Clay v. Commissioner of Social Security
Filing
31
MEMORANDUM OPINION & ORDER Signed by Magistrate Judge Lanny King on 2/22/2018 granting 23 Motion for Judgment on the Pleadings. A separate judgment shall issue. cc: Counsel(KJA)
LOWELL THOMAS CLAY
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:17‐CV‐00045‐LLK
PLAINTIFF
DEFENDANT
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff's Complaint seeking judicial review, pursuant to 42
U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability
benefits. Plaintiff filed a Motion for Judgment on the Pleadings (Docket #23), to which Defendant
responded in opposition (Docket # 30), and the case is ripe for determination. The parties have
consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any
appeal lying before the Sixth Circuit Court of Appeals. (Docket # 18).
Plaintiff, a former combat veteran, applied for disability benefits through the Veterans
Administration (VA). The VA adjudicated him to be 70‐percent disabled due to service‐connected post‐
traumatic stress disorder (PTSD) and, effective December 3, 2014, increased his disability rating to 100
percent based on the December 3, 2014 findings and opinions of VA clinical psychologist Anne
Goodnow, Psy.D. Adjudication at Administrative Record (AR), p. 297; findings at AR, pp. 1541‐48.
20 C.F.R. § 404.1527(c) requires that “[r]egardless of its source [e.g., the VA], we [i.e., the Social
Security Administration] will evaluate every medical opinion we receive.” The Administrative Law
Judge’s (ALJ’s) mental residual functional capacity (RFC) finding did not accord with applicable legal
standards because the ALJ’s decision did not “evaluate” (or even mention) Dr. Goodnow’s assessment.
Accordingly, the Court will GRANT Plaintiff’s Motion for Judgment on the Pleadings (Docket #
23) and REMAND this matter to the Commissioner for a new decision evaluating Dr. Goodnow’s findings
and opinions.
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In performing the requested review of the ALJ’s mental RFC determination,
the Court considered Dr. Goodnow’s assessment.
Plaintiff argues that the ALJ’s mental “RFC determination is not supported by substantial
evidence” (Docket # 23‐1, p. 10), and he gives six supporting reasons (Id., pp. 11‐16). The fourth reason
is the VA’s December 3, 2014 increase of disability rating to 100 percent. According to Plaintiff: “[t]his
change was based on total occupational and social impairment; difficulty in adapting to work, stressful
circumstances, and worklike setting; disturbances of motivation and mood; difficulty in establishing
effective work and social relationships; impairment of short‐ and long‐term memory; mild memory loss;
depressed mood; chronic sleep impairment; anxiety; and suspiciousness” (Docket # 23‐1, p. 15 referring
to VA Reasons For Decision at AR, p. 297).
These reasons for changing its disability rating cited by the VA correspond precisely to the
clinical symptoms identified by Dr. Goodnow in her completion of the PTSD Disability Benefits
Questionnaire (AR, pp. 1547‐48). While Plaintiff’s Memorandum in Support of Motion for Judgment on
the Pleadings (Docket # 23‐1) does not specifically mention Dr. Goodnow by name, the Court will
exercise its discretion to consider Dr. Goodnow’s findings and opinions contained in her completion of
the PTSD Questionnaire (AR, pp. 1541‐48) in reviewing the ALJ’s mental RFC determination.
The ALJ erred in not evaluating the weight given to Dr. Goodnow’s assessment.
Plaintiff is a veteran of the Gulf War Era, having served in the Army from September 22, 1998
through November 26, 2013. AR, p. 296. He was deployed to Iraq on three occasions. During his first
deployment from February 2003 through February 2004, he was engaged in heavy firefights, which
resulted in his witnessing many deaths. (AR, pp. 733‐734). One particularly traumatic event occurred
when he was forced to kill a young boy who was about the same age as his 10 year old son. (Id.) The
Iraqi boy had an AK‐47, and Plaintiff felt his life was in danger. (Id.) During Plaintiff’s second
deployment from April 2005 through April 2006, his unit provided route security, his convoy took direct
and indirect fire daily and experienced a number of improvised explosive device (IED) attacks. (Id.)
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During his third deployment from April 2008 through April 2009, Plaintiff provided personal security
detail, engaged in firefights, mortar fire, and rocket attacks. (Id.) Plaintiff never felt safe. (Id.)
Dr. Goodnow’s PTSD Questionnaire tracks Criteria A through H of the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (DSM‐5). According to Dr. Goodnow, Plaintiff’s A through H
Criteria ratings are as follows (AR, pp. 1545‐47):
Criterion A
Exposure to actual or threatened a) death, b) serious injury, c) sexual violation, in one or more
of the following ways:
• Directly experiencing the traumatic event(s)
• Witnessing, in person, the traumatic event(s) as they occurred to others.
Criterion B
Presence of (one or more) of the following intrusion symptoms associated with the traumatic
event(s), beginning after the traumatic event(s) occurred:
• Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s)
• Recurrent distressing dreams in which the content and/or affect of the dream are related to
the traumatic event(s)
• Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic
event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme
expression being a complete loss of awareness of present surroundings).
• Intense or prolonged psychological distress at exposure to internal or external cues that
symbolize or resemble an aspect of the traumatic event(s)
• Marked physiological reactions to internal or external cues that symbolize or resemble an
aspect of the traumatic event(s)
Criterion C
Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the
traumatic event(s) occurred, as evidence by one or both of the following:
• Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely
associated with thee traumatic event(s)
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• Avoidance of or efforts to avoid external reminders (people, places, conversations, activities,
objects, situations) that arouse distressing memories, thoughts, or feelings about or closely
associated with the traumatic event(s)
Criterion D
Negative alterations in cognitions and mood associated with the traumatic event(s), beginning
or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the
following:
• Persistent and exaggerated negative beliefs or expectations about oneself, others, or the
world (e.g., “I am bad,” “No one can be trusted,: “the word is completely dangerous,: “My
whole nervous system is permanently ruined”).
• Persistent, distorted cognitions about the cause or consequences of the traumatic event(s)
that lead to the individual to blame himself/herself or others.
• Persistent negative emotional state (e.g., fear, horror, anger, guilty, or shame).
• Marked diminished interest or participation in significant activities.
• Feelings of detachment or estrangement from others.
Criterion E
Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or
worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the
following:
• Irritable behavior and angry outbursts (with little or no provocation) typically expressed as
verbal or physical aggression toward people or objects.
• Hypervigilance.
• Exaggerated startle response.
• Problems with concentration.
• Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
Criterion F
The duration of the symptoms described above in Criteria B, C, and D are more than 1 month.
Criterion G
The PTSD symptoms described above cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning.
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Criterion H
The disturbance is not attributable to the physiological effects of a substance (e.g., medication,
alcohol) or another medical condition.
Despite the foregoing specific and extreme DSM‐5 PTSD clinical criteria, which the ALJ did not
acknowledge, the ALJ found that Plaintiff’s PTSD results in non‐disabling mental limitations:
He can perform simple, routine, repetitive work tasks, meaning tasks that apply commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic form, with
the ability to deal with problems involving several concrete variables in and from standardized
situations. The claimant can occasionally interact with coworkers and supervisors. He cannot
maintain sustained interaction with the general public. He should not work in a fast paced or
production based work environment, but can do entry level or goal oriented work.
(AR, p. 17).
The above mental RFC determination is not supported by substantial evidence and is not in
accord with applicable legal standards because it fails to evaluate, take into account, or even recognize
the existence of Dr. Goodnow’s findings and opinions. See 20 C.F.R. § 404.1527(c) (“Regardless of its
source, we will evaluate every medical opinion we receive”).
The ALJ did not err in discounting the VA disability rating itself.
While the ALJ erred in not considering the clinical evidence that formed the underlying basis of
the VA disability rating of 100 percent, the ALJ did not err in discounting the rating itself. The ALJ
properly found that the VA disability decision is not binding for Social Security disability purposes
because different rules and standards apply. Compare ALJ’s decision at AR, p. 25 with 20 C.F.R. §
404.1504 (“[A] determination made by another agency that you are disabled or blind is not binding on
us [the social security administration]” because it is “based on its rules” rather than “social security
law”).
This does not mean, however, that medical evidence generated as part of the VA disability
evaluation process may not be binding or may be ignored under the rubric of the non‐binding nature of
the decision itself. See Hicks v. Comm’r of Soc. Sec., No. 1:15‐cv‐110, 2016 WL 490049, at *7 (S.D. Ohio
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Jan. 6, 2016) (holding that, although a VA disability rating is not binding, this does not provide an ALJ
“carte blanche” to reject “the objective evidence cited in the [VA] Disability Decision”) and Golden v.
