United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 12,
BARBARA L. MAJOR, UNITED STATES MAGISTRATE JUDGE
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
(“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”)].
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.
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.
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.
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
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.
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.” 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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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
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.
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).
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.
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
The ALJ Did not Give Proper Weight to Plaintiff's
Disability Rating as Determined by the VA
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.
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. Id.
Plaintiff's VA Records
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.
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.”
[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 ...