Newkirk v. Astrue
Filing
36
ORDER GRANTING 24 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 29 Defendant's Motion for Judgment on the Pleadings. The decision of the Administrative Law Judge is REVERSED, and this matter is REMANDED to the Commissioner for an award of benefits. Signed by US District Judge Terrence W. Boyle on 9/10/2013. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:12-CV-200-BO
LARRY D. NEWKIRK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
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 August 15, 2013, at Raleigh, North
Carolina. For the reasons discussed below, the decision of the Commissioner is reversed.
BACKGROUND
Plaintiffbroughtthis 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. Plaintiff protectively filed for DIB on April6, 2009,
alleging disability since September 1, 2008. Plaintiffs claims were denied initially and on
reconsideration. After conducting a hearing and considering the claim de novo, the ALJ found that
plaintiff was not disabled in a decision issued on June 15, 2011. 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 ofthe 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 and that he had not engaged
in any substantial gainful activity since his alleged onset date at step one, the ALJ determined that
plaintiffs degenerative disc disease was a severe impairment. 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 limited
to simple, routine, repetitive tasks. At step four, the ALJ found that plaintiff could not perform his
2
past relevant work, but found at step five that, considering plaintiffs age, education, work
experience, and RFC, jobs existed in significant numbers in the national economy that plaintiff could
perform. Accordingly, the ALJ found that plaintiff was not disabled.
Substantial evidence does not support the ALI's determination that plaintiff did not satisfy
his burden to show that he met a listing at step three. A claimant may be found disabled on medical
grounds alone when he has a "condition [that] meets the specific criteria in the Listing of
Impairments (the Listing) or is the equivalent of a listed impairment." SSR 83-19. In order to show
that he meets a listing, a claimant must show that he meets all of the specified medical criteria of that
Listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Listing 1.04 deals with disorders of the spine,
including degenerative disc disease, resulting in compromise of a nerve root or the spinal cord.
Listing 1.04A requires in addition to the above:
evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion ofthe spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and supine).
20 C.F.R. Part 404, Subpt. P, Appendix I§ 1.04.
While the ALJ relied on his statement that plaintiffs MRI's failed to reveal any significant
herniations or nerve root impingement in finding that plaintiff did not meet the Listing, significant
nerve root impingement is not required. In point of fact, the record reveals that plaintiff was
diagnosed with degenerative disc disease with evidence of nerve root compression as confirmed by
MRI. Tr. 235, 265. Moreover, the ALJ declined to consider the treatment notes of plaintiffs
treating physician's assistant because as physician's assistant is not an acceptable medical source
pursuant to SSR 06-03p. However, as this Court has held,
3
the Social Security Commission has recognized, as evidenced by SSR 06-03p, that health
care is no longer only delivered by licensed physicians. Those medical professionals who
support physicians, including physician assistants, nurse practitioners, and licensed clinical
social workers, provide much of the care currently administered to patients. SSR 06-03p
dictates that ALJs must at least consider the opinions of these non-acceptable medical
sources, especially when there is evidence in the record to suggest that a non-acceptable
medical source had a lengthy relationship with the claimant and can present relevant
evidence as to an opinion about the claimant's impairment or ability to work.
Foster v. Astrue, 826 F. Supp.2d 884, 886 (E.D.N.C. 2011).
Neuro-anatomic distribution of pain was present as plaintiff complained of pain radiating
down his right leg. Tr. 235. Plaintiffs range of motion in his back was limited, Tr. 242, 253, and
motor and sensory loss were evidenced by complaints of weakness, Tr. 221, and numbness
characterized as radiculopathy. Tr. 222, 241. A positive straight-leg-raise test is also in the record,
Tr. 251, and plaintiff has therefore satisfied all of the criteria to meet Listing 1.04A. The ALJ' s
decision that plaintiff did not satisfy the Listing criteria is not supported by substantial evidence.
Even assuming, however, that the ALJ had articulated a proper reason for finding that
plaintiff did not meet the lumbar Listing, the ALJ' s RFC of medium work was also not supported
by substantial evidence. In finding plaintiffs statement regarding the severity or effects of his pain
not credible, the ALJ relied on the findings in some of plaintiffs objective tests that revealed "mild"
nerve root impingement. Once an impairment that could reasonably be expected to cause pain is
shown by medically acceptable evidence, a claimant may demonstrate the intensity or severity of the
pain by subjective evidence. See e.g. Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). SSR
95-5p further recognizes that symptoms can suggest a greater level of impairment than can be shown
by objective medical evidence.
It was beyond the province of the ALJ to conclude that because some of plaintiffs MRI
4
findings were described as "mild" plaintiff's complaints of severe pain were not credible. See e.g.
Walker v. Astrue, 2:03-0078, 2008 WL 4722121 (M.D. Tenn. Oct. 21, 2008) ("It is reasonable to
infer that even a relatively "mild" compression of one's cervical nerves could reasonably be expected
to produce severe or disabling pain."). Notably, though the ALJ discredited much of plaintiff's
subjective testimony, he limited plaintiff to performing simple, routine, or repetitive tasks in light
of the pain plaintiff experienced. Once plaintiff's complaints are properly regarded as credible, even
if not entirely, plaintiff would be limited to performing no greater than sedentary work. 20 C.F.R.
§ 404.1567 (defining the exertional requirements for sedentary work). Due to plaintiff's age at the
time of the hearing, his education, and lack of transferable skills, had plaintiff been limited to
sedentary work a finding of disabled would have been directed by the Medical Vocational Guidelines
(Grids). 20 C.F.R. Part 404, Subpt. P, App. II.
Reversal for Award of Benefits
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). 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).
As plaintiff has demonstrated that he has met Listing 1.04A and alternatively that he
would properly be limited to sedentary work and thus that a finding of disabled would be
directed, a remand of this matter would serve no purpose. Accordingly, the decision of the
5
Commissioner is hereby REVERSED.
CONCLUSION
For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 24] is
GRANTED and defendant's motion for judgment on the pleadings [DE 29] is DENIED. The
decision of the ALJ is REVERSED and this matter is REMANDED to the Commissioner for an
award of benefits.
SO ORDERED, this
_1Q_ day of September, 2013.
T RRENCE W. BOYLE
UNITED STATES DISTRICT J
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?