JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Quincy James ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew M. Saul ("Commissioner") denying his application for a period of disability and disability insurance benefits ("DIB") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 18, 20. Both filed memoranda in support of their respective motions. D.E. 19, 21. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See D.E. 22; 15 July 2019 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.
Plaintiff filed an application for DIB on 10 March 2017, alleging a disability onset date of 1 December 2016. Transcript of Proceedings ("Tr.") 25. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 25. On 2 November 2017, a hearing was held before an administrative law judge ("ALJ") at which plaintiff, who was represented by a non-attorney representative, and a vocational expert testified. Tr. 25, 75-109. On 20 April 2018, the ALJ issued a decision denying plaintiff's application. Tr. 25-36.
Plaintiff timely requested review by the Appeals Council. Tr. 219. On 20 August 2018, the Appeals Council denied the request for review (Tr. 1), after finding that additional evidence submitted by plaintiff (see Tr. 11-21; 41-74) either "does not show a reasonable probability that it would change the outcome of the decision" or "does not relate to the period at issue" (Tr. 2). At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981.
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
Plaintiff was 42 years old on the alleged disability onset date and the date of the hearing, and 43 years old on the date of issuance of the ALJ's decision. See Tr. 34 ¶ 7. The ALJ found that he has at least a high school education (Tr. 34 ¶ 8) and past relevant work as a personnel clerk (Tr. 34 ¶ 6).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 1 December 2016, the alleged disability onset date. Tr. 27 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: degenerative disc disease; degenerative joint disease; osteoarthritis of the bilateral hips, knees, ankles, and feet; chronic pain syndrome; migraine headaches; major depressive disorder; anxiety/panic disorder; personality disorder; posttraumatic stress disorder ("PTSD"); and alcohol abuse. Tr. 27 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 28 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of work at the light exertional level, as follows:
Tr. 29 ¶ 5.
Based on her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform his past relevant work. Tr. 34 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of collator operator, routing clerk, and marker. Tr. 35-36 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 1 December 2016, through the date of the decision, 20 April 2018. Tr. 36 ¶ 11.
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Where, as here, additional evidence is submitted to the Appeals Council before it denies the claimant's request for review of the ALJ's decision, the court must review the record as supplemented in determining whether substantial evidence supports the Commissioner's findings. See Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (citing Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded, or in the alternative, that the case should be remanded for a new hearing on the grounds that the ALJ erred by: not giving proper weight to the Department of Veterans Affairs ("VA") disability rating of plaintiff; not adequately accounting in the RFC determination for the moderate limitations the ALJ found plaintiff to have in concentrating, persisting, or maintaining pace at step three of the sequential analysis (see Tr. 29 ¶ 5)
In Bird v. Comm'r of Soc. Sec. Admin., the Fourth Circuit ruled that the Social Security Administration ("SSA") must accord substantial weight to a VA disability rating. 699 F.3d 337, 343 (4th Cir. 2012). The court based its ruling on the similarities in the disability programs of the two agencies:
Id. The court, though, also recognized that exceptions to attribution of substantial weight may be appropriate in particular cases: "[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability, and because the effective date of coverage for a claimant's disability under the two programs likely will vary, an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.
In Woods v. Berryhill, the Fourth Circuit ruled that in order to demonstrate that it is "appropriate" under Bird to give less than substantial weight to the disability ratings of an agency other than the SSA, an ALJ must give "persuasive, specific, valid reasons for doing so that are supported by the record." 888 F.3d 686, 692 (4th Cir. 2018) (internal quotation marks omitted). Although the disability decision before the court in Woods was from a state agency, the court relied on cases from other circuits involving VA disability ratings and was expressly interpreting the standard established in Bird, which, as discussed, involved a VA disability decision. See id. (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (described parenthetically by the Fourth Circuit as "describing standard for VA decisions"); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (per curiam) (described parenthetically by the Fourth Circuit as "explaining that ALJs need not give great weight to VA disability determinations `if they adequately explain the valid reasons for not doing so'"). If an ALJ fails to adequately explain his attribution of less than substantial weight to VA disability ratings, meaningful review is precluded and the case must be remanded for further administrative proceedings. See Woods, 888 F.3d at 692-93 (citing Radford, 734 F.3d at 295).
