Opinion
NO. 7:19-CV-00183-FL
06-16-2020
Leron Pierre Pankey, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Leron Pankey challenges Administrative Law Judge ("ALJ") Mark C. Ziercher's denial of his application for social security income. Pankey claims that ALJ Ziercher erred in (1) failing to find his impairments met or equaled the criteria in the Listing of Impairments, (2) assessing his residual functional capacity ("RFC"), and (3) identifying other work that Pankey could perform. Both Pankey and the Defendant Andrew Saul, Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 12, 15.
After reviewing the parties' arguments, the court has determined that ALJ Ziercher erred in his determination. The record contains several, if not all, all the criteria of Listing 1.04A and 1.04B, so the undersigned cannot find that substantial evidence supports the cursory step three analysis. And there are oversights in ALJ Ziercher's RFC determination because he failed to consider some limitations assessed by Pankey's providers and his consideration of responses to the post-hearing interrogatories propounded on the medical expert. These errors cast doubt on the reliability of ALJ Ziercher's step five finding. So the undersigned magistrate judge recommends that the court grant Pankey's motion, deny the Commissioner's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In November 2014, Pankey applied for disability insurance benefits, alleging a disability that began in October 2013. After the Social Security Administration denied his application at the initial level and upon reconsideration, Pankey appeared before ALJ Ziercher for a hearing to determine whether he was entitled to benefits. ALJ Ziercher determined Pankey was not entitled to benefits because he was not disabled. Tr. at 17-30.
ALJ Ziercher found that Pankey's lumbar degenerative disc disease, status post fusion, cervical disc disease, and obesity were severe impairments. Tr. at 20. ALJ Ziercher also found that Pankey's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Ziercher then determined that Pankey had the RFC to perform a reduced range of light work. Tr. at 21. Pankey can stand up to 30 minutes uninterrupted, for two hours, and he can walk for 30 minutes uninterrupted, for two hours. Id. Pankey can sit for one hour uninterrupted, for six hours. Id. He can occasionally climb ramps and stairs but cannot climb ladders, ropes, or scaffolds. Id. And Pankey can occasionally balance, stoop, kneel, crouch, and crawl. Id.
Pankey can frequently perform flexion, extension, and rotation of his neck. Id. He can occasionally reach overhead bilaterally and frequently reach in all other directions. Id. Pankey can frequently feel, handle, and finger bilaterally. Id. And he can occasionally push and/or pull with the bilateral upper extremities and occasionally push and/or pull with the bilateral lower extremities. Id.
Pankey can have frequent exposure to extreme cold and extreme heat. Id. Pankey may occasionally be exposed to vibration and moving mechanical parts but he can have no exposure to high, exposed places. Id. And Pankey cannot perform work that requires operating a motor vehicle or heavy equipment. Id.
ALJ Ziercher concluded that Pankey could perform his past relevant work as an instrument technician, as that work is actually performed. Tr. at 26. And considering his age, education, work experience, and RFC, ALJ Ziercher also found that jobs existed in significant numbers in the national economy that Pankey could perform. Tr. at 36-27. These jobs include mail clerk, office helper, router, addresser, document preparer, and surveillance system monitor. Tr. at 27. Thus, ALJ Ziercher found that Pankey was not disabled. Tr. at 29-30.
After unsuccessfully seeking review by the Appeals Council, Pankey commenced this action in September 2019. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
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).
B. Standard for Evaluating Disability
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. But 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).
C. Medical Background
In October 2013, his disability onset date, Pankey was involved in a motor vehicle accident. Tr. at 828-55. An ambulance transported Pankey to the hospital where he had imaging studies of his neck. Id. A CT scan of Pankey's cervical spine showed mild left foraminal narrowing at C3-C4 and C4-C5. Id. Providers prescribed medication. Id.
Later that month, Pankey saw Dr. Richard Bumgardner for complaints of generalized back soreness. Tr. at 255. Dr. Bumgardner directed Pankey to continue his medications. Id.
