ROBERT T. NUMBERS, II, Magistrate Judge.
Plaintiff Tasha Stokes instituted this action on February 27, 2017, to challenge the denial of her application for social security income. Stokes claims that the Administrative Law Judge ("ALJ") Todd D. Jacobson erred in finding that her impairments did not meet or equal the criteria under the Listing of Impairments. Both Stokes and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 17, 21.
After reviewing the parties' arguments, the court has determined that ALJ Jacobson reached the appropriate decision. ALJ Jacobson properly concluded that the evidence does not support a finding that Stokes's impairments meet or equal the criteria of Listing 1.04 because the evidence fails to demonstrate any nerve root compression. Therefore, the undersigned magistrate judge recommends that the court deny Stokes's motion, grant Berryhill's motion, and affirm the Commissioner's decision.
On May 7, 2013, Stokes protectively filed applications for disability benefits and supplemental security income. In both applications, Stokes alleged a disability that began on August 15, 2009. After her claims were denied at the initial level and upon reconsideration, Stokes appeared before ALJ Jacobson for a hearing to determine whether she was entitled to benefits. ALJ Jacobson determined Stokes was not entitled to benefits because she was not disabled. Tr. at 26-35.
ALJ Jacobson found that Stokes had multiple severe impairments: lumbar degenerative disc disease, status post fusion, and left foot drop. Tr. at 28. ALJ Jacobson found that Stokes's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 29.
ALJ Jacobson then determined that Stokes had the RFC to perform a range of sedentary work with additional limitations. Id. She requires a sit/stand option in one hour intervals. Id. She must use a cane. Id. Stokes can never climb ladders but she can occasionally balance, stoop, crouch, kneel, crawl, and climb stairs. Id. She cannot have concentrated exposure to hazards such as moving machinery or unprotected heights. Id. Finally, Stokes is limited to unskilled work. Id.
ALJ Jacobson concluded that Stokes was incapable of performing her past relevant work as a dental assistant. Tr. at 33. But ALJ Jacobson determined that, considering Stokes's age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that she was capable of performing. Tr. at 33-34. These include: charge account clerk, printed circuit board inspector, and order clerk. Id. Thus, ALJ Jacobson found that Stokes was not disabled. Tr. at 35.
After unsuccessfully seeking review by the Appeals Council, Stokes commenced this action in February 2017. D.E. 5.
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In 2009, Stokes fell and injured her back. Tr. at 30. She underwent L4-S1 fusion surgery with hardware placement in May 2010. Tr. at 293. An August 2010 MRI of her lumbar spine showed significant flattening of the thecal sac from spondylosis and broad disc protrusion. Tr. at 400. The imaging study also showed neural foraminal stenosis upon the bilateral exiting L5 nerve root, greater in the right than in the left. Id.
Five months later, Stokes went to OrthoCarolina complaining of persistent lower back pain and right foot weakness. Tr. at 333. An examination showed limited flexation in the lumbar spine and a positive straight leg raise on the right. Id. Richard Richardson, PA-C, assessed right foot drop and right lumbar radiculopathy with muscle weakness. Tr. at 334.
Stokes returned to OrthoCarolina in February 2011 again reporting persistent lower back pain and left leg weakness. Tr. at 382. Prolonged standing, walking, and forward bending all exacerbated her pain. Id. An examination showed reduced hip flexation strength and reduced range of motion in the spine. Tr. at 383. The following month, Dr. Sam Bhagia performed an EMG which revealed chronic lumbar radiculopathy in the left lower limb, most likely affecting the nerve roots at L4, L5, and S1, with evidence of ongoing axonotmesis injury to the L5 nerve root. Tr. at 379. An examination showed left foot weakness that was consistent with chronic changes affecting the nerve roots from L4-S1. Tr. at 370.
Three months later, Stokes returned to OrthoCarolina with reports of numbness and weakness around the left lower limb. Tr. at 368. Providers noted she walked with a limp. Id. An examination showed reduced strength in the left foot with decreased sensation in the lower left leg. Id.
Dr. Earl Epps performed a consultative examination later that month. Tr. at 461-66. Stokes claimed weakened and numbness in her lower left extremity, and Dr. Epps observed that she walked with a cane. Id. Upon examination, Stokes demonstrated 90 degree flexation of the left knee, full strength of the right lower extremity, and reduced strength in the left lower extremity with a left foot drop. Id. Dr. Epps also noted muscle atrophy on the lower left and a steppage gait. Id.
In July 2013, Dr. Richard Rachima with Pineville Primary wrote Stokes a prescription for a cane. Tr. at 474.
One month later, Stokes visited Total Spine Specialist for her worsening sciatic pain following surgery. Tr. at 483. An examination found diminished sensation in the region of L4-S1 as well as right foot numbness. Id. She also demonstrated reduced flexation and range of motion in the lumbar spine and left foot weakness. Id.
In September, Stokes returned to Total Spine Specialists where Dr. Anthony Kwon examined her. Tr. at 481. She had full range of motion in her lower extremities, one out of five strength in her left foot, and moderate paraspinal tenderness in her lower lumbar spine. Id. Dr. Kwon assessed a failed fusion with broken rods as well as a flat back and sagittal imbalance of the lumbar spine. Id. Although Dr. Kwon believed surgery would be necessary to treat Stokes's condition, she did not want to have surgery. Id. He also remarked that her foot drop was permanent and would not improve. Id.
In February 2014, Dr. Rachima opined that Stokes could rarely lift or carry more than ten pounds, could not sit or stand for more than two hours, would need to shift positions, and required unscheduled breaks. Tr. at 494. Stokes retuned to Total Spine Specialists eleven months later for her back pain and foot drop. Tr. at 538. An examination showed normal findings in her lumbar spine although imaging studies revealed broken hardware at L4-S1. Tr. at 540. The impressions included degenerative disc disease of the lumbar region, postlaminectomy syndrome, and foot drop. Id. A CT scan of the lumbar spine one week later showed grade I anterolisthesis of L5 on S1 and surgical changes with posterior hardware and fusion, but no acute findings. Tr. at 544.
In March 2015, Dr. Kwon offered his opinion on Stokes's functional abilities. Tr. at 547-48. He concluded that she could sit for four hours and stand for less than two hours in an eight-hour workday and required a sit/stand option. Id. He further determined that she could walk the equivalent of one city block, required use of a cane, could occasionally lift less than ten pounds, and would need five or six unscheduled breaks every day, each lasting 15 minutes. Id.
Stokes contends that ALJ Jacobson erred by finding that her impairments did not meet or medically equal the requirements of Listing 1.04. The Commissioner maintains that the evidentiary record supports the ALJ Jacobson's finding. The court concludes that ALJ Jacobson properly found that Stokes's impairments did not satisfy the requisite criteria of the Listing because the evidence does not establish that her spinal condition caused a compromise of the spinal cord or a nerve root.
The Listing of Impairments details impairments that are "severe enough to prevent an individual from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). "The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just `substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants "whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background").
The claimant has the burden of demonstrating that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, is insufficient to establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D.N.C. Dec. 10, 2010) ("Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.").
An ALJ is not required to explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must provide a coherent basis for 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, the "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In reviewing the ALJ's analysis, it is possible that even "[a] cursory explanation" at step three may prove "satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion." Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (citing Smith v. Astrue, 457 F. App'x 326, 328 (4th Cir. 2011)). Nevertheless, the ALJ's decision must include "a sufficient discussion of the evidence and explanation of its reasoning such that meaningful judicial review is possible." Id.
ALJ Jacobson found that Stokes's impairments did not meet or medically equal a listing in Section 1.00 (Musculoskeletal System). Tr. at 29. Stokes contends that ALJ Jacobson erred by not finding that her impairments met or medically equaled Listing 1.04 (disorders of the spine). Under this Listing, a claimant first must show a disorder of the spine, such as a "herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [and/or] vertebral fracture . . . resulting in compromise of a nerve root (including the cauda equina) or the spinal cord." 20 C.F.R., Part 404, Subpt. P, Appx. 1, § 1.04. The claimant must then satisfy any one of three categories of certain distinguishing characteristics labeled A through C:
Id. An "inability to ambulate effectively" requires "the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." Id. § 1.00B(2)(b).
