Marrow v. Colvin
ORDER granting 17 Motion for Judgment on the Pleadings and denying 19 Motion for Judgment on the Pleadings. Signed by District Judge Terrence W. Boyle on 1/13/2017. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CAROLYN W. COLVIN,
Acting Commissioner ofSocial Security,
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 December 15, 2016, at Raleigh
City, North Carolina.
For the reasons discussed below, the decision of the Acting
Commissioner is reversed.
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 his claim for disability and disability insurance
benefits (DIB) pursuant to Title II of the Social Security Act and supplemental security income
pursuant to Title XVI of the Social Security Act. Plaintiff protectively filed for DIB and SSI on
July 19, 2011, alleging disability since April 14, 2011. 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.
decision in this Court.
Plaintiff then timely sought review of the Commissioner's
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
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
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.
At step one, the ALJ determined that plaintiff met the insured status requirements through
December 31, 2014, and had not engaged in substantial gainful activity since his alleged onset
date. Plaintiffs obesity, hearing loss, diabetes mellitus, bilateral knee degenerative joint disease
with a history of surgery on the right knee, obstructive sleep apnea, an affective disorder, and
umbilical hernia with recent repair surgery were considered severe impairments at step two but
were not found alone or in combination to meet or equal a Listing at step three. The ALJ
concluded that plaintiff had the residual functional capacity (RFC) could perform a reduced
range of light work. The ALJ found that plaintiff could not return to his past relevant work as a
tractor trailer truck driver or maintenance repairer, but that, considering plaintiffs age,
education, work experience, and RFC, there were other jobs that existed in significant numbers
in the national economy which plaintiff could perform, including photocopy machine operator
and office helper. Thus, the ALJ determined that plaintiff was not disabled as of the date of his
decision, December 12, 2013.
The ALJ's decision in this instance is not supported by substantial evidence. An ALJ
makes an RFC assessment based on all of the relevant medical and other evidence. 20 C.F .R. §
404.1545(a). An RFC should reflect the most that a claimant can do, despite the claimant's
limitations. Id. An RFC finding should also reflect the claimant's ability to perform sustained
work-related activities in a work setting on regular and continuing basis, meaning eight-hours per
day, five days per week. SSR 96-8p; Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006).
Here, in finding that plaintiff could perform light work with limitations, the ALJ found
plaintiffs alleged level of impairment was not supported by the record. Specifically, in order to
find that plaintiff could perform light work, even with a sit/stand option every hour, the ALJ had
to conclude that plaintiff could walk for up to six hours in an eight hour day. 20 C.F.R. §
404.1567. Further, in imposing a sit/stand option every hour, the ALJ had to conclude that
plaintiff could stand for up to an hour at a time. These conclusions are not supported by the
Plaintiffs degenerative knee problems began in 2010, and plaintiff reported continued or
worsening pain and limitations in 2011, 2012, and 2013. See Tr. 493 (severe knee pain in
August 2011); Tr. 470 (reports of feeling depressed due to increased pain and limitations from
his knees in August 2011); Tr. 616 (reports quite a bit of patellofemoral pain, x-ray reveals mild
to moderate patellofemoral disease bilaterally in May 2012); Tr. 626 (meniscal tear, extensive
degenerative changes identified in July 2012); Tr. 623 (reports of pain in October 2012 following
arthroscopic medial meniscal debridement and chondroplasty in August 2012); Tr. 622
(continues to complain of pain after standing for long periods and sitting in November 2012); Tr.
621 (noted to have considerable bilateral knee degenerative joint disease in April 2013); Tr. 641
(continued complaints of pain and noted that pain relief from steroid injections lasted only two to
three weeks in July 2013).