One month later, Pankey saw Renee Wall, PA, at OrthoWilmington for continuing neck and low back pain which radiated into his lower right extremity. Tr. at 369-71. An examination found tenderness, limited range of motion of his lumbar spine, and a positive right straight leg raise. Id. Wall prescribed Pankey a course of steroids and advised that he remain out of work for ten days. Id.
At a follow-up visit later that month, Pankey reported that the steroids had relieved his pain for only two days, and he remained in "near-constant" aching with intermittent cramping in his lower right extremity. Tr. at 366-68. An examination showed tenderness and a reduced range of motion in Pankey's lumbar spine. Id.
An MRI of Pankey's lumbar spine revealed post-surgical changes with mass effect involving the left L3-L4 foraminal region and left lateral extraforaminal region with suspected residual or recurrent disc herniation. Tr. at 372-73.
Pankey continued to report persistent lower right extremity pain and cramping in December 2013. Tr. at 364-65. Straight leg testing produced positive results on the right. Id. Wall referred Pankey for an epidural steroid injection and recommended a revision micro-decompression procedure. Id.
Pankey attended physical therapy later that month. Tr. at 362. He reported increased pain with bending, sneezing, and standing more than 25 minutes. Id. An examination showed reduced strength in the bilateral lower extremities. Id. Because of poor results, Pankey did not to return to physical therapy. Tr. at 353.
In January 2014, Dr. Francis Pecoraro administered an epidural steroid injection. Tr. at 358-59. He saw Wall for a follow-up visit two weeks later where testing revealed a positive straight leg raise on the right. Tr. at 356-57.
Later that month, Pankey visited Dr. Daniel Rose for a surgical consultation. Tr. at 354-55. Dr. Rose observed an antalgic gait and positive straight leg raise on the right. Id. Dr. Rose suspected probable recurrent L4-L5 disc herniation and degenerative changes from L3-S1. Id.
The next month, an MRI of Pankey's lumbar spine showed left lateral recess and left foraminal disc herniation at L3-L4 as well as increased, moderate central and right lateral recess disc herniation at L4-L5, with marked right lateral recess encroachment. Tr. at 374-75.
Pankey again reported low back pain in a follow-up visit to Dr. Rose later that month. Tr. at 351-52. An examination showed an antalgic gait and right-sided positive straight leg raise. Id. Pankey returned to Dr. Rose several days later and again reported low back pain which radiated into his lower right extremity. Tr. at 348-50. Dr. Rose recommended extreme lateral interbody fusion ("XLIF") surgery at L3-L4 and L4-L5 and transforaminal lumbar interbody fusion ("T-LIF") surgery. Id.
A CT scan revealed a large right paracentral disc herniation at L4-L5, diffuse osteophyte complex causing persistent compression of the thecal sac at L5-S1, and a disc bulge at L3-L4. Tr. at 523-24. Underlying congenital spinal canal stenosis was also present. Id.
Dr. Adam Brown at Coastal Neurosurgical & Spine Center evaluated Pankey in April 2014. Tr. at 879-80. Pankey reported persistent low back and lower extremity pain. Id. An examination showed reduced dorsiflexion on his right side. Id. Dr. Brown recommended surgery. Id.
Dr. Rose performed surgeries later that month that included partial foraminotomies, partial laminectomies with decompression of cauda equina and nerve roots at L4-S1, extension of the herniated intervertebral disc at L5-S1, and autograph and allograph arthrodesis at multiple levels with instrumentation. Tr. at 376-78, 381-84, 548-67. Providers directed Pankey to avoid repetitive bending, lifting, twisting, and stooping, and limited his lifting to ten pounds. Tr. at 380, 537.
Pankey saw Wall for a follow-up visit later that month. Tr. at 540-42. He walked with a walker due to post-surgical weakness and pain. Id. Wall prescribed pain medication to Pankey. Id.
