Bolduc v. Commissioner of Social Security Administration

Filing 26

ORDER RULING ON REPORT AND RECOMMENDATION: The Court respectfully rejects the recommendation of the Magistrate Judge. [ECF #21]. The action is remanded to the Commissioner to conduct an analysis consistent with this Order. The Commissioner's decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and the case is remanded to the Commissioner for further administrative action. Signed by Honorable R Bryan Harwell on 3/28/2017. (gnan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Jeffrey Alan Bolduc,
Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration,

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Civil Action No.: 0:15-cv-04721-RBH

ORDER

Defendant.
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Plaintiff Jeffrey Alan Bolduc (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g),
of a final decision of the Commissioner of the Social Security Administration (the “Commissioner”)
denying Plaintiff’s claim for disability insurance benefits (“DIB”) under Title XVI of the Social Security
Act (the “Act”). The matter is before the Court for review of the Report and Recommendation of United
States Magistrate Judge Paige J. Gossett, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02(B)(2) for the District of South Carolina. The Magistrate Judge recommends the Court affirm
the Commissioner’s decision. [ECF #21].
Factual Findings and Procedural History
The procedural timeline is adequately set forth by the Magistrate Judge in the Report and
Recommendation. [ECF #21, pp. 3-4]. With respect to the facts, Plaintiff applied for DIB in September
of 2012, alleging an onset date of May 17, 2011. He was fifty-two years old on his alleged disability
onset date and had past relevant work experience as a food service worker in the United States Navy,
a restaurant manager, a salesperson of automobile accessories, a food service manager, and a regional
sales manager in the food service industry. [ECF #13, pp. 3-4]. Plaintiff alleged disability due to
hepatitis C, muscle pain, arthritis, vertigo, neurological problems and nausea. [ECF #11-6 Ex. 2E].

