Strickland v. Colvin

Filing 27

ORDER GRANTING 20 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 23 Defendant's Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner. Signed by US District Judge Terrence W. Boyle on 8/4/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-357-BO
MICHAEL ANTHONY STRICKLAND,
Plaintiff,

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CAROLYN COLYIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 21 & 23]. A hearing on this matter was held in Elizabeth City, North Carolina on
July 28, 2014 at 11:00 a.m. For the reasons discussed below, this matter is REMANDED for
further consideration by the Commissioner.

BACKGROUND
On May 13, 2010, plaintiff applied for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401-33, alleging an onset date of January 2, 2008. The claims
were denied initially and upon reconsideration. On June 3, 2011, an Administrative Law Judge
("ALJ") held a hearing and rendered an unfavorable decision on November 3, 2011. 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).
Mr. Strickland is 58 years of age and has an eighth grade education. Mr. Strickland
complains of chronic pain in his left shoulder, elbow, and wrist, and arthritis, chronic obstructive

pulmonary disease, shortness of breath, peripheral vascular disease, and degenerative disc
disease. The relevant time period in this case is from January 2, 2008 through December 31,
2009 -plaintiff's date last insured.
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
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

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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 found that plaintiff had the following severe impairments: left wrist
fracture; lateral epicondulitis; hypertension; and peripheral vascular disease. [Tr. 33].
Disagreeing with the ALJ' s decision, plaintiff submitted additional evidence in support of his
request for reconsideration in front of the Appeals Council. [Tr. 4]. The additional evidence
plaintiff sought to have considered by the Appeals Council included the settlement of his
worker's compensation claim [Tr. 265], a December 23, 2011 medical source statement by Dr.
Gallup [Tr. 408-13], Angela Chambers's January 2, 2012 statement in support of plaintiffs
disability claim [Tr. 266-67], and a January 4, 2012 medical source statement by Dr. Gallup [Tr.
415-17].
Plaintiff notes that he filed this new and material evidence to the Appeals Council which
admitted it into the record, but did not assess it. As no fact finder has assessed the weight of this
evidence, Mr. Strickland asks this Court to remand the matter to the Commissioner for proper
consideration. While the Appeals Council's denial of review itself is not subject to judicial
review, any evidence that the Appeals Council incorporated into the record is subject to this
Court's substantial evidence review. Meyer v. Astrue, 662 F.3d 700, 704-06 (4th Cir. 2011).
When, as here, the Appeals Council does not articulate its reasons for denying review and the
ALJ has not considered new and substantial evidence, judicial review is not necessarily rendered
impossible. Id. at 707. However, a finding that the decision of the Commissioner is or is not

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supported by substantial evidence is only possible when the record as a whole is so clearly onesided as to make clear the proper determination. !d.; cf Smith v. Chater, 99 F.3d 635, 638-39
(4th Cir. 1996) (concluding that substantial evidence supported the ALI's findings after
reviewing new evidence); Wilkins v. Secretary of Health and Human Servs., 953 F.2d 93, 96 (4th
Cir. 1991) (concluding that substantial evidence did not support the ALJ' s findings after
reviewing new evidence). Here, as in Meyer, after considering the record as a whole, the Court
cannot determine whether substantial evidence supports a denial of benefits here. 662 F.3d at
707. Here the additional evidence supports the opinions of Dr. Gallup that were before the ALJ
and provides specific restrictions related to plaintiff's ailments which were not considered by the
ALJ. Further, plaintiff's worker's compensation settlement should be discussed by the ALJ. See
Greco v. Colvin, 2014 WL 3571523, *3 (D.S.C. June 17, 2014) (explaining that an ALJ should

discuss the consideration given to a worker's compensation matter). As "no fact finder has made
any findings as to [the new evidence] or attempted to reconcile that evidence with the conflicting
and supporting evidence in the record[,]" this Court must remand the case for further
consideration as it cannot make findings and determinations in the first instance. Meyer, 662
F.3d at 707.
CONCLUSION

For the foregoing reasons, the plaintiff's motion for judgment on the pleadings is
GRANTED, and the matter is REMANDED to the Commissioner for further proceedings
consistent with this decision.
SO ORDERED.
This

!i day of August, 2014.

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UNITED STATES DISTRICT J

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GE