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Greene v. Colvin

United States District Court, E.D. North Carolina, Western Division

February 12, 2014

JOSEPH A. GREENE, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant

Decided: February 11, 2014.

For Joseph A. Greene, Plaintiff: Frederick (Rick) W. Fleming, The Law Offices of James Scott Farrin, Durham, NC.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Elisa Donohoe, Michael A. Haar, LEAD ATTORNEYS, Leo R. Montenegro, Social Security Administration, Baltimore, MD.

OPINION

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on the parties' cross-motions for judgment on the pleadings. [DE 18 & 26]. A hearing on this matter was held in Raleigh, North Carolina on January 30, 2014 at 4:15 p.m. For the reasons discussed below, plaintiff's motion is GRANTED, defendant's motion is DENIED, and, accordingly, the judgment of the Commissioner is REVERSED.

BACKGROUND

On June 27, 2005, plaintiff protectively filed an application for a period of disability and disability insurance benefits, alleging a disability onset date of November 6, 2002 [Tr. 41--42, 46]. His application was denied initially and upon reconsideration. During a video hearing on June 27, 2007, plaintiff testified, represented by an attorney, and a vocational expert testified. [Tr.

Page 846

818--62]. On August 31, 2007, an Administrative Law Judge (" ALJ" ) found plaintiff not disabled. [Tr. 43--56]. On December 9, 2008, the Appeals Council remanded the case to an ALJ [Tr. 99--102]. A second hearing was held on March 22, 2009. [Tr. 798--817]. On May 12, 2009, a new ALJ found plaintiff not disabled. [Tr. 515--31]. On October 22, 2010, the Appeals Council remanded the case to an ALJ again. [Tr. 532--35]. The Appeals Counil also directed that on remand, plaintiff's subsequent claims for Title II and Title XVI benefits on June 12, 2009, be associated with plaintiff's initial claim for Title II. [Tr. 534]. A third hearing was held on July 22, 2011. [Tr. 751--97]. On October 3, 2011, a third ALJ found plaintiff not disable. [Tr. 19--39]. On November 13, 2012, the Appeals Council denied plaintiff's request for review rendering the ALJ's decision the final decision of the Commissioner. On January 10, 2013, plaintiff filed this action seeking judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY

The instant claim originated with injuries sustained in an on-the-job accident. [Tr. 106--27]. Medical treatment was thereafter directed by the employer pursuant to N.C Gen. Stat. § 97-25. An MRI done on April 29, 2003, noted degenerative changes as well as spinal stenosis. [Tr. 277]. A second MRI was done on June 18, 2004 which also noted multilevel degenerative disc disease and facet arthropathy as well as central and neural foraminal canal stenosis. [Tr. 324--25]. Exercising his right to a second opinion examination with a physician of his choice pursuant to N.C. Gen. Stat. § 97-25, Mr. Greene saw a Dr. Derian. [Tr. 326--30]. Dr. Derian classified Mr. Greene's condition as lumbar degenerative disc disease at L3-S1 with herniated nucleus pulposus at L5-S1, and lumbar radiculopathy. [Tr. 326]. Dr. Derian believed surgery was necessary. [ Id. ]. The employer then sent Mr. Greene back to their own physician, Dr. Rice, who found that surgery was a reasonable option based on the last MRI scan. [Tr. 331].

After two recommendations for surgery, the employer then sent Mr. Greene to Dr. Lestini for an independent medical examination. [Tr. 354--56]. Dr. Lestini opined that he did not think surgery was the correct solution at the time, and instead suggested aggressive weight loss and paraspinal strengthening measures. [Tr. 355]. Surgery was then denied. The worker's compensation matter was resolved on May 17, 2005, subsequent to litigation. [Tr. 108].

The ALJ found that Mr. Greene has the following severe impairments: degenerative disc disease/herniated disc, obesity, acute stress disorder, and depression. [Tr. 25]. The ALJ found ...


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