# Leonard R. Greger v. Jo Anne B. Barnhart, Commissioner of Social Security > Court of Appeals for the Ninth Circuit · September 20, 2006 · 464 F.3d 968 URL: https://www.frixlaw.com/law-library/cases/9499257 ## Case - **Full name:** Leonard R. GREGER, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 20, 2006 - **Citations:** 464 F.3d 968; 2006 U.S. App. LEXIS 23907; 2006 WL 2684753 - **Precedential status:** Published - **Opinion:** Dissent by Ferguson - **Judges:** Ferguson, Callahan, Bolton - **Cited by:** 570 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499257 ## How later opinions describe it (automated extraction) - finding no error where the ALJ discounted the plaintiff’s symptom testimony based on evidence that “undermined [his] complaints” including evidence that the plaintiff “did carpentry work under the table . . . after his date last insured” and “was active with yard work, work ar… - holding “ALJ provided clear and 10 | convincing reasons for rejecting [plaintiff's] testimony and gave a detailed written opinion 11 || summarizing the specific statements by [plaintiffs] that were not credible and the evidence that 12 | undermined [plaintiff's] complaints” - finding that the “[claimant] failed to report any shortness of breath or chest pain” and never “participated in a planned . . . rehabilitation program” and holding that the ALJ therefore “provided clear and convincing reasons for rejecting [the claimant]’s testimony” - recognizing that there is an exception “to the general rule that the court will not consider an issue raised for the first time on appeal ... when a new issue arises while appeal is pending because of a change in the law” - finding that since the claimant had never 1 raised the issue of fatigue with his doctors, the ALJ properly limited his hypothetical questions to 2 medical assumptions with objective support in the record ## Opinion text FERGUSON, Circuit Judge, dissenting: Leonard Greger suffers from Posh-Traumatic Stress Disorder (“PTSD”) arising out of his experiences during his military service in Vietnam. In 1998, the Veterans Administration (“VA”) rated Greger as 30% disabled due to his PTSD diagnosis. According to Greger, his PTSD makes it difficult for him to get along with authority, causes him to be irritable, and contributes to his anger control problems. Greger also testified that he has had trouble sleeping due to nightmares. Since 1998, Greger has been on anti-anxiety and anti-depressant medication to control his psychological problems, and previously saw a psychiatrist. In 2000, Greger told a VA examiner that, in addition to his other symptoms, his memory and concentration are poor. That same examiner noted that Greger suffers from “some vague, paranoid thoughts.” And during the examination, Greger took the Mississippi Scale of Combat Stress test and received a raw score of 131, which, according to the VA examiner, “is about average for those diagnosed with PTSD.” PTSD is a tragic disease that commonly interferes with a sufferer’s ability to interact with other people and maintain work relationships. See Kathleen A. Tarr, Above and Beyond: Veterans Disabled by Military Service, 5 GEO. J. ON FIGHTING POVERTY 39, 44 (1997). When determining whether a veteran is eligible for social security disability benefits, therefore, an Administrative Law Judge (“ALJ”) must pay particularly close attention to the VA’s findings regarding a PTSD diagnosis. See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.2002). Here, in denying Greger benefits, the ALJ failed to even mention that the VA rated Greger as 30% disabled due to his PTSD. This omission is reversible error. Id. Additionally, the ALJ’s conclusion that Gre-ger’s mental impairments are not severe is not supported by substantial evidence. For these reasons, I respectfully dissent from the majority’s affirmance of the ALJ’s denial of Greger’s request for social security disability insurance benefits. The majority holds that Greger’s PTSD-related claims are waived because of his failure to argue them before the District Court. Maj. op. at 973 - 974. We have, *975 however, recognized three exceptions to this pleading requirement. Taniguchi v. Schultz, 303 F.3d 950, 959 (9th Cir.2002). Most applicable here is the exception that allows us to consider a claim not raised before the District Court if that claim is “purely one of law and the opposing party would suffer no prejudice as a result of the failure to raise the issue” below. Id. Whether an ALJ must consider, on the record, a VA disability rating when reaching his decision is a question of law. See McCartey, 298 F.3d at 1076 (creating the rule that an ALJ procedurally errs when he fails to consider a VA finding and does not mention that finding in his opinion); cf. Silveira v. Apfel, 204 F.3d 1257 , 1260 & n. 8 (9th Cir.2000) (holding that whether an ALJ should have applied a regulation, which required a finding of disability under certain circumstances, to a