Opinion
5:17-CV-543-D
01-16-2019
SHARON ALLEN, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Sharon Allen ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 18, 23. Both filed memoranda in support of their respective motions. D.E. 19, 24. 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 12 Dec. 2018 Text Ord. 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.
I. CASE HISTORY
Plaintiff filed an application for DIB on 3 May 2013, alleging a disability onset date of 6 April 2013. Transcript of Proceedings ("Tr.") 11. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 11. On 26 October 2016, a hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by counsel, and a vocational expert testified. Tr. 11, 31-85. On 28 November 2016, the ALJ issued a decision denying plaintiff's application. Tr. 11-25.
Plaintiff timely requested review by the Appeals Council. Tr. 184, 186. On 22 August 2017, the Appeals Council denied the request for review. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 26 October 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See Mot. to Proceed In Forma Pauperis ("IFP") (D.E. 1); Ord. Denying IFP Mot. (D.E. 4); Compl. (D.E. 5).
The versions of the regulations and Social Security rulings under which the court is reviewing the ALJ's decision are those applicable to plaintiff's claim, although several have subsequently been modified.
II. STANDARDS FOR DISABILITY
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); 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). 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." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step. If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.
See also 20 C.F.R. § 404.1545(a)(1). This regulation is the counterpart for DIB to the above-cited regulation, which relates to Supplemental Security Income ("SSI"). The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.
See also 20 C.F.R. § 404.1545(a)(2).
See also 20 C.F.R. §§ 404.1520(a)(4)(v); 404.1560(c)(2); 404.929.
III. ALJ'S FINDINGS
Plaintiff was 50 years old on the alleged disability onset date and 54 years old on the date of the hearing and issuance of the ALJ's decision. Tr. 24 ¶ 7; 36. The ALJ found that she has at least a high school education (Tr. 24 ¶ 8) and past relevant work as a program analyst, logistics specialist/logistics technician, and maintenance and material manager (Tr. 23 ¶ 6).
Plaintiff obtained a master's degree. Tr. 17 ¶ 5 (citing plaintiff's testimony at Tr. 36-37).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 6 April 2013, the alleged disability onset date. Tr. 13 ¶ 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 joint disease, status-post surgeries of the left knee; carpal tunnel syndrome; hypertension; hiatal hernia; irritable bowel syndrome; migraines; nonobstructive coronary artery disease; cardiac-related syncope; degenerative disc disease; depression/major depressive disorder; and post-traumatic stress disorder ("PTSD"). Tr. 13 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 14 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of work at the light exertional level, as follows:
After careful consideration of the entire record, the undersigned finds the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b), with the following provisos: the claimant can occasionally climb ramps and stairs, but no climbing ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, and/or crouch, but no crawling. The claimant can occasionally push, pull and/or operate foot controls with the lower extremities. The claimant must avoid
concentrated exposure to workplace hazards, such as dangerous moving machinery and unprotected heights. The claimant can understand and perform simple, routine, repetitive tasks, and she can maintain concentration, persistence, and pace to remain on task for 2 hour periods over a typical 8-hour workday, in a low stress setting, further defined to mean no production-pace or quota-based work, rather she requires a goal-oriented job primarily dealing with things rather than people, with no more than occasional social interaction with supervisors and/or co-workers, no work with the public as part of job, such as sales or negotiation, though incidental or casual contact with the public as it might arise is not precluded.Tr. 17 ¶ 5.
This regulation defines light work was work involving "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "L-Light Work," 1991 WL 688702; 20 C.F.R. § 404.1567 (providing that light work and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT).
Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform her past relevant work. Tr. 23 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of housekeeper, clerical assistant, and inspector/hand packager. Tr. 24-25 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 6 April 2013, through the date of the decision, 28 November 2016. Tr. 25 ¶ 11.
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded, or in the alternative, that the case should be remanded for a new hearing on the grounds that the ALJ erred in not giving proper weight to the Department of Veterans Affairs ("VA") disability rating of plaintiff and not addressing the opinions of an examining VA psychologist. Because the issue of the ALJ's evaluation of the VA disability ratings is dispositive of this appeal, the court's analysis will focus on it.
VI. ALJ'S EVALUATION OF VA RATING
A. Applicable Legal Principles
In Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012), the Fourth Circuit ruled that the Social Security Administration ("SSA") must accord substantial weight to a VA disability rating. Bird, 699 F.3d at 343. The court based its ruling on the similarities in the disability programs of the two agencies:
The assignment of at least some weight to a VA disability determination reflects the fact that both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability. McCartey [v. Massanari], 298 F.3d [1072] at 1076 [9th Cir. 2002], "Both programs evaluate a claimant's ability to perform full-time work in the national economy on a sustained and continuing basis; both focus on analyzing a claimant's functional limitations; and both require claimants to present extensive medical documentation in support of their claims." Id.Id. The court, though, also recognized that exceptions to attribution of substantial weight may be appropriate in particular cases: "[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability, and because the effective date of coverage for a claimant's disability under the two programs likely will vary, an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.
. . . . Like the VA, the SSA was required to undertake a comprehensive evaluation of [the 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. Thus, we hold that, in making a disability determination, the SSA must give substantial weight to a VA disability rating.
In Woods v. Berryhill, the Fourth Circuit ruled that in order to demonstrate that it is "appropriate" under Bird to give less than substantial weight to the disability ratings of an agency other than the SSA, an ALJ must give "persuasive, specific, valid reasons for doing so that are supported by the record." 888 F.3d 686, 692 (4th Cir. 2018) (internal quotation marks omitted). Although the disability decision before the court in Woods was from a state agency, the court relied on cases from other circuits involving VA disability ratings and was expressly interpreting the standard established in Bird, which, as discussed, involved a VA disability decision. See id. (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (described parenthetically by the Fourth Circuit as "describing standard for VA decisions"); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (per curiam) (described parenthetically by the Fourth Circuit as "explaining that ALJs need not give great weight to VA disability determinations 'if they adequately explain the valid reasons for not doing so'"). If an ALJ fails to adequately explain his attribution of less than substantial weight to VA disability ratings, meaningful review is precluded and the case must be remanded for further administrative proceedings. See Woods, 888 F.3d at 692-93 (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)).
B. Factual Background
A VA letter dated 2 December 2009 purporting to transmit to plaintiff a disability rating decision stated that the VA determined her to have the following disability ratings with respect to four impairments: depression (10%); osteoarthritis of the cervical spine (10%); lumbar strain with spurring (40%); and left knee, status-post meniscus and anterior cruciate ligament repair with arthrofibrosis and limitation of flexion (20%). Tr. 221 (Ex. 10D, p. 5). The letter stated her combined disability rating was 90%. Tr. 222 (Ex. 10D, p. 6).
The rating decision appears to be the decision at Tr. 225-32 (Ex. 11D, pp. 1-8), which is dated 30 November 2009.
A subsequent VA rating decision transmittal letter to plaintiff bearing a stamped date that appears to be 19 July 2011 states that her rating for major depressive order was being increased from 10% to 70%. Tr. 218 (Ex. 10D, p. 2). It also stated that her combined rating was now 100%. Tr. 218 (Ex. 10D, p. 2).
A 28 November 2014 letter transmitting to plaintiff a rating decision based on an application by her purportedly received on 5 March 2014 stated that the disability ratings she then had with respect to five impairments were being continued. Tr. 256 (Ex. 12D, p. 2). These included the four impairments previously identified plus gastroesophogeal reflux disease ("GERD"). Tr. 256 (Ex. 12D, p. 2). In sum, the ratings listed were: major depressive disorder (70%); osteoarthritis of the cervical spine (10%); lumbar strain with spurring (40%); left knee, status-post meniscus and anterior cruciate ligament repair with arthrofibrosis and limitation of flexion (20%); and GERD (10%). Tr. 256 (Ex. 12D, p. 2). All but the first page of the rating decision being transmitted accompanied the letter. See Tr. 258-63 (Ex. 12D, pp. 4-9). Based on the 19 July 2011 letter, these individual ratings would have equated to a combined rating of 100%.
