Holman v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 1/5/17. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
DAVID EARL HOLMAN

PLAINTIFF

vs.

CIVIL ACTION NO. 3:16CV67-RP

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
Plaintiff David Earl Holman, under 42 U.S.C. § 405(g), seeks judicial review of the
decision of the Commissioner of Social Security denying his applications for a period of
disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the
Social Security Act and for supplemental security income (SSI) payments under Section
1614(a)(3) of the Act. Plaintiff protectively filed an application for benefits on September 12,
2013 alleging disability beginning on July 31, 2012. His claim was denied initially on February
5, 2014, and upon reconsideration on March 11, 2014. He filed a request for hearing and was
represented by counsel at the hearing held on October 16, 2014. The Administrative Law Judge
(ALJ) issued an unfavorable decision on November 26, 2014, and on February 4, 2016 the
Appeals Council denied plaintiff’s request for a review. Plaintiff timely filed the instant appeal
from the ALJ’s most recent decision, and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all the
proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to
issue this opinion and the accompanying final judgment. Having considered the record, the
briefs and the oral arguments of counsel on December 7, 2016, the court finds this case should be
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remanded to the Social Security Administration.
I. FACTS
Plaintiff was born on April 25, 1969 and was 45 years old at the time of the hearing. He
has a high school education and has past relevant work as a laborer. Plaintiff contends that he
became disabled before his application for benefits due to “PTSD, depression, anxiety, knee and
hand pain, and muscle spasms.” Docket 8 at 187. While this application for benefits was
pending, plaintiff obtained a VA non-service related pension based upon a diagnosis of major
depressive disorder on May 17, 2014. Docket 8 at 588-90.
The ALJ determined plaintiff suffered from “severe” impairments including depression,
anxiety, muscle spasms, joint pain, ACL tear, osteoarthritis, and degenerative disc disease but
found these impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404,
Subpart P, App. 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d) 416.925 and 416.926).
Based upon testimony by the vocational expert [VE] at the hearing and considering the record as
a whole, the ALJ determined that plaintiff retains the Residual Functional Capacity (RFC) to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except the individual can perform detailed tasks; can
concentrate for two hour periods; can have occasional contact with
the general public and with coworkers; must avoid extreme cold,
works best independently; cannot work in crowds of 10 people or
more in the immediate workspace; and pushing and pulling is
limited to 10 pounds with the lower left extremity.
Docket 8 at 14. Upon further analysis under applicable rulings and regulations, the ALJ found
plaintiff to be less than fully credible in that the intensity, persistence and limiting effects he
claimed due to his symptoms were “not entirely credible.” After evaluating all of the evidence
in the record, including testimony of a VE, the opinions of two state agency medical consultants

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and plaintiff’s records from the VA, the ALJ held that plaintiff could perform jobs that exist in
the national economy such as an order clerk and information clerk. Docket 8 at 18. As a result,
the ALJ concluded that plaintiff is not disabled under the Social Security Act. Id.
Plaintiff contends first that the ALJ erred because he failed to properly weigh the
opinions of non-examining physicians, on one hand, and the plaintiff’s VA disability rating
decision based upon an examination, on the other hand. At oral argument before this court
plaintiff argued the ALJ should have required that the records upon which the VA disability
rating decision was based, specifically the March 17, 2014 VA Rating Decision and the January
13, 2014 VA Examination, be included in the record for review. This court agrees and concludes
the ALJ’s decision was not based upon substantial evidence because he did not have relevant and
material VA records to review. Because this matter is remanded for review and consideration of
additional evidence, the court will not address plaintiff’s second argument challenging the ALJ’s
evaluation of all the evidence of record.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden rests upon plaintiff throughout the first four steps of
this five-step process to prove disability, and if plaintiff is successful in sustaining his burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove he is not currently engaged in substantial gainful activity.3 Second, plaintiff

1

See 20 C.F.R. §§ 404.1520, 416.920 (2010).

2

Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).

3

20 C.F.R. §§ 404.1520(b), 416.920(b) (2010).
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must prove his impairment is “severe” in that it “significantly limits [his] physical or mental
ability to do basic work activities . . . .”4 At step three the ALJ must conclude plaintiff is
disabled if he proves that his impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).5 If plaintiff
does not meet this burden, at step four he must prove that he is incapable of meeting the physical
and mental demands of his past relevant work.6 At step five, the burden shifts to the
Commissioner to prove, considering plaintiff’s residual functional capacity, age, education and
past work experience, that he is capable of performing other work.7 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that he
cannot, in fact, perform that work.8
The court considers on appeal whether the Commissioner’s final decision is supported by
substantial evidence and whether the Commissioner used the correct legal standard. Crowley v.
Apfel, 197 F.3d 194, 196 (5th Cir. 1999), citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993);
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The court has the responsibility to
scrutinize the entire record to determine whether the ALJ’s decision was supported by
substantial evidence and whether the proper legal standards were applied in reviewing the claim.

