[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]


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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

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling (AR).

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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 http://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