United States District Court, E.D. Virginia, Richmond Division
REPORT AND RECOMMENDATION
J. NOVAK UNITED STATES MAGISTRATE JUDGE.
29, 2014, Ashley Nicole Davis ("Plaintiff) applied for
Social Security Disability Benefits ("DIB") and
Supplemental Security Income ("SSI") under the
Social Security Act ("Act"), alleging disability
from narcolepsy with cataplexy, neurocardiogenic syncope,
anxiety, panic disorder and bipolar effective disorder, with
an alleged onset date of June 28, 2014. The Social Security
Administration ("SSA") denied Plaintiffs claims
both initially and upon reconsideration. Thereafter, an
Administrative Law Judge ("ALJ") denied Plaintiffs
claims in a written decision and the Appeals Council denied
Plaintiffs request for review, rendering the ALJ's
decision as the final decision of the Commissioner.
now seeks judicial review of the ALJ's decision pursuant
to 42 U.S.C. § 405(g), arguing that the ALJ erred in:
(1) failing to consider whether Plaintiffs impairments met or
medically equaled the criteria of Listing 11.03; (2)
assigning "little weight" to the opinion of
Plaintiffs treating physician, Rakesh Sood, M.D.; and, (3)
failing to account for Plaintiffs moderate limitations in
concentration, persistence and pace in Plaintiffs Residual
Functional Capacity ("RFC") assessment. (Mem. in
Support of Pl.'s Mot. For Summ. J. ("Pl.'s
Mem.") (ECF No. 13) at 5, 8, 10.) This matter now comes
before the Court for a Report and Recommendation pursuant to
28 U.S.C. § 636(b)(1)(B) on the parties'
cross-motions for summary judgment, rendering the matter ripe
for review. For the reasons that follow, the Court
recommends that Plaintiffs Motion for Summary Judgment or, in
the Alternative, Motion for Remand (ECF No. 12) be DENIED,
that Defendant's Motion for Summary Judgment (ECF No. 15)
be GRANTED and that the final decision of the Commissioner be
29, 2014, Plaintiff filed applications for DIB and SSI with
an alleged onset date of June 28, 2014. (R. at 83, 93.) The
SSA denied these claims initially on September 24, 2014, and
again upon reconsideration on December 23, 2014. (R. at 86,
91, 112, 123.) At Plaintiffs written request, the ALJ held a
hearing on September 28, 2016. (R. at 37.) Following the
submission of additional medical interrogatories on December
29, 2016, the ALJ held a supplemental hearing on May 12,
2017. (R. at 63-81.) During the supplemental hearing,
Plaintiffs counsel alerted the ALJ that Plaintiff recently
attended an appointment with her treating physician; however,
the ALJ never received the medical record for this
appointment. (R. at 15-16, 64-67.) On June 27, 2017, the ALJ
issued a written opinion, denying Plaintiffs claims and
concluding that Plaintiff did not qualify as disabled under
the Act, because "considering [Plaintiffs] age,
education, work experience, and residual functional capacity,
[Plaintiff could make] a successful adjustment to other work
that exists in significant numbers in the national
economy." (R. at 29.) On May 24, 2018, the Appeals
Council denied Plaintiffs request for review, rendering the
ALJ's decision as the final decision of the Commissioner
subject to review by this Court. (R. at 1-5.)
STANDARD OF REVIEW
reviewing the Commissioner's decision to deny benefits, a
court "will affirm the Social Security
Administration's disability determination 'when an
ALJ has applied correct legal standards and the ALJ's
factual findings are supported by substantial
evidence.'" Mascio v. Colvin, 780 F.3d 632,
634 (4th Cir. 2015) (quoting Bird v. Comm'r of Soc.
Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)).
Substantial evidence requires more than a scintilla but less
than a preponderance, and includes the kind of relevant
evidence that a reasonable mind could accept as adequate to
support a conclusion. Hancock v. Astrue, 667 F.3d
470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996). Indeed, "the substantial
evidence standard 'presupposes ... a zone of choice
within which the decision makers can go either way, without
interference by the courts. An administrative decision is not
subject to reversal merely because substantial evidence would
have supported an opposite decision.'" Dunn v.
Colvin, 607 Fed.Appx. 264, 274 (4th Cir. 2015) (quoting
Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir.
determine whether substantial evidence exists, the court must
examine the record as a whole, but may not "undertake to
re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the
[ALJ]." Hancock, 667 F.3d at 472 (quoting
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)); see also Biestek v. Berryhill, 139 S.Ct.
1148, 1157 (2019) (holding that the substantial-evidence
inquiry requires case-by-case consideration, with deference
to the presiding ALJ's credibility determinations). In
considering the decision of the Commissioner based on the
record as a whole, the court must "take into account
whatever in the record fairly detracts from its weight."
Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir.
1974) (quoting Universal Camera Corp. v. N.L.R.B.,
340 U.S. 474, 488 (1951)). The Commissioner's findings as
to any fact, if substantial evidence in the record supports
the findings, bind the reviewing court to affirm regardless
of whether the court disagrees with such findings.
Hancock, 667 F.3d at 477. If substantial evidence in
the record does not support the ALJ's determination or if
the ALJ has made an error of law, the court must reverse the
decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th
Social Security Administration regulations set forth a
five-step process that the agency employs to determine
whether disability exists. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see Mascio, 780 F.3d
at 634-35 (describing the ALJ's five-step sequential
evaluation). To summarize, at step one, the ALJ looks at the
claimant's current work activity. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the ALJ
asks whether the claimant's medical impairments meet the
regulations' severity and duration requirements.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Step
three requires the ALJ to determine whether the medical
impairments meet or equal an impairment listed in the
regulations. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). Between steps three and four, the ALJ
must assess the claimant's residual functional capacity,
accounting for the most that the claimant can do despite her
physical and mental limitations. §§ 404.1545(a),
416.945(a). At step four, the ALJ assesses whether the
claimant can perform her past work given her RFC.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally,
at step five, the ALJ determines whether the claimant can
perform any work existing in the national economy.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
THE ALJ'S DECISION
September 28, 2016, the ALJ held a remote hearing during
which Plaintiff (represented by counsel) and a vocational
expert ("VE") testified. (R. at 37.) Following the
submission of additional medical interrogatories from medical
expert ("ME") Gerald Orth, M.D., on December 29,
2016, the ALJ held a supplemental hearing on May 12, 2017.
(R. at 63-82.) On June 27, 2017, the ALJ issued a written
opinion, finding that Plaintiff did not qualify as disabled
under the Act. (R. at 15-29.)
followed the five-step evaluation process established by the
Social Security Act in analyzing Plaintiffs disability claim.
(R. at 16-29.) At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since her alleged
onset date. (R. at 18.) At step two, the ALJ determined that
Plaintiff had the following severe impairments:
neurocardiogenic syncope,  narcolepsy with cataplexy,
anxiety, panic disorder and bipolar affective disorder. (R.
at 18.) At step three, the ALJ found that Plaintiff did not
have any impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. (R. at 19-20.).
assessing Plaintiffs RFC, the ALJ found that Plaintiff had
the residual capacity to perform a full range of work at all
exertional levels, but with some additional limitations. (R.
at 21.) Specifically, Plaintiff could only occasionally
balance, stoop, kneel, crouch, crawl and climb ramps and
stairs. (R. at 21.) Plaintiff could never climb ladders,
ropes or scaffolds. (R. at 21.) Plaintiff could handle only
occasional exposure to vibrations and no exposure to
hazardous conditions, including unprotected heights and
moving machinery. (R. at 21.) The ALJ limited Plaintiff to
simple, routine tasks with occasional interaction with the
general public. (R. at 21.) At step four, the ALJ found that
Plaintiff could not perform any past relevant work. (R. at
27.) At step five, the ALJ determined that Plaintiff could
perform jobs existing in significant numbers in the national
economy, including work as a cleaner, food prep worker and
mail clerk at a private company. (R. at 28-29.) Therefore,
the ALJ concluded that Plaintiff did not qualify as disabled
under the Act. (R. at 29.)
age twenty-eight at the time of this Report and
Recommendation, previously worked as a certified nursing
assistant. (R. at 28, 43, 305-312.) She applied for Social
Security benefits, alleging disability from neurocardiogenic
syncope, narcolepsy with cataplexy, anxiety, panic disorder
and bipolar affective disorder, with an alleged onset date of
June 28, 2014. (R. at 48-52, 83-91, 280-286, 312, 444-451,
505-506.) Plaintiffs appeal to this Court alleges that the
ALJ erred in: (1) failing to consider whether Plaintiffs
impairments met or medically equaled the criteria of Listing
11.03; (2) assigning "little weight" to the opinion
of Plaintiff s treating physician, Dr. Sood; and, (3) failing
to account for Plaintiffs moderate limitations in
concentration, persistence and pace in Plaintiffs RFC
assessment. (Pl.'s Mem. at 5, 8, 10.) For the reasons set
forth below, the ALJ did not err in her decision.
ALJ Did Not Err in Failing to Consider Listing 11.03 at Step
argues that the ALJ should have considered Dr. Sood's
opinion that her impairments medically equaled the criteria
of Listing 11.03. (Pl.'s Mem. at 11.) Defendant responds
that as of the date of Dr. Sood's opinion and the
ALJ's decision, Listing 11.03 had lapsed, rendering Dr.
Sood's opinion outdated. (Def.'s Mot. for Summ. J.
& Br. in Supp. Thereof ("Def.'s Mem.") (ECF
No. 15) at 13-15.) Defendant further argues that even with
regard to the relevant listing in effect, Listing 11.02,
Plaintiff failed to meet her burden of proof to demonstrate
that her impairments met or medically equaled the criteria of
that Listing. (Def.'s Mem. at 21-22.)
bears the burden of proving that she meets or equals a
listing. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). The listings "were designed to operate as a
presumption of disability that makes further inquiry
unnecessary" and, consequently, require an exacting
standard of proof. Sullivan v. Zebley, 493 U.S. 521,
532-33 (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." Id. at 530. The regulations reserve
to the Commissioner the ultimate decision of whether a
claimant qualifies as disabled under the Act. 20 C.F.R.
§§ 404.1527(d)(1), 416.927(d)(1).
as Defendant correctly points out, Listing 11.03 had lapsed
both at the time of Dr. Sood's opinion (March 16, 2017)
and at the time of the ALJ's decision (June 27, 2017).
Indeed, as of September 29, 2016, Listing 11.02, which
contains different criteria, replaced Listing 11.03. Revised
Medical Criteria for Evaluating Neurological Disorders, 81
Fed. Reg. 43048, (July 1, 2016); (Def.'s Mem. at 19-20.)
The listing change applied "to new applications filed on
or after the effective date of the final rule and to claims
that are pending on or after the effective date."
Id. Thus, Dr. Sood's opinion regarding the
equivalency of Plaintiff s impairments to Listing 11.03
proved irrelevant, because he relied on outdated and
therefore invalid listing criteria.
the relevant listing in effect, Listing 11.02, the ALJ found
that Plaintiff "show[ed] no evidence of an impairment
[or combination of impairments] which me[t] or medically
equal[ed] the criteria of a listed impairment [under listings
4.00 and 11.00]." (R. at 19.) In support of this
conclusion, the ALJ cited to exhibits 6F and 10F, which
included treatment records relevant to Plaintiffs narcolepsy
and neurocardiogenic syncope. (R. at 19.) The ALJ also relied
on the answers to medical interrogatories submitted by the
ME, Dr. Orth, which opined that Plaintiffs conditions did not
meet or equal any listing under 11.00 or 1.00. (R. at 19,
573.) The Court finds the ALJ's explanation regarding
Listing 11.02 legally sufficient, as the ALJ cited to
specific objective medical findings and other evidence in the
record - namely, Dr. Orth's interrogatory answers - in
support of her conclusion. Indeed, the Court's own review
of the record finds substantial support for the ALJ's
finding that Plaintiffs impairments, either singly or in
combination, failed to meet or medically equal the criteria
of Listing 11.02.
11.02 requires evidence of epilepsy or an equivalent
impairment with a detailed description of a typical seizure
and evidence of either:
A. Generalized tonic-clonic seizures (see 11.00H1a),
occurring at least once a month for at least 3 consecutive
months (see 11.00H4) despite adherence to prescribed treatment
(see 11.00C); or
B. Dyscognitive seizures (see 11.00H1b),  occurring at
least once a week for at least 3 consecutive months (see
11.00H4) despite adherence to prescribed treatment (see
C. Generalized tonic-clonic seizures (see 11.00H1a),
occurring at least once every 2 months for at least 4
consecutive months (see 11.00H4) despite adherence to
prescribed treatment (see 11.00C); and a marked limitation in
one of the following: 1. Physical functioning (see 11.00G3a);
or 2. Understanding, remembering, or applying information
(see 11.00G3b(i)); or 3. Interacting with others (see
11.00G3b(ii)); or 4. Concentrating, persisting, or
maintaining pace (see 11.00G3b(iii)); or 5. Adapting and
managing oneself (see 11.00G3b(iv)); or
D. Dyscognitive seizures (see 11.00H1b), occurring at least
once every 2 weeks for at least 3 consecutive months (see
11.00H4) despite adherence to prescribed treatment (see
11.00C); and a marked limitation in one of the following: 1.
Physical functioning (see 11.00G3a); or 2. Understanding,
remembering, or applying information (see 11.00G3b(i)); or 3.
Interacting with others (see 11.00G3b(ii)); or 4.