United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING THE COMMISSIONER'S
DECISION TO DENY BENEFITS
W. Christel, United States Magistrate Judge
Christopher L. Dodson filed this action, pursuant to 42
U.S.C. § 405(g), for judicial review of Defendant's
denial of his application for disability insurance benefits
(“DIB”). Pursuant to 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the
parties have consented to have this matter heard by the
undersigned Magistrate Judge. See Dkt. 6.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) failed to
properly consider the Veterans Affairs (“VA”)
Rating Decision (“VA Rating”). Had the ALJ
properly considered the VA Rating, the ALJ may have
determined Plaintiff was disabled or the residual functional
capacity (“RFC”) may have included additional
limitations. Therefore, the ALJ's error is harmful and
this matter is reversed and remanded pursuant to sentence
four of 42 U.S.C. § 405(g) to the Acting Commissioner of
Social Security (“Commissioner”) for further
proceedings consistent with this Order.
AND PROCEDURAL HISTORY
March 11, 2013, Plaintiff filed an application for DIB,
alleging disability as of November 1, 2007. See Dkt.
10, Administrative Record (“AR”) 685. The
application was denied upon initial administrative review and
on reconsideration. See AR 685. Hearings were held
before ALJ Robert P. Kingsley in January and April of 2014.
AR 36-73. ALJ Kingsley found Plaintiff not disabled. AR
17-31. The Appeals Council denied Plaintiff's
administrative appeal, making the ALJ's opinion the final
decision of the Commissioner. See AR 1-6. Plaintiff
appealed to the United States District Court for the Western
District of Washington, which remanded the case for further
proceedings. See AR 817-34; Dodson v.
Colvin, 3:15-CV-04144-JRC (W.D. Wash., Sept. 30, 2015).
remand, Plaintiff received a second hearing before ALJ
Cynthia D. Rosa. AR 742-82. At the hearing, Plaintiff amended
his alleged onset date to April 1, 2009. AR 746. On November
23, 2016, ALJ Rosa found Plaintiff not disabled. AR 685-702.
Plaintiff did not file written exceptions with the Appeals
Council, making the November 23, 2016 decision the final
decision of the Commissioner. See AR 682. Plaintiff
now appeals the ALJ Rosa's November 23, 2016
Opening Brief, Plaintiff maintains the ALJ failed to provide:
(1) specific, persuasive, valid reasons for rejecting the VA
Rating; (2) clear and convincing reasons for finding
Plaintiff is not as limited as he testified; and (3) germane
reasons for rejecting the testimony of Mandy Gordon. Dkt. 12,
to 42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits if the
ALJ's findings are based on legal error or not supported
by substantial evidence in the record as a whole. Bayliss
v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)
(citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th
Whether the ALJ properly considered the VA Rating.
first alleges the ALJ failed to provide adequate reasons for
rejecting the VA Rating. Dkt. 12, pp. 3-10.
determination by the VA about whether a claimant is disabled
is not binding on the Social Security Administration
(“SSA”); however, an ALJ must consider the
VA's determination in reaching his or her decision.
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.
2002); 20 C.F.R. § 404.1504. Further, the ALJ
“must ordinarily give great weight to a VA
determination of disability.” McCartey, 298
F.3d at 1076. This is because of “the marked
similarity” between the two federal disability
programs. See Id. (describing similarities in the
programs). However, “[b]ecause the VA and SSA criteria
for determining disability are not identical, ” the ALJ
“may give less weight to a VA disability rating if
[s]he gives persuasive, specific, valid reasons for doing so
that are supported by the record.” Id. (citing
Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.
17, 2013, the VA issued the Rating finding, in relevant part,
Plaintiff's posttraumatic stress disorder
(“PTSD”) with depressive disorder resulted in a
100% disability rating effective November 18, 2011. AR 331.
The VA determined Plaintiff also met housebound criteria as
of November 18, 2011. AR 331. The VA found Plaintiff's
PTSD resulted in 100% disability because Plaintiff had: total
occupational and social impairment, persistent delusions,
persistent hallucinations, difficulty in adapting to a
worklike setting, difficulty in adapting to stressful
circumstances, difficulty in adapting to work, a Global
Assessment of Function (“GAF”) score of 50,
difficulty in establishing and maintaining effective work and
social relationships, forgetting ...