United States District Court, D. Minnesota
S. Weinrich, Weinrich Law Office, (for Plaintiff).
Gregory G. Brooker, Acting United States Attorney, United
States Attorney's Office, (for Defendant).
N. LEUNG UNITED STATES MAGISTRATE JUDGE.
Steven Gale Sharpton brings the present case, contesting
Defendant Commissioner of Social Security's denial of his
application for disability insurance benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 401 et seq. The parties have
consented to a final judgment from the undersigned United
States Magistrate Judge in accordance with 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and D. Minn. LR 72.1(c).
matter is before the Court on the parties' cross-motions
for summary judgment. (ECF Nos. 11, 13.) Being duly advised
of all the files, records, and proceedings herein, IT
IS HEREBY ORDERED that Plaintiff's motion for
summary judgment (ECF No. 11) is DENIED and
the Commissioner's motion for summary judgment (ECF No.
13) is GRANTED.
applied for DIB in March 2013, asserting that he has been
disabled since February 2012, due to, among other things, a
back impairment. (Tr. 19, 60, 68, 69, 78.) Plaintiff's
DIB application was denied initially and again upon
reconsideration. (Tr. 19, 67, 68, 77, 78.) Plaintiff appealed
the reconsideration of his DIB determination by requesting a
hearing before an administrative law judge
(“ALJ”). (Tr. 19, 94-97.)
held a hearing in September 2014. (Tr. 19, 36, 38.) After
receiving an unfavorable decision from the ALJ, Plaintiff
requested review from the Appeals Council, which denied his
request for review. (Tr. 1-3, 12-14, 16-35.) Plaintiff then
filed the instant action, challenging the ALJ's decision.
(Compl., ECF No. 1.) The parties have filed cross motions for
summary judgment. (ECF Nos. 11, 13.) This matter is now fully
briefed and ready for a determination on the papers.
benefits are available to individuals who are determined to
be under a disability. 42 U.S.C. § 423(a)(1); 20 C.F.R.
§ 404.315. An individual is considered to be disabled if
he is unable “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); see 20 C.F.R. § 404.1505(a). This
standard is met when a severe physical or mental impairment,
or impairments, renders the individual unable to do his
previous work or “any other kind of substantial gainful
work which exists in the national economy” when taking
into account his age, education, and work experience. 42
U.S.C. § 423(d)(2)(A); see 20 C.F.R. §
404.1505(a). In general, the burden of proving the existence
of disability lies with the claimant. 20 C.F.R. §
is determined according to a five-step, sequential evaluation
process. 20 C.F.R. § 404.1520(a)(4).
To determine disability, the ALJ follows the familiar
five-step process, considering whether: (1) the claimant was
employed; (2) he was severely impaired; (3) h[is]
impairment was, or was comparable to, a listed impairment;
(4) he could perform past relevant work; and if not, (5)
whether he could perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.
relevant part, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since his alleged onset date
and his degenerative disk disease constituted a severe
impairment. (Tr. 21.) The ALJ concluded that this impairment
did not meet or medically equal a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1, including Listing
1.04. (Tr. 23.) After finding that Plaintiff's subjective
complaints were not fully credible and giving little weight
to Jerry Davis, M.D., Plaintiff's treating physician, the
ALJ determined that Plaintiff had the residual functional
capacity to perform light work with additional limitations.
(Tr. 24-29.) The ALJ then found that Plaintiff was capable of
performing his past relevant work as a security guard and
ultimately concluded that Plaintiff was not disabled. (Tr.
Issues for Review
challenges the ALJ's decision on three grounds. Plaintiff
asserts that the ALJ (1) erred in determining that his
degenerative disk disease did not meet Listing 1.04; (2)
improperly assessed his credibility; and (3) did not give
appropriate weight to the opinion of his treating physician.
Standard of Review
Court reviews whether the ALJ's decision is supported by
substantial evidence in the record as a whole. Boettcher
v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
“Substantial evidence means less than a preponderance
but enough that a reasonable person would find it adequate to
support the decision.” Id. This standard
requires the Court to “consider both evidence that
detracts from the [ALJ's] decision and evidence that
supports it.” Id. The ALJ's decision
“will not [be] reverse[d] simply because some evidence
supports a conclusion other than that reached by the
ALJ.” Id.; accord Perks v. Astrue,
687 F.3d 1086, 1091 (8th Cir. 2012). “The court must
affirm the [ALJ's] decision if it is supported by
substantial evidence on the record as a whole.”
Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016)
(quotation omitted). Thus, “[i]f, after reviewing the
record, the court finds it is possible to draw two
inconsistent positions from the evidence and one of those
positions represents the ALJ's findings, the court must
affirm the ALJ's decision.” Perks, 687
F.3d at 1091 (quotation omitted); accord Chaney, 812
F.3d at 676.
with the sequential nature of the disability evaluation
process, the Court begins with Plaintiff's challenge to
the ALJ's determination that his degenerative disk
disease did not meet Listing 1.04. “[T]he listings were
designed to operate as a presumption of disability that makes
further inquiry unnecessary.” Sullivan v.
Zebley, 493 U.S. 521, 532 (1990); accord Lott v.
Colvin, 772 F.3d 546, 549 (8th Cir. 2014); see
20 C.F.R. § 404.1520(d) (“If you have an
impairment(s) which meets the duration requirement and is
listed in appendix 1 . . ., we will find you disabled without
considering your age, education, and work
experience.”). When a severe impairment meets or equals
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1, “the claimant is conclusively presumed
to be disabled.” Bowen v. Yuckert, 482 U.S.
