Jimmy Radford v. Michael J. Astrue
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-cv-00347-BO. [999228588]. [13-1021]
Appeal: 13-1021
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1021
JIMMY RADFORD,
Plaintiff - Appellee,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cv-00347-BO)
Argued:
September 17, 2013
Decided:
October 29, 2013
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Davis wrote the
opinion, in which Judge Gregory and Judge Keenan joined.
ARGUED: Samantha Lee Chaifetz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. Charlotte Williams
Hall, CHARLES T. HALL LAW FIRM, Raleigh, North Carolina, for
Appellee. ON BRIEF: David F. Black, General Counsel, Gabriel R.
Deadwyler, Attorney, SOCIAL SECURITY ADMINISTRATION, Baltimore,
Maryland; Thomas G. Walker, United States Attorney, Raleigh,
North Carolina, Stuart F. Delery, Principal Deputy Assistant
Attorney General, Michael S. Raab, Attorney, Sparkle L.
Sooknanan, Attorney, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.
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DAVIS, Circuit Judge:
Jimmy
benefits
Radford
after
applied
he
for
sustained
social
an
security
injury
to
disability
his
back.
An
Administrative Law Judge (ALJ) denied Radford’s claim, finding,
among other things, that he was not disabled because his back
impairment did not “meet or equal” Listing 1.04A, the regulation
identifying
disorders
of
the
spine
that
merit
a
conclusive
presumption of disability and an award of benefits. 20 C.F.R.
Part 404, Subpart P, App. 1 § 1.04A. After the Appeals Board
denied his request for review, Radford sought judicial review of
the ALJ’s decision in federal district court in North Carolina.
And he won: the district court found that “the evidence as a
whole compels a conclusion” that Radford met Listing 1.04A; it
reversed the decision of the ALJ as unsupported by substantial
evidence; and it took the extra step of remanding the case for
an award of benefits.
Carolyn Colvin, the Acting Commissioner of Social Security,
contends on appeal that the district court applied the wrong
legal standard in ruling that Radford’s condition met or equaled
Listing 1.04A, and that it erred in remanding with instructions
to award benefits.
We
hold
that
the
district
court
did
not
err
in
its
application of Listing 1.04A; however, we vacate the judgment of
the district court because its decision to direct the ALJ to
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award benefits was an abuse of discretion. We order a remand to
the agency for further proceedings.
I.
Title
II
of
the
Social
Security
Act
“provides
for
the
payment of insurance benefits to persons who have contributed to
the
program
and
who
suffer
from
a
physical
or
mental
disability.” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The
Commissioner uses a five-step process for evaluating claims for
disability
benefits.
20
C.F.R.
§
404.1520(a)(4);
Hancock
v.
Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner
asks
whether
period
of
the
claimant:
disability;
(1)
(2)
worked
has
an
during
the
impairment
purported
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. Hancock, 667 F.3d at
472-3. The claimant has the burden of production and proof at
Steps 1–4. Id.
This case involves Step 3, the “listed” impairments step. 1
1
Although the ALJ made findings with regard to the other
steps, the parties do not discuss, and we need not consider, the
remaining steps because "[i]f a determination of disability can
be made at any step, the Commissioner need not analyze
subsequent steps." Hancock, 667 F.3d at 473.
3
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The
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regulations
Social
impairments
Security
containing
which,
if
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Administration
“listings
met,
are
of
has
physical
conclusive
on
promulgated
and
the
mental
issue
of
disability.” McNunis v. Califano, 605 F.2d 743, 744 (4th Cir.
1979). A claimant is entitled to a conclusive presumption that
he is impaired if he can show that his condition “meets or
equals the listed impairments.” Bowen v. City of New York, 476
U.S. 467, 471 (1986). 2
At issue in this case is the listing that covers disorders
of the spine: A claimant is entitled to a conclusive presumption
that he is disabled if he can show that his disorder results in
compromise of a nerve root or the spinal cord. 20 C.F.R. Part
404, Subpart P, App. 1, § 1.04. Listing 1.04A further describes
the criteria a claimant must meet or equal to merit a conclusive
presumption of disability arising out of compromise of a nerve
root or the spinal cord:
[e]vidence of nerve root compression characterized by
[1] neuro-anatomic distribution of pain, [2] limitation
of motion of the spine, [3] motor loss (atrophy with
associated
muscle
weakness
or
muscle
weakness)
accompanied by sensory or reflex loss and, if there is
involvement of the lower back, [4] positive straightleg raising test (sitting and supine)[.]
2
If the claimant’s impairments are not listed, he still
qualifies for benefits if he shows that he cannot perform his
past work, and cannot – in light of his residual functional
capacity, age, education, and work experience - perform other
work. Bowen, 476 U.S. at 471.
4
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20
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C.F.R.
Part
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404,
Subpart
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P,
App.
1,
§
1.04A.
It
is
the
assessment of these criteria at the root of this appeal.
II.
Radford worked as a tree trimmer. In December 2002, when he
was 38, he sustained an injury lifting part of a tree at work
and sought emergency medical care for pain in his lower back,
legs, and knees. The treating physician diagnosed a back sprain
and discharged Radford with medication.
Over the next five years, Radford consulted several doctors
who
collectively
observed
–
at
various
points
in
time
–
different symptoms of nerve root compression present in Radford.
In
June
disability
2007,
benefits.
Radford
A
state
applied
agency
for
medical
social
security
consultant
found
that Radford had “discogenic” 3 and “degenerative” “disorders of
the back,” but concluded that Radford was not disabled within
the meaning of the Social Security Act. (A.R. 52.) A second
consultant concurred.
The ALJ denied Radford’s claim. The ALJ found that Radford
had two severe impairments - lumbar degenerative disc disease
and chronic obstructive pulmonary disorder - but that neither
qualified as an impairment under Listings 1.04A (disorders of
3
“Discogenic”
means
“caused
by
derangement
of
an
intervertebral disk.” Dorland’s Medical Dictionary for Health
Consumers (2007).
5
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the
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spine)
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or
3.02
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(chronic
pulmonary
insufficiency),
and
neither constituted any other type of impairment listed under
sections
1.00
(musculoskeletal),
3.00
(respiratory
system),
11.00 (neurological), and 13.00 (malignant neoplastic diseases).
The ALJ provided no basis for his conclusion, except to say that
he had “considered, in particular,” the listings above, and had
noted that state medical examiners had also “concluded after
reviewing the evidence that no listing [was] met or equaled.”
(A.R. 17).
The ALJ also found that Radford would be unable to continue
working as a tree trimmer, but that he could work as a food and
beverage order clerk, surveillance system monitor, or addresser.
Thus, the ALJ concluded that Radford was not disabled within the
meaning of the Act.
The Appeals Council declined Radford’s request for review,
rendering the ALJ’s decision final.
Radford sought judicial review in federal court, asserting
that
the
ALJ
had
erred
by
finding
that
Radford
had
not
established that he met or equaled the Listing 1.04 impairments.
Radford v. Astrue, 2012 WL 3594642, at *1 (E.D.N.C. Aug. 20,
2012). On cross-motions for judgment on the pleadings, Fed. R.
Civ.
P.
12(c),
the
district
court
agreed
with
Radford,
concluding that the ALJ’s determination that he had “not [met]
Listing
1.04
[was]
not
supported
6
by
substantial
evidence”
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because the ALJ’s opinion failed to apply the requirements of
the listings to the medical record. Id. at *2. The district
court further concluded that the extensive medical record showed
that
Radford
fell
within
Listing
1.04A
because
all
of
the
required medical findings were present in Radford’s extensive
medical
record.
Id.
at
*3.
Accordingly,
the
district
court
reversed the decision of the ALJ and remanded the case with
instructions to award benefits. Id.
The
district
court
denied
the
Commissioner’s
motion
for
reconsideration, and the Commissioner timely appealed.
III.
The
Commissioner
contends
that
the
district
court
“improperly substituted its own view” of the Social Security
Administration’s
effectively
regulations
interpreting
for
Listing
that
of
1.04A
the
to
Commissioner
require
that
by
the
listed criteria “be present intermittently at some point in the
medical record.” (App. Br. 24) (emphasis added). Instead, the
Commissioner argues that the listed signs and symptoms must be
“simultaneously present” “over a period of time sufficient to
establish that the impairment has lasted or can be expected to
last at listing-level severity for a continuous period of at
least twelve months.” (App. Br. 22, 27) (emphasis added). She
contends
that
the
ALJ
applied
the
standard
concluding that Radford did not meet Listing 1.04A.
7
correctly
in
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apparent
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recognition
of
the
novelty
of
this
interpretation, counsel for the Commissioner retreated from it
during
oral
contention
findings
argument.
is
that
requirement:
The
Commissioner’s
Listing
To
1.04A
meet
(somewhat)
contains
or
equal
a
modified
proximity-of-
Listing
1.04A,
the
claimant has the burden of producing evidence that his nerve
root compression is characterized by sufficiently proximate (and
perhaps
simultaneous)
medical
findings
of
(1)
neuro-anatomic
distribution of pain, (2) limitation of motion of the spine, (3)
motor loss (atrophy with associated muscle weakness or muscle
weakness)
accompanied
by
sensory
or
reflex
loss,
and
(4)
positive straight-leg raising test.
The
Commissioner’s
interpretation
advanced
structure
the
of
Commissioner’s
findings
is
not
regulation.
invitation
requirement
contention
into
to
read
Listing
is
unpersuasive.
supported
by
We
therefore
an
the
additional
1.04A.
Because
The
text
reject
or
the
proximity-ofthis
appeal
turns on construction of an administrative regulation, we review
the district court’s ruling de novo. Precon Dev. Corp., Inc. v.
U.S. Army Corps of Engineers, 633 F.3d 278, 289-90 (4th Cir.
2011) (observing that statutory construction is a “question of
law”).
The first step in construing a regulation is to consider
the text, Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 878
8
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(2011),
and
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the
text
here
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does
not
contain
a
requirement
governing when symptoms must present in the claimant. Listing
1.04A provides that certain “disorders of the spine” are among
the
impairments
requires
conclusively
only
establishing
“[e]vidence
of
nerve
disability.
root
It
compression
characterized by” – i.e., distinguished by - the four symptoms.
20
C.F.R.
Part
Webster’s
404,
Subpart
Collegiate
(“characteristic”).
P,
App.
Dictionary
The
use
of
1,
192
“and”
§
1.04A;
(10th
to
Merriam
ed.
connect
1997)
the
four
symptoms means that all of the symptoms must be present in the
claimant, but the provision does not specify when they must be
present. And it certainly does not say that they must be present
at the same time, see Merriam Webster’s Collegiate Dictionary
1094 (10th ed. 1997) (defining “simultaneous” as “existing or
occurring
at
the
same
time”),
or
that
they
must
be
present
within a certain proximity of one another.
The regulation does not specify when the findings must be
present
imposes
because
a
it
does
duration
not
need
requirement
to:
on
The
regulation
the
already
claimant.
See
Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466,
471 (4th Cir. 2011) (stating that the Court may "discover the
plain meaning” of a regulation by looking at its structure).
Under Step 3, the regulation states that a claimant will be
found disabled if he or she has an impairment that “[1] meets or
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equals one of our listings in appendix 1 of this subpart and [2]
meets the duration requirement.” 20 C.F.R. § 404.1520(a)(4)(iii)
(emphasis added). The critical durational inquiry for purposes
of awarding benefits is whether the impairment has lasted or is
expected
to
last
“for
a
continuous
period
of
at
least
12
months.” 20 C.F.R. § 404.1509 (“How long the impairment must
last”). This language mirrors that of the statute: The Social
Security
Act
provides
benefits
for
claimants
with
a
“disability,” defined as an
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.
requirement
§
423(d)(1)(A)
thus
screens
(emphasis
out
claimants
added).
with
The
duration
impairments
that
have not lasted and cannot be expected to last for a continuous
year or more.
The Commissioner seeks a bright line rule specifying when
and how Listing 1.04A’s symptoms must present in the claimant,
but the regulatory structure eschews such a rule in favor of a
more
free-form,
contextual
inquiry
that
makes
12
months
the
relevant metric for assessment of the claimant’s duration of
disability. Neither the text nor the structure of the regulation
reveal an intent to layer a more stringent proximity-of-findings
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requirement on top of the durational requirement. And that makes
sense:
It
would
be
peculiarly
redundant
to
require
that
a
claimant prove that his impairment will last or has lasted at
least 12 months and that he produce medical examinations showing
that
each
symptom
in
Listing
1.04A
presents
either
simultaneously or in sufficiently close proximity such that an
ALJ could conclude that the claimant’s impairment will last or
has
lasted
at
least
12
months.
We
reject
such
a
redundant
construction of the regulation. See PSINet, Inc. v. Chapman, 362
F.3d 227, 232 (4th Cir. 2004) (observing that courts typically
“reject constructions that render a term redundant”).
With no basis in text or structure, the Commissioner seeks
to
defend
her
interpretation
by
invoking
agency
deference.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984). There are two problems with this. First,
other
than
the
un-cited
proposition
in
its
brief,
the
Commissioner points to no other authority – no Social Security
Ruling, no regulation, no letter or agency memorandum – that
suggests that the Commissioner has ever adopted a proximity-offindings requirement until her briefing to this Court. We thus
cannot conclude that the interpretation advanced reflects the
“fair and considered judgment” of the Commissioner; instead, it
reads
more
like
a
litigating
position
or
“a
post
hoc
rationalization.” Christopher v. SmithKline Beecham Corp., 132
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S. Ct. 2156, 2166-67 (2012) (internal citations and quotations
omitted).
Second, the Court declines to defer to the Commissioner’s
interpretation because it is plainly inconsistent with the text
and structure of the regulation. Id. Listing 1.04A says nothing
about
a
claimant’s
simultaneously
in
another.
the
(And
need
the
to
show
claimant
or
Commissioner
that
in
points
the
symptoms
proximity
close
to
no
present
to
federal
one
circuit
court that has ever adopted this view.) It is unambiguous. “An
agency’s
interpretation
of
a
regulation
is
not
entitled
to
deference where the regulation's meaning is unambiguous,” Anim
v.
Mukasey,
535
F.3d
243,
254
(4th
Cir.
2008);
the
Commissioner’s interpretation of Listing 1.04A is therefore not
entitled to deference. See Pitzer v. Sullivan, 908 F.2d 502, 505
(9th
Cir.
1990)
(rejecting
the
agency's
attempt
to
add
new
requirements to a medical listing contrary to the plain text of
the regulation).
We hold that Listing 1.04A requires a claimant to show only
what it requires him to show: that each of the symptoms are
present, and that the claimant has suffered or can be expected
to suffer from nerve root compression continuously for at least
12 months. 20 C.F.R. § 404.1509. A claimant need not show that
each symptom was present at precisely the same time - i.e.,
simultaneously - in order to establish the chronic nature of his
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condition.
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Nor
need
a
Pg: 13 of 17
claimant
show
that
the
symptoms
were
present in the claimant in particularly close proximity. As the
Commissioner
recognizes,
“abnormal
physical
findings
may
be
intermittent,” but a claimant may nonetheless prove a chronic
condition by showing that he experienced the symptoms “over a
period of time,” as evidenced by “a record of ongoing management
and
evaluation.”
(App.
Br.
25)
(quoting
20
C.F.R.
Part
404,
Subpart P, 1.00D). To require proximity of findings would read a
new
requirement
text,
structure,
into
the
medical
listing
that
practice,
or
is
unsupported
common
sense,
by
the
and
we
decline to do so.
IV.
Although we hold that the district court did not apply the
wrong legal standard, we nonetheless vacate its judgment because
it chose the wrong remedy: Rather than “reversing” the ALJ and
remanding with instructions to award benefits to Radford, the
district
court
should
have
vacated
and
remanded
with
instructions for the ALJ to clarify why Radford did not satisfy
Listing 1.04A.
Like us, the district court reviews the record to ensure
that the ALJ’s factual findings are supported by substantial
evidence
and
that
its
legal
findings
are
free
of
error.
Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d 319, 322 (4th
Cir.
2013).
If
the
reviewing
court
13
decides
that
the
ALJ’s
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decision
is
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not
supported
by
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substantial
evidence,
it
may
affirm, modify, or reverse the ALJ’s ruling “with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
A necessary predicate to engaging in substantial evidence
review is a record of the basis for the ALJ’s ruling. See Gordon
v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). The record
should
include
credible
and
a
discussion
why,
and
of
specific
which
evidence
application
of
the
ALJ
the
found
pertinent
legal requirements to the record evidence. Hines v. Bowen, 872
F.2d 56, 59 (4th Cir. 1989). If the reviewing court has no way
of evaluating the basis for the ALJ’s decision, then “the proper
course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.” Florida Power &
Light
Co.
v.
Lorion,
470
U.S.
729,
744
(1985).
There
are,
however, exceptions to that. See Breeden v. Weinberger, 493 F.2d
1002, 1011-12 (4th Cir. 1974) (reversing for award of benefits
where case was quite old, record had no need to be reopened, and
the case had already been on appeal once before). We review the
district
court’s
choice
of
remedy
-
to
affirm,
modify,
or
reverse - for abuse of discretion. Id.
We conclude that the district court abused its discretion
in
directing
an
award
of
benefits
rather
than
remanding
for
further explanation by the ALJ of why Radford does not meet
Listing 1.04A. The ALJ’s decision regarding the applicability of
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Listing 1.04A is devoid of reasoning. He summarily concluded
that
Radford’s
impairment
did
not
meet
or
equal
a
listed
impairment, but he provided no explanation other than writing
that
he
“considered,
in
particular,”
a
variety
of
listings,
including Listing 1.04A, and noting that state medical examiners
had also concluded “that no listing [was] met or equaled.” (A.R.
16–17). This insufficient legal analysis makes it impossible for
a
reviewing
court
to
evaluate
whether
substantial
evidence
supports the ALJ’s findings. See Cook v. Heckler, 783 F.2d 1168,
1173 (4th Cir. 1986) (reversing and remanding when ALJ “failed
to compare [the claimant’s] symptoms to the requirements of any
of the four listed impairments, except in a very summary way”).
A full explanation by the ALJ is particularly important in this
case because Radford’s medical record includes a fair amount of
evidence supportive of his claim, Murphy v. Bowen, 810 F.2d 433,
437 (4th Cir. 1987); indeed, there are five years of medical
examinations,
and
there
is
probative
evidence
strongly
suggesting that Radford meets or equals Listing 1.04A.
The ALJ cited the state medical opinions in support of his
conclusion, but that is not enough to constitute “substantial
evidence.”
Even
if
the
ALJ’s
exclusive
citation
to
those
opinions indicates the (apparently very high) evidentiary weight
he placed on them, it does not indicate why the opinions merit
that weight. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir.
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1995)
Doc: 34
(holding
Filed: 10/29/2013
that
reliance
Pg: 16 of 17
on
the
opinion
of
nonexamining
physicians cannot, by itself, constitute substantial evidence).
Moreover, the ALJ appeared to totally – and without explanation
- reject the opinions of Radford’s treating physicians in favor
of the state medical examiners; this raises red flags because
the
state
medical
opinions
are
issued
by
non-examining
physicians and are typically afforded less weight than those by
examining and treating physicians. See 20 C.F.R. § 404.1527(c)
(providing
that
medical
opinions
from
examining
and
treating
physicians are given more weight than those of non-examining,
non-treating physicians).
The district court reasoned that remand was futile because
the ALJ’s decision regarding Listing 1.04A was not supported by
substantial evidence, Radford’s case has been pending for some
time, and the evidence actually compelled the conclusion that
Radford met the listing. Radford, 2012 WL 3594642, at *3. The
Commissioner, however, correctly notes that “there is at least
conflicting
evidence
in
the
record”
as
to
whether
Radford
satisfied the listing. (App. Br. 25). For example, the record
contains instances where Radford showed limited motion of the
spine on at least four occasions, positive straight leg raises
at least five times, and sensory or reflex loss on at least
three
occasions.
But
the
record
also
shows
that
Radford
exhibited no weakness, sensory loss, or limitation of motion
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during some examinations, and Dr. Kushner opined more than once
that Radford’s pain was inconsistent with his physical findings.
Given the depth and ambivalence of the medical record, the
ALJ’s failure to adequately explain his reasoning precludes this
Court
and
review” of
the
the
district
finding
court
that
from
undertaking
Radford
did
not
a
“meaningful
satisfy
Listing
1.04A. Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
Just as it is not our province to “reweigh conflicting evidence,
make credibility determinations, or substitute our judgment for
that of the [ALJ],” Hancock, 667 F.3d at 472 (alteration in
original), it is also not our province – nor the province of the
district
court
–
to
engage
in
these
exercises
in
the
first
instance.
V.
For the reasons set forth, the judgment is vacated and
this case is remanded with instructions that the district court
remand the case for further proceedings before the agency.
VACATED AND REMANDED
17
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