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Belanger v. Berryhill

United States District Court, D. Maine

March 2, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          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 (i) failed to evaluate or give weight to a Veterans Administration (“VA”) determination that she is unemployable and totally and permanently disabled, (ii) erred in evaluating the opinion of her treating therapist, Allyson Fish, L.C.S.W., and (iii) erred in evaluating her credibility. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 10) at 2-4. I conclude that remand is warranted based on the ALJ's handling of the VA disability ratings decision and, accordingly, vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not and do not reach the plaintiff's remaining points of error.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Sec'y 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 December 31, 2015, Finding 1, Record at 11; that she had severe impairments of left knee osteoarthritis, status post arthroscopy, and post-traumatic stress disorder (“PTSD”), Finding 3, id. at 11; that she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could stand/walk for two hours and sit for six hours in an eight-hour period, could never climb ladders, ropes, or scaffolds, could occasionally climb ramps and stairs, kneel, and crawl, could frequently stoop and crouch, could only occasionally work around dangerous machinery or at unprotected heights, should avoid walking on uneven surfaces, could not perform complicated or detailed tasks, could not interact with the public as part of her job duties, and was limited to occasional, superficial interaction with coworkers and supervisors, Finding 5, id. at 14; that, considering her age (41 years old, defined as a younger individual, on her alleged disability onset date, March 3, 2010), 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 22; and that she, therefore, had not been disabled from March 3, 2010, through the date of the decision, November 3, 2015, Finding 11, id. at 23. 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. Sec'y 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. Sec'y 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. Sec'y 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 her 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         In this district, “[a] failure to accord some weight to a VA disability determination requires remand[, ]” and “a passing reference to [such a determination] or a perfunctory rejection of it . . . will not suffice.” Flannery v. Barnhart, No. 06-37-B-W, 2006 WL 2827656 at *2 (D. Me. Sept. 29, 2006) (rec. dec., aff'd Oct. 20, 2006) (citation and internal quotation marks omitted). The plaintiff contends that the ALJ committed those very errors in this case, warranting remand. See Statement of Errors at 2. I agree.

         By decision dated February 26, 2014, the VA determined that, effective January 1, 2014, the plaintiff was 80 percent disabled by service-connected disabilities but that she would be paid at ¶ 100 percent rate because those disabilities rendered her unemployable. See Record at 138. That rating, in turn, appears to have been based on individual disability ratings of 70 percent for PTSD, 30 percent for a knee condition, 10 percent for limited flexion of the knee, and 10 percent for limited extension of the knee. See id. at 408.

         In summarizing the evidence of record, the ALJ mentioned that the plaintiff “was found 100% disabled and she receives monthly VA disability benefits.” Id. at 15 (footnote omitted). She elaborated, in a footnote:

On February 26, 2014, the [plaintiff] was determined 100% disabled; she was found “unemployable due to [her] service-connected disabilities.” However, the Social Security Administration makes determinations of disability according to its own law and regulations. Consequently, a determination of disability by the VA is not binding on this Administration (20 CFR 404.1504; see also [Social Security Ruling (“SSR”)] 96-5p).

Id. at 15 n.1 (citation omitted). This constituted the entirety of the ALJ's discussion of the VA disability ratings decision.

         As the plaintiff observes, see Statement of Errors at 2, that discussion is nearly identical to one in Genness-Bilecki v. Colvin, No. 1:15-cv-387-JHR, 2016 WL 4766229, at *2-5 (D. Me. Sept. 13, 2016), that this court deemed sufficiently deficient to warrant remand.

         In Genness-Bilecki, as here, the ALJ acknowledged that the VA had deemed the claimant disabled but added: “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.” Genness-Bilecki, 2016 WL 4766229, at *2 (citation and internal quotation marks omitted). As here, that observation comprised the entirety of the ALJ's discussion of the claimant's VA disability ratings decision. See id. This court held that the ALJ's “out of hand” dismissal of the VA decision “on the sole basis that the standards differ” warranted remand, as did the ALJ's failure to accord some weight to the decision. Id. at *3.

         The commissioner concedes that an ALJ must give some weight to a VA disability ratings decision but argues that in this case, as in the more recent case of West v. Colvin, No. 1:16-cv-00157-JAW, 2016 WL 7048694 (D. Me. Dec. 5, 2016) (rec. dec., aff'd Dec. 29, 2016), aff'd sub nom. West v. Berryhill, No. 17-1170, 2017 WL 6499834 (1st Cir. Dec. 11, 2017), remand is unwarranted because the ALJ can be discerned to have given the VA decision some weight by virtue of her reliance on the same VA records on ...

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