WHEELER v. BERRYHILL

Filing 19

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 3/26/2019. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff' ;s Motion for Summary Judgment Reversing or Remanding for Rehearing the Commissioner's Final Administrative Decision (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) be granted, and this action be dismissed with prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KIMBERLY ZISSETTE WHEELER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV1074

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kimberly Zissette Wheeler, brought this action
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Acting Commissioner of
Social Security, denying Plaintiff’s claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)

Defendant has filed the certified administrative record

(Docket Entries 8, 16 (cited herein as “Tr. __”)), and both parties
have moved for judgment (Docket Entries 11, 17; see also Docket
Entry

13

(Plaintiff’s

Memorandum)).

Brief);

Docket

Entry

18

(Defendant’s

For the reasons that follow, the Court should enter

judgment for Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI.

(Tr. 197-203, 204-09.)

Upon denial of those applications initially (Tr. 68-87, 110-15) and
on reconsideration (Tr. 88-109, 120-37), Plaintiff requested a

hearing

de

novo

(Tr. 138-39).

before

an

Administrative

Law

Judge

(“ALJ”)

Plaintiff, her attorney, and a vocational expert

(“VE”) attended the hearing.

(Tr. 37-67.)

The ALJ subsequently

ruled that Plaintiff did not qualify as disabled under the Act.
(Tr. 20-31.)

The Appeals Council thereafter denied Plaintiff’s

request for review (Tr. 1-7, 195-96, 306), thereby making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2018.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 25, 2014, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
pseudoseizures.[1]
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .

1

“According to Dorland’s Illustrated Medical Dictionary, psychogenic seizures
are also called pseudoseizures and are defined as being ‘attack[s] resembling an
epileptic seizure but having purely psychological causes; [they] lack the
electroencephalographic characteristics of epilepsy and the patient may be able
to stop [them] by an act of will.’” Coleman v. Astrue, No. 3:05-0389, 2010 WL
28567, at *12 (M.D. Tenn. Jan. 5, 2010) (unpublished) (quoting Dorland’s
Illustrated Medical Dictionary 1536, 1676 (30th ed. 2003)).

2

5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except she can
frequently climb ramps or stairs and never climb ladders,
ropes, or scaffolds.
She can occasionally balance.
[Plaintiff] can frequently handle with the left upper
extremity. She must avoid all exposure to unprotected
heights and hazardous machinery.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a cashier and short-order cook. This work does
not require the performance of work-related activities
precluded by [Plaintiff’s] residual functional capacity.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from March 25, 2014, through the
date of this decision.
(Tr.

25-31

(bold

font

and

internal

parenthetical

citations

omitted).)
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

the Court “must uphold the factual findings of the ALJ if they are
3

supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

“It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).

“If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there
is

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and

4

was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).2

“To

regularize

the

adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id.

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

2

The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
provides benefits to indigent disabled persons. The statutory definitions and
the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).

5

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.4

Step four then requires the ALJ to assess

3

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

4

“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
(continued...)

6

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

See id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.5
B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:

4

(...continued)
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
5

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

7

1) “[t]he Appeals Council’s failure to consider additional
opinion evidence warrants reversal or remand for rehearing” (Docket
Entry 13 at 3 (bold font and single-spacing omitted)); and
2) “[t]he ALJ’s failure to address whether [Plaintiff] meets
Listing 12.07 warrants reversal or remand” (id. at 5 (bold font and
single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 18 at 4-11.)

