CLIFTON L. CORKER, Magistrate Judge.
This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. Plaintiff's applications for Supplemental Security Income and Disability Insurance Benefits were administratively denied following an administrative hearing before an Administrative Law Judge ["ALJ"]. This is an action for judicial review of that final decision. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc.19] while the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 21]. Plaintiff has filed a response to the defendant's motion [Doc. 23].
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Listenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
The applicable administrative regulations require the Commissioner to utilize a five-step sequential evaluation process for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4). A claimant bears the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
Plaintiff is a younger individual for Social Security purposes. She has a high school education. There is no dispute that she cannot return to her heavy past relevant work as a certified nursing assistant in a nursing home.
Plaintiff's medical history is recounted in the Commissioner's brief as follows:
[Doc. 22, pgs. 3-6]. The Court did not include the defendant's synopsis of the evidence regarding the plaintiff's mental impairment because the plaintiff has raised no issue in this judicial review regarding the ALJ's findings in that respect.
As noted by the plaintiff in her brief, the examination of Dr. Varva mentioned above noted a positive left leg raise (Tr. 566). Also, the Court notes that Dr. Brasfield opined that the February 15, 2008 MRI showed "a left L5 disc herniation that is both contacting and displacing the left S1 nerve root, consistent with the patient's radicular pain." (Tr. 608). Dr. Brasfield's report was not before the ALJ, but was presented initially to the Appeals Council.
With regard to straight-leg raising, the Court notes that the Commissioner, in the above description of Dr. Filka's consultative examination, did not specifically mention Dr. Filka's finding that the plaintiff had negative straight leg raising (Tr. 459).
Also not described in the summary of the medical evidence is the evaluation of June 18, 2014 by Tri-State Mountain Neurological Associates. As was the case with Dr. Brasfield's report, this was initially presented to the Appeals Council. This one-page office note states that the plaintiff "presented for evaluation of dizziness." (Tr. 615). She also complained of "difficulty with ambulation due to significant low back pain and left leg discomfort." The note goes on to state that "[a]pparently, she is applying for disability and her attorney reportedly informed her that she needs to have a nerve test and a straight leg test. She had an MRI of her low back scheduled recently, but he instructed her to cancel this as he apparently felt that this study would not be beneficial for her disability case." (Tr. 615). The examination itself revealed full strength throughout the proximal and distal upper and right lower extremities with "faint weakness in the left lower extremity, with a prominent give-way component (back pain)." (Tr. 615). Light touch was intact. Her gait was antalgic, but not ataxic. Also, it was noted she had a positive straight leg test on the left. The doctor "also suggested that she have a repeat MRI of the lumbar spine." (Tr. 615). He stated that "[m]y concern is appropriately evaluating her condition, rather than getting her approved for disability." (Tr. 615). The treatment note closed stating that the plaintiff could call with questions or concerns, and that "otherwise she will follow up in 3 months." (Tr. 615).
The ALJ conducted an administrative hearing with regard to the plaintiff's claims on May 14, 2014. At the commencement of the hearing, Plaintiff's counsel advised the Court that her position was that she met Listing 1.04(A) of the Listings of Impairments (Tr. 32), therefore indicating that she should thus be found disabled at Step Three of the sequential evaluation process set forth above. The testimony of plaintiff and her witnesses is summarized in the plaintiff's brief as follows:
Mike Wilson, the claimant's boyfriend with whom she had resided for 7 years, testified on the claimant's behalf. He indicated he had known the claimant since she was 12 years old. (TR 53) Mr. Wilson and the claimant had just began dating about a week before she injured her back in 2006. He testified that the claimant attempted to work at the Skate Inn he ran and lasted approximately 10 days and simply couldn't handle the concessions. (TR 54) He testified that the claimant's mother and her son help her out with the house and he helped her out but his job kept him gone a lot. (TR 54) He testified that she appears to hurt no matter what she does. She can't vacuum, dust, reach, or bend without hurting. (TR 54) He explained that when he comes home from work she is laying on the couch and trying to get her back pain to ease off. (TR 55) She doesn't cook much and he has to buy take home meals most of the time. (TR 55) He has observed her favoring her right side most of the time. She lays over on her right side to ease the pain on her left side. (TR 57).
[Doc. 20, pgs. 7-9].
At the hearing, the ALJ took the testimony of Dr. Robert S. Spangler, a vocational expert ["VE"]. Dr. Spangler was asked to assume a person who "could do light work with occasional posturals, no ropes; ladders; scaffolds; overhead reaching; occasional bilaterally; avoid concentrated exposure to hazards; and concentrated exposure to vibrations; limited to simple; unskilled work; occasional contact coworkers; supervisors; and the public." (Tr. 59). Dr. Spangler identified a substantial number of jobs in the regional and national economies which such a person could perform (Tr. 59).
On June 18, 2014, the ALJ filed his hearing decision. After explaining the sequential evaluation process used to determine disability, he found that the plaintiff was not engaged in substantial gainful activity (Tr. 13). He then found she had severe impairments of degenerative disc disease, osteoarthritis, obesity, a major depressive disorder and a history of substance abuse (Tr. 14).
In the next step of the sequential evaluation process, he found that the plaintiff did not have any impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (Tr. 14). This will be discussed in detail below.
Before proceeding to Step Four, the ALJ found that the plaintiff had the residual functional capacity ["RFC"] described above in his hearing questioning of Dr. Spangler. In this regard, he discussed the medical evidence. In particular, he mentioned in detail the report of Dr. Lorio, the examination results of Dr. Filka, and plaintiff's consultative psychological examination, all as set out in the medical history summary described above (Tr. 16-20). Based upon the VE's testimony, he then, at Step Five, found that a significant number of jobs existed in the national economy (Tr. 20-21). Accordingly, he found that the plaintiff was not disabled (Tr. 21).
Plaintiff asserts that "[t]he ALJ erred in failing to consider Listing 1.04(A) in determining the claimant's eligibility for benefits or in the alternative, new and material evidence supports the contention that the claimant met and continues to meet Listing 1.04(A), found at 20 CFR Ch. III, Pt. 404, Supt. P, App. 1. [Doc. 20, pg. 2]. This is, as plaintiff further asserted, "the sole issue raised in this case. . . ." [Doc. 23, pg. 1]. To paraphrase, plaintiff maintains that the ALJ should have found, based on the evidence before him, that the plaintiff was disabled at Step Three of the sequential evaluation process because she met Listing 1.04(A), and that, in any event, she should have been found disabled on that same ground based upon evidence submitted to the Appeals Council. The evidence submitted in the first instance to the Appeals Council consisted of Dr. Brasfield's August 25, 2009 evaluation (Tr. 607-609), and the June 18, 2014 treatment note of Tri-State Mountain Neurology (Tr. 615), both of which are described in detail in the recitation of the medical evidence set out above.
The listings set out under section 1.00 of the regulations deal with disorders of the musculoskeletal system. In order to be found disabled at Step Three based upon any listing, a plaintiff "must first present medical findings that satisfy each criterion of the particular listing." Lee v. Commissioner of Soc. Sec., 529 Fed. Appx. 706, 710 (6th Cir. 2013), citing 20 CFR, § 404.25(d). Also, "[f]or a claimant to show that his impairment matches a listing, it must meet all of 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, 110 S.Ct. 885, 891, 107 L. Ed. 2d 967 (1990). Furthermore "[b]ecause satisfying the listings yields an automatic determination of disability . . . the evidentiary standards [at Step Three] . . . are more strenuous than for claims that proceed through the entire five-step evaluation." Peterson v. Comm'r of Soc. Sec., 552 Fed. Appx. 533, 539 (6th Cir. 2014). Also, Section 1.00(D), applicable to all musculoskeletal listings, requires that physical examinations be very specific.
Thus, consistent clinical observation over time is required as to each component necessary to meet a particular listing.
Id. Plaintiff asserts first that the ALJ, and later the Appeals Council, failed to address Listing 1.04(A). In this regard, the ALJ stated that he "has considered the claimant's degenerative disc disease and osteoarthritis (Listing 1.00) but concludes that the claimant's conditions do not satisfy the severity requirements of the listed impairments, as she does not have the required deficits." (Tr. 14). At the commencement of the administrative hearing, plaintiff's counsel prefaced the presentation of the case with the underlying assertion that the plaintiff met the requirements of Listing 1.04(A). The Court does not agree that the ALJ's statement that plaintiff failed to meet any musculoskeletal listing, which would, of course, include Listing 1.04(A), is error in and of itself. Undoubtedly, the ALJ is required to discuss the evidence which would support a conclusion that a claimant does not meet a listed impairment. However, that discussion does not have to take place in its entirety in the portion of the opinion where the Step Three finding is announced. See Staggs v. Astrue, 2011 WL 3444014, (M.D. Tenn. 2006), citing Bledsoe v. Barnhart, 165 Fed. App'x 408, 411 (6th Cir. 2006). The Court in Staggs stated that
Id. at *3.
The plaintiff points out that the ALJ emphasized the fact that Dr. Loria found that one of the plaintiff's MRIs "suggested a significant posterior displacement of the left S1 nerve root sheath and
It is true that Dr. Varva, Dr. Brasfield, and Tri-State Mountain Neurological Associates observed positive straight leg raising to some degree. However, the listing requires a positive straight leg raising test in both the sitting and supine positions. There is no evidence that she had positive straight leg raising in both required positions. See Plaghe v. Comm'r of Soc. Sec., No. 15-11920, 2016 WL 1714733, at *14 (E.D. Mich. Apr. 28, 2016) (collecting cases establishing that a "[l]ack of evidence that the straight-leg test was positive in both the sitting and supine position is itself sufficient to preclude a claimant from meeting Listing 1.04A").
However, even assuming that she did have positive straight leg raising in both positions during these examinations, there exists the consultative exam of Dr. Filka. She observed that the plaintiff had "negative sacral notch tenderness and negative straight leg raising." (Tr. 459). Dr. Filka also observed that the plaintiff had 5/5 strength in both upper and lower extremities with no atrophy. She noted a normal gait, and no difficulty in making postural changes from sitting to laying, laying to sitting, sitting to standing, and bending. Also, Dr. Filka observed that "[f]orward flexion of lumbar spine is 90 degrees with normal extension, lateral bending, and rotation." (Tr. 459). All of these clinical observations contradict the assertion that plaintiff meets Listing 1.04(A).
Thus, the Court finds that there is clearly substantial evidence supporting the ALJ's and Appeals Council's ultimate conclusion that the plaintiff did not have the required limitation of motion of the spine, motor loss or positive straight leg raising required by this listing. While there is evidence in the reports submitted by the plaintiff that she met at least some of the criteria of the listing, the ALJ is the trier of fact. If substantial evidence supports his finding that the plaintiff did not meet all of the requirements of a listing, then he must be affirmed. Listenbee, 846 F.2d at 349; Zebley, 493 U.S. at 530.
In any event, there is also considerable evidence, as stated by the ALJ, that the plaintiff can sit, stand, walk and move about in a satisfactory manner (Tr. 19). The medical evidence simply does not appear to support a finding that her severe back impairment approaches listing-level severity.
There is no argument raised regarding the ALJ's RFC finding, other than that it should not have been reached, or that the jobs identified by the VE do not constitute a substantial number of jobs which could be performed by a person possessing that RFC. Since substantial evidence supports the ALJ's determination that the plaintiff does not meet any of the musculoskeletal listings, it is respectfully recommended that the plaintiff's Motion for Judgment on the Pleadings [Doc. 19] be DENIED, and that the defendant Commissioner's Motion for Summary Judgment [Doc. 21] be GRANTED.
