French v. Astrue
ORDER granting 24 Motion for Judgment on the Pleadings; denying 27 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 2/5/2013. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 24 & 27]. The underlying dispute involves the plaintiffs challenge to the
defendant's decision denying her benefits under the Social Security Act. A hearing on this matter
was held in Edenton, North Carolina on December 18,2012. For the reasons discussed below,
plaintiffs motion is GRANTED, defendant's motion is DENIED, and, accordingly, the
judgment of the Administrative Law Judge is REVERSED.
Plaintiff filed an application for disability and disability insurance benefits on August 27,
2008, alleging an onset date of December 31, 2007. Her claim was denied initially and upon
reconsideration. On May 19,2010, the claimant appeared before an Administrative Law Judge
(ALJ). Following the administrative hearing, the ALJ issued a decision finding that the plaintiff
was not disabled at step five of the appropriate five-step sequential disability evaluation process.
On July 1, 2011, the Appeals Council denied the plaintiffs request for review, rendering the
ALJ's decision the final decision of the Commissioner. Plaintiff Amy French now seeks review
of the Commissioner's final decision pursuant to 42 U.S.C § 405(g).
Plaintiff allegedly suffers from an organic mental disorder resulting from traumatic
injuries inflicted during a car crash in May, 2005. Upon discharge from the hospital following
the accident, the plaintiff was diagnosed with severe traumatic encephalopathy, left
frontotemporal parietal contusion and facial fractures, post-traumatic amnesia, history of
pulmonary embolism, oral dysphagia, multiple facial lacerations, anemia, anxiety, and anosmia.
[Tr. 277]. The injuries were extensive. Following the accident, the plaintiff reported being
treated in eight different hospitals and suffering from debilitating migraine headaches and
It became clear that the claimant was unable to manage her own finances and her uncle
was appointed as her conservator. He now manages her finances and provides her with $600.00
in cash per month to cover living expenses. Although she once owned and managed a business
with revenue of $2M annually, she often is unable to properly budget this allowance.
Additionally, the plaintiff has testified that since the accident she tires very easily and often takes
naps in the middle of the day. At times she has difficult finishing tasks because she gets too tired
The plaintiffs current condition is in stark contrast to her capabilities demonstrated prior
to the accident. The multilingual plaintiff holds two Master's degrees and has past work as the
CEO of a translation company, a writer, a translator, a project manager, and a marketing director.
[Tr. 49-50]. The plaintiff made one unsuccessful attempt to return to work following the
accident. However, the plaintiff was unable to remember how to complete even simple tasks and
had to be reminded how to use the cash registers on a daily basis. [Tr. 4 7]. The job and its
associated challenges caused her significant stress, which would trigger migraine headaches.
After being treated for migraines and seizures in 2007 and 2008, Ms. French underwent a
neurobehavioral exam with Dr. Antonio Puente, Ph.D. Ms. French reported during that exam that
she was unemployed and living off the proceeds of the sale of her translation company. During
that exam, Dr. Puente noted that she had a slow response time in her communication. [Tr. 1060].
In July, Ms. French underwent neuropsychological testing with Dr. Puente. Dr. Puente noted that
the claimant had difficult completing the various tests, had slow responses, required a great deal
of support, and was late for the testing sessions after being given a break. After extensive testing,
Dr. Puente reported that she was "somewhat slow" with a significant executive dysfunction
problem. [Tr. 1057]. Dr. Puente observed the following: Ms. French's ability to focus was
somewhat challenged, her memory capability was in the first percentile, and her overall
intelligence was in the lower tenth percentile range. Further, Dr. Puente reported that the plaintiff
had very little understanding of her situation and that she easily meet the listing requirements of
12.02(A) and (B).
In December, 2008, Ms. French sought migraine treatment from Dr. Wiese. Although the
claimant has been suffering from migraines since she was 13, Dr. Wiese reported that she had
been taking her Topamax incorrectly, and it took her some time to process his instructions. [Tr.
In August, 2009, Ms. French underwent additional neuropsychological testing with Dr.
Puente. After extensive testing, Dr. Puente reported," ... at the present time she appears to be
experiencing moderate to severe neuropsychological symptoms with even more significant
impairment in activities of daily living ... This is a permanent condition that on it own appears
unlikely to change. The likelihood of any type of employment is low." [Tr. 1235].
Ms. French saw Dr. Puente again on March 31, 2010. At that point, Dr. Puente noted:
I want to make sure that the attorney involved in the social security case
understands how permanently and totally disabled she is due to brain injury ....
Encouraged the Social Security Disability at ALJ[sic] ... to understand that she
meets 12.02 criteria at the highest level and meets several ofthe part B listing,
including pace and persistence and the lack of structure unless it is externally
imposed. Prognosis in this case is very poor in terms of returning to gainful
employment. [Tr. 1237-1238].
In its memo in support of its motion for judgment on the pleadings the defendant focuses on one
line ofDr. Puente's report from this appointment: "This is generally considered to be within the
margin of error and does not suggest significant impairment or deterioration of cognitive
function." [Tr. 1233]. Reading Dr. Puente's report as a whole, in context, and noting Dr.
Puente's grave concern for the claimant throughout the record, this statement simply indicates
that Ms. French's cognitive abilities had not declined since the last time she underwent
Ms. French's stepfather, Charles Williams, submitted a third party function reported that
set forth numerous ways in which the claimant was unable to function in daily life. She had
difficulty grocery shopping, she had little contact with other people, she seemed withdrawn, she
spent most of her time at home watching television, and she was completely unable to handle her
finances without the help of her uncle. [Tr. 213-237].
Mr. Williams was responsible for securing Ms. French her brief employment at J.C.
Penney's. On May 10,2010, Mr. Williams submitted a sworn statement detailing all ofthe
difficulties Ms. French had while attempting to work at the department store. Among those
difficulties were her inability to remain on her feet for an entire work shift, and that she had to be
re-taught daily how to use the cash registers and process credit card transactions.
Ms. French's father, Jeffrey Steingold, also concerned about the claimant's condition,
wrote letters to Dr. Puente that detailed the claimant's difficulties in daily functioning. Mr.
Steingold explained that his daughter was unable to remember current events, the names of her
doctors, or her phone number and address. He also stated that she was unable to translate
languages, as she had done before the accident, and that she frequently got lost. Mr. Steingold
also commented that she was unable to maintain a clean home or care for her pets. [Tr. 255-56].
In a later letter, Mr. Steingold recounted a time when Ms. French had gotten lost on her way to a
familiar restaurant and missed an important dinner with her children. [Tr. 248].
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.
The analysis requires the ALJ to consider the following five factors sequentially: (1) whether the
claimant is engaged in substantial gainful activity; (2) whether the claimant has a medical
impairment or a combination of impairments that are severe; (3) whether the claimant's medical
impairment meets or equals the requirements of a disability listed in the social security
regulations; (4) whether the claimant can perform other work. 20 C.F.R. § 404.1520; see
Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). 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. Chafer,
65 F.3d 1200, 1203 (4th Cir. 1995).
Here, the ALJ erred by concluding at step three that the claimant was not suffering from
an impairment meeting the requirements of an impairment listed in the social security
regulations. The listing considered by the ALJ is found at 12.02. Pursuant to that listing the
required showing to establish disability includes:
A. Demonstration of a loss of specific cognitive abilities or affective changes and
the medically documents persistence of at least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information),
intermediate, or long-term (inability to remember information that was known
sometime in the past); or
3. Perceptual or thinking disturbances (e.g. hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional lability (e.g. explosive temper outbursts, sudden crying, etc.) and
impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I. Q. points from premorbid
levels or overall impairment index clearly within the severely impaired range
on neuropsychological testing, ...
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
It is undisputed that the claimant has exhibited the behavioral patterns set forth in
paragraph A of the listing. However, the ALJ found that the claimant had not shown any of the
marked restrictions set forth in paragraph B. As noted by ALJ Haack, marked means a restriction
that is more than moderate, but less than extreme. [Tr. 23]. The ALJ found that the claimant was
mildly restricted in activities of daily living, experienced moderate difficulties with social
functioning, had moderate difficulties in maintaining concentration, persistence or pace, and had
only experienced one episode of decompensation of extended duration. However, substantial
evidence does not support these findings. Rather, the evidence supports a finding that the
claimant has met at least two of the three categories of marked restrictions listed in paragraph B.
First, although the plaintiff has been able to maintain an outwardly pleasant and hygienic
appearance, the evidence establishes that she has experienced other marked restrictions in her
activities of daily living. For example, her inability to manage her finances without the help of
her uncle is evidence of marked restrictions. The record reflects that although she was given
$600.00 per month to pay for living expenses she would run out of cash before the end of the
month. For a woman who was previously multilingual and managed her own company this is
evidence of a marked, if not severe, restriction in her ability to function. Finally, her inability to
navigate her way to a familiar location for an important event is especially troubling. ALJ Haack
did not consider how someone with such a limitation might be able to commute to work in an
unfamiliar location. Although Ms. French may be able to complete some activities of daily living
without event - putting on make-up -, it is clear that her overall ability to function is
significantly impaired. The substantial evidence supports a finding that the claimant experienced
marked, if not severe, restrictions in her activities of daily living.
Additionally, the claimant suffers from a marked restriction in her ability to maintain
concentration, persistence, and pace. This is most evidenced by her unsuccessful attempt to work
at J.C. Penney's. The plaintiff was unable to grasp simple tasks such as the operation of a cash
register or credit card machine. This difficulty is noted by Dr. Puente who stated that she had
difficulty completing many of the tests he administered and lost track of time causing her to
arrive late for her testing sessions. Dr. Puente's observations are corroborated by the claimant's
stepfather who noted that the claimant is unable to go shopping without a list because she will
wander the aisles without purpose. The ALJ points to several tests administered by Dr. Puente as
evidence that the claimant is not suffering from a marked restriction. However, read in the
context of Dr. Puente's notes and observations of the claimant those few tests do not support a
conclusion that the plaintiff does not have a marked restriction in her ability to concentrate and
Finally, the claimant suffers from a marked restriction in her ability to maintain social
functioning. The plaintiff has become increasingly isolated over time and has further withdrawn
from her social network. Notably, the claimant was unable to maintain a relationship with her
boyfriend. Although the ALJ noted that the plaintiff keeps in touch with many friends, the
remainder of the record establishes that Ms. French has significant difficulty maintaining social
ties. In fact, Dr. Puente noted that she is not able to grasp the full extent of her own situation;
such a lack of self-awareness is not conducive to the formation of personal relationships. The
plaintiffs increasingly strained relationship with her children is also evidence of this restriction.
The substantial evidence supports a finding that the plaintiff suffers from a marked restriction in
her ability to maintain social functioning.
Evaluating the record as a whole, the substantial evidence does not support the ALJ' s
finding that the claimant's mental impairments do not cause at least two of the marked
restrictions listed in 12.02(B). The evidence supports a finding that the claimant suffers from
marked restrictions in her activities of daily living, marked restrictions in her ability to maintain
social functioning, and marked restrictions in her ability to concentrate and persist.
Plaintiff met her burden at step three by showing that her condition met the listing found
at 12.02(A) and (B), and is therefore disabled. Because the ALJ did not correctly apply the
regulations, the decision was not supported by substantial evidence. Therefore, the ALJ' s
decision at step three is reversed.
For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is
GRANTED, and the decision of the Commissioner is REVERSED. 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 ofthe district court." Edwards v, Bowen, 672 F.Supp. 230, 236
(E.D.N.C. 1987). Accordingly, this case is REMANDED for an award ofbenefits.
This ~day of February, 2013.
ERRENCE W. BOYLE
UNITED STATES DISTRICT J
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