United States District Court, E.D. Arkansas, Jonesboro Division
ORDER REMANDING TO THE COMMISSIONER
Rodriguez (“Rodriguez”) applied for social
security disability benefits with an alleged disability onset
date of March 1, 2013. (R. at 288). The administrative law
judge (“ALJ”) denied her applications after a
hearing. (R. at 195). The Appeals Council denied review. (R.
at 1). The ALJ's decision now stands as the final
decision of the Commissioner, and Rodriguez has requested
judicial review. For the reasons stated below, the Court
recommends reversing and remanding the Commissioner's
The Commissioner's Decision:
found that Rodriguez had the severe impairments of
degenerative disk disease, arthritis, depression, and
anxiety; however, none of those severe impairments met or
medically equaled a listing. (R. at 186-187). The ALJ
concluded that Rodriguez's impairments left her with the
residual functional capacity (“RFC”) to perform
sedentary work except that she could lift ten pounds; sit for
six hours in an eight-hour workday at one to two hour
intervals; stand or walk for no more than two hours in an
eight-hour workday at half-hour intervals; perform work, for
the most part, in a seated position with the ability to
adjust, move about in the seat, and stand as needed;
occasionally climb, stoop, kneel, crouch, and crawl; perform
limited balancing and not work around unrestricted heights,
ladders, or scaffolds and not climb multiple stairs; perform
unskilled or semiskilled work; perform work with superficial
contact with supervisors, co-workers, and the public, such as
meeting and greeting, making change, and giving simple
instructions and directions related to the work performed.
(R. at 188).
four, the ALJ concluded that Rodriguez's RFC allowed her
to return to her past relevant work as a billing clerk. (R.
at 194). Nevertheless, the ALJ called a vocational expert
(“VE”), who testified that Rodriguez's RFC
also would allow her to perform other jobs, including as
food/beverage order clerk or call out operator. (R. at 195).
Thus, the ALJ held that Rodriguez was not disabled. (R. at
argues that the ALJ: (1) failed to consider whether her
impairments met or medically equaled Listing 1.04(a); (2)
failed to properly evaluate the severity of her symptoms; (3)
erred in his RFC analysis, which reached a determination that
was inconsistent with the medical evidence; and (4) failed to
resolve an inconsistency between the VE's testimony and
the Dictionary of Occupational Title.
Rodriguez makes the unrelated argument that evidence she
submitted after the administrative hearing should have been
considered by the Appeals Council and warrants reversal.
Because the Court concludes that the ALJ failed to consider
Listing 1.04(a), it is not necessary to reach Rodriguez's
1.04(A) requires “[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
hearing, Rodriguez's counsel specifically argued that she
met this listing. (R. 283-84). However, in his decision, the
ALJ made no mention of Listing 1.04, and, instead, relied on
a boilerplate paragraph stating the claimant did not meet a
listing. (R. at 187).
Commissioner argues that this was sufficient because failure
to address a specific listing is not error if the record
supports the overall conclusion. Pepper ex rel. Gardner
v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003). However,
in making that argument, the Commissioner concedes that
“Plaintiff can show she sometimes met some of the
requirements of Listing 1.04(A).” (Doc. No.
15, 4). At a minimum, this means the medical
evidence must be closely examined to determine if the ALJ
erred in ignoring any discussion or analysis of whether
Rodriguez met Listing 1.04.
medical evidence clearly establishes that Rodriguez has a
spine disorder that compromises a nerve root. A February 2015
CT scan revealed a broad-based herniated disk at ¶ 5-S1
on the right side with compression of the thecal sac and
compression of the L5 nerve root. (R. at 837). Rodriguez had
a microdiscectomy on November 4, 2015. (R. at 952). However,
after this surgery, an MRI on October 7, 2016 revealed
“a paracentric right recurrent disc protrusion . . .
abutting the right S1 and left S1 nerve roots.” (R. at
1249). There was also evidence of decreased range of motion
in the lumbar spine (R. at 597, 737, 1286), with accompanying
muscle weakness (R. at 706, 710, 785, 950, 1039, 1053, 1167);
sensory or reflex loss (R. at 596, 706, 1142, 1286); and
deficiencies in straight-leg raising tests (R. at 596, 717,
Commissioner argues that Rodriguez does not meet the listing
because her symptoms wax and wane. However, as both Rodriguez
and the Commissioner note, the Listings explain that
“[b]ecause abnormal physical findings may be
intermittent, their presence over a period of time must be
established by a record of ongoing management and
evaluation.” 20 C.F.R. § Pt. 404, Subpt. P, App.
1, § 1.00(D). Indeed, Rodriguez's history of surgery
and continued treatment for her back pain clearly appear to
establish the presence of those symptoms over a substantial
period of time.
discussed none of this medical evidence in reaching
his conclusory determination that Rodriguez did not meet
“any” listing, even though Rodriguez specifically
argued that she met Listing 1.04, and the evidence
creates a strong possibility that she is right. Accordingly,
the ALJ's decision should be reversed and remanded so
that a properly supported determination can be made regarding
whether Rodriguez meets Listing 1.04. In making that
determination, the ALJ should carefully analyze all of the
medical evidence relevant to his determination of whether
claimant meets Listing 1.04.