Comm’r, No. 3:14‐CV‐492, 2015 WL 8917876 (E.D. Tenn. Nov. 23, 2015) (remanding case for
consideration of examining VA psychiatrist’s opinion that formed the underlying basis for VA’s increasing
disability rating due to PTSD from 70 to 100 percent).1
Dr. Goodnow’s findings and opinions were based on standard clinical criteria and were not
premised upon and did not take into account special rules or procedures of VA disability evaluation. The
ALJ discounted the VA disability rating due to evidence of subsequent improvement with treatment,
including improved general assessment of functioning (GAF) scores, and increased daily activities (AR, p.
25). While this provided an adequate basis for discounting the VA disability rating, it did not provide an
adequate reason for discounting Dr. Goodnow’s findings and opinions.
Plaintiff’s remaining arguments are unpersuasive.
As stated above, Plaintiff argues that the ALJ’s mental “RFC determination is not supported by
substantial evidence” (Docket # 23‐1, p. 10), and he gives six supporting reasons (Id., 11‐16). The fourth
reason is the VA’s December 3, 2014 disability rating of 100 percent. For the reasons above, the
argument is unpersuasive to the extent it is based on the rating itself and persuasive to the extent it is
based on the ALJ’s failure to recognize the clinical evidence that formed the rating’s underlying basis.
However, for the reasons below, Plaintiff’s Reasons 1, 2, 3, 5, and 6 are unpersuasive.
First, Plaintiff argues that Drummond v. Comm’r, 126 F.3d 837 (6th Cir. 1997) bound the ALJ to
the prior ALJ’s finding that he “can tolerate minimal superficial contact with coworkers and supervisors,
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The case law anticipates the amendments to 20 C.F.R. § 404.1504, which apply to claims filed on or after March
27, 2017 (and, therefore, do not apply in this case, which was filed before March 27, 2017). The amended version
of the regulation continues to uphold the principle that a disability determination of another agency “is not
binding on us” and adds that “we will not provide any analysis in our determination” regarding the other agency
determination. “However, we will consider all of the supporting evidence underlying [the other agency
determination] that we receive as evidence in your claim in accordance with § 404.1513(a)(1) through (4).” 20
C.F.R. § 404.1504.
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but no contact with the general public” (AR, p. 64). The ALJ recognized that Drummond bound her to
“the previously adjudicated [RFC], absent evidence of medical improvement or worsening of his
condition” (AR, p. 18). As noted above, the ALJ found evidence of subsequent improvement with
treatment, including improved GAF scores, and increased daily activities (AR, p. 25). This finding
warranted departure from the prior ALJ’s RFC finding. Additionally, as the prior decision was a denial
decision, even if the ALJ were bound to the prior ALJ’s RFC findings, this would not require an ultimate
finding of disability. In other words, Plaintiff has failed to show that any error was harmful.
Second, Plaintiff argues that ALJ erred in declining to defer to certain “marked” limitations found
by the one‐time consultant, licensed psychological practitioner (LPP) P. Leanne Scott, M.S. Among other
things, Ms. Scott found that Plaintiff is markedly limited in his abilities to tolerate stress and pressure of
day‐to‐day employment and to response appropriately to the general public, supervisors, and co‐
workers (AR, p. 1363). The ALJ rejected this finding for the same reasons she found herself not bound
by the prior ALJ’s findings, i.e., improvement with treatment and increased daily activities (AR, pp. 21‐22
and 25‐26).
Third, Plaintiff argues that the ALJ erred in declining to accept certain findings of his
readjustment counselor at the Nashville Vet Center, Elizabeth Sherr, M.A. Ms. Sherr completed the
Mental Impairment Medical Source Statement, finding, among other things, that Plaintiff has “poor or
no” useful ability to function mentally in 5 of 16 areas necessary to perform even unskilled work (AR, p.
1464). The ALJ gave “no weight” to these disabling findings because Ms. Sherr is an “other” (as opposed
to an “acceptable”) medical source as contemplated by 20 C.F.R. § 404.1527. Ms. Sherr offered no
supporting evidence from the treatment record, and her findings are, in fact, inconsistent with the VA
treatment notes (AR, p. 26).
Fifth, Plaintiff argues that the ALJ improperly dismissed his wife’s Third Party Function Report.
(ALJ’s decision at AR, pp. 24‐25, referring to Report at AR, pp. 240‐248). The ALJ found Mrs. Clay’s
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