Opinion
4:18-CV-62-D
07-03-2019
RICHARD W. BECK, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Richard W. Beck ("plaintiff" or, in context, "the claimant") challenges the final decision on behalf of defendant Commissioner of Social Security ("Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB") on the grounds that he is not disabled. The case is before the court on the respective parties' motions for judgment on the pleadings. D.E. 36, 38. Each party filed a memorandum in support of its motion. D.E. 37, 39. The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See D.E. 40; 13 Dec. 2018 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded for further proceedings.
I. BACKGROUND
A. Case History
Plaintiff filed an application for DIB on 17 October 2013, alleging a disability onset date of 16 December 2012. Transcript of Proceedings ("Tr.") 10. The application was denied initially and upon reconsideration, and plaintiff timely requested a hearing before an administrative law judge ("ALJ"). Tr. 10. On 16 June 2015, a video hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 10; 43-64. The ALJ issued a decision denying plaintiff's claims on 3 August 2015. Tr. 86-98.
Plaintiff timely requested review by the Appeals Council. See Tr. 10. On 10 January 2017, it granted review, vacated the ALJ's decision, and remanded the case for further proceedings with instructions. Tr. 10; 105-07. The Appeals Council stated:
• The residual functional capacity [i.e., residual functional capacity] in the hearing decision does not sufficiently address all the claimant's severe impairments. The decision lists left rotator cuff tear as a severe impairment. The medical records also have several notes regarding range of motion limitation, weakness, tingling, loss of strength and loss of hand grip strength in the left upper extremity (Exhibits 2F, 3F, 5F, 6F, 9F, 11F, 12F, 14F, 15F). However, no related manipulative limitations are included in the [RFC]. Further evaluation of the limitations related to the claimant's left upper extremity are warranted.Tr. 105.
. . . .
• Give further consideration to the claimant's maximum [RFC] and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations . . . .
• Further evaluate the claimant's alleged symptoms and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms . . . .
• If warranted, obtain supplemental evidence from a vocational expert to determine whether the claimant has acquired any skills that are transferable to other occupations . . . .
Pursuant to the remand, an ALJ different from the ALJ who issued the 2015 decision held a video hearing on 24 May 2017, at which plaintiff and the same vocational expert at the 2015 hearing testified. Tr. 10; 35-42. The ALJ issued a decision denying plaintiff's claims on 23 August 2017. Tr. 10-23.
Plaintiff timely requested review by the Appeals Council, and on 30 January 2018, it denied the request for review. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 2 April 2018, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 5); Compl. (D.E. 6).
B. Standards for Disability
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step. If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's RFC, which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.
See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to SSI. The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.
See also 20 C.F.R. § 404.1545(a)(2).
See also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(2); 404.929.
C. The ALJ's Findings
Plaintiff was 51 years old on the alleged onset date of disability; 52 on the date last insured, which the ALJ found to be 30 June 2013 (Tr. 13 ¶ 1); and 55 on the date of the 2017 hearing. See Tr. 21 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 21 ¶ 8) and past relevant work as a farm worker, wire winder, and house restorer (Tr. 21 ¶ 6).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity from his alleged onset of disability through the date last insured. Tr. 13 ¶ 2. At step two, the ALJ found that through the date last insured plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: degenerative disc disease and a torn rotator cuff. Tr. 13 ¶ 3. At step three, the ALJ found that plaintiff's impairments did not meet or medically equal any of the Listings. Tr. 16 ¶ 4.
The ALJ next determined that through the date last insured plaintiff had the RFC to perform a limited range of light work:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) with additional limitations. Specifically, the claimant could occasionally climb ramp[s], stairs, ladders, ropes, or scaffolds. He could occasionally balance, stoop, kneel, crouch, and crawl. He could have occasional exposure to unprotected heights and unguarded machinery. Finally, the claimant could use the nondominant left upper extremity only as a helper.Tr. 17 ¶ 5.
Under this regulation, "light work" is defined as work as work that "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "L-Light Work," 1991 WL 688702. The terms for exertional level as used in the Regulations have the same meaning as in the DOT. 20 C.F.R. §404.1567.
Based on her determination of plaintiff's RFC, the ALJ found at step four that through the date last insured plaintiff was not capable of performing his past relevant work. Tr. 21 ¶ 6. At step five, the ALJ accepted the testimony of the vocational expert and found that through the date last insured there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of cashier, photocopy machine operator, and furniture rental consultant. Tr. 21-22 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 16 December 2012, through the date last insured, 30 June 2013. Tr. 22 ¶ 11.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Perales, 402 U.S. at 401.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); Radford, 734 F.3d at 295-96.
III. ANALYSIS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded him or, in the alternative, the case be remanded for a new hearing on the grounds that the ALJ erred by not finding that plaintiff's spinal condition met Listing 1.04A. The court agrees that the ALJ erred in her handling of Listing 1.04A.
Although plaintiff in his memorandum argues for remand on the additional ground that at the time the ALJ issued his decision the ALJ's appointment did not comply with the appointments clause of the Constitution in violation of Lucia v. Sec. & Exch. Comm'n, 138 S. Ct. 2044 (2018), he subsequently filed a notice (D.E. 41), to which the Commissioner does not object, waiving that argument.
The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. § 404.1525(a). Therefore, if a claimant's impairments meet a listing, that fact alone establishes that the claimant is disabled. Id. § 404.1520(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Soc. Sec. R. 83-19, 1983 WL 31248, at *2 (1983). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Even if an impairment does not meet the listing criteria, it can still be deemed to satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. § 404.1525(c)(5). To establish such medical equivalence, a claimant must present medical findings equal in severity to all the criteria for that listing. Sullivan, 493 U.S. at 531; 20 C.F.R. § 404.1526(a) (medical findings must be at least equal in severity and duration to the listed criteria). "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.
The listing at issue here, Listing 1.04A, requires a spinal disorder with evidence of nerve root compression having specified characteristics. The listing reads:
1.04 [1] Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in [2] compromise of a nerve root (including the cauda equina) or the spinal cord. With:Listing 1.04A.
A. [3] Evidence of nerve root compression characterized by [5] neuro-anatomic distribution of pain, [6] limitation of motion of the spine, [7] motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, [8] if there is involvement of the lower back, positive straight-leg raising test (sitting and supine) . . . .
In Radford, the Fourth Circuit rejected the contention of the Social Security Administration ("SSA") that Listing 1.04A required that all the requisite symptoms be present simultaneously or in close proximity:
We hold that Listing 1.04A requires a claimant to 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. 20 C.F.R.§ 404.1509. 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 his condition. Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity.
Radford, 734 F.3d at 294.
In response to Radford, the SSA did not abandon its policy regarding Listing 1.04A, but issued Acquiescence Ruling 15-1(4), which is applicable to states in the Fourth Circuit. Acq. Ruling 15-1(4), 80 Fed. Reg. 57418-02, 2015 WL 5564523 (SSA 23 Sept. 2015). Acquiescence Ruling 15-1(4) sets forth a two-step test for application of Listing 1.04A:
Adjudicators will decide whether the evidence shows that all of the medical criteria in paragraph A are present within a continuous 12-month period (or, if there is less than 12 months of evidence in the record, that all the medical criteria are present and are expected to continue to be present). If all of the medical criteria are not present within a continuous 12-month period, adjudicators will determine that the disorder of the spine did not meet the listing.Acq. Ruling 15-1(4), 80 Fed. Reg. at 57420, 2015 WL 5564523.
If all of the medical criteria in paragraph A are present within a continuous 12-month period (or are expected to be present), adjudicators will then determine whether the evidence shows—as a whole—that the claimant's disorder of the spine caused, or is expected to cause, nerve root compression continuously for at least 12 months. In considering the severity of the nerve root compression, the medical criteria in paragraph A need not all be present simultaneously, nor in particularly close proximity. The nerve root compression must be severe enough, however, that the adjudicator can fairly conclude that it is still characterized by all of the medical criteria in paragraph A.
Here, after making the general finding that plaintiff's impairments do not meet or medically equal any listing, the ALJ set out the criteria of Listing 1.04A (as well as paragraphs B and C of Listing 1.04) and explained Acquiescence Ruling 15-1(4):
Disorders of the spine are evaluated under Listing 1.04. This requires compromise of a nerve root or the spinal cord, with evidence of nerve root compression, and characterized by neuroanatomic 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, where the lower back is involved, positive straight-leg raising test (sitting and supine). . . . .
The undersigned notes Acquiescence Ruling (AR) 15-1(4), which addressed the United States Court of Appeals for the Fourth Circuit's decision in Radford v. Colvin, 734 F.3d. 288 (4th Cir. 2013), concerning the criteria for Listing 1.04. As noted in AR-15-1(4), Agency policy is that all of the medical criteria in paragraph A of Listing 1.04 be simultaneously present in order to meet listing level severity. The Fourth Circuit's decision in Radford found that simultaneous presence of all listed criteria over a 12-month period was not required, but that a "more free-form, contextual inquiry that makes 12 months the relevant metric for assessment of the claimant's duration of disability" was appropriate. 734 F.3d at 293. The Radford court held that "Listing 1.04A requires a claimant to 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." Id. at 294. The court further held that 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 his condition. Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity." Id.Tr. 16 ¶ 4.
Remarkably, after setting out these standards, the ALJ does not provide any explanation of how she applied them. Indeed, she does not state specifically that the criteria are not met. Rather, that determination is encompassed in the ALJ's broader finding that plaintiff did not satisfy any of the Listings. The ALJ does not elsewhere specifically address her determination on Listing 1.04A.
The Commissioner argues that the basis for the ALJ's determination on Listing 1.04A is otherwise evident from her decision. The court disagrees.
Findings by the ALJ herself could arguably be deemed to show satisfaction of the criteria of Listing 1.04A. For example, the ALJ found that plaintiff had the severe impairment of degenerative disc disease. Tr. 13 ¶ 3. In addition, after describing a hospital visit on 4 January 2013 at which plaintiff reported and received medication for neck pain (Tr. 18 ¶ 5), the ALJ described the examination of plaintiff on 29 May 2013 in relevant part as follows:
[H]e again reported neck pain with symptoms described as [being of] moderate intensity. Physical examination showed no tenderness in the back but tenderness was noted at C6 through C8 on the right lower neck with muscle spasm (Ex. 1F, p. 7). A CT of the cervical spine showed very minimal retrolisthesis of C5 on C6. The vertebral bodies were otherwise well aligned but the bony structures were
somewhat osteopenic. There was almost complete loss of the C5-6 disc space height with associated osteophytic lipping. There was minimal decrease in the C6-7 disc space height. Degenerative changes were identified in the facet articulations at multiple levels. There was foraminal encroachment at C3-4 on the right, C4-5 on the right, and C5-6 bilaterally (Ex. 1F, p. 20). The claimant was diagnosed with degenerative disc disease and cervical radiculopathy. ED [i.e., emergency department] treatment included intramuscular Toradol and Dilaudid, as well as a soft neck collar. He was given a prescription for Acetaminophen-Oxycodone and was to seek follow up care (Ex. 1F, pp. 8-9).Tr. 18 ¶ 5 (emphasis added). These findings can be read to show satisfaction of the criteria of degenerative disc disease, compromise of a nerve root, evidence of nerve root compression, and, as reflected in the prescription of pain medication, neuroanatomic distribution of pain. See also Tr. 18 ¶ 5 (ALJ's review of records of 16 Dec. 2012 hospital record noting "clinical impression [of] cervical degenerative disc disease"); 19 ¶ 5 (AJL's review of records of 27 June 2013 visit with Todd Jarosz, M.D. noting plaintiff's reports of "neck pain with pain that radiated into his left arm"); 19 ¶ 5 (ALJ's review of 2 July 2013 hospital record noting "additional mild cervical degenerative changes" and reported "neck pain for the prior three months" (emphasis added)).
Foraminal encroachment refers to obstruction of the foramina, which are the openings on both sides of the vertebrae through which spinal nerves pass.
Although several times the ALJ misstates the year of this hospitalization, which was from 2 to 10 July 2013, as 2014 (see Tr. 19 ¶ 5), she gives the correct year of 2013 in most instances (see, e.g., Tr. 14 ¶ 3; 15 ¶ 3; 19 ¶ 5; 20 ¶ 5). The court is therefore satisfied that the ALJ understood the hospitalization to have occurred in 2013.
The ALJ's findings on an examination of plaintiff on 16 December 2012 arguably indicate satisfaction of the criterion of limitation of motion of the spine: "The examination showed tenderness to palpation on the right lateral aspect of the neck and decreased range of motion (ROM) (Ex. 1F, p. 16)." Tr. 18 ¶ 5 (emphasis added).
