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Persaud v. Colvin

United States District Court, Fourth Circuit

January 13, 2014

SHANTA PERSAUD, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

ORDER

ROBERT G. DOUMAR, District Judge.

This matter comes before the court on the Plaintiff's Motion for Summary Judgment, filed March 14, 2013, and on the Defendant's Motion for Summary Judgment, filed April 11, 2013. The Plaintiff is seeking judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying the Plaintiff's claim for disability insurance benefits under the Social Security Act.

On February 12, 2013, the Motions were referred to United States Magistrate Judge Douglas E. Miller, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Federal Rule of Civil Procedure 72(b), for a report and recommendation for the disposition of the Motions.

The Report and Recommendation was filed on October 2, 2013. The Magistrate Judge recommended vacating the Commissioner's decision and remanding the case for further administrative proceedings consistent with the Report and Recommendation. By copy of the Report and Recommendation, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. The Defendant's Objections to the Magistrate Judge's Report and Recommendation were filed on October 17, 2013, and the Plaintiff's Response to the Objections was filed on October 24, 2013.

The court, having examined the Objections and Response to the Objections to the Report and Recommendation and having made de novo findings with respect thereto, does hereby adopt and approve the findings and recommendations set forth in the Report and Recommendation of the United States Magistrate Judge filed November 18, 2013. Accordingly, the Defendant's Motion for Summary Judgment is DENIED. The Plaintiff's Motion for Summary Judgment is DENIED to the extent that it seeks an order directing an award of Social Security Disability benefits, and is GRANTED to the extent it seeks remand of this case. The Commissioner's decision is VACATED and REMANDED for further administrative proceedings consistent with this Order and the Report and Recommendation.

The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.

IT IS SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff Shanta Persaud seeks judicial review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for disability insurance under Title II of the Social Security Act 42 U.S.C. §§ 401-434. She alleges several errors, including a claim that the administrative law judge ("ALJ") improperly weighed a Department of Veterans Affairs' ("VA") finding that she was disabled. This action was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).

After reviewing the entire record, the undersigned finds that the Fourth Circuit's decision in Bird v. Commissioner of Social Security , 699 F.3d 337 (4th Cir. 2012) mandates remand to permit the ALJ to re-evaluate Persaud's VA disability rating. Accordingly, this report recommends that the final decision of the Commissioner be vacated and the matter remanded for further review.

I. PROCEDURAL BACKGROUND

On April 3, 2008, Persaud filed her initial application for disability insurance benefits ("DIB"), alleging disability beginning March 1, 2008 due to right shoulder bursitis, back pain, migraines, sinus problems and insomnia. (R. 77, 79). The Commissioner denied her application initially and upon reconsideration. (R. 77). Persaud then requested an administrative hearing, which was conducted on November 5, 2008. Id.

Administrative Law Judge ("ALJ") Tom Duann concluded that Persaud was not disabled within the meaning of the Social Security Act and denied her claim for DIB on December 8, 2009. (R. 74-87). The Appeals Council denied review of the ALJ's decision (R. 88), thereby making the ALJ's decision the final decision of the Commissioner. Persaud made no further appeal at that time.

On March 29, 2011, Persaud filed a second application for DIB, alleging disability beginning December 9, 2009 due to right shoulder bursitis, back pain, migraines, insomnia, tendinitis, sinusitis, and limited motion of the right arm. (R. 94, 204-11). The Commissioner denied her application initially and upon reconsideration. (R. 115). Persaud then requested an administrative hearing, which was conducted on November 16, 2011. (R. 53-73, 115).

Administrative Law Judge O. Price Dodson determined that Persaud was not disabled within the meaning of the Social Security Act and denied her claim for DIB on December 8, 2011. (R. 115-122). The Appeals Council, however, remanded, directing the ALJ to reconsider a medical source statement from Dr. Anita Sager and evaluate post-hearing evidence from Dr. Sager which implied more severe limitations. (R. 127-29). Another hearing was held on May 16, 2012, (R. 34-52), and on June 13, 2012, the ALJ again denied Persaud's claim for DIB. (R. 15-29). The Appeals Council, this time, denied review of the ALJ's decision (R. 1-3), thereby making the ALJ's decision the final decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), on November 26, 2012, Persaud filed this action seeking judicial review of the Commissioner's final decision. (ECF No. 1). This case is now before the Court to resolve the parties' cross-motions for summary judgment. (ECF Nos. 8, 10).

II. FACTUAL BACKGROUND

Persaud, a veteran of the first Gulf War, was born on December 5, 1963, and was forty-six years old at the alleged onset of disability in her second application for DIB. (R. 94, 204). Persaud served on active duty in the United States Navy from March 25, 1986 to March 31, 2006 (R. 204, 303). During that time, she worked as a dental technician. (R. 60). Subsequently, Persaud worked as an administrative assistant for an insurance brokerage firm from 2006 until 2008. (R. 59, 99).

In a September 11, 2008 decision, the VA found that Persaud had service-connected disabilities of sinusitis with allergic rhinitis, migraine headaches, shoulder bursitis, and bilateral chondromalacia patella. (R. 305). This finding warranted a grant of disability severity benefits based on the VA's determination of "individual unemployability" effective February 27, 2008. (R. 305, 309). At the time of the hearing on her claim for Social Security Disability, Persaud received both VA disability benefits and her military retirement. (R. 39, 59).

All of Persaud's treatment has occurred at the VA Medical Center in Hampton, Virginia ("VAMC"). There, Persaud primarily treated with Dr. Anita Sager. (R. 529). In a March 2008 letter addressing Persaud's inability to continue employment, Dr. Sager summarized Persaud's disabilities at that time. Id . She indicated that Persaud suffered from shoulder and back pain, loss of the use of her right arm, and severe migraines. Id . Specifically, according to Dr. Sager, the shoulder and back pain prevented Persaud from sitting comfortably at a desk for more than ten minutes, she could not abduct her right arm greater than forty degrees, and her migraines were "accompanied by dizziness and photosensitivity which make it difficult, if not impossible, to work." Id . Dr. Sager also indicated that non-sedating pain medication had been ineffective, and stronger pain medication had been too sedative to allow for daily employment. Accordingly, Dr. Sager considered Persaud "not employable." Id.

In January 2009, Dr. Sager signed a DMV Certificate of Disability affirming that Persaud was "100% permanently and totally disabled." (R. 354). She indicated that Persaud's permanent disability prevented her from walking 200 feet without rest. Id . In the years ...


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