United States District Court, D. South Carolina, Greenville Division
J.L.V., a minor, by his mother Michelle Volpe, parental natural guardian, Plaintiff,
Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
case is before the court for a report and recommendation
pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.),
concerning the disposition of Social Security cases in this
District, and Title 28, United States Code, Section
plaintiff brought this action pursuant to Section 1631(c)(3)
of the Social Security Act, as amended (42 U.S.C.
1383(c)(3)), to obtain judicial review of a final decision of
the Commissioner of Social Security denying her son's
claim for supplemental security income benefits under Title
XVI of the Social Security Act.
plaintiff filed an application for supplemental security
income (“SSI”) benefits on behalf of her son
(“J.L.V.” or “the claimant”), a child
under the age of 18, on January 22, 2015, alleging disability
commencing August 1, 2014. The application was denied
initially and on reconsideration by the Social Security
Administration. On September 30, 2015, the plaintiff
requested a hearing. The administrative law judge
(“ALJ”), before whom the plaintiff, J.L.V., and
their attorney appeared during a hearing on August 17, 2017,
considered the case de novo, and on November 13,
2017, found that the claimant was not under a disability as
defined in the Social Security Act, as amended (Tr. 13-25).
The ALJ's finding became the final decision of the
Commissioner of Social Security when the Appeals Council
denied the plaintiff's request for review on September
14, 2018 (Tr. 1-3). The plaintiff then filed this action for
making the determination that the claimant is not entitled to
benefits, the Commissioner has adopted the following findings
of the ALJ:
(1) The claimant was born on September 5, 2008. Therefore, he
was a school-age child on January 22, 2015, the date
application was filed, and is currently a school-age child
(20 C.F.R. § 416.926a(g)(2))
(2) The claimant has not engaged in substantial gainful
activity since January 22, 2015, the application date (20
C.F.R. §§ 416.924(b) and 416.971 et seq.)
(3) The claimant has the following severe impairments:
autism, attention-deficit hyperactivity disorder, and anxiety
(20 C.F.R. § 416.924(c)).
(4) The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 416.924, 416.925 and
(5) The claimant does not have an impairment or combination
of impairments that functionally equals the severity of the
listings (20 C.F.R. §§ 416.924(d) and 416.926a).
(6) The claimant has not been disabled, as defined in the
Social Security Act, since January 22, 2015, the date the
application was filed (20 C.F.R. § 416.924(a)).
only issues before the court are whether proper legal
standards were applied and whether the final decision of the
Commissioner is supported by substantial evidence.
purposes of eligibility for Title XVI children's
disability benefits, an individual under age 18 will be
considered disabled if he 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 Commissioner's
regulations establish a three-part evaluation process: (1)
determine whether the child is currently engaged in
substantial gainful activity. If so, he is not disabled; if
not, (2) determine whether the child has a severe impairment
or impairments. If not, he 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, he is
not disabled. 20 C.F.R. § 416.924(b)-(d). If the
claimant's impairment or combination of impairments does
not meet or medically equal the requirements of a Listing,
the Commissioner will decide whether it results in
limitations that functionally equal such requirements.
Id. § 416.926a(a). To assess functional
equivalence, the Commissioner considers how the claimant
functions in activities in terms of six domains, broad areas
of functioning intended to capture all of what a child can or
cannot do. Id. § 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.
establish functional equivalence, the claimant must have a
medically determinable impairment or combination of
impairments that results either in “marked”
limitations in two domains or an “extreme”
limitation in one domain. Id. §
416.926a(a). The Commissioner will find that a
claimant has a “marked” limitation in a domain
when the claimant's impairment or combination of
impairments interferes seriously with his ability to
independently initiate, sustain, or complete activities.
Id. § 416.926a(e)(2)(I). “Marked”
limitation also means a limitation that is “more than
moderate” but “less than extreme” and may
arise when several activities or functions are limited or
when only one is limited. Id. The Commissioner will
find that the claimant has an “extreme”
limitation in a domain when the claimant's impairment or
combination of impairments interferes very seriously with his
ability to independently initiate, sustain, or complete
activities. Id. § 416.926a(e)(3)(I). Extreme
limitation also means a limitation that is “more than
marked” and may arise when several activities or
functions are limited or when one is limited. Id.
scope of judicial review by the federal courts in disability
cases is narrowly tailored to determine 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). Consequently, the Act precludes a de novo
review of the evidence and requires the court to uphold the
Commissioner's decision as long as it is supported by
substantial evidence. See Pyles v. Bowen, 849 F.2d
846, 848 (4th Cir. 1988) (citing Smith
v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986)). The phrase “supported by substantial
evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966) (citation omitted).
it is the duty of this court to give careful scrutiny to the
whole record to assure that there is a sound foundation for
the Commissioner's findings and that his conclusion is
rational. Thomas v. Celebrezze, 331 F.2d 541, 543
(4th Cir. 1964). If there is substantial evidence
to support the decision of the Commissioner, that decision
must be affirmed. Blalock v. Richardson, 483 F.2d
773, 775 (4th Cir. 1972).
was six years old on the date the application was filed
(January 22, 2015) and nine years old at the time of the
ALJ's decision (November 13, 2017) (Tr. 16).
March and April 2013, a comprehensive assessment of J.L.V.
was conducted to determine if he was eligible for special
education services with the Berkeley County School District.
