Paul v. Commissioner of Social Security
OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED, and this matter is REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 1/10/2018. (KBR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:16-cv-784-FtM-CM
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Patricia Paul seeks judicial review of the denial of her claim for
disability and disability insurance benefits (“DIB”) by the Commissioner of the Social
Security Administration (“Commissioner”). The Court has reviewed the record, the
briefs, and the applicable law. For the reasons set forth herein, the decision of the
Commissioner is REVERSED and this matter is remanded to the Commissioner
pursuant to 42 U.S.C. § 405(g), sentence four. 1
Issues on Appeal 2
Plaintiff raises two issues on appeal: (a) whether the administrative law judge
(“ALJ”) properly considered Plaintiff’s Department of Veteran’s Affairs (“VA”)
Both parties have consented to the jurisdiction of the United States Magistrate
Judge. Docs. 19, 20.
Any issue not raised by Plaintiff on appeal is deemed to be waived. Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or
argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”).
disability rating; and (b) whether the ALJ properly assessed Plaintiff’s credibility.
Summary of the ALJ’s Decision
On June 2, 2016, the ALJ issued a decision finding Plaintiff not disabled from
December 1, 2013, the alleged onset of disability, through the date of the decision.
At step one, the ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2018, and had not
engaged in substantial gainful activity since December 1, 2013. Tr. 18. At step two,
the ALJ determined that Plaintiff had the following severe impairments:
[i]nflammatory arthritis, multiple sclerosis with a history of left eye
optic atrophy and optic neuritis, degenerative disc disease and facet
arthritis of the cervical spine, degenerative disc disease of the lumbar
spine, obesity, osteoarthritis of the knees with history of effusion,
fibromyalgia syndrome with chronic pain, depressive disorder, mood
disorder, adjustment disorder, post-traumatic stress disorder,
unspecified trauma and stress-related disorder, anxiety with a history
of panic attacks, eating disorder, and cannabis abuse.
Id. At step three, the ALJ concluded that Plaintiff did not have “an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 20. The ALJ
then determined that Plaintiff had the RFC to perform light work 3 with the following
The regulations define light work as follows:
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.
[Plaintiff] can lift, push, pull and carry twenty pounds occasionally and
ten pounds on a frequent basis. In addition, [Plaintiff] can sit for six
hours during each eight-hour workday and stand and walk, in
combination, six hours during each eight-hour workday. However, at
one time, [Plaintiff] can only walk for 30 minutes, stand for 30 minutes,
and sit for 30 minutes. Although [Plaintiff] is precluded from climbing
ladders, ropes, stairs, and scaffolds, she can occasionally climb ramps.
Similarly, [Plaintiff] is limited to occasional stooping and can not
perform repetitive stooping below the waist. She can never engage in
kneeling, crouching, and crawling. [Plaintiff] is also precluded from
overhead reaching. [Plaintiff] can frequently engage in handling and
fingering. She is precluded from commercial driving. She must have no
exposure to unprotected heights and dangerous machinery. [Plaintiff] is
limited to simple, routine, and repetitive work that require[s] no more
than occasional interaction with the public and with co-workers.
[Plaintiff] is limited to work that allows her to be off-task ten percent of
the workday in addition to regularly scheduled breaks.
Tr. 22. Next, the ALJ found that Plaintiff was unable to perform any past relevant
work. Tr. 25. Considering Plaintiff’s age, education, work experience and RFC, the
ALJ determined there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform and therefore concluded she was not disabled.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ
applied the correct legal standards and whether the findings are supported by
substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988)
(citing Richardson v. Perales, 402 U.S. 389, 390 (1971)).
findings of fact are conclusive if supported by substantial evidence.
20 C.F.R. §§ 404.1567(b), 416.967(b).
42 U.S.C. §
405(g). 4 Substantial evidence is “more than a scintilla, i.e., evidence that must do
more than create a suspicion of the existence of the fact to be established, and such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations
The Eleventh Circuit has restated that “[i]n determining whether substantial
evidence supports a decision, we give great deference to the ALJ’s fact findings.”
Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (citation
omitted). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact or found that the preponderance of the evidence is against the
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); see also Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings). The Court
reviews the Commissioner’s conclusions of law under a de novo standard of review.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing
After the ALJ issued the decision, certain Social Security rulings and regulations
were amended, such as the regulations concerning the evaluation of medical opinions and
evaluation of mental impairments. See e.g., 20 C.F.R. §§ 404.1520a, 404.1520c and 404.1527
(effective March 27, 2017); SSR 16-3p, 2016 WL 1119029 (March 16, 2016). The Court will
apply rules and regulations in effect at the time of the ALJ’s decision. Green v. Soc. Sec.
Admin., Comm’r, — F. App’x —, 2017 WL 3187048, at *4 (11th Cir. July 27, 2017) (declining
to apply SSR 16-3p retroactively to the ALJ’s decision); Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208 (1988); 20 C.F.R. § 404.1527 (effective March 27, 2017) (“For claims filed .
. . before March 27, 2017, the rules in this section apply.”).
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
a. Whether the ALJ properly considered Plaintiff’s VA disability rating
Plaintiff first argues that the ALJ did not give an adequate explanation for
why she gave little weight to Plaintiff’s VA disability rating. Doc. 12 at 15-20. The
Commissioner responds that the ALJ properly discounted the VA’s rating because
the VA applies different standards than those applied by the Social Security
Administration (“SSA”). Doc. 15 at 5-7. Upon consideration, the Court finds that
the ALJ did not properly consider Plaintiff’s VA disability rating.
The Social Security regulations provide that a decision by another
governmental agency about whether a claimant is disabled is not binding on the
Commissioner because it is not based on social security law. 20 C.F.R. § 404.1504.
The Social Security Rulings, however, explain that such decisions and the evidence
used to make them cannot be ignored, as they may provide insight into the claimant’s
[E]vidence of a disability decision by another governmental
or nongovernmental agency cannot be ignored and must be
These decisions, and the evidence used to make these
decisions, may provide insight into the individual’s mental
and physical impairment(s) . . . .
SSR 06-3p, 2006 WL 2329939, at *6-7.
The law in this circuit supports this
proposition, and the Eleventh Circuit also has held that the VA’s disability rating is
evidence that should be considered and given great weight.
See, e.g., Brady v.
Heckler, 724 F.2d 914, 921 (11th Cir. 1984) (quoting Olson v. Schweiker, 663 F.2d
593, 597 n.4 (5th Cir. 1981)); see also Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th
Cir. 1981)5 (noting that while a VA rating is “certainly not binding on the Secretary,
 it is evidence that should be considered and is entitled to great weight”). Since
Rodriguez, the Fifth Circuit has further clarified the weight to be accorded VA
disability decisions in Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001),
explaining that while such evidence may not be entitled to “great weight” because of
the differing criteria applied by the two agencies, “it is evidence that is entitled to a
certain amount of weight and must be considered by the ALJ.”
In Rodriguez and its progeny, we have sometimes referred to a VA
disability determination as being entitled to “great weight.” While this
is true in most cases, the relative weight to be given this type of evidence
will vary depending upon the factual circumstances of each case. Since
the regulations for disability status differ between the SSA and the VA,
ALJs need not give “great weight” to a VA disability determination if
they adequately explain the valid reasons for not doing so.
Id. Courts in this district specifically have held that a statement to the effect that
the VA applies different criteria to evaluate disability is not sufficient justification to
accord reduced weight to a VA disability rating. See, e.g. Hogard v. Sullivan, 733 F.
Supp. 1465, 1468 (M.D. Fla. 1990); Gibson v. Comm’r of Soc. Sec., 725 F. Supp.2d
1347, 1351 (M.D. Fla. 2010).
Here, the VA assigned the following disability ratings: 70% post-traumatic
stress disorder (“PTSD”), 30% multiple sclerosis, 10% paralysis of the median nerve,
In Bonner v. City of Prichard, 661 F.2d 1206, 1207, 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered
prior to October 1, 1981.
10% lumbosacral or cervical strain, 10% hiatal hernia, 10% labyrinthitis, 10%
degenerative arthritis of the spine, 10% superficial scars, and 10% eczema. Tr. 288.
A letter from the Department of Veteran’s Affairs dated November 6, 2014 indicates
that the combination of Plaintiff’s symptoms cause impairment which is sufficiently
severe to prohibit Plaintiff from securing or maintaining employment. Tr. 259. In
a section regarding Dependents’ Educational Assistance, the VA indicates that the
disability is permanent in nature. Id.
Treatment records from the VA show that Plaintiff was diagnosed with a
depressive disorder and received treatment for depression from the VA beginning in
October 2014. Tr. 324. Although there is evidence on the record to suggest that
Plaintiff’s symptoms showed some improvement with treatment (see, e.g. Tr. 373,
393, 706), as recently as January 28, 2016 Plaintiff was involuntarily admitted 6 to
C.W. Bill Young VA Medical Center after telling Cecilia M. Sunnenburg, M.D., about
“reckless behaviors,” including standing outside during a tornado. Tr. 438-39. In
addition, VA treatment records reveal a history of pain and swelling of the hands,
elbows, knees, wrists, ankles, and feet (Tr. 259, 269, 290, 697-703) that eventually
was diagnosed as seronegative rheumatoid arthritis. Tr. 703. Plaintiff also has a
diagnosis of multiple sclerosis (“MS”), and on at least one occasion Plaintiff spoke to
a VA neurologist about symptoms related to her MS, including cognitive slowing, lack
Treatment notes for Plaintiff show that she was “admitted yesterday under BA52.”
Tr. 439. This is a short-hand reference to the “Certificate of Professional Initiating
Involuntary Examination,” form 3052b, which is used to initiate an involuntary examination
under Florida’s Baker Act, Fla. Stat. § 394.467. See Florida Dep’t of Children and Families,
Crisis Services – Baker Act Forms, MyFLFamilies, http://myflfamilies.com/serviceprograms/mental-health/baker-act-forms (last visited Jan 9, 2018).
of focus, severe fatigue, heat intolerance, gait imbalance, muscle spasms, and
weakness in her limbs. Tr. 302-304
Despite this evidence, the ALJ acknowledged the VA’s disability determination
only once in her decision and discounted it with no justification other than a
statement that the VA applies different standards than the SSA in evaluating
disability. Tr. 23. Specifically, the ALJ stated:
Consistent with her earlier representations before the Administration,
[Plaintiff] testified that she completed a twenty-year career as a
personnel specialist in the United States Air Force before being granted
an honorable discharge due to unemployability secondary to her diverse
impairments[.] The standards applied for adjudication as
"unemployable" by the Department of Veteran's Affairs and for a service
connected disability rating are different from the standards applied by
the Social Security Administration and, thus, little weight is given the
Department of Veterans's Affairs determination.
The Commissioner argues that the ALJ “gave great weight by seriously
considering the VA’s decision to grant Plaintiff an honorable discharge due to
unemployability secondary to her diverse impairments.” Doc. 15 at 6. The ALJ’s
opinion, however, does not support the Commissioner’s assertion. Although the ALJ
discussed some findings from VA medical records (Tr. 23-24), she did not analyze,
discuss or even further mention the disability ratings.
See generally, Tr. 23-24.
Moreover, nowhere in her decision did the ALJ identify the actual disability ratings
assigned by the VA or acknowledge that VA disability ratings are generally entitled
to great weight. See Tr. 16-27.
This case is closely analogous to Salamina, where the ALJ “mentioned the
Plaintiff’s VA disability finding only in passing,” without ever expressly identifying
the VA disability rating itself, or “acknowledging the weight to be afforded to such
ratings.” See Salamina v. Colvin, No. 8:12-cv-985-T-23TGW, 2013 WL 2352204, at
*3-4 (M.D. Fla. May 29, 2013). In Salamina, the Commissioner argued that the ALJ
accounted for the disability rating by affording weight to the opinions of nonexamining consultants who discussed the VA rating. Id. at *3. The district court
rejected this argument, noting that discussion of medical records from a VA decision
is not a substitute “for consideration of the rating decision itself.” Id. at *4 (citing
Williams v. Barnhart, 180 F. App’x 902 (11th Cir. 2006)). Ultimately, the district
court reversed the ALJ’s decision, finding that the ALJ had erred in failing to
evaluate the Plaintiff’s 50% VA disability rating. Id. at *3, 4. Here, with a 70%
disability rating for PTSD, 30% for multiple sclerosis, 10% for several other disorders,
and a finding that Plaintiff essentially was permanently unemployable, the ALJ had
an obligation to more closely scrutinize the records. Tr. 288; see Salamina, 2013 WL
2352204, at *3.
Because the ALJ provided no more than a statement that the VA applies
different standards than the SSA to justify her decision to accord little weight to the
VA’s disability rating, the Court is unable to determine if the ALJ closely scrutinized
the VA’s disability rating, as required by Rodriguez. 640 F.2d at 686. Accordingly,
reversal is warranted.
b. Whether the ALJ properly assessed Plaintiff’s credibility
Plaintiff also argues that the ALJ erred by improperly discounting Plaintiff’s
credibility and rejecting Plaintiff’s subjective statements regarding her pain and
other symptoms. Doc. 12 at 20-23. Because this case must be remanded for proper
consideration of Plaintiff’s VA disability rating, the Court will direct the ALJ to reevaluate Plaintiff’s subjective statements regarding her pain and other symptoms.
Upon review of the record, the Court finds that the ALJ erred by not properly
considering Plaintiff’s VA disability rating.
ACCORDINGLY, it is hereby
The decision of the Commissioner is REVERSED, and this matter is
REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g),
for the Commissioner to:
employ the proper legal standard to properly evaluate the VA
disability rating and assign great weight to the rating, or adequately explain the
reasons for finding that the rating is entitled to reduced weight;
reevaluate plaintiff’s subjective statements regarding her pain
and other symptoms; and
make any further determinations consistent with this Opinion
and Order, or in the interests of justice.
The Clerk of Court is directed to enter judgment accordingly, and close
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DONE and ORDERED in Fort Myers, Florida on this 10th day of January,
Counsel of record
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