Zawatski v. Astrue

Filing 29

ORDER: IT IS ORDERED that the Commissioners final decision in this matter is REMANDED for further proceedings consistent with this Order. The Clerk of Court is DIRECTED to amend the docket to reflect that Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, has been substituted as the named Defendant in this action, and enter judgment and close this case. Signed by Magistrate Judge Charles R Pyle on 9/26/13.(BAC)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 ) ) ) Plaintiff, ) ) vs. ) ) Carolyn W. Colvin, Acting Commissioner) of the Social Security Administration, ) ) ) Defendant. ) ) Carl C. Zawatski, 10 11 12 13 14 15 No. CV 11-736-TUC-CRP ORDER 16 17 Plaintiff has filed the instant action seeking review of the final decision of the 18 Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The Magistrate Judge has 19 jurisdiction over this matter pursuant to the parties’ consent. See 28 U.S.C. § 636(c). The 20 Court takes judicial notice that Michael J. Astrue is no longer Commissioner of the Social 21 Security Administration (hereinafter “SSA”). Pursuant to Rule 25(d) of the Federal Rules 22 of Civil Procedure, the Court substitutes the new Acting Commissioner of the SSA, Carolyn 23 W. Colvin, as the named Defendant in this action. 24 Pending before the Court are Plaintiff’s Opening Brief (Doc. 25) (“Plaintiff’s Brief”) 25 and Defendant’s Opposition to Plaintiff’s Opening Brief (Doc. 26) (“Defendant’s Brief”). 26 For the following reasons, the Court will remand this action for further administrative 27 proceedings. 28 1 BACKGROUND 2 In July 2007, Plaintiff protectively filed an application for disability and disability 3 insurance benefits under the Social Security Act. (Administrative Record (“AR”) 95-99; 4 Plaintiff’s Brief, p. 2). Plaintiff, a U.S. Navy veteran who last worked as a bartender, alleges 5 he has been unable to work since June 1, 2000 due to depression, anxiety, chronic bronchitis, 6 post-traumatic stress disorder (“PTSD”), and lung surgery. (AR 119-20; see also AR 448 7 (Plaintiff served in the Navy from 1974 to 1977)). Plaintiff’s application was denied initially 8 and on reconsideration, after which Plaintiff requested and appeared for a hearing before an 9 administrative law judge (“ALJ”). (AR 58-61, 43-55). On April 27, 2009, the ALJ found 10 that although Plaintiff satisfied the listed disability impairments for affective disorders and 11 substance addiction disorders, Plaintiff was not entitled to benefits because alcoholism was 12 a contributing factor material to the disability determination. (AR 29-42) The Appeals 13 Council denied Plaintiff’s request for review (AR 1-7), rendering the ALJ’s April 27, 2009 14 decision the final decision of the Commissioner. 15 Plaintiff then initiated the instant action, raising two grounds for relief: (1) the ALJ 16 erred by failing to consider evidence after the date last insured and by failing to give 17 controlling weight to treating providers’ opinions before and after that date; and (2) the ALJ 18 erred by failing to give great weight to the Department of Veterans Affairs finding of 100% 19 disability for Plaintiff’s PTSD and major depressive disorder. 20 STANDARD 21 The Court has the “power to enter, upon the pleadings and the transcript of record, a 22 judgment affirming, modifying, or reversing the decision of the Commissioner of Social 23 Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g). The 24 factual findings of the Commissioner shall be conclusive so long as they are based upon 25 substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti 26 v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the 27 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based 28 -2- 1 on legal error or are not supported by substantial evidence in the record as a whole.” Tackett 2 v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). 3 Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a 4 preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 5 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is 6 “such relevant evidence as a reasonable mind might accept as adequate to support a 7 conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can 8 support either outcome, the court may not substitute its judgment for that of the ALJ.” 9 Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). 10 Moreover, the Commissioner, not the court is, is charged with the duty to weigh the 11 evidence, resolve material conflicts in the evidence and determine the case accordingly. 12 Matney, 981 F.2d at 1019. However, the Commissioner's decision “‘cannot be affirmed 13 simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 14 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the Court must 15 “‘consider the record as a whole, weighing both evidence that supports and evidence that 16 detracts from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 17 956 (9th Cir. 1993)). 18 DISCUSSION 19 SSA regulations require the ALJ to evaluate disability claims pursuant to a five-step 20 sequential process. 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant 21 must show he has not worked since the alleged disability onset date, he has a severe 22 impairment, and his impairment meets or equals a listed impairment or his residual functional 23 capacity (“RFC”)1 precludes him from performing past work. Where the claimant meets his 24 burden, the Commissioner must show that the claimant is able to perform other work, which 25 26 27 28 1 RFC is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. §§ 404.1545, 416.945. -3- 1 requires consideration of the claimant’s RFC to perform other substantial gainful work in the 2 national economy in view of claimant’s age, education, and work experience. 3 A claimant cannot be found disabled if alcoholism is a contributing factor material to 4 the Commissioner’s determination of disability. 42 U.S.C. §§ 404.1535(b), 416.935(b); see 5 also Parra, 481 F.3d at 746-47. In making this determination, the ALJ is required to first 6 conduct the five-step inquiry without separating the impact of alcoholism. Bustamante v. 7 Massanari, 262 F.3d 949, 955 (9th Cir. 2001). Next, the ALJ must determine which of the 8 claimant’s disabling limitations would remain if the claimant stopped using alcohol. Parra, 9 481 F.3d at 747. “If the remaining limitations would not be disabling, then the claimant’s 10 substance abuse is material and benefits must be denied.” Id. The claimant bears the burden 11 of proving that alcoholism is not a contributing factor material to his disability. Id. at 748. 12 Here, the ALJ found that “[b]ecause the claimant would not be disabled if he stopped 13 the substance use...the claimant’s substance use disorder is a contributing factor material to 14 the determination of disability.” (AR 41). Although the ALJ found that Plaintiff was unable 15 to return to past work, the ALJ determined that if Plaintiff stopped substance use, he could 16 perform a full range of unskilled work. (Id. (citing the medical-vocational guidelines)). 17 The ALJ determined that Plaintiff met the insured status requirements of the Social 18 Security Act through September 30, 2004. (AR 31). Plaintiff contends that although 19 approximately 200 pages in the record are dated after September 2004, the ALJ’s opinion is 20 limited to discussion of records predating September 30, 2004. Plaintiff argues that the ALJ 21 erroneously failed to consider records dated after September 30, 2004 including opinions of 22 Plaintiff’s treating psychiatrist Eric Whyte, M.D., and treating psychologist Lawrence 23 Haburchak, Psy.D. (Plaintiff’s Brief, pp. 2-9 (citing AR 625-627)). Defendant counters that 24 the ALJ correctly discussed the evidence that was directly pertinent to the time period under 25 consideration and that the ALJ properly rejected opinions rendered after September 30, 2004. 26 In 2009, Dr. Whyte wrote that he had treated Plaintiff since September 2004 and that 27 Plaintiff “carries diagnoses of Major Depressive Disorder, Recurrent (for which he has been 28 -4- 1 rated 100% by the Veterans Administration,...” PTSD, and Alcohol Dependence. (AR 625). 2 Dr. Whyte also opined: 3 5 It is clear to me that his disabling depressive disorder is independent of his alcohol dependence, as we have seen him suffer from severe depression even during these prolonged periods of sobriety. Indeed, a review of his history suggests that his alcohol abuse has been a symptom of his depression, rather than a cause of it. 6 (Id.). Dr. Whyte further stated that his review of Plaintiff’s treatment records prior to 2004 7 showed that Plaintiff “suffered from disabling depression long before...” he began treatment 8 with Dr. Whyte. (Id.). The ALJ gave Dr. Whyte’s opinion “minimal weight” because Dr. 9 Whyte had treated Plaintiff for “only...” one month “during the relevant time period. The 10 rest of claimant’s treatment and, thus, the basis for Dr. Whyte’s opinion is from a time period 11 not relevant to this case.” (AR 39). 4 12 Additionally, in September 2008, Dr. Haburchak wrote that he had been treating 13 Plaintiff since December 2003 and that Plaintiff “endures chronic symptoms of both Major 14 Depression and PTSD,” which Dr. Haburchak opined “explain the prior instability in his 15 lifestyle, and his previous struggle with alcohol dependency.” (AR 626). Dr. Haburchak also 16 stated that “in spite of enduring prolonged episodes of emotional distress, Mr. Zawatski has 17 demonstrated more sobriety during the past four years, than do most psychiatric patients with 18 even less severe symptoms.” (Id.). Although Defendant asserts that the ALJ “noted Dr. 19 Haburchak’s letter” (Defendant’s Brief, p.9 (citing AR 40)), the ALJ’s opinion reflects that 20 the he mentioned Dr. Haburchak was Plaintiff’s treating psychologist, however, the ALJ did 21 not refer to Dr. Haburchak’s 2009 letter. (AR 38). 22 It is well-settled that the opinions of treating physicians are entitled to greater weight 23 than the opinions of examining or non-examining physicians. Andrews v. Shalala, 53 F.3d 24 1035, 1040-1041 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 25 ("We afford greater weight to a treating physician's opinion because he is employed to cure 26 and has a greater opportunity to know and observe the patient as an individual."); see also 27 20 C.F.R §§ 404.1527, 416.927 (generally, more weight is given to treating sources). An 28 ALJ may reject a treating doctor’s uncontradicted opinion only after giving “‘clear and -5- 1 convincing reasons’ supported by substantial evidence in the record.” Reddick v. Chater, 157 2 F.3d 715, 725 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 3 Additionally, "[a] treating physician's opinion on disability even if controverted can be 4 rejected only with specific and legitimate reasons supported by substantial evidence in the 5 record." Id. See also Holohan v. Massanari, 246 F.3d 1195, 1202-1203 (9th Cir. 2001). 6 Here, the ALJ gave Dr. Whyte’s opinion “minimal weight” because Dr. Whyte had 7 treated Plaintiff for “only...” one month “during the relevant time period. The rest of 8 claimant’s treatment and, thus, the basis for Dr. Whyte’s opinion is from a time period not 9 relevant to this case.” (AR 39). The ALJ’s statement overlooks Dr. Whyte’s specific opinion 10 that Plaintiff’s depressive disorder is independent of his alcohol dependence, Plaintiff’s 11 “alcohol abuse has been a symptom of his depression, rather than a cause of it”, and that his 12 review of his review of Plaintiff’s medical records prior to September 2004 suggests that 13 Plaintiff suffered from disabling depression “long before...” September 2004. (AR 625). 14 When discussing medical opinions rendered after the period for disability, the Ninth Circuit 15 has held that “medical reports are inevitably rendered retrospectively and should not be 16 disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988); see 17 also Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996) (“medical evaluations made after 18 the expiration of a claimant’s insured status are relevant to an evaluation of pre-expiration 19 condition.”); Lester, 81 F.3d at 832 (same). On the instant record, the ALJ’s rejection of Dr. 20 Whyte’s opinion based solely on the fact that it was rendered retrospectively does not 21 constitute a legally sufficient reason for rejecting Dr. Whyte’s opinion. See id. 22 Defendant’s argument that Dr. Whyte’s opinion was not supported by the record does 23 not alter this conclusion. First, the ALJ did not state such a reason. Additionally, “[t]he ALJ 24 must set out in the record his reasoning and the evidentiary support for his interpretation of 25 the medical evidence.” Tackett, 180 F.3d at 1103 (citing Lester, 81 F.3d. at 834). In 26 assessing Plaintiff’s case, the ALJ primarily focused on the “limited treatment records for the 27 relevant time period[]” which reflected diagnoses of depression and alcohol dependence. 28 (AR 38; see also AR 37). In particular, the ALJ cited Plaintiff’s August 2001 progress note -6- 1 when he reported being sober for six months. (AR 38, 197). The ALJ correctly noted that 2 Plaintiff’s mental status examination reflected “he was alert cooperative, he had direct eye 3 contact, no cognitive inefficiency was found, his thinking was logical, he was coherent, and 4 he had normal effect.” (AR 38). The ALJ omitted Plaintiff’s report at that same session of 5 feeling “‘unfocused if I’m not busy, anxiety comes out of nowhere and I feel overwhelmed. 6 It hurts inside. Sometimes my head feels like it’s going to explode [sic] feel like crying feel 7 worthless, like life has no meaning and I’m going nowhere.’ These episodes currently occur 8 frequently lasting hours to an entire day, but interspersed with feeling of more substantial 9 well being. ” (AR 197). Although Plaintiff reported that symptoms of major depression had 10 been “significantly ameliorated...” on his current medication of Bupropion and Sertraline, 11 they were not “eliminated.” (Id.). His diagnoses included Depression NOS and alcohol 12 dependence, in sustained early remission, and his GAF was 60. (Id.). 13 The ALJ also cited to October 2001 records that Plaintiff continued on medication 14 with good response, including Wellbutrin which he credited with helping him to complete 15 tasks he set out to do. (AR 38 (citing AR 192-193)). For example, he has been able to work 16 “a day or so a week with a friend of his and believes that if he were not on medications for 17 his depression, this would not be possible.” (AR 192). The ALJ omitted Plaintiff’s report 18 in March 2002 that “he has been unable to hold a job without lapses with his depression 19 causing compromise in functioning and inability to sustain employment.” (AR 191). 20 In June 2002, Plaintiff reported he had been taking medication for depression and that 21 he had no suicidal/homicidal thoughts and no recurrent depressive symptoms. (AR 187). 22 By February 2003, Plaintiff reported he had not been drinking and he found his medication 23 for depression relieved his symptoms. (AR 185). In May 2003, after a relapse to alcohol the 24 previous month, he reported “high psychosocial stressors in his life” and that Zoloft relieved 25 depressive symptoms of lack of motivation, insomnia, fatigue, and lack of appetite. (AR 26 184). 27 Although Plaintiff reported good response to antidepressants in June 2003, he also stated that 28 he was unable to sustain steady employment in home remodeling because “he cannot take -7- 1 on large jobs that demand much organization and much time commitment. Advised him to 2 try to take only jobs that can be completed in 24 hours or so.” (Id.). 3 From September 7-14, 2004, Plaintiff was admitted into the VA Psychiatric 4 Department for inpatient treatment for seven days. (See AR 510, 521; see also (AR 38 (ALJ 5 stating Plaintiff “was off his medications for several months and depressed, and he had an 6 alcohol relapse. 7 thoughts.”)). The ALJ cites to a September 13, 2004 treatment note indicating that during 8 inpatient treatment, Plaintiff “exhibited optimism and increased hopefulness....” (AR 37 9 (citing AR 525-26)). The September 13, 2004 record cited by the ALJ also reflects that 10 Plaintiff “continued to trail off his sentences and occasionally stare at the ground during our 11 conversation. He continued to show difficulty verbalizing his thoughts....” (AR 525). 12 Plaintiff also described fluctuations in mood from one day to the next. (AR 526). 13 September 20, 2004, after Plaintiff had been discharged from inpatient treatment, Dr. 14 Haburchak noted that “[a]lthough no longer in crises, some depression continues as well as 15 worry about his future.” (AR 509-10). He was hospitalized at the September 2004 with suicidal On 16 Although the ALJ noted that Plaintiff “apparently had not been tried on other 17 medications besides Zoloft and Bupropion,” (AR 38), the record reflects that in July 2006, 18 Dr. Whyte began to taper Sertraline to replace with Venlafaxine and continued Bupropion 19 because “he seems to have gone as far as he can go with the Sertraline.” (AR 326; see also 20 296 (Dr. Whyte noting in November 2006 that Plaintiff “likes the Venlafaxine much better 21 than the Sertraline. Says he has more energy, more motivation and more optimism.”)). 