Pohlmann v. Colvin

Filing 22

REPORT AND RECOMMENDATION re Cross-Motions for Summary Judgment [(16], 19 ). It is recommended that the District Court: GRANT plaintiffs Motion for Summary Judgment to the extent it seeks a remand for further administrative proceedings [Doc. No . 16]; DENY defendant's Cross-Motion for Summary Judgment [Doc. No. 19]; REMAND the matter to the SSA. Within fourteen (14) days after being served with a copy of this Report and Recommendation, "any party may serve and file written objections". Signed by Magistrate Judge Karen S. Crawford on 5/12/17.(dlg)

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1 2 3 MAY 1 5 2017 4 CLERK US DISTRICT COURT SOUTHERN DISTRICT/OF CALIFORNIA BY KASC+-J DEPUTY 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 Case No.: 3:16-CV-00700-MMA-KSC CHRISTY ANNA POHLMANN, an individual, REPORT AND RECOMMENDATION RE CROSS­ MOTIONS FOR SUMMARY JUDGMENT Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 [Doc. Nos. 16, 20] Defendant. 17 18 Pursuant to Title 42, United States Code, Section 405(g), of the Social Security Act 19 ("SSA"), plaintiff filed a Complaint to obtain judicial review of a final decision by the 20 Commissioner of Social Security ("Commissioner") denying her disability insurance 21 benefits.1 Pursuant to Title 28, United States Code, Section 636(b)(1)(B), and Civil Local 22 Rules 72.1(c)(1)(c) and 72.2(a), this matter was assigned to the undersigned Magistrate 23 24 25 26 27 28 i 1 Title 42, United States Code, Section 405(g), provides as follows: “Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party... may obtain a review of such decision by a civil action... brought in the district court of the United States.... The court shall have power to enter, 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 cause for a rehearing. The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive.” l t ■ i fi-r.v-or>7on-MM a-k sc 1 Judge for a Report and Recommendation. 2 Presently before the Court are: (1) plaintiffs Motion for Summary Judgment [Doc. 3 No. 16]; (2) defendant's Cross-Motion for Summary Judgment [Doc. No. 19]; 4 (3) defendant's Response in Opposition to Plaintiffs Motion [Doc. No. 20]; (4) plaintiffs 5 Reply to defendant’s Opposition [Doc. No. 21]; and (5) the Administrative Record [Doc. 6 No. 9.]. After careful consideration of the moving and opposing papers, as well as the 7 Administrative Record and the applicable law, this Court RECOMMENDS that the 8 District Court remand the case for further consideration by the Commissioner pursuant to 9 the “fourth sentence” of Section 405(g) and enter a final judgment. Melkonyan v. Sullivan, 10 111 S.Ct. 2157 (1991); Sullivan v. Finkelstein, 110 S.Ct. 2658 (1990). 11 I. Background and Procedural History. 12 On March 24, 2014, plaintiff filed an application for a period of disability and 13 disability insurance benefits (“DIB”) alleging disability beginning January 1, 2011. [AR 14 155-156.] Plaintiffs application states that she was bom on July 29,1979. She said in her 15 application she was unable to work due to (1) severe migraines; (2) depression; (3) post- 16 traumatic stress disorder (“PTSD”); (4) Unilateral Pars Defect in her spine; and (5) stress 17 incontinence. [AR 98.] On May 21,2014, the Commissioner denied plaintiffs application 18 for DIB. [AR 92-94.] Plaintiff requested reconsideration on July 14, 2014 [AR 95], but 19 her request was denied on October 20, 2014. [AR 98-102.] On October 31, 2014, she 20 requested a hearing before an administrative law judge (hereinafter “ALJ”). [AR 103-104.] 21 A hearing before an administrative law judge was held on May 27, 2015. [AR 35-64.] 22 On September 16, 2015, the ALJ issued a written opinion concluding that plaintiff 23 did not qualify for DIB under the SSA. [AR 21-30.] In reaching this decision, the ALJ 24 found that plaintiff has the severe impairments of “history of pars defect at L5-S1 of the 25 lumbar spine; history of migraine headaches; history of herniated disc thoracic spine; 26 alcohol dependence; and depression/mood disorder.” [AR 23.] 27 concluded she did not have an impairment or combination of impairments that meet SSA 28 disability criteria and, as a result, would have the residual functional capacity to perform a However, the ALJ 2 3 ■ 1 fi-r.V-00700-MM A -K sn 1 ■ full range of light work with no sustained interaction with supervisors, coworkers and the 2 public. [AR 23-28.] 3 On November 13, 2015, plaintiff requested review of the ALJ’s decision by the 4 Appeals Council. [AR 15-17.] However, on January 27,2016, the Appeals Council denied 5 plaintiffs request for review. [AR 1-3.] 6 II. Standards of Review. 7 The final decision of the Commissioner must be affirmed if it is supported by 8 substantial evidence and if the Commissioner has applied the correct legal standards. 