United States District Court, W.D. Kentucky, Paducah Division
MICHAEL J. POE PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
KING, MAGISTRATE, JUDGE UNITED STATES DISTRICT COURT.
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.
reasons below, the Court will REMAND this matter to the
Commissioner for a new decision re-evaluating Plaintiff's
residual functional capacity (RFC).
ALJ's RFC findings are unsupported by substantial
evidence and do not accord with applicable legal
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.]
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.
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 ¶ 22 and 86. 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
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]
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)). In light of Dr. Jacob's assessment [AR
at 741-44], the ALJ erred in declining to find additional
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) requi re s that
“[r]ega r dless of its source [ e.g., the VA], we
[i.e., the Social Security Administration] will evaluate
every medical opinion we receive.”
ALJ did not err in discounting the VA disability rating
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 ...