Hudson v. Berryhill
MEMORANDUM OPINION AND ORDER: it is ORDERED that the decision of the Commissioner is REVERSED and REMANDED for further consideration with the following instructions: 1) The Commissioner shall reevaluate whether Hudson has a severe impairment that equals Listing 1.04, using the standard currently provided in 20 CFR Pt. 404, Subpt. P, App. 1.; and 2) Take such other action as may be necessary to resolve this claim properly; A final judgment will be entered separately. Signed by Honorable Judge Gray M. Borden on 8/10/2018. (Copies mailed to SSA Chief Judge & SSA Office of Hearings & Appeals) (alm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SHERRY RENA HUDSON,
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
CASE NO.: 1:17-cv-192-GMB
MEMORANDUM OPINION AND ORDER
Plaintiff Sherry Rena Hudson applied for supplemental security income and
disability insurance benefits under the Social Security Act, alleging a disability onset date
of December 3, 2013. Hudson’s claim was denied at the initial administrative level.
Hudson requested a hearing before an Administrative Law Judge (“ALJ”), and the ALJ
found that she was not disabled. R. 126. The Appeals Council denied her request for
review, making the ALJ’s decision the final decision of the Commissioner. R. 1. The
Commissioner’s final decision is subject to judicial review. 42 U.S.C. §§ 405(g) &
1383(c)(3). Hudson subsequently filed a complaint seeking review of the Commissioner’s
final decision in this court.
Pursuant to 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal Rules of Civil
Procedure, the parties have consented to the full jurisdiction of the undersigned United
States Magistrate Judge. Docs. 11 & 12. Based upon a review of the evidentiary record,
the parties’ briefs, and the relevant authority, the court finds that the Commissioner’s
decision is due to be REVERSED and REMANDED, as set forth below.
I. STANDARD OF REVIEW
The court reviews a Social Security appeal to determine whether the
Commissioner’s decision “is supported by substantial evidence and based upon proper
legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court will
reverse the Commissioner’s decision if it is convinced that the decision was not supported
by substantial evidence or that the proper legal standards were not applied. Carnes v.
Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The court “may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the Commissioner,” but rather
it “must defer to the Commissioner’s decision if it is supported by substantial evidence.”
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (internal quotation marks omitted).
“Even if the evidence preponderates against the Secretary’s factual findings, [the court]
must affirm if the decision reached is supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Moreover, reversal is not warranted even
if the court itself would have reached a result contrary to that of the factfinder. See Edwards
v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
The substantial evidence standard is met “if a reasonable person would accept the
evidence in the record as adequate to support the challenged conclusion.” Holladay v.
Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (quoting Boyd v. Heckler, 704 F.2d 1207,
1209 (11th Cir. 1983)). The requisite evidentiary showing has been described as “more
than a scintilla, but less than a preponderance.” Bloodsworth, 703 F.2d at 1239. The court
must scrutinize the entire record to determine the reasonableness of the decision reached
and cannot “act as [an] automaton in reviewing the [Commissioner’s] decision.” Hale v.
Bowen, 831 F.2d 1007, 1010 (11th Cir. 1987). Thus, the court must consider evidence both
favorable and unfavorable to the Commissioner’s decision. Swindle v. Sullivan, 914 F.2d
222, 225 (11th Cir. 1990).
The court will reverse the Commissioner’s decision on plenary review if the
decision applies incorrect law or fails to provide the court with sufficient reasoning to
determine that the Commissioner properly applied the law. Id. (citing Keeton v. Dep’t of
Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show 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); 42
U.S.C. § 416(i). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrated by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
A claimant bears the burden of proving that he is disabled, and he is responsible for
producing evidence to support his claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003).
A determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). The Commissioner must determine in sequence:
(1) Is the claimant performing substantial gainful activity?
(2) Does she have a severe impairment?
(3) Does she have a severe impairment that equals one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Sub pt. P, App. 1?
(4) Is the claimant able to perform past relevant work? and
(5) Is the claimant unable to perform other work given her residual
functional capacity (RFC), age, education, and work experience?
See Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); Frame v. Comm’r, Soc.
Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015). “An affirmative answer to any of
the above questions leads either to the next question, or, on steps three and five, to a finding
A negative answer to any question, other than step three, leads to a
determination of ‘not disabled.’” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986)
(quoting 20 C.F.R. § 416.920(a)−(f)). “Once the finding is made that a claimant cannot
return to prior work the burden of proof shifts to the Secretary to show other work the
claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citing Gibson v.
Heckler, 762 F.2d 1516 (11th Cir. 1985)).
III. FACTUAL BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
Hudson was 42 years old on the alleged disability onset date and 44 years old at the
time of the ALJ’s decision. Hudson could read, had completed the seventh grade, and had
worked as a food manager, food sales clerk, sales attendant, cashier checker, and
photographer in the past.
The ALJ found that Hudson had the following severe impairments: degenerative
disc disease of lumbar spine, status post lumbar fusion, obesity, and depressive disorder.
R. 132. The ALJ concluded that Hudson’s hypertension and anxiety were non-severe. R.
132. The ALJ found that Hudson’s impairments did not individually or collectively meet
or equal any of the impairments listed in 20 C.F.R. pt. 404, Sub pt. P, App 1. R. 133.
Specifically with regard to Hudson’s back impairment, the ALJ found as follows:
The claimant’s back impairment has been considered under the requirements
of Listing 1.04. However, the claimant has not been observed to have reflex
abnormalities, motor incoordination, decreased muscle strength, joint
deformities, gait abnormalities, muscle atrophy, substantial limitation of
range of motion, or significant muscle spasm.
R. 133. The ALJ also found that Hudson retained the RFC to perform a reduced rate of
light work and could not return to past relevant work. R. 134. Ultimately, the ALJ
concluded that Hudson was not disabled within the meaning of the Social Security Act. R.
Hudson presents three issues to this court: (1) whether the ALJ erred in evaluating
Listing 1.04 by applying an improper legal standard which placed a higher burden on
Hudson than the listing required; (2) whether the ALJ’s finding of lifting limitations in the
RFC is supported by substantial evidence, and (3) whether the ALJ erred as a matter of law
when she failed to find that Hudson was disabled through testimony of pain or other
subjective symptoms. The Commissioner argues that the ALJ’s decision is supported by
substantial evidence and should be affirmed. Having carefully considered the parties’
arguments, the record, and the applicable legal authority, and for the reasons set forth
below, the undersigned finds that the Commissioner’s decision is due to be REVERSED
and REMANDED for failure to apply Listing 1.04 properly.1
Hudson has argued that in applying Listing 1.04, the ALJ placed a higher burden on
Hudson than that which is required by the listing.
Listing 1.04 provides as follows:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, 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, positive straight-leg raising test (sitting and supine);
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than once
every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and resulting in inability
to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
As noted above, the ALJ made findings that Hudson did not have a substantial
limitation in range of motion or significant muscle spasm. R. 133. The ALJ also found that
Hudson did not have joint deformities. R. 133. Finally, the ALJ stated that Hudson did not
Because this case is due to be remanded on this discrete issue, the court does not address the other issues
raised in Hudson’s brief. See Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1323 n.10 (11th
Cir. 2015); see also Spivey v. Berryhill, 2018 WL 1546358, at *5 (M.D. Ala. Mar. 29, 2018). However, the
court expects that the Commissioner will consider those arguments on remand as well and will develop the
record as is necessary in areas not expressly considered in this opinion. Spivey, 2018 WL 1546358, at *5.
have reflex abnormalities, without making a finding as to whether Hudson had sensory
loss. R. 133. Hudson argues that in making these findings, the ALJ applied the wrong legal
standard because Listing 1.04 does not require a finding of a “substantial” limitation of
motion of the spine, significant muscle spasm, or joint deformities, and that reflex loss is
stated in the disjunctive in the listing. In concluding that Listing 1.04 did not apply, Hudson
argues that the ALJ found that Hudson did not suffer from limitations that are not required
for Listing 1.04 to apply. In other words, her position is that the ALJ impermissibly raised
The Commissioner does not respond to this argument. Instead, the Commissioner
points to Hudson’s medical records and argues that Hudson did not show that her condition
met the first paragraph of Listing 1.04, or subsection A or C, and that ALJ’s findings are
supported by substantial evidence.
Other courts have rejected an application of Listing 1.04 which required a
“significant” range of motion. See, e.g., Kastner v. Astrue, 697 F.3d 642, 649 (7th Cir.
2012). These courts have noted that the “impairment listings for disorders of the spine
were revised in 2001 with the express purpose of relaxing the limitation-of-motion
requirement” from the “earlier version [that] had required limitation of motion of the spine
to be ‘significant.’” Id.; see also Revised Medical Criteria for Determination of Disability,
Musculoskeletal System & Related Criteria, 66 FR 58010-01, 2001 WL 1453802, at 58011
(November 19, 2001).
“Significant” was thought to be unnecessary because “any
restriction on movement that a doctor considers a medical limitation of motion will satisfy
this element of the listing.” Kastner, 697 F.3d at 649.
In Walker v. Colvin, 2016 WL 8669936, at *5 (D. Md. Sept. 15, 2016), the ALJ
made a finding that a claimant’s records did not reflect significant weakness or significant
sensory loss. Upon review, the court explained that Listing 1.04 no longer requires a
finding of “significant” limitation and found to be improper the ALJ’s conclusion that a
functional limitation on the “milder side” did not meet Listing 1.04. Id.
In this case, the ALJ made findings that Hudson did not have a “substantial”
limitation on range of motion or significant muscle spasm. Neither of these findings is
required by Listing 1.04. See Revised Medical Criteria for Determination of Disability,
Musculoskeletal System and Related Criteria, 2001 WL 1453802, at *58018 (stating that
the Social Security Administration “also removed the requirement for muscle spasm in
current listing 1.05C because the finding usually reflects an acute condition that will not
persist for a year [and observing that] because spasm is often an intermittent finding, it may
not be present on a given examination even though an individual might otherwise be
significantly limited”). The ALJ’s findings of no joint deformity and of no reflex loss,
without a consideration of sensory loss, also go beyond the requirements of the listing. The
court agrees with Hudson, therefore, that the ALJ improperly applied Listing 1.04.
The Commissioner has argued that there is substantial evidence which supports a
finding that Hudson does not have an impairment that meets Listing 1.04. Essentially, the
Commissioner asks the court to review the medical evidence under the correct legal
standard and conclude that the ALJ’s finding that Listing 1.04 is not met is supported by
substantial evidence. This court, however, cannot affirm “simply because some rationale
might have supported the ALJ’s conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176, 1179 (11th Cir. 2011). Instead, the court must reverse the Commissioner’s decision
on plenary review if the decision applies incorrect law or fails to provide the court with
sufficient reasoning to determine that the Commissioner properly applied the law. Swindle
v. Sullivan, 914 F.2d 222, 225 (11th Cir. 1990).
Hudson, on the other hand, argues that the appropriate remedy for the ALJ’s error
in applying Listing 1.04 is reversal for entry of an award of benefits. Sentence four of
42 U.S.C. § 405(g) authorizes the district court to “enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g). A district court may remand a case to the Commissioner for a rehearing
if the court finds “either . . . the decision is not supported by substantial evidence, or . . .
the Commissioner or the ALJ incorrectly applied the law relevant to the disability claim.”
Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir.1996). “Generally, a reversal with remand
to the [Commissioner] is warranted where the ALJ has failed to apply the correct legal
standards.” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993). Reversal “for entry of
an order awarding disability benefits,” should occur only when the Commissioner “has
already considered the essential evidence and it is clear that the cumulative effect of the
evidence establishes disability without any doubt.” Id. The court concludes in this case
that it is appropriate to reverse and remand for further consideration under the correct legal
standard. See Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984) (finding an error
of law and remanding for further consideration); Spivey v. Berryhill, 2018 WL 1546358, at
*5 (M.D. Ala. Mar. 29, 2018) (reversing for use of improper legal standard and remanding
for further consideration); Williams v. Astrue, 2010 WL 3167859, at *2 (M.D. Ala. Aug.
6, 2010) (remanding for further consideration where ALJ committed error but it was not
clear that claimant’s impairments equaled a listed impairment).
Based on the foregoing, it is ORDERED that the decision of the Commissioner is
REVERSED and REMANDED for further consideration with the following instructions:
The Commissioner shall reevaluate whether Hudson has a severe impairment
that equals Listing 1.04, using the standard currently provided in 20 C.F.R. § Pt. 404, Subpt.
P, App. 1.; and
Take such other action as may be necessary to resolve this claim properly.
A final judgment will be entered separately.
DONE this 10th day of August, 2018.
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