McCain v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRANDY MCCAIN,

Plaintiff,

v. Case No. 8:19-cv-2762-T-SPF

ANDREW M. SAUL,

Commissioner of the Social

Security Administration,

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claim for 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.

I. Procedural Background

Plaintiff filed an application for period of disability and DIB (Tr. 155-56). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 58,

71). Plaintiff then requested an administrative hearing (Tr. 86). Per Plaintiff’s request,

the ALJ held a hearing at which Plaintiff appeared and testified (Tr. 26-47). Following

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

denied Plaintiff’s claims for benefits (Tr. 12-19). Plaintiff requested review from the

Appeals Council, which the Appeals Council denied (Tr. 1-3). 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) and 1383(c)(3).

II. Factual Background and the ALJ’s Decision

Plaintiff was born on March 14, 1973 and was 45 years old on her administrative

hearing date (42 on her alleged onset date) (Tr. 27, 155). Plaintiff claimed disability

beginning January 13, 2016, due to anxiety, depression, bipolar disorder, and bulimia (Tr.

201). She graduated high school and earned some college credits at Delaware Valley

College and the College of Southern Maryland (Tr. 314). She also attended trade school

and got her welding certificate. After working as a hairdresser out of high school, Plaintiff

enlisted in the Navy and was active duty from 1993-1998, with an MOS as a turbine

electrical systems technician (Id.). In 1998, Plaintiff left active duty and joined the Navy

Reserve until 2002. She received an honorable discharge as an E3 after she had her second

child (she served long enough to make E4, but her obesity disqualified her) (Id.).

Since leaving the Navy in 2002, Plaintiff’s experience in the private sector includes

work as an avionics technician (repairing ground support equipment transported on

aircraft carriers), a heavy equipment repairperson (repairing and welding manufacturing

equipment, hydraulic presses, and tractors), a test technician (building and testing

commercial and military electrical converters), and an electronic parts inspector (Tr. 30-

32). She testified she had trouble getting along with people at these jobs and “made a lot

of mistakes. I was unable to concentrate.” (Tr. 34) She elaborated: “I couldn’t keep up

with the work load. I did not have enough breaks.” (Id.). Plaintiff was let go in January

2016 from her job as an avionics technician due to poor performance and personality

changes. Her supervisors told her she was distant and distracted and could not complete

her work (Tr. 30).

Plaintiff’s first marriage ended soon after her 2002 discharge from the military (see

Tr. 315). She eventually remarried in 2014 and moved with her second husband from

Alabama to Florida (Id.). Plaintiff received medical treatment, including mental health

services for anxiety, depression, and bulimia, at the VA in Bay Pines. She testified her

anxiety symptoms include “tight chest, irritability, not knowing what to do with myself,

just unable to function to take care of things, you know, like I said, I don’t get along with

people.” (Tr. 35). Some days she feels so anxious “I can’t even do my housework or take

care of my pets.” (Tr. 36). She starts tasks she forgets to finish (Id.). She goes to the gym

near her house regularly and drives her car two or three days a week to run errands or go

to therapy appointments.

In rendering his October 11, 2018 administrative decision, the ALJ concluded that

Plaintiff met the insured status requirements through December 31, 2021 (her date last

insured, or “DLI,” for DIB purposes) and had not engaged in substantial gainful activity

since January 13, 2016, her alleged onset date (Tr. 14). After conducting a hearing on

July 26, 2018, and reviewing the evidence of record, the ALJ determined Plaintiff had the

severe impairment of anxiety (Id.). Notwithstanding this impairment, 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.

15). The ALJ then concluded that Plaintiff retained the residual functional capacity

(“RFC”) to perform “a full range of work at all exertional levels but with the following

nonexertional limitations: the claimant is limited to having occasional contact with

supervisors, coworkers, and the general public.” (Tr. 16). 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 her symptoms were not entirely consistent with the

medical evidence and other evidence (Tr. 17).

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

(“VE”), the ALJ determined Plaintiff could perform her past relevant work as an electrical

inspector, a circuit board assembler, and a machine mechanic (Tr. 18). The ALJ found

Plaintiff not disabled (Tr. 19).

III. Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she 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), 1382c(a)(3)(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), 1382c(a)(3)(D).

The Social Security Administration, 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: 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), 1383(c)(3). 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) (citations

omitted).

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).

IV. Analysis

Plaintiff argues the ALJ did not closely scrutinize the VA’s decision that Plaintiff

is 70% disabled,1 as required by the regulations and case law in effect when she filed her

claim (Doc. 18 at 11-14). The Commissioner retorts that the ALJ considered Plaintiff’s

VA disability rating and properly discounted it (Id. at 14-23). The undersigned agrees

with Plaintiff: the ALJ’s consideration of the VA’s disability determination is not

supported by substantial evidence.

