Opinion
No. 5:16-CV-00762-FL
07-24-2017
John Carter, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff John Carter instituted this action on August 24, 2016, to challenge the denial of his application for social security income. Carter claims that the Administrative Law Judge ("ALJ") Lisa Hall erred in failing to properly explain why she did not give substantial weight to a disability decision rating from the Department of Veterans Affairs ("VA"). He also argues that new and material evidence warrants remand. Both Carter and Defendant Nancy Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 14, 17.
After reviewing the parties' arguments, the court has determined that ALJ Hall erred in failing to sufficiently explain why she gave little to no weight to the VA's disability finding. Additionally, the new and material evidence Carter submitted warrants remand of the matter for further consideration. Therefore, the undersigned magistrate judge recommends that the court grant Carter's motion, deny Berryhill's motion, and remand the matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
On June 25, 2009, Carter filed applications for disability benefits and supplemental security income. In both applications, Carter alleged a disability that began on February 20, 2009. After his claim was denied at the initial level and upon reconsideration, Carter appeared at a hearing before an ALJ to determine whether he was entitled to benefits. The ALJ determined that Carter was not entitled to benefits because he was not disabled. Tr. at 11-19.
Carter filed an unsuccessful appeal to the Appeals Council and thereafter filed a complaint in this court, which remanded the action by Order dated January 21, 2014. See Carter v. Colvin, Case No. 5:12-cv-736-FL (E.D.N.C. 2014), D.E. 28. Following remand, Carter appeared before ALJ Hall for a second hearing. ALJ Hall again determined Carter was not entitled to benefits because he was not disabled. Tr. at 613-21.
ALJ Hall found that Carter suffered from degenerative disc disease, which qualified as a severe impairment. Id. at 615. ALJ Hall found that Carter's impairment did not meet or equal a Listing impairment. Id. at 616. She then determined that Carter had the RFC to perform a reduced range of sedentary work. Id. Carter can lift, carry, push, and pull up to ten pounds. Id. He can stand or walk for up to two hours in an eight-hour workday, and he can sit for six hours in an eight-hour workday. Id. He needs to use a cane when standing or walking. Id. Finally, Carter can occasionally engage in postural activities. Id.
ALJ Hall concluded that Carter is unable to perform his past relevant work as an electronics technician. Id. at 620. However, considering his age, education, work experience, and RFC, ALJ Hall found that there were jobs that existed in significant numbers in the national economy that Carter was capable of performing. Id. at 620-21. These jobs included: surveillance system monitor, call out operator, and order clerk. Id. Thus, ALJ Hall found that Carter was not disabled. Id. at 621.
After unsuccessfully seeking review by the Appeals Council, Carter commenced this action on August 24, 2016. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to the determination of whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Carter's history of back pain dates back several years. By April 2009, he sought treatment at the Durham VA Medical Center for back pain radiating down his right leg. Tr. at 297-99. Dr. Mark Cavaliere diagnosed Carter with lumbar radiculopathy, limited Carter to standing for no more than four hours, and restricted him from heavy lifting. Id. The following month, Carter went to the Emergency Department complaining of severe right leg pain. Id. at 293-95. He reported that he stumbled frequently and had fallen twice. Id. An examination revealed bilateral leg spasms, intact strength, and negative straight leg raises. Id. An MRI of Carter's lumbar spine showed multi-level facet arthropathy from the L3 thru S1 levels of his spine. Id. at 343.
Providers prescribed medication that helped with Carter's pain, but it caused adverse side effects. Id. at 286-89, 291. A June 2009 examination demonstrated reduced sensation in the lower right extremity. Id. at 290-91. Although a nerve conduction study did not show radiculopathy, Carter continued to experience pain and numbness in his right leg. Id.
In August 2009, Carter started physical therapy and was given a TENS unit. Id. at 316. Treatment records reflect he did not use an ambulatory device but he did limp. Id. Later that month, Dr. Mark Heffington at the VAMC examined Carter, who described constant pain in his lower back, right buttock, and right leg. Id. at 589-94. He rated the pain as eight out of ten and reported that the TENS unit provided temporary relief. Id. Examination showed antalgic gait, reduced spine extension, positive straight leg raise, and positive Lesegue's sign. Id. Dr. Heffington diagnosed intervertebral disk syndrome ("IVDS") involving the L4-L5 nerve roots and the right sciatic nerve. Id.
Dr. Enrique Manana, Carter's primary care provider, examined him in November 2009. Id. at 451-52. Carter reported stiffness, spasms, and pain in his back that radiated to his right leg. Id. Carter rated the pain as moderate to severe. Id. Dr. Manana observed decreased range of motion. Id. An MRI the following month did not show a compressive lesion which would respond to surgical intervention. Id. at 442. Carter's back and leg pain with numbness continued. Carter rated this pain as eight out of ten. Id. at 443-49. He displayed positive straight leg raise on examination. Id.
In January 2010, Carter rated his pain as eight or nine out of ten with activity and five out of ten with rest. Id. at 437-40. Examination showed moderate limp, reduced strength, limited extension, and a positive straight leg raise. Id. Providers assessed Carter with low back pain with a possible nerve impingement. Id.
Later that month, the VA determined that Carter was partially disabled due to his sciatic nerve neuropathy, which included pain and numbness in his lower extremity, which had a service-connected rating of ten percent. Id. at 202-05. Carter was also assigned a ten percent service-connected rating for his IVDS. Id. The determination noted that Carter's IVDS did not result in complete incapacitation but it caused him difficulty with sitting, standing, lifting, bending, and squatting and that he experienced loss of balance and falls. Id.
Dr. Marana examined Carter in April 2010 for decreased range of motion as well as neck pain and stiffness following a motor vehicle accident. Id. at 453-56. In May, Dr. Marana opined that Carter's back and leg pain were interfering with his activities of daily living and impacting his ability to function. Id. at 457-67. He continued to display stiffness in his neck and back, and Dr. Marana advised Carter against heavy lifting. Id.
A June 2010 myelogram revealed moderate to severe right facet arthropathy at L5-S1 with facet osteophyte formation contacting and anteriorly displacing the traversing right S1 nerve root. Id. at 369-70. A neurological evaluation noted that Carter had worsening back pain which was radiating to his right leg and causing numbness. Id. at 360. Treatment notes also reflect that Carter reported dropping objects and having occasional neck pain. Id. Examination showed an asymmetrical sensory findings with decreased right L4-S1 dermatome sensory perception. Id. at 361.
In August 2010, Dr. Marana issued an opinion on Carter's functional capabilities. Id. at 376-79. Noting Carter's diagnosis of degenerative joint disease, based on his MRI and CT myelogram, which caused constant low back pain and leg pain, Dr. Marana remarked that his exam findings included a reduced range of motion, positive straight leg raise, and muscle spasms. Id. Dr. Marana opined that Carter could sit for ten minutes, stand or walk for 15 minutes at a time and for no more than two hours in an eight-hour workday, and would need to shift positions at will. Id. He also would need to elevate his legs 50% of the time when sitting, he could rarely lift less than ten pounds, and he could be expected to miss more than four days per month of work due to his symptoms. Id. Emma Battle, Carter's treating physicians assistant at the VAMC, also offered an opinion stating that he could not engage in heavy lifting or stand for more than three to four hours in an eight-hour workday. Id. at 441-42.
An MRI taken that month revealed cervical and thoracic degenerative changes as well as what appeared to be a thoracic cyst. Id. at 358-59. An October 2010 CT scan showed impedance of free flow of the spinal fluid at T7 consistent with an adhesion or arachnoid cyst in Carter's spine. Id. at 362-63. Carter continued to report worsening pain, numbness in his back and legs, and difficulty with fine motor skills. Id. at 355. Examination findings included weakness in the right hip with reduced flexion and extension, hyperactive reflex in the right knee, sensory loss at the L3-4 and L5-Sl levels, and "significantly decreased sensory changes in the right leg." Id.
