Opinion
No. 7:17-CV-00250-FL
11-13-2018
William Bowie Sitorius, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner for Operations, Defendant.
Memorandum & Recommendation
Plaintiff William Sitorius instituted this action in December 2017 to challenge the denial of his application for social security income. Sitorius claims that Administrative Law Judge ("ALJ") Edward T. Morriss erred in failing to accord proper weight to the disability rating by the Department of Veterans Affairs ("VA"). Both Sitorius and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 21, 27.
After reviewing the parties' arguments, the court has determined that the record does not support ALJ Morriss's reasoning for assigning no significant evidentiary weight to the VA disability finding. Therefore, the undersigned magistrate judge recommends that the court grant Sitorius's motion, deny the Commissioner's motion, and remand this 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
In May 2016, Sitorius filed an application for disability insurance benefits, alleging a disability that began that month. After his claim was denied at the initial level and upon reconsideration, Sitorius appeared before ALJ Morriss for a hearing to determine whether he was entitled to benefits. ALJ Morriss determined Sitorius was not entitled to benefits because he was not disabled. Tr. at 48-59.
ALJ Morriss found that Sitorius had severe impairments: arthritis of the right knee, obesity, and post-traumatic stress disorder ("PTSD")/anxiety. Tr. at 50. ALJ Morriss also found that Sitorius's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 51.
ALJ Morriss then determined that Sitorius had the RFC to perform light work with limitations. Tr. at 53. Sitorius can occasionally kneel, crouch, and crawl. Id. He cannot climb ladders. Id. Sitorius is limited to understanding and carrying out simple instructions. Id. He can have no ongoing interaction with the public, nor work in close proximity to others, and only have occasional interactions with coworkers and supervisors. Id.
ALJ Morriss concluded that Sitorius could not perform his past relevant work as a burial needs salesperson, sales route driver, store laborer, customer service clerk, or materials handler. Tr. at 58. But considering his age, education, work experience, and RFC, ALJ Morriss found that there were jobs that existed in significant numbers in the national economy that Sitorius could perform. Tr. at 58-59. These jobs include: small parts assembler, electronics worker, and hand packager. Id. Thus, ALJ Morriss found that Sitorius was not disabled. Tr. at 59.
After unsuccessfully seeking review by the Appeals Council, Sitorius began this action in December 2017. 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 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 conclusively 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).
C. Medical Background
Sitorius has a history of traumatic brain injury ("TBI") sustained during his military service from 2007 to 2011. Tr. at 50. He also suffers from arthritis of his right knee, obesity, and past-traumatic stress disorder ("PTSD")/anxiety. Id. The VA found Sitorius to be 100% disabled as a result of his PSTD and TBI. Tr. at 18, 53.
In September 2016, Sitorius was described as having a depressed mood and being somber at times. Tr. at 55. He denied any suicidal or homicidal ideations, intent, or plan. Id. His mental health examination was otherwise unremarkable. Id.
Sitorius's wife, Amy Sitorius, completed a Third Party Function Report in September 2016. Tr. at 56. She noted that Sitorius needed assistance with personal care. She also remarked that he had cognitive difficulties, concentration problems, and trouble completing tasks. Id. Five months later, Sitorius denied any difficulty preparing meals, performing housework, shopping, or managing finances. Tr. at 55.
As for Sitorius's physical impairments, in 2014, before his onset date, Sitorius received treatment for his right knee pain. Tr. at 54. Providers diagnosed arthritis, and Sitorius underwent a right medial meniscectomy. Id. In 2015, Sitorius attended physical therapy and received corticosteroid injections. Id.
In June 2016, Sitorius's orthopedist noted that he had a good functional range of motion in his right knee with minimal effusion. Id. An MRI showed his cartilage incision but no obvious meniscus tear. Id. Providers recommended treatment with physical therapy and anti-inflammatory medication. Id.
Three months later, providers again remarked that Sitorius's knee had good range of motion and no gross instability, although there was some pain on palpitation. Tr. at 55. An MRI revealed a slight progression of the arthritis around the lateral aspect of his knee. Id.
The next month, Sitorius reported severe right knee pain. Id. Although he walked with a limp, Sitorius appeared in no acute distress. Id. An examination showed mild effusion with slight valgus alignment that corrected anatomically with a varus stress. There was lateral but no medial joint line tenderness. Id. Patellofemoral grind testing was negative and Sitorius's right knee was stable. Id. Imaging studies showed mild lateral compartment osteoarthritis with some joint space narrowing. Id. Sitorius reported improvement in his knee condition three months later, stating that his hinged knee brace had helped his pain. Id.