4

20 C.F.R. §§ 404.1520(c), 416.920(c) (2010).

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20 C.F.R. §§ 404.1520(d), 416.920(d) (2010). If a claimant’s impairment meets certain
criteria, that claimant’s impairments are “severe enough to prevent a person from doing any
gainful activity.” 20 C.F.R. § 416.925 (2003).
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20 C.F.R. §§ 404.1520(e), 416.920(e) (2010).

7

20 C.F.R §§ 404.1520(g), 416.920(g) (2010).

8

Muse, 925 F.2d at 789.
4

Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review
and may not reweigh the evidence or substitute its judgment for that of the Commissioner,9 even
if it finds that the evidence leans against the Commissioner’s decision.10 The Fifth Circuit has
held that substantial evidence is “more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence
are for the Commissioner to decide, and if there is substantial evidence to support the decision, it
must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole, provides sufficient
evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson
v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial evidence, the decision of the
[Commissioner] is conclusive and must be affirmed.” Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).
III. DISCUSSION
Of primary concern to the court in this case is the ALJ’s allocation of “little weight” to
the VA’s disability finding. Docket 8, p. 21. This is contrary to Fifth Circuit precedent holding
that a VA disability rating, while not binding in social security disability proceedings, constitutes
evidence “entitled to great weight.” Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994);
Rodriguez v. Schweiker, 640 F.2d 682, 686 (1981); Epps v. Harris, 624 F.2d 1267, 1274 (5th Cir.

9

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).

10

Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5 Cir. 1988).
th

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1980).
The ALJ’s primary explanation for giving little weight to the VA disability rating is that
“[n]othing in the medical evidence of record in Exhibit B7F or Exhibit B8F offers substantial
basis for that opinion.” Docket 8 at 21. However, those exhibits do not contain the medical
evidence upon which the VA’s opinion was based. Rather, the exhibits consist of the VA’s May
17, 2014 decision awarding the plaintiff disability benefits and the accompanying VA
correspondence to plaintiff notifying him of the decision and explaining his benefits. Docket 8
at 691-98. In fact, it appears the record in this matter does not include the evidence upon which
the VA expressly relied in reaching its decision. Of particular relevance, it would seem, but
omitted from the record are the March 17, 2014 VA rating decision and the January 13, 2014 VA
medical examination, both of which items are listed as evidence upon which the May 17, 2014
VA disability decision is based. Docket 8 at 693. The court fails to see how the ALJ could
reach an informed decision as to the weight to be given the VA disability rating – let alone give
it little weight in contravention of Fifth Circuit directives – without the benefit of the medical
evidence upon which the disability rating was based.
It is well established that an ALJ has a duty to develop the record fully and fairly and to
ensure that his decision is an informed one based on sufficient facts. Brock v. Chater, 84 F.3d
726, 728 (5th Cir. 1996). When the ALJ fails in that duty and does not have before him sufficient
facts on which to make an informed decision, his decision is not supported by substantial
evidence. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). Reversible error will be found
only when the ALJ’s failure to fully develop the record prejudices the claimant. Castillo v.
Barnhart, 325 F.3d 250, 351 (5th Cir. 2003). In order to establish prejudice, “a claimant must

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show that he ‘could and would have adduced evidence that might have altered the result.’”
Brock, 84 F.3d at 728.
In this case, the ALJ had before him a VA decision awarding the plaintiff benefits based
upon a finding the plaintiff is disabled “due to major depressive disorder,”11 one of the
conditions which the plaintiff contends render him disabled in this matter. Although the VA
decision itemized the records, including the medical examination and rating decision, upon
which the decision was based, the ALJ did not have those records before him. In keeping with
his duty to develop the record fully and fairly and to ensure that his decision is an informed one
based on sufficient facts, and rather than give little weight to the VA disability rating out of hand
in contravention of Fifth Circuit directives, the ALJ should have requested copies of the
evidence upon which the VA expressly relied in reaching its decision.12 This missing evidence
was relevant, probative, and surely available upon request. Although plaintiff made no proffer of
such evidence to this court as he should properly have done, there is at least a plausible
assumption the evidence tends to support the VA’s disability rating and might have altered the
ALJ’s decision. See Kane v, Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984) (excusing counsel’s
failure to proffer omitted evidence to district court where plausible basis existed to believe what
evidence would have shown had ALJ made proper inquiry).
Because the ALJ did not fully and fairly develop the record and did not have before him

11

Docket 8 at 693.

12

The ALJ may stop the hearing temporarily and continue it at a later date if he or she
believes there is material evidence missing at the hearing, and the ALJ may also reopen the
hearing at any time before he or she mails a notice of decision in order to receive new and
material evidence. 20 C.F.R. § 404.944.
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sufficient facts on which to make an informed decision, the court finds his decision is not
supported by substantial evidence. This matter is remanded for the ALJ to obtain and consider
the evidence expressly relied upon by the VA in making its May 17, 2014 disability rating
decision, including the March 17, 2014 VA rating decision and the January 13, 2014 VA medical
examination.
IV. CONCLUSION
The Commissioner’s denial of benefits will be remanded for additional review in
accordance with this opinion. A final judgment in accordance with this memorandum opinion
will issue this day.
SO ORDERED, this, the 5th day of January, 2017.

/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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