1. New Evidence Submitted to the Appeals Council
In Plaintiff’s first assignment of error, she alleges that
“[t]he Appeals Council’s failure to consider additional opinion
evidence warrants reversal or remand for rehearing.” (Docket Entry
13 at 3 (emphasis added) (bold font and single-spacing omitted).)
In particular, Plaintiff faults the Appeals Council for finding
that

Plaintiff’s

new

evidence

“‘d[id]

not

show

a

reasonable

probability that it would change the outcome of the decision’” and,
therefore, “‘not consider[ing] and exhibit[ing] this evidence.’”
(Id. at 4 (quoting Tr. 2) (emphasis added) (bold font omitted).)
According

to

Plaintiff,

“[t]he

Appeals

Council

could

deny

[Plaintiff’s] request for review because [it] found the evidence
considered

does

not

show

a

reasonable

probability

that

the

additional evidence would change the outcome of the decision” (id.
(emphasis added) (citing 20 C.F.R. § 404.970(a)(5))), but “the
Appeals Council could not . . . fail to even consider [Plaintiff’s]

8

new evidence because it does not show a reasonable probability that
it would change the outcome of the decision” (id. (citing 20 C.F.R.
§ 404.970(b))).

Plaintiff further maintains that, “[s]ince the

Appeals Council does not further discuss [its] decision or even
exhibit the records, we are left to wonder how the Appeals Council
came to [its] decision.”

(Id. at 4-5 (citing Radford v. Colvin,

734 F.3d 288, 295 (4th Cir. 2013)).)

Plaintiff’s contentions do

not warrant relief.
The regulatory provisions governing the Appeals Council’s
consideration of new evidence, 20 C.F.R. §§ 404.970, 416.1470,
changed in 2017. The prior version of those regulations, in effect
until January 16, 2017, provided as follows:
If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where
it relates to the period on or before the date of the
[ALJ] hearing decision.
The Appeals Council shall
evaluate the entire record including the new and material
evidence submitted if it relates to the period on or
before the date of the [ALJ] hearing decision. It will
then review the case if it finds that the [ALJ’s] action,
findings, or conclusion is contrary to the weight of the
evidence currently of record.
20 C.F.R. §§ 404.970(b), 416.1470(b) (1987).
The new versions, effective January 17, 2017, with compliance
by

claimants

Uniformity

at

required
the

by

Hearing

May

1,

and

2017,

Appeals

see

Ensuring

Council

Levels

Program
of

the

Administrative Review Process, 81 Fed. Reg. 90987-01, 90987, 2016
WL 7242991 (Dec. 16, 2016), provide as follows:
(a) The Appeals Council will review a case if—
9

. . .
(5) Subject to paragraph (b) of this section, the Appeals
Council receives additional evidence that is new,
material, and relates to the period on or before the date
of the hearing decision, and there is a reasonable
probability that the additional evidence would change the
outcome of the decision.
(b) The Appeals Council will only consider additional
evidence under paragraph (a)(5) of this section if you
show good cause for not informing us about or submitting
the evidence as described in § 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational,
or linguistic limitation(s) that prevented you
from informing us about or submitting the
evidence earlier; or
(3) Some other unusual, unexpected, or
unavoidable circumstance beyond your control
prevented you from informing us about or
submitting the evidence earlier.
20 C.F.R. §§ 404.970, 416.1470 (2017).6

Thus, the new regulations

6

In conjunction with the above-described regulatory change, the SSA amended its
internal procedures manual to clarify when evidence submitted to the Appeals
Council qualifies as new, material, and related to the period on or before the
ALJ’s decision. See Hearings, Appeals, and Litigation Law Manual (“HALLEX”),
§
I-3-3-6B.2
(“Additional
Evidence”)
(May
1,
2017),
available
at
https://www.ssa.gov/OP_home/hallex/I-03/I-3-3-6.html. According to the HALLEX,
evidence submitted to the Appeals Council is:
C

“new if it is not part of the [administrative record] as of
the date of the [ALJ’s] decision”;

C

“material if it is relevant, i.e., involves or is directly
related to issues adjudicated by the ALJ”; and

C

“relate[d] to the period on or before the date of the hearing
decision if the evidence is dated on or before the date of the
hearing decision, or . . . post-dates the hearing decision but
is reasonably related to the time period adjudicated in the
hearing decision.”

HALLEX, § I-3-3-6B.2.

10

add two requirements to a claimant’s burden to have new evidence
considered by the Appeals Council in connection with a request for
review: (1) a requirement that a claimant demonstrate good cause
for the failure to submit the evidence in question at least five
days prior to the ALJ’s decision pursuant to 20 C.F.R. §§ 404.953,
416.1453; and (2) a requirement to show a reasonable probability of
a different outcome.7
Plaintiff’s counsel requested review with the Appeals Council
on February 17, 2017 (Tr. 195-96, 306), and provided the new
evidence in question to the Appeals Council (see Tr. 306, 617-61).
On March 24, 2017, the Appeals Council provided Plaintiff with
advanced notice of the regulatory change and an opportunity to
submit additional evidence and argument directed at demonstrating
a reasonable probability of a different outcome.

(See Tr. 9-10.)

In that notice, the Appeals Council expressly recognized that
Plaintiff could not retroactively comply with the new requirement
that, absent good cause, claimants must submit evidence at least
five days before the ALJ’s hearing, and waived the requirement that
Plaintiff demonstrate good cause.

7

(See Tr. 10.)

The record does

Long-standing Fourth Circuit law defined “material” as a reasonable possibility
the new evidence would have changed the outcome of the case.
See Meyer v.
Astrue, 662 F.3d 700, 704 (4th Cir. 2011); Wilkins v. Secretary, Dep’t of Health
& Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Thus, the new versions of
Sections 404.970 and 416.1470 increase a claimant’s burden from showing a
reasonable possibility to a reasonable probability, and make the obligation to
show a reasonable probability of a different outcome an additional requirement
to showing materiality.

11

not

reflect

that

Plaintiff

submitted

additional

argument

or

evidence after that notice.
The Appeals Council denied Plaintiff’s request for review on
September 23, 2017, remarking as follows:
[Plaintiff] submitted a letter from Christopher Connelly,
M.D. dated January 3, 2017 (1 page); a medical opinion
from Christopher Connelly dated March 10, 2017 (3 pages);
hospital records from Steve Gaskin, M.D. dated October 7,
2016 (5 pages); progress notes from Daymark Recovery
Services dated November 2, 2016 (2 pages); hospital
records from CHS Harrisburg Health Pavilion dated October
15, 2016 through October 16, 2016 (18 pages); hospital
records from CHS Neurosciences Institute Northeast dated
October 21, 2016 (20 pages); and a notice of denial from
Cabarrus County DSS dated October 21, 2016 (1 page). We
find this evidence does not show a reasonable probability
that it would change the outcome of the decision. We did
not consider and exhibit this evidence.
(Tr. 2 (emphasis added).)
Appeals

Council

exhibited

Consistent with that statement, the
Plaintiff’s

request

for

review

and

supporting brief, but did not incorporate the new evidence into the
administrative record (see Tr. 5, 6), and further advised Plaintiff
that, “[i]f [she] want[ed the Commissioner] to consider whether
[Plaintiff] w[as] disabled after December 21, 2016, [she] need[ed]
to apply [for benefits] again” (Tr. 2).
Significantly, Plaintiff does not argue that her new evidence
qualifies as new, material, and related to the time period on or
before the ALJ’s decision, that it raises a reasonable probability
of a different outcome, or that the Appeals Council erred by
finding

the

probability.

new

evidence

failed

to

raise

(See Docket Entry 13 at 3-5.)
12

such

a

reasonably

Rather, Plaintiff

maintains that the Appeals Council erred by making its reasonable
probability finding without first “considering” the new evidence.
(See id. at 4-5; see also id. at 4 (“[I]f the Appeals Council did
not consider [Plaintiff’s] new evidence, how d[id] [it] know that
[the new evidence] does not show a reasonable probability that it
would change the outcome of the decision?” (emphasis added)).)
Plaintiff’s

argument

fails

because

it

relies

on

an

unreasonable interpretation of the Appeals Council’s statement that
it “did not consider and exhibit” Plaintiff’s new evidence (Tr. 2
(emphasis added)).

