Barker v. Berryhill
Filing
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MEMORANDUM OPINION AND ORDER, for the reasons discussed, the decision of the Commissioner will be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. 405(g) so that the Commissioner can conduct additional proceedings consistent with this opinion, as further set out in order. Signed by Honorable Judge Gray M. Borden on 10/15/18. (djy, ) Modified on 10/15/2018 to clarify text to reflect as also mailed to SSA Chief Judge & SSA Office of Hearings and Appeals (qc/djy, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOSEPH DEKALB BARKER, JR.,
)
)
Plaintiff,
)
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v.
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)
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security, )
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Defendant.
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CASE NO. 2:17-cv-365-GMB
[wo]
MEMORANDUM OPINION AND ORDER
Joseph Dekalb Barker applied for disability insurance benefits under Title II of the
Social Security Act (“the Act”) alleging a disability date of February 15, 2012. R. 23 &
141.
The application was initially denied. R. 71.
A hearing was held before an
Administrative Law Judge (“ALJ”). R. 39–56. The ALJ rendered an unfavorable decision
on December 23, 2015. R. 33. The Appeals Council denied Plaintiff’s request for review.
R. 5–8. As a result, the ALJ’s decision became the final decision of the Commissioner of
Social Security (“Commissioner”). R. 5–8. Judicial review proceeds pursuant to 42 U.S.C.
§ 405(g) and 28 U.S.C. § 636(c). After careful scrutiny of the record and briefs, and for
the reasons explained below, the court concludes that the Commissioner’s decision is to be
REVERSED and REMANDED.
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by
virtue of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I. NATURE OF THE CASE
Barker seeks judicial review of the Commissioner’s decision denying his
application for disability insurance benefits. United States District Courts may conduct
limited review of such decisions to determine whether they comply with applicable law
and are supported by substantial evidence. 42 U.S.C. § 405. This court may affirm, reverse
and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is a limited one. The court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). “The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must affirm the
Commissioner’s decision if it is supported by substantial evidence. 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. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson
v. Perales, 402 U.S. 389, 401 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
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court will affirm, even if the court would have reached a contrary result as the finder of
fact, and even if the evidence preponderates against the Commissioner’s findings. Ellison
v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
The Court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). The court “may not decide 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) (quoting Bloodsworth, 703 F.2d at 1239).
The district court also will reverse a Commissioner’s decision on plenary review if
the decision applies incorrect law or fails to provide the district court with sufficient
reasoning to determine that the Commissioner properly applied the law. Keeton v. Dep’t of
Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan,
936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the Commissioner’s
conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991)
(quoting MacGregor, 786 F.2d at 1053).
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C.
§ 423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
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and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below the
poverty line. Eligibility for SSI is based upon proof of indigence and disability. See 42
U.S.C. §§ 1382(a) & 1382c(a)(3)(A)–(C). However, despite the fact they are separate
programs, the law and regulations governing claims for DIB and SSI are the same.
Therefore, claims for DIB and SSI are treated identically for the purpose of determining
whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir.
1986). Applicants under DIB and SSI must prove “disability” within the meaning of the
Social Security Act, which defines disability in virtually identical language for both
programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3) & 1382c(a)(3)(G); 20 C.F.R.
§§ 404.1505(a) & 416.905(a). A person is entitled to disability benefits when the person
is unable 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) & 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3) & 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520,
416.920 (2010).
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(1)
(2)
(3)
(4)
(5)
Is the person presently unemployed?
Is the person’s impairment(s) severe?
Does the person’s impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the person unable to perform his or her former occupation?
Is the person 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 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. The burden of proof rests on a claimant through Step
4. See Phillips v. Barnhart, 357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish
a prima facie case of qualification for disability once they meet the burden of proof from
Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then
show that there are a significant number of jobs in the national economy the claimant can
perform. Id.
To perform the analysis described in the fourth and fifth steps, the ALJ must
determine the claimant’s Residual Functional Capacity (“RFC”). Id. at 1238–39. RFC is
what the claimant still is able to do despite his or her impairments, and it is based on all
relevant medical and other evidence. Id. It may contain both exertional and nonexertional
limitations. Id. at 1242–43. At the fifth step, the ALJ considers the claimant’s RFC, age,
education, and work experience to determine if there are jobs available in the national
economy that the claimant can perform. Id. at 1239. To do this, the ALJ may either hear
testimony from a vocational expert (“VE”) or use the Medical Vocational Guidelines,
known as the “grids.” Id. at 1239–40. The grids allow the ALJ to consider factors such as
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age, confinement to sedentary or light work, inability to speak English, educational
deficiencies, and lack of job experience. Each factor independently may limit the number
of jobs realistically available to an individual. Id. at 1240. Combinations of these factors
yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Plaintiff was 63 years old on his date last insured. R. 32 & 141. He has obtained a
master’s degree, is a retired veteran, and has past relevant work experience as a master
claims adjuster and an independent insurance adjuster. R. 43. Although Plaintiff proceeds
pro se before the court at this time, he was represented by counsel at the hearing before the
ALJ. R. 38.
