# Nina Karen Moses v. Nancy A. Berryhill

> District Court, C.D. California · June 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10038182

## Case

- **Court:** District Court, C.D. California
- **Decided:** June 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11

12 NINA M.,1 Case No. 2:19-cv-0703-GJS

13 Plaintiff

14 v. MEMORANDUM OPINION AND
ORDER
15 ANDREW M. SAUL, Commissioner
of Social Security,2
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Defendant.
17

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19 I. PROCEDURAL HISTORY
20 Plaintiff Nina M. (“Plaintiff”) filed a complaint seeking review of the
21 decision of the Commissioner of Social Security denying her application for
22 Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before
23 the undersigned United States Magistrate Judge [Dkts. 9 and 10] and briefs
24 addressing disputed issues in the case [Dkt. 16 (“Pl. Br.”), Dkt. 23 (“Def. Br.”), Dkt.
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26 1 In the interest of privacy, this Order uses only the first name and the initial of
the last name of the non-governmental party.
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2 Andrew M. Saul, now Commissioner of the Social Security Administration, is
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substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).
1 24 (“Reply Br.”)]. The matter is now ready for decision. For the reasons discussed
2 below, the Court finds that this matter should be remanded for further proceedings.
3 II. ADMINISTRATIVE DECISION UNDER REVIEW
4 On September 30, 2016, Plaintiff, a military veteran, applied for DIB,
5 alleging disability, due to post traumatic stress disorder, anxiety, pain in her back,
6 knees and shoulder and irritable bowel syndrome. [AR 22-23.] Plaintiff’s
7 application was denied initially, on reconsideration, and after a hearing before
8 Administrative Law Judge (“ALJ”) Susan Hoffman. [AR 1-6, 20-30.]
9 Applying the five-step sequential evaluation process, the ALJ found that
10 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the
11 ALJ determined that although Plaintiff had engaged in some work after the alleged
12 disability onset date, that work did not rise to the level of substantial gainful activity
13 and therefore Plaintiff had not engaged in substantial gainful activity since March
14 12, 2016, the alleged onset date. [AR 22.]. At step two, the ALJ found that Plaintiff
15 suffered from degenerative disc disease of the lumbar spine, osteoarthritis of the
16 knees and degenerative joint disease bilateral sacroiliac. [AR 23.] The ALJ
17 determined at step three that Plaintiff did not have an impairment or combination of
18 impairments that meets or medically equals the severity of one of the listed
19 impairments. [AR 25.]
20 Next, the ALJ found that Plaintiff had the residual functional capacity
21 (“RFC”) to perform a range of light work except she must have the ability to shift
22 positions as needed. [AR 25-26.] Applying this RFC, the ALJ found at step four
23 that Plaintiff could perform her past relevant work as a radiographer and medical
24 assistant and thus she is not disabled. [AR 29]. Plaintiff sought review of the ALJ’s
25 decision, which the Appeals Council denied, making the ALJ’s decision the
26 Commissioner’s final decision. [AR 1-6.] This appeal followed.
27 Plaintiff now raises the following issues challenging the ALJ’s findings and
28 determination of non-disability: (1) the ALJ erroneously failed to assign great
1 weight to Plaintiff’s VA rating; (2) the ALJ failed to evaluate Plaintiff’s subjective
2 symptom testimony; and (3) the ALJ failed to account for all of her physical and
3 mental impairments at Step Two.3
4 III. GOVERNING STANDARD
5 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
6 determine if: (1) the Commissioner’s findings are supported by substantial evidence;
7 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r
8 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec.
9 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).
10 “Substantial evidence is more than a mere scintilla but less than a preponderance; it
11 is such relevant evidence as a reasonable mind might accept as adequate to support a
12 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.
13 2014) (internal citations omitted).
14 The Court will uphold the Commissioner’s decision when the evidence is
15 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d
16 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated
17 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he
18 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not
19 reverse the Commissioner’s decision if it is based on harmless error, which exists if
20 the error is “inconsequential to the ultimate nondisability determination, or if despite
21 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.
22 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
23 omitted).
IV. DISCUSSION
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A. The ALJ Erred in Assessing Plaintiff’s VA Disability Rating
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26 In a Rating Decision dated January 14, 2015, the VA found Plaintiff entitled
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3 Because the Court reverses and remands as to the VA disability rating issue,
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the Court does not address Plaintiff’s other arguments.
1 to a 60% overall VA disability rating for post-traumatic stress disorder (50%),
2 lumbar strain (20%), and migraines (10%). [AR 360-361.] On January 19, 2018,
3 the VA issued a Rating Decision increasing Plaintiff’s disability rating to a
4 combined 100% for Plaintiff’s service connected disabilities. (Dkt. 1-1 at 2.) While
5 the January 19, 2018 Rating Decision was attached to the Complaint, it was not
6 provided to the ALJ or submitted to the Appeals Council. Plaintiff did, however,
7 testify about her 100% VA disability rating during the administrative hearing before
8 the ALJ.4 [AR 73-74.] Plaintiff contends that substantial evidence does not support
9 the ALJ’s decision because the ALJ accorded no perceptible weight to either of the
10 VA’s disability determinations. [Pl. Br. at 3-5.]
11 Although a determination by the VA that a claimant is disabled is not binding
12 on the Social Security Administration (“SSA”), an ALJ must consider that
13 determination in reaching her decision. See McCartey v. Massanari, 298 F.3d 1072,
14 1076 (9th Cir. 2002); 20 C.F.R. § 404.1504 (stating that a determination made by
15 another agency that a claimant is disabled is not binding on the SSA). A VA rating
16 is not conclusive, however. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011).
17 An ALJ must give great weight to a VA disability determination, but he may give
18 less weight if he “gives persuasive, specific, valid reasons for doing so that are
19 supported by the record.” McCartey, 298 F.3d at 1076.
20 In both McCartey and McLeod the ALJ failed to mention the claimants’ VA
21 disability ratings. In both cases, the Ninth Circuit reversed the district court
22 decision affirming the denial of Social Security benefits. However, “[s]imply
23 mentioning the existence of a VA rating is not enough.” Luther v. Berryhill, 891
24 F.3d 872, 877 (9th Cir. 2018). In Luther, another case involving the evaluation of a
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4 Given the remand here based on the ALJ’s failure to properly weigh the 2015
27 VA rating, the Court does not reach the question of whether Plaintiff’s 2018 VA
rating is new and material evidence that this Court should consider. 42 U.S.C. §
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405(g).
1 VA disability rating, the Ninth Circuit held that “[t]he ALJ erred because she did not
2 give great weight to the VA disability rating and did not provide any persuasive,
3 specific, and valid reasons for rejecting it.” Id.
4 Here, it is undisputed that the ALJ made only passing reference to the 2015
5 VA rating included in the administrative record. The ALJ addressed the VA rating
6 as follows:

