# Johnson v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · January 24, 2020

URL: https://www.frixlaw.com/law-library/cases/9989193

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** January 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ISAAC LAVERN JOHNSON, )
)
Plaintiff )
)
vs. ) Case No. 2:18-cv-01495-HNJ
)
NANCY A. BERRYHILL, )
Acting Commissioner of )
Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Isaac Lavern Johnson (“Johnson”) seeks judicial review pursuant to 42
U.S.C. § 405(g) of an adverse, final decision of the Commissioner of the Social Security
Administration (“Commissioner” or “Secretary”), regarding his claim for Disability
Insurance Benefits (DIB). The undersigned carefully considered the record, and for
the reasons expressed herein, the court REVERSES the Commissioner’s decision and
REMANDS for further consideration of the Department of Veterans Affairs’ disability
rating.1

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the
parties have voluntarily consented to have a United States Magistrate Judge conduct any and all
proceedings, including the entry of final judgment.
LAW AND STANDARD OF REVIEW
To qualify for benefits, the claimant must be disabled as defined by the Social

Security Act and the Regulations promulgated thereunder. The Regulations define
“disabled” as the “inability to do 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 (12) months.” 20 C.F.R. §§ 404.1505(a), 416.905(a). To establish an
entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden rests

upon the claimant at the first four steps of this five-step process; the Commissioner
sustains the burden at step five, if the evaluation proceeds that far. Washington v. Comm’r
of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).

In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must prove the
impairment is “severe” in that it “significantly limits [the] physical or mental ability to
do basic work activities . . . .” Id. at §§ 404.1520(c), 416.920(c).
At step three, the evaluator must conclude the claimant is disabled if the
impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part

404, Subpart P, App. 1, §§ 1.00–114.02. Id. at §§ 404.1520(d), 416.920(d). If a claimant’s
impairment meets the applicable criteria at this step, that claimant’s impairment would
prevent any person from performing substantial gainful activity. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii), 404.1525, 416.925. That is, a claimant who satisfies

steps one and two qualifies automatically for disability benefits if the claimant suffers a
listed impairment. See Williams v. Astrue, 416 F. App’x 861, 862 (11th Cir. 2011) (“If, at
the third step, [the claimant] proves that [an] impairment or combination of
impairments meets or equals a listed impairment, [the claimant] is automatically found

disabled regardless of age, education, or work experience.”) (citing 20 C.F.R. § 416.920;
Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step, where

the claimant demonstrates an incapacity to meet the physical and mental demands of
past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). At this step, the evaluator
must determine whether the claimant has the residual functional capacity (“RFC”) to

perform the requirements of past relevant work. See id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant’s impairment or combination of impairments does
not prevent performance of past relevant work, the evaluator will determine the
claimant is not disabled. See id.
If the claimant succeeds at the preceding step, the fifth step shifts the burden to
the Commissioner to provide evidence, considering the claimant’s RFC, age, education

and past work experience, that the claimant is capable of performing other work. 20
C.F.R. §§ 404.1520(g), 416.920(g). If the claimant can perform other work, the
evaluator will not find the claimant disabled. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v); see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the claimant cannot

perform other work, the evaluator will find the claimant disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(g), 416.920(g).
The court reviews the ALJ’s “decision with deference to the factual findings and
close scrutiny of the legal conclusions.” Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin.,

783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991)). The court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the proper legal
standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Although

the court must “scrutinize the record as a whole . . . to determine if the decision reached
is reasonable . . . and supported by substantial evidence,” Bloodsworth v. Heckler, 703 F.2d
1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not decide the facts anew,

reweigh the evidence, or substitute [its] judgment” for that of the ALJ. Winschel, 631
F.3d at 1178 (citations and internal quotation marks omitted). “Substantial evidence is
more than a scintilla and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Id. (citations omitted). Nonetheless, substantial
evidence exists even if the evidence preponderates against the Commissioner’s decision.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Although the court reviews the

ALJ’s decision for substantial evidence, the court reviews her application of legal
principles de novo. Id.
FACTUAL AND PROCEDURAL HISTORY
Mr. Johnson, age 42 at the time of the ALJ hearing, protectively filed an

application for a period of disability and disability insurance benefits on December 9,
2015, alleging disability with an onset date of August 1, 2010. (Tr. 86, 12). The
Commissioner denied his claims, and Johnson timely filed a request for a hearing on
January 15, 2016. (Tr. 12). An Administrative Law Judge (“ALJ”) held a hearing on

