Knox v. Berryhill

Filing 21

Order re: 1 Complaint filed by Tarah S. Knox stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/27/19. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TARAH S. KNOX,

*
*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 17-00506-B

ORDER
Plaintiff

Tarah

S.

Knox

(hereinafter

“Plaintiff”)

seeks

judicial review of a final decision of the Commissioner of Social
Security

denying

her

claim

for

a

period

of

disability

and

disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq.

On October 12, 2018, the parties

consented to have the undersigned conduct any and all proceedings
in this case.

(Doc. 13).

Thus, the action was referred to the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of
Civil Procedure 73.

(Doc. 14).

Upon careful consideration of the

administrative record and the memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner be AFFIRMED.

I.

Procedural History1
Plaintiff protectively filed her application for benefits on

April 20, 2015, alleging disability beginning July 6, 2011, based
on degenerative disc disease; arthritis in her back, neck, legs,
and feet; bulging and herniated discs; right foot injury; nerve
damage in her leg and foot; plantar fasciitis in both feet; and
three surgeries on her right foot to remove two cysts, repair torn
tendons, and remove pieces of her navicular bone.
113, 132).

(Doc. 8 at 70,

Plaintiff later amended the alleged onset date of her

disability to February 11, 2013.

(Id. at 99).

Plaintiff’s

application was denied and, upon timely request, she was granted
an administrative hearing before Administrative Law Judge Ben E.
Sheely (hereinafter “ALJ”) on December 20, 2016.

(Id. at 31).

Plaintiff attended the hearing with her counsel and provided
testimony related to her claims.

(Id. at 35).

A vocational expert

also appeared at the hearing and provided testimony.

(Id. at 53).

On March 24, 2017, the ALJ issued an unfavorable decision finding
that Plaintiff is not disabled.

(Id. at 15).

The Appeals Council

denied Plaintiff’s request for review on October 13, 2017.
at 4).

(Id.

Therefore, the ALJ’s decision dated March 24, 2017, became

the final decision of the Commissioner.

1

(Id.).

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF.

2

Having

exhausted

her

administrative

timely filed the present civil action.
was conducted on November 19, 2018.

remedies,

(Doc. 1).

(Doc. 20).

Plaintiff

Oral argument

This case is now

ripe for judicial review and is properly before this Court pursuant
to 42 U.S.C. §§ 405(g).
II.

Issue on Appeal
Whether the ALJ reversibly erred in failing to
expressly discuss whether Plaintiff’s cervical
and lumbar impairments meet Listing 1.04?

III. Factual Background
Plaintiff was born on March 16, 1975, and was forty-one years
of age at the time of her administrative hearing on December 20,
2016.

(Doc. 8 at 35, 113).

Plaintiff reached, but did not

complete, the eleventh grade in school.
is able to read and write.

(Id. at 35).

Plaintiff

(Id.).

Plaintiff last worked as a shift manager at Starbucks in July
2011.

(Id. at 36).

Prior to working at Starbucks, she worked as

a sales representative at a flower shop from 1999 to 2002.
at 37).

(Id.

While working at Starbucks in 2010, Plaintiff tripped and

fell over a floor mat, injuring her right foot and ankle and
ultimately resulting in Plaintiff having three surgeries on her
right foot in a span of approximately a year and a half.

2

(Id.).2

Plaintiff received workers’ compensation benefits as a result of
her injuries until early 2015, when she received notice that her
employment with Starbucks was terminated. (Doc. 8 at 37-38, 43).

3

At her hearing, Plaintiff testified that she would probably
be able to stand for about five minutes before needing to sit down
because of swelling in her feet and radiating pain in her lower
back.

(Id. at 45).

Plaintiff also testified that she could sit

for “[a] good 15/20 minutes” before having to stand up because of
back and neck pain.

(Id. at 46).

Plaintiff’s foot and ankle

injuries were treated with medications, such as Neurontin and
Zorvolex, physical therapy, and surgically.

(Id. at 39, 44, 46).

Her lower back was treated with medications, injections, and
ultimately a surgery in September 2015.

(Id. at 40-41, 44).

