Chait v. Commissioner of Social Security
Filing
16
OPINION AND ORDER REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings. The Clerk is directed to enter judgment in favor of Plaintiff and close the file. Signed by Magistrate Judge Carol Mirando on 6/6/2018. (LPB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TODD J. CHAIT,
Plaintiff,
v.
Case No: 2:17-cv-222-FtM-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Todd J. Chait seeks judicial review of the denial of his claim for a
period of disability and disability insurance benefits (“DIB”) by the Commissioner of
the Social Security Administration (“Commissioner”). In a decision dated February
25, 2016, the Administrative Law Judge (“ALJ”) found that Plaintiff had not been
under a disability, as defined in the Social Security Act, from December 31, 2010, the
amended alleged onset date, through December 31, 2013, the date last insured. Tr.
18–31.
The Court has reviewed the record, the joint memorandum and the
applicable law. For the reasons discussed herein, the decision of the Commissioner
is REVERSED, and this matter is REMANDED pursuant to sentence four of 42
U.S.C. § 405(g). 1
Both parties have consented to the jurisdiction of the United States Magistrate
Judge. Docs. 12, 14.
1
I.
Issues on Appeal 2
Plaintiff raises three issues on appeal: (1) whether the ALJ properly assessed
the disability finding of the Department of Veterans Affairs (“VA”); (2) whether the
ALJ’s assessment of Plaintiff’s residual functional capacity (“RFC”) as to his mental
impairments is supported by substantial evidence; and (3) whether substantial
evidence supports the ALJ’s findings regarding Plaintiff’s credibility.
II.
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. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (internal citations omitted).
The Commissioner’s findings of fact are
conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). 3 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 omitted).
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.”).
2
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, 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. Hargress v. Soc. Sec.
Admin., Comm’r, 883 F.3d 1302, 1308 (11th Cir. 2018); 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.”).
3
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The Eleventh Circuit has restated that “[i]n determining whether substantial
evidence supports a decision, we give great deference to the ALJ’s factfindings.”
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
Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); cf. Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating 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
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
III.
Discussion
A. VA Rating
Plaintiff first argues the ALJ erred by assigning little weight to the 100%
service-connected VA disability rating.
Doc. 15 at 12-14.
Plaintiff contends the
ALJ did not consider Plaintiff’s total disability award based on his inability to follow
a substantially gainful occupation under 38 C.F.R. § 4.16, and instead erroneously
only considered the schedule percentage ratings assigned by the VA.
Id. at 12.
Plaintiff further argues the ALJ’s finding that the VA rating decision is inconsistent 4
4
Plaintiff used the word “consistent,” but the Court assumes this was a typographical
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with other evidence is overly vague. Id. at 13. The Commissioner responds that the
ALJ carefully considered the VA’s disability rating, including his entitlement to
individual unemployability and gave the VA rating little weight. Id. at 14-15. She
contends the ALJ articulated the reasoning for doing so, based not only on the VA’s
use of a different standard but also because the disability determination is reserved
to the Commissioner and the VA rating decision was specifically inconsistent with
objective medical evidence and opinions in the record. Id. at 15-17. The Commissioner
argues the ALJ does not have to specifically refer to every piece of evidence but did
consider all the VA records and the disability decisions even if the ALJ did not
mention every determination contained within the VA rating decision. Id. at 18-19.
In the decision dated July 22, 2011, the VA certified that Plaintiff is an
“honorably discharged veteran of the Navy and has service-connected disability
evaluated at 100 percent.” Tr. 777-78. The report was an update of one provided
in December 2010 based on Plaintiff’s new claim filed on February 8, 2011. Tr. 778.
The rating included a 50% rating for panic disorder with agoraphobia and a 10%
rating for degenerative disc disease.
Id.
The decision discussed the relevant
medical records for each of these evaluations.
Tr. 779-81.
With respect to the
reasons for the VA rating of 50% for panic disorder, the impairment at issue here, the
decision discussed the medical evidence and records. Tr. 779-80. It noted there was
no mention of panic disorder with agoraphobia in the medical evidence received from
Florida Heart Associates. Tr. 779. Further, it stated that a review of records at VA
error and intended to state “inconsistent.”
See Doc. 15 at 13, Tr. 27.
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medical facilities in Plaintiff’s geographical area showed Plaintiff had not sought
treatment at any of them. Id. The report discussed a February 22, 2011 record
from Bay Pines VA Medical Center in which Plaintiff reported recurrent panic
attacks lasting between one and fifteen minutes three times weekly and his
persistent worry about having them. Id. The examiner noted Plaintiff was clean,
neatly groomed, appropriately dressed, friendly, relaxed and attentive.
Id.
