Venable v. Kijakazi
Filing
26
MEMORANDUM OPINION. Signed by Magistrate Judge Elizabeth W. Hanes on 9/17/2021. (adun, )
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 1 of 18 PageID# 121
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JAMIE L. V., 1
Plaintiff,
v.
Civil No. 3:20cv263 (REP-EWH)
KILOLO KIJAKAZI, 2
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying the application of Jamie L. V. (“Plaintiff”) for disability insurance
benefits and supplemental security income under the Social Security Act. Plaintiff, thirty-five
years old at the time of her benefits application, previously worked as a cashier and store manager.
(R. at 26, 225-232, 852.) Plaintiff suffers from lupus erythematosus, sarcoidosis, obesity, bipolar
disorder, obsessive compulsive disorder, and attention deficit disorder without hyperactivity. (R.
at 843.)
On February 4, 2020, an Administrative Law Judge (“ALJ”) denied Plaintiff’s application
for benefits. (R. at 840–54.) Plaintiff now seeks judicial review of the ALJ’s decision, asserting
that the ALJ erred in assessing Plaintiff’s asserted blackouts, which Plaintiff described as a period
of time in which she “star[es] off” or “look[s] like a zombie.” (R. at 52–53.) Specifically, Plaintiff
argues that the ALJ erred in (1) failing to obtain an updated medical opinion regarding Plaintiff’s
1
The Committee on Court Administration and Case Management of the Judicial Conference
of the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to claimants only by their first names and last initials.
2
On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), Acting Commissioner Kilolo Kijakazi should
be substituted for former Commissioner Andrew M. Saul as the defendant in this matter.
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 2 of 18 PageID# 122
asserted blackouts, resulting in a residual functional capacity that is unsupported by substantial
evidence; and (2) determining that such blackouts were not a “medically determinable” or severe
impairment at step two of the sequential evaluation process. (Pl.’s Opening Br. 10–15, ECF No.
19 (“Pl.’s Mem.”).)
This matter is before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1)
on the parties’ cross-motions for summary judgment, rendering the matter ripe for review. 3 For
the reasons that follow, the Court DENIES Plaintiff’s Motion for Summary Judgment (ECF No.
18), GRANTS Defendant’s Motion for Summary Judgment (ECF No. 20), and AFFIRMS the final
decision of the Commissioner.
I. PROCEDURAL HISTORY
On September 14, 2014, Plaintiff filed applications for disability insurance benefits and
supplemental security income, with an alleged disability onset date of June 28, 2014. (R. at 71,
99–100, 135–36.) The Social Security Administration denied Plaintiff’s claim initially on April
28, 2015, and again upon reconsideration on October 5, 2015. (R. at 99–100, 135–36.)
An ALJ held a hearing on May 12, 2017, where Plaintiff and a vocational expert testified.
(R. at 34–67.) Of note, Plaintiff testified that she started suffering from blackouts in summer 2016,
and that her neurologist said she was having “mini-blackouts throughout the day.” (R. at 52.)
Plaintiff testified that she was prescribed a seizure-preventative drug to treat the blackouts, and the
drug reduced her blackouts to about one or two a week. (R. at 51–52.) She stated that she is not
3
The administrative record in this case remains filed under seal, pursuant to E.D. Va. Loc.
R. 5 and 7(C). In accordance with these Rules, the Court will endeavor to exclude any personal
identifiers such as Plaintiff’s social security number, the names of any minor children, dates of
birth (except for year of birth), and any financial account numbers from its consideration of
Plaintiff’s arguments, and will further restrict its discussion of Plaintiff’s medical information to
only the extent necessary to properly analyze the case.
2
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 3 of 18 PageID# 123
aware of the blackouts, but her children have told her that she tenses up, her eyes widen, and she
“look[s] like a zombie.” (R. at 52–53.) She testified that her “eyes are open, but . . . [she’s] not
responding” and that she “just star[es] off.” (R. at 52-53.)
The ALJ issued an initial decision on October 30, 2017, finding Plaintiff not disabled. (R.
at 16–33.) The ALJ did not mention Plaintiff’s asserted blackouts in the decision. (R. at 16–33.)
The Appeals Council subsequently denied Plaintiff’s request for review of the ALJ’s decision on
May 2, 2018. (R. at 1–6.) Plaintiff appealed the denial to this Court, arguing that the ALJ erred in
failing to hold that her impairments were medically equivalent to Listing 14.02, finding that her
statements regarding her symptoms were inconsistent with the evidence, affording improper
weight to certain medical opinions, and relying on an incomplete hypothetical at step five. (R. at
885–87, 893–94.)
This Court remanded the case to the Commissioner via a memorandum opinion entered on
June 6, 2019. (R. at 893–927); see also Jamie L. V. v. Berryhill, No. 3:18cv458, 2019 WL 2397253
(E.D. Va. June 6, 2019). This Court found that the ALJ did not err in finding that Plaintiff’s
impairments did not equal Listing 14.02. (R. at 899.) However, this Court held that the ALJ failed
to adequately explain why Plaintiff’s statements regarding her symptoms were inconsistent with
the evidence. (R. at 911-17.) Specifically, this Court noted the ALJ failed to explain why Plaintiff’s
non-compliance with some prescription medications undermined her subjective complaints of
pain, given that Plaintiff had potentially legitimate reasons for refusing such medications. (R. at
914–16.) In addition, this Court noted that the ALJ did not fully explain how Plaintiff’s ability to
exercise undermined her complaints of pain and other symptoms. (R. at 916.) Finally, this Court
found that the ALJ failed to explain the weight given to state agency consultant opinions because
3
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 4 of 18 PageID# 124
the ALJ summarily refused to give weight to certain opinions without identifying their
inconsistencies with the record. (R. at 917, 925–26.)
On remand, a different ALJ held a second hearing on December 9, 2019. (R. at 860–77.)
At the hearing, the ALJ and counsel for Plaintiff had the following exchange:
ALJ: Is the record complete?
ATTY: No, Your Honor. . . . We’re still waiting on records from Dr.
[Alfred] Boulware [], who’s her family practitioner, but he’s basically treating her
for pretty much everything. My understanding is she’s been seeing him
approximately every three and a half weeks since May 2017. My understanding is
those records are, are – the only thing new in terms of a diagnosis [sic] is going to
show that she was diagnosed with the fibromyalgia on top of the lupus and the
sarcoidosis.
Additionally, there are some additional records from Spotsylvania Medical
Center. . . . So, those are the records I’m still waiting on.
(R. at 863–64 (emphasis added).) The ALJ agreed to keep the administrative record open for thirty
days following the hearing for submission of those additional records. (R. at 841, 865.) Plaintiff
subsequently testified regarding her symptoms and limitations, but she did not mention her
blackouts. (R. at 865–74.)
On December 11, 2019, Plaintiff submitted additional medical evidence from Spotsylvania
Regional Medical Center into the record. (R. at 953–59.)
On February 4, 2020, the ALJ issued a written decision accepting the newly-admitted
medical evidence but finding Plaintiff not disabled. (R. at 840–54.) Plaintiff did not file written
exceptions to the ALJ’s decision, and the Appeals Council did not assume jurisdiction (Pl.’s Mem.
at 2), which rendered the ALJ’s decision as the final decision of the Commissioner. Plaintiff now
seeks judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
4
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 5 of 18 PageID# 125
II. THE ALJ’S DECISION
The ALJ’s written opinion on February 4, 2020 concluded that Plaintiff did not qualify as
disabled and denied her benefits. (R. at 840–54.) The ALJ followed the five-step evaluation
process established by the Social Security Act to determine whether a disability exists. (R. at 41–
53); see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Mascio v. Colvin, 780 F.3d 632, 634–35 (4th
Cir. 2015) (describing the five-step sequential evaluation).
According to those regulations, at step one, the ALJ looks at the claimant’s current work
activity. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the ALJ asks whether the claimant’s
medical
impairments
meet
the
regulations’
severity
and
duration
requirements.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, the ALJ determines whether the claimant’s
medical impairments meet or equal an impairment in the Listings.4 §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii); see Pt. 404, Subpt. P, App. 1. Between steps three and four, the ALJ must assess
the claimant’s residual functional capacity, accounting for the most that the claimant can do despite
her physical and mental limitations. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a). At
step four, the ALJ assesses whether the claimant can perform her past work given her residual
functional capacity. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, at step five, the ALJ
determines whether the claimant can perform any work existing in the national economy.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
In the instant case, at step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since June 28, 2014, which is the alleged onset date of her impairments.
(R. at 843.)
4
The Listings are a regulatory appendix of “the major body systems impairments that [the
Social Security Administration] consider[s] to be severe enough to prevent an individual from
doing any gainful activity.” §§ 404.1525(a), 416.925(a).
5
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 6 of 18 PageID# 126
At step two, the ALJ concluded that Plaintiff suffers from lupus erythematosus, sarcoidosis,
obesity, bipolar disorder, obsessive compulsive disorder, and attention deficit disorder without
hyperactivity, which all significantly limit Plaintiff’s ability to perform basic work activities. (R.
at 843.) Relevant to the present appeal, the ALJ noted Plaintiff’s August 2016 appointment with a
neurologist where she complained of frequent blackouts and her testimony at the May 2017
hearing that she was experiencing one to two blackouts per week. (R. at 844.) The ALJ concluded,
however, that Plaintiff’s blackouts were not medically determinable. (R. at 844.) The ALJ reasoned
that the August 2016 neurological examination was “unremarkable” and a brain MRI a month later
was normal. (R. at 844.) The ALJ further explained that, despite Plaintiff’s testimony about
experiencing blackouts, “there is no evidence of this in the record,” “her blackout spells have not
been observed, and there are no objective findings showing the presence of any type of impairment
that could cause these.” (R. at 844.)
At step three, the ALJ determined that none of Plaintiff’s impairments, individually or in
combination, met or equaled a disability listing in the Listings. (R. at 844.) Specifically, the ALJ
held that Plaintiff’s impairments did not meet or equal Listings 14.02 (systemic lupus
erythematosus), 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessivecompulsive disorder), and 12.11 (neurodevelopmental disorders). (R. at 844–45.)
After step three, the ALJ determined that Plaintiff has the residual functional capacity to
perform sedentary work with the following nonexertional limitations:
[S]he can occasionally climb ramps and stairs, balance, stoop, kneel, and crouch.
She cannot crawl or climb ladders, ropes, or scaffolds. She can frequently handle
and finger with the bilateral upper extremities. She cannot tolerate exposure to
temperature extremes or hazards. She can understand, remember, and carry out
simple instructions and make simple work-related decisions. She can work at a
consistent pace throughout the workday, but not at a production rate pace where
tasks must be performed quickly, such as that found on an assembly line or
conveyor belt. She can tolerate occasional changes in the work setting.
6
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 7 of 18 PageID# 127
(R. at 846.)
In rendering this residual functional capacity determination, the ALJ relied on Plaintiff’s
testimony at the May 2017 and December 2019 hearings, medical records from August 2011 to
May 2017, and several medical opinions, including a May 2017 opinion from Maria Rivera, M.D.
(R. at 847–52.) Dr. Rivera’s opinion—which was a response to medical interrogatories—asserted
that “blackout spells” constituted one of Plaintiff’s medical impairments. (R. at 833.) The ALJ
concluded, however, that the evidence in the record did not support the presence of blackouts. (R.
at 851.)
At step four, the ALJ concluded that Plaintiff is unable to perform her past relevant work
as a cashier. (R. at 852.)
At step five, the ALJ held that there were jobs that existed in significant numbers in the
national economy for Plaintiff to perform. (R. at 852.) The ALJ agreed with the vocational expert’s
testimony that, despite Plaintiff’s residual functional capacity limitations, Plaintiff could perform
jobs that existed in significant numbers in the national economy, such as addresser, call out
operator, and charge account clerk. (R. at 853.) The ALJ therefore concluded that the Plaintiff was
not disabled. (R. at 853.)
III. STANDARD OF REVIEW
This Court upholds an ALJ’s Social Security disability determination if “(1) the ALJ
applied the correct legal standards and (2) substantial evidence supports the ALJ’s factual
findings.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020) (citing 42 U.S.C.
§ 405(g) and Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). “Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.” Pearson, 810 F.3d at
207 (internal quotation marks omitted). Substantial evidence thus requires more than a scintilla of
7
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 8 of 18 PageID# 128
evidence, but less than a preponderance of the evidence. Hancock v. Astrue, 667 F.3d 470, 472
(4th Cir. 2012). Between these two evidentiary thresholds lies a “zone of choice” where the ALJ’s
decision can go either way without interference by the courts. See Dunn v. Colvin, 607 F. App’x.
