Effective Date: September 23, 2015
Publication Date: September 23, 2015
Federal Register Vol. 80, No. 184, page 57418

ACQUIESCENCE RULING 15-1(4)

Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013): Standard for Meeting Section 1.04A of the Listing of Impairments — Disorders of the Spine with Evidence of Nerve Root Compression — Titles II and XVI of the Social Security Act.

ISSUE: Must all of the medical criteria in section 1.04A of the Listing of Impairments be simultaneously present on examination and continue, or be expected to continue, to be simultaneously present for at least 12 months for a disorder of the spine to meet the listing?

STATUTE/REGULATION/RULING CITATION: Sections 205(b), 223(d)(1)(A); 223(d)(2)(A); 223(d)(5)(A); 1614(a)(3)(A); 1614(a)(3)(B); 1614(a)(3)(H)(i) of the Social Security Act (42 U.S.C. 423(d)(1)(A); 423(d)(2)(A); 423(d)(5)(A); 1382c(a)(3)(A); 1382c(a)(3)(B); 1382c(a)(3)(H)(i)); 20 CFR 404.1509, 404.1520(a)(4)(iii), 404.1520(d), 404.1525, 416.909, 416.920(a)(4)(iii), 416.920(d); 416.925; 20 CFR Part 404, Subpart P, Appendix 1, 1.04A.

CIRCUIT: Fourth (Maryland, North Carolina, South Carolina, Virginia, and West Virginia).

APPLICABILITY OF RULING: This ruling applies to determinations or decisions made in the Fourth Circuit at all levels of administrative review.

DESCRIPTION OF CASE: Jimmy Radford injured his back at work in December 2002 and underwent decompression and fusion surgery in August 2007. The administrative record included reports of examinations by various physicians and other medical sources. These reports over a five-year period showed the presence of all the medical criteria listed in listing 1.04A (20 CFR Part 404, Subpart P, Appendix 1, 1.04A), but did not show them simultaneously for a 12-month period. Mr. Radford applied for disability insurance benefits in June 2007. After a hearing, an administrative law judge (ALJ) found that Mr. Radford's impairments did not meet or medically equal any listed impairment, including listing 1.04. The ALJ noted that the State agency physicians who evaluated Mr. Radford's claim initially and on reconsideration had also concluded that Mr. Radford's impairments did not meet or equal the requirements of a listing. The ALJ found that Mr. Radford was not disabled at the fifth step of our sequential evaluation process at any time from his alleged onset date in December 2002 through his date last insured of December 31, 2007.

Mr. Radford sought judicial review in the United States District Court for the Eastern District of North Carolina. The district court found that listing 1.04A required only that his spinal stenosis be “characterized by” certain clinical signs and symptoms and held that the listing did not require that all of the clinical signs or symptoms be documented as present simultaneously. The district court found that Mr. Radford had shown evidence of each of the required criteria and that the ALJ did not correctly apply the regulations. The district court further held that the evidence compelled the conclusion that Mr. Radford's impairment met listing 1.04A and ordered an award of benefits.

The Commissioner appealed the district court's decision to the United States Court of Appeals for the Fourth Circuit. The court of appeals held that the district court did not err in interpreting listing 1.04A, but it vacated the district court's judgment because the decision to direct an award of benefits was an abuse of discretion. The court found that the text of listing 1.04A required evidence of nerve root compression “characterized by” the listed medical criteria and that the use of the word “and” to connect them meant that they all must be present in the claimant. The court stated that the text of the regulation did not specify when the medical criteria must be present and did not say that they must be present at the same time or that they must be present within a certain proximity of one another. Thus, the court held that the regulatory structure did not require the simultaneous presence of all of the listed criteria over a 12-month period. Rather, the listing required a “more free-form, contextual inquiry that makes 12 months the relevant metric for assessment of the claimant's duration of disability.” 734 F.3d at 293. Accordingly, the court of appeals held that “Listing 1.04A requires a claimant to show only … 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.” Id. at 294. The court further held that 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 condition. Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity.” Id. Although the court of appeals held that the Commissioner's interpretation of listing 1.04A was not correct, the court nevertheless vacated the district court's judgment because the court should have remanded the case with instructions for the ALJ to clarify why Mr. Radford's impairment did not satisfy listing 1.04A.

