Opinion
No. 5:17-CV-598-D
02-01-2019
TRACY H. WINDERS, Plaintiff v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Tracy H. Winders ("Plaintiff") filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"). 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, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #15] be granted, Defendant's Motion for Judgment on the Pleadings [DE #19] be denied, and the matter be remanded to the Commissioner for further consideration.
STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability, DIB, and SSI on August 6, 2014, alleging disability beginning October 2, 2013. (R. 54-55, 68-69, 118.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 84, 99, 114-15, 139.) On August 1, 2016, a hearing was held before Administrative Law Judge Anne-Marie A. Ofori-Acquaah ("ALJ"), who issued an unfavorable ruling on October 24, 2016. (R. 27, 32.) Plaintiff's request for review by the Appeals Council was denied September 29, 2017, making the ALJ's decision the final decision of the Commissioner. (R. 1.) Plaintiff now seeks judicial review of the final administrative decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits 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). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks and citation omitted) (alteration in original). "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, 76 F.3d at 589) (internal quotation marks omitted) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of her past work; and, if not, (5) based on the claimant's age, work experience and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520, 416.920; see also Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 74 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id.
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment from her alleged onset date of October 2, 2013, through the date of the ALJ's decision on October 24, 2016. (R. 19, 27.) Next, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease, chronic pulmonary disease ("COPD"), and vertiginous syndrome. (R. 19.) The ALJ further determined that Plaintiff's mental impairments of affective disorder, anxiety, and depression were non-severe. (R. 19-20.) 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, App. 1. (R. 21.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC"), and found that Plaintiff had the ability
to perform light work (i.e., lift and carry up to 20 pounds occasionally and 10 pounds frequently as well as sit, stand, and/or walk up to six hours each during an eight-hour workday) as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except she could frequently reach overhead, handle and finger with the left upper extremity; she could frequently climb ramps, stairs, ladders, ropes or scaffolds, stoop, kneel, crouch and crawl; she could have no exposure to unprotected heights; and she could have occasional exposure to moving mechanical parts as well as dust, odors, fumes and other pulmonary irritants.(R. 22.) In making this assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms "not entirely consistent with the medical evidence and other evidence in the record." (R. 23.)
At step four, the ALJ concluded Plaintiff was unable to perform any past relevant work. (R. 25.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that other jobs exist in significant numbers in the national and state economies that Plaintiff could perform, including photocopy machine operator, small product assembler, and office helper. (R. 25-26.)
IV. Plaintiff's Contentions
Plaintiff challenges the Commissioner's final decision denying benefits on two grounds. Plaintiff first contends that the ALJ erred by finding that Plaintiff's impairments did not meet Listing 1.04 for spinal disorders. Second, Plaintiff asserts that the ALJ in this case was not constitutionally appointed under the Appointments Clause.
A. Medical Listing 1.04
At step three of the sequential process, the ALJ was required to determine whether Plaintiff's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1. Plaintiff argues that the ALJ failed to sufficiently explain why Plaintiff's impairments did not meet or equal Listing 1.04 for spinal disorders. Plaintiff contends the ALJ "simply listed the criteria of the listing and concluded that it was not met." (Pl.'s Mem. J. Pleadings [DE #16] at 6.)
The burden of proof at step three is on the claimant to show that she meets or equals all the criteria of a listing. Hunter v. Sullivan, 993 F.2d 31 (4th Cir. 1992). "For a claimant to show that his impairment matches a listing, it must meet allof the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). If an impairment does not meet the criteria of a listing, it may nevertheless medically equal the criteria. 20 C.F.R. §§ 404.1525(e)(5), 404.1526(b). To establish medical equivalence, a claimant must "present medical findings equal in severity to allthe criteria" for that listing. Zebley, 493 U.S. at 531. In determining whether a listing met or equaled, the ALJ must "consider all evidence in [claimant's] case record about [the] impairment(s) and its effects on [claimant] that is relevant to this finding." 20 C.F.R. §§ 404.1526(c), 416.926(c).
