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Genness-Bilecki v. Colvin

United States District Court, D. Maine

September 13, 2016

FAYELENE E. GENNESS-BILECKI, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          John H. Rich III United States Magistrate Judge.

         This 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.

         Pursuant 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, [2] 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).

         The 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).

         The 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).

         I. Discussion

         A. Basis for Remand: Handling of VA Disability Ratings Decision

         The 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.

         The 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).

         As the 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).

         In her 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 & n.2.

         In 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 ...


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