Mcleod v. Astrue

• Decision Date: 19 May 2011
• Docket Number: No. 09–35190.,09–35190.
• Citation: 640 F.3d 881,11 Cal. Daily Op. Serv. 5954,167 Soc.Sec.Rep.Serv. 43,2011 Daily Journal D.A.R. 7225
• Parties: Gene R. McLEOD, Plaintiff–Appellant,v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

640 F.3d 881

167 Soc.Sec.Rep.Serv. 43

11 Cal. Daily Op. Serv. 5954

2011 Daily Journal D.A.R. 7225

Gene R. McLEOD, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant–Appellee.

No. 09–35190.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 2010.Filed Dec. 16, 2010.Amended Feb. 4, 2011.Second Amendment May 19, 2011.

Paul B. Eaglin, Eaglin Law Office, Fairbanks, AK, for the appellant.Jennifer Randall, Special Assistant United States Attorney, Social Security Administration, Office of the General Counsel, Denver, CO, for the appellee.On Appeal from the United States District Court for the District of Montana, Jeremiah C. Lynch, Magistrate Judge, Presiding. D.C. No. 9:07–CV–52–JCL.Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA, and RICHARD C. TALLMAN, Circuit Judges.

ORDER

Appellee's petition for rehearing is granted in part and denied in part.

The opinion filed on December 16, 2010 and amended February 4, 2011 is amended as follows:

At 2207–8 of the amended slip opinion, strike the following two sentences:

The district court reviewing a Social Security determination “may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” The ALJ's failure to help McLeod develop the record by putting his VA disability determination into the record is “good cause” under Tonapetyan, and the disability determination is “material” under McCartey, so the district court should remand for this purpose.

Replace them with:

We remand under sentence four of 42 U.S.C. § 405(g), concluding that “the agency erred in some respect in reaching a decision to deny benefits.” ³² The ALJ's failure to help McLeod develop the record by putting his VA disability determination into the record was an error under Tonapetyan and McCartey, so the district court should remand.

The ALJ had no duty to request more information from the two physicians. It appears from the record that substantially all of their medical records throughout the time they treated McLeod were before the ALJ. There was nothing unclear or ambiguous about what they said. They both thought McLeod had a bad lower back condition, based on his symptom reports, their examinations, and objective medical tests. Dr. Dietz thought McLeod could do sedentary work, and Dr. Rossetto thought McLeod could not work at all. As for the ALJ rejecting Dr. Rossetto's opinion on whether McLeod could work at any job, he was correct that this determination is for the Social Security Administration to make, not a physician. “Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability.” ² McLeod argues that Dr. Rossetto's opinion could be read as an evaluation of his “functional exertional capacity” rather than a conclusion on his ability to work, but we do not agree. The words are clear and unambiguous: an “ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” ³

A treating physician's evaluation of a patient's ability to work may be useful or suggestive of useful information, but a treating physician ordinarily does not consult a vocational expert or have the expertise of one. An impairment is a purely medical condition. A disability is an administrative determination of how an impairment, in relation to education, age, technological, economic, and social factors, affects ability to engage in gainful activity. The “relationship between impairment and disability remains both complex and difficult, if not impossible, to predict ... The same level of injury is in no way predictive of an affected individual's ability to participate in major life functions (including work) ... Disability may be influenced by physical, psychological, and psychosocial factors that can change over time.” ⁴ The law reserves the disability determination to the Commissioner.⁵ Rejection of the treating physician's opinion on ability to perform any remunerative work does not by itself trigger a duty to contact the physician for more explanation.⁶

The issue of the VA disability rating is more complex. The record suggests a likelihood that McLeod has some sort of VA disability rating, yet does not show what it is. That McLeod failed to submit the rating to the ALJ is not the end of the matter.

The ALJ has a duty to conduct a full and fair hearing.⁷ We held in Tonapetyan v. Halter⁸ that “[a]mbiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an appropriate inquiry.” ⁹ The ALJ must be “especially diligent” when the claimant is unrepresented or has only a lay representative, as McLeod did.¹⁰ A specific finding of ambiguity or inadequacy of the record is not necessary to trigger this duty to inquire, where the record establishes ambiguity or inadequacy.¹¹

The record here was inadequate. McLeod testified that he was receiving a VA pension based on unemployability, but that he had no idea whether he had a disability rating. This testimony suggests a likelihood that he had one. If he did, it might very well matter.

We held in McCartey v. Massanari¹² that “although a VA rating of disability does not necessarily compel the SSA to reach an identical result, 20 C.F.R. § 404.1504, the ALJ must consider the VA's finding in reaching his decision” ¹³ and the ALJ “must ordinarily give great weight to a VA determination of disability.” ¹⁴ That is not to say that the VA rating is conclusive. In McCartey, we commented that “because the VA and SSA criteria for determining disability are not identical,” ¹⁵ the record may establish adequate reason for giving the VA rating less weight. In some circumstances, the VA may assign a partial rather than a total disability rating to a veteran,¹⁶ and a partial disability rating might cut against rather than in favor of an SSA determination that the individual could not perform remunerative work of any kind.

Even though it is not binding or conclusive, the VA disability rating has to be considered. The ALJ did not mention it in her decision and did not consider it. No doubt she failed to consider the VA rating because it was not in the record and she did not know what disability rating if any the VA had assigned to McLeod. Nevertheless, she erred by not trying to get whatever VA disability rating existed.

We must apply the holding in McCartey, that the VA disability rating must be considered and ordinarily must be given great weight, together with the holding in Tonapetyan, that inadequacy of the record to allow for proper evaluation triggers a duty of inquiry. These two holdings taken together establish that when the record suggests a likelihood that there is a VA disability rating, and does not show what it is, the ALJ has a duty to inquire. McLeod might have had a letter from the VA telling him what his disability rating was, or providing him with the basis on which he got his pension, that he could have brought in had the ALJ given him a continuance and told him to bring in his letter. Alternatively, the ALJ could have obtained McLeod's disability rating herself.¹⁷ Then she could have evaluated his disability properly under Tonapetyan. By failing to obtain and consider McLeod's VA disability rating, the ALJ erred, denying him the “full and fair hearing” to which he was entitled.

That leads us to the next question, what we are to do about the error. We still do not know what determination the VA made regarding McLeod's claimed disability. We therefore do not know whether the ALJ's failure to obtain the rating caused McLeod any harm.

The answer to what we must do about the error is provided by a recent Supreme Court decision, Shinseki v. Sanders.¹⁸ In Sanders, the VA had denied disability benefits to two veterans, Woodrow Sanders and Patricia Simmons, because the record failed to adequately support their claims. In one instance, the VA had told the veteran what additional information was needed, but failed to specify what portion of that evidence the veteran would be responsible for providing. In the other, the VA failed to tell the veteran what information she needed to provide and failed to notify her of a relevant medical exam the VA had scheduled on her behalf. In both instances, the VA failed to perform its duty to help a veteran develop his claim.

The Court held that to determine whether the error caused prejudice the Veterans Court was to “apply the same kind of ‘harmless-error’ rule that courts ordinarily apply in civil cases.” ¹⁹ The Court went further, holding that the burden is on the party attacking the agency's determination to show that prejudice resulted from the error.²⁰ Overruling the Federal Circuit, the Court held that prejudice cannot be presumed from any kind of error.²¹ Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal must explain how the error caused harm. The first veteran had not told the Veterans Court, the Court of Appeals, or the Supreme Court what specific evidence he would have sought, had the VA told him he needed it, and the Court denied relief. The second veteran's record suggested the error might have been harmful, so the Court required a remand to the Veterans Court, even though she had not shown what additional evidence she might have submitted. The distinction the Court drew appears to be that in the case of the second veteran, some “features of the record suggest” that the error was prejudicial.²²

We conclude that Sanders applies to...