Cummings v. Commissioner of Social Security Administration

Filing 19

OPINION AND ORDER adopting 14 Report and Recommendation, reversing and remanding the decision of the Commissioner for further administrative action pursuant to sentence four of § 405(g). Signed by Honorable Cameron McGowan Currie on 5/2/2017.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Christian L. Cummings,

Civil Action No. 8:16-cv-1111-CMC
Plaintiff,

vs.

OPINION AND ORDER

Nancy A. Berryhill,
Acting Commissioner of Social Security
Administration,
Defendant.
Through this action, Plaintiff seeks judicial review of the final decision of the
Commissioner of Social Security denying Plaintiff’s claim for Disability Insurance Benefits
(“DIB”). Plaintiff appealed pursuant to 42 U.S.C. § 405(g). The matter is currently before the
court for review of the Report and Recommendation (“Report”) of Magistrate Judge Jacquelyn D.
Austin, made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rules 73.02(b)(2)(a) and
83.VII.02, et seq., D.S.C.
The Report, filed March 22, 2017, recommends that the decision of the Commissioner be
reversed and remanded for administrative action pursuant to sentence four of § 405(g). ECF No.
14. On March 29, 2017, the Commissioner filed objections to the Report. ECF No. 16. On April
10, 2017, Plaintiff filed a response to the Commissioner’s objections. ECF No. 17. For the reasons
stated below, the court adopts the Report and reverses and remands the decision of the
Commissioner for further administrative action, pursuant to sentence four of § 405(g).
Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the

court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The court
reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one. Section 205(g) of the Act provides, “[t]he findings of the Secretary
as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g).
“Substantial evidence has been defined innumerable times as more than a scintilla, but less than a
preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard
precludes a do novo review of the factual circumstances that substitutes the court’s findings for
those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The court must uphold
the Commissioner’s decision as long as it was supported by substantial evidence and reached
through the application of the correct legal standard. Johnson v. Barnhart, 434 F.3d 650 (4th Cir.
2005). “From this it does not follow, however, that the findings of the administrative agency are
to be mechanically accepted. The statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative action.” Flack v. Cohen, 413 F.2d 278, 279 (4th
2

Cir. 1969). “[T]he courts must not abdicate their responsibility to give careful scrutiny to the
whole record to assure that there is a sound foundation for the [Commissioner’s] findings, and that
his conclusion is rational.” Vitek, 438 F.2d at 1157-58.
Background
Plaintiff applied for DIB on June 16, 2014, alleging disability as of September 20, 2012
due to affective disorder and post-traumatic stress disorder (“PTSD”).1 Plaintiff’s applications
were denied initially and upon reconsideration. On April 6, 2015, Administrative Law Judge
(“ALJ”) Barry Ryan denied Plaintiff’s claim. However, on May 21, 2015, the Appeals Council
vacated the hearing decision and remanded the case to an ALJ for further action and to consider
the opinion of Plaintiff’s treating psychologist Thompson. ALJ Jerry Peace held a de novo hearing
on October 6, 2015. The ALJ denied Plaintiff’s claims in a decision dated November 5, 2015,
finding that Plaintiff was not disabled within the meaning of the Act and had the ability to perform
work at all exertional levels but with non-exertional limitations. The Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision, making the determination of the ALJ the final
decision of the Commissioner. Plaintiff filed this action April 8, 2016. ECF No. 1.
Discussion
The Magistrate Judge recommends that the court reverse the Commissioner’s decision and
remand for further administrative proceedings because the ALJ failed to sufficiently discuss the

1

Plaintiff’s alleged onset date for his disability was later amended to November 20, 2013.

3

Bird decision2 and to fully consider Plaintiff’s VA disability rating.

ECF No. 14.

The

Commissioner objects to the Report, arguing the Magistrate Judge erred in stating “as a starting
point, the Administration must give substantial weight to a VA disability rating,” and contending
“the record clearly demonstrates that such a deviation from the general rule articulated by the
Fourth Circuit in Bird is appropriate.” ECF No. 16. Plaintiff supports the Report, arguing the ALJ
did not appropriately evaluate the VA rating in this case, and the record does not show a deviation
from the general Bird rule is proper.
The ALJ’s decision shows he considered the VA’s 100% disability rating, but assigned it
little weight. However, the ALJ did not discuss the Fourth Circuit standard for assigning weight
to a disability rating from the VA, as set forth in Bird, 699 F.3d at 343:
[I]n 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 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.
Instead, he relied on SSR 06-03p, 20 C.F.R. 404.1504, and 20 C.F.R. 416.904, noting these
authorities provide “a decision by another governmental agency about whether an individual is
disabled is based on its own rules and is not our decision about whether an individual is disabled.”

2

Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012) (“[T]he SSA must give
substantial weight to a VA disability rating . . .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.”).
4

ECF No. 7-2, ALJ Decision at 24 (Nov. 5, 2015). While this is correct, the use of this standard
regarding VA disability ratings does not take Fourth Circuit precedent in Bird into account.
The Commissioner argues Bird did not hold substantial weight accorded to a VA disability
rating must be a starting point for an ALJ’s consideration, and the little weight afforded by the
ALJ was appropriate in this case. While Bird may not have explicitly held substantial weight must
be given to a VA disability rating as a starting point, it is clear the Fourth Circuit requires an ALJ
to consider “a disability rating by one of the two agencies [as] highly relevant to the disability
determination of the other agency” and the ALJ “must give substantial weight to a VA disability
rating” unless the record “clearly demonstrates” a deviation is appropriate. In this case, the ALJ
deviated significantly from “substantial weight” to “little weight.” Further, he does not appear to
have considered the Bird standard when deviating to little weight. Therefore, it does not appear
the ALJ applied the correct legal standard.
Further, as the Magistrate Judge correctly found, the court is unable to determine whether
the ALJ’s deviation from assigning “substantial weight” to the VA disability rating to “little
weight” was supported by substantial evidence. The ALJ disagreed with the VA’s disability rating
because Plaintiff’s “subjective complaints [were] not consistent with [his] reported activities of
daily living or his reasons for not working, as discussed above.” Id. at 25. However, the discussion
of Plaintiff’s stated reasons for not working included a statement that Plaintiff “did not want to
work for someone else,” when Plaintiff actually stated “I really can’t work for someone else.” This
misstatement shows substantial evidence may not support the ALJ’s determination to accord
Plaintiff’s VA disability rating little weight.
5

Further, the ALJ cited no medical opinion to justify the deviation to little weight, and no
particulars regarding the activities of daily living that show Plaintiff is capable of working. While
the Commissioner argued Plaintiff’s level of daily activity is “extensive,” the ALJ did not explain
which activities would justify according little weight to a VA disability rating or how those would
outweigh the VA’s rating or opinion of Psychologist Thompson. Therefore, based on the ALJ’s
one paragraph discussion of the VA’s disability rating, the court is unable to determine whether
the deviation to little weight is supported by substantial evidence.
Conclusion
For the reasons set forth above, the court adopts the Report and Recommendation of the
Magistrate Judge and reverses and remands the decision of the Commissioner for further
administrative action pursuant to sentence four of § 405(g).
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
May 2, 2017

6