ROYBAL v. ASTRUE

Filing 20

ORDER signed by JUDGE THOMAS D. SCHROEDER on 6/9/2014 adopting the Magistrate Judge's Recommendation (doc. 16 ), that the Commissioner's decision finding no disability is REVERSED and the action is REMANDED to the Commissioner under 42 U.S .C. § 405(g). The Commissioner is directed to remand the matter to the ALJ for further consideration of Roybal's claim in light of the court's ruling. Therefore, Roybal's motion for judgment (Doc. 10 ) is GRANTED to the extent set out herein, and the Commissioner's motion (Doc. 12 ) is DENIED. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT H. ROYBAL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.

)
)
)
)
)
)
)
)
)
)
)

1:11CV389

ORDER
On May 20, 2014, the Recommendation of the United States
Magistrate Judge was filed (Doc. 16) and notice was served on the
parties pursuant to 28 U.S.C. § 636(b).

On May 30, 2014, Plaintiff

Robert H. Roybal filed an objection (Doc. 18), and on June 3, 2014,
the Commissioner filed a response.

(Doc. 19.)

Pursuant to Federal Rule of Civil Procedure 72(b), this court
reviews de novo those parts of the Recommendation that have been
objected to by the parties.

See Diamond v. Colonial Life & Accident

Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

The court reviews for

clear error those portions of a Recommendation to which no timely
objection was made.

1

Id.

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution as Defendant, pursuant
to Federal Rule of Civil Procedure 25(d).

Roybal objects to the Magistrate Judge’s conclusion that,
despite the failure of the Administrative Law Judge (“ALJ”) to
specifically analyze his failure to meet disability listing 1.04A,
20 C.F.R. Part 404, Subpt. P, App’x 1, § 1.04A, remand is not necessary
because any error was harmless.

(Doc. 16 at 23-24.)

Roybal

contends that the Fourth Circuit’s recent decision in Radford v.
Colvin, 734 F.3d 288 (4th Cir. 2013), requires remand so that the
ALJ may adequately explain her decision.

(Doc. 18 at 1-2.)

In Radford, the ALJ made a conclusory determination that the
claimant did not meet or medically equal any disability listing.
F.3d at 292.

734

The district court subsequently reversed, concluding

that “the ALJ’s determination that [the claimant] does not meet
Listing 1.04 [was] not supported by substantial evidence.”

Radford

v. Astrue, No. 5:11-CV-347-BO, 2012 WL 3594642, at *3 (E.D.N.C. Aug.
20, 2012).

Rather than remanding the case to the ALJ for a new

hearing, the district court concluded that “the evidence as a whole
compels a conclusion that [the claimant] meets Listing 1.04,” and
thus directed a finding in favor of the claimant.

Id.

The Fourth

Circuit agreed with the district court’s application of Listing 1.04A
but nevertheless reversed and remanded for a new administrative
hearing, concluding that the district court’s decision to direct a
finding in favor of the claimant was an abuse of discretion.
Radford, 734 F.3d at 294-96.

The Fourth Circuit reasoned that,
2

because the ALJ’s conclusion regarding the disability listing was
“devoid of reasoning,” it was “impossible for a reviewing court to
evaluate whether substantial evidence supports the ALJ’s findings.”
Id. at 295.

In that case, “[a] full explanation by the ALJ [was]

particularly important” because “[the claimant’s] medical record
include[d] a fair amount of evidence supportive of his claim.”

Id.

In this case, the ALJ quoted the entirety of Listing 1.04 but
failed to specifically apply Listing 1.04A.
Listing

1.04A

requires

“evidence

of

nerve

After noting that
root

compression

characterized by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive straight-leg
raising test,” the ALJ based her decision solely on a lack of evidence
that Roybal suffered from an “inability to ambulate effectively.”
(Tr. at 75-76.)

But the ability to ambulate effectively is not

responsive to the question whether a claimant meets Listing 1.04A;
rather, it is required by Listing 1.04C.
Subpt. P, App’x 1, § 1.04C.

See 20 C.F.R. Part 404,

The ALJ never made a finding that the

record did not contain evidence of nerve root compression or of the
symptoms listed in the appendix.

Thus, judicial review of the basis

for the ALJ’s denial of a finding under Listing 1.04A is not possible.
Radford counsels that when the ALJ fails to explain her reasoning

3

in denying a claim, the better course of action is to remand for
further consideration.

734 F.3d at 295.

The Magistrate Judge recognized the ALJ’s error but concluded
that remand was not required because “the record convincingly
establishes . . . that [Roybal’s] impairment does not meet the
criteria [Listing 1.04A].”

(Doc. 16 at 23.)

The Magistrate Judge

noted in a footnote his view that minimal objective evidence
supported a finding that the Listing applies (id. at 24 n.10), but
also stated that, even assuming Roybal had the requisite medical
findings at one time, he had failed to show that he had experienced
Listing 1.04’s symptoms for a continuous period of twelve months.
The Magistrate Judge found Roybal’s September 2009 MRI, which
demonstrated nerve root compression, insufficient on that issue
because it “fails to show that, at that point in time, [Roybal]
experienced the other listing criteria on a continuous basis for at
least twelve months” (id. at 24-25).

However, after Radford, which

the parties did not brief before the Magistrate Judge because the
Fourth Circuit’s decision was issued long after briefing closed, a
claimant need only show “that each of the symptoms are present, and
that [he] has suffered or can be expected to suffer from nerve root
compression continuously for at least 12 months.”

734 F.3d at 294.

As the Fourth Circuit emphasized, claimants “need not show that each

4

symptom was present at precisely the same time” nor “that the symptoms
were present in the claimant in particularly close proximity.”
Here,

because

Roybal

presented

evidence

of

nerve

Id.
root

compression as well as objective tests showing the conditions
required by Listing 1.04A, his claim cannot be rejected because these
findings were not simultaneous.
whether

Roybal

has

proven

It must be for the ALJ to determine

that

he

suffered

from

compression for a continuous period of twelve months.
ALJ made no such finding, remand is appropriate.

nerve

root

Because the

On remand, the ALJ

must determine whether Roybal’s nerve root compression lasted for
at least twelve continuous months and whether there are objective
medical findings as to the symptoms included in the Listing –
regardless of whether these findings are simultaneous with Roybal’s
nerve root compression.
The court has reviewed the remainder of the Recommendation –
to which Roybal did not object - and finds no clear error.
IT IS THEREFORE ORDERED that that the Commissioner’s decision
finding no disability is REVERSED and the action is REMANDED to the
Commissioner under 42 U.S.C. § 405(g).

The Commissioner is directed

to remand the matter to the ALJ for further consideration of Roybal’s
claim in light of the court’s ruling.

Therefore, Roybal’s motion

for judgment (Doc. 10) is GRANTED to the extent set out herein, and
the Commissioner’s motion (Doc. 12) is DENIED.
5

/s/
Thomas D. Schroeder
United States District Judge
June 9, 2014

6