9 Batson v. Comm'r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 10 Under the substantial evidence standard, the Commissioner's findings are upheld if 11 supported by inferences reasonably drawn from the record. Id. If there is evidence in the 12 record to support more than one rational interpretation, the District Court must defer to the 13 Commissioner's decision. Id. Substantial evidence means "such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion." Osenbrock v. Apfel, 15 240 F.3d 1157,1162 (9th Cir. 2001). The Court must weigh both the evidence that supports 16 and detracts from the administrative ruling. Tackett v. Apfel, 180 F.3d 1094,1097 (9th Cir. 17 1999). 18 Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary 19 judgment if the movant shows that there is no genuine dispute as to any material fact and 20 the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Summary 21 judgment motions, as defined by Fed.R.Civ.P. 56, contemplate the use of evidentiary 22 material in the form of affidavits, depositions, answers to interrogatories, and admissions. 23 In Social Security appeals, however, the Court may Took no further than the pleadings and 24 the transcript of the record before the agency,’ and may not admit additional evidence. 25 Morton v. Califano, 481 F.Supp. 908, 914 n. 2 (E.D.Tenn.1978); 42 U.S.C. § 405(g). 26 "[Although summary judgment motions are customarily used [in social security cases], 27 and even requested by the Court, such motions merely serve as vehicles for briefing the 28 3 3 • 1 fi-r.v-nn7nn.MM a -k sr. 1 parties’ positions, and are not a prerequisite to the Court's reaching a decision on the 2 merits.” Kenney v. Heckler, 577 F.Supp. 214, 216 (D.C. Ohio 1983). 3 IIL Medical Evidence? 4 A. 5 The record includes medical records from the Department of Veterans Affairs 6 indicating that plaintiff was a veteran of the Gulf War Era and that she served in the Navy 7 from December 19,2000 to March 1,2006. [AR 153.] The record contains three disability 8 rating decisions from the Department of Veterans Affairs. [AR 484-497, 498-505, 9 506- 523.] 10 Disability Determinations by the Department of Veterans Affairs. In a decision dated April 19, 2013, from the Department of Veterans Affairs, 11 plaintiffs overall service connected disability rating was 100%. [AR 486.] 12 Department of Veterans Affairs’ decision was based on an overall assessment of plaintiffs 13 service connected conditions. [AR 485-486.] Plaintiffs service connected disability for 14 her sciatic nerve in her left and right legs with pars defect L5-S1 (sometimes also referred 15 to as a “unilateral pars defect L5-S1”) was increased from 10% to 20%, effective October 16 30, 2012. [AR 484-486, 491-92.] Plaintiffs service connected disability for her major 17 depressive disorder was increased from 50% to 70%, effective October 30, 2012. Id. 18 Plaintiffs service connected condition of migraine headaches was found to be 30% 19 disabling. [AR486.] The 20 In a decision dated November 26, 2013, from the Department of Veterans Affairs, 21 plaintiff received a determination that her “stress incontinence” was 60% disabling. [AR 22 498-503.] The “reasons for decision” were as follows: (1) plaintiff was required to wear 23 “absorbent materials which must be changed more than four times per day;” (2) plaintiff 24 25 26 27 28 2 The instant dispute concerns only whether the ALJ properly evaluated and/or addressed plaintiffs overall service connected disability rating from the Department of Veterans Affairs. [Doc. No. 16, at pp. 6-17; Doc. No. 20-1, at pp. 6-16; Doc. No. 21, at p. 3.] Accordingly, a summary of plaintiffs disability determinations by the Department of Veterans Affairs are summarized herein. The Court refers to specific evidence from the record where pertinent to the Court’s analysis in the Discussion section of this Order. 4 1 • 1A-CV-00700-MM A -K SC 1 was waking up “to void five or more times per night;” and (3) plaintiffs “daytime voiding 2 interval [was] less than one hour.” [AR 503.] 3 In a decision dated March 3, 2014, from the Department of Veterans Affairs, 4 plaintiffs overall service connected disability rating remained at 100%. [AR 148.] 5 However, her disability rating for her evaluation of migraine headaches was increased from 6 30 percent disabling to 50 percent disabling, effective October 30,2012. [AR 153-154.] In 7 its determination, the Veterans Administration states: 8 Evaluation of migration headaches, which is currently 30 percent disabling, is increased to 50 percent effective October 30,2012, the date we received your claim based on continuous prosecution. The overall disability picture demonstrates a level of functional impairment that more approximates that which is contemplated in the 50 percent evaluation criteria. An evaluation of 50 percent is assigned for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 9 10 11 12 13 At the VA exam, you reported migraines 3-5 times per week with nausea, vomiting, changes in vision, and photo and phone sensitivity. The examiner noted there is evidence of very frequent prostrating and prolonged attacks of migraine headache pain, [sic] You reported missing 48 days from school in the past 12 months due to migraine headaches. 14 15 16 17 18 19 20 21 22 23 24 25 26 [AR 154.] B. May 27, 2014 Hearing Before the ALJ. 1. Plaintiffs Testimony. At the hearing, plaintiff testified that she was 35 years old, and had completed some college. [AR 38.] She testified that she had three children, two of whom lived with her. Id. Plaintiff testified that regarding her history with drug or alcohol problems, she had one “DUI” in 2013 but “since then [she hasn’t] used alcohol.” [AR 38; AR 48.] She also testified that she was using medical marijuana, but she had abstained from using it for the last month. [AR 38; AR 48.] 27 28 5 7 • 1 fi-r.v-nn7nn.MM a -k sr. 1 At the hearing, the ALJ noted as follows: “You’re 100 percent VA disability, and 2 you’ve got SSDI here. What is that?” [AR 39.] Plaintiff explained that she was originally 3 approved for Social Security Disability, but then she filed an appeal regarding the date of 4 onset. Id. Plaintiff said that she was currently receiving disability benefits, but understood 5 that she may have to repay them. Id. 6 Plaintiff testified that she earned a pharmacy technician certification in 2013. [AR 7 39-40.] She said that in obtaining the certification, she “had many absences due to [her] 8 illnesses,” but the school worked with her to help her graduate. Id. Plaintiff testified that 9 she was in the Navy for six years. During that time, she was stationed in Camp Pendleton 10 as a hospital corpsman, and she also did many field operations with the Marines. [AR 40- 11 41.] She testified that left the Navy on a pregnancy discharge because she was “going 12 through [her] divorce and pregnant with [her] third child.” [AR 40.] 13 The ALJ asked plaintiff about what medications she took on a daily basis, noting 14 that she had “quite a few pain meds” listed on her medical records. [AR 40.] Plaintiff 15 testified that she took them “all every day for [her] back and/or [her] migraines.” Id. The 16 ALJ asked plaintiff when she started having physical problems. Id. Plaintiff testified that 17 she “was first diagnosed with the migraines when [she] was in boot camp which was in 18 March of 2001.” [AR 41.] She further testified that she injured her back in approximately 19 2002, and then it just progressively became worse after that when they eventually 20 discovered she had a fracture referred to as pars defect. Id. The ALJ asked plaintiff about 21 how she fractured her back, and plaintiff said that she was not sure. Id. Plaintiff further 22 explained that she is “pretty petite, and [she] was having to carry pretty heavy packs,” so 23 it may have been the stress on her back from that. Id. She also noted that she has a herniated 24 disc in her back. Id. The ALJ asked plaintiff how she got the herniated disc, and plaintiff 25 said that she was not sure. Id. She explained generally that “[t]he military was pretty rough 26 on [her] body.” Id. 27 The ALJ asked plaintiff how she cares for her two children, and plaintiff explained 28 that she “get[s] help a lot of the time.” [AR 41.] Plaintiff testified that she receives help 6 1 • 1 fi-CV-0n700-MM A-KSC 1 with her children from the following people: (1) a caregiver/friend named Shanna Dodson; 2 (2) a neighbor, Steve Millot; (3) plaintiffs mother; and (4) her children’s sports coaches . 3 with transporting them to activities. [AR 41.] Plaintiff explained that she “spends many 4 days in bed so it’s tough.” Id. Regarding her migraines, plaintiff testified that at the time 5 of the hearing, she was experiencing them daily. Id. Plaintiff said that she used to get 6 migraines about three to five times a week, but then approximately six or seven months 7 ago, she started experiencing them daily. Id. Plaintiff further testified that her migraines 8 began around the time of her enlistment with the Navy and that she had to miss a lot of 9 duty. [AR 43.] She said that her migraine medications generally prevent her from driving 10 because it causes her photosensitivity, and it can also make her irritable, constipated, and 11 nauseous. Id. When the ALJ asked plaintiff whether the migraines were the most serious 12 issue she has, she said that “it’s a tie between that and [her] back.” Id. 13 Regarding her back pain, plaintiff testified that she had not had an MRI since she 14 was on active duty when they discovered her herniated disc. [AR 44.] She testified that she 15 had asked her doctor for it, but they denied it. Id. However, she explained that she had an 16 appointment with neurology one month after the hearing “to explore the option of getting 17 an MRI and also some type of pain injections in her back.” Id. Regarding medical issues 18 that affect plaintiffs ability to work other than migraines and back problems, plaintiff 19 testified that she had PTSD, depression, anxiety, and stress incontinence. [AR 44.] Plaintiff 20 explained that the medication that she takes for depression “helps a small bit” and that she 21 would “rather take it than not take it.” [AR 46.] 