According to Plaintiff’s interpretation, the

Appeals Council’s statement means that it did not take into account
in any fashion the substance of Plaintiff’s new evidence before
finding it failed to raise a reasonable probability of a different
outcome.

(See

interpretation
Council’s

Docket

does

procedures

not

Entry

13

make

sense

regarding

at

3-5.)

in

requests

light
for

However,
of

that

the

Appeals

review.

Those

procedures require the Appeals Council to “evaluate the entire
record along with the additional evidence to determine whether
there is a reasonable probability that the additional evidence will
change

the

outcome

of

the

decision.”

HALLEX

§

I-3-3-6B.3.

Furthermore, those procedures make clear that the Appeals Council’s
statement that it “did not consider” Plaintiff’s new evidence (Tr.
2) meant that the Appeals Council did not consider that evidence as
a basis for granting Plaintiff’s request for review:

13

Generally, the [Appeals Council] will only consider
evidence as a basis for granting review if the claimant
meets one of the good cause exceptions . . .; the
additional evidence is new, material, and relates to the
period on or before the date of the hearing decision; and
there is a reasonable probability that the additional
evidence will change the outcome of the decision.
HALLEX § I-3-3-6B (emphasis added).

Here, the Appeals Council

included a detailed list of all of Plaintiff’s new evidence,
indicated

that

it

did

not

find

that

such

evidence

raised

a

reasonable probability of a different outcome (which signals that
the

Appeals

Council

evaluated

the

entire

record

along

with

Plaintiff’s new evidence), did not consider that evidence as a
basis for granting review, and declined to exhibit that evidence.
(See Tr. 2.)

Plaintiff has thus not shown that the Appeals Council

failed to comply with its own regulations and policies in denying
Plaintiff’s request for review.
In sum, Plaintiff’s first assignment of error fails as a
matter of law.
2. Listing 12.07
In Plaintiff’s second and final issue on review, she asserts
that “[t]he ALJ’s failure to address whether [Plaintiff] meets
Listing 12.07 warrants reversal or remand.”
(bold font and single-spacing omitted).)

(Docket Entry 13 at 5

In particular, Plaintiff

contends that, despite the ALJ’s finding that Plaintiff suffered
from severe pseudoseizures (see Tr. 25), “[t]he ALJ failed to
address . . . whether [Plaintiff] met Listing 12.07 for ‘Somatoform

14

Disorders,’ despite a ‘fair amount of evidence’ that suggested she
met the Listing” (Docket Entry 13 at 6 (quoting Radford, 734 F.3d
at 295)). According to Plaintiff, “[t]here is no evidence that the
ALJ considered Listing 12.07 at all,” and Plaintiff’s “‘medical
record is not so one-sided that one could clearly decide, without
analysis,’ that Listing 12.07 was not implicated.”

(Id. at 8

(quoting Brown v. Colvin, 639 F. App’x 921, 923 (4th Cir. 2016).)
Further, Plaintiff contends that, “[t]hough the ALJ considered the
‘paragraph
disorder,

B’

criteria

depressive

in

evaluating

disorder,

[Plaintiff’s]

post-traumatic

conversion

stress

disorder

[(‘PTSD’)] and anxiety, this [C]ourt is left to wonder whether the
ALJ took [Plaintiff’s] pseudoseizures into account, an omission
which precludes ‘meaningful review.’” (Id. (referencing Tr. 26)
(quoting Fox v. Colvin, 632 F. App’x 750, 755 (4th Cir. 2015)).)
Those assertions lack merit.
“Under Step 3, the [SSA’s SEP] regulation states that a
claimant will be found disabled if he or she has an impairment that
‘meets or equals one of [the] listings in [A]ppendix 1 of [20
C.F.R. Pt. 404, Subpt. P] and meets the duration requirement.’”
Radford, 734 F.3d at 293 (quoting 20 C.F.R. § 404.1520(a)(4)(iii))
(internal bracketed numbers omitted).

“The listings set out at 20

CFR [P]t. 404, [S]ubpt. P, App[’x] 1, are descriptions of various
physical and mental illnesses and abnormalities, most of which are
categorized by the body system they affect.

15

Each impairment is

defined in terms of several specific medical signs, symptoms, or
laboratory test results.” Sullivan v. Zebley, 493 U.S. 521, 529-30
(1990) (internal footnote and parentheticals omitted).

“In order

to satisfy a listing and qualify for benefits, a person must meet
all of the medical criteria in a particular listing.” Bennett, 917
F.2d at 160 (citing Zebley, 493

U.S. at 530, and 20 C.F.R.

§ 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment
that manifests only some of th[e] criteria [in a listing], no
matter how severely, does not qualify.”).
An ALJ must identify the relevant listed impairments and
compare them to a claimant’s symptoms only where “there is ample
evidence

in

claimant’s

the

record

impairment]

to

met

support
or

a

determination

equalled

[sic]

impairments listed in Appendix 1 . . . .”

one

that

[a

the

[]

of

Cook v. Heckler, 783

F.2d 1168, 1172 (4th Cir. 1986) (emphasis added); see also Russell
v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL 417576, at *3
(4th Cir. July 7, 1995) (unpublished) (“Cook . . . does not
establish an inflexible rule requiring an exhaustive point-by-point
discussion [of listings] in all cases.”); Ollice v. Colvin, No.
1:15CV927,

2016

(unpublished)

WL

7046807,

(Peake,

M.J.)

at

*3

(“[A]n

(M.D.N.C.
ALJ

is

Dec.

not

2,

2016)

required

to

explicitly identify and discuss every possible listing; however, he
must

provide

sufficient

explanation

and

analysis

to

allow

meaningful judicial review of his step three determination where

16

the ‘medical record includes a fair amount of evidence’ that a
claimant’s impairment meets a disability listing.” (emphasis added)
(quoting Radford, 734 F.3d at 295)), recommendation adopted, slip
op. (M.D.N.C. Jan. 10, 2017) (Osteen, Jr., C.J.).
Here, as Plaintiff argues (see Docket Entry 13 at 8), the ALJ
did not specifically mention Listing 12.07 (or any other listings)
in his step three finding:
[Plaintiff] does not have an impairment or combination of
impairments that meets or medically equals the severity
of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
In reaching this conclusion, the [ALJ] has reviewed
[Plaintiff’s]
impairments
using
the
Listing
of
Impairments contained in 20 CFR Part 404, Appendix 1 to
Subpart P.
The current evidence, however, fails to
establish an impairment that is accompanied by signs that
are reflective of listing-level severity. Also, none of
[Plaintiff’s] treating or examining physicians of record
has reported any of the necessary clinical, laboratory,
or radiographic findings specified therein.
(Tr. 27 (bold font and internal citations omitted).)

However, the

ALJ had already considered whether any of Plaintiff’s mental
impairments met a listing at step two of the SEP, in connection
with the ALJ’s determination of whether Plaintiff suffered from any
severe impairments:
[Plaintiff’s] medically determinable mental impairments
of conversion disorder, depressive disorder, [PTSD] and
anxiety, considered singly and in combination, do not
cause more than minimal limitation in [Plaintiff’s]
ability to perform basic mental work activities and are
therefore nonsevere.
In making this finding, the [ALJ] has considered the four
broad areas set out in the disability regulations for
17

evaluating mental disorders and in section 12.00C of the
Listing of Impairments.
These four broad functional
areas are known as the ‘paragraph B’ criteria.
(Tr. 26 (emphasis added).)
The ALJ’s above quoted step two analysis did not mention any
specific listings that corresponded with Plaintiff’s conversion
disorder, depressive disorder, PTSD, and anxiety.
the applicable
Listing

12.06

listings
(Anxiety

(Listing
Related

12.04

(Id.)

