Opinion
Case No. 4:22-cv-00184-SMR-HCA
2023-08-08
James MOWRER, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
Wes Lance Kappelman, Kappelman Law Firm, Ames, IA, for Plaintiff. Jason Ray Lawrence, David L.D. Faith (Former), United States Attorney's Office, Des Moines, IA, SSA-Office of the General Counsel, Woodlawn, MD, for Defendant.
Wes Lance Kappelman, Kappelman Law Firm, Ames, IA, for Plaintiff. Jason Ray Lawrence, David L.D. Faith (Former), United States Attorney's Office, Des Moines, IA, SSA-Office of the General Counsel, Woodlawn, MD, for Defendant. ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS STEPHANIE M. ROSE, CHIEF JUDGE
Plaintiff James Mowrer applied for Disability Insurance Benefits ("DIB") under the Social Security Act. An Administrative Law Judge ("ALJ") denied Plaintiff's application for benefits. The Appeals Council affirmed the decision. Plaintiff then filed an action seeking judicial review of the Commissioner's determination and an order awarding benefits under several theories. [ECF No. 1]. For the reasons below, the Court concludes the Commissioner incorrectly applied the relevant law and reversal is appropriate.
I. DISCUSSION
The parties dispute whether the ALJ failed to adequately develop the factual record on Plaintiff's second disability rating from the United States Department of Veterans Affairs ("VA"). Plaintiff contends the ALJ did not acquire or consider the relevant medical records in support of this rating, instead rejecting the relevance of the rating outright. [ECF No. 6 at 15]. The Commissioner responds that the ALJ properly considered the VA ratings because another agency's ratings do not bind the Social Security Administration. [ECF No. 7 at 6-7]. The Court finds that the ALJ erred in consideration of the evidence.
A. Standard of Review
When reviewing a decision to deny benefits, the Court must ensure the Commissioner's determination complies with the statutory and regulatory requirements. Hesseltine v. Colvin, 800 F.3d 461, 464 (8th Cir. 2015) (citing Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). The court reviews de novo whether there is legal error by the Commissioner. Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008). "Legal error may be an error of procedure, the use of erroneous legal standards, or an incorrect application of the law." Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (internal citations omitted).
B. Consideration of Evidence
It is well established that the Commissioner does not have to consider or discuss "every piece of evidence presented, but must develop the record fully and fairly." Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993) (citation omitted). However, an ALJ must consider "findings of disability by other federal agencies, even though they are not binding." Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998) (noting that a "VA finding was important enough to deserve explicit attention."). This requirement can be satisfied with direct discussion of the rating itself or analysis of the evidence that supports the rating. Pelkey v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006) (explaining that "[a]lthough he did not specifically mention the [rating], the ALJ did not err because he fully considered the evidence underlying the VA's final conclusion that Pelkey was 60 percent disabled."); Baker v. Colvin, 620 Fed. Appx. 550, 555 (8th Cir. 2015) (holding that the ALJ properly considered the rating because he found the underlying medical evidence to be unpersuasive).
On March 27, 2017, the Social Security Administration implemented a regulation that substantially codified Morrison and Pelkey. 20 C.F.R. § 404.1504. Specifically, the regulation states that "in claims filed on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency . . . about whether you are disabled, blind, employable, or entitled to benefits." Id. The same regulation provides: "we will consider all of the supporting evidence underlying the other governmental agency . . . decision that we receive as evidence in your claim." Id.
Although the United States Court of Appeals for the Eighth Circuit has not examined the contours of Morrison after the new regulation, district courts in the Circuit have uniformly required the Commissioner to consider, at a minimum, the evidence underlying the disability determination of another agency. Bruton v. Kijakazi, Case No. 3:20-cv-232, 2022 WL 1749828, at *4-6 (D. N.D. Feb. 8, 2022) (remanding for consideration of the VA's disability rating because the Commissioner had an obligation to consider all relevant evidence); Green v. Saul, No. 3:18-CV-00041-JAJ-HCA, 2019 WL 13216609, at *4 (S.D. Iowa Sept. 23, 2019) (reaching the same procedural conclusion after an opportunity to supplement the record before the ALJ was offered and rejected by plaintiff); Alice T. v. Kijakazi, 8:21CV14, 2021 WL 5302141, at *9-10 (D. Neb. Nov. 15, 2021) (vacating and remanding the decision of the Commissioner for failure to consider records related to a VA disability determination); Charette v. Saul, Case No. 3:18-cv-254, 2019 WL 7605835, at *8-9 (D. N.D. Nov. 22, 2019) (remanding for further consideration); Watson v. Berryhill, No. 2:17 CV 20 DDN, 2018 WL 4462287, at *5-7 (E.D. Mo. Sept. 18, 2018) (affirming the Commissioner); Joshua G. v. Saul, Case No. 19-cv-2467 MSK / ECW, 2021 WL 1102991, at *8 (D. Minn. Feb. 2, 2021) (same).
C. Analysis
The administrative record contains evidence suggesting Plaintiff had multiple disability determinations from the VA. [ECF No. 4]. For example, there is a 2020 report where the VA assigned Plaintiff an impairment rating based on three medical conditions. [ECF No. 4-3 at 3]. This report includes medical evidence in support of this finding. Id. at 4-6. The ALJ's decision discusses these findings in the ruling on Plaintiff's request for benefits. [ECF No. 4-2 at 9-10].
In contrast, the new findings by the VA are almost entirely absent from the administrative record. The only information related to these new findings is a short letter mailed to Plaintiff explaining that he was "unemployable" and "totally and permanently disabled" because of his service. [ECF No. 4-5 at 39-40]. There is no additional documentation related to the finding by the VA in the record and there was no request by the ALJ to acquire the items. See generally [ECF No. 4]. There is, by extension, no discussion of the evidence supporting the rating. Id.
This constitutes legal error for two reasons. The first reason is that the ALJ did not carry out the "independent duty to develop the record in a social security disability hearing." Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (citing Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)) (explaining that this duty exists because a "social security disability hearing is non-adversarial" and an ALJ has no interest in improperly denying benefits). This duty was not fulfilled because the ALJ was aware of the rating but did not request or receive the underlying medical records. Charette, 2019 WL 7605835, at *8-9 (finding remand appropriate in this situation).
The second reason is the ALJ did not follow binding case law and regulations requiring the Commissioner to consider the documentation underlying an agency action. See Morrison, 146 F.3d at 628 (a "VA finding was important enough to deserve explicit attention."); Bruton, 2022 WL 1749828, at *4-6 (noting that 20 C.F.R. § 404.1504 requires the Commissioner to consider the evidence underlying an agency action). The ALJ should have acquired the relevant evidence and considered it, but did not do so. Green v. Saul, 2019 WL 13216609, at *4.
The appropriate remedy is reversing and remanding the decision of the Commissioner so that the ALJ may consider the evidence in the first instance. Bruton, 2022 WL 1749828, at *7; Green, No. 2019 WL 13216609, at *4; Alice T., 2021 WL 5302141, at *19. Given how remand is appropriate, the Court need not address Plaintiff's remaining contentions.
II. CONCLUSION
For the reasons described above, the Commissioner's decision is REVERSED AND REMANDED for further proceedings consistent with this Order.
IT IS SO ORDERED.