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Hamm v. Berryhill

United States District Court, D. Maine

October 31, 2017

GEORGE HAMM, Plaintiff
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant

          REPORT AND RECOMMENDED DECISION

          John C. Nivison, U.S. Magistrate Judge.

         On Plaintiff George Hamm's application for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act, Defendant, the Social Security Administration Commissioner, found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action for judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court vacate the administrative decision and remand for further proceedings.

         The Administrative Findings

         The Commissioner's final decision is the October 15, 2015, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2.) The administrative record has been supplemented, by order of the Appeals Council, to include a Department of Veterans Affairs rating decision issued on October 27, 2015. (Notice of Appeals Council Action, ECF No. 9-2, R. 2.)

         The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920. The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting of mood disorder, anxiety disorder, and history of alcohol abuse. (Id. ¶¶ 3 - 4, R. 17 - 19.) The ALJ further found that despite his impairments, Plaintiff has no exertional limitation, can perform simple and moderately complex tasks, such as those found in semi-skilled work, and can tolerate occasional superficial contact with the public. (Id. ¶ 5, R. 19.) In the course of her review of the record, the ALJ considered a Department of Veterans Affairs determination that Plaintiff has a service-related, 70 percent disability rating, but concluded that the VA determination was not persuasive evidence that Plaintiff is disabled for purposes of social security. (Id., R. 22.) Based on her residual functional capacity findings and testimony from a vocational expert, the ALJ determined that Plaintiff is not disabled because he retains the capacity to perform work existing in substantial numbers in the national economy, including such representative occupations as hand packer, janitor, and office cleaner. (Id. ¶¶ 10 - 11, R. 23.)

         Standard of Review

         A court must affirm the administrative decision provided the correct legal standards were applied and provided the decision is supported by substantial evidence. This is so even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

         Discussion

         Plaintiff contends the ALJ erred because she “essentially ignored the medical evidence supporting the VA findings, ” specifically the “mental disorders examination report completed by Dr. Kimball.” (Statement of Errors at 3, ECF No. 15, referencing Ex. 6F, R. 436 - 42.) Plaintiff further argues the ALJ's residual functional capacity (RFC) assessment cannot be reconciled with the medical opinion evidence of record, including the opinions of the Disability Determination Services reviewing psychologists. (Id. at 4, 9 - 11.) In addition, Plaintiff argues that the VA rating decision presented to and considered by the Appeals Council should have prompted the Appeals Council to remand the matter for further administrative proceedings. (Id. at 5 - 7.)

         The initial Disability Determination Services determination relied on the findings of David Houston, Ph.D., to support certain mental residual functional capacity findings. The determination reflects that Dr. Houston considered VA records generated through December 4, 2013. (R. 62.) Similarly, the reconsideration decision relied on Thomas Knox, Ph.D., to support certain mental residual functional capacity findings. The decision reflects that the record contained, at that time, VA records generated through August 24, 2014. (R. 87.)

         As of August 24, 2014, the VA had not issued either of its rating decisions. The rating decisions are based primarily on VA progress notes found in the record at exhibit 6F, in particular the March 25, 2015, consultative examination report of Kerry Kimball, Ph.D., which report apparently in part informed the VA rating decisions. (R. 436.) Dr. Houston and Dr. Knox thus did not have the opportunity to review the VA ratings and the records upon which the ratings were based. A review of the more recent records and the VA disability rating decisions suggests that the more recent records and decisions are not simply cumulative of the records reviewed and relied upon by Drs. Houston and Knox.[1]

         In her decision, the ALJ discussed the VA decision dated April 8, 2015. (Rating Decision, Ex. 19E, ECF No. 9-6; see also Apr. 15, 2015, VA Letter to George Hamm, Ex. 5D, ECF No. 9-5.) The VA assigned a 70 percent disability rating to Plaintiff's symptoms of depression, anxiety, and mood disorder. The ALJ was not persuaded that the VA rating established disability for social security purposes because the VA service-related disability standards do not govern a social security disability determination. (ALJ Decision, R. 22.) The ALJ also noted that Plaintiff did not testify to some of the more serious symptoms he reported to the VA, including suicidal ideation. (R. 20 - 21.)

         After the ALJ hearing, Plaintiff received another rating decision from the VA, dated October 27, 2015. (ECF No. 15-1.)[2] In its report, the VA continued the 70 percent disability finding based on Plaintiff's psychological condition. (Id. at 3.) Plaintiff submitted the VA's determination to the Appeals Council, but the Appeals Council found that the evidence did not support a reconsideration of the ALJ's decision. (R. 2.) In part, the Appeals Council found that the VA ...


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