Plaintiff’s speech and thought process were unremarkable, his affect was normal and
his mood was anxious. Id. Plaintiff was not delusional, had good impulse control
and no episodes of violence. Id. The examiner noted Plaintiff was able to manage
his financial affairs.
Id.
He assessed Plaintiff with a Global Assessment of
Function 5 (“GAF”) of 56. 6 Id. Based on these records, the VA gave Plaintiff a 50%
disability rating for his service-connected panic disorder with agoraphobia based on
“occupational and social impairment with reduced reliability and productivity (as
shown upon examination), difficulty in establishing and maintaining effective work
and social relationships and panic attacks more than once a week.” Id.
The ALJ discussed the VA ratings and the weight given in her RFC
determination:
The record includes a Rating Decision[] from the Department of
Veterans Affairs dated February 9, 2011[7] that the claimant has serviceGlobal Assessment of Function (“GAF”) is a numeric scale (0 through 100) mental
clinicians use to rate social, occupational and psychological functioning. See American
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 33 (4th ed. 1994)
(“DSM IV”).
5
A GAF score of 51 to 60 indicates moderate symptoms or moderate impairment in
social, occupational or school functioning. DSM IV.
6
7
The VA rating decision to which the ALJ refers is actually dated July 22, 2011.
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Tr.
connected disability evaluated at 100 percent (Ex. 5F at 2). The record
also contains another Rating Decision, with disability at 50% due to
panic disorder, 50% due to sleep apnea, 10% due to tinnitus, and 10%
due to degenerative arthritis (Ex. 23F at 41).[ 8 ] I note that the
standards used by the Department of Veterans Affairs in determining
disability are completely different that [sic] those used by the Social
Security Administration; therefore, I am not bound by the findings set
forth in the claimant’s Rating Decision (20 CFR 404.1504 and 416.904;
SSR 06-03p). Furthermore, I note that an opinion on whether an
individual is disabled goes to an issue reserved to the Commissioner and
therefore cannot be given special significance; however, such opinions
should still be considered in the assessment of the claimant’s residual
functional capacity (20 CFR 404.1527(e) and 416.927(e); SSR 96-5p).
With this in mind, I have fully considered the findings contained within
the Rating Decision, including the determination of the claimant's
disability rating. However, I gave little weight to such determination
due to its inconsistency with the objective medical evidence and the
other opinion evidence of record, which rely on standards used by the
Social Security Administration.
Tr. 27 (emphasis added). The ALJ continued to discuss specific medical records from
the VA and other medical providers and experts in her RFC analysis, including the
records considered by the VA. Tr. 25, 27-29, 642.
Generally, when reaching a decision, an ALJ is required to state with
specificity the weight he affords each item of evidence and why.
Kemp v. Astrue,
308 F. App’x 423, 426 (11th Cir. 2009) (citing Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981)). 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,
416.904; Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 940 (11th Cir. 2011).
The
778.
As noted by the Commissioner, this second VA rating decision is not raised by
Plaintiff, and thus he has abandoned any argument concerning it. Doc. 15 at 14 n.6.
8
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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
impairments:
[E]vidence of a disability decision by another governmental
or nongovernmental agency cannot be ignored and must be
considered.
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)9 (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”);
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.”).
However, “if the other agency’s standard for determining
disability deviates substantially from the Commissioner’s standard, [it is not] error
for the ALJ to give the agency’s finding less than substantial weight.”
Hacia v.
Comm’r of Soc. Sec., 601 F. App’x 783, 786 (11th Cir. 2015).
In Bonner v. City of Prichard, Ala., 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.
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Here, while the ALJ considered and scrutinized the VA’s rating decision in
determining to give it little weight and also considered the evidence on which the VA
based its rating determination, Tr. 25, 27, she did not mention the VA’s decision that
Plaintiff was unemployable. Upon review of the record, the Court determined that at
least one page was missing from the July 22, 2011 VA decision. Tr. 778–82. 10 The
first and second pages list five paragraphs of the VA’s decision, but the pages that
should have contained the reasoning for findings four and five are missing. Id.
Because paragraph four is the VA’s finding that Plaintiff’s “[e]ntitlement to
individual unemployability is granted effective December 31, 2010,” Tr. 779, the
Court cannot assume the ALJ realized pages were missing or attempt to guess what
the ALJ would have found if the record had been complete.
It is well established that “[t]he ALJ has a basic duty to develop a full and fair
record.”
Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (citing
Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (per curiam)); Ellison, 355 F.3d
at 1276; Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir. 1997) (stating the ALJ
has an affirmative duty to develop the record fully and fairly).
The Supreme Court
has held that “Social Security proceedings are inquisitorial rather than adversarial.
It is the ALJ’s duty to investigate the facts and develop the arguments both for and
against granting benefits.”
Sims v. Apfel, 530 U.S. 103, 110-11 (2000).
