Forte v. Berryhill

Filing 19

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 11/5/2018. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JERALD FORTE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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Civil Action No.: 3:17-cv-424-WC

MEMORANDUM OPINION
I.

INTRODUCTION
On September 3, 2015, Jerald Forte (“Plaintiff”) filed an application for a period of

disability and disability insurance benefits, alleging that he became disabled on October
30, 2004. The application was denied at the initial administrative level. Plaintiff then
requested and received a hearing before an Administrative Law Judge (“ALJ”). Following
the hearing, the ALJ issued an unfavorable decision, and the Appeals Council denied
Plaintiff’s request for review. The ALJ’s decision consequently became the final decision
of the Commissioner of Social Security (“Commissioner”).2 See Chester v. Bowen, 792

1

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 shall 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 reason
of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

2

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review of that decision
under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to
the conduct of all proceedings and entry of a final judgment by the undersigned United
States Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc. 18); Def.’s Consent to
Jurisdiction (Doc. 17). Based on the court’s review of the record and the parties’ briefs,
the court AFFIRMS the decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to 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).3
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
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
3

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The burden of proof rests on the claimant through Step Four. See Phillips v.
Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie
case of qualifying disability once he or she has carried the burden of proof from Step One
through Step Four. At Step Five, the burden shifts to the Commissioner, who must then
show that there are a significant number of jobs in the national economy that the claimant
can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and 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 can use either the Medical Vocational
Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert

4

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits brought under Title II of the Social Security Act. Supplemental security income cases
arising under Title XVI of the Social Security Act are appropriately cited as authority in Title II cases, and
vice versa. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec.,
486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of disability and the test used to determine
whether a person has a disability is the same for claims seeking disability insurance benefits or supplemental
security income.”).

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(“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts
of the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied in
evaluating claims.
4

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was thirty-seven years old on the date of the ALJ’s decision. Tr. 14-25,

230. He completed two years of college and has past work experience as a desk clerk at
an auto supply store and as a multi transport operator in the U.S. Army. Tr. 252-253. He
alleged disability due to post-traumatic stress disorder (“PTSD”), lower back pain, obesity,
onychomycosis, astigmatism, osteoarthritis, psychotic disorder, osteoarthrosis of the knee,
traumatic brain injury, and rheumatoid arthritis. Tr. 251.
Following the administrative hearing, and employing the five-step process, the ALJ
found at Step One that Plaintiff “did not engage in substantial gainful activity from his
alleged onset date of October 30, 2004 through his date last insured of March 31, 2010[.]”
Tr. 19. At Step Two, the ALJ found that Plaintiff suffers from the following severe
impairments: “mild PTSD, mild depressive disorder, psychotic disorder not otherwise
specified, alcohol abuse and cannabis abuse[.]” Id. At Step Three, the ALJ found that
“through the date last insured, [Plaintiff] did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments[.]”
Tr. 20. Next, the ALJ articulated Plaintiff’s RFC as follows:
[T]hrough the date last insured, [Plaintiff] had the residual functional
capacity to perform a full range of work at all exertional levels; however,
mentally, the claimant was limited to performing simple, routine, repetitive
type tasks. He was able to maintain concentration and persistence for up to
2-hour segments, and he was limited to only occasional interaction with coworkers and the public. He was unable to work in fast-paced or high
production type work environments prior to his date last insured.
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Tr. 22. At Step Four, based upon the testimony of a VE, the ALJ concluded that “[t]hrough
the date last insured, [Plaintiff] was unable to perform any past relevant work.” Tr. 23. At
Step Five, based upon Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that “through the date last insured . . . there were jobs that existed in significant
numbers in the national economy that [Plaintiff] could have performed.”

Tr. 24.

Accordingly, the ALJ determined that Plaintiff “was not under a disability . . . at any time
from October 30, 2004, the alleged onset date, through March 31, 2010, the date last
insured[.]” Tr. 25.
IV.