particular claimant’s case is a pure question of law). Furthermore, in her answering brief, the Commissioner had the opportunity to address this purely legal claim; thus, the Commissioner is not prejudiced by our consideration of the issue. See id. at 1260 n. 8 (considering a claim raised for the first time on appeal because the claim was a pure issue of law that the Commissioner had the opportunity to respond to on appeal). Proceeding to the merits of Greger’s claim, in McCartey we held that an ALJ must generally give great weight to a VA determination of disability. McCartey, 298 F.3d at 1076 . Such deference is justified because of the “marked similarity” between the purposes and evaluation procedures employed by both the social security and VA federal disability programs. Id. If an ALJ chooses to give less weight to a VA determination, therefore, he must give “persuasive, specific, valid reasons for doing so that are supported by the record.” Id. Reversal is warranted if the ALJ does not provide evidence that he adequately considered the VA’s rating, such as by explicitly mentioning that rating in his opinion. Id. Here, despite the fact that Greger informed the ALJ of his VA rating for PTSD, the ALJ made no mention of the VA’s finding in his consideration of Gre-ger’s disability claim. The ALJ cursorily acknowledged Greger’s history of post-traumatic stress disorder and completely failed to reference either the VA’s rating or its basis. Further, it is not apparent from the record that the ALJ otherwise considered the VA’s rating. The omission is a clear violation of McCartey . Therefore, I would reverse the District Court and remand with instructions to send the case back to the ALJ for additional factual development and consideration of the impact of Greger’s PTSD on his ability to function in the workplace. Remand is especially important in this case because the ALJ’s findings regarding Greger’s mental impairments are not supported by substantial evidence. Greger testified that his PTSD makes it hard for him to get along with authority, makes him irritable, and contributes to his anger control problems. The ability to respond “appropriately to supervision, co-workers, and work pressures” is an important part of the assessment of a claimant’s functional capacity. See 20 C.F.R. § 404.1545 (c). The symptoms Greger describes would severely impact his ability to function in any workplace. The ALJ may not reject Greger’s subjective complaints without providing “specific, cogent reasons for the disbelief.” Morgan v. Commissioner, 169 F.3d 595 , 599 (9th Cir.1999). “Without affirmative evidence showing the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” Id. The ALJ countered *976 Greger’s description of the severity of his PTSD symptoms by finding that Greger did not seek ongoing treatment for his mental conditions, or ever seek mental status testing. 1 This finding is simply not supported by the evidence. First, the record shows that Greger was taking anti-anxiety and anti-depressant drugs to keep his symptoms under control. Moreover, he was given the Mississippi Scale of Combat Stress test by the VA in 2000 and received an average score for those suffering from PTSD. While this testing took place after the relevant time period, a subsequent diagnosis should still be considered by the ALJ “because it may bear upon the severity of the claimant’s condition before the expiration of his insured status.” Loza v. Apfel, 219 F.3d 378, 396 (5th Cir.2000). Additionally, the ALJ noted that treating physicians and other health care professionals “have not reported any significant psychological or depressive symptoms.” The ALJ then concluded that Greger’s PTSD had, at most, a de minimis affect on his ability “to interact socially or adapt.” This conclusion is contradicted by the VA’s 30% disability rating. The VA undertakes a very thorough review of a claimant’s medical history before rating that claimant as disabled. See McCartey, 298 F.3d at 1076 . Thus, in granting Greger benefits, the VA’s health care professionals necessarily would have determined that Greger suffered from significant psychological symptoms. The ALJ’s error in not addressing the VA’s rating on the record, therefore, is compounded by the fact that the VA’s finding contradicts the ALJ’s conclusions regarding the severity of Greger’s impairment. For these reasons, a remand is necessary; therefore, I would reverse. . The Veterans Administration notes that many soldiers who show initial signs of PTSD are reluctant to seek treatment because they "may be ashamed of opening themselves up to professionals and are very concerned about taking on a 'sick' or 'weak' persona.” Brett T. Litz, The Unique Circumstances and Mental Health Impact of the Wars in Afghanistan and Iraq, PTSD Support Services, Aug. 15, 2006, http:// www .ptsdsupport.net/PTSD — anew— generation.html. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499257. Public record. Not legal advice.