J.L.V. was four years, seven months old at the time. The
assessment consisted of interviews with J.L.V. and the
plaintiff (his mother), psychometric and behavioral testing,
and reports from the plaintiff. It was noted that he began
receiving early intervention service through BabyNet in July
2010. In 2011, he had been diagnosed at the Coastal Autism
Division with Pervasive Developmental Disorder - Not
Otherwise Specified (“PDD-NOS”). In August 2011,
he was determined eligible for special education services due
to developmental delay and secondary language impairment.
Services were declined at that time. On March 21, 2013, the
plaintiff took J.L.V. to the Berkeley County School District
Child Find office due to concerns with behaviors. He had
recently been asked to leave his daycare due to aggression
(Tr. 309.) Overall, the assessment found that J.L.V.
demonstrated delays in visual motor integration skills and
displayed sensory seeking behaviors, which could interfere
with his ability to participate and engage in activities
within the school setting independently (Tr. 310).
October 29, November 20, and December 4, 2013, Jeffrey S.
Selman, Psy.D, BCBA-D, conducted a psychological evaluation
of J.L.V. (Tr. 321-30). He was five years, five months old at
the time and in preschool. The evaluation did not provide
objective evidence of attention deficit hyperactivity
disorder (“ADHD”). However, Dr. Selman noted that
many challenging behaviors were not uncommon in children with
PDD-NOS. He also noted that a number of the reported symptoms
of ADHD may not present fully until elementary school in
full-day classes (Tr 326-30).
October 20, 2014, when J.L.V. was six years old, Zoe K.
Pogue, M.D., at Lowcountry Pediatrics, P.A., conducted a well
check (Tr. 335-39). The plaintiff expressed concerns about
J.L.V. being a picky eater, possible adhesion, and waking up
every night. He was mainstreamed in school and had resource.
He tested well verbally but had trouble “transferring
from brain to paper.” His school was revising his
Individualized Education Program (“IEP”). He
continued to have speech and occupational therapy
(“OT”). He had been receiving social behavioral
therapy, which was being changed to academic behavioral
therapy. In OT, J.L.V. was working on buttoning, putting on
socks, and pencil grip. He would not eat any fruits, and
bacon was the only meat he would eat. On examination, Dr.
Pogue noted his growth and development were normal. He showed
appropriate behavior at home and at school and appropriate
behavior when playing with friends. He could read and do math
at grade level and showed pride in achievements. J.L.V. could
talk about what goes on in school, and he completed school
work. Dr. Pogue assessed oral/texture aversion, with referral
to outpatient OT or speech therapy. Diagnoses included PDD,
with continued OT, speech, and academic behavioral
training/resource at school (Tr. 336-39).
October 23, 2014, J.L.V. underwent an OT evaluation at
Charleston Pediatric Rehabilitation in North Charleston (Tr.
December 15, 2014, faculty and staff at Boulder Bluff
Elementary School developed an IEP for J.L.V.. He was six
years old and in kindergarten. The primary area of disability
was developmental delay, and the secondary area of disability
was speech/language impairment. His behavior impeded his
learning or the learning of others. He displayed an
articulation disorder characterized by sound substitutions.
He was strong in basic rote knowledge and used nice behaviors
in play with peers and working with adults. He had difficulty
with fine motor skills, speaking clearly, staying on task,
applying his basic skills knowledge, and following directions
when having to work independently. When J.L.V. was around a
larger group of peers he demonstrated more difficulties with
attention, distracting movements, and patience. He rushed
through assignments. Due to his deficiencies in speech,
sensory processing, motor skills, and behavior skills, he was
unable to access the general education curriculum and
required special education services. At the time of the IEP,
J.L.V. was unable to complete age-appropriate fine
motor/visual perceptual classroom activities without
assistance (Tr. 354-55).
noted in the IEP that the plaintiff reported that J.L.V. was
a very picky eater. He did not like to have his teeth
brushed. His teacher, Ms. Bell, reported that he had a hard
time remaining attentive in class. He moved and wiggled a
lot, and he required his own extra space to keep his body to
himself. J.L.V. had difficulties with multi-step directions.
He was able to be functionally independent within the
classroom with some difficulties following routines and
opening meal containers/packages. J.L.V. was unable to button
or unbutton large buttons, tie his shoes, and required
prompting and redirections while dressing or undressing (Tr.
357). He made frequent noises in the classroom but stopped
when asked. He engaged in parallel play with peers. He needed
frequent redirection in the classroom. Regarding motor
skills, the evaluation team reported that J.L.V. had
difficulties with grip dressing tasks and sensory
differences. He had difficulties with intelligibility in the
school setting (Tr. 357-69).
included speech/language skills were at a percentile rank of
12%, with an age-equivalent score of three years, 11 months.
He had mild-moderate deficit in articulation, characterized
by sound substitutions, and the phonological process of
gliding was also present. His intelligibility decreased
during connected speech, and it became more difficult to
understand him. He had age-appropriate skills in the areas of
receptive language, expressive language, pragmatic language,
voice, and fluency. The team concluded that J.L.V. “is
unable to complete age-appropriate fine motor/visual
perceptual classroom activities without assistance at this
time. He uses a loose grip on his writing utensil, writing
very lightly and showing difficulties with letter formation
and writing within a designated space.” A profile
completed by the outside occupational therapist and the
plaintiff indicated that J.L.V. “may have high
thresholds for certain sensory stimuli and therefore seeks
out and creates ...