Courtney v. Colvin

          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 ...