Greene v. Astrue

Filing 33

ORDER GRANTING 18 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 26 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is REVERSED, and this case is REMANDED for an award of benefits. Signed by US District Judge Terrence W. Boyle on 2/11/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-28-BO
JOSEPH A. GREENE,

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Plaintiff,

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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 18 & 26]. A hearing on this matter was held in Raleigh, North Carolina on
January 30, 2014 at 4:15p.m. For the reasons discussed below, plaintiffs motion is GRANTED,
defendant's motion is DENIED, and, accordingly, the judgment of the Commissioner is
REVERSED.

BACKGROUND
On June 27, 2005, plaintiff protectively filed an application for a period of disability and
disability insurance benefits, alleging a disability onset date of November 6, 2002 [Tr. 41-42,
46]. His application was denied initially and upon reconsideration. During a video hearing on
June 27, 2007, plaintiff testified, represented by an attorney, and a vocational expert testified.
[Tr. 818--62]. On August 31, 2007, an Administrative Law Judge ("ALJ") found plaintiff not
disabled. [Tr. 43-56]. On December 9, 2008, the Appeals Council remanded the case to an ALJ
[Tr. 99-102]. A second hearing was held on March 22,2009. [Tr. 798-817]. On May 12,2009, a
new ALJ found plaintiff not disabled. [Tr. 515-31]. On October 22, 2010, the Appeals Council

remanded the case to an ALJ again. [Tr. 532-35]. The Appeals Counil also directed that on
remand, plaintiffs subsequent claims for Title II and Title XVI benefits on June 12, 2009, be
associated with plaintiffs initial claim for Title II. [Tr. 534]. A third hearing was held on July
22,2011. [Tr. 751-97]. On October 3, 2011, a third ALJ found plaintiff not disable. [Tr. 19-39].
On November 13, 2012, the Appeals Council denied plaintiffs request for review rendering the
ALJ' s decision the final decision of the Commissioner. On January 10, 2013, plaintiff filed this
action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. §
405(g).
MEDICAL HISTORY

The instant claim originated with injuries sustained in an on-the-job accident. [Tr. 10627]. Medical treatment was thereafter directed by the employer pursuant to N.C Gen. Stat. § 9725. An MRI done on April 29, 2003, noted degenerative changes as well as spinal stenosis. [Tr.
277]. A second MRI was done on June 18, 2004 which also noted multilevel degenerative disc
disease and facet arthropathy as well as central and neural foramina! canal stenosis. [Tr. 324-25].
Exercising his right to a second opinion examination with a physician of his choice pursuant to
N.C. Gen. Stat. § 97-25, Mr. Greene saw a Dr. Derian. [Tr. 326-30]. Dr. Derian classified Mr.
Greene's condition as lumbar degenerative disc disease at L3-S1 with herniated nucleus pulposus
at L5-S1, and lumbar radiculopathy. [Tr. 326]. Dr. Derian believed surgery was necessary. [!d.].
The employer then sent Mr. Greene back to their own physician, Dr. Rice, who found that
surgery was a reasonable option based on the last MRI scan. [Tr. 331 ].
After two recommendations for surgery, the employer then sent Mr. Greene to Dr. Lestini
for an independent medical examination. [Tr. 354-56]. Dr. Lestini opined that he did not think
surgery was the correct solution at the time, and instead suggested aggressive weight loss and

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paraspinal strengthening measures. [Tr. 355]. Surgery was then denied. The worker's
compensation matter was resolved on May 17, 2005, subsequent to litigation. [Tr. 108].
The ALJ found that Mr. Greene has the following severe impairments: degenerative disc
disease/herniated disc, obesity, acute stress disorder, and depression. [Tr. 25]. The ALJ found
that claimant did not meet the Listing. [Tr. 26].
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 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. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).
Here, the ALJ erred at step three by finding that plaintiff did not meet the requirements
for disorders of the spine under Section 1.04 of the Social Security Administration's Listing of
Impairments. Listing 1.04 of the Commissioner's Listing of Impairments provides is met when
the claimant suffers from a spinal disorder such as a herniated nucleus pulposus, spinal stenosis,
osteoarthritis, degenerative disc disease or facet arthritis resulting in compromise of the nerve
root or the spinal cord with evidence of nerve root compression characterized by neuroanatomical distribution of pain, limitation of motion of the spine, motor loss accompanied by
sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising
test. 20 C.F.R. Part 404, Subpt. P. App. 1 § 1.04.
The record is filled with evidence from board certified orthopaedic surgeons and the CT
and MRI scans they ordered that show plaintiff suffers from herniated nucleus pulposus, spinal
stenosis, degenerative disc disease, and facet arthopathy that result in neuro-anatomical
distribution of pain such as lumbar radiculopathy. [Tr. 277, 324-26, 331, 354, 421, 425]. Sensory
loss was noted on examination when deep tendon reflexes were found to be generally diminished
throughout the lower extremities and there was also diminished sensation in the left lower
extremity in a stocking distribution. [Tr. 424]. Lumbar radiculopathy was noted as well. [Tr.

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326]. Compromise of nerve roots is noted by two different doctors. [Tr. 355, 425]. Straight leg
raises were noted to be positive on the left by three physicians. [Tr. 329, 342-43, 348-49, 424].
Surgery was recommended by three board certified orthopaedists. [Tr. 326, 331, 425].
The ALJ' s finding that plaintiff does not meet the Listing is not supported by substantial
evidence. The ALJ found that the record did not demonstrate that the claimant suffers from a
disorder of the spine resulting in a compromise of the nerve root or the spinal cord with evidence
of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test. [Tr. 26]. This is clearly contrary
to the record as recited above. Substantial evidence in the longitudinal record supports a finding
that Listing 1.04A is met in this case. Disability is conclusively presumed when there is a finding
of a severe impairment that meets or is equal to a Listed impairment at 20 C.P.R. § 404, Subpt P,
App. 1.
Accordingly, Mr. Greene is disabled under Listing 1.04A. This Court reverses the
decision of the Commissioner and awards benefits to petitioner. Reversal without remand is
appropriate where, as here, the record does not contain substantial evidence to support a decision
denying disability, and reopening the record for more evidence would serve no purpose. Coffinan
v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987). Mr. Greene's case has been pending for nearly nine

years. There have already been three (3) hearings at the administrative level in this case. Mr.
Greene was no longer insured for benefits after December 31, 2008, so no additional evidence
could be taken in this case which renders additional proceedings pointless.

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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

J-t day ofF ebruary, 20 14.
T
ENCE W. BOYLE
UNITED STATES DISTRIC

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