Thompson v. O'Malley

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

JAMES T.,

Plaintiff,

v. CIVIL ACTION NO. 3:23-cv-00370

MARTIN J. O’MALLEY

Commissioner of Social Security,1

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Defendant.

PROPOSED FINDINGS & RECOMMENDATION

Plaintiff James T. (“Claimant”) seeks review of the final decision of the

Commissioner of Social Security (the “Commissioner”) denying his application for a

Period of Disability and Disability Insurance Benefits (“DIB”) under Title II of the Social

Security Act, 42 U.S.C. §§ 401–33. This matter was referred to the undersigned United

States Magistrate Judge by standing order on May 11, 2023, for consideration of the

pleadings and evidence and to submit proposed findings of fact and recommendations for

disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 3.) Pending before this Court

are Claimant’s Brief in Support of Plaintiff’s Motion for Judgment on the Pleadings (ECF

No. 12), and the Commissioner’s Brief in Support of Defendant’s Decision (ECF No. 15).

1 Commissioner O’Malley was substituted in place of Acting Commissioner Kilolo Kijakazi following

O’Malley’s appointment on December 20, 2023, and is automatically substituted as a party pursuant to

Federal Rule of Civil Procedure 25(d). See 42 U.S.C. § 405(g) (stating that action survives regardless of any

change in the person occupying the office of Commissioner of Social Security).

Having fully considered the record and the arguments of the parties, the

undersigned respectfully RECOMMENDS that the presiding District Judge DENY

Claimant’s request to reverse the Commissioner’s decision (ECF No. 12), GRANT the

Commissioner’s request to affirm his decision (ECF No. 15), AFFIRM the final decision

of the Commissioner, and DISMISS this action from the Court’s docket.

I. BACKGROUND

A. Information about Claimant and Procedural History of Claim

Claimant was 50 years old at the time of his alleged disability onset date and 52

years old on the date of the decision by the Administrative Law Judge (“ALJ”).2 (Tr. 11).

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He has a high-school education, and has worked as an electronics technician, a warehouse

supervisor, and a customer-service representative. (Tr. 21, 58-60, 333-39). Claimant

alleges that he became disabled on January 28, 2020,3 due to anxiety and depression,

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chronic pain in his back and legs, obesity, and hypertrophic cardiomyopathy, syncope,4

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and other heart problems. (Tr. 263).

Claimant protectively filed his application for benefits on March 23, 2020.5 His

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claim was initially denied on January 4, 2021, and again upon reconsideration on March

14, 2022. (Tr. 128-38, 147-50.) Thereafter, Claimant filed a written request for hearing,

which was received on April 1, 2022. (Tr. 151-53, 172-91). An administrative hearing was

2 All references to “Tr.” refer to the Transcript of Proceedings filed in this action at ECF No. 8.

3 Claimant initially gave his disability onset date as January 26, 2019. (Tr. 252-53). However, he later

amended the date to January 28, 2020. (See id; see also ECF No. 15 at 3 n.1; Tr. 11, 300).

4 Syncope is the medical term signifying a loss of consciousness, colloquially known as fainting or passing

out. Syncope, Stedmans Medical Dictionary 875540 (Westlaw 2014).

5 Claimant previously filed an application for disability insurance benefits (“DIB”) on February 22, 2017,

which was denied in an ALJ decision on January 25, 2019 (Tr. 65-78). In the subsequent DIB application

that is presently before the Court in this matter, Claimant’s alleged onset date of January 28, 2020, is three

days after his prior unfavorable decision. (Tr. 252-53).

held by telephone before an ALJ on December 12, 2022. (Tr. 43). Claimant was

represented by counsel at the hearing and offered testimony, along with a vocational

expert. (Tr. 39-61). On January 9, 2023, the ALJ entered an unfavorable decision. (Tr. 11-

22). Claimant then sought review of the ALJ’s decision by the Appeals Council; however,

the Appeals Council denied Claimant’s request for review on March 7, 2023, and the ALJ’s

decision became the final decision of the Commissioner on that date. (Tr. 1-6.)

Claimant timely brought the present action on May 5, 2023, seeking judicial review

of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner filed

the transcript of the administrative proceedings (ECF No. 8). Claimant subsequently filed

his Brief in Support of Motion for Judgment on the Pleadings (ECF No. 12), and in

response, the Commissioner filed his Brief in Support of Defendant’s Decision (ECF No.

15). Claimant then filed her Response to Brief in Support of Defendant’s Decision. (ECF

No. 14.) As such, this matter is fully briefed and ready for resolution.

B. Relevant Medical Evidence

The undersigned has considered all evidence of record, including the medical

evidence, pertaining to Claimant’s arguments and summarizes the relevant portions here

for the convenience of the United States District Judge.

1. Medical Treatment

On December 2, 2019, Claimant presented to the Charleston Area Medical Center

Teays Valley Hospital (“CAMC”) for a Duplex Doppler carotid artery ultrasound and a

computerized tomography (“CT”) head scan; the imaging was ordered by neurologist

Robert Lee Lewis II, M.D., based upon Claimant’s complaints of syncopal episodes,

seizures, dizziness, and history of hypertension. (Tr. 691-92). Matthew W. Morris, M.D.,

interpreted the CT scan. (Tr. 691). Dr. Morris noted intracranial vascular calcifications,

but he found that Claimant’s cerebrum and cerebellum were unremarkable; there was no

evidence of acute cortically based infarct, intracranial hemorrhage, mass lesion, midline

shift, abnormal extra-axial fluid collection, or hydrocephalus; and the calvarium was

intact. Id. Further, Dr. Morris found that the remainder of the examination was

“unremarkable.” Id. Based upon these findings, Dr. Morris’s impression was “no acute

intracranial abnormality.” Id. John J. Anton, M.D., interpreted the ultrasound. He found

“[t]here is hard plaque present at the right carotid bulb with 30% narrowing,” but there

was “no evidence for elevated velocities to suggest a hemodynamic significant stenotic

lesion.” (Tr. 692). Dr. Anton’s impression was “[r]ight carotid bulb atherosclerotic

change,” with “[n]o evidence for hemodynamic significant internal carotid artery

stenosis.” Id. Following these imaging results, Claimant was scheduled for further testing

by electroencephalogram (“EEG”) and a sleep evaluation (Tr. 713).

On December 13, 2019, Claimant presented to his primary-care physician, Dr.

Christina Webb at the West Virginia Family Health Care Center, for a follow-up

appointment regarding his conditions of muscle pain, obesity, and syncope. (Tr. 843).

The discussion notes state that Dr. Webb “discussed with patient today that he cannot

drive at this time” due to “concern for further questionable seizure episodes and/or

syncope.” Id.

A subsequent neurology consult note by Dr. Lewis indicates that Claimant

presented for the EEG test on January 23, 2020, on referral from Claimant’s primary-

care physician, Dr. Webb. (Tr. 747). The neurology report stated that “[t]here is an

abundance of beta frequency activity seen diffusely,” and “[s]leep architecture was not

observed.” (Tr. 748). Additionally, “[h]yperventilation and photic stimulation produced

no additional findings . . . [and] [h]eart rate monitoring was regular at about 72 beats per

minute.” Id. Dr. Lewis’s interpretation was that “[t]his EEG is normal during

wakefulness.” Id. Further, Dr. Lewis noted that “[b]eta frequency activity is a nonspecific

finding, frequently associated with sedative medication,” and that “[t]he lack of

epileptiform discharges does not exclude the diagnoses of epilepsy in the appropriate

clinical setting.” Id. Finally, Dr. Lewis noted that, “IF further concern remains, a repeat

study with sleep deprivation is suggested.” Id. (emphasis in original).

On January 30, 2020, Claimant was seen by Mohammad Aljasmi, M.D., an

internal-medicine physician specializing in Pulmonary, Critical Care, and Sleep Medicine,

“for management of his obstructive sleep apnea.” (Tr. 744). Claimant reported that he was

diagnosed with obstructive sleep apnea “many years ago” and “has been on CPAP since.”

Id. Further, Claimant reported that over the past year he has been coughing and

experiencing “worsening excessive daytime sleepiness falling asleep easily during

conversation sometimes during driving and when playing board games with family.” Id.

Finally, Claimant reported that he has “no problems” going to sleep or maintaining sleep;

he sleeps approximately ten hours every night, and that “[h]e wakes up tired and

refreshed.” Id. On examination, Dr. Aljasmi assessed obstructive sleep apnea, and noted

Claimant was a current smoker. (Tr. 746). Dr. Aljasmi’s treatment plan was to order a new

CPAP machine and follow up with Claimant in three months; further, Dr. Aljasmi

recommended weight loss and “[s]tressed [the] importance of using a CPAP machine at

all times.” Id.

On March 2, 2020, Claimant followed up with Dr. Webb. (Tr. 835). There, he

reported that Dr. Lewis “started him on” seizure medication, but that “he has had more

episodes” of blacking out without any warning signs beforehand. (Tr. 836). Treatment

notes state that Claimant’s motor strength and tone were abnormal on examination, with

“decreased strength” in the left upper and lower extremities; however, Claimant’s cranial

nerves were found to be grossly intact. (Tr. 836-37). Claimant also reflected some

tightness in his neck and decreased sensation in his right middle finger and ball of his

right foot. Id. Dr. Webb assessed Claimant with an ingrown toenail, obesity, cervicalgia

(neck pain), degeneration of an intervertebral disc from an unspecified thoracic,

thoracolumbar and lumbosacral intervertebral disc disorder; cervical and lumber

radiculopathy, an unspecified Vitamin D deficiency, unspecified hyperlipidemia, and

hypertension. (Tr. 837). Dr. Webb’s treatment plan involved rehabilitation exercises for

Claimant’s neck pain, instructions for “learning about healthy weight,” an order for

Claimant to return to the office for “fasting labs,” and finally, a referral to podiatry for an

ingrown toenail. Aside from recommending exercises for Claimant’s neck pain, Dr.

Webb’s treatment plan did not recommend any action to address the musculoskeletal

issues. (Tr. 837). Claimant was scheduled to follow up in three months. Id.

On March 15, 2020, Claimant returned to Dr. Aljasmi for a sleep study. (Tr. 947).

Dr. Aljasmi reviewed the raw data from the study and found that Claimant had an overall

sleep efficiency of about 85%. Id. Dr. Aljasmi noted that Claimant was started on a CPAP

machine during the course of the night. (Tr. 943-45). When the CPAP was titrated up to

14 cm of water pressure, the number of apneas and hypopneas was reduced “down to zero

events at that level,” indicating that Claimant’s sleep-apnea symptoms were resolved

when he used a properly-calibrated CPAP machine. Id.

Subsequently on May 4, 2020, Claimant returned for a follow-up appointment

with Dr. Aljasmi and reported no new changes as “he has yet to receive his new CPAP.”

(Tr. 943). Dr. Aljasmi performed a physical examination and noted that Claimant had an

intact range-of-motion in his neck and shoulder; showed no deformities in his hands or

feet; had no kyphosis; had no edema in his lower extremities; and displayed a normal

mood and affect. (Tr. 945). Dr. Aljasmi’s treatment plan consisted of encouraging

Claimant to lose weight, following up on Claimant’s new CPAP order, and scheduling

Claimant to return in three months with his CPAP device. Id.

On June 2, 2020, Claimant presented to Dr. Webb for a follow-up visit. (Tr. 964-

67). The treatment note states that Claimant gave his verbal consent “to treat through

telehealth with audio” for the appointment due to the Covid-19 pandemic, though he was

“unable to do video due to driving.” (Tr. 966). Claimant was noted to be in a “parked car”

during the telehealth appointment. Id. He further reported that, normally, he relied on

his daughter to drive him around. Id. The treatment note states that Claimant’s chief

complaint was “wanting [his] pain meds changed,” and he reported that “ibuprofen is no

longer cutting it” due to pain in his back and leg. (Tr. 964). Claimant reported that he was

waiting on his insurance company to approve the new CPAP machine prescribed by Dr.

Aljasmi. (Tr. 966). Further, Claimant reported that his last syncopal episode occurred

approximately one month before, when he “woke up and lost a few minutes.” Id. He

further stated that sometimes he feels fatigued before a syncope episode. Id. Dr. Webb

assessed Claimant with unspecified cardiac arrhythmia and lumbar radiculopathy. (Tr.

967). Her treatment plan involved stopping ibuprofen and starting arthrotec in its place

for pain; prescribing diclofenac for his radiculopathy, and referring Claimant to

cardiology as soon as possible for his intermittent syncopal episodes. Id.

On referral to cardiology, Claimant was prescribed a “Holter” heart monitor to help

Claimant’s treatment team discover the etiology, or cause, of the syncope episodes. (Tr.

1044). Additionally, a June 17, 2020 Persantine Stress Test showed evidence of moderate

ischemia in the basal inferior, mid inferior and apical region(s). (TR 1053). Later in June

2020, Claimant had another episode of syncope, triggering his monitor and resulting in

him being brought in for a cardiac examination. (Tr. 1044). On June 29, 2020, Claimant

underwent a left heart catheterization, selective coronary angiography, and left

ventriculography performed by Mohammed Y. Haffar, M.D. (Tr. 1070). The procedure

“revealed significant three-vessel coronary artery disease.” Id. Because Dr. Haffar found

that Claimant “was not a suitable candidate for percutaneous intervention,” he referred

Claimant for an urgent coronary-artery-bypass consult with Dr. Ramanathan Simpath

from the Cardiology and Neurology Service at Charleston Area Medical Center Memorial

Hospital (“CAMC Hospital”). (Tr. 1070).

The following day on June 30, 2020, Claimant was admitted to the CAMC Hospital

for Dr. Simpath’s consult. (TR 1060-1062). Treatment notes from the consult reviewed

the Claimant’s medical history in detail. First, Dr. Simpath observed that Claimant “was

known to have bicuspid aortic valve” and reported episodes of syncope. Id. Dr. Simpath

explained the valve “was considered to be stenotic only to a very mild degree and so

[Claimant] had a work up which included Holter monitoring, [a] complete neurological

work up which included [an] EEG, CT scan, carotid studies and tilt test and all of them

came back negative.” Id. Additionally, “review of the Holter monitor did not show any

significant arrhythmia so the patient underwent a stress test again,” which was positive.

(Tr. 1070-71). Dr. Simpath explained that, based upon the positive stress test results,

Claimant underwent the cardiac catheterization which revealed “significant three-vessel

coronary artery disease.” (Tr. 1071). Dr. Simpath further noted that Claimant “stopped

smoking only just a few weeks ago.” Id. On examination, Dr. Simpath found that

Claimant’s “femorals” were “not palpable well” and his “[v]ein also is not seen well in the

ankle,” both because of obesity. Id. Additionally, he found that Claimant’s motor power

of the extremities was good. Dr. Simpath planned to move forward with surgery once he

received the results of the echocardiogram. (Tr. 1071-72). Results of the July 2, 2020,

Transesophageal Echocardiography showed mild stenosis and mild regurgitation in

Claimant’s aortic valve. (TR 1103). Accordingly, Claimant underwent a successful

quintuple coronary artery bypass operation on July 6, 2020. (Tr. 1066-69, 1073-75).

On July 15, 2020, following his hospital discharge, Claimant presented for a follow-

up appointment with Dr. Webb via telehealth. (Tr. 1079-82). Referencing Claimant’s

cardiology treatment notes, Dr. Webb stated that “they want him up and moving 30

min[utes] a day . . . [and] will start cardiac therapy in 4-6 weeks.” (Tr. 1082). Claimant

reported to Dr. Webb that he was “feeling pretty good except his back.” Id. Dr. Webb could

not perform a physical examination due to the covid-19 pandemic, but she did perform a

mental-status examination via telehealth and noted that Claimant’s cognition was

appropriately oriented, he had a stable, euthymic mood, a pleasant and happy mood

congruent to his unremarkable thought content, and had intact insight, judgment, and

thought processes. Id. Dr. Webb’s treatment plan involved conferring with cardiology

regarding changes to Claimant’s prescription medication, and prescribing hydrocodone

for radiculopathy and pain in the lumbar region. Id.

Following discharge, Claimant reported that he did “remarkably well” following

heart surgery. (Tr. 1086). At a September 3, 2020 follow-up appointment, Claimant

denied experiencing any chest pain or exertional angina, and his heart and lungs were

found to be normal on physical examination. (Tr. 1167). Claimant was referred out for

cardiac rehabilitation. Id.

