Opinion
Civil Action No. 8:18-cv-03053-DCC-JDA
11-21-2019
Kristopher W. Berry, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
On December 27, 2016, Plaintiff filed an application for disability insurance benefits ("DIB") [R. 167-70] alleging an onset of disability date of December 22, 2016. The claim was denied initially [R. 97-100], and upon reconsideration [R. 106-11]. Thereafter, the claimant filed a written request for hearing and on May 31, 2018, Plaintiff appeared with an attorney and testified in a video hearing before Administrative Law Judge ("ALJ") Marcus Christ. [R. 29-60.]
The ALJ issued a decision on July 11, 2018, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 12-24.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through June 30, 2019, and had not engaged in substantial gainful activity since December 22, 2016, the alleged onset date. [R. 14, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of: degenerative disc disease of the cervical spine and a post-traumatic stress disorder (PTSD). [R. 14, Finding 3.] The ALJ also found that Plaintiff had a medically determinable impairments of left hand condition, tinnitus, a knee condition, bone spurs, and migraine headaches, but that these impairments are non-severe because they do not represent more than a minimal limitation in the ability to perform basic work activities. [Id.] At Step 3, the ALJ found Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [R. 15, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a range of medium work activity as defined in 20 CFR 404.1567(c). Specifically, the claimant is able to lift and carry up to 50 pounds occasionally and 25 pounds frequently and stand, walk, and sit for 6 hours in an 8-hour day. The claimant can occasionally climb ladders, ropes, and scaffolds and frequently climb ramps and stairs, stoop, crouch, kneel, and crawl. He must avoid even moderate exposure to excessive noise. The claimant is limited to the performance of simple, routine, and repetitive tasks performed in a low stress environment defined as having only occasional changes in the work setting. He can perform work requiring occasional interaction with the public and co-workers.[R. 16, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff is unable to perform his past relevant work as a parts manager, a keyman, a pest control worker, an inventory manager, and a United States Marine. [R. 22, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff can perform. [R. 22, Finding 10.] Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, from December 22, 2016, through the date of the decision. [R. 23, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined. [R. 1-6.] Plaintiff filed an action for judicial review and on November 9, 2018.
THE PARTIES' POSITIONS
Plaintiff contends that errors by the ALJ require the decision to be remanded for additional administrative proceedings. [See Doc. 8.] Specifically, Plaintiff argues there is a clear conflict between the DOT and the VE testimony because "[t]he 4th Circuit has ruled that if a claimant is limited to simple, routine, repetitive tasks, then the DOT says he cannot perform a GED 2 job." [Id. at 26.] Plaintiff contends that "the ALJ never asked the VE if his testimony was consistent with the DOT and the VE gave no explanation regarding the discrepancy between the GED reasoning levels and the ALJ's limitation to simple, routine tasks. The ALJ's failure to elicit an explanation regarding these particular conflicts warrants remand for further evaluation." [Id. at 28.] Plaintiff also argues that the ALJ failed to properly consider and evaluate the VA's rating decision finding him at a 100% disability rating for his service-connected disabilities. [Id.]
The Commissioner contends the decision is supported by substantial evidence and should be affirmed. [Doc. 9.] The Commissioner argues that there is no conflict between an RFC for simple, routine jobs and a job described in the DOT at Reasoning Level 2. [Id. at 8.] The Commissioner also argues that the ALJ properly found the VA's decision in this case was entitled to less weight. [Id. at 9.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined 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 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Evaluation of VA Rating Decision
While a VA disability determination is not binding on the Commissioner, as a starting point, the Administration must give substantial weight to a VA disability rating. Robinson v. Colvin, No. 6:15-cv-1786-TMC-KFM, 2016 WL 3617971, at *9-11 (D.S.C. June 11, 2016), Report and Recommendation adopted by 2016 WL 3595564 (D.S.C. July 5, 2016). The ALJ should sufficiently explain the consideration given to a VA disability decision. Id.; Bird v. Commissioner, 699 F.3d 337, 343-44 (4th Cir. 2012) (holding that generally "the SSA must give substantial weight to a VA disability rating"); see also SSR 06-03P, 2006 WL 2329939, at *7 (SSA) (ALJ "should explain the consideration given to [the VA disability determination] in notice of decision"). Under Bird, the Commissioner may give less weight to a VA disability rating when the record before the ALJ "clearly demonstrates" that such a deviation from a finding of substantial weight is appropriate. See Bird, 699 F.3d at 343; see also Gannon v. Colvin, No. 9:15-cv-3250-RMG-BM, 2016 WL 5339698, at *6-7 (D.S.C. Aug. 22, 2016), Report and Recommendation adopted by 2016 WL 5338504 (D.S.C. Sept. 21, 2016) (holding that the ALJ's minimal discussion of the VA rating was not sufficient to clearly demonstrate that a deviation from a finding of substantial weight was appropriate, and remanding for a more proper weighing pursuant to the methodology outlined in Bird); Robinson, 2016 WL 3617971, at *9-11 (where the ALJ did not discuss in any detail why or how he assigned weight to the VA rating decision, remanding for the ALJ to follow the method prescribed in Bird); Wood v. Colvin, No. 9:12-cv-3570-MGL, 2014 WL 607707, at *4 (D.S.C. Feb. 18, 2014) (remanding so the ALJ could properly discuss the VA disability rating and whether deviation was appropriate under the Bird standard); Cobbs v. Colvin, No. 1:12-cv-3472-JMC, 2014 WL 468928, at *8-9 (D.S.C. Feb. 4, 2014) (remanding for evaluation of the VA ratings in accordance with the Bird standard).
In this case, the ALJ committed the following paragraph to discussing the VA disability rating:
The undersigned has also considered the VA medical opinions regarding the claimant's disability and ability to work. Department of Veterans Affairs records reveal the claimant was found to have individual unemployability as of December 2016 with a 100% disability rating due to PTSD as of April 27, 2017, due to his inability to secure or follow a substantial gainful occupation as a result of service-connected disabilities. Exhibit 7E. The claimant previously had an 80% service connected disability rating (70% PTSD, 10% cervical strain, 10% tinnitus). Exhibit 3F. Following a thorough review, the undersigned accords less weight to the VA disability findings and ratings as the record clearly indicates that a deviation from substantial weight is appropriate. See also Bird v. Com. of SSA, 4th Cir., No. 111-1645, 2012. As detailed above, the medical evidence shows the claimant was able to work despite his impairments in the past and no significant deterioration in the claimant's medical condition in December 2016 is documented by the medical record, including findings upon examination. Given the clinical findings upon examination, the claimant's limited history of treatment, and the claimant's activities of daily living as discussed above, the undersigned accords these VA findings little weight.[R. 21.]
"Like the VA, the SSA was required to undertake a comprehensive evaluation of [Plaintiff's] medical condition. Because the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency." Bird, 699 F.3d at 343. Upon review, this Court concludes that the ALJ failed to comply with Bird and the Court is thus unable to determine if substantial evidence supports the ALJ's decision to give little weight to the VA disability determination. As explained herein, the ALJ's decision fails to bridge the gap between the evidence and his ultimate findings sufficiently for this Court to make a substantial-evidence review.
As an initial matter, there is no indication at all that the ALJ's analysis started from an assumption that the VA rating decision was entitled to "substantial weight." Id.; see also McClora v. Colvin, Civ. A. No. 5:14-cv-441-DCN, 2015 WL 3505535, at *16 (D.S.C. June 3, 2015) (finding remand appropriate because the ALJ's decision "does not indicate that ... [the ALJ] considered 'substantial weight' to be the starting point for weight to give to VA ratings"). Further, the ALJ gives only a cursory summary of Plaintiff's medical history with the VA [see R. 18, 19], which appears to ignore or dismiss evidence of Plaintiff's worsening PTSD symptoms, and never specifically mentions any of the medical opinions of treatment providers who noted otherwise.
For instance, on December 22, 2016, the VA found Plaintiff had a 70% disability rating due to circumlocutory speech; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; suspiciousness; depressed mood; disturbances of motivation and mood; impaired judgment; mild memory loss; chronic sleep impairment; difficulty in understanding complex commands; panic attacks more than once a week; difficulty in adapting to stressful circumstances; difficulty in adapting to work; stereotyped speech; difficulty in adapting to a worklike setting; circumstantial speech; anxiety; and difficulty in establishing and maintaining effective work and social relationships. [R. 214.]
In support of this determination, Dr. Michele Parnell ("Dr. Parnell") completed a PTSD disability benefits questionnaire on December 14, 2016, in conjunction with a Compensation and Pension examination request and found that Plaintiff had occupational and social impairments with reduced reliability and productivity. [R. 300.] Dr. Parnell noted that Plaintiff was employed with ABW Golf Carts but had started experiencing flashbacks and intrusive thoughts with certain smells; and he "reported problems with exaggerated startle, anxiety, panic attacks and anger at work." [R. 300.] He indicated he was trying "to keep everything inside to keep from acting out at work." [R. 300.]
Effective April 27, 2017, Plaintiff's disability rating was increased to 100% for PTSD due to forgetting names; occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood; suspiciousness; depressed mood; disturbances of motivation and mood; mild memory loss; forgetting recent events; persistent delusions; chronic sleep impairment; panic attacks more than once a week; persistent hallucinations; difficulty adapting to stressful circumstances; difficulty in adapting to work; difficulty in adapting to a worklike setting; anxiety; difficulty in establishing and maintaining effective work and social relationships; and forgetting directions. [R. 214.] Prior to this finding, on March 21, 2017, treatment notes by Dr. Mary Blackmon mention that Plaintiff complained he had been unable to leave his house much during the prior week, and that he had noticed increased depression, skipped a shower, and not been cleaning his house. [R. 413.] Treatment notes from Plaintiff's psychotherapy session with Dr. Diane Wininger, dated March 20, 2017, state that Plaintiff had reported increased isolative and avoidance behaviors since his last session, that he had been unable to leave his house, and had relayed feeling overwhelmed due to psychosocial stressors. [R. 417.] He had also reported experiencing increased irritability, anger, depressed mood and decreased motivation. [Id.]
During the his evaluation of the medical evidence, the ALJ found Plaintiff suffered from marked limitations in his ability to interact with others and moderate limitations in his concentration, persistence and pace. [R. 16.] While it appears the ALJ agreed with certain limitations found by the VA doctors who found Plaintiff 100% disabled due to PTSD, the Court is left to guess as to why the ALJ dismissed the remaining limitations found by the VA doctors, or whether the ALJ accepted the limitations and attempted to accommodate them in the RFC. The ALJ appears to suggest that Plaintiff's remaining limitations, as found by the VA doctors, were negated because he had a job and the "record fail[ed] to document any overall worsening of [his] condition following the alleged onset date." [R. 18.] Contrary to the ALJ's finding, however, the record clearly documents Plaintiff's increased difficulty in working in light of an increase in psychological symptoms, as outlined above. The fact that the ALJ failed to explain how he took these findings by the VA doctors into consideration in determining that substantial evidence supported deviating from giving the VA rating substantial weight warrants granting Plaintiff's request for remand.
Although the parties do not argue the issue, the Court notes that the ALJ's decision may also run afoul of the Fourth Circuit's decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015). See Salmon v. Colvin, No. 1:12-cv-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) (noting that "the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine . . . tasks or unskilled work") (internal quotation marks omitted). The ALJ should also address this issue on remand. --------
Remaining Allegations of Error
On remand the ALJ will be able to explain his consideration of the VA disability decision. Harris v. Asture, C/A No. 9:09-0028-HFF-BM, 2009 WL 5125215, at *4 (D.S.C. Dec. 28, 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). All of Plaintiff's remaining allegations of error should likewise be addressed by the ALJ on remand.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 21, 2019
Greenville, South Carolina