Hall v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

SHEILA H.,

Plaintiff,

v. Civil Action 1:22-cv-555

Magistrate Judge Kimberly A. Jolson

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Sheila H., brings this action under 42 U.S.C. § 405(g) seeking review of a final

decision of the Commissioner of Social Security (“Commissioner”) denying her application for

Disability Insurance Benefits (“DIB”). For the reasons set forth below, the Court OVERRULES

Plaintiff’s Statement of Errors (Doc. 9) and AFFIRMS the Commissioner’s decision.

I. BACKGROUND

Plaintiff filed her application for DIB on November 20, 2018, alleging disability beginning

January 31, 2003. (R. at 212–18). After her application was denied initially and on

reconsideration, the Administrative Law Judge (the “ALJ”) held a video hearing on September 2,

2021. (R. at 25–63). The ALJ denied benefits in a written decision. (R. at 10–24). The Appeals

Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the

Commissioner. (R. at 1–6).

Plaintiff filed the instant case seeking a review of the Commissioner’s decision on

September 26, 2022 (Doc. 1), and the Commissioner filed the administrative record on November

18, 2022 (Doc. 6). The matter has been briefed and is ripe for consideration. (Docs. 9, 12, 13).

A. Relevant Hearing Testimony

The ALJ summarized the reports presented to the administration and testimony from

Plaintiff’s hearing:

Initially, [Plaintiff] alleged disability due to Meniere’s disease, oversensitive sense

of smell, and bladder cancer, in remission (3E/2). At the hearing, [Plaintiff] testified

that her dizziness started in 1999. She reported she had daily episodes before her

surgery in 2003 and she felt better with fewer episodes from 6 to 12 months

afterwards. [Plaintiff] stated that she had unpredictable, less severe attacks more

than once a week, and sometimes she would have to crawl due to them. She added

that her attacks last about 30 minutes. [Plaintiff] testified that she had severe attacks

about once a month, and they would take her out for days (testimony).

(R. at 16).

B. Relevant Medical Evidence:

The ALJ summarized the medical records as follows:

In December 2002, a few months before her alleged onset date, [Plaintiff] reported

she had 2 to 3 episodes of vertigo in the previous 5 months, along with nausea, ear

pressure, ear ringing, hearing loss, and ear itching. However, an audiogram showed

normal hearing, and her exam was normal. She told to take [D]yazide and follow a

low salt diet (4F/3). Around the alleged onset date in January 2003, [Plaintiff] stated

she was doing better, with no vertigo but occasionally she felt lightheaded and had

intermittent ear fullness and tinnitus. She said she only took Dyazide for two weeks

because it made her sick to her stomach, though she was maintaining on low salt

diet alone. Physical exam findings were normal (4F/5-6).

In July 2003, [Plaintiff] reported no improvement with low salt diet or diuretic.

Allergy testing was positive for significant dust allergy. [Plaintiff] elected for left

endolymphatic mastoid shunt (1F/6). In November, she stated she had not had any

vertigo since the shunt placement. She said she occasionally had ear fullness but

was much improved overall (1F/3). In May 2004, [Plaintiff] reported she had been

doing well until that month, reporting she had three episodes, possibly due to

allergy season. She was restarted on allergy medication (1F/2).

There is then a break in treatment for Meniere’s disease for several years, though

[Plaintiff]’s representative asserts [Plaintiff] did not undergo follow-up treatment

because there is no cure for Meniere’s disease (16E/2).

In May 2007, [Plaintiff] had a cardiology visit. [Plaintiff] reported chest discomfort

and palpitations. She said she was in “her usual state of health until three weeks

ago” when she developed a sinus infection, then chest discomfort that was slightly

more intense when she took a deep breath. Holter monitoring showed no significant

abnormality, just rare PACs. [Plaintiff] reported she suddenly felt much better after

two courses of antibiotics. She also stated she was a stay-at-home mom, with three

kids under 20 and a 6-month-old grandchild. She added she was “extremely active”

around the home. An EKG was normal, but she had a soft murmur on exam (2F/2-

3, also 6F). The next month, there were no changes/evidence of ischemia with EKG

or echo. She was noted with mild mitral and tricuspid valvular insufficiency (2F/4).

