HILDRETH v. COLVIN
Filing
12
MEMORANDUM OPINION AND ORDER as to EVA NELL HILDRETH signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 9/22/2015. that the Commissioner's decision finding no disability is REVERSED and that the matter is REMANDED under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings that properly address Plaintiff's VA disability ratings in accordance with the Fourth Circuit's decision in Bird. As a result, Defendants Motion for Judgment on the Pleadings (Doc. 10 ) is DENIED, and that Plaintiff's Motion for Judgment on the Pleadings (Doc. 8 ) is GRANTED. A judgment consistent with this Memorandum Opinion andOrder will be entered contemporaneously herewith. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EVA NELL HILDRETH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:14CV660
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff, Eva Nell Hildreth, 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”).
(Doc. 2.)
This court has before it the
certified administrative record (cited herein as “Tr. at __”),
as well as the parties’ cross-motions for judgment (Docs. 8,
10).
For the reasons that follow, this court will remand this
matter for further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on January 13, 2012,
alleging a disability onset date of August 30, 2010.
155-56.)
(Tr. at
Upon initial denial of that application (Tr. at 43-51,
91-99) and on reconsideration (Tr. at 52-66, 101-08), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. at 109).
Plaintiff, her attorney, and a vocational
expert (“VE”) attended the hearing.
(Tr. at 23-42.)
By
decision dated February 5, 2014, the ALJ determined that
Plaintiff did not qualify as disabled under the Act.
67-83.)
(Tr. at
On June 3, 2014, the Appeals Council denied Plaintiff’s
request for review (Tr. at 5-9), 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] last met the insured status
requirements of the [] Act on December 31, 2010.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her alleged onset date
of August 30, 2010 through her date last insured of
December 31, 2010.
3.
Through the date last insured, [Plaintiff] had
the following severe impairments: degenerative disc
disease . . . of the neck and low back, and a history
of alcohol and drug abuse . . . .
. . . .
4.
Through the date last insured, [Plaintiff] did
not have an impairment or combination of impairments
that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.
. . . .
5.
. . . [T]hrough the date last insured,
[Plaintiff] has the residual functional capacity to
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perform light work . . . except frequent not constant
use of the hands and arms.
. . . .
6.
Through the date last insured, [Plaintiff] was
capable of performing her past relevant work as a
secretary and research secretary. This work did not
require the performance of work-related activities
precluded by [Plaintiff’s] residual functional
capacity.
. . . .
7.
[Plaintiff] was not under a disability, as
defined in the [] Act, at any time from August 30,
2010, the alleged onset date, through December 31,
2010, the date last insured.
(Tr. at 72-78 (internal parenthetical citations omitted).)
II.
STANDARD OF REVIEW
In cases such as this one, where the matter was previously
adjudicated by an ALJ, review of the ALJ’s ruling is limited to
the following two issues: (1) whether substantial evidence
supports the ALJ’s decision; and (2) whether the ALJ applied the
correct legal standards.
See 42 U.S.C. § 405(g); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
The question is
not whether Plaintiff is disabled, but whether or not the ALJ’s
finding that Plaintiff is not disabled is supported by
substantial evidence and based upon a correct application of the
relevant law.
See Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
a reasonable mind might accept as adequate the evidence in
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If
support of the ALJ’s decision, the court should not reweigh the
evidence or substitute its judgment for that of the ALJ.
Hays,
907 F.2d at 1456.
III. DISCUSSION
Plaintiff contends that this court should overturn the
ALJ’s finding of no disability on several grounds:
(1) “[T]he ALJ err[ed] by failing to include any mental
limitations” in the residual functional capacity or in the
hypothetical question to the VE. (Pl.’s Br. in Supp. of Mot. for
J. on the Pleadings (“Pl.’s Mem.”) (Doc. 9) at 2.)
(2) “The ALJ erred as a matter of law by” finding
Plaintiff’s post-traumatic stress disorder, major depressive
disorder, and borderline personality disorder “non-severe
impairments at step two.” (Id. at 6.)
(3) “The ALJ erred as a matter of law by failing to give
substantial weight to the VA’s 100% disability rating.” (Id. at
8.)
(4) “The ALJ failed to conduct a proper . . . analysis” of
Plaintiff’s credibility under the Craig decision. (Id. at 9,
12.)
Defendant contends otherwise and seeks affirmance of the
ALJ’s decision.
(Def.’s Mem. in Supp. of Mot. for J. on the
Pleadings (“Def.’s Mem.”) (Doc. 11) at 5-15.)
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A.
VA Disability Rating
Via Plaintiff’s third assignment of error, she challenges
the ALJ’s conclusion that “she was not bound by” Plaintiff’s VA
disability rating of 100% for post-traumatic stress disorder
(“PTSD”).
(Pl.’s Memo. (Doc. 9) at 8 (citing Tr. at 77); see
also Tr. at 169-75 (VA disability ratings dated April 28, 2006,
and September 20, 2008).)
According to Plaintiff, the ALJ’s
rationale, that “‘the basis for a VA disability rating is
actually injury rather than the limitations in the activities of
work which are the focus of an evaluation under the . . . Act,’”
(id. (citing Tr. at 77)), contradicted the Fourth Circuit’s
decision in Bird v. Commissioner of Social Security
Administration, 699 F.3d 337 (4th Cir. 2012), in two respects.
First, Plaintiff notes Bird’s holding that “‘a VA disability
determination must be accorded substantial weight in Social
Security disability proceedings,’” (Pl.’s Mem. (Doc. 9) at 8
(citing Bird, 699 F.3d at 345)), and argues that, pursuant to
Bird, ALJs may deviate from the substantial weight standard only
“if the particular facts of the case warrant.” (Id.)
Plaintiff
asserts that the ALJ here failed to cite any specific evidence
to justify her departure from the Bird standard.
Tr. at 77).)
(Id. (citing
Second, Plaintiff maintains that the ALJ’s
reliance on “alleged general differences between a Social
Security disability determination and a VA disability
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determination” runs counter “to Bird, which recognized the
substantial similarity between Social Security cases and VA
cases.”
(Id. at 8-9 (citing Bird, 699 F.3d at 343 (“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.”).)
This court finds that Plaintiff’s contentions on
these points have merit.
On April 28, 2006, the VA issued a 100% disability rating
for Plaintiff’s PTSD, effective January 11, 2006, based upon
multiple reported symptoms, including two suicide attempts in
2004 and 2005 with daily suicidal ideation, excessive sleep,
“bad thoughts,” nightmares, and a dysphoric mood.
(Tr. at 171.)
The VA concluded that Plaintiff suffered “moderate to severe
occupational impairment with total social impairment due to
[her] service connected PTSD.”
(Id.)
The VA noted that, due to
a “likelihood of improvement” in Plaintiff’s condition, its
disability rating was not permanent but “subject to a future
review examination.”
(Id.)
Thereafter, on September 20, 2008,
the VA reevaluated Plaintiff’s PTSD and concluded as follows:
We have continued your current 100 percent evaluation
due to evidence of total occupational and social
impairment, due to your symptoms: gross impairment in
thought processes or communication; grossly
inappropriate behavior; persistent danger of hurting
self or others. The contract examiner has indicated
that your symptoms have not improved and this
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condition continues to cause a total occupation[al]
and social impairment. Your condition is considered
to be static in nature and the requirement for review
examination has been removed.
(Tr. at 174.)
The ALJ’s analysis of these disability ratings
consists of the following statement: “The undersigned notes the
100% rating by the VA; however, this agency is not bound by this
ruling as the basis for a VA disability rating is actually
injury rather than the limitations in the activities of work
which are the focus of an evaluation under the . . . Act.”
(Tr.
at 77.)
In Bird, the Fourth Circuit addressed for the “weight that
the SSA [Social Security Administration] must afford to a VA
disability rating.”
Bird, 699 F.3d at 343.
The court observed
the similarities between 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 full-time 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 quotations and citations omitted).
After
reviewing the “varying degrees of evidentiary significance”
other circuits afford VA disability ratings, the Fourth Circuit
held as follows:
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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 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.
Id. (emphasis added).
The ALJ’s assessment of Plaintiff’s VA disability ratings
runs afoul of Bird in two significant respects.
First, the
ALJ’s statement that she was “not bound by” the VA’s disability
ratings because the VA’s disability standards differed from
those of the Social Security Administration, (Tr. at 77),
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
rejection of the disability ratings constitutes a particularly
erroneous finding where, as in Bird, “[t]he VA rating
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decision[s] 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.” Id.
(emphasis added).
In fact, with the exception of a few pages of
records pertaining to physical therapy Plaintiff obtained
outside of the VA, (see Tr. at 951-74), Plaintiff’s treatment
records from the VA constitute the only medical evidence in the
record. (See Tr. at 169-75, 252-53, 255-850, 852-904, 906-10,
912-14, 917-50, 978-1000, 1002-186).
Second, the ALJ failed to
identify any grounds (let alone grounds that would amount to a
clear demonstration under Bird) for affording the VA ratings
less than substantial weight.
(See Tr. at 77.)1
Defendant argues that Mills v. Colvin, No. 5:13-CV-432-FL,
2014 WL 4055818, at *7-*9 (E.D.N.C. Aug. 14, 2014) (unpublished)
justifies the ALJ’s rejection of the VA’s disability ratings,
because the Mills court found “appropriate” the ALJ’s decision
to discount the VA’s rating as “based upon [the] plaintiff’s
diagnosed impairment [and] not the functional limitations
The ALJ did state that the “VA treatment records from
January 12, 2006 . . . do not substantiate that she is disabled,
even considering a disability rating from the VA.” (Tr. at 75.)
The subsequent description does go into some detail as to the
treatment records, but never explains why a 100% disability
rating should be disregarded. Even assuming, as Defendant
argues that the timing of the VA rating is a factor, (see Def.’s
Mem. (Doc. 11) at 12-13), it is the ALJ’s responsibility to
identify grounds for accepting or rejecting evidence.
1
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imposed by the impairment.”
(Def.’s Mem. (Doc. 11) at 12.)
However, Mills is distinguishable, because the ALJ in that case
expressly acknowledged the Bird decision, Mills, 2014 WL
4055818, at *9 (“The undersigned is mindful of the [Fourth
Circuit’s] recent holding that a VA disability determination
must be accorded ‘substantial weight’ in Social Security
disability proceedings,”), and carefully explained why deviation
from Bird’s substantial weight standard was warranted under the
facts of that case:
[T]he claimant’s rating for her spinal disorder is
based on nothing more than her range of motion,
according to the VA’s rating regulations and the
claimant’s VA rating decision. The rating does not
take into account the impact of the claimant’s
impairment on her ability to work or perform the seven
exertion requirements of work that the undersigned
must consider. Similarly, the claimant has been
assigned a 30% rating for a hysterectomy, but there is
no evidence before the undersigned that the fact that
the claimant has had a hysterectomy in any way
contributes to her inability to work or limits her
function in any way. Additionally, according to the
VA’s rating schedule, the claimant has been assigned a
rating of 40% for her incontinence because her
condition requires the wearing of absorbent materials,
which must be changed two to four times a day. Again,
this rating is based solely on medical criteria
without regard to the functional limitations that stem
from the impairment. The same point could be made
about the additional components of the claimant’s VA
rating decision. Virtually none of the rating
criteria used is related to functional limitations.
As such, the claimant’s VA rating, as well as the
opinions from the claimant’s military doctors
regarding her ability to work within the military, has
little to no relevance to the disability determination
the undersigned must make, and are therefore accorded
little weight.
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Id. at *8.
The ALJ’s above-cited analysis, which clearly
demonstrates the grounds for departure from the Bird substantial
weight standard, is precisely what is lacking from the ALJ’s
decision in the instant case.
An ALJ must “explicitly detail
the reasons for giving [a VA disability determination] less
weight.”
Thomas v. Colvin, Action No. 4:12CV179, 2013 WL
5962929, at *9 (E.D. Va. Nov. 6, 2013).
Further, citing to
“different rules and different standards” as a rationale to give
less than substantial weight to a VA disability determination is
not enough, because such a rationale would apply to every case,
and thus cannot clearly demonstrate a reason for departing from
the Bird presumption.
Id.
Here, as in Thomas, the ALJ merely
noted that she “was not bound” by the VA determination because
of the different basis for the rating.
(Tr. at 77.)
As such,
this court cannot tell if substantial evidence supports the
ALJ’s denial of benefits.
In sum, the ALJ reversibly erred by dismissing outright
Plaintiff’s VA disability ratings and by failing to adequately
explain how the record “clearly demonstrates” that said ratings
merit 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[s] in light of
the Fourth Circuit’s decision in Bird, . . . and [should]
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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)
(unpublished).5
III. CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is REVERSED and that the matter is
REMANDED under sentence four of 42 U.S.C. § 405(g), for further
administrative proceedings that properly address Plaintiff’s VA
disability ratings in accordance with the Fourth Circuit’s
decision in Bird. As a result, Defendant’s Motion for Judgment
on the Pleadings (Doc. 10) is DENIED, and that Plaintiff’s
Motion for Judgment on the Pleadings (Doc. 8) is GRANTED.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 22nd day of September, 2015.
_______________________________________
United States District Judge
5
Because reassessment of Plaintiff’s VA disability ratings
may well impact the ALJ’s conclusions at step two regarding the
severity of Plaintiff’s mental impairments, the credibility
analysis, and the RFC determination, the court declines to
address Plaintiff’s remaining assignments of error. (See Pl.’s
Mem. (Doc. 9) at 2-8, 9-15.)
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