                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-1021


JIMMY RADFORD,

                 Plaintiff - Appellee,

           v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cv-00347-BO)


Argued:   September 17, 2013                Decided:   October 29, 2013


Before GREGORY, DAVIS, and KEENAN, Circuit Judges.


Vacated and remanded by published opinion. Judge Davis wrote the
opinion, in which Judge Gregory and Judge Keenan joined.


ARGUED: Samantha Lee Chaifetz, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. Charlotte Williams
Hall, CHARLES T. HALL LAW FIRM, Raleigh, North Carolina, for
Appellee. ON BRIEF: David F. Black, General Counsel, Gabriel R.
Deadwyler, Attorney, SOCIAL SECURITY ADMINISTRATION, Baltimore,
Maryland; Thomas G. Walker, United States Attorney, Raleigh,
North Carolina, Stuart F. Delery, Principal Deputy Assistant
Attorney General, Michael S. Raab, Attorney, Sparkle L.
Sooknanan, Attorney, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.
DAVIS, Circuit Judge:

     Jimmy    Radford     applied       for       social    security        disability

benefits     after   he    sustained         an    injury        to   his   back.    An

Administrative Law Judge (ALJ) denied Radford’s claim, finding,

among other things, that he was not disabled because his back

impairment did not “meet or equal” Listing 1.04A, the regulation

identifying    disorders    of    the    spine       that    merit      a   conclusive

presumption of disability and an award of benefits. 20 C.F.R.

Part 404, Subpart P, App. 1 § 1.04A. After the Appeals Board

denied his request for review, Radford sought judicial review of

the ALJ’s decision in federal district court in North Carolina.

And he won: the district court found that “the evidence as a

whole compels a conclusion” that Radford met Listing 1.04A; it

reversed the decision of the ALJ as unsupported by substantial

evidence; and it took the extra step of remanding the case for

an award of benefits.

     Carolyn Colvin, the Acting Commissioner of Social Security,

contends on appeal that the district court applied the wrong

legal standard in ruling that Radford’s condition met or equaled

Listing 1.04A, and that it erred in remanding with instructions

to award benefits.

     We    hold   that    the    district         court    did    not   err   in    its

application of Listing 1.04A; however, we vacate the judgment of

the district court because its decision to direct the ALJ to

                                         2
award benefits was an abuse of discretion. We order a remand to

the agency for further proceedings.

                                                I.

       Title      II   of    the     Social      Security        Act     “provides       for   the

payment of insurance benefits to persons who have contributed to

the    program         and     who      suffer       from    a         physical     or    mental

disability.” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The

Commissioner uses a five-step process for evaluating claims for

disability        benefits.        20   C.F.R.       §   404.1520(a)(4);            Hancock     v.

Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner

asks       whether     the   claimant:         (1)    worked       during     the    purported

period       of      disability;         (2)      has       an     impairment         that      is

appropriately severe and meets the duration requirement; (3) has

an    impairment        that    meets      or     equals         the    requirements       of    a

“listed” impairment and meets the duration requirement; (4) can

return to her past relevant work; and (5) if not, can perform

any other work in the national economy. Hancock, 667 F.3d at

472-3. The claimant has the burden of production and proof at

Steps 1–4. Id.

       This case involves Step 3, the “listed” impairments step. 1


       1
       Although the ALJ made findings with regard to the other
steps, the parties do not discuss, and we need not consider, the
remaining steps because "[i]f a determination of disability can
be made at any step, the Commissioner need not analyze
subsequent steps." Hancock, 667 F.3d at 473.


                                                 3
     The   Social      Security    Administration     has     promulgated

regulations   containing     “listings     of   physical      and   mental

impairments   which,   if   met,   are   conclusive   on    the   issue   of

disability.” McNunis v. Califano, 605 F.2d 743, 744 (4th Cir.

1979). A claimant is entitled to a conclusive presumption that

he is impaired if he can show that his condition “meets or

equals the listed impairments.” Bowen v. City of New York, 476

U.S. 467, 471 (1986). 2

     At issue in this case is the listing that covers disorders

of the spine: A claimant is entitled to a conclusive presumption

that he is disabled if he can show that his disorder results in

compromise of a nerve root or the spinal cord. 20 C.F.R. Part

404, Subpart P, App. 1, § 1.04. Listing 1.04A further describes

the criteria a claimant must meet or equal to merit a conclusive

presumption of disability arising out of compromise of a nerve

root or the spinal cord:

     [e]vidence of nerve root compression characterized by
     [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, if there is
     involvement of the lower back, [4] positive straight-
     leg raising test (sitting and supine)[.]


     2
       If the claimant’s impairments are not listed, he still
qualifies for benefits if he shows that he cannot perform his
past work, and cannot – in light of his residual functional
capacity, age, education, and work experience - perform other
work. Bowen, 476 U.S. at 471.


                                    4
20    C.F.R.   Part   404,    Subpart       P,    App.     1,    §    1.04A.    It    is    the

assessment of these criteria at the root of this appeal.

                                            II.

       Radford worked as a tree trimmer. In December 2002, when he

was 38, he sustained an injury lifting part of a tree at work

and sought emergency medical care for pain in his lower back,

legs, and knees. The treating physician diagnosed a back sprain

and discharged Radford with medication.

       Over the next five years, Radford consulted several doctors

who    collectively      observed      –     at     various          points    in    time     –

different symptoms of nerve root compression present in Radford.

       In   June      2007,       Radford        applied        for    social        security

disability     benefits.      A    state    agency       medical       consultant      found

that Radford had “discogenic” 3 and “degenerative” “disorders of

the back,” but concluded that Radford was not disabled within

the meaning of the Social Security Act. (A.R. 52.) A second

consultant concurred.

       The ALJ denied Radford’s claim. The ALJ found that Radford

had two severe impairments - lumbar degenerative disc disease

and chronic obstructive pulmonary disorder - but that neither

qualified as an impairment under Listings 1.04A (disorders of


       3
        “Discogenic”  means  “caused  by  derangement  of  an
intervertebral disk.” Dorland’s Medical Dictionary for Health
Consumers (2007).


                                             5
the    spine)        or     3.02    (chronic       pulmonary     insufficiency),    and

neither constituted any other type of impairment listed under

sections       1.00        (musculoskeletal),         3.00     (respiratory   system),

11.00 (neurological), and 13.00 (malignant neoplastic diseases).

The ALJ provided no basis for his conclusion, except to say that

he had “considered, in particular,” the listings above, and had

noted that state medical examiners had also “concluded after

reviewing the evidence that no listing [was] met or equaled.”

(A.R. 17).

       The ALJ also found that Radford would be unable to continue

working as a tree trimmer, but that he could work as a food and

beverage order clerk, surveillance system monitor, or addresser.

Thus, the ALJ concluded that Radford was not disabled within the

meaning of the Act.

       The Appeals Council declined Radford’s request for review,

rendering the ALJ’s decision final.

       Radford sought judicial review in federal court, asserting

that    the     ALJ        had    erred   by    finding      that   Radford   had   not

established that he met or equaled the Listing 1.04 impairments.

Radford v. Astrue, 2012 WL 3594642, at *1 (E.D.N.C. Aug. 20,

2012). On cross-motions for judgment on the pleadings, Fed. R.

Civ.    P.     12(c),        the     district       court    agreed   with    Radford,

concluding that the ALJ’s determination that he had “not [met]

Listing       1.04        [was]    not    supported     by     substantial    evidence”

                                               6
because the ALJ’s opinion failed to apply the requirements of

the listings to the medical record. Id. at *2. The district

court further concluded that the extensive medical record showed

that   Radford       fell    within    Listing        1.04A    because       all    of   the

required medical findings were present in Radford’s extensive

medical      record.    Id.    at   *3.   Accordingly,             the   district    court

reversed the decision of the ALJ and remanded the case with

instructions to award benefits. Id.

       The   district       court   denied      the    Commissioner’s         motion     for

reconsideration, and the Commissioner timely appealed.

                                          III.

       The    Commissioner          contends      that        the        district    court

“improperly substituted its own view” of the Social Security

Administration’s        regulations       for    that    of    the       Commissioner     by

effectively      interpreting         Listing     1.04A       to    require    that      the

listed criteria “be present intermittently at some point in the

medical record.” (App. Br. 24) (emphasis added). Instead, the

Commissioner argues that the listed signs and symptoms must be

“simultaneously present” “over a period of time sufficient to

establish that the impairment has lasted or can be expected to

last at listing-level severity for a continuous period of at

least twelve months.” (App. Br. 22, 27) (emphasis added). She

contends      that     the    ALJ     applied     the     standard         correctly     in

concluding that Radford did not meet Listing 1.04A.

                                           7
     In      apparent        recognition           of        the     novelty        of     this

interpretation, counsel for the Commissioner retreated from it

during    oral    argument.      The      Commissioner’s            (somewhat)       modified

contention       is   that    Listing       1.04A           contains    a     proximity-of-

findings    requirement:        To     meet       or    equal       Listing     1.04A,     the

claimant has the burden of producing evidence that his nerve

root compression is characterized by sufficiently proximate (and

perhaps    simultaneous)       medical        findings         of    (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)

positive straight-leg raising test.

     The      Commissioner’s           contention             is     unpersuasive.          The

interpretation        advanced       is    not     supported           by    the    text    or

structure        of    the    regulation.              We     therefore        reject      the

Commissioner’s        invitation     to    read        an    additional       proximity-of-

findings    requirement       into     Listing         1.04A.       Because    this      appeal

turns on construction of an administrative regulation, we review

the district court’s ruling de novo. Precon Dev. Corp., Inc. v.

U.S. Army Corps of Engineers, 633 F.3d 278, 289-90 (4th Cir.

2011) (observing that statutory construction is a “question of

law”).

     The first step in construing a regulation is to consider

the text, Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 878

                                              8
(2011),    and      the    text        here   does       not    contain       a    requirement

governing when symptoms must present in the claimant. Listing

1.04A provides that certain “disorders of the spine” are among

the    impairments             conclusively         establishing            disability.      It

requires        only       “[e]vidence           of       nerve        root        compression

characterized by” – i.e., distinguished by - the four symptoms.

20    C.F.R.     Part     404,     Subpart       P,      App.    1,     §    1.04A;      Merriam

Webster’s        Collegiate            Dictionary          192        (10th        ed.     1997)

(“characteristic”).             The     use   of      “and”      to    connect       the   four

symptoms means that all of the symptoms must be present in the

claimant, but the provision does not specify when they must be

present. And it certainly does not say that they must be present

at the same time, see Merriam Webster’s Collegiate Dictionary

1094 (10th ed. 1997) (defining “simultaneous” as “existing or

occurring      at   the    same       time”),       or   that    they       must   be    present

within a certain proximity of one another.

      The regulation does not specify when the findings must be

present    because        it    does    not   need       to:    The    regulation        already

imposes     a       duration           requirement         on     the        claimant.       See

Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466,

471 (4th Cir. 2011) (stating that the Court may "discover the

plain meaning” of a regulation by looking at its structure).

Under Step 3, the regulation states that a claimant will be

found disabled if he or she has an impairment that “[1] meets or

                                                9
equals one of our listings in appendix 1 of this subpart and [2]

meets the duration requirement.” 20 C.F.R. § 404.1520(a)(4)(iii)

(emphasis added). The critical durational inquiry for purposes

of awarding benefits is whether the impairment has lasted or is

expected    to    last    “for     a    continuous       period   of    at    least    12

months.” 20 C.F.R. § 404.1509 (“How long the impairment must

last”). This language mirrors that of the statute: The Social

Security        Act     provides       benefits      for     claimants         with     a

“disability,” defined 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.

42     U.S.C.    §    423(d)(1)(A)           (emphasis     added).      The    duration

requirement      thus    screens       out    claimants    with   impairments         that

have not lasted and cannot be expected to last for a continuous

year or more.

       The Commissioner seeks a bright line rule specifying when

and how Listing 1.04A’s symptoms must present in the claimant,

but the regulatory structure eschews such a rule in favor of a

more    free-form,      contextual       inquiry    that    makes      12    months   the

relevant metric for assessment of the claimant’s duration of

disability. Neither the text nor the structure of the regulation

reveal an intent to layer a more stringent proximity-of-findings


                                             10
requirement on top of the durational requirement. And that makes

sense:    It    would    be    peculiarly      redundant      to     require         that   a

claimant prove that his impairment will last or has lasted at

least 12 months and that he produce medical examinations showing

that     each     symptom       in     Listing        1.04A        presents           either

simultaneously or in sufficiently close proximity such that an

ALJ could conclude that the claimant’s impairment will last or

has    lasted   at    least    12    months.     We   reject       such       a    redundant

construction of the regulation. See PSINet, Inc. v. Chapman, 362

F.3d 227, 232 (4th Cir. 2004) (observing that courts typically

“reject constructions that render a term redundant”).

       With no basis in text or structure, the Commissioner seeks

to    defend    her     interpretation      by    invoking      agency            deference.

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 844 (1984). There are two problems with this. First,

other    than     the     un-cited      proposition        in      its        brief,     the

Commissioner points to no other authority – no Social Security

Ruling, no regulation, no letter or agency memorandum – that

suggests that the Commissioner has ever adopted a proximity-of-

findings requirement until her briefing to this Court. We thus

cannot conclude that the interpretation advanced reflects the

“fair and considered judgment” of the Commissioner; instead, it

reads    more     like     a    litigating       position       or       “a       post   hoc

rationalization.” Christopher v. SmithKline Beecham Corp., 132

                                         11
S. Ct. 2156, 2166-67 (2012) (internal citations and quotations

omitted).

       Second, the Court declines to defer to the Commissioner’s

interpretation because it is plainly inconsistent with the text

and structure of the regulation. Id. Listing 1.04A says nothing

about    a   claimant’s     need    to       show       that    the       symptoms    present

simultaneously      in    the   claimant          or    in    close       proximity    to   one

another.     (And   the   Commissioner            points       to    no    federal    circuit

court that has ever adopted this view.) It is unambiguous. “An

agency’s       interpretation      of    a    regulation            is    not   entitled     to

deference where the regulation's meaning is unambiguous,” Anim

v.     Mukasey,     535    F.3d     243,          254        (4th        Cir.   2008);      the

Commissioner’s interpretation of Listing 1.04A is therefore not

entitled to deference. See Pitzer v. Sullivan, 908 F.2d 502, 505

(9th    Cir.    1990)    (rejecting      the       agency's         attempt     to    add   new

requirements to a medical listing contrary to the plain text of

the regulation).

       We hold that Listing 1.04A requires a claimant to show only

what it requires him to show: 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. 20 C.F.R. § 404.1509. 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

                                             12
condition.    Nor       need   a     claimant       show      that    the    symptoms         were

present in the claimant in particularly close proximity. As the

Commissioner       recognizes,         “abnormal       physical           findings      may    be

intermittent,” but a claimant may nonetheless prove a chronic

condition by showing that he experienced the symptoms “over a

period of time,” as evidenced by “a record of ongoing management

and    evaluation.”      (App.       Br.   25)     (quoting      20       C.F.R.   Part       404,

Subpart P, 1.00D). To require proximity of findings would read a

new    requirement      into    the    listing       that      is    unsupported         by    the

text,    structure,       medical      practice,         or    common       sense,       and    we

decline to do so.

                                            IV.

       Although we hold that the district court did not apply the

wrong legal standard, we nonetheless vacate its judgment because

it chose the wrong remedy: Rather than “reversing” the ALJ and

remanding with instructions to award benefits to Radford, the

district     court        should       have        vacated          and     remanded          with

instructions for the ALJ to clarify why Radford did not satisfy

Listing 1.04A.

       Like us, the district court reviews the record to ensure

that the ALJ’s factual findings are supported by substantial

evidence     and    that       its    legal        findings      are       free    of    error.

Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d 319, 322 (4th

Cir.    2013).     If    the    reviewing        court     decides         that    the    ALJ’s

                                              13
decision       is    not    supported       by    substantial    evidence,      it     may

affirm, modify, or reverse the ALJ’s ruling “with or without

remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

      A necessary predicate to engaging in substantial evidence

review is a record of the basis for the ALJ’s ruling. See Gordon

v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). The record

should   include       a    discussion      of    which   evidence     the    ALJ    found

credible   and       why,    and     specific     application     of   the    pertinent

legal requirements to the record evidence. Hines v. Bowen, 872

F.2d 56, 59 (4th Cir. 1989). If the reviewing court has no way

of evaluating the basis for the ALJ’s decision, then “the proper

course, except in rare circumstances, is to remand to the agency

for additional investigation or explanation.” Florida Power &

Light    Co.    v.    Lorion,      470     U.S.   729,    744   (1985).      There   are,

however, exceptions to that. See Breeden v. Weinberger, 493 F.2d

1002, 1011-12 (4th Cir. 1974) (reversing for award of benefits

where case was quite old, record had no need to be reopened, and

the case had already been on appeal once before). We review the

district       court’s      choice    of    remedy    -   to    affirm,      modify,    or

reverse - for abuse of discretion. Id.

      We conclude that the district court abused its discretion

in   directing       an    award   of    benefits     rather    than   remanding       for

further explanation by the ALJ of why Radford does not meet

Listing 1.04A. The ALJ’s decision regarding the applicability of

                                             14
Listing 1.04A is devoid of reasoning. He summarily concluded

that   Radford’s       impairment        did       not   meet    or   equal    a    listed

impairment, but he provided no explanation other than writing

that   he   “considered,          in   particular,”       a     variety   of   listings,

including Listing 1.04A, and noting that state medical examiners

had also concluded “that no listing [was] met or equaled.” (A.R.

16–17). This insufficient legal analysis makes it impossible for

a   reviewing    court       to    evaluate        whether      substantial     evidence

supports the ALJ’s findings. See Cook v. Heckler, 783 F.2d 1168,

1173 (4th Cir. 1986) (reversing and remanding when ALJ “failed

to compare [the claimant’s] symptoms to the requirements of any

of the four listed impairments, except in a very summary way”).

A full explanation by the ALJ is particularly important in this

case because Radford’s medical record includes a fair amount of

evidence supportive of his claim, Murphy v. Bowen, 810 F.2d 433,

437 (4th Cir. 1987); indeed, there are five years of medical

examinations,      and       there       is        probative      evidence         strongly

suggesting that Radford meets or equals Listing 1.04A.

       The ALJ cited the state medical opinions in support of his

conclusion, but that is not enough to constitute “substantial

evidence.”      Even    if    the      ALJ’s       exclusive      citation     to    those

opinions indicates the (apparently very high) evidentiary weight

he placed on them, it does not indicate why the opinions merit

that weight. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir.

                                              15
1995)    (holding      that   reliance      on   the    opinion       of    nonexamining

physicians cannot, by itself, constitute substantial evidence).

Moreover, the ALJ appeared to totally – and without explanation

- reject the opinions of Radford’s treating physicians in favor

of the state medical examiners; this raises red flags because

the     state    medical        opinions      are      issued        by    non-examining

physicians and are typically afforded less weight than those by

examining and treating physicians. See 20 C.F.R. § 404.1527(c)

(providing      that   medical       opinions    from    examining         and    treating

physicians are given more weight than those of non-examining,

non-treating physicians).

        The district court reasoned that remand was futile because

the ALJ’s decision regarding Listing 1.04A was not supported by

substantial evidence, Radford’s case has been pending for some

time, and the evidence actually compelled the conclusion that

Radford met the listing. Radford, 2012 WL 3594642, at *3. The

Commissioner, however, correctly notes that “there is at least

conflicting      evidence       in   the    record”      as     to    whether     Radford

satisfied the listing. (App. Br. 25). For example, the record

contains instances where Radford showed limited motion of the

spine on at least four occasions, positive straight leg raises

at least five times, and sensory or reflex loss on at least

three    occasions.       But     the      record   also      shows        that   Radford

exhibited no weakness, sensory loss, or limitation of motion

                                            16
during some examinations, and Dr. Kushner opined more than once

that Radford’s pain was inconsistent with his physical findings.

     Given the depth and ambivalence of the medical record, the

ALJ’s failure to adequately explain his reasoning precludes this

Court   and   the   district    court      from   undertaking     a     “meaningful

review” of    the   finding    that     Radford      did   not   satisfy   Listing

1.04A. Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012).

Just as it is not our province to “reweigh conflicting evidence,

make credibility determinations, or substitute our judgment for

that of the [ALJ],” Hancock, 667 F.3d at 472 (alteration in

original), it is also not our province – nor the province of the

district    court   –   to   engage   in     these   exercises     in    the   first

instance.

                                        V.

        For the reasons set forth, the judgment is vacated and

this case is remanded with instructions that the district court

remand the case for further proceedings before the agency.



                                                           VACATED AND REMANDED




                                        17