In December 2020, Claimant had a consultative examination performed. (Tr.

1181). An x-ray reflected only mild issues in his lumbar spine, consisting of mild-

degenerative-endplate changes and mild-multilevel-facet arthropathy. (Tr. 1179). He

ambulated without an assistive device, transferred from the chair to the exam table

without difficulty, and had a steady gait with a limp on the right. (Tr. 1182). He was

comfortable in the sitting position and had no issues with his neck, chest, or

cardiovascular system. (Tr. 1183). He had 4/5 strength in his left upper extremity and 5/5

strength in all other muscle groups (Tr. 1183-84). He was able to tandem gait, tip toe walk,

and heel walk, and he had reduced range of motion throughout his extremities. (Tr. 1184).

The examiner noted that Claimant “displayed poor effort.” (Tr. 1184).

On March 19, 2021, Claimant returned to Dr. Webb for follow-up. He reported that

he had presented to the Emergency Room at St. Mary’s Medical Center (the “ER”) on

March 10, 2021, after experiencing some shortness of breath and swelling in his right leg.

(Tr. 1200-1218, 1882). Claimant was admitted to the ER, where ultrasound examination

of his right leg ruled out deep-vein thrombosis. (Tr. 1200-1218). Claimant was assessed

with exertional dyspnea, peripheral edema, history of coronary artery disease,

hypertension, dyslipidemia, obesity, obstructive sleep apnea, hypertrophic

cardiomyopathy with possible obstruction, and left ventricular aneurysm. Id. Ultimately,

an automatic implantable cardioverter defibrillator was implanted, and treatment notes

show Claimant was “doing well” at discharge on March 17, 2021. (Tr. 1200-01; 1882).

Also during his March 19 follow-up with Dr. Webb, Claimant further reported that

he experienced one syncope episode prior to the pacemaker implantation, but had not

experienced any since. Id. Additionally, Claimant reported that his insurance company

would not cover the new CPAP prescribed by Dr. Aljasmi on January 30, 2020, and that

he needed to reschedule an appointment with Dr. Aljasmi to bring his old CPAP in for

recalibration. Id. On physical examination, Dr. Webb noted that Claimant was morbidly

obese with limited ambulation. Id. She found that there were decreased carotid sounds in

Claimant’s neck vessels, and she was unable to palpate for pulses. Id. Additionally, Dr.

Webb found edema and erythematous changes in the right lower extremity. Id. However,

Dr. Webb’s examination revealed no issues with respect to Claimant’s head, neck, eyes,

lungs, skin, and abdomen. Id. Dr. Webb found no cyanosis or other musculoskeletal issues

in Claimant’s extremities, and results of a neurologic examination showed grossly intact

sensation and cranial nerves, with no tremor. Id. Further, Claimant had normal results

on psychological examination. Id. Dr. Webb’s assessment was hypertrophic

cardiomyopathy, severe obesity, syncope, and symptoms and signs of circulatory issues.

(Tr. 1882-83). Dr. Webb’s treatment plan involved counseling Claimant on his obesity

and learning about a healthy weight, referring Claimant to Dr. Haffar for his symptoms

of syncope, and to return in approximately one month for follow-up. (Tr. 1882-83).

On April 13, 2021, Claimant was seen by Nurse Practitioner Marsha L. Sutton,

APRN-CNP, at the Vascular Office Clinic. (Tr. 1605-16). Claimant reported continuing

episodes of syncope. (Tr. 1189). He was assessed with chronic peripheral venous

insufficiency, lymphedema, carotid stenosis, hypertension, and hyperlipidemia. (TR

1514-1516). The treatment plan involved prescribing medication, instructing Claimant to

wear compression stockings and elevate his legs when sitting, and scheduling a follow-up

appointment. (Tr. 1516, 1532). Later that same month, a Doppler study was performed,

reflecting atherosclerosis but no definite evidence for a hemodynamically-significant

disease. (Tr. 1515-16).

Claimant returned to the Vascular Office Clinic on May 19, 2021. Treatment notes

reflect that Claimant had been wearing wraps on both his legs. (Tr. 1605-09). He reported

that since his surgery and implantation with the defibrillator, he had only experienced

syncope on two occasions; however, Claimant also reported that he continued to

experience lightheadedness. Id. He was assessed with dyspnea on exertion and a vitamin

d deficiency, and referred to a lymphedema specialist. Id.

At a follow-up appointment with the Vascular Office Clinic in July 2021, Claimant

had another cardiac catheterization, which reflected severe multilevel coronary artery

disease. (Tr. 1535). However, no additional intervention procedures were recommended,

and he was directed to continue his current medical management and risk-factor

modification. (Tr. 1601). Further, treatment notes indicate that CT imaging of Claimant’s

chest dated July 6, 2021 revealed a 1.5cm focal left ventricular tip, assessed as a likely

myocardial lesion. (TR 1624-1625).

At a subsequent follow-up appointment in August 2021, an echocardiogram and

pacemaker evaluation were ordered. (Tr. 1682-84). Claimant was scheduled to follow up

with cardiology in two months to discuss the results, with no triggering events identified

with his pacemaker and few findings following his echocardiogram. (Tr. 1679-80).

On August 25, 2021, Claimant presented to his primary-care physician, Dr. Webb.

(Tr. 1598-1601). Dr. Webb’s treatment notes reflect that Claimant was no longer following

with Dr. Haffar; however, he was seen at Cleveland Clinic “by [a] heart failure doctor,”

who then referred Claimant “to EP there” for a device check, echocardiogram, and

electrocardiogram scheduled for October 29, 2021. (Tr. 1601).

Additionally, during his August 25, 2021 appointment, Claimant reported to Dr.

Webb that he was prescribed socks for his edema, and he felt that “they help.” Id. He

reported experiencing an elevated heart rate when walking from one room to another, but

he was no longer smoking. Id. Although he “was due for a new cpap machine two years

ago,” Claimant reported that he was still using his old machine and that he was having

trouble scheduling a follow-up appointment with his pulmonologist. Id. Claimant further

reported sleeping for up to twelve hours but not obtaining restful sleep, causing him to be

“ready for a nap” within just a few hours of waking up. Id. Finally, Claimant reported an

uneven heart rate, as well as continued episodes of syncope, and rapidly-changing heart

rates. Id. On examination, Dr. Webb found decreased breath sounds and diminished air

movement as well as edema. (Tr. 1602). She assessed Claimant with coronary

arteriosclerosis, severe obesity, hypertrophic cardiomyopathy, degeneration of

intervertebral discs, Vitamin D deficiency, tobacco dependence syndrome, obstructive

sleep apnea syndrome, and intermittent heart palpitations. Id. For a treatment plan, Dr.

Webb ordered a sleep study, testing with a Holter monitor, lung cancer screening,

prescription of medication for Claimant’s back pain and hypertrophic cardiomyopathy,

and weight-loss education. Id.

On October 29, 2021, presented to Cleveland Clinic for evaluation of possible

arrhythmic cause for his chief complaint of fatigue and recurrent syncope. (Tr. 1677-80).

On examination, it was noted that “patient walks with a cane and is sedentary.” (Tr. 1679).

Further, examination indicated “palpitations, CAD,” mild concentric left ventricular

hypertrophy, left ventricular diastolic dysfunction—Grade I, small apical aneurym of the

left ventrical without thrombus, mildly decreased systolic function, and aortic sclerosis

with “[n]o significant LVOT or LV cavity gradient.” (Tr. 1679). Review of the pacemaker

data showed an “ongoing pattern of heart varying from 60 to 120 bpm,” however, the

device showed to be functioning normally with no arrhythmias to explain the syncopal

episodes. (Tr. 1680). It was concluded that “there is no evidence to suggest arrhythmia is

causing the events,” however, Claimant was noted to have “significant venous stasis and

probable autonomic dysfunction as primary causes for syncope.” Id. A recommended

treatment plan stated that additional testing could be considered with formal evaluation

in the syncope clinic, and that Claimant “will plan to follow-up with ICD remote checks

locally and is also scheduled to see Dr. James in follow-up here at Cleveland clinic.” Id.

