AR 15-1(4): Rescinded

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Effective Date: September 23, 2015 Publication Date: September 23, 2015 Federal

page 79063 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

s 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

airment 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

cted 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,

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)

isting, 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

ny 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

res 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

rmine 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. Back to Table of Contents

Effective Date: September 23, 2015 Publication Date: September 23, 2015 Federal

page 79063

ACQUIESCENCE RULING 15-1(4)

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.

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.

y 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

ssion