Curbow v. Colvin

Filing 27

ORDER reversing the decision of the Commissioner of Social Security and remanding the case to the Commissioner for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The ALJ shall issue a new decision that is con sistent with the applicable law as set forth in this Order. The ALJ, however, is not precluded from reopening the hearing to receive additional evidence if deemed appropriate. The Clerk of Court is directed to enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 2/1/2016. (KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

DeWayne Curbow,

10
11

No. CV-14-8222-PCT-ESW
Plaintiff,

ORDER

v.

12
13

Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration,

14
Defendant.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Pending before the Court is Plaintiff DeWayne Curbow’s (“Plaintiff”) appeal of
the Social Security Administration’s (“Social Security”) denial of his claim for disability
benefits. Plaintiff filed an application for disability insurance benefits under Title II of
the Social Security Act. Plaintiff alleges disability beginning on January 22, 2010.
This Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. §
405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the case for
a rehearing.

Both parties have consented to the exercise of U.S. Magistrate Judge

jurisdiction. (Doc. 15). After reviewing the Administrative Record (“A.R.”), Plaintiff’s
Opening Brief (Doc. 20), Defendant’s Response Brief (Doc. 24), and Plaintiff’s Reply
(Doc. 25), the Court finds that the Administrative Law Judge’s (“ALJ”) decision contains

1
2
3

harmful legal error. For the reasons explained in Section II below, the decision is
reversed and the case is remanded to the Commissioner of Social Security for further
administrative proceedings.

4
5

I. LEGAL STANDARDS

6

A. Disability Analysis: Five-Step Evaluation

7

The Social Security Act (the “Act”) provides for disability insurance benefits to

8

those who have contributed to the Social Security program and who suffer from a

9

physical or mental disability. 42 U.S.C. § 423(a)(1).

To be eligible for benefits based

10

on an alleged disability, the claimant must show that he or she suffers from a medically

11

determinable physical or mental impairment that prohibits him or her from engaging in

12

any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). The claimant must also show

13

that the impairment is expected to cause death or last for a continuous period of at least

14

twelve months. Id.

15

To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an

16

analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.

17

§ 404.1520(a). The claimant has the burden of proof regarding the first four steps: 1
Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to step two.

18
19
20

Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe
impairment or combination of impairments, disability benefits
are denied at this step. Otherwise, the ALJ proceeds to step
three.

21
22
23
24
25
26
27
28

1

Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
-2-

1

Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity? 20
C.F.R. § 404.1520(d). If the impairment meets or equals one
of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is
presumed to be disabling, the ALJ proceeds to the fourth step
of the analysis.

2
3
4
5
6
7

Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §
404.1520(f). Otherwise, the ALJ proceeds to the last step.

8
9
10
11
12
13

If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 2
Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. § 404.1520(g). Social Security is responsible for
providing evidence that demonstrates that other work exists in
significant numbers in the national economy that the claimant
can do, given the claimant’s residual functional capacity, age,
education, and work experience. Id.

14
15
16
17
18
19
20

B. Standard of Review Applicable to ALJ’s Determination

21

The Court must affirm an ALJ’s decision if it is supported by substantial evidence

22

and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

23

2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial

24

evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v.

25

Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197,

26

229 (1938)). It means such relevant evidence as a reasonable mind might accept as

27

adequate to support a conclusion. Id.

28

2

Parra, 481 F.3d at 746.
-3-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 599 (9th Cir. 1999)
(“Where the evidence is susceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th
Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving conflicts
and ambiguities in the evidence and determining credibility. Id.; see also Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ’s
decision.

This doctrine provides that an ALJ’s decision need not be remanded or

reversed if it is clear from the record that the error is “inconsequential to the ultimate
nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there
remains substantial evidence supporting the ALJ’s decision and the error “does not
negate the validity of the ALJ’s ultimate conclusion”) (citations omitted).

19
20

II. PLAINTIFF’S APPEAL

21

A. Procedural Background

22

Plaintiff, who was born in 1963, has worked as a truck driver and grocery store

23

stocker. (A.R. 61, 70). In early 2011, Plaintiff filed a Title II application for disability

24

insurance benefits. (A.R. 135-36). Plaintiff’s application alleged that on April 27, 2009, 3

25

Plaintiff became unable to work due to the following impairments: (i) depression; (ii) five

26

bad discs in his lower back; and (iii) three bad discs in his neck. (A.R. 70). Social

27
28

3

Plaintiff later amended his alleged disability onset date to January 22, 2010.
(A.R. 37, 236).
-4-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Security denied Plaintiff’s application in August 2011. (A.R. 98-101). In January 2012,
upon Plaintiff’s request for reconsideration, Social Security affirmed the denial of
Plaintiff’s application. (A.R. 105-07). Plaintiff then requested a hearing before an ALJ.
(A.R. 108-09). The ALJ held a video hearing in March 2013. (A.R. 34-68). In her May
2013 decision, the ALJ found that Plaintiff is not disabled. (A.R. 14-21). The Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Social Security Commissioner. (A.R. 1-6). On November 19, 2014,
Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g) requesting judicial
review and reversal of the ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
The ALJ completed all five steps of the disability analysis before finding that
Plaintiff is not disabled and entitled to disability benefits.
1.