Where a claimant has a severe impairment and the record contains ample evidence that symptoms related to the impairment "correspond to some or all of the requirements of a listing," it is incumbent upon the ALJ to identify the listing and to compare the claimant's symptoms to each of the listing's requirements. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). While it may not always be necessary for the ALJ to perform a "step-by-step" analysis of the listing's criteria, the ALJ must evaluate the claimant's symptoms in light of the specified medical criteria and explain his rationale. Williams v. Astrue, No. 5:11-CV-409-D, 2012 WL 4321390 (E.D.N.C. Sept. 20, 2012). An ALJ must provide sufficient explanation and analysis to allow meaningful judicial review of 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). Where such evidence exists but is rejected without discussion, "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Id. (citations omitted); see also Brown v. Colvin, 639 F. App'x 921, 923 (4th Cir. 2016) (remanding where the "medical record [was] not so one-sided that one could clearly decide, without analysis, that [the listing in question was] not implicated").
Where the ALJ fails to make the necessary comparison or fails to explain the basis for his decision other than in a summary or conclusory fashion, the court is unable to determine whether the ALJ's decision is supported by substantial evidence. Cook, 783 F.2d at 1173; cf. Johnson v. Astrue, 5:08-CV-515-FL, 2009 WL 3648551, at *2 (E.D.N.C. Nov. 3, 2009) ("Meaningful review may be possible even absent the explicit step-by-step analysis set out in Cook where the ALJ discusses in detail the evidence presented and adequately explains his consideration thereof.").
Listing 1.04, which addresses "[d]isorders 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," requires:
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);
or
B. 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 two hours;20 C.F.R. Part 404, Subpart P, App. 1, § 1.04.
or
C. 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.
An ALJ is required to identify and discuss a listing if there is "ample evidence in the record" to support a finding that the impairment meets or is medically equivalent to one of the listed impairments. Kelly v. Astrue, No. 5:08-CV-289-FL, 2009 WL 1346241, at *5 (E.D.N.C. May 12, 2009) (citation omitted). Here, in determining that Plaintiff's degenerative disc disease failed to meet the requirements of Listing 1.04, the ALJ did not include any analysis as to how the listing requirements were not met in this case. The ALJ stated that "the record does not demonstrate compromise of a nerve root . . . or the spinal cord with additional findings of," then proceeded to list the requirements of paragraphs A, B, and C of Listing 1.04. (R. 21.) The ALJ also concluded that in considering Acquiescence Ruling 15-1-(4), "the medical evidence of record does not indicate that all of the medical criteria in paragraph A of listing 1.04 were present within a continuous 12-month period (or are expected to be present)." (Id.)
Defendant argues that "Plaintiff has not met her burden of showing that she meets all of the elements of listing 1.04A." (Def.'s Mem. J. Pleadings [DE #20] at 6.) Defendant cites treatments notes in which Plaintiff was noted to exhibit normal strength, full and painless range of motion in her shoulders, and intermittent neck and arm pain. (Def.'s Mem. J. Pleadings at 7-9; R. 363, 391, 416, 443.) Plaintiff contends that the record shows her decreased motor strength, spinal cord compression, reduced range of motion in the cervical spine, radicular left arm pain, and degenerative changes. (Pl.'s Mem. J. Pleadings at 5-6; R. 36-38.)
In this case, Plaintiff's symptoms appear to correspond to some or all of the requirements of Listing 1.04A. The medical evidence of record establishes Plaintiff's degenerative disc disease of her cervical spine and a "large left paracentral and central disk herniation at C5-C6 with thecal sac and mild spinal cord compression." (R. 286, 292, 326, 347, 367, 395, 412, 414.) A radiology report from October 2013 found "small osteophytes consistent with minimal degenerative disc disease and spondylosis" of the lower cervical spine. (R. 326.) Plaintiff's MRI results in November 2013 evidence "multilevel degenerative changes" and "large disc protrusion . . . associated with moderate narrowing the spinal canal and mild displacement of the cord." (R. 324-25.) Plaintiff underwent fusion surgery on her cervical spine on March 7, 2014, which relieved some pain at first, but appears to have not been fully successful, with Plaintiff later requiring cervical epidural steroid injections. (R. 346-47, 409-411, 413.)