264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272–73 (8th Cir. 1988)). “‘In
reviewing for substantial evidence, we do not undertake to re-weigh conflicting evidence, make
credibility determinations, or substitute our judgment’ for the ALJ’s.” Arakas, 983 F.3d at 95
(quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)).
IV. ANALYSIS
Plaintiff advances two narrow arguments. First, Plaintiff argues that the ALJ failed to
obtain an updated medical opinion regarding Plaintiff’s asserted blackouts and that such failure
resulted in a residual functional capacity that is unsupported by substantial evidence. (Pl.’s Mem.
at 10–12.) Second, Plaintiff argues the ALJ erred at step two in concluding that Plaintiff’s asserted
blackouts were not a “medically determinable” or severe impairment. (Pl.’s Mem. at 12–14.)
For the reasons stated below, this Court finds that the ALJ did not err in denying Plaintiff’s
application for benefits. Specifically, the ALJ did not violate his duty to develop the factual record
by failing to obtain an updated medical opinion because Plaintiff did not inform the ALJ of the
need for such updated opinion. The ALJ also did not err at step two because he properly concluded
that Plaintiff’s blackouts were not a “medically determinable” impairment. This Court addresses
each of Plaintiff’s two arguments in turn.
A. The ALJ Was Not Required to Obtain an Updated Medical Opinion.
Plaintiff argues that substantial evidence does not support the ALJ’s opinion denying her
benefits because the ALJ failed to obtain an updated medical opinion regarding Plaintiff’s
blackouts. (Pl.’s Mem. at 12.) Plaintiff contends that the ALJ had the duty to obtain an updated
8
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 9 of 18 PageID# 129
medical opinion because the most recent medical opinion in the record was rendered in 2015,
which was before both the onset of Plaintiff’s blackouts in 2016 and the ALJ’s decision in 2020.
(Pl.’s Mem. at 11–12.) Plaintiff asserts: “there is no indication the ALJ even attempted to re-contact
one of Plaintiff’s treating physicians to obtain an updated medical opinion regarding her ability to
function as of 2019, send Plaintiff for an updated [consultative examination], or even obtain the
testimony of a medical expert.” (Pl.’s Mem. at 12.)
Defendant responds that Plaintiff has the burden to present evidence establishing disability
and that Plaintiff never asked for further development of the record or additional consultative
examination. (Def.’s Mot. For Summ. J. and Br. in Supp. Thereof 14–15, ECF No. 20 (“Def.’s
Mem.”.) Defendant notes that the ALJ held the record open for thirty days following the December
2019 evidentiary hearing, yet Plaintiff did not submit any additional medical opinions. (Def.’s
Mem. at 16.) Defendant also contends that the record was otherwise sufficient for the ALJ to fully
assess Plaintiff’s disability claim, and the ALJ adequately examined and analyzed this record.
(Def.’s Mem. at 17.)
The Social Security administrative hearing process is not adversarial, and the ALJ’s role is
to both decide issues and to develop the record. See Pearson, 810 F.3d at 210 (citing Cook v.
Heckler, 783 F.2d 1168, 1173–74 (4th Cir. 1986)); see also Gray v. Apfel, No. 98-2576, 1999 WL
710362, at *1 (4th Cir. Sept. 13, 1999) (“Social Security ALJ’s are not simply arbiters, but also
inquisitors.”). The ALJ, for example, has a duty to investigate the facts and develop the record
“independent of the claimant or his counsel.” Pearson, 810 F.3d at 210 (4th Cir. 2015) (citing
Cook, 783 F.2d at 1173–74).
“However, an ALJ is ‘not required to function as the claimant’s substitute counsel, but only
to develop a reasonably complete record.’” Eva L. v. Saul, No. 1:20CV0162, 2020 WL 5648324,
9
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 10 of 18 PageID# 130
at *18 (E.D. Va. Sept. 22, 2020) (emphasis added) (quoting Clark v. Shalala, 28 F.3d 828, 830–
31 (8th Cir. 1994)); see also Zook v. Comm’r of Soc. Sec., No. 2:09CV109, 2010 WL 1039456, at
*4 (E.D. Va. Feb. 25, 2010) (same), report and recommendation adopted sub nom. Zook v. Astrue,
No. 2:09CV109, 2010 WL 1039830 (E.D. Va. Mar. 18, 2010). The claimant still retains the burden
to prove that he or she is disabled. §§ 404.1512(a)(1), 416.912(a)(1). The regulations therefore
require the claimant to “inform . . . or submit” to the Commissioner all evidence known to the
claimant that relates to the alleged disability. Id. “This duty is ongoing and requires [the claimant]
to disclose any additional related evidence about which [the claimant] become[s] aware.”
§§ 404.1512(a)(1), 416.912(a)(1) (emphasis added).
Stated succinctly, the ALJ has a duty to assist the claimant in developing the factual record,
but the claimant must trigger such duty by fulfilling his or her own burden to inform the ALJ of
the evidence to be developed or to submit the evidence directly. See §§ 404.1512(a)(1),
416.912(a)(1); see also Richardson v. Perales, 402 U.S. 389, 410 (1971) (“The social security
hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with
developing the facts.”).
In Hart v. Astrue, for instance, a claimant argued that the ALJ failed to adequately develop
the record in part because there was a “lack []of medical records” within twenty-one months of the
ALJ’s hearing. No. 2:08CV56, 2009 WL 1163989, at *4–*5 (E.D. Va. Apr. 27, 2009). This Court
specifically noted:
There is nothing in the record to indicate that this lack of medical records was due
to [the claimant] being unable to appropriately treat his medical conditions or [the
claimant] not submitting medical records. Rather, it appears that . . . [the claimant]
simply did not seek medical treatment regarding anything [the claimant] deemed
relevant to the Commissioner’s evaluation of his disability claim. Moreover, it was
incumbent upon [the claimant] to submit all relevant medical records, and the ALJ
left the record open for thirty days [following the ALJ hearing] for him to do so.
10
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 11 of 18 PageID# 131
Id. (emphasis added). The Court accordingly held that the ALJ did not err in failing to advise the
claimant to provide additional medical records from this twenty-one month period. Id. at *5. Hart
thus reflects the regulations’ division of responsibilities between the ALJ and the claimant to build
the administrative record. The ALJ will assist the claimant with developing the factual record, but
the claimant must fulfill his or her own burden to inform the ALJ about the evidence to be
developed or to submit the evidence independently. See §§ 404.1512(a)(1), 416.912(a)(1).
In the instant case, the ALJ adequately fulfilled his duty to develop the administrative
record. At the hearing, Plaintiff’s counsel informed the ALJ that Plaintiff wished to submit
additional records from Dr. Boulware and from the Spotsylvania Medical Center. (R. at 863–64.)
Plaintiff’s counsel specified that Dr. Boulware’s records were “the only [] new” records regarding
a diagnosis, and such records would show that Plaintiff was diagnosed with fibromyalgia. (R. at
864.) Thus, as of the December 2019 hearing, Plaintiff’s purported fibromyalgia diagnosis was the
only remaining diagnosis that needed further factual development. The ALJ then allowed Plaintiff
to submit additional records for thirty days after the hearing. While Plaintiff later submitted
records, Plaintiff did not alert the ALJ to any need for additional medical opinions concerning
Plaintiff’s blackouts at the hearing or within the thirty-day period afterward. In fact, Plaintiff did
not mention her blackouts at her December 2019 hearing testimony.
While the ALJ has a duty to assist Plaintiff “develop” the factual record, the Plaintiff must
“inform” the ALJ of the facts that need to be developed, including disclosing the existence of “any
additional related evidence about which you become aware.” See §§ 404.1512(a)(1),
416.912(a)(1). Like the claimant in Hart, Plaintiff did not inform the ALJ that more facts regarding
11
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 12 of 18 PageID# 132
Plaintiff’s blackouts needed to be developed, and therefore the ALJ sufficiently fulfilled his duty
in assisting Plaintiff develop the administrative record. 5
Plaintiff also argues that the ALJ had a duty to re-contact Plaintiff’s treating physicians for
an updated medical opinion or order another examination by a state consultant. (Pl.’s Mem. at 12.)
The regulations, however, do not support Plaintiff’s arguments. The regulations state that the
Commissioner “may recontact your medical source” and “may ask you to undergo a consultative
examination,” if there is insufficient evidence to determine whether a claimant is disabled.
§§ 404.1520b(b)(2)(i) & (iii), 416.920b(b)(2)(i) & (iii) (emphases added). The regulations note
that the Commissioner “will try to resolve” any evidentiary insufficiency, though the
Commissioner “might not take all of the [above] actions.” §§ 404.1520b(b)(2), 416.920b(b)(2).
By including the terms “may” or “try,” these regulations afford the Commissioner or ALJ
discretion to re-contact a medical source or order a consultative examination. 6 Considering that
5
Although Plaintiff seeks to distinguish Hart by arguing that Plaintiff here did not have
access to a missing updated medical opinion (Pl.’s Reply to Def.’s Mot. For Summ. J. 3, ECF No.
21), the facts in Hart are nearly identical. The claimant in Hart specifically argued that the ALJ
failed to adequately develop the record because there was a “lack []of medical records” from a
twenty-one month period prior to the ALJ’s hearing. 2009 WL 1163989, at *4 (emphasis added).
The Court observed that the claimant could have sought additional treatment or records to
supplement the records from this period. Id. Like in Hart, there is nothing in the record here
showing that Plaintiff was unable to seek another medical examination or submit additional
updated medical records concerning her blackouts ahead of the December 2019 hearing or for the
thirty days that the ALJ kept the record open.
6
The Court notes that the Social Security Administration intentionally changed this
regulation from mandatory to discretionary terms. The regulations used to state: “When the
evidence we receive from your . . . medical source is inadequate . . . (1) We will first recontact
your . . . medical source . . . .” 20 C.F.R. §§ 404.1512(e)(1), 416.1512(e)(1) (2011) (emphasis
added). The regulations were then revised to replace “will” with “may.” 20 C.F.R.
§§ 404.1520b(c)(1), 416.920b(c)(1) (2014). The Social Security Administration explained:
We are modifying the requirement to recontact your medical source(s) first when
we need to resolve an inconsistency or insufficiency in the evidence he or she
provided. . . . By giving adjudicators more flexibility in determining how best to
12
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 13 of 18 PageID# 133
Plaintiff did not alert the ALJ to any new development concerning Plaintiff’s blackouts, nor request
the ALJ to re-contact medical sources or order another consultative examination, the ALJ did not
abuse his discretion here in failing to re-contact Plaintiff’s treating physicians or obtain another
state consultant examination.
In sum, the ALJ did not err in failing to acquire an updated medical opinion regarding
Plaintiff’s blackouts. Plaintiff did not mention the blackouts at her December 2019 hearing
testimony, nor inform the ALJ of any need for an updated medical opinion ahead of such hearing
or for the thirty days afterward that the ALJ kept the record open. The ALJ therefore adequately
fulfilled his duty to develop the administrative record.
B. The ALJ Did Not Err At Step Two in Determining Plaintiff’s Blackouts Were Not
“Medically Determinable” or Severe.
Plaintiff also argues that the ALJ erred in determining that Plaintiff’s blackouts were not
“medically determinable” or severe at step two of the sequential evaluation process. (Pl.’s Mem.
at 13–14.) Specifically, Plaintiff contends that the ALJ erred in requiring objective evidence of
Plaintiff suffering her blackouts, in the form of notations in Plaintiff’s medical records; not
acknowledging that Plaintiff’s lupus could cause blackouts; and ignoring the fact that Plaintiff had
been diagnosed with “complex partial seizures” and was prescribed a seizure-preventative drug.
(Pl.’s Mem. at 14.)
Defendant argues the ALJ properly concluded that Plaintiff’s asserted blackouts were not
medically attributable to her impairments. (Def.’s Mem. at 18.) Defendant contends that the ALJ
properly relied on normal findings in Plaintiff’s brain MRI and electroencephalogram results and
obtain this information, we will be able to make a determination or decision on
disability claims more quickly and efficiently in certain situations.
77 Fed. Reg. 10651-01, 2011 WL 7404303, at *10651 (Feb. 23, 2012) (emphasis added).
13
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 14 of 18 PageID# 134
that no doctor has observed Plaintiff suffering from a blackout. (Def.’s Mem. at 19–20.) Finally,
Defendant argues that any error at step two is harmless given Plaintiff’s restrictive residual
functional capacity determination. (Def.’s Mem. at 20–21.)
At step two, the ALJ considers the “medical severity” of the claimant’s “medically
determinable” impairments. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). To constitute a “medically
determinable” impairment, the claimant’s alleged impairment “must be established by objective
medical evidence from an acceptable medical source.” 7 §§ 404.1521, 416.921. “[O]bjective
medical evidence” means “laboratory findings” or “abnormalities that can be observed, apart from
your statements (symptoms).” §§ 404.1502(f) & (g), 416.902(f) & (g). The ALJ “will not use [a
claimant’s] statement of symptoms, a diagnosis, or a medical opinion to establish the existence of
an impairment(s).” §§ 404.1521, 416.921.
If an impairment is medically determinable, the ALJ then determines whether such
impairment is “severe.” Id. To be severe, an impairment must “significantly limit[] [the claimant’s]
physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c), 404.1522(a),
416.922(a). Additionally, “[u]nless [the claimant’s] impairment is expected to result in death, it
must have lasted or must be expected to last for a continuous period of at least 12 months” to be
“severe.” §§ 404.1509, 416.909, 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
In the instant case, at step two, the ALJ concluded that “the evidence is not sufficient to
establish that [Plaintiff] has any type of medically determinable blackout spells.” (R. at 844.) The
ALJ noted that Plaintiff complained to a neurologist in August 2016 about frequent blackouts, but
that a subsequent examination, MRI, and electroencephalogram revealed normal findings. (R. at
7
An “acceptable medical source” includes a licensed physician, psychologist, or other
qualifying medical professional. §§ 404.1502, 416.902.
14
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 15 of 18 PageID# 135
844.) The ALJ further noted that Plaintiff testified at the May 2017 hearing that she suffered from
one to two blackouts per week, but the ALJ reasoned that no evidence in the record or objective
findings confirmed these blackouts. (R. at 844.)
The ALJ did not err in concluding that Plaintiff’s blackouts were not a “medically
determinable” impairment. To be “medically determinable,” an impairment must be established
by objective medical evidence, such as laboratory findings or medical observations. §§ 404.1521,
416.921, 404.1502(f) & (g), 416.902(f) & (g). Plaintiff has not identified any laboratory finding
or other medical observation to confirm her blackouts. As noted by the ALJ, neurological and brain
examinations revealed normal findings. (See, e.g., R. at 732–34 (“This outpatient ambulatory EEG
shows normal awake and sleep patterns.”).)
Plaintiff also cannot rely on Dr. Rivera’s opinion or Plaintiff’s own testimony to establish
that her blackouts were a “medically determinable” impairment. Although Dr. Rivera asserted that
Plaintiff’s blackouts were a medical impairment, the regulations state that an ALJ “will not use . . .
a medical opinion to establish the existence of an impairment(s).” §§ 404.1521, 416.921. Rather,
the regulations require laboratory findings and medical observations to establish a “medically
determinable” impairment. §§ 404.1502(f) & (g), 416.902(f) & (g). Similarly, an ALJ cannot rely
on Plaintiff’s statements to demonstrate the existence of a “medically determinable” impairment.
See §§ 404.1502(f) & (g), 416.902(f) & (g), 404.1521, 416.921. Thus, the ALJ did not err in
concluding that Plaintiff’s blackouts were not a “medically determinable” impairment.
Plaintiff nonetheless asserts three arguments alleging the ALJ erred at step two. First,
Plaintiff contends the ALJ erred by requiring medical observation of her blackouts. (Pl.’s Mem. at
13.) As an initial matter, as discussed above, the ALJ did not rely solely on the absence of medical
observation of the blackouts to conclude that Plaintiff’s blackouts were not medically
15
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 16 of 18 PageID# 136
determinable. (R. at 844 (noting unremarkable or normal neurological examinations, MRI,
electroencephalogram).) Further, Plaintiff’s argument ignores the requirement that an impairment
be “medically determinable,” which “must be established by objective medical evidence from an
acceptable medical source.” §§ 404.1521, 416.921 (emphasis added). “[O]bjective medical
evidence” means “laboratory findings” or “abnormalities that can be observed, apart from your
statements (symptoms).” §§ 404.1502(f) & (g), 416.902(f) & (g) (emphasis added). Thus, the
regulations explicitly instruct the ALJ to require medical observation, or some other form of
“objective medical evidence,” to establish that Plaintiff’s blackouts were “medically
determinable.” For this reason, the ALJ did not err in noting that Plaintiff’s blackouts had not been
observed.
Second, Plaintiff contends that the ALJ should have recognized that Plaintiff’s lupus was
an impairment “that could cause her blackouts.” (Pl.’s Mem. at 14.) This argument, however, is
not pertinent to step two, which asks the ALJ to “consider the medical severity of [Plaintiff’s]
impairment(s)”—not
the
severity
of
Plaintiff’s
symptoms.
See
§§ 404.1520(a)(4)(ii),
416.1520(a)(4)(ii) (emphasis added). Thus, at step two, the ALJ was tasked with determining
whether Plaintiff’s impairments, such as lupus, were medically determinable and severe. If lupus
“cause[s]” blackouts as Plaintiff alleges, then such blackouts are a symptom of lupus—not an
impairment in of itself.
Moreover, the ALJ determined that Plaintiff’s lupus was in fact a severe and “medically
determinable” impairment, which renders any purported error harmless. “An error at step two of
the sequential evaluation process is harmless so long as the ALJ finds at least one severe
impairment and considers an impairment’s effects in subsequent steps of the sequential
evaluation.” Candy A. C. v. Kijakazi, No. 3:20CV107, 2021 WL 3627152, at *6 (E.D. Va. July 29,
16
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 17 of 18 PageID# 137
2021), report and recommendation adopted, No. 3:20CV107, 2021 WL 3625305 (E.D. Va. Aug.
16, 2021). Here, the ALJ deemed Plaintiff’s lupus a “medically determinable” and severe
impairment, and the ALJ considered Plaintiff’s blackouts when assessing Plaintiff’s residual
functional capacity. (R. at 851 (discussing Dr. Rivera’s opinion regarding Plaintiff’s blackouts).)
Thus, any purported error at step two regarding Plaintiff’s lupus is harmless.
Third and finally, Plaintiff—relying on medical records from her August 2016 visit with a
neurologist—argues that she was diagnosed with blackouts because she suffers from complex
partial seizures and was prescribed topiramate, which is a seizure-preventative drug. (Pl.’s Mem.
at 14 (citing R. at 767).) According to Plaintiff, because of her seizures and her prescription, “her
blackouts were not only medically determinable, but diagnosed by an acceptable medical source.”
(Pl.’s Mem. at 14.) The medical records cited by Plaintiff do not support Plaintiff’s argument. The
neurologist noted Plaintiff’s statements about suffering from blackouts and accordingly ordered
an MRI and an electroencephalogram. (R. at 767–69.) The neurologist explained that Plaintiff’s
blackouts were “convincing of possible seizure disorder, like complex partial seizure.” (R. at 776
(emphasis added).) The neurologist thus decided: “Will start topiramate 50 mg PO BID for
suspected complex partial seizures.” (R. at 767 (emphasis added).) Another medical record from
the same August 2016 visit also notes that the topiramate would be prescribed “in the meantime”—pending the results of the MRI and electroencephalogram. (R. at 776.) These terms—such
as “possible” and “suspected”—are too uncertain to constitute a definitive medical diagnosis, and
Plaintiff’s topiramate prescription was precautionary. Thus, the August 2016 medical records do
not demonstrate that Plaintiff was diagnosed with blackouts or that such blackouts were caused by
one of Plaintiff’s severe impairments.
17
Case 3:20-cv-00263-EWH Document 26 Filed 09/17/21 Page 18 of 18 PageID# 138
In sum, the ALJ did not err in failing to acquire an updated medical opinion regarding
Plaintiff’s blackouts. Because the record lacked any objective medical evidence supporting
Plaintiff’s blackouts, the ALJ also did not err in concluding that Plaintiff’s blackouts were not a
“medically determinable” impairment.
V. CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Summary
Judgment (ECF No. 18), GRANTS Defendant’s Motion for Summary Judgment (ECF No. 20),
and AFFIRMS the final decision of the Commissioner.
/s/
Elizabeth W. Hanes
United States Magistrate Judge
Richmond, Virginia
Date: September 17, 2021
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?