# WILBANKS v. KIJAKAZI

> District Court, M.D. North Carolina · August 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10253954

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253954

## How later opinions describe it (automated extraction)

- explaining that because we review an AL
- describing standard for VA decisions

## Opinion text

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

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253954. Public record. Not legal advice.