Daniel Patrick Mason v. Carolyn Colvin, No. 2:2016cv01586 - Document 31 (C.D. Cal. 2016)
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 Patrick Mason v. Carolyn Colvin Doc. 31 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 PATRICK MASON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security ) Administration, ) ) Defendant. ) ____________________________________) NO. CV 16-1586-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 March 8, 2016, seeking review of 26 the Commissioner’s denial of benefits. 27 summary judgment on August 22, 2016. 28 summary judgment on November 17, 2016. Plaintiff filed a motion for Defendant filed a motion for The parties consented to a Dockets.Justia.com 1 Magistrate Judge on December 9, 2016. The Court has taken both 2 motions under submission without oral argument. 3 “Order,” filed March 10, 2016. See L.R. 7-15; 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff, a former Navy missile fire controlman, asserts 8 disability since November 25, 2009 (Administrative Record (“A.R.”) 33- 9 34, 54, 139, 146-54). An Administrative Law Judge (“ALJ”) examined 10 the medical record and heard testimony from Plaintiff, Plaintiff’s 11 domestic partner/caregiver, and a vocational expert (A.R. 15-22, 29- 12 48, 247-522). 13 14 The ALJ found that Plaintiff suffers from severe “history of mild 15 compression deformities [at] L1, T12, T11, and L5-S1 disc bulge with 16 mild foraminal stenosis and facet arthropathy with persistent 17 complaints of back pain; labral tear, right hip; history of 18 meniscectomy with mild soft tissues [sic] edema and mild subluxation; 19 GERD [gastrointestinal reflux disease]; depression and anxiety” (A.R. 20 17). 21 functional capacity to perform a full range of unskilled light work 22 (A.R. 18-21). 23 limitations, rejecting a consultative psychologist’s contrary opinion 24 (A.R. 18-21; see A.R. 262-65). 25 functional capacity is not disabled under Rules 202.21 and 204.00 of 26 the Medical-Vocational Guidelines (the “Grids”) (A.R. 21-22). 27 /// 28 /// The ALJ determined that Plaintiff nevertheless has the residual The ALJ found Plaintiff has no mental functional The ALJ found that a person with this 2 1 The Appeals Council considered additional evidence but denied 2 review (A.R. 4-9; see also A.R. 523 (additional evidence consisting of 3 letter from treatment provider opining that Plaintiff has significant 4 limitations)). 5 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 10 findings are supported by substantial evidence; and (2) the 11 Administration used correct legal standards. 12 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 13 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 14 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 15 Substantial evidence is “such relevant evidence as a reasonable mind 16 might accept as adequate to support a conclusion.” 17 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 18 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Richardson v. 19 20 If the evidence can support either outcome, the court may 21 not substitute its judgment for that of the ALJ. 22 Commissioner’s decision cannot be affirmed simply by 23 isolating a specific quantum of supporting evidence. 24 Rather, a court must consider the record as a whole, 25 weighing both evidence that supports and evidence that 26 detracts from the [administrative] conclusion. 27 /// 28 /// 3 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 Where, as here, the Appeals Council considered additional 5 evidence but denied review, the additional evidence becomes part of 6 the record for purposes of the Court's analysis. 7 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 8 new evidence in deciding whether to review a decision of the ALJ, that 9 evidence becomes part of the administrative record, which the district See Brewes v. 10 court must consider when reviewing the Commissioner's final decision 11 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 12 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 13 1228, 1231 (2011) (courts may consider evidence presented for the 14 first time to the Appeals Council “to determine whether, in light of 15 the record as a whole, the ALJ’s decision was supported by substantial 16 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 17 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 18 information and it became part of the record we are required to review 19 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 20 21 DISCUSSION 22 23 Plaintiff asserts, inter alia, that the ALJ erred in connection 24 with the ALJ’s treatment of a disability rating by the Department of 25 Veterans Affairs (“VA”). 26 agrees. 27 /// 28 /// See Plaintiff’s Motion, pp. 5-7. The Court Remand for further administrative proceedings is appropriate. 4 1 I. The VA Disability Rating and the ALJ’s Treatment Thereof 2 3 On February 9, 2010, the VA issued a “Rating Decision” and 4 awarded disability benefits (A.R. 135-45). 5 percent disabled based on a compression fracture to the eleventh 6 thoracic vertebra, a postoperative left knee meniscectomy, and 7 “generalized anxiety disorder and major depressive disorder” (A.R. 8 136, 139-40). 9 record,1 the VA detailed the objective and subjective evidence 10 The VA found Plaintiff 40 In the portion of the Rating Decision that is in the assertedly supporting its determination. See A.R. 140-41. 11 12 At the administrative hearing, the ALJ acknowledged that 13 Plaintiff had a “VA rating based on [his] left knee, a back injury, 14 and some depression” (A.R. 35), but offered no further discussion of 15 the rating. 16 mention the VA rating or indicate what if any weight the ALJ had given 17 to the rating. See A.R. 35-47. In the adverse decision, the ALJ did not See A.R. 15-22. 18 19 II. The ALJ Was Required to Consider the VA Rating and to Explain the 20 ALJ’s Reasons for Apparently Failing to Give Great Weight to the 21 VA Rating; The ALJ Materially Erred by Not Complying with These 22 Requirements. 23 24 An ALJ must always consider a VA rating of disability and must 25 ordinarily accord “great weight” to such a rating. 26 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). McCartey v. An ALJ may accord 27 1 28 record. Page 2 of the Rating Decision is missing from the See A.R. 139-40. 5 1 “less weight” to a VA rating of disability only if the ALJ “gives 2 persuasive, specific, valid reasons for doing so that are supported by 3 the record.” Id. (citation omitted). 