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Sharpton v. Berryhill

United States District Court, D. Minnesota

September 25, 2017

Steven Gale Sharpton, Plaintiff,
v.
Nancy A. Berryhill, [1] Acting Commissioner of Social Security, Defendant.

          Gerald S. Weinrich, Weinrich Law Office, (for Plaintiff).

          Gregory G. Brooker, Acting United States Attorney, United States Attorney's Office, (for Defendant).

          ORDER

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff 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).

         This 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.

         II. PROCEDURAL HISTORY

         Plaintiff 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.)

         The ALJ 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.

         III. ANALYSIS

         Disability 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. § 404.1512(a).

         A. ALJ'S Decision

         Disability 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. 2010).

         In 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. 29-31.)

         B. Issues for Review

         Plaintiff 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.

         C. Standard of Review

         This 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.

         D. Listing 1.04

         Consistent 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).

         “To 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.

         Plaintiff 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.

         Addressing 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 reflex loss.

         The 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. 25-27.)

         Motor 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.

         E. Plaintiff's Credibility

         Next, 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 subjective complaints.

         1. ...


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