PLAINTIFF’S ARGUMENT
Plaintiff presents four issues on appeal, which the court has restated as follows:
(1) Whether the ALJ erred by finding that Plaintiff failed to meet Listing 12.04;
(2) Whether the ALJ erred by failing to consider all of the relevant evidence;
(3) Whether the ALJ erred by assigning no weight to the opinion of a “health system
specialist”; and
(4) Whether the ALJ erred by failing to give reasons for not giving the Department
of Veterans Affairs (“VA”) disability determination great weight.
Doc. 14 at 5.

V.

DISCUSSION
1. Whether the ALJ erred by finding that Plaintiff failed to meet Listing 12.04
First, Plaintiff argues that the “ALJ failed to consider how [his] inability to maintain

employment and attend college affects his ability to perform basic mental demands of
remunerative, unskilled work.” Doc. 14 at 13. Plaintiff contends that, had the ALJ properly
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evaluated his abilities, the ALJ would have found that he meets the requirements of Listing
12.04. Id. at 14.
In finding that Plaintiff did not meet the criteria of Listing 12.04, which relates to
affective disorders, the ALJ found that Plaintiff “was able to obtain employment during the
period at issue and attended community college. The medical record does not indicate the
claimant suffered from any mental impairment which prevented him from engaging in
work related activity on a sustained basis.” Tr. 21. Plaintiff appears to take issue with this
finding.
Plaintiff argues that the ALJ failed to consider evidence in the record showing that
he had difficulty maintaining employment and that he eventually dropped out of college.
Doc. 14 at 13. Although Plaintiff points to evidence that is arguably countervailing to the
ALJ’s finding, the ALJ in fact considered Plaintiff’s past employment and educational
history in significant detail. For example, the ALJ observed that, according to treatment
notes in September 2005, Plaintiff was “attending school full time and ‘making good
grades.’” Tr. 20; 1836. In March 2006, he was “attending college [and] working 15-20
hours per week.” Tr. 20; 1806. The ALJ observed that, in October 2008, Plaintiff was
“working and had his own apartment.” Tr. 20; 1760. Elsewhere in the decision, the ALJ
noted that Plaintiff’s “medical conditions were relatively benign prior to his date last
insured” and cited as evidence the fact that Plaintiff attended community college, worked
several part time jobs, and was in the inactive U.S. Army reserves until 2008. Tr. 23; 17591761. Plaintiff has not demonstrated that any of these findings were made in error.
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Rather, Plaintiff argues that the fact that he had difficulty maintaining employment
and dropped out of college should lead to a different result, that is, a finding of disability.
Doc. 14 at 13. However, Plaintiff is essentially asking the court to reweigh the evidence
and substitute its judgment for that of the ALJ, which is not the court’s proper role. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). Rather, the court “must defer to the
[ALJ’s] decision if it is supported by substantial evidence.” Id. The ALJ reviewed the
evidence pertaining to Plaintiff’s employment and educational history and found that it did
not demonstrate mental impairments that were incompatible with “engaging in work
related activity on a sustained basis.” Tr. 21. The court finds that substantial evidence
supports the ALJ’s conclusion.
To the extent that Plaintiff argues that he meets Listing 12.04, the court also finds
this argument unavailing. Plaintiff bears the burden of demonstrating that he meets the
criteria of a listed impairment at step three. See Wright v. Comm’r of Soc. Sec., 327 F.
App’x 135, 136-137 (11th Cir. 2009). Plaintiff has not stated what criteria of the listing he
believes he has met, nor has he pointed to evidence that would support a finding that he
meets the listing. In fact, Plaintiff has not identified any evidence of mental limitations
that are greater than those found by the ALJ. Despite the deficiencies of Plaintiff’s
arguments, the court has reviewed the ALJ’s decision and the evidence of record, and finds
that substantial evidence supports the ALJ’s decision with respect to Listing 12.04. In
addition to the ALJ’s findings regarding Plaintiff’s employment and educational history,
the ALJ also noted that “no State agency psychological consultant concluded that a mental
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listing was medically equaled in this case prior to the date last insured.” Tr. 21. The ALJ
