Pittsenbarger v. Commissioner Social Security Administration
Filing
18
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter pursuant to sentence four of 42 U.S.C. § 405(g). IT IS SO ORDERED. Signed on 10/19/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AARON W. P.,1
Plaintiff,
6:17-cv-01464-BR
OPINION AND ORDER
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.
KATHERINE L. EITENMILLER
Harder, Wells, Baron & Manning, P.C.
474 Willamette St.
Eugene, OR 97401
(541) 686-1969
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties. The same
designation will be used to identify nongovernmental parties'
family members if named in this case.
1 - OPINION AND ORDER
(503) 727-1003
MICHAEL W. PILE
Acting Regional Chief Counsel
SARAH MOUM
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2936
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Aaron W. P. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied Plaintiff's
application for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act.
This Court has jurisdiction to
review the Commissioner's final decision pursuant to 42 U.S.C.
§ 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner in this matter.
ADMINISTRATIVE HISTORY
Plaintiff protectively filed his initial application for DIB
benefits on June 21, 2013.
Tr. 378.2
Plaintiff alleged a
disability onset date of April 11, 2013.
Plaintiff’s application
was denied initially and on reconsideration.
2
An Administrative
Citations to the official transcript of record filed by
the Commissioner on March 8, 2018, are referred to as "Tr."
2 - OPINION AND ORDER
Law Judge (ALJ) held a hearing on August 20, 2015.
Tr. 411-64.
Plaintiff and a vocational expert (VE) testified.
Plaintiff was
represented by an attorney at the hearing.
On October 5, 2015, the ALJ issued an opinion in which he
found Plaintiff was not disabled and, therefore, is not entitled
to benefits.
Tr. 378-90.
On August 10, 2016, Plaintiff requested review of the
hearing decision by the Appeals Council.3
On July 18, 2017, the Appeals Council denied Plaintiff’s
request to review the ALJ’s decision, and the ALJ’s decision
became the final decision of the Commissioner.
Tr. 1-4.
See
Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On September 18, 2017, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born on April 6, 1963, and was 50 years old on
his alleged disability onset date.
General Education Diploma (GED).
3
Tr. 389.
Tr. 417.
Plaintiff has a
The ALJ found
Unbeknownst to Plaintiff, his previous attorney did not
file a request for review of the hearing decision within 60 days
of the decision. This fact was not discovered until Plaintiff
obtained new counsel. The Commissioner construed correspondence
from new counsel dated August 10, 2016, as a request for review
and deemed it timely under the circumstances.
3 - OPINION AND ORDER
Plaintiff is unable to perform any past relevant work as a
carpenter.
Tr. 388.
Plaintiff alleges disability due to PTSD, hypertension,
osteoarthritis, anxiety, depression, panic attacks, right knee
impairment, bilateral-shoulder impairment, and left-eye
impairment.
Tr. 465-66.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 380-88.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden a claimant must demonstrate his
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
4 - OPINION AND ORDER
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
5 - OPINION AND ORDER
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-
sioner determines the claimant is engaged in substantial
gainful activity (SGA).
20 C.F.R. § 404.1520(a)(4)(I).
See also
Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
6 - OPINION AND ORDER
“A
‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
7 - OPINION AND ORDER
20 C.F.R. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since April 11, 2013, his alleged
date of disability onset.
Tr. 380.
At Step Two the ALJ found Plaintiff has the severe
impairments of PTSD, depression, obesity, bilateral rotary-cuff
impingement, and right-knee osteoarthritis.
Tr. 380.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 381.
The ALJ found Plaintiff has the RFC to
perform light exertion work with the following limitations:
lift, carry, push, and pull 20 pounds occasionally and 10 pounds
frequently; stand, walk, and sit about six hours in an eight-hour
workday; reach overhead bilaterally occasionally; climb ramps and
stairs frequently; never climb ladders, ropes, and scaffolds;
stoop, kneel, crouch, and crawl occasionally; and not have any
exposure to unprotected heights or moving mechanical parts.