(R. at 17).

C. The ALJ’s Decision

The ALJ found that Plaintiff last met the insured status requirement on March 31, 2007,

and did not engage in substantial gainful employment during the period from her alleged onset

date of January 31, 2003, through her date last insured. (R. at 15). The ALJ determined that

Plaintiff had the impairments of Meniere’s disease and orthostatic hypotension during the relevant

period. (Id.). Still, the ALJ found that none of Plaintiff’s impairments were severe and none of

them met or medically equaled a listed impairment. (Id.).

Because the ALJ found no impairment to be severe, she was not required to move to the

next steps of the analysis. But the ALJ made an alternative residual functional capacity (“RFC”)

finding:

In the alternative and assuming arguendo that Meniere’s disease was a severe

impairment, [Plaintiff] would still have been able to perform a full range of

exertional work except she would have been able to occasionally climb ramps and

stairs but never climb ladders, ropes, or scaffolds. She could also have had no

exposure to unprotected heights, no use of dangerous machinery, and no

commercial driving.

(R. at 18).

Relying on the vocational expert’s testimony, the ALJ determined that, through the date

last insured, considering her age, education, work experience, and RFC, Plaintiff could perform

her past work of a sandwich maker and sales demonstrator. (Id.). She therefore concluded that

Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from January

31, 2003, the alleged onset date, through March 31, 2007, the date last insured (20 CFR

404.1520(c)).” (Id.).

II. STANDARD OF REVIEW

The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).

“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting

Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.

Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)

(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538

(6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial evidence,

it must be affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42

U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).

III. DISCUSSION

In her Statement of Errors, Plaintiff argues that the ALJ erred at step three by failing to

apply Listing 2.00(C). And, alternatively, Plaintiff argues that her symptoms rendered her unable

to work so, says Plaintiff, the ALJ erred when crafting the RFC. For support, Plaintiff primarily

relies on the opinion of her treating primary care physician, Mahboobullah Noory, M.D. (Docs.

9, 13).

Up front, the Undersigned notes Plaintiff has a hurdle to overcome before her assigned

errors can be considered. The ALJ determined that Plaintiff had no severe impairments during the

relevant period. A finding of non-severity at step two ends the analysis. The listing determination

is made at step three of the sequential evaluation, and the residual functional capacity finding is

made after that. As discussed below, the ALJ made an alternative finding at the end of the decision,

but the threshold issue before the Court is whether the ALJ’s finding of non-severity is supported

by substantial evidence.

The Commissioner says it is. She argues that the ALJ properly determined at step two that

Plaintiff was not disabled prior to her date last insured because she did not have a severe

impairment. In the alternative, the Commissioner argues that Plaintiff could still perform her past

relevant work and would be “not disabled” on that additional basis. (Doc. 12).

A. Step Two

At step two, an ALJ must determine whether a claimant has a medically determinable

impairment that is “severe” or a combination of impairments that is “severe.” 20 C.F.R. §

404.1520(c). An impairment or combination of impairments is “severe” within the meaning of the

regulations if it significantly limits an individual’s ability to perform basic work activities. An

impairment or combination of impairments is “not severe” when medical and other evidence

establish only a slight abnormality or a combination of slight abnormalities that would have no

more than a minimal effect on an individual’s ability to work. 20 C.F.R. § 404.1522; Social

Security Rulings (SSRs) 85-28 and 16-3p. If the claimant does not have a severe medically

determinable impairment or combination of impairments, she is not disabled.

Here, the ALJ concluded that Plaintiff had impairments that were medically determinable,

but the impairments did not rise to the level of severity required by the Social Security regulations.

