Gary Underhill v. Nancy Berryhill
685 F. App'x 522
| 9th Cir. | 2017Background
- Gary Underhill appealed the district court’s affirmance of an ALJ’s denial of Social Security disability insurance benefits.
- The Department of Veterans Affairs (VA) had rated Underhill as totally disabled; the ALJ gave that VA determination less than great weight.
- Underhill testified his disability was primarily due to back and hip conditions; medical records and a VA file documented multiple impairments, and a VA examiner noted degenerative disc disease and a limp.
- The ALJ did not explicitly credit a treating/consulting opinion from Dr. Rezvani documenting mild-to-moderate degenerative disc disease and a limp; the ALJ relied on other evidence to assess residual functional capacity (RFC).
- The Ninth Circuit majority held the ALJ failed to give persuasive, specific, valid reasons for discounting the VA rating and failed to consider Dr. Rezvani’s findings, and reversed and remanded for further proceedings.
Issues
| Issue | Underhill's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the ALJ had to give great weight to the VA disability rating | VA determination should be given great weight; ALJ erred in discounting it | ALJ permissibly discounted the VA rating because its rating system and predicate findings differ from SSA standards | Reversed: ALJ failed to give persuasive, specific, valid reasons for discounting the VA rating and must reconsider it |
| Whether the ALJ erred by relying on claimant’s hearing testimony omission to discount VA-related impairments | Omitted impairments were in the medical record; ALJ failed to develop the record by not probing secondary impairments | ALJ argued claimant’s testimony did not corroborate all VA-identified impairments | Reversed: omission was not persuasive; ALJ had duty to develop the record and should have asked follow-up questions |
| Whether the ALJ erred by not addressing Dr. Rezvani’s opinion/findings | Rezvani found degenerative disc disease and a limp; ALJ should have considered these findings and related functional limits | ALJ did not need to discuss every piece of evidence; Rezvani gave no specific functional limitations and ALJ incorporated degenerative disc disease in RFC | Reversed: ALJ failed to consider Rezvani’s findings; they could affect RFC and the disability determination |
| Whether the ALJ’s errors were harmless | Errors affected key evidentiary weight and could change outcome; reversal required | Any errors were harmless because substantial evidence otherwise supports the RFC and nondisability | Reversed: errors were not harmless; remand required for further proceedings on an open record |
Key Cases Cited
- McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002) (ALJ must give great weight to VA disability determinations or provide persuasive, specific, valid reasons for discounting)
- Berry v. Astrue, 622 F.3d 1228 (9th Cir. 2010) (VA rating’s procedural differences do not automatically justify discounting its weight)
- Widmark v. Barnhart, 454 F.3d 1063 (9th Cir. 2006) (ALJ has special duty to develop the record and probe claimant’s testimony)
- Marsh v. Colvin, 792 F.3d 1170 (9th Cir. 2015) (ALJ must consider medical opinions and explain reasons for rejecting probative evidence)
- Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006) (errors are harmless only if inconsequential to the ultimate nondisability determination)
- Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014) (remand on open record may be appropriate when crediting evidence does not require an immediate disability finding)
- Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685 (9th Cir. 2009) (standard for giving weight to VA findings and need for persuasive, specific reasons)
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (harmless error standard in social security cases)
- Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 2003) (ALJ need not discuss every piece of evidence, only significant probative evidence)
- Turner v. Comm’r of Soc. Sec., 613 F.3d 1217 (9th Cir. 2010) (ALJ’s duty regarding medical opinions and when explicit rejection is required)
- Nat’l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (U.S. 2005) (agency rulemaking can change judicially created standards; cited re: regulatory changes affecting VA-decision weight)