McRoberts v. Colvin

Filing 11

MEMORANDUM OPINION AND ORDER pursuant to the 10 Objections to Proposed Findings and Recommendation and 9 Proposed Findings and Recommendation by Magistrate Judge; the court does not adopt the magistrate judge's recommendations; directing that the decision of the ALJ is affirmed; and this action is dismissed and stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 3/29/2018. (cc: counsel of record; any unrepresented parties; magistrate judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAVID MCROBERTS,
Plaintiff,
v.

Civil Action No. 2:16-cv-09789

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the objections to the magistrate judge's
Proposed Findings and Recommendation (“PF&R”), filed by
defendant Nancy A. Berryhill (the “Commissioner”) on March 13,
2018.

I. Procedural History

The plaintiff, David McRoberts (“Claimant”), initiated
this action in this court on October 17, 2016, pursuant to 42
U.S.C. § 405(g) (2016).

Claimant seeks review of the

Commissioner’s final decision denying his application for
disability insurance benefits.
In accordance with 28 U.S.C. § 613(b)(1)(B) and the
standing order in this district, this action was referred to
United States Magistrate Judge Dwane L. Tinsley for findings of

fact and recommendations for disposition.

On March 17, 2017,

the Commissioner filed an answer to Claimant’s complaint.
Because neither party moved for judgment, the
magistrate judge, on February 28, 2018, submitted his PF&R “on
the merits of the case.”

(PF&R 1.)

The magistrate judge found

that “[t]he [administrative law judge’s (“ALJ”)] step three
evaluation was inadequate.”

(Id. 7.)

Step three, which is part

of a mandatory five-step analysis conducted by the Commissioner,
involves comparing a claimant's impairments to listed
impairments in the social security regulations. See 20 C.F.R. §
404.1520(a)(4)(iii) (2017).

The magistrate judge reasoned that

“[e]ven considering the ALJ’s statements outside of step three,
without a discussion about the . . . criteria [of Listings
13.13, 13.14, and 13.25] and how those requirements apply to the
ALJ’s findings, the analysis is incomplete and precludes
meaningful review.”

(PF&R 7.)

Thus, the magistrate judge

recommends that the court
remand the final decision of the Commissioner for
further consideration under sentence four of 42 U.S.C.
§ 405(g) and dismiss this matter from the Court’s
docket.
(Id. 8 (emphases omitted).)
On March 13, 2018, the Commissioner filed objections
to the PF&R.

The Commissioner contends that “the unique

circumstances in this case do not render the ALJ’s step three
2

decision regarding Listings 13.13, 13.14, and 13.25 beyond
meaningful judicial review.”

(Obj. 3.)

Claimant did not

respond.

II. Standard of Review

The court reviews de novo those portions of the
magistrate judge's PF&R to which objections are timely filed.
28 U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982).

On the other hand, the standard for review

of the Commissioner's decision is rather deferential to the
Commissioner, for “a reviewing court must ‘uphold the
determination when an ALJ has applied correct legal standards
and the ALJ's factual findings are supported by substantial
evidence.’”

Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 267

(4th Cir. 2017) (quoting Preston v. Heckler, 769 F.2d 988, 990
(4th Cir. 1985)); Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Cir. 1974) (court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence); see also 42 U.S.C. § 405(g).

Substantial

evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.”

Richardson v. Perales, 402

U.S. 389, 401 (1971) (internal citations omitted); accord Brown,
873 F.3d at 267.

3

“In reviewing for substantial evidence, [a district
court does] not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.”

Johnson v. Barnhart, 434 F.3d 650, 653 (4th

Cir. 2005) (per curiam).

Substantial evidence is by definition

more than “a mere scintilla,” Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996), but “may be somewhat less than a
preponderance,” Blalock v. Richardson, 483 F.2d 773, 776 (4th
Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1996)).

III. Discussion

20 C.F.R. § 404.1520(a)(4) sets forth “[t]he five-step
sequential evaluation process” to be applied by the Commissioner
when evaluating an application for disability.

The United

States Court of Appeals for the Fourth Circuit summarizes the
five steps as follows:
[t]he Commissioner asks whether the claimant: (1)
worked during the purported period of disability; (2)
has an impairment that is appropriately severe and
meets the duration requirement; (3) has an impairment
that meets or equals the requirements of a “listed”
impairment and meets the duration requirement; (4) can
return to her past relevant work; and (5) if not, can
perform any other work in the national economy.
Hancock v. Astrue, 667 F.3d 470, 472–73 (4th Cir.
2012). The claimant has the burden of production and
proof at Steps 1–4. Id.

4

Radford v. Colvin, 734 F.3d 288, 290-91 (4th Cir. 2013) (full
citation added).

Step three is at issue here.

At “step three, the ALJ decides whether the claimant
has an impairment that meets or equals an impairment listed in
the regulations for being severe enough to preclude a person
from doing any gainful activity.”

Brown, 873 F.3d at 254.

The

listings of specific impairments are found in Appendix 1 to
Subpart P of the regulations.
404.1520(a)(4)(iii).

See 20 C.F.R. §

To meet a listing, a claimant “must meet

all of the specified medical criteria.

An impairment that

manifests only some of those criteria, no matter how severely,
does not qualify.”
(1990).

Sullivan v. Zebley, 493 U.S. 521, 530

To equal a listing, a claimant “must present medical

findings equal in severity to all the criteria for the one most
similar listed impairment.”

Id. at 531.

A claimant who meets

or equals a step three listing is conclusively disabled.

20

C.F.R. § 404.1520(a)(4)(iii); accord Radford, 734 F.3d at 291
(citing Bowen v. City of New York, 476 U.S. 467, 471 (1986), and
McNunis v. Califano, 605 F.2d 743, 744 (4th Cir. 1979)).
The entirety of the ALJ’s step three analysis of
Listings 13.13, 13.14, and 13.25 is as follows:

5

[Claimant’s] history of cancer is evaluated under
Section 13.00 of the listings, specifically 13.25 for
testicular cancer, 13.14 for lung cancer, and 13.13
for brain cancer. However, [Claimant] meets the
requirements of none of these listings. His cancer
was successfully treated and he has been in remission
for 14 years (Exhibits 3F and 11F).
(Tr. 18.)

Furthermore, as noted by the magistrate judge, the

ALJ recited the following elsewhere in his decision:
The record reveals a history of testicular cancer in
1998, which metastasized to [Claimant’s] lungs and
brain. He was treated with radiation and his cancer
went into remission. However, his treatment resulted
in radiation-induced vasculopathy which, in turn,
caused a cerebrovascular accident in 2009. He has
experienced cognitive difficulties since that time, as
well as hearing loss and balance disturbances. (Id.
17.)
. . .
[Claimant] testified he was diagnosed with testicular
cancer in 1998, which subsequently metastasized to his
brain and lungs and was treated with radiation
therapy. He indicated his cancer went into remission,
he returned to work a year later and worked until he
suffered a stroke in 2009. (Id. 21.)
. . .
Medical records confirm [Claimant’s] description of
cancer and subsequent stroke in 1998 and 2009,
respectively. By August 2009, [Claimant’s] cancer
remained in remission and vascular surgeon Nepal
Chowdhury, M.D., noted complete recovery from his
previous mini-stroke. (Id.)
(PF&R 7.)
The magistrate judge found this analysis insufficient
because it “failed to apply the requirements of the listings to
the medical record” and “did not explain how the effects of
6

therapy are considered under Listings 13.13, 13.14 and 13.25 and
what evidence is needed to demonstrate remission.”

(PF&R 7.)

The magistrate judge relied upon the Fourth Circuit’s opinion in
Radford, which he interpreted as “stat[ing] that a necessary
predicate to engaging in substantial evidence review is a record
of the basis for the ALJ’s ruling.”
F.3d 288).)

(Id. 5 (citing Radford, 734

Thus, the magistrate judge recommends that the

court remand this case to the ALJ for further consideration.
(Id. 8.)
The Commissioner disagrees that the three listings
require further analysis.

(See Obj. 3-4.)

The Commissioner

notes “that the ALJ observed [Claimant] was in remission and
could not satisfy any of the cancer-related Listings.”

(Id. 4.)

As a result, according to the Commissioner, the ALJ’s step three
analysis permits meaningful judicial review.

(Id. 3.)

While

Claimant did not respond to the Commissioner’s objections, in
his only filing in support of his claim - the complaint Claimant only tangentially mentioned his history of cancer; that
is, in his claim of mental limitations, he noted that his “test
results demonstrated a decline in [his] premorbid functioning
with symptoms of a cognitive disorder that were likely the
result of a 2009 stroke experienced by [him] following
chemotherapy treatments for metastatic cancer.”

7

(Compl. ¶ 6.2.)

The court recently confronted similar arguments in
Turley v. Berryhill, No. 2:17-cv-01915, 2018 U.S. Dist. LEXIS
42818 (S.D. W. Va. Mar. 14, 2018).

In that case, the court

concluded “that an in-depth step three analysis is unnecessary
in some instances, particularly when there is not ample evidence
supporting a step three listing.”

