Henry v. Astrue

Filing 31

ORDER GRANTING 21 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 24 Defendant's Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner for further proceedings consistent with this decision. Signed by US District Judge Terrence W. Boyle on 11/6/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:12-CV-320-BO
BETTY R. HENRY,

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Plaintiff,

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v.

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER

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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 21 & 24]. A hearing on this matter was held in Raleigh, North Carolina on
October 31, 2013 at 11:00 a.m. For the reasons discussed below, this matter is REMANDED for
further consideration by the Commissioner.

BACKGROUND
On January 22, 2009, plaintiff filed an application for a period of disability and disability
insurance benefits under Title II of the Social Security Act alleging an onset date of January 12,
2009. The claimant's application was denied initially and upon reconsideration. An
Administrative Law Judge ("ALJ") held a hearing on April 13, 2011, at which plaintiff, her nonattorney representative, and an impartial vocational expert appeared. On May 13, 2011 the ALJ
issued his opinion that the plaintiff was not disabled within the meaning of the Act from January
12, 2009. On September 10, 2012 the Appeals Council denied the claimant's request for review,
rendering the ALJ' s decision the final decision of the Commissioner. The plaintiff now seeks
judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY

Plaintiff was forty-six years old at the alleged onset of disability. She allegedly suffers
from pulmonary embolism, diabetes mellitus, chronic obstructive pulmonary disease, obesity, a
history of depression, and hypertension. Plaintiffs medical evidence in the record goes back to
2003 when she was hospitalized overnight for overnight psychiatric observation. (Tr. 283). In
October 2004, plaintiff was hospitalized with a pulmonary embolus and was placed on lifetime
blood thinners, diabetes, and anti-hypertensive medicines. In November 2004, she had a
recurrent massive right-sided pulmonary embolus.
In 2005, after complaining of shortness of breath and chest pain, plaintiff was diagnosed
with a left-side pulmonary embolus and was resumed on life-long blood thinners, diabetes and
hypertension medications. (Tr. 363, 385). Plaintiff continued to follow up with the
medical/surgical clinic at New Hanover from 2006 until the time of the ALJ hearing. She never
seemed to gain control over her diabetes or hypertension. Plaintiff has reported being unable to
afford her medication and poor dietary and medicine compliance. (Tr. 329, 332).
On January 12, 2009, she was again hospitalized, this time for increased leg swelling,
weight gain, and atypical chest pain. (Tr. 332). On February 1, 2011, she reported flank pain,
blood in urine and kidney failure of one year duration (Tr. 619).
DISCUSSION

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.

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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.
20 C.P.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis
requires the ALJ to consider the following enumerated factors sequentially. At step one, if the
claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the
claim is denied if the claimant does not have a severe impairment or combination of impairments
significantly limiting him or her from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing of Impairments. See 20 C.P.R. Part
404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is
equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's
impairment does not meet or equal a listed impairment then, at step four, the claimant's residual
functional capacity ("RFC") is assessed to determine whether plaintiff can perform his past work
despite his impairments. If the claimant cannot perform past relevant work, the analysis moves
on to step five: establishing whether the claimant, based on his age, work experience, and RFC
can perform other substantial gainful work. 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. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).
Plaintiff first contends that this Court should remand this matter to the Commissioner
pursuant to Sentence 6 of 42 U.S.C. 405(g) because there is newly discovered evidence. This
Court disagrees. The Fourth Circuit has held that a court may remand a Social Security Case to
the Secretary on the basis of newly discovered evidence if four prerequisites are met: (1) the

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evidence must be relevant to the determination of disability at the time the application was first
filed and not merely be cumulative, (2) it must be material to the extent that the Secretary's
decision might reasonably have been different had the new evidence been before her, (3) there
must be good cause for the claimant's failure to submit the evidence when the claim was before
the Secretary, and (4) the claimant must present to the remanding court at least a general
showing of the nature of the new evidence. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir.
1985). Here, however, plaintiff has not demonstrated that she has good cause for failure to
submit the evidence at an earlier date. Defendant's argument that plaintiff asked for additional
time to supplement the record and was granted that time, and the fact that plaintiff could have
submitted the additional evidence all the way up until the Appeals Council denied review is well
received. The fact that plaintiffs initial representative was not an attorney is of no consequence
as to the issue of good cause. The representative asked for and was granted a week to supplement
the record before the ALJ. (Tr. 26). Further, plaintiff was represented by counsel when she
requested the Appeals Council to review the ALI's decision. (Tr. 127).
Plaintiff next contends that the ALJ erred by failing to make full and explicit findings.
Plaintiffs argument is convincing regarding the ALJ' s failure to discuss her nephrotic syndrome
at all. Although most of the evidence regarding plaintiffs nephrotic syndrome was not before the
ALJ, there was evidence of plaintiffs nephrotic range proteinuria. (Tr. 288, 378, 380-81, 619).
The effect of all of a claimant's impairments must be considered in combination. Cook v.
Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ did not mention nephrotic syndrome at

all in the decision. It is impossible to tell whether there was substantial evidence to support the
determination where there is not a full discussion of the impairments and symptoms. !d.
Accordingly, this Court remands this matter to the Commissioner for a new hearing under

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Sentence 4 to reexamine the evidence and to explain why nephrotic syndrome was not mentioned
by the ALJ.
CONCLUSION

For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is
GRANTED, defendant's motion is DENIED, and the matter is REMANDED to the
Commissioner for further proceedings consistent with this decision.

SO ORDERED.
This

p_

day ofNovember, 2013.

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