Gardner v. Commissioner of Social Security

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION adopting 14 Report and Recommendation, except as to the Magistrate Judge's ruling that Listing 1.04A requires the claimant demonstrate an inability to effectively ambulate, and affirming the decision of the Commissioner. Signed by Honorable R. Bryan Harwell on 08/24/2016. (bshr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Yolanda Yevette Gardner,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)
____________________________________)

Civil Action No.: 0:15-cv-01123-RBH

ORDER

This matter is before the Court following the issuance of a Report and Recommendation
(“R&R”) by United States Magistrate Judge Paige J. Gossett.1 Plaintiff, Yolanda Yevette Gardner,
brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the
Commission of Social Security (“the Commissioner”) denying Plaintiff’s claim for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The Magistrate Judge
recommended affirming the Administrative Law Judge’s decision denying Plaintiff’s claim for
benefits.
FACTUAL FINDINGS AND PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI on December 15, 2011, alleging disability as of October
15, 2010. The applications were denied initially and on reconsideration. Plaintiff then requested a
hearing before an Administrative Law Judge (“ALJ”). A hearing was held before the ALJ on
August 21, 2013. Plaintiff, represented by a non-attorney representative, appeared and testified. A

1

This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2).

vocational expert also testified. The ALJ issued a decision on September 19, 2013, finding that
Plaintiff was not disabled. The ALJ’s findings are as follows:
1.

The claimant meets the insured status requirements
of the Social Security Act through June 30, 2014.

2.

The claimant has not engaged in substantial gainful
activity since October 15, 2010, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments:
degenerative disc disease; obesity; and bilateral
knee osteoarthritis and internal derangement
status/post right knee arthroscopy (20 C.F.R.
404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926).

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as
defined in 20 C.F.R. 404.1567(a) and 416.967(a)
except she cannot push or pull with the lower
extremities. She can occasionally climb
ramps/stairs and stoop but do no kneeling, climbing
of ladders/ropes/scaffolds, balancing for safety on
dangerous surfaces, crouching or crawling. She can
frequently reach bilaterally and should avoid
exposure to hazards such as unprotected heights and
dangerous moving machinery. Additionally, she
requires a sit/stand option at the workstation every
30 minutes to one hour.

6.

The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).

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7.

The claimant was born on February 13, 1971, and
was 39 years old, which is defined as a younger
individual age 18-44, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).

8.

The claimant has a limited education and is able to
communicate in English. (20 CFR 404.1564 and
416.964).

9.

Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports
a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and
416.969(a)).

11.

The claimant has not been under a disability, as
defined in the Social Security Act, from October 15,
2010, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

[ALJ Decision, ECF #10-2, at 13-22, Tr. 27-37].
The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review on January 9, 2015. Plaintiff filed this action
on March 9, 2015, seeking judicial review of the ALJ’s decision. [Compl., ECF #1]. Both Plaintiff
and Defendant filed briefs, [ECF ## 11 & 12]. The Magistrate Judge issued her Report and
Recommendation (“R&R”) on April 19, 2016, recommending that the ALJ’s decision be affirmed.
[R&R, ECF #14]. Plaintiff filed timely objections to the R&R on May 9, 2016. [Plaintiff’s

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Objections, ECF #25]. Defendant filed a reply to Plaintiff’s objections on May 20, 2016. [ECF
#16].
STANDARD OF REVIEW
The federal judiciary has a limited role in the administrative scheme established by the Act,
which provides the Commissioner’s findings “shall be conclusive” if they are “supported by
substantial evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable
times as more than a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541,
543 (4th Cir. 1964). Substantial evidence “means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971).
This statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157,
1157-58 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must
uphold the Commissioner’s factual findings “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); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even
if the Court disagrees with the Commissioner’s decision, the Court must uphold the decision if
substantial evidence supports it). This standard of review does not require, however, mechanical
acceptance of the Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969).
The Court “must not abdicate [its] responsibility to give careful scrutiny to the whole record to
assure that there is a sound foundation for the [Commissioner]’s findings, and that [her] conclusion
is rational.” Vitek, 438 F.2d at 1157-58.
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The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct
a de novo review of those portions of the R & R to which specific objections are made, and it may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review
when a party makes only “general and conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the
Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge’s
recommendation. Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).
APPLICABLE LAW
Under the Act, Plaintiff’s eligibility for the benefits he is seeking hinges on whether he is
under a “disability.” 42 U.S.C. § 423(a). The Act defines “disability” as 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. § 423(d)(1)(A). The claimant bears the
ultimate burden to prove disability. Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985). The
claimant may establish a prima facie case of disability based solely upon medical evidence by
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demonstrating that his impairments meet or equal the medical criteria set forth in Appendix 1 of
Subpart P of Part 404 of Title 20 of the Code of Federal Regulations. 20 C.F.R. §§ 404.1520(d) &
416.920(d).
If such a showing is not possible, a claimant may also establish a prima facie case of
disability by proving he could not perform his customary occupation as the result of physical or
mental impairments. See Taylor v. Weinberger, 512 F.2d 664, 666-68 (4th Cir. 1975). This
approach is premised on the claimant’s inability to resolve the question solely on medical
considerations, and it is therefore necessary to consider the medical evidence in conjunction with
certain vocational factors. 20 C.F.R. §§ 404.1560(a) & § 416.960(a). These factors include the
claimant’s (1) residual functional capacity, (2) age, (3) education, (4) work experience, and (5) the
existence of work “in significant numbers in the national economy” that the individual can perform.
Id. §§ 404.1560(a), 404.1563, 404.1564, 404.1565, 404.1566, 416.960(a), 416.963, 416.964,
416.965, & 416.966. If an assessment of the claimant’s residual functional capacity leads to the
conclusion that he can no longer perform his previous work, it then becomes necessary to determine
whether the claimant can perform some other type of work, taking into account remaining
vocational factors. Id. §§ 404.1560(c)(1) & 416.960(c)(1). Appendix 2 of Subpart P governs the
interrelation between these vocational factors. Thus, according to the sequence of evaluation
suggested by 20 C.F.R. §§ 404.1520 & 416.920, it must be determined (1) whether the claimant
currently has gainful employment, (2) whether he suffers from a severe physical or mental
impairment, (3) whether that impairment meets or equals the criteria of Appendix 1, (4) whether, if
those criteria are met, the impairment prevents him from returning to previous work, and (5)
whether the impairment prevents him from performing some other available work.
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ANALYSIS
In this appeal, Plaintiff argues: 1) her application for benefits should be remanded for
administrative consideration of new evidence from her treating orthopedic surgeon which was
submitted to the Appeals Council; 2) the ALJ did not explain his findings regarding the Plaintiff’s
residual functional capacity, as required by Social Security Ruling 96-8p; 3) the ALJ erred in failing
to properly evaluate whether the Plaintiff’s degenerative disc disease meets and/or equals the criteria
of Listing 1.04; and 4) the ALJ failed to properly evaluate Plaintiff’s credibility. In her R&R, the
Magistrate Judge addressed each of Plaintiff’s issues and found that Plaintiff had failed to show that
the Commissioner’s decision was unsupported by substantial evidence or reached through
application of an incorrect legal standard.
I.

