Nicholas Pasiak v. Comm'r of Soc. Sec.

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0603n.06

No. 19-1212

UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 09, 2019
DEBORAH S. HUNT, Clerk
NICHOLAS PASIAK, )
)
ON APPEAL FROM THE
Plaintiff-Appellant, )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
v. )
DISTRICT OF MICHIGAN
)
COMMISSIONER OF SOCIAL SECURITY, )
OPINION
)
Defendant-Appellee. )

BEFORE: McKEAGUE, BUSH, and NALBANDIAN, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Nicholas Pasiak appeals from the district court’s order

affirming the decision of an Administrative Law Judge (“ALJ”) that Pasiak is not eligible for

child’s insurance benefits pursuant to 42 U.S.C. § 402(d) and 20 C.F.R. § 404.350. We hold that

(1) the ALJ did not abuse her discretion in declining to obtain an additional medical expert opinion

and rejecting Pasiak’s requests to enter additional expert testimony into the record; but, (2) the

record nonetheless raises a “substantial question” as to whether Pasiak could qualify as disabled

under Listing 3.04(C) in Appendix 1 of Subpart P of 20 C.F.R. § 404. Therefore, we REVERSE

and REMAND to the ALJ for further proceedings consistent with this opinion.

I.

In 2014, Pasiak, then thirty-three years of age, applied for disability benefits pursuant to

20 C.F.R. § 404.350. An applicant is eligible for such benefits, known as “child’s benefits,”

20 C.F.R. § 404.350, or “child’s insurance benefits,” 42 U.S.C. § 402(d), if several criteria are met.
No. 19-1212, Pasiak v. Comm’r of Soc. Sec.

See 20 C.F.R. § 404.350(a)(1)–(5). As relevant here, if the applicant is over eighteen, the applicant

must “have a disability that began before [he] became 22 years old.” Id. § 404.350(a)(5).

The Social Security Administration (“SSA”) has a five-step sequential evaluation process

for determining whether an individual is disabled. 20 C.F.R. § 404.1520(a)(1). The first three

steps involve evaluating (1) whether the claimant is engaging in work that constitutes “substantial

gainful activity,” (2) the “medical severity” of the claimant’s impairment, and (3) whether the

impairment “meets or equals” a listed impairment in Appendix 1 of Subpart P of 20 C.F.R. § 404.

Id. § 404.1520(a)(4)(i)–(iii). A claimant is considered “disabled” if he satisfies these first three

steps. If a claimant’s impairment does not meet or equal a listed impairment, however, the ALJ

will move on to steps four and five, under which a claimant may still be able to establish that he is

“disabled.” Id. § 404.1520(e). Steps four and five involve evaluating (4) whether the impairment

prevents the claimant from returning to “past relevant work,” and (5) whether the claimant is able

to “make an adjustment to other work.” Id. § 404.1520(a)(4)(iv)–(v). If the claimant satisfies

neither steps one through three nor steps four and five, then the claimant is not “disabled” within

the meaning of the regulations. Id. § 404.1520(a)(4).

Applying the five-step disability analysis, the ALJ found that Pasiak was not disabled prior

to December 10, 2002, the date Pasiak turned twenty-two. At step one, the ALJ found that Pasiak

had not engaged in substantial gainful activity since October 19, 1998, the alleged onset date of

his disability. At step two, the ALJ found that, prior to attaining age twenty-two, Pasiak’s

inflammatory bowel disease, chronic sinusitis, bronchial asthma, chronic interstitial disease, cilia

syndrome and Otitis media were “severe” within the meaning of the regulations. However, at step

three, with no discussion of any facts or specific listings, the ALJ concluded that Pasiak’s

impairments singly or in combination did not meet or medically equal one of the listings in

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Appendix 1 of Subpart P of 20 C.F.R. § 404. At step four, the ALJ found that Pasiak could not

perform any past relevant work, but at step five, the ALJ denied Pasiak benefits because she found

that there were jobs that exist in significant numbers in the national economy that Pasiak could

perform.

Pasiak requested a review of the ALJ’s decision. The ALJ’s decision became the final

decision of the Commissioner when the Appeals Council denied Pasiak’s request for review.

Pasiak then appealed to the district court. After full briefing by the parties, a magistrate judge

issued a Report and Recommendation affirming the Commissioner’s decision. The district court

then adopted that recommendation over Pasiak’s objections, and judgment was entered in

September 2018. Pasiak filed a timely notice of appeal.

II.

