Opinion
5:20-CV-00347-FL
01-03-2022
Arthur Ellis, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Plaintiff Arthur Ellis challenges Administrative Law Judge (“ALJ”) Larry A. Miller's denial of his application for social security income. Ellis claims that ALJ Miller erred in evaluating his conditions under the Listing of Impairments. Both Ellis and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 18, 24.
After reviewing the parties' arguments, the court has determined that ALJ Miller erred in his determination. ALJ Miller failed to explain why Ellis's conditions did not meet or equal Listing 1.04A. The undersigned thus recommends that the court grant Ellis's motion, deny Kijakazi's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In June 2017, Ellis applied for disability benefits alleging a disability that began in November 2015. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Ellis appeared before ALJ Miller for a hearing to determine whether he was entitled to benefits. ALJ Miller determined Ellis had no right to benefits because he was not disabled. Tr. at 12-25.
ALJ Miller found that Ellis's lumbar degenerative disc disease, radiculopathy, obesity, and history of left ankle fracture were severe impairments. Tr. at 14. ALJ Miller also found that Ellis's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Miller then determined that Ellis had the residual functional capacity (“RFC”) to perform light work with other limitations. Tr. at 15. Ellis can sit, stand, or walk for only 30 minutes at a time. Id. He can occasionally climb, stoop, kneel, crouch, crawl, and balance on narrow, slippery, or moving surfaces. Id. Ellis cannot work at heights, around dangerous machinery, or around cold temperatures. Id.
ALJ Miller concluded that Ellis could not perform his past relevant work as a security guard, electrician, or janitor. Tr. at 23. But he could perform his past work as a collector as that work is generally performed. Tr. at 22-23. And considering his age, education, work experience, and RFC, ALJ Miller found that jobs existed in significant numbers in the national economy that Ellis could perform. Id. These jobs include office helper, furniture rental consultant, and photocopy machine operator. Tr. at 24. Thus, ALJ Miller found that Ellis was not disabled. Tr. at 24-25.
After unsuccessfully seeking review by the Appeals Council, Ellis commenced this action in July 2020. D.E. 5.
II. Analysis
A. Standard for Review of the Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
In November 2015, Ellis suffered a back injury at work when a vending machine on a dolly gave way. Tr. at 242. He reported sudden pain, and an examination found tenderness and decreased range of motion. Tr. at 243.
Two days later, Ellis continued to display tenderness in his lumbar spine. Tr. at 368. An examination revealed diminished strength, decreased sensation, absent reflexes, and positive straight leg raises, bilaterally, from a seated position. Id.
Ellis underwent an MRI which showed L4-L5 disc dissection and far lateral disc material exiting the neural foramen bilaterally with disc material contacting the exiting nerve root bilaterally. Tr. at 363. And there was disc dissection at other levels of the lumbar spine. Tr. at 375.
At a follow-up appointment in December 2015, an examination revealed findings much like those the month before. Tr. at 366.
Ellis began physical therapy in February 2016. Tr. at 261-62. His initial evaluation found reduced range of motion, numbness in his bilateral lower extremities, reduced motor strength, and hyposensitivity. Tr. at 261. Providers also noted positive results on straight leg raise testing on Ellis's left side. Tr. at 262. Follow-up visits the next month noted similar findings. Tr. at 272-73, 279-80.
In April 2016, Ellis demonstrated similar results for sensation and range of motion, along with reduced strength and positive findings with straight leg raise testing. Tr. at 289. He received an epidural steroid injection later that month. Tr. at 355.
One month later, physical therapy notes remained unchanged, aside from a decreased ability to bend backwards and an increased ability to bend to the left. Tr. at 299-300. Around this time, Ellis sought treatment for low back pain radiating into his legs, accompanied by numbness. Tr. at 359. An EMG showed mild subacute denervation in his left foot muscles. Tr. at 360. Providers assessed left peroneal neuropathy. Tr. at 370.
A follow-up physical therapy session, providers recorded similar findings to his earlier visits but with an increased range of motion in his hip, although it remained diminished. Tr. at 309-10. Later that month, Ellis had an antalgic, asymmetric gait and walked with a cane. Tr. at 346.
In June 2016, physical therapy notes reveal that Ellis had pain with all movements and a 50% lumbar range of motion. Tr. at 312. He continued to show diminished range of motion in his left hip as well as his left knee. Tr. at 313. Providers noted Ellis's high pain levels in his back and remarked that he made little progress. Tr. at 314. They made similar observations later that month. Tr. at 323-24. Although Ellis's strength increased slightly, his overall strength remained 3+/5. Id. Noting no major change in July 2016, providers discharged Ellis from physical therapy. Tr. at 339.
In December 2016, Ellis reported doing well since undergoing bariatric surgery three months earlier. Tr. at 396-97, 415. Six months later, he again sought treatment for back pain. Tr. at 428-29. An x-ray showed degenerative changes in Ellis's lumbar spine. Id.
In October 2017, Dr. Bamdad Farhad performed a consultative examination. Tr. at 454. Dr. Farhad observed diminished sensation and that Ellis shifted positions. Tr. at 22. He assessed exertional limitations. Tr. at 22, 454.
Ellis continued to report radicular pain in his lower back in June 2018. Tr. at 461. He began experiencing left foot pain eight months later. Tr. at 525. An examination found swelling and reduced range of motion in his left ankle. Tr. at 528. Residual swelling remained one year later, and Ellis stood slowly and walked with a limp. Tr. at 523.
D. 1.00 Listings (Musculoskeletal Disorders)
Ellis contends that ALJ Miller erred by finding that his impairments did not meet or medically equal the requirements of Listing 1.04. The Acting Commissioner maintains that the evidentiary record supports ALJ Miller's finding. The court finds that ALJ Miller failed to properly analyze Ellis's impairments at step three.
1. Overview of Listing of Impairments
The Listing of Impairments details impairments that are “severe enough to prevent an individual from doing any gainful activity.” 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). “The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants “whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background”).
The claimant has the burden of proving that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, cannot establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D. N.C. Dec. 10, 2010) (“Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.”).
An ALJ need not explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must 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). When the evidence exists but is rejected without discussion, the “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, perhaps even “[a] cursory explanation” at step three may 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 Fed.Appx. 326, 328 (4th Cir. 2011)). Still, 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.
2. Listing 1.04A
Under Listing 1.04 (disorders of the spine), a claimant first must show a disorder of the spine, such as a “herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [and/or] vertebral fracture ... resulting in compromise of a nerve root (including the cauda equina) or the spinal cord.” 20 C.F.R., Part 404, Subpt. P, Appx. 1, § 1.04. The claimant must then satisfy any one of three categories of certain distinguishing characteristics labeled A through C:
Ellis does not argue that his impairments meet sections B or C of Listing 1.04.
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.
The Fourth Circuit has rejected a contention that Listing 1.04A required that all the requisite symptoms be present simultaneously or in close proximity. Radford, 734 F.3d at 294. It stated:
We hold that Listing 1.04A requires a claimant to show only ... 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. 20 C.F.R. § 404.1509. A claimant need not show that each symptom was present at precisely the same time-i.e., simultaneously-in order to establish the chronic nature of his condition. Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity.Id.
In response to Radford, the SSA issued Acquiescence Ruling 15-1(4), which sets forth a two-step test for application of Listing 1.04A:
Adjudicators will decide whether the evidence shows that all of the medical criteria in paragraph A are present within a continuous 12-month period (or, if there is less than 12 months of evidence in the record, that all the medical criteria are present and are expected to continue to be present). If all of the medical criteria are not present within a continuous 12-month period, adjudicators will determine that the disorder of the spine did not meet the listing.
If all of the medical criteria in paragraph A are present within a continuous 12-month period (or are expected to be present), adjudicators will then determine whether the evidence shows-as a whole-that the claimant's disorder of the spine caused, or is expected to cause, nerve root compression continuously for at least 12 months. In considering the severity of the nerve root compression, the medical criteria in paragraph A need not all be present simultaneously, nor in particularly close proximity. The nerve root compression must be severe enough, however, that
the adjudicator can fairly conclude that it is still characterized by all of the medical criteria in paragraph A.AR 15-1(4), 80 Fed.Reg. at 57420, 2015 WL 5564523.