found that Plaintiff had no more than moderate limitations of mental functioning, which
are insufficient to satisfy the listing. The court finds that the record supports these
conclusions. Accordingly, the court will not disturb the ALJ’s conclusion that Plaintiff
failed to meet Listing 12.04.
2. Whether the ALJ erred by failing to consider all of the relevant evidence
Second, Plaintiff argues that the ALJ failed to consider all of the relevant evidence
and “‘cherry picked’ the record to identify only the records that would allow him to issue
a decision that is unfavorable to [Plaintiff].” Doc. 14 at 11-12. Plaintiff’s specific issue
with the ALJ’s decision again relates to the fact that he dropped out of college and had
difficulty maintaining employment. Id. Plaintiff also contends that the ALJ did not
adequately discuss his testimony related to a workplace altercation in which he choked a
coworker to unconsciousness. Id. at 11; Tr. 1003. For the reasons discussed in more detail
above, the court finds these arguments unavailing.
Moreover, it is not fatal to the ALJ’s decision that he failed to discuss every piece
of evidence submitted for consideration. See Wilkinson v. Comm'r of Soc. Sec., 289 F.
App’x. 384, 386 (11th Cir. 2008) (“ALJ was not required to list in detail every bit of
evidence he relied on to reach [his] decision.”); Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005) (“[T]here is no rigid requirement that the ALJ specifically refer to every
piece of evidence in his decision.”). The Court will not reverse “so long as the ALJ’s
decision . . . is not a broad rejection which is not enough to enable [this Court] to conclude
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that [the ALJ] considered [Plaintiff’s] medical condition as a whole.” Id. (quoting Foote
v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)). Instead, the court will look to “whether
the ALJ’s conclusion as a whole was supported by substantial evidence in the record.” Id.
Plaintiff’s argument on this issue is sparse; however, the court has identified no legal
error in the ALJ’s consideration of the evidence of record, nor in his explanation of the
decision. Therefore, the court finds that Plaintiff is not entitled to a remand with respect
to this issue.
3. Whether the ALJ erred by assigning no weight to the opinion of Avis Tidwell
Plaintiff next argues that the ALJ erred by not assigning any weight to the opinion
of Avis E. Tidwell, a “health system specialist” at the VA. Mr. Tidwell observed in a
Compensation and Pension examination note that Plaintiff could not return to work due to
PTSD. Doc. 14 at 5, 12; Tr. 23, 1775-1781. Plaintiff argues that the ALJ “committed error
when he failed to further explain his reasons for discrediting the opinion of a treating
source.” Doc. 14 at 12. The ALJ considered the examination note from Mr. Tidwell, but
found that he was “not an acceptable medical source and the limitations stated by Mr.
Tidwell are not consistent with the medical record in this case.” Tr. 23. The Commissioner
argues that the ALJ appropriately considered the evidence from Mr. Tidwell. Doc. 15 at
4.
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis,
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what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Absent “good cause,” an ALJ is to give
the medical opinions of treating physicians “substantial or considerable weight.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause exists “when the: (1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). A
consultative examiner’s opinion is not entitled to the deference normally given a treating
source. See 20 C.F.R. § 404.1527(c)(2); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1160 (11th Cir. 2004) (one-time examiner’s opinion is not entitled to great weight).
Nonetheless, the ALJ is to consider and evaluate all opinions, even those of non-treating
state agency or other program examiners or consultants. See 20 C.F.R. § 404.1527.
Plaintiff is incorrect that Mr. Tidwell is a “treating source.” Doc. 14 at 12. The ALJ
correctly observed that Mr. Tidwell, who is a “health system specialist” and not a physician
or psychologist, does not qualify as an “acceptable medical source” and cannot, therefore,
offer a medical opinion entitled to controlling weight. See 20 C.F.R. § 404.1513(a)
(identifying list of “acceptable medical sources” whose opinions may be considered in
determining the existence of a medically determinable impairment). Instead, Mr. Tidwell’s
opinion is that of an “other” source, and cannot, alone, establish the existence of disability.
See SSR 06-03p, 2006 WL 2329939, at *2 (“[O]nly ‘acceptable medical sources’ can give
us medical opinions.”). Although evidence from subjective, nonmedical, “other sources”
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cannot establish a medically determinable impairment, it is appropriate to consider the
evidence to show the severity of the impairment and how it affects a claimant’s ability to
work. See 20 C.F.R. §§ 404.1513(a), (d).
Here, the ALJ plainly considered Mr. Tidwell’s opinion and articulated reasons for
discounting it. Tr. 23. Although the ALJ did not clearly indicate what weight he gave Mr.
Tidwell’s opinion, it is evident that he discounted the opinion because he concluded that it
was “not consistent with the medical record.” Id. As such, any failure by the ALJ to
explicitly state what weight he assigned to Mr. Tidwell’s opinion, or that he was rejecting
the opinion altogether, does not warrant remand because the court is plainly able to “follow
the adjudicator’s reasoning.” See SSR 06–03p (“[T]he adjudicator generally should
explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that
the discussion of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning”); see also De Olazabal v. Soc.
Sec. Admin., Comm’r, 579 F. App’x 827, 832 (11th Cir. 2014). Accordingly, the court
finds that the ALJ’s failure to explicitly state the weight he afforded to Plaintiff’s “other
source” evidence does not warrant reversal of the ALJ’s decision.
Moreover, the court finds that the record supports the ALJ’s decision to give Mr.
Tidwell’s opinion less than controlling weight. Mr. Tidwell opined that Plaintiff was not
able to function at work or school, that he was isolated from friends, fought with his
brother, and had flashbacks while driving. Tr. 1781. Although Mr. Tidwell discussed the
nature of Plaintiff’s impairments, he did not provide any assessment as to the severity of
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Plaintiff’s impairments or any resulting limitations other than the broad conclusion that
Plaintiff was unable to work. Id. Opinions on some issues, such as whether a claimant is
“disabled” or “unable to work,” “are not medical opinions . . . but are, instead, opinions on
issues reserved to the Commissioner because they are administrative findings that are
dispositive of a case, i.e., that would direct the determination or decision of disability.” 20
C.F.R. § 404.1527(d); SSR 96-5p, 1996 WL 374183, at *2; see also Hutchinson v. Astrue,
408 F. App’x 324, 328 (11th Cir. 2011) (whether a claimant can hold a job is an
administrative finding reserved to the ALJ, not a medical opinion). The court concludes
that the ALJ’s decision with respect to Mr. Tidwell’s opinion is supported by substantial
evidence and does not warrant remand.
4. Whether the ALJ erred in his assessment of Plaintiff’s VA disability rating
Finally, Plaintiff argues that the ALJ erred by failing to properly consider his 100%
VA disability rating. Doc. 14 at 5, 12-13. Plaintiff contends that the explanation given by
the ALJ for discounting the VA rating was “very vague” and “boilerplate” and did “not
provide an adequate explanation” for the ALJ’s decision. Id. The Commissioner argues
that the ALJ properly considered Plaintiff’s VA disability rating and appropriately gave it
little weight because it was “not reflective of Plaintiff’s impairments during the period of
time relevant to his claims [of disability].” Doc. 15 at 7.
SSA regulations provide that “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.”
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Ostborg v. Comm’r of Soc. Sec., 610 F. App’x 907, 914 (11th Cir. 2015) (citing 20 C.F.R.
§ 404.1504). However, the Eleventh Circuit has explained that, although a VA disability
rating is not binding on the Commissioner, it is evidence that must be considered and
entitled to “great weight.” See, e.g., Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984)
(“Although the V.A.’s disability rating is not binding on the [Commissioner], it is evidence
that should be given great weight.”) (internal quotation marks and citation omitted);
Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th Cir. 1983) (“The findings of disability
by another agency, although not binding on the [Commissioner], are entitled to great
weight.”) (citation omitted); Kemp v. Astrue, 308 F. App’x 423, 426 (11th Cir. 2009) (“‘A
VA rating is certainly not binding on the [Commissioner], but it is evidence that should be