C. Analysis
The ALJ. gave "partial weight" to the VA's disability ratings of plaintiff. Tr. 21 ¶ 5. He stated:
The undersigned also considered the [VA] disability rating. In April 2013, the VA assessed that the claimant had a 100% disability rating due to the following impairments: major depressive disorder (70%); osteoarthritis of the cervical spine (10%); lumbar strain with spurring (40%); left knee, status-post meniscus and anterior cruciate ligament repair with arthrofibrosis and limitation of flexion (20%); and GERD (10%) (Exhibits 10D; 12D). The undersigned assigns partial weight to these ratings, as the medical evidence supports a finding these impairments more than minimally limit her ability to perform work activity. However, the undersigned notes the standards used by the VA in determining disability are completely different tha[n] those used by the [SSA]; therefore, the undersigned is not bound by the findings set forth in the claimant's Rating Decision (20 CFR 404.1504 and 416.904; SSR 06-03p), even though they can be entitled to substantial weight, if supported by the totality of the record. However, VA ratings are based on limited information, and certainly do not take into account the factors required by the Social Security disability sequential evaluation; and, the individual who rates the claimant's conditions for the VA is not a medical professional and is not privy to the longitudinal record before the undersigned. Furthermore, the undersigned notes an opinion on whether an individual is disabled goes to an issue reserved to the Commissioner and therefore cannot be given special significance (20 CFR
404.1527(e) and 416.927(e); SSR 96-5p). The undersigned finds other record evidence more persuasive.Tr. 21-22 ¶ 5. By his reference to April 2013, for which he cites Exhibits 10D and 12D, the ALJ appears to be referring to his finding as to the VA ratings of plaintiff as of that date, the month of her alleged onset of disability, as opposed to a rating decision issued by the VA during that month, for which no citation is provided.
The contents of Exhibit 10D are the 2 December 2009 and 19 July 2011 letters discussed in the preceding Factual Background section. In addition to the 28 November 2014 VA letter and associated rating decision discussed in the Factual Background section, Exhibit 12D contains a letter from plaintiff's counsel transmitting this VA letter to the SSA. Ex. 12D, p. 1 (Tr. 255).
Plaintiff contends that the ALJ erred in not giving the VA combined rating, and thereby implicitly the individual ratings making up the combined rating, substantial weight pursuant to Bird. The court agrees that the ALJ erred. While Bird allows exceptions from the presumptive allocation of substantial weight to VA ratings, the ALJ falls far short of providing a sufficient explanation as to why such an exception is warranted.
One set of reasons cited by the ALJ for discounting the VA ratings consists simply of recitations of differences between the standards used by the VA and SSA in the evaluation of disability claims: "the standards used by the VA in determining disability are completely different tha[n] those used by the [SSA]"; "VA ratings . . . certainly do not take into account the factors required by the Social Security disability sequential evaluation"; and "the individual who rates the claimant's conditions for the VA is not a medical professional." Tr. 21-22 ¶ 5. If these differences in themselves were deemed sufficient to discount VA disability ratings, the presumptive standard under Bird that such decisions should be accorded substantial weight would be gutted. See, e.g., McNeill v. Berryhill, No. 5:15-CV-646-KS, 2017 WL 1050105, at *3 (E.D.N.C. 20 Mar. 2017) ("General differences between VA disability ratings and Social Security disability determinations are not, however, a sufficient basis for discrediting VA disability ratings. Such differences exist in all cases; and allowing an ALJ to discount VA disability ratings for this reason would, therefore, eviscerate the presumptive standard established in Bird." (citing Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D.N.C. 10 Aug. 2015))), mem. & recomm. adopted, 2015 WL 5089060 (27 Aug. 2015).
Moreover, the ALJ's determination that the VA's standards are "completely different" from those used by the SSA flies in the face of the Fourth Circuit's assessment in Bird that they share basic similarities. Tr. 21 ¶ 5. The ALJ's further determination that the "VA ratings . . . certainly do not take into account the factors required by the Social Security disability sequential evaluation" also ignores the similarities in standards held in Bird to exist. These determination are erroneous as a matter of law.
Another group of reasons given by the ALJ for discounting the VA's ratings, like his descriptions of purported differences in VA and SSA disability standards, are not unique to this case, but would apply to any VA rating. These reasons are that "the [ALJ] is not bound by the findings set forth in the claimant's Rating Decision (20 CFR 404.1504 and 416.904; SSR 06-03p)"; "VA ratings are based on limited information"; and "an opinion on whether an individual is disabled goes to an issue reserved to the Commissioner and therefore cannot be given special significance (20 CFR 404.1527(e) and 416.927(e); SSR 96-5p)." Tr. 21-22 ¶ 5. Indeed, it can plausibly be said that most, if not all, Social Security disability decisions are based on limited information, rather than all conceivably pertinent information.
The ALJ also noted that the VA decision maker was "not privy to the longitudinal record before the undersigned." Tr. 22 ¶ 5. That is a proper basis for discounting VA ratings. Moreover, substantial evidence appears to support this determination. For example, the ALJ had available to him exhibits containing records post-dating the rating decision (Tr. 258-63) that was transmitted with the 28 November 2014 VA letter (Tr. 256-57) and therefore ostensibly issued in or around November 2014.See Exs. 15F to 20F. Nonetheless, the ALJ does not specify the particular records to which he refers or explain how these records merit discounting the VA ratings.