Pasiak advances two arguments on appeal: first, that the ALJ erred in failing to order and

admit additional medical expert testimony to assist in evaluating the evidentiary record; and

second, that the ALJ erred in concluding that, under step three of the five-step disability analysis,

Pasiak did not have an impairment or combination of impairments that met or medically equaled

the severity of one of the listed impairments in Appendix 1 of Subpart P of 20 C.F.R. § 404. Pasiak

asks us to vacate the ALJ’s decision and remand with orders to the ALJ to give further

consideration to step three of the five-step disability analysis, and to use additional medical expert

testimony in evaluating the medical evidentiary record. Alternatively, Pasiak asks us to reverse

and issue him a fully favorable decision ourselves. We will address Pasiak’s arguments in turn.

A. ALJ’s Refusal to Order and Admit Additional Medical Expert Opinion

Pasiak first claims that the ALJ erred when she rejected his requests to enter additional

expert testimony into the record and order additional medical expert opinion. “An ALJ has

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discretion to determine whether further evidence, such as additional testing or expert testimony, is

necessary.” Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (citing 20 C.F.R. §§ 404.1517,

416.917). We review the ALJ’s decision for abuse of discretion. Id. at 356.

Pasiak complains that the ALJ failed to take into consideration any of the medical records

he submitted after October 14, 2014. But, most of those records are not relevant to the period in

question, and the ones that are relevant to the period in question are cumulative of the evidence

considered by the state agency physician. And given that there was ample evidence on Pasiak’s

impairments in the record for the ALJ to evaluate his disability, the ALJ’s election not to request

a second medical expert opinion was not an abuse of discretion. See id. (“Given that there was

already sufficient testimony on Foster’s impairments in the record for the ALJ to evaluate her

mental condition and residual functional capacity, the ALJ did not abuse his discretion in denying

Foster’s requests for additional testing or expert testimony.”).

B. ALJ’s Step-Three Analysis

When considering whether a claimant’s impairment “meets or equals” a listed impairment

in the appendix of the regulations, we have held that an ALJ is required to “actually evaluate the

evidence, compare it to [the relevant listed impairment], and give an explained conclusion, in order

to facilitate meaningful judicial review. Without it, it is impossible to say that the ALJ’s decision

at step three was supported by substantial evidence.” Reynolds v. Comm’r of Soc. Sec., 424 F.

App’x 411, 416 (6th Cir. 2011). We have also held that “the ALJ need not discuss listings that the

applicant clearly does not meet. . . . If, however, the record ‘raise[s] a substantial question as to

whether [the claimant] could qualify as disabled’ under a listing, the ALJ should discuss that

listing.” Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013) (first alteration

added) (quoting Abbott v. Sullivan, 905 F.2d 918, 925) (6th Cir. 1990)). Therefore, to decide

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whether the ALJ erred in her cursory step-three analysis, we must determine whether the record

raises a “substantial question” as to whether Pasiak could qualify as disabled under one of the

listings in Appendix 1 of Subpart P of 20 C.F.R. § 404.1 If so, the ALJ’s failure to discuss that

listing would constitute reversible error. See Reynolds, 424 F. App’x at 416.

“A claimant must do more than point to evidence on which the ALJ could have based his

finding to raise a ‘substantial question’ as to whether he satisfied a listing.” Smith-Johnson v.

Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014) (quoting Sheeks, 544 F. App’x at 641–

42). “Rather, the claimant must point to specific evidence that demonstrates he reasonably could

meet or equal every requirement of the listing.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530

(1990)). “Absent such evidence, the ALJ does not commit reversible error by failing to evaluate

a listing at Step Three.” Id. at 433.

On appeal, Pasiak contends that he demonstrated that he reasonably could meet or equal

listings 3.04(B), 3.04(C), and 5.06.2 We agree with the district court that Pasiak has not pointed

1
At step three, the ALJ summarily stated:
The medical evidence does not include findings that would satisfy the applicable
listings for any of the severe impairments that are documented. No treating or
examining physician has recorded findings equivalent in severity to the criteria of
any listed impairment, nor does the evidence show medical findings that are the
same or equivalent to those of any listed impairment of the Listing of Impairments.
The Commissioner conceded that this conclusion, which omitted discussion of any facts or
specific listings, was legal error. (Appellee Brief at 11). The district court did not bind
itself to the Commissioner’s concession. Neither do we. “We are not bound to accept, as
controlling, stipulations as to questions of law.” Sanford’s Estate v. Comm’r of Internal
Revenue, 308 U.S. 39, 51 (1939) (citation omitted); Neuens v. City of Columbus, 303 F.3d
667, 670 (6th Cir. 2002).
2
Pasiak also suggests that his conditions met the criteria in Listings 3.02, 3.03, 3.07, and
14.07, (see Appellant Brief at 17, 25), but he does not develop this argument. The argument is
therefore forfeited. McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (alterations in
original) (citations omitted) (“[I]ssues adverted to in perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed [forfeited]. It is not sufficient for a party to mention
a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”).

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to specific evidence demonstrating that he had a listed disability as described in Listings 3.04(B)

and 5.06 before turning twenty-two. But we disagree with the district court with regards to Listing

3.04(C), and find that Pasiak has pointed to specific evidence demonstrating that he reasonably

could meet or equal the criteria for disability under that Listing. We will discuss these three

Listings below.

1. Listing 3.04(B)

To meet the criteria for disability under Listing 3.04(B), a claimant must show:
Episodes of bronchitis or pneumonia or hemoptysis (more than blood-streaked
sputum) or respiratory failure (documented according to 3.00C), requiring
physician intervention, occurring at least once every 2 months or at least six times
a year. Each inpatient hospitalization for longer than 24 hours or treatment counts
as two episodes, and an evaluation period of at least 12 consecutive months must
be used to determine the frequency of episodes[.]

20 C.F.R. pt. 404, subpt. P, app. 1 § 3.04(B) (2016).3 In support of Pasiak’s argument that he

meets or equals Listing 3.04(B), Pasiak relies upon fifteen doctor’s visits between December 1998

and December 1999. (Appellant Brief at 22). The vast majority of these doctor’s visits, however,

did not constitute “requir[ed] physician intervention” due to “[e]pisodes of bronchitis or

pneumonia or hemoptysis (more than blood-streaked sputum) or respiratory failure.” 20 C.F.R.

3
Listings 3.04(B) and (C) were revised on June 9, 2016. See Revised Medical Criteria for
Evaluating Respiratory System Disorders, 81 Fed. Reg. 37,138, 37,148 (June 9, 2016) (codified at
20 C.F.R. pt. 404, subpt. P, app. 1 §§ 3.04(B)–(C)). But, we will review the Commissioner’s final
decision using the Listing that was in effect on April 11, 2016, the time the Commissioner issued
the final decision in Pasiak’s case. See Revised Medical Criteria for Evaluating Respiratory
System Disorders, 81 Fed. Reg. at 37,139 n.3 (“We expect that Federal courts will review our final
decisions using the rules that were in effect at the time we issued the decisions.”).
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pt. 404, subpt. P, app. 1 § 3.04(B) (2016). Pasiak relies on the contents of these doctor’s visits to

support his qualification under Listing 3.04(B):

• On December 17, 1998, for a “[r]echeck,” where an impression of bronchiectasis
was noted. But, the doctor also noted that Pasiak’s lungs were “[c]lear” and
functioning normally.4
• On January 13, 1999, because he “[d]idn’t feel well” and had “[s]ome chest
tightness.” There was a mild increase in respiratory effort and mild decrease in air
exchange. The physician diagnosed “viral syndrome” and prescribed Cipro and
Bioxin.
• On January 25, 1999, when Pasiak reported that he was “doing well” and that his
“lungs ‘feel’ better.”
• On February 17, 1999, when he reported that he was “doing very well with asthma
. . . [g]ood exercise tolerance” and his lungs were “[c]lear.”
• On March 13, 1999, when he presented with chest congestion, cough, and yellow
sputum. He had rhonchi and a mild decrease in air exchange. He was assessed
with, among other things, interstitial cystitis, ulcerative colitis, chronic sinusitis,
and acute exacerbation of bronchitis.
• On March 29, 1999, when his lungs were “[c]lear” and he reported that he “[h]as
been fine this past week.”
• On April 7, 1999, when he presented with moderate rhonchi and wheezes, mild
increase in respiratory effort, and moderate decrease in air exchange. The physician
prescribed increased use of Flovent and increased intake in fluids and Tylenol.
• On April 26, 1999, when he reported that his lungs were “[c]lear” and respiratory
effort “[n]ormal.”
• On May 17, 1999, when he had a “stuffy nose” but reported that his lungs were
“[c]lear” and respiratory effort “[n]ormal.”
• On June 28, 1999, when he reported that he was “[d]oing very well.”
• On July 23, 1999, when he reported that his lungs were “[c]lear” and respiratory
effort “[n]ormal.”
• On August 11, 1999, when he reported that the sinusitis had resolved and he was
feeling “well.”
• On August 18, 1999, when he reported that he had some pain after a wisdom tooth
extraction.
• On October 7, 1999, when he was diagnosed with pneumonia and was prescribed
Z-Pak.5

4
Pasiak refers to a December 11, 1998 note that does not appear to be in the record.
(Appellant Brief at 22, 26).
5
Pasiak refers to a September 17, 1999 note that does not appear to be in the record.
(Appellant Brief at 22, 26).

