Opinion
5:18-CV-503-D
11-15-2019
QUINCY JAMES, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Quincy James ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew M. Saul ("Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 18, 20. Both filed memoranda in support of their respective motions. D.E. 19, 21. 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 D.E. 22; 15 July 2019 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 10 March 2017, alleging a disability onset date of 1 December 2016. Transcript of Proceedings ("Tr.") 25. The application was denied initially and upon reconsideration, and a request for a hearing was timely tiled. Tr. 25. On 2 November 2017, a hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by a non-attorney representative, and a vocational expert testified. Tr. 25, 75-109. On 20 April 2018, the ALJ issued a decision denying plaintiff's application. Tr. 25-36.
Plaintiff timely requested review by the Appeals Council. Tr. 219. On 20 August 2018, the Appeals Council denied the request for review (Tr. 1), after finding that additional evidence submitted by plaintiff (see Tr. 11-21; 41-74) either "does not show a reasonable probability that it would change the outcome of the decision" or "does not relate to the period at issue" (Tr. 2). At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. On 24 October 2018, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See D.E. 1 (Mot. to Proceed In Forma Pauperis ("IFP")); D.E. 5 (Ord. Denying IFP Mot.); D.E. 6 (Compl.).
The court is reviewing the ALJ's decision under the versions of the regulations and Social Security rulings applicable to plaintiff's claim in this appeal, although several are subject to modifications that subsequently went into effect.
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.
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.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
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 42 years old on the alleged disability onset date and the date of the hearing, and 43 years old on the date of issuance of the ALJ's decision. See Tr. 34 ¶ 7. The ALJ found that he has at least a high school education (Tr. 34 ¶ 8) and past relevant work as a personnel clerk (Tr. 34 ¶ 6).
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 1 December 2016, the alleged disability onset date. Tr. 27 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: degenerative disc disease; degenerative joint disease; osteoarthritis of the bilateral hips, knees, ankles, and feet; chronic pain syndrome; migraine headaches; major depressive disorder; anxiety/panic disorder; personality disorder; posttraumatic stress disorder ("PTSD"); and alcohol abuse. Tr. 27 ¶ 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. 28 ¶ 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, I find that the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except that he can frequently stoop, kneel, crouch, and/or crawl. He can frequently work at unprotected heights and frequently work around moving mechanical parts. He can
frequently work around loud noise. He can maintain concentration, persistence and pace to stay on task for two-hour periods during a typical eight-hour workday as required to perform simple and routine tasks. He can have frequent interaction with supervisors and with coworkers and occasional interaction with the public. He can adapt to changes in a relatively stable work setting. He requires a sit/stand option, as needed.Tr. 29 ¶ 5.
This regulation defines light work as 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 her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unahle to perform his past relevant work. Tr. 34 ¶ 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 collator operator, routing clerk, and marker. Tr. 35-36 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 1 December 2016, through the date of the decision, 20 April 2018. Tr. 36 ¶ 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.
Where, as here, additional evidence is submitted to the Appeals Council before it denies the claimant's request for review of the ALJ's decision, the court must review the record as supplemented in determining whether substantial evidence supports the Commissioner's findings. See Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (citing Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
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 by: not giving proper weight to the Department of Veterans Affairs ("VA") disability rating of plaintiff; not adequately accounting in the RFC determination for the moderate limitations the ALJ found plaintiff to have in concentrating, persisting, or maintaining pace at step three of the sequential analysis (see Tr. 29 ¶ 5); and not identifying and reconciling a purported apparent conflict between the vocational expert's testimony and the DOT, as required by Soc. Sec. Ruling 00-4p, 2000 WL 1898704, at *2, 4 (4 Dec. 2000) and Pearson v. Colvin, 810 F.3d 204, 208-09 (4th Cir. 2015). 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.
In advancing this contention, plaintiff argues, in part, that the ALJ's finding in her RFC determination that plaintiff "can maintain concentration, persistence and pace to stay on task for two-hour periods during a typical eight-hour workday as required to perform simple and routine tasks" cannot account for moderate limitations in concentrating, persisting, or maintaining pace because this schedule reflects the breaks in a normal workday. Tr. 29 ¶ 5; see Soc. Sec. Ruling 96-9p, 1996 WL 374185, at *6 (2 July 1996). But here, the state agency consulting psychologists at the initial and reconsideration levels of review made a finding, worded almost identically to the ALJ's, that plaintiff "can maintain concentration, persistence, and pace to stay on task for 2-hour periods during a typical 8-hour workday, as required to perform such simple, routine, repetitive tasks." Tr. 120, 135. They made this finding after determining that plaintiff was moderately limited in the "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." Tr. 120, 135. The ALJ gave the consulting state agency psychologists' overall assessment partial weight, noting that she found plaintiff more limited than they did in social functioning (she found plaintiff to have moderate limitations (Tr. 29 ¶ 4) whereas they found no limitations (Tr. 120, 135)). See Tr. 33 ¶ 5. Plaintiff failed to address the finding of the state agency consultants regarding two-hour breaks—upon which the ALJ appears clearly to have based her comparable, almost identically worded finding—in his argument regarding the sufficiency of the RFC determination. On remand, should the same issue arise, plaintiff needs to address this finding by the state agency consulting psychologists.
The apparent conflict alleged by plaintiff relates to the limitation of him in the hypothetical upon which the testimony in issue was based to "simple and routine tasks." Tr. 104; see also Tr. 29 ¶ 5. This limitation purportedly conflicts with General Educational Development ("GED") reasoning level 2 under the DOT. which requires the ability "to carry out detailed but uninvolved written or oral instructions." DOT. App. C § III, Scale of GED, Reasoning Dev., Level 2, 1991 WL 688702. All the occupations the vocational expert found plaintiff capable of performing have a GED reasoning level of 2. Collator Operator (DOT# 208.685-010), 1991 WL 671753; Routing Clerk (DOT# 222.687-022), 1991 WL 672133; Marker (DOT# 209.587-034), 1991 WL 671802. But the Fourth Circuit has recently held that there is no apparent conflict between a limitation to "simple, routine repetitive tasks of unskilled work" and GED reasoning level 2, Lawrence v. Saul, 941 F.3d 140, 142-44 & n.8 (4th Cir. 2019) ("In finding no apparent conflict between 'simple, routine, repetitive' and Level 2 reasoning, we join every other circuit to consider the issue."). In light of Lawrence, plaintiff's contention of an unresolved conflict lacks merit.
VI. ALJ'S EVALUATION OF VA RATING
A. Applicable Legal Principles
In Bird v. Comm'r of Soc. Sec. Admin., the Fourth Circuit ruled that the Social Security Administration ("SSA") must accord substantial weight to a VA disability rating. 699 F.3d 337, 343 (4th Cir. 2012). 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]ecausc 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) (descrihed 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, 734 F.3d at 295).
B. Analysis
A 26-page letter from the VA to plaintiff dated 16 February 2017 set out the VA disability ratings for plaintiff. Tr. 221-45. The VA found plaintiff to have an overall or combined rating of 100% effective 1 December 2016. Tr. 238. The composite ratings for this overall rating, also effective 1 December 2016, are: 10% for osteoarthritis of the right knee with lateral medial tear (Tr. 223); 50% for plus planus of the hilateral feet with heel spurs and calluses (Tr. 223); 10% for pseudofolliculitis barbae (Tr. 224); 10% for atopic dermatitis (Tr. 224-25); 40% for degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome, spinal stenosis, degenerative disc disease, and spondylosis (Tr. 225); 10% for a painful and tender scar on the left great toe (Tr. 225-26); 30% for migraine headaches (Tr. 227); 10% for osteoarthritis of the right hip with impairment of the thigh (Tr. 227-28); 10% for post-operative left ankle with osteoarthritis and lateral collateral ligament and deltoid sprain (Tr. 228); 30% for tinea capitis (Tr. 228-29); 50% for obstructive sleep apnea (Tr. 230); 50% for major depressive disorder with alcohol use secondary to depressive disorder (Tr. 231); 10% for gastroesophageal reflux disorder and irritable bowel syndrome (Tr. 233); 10% for osteoarthritis of the left hip with impairment of the thigh (Tr. 234); 50% for sinusitis (Tr. 235); and 10% for allergic rhinitis (Tr. 235-36). Each of the composite ratings is accompanied by findings supporting it.
The ALJ gave little weight to the 100% disability rating and the "permanent disability findings," presumably referring to the findings given for each of the composite ratings. Tr. 33 ¶ 5. She stated:
Little weight is given to the VA service connected disability rating of 100 percent and permanent disability findings (Exs. 1D, 2F, 4F, & 7F). I am mindful of the United States Court of Appeals for the Fourth Circuit's recent holding that a VA disability determination must be accorded "substantial weight" in Social Security disability proceedings. Bird v. Commissioner of Social Security Administration, F.3d, No. 11-1645 (4th Cir. Nov. 9, 2012). However, in so holding, the Court also held that "an Administrative Law Judge may give less weight to a VA disability rating when the record before the Administrative Law Judge clearly demonstrates that such a deviation is appropriate." In the case at bar, I find that such a deviation is appropriate because I cannot tell what medical or vocational evidence was used to reach the conclusion of disability or whether said evidence was similar to or different from the evidence of record before me. Furthermore, the rules for disability regarding that claim were different from our agency's rules. The VA doctors' opinions are based on a criterion that is specific to the job duties required for strenuous military work, and are not based on average functional abilities of the average worker. Thus, they do not correlate with the Social Security Regulations regarding functional assessments.Tr. 33 ¶ 5.
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 of the two sets of reasons cited by the ALJ for discounting the VA rating consists simply of recitations of purported differences between the standards used hy the VA and SSA in the evaluation of disability claims. Again, the ALJ stated:
[T]he rules for disability regarding that [VA] claim were different from our agency's rules. The VA doctors' opinions are based on a criterion that is specific to the job duties required for strenuous military work, and are not based on average functional abilities of the average worker. Thus, they do not correlate with the Social Security Regulations regarding functional assessments.Tr. 33 ¶ 5. If these purported 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).
The court need not and does not reach the issue of whether the ALJ's characterization of the VA disability claims process is accurate.
The other set of reasons given by the ALJ for discounting the VA rating—the ALJ's inability to determine what evidence was used to reach the conclusion of disability and thereby the extent to which such evidence was similar to the evidence hefore the ALJ—is also problematic. The rating decision actually identifies the evidence upon which it is based:
Evidence ConsideredTr. 243.
In making our decision, we considered:
• Service Treatment Records, from August 1, 2002 through July 12, 2016. Service medical records for the period February 1, 1995 to July 31, 2002, were not provided/available for review. If these records are located at a later date, this decision will be reconsidered. If a different decision results, that decision will be effective as of the date of the original claim.
• VAMC (Veterans Affairs Medical Center) treatment records, from October 31, 2016 through January 5, 2017
• Section (§) 5103 Notice Response, received December 2, 2016
• VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits, August 1, 2016
• VA Pre-Discbarge Psychology examination. Dated October 27, 2016
• VA Pre-Discharge General Medical examination. Dated October 13, 2016
• Birth Certificates and Social Security Cards for Quincy . . . received August 1, 2016
• Marriage Certificate received August 1, 2016
• VA 2I-686c Declaration of Status of Dependents received August 1, 2016
It is therefore unclear, without further explanation, in what sense the ALJ was unable to "tell what medical or vocational evidence was used to reach the conclusion on disability." Tr. 33 ¶ 5. Moreover, the manner in which the rating decision identified the evidence considered appears to the court to be typical for VA disability rating decisions. The ALJ's characterization of the identification here as deficient would therefore appear to be a basis for discounting VA rating decisions generally and therefore violative of Bird.
There is no question that the ALJ identified some of the evidence considered by the VA, namely, the note on the Compensation and Pension ("C&P") mental examination of plaintiff (Tr. 1058-64) and the 78-page note on the C&P physical examination of plaintiff (Tr. 1064-1141). The ALJ expressly assessed these examinations in her decision. Tr. 33 ¶ 5. Notably, the ALJ accorded these examinations "[p]artial weight." Tr. 33 ¶ 5. It is not apparent why these examinations were accorded partial weight while the VA disability rating decision which relied upon them, in part, was accorded little weight, which is presumably less than partial weight.
In addition, the record contains copious Department of Defense ("DOD") and VA medical records that fall within the date range given for the medical records that were considered in making the VA rating decision. Specifically, the date range for the medical records considered in making the rating decision is given as 1 August 2002 to 5 January 2017. Tr. 243. The DOD and VA medical records before the ALJ cover the period from 24 November 2004 to 17 October 2017. See, e.g., Tr. 347-966 (Ex. 1F; 24 Nov. 2004 to 27 Mar. 2017); 967-1181 (Ex. 2F; 13 Oct. 2016 to 29 Mar. 2017); 1182-1224 (Ex. 3F; 24 Nov. 2004 to 8 May 2017); 1225-1465 (Ex. 4F; 3 Jan. 2017 to 30 May 2017). All but 25 pages of the 1,485 pages of medical records before the ALJ are DOD and VA medical records, reflecting plaintiff's reportedly having served in the Army from 18 August 1993 until 30 November 2016. See, e.g., Tr. 1047. Particularly in light of the length of plaintiff's military service and the volume and seeming comprehensiveness of the DOD and VA medical records before the ALJ, it is unclear on what basis the ALJ appears to believe that the DOD and VA medical records before her that fall within the range given in the disability rating decision may not have been the same medical records in that range considered in making the disability rating decision. While the medical records before the ALJ do not extend back to 2002, as the medical records considered in making the VA rating decision evidently did, they certainly seem to extend back sufficiently far to enable evaluation of the VA disability rating decision. The ALJ did not find otherwise.
Curiously, in her discussion of the VA rating decision, the ALJ cites only three exhibits composed of medical records—Exhibits 2F, 4F, and 7F (Tr. 1468-1594). While Exhibits 2F and 4F contain medical records in the range given in the VA rating decision for the medical records considered in making it, Exhibit 7F does not. It includes medical records from 5 June 2017 to 1 September 2017, all postdating the range given in the rating decision. The ALJ did not cite other exhibits that do contain medical records in the range given in the rating decision—namely, Exhibits 1F and 3F. The citation scheme used by the ALJ in her assessment of the VA rating decision reinforces the court's concern about the ALJ's discounting of the rating based on her purported inability to identify the medical records considered in making it.
There are certainly factors that tend to lend weight to the VA disability rating decision. These include the fact that many of the same impairments that arc the subject of the VA composite ratings were found by the ALJ to be severe impairments, including degenerative disc disease, osteoarthritis of the hilateral hips, migraine headaches, and major depressive disorder. See Tr. 27 ¶ 3; 225, 227-28, 231, 234. Moreover, the effective date of the VA rating decision and the alleged onset of disability is the same—1 December 2016. See Tr. 25 (disability onset date); 223-25, 227-28, 230-31, 233-35 (effective date of composite ratings). Notably, as previously indicated, Bird cited a disparity in "the effective date of coverage for a claimant's disability" as a reason for limiting the weight accorded VA ratings. 699 F.3d at 343.
The court concludes that the failure by the ALJ to adequately explain her attribution of less than substantial weight to the VA rating precludes meaningful review of her 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 rating 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 materially different outcome in various aspects of the ALJ's analysis, including her assessment of plaintiff's statements regarding his impairments, which she discounted (Tr. 31 ¶ 5), and her determination of plaintiff's RFC. Remand of this case is therefore required on this additional ground of harmful error.
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. 20) for judgment on the pleadings he 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 2 December 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 written objections 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 15th day of November 2019.
/s/_________
James E. Gates
United States Magistrate Judge