Craig v. Colvin
Filing
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ORDER GRANTING 24 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 26 Defendant's Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner for further proceedings consistent with this decision. Signed by US District Judge Terrence W. Boyle on 5/8/2014. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:13-CV-27-BO
NEIL EVERETT CRAIG,
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Plaintiff,
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V.
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ORDER
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CAROLYN COLVIN,
Acting Commissioner of Social Security,
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Defendant.
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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 24 & 26]. A hearing on this matter was held in Elizabeth City, North Carolina on
May 7, 2014 at 2:30 p.m. For the reasons discussed below, this matter is REMANDED for
further consideration by the Commissioner.
BACKGROUND
On April 9, 2010, plaintiff concurrently filed applications for a period of disability and
disability insurance benefits under Title II of the Social Security Act ("Act") as well as an
application for supplemental security income benefits under Title XVI of the Act. Plaintifff
alleged an onset date of May 4, 2009, due to two bulging discs in his neck, back pain, inability to
lift without pain, inability to wear shoes without numbness, inability to sit/stand for long periods
of time, stiffness when seated, chronic pain, and knee problems. Plaintiffs applications were
denied initially and upon reconsideration. An Administrative Law Judge ("ALJ") held a hearing
and issued a decision denying plaintiffs claim. On February 25, 2013, the Appeals Council
denied review rendering the ALJ's decision the final decision ofthe Commissioner. Plaintiff now
seeks judicial review ofthe Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
MEDICAL HISTORY
Plaintiff is a former shipyard sheet metal worker who injured his neck and back while
working in May 2009 and who has not returned to work since that time. [Tr. 41--42]. A
myelogram and CAT scan obtained after the injury showed mild facet lamina ligamentum
hypertrophy at L3-L4 and L4-L5, with mild broad-based disc bulging causing some mild
neuroforaminal stenosis at L3-L4 and L4-L5. A myelogram of the cervical spine showed
posterior disc bulging at C5-C6 and C6-C7, and to a lesser degree, at C3-C4 and C4-C5, causing
mild central stenosis at C3-C4 and C4-C5 and to a lesser degree at C5-C6 and C6-C7 with
posterior disc protrusion centrally at C5-C6 and C6-C7 as well as mild neuroforaminal stenosis.
[Tr. 333]. More recent imaging shows mild narrowing ofthe disc space at L4-L5 and L5-Sl, and
mild sclerotic changes at the facet joints ofL4-L5 and L5-Sl. [Id.]. The imaging also shows disc
space narrowing at C5-C6 and C6-C7. [Id.].
Plaintiffs treating physician has consistently provided a medical impression of axial neck
pain, numbness and tingling in both hands, underlying spondylosis, disc disesase, and spinal
stenosis at C5-C6 and C6-C7, and to a lesser degree at C3-C4 and C4-C5, axial low back pain,
numbness and tingling in both feet with underlying spondylosis and subarticular stenosis at L3L4 and L4-L5. [Id.].
Plaintiffs treatment consisted of epidural steroid injections in the lumbar and cervical
spine, [Tr. 332, 335], physical therapy, and pain medication. [Tr. 331]. As of July 2011, that
course oftreatment had provided no relief and surgery was recommended at least twice. [Tr. 327,
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329, 338]. Plaintiff did not undergo, and did not want to undergo, surgery because of his
financial state and his uninsured status. [Tr. 49-50].
The ALJ found that plaintiff suffers from the severe impairments of severe cervical and
lumbar stenosis. [Tr. 28, 30].
DISCUSSION
When a social security claimant appeals a final decision of the Commissioner, the district
court's review is limited to the determination of whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence
which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984)(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed.
Smith v. Chafer, 99 F.3d 635, 638 (4th Cir. 1996).
In making a disability determination, the ALJ engages in a five-step evaluation process.
20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis
requires the ALJ to consider the following enumerated factors sequentially. At step one, if the
claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the
claim is denied if the claimant does not have a severe impairment or combination of impairments
significantly limiting him or her from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part
404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is
equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's
impairment does not meet or equal a listed impairment then, at step four, the claimant's residual
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functional capacity ("RFC") is assessed to determine whether plaintiff can perform his past work
despite his impairments. If the claimant cannot perform past relevant work, the analysis moves
on to step five: establishing whether the claimant, based on his age, work experience, and RFC
can perform other substantial gainful work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).
Plaintiff alleges that the ALJ erred at step five in evaluating the severity of plaintiffs
pain by ( 1) materially misstating the record; (2) failing to comply with the SSR 96-7p and 20
C.P.R.§ 404.1529; and (3) failing to comply with Smith v. Astrue, 457 Fed. App'x 326, 329 (4th
Cir.2011).
Both SSR 96-7p and 20 C.P.R. § 404.1529 require the ALJ to consider certain factors
when evaluating credibility. These factors include the medical signs and laboratory findings,
diagnosis, prognosis, and other medical opinions provided by treating or examining physicians,
statements and reports from the individual and from treating or examining physicians or
psychologists and other persons about the individual's medical history, treatment and response,
prior work record, and efforts to work, daily activities, and other information concerning the
individual's symptoms and how the symptoms affect the individual's ability to work. The ALJ
must also consider the consistency of the individual's statements, a longitudinal record of
treatment and attempts to seek treatment for pain.
In evaluating plaintiffs credibility, the ALJ based his opinion, in part, on the grounds
that plaintiff refused to have the recommended surgery or any shots or injections. [Tr. 30].
Therefore the ALJ concluded that plaintiffs "symptoms are not as intractable as alleged." [/d.].
Such a conclusion is not supported by substantial evidence. Although surgery was recommended,
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plaintiff testified that he was unable to undergo surgery for financial reasons. [Tr. 49-50].
Although the ALJ noted this testimony, he did not discuss it when finding plaintiff not credible.
[Tr. 29-30]. Because the ALJ failed to consider plaintiffs inability to afford surgery, his refusal
to undergo the surgery is an invalid reason to impeach plaintiffs credibility. The Social Security
Administration states "the adjudicator must not draw any inferences about an individual's
symptoms and their functional effects from a failure to seek or pursue regular medical treatment
without first considering any explanations" such as "[inability] to afford treatment and [lack of]
access to free or low-cost medical services." SSR 96-7p. Further, "[a] claimant may not be
penalized for failing to seek treatment [he] cannot afford." Lovejoy v. Heckler, 790 F.2d 1114,
1117 (4th Cir. 1986). Finally, the ALJ erred by stating that plaintiff has refused to have any shots
or injections. The record demonstrates that this is simply untrue. Plaintiff received steroid
injections [Tr. 323, 328-29, 331-33, 335, 338], stopped taking them because they did not
significantly reduce his pain [Tr. 331-32, 338], and thereafter the injections were no longer
recommended. [Tr. 331].
It is clear that the ALJ did not comply with the requirements of SSR 96-7p and 20 C.F .R.
§ 404.1529 in evaluating plaintiffs credibility. Although such error is not always prejudicial,
where, as here, the error directly goes to the ALJ's RFC determination, the error is prejudicial. A
major component of plaintiffs claim is that his pain is what is disabling. An error in determining
the credibility of plaintiffs own statements regarding the pain he feels directly affects the
potential RFC determination. If the credibility determination is flawed, it is likely that the RFC
determination could also be flawed.
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Because the ALJ failed to properly evaluate plaintiffs credibility as to his testimony
regarding the pain from which he suffers, the case is remanded to the agency so it can undertake
a proper credibility analysis at step five.
CONCLUSION
For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is
GRANTED, and the matter is REMANDED to the Commissioner for further proceedings
consistent with this decision.
SO ORDERED.
This$ day of May, 2014.
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