The
ALJ also concluded Plaintiff can perform simple, routine tasks
with brief and occasional interactions with the public; can work
outdoors or in large spaces such as loading docks or large
warehouses or buildings; and is unable to work in small, enclosed
spaces.
Tr. 383-84.
At Step Four the ALJ concluded Plaintiff is not able to
8 - OPINION AND ORDER
perform his past relevant work.
Tr. 388.
At Step Five the ALJ found Plaintiff could perform other
work in the national economy in light of Plaintiff’s age,
education, work experience, and RFC.
Tr. 389-90.
The ALJ cited
three examples of such work that the VE identified:
“laminating-
machine offbearer,” assembly-machine tender, and bakery worker.
Tr. 389-90.
Thus, the ALJ concluded Plaintiff is not disabled
and, therefore, is not entitled to benefits.
Tr. 390.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
provide clear and convincing reasons for discounting Plaintiff’s
symptom testimony; (2) failed to provide substantial evidence to
reject the medical opinions of John Gardin, Ph.D., and Pamela
Roman, Ph.D.; and (3) gave less than “great weight” to the
Veteran’s Administration (VA) determination that Plaintiff is
disabled.
I.
The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ erred when he failed to provide
clear and convincing reasons for discounting Plaintiff’s symptom
testimony.
A.
Standards
The ALJ engages in a two-step analysis to determine
whether a claimant's testimony regarding subjective pain or
9 - OPINION AND ORDER
symptoms is credible.
“First, the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’”
Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)).
The claimant
is not required to show that his “impairment could reasonably be
expected to cause the severity of the symptom [he] has alleged;
[he] need only show that it could reasonably have caused some
degree of the symptom.”
Garrison, 759 F.3d at 1014 (quoting
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
A
claimant is not required to produce “objective medical evidence
of the pain or fatigue itself, or the severity thereof.”
Id.
If the claimant satisfies the first step of this
analysis and there is not any affirmative evidence of
malingering, “the ALJ can reject the claimant's testimony about
the severity of [his] symptoms only by offering specific, clear
and convincing reasons for doing so.”
Garrison, 759 F.3d at
1014-15. See also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883
(9th Cir. 2006)(“[U]nless an ALJ makes a finding of malingering
based on affirmative evidence thereof, he or she may only find an
applicant not credible by making specific findings as to
credibility and stating clear and convincing reasons for each.”).
General assertions that the claimant's testimony is not credible
10 - OPINION AND ORDER
are insufficient.
2007).
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.
The ALJ must identify "what testimony is not credible and
what evidence undermines the claimant's complaints."
Id.
(quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
B.
Analysis
The ALJ discounted Plaintiff’s testimony regarding his
symptoms on the grounds that Plaintiff’s testimony was
“considerably inconsistent” with statements to the Social
Security Administration and to his treating or examining
physicians.
Tr. 384.
Plaintiff testified in April 2013 that he had two PTSDrelated “triggering incidents” that prevented him from returning
to his employment.
Tr. 423-425.
The first was an altercation
during which Plaintiff wanted to, but did not, physically assault
a co-worker.
The second incident involved an altercation with
another passenger on a bus.
Plaintiff testified after these
incidents he was unable to return to work because of his concerns
about his PTSD and his ability to control his anger without
harming others.
Plaintiff testified his employer terminated him
because he wouldn’t return to work.
Tr. 425.
Plaintiff also
testified he applied for counseling through the VA regarding this
issue.
Tr. 426-27.
The ALJ, however, noted Plaintiff reported in May 2013
to VA medical staff that he was retiring “because of his
11 - OPINION AND ORDER
shoulders.”
Tr. 664-65.
The ALJ also noted Plaintiff declined
to complete PTSD screening questions in September 2013 as part of
preventative health and counseling with the VA, and a nurse
practitioner noted Plaintiff did not have any “mental health
condition requiring further intervention.”
Tr. 658, 660.
The
ALJ further noted in October 2013 Plaintiff told Dr. Roman, an
examining psychologist, that he was fired for arriving at work
with a hangover.
Tr. 712.
In December 2013 Plaintiff made the
same statement regarding his termination to Dr. Gardin, the VA
psychologist evaluator.
Tr. 775.
