ORDER

JAMES G. CARR, SR., District Judge.

This is a Social Security case in which the plaintiff, Misti Wagner, appeals from the Commissioner's decision denying her application for benefits.

An 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).

Pending is Magistrate Judge Parker's Report and Recommendation, which recommends that I affirm the Commissioner's decision. (Doc. 14).

According 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. 1.1 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 Listing:

(Doc. 14 at 15) (internal citation omitted).

The 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).

Wagner 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.

First, 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).

Second, 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).

As both 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).

Finally, 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 to consult an expert, it would have been a reasonable exercise of the ALJ's discretion not to do so. (Doc. 14 at 18-19).

Conclusion

It is, therefore,

ORDERED THAT:

1. Wagner's objection to the Report and Recommendation be, and the same hereby is, overruled;

2. The Report and Recommendation (Doc. 15) be, and the same hereby is, adopted as the order of the court; and

3. The Commissioner's decision be, and the same hereby is, affirmed.

So ordered.

REPORT & RECOMMENDATION

I. Introduction

Plaintiff, Misti S. Wagner, seeks judicial review of the final decision of the Commissioner of Social Security denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act ("Act"). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

Because substantial evidence supports the ALJ's decision and because Wagner has failed to identify any error of law in the ALJ's evaluation of her claim, I recommend that the final decision of the Commissioner be AFFIRMED.

II. Procedural History

On July 17, 2013, Wagner filed concurrent applications for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI") alleging disability beginning on December 27, 2012. (Tr. 214-221) The claims were denied initially on October 7, 2013 (Tr. 77-104) and on reconsideration on April 4, 2014. (Tr. 107-135) Wagner requested a hearing on May 12, 2014. (Tr. 169-170)

Administrative Law Judge ("ALJ") K. Michael Foley heard the case on December 8, 2015. (Tr. 42-75) On January 20, 2016, the ALJ issued a decision finding Wagner not disabled. (Tr. 15-28) The Appeals Council denied Wagner's request for review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-6) Wagner instituted this action on February 5, 2017 seeking judicial review of that decision. (ECF Doc. 1)

III. Evidence

A. Personal, Educational and Vocational Evidence

Wagner was born on February 7, 1970. (Tr. 214) She has a limited education and past relevant work as an assistant club manager. (Tr. 113, 128)

B. Medical Evidence1

Wagner suffered a heart attack and received inpatient hospital care from December 30, 2011 to January 14, 2012. (Tr. 292) Cardiac catheterization revealed 100% occlusion on the left anterior coronary artery and 90% occlusion of the right coronary artery. (Tr. 292, 302, 316) Wagner underwent a quadruple bypass surgery with coronary artery grafting. (Tr. 292) The hospital discharged Wagner in stable condition, with a restriction on her ability to engage in heavy lifting and driving. (Tr. 293)

On February 14, 2012, Wagner followed up with Ronald Pohl, M.D., one of the treating surgeons. Wagner denied any chest pain or shortness of breath. Dr. Pohl felt that Wagner was doing well and that she could return to work once she passed her stress test. (Tr. 1165) The exercise stress test performed on February 21, 2012 resulted in a non-ischemic electrocardiographic response. However, Wagner demonstrated evidence of deconditioning and diminished exercise tolerance. (Tr. 409)

Wagner attended cardio rehabilitation in March and April 2012. (Tr. 449, 433) In March, she denied any lower leg pain while walking on the treadmill and she was able to increase her duration and pace. (Tr. 449) In April, she felt better than she had in a year; she had improved endurance, energy level and strength. She was able to do more around the house and walk her dog for thirty minutes a day. (Tr. 433)

On April 26, 2012, Wagner complained of burning in her legs. (Tr. 405) An arterial blood flow evaluation showed suspected left arterial stenosis. (Tr. 406) An echocardiograph showed ejection fraction2of 40%. (Tr. 407)

A CT scan of Wagner's abdominal aorta and lower extremities on June 8, 2012 showed plaque through the distal aorta and 50% stenosis of the SMA and renal arteries. (Tr. 779-780) A carotid ultrasound in July 2012 confirmed the diagnosis of peripheral vascular disease. Ronald McGee, M.D., Wagner's treating vascular surgeon, recommended an angiogram with possible stenting. (Tr. 1111-1114) On August 2, 2012, Wagner underwent an angiography and angioplasty of her subclavian arteries. (Tr. 824-826)