October 4, 2017, (tr. 82–95), and issued an opinion denying Johnson’s claim on April
5, 2018. (Tr. 9–25).
In his opinion, the ALJ first determined that Johnson met the Social Security
Act’s insured status requirements through March 31, 2014. (Tr. 14). Applying the five-

step sequential process, the ALJ found at step one that Johnson had not engaged in
substantial gainful activity from his alleged onset date of August 1, 2010, through the
date of the ALJ’s opinion, April 5, 2018. Id. At step two, the ALJ found that Johnson

suffers from the following severe impairments: scoliosis; lumbar degenerative joint
disease; human immunodeficiency virus; history of left upper extremity fracture;
anxiety; depression; substance abuse; personality disorder; and post-traumatic stress
disorder. Id. At step three, the ALJ concluded that Johnson’s impairments or
combination of impairments did not meet or medically equal any impairment for
presumptive disability listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15).

Next, the ALJ found that Johnson exhibited the residual functional capacity
(“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) but with certain
limitations.2 (Tr. 17). At step four, the ALJ found that Johnson is unable to perform
any past relevant work. (Tr. 23). At step five, the ALJ relied upon the testimony of a

vocational expert to find Johnson can perform other work that exists in significant
numbers in the national economy. (Tr. 23–24).
Johnson timely requested review of the ALJ’s decision. On August 22, 2018, the
Appeals Council denied review, which deems the ALJ’s decision as the Commissioner’s

final decision. On September 24, 2018, Johnson filed his pro se complaint with the court
seeking review of the ALJ’s decision. (Doc. 1).

2 The ALJ described the following limitations:

[Johnson] could perform unskilled work not requiring complex
instructions or procedures; could not climb ropes, ladders, or
scaffolds; could not work at unprotected heights or with hazardous
machinery; could occasionally stoop, crouch, crawl, or kneel; could not
tolerate concentrated exposure to dust, fumes, or other respiratory
irritants; could frequently reach overhead with left upper extremity;
could frequently interact with co-workers and supervisors; and could
have occasional contact with the general public.

(Tr. 17).
ANALYSIS
In this appeal, Johnson argues the ALJ improperly considered an Office of

Personnel Management (OPM) letter awarding Johnson disability benefits and a
Department of Veteran Affairs (VA) disability rating of 70 percent. In addition, the
court construes Johnson’s complaint to seek a Sentence Six remand based upon a
January 22, 2019, VA Rating Decision awarding Johnson individual unemployability

compensation. Finally, Johnson faults the ALJ for failing to consider a 2006 Appeals
Council remand order issued in a prior disability benefits case. For the reasons
discussed below, the court finds merit in Johnson’s contention that the ALJ evaluated
improperly the VA disability rating. The court will remand the case to the ALJ to

further evaluate the rating.
Because remand is warranted on this basis, the court will not address Johnson’s
allegations regarding the OPM letter and the January 22, 2019, VA Rating Decision. See
Demenech v. Sec’y of the Dep’t of HHS, 913 F.2d 882, 884 (11th Cir. 1990) (per curiam)

(because one issue plaintiff raised warranted remand, the court need not consider the
remaining issues); accord Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (per
curiam); Hall v. Astrue, No. CV-11-S-3540-J, 2012 U.S. Dist. LEXIS 86838, at *12 n.8

(N.D. Ala. June 22, 2012).
THE ALJ DID NOT PROPERLY CONSIDER THE VA DISABILITY
RATING

An ALJ’s evaluation of another agency’s disability determination involves the
application of legal standards; thus, the court reviews such evaluation de novo. See
Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x 902, 904 (11th Cir. 2016)
(“Because [the weigh accorded to another agency’s disability determination] is about
the legal principles upon which the ALJ based his decision, we review it de novo.”)
(citing Moore, 405 F.3d at 1211). As provided at 20 C.F.R. § 404.1504 and further

explained in Social Security Ruling (“SSR”) 06-03p, “a determination made by another
agency that [the claimant is] disabled . . . is not binding on” the Social Security
Administration. SSR 06–03p, 2006 WL 2329939, at *6.3 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 must “evaluate all the evidence in the case record that may
have a bearing on [its] determination or decision of disability, including decisions by
other governmental and nongovernmental agencies . . . . Therefore, evidence of a

disability decision by another governmental or nongovernmental agency cannot be
ignored and must be considered.” Id. at *6. Moreover, “the adjudicator should explain

3 The SSA rescinded SSR 06-03p, effective March 27, 2017. 82 Fed. Reg. 15,263 (Mar. 27, 2017).
However, because SSR 06-03p constituted the relevant standard at the time of the ALJ’s decision, the
court reviews this matter using SSR 06-03p. See Duckworth v. Berryhill, 2018 U.S. Dist. LEXIS 132186,
at *19 n.6 (N.D. Ala. Aug. 7, 2018) (court evaluated the ALJ’s decision pursuant to SSR 06-03p because
SSR 06-03p applied to ALJ’s June 2016 decision).
the consideration given to these decisions in the notice of decision for hearing
cases. . . .” Id. at *7. Notwithstanding the guidance of SSR 06-03p, it is well settled in

the Eleventh that a disability determination rendered by another agency is entitled to
great weight. See Perez v. Colvin, 214 F. Supp. 3d 1200, 1208 (N.D. Ala. 2016) (“Eleventh
Circuit case law consistently holds that disability determinations from other
government agencies are entitled to great weight from the outset, and then, if there is

good cause, the ALJ may articulate why he or she depreciates that weight.”) (citing
Boyette v. Comm’r of Soc. Sec., 605 F. App’x 777, 779 (11th Cir. 2015); see also Rodriguez v.
Schweiker, 640 F.2d 682, 686 (5th Cir. 1981);4 Adams v. Comm’r of Soc. Sec., 542 F. App’x
854, 856 (11th Cir. 2013).

Thus, when an ALJ omits a discussion of another agency’s disability
determination, or the weight accorded such determination and the reasons therefor, a
court should reverse the Commissioner’s decision and remand for consideration and
evaluation of the other agency’s decision. See Perez, 214 F. Supp. 3d at 1208 (“Even if

the ALJ was not required to state explicitly that the OPM determination was entitled to
great weight, he failed to explain adequately why he gave only ‘consideration and some
form of weight’ to it. . . . The record here makes clear that the ALJ conducted no review

of the basis for the OPM’s decision.”); Gaithright v. Shalala, 872 F. Supp. 893, 899 (D.
N.M. 1993) (“Determinations of disability made by other government agencies are

4 The Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions decided prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
entitled to consideration by the Secretary. . . . The ALJ in this case did not consider
Plaintiff’s state disability benefits at all. Consequently, the ALJ erred in that respect.”)

(citation omitted); Batchelor v. Colvin, 962 F. Supp. 2d 864, 867 (E.D.N.C. 2013) (“This
court has repeatedly held that where an ALJ fails to mention disability determinations
by other governmental agencies, this constitutes error necessitating remand to the
Commissioner for further consideration and remand”); Trammell v. Berryhill, No.

1:16CV586, 2017 WL 3671177, at *7 (M.D.N.C. Aug. 24, 2017) (an ALJ does not satisfy
SSR 06-03p merely by mentioning an agency determination and stating it is
nonbinding); Dickens v. Colvin, No. 16-05018-CV-SW-RK, 2017 WL 1023361, at *3–5
(W.D. Mo. Mar. 16, 2017) (remand required due to ALJ’s failure to discuss records

underlying VA disability determination or reasons for rejecting VA disability
determination); Chriscoe v. Colvin, No. 1:13CV788, 2015 WL 4112442, at *15 (M.D.N.C.
July 8, 2015) (“[T]he ALJ failed to even mention Plaintiff’s Medicaid [disability] award
in his decision. Because, based on the record presented, the Court cannot determine

whether the ALJ considered and discounted the evidence on which the Medicaid
decision was based, the ALJ’s failure to consider the award of Medicaid benefits to the
Plaintiff cannot be said to constitute harmless error.”); Moore v. Colvin, No. 1:12–cv–

00739–MJD–JMS, 2013 WL 4584618 (S.D. Ind. Aug. 28, 2013); Freese v. Astrue, No.
8:06-CV-1839-T-EAJ, 2008 WL 1777722, at *3 (cursory statement by ALJ that FERS
disability determination was not binding and based on different laws and regulations
not supported by substantial evidence).
In this case, the VA assigned Johnson a combined disability rating of 70 percent
for his service-connected disabilities. (Tr. 1512–13). Specifically, the VA determined

that Johnson suffers from anxiety disorder (50%); major depressive disorder (50%); and
acquired immune deficiency syndrome (30%). (Tr. 1520–21). In formulating Johnson’s
RFC, the ALJ noted that Johnson “had a 70% service connected disability rating from
the Department of Veteran’s Affairs.” (Tr. 22). The ALJ accorded Johnson’s disability

rating little weight because “the disability determinations of other governmental
agencies are . . . not entitled to any particular weight,” and “the policies for rating
disability of [the VA] significantly differ from those used by the [SSA] for making a
finding regarding disability.” (Id.) The ALJ applied the incorrect legal standard and

improperly discounted Johnson’s VA disability rating.
As elaborated above, the Commissioner generally must accord great weight to
other agencies’ disability determinations. See Rodriguez, 640 F.2d at 686; Perez, 214 F.
Supp. 3d at 1208. Particularly relevant here, it is well established in this circuit that a

VA disability rating, though nonbinding, constitutes “evidence that should be
considered and is entitled to great weight.” Rodriguez, 640 F.2d at 686; accord Brown-
Gaudet-Evans, 673 F. App’x at 904. Furthermore, an ALJ must not only “seriously

consider and closely scrutinize the VA’s disability determination,” but must also “give
specific reasons if the ALJ discounts that determination.” Brown-Gaudet-Evans, 673 F.
App’x at 904 (citing Rodriguez, 640 F.2d at 686). Therefore, an ALJ cannot rely solely
upon differences between the VA and SSA disability determination standards to
discount a VA disability rating. See Daniels v. Berryhill, No. 3:16cv412-WC, 2017 WL
2177336, at *15 (M.D. Ala. May 17, 2017) (ALJ failed to meaningfully analyze a VA

disability rating by merely citing differences in the VA’s and SSA’s evaluation
processes); accord Dunham v. Colvin, No. 2:15-cv-622-GMB, 2017 WL 253979, at *8
(M.D. Ala. Jan. 19, 2017). “Such generalized dismissals of agency determinations are
insufficient to demonstrate that the ALJ ‘seriously considered [the] VA disability

rating.’” Butters v. Berryhill, No. 6:18-cv-00472-AKK, 2019 WL 3429243, at *13–14
(N.D. Ala. July 30, 2019) (quoting Brown-Gaudet-Evans, 674 F. App’x at 904).
In this case, the ALJ discounted Johnson’s VA disability rating in precisely the
manner the law proscribes. Asserting that the VA’s determination was “not entitled to

any particular weight,” the ALJ accorded the disability rating little weight solely because
the VA and SSA employ different standards for assessing the existence of a disability.
(Tr. 22). In his evaluation, the ALJ not only misstated the evidentiary value the law
assigns to VA disability ratings,5 but also failed to adequately articulate why he deviated

5 SSR 06-03p provides that “because other agencies may apply different rules and standards than we
do for determining whether an individual is disabled, this may limit the relevance of a determination
of disability made by another agency.” SSR 06-03p, 2006 WL 2329939, at *7. Although this statement
comports with the ALJ’s assertion that other agencies’ disability determinations “are not entitled to
any particular weight,” (tr. 22), the pronouncements of the Eleventh Circuit -- not those of SSR 06-
03p -- bind the ALJ. See Miller v. Comm’r of Soc. Sec., 246 F. App’x 660, 662 (11th Cir. 2007) (“[Social
Security] Rulings do not have the force and effect of the law or regulations . . . . A ruling may be
superseded, modified, or revoked by later legislation, regulations, court decision or rulings.”) (quoting
Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984)). Accordingly, this circuit’s rule that an ALJ must
accord great weight to another agency’s disability determination or provide an adequate explanation
for discounting it supersedes any contrary representation in SSR 06-03p.
from that standard. Accordingly, the ALJ failed to demonstrate that he considered the
VA disability rating with a sufficient degree of scrutiny. This failure warrants a remand

to allow the ALJ to give Johnson’s VA disability rating due consideration in accordance
with the law of this circuit. See Butters, 2019 WL 3429243, at *14 (remand warranted
where the ALJ concluded the VA disability rating did not bind his decision merely
because the SSA employs different disability determination standards); Dunham, 2017

WL 253979, at *8 (remand warranted where the ALJ accorded the VA disability
determination little weight solely because the VA’s and SSA’s disability criteria differ).
The court notes the record does not contain the VA determination letter
establishing Johnson’s disability rating for the relevant time period.6 Instead, Johnson’s

VA disability rating appears throughout medical evaluations that comprise his treatment
records. (Tr. 1491–92; 1497; 1521–23). The absence of the VA determination letter,
however, does not excuse the ALJ’s obligation to adequately justify the reasons for
according Johnson’s VA disability rating little weight. See Daniels, 2017 WL 2177336, at

*3–7.
Notably, in Daniels the court considered whether the absence of a VA
determination letter justified the ALJ’s otherwise improper evaluation of the plaintiff’s

VA disability rating. Id. at *6–7. The record in Daniels did not contain a VA

6 As discussed below, Johnson’s record in the instant appeal contains a January 22, 2019, VA Rating
Decision letter. However, this letter did not form part of the record before the ALJ because it issued
after the ALJ’s August 5, 2019, decision.
determination letter reflecting the plaintiff’s assigned disability rating. Id. at *6. Rather,
the plaintiff’s treatment records, like Johnson’s, contained medical evaluations

indicating his disability rating. The ALJ concluded the plaintiff’s VA disability rating
retained “little probative value” because the VA and SSA employ different disability
standards. Id. at *3. The court ruled that the ALJ failed to properly consider the VA
disability rating, notwithstanding the absence of the VA determination letter:

The absence of such record would undoubtedly impede the ALJ’s ability
to identify the reasons, if any, to discount the rating. Nonetheless, the
ALJ specifically considered the disability rating . . . , and afforded it little
weight, and did not rely upon a lack of tangible evidence in doing so. . . .
. . .
[I]t is clear to the undersigned that the ALJ failed to properly weigh the
disability rating from the VA as a matter of law. To the extent that the
Commissioner argues the discount was proper because the ALJ did not
have the actual VA disability rating before her, the argument is unavailing.

Id. at *6–7.
The instant case warrants the same conclusion. Accordingly, the court finds the
absence of the VA determination letter did not relieve the ALJ of his duty to accord the
VA disability rating great weight or provide specific reasons for discounting it. Id.; see
also Figueroa-Padilla v. Comm’r of Soc. Sec., No. 6:16-cv-1813-Orl-TBS, 2017 WL 3712483,
at *4 (M.D. Fla. Aug. 29, 2017) (the “lack of a detailed VA rationale” did not permit the
ALJ to discount a VA disability rating based solely upon the VA’s and SSA’s differing
standards) (citing Daniels, 2017 WL 2177336 at *7).
Finally, the court observes the ALJ considered Johnson’s VA medical records in
his decision. Specifically, the ALJ accorded good weight to the opinions rendered by
VA physicians Dr. James M. Flournoy and Dr. Katina Hebert, which reflected
Johnson’s 50 percent disability rating for major depression. (Tr. 1612, 1621). However,

the ALJ’s consideration of Johnson’s VA medical evidence neither satisfies nor negates
his duty to closely examine the VA disability rating itself and provide an adequate
justification for according it little weight. See Williams v. Barnhart, 180 F. App’x 902, 902
(11th Cir. 2006) (“[T]he ALJ’s prior decision addressed at some length [the claimant’s]

VA medical evidence[;] nonetheless, in its decision the ALJ should specifically also
consider and address the VA’s Rating Decision . . . .”); accord Burch-Mack v. Comm’r of
Soc. Sec., No. 8:15-cv-1167-T-JSS, 2016 WL 5087477, at *12–13 (M.D. Fla. Aug. 2,
2016); see also Boyette, 605 F. App’x 777 (ALJ implicitly assigned a VA disability

determination great weight by scrutinizing the decision and explaining in detail why it
could not be given controlling weight). Therefore, the ALJ’s failure to adequately
scrutinize the VA disability rating warrants reversal of the ALJ’s decision and remand
for proper consideration.

In summary, the ALJ’s failure to accord Johnson’s VA disability rating great
weight or adequately explain the reasons for discounting it warrants a remand of this
case. On remand, the ALJ should specifically consider the January 22, 2019, VA Rating

Decision granting Johnson individual unemployability, effective June 14, 2017. (Doc.
17 at 22–24).
Significantly, the VA based this rating upon the OPM’s March 14, 2011, finding
that Johnson was disabled – which finding pertains to the time period relevant to the
instant case. The Rating Decision states: “the evidence demonstrates you have been
unemployable due to service connected disability since March 14, 2011.” dd. at 24).
Furthermore, the Rating Decision notes the VA denied Johnson’s prior disability
application on September 8, 2014, and Johnson failed to appeal the denial. (Id) By
highlighting Johnson’s failure to appeal the 2014 adverse decision in its determination
that he has remained unemployable since March 14, 2011, the VA appears to suggest
its 2014 denial issued in error. Accordingly, the AL] should assess the January 22, 2019,
VA Rating Decision in re-evaluating Johnson’s disability.
CONCLUSION
For the foregoing reasons, the court REVERSES the Commissioner’s decision
and REMANDS the case for appropriate consideration of the Department of Veterans
Affairs’ disability rating.
DONE this 24" day of January, 2020.

4 N. fay (et
UNITED STATES MAGISTRATE JUDGE

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989193. Public record. Not legal advice.