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• On November 6, 1999, when the only lung notation was rhonchi in the right lung,
but where he reported that his respiratory effort was “[n]ormal,” that he “feels
better,” and that he was feeling some pain from a car accident.

(R. 9-8 at PageID 384–400).

Of these fifteen doctor’s visits, only four, at best, demonstrate episodes of bronchitis and/or

pneumonia as required by Listing 3.04(B): (1) the January 13 visit; (2) the March 13 visit; (3) the

April 7 visit; and (4) the October 7 visit.6 But even assuming these visits qualify as “requir[ed]

physician intervention” under Listing 3.04(B), they do not reflect an occurrence rate of every two

months or at least six in a year, as required by the Listing. 20 C.F.R. pt. 404, subpt. P, app. 1

§ 3.04(B) (2016). Thus, the foregoing medical evidence from December 1998 to December 1999

does not raise a substantial question as to whether Pasiak met the criteria in Listing 3.04(B). See

Smith-Johnson, 579 F. App’x at 432 (quoting Sullivan, 493 U.S. at 530) (emphasis in original)

(“For a claimant to show that his impairment matches a listing, it must meet all of the specified

medical criteria. An impairment that manifests only some of the criteria, no matter how severely,

does not qualify.”); Sheeks, 544 F. App’x at 641–42 (finding that claimant did not raise a

substantial question as to satisfying a listing where claimant pointed to only a few pieces of tenuous

evidence addressing the listing).

6
These four doctor’s visits do not demonstrate episodes of “respiratory failure” under
3.04(B) and 3.00(C) because the episodes did not require “intensive treatment,” including
“antibiotic administration” in a “hospital, emergency room or equivalent setting.” 20 C.F.R. pt.
404, subpt. P, app. 1 § 3.00(C) (2016). When Pasiak was prescribed an antibiotic for respiratory
issues—in January and October of 1999, for instance—there is no indication that the antibiotic
was administered anywhere but at home. Home does not seem to be an “equivalent setting” to a
hospital or an emergency room. Id. Also, there is no indication in the record that Pasiak ever had
hemoptysis. Instead, the record indicates, “[t]here has been no hemoptysis.” (R 9-9 at PageID
510).
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2. Listing 5.06

To meet Listing 5.06, a claimant must show:
A. Obstruction of stenotic areas (not adhesions) in the small intestine or colon with
proximal dilatation, confirmed by appropriate medically acceptable imagining or
in surgery, requiring hospitalization for intestinal decompression or for surgery, and
occurring on at least two occasions at least 60 days apart within a consecutive
6-month period;
OR
B. Two of the following despite continuing treatment as prescribed and occurring
within the same consecutive 6-month period:
1. Anemia with hemoglobin of less than 10.0g/dL, present on at least two
evaluations at least 60 days apart; or
2. Serum albumin of 3.0g/dL or less, present on at least two evaluations at least
60 days apart; or
3. Clinically documented tender abdominal mass palpable on physical examination
with abdominal pain or cramping that it is not completely controlled by prescribed
narcotic medication, present on at least two evaluations at least 60 days apart; or
4. Perineal disease with a draining abscess or fistula, with pain that is not
completely controlled by prescribed narcotic medication, present on at least two
evaluations at least 60 days apart; or
5. Involuntary weight loss of at least 10 percent from baseline, as computed in
pounds, kilograms, or BMI, present on at least two evaluations at least 60 days
apart; or
6. Need for supplemental daily enteral nutrition via a gastrostomy or daily
parenteral nutrition via a central venous catheter.

20 C.F.R. pt. 404, subpt. P, app. 1 § 5.06 (2016). As to the A criteria of this Listing, Pasiak has

pointed us to no evidence in the record demonstrating any “[o]bstruction of stenotic areas . . .

requiring hospitalization for intestinal decompression or for surgery.” Id. Pasiak indicates that he

was hospitalized for asthma exacerbation and ulcerative colitis exacerbation in September 2000,

but he did not require any surgery or intestinal decompression at that time.

Regarding the B criteria, Pasiak has not pointed to any evidence of anemia, a serum

albumin level of 3.0 g/dL or less, tender abdominal mass, perineal disease with a draining abscess

or fistula (indeed, Pasiak denied any history of fistula, perineal disease, or abscess, or involuntary

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weight loss of at least ten percent from his baseline before December 10, 2002. Pasiak did go

through a period of taking daily supplemental enteral nutrition between September and October of

2000. However, because Pasiak did not experience any of the other B criteria, he did not raise a

substantial question as to whether he met the Listing. See 20 C.F.R. pt. 404, subpt. P, app. 1

§ 5.06(B) (2016) (requiring “[t]wo of the following” criteria to be met).

3. Listing 3.04(C)

To meet Listing 3.04(C), a claimant must show:
Persistent pulmonary infection accompanied by superimposed, recurrent,
symptomatic episodes of increased bacterial infection occurring at least once every
6 months and requiring intravenous or nebulization antimicrobial therapy.

20 C.F.R. pt. 404, subpt. P, app. 1 § 3.04(C) (2016).

Pasiak referred us to five arguable episodes of pulmonary infection, as demonstrated by

(1) the January 13 doctor’s visit, (2) the March 13 doctor’s visit, (3) the April 7 doctor’s visit,

(4) the October 7 doctor’s visit, and (5) a hospitalization in September 2000, when he was treated

with nebulized bronchodilators and steroids for asthma exacerbation. There is no dispute that the

first four episodes occurred within six months of each other. There is also no dispute that Pasiak

regularly received Intravenous Immunoglobulin (“IVIG”), a form of intravenous antimicrobial

therapy, before turning twenty-two.

The magistrate judge’s Report and Recommendation, adopted by the district court,

concluded that the medical evidence does not raise a substantial question as to whether Pasiak

meets or equals the C criteria. The magistrate judge discounted the fact that Pasiak regularly

received IVIG, reasoning that “it does not appear that these infusions were required, as plaintiff

voluntarily elected to stop the treatment at times due to time constraints.” (R. 16 at PageID 1250)

(emphasis in original).

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Although it is true that Listing 3.04(C) demands that the IVIG be “requir[ed],” 20 C.F.R.

pt. 404, subpt. P, app. 1 § 3.04(C) (2016), and although it is true that Pasiak voluntary elected to

stop the IVIG due to “time constraints,” (R. 9-8 at PageID 412), Pasiak has nonetheless raised a

substantial question as to whether he satisfies the criteria in Listing 3.04(C). We have yet to define

what “requiring intravenous . . . therapy” means in the context of Listing 3.04(C), and the ALJ did

not address the issue. There are at least two plain meanings of “requiring” according to the

dictionary: (1) “demand[ing] as necessary or essential” (the magistrate judge’s understanding), and

(2) “call[ing] for as suitable or appropriate.”7 See Tenn. Hosp. Assoc. v. Azar, 908 F.3d 1029, 1044

(6th Cir. 2018) (courts interpret regulations according to their plain meaning); see also United

States v. Bedford, 914 F.3d 422, 427 (6th Cir. 2019) (dictionaries often supply plain meaning).

Under either understanding, Pasiak’s voluntary cessation of IVIG treatment does not necessarily

mean that the treatment was not required. After all, at a doctor’s visit on May 22, 2000, Pasiak’s

doctor stated as part of Pasiak’s treatment “PLAN” that “[Pasiak] should cont. h[is] IV infusions

every month.” (R. 9-8 at PageID 404). Just because Pasiak elected not to follow the doctor’s

orders does not necessarily mean that the doctor’s orders were not required within the meaning of

Listing 3.04(C). Thus, the district court erred in holding that Pasiak did not raise a substantial

question as to whether he met the criteria under Listing 3.04(C). See Reynolds, 424 F. App’x at

416 (holding that an ALJ’s failure to evaluate a listing a step three was reversible error when it

was “possible that the evidence Reynolds put forth could meet [the] listing.”). We leave it to the

ALJ to consider in the first instance what “requiring . . . intravenous therapy” means and whether

Pasiak required such therapy.

7
Require, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/
require (last visited Dec. 4, 2019).
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III.

Because the record raises a “substantial question” as to whether Pasiak could qualify as

disabled under Listing 3.04(C), we REVERSE and REMAND to the ALJ for further proceedings

consistent with this opinion.

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