Opinion

Burkholder v. Kijakazi

Court: District Court, M.D. Pennsylvania
Filed: May 2, 2024
Cited by: 0 cases
Authority: More cited than 29.2%

“[T]he court has plenary review of all legal issues . . . .”

How later courts described this case

“[T]he court has plenary review of all legal issues . . . .”
comparing the substantial-evidence standard to the deferential clearly- erroneous standard
“The Secretary’s determination as to the status of a claim requires the correct application of the law to the facts.”
noting that the scope of review on legal matters is plenary

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WENDY M. BURKHOLDER, : Civil No. 1:23-CV-216

Plaintiff, :

v. : (Magistrate Judge Carlson)

MARTIN O’MALLEY,1 :

Commissioner of Social Security, :

Defendant. :

MEMORANDUM OPINION

I. Introduction

This case asks us to undertake a metaphysical analysis of whether the quantum

of evidence described as “kind of iffy” lies between a scintilla and a preponderance.

The claimant, Wendy Burkholder, protectively filed an application for a period of

disability and disability insurance benefits on February 21, 2019, alleging disability

due to supraventricular tachycardia, and other impairments, beginning May 5, 2019.

Two hearings were held before an Administrative Law Judge (“ALJ”), and the ALJ

found that Burkholder was not disabled from the date of her disability onset

1 Martin O’Malley became the Commissioner of Social Security on

December 20, 2023. Accordingly, pursuant to Rule 25(d) of the Federal Rules of

Civil Procedure and 42 U.S.C. § 405(g), Martin O’Malley is substituted for Kilolo

Kijakazi as the defendant in this suit.

application through the date of the ALJ’s decision, November 4, 2021. At Step 3 of

the sequential analysis which governs social security cases, the ALJ relied upon the

opinion of an impartial medical examiner, who testified at the hearing that it was

“kind of iffy” whether Burkholder met the requirements of the listing for her

arrythmia since the listing requires evidence of recurrent episodes of syncope, but

the device which monitors her arrythmia does not document these types of associated

symptoms. The ALJ relied upon this, at best, equivocal testimony at this crucial step

and concluded that Burkholder’s arrythmia did not meet the requirements of the

listing which would have resulted in a per se disability determination.

Burkholder now appeals this decision, arguing that the ALJ’s decision is not

supported by substantial evidence. Mindful of the fact that substantial evidence

“means only—‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion,’” Biestek, 139 S. Ct. at 1154, we find that the

ALJ’s decision to rely upon the uncertain testimony of the medical examiner at Step

3 was not supported by substantial evidence. Therefore, for the reasons set forth

below, we will remand this case for further consideration by the Commissioner.

II. Statement of Facts and of the Case

The administrative record of Burkholder’s disability application reveals the

following essential facts: Burkholder applied for disability and disability insurance

benefits on February 21, 2019, alleging disability beginning May 5, 2019.2 (Tr. 314).

She was born on February 8, 1967, and was approximately 52 years old at the time

of the alleged onset of his disability. (Tr. 317) She is a college graduate, and

previously worked as a title clerk and a behavioral specialist. (Tr. 69). In her

application for disability benefits, Burkholder alleged she was limited in her ability

to work due to supraventricular tachycardia, depression, anxiety, acid reflux, angina,

and obesity. (Tr. 385). At the disability hearing, Burkholder testified that her

supraventricular tachycardia caused symptoms like racing heart, dizziness, nausea,

and “mini-seizures” about once a month that cause her to shake and pass out. (Tr.

76-77).

Burkholder underwent an ICD placement in 2015, after being diagnosed with

supraventricular tachycardia (SVT). (Tr. 490). She continued to work after the

implantation of her ICD device but testified that she started having trouble due to

her inability to lift or be on her feet for as long and slowly decreased her hours until

she was working only about sixteen hours per week. (Tr. 80-81). She testified that

her previous employer accommodated her need to lie down and elevate her feet. (Tr.

81-81). In her function report, she stated that her SVT caused her to be tired,

2 This date was amended from January 23, 2015 to reflect the date Burkholder last

engaged in substantial gainful activity.

nauseous, have chest pains and rapid heart rate and abnormal hearth rhythms. (Tr.

405).

During the relevant period, Burkholder was being treated by a cardiologist

and her primary care physician. Since our opinion hinges primarily upon the medical

opinion evidence and the ALJ’s Step 3 analysis, we summarize only the medical

evidence as it relates to Burkholder’s symptoms related to her arrythmia. The records

show that following her ICD implant, she continued to have episodes of increased

heart rate and syncope in April and August of 2016, and treatment notes indicate that

the syncope correlated with episodes of arrythmia recorded on her ICD. (Tr. 614-

616). Although, at appointments during the relevant disability period, she frequently

denied syncope, (Tr. 552, 597, 843), she did report dizziness and palpitations at least

twice a week. (Tr. 580). There is also evidence that her defibrillator discharged due

to atrial fibrillation at least once during the relevant period, in June 2019. (Tr. 569).

Burkholder testified that when her device powered, she felt a “twinge and then a

pound” and fell down. (Tr. 48).

A telephonic disability hearing was conducted on April 2, 2021, at which

Burkholder testified about her symptoms, stating that her main symptoms were

caused by her supraventricular tachycardia (SVT), which she stated caused angina

six times a day, racing heart, dizziness, nausea, and “mini-seizures” which she

described as mild seizures that caused her to shake and fall to the floor. (Tr. 76-77).

She testified that she experiences these mini-seizures about once a month. (Id.)

The hearing was continued in order to obtain testimony from an impartial

medical expert and an impartial vocational expert. (Tr. 15). On October 26, 2021, a

supplemental telephonic hearing was conducted by the same ALJ. (Id.; Tr. 34-64).

At the October hearing, a medical examiner specializing in cardiology, Dr. LeBeau,

testified after having reviewed her file. Dr. LeBeau testified that the medical

documentation in the record showed many arrythmias but did not document the

symptoms that accompanied the arrythmias. (Tr. 40). Before testifying, he asked

Burkholder if she had ever lost consciousness due to her arrythmias, and she stated

that she had, in April and August of 2021. (Id.) When asked whether she met the

listing for arrythmia (4.05), Dr. LeBeau said “it’s kind of iffy” because there was no

medical documentation of any syncope, which the listing requires, but the ICD

device does not record the symptoms associated with arrythmia, including syncope.

(Tr. 41). He went on to state that “she has not ceased to have episodes from what she

tells us, one in April and one in August, approximately.” (Id.) After this exchange,

the ALJ moved on to obtain Dr. LeBeau’s opinion regarding her RFC, and Dr.

LeBeau opined that she had the capacity to perform light work. (Tr. 41-48).

Following the hearing, the ALJ issued a decision denying Burkholder’s

application for benefits. (Tr. 12-28). In that decision, the ALJ first concluded that

Burkholder met the insured requirements of the Act through December 31, 2024,

and had not engaged in substantial gainful activity since May 5, 2019, the alleged

onset date. (Tr. 17-18). At Step 2 of the sequential analysis that governs Social

Security cases, the ALJ found that Burkholder had the following severe impairment:

arrhythmias. (Tr. 18). The ALJ determined that Burkholder’s impairments of broken

arm, obesity, and gastroesophageal reflux disease (GERD), resulted in no more than

minimal limitations of function and concluded they were, therefore, nonsevere

impairments. (Id.)

At Step 3, the ALJ determined that Burkholder did not have an impairment or

combination of impairments that met or medically equaled the severity of one of the

disability listing impairments, considering the requirements of Section 4.05 for her

arrhythmias. The ALJ explained that the evidence of record did not support the

clinical criteria for the listing level severity. Specifically, the ALJ noted:

The claimant’s arrhythmias do not meet the requirements of Section

4.05 of the Listings, because she does not have recurrent arrhythmias,

not related to reversible causes, such as electrolyte abnormalities or

digitalis glycoside or antiarrhythmic drug toxicity, resulting in

uncontrolled recurrent episodes of cardiac syncope or near syncope,

despite prescribed treatment, and documented by resting or ambulatory

(Holter) electrocardiography, or by other appropriate medically

acceptable testing, coincident with the occurrence of syncope or near

syncope.

(Tr. 19-20).

Between Steps 3 and 4, the ALJ then fashioned a residual functional capacity

(“RFC”) for the plaintiff which considered Burkholder’s impairments as reflected in

the medical record, and found that:

After careful consideration of the entire record, the undersigned finds

that the claimant has the residual functional capacity to perform light

work as defined in 20 CFR 404.1567(b) except she can lift and/or carry

20 pounds occasionally and 10 pounds frequently; she can sit without

limitations; she can stand or walk for 5 hours each per 8 hour workday;

she can occasionally climb ramps and stairs; she can frequently

balance; she can occasionally stoop, kneel, crouch, and crawl; she

cannot climb ladders, ropes, or scaffolds; she is precluded from

overhead reaching with the bilateral upper extremities; she is precluded

from exposure to unprotected heights; she can tolerate occasional

exposure to moving machinery parts; and she is precluded from driving.

(Tr. 20).

In fashioning the RFC, the ALJ relied upon the testimony of Dr. LeBeau,

noting that Dr. LeBeau opined that Burkholder would meet Section 4.05 of the

listings if there was documentation that she became unconscious or nearly

unconscious, but that Dr. LeBeau noted there was nothing in the medical evidence

of record to support episodes of unconsciousness or near unconsciousness, which

would be required by the regulations. (Tr. 25). The ALJ found the opinion of Dr.

LeBeau to be most persuasive, noting that it was consistent with the rather benign

clinical and laboratory signs and findings of record and the treatment history. In

finding Dr. LeBeau’s opinion persuasive, the ALJ noted that the recent treatment

was conservative in nature and was essentially limited to the use of medications and

the implanted ICD, and that clinical findings showed she was in no distress and her

heart was regular with normal S1, S2 and no murmurs, rubs, or gallops. (Tr. 26-27).

Having arrived at this RFC assessment, the ALJ concluded that Burkholder

was capable of performing past relevant work as a title clerk and school aid as

generally performed. (Tr. 28). Based upon these findings, the ALJ determined that

Burkholder did not meet the stringent standard for disability set by the Act and

denied her claim. (Id.)

This appeal followed. (Doc. 1). On appeal, Burkholder argues that the ALJ

committed errors at Step 3 in finding her impairment did not meet the requirements

of the listing.3 For the reasons set forth below, we will remand this case.

3 Burkholder also argues the ALJ committed errors in the RFC assessment and in

evaluating the opinions of her treating physicians. Since we remand on the Step 3

issue, we do not address these arguments.

III. Discussion

A. Substantial Evidence Review – the Role of this Court

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether the

findings of the final decision-maker are supported by substantial evidence in the

record. See 42 U.S.C. §405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca v. Astrue, 901 F. Supp.2d 533, 536 (M.D. Pa. 2012).

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). Substantial

evidence is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a

conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”

Leslie v. Barnhart, 304 F. Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has recently underscored for us the limited scope of our

review in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout

administrative law to describe how courts are to review agency

factfinding. T-Mobile South, LLC v. Roswell, 574 U.S. ––––, ––––,

135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-

evidence standard, a court looks to an existing administrative record

and asks whether it contains “sufficien[t] evidence” to support the

agency's factual determinations. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis

deleted). And whatever the meaning of “substantial” in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial

evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see,

e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks

omitted). It means—and means only—“such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v.

Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

(comparing the substantial-evidence standard to the deferential clearly-

erroneous standard).

Biestek, 139 S. Ct. at 1154.

The question before this Court, therefore, is not whether the claimant is

disabled, but rather whether the Commissioner’s finding that he is not disabled is

supported by substantial evidence and was reached based upon a correct application

of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205,

at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s errors of law denote

a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.

Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination as to the status of

a claim requires the correct application of the law to the facts.”); see also Wright v.

Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal

matters is plenary); Ficca, 901 F. Supp.2d at 536 (“[T]he court has plenary review

of all legal issues . . . .”).

Several fundamental legal propositions which flow from this deferential

standard of review. First, when conducting this review “we are mindful that we must

not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777

F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d

Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence.

Rather our task is to simply determine whether substantial evidence supported the

ALJ’s findings. However, we must also ascertain whether the ALJ’s decision meets

the burden of articulation demanded by the courts to enable informed judicial

review. Simply put, “this Court requires the ALJ to set forth the reasons for his

decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000).

As the Court of Appeals has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for

his decision. 220 F.3d at 119. Conclusory statements . . . are

insufficient. The ALJ must provide a “discussion of the evidence” and

an “explanation of reasoning” for his conclusion sufficient to enable

meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d

501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ

particular “magic” words: “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his

analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the

ALJ’s decision under a deferential standard of review, but we must also give that

decision careful scrutiny to ensure that the rationale for the ALJ’s actions is

sufficiently articulated to permit meaningful judicial review.

B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

To receive benefits under the Social Security Act by reason of disability, a

claimant must demonstrate an inability to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A); see also 20

C.F.R. §404.1505(a). To satisfy this requirement, a claimant must have a severe

physical or mental impairment that makes it impossible to do his or her previous

work or any other substantial gainful activity that exists in the national economy. 42

U.S.C. §423(d)(2)(A); 20 C.F.R. §404.1505(a). To receive benefits under Title II of

the Social Security Act, a claimant must show that he or she contributed to the

insurance program, is under retirement age, and became disabled prior to the date on

which he or she was last insured. 42 U.S.C. §423(a); 20 C.F.R. §404.131(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. §404.1520(a). Under this process,

the ALJ must sequentially determine: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a severe impairment; (3)

whether the claimant’s impairment meets or equals a listed impairment; (4) whether

the claimant is able to do his or her past relevant work; and (5) whether the claimant

is able to do any other work, considering his or her age, education, work experience

and residual functional capacity (“RFC”). 20 C.F.R. §404.1520(a)(4).

Between Steps 3 and 4, the ALJ must also assess a claimant’s residual

functional capacity (RFC). RFC is defined as “that which an individual is still able

to do despite the limitations caused by his or her impairment(s).” Burnett v. Comm’r

of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.

§§404.1520(e), 404.1545(a)(1). In making this assessment, the ALJ considers all of

the claimant’s medically determinable impairments, including any non-severe

impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§404.1545(a)(2).

There is an undeniable medical aspect to an RFC determination, since that

determination entails an assessment of what work the claimant can do given the

physical limitations that the claimant experiences. Yet, when considering the role

and necessity of medical opinion evidence in making this determination, courts have

followed several different paths. Some courts emphasize the importance of medical

opinion support for an RFC determination and have suggested that “[r]arely can a

decision be made regarding a claimant's residual functional capacity without an

assessment from a physician regarding the functional abilities of the claimant.”

Biller v. Acting Comm'r of Soc. Sec., 962 F. Supp. 2d 761, 778–79 (W.D. Pa. 2013)

(quoting Gormont v. Astrue, Civ. No. 11–2145, 2013 WL 791455 at *7 (M.D. Pa.

Mar. 4, 2013)). In other instances, it has been held that: “There is no legal

requirement that a physician have made the particular findings that an ALJ adopts

in the course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11

(3d Cir. 2006). Further, courts have held in cases where there is no evidence of any

credible medical opinion supporting a claimant’s allegations of disability that “the

proposition that an ALJ must always base his RFC on a medical opinion from a

physician is misguided.” Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D.

Pa. 2015).

These seemingly discordant legal propositions can be reconciled by

evaluation of the factual context of these decisions. Those cases which emphasize

the importance of medical opinion support for an RFC assessment typically arise in

the factual setting where a well-supported medical source has identified limitations

that would support a disability claim, but an ALJ has rejected the medical opinion

which supported a disability determination based upon a lay assessment of other

evidence. Biller, 962 F.Supp.2d at 778–79. In this setting, these cases simply restate

the commonplace idea that medical opinions are entitled to careful consideration

when making a disability determination, particularly when those opinions support a

finding of disability. In contrast, when an ALJ is relying upon other evidence, such

as contrasting clinical or opinion evidence or testimony regarding the claimant’s

activities of daily living, to fashion an RFC courts have adopted a more pragmatic

view and have sustained the ALJ’s exercise of independent judgment based upon all

of the facts and evidence. See Titterington v. Barnhart, 174 F. App'x 6, 11 (3d Cir.

2006); Cummings v. Colvin, 129 F. Supp. 3d 209, 214–15 (W.D. Pa. 2015). In either

event, once the ALJ has made this determination, our review of the ALJ's assessment

of the plaintiff's RFC is deferential, and that RFC assessment will not be set aside if

it is supported by substantial evidence. Burns v. Barnhart, 312 F.3d 113, 129 (3d

Cir. 2002); see also Metzger v. Berryhill, No. 3:16-CV-1929, 2017 WL 1483328, at

*5 (M.D. Pa. Mar. 29, 2017), report and recommendation adopted sub nom. Metzgar

v. Colvin, No. 3:16-CV-1929, 2017 WL 1479426 (M.D. Pa. Apr. 21, 2017); Rathbun

v. Berryhill, No. 3:17-CV-00301, 2018 WL 1514383, at *6 (M.D. Pa. Mar. 12,

2018), report and recommendation adopted, No. 3:17-CV-301, 2018 WL 1479366

(M.D. Pa. Mar. 27, 2018).

At Steps 1 through 4, the claimant bears the initial burden of demonstrating

the existence of a medically determinable impairment that prevents him or her in

engaging in any of his or her past relevant work. Mason, 994 F.2d at 1064. Once this

burden has been met by the claimant, it shifts to the Commissioner at Step 5 to show

that jobs exist in significant number in the national economy that the claimant could

perform that are consistent with the claimant’s age, education, work experience and

RFC. 20 C.F.R. §404.1512(f); Mason, 994 F.2d at 1064.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, in order to facilitate review of the decision under the substantial evidence

standard, the ALJ's decision must be accompanied by “a clear and satisfactory

explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate

which evidence was accepted, which evidence was rejected, and the reasons for

rejecting certain evidence. Id. at 706-07. In addition, “[t]he ALJ must indicate in his

decision which evidence he has rejected and which he is relying on as the basis for

his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).

C. Legal Benchmarks Governing Step 3 of This Sequential Analysis

This dichotomy between the Act's deferential standard of review and

caselaw's requirement that ALJs sufficiently articulate their findings to permit

meaningful judicial review is particularly acute at Step 3 of this disability evaluation

process. At Step 3 of this sequential analysis, the ALJ is required to determine

whether, singly or in combination, a claimant's ailments and impairments are so

severe that they are per se disabling and entitle the claimant to benefits. As part of

this step three disability evaluation process, the ALJ must determine whether a

claimant's alleged impairment is equivalent to a number of listed impairments,

commonly referred to as listings, that are acknowledged as so severe as to preclude

substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt.

P, App. 1; Burnett, 220 F.3d 112, 119.

In making this determination, the ALJ is guided by several basic principles

set forth by the social security regulations and case law. First, if a claimant's

impairment meets or equals one of the listed impairments, the claimant is considered

disabled per se and is awarded benefits. 20 C.F.R. § 416.920(d); Burnett, 220 F.3d

at 119. However, to qualify for benefits by showing that an impairment, or

combination of impairments, is equivalent to a listed impairment, a plaintiff bears

the burden of presenting “medical findings equivalent in severity to all the criteria

for the one most similar impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990);

20 C.F.R. § 416.920(d). An impairment, no matter how severe, that meets or equals

only some of the criteria for a listed impairment is not sufficient. Id.

The determination of whether a claimant meets or equals a listing is a medical

one. To be found disabled under step three, a claimant must present medical evidence

or a medical opinion that his or her impairment meets or equals a listing. An

administrative law judge is not required to accept a physician's opinion when that

opinion is not supported by the objective medical evidence in the record. Maddox v.

Heckler, 619 F. Supp. 930, 935-936 (D.C. Okl. 1984); Carolyn A. Kubitschek & Jon

C. Dubin, Social Security Disability Law and Procedure in Federal Courts, § 3:22

(2014), available at Westlaw SSFEDCT. However, it is the responsibility of the ALJ

to identify the relevant listed impairments, because it is “the ALJ's duty to investigate

the facts and develop the arguments both for and against granting benefits.” Burnett,

220 F.3d at 120 n.2.

On this score, however, it is also clearly established that the ALJ's treatment

of this issue must go beyond a summary conclusion, since a bare conclusion “is

beyond meaningful judicial review.” Burnett, 220 F.3d at 119. Thus, case law “does

not require the ALJ to use particular language or adhere to a particular format in

conducting his analysis. Rather, the function ... is to ensure that there is sufficient

development of the record and explanation of findings to permit meaningful review.”

Jones, 364 F.3d at 505. This goal is met when the ALJ's decision, “read as a whole,”

id., permits a meaningful review of the SLJ's Step 3 analysis. However, when “the

ALJ's conclusory statement [at Step 3] is ... beyond meaningful judicial review,” a

remand is required to adequately articulate the reasons for rejecting the claim at this

potentially outcome-determinative stage. Burnett, 220 F.3d at 119.

D. This Case Should Be Remanded for Further Consideration.

Here, we are faced with both a fatally ambiguous medical opinion regarding

whether Burkholder’s documented arrythmia meets the disability listing and a

broadly conclusory statement by the ALJ that she did not meet the requirements of

the listing. The ALJ held a second hearing to obtain the opinion of a medical expert,

Dr. LeBeau. Before testifying, Dr. LeBeau, seemingly trying to clarify some

ambiguity in the record, stated that there were “endless electrocardiograms here with

various rhythms and so forth” and asked Burkholder if she had ever actually lost

consciousness during any of the events. (Tr. 38). Burkholder stated that she had lost

consciousness, even after the implantation of the ICD and the initial period when her

medications were being adjusted, in April and August of 2021. (Tr. 40). The doctor

went on to state:

ME: Okay. Oh, the problem is that there are many, many arrythmias

recorded – many, many and the symptoms that go with them are not

recorded. So it’s kind of useless information in a lot of ways, but that’s

what we have to deal with and I’ll go from there.

…

ALJ: So, the usual first question I ask at this point, Doctor, is whether

there are any listings met or equaled?

ME: Well, the listing we’re talking about here is 4.05 and it’s kind of

iffy because she has not ceased to have episodes from what she tells us,

one in April and one in August, approximately. Oh, if the pacer

defibrillator were working, you know, a little better I suppose she’d

have none. That’s the whole thing, oh, that 4.05 talks about just frequent

loss of consciousness or near fainting as being the criteria that you

would have to meet. She doesn’t meet any other cardiac criteria.

ALJ: Well, I take it that the records don’t identify any loss of

consciousness or near loss of consciousness?

ME: That’s exactly right. . . .

(Tr. 40-41).

Thus, at the outset, it appears Dr. LeBeau was not entirely sure whether

Burkholder met the listing based on the available evidence, stating that it was “kind

of iffy4.” He went on to explain that her records did show at least one instance where

she went into ventricular fibrillation which triggered her ICD device, but her heart

went back to normal rhythm before it fired and she “probably had no symptoms,”

despite Burkholder’s prior testimony that she had fallen down when her device fired.

(Tr. 48). He went on to explain, “but, again, they don’t record symptoms with these

things. They just record for the electrocardiograms.” (Id.) In fact, it does not appear

from Dr. LeBeau’s testimony that he was entirely sure whether Burkholder had ever

4 Cambridge Dictionary defines “iffy” as “not certain or decided.” Cambridge

Advanced Learner’s Dictionary & Thesaurus, Cambridge University Press, 2024.

This definition reveals precisely what is wrong with this Step 3 analysis. If the sole

testifying expert says that the claimant’s status is not certain or decided, then any

Step 3 decision –either pro or con – simply is not possible.

experienced syncope or whether her pacemaker had ever fired, stating “to my

knowledge the pacemaker has never gone – and it almost went off once, but never

has gone off in her, that I know of. She’ll correct me if that is correctable.”5 (Tr. 44).

The conversation continues with Dr. LeBeau’s opinion that Burkholder could

perform light work. (Id.)

The ALJ relied heavily on Dr. LeBeau’s opinion in the decision, finding his

testimony to be “most persuasive.” However, the ALJ did not explain or resolve the

ambiguities in Dr. LeBeau’s testimony regarding the Step 3 analysis, simply stating

in a conclusory manner: