Cannon v. Colvin

Filing 33

ORDER GRANTING 24 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 28 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 8/18/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:13-CV-79-BO
ANDRE G. CANNON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on July 29, 2014, at Elizabeth City,
North Carolina.

For the reasons discussed below, this matter is remanded to the Acting

Commissioner for further proceedings.

BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review ofthe
final decision of the Commissioner denying his claim for disability and disability insurance
benefits (DIB) and supplemental security income (SSI) pursuant to Titles II and XVI of the
Social Security Act. Plaintiff filed for DIB and SSI on December 16, 2009, alleging disability
since November 10, 2001. After initial denials, a hearing was held before an Administrative
Law Judge (ALJ) who then issued an unfavorable ruling. The decision of the ALJ became the
final decision of the Commissioner when the Appeals Council denied plaintiff's request for
review. Plaintiff then timely sought review ofthe Commissioner's decision in this Court.

DISCUSSION
Under the Social 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 whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted).
An individual is considered disabled if he is unable "to engage in any substantial gainful
activity by reason of any 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 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." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation
process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision
regarding disability can be made at any step of the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

At step one, if the Social Security Administration determines that the claimant is
currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination of impairments. If the claimant
has a severe impairment, it is compared at step three to those in the Listing of Impairments
("Listing") in 20 C.F.R. Pt. 404, Subpt. P, App. 1.

If the claimant's impairment meets or

medically equals a Listing, disability is conclusively presumed.

If not, at step four, the

claimant's residual functional capacity (RFC) is assessed to determine if the claimant can
perform his past relevant work. If so, the claim is denied. If the claimant cannot perform past
relevant work, then the burden shifts to the Commissioner at step five to show that the claimant,
based on his age, education, work experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R.
§ 416.920(a)(4).

At step one, the ALJ determined that plaintiff met the insured status requirements and
had not engaged in substantial gainful activity since his alleged onset date.

Plaintiffs

degenerative disc disease of the lumbar spine status-post surgery, obesity, hypertension,
cardiomegaly, and depression were considered severe impairments at step two but were not
found alone or in combination to meet or equal a listing at step three. After finding plaintiffs
statements not entirely credible, the ALJ concluded that plaintiff could perform light work with
some exertional and non-exertional limitations. The ALJ found that plaintiff could return to his
past relevant work and alternatively found that, considering plaintiffs age, education, work
experience, and RFC, there were other jobs that exist in significant numbers in the national

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economy that plaintiff could perform. Thus, the ALJ determined that plaintiff was not disabled
as of the date of his decision.
In his decision, the ALJ summarily determined that plaintiffs degenerative disc disease
did not meet the requirements of Listing 1.04, which addresses disorders ofthe spine resulting in
compromise of a nerve root or the spinal cord. 20 C.F.R. Part 404, Subpt. P, Appendix I§ 1.04.
In so doing, the ALJ noted that no evidence in the record established the requisite evidence of
nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis as required by Listing
1.04. Tr. 18. Listing 1.04A requires:
evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg raising test (sitting
and supine).
The record in this matter demonstrates that plaintiff has at times satisfied each of the
criteria for Listing 1.04A. For example, MRI scans have documented nerve root impingement at
S 1 and plaintiff has complained of pain extending down his legs. See e.g. Tr. 302, 440. Plaintiff
has had positive bilateral straight leg raising tests, Tr. 303, and has experienced limited range of
motion, Tr. 368, paresthesia, Tr. 340, and weakness. Tr. 303. The ALJ did not discuss his
consideration of this evidence, however, when determining that plaintiff did not satisfy Listing
1.04.
Because the ALJ failed to conduct a thorough discussion of whether plaintiffs
degenerative disc disease meets or equals Listing 1.04 criteria, review of the ALJ's decision is
not meaningful and remand is appropriate. Radford v. Colvin, 734 F.3d 288, 295-296 (4th Cir.
2013). Upon remand, the ALJ should further expressly consider whether the evidence in the

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record relating to plaintiffs impairments after plaintiffs date last insured indicates that
plaintiffs impairments were pre-existing. See Bird v. Comm 'r of Soc. Sec. Admin., 699 F .3d
337, 341-42 (4th Cir. 2012).
CONCLUSION

For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 24] is
GRANTED and defendant's motion for judgment on the pleadings [DE 28] is DENIED. The
decision of the ALJ is REMANDED to the Acting Commissioner for further proceedings
consistent with the foregoing.

SO ORDERED, this /

~ay of August, 2014.

~t/.Ar4
;RRENCEW:BOYLE
UNITED STATES DISTRICT JUDGE

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