Herrien v. Astrue
2:11-cv-00560
E.D. Va.Feb 21, 2013Background
- Herrien seeks judicial review of the SSA Commissioner’s denial of DIB under 42 U.S.C. § 405(g).
- Action was referred to a United States Magistrate Judge for recommendations.
- Plaintiff filed May 28, 2009 alleging disability onset June 4, 2009 due to back problems (later adding foot issues).
- ALJ’s April 7, 2011 decision found no disability and limited RFC to a sedentary range with sit/stand and other restrictions.
- Appeals Council denied review on August 26, 2011, making the ALJ’s decision the final decision for review; court recommended remand for further proceedings.
- Court cites Bird v. Commissioner and rules that the record requires development regarding VA and OPM disability determinations and weight to be given to those determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ properly weighed medical opinions. | Herrien argues improper weight given to Grant, Kerner, and Cruz. | Herrien contends weight was proper per regulatory factors and record. | Remand for reevaluation of medical opinions. |
| Whether the ALJ adequately described the sit-stand requirement. | Herrien contends insufficient specificity for sit-stand frequency. | ALJ provided a specific sit/stand limitation. | Sit-stand specification deemed adequate for RFC. |
| Whether VA and OPM disability determinations were properly considered. | Bird v. SSA requires substantial weight to VA/OPM determinations; record is silent. | The record did not sufficiently develop VA/OPM determinations. | Remand required to weigh VA/OPM determinations and develop record. |
| Whether ALJ met duty to develop record regarding other federal agency determinations. | ALJ failed to develop record on VA/OPM determinations. | Record was insufficient to assess weight given; remand appropriate. | Remand required for complete development and weighing of VA/OPM determinations. |
| Overall adequacy of the ALJ’s decision given Bird precedent. | Bird controls weight given VA/OPM determinations; remand warranted. | Remand may be appropriate but not necessarily total reversal. | Remand ordered to properly weigh VA/OPM determinations and further develop the record. |
Key Cases Cited
- Craig v. Chater, 76 F.3d 585 (4th Cir. 1996) (substantial evidence standard; evaluating medical opinions)
- Bird v. Commissioner of Social Security, 699 F.3d 337 (4th Cir. 2012) (must give substantial weight to VA/OPM determinations unless deviation is appropriate)
- Thompson v. Astrue, 442 F. App'x 804 (4th Cir. 2011) (sit/stand RFC implications; at-will sit/stand permissible without exact frequency)
- Mastro v. Apfel, 270 F.3d 171 (4th Cir. 2001) (treating physician opinion should be given weight consistent with record)