On November 17, 2021, Claimant had another follow-up appointment with his

primary-care physician, Dr. Webb. (Tr. 1649). Claimant reported he was seen at Cleveland

Clinic, where he was told that he had been misdiagnosed and the pacemaker was

unnecessary; however, they did adjust Claimant’s pacemaker, and he reported that the

episodes he was experiencing were not as severe. (Tr. 1652). He reported that he still

experienced syncopal symptoms every two weeks. Id. Dr. Webb’s treatment plan involved

instructing Claimant to wear compression stockings, prescribing vitamin supplements,

ordering blood tests, ordering a colon-cancer screening, ordering an electrocardiogram,

and referring Claimant to a neurologist. (Tr. 1653).

On November 29, 2021, Claimant appeared via telehealth for a follow-up with Dr.

James Cleveland Clinic for his chief complaints of continued syncope and sensation of

increased heart rate. (Tr. 1903-1904). Dr. James merely concurred with the prior referral

to the facility’s Syncope Clinic. (Tr. 1904).

Finally, Claimant had another physical consultative examination in February

2022, just after the expiration of his date last insured on December 31, 2021. (Tr. 1832).

He ambulated with a cane but transferred from the chair to the exam table without it. (Tr.

1834). His cardiovascular system was unremarkable, he had 4/5 strength in the left upper

extremities and 5/5 strength in all other muscle groups. (Tr. 1835). He could tandem, toe,

and heel walk. (Tr. 1835). Claimant also displayed reduced range of motion, but he was

again noted to have “displayed poor effort.” (Tr. 1835).

2. Mental Health Treatment

Claimant’s treatment for mental-health impairments over the relevant period was

limited solely to medication, with no evidence of any counseling or hospitalizations due

to mental-health concerns. In December 2019, Claimant had a negative depression

screening and had normal memory, attention, knowledge, language, and speech. (Tr. 712-

13). At his sleep apnea appointment in January 2020, Claimant displayed a normal mood

and affect. (Tr. 746). Similarly, in May 2020 Claimant displayed no psychiatric symptoms,

had normal cognition, and normal mood and affect. (Tr. 945). His mental status was also

normal at a telehealth appointment in June 2020. (Tr. 966). He had a psychological

assessment performed in November 2020, where he reported some symptoms of anxiety

and depression and had some issues with mood and affect, but he was properly oriented

with logical thought process, normal thought content, no issues with perception, fair

insight, normal judgment, normal memory, and normal concentration. (Tr. 1173-74).

Additionally, an intelligence test was performed, with Claimant having a Full Scale IQ of

112. (Tr. 1175).

In April 2021 another depression screening was performed, which once again was

negative, and Claimant again had normal mood and affect. (Tr. 183). He had another

psychological consultative examination in January 2022, following the expiration of his

date last insured, where he again displayed some symptoms of anxiety and depression but

had normal appearance, attitude, speech, orientation, thought process, thought content,

perception, judgment, insight, memory, concentration, and persistence, albeit a

“somewhat slow” pace. (Tr. 1824-25).

3. Prior Administrative Findings and Opinion Evidence

State-agency medical consultants Isidro Amigo, M.D., and Amy Wirts, M.D.,

reviewed the record evidence and found that Claimant could lift and carry twenty pounds

occasionally and ten pounds frequently, stand and walk for six hours, and sit for six hours

in an eight-hour workday. (Tr. 107-08, 122). Additionally, Dr. Amigo found that Claimant

could never climb ladders, ropes, or scaffolds, and could occasionally climb ramps or

stairs, balance, stoop, kneel, crouch, and crawl. (Tr. 108- 09, 122-23). Drs. Amigo and

Wirts further found Claimant had limited pushing, pulling, and overhead reaching with

his upper-left extremity, and should avoid concentrated exposure to extreme cold,

extreme heat, vibration, and pulmonary irritants, as well as all exposure to hazards. (Tr.

109-10, 123). Dr. Wirts also found that Claimant could occasionally handle with his upper-

left extremity. (Tr. 123).

State-agency psychological consultants John Todd, Ph.D., and Jeff Boggess, Ph.D.,

found that Claimant had no severe mental impairments (Tr. 104-05, 120-21).

Christina Webb, M.D., Claimant’s primary-care physician, opined that Claimant

could lift and carry up to ten pounds frequently, could stand and walk for less than two

hours, sit for approximately three hours, and had to alternate positions two to three times

per day. (Tr. 941). She further opined that Claimant had limited ability to push and pull,

could never crouch, crawl, or climb ladders, ropes, or scaffolds, and could occasionally

climb ramps and stairs, as well as balance, stoop, and kneel. (Tr. 941). Finally, Dr. Webb

opined that Claimant had limited ability to reach, handle, finger, and feel, and should

avoid all exposure to extreme cold, extreme heat, wetness, humidity, pulmonary irritants,

and hazards. (Tr. 941).

C. Claimant’s Testimony

At the hearing before the ALJ held on December 12, 2022, Claimant testified that

he was unable to work due to pain in his back, extremities, wrists, and hands, along with

carpal tunnel syndrome. (Tr. 45-46). Claimant reported pain in upper and lower back

made worse by activity such as standing in one position for too long. He estimated that

he could stand for up to fifteen minutes, sit for approximately twenty minutes before

needing to adjust position, had to lay down throughout the day, and could lift objects

weighing “about a gallon of milk” or less. (Tr. 50-51, 56). Claimant reported problems

with swelling in his legs, and testified that he must elevate his legs when sitting. Further,

Claimant testified that he experiences some relief with medication, uses a cane to

ambulate, and has treated with medications, injections, physical therapy, and surgery. (Tr.

46-50). He also testified that he has issues with his heart, resulting in the insertion of a

pacemaker; additionally, Claimant testified that he “passes out” periodically. (Tr. 48-49).

As for his mental-health impairments, Claimant testified that he suffers from

depression and cannot concentrate. (Tr. 47-48). His symptoms improved with

medication, but one of his psychiatric medications causes him to feel numb and

emotionless. See id. He testified that he struggles with personal care, does few chores

around the house, and has issues performing activities like cooking and going shopping

(Tr. 52-53).

Claimant also submitted three function reports. First, in August 2020, Claimant

reported some issues with personal care, but also reported making simple meals daily,

and being able to handle money except for paying bills. (Tr. 326-29). He performed

daily activities including folding laundry, sweeping floors, loading the dishwasher,

cleaning counters and tables, and making his bed. (Tr. 326-29). His hobbies included

reading, watching television, and writing. (Tr. 326-29). Next, in October 2020,

Claimant reported a decrease in functioning, but still reported that he was able to

engage in a number of daily activities including making meals daily, folding laundry,

and occasionally washing dishes. (Tr. 346-48). Finally, in October 2021, Claimant

alleged difficulty with personal care, making meals, doing chores, handling money, and

performing hobbies like reading and watching television. (Tr. 367-69).

D. Sequential Evaluation Process

An individual unable “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” is considered to be disabled and thus eligible for benefits. 42 U.S.C. §

423(d)(1)(A). The Social Security Administration has established a five-step sequential

evaluation process to aid in this determination. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4); Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). The ALJ proceeds

through each step until making a finding of either “disabled” or “not disabled”; if no

finding is made, the analysis advances to the next step. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). “The ultimate burden to prove disability lies on the claimant.” Preston v.

Heckler, 769 F.2d 988, 990 n.* (4th Cir. 1985); see Bird v. Comm’r, 699 F.3d 337, 340

(4th Cir. 2012) (“To establish eligibility for . . . benefits, a claimant must show that he

became disabled before his [date last insured].”).

At the first step in the sequential evaluation process, the ALJ determines whether

the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i),

416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the ALJ

moves on to the second step. At the second step, the ALJ considers the combined severity

of the claimant’s medically determinable physical and mental impairments. Id.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The ALJ gleans this information from the

available medical evidence. See Mastro v. Apfel, 270 F.3d 171, 177 (4th Cir. 2001). An

individual impairment or combination of impairments that is not classified as “severe”

and does not satisfy the durational requirements will result in a finding of “not disabled.”

20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); Mascio v. Colvin, 780 F.3d 632, 634–

35 (4th Cir. 2015).

Similarly, at the third step, the ALJ determines whether the claimant’s impairment

or combination of impairments meets or is medically equal to the criteria of an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). “A claimant is entitled to a conclusive

presumption that he is impaired if he can show that his condition ‘meets or equals the

listed impairments.’” Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013) (quoting

Bowen v. City of New York, 476 U.S. 467, 471 (1986)).

