Opinion
Civil Action 8:20-cv-03070-JMC-JDA
09-13-2021
Tonya Glover Tuten, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying Plaintiff's claim for disability insurance benefits (“DIB”). For the reasons set forth below, it is recommended that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In June 2018, Plaintiff filed an application for DIB, alleging disability beginning May 25, 2017. [R. 165-70.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 101-04, 106-10.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on June 20, 2019, ALJ Flora Lester Vinson conducted a de novo hearing on Plaintiff's claim. [R. 35-70.]
The ALJ issued a decision on August 22, 2019, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 12-33.] At Step 1, the ALJ found Plaintiff met the Act's insured-status requirements through December 31, 2022, and had not engaged in substantial gainful activity since May 25, 2017, the alleged onset date. [R. 17, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: major depressive disorder with psychotic features, posttraumatic stress disorder, obesity, spine disorder, and osteoarthritis. [R. 17, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 18, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
[T]he claimant has the [RFC] to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a) except the claimant could occasionally stoop or climb stairs/ramps, but should never kneel, crouch, crawl or climb ladders, ropes or scaffolds. The claimant should avoid concentrated exposure to unprotected heights and dangerous unprotected moving mechanical parts. She should have no work in extreme cold. The claimant's ability to understand, remember and carry out instructions allows her to perform simple, routine tasks. Her use of judgment allows her to make simple work-related decisions. She should have no required close, team-type or tandem interaction with coworkers and no more than incidental contact with the general public. She is able to tolerate few changes in a routine work setting.[R. 20, Finding 5.] At Step 4, the ALJ found that Plaintiff was incapable of performing her past relevant work as a receptionist. [R. 27, Finding 6.] Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert (“VE”), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 27, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from May 25, 2017, the alleged onset date, through the date of the decision. [R. 29, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 1-6.] Plaintiff filed the instant request for judicial review on August 26, 2020. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ erred in denying Plaintiff's application for benefits. [Doc. 11.] Specifically, Plaintiff argues that the ALJ erred in failing to properly assess medical source opinion evidence [id. at 14-23], in failing to properly consider Listing 1.04 [id. at 23-25], and in failing to explain her findings regarding Plaintiff's RFC in accordance with Social Security Ruling 96-8p [id. at 25-32]. The Commissioner, on the other hand, contends that the ALJ applied the correct law and that substantial evidence supports the ALJ's decision. [Doc. 12 at 10-24.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (“Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.'”).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ), ” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). “Disability” is defined 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 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)-and gainful-done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 404.1574-.1575.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See Id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do her past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's is, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 404.1520c(c)(2). As for the relationship with the claimant, ALJ's consider the “length of the treating relationship, ” the “[f]requency of examinations, ” the “[p]urpose of the treating relationship, ” the “[e]xtent of the treating relationship, ” and whether the source has examined the claimant. 20 C.F.R. § 404.1520c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. §§ 404.1513(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49, 462-03, 49, 464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain). In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49, 463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49, 463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49, 464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Listing Analysis
Listing 1.04
When a claimant's impairment or combination of impairments meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is deemed disabled and no further analysis is required. See 20 C.F.R. § 404.1520(a)(4)(iii). To determine whether a claimant's impairments meet or equal a listed impairment at Step 3 of the sequential analysis, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Peck v. Colvin, No. 8:12-cv-02594-DCN, 2014 WL 994925, at *12 (D.S.C. Mar. 13, 2014) (noting that, without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, it is simply impossible to tell whether there was substantial evidence to support the determination). “In cases where there is ‘ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing.” Id. (citations omitted). While the ALJ may rely on the opinion of a State agency medical consultant in conducting a listing analysis, see 20 C.F.R. § 404.1527(f)(2)(iii), the ALJ ultimately bears the responsibility for deciding whether a claimant's impairments meet or equal a listing, see id. § 404.1527(e)(2).
Listing 1.04 addresses specific disorders of the spine, resulting in compromise of a nerve root or the spinal cord. 20 C.F.R. Pt. 404, Subpt. P, App'x. 1, § 1.04. A claimant with a spinal impairment may qualify as “disabled” under Listing 1.04 if there is:
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)[.]20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 104.
On December 3, 2020, the Administration published new listings, effective April 2, 2021, for evaluating musculoskeletal disorders, replacing Listing 1.04A with Listing 1.15. See 85 Fed.Reg. 78164, 2020 WL 7056412. Because these new listings were published after the ALJ's decision, the undersigned applies Listing 1.04A, which was effective at the time of the ALJ's decision.
Discussion
The ALJ's entire analysis evaluating Plaintiff's impairments at Step 3 with regard to Listing 1.04 provides as follows:
Special consideration was given to Listings 1.04 of the Listing of Impairments. The evidence does not demonstrate disorder of the spine resulting in compromise of a nerve root or the spinal cord to meet Listing 1.04 of the Listing of Impairments. The claimant does not meet or equal the cited section or any other section of the Listing of Impairments. These findings are consistent with the [RFC] described below.[R. 18.] Plaintiff contends the ALJ erred by failing to provide any findings of fact “regarding [Plaintiff's] conditions and whether or not she met Listing 1.04A.” [Doc. 11 at 24.] Plaintiff further contends that her condition and medical records contain factual support that the listing could be met. [Id.] Specifically, Plaintiff notes that evidence in the record includes references to her spinal stenosis of the lumbar region, evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, muscle weakness, decreased sensation, and positive straight-leg raising test. [Id. (citing R. 310, 401, 409, 420).] Plaintiff argues that the ALJ's conclusory statement that Plaintiff did not meet Listing 1.04 “[w]ithout a comparison of the listed criteria to Plaintiff's symptoms” was reversible error, requiring remand for further evaluation. [Id. at 24-25.] The Court agrees.
The Commissioner argues the ALJ properly considered the Listing and concluded Plaintiff “did not satisfy the preliminary element of the Listing” [Doc. 12 at 17]. Indeed, the ALJ seems to have discounted evidence of record that might support Plaintiff's condition, but he failed to explain why he did so, and he did not compare the record evidence to the Listing 1.04 requirements in a way that would allow the Court to evaluate his findings. [See, e.g., R. 21 (noting Plaintiff testified that she uses a quad cane at the suggestion of her doctor); id. (“[Plaintiff] testified that she has lumbar stenosis, scoliosis, and osteorthritis in her back”); R. 22 (Plaintiff was evaluated “beginning August 2017, for evaluation of discomfort in the mid-back, which had been present for several years” and the treating physician “noted pretty substantial scoliosis”); R. 23 (“[Plaintiff] was seen . . . in November 2018, for lower back pain with x-rays showing thoracolumbar scoliosis with a dextrocurvature, sclerosis in the sacroiliac joints and arthritis seen throughout the facets of the lumbar spine” and “[p]hysical therapy was recommended and she was diagnosed with spinal stenosis of the lumbar region”); id. (“[Plaintiff] was seen twice in May 2019, for low back pain with MRI showing a diffuse bulge at desiccation at ¶ 4-5 and L5-S1” and “[s]he was diagnosed with spinal stenosis of the lumbar region and referred to pain management”); R. 24 (“[s]he was seen by an orthopedist in August 2017 with thoracic back pain”); id. (“[Plaintiff] alleges problems with back pain”); id. (“[Plaintiff] reported problems of severe back . . . pain”); id. (“[t]he evidence reveals she had a history of diagnosed scoliosis”).]
Further, a review of the medical evidence reveals that there is at least some evidence suggesting nerve root compression and associated neuro-anatomic distribution of pain and limitations of motion of the spine, muscle weakness, and positive straight leg raises from the sitting and supine positions. [See, e.g., R. 400 (Plaintiff reported constant and severe back pain and restricted range of motion); 401 (“There is gross levoscoliosis of lumbar spine. There is tenderness in the right paravertebral area in the lumbosacral region. SI joint is tender on the right. Lumbar flexion is 60E. Lumbar extension is 20E with pain. Left lateral rotation produces pain on the right side.”); 403 (noting “tenderness of the paraspinal region at ¶ 5 . . . flexion painful (mild), extension painful (mild), and pain with motion”); 409 (“decreased sensation of the knee and medial leg . . . supine straight leg raising test positive and seated straight leg raising test positive” on right and left).] However, the ALJ does not appear to have addressed this record evidence at all in his decision.
It is the duty of the ALJ to resolve conflicts in the evidence of record. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “[W]ithout a discussion of the conflicting evidence, it is difficult for a reviewing court to (1) track the ALJ's reasoning and be assured that all record evidence was considered and (2) understand how the ALJ resolved conflicts in the evidence.” Torruellas v. Saul, No. 819-cv-00923-MGL-JDA, 2020 WL 1149979, at *8 (D.S.C. Feb. 13, 2020), Report and Recommendation adopted by 2020 WL 1140707 (D.S.C. Mar. 9, 2020). Here, the ALJ's decision fails to compare Plaintiff's symptoms to the requirements of Listing 1.04A. Without such a discussion, the Court is unable to determine whether the ALJ's finding at Step 3 of the sequential analysis is supported by substantial evidence. See Cook, 783 F.2d at 1173 (remanding in part because it was “simply impossible to tell whether there was substantial evidence to support the determination” when the ALJ's decision failed to identify the relevant listed impairment and failed to compare each of the listed criteria to the evidence of the plaintiff's symptoms). “The ALJ's failure to expressly consider and discuss his findings regarding whether Plaintiff could satisfy Paragraph A . . . of Listing 1.04 constitutes reversible error and warrants a remand to the ALJ to properly consider the issue.” Torruellas, 2020 WL 1149979, at *8.
The undersigned does not express an opinion on the ultimate merits of Plaintiff's application for DIB and whether she meets the criteria for Listing 1.04A.
Remaining Allegations of Error
Because the Court finds that the ALJ's failure to properly address Listing 1.04 is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.