United States District Court, E.D. North Carolina, Eastern Division
MEMORANDUM AND ORDER
ROBERT T. NUMBERS, II, Magistrate Judge.
This matter is before the court on the parties' cross-Motions for Judgment on the Pleadings [D.E. 23, 26]. The time for filing any responses or replies has expired and the motions are now ripe for adjudication. Pursuant to 28 U.S.C. § 636(c), the parties have consented to jurisdiction by a United States Magistrate Judge for all proceedings, including final judgment. For the following reasons, it is ORDERED that Plaintiff's Motion for Judgment on the Pleadings [D.E. 23] is GRANTED, that the Defendant's Motion for Judgment on the Pleadings [D.E. 26] is DENIED and that the matter is REMANDED to the Commissioner for further proceedings.
Plaintiff filed an application for disability insurance benefits and supplemental security income on October 20, 2009, alleging a disability beginning on March 1, 2009. The claim was denied initially and upon reconsideration. A hearing was held via videoconference on February 16, 2012 and, in a decision dated April 13, 2012, the ALJ denied Plaintiff's application. (Tr. at 9-19). The ALJ found that Plaintiff had the following severe impairments: sleep apnea; obesity; hypertension; lumbago; and chronic foot pain status post three bunionectomies, pinning, and fusion. ( Id . at 11). The ALJ also found that his impairments, alone or in combination, did not meet or equal a Listing impairment. ( Id. at 12). The ALJ determined that Plaintiff had the Residual Functional Capacity ("RFC") to perform light work with the following limitations: can never operate foot controls bilaterally; occasionally climb ramps or stairs; never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch or crawl; should avoid concentrated exposure to moving or hazardous machinery and unprotected heights; and requires a sit/stand option at 30 minute intervals. ( Id. ). The ALJ determined that Plaintiff was incapable of performing his past relevant work but that, considering his age, education, work experience and RFC, there were jobs that existed in significant numbers in the national economy that he was capable of performing, such as marker. ( Id. at 17-18). The ALJ also determined that Plaintiff's prior alcohol and substance abuse were not contributing factors to the disability determination. ( Id. at 18). Thus, the ALJ found that Plaintiff was not disabled. ( Id . at 19).
After unsuccessfully seeking review by the Appeals Council, Plaintiff commenced this action and filed a complaint pursuant to 42 U.S.C. § 405(g) on October 18, 2013. [D.E. 6].
II. STANDARD OF REVIEW
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. Chafer, 99 F.3d 635, 638 (4th Cir. 1996).
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 then, at step four, the claimant's RFC is assessed to determine whether plaintiff 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).
A. VA disability rating
Plaintiff asserts that the ALJ failed to properly consider the 2011 disability finding by the Veterans' Administration ("VA"). He served eight (8) years in the Armed Forced before working in the private sector. As a result of his conditions, the VA found that Plaintiff had a 50 percent service-combined rating. The rating reflect the following rated disabilities: lumbrosacral or cervical strain (20%); foot condition (10%); superficial scarring (10%); and other foot condition (10%). (Tr. at 435.) In evaluating this evidence, the ALJ gave the VA disability finding minimal weight, noting that the VA used different factors than the SSA and that the VA's decision did not set forth the factors or evidence it considered. (Tr. at 15)
After the ALJ made his decision, the Fourth Circuit issued its opinion in Bird v. Commissioner of Social Security, 699 F.3d 337 (4th Cir. 2012). In Bird, the Fourth Circuit noted that the assignment "of at least some weight" to a VA disability determination is proper because both agencies "serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability." Bird, 699 F.3d at 343. The court held that, in making a disability determination, the precise weight that the SSA must afford to a VA disability rating is "substantial weight." The court noted, however, that because the standards used for evaluating disability claims differ between the agencies, and because the effective dates of coverage under the two programs would likely vary, "an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such deviation is appropriate." Id . Thus, a disability determination by another governmental agency, such as the VA, is not binding on the SSA, but it cannot be ignored. See 20 C.F.R. § 404.1504; SSR 06-03p, 2006 WL 2329939, at *6-7. Indeed, given the purpose of both programs and the medical documentation each requires, a disability finding by the SSA or VA is "highly relevant to the disability determination of the other." Bird, supra at 345. Additionally, a fair reading of Bird suggests that, absent clear evidence to warrant a deviation from another agency's disability determination, as articulated by the ALJ, the other disability decision is entitled to substantial weight.
In this case, the ALJ gave minimal weight to the VA disability rating stating, in conclusory fashion, that a decision by another agency as to an individual's disability is not binding on the Social Security Administration. (Tr. at 15.) However, mindful of the joint purpose and evidentiary requirements for a disability finding by both the VA and the SSA, such a finding fails to properly consider the disability determination of another agency as required in light of the Bird decision. Thus, the ALJ's reasoning that for discounting the VA disability assessment is insufficient grounds to dismiss the VA's findings. In determining that the Plaintiff had a 50% disability rating, the VA and the ALJ evaluated the same condition and much of the same evidence. This parallels the Fourth Circuit's finding in Bird, where the Fourth Circuit found that the VA rating decision "resulted from an evaluation of the same condition and the same underlying evidence that was relevant to the decision facing the SSA." Id. at 343. Inasmuch as the Bird court determined that remand was appropriate in such circumstances, so too is that relief warranted here. See Lamb. ...