Daniel Genewoo Ee v. Carolyn W. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DANIEL GENEWOO EE,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security
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Administration,
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Defendant.
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____________________________________)

NO. CV 16-5894-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied, and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed this action on August 8, 2016, seeking review of

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the Commissioner’s denial of benefits.

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Magistrate Judge on September 21, 2016.

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summary judgment on December 15, 2016.

The parties consented to a
Plaintiff filed a motion for
Defendant filed a motion for

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summary judgment on January 17, 2017.

The Court has taken both

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motions under submission without oral argument.

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“Order,” filed August 15, 2016.

See L.R. 7-15;

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff, a veteran who served as a tank gunner in Iraq, asserts

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disability since April 24, 2008 (the date his military service ended)

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due to lower back problems and post traumatic stress disorder (“PTSD”)

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(Administrative Record (“A.R.”) 56-57, 156, 179, 203).

An

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Administrative Law Judge (“ALJ”) examined the medical record and heard

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testimony from Plaintiff, Plaintiff’s wife, a medical expert

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(psychiatrist), and a vocational expert (A.R. 16-32, 37-91, 331-2125).

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The ALJ found that Plaintiff suffers from the following severe

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impairments: PTSD, cognitive disorder, polysubstance abuse in

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remission, psychosis (not otherwise specified, likely substance

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induced), obesity, and a lumbar spine disorder (A.R. 19).

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determined that Plaintiff has the residual functional capacity to

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perform a limited range of medium work (A.R. 21-30).1

The ALJ

The ALJ found

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[T]he claimant can lift and/or carry up to 50 pounds
occasionally and 25 pounds frequently; he can stand
and/or walk for 8 hours out of an 8-hour workday; he
can sit for 8 hours out of an 8-hour workday; he can
frequently climb ladders, work at heights, and on
uneven terrain; he can frequently bend, stoop, kneel,
crouch, and crawl; he can perform simple repetitive
tasks; and he is able to have occasional contact with
co-workers and incidental contact with the public.
(continued...)

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Specifically, the ALJ found:

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that a person with this capacity could work as a hand packager,

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hospital cleaner, or industrial cleaner –- jobs existing in

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significant numbers in the national economy (A.R. 31-32 (adopting

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vocational expert testimony at A.R. 87-89)).

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denied review (A.R. 1-3).

The Appeals Council

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner

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of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

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Substantial evidence is “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.”

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Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

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see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

See Carmickle v.

Richardson v.

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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(...continued)
(A.R. 21, 25-30).
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But the

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detracts from the [administrative] conclusion.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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DISCUSSION

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Plaintiff asserts, inter alia, that the ALJ materially erred in

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connection with the ALJ’s consideration of disability ratings by the

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Department of Veterans Affairs (“VA”).

The Court agrees.

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Remand for

further administrative proceedings is appropriate.

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I.

Plaintiff’s Post-Military Schooling and Work Attempt

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Plaintiff has been attending school during most of the time

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Plaintiff claims to have been disabled (A.R. 57-58).

During 2009-14,

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Plaintiff received a bachelor’s degree in philosophy from Chapman

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University and a master’s degree in social work from the University of

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Southern California (A.R. 50-51, 57-58).2

At the administrative

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A January 9, 2013 VA treatment note indicates that
Plaintiff was doing “fair” and had just been accepted to graduate
school at USC (A.R. 529-30). His “GAF” (Global Assessment of
Functioning) score then was 70, indicating “some mild symptoms”
(A.R. 529). See American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (“DSM”) 34 (4th Ed. 2000)
(Text Revision) (GAF scale). Clinicians use the GAF scale to
rate “psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Id. Plaintiff
requested a referral to the PTSD clinic (A.R. 529). Plaintiff
was there for an initial evaluation, which was necessary for
Plaintiff to continue his vocational rehabilitation program (A.R.
529-30). Plaintiff reported he was doing well in school and
(continued...)
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hearing, Plaintiff said he had been accepted into chiropractic school

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for the fall of 2016 (A.R. 67-68).3

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It appears that Plaintiff’s only full-time work attempt since his

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military discharge was a five-month trial after he finished his

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master’s degree.

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Administration as a claims representative in training from September

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2014 through January 20, 2015 (A.R. 51-52, 203-04).

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fired after a hospitalization earlier that month for psychosis

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Plaintiff worked for the Social Security

Plaintiff was

following the use of methamphetamine (discussed below) (A.R. 52).

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II.

Plaintiff’s PTSD, Admitted Drug Use and Subsequent Treatment

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Plaintiff reportedly was diagnosed with PTSD in 2011 (A.R. 533;

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see also 1653-61 (“Social Work Mental Health Assessment/Evaluation”

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dated in June of 2011 diagnosing chronic PTSD)).

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records suggest a PTSD onset long prior to 2011, however.

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psychiatry consult dated in June of 2008 stated that Plaintiff had

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anxiety disorder (not otherwise specified) and indicated a need to

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“r/o” (rule out) PTSD (A.R. 973-76; see also A.R. 961-69 (traumatic

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brain injury screening from same time frame noted “suspected/probable”

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PTSD); A.R. 1900-01 (positive PTSD screening test in June of 2008)).

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A “Mental Health Initial Assessment-Consult” in January of 2009

Some VA treatment
A

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(...continued)
would be graduating from Chapman University soon (A.R. 530).

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Plaintiff’s wife testified that she helped Plaintiff
obtain his degrees (A.R. 77, 79-80). She opined that Plaintiff
would not be able to attend chiropractic school due to
Plaintiff’s limited ability to handle stress (A.R. 80-81).
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diagnosed PTSD, “MDD” (major depressive disorder), substance induced

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psychosis (resolving), and polysubstance dependence (methamphetamine,

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THC, and alcohol) (A.R. 931-37; see also A.R. 1666-74 (psychiatric

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evaluations dated in March and April of 2010 diagnosed PTSD and

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psychosis (not otherwise specified))).

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to June 2008 reflect service-connected disability based on PTSD (A.R.

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837-979; see generally A.R. 1653-1902 (Progress Notes for VA mental

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health treatment from 2008 through 2011); but see A.R. 551-54

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(negative PTSD screening test dated in August of 2012)).

“Consult Requests” dating back

There are

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also progress notes for PTSD group therapy from May 2011 through July

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2011, and from February 2013 through September 2013 (A.R. 1642-49,

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1652-53, 1661-64).4

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Plaintiff also underwent psychiatric treatment at
Kaiser for PTSD beginning in late 2014 (A.R. 595-601). Plaintiff
then was working for the Social Security Administration and
reported that he was experiencing agitation and problems
affecting his concentration, as well as PTSD symptoms of
nightmares, hypervigilance, exaggerated startle response,
insomnia, flashbacks, mild paranoia, and racing thoughts (A.R.
595-96). Plaintiff also reportedly had symptoms of depression
and anxiety (A.R. 596). His mental status examination was normal
(A.R. 599). A social worker diagnosed generalized anxiety
disorder and PTSD, with a note to rule out “Panic Disorder
without Agoraphobia” (A.R. 599). His GAF was “60-51” indicating
“moderate symptoms,” with a highest GAF in the past year of 80
(A.R. 599). Plaintiff reportedly had “moderate” impairment
getting along with others, participating in social activities,
and performing work or school tasks (A.R. 600). As of
December 2, 2014, Plaintiff claimed that he had been sober for
one month and had been having issues with his coworkers (A.R.
603). His mental status examination was normal except for
anxious mood (A.R. 603-04). A social worker diagnosed adjustment
disorder with anxiety and a GAF of “60-51” (A.R. 604). On
December 8, 2014, Plaintiff presented for a psychiatric
evaluation with reports of anxiety and insomnia (A.R. 577-79,
606). He said he stopped drinking alcohol in the last two months
because his wife asked him to stop (A.R. 606). Plaintiff said he
(continued...)
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At the hearing before the ALJ, Plaintiff admitted having some

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issues with alcohol and also admitted to having used methamphetamine

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twice (A.R. 64).

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alcohol “on the weekend and stuff” between 2008 and 2015 (A.R. 65).

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Plaintiff claimed that he had stopped drinking completely when he

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began his job with the Social Security Administration (A.R. 65).

Plaintiff testified that he “occasionally” drank

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Plaintiff said he first used methamphetamine in 2008 to self-

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medicate when he got out of the military, but used “a little too much”

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and ending up in a hospital psychiatric ward (A.R. 64-65).5

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Plaintiff

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(...continued)
had to work and do a large part of the household chores (A.R.
607). At that time, Plaintiff’s wife was pregnant and attending
nursing school and they had a six month old baby (A.R. 607). On
examination, Plaintiff’s mood was anxious and his affect was
restricted (A.R. 607). The psychiatrist diagnosed PTSD, anxiety,
and insomnia, and prescribed Ativan, Zoloft, Desyrel, and
Flexeril (A.R. 608-09).
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On December 12, 2008, Plaintiff presented to the
emergency room with a methamphetamine overdose (A.R. 348-68).
According to the “Emergency Department Reports,” Plaintiff had a
“history of methamphetamine abuse” and reported using “a lot” of
crystal meth “daily” (A.R. 350). Plaintiff denied any alcohol
use (A.R. 350). Urinalysis was positive for amphetamines (A.R.
351; see also A.R. 799-804 (drug testing showed positive results
for methamphetamine and benzodiazepines on December 15, 2008)).
Plaintiff was given Haldol and Ativan for “drug-induced anxiety”
and discharged with instructions to follow up at the VA (A.R.
352). Plaintiff was admitted to the VA for a psychiatric hold
from December 15-18, 2008, for methamphetamine induced psychosis
(A.R. 833-36; see also A.R. 1795-1856 (Progress Notes re same)).
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said he did not use methamphetamine again until 2015 (A.R. 64, 66).6

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Plaintiff then sought treatment from the VA (A.R. 64).7

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On January 6, 2015, Plaintiff was hospitalized for
hallucinations and aggressive behavior (A.R. 331-47, 354-60, 367,
369-89, 573-74, 698-737). Plaintiff reported a “history of PTSD
and amphetamine abuse and dependence” (A.R. 373). He was
observed to have an altered mental status (psychosis and
agitation) due to amphetamine or related drug abuse, anxiety
disorder, depression, and polysubstance abuse (A.R. 333, 340).
Urinalysis was positive for amphetamine/methamphetamine and there
is mention that Plaintiff “apparently uses PCP” (A.R. 359,
370-71, 380, 388, 704). He was diagnosed with psychosis (not
otherwise specified) and a history of PTSD (A.R. 373). His GAF
was 35 at admission (A.R. 373). Plaintiff admitted to a
“significant period” of time when he was using alcohol
excessively, as supposedly confirmed by Plaintiff’s wife (A.R.
713). Plaintiff denied using any other drugs (A.R. 713).
Plaintiff began attending group therapy on January 13, 2015
(A.R. 610). He reportedly was doing better after the recent
hospitalization, and said he was looking forward to returning to
work in one week (A.R. 610). Plaintiff denied any substance
abuse (A.R. 610). A psychologist diagnosed schizoaffective
disorder (A.R. 610-11).
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VA records indicate diagnoses of, inter alia, PTSD,
addiction, a psychotic disorder and methamphetamine dependence
(A.R. 390-96). Plaintiff had an inpatient psychiatric ward stay
from March 11, 2015 through March 16, 2015 for psychosis (likely
substance induced), stimulant use disorder, “ETOH” (alcohol) use
disorder, and PTSD (A.R. 399-527; see also A.R. 887-95, 910-16
(psychiatric consultant’s reports at intake)). His GAF was 50
(A.R. 406). Plaintiff acknowledged his recent methamphetamine
use, supposedly beginning in January when he lost his job, and
Plaintiff claimed he had ongoing PTSD (A.R. 400-01, 472, 484).
Plaintiff reportedly “binges” alcohol and had at least two DUIs,
with “intermittent attempts to remain sober” (A.R. 401).
Plaintiff was discharged with trials for Risperdal, Sertraline,
and Hydroxyzine (A.R. 405).
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Plaintiff said he was in an inpatient treatment program for

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combat trauma PTSD and substance abuse from March or April of 2015

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until November of 2015 (A.R. 66-67).8

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the treatment went “pretty well” (A.R. 66-67; see also A.R. 1941-42,

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1958-63, 1967-72 (VA “Discharge Summary” and related notes from

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inpatient stay indicating that Plaintiff successfully completed the

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program and was discharged with a final diagnosis of amphetamine

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dependence and PTSD)).