The Social Security Act defines disability as the inability to engage in any substantial gainful

activity by reason of a medically determinable physical or mental impairment that can be expected

to result in death or that has lasted or can be expected to last for a continuous period of not less

than 12 months. See 42 U.S.C. §§ 423(d)(1)(A), (d)(2)(A); 20 C.F.R. § 404.1505. A claimant’s

symptoms alone are not enough, as the impairment must be established by appropriate medical

findings. See 20 C.F.R. § 404.1521 (medically determinable impairments must be established by

objective medical evidence from an acceptable medical source, symptoms alone insufficient); SSR

16-3p (symptoms alone are insufficient to establish the impairment as medically determinable).

Additionally, a claimant must show that the impairment was severe during the time she

was insured for Title II disability benefits. See Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir.

1990); see also 20 C.F.R. § 404.101(a). Here, the ALJ found that Plaintiff’s insurance period

ended on March 31, 2007. (R. at 15). Plaintiff does not dispute the insured status date, and Plaintiff

thus must show that her impairment was severe between the alleged onset date, January 31, 2003,

and the date last insured, March 31, 2007.

The ALJ found that Plaintiff’s Meniere’s disease and orthostatic hypotension were

medically determinable impairments. (R. at 15). “Meniere’s disease is a disorder of the inner ear

that causes severe dizziness (vertigo), ringing in the ears (tinnitus), hearing loss, and a feeling of

fullness or congestion in the ear. Meniere’s disease usually affects only one ear.” What Is

Ménière’s Disease? — Diagnosis and Treatment, NAT’L INST. OF HEALTH, NAT’L INST. ON

DEAFNESS AND OTHER COMMC’N DISORDERS, https://www.nidcd.nih.gov/health/menieres-disease

(last updated Feb. 13, 2017). The condition may come on suddenly, and some individuals have

attacks that are closer together while other individuals have a single attack of dizziness separated

by “long periods of time.” Id.

While the ALJ acknowledged Plaintiff’s impairments, she went on to say that they were

not “severe” as that term is defined in agency regulations. (R. at 16–18). A severe impairment is

an impairment that significantly limits an individual’s ability to work. See 20 C.F.R. § 404.1520(c)

(“[A] “severe impairment…significantly limits your physical or mental ability to do basic work

activities…”); see also § 404.1522 (defining non-severe impairments).

A review of the record shows that there is substantial evidence to support the ALJ’s

determination. Notably, there are few medical records from the relevant time period. They

include:

• January 2003: Plaintiff states she is “doing better with no vertigo” but has “occasional[]

lightheadedness” and intermittent ear fullness; normal physical exam findings. (R. at 396–

97).

• July 2003: Testing positive for “significant dust allergy,” Plaintiff elects for left

endolymphatic mastoid shunt surgery. (R. at 347).

• August 2003: Endolymphatic mastoid shunt surgery (no complications reported). (R. at

345–46).

• November 2003: Roughly 3 months after endolymphatic mastoid shunt surgery, Plaintiff

reports no episodes of vertigo since surgery. (R. at 344).

• May 2004: Plaintiff reports doing well until that month. She reports three episodes, which

she attributes to “allergy season.” She is advised to resume allergy medication and a

follow-up visit is scheduled for six months later. (R. at 343).

• June 2004–March 2007: No records.

To summarize, in early 2003, Plaintiff was having episodic vertigo, presumably due at least

in part to Meniere’s Disease. Ultimately, after diuretics and a low-sodium diet failed to relieve

her symptoms, she chose endolymphatic mastoid shunt placement in her left ear. The surgery went

well. Then, about three months later, Plaintiff reported doing well and that she had been “episode

free.” Roughly six months after that, she reports she had been episode-free until then. So, for

about nine months (August 2003–May 2004), Plaintiff reports being episode-free and reports doing

well. And, when she reports not doing as well in May 2004, she attributes the change to allergy

season. Her medical provider prescribes allergy medication and schedules a follow-up

appointment for six months later. The record then goes silent through Plaintiff’s last-insured date,

March 15, 2007. So there are long periods of time when Plaintiff reported mild or no symptoms

caused by Meniere’s disease. On this record, the ALJ’s determination that Plaintiff’s Meniere’s

disease was not severe is supported by substantial evidence.