ALJ Jacobson stated that Stokes did not meet the criteria of Listing 1.04 because her spine disorder "did not cause compromise of a nerve root or of the spinal cord." Tr. at 29. Although lacking further detail regarding the presence, or absence, of the additional medical evidence required under Listing 1.04, ALJ Jacobson thoroughly analyzed Stokes's medical record. Tr. at 29-32. As will be explained, substantial evidence supports his conclusion that Stokes did not meet or medically equal Listing 1.04. See Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) ("A cursory explanation in step three is satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion.").
Stokes argues that she meets the requirements of 1.04A. In support of her argument, Stokes points out that an August 2010 MRI noted significant flattening which severely effaces the thecal sac of the spinal cord at L5-S1 with pressure upon the exiting nerve root. Tr. at 460. Additionally, a March 2011 electromyogram revealed severe, chronic lumbar radicuploathy most likely affecting the L4, L5, and S1 nerve roots with evidence of ongoing axonotmesis injury to the L5 nerve root. Tr. at 379. Dr. Laxar observed that Stokes suffered from chronic changes affecting the L4, L5, and S1 nerve roots. Tr. at 370.
Stokes also points out that the record contains the following evidence: neuroanatomical distribution of pain from her lower back through her legs, limited range of motion in her spine, motor loss so severe that she suffered from foot drop, sensory deficiencies and reflex loss, and a positive straight leg raise.
But the evidence fails to support a finding that Stokes meets all the criteria to satisfy Listing 1.04A. She contends that ALJ Jacobson noted Stokes's spine condition but observed that the imaging studies subsequent to her surgery failed to demonstrate the presence of Listing 1.04A criteria. And the Commissioner takes the position that the August 2010 MRI and March 2011 electromyogram findings are speculative and fail to conclusively demonstrate the presence of nerve root compression. The undersigned agrees. While the testing showed flattening with pressure upon the exiting nerve root, lumbar radicuploathy most likely affecting the nerve roots, evidence of ongoing axonotmesis injury to the L5 nerve root, and one provider found chronic changes affecting the nerve roots, the record does not state that these conditions have resulted in nerve root compression. Accordingly, the objective evidence demonstrates that Stokes's conditions involve nerve roots but fails to conclude that nerve root compression has resulted.
Moreover, even if Stokes could demonstrate the first three elements of 1.04A, the evidence does not establish that she had both sitting and supine positive straight leg raises. Stokes notes that there is at least one treatment note indicating she had a positive straight leg raise but the record does not indicate positive results for both sitting and supine position testing. Tr. at 33. It only indicates that the straight leg test was positive on the right and negative on the left. Id.
Listing 1.04A requires positive testing from both the seated and supine positions. See Harris v. Colvin, No. 3:14-cv-90, 2015 WL 1259403, at *15 (E.D. Va. Mar. 18, 2015); Page v. Astrue, No. 1:12-cv-3367-WSD, 2014 WL 988825, at *12 (N.D. Ga. Mar. 12, 2014); Nieves v. Astrue, No. EP-12-cv-CV-069-RFC, 2013 WL 1192014, at *7 (W.D. Tex. Mar. 21, 2013). The introductory paragraph to Section 1.00 explains, "[a]lternative testing methods should be used to verify the abnormal findings; e.g. a seated straight-leg raising test in addition to a supine straight-leg raising test." 20 C.F.R., Part 404, Subpart P, Appendix 1, § 1.00D.
Having failed to satisfy all the criteria of Listing 1.04A, the court concludes that ALJ Jacobson did not err in finding that Stokes's impairments were not disabling under this Listing. For this reason, her argument lacks merit and should be rejected,
For the forgoing reasons, the court recommends denying Stokes's Motion for Judgment on the Pleadings (D.E. 17), granting Berryhill's Motion for Judgment on the Pleadings (D.E. 21), and affirming the Commissioner's decision.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party 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.
