BALDWIN v. COLVIN
ORDER re 16 Report and Recommendation. The Plaintiff's 17 Objection to the Report and Recommendation is SUSTAINED. The final decision of the Commissioner is REVERSED and REMANDED for further proceedings. The Clerk is directed to enter judgment in favor of Plaintiff and against the Commissioner and close the file. Signed by CHIEF JUDGE M CASEY RODGERS on 9/17/2015. (sdw)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
Case No. 3:14cv157/MCR/MD
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
This cause comes on for consideration upon the Magistrate Judge’s Report and
Recommendation dated August 31, 2015 (doc. 16). The parties have been furnished a
copy of the Report and Recommendation and have been afforded an opportunity to file
objections pursuant to Title 28, United States Code, Section 636(b)(1). The Court has
made a de novo determination of the timely filed objections (doc. 17).
Plaintiff objects arguing that the ALJ failed to identify the amount of weight given to
the VA disability determination, or to give it any weight at all, and asserts this is reversible
error, relying on Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. Unit A Mar. 25,
1981).1 The Court agrees with Plaintiff and respectfully disagrees with the Magistrate
Judge’s recommendation in this instance. An ALJ is required to give “great weight” to a VA
disability determination, though it is not binding; to “closely scrutinize” it; and, if necessary,
to explain why it should be discounted. Id.; see Chambliss v. Massanari, 269 F.3d 520, 522
(5th Cir. 2001) (stating the ALJ need not give great weight to a VA disability decision if the
ALJ adequately explains valid reasons for not doing so, and affirming where the ALJ had
discussed specific reasons for giving the VA determination “diminished weight”). Although
the Eleventh Circuit does not require an ALJ to quantify numerically the exact weight given
to a VA disability determination, see Adams v. Comm’r of Soc. Sec., 542 F. App’x 854 (Oct.
See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting the case
law of the former Fifth Circuit developed before October 1, 1981, as precedent in this Circuit).
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24, 2013) 2 (finding meritless a contention that the ALJ must state the “precise amount” of
weight assigned to the VA determination), or to refer to each piece of evidence, the ALJ
has a duty to sufficiently explain “the weight accorded to each item of evidence” and the
reasons for those decisions to enable a reviewing court to determine whether the ultimate
decision is based on substantial evidence, Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir.1981). The Eleventh Circuit has affirmed the Commissioner’s decision over objections
that an ALJ failed to accord “great weight” to the VA’s determination where it was clear that
the VA’s decision had been closely scrutinized and considered despite the absence of an
express statement by the ALJ of the weight accorded it. See Boyette v. Comm’r of Soc.
Sec., 605 F. App’x 777 (Feb. 18, 2015) (affirming where ALJ found VA disability rating was
not entitled to controlling weight but ALJ explained the reason in detail, assigning weight
to the VA examiner’s’ opinions, VA care provider opinions, and VA treatment records);
Adams, 542 F. App’x at 856-57 (affirming where ALJ discounted VA’s disability
determination without stating how much weight was assigned but where reasons were
given to explain why the VA treatment records were discounted, showing the VA’s
determination was expressly considered and scrutinized); Kemp v. Astrue, 308 F. App’x
423 (11th Cir. 2009) (affirming on finding ALJ “implicitly” accorded great weight to a VA
disability rating where the decision showed the ALJ had explicitly relied on the VA’s
evaluations and ratings throughout the evaluation process and relied on the VA’s
determination in finding a severe impairment). In those decisions, the Eleventh Circuit
noted that the ALJ had relied on and discussed the VA records and opinions.
For the most part, the ALJ in this instance complied with the duty to explain the
weight given to the evidence. With regard to the VA disability determination, however, the
ALJ merely referenced it and noted the VA’s rating that Plaintiff is 100% unemployable.
The ALJ did not explain whether the VA’s determination was given any weight nor did the
ALJ offer any explanation for discounting the VA’s determination except to say that the VA’s
decision is not binding and that the VA uses different standards. The ALJ then continued
with the five-step analysis with no further mention of the VA’s determination. Although the
While unpublished opinions are not considered binding, they may be considered as persuasive
authority. See 11th Cir. R. 36-2; see also United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000).
Case No: 3:14cv157/MCR/MD
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Court could infer that the ALJ had given the VA determinations great weight if the ALJ had
expressly discussed or explained some of the VA records, this is not evident. The ALJ
discussed having reviewed over 1,100 pages of treatment records and explained the weight
given to records including the claimant’s Social Security Agency interview, the Department
of Correction treatment records, and a state Social Security Agency psychological
consultant exam. But, on the Court’s review of the exhibits expressly cited, none was a VA
treatment record and the ALJ offered no explanations related to any VA treatment records.
Because the ALJ failed to explicitly discuss any VA treatment records or explain the reason
for discounting the VA’s disability determination in view of the record, the Court cannot find
that the ALJ implicitly gave close scrutiny or great weight and consideration to the VA’s
disability determination. See, e.g., Gonz v. Comm’r of Soc. Sec., 2013 WL 4494313 (M.D.
Fla. Aug. 20, 2013) (reversing and remanding for further consideration where ALJ
referenced the VA’s determination only in passing, cited the regulations stating such
decisions are not binding, and “failed to engage in any meaningful evaluation of the VA’s
decision”); Salamina v. Colvin, 8:12cv1985, 2013 WL 2352204 (M.D. Fla. May 29, 2013)
(same). Thus, the Court reverses and remands for further consideration pursuant to 42
U.S.C. § 405(g).
Accordingly, it is now ORDERED as follows:
Recommendation is SUSTAINED.
The final decision of the Commissioner is REVERSED and REMANDED for
The Clerk is directed to enter judgment in favor of Plaintiff and against the
Commissioner and close the file.
DONE AND ORDERED this 17th day of September 2015.
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
Case No: 3:14cv157/MCR/MD
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