NICHOLS v. COLVIN
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 01/05/2017, that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commiss ioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings [Doc . # 11 should be DENIED, andPlaintiff's Motion to Reverse the Decision of the Commissioner of the Social Security Administration or Remanding the Cause for a Rehearing [Doc. # 8 should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHARLES NICHOLS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:15CV797
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Charles Nichols (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying his claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed applications for Disability Insurance Benefits and
Supplemental Security Income Benefits in July 2010. (Tr. at 20, 262-79.)1 In both claims,
Plaintiff alleged a disability onset date of March 13, 2009. (Tr. at 96, 105, 264.) His
applications were denied initially (Tr. at 94-113) and upon reconsideration (Tr. at 114-43).
1
Transcript citations refer to the Sealed Administrative Record [Doc. #6].
Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative
Law Judge (“ALJ”). (Tr. at 193-94.) Plaintiff attended the subsequent video hearing on
February 17, 2012, along with his attorney and an impartial vocational expert. (Tr. at 147.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the
Act. (Tr. at 157.) However, on June 24, 2013, the Appeals Council vacated the hearing
decision and remanded Plaintiff’s case for further proceedings. (Tr. at 163-65.) 2 Accordingly,
Plaintiff appeared and testified at a second hearing on November 6, 2013, this time
accompanied by a non-attorney representative. (Tr. at 20.) At the second hearing, Plaintiff
amended his alleged onset date to July 1, 2010. (Id.)
Following the latter hearing, the ALJ again concluded that Plaintiff was not disabled
within the meaning of the Act. (Tr. at 31.) On July 31, 2015, the Appeals Council denied
Plaintiff’s request for review of that decision, thereby making the ALJ’s conclusion the
Commissioner’s final decision for purposes of judicial review. (Tr. at 1-5.)
The Appeals Council remanded the case for further consideration of a determination by the North Carolina
Department of Health and Human Services that Plaintiff was disabled as of July 1, 2010 for purposes of
Medicaid. Plaintiff amended his alleged onset date to July 1, 2010 in light of that determination. After the
subsequent hearing on remand, the ALJ gave that Medicaid determination “little weight” because “[t]here is no
information regarding the medical basis of the award.” However, further analysis of that issue may be required
in light of the decision of the Court of Appeals for the Fourth Circuit in Bird v. Comm’r of Soc. Sec. Admin.,
699 F.3d 337, 343-44 (4th Cir. 2012). See also Gaskins v. Colvin, No. 3:12–CV–81, 2013 WL 3148717, at *3
(N.D.W. Va. June 19, 2013) (holding that even if the evidence of the Medicaid decision is “conclusory,” “the
Social Security Administration’s own internal policy interpretation rulings affirmatively require[ ] the ALJ to
consider evidence of a disability decision by another governmental agency,” and these regulations “do not limit
the required review of other agency’s disability determinations to cases where the decision is substantive”
because “to the extent that Medicaid decisions employ the same standards as the Social Security Administration
uses in disability determinations, such decisions are probative in situations such as the instant one where an
agency has applied the same rules yet reached the opposite result from the Social Security Administration”
(internal quotations, brackets, and citations omitted)). The Medicaid approval form notes that Plaintiff’s Aid
Program Category was MAD, which is the North Carolina Department of Health and Human Services program
for Medicaid to the Disabled, a program of medical assistance for individuals under age 65 who meet Social
Security’s definition of disability. The approval covered the time period from July 1, 2010 through January 31,
2012, also at issue in this case. (Tr. at 385.)
2
2
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported
by substantial evidence and were reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
3
ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). In this context, “disability” means 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.’”
Id. (quoting 42 U.S.C.
