Thomas Bowers v. Carolyn Colvin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-00458-JAB-LPA. Copies to all parties and the district court. [999674549]. [14-1700]

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 1 of 10

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1700

THOMAS R. BOWERS,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN,
Defendant – Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:10-cv-00458-JAB-LPA)

Argued:

September 16, 2015

Decided:

October 8, 2015

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: James Kevin Morton, Winston-Salem, North Carolina, for
Appellant. Jeanne Dana Semivan, SOCIAL SECURITY ADMINISTRATION,
Boston, Massachusetts, for Appellee.
ON BRIEF: Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina; John J. Engel, Special Assistant
United States Attorney, Office of General Counsel, SOCIAL
SECURITY ADMINISTRATION, Boston, Massachusetts, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 2 of 10

PER CURIAM:
Thomas Bowers (“Bowers”) petitions for review of the denial
of his claim for disability benefits under the Social Security
Act

(the

“SSA”).

The

administrative

law

judge

(the

“ALJ”)

reviewing the claim concluded that Bowers failed to meet his
burden to show that he suffered from Chronic Fatigue Syndrome
(“CFS”).

The

district

court,

adopting

a

Report

and

Recommendation from the assigned magistrate judge, granted the
Commissioner’s motion for judgment on the pleadings.
reasons

that

follow,

we

affirm

the

judgment

of

For the

the

district

court.

I.
In

2004,

Bowers

applied

for

Social

Security

benefits, claiming that he suffered from CFS.

disability

On June 20, 2008,

the ALJ who reviewed the application found that Bowers was not
disabled.

Specifically, the ALJ found that “[w]hile the medical

record does show that the claimant complained of fatigue, it
does

not

A.R. 20.

show

a

diagnosis

of

chronic

fatigue

syndrome.”

In the absence of a documented medical diagnosis, the

ALJ determined that Bowers failed to show that he suffered from
CFS.
Following

the

ALJ’s

decision,

Bowers

unsuccessfully

petitioned the Social Security Appeals Council for review of the
2

Appeal: 14-1700

Doc: 28

decision,

Filed: 10/08/2015

which

at

that

Pg: 3 of 10

point

became

final.

Bowers

then

initiated this action in the United States District Court for
the

Middle

District

of

North

Carolina.

After

the

Social

Security Commissioner moved for judgment on the pleadings, the
district
judge

judge

for

a

referred

Report

the

and

case

to

the

Recommendation

assigned

on

the

magistrate

motion.

The

magistrate judge recommended that the motion be granted, and
Bowers timely filed objections.

The district judge adopted the

Report and Recommendation and dismissed the case.

II.
On

appeal,

Bowers

contends

that

he

met

his

burden

of

showing that he suffered from CFS, and that the ALJ’s conclusion
was therefore erroneous.

Before turning to Bowers’s arguments,

we briefly set out the standard of review.

A.
In determining whether Bowers met his burden of showing
that he has a qualifying disability, we “will affirm the Social
Security Administration’s disability determination ‘when an ALJ
has

applied

correct

legal

standards

and

the

ALJ’s

findings are supported by substantial evidence.’”
Colvin,

780

F.3d

632,

634

(4th

Cir.

2015)

factual

Mascio v.

(quoting

Bird

v.

Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)).
3

Appeal: 14-1700

Our

Doc: 28

review

Filed: 10/08/2015

of

the

district

Pg: 4 of 10

court’s

decision

to

grant

the

Commissioner’s motion for judgment on the pleadings is de novo.
Id. (citing Korotynska v. Metro. Life Ins. Co., 474 F.3d 101,
104 (4th Cir. 2006)).
With this standard in mind, we turn to Bowers’s challenge
to the Commissioner’s decision.

B.
Bowers
because

contends

Bowers

specifically,

that

the

demonstrated
Bowers

ALJ’s

that

asserts

he

that

determination
suffered
the

from

ALJ’s

was

flawed

CFS.

decision

More
is

contradicted by the record, which (according to Bowers) contains
evidence of symptoms that meet the diagnostic criteria for CFS.
Bowers also contends that the ALJ’s determination that Bowers
retained

a

sufficient

residual

functional

capacity

was

erroneous, because the ALJ did not consider Bowers’s CFS-related
limitations. 1
The

adjudicative

process

governing

a

claim

for

social

security disability benefits involves a well-established, fivestep procedure.

Radford v. Colvin, 734 F.3d 288, 290–91 (4th

Cir. 2013) (citing 20 C.F.R. § 404.1520(a)(4); Hancock v. Astrue,
1

Because we find that substantial evidence supports the
ALJ’s finding that Bowers did not suffer from CFS, however, we
need not reach this argument.

4

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 5 of 10

667 F.3d 470, 472–73 (4th Cir. 2012)).

These steps proceed as

follows, as the Commissioner determines whether the claimant:
(1) worked during the purported period of disability;
(2) has an impairment that is appropriately severe and
meets the duration requirement; (3) has an impairment
that meets or equals the requirements of a ‘listed’
impairment and meets the duration requirement; (4) can
return to her past relevant work; and (5) if not, can
perform any other work in the national economy.
Radford, 734 F.3d at 290–91 (citing Hancock, 667 F.3d at 472–
73).
This appeal concerns the ALJ’s determination at step two of
that

procedure,

severe
. . .

medically
or

a

under

which

Bowers

determinable

combination

of

was

physical

required
or

impairments

20 C.F.R. § 404.1520(a)(4)(ii).

to

mental
that

show

“a

impairment

is

severe.”

Significant for purposes of our

analysis, the claimant bears the burden of production and proof
to show that he suffers from a severe medically determinable
impairment.

Radford, 734 F.3d at 291.

The record makes clear that no doctor has ever diagnosed
Bowers with CFS.

For this reason, Bowers does not take issue

with the ALJ’s assessment that, “while the medical record does
show that [Bowers] complained of fatigue, it does not show a
diagnosis of chronic fatigue syndrome.”

A.R. 20.

The record

does contain a notation from a September 2004 evaluation, where
Bowers’s

doctor

wrote

under

“ASSESSMENT”

that

Bowers

“ha[d]

chronic fatigue, possibly associated with previous Epstein-Barr
5

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

virus exposure.”

A.R. 557.

Pg: 6 of 10

Later that year, in December 2004,

the same doctor’s assessment again included the words “chronic
fatigue.”
CFS.

A.R. 491.

These notations are not a diagnosis of

Rather, these statements demonstrate that Bowers self-

reported

chronic

fatigue

as

a

symptom,

and

that

Bowers’s

physician was considering CFS as a potential diagnosis.
that

diagnosis

did

not

materialize;

the

record

But

contains

no

subsequent notations regarding CFS.
Bowers contends that he was not required to show a medical
diagnosis of CFS, and that, if the ALJ had reviewed the record,
he

would

have

determined

that

Bowers

suffers

from

CFS.

According to Bowers, the medical record reflects that he had
symptoms that satisfy the diagnostic criteria for the condition,
and that this sufficiently proves that he suffers from CFS as a
medically
argues

determinable

that

he

can

impairment.
demonstrate

In
an

evidence of the impairment’s symptoms.

other

impairment

words,
by

Bowers

offering

To support his argument,

Bowers points to Social Security Ruling 99-2p, which provides
standards for evaluating claims of disability based upon CFS.
Soc. Sec. Ruling, SSR 99-2p, Titles II and XVI: Evaluating Cases
Involving Chronic Fatigue Syndrome (CFS), 64 Fed. Reg. 23380

6

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 7 of 10

(Apr. 30, 1999) (hereinafter “SSR 99-2p”). 2

That Ruling explains

its function as follows:
[The
Social
Security
Act]
and
our
implementing
regulations require that an individual establish
disability based upon the existence of a medically
determinable impairment; i.e., one that can be shown
by medical evidence, consisting of medical signs,
symptoms and laboratory findings. . . . This Ruling
explains that CFS, when accompanied by appropriate
medical signs or laboratory findings, is a medically
determinable impairment that can be the basis for a
finding of “disability.” It also provides guidance of
claims involving CFS.
SSR 99-2p, 64 Fed. Reg. at 23381.

Bowers argues that SSR 99-2p

allows a claimant to prove that he suffers from CFS, even in the
absence

of

a

formal

diagnosis,

by

establishing

that

he

has

exhibited the medical signs enumerated in the ruling. He argues
that

by

criteria

demonstrating
of

CFS,

he

recognized impairment.

that
has

he

has

manifested

established

that

he

the

diagnostic

suffers

from

a

In particular, Bowers points to evidence

in the record of muscle tenderness, fatigue, and an elevated
Epstein-Barr

virus

titer.

