Myers v. Commissioner of Social Security Administration

Filing 17

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the case to the Commissioner for further administrative action. Signed by Magistrate Judge Paige J. Gossett on 09/03/2015. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Earl Wayne Myers, II,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security,
)
)
Defendant.
)
____________________________________)

C/A No. 0:14-2424-PJG

ORDER

This social security matter is before the court pursuant to Local Civil Rule 83.VII.02 (D.S.C.)
and 28 U.S.C. § 636(c) for final adjudication, with the consent of the parties, of the plaintiff’s
petition for judicial review. The plaintiff, Earl Wayne Myers, II, brought this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting
Commissioner of Social Security (“Commissioner”), denying his claims for Disability Insurance
Benefits (“DIB”). Having carefully considered the parties’ submissions and the applicable law, the
court concludes that the Commissioner’s decision should be reversed and that the case should be
remanded to the Commissioner for further administrative action.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated
by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an
“inability to do 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.” 20 C.F.R. § 404.1505(a); see also

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Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the ALJ to consider,
in sequence:
(1)

whether the claimant is engaged in substantial gainful activity;

(2)

whether the claimant has a “severe” impairment;

(3)

whether the claimant has an impairment that meets or equals the requirements of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”), and
is thus presumptively disabled;

(4)

whether the claimant can perform his past relevant work; and

(5)

whether the claimant’s impairments prevent him from doing any other kind of work.

20 C.F.R. § 404.1520(a)(4).1 If the ALJ can make a determination that a claimant is or is not
disabled at any point in this process, review does not proceed to the next step. Id.
Under this analysis, a claimant has the initial burden of showing that he is unable to return
to his past relevant work because of his impairments. Once the claimant establishes a prima facie
case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner
must establish that the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience, and impairments, to perform alternative jobs that exist in the national
economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050,
1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a
vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).

1

The court observes that effective August 24, 2012, ALJs may engage in an expedited
process which permits the ALJs to bypass the fourth step of the sequential process under certain
circumstances. 20 C.F.R. § 404.1520(h).
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ADMINISTRATIVE PROCEEDINGS
In January 2011, Myers applied for DIB, alleging disability beginning September 30, 2005.
Myers’s application was denied initially and upon reconsideration, and he requested a hearing before
an administrative law judge (“ALJ”). A hearing was held on August 2, 2011, at which Myers, who
was represented by Patrick D. Partin, Esquire, appeared and testified. After hearing testimony from
a vocational expert, the ALJ issued a decision on October 23, 2012 finding that Myers was not
disabled. (Tr. 25-36.)
Myers was born in 1971 and was thirty-eight years old on his date last insured. (Tr. 149.)
He has a high school education, received a certification for fire fighting, and has past relevant work
experience as a fire fighter and a computer operator. (Tr. 182.) Myers alleged disability due to back
injury, osteopenia, instability in his left and right ankles, major depressive disorder, hypertension,
high cholesterol, lower leg conditions of instability, “polynearpathy”, major anxiety, mood disorder,
“arthisticis”, a severe right and left ankle condition, and major depression. (Tr. 181.)
In applying the five-step sequential process, the ALJ found that Myers had not engaged in
substantial gainful activity from his alleged onset date of September 30, 2005 through his date last
insured of December 31, 2009. The ALJ also determined that, through the date last insured, Myers’s
degenerative disc disease of the cervical spine, degenerative joint disease of the left ankle, bilateral
ankle pain, polyneuropathy, depression, and anxiety were severe impairments. However, the ALJ
found that, through the date last insured, Myers 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 (the “Listings”). The ALJ further found that, through the date last
insured, Myers retained the residual functional capacity to
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perform a range of sedentary work as defined in 20 CFR 404.1567(a) in that he could
lift and carry up to twenty pounds occasionally and ten pounds frequently; and stand
and walk for about two hours in a workday. He could operate foot pedals or other
foot controls no more than occasionally. He could occasionally balance, stoop, kneel,
crouch, crawl, and climb stairs or ramps but never climb ladders, ropes, or scaffolds.
He had to avoid concentrated exposure to unprotected heights and dangerous
machinery. He was further restricted to unskilled work with simple, routine tasks,
requiring no more than occasional interaction with the public.
(Tr. 29-30.) The ALJ found that, through the date last insured, Myers was unable to perform any
past relevant work, but that considering Myers’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the national economy that
Myers could perform. Therefore, the ALJ found that Myers was not disabled from the alleged onset
date of September 30, 2005 through the date last insured (“DLI”) of December 31, 2009.
The Appeals Council denied Myers’s request for review on April 25, 2014, making the
decision of the ALJ the final action of the Commissioner. (Tr. 1-4.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner’s denial of benefits.
However, this review is limited to considering whether the Commissioner’s findings “are supported
by substantial evidence and were reached through application of the correct legal standard.” Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner’s
decision is supported by substantial evidence and whether the correct law was applied. See Myers
v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence” means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more
than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d

