Phillip L. Robinson v. Carolyn W. Colvin, No. 5:2013cv00684 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the action is REMANDED for further proceedings consistent with this opinion. (twdb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 PHILIP L. ROBINSON, Plaintiff, 13 14 15 16 17 v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant. ) Case No. ED CV 13-00684-DFM ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) 18 19 Plaintiff Philip Robinson ( Plaintiff ) seeks judicial review of the 20 Commissioner s final decision denying his application for disability insurance 21 benefits. For the reasons stated below, the Commissioner s decision is reversed 22 and the matter is remanded for further proceedings. 23 I. 24 FACTUAL AND PROCEDURAL BACKGROUND 25 Plaintiff filed his application for disability insurance benefits on July 20, 26 2010, alleging disability beginning September 1, 2007. In an unfavorable 27 decision, the Administrative Law Judge ( ALJ ) concluded that Plaintiff was 28 not disabled because he could perform work that exists in significant numbers 1 in the national economy. Administrative Record ( AR ) 27-38. 2 II. 3 ISSUE PRESENTED The parties dispute whether the ALJ erred in failing to properly consider 4 5 the September 2, 2011 report of the United States Department of Veterans 6 Affairs ( VA ), which granted Plaintiff entitlement to individual 7 unemployability. See Plaintiff s Motion for Summary Judgment ( Pltf s MSJ ) 8 at 3; Defendant s Cross-Motion for Summary Judgment ( Deft s MSJ ) at 3. 9 III. 10 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 11 12 Commissioner s decision to deny benefits. The ALJ s findings and decision 13 should be upheld if they are free from legal error and are supported by 14 substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); 15 Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 16 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as 17 a reasonable person might accept as adequate to support a conclusion. 18 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 19 Cir. 2007). It is more than a scintilla, but less than a preponderance. 20 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 21 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports 22 a finding, the reviewing court must review the administrative record as a 23 whole, weighing both the evidence that supports and the evidence that detracts 24 from the Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 25 (9th Cir. 1996). If the evidence can reasonably support either affirming or 26 reversing, the reviewing court may not substitute its judgment for that of 27 the Commissioner. Id. at 720-21. 28 /// 2 1 IV. 2 DISCUSSION 3 Plaintiff alleges that the ALJ erred in failing to consider the VA s second 4 assessment of Plaintiff, issued on September 2, 2011, which granted Plaintiff 5 entitlement to individual unemployability effective November 29, 2010. Pltf s 6 MSJ at 3-8 (citing AR 118-25). Although the ALJ considered a 2010 VA 7 disability rating which did not find Plaintiff unemployable, the ALJ did not 8 specifically address the VA s 2011 assessment. See AR 27-38. 9 The ALJ must ordinarily give great weight to a VA determination of 10 disability. McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002) 11 (reversing a denial of benefits because the ALJ failed to consider the VA 12 finding and did not mention it in his opinion ). While a VA disability decision 13 does not necessarily compel the SSA to reach an identical result, ¦ the ALJ 14 must consider the VA s finding in reaching his decision, because of the 15 similarities between the VA disability program and the Social Security 16 disability program. Id. However, because the two federal programs are not 17 identical, the ALJ may give less weight to a VA disability rating if he gives 18 persuasive, specific, valid reasons for doing so that are supported by the 19 record. Id. Furthermore, an ALJ [is] justified in rejecting the VA s disability 20 rating on the basis that she had evidence the VA did not, which undermined 21 the evidence the VA did have, because the acquisition of new evidence or 22 properly justified reevaluation of old evidence constitutes a persuasive, 23 specific, and valid reason ¦ supported by the record under McCartey for 24 according little weight to a VA disability rating. Valentine v. Commissioner 25 Social Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). 26 Here, the VA s first disability rating, issued on August 31, 2010, did not 27 find Plaintiff unemployable, but rather granted Plaintiff a service connected 28 disability rating of 20% for hypertension and 50% for obstructive sleep apnea. 3 1 AR 551-53. In contrast, the VA s second disability rating decision, issued 2 September 2, 2011, granted Plaintiff entitlement to individual unemployability, 3 effective November 29, 2010. AR 118. The 2011 VA decision granted Plaintiff 4 a service connected disability rating of 50% for depressive disorder, 10% for left 5 knee chrondromalacia patella, 10% for right knee chrondromalacia patella, 6 50% for obstructive sleep apnea, and 20% for hypertension. AR 118-25. 7 In his decision, the ALJ noted that Plaintiff s attorney argued at the 8 administrative hearing that the VA found Plaintiff unemployable, an assertion 9 which the ALJ found to be a mischaracterization of the VA s decision. AR 10 35. However, it appears from a review of the record and the administrative 11 hearing transcript that Plaintiff s attorney was referring to the VA s September 12 2011 decision, which did in fact grant Plaintiff entitlement to unemployability, 13 see AR 45-46, while the ALJ s decision addressed the VA s earlier rating, see 14 AR 35 (citing AR 551-53). Therefore, it is clear that the ALJ did not 15 specifically address the VA s September 2, 2011 decision. 16 The Commissioner concedes that the ALJ failed to address the VA s 17 2011 decision, but argues that any error was harmless because the ALJ relied 18 upon evidence which the VA did not consider, namely a consultative 19 examination by Dr. Nizar Salek and indices that Plaintiff s subjective symptom 20 testimony was not entirely credible. Deft s MSJ at 9-10. Although an ALJ may 21 disregard a VA rating if the ALJ considers evidence which the VA did not or if 22 the VA rating is based upon evidence which the ALJ rejects, Valentine, 574 23 F.3d at 695, this presupposes that the ALJ actually considers the VA rating 24 and provides legitimate reasons for rejecting it. Here, the ALJ did not. He 25 relied solely upon the VA s 2010 decision and ignored the 2011 decision. This 26 constitutes reversible error. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 27 2012) (reversing and remanding where ALJ erred in relying upon only one VA 28 disability rating and ignoring another VA decision which found that the 4 1 2 claimant was entitled to individual unemployability). Accordingly, the case is remanded so that the ALJ may address the VA s 3 September 2, 2011 decision. On remand, the ALJ is not compelled to adopt 4 the conclusions of the VA s decisions wholesale, but if [he] deviates from final 5 VA decisions, [he] may do so based only on contrary evidence that is 6 persuasive, specific, valid and supported by the record. Id. (citing McCartey, 7 298 F.3d at 1076). 8 V. 9 CONCLUSION 10 For the reasons stated above, the decision of the Social Security 11 Commissioner is REVERSED and the action is REMANDED for further 12 proceedings consistent with this opinion. 13 14 15 Dated: October 31, 2013 16 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 5
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