Plaintiff testified that he served in the military from 1980 until 2001 in the Submarine Force and
was honorably discharged. [ECF #11-2, p. 32]. Plaintiff testified that he last worked as a food service
broker in May of 2011. [ECF #11-2, p. 32]. In August of 2011, Plaintiff began treatment for hepatitis
C, which he apparently had for years but was left untreated. [ECF #11-8, Ex. 2F]. Plaintiff informed
his doctor that he was considering applying for disability due to overwhelming fatigue, which his doctor
felt was “out of proportion” to his liver biopsy findings. [ECF #11-8, Ex. 2F]. In any event, by
September of 2011, Plaintiff did not have any viral load detected. [ECF #11-8, Ex. 2F]. During the
relevant time period, Plaintiff began treating with Dr. William Hall, who noted that Plaintiff reported
an array of symptoms after treatment began. Despite this fact, Dr. Hall documented benign findings and
routinely released Plaintiff from his care without any limitations. [ECF #11-11, Ex. 9F; ECF #12-1, Ex.
9F]. This pattern continued–Dr. Hall continued to note that Plaintiff’s complaints were “without a clear
etiology” and that he had no compelling diagnosis, despite the fact that Plaintiff alleged medication was
helping his symptoms. [ECF #11-11, Ex. 9F; ECF #12-1, Ex. 9F].
On August 22, 2012, Plaintiff saw Dr. Winter, a doctor he had seen for treatment of hepatitis
C. Plaintiff had a viral load of zero, though he reported he was not back to feeling 100%. [ECF #11-8,
Ex. 2F]. Records indicate Plaintiff was using tobacco and consuming three drinks a day. [ECF #11-8,
Ex. 2F]. A week later, Plaintiff presented to Dr. Hall, who again noted Plaintiff’s “spectrum of
unexplained symptoms,” and further noted in reviewing his consult notes that the examination revealed
no significant abnormalities. Plaintiff, meanwhile, testified to the fact that he experienced side effects
from his medical treatment including fatigue, flu-like symptoms, hemorrhoid issues, memory and
concentration problems, pain and muscle spasms. [ECF #11-2, pp.36-37].
At the hearing, a vocational expert (“VE”) was asked to list Plaintiff’s past relevant work, but
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the ALJ did not seek any response regarding any hypotheticals. [ECF #11-2, p. 49]. With respect to
activities of daily living, Plaintiff testified at the hearing that he had difficulty with personal care
activities, shopping, and cooking. [ECF #11-2, pp. 42-43]. He further testified he is unable to perform
activities such as chopping firewood and using a knife. Plaintiff testified that he can sit for more than
a half hour to an hour, and can lift eight pounds. [ECF #11-2, p. 45].
Plaintiff’s application was denied initially and upon reconsideration, so he requested a hearing.
Following an administrative hearing, Plaintiff’s application was denied in an order dated March 26,
2014. [ECF #21, p. 3]. The ALJ’s findings were as follows:
(1) The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
(2) The claimant engaged in substantial gainful activity after his
alleged disability onset date of May 17, 2011, and continued to do so
at least through the first quarter of 2013 (20 C.F.R. 404.1571 et seq.).
(3) In the alternative, the claimant has the following severe
impairment: hepatitis C (20 C.F.R. 404.1520(c)).
(4) In the alternative, the claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526).
(5) In the alternative, after careful consideration of the entire record,
I find that the claimant has the residual functional capacity to perform
the full range of medium work as defined in 20 C.F.R. 404.1567(c).
(6) In the alternative to a finding at step one of the five-step
sequential evaluation of disability, the claimant is capable of
performing past relevant work as a manager of food services
(Dictionary of Occupational Titles (DOT) 187.167-106, light work
with SVP of 7), sales person of automobile accessories (DOT
237.357-030, light work with SVP of 4), and sales representative of
food products (DOT 260.357-014, light work with SVP of 5). This
work does not require the performance of work-related activities
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precluded by the claimant’s residual functional capacity (20 C.F.R.
404.1565).
(7) The claimant has not been under a disability, as defined in the
Social Security Act, from May 17, 2011 through the date of this
decision (20 C.F.R. 404.1520(f)).
[ECF #11-2, pp. 13-18].
Plaintiff provided additional evidence and sought review by the Appeals Council, but the
Appeals Council denied his request for review, thereby making the ALJ’s decision the Commissioner’s
final administrative decision for purposes of judicial review. On November 23, 2015, Plaintiff filed his
Complaint in this Court. [ECF #1]. Both Plaintiff and Defendant filed briefs [ECF #13; ECF #14; ECF
#18], and the Magistrate Judge issued a Report and Recommendation on November 18, 2016,
recommending that the Commissioner’s decision be affirmed. [ECF #21, p. 18]. Plaintiff filed
objections on December 2, 2016. [ECF #22]. Defendant replied to these objections December 16, 2016.
[ECF # 23].
Standard of Review
I.

Judicial Review of the Commissioner’s Findings
The federal judiciary has a limited role in the administrative scheme established by the Act,

which provides the Commissioner’s findings “shall be conclusive” if they are “supported by substantial
evidence.” 42 U.S.C. § 405(g). “Substantial evidence has been defined innumerable times as more than
a scintilla, but less than preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
This statutorily mandated standard precludes a de novo review of the factual circumstances that
substitutes the Court’s findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157, 1157-58
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(4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court must uphold the
Commissioner’s factual findings “if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972) (stating that even if the Court
disagrees with the Commissioner’s decision, the Court must uphold the decision if substantial evidence
supports it). This standard of review does not require, however, mechanical acceptance of the
Commissioner’s findings. Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). The Court “must not
abdicate [its] responsibility to give careful scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner]’s findings, and that [her] conclusion is rational.” Vitek, 438 F.2d
at 1157-58.
II.

The Court’s Review of the Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s

recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a
de novo review of those portions of the Report and Recommendation (“R & R”) to which specific
objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for

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clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
Here, after reviewing the record, including the briefs filed by the parties, the Magistrate Judge
recommends affirming the decision of the Commissioner. Plaintiff raises four objections to these
findings: (1) The opinions of two treating physicians were improperly ignored; (2) It was error to find
that Mr. Bolduc engaged in substantial gainful activity after the alleged onset date: (3) Mr. Bolduc’s
subjective complaints were not properly analyzed under the requisite two-step test; and (4) It was
reversible error to find that Mr. Bolduc’s only severe limitation was hepatitis C. [ECF #22, pp. 1-6].
This Court will analyze the merit of each objection below.
Analysis
A. Opinions of Dr. Hall and Dr. Irwin1
Medical opinions are evaluated and weighed based on the following factors: (1) whether the
physician has examined the claimant; (2) the treatment relationship between the physician and the
claimant; the supportability of the physician’s opinion; (4) the consistency of the opinion with the
record; and (5) whether the physician is a specialist. 20 C.F.R. § 404.1527. Social Security Ruling 962p requires an ALJ give specific reasons for the weight given to a treating physician’s opinion. The
ALJ should give controlling weight to a treating physician’s opinion regarding the nature and severity
of a claimant’s impairments when it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence. 20 C.F.R. §§

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In Plaintiff’s objections, he sometimes refers to treating physician “Dr. Ingram.” This
Court notes that it appears this is an error, and he is actually referring to Dr. Irwin based on the
pleadings and evidence of record.

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404.1527(c)(2) and 416.927(c)(2); see also Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
Conversly, an ALJ may discount a treating physician’s opinion if it is unsupported or inconsistent with
other evidence. Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). Any other factors that support or
contradict the opinion should also be considered. 20 C.F.R. § 404.1527(c)(6). In the face of “persuasive
contrary evidence” the ALJ has the discretion to accord less than controlling weight to that opinion.
Mastro, 270 F.3d at 178. Finally, SSR 96-2p provides that an ALJ must give specific reasons for the
weight given a treating source’s medical opinion, including support from the evidence in the record, and
must also be sufficiently clear to reviewers the weight assigned and the reasons for that weight.
Plaintiff’s first objection is that the Commissioner erred as a matter of law in failing to
meaningfully evaluate the opinions of Dr. Hall and Dr. Ingram. with respect to Dr. Hall, Plaintiff points
out that Dr. Hall provided a statement that Plaintiff was “profoundly disabled,” that he could be
expected to miss in excess of two days of work each month, and that his symptoms would be expected
to cause distraction and result in failure to complete job tasks in excess of two hours. [ECF #12-2, Ex.
10F; ECF #12-3, Ex. 18F}. Plaintiff contends that the ALJ simply summarily rejected Dr. Hall’s
above-referenced opinions. However, this Court does not agree with Plaintiff’s contention. In fact, the
ALJ gives several reasons why he chose to discount Dr. Hall’s statement. First, he considers the fact
that despite Dr. Hall’s numerous evaluations noting that Plaintiff does not appear to have any real
issues, Dr. Hall relies upon Plaintiff’s self-reported fatigue and cognitive issues to determine Plaintiff’s
capacity for employment. Second, he further notes that Dr. Hall does not link this opinion to any
evidentiary support in his findings or comment on the fact that Plaintiff was responding well to
treatment. Third, at least one of the statements made by Dr. Hall came after he was presented with
“disability paperwork.” While the Plaintiff has pointed to isolated statements or form checkmarks to

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show error, this Court notes that the ALJ went beyond simply discounting Dr. Hall’s opinion. This
Court finds that the ALJ’s determination as to the opinion of Dr. Hall is supported by substantial
evidence.
Plaintiff also contends that the ALJ improperly weight the medical opinion of Dr. Jennifer Irwin,
a psychiatrist, only to the extent the ALJ did not give considerable weight to the portions of the opinion
that were in his favor. Plaintiff does not otherwise contend the ALJ’s analysis was improper. To the
contrary, the ALJ provides significant detail for his reasons for rejecting her opinion regarding
restrictions in the RFC. First, the ALJ noted that Dr. Irwin assessed Plaintiff once. In her notes, Dr.
Irwin found Plaintiff negative for depression, but that he suffered from a cognitive disorder, not
otherwise specified. In addition, she noted that Plaintiff used marijuana medicinally, and had a remote
history of alcohol abuse. Her mental status examination reveals that he had the ability to do simple and
repetitive tasks and some detailed and complex tasks. While he was moderately impaired in his ability
to interact with others, she opined that he was “minimally impaired” in his ability to maintain regular
attendance in the workplace. She further noted that Plaintiff had not difficulty sitting, standing or
walking, that he made good eye contact, that he was goal-oriented and displayed a logical thought
process, a full range of affect, and intact memory. After detailing these findings, the ALJ explained that
these findings by Dr. Irwin were afforded significant weight because it was consistent with the other
findings in the records as a whole. However, the ALJ adequately explained that he rejected Dr. Irwin’s
opinions of restrictions because they were inconsistent with her findings that he was only “minimally
impaired” and because her description of the cognitive disorder was vague and poorly explained. This
Court finds that the ALJ properly applied the relevant factors in rejecting this portion of Dr. Irwin’s
opinion, and further, that the ALJ gave specific reasons for the decision to discredit a portion of Dr.

