Jones v. Colvin

Filing 26

ORDER granting 18 Motion for Judgment on the Pleadings and denying 20 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 1/29/2018. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DNISION
No. 5:16-CV-841-BO
CHONITA JONES,
Plaintiff,
v.
, NANCY A. BERRYHILL,
Acting Commissioner ofSocial 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 12, 2018, at Edenton, North
Carolina. For the reasons discussed below, the decision of the Commissioner is reversed.
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 applied for DIB on
September 11, 2014, alleging disability since September 8, 2014. After initial denials, a video
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.

Plaintiff then timely sought review of the

Commissioner's decision in this Court.
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
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regarding disability can be made at any step of the process the inquiry ceases. See 20 C.F.R. §§
404.1520(a)(4), 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. At step two, the ALJ
found plaintiffs anxiety disorder to be a severe impairment but found at step three that such

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impairment did not meet or equal one of the impairments in the Listing of Impairments (Listing).
20 C.F.R. Pt. 404, Subpt. P, App. 1. At step four, the ALJ concluded that plaintiff had the
residual functional capacity (RFC) to perform a full range of work at all exertional levels but that
nonexertional limitations to simple, routine, repetitive tasks and only brief and superficial
interaction with the public or co-workers were appropriate.

The ALJ found that plaintiff was

unable to perform her past relevant work as a personnel clerk or laundry operator, but found at
step five, that, considering plaintiffs age, education, work experience, and RFC, jobs existed in
significant numbers in the national economy which plaintiff could perform. These jobs included
street cleaner, sandwich board carrier, and agricultural produce sorter. Thus, the ALJ determined
that plaintiff was not disabled as of the date of the decision.
Prior to the date of the ALJ' s decision, plaintiff was assigned a permanent disability
rating of 100% by the Department of Veterans Affairs (VA) effective November 13, 2014. Tr.
22; 154. "[I]n making a disability determination, the SSA [Social Security Administration] must
give substantial weight to a VA disability rating." Bird v. Comm 'r ofSoc. Sec. Admin., 699 F.3d
337, 343 (4th Cir. 2012) (emphasis added). An ALJ may afford less weight to a VA disability
determination, but only "when the record before the ALJ clearly demonstrates that such
deviation is appropriate." Id. Here, the ALJ gave little weight to the VA's disability rating,
noting that the process used by the VA is fundamentally different from the Social Security
Administration's process and that the VA does not perform a function by function analysis. Tr.
22. In no way, then, did the ALJ explain how the record in this case would support a deviation
from the VA's determination, and thus the failure to give the VA rating substantial weight is not
supported by substantial evidence and was in error. See also Pridgen v. Colvin, No. 4:15-CV-

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00095-F, 2016 WL 4047058, at *4 (E.D.N.C. June 30, 2016), report and recommendation
adopted, No. 4:15-CV-00095-F, 2016 WL 4046763 (E.D.N.C. July 27, 2016) (noting that merely

citing the difference in VA and SSA standards does not satisfy Bird).
Plaintiffs VA rating of 100% disabled was based on a rating of 50% disabled due to
generalized anxiety disorder with agoraphobia, panic disorder, and insomnia, Tr. 153, and the
ALJ found plaintiffs anxiety disorder to be a severe impairment. Plaintiff testified at the hearing
before the ALJ that she been treated for anxiety since 2009 following her involvement in an
improvised explosive device incident while on active duty in Iraq, that she continues to take
medications to treat her anxiety, that she stays in her room most of the day, that she sleeps three
to four hours per night, that she can focus on tasks for approximately ten minutes, and that she
experiences panic attacks approximately two to three times per week. Tr. 44-50. Plaintiffs
panic attacks last approximately five minutes, Tr. 550, and during an attack plaintiffs chest
hurts, her left arm goes numb, and she feels like she cannot breathe. Tr. 50; The VA treatment
records corroborate plaintiffs hearing testimony and reveal that during the relevant time period
plaintiff suffered from poor sleep, difficulty concentrating, and panic attacks occurring three to
four times per week. See, e.g. Tr. 350; 675; 2000.
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

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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).
An RFC should reflect the most that a claimant can do despite the claimant's limitations,

20 C.F.R. § 404.1545(a), and should reflect the claimant's ability to perform sustained workrelated 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). At the
hearing, the vocational expert (VE) testified that a hypothetical individual with the same
vocational background as plaintiff who missed more than one day per month of work would be
precluded from working at a substantially gainful activity. Tr. 61. The VE additionally testified
that such an individual would be precluded from work if she was off task more than five-percent,
or roughly twenty-four minutes, of an eight-hour work day. Tr. 60. After affording the proper
weight to the VA's disability rating, substantial evidence does not support the ALJ's conclusion
that a limitation to simple, routine, repetitive tasks and only occasional contact with the public
and co-workers sufficiently accounts for plaintiffs limitations due to anxiety and panic attacks.
Rather, substantial evidence in the. record supports a finding that plaintiff could not perform
sustained work activities on a regular and continuing basis.
Additionally, the ALJ in this case characterized plaintiffs panic attacks as "persistent"
and her concentration as "diminished," Tr. 21-22, but when considering Listing 12.06 the ALJ
found plaintiffs restrictions in concentration, persistence, and pace as well as social functioning
to be only moderate as opposed to marked or severe. This conclusion is not supported by

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substantial evidence in the 'record. See also 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00.F.2
(defining moderate limitation as on which seriously limits a claimant's ability to function in an
area independently, appropriately, and effectively).

A finding that plaintiff suffered from

marked restrictions in social functioning and concentration would have resulted in a finding that
plaintiff satisfied the criteria then in place under Listing 12.06(3), which further supports that an
award of benefits is appropriate in this instance. 1
CONCLUSION
Accordingly, plaintiffs motion for judgment on the pleadings [DE 18] is GRANTED and
defendant's motion for judgment on the pleadings [DE 20] is DENIED. The decision of the
Commissioner is REVERSED and this matter is remanded for an award of benefits.

SO ORDERED, this

_at day of January, 2018.

~w./?aJt
ERRENCEWToYLE
:r UNITED STATES DISTRICT JUDGE

1

As the Commissioner correctly noted at the hearing, the issue of whether plaintiff satisfies the
Listing criteria under 12.06 was not raised in her motion for judgment on the pleadings, but it
was raised in plaintiffs response to the Commissioner's motion for judgment on the pleadings.
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