WILBANKS v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ERNEST WILLBANKS, )

)

Plaintiff, )

)

v. ) 1:20CV481

)

KILOLO AKAZLI! )

Acting Commissioner of Social Security, )

)

Defendant. . )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Ernest Willbanks (“Plaintiff”) brought this action pursuant to Section 205(g)

of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial

review of a final decision of the Commissioner of Social Security denying his claim for

Disability Insurance Benefits (“DIB”) under Title II of the Act. The patties have filed cross-

motions for judgment, and the administrative record has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed his application for DIB on April 25, 2016, alleging a disability

onset date of October 2, 1994. (Tr. at 16, 200-06.)? His claim was denied initially (Tr. at 87-

98, 115-18), and that determination was upheld on reconsideration (I'r. at 99-114, 120-23).

Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative

Law Judge (‘ALJ”). (Tr. at 124-25.) Plaintiff, along with his attorney and an impartial

* Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d)

of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for Andrew Saul as

the defendant in this suit. No further action need be taken to continue the suit by reason of the last sentence

of section 205(g) of the Social Security Act § 405(¢).

* Transcript citations refer to the Administrative Record [Doc. #9].

vocational expert, attended the subsequent video hearing on January 8, 2020. (Tr. at 16.) At

that time, Plaintiff, through his attorney, amended his alleged onset date to April 1, 2013. (Tr.

at 16.) Following the hearing, the ALJ concluded that Plaintiff was not disabled within the

meaning of the Act (Tr. at 28), and, on Match 30, 2020, the Appeals Council denied Plaintiffs

request for review of that decision, thereby making the AL]’s conclusion the Commissionet’s

final decision for purposes of judicial review (Tr. at 1-6).

II. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL] if they ate supported by substantial evidence and were teached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) Gnternal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richatdson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) Gnternal citations and quotation marks omitted). “Tf there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to tre-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

AL)’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means 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.” Id. (quoting 42 U.S.C. § 423(d)(1)(A))3

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C-F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

3 “The Social Secutity Act comprises two disability benefits programs. The Social Secutity Disability Insutance

Program (SSDI), established by Title If of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. ‘The Supplemental Secutity Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the tegulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDD; 20 C.E.R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requirements of a listed impaitment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquiry. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impaitment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,

but falters at step three, i.e., “[i]f a clatmant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the clatmant’s residual functional

capacity (RFC’).” Id. at 179.4 Step four then requires the AL] to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the clatmant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

* “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect clatmant’s “ability to do sustained work-

telated physical and mental activities in a work setttng on a regular and continuing basis . . . [which] means 8

hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

otnitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, ot skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after

[the ALJ] considers all relevant evidence of a clatmant’s impairments and any related symptoms (¢.g, pain).”

Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s| vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Ill. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” from his amended alleged onset date, April 1, 2013, through his date last insured of

December 31, 2018. The AL] therefore concluded that Plaintiff met his burden at step one

of the sequential evaluation process. (Tr. at 18.) At step two, the ALJ further determined that

Plaintiff suffered from the following severe impairments:

bipolar depression; degenerative disc disease at C5-6 and C6-7; and lumbar

radiculopathy|.]

(Tr. at 18.) The ALJ found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (Tr. at 19-20.) Therefore, the ALJ assessed

Plaintiffs RFC and determined that he could perform light work with the following, non-

exertional limitations:

occasional climbing [of] ladders, ropes, or scaffolds; frequent climbing [of]

ramps of staits; occasional overhead reaching; avoiding concentrated use of

moving machinery and concentrated exposute to unprotected heights; and work

in a low sttess job, meaning only occasional changes in the work setting,

occasional interaction with the public, and occasional interaction with

coworkers.

(Tr. at 20.) Based on this determination, the AL] found at step four of the analysis that Plaintiff

could not perform any of his past relevant work. (Tr. at 26.) However, the AL] concluded at

step five that, given Plaintiffs age, education, work experience, and RFC, along with the

testimony of the vocational expert regarding those factors, Plaintiff could perform other jobs

available in the national economy and therefore was not disabled. (T't. at 27-28.)

Plaintiff now contends that in formulating his RFC assessment, the ALJ failed to

properly consider Plaintiffs Department of Veterans Affairs (“VA”) disability rating in

accordance with Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012).

Under the regulations in effect at the time Plaintiffs claim was filed, and as further

explained in Social Security Ruling (“SSR”) 06-03p, “a determination made by another agency

that [the claimant is] disabled or blind is not binding on” the Social Security Administration

(“SSA”). Social Security Ruling 06-03p, Titles II and XVI: Considering Opinions And Other

Evidence From Sources Who Ate Not “Acceptable Medical Sources” In Disability Claims;

Considering Decisions On Disability By Other Governmental and Nongovernmental

Agencies, 2006 WL 2329939, at *6 (Aug. 9, 2006) (“SSR 06-03p”). Rather, “the ultimate

responsibility for determining whether an individual is disabled under Social Security law rests

with the Commissioner.” Id. at *7. Nevertheless, the SSA is “required to evaluate all the

evidence in the case record that may have a beating on [its] determination or decision of

disability, including decisions by other governmental and nongovernmental agencies.” Id. at

*6. Therefore, “evidence of a disability decision by another governmental or

nongovernmental agency cannot be ignored and must be considered.” Id. Moreover, “the

adjudicator should explain the consideration given to these decisions in the notice of decision

for hearing cases.” Id. at *7.

In Bird v. Comm’t of Soc. Sec. Admin., the Fourth Circuit clarified the Commissioner’s

obligations under 20 C.F.R. § 404.1504 and SSR 06-03p, and held that the Commissioner must

give substantial weight to a Veterans Affairs disability rating, based on the following reasoning:

The VA tating 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 progtams 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.

However, because the SSA employs its own standards for evaluating a

claimant’s alleged disability, and because the effective date of covetage for a

claimant’s disability under the two programs likely will vary, an AL] may give

less weight to a VA disability rating when the record before the AL] clearly

demonstrates that such a deviation is appropriate.

Bird, 699 F.3d at 343 (emphasis added). The Fourth Circuit further explained, in Woods v.

Berryhill, 888 F.3d 686 (4th Cir. 2018),

that in order to demonstrate that it is “appropriate” to accord less than

“substantial weight” to [another agency’s] disability decision, an AL] must give

“persuasive, specific, valid reasons for doing so that are supported by the

record.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (describing

standard for VA decisions); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.

2001) (per curiam) (explaining that ALJs need not give great weight to VA

disability determinations “if they adequately explain the valid reasons for not

doing so”).

Id. at 692-93.

In the present case, the VA had issued a determination finding Plaintiff 100% disabled,

and the AL] acknowledged that determination as follows:

Pursuant to 20 CFR 404.1504, a decision by any nongovernmental agency or

any other governmental agency about whether a claimant is disabled or blind is

based on its rules and is not the Social Security Administration decision about

whether that claimant is disabled or blind. The Social Security Administration

must make a disability or blindness determination based on social security law.

Therefore, a determination made by another agency is not binding on the Social

Security Administration. Nevertheless, I] have considered the Department of

Veterans Affairs (VA) determination that [Plaintiff] is 100 percent totally and

permanently disabled due to service-connected disabilities. A VA disability

tating decision dated February 12, 2015, indicates that [Plaintiff] was found to

have setvice[-]connected disabilities as follows: 10% for tinnitus; 10% for right

lower extremity radiculopathy; 10% for left lower extremity radiculopathy; 10%

for degenerative disease of the lumbar spine; 10% for posttraumatic vascular

headaches; and 100% for PTSD with major depressive disorder and [traumatic

brain injury]. [Plaintiff] was also found entitled to individual unemployability

under VA rules. While I acknowledge the VA disability determination, I note

that [Plaintiffs] mental symptoms do not result in limitations so severe as to be

disabling based on social security law, as described in more detail above. I have

considered the record as a whole, including medical evidence provided by the

VA, in making my determination.

(Tr. at 26) Gnternal citations omitted). Significantly, as set out in that paragraph, the AL]’s

only specifically stated rationale for deviating from the VA’s decision was that the VA rules

differed from the Social Security rules in some unspecified way, and that the VA rules were

“not binding” on the SSA. In addition, with respect to Plaintiffs VA determination, the ALJ

simply “acknowledged” the VA determination, but did not give it substantial weight, and

instead just concluded that Plaintiffs mental symptoms wete not disabling “based on social

security law.” (Tr. at 26.)

Defendant nevertheless contends that the ALJ’s analysis was sufficient because the AL]

not only included this generic language but also incorporated the entire prior analysis by saying

“as described in more detail above.” (Def. Br. [Doc. # 17] at 14-15.) However, this equally

generic language does not provide the requisite detail, particularly grven that the ALJ’s prior,

incorporated discussion did not distinguish the VA decision or provide “persuasive, specific,

valid reasons” for according less than substantial weight to the VA’s 100% mental disability

tating in this case. Woods, 888 F.3d at 692-93 (emphasis in original) (citations omitted).

As in Bird and Woods, there may be reasons that could support a vatiance from the

VA decision, but it is just not clear which reasons might apply here. For example, the ALJ

rejected Plaintiffs claim of Traumatic Brain Injury, finding that this claim was inconsistent

with the medical evidence of record, which could be a reason for discounting the VA’s

determination to the extent it included Traumatic Brain Injury. (Tr. at 21.) However, the ALJ

did not include such an explanation. Moreover, the VA decision specifically concluded that

all of Plaintiffs behavioral/emotional symptoms were due to his mental health condition, and

the “100 percent evaluation has been granted using the mental health evaluation criteria” (Tr.

at 186) with a “100 percent evaluation for your major depressive order.” (I't. at 188.) This is

the same mental impairment accepted by the AL], so it is not apparent that the rejection of

the Traumatic Brain Injury claim would impact the weight given to the VA determination.

Similarly, the ALJ’s general discussion reflected that Plaintiff was “generally stable with

treatment” with exceptions primarily when he was admitted for substance abuse programs or

relapses. (Tr. at 22-23.) It is possible that the AL] could have varied from the VA

determination based on the different treatment of substance abuse issues.> However, the AL]

° Under the Social Security regulations, as recently reiterated by the Court of Appeals for the Fourth Circuit,

law is clear that a clatmant who would otherwise qualify as disabled is not entitled to benefits if alcoholism

ot drug abuse is a contributing factor material to the disability determination. See 42 U.S.C. §§ 423(d)(2)(©),

1382c(a)(3)J). The regulations implementing those provisions specify that [t]he key factor ... is whether we

would still find you disabled if you stopped using drugs or alcohol.’ 20 C.F.R. § 404.1535(b)(1).” Sizemore v.

Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017). In contrast, “an alcohol abuse disability arising as a direct result

of a psychiatric condition fits within [the Veterans’ Administration] words of authorization for compensation

... and does not fit within [the statute’s] express exclusion from compensation.” See Allen v. Principi, 237

F.3d 1368, 1376 (“We do not think that the language of § 1110 precludes compensation in the third situation—

ie. Allen's alleged case—where an alcohol abuse disability arises secondarily from or as evidence of the

increased severity of a non-willful misconduct, service-connected disorder.’’).

did not include such a determination and instead specifically found that Plaintiffs substance

abuse was not a severe impairment and did not result in a severe exacerbation of mental

symptoms. (I'r. at 18-19), Thus, it is not apparent that substance abuse issues were material

to the AL]’s decision or that the different standards for substance abuse were the basis for

departing from the VA’s determination. The AL] also referenced the opinion of State Agency

psychological consultant Dr. Herrera from October 2018, but the ALJ accepted only parts of

that opinion and it is not cleat why he valued that opinion above Plaintiffs treating and

examining physicians at the VA or how the partial opinion would overcome the substantial

weight accorded to the VA determination. Thus, while there may be reasons for varying from

the VA decision, the record before the ALJ did not “clearly demonstrate[] that .. . a deviation

[from the V.A’s decision was] appropriate” as set out in Bird, 699 F.3d at 343, nor did the ALJ

“adequately explain [his] valid reasons” for this departure in accordance with Woods.

Notably, in Woods itself, the Commissioner argued that, “because the ALJ’s decision

as a whole makes clear that he considered the same evidence on which the [agency] relied, the

AL] did not need to refer expressly to that evidence in discussing the [agency] decision.”

Woods, 888 F.3d at 693. However, the Fourth Circuit rejected this contention. In doing so,

the Fourth Circuit acknowledged that “i]t may well be that the ALJ considered this evidence

in deciding both which doctors and evidence to credit and whether the [agency] decision

deserved substantial weight,” but the ALJ did not so specify, and the Fourth Circuit held that

“meaningful review cannot rest on such guesswork.” Id. at 693-94 (citations omitted).°

6 In the context of the present case, the Court further notes that any effort to supply after-the-fact

tationalizations fails to remedy the AL]’s omission. See Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80,

87 (1943) (courts must review administrative decisions on the grounds upon which the record discloses the

action was based); see also Anderson v. Colvin, No. 1:10CV671, 2014 WL 1224726 at *1 (M.D.N.C. March 25,

10

In addition, as set out above, the court in Woods clarified exactly what an ALJ must

do to demonstrate an “appropriate” deviation from the “substantial weight” presumption

accorded to the decisions of other agencies. Id. at 692. Specifically, when according “less

than ‘substantial weight’ to [another agency’s] disability decision, an AL] must give ‘persuasive,

specific, valid reasons for doing so that are supported by the record.” Id. The court then

expounded as follows:

For example, an AL] could explain which aspects of the prior agency decision

he finds not credible and why, describe why he finds other evidence mote

credible, and discuss the effect of any new evidence made available after [the

other agency] issued its decision. This list is not exclusive, but the point of this

requitement—and of these examples—is that the ALJ must adequately explain

his reasoning; otherwise, we cannot engage in a meaningful review. See Radford

v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (explaining that because we review

an AL)’s factual findings for substantial evidence, an ALJ’s decision must

generally “include a discussion of which evidence the ALJ found credible and

why, and specific application of the pertinent legal requirements to the record

evidence”).

Id. at 692-93. In the instant case, the AL] provided none of these reasons, at least in a way

that is clear enough to allow for judicial review. Thus, as in Woods, the AL] did not adequately

justify his decision to accord the VA decision “less than the substantial weight it generally

deserves.” Id. at 693. Because a generic rationale is insufficient under the Fourth Circuit’s

decisions in Bird and Woods, substantial evidence fails to support the AL]’s decision, and

remand is required.

2014) (noting that this Court’s “[rjeview of the ALJ’s ruling is limited further by the so-called ‘Chenery

Doctrine, which prohibits courts from considering post hoc rationalizations in defense of administrative agency

decisions. ... Under the doctrine, a reviewing court ‘must judge the propriety of [agency] action solely by the

grounds invoked by the agency. .. . If those grounds are inadequate or improper, the court is powerless to

affirm the administrative action by substituting what it considers to be a more adequate or proper basis”’).

11

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be REVERSED, and that the matter be REMANDED to the Commissioner

under sentence four of 42 U.S.C. § 405(g). Defendant’s Motion for Judgment on the Pleadings

[Doc. #16] should be DENIED, and Plaintiffs Motion to Reverse the Decision of the

Commissioner [Doc. # 13] should be GRANTED to the extent set out herein.

This, the 23rd day of August, 2021.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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