1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 THOMAS F., Case No.: 3:19-cv-0989-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTIONS (ECF 20 & 22) 5 v. 6 Andrew M. SAUL, Commissioner of Social Security, 7
8 Defendant. 9 10 The key question in this Social Security appeal is whether the agency’s errors were 11 harmless. 12 BACKGROUND 13 While deployed to Iraq with the U.S. Air Force, claimant Thomas F. hurt his lower 14 back lifting sandbags, leading to radicular pain in his left leg. (AR 480, 483.) Several years 15 later, he aggravated the injury in a crane accident. (AR 35, 480, 483.) Thomas then had 16 three back surgeries, culminating in a two-level spinal fusion. (AR 21-22, 35, 263-67, 412- 17 18.) In 2010, less than a year after the final spinal surgery, the Air Force medically 18 discharged him with a 52% combined disability rating. (AR 478.) Six years later, Thomas 19 underwent arthroscopic surgery on his right knee. (AR 22.) 20 Thomas applied for Social Security benefits, alleging a permanent disability starting 21 sometime between 2010 and 2016. (AR 15.) At the Social Security Administration’s 22 request, Dr. Dennis Gordon examined Thomas’s back and concluded that he had several 23 restrictions, including standing or walking “2 hours in an 8 hr workday (sedentary).” 24 (AR 765; see also AR 23.) 25 After a hearing, an Administrative Law Judge determined that Thomas’s lumbar 26 fusion and “status post arthroscopic surgery to the right knee” were severe impairments, 27 but they did not leave him unable to work. (AR 17, 25-26.) The ALJ discounted 28 Dr. Gordon’s opinion because, among other things, he found that Thomas could walk and 1 stand longer than Dr. Gordon indicated. (AR 23.) The ALJ also gave “little weight” to 2 Thomas’s Air Force disability rating. (AR 24.) 3 DISCUSSION 4 On appeal, Thomas challenges the ALJ’s treatment of both Dr. Gordon’s opinion 5 and the military’s disability rating. 6 A. Governing Law 7 This Court may set aside the Social Security Administration’s “denial of [disability] 8 benefits when the ALJ’s findings are based on legal error or are not supported by 9 substantial evidence in the record as a whole.” Schneider v. Comm’r of Soc. Sec. Admin., 10 223 F.3d 968, 973 (9th Cir. 2000); see also 42 U.S.C. § 405(g). “Substantial evidence 11 means more than a scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Vasquez v. Astrue, 13 572 F.3d 586, 591 (9th Cir. 2008) (citation omitted). When “the evidence is susceptible to 14 more than one rational interpretation,” a court must defer to the ALJ. See id. (citation 15 omitted). 16 Moreover, a court may not upset an ALJ’s decision for a harmless error. An error is 17 harmless when it is “inconsequential to the ultimate nondisability determination.” Stout v. 18 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). “[T]he burden of 19 showing that an error is harmful normally falls upon the party attacking the agency’s 20 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). In Social Security appeals, 21 claimants must therefore show that any errors raise a “substantial likelihood of prejudice.” 22 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). 23 B. Examining Doctor’s Opinion 24 First, Thomas argues that the ALJ erroneously discredited Dr. Gordon’s opinion. 25 When, as here, an examining doctor’s opinion is “contradicted by another doctor,” it “can 26 only be rejected for specific and legitimate reasons that are supported by substantial 27 evidence in the record.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). Among other 28 things, Dr. Gordon opined that Thomas could stand or walk “2 hours in an 8 hr workday 1 (sedentary).” (AR 765.) The ALJ disagreed, concluding that Thomas’s “reported activities 2 of daily living suggest that he would be capable of standing and/or walking” more than 3 that.1 (AR 23.) 