SHANETTE ROGERS v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Administration
No. 22-1264
United States Court of Appeals for the Fourth Circuit
March 20, 2023
PUBLISHED
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad Jr., District Judge. (3:20-cv-00206-RJC-DSC)
Argued: December 6, 2022 Decided: March 20, 2023
Before KING and AGEE, Circuit Judges, and Henry E. HUDSON, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Agee and Senior Judge Hudson joined.
ARGUED: George C. Piemonte, MARTIN, JONES, & PIEMONTE, PC, Charlotte, North Carolina, for Appellant. David Nathaniel Mervis, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland, for Appellee. ON BRIEF: Michel Phillips, MARTIN, JONES & PIEMONTE, PC, Charlotte, North Carolina, for Appellant. Samantha L. Zeiler, Special Assistant United States Attorney, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland; Dena J. King,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Plaintiff Shanette Rogers initiated this civil action under the Social Security Act in the Western District of North Carolina, contesting the denial of her claim for disability
As explained herein, although we agree with the district court‘s conclusion as to the new SSA rules, we recognize that the Commissioner otherwise erred for reasons that the court did not address. Accordingly, we vаcate the court‘s judgment and remand for the court to further remand this matter for administrative proceedings consistent with today‘s opinion.
I.
The record reflects that Rogers, a resident of western North Carolina, has a master‘s degree in social work that she utilized in her employment from 2000 to 2018. During an earlier time period, from 1988 to 1992, she served in the United States Army and was honorably discharged. In the course of her Army service, Rogers was sexually assaulted — causing, or at least contributing to, post-trаumatic stress disorder (“PTSD“). Rogers began psychiatric treatment through the VA for chronic PTSD in May 2017, and she ceased working in May 2018. After initially ruling Rogers to be 70% disabled, the VA ruled her to be 100% disabled as of September 2018.
In October 2018, Rogers filed her claim with the SSA for disability insurance benefits, alleging a disability beginning in May 2018 based on PTSD, plus depression and anxiety. Following a hearing conducted in October 2019, an SSA administrative law judge (“ALJ“) denied Rogers‘s claim by a decision of December 2019. Although the ALJ deemed Rogers‘s PTSD to be a severе impairment and found that she is unable to engage in past relevant work, the ALJ further found that there are other jobs that Rogers can perform.
Notably, the SSA ALJ acknowledged the VA‘s determination that Rogers is 100% disabled and observed that it could “never be entitled to controlling weight.” See A.R. 19.1 The ALJ nonetheless gave some consideration to the VA‘s determination, as the ALJ commented — without elaboration or explanation — that it was “only partly persuasive.” Id. The ALJ thereby complied with the new SSA rules, under which the VA‘s determination could have been disregarded. See
The SSA Appeals Council denied review of the ALJ‘s decision in February 2020, meaning that the ALJ‘s decision became the SSA Commissioner‘s final decision. Thereafter, in April 2020, Rogers initiated this action against the Commissioner in the Western District of North Carolina, where the parties filed cross-motions for summary judgment and the matter was referred to a magistrate judge. By his Memorandum and Recommendation of Remand of March 2021, the magistrate judge recommended reversing the Commissioner‘s decision and remanding for further proceedings. See Rogers v. Comm‘r of Soc. Sec., No. 3:20-cv-00206 (W.D.N.C. Mar. 23, 2021), ECF No. 18. In so doing, the magistrate judge addressed only Rogers‘s argument with respect to the new SSA rules and agreed with her that the new rules cannot — and thus do not — abrogate this Court‘s precedents.
The magistrate judge‘s recommendation drew prompt objections from the SSA Commissioner. By its Order of January 2022, the district court declined to adopt the magistrate judge‘s recommendation and instead resolved to affirm the Commissioner‘s decision. See Rogers v. Comm‘r of Soc. Sec., No. 3:20-cv-00206 (W.D.N.C. Jan. 13, 2022), ECF No. 23. With regard to the new SSA rules, the district court concluded that the new rules supersede this Court‘s precedents. In reaching that conclusion, the district court utilized a standard enunciated by the Supreme Court in its 2005 Brand X decision: that “[a] court‘s prior judicial construction оf a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” See Nat‘l Cable & Telecomms. Assʼn v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (referring to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)).
From there, the district court approved the ALJ‘s application of the new SSA rules, as well as the balance of the ALJ‘s assessment of Rogers‘s claim for disability insurance benefits. In its analysis, the court addressed many, but not all, of Rogers‘s arguments. Upon thе resultant entry of the court‘s judgment against her, Rogers timely noted this appeal. We possess jurisdiction pursuant to
II.
Where a plaintiff has turned to the federal courts to contest the SSA Commissioner‘s denial of a claim for disability insurance benefits, “a court of appeals applies the same standard of review as does the district court.” See Brown v. Comm‘r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017). Under that standard, the reviewing court must uphold the Commissioner‘s decision “when an ALJ has applied correct legal standards and the ALJ‘s factual findings are supported by substantial evidence.” Id. (internal quotation marks omitted); see
III.
Among the contentions of error raised by Rogers in these court proceedings are that the ALJ failed to apply correct legal standards by (1) adhering to the new SSA rules and failing to accord substantial weight to the VA‘s disability determination, and (2) omitting other significant evidence from the ALJ‘s analysis of Rogers‘s ability to work. For the reasons explained
A.
1.
a.
We begin with Rogers‘s argument regarding the new SSA rules. As background, this Court concluded in our 1983 DeLoatche precedent that an SSA ALJ committed legal error by, inter alia, failing to discuss in his decision a state agency‘s prior disability determination. See DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983). That conclusion was based on the proposition that an ALJ “must present [the reviewing court] with findings and determinations sufficiently articulated to permit meaningful judicial review.” Id. It was also based on the separate proposition that another govеrnmental agency‘s disability determination — though not binding on the SSA — “is entitled to consideration.” Id. at 150 & n.1. In other words, DeLoatche recognized that another governmental agency‘s disability determination must be considered by the SSA, and thus that such a disability determination must be discussed in the ALJ‘s decision so that there can be appropriate court review.
As detailed in our 2012 Bird precedent, the SSA‘s own directives subsequently became consistent with those articulated in DeLoatche. See Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012). Specifically, SSA rules provided that another agency‘s disability determination “is not binding on the SSA.” Id. (citing, inter alia, then-existing version of
In Bird, which involved a disability determination by the VA, we expanded on DeLoatche — and the SSA‘s then-existing directives — by establishing “the precise weight that the SSA must afford to a VA disability rating.” See Bird, 699 F.3d at 343. Our analysis of that issue encompassed both a survey of relevant opinions of our sister courts of appeals and a comparison of the SSA‘s and the VA‘s respective decision-making processes. Id.
Based on our perception that “the purpose and evaluation methodology of [the SSA and VA] programs are closely related,” we concluded that “a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency.” Id. Accordingly, we held “that, in making a disability determination, the SSA must give substantial weight to a VA disability rating.” Id. We allowed, however, that “an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.” Id.
Finally, in our 2018 Woods precedent, we extended Bird‘s holding to a North Carolina agency‘s disability determination, as we also saw a close relationship between
b.
Meanwhile, in early 2017, the SSA had broadly revised its rules regarding the evaluation of medical evidence, with those new rules being applicable to claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017), amended by 82 Fed. Reg. 15,132 (Mar. 27, 2017).3 The new rules were expressly adopted pursuant to the SSA Commissioner‘s statutory authority, see
Relevant here, the new rules identify “[d]ecisions by other governmental agencies and nongovernmental entities” as evidence that “is inherently neither valuable nor persuasive to the issue of whether you are disabled or blind under the [Social Security] Act.” See
The SSA provided a lengthy explanation of the new rules, reflecting the SSA‘s view that the purpose and evaluation methodology of its program actually are not closely related to the purpose and evaluation methodology of other programs, including the VA‘s. See 82 Fed. Reg. at 5848.4 The new rules themselves expound:
Other governmental agencies and nongovernmental entities — such as the Department of Veterans Affairs, the Department of Defense, the Department of Labor, the Office of Personnel Management, State agencies, and private insurers — make disability, blindness, employability, Medicaid, workers’ compensation, and other benefits deсisions for their own programs using their own rules. Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules. Therefore, in claims filed on or after March 27, 2017, 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.
See
Coinciding with the implementation of the new rules, the SSA withdrew its Social Security Ruling No. 06-03p, which had instructed — consistent with this Court‘s precedents — that the disability determination of another agency “cannot be ignored and must be considered.” See Recission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (Mar. 27, 2017), amended by 82 Fed. Reg. 16,869 (Apr. 6, 2017).
Under the new rules, however, the SSA will yet “consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity‘s decision that we receive as evidence in your claim.” See
2.
At bottom, if our DeLoatche, Bird, and Woods precedents remain controlling as to SSA claims (like Rogers‘s) filed on or after March 27, 2017, the SSA ALJ was required to consider and thus also discuss the VA‘s determination that Rogers is 100% disabled. See DeLoatche, 715 F.2d at 150 & n.1. In such a situation, the ALJ was obliged to accord substantial weight to the VA‘s disability determination unless the record before the ALJ clearly showed that some lesser weight was aрpropriate. See Bird, 699 F.3d at 343. And the ALJ could demonstrate the appropriateness of according some lesser weight only by stating persuasive, specific, and valid reasons for doing so that found support in the record. See Woods, 888 F.3d at 692. If, however, the new SSA rules abrogate our precedents as to claims filed on or after March 27, 2017, the ALJ was not required to consider — much less discuss or accord any weight to — the VA‘s disability determination. See
Consequently, we are called upon to decide today whether our precedents or the new SSA rules apply to claims filed on or after March 27, 2017. As did the district court, we look to the Supreme Court‘s 2005 Brand X decision to resolve that issue. See Nat‘l Cable & Telecomms. Assʼn v. Brand X Internet Servs., 545 U.S. 967 (2005). Specifically, we utilize the standard outlined in Brand X for determining whether “[a] court‘s prior judicial construction of a statute trumps an agency construction.” Id. at 982.
Pursuant to the Brand X standard, we must assess whether our precedents
Next, then, we assess under the Brand X standard whether the new SSA rules are “otherwisе entitled to Chevron deference.” See Brand X, 545 U.S. at 982 (referring to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). Where, as here, “the statute is silent or ambiguous with respect to the specific issue,” Chevron identifies “the question for the court” as being “whether the agency‘s answer is based on a permissible construction of the statute.” See 467 U.S. at 843.
Of utmost significance to the Chevron inquiry, Congress has expressly granted the SSA Commissioner “exceptionally broad” rule-making authority. See Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981). The Commissioner‘s statutory authority includes the power to adopt rules (like the new SSA rules) regarding “the nature and extent of the proofs and evidence . . . in order tо establish the right to benefits.” See
Rogers has not offered a cogent basis for withholding Chevron dеference from the new SSA rules, and we perceive none. The new rules are a type that Congress empowered the SSA Commissioner to adopt, they are not manifestly contrary to any provision of the Social Security Act, and they do not strike us as arbitrary and capricious in any way. Notably, it matters not that the new rules constitute a reversal of prior SSA directives, for as Brand X explains, “[a]gency inconsistency is not a basis for declining to analyze the agency‘s interpretation under the Chevron framework.” See 545 U.S. at 981. So long as “the agency adequately explains the reasons for a reversal of policy” — as the SSA plainly has done here — “change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” Id. (internal quotation marks omitted).
In these circumstances, we are constrained to conclude under Brand X that our precedents do not trump the new SSA rules. That is, we agree with the district court that the new rules supersede our precedents and thus apply to claims filed on or after March 27, 2017. We also must agree that the SSA ALJ applied correct legal standards and committed no error in adhering to the new rules and declining to
B.
We therefore turn to Rogers‘s other contentions of error. In so doing, we focus on her meritorious argument that the SSA ALJ failed to apply correct legal standards by omitting significant evidence — beyond the VA‘s disability determination — from the analysis of her ability to work. That argument relates to the ALJ‘s assessment of Rogers‘s residual functional capacity, rendered in the course of the SSA‘s five-step evaluation process. See
A claimant‘s residual functional capacity “is ‘the most’ the claimant ‘can still do despite’ physical and mental limitations that affect her ability to work.” See Mascio, 780 F.3d at 635 (quoting
With respect to her residual functional capacity, Rogers presented evidence to the ALJ that her abilities fluctuate during her menstrual cycle, such that “her functioning [is] drastically worse during [menstruation], as it remind[s] her of being raped during her time in the Army.” See Br. of Appellant 46 (explaining that “Rogers‘s flashbacks and anxiety [are] worst [when she menstruates], and that is when she [is] esрecially prone to abandon routine household chores and isolate herself“). Rogers‘s medical records reflect that “her menstrual cycle continues to be a trigger for her“; that her “[f]lashbacks [have become] more intense and more frequent, especially during [menstruation]“; and that menstruation
“is alarming to her,” in that she “associate[s] the si[ght] of blood with [her] rape that happened in the Army.” See A.R. 252, 264, 289 (internal quotation marks omitted).
Of course, to the extent that the VA‘s disability determination relied on the menstrual cycle evidence, the new SSA rules required the SSA ALJ to consider that evidence. See
Simply put, by omitting the menstrual cycle evidence from the residual functional capacity assessment as to Rogers, the ALJ‘s decision “is sorely lacking in the analysis needed for us to review meaningfully [the ALJ‘s] conclusions.” See Mascio, 780 F.3d at 636-37. That legal error alone demands further administrative proceedings. See id. at 637 (explaining that “[b]ecause we are left to guess about how the ALJ arrived at his conclusions on [the claimant‘s] ability to perform relevant functions . . . , remand is necessary“).7
IV.
Pursuant to the foregoing, we vacate the judgment of the district сourt and remand for the court to further remand this matter for administrative proceedings consistent with our decision herein.
VACATED AND REMANDED