3. Application
At step three, ALJ Miller found that Ellis's impairments did not meet or medically equal a Listing impairment. Tr. at 14-15. ALJ Miller remarked that the record did not reveal nerve root compression with other Listing 1.04 criteria. Id. And ALJ Miller noted that he considered AR 151(4). Id. Although his review recites the Listing criteria, it does not analyze it against the record. Id.
Ellis says that ALJ Miller erred by not finding that his impairments met or medically equaled Listing 1.04A. Contending he satisfies this Listing, Ellis notes that, following his November 2015 injury, and MRI showed disc dissection with disc material contacting the exiting nerve root. Examinations found decreased range of motion, diminished sensation, reduced strength, and absent reflexes. Ellis reported that his pain radiated into his left lower extremity. Other treatment records during the relevant period noted hyposensitivity, numbness, neuropathy, limited range of motion, and positive straight leg raise tests. And several of these signs continued well over two years after his work accident.
Despite these indications, ALJ Miller's step three finding was conclusory. He stated that the Listing 1.04A criteria did not meet the 12-month requirement period. Tr. at 15. No more elaboration was offered.
The Acting Commissioner challenges any notion that Listing 1.04A criteria are possibly met. She contends that one must consider all the Listing 1.04A criteria along with other parts of the Listing, including the preamble to the 1.00 musculoskeletal listings.
But it is an ALJ, not the reviewing court, who must consider all those factors in the first instance. The Acting Commissioner maintains the 1.04A factors were no longer met because Ellis's condition improved. But ALJ Miller made no such finding, and the undersigned declines an invitation to draw that conclusion. So the post hoc rationalization the Acting Commissioner raises to support ALJ Miller's step three finding fails to rescue his lack of analysis.
The undersigned declines to decide, for example, whether “neurological abnormalities that persist” are residual to an “ongoing or progressive condition [that is] no longer present” in assessing the existence of the Listing 1.04A criteria. D.E. 25 at 8. Nor is it the province of the court to presume, or determine, whether an unspecified position of straight leg raise testing satisfies this factor of Listing 1.04A. Id. at 9. If the applicable factors were not present, even intermittently, for the required 12-month period, ALJ Miller needed to explain that conclusion.
The Acting Commissioner's citation in her supporting memorandum, Listing 1.00.E.2, appears incorrect. The correct citation is Program Operations Manual System (“POMS”) § 34221.013.E.2, available at https://secure.ssa.gov/poms.nsf/lnx/0434221013. As a source for internal SSA guidance, POMS carries no legal force and is not biding on either the Commissioner or the court. See Schweiker v. Hansen, 450 U.S. 785, 788 (1981). The Acting Commissioner also miscites how to consider the effect of treatment. D.E. 25 at 8. Although she identifies the citation as a preamble to the 1.00 Listings, it too is a POMS reference. See POMS § 34221.013.I.3.
And the undersigned cannot agree with the Acting Commissioner's position that a claimant cannot meet Listing 1.04A when he has a negative straight leg raise tests during the relevant period, despite positive test results in the same period. D.E. 25 at 8.
Instead, the Listing 1.04A criteria are findings that ALJ Miller needed to spell out. Contrary to Kijakazi's argument, ALJ Miller's RFC discussion does not sufficiently explain the rationale behind his step three finding. Without explicit findings, the Acting Commissioner may not advance them to support the determination.
In sum, Ellis has shown sufficient evidence in the medical record supporting his claim that he meets the criteria of Listing 1.04A. Perhaps the record shows the criteria, or it may establish it but not to a sufficient degree to satisfy this Listing. So the step three finding requires the decisionmaker to parse the evidence and identify which criteria are met or not and explain why.
The Acting Commissioner argues that Ellis's conditions are not severe enough to preclude work activity because his treating orthopedist concluded that he could do light work, which ALJ Miller found persuasive. Tr. at 21-22.
Having failed to compare the evidence to the Listing 1.04A criteria and explain why each factor was or was not met, the undersigned cannot conduct a meaningful review of ALJ Miller's step three finding. So remand is appropriate. The undersigned thus recommends that the court grant Ellis's motion and remand the matter to the Acting Commissioner for additional consideration.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Ellis's Motion for Judgment on the Pleadings (D.E. 18), deny Kijakazi's Motion for Judgment on the Pleadings (D.E. 24), and remand this matter to the Acting Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.