Opinion
No. 5:19-CV-00264-D
07-27-2020
Sabrina M. Gouthier, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Sabrina Gouthier challenges Administrative Law Judge ("ALJ") Joseph Booth, III's denial of her application for social security income. Gouthier claims that ALJ Booth erred in (1) determining her residual functional capacity ("RFC"), (2) evaluating the medical opinion evidence, and (3) failing to accord proper weight to the disability rating by the Department of Veterans Affairs ("VA"). Both Gouthier and Defendant Andrew Saul, Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 26, 29.
After reviewing the parties' arguments, the court has determined that ALJ Booth erred in his determination. ALJ Booth's RFC determination fails to explain his findings on Gouthier's use of her upper extremities. ALJ Booth also erred in failing to weigh the medical opinions of Gouthier's treating providers. And the court cannot conclude that substantial evidence supports his reasons to accord less than substantial weight to the VA disability finding. And the undersigned cannot determine whether substantial evidence supports her RFC finding. The undersigned magistrate judge thus recommends that the court grant Gouthier's motion, deny the Commissioner's motion, and remand this matter to the Commissioner's 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
In April 2016, Gouthier applied for disability benefits, alleging a disability that began in January 2014. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Gouthier appeared before ALJ Booth for a hearing to determine whether she was entitled to benefits. ALJ Booth determined Gouthier had no right to benefits because she was not disabled. Tr. at 17-33.
Gouthier amended her disability onset date to March 2016. Tr. at 18.
ALJ Booth found that Gouthier's obesity, status post breast cancer with double mastectomy, reconstructive breast surgery with revision on the left side, carpal tunnel syndrome ("CTS"), sleep disturbance, anxiety disorder, affective disorder, adjustment disorder, and post traumatic stress disorder ("PTSD") were severe impairments. Tr. at 20. ALJ Booth also found that Gouthier's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Booth then determined that Gouthier had the RFC to perform light work with other limitations. Tr. at 23. She can frequently climb ramps and stairs but cannot climb ladders, ropes, or scaffolds. Id. Gouthier can balance, kneel, and crouch frequently and she can occasionally stoop and crawl. Id. She can frequently reach, handle, finger, feel, push, and pull with her bilateral upper extremities. Id. Gouthier may occasionally have exposure to vibration, moving, mechanical parts, or high, exposed places. Id.
Gouthier is limited to unskilled work, as defined by SSR 83-10, and she can have occasional interactions with supervisors, coworkers, and the public. Id. She cannot do production pace work on assembly lines. Id. Finally, Gouthier may have occasional changes to the work setting and the method of performing assigned work. Id.
ALJ Booth concluded that Gouthier could not perform her past relevant work as a denture model maker or stock supervisor. Tr. at 31. But considering her age, education, work experience, and RFC, ALJ Booth found that jobs existed in significant numbers in the national economy that Gouthier could perform. Tr. at 32. These jobs include laundry folder, mail clerk, and ticket marker. Id. Thus, ALJ Booth found that Gouthier was not disabled. Tr. at 33.
After unsuccessfully seeking review by the Appeals Council, Gouthier commenced this action in July 2019. D.E. 5.
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 determining 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)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. 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 ALJ must consider the factors in order. At step one, if the claimant is 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 presumed. But 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).
Gouthier challenges only the findings related to her physical abilities and limitations, so the undersigned limits a recapitulation of the medical evidence to her physical impairments, symptoms, and treatment.
In 2012, following a breast cancer diagnosis, Gouthier underwent bilateral mastectomies with right-sided lymph node dissection. 820-22. The year after, she had reconstructive surgery. Tr. at 399-407. The next year, providers restricted Gouthier to lifting and pulling no more than 20 pounds. Tr. at 2402.
In September 2014, Gouthier reported that she had experienced numbness in her fingers for the past seven months. Tr. at 2954-55. She also experienced hand swelling, which was worse in colder weather. Id.
