POWERS v. COLVIN, No. 1:2014cv00272 - Document 15 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/14/2015; this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter b e REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for further administrative action as set out above. To this extent, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 8 ) should be GRANTED and Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be DENIED. (Garland, Leah)
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POWERS v. COLVIN Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA MICÉIAEL Sø. PONTERS, Plaintiff, v CAROLYN \V. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) t:14CY272 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Michael W. Powets, brought this action pursuant to Section 205(9) of the Social Security Act (the "Act'), as amended (42 U.S.C. $$ a05G), to obtain review of a ftnal decision of the Commissioner of Social Security denying his claims for a Petiod of Disability ("POD') and Disability Insurance Benefits ("DIB") under Title II of the Act. The Cout has before it the cenifìed administtative tecotd and cross-motions fot judgment. I. PROCEDURAL HISTORY Plaintiff filed an application for a POD and DIB on October 20,201.0 alleg¡ng disability onset date of Septembet 1,5,2002. Çr. 1,1, 11,8-21.)1 a The application was denied initially and upon teconsideration. Qd. at 51-34.) Plaintiff requested a heanng befote an dministrative Law Judge ("ALJ'). (d. at 85.) Ptesent at the August 6, 201.2 heating wete Plaintiff and his attorney. Qd. at21,-50.) A vocational expett also testified telephonically. 1 Transcrþt citations refer to the administrative tecotd. (Docket Entry 6.) Dockets.Justia.com (Id.) t the headng, Plaintiff amended his alleged onset date of disabiJity from September "1.5,2002, to January 26,2006. (Id. at 11,24.) The IJ determined in his Septembet 28, 201.2 decision that Plaintiff was not disabled under the 201,4 ct. (Id. at1,1,-21,.) OnJantary 28, the Appeals Council denied Plaintifls request fot review, making the AIJ's determination the Commissioner's final decision for review. (Id. at 1,-6.) II. FACTUAL BACKGROUND Plaintiff was foty-six yeats old on the alleged disability onset date, was able to communicate in English, and had past televant work as a ttuck ddver and coach cleaner. (Id. at 1.7 ,24,21,-49.) III. STANDARD FOR REVIEW The Commissionet held that Plaintiff was not under a disability within the meaning of the Act. Under 42U.S.C. $ a05(g), the scope of judicial review of the Commissioner's final decision is speciûc and narrow. Smith u. Schweiker,795 F.2d 343,345 (4th Cir. 1986) This Court's teview of that decision is limited to determining whether thete is substantial evidence in the tecotd to support the Commissioner's decision. 42U.5-C- $ a05(g); Hønter Sulliuan,993 tr.2d 3"1., Substantial evidence adequate u. 34 (4th Cir. 1,992); Hals u. Salliuan,907 F.2d 1453, 1456 (4th Ctu. 1990) is "such televant evidence as resonable mind might accept to support a conclusion." Hanter, 993 tr.2d at 34 (citing Nchard¡on U.S. 389, 401 (1,971)). as u. Perales, 402 It "consists of mote than a mere scintilla" "but may be somewhat less thana ptepondet^nce." Id. (qtolJLngL^aws u. Celebre77e,368tr.2d640,642 (4th Cir. 1966)) The Commissionet must make findings of fact and tesolve conflicts in the evidence. Ha1s,907 F.2d ^t 1.456 (citing King u. Califuno, 599 2 F.2d 597, 599 (4th Cir. 1,979)). The Coutt does not conduct a de novo review 795 tr.2d Schweiker, undettake to ^t of the evidence nor 345. In reviewing for re-weigh conflicting evidence, of the Commissionet's fìndings. substantial evidence, the Court does not to make ctedibility detetminations, or to substitute its judgment for that of the Commissionet. Craigu. Chater,76tr.3d 585, 589 (4th Clr. 1,996) (citing Hqq907 F.2d ^t 1,456). "'Where conflicting evidence allows teasonable minds to differ as to whethet a claimant is disabled, the tesponsibility for that decision falls on the fCommissioner] (or the fCommissioner's] designate, the ALJ)." Cmig 16 tr.3d 589 ^t (quoting lWalker teversed only F.2d 635,640 (7th Cir. 1987)). The denial of benefits will be u. Bowen,834 if no reasonable mind detetmination. See could accept the tecotd as adequate to suppott the Ncltardson, 402 U.S. at 401. The issue befote the Coutt is not whethet Plaintiff is disabled, but whether the Commissionet's fìnding that Plaintiff is not disabled is supported by substantial evidence and was teached based upon televant law. See id.; Cofnan u. ^ conect application of the Bowen,829 tr.2d 51.4, 517 (4th Cir. 1,987). rv. THE ALJ'S DISCUSSION The Social Secudty Regulations define "disability" for the purpose of obtaining disability benefìts under the reason of r\ct as the "inability any medically determinable physical to do any substantial gainful activity by ot mental impairment2 which can be expected to tesult in death or which has lasted ot can be expected to last fot a continuous pedod of not less than 1,2 months." 20 C.tr.R. S 404.1505(a); see also 42 U.S.C. $$ az(d)(1)(a), 1382c(a)(3)(). To meet this de{inition, a clatnant must have a sevete impairment which ' A "physical or mental impairment" is an impairment resulting ftom "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. SS 423(dX3). J makes it impossible to do ptevious work or substanial gainfil activity3 that exists national economy. 20 C.F.R. S A. 404.1505(a); see also 42 U.S.C. S The Five-Step Sequential Analysis disabled, which is set forth in 20 C.F.R. SS 4 tr.3d 473, 47 5 n.2 (4th Cn. 1,999). The (1) 'V7hethet 404.1520. See Albright if If the claimant is u. Comm'r of Soe Sec. Admin., ,{IJ must determine in sequence: the claimant is engaged in substtntal gainful activity claimant is working). Q) the 423(dX2XÐ. The Commissioner follows a five-step sequential analysis to ascettain 17 in (2.e., whether the so, the claimant is not disabled and the inquiry ends. l7hether the claimant has a severe impairment. If not, then the claimant is not disabled and the inquiry ends. (3) Whethet the impairment meets or equals to medical cdtetia of 20 C.F.R., Pat 404, Subpart P, ppendix 1, which sets forth a list of impairments that warraLnt a finding of disabiJity without considedng vocational cÅteria. zi disabled and the (4) 'Whethet If so, the claimant inquiry is halted. the impairment prevents the claimant from perfotming past televant work. If not, the claimant is not disabled and the inquiry is halted. (5) 'Whethet the claimant is able to perform any othet work considedng both his residual functional capacitya and his vocational abilities. If so, the claimant is not disabled. 3 "substantial gainful acivi:y" is work that (1) involves performing sigqifrcant ot ptoductive physical or mental duties, and Q) is done (or intended) forpay or profit. 20 C.F.R. SS 404.1510. a "Residual functional capaciq" is the most a claimant can do in a work setting despite the physical and mental limitations of his impairment and any telated symptom (e.9., pan). See 20 C.F.R. SS 4 20 c.F.R. SS 404.1s20. Here, the .,\LJ frst determined that Plaintiff activity since his amended alleged onset date of (It. 13 insuted ("DLI") of Decembet 31, 2006. had not engaged in substantial gainful January 26, 2006, through his date last ) The ,{IJ next found in step two that Plaintiff had the following severe impairments: history of frostbite of the hands and feet, and status post open teduction internal fìxation of the left ankle, subsequent additional irþation and debridgemerrt for infection, and removal of hardwate. (Id.) At step thtee, the ,{LJ found that Plaintiff did not have an impaitment or combination of impairments listed in, ot medically equal to, one listed in ppendix 1. (Id. at 1,3-1,4.) ,{t the foutth step of the sequence, the ALJ detetmined that Plaintiff was not disabled fromJantary 26,2006, thtough Decembet 31,2006, because he could perform his pastrelevantwotk as a truck ddver and coach cleanet. (d. at 1,7 .) B. Residual Functional Capacity Determination Ptiot to step four, the ALJ determined Plaintiffls RFC based on his evaluation of the evidence. Qd. at 14-1,7.) The ALJ determined that Plaintiff retained the RFC to petform a wide range of medium work. Qd. at 14.) Specifìcally, the ALJ concluded that Plaintiff could lift and c try maximum of fifty pounds at a ttrrre occasionally and could frequently lift ^ and carly twenty-five pounds, could stand or walk for at least six houts in an eight hout wotkday, could sit fot at least six hours in an eight hout wotk day, could push and pull with upper and lowet extremities, could petform activities requiting bllateral mantal dexterity fot both gross 404.1,545(a)(1),416.945(^)(t); see also Hines y Barnhart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both a "physical exertional or strength limitation" that assesses the claimant's "abiJity to do sedentary, light, medium, healry, or very heatry work," as well as "rìonexertional limitations (mental, sensory or skin impairments)." Ha// u. Harris, 658 F.2d 260,265 (4th Cir. 1981). 5 and fìne manipulation with teaching and handling. (Id.) Additionally, the ALJ concluded that Plaintiff should avoid concentrted exposure to extreme cold, and could climb ramps and stairs, and balance occasionally with no additional postutal limitations. (Id.) Last, the ALJ concluded that since Plaintiff had no mental limitations, he retained the mental capacity to perform semi-skilled work activity. (Id. at 1.4.) C. Past Relevant Work The ALJ found in step four that Plaintiff could perform his past relevant work as a truck ddver and coach cleanet as it was actually and generally petfotmed. (Id. ^t 1,7 .) V. ANALYSIS In peninentp^rt,Plaintiff contends that the ALJ ered by failing to considet disability tankings ftom the Department of Veterans Affaits. pocket E.ttty 9 at 4-5.) Plaintiff asserts that this failure violates SSR Ruling 06-03p, which required the detetminations of other government IJ to considet the disability agencies, and the Fourth Circuit's decision in Bird u. Commissioner,699F3d337 (4th Cir. 201,2), which requites the ALJ to give weight to such detetminations. Qd.) In futthet support, Plaintiff states: Though the VA decision on file was tendered in 201,1, (Ir 200), it is relevant to the time period before December 31, 2006 t¡ecause the percentages telating to Mr. Powets' frostbite injuties (which he sustained while serving in Germany in 1981) wete assigned many years befote the date last insured ("DLI"). Qr 295;458). His medical recotds teflect treatment for these conditions from 2002 (his original alleged onset year) up until the latest records on file. As testified to at his headng, Mr. Powets has suffeted from periphetal neuropathy in his hands and feet fot many yeats fot which he has teceived treatment at the VA Hospital. His records confìrm treatment with medications (Gabapentin and Vicodin) fot numbness, tingling, 6 pain and other manifestations of cold injury and tesultant pedphetal neuropathy from 2002 throteh his DLI and beyond. (See e.g. Tr 295; 330-314349-53;458). ,,\ February 23, 2006 VA tecord also references the fact that he akeady had service connected disability of 30o/o for each of his hands and feet for a total disability tating of 80o/o. Qr 392-93). As the 2011 decision rì.otes, these disability tatings had abeady been in place fot years and constituted the largest percentages he could receive fot cold injuries absent amputation. (Ir 205). They wete assigned due to his difficulty with daily living activities, difficulty with ambulation and inability to drive due to natcotic medication management. (Tt 202-03). Therefote, the ALJ's failure to considet these VA disability tatings and the decision explaining these ratings constitutes serious error tequiring temand pursuant to Bird and Soc. Sec. Ruling 06-03p fot ptopet consideration. (Docket Entty 9 at 5.) Consequendy, evaluating the strength of PlaintifPs argument requires an undetstanding of Bird u. Commis¡ioner, 699 tr.3d 337 ,343 (4th Cn. 201,2) and SSR 06-03p. l¡. Bird v. Commissionet In Bird, the Fourth Circuit considered two issues.s F'irst, it addressed when an ALJ must give retrospective consideration to medical evidence generated aftet the DLI. s in this case, the claimant in Bird argued that the ALJ ered in failing to consider retrospectively evidence in the fotm of a VA rating decision cteated aftet the DLI. Bird, 699 tr.3d at 338-39, 340. The Fourth Cfucuit held that the ALJ was tequired to give tetrospective considetation to the VA's determination, even though it post-dated the claimant's DLI, because the evidence placed the claimant's "symptoms in the context of his wotk and social histories, drawing link be¡ween his cuffent condition and his condition predating his DLI." a Id. at 342. The Fourth Circuit explained that "fm]edical evaluations made after a claimant's insured status t The Fonrth Circuit issued Bird after the ALJ rendered his Decision in this matter. Nevertheless, Bird does not declate new principles of Social Secutity law so much as apply those ptinciples already existing. 7 has expired are fl.ot automattcally barred from consideration and may be televant to prove a disability arising before the claimant's generally is admissible DLI." Id. at 340. "fP]ost-DLI in an SS disability determination in medical evidence such instances in which that evidence petmits an infetence of linkage with the claimant's pte-DLI condition." Id. at 34'1. "fR]etrospective consideration of is evidence persuasive as to rule out any linkage appropriate when the tecotd is not so of the final condition of the claimant with his eatlier symptoms." Id. (internal quotation marks omitted). Second, in Bird, the Fouth Circuit addressed "the precise weight that the SSA must afford to a VA disability rating." Id. at343. In addtessing this question, the Fourth Circuit noted that, "the V and Social Security programs serve the same governmental pu¡pose of providing benefits to persons unable to work because of a serious disabiJity." Id. It reasoned futher that "þ]oth ptograms evaluate a clairnant's abiüty ^t343. to perfotm full-time work in the natúonal economy on a sustained and continuing basis; both focus on analyztnga claimant's functional limitations; and both require claimants to present extensive medical documentation in support of theit claims." Id. (quotations omitted). From this the Foutth Citcuit concluded that "þ]ecause the purpose and evaluation methodology of both programs agencies is highly relevant making are closely telated, a disability tating by one to the disability detetmination of the other agency." Id. Thus, "in a disability determination, the SSA substantial weight of the two to a VA disability rz;:ung." [Social Security Administration] must give Id. "However, because the SSA employs its own standards for evaluating a clatmant's alleged disability, and because the effective date of coverage for a claknant's disability under the ¡wo programs likely will vary, an ALJ may give 8 less weight to à VA disability rating when the record before the ALJ cleady demonstrates that such a deviation is appropdate." the AIJ erred in finding Bird's Id. Consequently, the Fourth Circuit held in Bird that VA disability nlngirrelevant based solely on the fact that the V decision became effective aftet Bird's DLI. See id. ^t 346 ("[B]ecause the AIJ made two errots of law in conducting his analysis of the evidence concetning the issue whether Bird was disabled befote his DLI, we vacate the district court's judgment and remand the case to the distict court for further temand to the ALJ fot ptoceedings consistent with the ptinciples of law expressed in this opinion."). B. .9SA 06-03p The Social Security Rulings also speak to whether and when an ALJ is obligated to consider disability detetminations from other agencies. Accotding to SSR 06-03p: Our tegulations make cleat that the fìnal tesponsibility for deciding certatn issues, such as whethet you are disabled, is reserved to the Commissioner . . . . However, we are tequired to evaluate all the evidence in the case tecord that may have a bearing ori our detetmination or decision of disability, including decisions by other Therefore, governmental and nongovernmental agencies evidence of a disability decision by anothet governmental or nongovernmental agency cannot be ignored and must be considered. SSR 06-03p, Considering Opiaions and Other Euidence From Soarce¡ l{4to Are Not 'Acceþtable Medical Slxlrces" in Disability Clairn:; Considering Dedsions on Disabitlþ bjt Other Couernmental and Nongouernmental Agencies,2006 20 c.F'.R. S WL 2329939, 20 C.F.R. S 404.1512þX5); ^tx6 Q006); see also 404.1504. C. The ALJ's Failure to Address the VA Determinations Was Ertot, the Error Was Not Harmless, and Remand Is Propet. Flere, the record contains two VA disability detetminations generated aftet Plaintiffs 9 DLI, neither of which the ALJ considered in concluding that Plaintiff Defendant's Bdef, Docket E.rt y 13 at J annry 201,1, V A determinations [.] I ("ff]h. AIJ was not disabled. (See did not considet the July 2008 ot the "). The 2008 VA Determínation The first document to consider is a July 30,2008 V-,\ Rating Decision. Qr. 537-40.) It only considered Plaintiffs cold-telated injuries, because those wete his only service connected conditions. (Id.) The 2008 V,{. Rating Decision concludes that Plaintiff still has considerable limitations stemming from his cold-related injudes. Specifically, the V,{ concluded that "the following service connected conditions haven't changed" "Left foot Left hand cold injury Right foot cold injury cold injury - cold injury - 30o/o." (Id. at 536.) The V-4. goes on to conclude that: 30o/o; Entitlement to - 30o/o, individual - 30o/o, unemployability cannot be established at this time. The medical evidence of tecotd does not objectively show that your sewice connected conditions make you unable to secure or follow substantially gainful employment. Although the symptoms of yout cold injury would interfere with physical employment, the evidence does not objectively show that the cold iniuries ate so severe as to preclude such employment. In addition, the recotds do not show that you would be unable to secure or follow sedentary employment. Futther, there are inconsistencies in the infotmation you have provided in tegard to employment (you indicated to us that you last worked in 2004 and that you became too disabled to work in July of that yeat, however in a repott from VA OPC Winston-Salem dated JuIy 27 ,2007 , you teported that you last worked 1.5 yeats prior to that date as a truck dtiver - approximately February of 2006 - and that employment was terminated because you lost your license as the company you worked for did not pay a parking ticket fot you). In the treatment reports, the bulk of the curtent treatment teceived is for conditions for which you are not service connected. 10 Right hand The evidence does not show that yout cold weather injuries are of such severity to pteclude employment, nor is thete evidence that significant treatment is teceived fot these conditions. Since the above is the case, you have not been found to be unable to secure ot follow substantially gainful employment as a tesult of yout sewice connected conditions at this time. (Id. at 540.) The 2011 VA De termínation The second document to considet is a January 26,201,L, V,\ Rating Decision. (Id. at 199-208.) The 201.1, V determination '1,5,201.0. (Id. at 201.) Specifically, the declares Plaintiff to be unemployable as of Octobet VA concluded that Plaintiff still had a 30o/o limita:.!.on in all of his extremities from cold injudes; but now also exhibited a 50o/o limitation tesulting from an adjustment disorder and mixed anxiety and depressed mood, effective October 201,0; and a 10o/o ßmitation stemming from degenerative disc disease of the lumbat 15, spine with residualpain and limitation of motion, also effective Octobet 1,5,201,0. (Id.) D. Discussion Plaintiff faults the ,ALJ for failing to address or considet the VA Rating Decisions described above. (Docket Entty 9 at 4-5; Docket Entry 1,4 at 3.) concedes that the ALJ did not address or consider the 2008 and 201.1, but argues that any temand would be futile. @ocket E.rtty considet the July 2008 ot 1.3 Defendant, in turn, YA Rating Decisions, at 7 ("the AIJ did not the Jantary 2011 determinations'), 16-1.8.) This