Freeman v. Astrue

Filing 39

ORDER GRANTING 18 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 33 Defendant's Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner for further proceedings. Signed by US District Judge Terrence W. Boyle on 7/30/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:12-CV-48-BO
SHEILA FREEMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on cross-motions for judgment on the pleadings. A hearing
was held before the undersigned on May 31, 2013, at Edenton, North Carolina. For the reasons
discussed below, this matter is remanded to the Acting Commissioner for further proceedings.
BACKGROUND
Plaintiffbrought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final
decision of the Commissioner denying her claim for disability and disability insurance benefits (DIB)
pursuant to Title II ofthe Social Security Act. Plaintiff protectively applied for DIB on February
26, 2008, alleging disability beginning February 1, 2006. After her claim was initially denied, an
Administrative Law Judge (ALJ) conducted a hearing and considered the claim de novo and found
that plaintiff was not disabled. The decision of the ALJ became the final decision of the
Commissioner when the Appeals Council denied plaintiffs request for review. Plaintiff then timely
sought review of the Commissioner's decision in this Court.
DISCUSSION
Under the Social Security Act, this Court's review of the Commissioner's decision is limited

to determining whether the decision, as a whole, is supported by substantial evidence and whether
the Commissioner employed the correct legal standard. 42 U.S.C. § 405(g); see Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence consists of more than a mere scintilla of
evidence, but may be less than a preponderance of evidence. Richardson v. Perales, 402 U.S. 389,
401 (1971 ). The Court must not substitute its judgment for that of the Commissioner if the
Commissioner's decision is supported by substantial evidence. Hays, 907 F.2d at 1456.
In evaluating whether a claimant is disabled, an ALJ uses a multi-step process. First, a
claimant must not be able to work in a substantial gainful activity. 20 C.F.R. § 404.1520. Second,
a claimant must have a severe impairment that significantly limits his or her physical or mental
ability to do basic work activities. !d. Third, to be found disabled, without considering a claimant's
age, education, and work experience, a claimant's impairment must be of sufficient duration and
must either meet or equal an impairment listed by the regulations. !d. Fourth, in the alternative, a
claimant may be disabled if his or her impairment prevents the claimant from doing past relevant
work and, fifth, if the impairment prevents the claimant from doing other work. !d.
After finding at step one that plaintiff met the insured status requirements and that she had
not engaged in any substantial gainful activity from her alleged onset date through her date last
insured, the ALJ determined that plaintiffhad the following severe impairments: low back pain, neck
pain, morbid obesity, depression, tobacco abuse, bilateral carpal tunnel syndrome, knee pain, and
allergies. None of plaintiffs impairments or combination of impairments were found to meet or
equal a listing at step three, and the ALJ found that plaintiff had a residual functional capacity (RFC)
to perform light work with additional exertional and non-exertionallimitations. At step four, the ALJ
found that plaintiff could not perform any past relevant work, but found at step five that, considering

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plaintiffs age, education, work experience, and RFC, jobs existed in significant numbers in the
national economy that plaintiff could perform. Accordingly, the ALJ found that plaintiff was not
disabled.
After reviewing the record and considering the arguments presented at the hearing, the Court
finds that a remand of this matter is appropriate. In order to determine whether jobs existed in
significant numbers that plaintiff could perform, the ALJ relied on the testimony of a vocational
expert (VE). AVE's opinion is not relevant or helpful if it is not based on a consideration of all the
other evidence in the record and is not in response to a proper hypothetical that fairly sets out a
claimant's impairments. Hines v. Barnhart, 453, F.3d 559, 566 (2006).
Here, the ALJ' s hypotheticals posed to the VE were flawed because they failed to adequately
address plaintiffs depression and pain and their effects on her ability to work in a collaborative
setting. Although the ALJ summarily adopted the findings of the non-examining state-agency
physicians regarding plaintiffs functional assessments in full, the ALJ failed to include in his
hypothetical any limitation on plaintiffs ability to interact with supervisors- a work activity with
which the most recent state agency physician found plaintiff would have moderate difficulty. Tr.
1094. One state consultative examiner in this matter also found plaintiffto have mild to moderate
interpersonal difficulties, Tr. 795, while another consultative examiner found that plaintiffs
"[p ]rognosis for employment [was] guarded due to chronic pain and depression and morbid obesity."
Tr. 762.
Plaintiffs chronic pain is well-documented throughout the medical record and, even
assuming that the ALJ properly failed to find plaintiffs subjective testimony fully credible, he failed
to properly consider the cumulative effects of plaintiffs pain and depression when determining
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plaintiffs RFC. 42 U.S.C. § 423(d)(2)(B); Reichenbach v. Heckler, 808 F.2d 309, 312 (4th Cir.
1985); Combs v. Weinberger, 501 F.2d 1361, 1363 (4th Cir. 1974). Additionally, a remand in this
matter would allow the ALJ to address in the first instance the newly submitted opinion evidence
of Dr. Gottovi, a treating physician whose opinion on plaintiffs ability to perform work activities
and functional capacity should be entitled to some if not great weight. 20 C.F.R. § 404.1527.
CONCLUSION
Accordingly, for the reasons discussed above, plaintiffs motion for judgment on the
pleadings [DE 18] is GRANTED, defendant's motion for judgment on the pleadings [DE 33] is
DENIED, and this matter is REMANDED to the Commissioner for further proceedings
consistent with this order.

:~y~
UNITED STATES DISTRI

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JUDGE