United States District Court, E.D. North Carolina, Northern Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
John William Rette instituted this action in June 2017, to
challenge the denial of his application for social security
income. Rette claims that Administrative Law Judge
(“ALJ”) Catherine Harper erred in (1) failing to
find his sciatica met or equaled the criteria in the Listing
of Impairments, (2) failing to afford great weight to the
opinion of his physical therapist, (3) finding that he had a
residual functional capacity (“RFC”) to perform
medium work, (4) finding that he could perform his past work,
(5) failing to apply the correct Medical Vocational Guideline
(“Grid Rule”), 201.06, which directs a finding of
disabled, (6) failing to present a proper hypothetical
question to the Vocational Examiner (“VE”), and
(7) failing to credit fully Rette's credibility and
symptoms. Both Rette and Defendant Nancy A. Berryhill, the
Acting Commissioner of Social Security, have filed motions
seeking a judgment on the pleadings in their favor. D.E. 14,
reviewing the parties' arguments, the court has
determined that ALJ Harper reached the appropriate decision.
ALJ Harper properly concluded that the evidence does not
support a finding that Rette's impairments meet or equal
the criteria for Listing 1.04 because he does not meet all
the criteria of that Listing. Additionally, ALJ Harper
properly evaluated the medical opinion evidence and
Rette's credibility. Substantial evidence supports ALJ
Harper's finding that Rette can perform medium work. She
properly found that Rette could perform his past relevant
work. Finally, the undersigned cannot find error in ALJ
Harper's step five analysis, including her identification
of the relevant Grid Rule and her hypothetical questions to
the VE. Therefore, the undersigned magistrate judge
recommends that the court deny Rette's motion, grant the
Commissioner's motion, and affirm the Commissioner's
February 2013, Rette protectively filed an application for
disability insurance benefits, alleging a disability that
began in May 2013. After his claim was denied at the initial
level and upon reconsideration, Rette appeared before ALJ
Harper for a hearing to determine whether he was entitled to
benefits. ALJ Harper determined Rette was not entitled to
benefits because he was not disabled. Tr. at 20-27.
Harper found that Rette's lumbar spondylosis and
herniated discs were severe impairments. Tr. at 22. ALJ
Harper found that Rette's impairments, either alone or in
combination, did not meet or equal a Listing impairment. Tr.
Harper then determined that Rette had the RFC to perform a
full range of work at the medium exertional level.
Id. ALJ Harper concluded that Rette was capable of
performing his past relevant work as a company owner and
window and door installer. Tr. at 26. ALJ Harper also found,
in the alternative, that considering his age, education, work
experience, and RFC, other work existed in the national
economy that Rette could perform and that Grid Rule 203.07
directed a finding of “not disabled.” Tr. at 27.
Thus, ALJ Harper found that Rette was not disabled.
unsuccessfully seeking review by the Appeals Council, Rette
commenced this action in June 2017. D.E. 1.
Standard for Review of the Acting Commissioner's Final
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).
Standard for Evaluating Disability
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).
has a history of back problems and first sought treatment
from Dr. Joseph Keenan in 2007. Tr. at 37. By 2012, Rette
experienced low back pain with a shooting pain down his right
leg and numbness in both feet. Tr. at 37.
Gwendolyn Riddick performed consultative examinations in
April and October 2013. Tr. at 277-84, 302-09. At the initial
examination, Rette reported that activity exacerbated his
foot numbness and low back pain. Tr. at 278. Rette showed
negative results on straight leg testing. Tr. at 281. Dr.
Riddick found that Rette could sit, stand, and walk normally
during an eight-hour workday without an assistive device. Tr.
at 282. Dr. Riddick found mild limitations in his abilities
to lift and carry and she limited him to occasional bending,
stooping, crouching, and squatting. Tr. at 283. Dr. Riddick
opined that Rette may benefit from pain management and
physical therapy. Tr. at 282.
later examination with Dr. Riddick, Rette again reported
activity exacerbated his foot numbness and low back pain and
alleged difficulty with prolonged sitting and standing. Tr.
at 303. Rette noted that he took over-the-counter
anti-inflammatory medications for his symptoms. Tr. at 307.
Dr. Riddick opined that Rette had mild limitations in
sitting, standing, walking, lifting, and carrying because of
back pain. Tr. at 308. She again concluded that he could
occasionally bend, stoop, crouch, and squat. Id.
Melvin Clayton, a state agency reviewer, evaluated
Rette's medical record in October 2013. Tr. at 88-100.
Although Rette had arthritis in his back and some reduced
range of motion, Dr. Clayton opined that Rette could perform
a full range of medium work. Tr. at 99.
attended physical therapy in August and September 2015. Tr.
at 314-18. Rette reported intermittent back pain with
occasional sleep disturbance. Tr. at 315. An examination
noted good posture, normal gait, and some reduction in range
of motion. Tr. at 315-16.
five physical therapy visits, Rette's physical therapist,
John Wallace, issued a Medical Source Statement in September
2015. Tr. at 324-32. Wallace noted Rette's reduced range
of motion and slightly tender lumbar spine. Tr. at 325-26.
Wallace opined that Rette's pain was so severe that it
would frequently interfere with his attention and
concentration and it markedly limited Rette's ability to
tolerate stress at work. Tr. at 326. Wallace opined that
Rette could sit, stand, or walk for 15 minutes at a time, up
to two hours in an eight-hour workday, but that he would need
to alternate positions every 15 minutes. Tr. at 326-28.
Wallace also concluded that Rette would need to recline for
four hours in an eight-hour workday. Tr. at 328. Wallace
noted that the assessed limitations existed since July 2012.
Tr. at 331.
this time, Rette underwent a lumbar spine MRI which showed
mild to moderate lumbar spondylosis with superimposed disc
herniations but no significant canal stenosis. Tr. at 312-13.
David Clifford performed an orthopedic evaluation the
following month. Tr. at 333- 35. Dr. Clifford noted some
weakness in the tibialis anterior muscle but no numbness. Tr.
at 334. Dr. Clifford assessed lumbar spondylosis with
right-sided radiculopathy, for which he prescribed
medications. Id. He also suggested injections if
physical therapy did not improve Rette's symptoms. Tr. at
testified that he previously owned a company that installed
windows, doors, and awnings but stopped working in 2012. Tr.
at 36-37. He described his pain as constant but of varying
intensity. Tr. at 39. He relies on medications and lying down
to relieve his symptoms. Id. He has taken
medications and attended physical therapy to address his
symptoms. Tr. at 38.
estimated that he could sit for 30 minutes, stand for up to
20 minutes, and walk for 15 to 20 minutes. Tr. at 40. He
cannot perform these activities more than two hours in an
eight-hour workday. Tr. at 41. Rette estimated he cannot lift
more than 20 pounds. Id.
contends that ALJ Harper erred by finding that his
impairments did not meet or medically equal the requirements
of Listing 1.04. The Commissioner maintains that the
evidentiary record supports the ALJ Harper's finding. The
court finds that ALJ Harper properly found that Rette's
impairments did not satisfy the requisite criteria of the
Listing because the evidence does not establish that his
spinal condition caused a compromise of the spinal cord or a
nerve root and associated symptoms.
Overview of Listing of Impairments
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”).
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
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 Fed.Appx. 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.
Harper found that Rette's impairments did not meet or
medically equal a listing in Section 1.00 (Musculoskeletal
System). Tr. at 23. Rette contends that ALJ Harper erred by
not finding 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 ...