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treatment at the time of the hearing before the ALJ (A.R. 67; see also

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Plaintiff said he was seeking outpatient

A.R. 1959).

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Plaintiff indicated he thought

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On March 5, 2015, Plaintiff reported to his doctor that
he had started using methamphetamine in January and last used two
days before the appointment (March 3) (A.R. 570-72, 614). On
examination, Plaintiff’s mood was depressed and his affect was
restricted (A.R. 615). Plaintiff was diagnosed with anxiety, a
drug induced mental disorder and PTSD, and was prescribed
Seroquel, Klonopin, Zoloft, Flexeril, and Desyrel (A.R. 615-16,
624). The next note indicates that on March 23, 2015, Plaintiff
was admitted to the VA hospital for inpatient psychiatric
treatment following methamphetamine use and paranoia (A.R. 618;
see also A.R. 830-33, 980-1632, 1947-2097 (VA inpatient treatment
records)).
The doctor from Kaiser continued to treat Plaintiff with
medication follow-up appointments during Plaintiff's inpatient VA
treatment (A.R. 566-73, 620-29). On May 1, 2015, Plaintiff
reported that he was sober (A.R. 566-68, 620; see also A.R.
785-99, 804-29 (negative drug screens from March 2015 through
August 2015)). Plaintiff was prescribed Minipress, Zoloft,
Risperdal, and Benadryl (A.R. 620-21, 624-27). On examination,
Plaintiff’s mood was anxious and his affect was restricted (A.R.
621). Plaintiff was diagnosed with PTSD, major depressive
disorder (recurrent, mild), and insomnia (A.R. 621).
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III. The VA Disability Rating and the ALJ’s Consideration Thereof

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The VA records contain “Consult Requests” for Plaintiff’s service

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connected/related disability ratings from June 2008 through July 2008,

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December 2008 through January 2009, March 2010, December 2013, and

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March 2015 through August 2015.

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including related medical test results and observations).9

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overall disability ratings ranged from 80 to 100 percent, with a 100

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percent disability rating for PTSD and lesser ratings for other

See A.R. 837-979 (“Consult Requests”
The

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conditions (i.e., tinnitus, sinusitis, and limited flexion of the

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knee) (A.R. 837-979).

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On September 8, 2015, the VA issued a “Rating Decision” and

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awarded increased disability benefits (A.R. 179-85; see also A.R. 172-

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78 (accompanying letter); A.R. 249-50 (letter summarizing Plaintiff’s

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VA benefits)).

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disability rating of 90 percent based on chronic sinusitis, tinnitus,

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allergic rhinitis, PTSD with insomnia, alcohol dependence, and

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amphetamine abuse (A.R. 173-74, 179-85).

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Plaintiff’s “entitlement to individual unemployability” (at a 100

The VA found Plaintiff has an overall or combined

The VA recognized

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The testing included a “Physical Medicine Rehab
Consult” dated June 6, 2015 (A.R. 853-55), a prosthetics request
for lower back pain from April 2015 (A.R. 855-57), an optometry
consult from June 2015 (A.R. 860-64), a “neurobehavior” consult
from July 2015 (A.R. 867-72), an audiology consult from May 2015
(A.R. 878-79), psychiatry consults from March 2015 (A.R. 887-95,
910-16), a “disability exam” from December 2013 (A.R. 916-17), a
mental health assessment from January 2009 (A.R. 931-37), a
psychiatry consult from December 2008 (A.R. 941-46), an optometry
consult from July 2008 (A.R. 954-56), a traumatic brain injury
screening from June 2008 (A.R. 959-70), and a psychiatry consult
from June 2008 (A.R. 972-77).
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percent rate) effective October 1, 2015, because Plaintiff was “unable

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to secure or follow a substantially gainful occupation as a result of

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service-connected disabilities” (A.R. 174, 181, 249).

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the objective and subjective evidence assertedly supporting its

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determination.

The VA detailed

See A.R. 180-84.

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At the administrative hearing, Plaintiff mentioned that the VA

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had rated him as “unemployable” (A.R. 67).

The ALJ responded that the

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VA’s determination of unemployability is “different” than the Social

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Security Administration’s determination (A.R. 67).

In the ensuing

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adverse decision, the ALJ mentioned that he had read the “Veterans

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Affair Rating Decision dated September 8, 2015,” but gave “the VA

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determination little weight” “based on the objective evidence detailed

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above” (A.R. 30).

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Decision or otherwise explain the reason(s) for giving only “little

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weight” to the VA’s determination(s) (A.R. 30).10

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The ALJ did not discuss the contents of the Rating

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The ALJ also noted that Plaintiff’s VA case manager
provided a letter dated September 7, 2015, reporting Plaintiff’s
subjective complaints and submitting a copy of Plaintiff’s VA
Rating Decision (A.R. 26-27 (citing A.R. 1903-05)). Plaintiff
then was in the VA inpatient treatment program and reportedly had
been sober since March (A.R. 1903; see also A.R. 785-99, 804-29
(negative drug screens from March 2015 through August 2015)).
The ALJ gave the case manager’s letter “little weight” because:
(1) it “only repeated the information in the [VA] rating and the
claimant’s subjective complaints”; (2) did not make an
independent assessment; (3) was “inconsistent with or
contradicted by objective evidence and medical opinions,”
“mirror[ed] the account of the claimant,” and reported facts of
which the case manager had no personal knowledge; and (4) the
case manager purportedly was “engaging in advocacy” (A.R. 26-27).
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IV.

The ALJ Materially Erred by Not Stating Sufficient Reasons for
Failing to Give Great Weight to the VA’s Determinations.

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An ALJ must always consider a VA rating of disability and must

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ordinarily give “great weight” to such a rating.

See McCartey v.

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Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (“McCartey”).

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may give “less weight” to a VA rating of disability only if the ALJ

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states “persuasive, specific, valid reasons for doing so that are

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supported by the record.”

An ALJ

Id. (citation omitted); see also Valentine

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v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009)

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(“Valentine”) (reaffirming same).

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disability rating on the ground that the VA inquiry and the Social

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Security Administration inquiry are “different” runs “afoul” of

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McCartey’s requirements.

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“explicitly relied on the marked similarity between the disability

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programs of the VA and of the SSA”) (citations and quotations

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omitted).

An ALJ’s rejection of a VA

Valentine, 574 F.3d at 695 (McCartey

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Although the ALJ cited McCartey’s requirements, the ALJ failed to

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state any “persuasive, specific, valid reasons” for giving less than

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great weight to the Rating Decision, and failed to explain adequately

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how the various VA determinations (not just September 8, 2015

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determination) may have influenced the ALJ’s residual functional

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capacity determination.

The ALJ stated only:

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. . . I have read and considered the [VA] Rating Decision

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dated September 8, 2015 [A.R. 172-85, 249-50].

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Circuit, because the VA and Social Security Administration
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In the Ninth

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disability programs are similar, an [ALJ] must ordinarily

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give great weight to the VA determination of disability

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[citing McCartey v. Massanari].

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SSA criteria for determining disability are not identical,

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an [ALJ] may give less weight to a VA disability rating if

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there are persuasive, specific, valid reasons for doing so

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that are supported by the record [citation omitted].

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in this case, I give the VA determination little weight

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based on the objective evidence detailed above.

However, because the VA and

Thus,

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(A.R. 30 (emphasis added)).

The ALJ’s unspecific reference to “the

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objective evidence detailed above” is not a “persuasive, specific,

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[or] valid” reason to reject the VA ratings.

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discussion of the medical record is lengthy (see A.R. 23-30), the

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discussion fails to pinpoint any specific medical findings that

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supposedly contradict the VA’s disability determinations.

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v. Colvin, 2016 WL 1117774, at *3-4 (E.D. Cal. Mar. 22, 2016) (finding

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inadequate an ALJ’s rejection of a VA rating where the ALJ generally

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referenced the lack of “sufficient objective medical support”).

While the ALJ’s

See Young

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As potential reasons to reject the VA’s disability

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determinations, Defendant suggests:

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master’s degree during the alleged disability period; and (2) the VA’s

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alleged failure to consider whether substance abuse was a contributing

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factor.

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affirm the decision of an agency on a ground that the agency did not

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invoke in making its decision.”

