TRAMMELL v. COLVIN

Filing 13

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/24/2017, that the Commissioner's decision finding no disability be REVERSED, and the matter be 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, Plaintiffs motion for judgment (Docket Entry 9 ) should be GRANTED and Defendant's motion for judgment on the pleadings (Docket Entry 11 ) be DENIED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DOLORES J. TRAMMELL,

Plaintiff,
v

NANCY BERRYHILL,
Acting Commissioner of Social Security
Administration,
Defendant.

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t16CV586

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE IUDGE
Plaintiff Dolores J. Trammell brought this action to obtain review of a final decision

of the Commissioner of Social Securityl denying her claims for disability insurance benefits

("DIB')

and supplemental securiry income

("SSI'). The Court

has before

it the certifìed

administrative record2 and cross-motions for judgment.

I.

PROCEDURAL HISTORY

Plaintiff filed apptications for DIB and SSI in Octobe r
onset date of

ApriI4,2012. (ft.

of

2ll2alleging a disability

15, 34,200-21,0.) The applications were denied initially and

I Nancy Berryhill recently became the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill should be substituted for Carolyn
!7. Colvin as Defendant in this suit. No further action need be taken to continue this suit by reason
of the last sentence of section 205(9) of the Act, 42 U.S.C. S 405@.
2

Transcript citations refer to the Administrative Transcript of Record filed manually with
Answer. (Docket Entry 7.)

the Commissioner's

upon reconsideration. Qd. at 113-L6,1,24-31,,1,32-41.) Plaintiff requested a hearing before
an,{.dministrative LawJudge

("ALJ").

Qd.

at142-43.) ,\fter a hearing, the ALJ determined

that Plaintiff was not disabled. (d. at 15-26,34-50.) The Âppeals Council denied a request
for review, making the r{,LJ's determination the Commissioner's final decision for purposes

of

review. (d. at 3-7 .)

II. STANDARD FOR REVIEW
The scope of ¡udicial review of the Commissioner's fìnal decision is specific and

narrow. Smith u. Schweiker, 795 tr.2d 343, 345 (4th Ch. 1936). Review is limited to
determining

if

there is substantial evidence

in the record to support the Commissioner's

decision. 42 U.S.C. $ a05(g); Huruteru. Sal/iuan,gg3F.2d31,34 (4th Cir. 1,992); Hqs

u. Salliuan,

907 F.2d1,453,1456 (4th Cir. 1990). In reviewing for substantial evidence, the Court does

not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment

fot that of the Commissioner. Craigu. Chater,76tr.3d 585,589 (4th Cir. 1,996). The

befote the Court, therefore,

is not whether Plaintiff is

disabled

issue

but whether the

Commissioner's fìnding that she is not disabled is supported by substantial evidence and was
teached based upon a correct application of the relevant

law.

Id.

III. THE ALJ'S DECISION
The ALJ followed the sequential analysis, which is set forth in 20 C.F.R. $S 404.1520
and 416.920., to ascettain whether the claimant is disabled.

See

Albright u. Comm'r

of Soc. Sec.

Admin.,1.74tr.3d 473,475 n.2 (4th Cir. 1999).¡ The ALJ determined at step one that Plaintiff

t

"The Commissioner uses a five-step pïocess to evaluate disability claims." Hanwck
2

u.

Aslrae,

had not engaged in substantial gainful activity since the,A,pdl 4,201,2 alleged onset

17.) The

,A,LJ

next found the following severe impairments at step

affective disotder, and anxiety-related disorder.

date. (T..

two: arthritis,

obesity,

(Id.) At step three, the ALJ found that

Plaintiff did not have an impairment or combination of impairments listed in, or medically
equal to, one listed in,\ppendix

1.

(Id.)

The ALJ next set forth PlaintifPs Residual Functional Capacity ("RFC")

and

determined that she could perform

work that involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds; pushing
or pulling similar amounts; sitting, standing, and walking for 6 hours
each; no more than frequent postural activity; no more than occasional
interaction with supervisors and coworkers but no more than
superfìcial/incidental contact with the public, such as sharing common
areas like hallways and elevators; no more than simple, routine, repetitive
tasks performed with a pace and stress tolerance that allows for no
production quotas.

(Id. at 20.) T'he AIJ made no fìnding at step four, concluding that the evidence was
insuffìcient to do

so. (ld. at25.)

Last, at step fìve, the ALJ determined that there were jobs

in the national economy that Plaintiff could perform. (Id.)

Consequently, the ,ALJ

concluded that Plaintiff was not disabled.

667 F.3d 470,472-73 (4th Cir. 2012) (ciung 20 C.F.R. S 416.920("Xa)). "Under rhis process, the
Commrssionet asks, in sequence, whether the claimant: (1) worked during the alleged period of
disability; Q) had a severe impairment; (3) had an impailment that met oÍ equaled the requirements of
a listed impairment; (4) could return to his [or her] past relevant work; and (5) if not, could perform
any other work in the national economy." Id. Â finding adverse to the claimant
of several
^t ^ny
in this five-step sequence forecloses a disability designation and ends the inquiry. Id.
points
J

ry. ISSUES AND ANALYSIS
Plaintiff raises a number of issues in het

brief. In pertinentpart, Plaintiff

contends

that the ALJ materially erred in not giving the North Czrohna Department of Health and
Human Services' ('NCDHHS") determination that she was eligible for Medicaid disability
proper consideration under Social Security Ruling ('SSll") 06-03p. (Docket E.rt y

16.) For the following

1.0

at

1.3-

reasons, the Court agrees that remand is in order.

More specifically, SSR 06-03p provides in pertinent part that:
evidence of a disabiliry decision by another governmental or
nonÉìovernmental agency cannot be ignored and must be
considered. . . .

ffie

are not bound by disability decisions by other governmental

and nongovernmental agencies.

In

addition, because other
agencies may apply different rules and standards than we do for
determining whether an individual is disabled, this may limit the
relevance of a determination of disability made by another
âgency. However, the adjudicator should explain the
consideration given to these decisions in the notice of decision
for heating cases and in the case record for initial and
reconsideration cases.
SSR 06-03p, ConideringOpinion.r and OtherEuidence þ-rom Sowræ¡ ll/ho Are Not 'An'eþtable Medical

Sottrce¡"

in Divbiliry Cløims;

Nongouernmenta/

Conidering Dedsioru¡ on Disabitlijt

þt

Other Gouernmental and

Agende¡2006WL 2329939, at *ó-7 (Aug. 9,2006).

In interpreting SSR 06-03p, the Fourth Circuit has considered "the precise weight that
the SS,\ must affotd to a V,\ disability
337

ntsng." Ilird u. Comm'r oJ'Soc. Sec. Admin, 699 F.3d

,343 (4th Cir. 201,2). In addressing this question, the Fourth Circuit noted that, "the VA

and Social Security programs serve the same governmental purpose of providing benefìts to
4

persons unable to work because of a serious disability."

Id. It reasoned

further that "þ]oth

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 requite claimants to present extensive medical documentation

in support of their

claims." Id. (quotaions omitted).
The Foutth Circuit concluded that "þ]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." Id. Thus, l'in

making

a

disability determination, the SSA [Social Security Âdministration] must give substantial weight

to a V.A, disability rattng."

Id.

"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 nlngwhen the record before the ALJ clearly demonstrates that such a deviation
is apptopriate."

Id. Bird has subsequently

but Medicaid awards

a

been intetpreted to include not only VA awards

as well.a

No. 2:16-CV-00058-D , 2017 WL 3044573, at +4 (E.D.N.C. June 28,
2017) (unpublished) ("Subsequent case law within the Fourth Citcuit has explicitly extended the
holding in Bird to Medicaid decisions, noting that both the Medicaid and VÂ disability programs share
markedly similar standards and requirements with the DIB and SSI programs at issue hete."),
See Pergt u. Berryhill,

renmmendation adopted,201,7

1:13CV788 ,201,5

WL

WL3038222 (E.D.N.C.July 17,2017) (unpublished); Chrisne u. Coluin,No.
*4 (l\4.D.N.C.
8,201,5) (unpublished) (collecting cases in support

411,2442,

July,

of the proposition that "Although Bird involved a decision by the Veterans Administration ("V,{.")
rather than the NCDHHS, subsequent case law within the Fourth Circuit has explicitly extended the
holding in Bird to Medicaid decisions, noting that both the Medicaid and VA disability programs shate
markedly similar standards and requirements with the DIB and SSI programs ât issue here.")
(unpublished).
5

Consequently,

in order to

satisfy SSR 06-03p and Bird

an,{LJ must meaningfully

articulate how substanaal evidence supports a conclusion that the disability determination

of

another agency is entitled to limited or no weight. See, e.g., Bird, 699 F.3d at 343; Adams

u.

Coluin,

No.

5:1,4-CY-689-KS, 20'1,6

ìøL

6971.38,

*4

(E.D.N.C. February 22,

201,6)

(unpublish ed); Hilrlreth u. Coluin,No. 1:14CV660, 201,5WL 5577430,x4 (M.D.N.C. September

22,2015) (unpublished); Gillit

u. Coluin,

August 4, 2015) (unpublished),
(unpublished); McCall u. Coluin,

No. 1:14CV426,2015 WL 4644777, x3-4 (À4.D.N.C.

recommendation adopted,

sltp op. O4.D.N.C. Aug. 26,

201,5)

No. 1:14-00063-trD\)í,201.4 WL 5039424, *3 flX/.D.N.C.,

October 9,2014) (unpublished); Millt u. Coluin, No. 5:13-CV-432-FL,201,4 WL 4055318, *8
(E.D.N.C. August'14,201,4) (unpublished);Barghman u. Coluin, No. 5:13-CV-143-FL,201,4WL
3345030, at x8 (E.D.N.C. July 8,2014) (unpublished).

Otherwise, an ALJ has committed reversible error, and the case must be remanded to
develop an adequate record for review.

See

Baaþman,201,4 WL 3345030, at*8; Flildreth,201,5

WL 5577430, atx1. This requirement of a clea;. articulation comports with the more general
requirement that an,A,LJ "must build an accurate and logical bridge from the evidence to [the]

conclusion." Clffird

u,

Apfel,227 F.3d863,872 (7th Cir.2000).

Here, the NCDFIHS concluded that due to her "severe impairments of depression,
anxiety, OCD, and PTSD," Plaintiff "meets the disability requirement referenced in 20 C.F.R.
41,6.920(d), Appendix 1,

Listing 12.04 [.{ffective Disorders] which directs a fìnding of

disabled." Çr.230.) However, in his decision, the,{LJ only made one explicit reference to
the N CDH HS Medicaid disability determination.
6

Specifìcally, the ALJ stated in his decision that:

I am mindful

that the claimant has been found disabled by the

North CarcIna Department of Fluman Services and is now
receiving disabiliry payments from that agency @,xhibit 8D).
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 proceeding, meriting no specifìc deference of
weight (20 CFR 404.1504 and 4'1,6.904, see aln SSR 96-5p).
(Id.

at24.) The,\LJ's

analysis is inadequate

for ar least four reasons.

First, an ALJ cannot satisfy SSR 06-03p merely by mentioning an agency determination
and then stating that it is not

binding.

See,

e.!., Baø¿hnan u. Coluin,

No. 5:13-CY-1,43-FL,201,4

WL 3345030, at *8 (E.D.N.C. July 8,201,4) (unpublished) ("[!]he ALJ's clearly stated reasonthat the Medicaid determination is not binding-is insuffìcieût.").5 SSR 06-03p anticipates
that "the adjudicatot should explain the consideration given to these decisions in the notice

of

decision fot heating cases" even though the SSA is "not bound by disability decisions by other
governmental and nongovernmental âgencies." SSR 06-03

p,2006WL

232gg39,

atx7. The

reason that SSR 06-03p sets forth this requirement is because the ruling provides guidance on

how an ,\LJ should weigh eaidence. Id. at *6
the case

re

cord that may have

a bearing

("ffie

are required

to evaluate all the euiclence in

on our determination or decision of disability , inclading

decisions by other governmental and nongovernmental agencies (20 CFR 404.1,51,2þ)(5) and

t The Court acknowledges the presence of some case law from district courts within this
circuit that has approved a more "cursory discussion" in which an ALJ "notes that other governmental
determinations have been considered, but assigned little weight." See e.g.l[/ood¡ u. Berryhill, NO. 1:16cv-00058-MOC-DLH, 2017 WL 1190920, +2 CX/.D.N.C. March 29, 2017) (collecting cases). As
explained herein, however, this Court finds the cursory approach inadequate.
7

41,6.91,2þ)(5).") (emphasis added). A statement that anothet agency's decision is not binding
aathoriry does satisfy SSR 06-03p's euidentialJ

concetî.

Here, the only explanation that the ALJ gave for his apparent rejection

of the

NCDFIHS decision was that "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 proceeding, meriting no specific deference of

weight." (ft.24).

r\s noted, this cursory discussion of the NCDHHS decision cannot satisfy SSR06-03p's
evidentiary concern.

See, e.!.,

Hildreth, No. 1:14CV660, 2015

løL

5577430 atx4

("lc]iting to

'different rules and different standards' as a ralonale to give less than substanlal weight to

VA disability detetmination is not enough,

a

because such a rationale would apply to every case,

and thus cannot cleady demonstrate a reason for departing from the Bird presumption. Here,

. . . the ALJ merely noted that she 'was not bound' by the VA determination because of the

different basis fot the rating. As such, this court cannot tell
the

if

substantial evidence supports

AIJ's denial of benefits.") (citations omitted).
Second, and likewise, the ALJ failed to sufficiently explain his decision not to afford

the NCDHHS decision weight in violation of both SSR 06-03p and Bird. An ALJ's analysis
that assigns limited or no weight to the disability decision of another ageocy is adequate under
SSIì 06-03p and Bird,when

it demonstrates that: (1) the other agency's disability decision was

inconsistent with specifìc evidence in the record,
2015

ìíL

4644777,atx4-5;McCall

material diffetence

in the

u.

see

Hildreth, 201.5 WL 5577 430, at *4; Gi//i¡,

Coluin,2014WL 5089424,at*3,or (2) there was

standards applied by the other agency
8

in reaching its

a specifìc,

disability

determination that limited the decision's relevan ce, r'ee SSll 0ó-03 p, 2006 WL 2329939, at x7;
F[ildreth,2015WL 5577430 at*2; Mi//.ç,201,4VA 4055818,

ñ*

3,8-9.

Here, there is no discussion in the ALJ's decision regarding the two points set out
above concerning the NCDHHS decision. Absent such an explanation, this Court can only
conclude that the ALJ dismissed the NCDHFIS decision because

it was not binding.

Since

this is the only express reason given by the ALJ for dismissing the NCDHHS decision, rhe
ALJ's analysis is insuffìcient under SSR 06-03p and Bird.

See

Baaghman,20nl4løL 3345030, at

x8; Hildretlt, 201.5 WL 5577 430 at *4.

Thitd, the ALJ's failure to provide the necessaty explanation is not harmless. This
Court may not speculate how an ALJ might have meant to articulate the logical bridge between
the evidence of record and the conclusion.6 "[4.]ssessing the probative value of competing
evidence is quintessentially the tole

of the fact fìnder and this Court is not authorized to

undertake the analysis in the first instance." Dobbin u. Coluin,1:13CV558,201.6WL 4250338,
x4 (À4.D.N.C. Â.ugust 10, 2016) (unpublished) (citations omitted); Hildreth,201,5 WL 5577 430

úx4.

The ALJ's failure to adequately explain himself on this issue warrants remand.

6

See Nken u. Holder,5B5 F.3d 81.8,822 (4th. Cir. 2009) ("In such cilcumstances, a reviewing
coutt must remand to the administrative agency. Established precedent dictates that a court may not
guess at what an agency meant to say, but must instead restrict itself to what the âgency actually did
say."); Baughman,2014WL3345030, at xB ("[T]he court cannot conclude, as the Commissioner urges,
that the ALJ's teal teason for drsmissing the Medicaid decision can be found in the subsequent RFC
discussion, which provides no clear insight into the AIJ" consideration of the Medicaid decision . . .
T'he fact that the ALJ explained his determination that Claimant was capable of light work does not
necessarily mean that the ALJ adequately considered the Medicaid decision in making that

determination....").

()

Fourth, Defendant's arguments to the contrztJ ate unpersuasive. Defendant contends
that in explaining why Plaintiff did not meet Listing 12.04 at step three of his decision in this
case (the same listing that was met

in the NCDFIHS decision), the ,\LJ also gave good reasons

for failing to give weight to the NCDHHS decision. (Docket Entty 12 at 16-17.) However,
the fact that an ALJ engaged in a separate analysis of the same condition and the

same

underlying evidence is not necessadly dispositive of whether an ALJ adequately: (1) considered
another agency decision under SSR 06-03p,7 ot (2) demonstrated that a deviation frcm Bird'¡
substantial weight presumption was appropriate. I

Defendant also insists that this case does not require remand, because "the Medicaid
decision did not comply with Social Security regulations for evaluating the severity of a mental

impaitment, because

Etttry

'12

it did not consider the parz;graph B factots in the Listing." (Docket

at 18.) However, this is tantamount to supplyrng

a post-hoc

nionahzats,on for the

agency's decision, which, as noted, is impermissible.

Moreover, Defendant's argument on this point also appears tantamount to contending

that the NCDHHS decision is too conclusoty to warrant meaningful review and explanation.

To the extent Defendant is making such an argument, it is unpersuasive.
Coluin,

See, e.!.,

Ca¡kin¡

u.

No. 3:12-CV-81, 2013WL31,48717, atx3-4 OJ.D.Ií. Va. June 1,9,201,3) (unpublished)

7

See Baughman,201,4

!øL 3345030, at *8 ("The fact that the ÂLJ explained his determination

thatClarnant was capable of light work does not necessarily mean that the ALJ adequately considered
the Medicaid decision in making that determination . . . .").
8

See Bird,699 F.3d. at343; ¡ee also Hildrerh,2Ol5 nøL 5577430,at*4 ("AIALJ must'explicitly
detail the reasons for giving [a VA disability determinationl less weight.") (quoting Thomøs u. Colrin,
Action No. 4:12CV1.79,201.3WL 5962929, at*9 (E.D.Va. Nov. 6, 2013) (unpublished).)

10

(holding that even if the evidence of the Medicaid decision is "conclusory," "the Social Security

,tdministtation's own intetnal policy interpretation rulings affirmatively requiref] the ,\LJ to
consider evidence

of a disability

decision by another governmental agency," and these

regulations "do not limit the required review of other agency's disabiliry determinations to
cases

where the decision is substantive" because "to the extent that Medicaid decisions employ

the same standards as the Social Securiry Administration uses in disability determinations, such

decisions are probattve in situations such as the instant one where afl agency has applied the
same rules yet reached the opposite result

fiom the Social Security.{dministaLdlofl" (internal

quotations, brackets, and citations omitted)).

None of this necessarily means that Plaintiff is disabled under the Act and the
undersigned expresses no opinion on that matter. Nevertheless, the undersigned concludes

that the proper course here is to remand this matter for further administrative proceedings.

'llhe Court declines consideration of the additional issues raised by Plaintiff at this time.
Flant'oc'k

u. Børnhart,206 F.Supp.2d 757,763-764 [W.D. Ya.2002) (on remand, the prior

decision of no preclusive effect, as it is vacated and the new hearing is conducted).

V. CONCLUSION
Aftet

a carefisl consideration of the evidence of record, the Court fìnds that the decision

of the ALJ is not susceptible to judicial review. Accordingly, this Court RECOMMENDS
that the Commissioner's decision fìnding no disability be REVERSED, and the matter be

REMANDED to the Commissionet undet

sentence four

of 42 U.S.C.

S 405(g). The

Commissioner should be ditected to remand the matter to the,{LJ for furher administrative
1,1

actiori as set out above. To this extent, Plaintiffs motion for judgment (Docket Entry 9)
should be GRANTED and Defendant's motion for judgment on the pleadings (Docket Entty
11) be

DENIED.

L
Stnt* hl4gi*rr¡e Ju.{Be

August 24,2017
Dutham, North Carcbna

12