POWERS v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/14/2015; this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter b e REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for further administrative action as set out above. To this extent, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 8 ) should be GRANTED and Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICÉIAEL
Sø. PONTERS,
Plaintiff,
v
CAROLYN \V. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
t:14CY272
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michael W. Powets, brought this action pursuant to Section 205(9) of the
Social Security
Act (the "Act'),
as amended (42 U.S.C. $$
a05G), to obtain review of a ftnal
decision of the Commissioner of Social Security denying his claims for a Petiod of Disability
("POD') and Disability Insurance Benefits ("DIB") under Title II of the Act. The Cout
has before
it the cenifìed administtative tecotd and cross-motions fot judgment.
I. PROCEDURAL HISTORY
Plaintiff filed an application for a POD and DIB on October 20,201.0 alleg¡ng
disability onset date of Septembet 1,5,2002.
Çr.
1,1, 11,8-21.)1
a
The application was denied
initially and upon teconsideration. Qd. at 51-34.) Plaintiff requested a heanng befote an
Âdministrative Law Judge ("ALJ'). (d. at 85.) Ptesent at the August 6,
201.2 heating wete
Plaintiff and his attorney. Qd. at21,-50.) A vocational expett also testified telephonically.
1
Transcrþt citations refer to the administrative tecotd. (Docket Entry 6.)
(Id.) Ât the headng, Plaintiff amended his alleged onset date of disabiJity from September
"1.5,2002,
to January 26,2006. (Id. at 11,24.) The ÂIJ determined in his Septembet 28,
201.2 decision that Plaintiff was not disabled under the
201,4
Âct. (Id. at1,1,-21,.) OnJantary
28,
the Appeals Council denied Plaintifls request fot review, making the AIJ's
determination the Commissioner's final decision for review. (Id. at
1,-6.)
II. FACTUAL BACKGROUND
Plaintiff was foty-six yeats old on the alleged disability onset date, was able to
communicate in English, and had past televant work as a ttuck ddver and coach cleaner. (Id.
at
1.7
,24,21,-49.)
III. STANDARD FOR REVIEW
The Commissionet held that Plaintiff was not under a disability within the meaning
of the Act. Under 42U.S.C. $ a05(g), the scope of judicial review of the Commissioner's
final decision is speciûc and narrow. Smith u. Schweiker,795 F.2d 343,345 (4th Cir. 1986)
This Court's teview of that decision is limited to determining whether thete is substantial
evidence in the tecotd to support the Commissioner's decision. 42U.5-C- $ a05(g); Hønter
Sulliuan,993 tr.2d
3"1.,
Substantial evidence
adequate
u.
34 (4th Cir. 1,992); Hals u. Salliuan,907 F.2d 1453, 1456 (4th Ctu. 1990)
is "such
televant evidence as â reâsonable mind might accept
to support a conclusion." Hanter, 993 tr.2d at 34 (citing Nchard¡on
U.S. 389, 401 (1,971)).
as
u. Perales, 402
It "consists of mote than a mere scintilla" "but may be somewhat
less
thana ptepondet^nce." Id. (qtolJLngL^aws u. Celebre77e,368tr.2d640,642 (4th Cir. 1966))
The Commissionet must make findings of fact and tesolve conflicts in the evidence.
Ha1s,907 F.2d
^t
1.456 (citing King u. Califuno, 599
2
F.2d 597, 599 (4th Cir. 1,979)). The Coutt
does not conduct a de novo review
795 tr.2d
Schweiker,
undettake
to
^t
of the evidence nor of the Commissionet's
345. In reviewing for
re-weigh conflicting evidence,
fìndings.
substantial evidence, the Court does not
to make ctedibility detetminations, or
to
substitute its judgment for that of the Commissionet. Craigu. Chater,76tr.3d 585, 589 (4th
Clr. 1,996) (citing Hqq907 F.2d
^t
1,456). "'Where conflicting evidence allows teasonable
minds to differ as to whethet a claimant is disabled, the tesponsibility for that decision falls
on the fCommissioner] (or the fCommissioner's] designate, the ALJ)." Cmig 16 tr.3d
589
^t
(quoting lWalker
teversed only
F.2d 635,640 (7th Cir. 1987)). The denial of benefits will be
u. Bowen,834
if no reasonable mind
detetmination.
See
could accept the tecotd as adequate to suppott the
Ncltardson, 402 U.S. at
401. The issue befote the Coutt is not whethet
Plaintiff is disabled, but whether the Commissionet's fìnding that Plaintiff is not disabled is
supported by substantial evidence and was teached based upon
televant law.
See
id.; Cofnan
u.
^
conect application of the
Bowen,829 tr.2d 51.4, 517 (4th Cir. 1,987).
rv. THE ALJ'S DISCUSSION
The Social Secudty Regulations define "disability" for the purpose of obtaining
disability benefìts under the
reason
of
r\ct
as the "inability
any medically determinable physical
to do any substantial gainful activity by
ot mental impairment2 which can be expected
to tesult in death or which has lasted ot can be expected to last fot a continuous pedod of
not less than
1,2
months." 20 C.tr.R. S 404.1505(a);
see also
42 U.S.C. $$ az(d)(1)(a),
1382c(a)(3)(Â). To meet this de{inition, a clatnant must have a sevete impairment which
' A "physical or mental impairment" is an impairment
resulting ftom "anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques." 42 U.S.C. SS 423(dX3).
J
makes
it
impossible to do ptevious work or substanial gainfil activity3 that exists
national economy. 20 C.F.R.
S
A.
404.1505(a);
see
also 42
U.S.C.
S
The Five-Step Sequential Analysis
disabled, which is set forth in 20 C.F.R.
SS
4 tr.3d 473, 47 5 n.2 (4th Cn. 1,999). The
(1)
'V7hethet
404.1520.
See
Albright
if
If
the claimant is
u. Comm'r of Soe Sec.
Admin.,
,{IJ must determine in sequence:
the claimant is engaged in substtntal gainful activity
claimant is working).
Q)
the
423(dX2XÐ.
The Commissioner follows a five-step sequential analysis to ascettain
17
in
(2.e.,
whether the
so, the claimant is not disabled and the inquiry ends.
l7hether the claimant has a severe impairment.
If not, then the claimant is not
disabled and the inquiry ends.
(3)
Whethet the impairment meets or equals to medical cdtetia of 20 C.F.R., Pat
404, Subpart P, Âppendix 1, which sets forth a list of impairments that warraLnt
a
finding of disabiJity without considedng vocational cÅteria.
zi disabled and the
(4)
'Whethet
If
so, the claimant
inquiry is halted.
the impairment prevents the claimant from perfotming past televant
work. If not, the claimant is not disabled and the inquiry is halted.
(5)
'Whethet
the claimant is able to perform any othet work considedng both his
residual functional capacitya and his vocational abilities.
If
so, the claimant is
not disabled.
3
"substantial gainful acivi:y" is work that (1) involves performing sigqifrcant ot ptoductive physical
or mental duties, and Q) is done (or intended) forpay or profit. 20 C.F.R. SS 404.1510.
a
"Residual functional capaciq" is the most a claimant can do in a work setting despite the physical
and mental limitations of his impairment and any telated symptom (e.9., pan). See 20 C.F.R. SS
4
20 c.F.R.
SS
404.1s20.
Here, the .,\LJ
frst determined that Plaintiff
activity since his amended alleged onset date
of
(It.
13
insuted ("DLI") of Decembet 31, 2006.
had not engaged
in
substantial gainful
January 26, 2006, through his date last
)
The
,{IJ next found in step two that
Plaintiff had the following severe impairments: history of frostbite of the hands and feet,
and status post open teduction internal fìxation
of the left
ankle, subsequent additional
irþation and debridgemerrt for infection, and removal of hardwate. (Id.) At step thtee, the
,{LJ found that Plaintiff did not have an impaitment or combination of impairments listed
in, ot medically equal to, one listed in Âppendix
1.
(Id. at 1,3-1,4.)
,{t the foutth
step of the
sequence, the ALJ detetmined that Plaintiff was not disabled fromJantary 26,2006, thtough
Decembet 31,2006, because he could perform his pastrelevantwotk as a truck ddver and
coach cleanet. (d. at
1,7
.)
B. Residual Functional Capacity Determination
Ptiot to step four, the ALJ determined Plaintiffls RFC based on his evaluation of the
evidence. Qd. at 14-1,7.) The ALJ determined that Plaintiff retained the RFC to petform
a
wide range of medium work. Qd. at 14.) Specifìcally, the ALJ concluded that Plaintiff could
lift and c try maximum of fifty pounds at a ttrrre occasionally and could frequently lift
^
and
carly twenty-five pounds, could stand or walk for at least six houts in an eight hout wotkday,
could sit fot at least six hours in an eight hout wotk day, could push and pull with upper and
lowet extremities, could petform activities requiting bllateral mantal dexterity fot both gross
404.1,545(a)(1),416.945(^)(t); see also Hines y Barnhart,453 F.3d 559,562 (4th Cir. 2006). The RFC
includes both a "physical exertional or strength limitation" that assesses the claimant's "abiJity to do
sedentary, light, medium, healry, or very heatry work," as well as "rìonexertional limitations (mental,
sensory or skin impairments)." Ha// u. Harris, 658 F.2d 260,265 (4th Cir. 1981).
5
and fìne manipulation with teaching and handling. (Id.) Additionally, the ALJ concluded
that Plaintiff should avoid concentrâted exposure to extreme cold, and could climb ramps
and stairs, and balance occasionally with no additional postutal limitations. (Id.) Last, the
ALJ concluded that since Plaintiff had no mental limitations, he retained the mental capacity
to perform semi-skilled work activity. (Id. at 1.4.)
C. Past Relevant Work
The ALJ found in step four that Plaintiff could perform his past relevant work as a
truck ddver and coach cleanet as it was actually and generally petfotmed. (Id.
^t
1,7
.)
V. ANALYSIS
In peninentp^rt,Plaintiff contends that the ALJ ered by failing to considet disability
tankings ftom the Department of Veterans Affaits. pocket E.ttty 9 at 4-5.) Plaintiff asserts
that this failure violates SSR Ruling 06-03p, which required the
detetminations
of other government
ÂIJ to considet the disability
agencies, and the Fourth Circuit's decision
in Bird u.
Commissioner,699F3d337 (4th Cir. 201,2), which requites the ALJ to give weight to such
detetminations.
Qd.)
In futthet support, Plaintiff
states:
Though the VA decision on file was tendered in 201,1,
(Ir 200), it is relevant to the time period before December 31,
2006 t¡ecause the percentages telating to Mr. Powets' frostbite
injuties (which he sustained while serving in Germany in 1981)
wete assigned many years befote the date last insured ("DLI").
Qr 295;458). His medical recotds teflect treatment for these
conditions from 2002 (his original alleged onset year) up until
the latest records on file. As testified to at his headng, Mr.
Powets has suffeted from periphetal neuropathy in his hands
and feet fot many yeats fot which he has teceived treatment at
the VA Hospital. His records confìrm treatment with
medications (Gabapentin and Vicodin) fot numbness, tingling,
6
pain and other manifestations of cold injury and tesultant
pedphetal neuropathy from 2002 throteh his DLI and beyond.
(See e.g. Tr 295; 330-314349-53;458). ,,\ February 23, 2006 VA
tecord also references the fact that he akeady had service
connected disability of 30o/o for each of his hands and feet for a
total disability tating of 80o/o. Qr 392-93). As the 2011 decision
rì.otes, these disability tatings had abeady been in place fot years
and constituted the largest percentages he could receive fot cold
injuries absent amputation. (Ir 205). They wete assigned due to
his difficulty with daily living activities, difficulty
with
ambulation and inability to drive due to natcotic medication
management. (Tt 202-03). Therefote, the ALJ's failure to
considet these VA disability tatings and the decision explaining
these ratings constitutes serious error tequiring temand
pursuant to Bird and Soc. Sec. Ruling 06-03p fot ptopet
consideration.
