McKenzie v. Colvin

Filing 29

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 this matter is remanded for an award of benefits. Signed by US District Judge Terrence W. Boyle on 9/24/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-804-BO
LORETTA MCKENZIE,

)
)
)
)

Plaintiff,

v.

)

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

)
)
)
)
)

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
September 19, 2014 at 11 :3 0 a.m. The Commissioner appeared at the hearing via video feed. 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 September 14, 201 0, plaintiff protectively filed an application for a period of
disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§
401-33, 1381-83f, and an application for supplemental security income under Title XVI of the
Act. Plaintiff alleges disability beginning February 18, 2008, due to "severe cubital tunnel and
elbows, and carpal tunnel in both arms and wrists. [Tr. 229]. Plaintiffs applications were denied
initially and upon reconsideration. On July 16, 2012, plaintiff appeared and testified before an
administrative law judge ("ALJ"). [Tr. 26-55. On August 28, 2012, the ALJ denied plaintiffs
application. [Tr. 14-25]. The Appeals Council denied plaintiffs request for review rendering the

ALJ's decision the final decision of the Commissioner. Plaintiff now seeks review of that
decision pursuant to 42 U.S.C. § 405(g).
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.P.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.P.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

2

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).
Plaintiff alleges that the ALJ erred by not properly evaluating the medical record and
plaintiffs credibility resulting in an RFC finding that is not supported by substantial evidence.
The ALJ found that plaintiff had an RFC to perform simple light work with frequent use of her
hands for bilateral gross manipulation and occasional overhead reaching, occasional lifting and
carrying of 20 pounds and frequent lifting and carrying of 10 pounds. [Tr. 19]. The ALJ then
found based on vocational expert ("VE") testimony that plaintiff could perform jobs existing in
significant numbers in the national economy and therefore plaintiff was not disabled. [Tr. 24].
Here, the ALJ' s decision is not supported by substantial evidence. The ALJ erred in his
credibility finding as plaintiffs testimony is in actuality supported by the objective medical
evidence. Plaintiff complained of worsening finger and arm pain throughout 2008 and 2009. (Tr.
34 7-67, 549]. She stated that her left hand was as bad as her right, she could not lift over five
pounds and that it affected her activities of daily living. [Tr. 39, 44--45]. The medical evidence
supports her statements. In July, 2010 plaintiff underwent a nerve conduction study of both arms
which revealed severe bilateral slowing of the ulnar nerve at the elbows, moderate slowing of the
median nerve at the right wrist involving both sensory and motor fibers and mild slowing of the
median nerve at the left wrist involving only the sensory fibers. [Tr. 591-92]. By October 2010,
an occupational therapy exam revealed that she could only perform her activities of daily living
with pain and difficulty, she was unable to push or pull and could not lift even 5 pounds with her
right hand. [Tr. 606-07].

3

The ALJ also failed to mention or misinterpreted several important pieces of medical
evidence in determining her RFC. He wrote that plaintiffs follow up records to her August 2010
surgery proved that she had gotten better. [Tr. 22]. However, as of September 2010, she was still
having significant symptoms, in October 2010 her parasthesias were still present and she was
unable to make a fist and she was unable to lift 5 pounds with her right hand. [Tr. 601, 603, 607].
In April 2011, she could only weakly pinch, grasp, and manipulate objects with both hands
resulting in severe impairment in her ability to manipulate objects and lift them. [Tr. 614]. The
evidence in the record makes it quite clear that plaintiff has not experienced significant
improvement.
These errors by the ALJ substantially affected the RFC he found because he discounted
the medical record which overwhelmingly supports plaintiffs testimony regarding the severe
limitations in her ability to manipulate objects and lift them. Plaintiffs correct RFC as supported
by the record should only allow her to use her hands occasionally and to not lift more than five
pounds. This difficulty in using her hands is confirmed by the findings of Dr. McFarlane, the
nerve conduction study, Dr. Cohan, her physical therapist, and plaintiffs own testimony.
Therefore it is clear that the ALJ's determination that she could lift 10-20 pounds and can
frequently use her hands to manipulate objects is unsupported by substantial evidence.
The VE at the hearing testified that if plaintiff were unable to lift more than 5 pounds and
could only occasionally use her hands for both fine and gross manipulation, she would be
disabled from working. [Tr. 53]. Because the Court finds that plaintiffs proper RFC would limit
her to lifting no more than 5 pounds and to occasional use of her hands, the Court also finds that
plaintiff would be disabled based on the VE testimony. Because the VE testified as to this
possibility at the hearing there is no need to remand the matter for further consideration by the

4

Commissioner. See Edwards v. Bowen, 672 F. Supp. 230, 236 (E.D.N.C. 1987) (finding that 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"); Coffman v. Bowen, 829 F.2d
514, 519 (4th Cir. 1987) (reversal without remand is appropriate where the record does not
contain substantial evidence to support a decision denying disability, and reopening the record
for more evidence would serve no purpose). An award of benefits here is proper. Accordingly
the decision of the Commissioner is reversed and the matter is remanded to the Agency for an
award of benefits consistent with this order.

CONCLUSION
For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is
GRANTED, and the decision of the Commissioner is REVERSED. Accordingly, this case is
REMANDED for an award of benefits consistent with this Order.

SO ORDERED.
This ~day of September, 2014.

~LE~
UNITED STATES DISTRICT J DGE

5