Opinion
No. 4:16-CV-30-FL
07-03-2017
ROSELLA WILLIAMS, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-11, -13] pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Claimant Rosella Williams ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on July 12, 2013, alleging disability beginning May 15, 2013. (R. 12, 129-31). The claim was denied initially and upon reconsideration. (R. 12, 42-69). A hearing before the ALJ was held on April 15, 2015, at which Claimant, represented by counsel, appeared and testified. (R. 12, 26-41). On May 18, 2015, the ALJ issued a decision denying Claimant's request for benefits. (R. 9-22). On January 27, 2016, the Appeals Council denied Claimant's request for review. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy that the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful activity since the alleged onset date. (R. 14). Next, the ALJ determined Claimant had the severe impairments of degenerative disc disease and disorders of the muscles and the non-severe mental impairment of affective mood disorder. (R. 14-15). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15). Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity ("RFC"), finding Claimant has the ability to perform medium work with the following limitations: frequently climb stairs and ramps, balance, kneel, crouch, and crawl; and occasionally climb ladders, ropes, and scaffolds and stoop. (R. 15-17). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely credible. (R. 16). At step four, the ALJ concluded Claimant was capable of performing her past relevant work as a certified nursing assistant. (R. 17).
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying objects weighing up to 25 pounds. If an individual can do medium work, he or she can also do sedentary and light work. 20 C.F.R. § 404.1567(c).
Claimant contends the ALJ erred by (1) failing to appropriately weigh the opinions of the treating physicians, (2) finding Claimant has the RFC to perform a reduced range of medium work and can perform her past relevant work, and (3) finding that Claimant's impairments do not meet or medically equal a listing, specifically Listing 1.04, without adequate explanation. Pl.'s Mem. [DE-12] at 3-12.
V. DISCUSSION
On May 15, 2013, Claimant fell off a stool at work resulting in severe bruising to her tail bone and elbows. (R. 34, 215-20). Claimant initially visited an urgent care clinic two days after falling, was diagnosed with back and elbow contusions, was restricted for four days to no bending, twisting, jumping, running, climbing ladders, or prolonged sitting or standing, and was advised to alternate between sitting and standing and to stretch the affected area. (R. 215). On May 21, 2013, Claimant returned to the clinic with no improvement in her pain, exhibited an altered gait, hunched forward torso, and reduced range of motion in her back, and was advised to seek physical therapy. (R. 221-22). Claimant remained symptomatic a week later and was further restricted to no lifting greater than ten pounds. (R. 223-25). On June 10 and 24, 2013, after some physical therapy, Claimant continued to experience pain, her restrictions were continued, and she was directed to obtain orthopedic and spine consultations. (R. 226-33). On July 9, 2013, Claimant was released to return to regular work in relation to her elbow injury (R. 234, 281), but her back pain persisted and she sought further treatment.
On July 18, 2013, Claimant saw Dr. Reeg for a spinal consultation. (R. 267-68). Dr. Reeg noted she had a stable gait and could walk on her heels and toes, but had guarded mobility, pain with palpation of her spine, tenderness in the sacrum and coccyx, self-limited range of motion, and pain with truncal rotation and axial compression. Id. An x-ray of Claimant's lumbar spine was unremarkable, but Dr. Reeg noted a risk of some instability. Id. at 268. Dr. Reeg placed Claimant on light duty and prescribed a circular cushion, pain medicine, and continued physical therapy in hopes that her symptoms would resolve with time. Id. On September 12, 2013, Claimant saw Dr. Reeg in follow-up with no improvement despite completing physical therapy. (R. 270-71). Dr. Reeg noted pain in her upper, middle, and lower back and through the buttocks, but that the doughnut cushion was helpful. (R. 270). Dr. Reeg determined Claimant was at maximum medical improvement and believed she was likely to remain symptomatic for an extended period. Id. Dr. Reeg recommended Claimant for permanent light duty work (i.e., lifting 20 pounds occasionally or ten pounds frequently). (R. 270-71).
On December 20, 2013, Claimant saw Dr. Lestini for a consultation related to her low back pain. (R. 297-301). On examination Dr. Lestini noted some painful and reduced range of motion of the lumbar spine and an antalgic gait. (R. 300). Claimant was given temporary light duty and further imaging studies were ordered. (R. 300-01). Dr. Lestini saw Claimant again on February 19, 2014 to review her MRI reports and images. (R. 294). Dr. Lestini diagnosed multiple levels of lumbar spine degenerative disc disease and indicated that he believed her accident aggravated her preexisting, previously asymptomatic lumbar degenerative discs. (R. 295). Dr. Lestini, noting Claimant was adamant she could not do her regular duty, determined Claimant had reached maximum medical improvement and released her to permanent light duty. Id.
Claimant testified at the administrative hearing that as a result of her injury she experiences constant back pain, difficulty standing or sitting for more than 15-20 minutes, and is unable to bend or stoop. (R. 34-35). Claimant could no longer perform her job providing personal care for the elderly, which involved heavy work such as lifting and moving her clients. (R. 35, 37-38). She can only perform limited household chores, such as making the bed, dusting, and some cooking, and that her husband helps her by mopping, sweeping, and vacuuming. (R. 39-40). She can no longer do yard work and mostly alternates between sitting and watching television or reading and walking in the yard or hallway of her home. (R. 39). Claimant reported to a consultative psychologist that she used to be very active and was a good bowler, but now mostly sits around the house, although she does go to church and occasionally goes places with her husband. (R. 277).
A. The RFC Analysis and the Treating Physicians' Opinions
Claimant contends that the ALJ erred in failing to explain the weight given to the opinions of Claimant's treating physicians, Dr. Reeg and Dr. Lestini, who both determined Claimant was permanently restricted to light-duty work. Pl.'s Mem. [DE-12] at 10-11. Specifically, Claimant asserts that the ALJ gave more weight to the opinion of the state agency consultant, Dr. Ellen Huffman-Zechman, than to the opinions of Dr. Reeg and Dr. Lestini and failed to explain his reasoning in so doing. Id. The Commissioner asserts that the opinions of Dr. Reeg and Dr. Lestini that Claimant is restricted to light-duty work are not entitled to any special significance or controlling weight because they are on an issue reserved to the Commissioner and that their records do not support their findings. Def.'s Mem. [DE-14] at 21-23.
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." S.S.R. 96-8p, 1996 WL 374184, at *7.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 404.1545(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 404.1527(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 404.1527(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 404.1527(c)(2). However, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id.; see Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (stating "[t]he ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence").
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). The weight afforded such opinions must be explained. S.S.R.96-2p, 1996 WL374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may not reject medical evidence for the wrong reason or no reason. See Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006). "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).
Here, the ALJ acknowledged that Claimant was examined by several physicians, including specialists, concerning her back pain; she complained of having constant pain of varying severity throughout the day, aggravated by physical activity and prolonged sitting and standing with no alleviating factors; and physical therapy was ineffective and pain medications were minimally effective. (R. 16). The also ALJ stated that Claimant's x-rays and MRIs revealed "no more than very mild degenerative disc disease" and that her examinations were within normal limits with respect to several factors, but that she had tenderness in the lower lumbar spine and over the tip of the coccyx. Id.
With respect to the opinion evidence, the ALJ noted that Dr. Reeg, who the ALJ acknowledged was a treating physician, and Dr. Lestini both restricted Claimant to permanent light-duty work. Id. The ALJ then stated that observable signs of severe pain, such as weight loss, muscular atrophy, prolonged bed rest, or adverse neurological signs were not present in this case, concluding that Claimant lacked credibility. (R. 16-17). The ALJ adopted the opinion of Dr. Huffman-Zechman, the state agency medical consultant who reviewed Claimant's case at the reconsideration stage, despite the ALJ's recognition that Dr. Huffman-Zechman did not have the benefit of reviewing the medical evidence in its entirety. (R. 17). With respect to Dr. Reeg's and Dr. Lestini's opinions, the ALJ noted their assessments were based on clinical and radiological evidence obtained subsequent to Dr. Huffman-Zechman's assessment, but "[n]onetheless, after reviewing the record in its entirety, the [ALJ] afforded greater weight to Dr. Huffman-Zechman." Id.