(Docket Entty 9 at 5.) Consequendy, evaluating the strength of PlaintifPs argument requires
an undetstanding of Bird u. Commis¡ioner, 699 tr.3d 337 ,343 (4th Cn. 201,2) and SSR 06-03p.
l¡. Bird v. Commissionet
In Bird, the Fourth Circuit considered two issues.s F'irst, it addressed when an ALJ
must give retrospective consideration to medical evidence generated aftet the
DLI. Âs in
this case, the claimant in Bird argued that the ALJ ered in failing to consider retrospectively
evidence in the fotm of a VA rating decision cteated aftet the
DLI. Bird, 699 tr.3d at 338-39,
340. The Fourth Cfucuit held that the ALJ was tequired to give tetrospective considetation to
the VA's determination, even though
it post-dated the claimant's DLI, because the evidence
placed the claimant's "symptoms in the context
of his wotk and social histories, drawing
link be¡ween his cuffent condition and his condition predating his
DLI."
a
Id. at 342. The
Fourth Circuit explained that "fm]edical evaluations made after a claimant's insured
status
t The Fonrth Circuit issued Bird after the ALJ rendered his Decision in this matter. Nevertheless,
Bird does not declate new principles of Social Secutity law so much as apply those ptinciples already
existing.
7
has expired are fl.ot automattcally barred from consideration and may be televant to prove a
disability arising before the claimant's
generally is admissible
DLI." Id. at 340. "fP]ost-DLI
in an SSÂ disability determination in
medical evidence
such instances
in which that
evidence petmits an infetence of linkage with the claimant's pte-DLI condition." Id. at 34'1.
"fR]etrospective consideration
of
is
evidence
persuasive as to rule out any linkage
appropriate when the tecotd
is not
so
of the final condition of the claimant with his eatlier
symptoms." Id. (internal quotation marks omitted).
Second,
in Bird, the Fouth Circuit addressed "the precise weight that the SSA must
afford to a VA disability rating." Id. at343. In addtessing this question, the Fourth Circuit
noted that, "the VÂ and Social Security programs serve the same governmental pu¡pose
of
providing benefits to persons unable to work because of a serious disabiJity." Id.
It
reasoned
futher that "þ]oth ptograms evaluate a
clairnant's abiüty
^t343.
to perfotm full-time
work in the natúonal economy on a sustained and continuing basis; both focus on analyztnga
claimant's functional limitations; and both require claimants to present extensive medical
documentation in support of theit claims." Id. (quotations omitted).
From this the Foutth Citcuit concluded that "þ]ecause the purpose and evaluation
methodology
of both programs
agencies is highly relevant
making
are closely telated, a disability tating by one
to the disability detetmination of the other agency." Id. Thus, "in
a disability determination, the SSA
substantial weight
of the two
to a VA disability
rz;:ung."
[Social Security Administration] must give
Id.
"However, because the SSA employs its
own standards for evaluating a clatmant's alleged disability, and because the effective date of
coverage for a claknant's disability under the ¡wo programs likely will vary, an ALJ may give
8
less weight
to à VA disability rating when the record before the ALJ cleady demonstrates
that such a deviation is appropdate."
the
AIJ
erred in finding Bird's
Id. Consequently,
the Fourth Circuit held in Bird that
VA disability nlngirrelevant based solely on the fact that the
VÂ decision became effective aftet Bird's DLI. See id.
^t
346 ("[B]ecause the
AIJ
made two
errots of law in conducting his analysis of the evidence concetning the issue whether Bird
was disabled befote his DLI, we vacate the district court's judgment and remand the case to
the distict court for further temand to the ALJ fot ptoceedings consistent with
the
ptinciples of law expressed in this opinion.").
B.
.9SA 06-03p
The Social Security Rulings also speak to whether and when an ALJ is obligated to
consider disability detetminations from other agencies. Accotding to SSR 06-03p:
Our
tegulations
make cleat that the fìnal tesponsibility for
deciding certatn issues, such as whethet you are disabled, is reserved
to the Commissioner . . . . However, we are tequired to evaluate all
the evidence in the case tecord that may have a bearing ori our
detetmination or decision of disability, including decisions by other
Therefore,
governmental and nongovernmental agencies
evidence of a disability decision by anothet governmental or
nongovernmental agency cannot
be ignored and must
be
considered.
SSR 06-03p, Considering Opiaions and Other Euidence From Soarce¡ l{4to
Are Not 'Acceþtable
Medical Slxlrces" in Disability Clairn:; Considering Dedsions on Disabitlþ bjt Other Couernmental and
Nongouernmental Agencies,2006
20 c.F'.R.
S
WL 2329939,
20 C.F.R. S 404.1512þX5);
^tx6 Q006);
see also
404.1504.
C. The ALJ's Failure to Address the VA Determinations Was Ertot, the Error
Was Not Harmless, and Remand Is Propet.
Flere, the record contains two
VA disability detetminations generated aftet Plaintiffs
9
DLI, neither of which the ALJ considered in concluding that Plaintiff
Defendant's Bdef, Docket E.rt y 13 at
J
annry
201,1,
V A determinations
[.]
I ("ff]h. AIJ
was not disabled.
(See
did not considet the July 2008 ot the
").
The 2008 VA Determínation
The first document to consider is a July 30,2008 V-,\ Rating Decision. Qr. 537-40.)
It
only considered Plaintiffs cold-telated injuries, because those wete his only service
connected conditions. (Id.) The 2008 V,{. Rating Decision concludes that Plaintiff still has
considerable limitations stemming
from his cold-related injudes. Specifically, the V,{
concluded that "the following service connected conditions haven't changed" "Left foot
Left hand cold injury
Right foot cold injury
cold injury
-
cold injury
- 30o/o." (Id. at 536.) The V-4. goes on to conclude that:
30o/o;
Entitlement
to
-
30o/o,
individual
-
30o/o,
unemployability cannot be
established at this time.
The medical evidence of tecotd does not objectively show
that your sewice connected conditions make you unable to secure
or follow substantially gainful employment. Although the
symptoms of yout cold injury would interfere with physical
employment, the evidence does not objectively show that the cold
iniuries ate so severe as to preclude such employment. In
addition, the recotds do not show that you would be unable to
secure or follow sedentary employment. Futther, there are
inconsistencies in the infotmation you have provided in tegard to
employment (you indicated to us that you last worked in 2004 and
that you became too disabled to work in July of that yeat, however
in a repott from VA OPC Winston-Salem dated JuIy 27 ,2007 , you
teported that you last worked 1.5 yeats prior to that date as a truck
dtiver - approximately February of 2006 - and that employment
was terminated because you lost your license as the company you
worked for did not pay a parking ticket fot you).
In the treatment reports, the bulk of the curtent treatment
teceived is for conditions for which you are not service connected.
10
Right hand
The evidence does not show that yout cold weather injuries are of
such severity to pteclude employment, nor is thete evidence that
significant treatment is teceived fot these conditions. Since the
above is the case, you have not been found to be unable to secure
ot follow substantially gainful employment as a tesult of yout
sewice connected conditions at this time.
(Id. at 540.)
The 2011 VA De termínation
The second document to considet is a January 26,201,L, V,\ Rating Decision. (Id. at
199-208.) The
201.1,
VÂ determination
'1,5,201.0. (Id. at 201.) Specifically, the
declares Plaintiff to be unemployable as
of Octobet
VA concluded that Plaintiff still had a 30o/o limita:.!.on
in all of his extremities from cold injudes; but now also exhibited a 50o/o limitation tesulting
from an adjustment disorder and mixed anxiety and depressed mood, effective October
201,0; and a 10o/o ßmitation stemming from degenerative disc disease
of the lumbat
15,
spine
with residualpain and limitation of motion, also effective Octobet 1,5,201,0. (Id.)
D. Discussion
Plaintiff faults the ,ALJ for failing to address or considet the VA Rating Decisions
described above. (Docket Entty 9 at 4-5; Docket Entry 1,4 at
3.)
concedes that the ALJ did not address or consider the 2008 and 201.1,
but argues that any temand would be futile. @ocket E.rtty
considet the July 2008
ot
1.3
Defendant,
in turn,
YA Rating Decisions,
at 7 ("the AIJ did not
the Jantary 2011 determinations'), 16-1.8.) This is
because,
according to Defendant,if the ALJ wete to considet the 2008 and201.1, VA determinations,
they would not alter his decision in any meaningfulway. (Id.)