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See Def.’s Motion, pp. 1-2.

(1) Plaintiff’s receipt of a

However, the Court “cannot

Pinto v. Massanari, 249 F.3d 840, 847

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(9th Cir. 2001).11

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sufficient reasons for discounting the detailed VA disability

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determinations.

On the present record, the ALJ failed to state

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The Court is unable to conclude that the ALJ’s error was

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harmless.

See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

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(an error “is harmless where it is inconsequential to the ultimate

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nondisability determination”) (citations and quotations omitted).

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ALJ based the mental residual functional capacity determination in

The

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part on the opinion of the consultative examining psychologist (A.R.

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26).

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medical records (including the VA disability ratings and supporting

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medical evidence) (A.R. 2110).

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physicians, on whom the ALJ also partially relied, rendered their

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opinions before the VA made its Rating Decision, and thus did not have

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the benefit of reviewing the Rating Decision (A.R. 102).

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expert, who apparently did review the Rating Decision, merely stated

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conclusory agreement with the consultative psychologist’s opinion

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concerning Plaintiff’s mental residual functional capacity (A.R. 74-

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75) (of the consultative psychologist, the medical expert stated, “I

This psychologist did not review any of Plaintiff’s voluminous

The non-examining state agency

The medical

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Plaintiff’s VA treating psychiatrist, Dr. Mark Barad,
observed that Plaintiff “still has psychotic symptomatology after
[eight] months of sobriety and the use of neuroleptic
medications, suggesting a primary psychotic process” and
“substantial PTSD and mood symptoms” (A.R. 2125). Under these
circumstances, the VA’s alleged failure to factor out substance
abuse might not be a “persuasive” reason to discount the VA’s
Rating Decision. See McKee v. Commissioner, 446 Fed. App’x 36,
38 (9th Cir. 2011) (“The ALJ’s reason for rejecting the VA’s
disability rating, ‘because substance abuse clearly is
contributory’ is not ‘“persuasive’ or ‘valid,’ because the record
shows that the rating was made while [the claimant] was sober.”).
14

1

think obviously the doctor, you know, conducted a face-to-face

2

interview, you know, certainly has a good basis from which to base a

3

determination”).

4

to have considered adequately those medical records concerning

5

Plaintiff’s combined physical and mental limitations which informed

6

the VA’s ratings determinations.

None of the physicians on whom the ALJ relied appear

7
8

V.

Remand for Further Administrative Proceedings is Appropriate.

9
10

Remand is appropriate because the circumstances of this case

11

suggest that further administrative review could remedy the ALJ’s

12

errors.

13

INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an

14

administrative determination, the proper course is remand for

15

additional agency investigation or explanation, except in rare

16

circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015)

17

(“Unless the district court concludes that further administrative

18

proceedings would serve no useful purpose, it may not remand with a

19

direction to provide benefits”); Treichler v. Commissioner, 775 F.3d

20

1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative

21

proceedings is the proper remedy “in all but the rarest cases”);

22

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will

23

credit-as-true medical opinion evidence only where, inter alia, “the

24

record has been fully developed and further administrative proceedings

25

would serve no useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-

26

81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further

27

proceedings rather than for the immediate payment of benefits is

28

appropriate where there are “sufficient unanswered questions in the

McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see also

15

1

record”).

2
3

There remain significant unanswered questions in the present
For example, even if the VA ratings are given great weight,12

4

record.

5

there still would be the issue of precisely when Plaintiff became

6

disabled.

7

2015).

8

back to June of 2008.

The ALJ addressed only the most recent VA ratings (done in

Plaintiff appears to have had disability determinations dating
See A.R. 970-72.

9
10

CONCLUSION

11
12

For all of the foregoing reasons,13 Plaintiff’s and Defendant’s

13

motions for summary judgment are denied and this matter is remanded

14

for further administrative action consistent with this Opinion.

15
16

LET JUDGMENT BE ENTERED ACCORDINGLY.

17
18

DATED: February 15, 2017.

19
/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25

12

On remand, the ALJ must either give the ratings “great
weight” or state “persuasive, specific, valid reasons” for not
doing so. See McCartey, 298 F.3d at 1076.

26
13

27
28

The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
appropriate at this time.
16