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Poe v. Berryhill

United States District Court, W.D. Kentucky, Paducah Division

January 2, 2019

MICHAEL J. POE PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on Plaintiff's Complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. Plaintiff's memorandum in support of motion for summary judgment is at R. 11-2, and Defendant's responsive fact and law summary is at R. 16. The parties have consented to the jurisdiction of the undersigned magistrate judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. [R. 9.] The matter is ripe for determination.

         For the reasons below, the Court will REMAND this matter to the Commissioner for a new decision re-evaluating Plaintiff's residual functional capacity (RFC).

         The ALJ's RFC findings are unsupported by substantial evidence and do not accord with applicable legal standards.

         Plaintiff is an army veteran who served in Iraq and Afghanistan. [Administrative Record (AR) at 1199-1200.] On July 21, 2014, the prior administrative law judge (ALJ) issued a decision, finding that Plaintiff's bipolar disorder and post-traumatic stress disorder (PTSD) result in non-disabling mental limitations and that Plaintiff is not disabled through the decision date. [Prior ALJ's decision, AR at 85-86.] The ALJ based her mental RFC findings on the testimony (at the administrative hearing) of Tom Wagner, Ph.D., which the ALJ found to be “fully persuasive.” [AR, p. 90.] In support of her finding of non-disabling mental limitations, the ALJ recounted that Plaintiff “testified it is mainly his physical pain and problems which keep him from working” and that the most recent evidence indicates that his Veterans Administration (VA) pain management specialist, R. Peterson, Ph.D., referred him for psychological evaluation but, according to VA psychologist K. Byers, Psy.D., Plaintiff cancelled appointments, did not return phone messages, and did not respond to a final letter. [AR, p. 89.]

         Subsequently, VA psychologist Robert R. Jacobs, Ph.D., examined Plaintiff and diagnosed major depressive disorder (severe and recurrent). [AR at 741-44.] Based on Dr. Jacobs' findings, the VA increased Plaintiff's disability rating to 100 percent. [AR at 365, 934, 2013.] Plaintiff filed the present application for Social Security disability benefits, alleging that he became disabled on July 22, 2014, the day after the prior decision.

         The present ALJ acknowledged that Plaintiff suffers from major depressive disorder (in addition to the PTSD found by the prior ALJ). [AR at 18]. Nevertheless, the ALJ adopted the prior ALJ's non-disabling mental RFC findings verbatim (implicitly finding that Plaintiff's major depressive disorder adds no limitation). [Compare mental RFC findings at AR 22 and 86.[1] The ALJ adopted the prior findings not based on a fresh look at the evidence but on a conclusion that she was legally bound to the prior findings:

I have further considered Acquiescence Ruling (AR) 98-4(6) (Drummond v. Commissioner of Social Security [126 F.3d 836 (6th Cir. 1997)). This ruling holds that where a final decision of the Social Security Administration, after a hearing on a prior disability claim, contains a finding of a claimant's residual functional capacity, the Social Security Administration may not make a different finding in adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim unless new and additional evidence or changed circumstances provide a basis for a different finding of the claimant's residual functional capacity. In this case, I have adopted the residual functional capacity form the prior claim in its entirety with additional [physical] limitations.

[AR at 22.]

         The Sixth Circuit recently clarified that Drummond has become widely misunderstood - even in unpublished Sixth Circuit opinions - and that it was never intended to preclude an ALJ “from giving a fresh look to a new application containing new evidence … that covers a new period of alleged disability” or “from revisiting [an] earlier finding … unless [the claimant] offered new and material evidence of a changed condition.” Earley v. Comm'r of Soc. Sec., 893 F.3d 929, 931 (6th Cir. 2018) (calling into doubt Lester v. Comm'r, 596 Fed.Appx. 387, 389 (6th Cir. 2015) and Haun v. Comm'r, 107 Fed.Appx. 462, 464 (6th Cir. 2004)).[2] In light of Dr. Jacob's assessment [AR at 741-44], the ALJ erred in declining to find additional mental limitations.

         Additionally, a remand is required because the ALJ's decision does not reflect consideration and evaluation of Dr. Jacob's assessment. 20 C.F.R. § 404.1527(c) requires that “[r]egardless of its source [e.g., the VA], we [i.e., the Social Security Administration] will evaluate every medical opinion we receive.”[3]

         The ALJ did not err in discounting the VA disability rating itself.

         While the ALJ erred in not considering the medical opinions that formed the underlying basis of the VA disability rating of 100 percent, the ALJ did not err in discounting the rating itself. The ALJ properly found that the VA disability decision is not binding for Social Security disability purposes because different rules and standards apply. [ALJ's decision, AR at 25.] 20 C.F.R. § 404.1504 provides that “a determination made by another agency that you are disabled or blind is not binding on us” because it is “based on its rules” rather than “social security law.” This does not mean, however, that medical evidence generated as part of the VA disability evaluation process may not be binding or may be ignored under the rubric of the non-binding nature of the decision itself. See Hicks v. Comm'r, No. 1:15-cv-110, 2016 WL 490049, at *7 (S.D. Ohio Jan. 6, 2016) (holding that, although a VA disability rating is not binding, this does not provide an ALJ “carte blanche” to reject “the objective evidence cited in the [VA] Disability ...


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