Faulk v. Astrue

Filing 29

ORDER GRANTING 17 Plaintiff's Motion for Judgment on the Pleadings, and DNEYING 22 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 2/15/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:12-CV-302-BO
CAREN FAULK,

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Plaintiff,
v.

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 17 & 22]. A hearing on this matter was held in Raleigh, North Carolina on
January 30, 2014 at 2:00p.m. For the reasons discussed below, this matter is REMANDED for
further consideration by the Commissioner.

BACKGROUND
On March 30, 2010, plaintiff filed applications for disability insurance benefits under
Title II of the Social Security Act ("Act") and supplemental security income under Title XVI of
the Act. Plaintiff[ alleged an onset date of October 5, 2005, due to a partially paralyzed left hand,
high blood pressure, right hand problems from history of injury, diabetes, hip problems and
tremors. Plaintiffs applications were denied initially and upon reconsideration. An Admisitrative
Law Judge ("ALJ") held a hearing and issued a decision denying plaintiffs claim. On October
23, 2012, the Appeals Council denied review rendering the ALJ's decision the final decision of
the Commissioner. Plaintiff now seeks judicial review of the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY

The ALJ found that plaintiff suffers from the severe impairments of diabetes, history of
multinodular goiter, chronic right hand weakness, and chronic right hip pain. [Tr. 14]. Plaintiff
has received treatment at Sparrow hospital [Tr. 327-335], Onslow Memorial Hospital [Tr. 26078, 307-17]., Community Care Clinic [Tr. 249-59, 279-97, 323-26], Office Park Eye Center
[Tr. 318-22], and State Agency Professionals [Tr. 70-111, 300-06]. Plaintiff received relatively
limited, routine, conservative treatment for her impairments. [Tr. 16, 249-97, 307-26].
In 2001, plaintiff was admitted for severe diabetic ketoacidosis, mild pancreatitis,
hypertension, hyperlipidemia, and mild obesity. [Tr. 327-35]. In March 2009, plaintiffs diabetes
appeared to be in good control, her hypertension was improving, and she continued to lose
weight, diet, and exercise. [Tr. 286]. On May 5, 2010, Dr. Murfin conducted a consultative hand
examination based upon plaintiffs complaints of partial paralysis of the left hand, right hand
problems due to a cut, hip problems, high blood pressure, diabetes and body tremors. [Tr. 30106]. Plaintiff reported that her diabetes and hypertension were controlled with medication. [Tr.
302]. Dr. Murfin noted that plaintiff could not make a right fist due to weakness of the fourth and
fifth finders and her grip strength was 4/5 bilaterally. [Tr. 304]. The small joints of the hand and
wrist were all normal, she could raise both arms overhead, and she could rise from a chair
without assistance. [Id]. Based upon the exam, Dr. Murfin opined that her ability to stand and
move about was significantly impaired and that she was able to hear, speak, and travel. [Tr. 299,
305].
In October, 2010, Dr. Cox completed RFC assessments based upon a review of the
evidence and opined that plaintiff could perform a full range of light work (occasionally lift 20
pounds, frequently lift 10 pounds, sit, stand, or walk for 6/8 hours in an 8 hour workday, with

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unlimited push/pull, with additional limitations to handling and fingering and avoiding
concentrated exposure to hazards). [Tr. 106-08].
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 FJd 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
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

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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).
Here, the ALJ erred at step four of the sequential evaluation. The ALJ' s finding that
plaintiff could return to her past relevant work is not supported by substantial evidence in the
record. Indeed, the substantial evidence in the record establishes that plaintiff cannot return to
her past relevant work.
The ALJ found plaintiff had an RFC of light and further limited her to a limited range of
light work which included frequent bilateral fingering, handling, and grasping. [Tr. 15]. Under
the ALJ's RFC, Ms. Faulk would be expected to use her hands for fine manipulation for about
two-thirds, or just under 6 hours, of an eight hour workday. The ALJ based his decision in part
on a faulty credibility determination. Although required to specify the reasons for the finding on
credibility based on the evidence in the case record, the ALJ failed to list any valid reason for
discounting the testimony of plaintiff. The ALJ simply stated that plaintiff's testimony was not
credible because of her routine and conservative treatment and because her testimony revealed
that her conditions were not disabling. [Tr. 16]. Plaintiff's treatment was limited because she did
not have sufficient financial resources to pursue more extensive treatment options. This is a
justifiable reason for lack of treatment. SSR 96-7p. Plaintiff's testimony was consistent with
limiting her use of hands to occasional. Therefore the ALJ' s credibility determination was
flawed. Giving plaintiff's testimony the proper weight, it is clear to this Court that the ALJ' s
finding at step four that plaintiff could use her hands frequently and therefore could perform her
past relevant work is not supported by substantial evidence.

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Ms. Faulk has been diagnosed with Carpal Tunnel Syndrome, [Tr. 323. 325], and testified
that she was unable to type and perform her job as she once had and was fired as a result. [Tr.
31]. Dr. Murfin noted plaintiffs decreased grip strength [Tr. 304]. He also noted her tremors and
determined that her thyrotoxicosis, [Tr. 316-17], was probably causing her weakness and
possibly causing her tremors, and was likely present and symptomatic for about four or five
years prior to his 2010 evaluation. [Tr. 305]. As a result of the tremors and Carpal Tunnel
Syndrome the evidence in the record shows that it would have been more appropriate to limit
plaintiff to only occasional handling, grasping, and fingering. This would allow her to use her
hands for one third of her workday.
This difference means that plaintiff would not be able to perform her past relevant work.
The Vocational Expert ("VE") testified that an individual limited to the ALJ' s RFC with the
additional limitation to only occasional handling and fingering could not perform Ms. Falk's past
work as an office assistant. [Tr. 51-52]. If a plaintiff cannot perform her past relevant work, the
evaluation moves to step five to whether the claimant, based on her age, work experience, and
RFC can perform other substantial gainful work. Chafer, 65 F.3d at 1203. Because the ALJ did
not consider step five of the evaluation process, the proper course here is to remand the case to
the agency so it can make the initial determination at step five.

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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 .

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This~ day of February, 2014.

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