FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 24, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court JOHN R. GREEN,
Plaintiff - Appellant,
v. No. 17-7032 (D.C. No. 6:16-CV-00024-KEW) COMMISSIONER, SOCIAL SECURITY (E.D. Okla.) ADMINISTRATION,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, HARTZ, and McHUGH, Circuit Judges. _________________________________
John R. Green is an Army veteran who has been rated 100 percent
unemployable by the Veteran’s Administration (VA) due to his service-related
conditions. Based on this rating, he receives VA disability benefits. He appeals from
the district court’s order affirming the Commissioner’s decision denying his
application for Social Security disability insurance benefits. We reverse and remand
for further proceedings.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Mr. Green filed his application for Social Security benefits on January 27,
2015, alleging he became disabled on May 30, 2012. The Commissioner denied his
application, both initially and on reconsideration. On October 8, 2015, Mr. Green
received a hearing before an administrative law judge (ALJ).
The ALJ determined that Mr. Green had severe impairments including
“degenerative disc disease of the cervical and lumbar spines; knee and hip
impairments; status post abdominal gunshot wound; major depressive disorder; and
[post-traumatic stress disorder (PTSD)].” Aplt. App., Vol. 2 at 13. Given these
impairments, the ALJ assessed he had the residual functional capacity (RFC)
to perform medium work . . . except with lifting no more than 50 pounds at a time; frequent lifting or carrying up to 25 pounds; standing/walking 6 hours out of an 8-hour workday; and sitting 6 hours out of an 8-hour workday. The claimant is able to understand, remember, and [carry out] simple instructions consistent with unskilled work that is repetitive and routine in nature and able to relate and interact with co-workers and supervisors on a work-related basis only with no to minimal interaction with the general public. The claimant can adapt to a work situation with these limitations [and] restrictions and his medications would not preclude him from remaining reasonably alert to perform required functions presented in a work setting. Id. at 15.
The ALJ further determined that with his RFC, Mr. Green was capable of
performing his past relevant work as a spot welder and a feed loader. Alternatively,
given his age, education, work experience, and RFC, there were other jobs that
existed in the national economy that he could perform, including hardware assembler,
final inspector, and laminator. The ALJ therefore concluded that Mr. Green had not
been under a disability from May 30, 2012, through the date of his decision. The
2 Appeals Council denied review, making the ALJ’s decision the Commissioner’s final
decision.
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
On appeal, Mr. Green raises two issues: whether the ALJ failed to properly
consider the disability rating assessed by the VA, and whether the ALJ properly
considered a consulting physician’s opinion. Because the ALJ failed to give proper
consideration to the VA’s disability rating and in particular to the evidence
underlying that determination, we reverse and remand for further proceedings.
1. VA Disability Rating
The VA determined in 2013 that Mr. Green had an overall or combined rating
of 80% disability. This rating was attributed primarily to his PTSD, to which the VA
assigned a 70% disability rating. The VA also assigned ten percent disability each
for his lumbar strain, left and right knee strain, and right hip strain. It paid Mr. Green
disability benefits at the 100% rate, however, finding that he was “unemployable due
to [his] service-connected disabilities.” Aplt. App., Vol. 2 at 185.
In his decision, the ALJ did not mention the VA’s unemployability finding, but
noted the service-connected disability percentages assigned by the VA and then
analyzed the VA’s disability rating, giving it little weight. The ALJ reasoned:
3 The disability determination processes utilized by the Department of Veterans Affairs and the Social Security Administration are fundamentally different. [The] Department of Veterans Affairs does not make a function-by-function assessment of an individual’s capabilities (i.e., determine the claimant’s residual functional capacity) or determine whether the claimant is able to perform either his past relevant work or other work that exists in significant numbers in the national economy as is required by the [Social Security] Regulations. Thus, a disability rating by the Department of Veterans Affairs is of little probative value in these proceedings. Id. at 17-18.
Under the regulations in effect at the time of the ALJ’s decision
[a] decision by . . . any other governmental agency about whether you are disabled . . . is based on its rules and is not our decision about whether you are disabled . . . . We must make a disability . . . determination based on social security law. Therefore, a determination made by another agency that you are disabled . . . is not binding on us. 20 C.F.R. § 404.1504 (2015).1
“Although findings by other agencies are not binding on the [Commissioner],
they are entitled to weight and must be considered.” Baca v. Dep’t of Health &
Human Servs., 5 F.3d 476, 480 (10th Cir. 1993) (internal quotation marks omitted);
see also Grogan v. Barnhart, 399 F.3d 1257, 1262-63 (10th Cir. 2005). In both Baca
and Grogan, the ALJ completely failed to discuss the claimant’s VA disability rating.
In this case, by contrast, the ALJ did discuss the VA rating, but found it of little
1 For claims filed on or after March 27, 2017, the agency has amended its regulations to state that “we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity’s decision that we receive as evidence in your claim.” 20 C.F.R. § 404.1504 (2017).
4 probative value because of the differing standards that apply to VA disability
determinations. The question is whether the ALJ provided sufficient consideration to
the VA’s determination.
In discounting the VA’s rating the ALJ identified three factors that he was
required to analyze, but that the VA had not been required to consider: (1) a
function-by-function assessment of a claimant’s capacities; (2) a determination of
whether the claimant was able to perform his past relevant work; and (3) a
determination of whether the claimant was able to perform work that exists in
significant numbers in the national economy. The ALJ did not explain how his
analysis of these factors in Mr. Green’s case had caused his conclusions about
disability to diverge from the VA’s. But assuming the ALJ’s citation of these factors
provided a sufficient explanation for his rejection of the VA’s disability rating,2
Mr. Green points out a related but more serious deficiency in the ALJ’s analysis.
He argues that in addition to the VA’s ultimate determination about disability, its
disability determination referenced “specific factual finding[s] or evidence” that he
asserts “should have changed the [ALJ’s] decision,” but that the ALJ failed to
consider. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).
Although “an ALJ is not required to discuss every piece of evidence,” he
“must discuss the uncontroverted evidence he chooses not to rely upon, as well as
2 The parties cite several unpublished decisions from this circuit on this issue. Such unpublished panel decisions are not binding on us, see, e.g., Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1224 (10th Cir. 2016), and we need not discuss them here. 5 significantly probative evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576
(10th Cir. 2014) (internal quotation marks omitted). This duty seems particularly
significant where another agency has relied on significant, probative evidence as the
basis for its disability determination, and the ALJ has failed even to mention that
evidence. See Grogan, 399 F.3d at 1262 (“Although another agency’s determination
of disability is not binding on the Social Security Administration . . . it is evidence
that the ALJ must consider and explain why he did not find it persuasive.”).
In determining that Mr. Green’s PTSD was disabling in combination with his
other impairments, the VA cited Mr. Green’s “[n]ear-continuous panic affecting the
ability to function independently, appropriately and effectively”; his difficulties “in
adapting to a worklike setting,” “in adapting to stressful circumstances,” and “in
establishing and maintaining effective work and social relationships”; his
“[o]ccupational and social impairment with reduced reliability and productivity”; and
his panic attacks, chronic sleep impairment, anxiety, suspiciousness, and depressed
mood. Aplt. App., Vol. 3 at 455. To substantiate these conclusions, the VA relied on
the extensive psychological evidence of Mr. Green’s years of treatment for PTSD and
associated anxiety and depression. See id. at 454 (listing evidence relied on by VA).
The mental-health evidence in this case, on which the VA relied, makes up a
significant portion of the more than 1,700 pages of administrative record. The ALJ
disposed of this evidence in less than a page. See id., Vol. 2 at 17. He mentioned
only one specific piece of direct medical evidence concerning Mr. Green’s mental
state, a progress note from December 9, 2014. The remainder of his discussion of the
6 issue was devoted to the opinions and conclusions of agency non-examining
psychologists and to the results of a consultative psychological examination.
The ALJ’s discussion of this opinion evidence was hardly exemplary. The
ALJ stated he assigned great weight to the medical opinion of Dr. Gunter, a
non-examining agency psychologist, finding it “consistent with the totality of
evidence.” Id. But to explain the record support for Dr. Gunter’s opinions, the ALJ
provided only a word-for-word (though unattributed) direct quotation from
Dr. Gunter’s own analysis. Compare id. at 17 with id. at 101. Although this may
show the ALJ believed Dr. Gunter’s conclusions were consistent with Dr. Gunter’s
review of the medical evidence, it reflects no independent corroboration of that
analysis from the medical record.
The ALJ also discussed the results of a consultative psychological examination
of Mr. Green, performed on May 5, 2015, by Kathleen Ward, Ph.D. Notably, the
ALJ’s summary omitted certain significant details of Dr. Ward’s report, including
that Mr. Green was involved in an incident in Afghanistan in which a ten year old
child was accidentally killed, that the incident involved a “half-burnt 10 year old
boy,” id., Vol. 8 at 1698, that he suffers from frequent flashbacks, and that he was
previously hospitalized in Alaska out of concern about suicide risk. The ALJ’s
unattributed quotation from Dr. Gunter’s analysis includes Dr. Gunter’s summary of
Dr. Ward’s report. This summary opines that Mr. Green “was not as anxious as
might be expected if his PTSD was debilitating,” see id. at 17, 101—an observation
not made by Dr. Ward—but it omits Dr. Ward’s specific observations that Mr. Green
7 was “on alert to a limited degree” and that he “dissociate[d]” during discussion of
traumatic events. Id. at 1700.
Turning to some examples of the medical records the VA relied on but the ALJ
did not discuss, on October 31, 2013, Mr. Green reported that he was “[n]ervous,
mad and agitated all the time,” that he “can’t get along with normal people,” and got
“mad about things that are not big deals.” Id. at 1601 (internal quotation marks
omitted). He stated he was “agitated and stressed most of the time.” Id. (internal
quotation marks omitted). He reported a “flashback” incident at his previous job at a
welding shop when a PVC line exploded and “[t]he sound reminded me of
Afghanistan.” Id. (internal quotation marks omitted). He left the job as a result of
the flashback. See id., Vol. 3 at 505. Mr. Green stated he “jumps at noises, sweats
profusely and finds his heart palpitating at various times.” Id., Vol. 8 at 1601. He
reported he was unable to remain employed because “everything and everyone
agitates me.” Id. at 1601-02 (internal quotation marks omitted). The licensed
clinical social worker who met with him reported that his mood was “depressed” and
“anxious.” Id. at 1602.
On November 7, 2013, a psychiatrist assessed Mr. Green with “anxiety and
depressive symptoms as well as insomnia.” Id. at 1597. The psychiatrist provided a
detailed description of his symptoms of anxiety and depression, along with his social
difficulties and memory problems. Id. at 1596.
The record also includes a questionnaire from September 2013 completed by a
VA psychologist who assessed Mr. Green with “[o]ccupational and social
8 impairment” due to his PTSD. Id., Vol. 3 at 504. The questionnaire noted that
Mr. Green had “experienced, witnessed or was confronted with an event that
involved actual or threatened death or serious injury, or a threat to the physical
integrity of self or others,” resulting in “intense fear, helplessness or horror.”
Id. at 505. It described his symptoms, including anxiety and suspiciousness, a
depressed mood, panic or depression, and a chronic sleep impairment. The record
contains an additional questionnaire from November 2, 2011, which noted similar
symptoms. See id., Vol. 5 at 933-44. This, and much more, evidence is present in
the record, relied on by the VA, but not discussed in the ALJ’s decision.
Although the ALJ was not bound by the VA’s conclusion that Mr. Green’s
combined symptoms were disabling, he was required to give the VA’s determination,
and the evidence underlying it, more than a cursory treatment and a perfunctory
dismissal. Because the ALJ failed to conduct a proper analysis of this evidence, we
remand to the district court with instructions to remand to the Commissioner for
further proceedings in accordance with our explanation of the ALJ’s duties in this
order and judgment.
2. Consulting Physician’s Opinion
Mr. Green also argues that the ALJ improperly evaluated and rejected the
opinion of a consultative medical examiner, Dr. Ronald Schatzman. Dr. Schatzman
examined Mr. Green on August 27, 2013. He noted Mr. Green’s complaints and
statements about his medical history, but he does not appear to have reviewed any of
Mr. Green’s medical records. Dr. Schatzman performed a physical examination of
9 Mr. Green, recording essentially normal findings for nearly all of the bodily systems
or functions he examined. See Aplt. App., Vol. 3 at 424-25.
Dr. Schatzman concluded his report with the following assessment:
1. Abdominal pain from gunshot wound 2. Back pain 3. Hip pain 4. Depression 5. PTSD through the VA 6. This gentleman is significantly impaired from activities of daily living.
Id. at 425 (emphasis added).
The ALJ thoroughly described Dr. Schatzman’s findings, but gave the
above-highlighted statement little weight, reasoning “[t]here is nothing in the
objective evidence to show this opinion would be substantiated.” Id., Vol. 2 at 16.
Although the ALJ’s analysis of Dr. Schatzman’s unexplained statement appears to be
supported by substantial evidence, the ALJ may need to reevaluate his reasoning in
light of the remand we have ordered for reconsideration of the medical evidence.3
3. Adverse Credibility Finding
The index to Mr. Green’s opening brief endorses a third issue, whether the
ALJ failed to properly assess his credibility, but he presents no argument on this
issue in the opening brief. “[W]e routinely have declined to consider arguments that
are not raised, or are inadequately presented, in an appellant’s opening brief.”
3 Mr. Green refers briefly to the ALJ’s alleged failure to weigh the other medical reports in the record. See Aplt. Opening Br. at 27-28. This inadequately developed argument has been waived. See Bronson v. Swensen, 500 F.3d at 1099, 1104 (10th Cir. 2007). 10 Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). But here, our review of
the ALJ’s decision reveals what appear to be deficiencies in his credibility analysis
that we feel compelled to mention in light of the remand we now order.
The ALJ opined that Mr. Green’s statements concerning his symptoms were
“not entirely credible for the reasons explained in this decision.” Aplt. App., Vol. 2
at 16. It is unclear which of Mr. Green’s statements the ALJ found not credible. For
example, he did not even mention his testimony about PTSD in his summary of
Mr. Green’s hearing testimony. See id.
Although the ALJ reported that Mr. Green’s receipt of unemployment benefits
“significantly reduce[d his] credibility,” he immediately stated that his denial
decision was “not based on receipt of unemployment benefits.” Aplt. App., Vol. 2 at
18. It is thus unclear whether and to what extent the ALJ relied on Mr. Green’s
receipt of unemployment benefits in reaching his decision. Perhaps the ALJ meant
that the denial was not based solely on Mr. Green’s receipt of unemployment
benefits. Or perhaps (though this would seem to contradict his previous statement),
he meant that the receipt of unemployment benefits played no role in his decision at
all. Such a significant ambiguity concerning the very important issue of the
claimant’s credibility is troubling. The ALJ would be well advised to reexamine the
basis for his credibility findings on remand.
The district court’s decision is reversed, and this case is remanded to the
district court, with instructions to remand to the Commissioner for further
11 proceedings in accordance with this order and judgment.
Entered for the Court
Mary Beck Briscoe Circuit Judge