22 Review of records after 2004 also shows that in June 2006, Plaintiff had been 23 admitted for psychiatric treatment when he presented to urgent care “with complaints of 24 increasing depression and suicidal ideation with a plan to carbon monoxide himself. The 25 patient reported relapsing on alcohol in February 2006 after 14 months of sobriety secondary 26 to an incident at his AA house.” (AR 230-32). In June 2006, Dr. Haburchak discussed with 27 Plaintiff the “impact of [his] PTSD on his previous relapses.” (AR 327; see also AR 326 (Dr. 28 Whyte’s July 2006 note of Plaintiff’s hyperarousal in situations where he senses -8- 1 confrontations, nightmares, intrusive memories and hyperviligance.)). In July 2006, Plaintiff 2 reported a 2-week episode of severe depression to Dr. Haburchak. (AR 322). At this point, 3 Plaintiff was still taking Venlafaxine. (See AR 326). In October 2006 Dr. Whyte assessed 4 a GAF score of 48. (AR 304). 5 The ALJ relied on records from September and October 2006 to show that Plaintiff 6 reported that he was not taking medications on a regular basis, that alcohol dependence 7 exacerbates his depression, and there were times when he admitted to not being depressed. 8 (AR 38-39). The ALJ further stated: “Although the claimant still experiences depression, the 9 symptoms are greatly decreased when he is sober. The claimant’s main depression 10 symptoms are evidenced by feelings of hopelessness, suicidal ideation, depressed mood.” 11 (AR 39). The ALJ’s review of the record omits Plaintiff’s reports of major depression lasting 12 for many years despite long periods of sobriety. (AR 205-06 (November 1999); AR 204 13 (May 2000 and January 2001);AR 198-99 (June 2001); AR 272 (Dr. Haburchak’s June 2007 14 note that even with abstinence, Plaintiff’s “emotional stability remains tenuous” in light of 15 the severity of Plaintiff’s depression and PTSD); AR 326 (Dr. Whyte noting in July 2006 16 Plaintiff’s report that “depression set in before he started drinking and while he was still 17 taking Sertraline and Bupropion); AR 282 (March 2007) (“worsening depression over a 18 couple of weeks, with more difficulty getting out of bed to do anything....Remaining 19 abstinent from alcohol.”). 20 The ALJ’s reliance on Plaintiff’s comments at various times that medication helps his 21 depression is of little value given that the record is replete with Plaintiff’s continued 22 complaints of depression and continued treatment for same. Instead, such comments “must 23 be read in context of the overall diagnostic picture....” Holohan, 246 F.3d at 1205. That a 24 person who suffers from severe psychiatric issues such as depression “makes some 25 improvement does not mean that the person’s impairments no longer seriously affect [his] 26 ability to function in a workplace.” Id. Moreover the ALJ relies upon no medical opinion 27 of record suggesting that Plaintiff’s depressive disorder is not independent of his alcoholism 28 or that Plaintiff did not suffer from such disabling depression long before September 2004. -9- 1 Nor do the records cited by the ALJ necessarily support the ALJ’s contrary conclusion when 2 those records are considered in context or considered on the record as a whole. “[W]hile an 3 [ALJ] is free to resolve issue of credibility as to lay testimony or to choose between properly 4 submitted medical opinions, he is not free to set his own expertise against that of a physician 5 who [submitted an opinion to or] testified before him.” McBrayer v. Secretary of Health & 6 Human Servs., 712 F.2d 795, 799 (2d Cir. 1983); see also Tackett, 180 F.3d at 1102-03 (ALJ 7 improperly relied on his interpretation of Plaintiff’s testimony over medical opinions); 8 Gonzalez Perez v. Health & Human Servs, 812 F.2d 747, 749 (1st Cir. 1987) (“The ALJ may 9 not substitute his own layman's opinion for the findings and opinion of a physician....”). On 10 the instant record, the ALJ has improperly rejected Dr. Whyte’s opinion. 11 Plaintiff also argues that the ALJ erred by not adopting Plaintiff’s 100% VA disability 12 rating for depression. “Because social security disability and VA disability programs ‘serve 13 the same governmental purpose–providing benefits to those unable to work because of a 14 serious disability,’ the ALJ must give great weight to a VA determination of disability.” 15 Turner v. Commissioner of Social Security, 613 F.3d 1217, 1225(9th Cir. 2010) (quoting 16 McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). However, “[b]ecause the VA 17 and SSA criteria for determining disability are not identical,’ [the Ninth Circuit 18 has]...allowed an ALJ to ‘give less weight to a VA disability rating if he gives persuasive, 19 specific, valid reasons for doing so that are supported by the record.’” Valentine v. 20 Commissioner of Social Security, 574 F.3d 685, 695 (9th Cir. 2009) (quoting McCarty, 298 21 F.3d. at 1076). 22 Although the parties agree that Plaintiff received a 100% disability rating from the 23 VA, neither cite to that record. Nor does review of the record reflect that a copy of the VA 24 disability rating and/or decision is included. In March, 2009, Dr. Whyte wrote that Plaintiff 25 “carries diagnoses of Major Depression, Recurrent (for which he has been rated 100% 26 disabled by the Veterans Administration), Post-Traumatic Stress Disorder, and Alcohol 27 Dependence. (AR 625). In 2009, Plaintiff’s counsel informed the ALJ prior to Plaintiff’s 28 hearing that “[i]n 2001, [Plaintiff] was awarded disability from the Veterans’ [sic] - 10 - 1 Administration for PTSD and depression, and the total disability rating is now 100%.” (AR 2 92; see also AR 156 (2009 letter to Appeals Council from Plaintiff’s counsel stating: 3 “Attached is a copy of the October 5, 2009, decision letter and the September 30, 2009, 4 ratings decision, granting Claimant 100% disability for major depressive disorder.”); AR 626 5 (2008 letter from Dr. Haburchak stating that the VA “recently evaluated...” Plaintiff and 6 determined that he was 100% disabled); AR 272 (August 2007 progress note mentioning 7 Plaintiff received “100% SC”); AR 191 (March 2002 progress note that Plaintiff reported 8 “he recently became non service connected for his depression and this has greatly relieved 9 his financial burdens....”)). 10 Although the ALJ acknowledges a VA decision exists, he does not identify the 11 disability rating assigned to Plaintiff. The record suggests that Plaintiff received a partial VA 12 disability rating for depression prior to receiving the 100% disability rating. (See id.). The 13 ALJ’s statements concerning the VA disability decision are incongruent with the balance of 14 his decision denying benefits. The ALJ first “recogniz[ed] the complexity in distinguishing 15 between limitations as a result of alcoholism and limitations caused by the claimant’s other 16 psychological impairments, and whether the claimant can be considered disabled by such 17 impairment despite alcoholism.” (AR 40). He then acknowledges that “[t]he VA’s decision 18 clearly distinguishes the alcohol dependence as a separate issue from the depression and 19 other psychological impairment symptoms.” (Id.). He next states that: “The claimant’s 20 psychological impairments are serious enough to be disabling without regard to the substance 21 abuse problem, and it is logical to conclude that they always have been, despite the years of 22 substance abuse.” (Id.). Because the VA decision is not before the Court, there is no way to 23 assess whether the ALJ is restating a finding from that decision. If that is the case, then such 24 a finding is certainly consistent with Dr. Whyte’s opinion and is completely inconsistent with 25 the ALJ’s ultimate conclusion in Plaintiff’s case. 26 Defendant points out that “there is no indication that the VA found Plaintiff was 27 disabled prior to the date he was last ensured.” (Defendant’s Brief, p. 12). While it is true 28 that the VA’s disability onset date is unknown, the ALJ did not reject the VA’s disability - 11 - 1 decision for this reason. Defendant also argues that it would have been “redundant” for the 2 ALJ to state the reasons why he rejected the VA disability decision given that the ALJ had 3 already stated earlier in his decision “evidence in the record contrary to the VA decision.” 4 (Id. at p. 10). However, the standard is clear that to give less weight to a VA disability the 5 ALJ must give “persuasive, specific, valid reasons for doing so that are supported by the 6 record.” Valentine, 574 F.3d 685. The ALJ never specifically adopted nor rejected the VA 7 decision. Nor did he state the weight he attributed to it or a basis therefor. On this record, 8 the ALJ’s statements concerning the VA disability rating are not sufficient to permit adequate 9 review. Moreover, “when the record suggests a likelihood that there is a VA disability 10 rating, and does not show what it is, the ALJ has a duty to inquire.” McLeod v. Astrue, 640 11 F.3d 881, 886 (9th Cir. 2011) (“By failing to obtain and consider [plaintiff’s] VA disability 12 rating, the ALJ erred, denying him the “full and fair hearing” to which he was entitled.”); see 13 also Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (ALJ’s duty to develop the record 14 “exists even when the claimant is represented by counsel.”). Although the ALJ was aware 15 of a VA disability decision in favor of Plaintiff, there is no indication in the record that he 16 inquired as to the basis for that decision, was aware of the precise time period addressed by 17 that decision, or any specific rating assigned to Plaintiff during the relevant time period. The 18 ALJ’s failure to make further inquiry into this matter was erroneous. See McLeod , 640 F.3d 19 at 886. “Because we give VA disability determinations great weight, failure to assist 20 [Plaintiff] in developing the record by getting his disability determination into the record is 21 reasonably likely to have been prejudicial.” Id. at 888 (remanding case). This is especially 22 so given that the “[t]here are limited treatment records for the relevant time period” (AR 38) 23 and that Plaintiff’s treating psychiatrist opines that Plaintiff’s disabling depression is 24 independent of his alcohol dependence and “it is clear” upon review of records that Plaintiff 25 suffered from such depression long before September 2004. (AR 625). The VA disability 26 determination may well shed light on this issue. 27 Plaintiff requests that the Court grant benefits. (Plaintiff’s Brief, p.15). "'[T]he 28 decision whether to remand the case for additional evidence or simply to award benefits is - 12 - 1 within the discretion of the court.'" Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) 2 (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). "Remand for further 3 administrative proceedings is appropriate if enhancement of the record would be useful." 4 Benecke v. Barnhart, 379 F.3d 587, 593, (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 5 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits is appropriate 6 where: 9 (1) the ALJ failed to provide legally sufficient reasons for rejecting the 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 were such evidence credited. 10 Id. at 593(citations omitted). Where the test is met, "we will not remand solely to allow the 11 ALJ to make specific findings....Rather, we take the relevant testimony to be established as 12 true and remand for an award of benefits." Id. (citations omitted). 7 8 13 Here, remand for an immediate award of benefits is inappropriate. Even if the Court 14 were to credit Dr. Whyte’s opinion, see Lester, 81 F.3d at 834 (“Where the Commissioner 15 fails to provide adequate reasons for rejecting the opinion of a treating or examining 16 physician, we credit that opinion as a matter of law.”)(citation omitted), the issue of the onset 17 date remains unresolved. Remand is also appropriate for consideration of the VA disability 18 decision and rating, which may also inform the record as to onset. See McLeod, 640 F.3d at 19 888. On remand, the ALJ may consider additional evidence deemed necessary. See e.g. SSR 20 83-20. Alternatively, on remand, “the...[Commissioner] may decide to award benefits.” See 21 McAllister v. Sullivan, 888 F.2d 599, 604 (9th Cir. 1989). 22 CONCLUSION 23 24 25 26 For the foregoing reasons, remand for further proceedings is necessary to consider whether Plaintiff is disabled under the Social Security Act. Accordingly, IT IS ORDERED that the Commissioner’s final decision in this matter is REMANDED for further proceedings consistent with this Order. 27 28 - 13 - 1 The Clerk of Court is DIRECTED to: 2 (1) amend the docket to reflect that Carolyn W. Colvin, Acting Commissioner of 3 the Social Security Administration, has been substituted as the named 4 Defendant in this action pursuant to Fed.R.Civ.P. 25(d); and 5 (2) enter judgment and close this case. 6 DATED this 26th day of September, 2013. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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