§ 423(d)(1)(A)).3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . provides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
3
4
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at each of the first two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”
Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at
step three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or exceed a listed
impairment, the ALJ must assess the claimant’s residual function[al] capacity (‘RFC’).” Id. at
179.4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can
“perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, the ALJ must decide “whether the claimant is able
to perform other work considering both [the claimant’s RFC] and [the claimant’s] vocational
capabilities (age, education, and past work experience) to adjust to a new job.” Hall, 658 F.2d
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis
and quotation marks omitted)). The RFC includes both a “physical exertional or strength limitation” that
assesses the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be
determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any
related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
4
5
at 264-65. If, at this step, the Government cannot carry its “evidentiary burden of proving
that [the claimant] remains able to work other jobs available in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since his alleged onset date. Plaintiff therefore met his burden at step one of the
sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered
from the following severe impairments: “degenerative disc disease, sacroiliitis, and chronic
pain syndrome; insulin dependent diabetes mellitus; mood disorder; and status post
cerebrovascular accident.” (Tr. at 23.) The ALJ found at step three that none of these
impairments met or equaled a disability listing. (Tr. at 23-24.) Therefore, the ALJ assessed
Plaintiff’s RFC and determined that he could perform light work with additional restrictions
to a sit/stand option, no ladder climbing, no concentrated exposure to hazards such as moving
machinery or unprotected heights, and only occasional climbing of stairs, balancing, stooping,
crouching, kneeling, or crawling. In terms of mental restrictions, the ALJ found Plaintiff
“further limited to unskilled work and better working with things rather than people.” (Tr. at
24.) Based on this determination, the ALJ found under step four of the analysis that Plaintiff
could not return to any of his past relevant work. (Tr. at 29.) However, based on the
vocational expert’s testimony, the ALJ determined at step five, that, given Plaintiff’s age,
education, work experience, and RFC, he could perform other jobs available in the national
economy. (Tr. at 30.) Therefore, the ALJ concluded that Plaintiff was not disabled under the
Act. (Tr. at 31.)
6
Plaintiff now argues that the ALJ erred in two respects. First, he contends that, at step
three, the ALJ failed to properly evaluate his back impairment under 20 C.F.R., Part 404,
Subpt. P, Appx. 1, § 1.04A (hereinafter “Listing 1.04A”). Second, he challenges the ALJ’s
failure to perform a function-by-function analysis in assessing his RFC. Because the Court
finds that Plaintiff’s contention regarding Listing 1.04A requires further consideration upon
remand, the Court need not address the additional issues raised by Plaintiff at this time.
A.
Listing 1.04A
At step three of the sequential analysis, the ALJ did not explicitly consider the
applicability of Listing 1.04A to the facts of Plaintiff’s case. In fact, despite initially asserting
that Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 1.04, 9.00, 11.00, 20 CFR Part
404, Subpart P, Appendix 1,” the ALJ limited his actual analysis of relevant listings to Plaintiff’s
mental impairments. (Tr. at 23-24.) Plaintiff now claims that the ALJ’s failure to specifically
discuss Listing 1.04A constitutes error.
Notably, an ALJ is not required to explicitly identify and discuss every possible listing;
however, he is compelled to provide a coherent basis for his step three determination,
particularly where the “medical record includes a fair amount of evidence” that a claimant’s
impairment meets a disability listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
Where such evidence exists but is rejected without discussion, “insufficient legal analysis
makes it impossible for a reviewing court to evaluate whether substantial evidence supports
the ALJ’s findings.” Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In
reviewing the ALJ’s analysis, it is possible that even “[a] cursory explanation” at step three may
7
prove “satisfactory so long as the decision as a whole demonstrates that the ALJ considered
the relevant evidence of record and there is substantial evidence to support the conclusion.”
Meador v. Colvin, No. 7:13–CV–214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015)
(citing Smith v. Astrue, 457 F. App’x 326, 328 (4th Cir.2011)). However, the ALJ’s decision
must include “a sufficient discussion of the evidence and explanation of its reasoning such
that meaningful judicial review is possible.” Id. If the decision does not include sufficient
explanation and analysis to allow meaningful judicial review of the ALJ’s listing determination,
remand is appropriate. Radford, 734 F.3d at 295.
