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Khavarian v. Colvin

United States District Court, S.D. California

June 15, 2017

ZUBIN KHAVARIAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 12, 14]

          HON. BARBARA L. MAJOR, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Zubin Khavarian brought this action for judicial review of the Social Security Commissioner's (“Commissioner”) denial of his claim for disability insurance benefits. ECF No. 1. Before the Court are Plaintiff's Motion for Summary Judgment [ECF No. 12-1 (“Pl.'s Mot.”)], Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment [ECF Nos. 14-1 and 15-1[1] (“Def.'s Mot.”)], and Plaintiff's Reply in Support of his Motion for Summary Judgment and an Opposition to Defendant's Cross-Motion for Summary Judgment [ECF No. 18 (“Pl.'s Reply”)].

         This Report and Recommendation is submitted to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Plaintiff's Motion for Summary Judgment be GRANTED and Defendant's Cross-Motion for Summary Judgment be DENIED.

         PROCEDURAL BACKGROUND

         On April 3, 2014, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning on August 1, 2012. See Administrative Record (“AR”) at 147-50. The claim was denied initially on June 27, 2014, and upon reconsideration on October 2, 2014, resulting in Plaintiff's request for an administrative hearing. Id. at 109-13, 115-19, 120-21.

         On October 7, 2015, a hearing was held before Administrative Law Judge (“ALJ”) James S. Carletti. Id. at 44-81. Plaintiff and an impartial vocational expert (“VE”), Nelly Katsell, testified at the hearing, and an impartial medical expert, Robert J. McDevitt, M.D., testified telephonically. See id. In a written decision dated November 9, 2015, ALJ Carletti determined that Plaintiff has not been under a disability, as defined in the Social Security Act, from August 1, 2012, through the date of the ALJ's decision. Id. at 29, 38. Plaintiff requested review by the Appeals Council. Id. at 24, 262-64. In an order dated March 28, 2016, the Appeals Council denied review of the ALJ's ruling, and the ALJ's decision therefore became the final decision of the Commissioner. Id. at 1-6.

         On May 25, 2016, Plaintiff filed the instant action seeking judicial review by the federal district court. See ECF No. 1. On September 27, 2016, Plaintiff filed a motion for summary judgment alleging the following errors: (1) the ALJ failed to adequately consider the Department of Veterans Affairs (“VA”) disability ratings and (2) the ALJ's decision is not supported by substantial evidence and contains legal errors. See Pl.'s Mot. at 1-12. Plaintiff asks the Court to reverse the final decision of the Commissioner and remand the case for payment of benefits or, alternatively, remand the case to the Social Security Administration for further proceedings. Id. at 12. On October 26, 2016, Defendant filed a timely cross-motion for summary judgment asserting that the ALJ properly addressed VA disability ratings and “weighed the medical evidence and medical opinions, and his analysis was supported by substantial evidence.” Def.'s Mot. at 6-16. On November 29, 2016, Plaintiff timely filed a reply in support of his motion for summary judgment and an opposition to Defendant's cross-motion for summary judgment. Pl.'s Reply. Defendant did not file a reply. See Docket.

         DISABILITY HEARING

         On October 7, 2015, Plaintiff, who was not represented by counsel, appeared at the hearing before the ALJ. See AR at 44-81. Plaintiff was thirty-six years old at the time of the ALJ's hearing. See id. at 52. During the hearing, the ALJ noted that Plaintiff was alleging disability as of August 1, 2012, in light of the following conditions: PTSD, asthma, ADD, and a chronic left ankle tendonitis. Id. at 46. The ALJ asked Plaintiff whether he considered obtaining legal representation, and Plaintiff stated that he met with several attorneys, did not “feel comfortable” with all but one attorney, but later changed his mind after the attorney that he considered retaining informed him that either he or his partner would represent Plaintiff during the administrative hearing. Id. at 47-49. Plaintiff stated that no one would “take the time to know [his] situation as well as [he] know[s] it, ” and that he “ha[s] so much anxiety over the whole process.” Id. at 49-50.

         The ALJ then questioned Plaintiff regarding his work experience and alleged disability. Id. at 52-60. Plaintiff testified that he has a college degree, and that for the past seventeen years he had worked for the U.S. Air Force, initially as a “radar technician, ” and as a “weather officer” for the ten years prior to his alleged onset of disability. Id. at 52-53, 56. Plaintiff stated that he stopped working due to medical retirement and that the VA determined him to be “[h]undred percent [disabled] with homebound.”[2] Id. at 53-54. Plaintiff testified that his treating psychiatrist, Dr. Lane, used to work for the VA, but left for private practice, that he has been seeing Dr. Lane for at least two and a half years, and that he sees Dr. Lane every three to six weeks “depending on the situation.” Id. at 55. He stated that he was granted only “10 visits per year to see a psychiatrist, ” and thus has to use the appointments “judiciously.” Id. at 63, 65. Plaintiff also stated that he gets most of his treatments at the VA, but that it is “too daunting and too hard to get follow-up care” through the VA. Id. at 54.

