Mitchell v. Colvin

Filing 31

ORDER GRANTING 25 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 27 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is reversed, and this matter is remanded for an award of benefits. Signed by US District Judge Terrence W. Boyle on 3/12/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-42-BO
GERALD MITCHELL,
Plaintiff,
v.

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on the parties' cross motions for judgment on the
pleadings [DE 25 & 27]. For the reasons detailed below, plaintiffs motion is GRANTED and
defendant's motion is DENIED. The decision of the Commissioner is REVERSED.

BACKGROUND
Plaintiff filed an application for a period of disability and disability insurance benefits on
July 1, 2010, alleging disability beginning on April 16, 2010. The applications were denied
initially and upon reconsideration. Mr. Mitchell appeared with counsel for a hearing before an
Administrative Law Judge ("ALJ") on September 19, 2011. On May 25, 2012, the ALJ issued a
decision denying the claims at step five of the sequential evaluation process. On January 10,
2013, the Appeals Council denied plaintiffs request for review thereby rendering the ALJ's
decision the final decision of the Commissioner. Mr. Mitchell then commenced the instant action
for judicial review pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY

Mr. Mitchell suffers from serious orthopedic problems in addition to a heart condition.
He has received regular treatment for low back pain and bilateral knee pain since December of
2008. [Tr. 322]. In February 2010, x-rays of his knees revealed widespread, advanced
degenerative narrowing with marked narrowing of the patellofemoral space with asteophyte
formation in both of his knees. [Tr. 283]. His doctor diagnosed him with severe degenerative
joint disease ("DJD") in both of his knees and he received regular steroid injections to help
address the pain. [Tr. 295]. In March of2010, he made several trips to the ER for severe left hip
pain [Tr. 278-81] and on March 23, 2010, an x-ray revealed marked hip joint space narrowing
with cysts in both sides ofthe hip joint. [Tr. 261]. These findings were characterized as advanced
arthritis. [Tr. 257-62]. On May 22, 2010, Mr. Mitchell underwent an MRI of his lower back due
to persistent and severe pain. The MRI revealed severe left foramina! stenosis upon the exiting
nerve root at L3-L4 and severe foramina! stenosis on the right root at L4-L5. [Tr. 362]. His
orthopaedist attributed his severe, constant back pain and intermittent leg pain to these
abnormalities. [Tr. 374-75].
At his hearing, Mr. Mitchell testified that despite treatment he still suffered from back
pain which ran down his legs. [Tr. 41]. He had trouble standing, walking, and getting up from a
sitting position. He took Percocet for back pain and Naproxen for his leg pain. [Tr. 41-42]. He
stated that his medication helped, but that he still felt pain. [Tr. 42]. He testified that he could
only walk for about 40-50 feet before he needed a break and that he regularly used a cane. [Tr.
43]. He said that he could stand for about 4-5 minutes before he needed to sit down and that he
could sit for 30-40 minutes before needing to stand up. [Tr. 44]. He could not lift over 5-10
pounds. [Tr. 44]. He sometimes had trouble sleeping because of his back pain and needed help

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putting his shoes on. [Tr. 45-46]. He stated that he did not do any house or yard work and that his
medication often made him sleepy and required that he lie down during the day. [Tr.

4~7].

He

also stated that his spinal injections only provided temporary relief before the pain would return.
[Tr. 49].
DISCUSSION

Pursuant to the Social Security Act, 42 U.S.C. § 405(g), this Court's review of the
Commissioner's decision is limited to determining whether the Commissioner's decision, as a
whole, is supported by substantial evidence and whether the Commissioner employed the correct
legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (citing Richardson v.
Pearles, 402 U.S. 389, 390 (1971)). '"[S]upported by substantial evidence' means 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' !d. (quoting
Pearles, 402 U.S. at 401). Regulations establish a five-step sequential evaluation process to be
followed when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520 and 416.920.
"The claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five." Rogers v. Barnhart, 216 Fed. App'x 345, 348 (4th Cit. 2007) (citing
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).
Plaintiff alleges that the decision of the ALJ is not supported by substantial evidence
because he improperly assessed the medical and testimonial evidence when determining
plaintiffs residual functional capacity ("RFC"). Plaintiff also alleges that the ALJ erred by not
considering plaintiffs DJD of the bilateral knees to constitute a severe impairment.
Plaintiff argues that he cannot walk for more than 40-50 feet at a time and therefore is
unable to ambulate effectively pursuant to the 1.00 listings. In order to be capable of effective
ambulation, an individual must be able to walk a block at a reasonable pace on rough or uneven

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surfaces. A block is 100 meters or 328 feet. 20 C.P.R. Pt. 404, Subpt. P, App'x I § l.OOB(2)(b).
Because he cannot ambulate effectively, plaintiff argues that he should have been disabled under
the framework of the orthopedic listings 1.00, 1.02, or 1.04. However, an impairment meets the
requirements of a listing when it satisfies all of the criteria of that listing, including any relevant
criteria in the introduction, and meets the duration requirement. 20 C.F .R. § 404.1525(c)(3 );
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Likewise, "[f]or a claimant to qualify for benefits

by showing that his . . . combination of impairments is 'equivalent' to a listed impairment, he
must present medical findings equal in severity to all the criteria for the one most similar listed
impairment." Sullivan, 493 U.S. at 531 (1990).
Plaintiff argues that he meets the listings based only on his testimony of ineffective
ambulation. However, plaintiff does not present evidence or even argue that he meets or equals
all of the criteria for any particular listing. The ALJ discussed the evidence in the record and
concluded that plaintiff does not meet or equal all of the criteria for any such listing. [Tr. 23-24].
Further, no evidence in the record supports plaintiffs statements that he is unable to ambulate
more than 40-50 feet. Although plaintiff was found on occasion to have an antalgic gait, no
physician ever stated that he could not walk. Further, at various points he demonstrated a normal,
steady gait with the ability to heel and toe stand without difficulty. [See e.g. Tr. 381]. The ALJ's
determination that plaintiff did not meet listing 1.00, 1.02, or 1.04 is supported by substantial
evidence.
After determining that the plaintiff did not meet the listings, the ALJ continued through
the sequential evaluation and determined that plaintiff was not disabled because his testimony
lacked credibility. [Tr. 25]. Plaintiff alleges that this is error. The regulations provide a two-step
analysis for evaluating a person's subjective complaints of pain and other symptoms. 20 C.P.R.§

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404.1529; Craig v. Chater, 76 F.3d 585, 591-96 (4th Cir. 1996). First, the adjudicator must
determine whether there is objective medical evidence showing the existence of a medical
impairment that could be reasonably expected to produce the pain or other alleged symptoms. 20
C.F.R. § 404.1529(b). However, an ALJ cannot require subjective evidence of pain in order for
an individual's statements regarding their pain to be considered credible. Hyatt v. Sullivan, 899
F.2d 329, 332-33 (4th Cir. 1990). Second, the adjudicator evaluates the intensity and persistence
of the symptoms to determine how they limit the capacity for work. 20 C.F.C. § 404.1529(c).
Here, plaintiff has produced evidence of severe DJD in both knees, severe foramina!
stenosis in his lumbar spine at L3-L4 and L4-L5, and marked joint space narrowing in his left
hip. His doctors have specifically attributed the severe pain plaintiff experienced to these
abnormalities. [Tr. 368-70; 374-75; 378]. In the face ofthis evidence, the ALJ was not able to
dictate the intensity of plaintiffs pain to the plaintiff.
Here, the ALJ found that plaintiff did provide evidence of medically-determinable
impairments that could reasonably be expected to cause plaintiffs alleged symptoms. [Tr. 25].
This satisfied the first step of the credibility test, so the ALJ moved on to evaluate the intensity,
persistence, and limiting effects of the alleged symptoms by considering several regulatory
factors. See C.F.R. 404.1529(c). However, the reasons the ALJ relied on for finding that the
evidence did not support disabling pain are not supported by the record.
The ALJ concluded that plaintiff did not regularly report increased pain with physical
activity or that his pain was significantly interfering with his daily living activities. [TR. 26].
However, the evidence in the record shows otherwise. Plaintiff reported difficulty walking and
standing secondary to his low back pain to Dr. Nasrallah in May 2010 and he also reported
difficulty walking and standing secondary to pain to his orthopedist. [Tr. 377-78]. He reiterated

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these concerns to his orthopedist in July of 2010. In the same month, his doctor noted that he
walked with an antalgic gait with a cane. [Tr. 363-65]. In August of 2010, he reported that his
pain interfered a lot with his daily activities, sleep, and family function. [Tr. 395]. That plaintiff
did not bring up this pain at every doctor's visit is not important because his doctors would have
been familiar with it.
The ALJ also concluded that plaintiffs pain must not be severe since he sometimes
denied radicular pain and his clinical findings were relatively benign. [Tr. 26-27]. Although
plaintiffs leg pain was intermittent, the record shows that his back pain was constant. [See e.g.
Tr. 263-65; 344; 347--48; 363-65; 368-70; 371; 374-75; 378; 395; 397-98; 450-51; 452-54;
691]. His clinical examinations reveal multiple instances of reduced range of motion in his spine,
tenderness to palpitation of his spine, and inability to walk without an antalgic gait and a cane.
[Tr. 363-65; 378; 395-96; 399; 450-51; 691]. These findings persisted despite the treatment
plaintiff was receiving.
The ALJ also found plaintiffs treatment for back pain to be generally successful. [Tr.
27]. However, the record shows that despite the treatment, plaintiffs pain and clinical
abnormalities persisted. [Tr. 272-73; 295; 344; 378; 374-75; 368-70; 395; 397-99]. The record
is consistent with his hearing testimony. [Tr. 49]. Temporary improvement in symptoms does not
make an individual not disabled. The question is not whether plaintiff could obtain and perform a
job during a period of improvement, but rather whether plaintiff could hold a job for any
significant length of time. Singletary v. Bowen, 798 F.2d 818, 822 (5th Cir. 1986). The record
shows that despite the numerous treatments plaintiff received, his pain always returned. [Tr.
691].

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The ALJ also did not find plaintiffs severe bilateral knee DJD to be a severe impairment.
An impairment is not severe "only if it is a slight abnormality which has such a minimal effect
on the individual that it would not be expected to interfere with the individual's ability to work,
irrespective of age, education, or work experience." Evans v. Heckler, 734 F.2d 1012, 1014 (4th
Cir. 1984) (quotation omitted). The Fourth Circuit has noted that this severity standard is a slight
one. Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 474 n.l (4th Cir. 1999). Here, the
ALJ found the DJD to be non-severe because Mr. Mitchell did not receive any treatment for his
knees after his alleged onset date. [Tr. 22]. Plaintiff objects that he continued to use a cane and
received injections in his knees after his alleged onset date. [Tr. 404, 687, 686, 677]. The ALJ
erred by not finding that plaintiffs severe DJD of both knees was not a severe impairment.
The ALJ' s finding is not supported by substantial evidence in the record as discussed
above. The record evidence makes it clear that plaintiff has severe DJD in both knees, hip joint
pain, severe stenosis at L3-L4 and L4-L5, severe constant back pain and intermittent leg pain. He
takes Percocet and Naproxen, still has pain, cannot walk more than 40-50 feet and uses a cane.
This evidence establishes that plaintiff is disabled and therefore the Court reverses the final
decision of the Commissioner and remands to the Agency for an award of benefits consistent
with this order.

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CONCLUSION

For the reasons outlined above, defendant's motion for judgment on the pleadings is
DENIED and plaintiffs motion is GRANTED. The decision of the Commissioner is
REVERSED. The matter is REMANDED to the Agency for an award of benefits consistent with
this order. The clerk is directed to close the file.

SO ORDERED.

This, the ~ay of March, 2014.

T RRENCE W. BOYLE
UNITED STATES DISTR

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