In the present case, Defendant argues that Radford is inapplicable because Plaintiff
“did not produce evidence to show that Listing 1.04A was satisfied.” (Def.’s Br. [Doc. #12]
at 5.) In particular, Defendant relies on the opinion of two state agency physicians, who, in
November 3, 2010 and June 1, 2011, respectively, specifically considered the applicability of
Listing 1.04, but instead concluded that Plaintiff could perform a limited range of light work.
(Def.’s Br. at 6) (citing Tr. at 100-02, 124-27). Defendant also cites the medical records
provided by Dr. Stephen M. David, the surgeon who performed Plaintiff’s L3-4
decompression in February 2010. (Def.’s Br. at 6-7.) On July 29, 2010, Dr. David opined that
Plaintiff had reached maximum medical improvement and released him to “full-time work
with limited bending, stooping, twisting, lifting, pushing, [and] pulling [of] no more than 20
pounds,” as well as no overhead work. (Tr. at 552.) Defendant contends that, because the
RFC assessed in this case “fully accounted for Plaintiff’s work-related limitations” as opined
by Dr. David, “substantial evidence supports the ALJ’s finding that Plaintiff’s back complaints
did not meet a listing.” (Def.’s Br. at 7.) However, Defendant does not address the fact that
8
a few months later, Dr. David provided a subsequent determination that Plaintiff should
remain out of work indefinitely. (Tr. at 1304.) Specifically, Plaintiff returned to see Dr. David
with worsening back pain in early May 2011, was hospitalized for back pain a few weeks later
in late May 2011 and was treated by Dr. David while hospitalized, and returned to see Dr.
David again in June 2011 and August 2011. (Tr. at 1304-20.)5 After the August 2011
examination, and review of the more recent imaging, Dr. David concluded that Plaintiff was
“continuing to have symptomatic disc herniation” and should remain out of work “until
further notice.”6 (Tr. at 1304-05.)
Moreover, the issue here, as in Radford, is not whether Plaintiff met Listing 1.04A.
Rather, the relevant questions are (1) whether there was sufficient evidence in the record to
trigger the potential applicability of Listing 1.04A, and (2) if so, whether the ALJ’s explanation
and analysis, as a whole, is sufficient to allow judicial review of the step three determination
as to that Listing. In this case, the ALJ’s decision clearly omits relevant evidence pertaining to
Plaintiff’s back impairment. In particular, the decision reflects little, if any, of the record
evidence of Plaintiff’s back condition post-dating the June 1, 2011 state agency opinion on
which Defendant now relies. After a thorough review of the record, the Court finds that later
Plaintiff filed an updated Disability Report in July 2011, reporting that his back pain had gradually worsened,
that his vertebrae were “shifting” according to his doctor, and that he was now experiencing numbness in his
right leg as a result of his back pain. (Tr. at 378-83.) However, the review by the state agency physicians only
considered evidence from Dr. David through July 2010.
5
In the ALJ’s decision, with respect to Dr. David, the ALJ specifically stated that “[a]lthough the claimant
testified that his doctor has not released him to return to work, the claimant has not returned to this doctor
since he released the claimant to return to work with limitations in July 2010.” (Tr. at 27.) However, this
statement is incorrect, as the record is clear that Plaintiff actually did return to Dr. David a few months later in
May 2011, and Dr. David subsequently concluded in August 2011 that Plaintiff should remain out of work until
further notice. (Tr. at 1304-20.) Notably, the ALJ separately noted and rejected the later determination by Dr.
David (Tr. at 29), but the ALJ did not reconcile this analysis with the earlier discussion.
6
9
records include “a fair amount of evidence” that Plaintiff satisfies the requirements of Listing
1.04A. Because the ALJ offered no explanation for the omission of this evidence or its impact
on the listing analysis, remand is required under Radford.
A plaintiff meets Listing 1.04A only if he meets three requirements. He must first show
that he suffers from a spinal disorder, such as “herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [or]
vertebral fracture.” 20 C.F.R. Part 404, Subpt. P, Appendix I, § 1.04. In the present case,
Plaintiff’s documented degenerative disc disease clearly met this requirement.
Second, he must demonstrate that the above spinal condition results in “compromise
of a nerve root (including the cauda equina) or the spinal cord.” Id. In this case, the results
from a lumbar spine MRI performed on October 11, 2012 showed that:
At L3-L4 there’s been a laminotomy to the right, with a broad-based herniation
asymmetric to the right creating moderate central canal narrowing with
compression on the right L4 nerve root as it heads toward the lateral recess.
There is high-grade narrowing of the right neural foramen with compression on
the right L3 nerve root. Hypertrophy of the posterior elements contributes to
the central canal narrowing and mass effect on the lateral thecal sac. . . .
Impression: Transitional L5 vertebral body with postsurgical changes to the
right at L3-L4. There is a right posterior lateral and foraminal herniation at L3L4 effacing the right anterolateral thecal sac with mass effect and compression
on both the right L3 and L4 nerve roots.
(Tr. at 1283-84.)7 Plaintiff’s later medical records in 2013 continue to note “multilevel
degenerative disc disease” with “L3-L4 status post laminotomy with right disc herniation
causing foraminal narrowing and compression of the right L3 nerve root with indentation of
the anterolateral thecal sac” and with “L4-L5 with bilateral foraminal narrowing and
7
Notably, the ALJ’s decision does not address the October 2012 MRI at all.
10
compression of the right L4 nerve root,” based on the October 2012 MRI and ongoing
examinations and pain treatments. (Tr. at 1272, 1277-78.) In addition, an earlier May 2011
MRI also demonstrated “recurrent disc herniation with neurological impingement on the right
side at L4-L5 where he had prior surgery.” (Tr. at 1304.)
Third, he must show that he meets the additional requirements of paragraph A of the
Listing:
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);
Id. In his brief, Plaintiff identifies at least some evidence consistent with each of the criteria
set out in section A of the listing. (See Pl.’s Br. [Doc. #9] at 6-8.) This includes complaints
of “numbness, tingling, [and] pins and needles radiating down to his right leg and into his right
big toe” indicating a neuro-anatomic distribution of pain (Tr. at 1285), with a diagnosis of
lumbar radiculopathy (Tr. at 1281, 1285, 1287), and significantly decreased lumbar motion,
flexion, and extension (Tr. at 1285, 1287, 1304). He was hospitalized in May 2011 for low
back pain with weakness in his right leg causing him to fall. (Tr. at 1311-13.) In addition, the
objective medical record chronicles decreased sensation on multiple occasions, including
“[d]ecreased sensation in the right L4-L5 nerve root distribution” on June 14, 2011 (Tr. at
1306), and “[d]ecreased sensation in the right L5 nerve root distribution” on August 12, 2011
11
(Tr. at 1304), as well as positive straight-leg raising tests on August 12, 2011 (Tr. at 1304),
September 17, 2012 (Tr. at 1285-86), and June 12, 2013 (Tr. at 1277).8
The above evidence—none of which is addressed in the administrative decision—
clearly belies Defendant’s contention that “there is no unresolved conflict of evidence that
forecloses meaningful review.” (Def.’s Br. at 10.) Moreover, to the extent that Defendant
attempts to cite other evidence in the record to support the conclusion that Listing 1.04A does
not apply, this Court will not undertake an analysis that is not reflected in the ALJ’s decision.