In March 2015, Gouthier's oncologist, Dr. Johnny Stephens, issued a statement explaining the damage to her right upper chest from multiple surgeries. Tr. at 2386. He noted Gouthier's incessant pain and neuropathy when engaging her chest and arm muscles. Id. He discouraged activities including lifting, pushing, or pulling more than 20 pounds. Id.
Three months later, providers again noted Gouthier's joint pain and numbness. Tr. at 2934. Providers evaluated the neuropathic pain in her hands and feet. Tr. at 778-80. Although medication helped, she still experienced pain and swelling. Id. An examination found decreased sensation in her upper extremities. Id. Providers noted similar symptoms of pain and numbness later that month. Tr. at 2928-31.
In August 2015, Gouthier reported a pulling sensation in the right side of her chest. Tr. at 820-22. One month later, an EMG study made positive findings for severe, bilateral CTS. Tr. at 800. Gouthier stated that her chronic wrist pain, accompanied by numbness and tingling, had increased in severity over the past year. Tr. at 370-71. She had trouble with gripping, lifting, and performing everyday activities. Id. Medication were somewhat helpful. Id. An examination noted several positive findings upon testing. Id. Providers assessed severe, bilateral median nerve compression, for which they recommended carpal tunnel release surgery. Id.
Gouthier underwent right CTS surgery in October 2015. Tr. at 373-74. She still experienced pain and difficulty with finger flexing following surgery. Tr. at 434.
The next month, Gouthier again reported a pulling sensation in her right chest. Tr. at 830. Providers performed bilateral reconstructive breast surgery later that month, Tr. at 832. But Gouthier experienced several post-surgical complications, including bleeding and vein thrombosis, which required additional procedures. Tr. at 440-44, 832-33.
In March 2016, providers remarked that Gouthier's polyneuropathy remained unchanged, despite her CTS surgery. Tr. at 814. While medications helped, Gouthier discontinued them because of side effects. Id. She had decreased sensation and reported poor overall health, pain, and sensory disturbances in her hands and chest. Tr. at 1981-82.
Gouthier underwent another breast reconstruction procedure in May 2016. Tr. at 925-26. But several weeks later, providers noted ongoing wound drainage and pain. Tr. at 969. Gouthier described a popping sensation in her chest and she had pain with movement. Tr. at 2119. The next month, she underwent removal of her right mammary prosthesis. Tr. at 2781.
The next month, Dr. James Roberts at the VA noted that Gouthier continued to have significant scarring and drainage. Tr. at 3327. She had trouble lifting her right arm without pain, and moderate tenderness. Id. Noting this significant scarring, pain, and tenderness, Dr. Roberts remarked that Gouthier had decreased mobility of her right arm and shoulder, rendering it essentially useless. Tr. at 4439.
Gouthier's complaints of chest pain continued. 3256, 3262. She underwent another reconstructive surgery in November 2016. Tr. at 2158. A follow-up visit noted some tenderness. Tr. at 2067. Providers performed yet another reconstructive procedure four months later. Tr. at 2172. Gouthier's post-surgical pain was controlled but she experienced swelling. Tr. at 1863.
In April 2017, Dr. Peter Morris performed a consultative examination. Gouthier reported constant finger pain and difficulty moving her bilateral upper extremities. Tr. at 1674-75. She also stated that her CTS caused numbness, tingling, and stiffness in her hands. Id. Her CTS surgery had provided little relief of her symptoms. Id. Gouthier had trouble using her right hand. Id. She could not perform several household chores such as vacuuming and yard work, and she needed assistance with other tasks such as dressing and washing dishes. Id.
Dr. Morris's examination remarked that Gouthier had trouble using her right hand, and she could not open a bottle and had difficulty turning a door handle. Tr. at 1676. Use of her left hand was awkward. Id. Gouthier could not write with a pen or manipulate a button. Id. She showed reduced range of motion in her shoulder and tenderness to palpitation. Tr. at 1677-78. Dr. Morris assessed pain and decreased motion in the bilateral upper extremities and CTS. Tr. at 1679. He opined that she could never reach overhead, occasionally reach forward, and occasionally handle, finger, or feel with her right side but frequently handle, finger, and feel with her left side. Id.
Dr. William Grant evaluated Gouthier in July 2017. Tr. at 3384. He concluded that she would have trouble working because she could not lift or carry more than 10 pounds. Id. Dr. Grant also remarked that Gouthier's chronic chest pain became unbearable with any movement. Id.
Gouthier again complained of right arm and chest pain the next month. Tr. at 1800. She reported similar symptoms in December 2017. Tr. at 1769-71. Records from the VA in February 2018 noted that Gouthier's scarring, right-sided weakness, and decreased range of motion and sensation. Tr. at 3292. These conditions caused limitations in her motion, strength, dexterity, and sensation, impacting most activities of daily living. Id.
D. Residual Functional Capacity
Gouthier maintains that the RFC is flawed because ALJ Booth did not perform a function-by-function assessment of her ability to use her upper extremities or build a logical bridge between the medical record and her functional limitations. She points out that there is evidence supporting a determination that she is more limited than the RFC reflects. The Commissioner contends that the RFC includes all of Gouthier's well-supported limitations. The undersigned finds that ALJ Booth's decision fails to explain how the evidence supports his RFC determination but not contrary or more-restrictive conclusions in the record.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "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)." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity "assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions" listed in the regulations. "Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p. The Ruling further explains that the residual functional capacity "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.
There is no "per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]" Mascio, 780 F.3d at 636. But "[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D.N.C. July 17, 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [SSR] 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. July 26, 2010))).
ALJ Booth found Gouthier had the RFC to perform a light work with limitations to frequent reaching, handling, fingering, feeling, pushing, and pulling, along with postural and environmental limitations. Tr. at 23. But Gouthier claims that ALJ Booth failed to conduct a function-by-function assessment as it relates to the use of her upper extremities. She points out that the evidence shows she is more limited than the RFC determined. Given ALJ Booth's lack of explanation of how the record supported his finding that she can perform frequent manipulations, Gouthier maintains this issue warrants remand.
The record reflects upper extremity issues stemming from several surgeries related to breast cancer and carpal tunnel syndrome. It contains several notations of Gouthier's upper extremity pain, weakness, neuropathy, decreased sensation and range of motion, scarring, and associated limitations. She had trouble lifting, carrying, reaching, and holding objects. Providers observed her difficulty with use of her right hand and with buttons. Gouthier testified that because of her limitations, she relied on her mother to assist her with several activities of daily living.
ALJ Booth noted that Gouthier's status post-surgery limited her functioning, but also observed there was no recurrence of her cancer. Yet that fails to address her functional ability since her limitations stemmed from her condition following surgery.
ALJ Booth also remarked that no medical provider opined that Gouthier was disabled. This reasoning is unpersuasive for two reasons.
First, the SSA routinely notes that it need not accept a physician's disability conclusion because it is an issue reserved to the Commissioner. So a medical professional's assessment of disability generally is not required and may not be influential to the disability determination.
Second, while not explicitly concluding she was disabled, Gouthier's providers noted several limitations which arguably translate into a finding of disability at step five. Dr. Morris noted that she could not reach overhead and she could only occasionally reach forward or perform other manipulations on the right side. Dr. Roberts remarked that Gouthier had limited mobility of her right upper extremity and could not lift without pain, rending her right upper extremity essentially useless. And Dr. Grant observed that Gouthier could not lift more than 10 pounds without experiencing pain and her chest pain became unbearable with any movement.
These providers' assessments arguably show that Gouthier is more limited in the use of her upper extremities, particularly on the right side, that ALJ Booth found. But, as explained below, he did not explain why he found this evidence unpersuasive.
The Vocational Expert ("VE") testified that there would be no competitive work for a claimant with Gouthier's vocational profile who was limited to occasional manipulations. So ALJ Booth's failure to explain how the record supports his finding that Gouthier could frequently reaching, handing, fingering, feeling, pushing, and pulling with her upper extremities is material to the disability determination, especially given that Gouthier's argument finds support in the assessments of Dr. Morris, Roberts, and Booth.