At an appointment with Dr. Rose the next month, Pankey reported some improvement in his leg pain but continued lower back pain. Tr. at 337-39. An examination showed reduced strength in plantar flexion, and Dr. Rose recommended physical therapy. Id.
At his initial physical therapy visit, Pankey displayed a decreased range of motion, reduced strength, functional mobility. Tr. at 335-36. He used a cane to walk. Id. Pankey stated that he experienced pain when he climbed stairs or stood more than 15 minutes, walked more than 20 minutes, and sat more that 10 minutes. Id. After eleven visits, Pankey continued to show right lower extremity weakness. Tr. at 316.
Pankey returned to Dr. Rose in September 2014 reporting worsening pain in his right foot. Tr. at 314-15. On examination, Pankey had reduced strength in the plantar flexion and could not toe walk on his right side. Id.
One month later, a CT myelogram on Pankey's lumbar spine noted the post-surgical changes. Tr. at 385-88, 567-70, 572-73. But it also revealed central canal stenosis at L2-L3, intrinsic canal narrowing, and a slight disc bulge. Id. There was also a small left paracentral disc protrusion at L3-L4 causing mild left lateral recess stenosis and moderate left foraminal narrowing. Id.
Returning to Dr. Rose later that month, Pankey reported right foot weakness and saddle numbness. Tr. at 312-13. He had decreased plantar flexion strength and could not toe walk on his right side. Id. Dr. Rose opined that nerve irritation could be the cause of Pankey's perirectal numbness and sexual dysfunction, and he suggested it could be a permanent nerve injury. Id.
Pankey continued to experience bilateral lower extremity pain as well as numbness and tingling in his right foot. Tr. at 389-90. A November 2014 electromyography/nerve conduction study showed right peroneal motor axonopathy, bilateral tibial axonopathy with tibial motor onset latency on the right, bilateral medical and lateral plantar sensory neuropathy, and acute denervation injury on the right gastrocnemius muscle, indicative of S1 radiculopathy. Id. Dr. Rose recommended re-exploration at L5-S1 to "completely free the S1 nerve root." Tr. at 308. And Dr. Rose noted that the CT myelogram showed some evidence of arachnoiditis which was unlikely to resolve with further surgery. Id.
Later that month, Pankey underwent hemilaminectomies, partial facetectomies, partial foraminotomies, and excision of scar tissue with decompression of the cauda equina and nerve root. Tr. at 393-95, 575-83.
Pankey saw Dr. Rose the next month and reported some improvement in his right lower extremity symptoms but continued numbness in his saddle area and weakness in the right gastrocnemius. Tr. at 309-10. Again, Pankey had reduced strength in his plantar flexion and could not toe walk on the right. Id. Dr. Rose recommended physical therapy. Id. Pankey reported similar symptoms the next month. Tr. at 303-05. Dr. Rose recommended a work hardening and therapy protocol to return Pankey to his previous job, as he had been out of work for over a year. Id.
Between January and March 2015, Pankey participated in a course of physical therapy. Tr. at 42-505. At the time of discharge, physical therapy notes reflect that Pankey could sit for 30 minutes and walk for 40 minutes. Tr. at 504.
The month after, Pankey saw Dr. Rose and again reported reduced right plantar flexion strength and saddle numbness. Tr. at 407-09. Dr. Rose issued a work note to Pankey restricting him to lifting no more than 60 pounds with no bending or climbing ladders and scaffolds. Id.
Pankey's right plantar flexion weakness and saddle numbness remained stable, so Dr. Rose prescribed medication and directed Pankey to follow-up as needed. Tr. at 404-06. A lumbar spine MRI showed stable moderate acquired central canal stenosis at L2-L3 from degenerative disc disease and facet arthropathy. Tr. at 749. Although it revealed no foraminal stenosis, there was significant scarring on the right at L5-S1. Tr. at 405.