The ALJ states in his decision that he has accounted for plaintiffs knee pain by
restricting his lifting, carrying, pushing, pulling, climbing, and postural activities, as well as by
including a sit/stand option, Tr. 142, but the ALJ erred in discounting plaintiffs credibility to the
extent that the above limitations would sufficiently account for plaintiffs complaints. The Court
recognizes that an ALJ' s credibility determination should be afforded great deference, Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984), but finds here that the objective bases used by the
ALJ to discredit plaintiffs statements regarding the persistence and intensity of his pain are not
germane to the inquiry. Specifically, the ALJ noted that, while plaintiff consistently reported
knee pain to his treatment providers, exam notes failed to show significant deficits in extremity
strength, range of motion, or gait. Tr. 139. That plaintiffs motor strength, for example, was
unimpaired does not under these circumstances suggest that plaintiffs allegations of pain were
not credible. See, e.g., Watson v. Colvin, No. 5:14-CV-00809-FL, 2016 WL 319629, at *6
(E.D.N.C. Jan. 4, 2016), report and recommendation adopted, No. 5:14-CV-809-FL, 2016 WL
311267 (E.D.N.C. Jan. 25, 2016) (finding of full strength does not negate pain allegations where
claimant diagnosed with chronic pain syndrome).
Indeed, "[b]ecause pain is not readily
susceptible of objective proof, however, the absence of objective medical evidence of the
intensity, severity, degree or functional effect of pain is not determinative." Hines, 453 F.3d at
564-65 (emphasis in original).
The ALJ's credibility assessment of plaintiffs sister was also flawed. Plaintiffs sister
testified that plaintiff had significant knee pain which limited his walking and ability to
participate in other activities.
Tr. 141. She further testified that plaintiff had few mental
limitations. The ALJ afforded Ms. Marrow's opinions regarding plaintiffs mental limitations
great weight "as they indicate the claimant had no significant interpersonal limitations or
significant mental functioning issues generally," but afforded her opinions as to plaintiffs
physical limitations little weight as "they are based solely on the claimant's reports and observed
activity." Id. Here, then, the ALJ engaged in just the sort of analysis that was rejected by the
court of appeals in Mascio v. Colvin, 780 F.3d 632, 639 (4th Cir. 2015), which held that
determining first what a claimant's ability to work is and then using that to determine whether a
statement is credible "gets things backwards." (citation omitted).
Finding plaintiffs statements that he could stand for five to ten minutes at time, Tr. 26,
and that he could not walk for more than 200-300 feet, Tr. 296, as well as plaintiffs sister's
statements that plaintiffs knee pain greatly limited his walking ability, even only partially
credible undermines the ALJ' s decision that plaintiff could perform light work with restrictions
as provided in the RFC such that it is not supported by substantial evidence.
Reversal for Award ofBenefits
The decision of whether to reverse and remand for benefits or reverse and remand for a
new hearing is one that "lies within the sound discretion of the district court." Edwards v.
Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987); see also Evans v. Heckler, 734 F.2d 1012, 1015
(4th Cir. 1984). When "[o]n the state of the record, [plaintiffs] entitlement to benefits is wholly
established," reversal for award of benefits rather than remand is appropriate. Crider v. Harris,
624 F.2d 15, 17 (4th Cir. 1980). The Fourth Circuit has held that it is appropriate for a federal
court to "reverse without remanding where the record does not contain substantial evidence to
support a decision denying coverage under the correct legal standard and when reopening the
record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002,
1012 (4th Cir. 1974). Remand, rather than reversal, is required when the ALJ fails to explain his
reasoning and there is ambivalence in the medical record, precluding a court from "meaningful
review." Radfordv. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
The Court in its discretion finds that reversal and remand for an award of benefits is
appropriate in this instance as the ALJ has clearly explained the basis for his decision and there
is no ambivalence in the medical record. The record properly supports a finding that plaintiffs
limitations would prevent him from performing the walking and standing requirements of light
work or a sit/stand option every hour. Due to plaintiffs age, 1 limited education, limitation to
unskilled work, and past relevant work at the medium level, a finding that he could perform the
exertional limitations of sedentary work would direct a finding of disability. 20 C.F .R. Pt. 404,
Subpt. P, App. II§ 201.10. Accordingly, there is no benefit to be gained from remanding this
matter for further consideration and reversal is appropriate.
For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 17] is
GRANTED and defendant's motion for judgment on the pleadings [DE 19] is DENIED. The
Plaintiff turned fifty in October 2013, prior to the date of the ALJ's decision. Tr. 142.
decision of the ALJ is REVERSED and this matter is REMANDED to the Acting Commissioner
for an award of benefits.
SO ORDERED, this
_j_J_ day of January, 2017.
UNITED STATES DISTRICT JUDG
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