Daniel Genewoo Ee v. Carolyn W. Colvin, No. 2:2016cv05894 - Document 22 (C.D. Cal. 2017)
Court Description: 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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Daniel Genewoo Ee v. Carolyn W. Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DANIEL GENEWOO EE, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security ) Administration, ) ) Defendant. ) ____________________________________) NO. CV 16-5894-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed this action on August 8, 2016, seeking review of 26 the Commissioner’s denial of benefits. 27 Magistrate Judge on September 21, 2016. 28 summary judgment on December 15, 2016. The parties consented to a Plaintiff filed a motion for Defendant filed a motion for Dockets.Justia.com 1 summary judgment on January 17, 2017. The Court has taken both 2 motions under submission without oral argument. 3 “Order,” filed August 15, 2016. See L.R. 7-15; 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff, a veteran who served as a tank gunner in Iraq, asserts 8 disability since April 24, 2008 (the date his military service ended) 9 due to lower back problems and post traumatic stress disorder (“PTSD”) 10 (Administrative Record (“A.R.”) 56-57, 156, 179, 203). An 11 Administrative Law Judge (“ALJ”) examined the medical record and heard 12 testimony from Plaintiff, Plaintiff’s wife, a medical expert 13 (psychiatrist), and a vocational expert (A.R. 16-32, 37-91, 331-2125). 14 15 The ALJ found that Plaintiff suffers from the following severe 16 impairments: PTSD, cognitive disorder, polysubstance abuse in 17 remission, psychosis (not otherwise specified, likely substance 18 induced), obesity, and a lumbar spine disorder (A.R. 19). 19 determined that Plaintiff has the residual functional capacity to 20 perform a limited range of medium work (A.R. 21-30).1 The ALJ The ALJ found 21 22 1 23 [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...) 24 25 26 27 28 Specifically, the ALJ found: 2 1 that a person with this capacity could work as a hand packager, 2 hospital cleaner, or industrial cleaner –- jobs existing in 3 significant numbers in the national economy (A.R. 31-32 (adopting 4 vocational expert testimony at A.R. 87-89)). 5 denied review (A.R. 1-3). The Appeals Council 6 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. section 405(g), this Court reviews the 10 Administration’s decision to determine if: (1) the Administration’s 11 findings are supported by substantial evidence; and (2) the 12 Administration used correct legal standards. 13 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 14 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 15 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 16 Substantial evidence is “such relevant evidence as a reasonable mind 17 might accept as adequate to support a conclusion.” 18 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 19 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Richardson v. 20 21 If the evidence can support either outcome, the court may 22 not substitute its judgment for that of the ALJ. 23 Commissioner’s decision cannot be affirmed simply by 24 isolating a specific quantum of supporting evidence. 25 Rather, a court must consider the record as a whole, 26 weighing both evidence that supports and evidence that 27 1 28 (...continued) (A.R. 21, 25-30). 3 But the 1 detracts from the [administrative] conclusion. 2 3 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 4 quotations omitted). 5 6 DISCUSSION 7 8 Plaintiff asserts, inter alia, that the ALJ materially erred in 9 connection with the ALJ’s consideration of disability ratings by the 10 Department of Veterans Affairs (“VA”). The Court agrees. 11 Remand for further administrative proceedings is appropriate. 12 13 I. Plaintiff’s Post-Military Schooling and Work Attempt 14 15 Plaintiff has been attending school during most of the time 16 Plaintiff claims to have been disabled (A.R. 57-58). During 2009-14, 17 Plaintiff received a bachelor’s degree in philosophy from Chapman 18 University and a master’s degree in social work from the University of 19 Southern California (A.R. 50-51, 57-58).2 At the administrative 20 21 22 23 24 25 26 27 28 2 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...) 4 1 hearing, Plaintiff said he had been accepted into chiropractic school 2 for the fall of 2016 (A.R. 67-68).3 3 4 It appears that Plaintiff’s only full-time work attempt since his 5 military discharge was a five-month trial after he finished his 6 master’s degree. 7 Administration as a claims representative in training from September 8 2014 through January 20, 2015 (A.R. 51-52, 203-04). 9 fired after a hospitalization earlier that month for psychosis 10 Plaintiff worked for the Social Security Plaintiff was following the use of methamphetamine (discussed below) (A.R. 52). 11 12 II. Plaintiff’s PTSD, Admitted Drug Use and Subsequent Treatment 13 14 Plaintiff reportedly was diagnosed with PTSD in 2011 (A.R. 533; 15 see also 1653-61 (“Social Work Mental Health Assessment/Evaluation” 16 dated in June of 2011 diagnosing chronic PTSD)). 