In February 2011, Carter again reported low back pain which radiated into his right hip, leg, and ankle, as well as left leg pain. Id. at 511-14. He rated his pain as seven out of ten. Id. Examination revealed pain with palpitation and a positive straight leg raise. Id. Carter continued to report low back and leg pain in August 2011, October 2012, and December 2012. Id. at 1324, 1337, 1357-58. Examinations noted tenderness to palpitation, positive straight leg raise, and difficulty walking, for which providers prescribed a cane. Id. at 1324-25, 1358.
In January 2013, Carter reported to his providers that nothing relieved his pain symptoms. Id. at 1297. An MRI revealed narrowing of the spinal cord at the T7 level. Id. On exam, he displayed weakness and reduced sensation in his right leg with limited range of motion. Id. at 1298. Providers noted he used a cane to ambulate. Id. The following month, treatment notes reflect continued reports of persistent back and right leg pain that worsened with activity. Id. at 865. Records also state that Carter uses a cane because "he feels he will stumble" without it. Id. Examination again found reduced range of motion as well as reduced strength and sensation. Id. at 869.
In March 2013, physical therapy notes stated that Carter displayed reduced strength in his right leg with limited range of motion. Id. at 958. Records also reflect that physical therapy was unsuccessful for Carter. Id. at 959. Carter's sciatica persisted through 2013. Id. at 946, 1276. In 2014, treatment notes reflect worsening back spasms for which medication had not been effective. Id. at 1242. In December, providers again remarked that his sciatic pain was worsening. Id. at 1060. Examination found positive straight leg raise, decreased sensation, and antalgic gait for which Carter used a cane. Id. at 1061.
D. Veterans Affairs Disability Rating
Carter contends that ALJ Hall erred in failing to appropriately consider his VA disability rating. The Commissioner asserts that ALJ Hall properly explained why the VA disability finding warranted little to no weight in her disability analysis. The undersigned concludes that ALJ Hall's failure to sufficiently explain the reasons weight she accorded little to no weight to this evidence warrants remand.
As provided by 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 or blind is not binding on" the Social Security Administration. 20 C.F.R. § 404.1504. Rather, "the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner." SSR 06-03p.
However, the Fourth Circuit has addressed the value of disability findings by other agencies. Bird v. Commissioner of Social Security Administration, 699 F.3d 337 (4th Cir. 2012). The Fourth Circuit noted that while another agency's disability determination is not binding on the SSA, "another agency's disability determination 'cannot be ignored and must be considered.'" Bird, 699 F.3d at 343. The Fourth Circuit observed that often times the disability assessments of other agencies such as the VA serve the same governmental purpose of providing benefits to persons unable to work, evaluate a claimant's ability to perform full-time work, analyze a claimant's functional limitations, and require extensive medical documentation to support the claims. Bird, 699 F.3d at 343. The Fourth Circuit therefore concluded that "in making a disability determination, the SSA must give substantial weight to a VA disability rating[.]" Id. Assigning less weight to another governmental agency's disability determination may be warranted "when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.
The failure to consider the VA disability determination was one of the grounds upon which this court previously found warranted remand of Carter's claim for further consideration. Upon remand, ALJ Hall noted that the VA initially assigned Carter an overall or combined rating of 30 percent for his back. Tr. at 619. She then observed that his rating was subsequently increased to 50 percent. Id. ALJ Hall afforded little to no weight to this decision, finding that it was inconsistent with the objective findings and treatment reports, particularly the "consistently stable and mild exam findings[.]" Id.
Despite ALJ Hall's proffered reasons to deviate from the VA's disability assessment and assign less than substantial weight to its findings, the undersigned finds that the explanation does not support the conclusion nor "clearly demonstrate[]" that deviation is proper. While Bird permits an ALJ to assign lesser weight to a VA disability finding, the reasons for doing so must be sound. The presumption of substantial weight due such determinations is not rebutted where, as here, the ALJ's explanation merely concludes that the VA disability finding is inconsistent with stable, mild exam findings, without identifying the specific inconsistencies.
ALJ Hall's conclusion also appears to extrapolate early, less significant findings and exclude Carter's repeated reports of consistent, worsening symptoms and progressive examination findings. For example, Carter displayed negative straight leg raises, intact sensation, and was noted to be independently ambulatory. Tr. at 617. However, subsequent treatment notes regularly reflect positive straight leg raises, decreased sensation, and reduced range of motion. By December 2012, providers prescribed Carter a cane and subsequent records reflect he used a cane to ambulate. Id. at 618.
Additionally, Carter consistently reported significant pain symptoms. Objective findings demonstrated multi-level facet arthropathy from the L3 thru S1 levels of his spine, (id. at 343); a June 2010 myelogram revealed moderate to severe right facet arthropathy at L5-S1 with facet osteophyte formation contacting and anteriorly displacing the traversing right S1 nerve root, (id. at 369-70); an October 2010 CT was consistent with an adhesion or arachnoid cyst in the spine, (id. at 358-59); a January 2013 MRI revealed narrowing of the spinal cord at the T7 level. (id. at 1297).
The VA's 2014 finding notes that Carter's right leg condition, described as right lower extremity sciatic nerve neuropathy, causing pain and numbness, increased in severity, changing his disability percentage for this condition from 20% to 40% effective March 12, 2012. Id. at 810. A subsequent decision by the Board of Veterans' Appeals, dated July 19, 2016, increased Carter's disability rating for his IVDS from 20% to 40%. D.E. 16. This determination, coupled with Carter's 40% sciatic nerve neuropathy, resulted in a finding of total disability individually unemployable ("TDIU") from March 22, 2012 to August 23, 2015. Id.
The overall record would seem to support a finding that Carter's conditions deteriorated, a conclusion which finds corroboration in the VA disability rating, which increased his disability rating in 2014 and again in 2016. Clearly the VA has determined that Carter's impairments have progressed and his functional abilities have been reduced. Importantly, the 2016 VA disability rating cites specific, objective clinical findings to support in increase in Carter's disability rating. D.E. 16. Given that the VA premised its disability finding upon the same records ALJ Hall concluded showed only mild and stable findings, it is difficult to determine how opposite conclusions resulted where little is offered to explain the divergence.
Mindful of the parallel purpose and inquiry of the VA and SSA programs, coupled with the substantial weight presumed due to the VA finding under Bird, further consideration of the VA disability determinations is warranted in this matter. See Northern v. Colvin, Case No. 1:15-cv-445, 2016 WL 5956636, at *4 (M.D.N.C. Oct. 12, 2016) (remanding case where ALJ gave VA disability determination limited weight, noting noted essentially normal-to-moderate physical findings, normal mental status examination, wide and varying activities of daily living, and a GAF score reflective of only moderate limitations. The court found that ALJ "summarily dismissed" VA conclusion finding that claimant was 100% disabled "without either parsing that conclusion into its component findings or considering the rationale behind those findings."); Gannon v. Colvin, C/A No. 9:15-3250-RMG-BM, 2016 WL 5339698, at *6-7 (D.S.C. Aug. 22, 2016) (the ALJ's minimal discussion of the VA rating was not sufficient to clearly demonstrate that a deviation from a finding of substantial weight was appropriate, and remanded for a more proper weighing pursuant to the methodology outlined in Bird), adopted by 2016 WL 5338504 (Sept. 21, 2016); Riggins v. Colvin, Case No. 0:15-2429-BHH-PJG, 2016 WL 4249509, at *4 (D.S.C. July 25, 2016) (remanding matter where "the ALJ's limited reasons and discussion as to the finding that the VA determination was entitled to little weight because court could not determine if the conclusion was supported by substantial evidence). While the ALJ may conclude that these decisions are not entitled to the substantial weight, any reason to deviate must be sufficiently explained to allow a reviewing court to determine whether that finding is supported by substantial weight.
In sum, the lack of sufficient reasoning to deviate from the VA disability finding and decline to afford substantial weight thereto warrants remand under Bird.
On remand, the ALJ might well conclude on this record that Carter's approval for VA disability benefits should be given significant, lesser, or no weight. But that analysis is for the ALJ to perform in the first instance inasmuch as it is not the role of a reviewing court to substitute its own analysis of the evidence. Persaud v. Colvin, No. 2:12-cv-661, 2014 WL 198922, at *11 (E.D. Va. Jan. 14, 2014). --------
E. New and Material Evidence
Carter also contends that the 2016 VA disability determination constitutes new evidence which warrants further consideration of his claim. The Commissioner asserts that this evidence is duplicative of the evidence previously considered by ALJ Hall. The court finds that the 2016 VA disability rating requires further consideration.
Sentence six of 42 U.S.C. § 405(g) ("sentence six") provides for remand when evidence is submitted for the first time at the district court level. It permits remand, however, "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see Stanley v. Colvin, No. 7:12-CV-134-FL, 2013 WL 2447850, at *7 (E.D.N.C. Jun. 5, 2013); Edwards v. Astrue, No. 7:07CV48, 2008 WL 474128, at *8 (W.D. Va. Feb. 20, 2008).
There are accordingly three distinct requirements under sentence six. First, the evidence must be new. "Evidence is deemed new if it is not duplicative or cumulative of evidence already in the record." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991); Stanley, 2013 WL 2447850, at *7. Second, the evidence must be material. Evidence is material if there is a reasonable possibility that it would have changed the outcome. Wilkins, 953 F.2d at 96. Third, there must be good cause for failing to submit the evidence earlier. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985). The burden of showing that the requirements of sentence six are met rests with the claimant. See Fagg v. Chater, No. 95-2097, 1997 WL 39146, at *2 (4th Cir. Feb. 3, 1997); Keith v. Astrue, No. 4:11CV0037, 2012 WL 2425658, at *2 (W.D. Va. Jun. 22, 2012) ("The burden of demonstrating that all of the Sentence Six requirements have been met rests with the plaintiff."), adopted by 2012 WL 4458649 (Aug. 9, 2012).
Here, the 2016 VA disability finding qualifies as "new" because it is not duplicative or cumulative of other evidence already in the record. As noted above, the decision cites numerous clinical and objective findings for the VA's disability rating. While the medical evidence it relies upon were part of the record before ALJ Hall, the decision itself is relevant to the overall disability determination by the SSA.
Additionally, the 2016 VA disability finding is material because it overlaps the period of time at issue before ALJ Hall. As noted above, the comparable evaluations by the VA and SSA of Carter's disability are based upon the same medical record and analyze his functional abilities and impairments. See Bird, 699 F.3d at 343. The fact that this most recent disability rating by the VA further confirms its previous assessments and concludes that Carter's impairments preclude his ability to perform full-time work in the national economy on a sustained and continuing basis is germane to SSA's analysis of the same issue.
Finally, Carter has good cause for not presenting it earlier because the 2016 VA disability finding was generated after the Appeals Council declined review.
Because the undersigned finds that remand is warranted for further explanation of the weight due to the VA disability determination, it is appropriate that the Commissioner also consider the 2016 VA disability finding in revisiting its disability determination.
III. Conclusion
For the forgoing reasons, the court recommends that the court grant Carter's Motion for Judgment on the Pleadings (D.E. 14), deny Berryhill's Motion for Judgment on the Pleadings (D.E. 17), and remand this matter to the Commissioner for further consideration.
Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: July 24, 2017
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE