Jerry Valentine v. Commissioner Social Security Administration ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY C. VALENTINE, 
Plaintiff-Appellant, No. 08-35374
v.
 D.C. No.
3:07-cv-00034-KI
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
June 5, 2009—Portland, Oregon
Filed July 20, 2009
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge O’Scannlain
9231
9234 VALENTINE v. COMMISSIONER SSA
COUNSEL
Linda S. Ziskin, Lake Oswego, Oregon, argued the cause for
the appellant and filed the briefs. Martin R. Cohen, Lake
Oswego, Oregon, was also on the briefs.
Thomas M. Elsberry, Assistant Regional Counsel, Social
Security Administration, Seattle, Washington, argued the
cause for the appellee and filed the brief. Karin J. Immergut,
United States Attorney, Britannia I. Hobbs, Assistant United
States Attorney, and David Morado, Regional Chief Counsel,
Social Security Administration, Seattle, Washington, were
also on the brief.
VALENTINE v. COMMISSIONER SSA 9235
OPINION
O’SCANNLAIN, Circuit Judge:
We must determine the circumstances under which the
Social Security Administration can find that a claimant for
disability insurance benefits is not disabled despite a contrary
finding by the Department of Veterans Affairs.
I
Jerry Valentine filed an application with the Social Security
Administration (“SSA”) for Social Security disability insur-
ance benefits in March 2005. He alleged disability beginning
the previous year. A former member of the Navy, Valentine
suffered a combat head injury in Vietnam in 1969. Since then,
he has held several jobs, most recently as a “parts man” for
a diesel engine distributor called Cummins Northwest Incor-
porated. In March 2004, he retired from Cummins.
Valentine complains of post-traumatic stress disorder
(“PTSD”), a combination of depression and sleep deprivation
(sometimes referred to in the record as cognitive disorder sec-
ondary sleep deprivation), and degenerative joint disease in
his right shoulder and left knee. The PTSD resulted from Val-
entine’s head injury in Vietnam, but it appears to have wors-
ened significantly in the wake of the death of his brother from
a head injury in the summer of 2000. Valentine received treat-
ment for the PTSD and for sleep disturbance and persistent
nightmares at the Veterans Administration Medical Center in
Portland, Oregon, from September of 2000 through the date
of the hearing before the Administrative Law Judge (“ALJ”).
While undergoing sleep therapy in 2001, Valentine began
treatment with Dr. Lynn M. Van Male. At the time, Valentine
reported that he got a good night’s sleep about three days out
of each week. Valentine’s performance at work was erratic;
9236 VALENTINE v. COMMISSIONER SSA
he received several “marginal” performance ratings on his
annual job review in February 2002.
Dr. Van Male referred Valentine to Dr. Daniel Storzbach
for a neuropsychological assessment. The results “suggested
average baseline cognitive ability”; performance on some of
the specific tests indicated “normal limits or better.” How-
ever, other tests indicated impaired performance with respect
to attention, working memory, and complex pyschomotor
function. Dr. Storzbach seemed to attribute these difficulties
to the exacerbation of Valentine’s PTSD symptoms following
his brother’s death. He recommended several ways to cope
and noted that Valentine would probably have less difficulty
with “highly routinized, over-learned tasks with low cognitive
demand.”
Meanwhile, Valentine, with Dr. Van Male’s help, tried to
increase his disability rating, which then stood at 30 percent,
from the Department of Veterans Affairs (“VA”). In a letter
to the VA written in May 2002, Dr. Van Male stated that Val-
entine had tried to hold down his job “at significant cost to
himself,” but that she worried about his ability to maintain
employment “given his current rate of functional decline.” At
the time, Valentine was reporting increased mental stability at
work and at home (for example, he was able to garden with
his wife), despite his sleeping problems. The VA raised his
disability rating to 70 percent.
Though difficulties persisted during 2003, Valentine man-
aged them reasonably well. He continued to work and paid off
credit card and truck loan debts. His performance review in
January 2003 was positive, his ratings being in the “accept-
able” to “commendable” range. Whether because his fatigue
and associated ailments became too much for him or because
he became eligible to receive his employee pension, Valentine
planned to retire in March 2004.
VALENTINE v. COMMISSIONER SSA 9237
Things improved as Valentine’s planned retirement date
approached. He received positive reviews in February from
his supervisor, Lane Anthony. Anthony praised Valentine’s
attitude as “outstanding,” called him “a wonderful asset to the
company’s front counter,” and noted improvement in his
work product.1 Valentine assured company executives that he
was ready and willing to retire, despite their offers of a short-
ened or split shift, because he believed it was in his best inter-
ests. After his retirement, Valentine’s condition continued to
improve as he exercised and took up projects to keep busy. He
even stopped regular visits with Dr. Van Male in November
2004.
Valentine requested another increase in his disability rating
from the VA. Dr. Leslie Carter interviewed him in October
2004 and found “well-documented” Valentine’s assertion that
his nightmares and sleep deprivation were “extremely dis-
abling.” Dr. Carter, however, was under the impression that
Valentine had quit working at Cummins because he was about
to be fired. Initially the VA did not act, despite Dr. Carter’s
report. But after Dr. Van Male sent further letters in 2005 and
2006, the VA ultimately raised Valentine’s disability rating to
100 percent.
In addition to his PTSD, Valentine sustained two physical
injuries in 2005. He tore some cartilage in his shoulder and
damaged his left knee. He underwent surgery for both inju-
ries. In September 2005, two months before surgery on his
knee, Valentine took a physical examination, which did not
suggest any significant physical impairment.
Several psychologists, including a Dr. Peter LeBray,
reviewed Valentine’s medical record on behalf of the SSA.
The ALJ considered this evidence, along with the rest of Val-
1
Anthony would later submit a letter to the SSA stating that he only
gave Valentine positive performance reports because he pitied him and
because he felt “there was no reason to kick a man on his way out.”
9238 VALENTINE v. COMMISSIONER SSA
entine’s file, at a hearing in March of 2006. Ultimately, the
ALJ decided that Valentine was not disabled and denied him
benefits. The Appeals Council declined review, making the
ALJ’s decision the final decision of the Commissioner. Val-
entine filed a civil action in the district court to obtain judicial
review of the agency’s decision. The district court affirmed
the denial of benefits, and Valentine now appeals.
II
To establish eligibility for Social Security disability bene-
fits, a claimant has the burden to prove he is disabled. See
Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995).
Like most Social Security cases, this case involves the
agency’s five-step procedure for determining disability. See
20 C.F.R. § 404.1520(a)(4)(i)-(v); see also Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). The ALJ’s
decision turned on her conclusion at step five. While the
claimant has the burden of proof at steps one through four,
“the burden of proof shifts to the [Commissioner]” at step five
“to show that the claimant can do other kinds of work.”
Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). To
direct this inquiry, the Commissioner, through the ALJ, must
determine the claimant’s “residual functional capacity,” a
summary of what the claimant is capable of doing (for exam-
ple, how much weight he can lift). The ALJ may, and did
here, pose to a vocational expert a hypothetical incorporating
the residual functional capacity determination (“RFC”); the
expert then opines on what kind of work someone with the
limitations of the claimant could hypothetically do. See Rob-
erts, 66 F.3d at 184. The ALJ must then determine whether,
given the claimant’s RFC, age, education, and work experi-
ence, he actually can find some work in the national economy.
See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999);
20 C.F.R. § 404.1520(a)(4)(v).
We “review[ ] the district court’s order affirming the [Com-
missioner]’s denial of benefits de novo . . . to ensure that the
VALENTINE v. COMMISSIONER SSA 9239
[Commissioner]’s decision was supported by substantial evi-
dence and a correct application of the law.” Roberts, 66 F.3d
at 182 (internal citation omitted). This is a highly deferential
standard of review: “ ‘Substantial evidence’ means more than
a mere scintilla, but less than a preponderance. It means such
relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” Desrosiers v. Sec’y of Health
& Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (internal
quotation marks and citations omitted).
III
Before reviewing the details of the ALJ’s decision, we must
dispose of a threshold issue. Valentine alleges that the ALJ
denied him due process “because of the ALJ’s attitude and
demeanor.” He claims that several of the ALJ’s pointed ques-
tions and expressions of disbelief made the administrative
hearing less than full and fair.
[1] Valentine does not allege that the ALJ was biased
against him. Instead, he merely suggests that the ALJ had pre-
judged his case in some way. We can find no legal authority
for the proposition that general preconceptions that do not
amount to bias violate the Due Process Clause.
[2] Even if we construe Valentine’s complaint to allege
actual bias, he has mustered no evidence that comes close to
the required showing. ALJs are presumed to be unbiased. Rol-
lins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Such
presumption “can be rebutted by a showing of conflict of
interest or some other specific reason for disqualification.
. . . But expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect
men and women sometimes display[,] do not establish bias.”
Id. at 857-58 (internal quotation marks omitted). That the ALJ
questioned some of Valentine’s arguments and the perspec-
tive of some of those who treated him plainly does not show
bias in this sense.
9240 VALENTINE v. COMMISSIONER SSA
IV
We proceed to Valentine’s more specific objections, the
first of which concerns the RFC. Valentine contends that the
ALJ did not take account of all his limitations in fashioning
the RFC. The hypothetical an ALJ poses to a vocational
expert, which derives from the RFC, “must set out all the lim-
itations and restrictions of the particular claimant.” Embrey,
849 F.2d at 422. Thus, an RFC that fails to take into account
a claimant’s limitations is defective.
Valentine’s objections to the RFC can be divided into two
categories. He argues that the ALJ ignored some and improp-
erly rejected other evidence of the extent of his impairments.
A
The ALJ concluded that Valentine “has the residual func-
tional capacity to perform a limited range of medium exertion
work.” Specifically, the RFC reads:
[Valentine] is able to lift up to 50 pounds. He is able
to sit at least six hours out of an eight hour workday.
He is able to stand at least six hours out of an eight
hour workday. He is able to perform postural activi-
ties frequently. He has moderate restrictions of his
capacity to concentrate, interact with the public, and
carry out detailed work instructions. Moderate is
defined as limited but satisfactory.
We first consider whether this evaluation ignored three pieces
of medical evidence.
1
First, Valentine points to the report of Dr. LeBray, one of
the psychologists who reviewed Valentine’s medical record
on behalf of the SSA. Dr. LeBray stated that Valentine needed
VALENTINE v. COMMISSIONER SSA 9241
“simple, paced (unrushed) tasks/routines without close public
interaction.” Valentine claims that this limits him to “simple”
work, whereas the RFC limits him to “medium exertion
work.”
[3] However, Dr. LeBray submitted a more in-depth “Men-
tal Residual Functional Capacity Assessment,” which makes
it clear that he did not intend to limit Valentine strictly to sim-
ple work, as that term is understood in the parlance of the
SSA. The assessment describes Valentine as “[m]oderately
[l]imited” in four of twenty categories of mental activity and
“[n]ot [s]ignificantly [l]imited” in the other sixteen. The four
categories of moderate limitation were: “ability to carry out
detailed instructions”; “ability to maintain attention and con-
centration for extended periods”; “ability to interact appropri-
ately with the general public”; and “ability to set realistic
goals or make plans independently.” The first three limita-
tions apply to functional capacity; they appear almost verba-
tim in the RFC.
[4] Thus, we cannot conclude that the RFC ignores Dr.
LeBray’s medical evaluation.
2
Valentine also claims the ALJ ignored or contradicted Dr.
Storzbach’s neuropsychological assessment.
[5] Dr. Storzbach summarized his assessment in several
distinct sections. One section, titled “Impression,” states that
the “[n]europsychological assessment suggested average
baseline cognitive ability. Performance on many tests was
within normal limits or better . . . . Results of some tests indi-
cated variably impaired performance on measures of atten-
tion, working memory, and complex psychomotor function.”
There is also a more detailed summary of the test results,
which notes that “the patient’s pattern of moderately impaired
initial presentation performance on verbal memory tests sug-
9242 VALENTINE v. COMMISSIONER SSA
gested deficient attention.” With respect to “[d]urability of
memory for newly learned information during distraction,”
“multiple measures derived from this test rang[ed] from nor-
mal to impaired.” These findings suggest some moderate
neuropsychological impairments. As such, they are consistent
with the RFC, which included “moderate [(meaning “limited
but satisfactory”)] restrictions of [Valentine’s] capacity to
concentrate, interact appropriately with the public, and carry
out detailed instructions.” Once again, the RFC actually incor-
porated the evidence that Valentine argues it ignored.
[6] Valentine asserts, however, that Dr. Storzbach also lim-
ited him to “highly routinized, overlearned tasks with low
cognitive demand.” To be sure, the doctor noted that Valen-
tine “is less likely to have difficulty with [such tasks].” But
this notation appeared in a section of Dr. Storzbach’s report
entitled “Recommendations.” Nowhere in this section does
Dr. Storzbach indicate that Valentine is incapable of working
except under the recommended conditions. Indeed, he pointed
out that Valentine’s “mostly normal test performance with
multiple cognitive strengths suggests that [he] is capable of at
least partially compensating for his deficits.” Thus, we agree
with the SSA that Dr. Storzbach’s observation about “highly
routinized, overlearned tasks with low cognitive demand” is
neither a diagnosis nor statement of Valentine’s functional
capacity. It is rather a recommended way for Valentine to
cope with his PTSD symptoms. The ALJ therefore did not err
by excluding it from the RFC.
[7] In sum, we cannot say that the ALJ ignored evidence of
Valentine’s impairments when she fashioned his RFC.2
2
We also reject Valentine’s argument regarding the omission of his cer-
vical and lumbar spine injuries and knee and shoulder injuries from the
RFC.
The cervical and lumbar spine injuries dated from Valentine’s service
in Vietnam. The record reveals no indication that they caused Valentine
problems after March 30, 2004, the date that the alleged disability began.
VALENTINE v. COMMISSIONER SSA 9243
B
Valentine also argues that the ALJ improperly rejected
other evidence regarding the extent of his ailments: Dr. Van
Male’s testimony, his own testimony, and his wife’s testi-
mony.
Our Social Security precedents have developed a highly
articulated set of standards for reviewing an ALJ’s decision to
reject different types of testimony. We take each piece of tes-
timony separately, as each invokes a different standard.
1
There are three types of medical opinions in social security
cases: those from treating physicians, examining physicians,
and non-examining physicians. Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). Where a treating or examining physi-
cian’s opinion is contradicted by another doctor, the “[Com-
missioner] must determine credibility and resolve the
conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir.
2002) (internal quotation marks omitted). However, to reject
the opinion of a treating physician “in favor of a conflicting
opinion of an examining physician[,]” an ALJ still must
“make[ ] findings setting forth specific, legitimate reasons for
doing so that are based on substantial evidence in the record.”
Id. at 957 (internal quotation marks omitted).
[8] Valentine objects to the ALJ’s rejection of the opinion
of Dr. Van Male, who was Valentine’s treating psychologist.
As for the knee and shoulder injuries, Valentine does not explain his
contention that the ALJ did not account for these impairments. The ALJ
concluded at Step 2 that they were severe, and the RFC includes several
physical limitations. Valentine does not detail what other physical limita-
tions follow from the evidence of his knee and should injuries, besides the
limitations already listed in the RFC. We reject any invitation to find that
the ALJ failed to account for Valentine’s injuries in some unspecified
way.
9244 VALENTINE v. COMMISSIONER SSA
The ALJ gave more weight to Dr. Storzbach’s neuropsy-
chological evaluation, as well as to the functional capacity
evaluation of Dr. LeBray. Indeed, as we explain above, supra
at 9240-42, the RFC clearly reflects the influence of Drs.
Storzbach and LeBray, who both concluded that Valentine
had various moderate limitations. Furnished with the contra-
dictory opinion of an examining psychologist (Dr. Storzbach),
the ALJ must have provided “specific and legitimate reasons
that are supported by substantial evidence in the record,” for
rejecting Dr. Van Male’s opinion. Lester, 81 F.3d at 830.
[9] We believe the ALJ met this standard. She identified a
contradiction in Dr. Van Male’s opinion, in that the doctor
“repeatedly reported [Valentine] was unemployable while
acknowledging he was continuing to work full-time.” The
ALJ also noted evidence in the record, including Dr. Van
Male’s “own treatment progress reports” that showed Valen-
tine’s “improved functioning at work and encouraging com-
ments he received from company officials.” This record
evidence was consistent with the opinions of Drs. Storzbach
and LeBray. Thus, the ALJ rejected Dr. Van Male’s opinion
for specific and legitimate reasons supported by substantial
evidence.
2
Valentine makes a brief argument that the ALJ improperly
rejected his own testimony about his pain and fatigue. He
states that the ALJ’s “reasons for rejection are based largely
on factual inaccuracies” and that his statements are consistent
and corroborated by lay witness testimony.
Under our case law,
[w]ithout affirmative evidence showing that the
claimant is malingering, the Commissioner’s reasons
for rejecting the claimant’s testimony must be clear
and convincing. If an ALJ finds that a claimant’s tes-
VALENTINE v. COMMISSIONER SSA 9245
timony relating to the intensity of his pain and other
limitations is unreliable, the ALJ must make a credi-
bility determination citing the reasons why the testi-
mony is unpersuasive. The ALJ must specifically
identify what testimony is credible and what testi-
mony undermines the claimant’s complaints. In this
regard, questions of credibility and resolutions of
conflicts in the testimony are functions solely of the
Secretary.
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599
(9th Cir. 1999) (citations omitted).
As there was no evidence of malingering, the ALJ had to
explain why she did not find Valentine’s subjective conten-
tions about his limitations to be persuasive. The ALJ deter-
mined that Valentine “demonstrated better abilities than he
acknowledged in his written statements and testimony” and
that his “non-work activities . . . are inconsistent with the
degree of impairment he alleges.” Much as the ALJ did in
Morgan, the ALJ here “pointed to specific evidence in the
record,” id. at 599, that undermined Valentine’s claims that
his PTSD was so severe he was unable to work. While she
recognized that “the treatment and employment records reveal
that [Valentine] struggled in his traditional work” and that
“[h]is job performance clearly suffered substantially,” the
ALJ observed that the same records witnessed Valentine’s
ability “to rally and improve his functioning.” In addition, the
ALJ remarked on the fact that Valentine exercised and under-
took several projects after he retired, including gardening and
community activities. The ALJ recognized that this evidence
did not suggest Valentine could return to his old job at Cum-
mins, but she thought it did suggest that Valentine’s later
claims about the severity of his limitations were exaggerated.
[10] We conclude that, in light of Valentine’s conclusory
argument, the ALJ provided clear and convincing reasons to
reject his subjective complaint testimony. The ALJ identified
9246 VALENTINE v. COMMISSIONER SSA
evidence that “undermine[d] [Valentine’s] complaints,” id. at
599, and found such evidence credible. This evidence directly
contradicted Valentine’s contentions about how debilitating
his fatigue was. Thus, we conclude that the ALJ’s resolution
between conflicting evidence provided a clear and convincing
reason to reject Valentine’s subjective testimony.
3
Valentine also argues that the ALJ did not sufficiently jus-
tify her rejection of the testimony of his wife, Tamara Valen-
tine, and of Lane Anthony, his supervisor at Cummins during
2003 and 2004. When an ALJ discounts the testimony of lay
witnesses, “he [or she] must give reasons that are germane to
each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.
1993).
[11] Mrs. Valentine’s testimony of her husband’s fatigue
was similar to Valentine’s own subjective complaints. Unsur-
prisingly, the ALJ rejected this evidence based, at least in
part, on “the same reasons [she] discounted [Valentine’s] alle-
gations.” In light of our conclusion that the ALJ provided
clear and convincing reasons for rejecting Valentine’s own
subjective complaints, and because Ms. Valentine’s testimony
was similar to such complaints, it follows that the ALJ also
gave germane reasons for rejecting her testimony.
[12] The ALJ also relied in part on two facts quite common
to spouses: that Mrs. Valentine, as Valentine’s wife, was an
interested party, and that she never saw him at work. Such a
broad rationale for rejection contradicts our insistence that,
regardless of whether they are interested parties, “friends and
family members in a position to observe a claimant’s symp-
toms and daily activities are competent to testify as to [his or]
her condition.” Dodrill, 12 F.3d at 918-19. Although spouses
usually do not observe each other at work, they do usually
observe each other at home. Thus, insofar as the ALJ relied
VALENTINE v. COMMISSIONER SSA 9247
on characteristics common to all spouses, she ran afoul of our
precedents.
This does not mean an ALJ must accept the testimony of
a spouse who knows little about a claimant’s functional
capacity. But the ALJ must explain such ignorance in the
individual case. Similarly, evidence that a specific spouse
exaggerated a claimant’s symptoms in order to get access to
his disability benefits, as opposed to being an “interested
party” in the abstract, might suffice to reject that spouse’s tes-
timony. In any event, the error was harmless in this case.
Nonetheless, we remind ALJs to tie the reasoning of their
credibility determinations to the particular witnesses whose
testimony they reject.
[13] Finally, we address the ALJ’s rejection of the letter of
Lane Anthony, Valentine’s supervisor, retracting the glowing
employee reviews he wrote in Valentine’s last days as an
employee at Cummins. Anthony claimed he lied for Valentine
out of pity. But the ALJ found it more likely that Anthony’s
professed sympathy for Valentine explained his desire to pres-
ent him in the best light at the administrative hearing. After
all, the ALJ reasoned, Anthony is no longer responsible to
Cummins to provide truthful reports, as he was when she
penned the performance reviews. Of course, Anthony was
also under a responsibility not to misrepresent facts to the
ALJ. Nonetheless, as between two contradictory characteriza-
tions of Valentine’s work performance, the ALJ provided a
reason germane to the witness for relying on the original per-
formance reviews.
C
[14] We conclude that, in fashioning the RFC, the ALJ nei-
ther improperly rejected nor ignored evidence. Therefore, the
ALJ properly relied on the vocational expert’s responses to
the hypothetical, which reflected the RFC.
9248 VALENTINE v. COMMISSIONER SSA
V
Valentine’s final argument presents us with a novel issue.
While his case was pending before the ALJ, the VA rated
Valentine 100 percent disabled. He argues that the ALJ ought
to have accepted such rating as determinative here.
[15] We have held that “an ALJ must ordinarily give great
weight to a VA determination of disability.” McCartey v.
Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (reversing a
denial of benefits because the ALJ “failed to consider the VA
finding and did not mention it in his opinion”). Nevertheless,
“[b]ecause the VA and SSA criteria for determining disability
are not identical,” we have allowed an ALJ to “give less
weight to a VA disability rating if he gives persuasive, spe-
cific, valid reasons for doing so that are supported by the
record.” Id. Unlike the ALJ in McCartey, the ALJ here con-
sidered, but rejected, the VA’s disability finding. Thus, we
must decide whether the ALJ met McCartey’s standard for
doing so: “persuasive, specific, valid reasons . . . supported by
the record.”
The ALJ discussed the VA’s disability rating in her evalua-
tion of Dr. Van Male’s opinion that Valentine was unemploy-
able:
The doctor’s advocacy efforts helped the claimant
gain an initial increase in [ ] his disability percentage
rating in 2004 and eventually gain a 100 percent rat-
ing . . . . While the VA unemployability rating
resembles the Social Security disability standard in
some respects, the non-critical decision made by the
VA Decision Review Officer in May 2006 (granting
a 100 percent disability rating and obviating the
unemployability determination), was not an unem-
ployability assessment and was not based on a com-
prehensive evaluation of the evidence available to
the undersigned [ALJ].
VALENTINE v. COMMISSIONER SSA 9249
We discern two parts to this explanation. The ALJ first sug-
gests that the decision of the VA to grant 100 percent disabil-
ity, as opposed to ruling on unemployability, is not relevant
to a Social Security disability rating. This contradicts
McCartey, which explicitly relied on “the marked similarity
between [the disability programs of the VA and of the SSA].”
298 F.3d at 1076. 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 ALJ did, however, offer a second reason not to follow
the VA. She stated that the VA’s determination “was not
based on a comprehensive evaluation of the evidence avail-
able to [her].” This explanation appeared in the same para-
graph in which the ALJ justified her decision to discredit Dr.
Van Male’s opinion. It is clear to us, therefore, that the ALJ
was referring to the fact that the VA rested on an opinion that
the ALJ rejected.
Dr. Van Male’s opinion and Dr. Carter’s evaluation were
important parts of the record before the VA. We have con-
cluded, supra at 9243-44, that the ALJ provided “specific and
legitimate reasons that are supported by substantial evidence
in the record,” Lester, 81 F.3d at 830, for rejecting Dr. Van
Male’s opinion. Valentine did not challenge the ALJ’s rejec-
tion of Dr. Carter’s opinion, which the parties agree relied on
inaccurate information. Furthermore, the ALJ benefited from
the opinions of the agency psychologists, evidence of Valen-
tine’s work history and post-retirement activities, and the
input of the vocational expert.
[16] The ALJ was justified in rejecting the VA’s disability
rating on the basis that she had evidence the VA did not,
which undermined the evidence the VA did have. In other
words, even though the VA and the SSA both determine
whether someone is disabled, here the latter had evidence
unavailable to the former. We thus conclude that, on this
9250 VALENTINE v. COMMISSIONER SSA
record, the acquisition of new evidence or a properly justified
reevaluation of old evidence constitutes a “persuasive, spe-
cific, and valid reason[ ] . . . supported by the record” under
McCartey for according little weight to a VA disability rating.
VI
For the foregoing reasons, we AFFIRM the judgment of the
district court.