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Scott D. v. Saul

United States District Court, D. Maine

July 24, 2019

SCOTT D., Plaintiff
ANDREW M. SAUL, Commissioner, Social Security Administration, Defendant


          John C. Nivison, U.S. Magistrate Judge

         On Plaintiff's application for disability insurance benefits under Title II 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 to obtain 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 the matter for further proceedings.

         The Administrative Findings

         The Commissioner's final decision is the March 28, 2018, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 7-2.)[1] 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 right shoulder degenerative joint disease, cervical spine degenerative disc disease, depressive disorder, and general anxiety disorder. (R. 19, 21.) The ALJ determined that Plaintiff's mental impairments result in moderate limitations in interacting with others, concentrating, persisting, or maintaining pace. (R. 22.) The ALJ also found Plaintiff has the residual functional capacity (RFC) to perform light work; climb, stoop, kneel, crouch, and crawl on a frequent but not constant basis; work overhead with his right arm on a frequent, but not constant basis; work with supervisors and coworkers, but never with the public; and adapt to simple changes in work routine. (R. 23.)

         The ALJ ultimately concluded that Plaintiff could not return to past relevant work, but could perform other substantial gainful activity, including specific jobs existing in significant numbers in the national economy. (R. 29-30.)

         Standard of Review

         A court must affirm the administrative decision provided the decision is based on the correct legal standards and is supported by substantial evidence, 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).


         Plaintiff argues the ALJ erred because she did not properly consider the Department of Veterans Affairs (VA) disability ratings when assessing Plaintiff's RFC. Plaintiff also contends the ALJ did not consider her step 3 “moderate” concentration, persistence, and pace finding when she made her RFC finding, and failed to consider or discuss material opinion evidence in the record. (Statement of Errors, ECF No. 9.)

         The VA assessed Plaintiff to have a disability rating for his right shoulder and depression. (R. 633 - 645.) VA rating decisions are entitled to “some weight.” Genness-Bilecki v. Colvin, No. 1:15-cv-387-JHR, 2016 WL 4766229, at *2 - 3 (D. Me. Sept. 13, 2016). In this case, after acknowledging that Plaintiff was in receipt of VA compensation, the ALJ's discussion of the VA rating consisted of the following:

[A] disability decision by another governmental agency is based upon that agency's rules and is neither dispositive nor binding upon me (emphasis added). While I am grateful for the claimant's military service, there are very different factors involved in this Administration's determination of disability, the finding of which is reserved to the Commissioner. (20 CFR §§ 404.1504 and 404.1512(b)(5)).
To wit, the VA expresses disability as a percentage of diminished earning capacity that varies with the severity of a veteran's medical condition, and applied to a hypothetical average person's ability to earn income. In contrast, this Agency does not assess degrees of disability, but uses the 5-step sequential process applied herein to find if a person cannot perform any past work or any other substantial gainful work in the national ...

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