Whittington v. Colvin
| Decision Date | 15 July 2014 |
| Docket Number | 5:13-CV-243-FL |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | HAROLD B. WHITTINGTON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
In this action, plaintiff Harold B. Whittington ("plaintiff") challenges the final decision of defendant Acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") on the grounds that he is not disabled.1 The case is before the court on the respective parties' motions for judgment on the pleadings. (D.E. 24, 27). The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (See 2d Minute Entry dated 12 Dec. 2013). The motions have been fully briefed,2 and the court has heard argument on them (see D.E. 38). For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.
Plaintiff filed applications for DIB and SSI on 29 June 2010, alleging a disability onset date of 20 April 2009. Transcript of Proceedings ("Tr.") 18. The applications were denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 18. On 14 June 2011, a hearing was held before an Administrative Law Judge ("ALJ"). Tr. 18, 33-76. The ALJ issued a decision denying plaintiff's claim on 3 August 2011 ("2011 decision"). Tr. 18-32. Plaintiff timely requested review by the Appeals Council. Tr. 14. On 31 January 2013, the Appeals Council admitted additional exhibits (Tr. 6), namely, a brief of contentions from plaintiff's counsel (Tr. 290-91) and a state decision finding plaintiff eligible for Medicaid assistance ("Medicaid decision") (Tr. 526-28), but denied the request for review (Tr. 1). At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. Plaintiff commenced this proceeding for judicial review on 3 April 2013, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). .
On 15 March 2013, shortly after the Appeals Council denied review of the 2011 decision, plaintiff filed a new application for DIB ("2013 application") (D.E. 37-1 at 1-33). On 30 August 2013, the Social Security Administration ("SSA") sent plaintiff a notice ("medical notice") (D.E. 37-1 at 12-13) informing him of its determination that he met the medical requirements for disability, but also that it had not yet determined whether he met the nonmedical requirements. Included with the medical notice was a Disability Determination and Transmittal ("DDT") (D.E.37-2 at 1) and a Disability Determination Explanation ("DDE") (D.E. 37-2 at 2-12) setting forth the analysis of the disability examiner in determining that plaintiff met the medical requirements for disability. On 13 December 2013, some eight months after the commencement of the instant case, the SSA issued plaintiff a notice of award ("award notice") (D.E. 30-1) informing him that he was being awarded DIB based on his 2013 application ("2013 award") for disability beginning on 4 August 2011. (Award Notice 1). That date is one day after issuance of the 2011 decision. On 24 February 2014, plaintiff filed in the instant case a Notice of New Evidence (D.E. 30) informing the court of this award of benefits and requesting remand on this additional basis. However, the only document plaintiff included with this Notice of New Evidence was a copy of the award notice, which contains no explanation of the impairments found to be the cause of plaintiff's disability.
On 28 May 2014, the court directed the Commissioner to file a memorandum in response to the Notice of New Evidence showing why this case should not be remanded in light of the substantial authority supporting remand of an initial decision denying a disability claim when a subsequent decision allows a disability claim and finds the claimant to have a disability onset date within a short period after the initial denial. (See 28 May 2014 Order (D.E. 31)). The court further directed the Commissioner to file a copy of the SSA decision explaining the basis of the 2013 award, which is necessary to the court's determination of the remand issue. (Id. at 2). The court also directed plaintiff to file a response to the Commissioner's memorandum. (Id.). The Commissioner timely filed a memorandum (D.E. 32) and plaintiff his response (D.E. 33). Because neither of the parties' filings provided the court with information indicating the basis for the 2013 award, the court set the matter for hearing and directed the parties to submit at the hearing a complete copy of plaintiff's 15 March 2013 application and any other documents fromthe SSA proceeding on that application. (See 23 June 2014 Order (D.E. 34)). On 3 July 2014, the Commissioner filed4 the specified documents5 (D.E. 37), and the court conducted a hearing on 7 July 2014 (see D.E. 38). After hearing the parties' respective arguments on whether the 2013 award requires remand, the court took the matter under advisement. (Id.)
The Social Security Act ("Act") defines disability as the "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "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 kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see 42 U.S.C. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings ["Listings"] in . . . and meets the duration requirement, we will find that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your residual functional capacity ["RFC"] and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of your [RFC] and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. . . . .
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.
In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. §§ 404.1523, 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id.
Plaintiff was 48 years old on the alleged onset date of disability and 50 years old on the date of the hearing. Tr. 26 ¶ 6; 41. The ALJ found that plaintiff has at least a high school education. Tr. 26 ¶ 6, 41. His past work includes employment as an inventory supervisor, cabinet maker, delivery person, retail store manager, and cable television technician and customer service representative. Tr. 25 ¶ 6.
Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since his alleged onset of disability. Tr. 20 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: degenerative disc disease ("DDD") with surgery and chronic cervical radiculopathy6; diabetes mellitus; hypertension; and morbid obesity. Tr. 20 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or equals one of the Listings. Tr. 21 ¶ 4.
The ALJ next determined that plaintiff had the...
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