There are references throughout the record indicating chronic arm pain and motor loss where Plaintiff showed "weakness of her EPL and MCP extension on the left graded at 4/5 as well as her shoulder external rotation which is graded at 4/5." (R. 285, 293, 366, 367, 391, 415, 417.) Post-surgery and after receiving three epidural steroid injections, Plaintiff continued to complain of pain on average of 8 out of 10 with "interscapular pain, pain in the trapezius and into her shoulders bilaterally." (R. 413.) In September 2014, Plaintiff exhibited a reduced range of motion of the cervical spine and radiculopathy of her left arm. (R. 389-91.) As Plaintiff's impairment does not involve her lower back, Listing 1.04A does not require a positive straight-leg raising test. 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A.
Muscle strength is assessed on a scale of 0 to 5. 0 is no visible muscle contraction; 1 is trace movement; 2 is movement with the aid of gravity; 3 is movement against gravity, but not resistance; 4 is movement against resistance supplied by the examiner; and 5 is normal strength. MERCK SHARP & DOHME CORP., THE MERCK MANUAL OF DIAGNOSIS AND THERAPY 1590 (19th ed. 2011).
It is also unclear whether the ALJ properly applied Listing 1.04. As the Fourth Circuit clarified in Radford, Listing 1.04 requires that a claimant 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." Radford, 734 F.3d at 294.
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 [her] condition. Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity . . . . "[A]bnormal physical findings may be intermittent," but a claimant may nonetheless provide a chronic condition by showing that [she] experienced the symptoms "over a period of time," as evidenced by "a record of ongoing management and evaluation."Radford, 734 F.3d at 294 (citations omitted). Here, the ALJ stated that she "considered Acquiescence Ruling 15-1(4) and determined that the medical evidence of record does not indicate that all of the medical criteria in paragraph A of listing 1.04 were present within a continuous 12-month period (or are expected to be present)." (R. 21.) As she provided no further explanation as to this determination, the court is unable to determine whether she applied Listing 1.04 in a manner that required evidence demonstrating the presence of all paragraph A criteria for a continuous twelve-month period contrary to Radford.
Given that Plaintiff has presented "a fair amount of evidence" that she meets Listing 1.04A, the ALJ's failure to adequately explain her reasoning precludes the court from undertaking a "meaningful review" of her step-three determination. See Radford, 734 F.3d at 296. As the Fourth Circuit reiterated in Fox v. Colvin, 632 F. App'x 750 (4th Cir. 2015), an adequate explanation under these circumstances involves the "specific application of the pertinent legal requirements to the record evidence." Fox, 632 F. App'x at 755 (quoting Radford, 734 F.3d at 295). An ALJ's bare statement that he considered a particular listing is "perfunctory and offer[s] nothing to reveal why he was making his decision." Id.
In the present case, the ALJ's inclusion of the elements of Listing 1.04 at step three lends nothing to remedy her failure to apply these elements to the record evidence. Because the ALJ failed to discuss Listing 1.04 pertaining to Plaintiff's degenerative disc disease, "it is simply impossible to tell whether there was substantial evidence to support the [ALJ's] determination." Cook, 783 F.2d at 1173. Radford instructs that where, as here, there is conflicting evidence in the record as to whether the claimant satisfies a listing but insufficient analysis or explanation of the issue by the ALJ, remand offers the best course of action. Radford, 734 F.3d at 296.
B. ALJ's Appointment
Plaintiff also argues that Social Security ALJs are subject to the Appointments Clause of the United States Constitution and that the ALJ in this case was not properly appointed. See Lucia v. Secs. & Exch. Comm'n, 138 S. Ct. 2044 (2018) (holding that administrative law judges of the Securities and Exchange Commission are "Officers of the United States," within meaning of Appointments Clause). The Commissioner contends that Plaintiff has waived her right to raise this issue by failing to timely challenge the ALJ's appointment during the administrative proceedings.
In light of the recommendation that the case be remanded for further consideration of the listings, the court need not determine whether the Commissioner's decision is void due to an unconstitutional appointment of the ALJ. Accordingly, the undersigned offers no opinion as to this issue.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #15] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #19] be DENIED, and the case be REMANDED to the Commissioner for further consideration.
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 February 15, 2019, 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)(l); 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.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 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, a party's failure to file written objections by the foregoing deadline may 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).
This 1st day of February 2019.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge