HAMM v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 23

REPORT AND RECOMMENDED DECISION re 15 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 11/14/2017 By MAGISTRATE JUDGE JOHN C. NIVISON. (jwr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GEORGE HAMM,
Plaintiff
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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2:16-cv-00627-DBH

REPORT AND RECOMMENDED DECISION
On Plaintiff George Hamm’s application for disability insurance benefits under
Title II and supplemental security income benefits under Title XVI of the Social Security
Act, Defendant, the Social Security Administration Commissioner, found that Plaintiff has
severe impairments, but retains the functional capacity to perform substantial gainful
activity. Defendant, therefore, denied Plaintiff’s request for disability benefits. Plaintiff
filed this action for judicial review of Defendant’s final administrative decision pursuant
to 42 U.S.C. § 405(g).
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court vacate the administrative decision and remand for further
proceedings.
The Administrative Findings
The Commissioner’s final decision is the October 15, 2015, decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 9-2.) The administrative record has
been supplemented, by order of the Appeals Council, to include a Department of Veterans

Affairs rating decision issued on October 27, 2015. (Notice of Appeals Council Action,
ECF No. 9-2, R. 2.)
The ALJ’s decision tracks the familiar five-step sequential evaluation process for
analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920. The ALJ
found that Plaintiff has severe, but non-listing-level impairments consisting of mood
disorder, anxiety disorder, and history of alcohol abuse. (Id. ¶¶ 3 – 4, R. 17 – 19.) The
ALJ further found that despite his impairments, Plaintiff has no exertional limitation, can
perform simple and moderately complex tasks, such as those found in semi-skilled work,
and can tolerate occasional superficial contact with the public. (Id. ¶ 5, R. 19.) In the
course of her review of the record, the ALJ considered a Department of Veterans Affairs
determination that Plaintiff has a service-related, 70 percent disability rating, but concluded
that the VA determination was not persuasive evidence that Plaintiff is disabled for
purposes of social security. (Id., R. 22.) Based on her residual functional capacity findings
and testimony from a vocational expert, the ALJ determined that Plaintiff is not disabled
because he retains the capacity to perform work existing in substantial numbers in the
national economy, including such representative occupations as hand packer, janitor, and
office cleaner. (Id. ¶¶ 10 – 11, R. 23.)
Standard of Review
A court must affirm the administrative decision provided the correct legal standards
were applied and provided the decision is supported by substantial evidence. This is so
even if the record contains evidence capable of supporting an alternative outcome. MansoPizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v.
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Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a
reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402
U.S. 389, 401 (1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The
ALJ’s findings of fact are conclusive when supported by substantial evidence, but they are
not conclusive when derived by ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Discussion
Plaintiff contends the ALJ erred because she “essentially ignored the medical
evidence supporting the VA findings,” specifically the “mental disorders examination
report completed by Dr. Kimball.” (Statement of Errors at 3, ECF No. 15, referencing Ex.
6F, R. 436 – 42.) Plaintiff further argues the ALJ’s residual functional capacity (RFC)
assessment cannot be reconciled with the medical opinion evidence of record, including
the opinions of the Disability Determination Services reviewing psychologists. (Id. at 4, 9
– 11.) In addition, Plaintiff argues that the VA rating decision presented to and considered
by the Appeals Council should have prompted the Appeals Council to remand the matter
for further administrative proceedings. (Id. at 5 – 7.)
The initial Disability Determination Services determination relied on the findings
of David Houston, Ph.D., to support certain mental residual functional capacity findings.
The determination reflects that Dr. Houston considered VA records generated through
December 4, 2013. (R. 62.) Similarly, the reconsideration decision relied on Thomas
Knox, Ph.D., to support certain mental residual functional capacity findings. The decision
reflects that the record contained, at that time, VA records generated through August 24,
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2014. (R. 87.)
As of August 24, 2014, the VA had not issued either of its rating decisions. The
rating decisions are based primarily on VA progress notes found in the record at exhibit
6F, in particular the March 25, 2015, consultative examination report of Kerry Kimball,
Ph.D., which report apparently in part informed the VA rating decisions. (R. 436.) Dr.
Houston and Dr. Knox thus did not have the opportunity to review the VA ratings and the
records upon which the ratings were based. A review of the more recent records and the
VA disability rating decisions suggests that the more recent records and decisions are not
simply cumulative of the records reviewed and relied upon by Drs. Houston and Knox.1
In her decision, the ALJ discussed the VA decision dated April 8, 2015. (Rating
Decision, Ex. 19E, ECF No. 9-6; see also Apr. 15, 2015, VA Letter to George Hamm, Ex.
5D, ECF No. 9-5.) The VA assigned a 70 percent disability rating to Plaintiff’s symptoms
of depression, anxiety, and mood disorder. The ALJ was not persuaded that the VA rating
established disability for social security purposes because the VA service-related disability
standards do not govern a social security disability determination. (ALJ Decision, R. 22.)
The ALJ also noted that Plaintiff did not testify to some of the more serious symptoms he
reported to the VA, including suicidal ideation. (R. 20 – 21.)

