Jimmy Radford v. Carolyn Colvin ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1021
JIMMY RADFORD,
Plaintiff - Appellee,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cv-00347-BO)
Argued: September 17, 2013 Decided: October 29, 2013
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Davis wrote the
opinion, in which Judge Gregory and Judge Keenan joined.
ARGUED: Samantha Lee Chaifetz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. Charlotte Williams
Hall, CHARLES T. HALL LAW FIRM, Raleigh, North Carolina, for
Appellee. ON BRIEF: David F. Black, General Counsel, Gabriel R.
Deadwyler, Attorney, SOCIAL SECURITY ADMINISTRATION, Baltimore,
Maryland; Thomas G. Walker, United States Attorney, Raleigh,
North Carolina, Stuart F. Delery, Principal Deputy Assistant
Attorney General, Michael S. Raab, Attorney, Sparkle L.
Sooknanan, Attorney, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.
DAVIS, Circuit Judge:
Jimmy Radford applied for social security disability
benefits after he sustained an injury to his back. An
Administrative Law Judge (ALJ) denied Radford’s claim, finding,
among other things, that he was not disabled because his back
impairment did not “meet or equal” Listing 1.04A, the regulation
identifying disorders of the spine that merit a conclusive
presumption of disability and an award of benefits. 20 C.F.R.
Part 404, Subpart P, App. 1 § 1.04A. After the Appeals Board
denied his request for review, Radford sought judicial review of
the ALJ’s decision in federal district court in North Carolina.
And he won: the district court found that “the evidence as a
whole compels a conclusion” that Radford met Listing 1.04A; it
reversed the decision of the ALJ as unsupported by substantial
evidence; and it took the extra step of remanding the case for
an award of benefits.
Carolyn Colvin, the Acting Commissioner of Social Security,
contends on appeal that the district court applied the wrong
legal standard in ruling that Radford’s condition met or equaled
Listing 1.04A, and that it erred in remanding with instructions
to award benefits.
We hold that the district court did not err in its
application of Listing 1.04A; however, we vacate the judgment of
the district court because its decision to direct the ALJ to
2
award benefits was an abuse of discretion. We order a remand to
the agency for further proceedings.
I.
Title II of the Social Security Act “provides for the
payment of insurance benefits to persons who have contributed to
the program and who suffer from a physical or mental
disability.” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The
Commissioner uses a five-step process for evaluating claims for
disability benefits. 20 C.F.R. § 404.1520(a)(4); Hancock v.
Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner
asks whether the claimant: (1) worked during the purported
period of disability; (2) has an impairment that is
appropriately severe and meets the duration requirement; (3) has
an impairment that meets or equals the requirements of a
“listed” impairment and meets the duration requirement; (4) can
return to her past relevant work; and (5) if not, can perform
any other work in the national economy. Hancock, 667 F.3d at
472-3. The claimant has the burden of production and proof at
Steps 1–4. Id.
This case involves Step 3, the “listed” impairments step. 1
1
Although the ALJ made findings with regard to the other
steps, the parties do not discuss, and we need not consider, the
remaining steps because "[i]f a determination of disability can
be made at any step, the Commissioner need not analyze
subsequent steps." Hancock, 667 F.3d at 473.
3
The Social Security Administration has promulgated
regulations containing “listings of physical and mental
impairments which, if met, are conclusive on the issue of
disability.” McNunis v. Califano, 605 F.2d 743, 744 (4th Cir.
1979). A claimant is entitled to a conclusive presumption that
he is impaired if he can show that his condition “meets or
equals the listed impairments.” Bowen v. City of New York, 476
U.S. 467, 471 (1986). 2
At issue in this case is the listing that covers disorders
of the spine: A claimant is entitled to a conclusive presumption
that he is disabled if he can show that his disorder results in
compromise of a nerve root or the spinal cord. 20 C.F.R. Part
404, Subpart P, App. 1, § 1.04. Listing 1.04A further describes
the criteria a claimant must meet or equal to merit a conclusive
presumption of disability arising out of compromise of a nerve
root or the spinal cord:
[e]vidence of nerve root compression characterized by
[1] neuro-anatomic distribution of pain, [2] limitation
of motion of the spine, [3] 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, [4] positive straight-
leg raising test (sitting and supine)[.]
2
If the claimant’s impairments are not listed, he still
qualifies for benefits if he shows that he cannot perform his
past work, and cannot – in light of his residual functional
capacity, age, education, and work experience - perform other
work. Bowen, 476 U.S. at 471.
4
20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A. It is the
assessment of these criteria at the root of this appeal.
II.
Radford worked as a tree trimmer. In December 2002, when he
was 38, he sustained an injury lifting part of a tree at work
and sought emergency medical care for pain in his lower back,
legs, and knees. The treating physician diagnosed a back sprain
and discharged Radford with medication.
Over the next five years, Radford consulted several doctors
who collectively observed – at various points in time –
different symptoms of nerve root compression present in Radford.
In June 2007, Radford applied for social security
disability benefits. A state agency medical consultant found
that Radford had “discogenic” 3 and “degenerative” “disorders of
the back,” but concluded that Radford was not disabled within
the meaning of the Social Security Act. (A.R. 52.) A second
consultant concurred.
The ALJ denied Radford’s claim. The ALJ found that Radford
had two severe impairments - lumbar degenerative disc disease
and chronic obstructive pulmonary disorder - but that neither
qualified as an impairment under Listings 1.04A (disorders of
3
“Discogenic” means “caused by derangement of an
intervertebral disk.” Dorland’s Medical Dictionary for Health
Consumers (2007).
5
the spine) or 3.02 (chronic pulmonary insufficiency), and
neither constituted any other type of impairment listed under
sections 1.00 (musculoskeletal), 3.00 (respiratory system),
11.00 (neurological), and 13.00 (malignant neoplastic diseases).
The ALJ provided no basis for his conclusion, except to say that
he had “considered, in particular,” the listings above, and had
noted that state medical examiners had also “concluded after
reviewing the evidence that no listing [was] met or equaled.”
(A.R. 17).
The ALJ also found that Radford would be unable to continue
working as a tree trimmer, but that he could work as a food and
beverage order clerk, surveillance system monitor, or addresser.
Thus, the ALJ concluded that Radford was not disabled within the
meaning of the Act.
The Appeals Council declined Radford’s request for review,
rendering the ALJ’s decision final.
Radford sought judicial review in federal court, asserting
that the ALJ had erred by finding that Radford had not
established that he met or equaled the Listing 1.04 impairments.
Radford v. Astrue, 2012 WL 3594642, at *1 (E.D.N.C. Aug. 20,
2012). On cross-motions for judgment on the pleadings, Fed. R.
Civ. P. 12(c), the district court agreed with Radford,
concluding that the ALJ’s determination that he had “not [met]
Listing 1.04 [was] not supported by substantial evidence”
6
because the ALJ’s opinion failed to apply the requirements of
the listings to the medical record. Id. at *2. The district
court further concluded that the extensive medical record showed
that Radford fell within Listing 1.04A because all of the
required medical findings were present in Radford’s extensive
medical record. Id. at *3. Accordingly, the district court
reversed the decision of the ALJ and remanded the case with
instructions to award benefits. Id.The district court denied the Commissioner’s motion for
reconsideration, and the Commissioner timely appealed.
III.
The Commissioner contends that the district court
“improperly substituted its own view” of the Social Security
Administration’s regulations for that of the Commissioner by
effectively interpreting Listing 1.04A to require that the
listed criteria “be present intermittently at some point in the
medical record.” (App. Br. 24) (emphasis added). Instead, the
Commissioner argues that the listed signs and symptoms must be
“simultaneously present” “over a period of time sufficient to
establish that the impairment has lasted or can be expected to
last at listing-level severity for a continuous period of at
least twelve months.” (App. Br. 22, 27) (emphasis added). She
contends that the ALJ applied the standard correctly in
concluding that Radford did not meet Listing 1.04A.
7
In apparent recognition of the novelty of this
interpretation, counsel for the Commissioner retreated from it
during oral argument. The Commissioner’s (somewhat) modified
contention is that Listing 1.04A contains a proximity-of-
findings requirement: To meet or equal Listing 1.04A, the
claimant has the burden of producing evidence that his nerve
root compression is characterized by sufficiently proximate (and
perhaps simultaneous) medical findings of (1) neuro-anatomic
distribution of pain, (2) limitation of motion of the spine, (3)
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss, and (4)
positive straight-leg raising test.
The Commissioner’s contention is unpersuasive. The
interpretation advanced is not supported by the text or
structure of the regulation. We therefore reject the
Commissioner’s invitation to read an additional proximity-of-
findings requirement into Listing 1.04A. Because this appeal
turns on construction of an administrative regulation, we review
the district court’s ruling de novo. Precon Dev. Corp., Inc. v.
U.S. Army Corps of Engineers, 633 F.3d 278, 289-90 (4th Cir.
2011) (observing that statutory construction is a “question of
law”).
The first step in construing a regulation is to consider
the text, Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 878
8
(2011), and the text here does not contain a requirement
governing when symptoms must present in the claimant. Listing
1.04A provides that certain “disorders of the spine” are among
the impairments conclusively establishing disability. It
requires only “[e]vidence of nerve root compression
characterized by” – i.e., distinguished by - the four symptoms.