17 records suggest a PTSD onset long prior to 2011, however. 18 psychiatry consult dated in June of 2008 stated that Plaintiff had 19 anxiety disorder (not otherwise specified) and indicated a need to 20 “r/o” (rule out) PTSD (A.R. 973-76; see also A.R. 961-69 (traumatic 21 brain injury screening from same time frame noted “suspected/probable” 22 PTSD); A.R. 1900-01 (positive PTSD screening test in June of 2008)). 23 A “Mental Health Initial Assessment-Consult” in January of 2009 Some VA treatment A 24 25 (...continued) would be graduating from Chapman University soon (A.R. 530). 26 3 27 28 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). 5 1 diagnosed PTSD, “MDD” (major depressive disorder), substance induced 2 psychosis (resolving), and polysubstance dependence (methamphetamine, 3 THC, and alcohol) (A.R. 931-37; see also A.R. 1666-74 (psychiatric 4 evaluations dated in March and April of 2010 diagnosed PTSD and 5 psychosis (not otherwise specified))). 6 to June 2008 reflect service-connected disability based on PTSD (A.R. 7 837-979; see generally A.R. 1653-1902 (Progress Notes for VA mental 8 health treatment from 2008 through 2011); but see A.R. 551-54 9 (negative PTSD screening test dated in August of 2012)). “Consult Requests” dating back There are 10 also progress notes for PTSD group therapy from May 2011 through July 11 2011, and from February 2013 through September 2013 (A.R. 1642-49, 12 1652-53, 1661-64).4 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 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...) 6 1 At the hearing before the ALJ, Plaintiff admitted having some 2 issues with alcohol and also admitted to having used methamphetamine 3 twice (A.R. 64). 4 alcohol “on the weekend and stuff” between 2008 and 2015 (A.R. 65). 5 Plaintiff claimed that he had stopped drinking completely when he 6 began his job with the Social Security Administration (A.R. 65). Plaintiff testified that he “occasionally” drank 7 8 Plaintiff said he first used methamphetamine in 2008 to self- 9 medicate when he got out of the military, but used “a little too much” 10 and ending up in a hospital psychiatric ward (A.R. 64-65).5 11 /// 12 /// 13 /// 14 /// Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (...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). 5 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)). 7 1 said he did not use methamphetamine again until 2015 (A.R. 64, 66).6 2 Plaintiff then sought treatment from the VA (A.R. 64).7 3 /// 4 /// 5 /// 6 /// 7 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). 7 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). 8 1 Plaintiff said he was in an inpatient treatment program for 2 combat trauma PTSD and substance abuse from March or April of 2015 3 until November of 2015 (A.R. 66-67).8 4 the treatment went “pretty well” (A.R. 66-67; see also A.R. 1941-42, 5 1958-63, 1967-72 (VA “Discharge Summary” and related notes from 6 inpatient stay indicating that Plaintiff successfully completed the 7 program and was discharged with a final diagnosis of amphetamine 8 dependence and PTSD)). 9 treatment at the time of the hearing before the ALJ (A.R. 67; see also 10 /// 12 /// 13 /// 14 Plaintiff said he was seeking outpatient A.R. 1959). 11 Plaintiff indicated he thought /// 15 8 16 17 18 19 20 21 22 23 24 25 26 27 28 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). 9 1 III. The VA Disability Rating and the ALJ’s Consideration Thereof 2 3 The VA records contain “Consult Requests” for Plaintiff’s service 4 connected/related disability ratings from June 2008 through July 2008, 5 December 2008 through January 2009, March 2010, December 2013, and 6 March 2015 through August 2015. 7 including related medical test results and observations).9 8 overall disability ratings ranged from 80 to 100 percent, with a 100 9 percent disability rating for PTSD and lesser ratings for other See A.R. 837-979 (“Consult Requests” The 10 conditions (i.e., tinnitus, sinusitis, and limited flexion of the 11 knee) (A.R. 837-979). 12 13 On September 8, 2015, the VA issued a “Rating Decision” and 14 awarded increased disability benefits (A.R. 179-85; see also A.R. 172- 15 78 (accompanying letter); A.R. 249-50 (letter summarizing Plaintiff’s 16 VA benefits)). 17 disability rating of 90 percent based on chronic sinusitis, tinnitus, 18 allergic rhinitis, PTSD with insomnia, alcohol dependence, and 19 amphetamine abuse (A.R. 173-74, 179-85). 20 Plaintiff’s “entitlement to individual unemployability” (at a 100 The VA found Plaintiff has an overall or combined The VA recognized 21 22 23 24 25 26 27 28 9 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). 10 1 percent rate) effective October 1, 2015, because Plaintiff was “unable 2 to secure or follow a substantially gainful occupation as a result of 3 service-connected disabilities” (A.R. 174, 181, 249). 4 the objective and subjective evidence assertedly supporting its 5 determination. The VA detailed See A.R. 180-84. 