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Disability Determination Services obtained a psychological report from James Whelan, Jr., Psy. D. (Ex.
2F.) In his report, dated January 22, 2014, Dr. Whelan observed that “[s]erious psychological limitation,
in terms of his ability to do work related activity, caused by affective disorder, attentional issues, anxiety,
possible cognitive disorder, and possible personality change, appears to best describe George Hamm at this
point.” (R. 369.) While Dr. Whelan stated that Plaintiff “has the apparent cognitive ability to be able to do
work that is more than simple and repetitive,” he opined that “[e]ven with such work, affective disorder,
attentional issues, anxiety, and cognitive disorder may singly or in combination restrict his ability to take
in information he could otherwise understand.” (Id.) The ALJ gave Dr. Whelan’s opinion “little weight”
for being heavily dependent on Plaintiff’s subjective complaints. (ALJ Decision, R. 21.)

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After the ALJ hearing, Plaintiff received another rating decision from the VA, dated
October 27, 2015. (ECF No. 15-1.)2 In its report, the VA continued the 70 percent
disability finding based on Plaintiff’s psychological condition.

(Id. at 3.)

Plaintiff

submitted the VA’s determination to the Appeals Council, but the Appeals Council found
that the evidence did not support a reconsideration of the ALJ’s decision. (R. 2.) In part,
the Appeals Council found that the VA decision was immaterial because it was “about a
later time” and therefore could not impact the ALJ’s decision. (Id.)
Plaintiff argues the Appeals Council’s decision was an erroneous decision because
the VA rating decision clearly involved the same underlying symptoms and time period.
(Statement of Errors at 7 – 8.) Defendant does not directly challenge Plaintiff’s contention
that the “about a later time” finding was incorrect, but argues the finding was not an
“egregious error” that requires a remand because the VA determination did not “deviate”
from the earlier VA decision the ALJ reviewed. (Defendant’s Opposition at 3, ECF No.
19.)
In this District, a VA disability decision is entitled to some weight. Flannery v.
Barnhart, No. 1:06-cv-37-JAW, 2006 WL 2827656, at *2 (D. Me. Sept. 29, 2006), report
and recommendation adopted, 2006 WL 3032419 (D. Me. Oct. 20, 2006) (remanding
where the ALJ rejected VA disability determination out of hand and none of the experts
upon whom the VA relied had reviewed the determination or associated evidence). Here,
the ALJ considered the April 2015 VA decision, but none of the Disability Determination
Services consultative experts she relied upon reviewed or discussed the VA determination

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The October 2015 VA decision is also attached to Plaintiff’s Statement of Errors. (ECF No. 15-1.)

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or Dr. Kimball’s findings, upon which findings the VA decisions are at least in part based.
In fact, the ALJ did not discuss Dr. Kimball’s findings. The ALJ thus not only failed to
consider the most recent VA rating, but neither she nor the consultative experts upon whom
she relied reviewed or discussed Dr. Kimball’s findings. Even acknowledging the different
standard that applies to a VA disability determination, given that both of the VA’s 70%
disability ratings for Plaintiff’s psychological condition are based in part on an evaluative
examination of Plaintiff conducted after the consultative experts completed their
assessments, the VA ratings and the findings of Dr. Kimball are not immaterial to the
disability determination in this case. The ALJ did not address the findings or the most
recent rating. Remand, therefore, is warranted.3
CONCLUSION
Based on the foregoing analysis, I recommend the Court vacate the administrative
decision and remand the matter for further proceedings.

NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.

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Upon remand, regardless of whether the ALJ determines that the VA ratings and related records require a
different conclusion, the ALJ should also address in her RFC finding whether Plaintiff’s capacity is
restricted in any way based on Plaintiff’s ability to adapt to changes in routine and Plaintiff’s ability to
understand and remember simple instructions. If the ALJ’s failure to address the issues was error as
Plaintiff asserts, the issue would have been whether on the current record the error was harmless.

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Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 31st day of October, 2017.

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