“If the first three steps do not lead to a conclusive determination, the ALJ then

assesses the claimant’s residual functional capacity” (“RFC”) before proceeding to the

fourth step. Mascio, 780 F.3d at 635; see 20 C.F.R. §§ 404.1520(e), 416.920(e). The

claimant’s RFC reflects “her ability to perform work despite her limitations.” Patterson v.

Comm’r, 846 F.3d 656, 659 (4th Cir. 2017); Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir.

2016) (defining claimant’s RFC as “the most the claimant can still do despite physical and

mental limitations that affect his ability to work” (alterations and internal quotation

marks omitted)); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ “first

identif[ies] the individual’s functional limitations or restrictions and assess[es] his or her

work-related abilities on a function-by-function basis,” then “define[s] the claimant’s RFC

in terms of the exertional levels of work.” Lewis, 858 F.3d at 862. “In determining a

claimant’s RFC, the ALJ must consider all of the claimant’s medically determinable

impairments . . . including those not labeled severe” as well as “all the claimant’s

symptoms, including pain, and the extent to which his symptoms can reasonably be

accepted as consistent with the objective medical evidence and other evidence.” Monroe,

826 F.3d at 179 (alterations and internal quotation marks omitted); see 20 C.F.R.

§§ 404.1545(a), 416.945(a).

When the claimant alleges a mental impairment, the first three steps of the

sequential evaluation process and the RFC assessment are conducted using a “special

technique” to “evaluate the severity of [the] mental impairment[].” 20 C.F.R.

§§ 404.1520a(a), 416.920a(a); see Patterson, 846 F.3d at 659. Considering the claimant’s

“pertinent symptoms, signs, and laboratory findings,” the ALJ determines whether the

claimant has “a medically determinable mental impairment(s)” and “rate[s] the degree of

functional limitation resulting from the impairment(s)” according to certain criteria. 20

C.F.R. §§ 404.1520a(b), 416.920a(b); see id. §§ 404.1520a(c), 416.920a(c). “Next, the ALJ

must determine if the mental impairment is severe, and if so, whether it qualifies as a

listed impairment.” Patterson, 846 F.3d at 659; see 20 C.F.R. §§ 404.1520a(d),

416.920a(d). “If the mental impairment is severe but is not a listed impairment, the ALJ

must assess the claimant’s RFC in light of how the impairment constrains the claimant’s

work abilities.” Patterson, 846 F.3d at 659. After assessing the claimant’s RFC, the ALJ

at the fourth step determines whether the claimant has the RFC to perform the

requirements of her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv); Monroe, 826 F.3d at 180. If he does not, then “the ALJ proceeds to step

five.” Lewis, 858 F.3d at 862.

The fifth and final step requires the ALJ to consider the claimant’s RFC, age,

education, and work experience in order to determine whether he can make an

adjustment to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At this point,

“the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that

the claimant can perform other work that ‘exists in significant numbers in the national

economy.’” Lewis, 858 F.3d at 862 (quoting Mascio, 780 F.3d at 635). “The

Commissioner typically offers this evidence through the testimony of a vocational expert

responding to a hypothetical that incorporates the claimant’s limitations.” Id. (quoting

Mascio, 780 F.3d at 635). If the claimant can perform other work, the ALJ will find her

“not disabled.” 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If he cannot perform

other work, the ALJ will find him “disabled.” Id.

Applying the sequential evaluation process in this case, the ALJ found Claimant

satisfied the insured status requirements through December 31, 2021, and did not engage

in substantial gainful activity during the relevant time period. Id. Further, the ALJ found

that the following conditions constituted “severe” impairments, as defined by 20 CFR

404.1520(c): degenerative disc disease of the cervical, lumbar and thoracic spine,

coronary artery disease, chronic obstructive pulmonary disease, obstructive sleep apnea,

and obesity. Id. However, she found that those impairments, or a combination thereof,

failed to meet or medically equal any of the impairments listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (Tr. 16). Upon assessing Claimant’s RFC, the ALJ determined as

follows:

Through the date last insured, the claimant had the residual functional

capacity to perform light work as defined in 20 CFR 404.1567(b) except he

can occasionally push and pull with the left upper extremity; occasionally

climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and never

climb ladders, ropes, or scaffolds. He can occasionally reach and handle

with the left upper extremity. He must avoid more than occasional exposure

to temperature extremes, vibration, fumes, odors, dust, gases, and poor

ventilation; and can never work at unprotected heights or around dangerous

moving machinery. He must be able to use a cane when standing and

walking.

(Tr. 17). The ALJ then concluded that, through the date last insured, Claimant was

capable of performing past relevant work as a customer service representative, which was

sedentary level, SVP-3 work, 299.357-014. (Tr. 21). The ALJ explained that this past

relevant work did not require the performance of work-related activities precluded by the

claimant’s residual functional capacity.

In support of her conclusion, the ALJ pointed to Claimant’s testimony that his past

work as a customer service representative was performed over the telephone in a seated

position and required him to lift no more than five to 10 pounds. Id. Because the

Dictionary of Occupational Titles (“DOT”) does not address the use of a cane, the ALJ

enlisted a vocational expert (“VE”), who relied upon his years of experience to aid in the

ALJ’s finding that Claimant could perform his past work as actually and generally

performed under the RFC. Id. As a result, the ALJ concluded that Claimant was not under

a disability during the relevant time period. Id.

II. LEGAL STANDARD

This Court has a narrow role in reviewing the Commissioner’s final decision to

deny benefits: it “must uphold the factual findings of the [ALJ] if they are supported by

substantial evidence and were reached through application of the correct legal standard.”

Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (quoting Johnson v. Barnhart, 434

F.3d 650, 653 (4th Cir. 2005) (per curiam)). “Substantial evidence” is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion,” and it

must be “more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). In

other words, this Court “looks to [the] administrative record and asks whether it contains

‘sufficient evidence’ to support the agency’s factual determinations.” Id. (alteration

omitted). “[T]he threshold for such evidentiary sufficiency is not high.” Id. “In reviewing

for substantial evidence, [this Court] do[es] not undertake to reweigh conflicting

evidence, make credibility determinations, or substitute [its] judgment for that of the

[ALJ].” Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.

1996)). Even if “reasonable minds [could] differ as to whether a claimant is disabled,” this

Court upholds the ALJ’s decision if it is supported by substantial evidence. Id. (quoting

Craig, 76 F.3d at 589).

III. ANALYSIS

Claimant’s arguments are twofold. First, he argues that the ALJ erred by failing to

fully develop the medical evidence of record with respect to Claimant’s severe

impairments, and second, that the ALJ erred by failing to consider Claimant’s

impairments in combination. (ECF No. 12 at 12–17). Claimant asks this Court to find

him disabled and award him benefits or to remand this matter to the ALJ for further

consideration. (Id. at 16). The Commissioner responds that the ALJ’s determination is

supported by substantial evidence and that Claimant has not properly developed his

arguments, resulting in waiver under well-established precedent. (ECF No. 17 at 8–13).

A. Development of the Record

Claimant first argues that the ALJ erred by failing “to fully develop and give full

analysis and consideration of all medical and mental evidence regarding Claimant’s

medical and mental impairments.” (ECF No. 12 at 13). In support of his broad statement,

Claimant simply lists a number of conditions,6 and repeats his vague assertion “that the

5F

ALJ failed to develop medical evidence for [them].” Id. Lastly, without providing any

analysis or discussion, Claimant concludes by simply listing several portions of his own

testimony from the record, including statements regarding his ability to work and drive;

his conditions, symptoms, and reports of pain; daily activities; past job duties; medication

regimen and previous surgeries; use of a cane, his ability to sit, stand, lift, and walk; and

finally, that “the weather has an effect on his back pain.” (ECF No. 12 at 13-16 (citing Tr.

17, 43-56)). Following this last statement regarding the weather, Claimant’s brief abruptly

turns to the next alleged error, discussed infra, without addressing the connection

between the conditions and testimony listed by Claimant to his conclusory statement that

the ALJ failed to fully develop and give full analysis and consideration to all the evidence.

On review, the undersigned FINDS that Claimant failed to demonstrate error on

this basis. “An ALJ’s duty to develop the record further is triggered only when there is

ambiguous evidence or when the record is inadequate to allow for proper evaluation of

the evidence.” Perry v. Astrue, No. 3:10-cv-01248, 2011 WL 5006505, at *16 (S.D.W. Va.

Oct. 20, 2011) (quoting Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001)).

Simply put, Claimant has not shown that there is ambiguous evidence, or that the record

6 Specifically, Claimant asserted as follows:

The multiple medical conditions and severe mental conditions that the ALJ failed to

develop medical evidence for includes: degenerative disc disease of the cervical, lumbar

and thoracic spine, degenerative joint disease, coronary artery disease, chronic obstructive

pulmonary disease, obstructive sleep apnea, obesity, cervical fusion with radiculopathy,

major depressive disorder, anxiety, umbilical hernia, bilateral carpal tunnel syndrome,

high blood pressure, high cholesterol, heart problems, coronary bypass x 5, defibrillator for

heart, seizures, attention deficit disorder and obesity.

(ECF No. 12 at 13).

was inadequate to allow for proper evaluation of the evidence. Nothing in Claimant’s brief

provides any description, analysis, or explanation how his quoted testimony and list of

impairments relates to the ALJ’s analysis or any deficiencies therein. While Claimant

asserts that the ALJ failed to properly develop the record in this case, ironically, Claimant

has fundamentally failed to demonstrate—or even address why—further development by

the ALJ was purportedly necessary. See id. Particularly, Claimant has not addressed what

additional development was needed in this case, the basis for asserting further

development was necessary, or the basis for his assertion that the ALJ’s failure to do so

constituted error. (See ECF No. 16 at 13–14.)

As the Fourth Circuit explained, “[a] party waives an argument by failing to develop

its argument—even if its brief takes a passing shot at the issue.” Haperin v. Saul, 855 F.

App’x 114, 121 n.8 (4th Cir. 2021) (internal citations omitted). See also Duckworth v.

Berryhill, 5:15-cv-00129, 2017 WL 1528757, at *5 (W.D.N.C. Apr. 26, 2017) (“It is well-

established that ‘issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.’” (citations omitted)); Heather M.

v. Berryhill, 384 F. Supp. 3d 928, 934 (N.D. Ill. June 5, 2019) (stating that “Judges are

not required to sift through the record without direction from counsel—especially a

thousand-page record—and find evidentiary support for contentions tossed out like salt

strewn on an icy sidewalk”).

This Court rejected a claimant’s undeveloped argument in a strikingly similar

matter, holding that courts should not be tasked with researching and constructing

arguments for a claimant. Hensley v. Kijakazi, 3:21-cv-00178, 2021 WL 5871542, at *13–

14 (S.D. W. Va. Nov. 23, 2021), adopted, 2021 WL 5867126, at *1 (Dec. 10, 2021). Much

like Claimant’s brief in the instant matter, the Hensley claimant’s brief merely listed

pieces of medical evidence, followed by an unadorned citation to the legal standard.

Hensley did not articulate how the legal standard applied to her case, and—further—did

not identify, specify, or indicate any deficiencies or gaps in the record; any further

evidence necessary for the ALJ to develop; or how any of the evidence prompted further

investigation or any further inquiries that the ALJ should have made. See id. Based upon

these fundamental deficiencies, this Court found in Hensley that the claimant’s

“conclusory assertion that the ALJ failed to develop the record” did not assert a viable

challenge to the Commissioner’s decision. See id. Just as in Hensley, Claimant’s

conclusory statement in the matter sub judice that the ALJ failed in some unspecified way

to develop the record does not identify any error warranting remand. (Pl.’s Br. at 11-13).

Because Claimant’s first allegation of error shares the same fundamental deficiencies

presented in Hensley, he has plainly failed to assert a viable challenge to the

Commissioner’s decision and his request for relief should be denied on this basis alone.

Regardless of these inadequacies, Claimant’s challenge to the ALJ’s decision also

fails on the merits, as the undersigned FINDS that the ALJ’s thorough analysis in her

written decision is well-supported by substantial evidence, and builds the requisite

“accurate and logical bridge from the evidence to her conclusions.” Arakas v. Comm’r of

Soc. Sec., 983 F.3d 83, 95 (4th Cir. 2020). First, the conditions and symptoms listed by

Claimant were addressed in the ALJ’s written decision. The ALJ fully considered

Claimant’s subjective complaints of pain and reported symptoms; she discussed at length

Claimant’s testimony regarding his back and leg pain, leg swelling, and syncope, difficulty

with ambulation, standing or walking extended periods, lifting more than a gallon of milk,

personal care, and household chores. (Tr. 17-18). Additionally, she expressly considered

Claimant’s testimony and allegations of his mental-health conditions, fully discussing

them at step two of the sequential process and explaining her reasoning for determining

that these conditions were non-severe based upon Claimant’s treatment with medication.

(Tr. 17-18). Further, the ALJ thoroughly discussed the basis for her conclusion that

Claimant’s statements regarding the intensity, persistence, and limiting effects of his

symptoms were not entirely consistent with the medical evidence and other evidence in

the record. (Tr. 18). See Johnson, 434 F.3d at 653 (explaining that an ALJ’s RFC finding

must be limited solely to those limitations that are supported by the record).

Claimant’s mere disagreement with the ALJ’s conclusions is simply insufficient to

establish error—particularly when the ALJ spent the remainder of the decision supporting

this conclusion with the record evidence and explaining her conclusion that Claimant

could perform a reduced range of light work. (Tr. 18-21). First, the ALJ considered the

relevant evidence of Claimant’s musculoskeletal impairments, discussing Claimant’s

negative lumbar spine x-ray in 2020 and occasional displays of reduced sensation and

ambulation with a cane in 2021. (Tr. 18; see, e.g., 1179, 1761). She also discussed at length

Claimant’s consultative examinations from December 2020 and February 2022, pointing

to medical records showing poor effort during muscle testing, steady ambulation with a

limp on the right, and ability to walk in tandem, on tip toes, and on heels. (Tr. 18, 1181-

85, 1832-35).

Next, the ALJ carefully considered Claimant’s syncope issues stemming from

cardiovascular and sleep impairments. (Tr. 19-21). For example, she considered

Claimant’s diagnosis for obstructive sleep apnea, which was corrected with a CPAP

machine, and his negative electroencephalogram (“EEG”). (Tr. 19, 744-46, 748). She

discussed Claimant’s July 2020 heart surgery at length, pointing to medical records which

showed an improvement in Claimant’s symptoms as well as his echocardiogram and

implantation with a pacemaker. (Tr. 19, 1060- 61, 1200-01). The ALJ discussed Claimant’s

reports of continued syncope spells in the medical records, noting they were not witnessed

by any medical professionals, testing was negative, and no instances were reflected in the

pacemaker report. (Tr. 19; see, e.g., Tr. 1535, 1679-84).

Following the ALJ’s careful consideration of Claimant’s subjective allegations and

the relevant medical evidence, the ALJ tied the evidence to her overall conclusions with

an explanation of the logical basis for those conclusions. The ALJ explained that

Claimant’s allegations were not fully consistent with the record evidence, referencing

Claimant’s normal ejection fraction and that his edema improved following his July 2020

heart surgery. (Tr. 19). Regarding his allegations of syncope, the ALJ explained that these

events could not be reproduced or reflected in any testing, and that Claimant was

suggested to follow up with a syncope clinic consultation in November 2021 but did not

do so. (Tr. 19). Further, the ALJ explained why she included limitations to pushing,

pulling, reaching, and handling with Claimant’s left upper extremity in her RFC

determination, noting that despite giving poor effort in his consultative examination, he

had reduced strength deficits in his upper-left side. (Tr. 19-20). Finally, the ALJ explained

that she included a limitation to cane use in the RFC due to Claimant’s occasional findings

of decreased sensation in his legs and feet. (Tr. 20).

