Brewer v. Colvin

Filing 31

ORDER GRANTING 22 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 24 Defendant's Motion for Judgment on the Pleadings. The decision of the ALJ is remanded to the Commissioner for further proceedings. Signed by US District Judge Terrence W. Boyle on 2/2/2015. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-705-BO
VICKY R. BREWER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on January 14, 2015, at Elizabeth City,
North Carolina.

For the reasons discussed below, this matter is remanded to the Acting

Commissioner for further proceedings.

BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying her claim for disability and disability insurance
benefits (DIB) pursuant to Title II of the Social Security Act. Plaintiff protectively filed for DIB
on November 15, 2010, alleging disability since October 20, 2010.

After initial denials, a

hearing was held before an Administrative Law Judge (ALJ) who issued an unfavorable ruling.
The decision of the ALJ became the final decision of the Commissioner when the Appeals
Council denied plaintiffs request for review on August 1, 2013. Plaintiff then timely sought
review of the Commissioner's decision in this Court. See Tr. 1.

DISCUSSION

Under the Social Security Act, 42 U.S.C. § 405(g), and 1383(c)(3), this Court's review of
the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial evidence is "such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Johnson v. Barnhart, 434 F .3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted).
An individual is considered disabled if he is unable "to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial
gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation
process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision
regarding disability can be made at any step of the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

At step one, if the Social Security Administration determines that the claimant is
currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination of impairments. If the claimant
has a severe impairment, it is compared at step three to those in the Listing of Impairments
("Listing") in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively presumed.

If not, at step four, the

claimant's residual functional capacity (RFC) is assessed to determine if the claimant can
perform his past relevant work. If so, the claim is denied. If the claimant cannot perform past
relevant work, then the burden shifts to the Commissioner at step five to show that the claimant,
based on his age, education, work experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R.
§ 416.920(a)(4).

At step one, the ALJ determined that plaintiff met the insured status requirements and
had not engaged in substantial gainful activity since her alleged onset date. Plaintiffs obesity,
depression, and low back pain were considered severe impairments at step two but were not
found alone or in combination to meet or equal a listing at step three. After finding plaintiffs
statements not entirely credible, the ALJ concluded that plaintiff could perform light work with
exertional and nonexertional limitations. The ALJ found that plaintiff could not return to her
past relevant work but that, considering plaintiffs age, education, work experience, and RFC,
there were other jobs that exist in significant numbers in the national economy that plaintiff
could perform. Thus, the ALJ determined that plaintiff was not disabled as of the date of his
decision.

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Plaintiff contends that the ALJ erred when not finding her neck pain to be a severe
impairment. An impairment will not be considered severe "only if it is a slight abnormality
which has such a minimal effect on the individual that it would not be expected to interfere with
the individual's ability to work, irrespective of age, education, or work experience." Evans v.

Heckler, 734 F .2d 1012, 1014 (4th Cir. 1984) (internal quotation and citation omitted).
"Ordinarily, this is not a difficult hurdle for the claimant to clear[.]" Albright v. Comm 'r of Soc.

Sec. Admin., 174 F.3d 473, 474 n.l (4th Cir. 1999).
Beginning in February 2012, plaintiff complained of cervical pain, with pain radiating
down her right arm and into her hand. Tr. 494-95. A subsequent MRI demonstrated mild to
moderate cervical spondylosis. Tr. 513-14. Plaintiff testified at the hearing before the ALJ that
she still had radiating pain and had trouble lifting with her right arm. In rejecting plaintiffs neck
pain as a severe impairment, the ALJ noted that "the evidence does not reflect the alleged
impairment has lasted or is expected to last for 12 months." Tr. 19. Based on the objective
medical evidence of spondylosis and degenerative changes throughout plaintiffs cervical spine,
Tr. 495, however, and in the absence of further explanation for his conclusion, the Court is
constrained to find that such conclusion, and the ALJ' s finding as a whole that plaintiffs cervical
pain was not a severe impairment, is not supported by substantial evidence.
Although the ALJ mentioned plaintiffs neck pain while assessing her RFC, the ALJ did
not expressly discuss what effect plaintiffs radiating cervical pain would have on her ability to
perform work in the national economy. Because of this, review ofthe ALJ's decision is not
meaningful and remand is appropriate. Radford v. Colvin, 734 F .3d 288, 295-296 (4th Cir.
2013).

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CONCLUSION

For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 22] is
GRANTED and defendant's motion for judgment on the pleadings [DE 24] is DENIED. The
decision ofthe ALJ is REMANDED to the Acting Commissioner for further proceedings
consistent with the foregoing.

TE
NCE W. BOYLE
UNITED STATES DISTRICT JU

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