SOLES v. COLVIN, No. 1:2013cv00491 - Document 21 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 11/23/2015; that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be GRANTED, and that the final decision of the Commissioner be upheld. (Sheets, Jamie)
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SOLES v. COLVIN Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA LARRY G. SOLES, ) ) ) ) ) Plaintiff, \¡ 1,:13CY491, ) CAROLYN W. COLVIN, Acting Commissionet of Social ) ) ) ) ) ) Secutity, Defendant. MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE Plaintiff, Larry G. Soles, btought this action prüsuant to Sections 205(9) and 1631(c)(3) of the Social Security Act (the ",{.ct"), as amended (42 U.S.C. $$ a05(g) and 1383(c)(3)), to obtain review of a ftnal decision of the Commissionet of Social Security denying his claims fot Disability Insutance Benefits ("DIB") and Supplemental Security Income ("SSI") undet Tides II and XVI of the Act. The Cout has befote it the cettified administtative tecotd and ctoss- motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed applications fot DIB and SSI on June 25,2009, both alleging disability beginning onJanuary 2,2006. Qr. 323-24,325-28.)1 The applications wete denied initially andagatnupon reconsidetation. (Tr. 188-92,1.93-97,200-03.) Plaintiff then requested and 1 Transctþt citations refer to the administtattve record. 1 Dockets.Justia.com was provided a hearing befote Administtaive Law Judge Frank (t1,04-36.) Plaintiff and his attorney appeared D. tmstrong ("ALJ"). at the August 23,201,0 hearing. (Tt. 104.) Afterward, the ALJ issued a decision finding that Plaintiff was not disabled undet the r\ct. 8,2011,, the Appeals Council gtanted Plaintifls request for teview, Qt. 141-56.) OnJune remanding the case back to the ALJ fot considetation of the potential effects of Plaintiffs tight-eye blindness and hearing loss and, vocational expett. Qt. On October if wattanted, to obtain additional testimony from a 1,57-62.) 1.2,201.1., headng before a different Plaintiff, again represented by counsel, testified at a second judge-AlJ Mc,\tthur Allen. (Tt. 63-103.) ALJ ,\llen decision on November 4, 2011 ftndtng Plaintiff not disabled under the Act. Çr. issued a 163-77.) On January 1.1.,201.2, the Appeals Council gtanted Plaintiffs request fot review of Plaintifls obesity and deptession. On January 9, 62.) On February the Act. (L 201.3, 184-87.) Plaintiff testified at a thttd headng, befote ALJ Allen . Qt 37 - 26,201,3, ALJ Allen issued a decision finding Plaintiff not disabled under (Tr. 10-36.) O" May 20,201,3, the A.ppeals Council denied Plaintiffs request fot teview of the AIJ decision, tendedng the AIJ's decision the fìnal decision of the Agency fot purposes of review. Çr. 1,-7.) II. STANDARD OF RE\rIEW The Commissioner held that Plaintiff was not disabled within the meaning of the ,A.ct. Under 42U.5.C. $ 405(9), the scope of judicial teview of the Commissioner's fìnal decision is specific and nattow. Snith u. Scltweiker, T95 tr.2d 343, 345 (4th Cir. 1986). This Coutt's 2 review of. that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hanter u. Salliuan,993 F.2d31,,34 (4thCtt.1.992);Hay u. Salliuan,907 F.2d1453,1,456 (4th Cir. 1990). Substantial evidence is "such televant evidence as a Íeasonable mind might accept as adequate to support a conclusion." Høruter,993 F .2d rt 34 (cängMchardson u. Pera/es,402 U.S. 389, 401' (1971)' It "consists of more tLran a mere scintilla" "but may be somewhat less than a preponderaflce." Id. (quoingl-^aws u. Celebreçry,368F.2d640,642 (4th Cir. 1966)). The Commissioner must make findings of fact and resolve conflicts in the evidence. HEs,907 F.2d at 1456 (citing Kingu. Calfano,599 F.2d 597,599 (4th Cir. 1,979)). The Court does not conduct a de novo teview of the evidence ot the Commissionet's 795F.2d ^t345. fìndings. Schweiker, In reviewing fot substantial evidence, the Coutt does not undertake to re- weigh conflicting evidence, to make credibility determinations, or to substitute its iudgment for that of the Commissioner. Craig u. Chater,76 F.3d 585, 589 (4th Cir. 907 F.2d 1,996) (citing Ha1s, at 1456). "nØhere conflicting evidence allows teasonable minds to diffet as to whether a claknantis disabled, the responsibility fot that decision falls on the fCommissionet] (or the [Commissioner's] designate, the 834 F.2d 635, 640 (7th Cir. ALJ)." Cmig76F.3d 1987). The denial of at 589 (quoting lV/alkeru. benefìts will be teversed only if teasonable mind could accept the recotd as adequate to suppott the detetmination. 402 U.S. ^t Boweru, See no Perale¡ 401.. The issue befote the Court, thetefore, is not whether Plaintiff is disabled, but whethet the Commissioner's finding that Plaintiff is not disabled is supported by -) substantial evidence and was reached based upon a cortect appìication See of the relevant law. id.; Cofman u. Bowen,829 F.2d 51.4,517 (4th Cir. 1,987). III. THE ALJ'S DISCUSSION The Social Security Regulations define "disability" fot the purpose of obtaining disability benefits as the "inability to do any substantial gainful activity by teason of any medically determinable physical or mental impairment2 which can be expected to result in death ot which has lasted or can be expected to last fot a continuous pedod of not less than 12 months." 20 C.F.R. S 404.1505(z); rce also 42 U.S.C. SS 423(dX1)(Ð, 1382c(a)(:)(A). To meet this definition, a claimant must have a severe impairment which makes it impossible to do previous work oÍ 20 C.F.R. ^rry othet substantial gainful activity3 that exists in the national economy. S 404.1505 (a); see al¡o A. 42 U.S.C. SS 423(dX2)(A),1,382c(a)(3)@) The Five-Step Sequential Analysis The Commissionet follows a five-step sequential analysis to ascertain whethet the claimant is disabled, which is set forth Conm'rof Soc. Sec, in 20 C.F.R. SS 404.1520,416.920. See Albriþt u. Admin.,174F.3d473,475 n.2 (4th Cir. 1,999). The ALJ must determine in sequence: 2 A "physical or mental impairment" is an impafument resulting from "artatomical, physiological, ot psychological abrormalities which are demonstrable by medically acceptable clinical and labotatory diagrrostic techniques. " 42 U. S. C. SS 423 (dX3), 382c(a) (3XD). 1, "substantial gainful activity" is work that (1) involves perfotming significant ot ptoductive physical otmentalduties, andQ) is done (otintended) forpay otptofit. 20 C.F.R. SS 404.1510,41,6.91,0. ' 4 l7hether the claimant is engaged in substanial gainful activity (1) claimantis working). If so, the claimant is whether the not disabled and the inquiry ends. \X/hether the claimant has a severe impairment. Q) (2.e., If not, then the claimant is not disabled and the inquiry ends. W.hethet the impairment meets or equals to medical criteria (3) 404, Subpat P, Appendix 1., of 20 C.F.R., Patt which sets forth a list of impairments tha;twa;r:.z;nte- finding of disability without consideting vocational criteria. If so, the clatmant is disabled and the inqutty is halted. IØhethet the impairment prevents the claimant ftom perfotming past relevant (4) work. If not, the claimant is not disabled and the inquiry is halted. nØhether the claimant is able (s) to perfotm any other work considering both het residual functional capacitya and her vocational abilities. If so, the claimant is not disabled. 20 c.F.R. SS 404.1520,41.6.920 Hete, at step one, the since Janu^ry AIJ found that Plaintiff has not engaged in substantial activity 2, 2006, the amended onset date. Gt. 15.) At step two, the ALJ found that Plaintiff has the following severe impairments: foot dtop of the left foot; tettolisthesis atL1- a ctptcity" ("RFC") is the most a clzimant can do in a work setting despite the physicalandmentallimitations of herimpairment andany relatedsymptom (e.g.,pan). See20 C.F.R. S$ 404.1545(")(1), a1,6.9a5@)(1); see also Hines aBarnhart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both a "physical exettional or sttengtlì lirrritation" that assesses the clainrant's "abiÏty to do sedentary, light, medium, heary, or very heavy work," as well as "nonexettional limitations (mental, sensory ot skin impairments)." Hø// u. Harris, 658 F.2d 260,265 (4th Cit. 1981). "Residual functional 5 51; history of laminotomy in 1,992; dght eye blindness; radiculopathy; history of cotneal decompensation of the left eye in 2006; deafness in the left ear; parttal hearing loss in the dght ear; depression; obesity;ar.d diabetes mellitus. (Ir. 16.) At step thtee, the AIJ found that Plaintiff did not have an impafument ot combination of impaitments that meets or medically equals one listed in ,{ppendix 1. (Id.) At the fouth step determined that Plaintiff is unable to petform any past televant of the sequence, the ALJ work. Qt.26.) At step five, the ALJ detetmined that that "there are jobs that exist in signifìcant numbets in the national economy fPlaintiffl can petfotm." Qr.26.) Consequently, the ALJ found that Plaintiff was not disabled within the meaning of the Act and denied his claim. B. Çr 28.) Residual Functional Capacity Determination Prior to step four, the A{ determined Plaintiffs RFC based on his evaluation of the evidence, including Plaintiffs testimony and the fìndings of treating and examining health cate ptovidets, as well as state consultants. [r. 1,8-26.) Based on the evidence as a whole, the ALJ detetmined that Plaintiff tetained the RFC to perfotm sedentary wotk, except that "fPlaintiff] should only occasionally climb stairs or tamps, only occasionally bend, balance, stoop,crawl,ctouch,orkneel ...hewouldhavetowotkinalownoiseenvironment...he should have only occasional contact with co-workers and the genetal public . . . ." (Tt. 18- 19.) Plaintiff had additional limitations noted in the ALJ's decision. (Id.) C. Appeal of Adverse Decision Plaintiff appealed the ALJ's advetse decision dated Febtuary 26,2013 tequesting the Appeals Council to review this decision. (Tt. 1 ) The ,{ppeals Council denied the request. 6 Id. IV. ANAIYSIS Plaintiff contends that the Commissioner ered in detetmining that he was not disabled for putposes of the Act. (Docket Entty erred in his evaluation impairments. Id. 1,2 at 1). Specifically, Plaintiff avers that the ALJ in step thtee of PlaintifPs impafuments under Listing 1'.04 for spinai As explained below, the undetsigned concludes that the ALJ's conclusion at step thtee is suppotted by substantial evidence and was reached based upon a correct application of the televant law. A. The ALJ's Factual Findings Plaintiff argues that the ALJ erted by finding that Plaintiff did not meet Listing 1,Î41' andthat medical evidence in the tecotd does in fact establish thatPlaintiff meets the listing citteria. (Docket E.rtty 12 at 5-7.) The Commissioner argues that substanial evidence supports the ALJ's decision finding that Plaintiff díd not meet the requirements fot Listing 1,.044. (Docket E.rtty 1,4 at7-1,2.) To satisfi' Listing 1,.04A, a plainttff ftst must show that he suffers ftom a spinal disorder such as "hetniated nucleus pulposus, spinai atachnoiditis, spinal stenosis, osteoatthdtis, degenetative disc diseas e, facet arthdtis, [or] veneb ral ftactute." 20 C.F.R. Part 404, Subpt. P, App'x 1, S 1.04. Second, he must demonstrate that the above spinal condition tesults in "comptomise of a nerve toot (including the catða equina) or the spinal cord." Lastly, undet 1..041,, he must show the following: A. Evidence of newe root comptession chatactetized by neutonatomic distribution of pain, limitation of motion of the spine, motoÍ loss (atrophy with 7 Id. associated muscle weakness of muscle weakness) accompanied by sensory of reflex loss and, if there is involvement of the lower back, positive sttaight-leg taising test (sitting and supine). //. s 104.,\. In addtessing the Listing 1,.04A at step three, the ALJ stated: fR]egarding the claimant's back impairment, the evidence of tecord does not demonstrate that the claimant meets Listing 1.04. Thete is no evidence of nerve toot comptession characterized by neuro-anatomic distribution of pain or limitation of motion of the sraight-leg taising test (sitting and supine). Cft. 16 ) The ALJ also noted that the medical record lacked evidence of Plaintiffs "inabil-ity to ambulate effectively." Id. Plaintiff argues that the record demonsttates that he does in fact meet the listing, teþing on the following medical evidence The record demonstrates that as eatly September 2006, Mr. Soles was ^s into his leg with tingling and suffedng from low back pain which radiated weakness. CIr. 518-19.) His MRI demonsttated disc bulging atL4-5 despite his past surgelT at this level with scar tissue extending into the postetiot aspect of the disc. Qr. 623.) On examination, he had teduced sttength in his anterior tibialis in his left leg with foot dtop. (Tt. 518-19.) Futthet imaging in Octobet 2006 revealed left fotaminal narowing at the L4-5 due to disc bulge with compromise of the left sided nerve - no compromise of the dght side or centrally. Qt 520-21,.) This is neuroanatomically consistent with his left sided pain, weakness and sensory distutbance. On exam in November 2006, he had 2/5 sttength in þs] left antetior tibia[s and 3/5 sttength in othet muscles in his left foot. He was diagnosed with lumbat tadiculopathy with ptogressive neutological deficit. . . Though he did not have a neu/ comptessive lesion, he had post-operative change at his otiginal sutgical site on his back. Çr.524-25.) From August 2007 thtough 20'1,2, Mt. Soles continued to objectively display teduced suength in his left foot. . . complain[ed] of numbness and tingling. . . [and] was observed to have decreased sensation in his left leg on examination. (r. 647;71.9; 84546; 992.) 8 (Docket Entty 1,2 at 6-7.) The Commissionet argues that "the ALJ's findings are amply supported by the recotd and should not be disturbed." (Docket Etttry 1,4 at9.) Having reviewed the pleadings and the entire record, the undersigned concludes that substantial evidence supports the This is not ^ case where the A{ A{'s conclusion that Plaintiff did not meet Listing 1.041'. failed to considet a listing,s but rathet ^ rr:rattet whete the ALJ considered the evidence in the record, and detetmined that although Plaintifls foot drop of the left foot, retrolisthesis at L5-S1, history of laminotomy, and tadiculopathy were severe impairments, Plaintiffls impairments individually ot combined did not meet Listing 1.044 or any other listing. Qr 1.6-1.7.) It is the job of the ALJ to weigh evidence and tesolve arty evidentiary conflicts. To the extent Plaintiff asserts that medical evidence is ptesent that sttongly supports Listing 1.044, the ALJ concluded otherwise, considering all evidence in the record, and his decision is supported by such evidence. Fot example, Plaintiffs September2006 MRI scan showed a slight disc bulge, but "no evidence of recurrent disc herniation" artd "no evidence of neutal comptession." Çt. 623.) An October2006 scan reported a slight disc bulge with "mild left neutal foraminalnattowing," but "no compromise of c na,I." (Tt. 521.) Othet evidence showed a Iack of compressive cleat lesion. Qr 523- 525; 530.) Plaintiff has documented instances of intact sensation and normal teflexes, Qt 528;548;560l'569;573;578;637;647;163;863;866;869:' 872;876;880; 884; 888;925;933-940;972;1046) and notmal muscle strength. Çr.586;732; t 8.g., Ketcher u. Apfel,68 F. Supp . 2d 629, 646 P. Md. 1999); Drane u. Coluin, ìfL 408753, at*4-5 (X{.D.N.C. Feb. 3, 2014) (unpublished); Martin u. Coluin, WL 4114207, at*4-5 O{.D.N.C. Aug. 20, 2014) (unpublished). I No. 1:10CV901.,201.4 No. 1:11CV408,2074 854; S55.) Additionally, the evidence of recotd shows Plaintiff on sevetal occasions walking with a normal gait. (Tt. 519; 560;728;730;734; 995.) Thus, the ,{LJ's conclusion that Plaintiff does not meet Listing B. 1.04-,A. is suppotted by substan:dlal evidence. The Sufficiency of the ALJ's Explanation Plaintiff briefly atgues that the length of the ALJ's discussion was insufficient. (Docket Entty 1,2 at 5-6.) An ALJ must give a sufficient explanation of his rulings to include "evidence the A{ found credible and why, and specifìc application of the pettinent legal requirements to the tecotd evidence." Radþrd u. Coluin,734 tr.3d 288,295 (4th Cir. 201,3). "Without such an explanation, it is simply impossible to tell whether thete was substantial evidence to suppott the detetmination." Cook u. Heck/er,793F.2d1.1.68,1,1,73 (4th Cir. 1986). Relatedly, the ALJ is tequired to explicitly indicate "the weight given to all relevant evidence." Mørþfu u. Bowen,810 F.2d 433,437 (4th Cit. 1.987) (quoting Gordon u. Schweiker,725tr.2d231, 235 (4th Cir. 1984). In this case, the ALJ's opinion contains sufficient detail and explanation. The ALJ explicitly addtessed Listing 1..04A. (It. 16.) Additionally, the ALJ devoted sevetal pages to discussing the opinions of physicians and othet experts and explicitly assigned weight to each of them. Qr 20-25.) ï{/ithin 4,201,1great that discussion, the ALJ gave his weight. Çt. 25.) In that opinion, meet the cdtetia diagnoses, and ftst opinion of Novembet the ALJ also concluded that Plaintiff did not of Listing 1.044 and made specific findings as to Plaintiffs symptoms, conditions. Çt. 1.69,112-73.) The ALJ incorpotated this analysis into his Febtuary 26,201,3 opinion. Çr. 25.) This supplements the ALJ's discussion of Listing 1.04 10 in the latter opinion, and provides suffìcient explanation fot this Court to conclude that thete was substantial evidence to support the C. AIJ's detetmination. (SeeTt.1,6') The ALJ's Application of the Law Plaintiff also argues in his Response and Sutteply that Listtng 1.041' does not tequire proof of an inability to ambuiate effectively. (Docket E.tt y 17 at 1,J; Docket Etttty 20 zt 1'- 2) The Commissioner disagrees, pointing to the context of Listing 1.04 as a specific r^ther. than genetal subsection and its place within the structute of the tegulation. (Docket Entry 18 ^t 2-9.) As noted above, the ALJ found duting his analysis that Plaintiff evidence of an inabiìity to ambulate effectively. "It is well established (It. 16.) that an agency's intetptetation need not be the only possible reading of a regulad6¡-61 even the þss¡ ens-to prevail." S. Ct. 1.326, 1,337 Q01,3). Courts generally defer regulation unless had not shown Decker u, l{w. Enatl. Del Ctr.,1.33 to an agency's interptetation of its own it is "'plainly eroneous or inconsistent with the tegulation' . for] when there is reason to suspect that the agency's interptetation 'does not reflect the agency's fair and considered judgment on the matter in question."' Christopher u. SnithKline Beecham Corþ.,1.32 S. Ct. 21,56,21,66 Q01,2) (quoting Aøer u. Robbins,519 U.S. 452, 461,-62 (1997)). Plaintiff citesRadþrd to support his position that the Commissionet's teading of Listing 1.04A is flawed. 734 F.3d at 288; see also Docket Entty 17 at 1,-2. In that case, the Foutth Circuit rejected the Commissioner's intetpretation of Listing 1,.04A, which attempted to include a "proximity-of-findings" requi-tement for its listed symptoms Radþrd,734 F.3d at 293. The court did so fot two reasorrs, neithet of which applies in this case. First, the coutt 11 noted that the Commissioner could cite to no agency authodty (Social Security tuling, to suggest that the Commissioner had ever regulation, letter, agency memorandum, etc.) adopted a proximity-of-findings requitement priot to litigation. Id. at 294. S:uch "'post hoc nio¡ahzation[s]"' do not receive deference. Id. (quottng SrnithKline, 132 S. Ct. at 21'66). Second, the court found the Commissioner's interptetation to be "plainly inconsistent with the text and structute of the tegulation." Id. Here, the Commissionet points to 20 C.F'.R. SS 404.1525(c)Q) 2nd41,6.925(c)(2), which arc near.ly identical, in support of her argument. Section 41.6.925(c)(2) teads: The introduction to each body system contains infotmation televant to the use of the listings in that body system; for example, examples of common impairments in the body system and definitions used in the listings fot that body system. We may also include specifìc criteria fot establishing a diagnosis, impairment, or establishing that your conftming the existence of ^nof a parttcular listing in the body system. impairment(s) satisfies the ctiteria Even if we do not include specific critetia fot establishing a diagnosis or conltming the existence of yout impafument, you must still show that you have a severe medically determinable impairment(s), as defined i" SS 416.908, 41, 6.9 20 (c), and 41. 6.9 24 (c). 20 C.F.R. \ a1,6.925(c)Q). Moving to $ 41,6.925(c)(3), that subsection cladfìes that "[w]e will fìnd that yout impairment(s) meets the tequirements of a listing when ctitetia of that listing, inclading an1 requfuement." 20 C.F.R S releuanl criteria in it satisfies all the introduction, and meets of the the duration 416.925(c)(3) (emphasis added). This section contemplates scheme that orgatizes critetia within each listing a ftom the general to the specifìc while including both as substantive requirements. Listing 1.00 contains the inttoduction to the musculoskeletal system listings, and Listing 1,.04A falls undet thatcategory. 20 C.F.R. Part404, Subpt. P, Appendix I, $ 1.00. 1.2 It defines "loss of function" as used within the listing as "the inability to ambulate effectively on a sustained basis fot any reason . . . or the inability to petfotm fine and gross movements effectively on a sustained basis for any reason."6 S 1.00(BX2Xa). The next subsection further defines both of these terms. S 1.00(BX2XB). The broader structure of the tegulation indicates that loss of function is an integral component of musculoskeletal impaitments. For example, a clzirrrant who lost het foot due to amputation could only qualify under Listing 1.05 if the amputation occurred"^t ot above the tarsal tegion, with stump complications resulting in medical inability to use a prosthetic device to ambulate effectively." S 1.05@). Plaintiffs urged reading of Listing 1.044, which would specifically permit functionally able individuals to quali$r for disability benefits undet Listing 1.0a þy carving out an exception for proving loss of function), does not seem plausible given Listing 1..05's fairly stringent limitation on the eligibility of amputees. In this way, common sense also factors into the Coutt's analysis and cuts in favor of the Commissioner's position. See Rødþrd,734 F.3d at 294. The Commissionet cites othet televant agency regulations that indicate her interpretation here "reflectfs] the agency's fak and consideted judgment on the matter." SmithWine,l32 S. Ct. at2166. This evidence also squares the Commissionet's intetptetation with "the text and structrüe of the regtlatton." Id. Several disttict courts in this circuit have found that Listing 1.044 includes a u While loss of function tequires ptoving either one or the othet, Plaintiffs argumeflt addtesses the AIJ's decision that there was no evidence that Plaintiff was unable to ambulate effectively. 13 requirementthata claimantprove ineffective ambulation. See McKol u, Astrae, No. 4:08-2329- CMC-TER, 2009 WL 2182457, at x16 (D.S.C. Arg. 28, 2009) (using similar reasoning above); see also Miller u. Coluia, No. 1:1,2-CV-371-GCM,201.4 WL 22081'1'9, at *3 CW.D.N.C. l{ay 28,201.4); Vest u. 201,2); Moss u. Astrae, Astrae, No. 5:11 CV047,201,2W1' 4503180, at x4 CW.D. Va. Sept. 28, No. 2:L1-cv-44,201.1, WL7768883, at *9 Owens u. Attrue, No. CIV.,\. 9:11-0100-8}r/.,201,1, McKol Astrwe, u. ffl, 5869809, (NT.D.W. Va. Dec. 30, 201,1); at *5 (D.S.C' Nov. 2L, 2011); No. 4:08-2329,2009 WL2782457, at x16 (D.S.C. Aog. 28,2009)- However, this view is not unanimous across the 2574509, at as jutisdiction. Rolbal u. Coluin, *1 (À{.D.N.C. June 9, 2014) ("But the ability to No. 1:11CV389, 201,4WL ambulate effectively is not responsive to the question whethet a clumarrt meets Listing 1,.04A; rather, it is tequired by Listing 1.04C."). The Fourth Circuit has not considered the question explicidy, but othet circuits that have done so have found that Lisung 1,.04A does tequire ptoof of ineffective ambulation. Leibig u. Barnhart,243 F. App'" 699,702 (3d Cir. 2007) ("plisting requires an inability [1 04'\] to ambulate effectively or an inability to petform fine and gross movements effectively)'); Aadler u. Astrue,501 F.3d 446, 449 (5th Cir. 2007) (finding that all musculoskeletal impaitments undet Listing 1.00 require such ptoof). District courts in other circuits are also split on the issue. Compare Briner u. AstraqNo. 1:09-CV-429-VTL-TAB,2010WL378111.8,at*5 (S.D. Ind. Aug. 18,2010) ("Listing 1,.041' requires an inability to ambulate effectiv.lT."), report and recomnendation adopted, 2010 WL 3781558 (S.D. Ind. Sept. 20, 201,0), øith Snider u. Coluin, No. 14-CV-'1249,201.5WL 4180889, at x8 (C.D. Ill. July 1,0,20L5) ("Listing 1.044 does not requite evidence of inability to ambulate 1,4 effectively.") (disagreement within the Seventh Circuit). Comþare Reed u. Comm'r of Soc. Sec., No. 07-15275, 2009 WL 877691,, at *8 n.4 (E.D. Mich. lr'4al 30, 2009) ("An inability to 'ambulate effectively'is patt of Listing 1.04C, but is also applicable to an examination of 1.04,{ given that both a loss of sttength and feeling can inhibit walking."), with Intin u. Conn'r of Soc. Jar., No. 1:12-CY-837,201.3 \øL 3353888, at x10 n.8 (S.D. OhioJuly 3, does not tequire the 'inability Circuit). Despite these to 201,3) ("Listing 1..041' ambulate effectively."') (disagteement within the Sixth disagteements, the opinions of the Third and Fifth Circuits, in addition to the clear rrralotity of the districts within out circuit, lead this Court to conclude that the weight of authority supports the argument that Listing 1.044 requires ptoof of a claimant's inability to ambulate effectively. This precedent strengthens the Commissioner's position with tespect to both concerns voiced by the court ín Radþrd. Even if this Coutt wete to find that Listing 1.04A does not tequite an inability to ambulate effectively, the Coutt nevertheless concludes that the ALJ's decision that clumant does not meet Listing 1.04A. is suppotted by substantial evidence. Because the Commissionet's interptetation of Listing 1.044 is neithet plainly inconsistent with the text and sttuctute of the regulation flot a post hoc raiona\zation, it is entitled to deference in this matter. Thetefore, the ALJ did not etr by considedng that Plaintiff had not demonstrated a loss of ambulatory function in his analysis undet Listing 1.044. 15 V. CONCLUSION After a carcful consideration of the evidence of record, the Coutt finds that the Commissionet's decision is supported by substantial evidence and was reached based upon a cottect application of the televant law. Accordingly, this Coutt RECOMMENDS that Plaintifls Motion fotJudgment on the Pleadings (Docket Entry 11) be DENIED, that Defendant's Motion forJudgment on the Pleadings (Docket Entry 13) be GRANTED, and that the final decision of the Commissioner be upheld. Jo. U November 23,201,5 Durham, North Carolina 1,6 we ster States Magisttate Judge
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