Cushman v. Social Security Administration

175 F. App'x 861

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2006
• Docket: No. 04-35888
• Status: Published

Opinion

MEMORANDUM

**

Philip Cushman appeals pro se from the district court’s order reversing the administrative law judge’s (“ALJ”) decision denying disability benefits and remanding for further proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion a district court’s decision to remand for further proceedings. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000). We reverse in part and remand for the payment of benefits, and affirm in part.

Cushman contends the district court abused its discretion by remanding for further proceedings, instead of for an immediate award of benefits. We agree.

There is no dispute that the ALJ failed to properly evaluate the testimony of Cushman and his wife, and medical evidence in the record, particularly with regard to the Veteran’s Administration (‘VA”) disability ratings. Where the opinion of a treating or examining physician or claimant is improperly rejected, such opinions and testimony are credited “as a matter of law.” See Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995). Furthermore, although a VA disability rating does not necessarily compel the Social Security Administration to reach the same result, such rating must be given great weight. See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.2002).

We conclude that when the improperly rejected evidence is credited, and great weight is given to the VA’s 60% disability rating, it compels a finding of disability throughout the relevant period. We therefore reverse the district court and remand for payment of benefits with regard to the third application for disability benefits.

We affirm the district court with regard to its decision remanding for further proceedings to re-evaluate Cushman’s request for reopening of his second application, especially in light of a fraudulently altered note that the ALJ partially relied on in its decision to deny benefits.

REVERSED in part; AFFIRMED in part; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.