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West v. Colvin

United States District Court, D. Maine

December 5, 2016

JAMES JETER WEST, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) 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 seeks remand on the bases that the administrative law judge erred in giving (i) no weight to a Veterans Administration (“VA”) disability ratings decision, (ii) little weight to the opinions of treating providers Paul H. Lipman, L.C.S.W., or Richard Possee, P.A., and undue weight to the opinion of agency nonexamining consultant Donald Trumbull, M.D., and (iii) little weight to an opinion of examining psychologist Robert D. Kahl, Ph.D. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 9) at 6-9. I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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, 2015, Finding 1, Record at 22; that he had severe impairments of degenerative disc disease of the cervical and lumbar spine, depression, anxiety disorder, opioid dependence, and cannabis dependence, Finding 3, id.; that he retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he should never climb ladders, ropes, or scaffolds, or crawl, could occasionally balance, could frequently climb ramps and stairs, stoop, kneel, and crouch, could understand, remember and carry out simple, repetitive instructions and moderately detailed ones but not complex instructions, and was able to persist at those levels of complexity for eight hours a day, five days a week, consistently, Finding 5, id. at 23; that, considering his age (58 years old, defined as an individual of advanced age, on his alleged disability onset date, February 29, 2012, and subsequently turning age 60, defined as an individual closely approaching retirement age), education (at least high school), work experience (transferable skills), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 28; and that he, therefore, had not been disabled from his alleged disability onset date through the date of the decision, January 30, 2015, Finding 11, id. at 29. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; 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); 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 his past relevant work. 20 C.F.R. § 404.1520(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. Handling of VA Disability Ratings Decision

         The administrative law judge issued the decision at issue after the Appeals Council vacated an earlier decision on the basis that she had not “discuss[ed] or evaluate[d] the [plaintiff's] disability rating from the [VA] as set forth in Social Security Ruling 06-3p.” Record at 124. The Appeals Council noted, “This evidence is relevant to the Administrative Law Judge's evaluation of the [plaintiff's] impairments and warrants consideration.” Id. The Appeals Council directed the administrative law judge, on remand, to “[f]urther consider all relevant and available evidence from the [VA], including the VA disability determination, and provide rationale explaining . . . how the evidence is considered[.]” Id.

         The Appeals Council evidently referred to the sole VA disability ratings decision of record (Exhibit 10E), dated June 27, 2012, which assessed a 60-percent disability rating for the plaintiff's military service-connected back condition (a Grade 1 anterior-listhesis of L4 on S1 with disc space narrowing), a 20-percent disability rating for his major depressive disorder, and an overall service- connected disability rating of 70 percent. See id. at 321-22. With respect to the plaintiff's back condition, the VA explained that it had “reviewed the evidence received and determined [that the plaintiff's] service-connected condition ha[d]n't increased in severity sufficiently to warrant a higher evaluation.” Id. at 321. It noted:

This condition was originally rated under the old VA rating schedule. If the new rating schedule was used a lesser evaluation would be warranted. VA law requires us to use the old schedule when it is to the benefit of the Veteran.

Id.

Although [the plaintiff's] symptoms meet the criteria for a 70 percent evaluation, the examiner opined that [his] major depressive disorder was not caused by [his] service connected back condition, only aggravated by it. Additionally, there is no evidence in [his] service treatment records indicating any mental conditions during military service. Whenever a non-service connected condition is aggravated by a service connected condition, the baseline of that condition and the amount of aggravation caused by the service connection condition must be determined. The VA examiner noted [the plaintiff's] baseline as moderate/severe and cited moderate aggravation. We used 50 percent for the baseline. Since [the plaintiff's] overall evaluation was 70 percent, that 50 percent was subtracted and a 20 percent evaluation was granted.

Id. at 322.

         Although the VA assessed the plaintiff with an overall, or combined, rating of 70 percent, it granted him “entitlement to the 100% rate effective March 1, 2012, because [he was] unable to work due to [his] service connected disability/disabilities[.]” Id. at 321. The VA explained: “The effective date is the day [he] became unable to obtain/maintain employment due to [his] service connected disabilities.” Id.

         The VA disability ratings decision states: “Please see the enclosures for more information regarding the evidence considered and the evaluation assigned.” Id. at 322. No enclosures are included with the three-page Exhibit 10E in the Record. See id. at 320-22. However, as the plaintiff's counsel observed at oral argument, there are two relevant VA Compensation and Pension (“C&P”) examinations of record, a Mental Health C&P dated March 19, 2012, by Kerry Kimball, Ph.D., and a General Medical C&P dated April 26, 2012, by physician's assistant Possee. See id. at 547-57, 895-910.

         Post-remand, the administrative law judge held a supplemental hearing, see id. at 36, and issued the instant decision, stating, in relevant part:

The undersigned was asked by the Appeals Council to consider the opinion of the [VA] about the [plaintiff's] disability. However, the [VA] records are more than 400 pages long. There is an opinion at Exhibit 10E that discusses the percentages of the [plaintiff's] VA award. It appears that 60% was based on [his] Grade 1 anterior-listhesis of L4 on S1 with disc space narrowing. However, there is no discussion of how this condition creates 60% disability. An additional 20% disability was added to account for possible worsening of [his] non service-connected depression related to his service-connected back pain. It appears that the condition alone automatically generates a percentage of disability rating. There is no discussion of the [plaintiff's] functional limitations related to this finding. The undersigned has used the physical examinations and radiographic and other reports from the extensive VA medical record in the discussion of the medical evidence above. The Disability Determination medical experts used the same medical evidence in forming their opinions of the [plaintiff's] functional abilities. Disability decisions by any other governmental agency, such as the VA, are based on that agency's rules and are not binding on SSA [the Social Security Administration]. However, disability decisions made by any other governmental agency are evidence that adjudicators must consider. When making a determination or decision, adjudicators should explain the consideration they give to evidence in the record of another agency's disability decision. . . . The undersigned has used the clinical findings and reports in the VA records in conjunction with the other medical evidence to arrive at a decision about the [plaintiff's] functional limitation and does not adopt the findings regarding the percentages of disability since there is no explanation as to how they were determined.

Id. at 26 (citations omitted).

         The plaintiff complains that the administrative law judge did not indicate that she gave any weight to the VA disability ratings decision, contravening this court's holding that administrative law judges must give “some weight” to such decisions, and did not address extensive VA examination reports and medical opinions of record that expressly state the reasons for the VA's determination. See Statement of Errors at 6 (citing Pierce v. Astrue, No. 1:10-cv-242-JAW, 2011 WL 2678919, at *3 (D. Me. July 7, 2011) (rec. dec., aff'd July 29, 2011)).

         He asserts that VA records relied on in reaching the disability ratings decision indicated that he had a depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbance of motivation and mood, difficulty adapting to stressful circumstances (including work or a work-like setting), inability to establish and maintain effective relationships, and suicidal ideation, causing “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” Id. at 4 (quoting Kimball report, Record at 551). He adds that the disability ratings decision relied on extensive examination reports indicating that, as a result of his degenerative disc disease of the cervical spine, he had greater limitations in sitting, standing, and walking than those assessed by the administrative law judge. See id.

         At oral argument, the plaintiff's counsel elaborated that, because the administrative law judge failed to consider the degree to which the VA disability ratings decision was supported by underlying records, particularly the Kimball and Possee reports, she misunderstood the decision's disability percentage ratings as well as the support found in those reports for limitations greater than those she assessed. He complained that she ignored the Kimball report altogether and argued that, while she did separately discuss the Possee report, she still failed to consider the extent to which that report supported the VA disability ratings decision. He added that her mishandling of the Possee report was not rendered harmless by her reliance on the opinion of Dr. Trumbull, who appeared not to have reviewed it.

         As I understand it, the plaintiff's argument is twofold: that the administrative law judge failed to give any weight to the VA disability ratings decision and that her analysis ...


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