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, 57418-57420 [2015-24204]
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Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices
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[FR Doc. 2015–24060 Filed 9–22–15; 8:45 am]
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United States Small Business
Administration.
Dated: September 17, 2015.
Javier E. Saade,
Associate Administrator for Investment.
[FR Doc. 2015–24112 Filed 9–22–15; 8:45 am]
BILLING CODE 8025–01–P
24 15
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U.S.C. 78s(b)(2).
26 17 CFR 200.30–3(a)(12).
25 15
23 See
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SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA–2014–0080]
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
Social Security Administration.
Notice of Social Security
Acquiescence Ruling (AR).
AGENCY:
ACTION:
This Social Security AR
explains how we will apply a holding
in a decision of the United States Court
of Appeals for the Fourth Circuit that
we determined conflicts with our
interpretation of the section in the
Listing of Impairments (the Listings)
that addresses disorders of the spine
with evidence of nerve root
compression.
DATES: Effective: September 23, 2015.
FOR FURTHER INFORMATION CONTACT:
Gabriel Deadwyler, Office of the General
Counsel, Office of Program Law, Social
Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235–6401,
(410) 965–8775, or TTY 410–966–5609,
for information about this notice. For
information on eligibility or filing for
benefits, call our national toll-free
number, 1–800–772–1213 or TTY 1–
800–325–0778, or visit our Internet site,
Social Security Online, at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: We are
publishing this Social Security AR in
accordance with 20 CFR 402.35(b)(2),
404.985(a), (b), and 416.1485(a), (b) to
explain how we will apply a holding in
Radford v. Colvin, 734 F.3d 288 (4th Cir.
2013), regarding the standard for
meeting section 1.04A of the Listings,
which addresses disorders of the spine
with evidence of nerve root
compression.
An AR explains how we will apply a
holding in a decision of a United States
Court of Appeals that we determine
conflicts with our interpretation of a
provision of the Social Security Act
(Act) or regulations when the
Government has decided not to seek
further review of that decision or is
unsuccessful on further review.
We will apply the holding of the court
of appeals’ decision as explained in this
AR to claims at all levels of
administrative review within the Fourth
Circuit. We will apply this AR to all
determinations or decisions made on or
after September 23, 2015. If we made a
determination or decision on an
application for benefits between October
29, 2013, the date of the court of
appeals’ decision, and September 23,
SUMMARY:
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Federal Register / Vol. 80, No. 184 / Wednesday, September 23, 2015 / Notices
2015, the effective date of this AR, the
claimant may request that we apply the
AR to the prior determination or
decision. The claimant must show,
pursuant to 20 CFR 404.985(b)(2) or
416.1485(b)(2), that applying the AR
could change our prior determination or
decision in his or her case.
When we received this precedential
court of appeals’ decision and
determined that an AR might be
required, we began to identify those
claims that were pending before the
agency within the circuit that might be
subject to readjudication if we
subsequently issued an AR. Because we
have determined that an AR is required
and are publishing this AR, we will
send a notice to those individuals
whose claims we have identified. In the
notice, we will provide information
about the AR and the right to request
readjudication under the AR. However,
a claimant does not need to receive a
notice in order to request that we apply
this AR to our prior determination or
decision on his or her claim, as
provided in 20 CFR 404.985(b)(2) and
416.1485(b)(2).
If we later rescind this AR as obsolete,
we will publish a notice in the Federal
Register to that effect, as provided in 20
CFR 404.985(e) and 416.1485(e). If we
decide to relitigate the issue covered by
this AR, as provided by 20 CFR
404.985(c)and 416.1485(c), we will
publish a notice in the Federal Register
stating that we will apply our
interpretation of the Act or regulations
involved and explaining why we have
decided to relitigate the issue.
(Catalog of Federal Domestic Assistance,
Program Nos. 96.001 Social Security—
Disability Insurance; 96.002 Social
Security—Retirement Insurance; 96.004
Social Security—Survivors Insurance)
Dated: April 9, 2015.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
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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);
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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
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57419
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.
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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) Neuroanatomic 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 ‘‘[a]n individual shall be
determined to be under a disability only
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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
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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.
[FR Doc. 2015–24204 Filed 9–22–15; 8:45 am]
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[Public Notice: 9281]
Defense Trade Advisory Group; Notice
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The Defense Trade Advisory
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Thursday, October 29, 2015 at 1777 F
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]]>Agencies
[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57418-57420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24204]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA-2014-0080]
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
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling (AR).
-----------------------------------------------------------------------
SUMMARY: This Social Security AR explains how we will apply a holding
in a decision of the United States Court of Appeals for the Fourth
Circuit that we determined conflicts with our interpretation of the
section in the Listing of Impairments (the Listings) that addresses
disorders of the spine with evidence of nerve root compression.
DATES: Effective: September 23, 2015.
FOR FURTHER INFORMATION CONTACT: Gabriel Deadwyler, Office of the
General Counsel, Office of Program Law, Social Security Administration,
6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-8775, or
TTY 410-966-5609, for information about this notice. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: We are publishing this Social Security AR in
accordance with 20 CFR 402.35(b)(2), 404.985(a), (b), and 416.1485(a),
(b) to explain how we will apply a holding in Radford v. Colvin, 734
F.3d 288 (4th Cir. 2013), regarding the standard for meeting section
1.04A of the Listings, which addresses disorders of the spine with
evidence of nerve root compression.
An AR explains how we will apply a holding in a decision of a
United States Court of Appeals that we determine conflicts with our
interpretation of a provision of the Social Security Act (Act) or
regulations when the Government has decided not to seek further review
of that decision or is unsuccessful on further review.
We will apply the holding of the court of appeals' decision as
explained in this AR to claims at all levels of administrative review
within the Fourth Circuit. We will apply this AR to all determinations
or decisions made on or after September 23, 2015. If we made a
determination or decision on an application for benefits between
October 29, 2013, the date of the court of appeals' decision, and
September 23,
[[Page 57419]]
2015, the effective date of this AR, the claimant may request that we
apply the AR to the prior determination or decision. The claimant must
show, pursuant to 20 CFR 404.985(b)(2) or 416.1485(b)(2), that applying
the AR could change our prior determination or decision in his or her
case.
When we received this precedential court of appeals' decision and
determined that an AR might be required, we began to identify those
claims that were pending before the agency within the circuit that
might be subject to readjudication if we subsequently issued an AR.
Because we have determined that an AR is required and are publishing
this AR, we will send a notice to those individuals whose claims we
have identified. In the notice, we will provide information about the
AR and the right to request readjudication under the AR. However, a
claimant does not need to receive a notice in order to request that we
apply this AR to our prior determination or decision on his or her
claim, as provided in 20 CFR 404.985(b)(2) and 416.1485(b)(2).
If we later rescind this AR as obsolete, we will publish a notice
in the Federal Register to that effect, as provided in 20 CFR
404.985(e) and 416.1485(e). If we decide to relitigate the issue
covered by this AR, as provided by 20 CFR 404.985(c)and 416.1485(c), we
will publish a notice in the Federal Register stating that we will
apply our interpretation of the Act or regulations involved and
explaining why we have decided to relitigate the issue.
(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social
Security--Disability Insurance; 96.002 Social Security--Retirement
Insurance; 96.004 Social Security--Survivors Insurance)
Dated: April 9, 2015.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
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.
[[Page 57420]]
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 ``[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.
[FR Doc. 2015-24204 Filed 9-22-15; 8:45 am]
BILLING CODE 4191-02-P
