McNeill v. Colvin

Filing 27

ORDER granting Plaintiff's 14 Motion for Judgment on the Pleadings; denying Defendant's 18 Motion for Judgment on the Pleadings and the case is remanded to the Commissioner pursuant to sentence four of 42 USC §405(g) for further consideration. Signed by Magistrate Judge Kimberly A. Swank on 3/20/2017. (Foell, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-646-KS
ANTHONY D. MCNEILL,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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ORDER

This matter is before the court pursuant to Fed. R. Civ. P. 12(c) on the parties’
cross motions for judgment on the pleadings [DE # 14 & 18], the parties having
consented to proceed pursuant to 28 U.S.C. § 636(c). Plaintiff Anthony D. McNeill
filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial
of his application for a period of disability, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”). The parties have fully briefed the issues, and
the pending motions are ripe for adjudication. On November 10, 2016, the court held
oral argument in the matter. The court has carefully reviewed the administrative
record and the motions and memoranda submitted by the parties and considered the

Plaintiff’s complaint names Carolyn W. Colvin in her official capacity as
Acting Commissioner of Social Security as the defendant to this action. Nancy A.
Berryhill is now the Acting Commissioner of Social Security and therefore is
substituted as a defendant to this action. See Fed. R. Civ. P. 25(d).
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arguments of counsel. For the reasons set forth below, the court grants Plaintiff’s
Motion for Judgment on the Pleadings, denies Defendant’s Motion for Judgment on
the Pleadings, and remands the matter to the Commissioner for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for a period of disability and disability insurance benefits on
June 16, 2013, and for supplemental security income on June 14, 2013, alleging
disability beginning September 6, 1999. (R. 22, 285-93.) The application was denied
initially and upon reconsideration, and a request for hearing was filed. (R. 15, 14851, 184, 188.) Administrative Law Judge Mark C. Ziercher (“ALJ”) held an initial
hearing on August 1, 2014, and a supplemental hearing on March 11, 2015; the ALJ
denied benefits in a ruling issued August 3, 2015. (R. 22, 38.) Plaintiff’s request for
review by the Appeals Council was denied, making the ALJ’s decision the final
decision of the Commissioner. (R. 1.) Plaintiff now seeks judicial review of the final
administrative decision.
DISCUSSION
I.

Standard of Review
The scope of judicial review of a final agency decision denying disability

benefits is limited to determining whether substantial evidence supports the
Commissioner’s factual findings and whether the decision was reached through the
application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion; [i]t consists of more than a mere
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scintilla of evidence but may be somewhat less than a preponderance.” Craig v.

Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks and citation
omitted) (alteration in original) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)). “‘In reviewing for substantial evidence, [the court should not] undertake
to re-weigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the [Commissioner].’” Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal quotation marks omitted) (first and second alterations in original)
(quoting Craig, 76 F.3d at 589). Rather, in conducting the “substantial evidence”
inquiry, the court determines whether the Commissioner has considered all relevant
evidence and sufficiently explained the weight accorded to the evidence. Sterling

Smokeless Coal Co. v. Akers, 131 F.3d 438, 439–40 (4th Cir. 1997). “Judicial review
of an administrative decision is impossible without an adequate explanation of that
decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir.
1983).
II.

Disability Determination
In making a disability determination, the Commissioner uses a five-step

evaluation process. The Commissioner asks, sequentially, whether the claimant:
(1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an
impairment that meets or equals the requirements of an impairment listed in
20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work;
and, if not, (5) based on the claimant’s age, work experience, and residual functional
capacity can adjust to other work that exists in significant numbers in the national
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economy. See 20 C.F.R. § 404.1520; Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d
473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four
steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203
(4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show
that other work exists in the national economy that the claimant can perform. Id.
III.

ALJ=s Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff

“not disabled” as defined in the Social Security Act. At step one, the ALJ found that
Plaintiff met the insured status requirements through December 31, 2011. (R. 24.)
The ALJ noted that Plaintiff had engaged in substantial gainful employment since
the alleged onset date, but that he was “hold[ing] his ruling on this issue in abeyance”
because he was deciding Plaintiff’s claim at a different step of the evaluation process.
(Id.) Next, the ALJ determined Plaintiff had the following severe impairments: “left
foot joint pain, flat footed (pes planus); obesity; a major depressive disorder; an
anxiety disorder; and a personality disorder.” (R. 25.) The ALJ did not identify any
non-severe impairments. (R. 25-38.) At step three, the ALJ concluded that Plaintiff’s
impairments were not severe enough, either individually or in combination, to meet
or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. 25.)
Prior to proceeding to step four, the ALJ assessed Plaintiff’s residual functional
capacity (“RFC”) and found that Plaintiff had

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the residual functional capacity to perform work at the sedentary
exertional level. He can occasionally climb ramps and stairs; never climb
ladders, ropes, and scaffolds; and can occasionally balance, stoop, kneel,
crouch, and crawl. He can perform work that does not require exposure
to moving mechanical parts and high, exposed places. He can perform
work that does not require the operation of a motor vehicle. He can
perform work that is consistent with the use of a cane to stand and
walk[.] He can understand, remember, and perform work tasks at GED
Reasoning Level 03. He can perform goal-oriented rather than
production-oriented work (e.g., the performance of work tasks in allotted
time is more important tha[n] the pace at which the work tasks are
performed). He can perform work that involves routine tasks (i.e., no
more than frequent changes in core work duties). He can perform work
in which independent goal setting or planning occurs no more than
frequently. He can have occasional contact with coworkers that is
inconsequential or superficial (i.e., no sustained conversations, e.g., mail
clerk). He can have occasional contact with the general public that is
inconsequential or superficial (i.e., no sustained conversations, e.g.,
ticket taker).
(R. 27.) In making this assessment, the ALJ found Plaintiff=s statements about the
severity of his symptoms “partially credible” and listed several reasons for
discounting Plaintiff’s credibility. (R. 32-33.) At step four, the ALJ concluded Plaintiff
could not perform any past relevant work. (R. 35.) At step five, the ALJ determined
jobs exist in significant numbers in the national economy that Plaintiff could perform
and listed document preparer, envelope addresser, lens inserter of nonprescription
eyewear, and lamp shade assembler as potential occupations. (R. 36-37.)
IV.

Plaintiff’s Contentions
A.

VA Disability Determination

Plaintiff first argues that the ALJ erred in assessing a disability determination
made by the Department of Veterans Affairs. Although not binding on the
Commissioner, disability decisions by other governmental agencies “cannot be
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ignored and must be considered” by the Commissioner in making a disability
determination. SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). In Bird v.

Comm’r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012), the Fourth Circuit noted
that “both the VA and Social Security programs serve the same governmental
purpose of providing benefits to persons unable to work because of a serious
disability.” Bird, 699 F.3d at 343. “Thus, . . . in making a disability determination,
the SSA must give substantial weight to a VA disability rating” unless the record
clearly demonstrates that a lesser weight is appropriate. Id. In certain cases,
deviation may be appropriate due to the different standards employed by the agencies
in evaluating a claimant’s disability. Bird, 699 F.3d at 343 (“[B]ecause the SSA
employs its own standards for evaluating a claimant’s alleged disability . . . an ALJ
may give less weight to a VA disability rating when the record before the ALJ clearly
demonstrates that such a deviation is appropriate.”).
General differences between VA disability ratings and Social Security
disability determinations are not, however, a sufficient basis for discrediting VA
disability ratings. Such differences exist in all cases; and allowing an ALJ to discount
a VA disability rating for this reason would, therefore, eviscerate the presumptive
standard established in Bird. See Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL
5062241, at *6-7 (E.D.N.C. Aug. 10, 2015) (analyzing the Commissioner’s weighing of
an Office of Personnel Management (“OPM”) disability rating and noting that “the
reasons cited by the Commissioner—different rules and different standards—would
apply to every case and thus cannot be relied upon to avoid scrutiny of the OPM’s
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decision

under

Bird’s

new

presumptive

standard”),

memorandum

and

recommendation adopted by 2015 WL 5089060 (E.D.N.C. Aug. 27, 2015).
At issue here is a nine-page decision issued by the VA on September 19, 2013,
in which Plaintiff’s disability rating was increased to 100%. (R. 387-95.) The VA found
Plaintiff to be permanently and “totally disabled effective April 16, 2013” (R. 396)
based upon the following disabilities: major depressive disorder (70% disability);
lumbosacral strain with degenerative joint disease and intervertebral disc syndrome
(20% disability); radiculopathy in lower extremities secondary to lumbosacral strain
with degenerative joint disease and intervertebral disc syndrome (10% disability for
left lower extremity and 10% disability for right lower extremity); pes planus and
plantar fasciitis (50% disability); hallux valgus in left foot with degenerative joint
disease in left great toe (10% disability); and residual scar in left great toe (10%
disability) (R. 387-88). In its disability decision, the VA listed the evidence it
considered, including VA medical and treatment records and private provider
records. (R. 388-89.) These disabilities, and the evidence considered by the VA,
overlap significantly with Plaintiff’s Social Security claim.
However, the ALJ did not give substantial weight to the VA decision, and the
only discussion of Plaintiff’s VA disability rating is as follows:
The claimant has a disability rating from the Department of
Veterans Affairs (VA). The undersigned is neither bound nor controlled
by that agency’s decision, which is based on its regulations (20 CFR
404.1504 and 416.904). The VA rating is based solely on serviceconnected impairments, assigning a numerical rating to each discreet
[sic] impairment as a percentage of diminished earning capacity. This
differs significantly from the undersigned’s obligation to consider all
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impairments, regardless of origin, and to address with functional
specificity how the claimant’s physical and/or mental capacities are
collectively affected. The VA’s conclusion that the claimant is 100%
disabled is the addition of the individual impairment ratings and is not
interpreted as meaning that the claimant can absolutely do no work.
Further, while the VA’s assessment is not a medical opinion, the
undersigned is required to consider the medical evidence the VA used in
making its assessment. In the end, the undersigned gives the VA rating
some credibility as a general indicator of the severity of any particular
impairment.
(R. 34.) The ALJ correctly notes that there exist differences between VA disability
ratings and Social Security disability determinations and that the Commissioner is
not bound by the VA’s disability rating. But the ALJ fails to acknowledge the
similarities between the VA disability rating and a Social Security disability
determination—similarities explicitly pointed out by the Fourth Circuit in Bird.
Other circuit courts of appeals have discussed the similarities as well. See, e.g., Hall

