Clinton Hiler v. Michael Astrue

Filing

FILED OPINION (ALFRED T. GOODWIN, WILLIAM A. FLETCHER and MILAN D. SMITH, JR.) REVERSED AND REMANDED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [8280734]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



CLINTON HILER,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant-Appellee.




No. 10-36171
D.C. No.
3:09-cv-00206-TMB
OPINION

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted
June 25, 2012—Anchorage, Alaska
Filed August 9, 2012
Before: Alfred T. Goodwin, William A. Fletcher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.

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COUNSEL
Allison Elizabeth Mendel (argued), Mendel & Associates,
Anchorage, Alaska, for plaintiff-appellant Clinton Hiler.
Karen L. Loeffler and Gary Michael Guarino, Office of the
United States Attorney, Anchorage, Alaska, and David
Morado and Kathy Reif (argued), Social Security Administration, Seattle, Washington, for defendant-appellee Michael J.
Astrue, Commissioner of Social Security.

OPINION
M. SMITH, Circuit Judge:
Clinton Hiler (Hiler) appeals a district court judgment
affirming the Social Security Administration’s (SSA) decision
finding him disabled from September 26, 1997 through
December 3, 1998, but also concluding that the disability
ended on December 4, 1998, due to medical improvement.
Hiler contends that the Administrative Law Judge’s (ALJ)
medical improvement finding is not supported by substantial
evidence because she erred in relying on a single proposed
rating decision, dated December 28, 2001, from the Department of Veterans Affairs (VA) (the 2001 decision). He also
claims that the ALJ erred by failing to mention the opinion of

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treating physician, Dr. John Regan. We hold that the ALJ
erred in relying solely on the 2001 decision, and we reverse
and remand on that ground.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2004, Hiler filed a claim for disability insurance benefits, alleging lumbar spine impairment, right knee
impairment, and severe back pain, beginning October 21,
1993. After an initial rejection, an appeal, and a hearing on his
application, the ALJ handed down a partially favorable decision. Employing the five-step sequential evaluation process
under 20 C.F.R. § 404.1520, the ALJ found that Hiler was
disabled from September 26, 1997 through December 3,
1998, due to “degenerative disc disease of the lumbar spine,
right knee degenerative joint disease, and bilateral flat feet,”
and was unable to work on a regular and continuing basis during this period.
However, the ALJ also found that Hiler’s disability ended
on December 4, 1998, due to medical improvement of his
condition. On July 20, 1998, Dr. Peterson performed surgery
on Hiler to address his knee and back pain. In October 1998,
Dr. Peterson opined that Hiler’s recovery from surgery had
been successful, and he estimated that Hiler would be able to
perform sedentary work by December 1998, and light level
work by January. In December 1998, Dr. Peterson opined that
Hiler was a suitable candidate for vocational rehabilitation at
any time, and that such rehabilitation could lead to his being
able to perform sedentary jobs. Hiler underwent physical therapy, and he testified that he also performed minor household
work, took care of his three young children after his wife left
him, with help from his family, and attended school as part of
his vocational rehabilitation.
From the evidence in the record, the ALJ found that beginning December 4, 1998, Hiler had the residual functional
capability to lift or carry up to 20 pounds occasionally, to sit

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for six hours of an eight-hour day, and to stand or walk for
six hours of an eight-hour day. Based on these capabilities,
and the testimony of the vocational expert, the ALJ found that
Hiler could have performed several jobs, such as an information clerk, telephone solicitor, or telephone quotation clerk.
In so finding, the ALJ noted that her conclusion was consistent with the 2001 VA rating decision:
The undersigned notes, however, that the residual
functional capacity determination above is consistent
with a rating decision issued by the Department of
Veterans’ Affairs on December 28, 2001, that
decreased the claimant’s low back injury from 40
percent to 10 percent disabling; decreased his retropatellar [right knee] pain syndrome from 30 percent
to 10 percent disabling; and terminated his continued
entitlement to individual unemployability based on
medical improvement of his knee and back conditions (Ex. 16F/l). This is consistent with the undersigned’s finding of improvement to the residual
functional capacity found for December 4, 1998,
through September 3, 2000, the date last insured.
The findings of the undersigned are therefore consistent with the contemporaneous VA rating and [compliant] with McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002).
Hiler filed a complaint in the district court, challenging the
finding that his disability ended on December 4, 1998. The
district court denied Hiler’s motion for summary judgment,
on October 25, 2010. In its review of the ALJ’s use of the VA
rating decisions, the district court noted that “the ALJ chose
to credit the more recent VA decision over the older [1998]
determination” because the disability ratings were not permanent, and were intended to be revisited at a later date. The district court also determined that the ALJ’s crediting of the
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sion (the 1998 decision) and the April 9, 2002 VA rating decision (the 2002 decision) was permissible because the ALJ
may choose among inconsistent ratings, so long as she had
permissible reasons for crediting one rating over another. The
district court entered judgment against Hiler on October 26,
2010, and Hiler timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a district court’s order upholding the
ALJ’s decision. McCartey v. Massanari, 298 F.3d 1072, 1075
(9th Cir. 2002). The ALJ’s findings may be set aside only if
they are “based on legal error or are not supported by substantial evidence.” Id. Our review is deferential and “[i]f the
record considered as a whole can reasonably support either
affirming or reversing the Commissioner’s decision, we must
affirm.” Id.
DISCUSSION
Hiler argues that the ALJ’s conclusion regarding his
alleged medical improvement was not supported by substantial evidence, because: 1) the ALJ erred in relying only on the
proposed reductions in the 2001 decision, and ignoring the
1998 decision and the 2002 decision; and 2) the ALJ failed to
consider the opinion of Hiler’s treating physician, Dr. Regan.
I.

The VA Rating Decision

[1] The ALJ must “ordinarily give great weight to a VA
determination of disability.” Id. While a VA disability decision “does not necessarily compel the SSA 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. Id. However, because the two federal programs are not

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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.” Id. (emphasis added).
Hiler’s administrative record includes several VA decisions. First, in the 1998 decision, the VA found that Hiler was
entitled to “individual unemployability,” because he was
unable to secure or follow a gainful occupation due to his disabilities. However, permanency of the disability was not
established at that time because the VA found that there was
a reasonable chance that Hiler’s low back and right knee disabilities would improve, and that he would become employable. Second, in the 2001 decision, the VA issued a decision
that proposed to decrease Hiler’s low back injury from 40
percent disabling to 20 percent, to decrease his right knee
injury from 30 percent disabling to 10 percent, and to terminate his entitlement to individual unemployability. On January 24, 2002, the VA sent a copy of the 2001 decision to
Hiler, and stated that it proposed to make the reductions in the
decision. The letter also stated that Hiler could submit additional evidence or request a personal hearing to show why the
VA should not make the changes. Hiler made the request for
a hearing on February 4, 2002, and the VA issued another rating decision on April 9, 2002. In its 2002 decision, the VA
rejected the changes proposed in the 2001 decision, and
retained Hiler’s low back and right knee disabling percentages
(at 40 percent and 30 percent, respectively) that were part of
the 1998 decision, and also retained Hiler’s individual unemployability rating.
[2] The ALJ erred in relying only on the 2001 decision,
with its proposed rating changes, and disregarding the VA’s
1998 decision and 2002 decision. The 2001 decision only proposed changes to Hiler’s ratings, and did not officially change
them. The tentative nature of the 2001 decision is further
shown by the VA’s January 24, 2002 letter to Hiler, informing
him of the proposed reductions and termination of his
employability rating, and giving him an opportunity to submit

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more evidence or request a hearing before the decision
became final. The letter specifically stated that “reduced payments” would begin following the VA’s notice to Hiler of its
final decision.
[3] Thus, the ALJ’s finding that the 2001 decision “decreased the claimant’s low back injury from 40 percent to 10
percent disabling; decreased his retropatellar [right knee] pain
syndrome from 30 percent to 10 percent disabling; and terminated his continued entitlement to individual unemployability
based on medical improvement of his knee and back conditions” shows that she misconstrued the nature of the 2001
decision. The record clearly shows that the 2001 decision did
not make any final changes as to Hiler’s disability rating, nor
did it terminate his individual unemployability rating. In sum,
the ALJ’s statement that the 2001 decision changed Hiler’s
disability rating and terminated his individual unemployability rating is not supported by substantial evidence in the
record.
[4] We reject the contention that the 1998 decision, the
2001 decision, and the 2002 decision were “inconsistent”
decisions from which the ALJ could make a selection. The
2001 decision was not a final decision, and its proposed
changes were rejected in the 2002 decision. We also reject the
idea that the ALJ could rely on the 2001 decision simply
because it was more “contemporaneous” with the time period
for which she was evaluating Hiler’s disability. Because the
2001 decision only proposed changes, Hiler’s actual VA disability rating and his individual unemployability rating
remained unchanged from that determined by the 1998 decision, as of the time of the 2001 decision.
[5] We conclude that the ALJ erred in relying on a 2001
decision that only proposed changes, while ignoring the 1998
decision and the 2002 decision that rejected the proposed
changes recommended in the 2001 decision. The ALJ’s misunderstanding led her to inaccurately conclude that her find-

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ing that Hiler’s disability terminated on December 4, 1998
was consistent with the VA’s ratings. Accordingly, the ALJ’s
finding of medical improvement was not consistent with
Hiler’s true VA ratings, and she does not give any reasons for
the deviation. See McCartey, 298 F.3d at 1076. Therefore, we
remand the case to the ALJ for further proceedings consistent
with this opinion.
We note that, on remand, the ALJ is not compelled to adopt
the conclusions of the VA’s decisions wholesale, but if she
deviates from final VA decisions, she may do so based only
on contrary evidence that is “persuasive, specific, valid” and
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).
II. Dr. Regan’s Opinion Testimony
Because we remand the case to the ALJ for the reasons
stated, we decline to reach this alternative ground for remand.
However, because the testimony may remain an issue to be
addressed on remand, we remind the ALJ that generally a
treating physician’s opinion carries the most weight of the
various types of physician testimony. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995). Thus, to reject the opinion of
a treating physician that is not contradicted by another doctor,
the ALJ must provide “clear and convincing” reasons. Id.
However, the ALJ is “not required to discuss every piece of
evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003). “[T]he ALJ is not required to discuss
evidence that is neither significant nor probative.” Id. On
remand, the ALJ should adhere to these standards when evaluating the testimony of Dr. Regan.
CONCLUSION
For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.