Dunham v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER: it is ORDERED that, pursuant to sentence four of 42 USC 405(g), the decision of the Commissioner is REVERSED and the case is REMANDED to the Commissioner for additional proceedings consistent with this opinion. Signed by Honorable Judge Gray M. Borden on 1/19/2017. (Copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
NATHAN DANIEL DUNHAM,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO.: 2:15-cv-622-GMB

MEMORANDUM OPINION AND ORDER
Plaintiff Nathan Daniel Dunham commenced this action on January 11, 2016,
seeking judicial review of a final adverse decision of the Commissioner of Social
Security denying his application for a period of disability and disability insurance
benefits under Title II of the Social Security Act. Doc. 1. Dunham alleges disability as of
October 3, 2012 due to various back and right upper extremity problems, bladder issues,
migraine headaches, and mental impairments. Doc. 15 at 2. On April 21, 2015, following
a hearing at which Dunham testified, the Administrative Law Judge (“ALJ”) issued an
adverse decision finding that Dunham was not disabled within the meaning of the Social
Security Act. Doc. 16-2. On June 26, 2015, the Appeals Council denied Dunham’s
request for review, and the ALJ’s decision became the final decision of the
Commissioner. Doc. 16-2.
The case is ripe for review pursuant to 42 U.S.C § 405(g). The parties have
consented to the entry of a final judgment by the undersigned United States Magistrate

Judge pursuant to 28 U.S.C. § 636(b) and Rule 73.1 of the Local Rules for the United
States District Court for the Middle District of Alabama. Docs. 10 & 11. Based upon a
review of the record and the relevant authority, the court finds that, for the reasons stated
below, the Commissioner’s decision is due to be REVERSED and this case
REMANDED to the Commissioner for further proceedings consistent with this opinion.
I. STANDARD OF REVIEW
The court reviews a social security case to determine whether the Commissioner’s
decision “is supported by substantial evidence and based upon proper legal standards.”
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court “may not decide the
facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner,” but rather it “must defer to the Commissioner’s decision if it is
supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997)
(internal quotation marks omitted). Indeed, the court must affirm the Commissioner’s
decision “if it is supported by substantial evidence and the correct legal standards were
applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997)).
“Substantial evidence is more than a scintilla—i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.”
Jones ex rel. T.J.J. v. Astrue, 2011 WL 1706465, at *1 (M.D. Ala. May 5, 2011) (citing
Lewis, 125 F.3d at 1440). The court must scrutinize the entire record to determine the
reasonableness of the decision reached. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir.
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1987). “If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as a finder of
fact, and even if the court finds that the evidence preponderates against the
Commissioner’s decision.” Jones, 2011 WL 1706465 at *2 (citing Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991)). The court will reverse the Commissioner’s
decision on plenary review if the decision applies incorrect law, or if the decision fails to
provide the court with sufficient reasoning to determine that the Commissioner properly
applied the law. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991); Jones,
2011 WL 1706465 at *2 (citing Keeton v. Dep’t of Health & Human Servs., 21 F.3d
1064, 1066 (11th Cir. 1994)).

There is no presumption that the Commissioner’s

conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show 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. §§ 416(i)
& 423(d)(1)(A). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrated by
medially acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).

Dunham bears the burden of proving that he is disabled, and he is

responsible for producing evidence to support his claim. Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003).
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Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a) (2012).

Specifically, the Commissioner must

determine in sequence:
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer to
any of the above questions leads either to the next question, or, on steps three and five, to
a finding of disability. A negative answer to any question, other than step three, leads to
a determination of ‘not disabled.’” Id. at 1030 (quoting 20 C.F.R. §§ 416.920(a)−(f)).
“Once the finding is made that a claimant cannot return to prior work the burden of proof
shifts to the Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d
1553, 1559 (11th Cir. 1995) (citing Gibson v. Heckler, 762 F.2d 1516 (11th Cir. 1985)).
III. DISCUSSION
Dunham presents two issues for the court’s review: (1) whether the ALJ erred by
failing to give “great weight” to the 100% service-connected disability rating assigned to
Dunham by the Department of Veterans Affairs (“VA”); and (2) whether the ALJ erred
by failing to give proper weight to the opinions of two of Dunham’s treating physicians,
Drs. Maria Rosario Cumagun and Michael G. Gibson. For the reasons that follow, the
court finds that the ALJ’s decision is due to be reversed and remanded on the first issue
of whether the ALJ assigned proper weight to the 100% service-connected disability

