DRY v. COLVIN
Filing
16
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 7/29/2015. ORDERED that the Commissioner's decision finding no disability is REVERSED and that this matter is REMANDED under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings, consistent with this Memorandum Opinion and Order. As a result, the Commissioner's motion for judgment on the pleadings (Doc. 12 ) is DENIED, and Plaintiff's motion to reverse the Commissioner (Doc. 9 ) is GRANTED. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEWEY W. DRY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
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1:13CV300
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Dewey W. Dry (“Plaintiff”) brought this action
pursuant to Sections 205(g) and 1631(c)(3) of the Social
Security Act (the “Act”), as amended and codified at 42 U.S.C.
§§ 405(g), 1383(c)(3), to obtain judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”), denying Plaintiff’s claim for Social Security
Disability Insurance benefits under Title II of the Act (“SSDI”)
and Supplemental Security Income benefits under Title XVI of the
Act (“SSI”).
Plaintiff subsequently filed a Motion for Judgment
Reversing or Modifying the Decision of the Commissioner, or
Remanding the Cause for a Rehearing (Doc. 9), and the
Commissioner has filed a Motion for Judgment on the Pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
(Doc. 12).
The administrative record has been certified to this
court for review.1
For the reasons set forth below, the Commissioner’s motion
will be denied, Plaintiff’s motion will be granted, and this
case will be remanded for a rehearing pursuant to sentence four
of 42 U.S.C. § 405(g).
I.
BACKGROUND
Plaintiff filed applications for SSDI and SSI benefits on
July 22, 2009 and August 18, 2009, respectively, alleging a
disability beginning on June 13, 2009. (Tr. at 171-77.)
Plaintiff’s claims were denied initially and upon
reconsideration. (Id. at 42-43, 76-84.) Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). (Id. at 9092.) The hearing was held on September 13, 2011. (Id. at 9-25.)
1
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 7.)
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In a decision dated February 14, 2012, the ALJ found2 Plaintiff
was not disabled between June 13, 2009 and the day of the
decision, and as a result, denied Plaintiff’s claims. (Id. at
61-71.)
On February 8, 2013, the Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision (id. at
1-3), and Plaintiff filed the present action on April 11, 2013.
In his decision, the ALJ found that Plaintiff had the
following severe impairments: major depressive disorder; pain;
fibromyalgia; and history of polysubstance abuse.
(Tr. at 63.)
However, the ALJ found that Plaintiff’s impairments, alone or in
combination, did not meet or medically equal the severity of one
of the listed impairments in 20 C.F.R. pt. 404, subpt. P,
app. 1. (Id.) The ALJ specifically considered Listing 1.02,
defining “Major Dysfunction of a Joint,” and Listings 12.04 and
12.09, defining “Affective Disorders” and “Substance Addiction
Disorders,” respectively.
20 C.F.R. pt. 404, subpt. P, app. 1.
2
“The Commissioner uses a five-step process to evaluate
disability claims.” Hancock v. Astrue, 667 F.3d 470, 472 (4th
Cir. 2012) (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)).
“Under this process, the Commissioner asks, in sequence, whether
the claimant: (1) worked during the alleged period of
disability; (2) had a severe impairment; (3) had an impairment
that met or equaled the requirements of a listed impairment; (4)
could return to his past relevant work; and (5) if not, could
perform any other work in the national economy.” Id. A finding
adverse to the claimant at any of several points in this fivestep sequence forecloses a disability designation and ends the
inquiry.
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The ALJ determined that the Plaintiff had the Residual
Functional Capacity (“RFC”)4 to perform “medium work,” as
Plaintiff “can lift/carry 50 pounds occasionally and 25 pounds
frequently” and “can stand/walk 6 hours in an 8-hour day, and he
can sit 6 hours in an 8-hour workday.”
The ALJ also found that
Plaintiff’s RFC had the following limitations: “[Plaintiff] is
limited to simple, routine and repetitive tasks, in a nonproduction low stress environment, with limited social
interaction.”
(Tr. at 64).
Having determined Plaintiff’s RFC, the ALJ determined that
Plaintiff was unable to perform any past relevant work. (Id. at
69.) The ALJ then consulted the Medical-Vocational Guidelines
outlined in 20 C.F.R. pt. 404, subpt. P, app. 2. Plaintiff’s
birthday is September 19, 1954, was 54 years old at the time he
filed his applications, and was “an individual closely
approaching advanced age.” (Id.) However, by the time the ALJ
rendered his decision in February 2012, Plaintiff met the
4
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines v. Barnhart, 453
F.3d 559, 562 (4th Cir. 2006) (noting that administrative
regulations require RFC to reflect claimant’s “ability to do
sustained work-related physical and mental activities in a work
setting on a regular and continuing basis . . . [which] means 8
hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
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definition of a “[p]erson of advanced age.” See 20 C.F.R.
§ 416.963(e).
The ALJ found Plaintiff has a high school education and is
able to communicate in English. (Tr. at 70.) The ALJ did not
make a finding as to whether or not Plaintiff’s skills are
transferrable.
Applying these factors, the ALJ found that, if
Plaintiff could perform the full range of “medium work” and once
Plaintiff reached “advanced age,” Plaintiff would meet the
requirements of Medical-Vocational Guideline 203.15. (Id.) Rule
203.15 requires a finding of “not disabled.”
20 C.F.R. pt. 404,
subpt. P, app. 2, tbl.3 § 203.15.
However, because Plaintiff could not perform the full range
of medium work due to his limitations listed above, the ALJ used
the Medical-Vocational Guidelines as a starting point and
consulted a vocational expert.
(Id.)
The ALJ found that,
considering Plaintiff’s age, education, work experience, and
RFC, there were other jobs that existed in significant numbers
in the national economy that he was able to perform, including
cleaning positions, kitchen helper, and supply worker.
(Id. at
70-71.)
After the hearing, the ALJ left the record open so that
Plaintiff could submit additional evidence.
(Id. at 24.)
Plaintiff submitted a treatment note from Carolina Behavioral
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Care dated August 5, 2011 (id. at 513-15), and some of the
therapy notes from Triumph, LLC (id. at 516-56). (See id. at
231.)
The ALJ also added a medical source statement from a
consultative psychological examination conducted by Dr. Carol M.
Gibbs.
(Id. at 233, 557-60.)
Plaintiff responded in opposition
to this medical source statement.
(Id. at 234.)
No evidence
was provided as to Plaintiff’s physical limitations during this
period.
On February 14, 2012, the ALJ entered his decision finding
that Plaintiff was not disabled.
(Id. at 61-71.)
petitioned for review by the Appeals Council.
Plaintiff
(Id. at 235-39.)
As his appeal was pending, Plaintiff submitted additional
medical evidence of Plaintiff’s foot problems, specifically
medical records from Plaintiff’s podiatrist, Dr. Mark Pifer,
dated January 7, 2011 through February 11, 2011.
561-63.)
(Id. at 5, 7,
The Appeals Council reviewed this new evidence and the
arguments made by Plaintiff but ultimately determined that there
was no reason to review the decision of the ALJ.
(Id. at 1-2.)
With the Appeals Council denial of Plaintiff’s request to
review the ALJ’s decision, the ALJ’s decision became the final
decision of the Commissioner (id. at 1), and Plaintiff filed the
present action on April 11, 2013, challenging that decision.
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(Doc. 1.)
The parties then each filed their present motions
(Docs. 9, 12), and this issue is now ripe for adjudication.
II.
LEGAL STANDARD
Federal law authorizes judicial review of the Social
Security Commissioner’s denial of social security benefits.
42 U.S.C. § 405(g); Hines, 453 F.3d at 561.3
However, the scope
of review of such a decision is “extremely limited.”
Harris, 646 F.2d 143, 144 (4th Cir. 1981).
to try the case de novo.”
(4th Cir. 1974).
Frady v.
“The courts are not
Oppenheim v. Finch, 495 F.2d 396, 397
Instead, “a reviewing court must uphold the
factual findings of the ALJ if they are supported by substantial
evidence and were reached through application of the correct
legal standard.”
Hancock, 667 F.3d at 472 (internal quotation
marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
3
Plaintiff applied for and was denied both SSDI benefits
under Title II of the Act and SSI benefits under Title XVI of
the Act. However, “[t]he statutory definitions and the
regulations promulgated by the [Commissioner] for determining
disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416
(SSI), governing these two programs are, in all aspects relevant
here, substantively identical.” Craig v. Chater, 76 F.3d 585,
589 n.1 (4th Cir. 1996).
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“It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.”
Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation
marks omitted).
“If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
substantial evidence.”
Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
“In reviewing for substantial evidence, the court should
not undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[ALJ].”
Mastro, 270 F.3d at 176 (internal brackets and
quotation marks omitted).
“Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the ALJ.”
Hancock, 667 F.3d at 472.
Additionally, courts must review the
entire record, including evidence that the Appeals Council
incorporates into the administrative record, even if the ALJ did
not have access to the evidence when the ALJ made his or her
decision.
See Wilkins v. Sec’y, Dep’t of Health & Human Servs.,
953 F.2d 93, 96 (4th Cir. 1991).
Pursuant to its powers under 42 U.S.C. § 405(g), this court
can remand a case to the Commissioner, either to consider new
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and material evidence, a “sentence six” remand,4 or because the
original ALJ’s decision is not supported by substantial evidence
or did not apply a correct legal standard, a “sentence four”
remand.
See 42 U.S.C. § 405(g).
III. ANALYSIS
The crux of Plaintiff’s argument is that the ALJ’s physical
RFC calculation that Plaintiff could “stand and walk for up to
six hours in an eight-hour work day” was not supported by
substantial evidence.
7.)
(Tr. at 64; see Pl.’s Br. (Doc. 10) at 6-
To challenge this determination, Plaintiff contends that
the ALJ’s decision to discount a medical opinion, stating
Plaintiff could not stand for more than an hour at a time, is no
longer supported by substantial evidence due to the new evidence
4
To qualify for a “sentence six” remand, Plaintiff must
demonstrate that the evidence for which he seeks remand is
(1) “new,” meaning it is not duplicative or cumulative; (2)
“material,” meaning there is a reasonable possibility that it
would have changed the outcome; and that (3) there is “good
cause” for the failure to incorporate such evidence into the
record in a prior proceeding. 42 U.S.C. § 405(g); Wilkins, 953
F.2d at 95-96; see also Fagg v. Chater, No. 95-2097, 1997 WL
39146, at *2 (4th Cir. 1997) (per curiam) (placing the burden on
plaintiff to prove these three factors). The evidence Plaintiff
puts forward are treatment notes from early 2011, and the ALJ’s
hearing took place in September 2011 - meaning that this
evidence is not “new” within the meaning of sentence six.
Therefore, a “sentence six” remand is not the appropriate
procedural step at this point.
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submitted to the Appeals Council.5
For reasons stated herein,
this court agrees and will remand for a rehearing.
Kristina Silberstein is a Physician Assistant - Certified
(“PA-C”) and was Plaintiff’s primary care provider during the
relevant time period.
(Tr. at 66.)
Silberstein submitted a
medical source statement on June 29, 2011,6 asserting that
Plaintiff can stand/walk for less than two hours total in an
eight-hour workday with normal breaks, as Plaintiff’s foot
problems prevent him from standing for more than an hour at a
time.
(Id. at 66, 484-85.)
In his decision, the ALJ assigned “little weight” to
Silberstein’s opinion.
(Tr. at 66.)
Instead of finding that
Plaintiff was limited in the amount of time he could stand or
walk, the ALJ assessed Plaintiff’s RFC as being capable of
“medium work,” which often requires “a good deal of walking or
standing,” see 20 C.F.R. § 416.967(b)-(c) (incorporating the
5
Plaintiff’s other arguments concern (1) the ALJ making an
improper credibility finding regarding Plaintiff’s testimony and
(2) the ALJ’s mental RFC calculation and the evidence the ALJ
considered regarding Plaintiff’s mental impairments. (Pl.’s Br.
(Doc. 10) at 9-12.) However, because this court will remand for
a rehearing for other reasons, this court need not consider
these arguments made by the parties.
6
Although not made by a physician, Silberstein’s opinion is
nonetheless a “medical opinion” from an “acceptable medical
source.” As a result, the ALJ must consider the opinion and
determine the weight to give the opinion under 20 C.F.R.
§ 404.1527.
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definition of “light work” into the definition of “medium
work”), and specifically found that Plaintiff could stand and/or
walk for six hours in an eight-hour day.
(Id. at 64.)
The ALJ explained his decision to not assign much weight to
Silberstein’s opinion.
First, the ALJ found conflicting
evidence with Silberstein’s assessment that Plaintiff could not
maintain employment after 2003 due to his foot pain.
67.)
(Id. at
Because the ALJ found these assertions conflicted with
Silberstein’s own treatment records and other evidence, the ALJ
found that there was “a huge cloud of doubt over her credibility
as a limitation assessor - a doubt that the [ALJ] took into
great consideration.”
(Id.)
Second, the ALJ placed “great
weight” on the State agency physical assessment.
265.)
(Tr. 68, 258-
That assessment found that Plaintiff could “[s]tand
and/or walk (with normal breaks) for a total of . . . about 6
hours in an 8-hour workday.”
(Id. at 259.)
Third, the ALJ
added that “it does not help matters that the record evidence,
as of June 13, 2009, and forward, does not contain much
treatment history for the claimant’s plantar fasciitis.”
(Id.
at 67.)
In analyzing the ALJ’s decision, this court is careful not
to reweigh Silberstein’s credibility or make judgments as to any
conflicting medical evidence, as those determinations are firmly
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within the purview of the ALJ.
Mastro, 270 F.3d at 176.
Instead, this court must review the record to find whether or
not the ALJ’s determinations are supported by substantial
evidence.
After conducting this analysis, this court finds that
the ALJ has not provided sufficient explanation for the lack of
weight he assigned Silberstein’s opinion.
First, as Plaintiff points out in his brief, the ALJ’s
conclusion that Silberstein’s own treatment notes contradicted
her opinion does not appear to be supported by substantial
evidence.
(Pl.’s Br. (Doc. 10) at 6-8.)
In her treatment notes
dated June 29, 2011, Silberstein indicates that Plaintiff “says
his chronic foot pain makes [Plaintiff’s vocational training for
work as a truck driver] difficult - he has spasm in the L leg
every day after he does the training.” (Tr. at 472.) About this
note, the ALJ found that Silberstein’s conclusion that Plaintiff
could not work or stand for long periods due to his plantar
fasciitis was undercut by the fact that Plaintiff’s “trouble”
was “coming from experiencing spasms in his left leg every day
after doing the training, not from the plantar fasciitis as Ms.
Silberstein seems to indicate in her statement.” (Tr. at 67.)
Additionally, the ALJ identified statements by Plaintiff that
his mental impairments had prevented him from maintaining
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employment, indicating to the ALJ that physical impairments had
not played a role.
Cautious not to reweigh conflicting evidence, this court is
uncertain whether and how Plaintiff’s inability to complete his
training due to leg spasms is in contradiction with his
complaints of plantar fasciitis.
In his opinion, the ALJ offers
no explanation as to why the ALJ found these statements
contradictory.
The ALJ stated that this contradiction was a
“great consideration” as he made his decision (id. at 67), and
without further explanation of how these facts are in
contradiction, it is difficult to review whether the ALJ
properly weighed Silberstein’s medical opinion.
Second, the evidence that is now contained within the
record undercuts the ALJ’s statement that “the record evidence
. . . does not contain much treatment history for [Plaintiff’s]
plantar fasciitis.”
(Id.)
The ALJ used the lack of evidence to
confirm the little weight he gave to Silberstein’s opinion.
(Id.)
Reviewing the transcript, there is evidence in the record
of Plaintiff’s complaints of chronic foot pain and diagnosis of
plantar fasciitis and bone spurs, dating from July 2010.
e.g., id. at 428-30, 437, 441, 474, 486-88.)
(See,
Plaintiff was also
examined by podiatrist, Dr. Mark Pifer, who found that Plaintiff
had “inferior calcaneal spurs in both feet with the left being
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worse than the right,” and prescribed molded foot orthotics and
pain medication.
(Id. at 561-63.)
The treatment notes from Dr. Pifer were incorporated by the
Appeals Council into the administrative record.
(Id. at 5.)
Because “the Appeals Council consider[ed] the new evidence but
decline[d] to review the case,” this court must “review the
ALJ's decision and determine whether there is substantial
evidence in the administrative record, which now includes the
new evidence, to support the ALJ's decision.”
Nelson v.
Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).
Based on the
evidence from Dr. Pifer, this court finds that the ALJ’s
statement that there are no records of treatment is unsupported.
Again, this court does not reweigh the credibility of
Silberstein’s observations that Plaintiff could not stand for
more than an hour at a time.
But, when this court looks to the
reasons why the ALJ discounted Silberstein’s medical opinion an apparent contradiction between Plaintiff’s statements
concerning leg spasms and Silberstein’s discussion of plantar
fasciitis as well as a lack of treatment for plantar fasciitis this court finds that those reasons are no longer valid based on
the evidence that is contained in the administrative record.
a result, the ALJ has completely discounted the opinion of a
medical source without providing sufficient explanation.
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As
Furthermore, the court notes that the ALJ’s decision to
assign little weight to Silberstein’s medical opinion does
appear to have impacted the outcome in this case due to the
interplay of the Medical-Vocational Guidelines.
The ALJ
determined that Plaintiff could perform all of the physical
exertional requirements of “medium work.”
(See Tr. at 64
(finding Plaintiff could “lift/carry 50 pounds occasionally and
25 pounds frequently” and “stand/walk 6 hours in an 8-hour
workday”).) If Silberstein’s opinion was credited at all, it
would appear that the ALJ would not be able to conclude that
Plaintiff could perform such work.
Under the Medical-Vocational
Guidelines, a finding that Plaintiff could only perform “light
work” - which would still require “a good deal of standing or
walking,” see 20 C.F.R. § 416.967(b) - would render Plaintiff
“disabled” under Guideline 202.06 as of his 55th birthday, a
mere three months after the alleged onset date.
pt. 404, subpt. P, app. 2, tbl.2, § 202.06.
See 20 C.F.R.
A finding that
Plaintiff could only perform “sedentary work,” would similarly
require a finding of “disabled” under Guidelines 201.06 and
201.14, assuming that Plaintiff does not have transferrable
skills.
See id. tbl.1, §§ 201.06, 201.14.
Because the
exertional limitations potentially exhibited by Plaintiff
determine where Plaintiff falls within the Medical-Vocational
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Guidelines, Silberstein’s opinion as to whether Plaintiff can
stand or walk for less than an hour at a time must be carefully
weighed.
At the same time, this court cannot direct a finding of
disability at this point due to additional findings that must be
made.
For instance, the ALJ has not determined whether or not
Plaintiff has “transferrable” skills, and in the Medical
Vocational Guidelines, this issue could determine whether the
Guidelines direct a finding of disability or not.
Accordingly,
this court will remand for a rehearing so that the ALJ may
consider these issues.
III. CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is REVERSED and that this matter is
REMANDED under sentence four of 42 U.S.C. § 405(g), for further
administrative proceedings, consistent with this Memorandum
Opinion and Order.
As a result, the Commissioner’s motion for
judgment on the pleadings (Doc. 12) is DENIED, and Plaintiff’s
motion to reverse the Commissioner (Doc. 9) is GRANTED.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
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This the 29th day of July, 2015.
_____________________________________
United States District Judge
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