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Mullen v. Berryhill

United States District Court, E.D. North Carolina, Eastern Division

August 8, 2017

JAMES MULLEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This cause comes before the Court on cross-motions for judgment on the pleadings. A hearing was held on these matters before the undersigned on July 24, 2017, in Raleigh, North Carolina. For the reasons discussed below, the decision of the Commissioner is reversed.


         Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final decision of the Commissioner denying his claim for disability and disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. Plaintiff protectively filed his application on March 15, 2013, with amended alleged disability onset date beginning September 18, 2008. After initial denials, a hearing was held before an Administrative Law Judge ("ALJ") who issued an unfavorable ruling. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied plaintiffs request for review. Plaintiff then timely sought review of the Commissioner's decision in this Court.


         Under the Social Security Act, 42 U.S.C. §§ 405(g), and 1383(c)(3), this Court's review of the Commissioner's decision is limited to determining whether the decision, as a whole, is supported by substantial evidence and whether the Commissioner employed the correct legal standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and citation omitted).

         An individual is considered disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other line of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).

         Regulations issued by the Commissioner establish a five-step sequential evaluation process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision regarding disability can be made at any step of the process, however, the inquiry ceases. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         At step one, if the Social Security Administration determines that the claimant is currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks whether the claimant has a severe impairment or combination of impairments. If the claimant has a severe impairment, it is compared at step three to those in the Listing of Impairments ("Listing") in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or medically equals a Listing, disability is conclusively presumed. If not, at step four, the claimant's residual functional capacity ("RFC") is assessed to determine if the claimant can perform his past relevant work. If so, the claim is denied. If the claimant cannot perform past relevant work, then the burden shifts to the Commissioner at step five to show that the claimant, based on his age, education, work experience, and RFC, can perform other substantial gainful work. If the claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R. § 416.920(a)(4).

         At step one, the ALJ determined that plaintiff met the insured status requirements and had not engaged in substantial gainful activity since his alleged onset date. Plaintiffs degenerative disc disease of the lumbar and cervical spine and muscle cramping were considered severe impairments at step two, but were not found alone or in combination to meet or equal a listing at step three. The ALJ concluded that plaintiff had the RFC to perform sedentary work with additional exertional limitations. The ALJ then found that plaintiff was unable to return to his past relevant work but that, considering plaintiffs age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that plaintiff could perform such as dowel inspector, fabric cutter and assembly press operator. Thus, the ALJ determined that plaintiff was not disabled under the Act.

         An ALJ makes an RFC assessment based on all of the relevant medical and other evidence. 20 C.F.R. § 404.1545(a). An RFC should reflect the most that a claimant can do, despite the claimant's limitations. Id. An RFC finding should also reflect the claimant's ability to perform sustained work-related activities in a work setting on regular and continuing basis, meaning eight-hours per day, five days per week. SSR 96-8p; Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006). The ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p. If an opinion from a treating source is well-supported by and consistent with the objective medical evidence in the record, it may be entitled to controlling weight. 20 C.F.R. §§ 404.1527(c), 416.927(c). Where an opinion is inconsistent with other evidence in the record, the ALJ need not give that opinion any significant weight. Id.; see also Craig v. Chater, 76 F.3d at 585, 590 (4th Cir. 1996) ("[I]f a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight"). However, ALJ's decision to do so must be accompanied by "a narrative discussion" that discusses "how the evidence supports each conclusion, " such that the ALJ's decision is sufficiently specific to make it clear to a reviewing district court "why the opinion was not adopted." See SSR 96-8p. Though an ALJ is entitled to resolve inconsistencies between examining medical opinions, SSR 96-8p, 1996 WL 374184, at *7, the ALJ's decision must be supported by substantial evidence, and must adequately address the opinions of treating and consulting physicians and properly explain deviancies between her opinion and the record evidence.

         The ALJ's decision in this instance is not supported by substantial evidence. The ALJ found plaintiff capable of sedentary work, except that he is limited to occasional postural activities and only occasional flexion, extension and rotation of the neck. This conclusion is not supported by the record, because the ALJ improperly discounted the evidence of plaintiff s psychiatric impairments and improperly evaluated the effects of plaintiff s pain and difficulties with social functioning on his ability to perform work related activities.

         First, the ALJ improperly weighed the VA disability determination. The VA found plaintiff 100% disabled due to his major depressive disorder with psychotic features within the relevant timeframe. Tr. at 240. The VA also assigned several other ratings for his physical impairments. Tr. at 240-41. However, the ALJ gave little weight to the VA disability rating for plaintiffs mental disorders, stating that the VA rating "differs significantly from the undersigned's obligation to consider all impairments, regardless of origin and to address with functional specificity how the claimant's vocational capacities are affected, " and also stating that the VA decision failed to explain the basis upon which the percentages were assigned. Tr. at 26. For these reasons, the ALJ gave the VA rating of complete disability only "some credibility as a general indicator of the severity of any particular impairment." Id. Although not binding on the Commissioner, disability decisions by other governmental agencies "cannot be ignored and must be considered" in making a disability determination. S.S.R. 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). Additionally, the Fourth Circuit has held that "in making a disability determination, the SSA must give substantial weight to a VA disability rating." Bird v. Commissioner, 699 F.3d 337, 343 (4th Cir. 2012). Only where the ALJ points to clear reasons for deviation can the ALJ give less weight to a VA rating. Id. The ALJ did not do so here, and his disregard of the rating was therefore in error.

         First, the ALJ failed to make clear what portions he found credible or not credible and why, frustrating meaningful review. Further, "simply noting the fact that the VA and SSA employ different standards, in and of itself, is insufficient to justify deviation under Bird." Pridgen v. Colvin, 4:15-CV-95-F, 2016 WL 4047058, at *3-4 (E.D. N.C. Jun. 30, 2016) (adopted Jul. 27, 2016). Simply noting that the VA and SSA employ different standards is insufficient to justify a decision to not afford the rating substantial weight and does not explain why or how the rating is not supported by the record evidence. Essentially, the ALJ failed to adequately ...

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