Boddie v. Astrue

Filing 23

ORDER GRANTING 17 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 19 Defendant's Motion for Judgment on the Pleadings. This case is REMANDED to the Commissioner for an award of benefits. Signed by US District Judge Terrence W. Boyle on 8/1/2013. 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
EASTERN DIVISION
No. 4:12-CV-221-BO
BILLY MORRIS BODDIE,

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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 17 & 19]. A hearing on this matter was held in New Bern, North Carolina on July
24, 2013 at 11:00 a.m. For the reasons discussed below, plaintiffs motion is GRANTED,
defendant's motion is DENIED, and, accordingly, the judgment of the Administrative Law Judge
is REVERSED.
BACKGROUND
Plaintiff protectively filed for disability insurance benefits under Title II of the Social
Security Act on July 25, 2009. The plaintiff alleged a disability onset date of October 11, 2007
after he injured his back at work.

The plaintiffs application was denied initially and on

reconsideration. Subsequently, plaintiff (Mr. Boddie) had a hearing before an Administrative
Law Judge (ALJ) on January 19, 2011. On February 14, 2011, ALJ Larry Miller denied the
plaintiffs claim. The plaintiff sought review of the ALJ' s decision by the Appeals Council, but
that request was finally denied on August 22, 2012 making the ALJ' s decision the final decision
of the Commissioner. Mr. Boddie now seeks judicial review of the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY
Mr. Boddie's alleged disability is severe back pain that began in his lower back and has
progressed upward. Complicating Mr. Boddie's condition are the side effects, namely
drowsiness, caused by the medications that he must take in order to control his pain.
Plaintiff visited the emergency room in 2007 complaining of back pain. At the emergency
room he was provided Toradol, Valium, Percocet, Prednisone, Ultram, and Motrin [Tr. 833]. His
pain progressed and a later x-ray and MRI revealed that he had stenosis. At that time, Mr. Boddie
was treated with an epidural injection and physical therapy. [Tr. 956]. Until October 22, 2008,
Mr. Boddie was receiving non-opiate pain relief treatment, including steroid injections and
Neurontin. [Tr. 762]. Plaintiff visited Dr. Patel for pain management. Because the claimant had
not experienced an appreciable reduction in his pain through other treatments, Dr. Patel
recommended that the claimant treat his pain with opiates and the claimant began taking such
medications. Oxycodone was ultimately selected as the appropriate drug.
Regarding Mr. Boddie's functional capacity, Dr. Patel opined that by the end of 2008 he
was restricted to light work with no lifting over 25 pounds. [Tr. 757-58, 943-48]. In December,
2008, Mr. Boddie was evaluated at Select Physical Therapy and plaintiff was found to be able to
perform medium work. [Tr. 813]. In February, 2009, the plaintiffs pain had continued and he
reported his pain as a nine on a ten-point scale. At that time, Dr. Patel maintained that the
claimant could only perform light work. Following additional physical therapy treatment, Dr.
Patel upgraded his assessment to medium work.
Throughout this time period, the plaintiff complained that he was experiencing extreme
pain when not taking oxycodone. However, when the plaintiff does take oxycodone he is
incredibly drowsy and unable to stay awake. In fact, Mr. Boddie often spends the majority of his

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day lying down due to his pain or drug-induced drowsiness. The pain and psychological impact
ofMr. Boddie's condition have resulted in an assigned GAF score of60. [Tr. 699].
By 2010, Mr. Boddie was still experiencing significant pain and feeling the severe side
effects of the pain medication he was prescribed. Additionally, Mr. Boddie was suffering from
depression. In an attempt to reduce the side effects experienced by Mr. Boddie, Dr. Patel altered
switched the claimant's medications several times - all to no avail. Ultimately, Dr. Patel
maintained Mr. Boddie on a course ofCymbalta, Oxycodone, and Topamax.
Since 2010, Mr. Boddie's symptoms have continued to worsen and he expenences
extreme pain. On December 15, 2011, Dr. Aligood stated that Mr. Boddie suffers from "chronic
intractable pain." [Tr. 1098]. Mr. Boddie's characterizations ofhis symptoms and the side effects
of his medications were corroborated both by his wife and by his long-time friend, Mr. Don
Pollard.
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)). Ifthe Commissioner's decision is supported by such evidence, it must be affirmed.
Smith v. Chater, 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

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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
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. Chafer, 65 F.3d
1200, 1203 (4th Cir. 1995). Here, the ALJ erred by concluding at step five that the claimant is
capable of performing work other than his past relevant work

I.

THE ALJ ERRED BY DISREGARDED THE TESTIMONY OF THE
PLAINTIFF'S WIFE AND LONG-TIME FRIEND.

Testimony from friends and family members is valuable for assessing the functional
status of social security claimants. See Laws v. Celebrezze, 368 F .2d 640, 644 (4th Cir. 1966). It
is appropriate to remand a matter a matter where the ALJ has failed to consider the testimony of
such third parties, even if the testimony of those parties merely corroborates other evidence in
the record. Burnett v. Commissioner, 220 F.3d 112, 122 (3d Cir. 2000). On the other hand, a
remand is not appropriate where third-party witnesses were offered only to support the

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credibility of the claimant's testimony and the ALJ did find the claimant to be without
credibility. ld.
Here, the ALJ entirely failed to consider the testimony of the claimant's wife and the
claimant's long-time friend. This testimony was essential to evaluating the functional capacity of
the plaintiff and should have been considered by the ALJ. It not only corroborated the claimant's
testimony, but gave provided additional context for his alleged symptoms. As such, it was error
for the ALJ to fail to consider this evidence in determining the plaintiffs RFC.
II.

THE HYPOTHETICAL PRESENTED TO THE VOCATIONAL EXPERT WAS
INCOMPLETE.

Even if it was not error for the ALJ to disregard the testimony of the claimant's wife and
friend, ALJ Miller erred by failing to present a complete hypothetical to the vocational expert.
"[l]n order for a vocational expert's opinion to be relevant or helpful, it must be based on a
consideration of all other evidence in the record, and it must be in response to proper
hypothetical questions which fairly set out all of claimant's impairments." Hines v. Barnhart,
453 F.3d 559, 566 (4th Cir. 2006)(citation omitted). Further, the ALJ cannot pick and choose
what information he will present to the vocational expert in order to present a hypothetical that is
favorable to his predetermined conclusion. See Diaz v. Chafer, 55 F.3d 300, 307 (7th Cir. 1995).
Here, the ALJ presented a wholly incomplete hypothetical to the vocation expert by
failing to present the dramatic side effects that the plaintiffs medications have on him. Plaintiffs
schedule and waking hours are almost entirely dictated by when he takes his medication. Given
that plaintiff is sometimes only awake for two-hour periods it is easy to see how such a sleep
cycle could affect the type and quantity of jobs available to him. Because the ALJ failed to
present these limitations to the vocational expert his finding that the claimant is able to perform

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work other than his past relevant work is not supported by substantial evidence. As such, it is
appropriate to remand this matter for an award of benefits to Mr. Boddie.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for judgment on the pleadings is
GRANTED, and the decision of the Commissioner is REVERSED. The decision of whether to
reverse and remand for benefits or reverse and remand for a new hearing is one which "lies
within the sound discretion of the district court." Edwards v, Bowen, 672 F.Supp. 230, 236
(E.D.N.C. 1987). Accordingly, this case is REMANDED for an award ofbenefits.

SO ORDERED.
This _/_ day of August, 2013.

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UNITED STATES DISTRICT JUDGE

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