Bechard v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19 CV 143

ERIC MARCEL BECHARD, )

)

Plaintiff, )

) MEMORANDUM OPINION

v. ) AND

) ORDER

ANDREW SAUL, )

Acting Commissioner of the Social )

Security Administration, )

)

Defendant. )

___________________________________ )

This matter is before the Court on the parties’ cross motions for summary

judgment. Docs. 12 & 14.1

I. Procedural History

On January 18, 2017, Plaintiff Eric Marcel Bechard (“Plaintiff”) filed an

application for disability and disability insurance benefits under Title II of the

Social Security Act. Transcript of Administrative Record (“AR”) pp. 185-191.

Following denial of Plaintiff’s claim on initial review and reconsideration, a

hearing was held on September 5, 2018, in Charlotte, North Carolina, where

Plaintiff appeared and testified. AR pp. 32-82.

On October 16, 2018, the Administrative Law Judge (“ALJ”) issued an

1 The parties have consented to the disposition of this matter by a United States

Magistrate Judge. Docs. 9 & 10.

unfavorable decision. AR pp. 12-31. The Appeals Council denied Plaintiff’s

request for review of that decision and, on May 2, 2019, Plaintiff timely filed

the instant action. AR pp. 1-6 & Doc. 1. Accordingly, Plaintiff exhausted his

administrative remedies and the ALJ’s decision is the Commissioner’s final

decision for purposes of judicial review. See 20 C.F.R. § 404.981.

II. The Five-Step Process

A claimant has the burden of proving that he or she suffers from a

disability, which is defined as a medically determinable physical or mental

impairment lasting at least 12 months that prevents the claimant from

engaging in substantial gainful activity. 20 C.F.R. §§ 404.1505; 416.905. The

regulations require the Commissioner to apply a five-step sequential

evaluation to each claim for benefits. 20 C.F.R. §§ 404.1520; 416.920. In this

process, the Commissioner considers each of the following: (1) whether the

claimant has engaged in substantial gainful employment; (2) whether the

claimant has a severe impairment; (3) whether the claimant’s impairment is

sufficiently severe to meet or exceed the severity of one or more of the

impairments listed in Appendix I of 20 C.F.R. Part 404, Subpart P; (4) whether

the claimant can perform his or her past relevant work; and (5) whether the

claimant is able to perform any other work considering his or her age,

education, and residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520,

416.920; Mastro v. Apfel, 270 F.3d 171, 177 (4th Cir. 2001); Johnson v.

Barnhart, 434 F.3d 650, 653 n.1 (4th Cir. 2005) (per curiam).

The burden rests on the claimant throughout the first four steps of this

five-step process to prove disability. Monroe v. Colvin, 826 F.3d 176, 179 (4th

Cir. 2016). If the claimant is successful at these steps, then the burden shifts

to the Commissioner to prove at step five that the claimant is capable of

performing other work, considering the claimant’s RFC, age, education, and

past work experience. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015);

Monroe, 826 F.3d at 180.

III. The ALJ’s Decision

The ALJ determined that Plaintiff had the severe impairments of

“Degenerative disc disease; Bilateral upper extremity arthralgias and strain

(worse on the left); Arthritis; Radiculopathy; Headaches; Gout; Left hip pain;

Hypertension; PTSD; [and] Alcohol use disorder.” AR p. 17. The ALJ further

found that Plaintiff had the RFC to

perform light work as defined in 20 CFR 404.1567(b)

except he is limited to occasional overhead reaching

and frequent reaching in all directions with the

bilateral upper extremities. He is also limited to

frequent pushing and pulling and frequent handling

and fingering bilaterally. He can frequently climb

ramps and stairs, but should never climb ladders,

ropes, or scaffolds. He can frequently stoop, kneel,

crouch, and crawl. He should avoid concentrated

exposure to unprotected heights, moving mechanical

parts, and loud noise. The claimant can perform

simple routine tasks involving simple work related

instructions and directions, but not at a production

rate pace such as assembly line work. He is capable of

sustaining concentration and pace for 2-hour

segments during a standard 8-hour workday. Only

occasional interaction with supervisors, coworkers,

and the public. He is limited to routine changes in an

unskilled work setting.

AR p. 20.

Applying this RFC, the ALJ found that Plaintiff was unable to perform his past

relevant work but could perform other work such that Plaintiff was not

disabled from September 1, 2016 (Plaintiff’s alleged disability onset date)

through October 16, 2018 (the date of the ALJ’s Decision). AR pp. 25-27.

IV. Standard of Review

Under 42 U.S.C. § 405(g), judicial review of a final decision of the

Commissioner denying disability benefits is limited to two inquiries: (1)

whether substantial evidence exists in the record as a whole to support the

Commissioner’s findings, and (2) whether the Commissioner’s final decision

applied the proper legal standards. Hines v. Barnhart, 453 F.3d 559, 561 (4th

Cir. 2006) (quoting Mastro, 270 F.3d at 176). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal

quotation marks omitted). It is more than a scintilla but less than a

preponderance of evidence. Id.

When a federal district court reviews the Commissioner’s decision, it

does not “re-weigh conflicting evidence, make credibility determinations, or

substitute [its] judgment for that of the Secretary.” Id. Accordingly, the issue

before the Court is not whether Plaintiff is disabled but, rather, whether the

Commissioner’s decision that he is not disabled is supported by substantial

evidence in the record, and whether the ALJ reached his decision based on the

correct application of the law. Id.

V. Analysis

Plaintiff makes two allegations of error: (1) that the ALJ did not correctly

weigh a decision by the Department of Veterans’ Affairs (“VA”) regarding

Plaintiff’s disability, and (2) that the ALJ’s RFC was not supported by

substantial evidence.

A. VA Disability Decision

Although “[a] disability decision by another entity does not bind the

SSA,” the Fourth Circuit has held that “‘the [prior] disability determination of

a state administrative agency is entitled to consideration.’” Woods v. Berryhill,

888 F.3d 686, 691 (4th Cir. 2018) (citing DeLoatche v. Heckler, 715 F.2d 148,

150, n. 1 (4th Cir. 1983)). With respect to disability decisions by the

Department of Veterans Affairs (“VA”), the Administration must give these

disability decisions “substantial weight,” unless “the record before the ALJ

clearly demonstrates that…a deviation is appropriate.” Bird v. Commissioner

of Social Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012). In the “related

context” of disability decisions by the North Carolina Department of Health

and Human Services, the Fourth Circuit has explained that in order to

demonstrate that deviation from the substantial weight standard is

appropriate, the ALJ must provide “persuasive, specific, valid reasons for doing

so that are supported by the record.” Woods, 888 F.3d at 692.

Here, the VA previously assigned Plaintiff an “overall or combined”

disability rating of 100%. AR pp. AR p. 182.2 In his October 16, 2018 Decision,

the ALJ noted that Plaintiff “alleged that he is unable to work because he is

100% disabled per the Veterans Administration due to PTSD, gout, arthritis,

and nerve damage” and that with respect to his alleged mental impairments,

Plaintiff had “received a 70% disability rating from the VA for PTSD.” AR pp.

20 & 22. However, the ALJ assigned the VA rating “little weight.” AR p. 21.

The ALJ acknowledged that under Bird, a decision to assign the VA

rating little weight must be supported by “explicitly detailed” reasons where

“the ‘record before the ALJ clearly demonstrates that such deviation is

appropriate.’” AR p. 21 (quoting Bird, 699 F.3d at 343). With respect to

Plaintiff’s physical impairments, the ALJ cited and discussed medical records

reflecting physical examinations during which Plaintiff displayed normal

2 The VA disability rating is calculated from a combined rating table that considers

the effect from the most serious to the least serious conditions. See AR, pp. 162-184.

range of motion, normal gait, and normal strength.3 With respect to Plaintiff’s

mental impairments, the ALJ cited and discussed the findings of a January 3,

2018 psychological consultative exam4 and Plaintiff’s mental health treatment

records reflecting unremarkable mental status findings.5

In view of the ALJ’s discussion of this evidence, the undersigned finds

that the ALJ adequately supported his decision to give the VA disability

determinations little weight. See Coggin v. Saul, No. 3:18-CV-00555-KDB,

2019 WL 7019398, at *4 (W.D.N.C. Dec. 20, 2019) (finding no error in ALJ’s

3 AR p. 21 (citing AR p. 435 (November 2016 record reflecting good range of motion

in upper extremities, full range of motion of the right lower extremity (hip, knee, foot,

and ankle), decreased range of motion in left hip, and that Plaintiff was able to get

up and down easily); p. 1041 (April 2017 VA record reflecting that Plaintiff

demonstrated normal gait and full range of motion in the neck and shoulders); p. 1320

(June 2017 orthopedic notes indicating Plaintiff benefitted substantially from

physical therapy for his hip and demonstrated significant improvement in his

strength); p. 1317 (December 2017 treatment note reflecting Plaintiff was “walking

well” and had “[r]eally no discomfort”); p. 1403 (February 2018 treatment note

reflecting Plaintiff was in no apparent discomfort and displayed a steady gait, had

full motor strength and full range of motion); p. 1391 (May 2018 treatment note

reflecting full range of motion in all extremities)).

4 AR p. 22 (discussing January 3, 2018 consultative exam wherein Plaintiff was noted

to be polite and cooperative, with no evidence of psychotic symptomology, and with

normal speech, rational thought process, and memory, recall, and abstract thinking

within normal limits (See AR p. 1364)).

5 AR p. 23 (citing AR pp. 1178-1187 (February 2017 neuropsychology consult record

reflecting Plaintiff had no difficulty understanding and following test instructions,

attended carefully to tasks, was alert and oriented with clear and coherent speech,

normal thought process, displayed moderate impairment in attention and

concentration but an average range of functioning in memory recall); p. 1403

(February 2018 progress note recording Plaintiff’s mood and affect as “pretty good”);

p. 1367 (July 2018 VA treatment note reflecting Plaintiff presented in no acute

psychological or emotional distress and in no need of any additional emergency

mental health intervention)).

decision to give little weight to the plaintiff’s VA disability ratings because “the

ALJ expressly considered the available medical evidence and opinions from the

VA in determining Plaintiff’s RFC and the weight to give the VA ratings”);

Green v. Berryhill, No. TMD 15-3467, 2017 WL 1048155 at *9 (D. Md. March

20, 2017) (finding no error where “the ALJ adequately explained his decisions

for assigning the VA disability ratings little weight”); but see Ramon M. v.

Berryhill, No. CV CBD-18-2025, 2019 WL 2436938, at *5 (D. Md. June 10,

2019) (finding that the ALJ erred in giving less weight to plaintiff’s VA rating

because he failed to “identif[y] what in the VA’s determination the ALJ found

not to be credible and cit[e] to evidence in the record that supports his

conclusion”).

B. RFC

RFC is defined as “the most [a claimant] can do despite [his or her]

limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). SSR 96-8p, 1996 WL

374184 (July 2, 1996), provides that an ALJ’s RFC “assessment must include

a narrative discussion describing how the evidence supports each conclusion,

citing specific medical facts (e.g. laboratory findings) and nonmedical evidence

(e.g. daily activities, observations).” Id. at *7. The Commissioner is

responsible for determining the claimant’s RFC based on all the relevant

evidence. Johnson, 434 F.3d at 653. In formulating an RFC, an ALJ is not

required to discuss every piece of evidence. See Reid v. Comm’r of Soc. Sec.,

769 F.3d 861, 865 (4th Cir. 2014).

Here, the ALJ determined that Plaintiff had the ability to perform light

work with some additional limitations. The ALJ further found that Plaintiff

had moderate difficulties in understanding, remembering, or applying

information; interacting with others; concentrating, persisting, or maintaining

pace; and adapting or managing himself, AR p. 19, but that Plaintiff retained

the ability to perform “simple routine tasks involving simple work related

instructions and directions, but not at a production rate pace,” was capable of

sustaining concentration and pace “for 2-hour segments during a standard 8-

hour workday,” could have “occasional interaction with supervisors, coworkers,

and the public,” and was “limited to routine changes in an unskilled work

setting.” AR p. 20.

The undersigned finds that the ALJ adequately explained how he

weighed the subjective and objective medical evidence in reaching his

conclusion. The ALJ considered Plaintiff’s reported difficulty with lifting,

squatting, standing, concentration and getting along with others. However,

the ALJ noted several contradictions between Plaintiff’s statements and other

medical evidence in the record. See Brown v. Comm’r Soc. Sec. Admin., 873

F.3d 251, 255 (4th Cir. 2017) (The ALJ must “assess the credibility of the

claimant’s statements about symptoms and their functional effects.”). The ALJ

relied on medical records reflecting physical examinations during which

Plaintiff displayed normal range of motion, normal gait, and normal strength6

as well as the findings of a January 3, 2018 psychological consultative exam7

and Plaintiff’s mental health treatment records.8

Additionally, the ALJ noted that Plaintiff’s reported ability to prepare

meals, perform light chores, drive, shop, swim, and attend social activities

suggested that Plaintiff can remember and apply information while

maintaining concentration, persistence and pace for simple tasks, and that he

can appropriately interact with others. AR pp. 20 & 23; see also AR p. 19. This

information, the ALJ explained, was consistent with the opinions of the State

agency medical consultants and examiners, who determined that Plaintiff was

capable of light unskilled work, interacting with coworkers and supervisors,

and adapting to routine or simple changes in his work environment. AR p. 24.9

It was also consistent with Plaintiff’s physical medical records discussed above.

Accordingly, the ALJ’s development of Plaintiff’s RFC was supported by

substantial evidence and the ALJ’s RFC finding should not be disturbed. See

Plummer v. Astrue, No. 5:11CV006-RLV-DSC, 2011 WL 7938431, at *5

(W.D.N.C. Sept. 26, 2011) (“The claimant bears the burden of providing

6 See supra n. 3.

7 See supra n. 4.

8 See supra n. 5.

9 See AR pp. 91-94, 108, 111-112, 114-116.

evidence establishing the degree to which her impairments limit her RFC.”).

VI. Conclusion

For the foregoing reasons, Plaintiff's Motion for Summary Judgment

(Doc. 12) is DENIED and the Commissioner’s Motion for Summary Judgment

(Doc. 14) is GRANTED.

Signed: June 9, 2020

a) Cone J

fs: Lal LP cat,

W. Carleton Metcalf / □

United States Magistrate Judge AS

11