Everette v. Astrue

Filing 31

ORDER GRANTING 23 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 25 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is REVERSED, and the case is REMANDED for an award of benefits consistent with this Order. Signed by US District Judge Terrence W. Boyle on 9/10/2013. 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
WESTERN DIVISION
No. 5:12-CV-561-BO
DALLASEVERETTE,

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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 23 & 25]. A hearing on this matter was held in Raleigh, North Carolina on
August 15,2013 at 10:00 a.m. For the reasons discussed below, plaintiff's motion is GRANTED,
defendant's motion is DENIED, and, accordingly, the judgment ofthe Administrative Law Judge
is REVERSED.
BACKGROUND
Plaintiff protectively filed for disability benefits on June 12, 2008. He alleged a disability
onset date of December 4, 2006 which was later amended to July 22, 2008. The claimant's
application was denied initially and upon reconsideration. The plaintiff then requested an
administrative hearing and one was held on January 13, 2010. On April 19, 2010 the presiding
Administrative Law Judge ("ALJ") issued her opinion that the plaintiff was not disabled. On
October 26, 2010 the Appeals Council denied the claimant's request for review, rendering the
ALI'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).

MEDICAL HISTORY
The plaintiff allegedly suffers from a meniscus tear of the right knee; disc space
narrowing and osteophytosis at C-5, C-6; chronic cervical sprain and degenerative disease of the
cervical spine; lumbosacral strain and degenerative disease of the lumbar spine; degenerative
joint disease of the right knee; and hypertension. [Tr. 14].
Plaintiff suffered a shoulder and neck injury in 1984 while playing football in the military
and has reported chronic stiffness and arthritis pain in his back thereafter. [Tr. 16]. Plaintiff was
diagnosed with hypertension in 1995, but it was not always well-controlled. [!d.]. Despite these
injuries and impairments, plaintiff spent approximately 21 years in the army. [!d.]. In 1996, a
podiatrist removed a bone spur from plaintiffs left ankle but damaged a nerve so that plaintiff
could not fully invert his ankle essentially ending his military career. [Tr. 41]. Plaintiff was also
involved in at least one motor vehicle accident before his onset date of December 4, 2006. [Tr.
16]. Yogesh Ghandi, M.D. diagnosed plaintiffwith lumbago in 2006. [Tr. 17]. After an MRI in
January, 2007, a radiologist found a tear of the medial meniscus, but the untreated tear was also
present in an August 2003 MRI. [!d.].
As of December 19, 2006, the Veterans Administration ("VA") found that plaintiff was
70% service connected disabled. [Tr. 366-67]. The VA determined disability ratings of 20%
limited ankle motion; 20% for paralysis of the upper radicular nerve group; 20% for
intervertebral disc syndrome; 20% for degenerative arthritis of the spine; 10% for hypertensive
vascular disease; and 10% for plaintiffs lower leg condition. [Tr. 417].
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. 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 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. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).

Here, the ALJ erred by not finding plaintiff disabled under the Medical Vocational
Guidelines ("grids"). The ALJ assessed a RFC for light work with the ability to sit, stand, or
walk at will with additional restrictions regarding pushing, pulling, overhead reaching, kneeling,
bending, crawling, and stooping. [Tr. 15]. Based upon this RFC, the ALJ determined that
plaintiff could no longer perform his past relevant work. [Tr. 22]. After establishing plaintiffs
RFC, the ALJ turned to a vocational expert ("VE") to determine if jobs exist in the national
economy for an individual with the claimant's age, education, work experience, and RFC. [Tr.
23]. Although the VE provided the ALJ with a list of jobs including some classified as light
(Production Assembler, Dictionary of Occupational Titles ("DOT") No. 706.687-010; Cashier,
DOT No. 211.462-010), and some classified as sedentary (Final Assembler, DOT No. 713.687018; Lens Inserting Assembly. DOT No. 713.687-026). [Tr. 91-92]. The job numbers the VE
supplied the ALJ with were for only positions that would be sedentary. [!d.]. The VE was
consistent in supplying the ALJ with job numbers only for positions that would actually be
sedentary even when the hypothetical limitations changed. [Tr. 92, 104]. The VE also stated that
no skills would transfer from plaintiffs past relevant work to any of the positions that he would
now be able to perform. [Tr. 95-97].
Because the jobs cited are at the sedentary exertion level, plaintiff should have been
found disabled pursuant to the grids. Plaintiff was 54 at the time of the ALJ' s decision and 52 at
the time ofthe alleged onset date. [Tr. 160 (showing plaintiffs date of birth)]. No skills from his
past work were transferrable. [Tr. 95-97]. Therefore, plaintiff should have been found disabled
pursuant to grid rule 201.14. Medical Vocational Guidelines 20 C.F .R. pt. 404, sub pt. P, App. 2 §
201.14 (2012).

CONCLUSION
For the foregoing reasons, the plaintiffs 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 of benefits consistent with
this Order.

SO ORDERED.
This jJ2day of September, 2013.

T RRENCE W. BOYLE
UNITED STATES DISTRICT