Lawler v. Astrue

Filing 31

MEMORANDUM. Signed by Magistrate Judge Beth P. Gesner on 4/19/11. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DEBRA JEAN LAWLER,

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Plaintiff,

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v.

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MICHAEL J. ASTRUE,
Commissioner of
Social Security,

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Defendant.
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Civil Action No. BPG-09-1614

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MEMORANDUM
Plaintiff, Debra Jean Lawler, brought this action pursuant
to 42 U.S.C. § 405(g) for review of the final decision of the
Commissioner denying her application for a period of disability
and disability insurance benefits (ADIB@) under Title II of the
Social Security Act, 42 U.S.C. §§ 401 et seq.

Currently pending

are plaintiff=s Motion for Summary Judgment and defendant=s Motion
for Summary Judgment. (ECF Nos. 14, 30.)

These motions have been

referred to the undersigned with the parties= consent pursuant to
28 U.S.C. § 636 and Local Rule 301.
necessary.

Loc. R. 105.6.

No hearing is deemed

For the reasons discussed below, the

court denies plaintiff=s Motion for Summary Judgment (ECF No. 14)
and grants defendant=s Motion for Summary Judgment (ECF No. 30).
I.

Background
Plaintiff filed for a period of disability and DIB on June

9, 2006, alleging that she became disabled on November 8, 2004 as

a result of, inter alia, membranous nephropathy,1 arthritis,
gout, and osteoporosis.

(R. at 79-84, 105.)

After her

application was denied initially (R. at 49, 51-54), and upon
reconsideration (R. at 50, 58-59), plaintiff appeared via
videoconference for a hearing before Administrative Law Judge
(“ALJ”) Melvin D. Benitz on May 20, 2008 (R. at 25-48).
Plaintiff was represented at her hearing by Paul R. Schlitz, Esq.
(R. at 25.)
(“VE”).

Also testifying was a qualified vocational expert

(R. at 39-46.)

In a decision dated June 9, 2008, ALJ

Benitz concluded that plaintiff is not disabled under the
relevant sections of the Social Security Act and, accordingly,
denied her application for benefits.

(R. at 10-24.)

On August 22, 2009, the Appeals Council held that there was
no basis for granting review of the ALJ’s decision.

(R. at 1-3.)

Plaintiff timely sought judicial review and now petitions this
court for summary judgment reversing the ALJ=s decision and
awarding plaintiff the benefits she has requested.

(ECF No. 14.)

In the alternative, plaintiff asks this court to remand the
matter for further proceedings.
II.

(Id.)

Standard of Review
The role of this court on review is to determine whether the

ALJ applied correct legal standards and whether substantial

1

Membranous nephropathy is a kidney disorder characterized by
“inflammation of the structures inside the kidney that help
2

evidence supports the ALJ=s decision.
1453, 1456 (4th Cir. 1990).

Hays v. Sullivan, 907 F.2d

Substantial evidence is that which

Aa reasoning mind would accept as sufficient to support a
particular conclusion.@

Laws v. Celebrezze, 368 F.2d 640, 642

(4th Cir. 1966); accord Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001).

It is more than a scintilla but less than a

preponderance of the evidence.

Id.

It is evidence sufficient to

justify a refusal to direct a verdict if the case were before a
jury.

Hays, 907 F.2d at 1456.

In reviewing for substantial

evidence, the court does not weigh conflicting evidence, make
credibility determinations, or substitute its judgment for that
of the ALJ.

Id.

The Commissioner has promulgated regulations that set forth
the following five-step analysis that an ALJ must follow in
determining whether a claimant is disabled:
(1)

The ALJ determines whether the claimant is engaged in
substantial gainful activity as defined in 20 C.F.R. §
404.1571 and § 416.971 et seq. If so, the claimant is
not disabled.

(2)

If not, the ALJ examines the physical and/or mental
impairments alleged by the claimant and determines
whether these impairments meet the durational and
severity requirements set forth in 20 C.F.R. § 404.1520
and § 416.920. If not, the claimant is not disabled.

(3)

If so, the ALJ considers whether the impairment or
impairments, either severally or in combination, meet
or equal an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, known as the Listing of

filter waste and fluids,” causing kidney function to become
impaired. http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001504.
3

Impairments (AListings@).
disabled.

If so, the claimant is

(4)

If not, the ALJ considers whether the claimant retains
the residual functional capacity (“RFC”) to do past
relevant work (APRW@). If so, the claimant is not
disabled.

(5)

If not, the ALJ determines whether the claimant is
capable of some other work based on the claimant=s RFC,
age, education, and past work experience. The
Commissioner bears the burden of proof at step five.
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If
the claimant is not capable of other work, the claimant
is disabled.

See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987).
III. Discussion
The ALJ analyzed plaintiff’s claim pursuant to the requisite
five-step sequential analysis.

At step one, the ALJ determined

that plaintiff is not currently engaged in substantial gainful
activity.

(R. at 12.)

At step two, the ALJ concluded that

plaintiff has the following “severe” impairments:

“status post

left ankle fracture with open reduction and internal fixation;
status post two left shoulder surgeries; kidney nephropathy with
chronic kidney disease and obesity.”

(R. at 12-15.)

At step

three, the ALJ found that plaintiff’s limitations do not meet or
medically equal one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (“Listings”).

(R. at 15-16.)

At step

four, the ALJ concluded that plaintiff is not able to perform
past relevant work.

(R. at 22.)

At step five, the ALJ

4

determined that, based on plaintiff’s RFC, age, education, and
past work experience, plaintiff is capable of other work that
exists in significant numbers in the national economy.
22-23.)

(R. at

Accordingly, the ALJ concluded that plaintiff is not

disabled.

(R. at 23.)

Prior to her step four and step five determination, the ALJ
concluded that plaintiff retains the RFC to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except that the claimant could stand for 10 minutes and
sit for 30 minutes consistently on an alternate basis for
8 hours a day, 5 days a week; would need to avoid heights
and hazardous machinery; would need to avoid prolonged
climbing, balancing and stooping defined as no more than
1-2 times per hour; would need to avoid temperature and
humidity extremes, vibration and ladders, ropes and
scaffolds; would be mildly limited in pushing, pulling
and gripping in the left upper extremity; should avoid
overhead lifting with the left upper extremity; would
require jobs allowing for elevation of the ankle if
needed and allowing for ready access to a bathroom if
needed and would require simple routine jobs that involve
low stress, low concentration and low memory, defined as
svp22 jobs.
(R. at 16-22.)
On appeal, plaintiff argues that the ALJ erred in several
respects:

(1) the ALJ’s hypothetical to the vocational expert

(“VE”) did not produce a significant number of jobs to support a
denial of benefits (ECF No. 14-1 at 5-6) and was “unclear and
2

SVP refers to “Specific Vocational Preparation,” which is
defined as “the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific
job-worker situation.” Dictionary of Occupational Titles (DOT)
Appendix C (4th rev. ed. 1991).
5

internally inconsistent” (Id. at 8-9); (2) the ALJ improperly
afforded the medical opinion of plaintiff’s treating physician,
Dr. Santos-Tecson, less than controlling weight (Id. at 7); and
(3) there is no medical opinion to support the ALJ’s
determination that plaintiff’s kidney disease does not meet or
equal a Listing, and the ALJ does not have the “medical acumen”
to make such a determination (Id. at 7-8).

The court will

address these arguments in turn.
A.

The ALJ’s Hypothetical

Plaintiff argues that the ALJ erred at step five of the
sequential analysis because his hypothetical to the VE did not
produce a sufficient number of jobs to support his finding that
plaintiff is capable of performing work that exists in the
national economy and therefore not disabled.

(Id. at 5-6.)

Plaintiff also complains that the ALJ’s hypothetical was “unclear
and internally inconsistent.”

(Id. at 8-9.)

The ALJ’s hypothetical to the VE described plaintiff’s
limitations as follows:
I’d like to give you a hypothetical of a person who is 42
years of age on her onset date. She has a 12th grade
education and the past relevant work as indicated, lefthanded by nature, suffering from various impairments.
She has gout on occasion. She has a kidney deficiency
and nephropathy.
And she has left upper extremity
deficiency in her shoulder and mild degenerative disk
[sic] disease, obesity. All these things do cause her to
have some pain and discomfort, some decreased range of
motion in her left upper extremity.
She also has a

6

fractured left ankle in 2002 that is still giving her
problems, swelling, all of which is somewhat relieved by
her medications without significant side effects. She
indicates she (inaudible) tiredness from one or a
combination of medicines.
If I find . . . that
[plaintiff] needs to have simple, routine, unskilled job,
SVP two job, low stress, low concentration, low memory,
is able to attend to tasks and complete schedules;
however, this due to her pain and discomfort. Able to
lift ten pounds occasionally, lesser amounts frequently.
Stand for 10 minutes, sit for 30 minutes at a time
consistently on an alternate basis during an eight-hour
day, five days a week. That due to her ankle would have
to avoid heights and hazardous machinery. No prolonged
climbing, standing, balancing. By that I mean no more
than once or twice an hour.
Avoid temperature and
humidity extremes, vibrations, ladders, ropes, scaffolds.
And would be at this time moderately limited as to push
and pull with the left upper extremity.
No overhead
reaching with that extremity, and jobs that would allow
her to elevate her ankle off of weight bearing on
occasion, if needed. And jobs that would allow her to
have ready access to a bathroom as she needs. With those
limitations she can do sedentary work activity . . . .
(R. at 40-41.)

The VE who testified at plaintiff’s hearing found

that, based on the above hypothetical, plaintiff was capable of
performing sedentary, unskilled jobs and that such jobs exist in
significant numbers in the national economy.

(R. at 41-43.)

Specifically, the VE identified two occupations that would allow
plaintiff a sit/stand option and enable her to elevate her ankle
and have access to a bathroom:
clerk.

(R. at 41-42.)

call-out operator and information

The VE noted that there are 65,000 call-

out operator positions nationally and 510 regionally, with 75-100
regionally that would allow for the limitations described in the
ALJ’s hypothetical.

(R. at 42-43.)

The VE also testified that

there are 1 million information clerk positions nationally and
7

12,000 regionally, with 3,000 regionally accounting for the ALJ’s
hypothetical.

(Id.)

Plaintiff challenges the information clerk position because
“the VE stated that it was light work exertionally” but “[t]he
ALJ limited [plaintiff] to sedentary work.”
20 C.F.R. § 404.1567(b)).)

(Id. at 5-6 (citing

The regulations discussing physical

exertion requirements define “light” work as involving “lifting
no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds.”
404.1567(b).

20 C.F.R. §

“Sedentary” work, on the other hand, “involves

lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small
tools.” § 404.1567(a).
As plaintiff points out, the ALJ’s hypothetical must ensure
that the VE understands what the claimant’s limitations are.
(ECF No. 14-1 at 8 (citing Walker v. Bowen, 889 F.2d 47, 50-51
(4th Cir. 1989) (hypothetical question to VE must “fairly set out
all of claimant’s impairments”).)

Here, the VE was careful to

qualify the information clerk position as “light, but light
meaning because you’re using your upper extremity, not because of
weight exertion.”

(R. at 42.)

Contrary to plaintiff’s

assertion, this is consistent with the ALJ’s hypothetical, which
stated that plaintiff “has left upper extremity deficiency” which
“cause[s]” her to have some pain and discomfort” and “decreased

8

range of motion in her left upper extremity,” and that plaintiff
is “moderately limited” in her ability to push and pull with her
upper left extremity.

(R. at 40-41.)