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at 589. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence,
make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id.
Accordingly, even if the court disagrees with the Commissioner’s decision, the court must uphold
it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Myers raises the following issues for this judicial review:
I.

Is the Commissioner’s decision that Plaintiff is not disabled supported by
substantial evidence and correct under controlling law?
A.

The ALJ erred in failing to properly evaluate Plaintiff’s subjective
symptoms.

B.

The ALJ erred in ignoring the opinions of an examining psychologist
on the issue of Plaintiff’s ability to work in medical evidence before
and shortly after the DLI.

C.

The ALJ failed to give proper weight to the VA Disability Rating of
“Unemployability” as of November 19, 2009.

D.

The ALJ erred in finding that Plaintiff’s PTSD prior to his DLI was
not a “severe” impairment.

(Pl.’s Br., ECF No. 12.)
DISCUSSION
Upon review of Myers’s allegations of error, the court finds that the cumulative effect of
some of these allegations requires remand. Myers relies on the decision in Bird v. Commissioner
of Social Security, 699 F.3d 337 (4th Cir. 2012),2 in support of two of his arguments. Pertinent here,
in Bird, the United States Court of Appeals for the Fourth Circuit addressed for the first time the

2

The court notes that the ALJ did not have the benefit of the decision in Bird, as it was issued
on November 9, 2012, approximately two weeks after the ALJ’s decision on October 23, 2012.
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weight that the Social Security Administration (“SSA”) must afford to a Department of Veterans
Affairs (“VA”) disability rating. Specifically, the Bird Court held 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. In this case, the VA issued an eighty percent disability rating effective
November 19, 2009, which was approximately six weeks before Myers’s date last insured, based at
least in part on the same conditions for which Myers seeks disability benefits in this matter. (Tr.
158-59, 230-37.) The ALJ acknowledged this rating; however, in evaluating this evidence, the ALJ
stated as follows:
Those findings have been considered, along with all other evidence of record in this
case. The laws defining “disability” for veteran’s programs are based on a percentage
schedule for rating disabilities. That definition is not consistent with the definition
of “disability” in the Social Security Act, and the determinations of the Department
of Veterans Affairs are not binding on me in applying the law governing this claim.
(Tr. 34) (citing 20 C.F.R. § 404.1504). However, after the ALJ’s decision, the Bird Court observed
the following similarities between the two programs, stating that
both 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. . . .
. . . . The VA rating decision reached in Bird’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 Bird’s medical condition. Because the purpose and
evaluation methodology of both programs are closely related, a disability rating by

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one of the two agencies is highly relevant to the disability determination of the other
agency.
Bird, 699 F.3d at 343 (internal citations and quotation marks omitted). Thus, as in Bird, the ALJ
failed to give appropriate weight to the VA rating decision. See id. at 341 n.1 (noting that “[b]ecause
we conclude that the ALJ committed legal error by failing to consider properly all the record
evidence, as assessment of the weight of the evidence must be left to the ALJ on remand in the first
instance”).
The Bird Court also reiterated that “[m]edical evaluations made after a claimant’s insured
status has expired are not automatically barred from consideration and may be relevant to prove a
disability arising before the claimant’s DLI.” Bird, 699 F.3d at 340. Further, “retrospective
consideration of evidence is appropriate when the record is not so persuasive as to rule out any
linkage of the final condition of the claimant with his earlier symptoms.” Id. at 341 (internal
quotation marks and citation omitted). Moreover, “retrospective consideration of medical evidence
is especially appropriate when corroborated by lay evidence.” Id. at 342. Thus, the Commissioner
“must give retrospective consideration to medical evidence created after a claimant’s last insured
date when such evidence may be reflective of a possible earlier and progressive degeneration.” Id.
at 345 (internal quotation marks and citation omitted).
In this case, the record contains two mental health evaluations from the same examiner, Dr.
Phoebe McLeod, dated August 15, 2006 and May 20, 2010. (Tr. 249-52, 338-41.) Dr. McLeod
indicated in the August 15, 2006 evaluation that Myers was “exhibiting moderate to considerable
symptoms associated with his depression and then his PTSD.” (Tr. 251.) Dr. McLeod also opined
that

