The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for disability insurance benefits. For the reasons discussed below, the Agency's decision is REVERSED and the action is REMANDED for further proceedings consistent with this opinion.
Plaintiff initially filed applications for disability insurance benefits and supplemental security income on March 3, 1999, alleging that he had been disabled since January 2, 1997. (Administrative Record ("AR") 43.) An Administrative Law Judge ("ALJ") issued a decision on May 10, 2000, finding that Plaintiff was not disabled at any time through that date. (AR 43-47.) Plaintiff did not appeal that decision.
After his application was denied, Plaintiff worked as a driver in 2001 and 2002. (AR 106.) On October 29, 2002, Plaintiff sustained injuries when a cement truck he was driving overturned on the freeway. (AR 241, 514.) On January 22, 2004, Plaintiff filed a new claim for disability insurance benefits, alleging that he had been unable to work since December 13, 2002. (AR 95-97.) The Agency denied it on April 15, 2004. (AR 72-75.) Plaintiff did not seek reconsideration of that denial.
On October 4, 2004, Plaintiff filed another claim for disability insurance benefits. (AR 98-102.) The Agency denied this claim, too. (AR 77-79.) Plaintiff then requested and was granted a hearing before an ALJ. On November 7, 2006, Plaintiff appeared with counsel at the hearing and testified. (AR 510-32.) On February 21, 2007, the ALJ issued a decision denying the application.*fn1 (AR 17-25.) Plaintiff appealed to the Appeals Council, which denied Plaintiff's request for review. (AR 8-11, 14-16.) Plaintiff then commenced this action.
Plaintiff raises two claims of error. He argues first that the ALJ failed to properly consider a disability rating by the Veterans Administration ("VA"). (Joint Stip. at 4-6.) Next, he argues that the ALJ erred in concluding that Plaintiff was not credible. (Joint Stip. at 13-22.) For the reasons discussed below, the Court concludes that the ALJ erred in failing to consider the VA's disability rating but did not err in finding that Plaintiff was not credible.
The ALJ found that the medical evidence established that Plaintiff had "musculoligamentous injury to the cervical and lumbar spine, [and] osteoarthritis of the bilateral knees and left ankle." (AR 24.) He determined that Plaintiff's impairments did not meet or equal a Listed impairment, and that, consistent with the opinion of Dr. Frank Cunningham, a stage agency consultative orthopedist, Plaintiff retained the residual functional capacity to perform a limited range of light work. (AR 22, 24, 489-501.) Relying on the testimony of a vocational expert, the ALJ concluded that Plaintiff could perform work existing in significant numbers in the economy and, therefore, he was not disabled. (AR 23-24.)
In reaching this conclusion, the ALJ noted Plaintiff's obesity, history of knee surgeries in 1976 and 1998, and left ankle surgery in 1998. He also noted that the VA had assigned a disability rating to Plaintiff and had increased the rating from ten percent to 40 percent as of June 16, 2003. The VA considered Plaintiff to be 80 percent disabled after that date. (AR 22.) Other than noting the rating itself, the ALJ did not discuss it in his decision. As explained below, the ALJ's failure to do so requires remand.
The disability rating of the VA is ordinarily entitled to great weight in a social security disability case. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Although an ALJ is not required to simply adopt a VA disability rating, he must consider it in reaching his decision. Id. at 1076. Furthermore, "because of the marked similarity between these two federal disability programs[,]" the ALJ may give less weight to such a rating only if he gives "persuasive, specific, valid reasons for doing so that are supported by the record". Id.
Here, other than mentioning the rating in his recitation of the evidence, the ALJ did not discuss the VA's disability determination.
This was error. The ALJ was bound to set forth "persuasive, specific, [and] valid reasons" for discounting the VA rating. Id.
The Agency appears to suggest that the ALJ was not required to address the June 16, 2003 VA rating because Plaintiff's date last insured was March 31, 2003. (Joint Stip. at 6-7.) The Court disagrees. If that was the reason the ALJ did not consider the rating, he needed to say so. Further, the record shows that the VA rated Plaintiff's disability at 70 percent as of March 31, 2003, his date last insured. (AR 149.) The ALJ did not address this rating, either. So the Agency's argument as to why the ALJ did what he did does not seem to be supported by this record.
Alternatively, the Agency argues that the ALJ did consider the VA's disability rating and implicitly rejected it. (Joint Stip. at 7-11.) It contends that the McCartey requirement that the ALJ give "persuasive, specific, valid reasons" supported by the record for discounting a VA rating is akin to the standard used to weighing conflicting medical opinions. (Joint Stip. at 10.) In the Agency's view, because an ALJ can reject a treating physician's opinion that is contradicted by other evidence in the record "by setting forth a detailed and thorough summary of the facts and conflicting clinical evidence," the ALJ could reject the VA rating by setting forth the evidence and relying on the opinion of the examining orthopedist, Dr. Cunningham. (Joint Stip. at 10-11.)
This argument is rejected. The Ninth Circuit has made clear what is required to discount a VA rating---silently, or impliedly, rejecting it does not meet that standard. Further, it cannot be discerned from the ALJ's decision why the ALJ failed to rely on the VA rating, and the Court, and the Agency, are bound by the reasons set forth in the decision. Where, as here, the ALJ fails to set forth any reasons for rejecting evidence he was required to consider, his decision cannot be affirmed. Stout v. Comm'r, Soc. Security Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Connett v. Barnhart, 340 F.3d 871, ...