The ALJ’s hypothetical

plainly stated that, as a result of her impairments, plaintiff is
limited to less strenuous “sedentary work activity” and can lift
“ten pounds occasionally, lesser amounts frequently.” (R. at 41.)
Plaintiff also takes issue with the call-out operator
position, claiming that it does not exist in sufficient numbers
to support the ALJ’s finding that plaintiff is capable of
performing work that exists in significant numbers in the
national economy.

(ECF No. 14-1 at 6.)

Specifically, plaintiff

argues that 75-100 jobs is not a “significant number” within the
meaning of 42 U.S.C. § 423(d)(2)(A).3

(Id.)

The statute and corresponding regulations clearly state that
“work . . . exists in the national economy” for purposes of the

3

42 U.S.C. § 423(d)(2)(A) provides:

An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in
the national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work. For purposes
of the preceding sentence (with respect to any
individual), “work which exists in the national economy”
means work which exists in significant numbers either in
the region where such individual lives or in several
regions of the country.
9

disability determination when it “exists in significant numbers
either in the region where [the claimant] lives or in several
regions of the country.”
404.1566(a).

42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §

The regulations go on to state that “[i]t does not

matter whether [ ] [w]ork exists in the immediate area in which
[the claimant] live[s]” or that the work exists in only one
occupation.

20 C.F.R. § 404.1566(a)(1), (b).

The fact that

there are only 75-100 call-out operator jobs in the region where
plaintiff lives, therefore, does not undermine the ALJ’s
conclusion that plaintiff is capable of performing work that
exists in significant numbers in the national economy.

Moreover,

the 75-100 call-out operator jobs did not represent the total
number of jobs identified by the VE—the VE also identified 3,000
information clerk jobs regionally that plaintiff would be capable
of performing.

Finally, plaintiff’s argument is undermined by

Hicks v. Califano, 600 F.2d 1048, 1051 n. 2 (4th Cir. 1979)
(declining to conclude that 110 jobs in the region is an
insignificant number)4 and Hall v. Bowen, 837 F.2d 272, 275 (6th
Cir. 1980) (upholding 1350 jobs in a nine-county area as a
“significant number” even where they represented a small
percentage of the total jobs available).

4

Plaintiff inaccurately asserts that the Hicks court
“stated that 100 jobs were not a significant number of jobs in
1979.” (ECF No. 14-1 at 6.)
10

Plaintiff also complains that “the VE was unclear about the
parameters of “region” asserting that “[o]nly national numbers
and “Baltimore” were mentioned.”

(ECF No. 14-1 at 6.)

The VE,

however, expressly defined “regional area” as “Baltimore and the
surrounding area.”

(R. at 42.)

More importantly, as discussed

above, the statutory scheme does not require that work exist in
the immediate region where a claimant lives for it to “exist[] in
the national economy.”

42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §

404.1566(a).
Finally, plaintiff complains that the ALJ’s hypothetical was
inconsistent with his description in his opinion of plaintiff’s
RFC.

(ECF No. 14-1 at 8-9.)

Specifically, plaintiff points out

that the ALJ’s hypothetical described her as “moderately limited
as to push and pull with the left upper extremity” (R. at 41),
whereas the ALJ’s opinion described her as “mildly limited in
pushing, pulling and gripping in the left upper extremity” (R. at
16).

Plaintiff contends that the ALJ failed to define the terms

“moderate” and “mild.”
unpersuasive.

(ECF No. 14-1 at 8-9.)

This argument is

The court finds no inconsistency in the ALJ’s

hypothetical as compared to his opinion, and cannot conclude that
his failure to define the terms “mild” and “moderate” constitutes
reversible error, nor does plaintiff advance any legal support
for such a conclusion.
In sum, the ALJ’s hypothetical “fairly set out” all of

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plaintiff’s impairments and consequent limitations, Walker v.
Bowen, 889 F.2d 47, 50 (4th Cir. 1989) and produced a sufficient
number of jobs that were consistent with these limitations to
support his conclusion that plaintiff is capable of performing
work that exists in the national economy.

