Langevin v. Colvin

Filing 29

ORDER GRANTING 21 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 23 Defendant's Motion for Judgment on the Pleadings. This matter is remanded back to the Commissioner for further proceedings. Signed by US District Judge Terrence W. Boyle on 9/2/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-65-BO
PATRICIA ANN LANGEVIN,
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 21 & 23]. A hearing on this matter was held in Raleigh, North Carolina on
August 28, 2014 at 10:00 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
On January 22, 2010, Ms. Langevin filed applications for disability insurance benefits
and supplemental security income benefits alleging that she had been disabled since May 15,
2009. The applications were denied initially and upon reconsideration. Subsequently, at
plaintiffs request, an Administrative Law Judge ("ALJ") held a hearing on October 18,2011 and
then rendered an unfavorable decision on October 28, 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).

Ms. Langevin was 36 years old at the time of her alleged onset of disability. She has
completed the lOth grade and does not hold a high school diploma. [Tr. 215]. Plaintiff has
worked as an order filler and appointment clerk in the past. [Tr. 51]. Plaintiff suffers from posttraumatic stress disorder ("PTSD"), and major depressive disorder. [Tr. 19, 282, 322-24].
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)). 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.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

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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).
Here, the record is clear - plaintiff has profound non-exertional limits which are
evidenced in part by numerous GAF scores below 50. However, the hypothetical proffered to the
Vocational Expert ("VE") did not include all of the non-exertional limitations which the record
supports. [Tr. 50]. The ALJ arrived at the hypothetical given to the VE by cherry picking
evidence in the record which supported only his version of the hypothetical. Such cherry picking
is not allowed. Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir. 2006). The ALJ arrived at the
hypothetical by discounting the evidence in the record which supports plaintiffs claims of nonexertionallimitations as a result of the side-effects of her medications. [Tr. 21-26].
The ALJ erred in failing to incorporate the side-effects of plaintiffs medications into his
RFC finding. [Tr. 21-26]. The record contains substantial documentation of the side-effects of
claimant's many medications. [Tr. 42, 44-45, 46, 48-49, 285-86]. Plaintiffs treating physician,
Dr. Zinacola, properly supported his medical opinion on the limiting effect of plaintiffs
medications on her ability to work. [Tr. 286]. As such it was error to not consider these
limitations in forming plaintiffs RFC and to not provide the limitations in the hypothetical to the
VE.
As there has been no step five determination under the proper RFC, the proper action is
to remand this matter to the Commissioner for further proceedings consistent with this opinion.

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Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011). Upon remand, the Commissioner should
reconsider, giving proper weight to Dr. Zinacola's opinion, whether plaintiff meets or exceeds
any of the Listings. Further, if she finds that plaintiff does not, an RFC including appropriate
non-exertional limitations caused by the side-effects of plaintiffs medications should be given
and then a proper hypothetical should be given to the VE which includes all of the appropriate
non-exertionallimitations.
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 _..tt: day of September, 2014.

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UNITED STATES DISTRIC JUDGE

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