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Bunch v. Berryhill

United States District Court, W.D. Kentucky

October 24, 2018

KERESA McGOWAN BUNCH PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge United States District Court

         This matter is before the Court on Plaintiff's Complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying her claim for Social Security disability benefits. Plaintiff's fact and law summaries is at Docket # 16, and Defendant's fact and law summary is at Docket # 21. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. (Docket # 10).

         Plaintiff makes two arguments. First, she argues that the administrative law judge (“ALJ”) erred in finding that her degenerative disc disease does not satisfy Listing § 1.04. Second, she argues that the ALJ erred in finding that her pain and other subjective symptoms allow performance of a limited range of light work. Because neither argument is persuasive, the Court will AFFIRM the Commissioner's final decision and DISMISS Plaintiff's complaint.

         The ALJ's Decision

         In denying Plaintiff's disability claim, the ALJ followed the familiar 5-step sequential evaluation process. First, the ALJ found that Plaintiff has not engaged in substantial gainful activity since July 2014, when she alleges she became disabled. (Administrative Record (“AR”), p. 201). Second, the ALJ found that Plaintiff has severe, or vocationally significant, degenerative disc disease and depression. (AR, p. 202). Third, the ALJ found that Plaintiff does not have an impairment satisfying the clinical criteria of any impairment listed in Appendix 1 of the regulations. (AR, p. 202). Particularly, her degenerative disc disease does not satisfy Listing § 1.04. (Id.). As required for all cases that advance beyond step 3, the ALJ determined Plaintiff's residual functional capacity (RFC). The ALJ determined that Plaintiff has an RFC to perform a limited range of light work. (AR, p. 204). Fourth, the ALJ found that Plaintiff is not disabled because she retains the ability to perform her past relevant work as a light fast food manager. (AR, p. 209). Fifth, the ALJ found, in the alternative, that Plaintiff is not disabled because she retains the ability to perform a significant number of light jobs in the national economy such as office helper, cashier, and mail clerk. (AR, p. 211). These jobs permit the worker to alternate sitting and standing at 30-minute intervals. (Id.).

         The ALJ did not err in finding that Plaintiff's degenerative disc disease does not satisfy Listing § 1.04.

         Plaintiff's first argument is that the ALJ erred in finding that her degenerative disc disease does not satisfy Listing § 1.04. Plaintiff carries the burden of proving that the medical criteria of a listed impairment are satisfied, and this burden is strictly construed because the Listing represents an automatic screening in of an impairment as per-se disabling (independently of any other medical or vocational consideration). See Sec'y of Health & Human Services v. Zebley, 493 U.S. 521, 530 (1990) (“An impairment that manifests only some of [a listed impairment's] criteria, no matter how severely, does not qualify”); Elam ex rel. Golay v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“It is insufficient that a claimant comes close to meeting the requirements of a listed impairment” to satisfy the Listing).

         Listing § 1.04 provides that the following disorder of the spine is per-se disabling:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. 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); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b.

         The ALJ found that Listing § 1.04(A) is not satisfied due to a lack of evidence of “motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss.” See ALJ's decision at AR, p. 202 (“[T]he undersigned notes full strength and normal sensory function in pain clinic notes [AR, p. 805] and the latest office visit to the treating neurosurgeon finds full strength and sensory function with no mention of straight-leg-raise test [AR, p. 847]”). The note relied upon by the ALJ at AR, p. 805 states, in pertinent part, as follows: “Strength in the upper and lower extremities is normal. … No evidence for sensory loss. … Deep Tendon Reflexes: Right Knee 2; Left Knee 2; Right Ankle 2; Left Ankle 2.” The note at AR, p. 847 states: “She has 5/5 strength in the lower extremities in all muscle groups. The patient has normal sensation and symmetric reflexes bilaterally. … There is 5/5 strength in the upper extremities bilaterally. Sensory exam is symmetric as are the upper extremity reflexes.” These notes cited by the ALJ are only representative examples showing a lack of motor loss accompanied by sensory or reflex loss. Similar examples can be found at AR, pp. 536, 549, 551, 553, 557, 570, 585, 592637, 639, 656, 662, 683, 714, 747, 767, 776, 818, 827, 847. Therefore, while Plaintiff may have, on occasion, exhibited positive straight-leg raising, her repeatedly normal strength, reflex, and sensory findings show that Listing § 1.04(A) is not satisfied.

         Plaintiff does not allege Listing § 1.04(B) is satisfied, and her fact and law summary (Docket # 16) does not mention “spinal arachnoiditis.” Plaintiff suggests that Listing § 1.04(C) is satisfied in light of “findings of spinal stenosis with pseudoclaudication, resulting in difficulties with ambulation.” (Docket # 16, p. 6). Assuming for the sake of argument that there is evidence of “lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, ” there is no evidence that it results in “inability to ambulate effectively, as defined in 1.00B2b.” Contrary to Plaintiff's suggestion, the latter requires more than simply “difficulties with ambulation.” 1.00B2b defines “inability to ambulate effectively” as “having insufficient lower extremity functioning … to permit independent ambulation without the use of a hand-held assistive ...


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