Opinion
No. 5:19-CV-87-FL
01-21-2020
JACK BENNEFIELD, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Jack W. Bennefield ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of his application for a period of disability and disability insurance benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. The court has carefully reviewed the administrative record and the motions and memoranda submitted by the parties. For the reasons set forth below, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #26] be granted, Defendant's Motion for Judgment on the Pleadings [DE #33] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for a period of disability and DIB on November 29, 2016, with an alleged onset date of May 1, 2015. (R. 17, 102, 192.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 17, 128-131, 136-140, 142.) A hearing was held on August 7, 2018, before Administrative Law Judge ("ALJ") Susan Preston, who issued an unfavorable ruling on November 5, 2018. (R. 17-40, 43-83.) On January 18, 2019, the Appeals Council denied Plaintiff's request for review. (R. 1-5.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. On March 7, 2019, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. 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).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. "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 [his] burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
III. ALJ's Findings
As a preliminary matter, the ALJ found Plaintiff meets the insured status requirements of the Social Security Act ("the Act") through December 31, 2021. (R. 19.) Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since May 1, 2015, the alleged onset date. (R. 19.) Next, the ALJ determined Plaintiff had the following severe impairments:
Degenerative Disc Disease; Degenerative Joint Disease of the Right Knee, status post Anterior Cruciate Ligament (ACL) Reconstruction/Revision and Meniscal Repair; Degenerative joint Disease of the Left Ankle, status post Brostrum Procedure; Bilateral ankle Calcaneal Enthesopathy; Degenerative Joint Disease, Bursitis and Tendonitis of the Right Shoulder; Migraine Headaches; Depression; Anxiety and Post-Traumatic Stress Disorder (PTSD).(R. 19-20.) The ALJ found Plaintiff's psoriasis, sleep apnea, hypertension, and obesity medically determinable but non-severe impairments. (R. 20.)
At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 21.) The ALJ analyzed Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.15 (trauma- and stressor-related disorders) and found that the requirements were not met. (R. 21-22.) Because migraines are not a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1, the ALJ considered whether Plaintiff's migraines medically equal Listing 11.02 (epilepsy). (Id.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform sedentary work, as defined in 20 CFR 404.1567(a), except that the claimant can occasionally push or pull with the right lower extremity. The claimant can frequently reach overhead with the right upper extremity. The claimant can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. The claimant can occasionally stoop, kneel, crouch, and crawl. The claimant can frequently work at unprotected heights and around moving mechanical parts. The claimant can occasionally interact with supervisors, coworkers, and the general public. Due to migraine headaches, the claimant would be off task an average of 10% of the workday. The claimant would need a sit/stand option every hour as needed.(R. 23-24.) At step four, the ALJ concluded that Plaintiff was unable to perform past relevant work as a Cable System Installer/Maintainer (R. 35-36.) At step five, the ALJ concluded, based on Plaintiff's age, education, work experience, and RFC, that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: addresser, document preparer, and surveillance system monitor. (R. 36, 40.) The ALJ concluded that Plaintiff was not disabled under the Act since May 1, 2015, the alleged onset date. (R. 40.)
IV. Plaintiff's Argument
Plaintiff raises a single argument on review: the ALJ erred by failing to give substantial weight to his disability ratings from the Department of Veterans Affairs ("VA"), in violation of Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012), and Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018). (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #27] at 7-11.) The Commissioner contends the ALJ's decision correctly applied relevant law and regulations and is supported by substantial evidence. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #34] at 6-8.) For the reasons discussed below, the undersigned agrees with Plaintiff and, therefore, recommends that the Commissioner's decision be remanded.
Although not binding on the Commissioner, disability decisions by other governmental agencies "cannot be ignored and must be considered" by the Commissioner in making a disability determination. SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). In Bird, the Fourth Circuit noted 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." Bird, 699 F.3d at 343. "Thus, . . . in making a disability determination, the SSA must give substantial weight to a VA disability rating" unless the record clearly demonstrates that a lesser weight is appropriate. Id. In certain cases, deviation may be appropriate due to the different standards employed by the agencies in evaluating a claimant's disability. Id. ("[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability . . . 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."). In Woods, the Fourth Circuit further specified that "in order to demonstrate it is appropriate to accord 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." Woods, 888 F.3d at 692 (internal quotation marks omitted).
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 a VA disability rating for this reason would eviscerate the presumptive standard established in Bird. See Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D.N.C. Aug. 10, 2015) (discussing the Commissioner's analysis of an Office of Personnel Management ("OPM") disability rating and noting "the reasons cited by the Commissioner—different rules and different standards—would apply to every case and thus cannot be relied upon to avoid scrutiny of the OPM's decision under Bird's new presumptive standard"), mem. & recommendation adopted, 2015 WL 5089060 (E.D.N.C. Aug. 27, 2015).
In a twenty-eight-page decision by the VA on May 28, 2016, Plaintiff's overall or combined service-connected disability rating was determined to be 90%, effective May 18, 2016. (R. 211-229, 239-66.) Specifically, the VA assessed the following disability ratings: 50% for posttraumatic stress disorder with insomnia disorder (R. 221); 30% for painful scars left elbow, left ankle and right knee (R. 213); 20% for dominant right shoulder strain (R. 213); 20% for non-dominant left shoulder strain (R. 215); 10% for bilateral tinnitus (R. 216); 10% for temporomandibular joint disorder (R. 217-18); 10% for cervical spine strain (R. 220); 10% lumber spine degenerative disc disease with thoracic strain (R. 215); 10% for right hip strain, limitation of flexion (R. 221); 10% for left hip strain, limitation of flexion (R. 214); 10% for right knee internal derangement (R. 216-17); 10% for left knee strain (R. 217); and 10% for left ankle strain (R. 219). In its disability decision, the VA listed the evidence it considered, including VA medical and treatment records and evaluation forms, and made findings to support its disability ratings.
