The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:20-cv-00340-MR-WCM
CHRISTOPHER PERKINS, )
)
Plaintiff, )
)
v. ) MEMORANDUM AND
) RECOMMENDATION
COMMISSIONER OF THE SOCIAL )
SECURITY ADMINISTRATION, )
)
Defendant. )
_______________________________ )
This matter is before the Court on the parties’ cross motions for summary
judgment (Docs. 12, 15), which have been referred to the undersigned pursuant
to 28 U.S.C. § 636 for the entry of a recommendation.
I. Procedural Background
In September of 2014, Plaintiff Christopher Perkins (“Plaintiff”) filed an
application for disability insurance benefits, alleging disability beginning June
15, 2014. Transcript of the Administrative Record (“AR”) 249-255.
On July 16, 2018, following an administrative hearing at which Plaintiff
appeared and testified, an Administrative Law Judge (“ALJ”) issued an
unfavorable decision. AR 10-35; see also AR 2052-2077 (duplicate of July 16,
2018 decision). Plaintiff appealed, and the matter was remanded to the
Commissioner for further consideration. AR 2084-2096; 2097-2100.
On April 6, 2020, following a second administrative hearing at which
Plaintiff appeared and testified, the same ALJ issued another unfavorable
decision. AR 1994-2022. The April 6, 2020 decision is the Commissioner’s final
decision for purposes of this action.
II. The ALJ’s Decision
The ALJ found that Plaintiff had the severe impairments of “PTSD,
alcohol abuse, left knee patellofemoral syndrome, asthma, obesity with
secondary obstructive sleep apnea.” AR 1999. After determining that Plaintiff’s
impairments did not meet or medically equal one of the listed impairments,
the ALJ found that through the last date on which Plaintiff was insured,1 he
had the residual functional capacity (“RFC”):
to perform the full range of light work…except he was
not to climb ladders, ropes or scaffolds. Furthermore,
as to other postural limitations, he was limited to
occasional. He was to have had no concentrated
exposure to hazards such as heights or moving
machinery and no concentrated exposure to extreme
temperatures or respiratory irritants such as gases,
fumes, or chemicals. He was to have no concentrated
exposure to loud noises. He was able to maintain
concentration for two-hour intervals to perform two-
three-step tasks with occasional decision making and
occasional changes to the work duties. He was to have
no requirement to interact with the general public
necessary to perform work duties and no tandem work
necessary to perform work duties.
1 The last date on which Plaintiff was insured for purposes of disability insurance
benefits was March 31, 2017. AR 1999.
AR 2002-2003.
Applying this RFC, the ALJ found that, from the alleged disability onset
date through the date Plaintiff was last insured, Plaintiff had the ability to
perform certain jobs that existed in significant numbers in the national
economy such that Plaintiff was not disabled. AR 2014-2016.
III. Plaintiff’s Allegations of Error
Plaintiff contends that the ALJ failed to justify her decision not to afford
substantial weight to a disability decision issued by the Veterans
Administration (“VA”) (AR 114-126). Additionally, Plaintiff contends that
remand is appropriate because the ALJ failed to conduct a function-by-function
analysis of his nonexertional limitations.2
IV. Standard of Review
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
2 Plaintiff also raised these allegations of error previously when he appealed the ALJ’s
July 16, 2018 decision. The case was remanded based on “Plaintiff’s alleged error
regarding Plaintiff’s RFC and the reasoning level of identified jobs,” but the court also
stated that while it was “not convinced Plaintiff’s other alleged errors would support
remand, it may be helpful for an ALJ to consider Plaintiff’s other arguments and add
further clarification in her/his decision as to those issues.” AR 2095; Christopher
Perkins v. Berryhill, United States District Court, Western District of North
Carolina, No. 3:18-cv-00598-DCK, Doc. 12. A comparison of the ALJ’s July 16, 2018
decision and her April 6, 2020 decision indicates that the ALJ did include some
additional discussion regarding these issues following remand, though the focus of
the ALJ’s April 6 decision was the reasoning level issue. See AR 2000 (“the limited
issue on Appeal is the reasoning level….”).
impairment lasting at least 12 months that prevents the claimant from
engaging in substantial gainful activity. 20 C.F.R. §§ 404.1505; 416.905; see
also 20 C.F.R. § 404.350(a)(5) (child benefits). The regulations require the
Commissioner to evaluate each claim for benefits using a five-step sequential
analysis. 20 C.F.R. §§ 404.1520; 416.920. The burden rests on the claimant
through the first four steps 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 can perform
other work. Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015); Monroe, 826
F.3d at 180.
Under 42 U.S.C. § 405(g), judicial review of a final decision of the
Commissioner denying disability benefits is limited to whether substantial
evidence exists in the record as a whole to support the Commissioner’s
findings, and whether the Commissioner’s final decision applies the proper
legal standards. Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). 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 [Commissioner].” Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996). 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 based on the
correct application of the law. Id.
V. Discussion
A. Decision of the VA
In making the disability determination in this matter, the ALJ was
required to consider all relevant record evidence, including disability decisions
rendered by other agencies. SSR 06-03p, 2006 WL 2329939.3 The Fourth
Circuit held in Bird v. Commissioner of Social Sec, Admin. that, generally, “the
[Commissioner] must give substantial weight to a VA disability rating” in
making a disability determination, though “an ALJ may give less weight to a
VA disability rating when the record before the ALJ clearly demonstrates that
such a deviation is appropriate.” 699 F.3d 377, 343 (4th Cir. 2012). “[I]n order
to demonstrate that it is appropriate to accord less than substantial weight to
[a VA decision], an ALJ must give persuasive, specific, valid reasons for doing
so that are supported by the record.” Woods v. Berryhill, 888 F.3d 686, 692 (4th
Cir. 2018); see also Kiser v. Saul, 821 Fed. Appx. 211, 215 (4th Cir. 2020)
(unpubl.) (same).
“For example, an ALJ could explain which aspects of the prior agency
decision he finds not credible and why, describe why he finds other evidence
3 For claims filed on or after March 27, 2017, the Commissioner will not analyze a
disability decision made by another agency. 2017 WL 1105348. Plaintiff filed his
application prior to March 27, 2017.
more credible, and discuss the effect of any new evidence made available after”
the prior agency decision. Woods, 888 F.3d at 692. Without such an
explanation by the ALJ, a reviewing court “cannot engage in meaningful
review.” Id. at 693.
Here, the VA determined that, effective December 1, 2016, Plaintiff was
100% disabled. See AR 1966 (July 12, 2017 correspondence certifying Plaintiff
was receiving service-connected disability compensation). A September 17,
2016 decision from the VA set forth Plaintiff’s various conditions and assigned
specific disability percentages for each. AR 114-126. With respect to Plaintiff’s
PTSD, the VA assigned a 70% disability rating based on, among other things,
Occupational and social impairment, with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking, or mood…. Difficulty in adapting
to stressful circumstances…. Difficulty in adapting to
work. Inability to establish and maintain effective
relationships…. Difficulty in adapting to a worklike
setting…
AR 116.
The ALJ did not specifically cite to or discuss the findings set out in the
VA’s September 17 decision, and instead only cited the July 12 correspondence
certifying that Plaintiff was receiving service-connected disability
compensation. See AR 2013.
In assigning “little weight” to the VA decision, the ALJ explained that
the VA “has a different definition for disability than the Social Security
Administration.” AR 2013. Additionally, the ALJ stated that “[a]lthough the
Court in Bird held that the Department of Veterans Affairs disability rating
must be accorded substantial weight in Social Security Disability proceedings,”
“less weight may be given when the record, as in this case, clearly
demonstrates that such a deviation is appropriate, for reasons discussed
throughout this decision.” Id.
Respectfully, however, merely stating that the VA’s disability decision
was based on different standards does “not amount to persuasive or specific
reasons justifying a decision to give less than substantial weight to the
finding.” See Woods, 888 F.3d at 693; see also Wilson v. Saul, No. 3:18-cv-
00455-MR, 2019 WL 4727911, at *5 (W.D.N.C. Sept. 26, 2019) (“The general
statement that the VA and SSA disability determinations may differ in theory
and therefore are of limited relevance, is simply not sufficient”); Jenkins v.
Berryhill, No. 1:18-cv-00050-MR, 2019 WL 1317730 at *5 (W.D.N.C. March
22, 2019) (“For the ALJ to enumerate all the ways that VA and SSA disability
determinations may differ in theory is simply not sufficient”).
Further, although the ALJ stated that the record “clearly demonstrated”
that deviation from the VA’s decision was appropriate, the ALJ did not
specifically identify the records on which that conclusion was based. See
Wilson, 2019 WL 4727911, at *5 (ALJ’s statements regarding Plaintiff’s
conservative treatment, mild physical examinations, and reported
improvements, which were unsupported by any citation, were insufficient to
“clearly demonstrate” deviation from the requirement that the VA decision be
afforded substantial weight); Dixon v. Berryhill, No. 3:16-CV-254-MR, 2017
WL 4248812, at *8 (W.D.N.C. Sept. 25, 2017) (“the ALJ set forth no analysis to
support the conclusory finding of inconsistency of the VA rating with other
evidence of record. The Court cannot be left to guess regarding the basis of the
ALJ's conclusions on this issue”); Northen v. Colvin, No. 1:15CV445, 2016 WL
5956636, at *4 (M.D.N.C. Oct. 12, 2016) (remanding where the ALJ
“summarily dismissed the VA’s conclusion that Plaintiff is 100% disabled
without either parsing that conclusion into its component findings or
considering the rationale behind those findings”).
In sum, the ALJ’s failure to explain her consideration of the VA decision
more fully does not allow for meaningful review, and therefore the undersigned
will recommend remand on this basis.
B. Function by Function Analysis
Plaintiff contends that because the ALJ did not conduct a function-by-
function analysis of his mental limitations, she failed to consider his social
limitations and ability to interact with others adequately. Doc. 13 at 9-16.
When developing Plaintiff’s RFC, the ALJ assigned “significant weight”
to the opinion of Dr. Margaret Barham, a state agency psychological
consultant. AR 2012 (citing AR 95-97). Dr. Barham determined that Plaintiff
was moderately limited in his ability to interact appropriately with the general
public, his ability to accept instructions and respond appropriately to criticism
from supervisors, and his ability to get along with coworkers. AR 96-97. She
concluded that Plaintiff was “capable of interacting w/others in a low-stress
work setting.” AR 97.4
Plaintiff’s RFC limited him to work that does not require interaction
with the general public and “no tandem work.” AR 2003. No limitation was
included regarding the need for a low-stress work setting, and the ALJ did not
discuss Dr. Barham’s opinion in this regard.
An ALJ “may satisfy the function-by-function analysis requirement by
referencing a properly conducted analysis of state agency consultants.” Herren
v. Colvin, 1:15-cv-2-MOC, 2015 WL 5725903, at *5 (W.D.N.C. Sept. 30, 2015)
(collecting cases); see also SSR 96-6p, 1996 WL 374180, at * 2 (July 2, 1996)
(state agency consultants “are highly qualified ... physicians and psychologists
who are experts in the evaluation of medical issues in disability claims....”);
Stamey v. Berryhill, No. 1:18-cv-00062-FDW-DSC, 2019 WL 937331, at *3
(W.D.N.C. Feb. 26, 2019) (“an ALJ may satisfy the function-by-function
4 Similarly, Dr. Gregory Villarosa, a consultative examiner, conducted a mental
status examination of Plaintiff and concluded that Plaintiff “would likely have
significant problems dealing with the stress and pressures associated with day-to-
day work activity.” AR 1087. The ALJ discussed Dr. Villarosa’s findings, but she did
not state how she weighed those findings. See AR 2008-2013.
requirement by referencing a properly conducted function-by-function analysis
of state agency consultants”) (citing Settlemyre v. Colvin, No. 5:14–cv–00199–
MOC, 2015 WL 5457950, at *4 (W.D.N.C. Sept. 16, 2015); Linares v. Colvin,
No. 5:14-cv-00120, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015)).
Here, however, it appears that although the ALJ assigned “significant
weight” to Dr. Barham’s opinion, the ALJ did not adopt all of Dr. Barham’s
findings with respect to Plaintiff’s social limitations and did not otherwise
explain why such limitations were unnecessary. See Phillips v. Saul, No. 3:19
CV 167 MR WCM, 2020 WL 3066643 at *5 (W.D.N.C. April 27, 2020), (“While
the ALJ was entitled to rely on the function-by-function assessment provided
by the state agency consultants, the ALJ failed to explain which functional
limitations assigned by the agency consultants were not restrictive enough
based on specific objective medical evidence…. The ALJ is required to build a
logical bridge from the evidence of record to his conclusion”).
Accordingly, the undersigned additionally recommends the case be
remanded on this basis.
VI. Recommendation
The undersigned respectfully RECOMMENDS that Plaintiff's Motion for
Summary Judgment (Doc. 12) be GRANTED, and that the Commissioner’s
Motion for Summary Judgment (Doc. 15) be DENIED.
Signed: October 15, 2021
od ao Z
W. Carleton Metcalf / ey.
United States Magistrate Judge alll J
11
Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States
Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the presiding District Judge will preclude the parties
from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140
(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).