Plaintiff was prescribed Voltaren for her neck, and she testified
at

the

hearing

injections.

that

she

planned

to

have

cervical

epidural

(Id. at 41, 462).

IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.

The Court’s review is limited to determining

(1) whether the decision of the Commissioner is supported by
substantial evidence and (2) whether the correct legal standards
were applied.3
1990).

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.

A court may not decide the facts anew, reweigh the

evidence, or substitute its judgment for that of the Commissioner.

3

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).

4

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).

The

Commissioner’s findings of fact must be affirmed if they are based
upon substantial evidence.
(11th Cir. 1991).

Brown v. Sullivan, 921 F.2d 1233, 1235

“Substantial evidence is more than a scintilla,

but less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.”
Cir. 1983).

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

In determining whether substantial evidence exists,

a court must view the record as a whole, taking into account
evidence both favorable and unfavorable to the Commissioner’s
decision.

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986);

Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, at *4 (S.D. Ala. June
14, 1999).
V.

Statutory and Regulatory Framework
An individual who applies for Social Security disability

benefits must prove his or her disability.
Disability

is

substantial

defined

gainful

as

the

“inability

activity

by

reason

20 C.F.R. § 404.1512.
to
of

engage
any

in

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);

The

see

also

20

C.F.R.

§

404.1505(a).

Social

Security regulations provide a five-step sequential evaluation
process for determining whether a claimant has proven his or her

5

disability.

20 C.F.R. § 404.1520.

The claimant must first prove that he or she is not engaged
in substantial gainful activity. Carpenter v. Comm’r of Soc. Sec.,
614 F. App’x 482, 486 (11th Cir. 2015) (per curiam).

The second

step requires the claimant to prove that he or she has a severe
impairment or combination of impairments.

Id.

If, at the third

step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the claimant
is automatically found disabled regardless of age, education, or
work experience.

Id.

If the claimant cannot prevail at the third

step, the ALJ must determine the claimant’s residual functional
capacity (“RFC”) before proceeding to step four. Id. A claimant’s
RFC is an assessment, based on all relevant medical and other
evidence, of a claimant’s remaining ability to work despite his or
her impairments.
Cir. 1997).

Lewis v. Callahan, 125 F.3d 1436, 1440 (llth

Once a claimant’s RFC is determined, the evaluation

proceeds to the fourth step, where the claimant must prove an
inability to perform his or her past relevant work.

Carpenter,

614 F. App’x at 486.
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that the claimant is capable of engaging in another kind of
substantial gainful employment which exists in significant numbers
in the national economy, given the claimant’s RFC, age, education,

6

and work history.

Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.

1985) (per curiam). If the Commissioner can demonstrate that there
are such jobs the claimant can perform, the burden then shifts
back to the claimant to prove his or her inability to perform those
jobs in order to be found disabled.

Hale v. Bowen, 831 F.2d 1007,

1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562,
1564 (11th Cir. 1985)).
VI.

Discussion
A.

The ALJ did not commit reversible error
in failing to expressly discuss Listing
1.04.

In her brief, Plaintiff argues that she meets Listing 1.04
for disorders of the spine based on MRI evidence showing herniated
discs with nerve root abutment and compression in her lumbar spine,
clinical symptoms of radiating nerve pain and numbness in her left
leg, and a positive straight leg test.

(Doc. 9 at 4).

Also in

support of her argument that she meets Listing 1.04, Plaintiff
points to a 2016 MRI showing herniations in her cervical spine
with canal narrowing, as well as diagnoses of cervical degenerative
disc disease and cervical radiculopathy.

(Id.).

Plaintiff’s sole

assertion of error is that the ALJ erred in failing to discuss
whether her impairments meet Listing 1.04.

(Id. at 1).

The

Government counters that the ALJ was not required to discuss all
listings that could apply to Plaintiff’s claim and that Plaintiff
has failed to point to evidence establishing that she meets all of

7

the specified medical criteria for the Listing.

(Doc. 10 at 5).

In the instant case, the ALJ found that Plaintiff has the
severe impairments of cervical and lumbar issues and residuals
from right foot surgeries. (Doc. 8 at 20). The ALJ found, however,
that Plaintiff’s impairments, when considered individually and in
combination, did not meet, medically equal, or functionally equal
any of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).