On January 30, 2018, Plaintiff was notified his combined service-connected evaluation was increased to 100%, making Plaintiff "totally and permanently disabled due solely to [his] service-connected disabilities." (R. 200.) These disabilities, and the evidence considered by the VA, overlap significantly with Plaintiff's Social Security claim.
The ALJ acknowledged that Plaintiff's VA rating had increased from 90% to 100%; however, the ALJ did not give substantial weight to the VA decision. (R.33.) Rather, the only discussion of Plaintiff's VA disability rating is as follows:
The undersigned recognizes that the Department of Veterans Affairs (VA) assigned the claimant a combined service-connected disability rating of 100%, and previously assigned the claimant a rating of 90%. The undersigned gives partial weight to the Department of Veterans Affairs['] determination. The undersigned recognizes that the
claimant's disability ratings were based on an evaluation of the claimant's medical records and findings from clinical physical and mental status examinations. The undersigned utilized the VA records and examinations when evaluating the claimant's symptoms. However, the disability determination processes utilized by VA and the Social Security Administration are fundamentally different. Department of Veterans Affairs does not make a function-by-function assessment of an individual's capacities (i.e., determine the claimant's residual functional capacity) or determine whether the claimant is able to perform either his past relevant work or other work that exists in significant numbers in the national economy as is required by the Regulations. Thus, a disability rating by the Department of Veterans Affairs is of little probative value in these proceedings.(R. 33 (citations omitted).) The ALJ correctly notes that there exist differences between VA disability ratings and Social Security disability determinations and that the Commissioner is not bound by the VA's disability rating. But the ALJ fails to acknowledge the similarities between the VA disability rating and a Social Security disability determination—similarities explicitly pointed out by the Fourth Circuit in Bird. Other circuit courts have discussed the similarities as well. See, e.g., Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).
Moreover, the ALJ's reasoning for discounting the VA's ratings because the standards are fundamentally different from the SSA's "flies in the face of the Fourth Circuit's assessment in Bird that they are basic similarities" and these differences are insufficient to discredit the VA disability ratings. Allen v. Berryhill, No. 5:17-CV-543-D, 2019 WL 442162, at *6 (E.D.N.C. Jan. 16, 2019), mem. & recommendation adopted, 2019 WL 441171 (E.D.N.C. Feb. 4, 2019) (citing McNeill v. Berryhill, No. 5:15-CV-646-KS, 2017 WL 1050105, at *3 (E.D.N.C. Mar. 20, 2017)).
From 2016 to 2018, Plaintiff's combined service-connected disability had increased from a VA rating of 90% to 100%, and Plaintiff was considered totally and permanently disabled based on Plaintiff's service-connected disabilities. (R. 200, 211-224.) Under VA regulations, this means that Plaintiff was found to have "an[] impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340; see also 38 C.F.R. § 4.15 ("[P]ermanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.").
The ALJ did not discuss her reasons for deviating from the requirement that she afford the VA rating substantial weight with persuasive, specific, valid reasons. Cf. Johnson v. Colvin, No. 5:13-CV-509-FL, 2014 WL 4636991, at *8-10 (E.D.N.C. Sept. 16, 2014) (approving ALJ's explanation as to why he was not affording a VA disability rating substantial weight). The ALJ's statement that she awarded the VA rating "partial weight" and "utilized the VA records and examinations when evaluating the claimant's symptoms" lacks sufficient specificity to demonstrate that the ALJ complied with Bird. "It is not readily apparent what this statement actually means, and the ALJ fails to make clear what portions [s]he found credible or not credible and why, frustrating meaningful review." Pridgen v. Colvin, No. 4:15-CV-95-F, 2016 WL 4047058, at *4 (E.D.N.C. June 30, 2016), mem. & recommendation adopted, 2016 WL 4046763 (E.D.N.C. Jul. 27, 2016). This lack of specificity in the ALJ's decision to deviate from affording the VA substantial weight frustrates meaningful review.
A reviewing court may not "reweigh [the] evidence, make credibility determinations, or supplant the ALJ's judgment with our own." Sharp v. Colvin, 660 F. App'x 251, 259 (4th Cir. 2016) (citing Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005)). The court is unable to meaningfully review the ALJ's decision without further explanation of the ALJ's deviation from the standard of assigning substantial weight to the VA's rating.
The fact that the ALJ erred in this aspect of her decision does not conclude the court's inquiry because the error must be harmful to warrant remand. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009); Garner v. Astrue, 436 F. App'x. 224, 225 n* (4th Cir. 2011). The ALJ's error is not rendered harmless because the evaluation of Plaintiff's total and permanent disability finding from the VA could reasonably be expected to have produced a different outcome in Plaintiff's RFC determination and, potentially, the ultimate issue of disability. See Suggs v. Astrue, No. 4:11-CV-128-FL, 2013 WL 466406, at *4 (E.D.N.C. Feb. 7, 2013) ("Errors are harmless in Social Security cases when it is inconceivable that a different administrative conclusion would have been reached absent the error." (quoting Christian v. Comm'r of Soc. Sec., No. 2:08-CV-47, 2009 WL 2767649, at *6 (W.D. Va. Aug. 25, 2009))). Here, a total finding of disability from the VA could reasonably affect the ALJ's step-four finding. Accordingly, the undersigned recommends the case be remanded.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #26] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #33] be DENIED, and the case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
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 February 4, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or 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 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.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 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, a party's failure to file written objections by the foregoing deadline may 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).
This 21st day of January 2020.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge