McKoy v. Astrue

Filing 34

ORDER GRANTING 28 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 31 Defendant's Motion to Remand. The decision of the Administrative Law Judge is hereby reversed. Signed by US District Judge Terrence W. Boyle on 10/8/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:12-CV-304-BO
STANLEY j MCKOY,
Plaintiff,

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V,

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

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This cause comes before the Court on plaintiffs motion for judgment on the pleadings and
defendant's motion to remand for further proceedings pursuant to sentence four of 42 U.S.C. §
405(g). Plaintiff opposes remand, contending that he meets a disability listing and that remand
would serve no purpose. 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 his claim for disability and disability insurance benefits (DIB)
and Social Security Income (SSI) pursuant to Titles II and XVI of the Social Security Act. Plaintiff
protectively filed for DIB and SSI on July 27, 2009, alleging disability since March 1, 2008.
Plaintiff's claims were denied initially and on reconsideration. After conducting a hearing and
considering the claim de novo, an Administrative Law Judge (ALJ) found that plaintiff was not
disabled in a decision dated August 24, 2012. The decision of the ALJ became the final decision of
the Commissioner when the Appeals Council denied plaintiff's 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 ofthe 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
plaintiff had the following severe impairments: hypertension, congestive heart failure and severe
aortic regurgitation with status post aortic valve replacement, HIV, tuberculosis, adjustment disorder

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with mixed depression and anxiety, and borderline intellectual functioning. 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 unskilled
light work with exertional and non-exertionallimitations. At step four, the ALJ found that plaintiff
could not perform his past relevant work, but found 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.
In seeking a remand of this action, the Commissioner contends that the ALl's failure to
explicitly discuss listings 14.08 and 12.05 warrant remand, but not reversal. However, because the
record supports that plaintiff has clearly satisfied the criteria for listing 14.08, HIV infection, remand
is unnecessary.
Listing 14.08 can be demonstrated as being met where a claimant has (1) HIV infection and
(2) pulmonary tuberculosis resistant to treatment. Listing 14.08(A)(l). Plaintiffhas HIV. Tr. 561;
372. Plaintiffs treating physician has classified his pulmonary tuberculosis as resistant to treatment,
in addition to noting that plaintiff had multiple or recurrent bacterial infections requiring
hospitalization or intravenous antibiotic treatment three or more times in one year. Tr. 1040-1;
Listing 14.08(a)(4); see also Tr. 380 (pulmonary tuberculosis resistant to lower MIC ofiNH and
ethionamide); Tr. 3 56 (presence of chronic pneumocystis pneumonia or TB pneumonia as opposed
to resolving pneumonia); Tr. 1027 (unspecified pulmonary tuberculosis as symptom of AIDS/HIV
disease); Tr. 103 3 (presence of pulmonary tuberculosis). Contrary to the Commissioner's assertion,
Listing 14.08(A) does not, on its face, require a diagnosis of pulmonary tuberculosis that is resistant
to all treatment, or evidence of pulmonary tuberculosis resistant to treatment and evidence of
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ongoing shortness of breath, wheezing, or rasping. Plaintiff has demonstrated that he meets that
plain requirements ofListing 14.08(A)(l) and is therefore disabled.
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 14.08, a remand of this matter
would serve no purpose. Accordingly, the decision of the Commissioner is hereby REVERSED.
CONCLUSION
Plaintiffs motion for judgment on the pleadings [DE 28] is GRANTED and defendant's
motion for remand under sentence four [DE 31] is DENIED. The decision ofthe ALJ is hereby
REVERSED.

SO ORDERED, this

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day of October, 2013.

T RRENCE W. BOYLE
UNITED STATES DISTRICT

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