Opinion
2:19-CV-02047-YY
11-15-2021
MARK S., [1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
Youlee Yim You United States Magistrate Judge
On March 24, 2021, this court issued a judgment affirming the Commissioner's decision denying plaintiff's application for Supplemental Security Income. ECF 18. Plaintiff thereafter timely filed a Motion to Alter Judgment pursuant to Federal Rule of Civil Procedure 56(e), ECF 20, to which the Commissioner has filed a response, ECF 21, and plaintiff has filed a reply, ECF 22. The motion is denied for the reasons explained below.
I. Legal Standard Regarding Rule 59(e) Motions
“[A] Rule 59(e) motion is an ‘extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.'” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). “A district court may grant a Rule 59(e) motion if it ‘is presented with newly discovered evidence, committed clear error, or if there is an intervening change in controlling law.'” Id. (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)). A motion under Rule 59(e) also may be granted to avoid “manifest injustice.” McDowell, 197 F.3d at 1255 n.1 (citation omitted); see also Roschewski v. Raytheon Co., 471 Fed.Appx. 588, 589 (9th Cir. 2012). The disposition of a motion to alter is within the discretion of the district court. See McDowell, 197 F.3d at 1255 n.1 (“The district court enjoys considerable discretion in granting or denying” a motion under Rule 59(e)).
II. Acquiescence Ruling 15-1(4)
Plaintiff argues this court erred in applying Acquiescence Ruling (“AR”) 15-1(4) in its analysis as to whether the ALJ properly found plaintiff's cervical spine impairment did not meet Listing 1.04A. Mot. Alter J. 2-3 (citing Opinion and Order 13).
The court notes that it mislabeled AR 15-1(4) as “SSR 15-1(4)” in its opinion. See Opinion and Order 13.
On September 23, 2015, the Social Security Administration (“SSA”) issued AR 15-1(4) in response to Radford v. Colvin, 734 F.3d 288, 293 (4th Cir. 2013), a Fourth Circuit decision that held claimants could meet Listing 1.04A even though their relevant symptoms were not always simultaneously present. In promulgating AR 15-1(4), the SSA made clear that, contrary to Radford, its “policy is that listing 1.04A specifies a level of severity that is only met when all of the medical criteria listed in paragraph A are simultaneously present[.]” AR 15-1(4), available at 2015 WL 5697481, at *4 (citing 20 C.F.R. §§ 404.1525(a), 416.925(a)). The SSA explained:
Listing 1.04A uses the conjunction “and” when enumerating the medical criteria in order to establish that the entire set of criteria must be present at the same time on examination. When this set of criteria is present on examination, the individual has the clinical presentation we expect from a person who suffers from nerve root compression that is so severe that it would preclude any gainful activity.
On the other hand, when the listing criteria are scattered over time, wax and wane, or are present on one examination but absent on another, the individual's nerve root compression would not rise to the level of severity required by listing 1.04A. An individual who shows only some of the criteria on examination presents a different, less severe clinical picture than someone with the full set of criteria present simultaneously. To meet the severity required by the listing, our policy requires the simultaneous presence of all of the medical criteria in listing 1.04A.Id.
Plaintiff relies on language from AR 15-1(4) that states: “This ruling applies only to claims in which the claimant resides in Maryland, North Carolina, South Carolina, Virginia, or West Virginia at the time of the determination or decision at any level of administrative review.” 2015 WL 5697481, at *5. These are the states within the Fourth Circuit. Plaintiff argues that because he resides in Oregon, AR 15-1(4) does not apply and, thus, each element of Listing 1.04A need not be simultaneously present. Mot. Alter J. 1-2.
However, AR 15-1(4) clearly states that the Fourth Circuit's decision “is inconsistent with our interpretation of listing 1.04A and of the severity and durational requirements at step three of the sequential evaluation process.” 2015 WL 5697481, at *5. It further states, “[t]his Social Security AR explains how we will apply a holding in a decision of the United States Court of Appeals for the Fourth Circuit that we determined conflicts with our interpretation of the section in the Listing of Impairments (the Listings) that addresses disorders of the spine with evidence of nerve root compression.” 2015 WL 5697481, at *1.