New Evidence Submitted to the Appeals Council
Plaintiff argues that her case should be remanded for administrative consideration of new

evidence submitted to the Appeals Council from her treating orthopedic surgeon. The evidence
consisted of a letter from Dr. Leland Stoddard dated November 21, 2014, which states:
This letter is written at the patient’s request. This letter will confirm
that I have seen and treated Yolanda Gardner for problems with her
back and knees. This patient has fairly advanced arthritis in the knees,
much worse than for a normal person of her age. She also has
degenerative disc disease with chronic back pain and radicular
symptoms in the lower back. I feel that these two conditions render her
disabled from any remunerative employment. These are permanent
conditions not likely to substantially change. She remains under my
care for these conditions.
Tr. 21. The Appeals Council noted that the ALJ decided Plaintiff’s case through September 19,
2013 and the November 21, 2014 letter concerned a later time. Tr. 2. Therefore, the Appeals

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Council concluded, Dr. Stoddard’s letter “does not affect the decision about whether [Plaintiff] was
disabled beginning on or before September 19, 2013.” Id.
Plaintiff argues that although Dr. Stoddard’s letter is dated after the ALJ’s decision, Dr.
Stoddard treated Plaintiff from October 2010 through the date of the letter. Even though the letter
fails to indicate when Plaintiff became disabled, Plaintiff contends the letter relates to the period of
time on or before the ALJ’s decision.
In her R&R, the Magistrate Judge found that Plaintiff failed to establish that the Appeals
Council’s conclusion - that the letter related to a period of time after the ALJ’s decision - was
unsupported by substantial evidence or reached through application of an incorrect legal standard.
The Magistrate Judge further found that even if the Plaintiff could demonstrate error, she could not
demonstrate any harm as a result of such an error. Dr. Stoddard’s letter fails to include an opinion on
any functional limitations and merely opines that Plaintiff is disabled, which is an opinion reserved
to the Commissioner. Therefore, the Magistrate Judge found that Dr. Stoddard’s letter, even if
considered by the Appeals Council, does not cause the ALJ’s decision to be unsupported by
substantial evidence.
Plaintiff contends there is a substantial link between Dr. Stoddard’s November 21, 2014
letter and his treatment records from the relevant time period. Because of the linkage, Plaintiff
argues the Appeals Council erred in failing to give Dr. Stoddard’s letter retrospective consideration.
Plaintiff’s objection questions whether the Magistrate Judge adequately considered the linkage
between Dr. Stoddard’s treatment notes and his November 21, 2014 letter. Plaintiff also objects to
the Magistrate Judge’s conclusion that Dr. Stoddard’s letter merely opines that Plaintiff is disabled
and notes that Dr. Stoddard’s letter also indicates that Plaintiff suffers from fairly advanced arthritis
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in the knees and degenerative disc disease with chronic back pain and radicular symptoms in the
lower back.
“[A] treating physician may properly offer a retrospective opinion on the past extent of an
impairment.” Wilkins v. Secretary, Dept. of Health and Human Servs., 953 F.2d 93, 96 (4th Cir.
1991). The Appeals Council must consider evidence submitted with the request for review in
deciding whether to grant review “if the additional evidence is (a) new, (b) material, and (c) relates
to the period on or before the date of the ALJ's decision.” Id. at 95-96. Evidence is new if it is not
duplicative or cumulative. Id. at 96. Evidence is material if there is a reasonable possibility that the
new evidence would have changed the outcome. Id. (citing Borders v. Heckler, 777 F.2d 954, 956
(4th Cir.1985)).
Dr. Stoddard’s letter is dated over one year after the ALJ’s decision and fails to set forth any
time period or onset date relative to his opinion that Plaintiff is disabled due to her arthritis and
degenerative disc disease. It is not clear from the letter when Plaintiff could have become disabled
as a result of the arthritis and degenerative disc disease. Plaintiff’s conditions are progressive in
nature and may not have been disabling on or before the ALJ’s date of decision. From the letter,
there is simply no way to know and further administrative consideration of the letter will not make it
any more clear. The letter does not address any functional limitations and offers little more than a
conclusion that is specifically reserved to the Commissioner. The diagnosis of degenerative disc
disease and arthritis was not new information as it was reflected in Dr. Stoddard’s treatment notes,
which were before the ALJ. Plaintiff has failed to demonstrate that the Appeals Council’s
determination - that Dr. Stoddard’s letter did not relate to the relevant time period and, as a result,
did not affect the decision about whether [Plaintiff] was disabled beginning on or before September
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19, 2013 - was unsupported by substantial evidence or reached through application of an incorrect
legal standard. To the extent the Appeals Council erred, such error was harmless. Plaintiff’s
objection with respect to Dr. Stoddard’s letter is overruled.
II.

Residual Functional Capacity and Credibility
Plaintiff argues the ALJ did not explain his findings regarding Plaintiff’s residual functional

capacity (“RFC”) as required by Social Security Ruling 96-8p. Specifically, Plaintiff takes issue
with the ALJ’s findings relative to the sit/stand option, Plaintiff’s need for an assistive device,
Plaintiff’s complaints of pain, and her credibility with respect to the severity of her pain.
The ALJ found that Plaintiff had the RFC to perform sedentary work except she could not
push or pull with the lower extremities. The ALJ further limited the Plaintiff by finding that she
could occasionally climb ramps/stairs and stoop but do no kneeling, climbing of
ladders/ropes/scaffolds, balancing for safety on dangerous surfaces, crouching or crawling. The
ALJ found that Plaintiff could frequently reach bilaterally and should avoid exposure to hazards
such as unprotected heights and dangerous moving machinery. Additionally, the ALJ found that
Plaintiff required a sit/stand option at the workstation every 30 minutes to one hour.
A.

Sit/stand option

Plaintiff argues that the ALJ’s RFC findings are too ambiguous in terms of the sit/stand
option. Relying on Social Security Ruling 96-9p, Plaintiff contends a remand is required for
clarification of the frequency with which Plaintiff would need to alternate between sitting and
standing, and for an explanation as to the length of time Plaintiff can sit, and subsequently stand
during those intervals.
Social Security Ruling 96-9p provides:
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An individual may need to alternate the required sitting of sedentary
work by standing (and, possibly, walking) periodically. Where this
need cannot be accommodated by scheduled breaks and a lunch period,
the occupational base for a full range of unskilled sedentary work will
be eroded. The extent of the erosion will depend on the facts in the
case record, such as the frequency of the need to alternate sitting and
standing and the length of time needed to stand. The RFC assessment
must be specific as to the frequency of the individual's need to
alternate sitting and standing. It may be especially useful in these
situations to consult a vocational resource in order to determine
whether the individual is able to make an adjustment to other work.
The Magistrate Judge recommended affirming the ALJ finding that SSR 96-9p does not
mandate that the length of time the claimant needs to stand be included in the RFC assessment. The
Magistrate Judge stated that although additional explanation may have been preferable, Plaintiff has
failed to demonstrate any error by the ALJ.
Although Plaintiff filed objections to the R&R, she did not indicate any objection to the
Magistrate Judge’s recommendation regarding the sit/stand option. The Court has conducted a de
novo review and finds that the ALJ’s RFC assessment was sufficiently specific as to the sit/stand
option to satisfy the requirements of Social Security Ruling 96-9p.
B.

Assistive Device

Plaintiff argues the ALJ erred in failing to account for the Plaintiff’s use of an assistive
device (cane) in the RFC assessment. The Magistrate Judge stated that “[a]t most, medical evidence
demonstrates that Plaintiff uses a cane without further specifics on its use.” The Magistrate Judge
further noted that the specifics of Plaintiff’s use of a cane was clarified by her testimony that she
used the cane “[w]hen I’m walking.” The Magistrate Judge found that to the extent the ALJ erred in
failing to account for Plaintiff’s use of a cane in the RFC assessment, the error was rendered
harmless when the ALJ asked the vocational expert if a hypothetical individual with the limitations
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included in Plaintiff’s RFC assessment could perform the jobs identified in the decision if he or she
needed to use a cane when walking and the vocational expert responded in the affirmative.
Plaintiff objected contending the ALJ had not fully discussed the record and references to
cane use in her decision. Plaintiff fails to address, however, the Magistrate Judge’s assertion that
any error in failing to account for the use of the cane in the RFC assessment was rendered harmless
by the ALJ’s inclusion of the use of a cane in the hypothetical to the vocational expert and the
vocational expert’s response that at least “three occupations she identified could be done with the
use of a cane when walking.”
The specifics of Plaintiff’s cane use was clarified by Plaintiff’s own testimony that she used
the cane when walking. The ALJ properly relied on Plaintiff’s testimony and included the
limitation in her hypothetical to the vocational expert. Because the vocational expert identified
occupations that could be performed with Plaintiff’s RFC and added limitation of using a cane when
walking, the ALJ’s finding of “not disabled” is supported by substantial evidence and any error in
failing to include the use of a cane in the RFC was harmless.
C.

