence

in the record and (2) whether the correct legal standard was applied in evaluating the evidence.
42 U.S.C. § 405(g); Havs v. Sullivan. 907 F.2d 1453, 1456 (4th Cir. 1990). "If the

Commissioner's decision is not supported by substantial evidence in the record, or if the ALJ has
made an error of law, the Court must reverse the decision." Coffman v. Bowen. 829 F.2d 514,

517 (4th Cir. 1987). In deciding whether to uphold the Commissioner's final decision, the Court

considers the entire record, "including any new evidence that the Appeals Council 'specifically
incorporated... into the administrative record.'" Mever v. Astrue. 662 F.3d 700, 704 (4th Cir.
2011) (quoting Wilkins v. Sec'v. Dept. of Health & Human Servs.. 953 F.2d 93, 96 (4th Cir.
1991).

Substantial evidence is "evidence which a reasoning mind would accept as sufficient to
14

support a particular conclusion. It consists of more than a mere scintilla of evidence but may be

somewhat less than a preponderance." Laws v. Celebrezze. 368 F.2d 640, 642 (4th Cir. 1966). In
determining whether the Acting Commissioner's decision is supported by substantial evidence,
the Court does not "re-weigh conflicting evidence, make credibility determinations, or substitute

our judgment for that of the [Commissioner]." Craie v. Chaten 76 F.3d 585, 589 (4th Cir. 1996).
See also Hancock v. Astrue. 667 F.3d 470, 472 (4th Cir. 2012) ("In performing its review, the

court does not undertake to reweigh conflicting evidence, make credibility determinations, or
substitute our judgment for that of the [ALJ]." (internal citations and quotations omitted)).
"Where conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [ALJ]." Hancock. 667 F.3d at 472
(internal citations and quotations omitted). Accordingly, if the Acting Commissioner's denial of
benefits is supported by substantial evidence and applies the correct legal standard, the Court
must affirm the Commissioner's final decision. Havs. 907 F.2d at 1456.
IV.

ANALYSIS

Ms. Nunley contends that the Magistrate Judge made one error: that the R&R erred in

concluding that "the ALJ found that J.M.'s limitation with attending and completing tasks"—the
second domain—"was less than 'marked' because she is not taking any medication . . . ." ECF
No. 26. See also ECF No. 23, at 12. First, Ms. Nunley argues that this is "not factual

information" as J.M. currently requires at least two medications. ECF No. 26. Second, Ms.
Nunley further argues that "J.M.'s ability to follow directions does not go beyond two step
directions, and those findings have been found in the previous documents submitted. The
Vanderbilt test data show this information in its entirety." Id Ms. Nunley then asks that the

"information should be tak[en] into consideration being that the facts presented . . . [are]
incorrect." Id
15

With respect to Ms. Nunley's first contention, Ms. Nunley advises that J.M. has been
prescribed methylphenidate and desmopressin to address J.M.'s diagnoses of "Nocturnal
Enuresis, Autistic Disorder, and Attention [DJeficit [H]yperactivity [D]isorder." ECF No. 26. In

support of this, Ms. Nunley attaches a January 23, 2017 e-mail from a primary care coordinator

at Children's Hospital of the King's Daughters listing these diagnoses and medications for J.M.
Id. Ms. Nunley further advises that these diagnoses and medications will "continue to affect
[J.M.] for the rest of her life" as "[s]he will always need someone to monitor her" by "[ensuring]
she is taking her medication so that she[] can fiinction throughout the day." Id

With respect to the January 23,2017 email, 42 U.S.C. § 405(g) provides;
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing .... The court . . . may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior proceeding ....
Babcock v. Commissioner of Social Sec.. 2011 WL 2899169, at *6 (E.D. Va., 2011) further
provides:

A district court reviewing an ALJ's decision cannot consider evidence outside the
record in front of the ALJ. Smith v. Chater. 99 F.3d 635, 638 n. 5 (4th Cir. 1996).

A district court can order evidence presented to the Commissioner on remand if
(1) the evidence is relevant to the determination of disability at the time the
application was filed, (2) the evidence is material to the extent that the
Commissioner's decision might reasonably have been different had the new
evidence been before him, (3) there is good cause for the claimant's failure to
submit the evidence when the claim was before the Commissioner, and (4) the
claimant makes a general showing of the new evidence to the reviewing court. 42
U.S.C. § 405(g); Borders v. Heckler. 777 F.2d 954, 955 (4th Cir. 1985). See Miller
V. Barnhart. 64 Fed. App'x 858, 859-60 (4th Cir.2003).
In reiterating these standards, the Fourth Circuit concluded: "In assessing whether the claimant
has made these requisite showings, however, this Court does not find facts or try the case ^
novo." Finnev v. Colvin. 637 Fed. App'x 711, 715-16 (4th Cir. 2016) (internal citations and
16

quotations omitted).

Tiie burden of showing that they are met rests with the claimant. See Fagg v. Chater.
1997 WL 39146, at *2 (4th Cir. Feb. 3, 1997); Keith v. Astrue. 2012 WL 2425658, at *2 (W.D.
Va. 22 Jun. 2012) ("The burden of demonstrating that all of the Sentence Six requirements have
been met rests with the plaintiff."). See also Haves v. Colvin. 2016 WL 4257191, at *4
(E.D.N.C. 2016).

As this e-mail was not in the record before the ALJ, the Court construes Ms. Nunley's

submission of additional evidence as a request for a remand of the 2014 decision in light of the
supplemental information provided. Upon review, it does not appear to this Court that Ms.
Nunley has demonstrated a fulfillment of all four requirements necessary for remand based upon
additional evidence. First, the information fails to meet the requirement that it relate to the period
of disability in issue, which is the period between the date of application for benefits through the
date of the ALJ's decision. 20 C.F.R. § 416.330. The e-mail Ms. Nunley has submitted as
documentation of J.M.'s medication intake is dated January 23, 2017. However, the period of

disability in issue is between May 23, 2012, when Ms. Nunley originally filed her daughter's
application, and May 5, 2014, when Judge Costanza issued his decision. 20 C.F.R. § 416.924(a).

See also R. 27. No further indication of when the diagnoses were made or when the medications
were prescribed is included in the email.
Second, Ms. Nunley has not demonstrated that Judge Costanza's decision would have
been different had he known of the e-mail listing the diagnoses and prescriptions. Judge
Leonard's review of the record found that "there was sufficient evidence to support the ALJ's

finding for the second domain that J.M.'s limitation with attending and completing tasks was less
than 'marked'" not only because of Ms. Nunley's testimony that J.M. was not taking any

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medication and had not been diagnosed with attention-deficit disorder, ECF No. 23, at 18, sm
also R. 52-54, 222, but also because J.M.'s first lEP stated she had mastered following the

classroom routine, mastered completing the tasks associated with the routine, and demonstrated
an ability to stay on grade level (and, accordingly, attend and complete tasks associated with her
education), ECF No. 23, at 18, see also R. 193,237.

Third, Ms. Nunley failed to demonstrate good cause as to why this information was not

presented earlier. Finally, fourth, Ms. Nunley has presented to the reviewing court at least a
general showing of the nature of the new evidence. However, Ms. Nunley's failure to fulfill the
other three requirements means that the Court cannot consider the new evidence outside the
record before the ALJ and remand to the Commissioner on the basis of the new evidence.

With respect to the information previously in the record, even if this Court were to
consider the previous documents submitted that demonstrate J.M.'s ability to follow directions
does not go beyond two-step directions, such findings were, per Ms. Nunley's Objection,
contained in the previous record and, accordingly, considered by the ALJ and the R«feR. See, e.g..
R. 394, 415, 437, 469. Furthermore, the R&R also takes note of the teacher questionnaire that

notes that, with respect to attending and completing tasks, J.M. "had very serious problems in six
of the thirteen indicators, serious problems in one, obvious problems in three, and slight
problems in three." ECF No. 23, at 5-6. See also R. 218. Nonetheless, as stated above. Judge
Leonard's review of the record found that "there was sufficient evidence to support the ALJ's
finding for the second domain that J.M.'s limitation with attending and completing tasks was less

than 'marked.'" ECF No. 23, at 18. Judge Leonard reached this conclusion after assessing the
ALJ's consideration of a number of pieces of evidence, including J.M.'s then-lack of diagnosis
and medication, her mastery of the classroom routine, and her ability to stay on grade level. Id

18

"In performing its review, the court does not undertake to reweigh conflicting evidence[.]"
Hancock. 667 F.3d at 472. Having considered this objection de novo. the Court concludes that
substantial evidence supports the ALJ's finding that J.M.'s limitation with attending and
completing tasks was less than "marked" and, accordingly, rejects it. ECF No. 26.

20 C.F.R. § 416.330(b) provides: "If [an applicant] first meet[s] all the requirements for
eligibility after the period for which [the] application was in effect, [the applicant] must file a
new application for benefits." Accordingly, Ms. Nunley's remedy—should she believe the
evidence concerning J.M.'s diagnoses and medication as presented in her Objection would
qualify J.M. for a finding of a disability after the ALJ's 2014 decision—is to file a new
application. See Goodshield v. Colvin. 2015 WL 5009243, at *13 n. 13 (D.S.C. Aug. 19, 2015)

(denying plaintiffs request to consider new evidence because of her failure to explain why she
previously failed to present the evidence to the ALJ, how the new evidence related back to the

relevant time period, and how the new evidence required remand, but noting that plaintiff could
file a new application for benefits if she believed her functional abilities to work had deteriorated
since the ALJ's decision).
V.

CONCLUSION

Having reviewed Plaintiffs objection de novo. the Court; (1) ACCEPTS the R&R, ECF

No. 23; (2) DENIES Plaintiffs Motion for Summary Judgment, ECF No. 12; (3) GRANTS the
Defendant's Motion for Summary Judgment, ECF No. 13; and (4) AFFIRMS the final decision
of the Defendant. Accordingly, this matter is DISMISSED WITH PREJUDICE.

The Clerk is DIRECTED to enter judgment in favor of the Defendant and to forward a
copy of this Order to the pro se Plaintiff and Counsel of Record for the Defendant.

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IT IS SO ORDERED.

Robert

.".in .lOiu

UNITED ST^y"ES DISTRICT JUDGE
Norfolk, V/V

February,^, 2017

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