Next, the ALJ discussed the prior decision from January 2019. When adjudicating

a disability claim that involves a prior ALJ decision, the adjudicator must consider the

prior findings and give them appropriate weight in light of all relevant facts and

circumstances. See Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d 473, 474–75 (4th

Cir. 1999). In accordance with the regulatory factors for an adjudicator to consider in

determining the weight to be given to prior findings, see SSAR 00-1(4), 2000 WL 43774,

at *4 (Jan. 12, 2000), the ALJ noted that at the time of the prior decision, Claimant had

severe impairments of degenerative disc disease, degenerative joint disease, status-post

cervical fusion, chronic bronchitis and depressive disorder (Tr. 20, 67-76). She also noted

that Claimant could perform a range of light exertion work (Tr. 20, 67-76). The ALJ

properly explained why she deviated from these prior findings, explaining that

“additional or greater limitation[s] [were] evidenced by subsequent records showing that

[Plaintiff] has coronary artery disease and he has new complaints of syncope,” meriting

the addition of further environmental limitations and the use of a cane (Tr. 20). However,

the ALJ explained that the prior finding that Claimant had severe mental impairments

was afforded little weight, as although he showed some abnormalities in his psychological

consultative examinations, he “received minimal conservative treatment with no

abnormal findings reported by the claimant’s treating physicians who saw the claimant

frequently.” (Tr. 20).

The ALJ then discussed the prior administrative medical findings and adopted

many of their limitations in her RFC finding. The ALJ found the prior findings from

medical experts Drs. Amigo and Wirts that Claimant could perform a range of light work

persuasive, explaining that they supported their conclusions with internal notations

regarding Claimant’s physical functioning. Id. However, the ALJ determined those

findings were only partially consistent with the overall record that supported Claimant’s

cane use—and she explained the evidentiary and logical basis for this determination. (Tr.

20, 107-09, 122-23). She engaged in a similar analysis with respect to Claimant’s mental-

health impairments. For instance, the ALJ explained why she found persuasive the

findings by the State-agency psychological experts, Drs. Todd and Boggess, that Claimant

did not suffer from severe mental impairments. She noted that these findings were

supported by their discussion of Claimant’s mild social deficits and consistently

unremarkable display of symptoms on examination, and that they were consistent with

Claimant’s minimal mental-health treatment and normal findings within the record (Tr.

20, 107-09, 122-23).

Similarly, the ALJ explained the evidentiary and logical basis for her finding that

the opinion of Dr. Webb was unpersuasive—namely, that Dr. Webb’s own notations in the

medical records as well as other record evidence conflicted with her findings that

Claimant was limited to performance of less-than-sedentary work. (Tr. 21, 941). In

particular, there was “no evidence [Claimant] requires the ability to alternate positions

two to three times a day.” (Tr. 21). Further, the ALJ found no evidence that Claimant had

any deficits in his right-upper-and-lower extremities, or evidence of any difficulties with

fine manipulation—while there was record evidence indicating that Claimant had no-

more-than-mild strength deficits, some limping but otherwise stable gait, and only trace

edema. (Tr. 21).

After extensive discussion and consideration of the entire record, the ALJ

determined that Claimant could perform work within the confines of the ALJ’s

comprehensive RFC assessment, and that Claimant remained capable of performing his

past relevant sedentary work—the least-demanding physical work under the Social-

Security Administration’s regulations. (Tr. 21). The ALJ’s ample discussion of the relevant

evidence and explanation of how this evidence supported her conclusion that Claimant

could perform his past relevant sedentary work easily clears the “not high” bar for

substantial evidence. See Biestek, 139 S. Ct. at 1154; Ladda v. Berryhill, 749 F. App’x 166,

173 (4th Cir. 2018) (remanding for further function-by-function not required where the

ALJ “sufficiently explain[s] his conclusions” and “use[s] evidence from the record to

explain” the RFC finding).

In response to the ALJ’s thorough analysis, Claimant lists various diagnoses to

imply that further limitations were warranted. (Pl.’s Br. at 13). However, his citation to

mere diagnoses is insufficient to warrant remand. Rather, “[t]here must be a showing of

related functional loss.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Claimant

simply has not shown how these diagnoses caused any particular functional loss.

Furthermore, the ALJ fully recognized Claimant’s allegations and diagnoses in her

discussion of Claimant’s severe impairments (Tr. 13-16), her discussion of whether

Claimant met a listing (Tr. 16-17), and in her RFC analysis (Tr. 17-21). The ALJ fully

considered the evidence Claimant cites, and to the extent the ALJ did not discuss every

allegation of Claimant or every medical note in the record, “there is no rigid requirement

that the ALJ specifically refer to every piece of evidence in h[er] decision.” See Reid v.

Comm’r of Soc. Sec. Admin., 769 F.3d 861, 865 (4th Cir. 2014).

While Claimant may feel that further development of the record was required,

there is nothing to support this personal belief. At the hearing before the ALJ on

December 12, 2022, the ALJ specifically asked Claimant’s counsel directly if he “[knew]

of any additional evidence that need[ed] to be submitted.” (Tr. 42). Counsel responded

on the record that there was none. (Tr. 42). Now before this Court, Claimant has failed to

point to any record evidence indicating that follow-up was necessary; did not specify or

reference any additional records which were outstanding; and did not point to any records

not considered by the ALJ. In contrast, the ALJ’s written decision is supported by a record

comprised of nearly 1600 pages of medical evidence, including copious treatment records

and a prior ALJ decision. Claimant’s vague assertion the ALJ erred by not developing the

record is so plainly lacking in merit pursuant to well-established Fourth-Circuit

jurisprudence that, quite frankly, it borders upon frivolousness under the circumstances.

In summary, as Claimant’s undeveloped argument fails to provide any evidence or

argument that further limitations were needed or that further record development was

required, and the ALJ’s accurate and logical bridge between the evidence and her

determination shows that substantial evidence supports her conclusions, the final

decision of the Commissioner must be affirmed.

B. Combination of Impairments

Turning to Claimant’s second and final assertion of error, Claimant contends that

the combined effect of his medical conditions—degenerative disc disease of the cervical,

lumbar and thoracic spine, coronary artery disease, chronic obstructive pulmonary disease,

obstructive sleep apnea, obesity, degenerative joint disease, status post cervical fusion,

chronic bronchitis, and anxiety and depressive disorder—when considered as a whole are

sufficiently severe to meet a recognized disability Listing, even if they fall short individually.

(ECF No. 12 at 16-17 (citing 42 U.S.C. § 423(d)(2); Hines v. Bowen, 872 F.2d 56, 59 (4th

Cir. 1989)). The Listings to which Claimant refers are a regulatory device used to

streamline the decision-making process by identifying those claimants whose medical

impairments are so severe that they would be disabled regardless of their vocational

background. Sullivan v. Zebley, 493 U.S. 521, 532 (1990).

To meet or medically equal a listing, a claimant bears the burden to prove that he

“meet[s] all of the specified medical criteria,” meaning that meeting only some of the

criteria of a listing—no matter how severely—does not qualify. Id. at 530 (emphasis in

original). See also 20 C.F.R. §§ 404.1512(a), 416.912(a); Bowen, 482 U.S. at 146, n.5. The

U.S. Supreme Court ruled in Zebley that a claimant cannot satisfy his or her burden by

showing that the overall or accumulated functional impact of his combination of

impairments is as severe as that of a listed impairment. Zebley, 493 U.S. at 532 (citing

SSR 83-19, 1983 WL 31248, at *3 (Jan. 1, 1983) (“[I]t is incorrect to consider whether the

listing is equaled on the basis of an assessment of overall functional impairment.”).

Moreover, a conclusory statement that a combination of impairments medically equaled

a listing is insufficient to satisfy a claimant’s burden of proof. See Byrd v. Apfel, 98-cv-

1781, 1998 WL 911718, at *4–5 (4th Cir. Dec. 31, 1998) (rejecting the appellant’s argument

that a combination of impairments that “come close” to meeting other listings medically

equals a listing, and finding a conclusory statement that a combination of impairments

medically equaled a listing was insufficient to satisfy claimant’s burden).

In the matter sub judice, it is plainly evident that Claimant failed to carry his

burden of proof. First and foremost, similar to the deficiency plaguing Claimant’s first

assertion of error, this argument is perfunctory and undeveloped. The totality of support

for Claimant’s position is contained in the following six vague, unsupported statements:

The record in this case clearly establishes that the claimant has multiple

severe medical and mental problems.

Even a cursory review of the evidence of the record would conclude that

the medical and mental problems, when combined, totally disable her

[sic] and exceed the combination of impairments listing provided by the

Social Security Regulations for disability.

The overwhelming and uncontradicted competent medical evidence

from multiple treating physicians confirms that the combined effect of

the plaintiff’s severe physical impairments render her [sic] unable to

function in a substantial and gainful activity in any type of job.

The claimant respectfully submits that the combined effects of his

impairments were not properly considered and evaluated by the ALJ.

The ALJ failed to consider the medical records of longtime treating

physicians.

The ALJ substituted her own opinion for those of the claimants treating

physicians.

(ECF No. 12 at 17-18). Based upon these unsupported assertions, Claimant makes the

conclusory statement that the ALJ’s written decision “is contrary to the clear medical

evidence” and thus “should be remanded for a more complete consideration and analysis

of Claimant’s full and complete medical evidence.” (ECF No. 12 at 18). In other words,

Claimant offers no evidence or explanation to support his position beyond a general

statement of error. This is patently improper. As this Court explained in a previous

decision, a mere conclusory assertion by a claimant that her multiple impairments “when

combined, totally disable her and exceed the combination of impairments listing” is

simply insufficient to demonstrate error. Hensley, 2021 WL 5871542, at *16. Raising such

a challenge “only in a conclusory fashion . . . fails to assert a specific challenge to the

Commissioner’s decision,” rendering the challenge “effectively waived.” Id. See also

Adkins v. Colvin, 3:14–27920, 2016 WL 854106, at *9 (S.D. W. Va. Feb. 11, 2016)

(rejecting a claimant’s similar argument when he failed to identify the listing he allegedly

met in combination), adopted, 2016 WL 868342, at *1 (S.D. W. Va. Mar. 4, 2016).

In essence, Claimant is asking this Court to step into the shoes of an advocate, and

find evidentiary support for his contentions. This is patently improper. See Haperin, 855

F. App’x 121 n.8. See also Duckworth, 2017 WL 1528757, at *5 (“It is well-established that

‘issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived”); Heather M. v. Berryhill, 384 F. Supp. 3d 928, 934

(“Judges are not required to sift through the record without direction from counsel—

especially a thousand-page record—and find evidentiary support for contentions tossed

out like salt strewn on an icy sidewalk[.]).

Even aside from the issue of waiver, Claimant nonetheless completely failed to

meet his burden of proof. It is well-established that simply noting a claimant’s various

diagnoses is insufficient to demonstrate that he met or medically equaled a Listing based

on his combination of impairments. See 20 C.F.R. § 404.1525(d) (“Your impairment(s)

cannot meet the criteria of a listing based only on a diagnosis.”); Byrd, 1998 WL 911718,

at *4 (“It is not enough that the impairment have the diagnosis of a listed impairment; it

must also have the findings shown in the listing of that impairment.”); Raines v. Kijakazi,

No. 3:21-CV-0045, 2021 WL 4258733, at *12 (S.D. W. Va. Aug. 27, 2021), adopted 2021

WL 4255625, at *1 (Sept. 17, 2021) (rejecting similar argument when the claimant failed

to identify either the evidence the ALJ purportedly failed to “flesh out” in evaluating the

claimant’s impairments in combination, or the evidence which supports the claimant’s

position).

In fact, the six statements Claimant directs to this assertion of error are so vague,

conclusory, and devoid of support by any record evidence, argument, or explanation, that

Claimant’s assertion of error once again encroaches into the realm of frivolousness.

Claimant makes no effort to identify, specify, or explain the “more complete consideration

and analysis” he seeks; the evidence he claims was “not properly considered and evaluated

by the ALJ;” the “longtime treating physicians” to whom he vaguely alludes; the “medical

records” not considered by the ALJ; or the manner in which the ALJ purportedly

“substituted her own opinion for those of the Claimant’s treating physicians.” Id. at 17-18.

Despite his claims that “a cursory review of the evidence of the record” shows that the

ALJ’s decision is “erroneous and contrary to the clear medical evidence,” Claimant failed

to point to any evidence in support of his conclusory assertion that his various diagnoses

met or equaled a listing—or even to identify which listing he believes his combination of

impairments meets or medically equals. (See ECF No. 12 at 16-17). In short, while it is

Claimant’s burden to demonstrate that a Listing was met or medically equaled, he failed

to identify any evidence that would meet the requisite criteria. (See ECF No. 12 at 16-17).

Moreover, contrary to Claimant’s assertion of error, the ALJ did consider the

combined effects of the Claimant’s impairments. First, the ALJ expressly stated in her

decision that the Claimant “does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments,” and that her

RFC finding was determined pursuant to “careful consideration of the entire record[.]”

(Tr. 16-17). As the Fourth Circuit has explained, “absent evidence to the contrary,” where

an ALJ states that she has carefully considered the entire record, a reviewing court should

“take her at her word.” Reid, 769 F.3d at 865.

Finally, the ALJ expressly addressed the relevant listings in her written decision.

(Tr. 16-17). She properly evaluated Claimant’s musculoskeletal issues under Listing 1.15

and Listing 1.16, his chronic obstructive pulmonary disorder and sleep apnea under

Listing 3.02, and his cardiovascular impairments under Listing 4.04 and Listing 4.05.

(Tr. 16). Further, the ALJ evaluated Claimant’s obesity condition through its effects on

other body systems in accordance with the applicable regulations, as obesity does not have

corresponding Listings. (Tr. 16-17). Impairments in combination are properly considered

where—as in the matter sub judice—the ALJ discusses each impairment separately and

finds that the claimant’s impairments, when considered together, did not prevent him

from performing work activity. See, e.g., Hundley v. Kijakazi, 3:21-cv-00568, 2022 WL

1197031, at *13 (S.D. W. Va. Mar. 31, 2022), adopted, 2022 WL 1196983, at *1 (Apr. 21,

2022); Wiseman v. Colvin, 3:14–cv–28750, 2015 WL 9075457, at *19 (S.D. W. Va. Nov.

24, 2015), adopted, 2015 WL 9008899, at *1 (Dec. 15, 2015). See also Adkins, 2016 WL

854106, at *9 (finding substantial evidence supported the ALJ’s decision where the ALJ

considered the claimant’s impairments in the listings analysis and in rendering the RFC).

In short, there is simply no indication that the ALJ failed to assess the totality of

Claimant’s impairments against the record evidence. See Blankenship, 2012 WL 259952,

at *12 (concluding that ALJ properly considered impairments in combination where he

“posed detailed hypothetical questions to the [VE] that indisputably included a generous

representation of [claimant’s] functional limitations”); Parker v. Astrue, No. 6:07-cv-

00472, 2008 WL 2405026, at *2 (S.D.W. Va. June 11, 2008) (determining that ALJ

properly considered impairments in combination where he “performed a comprehensive

[RFC] evaluation” and assessed claimant’s credibility by “analyz[ing] activities of daily

living, medications and side effects, and [claimant’s] alleged mental and physical

limitations”). The ALJ in this case did exactly as required regarding consideration of all

Claimant’s impairments in combination at step three, and her decision is supported by

substantial evidence; further, Claimant failed to demonstrate any error. Accordingly, the

final decision of the Commissioner must be affirmed.

IV. CONCLUSION

For the foregoing reasons, the undersigned respectfully RECOMMENDS that the

presiding District Judge DENY Claimant’s request to reverse the Commissioner’s

decision (ECF No. 12), GRANT the Commissioner’s request to affirm his decision (ECF

No. 15), AFFIRM the final decision of the Commissioner, and DISMISS this action from

the Court’s active docket.

The parties are notified that this Proposed Findings and Recommendation is

hereby FILED and a copy will be submitted to the Honorable Robert C. Chambers,

United States District Judge. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and

Federal Rule of Civil Procedure 72(b), the parties shall have fourteen (14) days from the

date of the filing of this Proposed Findings and Recommendation to file with the Clerk of

this Court specific written objections identifying the portions of the Proposed Findings

and Recommendation to which objection is made and the basis of such objection.

Extension of this time period may be granted for good cause shown. Copies of any

objections shall be served on opposing parties and provided to Judge Chambers.

Failure to file written objections as set forth above shall constitute a waiver of de

novo review by the District Court and a waiver of appellate review by the Fourth Circuit

Court of Appeals. 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 155 (1985);

Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Wright v. Collins, 766 F.2d 841,

846 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

The Clerk is DIRECTED to file this Proposed Findings and Recommendation and

to transmit a copy of the same to counsel of record.

ENTERED: August 20, 2024

/ NAA aonb} = oo

Dwane L. Tinsley

—._ United States Magistrate Judge

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