Plaintiff’s Alleged Pain and the ALJ’s Credibility Determination

Plaintiff argues the ALJ erred in failing to properly consider the impact of her pain on her
RFC. Related to this issue, Plaintiff also challenges the ALJ’s finding that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of her symptoms were not entirely credible.
The Magistrate Judge recommended affirming the ALJ finding that Plaintiff had failed to
demonstrate that the ALJ’s evaluation of Plaintiff’s subjective complaints was unsupported by
substantial evidence or controlled by an error of law. Despite Plaintiff’s arguments that the ALJ
“cherry-picked” evidence, the Magistrate Judge found that the ALJ properly applied the relevant
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factors in assessing Plaintiff’s credibility and the ALJ’s conclusions were within the bounds of the
substantial evidence standard. The Magistrate Judge further concluded that the ALJ’s discussion of
Plaintiff’s testimony and the evidence satisfied the specificity requirements.
In response, Plaintiff argues the ALJ failed to properly consider the intensity, persistence and
limiting effects of Plaintiff’s alleged symptoms. Plaintiff argues the ALJ failed to resolve
conflicting evidence in the record concerning Plaintiff’s symptoms. Plaintiff also argues the ALJ’s
credibility statement was ambiguous in that the ALJ found the medical impairments only could
cause “some” of the alleged symptoms. Plaintiff contends the ALJ should have specified which
symptoms were caused by Plaintiff’s medical impairments and which symptoms were not.
This Court finds the ALJ properly applied the relevant factors under 20 C.F.R. §
404.1529(c)(3) in assessing Plaintiff’s credibility. The ALJ appropriately discounted Plaintiff’s
subjective complaints of pain based on the following: 1) the conservative treatment for her
degenerative disc disease; 2) MRI results reflecting mild degenerative disc changes and a mild disc
bulge; 3) x-ray of lumbar spine indicating only mild levoscoliosis of the lower lumbar spine; 4)
positive treatment notes; 5) denial of any difficulties in daily living in June 2012; 6) failure to obtain
a recommended back brace; 7) stable motor and sensory function in her upper and lower extremities
with 5/5 strength in the hip flexors, hip extensors, hip abductors, hip adductors, quadriceps, and
hamstrings in April 2013; 8) indication of mild degenerative disc disease at L4-S1; 9) lack of any
regular and continuing treatment for cervical degenerative disc disease and only conservative
treatment for lumbar degenerative disc disease; 10) ability to sit for greater than 30 minutes without
changing positions; 11) ability to move about generally well and sustain consistent function with
respect to her obesity; 12) ability to drive, do some cooking, and household chores with breaks; 13)
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Dr. Stoddard’s characterization of Plaintiff’s knee arthritis as “quite mild;” 14) examinations in
October 2012 and April 2013 showing no instability; and 15) no surgical intervention with regard to
the knees since 2011. Accordingly, this Court finds substantial evidence supports the ALJ’s
credibility determination.
The record reveals the ALJ weighed Plaintiff’s subjective complaints against the medical
records and resolved the conflicting evidence - in some cases in Plaintiff’s favor. Based in part on
Plaintiff’s subjective complaints of pain, the ALJ rejected the State Agency medical consultants’
finding that Plaintiff could perform light work. Instead, the ALJ restricted Plaintiff to sedentary
work with no pushing and pulling with the bilateral lower extremities. The ALJ also restricted
Plaintiff to frequent bilateral reaching rather than just left reaching in light of her back pain and
included a sit/stand option to avoid prolonged positions that could aggravate Plaintiff’s pain.
Although the ALJ did not find that Plaintiff’s symptoms and pain were disabling, the ALJ did
account for Plaintiff’s subjective complaints of pain in the RFC assessment by including restrictions
beyond those restrictions recommended by the State Agency medical consultants.
As to Plaintiff’s argument that the ALJ’s credibility statement was ambiguous, the Court
finds this argument to be without merit. Any ambiguity from the ALJ’s statement that Plaintiff’s
medically determinable impairments could reasonably be expected to cause “some” of the alleged
symptoms was clarified in the nine subsequent paragraphs, which discuss in detail Plaintiff’s
symptoms and residual functional capacity.
In summary, Plaintiff has failed to establish that the ALJ’s credibility determination and
assessment of Plaintiff’s subjective complaints of pain was unsupported by substantial evidence or

