Jones v. Social Security Admin

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 TARA J., Case No.: 19-cv-2288-TWR-AGS 4 Plaintiff, REPORT AND RECOMMENDATION ON PLAINTIFF’S SUMMARY5 v. JUDGMENT MOTION (ECF 27) 6 Kilolo KIJAKAZI, Acting Commissioner of Social Security, [7] Defendant. [9] Despite claimant’s 100% disability rating from the Department of Veterans Affairs, [10] a Social Security judge found claimant was not disabled. The question is whether the judge [11] properly rejected the VA’s 100% rating. [12] BACKGROUND [13] After her honorable discharge from the Navy, plaintiff Tara J. developed “a service14 connected disab[ility]” that the VA “evaluated at 100 percent.” (AR 22.) The VA also [15] individually rated Tara’s impairments, including major depressive disorder (rated at 70%), [16] asthma (60%), and four other conditions (30% or less). (AR 22, 155, 1148-49.) [17] When Tara later applied for Social Security disability benefits, an Administrative [18] Law Judge concluded that her depression, asthma, anxiety, and spinal disorder were [19] “severe” impairments. (AR 17, 19.) But the ALJ also found that Tara could do “medium [20] work” with “postural limitations,” performing “nonpublic[,] simple[,] repetitive tasks.” [21] (AR 21-22.) So, the ALJ ruled that Tara was employable and not disabled. [22] DISCUSSION [23] On appeal, Tara contends that the ALJ erred by, among other things, discrediting her [24] 100% VA disability rating. [25] A. The VA’s Disability Rating [26] ALJs must assign “great weight to a VA determination of disability,” unless they [27] provide “persuasive, specific, valid reasons for [not] doing so that are supported by the [28] 1 record.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). The ALJ here 2 discounted Tara’s 100% disability rating for four reasons, none of which were “persuasive, 3 specific, [or] valid.” See McCartey, 298 F.3d at 1076 . 4 First, the ALJ noted that the Social Security Administration and the VA do not use 5 “the same procedures” or “criteria” to determine disability, that the two agencies’ disability 6 determinations are “not interchangeable,” and thus that “the VA disability rating is not an 7 unemployability assessment under Social Security Regulations.” (AR 23.) But the Ninth 8 Circuit has rejected this exact rationale, holding instead that “[t]he VA criteria for 9 evaluating disability . . . translate easily into SSA’s disability framework.” McCartey, [10] 298 F.3d at 1076 ; see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685 , 695 11 (9th Cir. 2009) (“Insofar as the ALJ distinguished the VA’s disability rating on the general 12 ground that the VA and SSA disability inquiries are different, her analysis fell afoul of 13 McCartey.”); Kevin B. v. Berryhill, No. 3:18-cv-00609-W (RNB), 2019 WL 3344626 , 14 at *8 (S.D. Cal. July 25, 2019) (“[The argument that] the VA rating was not an 15 unemployability assessment . . . cannot be reconciled . . . with the Ninth Circuit’s 16 [McCartey] holding.”), adopted, 2019 WL 5098875 (S.D. Cal. Aug. 12, 2019). The 17 supposed difference in the two programs was not a valid reason to reject Tara’s VA rating. 18 Second, the ALJ questioned the VA rating because it “was not based on a 19 comprehensive evaluation of the evidence available herein,” but never elaborated on this 20 conclusory assertion. (AR 23.) The Ninth Circuit requires “[m]uch more specific 21 reasoning” because such perfunctory conclusions do not “meaningfully allow for judicial 22 review.” Vardaman v. Saul, 772 F. App’x 606 , 607, 607 n.1 (9th Cir. 2019) (reversing an 23 ALJ’s conclusory determination that the “VA rating is not consistent with the evidence”); 24 see also Beshia v. Comm’r of Soc. Sec., 328 F. Supp. 3d 1341, 1348 (M.D. Fla. 2018) [26] 27 1 The Social Security regulation at issue in McCartey was later amended effective March 27, 2017. See 20 C.F.R. § 404.1504 . Because Tara filed her claim on March 10, [28] 1 (describing as “cursory treatment” and “legal error” an ALJ’s “perfunctor[y]” statement 2 that “the medical evidence generally undermines the VA’s [100%] rating” (quotation 3 marks omitted)); cf. Valentine, 574 F.3d at 695 (upholding an ALJ’s reasoning that “the 4 VA’s [disability] determination was not based on a comprehensive evaluation of the 5 evidence available” when the ALJ made it “clear” that the VA rating “rested on [a doctor’s] 6 opinion that the ALJ rejected”). The ALJ never specified what evidence the VA overlooked 7 (or what evidence was unavailable to the VA) that undermined its rating. That specificity 8 is required for meaningful judicial review. See Vardaman, 772 F. App’x at 607. And this 9 Court may not indulge in “post hoc rationalizations that . . . intuit what the adjudicator may 10 have been thinking.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 11 2009). Thus, the generalized rationale here cannot justify discounting the VA rating. 12 Third, the ALJ minimized the rating because “none of the conditions the VA rates is 13 anywhere near the level of disabling impairment by Social Security Standards.” (AR 24.) 14 But the ALJ is simply wrong. To be deemed totally disabled or unemployable under the 15 VA scheme, a claimant needs at least a 60% rating for a single disability or a 70% combined 16 rating for multiple disabilities. See 38 C.F.R. § 4.16 (a). Tara had both. Her combined rating 17 was 100%, and she had not one, but two disabilities that were above the 60% single18 impairment threshold for unemployability: her asthma (60%) and major depressive 19 disorder (70%). (AR 22, 1148.) Under McCartey, this total-disability finding was entitled 20 to “great weight” due to the “marked similarity” between the VA and Social Security 21 disability inquiries. 298 F.3d at 1076 . The ALJ’s implication that “standards” differ 22 between these “two federal disability programs” is not a “persuasive, specific, [or] valid 23 reason[]” to discredit the VA rating. See id. 24 Finally, the ALJ editorialized that most of the VA’s listed impairments were in the 25 “almost not relevant category,” presumably referring to the four conditions rated at 30% or 26 below. (See AR 24-25, 1148-49.) Even if these had been Tara’s only VA ratings, an ALJ 27 cannot disregard a VA determination by summarily branding it “not relevant.” See Luther 28 v. Berryhill, 891 F.3d 872, 877 (9th Cir. 2018) (holding that an ALJ’s finding that the VA 1 rating “doesn’t matter” and “has no bearing” was not a “persuasive, specific, and valid 2 reason[] for rejecting it”). 3 So, the ALJ erred in rejecting Tara’s 100% disability rating. 4 B. Harmless Error 5 Even when the ALJ errs, “we must affirm if the error is harmless.” Zavalin v. Colvin, [6] 778 F.3d 842, 845 (9th Cir. 2015). An error is harmless when it is “inconsequential to the 7 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 8 2012). The mishandling of the VA rating here cannot be considered inconsequential. Tara’s 9 combined rating is a totally disabling 100%, and she also has two individual impairments 10 that each qualify under the VA scheme as fully disabling. (AR 22, 1148-49.) If the ALJ 11 had given these ratings great weight, he might have included additional limitations in 12 Tara’s residual functional capacity that would make her unemployable, such as including 13 breaks for “psychologically based symptoms” or the “need to use the nebulizer for [her] 14 asthma” that would take her “off task for 15 percent of the work day.” (See AR 61.) Failing 15 to appropriately “discuss and weigh the VA’s disability rating . . . require[s] remand so that 16 the ALJ can properly consider and weigh them in light of the other evidence in the record.” 17 Conklin v. Colvin, No. 2:15-CV-1616-CKD, 2016 WL 5791648 , at *5 (E.D. Cal. Oct. 3, 18 2016).2 19 C. Remedy 20 When “the record has been developed fully and further administrative proceedings 21 would serve no useful purpose, the district court should remand for an immediate award of 22 benefits.” Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). 23 But when “the record as a whole creates serious doubt as to whether the claimant is, in fact, 24 disabled,” the court should remand for further proceedings. Garrison v. Colvin, 759 F.3d 25 995, 1021 (9th Cir. 2014). The record here raises such “serious doubt.” The ALJ correctly [27] 2 As the VA-rating error alone requires reversal, the Court need not address Tara’s [28] 1 ||noted that, despite the VA rating, a consultative psychiatric examiner graded Tara’s 2 ||employment restrictions as “mild” or “no impairment” in each rated category. (See 3 || AR 1063.) The VA did not have the benefit of this review when considering Tara’s 4 ||impairments. (Compare AR 155 (April 10, 2017 VA letter confirming 100% disability), 5 || with AR 1058 (June 28, 2017 examination).) Similarly, the ALJ correctly noted that Tara’s 6 ||asthma was often “controlled with medications and inhaled nebulizer treatment” 7 throughout the record. (AR 22; see, e.g., AR 52-53, 177, 198, 232, 873.) Thus, further 8 || proceedings are needed to determine whether, after an appropriate weighing of the VA’s 9 || rating, Tara is in fact disabled. See Garrison, 759 F.3d at 1021 . 10 CONCLUSION 11 Because the ALJ did not properly weigh the VA’s 100% disability rating, the Court 12 |}recommends that Tara’s summary-judgment motion be GRANTED and that the case be 13 |} REMANDED for further proceedings. The parties must file any objections to this report 14 September 8, 2021. See 28 U.S.C. § 636 (b)(1). A party may respond to any objection 15 || within 14 days of receiving it. Fed. R. Civ. P. 72(b)(2). 16 Dated: August 25, 2021 17 — | | 18 Hon. ndrew G. Schopler United States Magistrate Judge