22 When the ALJ asked plaintiff what she does during the day, she said that she spends 23 almost every day in bed. Id. The ALJ asked her whether she did that every day, and 24 plaintiff said yes, “some days it’s hard to even shower.” Id. When the ALJ asked plaintiff 25 whether she does any physical exercise, she said “very seldomly.” [AR 47.] She said that 26 she sometimes tries to go for a walk, but then she ends up in more pain. Id. Plaintiff 27 testified that in the past she has belonged to a gym, in order to walk on the treadmill, and 28 for the tanning and massage services. Id. The ALJ asked plaintiff how recently she went 7 i • 16-cv-nn7no-MM a -k sc. 1 to the gym. Id. Plaintiff said that she went to the gym “last week just to get on the treadmill 2 and try to get a little exercise because the doctors have said that if I can try to get a little 3 movement it’s better than nothing.... But I’m usually not getting more than few minutes 4 on the treadmill before it starts to really bother my lower back.” Id. at 47-48. 5 After the ALJ finished his initial examination of plaintiff, plaintiffs attorney 6 questioned her. Plaintiffs attorney asked her about the disability rating(s) she received 7 from the Department of Veterans Affairs. [AR 49.] Plaintiff testified that her disability 8 rating was for her sciatica, headaches, tinnitus, stress incontinence (which she believed was 9 listed as chronic cystitis), depression, and her back issues. [AR 49-50.] Plaintiffs attorney 10 asked her how long her disability rating from the Department of Veterans Affairs has been 11 at 100 percent. [AR 50.] Plaintiff testified that she has been at 100 percent disability rating 12 since 2012. Id. Plaintiffs attorney asked her about whether she has experienced difficulty 13 with fainting episodes. Id. Plaintiff testified that she has had several fainting episodes and 14 that they happen every four to six months. Id. She testified that she does not know what 15 causes the fainting, but she “tie[s] it to [her] migraines.” Id. Plaintiff also testified that 16 since 2013, she has been getting Botox injections for the headaches every ten to twelve 17 weeks, which help “take the edge off for a few weeks.” Id. at 50-51. Regarding her work 18 history, plaintiff testified that her last full time job was in June 2009, and then she had a 19 consistent part-time job until January 2011, when she was fired for having migraines and 20 calling out sick. Id. at 51. 21 The ALJ then asked plaintiff details of her work history, starting with her 22 employment with Fairway Enterprises as an administrative assistant for a physical therapy 23 office from August 2007 until June 2009. [AR 52.] She said she left the job “because of 24 difference of view with [her] boss and her threatening to fire [her] over [her] migraines.” 25 [AR 52.] At J.C. Penney, plaintiff worked as a shoe associate; then she was an 26 administrative assistant for Braden Partners LP, Pacific Pulmonary Services. [AR 52.] She 27 also worked at San Diego Digestive Services, where she did “check out and scheduling of 28 patients.” [AR 53.] She also worked early on in her career at Macy’s and subsequently at 8 ^ • i fi-rv-nrmn-MM a -k sr. 1 Money Mailer. The ALJ asked plaintiff why she wanted to be a pharmacy technician and 2 get out of the medical assistant role. [AR 55.] Plaintiff said she wanted to try something 3 new and was still entitled to military benefits to go to school. Id. However, plaintiff 4 explained that in pharmacy technician school, she was required to go to school four hours 5 a day, but she missed a lot of school due to her migraines. Id. 6 The ALJ also asked plaintiff about her “stress incontinence.” [AR 60.] Plaintiff 7 mentioned that she starting using pads for it in 2006, after the delivery of her third child. 8 [AR 61.] The ALJ asked plaintiff whether she received any medication for it, and plaintiff 9 said she did not. Id. Plaintiff testified during the hearing that: 10 It’s just a little confusing to me because I was - I’m 100 percent disabled through the VA, and when I originally did my application for Social Security benefits I was approved. We went to appeal the date of onset because they had changed my date of onset, and that’s when they came back saying that I was overall denied. So that’s just a little confusing to me that they would right off the bat say, ‘Yes, you’re disabled. We agree with the VA,’ and then come back and change their decision. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [AR 62.] The ALJ responded that “there’s several levels of review in these files. . . I don’t know what their rationale was.” [AR 62-63.] The ALJ noted that the details of plaintiffs reapplication were “not on [his] cover sheet” “[s]o somebody didn’t delve into that.” [AR 63.] The ALJ said that he will “take a look at that also.” Id. The ALJ said that he was going to order plaintiff to be examined by an internal medicine physician, which will include her orthopedic problem. [AR 63.] He also noted he was going to order plaintiff to get a psychiatric clinical exam. Id. 2. Vocational Expert's Testimony. Mr. Stock, a vocational expert, answered two hypothetical questions posed by the ALJ. First, Mr. Stock testified that plaintiff could not perform any of her past work in light of plaintiffs age, education, prior work experience, and her restriction “to a light range of work, no work on unprotected heights, no work on dangerous machinery, no ladders, occasional stairs and ramps, occasional stopping and bending, occasional lifting above 9 ^ • 1A-r.v.nn7nn-MM a -k sc 1 shoulder level, no sustained, intense interaction with the public, coworkers, or 2 supervisors.” [AR 57-58.] Mr. Stock opined that plaintiff could perform other work 3 including a mail clerk, laundry worker, or silver wrapper. [AR 58.] 4 The second hypothetical question posed by the ALJ included the same restrictions 5 as the first hypothetical, but also provided that the person would have to be restricted to a 6 sedentary range of work. [AR 58.] The vocational expert opined that plaintiff could 7 perform the following work with these restrictions: (1) a leaf tier; or (2) a press clippings 8 cuttings-paster.” Id. 9 IV. The ALJ’s Five Step Disability Analysis. 10 To qualify for disability benefits under the SSA, an applicant must show that he or 11 she is unable to engage in any substantial gainful activity because of a medically 12 determinable physical or mental impairment that has lasted or can be expected to last at 13 least 12 months. 42 U.S.C. § 423(d). The Social Security regulations establish a five-step 14 sequential evaluation for determining whether an applicant is disabled under this standard. 15 20 CFR § 404.1520(a); Batson v. Comm'r ofthe Social Security Admin., 359 F.3d at 1193- 16 1194. 17 At step one, the ALJ must determine whether the applicant is engaged in substantial 18 gainful activity. 20 CFR § 404.1520(a)(4)(I). “Substantial gainful activity is work activity 19 that is both substantial and gainful.” 20 CFR § 416.972. Here, the ALJ concluded plaintiff 20 had not engaged in substantial gainful activity since January 1,2011, the alleged onset date 21 22 of plaintiffs alleged impairments. [AR 23.] At step two, the ALJ must determine whether the applicant is suffering from a 23 “severe” impairment within the meaning of Social Security regulations. 20 CFR 24 § 404.1520(a)(4)(h). “An impairment or combination of impairments is not severe if it 25 does not significantly limit [the applicant's] physical or mental ability to do basic work 26 activities.” 20 CFR § 404.1521(a). For example, a slight abnormality or combination of 27 slight abnormalities that only have a minimal effect on the applicant's ability to perform 28 basic work activities will not be considered a “severe” impairment. Webb v. Barnhart, 433 10 7 • 1 fi-r.v-nn7nn-MM a -k sr 1 F.3d 683,686 (9th Cir. 2005). Examples of basic work activities include walking, standing, 2 sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking, 3 understanding, carrying out and remembering simple instructions, use of judgment, 4 responding appropriately to supervision, co-workers and usual work situations, and dealing 5 with changes in a routine work setting. 20 CFR § 404.152 l(b)(l)-(6). “If the ALJ finds 6 that the claimant lacks a medically severe impairment, the ALJ must find the claimant not 7 to be disabled.” Webb v. Barnhart, 433 F.3d at 686. 8 Here, at step two, the ALJ concluded that plaintiff has the following severe 9 impairments: history of a pars defect at L5-S1 of the lumbar spine; history of migraine 10 headaches; history of herniated disc thoracic spine; alcohol dependence; and 11 depression/mood disorder. [AR 23.] The ALJ also found that these impairments “cause 12 more than minimal limitations on the claimant’s ability to perform basic work activities.” 13 Id. 14 If there is a severe impairment, the ALJ must then determine at step three whether it 15 meets or equals one of the “Listing of Impairments” in the Social Security regulations. 16 20 CFR § 404.1520(a)(4)(iii). If the applicant's impairment meets or equals a Listing, he 17 or she must be found disabled. Id. In this case, the ALJ concluded at step three that 18 plaintiffs impairments or combination of impairments did not meet or equal a listed 19 impairment. [AR 23.] As a result, the ALJ concluded plaintiff was not disabled based on 20 medical considerations alone. Id. 21 If an impairment does not meet or equal a Listing, the ALJ must make a step four 22 determination of the claimant's residual functional capacity based on all impairments, 23 including impairments that are not severe. 20 CFR § 404.1520(e), § 404.1545(a)(2). 24 “Residual functional capacity” is “the most [an applicant] can still do despite [his or her] 25 limitations.” 20 CFR § 404.1545(a)(1). The ALJ must determine whether the applicant 26 retains the residual functional capacity to perform his or her past relevant work. 20 CFR 27 § 404.1520(a)(4)(iv). 28 li i • 1 fi-r.v-no7nn.MM a -k sir. 1 If the applicant cannot perform past relevant work, the ALJ-at step five-must 2 consider whether the applicant can perform any other work that exists in the national 3 economy. 