640 F.3d 881
9th Cir.2011Background
- McLeod applied for SSI disability at age 51; ALJ found three impairments but none listed and found limited credibility.
- VA records and treating VA physicians presented mixed assessments of McLeod’s work capacity and employability.
- ALJ rejected two VA physicians’ opinions on employability as not function-by-function, deferring to SSA for disability determination.
- McLeod argued the ALJ failed to develop the record, including a potential VA disability rating McLeod may have.
- The case centers on VA disability rating consideration and the ALJ’s duty to inquire under governing Ninth Circuit standards.
- District court denied review; the issue proceeded to appellate review, culminating in a remand-focused reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to develop record on VA rating | McLeod contends ALJ should obtain VA rating. | SSA need not obtain VA rating absent ambiguity. | ALJ erred by not inquiring; remand appropriate to obtain VA rating. |
| Consideration and weight of VA rating | VA disability rating should be considered and given great weight. | VA rating not binding; SSA determines disability. | VA rating must be considered and weight determined in light of Tonapetyan/McCartey. |
| Impact of treating VA opinions on employability | Treating VA opinions support disability and need proper consideration. | SSA decision rests with SSA; not bound by treating opinions on employability. | Treating opinions on employability not binding; ALJ’s ultimate determination remains SSA's mandate. |
| Remand necessity after harmless-error framework | Record deficiency warrants remand for further VA rating information. | If harmless, no remand necessary; no prejudice shown. | Under Sanders, remand appropriate where prejudice is reasonably likely; here prejudice suggested by missing VA rating. |
Key Cases Cited
- Tonapetyan v. Halter, 242 F.3d 1144 (9th Cir. 2001) (ambiguous evidence triggers duty to inquire; disability determination reserved to Commissioner)
- McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002) (VA rating to be considered; great weight ordinarily given)
- Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (treating physician opinions and credibility considerations in disability determinations)
- Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001) (duty to develop record where claimant unrepresented or limited representation)
- Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (no duty to recontact doctors before rejecting parts of their opinions)
- Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (harmless-error framework applies; burden on claimant to show prejudice)
- Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006) (contextual support for Sanderson/Holistic review of error prejudice)