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The undersigned has also read and considered the Department of
8 Veteran Affairs (VA) Rating Decision dated January 14, 2015. In the
Ninth Circuit, because the VA and Social Security Administration
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(SSA) disability programs are similar, an Administrative Law Judge
10 must ordinarily give great weight to a VA determination of disability
(McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002)). However,
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because the VA and SSA criteria for determining disability are not
12 identical, an Administrative Law Judge may give less weight to a VA
disability rating if he gives persuasive, specific, valid reasons for doing
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so that are supported by the record.
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15 [AR 28.]
The ALJ does not make any other reference to the VA rating in the decision.
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Thus, in its current state, the ALJ’s decision provides no indication of what weight
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the ALJ gave the VA disability rating. This error is particularly troubling given the
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Ninth Circuit’s repeated direction – and the ALJ’s acknowledgement of this
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direction – that the ALJ give “great weight” to the VA disability rating. Id. Without
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any express mention of the weight given to Plaintiff’s VA rating, the actual standard
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by which it was being evaluated, or inclusion of any specific reasons for giving less
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than great weight to her rating, it is impossible to conclude that the ALJ adequately
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analyzed the rating and applied the proper weight. Affirmation of the ALJ’s decision
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would therefore require the Court to improperly speculate about the basis for the
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ALJ’s conclusion of non-disability. See Hamblin v. Astrue, 2009 WL 113858, at *2
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(C.D. Cal. Jan. 14, 2009) (stating that “[t]he Ninth Circuit has made clear what is
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required to discount a VA rating—silently, or impliedly, rejecting it does not meet
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1 this standard”).
2 The Commissioner nevertheless contends that the decision should be affirmed
3 because the 2015 VA Disability Rating is largely consistent with the ALJ’s RFC
4 finding and ultimate conclusion that Plaintiff was not disabled. However, the Court
5 cannot agree with the Commissioner’s position. Instead of providing any
6 persuasive, specific, or valid reasons for discounting the VA’s rating, the ALJ
7 perfunctorily concluded that the rating was based on a different approach without
8 any further explanation of the weight given (if any) to the VA rating. The fact that
9 the VA ratings are based on a different approach than that taken by the SSA is
10 already taken into account by the case law, in that the SSA is not required to adopt
11 them. Thus, the ALJ’s explanation here does not constitute or qualify as the
12 “persuasive, specific, valid reasons” demanded by the case law, nor does it
13 meaningfully allow for judicial review. See Valentine v. Commissioner Social Sec.
14 Admin., 574 F.3d 685, 695 (9th Cir. 2009) (“Insofar as the ALJ distinguished the
15 VA’s disability rating on the general ground that the VA and SSA disability
16 inquiries are different, her analysis fell afoul of McCartey.”). Much more specific
17 reasoning was necessary, especially considering that Plaintiff was assigned (at
18 minimum) a 50% disability rating based on PTSD, an impairment that the ALJ
19 failed to find severe. See Cole v. Colvin, No. CV 13-06592-DFM, 2014 WL
20 3101464 (C.D. Cal. July 7, 2014) (remanding case where ALJ failed to address and
21 reject claimant’s 10% disability rating for persuasive and specific reasons.)
22 Finally, it cannot be said that the ALJ’s error here was harmless. See Stout v.
23 Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (“We
24 recognize harmless error applies in the Social Security context.”). Because the
25 Court cannot discern what, if any, weight was given to Plaintiff’s disability rating,
26 the ALJ’s omission of the reasons for the weight given to the VA rating cannot be
27 found to be “inconsequential to the ultimate nondisability determination,” Molina v.
28 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations omitted), and, therefore
1 cannot be characterized as harmless. Accordingly, remand is required for the ALJ
2 to set forth legally sufficient reasons for rejecting the determination of the VA, if the
3 ALJ determines that rejection is warranted.
4 V. CONCLUSION AND ORDER
5 The decision of whether to remand for further proceedings or order an
6 immediate award of benefits is within the district court’s discretion. Harman v.
7 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be
8 served by further administrative proceedings, or where the record has been fully
9 developed, it is appropriate to exercise this discretion to direct an immediate award
10 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings
11 turns upon the likely utility of such proceedings”). But when there are outstanding
12 issues that must be resolved before a determination of disability can be made, and it
13 is not clear from the record the ALJ would be required to find the claimant disabled
14 if all the evidence were properly evaluated, remand is appropriate. Id.
15 The Court finds that remand is appropriate because the circumstances of this
16 case suggest that further administrative review could possibly remedy the ALJ’s
17 errors. See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an
18 administrative determination, the proper course is remand for additional agency
19 investigation or explanation, “except in rare circumstances”); Treichler v. Comm’r
20 of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of
21 benefits is inappropriate where “there is conflicting evidence, and not all essential
22 factual issues have been resolved”); Harman, 211 F.3d at 1180-81. The Court offers
23 no opinion as to what the outcome of this matter should be after remand, when the
24 ALJ gives proper consideration to Plaintiff’s VA rating and, if necessary, addresses
25 the other issues raised by Plaintiff that the Court did not review here.
26 For all of the foregoing reasons, IT IS ORDERED that:
27 (1) the decision of the Commissioner is REVERSED and this matter
28 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
1 administrative proceedings consistent with this Memorandum Opinion and
2 Order; and
3 (2) Judgment be entered in favor of Plaintiff.
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5 IT IS SO ORDERED.

7 || DATED: June 16, 2020
8 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038182. Public record. Not legal advice.