Opinion
CIVIL ACTION No. 19-cv-05721-JDW
09-04-2020
AMANDA L. MAHER Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Amanda L. Maher was denied social security benefits by the decision of an Administrative Law Judge ("ALJ"). Ms. Maher contends that the ALJ's unfavorable decision was made in error. Pl. Br. at 4-11 (Doc. No. 12). Specifically, Ms. Maher argues the ALJ erred by (1) excluding without explanation a limitation in the RFC to one- and two-step tasks; and (2) not adequately considering the Veterans Administration's ("VA") disability rating for Ms. Maher. Id. The Commissioner of Social Security ("Commissioner") responds that the ALJ's decision was supported by substantial evidence. Def. Br. at 4-13 (Doc. No. 13).
After careful review, I agree with Ms. Maher and find that the ALJ erred. For the reasons set forth below, I respectfully recommend that Ms. Maher's case be remanded for further proceedings.
PROCEDURAL HISTORY
Ms. Maher filed a claim for disability insurance benefits ("DIB") on June 28, 2016, alleging her disability began on December 7, 2015. R. 29. The claim was initially denied September 28, 2016. R. 93-99. After this denial, Ms. Maher requested an administrative hearing before an ALJ. The hearing was held on February 28, 2019. R. 862-85 (transcript of hearing). Ms. Maher and an impartial vocational expert, Mr. Brian Bierly, testified. Id. Following this hearing, on April 15, 2019, the ALJ issued a written decision, denying Ms. Maher's claim. R. 15-27. The Appeals Council subsequently denied Ms. Maher's request for review. R. 6-8. This appeal follows.
It appears that Ms. Maher's claim was again denied at the initial level in December 2017. R. 29-49.
FACTUAL BACKGROUND
A. The claimant's background.
Ms. Maher was born in March 1990, making her a "younger individual" under the regulations at all times relevant to her application. R. 29. She has completed high school and can communicate effectively in English. R. 128-30.
Ms. Maher alleges her disability began while serving in the United States Army. When she was preparing to deploy, her child died unexpectedly in the care of the child's father. R. 871. Following this traumatic event, Ms. Maher developed a variety of ailments, most notably post-traumatic stress disorder ("PTSD"), bulimia nervosa, depression, and bipolar disorder, and she has not been able to work for any significant length of time since then. See R. 871.
Ms. Maher has held a variety of jobs since December 7, 2015; however, none of these were found to qualify as substantial gainful employment. R. 18.
On June 28, 2016, Ms. Maher filed for DIB alleging disability based on her PTSD, bulimia nervosa, depression, and anxiety. R. 29.
B. The ALJ's decision.
The ALJ issued an unfavorable decision on April 15, 2019, finding that Ms. Maher was not disabled as defined by the Social Security Act. R. 15-27. The ALJ made the following findings of fact and conclusions of law pursuant to Social Security's five-step sequential evaluation.
An ALJ evaluates each case using a sequential process until a finding of "disabled" or "not disabled" is reached. The sequence requires an ALJ to assess whether a claimant: (1) is engaging in substantial gainful activity; (2) has a severe "medically determinable" physical or mental impairment or combination of impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed in the social security regulations and mandate a finding of disability; (4) has the residual functional capacity to perform the requirements of her past relevant work, if any; and (5) is able to perform any other work in the national economy, taking into consideration her residual functional capacity, age, education, and work experience. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).
At step one, the ALJ concluded Ms. Maher had not engaged in substantial gainful activity ("SGA") since her alleged onset date of December 7, 2015. R. 17. The ALJ recognized that Ms. Maher had worked after this date, but this employment was not SGA. Id.
The ALJ found Ms. Maher met the insured status requirements through December 31, 2021. R. 17.
At step two, the ALJ concluded that Ms. Maher has the following severe impairments: PTSD, bulimia nervosa, depressive disorder/dysthymia/major depressive disorder/bipolar disorder, anxiety disorder NOS/generalized anxiety disorder with social anxiety features, and a history of a personality disorder. R. 18.
At step three, the ALJ compared Ms. Maher's severe impairments to those contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. R 19. The ALJ found that Ms. Maher's limitations did not meet or medically equal the criteria contained in the listed impairments. Id. Reaching this conclusion, the ALJ specifically ruled out Listings §§ 12.04 (relating to depressive and bipolar disorders), 12.06 (relating to anxiety and obsessive-compulsive disorders), 12.08 (relating to personality and impulse-control disorders), 12.13 (relating to eating disorders), and 12.15 (relating to trauma and stressor-related disorders). Id. The ALJ found that Ms. Maher had only moderate limitations in remembering and applying information; interacting with others; concentrating, persisting, and maintaining pace; and adapting and managing oneself. R. 19-20.
The regulations contain a series of "Listings" that describe symptomology related to various impairments. See 20 C.F.R. Pt. 404, Subpt. P., App. 1. If a claimant's documented symptoms meet or equal one of the impairments, "the claimant is conclusively presumed to be disabled." Bowen v. Yuckert, 482 U.S. 137, 141 (1987). If not, the sequential evaluation continues to step four, where the ALJ determines whether the impairments assessed at step two preclude the claimant from performing any relevant work she may have performed in the past. Id.
At step four, the ALJ assessed Ms. Maher's residual functional capacity ("RFC"), or "the most [Ms. Maher] can still do despite [her] limitations." 20 C.F.R. § 404.1545. After a review of the objective medical evidence and subjective medical opinion evidence, the ALJ concluded that Ms. Maher is able to perform work at all exertional levels but is limited to simple, routine, repetitive tasks with few, if any work-place changes. R. 21-26. The ALJ further found Ms. Maher cannot have interactions with the public, and only occasional interactions with coworkers and supervisors. Id. Based on this RFC, the ALJ determined that Ms. Maher is unable to perform her past relevant work as an Army supply specialist and a laborer. R. 26.
At step five, the ALJ identified three representative occupations that exist in significant numbers in the national economy that Ms. Maher could perform considering her age, education, work experience, and RFC. R. 27. These occupations were small products assembler, electrical assembler, and plastics products assembler. R. 27.
Because the ALJ identified jobs that Ms. Maher could perform, the ALJ found her "not disabled." R. 27.
STANDARD OF REVIEW
My review of the ALJ's decision is deferential; I am bound by his findings of fact to the extent those findings are supported by substantial evidence in the record. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citing to Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). Accordingly, my review of the ALJ's findings of fact is limited to determining whether substantial evidence supports the ALJ's decision. Harftranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing to 42 U.S.C. § 405(g)). If the ALJ's decision is supported by substantial evidence, his disability determination must be upheld. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); see also 42 U.S.C. § 405(g).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Evidence is substantial where it consists of "more than a mere scintilla but may be less than a preponderance." Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
I must rely on the record developed during the administrative proceedings along with the pleadings in making my determination. See 42 U.S.C. § 405(g). I may not weigh the evidence or substitute my own conclusions for those of the ALJ. Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). I must also defer to the ALJ's evaluation of evidence, assessment of the witnesses, and reconciliation of conflicting expert opinions. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 506 (3d Cir. 2009).
The ALJ's legal conclusions and application of legal principles are subject to "plenary review." See Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). I must determine whether the ALJ applied the proper legal standards in reaching the decision. See Coria v. Heckler, 759 F.2d 245, 247 (3d Cir. 1984). Accordingly, I can overturn an ALJ's decision based on an incorrect application of a legal standard even where I find that the decision is supported by substantial evidence. Payton v. Barnhart, 416 F. Supp. 2d 385, 387 (E.D. Pa. 2006) (citing to Friedberg v. Schweiker, 721 F.2d 455, 447 (3d Cir. 1983)).
DISCUSSION
A. The ALJ erred by not explaining why a limitation to one- and two-step tasks was not included in the RFC.
Ms. Maher first challenges the ALJ's lack of explanation for not including a limitation to one- and two-step tasks—a limitation twice imposed by the state agency reviewing consultant—in the RFC and in the related hypothetical for the VE. Pl. Br. at 4-7. The Commissioner argues that the RFC is consistent with the limitations described in the medical opinions; the record evidence does not indicate that Ms. Maher requires this additional limitation; and even if this extra limitation was included, it would not conflict with the VE's testimony or the Dictionary of Occupational Titles ("DOT"). Def. Br. at 5-10. After careful consideration, I agree with Ms. Maher that the ALJ erred and respectfully recommend that this case be remanded back to the Commissioner for further proceedings.
To be precise, Ms. Maher, in her brief, argues that the ALJ committed two related errors: (1) not including the limitation in the RFC when Dr. Gavazzi's opinion was "uncontroverted"; and (2) not explaining the reason for not incorporating this limitation. Pl. Br. at 4-7. Because I agree that remand is required based on the second part of her argument, I need not address the first part.
In assessing a claimant's RFC, the ALJ is required to consider "all relevant evidence" and adequately explain the basis for the RFC determination. Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001); see also 20 C.F.R. § 404.1545(a) ("We will assess your residual functional capacity based on the relevant evidence in your case record."). Relevant evidence includes "medical records, observations made during formal medical examinations, descriptions by others." Fargnoli, 247 F.3d at 41. Although the ALJ does not need to reference every piece of evidence in the record, Fargnoli, 247 F.3d at 42, he must provide a "clear and satisfactory" explanation of his decision. See, e.g., id. at 41; Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000); Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981); see also Salles, 229 F. App'x 140, 146 (3d Cir. 2007) (not precedential) ("When making credibility findings, the ALJ must indicate which evidence he rejects and which he relies upon as the basis for his findings."). Otherwise, the district court is unable to meaningfully review the decision and determine "if significant probative evidence was not credited or simply ignored." See Fargnoli, 247 F.3d at 42 (quoting Burnett, 220 F.3d at 121).
The determination of a claimant's RFC is an administrative decision made by the ALJ. See 20 C.F.R. § 404.1546(c).
Furthermore, while the ALJ has the authority to weigh and evaluate conflicting relevant evidence, he "cannot reject evidence for no reason or for the wrong reason." Plummer, 186 F.3d at 429 (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)).
Medical opinion evidence is relevant evidence that the ALJ must evaluate and weigh when assessing a claimant's RFC. 20 C.F.R. § 404.1527(c). The administrative record here contains two relevant medical opinions, both from the state agency reviewing consultant, John Gavazzi, Psy.D. R. 32-36, 42-47. As part of the initial evaluation of Ms. Maher's claim in September 2016, Dr. Gavazzi reviewed the record and opined on the impact of her mental health impairments. R. 32-36. He deemed her affective and anxiety disorders to be severe, with mild limitations on her activities of daily living; moderate difficulties with maintaining social functioning and concentration, persistence, and pace; and no repeated episodes of decompensation for an extended duration. R. 32. He specifically noted that Ms. Maher had limitations with respect to understanding and memory, sustained concentration and persistence, and social interaction. R. 33. In particular, he found that:
The rules regarding the evaluation of opinion evidence have changed, effective March 27, 2017. Ms. Maher's case arose under the old regulations. See 20 C.F.R. § 404.1520c.
[Ms. Maher] can understand, retain, and follow simple job instructions, i.e., perform one- and two-step tasks. [She] can perform simple, routine, repetitive tasks in a stable environment.R. 34-35 (emphasis added). For support, Dr. Gavazzi relied on medical evidence that established impairments of a mood disorder and PTSD, a lack of hospitalizations, and the fact that Ms. Maher was both taking psychotropic agents and receiving treatment through the VA. R. 35.
* * *
[Ms. Maher] can make simple decisions. [She] would be able to maintain regular attendance and be punctual. [She] is able to carry out very short and simple instructions.
* * *
[Ms. Maher] struggles with social skills. [She] communicates clearly, relates appropriately to familiar others, and behaves predictably in most social situations. [She] is able to maintain socially appropriate behavior and can perform the personal care functions needed to maintain an acceptable level of personal hygiene.
Over a year later, in December 2017, Dr. Gavazzi again reviewed the record and opined on the continued impact of Ms. Maher's impairments. R. 42-47. He characterized Ms. Maher's severe impairments as a depressive, bipolar, and related disorder; a personality and impulse-control disorder; and a trauma and stressor related disorder. R. 42. He then repeated the findings quoted above, adding the following:
Available data suggests that [Ms. Maher] has adequate ability to respond to basic work setting changes. [She] appears to have adequate ability to take appropriate precautions in hazardous situations and utilize transportation. [She] has adequate ability to organize and set simple goals.R. 42-46. He further noted that the evidence established that Ms. Maher suffered from following symptoms: "flashbacks, intrusive thoughts, decreased concentration and mood lability." R. 47. He determined that these symptoms were "partially consistent" with Ms. Maher's activities of daily living, clinical record, expectations with treatment, and functioning. Id.
After summarizing these findings, the ALJ ultimately gave "significant" weight to Dr. Gavazzi's opinions. R. 24-25. The ALJ reasoned:
Specifically, the ALJ characterized Dr. Gavazzi's findings as follows:
. . . John Gavazzi Psy.D., the State agency psychological consultant who reviewed the record in September 2016 and again in December 2017, opined that [Ms. Maher] can understand, retain, and follow simple job instructions—i.e. perform one- and two-step tasks; perform simple, routine, repetitive tasks in a stable environment; make simple decisions; maintain regular attendance and be punctual; carry out very short and simple instructions; communicate clearly, relate appropriate [sic] to familiar others, and behave predictably in most social situations; maintain socially appropriate behavior; perform the personal care functions needed to maintain an acceptable level of personal hygiene; adequately respond to basic work setting changes; adequately take appropriate precautions in hazardous situations and utilized [sic] transportation; and adequately organized [sic] and set simple goals.R. 24 (citation omitted) (emphasis added).
The conclusions reached by the State agency psychological consultant generally support the findings of the undersigned. Although this physician was non-examining, and therefore his opinions do not as a general matter deserve as much weight as those of examining or treating physicians, these opinions do deserve some weight, particularly in a case like this in which there exist a number of other reasons to reach similar conclusions, as explained throughout this decision. The opinions of the State agency psychological consultant are consistent with and supported by the medical evidence,
as detailed above and specifically including evidence received into the record after the opinion was rendered, and the claimant's admitted abilities, as previously discussed.Id.
Relying on Dr. Gavazzi's opinion, and the other record evidence, the ALJ concluded that despite her impairments, Ms. Maher could perform work involving "simple, routine, repetitive tasks with few, if any, work place changes; no interaction with the public; and only occasional interaction with coworkers and supervisors." R. 21. Missing from the RFC, however, was a limitation to "one- and two- step tasks." Id. More importantly, the ALJ failed to explain why this limitation—a limitation explicitly found by the credible state-agency reviewing consultant—was not incorporated into the RFC. This lack of explanation was error.
The VE's testimony that the ALJ ultimately relied on to deny Ms. Maher's claims was in response to a hypothetical question that encompassed this RFC verbatim. See R. 880-81. For a VE's testimony to be considered "substantial evidence," the ALJ's hypothetical question "must reflect all of a claimant's impairments that are supported by the record." Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d. Cir. 1987). In other words, the ALJ "must accurately convey to the vocational expert all of a claimant's credibly established limitations." Rutherford, 399 F.3d at 554.
Faced with a similar issue, the court in Harden v. Commissioner of Soc. Sec., No. 13-906, 2014 WL 4792294 (W.D. Pa. Sept. 24, 2014), also remanded for further explanation. I find the court's reasoning to be persuasive here:
The RFC and hypothetical here are not supported by substantial evidence because it is not clear whether the omission of any limitation to one or two-step jobs was intentional or not. While the ALJ was by no means required to simply adopt all of the limitations found by the state reviewing agent, he was required to explain his basis for rejecting them if he chose to do so, particularly in light of the fact that he expressly gave significant weight to this opinion in formulating the RFC and hypothetical. It is possible that the ALJ felt that limiting Plaintiff to unskilled work involving only routine and repetitive instructions and tasks adequately
addressed any limitation to one or two-step tasks. However, this limitation does not account for the complexity of tasks that a claimant can perform.Harden, 2014 WL 4792294 at * 4.
For support, the Harden court relied on Bobbitt v. Colvin, No. 13-1320, 2014 WL 2993738 (D. Ore. July 1, 2014). Harden, 2014 WL 4792294 at *5. In that case, as in Harden and here, the ALJ restricted "the claimant to 'simple routine tasks,' without addressing the fact that the state agency medical consultants had opined that the claimant's symptoms would limit her to 'short and simple instructions of 1-2 steps.' Id. (citing to Bobbitt, 2014 WL 2993738 at *8). Remanding the case, the Bobbitt court held that "a limitation to simple, routine tasks did not adequately encompass a limitation to jobs with one or two-step instructions." Id. (citing to Bobbitt, 2014 WL 2993738 at *9). According to Bobbitt, the difference between "simple, routine tasks" and "one- or two-step instructions" was "relevant to the determination as to whether the VE's opinion regarding the occupations that the claimant could perform was consistent with the Dictionary of Occupational Titles ('DOT')." Id. In particular, the court pointed to the fact that a DOT job with a reasoning level of one "requires only a commonsense understanding to carry out simple one or two-step instructions and to deal with standardized situations with occasional or no variables in or from these situations encountered on the job." Id. (emphasis added). In contrast, a DOT job with a reasoning level two "requires a commonsense understanding to carry out detailed but uninvolved written or oral instructions and to deal with problems involving a few concrete variables in or from standardized situations." Id. (emphasis added) (citing to Bobbitt, 2014 WL 2993738 at *8-9).
While the Harden court deliberately refrained from deciding whether claimants limited to one- and two-step tasks are able to perform jobs with a reasoning level of two, it found that a such a restriction was relevant and may impact the VE's testimony. Id. ("[W]hile the VE's opinion may remain unchanged even with this additional restriction, that is left for the VE to decide."). The court, therefore, characterized the record evidence as "potentially conflicting," meaning the ALJ must "explain which evidence he accepts and rejects and the reasons for his determination." Id. (citing to Cruz v. Comm'r of Soc. Sec., 244 F. App'x 475, 479 (3d Cir. 2007)). Although the ALJ is "not necessarily obligated to accept this additional limitation," he is not allowed to ignore it. Id. ("It is the need for further explanation that mandates the remand on this issue.").
The Commissioner, in part, argues that a position with a reasoning level of two does not conflict with a limitation to one- and two-step tasks, pointing to Thompson v. Astrue, No. 07-2989, 2009 WL 7007996, at *12 (E.D. Pa. Jan. 30, 2009). Def. Br. at 10. However, I agree with the Harden court that this is a decision best left to a qualified VE on remand (if the ALJ in fact accepts this added limitation).
This analysis applies to Ms. Maher's case. Like the cases discussed above, the state agency reviewing consultant here concluded that Ms. Maher was able to understand, retain, and follow "simple job instructions," clarifying that he meant "one- and two-step tasks." R. 34-35. He then also noted that she was able to perform "simple, routine, repetitive tasks in a stable environment." Id. As explained in Harden, these restrictions may conflict with the ALJ findings and the VE testimony. Accordingly, the ALJ was obligated to explain whether he accepted or rejected this narrower limitation (to one- and two-step tasks) and the rationale for his decision. Looking at the record and the opinion as a whole, I am unable to readily discern the ALJ's reason for not limiting Ms. Maher to one- and two-step tasks, especially considering Dr. Gavazzi used this narrower definition in his opinion. Nor is it clear whether the ALJ rejected the limitation or simply (and improperly) ignored it. Because this restriction (if credited) may have impacted the VE's testimony, the ALJ's error was not harmless.
I therefore respectfully recommend that this matter be remanded back to the Commissioner for further proceedings.
B. The ALJ also erred by not properly considering the VA disability ratings included in the record.
Next, Ms. Maher contends that the ALJ's consideration of the VA disability ratings was flawed. Pl. Br. at 7-11. In particular, she takes issue, again, with the ALJ's lack of discussion explaining how the rating was considered and any weight it was given. Id. In response, the Commissioner argues that the ALJ properly considered the ratings and therefore fulfilled his obligations under the law. Def. Br. at 11-13. For the reasons discussed below, I find that the ALJ's treatment of the VA disability ratings was insufficient.
Disability determinations from another governmental agency are not binding on the Social Security Administration. 20 C.F.R. § 404.1504. While not binding, the question remains about how much weight should be afforded to these decisions. The Third Circuit has advised that VA disability determinations are entitled to "substantial weight." Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985); see also Sell v. Barnhart, No. 02-8617, 2003 WL 22794702, at *3 (E.D. Pa. Nov. 17, 2003) (Robreno, J.). Substantial weight, at a minimum, means that the ALJ must consider the VA disability rating and "provide [an] explanation sufficient for a 'subsequent reviewer to follow the adjudicator's reasoning.'" McCleary v. Colvin, 187 F. Supp. 3d 497, 541-42 (M.D. Pa. 2016) (citing to SSR 06-03P, 2006 WL 2329939 (S.S.A. Aug. 9, 2006)); see also Glover v. Astrue, No. 10-901, 2011 WL 1562267, at *8-9 (E.D. Pa. March 31, 2011) (Strawbridge, J.); Jones v. Barnhart, No. 03-660, 2005 WL 2033383, at *8-9 (E.D. Pa. Aug. 23, 2005) (Baylson, J.).
Although the regulations have since been updated for claims filed after March 27, 2017, Ms. Maher filed her claim before that date.
"Finally, Kane notes that the ALJ should have considered the importance of a Veterans Administration determination that he is disabled. Such a determination by another government agency is entitled to substantial weight." Kane, 776 F.2d at 1135 (citing to Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980)).
To support this proposition, the Kane decision cited to a case involving a doctor's disability finding for another agency. Kane, 776 F.2d at 1135 (citing to Lewis, 616 F.2d at 76). At least one court has pointed to this difference to distinguish Kane from cases, such as here, involving VA disability evaluations that were not explicitly completed by a doctor. McCleary v. Colvin, 187 F. Supp. 3d 497, 541 (M.D. Pa. 2016). Nevertheless, that court still found that the ALJ was required to consider the VA disability rating, meaning the ALJ had to sufficiently explain his evaluation of the disability rating. Id. at 541-42.
The ALJ failed to do that here. The VA found Ms. Maher's combined service-connected disability rating to be 90%. R. 513-14; see also R. 483. Individually, the VA deemed her PTSD 70% disabling and her bulimia nervosa 50% disabling. R. 513-14; see also R. 281-82, 479-81. Although the ALJ was required to consider these ratings and sufficiently explain his evaluation of them, the entirety of his discussion was as follows:
It also appears that the VA determined that Ms. Maher had a 10% disability rating based on a lumbosacral or cervical strain and a 20% disability rating based on another ailment. See R. 281. --------
The undersigned notes that this record contains VA disability ratings. For claims filed prior to March 27, 2017, VA disability ratings are not classified as opinion evidence; however, while not a medical opinion that must be evaluated under 20 CFR 404.1527, adjudicators are required to consider all evidence received from the VA, including the VA disability decision and rating. Evidence from the VA has been reviewed and considered in this case, as discussed in detail above.R. 25-26 (citations omitted). Despite the indication to the contrary, at no point in the decision did the ALJ discuss the VA disability ratings. The ALJ's discussion need not have been lengthy but merely sufficient for a reviewing court to identify. See McCleary, 187 F. Supp. 3d at 541-42. The above-quoted paragraph does not meet that standard. Not only does the ALJ not explain his evaluation of the ratings, he failed to even acknowledge the specific percent ratings Ms. Maher received from the VA. It is unclear whether the ALJ entirely rejected the rating or accepted it in part. Nor can I discern whether the reason for any rejection was based on a finding that there is a significant difference between the VA and social security's regulatory scheme or some other reason. Such a lack of explanation was error, as it prevents a reviewing court from meaningfully assessing the ALJ's decision.
The Commissioner relies on Morgan v. Astrue, No. 08-2133, 2009 WL 3541001, at *6-8 (E.D. Pa. Oct. 30, 2009), to support his argument that the ALJ sufficiently considered the VA disability rating because he thoroughly analyzed the medical evidence the rating was based upon. Def. Br. at 11-13. I do not find the Commissioner's argument convincing, as the Morgan decision is distinguishable. Morgan involved a worker's compensation decision, not a VA disability rating. Morgan, 2009 WL 3541001, at *6-8. Significantly, the worker's compensation decision was based on a determination that Morgan could not return to her existing job and said nothing about Morgan's ability to do any work in the national economy. Thus, the ALJ's decision, which found that Morgan was not able to return to her previous work, was not in conflict with the worker's compensation decision. Id. at 8. Second, the court noted that the ALJ had considered in detail the two doctors' opinions that formed the heart of the dispute and explained why the ALJ made a different credibility determination than the worker's compensation court. Id. at *8. Unlike Morgan, it is not clear from the "face of the record" that the VA disability rating and the ALJ's RFC are not conflicting, and as explained above, the ALJ's discussion, here, was insufficient for me to understand his evaluation of the rating.
Accordingly, I respectfully recommend that this matter be remanded.
RECOMMENDATION
Based upon the discussion above, I respectfully recommend that Ms. Maher's request for review be granted, that the final decision of the Commissioner be reversed, and that the case be remanded to the Commissioner for further proceedings consistent with this recommendation.
Parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with the report and recommendation. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and explain the basis for the objections. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within 14 days of the date the objections are served.
BY THE COURT:
s/Richard Lloret
RICHARD A. LLORET
U.S. Magistrate Judge