20 CFR § 404.1520(a)(4)(v). While the applicant carries the burden of proving 4 eligibility at steps one through four, the burden at step five rests on the agency. Celaya v. 5 Halter, 332 F.3d 1177, 1180 (9th Cir. 2003). The ALJ must consider all of plaintiff’s 6 medically determinable impairments, including any pain that could “cause a limitation of 7 function” and any impairments that were not “severe,” and then determine plaintiffs 1 8 residual functional capacity to perform other work in the national economy. 20 CFR 9 §§ 404.1520; 404.1545; 416.929. “In determining [the claimant’s] residual functional 10 capacity, the ALJ must consider whether the aggregate of [the claimant’s] mental and 11 physical impairments may so incapacitate him that he is unable to perform available work.” 12 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997), as amended on reh’g (Sept. 13 17, 1997). As noted above, “residual functional capacity” is “the most [an applicant] can 14 still do despite [his or her] limitations.” 20 CFR § 404.1545(a)(1). 15 Here, the ALJ acknowledged at step four that plaintiff was unable to perform any 16 past relevant work. [AR 28.] Considering the totality of plaintiffs symptoms and pain, 17 the ALJ concluded at step five that plaintiff has the residual functional capacity to make a 18 “successful adjustment to other work that exists in significant numbers in the national • 19 economy.” [AR 29.] The ALJ cited the vocational expert’s testimony regarding 20 representative occupations for plaintiff including, for example, (1) mail clerk; (2) domestic 21 laundry worker; (3) silver wrapper; (4) leaf tier; (5) addresser; or (6) press clippings 22 cutter/paster. Id. In reaching this determination, the ALJ concluded that plaintiff is “not 23 disabled” under the framework of Medical-Vocational Rule 202.21. Id. 24 The ALJ considered the testimony of the vocational expert and plaintiffs age, 25 education, work experience, and residual functional capacity. [AR 28]. In addition, the 26 ALJ specifically considered plaintiffs testimony regarding “migraine headaches, 27 depression and PTSD since 2001, a unilateral pars defect, and stress incontinence.” [AR 28 25.] However, the ALJ reasoned that plaintiffs “statements concerning the intensity, 12 i ■ 1 fi.r.v.nn7nn-MM a -k sr 1 persistence and limiting effects of her symptoms” were “not fully credible.” Id. The ALJ 2 cited other objective medical evidence in the record, including plaintiffs disability findings 3 by the Department of Veterans Affairs, which he found “fail[ed] to provide strong support 4 for the claimant’s allegations of disabling symptoms and limitations.” Id. Regarding the 5 disability findings by the Department of Veterans Affairs, the ALJ noted as follows: 6 A decision by any agency about disability is based on that agency’s rules and is not binding on the Social Security Administration (20 C.F.R. 404.1504 and 416.904). Accordingly, although I considered the medical findings and related treatment within the VA records, I accord the disability ratings from the VA agency no weight. 7 8 9 10 [AR25.] 11 V. Discussion. 12 A. 13 In her Motion for Summary Judgment, plaintiff argues that the Court should reverse 14 the ALJ’s decision and award benefits, because the ALJ failed to articulate “persuasive, 15 specific and valid reasons” for rejecting the VA’s disability rating. [Doc. No. 16, at pp. 8- 16 9.] Defendant argues that the Court should affirm the ALJ’s decision because the ALJ 17 adequately considered the VA’s disability ratings and disability decisions by other agencies 18 are not binding upon the Commissioner. [Doc. No. 22-1, at pp. 2-8.] Substantial Evidence Standard. 19 It is well established in the Ninth Circuit that “an ALJ must ordinarily give great 20 weight to a VA determination of disability.” Valentine v. Commissioner Social Security 21 Administration, 574 F.3d 685, 695 (9th Cir. 2009) (quoting McCartey v. Massanari, 298 22 F.3d 1072, 1076 (9th Cir. 2003) (reversing a denial of benefits because the ALJ “failed to "23 consider the VA finding and did not mention it in his opinion”)). [Although a VA rating 24 of disability does not necessarily compel the SSA to reach an identical results, 20 CFR 25 § 404.1504, the ALJ must consider the VA’s finding in reaching his decision.” McCartey, 26 298 F.3d at 1076. In reaching this holding, the Ninth Circuit relied on “the marked 27 similarity between these two federal disability programs. Both programs serve the same 28 governmental purpose - providing benefits to those unable to work because of a serious 13 3 • 16-cv-nn7nn-MM a -k sr. 1 disability. Both programs evaluate a claimant’s ability to perform full-time work in the 2 national economy on a sustained and continuing basis; both focus on analyzing a 1 3 claimant’s functional limitations; and both require claimants to present extensive 4 medical documentation in support of their claimsId. (emphasis added). However, 5 because the criteria for determining disability are not identical, “the ALJ may give less 6 weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so 7 that are supported by the record.” Id. 8 In Valentine, the VA rated plaintiff 100 percent disabled while his case was pending 9 before the ALJ. 574 F.3d at 694. Notwithstanding the VA’s disability rating, the Ninth 10 Circuit court found that the ALJ provided “specific and legitimate reasons that [were] 11 supported by substantial evidence in the record” to reject the VA’s disability rating. Id. at 12 695. The Ninth Circuit court noted that the ALJ specifically stated in her opinion that “the 13 VA’s determination was not based on a comprehensive evaluation of the evidence available ,14 to [her].” Id. The court concluded that “the acquisition of new evidence or a properly 15 justified reevaluation of old evidence constitutes a persuasive, specific, and valid reason 16 . .. supported by the record.” Id. (internal citation omitted). 17 Similarly, in Davis v. Astrue, No. 10cvl732-BEN-NLS, 2011 WL 3740365, at *9 18 (S.D. Cal. July 29, 2011), the court affirmed the ALJ’s decision that the claimant could 19 perform sedentary work notwithstanding his VA disability rating of 100% because “the 20 ALJ independently addressed and assessed the evidentiary basis for the VA rating as 21 required.” (internal citation omitted). The court reasoned: 22 23 24 25 26 27 28 The ALJ explicitly mentioned the 100 percent disabled rating when issuing his decision and noted that disability ratings between the two agencies do not necessarily have the same meaning. The ALJ provided a specific example of John McCain, who is 100 percent disabled according to the VA, but has proven to be capable of performing work. Here, while Plaintiffs VA disability rating is 100 percent, according to the ALJ he is capable of performing sedentary work, which is the lowest exertional level of work as defined by the SSA. While the ALJ cannot reject the VA rating solely because the SSA and VA’s governing rules differ, the difference in rules was not the sole basis of the rejection. The 14 3 • i fi-r.v-no700-MM a-k sc 1 2 3 4 5 ALJ reviewed the evidentiary basis for the VA’s rating and addressed it three times in his order.... [T]he ALJ appropriately considered the VA rating and gave persuasive, specific and valid reasons for affording less weight to the VA’s determination of disability.” Id. (internal citation omitted). It is insufficient for an ALJ to impliedly reject a VA disability rating on the basis 6 that the VA and SSA criteria for determining disability are not identical. See, e.g., Courtney 7 v. Colvin, 2016 WL 3869844, at *2 -*3 (E.D. Cal. July 15,2016); Hamblin v. Astrue, 2009 8 WL 113858, at *2 (C.D. Cal. Jan. 14, 2009) (stating that “[t]he Ninth Circuit has made 9 clear what is required to discount a VA rating - silently, or impliedly, rejecting it does not 10 11 meet this standard”). In Courtney v. Colvin, 2016 WL 3869844, at *1 (E.D. Cal. July 15, 2016), the court 12 reversed the Social Security Commissioner’s decision and remanded the case for further 13 administrative proceedings. Plaintiffs “sole contention [was] that the ALJ failed to give 14 sufficient reasons for rejecting a determination by the Department of Veterans Affairs 15 (“VA”) that plaintiff is disabled.” Id. The ALJ noted that the “VA and [SSA] criteria for 16 determining disability are not identical,” and that he may give “less weight to a VA 17 disability rating,” so long as he provides “persuasive, specific, valid reasons for doing so 18 that are supported by the record.” Id. at *2. The ALJ claimed that he “considered and 19 included most of the identified impairments found in the rating decision and [had] 20 considered such impairments in formulating [plaintiffs] maximum residual functional 21 capacity.” Id. However, the District Court found “[t]he ALJ’s discussion of the VA 22 disability rating was insufficient” because although “the ALJ purported to have read and 23 considered the VA’s disability determination, his RFC assessment implicitly rejected the 24 VA’s finding that plaintiffs combined mental and physical impairments precluded 25 employment.” Id. The District Court further explained “the error was not harmless because 26 the ALJ’s rejection of the VA disability rating, which is entitled to ‘great weight’ under 27 >28 15 ^ • 1 fi-rv-ornno-MM a -k sc 1 McCartey, was not inconsequential to the ultimate nondisability determination.” Id. 2 (internal citation omitted). 3 Here, the ALJ purports to have “considered the medical findings and related 4 treatment within the VA records,” but the ALJ “accordfed] the disability ratings from the 5 VA agency no weight.” [AR 25.] The ALJ, however, acknowledged in his written decision 6 that plaintiff The ALJ implicitly rejected the VA’s finding of plaintiffs service-connected 7 disability noting that “[a] decision by any agency about disability is based on that agency’s 8 rules and is not binding on the Social Security Administration.” Id. The ALJ erred in giving * 9 the disability ratings from the VA “no weight” because Ninth Circuit precedent requires 10 the ALJ to give “great weight to a VA determination of disability.” McCartey, 298, F.3d 11 at 1075. While the ALJ could have given “less weight” to the VA disability ratings if he 12 had given “persuasive, specific, valid reasons for doing so that are