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Marcum v. Berryhill

United States District Court, S.D. West Virginia, Charleston

March 23, 2017

DENNIS MARCUM, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Pending are the objections filed on January 23, 2017, by plaintiff Dennis Marcum, Jr. (“plaintiff”) to the magistrate judge's proposed findings and recommendation (“PF&R”).

         I. Procedural history

         On 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.

         This 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.[1] See PF&R, 23. On January 23, 2016, plaintiff filed objections to the PF&R. The Commissioner has not responded to the objections.

         Plaintiff 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.”), 2.

         II. Standard of review

         The 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).

         “In 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)).

         III. Discussion


         The 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.

         The 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).


         The ALJ 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.

         The ALJ 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 8F, p.7).
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 ...

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