considered and is entitled to great weight.’”) (quoting Rodriguez v. Schweiker, 640 F.2d
682, 686 (5th Cir. 1981)). Accordingly, an ALJ should give sufficiently specific reasons
for discounting a VA disability determination. See, e.g., Harris v. Berryhill, No. 1:15-cv838-TFM, 2017 WL 4125256, at *5 (M.D. Ala. Sept. 18, 2017) (finding that the ALJ’s
reasons for discounting the plaintiff’s VA disability rating “do not include the level of
specificity required to demonstrate that he closely scrutinized the VA determination”)
(internal quotations omitted); Dunham v. Colvin, No. 2:15-cv-622-GMB, 2017 WL
253979, at * 3 (M.D. Ala. Jan. 19, 2017) (finding that the ALJ erred by giving the plaintiff’s
100% service-connected disability rating ‘little weight’ for no reasons other than that the
VA uses different criteria than the SSA to determine disability); Zahnle v. Colvin, No. 3:15cv-1117-J-MCR, 2016 WL 4441592, at *2-3 (M.D. Fla. Aug. 23, 2016) (finding that the
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ALJ “failed to meaningfully consider and address what parts of the VA disability
determination he credited versus those he did not”).
In this case, with respect to Plaintiff’s VA disability rating, the ALJ found as
follows:
The medical record contains a VA disability rating report dated
October 31, 2011, which shows that the claimant was given an 100% VA
disability rating affective [sic] April 8, 2011 due to PTSD. The undersigned
notes that this VA rating was given after the claimant’s date last insured, and
the conditions described in the VA rating were not previously noted in the
medical record during the period of 2004 to 2010. The undersigned gave
consideration to the claimant’s VA disability rating dated October 31, 2011;
however, because the VA and SSA criteria for determining disability are
different, the undersigned may give less weight to a VA disability rating if
there are persuasive, specific, and valid reasons for doing so. In this case,
the undersigned gives little weight to the claimant’s VA rating because the
medical record does not support disability during the period prior to the
claimant’s date last insured.
Tr. 23.
The court concludes that the ALJ provided appropriate reasons to discount
the VA disability rating. Contrary to Plaintiff’s assertion that the ALJ’s explanation
was “vague, “boilerplate,” or otherwise inadequate, the court finds that the ALJ
provided cogent reasons for not giving great weight to the VA rating. While noting
that the standards for disability differ between the VA and SSA, the ALJ primarily
relied on the effective date of the VA’s disability determination. Plaintiff’s date last
insured for disability benefits was March 31, 2010. Plaintiff’s 100% VA disability
rating decision was issued October 31, 2011—in other words, outside of the relevant
period of disability. Tr. 240, 193-209.
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This court has previously found that a lapse in time between the VA disability
determination and a plaintiff’s date last insured “is adequate reason for [an ALJ]
declining to accord it significant weight.” Folks v. Astrue, No. 2:08-cv-836-SRW
(WO), 2010 WL 3892253, at *3 (M.D. Ala. Sept. 29, 2010) (citing Dennett v.
Astrue, No. 08-97-B-W, 2008 WL 4876851, at *4-5 (D. Me. Nov. 11, 2008), report
and recommendation adopted, 2008 WL 5103225 (D. Me. Dec. 4, 2008) (“[T]he
VA [100% disability] rating decision [effective one year after plaintiff’s date last
insured] sheds no light on the plaintiff’s condition prior to his date last insured.”));
see also Daniels v. Astrue, No. 08-00399-CG-B, 2010 WL 610466, at *6 (S.D. Ala.
Feb. 19, 2010) (finding that a 100% VA disability determination effective twenty
months after the plaintiff’s date last insured provided “no evidence that [p]laintiff
experienced any functional limitations of any sort prior to his date last insured”).
In this case, Plaintiff has failed to demonstrate that the ALJ erred in his
consideration of a VA disability rating issued nineteen months after Plaintiff’s date
last insured.

Accordingly, the court concludes that the ALJ appropriately

considered the VA’s determination of disability and assigned it the proper weight.
VI.

CONCLUSION
For all of the reasons given above, the undersigned Magistrate Judge concludes that

the decision of the Commissioner is AFFIRMED. A separate judgment will issue.
Done this 5th day of November, 2018.

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/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE

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