v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015); McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002).
Moreover, the ALJ’s statement that the VA rating is “the addition of the
individual impairment ratings and is not interpreted as meaning that the claimant
can absolutely do no work” is incorrect.2 As explained in the VA’s rating decision
letter, the VA “do[es] not add the individual percentages of each condition to

The court further notes that the Social Security Act does not require a
claimant to show he “can absolutely do no work.” Rather, “disability” is defined by the
Act as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment” for a period of at least twelve
months. 42 U.S.C. § 423(d)(1)(A) (emphasis added).
2

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determine [the] combined rating. [It] use[s] a combined rating table that considers
the effect from the most serious to the least serious conditions.” (R. 400.)
Furthermore, Plaintiff was found to be permanently and totally disabled. Under VA
regulations, this means that Plaintiff was found to have “an[] impairment of mind or
body which is sufficient to render it impossible for the average person to follow a
substantially gainful occupation.” 38 C.F.R. § 3.340; see also 38 C.F.R. § 4.15
(“[P]ermanent total disability shall be taken to exist when the impairment is
reasonably certain to continue throughout the life of the disabled person.”).
In Hall, the Seventh Circuit found wanting reasoning similar to that given by
the ALJ here:
[A]lthough the VA rated [claimant] “only” 70 percent disabled, it
pronounced him totally unemployable by reason of his disability, which
equates to a finding of total disability under the regulations of the Social
Security Administration. For if your medical condition precludes
substantial gainful employment, you’re totally disabled—that’s the
Social Security Administration’s definition of disabled.

Hall, 778 F.3d at 691 (internal citation omitted). The court agrees with the Seventh
Circuit’s analysis.
Moreover, the ALJ’s statement that he awarded the VA rating “some
credibility as a general indicator of the severity of any particular impairment” lacks
sufficient specificity to demonstrate that the ALJ complied with Bird. As another
judge within this district has noted, “It is not readily apparent what this statement
actually means, and the ALJ fails to make clear what portions he found credible or
not credible and why, frustrating meaningful review.” Pridgen v. Colvin, No. 4:15-

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CV-95-F, 2016 WL 4047058, at *4 (E.D.N.C. June 30, 2016), memorandum and report

adopted by 2016 WL 4046763 (E.D.N.C. Jul. 27, 2016).
The ALJ was aware of Bird as evidenced by the following footnote in his
opinion:
The undersigned is mindful of the United States Court of Appeals
for the Fourth Circuit’s holding that a VA disability determination must
be accorded ‘substantial weight’ in Social Security disability
proceedings. However, the Court also held that ‘an Administrative Law
Judge may give less weight to a VA disability rating when the record
before the Administrative Law Judge clearly demonstrates that such a
deviation is appropriate.’ The undersigned notes that this case has not

been adopted by the Social Security Administration in a[n] acquiescence
ruling.
((R. 34 n.4) (internal citation omitted) (emphasis added).) Despite this awareness, the
ALJ did not discuss his reasons for deviating from the requirement that he afford the
VA rating substantial weight. Cf. Johnson v. Colvin, No. 5:13-CV-509-FL, 2014 WL
4636991, at *8-10 (E.D.N.C. Sept. 16, 2014) (approving ALJ’s explanation as to why
he was not affording a VA disability rating substantial weight). Furthermore, the
ALJ’s comment about the lack of an acquiescence ruling adopting Bird adds nothing
to his analysis and only intimates that the ALJ refused to apply Bird because he
disagreed with it.
In sum, the ALJ committed legal error by failing to apply Bird in determining
the appropriate weight to be afforded the VA’s disability decision. Therefore, remand
is required.

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B.

Other Contentions

The court expresses no opinion concerning Plaintiff’s remaining assignments
of error as these assignments concern matters that are not likely to recur on remand.
CONCLUSION
For the foregoing reasons, Plaintiff=s Motion for Judgment on the Pleadings
[DE #14] is GRANTED, Defendant=s Motion for Judgment on the Pleadings [DE #18]
is DENIED, and the case is REMANDED to the Commissioner pursuant to sentence
four of 42 U.S.C. § 405(g) for further consideration.
This 20th day of March 2017.
_______________________________
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KIMBERLY A. SWANK
KIMBERLY
I
LY
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United States Magistrate Judge

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