“This
obligation exists even if the claimant is represented by counsel, or has waived the
right to representation.”
10
Cowart, 662 F.2d at 735 (citing Thorne v. Califano, 607
One page of the decision as presented in the record is a duplicate. Tr. 779, 782.
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F.2d 218, 219 (8th Cir. 1979) and Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir.
1981)).
Thus, an ALJ must “scrupulously and conscientiously probe into, inquire of,
and explore for all relevant facts.”
marks omitted).
Cowart, 662 F.2d at 735 (internal quotation
Likewise, “[w]here there are references in the medical records to a
VA disability finding, the ALJ has the duty to develop the record relating to the other
agency’s disability findings.”
Cronin, 2012 WL 3984703, at *6 (citing Baca v. Dep’t
of Health & Human Servs., 5 F.3d 476, 479-80 (10th Cir. 1993)). Accordingly, other
courts have found remand appropriate when the ALJ did not fully develop the record
relevant to the VA’s disability rating.
Cronin, 2012 WL 3984703, at *6-*7 (finding
an error when the ALJ did not note the VA’s disability rating and dismissed the other
rating without obtaining the VA records); Alcalde v. Comm’r of Soc. Sec., No. 2:15-cv575-FtM-MRM, 2016 WL 4889988, at *6 (M.D. Fla. Sept. 15, 2016) (holding that the
ALJ erred by according little weight to the VA’s disability decision for the lack of
medical evidence and reasoning without fully developing the record); Mallory v.
Comm’r of Soc. Sec., No. 6:14-cv-1669-Orl-GJK, 2015 WL 8321898, at *4 (M.D. Fla.
Dec. 9, 2015) (finding remand appropriate because the ALJ did not attempt to obtain
the VA’s disability determination, although the record referenced the VA’s decision).
Here, part of the VA’s decision itself was missing from the record. It is unclear
whether the ALJ noticed the omission, as neither party addressed it before the Court.
Regardless, without a full VA decision in the record, the Court cannot even determine
whether the ALJ reviewed the reasoning for the unemployability finding. It therefore
cannot determine whether substantial evidence would support discounting the VA
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decision altogether for the same reason the ALJ gave the rest of the VA decision little
weight. Prior to determining the weight of the VA’s disability rating, the ALJ had a
duty to develop the record and obtain the necessary documents from the VA.
Cowart, 662 F.2d at 735; Cronin, 2012 WL 3984703, at *6-*7; Alcalde, 2016 WL
4889988, at *6; Mallory, 2015 WL 8321898, at *4. Because the ALJ failed to carefully
review the VA rating decision, determine the record was incomplete, and obtain the
missing page(s), the ALJ failed her duty to develop the record.
The Eleventh Circuit has held that “[i]n evaluating the necessity for a remand,
we are guided by whether the record reveals evidentiary gaps which result in
unfairness or clear prejudice.”
Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)
(quoting Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982) (internal citation and
quotation marks omitted)).
Although Brown and Smith each involved a claimant
that was not represented by counsel, this circuit also has held that an ALJ’s obligation
to develop a full and fair record extends to cases such as this where the claimant was
represented by counsel at the administrative level.
See Cowart, 662 F.2d at 735.
With the evidentiary gaps here, the Court simply cannot review whether substantial
evidence supports the ALJ’s decision as to the VA rating.
The Court therefore
concludes that remand is warranted here. On remand, Plaintiff shall be allowed to
supplement the record before the ALJ with the complete VA rating decision.
B. Plaintiff’s Mental RFC and Credibility
Plaintiff next argues the ALJ’s RFC and credibility assessments as to
Plaintiff’s mental impairments are not supported by substantial evidence.
at 19-21, 24-26.
Doc. 15
Because this case must be remanded to obtain and consider records
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from the VA as to Plaintiff’s disability rating, the Court will direct the ALJ to reevaluate Plaintiff’s mental impairments and credibility.
IV.
Conclusion
Upon review of the record, the undersigned concludes that for the reasons cited
in this Opinion and Order, the ALJ erred by not fully developing the record to include
the complete VA rating decision.
ACCORDINGLY, it is hereby
ORDERED:
1.
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:
A.
B.
2.
Obtain and review the records from the Department of
Veterans Affairs that relate to Plaintiff’s disability rating and
consider those records in conjunction with all of Plaintiff’s
medical records and Plaintiff’s testimony, and determine the
weight to be given to such evidence and the reasons therefor;
and
Make any other determinations consistent with this Opinion
and Order, or in the interests of justice.
The Clerk of Court is directed to enter judgment in favor Plaintiff Todd
J. Chait and close the file.
DONE and ORDERED in Fort Myers, Florida on this 6th day of June, 2018.
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Copies:
Counsel of record
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