Although Plaintiff contends these inconsistencies are
unrelated directly to his symptom testimony, Plaintiff also made
inconsistent statements about the reason he was no longer able to
work while he was reporting his symptoms.
Evidence of
inconsistent reporting supports a finding that Plaintiff’s
allegations are not fully credible.
See Burch v. Barnhart, 400
F.3d 676, 680 (9th Cir. 2005).
Plaintiff also told Dr. Gardin in December 2013 that he
was missing work two or three days a month due to panic attacks.
Tr. 775.
The ALJ, however, discounted Plaintiff’s allegation of
such attacks and noted Plaintiff did not mention panic attacks
when he saw Dr. Roman two months earlier.
Tr. 385, 711-17.
The
ALJ also noted Plaintiff did not report panic or anxiety attacks
during an October 2014 mental-health assessment nor do
12 - OPINION AND ORDER
Plaintiff’s medical records support such allegations.
Tr. 385,
950-53.
On this record the Court concludes the ALJ did not err
when he discounted Plaintiff’s symptom testimony and found it was
not fully credible because the ALJ provided clear and convincing
reasons supported by substantial evidence in the record for doing
so.
II.
The ALJ properly evaluated the medical opinions of the
examining psychologists.
Plaintiff contends the ALJ erred when he discounted the
medical opinions of Drs. Gardin and Roman, both examining
psychologists.
A.
Standards
“In disability benefits cases . . . physicians may
render medical, clinical opinions, or they may render opinions on
the ultimate issue of disability — the claimant's ability to
perform work.”
2014).
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
“In conjunction with the relevant regulations, [courts]
have . . . developed standards that guide [the] analysis of an
ALJ's weighing of medical evidence.”
Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Specifically, the
court must “distinguish among the opinions of three types of
physicians:
(1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the claimant
(examining physicians); and (3) those who neither examine nor
13 - OPINION AND ORDER
treat the claimant (nonexamining physicians).”
F.3d at 1012.
Garrison, 759
“As a general rule, more weight should be given to
the opinion of a treating source than to the opinion of doctors
who do not treat the claimant.”
Id.
Although the opinion of a
treating physician is entitled to greater weight than that of an
examining physician, the opinion of an examining physician is
entitled to greater weight than that of a nonexamining physician.
Ryan, 528 F.3d at 1198.
“The weight afforded a nonexamining
physician's testimony depends ‘on the degree to which [he]
provide[s] supporting explanations for [his] opinions.’”
Id.
(quoting 20 C.F.R. § 404.1527(d)(3)).
“If a treating or examining doctor's opinion is contradicted
by another doctor's opinion, an ALJ may only reject it by
providing specific and legitimate reasons that are supported by
substantial evidence.”
Id.
Even when contradicted, a treating
or examining physician's opinion is still owed deference and will
often be “entitled to the greatest weight . . . even if it does
not meet the test for controlling weight.”
F.3d 625, 633 (9th Cir. 2007).
Orn v. Astrue, 495
An ALJ can satisfy the
“substantial evidence” requirement by “setting out a detailed and
thorough summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making findings.”
Reddick, 157 F.3d at 725.
conclusions.
“The ALJ must do more than state
He must set forth his own interpretations and
14 - OPINION AND ORDER
explain why they, rather than the doctors', are correct.”
Id.
(citation omitted).
B.
Analysis
Plaintiff contends the ALJ failed to provide specific
and legitimate reasons for rejecting the medical opinions of
Drs. Gardin and Roman.
1.
Dr. Gardin
In May 2013 Plaintiff filed a claim for increased
disability benefits with the VA.
Tr. 611.
Plaintiff to Dr. Gardin for evaluation.
The VA referred
Tr. 772-79.
Dr. Gardin stated in his December 2013 report that
Plaintiff meets the diagnostic criteria for major depressive
disorder and continues to meet the criteria for PTSD.
Tr. 779.
Dr. Gardin noted:
[Plaintiff’s] panic attacks have significantly
increased, both in frequency and intensity, since
his last examination. These panic attacks are
directly related to his identified trauma so are
contained within his diagnosis of PTSD.
