Opinion
Civil Action 4:21-cv-03225-RBH-TER
01-13-2023
COREY BERNELL RICHARDSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge.
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits(DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff's procedural history is complex. The only ALJ decision before the court in the instant action is the one issued on January 30, 2020. (Tr. 862). The relevant period before the court is July 31, 2004 through December 31, 2005. (Tr. 861). Plaintiff is currently proceeding pro se in this appeal, but Plaintiff was not proceeding pro se before the ALJ at the last hearing and was represented by attorney Stacy Thompson. The first ALJ denial was in December 2012; this court remanded in May 2015 because the first ALJ did not begin with the premise of substantial weight when analyzing the VA opinions. (Tr. 838). In February 2016, the ALJ again rendered an unfavorable decision, which was remanded in August 2017 by the Appeals Council itself. (Tr. 1062, 1089). In May 2018, the ALJ rendered a partially favorable decision only as to SSI and not DIB; however, the Appeals Council remanded the decision in July 2019 as to both the favorable and unfavorable portions. (Tr. 1117, 1127).
The post March 2017 regulatory law changes that affect the analysis of treating opinions and VA opinions do not apply to Plaintiff, as the original application was filed well before 2017.
The partially favorable portion was only as to SSI, beginning in December 2015, ten years after the DLI for the DIB claim.
Then, well stated by the ALJ, “this case was both simplified and complicated by the claimant's withdrawal of the [SSI] claim in May 2018.” (Tr. 838). It was reconfirmed through Plaintiff's attorney in 2020 that Plaintiff desired to withdraw the SSI claim. (Tr. 838, 1377). The reason for the withdrawal of the SSI claim is Plaintiff was likely over the income limits to receive any benefits since he had been receiving VA benefits since 2012. (Tr. 1377).
In January 2020, the ALJ found Plaintiff was not disabled within the act during the relevant period of July 2004 through December 2005. (Tr. 862). The Appeals Council declined to assume jurisdiction stating the ALJ in 2020 explained that many of the records relied on by the ALJ were years past the DLI and of little relevance to the relevant time period, that the analysis of PTSD not being diagnosed prior to the DLI was sufficiently supported, and that the 2020 ALJ's decision complied with the prior orders of the court as well as the Appeals Council. (Tr. 822-823). Plaintiff filed this action pro se in October 2021 and has been responsive to court orders.
B. Introductory Facts
Plaintiff was born on April 2, 1969, and was thirty-five years old on the alleged onset date. (Tr. 860). Plaintiff had past work as a chemical specialist, groundskeeper, and poultry processor. (Tr. 860). Plaintiff alleges disability initially due to chronic fatigue, high blood pressure, depression, arthritis, and headaches. (Tr. 198). Pertinent records will be discussed under the relevant issue headings.
C. The ALJ's Decision
In the decision of January 30, 2020, the ALJ made the following findings of fact and conclusions of law (Tr. 862):
1. The claimant met the insured status requirements of the Social Security Act through December 31, 2005, and not thereafter.
2. The claimant did not engaged in substantial gainful activity from July 31, 2004, the alleged onset date, and December 31, 2005, the date his disability insurance coverage expired (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Through December 31, 2005, the date the claimant's disability insurance coverage expired, the claimant had the following severe impairments: degenerative joint disease of the right ankle, degenerative joint disease of the knees, obesity, fatigue from an undiagnosed impairment, depression, and generalized anxiety disease (20 CFR 404.1520(c) and 416.920(c)).
4. Through December 31, 2005, the date the claimant's disability insurance coverage expired, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that through December 31, 2005, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations: occasional operation of foot controls, bilaterally; frequent stooping, kneeling, crouching, crawling, balancing, or climbing ramps and stairs but only occasional climbing ladders, ropes, and scaffolds; and, frequent exposure to hazards such as unprotected heights or dangerous machinery. Limited to perform simple, routine tasks, but is able to maintain concentration, persistence, or pace for periods for at least two hours at a time; and perform activities within a schedule, maintain regular attendance, and complete a normal workday and work week with no more than occasional interaction with the general public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 2, 1969 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant was “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, through December 31, 2005, there were jobs that existed in significant numbers in the national economy that the claimant could perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 31, 2004, through December 31, 2005, the date his disability insurance coverage expired (20 CFR 404.1520(g) and 416.920(g)).
II. DISCUSSION
Plaintiff argues the ALJ played doctor and rejected the VA findings on a “philosophical basis.” (ECF No. 23 at 10-11). Plaintiff essentially argues there is “linkage” between evidence and VA opinions post-DLI. (ECF No. 23 at 15-16). Plaintiff states that the ALJ did not give persuasive, specific, valid reasons for not giving substantial weight to the post-DLI VA opinions. (ECF No. 23 at 16).
Plaintiff's reply brief is unresponsive to Defendant's brief, essentially sets forth the definitions and regulations regarding the five steps of a social security evaluation, and conclusorily states Plaintiff should be approved for benefits; neither the Bird case nor linkage(the focus of the initial brief) are mentioned. (ECF No. 31). Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument-even if its brief takes a passing shot at the issue.”)(cleaned up). Plaintiff attaches news articles of mystery illness of Gulf War service. (ECF No. 31-2). While Plaintiff as a pro se litigant is entitled to liberal construction, a court may not construct Plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Defendant argues the ALJ's decision shows careful analysis of post-DLI evidence, providing a number of supported reasons in deviating from substantial weight as to the VA opinions. (ECF No. 24).
Plaintiff himself has not sent additional evidence to the court or presented any arguments about any additional evidence sent by others; however, supporters of Plaintiff have been mailing letters of support directed at the undersigned and requesting an award of benefits to Plaintiff. (ECF Nos. 33, 34, 35). These letters emphasize Plaintiff's military service and medical suffering generally; these submissions are not from any medical providers. Pursuant to the sixth sentence of 42 U.S.C. § 405(g), a court may remand on the basis of additional evidence not presented to the agency “only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Plaintiff makes no arguments as to these requirements. These records are not material as they well post-date the relevant time period before the ALJ and are not medical records. There is no basis to remand as to these letters.
To be considered “material,” additional evidence must relate to the relevant period. 20 C.F.R. § 404.970(a)(5).
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) 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 at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [ ] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).Substantial evidence as a threshold is “not high;” “[u]nder 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 v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
B. ANALYSIS
Weight of VA Opinions and Post-DLI Linkage Issues
Plaintiff argues that the ALJ did not give persuasive, specific, valid reasons for not giving substantial weight to the post-DLI VA opinions. (ECF No. 23 at 16). Defendant argues the ALJ's decision shows careful analysis of post-DLI evidence and the ALJ provided a number of supported reasons for deviating from substantial weight as to the VA opinions. (ECF No. 24).
Medical evidence produced after the DLI is generally admissible if such evidence “permits an inference of linkage with the claimant's pre-DLI condition.” Bird v. Comm'r, 699 F.3d 337, 341 (4th Cir. 2012). However, if there is no evidence linking additional impairments to the claimant's condition prior to his DLI, the ALJ is not required to retrospectively consider that information. Id. at 341; Roberts v. Colvin, No. 8:15-CV-00076-TMC-JDA, 2016 WL 4394507, at *11 (D.S.C. July 25, 2016), report and recommendation adopted, 2016 WL 4266376 (D.S.C. Aug. 12, 2016)(finding where the VA did not find PTSD until eight years after the DLI and where the ALJ considered post-DLI evidence finding no linkage between pre-DLI condition and post-DLI diagnosis, the ALJ was not required to give retrospective consideration). The ALJ “must give substantial weight to a VA disability rating.” Bird, 699 F.3d at 343. The ALJ may give less than substantial weight to the VA determination “when the record before the ALJ clearly demonstrates such a deviation is appropriate.” Id.
The ALJ recognized the importance and complexity of his task as to this issue given the prior remands and discussed the applicable law he applied:
The claimant must establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits. The majority of the treatment records pertain to the period subsequent to December 31, 2005, which raises the issue of what records can be reasonably related back to the period under consideration and provide assistance in determining the nature and severity of the impairments existing during that period. The Bird case is also instructive on this issue. When there is no evidence of an impairment existing prior to the date last insured, then that evidence is not relevant and need not be given retrospective consideration; however, medical evidence is admissible when the evidence permits an inference of linkage with the claimant's pre-DLI condition. Retrospective consideration of evidence is appropriate when the record is not so persuasive as to rule out any linkage of the final condition of the claimant with his earlier symptoms. Bird v. Commissioner, 699 F.3d 377 (4th Cir. 2012).