In these States, in deciding whether a claimant's severe medically determinable disorder of the spine meets listing 1.04A, adjudicators will not require that all of the medical criteria in paragraph A appear simultaneously or in particularly close proximity. Rather, adjudicators will engage in what the court of appeals described as “a more free-form, contextual inquiry that makes 12 months the relevant metric for the assessment of the claimant's duration of disability.”Id. at *5. Thus, for all other states, SSA “policy is that listing 1.04A specifies a level of severity that is only met when all of the medical criteria listed in paragraph A are simultaneously present.” Id. at *4; see Wesley v. Comm'r of Soc. Sec. Admin., No. CV-17-00890-PHX-GMS, 2018 WL 2753150, at *4 (D. Ariz. June 8, 2018) (holding that AR 15-1(4) “reaffirmed the agency's policy that ‘listing 1.04A specifies a level of severity that is only met when all of the medical criteria listed in paragraph A are simultaneously present, '” directed only ALJs in the Fourth Circuit to follow the Radford decision, and “[t]herefore, for the rest of the states in other circuits, the SSA continues to require that all symptoms be present simultaneously”).
While the Ninth Circuit has not issued an opinion on this issue, courts throughout the circuit have applied AR 15-1(4) under the rationale it was promulgated under the Social Security Administration's regulatory authority and is therefore entitled to substantial deference. See Smith v. Colvin, No. 2:15-CV-00107-AA, 2016 WL 8711697, at *4 (D. Or. Feb. 5, 2016) (explaining the Ninth Circuit has held “that the SSA's policy interpretation should receive substantial deference when the interpretation is a ‘fair and considered judgement' rather than a convenient litigation position” and because AR 15-1(4) “explained the policy concerns and provided a considered and reasonable judgment [it] is, therefore, accorded substantial deference”) (citing Bray v. Comm'r Soc. Sec. Admin, 554 F.3d 1219, 1225 (9th Cir. 2009)); John Thomas C. v. Saul, No. 1:19-CV-3002-FVS, 2020 WL 4730729, at *5 n.3 (E.D. Wash. Mar. 13, 2020) (directing the ALJ to consider AR 15-1(4) in re-evaluating plaintiff's back impairment at step three); Doran v. Colvin, No. CV-16-00334-PHX-JAT, 2016 WL 6647665, at *4 (D. Ariz. Nov. 10, 2016) (holding that under AR 15-1(4) each element must be simultaneously present to meet the listing criteria); Evans v. Colvin, No. CV 15-07974-KES, 2016 WL 4744115, at *3 (C.D. Cal. Sept. 12, 2016) (finding the symptoms required by Listing 1.04A “must all be present at the same time”) (citing Smith, 2016 WL 8711697, at *4).
Courts elsewhere have made similar rulings. See, e.g., Casillas v. Comm'r of Soc. Sec., No. 1:19-CV-00629 EAW, 2020 WL 4283896, at *4 (W.D.N.Y. July 27, 2020); Atkins v. Colvin, No. 15-1168-JWL, 2016 WL 2989393, at *10-12 (D. Kan. May 24, 2016).
Therefore, the court's application of AR 15-1(4) was correct and does not provide a basis for altering the judgment.
III. Waiver
Plaintiff argues the court erred in finding he waived the argument that his impairments met or equaled Listing 1.04C because he failed to raise it before the ALJ or Appeals Council. Mot. Alter J. 2. Listing 1.04C pertains to “[l]umbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.” Plaintiff contends the Listings are a regulatory framework that compels a finding of disability when they are met or equaled, and the ALJ had an independent duty to evaluate the relevant evidence before concluding his impairments did not meet or equal a listed impairment. Id. at 3.
“[W]hen claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Here, in his detailed pre-hearing memorandum to the ALJ, plaintiff argued that he had an impairment or combination of impairments that met or medically equaled Listings 1.04A, 12.04, and 12.06. Tr. 300. He made no mention of Listing 1.04C or stenosis. And while plaintiff specifically argued in his six-page letter to the Appeals Council that Listings 1.04A, 12.04, and 12.06 applied, he again said nothing about Listing 1.04C or stenosis and did not object to the ALJ's decision on the basis that the ALJ failed to consider Listing 1.04C. Tr. 308. Therefore, plaintiff waived any contention regarding Listing 1.04C. See Harris v. Berryhill, 738 Fed.Appx. 529, 531 (9th Cir. 2018) (“Because Harris was represented by counsel during the administrative proceedings, she waived any contention that the ALJ failed to consider Listing 12.05(C), Intellectual Disability, by failing to raise the issue before either the ALJ or the Appeals Council.”) (cited pursuant to Ninth Circuit Rule 36-3); Turner v. Berryhill, 705 Fed.Appx. 495, 498 (9th Cir. 2017) (“Because he did not present them to the ALJ or district court and none of the waiver exceptions apply, Turner waived . . . whether the ALJ erred by . . . failing to evaluate whether the combined effects of Turner's impairments equaled Listing 12.08[.]”) (cited pursuant to Ninth Circuit Rule 36-3); Camilli v. Berryhill, No. 18-CV-06322-JSC, 2019 WL 3412921, at *12 (N.D. Cal. July 29, 2019) (finding plaintiff “waived any contention that the ALJ failed to consider whether the combination of impairments met or equaled Listing 1.04 by failing to raise the issue before either the ALJ or the Appeals Council”).