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Irwin’s opinion, namely that it contradicted her treatment notes, which lined up with the other evidence
in the record, as well. This Court finds that in reviewing the ALJ’s analysis of the opinions of Dr. Hall
and Dr. Irwin, substantial evidence supports the ALJ’s findings for both. Therefore, this Court
overrules Plaintiff’s first objection.
B. Substantial Gainful Activity
The Social Security Administration has established a five-step sequential evaluation process for
determining whether an individual is disabled. 20 C.F.R. § 404.1520(a). The steps are followed in
order, and if at any step it is determinated that a claimant is not disabled, the evaluation process will not
continue. The ALJ in this case determined at step one that the claimant was engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). The ALJ based this determination on the fact that he believed
the records showed that Plaintiff engaged in substantial gainful activity after his alleged onset date of
May 17, 2011, and received earnings in the third and fourth quarter of 2011, throughout 2012, and in
the first quarter of 2013 which were in such amounts as to give rise to the presumption of substantial
gainful activity. [ECF #11-2, p. 14]. As support for this finding, the ALJ also states that Plaintiff’s
testimony at the hearing was that he last worked on May 11, 2013, and that he received his last pay
check from the food service contractor position in September of 2012. [ECF #11-2, pp. 12-13]. In his
brief, Plaintiff argues that the ALJ mischaracterizes his testimony, which was actually that he stopped
working in May of 2011, and that the ALJ incorrectly considers certain payments as wages. However,
the Magistrate Judge determined that the ALJ’s potentially inaccurate finding does not require remand
because the ALJ still went through the remainder of the sequential analysis and did not otherwise
consider Plaintiff’s alleged substantial gainful activity in the remainder of the analysis; thus any error,
if at all, is harmless.

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Plaintiff objects to the finding that this analysis is not cause for remand despite the fact that the
ALJ still engaged in the entirety of the five step analysis. Plaintiff’s argument is that the fact that the
ALJ’s may have erred in finding he had substantial gainful activity despite Plaintiff testifying otherwise
shows a substantial likelihood of prejudice to the Plaintiff. In other words, the ALJ’s determination,
contrary to Plaintiff’s own testimony of when he stopped working, implicitly suggests the ALJ does not
find Plaintiff credible, which is troubling in light of the fact that Plaintiff’s testimony appears to be
accurate. While the ALJ did not specifically rely on assertions made by Plaintiff regarding his work
history in his sequential analysis after step one, it is unclear to this Court whether this finding
constitutes “harmless error,” and if this likely prejudiced Plaintiff, specifically the ALJ’s analysis of
Plaintiff’s credibility. Accordingly, this Court cannot find that substantial evidence supports the ALJ’s
finding at step one and will remand this case for the ALJ to reconsider his step one analysis.
C. Improper Credibility Analysis Regarding Pain
Assessing a claimant’s credibility regarding pain involves a two-step process. Craig v. Chater,
76 F.3d 585, 594 (4th Cir. 1996) (citing 20 C.F.R. §§ 416.929(b) & 404.1529(b)). First, objective
medical evidence must show the existence of a medical impairment that “could reasonably be expected
to produce the actual pain, in the amount and degree, alleged by the claimant.” Id. (internal quotation
marks omitted). If the Commissioner determines the threshold step is satisfied, the Commissioner must
evaluate “the intensity and persistence of the claimant’s pain, and the extent to which it affects h[is]
ability to work.2 Id. at 595. The Commissioner’s evaluation must account for not only Plaintiff’s

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The regulations set forth a framework for evaluating symptoms and prescribe seven factors for analyzing
the claimant’s credibility. 20 C.F.R. § 404.1529(c)(3). These factors are (i) Your daily activities; (ii) The
location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and
aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or
have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or
have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve

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statements about his pain, but also for all available evidence, “including the claimant’s medical history,
medical signs, and laboratory findings . . . ; any objective medical evidence of pain . . . ; and any other
evidence relevant to the severity of the impairment, such as evidence of the claimant’s daily activities,
specific descriptions of the pain, and any medical treatment taken to alleviate it.” Id. (internal quotation
marks and citations omitted). The Commissioner may not disregard or discredit Plaintiff’s statements
about pain solely because they are not substantiated by objective medical evidence. Id. Once a claimant
meets the “threshold obligation of showing by objective medical evidence a condition reasonably likely
to cause the pain claimed, [the claimant is] entitled to rely exclusively on subjective evidence to prove
the second part of the test, i.e., that his pain is so continuous and/or so severe that it prevents him from
working a full eight hour day.” Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006). However,
This is not to say . . . objective medical evidence and other objective
evidence are not crucial to evaluating the intensity and persistence of
a claimant’s pain and the extent to which it impairs her ability to
work. They most certainly are. Although a claimant’s allegations
about her pain may not be discredited solely because they are not
substantiated by objective evidence of the pain itself or its severity,
they need not be accepted to the extent they are inconsistent with the
available evidence, including objective evidence of the underlying
impairment, and the extent to which that impairment can reasonably
be expected to cause the pain the claimant alleges she suffers . . . .

Craig, 76 F.3d at 595. Finally, under its scope of review, the Court cannot make credibility
determinations but may review the ALJ’s decision to determine whether substantial evidence supports
the ALJ’s credibility assessment. Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005). The ALJ’s
“decision must contain specific reasons for the finding on credibility, supported by the evidence in the

your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour,
sleeping on a board, etc.); and (vii) Other factors concerning your functional limitations and restrictions
due to pain or other symptoms.

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case record, and must be sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons for that
weight.” SSR 96-7p.
Here, the ALJ determined that Plaintiff’s medically determinable impairments could reasonably
be expected to cause his alleged symptoms; however, his statements regarding the intensity, persistence,
and limiting effects of the symptoms were not entirely credible based on the ALJ’s review of the record.
[ECF #11-2, p. 16]. The Magistrate Judge determined that the ALJ adequately summarized his reasons
for this finding. Plaintiff objects to a finding that the ALJ properly followed the two-step process
described above, and further asserts that the ALJ did not make a proper credibility finding. The Plaintiff
does not otherwise provide a specific argument in his objections, other than to cite to case law stating
that subjective evidence of pain may support a finding of disability when an underlying impairment is
capable of causing said pain. [ECF #22, p. 6]. In Plaintiff’s other briefs, it appears that his main
argument is that the ALJ did not properly engage in the two-step process. This Court finds that the ALJ
did in fact provide sufficient support for his determination regarding Plaintiff’s credibility. The ALJ
considered lay witness testimony of Plaintiff’s wife, he considered the medical records of psychiatrist
Dr. Irwin and Dr. Winter regarding the resolution of hepatitis C in Plaintiff, as well as other treating
physicians who saw Plaintiff. Further, as noted by Defendant in her brief, treating physician Dr. Hall
routinely released Plaintiff without any limitations, and Dr. Hall noted in his records that Plaintiff’s
complaints appeared to be “vague” and “unexplained.” The ALJ noted in his assessment that Dr. Hall’s
numerous evaluations were in conflict with his reliance upon Plaintiff’s subjective comments of fatigue
and cognitive slowness. [ECF #11-2, p. 18]. Accordingly, this Court finds that the ALJ’s credibility
determination regarding pain is supported by substantial evidence in that he analyzed credibility under

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the appropriate two-step process. This objection is overruled.
D. Severity of Impairments
Plaintiff’s final objection is that the ALJ improperly determined that Plaintiff’s only severe
impairment was his diagnosis of hepatitis C. At step two of the sequential evaluation process, an ALJ
must “consider the medical severity” of the claimant’s impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii).
At this step, the burden is on the claimant to show he has a severe impairment. See Bowen v. Yuckert,
482 U.S. 146, n. 5 (1987). Furthermore, a severe impairment is one that significantly limits a person’s
mental or physical ability to do “basic work activities.” 20 C.F.R. §§ 404.1520(c). In the Report and
Recommendation, the Magistrate Judge found that the ALJ’s determination that hepatitis C was
Plaintiff’s only severe impairment was supported by substantial evidence.
Plaintiff argues that his degenerative disc disease causes more than a minimal impact on how
he performs his work activity, therefore it should be considered a severe impairment. Further, Plaintiff
argues that a finding that his back pain is a “severe impairment” is distinguishable from the ALJ
considering the back in determining Plaintiff’s RFC. As pointed out by Plaintiff, the VA assigned
Plaintiff a 50% disability rating for his service connected to degenerative disc disease. Plaintiff relies
upon Bird v. Astrue, 699 F.3d 337 (4th Cir. 2012) to argue that the ALJ’s evaluation of Plaintiff’s
disability rating from the Department of Veterans Affairs fails to comply with Bird. In Bird, the
claimant had a 100% disability rating from the Department of Veterans Affairs (the “VA”), but the ALJ
in that case did not find this rating relevant in evaluating the claimant’s “pre-DLI condition.” 699 F.3d
at 339. The Fourth Circuit Court of Appeals held that in making a disability determination, the Social
Security Administration must give substantial weight to a VA disability rating. 699 F.3d at 343.
However, an ALJ may give less weight to a VA disability rating when the record before the ALJ reveals

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it appropriate to deviate from this finding. Id.
A review of the record reveals that medical notes reflect a 50% disability rating from the
military, and Plaintiff’s testimony is that he has a 50% disability rating based on issues related to his
joints and back and degenerative disc disease, among other ailments. [ECF #11-2, pp. 32-33].3 In his
decision, the ALJ acknowledged that Plaintiff had a 50% disability rating from the military related to
several ailments. [ECF #11-2, p. 16]. However, this Court notes that the ALJ did not sufficiently
explain or consider the VA’s disability rating assessment in determining whether the condition is a
severe impairment, and if so, its impact as to a combination of impairments. Furthermore, while the ALJ
did acknowledge Plaintiff’s disability rating in his analysis of the RFC, he succinctly states that he is
not bound by this other governmental agency’s finding, without explaining why he did not provide this
rating any deferential weight. [ECF #11-2, p. 16]. The VA’s rating regarding his back issues resulted
from an evaluation of the same condition that Plaintiff argues is a severe impairment in this case.
Therefore, because the ALJ failed to explain why this rating was not given substantial deference or
weight, or what degree of weight, this Court finds that it is unclear from this decision whether
substantial evidence supports the ALJ’s finding with respect to Plaintiff’s severe impairments in light
of his previous disability rating. This Court remands the decision to allow the ALJ to properly consider
the VA rating pursuant to Bird. Specifically, this Court notes that a determination as to whether
Plaintiff’s back condition constitutes a “severe” impairment, or one that would provide additional
limitations to his RFC, should also be considered in light of the fact that it may alter the ALJ’s analysis
regarding Plaintiff’s ability to perform his past relevant work.

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The ALJ’s opinion incorrectly states that claimant testified to a 60% disability rating.

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Conclusion
The Court has thoroughly reviewed the entire record as a whole, including the administrative
transcript, the briefs, the Magistrate Judge’s R & R, Plaintiff’s objections to the R & R, Defendant’s
response to Plaintiff’s objections, and the applicable law. For the foregoing reasons, the Court
respectfully rejects the recommendation of the Magistrate Judge. [ECF #21]. The action is remanded
to the Commissioner to conduct an analysis consistent with this Order. The Commissioner’s decision
is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and the case is remanded to the
Commissioner for further administrative action.
IT IS SO ORDERED.
Florence, South Carolina
March 28, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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