DEMETRIUS RASHAAD, Case No. 19-cv-1126-MMA (MDD)
Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION; GRANTING PLAINTIFF’S MOTION FOR ANDREW M. SAUL, Commissioner of SUMMARY JUDGMENT; DENYING Social Security, COMMISSIONER’S CROSS- Defendant. MOTION FOR SUMMARY JUDGMENT; REMANDING ACTION TO SOCIAL SECURITY ADMINISTRATION
[Doc. Nos. 15, 18, 21] On June 17, 2019, Demetrius Rashaad (“Plaintiff”) filed this social security appeal challenging the denial of his application for disability insurance benefits. See Doc. No. 1 ¶¶ 6, 7, 9.1 The Court referred all matters arising in this social security appeal to the assigned Magistrate Judge for report and recommendation (“R&R”) pursuant to Section 1 Citations generally refer to the pagination assigned by the CM/ECF system. However, “AR” refers to citations to the Certified Administrative Record filed on October 28, 2019 and October 30, 2019. See 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1. See Doc. No. 9. The parties filed cross-motions for summary judgment. See Doc. Nos. 15, 18. The Magistrate Judge has issued a R&R recommending that the Court remand the case for further administrative action to determine whether Plaintiff is disabled. See Doc. No. 21. Andrew M. Saul, Commissioner of Social Security, (“Commissioner”) objected to the R&R, and Plaintiff replied. See Doc. Nos. 22, 23. Upon due consideration and for the reasons set forth below, the Court OVERRULES the Commissioner’s objection, ADOPTS Judge Dembin’s R&R, GRANTS Plaintiff’s motion for summary judgment, and DENIES the Commissioner’s cross-motion for summary judgment. The Court REMANDS this matter to the Social Security Administration for further administrative proceedings consistent with this Court’s Order and Judge Dembin’s R&R. Seeking judicial review to challenge the denial of his application for disability insurance benefits, Plaintiff filed the present action pursuant to 42 U.S.C. § 405(g). See Doc. No. 1 ¶ 3. Plaintiff moved for summary judgment, arguing that “[t]he ALJ failed to articulate persuasive, specific, valid reasons for rejecting [Plaintiff’s] 100% disability rating.” Doc. No. 15-1 at 8. The Commissioner filed a cross-motion for summary judgment, arguing that the Court should affirm the ALJ’s decision because “it is supported by substantial evidence and free from material or reversible legal error.” Doc. No. 18-1 at 18. The Magistrate Judge issued an R&R on the parties’ cross motions for summary judgment, in which he recommends that the case be remanded to the ALJ for further analysis. See Doc. No. 21 at 1, 10. The Magistrate Judge found that “the ALJ assigned little to no weight to every examining or treating medical opinion cited by him.” Id. at 9. The Magistrate Judge noted that “it is not clear what medical opinion supported the ALJ’s determination of Plaintiff’s [RFC].” Id. at 10. The Magistrate Judge found that “[t]his ambiguity combined with the lack of a supporting testifying medical expert suggests that the ALJ’s RFC assessment is not supported by substantial evidence in the record.” Id. Thus, without further findings, the Magistrate Judge determined “[i]t is not apparent to the Court that Plaintiff is or is not disabled without additional findings.” Id. The Commissioner now objects to the Magistrate Judge’s R&R. See Doc. No. 22. The duties of the district court in connection with a magistrate judge’s report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). A district judge may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). The Commissioner objects to the Magistrate Judge’s R&R because the ALJ “provided legally valid reasons supported by substantial evidence for rejecting the [VA] rating of 100 percent disability based on post-traumatic stress disorder (PTSD), and for ultimately finding that Plaintiff did not prove he was further restricted mentally than assessed by the Commissioner.” Doc. No. 22 at 2. In response to the Magistrate Judge’s findings that “the ALJ assigned little to no weight to every examining or treating medical opinion cited by him” and “it is not clear what medical opinion supported the ALJ’s determination of Plaintiff’s [RFC],” Doc. No. 21 at 9, 10, the Commissioner asserts that “it may be inferred that the ALJ gave weight to Drs. Gregg’s and Davis’s opinions of ‘simple work tasks; can interact with supervisors and coworkers; limited contact with the general public; can adapt to a work setting that is not fast paced’ as a basis for [the ALJ’s RFC] finding.” Doc. No. 22 at 8 (quoting AR 32–33). Rebutting the Commissioner’s argument that the ALJ’s RFC finding is supported by inferred reliance on Dr. Gregg’s and Dr. Davis’s evaluations, Plaintiff argues inference is insufficient. See Doc. No. 23 at 2. Plaintiff argues that the ALJ “never drew a nexus between the supposed broad range of evidence that found consistency with the opinions of” the two doctors. Id. at 4. Plaintiff further claims the ALJ relied upon speculative rationale without reliance on evidence in the record. See id. at 5. Additionally, Plaintiff argues that the ALJ erred in thinking that “the 100% disability rating was the combined total from other impairments such as hypertension, sleep apnea[,] and hypertensive heart disease.” Id. at 6. The Ninth Circuit has held that “although a VA rating of disability does not necessarily compel the [Social Security Administration (‘SSA’)] to reach an identical result, the ALJ must consider the VA’s finding in reaching his decision.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing 20 C.F.R. § 404.1504). The ALJ “must ordinarily give great weight to a VA determination of disability.” Id. In making its holding, the Ninth Circuit reasoned that the social security and VA programs are similar. See id. Indeed, the VA’s “criteria for evaluating disability are very specific and translate easily into SSA's disability framework.” Id. However, the criteria are not identical, and thus, “the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record.” Id. Confronted with the VA’s 100% disability rating, the ALJ did not give weight to the VA disability rating for two stated reasons: (1) general definitional differences between the two agencies and (2) inclusion of nonsevere conditions as part of the rating. See AR 35. As to the first reason, the ALJ noted that the definition of “disability” under the VA differs from that under the SSA. Id. at 35. Rejecting a VA disability rating because the governing ru
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DEMETRIUS RASHAAD, Case No. 19-cv-1126-MMA (MDD)
Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION; GRANTING PLAINTIFF’S MOTION FOR ANDREW M. SAUL, Commissioner of SUMMARY JUDGMENT; DENYING Social Security, COMMISSIONER’S CROSS- Defendant. MOTION FOR SUMMARY JUDGMENT; REMANDING ACTION TO SOCIAL SECURITY ADMINISTRATION
[Doc. Nos. 15, 18, 21] On June 17, 2019, Demetrius Rashaad (“Plaintiff”) filed this social security appeal challenging the denial of his application for disability insurance benefits. See Doc. No. 1 ¶¶ 6, 7, 9.1 The Court referred all matters arising in this social security appeal to the assigned Magistrate Judge for report and recommendation (“R&R”) pursuant to Section 1 Citations generally refer to the pagination assigned by the CM/ECF system. However, “AR” refers to citations to the Certified Administrative Record filed on October 28, 2019 and October 30, 2019. See 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1. See Doc. No. 9. The parties filed cross-motions for summary judgment. See Doc. Nos. 15, 18. The Magistrate Judge has issued a R&R recommending that the Court remand the case for further administrative action to determine whether Plaintiff is disabled. See Doc. No. 21. Andrew M. Saul, Commissioner of Social Security, (“Commissioner”) objected to the R&R, and Plaintiff replied. See Doc. Nos. 22, 23. Upon due consideration and for the reasons set forth below, the Court OVERRULES the Commissioner’s objection, ADOPTS Judge Dembin’s R&R, GRANTS Plaintiff’s motion for summary judgment, and DENIES the Commissioner’s cross-motion for summary judgment. The Court REMANDS this matter to the Social Security Administration for further administrative proceedings consistent with this Court’s Order and Judge Dembin’s R&R. Seeking judicial review to challenge the denial of his application for disability insurance benefits, Plaintiff filed the present action pursuant to 42 U.S.C. § 405(g). See Doc. No. 1 ¶ 3. Plaintiff moved for summary judgment, arguing that “[t]he ALJ failed to articulate persuasive, specific, valid reasons for rejecting [Plaintiff’s] 100% disability rating.” Doc. No. 15-1 at 8. The Commissioner filed a cross-motion for summary judgment, arguing that the Court should affirm the ALJ’s decision because “it is supported by substantial evidence and free from material or reversible legal error.” Doc. No. 18-1 at 18. The Magistrate Judge issued an R&R on the parties’ cross motions for summary judgment, in which he recommends that the case be remanded to the ALJ for further analysis. See Doc. No. 21 at 1, 10. The Magistrate Judge found that “the ALJ assigned little to no weight to every examining or treating medical opinion cited by him.” Id. at 9. The Magistrate Judge noted that “it is not clear what medical opinion supported the ALJ’s determination of Plaintiff’s [RFC].” Id. at 10. The Magistrate Judge found that “[t]his ambiguity combined with the lack of a supporting testifying medical expert suggests that the ALJ’s RFC assessment is not supported by substantial evidence in the record.” Id. Thus, without further findings, the Magistrate Judge determined “[i]t is not apparent to the Court that Plaintiff is or is not disabled without additional findings.” Id. The Commissioner now objects to the Magistrate Judge’s R&R. See Doc. No. 22. The duties of the district court in connection with a magistrate judge’s report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). A district judge may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). The Commissioner objects to the Magistrate Judge’s R&R because the ALJ “provided legally valid reasons supported by substantial evidence for rejecting the [VA] rating of 100 percent disability based on post-traumatic stress disorder (PTSD), and for ultimately finding that Plaintiff did not prove he was further restricted mentally than assessed by the Commissioner.” Doc. No. 22 at 2. In response to the Magistrate Judge’s findings that “the ALJ assigned little to no weight to every examining or treating medical opinion cited by him” and “it is not clear what medical opinion supported the ALJ’s determination of Plaintiff’s [RFC],” Doc. No. 21 at 9, 10, the Commissioner asserts that “it may be inferred that the ALJ gave weight to Drs. Gregg’s and Davis’s opinions of ‘simple work tasks; can interact with supervisors and coworkers; limited contact with the general public; can adapt to a work setting that is not fast paced’ as a basis for [the ALJ’s RFC] finding.” Doc. No. 22 at 8 (quoting AR 32–33). Rebutting the Commissioner’s argument that the ALJ’s RFC finding is supported by inferred reliance on Dr. Gregg’s and Dr. Davis’s evaluations, Plaintiff argues inference is insufficient. See Doc. No. 23 at 2. Plaintiff argues that the ALJ “never drew a nexus between the supposed broad range of evidence that found consistency with the opinions of” the two doctors. Id. at 4. Plaintiff further claims the ALJ relied upon speculative rationale without reliance on evidence in the record. See id. at 5. Additionally, Plaintiff argues that the ALJ erred in thinking that “the 100% disability rating was the combined total from other impairments such as hypertension, sleep apnea[,] and hypertensive heart disease.” Id. at 6. The Ninth Circuit has held that “although a VA rating of disability does not necessarily compel the [Social Security Administration (‘SSA’)] to reach an identical result, the ALJ must consider the VA’s finding in reaching his decision.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing 20 C.F.R. § 404.1504). The ALJ “must ordinarily give great weight to a VA determination of disability.” Id. In making its holding, the Ninth Circuit reasoned that the social security and VA programs are similar. See id. Indeed, the VA’s “criteria for evaluating disability are very specific and translate easily into SSA's disability framework.” Id. However, the criteria are not identical, and thus, “the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record.” Id. Confronted with the VA’s 100% disability rating, the ALJ did not give weight to the VA disability rating for two stated reasons: (1) general definitional differences between the two agencies and (2) inclusion of nonsevere conditions as part of the rating. See AR 35. As to the first reason, the ALJ noted that the definition of “disability” under the VA differs from that under the SSA. Id. at 35. Rejecting a VA disability rating because the governing rules or disability inquiries are different is not a persuasive, specific, or valid reason for rejecting a VA determination. Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010); see Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) (“Insofar as the ALJ distinguished the VA’s disability rating on the general ground that the VA and SSA disability inquiries are different, her analysis fell afoul of McCartey.”). The Court finds that the ALJ’s decision to reject the VA’s disability rating—to the extent that the definition of “disability” generally differs between the VA and the SSA—not a persuasive, specific, or valid reason for rejecting the VA’s disability determination. As to the second reason, the ALJ concluded that he did “not given any weight to the finding of ‘disability’ by the VA in part because the VA based its award, in significant part, on non-severe conditions without requiring the same degree of medical support mandated by the Social Security Administration.” AR at 35. The VA provided Plaintiff with the following ratings: 30% for hypersensitive heart disease, 50% for sleep apnea, 10% for hypertension, and 100% for PTSD. See id. 418–419. The VA explicitly noted that the VA ratings are not additive. See id. at 420. Moreover, in the PTSD evaluation section, the VA stated that “[w]e have assigned a 100 percent evaluation for your [PTSD] based on . . . [a list of the VA’s findings].” Id. at 419. Thus, it appears that the ALJ incorrectly found that the “VA based its award, in significant part, on non-severe conditions.” Id. at 35. Regardless of other “factors” provided by the ALJ that may suggest evidence in favor of the ALJ’s RFC finding, see Doc. No. 22 at 6 (quoting AR 35), the fact remains that the ALJ’s findings are tainted with legal error because of the lack of any weight provided to, or a valid reason to reject, the VA determination. The Commissioner further seeks to affirm the ALJ’s holding because “the ALJ found Plaintiff not disabled based on evidence that was ‘unavailable’ to the VA when it rendered its December 2015 decision.” Id. at 7 (citing Valentine, 574 F.3d at 695). Regardless of any success this argument may have before the ALJ, the Court finds that the ALJ did not provide this rationale as a means to give less weight to the VA rating. The Court declines the Commissioner’s invitation to conduct an ex post examination of the ALJ’s decision to infer that unavailable evidence constituted a persuasive, specific, or valid reason to give less weight to the VA determination. See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (“We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (same). Because the ALJ failed to provide a sustainable persuasive, specific, or valid reason to reject the VA’s determination and then failed to give any weight to the VA’s determination, the ALJ neglected to give the great weight required to a VA determination of disability. See McCartey, 298 F.3d at 1076. Accordingly, the ALJ made a legal error. As a result, it is not clear whether Plaintiff is disabled. This ambiguity is compounded by the fact that the ALJ attributed minimal to no weight to each cited treatment or medical opinion. See AR 33–35 (giving “negligible weight” to therapist Jane Benson’s opinions, “limited weight” to Dr. Marcie Goldman’s opinion, “no weight” to Dr. Cara Zuccarelli Eggars’s speculative statement, and “not . . . any weight” to the VA’s finding). Regardless of any potential inferred reliance on the opinions of Dr. Kevin Gregg and Dr. Preston Davis by the ALJ, compare id. at 32–33, with id. at 74, 75, 86, 88; see also Doc. No. 18-1 at 13; Doc. No. 22 at 8—neither of whom are expressly mentioned in the ALJ decision—the Court finds that the ALJ’s decision is not supported by substantial evidence and is thus incomplete without further consideration of the VA disability rating and a clearer understanding on what weight is assigned to the relied upon medical opinions. In sum, the Court finds that the ALJ’s decision is based on legal error and is not supported by substantial evidence in the record. As recommended by the Magistrate Judge, “these issues must be revisited and resolved by the ALJ on review.” Doc. No. 21 at 10. / / / / / / / / / / / / / / / / / / / / / / / / For the foregoing reasons, the Court OVERRULES the Commissioner’s objection, ADOPTS Judge Dembin’s R&R, GRANTS Plaintiff's motion for summary judgment, and DENIES the Commissioner’s cross-motion for summary judgment. Accordingly, the Court REMANDS this matter to the Social Security Administration for further administrative proceedings consistent with this Court’s Order and Judge Dembin’s R&R. The Court DIRECTS the Clerk of Court to enter judgment accordingly close the case. Dated: August 31, 2020
United States District Judge