Bird v. Comm'r of Soc. Sec. Admin.

• Decision Date: 09 November 2012
• Docket Number: No. 11–1645.,11–1645.
• Citation: 699 F.3d 337
• Parties: Earl Matthew BIRD, Plaintiff–Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

699 F.3d 337

Earl Matthew BIRD, Plaintiff–Appellant,

v.COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant–Appellee.

No. 11–1645.

United States Court of Appeals,

Fourth Circuit.

Argued: Sept. 18, 2012.

Decided: Nov. 9, 2012.

ARGUED:Timothy Clardy, The Dennison Law Firm, PC, Greenville, South Carolina, for Appellant. Thomas Henry Kraus, Social Security Administration, Denver, Colorado, for Appellee. ON BRIEF:Carole M. Dennison, The Dennison Law Firm, PC, Greenville, South Carolina, for Appellant. William N. Nettles, United States Attorney, Marshall Prince, Assistant United States Attorney, Office of the United States Attorney, Columbia, South Carolina; John Jay Lee, Regional Chief Counsel, Social Security Administration, Denver, Colorado, for Appellee.

Before KING, DUNCAN, and KEENAN, Circuit Judges.

Vacated and remanded by published opinion. Judge KEENAN wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, Earl M. Bird challenges the district court's judgment upholding the decision of the Social Security Administration (SSA) denying his application for disability benefits. The SSA determined that although Bird suffered from Post Traumatic Stress Disorder (PTSD), this condition was not disabling before the last date of his insurance coverage to qualify for an award of Social Security disability benefits. Bird, however, contends that he was disabled before this date. He primarily asserts that the Administrative Law Judge (ALJ) erred in failing to consider medical evidence created after the last date of his insurance coverage, and in failing to accord adequate weight to his disability determination made by the Department of Veterans Affairs (VA). Upon our review, we hold that the ALJ erred in both these respects and, therefore, we vacate the district court's judgment upholding the SSA disability determination.

I.

Bird served in the United States Marine Corps from June 1967 to June 1970. He allegedly suffers from PTSD as a result of his combat experiences in Vietnam. After his return from Vietnam, Bird was employed in various capacities, including as a landscaper, on a commercial fishing boat, and in construction work. Bird changed jobs somewhat frequently because he had experienced difficulty interacting with people.

From 1995 until 2001, Bird and his wife owned and operated a mobile home park in Florida. However, they sold the business in 2001 on the recommendation of the local sheriff, after Bird had engaged in repeated disagreements with tenants requiring intervention by law enforcement agents.

Bird described himself as a person who was “combative, had a hard time dealing with stress, and had difficulty interacting with people.” Bird alleged that his disabling PTSD began on January 1, 2001, the date he stopped working at the mobile home park, which was several years before March 31, 2005, the last date he was insured for purposes of qualifying for Social Security benefits (DLI).

Bird applied for veterans benefits through the VA on June 9, 2006. The VA initially awarded him a 70 percent disability rating for his PTSD, which was revised on November 14, 2007, to a 100 percent disability rating (the VA rating decision). The VA rating decision was effective June 9, 2006, the date Bird applied for VA benefits.

Bird does not have any medical records dating before his DLI. The first medical evidence in the record details his June 2006 visit to a VA clinic, during which Bird reported that he had not obtained medical treatment for many years. The results of a screening test for depression administered at this first visit were negative.

The VA rating decision summarized psychological examinations performed by the VA in September 2006 and in September 2007. The report from the September 2006 examination, conducted by a licensed clinical psychologist, documented Bird's symptoms, including irritability, isolation, withdrawal from others, difficulty sleeping, frequent nightmares, extreme vigilance, an exaggerated “startle response,” suicidal ideation, and “flashbacks.” Bird also related that he had not attended a movie or a sporting event since 1970, and had lost his mobile home business due to his aggression with tenants. The psychologist who conducted that examination diagnosed Bird as having PTSD, and concluded that Bird was “currently experiencing a severe level of impairment in his social and occupational functioning.”

The record from the September 2007 examination, which was conducted by the same licensed clinical psychologist, again reported Bird's PTSD symptoms, including nightmares, isolation, withdrawal, and “difficulty feeling close to his wife and other members of his family.” In this report, the examining psychologist noted that Bird's symptoms had persisted since his return from Vietnam. Other VA clinic notes from 2007 indicated that Bird “has a long history of anger management problems,” and recorded Bird's statement that he “quit going around people” in 2001.

In July 2007, Bird was evaluated by Dr. Spurgeon Cole, a licensed clinical psychologist,who issued a report detailing his findings (the Cole Report). Bird told Dr. Cole about having witnessed significant carnage during his service in Vietnam. Dr. Cole reported Bird's description of “flashbacks,” nightmares, intrusive memories, lack of sleep, significant withdrawal, and isolation. Dr. Cole opined that Bird was depressed and anxious, and concluded that his “primary problem” was PTSD. Dr. Cole further indicated that Bird did not have any friends, did not interact with his neighbors, never had any visitors in his home, did not take vacations, and was “not able to tolerate any social interactions.” Dr. Cole concluded that Bird is not “capable of relating to supervisors or co-workers at any level.”

Bird first applied for disability benefits with the SSA on December 19, 2006. The claim was denied both initially and upon reconsideration. At Bird's request, a hearing later was held before an ALJ in April 2009, during which Bird testified and was represented by counsel.

In a May 2009 decision denying benefits, the ALJ found that although Bird suffered from PTSD before his DLI, his impairment was insufficiently severe to qualify him for receipt of Social Security disability benefits. In reaching this conclusion, the ALJ relied in part on the lack of medical evidence created before Bird's DLI, and the fact that the VA rating decision became effective only in June 2006, 15 months after Bird's DLI. The ALJ also assigned little weight to the Cole Report on the basis that it failed to reflect Bird's pre–DLI condition. The ALJ did not make a finding regarding whether Bird was disabled either when he applied for Social Security disability benefits or at the time of the hearing.

After Bird's request for further review was denied by the Appeals Council of the SSA, Bird filed suit in the district court in South Carolina. He attached to his district court complaint the examinations conducted by the VA in 2006 and 2007, which had been summarized in the VA rating decision. The district court adopted the recommendation of the magistrate judge and upheld the SSA's denial of benefits. Bird timely filed a notice of appeal to this Court.

II.

When examining an SSA disability determination, a reviewing court is required to uphold the determination when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence. 42 U.S.C. § 405(g); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.2005). To establish eligibility for Social Security disability benefits, a claimant must show that he became disabled before his DLI. See42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. §§ 404.101(a), 404.131(a). Bird contests the ALJ's finding that he was not disabled between his proffered date of onset of PTSD, January 1, 2001, and his DLI, March 31, 2005, arguing, among other things, that the ALJ did not give proper consideration to all the relevant evidence.

Bird first contends that the ALJ erred in failing to give retrospective consideration to medical evidence created after his DLI, namely, the evidence summarized in the VA rating decision and the Cole Report. We agree that retrospective consideration of this evidence was required.

Medical evaluations made after a claimant's insured status has expired are not automatically barred from consideration and may be relevant to prove a disability arising before the claimant's DLI. Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir.1987). In Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir.1969), we held that an SSA examiner improperly failed to give retrospective consideration to evidence created between six and seven years after the claimant's DLI, because the evidence could be “reflective of a possible earlier and progressive degeneration.” The possibility of such a linkage, and thus the appropriateness of retrospective consideration of medical evidence, may be enhanced further by lay observations of a claimant's condition during the relevant time period. Id.; see also Cox v. Heckler, 770 F.2d 411 (4th Cir.1985) (remanding for consideration of post-hearing evidence given claimant's progressively deteriorating lung condition).

Our more recent decision in Johnson v. Barnhart, 434 F.3d 650 (4th Cir.2005), is further instructive of the principles we articulated in Moore. In Johnson, after the SSA administrative hearing had concluded, the claimant's treating physician submitted a new assessment identifying additional impairments that were not linked in any manner to the claimant's condition before her DLI. Id. at 656 & n. 8. Because there was no evidence that these impairments existed before the claimant's DLI, we held that the evidence was not relevant, and that the ALJ was not required to give the new assessment retrospective consideration. Id. at 655–56. Thus, our holding in Johnson reinforces the principle applied in Moore...