BISHOP v. COLVIN
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD on 08/11/2015. IT IS RECOMMENDED that the Commissioner's decision finding no disability be vacated and that the matter be remanded for further administrative proceedings that properly address Plaintiff's VA disability rating in accordance with the Fourth Circuit's decision in Bird, 699 F.3d at 343. Defendant's Motion for Judgment on the Pleadings 12 should be DENIED and Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause 14 should be GRANTED, in part. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RHONDA L. BISHOP,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:14CV489
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rhonda L. Bishop, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”).
(Docket Entry 1.)
The
Court has before it the certified administrative record (cited
herein as “Tr. __”), as well as the parties’ cross-motions for
judgment (Docket Entries 12, 14). For the reasons that follow, the
Court
should
remand
this
matter
for
further
administrative
proceedings.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on February 3,
2011, alleging a disability onset date of June 1, 2009.
43.)
(Tr. 235-
Upon denial of those applications initially (Tr. 63-94, 125-
29) and on reconsideration (Tr. 95-124, 132-35, 136-40), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 144-45).
Plaintiff, her attorney, and a vocational
expert (“VE”) attended the hearing.
(Tr. 36-62.)
By decision
dated December 7, 2012, the ALJ determined that Plaintiff did not
qualify as disabled under the Act.
(Tr. 17-31.)
On April 16,
2014, the Appeals Council denied Plaintiff’s request for review
(Tr.
1-6),
making
the
ALJ’s
ruling
the
Commissioner’s
final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 1, 2009, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease, asthma, major depressive
disorder, and alcohol abuse.
. . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with the following
additional limitations: [Plaintiff] could frequently
climb, stoop, kneel, crouch, or crawl.
She could
constantly balance. [Plaintiff] could frequently reach,
handle, and finger with the left upper extremity and have
no restrictions on the non-dominant right upper
extremity.
She must avoid even moderate exposure to
dust, fumes, gases, odors, poor ventilation, and other
2
pulmonary irritants. She must avoid concentrated exposure
to humidity, extreme cold, and extreme heat. [Plaintiff]
would be able to understand, remember, and carry out
simple instructions, make judgments on simple work
related decisions, and respond to usual work situations
and to changes in a routine work setting. However, she
should have only brief, infrequent, and superficial
contact with the public and only occasional contact with
coworkers and supervisors. [Plaintiff] could maintain
attention and concentration for two-hour segments over an
eight-hour period and complete a normal workweek without
excessive
interruptions
from
psychologically
or
physically based symptoms.
. . . .
6.
[Plaintiff] has no past relevant work.
. . . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from June 1, 2009, through the
date of this decision.
(Tr. 22-30 (internal parenthetical citations omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
3
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks
omitted).
“Substantial
evidence
means
‘such
relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.”
Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (internal citations and quotation marks
omitted).
“If there is evidence to justify a refusal to direct a
verdict were the case before a jury, then there is substantial
evidence.”
Hunter, 993 F.2d at 34 (internal quotation marks
omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
4
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.’” Id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
1
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“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 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 [the claimant’s] past work or (5) any other work.”
Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) the ALJ “did not give [the 70% disability rating of the
Veterans Administration (“VA”)] substantial weight as mandated by
the [Fourth] Circuit but instead gave it little weight” (Docket
Entry 13 at 2-3);
(2) the ALJ failed “to elicit a reasonable explanation for the
conflict” between the testimony of the VE and the Dictionary of
Occupational Titles (“DOT”) in violation of Social Security Ruling
00-4p (id. at 6); and
(3) the ALJ did “not evaluate, weigh, or state the weight
given . . . [to] any of the [Global Assessment of Functioning
(“GAF”)] scores in the record” (id. at 8).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 15 at 4-14.)
VA Disability Rating
Plaintiff challenges the ALJ’s decision to afford “little
weight”
to
depression.”
732-39.)
Plaintiff’s
“VA
disability
rating
of
70%
for
(Docket Entry 13 at 3-5 (citing Tr. 29); see also Tr.
According to Plaintiff, the ALJ “ma[de] the conclusory
statements that [the VA rating] ‘[wa]s not supported by objective
evidence’ and ‘[wa]s inconsistent with the record as a whole’
without citing to any evidence of record for support.”
8
(Id. at 3
(citing Tr. 29).)
Plaintiff emphasizes that, after the hearing in
this case but before the ALJ issued his decision, the United States
Court
of
Appeals
for
the
Fourth
Circuit
decided
Bird
v.
Commissioner of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012),
which held that, “although VA disability ratings are not binding on
the ALJ, the ALJ must give the VA’s findings ‘substantial weight’
unless the record ‘clearly demonstrates’ that [such findings] are
entitled to less weight.”
F.3d at 343).)
(Docket Entry 13 at 3 (citing Bird, 699
Plaintiff asserts that, in direct contravention of
Bird, the ALJ failed to cite any specific evidence to support the
“little weight” he gave to the VA disability rating and merely
found the VA rating “not relevant in th[e] case.”
(citing Tr. 29).)
(Id. at 4-5
Plaintiff’s contentions on these points have
merit.
On April 18, 2012, the VA issued a 70% disability rating for
Plaintiff’s major depressive disorder based upon multiple symptoms,
including “[d]ifficulty in adapting to a worklike setting . . .
[and]
stressful
“[o]ccupational
circumstances,”
and
social
“[s]uicidal
impairment,”
ideation,”
“[d]ifficulty
in
establishing . . . work and social relationships,” “[d]isturbances
of motivation and mood,” “[c]hronic sleep impairment,” and “[m]ild
memory loss.”
(Tr. 732, 733, 737.)
In evaluating this rating the
ALJ stated as follows:
The undersigned has also read and considered the [VA
disability rating]. A conclusion by the VA regarding the
9
percentage or degree of disability is not based on the
same criteria that is used in determining disability
under the [] Act and is thereby not relevant in this
case. Furthermore, whether [Plaintiff] is ‘disabled’ is
a determination reserved to the Commissioner.
As a
result, little weight has been given to the rating
decision assessment. A 70 percent disability attribution
to depression is not supported by objective evidence and
is inconsistent with the record as a whole, which
documents [Plaintiff’s] adaptive capabilities during the
period in question as well as her improving mental health
following sexual reassign[]ment surgery.
(Tr. 29 (internal citations omitted and emphasis added).)
In Bird, the Fourth Circuit addressed for the first time the
“weight that the [Social Security Administration (“SSA”)] must
afford to a VA disability rating.”
court
observed
the
similarities
Bird, 699 F.3d at 343.
between
the
The
evaluation
of
disability by the VA and the SSA:
[B]oth the VA and Social Security programs serve the same
governmental purpose of providing benefits to persons
unable to work because of a serious disability. Both
programs evaluate a claimant’s ability to perform fulltime work in the national economy on a sustained and
continuing basis; both focus on analyzing a claimant’s
functional limitations; and both require claimants to
present extensive medical documentation in support of
their claims.
Id.
(internal
quotation
marks
and
citation
omitted).
After
reviewing the “varying degrees of evidentiary significance” other
circuits afford VA disability ratings, the Fourth Circuit held as
follows:
The VA rating decision reached in [the plaintiff’s] case
resulted from an evaluation of the same condition and the
same underlying evidence that was relevant to the
decision facing the SSA.
Like the VA, the SSA was
required to undertake a comprehensive evaluation of [the
10
plaintiff’s] medical condition. Because the purpose and
evaluation methodology of both programs are closely
related, a disability rating by one of the two agencies
is highly relevant to the disability determination of the
other agency. Thus, we hold that, in making a disability
determination, the SSA must give substantial weight to a
VA disability rating. However, because the SSA employs
its own standards for evaluating a claimant’s alleged
disability, and because the effective date of coverage
for a claimant’s disability under the two programs likely
will vary, 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.
Bird, 699 F.3d at 343 (emphasis added).
The ALJ’s consideration of Plaintiff’s VA disability rating
runs afoul of Bird in two significant respects.
First, the ALJ’s
statement that the VA’s disability rating “is not based on the same
criteria that is used in determining disability under the [] Act
and is thereby not relevant in this case” (Tr. 29 (emphasis added))
disregards Bird’s holding to the contrary that, “[b]ecause the
purpose and evaluation methodology of both programs are closely
related, a disability rating by one of the two agencies is highly
relevant to the disability determination of the other agency,”
Bird, 699 F.3d at 343 (emphasis added). The ALJ’s decision to find
Plaintiff’s VA rating “not relevant” constitutes a particularly
erroneous finding where, as in Bird, “[t]he VA rating decision
reached in [Plaintiff’s] case resulted from an evaluation of the
same condition and the same underlying evidence that was relevant
to the decision facing the SSA,” Bird, 699 F.3d at 343 (emphasis
added).
In
fact, Plaintiff’s treatment
11
records
from
the
VA
constitute virtually the only medical records covering the relevant
time period in this case.
(See generally Tr. 323-739.)
Second, the ALJ’s vague reference to Plaintiff’s “adaptive
capabilities
during
considerably
short
the
of
period
a
in
question”
identifying
(Tr.
sufficient
29)
falls
grounds
for
affording the VA rating less than substantial weight. Further, the
ALJ’s notation of Plaintiff’s “improving mental health” after her
surgery in June 2012 (id.) does not substantiate affording “little
weight” to the disability rating in connection with the period from
Plaintiff’s alleged onset date (June 1, 2009) to the date of her
surgery (June 28, 2012).
In sum, the ALJ reversibly erred by finding Plaintiff’s VA
disability
rating
“not
relevant”
(Tr.
29) and
by
failing
to
adequately explain how the record “clearly demonstrates” that said
rating merits less than “substantial weight,” Bird, 699 F.3d at
343.
“On remand, the [SSA] should directly address [the weight
attributable to] Plaintiff’s VA disability rating in light of the
Fourth Circuit’s decision in Bird, . . . and [should] clearly
identify the record evidence that supports any deviation from [the
substantial weight] standard.”
Wilson v. Colvin, No. 1:11CV256,
2014 WL 4274253, at *6 (M.D.N.C. Aug. 29, 2014) (Peake, M.J.)
12
(unpublished), rec. adopted, slip op. (M.D.N.C. Sept. 17, 2014)
(Osteen, Jr., J.) (unpublished).5
III.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings that properly address Plaintiff’s VA
disability rating in accordance with the Fourth Circuit’s decision
in Bird, 699 F.3d at 343.
As a result, Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 12) should be denied and
Plaintiff’s Motion for a Judgment Reversing or Modifying the
Decision of the Commissioner of Social Security, or Remanding the
Cause for a Rehearing (Docket Entry 14) should be granted in part
(i.e., to the extent it requests remand).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 11, 2015
5
Because reassessment of Plaintiff’s VA disability rating may well impact the
RFC determination, the Court should decline to address Plaintiff’s remaining two
assignments of error involving a potential conflict between the VE’s testimony
and the DOT and evaluation of GAF scores (see Docket Entry 13 at 6-10).
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?