DOOREY v. BERRYHILL
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAGISTRATE JUDGE L. PATRICK AULD on 04/09/2019, that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence f our 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 decisions in Bird and Woods. Defendant's Motion for Judgment on the Pleadings 10 should be denied and Plaintiff's Motion for Judgment on the Pleadings 8 should be granted in part (i.e., to the extent it requests remand). (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DANA DOOREY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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1:18CV79
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Dana Doorey, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 6 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 8, 10; see also Docket Entry 9 (Plaintiff’s Memorandum);
Docket
Entry
11
(Defendant’s
Memorandum);
Docket
Entry
12
(Plaintiff’s Reply). For the reasons that follow, the Court should
remand this matter for further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
January 15, 2014.
(Tr. 238-41.)
Upon denial of that application
initially (Tr. 77-91, 120-28) and on reconsideration (Tr. 92-116,
130-37),
Plaintiff
requested
a
hearing
de
novo
Administrative Law Judge (“ALJ”) (Tr. 138-39).
before
an
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 48-76.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 12-32).
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
235-37), thereby making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In
rendering
that
decision,
the
ALJ
made
the
following
findings:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2019.
2.
[Plaintiff] has not engaged in substantial gainful
activity since January 15, 2014.
3.
[Plaintiff] has the following severe impairments:
somatoform disorder, anxiety disorder, panic disorder,
major depressive disorder, personality disorder with
borderline and narcissistic features, fibromyalgia, right
knee degenerative joint disease, postural orthostatic
tachycardia syndrome (POTS), obstructive sleep apnea,
reactive airway disease, and perceived electromagnetic
hypersensitivity.
. . .
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 . . . except she can
occasionally climb ramps and stairs, but should never
2
climb ladders, ropes or scaffolds.
She must avoid
hazards including heights and large moving machinery and
she must avoid exposure to fumes and odors.
She is
capable of simple, routine tasks but no fast-paced, high
volume workloads.
She can perform tasks that can be
performed independently rather than in a group. She is
capable of occasional interaction with coworkers and
supervisors, but should have no interaction with the
general public. In addition, she would need the option
to sit every 30 minutes for about 1 to 2 minutes but
could continue working while seated.
. . .
6.
[Plaintiff] is unable to perform any 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 January 15, 2014, through
the date of this decision.
(Tr. 17-31 (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 . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given
those limitations, the Court should remand this case for further
administrative proceedings.
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).
reviewing
court must
uphold
the
factual
findings
Instead, “a
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 brackets 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 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 [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
1
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . 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
account
a
claimant’s
age,
education,
and
work
experience
addition to [the claimant’s] medical condition.”
Id.
regulations
process’
establish
a
‘sequential
evaluation
in
“These
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. Commissioner of 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,
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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
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
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 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 government cannot carry its “evidentiary burden of
proving that
[the
claimant]
remains
3
able
to
work
other
jobs
“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 workrelated 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.
7
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.4
B.
Assignment of Error
In Plaintiff’s first and only issue on review, she argues that
“[t]he ALJ’s decision violates Bird[ v. Commissioner, 699 F.3d 337,
343 (4th Cir. 2012)]” (Docket Entry 9 at 4 (bold font omitted)),
because the ALJ “fail[ed] to accord substantial weight to the
[United States Department of Veterans Affairs (‘VA’)] decision
finding [Plaintiff] disabled” (id. at 6 (referencing Tr. 28, 956)).
According to Plaintiff, “[t]he ALJ did not justify deviation from
this standard by providing ‘persuasive, specific and valid reasons
for doing so’” (id. (quoting Woods v. Berryhill, 888 F.3d 686, 692
(4th Cir. 2018))), but “instead accord[ed] [the VA decision] less
weight because [the VA and SSA] programs are ‘based on a different
set of regulations’” (id. (quoting Tr. 28, and citing, inter alia,
Northen v. Colvin, No. 1:15CV445, 2016 WL 5956636, at *5 (M.D.N.C.
Oct. 12, 2016) (unpublished) (Peake, M.J.), recommendation adopted,
slip op. (M.D.N.C. Nov. 9, 2016) (Schroeder, J.))).