(Id.).

In explaining his conclusion at step three of the sequential
evaluation process, the ALJ wrote: “The claimant’s musculoskeletal
impairments do not result in inability to ambulate effectively or
inability to perform fine and gross movements, and therefore are
not of the level of severity contemplated at Medical Listing 1.01.”
(Id.).
The ALJ further found that Plaintiff has the RFC to perform
a range of light work with the following additional limitations:
Plaintiff requires the option to stand or sit alternatively at
will, provided she is not off task more than ten percent of the
work period; she cannot climb ladders, ropes, or scaffolds; she
can occasionally climb ramps and stairs; and she can occasionally
balance, stoop, kneel, crouch, and crawl.

(Id. at 20-21).

Plaintiff asserts that the ALJ referenced only Listing 1.01
in his discussion at step three of the sequential evaluation
process and contends that the ALJ’s discussion at that step should

8

have

specifically

referenced

disorders of the spine.

Listing

1.04,

which

addresses

Plaintiff’s argument is without merit.

As an initial matter, the Court notes the following:
20 C.F.R. Part 404, Subpart P, Appendix 1 §
1.01 is not a listing at all, but rather a
descriptor for the category of listings that
follows. The specific listings contained in
the musculoskeletal category described in
section 1.01 are as follows: Listing 1.02:
Major dysfunction of a joint(s) (due to any
cause); Listing 1.03: Reconstructive surgery
or surgical arthrodesis of a major weightbearing joint; Listing 1.04: Disorders of the
spine; Listing 1.05: Amputation (due to any
cause); Listing 1.06: Fracture of the femur,
tibia, pelvis, or one or more of the tarsal
bones; Listing 1.07: Fracture of an upper
extremity; and Listing 1.08: Soft tissue
injury (e.g. burns).
Rabon v. Colvin, 2014 U.S. Dist. LEXIS 16022, at *16, 2014 WL
537560, at *5 (M.D.N.C. Feb. 10, 2014) (citations and internal
quotation marks omitted); see also Zatz v. Astrue, 346 F. App'x
107, 110–11 (7th Cir. 2009) (finding claimant’s argument that the
ALJ erred in “referencing only Listing 1.01 (the title heading for
the

general

category

of

musculoskeletal

impairments)

but

not

Listing 1.04 (the subheading for disorders of the spine)” without
merit).

Thus, in complaining that the ALJ’s decision specifically

references only Listing 1.01, Plaintiff fails to recognize the
important fact that Listing 1.01 is merely a descriptor or title
heading

for

the

category

of

listings

impairments, which include Listing 1.04.

9

for

musculoskeletal

Although the ALJ did not explicitly reference Listing 1.04,
the undersigned finds, based upon a thorough review of the record,
that

the

ALJ

implicitly

found

that

Plaintiff’s

impairments,

whether alone or in combination, do not meet or medically equal
Listing 1.04.

The Court further finds that substantial evidence

in the record supports that finding.
First,

contrary

to

Plaintiff’s

assertion,

the

ALJ

did

explain, albeit briefly, why Plaintiff’s impairments are not of
the requisite severity to meet or medically equal the Listing,
when he stated that Plaintiff’s impairments “do not result in
inability to ambulate effectively or inability to perform fine and
gross movements[.]”
Listing

1.04

at

Further, although the ALJ did not mention

step

three,

he

did

outline

and

discuss

the

Plaintiff’s treatment for her lower back and neck issues, the
results of her lumbar and cervical spine MRIs, and other relevant
medical evidence in his analysis of Plaintiff’s RFC.
When a claimant, such as Plaintiff in the instant case,
contends that she has an impairment meeting the listed impairments,
she “must present specific medical findings that meet the various
tests

listed

under

the

description

of

the

applicable

impairment[.]”

Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986)

(per curiam).

A diagnosis of a listed impairment alone is not

sufficient.
1991).

Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir.

The record must contain corroborative medical evidence

10

supported

by

clinical

and

laboratory

findings.

Id.;

accord

Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“Each impairment [in
the Listings] is defined in terms of several specific medical
signs, symptoms, or laboratory test results.