20 C.F.R. Part 404, Subpart P, App. 1, § 1.04A; Merriam
Webster’s Collegiate Dictionary 192 (10th ed. 1997)
(“characteristic”). The use of “and” to connect the four
symptoms means that all of the symptoms must be present in the
claimant, but the provision does not specify when they must be
present. And it certainly does not say that they must be present
at the same time, see Merriam Webster’s Collegiate Dictionary
1094 (10th ed. 1997) (defining “simultaneous” as “existing or
occurring at the same time”), or that they must be present
within a certain proximity of one another.
The regulation does not specify when the findings must be
present because it does not need to: The regulation already
imposes a duration requirement on the claimant. See
Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466,
471 (4th Cir. 2011) (stating that the Court may "discover the
plain meaning” of a regulation by looking at its structure).
Under Step 3, the regulation states that a claimant will be
found disabled if he or she has an impairment that “[1] meets or
9
equals one of our listings in appendix 1 of this subpart and [2]
meets the duration requirement.” 20 C.F.R. § 404.1520(a)(4)(iii)
(emphasis added). The critical durational inquiry for purposes
of awarding benefits is whether the impairment has lasted or is
expected to last “for a continuous period of at least 12
months.” 20 C.F.R. § 404.1509 (“How long the impairment must
last”). This language mirrors that of the statute: The Social
Security Act provides benefits for claimants with a
“disability,” defined as an
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) (emphasis added). The duration
requirement thus screens out claimants with impairments that
have not lasted and cannot be expected to last for a continuous
year or more.
The Commissioner seeks a bright line rule specifying when
and how Listing 1.04A’s symptoms must present in the claimant,
but the regulatory structure eschews such a rule in favor of a
more free-form, contextual inquiry that makes 12 months the
relevant metric for assessment of the claimant’s duration of
disability. Neither the text nor the structure of the regulation
reveal an intent to layer a more stringent proximity-of-findings
10
requirement on top of the durational requirement. And that makes
sense: It would be peculiarly redundant to require that a
claimant prove that his impairment will last or has lasted at
least 12 months and that he produce medical examinations showing
that each symptom in Listing 1.04A presents either
simultaneously or in sufficiently close proximity such that an
ALJ could conclude that the claimant’s impairment will last or
has lasted at least 12 months. We reject such a redundant
construction of the regulation. See PSINet, Inc. v. Chapman, 362
F.3d 227, 232 (4th Cir. 2004) (observing that courts typically
“reject constructions that render a term redundant”).
With no basis in text or structure, the Commissioner seeks
to defend her interpretation by invoking agency deference.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984). There are two problems with this. First,
other than the un-cited proposition in its brief, the
Commissioner points to no other authority – no Social Security
Ruling, no regulation, no letter or agency memorandum – that
suggests that the Commissioner has ever adopted a proximity-of-
findings requirement until her briefing to this Court. We thus
cannot conclude that the interpretation advanced reflects the
“fair and considered judgment” of the Commissioner; instead, it
reads more like a litigating position or “a post hoc
rationalization.” Christopher v. SmithKline Beecham Corp., 132
11
S. Ct. 2156, 2166-67 (2012) (internal citations and quotations
omitted).
Second, the Court declines to defer to the Commissioner’s
interpretation because it is plainly inconsistent with the text
and structure of the regulation. Id. Listing 1.04A says nothing
about a claimant’s need to show that the symptoms present
simultaneously in the claimant or in close proximity to one
another. (And the Commissioner points to no federal circuit
court that has ever adopted this view.) It is unambiguous. “An
agency’s interpretation of a regulation is not entitled to
deference where the regulation's meaning is unambiguous,” Anim
v. Mukasey, 535 F.3d 243, 254 (4th Cir. 2008); the
Commissioner’s interpretation of Listing 1.04A is therefore not
entitled to deference. See Pitzer v. Sullivan, 908 F.2d 502, 505
(9th Cir. 1990) (rejecting the agency's attempt to add new
requirements to a medical listing contrary to the plain text of
the regulation).
We hold that Listing 1.04A requires a claimant to show only
what it requires him to show: 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
12
condition. Nor need a claimant show that the symptoms were
present in the claimant in particularly close proximity. As the
Commissioner recognizes, “abnormal physical findings may be
intermittent,” but a claimant may nonetheless prove a chronic
condition by showing that he experienced the symptoms “over a
period of time,” as evidenced by “a record of ongoing management
and evaluation.” (App. Br. 25) (quoting 20 C.F.R. Part 404,
Subpart P, 1.00D). To require proximity of findings would read a
new requirement into the listing that is unsupported by the
text, structure, medical practice, or common sense, and we
decline to do so.
IV.
Although we hold that the district court did not apply the
wrong legal standard, we nonetheless vacate its judgment because
it chose the wrong remedy: Rather than “reversing” the ALJ and
remanding with instructions to award benefits to Radford, the
district court should have vacated and remanded with
instructions for the ALJ to clarify why Radford did not satisfy
Listing 1.04A.
Like us, the district court reviews the record to ensure
that the ALJ’s factual findings are supported by substantial
evidence and that its legal findings are free of error.
Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d 319, 322 (4th
Cir. 2013). If the reviewing court decides that the ALJ’s
13
decision is not supported by substantial evidence, it may
affirm, modify, or reverse the ALJ’s ruling “with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
A necessary predicate to engaging in substantial evidence
review is a record of the basis for the ALJ’s ruling. See Gordon
v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). The 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. Hines v. Bowen, 872
F.2d 56, 59 (4th Cir. 1989). If the reviewing court has no way
of evaluating the basis for the ALJ’s decision, then “the proper
course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.” Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 744 (1985). There are,
however, exceptions to that. See Breeden v. Weinberger, 493 F.2d
1002, 1011-12 (4th Cir. 1974) (reversing for award of benefits
where case was quite old, record had no need to be reopened, and
the case had already been on appeal once before). We review the
district court’s choice of remedy - to affirm, modify, or
reverse - for abuse of discretion. Id.We conclude that the district court abused its discretion
in directing an award of benefits rather than remanding for
further explanation by the ALJ of why Radford does not meet
Listing 1.04A. The ALJ’s decision regarding the applicability of
14
Listing 1.04A is devoid of reasoning. He summarily concluded
that Radford’s impairment did not meet or equal a listed
impairment, but he provided no explanation other than writing
that he “considered, in particular,” a variety of listings,
including Listing 1.04A, and noting that state medical examiners
had also concluded “that no listing [was] met or equaled.” (A.R.
16–17). This insufficient legal analysis makes it impossible for
a reviewing court to evaluate whether substantial evidence
supports the ALJ’s findings. See Cook v. Heckler, 783 F.2d 1168,
1173 (4th Cir. 1986) (reversing and remanding when ALJ “failed
to compare [the claimant’s] symptoms to the requirements of any
of the four listed impairments, except in a very summary way”).
A full explanation by the ALJ is particularly important in this
case because Radford’s medical record includes a fair amount of
evidence supportive of his claim, Murphy v. Bowen, 810 F.2d 433,
437 (4th Cir. 1987); indeed, there are five years of medical
examinations, and there is probative evidence strongly
suggesting that Radford meets or equals Listing 1.04A.
The ALJ cited the state medical opinions in support of his
conclusion, but that is not enough to constitute “substantial
evidence.” Even if the ALJ’s exclusive citation to those
opinions indicates the (apparently very high) evidentiary weight
he placed on them, it does not indicate why the opinions merit
that weight. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir.
15
1995) (holding that reliance on the opinion of nonexamining
physicians cannot, by itself, constitute substantial evidence).
Moreover, the ALJ appeared to totally – and without explanation
- reject the opinions of Radford’s treating physicians in favor
of the state medical examiners; this raises red flags because
the state medical opinions are issued by non-examining
physicians and are typically afforded less weight than those by
examining and treating physicians. See 20 C.F.R. § 404.1527(c)
(providing that medical opinions from examining and treating
physicians are given more weight than those of non-examining,
non-treating physicians).
The district court reasoned that remand was futile because
the ALJ’s decision regarding Listing 1.04A was not supported by
substantial evidence, Radford’s case has been pending for some
time, and the evidence actually compelled the conclusion that
Radford met the listing. Radford, 2012 WL 3594642, at *3. The
Commissioner, however, correctly notes that “there is at least
conflicting evidence in the record” as to whether Radford
satisfied the listing. (App. Br. 25). For example, the record
contains instances where Radford showed limited motion of the
spine on at least four occasions, positive straight leg raises
at least five times, and sensory or reflex loss on at least
three occasions. But the record also shows that Radford
exhibited no weakness, sensory loss, or limitation of motion
16
during some examinations, and Dr. Kushner opined more than once
that Radford’s pain was inconsistent with his physical findings.
Given the depth and ambivalence of the medical record, the
ALJ’s failure to adequately explain his reasoning precludes this
Court and the district court from undertaking a “meaningful
review” of the finding that Radford did not satisfy Listing
1.04A. Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
Just as it is not our province to “reweigh conflicting evidence,
make credibility determinations, or substitute our judgment for
that of the [ALJ],” Hancock, 667 F.3d at 472 (alteration in
original), it is also not our province – nor the province of the
district court – to engage in these exercises in the first
instance.
V.
For the reasons set forth, the judgment is vacated and
this case is remanded with instructions that the district court
remand the case for further proceedings before the agency.
VACATED AND REMANDED
17