Loescher v. Colvin
DECISION AND ORDER. The Plaintiff's Motion for Judgment on the Pleadings 9 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 12 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 4/24/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NATHANIEL CHARLES LOESCHER,
Case # 16-CV-300-FPG
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Nathaniel Charles Loescher (“Loescher” or “Plaintiff”) brings this action pursuant to the
Social Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner
of Social Security (“the Commissioner”) that denied his application for disability insurance
benefits (“DIB”) under Title II of the Act. ECF No. 1. The Court has jurisdiction over this
action under 42 U.S.C. § 405(g).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 9, 12. For the reasons that follow, Plaintiff’s motion is GRANTED,
the Commissioner’s motion is DENIED, and this matter is REMANDED to the Commissioner
for further administrative proceedings.
On January 16, 2013, Loescher protectively applied for DIB with the Social Security
Administration (“the SSA”). Tr.2 192-98. He alleged that he had been disabled since March 28,
2011 due to a bulging herniated disc in his low back and left sciatica impingement. Tr. 212. On
September 30, 2014, a hearing was held before Administrative Law Judge Michael W. Devlin
Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
References to “Tr.” are to the administrative record in this matter.
(“the ALJ”) at which Loescher and a vocational expert (“VE”) appeared and testified. Tr. 31-59.
On December 22, 2014, the ALJ issued a decision finding that Loescher was not disabled within
the meaning of the Act.
On February 25, 2016, the Appeals Council denied
Loescher’s request for review. Tr. 1-4. Thereafter, Loescher commenced this action seeking
review of the Commissioner’s final decision. ECF No. 1.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (quotation marks omitted). It is not the Court’s function to “determine de novo
whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
The ALJ’s Decision
The ALJ’s decision analyzed Loescher’s claim for benefits under the process described
above. At step one, the ALJ found that Loescher had not engaged in substantial gainful activity
since the alleged onset date. Tr. 21. At step two, the ALJ found that Loescher has the following
severe impairments: low back disc herniation, cervical spine pain, and obesity. Tr. 21. At step
three, the ALJ found that these impairments, alone or in combination, did not meet or medically
equal an impairment in the Listings. Tr. 22.
Next, the ALJ determined that Loescher retained the RFC to perform sedentary work3
with additional limitations.
Specifically, the ALJ found that Loescher can
occasionally lift, carry, push, and pull 10 pounds and frequently lift and carry less than 10
pounds; can stand and walk at least two hours and can sit about six hours in an eight hour
workday; must be allowed to stand for one to two minutes after sitting for approximately 30
minutes and sit for one to two minutes after standing for approximately 15 minutes; can
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; cannot climb
ladders, ropes, or scaffolds; and can frequently reach and handle bilaterally. Tr. 22.
At step four, the ALJ found that this RFC prevents Loescher from performing his past
relevant work. Tr. 24. At step five, the ALJ relied on the VE’s testimony and found that
Loescher can adjust to other work that exists in significant numbers in the national economy
given his RFC, age, education, and work experience. Tr. 25. Specifically, the VE testified that
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
Loescher could work as an order clerk and brake linings coater. Tr. 25. Accordingly, the ALJ
concluded that Loescher was not “disabled” under the Act. Tr. 25-26.
Loescher argues that remand is required because the ALJ erred at step three when he
failed to explain why Loescher’s impairments did not meet or medically equal Listing 1.04:
Disorders of the Spine.4 ECF No. 9-1, at 12-15.
At step three of the disability analysis, the ALJ examines whether a claimant’s
impairment meets or medically equals the criteria of a Listings impairment.
20 C.F.R. §
404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the
durational requirement (20 C.F.R. § 404.1509), the claimant is disabled.
If not, the ALJ
determines the claimant’s RFC and proceeds to the next steps of the analysis. 20 C.F.R. §
To match an impairment in the Listings, the claimant’s impairment “must meet all of the
specified medical criteria” of a listing. Barber v. Comm’r of Soc. Sec., 6:15-CV-0338
(GTS/WBC), 2016 WL 4411337, at *3 (N.D.N.Y. July 22, 2016) (citing Sullivan v. Zebley, 493
U.S. 521, 530 (1990)). “An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Id. An impairment may also be “medically equivalent” to a
listed impairment if it is “at least equal in severity and duration to the criteria of any listed
impairment.” Id. (citation omitted).
An ALJ must explain why a claimant failed to meet or equal the Listings “[w]here the
claimant’s symptoms as described by the medical evidence appear to match those described in
the Listings.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 273 (N.D.N.Y. 2009) (citation omitted).
Loescher advances another argument that he believes requires reversal of the Commissioner’s decision.
ECF No. 9-1, at 16-20. However, because the Court disposes of this matter based on the ALJ’s error at step three,
that argument need not be reached.
Importantly, it is the ALJ’s responsibility—and not the job of the Commissioner’s attorney—to
“build an accurate and logical bridge from the evidence to [his or her] conclusion to enable a
meaningful review.” Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d 133, 142 (N.D.N.Y.
2012). The Court “cannot . . . conduct a review that is both limited and meaningful if the ALJ
does not state with sufficient clarity the legal rules being applied and the weight accorded the
evidence considered.” Id. “Nevertheless, an ALJ’s unexplained conclusion at step three of the
analysis may be upheld where other portions of the decision and other clearly credible evidence
demonstrate that the conclusion is supported by substantial evidence.” Yeomas v. Colvin, No.
13-CV-6276P, 2015 WL 1021796, at *17 (W.D.N.Y. Mar. 10, 2015) (citation, quotation marks,
and alterations omitted); see also Berry v. Schweiker, 675 F.2d 464, 468-69 (2d Cir. 1982)
(affirming the ALJ’s step three decision even though he did not set forth a specific rationale
“since portions of the ALJ’s decision and the evidence before him indicate that his conclusion
was supported by substantial evidence”).
Here, the ALJ found at step three that Loescher did not have an impairment or
combination of impairments that met or medically equaled the severity of a Listings impairment.
Tr. 22. In making this finding, the ALJ merely stated that the Listings “have been considered,
with particular attention given to Listing 1.04” and provided no explanation as to why Loescher
failed to meet the requirements of this Listing. Id. For the reasons that follow, the ALJ’s
conclusory finding that Loescher failed to meet Listing 1.04 is inadequate in light of the evidence
supporting Loescher’s contention that he meets the requirements. See Blais v. Astrue, No. 08CV-01223 (DNH), 2010 WL 2400177, at *4 (N.D.N.Y. May 13, 2010) (finding that the ALJ
erred when he failed to explain why the plaintiff did not meet Listing 1.04A even though there
was evidence in the record that he did).
Listing 1.04A: Disorders of the Spine provides, in relevant part:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in a
compromise of a nerve root (including cauda equine) or the spinal
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).
20 C.F.R. Part 404, Subpart P, App’x 1, § 1.04A. Thus, to establish that he meets the Listing,
Loescher must demonstrate that he suffers from nerve root compression and each of the four
characteristics set forth in the Listing during the relevant time period.
As to “nerve root compression,” a June 14, 2011 MRI revealed that Loescher had “nerve
root displacement” and “thecal sac impingement.” Tr. 253. Loescher’s neurosurgeon David G.
Storrs, M.D. noted that his disc herniation “is certainly compressing the S1 root and he does have
fairly good clinical history and findings for an S1 radiculopathy.” Tr. 281. This evidence
supports Loescher’s contention that he suffers from nerve root compression. See Kerr v. Astrue,
No. 09-CV-01119 (GLS), 2010 WL 3907121, *5-6 (N.D.N.Y. Sept. 7, 2010) (concluding that
nerve root compression was suggested by images depicting “impingement in the thecal sac”),
report and recommendation adopted, 2010 WL 3893922 (N.D.N.Y. Sept. 30, 2010); Blais, 2010
WL 2400177, at *4 (noting that radiculopathy is a “disorder of the spinal nerve roots” and
suggests nerve root compression) (citations omitted). As the Commissioner points out, however,
an October 14, 2011 MRI revealed “no disc herniation or central or foraminal stenosis,” no
“significant impingement, and “no significant change.” Tr. 270-72.
As to “neuro-anatomic distribution of pain,” the record contains evidence that Loescher
experienced lower back pain that radiated into his left hip, buttocks, and leg. See, e.g., Tr. 258,
264, 273, 281, 288, 293, 303, 483, 517. The record also demonstrates that Loescher had a
limited range of motion in his lumbar spine. See, e.g., Tr. 281, 289, 294, 304, 519. But 484
Listing 1.04A also requires demonstrated motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss. Several of Loescher’s
examinations revealed that he had muscle weakness and difficulty walking and getting on and off
chairs or examination tables. See, e.g., Tr. 266-67, 273, 281, 518. As the Commissioner points
out, however, there is also evidence that Loescher did not have weakness, walked with a normal
gait, had full and intact motor strength in his neck and extremities, and that he could heel toe
walk without difficulty. See, e.g., Tr. 258, 289, 484. The record also demonstrates that Loescher
had positive straight-leg raising tests, which the Listing requires when there is a low back
impairment. See, e.g., Tr. 259, 267, 273, 281, 289, 304, 519.
It is unclear from the ALJ’s decision whether he truly considered Listing 1.04A or which
criteria he found Loescher failed to establish. As explained above, the record contains evidence
that Loescher meets the requirements of Listing 1.04A, but it also contains some evidence to the
Thus, the Court cannot conclude that the ALJ’s determination is supported by
substantial evidence because he failed to explain his reasoning and there is conflicting medical
evidence in the record. See Yeomas, 2015 WL 1021796, at *19 (noting that conflicting evidence
as to whether the plaintiff met Listing 1.04A was “sufficient to require the ALJ to assess the
totality of the evidence and to explain his conclusion”); Quinones v. Colvin, No. 6:13-cv-06603
(MAT), 2014 WL 6885908, *6 (W.D.N.Y. Dec. 8, 2014) (“Because the ALJ failed to provide an
analysis of Plaintiff’s back impairments sufficient to enable this Court to conclude that the step
three finding is supported by substantial evidence, remand for further administrative proceedings
is warranted.”). Accordingly, remand is required.
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 9) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings consistent
with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter
judgment and close this case.
IT IS SO ORDERED.
Dated: April 24, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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