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 those criteria, no matter how severely, does not qualify.”)
(emphasis in original).
An ALJ’s failure to expressly address whether a claimant meets
a particular Listing is not error where substantial evidence in
the record supports the conclusion that the claimant did not meet
the Listing.

See Turberville ex rel. Rowell v. Astrue, 316 F.

App’x 891, 893 (11th Cir. 2009) (per curiam) (“We conclude that —
though the ALJ did not explicitly discuss why [the claimant] did
not actually meet Listing 112.05 — substantial record evidence
supports that [the claimant’s] condition did not actually or
functionally meet Listing 112.05 and, therefore, supports the
ALJ’s ultimate conclusion that [the claimant] was not disabled.”;
Keane v. Comm’r of Soc. Sec., 205 F. App’x 748, 750 (llth Cir.
2006) (per curiam) (stating that an ALJ’s finding that a claimant’s
impairments did not meet a particular listing can be implied);
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (“[W]hile
the ALJ did not explicitly state that the appellant’s impairments
were not contained in the listings, such a determination was

11

implicit in the ALJ’s decision . . . There may be an implied
finding that a claimant does not meet a listing.”); Barron v.
Sullivan, 924 F.2d 227, 230 n.3 (11th Cir. 1991) (stating that “it
would be helpful to appellate courts if the ALJ would specifically
tie his findings to particular listings that the claimant has
argued[,]” but finding that an ALJ’s failure to do so is not
reversible error where “the evidence supports the conclusions of
the ALJ, despite the lack of any particular discussion of [the
claimant’s] impairment as it relates to [the claimed] Listing”).
To meet Listing 1.04, a claimant must establish the following
criteria:
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 neuro-anatomic 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);
or
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

12

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, § 1.04.
With respect to the objective record evidence in the instant
case, spinal x-rays taken in February 2013 revealed no definite
disc space narrowing. (Doc. 8 at 366). An MRI taken of Plaintiff’s
lumbar

spine

on

February

18,

2013,

revealed

“shallow

non-

neurocompressive” disc herniations at L4-L5 and L5-S1 with “mild
caudal subligamentous distention of disk material.”

(Id. at 367).

An x-ray of Plaintiff’s lumbar spine taken in February 2015 showed
some abnormal straightening and degenerative disc disease.
at 419).

(Id.

An MRI of Plaintiff’s lumbar spine taken on March 4,

2015, showed a small broad-based central herniation at L5-S1
closely

approximating

the

descending

S1

nerve

root

without

significant distortion to the path of the descending S1 nerve root
and with mild narrowing to the left exiting foramina.
416).

(Id. at

The March 2015 MRI also showed a mild broad-based herniation

without migration with small annular tear at L4-L5, with disc
material slightly effacing the descending L5 nerve roots creating
mild foraminal encroachment on the left and borderline foraminal

13

encroachment

on

the

right.

(Id.).

A

pre-surgery

MRI

of

Plaintiff’s lumbar spine taken on September 9, 2015, showed a
posterior disc protrusion at L4-L5 abutting both L5 nerve roots
without associated canal stenosis, and a large left parasagittal
disc protrusion at L5-S1 producing moderate canal stenosis and
appearing to abut and compress the left S1 and left S2 nerve roots.
(Id. at 424).
An x-ray of Plaintiff’s left shoulder taken on September 19,
2016, after Plaintiff complained of neck and left shoulder pain,
was normal, while a cervical spine x-ray taken at that time showed
some degenerative disc disease with abnormal straightening and
reversal of curvature.

(Id. at 462).

An MRI of Plaintiff’s

cervical spine taken on September 30, 2016, revealed a moderate
left paracentral disc herniation at C5-C6 with moderate to severe
central canal narrowing, and a left paracentral small herniation
at C4/C5 with mild to moderate central canal narrowing.

(Id. at

463).
The record shows that Plaintiff first sought treatment for
her lower back in 2013 at American Family Care, where she had xrays done, received shots, and was prescribed medication.
366).

(Id. at

Plaintiff presented for treatment to Roger Setzler, M.D.,

an orthopedic surgeon, on February 11, 2013, stating that she had
woken up a few days earlier with severe back pain and that she did
not know of anything that she did in the days before that to

14

trigger the pain.

(Id.).

Dr. Setzler gave Plaintiff medication,

recommended physical therapy treatments, and ordered a lumbar
spine MRI.

(Id.).

After reviewing Plaintiff’s MRI results, Dr.

Setzler referred Plaintiff to Ralph Irvin, M.D. for a lumbar
epidural steroid injection, which was performed on March 12, 2013.
(Id. at 368-70).

After Plaintiff received the lumbar epidural

steroid injection in March 2013, the record shows that Plaintiff
did not present to Dr. Setzler again until February 9, 2015.

(See

id. at 419).
Dr. Setzler’s records from that visit note that Plaintiff
“had an epidural two years ago, did beautifully.”

(Id.).

Dr.

Setzler further noted that the effects of the epidural had been
wearing off over the past few months and that Plaintiff had
experienced severe pain the day before that caused her to go to
the emergency room and have a Toradol shot done, which provided no
relief.

(Id.).

Examination revealed a positive straight leg

raising bilaterally, with the right worse than the left.

(Id.).

Dr. Setzler noted no definite neurologic deficit and found normal
reflexes and 5/5 strength.

(Id.).

He gave Plaintiff Depo-Medrol

and pain medication and set her up for another epidural steroid
injection, which Plaintiff underwent on February 23, 2015.
at 418-19).

(Id.

After Plaintiff’s injection, Dr. Setzler ordered

another lumbar MRI.

(Id. at 417).

On March 5, 2015, when Dr.

Setzler went over the findings of the MRI with Plaintiff, he noted

15

that Plaintiff was “somewhat better but still fairly miserable”
and recommended that Plaintiff get a second opinion from Tim S.
Revels, M.D., an orthopedic surgeon specializing in spine care.
(Id. at 415).
In his initial examination of Plaintiff, Dr. Revels discussed
the possibility of Plaintiff undergoing surgery, and Plaintiff
agreed to proceed with the surgery.

Dr. Revels ordered a new

lumbar MRI due to Plaintiff’s worsening radiculitis and impending
surgery.

(Id. at 423).

A physical examination of Plaintiff’s

lumbosacral spine performed by Dr. Revels revealed no swelling,
deformities,

weakness,

atrophy,

or

alterations

of

tone,

and

paraspinal muscle strength within normal limits.

(Id. at 422).

Examinations

no

of

both

lower

extremities

showed

deformities, weakness, atrophy, or alterations of tone.
422-23).

(Id. at

However, Plaintiff’s lumbar range of motion was limited

on all planes tested due to pain, spasm, and stiffness.
422).

swelling,

On

September

17,

2015,

Plaintiff

underwent

laminectomy, decompression, and left discectomy.

(Id. at
a

L5-S1

(Id. at 433-34).

The record from Plaintiff’s post-operative visit on September 29,
2015 lists residual symptoms, including pain, paresthesia, and
left leg pain, but states that Plaintiff’s pre-operative symptoms
had improved.

(Id. at 438).

The report from another post-

operative visit on October 28, 2015 contains similar notations,
but it also notes: “Pt states much better since surgery.

16

Starting

to get activity.”

(See id. at 441).

On April 6, 2016, Plaintiff

returned to Dr. Revels with complaints of lower back and left leg
pain and numbness. Dr. Revels noted:
Her current symptoms include low back pain and
left
leg
pain/numbness.
The
pain is
improving. It is currently mild (0-2/10) in
severity, has an aching, a dull, a sharp, a
burning, and a throbbing quality and radiates
into the left sciatic nerve distribution
distribution.
The left leg pain developed
several years ago and is localized to the
sciatic nerve distribution distribution. The
pain is intermittent and is mild and developed
slowly over time.
The symptoms occur on a
daily basis. She states this is a recurrence
of pain that first occurred years ago.
(Id. at 446).
spine

showed

A physical examination of Plaintiff’s lumbosacral
tenderness

and

a

limited

range

of

motion,

but

examinations of Plaintiff’s lower extremities showed full ranges
of

motion,

normal

reflexes,

and

no

tenderness,

deformities, instability, weakness, or atrophy.

swelling,

(Id. at 448).