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controlled by an error of law. Likewise, Plaintiff has failed to demonstrate that the ALJ’s RFC
assessment was unsupported by substantial evidence or controlled by an error of law.
III.

Listing 1.04
Finally, Plaintiff contends the ALJ erred in failing to find that Plaintiff’s degenerative disc

disease met or medically equaled the criteria of Listing 1.04. Plaintiff contends she satisfies Listing
1.04A and argues the ALJ erred in requiring that she establish the inability to effectively ambulate
to satisfy Listing 1.04A. The Magistrate Judge recommended affirming the ALJ’s finding on the
basis that Plaintiff had failed to direct the court to evidence of positive straight-leg raising tests, both
sitting and supine. In her objections to the R&R, Plaintiff fails to address the assertion that she has
not directed the court to evidence of positive straight-leg raising tests, both sitting and supine.
Plaintiff focuses her argument on the proposition that Listing 1.04A does not require an inability to
ambulate effectively.
Listing 1.04 concerns disorders of the spine and includes degenerative disc disease as a listed
impairment. For degenerative disc disease to qualify as a listed impairment under Listing 1.04A
there must be “[e]vidence 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).” In this case, the ALJ found that Plaintiff
did not meet the requirements of Listing 1.04 and stated “she is capable of ambulating effectively as
defined in Listing 1.00B2b, and the record does not confirm positive straight leg-raising tests in
both the sitting and supine positions or motor, sensory and reflex loss as required by Listing 1.04A.”

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After reviewing Plaintiff’s medical records, it does not appear that Plaintiff exhibited the
requisite positive straight leg-raising tests in both the sitting and supine positions or sufficient
motor, sensory, and reflex loss. Plaintiff has, therefore, failed to demonstrate that the ALJ’s finding
is unsupported by substantial evidence. Although the Magistrate Judge appears to have concluded
that Listing 1.04A requires the inability to effectively ambulate, the Court need not reach the issue
because Plaintiff has not demonstrated positive straight leg-raising tests in both the sitting and
supine positions or sufficient motor, sensory, and reflex loss. Accordingly, to the extent the ALJ
erred by requiring an inability to effectively ambulate in order to qualify under Listing 1.04A, such
error was harmless.
CONCLUSION
The Court has thoroughly reviewed the entire record as a whole, the briefs, the Magistrate
Judge’s R&R, Plaintiff’s objections to the R&R, and applicable law. For the foregoing reasons, the
Court overrules Plaintiff’s objections [ECF #15] and respectfully adopts and incorporates by
reference the Magistrate Judge’s R&R [ECF #14] except as to the Magistrate Judge’s ruling that
Listing 1.04A requires the claimant demonstrate an inability to effectively ambulate. The
Commissioner’s decision is hereby AFFIRMED.
IT IS SO ORDERED.
August 24, 2016
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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