Rashaad v. Saul ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEMETRIUS RASHAAD, Case No. 19-cv-1126-MMA (MDD) 12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION; GRANTING PLAINTIFF’S MOTION FOR 14 ANDREW M. SAUL, Commissioner of SUMMARY JUDGMENT; DENYING Social Security, 15 COMMISSIONER’S CROSS- Defendant. MOTION FOR SUMMARY 16 JUDGMENT; REMANDING 17 ACTION TO SOCIAL SECURITY ADMINISTRATION 18 19 [Doc. Nos. 15, 18, 21] 20 21 On June 17, 2019, Demetrius Rashaad (“Plaintiff”) filed this social security appeal 22 challenging the denial of his application for disability insurance benefits. See Doc. No. 1 23 ¶¶ 6, 7, 9.1 The Court referred all matters arising in this social security appeal to the 24 assigned Magistrate Judge for report and recommendation (“R&R”) pursuant to Section 25 26 27 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 1 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1. See Doc. No. 9. The parties filed 2 cross-motions for summary judgment. See Doc. Nos. 15, 18. The Magistrate Judge has 3 issued a R&R recommending that the Court remand the case for further administrative 4 action to determine whether Plaintiff is disabled. See Doc. No. 21. Andrew M. Saul, 5 Commissioner of Social Security, (“Commissioner”) objected to the R&R, and Plaintiff 6 replied. See Doc. Nos. 22, 23. Upon due consideration and for the reasons set forth 7 below, the Court OVERRULES the Commissioner’s objection, ADOPTS Judge 8 Dembin’s R&R, GRANTS Plaintiff’s motion for summary judgment, and DENIES the 9 Commissioner’s cross-motion for summary judgment. The Court REMANDS this 10 matter to the Social Security Administration for further administrative proceedings 11 consistent with this Court’s Order and Judge Dembin’s R&R. 12 I. BACKGROUND 13 Seeking judicial review to challenge the denial of his application for disability 14 insurance benefits, Plaintiff filed the present action pursuant to 42 U.S.C. § 405(g). See 15 Doc. No. 1 ¶ 3. Plaintiff moved for summary judgment, arguing that “[t]he ALJ failed to 16 articulate persuasive, specific, valid reasons for rejecting [Plaintiff’s] 100% disability 17 rating.” Doc. No. 15-1 at 8. The Commissioner filed a cross-motion for summary 18 judgment, arguing that the Court should affirm the ALJ’s decision because “it is 19 supported by substantial evidence and free from material or reversible legal error.” Doc. 20 No. 18-1 at 18. 21 The Magistrate Judge issued an R&R on the parties’ cross motions for summary 22 judgment, in which he recommends that the case be remanded to the ALJ for further 23 analysis. See Doc. No. 21 at 1, 10. The Magistrate Judge found that “the ALJ assigned 24 little to no weight to every examining or treating medical opinion cited by him.” Id. at 9. 25 The Magistrate Judge noted that “it is not clear what medical opinion supported the 26 ALJ’s determination of Plaintiff’s [RFC].” Id. at 10. The Magistrate Judge found that 27 “[t]his ambiguity combined with the lack of a supporting testifying medical expert 28 suggests that the ALJ’s RFC assessment is not supported by substantial evidence in the 1 record.” Id. Thus, without further findings, the Magistrate Judge determined “[i]t is not 2 apparent to the Court that Plaintiff is or is not disabled without additional findings.” Id. 3 The Commissioner now objects to the Magistrate Judge’s R&R. See Doc. No. 22. 4 II. LEGAL STANDARD 5 The duties of the district court in connection with a magistrate judge’s report and 6 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 7 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “[a] judge of the [district] 8 court shall make a de novo determination of those portions of the [R&R] to which 9 objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 10 (1985). A district judge may “accept, reject, or modify, in whole or in part, the findings 11 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also 12 Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). 13 III. DISCUSSION 14 The Commissioner objects to the Magistrate Judge’s R&R because the ALJ 15 “provided legally valid reasons supported by substantial evidence for rejecting the [VA] 16 rating of 100 percent disability based on post-traumatic stress disorder (PTSD), and for 17 ultimately finding that Plaintiff did not prove he was further restricted mentally than 18 assessed by the Commissioner.” Doc. No. 22 at 2. In response to the Magistrate Judge’s 19 findings that “the ALJ assigned little to no weight to every examining or treating medical 20 opinion cited by him” and “it is not clear what medical opinion supported the ALJ’s 21 determination of Plaintiff’s [RFC],” Doc. No. 21 at 9, 10, the Commissioner asserts that 22 “it may be inferred that the ALJ gave weight to Drs. Gregg’s and Davis’s opinions of 23 ‘simple work tasks; can interact with supervisors and coworkers; limited contact with the 24 general public; can adapt to a work setting that is not fast paced’ as a basis for [the ALJ’s 25 RFC] finding.” Doc. No. 22 at 8 (quoting AR 32–33). 26 Rebutting the Commissioner’s argument that the ALJ’s RFC finding is supported 27 by inferred reliance on Dr. Gregg’s and Dr. Davis’s evaluations, Plaintiff argues 28 inference is insufficient. See Doc. No. 23 at 2. Plaintiff argues that the ALJ “never drew 1 a nexus between the supposed broad range of evidence that found consistency with the 2 opinions of” the two doctors. Id. at 4. Plaintiff further claims the ALJ relied upon 3 speculative rationale without reliance on evidence in the record. See id. at 5. 4 Additionally, Plaintiff argues that the ALJ erred in thinking that “the 100% disability 5 rating was the combined total from other impairments such as hypertension, sleep 6 apnea[,] and hypertensive heart disease.” Id. at 6. 7 The Ninth Circuit has held that “although a VA rating of disability does not 8 necessarily compel the [Social Security Administration (‘SSA’)] to reach an identical 9 result, the ALJ must consider the VA’s finding in reaching his decision.” McCartey v. 10 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing 20 C.F.R. § 404.1504). The ALJ 11 “must ordinarily give great weight to a VA determination of disability.” Id. In making 12 its holding, the Ninth Circuit reasoned that the social security and VA programs are 13 similar. See id. Indeed, the VA’s “criteria for evaluating disability are very specific and 14 translate easily into SSA's disability framework.” Id. However, the criteria are not 15 identical, and thus, “the ALJ may give less weight to a VA disability rating if he gives 16 persuasive, specific, valid reasons for doing so that are supported by the record.” Id. 17 Confronted with the VA’s 100% disability rating, the ALJ did not give weight to the VA 18 disability rating for two stated reasons: (1) general definitional differences between the 19 two agencies and (2) inclusion of nonsevere conditions as part of the rating. See AR 35. 20 As to the first reason, the ALJ noted that the definition of “disability” under the 21 VA differs from that under the SSA. Id. at 35. Rejecting a VA disability rating because 22 the governing rules or disability inquiries are different is not a persuasive, specific, or 23 valid reason for rejecting a VA determination. Berry v. Astrue, 622 F.3d 1228, 1236 (9th 24 Cir. 2010); see Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) 25 (“Insofar as the ALJ distinguished the VA’s disability rating on the general ground that 26 the VA and SSA disability inquiries are different, her analysis fell afoul of McCartey.”). 27 The Court finds that the ALJ’s decision to reject the VA’s disability rating—to the extent 28 1 that the definition of “disability” generally differs between the VA and the SSA—not a 2 persuasive, specific, or valid reason for rejecting the VA’s disability determination. 3 As to the second reason, the ALJ concluded that he did “not given any weight to 4 the finding of ‘disability’ by the VA in part because the VA based its award, in 5 significant part, on non-severe conditions without requiring the same degree of medical 6 support mandated by the Social Security Administration.” AR at 35. The VA provided 7 Plaintiff with the following ratings: 30% for hypersensitive heart disease, 50% for sleep 8 apnea, 10% for hypertension, and 100% for PTSD. See id. 418–419. The VA explicitly 9 noted that the VA ratings are not additive. See id. at 420. Moreover, in the PTSD 10 evaluation section, the VA stated that “[w]e have assigned a 100 percent evaluation for 11 your [PTSD] based on . . . [a list of the VA’s findings].” Id. at 419. Thus, it appears that 12 the ALJ incorrectly found that the “VA based its award, in significant part, on non-severe 13 conditions.” Id. at 35. 14 Regardless of other “factors” provided by the ALJ that may suggest evidence in 15 favor of the ALJ’s RFC finding, see Doc. No. 22 at 6 (quoting AR 35), the fact remains 16 that the ALJ’s findings are tainted with legal error because of the lack of any weight 17 provided to, or a valid reason to reject, the VA determination. The Commissioner further 18 seeks to affirm the ALJ’s holding because “the ALJ found Plaintiff not disabled based on 19 evidence that was ‘unavailable’ to the VA when it rendered its December 2015 decision.” 20 Id. at 7 (citing Valentine, 574 F.3d at 695). Regardless of any success this argument may 21 have before the ALJ, the Court finds that the ALJ did not provide this rationale as a 22 means to give less weight to the VA rating. The Court declines the Commissioner’s 23 invitation to conduct an ex post examination of the ALJ’s decision to infer that 24 unavailable evidence constituted a persuasive, specific, or valid reason to give less weight 25 to the VA determination. See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 26 (“We review only the reasons provided by the ALJ in the disability determination and 27 may not affirm the ALJ on a ground upon which he did not rely.”); Orn v. Astrue, 495 28 F.3d 625, 630 (9th Cir. 2007) (same). 1 Because the ALJ failed to provide a sustainable persuasive, specific, or valid 2 reason to reject the VA’s determination and then failed to give any weight to the VA’s 3 determination, the ALJ neglected to give the great weight required to a VA determination 4 of disability. See McCartey, 298 F.3d at 1076. Accordingly, the ALJ made a legal error. 5 As a result, it is not clear whether Plaintiff is disabled. This ambiguity is compounded by 6 the fact that the ALJ attributed minimal to no weight to each cited treatment or medical 7 opinion. See AR 33–35 (giving “negligible weight” to therapist Jane Benson’s opinions, 8 “limited weight” to Dr. Marcie Goldman’s opinion, “no weight” to Dr. Cara Zuccarelli 9 Eggars’s speculative statement, and “not . . . any weight” to the VA’s finding). 10 Regardless of any potential inferred reliance on the opinions of Dr. Kevin Gregg and Dr. 11 Preston Davis by the ALJ, compare id. at 32–33, with id. at 74, 75, 86, 88; see also Doc. 12 No. 18-1 at 13; Doc. No. 22 at 8—neither of whom are expressly mentioned in the ALJ 13 decision—the Court finds that the ALJ’s decision is not supported by substantial 14 evidence and is thus incomplete without further consideration of the VA disability rating 15 and a clearer understanding on what weight is assigned to the relied upon medical 16 opinions. 17 In sum, the Court finds that the ALJ’s decision is based on legal error and is not 18 supported by substantial evidence in the record. As recommended by the Magistrate 19 Judge, “these issues must be revisited and resolved by the ALJ on review.” Doc. No. 21 20 at 10. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 For the foregoing reasons, the Court OVERRULES the Commissioner’s 3 ||objection, ADOPTS Judge Dembin’s R&R, GRANTS Plaintiff's motion for summary 4 ||judgment, and DENIES the Commissioner’s cross-motion for summary judgment. 5 ||Accordingly, the Court REMANDS this matter to the Social Security Administration for 6 ||further administrative proceedings consistent with this Court’s Order and Judge 7 ||Dembin’s R&R. The Court DIRECTS the Clerk of Court to enter judgment accordingly 8 close the case. 9 IT IS SO ORDERED. 10 11 ||Dated: August 31, 2020 12 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28