United States District Court, D. Maryland
LETTER TO COUNSEL
Stephanie A. Gallagher United States Magistrate Judge
pending is Plaintiff Tito Dereck Krouse's Motion to
Reconsider the Court's January 17, 2017 Letter Order,
which, inter alia, granted Defendant Social Security
Administration's (“the Commissioner”) Motion
for Summary Judgment. [ECF No. 22]. I have also reviewed the
Commissioner's opposition. [ECF No. 24]. Mr. Krouse asks
the Court to reconsider granting the Commissioner's
Motion on the grounds that the ALJ provided an inadequate
Listing analysis. [ECF No. 22]. No hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
set forth below, Mr. Krouse's motion is DENIED.
January 13, 2016, Mr. Krouse petitioned this Court to review
the Social Security Administration's final decision to
deny his claims for Disability Insurance Benefits and
Supplemental Security Income. [ECF No. 1]. Mr. Krouse's
sole argument on appeal was that the ALJ provided an
inadequate Listing analysis. [ECF No. 18]. Specifically, Mr.
Krouse argued that the ALJ failed to apply specific record
evidence to the Listing criteria, in violation of the
dictates in Fox v. Colvin, 632 F. App'x 750 (4th
Cir. 2015). Id. However, the Court found that the
ALJ did not violate Fox because the ALJ did not
identify any particular listing to be applied. [ECF No. 18].
Accordingly, the Court denied Mr. Krouse's Motion for
Summary Judgment, granted the Commissioner's Motion for
Summary Judgment, and affirmed the Commissioner's
judgment pursuant to sentence four of 42 U.S.C. §
405(g). Id. Subsequently, on January 19, 2017, Mr.
Krouse filed his Motion to Reconsider. [ECF No. 22].
Krouse asks the Court to reconsider its January 17, 2017
Letter Order granting the Commissioner's Motion for
Summary Judgment. [ECF No. 22]; see [ECF No. 18]. In
his motion, Mr. Krouse contends that this Court failed to
properly evaluate the ALJ's Listing analysis under
Fox. Specifically, Mr. Krouse contends that the
Court erred in holding that the ALJ's “reference to
a general category of listings does not indicate that the ALJ
found ample evidence to identify and analyze any or all of
those listings[.]” [ECF No. 22]. Instead, Mr. Krouse
argues that the ALJ's reference to Listing 3.00 required
the ALJ to identify “every one of the specific
subsidiary listings under the listings contained at section
3.00, ” and that the ALJ's failure to do so
warrants remand. Id. For the reasons discussed
below, the ALJ's Listing analysis was proper, and summary
judgment in favor of the Commissioner was warranted.
Accordingly, Mr. Krouse's Motion to Reconsider will be
Krouse argues that this Court erred by affirming the
ALJ's judgment under Fox because the “ALJ
did not identify any particular listing to be applied.”
Id.; see [ECF No. 18]. Specifically, Mr.
Krouse contends that the ALJ was required to identify each
subsidiary listing under Listing 3.00 and to apply specific
record evidence to each Listing's criteria. [ECF No. 22].
To support his argument, Mr. Krouse cites the Fourth
Circuit's holding in Cook v. Heckler, 783 F.2d
1168, 1173 (4th Cir. 1986) and this Court's holding in
Kosisky v. Comm'r, Soc. Sec. Admin.,
No. SAG-15-2403, 2016 WL 2588164, at *5 (D. Md. May 4, 2016).
However, contrary to Mr. Krouse's assertion, the ALJ
conducted a proper Listing analysis, and remand is not
warranted. Beginning with Cook, Mr. Krouse correctly
notes that the Fourth Circuit remanded the case because the
ALJ failed to identify the plaintiff's relevant listed
impairments or to compare each of the listed criteria to the
evidence of the plaintiff's symptoms. Cook, 783
F.2d at 1173. However, the Cook Court also noted
that the ALJ's duty to evaluate a listing was only
triggered where there was ample evidence in the record that
the listing could be met. Id. at 1171; see
Ketcher v. Apfel, 68 F.Supp.2d 629, 645 (D. Md. 1999)
(holding that “[a]n ALJ is required to discuss listed
impairments and compare them individually to Listing criteria
only when there is “ample evidence in the record to
support a determination that the claimant's impairment
meets or equals one of the listed impairments.”);
see Russell v. Chater, No. 94-2371, 60 F.3d 824,
1995 WL 417576, at *3 (4th Cir. July 7, 1995) (unpublished)
(“Cook, however, does not establish an
inflexible rule requiring an exhaustive point-by-point
discussion [of listings] in all cases.”); see also
Fletcher v. Colvin, No. 1:15-CV-166, 2016 WL 915196, at
*5 (M.D. N.C. Mar. 4, 2016) (citing cases).
Mr. Krouse's reliance on Cook is misplaced
because the record does not contain ample evidence to suggest
that he has met any subsidiary listing under Listing 3.00.
Notably, a claimant bears the burden of demonstrating that
his impairment meets or equals a listed impairment.
Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir.
1986). However, Mr. Krouse cites no medical evidence to
suggest that he meets the criteria of any of the subsidiary
listings under Listing 3.00. Specifically, there is no
evidence of chronic respiratory disorder, cystic fibrosis,
bronchiectasis, chronic pulmonary hypertension, lung
transplantation, or respiratory failure. See 20
C.F.R. 404, Subpart P, Appendix 1, §§ 3.00-3.14. In
addition, although the ALJ acknowledged some evidence of
asthma, including Mr. Krouse's testimony that he
“has wheezing after walking less than one block”
and has “used inhalers in the past, ” (Tr. 34),
the record also reflects that Mr. Krouse “no longer
takes medications for asthma, ” (Tr. 34, 36), that Mr.
Krouse experienced “only one emergency room visit for
asthma, ” (Tr. 36), that “lung examinations have
been within normal limits, ” id., and that
“[c]hest X-rays showed no evidence of acute
cardiopulmonary disease, ” id. Moreover, Mr.
Krouse fails to suggest which specific subsidiary listings
under Listing 3.00 should have been discussed, or to assert
that he met their criteria. Accordingly, the record does not
contain ample evidence to require the ALJ to identify and
evaluate any of the subsidiary listings under Listing 3.00.
Therefore, the ALJ's Step Three analysis was proper, and
remand on this basis is not warranted.
Mr. Krouse relies on Kosisky to argue that the
“identification of a specific listing indicates that
there is ample evidence that the claimant might meet the
listing.” Kosisky v. Comm'r, Soc. Sec.
Admin., No. SAG-15-2403, 2016 WL 2588164, at *5 (D. Md.
May 4, 2016). However, this Court has repeatedly held that
the mention of a category of listings does not, by itself,
trigger an ALJ's duty to evaluate each listing in the
category. See, e.g., Torres v.
Comm'r, Soc. Sec. Admin., No.
SAG-15-3294, 2016 WL 5108022, at *2 (D. Md. Sept. 20, 2016);
Rawls v. Comm'r, Soc. Sec., No.
JFM-15-1609, 2016 WL 3087450, at *2 (D. Md. June 2, 2016);
Sterrette v. Comm'r, Soc. Sec. Admin.,
No. SAG-15-1850, 2016 WL 953225, at *2 (D. Md. Mar. 11,
2016); Manigo v. Comm'r, Soc. Sec.
Admin., No. CV SAG-15-1065, 2016 WL 778363, at *4 (D.
Md. Feb. 26, 2016); Ramos-Rodriguez v.
Comm'r, Soc. Sec. Admin., No. CIV.
SAG-12-3766, 2013 WL 5883808, at *4 (D. Md. Oct. 30, 2013);
Cash v. Comm'r, Soc. Sec. Admin., No.
CIV. SAG-13-0573, 2013 WL 5525874, at *2 (D. Md. Oct. 2,
2013). Indeed, a contrary conclusion would undercut the
Fourth Circuit's holding in Cook that
“ALJs discuss a specific listing only when the claimant
marshals ‘ample evidence' that an impairment
actually meets the criteria for that listing.”
Fletcher, 2016 WL 915196, at *10 (discussing
Cook). For example, in this case, assuming Mr.
Krouse were correct, the ALJ's reference to Listing 3.00
would mandate a detailed analysis of eight Listing
subsections, including chronic respiratory disorder, cystic
fibrosis, bronchiectasis, chronic pulmonary hypertension,
lung transplantation, and respiratory failure, despite the
absence of any such diagnoses in Mr. Krouse's medical
record. See Mills v. Colvin, No. 5:13-CV432-FL, 2014
WL 4055818, at *4 (E.D. N.C. Aug. 14, 2014) (rejecting
contention “that the ALJ erred by not discussing
applicability of listings at step three” because she
“d[id] not cite to any evidence” that would
satisfy the “requirements” of the listings).
Moreover, the Fourth Circuit's recent decision in
Patterson v. Comm'r of Soc. Sec.
Admin., No. 15-2487, 2017 WL 218855 (4th Cir. Jan. 19,
2017) further undermines Mr. Krouse's argument. There,
the Court remanded because the ALJ failed to follow the
special technique required when evaluating a claimant's
mental impairments. Id. Notably, the Court found
that “the ALJ's lack of explanation require[d]
remand, ” and that the ALJs failure to “[s]how
[his] work…rendered his decision unreviewable.”
Id. at *6. Applied here, Patterson counsels
against finding that any mention of a category of listings
triggers an ALJ's duty to evaluate each listing within
that category because such a rule would disincentivize ALJs
to “show [their] work” by indicating which
categories they reviewed. The Fourth Circuit has been clear
that ALJs should provide more explanation of their analysis,
not less. Accordingly, the ALJ's Step Three Listing
analysis was proper, and summary judgment in the
Commissioner's favor was appropriate. Therefore, Mr.
Krouse's Motion to Reconsider is denied.
reasons set forth herein, Mr. Krouse's Motion to
Reconsider, (ECF No. 22), is DENIED. The Commissioner's
judgment is AFFIRMED pursuant to sentence four of 42 U.S.C.
the informal nature of this letter, it should be flagged as