Ellison v. Berryhill
Filing
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ORDER denying 18 Motion for Judgment on the Pleadings and granting 22 Motion for Judgment on the Pleadings. The final decision of the Commissioner is affirmed. Signed by US Magistrate Judge Robert B. Jones, Jr. on 7/30/2018. (Grady, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-156-RJ
DAVID A. ELLISON,
Plaintiff/Claimant,
v.
ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.
This matter is before the court on the parties' cross-motions. for judgment on the
pleadings [DE-18, DE-22] pursuant to Fed. R. Civ. P. 12(c).
Claimant David A. Ellison
("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the denial of his application for a period of disability and Disability Insurance Benefits
("DIB"). The time for filing responsive briefing has expired, and the pending motions are ripe
for adjudication.
Having carefully reviewed the administrative record and the motions and
memoranda submitted by the parties, Claimant's Motion for Judgment on the Pleadings is
denied, Defendant's Motion for Judgment on the Pleadings is allowed, and the final decision of
the Commissioner is affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on October
27, 2014, alleging disability beginning January 8, 2014. (R. 165-66). His claim was denied
initially and upon reconsideration. (R. 53-83). A hearing before the Administrative Law Judge
("ALJ'') was held on February 17, 2017, at which Claimant, represented by counsel, and a
vocational expert ("VE") appeared and testified. (R. 33-52). On May 15, 2017, the ALJ issued
a decision denying Claimant's request for benefits. (R. 10-30). The Appeals Council denied
Claimant's request for review on July 25, 2017. (R. 1-5). Claimant then filed a complaint in this
court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under
the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., 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 Coffin,an v. Bowen, 829 F.2d
514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by
substantial evidence, shall be conclusive .... " 42 U.S.C. § 405(g). Substantial evidence is
"evidence which a reasoning mind would accept as sufficient to support a particular conclusion."
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large
or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is
"more than a mere scintilla ... and somewhat less than a preponderance." Laws, 368 F.2d at
642.
"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) (quoting Craig v. Chafer,
76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. §
416.927(d)(2)). Rather, in conducting the "substantial ,evidence" inquiry, the court's review is
limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her
findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 439-40 (4th Cir. 1997).
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III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set
forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e.,
currently working; and (2) must have a "severe" impairment that (3) meets or
exceeds [in severity] the "listings" of specified impairments, or is otherwise
incapacitating to the extent that the claimant does not possess the residual
functional capacity to (4) perform ... past work or (5) any other work.
Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim
fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v.
Chafer, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted).
The burden of proof and
production during the first four steps -of the inquiry rests on the claimant. Id At the fifth step,
the burden shifts to the ALJ to show that other work exists in the national economy which the
claimant can perform. Id
When assessing the severity of mental impairments, the ALJ must do so in accordance
with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme
identifies four broad functional areas in which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairment(s): understand, remember, or apply information;
interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id §
404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings
and conclusions based on the "special technique." Id §'404.1520a(e)(3).
'
In this case, Claimant alleges the ALJ erred by failing to appropriately weigh a 100%
disability rating by the Department of Veterans Affairs (the "VA") connected to Claimant's posttraumatic stress disorder ("PTSD"). Pl.'s Mem. [DE-19] at 14-20.
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IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant
"not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in
substantial gainful employment since the alleged onset date. (R. 15). Next, the ALJ determined
Claimant had the severe impairments of PTSD and degenerative disc disease, and the non-severe
impairments of sleep disorder and depression. (R. 15-16). However, at step three, the ALJ
concluded these 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. 16-19).
Applying the technique prescribed by the regulations, the ALJ found that
Claimant's mental impairments had resulted in moderate limitations 'in interacting with others,
understanding, remembering, or applying information, concentrating, persisting, and maintaining
pace, and adapting or managing oneself. (R. 17-18). Prior to proceeding to step four, the ALJ
assessed Claimant's RFC, finding he had the ability to perform light work 1 with the following
limitations:
Due to postural limitations, the claimant is limited to no climbing or crawling.
Due to environmental limitations, the claimant is limited to no exposure to
workplace hazards. Additionally, the claimant must be allowed the option to
alternate between sitting and standing at will to be exercised for 10 minutes each
working hour. Due to mental limitations, the claimant is limited to unskilled work
in a low stress work environment requiring only occasional decision making or
changes. The claimant is further limited to no interaction with the public and only
occasional interaction with coworkers or supervisors including jobs requmng
cooperation with coworkers and not just physical proximity.
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Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary
work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long
periods oftime. 20 C.F.R. § 404.1567(b).
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(R. 19-25). At step four, the ALJ concluded Claimant did not have the RFC to perform the
requirements of his past relevant work. (R. 25). Nonetheless, at step five, upon considering
Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable
of adjusting to the demands of other employment opportunities that exist in significant numbers
in the national economy. (R. 26-47).
V. DISCUSSION
A.
The VA Disability Rating
Claimant contends the ALJ erred in failing to accord substantial weight to his PTSD-
connected 100% VA disability rating without demonstrating a deviation was appropriate in
violation of Bird v. Commissioner of Social Security Administration, 699 F.3d 337 (4th Cir.
2012). Pl.'s Mem. [DE-19] at 14-20. Specifically, Claimant alleges three errors in the ALJ's
analysis: failing to assign a specific weight to the VA disability rating, making inconsistent
findings, and failing to demonstrate that assigning less than substantial weight to the VA decision
was appropriate. Id
The Commissioner contends the ALJ's determination is supported by
substantial evidence. Def.'s Mem. [DE-23] at 6-8.
In Bird, 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."
699 F.3d at 343 (citation omitted).
"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. ("[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.").
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The ALJ considered the VA's decision as follows:
[T]he claimant is a recipient of Veterans benefits. I am mindful that the claimant
has been found disabled by the Veteran's Administration (VA) and is currently
receiving disability payments from that agency. (Exhibits 1F-2F and 5F-7F)[.]
That finding corresponded to the claimant's testimony that he was granted a
service connected rating of 100% for Post-Traumatic Stress Disorder (PTSD) and
60% for his back.
However, the Social Security Administration makes
determinations of disability according to Social Security law, therefore a
determination of disability by another agency is not binding on this
Administration. (§§ 20 CFR 404.1504 and 416.904). With this in mind, after
weighing and measuring the extensive medical evidence from the VA, I find that
their determination does substantiate the awarding of disability benefits pursuant
to their regulations. However, the value of their opinions is reduced because the
VA records appear to rely heavily upon the claimant's subjective complaints rather
than diagnostic findings of examination evidence. Therefore, as discussed in more
detail below, while I do agree with the VA determination that medically
determinable impairments limit the claimant's functioning, I do not find that they
fully establish disability under SSA criteria.
(R. 24-25).
Claimant contends that the ALJ's statement seemingly affirming the VA's decision to
award benefits under the VA regu1ations is inconsistent with his determination that Claimant's
PTSD is not disabling. To the extent the ALJ is attempting to distinguish between the VA and
SSA regulations, while they are obviously distinct, the Fourth Circuit in Bird recognized that
"the purpose and evaluation methodology of both [the VA and SSA disability] programs are
closely related." 699 F.3d at 343. Nevertheless, the ALJ's statement ultimately amounts to
nothing more than dictum, or at worst harmless error. The ALJ went on to explain that his
decision to discount the VA disability rating was based on the fact that it relied heavily on
Claimant's subjective complaints, rather than diagnostic findings or examination evidence. (R.
25). Further, as discussed in detail below, the ALJ considered the treatment records from the VA
and determined they did not establish that Claimant's PTSD precluded him from performing all
work.
(R. 21-22).
Therefore, under the circumstances, the ALJ's statement regarding the
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correctness of the VA's determination under its own standards is not grounds for remand.
See
McDonald v. Colvin, No. 3:15-CV-00598-MOC, 2016 WL 4084040, at *7 (W.D.N.C. July 29,
2016) (upholding the ALJ's decision to give less weight to a favorable VA disability rating
despite the ALJ's erroneous statement, in contravention of Bird, that VA disability ratings are "of
little probative value," where the ALJ went on to fully consider the VA disability rating and
provided substantial evidence for discounting it).
Claimant also contends the ALJ did not sufficiently explain his reasoning for deviating
from the VA disability rating. Despite the abbreviated nature of the ALJ's explanation, the ALJ's
decision read as a whole contains substantial evidence supporting the deviation. In the RFC
discussion, the ALJ considered much of the evidence Claimant cites in his brief. The ALJ
acknowledged Claimant's testimony regarding the effects of his PTSD, including problems with
anger, being fired from 10 of the 15 to 17 jobs he held since his military discharge in 1993,
altercations with supervisors, co-workers, family members, and strangers, destroying property at
work and at home, experiencing road rage, and brandishing a gun. (R. 20). The ALJ also noted
Claimant's testimony that, as a result of his PTSD, he usually stays at home, isolates himself in
his room, and experiences suicidal thoughts regularly.
Id.
The ALJ recounted Claimant's
treatment with the VA fot his PTSD, beginning in 2010 through November 2016, as follows:
In 2010, the claimant reported PTSD symptoms during a mental health evaluation
with a team of two licensed counselors and social workers (Exhibit 2F/306-313).
Starting on June 7, 2010, the claimant began presenting for counsel~ng to address
his PTSD symptoms (Exhibit 2F/303). By October 25, 2010, Thomas Kirtley,
M.D., was treating the claimant's PTSD related symptoms with prescription
medications including Citalopram (Exhibit 2F/293-294). By December 23, 2010,
the claimant reported improvement in his symptoms (Exhibit 2F/286-287).
