The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DENISE KAY TRIMBLE,
Plaintiff,
v. Case No. 6:19-cv-1074-Orl-JRK
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER1
I. Status
Denise Kay Trimble (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying her claim for disability
insurance benefits (“DIB”). Plaintiff’s alleged inability to work during the relevant time
period was the result of “depression,” “bipolar [disorder],” “pain [in the]
shoulder/neck/knees/feet,” “TFCC tear,” “degenerative arthritis,” “herniated discs,” and
“heart issues.” Transcript of Administrative Proceedings (Doc. No. 13; “Tr.” or
“administrative transcript”), filed September 6, 2019, at 164, 172-73 (capitalization
omitted). Plaintiff filed an application for DIB on November 24, 2015,2 alleging a disability
1 The parties consented to the exercise of jurisdiction by a United States Magistrate Judge.
See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 12), filed September
6, 2019; Reference Order (Doc. No. 15), entered September 20, 2019.
2 Although actually completed on November 24, 2015, see Tr. at 560, the protective filing date
of the DIB application is listed elsewhere in the administrative transcript as November 20, 2015,
see, e.g., Tr. at 164.
onset date of February 26, 2007. Tr. at 560-63. The application was denied initially, Tr.
at 164-70, 171, 180, 182-84, and upon reconsideration, Tr. at 172-78, 179, 181, 187-91.
On December 2, 2016, an Administrative Law Judge (“ALJ”) convened a hearing,
during which she heard from Plaintiff, who was represented by counsel, and a vocational
expert (“VE”). Tr. at 134-63. The hearing was continued so that the record could be
supplemented with additional medical evidence. Tr. at 162. On November 6, 2018, the
ALJ reconvened the hearing and received testimony from Plaintiff, who was represented
by counsel, and a medical expert. Tr. at 77-106. The ALJ issued a Decision on December
3, 2018, finding Plaintiff not disabled through the date Plaintiff was last insured for DIB. Tr.
at 15-28.
Thereafter, Plaintiff requested review of the Decision by the Appeals Council. Tr. at
559 (request for review), 695 (argument in support); see Tr. at 4-5 (Appeals Council exhibit
list and order). On April 10, 2019, the Appeals Council denied Plaintiff’s request for
review, Tr. at 1-3, thereby making the ALJ’s Decision the final decision of the
Commissioner. On June 11, 2019, Plaintiff commenced this action under 42 U.S.C.
§ 405(g) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the
Commissioner’s final decision.
On appeal, Plaintiff contends the ALJ erred by “failing to apply the correct legal
standards to the decision of the Department of Veteran Affairs [(‘VA’)] and ma[king]
findings not supported by substantial evidence.” Plaintiff’s Brief (Doc. No. 17; “Pl.’s Br.”),
filed November 8, 2019, at 1; see id. at 8-11. On January 7, 2020, Defendant filed a
Memorandum in Support of the Commissioner’s Decision (Doc. No. 18; “Def.’s Mem.”)
addressing Plaintiff’s contention. After a thorough review of the entire record and
consideration of the parties’ respective memoranda, the undersigned determines that the
Commissioner’s final decision is due to be affirmed.
II. The ALJ’s Decision
When determining whether an individual is disabled,3 an ALJ must follow the five-
step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”),
determining as appropriate whether the claimant (1) is currently employed or engaging in
substantial gainful activity; (2) has a severe impairment; (3) has an impairment or
combination of impairments that meets or medically equals one listed in the Regulations;
(4) can perform past relevant work; and (5) retains the ability to perform any work in the
national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step
four, and at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry through step four, where she
ended the inquiry based on her findings at that step. See Tr. at 17-28. At step one, the
ALJ determined that Plaintiff “did not engage in substantial gainful activity during the period
from her alleged onset date of February 26, 2007 through her date last insured of
September 30, 2011.” Tr. at 17 (emphasis and citation omitted). At step two, the ALJ
found that through the date last insured, Plaintiff “had the following medically determinable
impairments: degenerative change of the spine, right shoulder, ankles, knees, hands, feet;
3 “Disability” is defined in the Social Security Act as the “inability 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
radiculopathy involving the femoral nerve; bilateral patellar pain syndrome; history of left
wrist sprain; history of mandibular fracture; affective disorder; and history of substance
addiction disorder.” Tr. at 18 (emphasis and citation omitted). Although finding Plaintiff
had such medically determinable impairments, the ALJ further found, “Based on the limited
treatment record between the alleged onset date and the date last insured, there is little
evidence for finding a severe medically determinable impairment.” Tr. at 18. The ALJ
then proceeded to make alternative findings, assuming that all of the above-stated
impairments were severe through the date last insured. Tr. at 18.
At step three, the ALJ found that through the date last insured, Plaintiff “did not have
an impairment or combination of impairments that met or medically equaled the severity
of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 20
(emphasis and citation omitted). The ALJ determined that through the date last insured,
Plaintiff had the residual functional capacity (“RFC”) “to perform light work as defined in 20
[C.F.R. §] 404.1567(b).” Tr. at 20 (emphasis omitted). At step four, the ALJ found that
through the date last insured, Plaintiff “was capable of performing past relevant work as
an administrative clerk and customer service clerk.” Tr. at 27 (emphasis and
capitalization omitted). The ALJ concluded that Plaintiff “was not under a
disability . . . from February 26, 2007, through September 30, 2011, the date last insured.”
Tr. at 28 (emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. § 405(g). Although no deference is given to the ALJ’s conclusions of law, findings
of fact “are conclusive if . . . supported by ‘substantial evidence.’” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir.
1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a
preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met
when there is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record
is reviewed to determine whether “the decision reached is reasonable and supported by
substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (citation
omitted). The decision reached by the Commissioner must be affirmed if it is supported by
substantial evidence—even if the evidence preponderates against the Commissioner’s
findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per
curiam).
IV. Discussion
A. Parties’ Arguments
In Plaintiff’s sole argument on appeal, she contends the ALJ erred in evaluating a
100% disability rating assigned by the VA. Pl.’s Br. at 8-11. Plaintiff points out that the
ALJ mistakenly stated the disability rating was assigned effective December 1, 2013, when
in fact, it was effective in 2007. Id. at 8-9. Given Plaintiff’s alleged onset disability date
of February 26, 2007 and date last insured of September 30, 2011, Plaintiff argues this
mistake was “a significant factual error that impacted the [D]ecision in this case.” Id. at
10. Further, Plaintiff argues that although the ALJ listed as a reason for discounting the
VA disability rating that the SSA uses different criteria than the VA, the ALJ failed to
“explain how the VA’s program differed[.]” Id. In making this argument, Plaintiff relies on
Brown-Gaudet-Evans v. Comm’r of Soc. Sec., an unpublished decision by the United
States Court of Appeals for the Eleventh Circuit in which the Court reversed and remanded
an ALJ’s decision, stating that even though the VA and the SSA use different criteria for
disability determinations, “that does not mean that the ALJ can summarily ignore the VA’s
determination nor give it ‘little weight.’” 673 F. App’x 902, 904 (11th Cir. 2016).
Responding, Defendant argues the mistaken date “[was] obviously just a
scrivener’s error” when read in context. Def.’s Mem. at 12. Further, Defendant contends
“the ALJ gave a good reason, supported by substantial evidence, to discount Plaintiff’s
100 percent disability rating: Neither the rating decision itself nor any of the underlying VA
medical records from the relevant period indicate Plaintiff had any work-related functional
limitations resulting from her impairments.” Id. at 9-10 (citations omitted).
B. Law
The Regulation applicable to Plaintiff’s claim (and effective only until March 27,
2017) explains that “[a] decision by any governmental agency . . . about whether you are
disabled . . . is based on its rules” and is “not binding on [the SSA].” 20 C.F.R. §
404.1504.4 “[E]vidence of a disability decision by another governmental agency . . .
cannot be ignored.” Social Security Ruling 06-03P, 2006 WL 2329939, at *2. Because
another agency’s standards may be different than SSA standards, however, the other
4 The SSA has since amended this Regulation to state that for claims filed on or after March
27, 2017, a SSA ALJ would “not provide any analysis . . . about a decision made by another governmental
agency . . . about whether [a claimant is] disabled.” 20 C.F.R. § 404.1504 (2017). However, even under
the amended Regulation, an ALJ must “consider[] all of the supporting evidence underlying the other
governmental agency[’s] . . . decision.” Id.
agency’s disability determination may have limited relevance. Id. In any event, an ALJ
must “explain the consideration given to” a decision by another agency. Id.
During the pendency of this appeal, after the briefing was closed, the Eleventh
Circuit, applying the same version of the Regulation that applies here, decided in a
published opinion “what role another agency’s decision that a claimant is disabled plays
when an ALJ considers whether the claimant is disabled for Social Security purposes.”
Noble v. Comm’r of Soc. Sec., 963 F.3d 1317, 1324 (11th Cir. 2020). After resolving
seeming inconsistencies or tensions in prior precedent, the Noble Court concluded that
two questions should be answered in deciding whether a VA disability rating was properly
considered by a SSA ALJ: 1) “whether the ALJ’s decision shows that she considered the
other agency’s decision”; and 2) “whether substantial evidence in the record supports the
ALJ’s decision to depart from the other agency’s decision.” Id. at 1330 (citations omitted).
“If there is substantial evidence in the record, then the ALJ’s decision should be affirmed.”
Id. (citation omitted).
Ultimately, the Court in Noble answered both questions in the affirmative, finding
substantial evidence to support the ALJ’s finding that “the VA’s decision was inconsistent
with the ‘objective medical evidence’ in the record.” Id. The Court distinguished the
unpublished Brown-Gaudet-Evans case, upon which the plaintiff there relied, by noting it
“did not address the situation before” the Noble Court. Id. at 1331. In Brown-Gaudet-
Evans, the ALJ “gave only [the] single reason for rejecting the VA’s decision: that the VA
applied a different standard to determine whether the claimant was entitled to disability
benefits.” Id. In Noble, however, “the ALJ did not reject the other agency’s decision
simply because the VA applied a different standard to determine whether [the plaintiff] was
disabled.” Id. “Instead,” stated the Court, “the ALJ explained that the VA’s decision was
contradicted by more recent objective medical evidence in the record.” Id. Moreover,
the Court noted that Brown-Gaudet-Evans is unpublished and not binding. Id. at 1330,
1331.
C. Analysis
Here, as noted previously, the ALJ mistakenly stated in the Decision that “[e]ffective
December 1, 2013, the VA assigned a total combined disability rating of 100%.”5 Tr. at
24. In reality, the 100% disability rating by the VA was effective in 2007 (June 11, 2007
for most diagnoses; September 28, 2007 for one diagnosis). See Tr. at 586-87, 685-86.
The ALJ then accurately summarized all of the various VA diagnoses and their
corresponding disability ratings. Tr. at 24; see Tr. at 586-87, 685-86. The ALJ
continued, “Clinical findings are documented . . . for the VA rating but without noting
functional limitations” and the ALJ referred to “A QTC Medical Services examination on
September 28, 2007.” Tr. at 24. The ALJ proceeded to comprehensively summarize the
findings of the September 28, 2007 examination upon which the VA disability rating was
largely based. Tr. at 24-25; see Tr. at 586-95.
In the end, the ALJ declined to rely on the VA disability rating, finding that “[d]espite
the VA’s clinical findings, actual functional limitations are not indicated.” Tr. at 25. The
ALJ “[a]lso note[d] that VA impairments ratings, although considered, cannot be used as
a sole basis for finding a disability.” Tr. at 25. The ALJ explained that the SSA and VA
“programs, processes, and criteria for receiving benefits are different.” Tr. at 25. Namely,
5 It is likely that the December 1, 2013 date came from a VA notice to Plaintiff indicating
December 1, 2013 was “[t]he effective date of the last change to [Plaintiff’s] current award.” Tr. at 688.
the ALJ pointed out that a VA rating could be “temporary,” while benefits are only payable
by the SSA if an individual has “a severe impairment that is expected to last at least one
year or result in death.” Tr. at 25. Finally, although not in the portion of the Decision
discussing the VA rating, the ALJ comprehensively summarized the medical evidence of
record, which showed little treatment for physical impairments during the relevant time
period, and some treatment in 2010 and 2011 for mental and alcohol abuse issues. Tr.
at 21-23. The ALJ found that the medical evidence did not support the “loss of
functioning” that Plaintiff alleged “as of the date last insured.” Tr. at 21.
The ALJ did not commit reversible error in evaluating the VA disability rating. The
mistaken December 1, 2013 date of the rating was an error, but not a harmful one,
especially because the ALJ accurately recounted the September 28, 2007 date of the
examination upon which the VA’s disability rating was largely based.6 And, there is
nothing in the ALJ’s Decision to indicate she discounted the VA’s disability rating because
she mistakenly believed it to be outside the relevant time period. To the contrary, she
provided other reasons for discounting the rating that are supported by substantial
evidence. First, the ALJ accurately stated that the VA’s examination findings did not
include functional limitations.7 Second, the ALJ noted that the SSA and the VA have
different standards. This reason, in and of itself, may not be enough under Brown-
Gaudet-Evans, 673 F. App’x at 904, but it must be combined with the balance of the
Decision. Third, the ALJ made the ultimate finding that the medical evidence of record
6 At the December 2, 2016 hearing, the ALJ acknowledged the VA’s 100% disability rating
was assigned “some time in 2007.” Tr. at 144.
7 Plaintiff reported some functional limitations during the examination, but none were actually
assigned by the VA. See Tr. at 586-99.
did not support the loss of functioning alleged. See Noble, 963 F.3d at 1331. Plaintiff
does not specifically challenge this finding, and it is supported by substantial evidence.”
see Tr. at 696-966.
V. Conclusion
Based on the foregoing, it is
ORDERED:
1. The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g), AFFIRMING the Commissioner's final decision.
2. The Clerk is further directed to close the file.
DONE AND ORDERED in Jacksonville, Florida on August 17, 2020.
| JAMES R. KLINDT
nited States Magistrate Judge
kaw
Copies to:
Counsel of Record
Plaintiff points out that after evaluating the VA’s disability rating, the ALJ stated, “For cases
filed on or after March 27, 2017, [SSA] will no longer provide any written analysis about how we consider
this evidence because it is inherently neither valuable nor persuasive to us. We may provide written
analysis about how we consider the underlying evidence supporting that agency’s or entity’s decision that
we receive.” Tr. at 25-26. This language appears to be superfluous because Plaintiff's claim was not filed
after March 27, 2017. Nevertheless, for the reasons stated in this Opinion and Order, the ALJ’s Decision
adequately complied with the applicable Regulation and binding precedent in the Eleventh Circuit.
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