Plaintiff contends the court erred by relying on Meanel, Mot. Alter J. 2-3 (citing Opinion and Order 15), and that the Supreme Court's post-Meanel holding in Sims v. Apfel, 530 U.S. 103 (2000), is at odds with this court's waiver analysis. Mot. Alter J. 2-3. However, Sims stands for the proposition that “‘[c]laimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues.'” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (quoting Sims, 530 U.S. at 112). The Supreme Court specifically noted that its holding only encompassed whether a plaintiff was required to raise the issue at the Appeals Council level and did not affect “‘[w]hether a claimant must exhaust issues before the ALJ.'” Id. (quoting Sims, 530 U.S. at 107). Thus, applying Sims, Shaibi, and Meanel, the general rule in the Ninth Circuit is that a claimant must raise an issue at the administrative level before asserting the issue to the district court. See Robert W. P. v. Comm'r Soc. Sec. Admin., No. 3:19-CV-01209-BR, 2020 WL 5026843, at *6 (D. Or. Aug. 25, 2020). Plaintiff failed to do so here.
Finally, plaintiff asserts that a finding of waiver is “particularly inappropriate . . . because part of the argument that the ALJ reversibly erred in not considering Listing 1.04C relies upon the ALJ's own Residual Functional Capacity assessment finding Slater ‘should avoid walking on uneven terrain[.]'” Mot. Alter J. 2.
At step three, the ALJ is tasked with determining if one or more of a claimant's severe impairments “meets or equals” one of the presumptively disabling impairments listed in the regulations. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). “[F]or a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original); see also Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013).
Plaintiffs meet or equal Listing 1.04C where they have lumbar spinal stenosis resulting in, among other things, an “inability to ambulate effectively, as defined in 1.00B(2)(b).” 20 C.F.R., Pt. 404, Subpt. P, App. 1. § 1.04C. An inability to ambulate effectively means “an extreme limitation of the ability to walk[.]” Id. § 1.00B(2)(b)(1). Examples include “the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail.” Id. § 1.00B(2)(b)(2).
Plaintiff contends the ALJ's RFC assessment that he “‘should avoid walking on uneven terrain'” meets the definition under Listing 1.04C for inability to ambulate effectively. Pl. Br. 11 (citing Tr. 27). But the ALJ did not conclude in the RFC assessment that plaintiff was incapable of walking on uneven surfaces, only that he should avoid doing so in his employment. Significantly, there is no medical evidence in the record that plaintiff could not walk on uneven terrain, and there is a great deal of medical evidence of his ability to walk without difficulty. E.g., Tr. 451, 461, 471, 477, 496, 504, 509, 588, 598, 607, 612, 662, 681, 686, 691 (“Able to tandem gait, walk on his heels and toes without difficulty, and ambulated with no difficulties with good arm swing.”), 517, 584, 696, 698 (“The patient ambulates with no difficulties. Able to tandem gait.”), 715, 752 (normal gait). Thus, the ALJ's finding does not equate with the inability to ambulate, a necessary criteria for Listing 1.04C. See Moreno v. Astrue, 444 F App'x 163, 164 (9th Cir. 2011) (holding the ALJ did not err in concluding the plaintiff failed to meet or equal Listing 1.02A, where the ALJ's RFC assessment limited the claimant to “walking on even terrain” because “the RFC did not state that [the plaintiff] was incapable of walking on uneven surfaces, only that he should avoid doing so in his employment”) (cited pursuant to Ninth Circuit Rule 36-3).
For these reasons, the court declines to alter its decision that plaintiff waived any argument under Listing 1.04C.
IV. Nerve Root Imaging
Plaintiff argues this court made both legal and factual errors when it “determined [he] did not cite to evidence of nerve root compromise under Listing 1.04A . . . because he only cited to evidence of imaging showing nerve ‘irritation.'” Mot. Alter J. 3 (citing Opinion and Order 14-15).
A. Error of Law
Plaintiff contends the court employed an “erroneous reading” of Listing 1.04, which “does not include any requirement for imaging confirming nerve root compromise.” Mot. Alter J. 3.
But this court did not state that listing 1.04A requires that plaintiffs include “imaging confirming nerve root compromise.” Rather, this court generally found that “plaintiff cites no evidence of nerve root compromise in the record” and “points to imaging and notes from an imaging follow-up appointment, but the imaging does not discuss nerve root compromise and the notes only discuss nerve ‘irritation.'” Opinion and Order 14-15 (citing Pl. Br. 10 (citing Tr. 716, 721)). In Ortega v. Comm'r Soc. Sec. Admin., No. 2:17-CV-00042-MKD, 2018 WL 1528163, at *5 (E.D. Wash. Mar. 28, 2018), the court similarly concluded the ALJ's finding that “the evidence did not meet Listing 1.04A [was] supported by substantial evidence” where “the evidence [the p]laintiff identifie[d] did not undermine the ALJ's finding.” There, too, the “[p]laintiff provide[d] no evidence of nerve root compromise” and “cite[d] to imaging . . ., but the findings of this imaging do not discuss nerve root compromise.” Id.
Because this court did not read the requirements of Listing 1.04A to include confirmatory imaging, there was no error of law.
B. Error of Fact
Plaintiff asserts the court erred in finding that “the imaging only showed nerve root irritation, ” which is “not evidence of nerve root compromise.” Mot. Alter J. 4 (citing Opinion and Order 14-15). In support of his argument that “to irritate a nerve root is to compromise it[, ]” plaintiff cites to a journal article and two websites. Mot. Alter J. 4 (citing James A. Berry et. al, A Review of Lumbar Radiculopathy, Diagnosis, and Treatment, Cureus (Oct. 17, 2019), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6858271/; Neural Foraminal Stenosis Definition, Spine-health, https://www.spine-health.com/glossary/neural-foraminal-stenosis (last visited November 14, 2021); Radiculopathy, John Hopkins Med., https://www.hopkinsmedicine.org/health/conditions-and-diseases/radiculopathy (last visited November 14, 2021). However, plaintiff did not previously cite these sources. Remand for the consideration of new evidence is only appropriate where plaintiff can show: (1) that new material evidence has become available, and/or (2) good cause for failure to present the evidence earlier. 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
Neither the article nor the websites are “new.” And even if plaintiff would be able to show good cause, he cannot establish that the articles and websites are material. Materiality requires plaintiff to show “there is a ‘reasonable possibility' that the new evidence would have changed the outcome of the administrative hearing.” Mayes, 276 F.3d at 462. Even if the article and websites had been part of the record before the ALJ, substantial evidence supports the ALJ's findings and inferences. See Opinion and Order 14-15; accord Garcia v. Colvin, No. CV 14-5070-PLA, 2015 WL 1467256, at *5 (C.D. Cal. Mar. 26, 2015) (holding that plaintiff did not satisfy Listing 1.04A because “irritation of the lumbar and sacral nerve in the lumbar spine” was not equivalent to nerve root compression”) (emphasis in original).
Moreover, these sources, which do not constitute objective medical evidence, are not sufficient to establish that plaintiff has nerve root compromise. See 20 C.F.R. §§ 404.1521 (“[A] physical or mental impairment must be established by objective medical evidence from an acceptable medical source.”), 404.1502(f) (“Objective medical evidence means signs, laboratory findings, or both.”); Brown v. Astrue, No. C09-5225RJB-KLS, 2010 WL 1708682, at *11 (W.D. Wash. Mar. 30, 2010), report and recommendation adopted, 2010 WL 1708638 (W.D. Wash. Apr. 27, 2010) (concluding that “the ALJ was not remiss in placing greater weight on the ‘relatively benign' physical clinical findings obtained by Dr. Schuster at the time of the examination” because “[the] plaintiff cite[d] to no legal authority, nor [was] the undersigned aware of any, that equate[d] research journal articles with objective medical evidence”). Here, the ALJ's decision is supported by objective medical evidence, as this court previously observed. Opinion and Order 23.
V. Theory Regarding Listing 1.04A
Finally, plaintiff argues the court erred in finding that his initial brief did not contain a theory as to how Listing 1.04A was met. Mot. Alter J. 5-6 (citing Opinion and Order 14). As this court previously explained in detail, the record supports the ALJ's conclusion that plaintiff does not meet Listing 1.04A. See Opinion and Order 13-14. Thus, even if the court erred in finding plaintiff did not include a theory as to how Listing 1.04A was met, it does not affect the final analysis.
Plaintiff's other arguments are essentially an attempt “to relitigate old matters.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008); see also McReynolds v. Berryhill, No. C17-5984 RJB, 2018 WL 6042305, at *2 (W.D. Wash. Nov. 19, 2018) (“Plaintiff's Motion is nothing more than a request for the Court to ‘rethink what it has already thought.'”) (quoting Motorola v. J.B. Rodgers Mech. Contrs., Inc., 215 F.R.D. 581, 582 (D. Ariz. 2003)).
In sum, plaintiff has failed to show the court committed clear error or there is manifest injustice and therefore has not presented a sufficient basis for granting Rule 59(e) relief.
ORDER
Plaintiff's Motion to Alter Judgment (ECF 20) is DENIED.