In evaluating Plaintiff’s application, the ALJ applied the five-step sequential
evaluation process described above. R. 23–33. At step one, the ALJ found Plaintiff met
the insured status requirements through June 30, 2015. R. 25. The ALJ found that he had
not engaged in substantial gainful activity during the relevant period. R. 25. After
reviewing the medical evidence and hearing testimony, the ALJ determined that Plaintiff’s
severe impairments included degenerative disc disease (“DDD”), status-post laminectomy
syndrome, obesity, and chronic pain syndrome. R. 26. At step three, the ALJ concluded
that Plaintiff did not have an impairment or combination of impairments that met or
equaled any of the impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1. R. 27. The
ALJ then found that Plaintiff retained the RFC to perform a limited range of light work.
R. 27. At step four, with the assistance of a VE’s testimony, the ALJ determined that
Plaintiff could perform his past relevant work as a Master and Independent Adjuster. R.
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31. Thus, the ALJ found that Plaintiff was not disabled during the relevant period. R. 33.
V. MEDICAL HISTORY
Plaintiff summarizes the relevant medical evidence as follows:
[X]-rays performed in January of 2012 found Mr. Barker suffered from
arthritis of the spine and advanced degenerative disc disease. Subsequently
Mr. Barker had decompression and fusion surgery of the lower back
performed in February 2012. Since this time, Mr. Barker has had regular
revisits with the neurosurgeon during which he has stated that he is happy
with the surgery as he no longer has to use a walker or cane to ambulate.
However, he is under constant treatment of local physicians and a pain
management center for treatment of residual nerve pain.
Doc. 18 at 2.
VI. ISSUES PRESENTED
According to Plaintiff, the issues for resolution are:
1.
Whether the ALJ erred in disregarding the VE’s testimony regarding
medical source statements?
2.
Whether the ALJ erred in failing to find that Plaintiff was disabled
through testimony of pain or other subjective symptoms?
3.
Whether the ALJ erred in mischaracterizing the evidence which
rendered her credibility determination unsupported.
Doc. 18 at 1.
VII. ANALYSIS
The ALJ recognized that Plaintiff was assigned a 60% disability rating from the VA
for his service connected disabilities. R. 30 & 338. Although this rating is to be given
“great weight,” it is not binding on the ALJ. 2 Brady v. Heckler, 724 F. 2d 914, 917–21
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Indeed, a disability finding under the Social Security Act requires Plaintiff to satisfy a more stringent
standard. See Pearson v. Astrue, 271 F. App’x 979, 981 (11th Cir. 2008) (citing 42 U.S.C. §§ 423(d)(2)(A)
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(11th Cir. 1984) (reversing for failure to give “great weight” to VA disability rating where
the ALJ found Plaintiff suffered from no severe impairment). Moreover, the ALJ must
“expressly consider[] and closely scrutinize[]” the VA’s determination in his opinion.
Adams v. Comm’r of Soc. Sec., 542 F. App’x 854, 857 (11th Cir. 2013) (affirming where
“ALJ did not expressly state that he gave ‘great weight’ to the VA’s rating,” but “record
shows that he expressly considered and closely scrutinized it”). Additionally, where an
ALJ discounts the VA’s disability determination, he must give “specific reasons” for doing
so. Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x 902, 904 (11th Cir. 2016)
(reversing where ALJ stated that he gave VA’s disability determination “little weight” and
ALJ’s findings about Plaintiff’s credibility were not supported by substantial evidence).
However, an ALJ’s determination that the VA’s decision “had little bearing” on Plaintiff’s
Social Security claim would not be reversible error where the ALJ’s “specific reasons for
discounting the VA’s determination show he considered and closely scrutinized that
determination.” Ostborg v. Comm’r of Soc. Sec., 610 F. App’x 907, 914 (11th Cir. 2015)
(affirming where substantial evidence supported the ALJ’s RFC and credibility
determinations and ALJ did not misapply law in discounting VA determination). The court
recognizes that Plaintiff failed to raise this issue before the court. This failure would
ordinarily result in a waiver of this argument, but the court has decided to consider this
issue so as not to punish Plaintiff unfairly for his pro se status.