Based

upon

this

evidence,

Bowers

contends that he has exhibited the established criteria for CFS,
and therefore has met his burden to establish an impairment.

2

SSR 99-2p was in effect at the time the ALJ initially
adjudicated Bowers’s claim. Since that time, the Social Security
Administration has rescinded SSR 99-2p and replaced the Ruling
with SSR 14-1p, which updates the diagnostic criteria in the
rule based upon advances in medical knowledge of CFS.

7

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 8 of 10

Bowers has provided no legal authority in support of his
view of SSR 99-2p, and we find his argument unpersuasive.

In

essence, Bowers’s reading of the Ruling asks the ALJ to do what
Bowers’s own doctors did not: diagnose him with CFS based upon
his symptoms.
through

the

Bowers argues that the ALJ should have combed
record

to

determine

whether

Bowers’s

documented

medical symptoms suggested that he suffered from CFS.

SSR 99-2p

does not require the ALJ to make such an assessment. 3

Instead,

the Ruling addresses how the ALJ should determine whether the
claimant’s

symptoms--measured

criteria--support

the

against

doctor’s

diagnosis.

established

medical

In

manner,

this

although SSR 99-2p does not expressly require a formal medical
diagnosis of CFS, it certainly proceeds from the assumption that
one has been made. 4

The text of 99-2p makes this clear:

3

This would have been particularly difficult for the ALJ to
do in this case, because the laboratory results relating to
Bowers’s elevated Epstein-Barr virus titers were not in the
record.
Bowers’s
doctor,
however,
had
this
information,
including the numeric values of the laboratory findings. By
contrast, the record before the ALJ only contained a doctor’s
notation that the readings were “elevated.” A.R. 556.
4

In fact, the current version of the Ruling expressly
acknowledges that a diagnosis of CFS is necessary, but not
sufficient, to establish a medically determinable impairment.
SSR 14-1p specifically states: “A person can establish that he
or she has . . . CFS by providing appropriate evidence from an
acceptable medical source. . . . We cannot rely upon the
physician’s diagnosis alone.” Soc. Sec. Ruling 14-1p, Titles II
and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome
(Continued)
8

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 9 of 10

CFS is a systemic disorder consisting of a complex of
symptoms that may vary in incidence, duration, and
severity. . . . In accordance with the criteria
established by the CDC, a physician should make a
diagnosis of CFS only after alternative medical and
psychiatric causes of chronic fatiguing illness have
been excluded.
SSR 99-2p, 64 Fed. Reg. at 23381 (emphasis added).

Moreover,

SSR 99-2p repeatedly states that its criteria are to be applied
to “individuals with CFS” or “persons with CFS,” which would be
circular

if

the

ALJ’s

role

were

(as

Bowers

suggests)

determine whether the claimant was an individual with CFS.

to
See,

e.g., id. at 23381–82.
Indeed, this court’s ruling in Mastro v. Apfel, 270 F.3d
171

(4th

Cir.

2001),

supports

our

holding

that

a

medical

determination is a necessary, but not sufficient, requirement
for a finding of disability based upon CFS.

In Mastro, we

affirmed the Commissioner’s decision to deny disability benefits
to

a

claimant

who

had

been

diagnosed

with

CFS,

because

the

diagnosis was not supported by the medical indicia required by
SSR 99-2p.

Id. at 178–79.

It would be curious indeed if we

were to hold that Bowers, who was never diagnosed with CFS, was
entitled

to

successful.

benefits,

given

the

plaintiff

in

Mastro

was

not

If it is true, as Bowers argues, that the ALJ could

(CFS), 2014 SSR LEXIS 1, at *9–10,
(Apr. 3, 2014) (footnote omitted).

9

2014

WL

1371245,

at

*4

Appeal: 14-1700

Doc: 28

Filed: 10/08/2015

Pg: 10 of 10

have found an impairment of CFS based upon his symptoms, then a
doctor could easily have done the same.

We merely hold that the

law requires this determination to be made by a doctor, and not
an ALJ, in the first instance.
In sum, we conclude that substantial evidence supports the
ALJ’s

determination

that

Bowers

failed

to

establish

through

medical evidence that he suffered from CFS.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

10