Plaintiff
maintains that “[t]he error by the ALJ is particularly harmful
4
A claimant thus can qualify as disabled 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.”).
8
because the 100 percent disabled rating for [Plaintiff’s] mental
disorders
and
its
reasons
for
assigning
that
percentage
are
substantiated by the medical record and the testimony at the
hearing.”
(Id. at 8 (citing Tr. 64, 65, 395-99, 425, 426, 430,
431-32, 441, 455, 456-57, 462, 466, 492, 700, 702, 757, 759, 834,
835, 836, 939, 968, 969, 1028, 1080, 1304, 1627, 1636, 1731, 1771,
1794-95, 1935, 1937, 1950, 1964, 1981-82, 2028, 2040, 2043, 2051,
2071,
2072,
2076,
2084,
2086-87,
2091,
2162,
2167,
2189).)
Plaintiff’s contentions have merit and warrant remand.
On March 9, 2015, the VA issued a 100 percent disability
rating effective December 1, 2014, for Plaintiff’s “[d]epressive
disorder also diagnosed as PTSD, anxiety with symptoms of phobia”
based upon multiple symptoms, including “[i]ntermittent inability
to perform maintenance of minimal personal hygiene,” “[d]ifficulty
in adapting to stressful circumstances,” “[s]uicidal ideation,”
“[n]ear continuous depression affecting the ability to function
independently, appropriately and effectively,” “[i]mpaired impulse
control,” “[d]ifficulty in establishing . . . work and social
relationships,”
“[d]isturbances
of
motivation
and
mood,”
“[i]mpaired judgment,” “[p]anic attacks (weekly),” “[m]ild memory
loss,”
“[c]hronic
“[s]uspiciousness.”
sleep
impairment,”
(Tr. 954, 956.)
“[a]nxiety,”
and
The VA indicated that it
based its 100 percent disability rating, in part, on the assessment
of Dr. Thomas B. Toy (see Tr. 956), who completed a Mental
9
Disorders Disability Benefits Questionnaire on December 6, 2014
(Tr. 395-99), diagnosing Plaintiff with Major Depressive Disorder,
Generalized Anxiety Disorder, and PTSD, and assigning Plaintiff a
Global Assessment of Functioning (“GAF”) score of 30 (see Tr.
395).5
The VA noted that a GAF range of 21 to 30 “indicates
behavior is considerably influenced by delusions or hallucinations;
or serious impairment in communications or judgment; or inability
to function in all areas.”
(Tr. 956.)
Dr. Toy further found
Plaintiff “an extremely emotionally fragile woman who can, under
stress,
become
psychologically
intensive psychotherapy.”
fragmented”
and
who
“need[s
]
(Tr. 399.)
A short time later, on August 7, 2015, the VA issued a
disability
rating
effective
March
18,
2015,
for
Plaintiff’s
physical and mental impairments, including the following:
C
obstructive sleep apnea - 50 percent
C
fibromyalgia - 40 percent
C
cervical strain - 20 percent
C
left upper extremity radiculopathy affecting the
lower radicular group - 20 percent
C
lumbar strain - 10 percent
C
residuals of sprained right ankle - 10 percent
5
The GAF is a numeric scale from 0 to 100 representing a clinician’s
judgment of an individual’s social, occupational and school functioning “on a
hypothetical continuum of mental health-illness.” American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev.
2000). A new edition of the leading treatise discontinued use of the GAF. See
American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
16 (5th ed. 2013).
10
C
temporomandibular
percent
C
depressive disorder also diagnosed as PTSD, anxiety
with symptoms of phobia - continued at 100 percent
C
special monthly compensation
meeting housebound criteria
joint
syndrome
(“TMJ”)
granted
-
10
based
on
(Tr. 378-79.)
In evaluating the VA’s disability ratings, the ALJ stated as
follows:
[Plaintiff] is receiving disability benefits through the
VA which became effective in December 2014, for events
connected to her military service. The [ALJ] gives this
finding little weight because such statements are not
medical opinions, but are instead, administrative
findings based on a different set of regulations and
considered in connection with [Plaintiff’s] service in
the armed forces. In addition, the finding of disability
under [the SSA’s] regulation is an issue reserved for the
Commissioner.