The clear intent of the court is that evidence, subsequent to the DLI, must be considered if can reasonably be related to that time period, and it provides evidence of the nature and severity of the claimant's impairments through the DLI. That can be tricky. If I acquired a stone in 2015 and determined it was a piece of granite, then given the nature of granite, it would have been a piece of granite in 2000 and earlier. The same cannot be said for people. People are biological entities whose physical, emotional, and mental statuses change over time; people are not stones. Some things can be more clear with people than other things. For example, if there is a knee radiograph in 2010 showing moderate arthritis with some clinical medical signs, I cannot, with any degree of certainty, say the same degree of arthritis and medical signs existed five years earlier, when there is no imaging or clinical evidence to support that severity five years earlier. The progressive nature of arthritis is a generally accepted truism. The same argument cannot necessarily be made for impairments such as depression or anxiety (probably any mental impairment). The symptoms and medical signs can be quite variable over time and might be affected by medications or medication dosage changes or medication changes, or medication noncompliance, or counseling, or counseling noncompliance, or complicated by illegal drug or alcohol use. Many variables at work here, and without evidentiary proof, it cannot be said with any degree of certainty that the severity in 2010 is the same as the severity was in 2005. For people, change is more of a constant -conditions can be progressive, wax and wane, or be acute and heal (maybe not always completely heal, there can be residuals). My point is that the inquiry needs to first begin with the conditions during the period under consideration from evidence directly pertaining to that period, then expand outward to learn what helps and what doesn't help to understand the condition during the relevant period. The further you depart from that time period, the less likely the evidence will be helpful understanding the conditions during the period at issue.(Tr. 839)(emphasis added).
The ALJ then explained how effective dates with the VA are different than alleged onset dates with the SSA:
Interestingly, the retrospective evidence analysis discussed in Bird affects my current evaluation of the numerous VA rating decisions in the current file, the majority of which were made after December 31, 2005, but some have effective dates within that time period, but as the court in Bird noted, the effective date merely reflected the date that Bird had applied for his benefits. Most of the VA ratings in the current file were not only completed after December 31, 2005, but relied upon medical records dated subsequent to December 31, 2005, so the use of earlier effective dates is not based upon the ability of those records to assist in determining the claimant's status through December 31, 2005, but upon the logical fallacy that those conditions
must have existed at that severity on the date the application was filed. The VA has chosen expediency over logical analysis. The logic is much more sound when there is an application date and a date upon which the alleged disabled status began, and if an individual is found to be disabled, it must be based upon evidence supporting the specific date. This difference between the evidence and effective date and an established onset date is significant and undermines the weight that can be afforded to VA rating decisions and their effective dates - Exhibits 6D-9D, 16E, and 27E. VA ratings will be more thoroughly discussed below in this decision.(Tr. 839-840)(emphasis added).
The ALJ then went through all 26 labeled medical evidence exhibits as to what time period the exhibits concerned. (Tr. 840). Those exhibits found to pertain to the relevant period before December 2005 were Exhibits 15F(November 2005 emergency room records), 19F(2001-2005 outpatient VA records), and 23F(1991-2003 outpatient VA records). (Tr. 840). Exhibits 16F(2003-2008 VA office treatment records) and 24F(2003-2011 outpatient VA records) had a mix of relevant and pre-AOD and post DLI records, 2003 through 2011. (Tr. 840). The ALJ specifically stated that Exhibits 16F and 24F were fully considered for the 2004-2005 period and the remainder reviewed to determine if anything related back, and if it related back, it was discussed further in the opinion. (Tr. 840).
The ALJ reviewed Exhibits 1F(2009 Sumter Family office records), 2F(2009-2010 VA hospital records),3F(2007-2010 Sandhills Medical office records), 7F(2010-2011 VA hospital records), 8F(2011 Sandhills Medical office records), 12F(2011-2012 VA hospital records), 13F(2012 VA office treatment records), 14F(2012 emergency room records), 17F(2011-2012 Sandhills Medical office records), 18F(2012 emergency room records), 21F(2013 emergency room records), 22F(2008-2017 VA hospital records), 25F(2011-2015 VA progress notes), and 26F(2017-2019 VA progress notes) and found that they covered January 2007 through November 2019 and were reviewed and found not to be reasonably related back to the pre-December 2005 period because they provided little if any information useful to determining Plaintiff's medical and functional status through December 2005. To the extent anything in the 26 exhibits did reasonably relate back to the relevant period, the ALJ discussed it further in the opinion, which the court further discusses below. (Tr. 840).
The methodology employed by the ALJ to start with the conditions as they were during the relevant period from evidence directly pertaining to that period and expanding outward appears to be a reasonable analysis in this complex case. (Tr. 839). Thus, this report and recommendation begins with the ALJ's evaluation of conditions during the relevant period, and then the ALJ's analysis as to evidentiary relation back and VA opinions' weight.
The ALJ found as severe impairments for the 2004-2005 period: degenerative joint disease of the knees and right ankle, obesity, fatigue from an undiagnosed impairment, depression, and generalized anxiety disorder. (Tr. 843).
The ALJ noted that Plaintiff testified at multiple hearings and the 2012 hearing was the closest in proximity to the 2005 DLI, despite being seven years after the DLI. (Tr. 846). The ALJ found that Plaintiff's testimony in 2018 that he experienced a worsening after 2005 undermined treatment records after 2005 as well because Plaintiff could not state that both he had substantially worsened since 2005 and that the same later records explained his medical functional status before 2005. (Tr. 846). The ALJ noted Plaintiff made other statements in April 2011 that he was worsening and Plaintiff stated that the changes themselves occurred in 2010. (Tr. 847). The ALJ cited Exhibit 11E/1, a 2011 disability report. (Tr. 847, 227). Again in October 2011, Plaintiff alleged multiple ailments had worsened and the date of worsening was August 15, 2011; the ALJ cited Exhibit 17E/1, a disability report completed by Plaintiff. (Tr. 847, 258). The ALJ found that Plaintiff's pinpointing of dates of worsening well after 2005 undermined the probative value of records from the same time period in considering whether they could reasonably relate back to 2005. (Tr. 847).
The ALJ found that as of December 2005, there were several ailments(fibromyalgia, chronic fatigue syndrome, PTSD, obstructive sleep apnea, hearing disorder, hand condition, and angina) that simply at that time did not meet the definition even for MDI (medically determinable impairment).(Tr. 848). The ALJ then gave extensive background history of Plaintiff's mental health ailments beginning in 2001. (Tr. 848). The ALJ noted that during the relevant period in December 2004, Plaintiff saw his primary care provider and was convinced something was physically wrong with him; the exam was normal. Plaintiff was assessed with somatoform disorder/probable hypochondriasis and referred to mental health. (Tr. 849). In January 2005, Plaintiff was seen by mental health (Tr. 637). Plaintiff examined with anxious mood and superficial/limited insight. (Tr. 639). Diagnosis was “rule out PTSD.” A consult was ordered. (Tr. 639). In February 2005, Plaintiff continued to complain that he just did not feel like he once did. (Tr. 640). Assessment was appropriate for outpatient treatment. (Tr. 641). The ALJ noted Plaintiff's doctor advised him he was spending too much time on the internet diagnosing himself and needed to stay away from the internet. (Tr. 849). The ALJ noted that after the February 2005 consult, no specific diagnosis was made. (Tr. 849). The ALJ considered a different note in February 2005 where PTSD was noted only as provisional. Plaintiff was convinced he had something physically wrong with him. (Tr. 849).
The regulations 20 C.F.R. § 404.1521 require that to be an MDI the impairment must result from abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques; symptoms or a diagnosis will not be used to establish the existence of an impairment.
Plaintiff's physical exams were unremarkable; Plaintiff received a primary diagnosis of somatoform disorder. “The physician explained to claimant that until his psychiatric issues were under control, his physical symptoms were not going to get better.” (Tr. 849). The ALJ considered November 2005 notes that stated Plaintiff was a man who thinks he is sick with an assessment of anxiety and “attempts were made to reassure him as to his good health.” (Tr. 849). After this discussion, the ALJ found that during the relevant period, there was no convincing evidence of a PTSD definitive diagnosis or any treatment of PTSD. (Tr. 849).
In May 2006, Plaintiff had physically unremarkable exams; assessment was somatoform versus delusional disorder, anxiety disorder, and questionable PTSD. (Tr. 850). In 2007 and 2008, anxiety neurosis, generalized anxiety disorder, and depression were noted. It was not until January 2008, Plaintiff was diagnosed with PTSD. (Tr. 850, 659-660, Exhibit 16F/61-62 2008 VA notes).
The ALJ discussed “fatigue from an undiagnosed impairment” as a separate issue. The ALJ noted a 2003 unremarkable neurological evaluation with no diagnosis, citing Exhibit 24F(VA hospital records from 2003 to 2011. (Tr. 850). Three years after the DLI, Plaintiff underwent an examination, chronic fatigue was not diagnosed, fatigue was not attributable to a diagnosed impairment, and there were no objective indications of chronic disability resulting from an illness manifested by fatigue. The ALJ cited Exhibits 24F/8-12(2007 exam records by Dr. Durkin) and 2F/12-16(a VA hospital duplicate record of Durkin's exam in a different format). (Tr. 850, 19681972, 302). Five years after the DLI, Plaintiff was seen for an evaluation for chronic fatigue syndrome; the assessment was “chronic disability manifested by fatigue due to undiagnosed illness.” Examinations were unremarkable, except for range of motion in right knee and ankle, which are discussed later as separate impairments from fatigue. (Tr. 850). Ten years after the DLI, the record contains a diagnosis of chronic fatigue syndrome, Exhibit 25F/2(June 2015 Dr. Byrd VA progress notes). (Tr. 850, 1984, 1987). The ALJ's finding was that the evidence through 2005 did not establish chronic fatigue syndrome. The ALJ found the January 2007 assessment did relate back because it considered earlier complaints/evidence and that it only established “fatigue from an undiagnosed impairment.” The ALJ specifically noted the physician stated there was no indication of a chronic disability resulting from an illness manifested by fatigue. (Tr. 850-851). The ALJ found the 2010, 2011, and 2015 evaluations too remote in time to reasonably relate back because many biological changes can happen over 5-10 years. Moreover, the ALJ found that even so, the 10 year post-DLI evaluations that found chronic fatigue syndrome did not meet the criteria under SSR 14-1p. (Tr. 851).
These condition-by-condition discussions may seem ill-placed, but importantly preface the ALJ's discussion of percentages appointed for similar ailments by the VA post-DLI. Again, the ALJ had emphasized the importance of discussing the status of particular impairments pre and post-DLI before analyzing the VA ratings of each impairment and the extent that evidence related back. (Tr. 839).
Finally, the ALJ considered Plaintiff's physical impairments. (Tr. 851). The ALJ provides history back to 1991 as to Plaintiff's ankle and knee. (Tr. 851). In 2002, Plaintiff had a 10% rating for right ankle arthritis; exam had tenderness, normal gait, and normal range of motion. (Tr. 851852). Diagnosis was post-fracture of right ankle. (Tr. 852, 1956). In August 2002 pre-AOD, imaging was negative for the right ankle, and there were small marginal osteophytes on knees. Plaintiff had normal gait. (Tr. 852). February 2003 notes showed within normal limits. 2004 lumbar imaging was unremarkable. (Tr. 852, 600, 1527). In December 2004, examination in all physical categories was normal. (Tr. 852, 699). In November 2005, Plaintiff was seen in the emergency room for back pain and dark urine; assessment was well-controlled hypertension. (Tr. 852, 597-598). In 2006, Plaintiff was referred to physical therapy for his complaints; he never went despite being scheduled. (Tr. 852, 632, 635). The ALJ found these records were close to the DLI and showed his complaints were not of a severity level for Plaintiff to comply with treatment. (Tr. 852). By 2009, knee imaging showed mild degenerative joint disease in knee and ankle with bony abnormalities. The ALJ noted the record does not suggest that those degrees of severity existed in 2005. (Tr. 852). The ALJ found the 2009 evidence that Plaintiff went to a physical therapy consult finding tenderness in ankle with an assessment of “decreased functional level due to decreased ankle stability due to ligamentous laxity to the lateral right ankle” and later exams of laxity did not to relate back to 2005 because treatment notes through 2005 did not document any instability or ligamentous laxity. (Tr. 853).
After reviewing each condition alleged as of the relevant period and reviewing evidence before and after the DLI and considering which evidence related back, then, the ALJ weighed the VA ratings and opinions which the VA also separated out by ailments.
The ALJ noted that the record contained several VA rating decisions with most being significantly after 2005 and the VA decisions overwhelmingly relied on records after 2005. (Tr. 854). The ALJ again explained that VA effective dates are very different from SSA alleged onset dates and gave the example that a grant of disability where the evidence shows disabled as of 2008, in SSA, the onset date would be 2008, but with the VA, the “effective date” would be the date the VA claim was filed, in the example, 2002. (Tr. 854).
Significantly, the VA rating decisions begin in 2010, five years after the DLI. (Tr. 854). The first July 2010 decision found the right ankle did not meet in excess of 10 percent and Plaintiff did not have chronic fatigue syndrome according to 2009 treatment records. Plaintiff only had a 10% rating for an undiagnosed illness with symptoms of fatigue. (Tr. 854, 249). Then, the ALJ discussed the October 2010 VA decision that increased the earlier 10% fatigue in July 2010 to 40%; however, the effective date was only September 24, 2010. (Tr. 854). The VA's discussion focused on the VA exam from September 2010. The ALJ found there was an inherent change in Plaintiff's condition from 2009 to 2010 based on the increase in percentage. (Tr. 854). The ALJ cited Exhibit 7D/4, the October 2010 VA decision, which expressly stated the “earliest date clinical evidence factually establishes this condition closer to 40% was in September 2010,” to support that the changed rating was based on September 2010 exam changes. (Tr. 164, 854). The ALJ found there was nothing suggesting that the 2010 evaluation reasonably related back to 2005; thus, the ALJ gave the 2010 rating negligible weight, instead of substantial weight. (Tr. 854). The ALJ also found that the 10% rating with a VA effective date of 2002 was only because that was when the application filed and the VA decision itself did not contain any supporting evidence discussion back to 2002. The ALJ referenced the ALJ's earlier extensive discussion of records regarding fatigue(also discussed and summarized above) and found that the evidence did not quantify severity or give any derivation of specific functional limitations. The 10% rating was given some weight but not substantial weight by the ALJ. (Tr. 854-855).
Next, the ALJ evaluated the May 2012 VA rating. The VA had reviewed evidence from 2008 through 2011 and had reviewed a 2001 rating decision. Plaintiff was given a 50% disability rating for major depression; however, it was only effective starting in October 2010. (Tr. 855, 153). The ALJ gave the May 2012 VA rating negligible weight and found that it did not relate back to the relevant period because “everything related to this VA rating was related to the period at least three years after the DLI and the VA gave an effective date of October 4, 2010.” (Tr. 855).
Continuing on, the ALJ discussed the November 2012 VA rating decision. The VA increased Plaintiff's rating for depression/anxiety from 50% to 70% only noting a GAF score of 58 as evidence for the change. There was also a list of evidence in the record which had no evidence prior to December 2008. There was no VA effective date as to the 70%. The ALJ stated:
Everything related to this VA rating was related to the period at least three years after the DLI. The only cited evidence was the same GAF rating as used to make the 50% rating decision in May 2012, and a statement that the evidence was more closely related to the criteria for a 70% evaluation. The May 2012 decision considered evidence through November 2011, and the November 2012 decision considered evidence through August 2012; since there was no discussion of the evidence other than the GAF rating, I must assume (as much as I dislike assuming), in the absence of specifically identified evidence, that the evidence between November 2011 and August 2012 made the difference in the changed rating percentage.
The VA rating authority failed to identify the evidence upon which he relied, so his decision cannot be adequately reviewed to determine the basis of his decision. In any event, I find no convincing evidence that this rating reasonably relates back to the period through December 31, 2005, and give it negligible weight.(Tr. 855)(emphasis added).
The ALJ gave negligible weight to a 2013 letter from the Veterans Affairs office(a state program) of a 100% rating effective October 2010 because the effective date was five years post-DLI and no evidence was discussed in the letter. (Tr. 855).
The ALJ gave the 2015 VA rating decisions negligible weight. (Tr. 855-856). The change as to the ankle rating was from 10% to 20%. The ALJ found that the arthritis change appeared to be based on the May 2009 MRI and the laxity change appeared to be based on the 2009, 2010, and 2013 laxity exams, citing Exhibit 27E, the May 2015 VA decision. (Tr. 855, 1407-1428). The ALJ found the 2015 VA rating decisions did not relate back because the VA relied on evidence 4-8 years after the DLI with that evidence documenting changes well after the DLI such that “it cannot reasonably be argued that the claimant's condition remained the same through December 31, 2005, when evidence from 2009 through 2013 showed changes from the earlier period.” (Tr. 855).
In May 2015, another VA rating was issued increasing the right ankle rating from 10% to 20% with the only evidence relied on being the May 2015 BVA decision and an April 2002 statement with no medical evidence cited. (Tr. 855). The May 2015 VA rating appeared to be based solely on earlier decisions and was given negligible weight by the ALJ for the same reasons as discussed as to the two prior VA decisions above. The ALJ also gave negligible weight to an unemployability finding. The ALJ found: “The unemployability finding also cannot reasonably related back to the period through December 31, 2005. The basis of the unemployability finding was evidence obtained and pertaining to periods after the DLI; the finding was not made using the ratings for the period through December 31, 2005.” (Tr. 855).
The ALJ concluded with clarification as to what ratings from the VA were credited/given some weight and why:
For the period through December 31, 2005, and based upon the overall record and the VA ratings, only the 10% rating for right ankle arthritis and a 10% rating for an undiagnosed illness manifested by fatigue appear to be applicable to the period under my consideration. The Bird v. Commissioner of Social Security Administration, 699 F.3d 337, 343 (4th Cir. 2012) decision did not provide instruction as how to translate the VA percentage ratings into specific functional limitations as required by the Social Security Act. A 10% rating would indicate some type of limitation, but it does not provide any information from which specific functional limitations may be derived.(Tr. 856). The ALJ further specifically noted that the few exams in the file in the relevant period “only substantiate minimal findings for the VA ratings” and some of the exams had no medical records available for their review. (Tr. 856).
As demonstrated above, the ALJ went piece-by-piece through the evidence explaining with supported reasoning whether evidence related back and the weight given to each VA opinion/rating.
The ALJ reviewed evidence for linkage, which exists when post-DLI evidence offers insight into impact on functional ability before the DLI. An ALJ is not required to consider post-DLI evidence if there is no linkage; despite this, the ALJ here considered each VA decision and assigned it weight. See Parker v. Berryhill, 733 Fed.Appx. 684, 687 (4th Cir. 2018). The ALJ's explanations, reasons, and cited supporting evidence has allowed meaningful review by the court. The ALJ has not run afoul of the precepts espoused in Bird as to post-DLI linkage or as to providing reasons for deviation from substantial weight to VA opinions. Substantial evidence supports the ALJ's conclusion that Plaintiff was not disabled during the relevant time period. The ALJ adequately explained the consideration of the evidence and the weight of the evidence. In accordance with the applicable regulations and Bird, the ALJ appropriately provided analysis of whether there was linkage to the relevant period when weighing each post-DLI VA rating decision.
III. CONCLUSION
This court is charged with reviewing the case only to determine whether the findings of the Commissioner were based on substantial evidence. Richardson, 402 U.S. at 390. Even where the Plaintiff can produce conflicting evidence which might have resulted in a contrary decision, the Commissioner's findings must be affirmed if substantial evidence supported the decision. Blalock, 483 F.2d at 775. The Commissioner is charged with resolving conflicts in the evidence, and this Court cannot reverse that decision merely because the evidence would permit a different conclusion. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). As previously discussed, despite the Plaintiff's claims, he has failed to show that the Commissioner's decision was not based on substantial evidence. Based upon the foregoing, and pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be AFFIRMED.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).