[Plaintiff’s] panic attacks are in effect
debilitating, preventing him from leaving home.
. . . . [H]is panic attacks specifically, render
[him] unable to seek or maintain substantially
gainful employment at this time.”
Tr. 779.
Based in part on Dr. Gardin’s examination, the VA
revised its previous rating decision and determined Plaintiff was
100% disabled based on his PTSD and major depressive disorder
15 - OPINION AND ORDER
(MDD).
Tr. 611-15.
The ALJ discounted Dr. Gardin’s opinion on the grounds
that it was inconsistent with the medical records; Dr. Gardin
only had a single contact with Plaintiff; and Plaintiff’s own
reporting of his symptoms was not entirely credible.
Tr. 385-86.
In addition, Dr. Gardin found Plaintiff’s panic attacks prevented
Plaintiff from leaving his home, but the ALJ noted Plaintiff
engaged in group therapy and physical therapy despite his claim
that he was unable to be in enclosed spaces or to leave his home
and the therapy records do not indicate any such symptoms or
limitations.
Tr. 385-86.
The medical records reflect Plaintiff has some acute
anxiety with certain exposures, but a PTSD examination in 2010
reflected Plaintiff “does not have panic attacks that come on
with no warning.”
Tr. 385.
The ALJ also pointed out that
Plaintiff did not report panic or anxiety attacks during an
October 2014 mental-health examination nor were panic attacks
raised as an issue in Plaintiff’s treatment records.
950-54.
Tr. 385,
An ALJ may afford less weight to a medical opinion that
is inconsistent with the overall medical record.
See Tommasetti
v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
On this record the Court concludes the ALJ did not err
when he discounted Dr. Gardin’s opinion because the ALJ provided
specific and legitimate reasons supported by substantial evidence
16 - OPINION AND ORDER
in the record for doing so.
2.
Dr. Roman
In October 2013 Dr. Roman did a psychodiagnostic
examination of Plaintiff.
Tr. 711-17.
Dr. Roman concluded
Plaintiff meets the criteria for PTSD and depression.
Although
Dr. Roman noted Plaintiff scored in the low-average range for
attention and concentration, she also indicated it was likely
that he can understand and remember complicated instructions.
Tr. 716.
Dr. Roman concluded:
“At this time it would be
difficult for [Plaintiff] to maintain attention and concentration
throughout a normal work week and work day without decompensating
both physically and emotionally.”
Tr. 716-17.
Dr. Roman also
concluded Plaintiff is “reactive around authority figures” and
“if he felt threatened would be at risk for violence.”
Tr. 716-
17.
The ALJ gave “limited weight” to Dr. Roman’s opinion on
the ground that she also relied “too heavily” on Plaintiff’s own
reporting of his symptoms and that she was not qualified to
“comment on the impact of physical impairments.”
Tr. 387.
Plaintiff concedes the ALJ may discount Dr. Roman’s
opinion to the extent that it is based on Plaintiff’s selfreported physical symptoms, but Plaintiff contends this does not
apply to Dr. Roman’s opinion regarding Plaintiff’s mental illness
and his “reactive” nature around authority figures and that he is
17 - OPINION AND ORDER
disabled due to those limitations.
Pl.’s Br. at 13-14 (#14).
Defendant, in response, contends Dr. Roman did not
conclude Plaintiff would have anger outbursts or make threats of
violence and did not assess any specific limitation regarding
Plaintiff’s ability to interact with authority figures.
Although Plaintiff noted in his Function Report that he
did not have any problems getting along with family, friends,
neighbors, and others (Tr. 584), Plaintiff testified at the
hearing that the reason he did not return to work after the
“triggering” incidents was because he was concerned about his
ability “to control himself” and afraid he was “going to hurt
somebody.”
Tr. 424-25, 439.
Dr. Roman noted in her report that
“[Plaintiff] has been violent primarily in self-defense but if he
felt threatened would be at risk for violence.”
Tr. 717.
At the
hearing the VE testified there would be “very little tolerance”
for a person subject to outbursts of anger on the job, including
threats of violence, and “if it were to happen even twice a
month, the person would become unemployable very rapidly.”
Tr.
462-63.
Although the ALJ included in his evaluation of
Plaintiff’s RFC a limitation for “brief and occasional
interactions with the public” (Tr. 384), Plaintiff fails to show
how the ALJ’s decision is inconsistent with Dr. Roman’s
assessment.
18 - OPINION AND ORDER
On this record the Court concludes the ALJ did not err
when he discounted Dr. Roman’s opinion because the ALJ provided
specific and legitimate reasons supported by substantial evidence
in the record for doing so, and, in any event, Plaintiff has
failed to show any harmful error as a result of the ALJ’s
decision.
III. The ALJ did not err when he did not give “great weight” to
the VA’s disability determination.
Plaintiff contends the ALJ failed to give “great weight” to
the VA’s determination that Plaintiff is disabled as required by
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).
The Commissioner, however, contends the ALJ’s evaluation of
the VA’s disability determination is supported by substantial
evidence in the record.
A.
Standard
A Social Security disability determination is similar
to a VA disability determination in that both are made by federal
agencies that provide benefits to those who cannot work due to
disability.
McCartey, 298 F.3d at 1076.
“[A]lthough a VA rating
of disability does not necessarily compel the SSA to reach an
identical result, 20 C.F.R. § 404.1504, the ALJ must consider the
VA's finding in reaching his decision.”
Id.
An ALJ ordinarily
must give “great weight” to a VA determination of disability.
An
ALJ, however, is not compelled to reach an identical result.
Id.
See also 20 C.F.R. § 404.1504 (“A decision by any . . . other
19 - OPINION AND ORDER
governmental agency about whether you are disabled . . . is based
on its rules and is not our decision. . . .
We must make a . . .
determination based on social security law.
Therefore, a
determination made by another agency . . . is not binding on
us.”).
If the ALJ gives less than “great weight” to a VA
disability determination, however, he must provide “persuasive,
specific, valid reasons for doing so that are supported by the
record.”
B.
McCartey, 298 F.3d at 1076.
Analysis
Plaintiff was previously determined to be 70% disabled
for service-connected PTSD.
Tr. 613.
The VA determined in
December 2013 that Plaintiff was 100% disabled as of May 2013 due
to service-connected PTSD with secondary major depressive
disorder.
Tr. 611-15.
Plaintiff contends there is not any
evidence in the current record by an examining or treating
physician that contradicts the VA’s conclusion regarding
Plaintiff’s disability.
Although the ALJ cited McCartey in his opinion, he gave
“little weight” to the VA's disability decision because it “was
based on a one-time contact” by Dr. Gardin with Plaintiff, was
merely “a list of symptoms and functional limitations,” and “is
simply not corroborated by the treatment record.”
ALJ stated:
Tr. 386.
The
“The VA criteria do not assess what the [Plaintiff]
is capable of despite his severe impairments . . . and there is
20 - OPINION AND ORDER
no direct correlation between the assessed percentage and
functional limitations. . . .
[T]he medical record does not
establish functional limitations amounting to an inability to
sustain full time work activity within the parameters of the
residual functional capacity.”
Tr. 386.
For example, the VA
determination indicated Plaintiff experienced panic attacks more
than once a week.
Tr.
613.
The ALJ, however, noted Plaintiff
engaged in group therapy and physical therapy despite his claim
that he was unable to be in enclosed spaces or to leave his home,
and the therapy records do not indicate any such symptoms or
limitations.
Tr. 386.
The VA also determined Plaintiff had
“intermittent inability to perform maintenance of minimal
personal hygiene.”
Tr.
613.
The ALJ, however, noted there was
not any evidence in the record to support the VA’s finding, and,
in fact, Dr. Gardin noted Plaintiff had “good hygiene.”
Tr. 386,
778.
On this record the Court concludes the ALJ provided
“persuasive, specific, [and] valid reasons” for not giving “great
weight” to the VA’s disability determination.
Accordingly, the
Court concludes the ALJ did not err when he did not give “great
weight” to the VA’s disability determination.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
21 - OPINION AND ORDER
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 19th day of October, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
22 - OPINION AND ORDER
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