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Burney v. Berryhill

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

August 22, 2017

CLIFTON BURNEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on cross-motions for judgment on the pleadings. [DE 15, 17]. A hearing was held on these matters before the undersigned on July 25, 2017, in Raleigh, North Carolina. For the reasons discussed below, the decision of the Commissioner is reversed.

         BACKGROUND

         Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final decision of the Commissioner denying his claim for disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act. Plaintiff protectively filed his applications on December 19, 2011, alleging disability beginning October 17, 2011. After initial denials, a hearing was held before an Administrative Law Judge ("ALJ") who issued an unfavorable ruling. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied plaintiffs request for review. Plaintiff then timely sought review of the Commissioner's decision in this Court.

         DISCUSSION

         Under the Social Security Act, 42 U.S.C. §§ 405(g), and 1383(c)(3), this Court's review of the Commissioner's decision is limited to determining whether the decision, as a whole, is supported by substantial evidence and whether the Commissioner employed the correct legal standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and citation omitted).

         An individual is considered disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other line of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).

         Regulations issued by the Commissioner establish a five-step sequential evaluation process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision regarding disability can be made at any step of the process, however, the inquiry ceases. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         At step one, if the Social Security Administration determines that the claimant is currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks whether the claimant has a severe impairment or combination of impairments. If the claimant has a severe impairment, it is compared at step three to those in the Listing of Impairments ("Listing") in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or medically equals a Listing, disability is conclusively presumed. If not, at step four, the claimant's residual functional capacity ("RFC") is assessed to determine if the claimant can perform his past relevant work. If so, the claim is denied. If the claimant cannot perform past relevant work, then the burden shifts to the Commissioner at step five to show that the claimant, based on his age, education, work experience, and RFC, can perform other substantial gainful work. If the claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R. § 416.920(a)(4).

         At step one, the ALJ determined that plaintiff met the insured status requirements and had not engaged in substantial gainful activity since his alleged onset date. Plaintiffs osteoarthritis, degenerative joint disease of the bilateral knees, degenerative disc disease of the lumbar spine, status post lower extremity burns, and his adjustment disorder (depressed mood and anxiety) were considered severe impairments at step two, but were not found alone or in combination to meet or equal a listing at step three. The ALJ concluded that plaintiff had the RFC to perform sedentary work with additional exertional limitations. The ALJ then found that plaintiff was unable to return to his past relevant work but that, considering plaintiffs age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that plaintiff could perform such as Election Clerk, Addresser, and Stuffer. Thus, the ALJ determined that plaintiff was not disabled under the Act.

         An ALJ makes an RFC assessment based on all of the relevant medical and other evidence. 20 C.F.R. § 404.1545(a). An RFC should reflect the most that a claimant can do, despite the claimant's limitations. Id. An RFC finding should also reflect the claimant's ability to perform sustained work-related activities in a work setting on regular and continuing basis, meaning eight-hours per day, five days per week. SSR 96-8p; Mines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006). The ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p. If an opinion from a treating source is well-supported by and consistent with the objective medical evidence in the record, it may be entitled to controlling weight. 20 C.F.R. §§ 404.1527(c), 416.927(c). Where an opinion is inconsistent with other evidence in the record, the ALJ need not give that opinion any significant weight. Id.; see also Craig v. Chater, 16 F.3d 585, 590 (4th Cir. 1996) ("[I]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight."). However, ALJ's decision to do so must be accompanied by "a narrative discussion" that discusses "how the evidence supports each conclusion, " such that the ALJ's decision is sufficiently specific to make it clear to a reviewing district court "why the opinion was not adopted." See SSR 96-8p.

         The ALJ's decision in this instance is not supported by substantial evidence. The ALJ found plaintiff capable of sedentary work, except that he requires a sit/stand option with no more than two position changes an hour while remaining on task; is limited to occasional pulling/pushing with the lower extremities; is limited to occasional climbing of ramps and stairs; cannot climb ladders, ropes or scaffolds; is limited to occasional balancing, kneeling, crouching and crawling; must avoid hazards such as dangerous machinery and unprotected heights; requires the use of a hand held assistive device, such as a cane, for ambulation; and can perform simple, repetitive, routine tasks consistent with unskilled work. This conclusion is not supported by the record.

         First, Dr. Brown's chart notes and imaging results constitute new and material evidence that must be reconciled with the other evidence of record and which demonstrates additional RFC limitations not taken into account by the ALJ. Dr. Brown, plaintiffs treating neurosurgeon, believed plaintiffs back impairment to be severe and that conservative treatment had not helped his pain and therefore decided, after reviewing plaintiffs x-rays and MRI records, that back surgery was necessary. Tr. at 572-73, 574, 575-76, 578, 58-82, 583-84. Dr. Brown also believed that plaintiff would require the use of a cane after surgery. Id. As plaintiffs only treating neurosurgeon, Dr. Brown's opinion offers a unique and material viewpoint on plaintiffs conditions that was not previously available. Additionally, Dr. Brown formed this opinion in reviewing treatment records and MRIs that were taken before plaintiffs date last insured. Therefore, these treatment records are new and material information presented to the Appeals Council but not considered by the ALJ that this Court can consider. Wilkins v. Sec. HHS, 953 F.2d 93, 96 (4th Cir. 1991). This opinion is material evidence of plaintiff s additional limiations.

         Next, Dr. Shumate's opinion was improperly discounted by the ALJ. Specifically, Dr. Shumate, plaintiffs primary care physician, opined that indicated that plaintiff suffered from knee pain and swelling and from chronic lumbar pain caused by degenerative disc disease, required the use of a cane when standing or walking, and that his pain prevented him from sitting for six hours in an eight-hour workday. Tr. at 569-70. The ALJ's RFC did not adopt all of these opined limitations, ...


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