TULLIS v. COLVIN

Filing 12

ORDER adopting 10 Report and Recommendations. The Plaintiff's case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/18/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARVIN DANIEL TULLIS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.

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CIVIL ACTION NO. 5:15-CV-162(MTT)

ORDER
United States Magistrate Judge Charles H. Weigle recommends remanding the
Plaintiff’s case pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 10). The
Commissioner has filed an objection to the Recommendation. (Doc. 11). Pursuant to
28 U.S.C. § 636(b)(1), the Court has considered the Commissioner’s objection and has
made a de novo determination of the portions of the Recommendation to which the
Commissioner objects.
The Plaintiff, a veteran of the United States Navy, received a 100% disability
rating from the Department of Veterans Affairs (“VA”). (Docs. 6-2 at 29, 54; 10 at 3).
Social Security Administration (“SSA”) regulations, however, 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.” Ostborg v. Comm’r of Soc. Sec., 610 F.
App’x 907, 914 (11th Cir. 2015) (citing 20 C.F.R. § 404.1504). “Instead, the

Commissioner must ‘make a disability ... determination based on social security law.’”
Boyette v. Comm’r of Soc. Sec., 605 F. App’x 777, 779 (11th Cir. 2015) (alteration in
original) (quoting 20 C.F.R. § 404.1504). But while VA disability ratings are not binding
on the ALJ, “such ratings should be considered and ‘given great weight.’” Id. (quoting
Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984)). An ALJ need not expressly state
that she gave “great weight” to the VA disability rating but may implicitly make that
determination. See, e.g., Adams v. Comm’r of Soc. Sec., 542 F. App’x 854, 856-57
(11th Cir. 2013); Kemp v. Astrue, 308 F. App’x 423, 426 (11th Cir. 2009). Moreover, an
ALJ should “consider and address the VA’s Rating Decision itself,” not just the VA
medical records. Williams v. Barnhart, 180 F. App’x 902, 902 (11th Cir. 2006).
The ALJ discussed the VA disability ratings twice in her decision. First, she
acknowledged that “[a]t the hearing, the [Plaintiff] reported he received 100% VA
Disability in 2012,” and she elaborated:
His service connection rated disabilities included the following: paralysis of
sciatic nerve (40%), paralysis of sciatic nerve (40%), degenerative arthritis
of the spine (40%), migraine headaches (30%), paralysis of ulnar nerve
(30%), paralysis of ulnar nerve (20%), limited flexion of knee (20%),
degenerative arthritis of the spine (20%), tendon inflammation (10%),
limited motion of ankle (10%), limited motion of the jaw (10%), residuals of
foot injury (10%), limited flexion of knee (10%), residuals of foot injury
(10%), limited motion of ankle (10%), tinnitus (10%), superficial scars
(10%), scars (0%)[,] scars (0%), stricture of the urethra (0%), and
dermatophytosis (0%). The undersigned notes that despite a finding of
100% disability by the Veteran’s Affairs Administration, Social Security
was not bound by the same rules and regulations when determining
disability.
(Doc. 6-2 at 29).
The second time the ALJ discussed the VA disability ratings was at the
conclusion of her analysis:

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At the hearing, the claimant reported that he became 100% service
connected disabled by the VA in 2012. The undersigned notes that some
of the impairments alleged by the claimant are very recent. Additionally,
the record did not indicate that any surgery had been recommended for
the claimant’s conditions and he was encouraged to go to physical therapy
and exercise. Indeed, there are references in the medical records that
suggest the claimant was actively running or exercising. As for his mental
impairments, he has received minimal mental health treatment. In sum,
the objective medical evidence of record does not reveal significant
functional limitations that would preclude the claimant from performing all
work.
(Doc. 6-2 at 34).
The Magistrate Judge concluded that the ALJ’s second discussion “did not
specifically address any factors or reasons that detracted from the [VA’s disability
finding] or clarify the weight given to the determination.” (Doc. 10 at 35). “Because the
ALJ merely stated that the VA rating was not binding due to the different standards,” the
Magistrate Judge also concluded that he could not “determine that the ALJ gave
sufficient consideration to the VA rating.” (Doc. 10 at 37-38). The Magistrate Judge
distinguished this case from others where the ALJ sufficiently accounted for the VA
rating by noting that “the ALJ here did not continuously refer to the VA rating throughout
her decision or provide any specific detail regarding her consideration of the VA rating.”
(Doc. 10 at 37). Finally, the Magistrate Judge concluded that he could not “tell what
weight, if any, the ALJ gave to the various VA disability ratings for each impairment.”
(Doc. 10 at 38).
The Commissioner objects to the Magistrate Judge’s conclusion that “the ALJ did
not sufficiently articulate the weight given to a [VA] disability rating.” (Doc. 11 at 1). The
Commissioner argues the ALJ sufficiently explained the consideration given to the “VA
rating” in three ways: (1) explaining “that the VA disability rating was inconsistent with

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Plaintiff’s conservative treatment for his physical and mental impairments,” (2) noting
“that the VA disability rating was inconsistent with Plaintiff’s daily activities,” and (3)
noting “generally that objective evidence was not consistent with the VA disability rating”
and discussing the evidence in detail. (Doc. 11 at 3-4). The Commissioner does not
address or object to the Magistrate Judge’s conclusion that he could not tell if the ALJ
gave any weight to the VA disability ratings for each of the Plaintiff’s impairments.
Although the ALJ’s second reference to the VA disability ratings acknowledged
the Plaintiff’s “report” of a 100% service connected disability, the ALJ did not appear to
address the VA’s actual rating decision, and she clearly did not discuss the specific
ratings determinations by the VA. (Docs. 6-2 at 26-34; 6-8 at 43-50). Rather, she noted
that the Plaintiff is alleging more recent, apparently additional, impairments. It is not
clear if the ALJ meant to suggest more recent claimed impairments undercut the VA’s
determination that impairments of earlier onset warranted a 100% disability rating and, if
she did, why this would be the case. Next, the ALJ said that no “surgery had been
recommended for the [Plaintiff’s] conditions and he was encouraged to go to physical
therapy and exercise[, and] there are references in the medical records that suggest
[he] was actively running or exercising.” (Doc. 6-2 at 34). While this suggests that the
ALJ generally disagreed with the Plaintiff’s contention that he was disabled, it does not
address the VA’s ratings. Finally, the ALJ refers to the Plaintiff’s alleged mental
impairments, which were not the subject of the VA’s disability rating.
Thus, while the ALJ rejected the Plaintiff’s “report” of a 100% VA disability rating,
the ALJ’s decision does not reveal that she gave any weight to the VA’s rating decision.
Indeed, after the only reference to the specific ratings determinations by the VA, the ALJ

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simply said they were not binding. See Gonz v. Comm’r of Soc. Sec., 2013 WL
4494313, at *4 (M.D. Fla.) (noting that such a statement, without any meaningful
evaluation of the VA’s decision, suggests that the ALJ believed she “was entitled to
ignore the VA’s decision or did not think an evaluation thereof was required”).
Therefore, the Court is unable to conclude that the ALJ properly considered the VA
disability rating in making her own determination. See, e.g., Burch-Mack v. Comm’r of
Soc. Sec., 2016 WL 4087477, at *4-5 (M.D. Fla.); cf. Boyette, 605 F. App’x at 779
(holding there was “no indication that [the ALJ] failed to give the VA’s determination
great weight or consideration” where she “scrutinized the VA’s decision and explained in
detail why it was not entitled to controlling weight”); Adams, 542 F. App’x at 857
(“[A]lthough the ALJ did not expressly state that he gave ‘great weight’ to the VA’s
rating, the record shows that he expressly considered and closely scrutinized it.”).
The Court accepts and adopts the findings, conclusions, and recommendations
of the Magistrate Judge. The Recommendation is ADOPTED and made the order of
this Court. Accordingly, the Plaintiff’s case is REMANDED pursuant to sentence four of
42 U.S.C. § 405(g).
SO ORDERED, this 18th day of August, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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