Opinion
Civil Action 2:24-cv-91
12-20-2024
SONIA L.-B.,[1]Plaintiff, v. CAROLYN W. COLVIN,[2]ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
Plaintiff Sonia L.-B. ("Plaintiff") seeks judicial review of the Commissioner of Social Security's denial of her claim for disability benefits ("DIB"), concluding that her previous period of disability ended because of medical improvement. Plaintiff argues that the Administrate Law Judge ("ALJ") erred in three ways: by (1) improperly determining that Plaintiff no longer met a listing without considering if she medically equaled a listing; (2) failing to support with substantial evidence the conclusion that Plaintiff's systemic vasculitis and systemic lupus erythematosus did not meet a listing; (3) and failing to evaluate the non-examining state agency medical consultants' opinions using the required factors. This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. §§ 636(b) (1) (B) and (C), and Rule 72(b) of the Federal Rules of Civil Procedure. This Report recommends that the Court affirm the final decision of the Commissioner.
I. PROCEDURAL BACKGROUND
On June 23, 2016, the Social Security Administration granted Plaintiff's application for DIB, finding that her disability began on February 7, 2016. (R. 106-07, 150). In her original application for DIB, Plaintiff alleged disability due to lupus, anemia, chronic fatigue, joint pain, joint swelling, a vitamin D deficiency, chronic rectal bleeding, diarrhea, vomiting, and fevers. (R. 100-01, 107) . The agency found Plaintiff disabled because it determined she met the criteria for Listing 14.03 for systemic vasculitis, with medically determinable impairments ("MDI(s)") of systemic vasculitis, iron deficiency anemia, and eczema. (R. 12, 103-04, 107); 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.03.
On August 15, 2019, the Social Security Administration completed a continuing disability review ("CDR") and found that Plaintiff no longer qualified for disability benefits because her medical condition had improved. (R. 112-14, 120). On February 18, 2020, the Social Security Administration confirmed the cessation of benefits determination on reconsideration. (R. 122) . An ALJ conducted two administrative hearings held February 5, 2021, and September 3, 2021. (R. 69-99) . On September 23, 2021, the ALJ issued a decision finding that Plaintiff's disability ended on August 15, 2019, and that Plaintiff had not become disabled again since then. (R. 127-39).
On May 2, 2022, the Appeals Council held that the ALJ erred in using 20 C.F.R. § 404.1520c instead of § 404.1527 in evaluating Plaintiff's case because of the initial filing date, vacated the decision, and remanded the matter to a different ALJ for consideration. (R. 147-48) . Following remand, the new ALJ held a third administrative hearing on July 19, 2023. (R. 40-68). Counsel represented Plaintiff at the hearing, and both Plaintiff and a vocational expert ("VE") testified. Id.
On October 19, 2023, the new ALJ found under the correct regulations that Plaintiff's disability ended on August 15, 2019. (R. 10-24) . The ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Pt. 404, Subpart P, Appendix 1. (R. 13-16). The ALJ also found that Plaintiff's residual functioning capacity ("RFC") allowed her to perform sedentary work with limitations. (R. 17-21).
The Appeals Council denied Plaintiff's request for review, and the decision of the Commissioner following the 2023 hearing became final. (R. 1-3) . On February 9, 2024, Plaintiff filed her complaint in this court. Compl. (ECF No. 1) . Plaintiff seeks judicial review of the Commissioner's final decision that she was no longer disabled, claiming that the ALJ failed to comply with the regulations in her "evaluation of whether Plaintiff's systemic vasculitis and systemic lupus erythematosus medically equaled Listings 14.03 or 14.02," that the ALJ failed to support this evaluation with substantial evidence, and "the ALJ's evaluation of Dr. Camden's and Dr. Hutchinson's opinions failed to comply with regulation and was not supported by substantial evidence." Pl.'s Br. Supp. Soc. Sec. Appeal ("Pl.'s Br.") (ECF No. 10, at 7, 10, 13) .
The Commissioner filed an opposition brief, arguing that the ALJ explained that the medical record no longer showed the presence of two or more constitutional symptoms, and that substantial evidence supported that finding. Mem. Supp. Def.'s Mot. Summ. J. & Opp'n Pl.'s Mot. Summ. J. ("Def.'s Br.") (ECF No. 11, at 1, 1620). The Commissioner also argues that the ALJ either implicitly or explicitly addressed the relevant regulatory factors when weighing the state agency medical consultants' opinions. Id. at 2, 24. Plaintiff replied. Pl.'s Reply (ECF No. 12). After a review of the record, this Report considers each of these arguments.
II. FACTUAL BACKGROUND
Plaintiff was 41 years old when her disability ceased August 15, 2019. (R. 108) . She has a high school diploma. (R. 407) . Before receiving disability benefits, Plaintiff worked as a forklift operator, a Subway restaurant employee, and most recently, a seamer operator. (R. 419).
A. Plaintiff's Health Treatment
Plaintiff's arguments do not require a complete review of her medical history as she disputes only the ALJ's assessment of her medical history and related opinion evidence since on, or around, August 15, 2019, her alleged date of medical improvement.
Plaintiff's first medical visit after her cessation date occurred on September 15, 2019, where she presented to the emergency room with leg pain and swelling after she tattooed her own lower right leg. (R. 1178-79) . She had no fever, was ambulatory and neurovascularly intact, and denied numbness or weakness. (R. 1179).
The Social Security Administration determined that Plaintiff was no longer disabled based on State Agency Consultant Dr. Camden's opinion at the initial level of continuing disability review provided on August 12, 2019, and medical records received in June and July of 2019. (R. 108-119, 155). Using these materials, the agency determined that her official cessation date was August 15, 2019. (R. 120).
On November 12, 2019, Plaintiff followed up on her lupus and Vitamin D deficiency with Julianne Orlowski, D.O. (R. 1244-46). Plaintiff appeared alert and was not in acute distress. (R. 1244).
She also experienced no inflammatory changes to the joints of the upper and lower extremities, maintained her hand grasps, had only mild crepitus in her knees that did not restrict her range of motion, and denied all other symptoms except for fatigue. (R. 1244-45). She reported no localizing areas of discomfort during her musculoskeletal exam. (R. 1244).
On December 5, 2019, Plaintiff visited Jessica Doggett, N.P., for her anemia. (R. 1269) . Plaintiff reported that she was doing "relatively well," and that her fatigue remained unchanged. (R. 1269) . Upon examination, the nurse practitioner recorded fatigue and dizziness as symptoms, but not malaise or fever. (R. 1270) . Plaintiff also had normal muscle strength. (R. 1270). The nurse practitioner also reported that Plaintiff was "[f]ully active" and "able to carry on all pre-disease performance without restriction." (R. 1270).
On February 12, 2020, Plaintiff visited Dr. Orlowski for a follow-up on her lupus and Vitamin D deficiency. (R. 1284-87). Plaintiff reported "greater musculoskeletal symptoms," specifically in her fingers, wrists, elbows, and knees. (R. 1284). Dr. Orlowski noted that "patient has had symptoms often that are disproportionate to physical examination findings." Id. Upon examination, Plaintiff was not in acute distress, and she had no active inflammatory changes to her joints. (R. 1285).
Plaintiff visited the emergency room on April 18, 2020, for a bleeding ear. (R. 1300). Upon examination, she had no fever, malaise, or fatigue. (R. 1301). On April 27, 2020, Plaintiff attended a follow-up appointment for her lupus and Vitamin D deficiency. (R. 1280-83). The osteopath noted that Plaintiff was doing "fairly well," and that Plaintiff considered the addition of Cymbalta helpful in managing symptoms. (R. 1280-81).
On June 2, 2020, Plaintiff again visited Dr. Orlowski for her lupus and Vitamin D deficiency. (R. 1277-79). Plaintiff denied experiencing fever but admitted to fatigue. (R. 1277). Plaintiff expressed concern over when she received her Rituxan prescription because of delays in coordinating between doctors and facilities, and that she sometimes feels "desperate" by the time she can get the medication. Id. Despite this report, she appeared alert, in no acute distress, and well nourished. Id. She also had no significant joint swelling. (R. 1278).
On August 12, 2020, Plaintiff again visited Dr. Orlowski. (R. 1454-56). Dr. Orlowski noted that Plaintiff "[c]ontinues to struggle most with an ongoing degree of musculoskeletal symptoms," but that she "is not in as much pain overall in general." (R. 1454) . Plaintiff began taking a low dosage of Arava after experiencing significant relief from a therapeutic trial of Prednisone. (R. 1454).
Later that month on August 21, 2020, Plaintiff visited Lakeview Pediatrics and Family Medicine, where her treatment notes reflected that she did not experience fatigue, fever, swelling of joints, or weakness, but that she did experience muscle or joint pain and migraines. (R. 1429-30). For her physical exam, she had normal gait and 5/5 strength in all extremities. (R. 1431).
On October 7, 2020, Plaintiff sought treatment for two bruises on her lower back. (R. 1403). Her treatment notes reflected no joint pain or fever, and she had normal gait. Id. On November 24, 2020, Plaintiff visited Dr. Orlowski for her lupus and Vitamin D deficiency. (R. 1964-68). Plaintiff reported that her "[i]nflammatory joint symptoms seem to be doing generally well." (R. 1964). Later in Plaintiff's treatment notes, Dr. Orlowski noted that Plaintiff was" [d] oing well on this regimen" of Rituxan, Arava, and Plaquenil, and that she was "relatively stable from [her] perspective." (R. 1964, 1966).
On January 25, 2021, Plaintiff saw Philip Davenport, M.D. for a small carotid aneurysm. (R. 1291-94). Dr. Davenport reported that Plaintiff was alert, oriented, pleasant, and cooperative; he also noted she was able to tandem walk normally and had normal symmetric muscle strength and tone. (R. 1294).
On April 15, 2021, Plaintiff attended an appointment by telephone at Virginia Oncology Associates. (R. 2202-04). She reported that she "continue[d] to do well overall," and that she had "unchanged fatigue." (R. 2202). Plaintiff reported that she had joint pain and fatigue, but not malaise. (R. 2203).
On October 27, 2021, Plaintiff followed up on her lupus and Vitamin D deficiency with Dr. Orlowski. (R. 1947-51). She had no active inflammatory changes to the joints of her upper and lower extremities. (R. 1948) . She had full hand grasps, but Dr. Orlowski reported that Plaintiff's hand grasps were "less than I would expect at her young age." Id. Dr. Orlowski again noted Plaintiff's mild crepitus in her knees but recorded that it did not restrict Plaintiff's range of motion. Id.
On December 10, 2021, Plaintiff presented at the emergency room for low hemoglobin. (R. 2318). Plaintiff was positive for malaise and fatigue, but negative for fever. (R. 2319). Plaintiff received a blood transfusion, and the hospital released her once she reported that she was feeling better. (R. 2324). A few days later on December 16, 2021, Plaintiff followed up on her anemia. (R. 2127-29). She reported fatigue and shortness of breath upon exertion despite her recent iron transfusion. (R. 2127). Plaintiff's doctor indicated that she was positive for fatigue and joint pain, but negative for fever and malaise and had normal muscle strength. (R. 2128).
On January 25, 2022, Plaintiff again followed up with Nurse Practitioner Doggett for lab work. (R. 2121-24). Plaintiff's records revealed that she was negative for fever, malaise, fatigue, weight loss, and joint pain. (R. 2122). Plaintiff's physician again noted that she was "able to carry on all pre-disease performance without restriction." Id.
On March 22, 2022, Plaintiff followed up for her anemia and her recent lab results. (R. 2112-16). Her review of systems indicated she was negative for fever, malaise, fatigue, and weight loss. (R. 2113). Her lab results indicated that she anemic, but that her complete metabolic panel was otherwise normal. (R. 2114). Plaintiff's physician noted that she was "restricted in physically strenuous activity, but ambulatory and able to carry out work of a light or sedentary nature." (R. 2113).
On April 12, 2022, Plaintiff visited Dr. Orlowski to follow up on her lupus and Vitamin D deficiency. (R. 2048-51) . Dr. Orlowski noted that Plaintiff's musculoskeletal symptoms were still active, but that she would be interested in discontinuing Plaintiff's Rituxan prescription or dose it less frequently. (R. 2048, 2050). Examination showed that Plaintiff had no active inflammatory changes to her joints, had full hand grasps, mild crepitus in her knees that did not restrict her range of motion, and generalized stiffness. (R. 2049-50). Dr. Orlowski again noted that Plaintiff's subjective complaints were greater than objective findings. Id.
On July 19, 2022, Plaintiff visited Dr. Orlowski. (R. 204447). Plaintiff reported that she still had some symptomatic days and that the new medication she started taking helped somewhat. (R. 2044). Later that month on July 26, 2022, Plaintiff conducted a telehealth visit with Virginia Oncology Associates to follow up on her anemia. (R. 2104-08). Plaintiff reported continued fatigue and occasional dizziness. (R. 2104). Plaintiff's review of systems indicated that she was positive for malaise and fatigue. (R. 2105, 2146) . Her blood count and iron studies were within normal limits. (R. 2106).
On October 19, 2022, Plaintiff presented to the emergency department for shortness of breath and rectal bleeding following an excisional hemorrhoidectomy five days prior. (R. 2291-303). She reported that she had a fever of 100.7 degrees earlier in the day, which she explained was common because of her lupus. (R. 2293) . Plaintiff did not have a fever at the hospital. (R. 2294) . Her treating physician noted that she was not ill-appearing or in acute distress. (R. 2294). Plaintiff received a blood transfusion and a suture to close a bleeding vascular pedicle. (R. 2303).
On January 3, 2023, Plaintiff conducted a telehealth visit with Nurse Practitioner Doggett to follow up on her anemia. (R. 2093-96) . Plaintiff's records noted the significant bleeding that occurred following her hemorrhoidectomy, and that she was negative for fever, malaise, fatigue, and weight loss. (R. 2093-94). Plaintiff's lab results revealed that her blood count and iron studies were stable. (R. 2095) . On February 3, 2023, Plaintiff received treatment for a toe injury. (R. 2220-23) . Plaintiff denied experiencing fatigue or fevers at that time. (R. 2221). She also had 5/5 muscle strength. (R. 2222).
On March 16, 2023, Plaintiff visited Beth Winke, M.D. for pain management. (R. 2263-67). Plaintiff reported that she could care for herself; had no difficulty concentrating, remembering, or making decisions; and had no difficulty dressing or bathing. (R. 2265). However, Plaintiff did mention that she sometimes had difficulty running errands alone and sometimes had difficulty walking or climbing stairs. Id. Plaintiff reported that she experiences muscle aches, muscle weakness, joint pain, and swelling in her extremities. Id. She also explained that her joint pain is constant but worse in the morning and in cold weather, and that her pain medication helps alleviate the pain. Id. On exam, Plaintiff appeared healthy, had 5/5 strength in all categories, and had full range of motion in her shoulders and hips. (R. 2266) . She had tenderness in her hand joints. (R. 2266) . Dr. Winke prescribed Tramadol to Plaintiff and ordered physical therapy to help pain management. (R. 2262, 2267).
Plaintiff returned to Dr. Winke's office on April 14, 2023, and was examined by Brittany Horton, N.P. (R. 2258-62). Nurse Practitioner Horton's findings were largely the same as the March 2023 visit. (R. 2258-62). Plaintiff did not experience any new symptoms but reported that her pain ranked at ¶ 5/10 that day. (R. 2260) . She again had 5/5 motor strength in all extremities and full range of motion in her shoulders and hips. (R. 2260-61). By this appointment. Plaintiff had not yet started physical therapy because of issues with her insurance coverage. (R. 2262) .
Plaintiff again visited Dr. Winke's office on May 11, 2023, and was examined by Evan Mintz, P.A. (R. 2254-57). Plaintiff's exam findings again stayed consistent. (R. 2254-57). Plaintiff reported that her pain was ranked at 10/10 that day because she did not take Tramadol, but that her medication was otherwise "very effective." (R. 2256). Plaintiff reported that she had exercise intolerance in addition to muscle aches, joint pain, back pain, and numbness. Id. She again had 5/5 strength in all extremities. Id. She had decreased range of motion in her left shoulder, likely because of a tear in her left shoulder revealed by a recent MRI. Id. Plaintiff still had not attended physical therapy because of issues with her insurance. (R. 2256-57). Overall, the treating physician stated that Plaintiff's pain was "stable and unchanged." (R. 2257) .
B. Opinion Testimony
1. State Agency Consultant Daniel Camden, M.D.
On August 12, 2019, state agency physician Daniel Camden, M.D., independently reviewed Plaintiff's medical records at the initial level, finding that her functioning has improved and that she can perform light work. (R. 112) . Dr. Camden found that Plaintiff's impairments did not meet or medically equal any of the listings considered, including Hemolytic Anemias, 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 7.05, Systemic Lupus Erythematosus, id. § 14.02, and Undifferentiated and Mixed Connective Tissue Disease, id. § 14.06. (R. 113). Dr. Camden found that one or more of Plaintiff's MDIs could reasonably be expected to produce Plaintiff's symptoms, but that the objective medical evidence did not substantiate Plaintiff's statements about the "intensity, persistence, and functionally limiting effects of the symptoms." (R. 114). To support this finding, Dr. Camden cited Plaintiff's activities of daily living, frequency and intensity of her symptoms, her medications, and other precipitating and aggravating factors. Id. Overall, Dr. Camden found Plaintiff's statements about her symptoms partially consistent, citing medical records that report she is doing well, reveal no inflammatory changes in her joints, and suggest she has full range of motion. (R. 11415) .
Dr. Camden found that Plaintiff has exertional limitations, concluding that she can occasionally lift or carry (including upward pulling) 20 pounds, frequently lift or carry (including upward pulling) ten pounds, and can stand, walk, and sit for six hours in an eight-hour workday. (R. 115). Plaintiff can also unlimitedly push or pull. Id. Dr. Camden also imposed postural limitations, finding that Plaintiff can climb ramps, stairs, and ladders occasionally, can balance unlimitedly, and can stoop, kneel, crouch, and crawl occasionally. (R. 115-16). Dr. Camden also found environmental limitations, concluding that Plaintiff should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, and hazards. (R. 116-17). Dr. Camden found that Plaintiff can have unlimited exposure to wetness, noise, and vibration. (R. 116). Dr. Camden did not impose any manipulative, visual, or communicative limitations. (R. 116).
2. State Agency Consultant Jack Hutcheson, M.D.
On December 20, 2019, state agency physician Jack Hutcheson, M.D., reviewed Plaintiff's medical records on reconsideration and concluded that her condition has improved and that she can perform light work. (R. 1265) . Dr. Hutcheson largely agreed with Dr. Camden. (R. 1259-65). Dr. Hutcheson disagreed with Dr. Camden with respect to Plaintiff's ability to stand or walk in an eighthour workday, limiting her to two hours per day. (R. 1259). Dr. Hutcheson also found that Plaintiff can balance only occasionally. (R. 1260). As for environmental limitations, Dr. Hutcheson differed in finding that Plaintiff should avoid concentrated exposure to wetness. (R. 1262). Considering her physical musculoskeletal examination results and the evidence of record, Dr. Hutcheson concluded that Plaintiff has medically improved. (R. 1265) .
3. Medical Evaluation Report by Orthopedic Pain Management Provider, Beth Winke, M.D.
On July 18, 2023, Plaintiff's pain management provider, Dr. Winke, completed a medical evaluation report. (R. 2350-52). Dr. Winke began treating Plaintiff in March 2023. (R. 2350). Dr. Winke indicated that Plaintiff's pain levels would affect concentration or memory and cause inability to focus for half of the workday. (R. 2350). Further, Dr. Winke opined that Plaintiff would require breaks totaling more than one hour in a single workday, and would require bedrest for fifteen days per month on average. Id.
Dr. Winke also opined on Plaintiff's limitations, concluding that she could sit for only two hours in a workday and stand or walk for only one hour. (R. 2351) . Dr. Winke indicated that Plaintiff could occasionally lift up to ten pounds, but could not grasp, push, pull, or manipulate with either her right or left hand. Id. Dr. Winke also opined that Plaintiff could not use her feet during the workday for repetitive movements such as pushing or pulling leg controls. Id. Dr. Winke explained that Plaintiff should never be around moving machinery, be near unprotected heights, exposed to extreme temperatures, humidity, or fumes, but that Plaintiff can drive automative equipment in moderation. (R. 2352) . Overall, Dr. Winke concluded that Plaintiff is unable to work full-time at any level of exertion. (R. 2351) .
4. Adult Function Reports
On June 18, 2019, Plaintiff completed an Adult Function Report. (R. 456-64). In describing her typical day, Plaintiff noted that it involves her "rubbing [her] joints on [her] legs and hand and fingers" because they get sore and tight during the day, taking her pills, and then by night, her "joints start to hurt." (R. 457) . She reported that she is no longer able to work fulltime, go for long walks, or lift more than sixty pounds because of her illness. (R. 458). Sometimes her lupus affects her sleep. Id. Plaintiff indicated that she has no problem with personal care, which includes dressing, bathing, shaving, and feeding herself, as well as using the bathroom. Id. She does not need reminders or help in taking care of personal needs and taking her medicine. (R. 459).
Plaintiff reported that her cooking habits have not changed since the onset of her illness, and that she prepares frozen foods and sandwiches on a monthly basis. Id. She does laundry and cleans the house; laundry takes between two and four hours while cleaning takes around two hours. Id. She goes outside a few times a month for appointments or to shop for necessities, and she drives or rides in a car to get places. (R. 460) . She shops in stores for groceries and healthcare supplies, taking hour-long trips twice a month. Id. She can pay bills, count change, manage a savings account, and use a checkbook. Id.
As for hobbies, she can read for up to two hours before she starts to feel pain from remaining still. (R. 461). Because of her illness, she can no longer go on long hikes or run. Id. She spends time with others, playing cards or taking walks around the yard as social activities every other day. Id. Otherwise, she does not leave the house often for other social events. Id.
Plaintiff reported that her illness affects her ability to lift, walk, squat, bend, kneel, and use her hands. (R. 462) . She can walk for about forty-five minutes before she has to stop and rest for thirty minutes. Id. She can also lift up to twenty-five pounds. Id. She can pay attention for "very long" periods of time, she can finish tasks she starts, and she can follow written and spoken instructions "very well." Id. She does not handle changes in routine well, and she can handle stress depending on the situation. (R. 463).
C. Testimony Before the ALJ
The ALJ questioned Plaintiff at the third administrative hearing on July 19, 2023. (R. 45-55) . The ALJ also heard testimony from the VE, Vanessa Ennis. (R. 61-67).
1. Plaintiff's Testimony
On direct questioning by the ALJ, Plaintiff testified that she is married and has no children. (R. 45) . She and her wife live with her mother-in-law. (R. 46). Plaintiff has a driver's license and drives once a week. Id. Plaintiff testified that she does not drive after taking her Tramadol because it makes her drowsy. (R. 47). Her spouse is disabled, but Plaintiff does not assist her with daily tasks or drive her to appointments. Id.
Plaintiff testified that she completed twelfth grade and last worked in 2016. (R. 47). She previously worked as a forklift operator at Nestle and seamer operator at Behr Paint and KW Container. Id. She worked at Nestle for fifteen years, and later as a seamer operator for five to six months. (R. 48) . She stopped work as a seamer operator because she began to get sick, beginning with her hands and feet swelling. (R. 48-49). Plaintiff was thereafter hospitalized for a week and received her systemic vasculitis diagnosis. (R. 49).
Plaintiff testified that she felt that she was unable to work because she would have to request a lot of time off because of her pain. (R. 51) . She explained that her pain manifested in her joints, primarily her elbows and knees. (R. 51-52). She takes medication for her illness, including a very low dose of chemotherapy, Plaquenil, and Lunesta. (R. 52) . Plaintiff testified that the Plaquenil and Lunesta cause her to use the restroom a lot. Id.
Plaintiff described a typical day, stating that she stretches her body in the morning and washes up. (R. 53). After that, she "massage[s] [her] knees until they stop hurting," takes her medicine, walks around the house, and then goes back to sleep after her Tramadol takes effect. Id. She wakes up after about four hours and then repeats the same routine. Id. She only eats when she gets hungry and prepares her meals in the microwave. (R. 54). Plaintiff testified that she has trouble sleeping because of her pain. Id. She does not need assistance bathing or dressing, and she does not complete very many household chores because her wife completes them all. Id. She also goes to the grocery store and walks with a cart but does not use a cane or assistive device. Id. Plaintiff reads as a hobby. (R. 54-55).
Plaintiff's attorney then asked follow-up questions. (R. 55) . Plaintiff testified that she lays down in bed for pain relief for five hours every day between 9:00am and 5:00pm. (R. 55-56). During this time, she sleeps on and off. (R. 56). Plaintiff experiences fatigue for about half the day, while she experiences pain for the entire day. Id. In Plaintiff's opinion, her pain from lupus and systemic vasculitis has worsened since 2019. Id. Plaintiff also reported that she has bowel movements three to four times a day, ten to fifteen minutes each time. (R. 58) . She testified that she typically has diarrhea. Id.
Plaintiff's attorney then asked her about missing work at her previous jobs. (R. 59-60). Plaintiff testified that she required time off because she had difficulty standing with swollen feet and she suffered from joint pain. (R. 60). Plaintiff explained that because of those symptoms, she missed three to four days of work per week, and her employer fired her as a result. Id.
2. Testimony from the VE
The VE characterized Plaintiff's prior work at Nestle as a forklift operator (DOT 921.683-050), which is a semi-skilled position with a medium exertion level and SVP 3. (R. 62) . The VE
classified Plaintiff's work at Subway as sandwich maker (DOT 317.660-010), which is an unskilled position with a medium exertion level and SVP 2, that Plaintiff actually performed at light exertion. Id. The VE classified Plaintiff's work as a seamer operator as a utility worker in the fabricated plastic industry (DOT 559.684-026), which is a semi-skilled position with a light exertion level and SVP 3. Id.
The ALJ's hypothetical for the VE posited a person who: [T]he individual is limited to light exertion. Can occasionally climb ramps and stairs, stoop and crouch, should never kneel, crawl, or climb ladders, ropes, or scaffolds. The individual can balance on even surfaces and stand and walk on level terrain. The individual can tolerate occasional exposure to extreme [heat], extreme cold, humidity, vibration, unprotected heights, dangerous unguarded machinery, and concentrated respiratory irritants such as fumes, odors, dust, gases, and poorly ventilated areas. (R. 62-63). The VE testified that the hypothetical individual could not work as a forklift operator or utility worker but could perform the sandwich maker position as actually performed. (R. 63) .
The VE testified that the hypothetical individual could also perform other work. Id. The VE identified three jobs available in the labor market at a light exertion level: (1) table assembler (DOT 920.687.026) with 40,000 jobs nationally, (2) table worker of metal products (DOT 783.687-030) with 50,000 jobs nationally, and (3) tabber of paper goods (DOT 794.687-058) with 90,000 jobs nationally. Id.
The ALJ then altered the hypothetical to limit the individual to sedentary work and asked the VE if the individual could perform any positions with that modification. (R. 64) . The VE again proposed three positions limited to sedentary exertion: (1) lens inserter (DOT 713.687-026) with 40,000 jobs nationally, (2) sorter (521.687-086) with 100,000 jobs nationally, and (3) table worker (DOT 739.687-182) with 100,000 jobs nationally. Id.
The ALJ further modified the hypothetical to exclude work that required sustaining a specific production rate, such as assembly line work or work with hourly quotas. (R. 65). The ALJ specified that the individual is capable of using judgment to make simple, work-related decisions, and dealing with occasional changes in routine. Id. The VE replied that this limitation would not exclude any of the light or sedentary jobs cited above. Id. The VE concluded by testifying that employers typically tolerate up to 15% off-task behavior and up to one day per month of absences before terminating an employee. Id.
Plaintiff's attorney then altered the hypothetical so that the individual would need an extra thirty-minute break in the morning and in the afternoon. (R. 66). The VE testified that the extra breaks would not be tolerated in a competitive work environment. Id. The ALJ then asked the attorney what medical evidence he based the limitation on; the attorney identified Plaintiff's testimony that she rested for five hours every day but could not point to objective evidence in Plaintiff's medical records. (R. 66-67).
III. STANDARD OF REVIEW
The Court's review is limited to determining whether the decision was supported by substantial evidence on the record and whether the proper legal standard was applied in evaluating the evidence. 42 U.S.C. § 405(g); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) . Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). It consists of "more than a mere scintilla" of evidence, but the evidence may be somewhat less than a preponderance. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
The court does not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hays, 907 F.2d at 1456. "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 [Commissioner's] designate, the ALJ)." Craig, 76 F.3d at 589. The Commissioner's findings as to any fact, if supported by substantial evidence, are conclusive and must be affirmed. Perales, 402 U.S. at 390; see also Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017) . Ultimately, reversing the denial of benefits is appropriate only if either the ALJ's determination is not supported by substantial evidence on the record, or the ALJ made an error of law. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
IV. ANALYSIS
Plaintiff argues that the ALJ erred at step two of the continuing disability framework, failing to determine whether Plaintiff's impairments medically equaled a listing or provide a rationale that would allow a subsequent reviewer to determine the basis for the finding. Pl.'s Br. (ECF No. 10, at 7-9). Further, Plaintiff argues that the ALJ failed to support her conclusion that she no longer exhibits certain constitutional symptoms required by Listing 14.02 or 14.03 and her conclusion that Plaintiff no longer meets the finding of marked limitation in any of the relevant categories. Id. at 11. Lastly, Plaintiff argues that the ALJ failed to properly evaluate Dr. Camden's and Dr. Hutcheson's opinions, namely because she did not consider the doctors' examining relationship or treatment relationship with Plaintiff, supportability, consistency, specialization, or other factors. Id. at 13.
Because the ALJ's finding that Plaintiff did not have at least two of the constitutional symptoms in Listings 14.02 or 14.03 is sufficient to find that Plaintiff does not meet either listing, the ALJ did not have to address Plaintiff's marked limitations. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 14.02, 14.03 (requiring at least two constitutional symptoms and one marked limitation); Sullivan v. Zebley, 493 U.S. 521, 530 (1990) ("For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify."). Thus, this court will not address Plaintiff's argument about marked limitations.
The Commissioner contends that the ALJ met the minimum articulation requirements in finding that Plaintiff did not medically equal the criteria at step two. Def.'s Br. (ECF No. 11, at 16) . Specifically, Defendant argues that the law does not require the ALJ to articulate specific evidence that supports this finding and permits the ALJ-as done here-to discuss the relevant evidence at subsequent steps in the decision. Id. at 16-17. Defendant also argues that the ALJ clearly explained how Plaintiff did not meet the criteria in both Listing 14.02 and 14.03, allowing a reviewing court to conduct meaningful judicial review. Id. at 21. Finally, Defendant argues that the ALJ implicitly or explicitly considered all the factors in 20 C.F.R. § 404.1527 in evaluating the opinions of the state agency medical consultants. Id. at 24.
For the reasons explained below, this Report finds no error in the ALJ's decision. This Report concludes that remand is not warranted, and therefore recommends that the court affirm the Commissioner's decision.
A. Framework for Continuing Disability Review
"There is no presumption that a claimant's disability continues . . . ." Landes v. Barnhart, No. 5:05-cv-33, 2005 WL 3542591, at *1 (W.D. Va. Dec. 21, 2005) (citing 20 C.F.R. §§ 404.1594(b)(6), (c) (1)-(3)). But, when the Social Security Administration terminates benefits, it must demonstrate that the individual no longer meets the requirements for disability. Sections 416(i) and 423 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, require that an individual be under a "disability" as defined in the Act to continue receiving disability insurance benefits.
Social Security Regulations define "disability" as the "inability to do 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." 20 C.F.R. § 404.1505(a); see also 42 U.S.C. §§ 423(d)(1)(A) and 416 (i) (1) (A) . To meet this definition, a claimant must have a "severe impairment" which makes it impossible to do previous work or any other substantial gainful work that exists in the national economy. 20 C.F.R. § 404.1505(a); see 42 U.S.C. § 423(d)(2)(A).
The Commissioner must follow an eight-step sequential analysis to determine when termination is proper. The eight questions which the ALJ must answer are:
1. Is the individual currently involved in substantial gainful activity? If so, the individual is no longer disabled. If not, the ALJ proceeds to step two.
2. Does the individual have an impairment or combination of impairments which meets or equals the severity of one listed at 20 C.F.R. § 404, Subpart P, App. 1? If so, the individual is still disabled. If not, the ALJ proceeds to step three.
3. Has there been a medical improvement, which includes "any decrease in medical severity of the impairment as established by improvement in symptoms, signs and/or laboratory findings?" Edge v. As true, 627 F.Supp.2d 609, 615 (E.D. N.C. 2008); see 20 C.F.R. § 404.1594(b)(1). If so, the ALJ proceeds to step four. If not, the ALJ proceeds to step five.
4. Is the medical improvement related to the individual's ability to do work? Medical improvement is related to an individual's ability to do work if (1) there has been a decrease in the severity of the impairment, and (2) it results in an increase in the claimant's capacity to perform basic work
activities. 20 C.F.R. § 404.1594(b)(3). If so, the ALJ proceeds to step six. If not, the ALJ proceeds to step five.
5. Does an exception apply to the medical improvement requirement? There are two groups of exceptions. If a group one exception applies, the ALJ proceeds to step six. If a group two exception applies, the individual is no longer disabled. If no exception applies, or no medical improvement occurs, the individual is still disabled.
6. Are all current impairments in combination "severe"? If so, the ALJ proceeds to step seven. If not, the individual is no longer disabled.
7. What is the claimant's residual functional capacity ("RFC"), and current ability to perform past relevant work? If the individual is able to perform past relevant work, then he or she is no longer disabled. If the individual is not able to perform past relevant work, the ALJ proceeds to step eight.
8. Does the individual currently have the ability to perform
other work in the national economy given his or her RFC, age, education, and past work experience? If so, the individual is no longer disabled. If not, the individual is still disabled and remains eligible to receive benefits. See 20 C.F.R. § 404.1594(f)(1)-(8); Hill v. Colvin, No. 1:14-CV-1261, 2015 WL 1208803, at *6 (E.D. Va. Mar. 16, 2015); Edge, 627 F.Supp.2d at 615.
Group one exceptions determine if disability ends even though there has not been medical improvement using a substantial evidence standard. For example, if the claimant benefits from advances in work-related medical or vocational therapy or technology, then disability may end 20 C.F.R. § 404.1594(d) (1)-(5) .
Group two exceptions cover situations such as fraudulently obtained prior decisions. 20 C.F.R. § 404.1594(e). The decision is made without a determination of medical improvement or claimant's ability to engage in substantial gainful activity. Id.
An impairment or combination of impairments is "severe" when it significantly limits the claimant's physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1521(a).
The burden of proving disability generally rests with the claimant, except "a limited burden of going forward with evidence shifts to the Social Security Administration" at step eight. Hill, 2015 WL 1208803, at *7; see Guiton v. Colvin, 546 Fed.Appx. 137, 141 (4th Cir. 2013). When conducting this eight-step analysis, the ALJ must consider: (1) the objective medical facts; (2) the diagnoses and expert medical opinions of the treating and examining physicians; (3) the subjective evidence of pain and disability; and (4) the claimant's educational background, work history, and present age. Hayes v. Gardner, 376 F.2d 517, 520 (4th Cir. 1967) (citing Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962)) . At all steps the ALJ bears the ultimate responsibility of weighing the evidence. Hays, 907 F.2d at 1456.
B. The ALJ Decision Currently Before the Court for Review.
Using the eight-part analysis prescribed by the regulations, 20 C.F.R. § 404.1594 (f) (1)-(8), the ALJ first determined that Plaintiff's comparison point decision ("CPD") occurred on July 3, 2016, and at the time of the CPD, she had the following medically determinable impairments: systemic vasculitis, iron deficiency anemia, and eczema. (R. 12) . The ALJ then found that Plaintiff has not engaged in substantial gainful activity through the date of the ALJ's decision. Id. Next, the ALJ found that the medical evidence establishes that since August 15, 2019, Plaintiff has had the following medically determinable impairments: systemic lupus erythematosus with Vitamin D deficiency, systemic vasculitis, iron deficiency anemia, obesity, cellulitis, a carotid aneurysm, and a colonic sigmoid stricture status post-surgical intervention. (R. 13) . None of these impairments or combinations of impairments met or equaled the severity of one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (R. 13-15) . In support of this finding, the ALJ explained that the only objectively documented symptom of Plaintiff's impairments in the record is fatigue, failing to satisfy at least two out of the four symptoms provided in the listings. (R. 14).
Next, the ALJ found work-related medical improvement as of August 15, 2019, because Plaintiff's vasculitis only repeatedly manifested fatigue since the cessation date. (R. 15-16). Although Plaintiff continues to have a severe impairment or combination or impairments, the ALJ found insufficient evidence of malaise, fever, or involuntary weight loss as required to satisfy or medically equal the listing that was met at the time of the CPD. (R. 16) .
Finally, the ALJ developed a finding regarding Plaintiff's RFC, and determined that Plaintiff could perform sedentary work with the following limitations:
the claimant can never climb ropes, ladders, or scaffolds, but she can occasionally climb ramps and stairs. The claimant can occasionally sto[o]p and crouch, but she can never knee[l] or crawl. The claimant can balance on uneven surfaces, and she can stand and walk on level terrain. The claimant can tolerate occasional exposure to extreme heat, extreme cold, humidity, vibration, unprotected heights, dangerous, unguarded machinery, and concentrated respiratory irritants such as fumes, odors, dust, gases, and poorly ventilated areas. The claimant is not capable of sustaining work requiring a specific production rate such as assembly line work or work requiring hourly quotas. The claimant is capable of using judgment to make simple, work-related decisions and dealing with occasional changes in a routine work setting on a regular and sustained basis to complete a normal workday or week.(R. 17) . The ALJ concluded that Plaintiff was unable to perform past relevant work. (R. 22) . But the ALJ did find that considering her age, education, work experience, and RFC, Plaintiff has been able to perform a significant number of jobs in the national economy. Id.
In crafting the RFC, the ALJ gave great weight to the state agency consultants' findings of medical improvement because the record strongly supported the finding of medical improvement. (R. 21) . The ALJ gave little weight to the consultants' findings that Plaintiff can perform light work considering her pain, fatigue, and obesity. Id. The ALJ also gave partial weight to the non-exertional limitations provided by Dr. Camden based on pain, obesity, left shoulder bursitis, and knee osteoarthritis that supported no climbing of ropes, ladders, or scaffolds, and prohibited crawling and kneeling. Id. The ALJ gave no weight to Dr. Winke's opinion, concluding it was extreme, unsupported by evidence, and contradicted clinical findings. (R. 21-22). The ALJ also noted that a nurse practitioner, not Dr. Winke, conducted Plaintiff's office visits for two out of the three visits in Plaintiff's treatment history. Id.
C. The ALJ properly supported with substantial evidence her evaluation of whether Plaintiff's impairments met Listings 14.02 or 14.03.
Plaintiff argues that the ALJ failed to support with substantial evidence the conclusion that her systemic vasculitis and lupus do not meet a listed impairment. Pl.'s Br. (ECF No. 10, at 10) . Specifically, Plaintiff alleges that the ALJ failed to address Plaintiff's reports of bodily discomfort and positive clinical findings of malaise and fever. Id. at 11. Defendant argues that substantial evidence supports the ALJ's finding, pointing to the ALJ's analysis, inconsistencies between Plaintiff's self-reports and objective evidence, and the lack of positive findings for malaise in the record. Def.'s Br. (ECF No. 11, at 20-24) .
Listings of Impairments are regulatory descriptions "of physical and mental impairments which, if met, are conclusive on the issue of disability." Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013) (quoting McNuni s v. Calif ano, 605 F.2d 743, 744 (4th Cir. 1979)). These listings are found in 20 C.F.R. Part 404, Subpart P, Appendix 1, which defines impairments "in terms of several specific medical signs, symptoms, or laboratory test results" that are severe enough to prevent a claimant from being unable to engage in any gainful activity. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see also id. at 532 ("[P]urpose of listings is to describe impairments 'severe enough to prevent a person from doing any gainful activity[.]'" (quoting 20 C.F.R. § 416.925(a)); SSR 83-19, 1983 WL 31248, at *1 (Jan. 1, 1983) (listings define "medical conditions which ordinarily prevent an individual from engaging in any gainful activity")). Listings are therefore more stringent than proving disability under steps four and five, or, as in this case, steps seven and eight. Zebley, 493 U.S. at 532 ("[T]he medical criteria defining the listed impairments [are] at a higher level of severity than the statutory standard.").
A claimant is entitled to this conclusive presumption of impairment "if he can show that his condition meets or equals the listed impairments." Radford, 734 F.3d at 291 (quoting Bowen v. City of New York, 476 U.S. 467, 471 (1986)) (cleaned up); see also Bowen v. Yuckert, 482 U.S. 137, 141 (1987) ("If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled."). To meet the requirements of a listing, a claimant "must have a medically determinable impairment(s) that satisfies all of the criteria in the listing." 20 C.F.R. § 404.1525(d). "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Zebley, 493 U.S. at 530 (citing SSR 83-19, 1983 WL 31248 (Jan. 1, 1983)) .
In analyzing whether a listing is met, the ALJ is generally required to set forth the reasons for his decision. Diaz v. Comm'r of Social Sec., 577 F.3d 500, 504 (3d Cir. 2009) (citing Burnett v. Comm'r of SSA, 220 F.3d 112, 119 (3d Cir. 2000)). This includes identifying the applicable listing and comparing the claimant's symptoms to the criteria of the listing. Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986); see also Russell v. Chater, 60 F.3d 824, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished table opinion) (noting that the ALJ is not held to "an inflexible rule requiring an exhaustive point-by-point discussion in all cases").
Plaintiff claims that she meets Listing 14.02 and Listing 14.03. Pl.'s Br. (ECF No. 10, at 1, 10-13). Listings 14.02 and 14.03 are practically identical, and both require an involvement of two or more organs or body systems with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).
Or
B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.20 C.F.R. Pt. 404, Subpt. P, App. 1, 14.02; see also id. at 14.03.
The only difference between Listing 14.02 and Listing 14.03 is that Listing 14.03 reads "Repeated manifestations of systemic vasculitis," rather than "Repeated manifestations of SLE." Compare 20 C.F.R. Pt. 404, Subpt. P, App. 1, 14.02, with id. at 14.03.
Plaintiff asserts that the ALJ provided the same cursory explanation as to why Plaintiff's impairments did not meet both Listing 14.02 and Listing 14.03, failing to satisfy the articulation requirement set forth in Brown v. Colvin and Radford V. Colvin. Pl.'s Br. (ECF No. 10, at 10) (citing 639 Fed.Appx. 921, 922 (4th Cir. 2016), and then citing 734 F.3d 288 (4th Cir. 2013)). The ALJ's determination that Plaintiff's impairments did not meet or equal a listing is supported by substantial evidence. (R. 13-14) .
In both Brown and Radford, the ALJ merely declared that the plaintiff's impairments did not meet the criteria of any listing without providing any explanation in support of his finding. See 639 Fed.Appx. at 923 (finding error where ALJ stated evidence of record did not establish objective findings that would meet any impairment in the listings); 734 F.3d at 295 (determining that ALJ's decision regarding listings "is devoid of reasoning."). Neither ALJ compared the record evidence to the relevant criteria, nor did they provide any reasoning beyond noting that the state agency opinions found the same result. Id.
Here, the ALJ determined that Plaintiff's impairments, either individually or in combination, did not meet or medially equal a listed impairment, writing:
In this case, the record documents chronic SLE with vitamin D deficiency, along with vasculitis and anemia, which constitute cardiovascular and hematologic body systems involvement per 20 CFR Part 404, Subpart P, Appendix 1, 14.00(D)(1)(a); however, the only objectively documented, repeated manifestation of SLE since the cessation date is fatigue. The records do not document repeated fever, malaise, or involuntary weight loss and accordingly, subsections A and B are not satisfied. (Exhibit 10F, p.p. 3, 10; Exhibit 11F, p.p. 3, 6, 8, 13; Exhibit 18F, p.p. 9, 10; Exhibit 25F, p.p. 3, 7, 8) .(R. 14). The ALJ also explained her reasoning for Listing 14.03:
In this case, the record documents vasculitis in the setting of SLE and iron deficient anemia; however, as noted above, the only objectively documented, repeated manifestation of vasculitis since the cessation date is fatigue, with no evidence of repeated fever, malaise, or involuntary weight loss, which leaves subsections A and
B unsatisfied. (Exhibit 10F, p.p. 3, 10; Exhibit 11F, p.p. 3, 6, 8, 13; Exhibit 18F, p.p. 3, 10; Exhibit 25F, p.p. 3, 7, 8).(R. 14) . The ALJ clearly identified the symptom she found supported by record evidence and which symptoms she found unsupported, backed by citations to the record. Id. The ALJ was not required to further elaborate when she "provide[d] a coherent basis for his step-three determination." Keene v. Berryhill, 732 Fed.Appx. 174, 177 (4th Cir. 2018); see also id. (holding that the ALJ is not required to "provide an exhaustive point-by-point breakdown of each and every listed impairment.").
Plaintiff insists that ample evidence is present in the record to support the finding that her malaise met the requirement of a second constitutional symptom under Listings 14.02 and 14.03. Pl.'s Br. (ECF No. 10, at 11). But nearly all of Plaintiff's citations to the record involve Plaintiff's self-reports of matters already considered by the ALJ. Id. (citing, for example, Plaintiff's self-reported "review of systems" indicating malaise and her hearing testimony that she slept on and off throughout the day); see (R. 19) (noting intermittent pain, physical exams showing that claimant was fully active, and Plaintiff's own reports of her abilities, such as lifting up to twenty-five pounds).
The ALJ reaffirmed her finding at step two later in the opinion when discussing Plaintiff's RFC. See Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011) (endorsing "[r]eading the ALJ's decision as a whole," rather than looking at one portion of the decision in isolation); McCartney v. Apfel, 28 Fed.Appx. 277, 279 (4th Cir. 2002) ("the ALJ need only review medical evidence once in [the] decision."). The ALJ noted that a physical exam revealed that Plaintiff was fully active and able to carry on pre-disease performance. (R. 1270, 2122); (R. 19). The ALJ also acknowledged that Plaintiff often complained of joint pain and swelling despite reporting that she could lift up to twenty-five pounds, perform personal care activities, and complete chores. (R. 19-21). While malaise may be unlikely to be observed in a clinical setting, Pl.'s Reply (ECF No. 12, at 3), Plaintiff herself regularly denied experiencing malaise, (R. 1244, 1270, 1301, 2113, 2122, 2128, 2203), which the ALJ acknowledged in explaining Plaintiff's frequent lack of positive findings on physical exams. In total, the record contains only two instances of Plaintiff's selfreported positive finding of malaise. (R. 2105, 2146) (July 26, 2022, Virginia Oncology Associates visit); (R. 2319) (December 10, 2021, emergency room visit).
Remand is not warranted simply because the record contains some evidence which could support a conclusion opposite from the one reached by the ALJ. The court must defer to the ALJ's findings if those findings are supported by substantial evidence. Perales, 402 U.S. at 390; see also Lewis, 858 F.3d at 865. This appeal is not an opportunity to relitigate the case. If "conflicting evidence allows reasonable minds to differ as to whether [Plaintiff] is disabled," then the court defers to the ALJ. Craig, 76 F.3d at 589 (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). Because the ALJ's opinion here is supported by substantial evidence, the court does not consider whether the evidence might also support an alternative finding.
D. The ALJ properly evaluated whether Plaintiff's systemic vasculitis and systemic lupus erythematosus medically equaled Listings 14.02 or 14.03.
Plaintiff claims that the ALJ concluded that Plaintiff no longer met a listing without properly considering whether Plaintiff's impairments medically equaled a listing in step twoof the ALJ's analysis. Pl.'s Br. (ECF No. 10, at 1, 7-10); see 20 C.F.R. § 404.1594(f)(2) (requiring the Commissioner to consider medical equivalency at step two of continuing disability analysis). Although Plaintiff recognizes the "very minimal" articulation requirement, she argues that the absence of an express equivalence finding demonstrates that the ALJ did not duly consider the step two requirement. Pl.'s Br. (ECF No. 10, at 8) . Defendant relies on the "very minimal" articulation requirement, arguing that the ALJ is not required to articulate specific evidence in support of her medical equivalence finding. Def.'s Br. (ECF No. 11, at 16) . Defendant further argues that no medical provider made a finding of malaise in the record, leaving only Plaintiff's few self-reports of bodily discomfort for the ALJ to consider. Id. at 18-20.
Because this is a continuing disability case, the regulations require the medical equivalence evaluation to occur at step two, 20 C.F.R. § 404.1594(f) (2), rather than step three, 20 C.F.R. § 404.1520(a) (4) . The same rules regarding medical equivalency apply to each section.
In determining equivalency, the Commissioner can find that an impairment is "medically equivalent to a listed impairment . . . if it is at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 404.1526(a). This provision allows the ALJ to find that a specific listing is met by either analogizing symptoms or allowing alternative symptoms to complete a gap in severity. See § 404.1526(b) (outlining three ways medical equivalence can be satisfied). Plaintiff argues that the ALJ did not offer "a conclusion that Plaintiff did not medically equal Listing 14.03" or "a rationale that is sufficient for a subsequent reviewer to determine the basis for the finding about medical equivalence." Pl.'s Br. (ECF No. 10, at 9). The ALJ satisfied the minimal articulation requirements required in failing to find medical equivalency.
The ALJ must consider all evidence of record in finding that a plaintiff's impairments do not medically equal a listing; however, the ALJ "is not required to articulate specific evidence supporting his or her finding that the [claimant's] impairment(s) does not medically equal a listed impairment." SSR 17-2p, 2017 WL 3928306, at *4 (Mar. 27, 2017) .3928306, at *4 (Mar. 27, 2017) . SSR 17-2p states that to find medical equivalence, the record must contain:
1. A prior administrative medical finding from a [medical consultant] or [psychological consultant] from the initial or reconsideration adjudication levels supporting the medical evidence finding, or
2. [Medical expert] evidence, which may include testimony or written responses to interrogatories, obtained at the hearings level supporting the medical equivalence finding, or
3. A report from the [Appeals Council]'s medical support staff supporting the medical equivalence finding.Id. at *3. In finding that a plaintiff's impairments do not medically equal a listing, however, "a statement that the individual's impairment(s) does not medically equal a listed impairment constitutes sufficient articulation for this finding." Id. at *4. And, an ALJ's "articulation of the reason(s) why the individual is or is not disabled at a later step in the sequential evaluation process will provide rationale that is sufficient for a subsequent reviewer or court to determine the basis for the finding about medical equivalence . . . ." Id.
Plaintiff's argument that the ALJ did not provide a sufficient rationale or conclusion fails because the ALJ explicitly stated in her decision: "[s]ince August 15, 2019, the claimant's impairments, considered singly and in combination, have not met or medically equaled a listing." (R. 13) (emphasis added). Not only does this statement on its own satisfy the "very minimal" articulation requirements of SSR 17-2p, but this statement is entitled to some deference. Cf. Reid v. Comm'r Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (stating that the reviewing court should take an ALJ's "word" that he considered the entire record, "absent evidence to the contrary") (citing Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) ("[T]ak[ing] a lower tribunal at its word when it declares that it has considered a matter.")).
Plaintiff also argues that the ALJ failed to later discuss evidence that supported the ALJ's medical equivalence finding. Pl.'s Br. (ECF No. 10, at 8). Relying on Owens v. Saul, Plaintiff argues that when it is clear from an ALJ's opinion that the ALJ "did not duly consider the actual requirement of Step Three and the specific listing," a lack of evidence provided in later steps can support a finding of error. Id. (citing 1:18-cv-3013, 2019 WL 7900070, at *13 (D.S.C. Oct. 10, 2019), report and recommendation adopted, 2020 WL 635798 (D.S.C. Feb 11, 2020)). Plaintiff also argues under Owens that the ALJ misunderstood the requirements of Listing 14.03 because the state agency medical consultants failed to properly advise her through their opinions. Pl.'s Br. (ECF No. 10, at 9). Specifically, Plaintiff takes issue with the fact that Dr. Camden's opinion excluded Listing 14.03 from the list of impairments; that Dr. Hutcheson "only mentioned laboratory findings as preventing a finding of Plaintiff meeting or equaling a listing" when the relevant listing does not require laboratory findings; and that Dr. Camden's opinion stated Plaintiff had malaise and fatigue. Id.
The court rejects Plaintiff's argument that Dr. Hutcheson only relied on laboratory findings in his analysis of Listing 14.02 and 14.03. Although Dr. Hutcheson does state that "[1]aboratory findings are not listing level," he also discusses several physical examinations in relation to Plaintiff's current symptoms, ultimately finding that "[biased on the available evidence, the claimant's functioning has improved." (R. 1265).
The court also rejects Plaintiff's argument that Dr. Camden's report explicitly states she has malaise and fatigue. Although the report lists malaise and weakness as symptoms, the report then explicitly finds that Plaintiff's statements about the intensity, persistence, and functionally limiting effects of these symptoms are not substantiated by medical evidence. (R. 114) . Further, both Dr. Camden and the ALJ found that Plaintiff had fatigue, which does not suggest a "fundamental misunderstanding" of the appropriate evaluation of Listing 14.03. Owens, 2019 WL 7900070, at *13.
In Owens, however, the court found that the ALJ erred because the explanation provided in support of the finding of no medical equivalency "reflect[ed] a fundamental misunderstanding of the appropriate evaluation under Listing 11.02 in cases involving migraines." Owens, 2019 WL 7900070, at *13. The ALJ in Owens explained that an ALJ "can only find the claimant equals a listing based on a medical expert offering an opinion that a claimant equals a listing," and that "listing 11.02 applies to Epilepsy; however, the record does not support any diagnosis of epilepsy." Id. The court explained that the ALJ erred by only considering whether that plaintiff had a diagnosis of epilepsy or evidence of seizures, rather than considering whether his symptoms and limitations equaled the severity of listing 11.02. Id.
Here, the ALJ did not commit such an error. As provided in SSR 17-2p, the ALJ provided a subsequent discussion of evidence that supported the medical equivalence finding and that allows for meaningful judicial review. The ALJ found only one "objectively documented" constitutional symptom or sign of Plaintiff's impairments: fatigue. (R. 14) . Through this explanation, the ALJ acknowledged that based on the evidence of record, no other sign of impairment or symptom is present to medically equal either listing. Id. Further, nothing in the ALJ's opinion suggests that the ALJ gave weight to the omission of Listing 14.03 in Dr. Camden's opinion. (R. 14, 19-21). Thus, the ALJ's opinion does not reflect a fundamental misunderstanding of the appropriate evaluation under Listing 14.02 or 14.03.
Plaintiff appears to argue that her subjective reports of "bodily discomfort" support a finding that such discomfort would medically equal constitutional symptoms required by either listing at issue. Pl.'s Br. (ECF No. 10, at 11); see also id. at 10 ("[T]he record actively suggests that Plaintiff at least medically equaled either Listing 14.03 or Listing 14.02," as seen in the argument about meeting the listings). As Plaintiff identifies, the definition of malaise includes "frequent feelings of illness, bodily discomfort, or lack of well-being that result in significantly reduced physical activity or mental function." Id. at 11 (quoting Program Operations Manual System (POMS): DI 34134.015, 14.00(C)(2)). As discussed above, the ALJ properly-found that Plaintiff did not meet Listings 14.02 or 14.03 because substantial evidence did not support a finding of malaise; therefore, Plaintiff's "bodily discomfort," alone, cannot medically equal listings 14.02 or 14.03.
The record does not reveal-and Plaintiff does not identify- any other constitutional symptoms or "findings related to [Plaintiff's] impairment that are at least of equal medical significance to the required criteria." 20 C.F.R. § 404.1526(b) (1) (ii); see § 404.1526(b)(3). Without any other symptoms or signs of Plaintiff's impairments present in the record, the ALJ could not find medical equivalence. Thus, the ALJ's reasoning that fatigue was the only objectively documented symptom of Plaintiff's systemic vasculitis or lupus properly supports her finding of no medical equivalence.
E. The ALJ properly considered all factors in evaluating the opinions of the state agency medical consultants. Dr. Camden and Dr. Hutcheson.
Plaintiff argues that the ALJ failed to consider the factors under 20 C.F.R. § 404.1527(c) (1)-(6) . Pl.'s Br. (ECF No. 10, at 13). Specifically, Plaintiff claims that the ALJ did not mention non-examining status, specialization, or specific evidence showing consistency, failing to demonstrate that the ALJ meaningfully considered each factor under the regulations. Id. at 13-14.
The Commissioner argues that the ALJ implicitly or explicitly considered all the relevant factors in § 404.1527(c), pointing to the ALJ's analysis of the medical evidence and the consultative opinions. Def.'s Br. (ECF No. 11, at 24) . The Commissioner relies on Shelley C. v. Commissioner of Social Security Administration to argue that "as long as the Court can 'infer' that the ALJ was aware of a certain factor, the ALJ's analysis satisfies the articulation requirements" of the regulations. Id. (citing 61 F.4th 341, 35455 (4th Cir. 2023)).
The ALJ alone has the responsibility of determining RFC. 20 C.F.R. § 404.1546(c). In doing so, the ALJ must consider the objective medical evidence in the record, including the medical opinions of the treating physicians and the non-examining medical consultants. Id. at § 404.1545(a). For claims filed before March 27, 2017, the ALJ must explain the weight assigned to all opinions, including treating sources, non-treating sources, state agency consultants, and other non-examining sources. 20 C.F.R. §§ 404.1527, 416.927.
Plaintiff filed her original claim for disability on April 27, 2016. (R. 147). The ALJ assigned to Plaintiff's first continuing disability decision improperly analyzed Plaintiff's claim under 20 C.F.R. § 404.1520c. Id. The Appeals Council found that the ALJ erred in using the new rules because "[i] f the initial claim was filed before March 27, 2017, and there has not been a prior continuing disability review, the prior rules should be used." Id. Thus, Plaintiff's claims are governed by 20 C.F.R. § 404.1527.
In assigning weight to any medical opinion, the ALJ must consider the following factors: (1) the "[l]ength of the treatment relationship and the frequency of examination"; (2) the "[n]ature and extent of the treatment relationship"; (3) degree of "supporting explanations for their opinions;" (4) consistency with the record; and (5) the specialization of the physician. Id. at § 404.1527. The first two factors "are specific to treating sources," while "the other three factors are used to determine the weight to be given to any medical opinion, whether from a treating or nontreating source." Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 256 (4th Cir. 2017).
The regulations do not require an ALJ to "set forth a detailed factor-by-factor analysis" in the opinion. Dowling v. Comm'r Soc. Sec. Admin,, 986 F.3d 377, 385 (4th Cir. 2021); see also Pace v. Kijakazi, No. 20-2337, 2022 WL 3334628, at *1 (4th Cir. Aug. 12, 2022) ("The ALJ is not required to discuss each factor in his decision."). However, the ALJ's decision must make clear that she "meaningfully considered each of the factors before deciding how much weight to give the opinion," Dowling, 986 F.3d at 385, and she "must include a narrative discussion describing how the evidence supports [her] explanation of the varying degrees of weight he gave to differing opinions concerning the claimant's conditions and limitations," Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018).
Consultative examiners like Dr. Camden and Dr. Hutcheson do not constitute treating sources under the regulations. See Linda M. v. Comm'r Soc. Sec., No. 2:21-cv-126, 2022 WL 1830700, at *13 (E.D. Va. May 4, 2022) (citing 20 C.F.R. §§ 404.1527(c)(2), 412.927(c)(2)). The ALJ acknowledged that Dr. Camden and Dr. Hutcheson served as state agency consultants, which, by definition, review "the evidence and make administrative medical findings about medical issues, including whether an individual's impairment(s) meets or medically equals a listing." SSR 17-2p, 2017 WL 3928306, at *3. Thus, the ALJ adequately acknowledged the treating relationship.
After providing an in-depth review of Plaintiff's medical records and subjective reports of symptoms, the ALJ provided great weight to the state agency opinions' findings of medical improvement "because the current evidence establishes that the systemic vasculitis no longer meets the criteria of Listing 14.03." (R. 21) . Further, the non-examining State agency physicians decidedly found Plaintiff less limited than the ALJ. (R. 21) . The ALJ gave little weight to the findings that Plaintiff can perform light work, and instead considered Plaintiff's pain, fatigue, and obesity in the record and concluded that Plaintiff had the RFC to perform sedentary work-the lowest exertion level of work under the regulations. Id. From this analysis, it is clear the ALJ acknowledged factors three and four, the degree of supporting explanations for their opinions and consistency with the record.
V. RECOMMENDATION
Because the ALJ properly evaluated whether Plaintiff met or equaled Listing 14.02 or 14.03, and because the ALJ complied with the relevant regulations in considering the state agency medical consultants' opinions, the undersigned recommends that the Court GRANT the relief requested in the Commissioner's Brief, (ECF No. 11), DENY the relief requested in Plaintiff's Brief in Support of a Social Security Appeal, (ECF No. 10), and AFFIRM the decision of the Commissioner.
VI. REVIEW PROCEDURE
By copy of this report and recommendation, the parties are notified that pursuant to 28 U.S.C. § 636(b)(1)(C):
1. Any party may serve upon the other party and file with the Clerk written objections to the foregoing findings and recommendations within fourteen (14) days from the date this report is forwarded to the objecting party by Notice of Electronic Filing or mail, see 28 U.S.C. § 636(b)(1), computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. Rule 6(d) of the Federal Rules of Civil Procedure permits an extra three (3) days, if service occurs by mail. A party may respond to any other party's objections within fourteen (14) days after being served with a copy thereof. See Fed.R.Civ.P. 72(b) (2) (also computed pursuant to Rule 6(a) and (d) of the Federal Rules of Civil Procedure).
2. A district judge shall make a de novo determination of those portions of this report or specified findings or recommendations to which objection is made.
The parties are further notified that failure to file timely objections to the findings and recommendations set forth above will result in a waiver of appeal from a judgment of this court based on such findings and recommendations. Thomas v. Arn, 474 U.S. 140 (1985); Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). Douglas E. Miller, United States Magistrate Judge