137, 141 (1987).
meet a listing, a claimant must show that he or she meets all
of the criteria for the listed impairment.”
Blackburn v. Colvin, 461 F.3d 853, 858 (8th Cir.
2014) (citing Zebley, 493 U.S. at 531); accord
KKC ex. rel. Stoner v. Colvin, 818 F.3d 364, 370 (8th
Cir. 2016) (“An impairment meets a listing only if it
meets all of the specified medical criteria.”)
(quotation omitted). “Merely being diagnosed with a
condition named in a listing and meeting some of the criteria
will not qualify a claimant for presumptive disability under
the listing.” McCoy v. Astrue, 648 F.3d 605,
611-12 (8th Cir. 2011). Stated differently, “[a]n
impairment that manifests only some of the list criteria, no
matter how severely, does not qualify.” Lott,
772 F.3d at 549 (quotation omitted). The claimant bears the
burden of establishing that he meets all the criteria of the
relevant listing. Blackburn, 761 F.3d at 858.
asserts that his degenerative disk disease meets Listing
1.04A. Listing 1.04A requires that a spinal disorder such as
degenerative disk disease be accompanied by
[e]vidence 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, Subpart P, Appendix 1, § 1.04A. The
requisite level of severity “is only met when all of
the medical criteria listed . . . are simultaneously
present.” Social Security Acquiescence Ruling (AR)
15-1(4), Radford v. Colvin: Standard for Meeting the
Listing for Disorders of the Spine With Evidence of Nerve
Root Compression, 80 Fed. Reg. 57418-02, 57420 (Sept.
23, 2015) [hereinafter AR 15-1(4)]; accord Atkins v.
Colvin, No. 15-1168-JWL, 2016 WL 2989393, at *12 (D.
Kan. May 24, 2016); see Banks v. Colvin, No.
15-cv-01040-CJW, 2017 WL 382239, at *6 (N.D. Ia. Jan. 26,
2017), appeal filed, No. 17-1648 (8th Cir.
Mar. 28, 2017). Thus, “when the listing criteria are
scattered over time, wax and wane, or are present on one
examination but absent on another, the individual's nerve
root compression w[ill] not rise to the level of severity
required by listing 1.04A.” AR 15-1(4) at 57420.
three of Listing 1.04A's four criteria, Plaintiff asserts
that he has experienced “pain and numbness radiating
into his lower extremities”; limited “range of
motion of the spine because of pain”; and
“positive straight leg raise test[ing] on at least two
occasions.” (Pl.'s Mem. in Supp. at 20-21, ECF No.
12.) The Commissioner responds that Plaintiff has not met his
burden to show that he satisfies all of Listing
1.04A's criteria because he has not shown that he
exhibits the fourth: motor loss accompanied by sensory or
record reflects that Plaintiff injured his back in February
2012 while shoveling wet sawdust at his place of employment.
(See, e.g., Tr. 42, 263, 283.) A subsequent MRI
showed a disk bulge at ¶ 11-12, “causing mass
effect to [the] ¶ 5 nerve root.” (Tr. 271;
see Tr. 320-21; see also Tr. 347
(“[T]he MRI from 3/23/2012 shows L4-5 disk disease with
small eccentric disk herniation to the right, which is not
impinging on a nerve root.”), 368 (same).) Thereafter,
Plaintiff continued to seek treatment for low-back pain.
(See, e.g., Tr. 266, 269, 270, 279, 283, 285, 310,
340, 347, 356, 362, 368, 374, 376, 423, 431, 433, 436, 458.)
Plaintiff's treatment providers generally observed some
tenderness and restriction in his range of motion and noted
that he frequently changed positions while sitting. (See,
e.g., Tr. 264, 265, 269, 271, 273-74, 357, 375, 376,
436.) During these examinations, however, Plaintiff was noted
to have full muscle strength. (Tr. 264, 274, 280 (February,
April and May 2012); Tr. 346, 349, 367, 370 (August 2013);
Tr. 387, 419, 426 (January and April 2014); see Tr.
loss is defined in Listing 1.04A as “atrophy with
associated muscle weakness or muscle weakness.” 20
C.F.R. Part 404, Subpart P, Appendix 1, § 1.04A.
Plaintiff has not pointed to evidence in the record showing
that he experienced motor loss as a result of his
degenerative disk disease and the ALJ properly observed that
Plaintiff's examinations showed that he had full muscle
strength. Therefore, even assuming Plaintiff met the other
three criteria, Plaintiff has not met his burden to show that
all of Listing 1.04A's medical criteria are present.
See Blackburn, 761 F.3d at 858. The presence of some
but not all of the medical criteria is insufficient for
Plaintiff's degenerative disk disease to meet Listing
1.04A. See Banks, 2017 WL 382239, at *6
(“Therefore, whether claimant consistently or
episodically exhibited positive straight-leg raises, the
medical evidence fails to demonstrate she had the other
conditions necessary to meet or equal Listing
1.04(A).”); see also Lott, 772 F.3d at 549;
McCoy, 648 F.3d at 611-12. Based on the foregoing,
the ALJ did not err in concluding that Plaintiff's
degenerative disk disease did not meet Listing 1.04.
Plaintiff challenges the ALJ's assessment of his
credibility. Plaintiff argues that the intensity,
persistence, and limiting effects of his symptoms are
supported by the objective medical evidence, examinations and
observations of his treatment providers, and his testimony
regarding his activities. The Commissioner responds that the
ALJ gave good reasons for discounting Plaintiff's