(Tr. 28 (emphasis added) (internal citations omitted).)
The ALJ
also accorded “little weight” to Dr. Toy’s opinions, in part,
because
“the
VA’s
disability
requirements
are
based
[on]
a
different set of regulations and are considered in connection with
[Plaintiff’s]
service
in
the
armed
forces.”
(Id.
(emphasis
added).)
In Bird, the United States Court of Appeals for the Fourth
Circuit addressed for the first time the “weight that the SSA must
afford to a VA disability rating.”
11
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 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. (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.
2002)) (internal 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
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). Following Bird, the Fourth
Circuit
further
clarified
“what
12
an
ALJ
must
do”
to
clearly
demonstrate
the
appropriateness
of
a
deviation
from
Bird’s
substantial weight standard:
We now conclude, consistent with our sister circuits,
that in order to demonstrate that it is “appropriate” to
accord less than “substantial weight” to a[ ] disability
decision, an ALJ must give “persuasive, specific, valid
reasons for doing so that are supported by the record.”
Woods, 888 F.3d at 692 (quoting McCartey, 298 F.3d at 1076)
(emphasis added).
Here, the ALJ’s consideration of Plaintiff’s VA disability
ratings runs afoul of Bird and Woods.
The ALJ’s statement that the
VA’s disability ratings “are not medical opinions, but are instead,
administrative findings based on a different set of regulations”
(Tr. 28 (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).
Moreover,
in Woods, the Fourth Circuit expressly rejected the ALJ’s rationale
for rejecting a state agency Medicaid disability determination that
the
agency
utilized
different
standards,
noting
that
such
a
“generic explanation, which could apply to every [state agency
Medicaid] decision, [wa]s neither persuasive nor specific.” Woods,
888 F.3d at 693; see also Northen, 2016 WL 5956636, at 85 (“As this
Court has previously explained, citing to different rules and
different standards as a rationale to give less than substantial
13
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.”).
The Commissioner defends the ALJ’s reasoning for rejecting the
VA’s disability ratings, arguing that “the ALJ spent seven pages
scrupulously
reviewing
the
medical
evidence,”
and
that
such
“evidence was sufficient to discount the VA disability rating.”
(Docket Entry 11 at 4 (citing Tr. 20-27).)
In that regard, the
Commissioner points to the fact that the ALJ credited the opinion
from June 15, 2016, of Plaintiff’s treating psychiatrist, Dr.
Robert Fleury, who “opined that Plaintiff had no limitation in her
ability to understand, remember, and carry out short, simple
instructions, and only moderate limitation in her ability to handle
detailed instructions; interact with co-workers and the public; and
deal with work stresses and routine workplace changes.”
(citing Tr. 27, 1038-39).)
that
“the
VA
disability
(Id.
The Commissioner additionally argues
rating
conflicted
significantly
with
treatment notes discussed by the ALJ,” such as descriptions of
Plaintiff as “well-appearing” (id. at 5 (citing Tr. 22-23, 431,
465, 500, 502, 504, 507, 509, 512, 519, 531, 972, 978, 998, 1004,
1006, 1044, 1048, 1053)) and as having “normal memory” (id. (citing
Tr. 22-23, 1201, 1214, 1221, 1480, 1492, 1503, 1512, 1523, 1536,
1548, 2037, 2042, 2050, 2053)).
14
However, “the administrative decision in this case lacks any
of the explanation included in [the Commissioner’s] brief, and the
Commissioner’s attempt to supply it after-the-fact fails to remedy
the ALJ’s omission.”
Northen, 2016 WL 5956636, at *5.
As
Plaintiff contends in her Reply, the Court “cannot engage in post
hoc rationalization” to find substantial evidence to support the
ALJ’s decision to discount the VA’s disability ratings (Docket
Entry 12 at 2).
318
U.S.
80,
See Securities & Exch. Comm’n v. Chenery Corp.,
87
(1943)
(holding
that
courts
must
review
administrative decisions on the grounds upon which the record
discloses the agency relied); Radford v. Colvin, 734 F.3d 288, 294
(4th Cir. 2013) (rejecting the Commissioner’s argument in part as
“a post[-]hoc rationalization”) (citing Christopher v. SmithKline
Beecham Corp., 567 U.S. 142, 155 (2012)); Bray v. Commissioner of
Soc.
Sec.
Admin.,
554
F.3d
1219,
1225
(9th
Cir.
2009)
(“Long-standing principles of administrative law require us to
review the ALJ’s decision based on the reasoning and factual
findings offered by the ALJ — not post hoc rationalizations that
attempt to intuit what the [ALJ] may have been thinking.” (citing
Chenery, 332 U.S. at 196)).
The Commissioner additionally contends that “[t]he VA issued
its
rating
in
March
2015”
but
“the
adjudicated
period
in
Plaintiff’s Social Security claim extended over two years later.”
(Docket Entry 11 at 5.)
Thus, the Commissioner contends that
15
“[t]he VA’s rating pre-dates [Dr. Fleury’s June 15, 2016 opinion],
as
well
as
other
evidence
Plaintiff’s condition.”
1076).)
demonstrating
improvement
in
the
(Id. (citing Tr. 23, 1056, 1060, 1064,
This argument fails for two reasons.
First,
evidence
as
Plaintiff
available
at
argues,
the
[]
“an
ALJ
hearing
explaining
demonstrates
how
new
changed
circumstances from when the VA disability decision was issued could
constitute
justification
for
giving
less
weight
to
the
VA
disability rating – but the ALJ must explain this in her decision.”
(Docket Entry 12 at 3 (quoting Woods, 888 F.3d at 693 (“This list
[of ways an ALJ could explain assigning less than substantial
weight to an agency’s disability rating] is not exclusive, but the
point of this requirement – and of these examples – is that the ALJ
must adequately explain h[er] reasoning; otherwise, we cannot
engage in meaningful review.”).)
The ALJ’s decision here does not
expressly rely on improvement in Plaintiff’s condition to justify
departure from the substantial weight standard.
Second,
the
sporadic
examples
the
Commissioner
cites
as
evidence of alleged “improvement in Plaintiff’s condition” (Docket
Entry 11 at 5 (citing Tr. 1056, 1060, 1064, 1076)) do not appear
sufficient to offset the overwhelming contrary evidence, relied on
by Plaintiff, of deterioration in her mental condition following
the VA’s disability ratings in March and August of 2015 (see Docket
Entry
9
at
10-12
(citing,
inter
16
alia,
Tr.
1304-10,
1627-28
(Plaintiff’s
involuntary
commitment
in
September
2015
after
ingesting pills with an admission GAF of 22), 1794-95 (Plaintiff’s
report in April 2016 that she had “multi-chemical syndrome,” could
not tolerate strong smells, new carpets, new paint, glue, mold, or
smoke, and had moved 22 times in two years due to that syndrome),
2076-78 (Plaintiff’s emergency room treatment in October 2016 after
a suicide attempt), and 2084-99 (Plaintiff’s involuntary commitment
in October and November 2016 reflecting her continued reports that
she could not tolerate chemicals, sound, touch, and electricity,
and could not live in any homes with electricity))).
At a minimum,
the Court cannot conclude that the evidence would have required the
ALJ to discount the VA disability rating.
Under such circumstances, Plaintiff has demonstrated that the
ALJ committed prejudicial error by failing to provide “persuasive,
specific, valid reasons for [declining to give substantial weight
to the VA’s disability ratings] that are supported by the record,”
Woods, 888 F.3d at 692.
17
III. CONCLUSION
Plaintiff has established grounds for relief.6
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
ratings
in
accordance
decisions in Bird and Woods.
with
the
Fourth
Circuit’s
As a result, Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 10) should be denied and
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 8)
should be granted in part (i.e., to the extent it requests remand).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 9, 2019
6
Plaintiff’s Memorandum alternatively asks for “judgment in her favor with
a reversal of the ALJ’s decision for an award of benefits or with a remand of the
matter for a new hearing.” (Docket Entry 9 at 13.) In this case, the Court
should opt for remand for compliance with Bird and Woods, because Plaintiff’s
Memorandum does not develop any argument for remand for purposes only of awarding
benefits (see id. at 1-13) and her reply expressly asserts that “remand is
required so that the ALJ can comply with Bird” (Docket Entry 12 at 3).
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