On August 16, 2013, Wagner complained of back pain and leg swelling. Dr. McGee recommended that Wagner have an angiogram of the left lower extremity with possible arthrectomy, angioplasty, and or stenting. (Tr. 1116) On August 29, 2012, Wagner underwent this surgery. (Tr. 820-823) Following the procedure, Wagner's pain was markedly improved and she was walking better. (Tr. 1117)

On October 8, 2012, a left lower extremity arterial duplex evaluation showed no evidence of significant peripheral vascular disease and Wagner's left lower extremity arterial system appeared patent. (Tr. 910)

On March 3, 2013, a bilateral carotid ultrasound showed that Wagner had 30-39% plaque in her right carotid artery, and 80-99% high-grade stenosis in her left carotid artery. (Tr. 790-791) However, she denied chest pain, dizziness, fatigue, palpitations and shortness of breath during a follow-up evaluation on March 7, 2013. (Tr. 773) She was asymptomatic at a followup appointment on March 18, 2013. (Tr. 1121)

On March 27, 2013, Wagner underwent surgery for her left carotid artery stenosis. (Tr. 845-847) On April 3, 2013, a left lower extremity arterial duplex evaluation showed no evidence of significant stenosis in the left lower extremity. (Tr. 907) On June 12, 2013, a carotid ultrasound was negative for significant carotid artery stenosis. (Tr. 1303)

A carotid arterial duplex evaluation on October 28, 2013 showed mild plaque disease but no convincing evidence of carotid stenosis. (Tr. 1299-1300) A Doppler Ultrasound of Wagner's lower extremities returned normal results. (Tr. 1301-1302)

A transthoracic echocardiography on November 19, 2013 showed an estimated ejection fraction of 35-40%. (Tr. 1144) At a follow-up appointment on November 27, 2013, Wagner reported no new cardiac complaints. (Tr. 1153) A 30-day cardiac scan from December 30, 2013 to January 28, 2014 revealed no evidence of ventricular tachycardia. (Tr. 1319)

A carotid Doppler ultrasound on May 12, 2014 showed no significant change from the June 12, 2013 study. (Tr. 1296)

An arteriography and angiography on December 2, 2014 showed marked improvement of Wagner's vascular disease after her surgeries. (Tr. 1346)

On December 18, 2014, Wagner complained of chest pain, shortness of breath and palpitations. (Tr. 1315) Paul Anike, M.D., one of Wagner's treating cardiologists, recommended an ultrasound for reevaluation of ejection fraction and stress testing. (Tr. 1317-1318) A stress test on December 29, 2014 showed left ventricular ejection fraction of 33%. (Tr. 1329) A transthoracic echocardiography (TTE) was limited but ejection fraction was visually estimated to be 40-45%. (Tr. 1335)

A cardiac monitor worn by Wagner from January 16, 2015 to January 29, 2015 showed no evidence of ventricular tachycardia. (Tr. 1327)

On September 10, 2015, Wagner complained of chest pain and dyspnea. A stress test showed an "ejection fraction of 27% persistently dilated left ventricle, but moderate hypokinesis." (Tr. 1325) Gated SPECT imaging revealed submaximal thickening of the distal anterior apical and basolateral wall. The study concluded:

(Id.) However, a TTE performed on the same date returned a "visually estimated" ejection fraction of 40%. (Tr. 1320)

C. Opinion Evidence

1. Reviewing Physician — Bruce Mirvis, M.D. — October 2013

On October 2, 2013, reviewing state agency physician, Bruce Mirvis, opined that Wagner could perform light work, except that she could only stand/walk a total of 4 hours in an 8-hour workday. (Tr. 86-88)

2. Reviewing Physician — Lynne Torello, M.D. — April 2014

On reconsideration, reviewing state physician, Lynne Torello, M.D., reviewed Wagner's file on April 3, 2014 and affirmed the opinions of Dr. Mirvis. (Tr. 116-118)

D. Testimonial Evidence

1. Wagner's Testimony

Wagner offered the following paraphrased testimony at her ALJ hearing:

2. Vocational Expert — Brian Walmer

Brian Walmer, a vocational expert ("VE"), also testified. (Tr. 69-74)

IV. Standard for Disability

Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(a). Furthermore:

In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations, paraphrased as follows:

20 C.R.F. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). Under this sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v. Comm'r of Soc. Sec. 127 F.3d 525, 529 (6thCir. 1997). The burden shifts to the Commissioner at Step Five to produce evidence that establishes whether the claimant has the RFC and vocational factors to perform work available in the national economy. Id.

V. The ALJ's Decision

On January 20, 2016, the ALJ decided:

The ALJ determined that, because substance use disorder was a contributing factor to the determination of disability, Wagner had not been disabled at any time from the alleged onset date through the date of his decision. (Tr. 35)

VI. Law & Analysis

A. Standard of Review

This court's review is limited to determining whether there is substantial evidence in the record to support the ALJ's findings of fact and whether the correct legal standards were applied. See Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6thCir. 2003) ("decision must be affirmed if the administrative law judge's findings and inferences are reasonably drawn from the record or supported by substantial evidence, even if that evidence could support a contrary decision."); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6thCir. 1983). Substantial evidence has been defined as "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6thCir. 2007) (quoting Cutlip v. Sec'y of Health and Human Servs., 25 F.3d 284, 286 (6thCir. 1994).

The Act provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §§ 405(g) and 1383(c)(3). The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6thCir. 2001) (citing Mullen v. Bowen, 800 F.2d 535,545 (6thCir. 1986); see also Her v. Comm'r of Soc. Sec., 203 F.3d 288, 389-90 (6thCir. 1999) ("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached." See Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). This is so because there is a "zone of choice" within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8thCir. 1984).

The court must also determine whether proper legal standards were applied. If not, reversal is required unless the legal error is harmless. See e.g. White v. Comm'r of Soc. Sec. 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6thCir. 2006) ("Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.")

Finally, a district court cannot uphold an ALJ's decision, even if there "is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7thCir. 1996); accord Shrader v. Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (E.D. Mich. Nov. 1, 2012) ("If relevant evidence is not mentioned, the court cannot determine if it was discounted or merely overlooked."); McHugh v. Astrue, No. 1:10-cv-734, 2011 U.S. Dist. LEXIS 141342 (S.D. Ohio Nov. 15, 2011); Gilliams v. Astrue, No. 2:10-CV-017, 2010 U.S. Dist. LEXIS 72346 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-cv-19822010, 2010 U.S. Dist. LEXIS 75321 (N.D. Ohio July 9, 2010).

Wagner asserts two succinct arguments in this appeal. She first contends the ALJ erred in concluding she did not meet the requirements of Listing 4.02. She also contends the ALJ should have obtained an updated medical opinion or medical expert to interpret later-submitted medical evidence rather than interpret it himself.

B. Listing 4.02

Wagner argues that she met or functionally equaled Listing 4.02. "At step three, an ALJ must determine whether the claimant's impairment `meets or is equivalent in severity to a listed . . . disorder.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 653 (6th Cir. 2009) (citing 20 C.F.R. § 1520(d)(2)). In doing so, an ALJ must compare medical evidence with the requirements for listed impairments at step three. May v. Astrue, 2011 U.S. Dist. LEXIS 88551, 11 WL 3490186, at *7 (N.D. Ohio 2011). If a claimant meets or equals the requirements of a listed impairment, then the claimant is considered conclusively disabled. Rabbers, 582 F.3d at 653 (citing § 404.1525(a)). However, it is the claimant's burden to show she meets or equals a listing impairment at step three. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).

There is no "heightened articulation standard" in considering the listing of impairments; rather, the court considers whether substantial evidence supports the ALJ's findings. Snoke v. Astrue, 2012 U.S. Dist. LEXIS 21930, 2012 WL 568986, at *6 (S.D. Ohio 2012) (quoting Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006)). However, the court must find an ALJ's decision contains "sufficient analysis to allow for meaningful judicial review of the listing impairment decision." Snoke, 2012 U.S. Dist. LEXIS 21930, 2012 WL 568986, at *6; see also May, 2011 U.S. Dist. LEXIS 88551, 2011 WL 3490186, at *7 ("In order to conduct a meaningful review, the ALJ's written decision must make sufficiently clear the reasons for his decision.") The court may look to the ALJ's decision in its entirety to justify the ALJ's stepthree analysis. Snoke, 2012 U.S. Dist. LEXIS 21930, 2012 WL 568986, at *6 (citing Bledsoe, 165 F. App'x at 411).

Wagner does not really argue that there was no evidence supporting the ALJ's Listing 4.02 finding. Instead, she points to allegedly contradicting evidence — a September 10, 2015 stress test — which showed gated left ventricular ejection fraction of 27%. The summary report from that test also stated that it was "abnormal" and suggested an intermediate to high risk for myocardial event. (Tr. 1325) Wagner states that she exhibited chest pain and dyspnea during the stress test and that the transthoracic echocardiography report showed impaired relaxation compatible with diastolic dysfunction. (Tr. 1321) She argues that this evidence established that she met Listing 4.02 and that the ALJ erred in determining otherwise. ECF Doc. 12, Page ID# 1630-1631.