In sum, ALJ Booth's RFC finding as it relates to Gouthier's use of her upper extremities is neither explained nor fully supported by the record. So the undersigned cannot conclude that substantial evidence supports the RFC determination. Thus, this issue warrants more consideration on remand.
E. Medical Opinion Evidence
Gouthier also asserts that ALJ Booth failed to evaluate medical opinions from Drs. Morris, Roberts, and Grant. The Commissioner contends that ALJ Booth considered the medical records from these physicians and his decision sets forth the reasons why he did not adopt their findings. The undersigned finds that ALJ Booth's failure to discuss the assessments of these physicians and his lack of explanation of why his decision does not incorporate their findings warrant remand.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight, but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, deserve no special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
"In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). But "[i]n some cases, the failure of an ALJ to explicitly state the weight given to a medical opinion constitutes harmless error, so long as the weight given to the opinion is discernible from the decision and any grounds for discounting it are reasonably articulated." Bryant v. Colvin, No. 5:11-CV-648-D, 2013 WL 3455736, at *5 (E.D.N.C. July 9, 2013) (internal quotation marks and citations omitted).
As noted above, Dr. Morris noted that she could not reach overhead and she could only occasionally reach forward or perform other manipulations on the right side. Dr. Roberts remarked that Gouthier had limited mobility of her right upper extremity and could not lift without pain, rending her right upper extremity essentially useless. And Dr. Grant observed that Gouthier could not lift more than 10 pounds without experiencing pain and her chest pain became unbearable with any movement.
ALJ Booth did not specifically discuss these providers findings. While the decision does state that ALJ Booth considered all the evidence, such a review cannot relieve an ALJ of his obligation to weigh medical opinions. See Boyette v. Berryhill, No. 7:17-CV-159-FL, 2018 WL 4689451, at *3 (E.D.N.C. Sept. 28, 2018) (finding that an extensive review of medical evidence was not a substitute for evaluating a medical opinion and that the ALJ's failure to weigh a medical opinion that presented a possible conflict with the RFC was prejudicial error).
Case law instructs that an ALJ's failure to discuss a medical opinion requires remand when the opinion conflicts with the RFC finding. The conclusions of Drs. Morris, Roberts, and Grant—that she could not reach overhead, could only reach forward and perform other manipulations occasionally, and her right upper extremity was essentially useless—conflict with ALJ Booth's RFC allowing for frequent bilateral reaching, handling, fingering, feeling, pushing, and pulling in all directions. And because the RFC permits light work, which contemplates occasionally carrying up to 20 pounds, it also conflicts with an assessment limitation that Gouthier not lift more than 10 pounds.
And the undersigned is unpersuaded by the Commissioner's passing argument that the assessments from Drs. Morris, Roberts, and Grant are merely medical evidence, not medical opinions that the ALJ must assess. These evaluations reflect their judgment on Gouthier's impairments and functioning. See Love-Moore, 2013 WL 5366967, at *11 (noting that statements reflecting judgment on limitations, and not merely reporting subjective statements, constitute medical opinions). So they are medical opinions that ALJ Booth should have weighed.
Given the contrast between the opinions of these providers and the RFC determination, ALJ Booth's failure to evaluate the assessments of these treating providers, assign weight to them, and offer sound reasons for his findings does not constitute harmless error. Such errors support remand to correct these oversights.
F. Veterans Affairs Disability Rating
Gouthier also argues that ALJ Booth erred in failing to accord substantial weight to the VA disability decision, claiming that his reasons to assign limited weight to this evidence ignore Fourth Circuit case law. The Commissioner asserts that ALJ Booth's determination supports his decision to give the VA disability rating less than substantial weight. The court finds that ALJ Booth's reason for assigning the VA disability determination less than substantial weight do not withstand scrutiny under controlling law in this Circuit.
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.
The Fourth Circuit has addressed the value of disability findings by other agencies. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012). It noted that while 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.; see also Woods v. Berryhill, 888 F.3d 686, 692 (4th Cir. 2018) (extending Bird's holding to state agency disability determinations).
ALJ Booth determined that the VA disability rating which found Gouthier 100% disabled—including 100% disabled for her breast cancer and reconstructive surgeries, 30% disabled for her surgical scarring, and 10% disabled for each of several right and left upper extremity strain, neuropathy, and CTS—deserved limited weight. Tr. at 31-32. ALJ Booth remarked that the VA and SSA disability programs are different, and a VA disability finding does not consider the effect of an impairment on a claimant's ability to perform basic work tasks. Tr. at 32. ALJ Booth also remarked that he had addressed each component impairment rated by the VA as assigned appropriate limitations for those impairments he found were severe. Id.
Gouthier contends that ALJ Booth's finding violates Bird. Gouthier points out that citing "different programs" does not offer adequate explanations to justify a deviation from the substantial weight presumed due for other agency disability findings. The court agrees that ALJ Booth's consideration of this evidence goes against Fourth Circuit precedent and warrants more review.
ALJ Booth's explanation of why he assigned limited evidentiary weight to the VA disability assessment fails to "clearly demonstrate" that deviation was 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 when the ALJ's explanation merely concludes that the VA disability finding depends on different criteria. See Stanley v. Berryhill, No. 1:17-CV-913, 2019 WL 919355, at *5 (M.D.N.C. Feb. 25, 2019) (holding that the ALJ failed to meet the requirements in Bird where "the ALJ's rationale [for assigning little weight to the VA determination] relies only on the differences between the VA and SSA disability systems, without making any particular findings as to Plaintiff's case"); Hildreth v. Colvin, No. 1:14-CV-660, 2015 WL 5577430, at *3 (M.D.N.C. Sept. 22, 2015) (holding that "the ALJ's statement that she was 'not bound by' the VA's disability ratings because the VA's disability standards differed from those of the Social Security Administration ... disregards Bird's holding to the contrary.")
Saul tries to rescue the decision's lack of meaningful explanation by asserting that ALJ Booth addressed the medical evidence and Gouthier's statements. The Commissioner also notes that ALJ Booth discussed each impairment for which the VA assigned a disability rating. And for the impairments ALJ Booth found were severe, he assigned corresponding functional limitations.
But ALJ Booth's consideration of the VA disability rating fails to mention why the records which the VA relied on did not support a finding that Gouthier was disabled. Although ALJ Booth noted that medical evidence and hearing testimony supported a finding that Gouthier could perform a reduced range of light work, he did not evaluate that medical evidence against the VA disability decision or explain how the evidence supported his conclusion but not that of the VA.
It is not for the reviewing court to weigh the evidence but merely to conclude whether the ALJ's finding has the support of substantial evidence. Here, it does not.
Given that the VA premised its disability finding upon many of the same records ALJ Booth considered, it is hard to determine how opposite conclusions resulted where no meaningful explanation is offered to explain the divergence. Differing results between the two disability inquiries may be appropriate. But where the proffered explanations are cursory, the undersigned cannot conclude that substantial evidence warrants assigning only no significant evidentiary weight to another disability determination
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 determination(s) is warranted here. See Northern v. Colvin, Case No. 1:15-CV-445, 2016 WL 5956636, at *4 (M.D.N.C. Oct. 12, 2016) (remanding case in which ALJ gave VA disability determination limited weight, noting 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 enough to show that a deviation from a finding of substantial weight was appropriate, and remanded for a more proper weighing under 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 whether the conclusion was supported by substantial evidence). While the ALJ may conclude that the VA decision has no right to substantial weight, he must sufficiently explain any reason to deviate so as 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 to decline to afford substantial weight to it warrants remand under Bird. Thus, this issue, too, warrants remand.
On remand, the ALJ might well conclude on this record that Gouthier's approval for VA disability benefits deserves significant, lesser, or no weight. But that analysis is for the ALJ to perform in the first instance because 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). --------
III. Conclusion
For all these reasons, the undersigned recommends that the court grant Gouthier's Motion for Judgment on the Pleadings (D.E. 26), deny Saul's Motion for Judgment on the Pleadings (D.E. 29), and remand this matter to the Commissioner's for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: July 27, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge