United States District Court, D. Maine
FAYELENE E. GENNESS-BILECKI, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
MEMORANDUM DECISION 
H. Rich III United States Magistrate Judge.
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge
supportably found the plaintiff capable of performing work
existing in significant numbers in the national economy. The
plaintiff complains that, in determining her mental residual
functional capacity (“RFC”), the administrative
law judge ignored Veterans Administration (“VA”)
records that included a favorable disability ratings
decision, a post-traumatic stress disorder
(“PTSD”) evaluation by Kirsten Milliken-Zumel,
Ph.D., and notes of treating therapist Katherine Russin,
L.C.S.W., and in determining her physical RFC, he erred in
evaluating the finding of agency examining consultant Robert
N. Phelps Jr., M.D., that she had a limited ability to stand
and walk. See Plaintiff's Statement of Errors
(“Statement of Errors”) (ECF No. 16-1) at 3-7.
She also seeks remand for consideration of evidence presented
for the first time to the Appeals Council, namely, a July 15,
2014, RFC opinion of treating physician David L. Camenga,
M.D. See id. at 7. I conclude that remand is
warranted because of the administrative law judge's
handling of the VA disability ratings decision and,
accordingly, vacate the commissioner's decision and
remand this case for further proceedings consistent herewith.
to the commissioner's sequential evaluation process, 20
C.F.R. §§ 404.1520, 416.920; Goodermote v.
Secretary of Health & Human Servs., 690 F.2d 5, 6
(1st Cir. 1982), the administrative law judge found, in
relevant part, that the plaintiff met the insured status
requirements of the Social Security Act through December 31,
2016, Finding 1, Record at 26; that she had severe
impairments of degenerative disc disease of the cervical
spine with sensory deficits, migraine headaches, bipolar
disorder, and PTSD, Finding 3, id. at 27; that she
retained the RFC to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b) except that
she could never climb ramps, ladders, or scaffolds, could
occasionally climb ramps and stairs,  kneel, crouch, balance, and
crawl, was further limited to only occasional overhead work
and frequent handling, fingering, and feeling, needed to
avoid unprotected heights and vibratory tools, and could
understand/remember simple instructions, accomplish simple
tasks on a consistent schedule to complete a
workday/workweek, interact with coworkers and supervisors but
not the general public, and adapt to occasional routine
changes in the workplace, Finding 5, id. at 28-29;
that, considering her age (46 years old, defined as a younger
individual, on her alleged disability onset date, February 4,
2012), education (at least high school), work experience
(transferability of skills immaterial), and RFC, there were
jobs existing in significant numbers in the national economy
that she could perform, Findings 7-10, id. at 32;
and that she, therefore, had not been disabled from her
alleged disability onset date through the date of the
decision, June 27, 2014, Finding 11, id. at 33. The
Appeals Council declined to review the decision, id.
at 1-4, making the decision the final determination of the
commissioner, 20 C.F.R. §§ 404.981, 416.1481;
Dupuis v. Secretary of Health & Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. §§ 405(g), 1383(c)(3);
Manso-Pizarro v. Secretary of Health & Human
Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words,
the determination must be supported by such relevant evidence
as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S.
389, 401 (1971); Rodriguez v. Secretary of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
administrative law judge reached Step 5 of the sequential
evaluation process, at which stage the burden of proof shifts
to the commissioner to show that a claimant can perform work
other than her past relevant work. 20 C.F.R. §§
404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The
record must contain substantial evidence in support of the
commissioner's findings regarding the plaintiff's RFC
to perform such other work. Rosado v. Secretary of Health
& Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
Basis for Remand: Handling of VA Disability Ratings
plaintiff was adjudged by the VA, by decision dated October
3, 2012, to be 100 percent disabled by service-connected
PTSD, 20 percent disabled by service-connected radiculopathy
of the right upper extremity secondary to degenerative disc
disease, 20 percent disabled by service-connected
radiculopathy of the left upper extremity secondary to
degenerative disc disease, 20 percent disabled for
service-connected degenerative disc disease, and 10 percent
disabled for service-connected gastroesophageal reflux
disease. See Record at 265-68. She was found
entitled to special monthly compensation for meeting the
criteria as “housebound.” Id. at 268.
entirety of the administrative law judge's discussion of
the VA disability ratings decision was as follows:
As mentioned above, the [plaintiff] is receiving 100 percent
service-related disability for PTSD. The undersigned notes
that 20 CFR 404.1504 and 416.904 specifically provide that a
decision by any other governmental agency about whether an
individual is disabled is based on its rules and not binding
upon the Social Security Administration.
Id. at 31 (citation omitted).
plaintiff observes, see Statement of Errors at 6-7,
in Flannery v. Barnhart, No. 06-37-B-W, 2006 WL
2827656 (D. Me. Sept. 29, 2006) (rec. dec.,
aff'd Oct. 20, 2006), this court noted that, in
Pinkham v. Barnhart, 94 Soc. Sec. Rep. Serv. 318,
321 (D. Me. 2004) (rec. dec., aff'd Apr. 5,
2004), it had “sided with all federal circuit courts of
appeals that had considered the issue in holding that a
determination of disability made by the Veterans'
Administration is entitled to some weight in determining a
claim for Social Security benefits[, ]”
Flannery, 2006 WL 2827656, at *2 (citation and
internal quotation marks omitted). It made clear that
“[a] failure to accord some weight to a VA disability
determination requires remand[, ]” and that “a
passing reference to another agency's disability finding
or a perfunctory rejection of it . . . will not
suffice.” Id. (citations and internal
quotation marks omitted).
brief and through counsel at oral argument, the plaintiff
contended that the administrative law judge's treatment
of her VA disability ratings decision transgressed these
standards, warranting remand. See, e.g., Statement
of Errors at 6-7. In her brief and/or through counsel at oral
argument, the commissioner rejoined that the administrative
law judge's discussion met
Pinkham/Flannery standards for
consideration/explication and that, to the extent
Pinkham and Flannery require that a certain
level of weight be accorded to a VA disability ratings
decision, they were superseded by Social Security Ruling
06-03p (“SSR 06-03”). See, e.g.,
Defendant's Opposition to Plaintiff's Statement of
Errors (“Opposition”) (ECF No. 18) at 4-7 &
support of the first point, the commissioner's counsel
contended that this court has held that discussions of VA
disability ratings decisions only slightly more detailed than
that provided here have passed muster, citing Smith v.
Colvin, No. 2:13-CV-00066-JAW, 2014 WL 220721 (D. Me.
Jan. 21, 2014), and Pierce v. Astrue, No.
1:10-cv-242-JAW, 2011 WL 2678919 (D. Me. July ...