Listing 4.02(A) defines disabling chronic heart failure:

20 CFR Pt. 404, Subpt. P, App. 1.

(Tr. 29)

Regarding paragraph (A) of Listing 4.02, 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 TEE 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%. (Tr. 1320) 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.

Moreover, even if Wagner met the paragraph (A) criteria for Listing 4.02, she has not shown that she met one of the criteria for paragraph (B). The ALJ expressly found that Wagner did not meet these criteria. In her brief, Wagner states that she "exhibited chest pain and dyspnea on a September 10, 2015 stress test." This statement suggests that Wagner is arguing that she met the criteria for subparagraph (B)(3)(a), requiring evidence of an "inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or less due to: * * * a. Dyspnea, fatigue, palpitations, or chest discomfort." However, Wagner clearly completed the stress test; and, while the reason for the stress test was chest pain, the report does not otherwise indicate that Wagner was experiencing the symptoms listed in subparagraph (B)(3)(a). (Tr. 1325) Thus, Wagner has not shown that she met the criteria for paragraph (B) of Listing 4.02.

Wagner's argument also glosses over the other portions of the Listing 4.02 requirements which the ALJ addressed. He found no other evidence of systolic or diastolic failure and no evidence of three or more separate episodes of acute congestive heart failure. He also found no evidence of other serious complications in Wagner's physical and cardiac-related functioning, consistent with the Listing. (Tr. 29)

Wagner has not identified any record evidence showing she met her burden of proof regarding all of the requirements of Listing 4.02. She has not shown that the ALJ erred in his analysis of the ejection fraction readings and estimates, and she has not contested the ALJ's other findings on 4.02(A). Nor has she shown that she met one of the criteria under 4.02(B). I recommend that the court affirm the ALJ's decision at Step Three.

C. Interpreting Medical Evidence Not Reviewed by a Medical Expert

Wagner also argues that the ALJ erred by interpreting medical data that had not been reviewed by a medical expert. ECF Doc. 12, Page ID# 1631-1632. Wagner cites several cases in support of this argument. Mitsoff v. Comm'r of Soc. Sec., 940 F.Supp.2d 693, 702 (S.D. Ohio 2013); Smiley v. Comm'r of Soc. Sec., 940 F.Supp.2d 592, 600-601 (S.D. Ohio 2013); Williams v. Massanari, 171 F.Supp.2d 829, 834 (N.D. Ill. 2001); Simpson v. Comm'r of Soc. Sec., 344 Fed.App'x 181, 194 (6thCir. 2009). Yet in each of these cases, the ALJ erred in substituting his opinion in place of a treating physician or, in Williams, for that of a medical examiner.

Here, there was no opinion from a treating physician. Thus, the ALJ did not substitute his opinion in place of the opinion of an individual whose opinion was entitled to controlling weight if consistent with the record. Rather, he reviewed the medical evidence in the record as was required. And, the state agency reviewing physicians were the only expert opinions in Wagner's record; the ALJ properly afforded them significant weight. Tyrpak v. Astrue, 858 F.Supp.2d 872, 887 (N.D. Ohio 2012). Wagner cites no authority for her contention that an independent medical opinion was required in order to review additional medical records submitted after the state agency physicians reviewed her record. "There is no regulation or case law that requires the [ALJ] to reject an opinion simply because medical evidence is produced after the opinion is formed." Mount v. Comm'r, 2013 U.S. Dist. LEXIS 83358 at *29 (S.D. Ohio June 13, 2013); Williamson v. Comm'r of Soc. Sec., 2013 U.S. Dist. LEXIS 10706 at *7 (S.D. Ohio Jan. 9, 2013). And here, there was relatively little expertise required to determine whether the ejection fraction estimates met the criteria for listing 4.02.

Although there is no evidence that Wagner ever made a request at her hearing that the ALJ consult a medical expert in order to review the additional records, her brief argues that remand is required for that purpose. ECF Doc. 12, Page ID# 1632. The primary function of a medical expert is to explain medical terms and the findings in medical reports in more complex cases in terms that the administrative law judge, who is not a medical professional, may understand. See Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 28 L. Ed. 2d 842 (1972). The Commissioner's regulations provide that an administrative law judge "may also ask for and consider opinions from medical experts on the nature and severity of [the claimant's] impairment(s) and on whether [the] impairment(s) equals the requirements of any impairment listed in appendix 1 to this subpart." 20 C.F.R. § 404.1527(f)(2)(iii). The Commissioner's operations manual indicates that it is within the administrative law judge's discretion whether to seek the assistance of a medical expert. HALLEX I-2-5-32 (September 28, 2005). "The primary reason an ALJ may obtain ME opinion is to gain information which will help him or her evaluate the medical evidence in a case, and determine whether the claimant is disabled or blind." Id. The operations manual indicates that an administrative law judge "may need to obtain an ME's opinion" in the following circumstances:

HALLEX I-2-5-34 (September 28, 2005). An administrative law judge's determination of whether a medical expert is necessary is inherently discretionary. Simpson v. Commissioner of Social Security, 344 Fed.App'x. 181, 2009 WL 2628355 (6th Cir. 2009) (unreported) at *8. An administrative law judge abuses his discretion only when the testimony of a medical expert is "required for the discharge of the ALJ's duty to conduct a full inquiry into the claimant's allegations. See 20 C.F.R. § 416.1444." Haywood v. Sullivan, 888 F.2d 1463, 1467-68 (5th Cir. 1989). Because discretion is involved, we can remand only when there is reason to believe the ALJ abused his discretion by not enlisting the assistance of a medical expert.

The ALJ obviously did not believe that an updated opinion from a medical expert was necessary for Wagner's claim. The record does not weigh against that decision. The medical evidence showed several ejection fraction estimates above 30%. Indeed, even Wagner's counsel acknowledged that the ejection fractions were not quite to the listing level, but were very close at 35%. (Tr. 74) And the ALJ pointed to an ejection fraction estimate of 40%4from the same day that an ejection fraction reading of 27% was obtained. Wagner has identified no evidence to suggest that a review of the updated records, taken as a whole, would have changed the state agency medical experts' opinions. As a result, we cannot conclude that the ALJ abused his discretion or otherwise erred by not obtaining an updated medical expert opinion on this claim.

The ALJ supported his finding at Step Three by substantial evidence in the record, and he correctly applied the agency's regulations in determining that Wagner's impairments did not meet or medically equal Listing 4.02. I recommend that the court affirm the ALJ's decision in regard to Wagner's second argument.

D. RFC Determination

In the Conclusion section of her brief, Wagner completely shifts gears, offering the new argument that the ALJ's Step Five determination was not supported by substantial evidence. It appears that this argument may have been included in error because Wagner has not identified any errors in the ALJ's Step Five analysis. Nor did this RFC argument appear in the identified legal issues at page 1 of Wagner's brief. ECF Doc. 12, Page ID# 1626. Nevertheless, the court notes that it is the ALJ, not a physician, who is responsible to determine a claimant's RFC based on the evidence as a whole. 42 U.S.C.A. § 423(d)(5)(B); 20 C.F.R. § 416.946(c). The regulations require the ALJ to evaluate several factors in determining the RFC, including all medical evidence (not limited to medical opinion testimony) and the claimant's testimony. See Henderson v. Comm'r, 2010 U.S. Dist. LEXIS 18644, *7 (N.D. Ohio, March 1, 2010) citing, Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004); SSR 96-5p, 1996 SSR LEXIS 2, SSR 96-8p, 1996 SSR LEXIS 5. The final responsibility for deciding the RFC "is reserved to the Commissioner." 20 C.F.R. § 416.927(e)(2).

In this case, the ALJ supported his RFC determination by citations to the medical evidence including the opinions of the state agency reviewing physicians. (Tr. 29-33) Wagner does not contend that the ALJ mishandled the medical evidence or medical opinions in the record in reaching the RFC determination. Indeed, the ALJ's RFC finding is generally consistent with the only medical opinions in the record. And the ALJ relied on VE testimony to support his determination that there were many jobs someone like Wagner could do. (Tr. 70-72) Thus, while it is unclear why this argument was included in the conclusion section of Wagner's brief, it does not appear that the ALJ erred at Step Five.

VII. Recommendation

Substantial evidence supports the ALJ's decision in this action and Wagner has not identified any error of law. I recommend that the final decision of the Commissioner be AFFIRMED, pursuant to 42 U.S.C. §405(g).

OBJECTIONS

Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after being served with a copy of this Report and Recommendation. Failure to file objections within the specified time may waive the right to appeal the District Court's order. See U.S. v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).