May v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JEFFREY MAY,

Plaintiff,

v. Case No. 8:18-cv-2450-T-AEP

ANDREW M. SAUL,

Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability and

disability insurance benefits (“DIB”). As the Administrative Law Judge’s (“ALJ”) decision

was not based on substantial evidence and failed to employ proper legal standards, the

Commissioner’s decision is reversed and remanded.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability and DIB (Tr. 163-64). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 106-21,

152-46). Plaintiff then requested an administrative hearing (Tr. 149-50). Per Plaintiff’s request,

the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 84-105). Following the

hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Andrew M. Saul should be substituted for Acting

Commissioner Nancy A. Berryhill as the defendant in this matter. No further action needs to

be taken to continue this matter by reason of the last sentence of section 205(g) of the Social

denied Plaintiff’s claims for benefits (Tr. 122-41). Subsequently, Plaintiff requested review

from the Appeals Council, which the Appeals Council denied (Tr. 1-9). Plaintiff then timely

filed a complaint with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §

405(g).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1972, claimed disability beginning August 1, 2011 (Tr. 163).

Plaintiff obtained a high school education (Tr. 190). Plaintiff’s past relevant work experience

included work as a material handler and production assembler (Tr. 100, 190). Plaintiff alleged

disability due to major depressive disorder, headaches, tinnitus, vestibulopathy,

tympanomastoidectomy, hearing loss, back problems, and “diplexia” (Tr. 189).

In rendering the administrative decision, the ALJ concluded that Plaintiff last met the

insured status requirements on December 31, 2016 and had not engaged in substantial gainful

activity from August 1, 2011, the alleged onset date, through December 31, 2016, the date last

insured (Tr. 127). After conducting a hearing and reviewing the evidence of record, the ALJ

determined Plaintiff had the following severe impairments: degenerative disc disease,

vestibular disorder, dizziness, status-post tympanomastoidectomy, major depressive disorder,

post-traumatic stress disorder, anxiety disorder, and attention deficit hyperactivity disorder (Tr.

128). Notwithstanding the noted impairments, the ALJ determined Plaintiff did not have an

impairment or combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 128). The ALJ then concluded

that Plaintiff retained a residual functional capacity (“RFC”) to perform a reduced range of light

work as follows: could lift or carry 10 pounds frequently and up to 20 pounds occasionally;

could sit, stand, and walk 6 hours each in an 8-hour workday; could perform reaching in front

and laterally, as well as handling, fingering, and feeling on a frequent basis; limited to no more

than occasional pushing or pulling of overhead arm controls or overhead work; needed to avoid

climbing ladders or scaffolds and could not be around unprotected dangerous heights,

machinery, or vibrations; could understand, remember, and carry out simple instructions, make

simple work-related decisions, and respond appropriately to usual work situations and changes

in a simple, routine, and repetitive job; and could respond appropriately to coworkers,

supervisors, and the public on an occasional basis but could not deal directly with the public or

work as a team member constantly interacting with others (Tr. 131). In formulating Plaintiff’s

RFC, the ALJ considered Plaintiff’s subjective complaints and determined that, although the

evidence established the presence of underlying impairments that reasonably could be expected

to produce the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and

limiting effects of his symptoms were not entirely consistent with the medical evidence and

other evidence (Tr. 132).

Considering Plaintiff’s noted impairments and the assessment of a vocational expert

(“VE”), the ALJ determined Plaintiff could perform his past relevant work as a production

assembler (Tr. 136). Additionally, given Plaintiff’s background and RFC, the VE testified that

Plaintiff could perform other jobs existing in significant numbers in the national economy, such

as a shipping/receiving clerk, assembler/fabricator, and sorter/sampler/tester (Tr. 137).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the testimony of

the VE, the ALJ found Plaintiff not disabled (Tr. 138).

II.

To be entitled to benefits, a claimant must be disabled, meaning the claimant must be

unable “to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §

423(d)(1)(A). “[A] physical or mental impairment is an impairment that results from

anatomical, physiological, or psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. §

404.1520. If an individual is found disabled at any point in the sequential review, further

inquiry is unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must determine,

in sequence, the following: whether the claimant is currently engaged in substantial gainful

activity; whether the claimant has a severe impairment, i.e., one that significantly limits the

ability to perform work-related functions; whether the severe impairment meets or equals the

medical criteria of 20 C.F.R. Part 404, Subpart P, Appendix 1; and whether the claimant can

perform his or her past relevant work. If the claimant cannot perform the tasks required of his

or her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do

other work in the national economy in view of his or her age, education, and work experience.

20 C.F.R. § 404.1520(a). A claimant is entitled to benefits only if unable to perform other work.

Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 404.1520(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards. See 42

U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation marks

omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews the

Commissioner’s decision with deference to the factual findings, no such deference is given to

the legal conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th

Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence or

substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates

against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient

reasoning for determining that he or she has conducted the proper legal analysis, mandates

reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining whether

the findings of the Commissioner are supported by substantial evidence and whether the correct

legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002) (per curiam).

III.

Plaintiff argues that the ALJ erred by (1) failing to properly evaluate the decision from

the Department of Veterans Affairs (“VA”) and (2) failing to evaluate the medical opinions.

For the following reasons, the ALJ failed to apply the correct legal standards and the ALJ’s

decision is not supported by substantial evidence.

A. VA Decision

Plaintiff initially contends that the ALJ failed to properly evaluate the VA disability

rating. A decision by any other governmental agency about whether a claimant is disabled is

based upon that agency’s rules and is not the decision of the Social Security Administration

(“SSA”). 20 C.F.R. § 404.1504.2 Rather, the SSA makes a disability determination based upon

2 The SSA amended the regulation in 2017 (with an effective date of March 27, 2017) to

indicate that no analysis would be provided by the administration regarding decisions made

by any other agency regarding whether a claimant is disabled. See 20 C.F.R. § 404.1504. The

social security law, and, thus, a determination made by another agency that a claimant is

disabled does not bind the SSA. 20 C.F.R. § 404.1504. Though such decisions are not binding

on the ALJ, such determinations, including VA disability ratings, should be considered and

given great weight. Ostborg v. Comm’r of Soc. Sec., 610 F. App’x 907, 914 (11th Cir. 2015)

(“A VA rating, while not binding on the SSA, is evidence that should be considered and is

entitled to great weight.”) (citation and internal quotation marks omitted); Boyette v. Comm’r

of Soc. Sec., 605 F. App’x 777, 779 (11th Cir. 2015) (noting that VA disability ratings are not

binding on the ALJ but that such ratings should be considered and given great weight); Brady

v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984) (“Although the V.A.’s disability rating is not

binding on the Secretary of Health and Human Services, it is evidence that should be given

great weight.”) (citation and internal quotation marks omitted); Bloodsworth v. Heckler, 703

F.2d 1233, 1241 (11th Cir. 1983) (‘The findings of disability by another agency, although not

binding on the Secretary, are entitled to great weight.”) (citation omitted). In determining

whether a claimant is disabled, the ALJ should consider decisions by governmental agencies

about whether a claimant is disabled along with the other evidence of record. 20 C.F.R. §

404.1512(b)(1)(v).

An ALJ commits legal error a when they “[s]ummarily reject a VA disability rating

because it is non-binding in the SSA context and relies on different criteria.” Beshia v. Comm'r

of Soc. Sec., 328 F. Supp. 3d 1341, 1346–47 (M.D. Fla. 2018)(citing Boyette, 605 F. App’x at

779-80; Ostborg, 610 F. App’x 913-15; Adams v. Comm’r of Soc. Sec., 542 F. App’x 854, 856-

57 (11th Cir. 2013)). Further, an ALJ should not give little weight to the VA’s determination

for those same reasons. Brown-Gaudet-Evans v. Comm'r of Soc. Sec., 673 F. App'x 902, 904

was filed on March 25, 2015 and the new regulation applies only to claims filed on or after

(11th Cir. 2016). As determined in Ostborg, an ALJ appropriately evaluates a VA disability

rating on its merits when they provide “specific reasons for discounting the VA’s

determination” and comparing the “VA examiners’ opinions, VA primary care provider

opinions, and VA treatment records” with the other parts of the record. Ostborg, 610 F. App’x

at 914; Boyette, 605 F. App’x at 779. Notably, a VA rating of 100% should be more closely

scrutinized by the ALJ. See Brown-Gaudet-Evans v. Comm'r of Soc. Sec., 673 F. App'x 902,

904 (11th Cir. 2016) (quoting that “[a] VA rating of 100% disability should have been more

closely scrutinized by the ALJ.”) (citing Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir.

Unit A Mar. 25, 1981).

Here, the VA assigned Plaintiff a 100% combined service-connected disability rating

(Tr. 229- 234). The ALJ assigned no weight to Plaintiff’s VA rating, finding that it was not

performed by an acceptable medical source and failed to follow the rules and procedure of the

Social Security Administration. Specifically, the ALJ noted in the opinion that:

The undersigned has also considered the claimant’s rating decision and service

connected percentages noted throughout the record from the Department of Veteran’s

Affairs (VA). The claimant was granted individual employability effective January 26,

2012. However, there are no actual opinion from any acceptable medical source relative

to his rating. Furthermore, this rating was not done pursuant to the Social Security

Program rules and regulations and it is not binding on the undersigned (Social Security

Ruling 06-03p). Additionally, as with all opinions rendered as to a claimant’s status as

“disabled”, this issue is clearly reserved for the Commissioner (SSR 96-5p). As such,

this rating decision is afforded no weight.

(Tr. 135). The Commissioner’s primary contention in response to Plaintiff’s argument is that

the Appeals Council gave individualized reasons for discounting the VA decision finding

Plaintiff entitled to individual employability. However, the Appeals Council did nothing more

than reiterate that the ALJ gave no weight to the VA rating “as there are no opinions from a

medical source relative to the VA rating” (Tr. 4-5).

Again, while it is established that the assessment of the VA is different than that of the

SSA and the VA’s disability determination does not bind the Commissioner, the ALJ cannot

reject the rating or assign it little weight for that reason. Beshia, 328 F. Supp. 3d at 1346–47

(citing Boyette, 605 F. App’x at 779-80; Ostborg, 610 F. App’x 913-15; Adams, 542 F. App’x

at 856-57; Brown-Gaudet-Evans, 673 F. App'x at 904. Here, the ALJ and the Appeals Council

summarily rejected the VA’s rating disability determination because the disability

determination process was not done pursuant to Social Security Rules and was not supported

by a medical opinion (Tr. 135). The Court find’s such reasoning unavailing as it does not offer

any substantive basis for discounting Plaintiff’s 100% VA disability rating. Burch-Mack v.

Comm’r of Social Sec., No: 8:15-cv-1167-T-JSS 2016 WL 4087477 at *4 (M.D. Fla. 2016).

(finding the ALJ’s analysis did not constitute a meaningful review of the VA disability

determination even though the ALJ conducted specific factual analysis). Notably, the

conclusory reason cited by the ALJ and Appeals Council, regarding the lack of any medical

opinions in connection with the VA disability rating, is contradicted by the record. Here, the

record contains numerous treatment notes from the VA, which contain a diagnosis and a

conclusion about Plaintiff’s impairments. See Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,

1179 (providing that a doctor’s treatment notes that included a description of a claimant’s

symptoms, a diagnosis, and a judgment about the nature and severity of the claimant’s

impairments constituted “medical opinions”). Significantly, in addition to the VA treatment

notes, there are also disability benefit questionnaires completed by various doctors. For

example, Dr. Sara J. Cornell, PsyD, completed a Mental Disorders Disability Benefits

Questionnaire (Tr. 732-736), in which she identifies Plaintiff with “[o]ccupational and social

impairment with deficiencies in most areas, such as work, school, family relations, judgement,

thinking and/or mood” (Tr. 734). Further, on April 9, 2012, psychologist Thomas Collins

completed a disability benefits questionnaire for mental disorders (Tr. 265-278), in which he

opined that Plaintiff had occupational and social impairment with reduced reliability and

productivity (Tr. 270).

As such, substantial evidence does not support the ALJ’s decision since the ALJ’s

rejection of the VA disability rating, based upon a lack of medical opinions, is contradicted by

the record. Thus, the ALJ failed to adequately scrutinize Plaintiff’s 100% VA disability rating

by failing to conduct a thorough review of the record as required. See Brown-Gaudet-Evans,

673 F. App'x at 904. Therefore, this case should be remanded for proper consideration of

Plaintiff’s VA’s disability rating.

B. Medical Opinion

Plaintiff next argues that the ALJ erred by failing to properly consider the medical

opinion of Dr. Thomas Collins. However, in light of the above findings, the Court need not

address Plaintiff’s remaining claim of error. See Demench v. Sec’y of Dep’t of Health & Human

Servs., 913 F.2d 882, 884 (11th Cir. 1990) (declining to address plaintiff’s remaining arguments

due to conclusions reached in remanding the case); Jackson v. Bowen, 801 F.2d 1291, 1294 n.2

(11th Cir. 1986) (stating that where remand is required, it may be unnecessary to review other

issues raised). Given the above findings, the ALJ should reevaluate Dr. Collins’s opinion. As

such, the case should be reversed and remanded to the Commissioner for proper consideration

regarding only Plaintiff’s VA disability rating.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is REVERSED, and the matter is REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner for further administrative

proceedings consistent with this Order.

2. The Clerk is directed to enter final judgment in favor of Plaintiff and close the case.

DONE AND ORDERED in Tampa, Florida, on this 30th day of March, 2020.

J f-

PW] IY]

ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record