Schenning v. Colvin
Filing
28
ORDER denying 26 Motion for Reconsideration. Signed by Magistrate Judge Stephanie A Gallagher on 3/7/2017. (kw2s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE
101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
(410) 962-7780
Fax (410) 962-1812
March 7, 2017
LETTER TO COUNSEL
RE:
David Anthony Schenning v. Commissioner, Social Security Administration;
Civil No. SAG-15-3459
Dear Counsel:
Presently pending is Plaintiff David Anthony Schenning’s Motion to Reconsider the
Court’s December 22, 2016 Letter Order, which, inter alia, granted Defendant Social Security
Administration’s (“the Commissioner”) Motion for Summary Judgment. [ECF No. 26]. I have
also reviewed the Commissioner’s opposition. [ECF No. 27]. Mr. Schenning asks the Court to
reconsider granting the Commissioner’s Motion, again arguing that the ALJ provided an
inadequate Listing analysis. [ECF No. 26]. No hearing is necessary. See Local Rule 105.6 (D.
Md. 2016). For the reasons set forth below, Mr. Schenning’s motion is DENIED.
I.
BACKGROUND
On November 13, 2015, Mr. Schenning petitioned this Court to review the Social
Security Administration’s final decision to deny his claims for Disability Insurance Benefits and
Supplemental Security Income. [ECF No. 1]. Mr. Schenning’s sole argument on appeal was
that the ALJ provided an inadequate Listing analysis. [ECF No. 18]. Specifically, Mr.
Schenning argued that the ALJ failed to apply specific record evidence to the Listing criteria, in
violation of the dictates in Fox v. Colvin, 632 F. App’x 750 (4th Cir. 2015). Id. However, the
Court found that the ALJ did not violate Fox because the ALJ noted a lack of evidence to support
a finding that Plaintiff suffered from nerve root compression, as cited in Listing 1.04A. [ECF
No. 25]. Accordingly, the Court denied Mr. Schenning’s Motion for Summary Judgment,
granted the Commissioner’s Motion for Summary Judgment, and affirmed the Commissioner’s
judgment pursuant to sentence four of 42 U.S.C. § 405(g). Id. Subsequently, on January 3,
2017, Mr. Schenning filed his Motion to Reconsider. [ECF No. 26].
II.
ANALYSIS
In his motion, Mr. Schenning contends that this Court failed to properly evaluate the
ALJ’s Listing analysis under Fox. Specifically, Mr. Schenning contends that the Court failed to
evaluate the evidentiary requirements of nerve root compression. [ECF No. 26]. For the reasons
discussed below, the ALJ’s Listing analysis was proper, and summary judgment in favor of the
Commissioner was warranted.
David Anthony Schenning v. Commissioner, Social Security Administration
Civil No. SAG-15-3459
March 7, 2017
Mr. Schenning argues that this Court erred by affirming the ALJ’s judgment under Fox
because “there [was] no evidence in the record of [nerve root compression].” Id. (citing [ECF
No. 25]). Specifically, Mr. Schenning contends that the Court failed to evaluate the symptoms of
nerve root compression, including 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 positive straight leg raising tests (sitting and supine).
Id. (citing 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 1.04A). To support his argument, Mr.
Schenning cites the Court’s holding that, “because there is a lack of evidence to support a finding
that [Mr. Schenning] suffered from nerve root compression…I express no opinion as to whether
the ALJ correctly analyzed the remaining subparts of Listing 1.04A, such as muscle weakness,
sensory loss, or positive straight leg raising tests.” Id. (citing [ECF No. 25]).1 However,
contrary to Mr. Schenning’s assertion, the ALJ conducted a proper Listing analysis, and
summary judgment in the Commissioner’s favor was appropriate. Although Mr. Schenning
correctly notes that nerve root compression can be characterized by—i.e., distinguished by—the
four symptoms listed above, Radford v. Colvin, 734 F.3d 288, 298 (4th Cir. 2013), the presence
of those symptoms does not automatically warrant a finding of nerve root compression under the
Listing. As the Fourth Circuit concluded in Radford, “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.” Radford, 734 F.3d at 294 (emphasis added). That excerpt from Radford is written
in the conjunctive, indicating that a showing that each of the symptoms are present does not
necessarily mean that the claimant has suffered or can be expected to suffer from nerve root
compression.
Moreover, the ALJ provided substantial evidence to support his determination that Mr.
Schenning “[did] not have evidence of nerve root compression” to meet or medically equal the
criteria of Listing 1.04A. (Tr. 26). Indeed, as noted in the Letter Order, Mr. Schenning was
never diagnosed with nerve root compression, and no objective testing reflected impingement of
a nerve root. In addition, the ALJ noted that Mr. Schenning’s “physical examinations…were
relatively normal,” revealed “very mild degenerative disc disease at L4-L5,” and “showed no
acute findings,” including “no compression fractures or spondylolisthesis.” (Tr. 28). The ALJ
also noted that, on examination, Mr. Schenning demonstrated “normal” gait and station,
“normal” upper and lower extremity strength, and “full strength in his lower extremities.” (Tr.
29). Furthermore, the ALJ noted that Mr. Schenning “was able to ambulate without [an]
assistive device,” “was able to do a full squat without assistance,” and demonstrated “continued
activities of daily living” that “belie[d] a debilitating condition.” Id. As a result, the ALJ
concluded that “the medical evidence of record confirms a continued back impairment, but not a
completely debilitating condition.” Id. Considering the ALJ’s evidence in support of his Listing
analysis, and Mr. Schenning’s lack of evidence to the contrary, I find that the ALJ’s Step Three
1
Mr. Schenning also cites Coulter v. Commissioner, Soc. Sec., No. 16-2175, (4th Cir. Dec. 20, 2016) (unpublished)
to argue that the Commissioner concedes Mr. Schenning’s allegation of error. [ECF No. 18, pp. 5-6]. Specifically,
Mr. Schenning notes that the Commissioner in Coulter “voluntarily filed an unopposed motion to remand the case
on the [same] grounds” as the instant matter. [ECF No. 26]. However, contrary to Mr. Schenning’s assertion, the
Commissioner did not specify the basis for her decision to voluntarily remand Coulter. See [ECF No. 26, Ex. 1].
Accordingly, Mr. Schenning’s reliance on Coulter is misplaced.
2
David Anthony Schenning v. Commissioner, Social Security Administration
Civil No. SAG-15-3459
March 7, 2017
analysis was proper, and summary judgment in the Commissioner’s favor was appropriate.
Therefore, Mr. Schenning’s Motion to Reconsider is denied.
III.
CONCLUSION
For the reasons set forth herein, Mr. Schenning’s Motion to Reconsider, (ECF No. 26), is
DENIED. The Commissioner’s judgment is AFFIRMED pursuant to sentence four of 42 U.S.C.
§ 405(g).
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge
3
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