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Brown v. Colvin

United States District Court, D. South Carolina, Greenville Division

September 26, 2016

WENDELL JEROME BROWN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on United States Magistrate Judge Kevin F. McDonald's Report and Recommendation (“R&R”) that this court affirm Acting Commissioner of Social Security Carolyn Colvin's (the “Commissioner”) decision denying plaintiff Wendell Jerome Brown's (“Brown”) claim for disability insurance benefits (“DIB”). Brown filed objections to the R&R. For the reasons set forth below, the court adopts the R&R and affirms the Commissioner's decision.

         I. BACKGROUND [1]

         A. Procedural History

         Brown filed an application for DIB on October 9, 2012, alleging disability beginning March 12, 2010. The Social Security Administration denied Brown's claim initially and on reconsideration. Brown requested a hearing before an Administrative Law Judge (“ALJ”) and ALJ Thomas G. Henderson held a hearing on November 5, 2013. The ALJ issued a decision on January 16, 2014, finding that Brown was not disabled under the Social Security Act. Brown requested Appeals Council review of the ALJ's decision. The Appeals Council declined to review the decision, rendering the ALJ's decision the final action of the Commissioner.

         On June 25, 2015, Brown filed this action seeking review of the ALJ's decision. The magistrate judge issued an R&R on July 13, 2016, recommending that this court affirm the ALJ's decision. Brown filed objections to the R&R on August 11, 2016, and the Commissioner responded to Brown's objections on August 26, 2016. The matter is now ripe for the court's review.

         B. Medical History

         Because Brown's medical history is not directly at issue here, the court dispenses with a lengthy recitation thereof and instead notes a few relevant facts. Brown was born on January 29, 1971, and was 40 years old at the time of his alleged disability onset date. He communicates in English and has a limited education.

         C. ALJ's Decision

         The ALJ employed the statutorily required five-step sequential evaluation process to determine whether Brown was disabled between March 12, 2010, and September 30, 2011, the date Brown was last insured under 20 CFR § 404.1520(g). At step one, the ALJ determined that Brown had not engaged in substantial gainful activity during the relevant period. Tr. 25. At step two, the ALJ found that Brown suffered from the following severe impairments: (1) lumbar degenerative disc disease and (2) borderline intellectual functioning. Id. At step three, the ALJ determined that Brown's impairments did not meet or equal any of the listed impairments in the Agency's Listing of Impairments (“the Listings”). Tr. 26; see 20 C.F.R. § 404, Subpt. P, App'x 1. Before reaching the fourth step, the ALJ determined that Brown had the residual functional capacity (“RFC”) to perform sedentary work, as defined by 20 C.F.R. § 404.1567(a), with certain restrictions. Tr. 27. More specifically, the ALJ determined that Brown: (1) would need the ability to alternate between sitting and standing every 30 minutes; (2) was limited to only occasional postural activities; (3) could never climb ropes, ladders, or scaffolds; (4) should avoid concentrated exposure to work hazards; and (5) was limited to routine repetitive tasks. Id. At step four, the ALJ found that Brown was unable to perform his past relevant work as a groundskeeper, concrete finisher, and lawn care maintenance worker. Id. at 33. Nevertheless, the ALJ found that given Brown's age, education, work experience, and RFC, he was capable of performing other work that exists in significant numbers in the national economy. Id. at 34. Therefore, the ALJ concluded that Brown was not disabled. Id.

         II. STANDARD OF REVIEW

         This court is charged with conducting a de novo review of any portion of the magistrate judge's R&R to which specific, written objections are made. 28 U.S.C. § 636(b)(1). A party's failure to object is accepted as agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The recommendation of the magistrate judge carries no presumptive weight, and the responsibility to make a final determination rests with this court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).

         Judicial review of the Commissioner's final decision regarding disability benefits “is limited to determining whether the findings of the [Commissioner] are supported by substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. (internal citations omitted). “[I]t is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the [Commissioner] if his decision is supported by substantial evidence.” Id. Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ], ” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citation omitted). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)

         III. DISCUSSION

         Brown states three basic objections to the R&R, arguing that the magistrate judge erred in failing to find that: (1) that he was intellectually disabled under Listing 12.05(c); (2) the ALJ improperly weighed certain medical opinions in determining his RFC; and (3) the ALJ erred in failing to ask the impartial vocational expert (“VE”) certain hypothetical questions at the hearing. The court will address each objection in turn.

         A. Listing 12.05(c)

         Brown argues that the ALJ erred in failing to find that he was disabled under Listing 12.05(c). Pl.'s Objection 1-2. The Commissioner argues that the ALJ properly determined that Brown was not disabled under Listing 12.05(c) because Brown failed to prove the requisite deficits in adaptive behavior to qualify as disabled under Listing 12.05(c). Def.'s Reply 2.

         The Fourth Circuit has explained that Listing 12.05(c) establishes a three-pronged test for evaluating a claim of intellectual disability. Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012). The first prong-which is at issue in this case[2]- “requires a showing of ‘deficits in adaptive functioning initially manifested during the developmental period; i.e., [] evidence [that] demonstrates or supports onset of the impairment before age 22.'” Id. (quoting Listing 12.05). The second and third prongs require a claimant to show “‘[a] valid verbal, performance, or full scale IQ of 60 through 70, ' [] as well as ‘a physical or other mental impairment imposing an additional and significant work-related limitation of function, '” respectively. Id. (quoting Listing 12.05(c)). In evaluating a claimant's deficits in adaptive functioning, courts have looked to “areas such as communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.” Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012); Seabrook v. Colvin, No. 6:14-cv-2475, 2016 WL 2956966, at *6 (D.S.C. May 17, 2016), report and recommendation adopted, 2016 WL 2939632 (D.S.C. May 20, 2016); Williams v. Colvin, 2014 WL 3828224, at *11 (E.D. Va. Aug. 4, 2014). Assessing a claimant's adaptive functioning is a “fact-specific inquiry with few bright line rules.” Richardson v. Colvin, No. 8:12-cv-03507, 2014 WL 793069, at *11 (D.S.C. Feb. 25, 2014) (citing Salmons v. Astrue, 2012 WL 1884485, at *5 (W.D. N.C. May 23, 2012)).

         The ALJ determined that Brown did not suffer from any significant deficits in adaptive functioning based on prior work at semi-skilled jobs, his ability to drive, prepare simple meals and shop, his ability to read and perform simple math, and the absence of any reference to borderline intellectual functioning in his treating physicians' records. Tr. 26. Caselaw supports the ALJ's reliance on such evidence. Courts have recognized that a claimant's performance of a semi-skilled job is inconsistent with a finding of deficits in adaptive functioning. See Hancock, 667 F.3d at 476 (noting claimant's previous work at semi-skilled jobs in upholding ALJ's finding on adaptive functioning); Sims v. Colvin, No. 6:12-cv-3332-DCN, 2014 WL 793065, at *11 (D.S.C. Feb. 24, 2014) (“The ALJ reasonably considered several factors, including . . . her work history including semi-skilled work, in determining that she did not manifest the requisite deficit in adaptive functioning.”). A claimant's ability to care for his or herself and perform simple tasks such as driving, shopping, and preparing simple meals also suggests the claimant possesses sufficient adaptive functioning. Hancock, 667 F.3d at 476 (noting claimant's ability to perform various tasks, in affirming ALJ's conclusion that had no deficits in adaptive functioning); Sims v. Colvin, No. 0:14-cv-1663, 2015 WL 5525096, at *3 (D.S.C. Sept. 17, 2015) (recognizing claimant's ability to obtain driver's license as evidence supporting determination that the claimant had no deficits in adaptive functioning). Literacy and the ability to perform simple math are also factors to consider. Heaton v. Colvin, No. 0:15-cv-1150, 2016 WL 5109191, at *6 (D.S.C. Apr. 21, 2016), report andrecommendation adopted, 2016 WL 4993399 (D.S.C. Sept. 19, 2016). Finally, the absence of any reference to low intellectual functioning in a claimant's treatment history suggests that the claimant's IQ score is not a true measure of his or her adaptive functioning. ...


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