STATEMENT AS TO HOW RADFORD DIFFERS FROM THE AGENCY'S POLICY:

At step three of the sequential evaluation process, we will find a claimant disabled if the claimant has an impairment that meets or equals one of the listed impairments and meets the duration requirement. 20 CFR 404.1520(a)(4)(iii), 404.1525(c)(3), 416.920(a)(4)(iii), 416.925(c)(3). Thus, in considering whether an impairment meets or equals a listed impairment, we consider both the severity of the impairment, in light of the set of medical criteria in the listing, and the duration requirement. Claimants found disabled under the listings at step three of the sequential evaluation process have impairments that we consider severe enough to prevent any gainful activity, regardless of the claimant's age, education, or work experience. Our policy is that listing 1.04A specifies a level of severity that is only met when all of the medical criteria listed in paragraph A are simultaneously present: (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) if there is involvement of the lower back, positive straight-leg raising test (sitting and supine). Listing 1.04A uses the conjunction “and” when enumerating the medical criteria in order to establish that the entire set of criteria must be present at the same time on examination. When this set of criteria is present on examination, the individual has the clinical presentation we expect from a person who suffers from nerve root compression that is so severe that it would preclude any gainful activity. 20 CFR 404.1525(a), 416.925(a).

On the other hand, 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 would not rise to the level of severity required by listing 1.04A. An individual who shows only some of the criteria on examination presents a different, less severe clinical picture than someone with the full set of criteria present simultaneously. To meet the severity required by the listing, our policy requires the simultaneous presence of all of the medical criteria in listing 1.04A.

In addition to meeting the severity requirement, in order to meet the duration requirement, the simultaneous presence of all of the medical criteria in paragraph A must continue, or be expected to continue, for a continuous period of at least 12 months. 20 CFR 404.1525(c)(4), 416.925(c)(4). The “duration” requirement follows from two provisions in the Social Security Act. First, sections 223(d)(1)(A) and 1614(a)(3)(A) of the Act define “disability” 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.” Second, sections 223(d)(2)(A) and 1614(a)(3)(B) of the Act state that &ldquo[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” Thus, an impairment that lasts or is expected to last 12 months is not sufficient to establish disability. The impairment must also be severe enough to prevent the claimant from engaging in substantial gainful work. As the Supreme Court of the United States explained in Barnhart v. Walton, 535 U.S. 212, 218 (2002): “In other words, the statute, in the two provisions, specifies that the ‘impairment’ must last 12 months and also be severe enough to prevent the claimant from engaging in any ‘substantial gainful work.’”

Accordingly, our policy requires that for a disorder of the spine to meet listing 1.04A at step three in the sequential evaluation process, the claimant must establish the simultaneous presence of all the medical criteria in paragraph A. Once this level of severity is established, the claimant must also show that this level of severity continued, or is expected to continue, for a continuous period of at least 12 months. The court of appeals' decision differs from our policy because it held that listing 1.04A required a claimant to show only “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.” 734 F.3d at 294. Contrary to our policy that the requisite level of severity requires the simultaneous presence of all the medical criteria in paragraph A, the court of appeals held that a claimant need not show that each criterion was present simultaneously or in particularly close proximity. Accordingly, this holding is inconsistent with our interpretation of listing 1.04A and of the severity and durational requirements at step three of the sequential evaluation process.

EXPLANATION OF HOW WE WILL APPLY RADFORD WITHIN THE CIRCUIT:

This Ruling applies only to claims in which the claimant resides in Maryland, North Carolina, South Carolina, Virginia, or West Virginia at the time of the determination or decision at any level of administrative review.

In these States, in deciding whether a claimant's severe medically determinable disorder of the spine meets listing 1.04A, adjudicators will not require that all of the medical criteria in paragraph A appear simultaneously or in particularly close proximity. Rather, adjudicators will engage in what the court of appeals described as “a more free-form, contextual inquiry that makes 12 months the relevant metric for the assessment of the claimant's duration of disability.” Adjudicators will decide whether the evidence shows that all of the medical criteria in paragraph A are present within a continuous 12-month period (or, if there is less than 12 months of evidence in the record, that all the medical criteria are present and are expected to continue to be present). If all of the medical criteria are not present within a continuous 12-month period, adjudicators will determine that the disorder of the spine did not meet the listing.

If all of the medical criteria in paragraph A are present within a continuous 12-month period (or are expected to be present), adjudicators will then determine whether the evidence shows—as a whole—that the claimant's disorder of the spine caused, or is expected to cause, nerve root compression continuously for at least 12 months. In considering the severity of the nerve root compression, the medical criteria in paragraph A need not all be present simultaneously, nor in particularly close proximity. The nerve root compression must be severe enough, however, that the adjudicator can fairly conclude that it is still characterized by all of the medical criteria in paragraph A.

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