United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE.
are the objections filed on January 23, 2017, by plaintiff
Dennis Marcum, Jr. (“plaintiff”) to the
magistrate judge's proposed findings and recommendation
March 10, 2016, plaintiff instituted this civil action
pursuant to 42 U.S.C. § 405(g). Plaintiff seeks judicial
review of the Commissioner's administrative decision
denying his application for disability insurance benefits and
supplemental security income.
action was referred to United States Magistrate Judge Omar J.
Aboulhosn for consideration, pursuant to 28 U.S.C. §
636(b)(1)(B) and standing order in this district. The
magistrate judge filed his PF&R on December 19, 2016. In
that document, the magistrate judge recommends that the
Commissioner's final decision be affirmed, that
plaintiff's motion for judgment on the pleadings be
denied, that the motion for judgment on the pleadings filed
by defendant Carolyn W. Colvin (“the
Commissioner”) be granted, and that this action be
dismissed from the docket. See PF&R, 23. On January 23, 2016,
plaintiff filed objections to the PF&R. The Commissioner
has not responded to the objections.
objects to the magistrate judge's determination that the
ALJ's step three analysis was adequate and states that it
was not supported by substantial evidence. See
Plaintiff's Objections to PF&R (“Obj.”),
Standard of review
court reviews de novo those portions of the magistrate
judge's PF&R to which objections are timely filed. 28
U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982); see also 20 C.F.R. §
416.927(e)(1) (ultimate decision regarding disability
determinations rests with the Commissioner). On the other
hand, the standard of review of the Commissioner's
decision is rather deferential to the Commissioner, for,
“[u]nder the Social Security Act, [a reviewing court]
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.” Johnson
v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005);
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.
1974) (court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence); see also 42 U.S.C. § 405(g).
Substantial evidence is that which “a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal citations omitted).
reviewing for substantial evidence, [a district court does]
not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.” Johnson, 434 F.3d at 653. Substantial
evidence is by definition more than “a mere scintilla,
” Smith v. Chater, 99 F.3d 635, 638 (4th Cir.
1996), but “may be somewhat less than a preponderance,
” Blalock v. Richardson, 483 F.2d 773, 776
(4th Cir. 1972) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1996)).
Social Security regulations establish a “sequential
evaluation” for the adjudication of disability claims.
See 20 C.F.R. §§ 404.1520(a), 416.920(a). The first
question is whether the claimant is currently engaged in
gainful employment. Id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the second
question is whether the claimant suffers from a severe
impairment. Id. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If so, the third question, at issue here,
is whether the claimant's impairment or impairments meets
or equals any of the specific impairments listed in Appendix
1 to Subpart P of the regulations. Id. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If it does, the
claimant is considered disabled, and is awarded benefits.
Id. If not, the inquiry continues on to questions
not presently relevant.
Listing of Impairments, as a general matter, describes, for
each anatomical system, impairments that are considered
“severe enough to prevent an individual from doing any
gainful activity, regardless of his or her age, education, or
work experience.” 20 C.F.R. §§ 404.1525(a),
416.925(a). In order to meet a listing, a claimant's
impairment must “meet all of the specified medical
criteria.” Sullivan v. Zebley, 493 U.S. 521,
530 (1990). “For a claimant to qualify for benefits by
showing that his . . . combination of impairments . . . is
‘equivalent' to a listed impairment, he must
present medical findings equal in severity to all the
criteria for the one most similar listed impairment.”
Id. (citing 20 C.F.R. § 416.926(a)). The ALJ
must identify listings that are relevant to the claimant and
compare “‘each of the listed criteria to the
evidence of [the claimant's] symptoms.'”
Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D. Md.
1999) (quoting Cook v. Heckler, 783 F.2d 1168, 1172
(4th Cir. 1986).
concluded that Mr. Marcum had the following severe
impairments: cardiac dysrhythmias/late effects of transient
ischemic attack (TIA), chronic obstructive pulmonary disease
(COPD), and history of Hodgkin's lymphoma. See Tr., 15.
At step three of the sequential analysis, the ALJ determined
that plaintiff's impairments failed to meet or equal the
severity of any of the impairments listed in Appendix 1,
specifically considering Listings 4.05, 3.02, and 13.05.
Id. at 17.
stated the following as to why plaintiff did not meet or
equal any of those listings:
The claimant's heart condition does not meet or equal the
criteria of Listing 4.05 because he does not have recurrent
arrhythmias, not related to reversible causes, such as
electrolyte abnormalities or digitalis glycoside or
antiarrhythmic drug toxicity, resulting in uncontrolled,
recurrent episodes of cardiac syncope or near syncope,
despite prescribed treatment, and documented by resting or
ambulatory (Holter) electrocardiography, or by other
appropriate medically acceptable testing, coincident with the
occurrence of syncope or near syncope.
The claimant's COPD does not meet or equal the criteria
of Listing 3.02 because he does not have FEV values equal to
or less than 1.55; nor chronic impairment of gas exchange;
nor significantly abnormal arterial blood gas values (Exhibit
The claimant's history of lymphoma does not meet or equal
the criteria of Listing 13.05, because he does not have
Hodgkin's disease with failure to achieve clinically
complete remission, or recurrent disease within 12 ...