Subsequently, the claimant continued to present for recurring PTSD counseling
sessions (Exhibit 2F/134-284). After his alleged onset date, the claimant was
screened positively for PTSD on April 22, 2014 (Exhibit 5F/51). During a
follow-up on August 11, 2014, the claimant reported suicidal ideations (Exhibit
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5F/32). However, [claimant] also reported that these ideas were "not as intense"
and that his emotional outbursts have improved following treatment with
medications (Exhibit 5F/32). Subsequently, the claimant continued to present for
group counseling sessions related to his PTSD (Exhibit 5F/8-28). On November
11, 2014, the claimant reported doing "fairly well" (Exhibit 5F/15). Although the
claimant subsequently reported benefit from counseling, on January 8, 2015, he
also reported losing his temper while at Wal-Mart (Exhibit 5F/9). As. a result,
Mark Basquill, Ph.D., assessed the claimant with a mild level of problem severity
and complexity (Exhibit 5F/9).
[T]he claimant continued to present for mental health group therapy with
symptoms primarily related to his PTSD (Exhibit 6F/21-81). In 2015, the
claimant's PTSD was described as stable (Exhibit 7F/42). However, Liza
Schaffner, a psychiatrist, advised that the claimant's symptoms should be
reassessed after the claimant reported worsening irritability due to PTSD (Exhibit
?F/33-36). Throughout 2015, Dr. Mark Basquill also continued to treat the
claimant for anger management and mindfulness on a recurring basis (Exhibit
7F/2-25).
On March 11, 2016, the claimant's PTSD was again described as stable with his
treatment (Exhibit 6F/56) .... On September 20, 2016, Dr. Basquill assessed the
claimant's PTSD as being a mild level of complexity and a mild level of severity
even after the claimant reported an incident where he "briefly unholstered a
weapon when under threat" from his wife's younger cousin (Exhibit 6F/29-30).
On November 28, 2016, Dr. Basquill noted that the claimant was making "good"
progress (Exhibit 6F/18).
(R. 21-22).
The ALJ also considered the December 23, 2014 op1mon of Henry Tonn,
Psychological Associate, and Michael Affeman, Ph.D., that Claimant would have difficulty
keeping a job due to a low frustration tolerance leading to problems interacting with others
because of his PTSD. (R. 24, 824-27). The ALJ assigned this opinion partial weight because it
was two years old. (R. 24).
The ALJ fully considered Claimant's PTSD, including Claimant's testimony, the medical
records from the VA, the VA disability rating, and the opinion evidence, and it is not the court's
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role to re-weigh evidence. Mastro, 270 F.3d at 176 (citing Craig, 76 F.3d at 589). Further, the
ALJ sufficiently explained his reasoning, concluding Claimant's PTSD symptoms had improved
with treatment and specifically citing Dr. Basquill's more recent assessments, while
acknowledging that Claimant's PTSD still impacted his functioning. (R. 22-23, 25). The ALJ
imposed restrictive conditions in the RFC to account for Claimant's PTSD, requiring unskilled
work in a low-stress environment, only occasional decision making or changes, no interaction
with the public, and only occasional interaction with coworkers or supervisors. (R. 19). Thus,
the ALJ's ·decision not to give substantial weight to the VA disability rating is supported by
substantial evidence.
See Comer v. Colvin, No. 1:16-CV-199, 2016 WL 7176602, at *4
(M.D.N.C. Dec. 8, 2016) (finding no error in the ALJ's evaluation of the VA disability rating,
where the ALJ's determination that the VA disability rating was inconsistent with the record was
supported elsewhere in the decision), adopted by No. 1:16-CV-199, Order [DE-14] (M.D.N.C.
Jan. 4, 2017). Having determined substantial evidence supports the ALJ's decision, any error in
failing to assign a specific weight to the VA decision is held to be harmless. See Colon v.
Berryhill, No. 4:17-CV-53-FL, 2018 WL 1833010, at *5 (E.D.N.C. Mar. 23, 2018) (finding an
error in evaluating a VA disability rating was harmless where, based on the medical evidence and
functional limitations imposed, it was inconceivable the ALJ would have reached a different
conclusion), adopted by 2018 WL 1832963 (E.D.N.C. Apr. 16, 2018).
VI. CONCLUSION
For the reasons stated above, Claimant's Motion for Judgment on the Pleadings [DE-18]
is DENIED, Defendant's Motio'ii for Judgment on the Pleadings [DE-22] is ALLOWED, and the
final decisiOn of the Commissioner is affirmed.
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SO ORDERED, this 30th day of July 2018.
t--~
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