Plaintiff was given another lumbar epidural steroid injection on
April 6, 2016, and the record shows that she was scheduled for at
least one additional injection.

(Id. at 448-49, 453).

On September 19, 2016, Plaintiff returned to Dr. Setzler with
complaints of neck pain, left shoulder pain, and pain radiating
down the arm.

(Id. at 462).4

Dr. Setzler’s physical examination

4

Plaintiff testified at her hearing that she began
experiencing neck pain six or seven years earlier but that she
17

revealed some shoulder tenderness and tenderness in the posterior
cervical area, as well as left triceps weakness.
impingement signs were minimal.

(Id.).

(Id.).

However,

Dr. Setzler prescribed an

anti-inflammatory medication and ordered an MRI of Plaintiff’s
cervical spine.

(Id.).

On October 6, 2016, after receiving the

results of the cervical MRI, Dr. Setzler noted “a fairly large
central

herniated

disc

at

C4-5

but

no

real

significant

neuroforaminal narrowing,” as well as a central herniated disc at
C5-C6 and a small central disc at C6-C7, “none of which appear to
be causing significant neuroforaminal narrowing.”

(Id. at 464).

Dr. Setzler continued Plaintiff on the anti-inflammatory, which
seemed to be helping, and noted that she may want to consider
getting an epidural block if her symptoms did not improve.
Dr.

Setzler

also

spoke

with

Plaintiff

about

diet,

(Id.).

exercise,

conditioning, and posture, and advised her to follow up with his
office if she had further problems.

(Id.).

Dr. Setzler concluded

his notes by stating that he “certainly [did] not feel that she is
a surgical candidate at this point.”
Viewing
satisfied

the

that

record
the

in

ALJ’s

its

(Id.).

entirety,

implied

the

finding

undersigned

that

is

Plaintiff’s

impairments do not meet or equal Listing 1.04 is supported by the

only sought treatment for her neck more recently when her pain
worsened. (Doc. 8 at 49).

18

substantial
Plaintiff’s

evidence
counsel

detailed
clarified

above.
that

the

At

oral

focus

of

argument,
Plaintiff’s

argument is Listing 1.04(A), thus effectively conceding that the
record evidence does not support a finding that Plaintiff meets
Listings 1.04(B) or 1.04(C).

Indeed, while Plaintiff alleged

generally in her brief that she meets the criteria for Listing
1.04, she did not specifically argue that she meets sections (B)
or (C), and the record does not establish that she suffered from
either spinal arachnoiditis or lumbar spinal stenosis resulting in
pseudoclaudication and an inability to ambulate, as are required
by those sections.
There is no question that certain aspects of Plaintiff’s
treatment record satisfy particular facets of Listing 1.04(A).
Plaintiff points to record evidence of herniated discs in her
lumbar spine with nerve root abutment and compression, and the
Commissioner concedes that Plaintiff has herniated discs in her
neck and lower back.

Plaintiff also argues that her clinical

symptoms of ongoing nerve pain and numbness radiating down her
left leg and positive straight leg test support a finding that she
meets Listing 1.04(A).

However, while there is evidence in the

record that certain criteria of Listing 1.04(A) are or may be met,
Plaintiff has not met her burden of demonstrating the existence of
each criterion.
To meet Listing 1.04(A), evidence of nerve root compression

19

must be “characterized by neuro-anatomic 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).”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A).
treatment

records

do

provide

evidence

of

Although her
neuro-anatomic

distribution of pain, limitation of motion of the spine, sensory
loss, and positive straight-leg test, Plaintiff fails to point to
evidence that nerve root compression from the herniated discs in
her lumbar spine was “characterized by” motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss.

Physical examinations by Dr. Revels

revealed no atrophy in Plaintiff’s lumbosacral spine or lower
extremities. (See Doc. 8 at 422-23, 448; see also id. at 470).
Plaintiff’s

physical

examination

findings of normal strength.
72).

records

also

include

several

(See id. at 419, 422-23, 448, 470-

In the records from a physical examination of Plaintiff

performed prior to her L5-S1 epidural steroid injection on February
23, 2015, Charles E. Hall, M.D. stated that “[n]o gross motor
deficits were noted in the lower extremities.”

