Opinion
C. A. 21-1276-SAL-PJG
05-19-2022
Gail P. Moore, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration,[1] Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S APPEAL FROM THE SOCIAL SECURITY ADMINISTRATION'S DENIAL OF SOCIAL SECURITY BENEFITS
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
[] Affirm
[X] Reverse and Remand
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security (“Commissioner”), denying the plaintiff's claims for social security benefits.
Part I-Plaintiff seeks:
[X] Supplemental Security Income (“SSI”): Plaintiff's age at filing: 49
[X] Disability Insurance Benefits (“DIB”): Date last insured: December 31, 2018
[ ] Other:
Application Dated: February 16, 2017
Plaintiff's Year of Birth: 1967
Plaintiff's alleged onset Dated: April 13, 2015
Part II-Social Security Disability Generally
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), and/or 42 U.S.C. § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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.” 20 C.F.R. § 404.1505(a) and/or § 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations generally require the Administrative Law Judge (“ALJ”) to consider five issues in sequence, as outlined below. 20 C.F.R. § 404.1502(a)(4) and/or § 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
A claimant has the initial burden of showing that he/she is unable to return to past relevant work because of his/her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A) and/or § 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
Part III-Administrative Proceedings
Date of ALJ Decision: January 16, 2019
In applying the requisite five-step sequential process, the ALJ found:
Step 1: Plaintiff was engaged in substantial gainful activity during the relevant time period:
[ ] Yes [ ] No
Step 2: [X] Plaintiff has the following severe impairments:
[C]ervical and lumbar degenerative disc disease, left knee degeneration, obesity, depression, and bipolar disorder (20 CFR 404.1520(c) and 416.920(c)).
[] Plaintiff does not have a severe impairment.
Step 3: [X] Plaintiff's impairment(s) does/do not meet or medically equal a Listing. 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Plaintiff's Residual Functional Capacity is as follows:
[T]he claimant has the residual functional capacity to perform less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). She can occasionally balance, stoop, crouch, climb ramps and stairs, reach overhead bilaterally, and operate foot controls with the left foot. She cannot kneel, crawl, or climb ladders, ropes, or scaffolds. She can occasionally work around vibration, but never around unprotected heights or moving mechanical parts. Mentally, she can perform simple, routine tasks in two-hour segments and tolerate few changes in a routine work setting. She can occasionally interact with co-workers, supervisors, and the public. Lastly, she will likely be off task 5% of any given workday.
[ ] Plaintiff could return to his/her past relevant work.
Step 5: [ ] Plaintiff could not return to his/her past relevant work, but using the Medical-Vocational Guidelines (“Grids”) as a framework supports a finding that Plaintiff is not disabled. 20 C.F.R. Pt. 404, Subpt. P, App'x 2.
[X] Plaintiff could not return to his/her past relevant work, but there are jobs in the national economy that Plaintiff can perform, as follows:
1. Fruit cutter (DOT# 521.687-066) with 14,000 positions nationally;
2. Garment sorter (DOT# 222.687-014) with 31,000 positions nationally;
3. Laundry folder (DOT# 369.687-018) with 52,000 positions nationally.
Date of Appeals Council decision: February 5, 2020
Part IV-Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154 (citation omitted). In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
Part V-Issues for Judicial Review
Issue 1: Listings of Impairments. The ALJ erred in determining that Moore's impairments did not meet or equal a Listing of Impairments in Subpart P of Regulations No.4. When the ALJ failed to properly evaluate a claimant's impairment to the relevant listing, must the case be remanded for a proper evaluation?
Issue 2: The ALJ must properly evaluate the claimant's VA rating decision. Can a decision that summarily dismisses a VA rating decision without proper evaluation stand?
Issue 3: The ALJ was required to weigh all evidence. Yet, the ALJ failed to acknowledge, let alone weigh, Dr. Pederzani's opinion. Can a decision that fails to weigh all relevant evidence stand?
(Pl.'s Br. at 28, 30, 33, ECF No. 19 at 30, 32, 35.)
Although Plaintiff's Brief includes a table of contents with the issues on appeal, these issues do not appear to match what is included in Plaintiff's brief. Therefore, the court has used the issues as they appear in Plaintiff's argument section.
Oral Argument:
[ ] Held on ____.
[X] Not necessary for recommendation.
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1504, 416.904, 404.1513, 416.913, 404.1527, 416.927. Because the instant claim was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Plaintiff's application for benefits was filed, unless otherwise specified.
Although Plaintiff raises several issues for this judicial review, the court finds that remand is warranted on the second issue, which may impact the other issues; therefore, the court addresses this issue first. In this issue, Plaintiff challenges the ALJ's evaluation of his VA disability rating. In Bird v. Astrue, 699 F.3d 337 (4th Cir. 2012), the United States Court of Appeals for the Fourth Circuit addressed for the first time the weight that the Social Security Administration must afford to a Department of Veterans Affairs disability rating. The Fourth Circuit found that “under the principles governing SSA disability determinations, another agency's disability determination ‘cannot be ignored and must be considered.' ” Id. at 343 (quoting SSR 06-03p). The Court further observed that “[b]oth 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. at 343 (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)). The Court also found “[b]ecause the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency.” Bird, 699 F.3d at 343. The Bird Court ultimately held:
[I]n making a disability determination, the SSA must give substantial weight to a VA disability rating. However, because 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.Bird, 699 F.3d at 343.
The Fourth Circuit has since extended the rationale in Bird to state agency determinations. See Woods v. Berryhill, 888 F.3d 686, 692 (4th Cir. 2018). Importantly, the Woods Court further elaborated on Bird's requirement that the record “clearly demonstrate” that a deviation from another agency's disability determination is appropriate by explaining that “an ALJ must give ‘persuasive, specific, valid reasons for doing so that are supported by the record.' ” Id. (quoting McCartey, 298 F.3d at 1076). The Woods Court offered examples of these reasons, stating that “an ALJ could explain which aspects of the prior agency decision he finds not credible and why, describe why he finds other evidence more credible, and discuss the effect of any new evidence made available after [the agency] issued its decision.” Id. Acknowledging that the list is not exclusive, the Woods Court explained that “the point of this requirement-and of these examples-is that the ALJ must adequately explain his reasoning; otherwise, we cannot engage in a meaningful review.” Id. at 692-93.
Here, the ALJ acknowledged the VA disability rating, as well as the requirements following Bird. Specifically, the ALJ found as follows:
Finally, the Veteran's Administration awarded her a 90% combined disability rating, which I considered in light of Bird v. Comm'r of Soc. Sec., 699 F.3d 337 (4th Cir. 2012). In Bird, the District Court specifically noted that I must give the VA's disability determination “substantial weight” or explicitly detail the reasons for giving it less weight. (Bird at 699 F.3d at 343). Here, the VA determined that the claimant has a disability rating of 90%. I assign only partial weight to the VA disability determination, specifically, because the VA uses a more deferential standard in evaluating the claimant's subjective complaints than SSA, requiring that the agency resolve all reasonable doubt in favor of the veteran, whereas under Social Security's disability framework, I am bound to apply a preponderance of the evidence standard. Additionally, the definition of disability utilized by the VA allows the claimant to work while receiving disability payments, whereas under the Commissioner's regulations, an individual must be unable to perform any work in
the national economy as result of his or her severe medically determinable impairment (20 CFR 404.953, 405.l(c)(3), and 416.1453; 38 USC 5107(b); and 39 CFR 3.102).
(Tr. 36-37.)
Plaintiff argues that the ALJ's evaluation of the VA disability rating fails to comply with the requirements of Bird and SSR 96-8p. Upon careful review of the ALJ's decision and the parties' arguments, as well as applicable case law, the court is constrained to agree. Courts within the Fourth Circuit have found that post-Bird and Woods an ALJ must do more than point out the differing standards between the two programs to justify giving a VA disability rating less than substantial weight. As explained by one court:
Following Bird and Woods, courts in the Eastern District of North Carolina have found that “[g]eneral differences between VA disability ratings and Social Security disability determinations are not . . . a sufficient basis for discrediting VA disability ratings.” Bennefield v. Saul, No. 5:19-CV-87-FL, 2020 WL 633106, at *3 (E.D. N.C. Jan. 21, 2020) (citing Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D. N.C. Aug. 10, 2015)); see also Smith v. Berryhill, No. 5:18-CV-65-FL, 2019 WL 848733, at *5 (E.D. N.C. Jan. 2, 2019). This is because “[s]uch 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.” Id. Indeed, if such an explanation were sufficient, an ALJ would be justified in assigning less than substantial weight to a VA rating in each and every case, contrary to the Fourth Circuit's intention in Bird.
Wade v. Kijakazi, No. 5:20-CV-104-M, 2021 WL 4452016, at *7 (E.D. N.C. Sept. 14, 2021) (Report & Recommendation), adopted by 2021 WL 4444717 (Sept. 28, 2021); see also Perkins v. Comm'r of Soc. Sec. Admin., No. 3:20-CV-00340-MR-WCM, 2021 WL 5100961, at *3 (W.D. N.C. Oct. 15, 2021) (Report & Recommendation) adopted sub nom. by Perkins v. Kijakazi, 2021 WL 5099594 (Nov. 2, 2021) (“[M]erely stating that the VA's disability decision was based on different standards does ‘not amount to persuasive or specific reasons justifying a decision to give less than substantial weight to the finding.' ”) (quoting Woods, 888 F.3d at 693 & citing Wilson v. Saul, No. 3:18-cv-00455-MR, 2019 WL 4727911, at *5 (W.D. N.C. Sept. 26, 2019) (“The general statement that the VA and SSA disability determinations may differ in theory and therefore are of limited relevance, is simply not sufficient”); Jenkins v. Berryhill, No. 1:18-cv-00050-MR, 2019 WL 1317730, at *5 (W.D. N.C. Mar. 22, 2019) (“For the ALJ to enumerate all the ways that VA and SSA disability determinations may differ in theory is simply not sufficient.”)).
Thus, the court finds that the ALJ has failed to comply with the requirements outlined in Bird and Woods. Specifically, the ALJ failed to sufficiently explain why the records clearly demonstrate that only partial weight should be given to the VA disability rating as the only reasons offered by the ALJ are differences in the programs. Accordingly, the court is constrained to find that meaningful review is frustrated, and further explanation is required.
In light of the court's decision to remand for further consideration, the court need not address Plaintiff's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Plaintiff may present her remaining arguments on remand.
RECOMMENDATION
It is recommended that this matter be
[ ] Affirmed. Plaintiff has failed to show that the Commissioner's decision was unsupported by substantial evidence or controlled by an error of law.
[ ] Reversed and remanded pursuant to 13 Sentence Four □ Sentence Six of 42 U.S.C. § 405(g) for further consideration consistent with this Order.
[ ] Reversed and remanded for an award of benefits.
The parties' attention is directed to the important notice on the next page.