“[The Social Security Administration] has set the medical criteria defining the listed impairments at a higher level of severity than the statutory [disability] standard.”
How later courts described this case
- “[The Social Security Administration] has set the medical criteria defining the listed impairments at a higher level of severity than the statutory [disability] standard.”
- “An impairment that manifests only some of those criteria [in a listing], no matter how severely, does not qualify.”
- observing that “[n]o principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different result”
- noting that “hallmark of light exertion work is that it ‘requires a good deal of walking or standing - the primary difference between sedentary and most light jobs’” (emphasis supplied by Plaintiff
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALAH DAYWALT, )
)
Plaintiff, )
)
v. ) 1:20CV277
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social )
Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Alah Daywalt, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security, denying Plaintiff’s claim for Supplemental Security
Income (“SSI”). (Docket Entry 1.) Defendant has filed the
certified administrative record (Docket Entry 11 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 13, 15; see also Docket Entry 14 (Plaintiff’s Memorandum);
Docket Entry 16 (Defendant’s Memorandum); Docket Entry 17
(Plaintiff’s Reply)). For the reasons that follow, the Court
should enter judgment for Defendant.
1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties
need take any further action to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I. PROCEDURAL HISTORY
Plaintiff applied for SSI, alleging a disability onset date of
January 5, 2016 (Tr. 177-86) and, upon denial of that application
initially (Tr. 68-80, 95-98), and on reconsideration (Tr. 81-94,
106-15), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 116-18). Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 28-67.) The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act. (Tr. 9-27.) The Appeals
Council denied Plaintiff’s request for review (Tr. 1-6, 173-76),
thereby making the ALJ’s ruling the Commissioner’s final decision
for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings, later adopted by the Commissioner:
1. [Plaintiff] has not engaged in substantial gainful
activity since March 22, 2016, the application
date.
2. [Plaintiff] has the following severe impairments:
diabetes mellitus, hyperlipidemia, status post
[cerebrovascular accident (“CVA”)] with residual
hemiparesis; obesity; coronary artery disease,
status post myocardial infarction and status post
[automated implantable cardioverter defibrillator
(“AICD”)] placement.
. . .
3. [Plaintiff] 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.
2
. . .
4. . . . [Plaintiff] has the residual functional
capacity to perform light work . . . except
frequent climbing of ramps and stairs, but only
occasional climbing of ladders (up to 4-vertical
feet in height). No climbing of higher ladders or
of ropes or scaffolds of any height. Frequent
balancing, stooping, kneeling and crouching;
occasional crawling; frequent reaching, handling,
fingering, pushing and pulling with the left upper
(non-dominant) extremity. Frequent pushing and
pulling with the left lower extremity. Occasional
exposure to extreme cold and heat. Occasional
exposure to vibration, atmospheric conditions,
moving mechanical parts and high exposed place
[sic]. No production pace work on assembly lines.
May not work in close proximity (i.e. within 15-
feet) of power generators, arc welding equipment,
jumper cables or equipment utilizing powerful
magnets such as MRI equipment, electromagnetic
lifting equipment and similar industrial equipment.
. . .
5. [Plaintiff] has no past relevant work.
. . .
9. Considering [Plaintiff]’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that [she] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the . . . Act, since March 22, 2016, the
date the application was filed.
(Tr. 14-22 (bold font and internal parenthetical citations
omitted).)
3
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.” Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope of
[the Court’s] review of [such a] decision . . . is extremely
limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a
reviewing court must uphold the factual findings of the ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (brackets and internal quotation marks omitted). “If
there is evidence to justify a refusal to direct a verdict were the
4
case before a jury, then there is substantial evidence.” Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘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,’” id.
5
(quoting 42 U.S.C. § 423(d)(1)(A)).2 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account a claimant’s age, education, and work experience in
addition to [the claimant’s] medical condition.” Id. “These
regulations establish a ‘sequential evaluation process’ to
determine whether a claimant is disabled.” Id. (internal citations
omitted).
This sequential evaluation process (“SEP”) has up to five
steps: “The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any
other work.” Albright v. Commissioner of Soc. Sec. Admin., 174
F.3d 473, 475 n.2 (4th Cir. 1999).3 A finding adverse to the
claimant at any of several points in the SEP forecloses an award
2 The Act “comprises two disability benefits programs. The Disability
Insurance Benefits Program provides benefits to disabled persons who have
contributed to the program while employed. [SSI] . . provides benefits to
indigent disabled persons. The statutory definitions and the regulations . . .
for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).
3 “Through the fourth step, the burden of production and proof is on the
claimant. If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
and ends the inquiry. For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful activity.’
If the claimant is working, benefits are denied. The second step
determines if the claimant is ‘severely’ disabled. If not,
benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th
Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].” Id. at 179.4 Step four
then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant
does not qualify as disabled. See id. at 179-80. However, if the
claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
4 “RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
7
both [the claimant’s RFC] and [the claimant’s] vocational
capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the
government cannot carry its “evidentiary burden of proving that
[the claimant] remains able to work other jobs available in the
community,” the claimant qualifies as disabled. Hines, 453 F.3d at
567.5
B. Assignments of Error
Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to adequately evaluate and
account for the effects of Plaintiff’s [shortness of breath
(‘SOB’)] and edema due to chronic [congestive heart failure
(‘CHF’)] when assessing her RFC” (Docket Entry 14 at 4 (bold font
and single-spacing omitted));
2) “[t]he ALJ erred by failing to adequately evaluate and
account for the effects of Plaintiff’s [lower left extremity
(‘LLE’)] sensation loss when assessing her ability to work” (id. at
11 (bold font and single-spacing omitted));
5 A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
3) “[t]he ALJ erred in his treatment of the medical opinion
evidence” (id. at 13 (bold font omitted); see also Docket Entry 17
at 1-3); and
4) “[t]he ALJ erred by failing to evaluate whether Plaintiff’s
CHF medically equals Listing 4.02” (Docket Entry 14 at 16 (bold
font and single-spacing omitted); see also Docket Entry 17 at 3-5).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (See Docket Entry 16 at 10-24.)
1. Additional Standing and Walking Limitations
In Plaintiff’s first and second assignments of error, she
maintains that “[t]he ALJ failed to adequately evaluate and account
for the effects of Plaintiff’s SOB and edema due to chronic CHF
when assessing her RFC” (Docket Entry 14 at 4 (bold font and
single-spacing omitted)), and “failed to adequately evaluate and
account for the effects of Plaintiff’s LLE sensation loss when
assessing her ability to work” (id. at 11 (bold font and single-
spacing omitted)).6 For the reasons that follow, those assertions
entitle Plaintiff to no relief.
RFC measures the most a claimant can do despite any physical
and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.
§ 416.945(a). An ALJ must determine a claimant’s exertional and
non-exertional capacity only after considering all of a claimant’s
6 Due to the similarities in Plaintiff’s first and second assignments of
error, the undersigned will address them together.
9
impairments, as well as any related symptoms, including pain. See
Hines, 453 F.3d at 562–63; 20 C.F.R. § 416.945(b). The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy). See 20 C.F.R. § 416.967. Any non-exertional limitations
may further restrict a claimant’s ability to perform jobs within an
exertional level. See 20 C.F.R. § 416.969a(c).
“The RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations). . . . The [ALJ]
must also explain how any material inconsistencies or ambiguities
in the evidence in the case record were considered and resolved.”
Social Security Ruling 96-8p, Policy Interpretation Ruling Titles
II and XVI: Assessing Residual Functional Capacity in Initial
Claims, 1996 WL 374184, at *7 (July 2, 1996) (“SSR 96-8p”).
Although the ALJ need not discuss every piece of evidence in making
an RFC determination, see Reid v. Commissioner of Soc. Sec., 769
F.3d 861, 865 (4th Cir. 2014), he or she “must both identify
evidence that supports his [or her] conclusion and build an
accurate and logical bridge from that evidence to [that]
conclusion,” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)
(internal emphasis, quotation marks, and brackets omitted). Here,
as explained in more detail below, the ALJ’s decision supplies the
10
necessary “accurate and logical bridge,” id. (internal quotation
marks omitted), between his discussion of the evidence and the RFC
assessment.
a. SOB, Fatigue, and Edema
Plaintiff first contends that, in light of her testimony
regarding difficulty breathing, fatigue, and lower extremity
swelling (see Docket Entry 14 at 4-5 (citing Tr. 39, 41-44, 47-49,
54-55)), the ALJ did not sufficiently explain his finding that
Plaintiff remained capable of performing “the full walking and
standing range of light work” (id. at 5), and failed to build “an
‘accurate and logical bridge’” from the evidence to that conclusion
(id. at 6 (quoting Woods, 888 F.3d at 694)). According to
Plaintiff, “completely absent from [the ALJ’s] decision is any real
discussion of how [Plaintiff’s] SOB upon exertion, fatigue and
edema due to chronic CHF do not limit her to walking short
distances, taking breaks from activity every few minutes or having
to elevate her feet when they swell as she testified.” (Id.)
Plaintiff characterizes the ALJ’s error in that regard as “very
harmful,” arguing that, “despite the ALJ’s impression that
[Plaintiff]’s heart problems largely subsided after her January
2016 heart attack, stenting procedures and [A]ICD placement, the
record actually reveals that she continued to suffer from ongoing,
serious symptoms from CHF including listing level depressed left
ventricular (‘LV’) functioning.” (Id. (internal parenthetical
11
citations omitted); see also id. at 6-10 (detailing evidence
Plaintiff believes supports the inclusion in the RFC of greater
standing and walking restrictions, as well as additional breaks to
permit her to elevate her feet (citing Tr. 269-73, 280, 298-99,
344, 364, 376, 401, 408, 412, 414, 461, 476, 482-83, 486, 490-91,
494, 513, 562, 564, 572-73, 605-06, 642, 654, 657-58, 668, 693,
695, 703-05, 765-66, 769-70, 780, 782, 786, 788, 790, 799, 802-03,
816, 903, 905, 910, 912-13, 920-21, 941, 946, 968)).) Those
arguments fall short.
As an initial matter, the ALJ acknowledged Plaintiff’s
testimony that her heart condition “affects her ability to breathe”
as well as that “her feet swell and she becomes very tired” (Tr.
16; see also Tr. 39); however, the ALJ found Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of th[o]se symptoms [] not entirely consistent with the
medical evidence and other evidence in the record for the reasons
explained in th[e ALJ’s] decision” (Tr. 19). Significantly,
Plaintiff did not challenge the ALJ’s finding in that regard. (See
Docket Entries 14, 17.)
Moreover, the evidence Plaintiff cites would not have
compelled the ALJ to adopt greater standing and walking limitations
or include in the RFC additional breaks to allow Plaintiff to
elevate her feet. Although a transthoracic echocardiogram (“ECG”)
on October 13, 2017, reflected a left ventricular ejection fraction
12
(“LVEF”) of 30 to 35 percent (see Tr. 815-16), that result,
standing alone, does not establish that Plaintiff experienced
severe SOB, fatigue, and/or edema during that time, particularly
when contemporaneous records reflect normal findings in that regard
(see Tr. 769-71 (9/3/17 - oxygen saturation 100%, normal breath
sounds, no edema), 780-86 (10/8/17 - tachycardia but no edema,
negative chest x-ray, oxygen saturation 100% on room air), 790
(10/21-10/22/17 - slight wheezing in setting of asthma exacerbation
due to exposure to bonfire and cigarettes but oxygen saturation
100% on room air, no edema), 799 (10/9/17 - tachycardia but oxygen
saturation 100% on room air)).’
Plaintiff further maintains that “[h]er LVEF was remeasured in
December of 2017 [at] only 20%” (Docket Entry 14 at 9 (citing Tr.
968)) and “again measured at only 20%” on May 10, 2018 (id. at 10
(citing Tr. 941)). That evidence, however, consists of AICD
interrogation reports which merely listed Plaintiff’s LVEF at the
time of the AICD’s implantation on January 15, 2016. (Compare Tr.
941 (5/10/18 - LVEF 20%), 968 (12/13/17 - LVEF 20%), with Tr. 272,
288, 297-98, 331-333 (1/5/16 - LVEF 20-25%).) Indeed, the report
dated December 13, 2017, lacks any specific findings and a
clinician’s signature (see Tr. 968-72), and the report of May 10,
2018, shows 19 instances of non-sustained supraventricular
7 Additionally, an ECG performed less than two months earlier (on August
18, 2017) measured Plaintiff’s LVEF at 50 to 55 percent. (See Tr. 749.)
13
tachycardia (“SVT”) on December 18, 2017, in the setting of
significant gastrointestinal upset and dehydration but otherwise
normal sinus rhythm (see Tr. 941-47).
Furthermore, a large portion of the evidence upon which
Plaintiff relies pertains to the time period during which Plaintiff
suffered two acute, cardiovascular events, i.e., her heart attack
and stroke in January and March 2016, respectively (see Docket
Entry 14 at 6-7 (citing Tr. 269-73, 280, 298-99, 344, 364, 376,
401, 408, 412, 414, 461, 476, 486, 490-91, 494)); however, the ALJ
clearly acknowledged the seriousness of both events, as he found at
step two that Plaintiff suffered from severe “status post CVA with
residual hemiparesis” and severe “status post myocardial infarction
[with] AICD placement” (Tr. 14) and discussed both hospitalizations
in a fair amount of detail in connection with his RFC analysis
(see Tr. 17). Moreover, as such evidence reflects Plaintiff’s
symptoms during and in the immediate aftermath of her heart attack
and stroke, it does not support Plaintiff’s argument that the ALJ
erroneously found that Plaintiff’s “heart problems largely subsided
after her January 2016 heart attack, stenting procedures and [A]ICD
placement” (Docket Entry 14 at 6 (emphasis added)).
The remaining evidence cited by Plaintiff, only some of which
reflects her subjective complaints of SOB, leg swelling, and
fatigue (which the ALJ discounted (see Tr. 19)), contains
objectively normal findings in those areas (see Tr. 482-83 (4/19/16
14
- no edema, no dyspnea, good air movement, normal gait, strength
improved), 512-13 (5/24/16 - normal ambulation, no edema, no
dyspnea, good air movement), 572-73 (6/27/16 - no dyspnea, good air
movement, no edema, normal gait, full strength), 605-07 (10/27/16 -
no edema, good air movement, full strength, overall doing great,
essentially no residual deficits from CVA), 642 (10/28/16 - oxygen
saturation 100% on room air, normal ambulation, no dyspnea, good
air movement, full strength, no edema, normal sensation, reflexes,
pulses, and coordination), 654-58 (4/3/17 - noting cane usage and
irregular gait but no dyspnea, good air movement, full strength, no
edema, no signs of CHF decompensation), 668-72 (1/4/17 - noting
multiple visits to emergency room for nausea and vomiting but
oxygen saturation 100% on room air), 693-95 (5/4/17 - normal chest
x-ray, normal strength and sensation), 703-05 (6/4/17 - no edema),
765-66 (7/4/17 - decreased breath sounds in lung bases and trace
edema, but oxygen saturation 100% on room air, chest x-ray
negative, full strength, normal pulses), 769-71 (9/3/17 - oxygen
saturation 100%, normal breath sounds, no edema), 780-86 (10/8/17 -
tachycardia but no edema, negative chest x-ray, oxygen saturation
100% on room air), 790 (10/21-10/22/17 - slight wheezing in setting
of asthma exacerbation due to exposure to bonfire and cigarettes
but oxygen saturation 100% on room air, no edema), 799 (10/9/17 -
tachycardia but oxygen saturation 100% on room air), 802-03
(10/16/17 - Holter Monitor report showing rare premature
15
ventricular contractions (“PVCs”), no ventricular tachycardia, no
atrial fibrillation, and no evidence of “re-entrant”
supraventricular tachycardia (“SVT”), 903 (6/29/17 - negative chest
x-ray), 905 (7/28/17 - negative chest x-ray), 910-13 (5/10/18 -
doing well, looks better than previous visits, oxygen saturation
100%, normal gait), 920-21 (5/24/18 - stable CHF, doing well except
right arm pain and heartburn, oxygen saturation 99%)).
Put simply, Plaintiff has not shown that the ALJ improperly
evaluated Plaintiff’s complaints of SOB, fatigue, and edema.
b. LLE Sensation Loss
With regard to Plaintiff’s loss of sensation in the LLE, she
faults the ALJ for failing to “reconcile how [Plaintiff’s] LLE
numbness allow[ed] her to stand and walk for a majority of the day”
as required by the light-exertion RFC. (Docket Entry 14 at 11.)
Plaintiff deems that error “harmful, as the record reveals,
consistent with her testimony, that she completely lacks sensation
in the left foot (to allow for proper proprioception) since her
March 2016 stroke.” (Id. (emphasis added); see also id. at 11-12
(describing evidence Plaintiff contends supports greater standing
and walking restrictions in the RFC (citing Tr. 370, 375, 379, 382,
385-86, 498, 575, 580-83, 645, 662, 645, 688, 690, 728, 742,
916)).) Those contentions fail to warrant remand.
Here, the ALJ acknowledged Plaintiff’s testimony that she
constantly experiences “pain and a tingly feeling in the bottom of
16
both feet and her toes” (Tr. 17; see Tr. 41-42) but, as explained
above, found that “[Plaintiff]’s statements concerning the
intensity, persistence and limiting effects of [her] symptoms
[we]re not entirely consistent with the medical evidence and other
evidence in the record” (Tr. 19), and Plaintiff did not contest
that finding (see Docket Entries 14, 17.) Moreover, in further
support of that finding, the ALJ noted that he “afforded
[Plaintiff] the benefit of the doubt, when evaluating the
consistency of her statements with the findings in the objective
medical evidence” (Tr. 18), and recognized that, despite
Plaintiff’s claim of LLE numbness, “[i]n general, [Plaintiff]’s
gait [was] normal, with only a few instances of irregular or
abnormal gait noted.” (Tr. 18; see also Tr. 20 (“[G]ait [wa]s
generally documented as normal without any mention of an assistive
device.”).) The ALJ further observed that, although Plaintiff had
“balance difficulty initially after her stroke,” the record
contained “no consistent documented use of a cane apart from a note
in April 2017.” (Id.)
Furthermore, the evidence Plaintiff cites would not have
compelled the ALJ to find greater standing and walking limitations
to account for Plaintiff’s LLE sensation loss. To the extent
Plaintiff relies on medical records generated at the time of her
stroke in March 2016 (see Docket Entry 14 at 11-12 (citing Tr. 370,
375, 379, 382, 386)), such evidence does not bolster Plaintiff’s
17
argument “that she completely lack[ed] sensation in her left foot
(to allow for proper proprioception) since her March 2016 stroke”
(id. at 11 (emphasis added)). Other evidence to which Plaintiff
points contains objective findings of LLE numbness, but lacks any
indication that such numbness impacted Plaintiff’s ability to stand
and walk. (See Tr. 498-500 (4/19/16 - cardiologist office visit
describing “only residual deficit” from Plaintiff’s stroke as “left
foot numbness” and characterizing same as amounting to “essentially
no residual deficits,” as well as noting Plaintiff “doing great”
and could “shop in Wal-Mart without issues”), 645 (9/27/16 -
primary care physician finding no sensation in left foot but noting
normal ambulation, gait, and station), 662 (2/22/17 - same), 667
(2/6/17 - same), 728-42 (8/18/17 - hospitalization for LLE numbness
which resolved in 15 to 30 minutes with Plaintiff able to
ambulate), 916 (1/8/18 - primary care visit for blisters on feet
resulting from Plaintiff’s inability to feel foot warmers) .)*®
Still other evidence relied upon by Plaintiff, although in
large part reflecting her subjective complaints of LLE numbness
(which the ALJ discounted (see Tr. 19)), documents objectively
® Significantly, during that hospitalization, Plaintiff advised her
treatment providers that she “typically” experienced “paresthesias,” but that
this total loss of sensation “was different.” (Tr. 728.) Plaintiff further
“endorsed previous history for diabetic neuropathy,” but “denied ever having any
focal neurologic deficits” or the “severe symptomatology she felt earlier” that
day. (Tr. 731.) Thus, despite Plaintiff’s claim that she “completely lacked
sensation in her left foot” (Docket Entry 14 at 11 (emphasis added)), she
admitted that a total loss of sensation in her left foot occurred on only this
one occasion, may have resulted from her sleeping on her left side (see Tr. 732),
and resolved within 15 to 30 minutes (see Tr. 728).
18
normal findings (see Tr. 575 (6/27/16 - primary care visit noting
worsening diabetes mellitus but reflecting no complaints of LLE
numbness and grossly intact sensation), 580-83 (8/11/16 -
consultative medical examination documenting complaints of left
foot numbness but no finding of decreased sensation), 688-90
(5/9/17 - cardiologist office visit noting Plaintiff’s report that
she used cane for left foot numbness but finding no focal
neurologic deficits and stating Plaintiff “doing great”).
Accordingly, Plaintiff has failed to establish that the ALJ
erred in evaluating her LLE loss of sensation and thus her second
issue on review (like her first issue on review) falls short.
2. Evaluation of Medical Opinions
Plaintiff contends that the ALJ committed reversible error of
law by failing to “consider all medical opinions given in the case,
assess the weight given to each opinion,” and explain the conflicts
between the medical opinions and the RFC in his decision. (Docket
Entry 14 at 13 (bold font and capitalization omitted) (citing 20
C.F.R. § 404.1527(b), and SSR 96-8p); see also Docket Entry 17 at
1-3.) In particular, Plaintiff asserts that the ALJ failed to
“evaluate and assign weight to [emergency room physician Dr. Daniel
T. Goodberry’s] medical opinion” that Plaintiff must “rest four
times per day as well as elevate her arms and legs particularly at
night” (Docket Entry 14 at 13 (citing Tr. 705)), failed to provide
an adequate rationale for discounting the opinion of treating
19
cardiologist Dr. Brandon N. Williams that Plaintiff could not
“stand for a long time, walk or complete physical tasks as
individuals with normal heart functioning would have no problem
doing” (id. (citing Tr. 564)), and “wholly failed to mention, much
less evaluate and assign weight to Dr. Williams’[s] May 10, 2018
finding that [Plaintiff] suffered from New York Heart Association
(‘NYHA’) Stage III heart failure” (id. at 15 (citing Tr. 941,
947)). Those arguments fail as a matter of law.
a. Dr. Goodberry
Dr. Goodberry, as a one-time emergency room examiner, does not
constitute a treating source under the regulations (see 20 C.F.R.
§ 416.927(c)(2)) and thus his opinions, as a general proposition,
do not warrant controlling weight, see Turberville v. Colvin, No.
1:11CV262, 2014 WL 1671582, at *6 (M.D.N.C. Apr. 23, 2014)
(unpublished), recommendation adopted, slip op. (M.D.N.C. May 15,
2014) (Eagles, J.). The ALJ must nevertheless evaluate Dr.
Goodberry’s opinions using the factors outlined in the regulations
and expressly indicate and explain the weight he or she affords to
such opinions. See 20 C.F.R. § 416.927(c) (“Regardless of its
source, [the ALJ] will evaluate every medical opinion [he or she]
receive[s]” and, where an opinion does not warrant controlling
weight, the ALJ must “consider all of the . . . factors [in 20
C.F.R. § 416.927(c)(1)-(6)] in deciding the weight [to] give to any
medical opinion.”); Social Security Ruling 96-5p, Medical Source
20
Opinions on Issues Reserved to the Commissioner, 1996 WL 374183, at
5* (July 2, 1996) (“SSR 96-5p”) (noting that ALJs “must weigh
medical source statements . . . [and] provid[e] appropriate
explanations for accepting or rejecting such opinions” (emphasis
added).9
Here, although the ALJ did not expressly discuss or weigh Dr.
Goodberry’s recommendation that Plaintiff must rest four times per
day and elevate her arms and legs (Tr. 705), the ALJ did
acknowledge Plaintiff’s June 2017 emergency room visit with Dr.
Goodberry, noting that Plaintiff “was negative for complaints of
weakness, with a physical examination that was within normal
limits” (Tr. 18 (citing Tr. 703)), and made “no reports of muscle
aches or weakness” (id. (citing Tr. 703-04)).
Moreover, the ALJ’s omission of an express discussion and
weighing of Dr. Goodberry’s recommendation does not constitute
error, because the recommendation fails to qualify as a medical
9 For benefits applications filed on or after March 27, 2017, the SSA has
enacted substantial revisions to the regulations governing the evaluation of
opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new
regulations, ALJs are no longer required to assign an evidentiary weight to
medical opinions or to accord special deference to treating source opinions. See
20 C.F.R. § 416.920c(a) (providing that ALJs “will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or
prior administrative medical finding(s), including those from [a claimant’s]
medical sources”). Instead, an ALJ must determine and “articulate in [the] . . .
decision how persuasive [he or she] find[s] all of the medical opinions and all
of the prior administrative medical findings in [a claimant’s] case record.” 20
C.F.R. § 416.920c(b) (emphasis added). In light of these changes to the rules
governing the evaluation of opinion evidence, the SSA has also rescinded SSR
96-5p for claims filed on or after March 27, 2017. See 82 Fed. Reg. 15263 (Mar.
