Beach v. Astrue
Filing
32
ORDER granting 24 Motion for Judgment on the Pleadings by Larry N. Beach and denying 27 Motion for Judgment on the Pleadings by Michael J. Astrue. The decision of the Commissioner is REVERSED AND REMANDED for further proceedings. Signed by District Judge Terrence W. Boyle on 8/14/11. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:10-CV-00193-BO
LARRY NOBLE BEACH,
Plaintiff,
)
)
)
)
)
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
o
R D
E R
)
)
)
)
This matter is before the Court on the parties' Cross-Motions
for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal
Rules of civil Procedure. For the reasons stated below, Plaintiff's
motion [DE 24]
is GRANTED, Defendant's motion [DE 27]
is DENIED,
and the decision of the Commissioner is REVERSED and REMANDED for
further proceedings consistent with this opinion.
I.
BACKGROUND
The Plaintiff filed concurrent claims for disability insurance
benefits
and
supplemental
security income
alleging disability commencing July 30,
denied
at
the
initial
level
on
on January 16,
2007.
February
26,
His
claims
2008,
and
2008
were
upon
reconsideration on April 25, 2008. On May 16, 2008 Plaintiff filed
his request for a hearing. His hearing was held on February 10,
2009 before Administrative Law Judge
February 26,
2009,
(ALJ) Todd S. Colarusso. On
ALJ Colarusso denied the Plaintiff's claims.
Plaintiff requested Appeals Council review on January 6, 2010. The
Appeals Council denied Mr. Beach's request for review on October
29,
and
2010
Commissioner's
ALJ
Colarusso's
decision
determination.
final
then
the
exhausted
Having
became
his
administrative remedies, Plaintiff commenced this civil action by
filing
a
complaint
on
December
28,
2010.
The
Plaintiff
and
Defendant filed Motions for Judgment on the Pleadings on April 22,
2011 and June 17, 2011, respectively. A motions hearing was held on
July 14,
2011 before the undersigned in Elizabeth City,
North
Carolina. In this posture, the parties' Cross-Motions for Judgment
on the Pleadings are ripe for adjudication.
II.
Under
the
Social
DISCUSSION
Security Act,
42
U.S.C.
405(g),
§§
and
1383(c) (3), this Court's review of the Commissioner's decision is
limited
to
determining
supported by substantial
whether
the
decision,
as
a
whole,
is
evidence and whether the Commissioner
employed the correct legal standard. 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) .
An
engage
individual
in
any
is considered disabled if he
substant ial
gainful
acti vi ty
by
is unable
"to
reason
any
of
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 [twelve] months."
42
U.S.C.
§
1382c(a) (3) (A).
The Act
2
further
provides
that
an
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 line of substantial gainful work which exists in the
national economy.
A.
II
42
u. S. C.
§
1382c (a) (3) (B) .
The Five-Step Sequential Evaluation
Regulations issued by the Commissioner establish a five-step
sequential evaluation process to be followed in a disability case.
20 C.F.R.
§
416.920.
At step one,
if the claimant is currently
engaged in substantial gainful activity, the claim is denied. When
substantial gainful activity is not an issue,
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. If the claimant has a severe
impairment, at step three, the claimant's impairment is compared to
those in the Listing of Impairments
Subpart P, App.
(Listing),
20 C.F.R.
§
404,
1; if the impairment meets or equals a Listing,
disability is conclusively presumed. If the claimant's impairment
does not meet or equal a Listing,
at step four,
the claimant's
residual functional capacity (RFC) is assessed to determine if the
claimant can perform his or her past work despite the impairments;
if so,
the claim is denied.
If the claimant cannot perform past
relevant work, at step five, the burden shifts to the Commissioner
3
to show that the claimant, based on his or her age, education, work
experience, and RFC, can perform other substantial gainful work.
In this case, the ALJ found that Plaintiff had not engaged in
substantial gainful activity at any time since his alleged onset
date of July 30,
2007
(Tr.
13.) At step two,
the ALJ determined
that Plaintiff had sleep apnea, gout, and hypertension-impairments
which the ALJ
regulations
found to be
(Id.)
At
"severe"
step
wi thin the
three,
the
ALJ
meaning of
determined
the
that
Plaintif.f's impairments were not of a severity to meet or equal,
singly or in combination,
any pertinent section in the Listings
(Tr. 14 -15 . )
The ALJ then found that Plaintiff retained the RFC to perform
a
significant
range
of
light
work,
with prohibitions
climbing ladders, ropes, or scaffolds,
conditions in the work environment,
(2)
and
on:
(1)
exposure to hazardous
(3)
exposure to fumes,
odors, dusts, gases, or poor ventilation, The ALJ found, however,
that
Plaintiff
could occasionally climb
ramps
and
stairs,
and
frequently balance, stoop, kneel, crouch, and crawl (Tr. 15.)
At
step four,
the ALJ determined that Plaintiff could not
perform the duties of his past relevant work (Tr. 19.) At step five
the ALJ determined, with the aid of a vocational expert
(VE)
and
using the framework of the Medical-Vocational Rules, that Plaintiff
is able to perform the requirements of a storage facility rental
clerk, mail clerk, and bench assembler. These occupations, the ALJ
4
found,
20.)
exist in significant numbers in the national economy (Tr.
Accordingly,
the ALJ found that Plaintiff was not disabled
within the meaning of the Act.
On appeal, Plaintiff assigns error to the ALJ's assessment of
Plaintiff's treating physician's opinion and the ALJ's assessment
of
Plaintiff's noncompl iance with treatment.
Because the Court
finds that the ALJ improperly evaluated the Plaintiff's treating
physician's
opinion,
this
case
shall
be
remanded
for
further
proceedings.
B.
The ALJ Erred In Assessing the Opinion of Plaintiff's
Treating Physician
Treating source opinions are entitled to controlling weight if
they
are
"well-supported by medically
acceptable
laboratory diagnostic techniques and [are]
clinical
and
not inconsistent with
the other substantial evidence in [the] case record." 20 C.F.R.
404.1527 (d) (2)
i
see also Craig v. Chater,
76 F.3d 585,
590
§
(4th
Cir. 1996). "By negative implication, if a physician's opinion is
not supported by clinical evidence or it is inconsistent with other
substantial
evidence,
it
should be accorded significantly less
weight." Craig, 76 F.3d at 590.
In this case,
Dr.
Frazier,
Mr.
Beach's treating physician,
found that Mr. Beach was mentally slow and communicated poorly. Dr.
Frazier
opined
that
due
to
Plaintiff's
weight,
sleep
apnea,
hypertension and mentality, Plaintiff is not able to work (Tr. 362,
372.) On August 31, 2009 Dr. Frazier wrote in Mr. Beach's chart:
5
liThe patient is a young man who is 36 years old and he
has lots of medical problems that would keep him from
getting full emploYment. He has sleep apnea, obesity, and
depression. He has decreased mentation, whether it is
mental retardation or whether it is coming from his
medical diseases. He has hypertension. The patient has
not been able to afford the sleep apnea machine and use
it as he should. I am trying to work out with a sleep
specialist to help him get this machine updated.
So in summary, it is my impression that this patient at
the
present
time with his weight,
sleep apnea,
hypertension, and his mentality that he is not gainfully
employable at the present time. II
(Tr. 363.)
Further, on December 8, 2009 Dr. Frazier wrote:
liThe patient is a 36-year-old male that has obesity,
sleep apnea, hypertension and he, at the present time, is
definitely not able to work. He tried to work about 2
years ago and he fell asleep at work and he fell asleep
driving home and had an accident and states that he does
not do much driving. He has been diagnosed as having
sleep apnea, but the machine he has now is not working
and he is trying to get another machine to help his sleep
apnea. I have been trying to help him to lose weight,
that would definitely help the sleep apnea, but he is
having a difficult time with his mental capacity which is
very low. His wife does most of the talking and thinking
for him and says that he cannot remember anything. She
cannot trust them to even make a phone call and that is
the way he was in the office today that he just sits
there and sleeps while I talk to his wife. II
(Tr. 372.)
Dr. Frazier's opinions as Plaintiff's treating physician are
well
supported
by
the
objective
record
evidence.
Dr.
Frazier
completed a Residual Functional Capacity Assessment for Mr. Beach
on April 19, 20101. Dr.
Frazier noted that Mr. Beach has severe
6
breathing and memory problems (Tr. 377.) Dr. Frazier noted that Mr.
Beach must periodically alternate standing and sitting because he
would fall asleep after sitting for five minutes
(Tr.
375.)
The
doctor also noted that Mr. Beach is limited in his ability to push
and/or pull
(including operation of hand and/or foot
because he would constantly fall asleep
controls)
(Id.) This is consistent
with Dr. Frazier's opinions from August and December of 2009.
The
records
also
reveal
Plaintiff's
history
of
severe
headaches (Tr. 233; 331; 368.) Plaintiff has daytime somnolence and
moderately severe fatigue (Tr. 331), and he is noted to have gout
in both feet, which is worsened by walking (Tr. 354).
Because Dr. Frazier's opinions are consistent with the record
evidence, his opinion is entitled to controlling weight. Therefore,
it was reversible error for the Defendant to not have afforded Dr.
Frazier's opinion controlling weight. Craig, 76 F.3d at 590.
III.
For
the
foregoing
CONCLUSION
reasons,
Plaintiff's
motion
[DE
24]
is
GRANTED, Defendant's motion [DE 27] is DENIED, and the decision of
the Commissioner is REVERSED and REMANDED for further proceedings
consistent with this opinion.
DONE AND ORDERED, this the ~ day of August, 2011.
~441WRRENCi:--w. BOYLE
T
UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?