Fot the following reasons, the undersþed concludes that Plaintiff has the better
position hete and that
a
remand is proper. First, the 2008 and 201,1VA Rating Decisions are
lt
relevant to the time pedod before December 31, 2006, the critical time pedod hete. As
Plaintiff corectly points ouq this is because the petcentages telating to Plaintiffs ftostbite
injuries-which were sustained while he was serving in Getmany in 1981-were
years before the
A*y
DLL
(See, e.g.,
Tr.
1,99-207
, 284, 295, 458, 535-40,537 ('You served in the
from Septembet 25, 1978 to February 23, 1,981").) These disability tatings were in
place fot yeats-including through and beyond Plaintiffs
DLI-and constituted
peîcentages he could receive for cold injuties absent amputation. (See, e.g., id.
93.)
Consequently, under Bird and SSR 06-03p, the ALJ was obligated
weigh these VA disability determinations, which he did not
legal
assigned
the latgest
^t205-06,392-
to consider and
do. The ALJ's failue
here was
erot.
Second, Defendant's argument that the 2008 V.,q. determination "negates
infetence of linkage" between the
201,1,
^îy
V,{. determination and Plaintiffls pre-DLI condition,
and therefore relieves the ALJ of his obligation to consider the
201.1.
VA determination,
is
unpersuasive. (Docket E.,try 13 at 17.) This is because: (1) Defendant's approach tequires
this Court to consider, evaluate, reconcile, and weigh both VA detetminations in the fìrst
instance, which is the purview
of the
1,J-J,
Q) Defendant's apptoach begs the question of
whether the 2008 VÂ determination itself is also rnaterially linked to the time period befote
December 3"1, 2006, (3) while the 2008 V,{. determination does
unemployable,
it does suggest
not declate Plaintiff
a restriction to sedentary work for his cold injuries alone,
which is mote restrictive than the medium RF'C the
A{
set
in this
case, and (4) as a result,
the recotd is not so persuasive as to rule out any linkage between the VA determinations and
PlaintifPs pre-DLI condition. Thetefote, Defendant's argument that this Court should find
t2
that the 2008 VA detetmination negates any linkage between Plaintiffs pte-DLI condition
and the
201,1,
VA determination is not well taken.
See
Craig 7 6 F.3d at 589 (coutt must "not
undertake to re-weigh conflicting evidence, make ctedibiJity determinations, or substitute our
judgment for that of the Sectetary").
Third, Defendant would have the Court adopt its extensive harmless enot
and conclude that
as a general
^îy
remaLnd here
would be futile. (Docket Etrtty
1.3
analysis
at 17-'1.8.) However,
proposition, "a court may not guess at what an agency meant to say, but must
instead testrict itself to what the agency act:ually did say." Nken u. Holder,585 F.3d 81.8, 822
explained, the AIJ's failure to considet and weigh the 2008 and 201.1 VA
(4th Cit. 2009).
-,{.s
determinations
is a
setious procedural etrot. See Bird, 699 F.3d
^t
343 ("[U]nder the
ptinciples governing SSA disability determinations, another agency's disability determination
cannot be ignoted and must be considered."); Batchelor u. Coluin, No. 5:11-CV-533-trL.,2013
WL
1810599, x3 @,.D.N.C.
April 29, 201,3) ('A ptocedutal error is not made
harmless
simply because the aggrieved paty appeats to have had little chance of success on the medts
aÍryway. Explicit consideration of relevant evidence is impotantas a teviewing court cannot
determine
if
findings are unsupported by substantial evidence unless the Secretary explicitly
indicates the weight given to all of the relevant evidence") (citations omitted); Sags
u.
Astrue,
No. 4:1'1,-CY-1,28-FL, 2013 WL 466406, * 3-4 (E,.D.N.C. February 7, 201,3) (concluding
that "while the government asks the court to evaluate the VA disability determination itself
to
decide whether
determination,
it
would,
ot would not, have any bearing on plaintiffs
it is not the province of this court to teweigh
evidence that the
disability
A{
must
itself consider in the fì-tst place"). The ALJ's failute to discuss and explicitly assign weight to
l3
the 2008 and
201,1,
disability detetmination tequires temand. Bird, 699 F.3d at 343, n.1. ("The
Commissioner cofltends that the evidence undetþing the V-A rating decision shows that
Bird's condition detedorated after his
DLI.
Because
we conclude that the ALJ
committed legal ertor by failing to consider propedy all the recotd evidence, an assessment
of the weight of the evidence must be left to the ALJ on temand in the ltst
Batchelor, 201,3
WL 1810599, x 3; Sugq
201.3
WL 466406, *
instance.");
3-4.6
Fouth, even considering Defendant's proposed remand analysis on its own terms, it
is not inconceivable that a different administrative conclusion could be reached on temand.
See, e.g.,
Aastin u. Astrue, No. 7:06-CY-00622, 2007 WL 3070601, x6 (.!í.D.Va. Oct.18,
2007)) Qrolding that
"[e]rors are harmless in Social Secutity cases when it is inconceivable
that a different administrative conclusion would have been reached absent the errod') (citing
Camp
u.
Massanari,22tred.
App'*
311 (4thCn.2001)). As noted, the 2008
found Plaintiff capable of sedentary
work. In
VA determination
contrast, the ALJ's detetmination found
Plaintiff capable of medium work. The -AIJ futher found that Plaintiff could pedotm his
previous work as a truck ddver a¡d a coach cleaner. The vocational expett chancteitzed
these jobs as, and the ALJ found them to be, medium work and not sedentary
17.)
Itis ptopet to provide
work. (Ir.
at
the ALJ an opportunity to address issues such as this on temand.
u
Thir is not to suggest thzLt fuhrte determination by the ALJ that Plaintiff was not disabled is
^
necessarily unsustainable in light of the 2008 and 2071, YA determinations. In Bird, the Fouth
Circuit specifically identified the fact that "the SSA employs its own standards for evaluating a
claimant's alleged disability" as one ground which may justiS' deviation from substantial weight and
noted further rJrrat a deviation is proper "wherì. the recotd before the ALJ cleatþ demonstrates" it.
Bird, 699 F.3d at 343. The ALJ may conclude on the evidence presented in Plaintiffs case that those
different standards are material to Plaintiffs claim for disability and rightly justify depating from the
substantial weight presumption, or the ALJ may considet the entjre recotd and conclude that a
deviation is warranted. Here, however, the ALJ apparently failed to consider the entite record in the
first instance, and as a result, remand is the appropriate temedy.
l4
In
sum, the fact that the
VÂ disability determinations in this case fell outside
the
claimed disability date range is not enough, in itself, to disctedit the determinations. The ALJ
did not discuss the VÂ disability determinations in this case in any respect, and
impossible
it
is
fot the court to detetmine why the ALJ did not do so. While the Defendant
argues that the Coutt need not temand because the failute
to discuss ot consider the VA
detetminations is harmless error, the coutt disagrees that the enot is hatmless in this case.
Âlthough Plaintiff raises additional issues in his brief, the Coutt declines their considetation
at this irme. Hancocþ. u. Barnhart, 206
F
. Srrpp. 2d
7 57
,7 63-7 64 CX/.D. Ya. 2002) (on temand,
the ALJ's ptiot decision has no pteclusive effect, as it is vacated and the new headng is
conducted de novo).
VI. CONCLUSION
Aftet a carefil consideration of the evidence of tecord, the Coutt finds that
the
Commissioner's decision is not supported by substantial evidence. Accordingly, this Court
RECOMMENDS that the Commissioner's decision finding no disability be REVERSED,
and the mattet be
REMANDED to the Commissionet undet
senterìce four
of 42 U.S.C.
S
405@. The Commissioner should be directed to remand the matter to the,{LJ fot futhet
administtative action as set out above. To this extent, Plaintiffs Motion fot Judgment on
the Pleadings @ocket Entry 8) should be GRANTED and Defendant's Motion for
Judgment on the Pleadings @ocket E.rtty 1.2)be
DENIED.
ter
nited States Magistrate Judge
January
201,4
l5
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