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Black v. Berryhill

United States District Court, D. Maine

September 22, 2017

COLBY C. BLACK, Plaintiff
v.
NANCY A. BERRYHILL, 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 (“ALJ”) 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 ALJ erroneously attributed little weight to a United States Department of Veterans Affairs (“VA”) disability ratings decision, as well as the examinations on which it was based, and made a mental residual functional capacity (“RFC”) determination unsupported by substantial evidence. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 9) at 7-15. 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 ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through March 31, 2016, Finding 1, Record at 13; that, through his date last insured, he had severe impairments of a personality disorder/borderline personality disorder and a substance use disorder/marijuana dependence, Finding 3, id.; that, through his date last insured, he did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in Appendix 1 to Subpart P, 20 C.F.R. § 404 (the “Listings”), Finding 4, id. at 14; that, through his date last insured, he had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: on a sustained and competitive basis he could understand and remember simple instructions, use judgment in making simple work-related decisions, respond appropriately to supervisors, coworkers, and usual work situations not involving the public or requiring collaborative work, and adapt to changes in the ordinary work setting, Finding 5, id. at 16; that, through his date last insured, considering his age (29 years old, defined as a younger individual, on his date last insured), education (at least high school), work experience (unskilled), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 20-21; and that he, therefore, had not been disabled at any time from August 1, 2013, his alleged onset date of disability, through his date last insured, March 31, 2016, Finding 11, id. at 21.[2] 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 ALJ 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).

         The statement of errors also implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a).

         I. Discussion

         A. Handling of VA Disability Ratings Decision

         The plaintiff, a veteran who served in the Army between July 11, 2005, and July 11, 2008, received a VA disability ratings decision dated October 1, 2013, granting him entitlement to individual unemployability effective February 8, 2013. See Record at 698. The VA cited as evidence an earlier ratings decision dated March 23, 2013 (which is not of record) and VA medical facility treatment records for the period from January 24-28, 2010. See id. It noted:

VA has awarded you total disability compensation because your service-connected disability(ies) keep you from working full-time. Although we determined that you are currently unable to work, we would like to encourage you to apply for vocational rehabilitation benefits. VA's Vocational Rehabilitation and Education program has helped many veterans with disabilities obtain suitable and rewarding employment.

         Id. at 699. The record also contains a summary of benefits dated February 16, 2015, explaining that, although the plaintiff had a combined 80 percent service-connected disability, he was being paid at the 100 percent rate because he was unemployable due to his service-connected disabilities.

See id. at 193.

In the section of his decision addressing opinion evidence, the ALJ noted, in relevant part:
I considered the VA's disability rating decision; however, I attribute little weight to its conclusions, particularly that the [plaintiff] is unemployable. At the outset, it must be noted that the disability standard employed by the VA differs significantly from the standard used by the Social Security Administration. Moreover, the [plaintiff's] VA's disability rating decision dated October 1, 2013, provides additional services and opportunities for “even seriously disabled veterans . . . to capitalize on the skills [they] already have and gain new ones so that [they] can reenter the workforce at the level [their] disabilities permit.” In this respect, consistent with this decision, the [plaintiff] is not “unemployable.”

Id. at 19 (citations omitted). Earlier, in discussing the record evidence, the ALJ had also observed, in relevant part:

[D]espite the [plaintiff's] severe and “nonsevere” medically determinable mental impairments, and his disability rating from the [VA], the objective medical findings, course of treatment, and the [plaintiff's] reported level of daily activity is at least consistent with his ability to perform basic work-related activities within the above-residual functional capacity.
. . . In a disability rating dated February 16, 2015, the VA noted that the [plaintiff] is receiving 100% service connected disability benefits because his impairments render him unemployable. Nevertheless, as discussed in detail below, treatment records revealed that the [plaintiff] is working in some capacity through the VA's compensated work therapy (“CWT”) program.

Id. at 17 (citations omitted)

         The plaintiff first argues that the ALJ failed to provide a valid reason for assigning the VA's disability ratings decision little weight, warranting remand pursuant to Genness-Bilecki v. Colvin, No. 1:15-cv-387-JHR, 2016 WL 4766229 (D. Me. Sept. 13, 2016). See Statement of Errors at 7-8. In Genness-Bilecki, this court found reversible error when an ALJ dismissed a VA disability ratings decision “out of hand on the sole basis ...


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