Morrison v. Astrue

Filing 30

ORDER granting Plaintiff's 23 Motion for Judgment on the Pleadings, and denying Defendant's 25 Motion for Judgment on the Pleadings. Order further remands to the Acting Commissioner for further consideration. Signed by US District Judge Terrence W. Boyle on 6/19/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:12-CV-87-BO
MICHAEL J. MORRISON,
Plaintiff,
v.
CAROLYN W. COLVIN,
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 April25, 2013, at Elizabeth City, North
Carolina. For the reasons discussed below, this matter is remanded to the Acting Commissioner for
further consideration.
BACKGROUND
Plaintiffbrought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final
decision ofthe Commissioner denying his claim for disability and disability insurance benefits (DIB)
and supplemental security income (SSI) pursuant to Titles II and XVI of the Social Security Act.
Plaintiff filed for DIB and protectively filed for SSI on April 14, 2008, alleging disability
since June 30, 2006, in both applications.
reconsideration.

Plaintiffs claims were denied initially and on

After conducting a video-hearing and considering the claim de novo, an

Administrative Law Judge (ALJ) found that plaintiff was not disabled in a decision issued on August
18, 2010. The decision of the ALJ became the final decision ofthe 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, 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. 42 U.S.C. § 405(g); see Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence consists of more than a mere scintilla of
evidence, but may be less than a preponderance of evidence. Richardson v. Perales, 402 U.S. 389,
401 (1971 ). The Court must not substitute its judgment for that of the Commissioner if the
Commissioner's decision is supported by substantial evidence. Hays, 907 F.2d at 1456.

In evaluating whether a claimant is disabled, an ALJ uses a multi-step process. First, a
claimant must not be able to work in a substantial gainful activity. 20 C.F .R. § 404.1520. Second,
a claimant must have a severe impairment that significantly limits his or her physical or mental
ability to do basic work activities. /d. Third, to be found disabled, without considering a claimant's
age, education, and work experience, a claimant's impairment must be of sufficient duration and
must either meet or equal an impairment listed by the regulations. /d. Fourth, in the alternative, a
claimant may be disabled if his or her impairment prevents the claimant from doing past relevant
work and, fifth, if the impairment prevents the claimant from doing other work. /d. 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).
After finding that plaintiff met the insured status requirements through June 30, 2011, and
that he had not engaged in any substantial gainful activity since his alleged onset date at step one,
the ALJ determined that plaintiff had the following severe impairments: chronic low back pain,

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multi-level degenerative disc disease of the lumbar spine with spinal stenosis, gout, and degenerative
joint disease of both knees. The ALJ went on to find that plaintiff did not have an impairment or
combination of impairments that met or equaled a listing at step three, and found that plaintiff had
a residual functional capacity (RFC) to perform medium work with some exertional and nonexertionallimitations. At step four, the ALJ found that plaintiff could perform his past relevant work
as a production machine tender or bus driver. Accordingly, the ALJ found that plaintiff was not
disabled.
An RFC finding should reflect a 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). The ALI's RFC
determination in this matter is not supported by substantial evidence. In discrediting plaintiffs
subjective testimony regarding his pain and its limits on his physical capabilities, the ALJ
inaccurately restated the medical findings in the record. For example, though the ALJ noted that
there was no evidence ofjoint space narrowing, effusion, or bone loss in plaintiffs knees, the record
demonstrates that x-rays of plaintiffs knees revealed "medial compartment joint space narrowing."
Tr. 228. Further, the ALJ failed to discuss a 2009 finding that plaintiff"has marked degenerative
change in the patellofemoral joint and also has bone one bone contact in the medial compartment
with large periarticular osteophytes." Tr. 330. In regard to plaintiffs back, the ALJ again
inaccurately restated the medical record when he noted that plaintiff had only mild stenosis and no
evidence ofnerve root impingement; an MRI in March 2010 revealed moderate right neuroforaminal
stenosis from L3- Sl as well as impingement on the L3, L4, and L5 nerve roots. Tr. 327.
In light of the foregoing, the ALJ' s conclusion that there is a lack of diagnostic data to
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corroborate plaintiffs allegations is not supported by substantial evidence. Additionally, the
correctly stated medical records discussed above support the opinion of Dr. Gebrail, a consultative
examiner, who opined that "it would be difficult for [plaintiff] to obtain a job that require [sic]
significant physical activities such as lifting, bending, crouching, pulling, and excessive walking or
climbing stairs .... " Tr. 217. The ALJ failed, however, to address this opinion in his decision. See
SSR 96-8p.
Substantial evidence also does not support the ALJ's conclusion that, because plaintiff
testified that he coaches adult softball (by sitting on the sidelines and giving verbal instructions) and
helps his mother with some light household chores, he is capable of performing medium work.
Medium work requires the ability to lift fifty pounds at a time and frequently carry up to twenty-five
pounds. 20 C.P.R. § 404.1567. Even if the ALJ correctly found plaintiffs statements concerning
the frequency and intensity of his pain not entirely credible or somewhat inconsistent with his daily
activities, the medical evidence in the record does not support a finding that plaintiff, with his
documented history of back and knee problems, could lift fifty pounds occasionally, twenty-five
pounds frequently, and do a great deal of walking or standing for eight hours a day, five days a week.
Because the ALJ's RFC finding that plaintiff could perform medium work with some
limitations is not supported by substantial evidence, a remand of this matter is appropriate so that
the medical record supporting plaintiffs allegations of limitations may be fully considered and an
appropriate RFC applied. Morever, because it appears that a finding of disabled would have been
directed by the medical-vocational guidelines (grids) if plaintiffhad been limited to light or sedentary
work, see 20 C.P.R. Part 404, Subpt. P, App. II, on remand the ALJ must specifically consider
whether plaintiff should more appropriately be limited to less than medium work with some

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limitations.
CONCLUSION
Accordingly, for the reasons discussed above, plaintiffs motion for judgment on the
pleadings (DE 23] is GRANTED and defendant's motion for judgment on the pleadings [DE 25]
is DENIED. This matter is hereby REMANDED to the Acting Commissioner for further
consideration consistent with the foregoing.

SO ORDERED, this

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day of June, 2013.

RRENCE W. BOYLE
UNITED STATES DISTRICT

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