Accordingly, the ALJ’s

conclusion at step five of the sequential analysis that plaintiff
is not disabled is supported by substantial evidence.
B.

The ALJ’s Consideration of Dr. Santos-Tecson’s Opinion

Plaintiff next argues that the ALJ improperly gave less than
controlling weight to the medical opinion of her treating
physician, Dr. Encarnita Santos-Tecson.

(ECF No. 14-1 at 7.)

Specifically, plaintiff argues that there was no persuasive
evidence contradicting Dr. Santos-Tecson’s opinion and that the
ALJ failed to properly evaluate Dr. Santos-Tecson’s opinion
according to the criteria set forth in 20 C.F.R. §
404.1527(d)(1)-(6).

(Id. (citing Coffman v. Bowen, 829 F.2d 514,

517 (4th Cir. 1987) (treating physician’s opinion should not be
rejected unless there is persuasive contrary evidence); SSR 962p).)

The Commissioner responds that “the ALJ did, in fact,

discuss and explain his reasons for not giving controlling weight
to the opinion of Dr. Santos-Tecson.”

(ECF No. 30-2 at 14

(citing R. at 20-21).)
Ordinarily, the testimony of treating physicians is given
great weight in disability determinations.

12

See 20 C.F.R. '

404.1527(d)(2); Coffman v. Bowen, 829 F.2d 514, 517-18 (4th Cir.
1987).

A treating physician=s opinion, however, should be given

significantly less weight if it is inconsistent with substantial
evidence.

Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996)

(citing 20 C.F.R. ' 416.927 (1996)).
Dr. Santos-Tecson has been plaintiff’s treating physician at
the Veterans Affairs Medical Center (“VAMC”) since December 2004.
(R. at 233.)

On June 27, 2007, Dr. Santos-Tecson completed a

Medical Assessment of Ability to Do Work-Related Activities
(Physical), in which she opined that plaintiff was limited to
lifting or carrying ten pounds frequently and fifteen pounds
occasionally due to her history of “recurrent dislocation of [the
left] shoulder joint with recent repair” that has “still not
healed 100%,” and that plaintiff can sit and stand or walk for up
to ten minutes and occasionally perform all postural activities
as a result of her “underlying renal disease.”

(R. at 230-31.)

Dr. Santos-Tecson further found that plaintiff’s handling and
pushing/pulling abilities were limited due to her “underlying
left shoulder impairment” and that plaintiff had various
environmental restrictions as a result of her “underlying chronic
renal disease.”

(R. at 232.)

Dr. Santos-Tescon concluded that,

due to her renal condition, plaintiff is unfit to work under any
circumstances.

(R. at 233.)

The ALJ considered Dr. Santos-Tecson’s opinion and concluded

13

that it was unsupported by the evidence and inconsistent with the
record as a whole and, accordingly, afforded it only “some
weight.”

(R. at 20.)

The ALJ noted that, even though his

conclusion as to plaintiff’s left shoulder limitations was
actually more generous than Dr. Santos-Tecson’s, “the medical
records reveal no real difficulties with the left upper extremity
following [plaintiff’s] surgery.”

(Id.)

The ALJ considered, for

example, plaintiff’s orthopedic surgeon’s report that plaintiff
was “doing well” following her shoulder surgery as of January
2007, had good strength and improved range of motion, and only
complained of some stiffness and soreness.
R. at 220-225, 234-333).)

(R. at 15, 18 (citing

The ALJ further observed that there

were no complaints of any problems with plaintiff’s shoulder
noted in the medical records from the VAMC or from Preston Family
Physicians.

(R. at 18 (citing R. at 234-333, 343-353).)

The ALJ

also noted plaintiff’s testimony at the hearing that she has not
dislocated her shoulder since the surgery and only experiences
“some joint pain” but “admitted to being scared to use the arm”
for fear of reinjuring it.

(R. at 18, 20.)

The ALJ also considered plaintiff’s ankle impairment,
observing that the medical reports revealed only “some edema” and
“occasional bouts of gout” and noting that “[t]here is no
indication of any major residual effects from her fracture.”
at 20 (citing R. at 153-204, 234-333, 343-53).)

14

(R.

Moreover, the

ALJ found that “nothing in the medical records from the VAMC,
Preston Family Physicians or Dr. Weinstein”5 support a finding
that plaintiff is limited to sitting and standing for less than
ten minutes.

(Id. (citing R. at 153-204, 234-333, 343-53, 354-

63).)
The ALJ also observed, in assessing Dr. Santos-Tecson’s
opinion, that plaintiff’s kidney disease is “currently stage II,”
“mild in nature,” and has improved over time, noting that, “even
when [plaintiff] had more significant proteinuria,6 lower GFP and
higher creatine levels, her condition was only moderate at best.”
(R. at 20 (citing R. at 153-204, 234-363).)

The ALJ considered

the opinion of plaintiff’s nephrologist, Dr. Weinstein, who
treated plaintiff in March and April of 2008, that plaintiff had
“mild” chronic kidney disease, “very little proteinuria and
reasonably well-preserved kidney function,” which the ALJ
concluded was “not consistent with a disabling kidney condition.”
(R. at 18 (citing R. at 357-58).)

The ALJ also discredited Dr.

Santos-Tecson’s conclusion that plaintiff’s limitations have
existed since 2000, noting that Dr. Santos-Tecson did not begin
treating plaintiff until 2004.

(R. at 20.)

5

Dr. Adam J. Weinstein, M.D., is a nephrologist who began
treating plaintiff in March, 2008. (R. at 354-63.)
6

Proteinuria is a condition characterized by abnormal
levels of protein in the urine.
http://kidney.niddk.nih.gov/kudiseases/pubs/proteinuria.
15

While the ALJ did not expressly cite to all of the factors
listed in the Code of Federal Regulations regarding the weight
given to the treating physician=s opinion,7 the ALJ discussed the
factors that were primarily relevant to the facts presented in
this case, that is, the lack of evidentiary support for Dr.
Santos-Tecson’s conclusion and its inconsistency with other
evidence of record.8

As the Commissioner notes, the ALJ

“explained each of his determinations with citations to
supporting portions of the record.”

(ECF No. 30-2 at 15.)

In

sum, the ALJ’s decision to accord Dr. Santos-Tecson’s opinion
only “some weight” was supported by substantial evidence.9

7

The factors to consider in determining how much weight to
give a medical opinion are: (1) the length of the treatment
relationship and frequency of examination, (2) the nature and
extent of treatment; (3) the evidence supporting the opinion, (4)
the consistency of the opinion with the record as a whole, (5)
the physician’s specialization, if any; and (6) other factors.
20 C.F.R. ' 404.1527(d) (2006).
8

The ALJ also accorded “little weight” to the opinions of
state agency consultants Maureen Ahn, M.D., and James Johnston,
M.D., because they did not consider medical evidence produced
after their opinions were rendered and did not properly evaluate
plaintiff’s subjective complaints. (R. at 21.) Further, the ALJ
found consultative examiner Dr. Christian Jensen’s medical
assessment to be “of little benefit” because he did not examine
plaintiff’s left shoulder or provide specific quantification of
plaintiff’s limitations. (R. at 20-21.) The ALJ thus considered
the evidence supporting all of the medical opinions, as well as
their consistency with the record as a whole, in determining
which opinions to credit.
9

In addition to the evidence discussed above, earlier in
his opinion, the ALJ cited medical records, including an October,
2006 letter from Dr. Santos-Tecson, indicating that plaintiff has
not always been compliant in taking her prescribed medications.
16

C.

The ALJ’s Evaluation of Plaintiff’s Kidney Disease

Finally, plaintiff argues that there is no medical opinion
to support the ALJ’s determination at step three of the analysis
that plaintiff’s kidney disease did not meet or medically equal
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1
and further asserts that the ALJ “does not have the medical
acumen” to reach make such a determination.

(ECF No. 14-1 at 7-8

(citing Bailey v. Chater, 68 F.3d 75 (4th Cir. 1995).)

The

Commissioner responds that the “regulations require that the ALJ
analyze the medical records and make final determinations as to
whether claimants are disabled” and asserts that the medical
records support a finding that plaintiff is not disabled.

(ECF

No. 30-2 at 19-27.)
The regulations promulgated by the Commissioner expressly
state that ALJs “are responsible for reviewing the evidence and
making findings of fact and conclusions of law.”
404.1527(f)(2).

20 C.F.R. §

The regulations further state that resolution of

certain issues is reserved to the ALJ, including whether a
claimant meets the statutory definition of disabled and whether a
claimant’s impairments meet or medically equal a Listing.
C.F.R. §§ 404.1527(e)(1)-(2); 404.1526(e).

20

Further, as the

(R. at 18 (citing R. at 153-204, 234-333); see English v.
Shalala, 10 F.3d 1080, 1084 (4th Cir. 1993) (claimant’s failure
to take prescribed medications supported ALJ’s conclusion that
claimant was not disabled).)
17

Commissioner points out, “the regulations contemplate that not
all cases will include medical opinions.”

(ECF. No. 30-2 at 20

(citing 20 C.F.R. § 404.1527(a)(2) (“Evidence that you submit or
that we obtain may contain medical opinions.”) (emphasis added).)
Thus, contrary to plaintiff’s assertion, the ALJ properly
evaluated the medical evidence in the record, including notes and
reports by plaintiff’s physicians and laboratory test results, to
reach a conclusion that plaintiff’s kidney condition was not
disabling.10

In addition, substantial evidence in the record

supports the ALJ’s conclusion that plaintiff’s kidney condition
did not meet or equal a Listing.

(R. at 16.)

The ALJ observed

that plaintiff “has not been on dialysis; has not had a kidney
transplant and has not had creatine levels persisting at 4 mg. or
higher or a reduction of creatine clearance to 20 ml. per minute
or less for 3 months,” as required to meet Listing 6.02,
“Impairment of Renal Function.”
333, 335-363).)

(Id. (citing R. at 153-204, 234-

In addition, the ALJ determined that plaintiff’s

kidney condition does not meet or equal Listing 6.06 for

10

As the Commissioner argues, the case plaintiff cites in
support of her argument, Bailey v. Chater, 68 F.3d 75, 78 (4th
Cir. 1995), held that an ALJ is required, pursuant to SSR 83-20,
to consult a medical advisor to determine the onset date of the
claimant’s disability where evidence regarding the onset date is
ambiguous. This case does not stand for the broad proposition,
as plaintiff urges, that “medical findings by an ALJ without
medical authority are invalid.” (ECF No. 14-1 at 8.) As the
instant case presents no issue as to the onset date of
plaintiff’s alleged disability, Bailey is inapposite.
18

nephrotic syndrome, “as she has not had significant anasarca11
persistent for at least 3 months despite prescribed therapy,” as
required to meet that Listing.

(Id.)

The ALJ’s finding is

consistent with the determination of plaintiff’s nephrologist,
Dr. Weinstein, that plaintiff had “reasonably well-preserved
kidney function” and “mild” stage II chronic kidney disease as
well as his recommendation of medication and continued renal
monitoring.

(R. at 357-58.)

In sum, plaintiff does not point

to, nor does a review of the record reveal, any medical evidence
that indicates that plaintiff meets the criteria in either of the
relevant Listings.
IV.

Conclusion
For the foregoing reasons, the court denies plaintiff=s

Motion for Summary Judgment (ECF No. 14), and grants defendant=s
Motion for Summary Judgment (ECF No. 30).

A separate Order shall

issue.

Date:

/s/
Beth P. Gesner
United States Magistrate Judge

04/19/11

11

Anasarca is defined as “generalized massive edema.”
Dorland’s Medical Dictionary 75 (31st ed. 2007).
19