C/A No. 2:17-cv-02711-RMG-MGB (D.S.C. Sep. 5, 2018)

C/A No. 2:17-cv-02711-RMG-MGB


KENDALL L. SMALL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


Plaintiff Kendall L. Small ("Plaintiff"), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.


Plaintiff was 29 years old on his alleged disability onset date of August 12, 2011. (R. at 27.) Plaintiff claims disability due to Legg Perthes (joint deformity). (Dkt. No. 12 at 1-2.) Plaintiff has past relevant work as an industrial truck mechanic. (Id. at 2.)

Plaintiff filed an application for DIB and SSI on August 15, 2011 (R. at 109.) His application was denied initially and on reconsideration. (R. at 109.) After a hearing before an Administrative Law Judge ("ALJ") on March 14 2013, the ALJ issued a decision on April 17, 2013, in which the ALJ found that Plaintiff was not disabled. (R. at 109-118.) The Appeals Council vacated the ALJ's decision based on new evidence from the Department of Veterans Affairs submitted after the ALJ issued his decision. (R. at 124-125.) The ALJ held a subsequent hearing on March 26, 2015. (R. at 18.) On May 18, 2015, the ALJ issued a decision in which he again found Plaintiff was not disabled. (R. at 18-29.) The Appeals Council denied Plaintiff's request for review, (R. at 9-12), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.

In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2016.

(2) The claimant did not engage in substantial gainful activity since August 12, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

(3) Through the date last insured, the claimant had the following severe impairments: spondylosis; and degenerative joint disease of the left hip status post surgery (20 CFR 404.1520(c) and 416.920(c)).

(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours each in an 8-hour workday. The claimant can frequently balance and frequently climb ramps and stairs. He can occasionally stoop, kneel, crouch, and crawl; however, he can never climb ladders, ropes or scaffolds.

(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

(7) The claimant was born on February 25, 1982 and was 29 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

(9) Transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules support a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

(11) The claimant has not been under a disability, as defined in the Social Security Act, from August 12, 2011, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(R. at 18-29.)


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 in the Act 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" twelve months. See 42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).

A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Grant, 699 F.2d at 191. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. See id. at 191-92.

The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.

Smith v
. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).

Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).


Plaintiff contends that the ALJ erred in failing to find him disabled. More specifically, Plaintiff alleges that "[t]he ALJ committed reversible error in failing to properly consider [Plaintiff's] 100 percent VA disability rating." (Dkt. No. 12 at 27.) Plaintiff also alleges that that "[t]he ALJ's reasons for according 'little weight' to the opinion" of Plaintiff's treating physician "are not supported by substantial evidence." (Id. at 18.) Finally, Plaintiff alleges that "[t]he ALJ reversibly erred by failing to properly assess [Plaintiff's] credibility." (Id. at 30.) The undersigned considers Plaintiff's arguments below.

A. Consideration of VA Disability Rating

Plaintiff argues that the ALJ failed to properly weigh the Department of Veterans Affairs' ("VA") finding that Plaintiff was 100 percent disabled. (Dkt. No. 12 at 27; R. at 531.) On June 11, 2013, the VA found that Plaintiff had a combined disability rating of 90 percent as of August 31, 2011. (R. at 530-531.) The VA found that 70 percent of that rating was attributable to Plaintiff's service-connected condition of "Legg-calve perthes disease of the left hip[,] status post hip total hip arthroplasty with surgical scar and left hip strain." (R. at 529.)

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. See Robinson v. Colvin, No. 6:15-cv-1786-TMC-KFM, 2016 WL 3617971, at *9-11 (D.S.C. June 11, 2016), adopted by 2016 WL 3595564 (July 5, 2016). The ALJ should sufficiently explain the consideration given to a VA disability decision. Id.; Bird v. Comm'r, 699 F.3d 337, 343-44 (4th Cir. Nov. 9, 2012) ("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 v. Comm'r, 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. 699 F.3d at 344; see also 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, remanded for the ALJ to follow the method prescribed in Bird); Gannon v. Colvin, No. 9:15-cv-3250-RMG-BM, 2016 WL 5339698, at*6-7 (D.S.C. Aug. 22, 2016) adopted by 2016 WL 5338504 (Sept. 21, 2016) (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 remanded for a more proper weighing pursuant to the methodology outlined in Bird); Wood v. Colvin, No. 9:12-cv-3570-MGL, 2014 WL 607707, at *4 (D.S.C. Feb. 18, 2014) (remanding the case so the ALJ could properly discuss the VA disability rating and whether deviation was appropriate under the standard in Bird); Cobbs v. Colvin, No. 1:12-cv-3472-JMC-SVH, 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 the case at bar, the ALJ committed the following paragraph to discussing the VA disability rating:

Additionally, I considered the August 2011 opinion of the Department of Veteran Affairs that the claimant was assessed to have combined service connected disabilities rating of 90% comprised of 70% for hip prosthesis, 10% for lumbosacral or cervical strain, 10% for limited flexion of knee, 10% for limited flexion of thigh, 0% for shortening of bone in lower leg, 0% for limited flexion of knee, and 0% for scars. The Department of Veteran Affairs paid the claimant at a rate of 100% because they found the claimant unemployable due to his service-connected disabilities. (Exhibits 14F-17F). I note that the determination of whether an individual is disabled is reserved to the Commissioner pursuant to 20 C.F.R. §§ 404.1527 and 416.927. Statements that a claimant is disabled are not given any special significance on the issue of disability. I also note that the Social Security Administration has guidelines, regulations, and definitions for disability findings, which are different than those followed by the Department of Veteran's affairs. Following thorough review of this opinion by the Department of Veterans Affairs, I find that it offers only limited insight regarding the claimant's medical condition and pain, as such findings are generally inconsistent with the objective findings upon examination. In November 2011, the claimant did not use an ambulation-assisting device. In August 2013, the claimant ambulated with a normal gait without an assistive device despite his left hip prosthesis and spondylosis. Similarly, the claimant's February 2015 musculoskeletal examination was normal. (Exhibit 17F).

(R. at 27.)

As an initial matter, the undersigned concludes that the ALJ failed to comply with Bird. There is no indication that the ALJ's analysis started from an assumption that the VA rating decision was entitled to "substantial weight." Bird, 699 F.3d at 343. Rather, it appears that the ALJ started from the nearly opposite assumption, as he began his analysis of the VA rating decision by noting that "[s]tatements that a claimant is disabled are not given any special significance on the issue of disability." (R. at 27.) See McClora v. Colvin, 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"). The ALJ also bases his analysis on the fact that "the Social Security Administration has guidelines, regulations, and definitions for disability findings, which are different than those followed by the Department of Veteran's affairs." (R. at 27.) Such reasoning fails to comply with Bird. See Hildreth v. Colvin, No. 1:14-cv-660, 2015 WL 5577430, at *3 (M.D.N.C. Sept. 22, 2015) ("[C]iting to 'different rules and different standards' as a rationale to give less than substantial weight to a VA disability determination is not enough, because such a rationale would apply to every case, and thus cannot clearly demonstrate a reason for departing from the Bird presumption."). In short, the ALJ's analysis does not reflect the substantial weight that is the starting point in Bird.

The Commissioner, however, argues that the Seventh Circuit opinion, Bird v. Berryhill, 847 F.3d 911 (7th Cir. 2017), supports the ALJ's analysis of the VA rating decision. In this different Bird decision, the claimant argued that the VA's rating decision that he was 70 % disabled and unemployable "conclusively establishes that he is disabled." 847 F.3d at 913. The Court explained that the VA rating decision did not conclusively establish that the claimant was entitled to SSA benefits. Id. It stated, however, that "[s]uch a finding when made is practically indistinguishable from the SSA's disability determination, which asks whether a medically determinable impairment prevents the claimant from engaging in past relevant work or any substantial gainful work that exists in the national economy." Id. While the Court noted "differences in how the agencies evaluate claims," it did not find that the ALJ may disregard a VA rating decision based upon these differences. Id. Thus, the Commissioner's reliance on Bird v. Berryhill is misguided.

In a footnote, the Commissioner cites the January 2017 amendments to 20 C.F.R. §§ 404.1504, 416.904, applicable to claims filed on or after March 27, 2017. (Dkt. No. 14 at 17 n.2.) Plaintiff's disability claim was filed well before the amendments' applicable time period, and the January 2017 amendments are therefore irrelevant to this matter.

In addition, the ALJ's brief consideration of the "inconsistent . . . objective findings" in the record do not indicate that his decision to give little weight to the VA disability determination was supported by substantial evidence. (R. at 27.) The ALJ points to a few specific parts of the record as inconsistent with a finding of disability. First, the ALJ refers to a consultative examination performed at the request of the Commissioner on November 9, 2011, remarking upon Plaintiff's non-use of an ambulation-assisting device. (R. at 27, 426-430.) During this examination, Dr. Adebola Rojugbokan, M.D., interviewed Plaintiff regarding his condition. In reviewing Plaintiff's systems with him, Dr. Rojugbokan stated Plaintiff complained "about backaches," "swelling and redness especially in the distal extremities," "tenderness on the hip," "weakness," and "limitation in the range of motion of the back." (R. at 428.) Upon examination, Dr. Rojugbokan found that "[i]nspection of the left hip showed that the patient has an 18-cm wellhealed surgical scar on the lateral aspect of the left hip" with "slight tenderness on palpation. (R. at 429.) He also reported that Plaintiff "seems to have a left leg, which is shorter than the right leg," and "walked with a slightly abnormal gait as [he] tend[s] to favor the left hip" but "did not have any kind of assistive or ambulating device." (R. at. 429-430.)

The ALJ only cites to Exhibit 17F in his analysis of the VA rating decision (R. at 27); however, his reference to Plaintiff's non-use of an ambulation-assisting device in November 2011 refers to the aforementioned consultative examination, Exhibit 8F. (R. at 429.) --------

The ALJ also cites to a physical examination from August 12, 2013, documenting Plaintiff's "normal gait and balance." (R. at 27, 574.) However, in this same examination, Plaintiff was referred to an orthopedist for his leg length discrepancy, because Plaintiff "has noticeable limb length discrepancy as a result [of] lengthening of left leg." (R. at 559, 572.) A "lower extremity bone length study" was recommended. (R. at 572.)

Finally, the ALJ refers to "normal" musculoskeletal examination in February 2015. (R. at 27.) This February 2015 examination was an emergency treatment record at the VA for chest pain Plaintiff had experienced since December 2014. (R. at 561.) The examination focused on Plaintiff's cardiac impairment and, therefore, the musculoskeletal exam was limited to "No body tenderness, crepitus, or deformity." (R. at 564.) Importantly, the medical notes from this examination summarized Plaintiff's medical history to include, since March 13, 2012, arthralgia of the hip with pain on rotation and pain in the groin; knee arthalgia; and pain in the joint involving the ankle and foot. (R. at 561.)

The above records do not support the ALJ's finding that the VA rating decision "offers only limited insight regarding the claimant's medical condition and pain." (R. at 27.) Without more analysis from the ALJ, the undersigned is unable to determine if the little weight given to the VA disability determination was supported by substantial evidence. In addition, as explained above, the ALJ's analysis of the Plaintiff's VA disability rating does not meet the requirements set forth in Bird. Therefore, the undersigned recommends that the Commissioner's findings be reversed and remanded for a more detailed and proper weighing of Plaintiff's VA disability rating pursuant to the methodology outlined in Bird. See, e.g., Robinson, 2016 WL 3617971, at *9-11; Gannon, 2016 WL 5339698, at*6-7; Wood, 2014 WL 607707, at *4; Cobbs, 2014 WL 468928, at *8-9.

B. Remaining Allegations of Error

In light of the undersigned's recommendation that this matter be remanded for further consideration as discussed above, the Court need not address the remaining errors alleged by Plaintiff as they may be rendered moot on remand. The undersigned notes, however, that the ALJ's assessment of the VA ratings may impact the RFC determination. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by Plaintiff. See Gannon, 2016 WL 5339698, at *7, (remanding to properly assess claimant's VA rating and noting that, "with respect to any remaining claims of error asserted by the Plaintiff, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim").


It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.





September 5, 2018

Charleston, South Carolina