Oddly, as indicated, the only date the ALJ references in discussing the VA ratings is:the month of the alleged onset of disability, April 2013, even though the ratings applied ostensibly into November 2014, as is evident from the records the ALJ cites. See Tr. 21 ¶ 5 (citing Ex. 12D). On remand, the Commissioner would be well served by making clear her understanding of the time period to which the VA ratings apply, particularly if she again relies on the longitudinal record in assessing the weight due the VA ratings.
The remaining reason given by the ALJ is that he found other record evidence more persuasive. Tr. 22 ¶ 5. He, however, fails to specify the evidence to which he refers. Moreover, this finding is tainted by the ALJ's misunderstanding of the standard applicable to evaluation of VA ratings. This misunderstanding is evident from his failure to recognize the similarities in VA and SSA disability standards, as discussed. The ALJ, in fact, articulates the improper standard he is apparently applying: "[VA ratings] can be entitled to substantial weight, if supported by the totality of the record." Tr. 21 ¶ 5. Of course, under Bird and Woods, the VA ratings are presumptively entitled to substantial weight absent a satisfactory showing to the contrary. In finding other evidence more persuasive, based on his misunderstanding of the standard properly applicable to VA ratings, the court cannot dismiss the possibility, indeed the likelihood, that he understated the weight properly accordable the VA ratings.
As indicated, the ALJ found that the VA ratings were due partial weight because "the medical evidence supports a finding these impairments more than minimally limit her ability to perform work activity." Tr. 21 ¶ 5. This amounts to a determination that these impairments are severe, as the ALJ's own decision makes clear. See Tr. 12 ("An impairment or combination of impairments is 'not severe' when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work (20 CFR 404.1521; Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p)."). One such impairment is GERD. Tr. 21 ¶ 5. The ALJ, though, did not find plaintiff's GERD to be a severe impairment at step two of the sequential analysis. Nor did he otherwise discuss plaintiff's GERD in his decision (aside from a passing reference to heartburn (Tr. 19 ¶ 5)). This inconsistency needs to be avoided in the remand proceedings.
There are certainly factors that tend to enhance the weight properly accordable to the VA ratings, including the combined rating. For example, the three most disabling impairments found by the VA are the same as or very similar to impairments the ALJ found plaintiff to have, namely, major depressive disorder, lumbar strain with spurring, and left knee, status-post meniscus and anterior cruciate ligament repair with arthrofibrosis and limitation of flexion. Compare Tr. 256 with Tr. 13 ¶ 3. Moreover, there is an overlap between the evidence considered by the VA in its ratings and the evidence considered by the ALJ. Compare Tr. 258 (listing evidence considered by VA in rating decision with 28 Nov. 2014 letter) with Exs. 2F, 7F, 11F, 13F.
The court concludes that the failure by the ALJ to adequately explain his attribution of less than substantial weight to the VA ratings precludes meaningful review of his decision and requires remand. See Woods, 888 F.3d at 692; Radford, 734 F.3d at 295.
Independent of this consideration, the failure by the ALJ to properly evaluate the VA's ratings was not harmless. See, e.g., Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)); Huffman v. Colvin, No. 1:10CV537, 2013 WL 4431964, at *4 & n. 7, 7 (M.D.N.C. 14 Aug. 2013). Proper assessment of the VA's evaluation of plaintiff could have led to a different outcome in various aspects of the ALJ's analysis, including his assessment of plaintiff's statements regarding her impairments, which he discounted (Tr. 18 ¶ 5) and his determination of plaintiff's RFC. The ALJ included significant limitations in his RFC determination while giving the VA ratings partial weight. The court cannot dismiss the possibility that the determination could be materially more restrictive if the VA ratings were given substantial weight. Remand of this case is therefore required on this additional ground of harmful error.
As noted, the second ground for plaintiff's appeal was the ALJ's failure to address the opinions of VA psychologist Jacky Aron, Ph.D. (Tr. 765-71). The Commissioner argues that the ALJ did not need to discuss this evaluation because, conducted in 2009, it preceded by several years the alleged disability onset date. On remand, the Commissioner should expressly address Dr. Aron's evaluation to eliminate not doing so as a potential issue in the remand proceedings.
VII. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 18) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 23) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 30 January 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file writtenobjections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 16th day of January 2019.
/s/_________
James E. Gates
United States Magistrate Judge