Still more, the ALJ considered the next medical record in the file, dated May 2007:

In May 2007, [Plaintiff] had a cardiology visit. [Plaintiff] reported chest discomfort

and palpitations. She said she was in “her usual state of health until three weeks

ago” when she developed a sinus infection, then chest discomfort that was slightly

more intense when she took a deep breath. Holter monitoring showed no significant

abnormality, just rare PACs. [Plaintiff] reported she suddenly felt much better after

two courses of antibiotics. She also stated she was a stay-at-home mom, with three

kids under 20 and a 6-month-old grandchild. She added she was “extremely active”

around the home. An EKG was normal, but she had a soft murmur on exam (2F/2-

3, also 6F). The next month, there were no changes/evidence of ischemia with EKG

or echo. She was noted with mild mitral and tricuspid valvular insufficiency (2F/4).

(R. at 17). Although the record is beyond Plaintiff’s last-insured date, it provides helpful context.

See Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 850 (6th Cir. 2020) (citations omitted) (affirming

use of evidence of a claimant’s medical condition after the expiration of a date last insured if it

“illuminates that condition before the expiration of insured status”). Plaintiff reported being an

“extremely active” stay-at-home parent who recently had been in her “usual state of health,” which

the cardiologist noted included “no significant past medical history.” (R. at 349–50).

To challenge the ALJ’s conclusion that her Meniere’s disease was not severe during the

relevant period, Plaintiff turns to a medical assesmment her primary care provider, Mahboobullah

Noory, M.D., submitted in March 2020. An ALJ must use the following factors when considering

medical opinions or administrative findings: (1) “[s]upportability”; (2) “[c]onsistency”; (3)

“[r]elationship with [Plaintiff]”; (4) “[s]pecialization”; and (5) other factors, such as “evidence

showing a medical source has familiarity with the other evidence in the claim or an understanding

of [the SSA’s] disability programs policies and evidentiary requirements.” 20 C.F.R. §

404.1520c(c)(1)–(5). Supportability and consistency are the most important factors; and the ALJ

must explain how they were considered. 20 C.F.R. § 404.1520c(b)(2). Though an ALJ may

discuss how he or she evaluated the other factors, it is not required. Id. If, however, an ALJ

“find[s] that two or more medical opinions or prior administrative findings about the same issue

are both equally well-supported . . . and consistent with the record . . . but are not exactly the same,

[the ALJ will] articulate how [he or she] considered the other most persuasive factors . . . . . ” 20

C.F.R. § 404.1520c(b)(3). Thus, the role of the ALJ is to articulate how he considered medical

opinions and how persuasive he found the medical opinions to be. Holston v. Saul, No. 1:20-CV-

1001, 2021 WL 1877173, at *11 (N.D. Ohio Apr. 20, 2021), report and recommendation adopted,

No. 1:20 CV 1001, 2021 WL 1863256 (N.D. Ohio May 10, 2021).

Here, the ALJ found Dr. Noory’s opinion to be “not persuasive”:

In March 2020, …. [Dr. Noory] stated [Plaintiff] has been a patient for over 35

years. He then detailed her reported symptoms, frequency, and triggers. However,

he did not cite any objective findings. Dr. Noory opined that she would be off task

at least 25% of the time, she would need to take unscheduled breaks, and she would

likely miss up to three days of work per month (10F). This opinion was not

persuasive because it was rendered well past the date last insured (almost 3 years),

and it is unclear how much, if any, of the limitations apply to the relevant period.