(Affective

Disorders),

and

However,

Disorders),

Listing

12.07

(Somatoform Disorders)) all contain the same paragraph B criteria,
see 20 C.F.R., Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.06B,
12.07B, and thus the ALJ appears to have given Plaintiff the
benefit

of

the

doubt

and

assumed

that

Plaintiff’s

mental

impairments met the paragraph A criteria of their respective
listings

and

(see Tr. 26).8

proceeded

to

evaluate

the

paragraph

B

criteria

Accordingly, Plaintiff’s argument ultimately turns

on whether substantial evidence supported the ALJ’s analysis of the
paragraph B criteria.
In order to meet the paragraph B criteria of the applicable
listings,

Plaintiff

must

show

that

her

mental

impairments

“[r]esult[] in at least two of the following: [m]arked restriction

8

As relevant to this case, paragraph A of Listing 12.07 requires evidence of
“[p]hysical symptoms for which there are no demonstrable organic findings or
known physiological mechanisms” and medical documentation of “[p]ersistent
nonorganic disturbance of one of the following: [v]ision; or [s]peech; or
[h]earing; or [u]se of a limb; or [m]ovement and its control (e.g., coordination
disturbance, psychogenic seizures, akinesia, dyskinesia[)]; or [s]ensation (e.g.,
diminished or heightened).” 20 C.F.R., Pt. 404, Subpt. P, App’x 1, § 12.07A
(emphasis added) (subsection lettering omitted).

18

in

activities

maintaining

of

social

daily

living;

functioning;

or

[m]arked

difficulties

in

or

[m]arked

difficulties

in

maintaining concentration, persistence, or pace; or [r]epeated
episodes of decompensation, each of extended duration.”

See 20

C.F.R., Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.06B, 12.07B
(emphasis added) (subsection lettering omitted). The ALJ evaluated
the paragraph B criteria as follows:
The first functional area is activities of daily living.
In
this
area,
[Plaintiff]
has
mild
limitation.
[Plaintiff] reports difficulty driving and that someone
has to be around her, but she relates this primarily to
her pseudoseizures. [Plaintiff] states that she has some
stress in her life but she thinks she manages it well.
She has even reported being able to handle her activities
of daily living without assistance. Given such evidence,
[Plaintiff] is only mildly limited in this functional
area.
The next functional area is social functioning. In this
area, [Plaintiff] has mild limitation. [Plaintiff] has
reported residual symptoms from her past abusive
relationship, but did not report difficulty getting along
with others. While she testified to difficulty getting
along with others, her demeanor has been average, she has
had good eye contact, and has had mood that was euthymic
and within normal limits.
Given such evidence,
[Plaintiff] has no more than mild limitations in this
functional area.
The third functional area is concentration, persistence
or pace. In this area, [Plaintiff] has mild limitation.
[Plaintiff]
reports
difficulty
remembering,
concentrating, understanding, and completing tasks. Yet
on examination she has had logical thought process and no
impairment of memory or orientation. Even when she has
raised her purported memory issues, her provider noted
that her memory and cognition appeared grossly intact.
[Plaintiff] reported being able to handle her own
financial matters as a strength, suggesting more
functional ability in this area than alleged. Given the

19

evidence of record, [Plaintiff] is only mildly limited in
this functional area.
The fourth functional area is episodes of decompensation.
In this area, [Plaintiff] has experienced no episodes of
decompensation which have been of extended duration.
. . .
Although [Plaintiff] alleges that mental impairments
cause significant functional limitations, she has
reported riding motorcycles with her boyfriend, regularly
visiting her grandchildren, being able to handle
activities of daily living without assistance, having a
strength in handling her own financial matters, enjoying
time with her family, and managing stress well. This
evidence suggests that [Plaintiff’s] mental impairments
are well managed with treatment and that they do not
cause significant work-related limitations.
The
relatively unremarkable mental status examinations also
undermine [Plaintiff’s] allegations of significant
work-related limitations due to her mental impairments.
Although [Plaintiff] testified she does not like being
around
other
people,
she
has
consistently
had
unremarkable
symptoms
on
mental
examination.
Furthermore, she testified that she carries a firearm
with her in case she needs it, suggesting that she
retains sufficient concentration, persistence, or pace to
use a firearm. This suggests greater functional ability
than she alleges.
(Tr. 26-27 (internal citations omitted).)
As

noted

above,

Plaintiff

acknowledges

that

“the

ALJ

considered the ‘paragraph B’ criteria in evaluating [Plaintiff’s]
conversion

disorder,

depressive

disorder,

[PTSD]

and

anxiety”

(Docket Entry 13 at 8), but argues that “the ALJ failed to address
how [Plaintiff’s] pseudoseizures affected these broad functional
areas

or

whether,

given

her

pseudoseizures,

[Plaintiff’s]

‘paragraph B’ criteria would have been rated differently” (id. at
8 n.2).

In that regard, Plaintiff notes that, despite the ALJ’s
20

finding of mild limitation in daily activities, “the ALJ fail[ed]
to address that [Plaintiff] has not driven since 2014 due to a
seizure, a restriction that also affects her ability to accomplish
activities

of

daily

living”

(id.

(citing

Tr.

49))

and

that

Plaintiff “also reported to clinicians at Daymark in 2016 that she
is unable to shower by herself and will not stay home by herself
because of her seizures” (id. (citing Tr. 586)).
Two aspects of the ALJ’s decision lend credence to Plaintiff’s
argument that the ALJ did not consider Plaintiff’s pseudoseizures
in his evaluation of the paragraph B criteria.

First, the ALJ

found Plaintiff’s pseudoseizures a severe impairment at step two,
but Plaintiff’s other mental impairments non-severe, and did not
include pseudoseizures in the list of impairments he analyzed under
the paragraph B criteria.

(See Tr. 26.)

Second, in assessing

Plaintiff’s ability to engage in daily activities, the ALJ stated
that “[Plaintiff] reports difficulty driving and that someone has
to

be

around

her,

but

she

relates

this

primarily

to

her

pseudoseizures” (id. (emphasis added)), indicating that the ALJ
discounted the effect of Plaintiff’s pseudoseizures on her ability
to

engage

evaluating

in

daily

activities.

Plaintiff’s

As

pseudoseizures

such,

the

as

strictly

a

ALJ

erred

by

physical

impairment, rather than as a psychiatric somatoform disorder with
physical manifestations. See Rose v. Berryhill, No. 2:16-CV-12369,
2017 WL 6506465, at *10 (S.D.W. Va. Sept. 18, 2017) (unpublished)

21

(“Had the ALJ considered [the c]laimant’s seizures through the lens
of a somatoform disorder [under Listing 12.07], the ALJ may have
reevaluated the severity of [the c]laimant’s deficits under the
paragraph B criteria.” (emphasis added)), recommendation adopted,
2017 WL 6503640 (S.D.W. Va. Dec. 19, 2017) (unpublished).
However, the ALJ’s error in failing to analyze Plaintiff’s
pseudoseizures under Listing 12.07 remains harmless under the
circumstances presented here.

See generally Fisher v. Bowen, 869

F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of
administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result”).

Although Plaintiff

attacks the ALJ’s finding of mild limitation in Plaintiff’s ability
to perform daily activities by pointing to her own testimony that
she had not driven a car since 2014 due to her seizures (Docket
Entry 13 at 8 n.2 (citing Tr. 26, 49)), the ALJ expressly found
that Plaintiff continued to ride motorcycles with her boyfriend and
drove herself to the hospital in 2016 (see Tr. 26, 29; see also Tr.
569, 602).

Plaintiff also emphasizes her reports on August 23,

2016, to clinicians at Daymark Recovery Services that she feared
showering alone or staying at home by herself (see Docket Entry 13
at 8 n.2 (citing Tr. 586)), but the ALJ found that Plaintiff had
also reported to Daymark “being able to handle activities of daily
living without assistance” (Tr. 26; see also Tr. 576).

22

Moreover,

Plaintiff’s arguments rely exclusively on her own statements, but
the ALJ found Plaintiff’s statements not entirely consistent with
the evidence of record (see Tr. 28), and Plaintiff does not attack
the ALJ’s assessment of her subjective symptom reporting (see
Docket Entry 13).

In other words, her “argument [wa]s based upon

accepting her allegations as to the frequency and severity of her
seizure activity as fully credible, which the ALJ declined to do.”
Bowden v. Commissioner of Soc. Sec., No. 97-1629, 173 F.3d 854
(table),

1999

WL

98378,

at

*8

(6th

Cir.

Jan.

29,

1999)

(unpublished).
Furthermore, Plaintiff has raised no arguments concerning the
ALJ’s findings with respect to social functioning, concentration,
persistence,

or

pace,

or

episodes

of

decompensation,

neither

disputing the ALJ’s characterization of the evidence he relied upon
in analyzing those areas of function, nor explaining how other
evidence specifically would undermine the ALJ’s findings.
Docket Entry 13 at 5-11.)

That failure precludes relief.

(See
See

Norwood v. Astrue, No. 3:11-CV-398, 2012 WL 4450887, at *7 (E.D.
Tenn. Aug. 31, 2012) (unpublished) (finding that ALJ erred by not
specifically

addressing

Listing

12.07

with

respect

to

the

plaintiff’s pseudoseizures, but deeming error “harmless” where
“[t]he ALJ found that the Plaintiff did not me[e]t the ‘B’ criteria
contained in Listing[s] 12.06 and 12.04 . . . [and t]he [p]laintiff
ha[d] not directed the [c]ourt to any evidence that would undermine

23

the findings the ALJ made with regard to the ‘B’ criteria”),
recommendation adopted, 2012 WL 4442667 (E.D. Tenn. Sept. 25, 2012)
(unpublished); Walkingstick v. Astrue, No. 10-CV-713-FHM, 2012 WL
966505, at *2 (N.D. Okla. Mar. 21, 2012) (unpublished) (finding the
plaintiff’s argument “correct that the ALJ did not perform an
analysis

of

[the

p]laintiff’s

seizure

disorder

as

a

mental

impairment” under Listing 12.07, but declining remand where the
“[p]laintiff’s argument . . . d[id] not contain any references to
the record that demonstrate[d] the likelihood of a different
outcome”).
Ultimately, Plaintiff bears the burden of proving that her
impairments meet or medically equal a listing, see Kellough v.
Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986), and, on judicial
review, it does not suffice to provide “ample evidence” that a
particular listing applies; rather, Plaintiff must show “ample
evidence” that her condition meets that listing, Cook, 783 F.2d at
1172.

Plaintiff here has not established grounds for reversal or

remand, because the evidence upon which she relies shows neither
that “ample evidence” existed that her impairment met or equaled
Listing 12.07, Cook, 783 F.2d at 1172, nor that remand for an
express discussion of Listing 12.07 by the ALJ would lead to a
different outcome in her case, Fisher, 869 F.2d at 1057 (observing
that “[n]o principle of administrative law or common sense requires
us to remand a case in quest of a perfect opinion unless there is

24

reason to believe that the remand might lead to a different
result”).
III.

CONCLUSION

Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary

Judgment

Reversing

or

Remanding

for

Rehearing

the

Commissioner’s Final Administrative Decision (Docket Entry 11) be
denied, that Defendant’s Motion for Judgment on the Pleadings
(Docket Entry 17) be granted, and that this action be dismissed
with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 26, 2019

25