The opinion of the court was delivered by: Edwin M. Kosik United States District Judge
Before this court is a dispute concerning a decision by the Commissioner of Social Security in which the Commissioner denied Plaintiff's claim for Supplemental Security Income (SSI), 42 U.S.C. §§ 1381--1383f (2000). We review the record pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to determine whether substantial evidence exists to support the Commissioner's decision. The matter was assigned to United States Magistrate Judge J. Andrew Smyser. In the Report and Recommendation filed November 20, 2007, the Magistrate Judge found that substantial evidence supported the Commissioner's decision, and recommended that we deny Plaintiff's appeal. Plaintiff filed objections to the Report and Recommendation, Defendant filed a response, and plaintiff filed a reply. For the reasons which follow, we will adopt the Report and Recommendation of the Magistrate Judge, and affirm the findings of the Commissioner.
The extensive procedural history involved in this case is set forth without objection in the Report and Recommendation of the Magistrate Judge. Specifically, plaintiff, through his mother, filed an application for SSI alleging disability since August 23, 1995 due to Attention Deficit Hyperactivity Disorder (ADHD). Following several remands and hearings, the Administrative Law Judge (ALJ) issued a decision denying plaintiff's claim on January 18, 2006, and the Appeals Council denied a request for review. Plaintiff filed a complaint with this court on March 30, 2007. On June 4, 2007, the defendant filed an answer to the complaint. The plaintiff filed his brief on August 22, 2007 and the defendant filed a brief on October 17, 2007. Plaintiff's reply brief was filed on November 5, 2007. On November 20, 2007, the Magistrate Judge issued his Report and Recommendation wherein he recommended that the plaintiff's appeal be denied. On December 10, 2007, plaintiff filed objections to the Magistrate Judge's Report and Recommendation. On December 21, 2007, the defendant filed a response to plaintiff's objections. Plaintiff filed a reply to defendant's response on December 21, 2007.
When objections are filed to a report and recommendation of a magistrate judge, we review de novo those portions of the report or specified proposed findings or recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(C) (2000). In our review, we may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C). Although our review is de novo, we may, in the exercise of sound judicial discretion, rely upon the magistrate judge's proposed recommendations if appropriate. United States v. Raddatz, 447 U.S. 667, 676 (1980).
When a claimant appeals from a final decision by the Commissioner of the Social Security Administration, we uphold the Commissioner's decision if it is supported by substantial evidence. See 42 U.S.C. § 405(g) (2000); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence "does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). "It consists of more than a mere scintilla of evidence but less than a preponderance." Stunkard v. Sec'y of Health and Human Servs., 841 F.2d 57, 59 (3d Cir. 1988). If the conclusion of the ALJ is supported by substantial evidence, we may not set aside the Commissioner's decision even if we would have decided the factual inquiry differently. Hartranft, 181 F.3d at 360.
A three-step evaluation process is used to determine disability for child claimants. 20 C.F.R. § 416.924 (2006). The first step of the process requires the claimant to establish that he has not engaged in substantial gainful activity. If a claimant has been doing substantial gainful activity, the Commissioner will determine that he is not disabled and will not review the claim further. 20 C.F.R. § 416.924(a). If the plaintiff is not doing substantial gainful activity, the Commissioner will determine, at step two, whether the claimant's impairments are severe. Id. If the impairments are not severe, the Commissioner will determine that the claimant is not disabled and will not review the claim further. Id. If the impairments are severe, the Commissioner will then proceed to step three, to determine whether the claimant's impairments meet, medically equal, or functionally equal the listings. Id. If the Commissioner finds that the claimant has such impairments, and that the impairments meet the duration requirement, the Commissioner will find that the claimant is disabled. Id.
For a claimant's impairments to functionally equal a listing, the impairments must result in marked limitations in two listed domains of functioning or an extreme limitation in one domain. 20 C.F.R. § 416.926a(a). The regulations list six applicable domains of functioning: (1) acquiring and using information; (2) attending to and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) ability to care for one's self; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). A marked limitation exists when the impairment interferes seriously with the child's ability to independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(2)(l). An extreme limitation exists when the impairment interferes very seriously with the child's ability to initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e)(3)(I).
In applying the evaluation process in this case, the ALJ proceeded through each step of the process and concluded that plaintiff was not disabled.*fn1 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity. At step two, the ALJ found that the plaintiff's ADHD was a severe impairment within the meaning of the Regulations. At step three, the ALJ determined that the plaintiff's ADHD did not meet, medically equal, or functionally equal a listed impairment. The ALJ further found that the plaintiff did not have an extreme limitation in any domain of functioning or a marked limitation in two or more domains of functioning. Thus, the ALJ concluded that the plaintiff was not disabled under the Act.*fn2
In his objections, the plaintiff argues (1) that the ALJ failed to apply the Commissioner's regulations with respect to the adjudication of childhood disability claims; (2) that the ALJ failed to consider plaintiff's ability to function outside highly structured settings; and (3) that the ALJ's reliance on the testimony of Dr. Weinberger was an error as a matter of law because Dr. Weinberger did not base his review on the complete record. We will review plaintiff's objections to the Report and Recommendation of the Magistrate Judge in light of the instant record.
In his first objection, plaintiff argues that the ALJ failed to apply the Commissioner's regulations with respect to the adjudication of childhood disability claims. In particular, the plaintiff argues that the ALJ failed to apply or even cite the Commissioner's regulations regarding his affirmative duty to compare plaintiff to other unimpaired children and that the ALJ's failure to compare plaintiff with other unimpaired children is an error of law. We disagree.
As the defendant points out, evaluation of a child's impairment under the listing of impairments requires the ALJ to take into account the required degree of severity between an unimpaired child and a disabled child. In discussing the plaintiff, the ALJ stated that in making his decision, one of the things he considered was "How the child's functioning compares to that of unimpaired children of the same age."*fn3 We find the ALJ's evaluation of the evidence to be consistent with the regulations. In the section of his Decision marked "Evaluation of the Evidence and Rationale," the ALJ discussed the findings presented by Dr. Jamack and Dr. Weinberger and he stated that he gave significant weight to their opinions. He also reviewed the testimony of claimant and his mother. The ALJ then applied the findings to the six domains. The ALJ ...