supported by the 13 record,” the ALJ failed to provide any reasons for rejecting the VA’s disability ratings of 14 plaintiff. Id. 15 Defendant asserts in the Cross-Motion for Summary Judgment and Opposition to 16 Plaintiffs Motion for Summary Judgment that “the VA only considered evidence up to 17 April 2013 and June 2013, respectively, in issuing its migraine and cystitis ratings.” [Doc. 18 No. 20-1, at p. 9.] Defendant cites Valentine, supra, in support of its contention that “the 19 VA did not consider all the evidence of record before the ALJ, which supported his decision 20 to discount the VA ratings and find Plaintiff was not disabled under the Social Security 21 Act.” Id. However, this reason was not articulated by the ALJ in his decision. While a 22 reviewing court may draw specific and legitimate inferences from an ALJ’s decision, a 23 court cannot speculate on the ALJ’s reasoning or make “post hoc rationalizations that 24 attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm V of Soc. 25 Sec. Admin., 554 F.3d 1219, 1225-1226 (9th Cir. 2009) (stating that “[l]ong-standing 26 principles of administrative law require us to review the ALJ’s decision based on the 27 reasoning and factual findings offered by the ALJ - not post hac rationalizations that 28 attempt to intuit what the adjudicator may have been thinking”); Stout v. Comm V, Social 16 i • 16-rv-nn7nn-MM a -Ksr 1 Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating that the court is “constrained to 2 review the reasons the ALJ asserts” for the denial of benefits and “cannot affirm the 3 decision of an agency on a ground that the agency did not invoke in making its decision”) 4 (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)); Pinto v. Massanari, 249 5 F.3d 840, 847 (9th Cir. 2001). Accordingly, the Commissioner’s post hoc rationalizations 6 do not remedy the ALJ’s legal error in failing to articulate persuasive, specific, valid 7 reasons for rejecting the VA disability ratings. 8 Under the circumstances presented, it was not enough for the ALJ to give “no 9 weight” to the VA’s disability determinations. These detailed findings and conclusions 10 about plaintiffs medical conditions were not dispositive, as the ALJ stated in this decision, 11 but they were entitled to significant weight. 12 VI. Conclusion. -13 A decision to remand for further investigation and development of the record is 14 appropriate when outstanding issues remain that must be resolved before a determination 15 of disability can be made. Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 16 1106-1107 (9th Cir. 2014); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) 17 (“the proper course, except in rare circumstances, is to remand to the agency for additional 18 investigation or explanation”) (internal citation omitted). Based on the foregoing, this 19 Court concludes that a remand for further administrative proceedings is the proper remedy. 20 While a VA disability rating ordinarily is entitled to great weight, it “does not necessarily 21 compel the SSA to reach an identical result,” and it is not clear that social security disability 22 benefits must be awarded in this case. Hiler v. Astrue, 687 F.3d 1208,1211-1212 (9th Cir. 23 2012) (holding that a remand for further administrative proceedings is appropriate where ,24 the ALJ deviated from the claimant’s VA disability ratings and gave no reason for doing 25 so). On remand, the ALJ shall develop the record as needed and issue a new decision 26 containing appropriate findings consistent with this Report and Recommendation. 27 III 28 III 17 3 • 16-CV-00700-MMA-KSC 1 2 3 Based on the foregoing, IT IS HEREBY RECOMMENDED THAT THE DISTRICT COURT: 1. GRANT plaintiffs Motion for Summary Judgment to the extent it seeks a remand for further administrative proceedings [Doc. No. 16]; . 4 5 2. DENY defendant’s Cross-Motion for Summary Judgment [Doc. No. 19]; 6 3. REMAND the matter to the SSA for further consideration, investigation, and 7 development of the record consistent with this Report and Recommendation; 8 and, 9 10 11 4. ENTER a judgment in plaintiffs favor remanding this matter for further administrative proceedings. This Report and Recommendation of the undersigned Magistrate Judge is submitted 12 to the United States District Judge assigned to this case, pursuant to the provisions of 28 13 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(d). Within fourteen (14) days after being 14 served with a copy of this Report and Recommendation, “any party may serve and file 15 written objections.” 28 U.S.C. § 636(b)(l)(B)&(C). The document should be captioned 16 “Objections to Report and Recommendation.” The parties are advised that failure to file 17 objections within this specific time may waive the right to raise those objections on appeal 18 of the Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir.1991). 19 IT IS SO ORDERED. 20 21 Dated: May/£r 2017 22 23 Sjf Hon. Karen S. Crawford United States Magistrate Judge 24 25 26 27 28 18 i • 1 fi-r.v-O07nn-MM a -k sc

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