In January 2016, Pankey underwent another electromyography/nerve conduction study for his continued right leg weakness. Tr. at 519-22, 782-84. The studies showed probable L5-S1 radiculopathy and chronic sensorimotor polyneuropathy in the lower extremities. Id.
The next month, Pankey saw Esther Murray, PA-C, at Coastal Neurology. Tr. at 510-11. Murray recommended fall prevention precautions to Pankey and suggested that he avoid carrying objects with both hands at one time. Id.
A May 2016 CT myelogram showed evidence of congenitally short pedicles and prominent posterior epidural fat resulting in moderate spinal cord stenosis at L2-L3. Tr. at 587-88, 612, 616, 787-88.
One month later, Pankey underwent XLIF surgery at the L2-L3 level. Tr. at 584-85, 596-98, 604, 770-72. Following surgery, Dr. Rose limited Pankey's lifting to ten pounds. Tr, at 616-17, 761. He also advised Pankey to avoid repetitive or extreme bending, twisting, lifting, or stooping. Tr. at 601.
In September 2016, Pankey was treated for cervicalgia with symptoms of radiating right arm pain. Tr. at 668-70. An examination showed muscle spasms, and providers prescribed medication to Pankey. Id.
Pankey reported continuing and worsening right-sided neck and shoulder pain one week later, which medication had failed to relieve. Tr. at 731-33. X-rays showed degenerative changes, and Dr. Rose ordered physical therapy. Tr. at 727-30.
The following month, a cervical spine MRI revealed left paracentral disc/marginal osteophyte complex with left lateral recess stenosis and moderate stenosis of the left foramen. Tr. at 744-45. Also shown was broad disc/osteophyte complex with mild ventral cord abutment at C4-C5 with moderate bilateral degenerative foraminal narrowing. Id. And at C5-C6, there were asymmetric left paracentral disc/osteophyte complex with left ventral cord flattening and severe left foraminal stenosis. Id.
In November 2016, Pankey told Dr. Rose that his back pain improved following XLIF surgery but he continued to have neck pain with radiation into his left arm. Tr. at 721-24. Dr. Rose prescribed a course of oral steroids and recommended an epidural steroid injection. Id.
Around this time, Pankey underwent a physical therapy evaluation. Tr. at 718-21. Providers noted pain, decreased cervical range of motion, and decreased strength in the left upper extremity. Id.
Two months later, Pankey had an electromyography/nerve conduction study on his upper extremities. Tr. at 737-42. It showed mild active denervation changes in the left paraspinal musculature and mild chronic reinnervation changes in the left deltoid and left abductor pollicis brevis muscle consistent with chronic left cervical radiculopathy. Id. Also shown were mild median neuropathies at the wrist with mild ulnar neuropathies. Id.
Pankey saw Dr. Rose several days later and reported minimal short-term improvement in his pain following the epidural steroid injection. Tr. at 637-41. He continued to experience pain radiating down his left arm into his left hand. Id. Pankey reported that neck extension, sneezing, and coughing exacerbated his symptoms. An examination noted hypoesthesia in the C-6 distribution on the left. Id. Dr. Rose prescribed Pankey a cervical collar. Id.
Later that month, Pankey underwent C5-C6 anterior discectomy for decompression of the spinal cord and nerve roots, including an osteophytectomy and replacement of the the C5-C disc with an implant. Tr. at 628-30. Following surgery, Dr. Rose restricted Pankey to lifting no more than ten pounds and no repetitive or extreme flexion, extension, or rotation of the cervical spine. Tr. at 637-38, 702.
Pankey participated in another course of physical therapy in May and June 2017. Physical therapy notes show that he continued to experience some lower right extremity weakness and decreased range of motion in his lumbar spine with tenderness and muscle spams. Tr. at 789-826.
At the hearing, Pankey testified that his back and neck pain limited him. Tr. at 43, 47-49. He stated that he could walk for 20 minutes, stand for 10 minutes, and sit for 60 minutes. Tr. at 46-47. To alleviate his pain, he lies down and takes medications, which cause drowsiness and irritability. Tr. at 51-53.
D. Listing 1.04 (Disorders of the Spine)
Pankey contends that ALJ Ziercher erred by finding that his impairments did not meet or medically equal the requirements of Listing 1.04A. The Commissioner maintains that the evidentiary record supports the ALJ Ziercher's finding. The court finds that ALJ Ziercher erred in summarily analyzing Pankey's impairments at step three because the record shows the Listing criteria are present.
1. Overview of Listing of Impairments
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 proving 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 need not 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). When the 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)). Still, 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.
2. Listing 1.04
Pankey contends that ALJ Ziercher erred by failing to find that his 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:
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 2 hours[.]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).
Pankey does not argue he meets or equals subsection C of Listing 1.04.
The Fourth Circuit rejected a contention that Listing 1.04A required that all the requisite symptoms be present simultaneously or in close proximity. Radford , 734 F.3d at 294. It stated:
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.Id.
In response to Radford, the SSA issued Acquiescence Ruling 15-1(4), which 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.AR 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.
ALJ Ziercher found that Pankey's impairments did not meet or medically equal a listing in Section 1.04. Tr. at 20. He remarked that "[a]lthough the claimant has had a number of back surgeries, the evidence fails to demonstrate that he has motor loss, sensory or reflex loss, positive straight-leg raise testing in the seated and supine positions, spinal arachnoiditis, or an inability to ambulate effectively[.]" Id.
The undersigned cannot agree with the Commissioner's argument that while the step three analysis may have been brief, ALJ Ziercher's "narrative discussion of the evidence that followed provided the necessary assessment and evidentiary support for [his] findings." D.E. 16 at 7. While ALJ Ziercher's later discussion of the medical evidence references some of the Listing 1.04 criteria, his analysis lacks sufficient detail about the presence, or absence, of the additional medical evidence required by this Listing. Tr. at 23-25. As explained below, the undersigned cannot conclude that substantial evidence supports her conclusion that Pankey's condition did not meet or medically equal Listing 1.04.
While an ALJ need not discuss each piece of evidence, see Brewer v. Astrue, No. 7:07-CV-00024, 2008 WL 4682185, at *3 (E.D.N.C. Oct. 21, 2008), omitting reference to evidence showing the presence of Listing criteria leaves a reviewing court unable to determine whether the ALJ considered that evidence in his step three analysis. Fourth Circuit case law requires a comparison of a Listing's criteria to evidence of a claimant's symptoms when, as here, there is ample evidence supporting a determination that the impairments meet or qual a Listing impairment.
In support of his argument that he meets 1.04A, Pankey contends that all of the 1.04A criteria are present in the record. A review of the medical evidence shows that many of the Listing 1.04A criteria were present throughout the relevant period. A February 2014 MRI showed "likely compression of the nerve root" at L4-L5. Tr. at 351. Pankey underwent two surgeries to decompress nerve roots, further indicating there was compression of the nerve roots. Tr. at 393-95, 575-83, 628-30. Providers noted the neuroanatomic distribution of pain from Pankey's back into his lower extremities and his upper extremities, tr. at 348-50, 637-41, 664-71, 731-33, which testing confirmed, tr. at 519-22, 737-42, 782-84.
It is arguable that the surgeries failed to resolve Pankey's nerve root compression and the condition persisted since his complaints continued following surgery.
Many record entries reflect Pankey's limited range of motion in his cervical and lumbar spines. Tr at 720-879. He displayed reduced strength in his lower right extremity many times. Tr. at 309-15, 335-39, 404-09, 718-21, 789-826. Examinations also found diminished sensation, particularly in Pankey's saddle area. Tr. at 303-05, 309-10, 404-09. And the medical evidence noted several instances in which Pankey had positive results on straight leg raise testing. Tr. at 354-57, 364-71.
Whether the record contains positive straight leg raise testing from both seated and supine positions is for the ALJ to determine. Because the record references positive straight leg raises, as well as the other Listing 1.04 criteria, ALJ Ziercher needed to examine the evidence against the Listing conditions in making his step three finding. Having failed to do that requires remand, as it is the ALJ's duty, not the court's, to weigh the evidence in the first instance. And because Pankey's back pain involved not only his lumbar spine but also his cervical spine, he may not need to establish positive straight leg test results to meet the Listing.
The Commissioner posits that ALJ Ziercher concluded that Pankey could ambulate effectively. D.E. 16 at 10. The undersigned does not agree that ALJ Ziercher reached that conclusion, as it appears he made no explicit finding on Pankey's ability to ambulate effectively but merely recited Listing 1.04's elements. Tr. at 20. And the record noted instances when Pankey used a walker or cane to ambulate. The record contains enough evidence to merit more than a passing conclusion that evidence failed to show an inability to ambulate effectively. Because the decision lacks an explicit discussion of Pankey's use of an assistive device, the undersigned cannot determine the reasons why he may not satisfy this factor.
The undersigned is persuaded that the record arguably exhibits all the Listing 1.04A criteria. The Commissioner recapitulates ALJ Ziercher's discussion of the medical evidence, see D.E. 16 at 10-13, but identifying record entries where Pankey's examinations found signs and symptoms were normal or absent does not nullify other treatment notes identifying the presence of the Listing 1.04 criteria. And the Listing does not require that all criteria to be present simultaneously or continuously.
Pankey also argues that ALJ Ziercher erred in failing to assess his impairments under Listing 1.04B. He maintains that the record shows evidence of spinal arachnoiditis and dysesthesia, and his need to change frequently positions. Dr. Rose's records reflect that the CT myelogram showed evidence of arachnoiditis which more surgery would not resolve. Tr. at 308. As noted above, the record included evidence of dysesthesia when Pankey presented with pain and cramping. Tr. at 50-51, 362-69, 506-13, 779, 879. And treatment records show that Pankey reported he needed to change positions to alleviate his pain. Tr. at 21, 336, 448-98.
Dysthesia is defined as "[a] condition in which a disagreeable sensation is produced by ordinary stimuli; caused by lesions of the sensory pathways, peripheral or central" or "[a]bnormal sensations experienced in the absence of stimulation." Stedman's Medical Dictionary 272280.
This evidence arguably shows that Pankey may meet Listing 1.04B. But ALJ Ziercher's passing consideration of the Listing, by itemizing the criteria and concluding Pankey did not satisfy them, is insufficient for the undersigned to determine whether substantial evidence supports his step three finding. So further consideration of Listing 1.04B is appropriate.
Because ALJ Ziercher erred in his step three analysis and the record appears to reflect the criteria which may satisfy Listing 1.04A and/or 1.04B, remand is appropriate.
E. Residual Functional Capacity
Pankey contends that ALJ Ziercher failed to consider limitations assessed by his treating providers. He also maintains that ALJ Ziercher erred in failing to reconcile Dr. Devere's assessment with contrary evidence in the record and omitting limitations for his time off-task and work absences. The Commissioner argues that substantial evidence supports ALJ Ziercher's RFC determination. The undersigned finds ALJ Ziercher failed to consider some assessed limitations or explain their omission from his RFC determination. But Pankey has not established that he would be off-task or absent from work more than the RFC reflects.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford, 734 F.3d at 295. Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity "assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling also explains that the residual functional capacity "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. But "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. July 26, 2010))).
In determining the RFC, an ALJ also considers the medical opinion evidence. "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
1. Dr. Rose's Opinion
Pankey contends that ALJ Ziercher failed to weigh Dr. Rose's assessment that he avoid bending, twisting, and lifting more than 60 pounds. The Commissioner argues that this is not a medical opinion that the ALJ must weigh. The undersigned finds that position wholly unsupported.
Because the RFC limited Pankey to a reduced range of light work, ALJ Ziercher's failure to assign weight to the 60-pound lifting restriction is harmless, given that light work contemplates lifting no more than 20 pounds. See 20 C.F.R. § 404.1567.
But Dr. Rose also restricted Pankey from repetitive bending and twisting following surgeries in April 2015 and June 2016. Tr. at 380, 537, 601. ALJ Ziercher did not address these specific limitations.
He remarked, however, that Pankey received temporary work restrictions following surgery, such as lifting no more than five or ten pounds. Tr. at 25. ALJ Ziercher found that the work restrictions were intended to be temporary, not long-term assessments of Pankey's functional abilities, and thus deserved little weight. Id.
It is not apparent that Dr. Rose's restrictions on bending and twisting were temporary work restrictions. Pankey was out of work for several months before his first surgery, and ultimately did not return to work. Tr. at 20.
The record ALJ Ziercher references in his decision notes the June 2016 preoperative appointment informed Pankey of the "typical postoperative restrictions to include no repetitive or extreme flexion and extension and rotation of the lumbar spine[.]" Tr. at 611. But the postoperative record instructed Pankey to engage in "[n]o repetitive or extreme bending, twisting, lifting, or stooping. No lifting greater than 10# until your post-op appointment." Tr. at 601. So the lifting restriction may have been temporary until Pankey's follow-up appointment, but the limitation of postural activities does not appear to be time limited.
The April 2014 postoperative records similarly show that Pankey's activity could include "[n]o repetitive or extreme bending[,] lifting[,] twisting[,] or stooping, no lifting greater that 10 pounds." Tr. at 380, 537.
ALJ Ziercher's failure to address these postural limitations leaves the reviewing court unable to determine whether they were disregarded or considered and rejected, and the reasons supporting that finding. And additional postural restrictions, if incorporated into the RFC, may impact the later steps of the sequential analysis. So remand is proper for further consideration of this issue.
2. Murray's Assessment
Pankey argues that ALJ Ziercher failed to accord weight to Murray's recommendation that he take fall prevention precautions and avoid carrying objects with both hands at the same time. The Commissioner asserts that Murray's statement is not an opinion but a record of her treatment notes, so ALJ Ziercher did not have to assign weight to it. The undersigned finds that Murray's directive that Pankey not concurrently engaging both upper extremities to carry or lift objects is a functional limitation that ALJ Ziercher should have weighed. Although she may not be an acceptable medical source, her assessment reflects a judgment on Pankey's impairments and functioning. See Love-Moore, 2013 WL 5366967, at *11 (noting that statements reflecting judgment on limitations, and not merely reporting subjective statements, constitute medical opinions).
The undersigned cannot be sure that ALJ Ziercher considered this restriction because the decision contains no reference to Murray's assessment. And his failure to evaluate this provider's assessed limitation may impact the RFC and later steps of the sequential disability determination because restrictions on the use of his upper extremities in lifting or carrying could further limit the work available to him. So this error merits more consideration upon remand.
3. Dr. Devere's Findings
Pankey also argues that ALJ Ziercher erred in giving significant weight to Dr. Ronald Devere, a medical neurology expert who responded to post-hearing interrogatories. Tr. at 24-25, 988-95.
Dr. Devere determined that Pankey's impairments did not satisfy Listing 1.04. Tr. at 989-90. The record reflected pain, sensory loss, weakness, neuropathy, abnormal results on EMG studies. Id. But Dr. Devere disputed "a [right] S1 root problem." Tr. at 989.