6 7 At the administrative hearing, Plaintiff mentioned that the VA 8 had rated him as “unemployable” (A.R. 67). The ALJ responded that the 9 VA’s determination of unemployability is “different” than the Social 10 Security Administration’s determination (A.R. 67). In the ensuing 11 adverse decision, the ALJ mentioned that he had read the “Veterans 12 Affair Rating Decision dated September 8, 2015,” but gave “the VA 13 determination little weight” “based on the objective evidence detailed 14 above” (A.R. 30). 15 Decision or otherwise explain the reason(s) for giving only “little 16 weight” to the VA’s determination(s) (A.R. 30).10 17 /// 18 /// The ALJ did not discuss the contents of the Rating 19 20 21 22 23 24 25 26 27 28 10 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). 11 1 2 IV. The ALJ Materially Erred by Not Stating Sufficient Reasons for Failing to Give Great Weight to the VA’s Determinations. 3 4 An ALJ must always consider a VA rating of disability and must 5 ordinarily give “great weight” to such a rating. See McCartey v. 6 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (“McCartey”). 7 may give “less weight” to a VA rating of disability only if the ALJ 8 states “persuasive, specific, valid reasons for doing so that are 9 supported by the record.” An ALJ Id. (citation omitted); see also Valentine 10 v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) 11 (“Valentine”) (reaffirming same). 12 disability rating on the ground that the VA inquiry and the Social 13 Security Administration inquiry are “different” runs “afoul” of 14 McCartey’s requirements. 15 “explicitly relied on the marked similarity between the disability 16 programs of the VA and of the SSA”) (citations and quotations 17 omitted). An ALJ’s rejection of a VA Valentine, 574 F.3d at 695 (McCartey 18 19 Although the ALJ cited McCartey’s requirements, the ALJ failed to 20 state any “persuasive, specific, valid reasons” for giving less than 21 great weight to the Rating Decision, and failed to explain adequately 22 how the various VA determinations (not just September 8, 2015 23 determination) may have influenced the ALJ’s residual functional 24 capacity determination. The ALJ stated only: 25 26 . . . I have read and considered the [VA] Rating Decision 27 dated September 8, 2015 [A.R. 172-85, 249-50]. 28 Circuit, because the VA and Social Security Administration 12 In the Ninth 1 disability programs are similar, an [ALJ] must ordinarily 2 give great weight to the VA determination of disability 3 [citing McCartey v. Massanari]. 4 SSA criteria for determining disability are not identical, 5 an [ALJ] may give less weight to a VA disability rating if 6 there are persuasive, specific, valid reasons for doing so 7 that are supported by the record [citation omitted]. 8 in this case, I give the VA determination little weight 9 based on the objective evidence detailed above. However, because the VA and Thus, 10 11 (A.R. 30 (emphasis added)). The ALJ’s unspecific reference to “the 12 objective evidence detailed above” is not a “persuasive, specific, 13 [or] valid” reason to reject the VA ratings. 14 discussion of the medical record is lengthy (see A.R. 23-30), the 15 discussion fails to pinpoint any specific medical findings that 16 supposedly contradict the VA’s disability determinations. 17 v. Colvin, 2016 WL 1117774, at *3-4 (E.D. Cal. Mar. 22, 2016) (finding 18 inadequate an ALJ’s rejection of a VA rating where the ALJ generally 19 referenced the lack of “sufficient objective medical support”). While the ALJ’s See Young 20 21 As potential reasons to reject the VA’s disability 22 determinations, Defendant suggests: 23 master’s degree during the alleged disability period; and (2) the VA’s 24 alleged failure to consider whether substance abuse was a contributing 25 factor. 26 affirm the decision of an agency on a ground that the agency did not 27 invoke in making its decision.” 28 /// 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 13 1 (9th Cir. 2001).11 2 sufficient reasons for discounting the detailed VA disability 3 determinations. On the present record, the ALJ failed to state 4 5 The Court is unable to conclude that the ALJ’s error was 6 harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 7 (an error “is harmless where it is inconsequential to the ultimate 8 nondisability determination”) (citations and quotations omitted). 9 ALJ based the mental residual functional capacity determination in The 10 part on the opinion of the consultative examining psychologist (A.R. 11 26). 12 medical records (including the VA disability ratings and supporting 13 medical evidence) (A.R. 2110). 14 physicians, on whom the ALJ also partially relied, rendered their 15 opinions before the VA made its Rating Decision, and thus did not have 16 the benefit of reviewing the Rating Decision (A.R. 102). 17 expert, who apparently did review the Rating Decision, merely stated 18 conclusory agreement with the consultative psychologist’s opinion 19 concerning Plaintiff’s mental residual functional capacity (A.R. 74- 20 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 21 22 23 24 25 26 27 28 11 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
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