Sutton v. Colvin

Filing 31

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 back to the Commissioner for further proceedings consistent with this decision. Signed by US District Judge Terrence W. Boyle on 8/27/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:13-CV-131-BO
MELISSA LEIGH SUTTON,

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Plaintiff,

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v.

CAROLYN COLVIN,
Acting Commissioner of Social Security,

ORDER

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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 & 28]. A hearing on this matter was held in Raleigh, North Carolina on
August 20, 2014 at 2:00p.m. The Commissioner appeared at the hearing via video feed. For the
reasons discussed below, this matter is REMANDED for further consideration by the
Commissioner.

BACKGROUND
Plaintiff is a 45 year old woman who worked as a dental hygienist. [Tr. 27]. On July 6,
2011, Ms. Sutton filed an application for disability insurance benefits alleging an onset date of
March 30, 2010. [Tr. 22]. This application was denied initially and upon reconsideration. On
December 11, 2012 an Administrative Law Judge ("ALJ") held a hearing and then rendered an
unfavorable decision on December 21, 2012. The Appeals Council denied the claimant's request
for review, rendering the ALJ's decision the final decision of the Commissioner. The plaintiff
now seeks judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g),
1383(c)(3).

Plaintiff was 40 years old at the time of her alleged onset date. She has a high school
education with additional training in dental hygiene, the field in which she worked. [Tr. 38-39].
She alleges disability due to mental impairments which include depression, bipolar disorder, and
anxiety disorder. The ALJ found plaintiffs bipolar disorder, anxiety/panic disorder, and history
ofpolysubstance abuse to be severe impairments. [Tr. 23].
DISCUSSION
When a social security claimant appeals a final decision of the Commissioner, the 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)). lfthe 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

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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, plaintiff alleges that the ALJ erred by failing to give controlling weight to the
opinion of plaintiffs treating physician and by failing to include all of plaintiffs non-exertional
limitations in the hypothetical to the vocational expert ("VE") as listed by the treating physician.
"A treating physician's opinion controls unless it is unsupported by medically acceptable
clinical and laboratory diagnostic techniques or if it is inconsistent with other substantial
evidence of record." Stephens v. Astrue, 533 F. Supp. 2d 598, 600 (E.D.N.C. 2008) (citing 20
C.F.R. § 404.1527(d); Craig v. Chafer, 76 F.3d 585, 590 (4th Cir. 1996)). The ALJ found that
the opinion of plaintiffs treating physician, Dr. Hunsinger, [Tr. 474-77] was due little weight
because the treatment records from LeChris counseling did not support the degree of limitation
in making occupational adjustments that Dr. Hunsinger found. [Tr. 26].

Here, the ALI's

decision to give Dr. Hunsinger's opinion less than controlling weight is not supported by
substantial evidence. A review of the record shows that Dr. Hunsinger's opinion is adequately
supported by substantial evidence of record. The record shows that Ms. Sutton had a highly
unstable mental condition with many GAF scores in the 41-50 range indicating serious
symptoms including suicidal ideation and serious impairment in social and occupational
functioning. DSM-IV-TR at 34. There were sixteen instances when Ms. Sutton's GAF scores

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indicated serious impairment in social and occupational functioning. [Tr. 291, 439, 440, 441,
444, 445, 446, 447, 448, 449, 453, 470, 478, 481, 482, 486]. The ALJ mentioned only one of
these scores. [Tr. 26]. Further, the ALJ stated that Ms. Sutton "generally remained stable
throughout treatment" after August 2011. [Tr. 26]. However, the seven instances when Sutton
was in the "serious symptoms" range belie this. [Tr. 439,440,441, 478, 481 482, 486]. It is clear
that the ALJ failed to fully consider the parts of the record which support Dr. Hunsinger's
opinion and as such the ALJ' s decision to afford it limited weight is not supported by substantial
evidence. The opinion is entitled to controlling weight.
Because the ALJ erred in considering Dr. Hunsinger's opinion, the hypothetical to the
VE which did not include all of the limitations contained in Dr. Hunsinger's opinion was also
erroneous. Further, the hypothetical to the VE failed to include all of the limitations in the mental
RFC assessment in this case. Specifically not mentioned was the limitation that Ms. Sutton " can
adapt in a low stress environment." [Tr. 96; 26; 52]. Finally, the ALJ failed to include the
frequency and duration of Ms. Sutton's lapses of concentration, persistence, and pace in the
hypothetical to the VE and his RFC finding. For these reasons the hypothetical was flawed and
therefore the ALJ' s decision is not supported by substantial evidence.
As the Court cannot make findings and determinations in the first instance, the
appropriate action here is to remand the case to the Commissioner. Meyer v. Astrue, 662 F.3d
700, 707 (4th Cir. 2011). Upon remand, the Commissioner is to consider how affording the
opinion of Dr. Hunsinger the controlling weight it is due affects her decision. Further, if
applicable, the ALJ is to provide an appropriate hypothetical to the VE which includes all
limitations affecting the plaintiff.

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CONCLUSION

For the foregoing reasons, the plaintiffs motion for judgment on the pleadings ts
GRANTED, and the matter is REMANDED to the Commissioner for further proceedings
consistent with this decision.

SO ORDERED.
This 'i}day of August, 2014.

T RENCE W. BOYLE
UNITED STATES DISTRICT JUDG

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