Yet the February 2014 MRI showed "likely compression of the nerve root" at L4-L5. Tr. at 351 (emphasis added). And Dr. Rose's treatment notes reflect that he performed two surgeries on Pankey to decompress nerve roots. Tr. at 393-95, 575-83, 628-30. So the evidence suggests there was compression of the nerve roots. And there were positive findings in the medical record showing the presence of other 1.04 criteria, several of which Dr. Devere noted. As explained above in the examination of ALJ Ziercher's step three analysis, substantial evidence does not support the cursory conclusion that Pankey's impairments did not meet Listing 1.04. Dr. Devere's similarly brief examination of the Listing does not strengthen ALJ Ziercher's step three conclusion, especially given the ample evidence that arguably supports Pankey's impairments meet the Listing criteria.
In according it significant weight, ALJ Ziercher noted that Dr. Devere limited his opinion to his area of expertise and identified Pankey's limitations on a function-by-function basis, with "detailed justification and specific references to the record" to support his conclusions. Tr. at 24-25. But Dr. Devere's basis for the functional limitations he found was Pankey's "chronic neck and low back pain on pain med[ications] [and] safety concerns." Tr. at 992, 994. Although this explanation may support his assessment, it is hard to characterize it as "detailed justification." And in assessing Pankey's functional abilities, Dr. Devere's review lacks "specific references to the record."
So the undersigned cannot agree with ALJ Ziercher's reasons for assigning significant weight to Dr. Devere's opinion. And Dr. Devere's analysis of Listing 1.04 conflicts with the record. Thus, these issues warrant remand for further examination of this evidence.
4. Work Absences and Time Off-Task
Pankey contends that ALJ Ziercher failed to address his work absences and time off-task. The Commissioner argues that Pankey does not have limitations in these areas. The undersigned finds that ALJ Ziercher concluded that Pankey would miss work and experience some reduced productivity, but that his limitations were within the accepted ranges tolerated by employers.
ALJ Ziercher noted that Pankey's pain and other symptoms would cause Pankey some absences and reduced productivity. Tr. at 28. The VE testified that an employee could remain employable if he were off-task no more than 15% of an eight-hour workday or absent from work two days per month. Id. ALJ Ziercher stated that in his experience, the testimony of other VEs generally concluded that employers would tolerate an employee with an average of 1 to 1 ½ absences days per month and who was off-task 5-10% of an eight-hour workday. Id.
ALJ Ziercher stated that quantifying Pankey's expected absences or time off-task would be speculative. Id. A reasonable reading of ALJ Ziercher's discussion of Pankey's potential absences or time off-task is that they would fall within the tolerated thresholds as the related by the VE or identified by ALJ Ziercher, based on the testimony of other VEs.
And Pankey has identified no evidence showing that he would be absent from work or experience reduced productivity greater than the tolerances identified by the Vocational Expert ("VE") and ALJ Ziercher. So the court should reject Pankey's argument on this issue as it lacks merit.
F. Step Five
Finally, Pankey argues that the interrogatories ALJ Ziercher posed to the VE failed to elicit reliable evidence at step five because they did not reflect all of his limitations. The Commissioner contends that the VE's responses were proper because they addressed all of Pankey's well-supported restrictions. Because the undersigned cannot conclude that substantial evidence supports the RFC determination, further consideration of whether there is work available to Pankey at step five is warranted.
As noted above, while a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert [("VE")] to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566)). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d 47, 49 (4th Cir. 1989); Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F. Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine "whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]" 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-cv-0009-FL, 2009 WL 863372, at *4 (E.D.N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Pankey premises this argument on his earlier contention—that the RFC failed to consider all of his limitations. As noted above, it remains unclear whether substantial evidence supports ALJ Ziercher's RFC determination. So the undersigned cannot determine whether ALJ Ziercher's reliance on the VE's responses to interrogatories was proper. For this reason, the court should grant Pankey's argument on this issue as meritorious.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Pankey's Motion for Judgment on the Pleadings (D.E. 12), deny Saul's Motion for Judgment on the Pleadings (D.E. 15), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: June 16, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge