Office of Disability and Adjudications Review

May 11, 2012

Appeals Council

Office of Appellate Operations

Office of Disability and Adjudications Review

5107 Leesburg Pike

Falls Church, VA 22041-3255

ATTN: BRANCH 10

Claimant: John Doe

SSN: xxx-xx-xxx

DOB: June 15, 1951

Dear Appeals Council:

The February 23, 2012 unfavorable decision by Administrative Law Judge (“ALJ”) C R. B errs as follows:

• It fails to consider or evaluate a Veterans Administration decision contrary to Social Security Ruling (“SSR”) 06-03p and Eleventh Circuit case law.

• It does not comply with SSR 83-20 to determine the onset date of Doe’s disability.

• The RFC determination is not supported by substantial evidence.

•The finding that Doe has transferable skills is contrary to SSR 82-41.

•The finding that Doe has a polysubstance abuse severe impairment.

•The findings relating to Doe owning and operating a taxi business.

•In making an adverse credibility finding.

1. The ALJ erred in failing to consider a Veterans’ Administration (“VA”) decision, dated September 21, 2009, and is contrary to SSR 06-03p[1] and Eleventh Circuit case law.

The ALJ erred by failing to discuss, consider, or evaluate the disability determination by the Veterans Administration (Exhibit 15F) because this disability finding must be given great weight by the ALJ (See Kemp v. Astrue, 2009 WL 163019 (11th Cir. January 26, 2009) (slip opinion) (citing Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir.1981) (“A VA rating is certainly not binding on the Secretary, but it is evidence that should be considered and is entitled to great weight” [emphasis added])). Here, the VA disability determination is highly relevant because: (1) the VA and Social Security definitions of disability are similar[2]; and (2) the VA determination was well informed in that it was made closer to Doe’s insured period and based on his complete medical records with the VA. Clearly, the ALJ erred by failing to consider the VA disability determination. The ALJ should have considered the VA disability determination and given the determination great weight (or presumably explained why it was not entitled to great weight). Although the ALJ mentioned the VA determination of disability in his discussion of Doe’s testimony (Hearing Decision, page 5), he did not state what weight he was attributing to it and did not include it in his analysis. Further, the ALJ gave no reason why it was not entitled to “great weight.” Specifically, the ALJ merely stated, “[t]he claimant [] testified that he is 100% disabled from the Veterans’ Administration” (Id.). However, the hearing decision does not otherwise explain the weight given to the determination. This was error. (See Speagle v. Astrue, No. 3:08-cv1046, 2010 WL 750341, *5 (M.D.Fla. Mar.4, 2010) (remanding where “the ALJ made no reference to the VA’s disability rating [because] it [was] impossible to determine whether the ALJ simply overlooked the VA’s disability rating, or whether the VA’s disability rating was given the appropriate weight”); Smith v. Astrue, No. 3:08-cv-406, 2009 WL 3157639, *7 (M.D.Fla. Sept.25, 2009) (finding that ALJ’s conclusory reference to VA disability determination without discussion of weight given warranted remand for the ALJ to apply the correct legal standard); SSR 06-03p (noting that the ALJ “should explain the consideration given to [other governmental agency] decisions”).

The ALJ failed to consider the September 21, 2009 VA disability rating that Doe is 100% disabled (Exhibit 15F). A VA disability rating is normally entitled to great weight. See Kemp v. Astrue, 2009 WL 163019 (11th Cir. January 26, 2009) (slip opinion) (citing Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir.1981) (“A VA rating is certainly not binding on the Secretary, but it is evidence that should be considered and is entitled to great weight” [emphasis added])). While the ALJ summarized the evidence from the VA, the ALJ merely devoted one sentence to Doe’s 100% disability rating and only as it related to Doe’s testimony (Hearing Decision, page 5). Specifically, the ALJ stated, “[t]he claimant [] testified that he is 100% disabled from the Veterans’ Administration” (Id.). Simply because the ALJ mentioned that Doe testified as to his VA disability rating should not be construed as the ALJ giving due consideration to the VA disability rating. Given the ALJ’s lack of discussion, claimant urges the Appeals Council to conclude that the ALJ erred in failing to consider the VA disability determination. In Jamiah v. Astrue, 2010 WL 1997886 at *19 (N.D.Ga. May 17, 2010) (slip opinion), the district court (in the jurisdiction where the hearing in this matter was held) concluded that “the absence of any discussion of the VA disability determination is akin to a broad rejection of these VA findings.” Here, the Appeals Council simply cannot perform any sort of meaningful review when the ALJ erred in broadly rejecting such important opinion evidence, such as that of a VA determination that a veteran is 100% disabled. Accordingly, should the Appeals Council decide to remand, rather than issue a fully favorable decision in this case, the ALJ should be directed to consider the September 21, 2009 VA disability rating and detail the weight to be accorded the decision. In addition, upon remand, the supplemental VA records presented by claimant should be reviewed in order to determine whether they constitute material evidence which has any bearing on his claim for disability during the period at issue.

2. The ALJ did not comply with SSR 83-20 to determine the onset date of Doe’s disability.

The ALJ erred by failing to consult a medical expert to determine the onset date of Doe’s disability as outlined in SSR 83-20. The VA made a total disability determination on September 21, 2009 and Doe’s condition had not appreciably changed from 2002. As a result, the ALJ should have consulted a medical expert to determine the onset date for Doe’s disability.

The ALJ must call a medical expert to determine the onset date because the issue may arise on remand. SSR 83-20 provides that “the established onset date must be fixed based on the facts and can never be inconsistent with the medical record evidence.” SSR 83-20. A medical expert is sometimes required to assist the ALJ in finding the onset date for the disability (See id.) Specifically, the Rule states that

[d]etermining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process.

(Id.). When the date of onset must be inferred, the ALJ “should call on the services of a medical advisor” (Id.).SSR 83-20 applies “in cases where [(1)] the claimant's impairment is slowly progressive,” (2) “the ALJ is required to make a retroactive inference of disability prior to the date last insured,” and (3) “the medical evidence during that time period is ambiguous or inadequate.” McManus v. Barnhart, No. 5:04-CV-67, 2004 WL 3316303, *6 (M.D.Fla. Dec.14, 2004). In March v. Massanari, No. 00-16577, 265 F.3d 1065 (Table), slip op. at 5 (11th Cir. July 10, 2001), the court rejected the Commissioner’s argument that SSR 83-20 did not require a medical advisor because plaintiff failed to prove disability prior to the date last insured because there was “strong evidence that [plaintiff] became disabled at some time,” rendering a determination of the onset date “critical” and a medical advisor opinion necessary.

3. The ALJ’s RFC determination is not supported by substantial evidence.

The ALJ’s RFC assessment is supported by substantial evidence in the record if he properly evaluated the medical opinions and claimant’s testimony. Those aspects of the decision may be altered, however, depending upon the weight to be given to the VA rating. Therefore, the ALJ must reconsider the RFC after reviewing and evaluating the VA disability determination.

4. The ALJ’s finding that Doe had transferrable skills violated SSR 82-41.

The ALJ found that clmt had acquired work skills from past relevant work – reporting and recording, data entry, clerical, and blue prints (Hearing Decision, page 10); however, since the clmt is limited to unskilled work, transferability is not an issue in this case. The SSA considers a claimant to have skills that can be used in other jobs when the skilled or semiskilled work activities that the claimant did in past work can be used to meet the requirements of skilled or semiskilled work activities of other jobs or kinds of work.[3] In addition, acquired skills are not transferable to unskilled work because, by definition, unskilled work requires no skills.[4] A claimant who is thus found to have no transferable skills may not be found able to perform potential jobs which are identified as semiskilled.[5] In conclusion, when an ALJ makes a finding that a claimant has transferable skills, he or she must identify the specific skills actually acquired by the claimant and the specific occupations to which those skills are transferable.[6]

5. The ALJ erred in finding polysubstance abuse a severe impairment at step two.

The ALJ erred in finding polysubstance abuse a severe impairment. Here, the ALJ found that “the claimant did have severe impairments of PTSD and polysubstance abuse during the relevant period, but he had few limitations during this time. . . .” (Hearing Decision, page 10). However, the ALJ two sentences later states, “Also, during the relevant period he was either not abusing drugs and alcohol or had his use under control” (Id.). These two (2) finding appear contradictory.

6. The ALJ erred in his findings relating to claimant owning and operating a taxi business.

The ALJ erroneously reported that the record “suggests that [claimant] owned and operated a taxi business during [the relevant period]” (Id.). Then, the ALJ makes the finding that “the claimant certainly could have performed simple tasks with casual, infrequent contact with the public during the relevant period” (Id.). Here, the ALJ made two (2) errors. First, nothing about owning and operating a taxi business would allow for performance of simple tasks with casual, infrequent contact with the public. Second, in Finding 6, the ALJ does not include owning and operating a taxi business as PRW (Id.).

7. The ALJ erred in his adverse credibility finding.

Under step four, the ALJ committed legal error by finding Doe’s “statements concerning the intensity, persistence and limiting effects of [his] symptoms [ ] not credible to the extent they are inconsistent with the residual functional capacity assessment” (Id., page 6). While the ALJ found that “the claimant’s medically determinable impairments could reasonably be expected to cause some symptoms” (Id.), the ALJ did not explain how the record indicates Doe’s statements were inconsistent with his RFC. Furthermore, the ALJ gave no explanation whatsoever for finding Doe’s testimony not credible. That is, the ALJ’s boilerplate credibility assessment is inadequate and not supported by substantial evidence. Here, the ALJ simply relied on his own credibility judgments. This constitutes legal error.

8. Conclusion

For the foregoing reasons, the Appeals Council should vacate, reverse, and remand this matter to an ALJ. In the alternative, the Appeals Council should find Doe disabled and issue a fully favorable decision. Please let me know if I may be of any further assistance to you.

Sincerely,

cc: John Doe

[1]

The relevant portion of SSR 06–03p states:

“[W]e are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies (20 CFR § 404.1512(b)(5)). Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered. (SSR 06–03p, 2006 WL 2329939, at *6).

[2]

Both the SSA and VA programs have detailed regulatory schemes that promote consistency in adjudication of claims. Both are administered by the federal government, and they share a common incentive to weed out meritless claims. The VA criteria for evaluating disability are very specific and translate easily into SSA's disability framework. (See Shotwell v. Astrue, Slip Copy, No. 2:10-cv 00349, 2011 WL 3348099, *3 (D. Ariz. Aug.3, 2011)).

[3]

20 CFR § 404.1568(d)(1).

[4]

Saulsberry v. Chater, 959 F. Supp. 1247, 53 Soc. Sec. Rep. Serv. 319, Unempl. Ins. Rep. (CCH) ¶15751B (C.D. Cal. 1997).

[5]

20 CFR § 404.1565(a).

[6]

SSR 82-41, 1982 WL 31389, at *7.