4 But Thomas’s daily activities don’t suggest that he can stand or walk for two hours 5 in a workday. Or, more precisely, the record lacks substantial evidence of daily activities 6 requiring that much walking or standing. Thomas testified, “Whether it’s standing, sitting, 7 walking . . . I don’t do much of anything more than 20, 30 minutes before I need kind of 8 an adjustment or something different.” (AR 39.) He affirmed that he “could prepare simple 9 meals, drive, . . . shop for groceries, handle money, and perform at least light household 10 chores,” and that he “complete[d] several college classes with good grades.” (AR 21-22.) 11 But most of these tasks can be done sitting. And even the ones that require walking or 12 standing—like cooking, shopping, and household chores—are briefer projects that can be 13 broken up with rest breaks. Thomas in fact reported that his food preparation is rather 14 limited: “cereal, yogurt, some frozen [meals]. And [I] usually try to cook one decent meal 15 everyday and typically sit down while [the] food cooks.” (AR 161 (emphasis added).) 16 Likewise, he stated that he does a “couple household chores if I’m up to it” on an 17 “occasional[]” basis or “every couple weeks” and that he shops “occasionally” for 18 30 minutes to an hour. (AR 160-62.) 19 The only other daily activity that the ALJ mentioned was Thomas’s “reported work 20 activity including welding and metal fabrication.” (AR 22.) But these labors can also be 21 performed seated, and the record is murky as to how often or in what capacity he did them. 22 23 24 1 The Commissioner also maintains that Dr. Gordon’s standing-and-walking 25 restrictions were “inconsistent with his own examination findings.” (ECF 22-1, at 3.) But the ALJ never mentioned this rationale. This Court’s review is limited to “reasons and 26 factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 27 what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). 28 1 In one medical record, Thomas disclosed that he was “doing some metal fabrication work” 2 because he had been unable to keep a part-time job at an auto-parts store due to “his lower 3 back discomfort.” (AR 228 (emphasis added).) In other words, the “record actually 4 demonstrates that Dr. [Gordon]’s findings were consistent with [Thomas’s] descriptions of 5 [his] daily activities.” See Revels v. Berryhill, 874 F.3d 648, 664 (9th Cir. 2017). 6 So the ALJ’s sole reason for disregarding Dr. Gordon’s standing-and-walking 7 strictures was faulty. But was that error harmless? Thomas has done little to carry his 8 burden of demonstrating a “substantial likelihood of prejudice.” See Ludwig, 681 F.3d 9 at 1054. In fact, he concedes that “it is not fully clear whether crediting this opinion would 10 warrant a finding of disability.” (ECF 20-1, at 8.) But the full effect of Dr. Gordon’s 11 opinion is crystal clear. Even if the ALJ had completely embraced Dr. Gordon’s 12 recommended restrictions, the vocational expert would have deemed Thomas capable of 13 working.
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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 THOMAS F., Case No.: 3:19-cv-0989-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTIONS (ECF 20 & 22) 5 v. 6 Andrew M. SAUL, Commissioner of Social Security, 7
8 Defendant. 9 10 The key question in this Social Security appeal is whether the agency’s errors were 11 harmless. 12 BACKGROUND 13 While deployed to Iraq with the U.S. Air Force, claimant Thomas F. hurt his lower 14 back lifting sandbags, leading to radicular pain in his left leg. (AR 480, 483.) Several years 15 later, he aggravated the injury in a crane accident. (AR 35, 480, 483.) Thomas then had 16 three back surgeries, culminating in a two-level spinal fusion. (AR 21-22, 35, 263-67, 412- 17 18.) In 2010, less than a year after the final spinal surgery, the Air Force medically 18 discharged him with a 52% combined disability rating. (AR 478.) Six years later, Thomas 19 underwent arthroscopic surgery on his right knee. (AR 22.) 20 Thomas applied for Social Security benefits, alleging a permanent disability starting 21 sometime between 2010 and 2016. (AR 15.) At the Social Security Administration’s 22 request, Dr. Dennis Gordon examined Thomas’s back and concluded that he had several 23 restrictions, including standing or walking “2 hours in an 8 hr workday (sedentary).” 24 (AR 765; see also AR 23.) 25 After a hearing, an Administrative Law Judge determined that Thomas’s lumbar 26 fusion and “status post arthroscopic surgery to the right knee” were severe impairments, 27 but they did not leave him unable to work. (AR 17, 25-26.) The ALJ discounted 28 Dr. Gordon’s opinion because, among other things, he found that Thomas could walk and 1 stand longer than Dr. Gordon indicated. (AR 23.) The ALJ also gave “little weight” to 2 Thomas’s Air Force disability rating. (AR 24.) 3 DISCUSSION 4 On appeal, Thomas challenges the ALJ’s treatment of both Dr. Gordon’s opinion 5 and the military’s disability rating. 6 A. Governing Law 7 This Court may set aside the Social Security Administration’s “denial of [disability] 8 benefits when the ALJ’s findings are based on legal error or are not supported by 9 substantial evidence in the record as a whole.” Schneider v. Comm’r of Soc. Sec. Admin., 10 223 F.3d 968, 973 (9th Cir. 2000); see also 42 U.S.C. § 405(g). “Substantial evidence 11 means more than a scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Vasquez v. Astrue, 13 572 F.3d 586, 591 (9th Cir. 2008) (citation omitted). When “the evidence is susceptible to 14 more than one rational interpretation,” a court must defer to the ALJ. See id. (citation 15 omitted). 16 Moreover, a court may not upset an ALJ’s decision for a harmless error. An error is 17 harmless when it is “inconsequential to the ultimate nondisability determination.” Stout v. 18 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). “[T]he burden of 19 showing that an error is harmful normally falls upon the party attacking the agency’s 20 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). In Social Security appeals, 21 claimants must therefore show that any errors raise a “substantial likelihood of prejudice.” 22 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). 23 B. Examining Doctor’s Opinion 24 First, Thomas argues that the ALJ erroneously discredited Dr. Gordon’s opinion. 25 When, as here, an examining doctor’s opinion is “contradicted by another doctor,” it “can 26 only be rejected for specific and legitimate reasons that are supported by substantial 27 evidence in the record.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). Among other 28 things, Dr. Gordon opined that Thomas could stand or walk “2 hours in an 8 hr workday 1 (sedentary).” (AR 765.) The ALJ disagreed, concluding that Thomas’s “reported activities 2 of daily living suggest that he would be capable of standing and/or walking” more than 3 that.1 (AR 23.) 4 But Thomas’s daily activities don’t suggest that he can stand or walk for two hours 5 in a workday. Or, more precisely, the record lacks substantial evidence of daily activities 6 requiring that much walking or standing. Thomas testified, “Whether it’s standing, sitting, 7 walking . . . I don’t do much of anything more than 20, 30 minutes before I need kind of 8 an adjustment or something different.” (AR 39.) He affirmed that he “could prepare simple 9 meals, drive, . . . shop for groceries, handle money, and perform at least light household 10 chores,” and that he “complete[d] several college classes with good grades.” (AR 21-22.) 11 But most of these tasks can be done sitting. And even the ones that require walking or 12 standing—like cooking, shopping, and household chores—are briefer projects that can be 13 broken up with rest breaks. Thomas in fact reported that his food preparation is rather 14 limited: “cereal, yogurt, some frozen [meals]. And [I] usually try to cook one decent meal 15 everyday and typically sit down while [the] food cooks.” (AR 161 (emphasis added).) 16 Likewise, he stated that he does a “couple household chores if I’m up to it” on an 17 “occasional[]” basis or “every couple weeks” and that he shops “occasionally” for 18 30 minutes to an hour. (AR 160-62.) 19 The only other daily activity that the ALJ mentioned was Thomas’s “reported work 20 activity including welding and metal fabrication.” (AR 22.) But these labors can also be 21 performed seated, and the record is murky as to how often or in what capacity he did them. 22 23 24 1 The Commissioner also maintains that Dr. Gordon’s standing-and-walking 25 restrictions were “inconsistent with his own examination findings.” (ECF 22-1, at 3.) But the ALJ never mentioned this rationale. This Court’s review is limited to “reasons and 26 factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 27 what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). 28 1 In one medical record, Thomas disclosed that he was “doing some metal fabrication work” 2 because he had been unable to keep a part-time job at an auto-parts store due to “his lower 3 back discomfort.” (AR 228 (emphasis added).) In other words, the “record actually 4 demonstrates that Dr. [Gordon]’s findings were consistent with [Thomas’s] descriptions of 5 [his] daily activities.” See Revels v. Berryhill, 874 F.3d 648, 664 (9th Cir. 2017). 6 So the ALJ’s sole reason for disregarding Dr. Gordon’s standing-and-walking 7 strictures was faulty. But was that error harmless? Thomas has done little to carry his 8 burden of demonstrating a “substantial likelihood of prejudice.” See Ludwig, 681 F.3d 9 at 1054. In fact, he concedes that “it is not fully clear whether crediting this opinion would 10 warrant a finding of disability.” (ECF 20-1, at 8.) But the full effect of Dr. Gordon’s 11 opinion is crystal clear. Even if the ALJ had completely embraced Dr. Gordon’s 12 recommended restrictions, the vocational expert would have deemed Thomas capable of 13 working. After all, the ALJ posed two hypotheticals to that expert: one incorporating the 14 restrictions that the ALJ ultimately adopted and another adding Dr. Gordon’s proposed 15 standing-and-walking limitations. (AR 42-43; see also AR 23.) For each hypothetical, the 16 ALJ asked the vocational expert whether Thomas could work under those constraints. 17 (AR 42-43.) Each time, the expert replied that Thomas would still be employable and 18 offered several examples of jobs that he could do within those limits. (AR 43.) This 19 undisputed testimony is fatal to Thomas’s claim of prejudicial error.2 20 C. Air Force Disability Rating 21 Thomas next complains that the ALJ gave “little weight” to his Air Force disability 22 rating. As a threshold matter, the parties agree that the Air Force uses the same rating 23 system as the Department of Veterans Affairs and that the caselaw on VA ratings applies. 24 25 2 For the harmlessness analysis, it bears noting that much of Dr. Gordon’s opinion 26 was unhelpful to Thomas. For example, Dr. Gordon believed that Thomas could 27 “frequently climb ramps and stairs, . . . stoop, kneel, crouch, and crawl.” (AR 23; see also AR 765.) The ALJ aided Thomas’s cause by rejecting this conclusion and finding that 28 1 (See ECF 20-1, at 9-10; ECF 22-1, at 6-7.) That caselaw, in turn, recognizes the “marked 2 similarity” between the disability determinations of the VA and the Social Security 3 Administration. See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Thus, 4 ALJs must ordinarily assign “great weight” to a VA rating unless they offer “persuasive, 5 specific, valid reasons for [discounting it] that are supported by the record.”3 Id. 6 The ALJ offered two reasons for questioning the rating’s significance here, but none 7 that are persuasive, specific, and valid. First, the ALJ criticized the rating’s lack of “specific 8 function-by-function limitations.” (AR 24.) But the absence of a “function-by-function 9 assessment” is “not a valid basis to reject a VA disability determination,” as this 10 justification is “merely based on the differences between the two agencies’ disability 11 programs and the form of their findings.” See Shannan C. v. Comm’r of Soc. Sec., No. 12 6:18-cv-00625-CL, 2019 WL 6468559, at *8 (D. Or. Dec. 2, 2019); see also Robert H. v. 13 Berryhill, No. 3:17-cv-05691-TLF, 2018 WL 5292368, at *8 (W.D. Wash. Oct. 25, 2018) 14 (rejecting an ALJ’s finding that the “VA ratings” do not give enough “functionally specific 15 information” because this criticism was not “a valid or specific reason”). 16 The ALJ’s second reason for not entirely accepting the Air Force rating is that it 17 does not “necessarily preclude . . . other work activity.” (AR 24.) Put another way, the ALJ 18 in essence argues: Because the Air Force concedes that Thomas may still hold some civilian 19 jobs, I am free to ignore that conclusion (even though I agree with it). This may be a strong 20 argument for harmless error, but it is an invalid and unpersuasive rationale for distrusting 21 the Air Force rating. As neither of the ALJ’s proffered reasons pass muster, the ALJ erred 22 in giving less weight to the Air Force disability rating. 23 24 25 3 Thomas’s 2016 disability-benefits application would be decided under a different 26 rule if filed today. As of March 27, 2017, the Social Security Administration will not 27 analyze another government agency’s decision “about whether [the claimant is] disabled.” Underhill v. Berryhill, 685 F. App’x 522, 524 n.1 (9th Cir. 2017) (citation omitted). 28 1 Thomas must again carry the burden of showing that this error raises a “substantial 2 likelihood of prejudice.” See Ludwig, 681 F.3d at 1054. To resolve that issue, we must 3 delve into VA ratings generally and Thomas’s rating in particular. To be deemed 4 unemployable for civilian work under the VA scheme, a veteran needs at least a 60% rating 5 for a single disability or a 70% combined rating for multiple disabilities. See 38 C.F.R. 6 § 4.16(a). Thomas fell below those thresholds: The Air Force assigned him ratings of 7 40% for his lumbar disc herniation and 20% for his left leg radicular neuritis, with a 8 52% combined disability rating. (AR 478-79.) So, Thomas’s rating actually suggested that 9 he could perform some civilian work. And nothing in the record indicates that the health 10 conditions covered by his Air Force rating worsened after his medical retirement. To the 11 contrary, the ALJ repeatedly noted that Thomas’s “condition was stable” during the period 12 of alleged disability, and at times Thomas even “requested a reduction in his pain 13 medications.” (AR 22; see also AR 23 (noting Thomas’s “surgical history [while he was 14 still in the Air Force] and subsequently stable condition”); id. (relying on Thomas’s 15 post-surgery “recovery and stability” for discounting an opinion offered when Thomas was 16 still in the military).) 17 In short, the Air Force rating supports the ALJ’s ruling that Thomas was capable of 18 performing jobs in the national economy and thereby undercuts any claim of prejudice. At 19 any rate, Thomas has done little to shoulder his burden of proving otherwise. His two 20 arguments for prejudice both betray a misunderstanding of his disability rating’s meaning. 21 First, Thomas contends that his Air Force rating required his medical retirement from 22 active duty, which “could mean that he cannot engage in substantial gainful activity.” 23 (ECF 20-1, at 10 (emphasis added).) But it didn’t mean that here. While the Air Force 24 found Thomas unfit for further military service, it also gave him a 52% combined disability 25 rating, implying he is fit for civilian work. See 38 C.F.R. § 4.16(a); (AR 478). Second, 26 Thomas points out that his rating is close to “the 80% rating” that McCartey equated to an 27 “inability to perform any substantial gainful activity.” (ECF 20-1, at 10.) That is a 28 non sequitur. The “total disability rating of 80%” in McCartey exceeds the VA’s 1 || 70% combined-disability-rating benchmark for unemployability. See McCartey, 298 F.3d 2 ||at 1073; 38 C.F.R. § 4.16(a). By contrast, Thomas’s 52% combined rating falls below that 3 ||threshold. See Brewer v. Colvin, No. 4:12-CV-00542-RDP, 2013 WL 6490574, at *7 4 ||(N.D. Ala. Dec. 10, 2013) (finding that “any errors in the consideration of the VA ratings 5 || were harmless” when plaintiff did not meet “the total disability requirement of seventy 6 || percent’). 7 As Thomas has not shown any prejudice, the ALJ’s error in doubting the Air Force 8 || disability rating was harmless. 9 CONCLUSION 10 Because both claimed errors are harmless, the Court affirms the ALJ’s decision. So 11 || plaintiff Thomas’s summary-judgment motion is denied, and defendant’s cross-motion for 12 ||summary judgment is granted. 13 AFFIRMED. 14 || Dated: March 26, 2021 15 — | 16 Hon. ndrew G. Schopler United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28