In April 2017, providers observed that Sitorius had somatic spine dysfunction. Id. Two months later, the etiology of his back pain remained unclear as providers noted his pain was out of proportion to examination findings. Id. An MRI revealed only an annular fissure and some neuroforaminal narrowing at L4-5. Id.
State agency physicians opined that Sitorius could perform light work with postural and environmental restrictions. Tr. at 55-56. State agency psychologists opined that Sitorius could perform simple, routine, repetitive tasks in low personal-interaction jobs. Tr. at 56.
The VA found that Sitorius was 90% disabled, which included a 70% service-connected disability rating for his PTSD. Id. In March 2017, Sitorius's disability rating was increased to 100%, which included PTSD (70%), migraine headaches (50%), lumbosacral or cervical strain (20%), and additional back, knee, shoulder, ankle, and hearing issues (10% each). Tr. at 1795.
Sitorius testified that his PTSD caused him daily anxiety. Tr. at 53. He had trouble in crowds and left past jobs because of problems getting along with co-workers. Id. He also stated that he experiences anger related to his PTSD. Id.
Sitorius spends much of his time at home. Id. He described issues with hypervigilance, constantly checking doors to his home and his car to make sure they are locked. Id. He suffers bouts of depression at which times he isolates himself. Tr. at 54. Sitorius stated that medications have helped his depressed mood. Tr. at 53. He experiences headaches and nightmares as well. Tr. at 54. Sitorius also has difficulty with focus and remaining on task. Id.
Sitorius testified that he has constant neck pain that radiates into his arms which causes him numbness. Id. He also described leg and knee pain, for which he sometimes uses a cane and occasionally wears a knee brace. Id. Sitorius stated he had fallen a few times because of his back and leg conditions. Id.
Sitorius estimated that he could lift 10-15 pounds. Id. He can sit, stand, or walk for 15-20 minutes at a time, but would need to recline after 30 minutes of alternating positions. Id.
D. Veterans Affairs Disability Rating
Sitorius contends that ALJ Morriss did not appropriately consider his VA service-connected disability rating. The Commissioner asserts that ALJ Morriss properly explained why the VA disability finding warranted no significant evidentiary weight in the disability analysis. The undersigned concludes that the record does not support ALJ Morriss's explanation of why he accorded little weight to this evidence and that it warrants reconsideration upon 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.
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, No. 1:16-cv-58-MOC-DLH, 2018 WL 1954475 (4th Cir Apr. 26, 2018) (extending Bird's holding to state agency disability determinations).
ALJ Morriss determined that the VA disability rating was entitled to no significant evidentiary weight. Tr. at 56. He observed that disability determinations by other agencies are not binding on the SSA and the VA and SSA use different criteria in making their disability determinations. Id. ALJ Morriss also remarked that the VA disability rating referenced no specific work activities, functional limitations, signs, symptoms, findings, or impairments that would render Sitorius disabled. Id. And ALJ Morriss found that the VA records did not support greater limitations on Sitorius's functioning that the RFC determined. Id.
Sitorius points out that in weighing the VA disability finding, ALJ Morriss remarked that he had an overall service-connecting rating of 90%. Tr. at 56. Sitorius's total VA disability rating is, in fact, 100%. Tr. at 18. But ALJ Morriss noted this fact earlier in his decision when he observed that Sitorius was found 100% disabled because of PTSD and a traumatic brain injury as well as back and knee impairments. Tr. at 53. So ALJ Morriss correctly noted Sitorius's full disability rating by the VA.
This may have been a previous rating, effective April 3, 2014, which was subsequently lowered to 70% two months later before being raised to 90% as of February 9, 2015. Tr. at 1785.
And the undersigned finds that ALJ Morriss's later misstatement that the disability rating was 90%, instead of 100%, was not material to his evaluation of the VA disability finding. But as discussed more fully below, ALJ Morriss's consideration of this evidence is contrary to Fourth Circuit case law and warrants further review.
Sitorius contends that ALJ Morriss's finding violates Bird. The undersigned agrees. ALJ Morriss's explanation of why he assigned no significant 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 where, as here, the ALJ's explanation merely concludes that the VA disability finding is based on different criteria or that the VA rating lacks specific findings addressing limitations based on sign, symptoms, or impairments.
Berryhill tries to rescue the decision's lack of meaningful explanation by asserting that ALJ Morriss addressed the medical evidence and Sitorius's statements. The Commissioner also maintains that parts of the medical record are inconsistent with the VA 's finding that Sitorius was disabled.
First, in evaluating the VA disability rating, ALJ Morriss references Exhibit 21F at 36-38. Tr. at 56. A review of that part of the record reflects that it is a January 2017 progress note which references his overall 90% disability rating, of which 70% is attributed to PTSD. Tr. at 1829-31. But VA records subsequently noted that Sitorius's disability rating was increased to 100%. Tr. at 1795, 2822.
Although ALJ Morriss's decision notes that he reviewed all the evidence, he did not specifically reference the 2015 VA disability finding. Tr. at 231-47. The VA disability decision explained Sitorius's 70% PTSD rating by noting his depression, anxiety, insomnia, and nightmares. Tr. at 240. It also observed that the record showed his issues with maintaining personal hygiene, suicidal ideations, impaired impulse control, memory loss, panic attacks, and occupational and social impairment with deficiencies in work, family relations, judgment, thinking, or mood. Id. The VA disability determination explained that Sitorius had difficulties in several areas including mood and motivation, understanding complex commands, and establishing and maintaining relationships. Id. The 2015 review noted that an improvement in Sitorius's condition was possible, so the evaluation was not permanent but subject to future review. Tr. at 241.
As for his right knee impairment, the 2015 VA decision assigned a 10% disability rating. Tr. at 233. In doing so, the VA remarked that Sitorius's right knee patellofemoral syndrome caused a painful range of motion. Tr. at 233.
So, contrary to ALJ Morriss's finding, the VA disability determination does, in fact, contain functional limitations, signs, symptoms, findings, and impairments on Sitorius's conditions. And these proffered bases for the assigned disability ratings are borne out more fully in the records from the VA and other providers.
The Commissioner posits that the the medical record is inconsistent with the VA's finding that Sitorius was disabled. But ALJ Morriss's assessment of the VA disability rating fails to identify the material inconsistencies. Although ALJ Morriss noted that providers found Sitorius pleasant and cooperative, these descriptions fail to undermine other findings that he had problems with memory, mood, and relationships. In any event, 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 both of its disability finding upon many of the same records ALJ Morriss considered, it is difficult 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 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, 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.
And as the Commissioner notes, the later March 2017 VA disability decision, which increased Sitorius's disability rating to 100%, was not part of the record before ALJ Morriss. Instead, it was first submitted to the Appeals Council. So while the record contained references to the most recent disability rating, and Sitorius's testimony stated that he had a 100% disability rating, ALJ Morriss did not review the March 2017 as it was not in the administrative record before him. The Appeals Council considered the most recent VA disability finding but concluded it would not change the outcome of ALJ Morriss's disability determination. Tr. at 2.
Despite the Appeals Council's conclusion, the undersigned finds that evaluation of the 2017 VA disability decision warrants further consideration. The overall record would seem to support a finding that Sitorius's conditions deteriorated, a conclusion which finds corroboration in the VA disability rating, which increased his disability rating in 2017. In doing so, the VA has determined that Sitorius's conditions had progressed and his functional abilities were reduced.
The 2017 VA disability finding notes that Sitorius's back condition resulted in reduced flexation, abnormal gait, muscle spasms, and painful range of motion. Tr. at 16. His right knee continued to show painful range of motion. Tr. at 16-17. And Sitorius's PTSD continued to cause social and occupational impairment, depressed mood, panic attacks, forgetfulness, sleep impairment, anxiety, and neglect of personal appearance and hygiene. Tr. at 17. His difficulties in maintaining relationships, memory, adapting to work-like settings also persisted. Id.
In sum, the lack of sufficient reasoning to deviate from the VA disability finding and to decline to afford substantial weight thereto warrants remand under Bird. Thus, the undersigned recommends that the court grant Sitorius's argument on this issue.
On remand, the ALJ might well conclude on this record that Sitorius'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). --------
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Sitorius's Motion for Judgment on the Pleadings (D.E. 21), deny Berryhill's Motion for Judgment on the Pleadings (D.E. 27), and remand the matter to the Commissioner for further consideration.
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 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: November 13, 2018
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE