Dimauro v. Colvin

Filing 19

ORDER granting 11 Motion for Judgment on the Pleadings and denying 17 Motion for Judgment on the Pleadings. Signed by District Judge Terrence W. Boyle on 2/19/2016. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:15-CV-00034-BO
LYNDA A. DIMAURO,
Plaintiff,
v.

ORDER
CAROLYN W. COL VIN,
Acting Commissioner of Social Security,
Defendant.

This matter is before the Court on the parties' cross-motions for judgment on the
pleadings [D.E. 11, 17]. For the reasons detailed below, plaintiffs motion is GRANTED and
defendant's motion is DENIED. The decision of the Commissioner is REMANDED for an
award of benefits.

BACKGROUND
Plaintiff protectively filed an application for disability insurance benefits on December
23, 2011, alleging a disability beginning on September 17, 2008, subsequently amended to
August 26, 2009. The claim was denied initially and upon reconsideration. A hearing was held
before an Administrative Law Judge ("ALJ") via video-conference on September 9, 2013. In a
decision dated December 10, 2013, the ALJ found that plaintiff was not disabled. Tr. 14-23. The
Appeals Council denied plaintiffs request for review on December 31, 2014, rendering the
ALJ's decision the final decision of the Commissioner. Id. at 3-6. Plaintiff commenced this
action and filed a complaint pursuant to 42 U.S.C. 405(g) on March 2, 2015. [D.E. I].

MEDICAL HISTORY

Plaintiff broke her right arm in a fall at work in September 2008. She underwent right
elbow diagnostic arthroscopy, right elbow arthroscopic loose body removal, and a right elbow
arthroscopic capitellar microfracture procedure in October 2008. She subsequently had right
ulnar nerve transposition surgery in December 2010. Since that time, she has suffered from
reflex sympathetic dystrophy ("RDS"), also known as complex regional pain syndrome
("CRPS"). As a result of this condition, plaintiff has hypersensitivity down her arm, curling of
her fingers with paresthesia, and little sensation in her fingers. She experiences pain and swelling
and cannot bear anything touching her arm, even clothing or jewelry. She stated that she cannot
even lift a cup of coffee. Despite treatment with a pain management specialist, her pain has
worsened over time. She stated that the medication she takes for pain has affected her ability to
concentrate.
Plaintiff also has a history of back surgery in 2003. She is also diabetic. Her diabetes was
previously well-controlled with medication. However, she reported that her pain and medications
have impaired her ability to regulate her blood-sugar levels.
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.

2

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
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 oflmpairments. See 20 C.F.R. Part
404, Subpart P, App. 1. If the impairment is listed in the Listing oflmpairments 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. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).
After finding that the plaintiff had not engaged in any substantial gainful activity since
her alleged onset date at step one, the ALJ determined that plaintiffs conditions of status post
fracture of the right upper extremity with nerve damage, history of back surgery, and diabetes
were severe impairments at step two. Tr. at 16. The ALJ then found that plaintiff did not have an
impairment or combination of impairments that met or equaled a listing at step three. Id. The
ALJ determined that the plaintiff had an RFC to perform light work with the following

3

exceptions: can occasionally push and pull with the dominant right upper extremity; can never
climb ropes, ladders, or scaffolds; can occasionally climb ramps and stairs, balance, stoop, kneel,
crouch or crawl; can occasionally handle (gross manipulation), finger (fine manipulation), and
feel with the dominant right upper extremity; and should avoid concentrated exposure to moving
or dangerous machinery and unprotected heights. Id. at 17. At step four, the ALJ found that
plaintiff was unable to perform her past relevant work as a nurse or nurse supervisor. Id. at 22.
At step five, the ALJ found that, considering her age, education, work experience and RFC, there
were jobs that existed in significant numbers in the national economy that she was capable of
performing, including furniture rental clerk, usher, and counter clerk. Id. at 23. Thus, the ALJ
found that plaintiff was not disabled as of the date of her decision. Id.
Here, substantial evidence does not support the ALJ' s determination. The error lies in the
ALJ's consideration of the medical opinion evidence. An ALJ makes an RFC assessment based
on all of the relevant medical and other evidence. 20 C.F.R. § 404.1545(a)(3). The opinion of a
treating physician must be given controlling weight if it is not inconsistent with substantial
evidence in the record and may be disregarded only if there is persuasive contradictory evidence.
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987); Mitchell v. Schweiker, 699 F.2d 185 (4th
Cir. 1983). Even if a treating physician's opinion is not entitled to controlling weight, it still may
be entitled to the greatest of weight. SSR 96-2p.
In May 2009, plaintiff's first treating orthopedist, Dr. Edward Brown, placed her at
maximum medical improvement, gave her a 13 percent disability rating, and limited her to work
with only one hand. Tr. at 225-43. Dr. Deanna Boyette, also a treating orthopedist, similarly
opined in December 2011 that plaintiff had reached maximum medical improvement, that she

