Gibson v. Colvin

Filing 28

ORDER GRANTING 20 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 23 Defendant's Motion for Judgment on the Pleadings. This matter is remanded to the Commissioner for further proceedings. Signed by US District Judge Terrence W. Boyle on 9/4/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-62-BO
DEBORA GIBSON,

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Plaintiff,

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v.

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ORDER

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CAROLYN COLVIN,
Acting Commissioner of Social Security,

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Defendant.

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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 20 & 23]. A hearing on this matter was held in Raleigh, North Carolina on
August 28, 2014 at 11:00 a.m. The Commissioner appeared at the hearing via video feed. For the
reasons discussed below, this matter is REMANDED for further consideration by the
Commissioner.

BACKGROUND
Plaintiff was 52 years old at the time of the alleged onset of her disability. She completed
four years of college and has worked as an internal auditor/utilization review coordinator. [Tr.
50, 200, 206]. On April 6, 2010, Ms. Gibson filed an application for disability insurance benefits
with an alleged onset date of July 3, 2009. Ms. Gibson complains of asthma, diastolic heart
failure, type II diabetes, obstructive sleep apnea, allergies, hypertension, irritable bowel
syndrome, bile acid diarrhea, GERD, and obesity. [Tr. 36, 80, 153, 205]. The application was
denied initially and upon reconsideration. Subsequently, at plaintiffs request, an Administrative
Law Judge ("ALJ") held a hearing on August 31, 2011 and then rendered an unfavorable

decision on November 10, 2011. 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).
DISCUSSION

When a social security claimant appeals a final decision of the Commissioner, the 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. Heckler,
739 F.2d 987, 989 (4th Cir. 1984)(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)). Ifthe Commissioner's decision is supported by such evidence, it must be affirmed. Smith

v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
In making a disability determination, the ALJ engages in a five-step evaluation process.
20 C.F.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.F.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

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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).
Here, plaintiff alleges that the ALJ erred by finding that plaintiff has an RFC of light.
Specifically plaintiff notes that the limitations found by four of her treating physicians support an
RFC that are not even consistent with sedentary work. The Court agrees that the ALJ' s RFC
determination is not supported by substantial evidence.
The ALJ erred in his RFC determination by rejecting the opinions from three different
treating physicians in the record and instead partially adopting finding from a non-examining
consultant as well as relying on his lay interpretation of the evidence to determine Ms. Gibson's
RFC. [Tr. 16-22]. The ALJ rejected the opinions of Drs. Sparks and Hioe as inconsistent with
Ms. Gibson's improvement but fails to point to any specific evidence that would show these
doctors did not consider her modest response to treatment. [Tr. 22]. As both doctors were longtime treating sources, it should have been clear to the ALJ that they were aware of Ms. Gibson's
response to treatment and his reasoning is insufficient to not afford their treating physician
opinions the weight they are presumptively due. See 20 C.F .R. § 404.1527(c)(2) (the
Commissioner must give controlling weight to a treating physician whose opinion is "wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record"); SSR 96-2p (a wellsupported opinion from a treating source that is not contradicted by substantial evidence must be
adopted). The ALJ also failed to identify substantial evidence that contradicts the opinions from

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these treating sources. A review of the record shows that their opinions are based on appropriate
clinical and diagnostic medical findings. [Tr. 1061-63, 1067-69]. Accordingly the opinions
should have been given controlling weight.
Similarly, the ALJ erred in his evaluation and assignment of weight to Dr. Schecodnic's
opinion. The ALJ discounted this opinion, because he believed it was based largely on Ms.
Gibson's subjective complaints. [Tr. 22]. However, the doctor cited to her notes for clinical and
diagnostic findings that supported her opinions. [Tr. 270, 1167-69, 1430-31, 1440]. Again, the
ALJ failed to point to substantial evidence that contradicts her opinion that the plaintiff cannot
even perform sedentary work. Accordingly, Dr. Schecodnic's opinion was also entitled to
controlling weight. 20 C.F.R. § 404.1527(c)(2); SSR 96-2p.
Finally, the ALJ's actual RFC finding is clearly not supported by substantial evidence. It
is unclear what evidence the ALJ relied on to determine the RFC as he only gave some weight to
the non-examining state agency source to opined Ms. Gibson could perform medium exertional
work and rejected all the other medical opinions of record. [Tr. 16-22]. The ALJ is not permitted
to make a medical determination without good reasons supported by specific medical and
nonmedical evidence. Wilson v. Heckler, 743, F.2d 218, 221 (4th Cir. 1984) (holding that the
ALJ erroneously "exercised an expertise he did not possess" by interpreting clinical findings);
see also SSR 96-8p ("The RFC assessment must include a narrative discussion describing how

the evidence supports each conclusion, citing specific medical facts . . . and nonmedical
evidence. . . . "). It appears to the Court that the ALJ here simply performed a Solomonian
splitting of the baby taking a non-examining physician's RFC of medium and examining
doctors' RFC of sedentary or less than sedentary, discounting all of them, and arriving at an RFC

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of light. While this may appear to be a just result, it is not rooted in substantial evidence in the
record and therefore fails.
The substantial evidence in the record clearly shows that plaintiffs RFC is at a level of
less than light. The Court remands to the Commissioner for a determination of whether
plaintiffs RFC is sedentary or less than sedentary, whether plaintiff has transferrable skills, and
whether, if plaintiff does not GRID out, jobs exist in the national economy in significant
numbers that plaintiff can perform.
As no step five findings have been made in this case with plaintiffs appropriate RFC
level, and as this Court cannot make findings and determinations in the first instance, remand is
the appropriate solution. Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011).
CONCLUSION

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

SO ORDERED.

This

!j_ day of~
RRENCE W. BOYLE
UNITED STATES DIST

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