The ALJ failed to adequately explain why he discounted the opinions of two treating physicians that Claimant was permanently limited to light-duty work in favor of the determination of a non-examining state agency medical consultant that Claimant could perform a limited range of medium work. The Fourth Circuit Court of Appeals has found that the rejection of a treating physician's opinion without explanation "in favor of the state medical examiners . . . raises red flags because the state medical opinions are issued by non-examining physicians and are typically afforded less weight than those by examining and treating physicians." Radford v. Colvin, 734 F.3d 288, 295-96 (4th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)). Moreover, the Fourth Circuit, in a published opinion, recently remanded a claim due to the ALJ's "perfunctory" rejection of two treating physicians' opinions. See Lewis v. Berryhill, — F.3d —, 2017 WL 2381113, at *7 (4th Cir. 2017) (finding the "ALJ's cursory analysis overlooks [the treating physicians'] consistent medical conclusions about [the claimant's] limited abilities . . . ."). While the Commissioner is correct that "treating source opinions on issues that are reserved to the Commissioner are never entitled to controlling weight or special significance," Ruling 96-5p explains that they must "never be ignored" and "[i]f the case record contains an opinion from a medical source on an issue reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record." S.S.R. 96-5p, 1996 WL 374183, at *2-3 (July 2, 1996). The ALJ's lack of analysis regarding the weight afforded the opinion evidence precludes meaningful review. See Monroe v. Colvin, 826 F.3d 176, 191 (4th Cir. 2016) ("Without more specific explanation of the ALJ's reasons for the differing weights he assigned various medical opinions, neither we nor the district court can undertake meaningful substantial-evidence review.") (citing Radford, 734 F.3d at 295). Accordingly, it is recommended the case be remanded.
Claimant asserts that had she been limited to light work a finding of "disabled" would have been directed under Rule 202.06 of the Medical Vocational Guidelines, 20 C.F.R., pt. 404, subpt. P, app. 2. Pl.'s Mem. [DE-12] at 7. --------
Because the opinion evidence is key in determining Claimant's RFC, the alternative issue raised by Claimant—that she lacks the RFC to perform a reduced range of medium work and cannot perform her past relevant work—is not addressed at this time. It is recommended that the issue receive additional consideration on remand, as necessary, in light of the ALJ's further consideration of the opinion evidence. See Jones v. Astrue, No. 5:11-CV-206-FL, 2012 WL 3580482, at *8 (E.D.N.C. Apr. 19, 2012) ("Because this court finds that remand on the issue of the treating physician's opinion will affect the remaining issues raised by Claimant, it does not address those arguments."), adopted by 2012 WL 3580054 (Aug. 17, 2012).
B. Listing 1.04
Claimant contends the ALJ erred in finding her impairments do not meet or medically equal Listing 1.04 relating to disorders of the spine without adequate explanation. Pl.'s Mem. [DE-12] at 8-10. The Commissioner contends the ALJ correctly concluded that Claimant's impairments do not meet or equal a listing and that Claimant has failed to cite evidence to support such a finding. Def.'s Mem. [DE-14] at 18-21.
To show disability under the listings, a claimant may present evidence either that the impairment meets or is medically equivalent to a listed impairment. See Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986); 20 C.F.R. § 404.1526 (regulations for determining medical equivalence). Disability is conclusively established if a claimant's impairments meet all the criteria of a listing or are medically equivalent to a listing. 20 C.F.R. § 404.1520(d). "The [ALJ] . . . is responsible for deciding . . . whether a listing is met or equaled." S.S.R. 96-6p, 1996 WL 374180, at *3 (July 2, 1996). In order to determine whether a medical impairment equals a listing, the ALJ is bound to "consider all evidence in [claimant's] case record about [the] impairment(s) and its effects on [claimant] that is relevant to this finding. . . . [The ALJ] also consider[s] the opinion given by one or more medical or psychological consultants designated by the Commissioner." 20 C.F.R. § 404.1526(c). "For a claimant to qualify for benefits by showing that his . . . 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, 532 (1990). "A claimant cannot qualify for benefits under the 'equivalence' step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Sullivan, 493 U.S. at 531. "Plaintiffs bear the burden of proving their condition meets a listing and, accordingly, the responsibility of producing evidence to sustain their claims." Rowe v. Astrue, No. 5:07-CV-478-BO, 2008 WL 4772199, at *1 (E.D.N.C. Oct. 28, 2008) (citing Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)). Thus, where a claimant "fails to articulate why her medical impairments do, in fact, meet all of the elements of a given listed impairment," she fails to meet her burden. Id. (citing Sullivan, 493 U.S. at 530).
Listing 1.04 refers generally to disorders of the spine. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. To satisfy Listing 1.04, a claimant must show a disorder of the spine "(e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord" with one of the following:
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);
OR
Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
OR
Id.; see Drotar v. Colvin, No. 7:13-CV-265-FL, 2015 WL 965626, at *5 (E.D.N.C. Mar. 4, 2015) (discussing the criteria to meet or equal Listing 1.04).
Lumbar 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.
Here, despite concluding that Claimant had the severe impairments of degenerative disc disease and disorders of the muscles, the ALJ found that these impairments did not meet or equal a listed impairment without specifically discussing Listing 1.04. (R. 14-15). Rather, the ALJ generally stated that he compared the objective evidence to the listings, Claimant's impairments were insufficient to meet the criteria of any listing, and no physician had opined that Claimant's impairments met or equaled a listing. (R. 15). The ALJ's decision lacks the requisite listing analysis, and as a result the court is unable to determine whether the ALJ's conclusion is supported by substantial evidence.
The Commissioner argues the medical evidence does not support a finding that Claimant's impairments meet Listing 1.04. Def.'s Mem. [DE-14] at 18-21. However, the Fourth Circuit Court of Appeals has repeatedly cautioned courts to "avoid engaging in fact-finding in the first instance and to allow the ALJ to further develop the record [to allow for] a meaningful judicial review . . . ." Brown v. Colvin, 639 F. App'x 921, 923 (4th Cir. Feb. 9, 2016) (internal quotation marks omitted) (citing Radford, 734 F.3d at 296); Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. Dec. 17, 2015) (per curiam) (finding the lower court erred by engaging in analysis of whether claimant's impairments met a listing when the ALJ failed to do so in the first instance, and stating that "circuit precedent makes clear that it is not our role to speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record."). Here, Claimant testified regarding the substantial limiting effects of her back impairment (R. 34-35, 37-41), Dr. Lestini's treatment notes and Claimant's MRI results indicate degeneration of lumbar intervertebral discs, lumbago, lumbar strain, and lumbar stenosis (R. 294-307), and the ALJ found Claimant had the severe impairments of degenerative disc disease and disorders of the muscles (R. 14). The medical evidence of record here is "not so one-sided that one could clearly decide, without analysis, that Listing [1.04] is not implicated." Brown, 639 F. App'x at 923. Thus, Listing 1.04 related to disorders of the spine was relevant, as further evidenced by the fact that it was considered by the state agency consultants at both the initial and reconsideration stages (R. 46, 62), and the ALJ should have specifically addressed this listing.
In a similar case, the court determined an ALJ's failure to expressly consider a relevant listing was error, explaining that when an ALJ determines that a claimant has a severe impairment, the ALJ should identify which listings are relevant and compare the claimant's symptoms to the listing criteria. See Hornal v. Berryhill, No. 7:15-CV-00266-F, 2017 WL 634697, at *3 (E.D.N.C. Feb. 16, 2017) (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986); Radford, 734 F.3d at 295); Drotar, 2015 WL 965626, at *4 ("Failure to address sufficiently a relevant listing is ground for remand."). The Hornal court expressly rejected, as impermissible post-hoc reasoning, the consideration by a court in the first instance of whether the claimant's impairments actually met a specific listing where the ALJ had not himself supplied such reasoning. Id. at *4 ("[A] reviewing court must judge the propriety of [agency] action solely by grounds invoked by the agency," and "[i]f those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it deems a more adequate or proper basis.") (internal quotation marks and citations omitted). As in Hornal, the ALJ's failure here to explain why Claimant's impairments do not meet or equal Listing 1.04 was error and impedes the court's ability to conduct a meaningful substantial evidence review. See Radford, 734 F.3d at 295 (remanding for further explanation by the ALJ of why the claimant did not meet Listing 1.04A because the ALJ's decision regarding the applicability of Listing 1.04A was "devoid of reasoning."). Accordingly, it is recommended that the matter be remanded.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-11] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-13] be DENIED, and the matter be remanded to the Commissioner.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until July 14, 2017 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
SUBMITTED, this the 3rd day of July 2017.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge