                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             2
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.



                                                   7
     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)
                                         8
          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).



                                                9
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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