Satisfaction of the criterion of motor loss—namely, muscle weakness—accompanied by sensory loss is arguably shown by the ALJ's findings regarding plaintiff's visit with Todd Jarosz, M.D. on 27 June 2013:
The claimant presented to Todd Jarosz, M.D., of the Center for Scoliosis & Spinal Surgery on June 27, 2013, reporting neck pain with pain that radiated into his left arm, numbness and tingling in the fourth and fifth digits of the left hand, and weakness in the left hand. He also reported having difficulty with balance but denied having frequent falls. At that time, he indicated that he was taking no medications and was self-employed, working with computer software. On examination, the claimant was noted to ambulate with a wide-based gait, to have difficulty walking in a straight line, to have asymmetric repetitive alternating movements, slow motion, somewhat asymmetric reflexes in the upper extremities, but full strength in the upper and lower extremities, except decreased strength in hand grip, elbow and wrist flexion and extension on the left. Dr. Jarosz recommended an MRI of the cervical spine because of the claimant's difficulty ambulating and motor weakness of the left upper extremity (Exhibit 2F, pp. 1-2).Tr. 19 ¶ 5 (emphasis added).
The ALJ's findings do not address all the evidence arguably satisfying the criteria of Listing 1.04A. Such evidence not addressed by the ALJ includes the record of a 16 June 2013 hospital visit reciting plaintiff's complaints of neck stiffness and inability to move his neck. Tr. 365.
As a further example, the report on a 4 July 2013 hospital assessment found plaintiff to have "Left UE [i.e., upper extremity] Light touch impaired" and left upper extremity strength of "3-/5 overall." Tr. 419. This evidence arguably shows satisfaction of the criterion of motor loss accompanied by sensory loss.
Additionally, in the hospital discharge examination on 10 July 2013, plaintiff was found to have "decreased sensation on the left side of the face, shoulder, [and] arm." Tr. 402. Although a "[m]otor exam on the left side [was] deferred due to pain" (Tr. 402), left side weakness was a focus of the hospital stay, as illustrated by the 4 July 2013 record and other records (see, e.g., 401 (listing as one of five problem addressed during hospitalization "Left shoulder pain, neck pain, weakness and numbness"); 414 (noting plaintiff's complaints on admission on 2 July 2013 of "weakness in LUE [i.e., left upper extremity]")).
The fact that the My 2013 hospitalization came after plaintiff's date last insured does not necessarily render them irrelevant to the alleged period of disability. Among other reasons, the hospitalization occurred just a matter of days after the date last insured. Moreover, the hospital admission notes indicate that plaintiff reported that his "[s]ymptoms have been going on for months, gradually worsening." Tr. 414. This statement would place his symptoms well inside the alleged period of disability. Although the ALJ did not expressly address the relevance of the July 2013 hospitalization, the fact that she discussed the records from it throughout her decision certainly suggests that she deemed them relevant.
On remand, the Commissioner would be well advised to expressly address this issue. --------
The ALJ's failure to explain her ruling on Listing 1.04A came despite the Appeals Council's ruling that "[f]urther evaluation of the limitations related to the claimant's left upper extremity are warranted." Tr. 105. It even cited medical evidence having a potential bearing on satisfaction of Listing 1.04A: "notes regarding range of motion limitation, weakness, tingling, loss of strength and loss of hand grip strength in the left upper extremity." Tr. 105. The ALJ herself recognized functional limitations resulting from plaintiff's spinal disorder. Her RFC determination provided that plaintiff "could use the non-dominant left upper extremity only as a helper." Tr. 17 ¶ 5. She nonetheless found that plaintiff did not satisfy Listing 1.04A without explanation.
The ALJ's failure to provide an explanation of the basis for her determination on Listing 1.04A precludes the court from conducting meaningful review of her decision. Remand is accordingly warranted. Radford, 734 F.3d at 294-96; see also Monroe v. Colvin, 826 F.3d 176, 189-91 (4th Cir. 2016). The award of benefits, in lieu of remand, is not appropriate because of the presumption in favor of remand and the ambiguity in the record as to whether or not plaintiff satisfies Listing 1.04A. Radford, 734 F.3d at 295-96.
IV. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 36) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 38) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) to clarify the basis for his determination on Listing 1.04A. In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
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 17 July 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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.
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).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 3rd day of July 2019.
/s/_________
James E. Gates
United States Magistrate Judge