United States District Court, C.D. California, Eastern Division
MEMORANDUM OF DECISION
ANDREW
J. WISTRICH United States Magistrate Judge
Plaintiff
filed this action seeking reversal of the decision of
defendant, the Commissioner of the Social Security
Administration (the “Commissioner”), denying
plaintiff’s application for disability insurance
benefits. The parties have filed a Joint Stipulation
(“JS”) setting forth their contentions with
respect to each disputed issue.
Administrative
Proceedings
Plaintiff
alleges disability beginning on May 4, 2011 due to
post-traumatic stress disorder (“PTSD”) and
injuries to his shoulders, back, feet and knee.
[Administrative Record (“AR”) 86, 175]. On August
20, 2014, the Administrative Law Judge (“ALJ”)
issued a written hearing decision denying benefits. [AR
21-32]. The ALJ found that plaintiff had the following
“severe” impairments: history of coronary artery
disease, status post myocardial infarction and coronary
artery bypass graft surgery, degenerative disc disease,
bilateral shoulder impairment, left knee impairment, right
Achilles tendonitis, and PTSD. [AR 23]. The ALJ determined
that plaintiff retained the residual functional capacity
(“RFC”) to perform a reduced range of light work.
[AR 25]. Based on the testimony of a vocational expert, the
ALJ determined that plaintiff could not perform his past
relevant work as a contractor, but that he could perform
alternate jobs that exist in significant numbers in the
national economy, such as an addressor, window shade sewer,
and almond hand blancher. [AR 30-32]. Accordingly, the ALJ
found that plaintiff was not disabled at any time through the
date of his decision. [AR 32]. On January 16, 2015, the
Appeals Council denied plaintiff’s request for review
of the ALJ’s decision. [AR 1-6].
Standard
of Review
] The Commissioner’s denial of benefits should be
disturbed only if it is not supported by substantial evidence
or is based on legal error. Brown-Hunter v. Colvin,
806 F.3d 487, 492 (9th Cir. 2015); Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
“Substantial evidence” means “more than a
mere scintilla, but less than a preponderance.”
Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
Cir. 2005). “It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005) (internal quotation marks omitted). The
court is required to review the record as a whole and to
consider evidence detracting from the decision as well as
evidence supporting the decision. Robbins v. Soc. Sec.
Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco
v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
“Where the evidence is susceptible to more than one
rational interpretation, one of which supports the ALJ's
decision, the ALJ's conclusion must be upheld. Thomas
v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d
595, 599 (9th Cir. 1999)).
Discussion
Plaintiff’s
sole contention is that the ALJ failed to give sufficient
reasons for rejecting a determination by the Department of
Veterans Affairs (“VA”) that plaintiff is
disabled. [JS 4-10].
On
October 10, 2013, the VA issued a decision granting plaintiff
a service-connected disability rating of 10% due to his left
knee injury, 70% due to PTSD, 20% due to arthritis of the
right shoulder, 20% due to his back problems, 10% due to
arthritis of the right ankle, 10% due to sciatica/sensory
deficit of the left lower extremity, and 10% due to
sciatica/sensory deficit of the right lower extremity. [AR
446-447]. The VA determined that plaintiff was entitled to an
award of 100% of benefits for individual unemployability,
effective October 25, 2011.[1] [AR 441]. The VA noted that
although plaintiff’s physical impairments would permit
“[l]ow to moderate physical and all sedentary
activities of employment, ” plaintiff’s
“PTSD with major depression [was] severe and
intefere[d] substantially with [his] ability to secure and
retain gainful employment.” [AR 449]. Thus, the VA
concluded that plaintiff was unable to work due to his
service connected disabilities and was entitled to a finding
of “individual unemployability.” [AR 441, 446].
An ALJ
must ordinarily give great weight to a VA determination of
disability. McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002). “While a VA disability decision
does not necessarily compel the [Social Security
Administration] to reach an identical result, the ALJ must
consider the VA’s finding in reaching his decision
because of the similarities between the VA disability program
and the Social Security disability program.” Hiler
v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012) (internal
quotation marks and ellipsis omitted). However, because the
standards for evaluating disability under the two programs
are not identical, “the ALJ may give less weight to a
VA disability rating if he gives persuasive, specific, valid
reasons for doing so that are supported by the record.”
McCartey, 298 F.3d at 1076; see also Valentine
v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 695
(9th Cir. 2009).
In his
decision, the ALJ noted that the “VA and [Social
Security Administration] criteria for determining disability
are not identical, ” and that he may give “less
weight to a VA disability rating” so long as he
provides “persuasive, specific, valid reasons for doing
so that are supported by the record.” [AR 30]. The ALJ
then stated that he had “considered and included most
of the identified impairments found in the rating decision
and [had] considered such impairments in formulating
[plaintiff’s] maximum residual functional
capacity.”[2] [AR 30].
The
ALJ’s discussion of the VA disability rating was
insufficient. Although the ALJ purported to have read and
considered the VA’s disability determination, his RFC
assessment implicitly rejected the VA’s finding that
plaintiff’s combined mental and physical impairments
precluded employment. The ALJ erred by failing to articulate
any persuasive, specific, and valid reasons for rejecting the
VA’s disability rating. See Hamblin v. Astrue,
2009 WL 113858, at *2 (C.D. Cal. Jan. 14, 2009) (stating that
“[t]he Ninth Circuit has made clear what is required to
discount a VA rating-silently, or impliedly, rejecting it
does not meet this standard”). Furthermore, the error
was not harmless because the ALJ’s rejection of the VA
disability rating, which is entitled to “great
weight” under McCartey, was not
“inconsequential to the ultimate nondisability
determination.” Molina v. Astrue, 674 F.3d
1104, 1121-1122 (9th Cir. 2012).
Defendant
argues that the ALJ considered the VA’s disability
determination, gave it proper weight, and assessed a
consistent RFC. [JS 14]. Specifically, defendant contends
that the ALJ’s RFC assessment limited plaintiff to
“non-complex routine tasks; no tasks requiring
hypervigilance; no responsibility for the safety of others;
no public interaction; and no jobs requiring significant
teamwork, ” and that these limitations are consistent
with the VA’s finding that plaintiff’s PTSD was
“somewhat limiting.” [JS 14].
Defendant’s
argument is unpersuasive. Nowhere in its decision did the VA
indicate that plaintiff’s PTSD was only “somewhat
limiting.” [See AR 439-454]. In fact, the VA
gave plaintiff’s PTSD a 70% disability rating and
concluded that his combined impairments left him unable to
work. [AR 449]. According to the VA’s rating schedule
for mental disorders, a 70% disability rating indicates
“[o]ccupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood.”[3] 38 C.F.R. §
4.130. In granting plaintiff VA disability benefits, the VA
relied on its examiner’s findings that plaintiff had a
Global Assessment of Function (“GAF”) score of
45[4]
and that plaintiff’s “PTSD with major depression
[was] severe and interefe[d] substantially with [his] ability
to secure and retain gainful employment.” [See
AR 441, 449-450]. The ALJ erred in failing to articulate
legally sufficient reasons for impliedly rejecting the VA
disability rating, Alternatively, defendant argues that the
ALJ properly discounted the VA disability determination for
the following reasons: (1) the VA’s decision was not
binding on the ALJ; (2) the VA’s decision was
inconsistent with the medical record; and (3) the VA’s
decision was based on plaintiff’s subjective
complaints. [See JS 10-21]. The first reason is an
incomplete statement of the law because while not binding on
the ALJ, a VA disability rating can be rejected only for
persuasive, specific, and valid reasons. McCartey,
298 F.3d at 1076; see also Berry v. Astrue, 622 F.3d
1228, 1236 (9th Cir. 2010) (stating that the ALJ’s
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