(Id. at 418).

At

oral argument, Plaintiff’s counsel did not cite a single finding
of atrophy or muscle weakness associated with Plaintiff’s lumbar
impairments.

In view of the foregoing, there is substantial

20

evidence in the record that any evidence of nerve root compression
from Plaintiff’s lumbar impairments was not characterized by motor
loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory loss or reflex loss, which is one of the
criteria required by Listing 1.04(A).
Although Plaintiff’s argument focuses primarily on her lower
back, the Court must also address Plaintiff’s contention that her
cervical disc herniations and attendant complaints of radiating
pain are sufficient to meet Listing 1.04(A).

After reviewing the

record, the undersigned finds that this argument is also without
merit and that the ALJ’s implied finding that Plaintiff’s cervical
impairments do not meet or equal Listing 1.04(A) is supported by
the substantial evidence.
evidence

in

the

record

Indeed, Plaintiff has pointed to no
to

indicate

that

her

cervical

disc

herniations and associated symptoms meet all of the criteria of
Listing 1.04(A).
As an initial matter, Plaintiff’s cervical herniated discs
are inarguably disorders of the spine.

However, in contrast with

Plaintiff’s lumbar herniations, where MRI results showed nerve
root compression and abutment, there is substantial evidence in
the record that Plaintiff’s cervical disc herniations did not
result in compromise of a nerve root.

On September 19, 2016, Dr.

Setzler noted that “[i]mpingement signs are minimal.”
462).

(Id. at

On October 6, 2016, after reviewing Plaintiff’s cervical

21

MRI, Dr. Setzler stated that none of the herniated discs in
Plaintiff’s cervical spine appeared to be causing significant
neuroforaminal narrowing.

(Id. at 464).

In the same report, Dr.

Setzler remarked that he did not consider Plaintiff a candidate
for neck surgery.

(Id.).

In addition, records documenting physical examinations of
Plaintiff’s neck and cervical spine contain normal findings.

On

September 9, 2015, Dr. Revels noted full and painless range of
motion in all planes and no swelling, deformities, weakness,
atrophy,
spine.
and

or

alterations

(Id. at 422).

right

completely
physical

of

tone

Plaintiff’s

neck/cervical

Dr. Revels’ examination of Plaintiff’s left

upper

extremities

normal

findings.

examination

in

notes

on

that

(Id.).
from

date

likewise

However,

September

19,

produced

Dr.

Setzler’s

2016,

document

tenderness in the neck and shoulder and weakness in Plaintiff’s
left triceps.

(Id. at 462).

Even assuming arguendo that Plaintiff were able to establish
that her cervical disc herniations resulted in compromise of a
nerve root, Plaintiff has still failed to point to evidence of
limitation of motion of the spine or to evidence of sensory or
reflex loss in her treatment records.

As noted supra, Dr. Revels’

physical examination of Plaintiff’s neck and cervical spine in
2015 showed a complete and painless range of motion.
Although

Dr.

Setzler’s

September

22

2016

(Id. at 422).

examination

revealed

tenderness and left triceps weakness, his report omits mention of
Plaintiff’s cervical range of motion.

(See id. at 462).

Further,

while Dr. Setzler diagnosed Plaintiff with cervical radiculopathy
and noted that she was having “a lot of left shoulder pain, pain
radiating down the arm[,]” his records do not show that Plaintiff
had numbness, sensory loss, or reflex loss as a result of her
cervical impairments.

(See id. at 462, 464).

The law is clear that it is not sufficient to establish some
of the criteria of a Listing.
criteria.

Plaintiff must establish all of the

See Sullivan, 493 U.S. at 530 (“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 those criteria, no matter how severely, does not qualify.”)
(emphasis

in

original).

This

Plaintiff

has

failed

to

do.

Accordingly, her claim must fail.
VII.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties, it is hereby ORDERED that the decision of the Commissioner
of Social Security denying Plaintiff’s claim for a period of
disability and disability insurance benefits be AFFIRMED.
DONE this 27th day of March, 2019.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

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