1 Although Plaintiff’s combined service-connected disability rating was 70%, the VA

considered her 100% unemployable and paid her at that rate (Tr. 145). The ALJ

acknowledged this: “The Department of Veterans Affairs paid the claimant at the 100

percent rate because they considered her ‘unemployable’ due to service connected

disabilities.” (Tr. 18).

As the ALJ in this case noted, the VA’s guidelines pertaining to disability

determinations vary from the SSA’s sequential analysis, and the VA’s assessment is not

binding on the Commissioner. See 20 C.F.R. § 404.1504.1 But the ALJ omits that, in

August 2016 when Plaintiff filed her claim, Social Security regulations, Social Security

Ruling (SSR) 06-3p, and Eleventh Circuit precedent instructed the ALJ to assign “great

weight” to the VA’s disability rating. See 20 C.F.R. § 404.1504; SSR 06-3p (“the

adjudicator should explain the consideration given to [a disability decision by other

governmental agencies] in the note of decision for hearing cases”); Falcon v. Heckler, 732

F.2d 827, 831 (11th Cir. 1984) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1241 (11th

Cir. 1983)) (holding that “[t]he findings of disability by another agency, although not

binding on the [Commissioner] are entitled to 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 omitted).

1 The SSA has amended this regulation and rescinded SSR 06-03p for claims filed after March

27, 2017 (Plaintiff filed her claim on August 22, 2016). The new regulation provides that the

SSA will not provide any analysis of a decision made by any other governmental agency or a

non-governmental entity about whether a claimant is disabled, blind, employable, or entitled

to any benefits. See 20 C.F.R. § 404.1504; Revisions to Rules Regarding Evaluation of

Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017); Rescission of Social Security Rulings

96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15263 (Mar. 27, 2017). In rescinding SSR 06-03p, the

SSA noted that for claims filed on or after March 27, 2017, adjudicators will not explain how

they weighed disability decisions from other governmental agencies and non-governmental

entities, because this evidence is neither valuable nor persuasive. 82 Fed. Reg. 15263. The

undersigned analyzes Plaintiff's claims pursuant to the earlier regulation. In any event, the

Court is bound by Eleventh Circuit precedent even in the face of new regulations. See Miller

v. Comm’r of Soc. Sec., 246 F. App’x 660, 661-62 (11th Cir. 2007) (Eleventh Circuit precedent

that a VE’s testimony trumps an inconsistent DOT provision prevails over a later-published

social security ruling to the contrary); footnote 2, infra.

“Great weight” does not mean controlling, but “the ALJ must seriously consider and

closely scrutinize the VA’s disability determination and must give specific reasons if the

ALJ discounts that determination.” Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F.

App’x 902, 904 (11th Cir. 2016).

An ALJ’s reference to and discussion of medical records from the VA does not

substitute for consideration of the VA’s disability decision itself. See Williams v. Barnhart,

180 F. App’x 902 (11th Cir. 2006). Before 20 C.F.R. § 404.1504 (and its counterpart for

SSI purposes, 20 C.F.R. § 416.904) was amended, the clear trend in case law from this

district was to reverse and remand when the ALJ has not adequately considered the VA’s

disability rating. Put another way, “[t]he Eleventh Circuit’s requirement of ‘great weight,’

‘close scrutiny,’ and ‘serious consideration’ is not met by a gratuitous passing reference.”

Bruton v. Comm’r of Soc. Sec., No. 6:16-cv-1209-Orl-37DCI, 2017 WL 4174314, at *2 (M.D.

Fla. Sept. 21, 2017). Instead, the ALJ must specifically address the merits of the VA’s

disability rating. See Williams, 180 F. App’x 902 (“While we recognize that the ALJ’s

prior decision addressed at some length [the claimant’s] VA medical evidence,

nonetheless, in its decision the ALJ should specifically also consider and address the VA’s

Rating Decision itself.”).

In certain clear cases courts have found that an ALJ’s decision implicitly complies

with the requirement to place great weight on the VA’s decision if it is obvious the ALJ

closely scrutinized it. In Boyette v. Commissioner of Social Security, 605 F. App’x 777, 778-

79 (11th Cir. 2015), the Eleventh Circuit upheld an ALJ’s decision that did not assign

express weight to the VA’s disability rating, because the ALJ “considered and assigned

weight to the VA examiners’ opinions, VA primary care provider opinions, and VA

treatment records.” And in Adams v. Commissioner of Social Security, 542 F. App’x 854, 856-

57 (11th Cir. 2013), the court found that an ALJ who did not expressly assign “great

weight” to the VA’s rating nonetheless “seriously considered it in making his own

determination that Adams was not disabled.” See also Kemp v. Astrue, 308 F. App’x 423,

426 (11th Cir. 2009) (providing that an ALJ’s finding regarding a VA’s disability rating

may be implicit).

In sum, a court may uphold an ALJ’s decision that closely scrutinizes yet implicitly

weighs a VA disability rating or remand an ALJ’s decision that examines the VA’s medical

records yet makes only a passing reference to the VA’s disability rating. This results in

case-by-case determinations that can be difficult to reconcile (which may have motivated

the SSA to amend its regulations). Against this legal landscape, the undersigned agrees

with Plaintiff that the ALJ did not abide either the Eleventh Circuit requirement that he

assign “great weight” to the VA disability decision or SSR 06-3p (applicable at the time of

his decision).2

The ALJ condensed hundreds of pages detailing Plaintiff’s mental health treatment

at the VA (all of Plaintiff’s treatment occurred at the VA) into a few paragraphs of mention

2 Social Security Rulings do not have the force and effect of the law or regulations but are to

be relied upon as precedents in determining other cases where the facts are basically the same.

Heckler v. Edwards, 465 U.S. 870, 874 n. 3 (1984); see also Dickson v. Comm’r of Soc. Sec.,

No. 5:13-cv-48-Oc-DNF, 2014 WL 582885, *4 (M.D. Fla. Feb. 13, 2014) (quoting Klawinski

v. Comm’r of Soc. Sec., 391 F. App’x 772, 775 (11th Cir. 2010)) (“Social Security Rulings are

agency rulings published under the Commissioner’s authority and are binding on all

components of the Administration. Even though the rulings are not binding on us, we should

nonetheless accord the rulings great respect and deference ...”).

in his eight-page opinion (Tr. 17). Then, in one paragraph, the ALJ acknowledged

Plaintiff’s 70% VA disability rating and that she receives benefits “at the 100 percent rate”

because the VA considers her unemployable (Tr. 18). The ALJ stated:

However, I remind the reader that the VA uses different disability standards

than SSA. Moreover, a disability determination by another agency or private

employer is not determinative of the issue of whether the claimant is disabled

under the Act because that agency’s or employer’s determination is based on

its rules. I must make a disability or blindness determination based on social

security law. Therefore, a determination made by another agency that the

claimant is disabled or blind is not binding on the Social Security

Administration (20 CFR 404.15[0]4 and 416.904 and SSR 06-03p). I assign the

opinion little weight.

(Id.). Although true, these statements do not show the ALJ placed “great weight” on

Plaintiff’s 70% VA disability rating. To the contrary, this brief explanation of the ALJ’s

decision to discount Plaintiff’s VA disability rating is superficial and inadequate.

The records on which the VA’s disability rating is based begin in August 2015,

when Plaintiff sought treatment for her anxiety and bulimia from psychologist Debra

Gleason, Ph.D. and psychiatrist David Harris, D.O. at the Palm Harbor VA Clinic (Tr.

313-20). She recounted her attempt to commit suicide years earlier by overdosing on pills,

when her first marriage was unraveling (Tr. 318). According to Plaintiff, leading up to

that incident, she was not speaking and was cutting herself (Tr. 315). She was diagnosed

as bipolar with borderline personality disorder and was in and out of mental health wards

for two to three months. Since then, Plaintiff had been binge eating and purging as a way

of coping with stress (Id.). In August 2015, she reported using laxatives and diuretics after

overeating to control her weight, and Dr. Harris diagnosed her with anxiety (Tr. 318).

Plaintiff felt out of control and hopeless.

A psychological assessment and questionnaire completed by Kelly Gorman,

Psy.D. and psychiatrist Gayani Leonard, M.D. of the Bay Pines VA Healthcare System

in August 2016 confirmed Plaintiff’s diagnosis of generalized anxiety disorder (Tr. 393-

410). She reported poor motivation, depressed mood, isolation, and poor sleep (Tr. 402).

She obsessively exercised (sometimes up to three hours per day) to counter her binge

eating (Tr. 399). She was still taking laxatives three to four days per week to lose weight

(Tr. 400). She was fired from her job in January 2016 due to “poor performance.” (Tr.

396). Plaintiff admitted to suicidal thoughts but said she “gets through it” after a while

and did not have a specific plan to commit suicide (Tr. 407). During anxiety attacks, her

chest tightened, her skin crawled, it was hard to breathe, and she did not know what to do

with herself (Tr. 405-06).

With the help of weekly therapy, both one-on-one with Vicki Tangney, LCSW,

and in a group with Saarah Kison, Ph.D., Plaintiff learned coping mechanisms. For

example, amid a spike in her anxiety level in mid- to late 2016, to deal with her symptoms

she started painting and training her dog (Tr. 552, 559). By October 2016, psychiatrist

Robert Wilkins, M.D. noted he had stabilized Plaintiff’s symptoms with increased doses

of Lexapro, Topamax, hydroxyzine, and Ambien (Tr. 552). But in December 2016,

despite “doing good work” in therapy and Plaintiff characterizing her own symptoms as

mild, she was crying a lot, she stayed in bed all day over the holidays, and she was having

suicidal thoughts (Tr. 505, 510).

By February 2017, Plaintiff was in “acute distress.” (Tr. 872). Her treatment

provider noted, “[s]he frequently has suicidal thoughts, but now she is intent on harming

herself.” (Id.). Plaintiff told the admitting nurse at the VA hospital, “I took 4-5 Ambien

yesterday so I didn’t have to deal with my husband[,]” and “I’m always thinking of suicide

but I’m feeling more like doing it. I’m thinking of taking a whole bottle of all my pills if I

was going to attempt to kill myself. . . . I haven’t been able to rest at all. I drove myself

here. I just know I need help right now.” (Id.) She stayed in the hospital for three days

until she felt stabilized on her medication and was discharged home.

After this hospital stay, Plaintiff’s psychiatrist changed from Dr. Wilkins to Lia

Nardone, M.D., and Plaintiff continued attending one-on-one and group therapy. In May

2017, Dr. Nardone assessed Plaintiff with bipolar disorder, borderline personality

disorder, generalized anxiety disorder, and bulimia (Tr. 1053). In June 2018, Dr. Nardone

completed a medical source statement at Plaintiff’s counsel’s request, opining that in an

eight-hour work day, Plaintiff will be off-task due to psychiatric symptoms more than 15%

of the time, she will need to take unscheduled breaks, and she will be absent from work

more than two days per month (Tr. 837). Regarding Plaintiff’s ability to work full time,

Dr. Nardone wrote: “[Plaintiff is] unable to tolerate FT work-related stressors due to high

risk of decompensation & interpersonal diff[erences] interfering [with] her ability to

perform at work or attend regularly.” (Id.)

Considering this treatment history, the ALJ’s explanation that he assigned little

weight to the VA’s disability rating because the VA uses different disability standards than

the SSA is not the “close scrutiny” and “serious consideration” the Eleventh Circuit

requires. Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984) (per curiam); Brown-Gaudet-

Evans, 673 F. App’x at 904; Beshia v. Comm’r of Soc. Sec., 328 F.Supp.3d 1341, 1347 (M.D.

Fla. 2018) (“Summarily rejecting a VA disability rating because it is non-binding in the

SSA context and relies on different criteria constitutes legal error.”). The ALJ discounted

Dr. Nardone’s opinion as “inconsistent with the findings from mental status

examinations” and summarized Plaintiff’s psychiatric treatment at the VA by

emphasizing details like she had “maintained, normal, or good eye contact,” and

appeared “attentive during therapy sessions.” (Tr. 17) The ALJ also stressed that Plaintiff

“was only hospitalized for psychologically based symptoms on one occasion during the

period at issue.” (Id.) Plaintiff does not challenge this. But, the ALJ’s decision to assign

little weight to Dr. Nardone’s opinion, combined with the ALJ’s parsing of Plaintiff’s

mental health records, underscores the ALJ’s cursory treatment of Plaintiff’s VA disability

rating and its impact on the ALJ’s analysis of Plaintiff’s DIB application.

Ironically, the ALJ relies on Plaintiff’s VA medical records for his conclusion that

Plaintiff is not disabled yet assigns little weight to the VA’s decision that she is. The ALJ

offers no meaningful discussion of why Plaintiff’s 70% VA disability rating still qualified

her for her past relevant work at all exertional levels under SSA guidelines. This adds up

to legal error, especially because the VA’s decision was based on the same underlying

mental conditions at issue in the SSA proceedings. Substantial evidence to conclude the

ALJ carefully considered and closely scrutinized Plaintiff’s VA disability rating does not

exist.

Accordingly, after consideration, it is hereby

ORDERED:

1. The Commissioner’s decision is reversed.

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

case.

ORDERED in Tampa, Florida, on February 23, 2021.

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

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