Step One: Engagement in “Substantial Gainful Activity”

The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since January 22, 2010. (A.R. 16). Neither party disputes this determination.

17

Step
Two:
Presence
of
Medically
Impairment/Combination of Impairments

18

The ALJ found that Plaintiff has one severe impairment—cervical multi-level

19

spondylosis with neural impingement. (A.R. 16). Plaintiff argues that the ALJ erred by

20

not including Plaintiff’s alleged lumbar orthopedic issues and depression in the list of

21

severe impairments. (Doc. 20 at 5-7).

22

2.

3.

Severe

Step Three: Presence of Listed Impairment(s)

23

The ALJ determined that Plaintiff does not have an impairment or combination of

24

impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404,

25

Subpart P, Appendix 1 of the Social Security regulations. (A.R. 18). Plaintiff disputes

26

the ALJ’s determination at this step. (Doc. 20 at 7-8).

27
28

-5-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

4.

The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”)
to perform light exertional work as defined in 20 C.F.R. §§ 404.1567(b), except that:
[Plaintiff] is limited to performing occupations that require no
more than occasional postural maneuvers such as balancing,
stooping, kneeling, crouching, crawling and climbing on
ramps and stairs. [Plaintiff] must avoid all occupations that
require climbing on ladders/ropes/scaffolds.
(A.R. 18). After considering the testimony of a vocational expert (“VE”) and Plaintiff’s
RFC, the ALJ determined that Plaintiff is unable to perform his past relevant work as a
truck driver and stocker. (A.R. 19-20).
Plaintiff argues that the ALJ erred at step four by improperly weighing the
Plaintiff’s Veteran’s Administration (“VA”) medical records and Plaintiff’s 70% VA
disability rating. (Doc. 20 at 8-9). The Court finds that the ALJ committed harmful legal
error by failing to sufficiently explain the consideration and weight given to Plaintiff”s
VA disability rating.
5.

16
17
18
19
20
21

Step Four: Capacity to Perform Past Relevant Work

Step Five: Capacity to Perform Other Work

At the final step, the ALJ found that Plaintiff is able to perform other jobs existing
in significant numbers in the national economy.

(A.R. 21-22).

Because the ALJ

committed harmful legal error at step four, the ALJ’s determination at step five is also
erroneous.
C.

The ALJ Committed Reversible Legal Error by Failing to Properly
Weigh Plaintiff’s VA Disability Rating

22

“No circuit has held that an ALJ is free to disregard a VA disability rating.”

23

McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). In McCartey, the Ninth

24

Circuit Court of Appeals held that an ALJ must ordinarily give great weight to a VA

25

determination of disability. Id. at 1076. An ALJ may discount a VA disability rating

26

only if he or she provides persuasive, specific, and valid reasons that are supported by the

27

record. Id.

28

-6-

1
2
3
4
5

Here, the VA assigned Plaintiff a 50% disability rating for major depressive
disorder and a 40% disability rating for intervertebral disc syndrome. (A.R. 17, 878).
Under the VA regulations, this equates to a combined disability rating of 70%. 38 C.F.R.
§ 4.25 The ALJ’s decision addresses Plaintiff’s VA disability rating in a single
paragraph:

6

The undersigned notes that the claimant also has been treated
for a major depressive disorder (MDD) during the
adjudicatory period. In fact, as of November 2012, 50% of
his 70% service-connected disability was for MDD and 40%
was for intervertebral disc syndrome (exhibit 17F/27). Yet,
during much of the adjudicatory period, the claimant was
must less depressed when his physical condition improved.
For example, in September 2010, he was walking daily and
taking care of his friend’s two children after school (exhibit
5F/122). Moreover, in July 2010, the claimant underwent a
consultative psychiatric evaluation at the request of the State
agency. The examiner, Doris Javine, Ph.D., a clinical
psychologist, diagnosed the claimant with depression related
to his medical condition. Dr. Javine noted that the claimant
had received good results with treatment, including
counseling and medications. In her medical source statement,
the doctor determined that the claimant has had no significant
mental limitation, which has lasted or is expected to last for
12 continuous months or longer (exhibit 8F).

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

(A.R. 17).
Defendant contends that under Valentine v. Comm’r of Soc. Sec., 574 F.3d 685
(9th Cir. 2009), the ALJ was justified in giving little weight 4 to Plaintiff’s VA disability
rating by referencing evidence not considered by the VA—Dr. Javine’s psychological
evaluation. (Doc. 24 at 11-12). In Valentine, the claimant’s VA disability rating was
increased from 70% to 100% while the claimant’s case was pending before the ALJ. Id.
at 688-89. The ALJ’s decision discussed the 100% disability rating, but noted that it
“was not based on a comprehensive evaluation of the evidence available to the

27
28

4

As discussed below, the ALJ did not explicitly state that she assigned little
weight to Plaintiff’s disability rating.
-7-

1
2
3
4
5
6
7

undersigned [ALJ].” Id. at 695. The Ninth Circuit found that the “ALJ was justified in
rejecting the VA’s disability rating on the basis that she had evidence the VA did not,
which undermined the evidence the VA did have.”

Id.

The Ninth Circuit further

concluded that “on this record, the acquisition of new evidence or a properly justified
reevaluation of old evidence constitutes a ‘persuasive, specific, and valid reason[ ] . . .
supported by the record’ under McCartey for according little weight to a VA disability
rating.” Id. (emphasis added). Three points distinguish this case from Valentine.

8
First, while a reviewing court may draw specific and legitimate inferences from an

9
10
11
12
13
14
15
16
17
18

ALJ’s decision, a court cannot speculate on the ALJ’s reasoning or make “post hoc
rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray
v. Comm’r of Soc. Sec., 554 F.3d 1219, 1225 (9th Cir. 2009); Magallanes, 881 F.2d at
755.

In Valentine, it was clear from the ALJ’s decision that the ALJ rejected the

claimant’s 100% VA disability rating by finding that the claimant was able to work. In
this case, it is not clear that the ALJ discounted Plaintiff’s disability rating. Not only
does the ALJ’s decision not discuss the weight assigned to Plaintiff’s disability rating, but
it does not acknowledge that a VA disability rating is ordinarily entitled to great weight.
In addition, the ALJ’s decision does not provide sufficient analysis in which the Court

19

may infer the weight assigned to the rating. 5 The Court cannot speculate what the ALJ

20

may have been thinking with respect to Plaintiff’s disability rating.

21

Second, the ALJ in Valentine explicitly stated that Plaintiff’s VA disability rating

22

was not based on evidence available to the ALJ. The ALJ in this case made no such

23

explicit statement. Defendant’s argument that the ALJ rejected the disability rating based

24

on new evidence invites the Court to engage in impermissible speculation as to the ALJ’s

25
26
27
28

5

It is possible that the ALJ simply found that Plaintiff’s 70% VA disability rating
was consistent with Plaintiff”s assessed RFC. See Lewis v. Astrue, No. CV 08-5669
MHP, 2009 WL 4981142, at *6-7 (N.D. Cal. Dec. 15, 2009) (claimant argued on appeal
that the ALJ failed to give proper weight to the claimant’s 70% VA disability rating;
Social Security contended that the rating was accepted and reflected in the ALJ’s RFC
assessment).
-8-

1
2
3
4
5
6
7

reasoning. Bray, 554 F.3d at 1225; see also see also Stout v. Comm’r of Soc. Sec., 454
F.3d 1050, 1054 (9th Cir. 2006) (“[W]e cannot affirm the decision of an agency on a
ground that the agency did not invoke in making its decision.”) (citations omitted).
“Although the ALJ’s analysis need not be extensive, the ALJ must provide some
reasoning in order for [the court] to meaningfully determine whether the ALJ’s
conclusions were supported by substantial evidence.” Brown-Hunter v. Colvin, 806 F.3d
487, 495 (9th Cir. 2015) (quoting Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1103

8
9
10
11
12
13
14
15
16
17
18

(9th Cir. 2014). Without additional analysis, the Court cannot meaningfully review the
ALJ’s consideration of Plaintiff’s disability rating.
Finally, Plaintiff’s VA disability rating is based on both depression and
intervertebral disc syndrome. Dr. Javine only evaluated Plaintiff’s mental state. The ALJ
does not discuss any evidence regarding Plaintiff’s intervertebral disc syndrome that the
VA did not review. Nor does the ALJ set forth a “properly justified reevaluation of old
evidence.” 6 Valentine, 574 F.3d at 695. The Court cannot speculate as to the extent of
the ALJ’s consideration of Plaintiff’s 40% VA disability rating for intervertebral disc
syndrome.
For the above reasons, the Court finds that the ALJ failed to properly evaluate

19

Plaintiff’s VA disability rating.

The Court does not find that this error is

20

“inconsequential to the ultimate nondisability determination.” Tommasetti, 533 F.3d at

21
22
23
24
25
26
27
28

6

The ALJ’s statement that “in September 2010, [Plaintiff] was walking daily and
taking care of his friend’s two children after school” does not constitute a properly
justified reevaluation of old evidence. Plaintiff testified that he was walking daily
pursuant to his doctor’s recommendation and that his legs are almost totally numb by the
end of the walks. (A.R. 54-55). Plaintiff also testified that he only took care of his
friend’s children for six or seven months. (A.R. 44). It is unclear from the record exactly
how much activity was involved in taking care of the children, who were ages 9 and 11.
(Id.). The ALJ has not adequately explained how Plaintiff’s daily walks and babysitting
translate to the ability to sustain competitive employment on a full-time basis. Garrison
v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (stating that the Ninth Circuit has
“repeatedly warned that ALJs must be especially cautious in concluding that daily
activities are inconsistent with testimony about pain, because impairments that would
unquestionably preclude work and all the pressures of a workplace environment will
often be consistent with doing more than merely resting in bed all day”).
-9-

1
2
3
4
5
6
7
8

1038. Because the error alone warrants remand, the Court declines to address Plaintiff’s
remaining arguments.
D. Remand for Further Proceedings is Appropriate
The Court has discretion to remand a case for further proceedings or for an award
of benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). A court may remand
for an award of benefits if the record has been fully developed and further proceedings
would serve no useful purpose. Id.; McCartey, 298 F.3d at 1076. The Ninth Circuit has

13

explained that:
Such a circumstance arises when: (1) the ALJ has failed to
provide legally sufficient reasons for rejecting the claimant's
evidence; (2) there are no outstanding issues that must be
resolved before a determination of disability can be made;
and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled if he considered the
claimant’s evidence.

14

McCartey, 298 F.3d at 1076.

9
10
11
12

15

In McCartey, the Ninth Circuit found that the ALJ erroneously disregarded the

16

claimant’s 80% VA disability rating. Id. Finding that the claimant’s disability rating was

17

supported by several hundred pages of medical records, the Ninth Circuit ruled that the

18

case should be remanded to Social Security for payment of benefits. Id. at 1077. Here,

19

while Plaintiff’s 70% disability rating is supported by numerous medical records, it is

20

unclear whether the rating necessarily means that Plaintiff is disabled within the meaning

21

of the Social Security Act. See Herron v. Astrue, 407 F. App’x 139, 141 (9th Cir. 2010)

22

(finding that ALJ failed to give valid reasons for discounting a claimant’s 70% VA

23

disability rating and remanding to the district court with instructions to further remand to

24

Social Security for further proceedings rather than an award of benefits).

25

Plaintiff’s VA records show that Plaintiff suffers from chronic pain, “disability requires

26

more than mere inability to work without pain.” Brown v. Bowen, 801 F.2d 361, 362–63

27

(10th Cir. 1986) (citation and internal quotation marks omitted).

28

notes that the VA denied Plaintiff’s request for a 100% unemployable rating. (A.R. 483).

- 10 -

While

Moreover, the Court

1
2
3
4
5

This suggests that Plaintiff may be able to perform substantial gainful activity as defined
by Social Security. It is the ALJ’s role to resolve conflicts in the medical testimony and
any ambiguities in the record. See Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). Accordingly, the court finds it appropriate to remand this action for further
proceedings.

6
7

III. CONCLUSION

8

Based on the foregoing, the Court finds that the decision of the Commissioner of

9

Social Security is not supported by substantial evidence in the record as a whole and is

10

not based on proper legal standards. Accordingly,

11

IT IS ORDERED reversing the decision of the Commissioner of Social Security

12

and remanding the case to the Commissioner for further administrative proceedings

13

pursuant to sentence four of 42 U.S.C. § 405(g). The ALJ shall issue a new decision that

14

is consistent with the applicable law as set forth in this Order. The ALJ, however, is not

15

precluded from reopening the hearing to receive additional evidence if deemed

16

appropriate. The Clerk of Court is directed to enter judgment accordingly.

17
18

Dated this 1st day of February, 2016.

19
20
21
22
23
24
25
26
27
28

- 11 -