Id. at *7-8 (citing, inter

alia, Radford, 734 F.3d at 296, and Ezzell v. Berryhill, 688 F.
App’x 199, 200 (4th Cir. 2017)).

Consequently, the court

proceeded under the following analysis, and under which the
court likewise proceeds here:
The court will examine the ALJ's decision in this case
and determine whether the explanations and discussion
necessary to support the pertinent listing
requirements are contained within the ALJ's decision
itself. If the court need not look beyond the ALJ's
opinion to find substantial evidence supporting the
ALJ's step-three determination, the ALJ's decision may
be affirmed.
Id. at *9 (citing Marcum v. Berryhill, No. 16-2297, 2017 U.S.
Dist. LEXIS 42018, at *9-10 (S.D. W. Va. Mar. 23, 2017)).

After

review of the ALJ’s decision, the court finds that the ALJ’s
development of the record and analysis supports his step three
determination that Claimant does not meet or equal Listings
13.13, 13.14 or 13.25.
Listing 13.00 pertains to cancer.
404, Subpt. P, App’x 1, § 13.00.

See 20 C.F.R. Pt.

This listing specifies the

8

duration for which a cancer could be considered disabling at
step three:
1. In some listings, we specify that we will consider
your impairment to be disabling until a particular
point in time (for example, until at least 12 months
from the date of transplantation). We may consider
your impairment to be disabling beyond this point when
the medical and other evidence justifies it.
2. When a listing does not contain such a
specification, we will consider an impairment(s) that
meets or medically equals a listing in this body
system to be disabling until at least 3 years after
onset of complete remission. When the impairment(s)
has been in complete remission for at least 3 years,
that is, the original tumor or a recurrence (or
relapse) and any metastases have not been evident for
at least 3 years, the impairment(s) will no longer
meet or medically equal the criteria of a listing in
this body system.
Id. § 13.00(H)(1)-(2).

Under Listings 13.13, 13.14, and 13.25,

only a subset of lung cancers under Listing 13.14 has a
specified disabling duration: “until at least 18 months from the
date of diagnosis.”

Id. § 13.14(C).

The remainder fall under

the general duration of “until at least 3 years after onset of
complete remission.”

Id. § 13.00(H)(2).

In step three of the analysis, the ALJ observed that
“[Claimant’s] cancer was successfully treated and he has been in
remission for 14 years (Exhibits 3F and 11F).”

(Tr. 18.)

With

the ALJ’s decision issued in 2015, the court can deduce that
Claimant achieved remission in 2001.

Consequently, Claimant,

whose alleged onset date is April 1, 2013, (id. 14),
9

unquestionably falls outside the relevant disabling periods.
The court thus finds that the ALJ’s determination that Claimant
does not meet Listings 13.13, 13.14, and 13.25 is supported by
substantial evidence, and the court does not adopt the
magistrate judge’s recommendations.
Of additional note here is the magistrate judge’s
contention that the ALJ failed to “explain how the effects of
therapy are considered under Listings 13.13, 13.14 and 13.25.”
(PF&R 7.)

The magistrate judge is presumably referencing the

fact that Claimant’s initial radiation treatment “resulted in
radiation-induced vasculopathy which, in turn, caused a
cerebrovascular accident in 2009.”

(Tr. 16-17.)

When

anticancer therapy is effective, which it was in this instance,
“[w]e evaluate any post-therapeutic residual impairment(s) not
included in these listings under the criteria for the affected
body system.”

20 C.F.R. Pt. 404, Subpt. P, App’x 1, §

13.00(G)(4).

Thus, any lasting effects resulting from

Claimant’s anticancer treatment are evaluated under separate
listings and do not influence the analysis under Listings 13.13,
13.14, and 13.25.

10

Defendants.
ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed Conclusion
IV. as the time by or on which
certain events must occur:
01/28/2016

Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
Accordingly, having received the PF&R, the
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
Commissioner’s objections and having reviewed the record de
prejudice pursuant to L.R. Civ. P. 7.1 (a)).

novo, it
ORDERED for Rule 26(f) meeting.
02/08/2016 is Last day that:
02/15/2016
Last day to file Report of Parties= Planning
1. The decision of the ALJ be, Civ. hereby is, affirmed; and
Meeting. See L.R. and P. 16.1.
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
2. This action be, and hereby is, dismissed and stricken before
Byrd United States Courthouse in Charleston, from
the undersigned, unless canceled. Lead counsel
the docket of the court.
directed to appear.
02/29/2016

Entry of scheduling order.
The Clerk is directed to forward copies of this
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
memorandum opinion and order to all counsel of record, to any
The Clerk is requested to transmit this Order and
unrepresented parties, and to the magistrate judge.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: March 29, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

11