Thomas Bowers v. Carolyn Colvin ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1700
THOMAS R. BOWERS,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN,
Defendant – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:10-cv-00458-JAB-LPA)
Argued: September 16, 2015 Decided: October 8, 2015
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Kevin Morton, Winston-Salem, North Carolina, for
Appellant. Jeanne Dana Semivan, SOCIAL SECURITY ADMINISTRATION,
Boston, Massachusetts, for Appellee. ON BRIEF: Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina; John J. Engel, Special Assistant
United States Attorney, Office of General Counsel, SOCIAL
SECURITY ADMINISTRATION, Boston, Massachusetts, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Bowers (“Bowers”) petitions for review of the denial
of his claim for disability benefits under the Social Security
Act (the “SSA”). The administrative law judge (the “ALJ”)
reviewing the claim concluded that Bowers failed to meet his
burden to show that he suffered from Chronic Fatigue Syndrome
(“CFS”). The district court, adopting a Report and
Recommendation from the assigned magistrate judge, granted the
Commissioner’s motion for judgment on the pleadings. For the
reasons that follow, we affirm the judgment of the district
court.
I.
In 2004, Bowers applied for Social Security disability
benefits, claiming that he suffered from CFS. On June 20, 2008,
the ALJ who reviewed the application found that Bowers was not
disabled. Specifically, the ALJ found that “[w]hile the medical
record does show that the claimant complained of fatigue, it
does not show a diagnosis of chronic fatigue syndrome.”
A.R. 20. In the absence of a documented medical diagnosis, the
ALJ determined that Bowers failed to show that he suffered from
CFS.
Following the ALJ’s decision, Bowers unsuccessfully
petitioned the Social Security Appeals Council for review of the
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decision, which at that point became final. Bowers then
initiated this action in the United States District Court for
the Middle District of North Carolina. After the Social
Security Commissioner moved for judgment on the pleadings, the
district judge referred the case to the assigned magistrate
judge for a Report and Recommendation on the motion. The
magistrate judge recommended that the motion be granted, and
Bowers timely filed objections. The district judge adopted the
Report and Recommendation and dismissed the case.
II.
On appeal, Bowers contends that he met his burden of
showing that he suffered from CFS, and that the ALJ’s conclusion
was therefore erroneous. Before turning to Bowers’s arguments,
we briefly set out the standard of review.
A.
In determining whether Bowers met his burden of showing
that he has a qualifying disability, we “will affirm the Social
Security Administration’s disability determination ‘when an ALJ
has applied correct legal standards and the ALJ’s factual
findings are supported by substantial evidence.’” Mascio v.
Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v.
Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)).
3
Our review of the district court’s decision to grant the
Commissioner’s motion for judgment on the pleadings is de novo.
Id. (citing Korotynska v. Metro. Life Ins. Co., 474 F.3d 101,
104 (4th Cir. 2006)).
With this standard in mind, we turn to Bowers’s challenge
to the Commissioner’s decision.
B.
Bowers contends that the ALJ’s determination was flawed
because Bowers demonstrated that he suffered from CFS. More
specifically, Bowers asserts that the ALJ’s decision is
contradicted by the record, which (according to Bowers) contains
evidence of symptoms that meet the diagnostic criteria for CFS.
Bowers also contends that the ALJ’s determination that Bowers
retained a sufficient residual functional capacity was
erroneous, because the ALJ did not consider Bowers’s CFS-related
limitations. 1
The adjudicative process governing a claim for social
security disability benefits involves a well-established, five-
step procedure. Radford v. Colvin, 734 F.3d 288, 290–91 (4th
Cir. 2013) (citing 20 C.F.R. § 404.1520(a)(4); Hancock v. Astrue,
1Because we find that substantial evidence supports the
ALJ’s finding that Bowers did not suffer from CFS, however, we
need not reach this argument.
4
667 F.3d 470, 472–73 (4th Cir. 2012)). These steps proceed as
follows, as the Commissioner determines whether the claimant:
(1) worked during the purported period of disability;
(2) has an impairment that is appropriately severe and
meets the duration requirement; (3) has an impairment
that meets or equals the requirements of a ‘listed’
impairment and meets the duration requirement; (4) can
return to her past relevant work; and (5) if not, can
perform any other work in the national economy.
Radford, 734 F.3d at 290–91 (citing Hancock, 667 F.3d at 472–
73).
This appeal concerns the ALJ’s determination at step two of
that procedure, under which Bowers was required to show “a
severe medically determinable physical or mental impairment
. . . or a combination of impairments that is severe.”
20 C.F.R. § 404.1520(a)(4)(ii). Significant for purposes of our
analysis, the claimant bears the burden of production and proof
to show that he suffers from a severe medically determinable
impairment. Radford, 734 F.3d at 291.
The record makes clear that no doctor has ever diagnosed
Bowers with CFS. For this reason, Bowers does not take issue
with the ALJ’s assessment that, “while the medical record does
show that [Bowers] complained of fatigue, it does not show a
diagnosis of chronic fatigue syndrome.” A.R. 20. The record
does contain a notation from a September 2004 evaluation, where
Bowers’s doctor wrote under “ASSESSMENT” that Bowers “ha[d]
chronic fatigue, possibly associated with previous Epstein-Barr
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virus exposure.” A.R. 557. Later that year, in December 2004,
the same doctor’s assessment again included the words “chronic
fatigue.” A.R. 491. These notations are not a diagnosis of
CFS. Rather, these statements demonstrate that Bowers self-
reported chronic fatigue as a symptom, and that Bowers’s
physician was considering CFS as a potential diagnosis. But
that diagnosis did not materialize; the record contains no
subsequent notations regarding CFS.