         Plaintiff stated that his PTSD was caused by several factors and testified as follows:

we were transitioning from our area of operations into Afghanistan. And my boss -decided to purposefully delay our providing support[, ] kind of like to punish her superiors for not including her in the planning process. Also she wasn't coming to work and not taking leave. And so[, ] being the only other officer[, ] people were coming to me an[d] complaining. So eventually I went and talked to our boss. And long story short[, ] I faced about two years of like basically daily reprisals.

Id. at 56. Plaintiff stated that the “reprisals” from his boss were difficult because they negatively impacted his career, and because he was assigned to work full-time as a “technical expert” in the operations center, where he observed “live combat video and fires-we operated a combat airplane remotely.” Id. at 57. Plaintiff explained that he was “engaging in live combat with the enemy. Oftentimes it was fratricide, literally our troops being killed in live video by our munitions. Instances I was involved where I had to call off weapons fire on children.” Id. at 69. Plaintiff stated that he was greatly impacted by “some of the scenes that [he] took part in.” Id. at 57.

         Plaintiff testified that he was prescribed Zoloft, Prazosin, and Adderall, and that his doctors increased the doses of some of his prescription medications over a year ago. Id. at 57- 58. He stated that the medications “usually help, ” and that although he experiences some side effects from the medications, those side effects are “nothing compared to what it would be like if [he] didn't take [the medications].” Id. at 54-55.

         Plaintiff stated that he “has a hard time sleeping, ” has nightmares at least six times a week, sleeps five to six hours on a “good day, ” and only three hours of sleep on a regular day. Id. at 59, 63. He also testified that he is unable to “just trust people in general, ” has trouble completing tasks, gets overwhelmed easily, and tends to put things off for as long as he can. Id. at 59, 71. Plaintiff claimed that his tolerance level is down, that he sees one friend on a relatively regular basis, and two other acquaintances approximately twice a year. Id. at 59. He also stated that he sees his mother every four to six weeks and calls her once a week. Id. at 60.

         Plaintiff testified that he lives by himself, does laundry, buys groceries, drives three times a week, but prefers to avoid people. Id. at 60, 64. He further stated that most of the time, he stays at home, watches TV, reads, eats “pre-prepared meals, ” and very rarely cooks. Id.

         Plaintiff also stated that he had not had any psychological treatment because “[i]t's difficult to talk about. And a lot of the treatment that's been offered [has] been in a group setting. And the last thing I want to do . . . is be around other military people talking about their issues. Id. at 65. Plaintiff stated that being around civilians would be better for him, that the VA allowed him to see a civilian psychiatric provider in the past, but only because it “was running [] behind on getting appointments on the military side, ” and that he has to see military physicians for all of his “issues.” Id. Plaintiff stated that “unless I absolutely have to go, I'd rather not go. I don't want to go on base. I don't want to be sitting around uniforms. I don't want to be talking to a military doctor.” Id.

         With respect to his asthma, Plaintiff testified that “[g]enerally [it is] not too bad, ” and is “generally controlled.” Id. at 55-56. He further testified that if he gets sick, it “takes [him] a long time to recover, ” and when he is stressed or exercises, he has trouble breathing. Id. at 55.

         Dr. McDevitt, a psychological expert, appeared telephonically at Plaintiff's administrative hearing. Id. at 44-45, 61-73. Dr. McDevitt initially stated that “the last exhibit [he] ha[s] ¶ 9F, ” but later noted that “there's something here. If you'll give me a few minutes I've got this one that's confused. I thought it was 11:45 but I do have it.” Id. at 61. He then asked the ALJ whether it “would be okay if [he] reviewed it.” Id. at 62. The ALJ gave Dr. McDevitt five to ten minutes to review the records during the break. Id. After the break, Dr. McDevitt stated that he has reviewed exhibits 1 through 16F. Id.

         Dr. McDevitt testified that Plaintiff had a history of PTSD, which was treated by “appropriate” medications, but noted that the doses of the medications were “somewhat lower” than ordinarily prescribed. Id. at 66-67. He stated that Plaintiff's asthma appeared to be under control. Id. at 67. Dr. McDevitt further stated that Plaintiff was diagnosed with ADHD, although he was not sure what the bases for the diagnosis were. Id. Dr. McDevitt also testified that he was in “total agreement with Dr. Glassman that the subjective symptoms that [Plaintiff was] talking about would preclude ability to work.” Id. However, Dr. McDevitt noted that he was “troubled that [Plaintiff had] not made any effort to do anything except take medication and not do . . . any active work during the day.” Id. He also stated that although he agreed with Plaintiff's PTSD diagnosis, he did not find “any solid evidence for the B criteria” in the record, because Plaintiff “had no difficulty in caring for himself, ” had “moderate social issues, ” and did not have conflicts with anyone. Id.

         Dr. McDevitt noted that although Plaintiff “may have difficulty working during the day at times” because of difficulties with sleep, there was no “documented evidence that Plaintiff ha[d] more than moderate difficulty in concentration and persistence and pace.” Id. at 68. Dr. McDevitt acknowledged that Dr. Lane, Plaintiff's attending physician, and Dr. Glassman opined that Plaintiff might have “difficulty in completing a normal work week, ” that Plaintiff “has no usefulness in his military work, [and is] not able to be deployed, especially in worldwide deployment.” See id.; see also id. at 70. Dr. McDevitt also acknowledged that Plaintiff might be drowsy or miss work. Id. at 69. But Dr. McDevitt also stated that he did not see any evidence indicating that Plaintiff could not do simple work outside of the military, and that Plaintiff's trauma was “very unusual” because Plaintiff was “traumatized by watching videos of combat.” Id. at 70. Dr. McDevitt noted that Plaintiff had not displayed any progress during his treatment in 2011-13, which he found concerning. Id. at 68. Dr. McDevitt opined that Plaintiff “certainly meets the VA's criteria, ” but that he “can't see enough in th[e] record to meet the Social Security disability standards, ” because Plaintiff was able to do simple repetitive work in a non-public environment. Id. at 69.

         At the end of his administrative hearing, Plaintiff objected to Dr. McDevitt's telephonic appearance on the grounds that he did not have an advanced notice that the appearance would be telephonic and because Dr. McDevitt had not reviewed Plaintiff's records prior to the day of the hearing. Id. at 78. The ALJ responded that Plaintiff's objection was noted and was “on the record.” Id. He further stated that all doctors appear telephonically at administrative hearings, but acknowledged that the notice of the hearing sent to Plaintiff “did not say [that the medical expert was] going to appear telephonically.” Id. at 79-80. The ALJ further stated that if Plaintiff objected to a medical expert appearing telephonically, “then there'd be no medical expert.” Id. at 80.

         Additionally, Ms. Katsell, a VE, testified at Plaintiff's administrative hearing. Id. at 73-77. She classified Plaintiff's past relevant work as a “meteorological technician, ” Dictionary of Occupational Titles (“DOT”) 025.267-014, light, with and SVP 6, and “Avionics and radar technician, ” DOT 823.261-026, light, SVP 6. Id. at 73-74. Ms. Katsell opined that a hypothetical person of Plaintiff's age, education, and work experience, with no significant physical limitations, but with emotional or psychiatric conditions that limit such person to simple, repetitive tasks in a non-public work environment, and to minimal interaction with co-workers and supervisors, could not perform Plaintiff's past work. Id. at 74. She opined that such person would be able to perform the following jobs: “hand packager, ” DOT 020.587-018, medium, non-public, SVP 2, with 220, 000 jobs nationally; “garment sorter, ” DOT 222.687-014, light, non-public, SVP 2, with 255, 000 jobs nationally; and “document preparer, ” DOT 249.587-018, non-public, SVP 2, with 190, 000 jobs nationally. Id. at 74-75. Ms. Katsell also testified that the above jobs require the ability to work 40 hours per week, and typically allow two 15-minute and a half an hour lunch break per workday. Id. at 75. She further stated that to maintain such jobs, a person could miss maximum two days per month. Id.

         The ALJ then posed the following hypothetical question, which the VE answered as follows:

Q [w]ith the same vocational profile as the claimant and if the limitations were those that he's testified to. Difficulty with sleep, resulting fatigue because of nightmares. Irritability. Difficulty with concentration. Sense of being overwhelmed. And difficulty staying on a consistent basis. Would that person be able to sustain any of these jobs you've identified or any other positions?
A No, your honor.

Id. at 75-76. Plaintiff then asked the VE whether a person who is unable to accept instructions and respond appropriately to criticism from supervisors would be able to “meet performance standards for continued employment that would be customarily accepted in that field, ” and the VE answered that such person would not. Id. at 76-77.

         ALJ's DECISION

         On November 9, 2015, the ALJ issued a written decision in which he determined that Plaintiff was not disabled as defined in the Social Security Act. Id. at 28-38. Initially, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date of August 1, 2012. Id. at 30. He then considered all of Plaintiff's medical impairments and determined that the following impairments were “severe” as defined in the Regulations: “posttraumatic stress disorder with associated ADHD and sleep issues.” Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 31. The ALJ concluded that Plaintiff's residual functional capacity (“RFC”) permitted him to “perform a full range of work at all exertional levels but with the following nonexertional limitations: non-public simple repetitive tasks.” Id. at 32. The ALJ then found that Plaintiff could not perform his past relevant work as a “meteorological technician” and “radar technician, ” but could perform other work existing in significant numbers in the national economy, including a “hand packager” and a “garment sorter.” Id. at 36-37.

         STANDARD OF REVIEW

         Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited in that a denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Id.; see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.” Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.” Id. (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “In determining whether the [ALJ's] findings are supported by substantial evidence, [the court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ's] conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted). Where the evidence can reasonably be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. See Batson, 359 F.3d at 1193. This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.

         Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson, 359 F.3d at 1193. Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administration for further proceedings. Id.

         DISCUSSION

         I. The ALJ Did not Give Proper Weight to Plaintiff's Disability Rating as Determined by the VA

         Plaintiff argues that the ALJ erred by assigning little weight to the VA's finding that Plaintiff is 100% disabled. See Pl.'s Mot. at 1-4; Pl.'s Reply at 1-7. Plaintiff asserts that the ALJ neither cited specific evidence supporting his conclusion, nor mentioned any aspects of the VA's evaluation other than the percentage of disability awarded. Pl.'s Mot. at 3. Plaintiff further claims that the ALJ did not address the VA's finding that “[Plaintiff] is unable to secure or maintain substantially gainful employment due to PTSD” and that Plaintiff met the “housebound” classification criteria. Id. Finally, Plaintiff maintains that Defendant cannot advance a post-hoc rationale in arguing that the ALJ departed from the VA's findings because the ALJ considered evidence that was not available to the VA. Pl.'s Reply at 5-6.

         Defendant maintains that the ALJ provided persuasive, specific and valid reasons for discounting the VA's disability ratings. Def.'s Mot. at 6-8. In support, Defendant asserts that the ALJ stated that the objective evidence did not support a finding of disabled under the SSA criteria and that Plaintiff's mental restrictions did not prevent him from performing work in light of his RFC. Id. at 7. Defendant also contends that the ALJ properly considered evidence that “came into existence after the VA issued its report, ” including Dr. Lane's treatment notes and Mental Residual Functional Capacity Assessment form, and Dr. McDevitt's testimony.[3] Id.

         1. Plaintiff's VA Records

         Effective May 6, 2014, the VA determined that Plaintiff was 100% disabled. AR at 442- 49. Specifically, the VA found that Plaintiff had a disability rating of 100% for PTSD with ADD, 30% for asthma, 20% for lumbar myofascial strain, 10% each for left and right posterior tibial tendonitis, and 10% each for left and right patellofemoral syndrome. Id. at 442-43. The VA further determined that Plaintiff met the criteria for the “housebound” status. Id. at 443, 445. The VA noted that the 100% rating for PTSD, which was increased from 30% assessed earlier, was based on Plaintiff's difficulty in adapting to work and to stressful circumstances; near-continuous depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to a work-like setting; occupational and social impairment, with difficulties in most areas, such as work, school, family relationships, judgment, thinking, or mood; disturbances of motivation and mood; inability/difficulty in establishing and maintaining effective work and social relationships; panic attacks more than once a week; forgetting directions, recent events, and names; depressed mood; mild memory loss; chronic sleep impartment; anxiety; and suspiciousness. Id. at 444. The VA also found that Plaintiff was “unable to secure or maintain substantially gainful employment due to PTSD, ” and noted that “[t]his is the highest schedular evaluation allowed under the law for this condition.” Id. Additionally, the VA stated that the finding of 30% disability rating for asthma was based on Plaintiff's daily oral bronchodilator therapy and inhalational anti-inflammatory medication. Id.

         2. Relevant Law

         “[A]lthough a VA rating of disability does not necessarily compel the SSA to reach an identical result, 20 C.F.R. § 404.1504, the ALJ must consider the VA's finding in reaching his decision.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). When considering a VA determination of disability, the ALJ must give great weight to the decision because “of the marked similarity between these two federal disability programs.” Id. Specifically,

[b]oth programs evaluate a claimant's ability to perform full-time work in the national economy on a sustained and continuing basis; both focus on analyzing a claimant's functional limitations; and both require claimants to present extensive medical documentation in support of their claims. . . . Both programs have a detailed regulatory scheme that promotes consistency in adjudication of claims. Both are administered by the federal government, and they share a common incentive to weed out meritless claims.

Id. However, because the VA and SSA criteria for determining disability 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 ...


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