United States District Court, E.D. North Carolina, Southern Division
LARRY D. NEWKIRK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on cross-motions for judgment on
the pleadings. A hearing was held on these matters before the
undersigned on March 16, 2017, at Raleigh, North Carolina.
For the reasons discussed below, the decision of the
Commissioner is reversed.
brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of the final decision of the
Commissioner denying his claim for disability and disability
insurance benefits (DIB) pursuant to Title II of the Social
Security Act. Plaintiff protectively filed for DIB on April
6, 2009, alleging disability since September 1, 2008.
Plaintiffs claims were denied initially and on
reconsideration. After conducting a hearing and considering
the claim de novo, the ALJ found that plaintiff was not
disabled in a decision issued on June 15, 2011. The decision
of the ALJ became the final decision of the Commissioner when
the Appeals Council denied plaintiffs request for review.
Plaintiff then timely sought review of the Commissioner's
decision in this Court.
order entered September 10, 2013, this Court reversed the
decision of the Commissioner, finding that plaintiffs
impairments satisfied the criteria for Listing 1.04A and
alternatively that plaintiff was limited to sedentary work.
See Newkirk v. Colvin, 7:12-CV-200-BO (E.D. N.C.
Sept. 10, 2013). By order entered December 9, 2013, this
Court granted the Commissioner's motion to alter or amend
judgment under Fed.R.Civ.P. 59(e) in light of Radford v.
Colvin, 734 F.3d 288 (4th Cir. 2013). Id. (E.D.
N.C. Dec. 9, 2013). The ALJ thereafter reconsidered
plaintiffs claim for benefits and found that plaintiff was
not disabled by decision dated October 14, 2015. Plaintiff
again appealed the denial of disability benefits to this
the Social Security Act, this Court's review of the
Commissioner's decision is limited to determining whether
the decision, as a whole, is supported by substantial
evidence and whether the Commissioner employed the correct
legal standard. 42 U.S.C. § 405(g); see Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Substantial evidence consists of more than a mere scintilla
of evidence, but may be less than a preponderance of
evidence. Richardson v. Perales, 402 U.S. 389, 401
(1971). The Court must not substitute its judgment for that
of the Commissioner if the Commissioner's decision is
supported by substantial evidence. Hays, 907 F.2d at
evaluating whether a claimant is disabled, an ALJ uses a
multi-step process. First, a claimant must not be able to
work in a substantial gainful activity. 20 C.F.R. §
404.1520. Second, a claimant must have a severe impairment
that significantly limits his or her physical or mental
ability to do basic work activities. Id. Third, to
be found disabled, without considering a claimant's age,
education, and work experience, a claimant's impairment
must be of sufficient duration and must either meet or equal
an impairment listed by the regulations. Id. Fourth,
in the alternative, a claimant may be disabled if his or her
impairment prevents the claimant from doing past relevant
work and, fifth, if the impairment prevents the claimant from
doing other work. Id. The claimant bears the burden
of proof at steps one through four, but the burden shifts to
the Commissioner at step five. See Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987).
decision on appeal, after finding that plaintiff last met the
insured status requirements on December 31, 2013, and that
plaintiff had not engaged in any substantial gainful activity
since his alleged onset date at step one, the ALJ determined
that plaintiffs degenerative disc disease was a severe
impairment. The ALJ went on to find that as of his date last
insured plaintiff did not have an impairment or combination
of impairments that met or equaled a Listing at step three,
and found that plaintiff had a residual functional capacity
(RFC) to perform light work except that he could stoop only
occasionally. At step four, the ALJ found that plaintiff
could not perform his past relevant work as an operator
technician, but found at step five that, considering
plaintiffs age, education, work experience, and RFC, jobs
existed in significant numbers in the national economy that
plaintiff could perform as the additional limitation in
plaintiffs RFC had little to no effect on the occupational
base of unskilled light work. Accordingly, the ALJ found that
plaintiff was not disabled.
again, substantial evidence does not support the ALJ's
determination that plaintiff did not satisfy his burden to
show that he met Listing 1.04A at step three. A claimant may
be found disabled on medical grounds alone when he has a
"condition [that] meets the specific criteria in the
Listing of Impairments (the Listing) or is the equivalent of
a listed impairment." SSR 83-19. In order to show that
he meets a listing, a claimant must show that he meets all of
the specified medical criteria of that Listing. Sullivan
v. Zebley, 493 U.S. 521, 530 (1990). Listing 1.04 deals
with disorders of the spine, including degenerative disc
disease, resulting in compromise of a nerve root or the
spinal cord. Listing 1.04A requires in addition to the above:
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).
20 C.F.R. Part 404, Subpt. P, Appendix I § 1.04.
finding that plaintiff did not satisfy the criteria for
Listing 1.04A, the ALJ concluded that the record did not
contain evidence of motor loss or a positive straight-leg
raise test. Tr. 292. The ALJ's conclusion is contradicted
by the record. Motor loss accompanied by sensory loss was
noted in 2009, with testing demonstrating reduced strength in
plaintiffs right leg as well as reports of radiculopathy,
weakness, and numbness. Tr. 253; 310; 241. The record further
reveals a positive straight-leg raise test bilaterally. Tr.
251. Although the Commissioner argues that the record does
not contain evidence of a positive straight-leg raise test
which was performed in both the seated position and the
supine position, as is required by the Listing, the Court may
reasonably assume for these purposes that, absent indication
otherwise, the straight-leg raise test performed by Dr.
O'Malley was performed in both the seated and supine
positions. Moreover, the straight-leg raise test is used
"to determine whether nerve root irritation is a
possible cause of a patient's pain." Carlantone
v. Colvin, No. 14CV8204 (DF), 2015 WL 9462956, at *2 n.
7 (S.D.N.Y.Dec. 17, 2015). Here, the record plainly indicates
that plaintiffs disk extrusion contacted and displaced the SI
and L5 nerve roots. Tr. 253. Thus, that Dr. O'Malley did
not in his office note specify whether the straight-leg raise
tests he performed were administered in the supine or seated
positions or both should not be fatal to plaintiffs claim
that his condition satisfies Listing 1.04A. Additionally, Dr.
O'Malley's straight-leg raise test was performed in
some position, and if presented with "insufficient
evidence such that the ALJ was unable to determine whether
plaintiff was disabled, the ALJ was required to 'try
to' resolve the insufficiency by (1) recontacting the
treating physician, (2) requesting additional records, (3)
requesting plaintiff undergo a consultative examination, or
(4) asking plaintiff for more information." Bishop
v. Colvin, No. CIV.A. 14-4068-CM, 2015 WL 5472494, at *5
(D. Kan. Sept. 17, 2015) (citing 20 C.F.R. §
discussed above and in the Court's prior ruling, there is
substantial evidence in the record to support that plaintiffs
condition satisfies the remaining requirements of Listing
1.04A. See, e.g., Tr. 235 (neuroanatomic
distribution of pain); Tr. 245, 253 (limited range of
motion); Tr. 221, 222, 241 (weakness, numbness characterized
as radiculopathy); Newkirk v. Astrue, No.
7:12-CV-200-BO (E.D. N.C. Sept. 10, 2013); see also
Radford, 734 F.3d at 294 (a claimant "need not show
that each symptom was present at precisely the same
time-i.e., simultaneously-in order to establish the chronic