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rating assigned to Dunham by the VA. In light of this remand, the court pretermits a
discussion and decision on the second issue of whether the ALJ properly considered the
opinions of Dunham’s treating physicians, Drs. Cumagun and Gibson.
“The SSA regulations provide a decision by any nongovernmental or
governmental agency concerning whether an individual is disabled, based on that
agency’s own rules, does not constitute an SSA decision regarding whether that
individual is disabled.” Ostborg v. Comm’n of Soc. Sec., 610 F. App’x 907, 914 (11th
Cir. 2015) (citing 20 C.F.R. § 404.1504). Still, a VA rating, while not binding on the
Commissioner, “is evidence that should be considered and is entitled to great weight.”
Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. 1981);1 see also Brady v. Heckler,
724 F.2d 914, 921 (11th Cir. 1984).
There is no dispute that the VA assigned Dunham a service-connected disability
rating of 100% on January 15, 2014. Doc. 16-5. It is also apparent to the court, based
upon a review of the ALJ’s thorough decision, that the ALJ carefully considered
Dunham’s claims. Nevertheless, with respect to Dunham’s VA rating, the ALJ gave it
“little weight,” stating
The disability determination processes utilized by the Department of
Veterans Affairs and the Social Security Administration are fundamentally
different. Department of Veterans Affairs does not make a function-byfunction assessment of an individual’s capabilities (i.e., determine the
claimant’s residual functional capacity) or determine whether the claimant
is able to perform either his past relevant work or other work that exists in
significant numbers in the national economy as is required by the
Regulations. Thus, a disability rating by the Department of Veterans
1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the court adopted as binding
precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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Affairs is of little probative value in these proceedings. Therefore, the
undersigned has given that rating little weight.
Doc. 16-2 at 24. The court finds that the ALJ erred in reaching this decision.
As stated above, even though a VA decision is not binding on the Commissioner,
it is evidence that should be given “great weight.” See, e.g., Brady, 724 F.2d at 921; see
also 20 C.F.R. § 404.1504 (providing that other government agency decisions about a
person’s disability status based on that agency’s own rules are not binding on the
Administration). Here, the ALJ expressly stated that he gave Dunham’s VA disability
rating “little weight,” unequivocally demonstrating to the court that the ALJ did not
follow proper legal standards in resolving Dunham’s disability claim because he failed to
afford Dunham’s VA disability rating “great weight.”
This very issue was addressed recently by this court and the Eleventh Circuit
Court of Appeals. In Gray v. Colvin, an ALJ considered a 100% disability rating from
the VA but ultimately assigned it “little weight.” 2016 WL 5660686, at *1-4 (M.D. Ala.
Sept. 28, 2016). The district court held that by assigning the claimant’s VA disability
rating “little weight,” the ALJ committed “legal error in and of itself” sufficient to
warrant remand to the Commissioner to reconsider the claimant’s disability after
affording “great weight” to the VA’s disability rating. Id. at *4. The Eleventh Circuit
reached a similar conclusion in Brown-Gaudet-Evans v. Commissioner of Social Security,
2016 WL 7157976, at *1 (11th Cir. Dec. 8, 2016). In that case, the ALJ expressly
considered the VA rating but gave it “little weight” because the VA employs different
criteria for deciding whether an individual is disabled. Id. Finding that the ALJ erred in

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reaching that decision, the court explained that although “[i]t is not disputed that the
VA’s disability determination relies on different criteria than the SSA’s determination . . .
that does not mean that the ALJ can . . . give it little weight.” Id. (internal quotation
marks omitted).
The court finds both of these cases persuasive. The ALJ gave Dunham’s 100%
service-connected disability rating “little weight” for no reason other than that the VA
uses different criteria than the SSA to determine disability. This fact alone is not a
specific reason that the ALJ can give for discounting the weight assigned to a VA
disability determination.2 See Hogard v. Sullivan, 733 F. Supp. 1465, 1468 (M.D. Fla.
1990) (“The ALJ’s perfunctory rejection of the VA disability rating as based on different
criteria from Social Security disability determinations does not indicate that he accorded
it great weight as required by the case law.”). Consequently, because the ALJ assigned a
legally insufficient weight to Dunham’s VA disability rating, the ALJ’s decision denying
Dunham benefits must be reversed.
“On remand, the ALJ is not required to give the VA’s disability determination
controlling weight.” Id. However, in determining whether Dunham is disabled, the ALJ
“must seriously consider and closely scrutinize the VA’s disability determination and
2

The Commissioner argues that the ALJ gave specific reasons for discounting the weight given to
Dunham’s VA disability rating when he noted in his decision that the VA, unlike the SSA, does not
determine an individual’s residual functional capacity, or whether an individual is able to perform past
relevant work or work that exists in significant numbers in the national economy. Doc. 15. In reality,
however, those specific “reasons” are simply more detailed examples of how the criteria used to
determine disability differs between the VA and the SSA, which is the only reason given by the ALJ for
discounting Dunham’s VA disability rating. Cf. Burden v. Colvin, 2015 WL 1245195 at *6 (N.D. Ala.
Mar. 18, 2015) (finding that the ALJ, who highlighted multiple specific contradictions between VA
disability rating and the evidence contained in the claimant’s medical records, provided sufficient reasons
for assigning little weight to VA disability rating).

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must give specific reasons,” apart from the differing disability standards used by the VA
and the SSA, if the ALJ discounts that determination. Id. (citing Rodriguez, 640 F.2d at
686).
Finally, the court declines Dunham’s request to remand this case with an award of
benefits. Doc. 12.

Because the VA’s disability rating is not binding on the

Commissioner, see Brady, 724 F.2d at 921, it is not a certainty that Dunham is entitled to
an award of benefits based solely due to the VA’s determination that he is 100% disabled.
The court will not award benefits where it is possible that the ALJ might reach an adverse
decision even after assigning “great weight” to the VA’s disability rating.
IV. CONCLUSION
Accordingly, it is ORDERED that, pursuant to sentence four of 42 U.S.C.
§ 405(g), the decision of the Commissioner is REVERSED and the case is REMANDED
to the Commissioner for additional proceedings consistent with this opinion.
A final judgment will be entered separately.
DONE this 19th day of January, 2017.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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