United States District Court, N.D. Ohio, Western Division
Misti S. Wagner, Plaintiff
Commissioner of Social Security, Defendant
G. Carr Sr., U.S. District Judge
a Social Security case in which the plaintiff, Misti Wagner,
appeals from the Commissioner's decision denying her
application for benefits.
administrative law judge concluded that Wagner suffers from
multiple severe impairments, including, inter alia,
coronary artery disease, chronic obstructive pulmonary
disease, carotid artery disease, and peripheral vascular
disease. (Doc. 11 at 28). But the ALJ determined, insofar as
is relevant here, that Wagner did not meet or medically equal
the criteria for Listing 4.02 - Chronic Heart Failure, and
thus was not disabled. (Id. at 34).
is Magistrate Judge Parker's Report and Recommendation,
which recommends that I affirm the Commissioner's
decision. (Doc. 14).
to the Magistrate Judge, the ALJ properly concluded that
Wagner did not meet or medically equal Listing 4.02. A
claimant may qualify as disabled under that Listing, the
Magistrate Judge explained, if she establishes, under
paragraph (A) of the Listing, systolic failure by means of
“ejection fraction of 30 percent or less during a
period of stability.” 20 C.F.R. Pt. 404, Subpt. P, App.
The ALJ recognized that, during a stress test in September,
2015, Wagner displayed an ejection fraction of 27%. (Doc. 11
at 34). But the Magistrate Judge ruled that the ALJ
reasonably explained why that evidence was insufficient under
the ALJ noted that Wagner's ejection fraction had been
consistently estimated at above 30% with the exception of a
single stress test. The ALJ further noted that a
[transthoracic echocardiography] performed on the same day as
the stress test returned an estimated ejection fraction of
40%. These findings mirrored the record evidence and,
therefore, provide substantial evidence supporting the
ALJ's decision. Wagner has not argued otherwise. Nor has
she cited any authority supporting her argument that a single
ejection fraction reading below 30% requires an ALJ to reject
several other ejection fraction readings or estimates that
were above 30%. Here, as noted above, one of the ejection
fraction estimates of 40% was made on the same day as the
stress test showing ejection fraction of 27%. Thus, Wagner
cannot argue that all of the ejection fractions above 30%
were outdated or stale. Rather, it appears that the ALJ, in
his effort to consider all the medical evidence - something
he was obligated to do - concluded that the 27% reading did
not represent Wagner's true condition.
(Doc. 14 at 15) (internal citation omitted).
Magistrate Judge went on to find that, even assuming that
Wagner had satisfied paragraph (A), she had not satisfied the
remaining criteria under paragraph (B) of the Listing.
(Id. at 15-16); see also Roach v. Comm'r of
Soc. Sec., 2018 WL 897114, *6 (S.D. Ohio) (Preston
Deavers, J.) (paragraph (B) requires claimant to establish
either persistent symptoms of heart failure, three or more
episodes of acute congestive heart failure within a
consecutive, twelve-month period, or an inability to perform
on an exercise tolerance test).
has filed an objection (Doc. 15) and, on de novo review of
the R&R, see 28 U.S.C. § 636(b), I overrule
the objection, adopt the R&R as the order of the court,
and affirm the Commissioner's decision.
Wagner objects only to the Magistrate Judge's decision
that her ejection fraction reading did not satisfy paragraph
(A) of the Listing. (Doc. 15 at 1-2). But to prove that she
is disabled under Listing 4.02, Wagner must also satisfy one
of the three criteria under paragraph (B). (Doc. 14 at
15-16); Roach, supra, 2018 WL 897114 at *6.
Because Wagner's objection does not make such an
argument, I need not even consider her objection that she
satisfied paragraph (A).
and in any event, I agree with Magistrate Judge Parker that
the ALJ reasonably concluded that the single ejection
fraction reading of 27% was, in this case, insufficient to
satisfy paragraph (A).
the ALJ and the Magistrate Judge explained, with the
exception of the September, 2015, reading, Wagner's
ejection fraction readings consistently reached 30% or
higher. Furthermore, there was reason to question the
September, 2015 reading: “this estimate was not
consistent with prior or contemporaneous testing, including a
transthoracic echocardiography” - taken the same day -
“which showed an ejection fraction of 40%.” (Doc.
11 at 34).
to the extent Wagner challenges the ALJ's failure to
order a consultative examination or call a medical expert at
the hearing, the argument lacks merit. Wagner never asked
that the ALJ consult a medical examiner (Doc. 14 at 17), and
she did not argue before the Magistrate Judge that the ALJ
erred by not ordering a consultative examination (Doc. 12 at
1-10). And as Magistrate Judge Parker explained, even if
Wagner had requested the ALJ ...