Ignacio Vera v. Carolyn Colvin ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IGNACIO FLETES VERA, No. 14-55114
Plaintiff - Appellant, D.C. No. 2:12-cv-07078-SS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Suzanne H. Segal, Magistrate Judge, Presiding
Submitted February 9, 2016**
Pasadena, California
Before: BERZON, DAVIS***, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
Ignacio Fletes Vera challenges the decision of the Administrative Law Judge
(“ALJ”) denying his application for social security disability benefits, and asks the
court to remand his case for reconsideration before the ALJ in light of new
evidence.
1. Substantial evidence—including inconsistencies between Vera’s reports
of disability, his doctors’ findings, and his daily activities—supports the ALJ’s
finding that Vera was not fully credible. See Molina v. Astrue, 674 F.3d 1104,
1112 (9th Cir. 2012). Among other things, the ALJ relied on Dr. Martindill’s
assessment that Vera would be able to work if he received proper treatment; the
fact that Vera had worked for years after injuring his elbow; Vera’s emphasis on
his anger and desire to physically hurt others, although he has never actually
harmed anyone; Vera’s ability to manage his financial affairs; and that Vera had
never been “clinically observed to be in any acute distress.” These considerations
provide adequate support for the ALJ’s credibility finding.
2. The ALJ sufficiently explained his reasons for discounting the
Department of Veterans Affairs’ (“VA”) finding that Vera is disabled. “[A]n ALJ
must ordinarily give great weight to a VA determination of disability,” but may
“give less weight to a VA disability rating if he gives persuasive, specific, valid
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reasons for doing so that are supported by the record.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) (citation omitted).
Here, the ALJ noted that the VA relied on its regulations to resolve
reasonable doubt in Vera’s favor, see 38 C.F.R. § 4.3, which the Social Security
Administration (“SSA”) does not do. This divergence in agency procedures
represents a material difference between VA and SSA proceedings regarding the
respective evidentiary burdens borne by the applicant and the agency; it is not mere
reliance “on the general ground that the VA and SSA disability inquiries are
different.” Valentine, 574 F.3d at 695. Moreover, the ALJ explained that he
independently weighed the evidence, including the evidence from the VA doctors,
and came to a different conclusion than the VA doctors had. These explanations
were adequate under Valentine. See id.
3. The ALJ did not err in partially rejecting the findings of Dr. Wilcox, one
of Vera’s treating psychiatrists at the VA, and in considering Vera’s mental
impairments. The ALJ rejected Dr. Wilcox’s opinion regarding Vera’s ability to
obtain and maintain employment because that opinion concerned the ultimate
disability conclusion, properly left to the ALJ’s own determination. See Soc. Sec.
Ruling 96-5p. Next, the ALJ rejected portions of Dr. Wilcox’s findings to the
extent her treatment notes contained conflicting information and were premised on
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Vera’s subjective allegations, which the ALJ found were not fully credible.
Finally, the ALJ gave more weight to Dr. Martindill’s opinion regarding Vera’s
employability than he did to Dr. Wilcox’s, mostly because Dr. Martindill, unlike
Dr. Wilcox, questioned Vera’s credibility, as did the ALJ. The ALJ’s explanations
of his reasons for partially discounting Dr. Wilcox’s findings satisfy the Thomas v.
Barnhart standard. See 278 F.3d 947, 957 (9th Cir. 2002).
4. Vera has identified new, material evidence that warrants a remand to the
ALJ for reconsideration of the denial of benefits. See 42 U.S.C. § 405(g). In
February 2014, relying on some evidence that was not in the administrative record
before the agency at all, and some evidence that the first ALJ had not seen, a
second ALJ concluded that Vera was disabled as of December 22, 2010, a month
after the first ALJ’s decision finding Vera not disabled. The additional evidence,
although developed after the alleged disability period, is pertinent to that period to
the extent it sheds light on Vera’s conditions during the earlier time frame. See
Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984).
Because the two ALJs’ decisions are not “easily reconcilable,” the matter is
remanded for reconsideration in light of the additional evidence and the second
ALJ’s decision. See Luna v. Astrue, 623 F.3d 1032, 1034–35 (9th Cir. 2010).
REMANDED.
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