See generally SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (courts must review
administrative decisions on the grounds upon which the record discloses the action was
based); see also Wyatt v. Bowen, No. 89-2943, 887 F.2d 1082 (table), 1989 WL 117940, at *4
(4th Cir. Sept. 11, 1989) ( “[T]he duty of explanation will be satisfied when the ALJ presents
‘[the court] with findings and determinations sufficiently articulated to permit meaningful
judicial review,’ which must include specific reference to the evidence producing [the ALJ’s]
conclusion.” (quoting DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983), and citing
Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985))). Radford instructs that where, as
The fact that Plaintiff arguably exhibited the various requirements of Listing 1.04A at different times
throughout the relevant time period has no impact on the listing analysis. In Radford, the Fourth Circuit
specifically held that the Listing
does not contain a requirement governing when symptoms must present in the claimant.
Listing 1.04A provides that certain “disorders of the spine” are among the impairments
conclusively establishing disability. It requires only “[e]vidence of nerve root compression
characterized by”—i.e., distinguished by—the four symptoms. 20 C.F.R. Part 404, Subpart P,
App. 1, § 1.04A; Merriam Webster's Collegiate Dictionary 192 (10th ed.1997) (“characteristic”). The
use of “and” to connect the four symptoms means that all of the symptoms must be present
in the claimant, but the provision does not specify when they must be present. And it certainly
does not say that they must be present at the same time, see Merriam Webster's Collegiate Dictionary
1094 (10th ed.1997) (defining “simultaneous” as “existing or occurring at the same time”), or
that they must be present within a certain proximity of one another.
734 F.3d at 293.
8
12
here, there is conflicting evidence in the record as to whether the claimant satisfies a Listing,
but insufficient analysis or explanation of the issue by the ALJ, remand is required. 734 F.3d
at 296.9 Here, as in Radford, “a fair amount of evidence” in the record supports Plaintiff’s
claim, and the ALJ’s failure to provide any explanation or analysis as to his step three
determination precludes the Court from undertaking meaningful review of the ALJ’s step three
finding. Without any analysis for this Court to review, remand is required.
In reaching this conclusion, the Court is guided by a recent decision of the Fourth
Circuit involving an ALJ’s failure to address a specific Listing. Brown v. Colvin, 639 F. App’x
921 (4th Cir. 2016). In that case, the district court noted the ALJ’s failure to specifically analyze
Listing 4.04, but nevertheless considered the evidence in the record and the ALJ’s decision
and concluded that the ALJ’s “detailed review of Plaintiff’s medical history constitutes
substantial evidence supporting Plaintiff’s failure to satisfy” the elements of the Listing.
Brown v. Colvin, No. 1:13–CV–96–GCM, 2014 WL 4666978 (W.D.N.C. Sept. 18, 2014.)
However, the Fourth Circuit reversed the district court and held that:
In explaining his decision at Step Three . . . the ALJ stated only that:
The medical evidence of record does not establish the presence
of objective findings that would meet or equal any impairment
listed in the Listing of Impairments as found in Appendix 1,
Subpart P of Regulations No. 4. This is consistent [with] the State
Agency opinion considering Listing[ ] 4.04 (Ischemic Heart
Disease).
Notably, Radford involved some examinations in which the claimant “exhibited no weakness, sensory loss,
or limitation of motion” as required by Listing 1.04A, and Radford’s physician “opined more than once that
[his] pain was inconsistent with his physical findings,” and the Fourth Circuit concluded that “[g]iven the depth
and ambivalence of the medical record, the ALJ’s failure to adequately explain his reasoning precludes this
Court . . . from undertaking a ‘meaningful review’ of the finding that Radford did not satisfy” the listing at issue.
Id.
9
13
We found a substantially similar explanation deficient in Radford because it was
“devoid of reasoning” and rendered impossible the task of determining whether
the ALJ’s finding was supported by substantial evidence. 734 F.3d at 295.
The Commissioner contends that, despite the similarity in the cursory
explanations provided by the ALJ here and the ALJ in Radford, we should not
remand for further proceedings because, unlike the medical record in Radford,
the medical record here clearly establishes that Brown’s heart condition does
not meet or equal the criteria of Listing 4.04C. We conclude that Brown’s
medical record is not so one-sided that one could clearly decide, without
analysis, that Listing 4.04C is not implicated. Further, we do not accept
Brown’s and the Commissioner’s invitations to review the medical record
de novo to discover facts to support or refute the ALJ’s finding at Step
Three, and it was error for the district court to do so. Instead, we remand
to avoid engaging in fact-finding “in the first instance” and to allow the ALJ to
further develop the record so that we can conduct a meaningful judicial review
in the event the case returns to us. Radford, 734 F.3d at 296.
Brown, 639 F. App’x at 923 (emphasis added). While Brown is unpublished, it is nevertheless
persuasive, and provides caution to this Court with respect to any attempt to review the
medical record to find facts in the first instance. It is the role of the ALJ, with assistance from
medical experts as needed and appropriate, to review the medical record and discover those
facts. Here, there is no way for this Court to determine how the Listing analysis was made or
the basis for the conclusion that the Listing was not met. In addition, in light of the evidence
raised by Plaintiff that was not addressed by the ALJ, the Court concludes as in Brown that
the medical evidence related to Plaintiff’s back condition “is not so one-sided that one could
clearly decide, without analysis” that the Listing is not met. The ALJ’s failure to address any
of the physical listings in this case, including particularly Listing 1.04, is thus more than a
“technical error,” and is instead a situation where “the ALJ’s failure to adequately explain his
reasoning precludes this Court . . . from undertaking a ‘meaningful review.’” Radford, 734
14
F.3d at 296. Therefore, as in Radford and Brown, the appropriate course is to remand the
case to the ALJ for further proceedings.
In view of this recommendation, the Court need not address additional issues raised
by Plaintiff at this time. See Brown, 639 F. App’x at 923 (“Brown also argues on appeal that
the district court erred in concluding that the ALJ properly accorded less than controlling
weight to the opinion of one of Brown's treating cardiologists. However, in view of our
decision to vacate the decision and remand on Step Three of the sequential analysis, we decline
to address this issue.”).10
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for proceedings consistent with this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #11] should be DENIED, and
Plaintiff’s Motion to Reverse the Decision of the Commissioner of the Social Security
The Court notes that Plaintiff also contends that the ALJ failed to perform a function by function analysis in
formulating Plaintiff’s RFC. There may be issues in this regard for further consideration on remand. For
example, the ALJ’s decision does not clearly address Plaintiff’s alleged limitations in concentration, persistence
and pace. In this regard, the ALJ first found that “[w]ith regard to concentration, persistence or pace, the
claimant has moderate difficulties.” (Tr. at 23.) However, in the next paragraph, the ALJ states that “[t]he third
functional area is concentration, persistence or pace. In this area the claimant has no limitation.” (Tr. at 24.)
Thus, the decision itself is internally inconsistent. In addition, the ALJ notes that Plaintiff “had a mild stroke
in September 2012 and has difficulty concentrating” (Tr. at 25, 27, 68), and the ALJ found that Plaintiff’s “status
post cerebrovascular accident” was a severe impairment (Tr. at 23, 27). However, the ALJ did not address that
impairment further and instead relied on earlier evidence from 2010 and 2011 to conclude that Plaintiff had no
limitations in concentration, persistence or pace. (Tr. at 24, 27, 325, 767, 626, 635, 645, 754.) Given the ALJ’s
internally inconsistent findings and failure to address Plaintiff’s alleged limitations in concentration, persistence
and pace after September 2012, it appears that there may be additional issues with respect to the ALJ’s
determination in this case. However, in light of the remand required by Radford, and given that these issues
may be further addressed and considered on remand, the Court need not further address Plaintiff’s additional
contentions at this time.
10
15
Administration or Remanding the Cause for a Rehearing [Doc. #8] should be GRANTED.
However, to the extent that Plaintiff’s motion seeks an immediate award of benefits, it should
be DENIED.
This, the 5th day of January, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?