Bowers contends that he was not required to show a medical
diagnosis of CFS, and that, if the ALJ had reviewed the record,
he would have determined that Bowers suffers from CFS.
According to Bowers, the medical record reflects that he had
symptoms that satisfy the diagnostic criteria for the condition,
and that this sufficiently proves that he suffers from CFS as a
medically determinable impairment. In other words, Bowers
argues that he can demonstrate an impairment by offering
evidence of the impairment’s symptoms. To support his argument,
Bowers points to Social Security Ruling 99-2p, which provides
standards for evaluating claims of disability based upon CFS.
Soc. Sec. Ruling, SSR 99-2p, Titles II and XVI: Evaluating Cases
Involving Chronic Fatigue Syndrome (CFS), 64 Fed. Reg. 23380
6
(Apr. 30, 1999) (hereinafter “SSR 99-2p”). 2 That Ruling explains
its function as follows:
[The Social Security Act] and our implementing
regulations require that an individual establish
disability based upon the existence of a medically
determinable impairment; i.e., one that can be shown
by medical evidence, consisting of medical signs,
symptoms and laboratory findings. . . . This Ruling
explains that CFS, when accompanied by appropriate
medical signs or laboratory findings, is a medically
determinable impairment that can be the basis for a
finding of “disability.” It also provides guidance of
claims involving CFS.
SSR 99-2p, 64 Fed. Reg. at 23381. Bowers argues that SSR 99-2p
allows a claimant to prove that he suffers from CFS, even in the
absence of a formal diagnosis, by establishing that he has
exhibited the medical signs enumerated in the ruling. He argues
that by demonstrating that he has manifested the diagnostic
criteria of CFS, he has established that he suffers from a
recognized impairment. In particular, Bowers points to evidence
in the record of muscle tenderness, fatigue, and an elevated
Epstein-Barr virus titer. Based upon this evidence, Bowers
contends that he has exhibited the established criteria for CFS,
and therefore has met his burden to establish an impairment.
2
SSR 99-2p was in effect at the time the ALJ initially
adjudicated Bowers’s claim. Since that time, the Social Security
Administration has rescinded SSR 99-2p and replaced the Ruling
with SSR 14-1p, which updates the diagnostic criteria in the
rule based upon advances in medical knowledge of CFS.
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Bowers has provided no legal authority in support of his
view of SSR 99-2p, and we find his argument unpersuasive. In
essence, Bowers’s reading of the Ruling asks the ALJ to do what
Bowers’s own doctors did not: diagnose him with CFS based upon
his symptoms. Bowers argues that the ALJ should have combed
through the record to determine whether Bowers’s documented
medical symptoms suggested that he suffered from CFS. SSR 99-2p
does not require the ALJ to make such an assessment. 3 Instead,
the Ruling addresses how the ALJ should determine whether the
claimant’s symptoms--measured against established medical
criteria--support the doctor’s diagnosis. In this manner,
although SSR 99-2p does not expressly require a formal medical
diagnosis of CFS, it certainly proceeds from the assumption that
one has been made. 4 The text of 99-2p makes this clear:
3 This would have been particularly difficult for the ALJ to
do in this case, because the laboratory results relating to
Bowers’s elevated Epstein-Barr virus titers were not in the
record. Bowers’s doctor, however, had this information,
including the numeric values of the laboratory findings. By
contrast, the record before the ALJ only contained a doctor’s
notation that the readings were “elevated.” A.R. 556.
4 In fact, the current version of the Ruling expressly
acknowledges that a diagnosis of CFS is necessary, but not
sufficient, to establish a medically determinable impairment.
SSR 14-1p specifically states: “A person can establish that he
or she has . . . CFS by providing appropriate evidence from an
acceptable medical source. . . . We cannot rely upon the
physician’s diagnosis alone.” Soc. Sec. Ruling 14-1p, Titles II
and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome
(Continued)
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CFS is a systemic disorder consisting of a complex of
symptoms that may vary in incidence, duration, and
severity. . . . In accordance with the criteria
established by the CDC, a physician should make a
diagnosis of CFS only after alternative medical and
psychiatric causes of chronic fatiguing illness have
been excluded.
SSR 99-2p, 64 Fed. Reg. at 23381 (emphasis added). Moreover,
SSR 99-2p repeatedly states that its criteria are to be applied
to “individuals with CFS” or “persons with CFS,” which would be
circular if the ALJ’s role were (as Bowers suggests) to
determine whether the claimant was an individual with CFS. See,
e.g., id. at 23381–82.
Indeed, this court’s ruling in Mastro v. Apfel, 270 F.3d
171 (4th Cir. 2001), supports our holding that a medical
determination is a necessary, but not sufficient, requirement
for a finding of disability based upon CFS. In Mastro, we
affirmed the Commissioner’s decision to deny disability benefits
to a claimant who had been diagnosed with CFS, because the
diagnosis was not supported by the medical indicia required by
SSR 99-2p. Id. at 178–79. It would be curious indeed if we
were to hold that Bowers, who was never diagnosed with CFS, was
entitled to benefits, given the plaintiff in Mastro was not
successful. If it is true, as Bowers argues, that the ALJ could
(CFS), 2014 SSR LEXIS 1, at *9–10, 2014 WL 1371245, at *4
(Apr. 3, 2014) (footnote omitted).
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have found an impairment of CFS based upon his symptoms, then a
doctor could easily have done the same. We merely hold that the
law requires this determination to be made by a doctor, and not
an ALJ, in the first instance.
In sum, we conclude that substantial evidence supports the
ALJ’s determination that Bowers failed to establish through
medical evidence that he suffered from CFS.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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