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[i]n terms of social adaptability and interactions with others, this appears to be
moderately impaired. In terms of his ability to maintain employment and perform job
duties in a reliable, flexible, and efficient manner this appears to be moderately
considerably impaired. Overall, I would estimate his level of disability to be in the
moderate to considerable range and the veteran appears capable of handling his own
funds. First, it appears that the veteran[] does have depression secondary to his ankle
pain. Second, it appears that his depression is as least likely as not related to his
service connected ankle pain. Also, some of his depression is likely related to his
posttraumatic stress disorder which is also a result of his traumas in the military.
(Tr. 251-52.)
Dr. McLeod indicated in the May 20, 2010 evaluation that Myers was “exhibiting
considerable symptoms associated with both major depressive disorder which appears to be related
primarily to his medical problems associated with his ankles, but also he has posttraumatic stress
disorder and he reported traumas to Dr. Taylor and some trauma-related symptoms back in 2007, but
it appears that currently the symptoms have developed into full PTSD.” (Tr. 340.) Dr. McLeod also
opined that
[i]n terms of social adaptability and interactions with others, this appears to be
considerably impaired. In terms of his ability to maintain employment and perform
job duties in a reliable, flexible and efficient manner this appears to be considerably
impaired. Overall, I would estimate his level of disability to be in the considerable
range, and the veteran appears capable of handling his own funds.
(Tr. 340-41.)
In evaluating the 2006 opinion, the ALJ indicated that Dr. McLeod concluded that Myers
“demonstrated an overall moderate impairment” (Tr. 33), which Myers argues distorts Dr. McLeod’s
actual statement that Myers was moderately considerably impaired. With regard to the 2010 opinion,
the ALJ only observed that it was after Myers’s date last insured, contained diagnoses of major
depressive disorder and posttraumatic stress disorder, and indicated a GAF score of 52. (Id.) The
ALJ does not specify what, if any, weight is afforded to either of these opinions. The Commissioner
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argues that the ALJ accounted for Dr. McLeod’s first opinion by limiting Myers to unskilled work
with limitations in task complexity and in social interaction.
The Commissioner further argues that the second opinion was not relevant to Myers’s claim
as it was dated five months after his date last insured. Contrary to the Commissioner’s arguments,
the court finds that on remand further consideration of these opinions is warranted, especially with
regard to the second opinion because like Bird, the evidence in the record appears to provide
sufficient linkage reflective of a possible earlier and progressive degeneration requiring retrospective
consideration of the second opinion, which found Myers was considerably impaired.
Finally, further consideration of the VA disability rating and Dr. McLeod’s opinions may
impact the entirety of the ALJ’s decision, including the ALJ’s analysis at Step Two of the sequential
evaluation and the ALJ’s analysis of Myers’s credibility. Thus, these issues may be presented on
remand if necessary. However, the court notes that, as argued by Myers, when the ALJ evaluated
Myers’s credibility, the ALJ does not appear to have considered evidence suggesting that Myers was
taking morphine and other narcotics prior to his date last insured for pain associated with his ankle,
or the possible related side effects from these medications. (See, e.g., Tr. 342-44.)

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ORDER
Based on the foregoing, it is hereby
ORDERED that the Commissioner’s decision be reversed pursuant to sentence four of 42
U.S.C. § 405(g) and that the case be remanded to the Commissioner for further administrative action
as set forth above.
IT IS SO ORDERED.

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
September 3, 2015
Columbia, South Carolina

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