The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:19-cv-91-BO
CHRISTOPHER ROSE, )
Plaintiff,
V. ORDER
ANDREW SAUL,
Commissioner of Social Security,' )
Defendant.
This cause comes before the Court on plaintiff's motion for summary judgment [DE 15]
and defendant’s motion for judgment on the pleadings [DE 17]. A hearing was held on this matter
before the undersigned on July 28, 2020 via videoconference. For the reasons discussed below,
plaintiff's motion is granted, and defendant’s motion is denied.
BACKGROUND
Plaintiff Christopher Rose is an Iraq War combat veteran. Mr. Rose endured a series of
traumatic and harrowing episodes during his deployment. As a result, he suffers from, among other
things. severe post-traumatic stress disorder, migraine headaches, and insomnia. In December
2016. the Department of Veterans Affairs (VA) Medical Center in Hampton, Virginia evaluated
Mr. Rose for disability and gave him a 100% disability rating. His final assessment of 100%
disabled was based on a 70% rating for PTSD and a 50% rating for migraine headache disorder.
In March 2018, Mr. Rose protectively filed an application for period of disability and
disability insurance benefits under Title II of the Social Security Act, alleging an onset of disability
of June 11, 2016 due to PTSD, migraine headaches, tendon injuries to the knee and achilles, and
' Saul has been substituted as the proper defendant pursuant to Fed. R. Civ. P. 25(d).
Stage 3 kidney cancer. The application was denied initially and upon reconsideration. A Social
Security Administrative Law Judge (“ALJ”) conducted a hearing on Mr. Rose’s application on
December 20, 2018. On January 30, 2019, the ALJ issued an unfavorable decision. The ALJ found
that Mr. Rose suffered from the following severe impairments: PTSD, idiopathic episodic
paresthesia, obstructive sleep apnea, history of kidney cancer with partial nephrectomy, migraines,
thyroid nodule, and diabetes mellitus. Tr. 17. The ALJ also found that Mr. Rose was unable to
perform any of his prior work. But based on the ALJ's assessment of Mr. Rose’s residual functional
capacity (“RFC”), she nonetheless concluded that there were a significant number of other jobs in
the national economy which Mr. Rose could perform. Tr. 24-25. The ALJ did not mention or
discuss the VA’s disability rating in her decision.
After the Social Security Appeals Council denied his request for review, Mr. Rose brought
this action under 42 U.S.C. § 405(g) for review of the final decision of the Commissioner denying
his claim for disability insurance benefits.
DISCUSSION
I. The ALJ decision
Under the Social Security Act, an individual is considered disabled if he is 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. § 1382c(a)(3)(A). The
Act further provides that an individual “shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §
1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation process
to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, if the
Social Security Administration determines that the claimant is currently engaged in substantial
gainful activity, the claim is denied. If not, step two asks whether the claimant has a severe
impairment or combination of impairments. If the claimant has a severe impairment, it is compared
at step three to those in the Listing of Impairments (“Listing”) in 20 C.F.R. Part 404, Subpart P,
App. 1. If the claimant’s impairment meets or medically equals a Listing, disability is conclusively
presumed. However. if the claimant’s impairment does not meet or equal a listed impairment, then
the analysis proceeds to step four, where the claimant’s residual functional capacity (RFC) is
assessed to determine whether plaintiff can perform his past work despite his impairments. If the
claimant cannot perform past relevant work, then the burden shifts to the Commissioner at step
five to show that the claimant—based on age, education, work experience, and RFC—can perform
other substantial gainful work. If the claimant cannot perform other work, then the claimant is
found to be disabled. See 20 C.F.R. § 416.920(a)(4).
Here. the analysis ended at step five when the ALJ considered Mr. Rose’s RFC and
determined that, although he was unable to perform his past relevant work, he was able to perform
other jobs that existed in significant numbers in the national economy.
I. Plaintiff's claims of error
In his written brief, Mr. Rose argues that the ALJ committed the following errors: (1) in
assessing the RFC. by failing to make a finding about Mr. Rose's intermittent incapacity caused
by the periodically debilitating effects of the PTSD, headache disorder, and fatigue; and (2) at step
five, by relying on a response to an incomplete hypothetical question posed to the vocational expert
(“VE™) witness. At the hearing. however, counsel for Mr. Rose raised a third and salient issue for
this Court to consider in its review. Specifically, counsel raised the issue of whether the ALJ erred
by failing to afford substantial weight to the VA’s 100% disability rating—or at least articulate
specific, persuasive reasons why the disability rating should be afforded less than substantial
weight.
Il. The Court's review
Under 42 U.S.C. § 405(g), this Court’s review of the Commissioner’s decision is limited
to determining whether the decision is supported by substantial evidence and whether the
Commissioner employed the correct legal standard. Richardson v. Perales, 402 U.S. 389, 401
(1971).~Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Johnson vy. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per
curiam). “A necessary predicate to engaging in substantial evidence review is a record of the basis
for the ALJ's ruling.” Radford v. Colvin, 734 F.3d 288. 295 (4th Cir. 2013). “[C]Jourts must not
abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a
sound foundation for the Secretary's findings. and that his conclusion is rational.” Vitek v. Finch,
438 F.2d 1157, 1157-58 (4th Cir. 1971).
A. The ALJ erred by failing to consider and afford weight to the VA disability rating.
Going back decades, the Fourth Circuit has emphasized that ALJs must give weight to
certain medical opinions and disability determinations. See Vitek v. Finch, 438 F.2d 1157, 1160
(4th Cir. 1971). In DeLoatche v. Heckler, the court held that an ALJ must consider as evidence the
disability determination of a state agency, and that an ALJ decision which ignored such a
determination failed to provide the requisite findings and explanations to enable judicial review.
715 F.2d 148, 150 (4th Cir. 1983). More recently, in Bird v. Commissioner of Social Security
Administration, the court held that VA ratings must be afforded “substantial weight” unless the
ALJ can clearly explain why less weight is appropriate. 699 F.3d 337, 343 (4th Cir. 2012).
In January 2017, the Social Security Administration published final rules titled “Revisions
to Rules Regarding the Evaluation of Medical Evidence.” 82 Fed. Reg. 5844; see also 82 Fed.
Reg. 15132 (March 27, 2017) (amending and correcting the final rules published at 82 Fed. Reg.
5844). Among other things, these final rules amended the regulations at 20 C.F.R. §§ 404.1504
and 416.904 (decisions by other governmental agencies and nongovernmental entities). The new
rules state that, for disability claims filed after March 27, 2017, SSA “will not provide any analysis
in [its] determination or decision about a decision made by any other governmental agency or a
nongovernmental entity about whether you are disabled, blind, employable, or entitled to any
benefits.” 20 C.F.R. §§ 404.1504 and 416.904. Despite this, the new rules attempt to assure the
claimant that SSA will still “consider all of the supporting evidence underlying the other
governmental agency or nongovernmental entity's decision... .” Jd. SSA also rescinded SSR 06-
03p, a policy directive which had concluded that “evidence of a disability decision by another
governmental or nongovernmental agency cannot be ignored and must be considered.”
As noted above, the ALJ in this case did not mention—much less discuss—Mr. Rose’s
100% VA disability rating. Citing the new Social Security regulations, the ALJ wrote that she
would “not discuss or analyze another agency's or provider's prior opinions about whether [the
Claimant is] disabled, blind. employable, or entitled to any benefits.” Tr. 23. In the ALJ's view,
the new regulations superseded the Fourth Circuit’s decision in Bird. This was error.
The new rules did not supersede the Fourth Circuit’s decision in Bird, and the ALJ
committed reversible error by failing to afford substantial weight to Mr. Rose’s 100% VA rating.
The ALJ’s assumption that the new SSA regulations supplanted Fourth Circuit case law rests on a
fundamental misunderstanding of Bird and the cases that preceded it. Bird did not interpret a prior
regulation, alterable by SSA. Rather, Bird tollowed a line of cases expounding on what is required
from the ALJ to enable the Court to conduct its review.
Bird began its analysis by invoking DeLoatche, 715 F.2d at 150, which explained that the
judicial task under § 405(g) was impossible without sufficient findings and explanations from the
ALJ. 699 F.3d at 343. An ALJ decision that overlooked an agency disability determination failed
in this respect. DeLoatche. 715 F.2d at 150. The court then surveyed the widespread agreement
between the courts of appeals—-as well as within SSA itself{—that VA ratings must be considered
by ALJs. Bird, 699 F.3d at 343 (citing MeCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.
2002): Kane v. Heckler, 776 F.2d 1130. 1135 (3d Cir. 1985); Cutler v. Weinberger, 516 F.2d 1282,
1286 (2d Cir. 1975): and SSR No. 06—-03p). After reviewing the overwhelming agreement on the
issue, the Court arrived at the heart of its analysis. It reasoned:
The VA rating decision reached in Bird's case resulted from an evaluation of the
same condition and the same underlying evidence that was relevant to the decision
facing the SSA. Like the VA, the SSA was required to undertake a comprehensive
evaluation of Bird’s medical condition. Because the purpose and evaluation
methodology of both programs are closely related, a disability rating by one of the
two agencies is highly relevant to the disability determination of the other agency.
Thus, we hold that, in making a disability determination, the SSA must give
substantial weight to a VA disability rating.
Id. This holding was unaffected by SSA’s new rules. An ALJ who fails to address a VA disability
rating leaves a gap in his or her decision, rendering judicial review impossible. Nowhere is this
hole more glaring than in a case like this, where the VA determined that Mr. Rose was 100%
disabled. To be sure, VA and SSA employ different technical rules for arriving at their respective
determinations. But it stretches the imagination to believe that the difference in methodology
accounts for the gap between the VA’s 100% disability rating and SSA’s finding of not disabled.
An ALJ decision that fails to address such a logical gap fails to provide the requisite findings and
explanations to enable judicial review.
The Court's reading of Bird is buttressed by Woods v. Berryhill, where the Fourth Circuit
explained that. in order to afford less than substantial weight to another governmental agency's
disability determination, the ALJ must give “persuasive, specific, valid reasons.” 888 F.3d 686,
692 (4th Cir. 2018). Without such explanation, according to Woods, a court “cannot engage in a
meaningful review.” /d. at 692-93. Moreover. Woods rejected the Commissioner's argument that
the ALJ can escape discussing the other agency's disability decision by merely considering the
evidence underlying that decision. /d. at 693-94. The court wrote: “[iJt may well be that the ALJ
considered this evidence in deciding both which doctors and evidence to credit and whether the
[other agency's] decision deserved substantial weight. But meaningful review cannot rest on such
guesswork.” /d By rejecting this argument, the court necessarily rejected the new SSA
regulations’ approach.’ It is not enough that the ALJ purport to engage with the medical evidence
In a footnote, Hoods references the new regulations from 82 Fed. Reg. 5844. 888 F.3d at 691
n.l. The court’s reference to the new regulations does not call into question the continuing
precedential value of Bird. Indeed, Woods makes clear that without consideration of a VA decision,
Judicial review is simply not possible.
on which the other agency's decision relied. The decision itself must be discussed, afforded
substantial weight, or else qualified with specific reasons.
In this case. the VA determined that Mr. Rose was 100% disabled. The ALJ, on the other
hand. determined that Mr. Rose was not disabled. Two government agencies performing similar
assessments reached polar opposite conclusions, leaving a glaring hole in the record and
preventing judicial review. Bird remedies this problem, and SSA‘s new regulations did not
overrule Bird. By failing to address Mr. Rose’s 100% VA disability rating, the ALJ erred.
B. The ALJ erred by fuiling to make a specific finding on whether plaintiff's intermittent
incapacity constitutes an inability to engage in substantial gainful activity.
The Court also finds that the ALJ committed Iegal error by not addressing Mr. Rose’s
periodic incapacity. The evidence presented to the ALJ established that Mr. Rose suffers from
multiple conditions, including PTSD, obstructive sleep apnea, and migraines. Symptoms Mr. Rose
actively experiences as part of his PTSD include depressed mood, anxiety, chronic sleep
impairment, and difficulty adapting to stressful circumstances. Tr. 1345. In his evaluations for his
sleep issues—which result in fatigue and daytime somnolence—he was consistently scored as
abnormal. Tr. 1604. At the ALJ hearing, Mr. Rose testified extensively about his daytime
somnolence, fatigue, and resulting inability to maintain a schedule. Tr. 47-54.
“An individual does not have to be totally helpless or bedridden in order to be found
disabled under the Social Security Act.” Totten vy. Califano, 624 F.2d 10, 11 (4th Cir. 1980). And
a claimant is not required to “show an inability to engage in any substantial gainful activity every
day of his existence.” /d. The evidence in the record shows that the combined effects of Mr. Rose’s
PTSD. insomnia, sleep apnea. and headaches cause him to be intermittently incapacitated. While
the ALJ limited Mr. Rose to light work, the decision contains no finding or discussion about his
ability to perform this work with any regularity or consistency in a competitive employment
environment.
Relatedly. the ALJ’s decision failed to properly account for Mr. Rose’s limitations in
concentration. persistence, and pace (CPP). The ALJ found that Mr. Rose had moderate CPP
limitations, but in assessing his RFC, only included limitations for “simple and routine tasks.”
“[T]he ability to perform simple tasks differs from the ability to stay on task.” Mascio v. Colvin,
780 F.3d 632, 638 (4th Cir. 2015). In addressing the CPP limitation in the RFC, the ALJ’s only
explanation is as follows:
The evidence shows that the claimant could read books and watch television. He
could drive and do basic tasks around the home (Hearing testimony). In light of this
as well as evidence discussed elsewhere in this decision, the undersigned believes
that the claimant does not have a significant deficit in the area of pace. His moderate
limitations in these areas are addressed by limiting him to concentrating and
persisting for simple, routine tasks.
Tr. 24. This explanation is unpersuasive. Mr. Rose’s ability to read books, watch TV, drive. and
do basic tasks around the house says nothing about his ability to stay on task in a work
environment. The evidence strongly suggests that Mr. Rose must rest frequently, or at least change
tasks regularly, as a result of his daytime somnolence and fatigue. Indeed, this is part of the reason
for his intermittent incapacity. The ALJ°s explanation for why she included minimal CPP
limitations is insufficient.
C. Remand is appropriate.
The Court has identified two errors in the ALJ’s decision and, therefore, need not address
plaintiff's third argurnent: wiether the ALJ relied on a response: to an incomplete hypothe:icail
question to the VE. When the ALJ decision lacks sufficient explanation, the proper course is
generally to remand to the agency. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2913). On
remand, the ALJ must give substantial weight to the VA’s disability determination unless there
are specific, persuasive reasons for affording it less weight. Additionally, the ALJ must consider
the combined effects of Mr. Rose’s impairments and make a finding on his intermittent incapacity.
The ALJ must also provide a legitimate explanation—if there is one—for why no additional CPP
limitations were included in the RFC.
Having conducted a full review of the record and decision in this matter, the Court
concludes that remand is appropriate. Plaintiff's motion [DE 15] is GRANTED and defendant’s
motion [DE 17] is DENIED. The Commissioner’s decision is REMANDED for further
proceedings consistent with the foregoing.
SO ORDERED, this kh. 3 day of August, 2020.
CHIEF UNITED STATES DISTRICT JUDGE
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