4 5 In the present case, the ALJ’s decision does not reflect any 6 express consideration of the VA rating (A.R. 15-22). The ALJ’s 7 decision does not offer any explanation regarding how much weight, if 8 any, the ALJ gave the VA rating, or how the VA rating may have 9 influenced the ALJ’s residual functional capacity determination (id.). 10 11 As indicated above, the ALJ found Plaintiff capable of performing 12 a full range of unskilled light work and applied the Grids to deem 13 Plaintiff not disabled (A.R. 18, 21-22). 14 apparent approval the May, 2010 opinion of a consultative examiner who 15 had discerned no functional limitations (A.R. 20, 249-54). 16 consultative examiner stated “There were no records to review” (A.R. 17 250). 18 “situation. . . probably should be handled by the VA or the military” 19 (A.R. 253). 20 Decision, which had been issued months before. 21 reviewed the Rating Decision, but failed to address it in the ALJ’s 22 decision. 23 1076; see also Zawatski v. Colvin, 2016 WL 6563635, at *3 (D. Ariz. 24 Nov. 4, 2016) (“Although the ALJ acknowledged that the VA decision 25 existed, the ALJ never adopted or rejected the VA’s decision and did 26 not state the weight attributed to it”); Curbow v. Colvin, 2016 WL 27 386221, at *4 (D. Ariz. Feb. 2, 2016) (“Not only does the ALJ’s 28 decision not discuss the weight assigned to Plaintiff’s disability The ALJ referenced with This Perhaps ironically, the examiner also stated that the Thus, the examiner evidently did not review the Rating This was error. The ALJ may have See McCartey v. Massanari, 298 F.3d at 6 1 rating, but it does not acknowledge that a VA disability rating is 2 ordinarily entitled to great weight. 3 does not provide sufficient analysis in which the Court may infer the 4 weight assigned to the rating.”); Ferguson v. Colvin, 2015 WL 5178426, 5 at *3 (E.D. Cal. Sept. 4, 2016) (“Although the ALJ acknowledged the 6 existence of the VA’s disability rating, the ALJ failed to address 7 what, if any, weight the ALJ assigned to that rating. 8 the extent the ALJ afforded less than great weight to the VA’s 9 disability rating, the ALJ failed to offer any persuasive, specific In addition, the ALJ’s decision Moreover, to 10 and valid reason supported by the record for doing so.”); Yuvienco v. 11 Astrue, 2011 WL 4704264, at *2 (D. Or. July 18, 2011), adopted, 2011 12 WL 4596126 (D. Or. Sept. 30, 2011) (“[T]he ALJ’s decision leaves 13 unclear whether he gave less than great weight to the VA rating 14 decision and, if so, his reasons for doing so. 15 decision cannot be upheld under the holding of McCartey v. 16 Massanari.”). Accordingly, his 17 18 In the absence of any citation to authority or to competent 19 medical evidence in the record, Defendant argues that the ALJ’s 20 residual functional capacity determination was actually “consistent” 21 with the VA Rating Decision. 22 the ALJ to assess a capacity for unlimited light work based on the VA 23 rating and Plaintiff’s age. 24 only competent medical opinions in the record that expressly 25 considered the VA rating suggest otherwise. 26 agency physicians reviewed the record, including Plaintiff’s VA rating 27 and the consultative examiner’s opinions, and found, inter alia, that 28 Plaintiff has postural functional limitations and mental functional Defendant argues it was “reasonable” for See Defendant’s Motion, pp. 3-4. 7 The In July of 2010, State 1 limitations. 2 examiner’s psychological report and medical source statement from June 3 of 2010, opining that Plaintiff has moderate to severe impairment in 4 social functioning, and suggesting neuropsychological testing to 5 determine whether Plaintiff has impairments in understanding and 6 memory, concentration and persistence, and adaptation). 7 Defendant’s argument must be rejected because the Court “cannot affirm 8 the decision of an agency on a ground that the agency did not invoke 9 in making its decision.” 10 See A.R. 50-62; see also A.R. 262-65 (consultative In any event, Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001). 11 12 The Court is unable to conclude that the ALJ’s errors were 13 harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 14 (an error “is harmless where it is inconsequential to the ultimate 15 nondisability determination”) (citations and quotations omitted). 16 ALJ found no postural or mental functional limitations, relied solely 17 on the Grids to deem Plaintiff not disabled, and obtained no 18 vocational expert testimony regarding whether there exist jobs that 19 Plaintiff could perform notwithstanding his alleged limitations (A.R. 20 21-22, 47). The 21 22 III. Remand for Further Administrative Proceedings is Appropriate. 23 24 Remand is appropriate because the circumstances of this case 25 suggest that further administrative review could remedy the ALJ’s 26 errors. 27 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 28 administrative determination, the proper course is remand for McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see also 8 1 additional agency investigation or explanation, except in rare 2 circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 3 (“Unless the district court concludes that further administrative 4 proceedings would serve no useful purpose, it may not remand with a 5 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 6 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative 7 proceedings is the proper remedy “in all but the rarest cases”); 8 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will 9 credit-as-true medical opinion evidence only where, inter alia, “the 10 record has been fully developed and further administrative proceedings 11 would serve no useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180- 12 81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 13 proceedings rather than for the immediate payment of benefits is 14 appropriate where there are “sufficient unanswered questions in the 15 record”). 16 17 There remain significant unanswered questions in the present 18 record. For example, as discussed above, the weight accorded to the 19 VA Rating Decision is unclear on the present record. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 9 1 CONCLUSION 2 3 For all of the foregoing reasons,2 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: December 13, 2016. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 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. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d at 1021. 10
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