In the instant case, the ALJ stated that she gave “little weight” to the VA disability
& 1382c(a)(3)(B).
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determination because “the standards used by the VA in determining disability are different
from those used by the Social Security Administration.” Tr. 30. The ALJ in the instant
case clearly erred in considering the VA disability rating when she stated that she gave it
“little weight.” Brown-Gaudet-Evans, 673 F. App’x at 904. Moreover, the ALJ failed to
give specific reasons for discounting the VA determination, and therefore did not “show
that [s]he considered and closely scrutinized that determination.” Ostborg, 610 F. App’x
at 914. Although the ALJ included a thorough recitation of the medical evidence of record
and mentioned the VA disability finding, Tr. 27–31, her reasons for discounting the VA
determination do not include the level of specificity required to demonstrate that she
“closely scrutinized” the VA determination. Brown-Gaudet-Evans, 673 F. App’x at 904.
Accordingly, the court concludes that this case is due to be remanded so that the ALJ may
consider Plaintiff’s claim for benefits after affording “great weight” to the VA’s 60%
disability determination. Cornelius v. Sullivan, 936 F. 2d 1143, 1145–46 (11th Cir. 1991)
(holding that the ALJ’s “failure to apply the correct law or to provide the reviewing court
with sufficient reasoning for determining that the proper legal analysis has been conducted
mandates reversal”). Further, since the court has concluded that the ALJ applied the
incorrect law with respect to the VA disability rating and failed to explain her reasons for
discounting it sufficiently, Plaintiff’s failure to raise this specific issue does not change this
court’s conclusion.
Additionally, the court reads the relevant case law as requiring it to consider whether
substantial evidence supports the ALJ’s opinion, even where she fails to give the correct
weight to a VA disability determination. Id. (reversing where substantial evidence did not
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support ALJ’s finding discounting Plaintiff’s credibility as to her complaints of
fibromyalgia); Brady, 724 F. 2d 914 (reversing where substantial evidence did not support
ALJ’s finding of no severe impairment); Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th
Cir. 1981) (reversing where no substantial evidence that Plaintiff was “capable of
performing substantial gainful employment” and insufficient weight given to VA rating).
The ALJ concluded that Plaintiff retained the residual functional capacity to perform
light work, except he
was limited to frequent pushing and pulling of foot controls with the left
lower extremity. He could frequently push and pull hand controls. The
claimant could frequently climb ramps and stairs and balance, and could
occasionally kneel, crouch, crawl, and stoop. He could occasionally climb
ladders and scaffolds. He could occasionally work in environments of
unprotected heights and around hazardous moving mechanical parts. The
claimant was limited to occasional to [sic] exposure [to] extreme cold and
extreme heat and occasional exposure to vibration. The claimant is limited
to sitting, standing, and walking for two hours each during an eight-hour
workday, with a total of four hours each during an eight-hour workday.
Tr. 27. A residual functional capacity assessment is used to determine a claimant’s
capacity to do as much as she is able to do despite her limitations. See 20 C.F.R.
§ 404.1545(a)(1). An RFC assessment must be based on all relevant evidence in the case
record. Id.; Lewis, 125 F.3d at 1440. The court concludes that the RFC is not supported by
substantial evidence because the ALJ did not expressly and specifically consider how the
VA disability determination impacted her finding of the Plaintiff’s RFC. Moore, 405 F.3d
at 1211.
It is not clear at this time whether the ALJ’s conclusion that Plaintiff is not disabled
will be altered by the application of the correct legal standard for consideration of the VA
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disability rating. Accordingly, the court cannot reverse and remand for an award of
benefits. Rather, the court concludes that remand is appropriate so that the ALJ can apply
the correct legal standard of “great weight” to the VA’s determination and make a
determination of Plaintiff’s RFC in light of the VA’s disability determination. Because the
court concludes that the opinion of the ALJ is due to be reversed and remanded on this
basis, the court pretermits discussion of the Plaintiff’s remaining claims for relief.
IX. CONCLUSION
Accordingly, for the reasons discussed, the decision of the Commissioner will be
REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) so that the
Commissioner can conduct additional proceedings consistent with this opinion.
A separate judgment is entered herewith.
DONE this 15th day of October, 2018.
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