is because, according to Defendant,if the ALJ wete to considet the 2008 and201.1, VA determinations, they would not alter his decision in any meaningfulway. (Id.) Fot the following reasons, the undersþed concludes that Plaintiff has the better position hete and that a remand is proper. First, the 2008 and 201,1VA Rating Decisions are lt relevant to the time pedod before December 31, 2006, the critical time pedod hete. As Plaintiff corectly points ouq this is because the petcentages telating to Plaintiffs ftostbite injuries-which were sustained while he was serving in Getmany in 1981-were years before the A*y DLL (See, e.g., Tr. 1,99-207 , 284, 295, 458, 535-40,537 ('You served in the from Septembet 25, 1978 to February 23, 1,981").) These disability tatings were in place fot yeats-including through and beyond Plaintiffs DLI-and constituted peîcentages he could receive for cold injuties absent amputation. (See, e.g., id. 93.) Consequently, under Bird and SSR 06-03p, the ALJ was obligated weigh these VA disability determinations, which he did not legal assigned the latgest ^t205-06,392- to consider and do. The ALJ's failue here was erot. Second, Defendant's argument that the 2008 V.,q. determination "negates infetence of linkage" between the 201,1, ^îy V,{. determination and Plaintiffls pre-DLI condition, and therefore relieves the ALJ of his obligation to consider the 201.1. VA determination, is unpersuasive. (Docket E.,try 13 at 17.) This is because: (1) Defendant's approach tequires this Court to consider, evaluate, reconcile, and weigh both VA detetminations in the fìrst instance, which is the purview of the 1,J-J, Q) Defendant's apptoach begs the question of whether the 2008 V determination itself is also rnaterially linked to the time period befote December 3"1, 2006, (3) while the 2008 V,{. determination does unemployable, it does suggest not declate Plaintiff a restriction to sedentary work for his cold injuries alone, which is mote restrictive than the medium RF'C the A{ set in this case, and (4) as a result, the recotd is not so persuasive as to rule out any linkage between the VA determinations and PlaintifPs pre-DLI condition. Thetefote, Defendant's argument that this Court should find t2 that the 2008 VA detetmination negates any linkage between Plaintiffs pte-DLI condition and the 201,1, VA determination is not well taken. See Craig 7 6 F.3d at 589 (coutt must "not undertake to re-weigh conflicting evidence, make ctedibiJity determinations, or substitute our judgment for that of the Sectetary"). Third, Defendant would have the Court adopt its extensive harmless enot and conclude that as a general ^îy remaLnd here would be futile. (Docket Etrtty 1.3 analysis at 17-'1.8.) However, proposition, "a court may not guess at what an agency meant to say, but must instead testrict itself to what the agency act:ually did say." Nken u. Holder,585 F.3d 81.8, 822 explained, the AIJ's failure to considet and weigh the 2008 and 201.1 VA (4th Cit. 2009). -,{.s determinations is a setious procedural etrot. See Bird, 699 F.3d ^t 343 ("[U]nder the ptinciples governing SSA disability determinations, another agency's disability determination cannot be ignoted and must be considered."); Batchelor u. Coluin, No. 5:11-CV-533-trL.,2013 WL 1810599, x3 @,.D.N.C. April 29, 201,3) ('A ptocedutal error is not made harmless simply because the aggrieved paty appeats to have had little chance of success on the medts aÍryway. Explicit consideration of relevant evidence is impotantas a teviewing court cannot determine if findings are unsupported by substantial evidence unless the Secretary explicitly indicates the weight given to all of the relevant evidence") (citations omitted); Sags u. Astrue, No. 4:1'1,-CY-1,28-FL, 2013 WL 466406, * 3-4 (E,.D.N.C. February 7, 201,3) (concluding that "while the government asks the court to evaluate the VA disability determination itself to decide whether determination, it would, ot would not, have any bearing on plaintiffs it is not the province of this court to teweigh evidence that the disability A{ must itself consider in the fì-tst place"). The ALJ's failute to discuss and explicitly assign weight to l3 the 2008 and 201,1, disability detetmination tequires temand. Bird, 699 F.3d at 343, n.1. ("The Commissioner cofltends that the evidence undetþing the V-A rating decision shows that Bird's condition detedorated after his DLI. Because we conclude that the ALJ committed legal ertor by failing to consider propedy all the recotd evidence, an assessment of the weight of the evidence must be left to the ALJ on temand in the ltst Batchelor, 201,3 WL 1810599, x 3; Sugq 201.3 WL 466406, * instance."); 3-4.6 Fouth, even considering Defendant's proposed remand analysis on its own terms, it is not inconceivable that a different administrative conclusion could be reached on temand. See, e.g., Aastin u. Astrue, No. 7:06-CY-00622, 2007 WL 3070601, x6 (.!í.D.Va. Oct.18, 2007)) Qrolding that "[e]rors are harmless in Social Secutity cases when it is inconceivable that a different administrative conclusion would have been reached absent the errod') (citing Camp u. Massanari,22tred. App'* 311 (4thCn.2001)). As noted, the 2008 found Plaintiff capable of sedentary work. In VA determination contrast, the ALJ's detetmination found Plaintiff capable of medium work. The -AIJ futher found that Plaintiff could pedotm his previous work as a truck ddver a¡d a coach cleaner. The vocational expett chancteitzed these jobs as, and the ALJ found them to be, medium work and not sedentary 17.) Itis ptopet to provide work. (Ir. at the ALJ an opportunity to address issues such as this on temand. u Thir is not to suggest thzLt fuhrte determination by the ALJ that Plaintiff was not disabled is ^ necessarily unsustainable in light of the 2008 and 2071, YA determinations. In Bird, the Fouth Circuit specifically identified the fact that "the SSA employs its own standards for evaluating a claimant's alleged disability" as one ground which may justiS' deviation from substantial weight and noted further rJrrat a deviation is proper "wherì. the recotd before the ALJ cleatþ demonstrates" it. Bird, 699 F.3d at 343. The ALJ may conclude on the evidence presented in Plaintiffs case that those different standards are material to Plaintiffs claim for disability and rightly justify depating from the substantial weight presumption, or the ALJ may considet the entjre recotd and conclude that a deviation is warranted. Here, however, the ALJ apparently failed to consider the entite record in the first instance, and as a result, remand is the appropriate temedy. l4 In sum, the fact that the V disability determinations in this case fell outside the claimed disability date range is not enough, in itself, to disctedit the determinations. The ALJ did not discuss the V disability determinations in this case in any respect, and impossible it is fot the court to detetmine why the ALJ did not do so. While the Defendant argues that the Coutt need not temand because the failute to discuss ot consider the VA detetminations is harmless error, the coutt disagrees that the enot is hatmless in this case. lthough Plaintiff raises additional issues in his brief, the Coutt declines their considetation at this irme. Hancocþ. u. Barnhart, 206 F . Srrpp. 2d 7 57 ,7 63-7 64 CX/.D. Ya. 2002) (on temand, the ALJ's ptiot decision has no pteclusive effect, as it is vacated and the new headng is conducted de novo). VI. CONCLUSION Aftet a carefil consideration of the evidence of tecord, the Coutt finds that the Commissioner's decision is not supported by substantial evidence. Accordingly, this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the mattet be REMANDED to the Commissionet undet senterìce four of 42 U.S.C. S 405@. The Commissioner should be directed to remand the matter to the,{LJ fot futhet administtative action as set out above. To this extent, Plaintiffs Motion fot Judgment on the Pleadings @ocket Entry 8) should be GRANTED and Defendant's Motion for Judgment on the Pleadings @ocket E.rtty 1.2)be DENIED. ter nited States Magistrate Judge January 201,4 l5
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