A 26-page letter from the VA to plaintiff dated 16 February 2017 set out the VA disability ratings for plaintiff. Tr. 221-45. The VA found plaintiff to have an overall or combined rating of 100% effective 1 December 2016. Tr. 238. The composite ratings for this overall rating, also effective 1 December 2016, are: 10% for osteoarthritis of the right knee with lateral medial tear (Tr. 223); 50% for plus planus of the bilateral feet with heel spurs and calluses (Tr. 223); 10% for pseudofolliculitis barbae (Tr. 224); 10% for atopic dermatitis (Tr. 224-25); 40% for degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome, spinal stenosis, degenerative disc disease, and spondylosis (Tr. 225); 10% for a painful and tender scar on the left great toe (Tr. 225-26); 30% for migraine headaches (Tr. 227); 10% for osteoarthritis of the right hip with impairment of the thigh (Tr. 227-28); 10% for post-operative left ankle with osteoarthritis and lateral collateral ligament and deltoid sprain (Tr. 228); 30% for tinea capitis (Tr. 228-29); 50% for obstructive sleep apnea (Tr. 230); 50% for major depressive disorder with alcohol use secondary to depressive disorder (Tr. 231); 10% for gastroesophageal reflux disorder and irritable bowel syndrome (Tr. 233); 10% for osteoarthritis of the left hip with impairment of the thigh (Tr. 234); 50% for sinusitis (Tr. 235); and 10% for allergic rhinitis (Tr. 235-36). Each of the composite ratings is accompanied by findings supporting it.
The ALJ gave little weight to the 100% disability rating and the "permanent disability findings," presumably referring to the findings given for each of the composite ratings. Tr. 33 ¶ 5. She stated:
Tr. 33 ¶ 5.
Plaintiff contends that the ALJ erred in not giving the VA combined rating, and thereby implicitly the individual ratings making up the combined rating, substantial weight pursuant to Bird. The court agrees that the ALJ erred. While Bird allows exceptions from the presumptive allocation of substantial weight to VA ratings, the ALJ falls far short of providing a sufficient explanation as to why such an exception is warranted.
One of the two sets of reasons cited by the ALJ for discounting the VA rating consists simply of recitations of purported differences between the standards used by the VA and SSA in the evaluation of disability claims. Again, the ALJ stated:
Tr. 33 ¶ 5. If these purported differences in themselves were deemed sufficient to discount VA disability ratings, the presumptive standard under Bird that such decisions should be accorded substantial weight would be gutted. See, e.g., McNeill v. Berryhill, No. 5:15-CV-646-KS, 2017 WL 1050105, at *3 (E.D.N.C. 20 Mar. 2017) ("General differences between VA disability ratings and Social Security disability determinations are not, however, a sufficient basis for discrediting VA disability ratings. Such differences exist in all cases; and allowing an ALJ to discount VA disability ratings for this reason would, therefore, eviscerate the presumptive standard established in Bird." (citing Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D.N.C. 10 Aug. 2015))), mem. & recomm. adopted, 2015 WL 5089060 (27 Aug. 2015).
The other set of reasons given by the ALJ for discounting the VA rating—the ALJ's inability to determine what evidence was used to reach the conclusion of disability and thereby the extent to which such evidence was similar to the evidence before the ALJ—is also problematic. The rating decision actually identifies the evidence upon which it is based:
In making our decision, we considered:
Tr. 243.
It is therefore unclear, without further explanation, in what sense the ALJ was unable to "tell what medical or vocational evidence was used to reach the conclusion on disability." Tr. 33 ¶ 5. Moreover, the manner in which the rating decision identified the evidence considered appears to the court to be typical for VA disability rating decisions. The ALJ's characterization of the identification here as deficient would therefore appear to be a basis for discounting VA rating decisions generally and therefore violative of Bird.
There is no question that the ALJ identified some of the evidence considered by the VA, namely, the note on the Compensation and Pension ("C&P") mental examination of plaintiff (Tr. 1058-64) and the 78-page note on the C&P physical examination of plaintiff (Tr. 1064-1141). The ALJ expressly assessed these examinations in her decision. Tr. 33 ¶ 5. Notably, the ALJ accorded these examinations "[p]artial weight." Tr. 33 ¶ 5. It is not apparent why these examinations were accorded partial weight while the VA disability rating decision which relied upon them, in part, was accorded little weight, which is presumably less than partial weight.
In addition, the record contains copious Department of Defense ("DOD") and VA medical records that fall within the date range given for the medical records that were considered in making the VA rating decision. Specifically, the date range for the medical records considered in making the rating decision is given as 1 August 2002 to 5 January 2017. Tr. 243. The DOD and VA medical records before the ALJ cover the period from 24 November 2004 to 17 October 2017. See, e.g., Tr. 347-966 (Ex. 1F; 24 Nov. 2004 to 27 Mar. 2017); 967-1181 (Ex. 2F; 13 Oct. 2016 to 29 Mar. 2017); 1182-1224 (Ex. 3F; 24 Nov. 2004 to 8 May 2017); 1225-1465 (Ex. 4F; 3 Jan. 2017 to 30 May 2017). All but 25 pages of the 1,485 pages of medical records before the ALJ are DOD and VA medical records, reflecting plaintiff's reportedly having served in the Army from 18 August 1993 until 30 November 2016. See, e.g., Tr. 1047. Particularly in light of the length of plaintiff's military service and the volume and seeming comprehensiveness of the DOD and VA medical records before the ALJ, it is unclear on what basis the ALJ appears to believe that the DOD and VA medical records before her that fall within the range given in the disability rating decision may not have been the same medical records in that range considered in making the disability rating decision. While the medical records before the ALJ do not extend back to 2002, as the medical records considered in making the VA rating decision evidently did, they certainly seem to extend back sufficiently far to enable evaluation of the VA disability rating decision. The ALJ did not find otherwise.
Curiously, in her discussion of the VA rating decision, the ALJ cites only three exhibits composed of medical records—Exhibits 2F, 4F, and 7F (Tr. 1468-1594). While Exhibits 2F and 4F contain medical records in the range given in the VA rating decision for the medical records considered in making it, Exhibit 7F does not. It includes medical records from 5 June 2017 to 1 September 2017, all postdating the range given in the rating decision. The ALJ did not cite other exhibits that do contain medical records in the range given in the rating decision—namely, Exhibits 1F and 3F. The citation scheme used by the ALJ in her assessment of the VA rating decision reinforces the court's concern about the ALJ's discounting of the rating based on her purported inability to identify the medical records considered in making it.
There are certainly factors that tend to lend weight to the VA disability rating decision. These include the fact that many of the same impairments that are the subject of the VA composite ratings were found by the ALJ to be severe impairments, including degenerative disc disease, osteoarthritis of the hilateral hips, migraine headaches, and major depressive disorder. See Tr. 27 ¶ 3; 225, 227-28, 231, 234. Moreover, the effective date of the VA rating decision and the alleged onset of disability is the same—1 December 2016. See Tr. 25 (disability onset date); 223-25, 227-28, 230-31, 233-35 (effective date of composite ratings). Notably, as previously indicated, Bird cited a disparity in "the effective date of coverage for a claimant's disability" as a reason for limiting the weight accorded VA ratings. 699 F.3d at 343.
The court concludes that the failure by the ALJ to adequately explain her attribution of less than substantial weight to the VA rating precludes meaningful review of her decision and requires remand. See Woods, 888 F.3d at 692; Radford, 734 F.3d at 295.
Independent of this consideration, the failure by the ALJ to properly evaluate the VA's rating was not harmless. See, e.g., Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)); Huffman v. Colvin, No. 1:10CV537, 2013 WL 4431964, at *4 & n. 7, 7 (M.D.N.C. 14 Aug. 2013). Proper assessment of the VA's evaluation of plaintiff could have led to a materially different outcome in various aspects of the ALJ's analysis, including her assessment of plaintiff's statements regarding his impairments, which she discounted (Tr. 31 ¶ 5), and her determination of plaintiff's RFC. Remand of this case is therefore required on this additional ground of harmful error.
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 18) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 20) for judgment on the pleadings he DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case, matters that are for the Commissioner to resolve.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 2 December 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
