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Hollander v. Berryhill

United States District Court, D. New Mexico

July 10, 2018

NIYO HOLLANDER, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing, United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Niyo Hollander's Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum (Doc. 17), which was fully briefed on September 14, 2017. See Docs. 19, 20, 21. The parties consented to my entering final judgment in this case. Docs. 3, 5, 6. Having meticulously reviewed the entire record and being fully advised in the premises, I find that Mr. Hollander's motion is not well-taken, and it will be DENIED.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or she 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 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings[1] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Mr. Hollander was born in 1972 and completed a bachelor's degree. AR 48, 259.[2] He served for over 13 years as a medic in the United States Army, and worked for approximately six months as a medical technician. AR 264. Mr. Hollander filed an application for disability insurance benefits on May 16, 2015[3]-alleging disability since February 15, 2009 due to post-traumatic stress disorder (“PTSD”), ankylosing spondylitis, [4] plantar fasciitis, neuropathy, acid reflux, and prediabetes. AR 229-34, 262. The Social Security Administration (“SSA”) denied his claim initially on October 6, 2015. AR 163-66. The SSA denied his claims on reconsideration on December 7, 2015. AR 168-71. Mr. Hollander requested a hearing before an ALJ. AR 172. On April 27, 2016, ALJ Lillian Richter held a hearing. AR 40-89. ALJ Richter issued her unfavorable decision on August 31, 2016. AR 16-39.

         The ALJ found that Mr. Hollander met the insured status requirements of the Social Security Act through March 31, 2014. AR 21. At step one, the ALJ found that Mr. Hollander had not engaged in substantial, gainful activity between February 15, 2009, his alleged onset date, and March 31, 2014, his date last insured. Id. At step two, the ALJ found that Mr. Hollander suffered from the severe impairments of PTSD, major depressive disorder, left thigh pain, and obesity. Id. The ALJ found that Mr. Hollander's migraines, hearing loss, gastroesophageal reflux disease (“GERD”), and back pain were nonsevere. AR 22. At step three, the ALJ found that none of Mr. Hollander's impairments, alone or in combination, met or medically equaled a Listing. AR 22-24. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Hollander's RFC. AR 24-31. The ALJ found Mr. Hollander had the RFC to

perform light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally balance, stoop, kneel, crouch, and crawl. He can frequently climb ramps and stairs. He can occasionally climb ladders, ropes, or scaffolds. He is limited to simple and routine work. He can have occasional contact with supervisors, coworkers, and members of the public. He should not work in close proximity to others in order to avoid distraction. He is limited to a workplace with few changes in the routine work setting. He is limited to making simple work-related decisions. He should avoid exposure to unprotected heights.

AR 24-25. At step four, the ALJ concluded that Mr. Hollander was unable to perform his past relevant work as an army medic or a medical technician. AR 31-32. The ALJ found Mr. Hollander not disabled at step five, concluding that he still could perform jobs that exist in significant numbers in the national economy-such as a marker, mailer sorter, and library page. AR 32.

         On September 6, 2016, Mr. Hollander requested review of the ALJ's unfavorable decision by the Appeals Council. AR 14-15. On November 23, 2016, the Appeals Council denied the request for review. AR 1-3. Mr. Hollander timely filed his appeal to this Court on January 18, 2017. Doc. 1.[5]

         IV. Mr. Hollander's Claims

         Mr. Hollander raises five arguments for reversing and remanding this case: (1) the ALJ failed to adequately explain how she considered Mr. Hollander's disability determination from the Department of Veterans Affairs (“VA”); (2) the ALJ erred in assessing the medical evidence of Mr. Hollander's mental limitations; (3) the ALJ erred in relying on old consultative evaluations; (4) the ALJ erred in relying on improper factors in determining Mr. Hollander's RFC; and (5) the ALJ erred by failing to conduct a function-by-function assessment. See Doc. 17 at 17-24. For the reasons discussed below, none of these issues merits remand.

         V. Analysis

         A. The ALJ Adequately Explained How She Considered Mr. Hollander's Disability Determination From the VA.

         Mr. Hollander argues that the ALJ failed to adequately consider evidence regarding his disability determination from the VA, and failed to explain her reasons for rejecting the “VA's view of the medical evidence.” Doc. 17 at 17-18. The Commissioner argues that the ALJ adequately “discussed and weighed the VA disability rating.” Doc. 19 at 18. For the reasons discussed below, I agree with the Commissioner.

         Another agency's decision regarding whether a claimant is disabled is not binding on the SSA. 20 C.F.R. § 404.1504 (effective through March 26, 2017).[6] Other agencies apply different rules and standards than the SSA for determining whether an individual is disabled, and “this may limit the relevance of a determination of disability made by another agency.” SSR 06-03p, 2006 WL 2329939, at *7 (Aug. 9, 2006).[7] However, disability decisions from other agencies, as well as the evidence the agencies relied on in making their decisions, “may provide insight into the individual's mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules.” Id. The SSA must independently evaluate the opinion evidence used by the other agencies in making their disability determinations in accordance with the SSA's guidelines for weighing opinion evidence. Id.

         Another agency's disability decision is “evidence that the ALJ must consider and explain why he [or she] did not find it persuasive.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (internal citation omitted); see also Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993) (“Although findings by other agencies are not binding on the Secretary, they are entitled to weight and must be considered.”) (quotation omitted). The “relative weight” to be given to another agency's determination of disability “will vary depending upon the factual circumstances of each case.” Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).

         In Mr. Hollander's case, the ALJ analyzed the VA's rating as follows:

Only partial weight was given to the VA's opinions regarding the claimant's medical conditions. The VA found the claimant was 70% disabled due to PTSD [AR 562]. However, the Social Security regulations provide the final responsibility for determining whether a claimant is able to work is solely reserved to the Commissioner. Giving controlling weight to other opinions regarding disability would, in effect, confer upon a treating source the authority to make the determination or decision about whether an individual is under a disability, and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled (Social Security Ruling 96-5p). I further note that the VA utilizes a different standard for determining disability than does the Social Security Administration. Accordingly, a finding of disability by the VA is not binding upon me in this proceeding. I have factored into consideration the many opinions rendered by VA providers in connection with the claimant's application for VA disability. I have accorded these opinions significant weight because they appear to be well supported by findings on examination and with the VA medical evidence of record. These opinions are reflected in the residual functional capacity.

AR 30-31.

         The record in this case does not contain an actual VA disability rating decision. Instead, the record contains Mr. Hollander's treatment records from the VA hospital, which contain passing references to his numerical VA disability rating, but do not include the VA's decision explaining the rationale behind the award of VA disability benefits to Mr. Hollander. See AR 562 (listing Mr. Hollander's service connected/rated disabilities as part of a patient consult request). The ALJ advised Mr. Hollander's representative that the VA's rating decision was missing from the record, and the representative stated she would submit it after the hearing. AR 70-71, 88. On May 23, 2016, the ALJ advised Mr. Hollander's representative that she had not received any additional evidence and that sshe would close the record in 10 days. See AR 399. Mr. Hollander submitted additional medical evidence, but did not submit the VA's disability decision. See AR 1461-1818.[8]

         Given that there is no substantive decision from the VA in the record, the ALJ was left with nothing more than the VA's numerical rating to analyze. A “VA disability rating decision . . . is similar to an ALJ's decision in a Social Security proceeding, as opposed to the VA's numerical rating standing alone.” Rodgers v. Colvin, No. 5:13-CV-345-D, 2015 WL 636061, at *8 (E.D. N.C. Feb. 13, 2015) (emphasis added); see also Burch-Mack v. Comm'r of Soc. Sec., No. 8:15-CV-1167-T-JSS, 2016 WL 4087477, at *4-*5 (M.D. Fla. Aug. 2, 2016) (explaining differences between VA's disability rating and VA's disability rating decision). The ALJ correctly stated that whether the claimant is “disabled” is the ultimate issue reserved to the Commissioner; thus, another agency's finding that a claimant is disabled receives no special weight or significance. AR 30; 20 C.F.R. § 404.1527(d)(1)-(3) (effective Aug. 24, 2012 to March 26, 2017) (opinions on issues that are reserved to the Commissioner-such as whether the claimant is “disabled”-are never entitled to special significance); see also SSR 96-5p, [9] 1996 WL 374183, at *2 (July 2, 1996) (“Giving controlling weight to such opinions would, in effect, confer upon the [VA] the authority to make the determination or decision about whether an individual is under a disability, and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled.”).

         In Mr. Hollander's case, the ALJ adequately considered and weighed the VA's disability rating in making her decision. See Baca, 5 F.3d at 480. The ALJ gave the VA's disability rating “partial weight, ” and stated that she considered the medical opinions from Mr. Hollander's VA providers. AR 30-31. The Court finds no error in the ALJ assigning the opinion “partial weight.” See Rodgers, 2015 WL 636061, at *9 (“Given the lack of evidence of record pertaining to Claimant's VA disability rating and the medical evidence and rationale underlying that rating, the undersigned determines that the ALJ did not err by according little weight to Claimant's numerical VA disability rating.”). In addition, the ALJ independently evaluated the opinion evidence of the VA providers, exactly as she was required to do. See SSR 06-03p, 2006 WL 2329939, at *7. The ALJ thoroughly explained how she determined that Mr. Hollander was not disabled for the purposes of Social Security disability. AR 21-33.

         Mr. Hollander's argument that this case is like Winick v. Colvin, 674 Fed.Appx. 816 (10th Cir. 2017) (unpublished) is not persuasive. Doc. 17 at 18. In Winick, the ALJ rejected a VA rating decisio ...


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