4

had a 20 percent disability rating, and that she had permanent work restrictions limiting her to
light duty with no use of the right upper extremity and no lifting. Id. at 327.
The ALI dismissed these opinions. Without assigning any weight, the ALI noted that Dr.
Brown's opinion preceded the amended onset date by three months. Id. at 19. She also gave Dr.
Boyette's findings only partial weight, finding they were inconsistent with a November 2011
Functional Capacity Evaluation ("FCE"). Id. at 20. The FCE, to which the ALI gave significant
weight, found that plaintiff could lift up to nine pounds with her right upper extremity and up to
19 pounds with both hands. Id. at 272-88. However, as plaintiff points out, during the FCE, she
was grimacing and remarked that she was experiencing pain. Plaintiff also reported that the FCE
examiner informed her she would be deemed noncompliant if she limited her tasks during the
exam because of pain. Id. at 203. The medical evidence further demonstrates that both Dr.
Boyette and Dr. Tellis observed significant exacerbation of plaintiffs pain symptoms following
the FCE. Id. at 325-26, 526. This evidence suggests that the FCE failed to accurately reflect
plaintiffs limitations.
The ALI also afforded significant weight to an independent medical examination
("IME") performed by Dr. Scott Sanitate in April 2010. Dr. Sanitate noted that the overall exam
was "relatively benign," although she had hypersensitivity over the superficial radial nerve
distribution. He assessed superficial radial neuropathy and opined that she could perform light
work. However, Dr. Sanitate is a one-time examiner who made his assessment prior to plaintiffs
second surgery. Additionally, contrary to Dr. Sanitate's diagnosis, plaintiffs pain management
specialist, Dr. Angelo Tellis, continued to diagnosis plaintiffs condition as CRPS. Notably, the
ALI gave significant weight to Dr. Tellis's findings.

5

Moreover, the opinions of Drs. Brown and Boyette are consistent with the medical
statement of Dr. Tellis. Plaintiff regularly reported pain of 5 out of 10, increasing to 7 out of 10
by October 2012. In December 2011, Dr. Tellis, found that plaintiff was limited to lifting less
than 5 pounds with her right arm and that she was limited to grasping, turning, and twisting
objects and perform fine manipulations only 2 hours in an 8 hour workday. Id at 486. Thus, all
three of plaintiff's treating providers opined that plaintiff's use of her right upper extremity was
significantly impaired.
The ALJ's decision to discount the opinions of Drs. Brown and Boyette, and to ignore
the lifting restriction determined by Dr. Tellis, are determinations unsupported by substantial
evidence. The Court concludes that the diagnoses, treatment, prognosis and limitations assessed
by plaintiff's treating providers provide a consistent, comprehensive, and longitudinal
assessment of her condition. Under the factors listed in 20 C.F.R. § 404.1527( c), their opinions
are deserving of more weight than the opinions of two, one-time examiners.
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). The Fourth Circuit has held that it is appropriate
for a federal court to "reverse without remanding where the record does not contain substantial
evidence to support a decision denying coverage under the correct legal standard and when
reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493
F.2d 1002, 1012 (4th Cir. 1974). Remand, rather than reversal, is required when the ALJ fails to
explain his reasoning and there is ambivalence in the medical record, precluding a court from
"meaningful review." Radfordv. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).

6

The Court, in its discretion, finds that reversal and remand for an award of benefits is
appropriate in this instance. Plaintiffs treating physicians limited her to work with only her left
upper extremity. The VE testified that such a limitation would preclude all substantial gainful
activity. Tr. at 30. Accordingly, there is no benefit to be gained from remanding this matter for
further consideration and reversal is appropriate.

CONCLUSION
For the foregoing reasons, plaintiffs motion for judgement on the pleadings is
GRANTED, the defendant's motion for judgment on the pleadings is DENIED. The decision of
the Commissioner is REMANDED for an award of benefits.
SO ORDERED.
This

_/_j__ day of~~~
TERRENCE W. BOYLE
UNITED STATES DISTRIC

7