27, 2017). As Plaintiff applied for SSI prior to March 27, 2017 (see Tr. 177-
86), this Recommendation will apply the regulations and rulings in effect at the
time of Plaintiff’s SSI application.
21
opinion under the regulations. “Medical opinions are statements
from acceptable medical sources that reflect judgments about the
nature and severity of [the plaintiff’s] impairment(s), including
[the plaintiff’s] symptoms, diagnosis and prognosis, what [the
plaintiff] can still do despite impairment(s), and [the
plaintiff’s] physical or mental restrictions.” 20 C.F.R.
§ 416.927(a)(1) (emphasis added). A recommendation that a patient
undertake certain ameliorative measures does not equate to a
physical restriction or a judgment about what Plaintiff can still
do despite her impairments. See Cruz v. Commissioner of Soc. Sec.
Admin., No. CV-19-04460, 2020 WL 3567033, at *2 (D. Ariz. July 1,
2020) (unpublished) (holding that “the ALJ was not obligated to
include a need to elevate the legs when sitting in the RFC finding”
or “to address that statement as a medical opinion,” because the
doctor “merely recommended that [the p]laintiff elevate her legs
when sitting” and “did not state it was necessary for work”
(internal quotation marks and brackets omitted)), appeal filed, No.
20-16651 (9th Cir. Aug. 26, 2020); Valentine v. Commissioner of
Soc. Sec. Admin., No. 1:18CV1887, 2019 WL 4395177, at *11 (N.D.
Ohio July 23, 2019) (unpublished) (finding doctor’s
“recommend[ation] . . . that [the plaintiff] elevate his legs to
treat his varicose veins” and “discharge instructions after an
emergency room visit . . . to elevate his legs above the level of
[his] heart when at rest” failed to qualify as “medical opinions
22
that [the plaintiff]’s varicose veins caused work-related
functional limitations” (internal quotation marks omitted)),
recommendation adopted, 2019 WL 4394168 (N.D. Ohio Sept. 13, 2019)
(unpublished); Inscho v. Commissioner of Soc. Sec., No. CV 17-114,
2018 WL 4184340, at *1 n.2 (W.D. Pa. Aug. 31, 2018) (unpublished)
(deeming the plaintiff’s “portray[al of consultative psychological
examiner]’s observations as an opinion as to [the p]laintiff’s
work-related limitations [] simply inaccurate,” because “the
section of the evaluation labeled ‘Recommendations,’ the section
that came closest to offering opinions, set forth actions and
situations from which [the p]laintiff would benefit, not things
that she could or could not do”); Carpenter v. Berryhill, Civ. No.
16-179, 2017 WL 2909413, at *2 (E.D. Ky. May 12, 2017)
(unpublished) (noting lack of clarity whether cardiologist’s
“advice that [the plaintiff] elevate his legs qualifie[d] as a
‘medical opinion,’” because recommendation “never specified how
high, how often, or for how long” the plaintiff must “elevate his
legs” and “failed to explain how his treatment recommendation would
restrict [the plaintiff]’s physical activity or limit his ability
to perform work-related functions”). As Dr. Goodberry’s
recommendation did not constitute a medical opinion, the ALJ acted
properly in not assigning it weight.
In Plaintiff’s Reply, she contends that the United States
Court of Appeals for the Fourth Circuit recently held that “a
23
physician’s directive to a patient to elevate her legs
constitute[d] a medical opinion that require[d] weighing.” (Docket
Entry 17 at 2 (emphasis added) (citing Stoker v. Saul, 833 F. App’x
383 (4th Cir. 2020)).) According to Plaintiff, “as was the case in
Stoker, Dr. Goodberry’s directive is consistent with and bolsters
the supportability of [Plaintiff]’s testimony that she must elevate
her feet when they swell.” (Id. (emphasis added) (citing Tr. 39,
54) .)
Plaintiff’s reliance on Stoker falls short. In that case, the
Fourth Circuit rejected the ALJ’s rationale for discounting the
treating physician’s opinion that the plaintiff needed to elevate
his legs while sitting because the physician’s treatment notes
lacked any such instruction. See Stoker, 833 F. App’x at 387 (“The
absence of a physician’s instruction or work restriction from
treatment notes does not necessarily impact the credibility of the
physician’s opinion that the instruction or restriction would
affect the claimant’s ability to work.”)}. Thus, the Fourth Circuit
addressed an opinion (or “directive” as Plaintiff called it (Docket
Entry 17 at 2)) from a treating physician, rather than, as here, a
recommendation from a one-time, emergency room physician. See id.
As a result, the Fourth Circuit did not reach the issue confronting
the Court here of whether such a recommendation even qualifies as
a “medical opinion” under Section 916.927(a) (1) in the first
instance.
24
Nevertheless, even if Dr. Goodberry’s recommendation amounted
to a medical opinion, the ALJ’s failure to assign it weight would
amount to harmless error. See generally Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of
administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result”). Dr. Goodberry
provided his recommendation in the setting of a one-time emergency
room examination, at which Plaintiff presented with complaints of
lower extremity swelling that had resolved by the time of admission
and, consistently, Dr. Goodberry found no edema on examination.
(See Tr. 703-05.) Moreover, none of Plaintiff’s treating doctors
over the course of her extensive treatment history offered opinions
that Plaintiff’s impairments required her to elevate her legs (or
arms) or to rest periodically throughout the day, thus indicating
that Dr. Goodberry’s recommendation amounted to nothing more than
an isolated suggestion. Finally, Dr. Goodberry’s recommendation
that Plaintiff elevate her arms and legs “particularly at night
while sleeping” (Tr. 705 (emphasis added)) would have no bearing on
Plaintiff’s ability to perform work-related activities.
Under these circumstances, Plaintiff’s challenge to the ALJ’s
failure to discuss and weigh Dr. Goodberry’s recommendation
entitles her to no relief.
25
b. Dr. Williams
Plaintiff first objects to the ALJ’s decision to discount Dr.
Williams’s August 2016 opinion that Plaintiff could not “stand for
a long time, walk, or complete physical tasks as individuals with
normal heart functioning would have no problem doing” (Docket Entry
14 at 14 (citing Tr. 564)), because the opinion lacked “‘vocational
[sic] specific terms/limitations’” (id. (quoting Tr. 21)).
According to Plaintiff, Dr. Williams’s opinion “runs in direct
conflict with the ALJ’s RFC for light standing and walking . . .
without even a limitation on [Plaintiff’s] ability to stand or walk
at one time.” (Id.; see also id. (noting that “hallmark of light
exertion work is that it ‘requires a good deal of walking or
standing - the primary difference between sedentary and most light
jobs’” (emphasis supplied by Plaintiff) (quoting Social Security
Ruling 83-10, Titles II and XVI: Determining Capability to Do Other
Work – the Medical-Vocational Rules of Appendix 2, 1983 WL 31251,
at *5 (1983) (“SSR 83-10”))).) Plaintiff’s argument misses the
mark.
The ALJ did not err by finding that Dr. Williams’s opinion
lacked “vocational [sic] specific terms/limitations.” (Tr. 21.)
Without quantifying “a longtime [sic]” (Tr. 564), Dr. Williams’s
opinion lends little guidance to the ALJ in determining how long
Plaintiff could stand. Moreover, by opining that Plaintiff could
not “walk or complete physical tasks” to the extent individuals
26
with normal heart functioning could (Tr. 564), Dr. Williams merely
indicated that Plaintiff had some, unquantified restriction in her
ability to walk and complete physical tasks. See Bennett v.
Commissioner of Soc. Sec., No. 1:07CV1005, 2011 WL 1230526, at *4
(W.D. Mich. Mar. 31, 2011) (unpublished) (characterizing
podiatrist’s “advil[ce] only against a ‘long period’ of standing and
walking, without specifying what constituted a long period” as “too
vague and conclusory to . . . be entitled to deference”). Under
such circumstances, the ALJ properly afforded Dr. Williams’s August
2016 letter limited weight. (See Tr. 21.)
Next, Plaintiff contends that an AICD interrogation report
dated May 10, 2018, which lists Plaintiff’s “NYHA Class” as “III”
qualifies as a “medical opinion” from Dr. Williams which the ALJ
failed to weigh (see Docket Entry 14 at 15 (citing Tr. 941, 947)),
because such a classification constitutes “an expression of how
symptoms limit an individual” (id. (citing Reed v. Berryhill, 337
F. Supp. 3d 525, 528 (E.D. Pa. 2018), and Rawlings v. Colvin, No.
3:14CV159, 2015 WL 3970608, at *7 (S.D. Ohio June 30, 2015)
(unpublished)); see also Docket Entry 17 at 2-3). According to
Plaintiff, “the whole purpose of the NYHA classification system is
to grade the individuals [sic] symptoms and functional limitations”
(Docket Entry 17 at 2) and “Class III heart failure patients have
‘cardiac disease resulting in marked limitation of physical
activity’” where “‘[l]Jess than ordinary activity causes fatigue,
27
palpitation, dyspnea, or anginal pain’” (id. at 2-3 (quoting The
Criteria Committee of the New York Heart Association, Nomenclature
and Criteria for Diagnosis of Diseases of the Heart and Great
Vessels, 253-56 (Little, Brown & Co. 9th ed. 1994)). Plaintiff
additionally appears to believe that the fact that Dr. Williams’s
electronic signature appears on the document further suggests that
the report constitutes Dr. Williams’s medical opinion. (See Docket
Entry 14 at 15 (citing Tr. 947).)
Plaintiff’s argument falters, because the notation in question
appears on an AICD interrogation report which, as discussed above
in connection with Plaintiff’s first issue on review, appears to
list Plaintiff’s heart condition, i.e., LVEF 20% and NYHA Class
III, at the time of her AICD implantation. (Tr. 941.) An ECG on
August 18, 2017, measured Plaintiff’s LVEF at 50 to 55 percent (see
Tr. 749), and a transthoracic ECG dated October 13, 2017, reflected
an LVEF of 30 to 35 percent (see Tr. 815-16); yet, the
interrogation report occurring months later in May 2018 continued
to list Plaintiff’s LVEF as 20% (see Tr. 941; see also Tr. 968
(interrogation report dated December 13, 2017, listing LVEF as
20%)). Accordingly, the interrogation report in question does not
establish that Plaintiff’s CHF continued to rate as NYHA Class III
as of May 2018.
Plaintiff’s attempt to interpret the NYHA Class III notation
as a medical opinion from Dr. Williams fares no better. Although
28
Dr. Williams signed off on the interrogation report (see Tr. 947),
he neither provided any commentary on the continuing validity of
Plaintiff’s NYHA classification, nor offered any work-related
restrictions that such a classification would entail (see Tr. 941-
47). Moreover, on the same day as the AICD interrogation report,
Dr. Williams examined Plaintiff, noted that she “[a]ppear[ed]
stable” (Tr. 913), “seem[ed] to be doing well” (Tr. 910), and
“[a]ctually [] look[ed] better than she ha[d] previously” (id.),
documented Plaintiff’s denial of chest pain, SOB, and edema (see
id.), recorded oxygen saturation of 100% on room air, a normal
gait, and “no increased work of breathing or signs of respiratory
distress” (Tr. 912), and observed that her AICD was “functioning
appropriately” (Tr. 913).
In light of the foregoing analysis, Plaintiff has not shown
that the ALJ erred in his evaluation of the opinions of Drs.
Goodberry and Williams, and the Court should deny relief on
Plaintiff’s third assignment of error.
3. Listing 4.02
Lastly, Plaintiff contends that “[t]he ALJ erred by failing to
evaluate whether Plaintiff’s CHF medically equals Listing 4.02.”
(Docket Entry 14 at 16 (bold font and single-spacing omitted); see
also Docket Entry 17 at 3-5.) In that regard, Plaintiff argues
that, “[d]espite its implication in this case with [Plaintiff]
suffering from chronic CHF with numerous low LVEF readings (30% or
29
lower) in her file both during periods of stability as well as
during acute events (Docket Entry 14 at 17 (citing Tr. 297, 376,
408, 693, 941, 968)), the ALJ did not mention, much less evaluate
Listing 4.02 for CHF in his decision” (id. (citing Tr. 15-16)).
Plaintiff concedes that “the record does not contain an exercise
stress test or [a] statement that it is not safe for [Plaintiff] to
perform one” (id.), but maintains that “Dr. Williams reiterated the
presence of [Plaintiff’s] risk [for sudden cardiac death] in May of
2018 when, during a period of stability, she still suffered from an
[LV]EF of only 20%” (id. (citing Tr. 913, 941)). Thus, Plaintiff
argues, her medical records show “the presence of another ‘finding
related to [that] impairment that [is] at least of equal medical
significance to the required criteria.’” (Id. at 18 (citing 20
C.F.R. 404.1526(b)).) According to Plaintiff, she also “has
evidence of symptoms which ‘very seriously limit the ability to
independently initiate, sustain, or complete activities of daily
living’ both in her testimony and in her medical records including
her inability to get in and out of the shower on her own, dress on
her own, her inability to stand long enough to wash dishes, an
inability to prepare more than simple food such as cereal of
sandwiches, her need to be driven around by her husband and her
reliance on an electric scooter to simply get around a grocery
store.” (Id. (quoting 20 C.F.R. Pt. 404, Subpt. P, App’x I,
§ 4.02).)
30
“Under Step 3, the [SSA’s SEP] regulation states that a
claimant will be found disabled if he or she has an impairment that
‘meets or equals one of [the] listings in appendix 1 of [20 C.F.R.
Pt. 404, Subpt. P] and meets the duration requirement.’” Radford
v. Colvin, 734 F.3d 288, 293 (4th Cir. 2013) (quoting 20 C.F.R.
§ 404.1520 (a) (4) (111) (internal bracketed numbers omitted)). “The
listings set out at 20 CFR pt. 404, subpt. P, App. 1, are
descriptions of various physical and mental illnesses and
abnormalities, most of which are categorized by the body system
they affect. Fach impairment is defined in terms of several
specific medical signs, symptoms, or laboratory test results.”
Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote
and parentheticals omitted).
“In order to satisfy a listing and qualify for benefits, a
person must meet all of the medical criteria in a particular
listing.” Bennett v. Sullivan, 917 F.2d 157, 160 (4th Cir. 1990)
(citing Zebley, 493 U.S. at 530, and 20 C.F.R. 404.1526(a)); see
also Zebley, 493 U.S. at 530 (“An impairment that manifests only
some of those criteria [in a listing], no matter how severely, does
not qualify.”). “An impairment or combination of impairments
medically equals a listing when it is at least equal in severity
and duration to the criteria of any listed impairment.” Grimes v.
Colvin, No. 1:14CV891, 2016 WL 1312031, at *4 (M.D.N.C. Mar. 31,
2016) (unpublished) (Osteen, Jr., C.J.) (citing 20 C.F.R.
31
§ 416.926(a)-(b)) (emphasis added); see also Lewis v. Apfel, 236
F.3d 503, 514 (9th Cir. 2001) (“A finding of medical equivalence
must be based on medical evidence only.” (citing 20 C.F.R.
§ 404.1529(d)(3)) (emphasis added)). “A claimant cannot qualify
for benefits under the ‘equivalence’ step by showing that the
overall functional impact of [her] unlisted impairment or
combination of impairments is as severe as that of a listed
impairment.” Zebley, 493 U.S. at 531 (emphasis added).
“[TO]nly where there is ample evidence in the record to support
a determination that a claimant’s impairment meets or equals one of
the listed impairments must the ALJ identify the relevant listed
impairments and compare them to evidence of a plaintiff’s
symptoms.” Reynolds v. Astrue, No. 3:11CV49, 2012 WL 748668, at *4
(W.D.N.C. Mar. 8, 2012) (unpublished) (emphasis added) (citing Cook
v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)}); see also
Russell v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL
417576, at *3 (4th Cir. July 7, 1995) (unpublished) (“Cook,
however, does not establish an inflexible rule requiring an
exhaustive point-by-point discussion [of listings] in all
cases.”).'°
10 The Cook court’s confinement of the ALJ’s duty to explicitly identify
listings and compare their elements to the record to situations in which the
claimant comes forward with “ample evidence” that an impairment meets a listing
makes sense. “Step two of the [SEP] is a threshold question with a de minimis
severity requirement,” Felton-Miller v. Astrue, 459 F. App’x 226, 230 (4th Cir.
2011) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)), but “[t]he criteria
in the medical listings [at step three] are demanding and stringent,” Falco v.
Shalala, 27 F.3d 160, 162 (5th Cir. 1994) (internal quotation marks omitted); see
(continued...)
32
To satisfy the criteria of Listing 4.02(A)(1) and (B)(1), a
claimant must offer proof of “[CHF] while on a regimen of
prescribed treatment” and “[m]edically documented . . . [s]ystolic
failure . . . with . . . [LVEF] of 30 percent or less during a
period of stability (not during an episode of acute heart
failure) . . . AND
. . . [p]ersistent symptoms of heart failure which very
seriously limit the ability to independently initiate,
sustain, or complete activities of daily living in an
individual for whom a[ medical consultant], preferably
one experienced in the care of patients with
cardiovascular disease, has concluded that the
performance of an exercise test would present a
significant risk to the individual.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 4.02. In this case, the
ALJ did not err by omitting a discussion of Listing 4.02, because
the record lacks “ample evidence” that Plaintiff’s condition met or
equaled that Listing, Cook, 783 F.2d at 1172-73.
Plaintiff’s assertion that the record contains “numerous low
LVEF readings (30% or lower) . . . both during periods of stability
as well as during acute events” (Docket Entry 14 at 17 (emphasis
10(...continued)
also Zebley, 493 U.S. at 532 (“[The Social Security Administration] has set the
medical criteria defining the listed impairments at a higher level of severity
than the statutory [disability] standard.”). Accordingly, the mere fact that
an impairment qualifies as severe at step two does not suggest that it meets a
listing at step three. No reason thus exists for courts to require ALJs to
document the manner in which every impairment deemed severe at step two fails to
meet a listing at step three; rather, common sense supports the Fourth Circuit’s
decision in Cook to insist that ALJs discuss a specific listing only when the
claimant marshals “ample evidence” that an impairment actually meets the criteria
for that listing. Nor does the more recent ruling in Radford counsel otherwise.
Although the Fourth Circuit there remanded due to an ALJ’s “insufficient legal
analysis” at step three, it did so consistently with the standard set in Cook,
as the record contained “probative evidence strongly suggesting that [the
claimant] me[t] or equal[ed a particular listing].” Radford, 734 F.3d at 295.
33
added) (citing Tr. 297, 376, 408, 693, 941, 968)) misses the mark.
Page 297 of the administrative transcript contains a report of a
consultation with Dr. Williams on January 10, 2016, which
references Plaintiff’s LVEF of 20 percent (obtained via ECG on
January 5, 2016 (see Tr. 331-33)). (See Tr. 297.) As this LVEF
reading took place during Plaintiff’s hospitalization for a heart
attack and acute heart failure, it did not occur during a “period
of stability” as required by Listing 4.02(A)(1).11 Similarly, pages
376 and 408 of the record document hospitalizations for a stroke
and acute systolic CHF decompensation with pulmonary edema,
respectively, and thus those pages’ references to an LVEF of 25 to
30 percent obtained through ECG on March 13, 2016 (see Tr. 399-
401), do not establish a listing level LVEF occurring during a
“period of stability” under Listing 4.02(A)(1). (See Tr. 376,
408.) Moreover, Plaintiff’s citation to page 693 of the transcript
does not aid her cause, as that page documents a trip to the
emergency room on May 4, 2017, which merely references Plaintiff’s
past medical history (“PMHx”) of an LVEF of 25 to 30 percent. (See
Tr. 693.) As discussed above, pages 941 and 968 contain excerpts
of AICD interrogation reports dated May 10, 2018, and December 13,
2017, respectively, which reflect Plaintiff’s LVEF on the day of
11 As the introductory section to the respiratory disorders listings
explains, “[w]hen an acute episode of heart failure is triggered by a remediable
factor, such as an arrhythmia, dietary sodium overload, or high altitude, cardiac
function may be restored and a chronic impairment may not be present.” 20 C.F.R.
Pt. 404, Subpt. P, App’x 1, § 4.00(D)(2)(b).
34
AICD implantation in January 2016 during the immediate aftermath of
Plaintiff’s heart attack and acute heart failure. (See Tr. 941,
968.) In short, the record lacks ample evidence that Plaintiff had
LVEF readings at 30 percent or less during periods of stability,
i.e., that she could meet the criteria of paragraph (A)(1) of
Listing 4.02, and thus the ALJ did not err by omitting an express
discussion of that Listing.
The record also does not contain ample evidence that Plaintiff
could meet or equal the requirements of paragraph (B)(1) of Listing
4.02. As stated above, Plaintiff concedes that “the record does
not contain an exercise stress test or [a] statement that it is not
safe for [Plaintiff] to perform one” (Docket Entry 14 at 17) and,
because the AICD interrogation reports merely reflect Plaintiff’s
LVEF in January 2016 at the time of implantation, Plaintiff’s
contention that “Dr. Williams reiterated the presence of
[Plaintiff’s] risk [for sudden cardiac death] in May of 2018 when,
during a period of stability, she still suffered from an [LV]EF of
only 20%” (id. (citing Tr. 913, 941)) lacks merit. Thus, Plaintiff
has also not shown “the presence of another ‘finding related to
[her] impairment that [was] at least of equal medical significance
to the required criteria.’” (Id. at 18 (quoting 20 C.F.R.
404.1526(b)).)
Lastly, Plaintiff argues that “the [C]ourt’s review is limited
to the reasons articulated by the ALJ[,] and the ALJ never made
35
th[e] argument [that Plaintiff lacked a qualifying LVEF] in support
of his decision as again, he failed to even mention, much less
evaluate whether [Plaintiff] met or medically equaled Listing
4.02.” (Docket Entry 17 at 4 (citing Tr. 15-16, and, inter alia,
Patterson v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must
. . . affirm the ALJ’s decision only upon the reasons he gave.”)).)
Plaintiff’s argument overlooks the fact that, where an ALJ has not
provided any analysis regarding a particular listing, and a
plaintiff alleges that sufficient evidence exists that she meets or
equals that listing, the court necessarily must examine the record
in order to determine whether “ample evidence” existed in the
record that the plaintiff could have met or equaled the listing in
question, much like a court must do when conducting a harmlessness
analysis of an ALJ’s error. See Bishop v. Commissioner of Soc.
Sec., 583 F. App’x 65, 67 (4th Cir. 2014) (finding no post hoc
rationalization where magistrate judge relied on certain evidence
not cited by ALJ, noting that “any error [by the ALJ wa]s reviewed
under the harmless error doctrine” and that, “if the decision
‘[wa]s overwhelmingly supported by the record though the agency’s
original opinion failed to marshal that support, then remanding
[wa]s a waste of time’” (quoting Spiva v. Astrue, 628 F.3d 346, 353
(7th Cir. 2010))); see also Smith-Johnson v. Commissioner of Soc.
Sec., 579 F. App’x 426, 435 (6th Cir. 2014) (noting that,
“[u]ndoubtedly, there is a fine line between a post-hoc
36
rationalization and a determination as to whether the record
evidence raises a substantial question” that the plaintiff met or
equaled a listing, but concluding that district court’s analysis
did not constitute “an improper post-hoc rationalization of the
ALJ’s failure to consider Listing 12.05(C)”); Pumphrey v.
Commissioner of Soc. Sec., No. 3:14CV71, 2015 WL 3868354, at *4
(N.D.W. Va. June 23, 2015) (unpublished) (rejecting the plaintiff’s
argument that, “because the ALJ did not analyze [L]isting 4.11 in
her decision, the magistrate judge’s determination that the record
contained no evidence of chronic venous insufficiency was a
post-hoc rationalization,” and noting that the magistrate judge had
to analyze whether “ample evidence [existed] in the record to
support a determination that [the p]laintiff’s impairment met or
equaled Listing 4.11B”).
Put simply, Plaintiff has not shown that the ALJ erred by
failing to analyze whether Plaintiff’s CHF met or equaled Listing
4.02.
III. CONCLUSION
Plaintiff has not established grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on the Pleadings (Docket Entry 13) be denied, that
37
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 15)
be granted, and that judgment be entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 19, 2021
38