In addition, the opinion is not consistent with other objective, contemporaneous

evidence. For example, January 2003 examination findings were normal (4F/5-6).

After a shunt placement in 2003, [Plaintiff] reported improvement. Though she

noted having three episodes in May 2004, there is no objective evidence

documenting limitations related to [Plaintiff]’s ability to work (1F/2-6).

(R. at 17–18).

The ALJ addressed supportability by noting that the doctor did not cite any objective

findings. (Id.). See 20 C.F.R. § 404.1520c(c)(1) (defining supportability). The ALJ also

considered that other evidence in the record was inconsistent with the opinions, such as

contemporaneous examination records and Plaintiff’s overall treatment history. (R. at 18 (citing

R. at 343–47 (UC Physicians examination records) and R. at 396–97 (Group Health Associates

records showing doing better after surgery)). Thus, the ALJ considered the consistency factor.

See 20 C.F.R. § 404.1520c(2) (defining consistency). Still more, the ALJ also noted that the

opinion was written years after the date last insured, and it could not be ascertained whether the

restrictions applied to the relevant period. (R. at 18). See 20 C.F.R. § 404.1520(c)(5) (other factors

that tend to contradict the opinion). As such, the ALJ’s evaluation is consistent with agency

regulations and has record support.

In another effort to challenge the ALJ’s analysis, Plaintiff says that the ALJ should have

considered that her symptoms worsened in 2005 and remained heightened through the date last

insured. (Doc. 11 at 9). But Plaintiff cites no evidence to support this narrative. And, as the ALJ

noted, the record shows the opposite. (See R. at 17 (citing R. at 344 (“overall much improved”))).

Moreover, the ALJ considered the 2004 treatment, despite it being attributed to allergies—a short-

term condition that would not meet the 12-month duration requirement. (R. at 17, 69, 77, 257,

343). And, as mentioned above, the ALJ considered Plaintiff’s heart-related treatment in May

2007, after the insured status expired at the end of March of that same year. (R. at 17, 349). Taking

all those records into account, the ALJ explained that, from 2004 through the date last insured,

there was little follow-up care or complaint, and there was a break in treatment for several years.

(R. at 17).

Plaintiff also criticizes how the ALJ evaluated the state agency doctors’ opinions. (See

Doc. 9 at 11). A “prior administrative medical finding is a finding, other than the ultimate

determination about whether you are disabled, about a medical issue made by our Federal and

State agency medical and psychological consultants at a prior level of review…” 20 C.F.R.

§ 404.1513(a)(5). An ALJ is not required to adopt the findings, but “will” consider the findings

from these physicians. Id. at (b); see also SSR 17-2p. Similar to opinions from examining doctors,

the findings are evaluated as provided for in 20 C.F.R. § 404.1520c—with an emphasis on

supportability and consistency.

The ALJ found the prior administrative medical findings persuasive. (R. at 17 (citing R.

at 64–71, 73–80)). Specifically, the ALJ found that the evidence cited by the agency doctors,

including the successful shunt placement and the conservative and intermittent treatment supported

a finding that the impairments were not severe. (R. at 17 (citing R. at 64–71, 73–80)).

Accordingly, the ALJ followed the regulations, and her reliance on the state agency doctors was

sound. See Dyson v. Comm’r of Soc. Sec., 786 F. App’x 586, 590 (6th Cir. 2019) (“We regularly

find that substantial evidence supports a no-disability determination when the ALJ relies primarily

on independent medical advice consistent with the claimant’s medical records.”) (citing Glasgow

v. Comm’r of Soc. Sec., 690 F. App’x 385, 387 (6th Cir. 2017) (holding no-disability finding

supported by substantial evidence where independent psychologists found that, though the

claimant produced evidence of “work-preclusive limitations,” he “could perform simple, repetitive

tasks”).

All told, substantial evidence supports the ALJ’s conclusion that Plaintiff’s Meniere’s

disease was not a severe impairment during the relevant period. On this basis alone, the

Commissioner’s decision is AFFIRMED.

B. Step Three and Plaintiff’s Residual Functional Capacity

Though a finding of non-severity at step two is fatal to Plaintiff’s claim, the ALJ made an

alternative finding at step three and went on to fashion an RFC, wherein Plaintiff could still work.

The Commissioner relies on these findings in the alternative, and Plaintiff focuses her argument

here. Consequently, the Court addresses these matters briefly.

At step three, a claimant carries the burden to show that she has an impairment or

combination of impairments that meets or medically equals the criteria of an impairment listed in

20 C.F.R. § 404, Subpart P, App. 1. Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); 20 C.F.R.

§ 404.1520(a)(4)(iii). If a claimant meets all of the criteria of a listed impairment, she is disabled;

otherwise, the evaluation proceeds to step four. 20 C.F.R. § 404.1520(d)–(e); Bowen v. Yuckert,

482 U.S. 137, 141 (1987); see also Rabbers v. Comm’r of Soc. Sec. Admin., 582 F.3d 647, 653

(6th Cir. 2009) (“A claimant must satisfy all of the criteria to meet the listing.”).

In evaluating whether a claimant meets or equals a listed impairment, an ALJ must

“actually evaluate the evidence, compare it to [the relevant listed impairment], and give an

explained conclusion, in order to facilitate meaningful judicial review.” Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011). Otherwise, “it is impossible to say that the ALJ’s

decision at Step Three was supported by substantial evidence.” Id. (citations omitted). The ALJ

“need not discuss listings that the [claimant] clearly does not meet, especially when the claimant

does not raise the listing before the ALJ.” Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641

(6th Cir. 2013). “If, however, the record ‘raise[s] a substantial question as to whether [the

claimant] could qualify as disabled’ under a listing, the ALJ should discuss that listing.” Id. at 641

(quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)); see also Reynolds, 424 F. App’x

at 415–16 (holding that the ALJ erred by not conducting any step three evaluation of the claimant’s

physical impairments, when the ALJ found that the claimant had the severe impairment of back

pain).

“A claimant must do more than point to evidence on which the ALJ could have based his

finding to raise a ‘substantial question’ as to whether he satisfied a listing.” Smith-Johnson v.

Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014) (quoting Sheeks, 544 F. App’x at 641–

42). “Rather, the claimant must point to specific evidence that demonstrates he reasonably could

meet or equal every requirement of the listing.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530

(1990)). “Absent such evidence, the ALJ does not commit reversible error by failing to evaluate

a listing at Step Three.” Id. at 433; see also Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359,

366 (6th Cir. 2014) (finding harmless error when a claimant could not show that he could

reasonably meet or equal a Listing’s criteria).

Relevant here, Listing 2.07 is defined as: “Disturbance of labyrinthine-vestibular

function (Including Meniere’s disease), characterized by a history of frequent attacks of balance

disturbance, tinnitus, and progressive loss of hearing. With both A and B:

A. Disturbed function of vestibular labyrinth demonstrated by caloric or other vestibular

tests; and

B. Hearing loss established by audiometry.”

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.07.

The ALJ’s addressed Listing 2.07:

[Plaintiff]’s representative also cited from case law relating to Meniere’s disease

and treating source statements (16E/3-4). However, these arguments are

inapplicable to this case. For example, they cite to SSR 96-2p, which has been

rescinded, and 20 CFR 404.1527, which applies to cases filed prior to March 27,

2017.

Further, [Plaintiff]’s representative argued listing 2.07 was met. However, this

listing requires the following: A. Disturbed function of vestibular labyrinth

demonstrated by caloric or other vestibular tests; and B. Hearing loss established

by audiometry. There is no evidence of those requirements from the relevant period

of adjudication (from the alleged onset date to the date last insured).

(R. at 18).

Plaintiff has offered no evidence to show that she satisfied Listing 2.07 and has not come

close to “demonstrat[ing] that [she] reasonably could meet or equal every requirement of the

listing.” Smith-Johnson, 579 F. App’x at 432 (citing Sullivan, 493 U.S. at 530). Plaintiff seems

to concede this (see, e.g., Doc. 9 at 8), but criticizes the ALJ for not considering the introductory

language to Listing 2.00(C)(2), which says that for Meniere’s disease, “the severity of the

impairment is best determined after prolonged observation.” As an initial matter, the Court reads

Listing 2.00(C)(2) as complementary to Listing 2.07—not as an alternative. Further, Listing

2.00(C)(2) cannot swallow the requirement that an impairment be severe during the insured period.

But even putting those points aside, the record shows that Plaintiff was symptom-free or had

limited symptoms for many years after her successful endolymphatic mastoid shunt surgery in her

left ear. Again, Plaintiff relies exclusively on Dr. Noory’s opinion to argue otherwise. Yet, Dr.

Noory repeatedly reported that Plaintiff was not suffering from chronic medical problems for

nearly a decade after her date last insured:

• November 15, 2010: “Ms. Hall has no significant chronic medical problems.” (R. at

472).

• March 15, 2013: “Ms. Hall has no significant chronic medical problems.” (R. at 491).

• November 19, 2013: “Ms. Hall has no significant chronic medical problems.” (R. at

499).

• November 25, 2014: “Ms. Hall has no significant chronic medical problems.” (R. at

515).

• April 15, 2016: “Ms. Hall has no significant chronic medical problems.” (R. at 530).

These same records—as well as others—report Meniere’s disease under “past medical

history,” but do not report active symptoms. (See, e.g., R. at 500, 509). So there is evidence that,

for considerable time after her date last insured, Meniere’s disease was not affecting Plaintiff’s

quality of life or ability to function. Though there is some evidence that Plaintiff’s Meniere’s

disease caused symptoms intermittently many years after the date last insured (see, e.g., R. at 522,

551), that is not the question. Instead, the question is whether substantial evidence supports the

ALJ’s conclusion at step three. It does, and the ALJ did not err.

As for Plaintiff’s residual functioning capacity, the ALJ found “[i]n the alternative and

assuming arguendo that Meniere’s disease was a severe impairment:

[Plaintiff] would still have been able to perform a full range of exertional work

except she would have been able to occasionally climb ramps and stairs but never

climb ladders, ropes, or scaffolds. She could also have had no exposure to

unprotected heights, no use of dangerous machinery, and no commercial driving.

At the hearing, the undersigned asked the vocational expert whether an individual

with [Plaintiff]’s age (younger individual and closely approaching advanced age),

education (limited education), vocational profile, and residual functional capacity

could perform any of [Plaintiff]’s past work. The vocational expert testified that

such an individual would be able to perform [Plaintiff]’s past work of sandwich

maker (DOT 317.664-010, medium per DOT, light as actually performed, SVP 2)

and sales demonstrator (DOT 279.357-038, light as actually and generally

performed, SVP 3).

(R. at 18).

A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [her]

limitations.” 20 C.F.R. § 404.1545(a)(1) (2012). A claimant’s RFC assessment must be based on

all the relevant evidence in his or her case file. Id.; see also 20 C.F.R. §§ 404.1513(a), 404.1520c.

Substantial evidence supports that Plaintiff would not have needed additional work limitations due

to her Meniere’s disease. At most, Plaintiff experienced sporadic yet infrequent vertigo and

dizziness during the relevant timeframe. The limitations crafted by the ALJ account for those

symptoms, and Plaintiff has not offered record evidence to justify further limitations.

So, on this alterative basis too, the Commissioner’s decision is AFFIRMED.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that Plaintiff’s Statement of Errors (Doc. 9) is

OVERRULED, the Commissioner’s decision is AFFIRMED, and judgment is entered in favor

of the Commissioner.

IT IS SO ORDERED.

Date: March 24, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE