United States District Court, D. Arizona
Timothy M. Odaniell, Plaintiff,
Commissioner of Social Security Administration, Defendant.
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff's appeal of the denial of
his social security disability benefits. Plaintiff raises two
claims of error on appeal: 1) the Administrative Law Judge
(“ALJ”) did not properly consider the VA's
partial disability findings; and 2) the ALJ did not properly
discredit Plaintiff's symptom testimony.
Standard of Review
ALJ's decision to deny benefits will be overturned
“only if it is not supported by substantial evidence or
is based on legal error.” Magallanes v. Bowen,
881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted).
“Substantial evidence” means more than a mere
scintilla, but less than a preponderance. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998).
inquiry here is whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation
omitted). In determining whether there is substantial
evidence to support a decision, the Court considers the
record as a whole, weighing both the evidence that supports
the ALJ's conclusions and the evidence that detracts from
the ALJ's conclusions. Reddick, 157 F.3d at 720.
“Where evidence is susceptible of more than one
rational interpretation, it is the ALJ's conclusion which
must be upheld; and in reaching his findings, the ALJ is
entitled to draw inferences logically flowing from the
evidence.” Gallant, 753 F.2d at 1453
(citations omitted); see Batson v. Comm'r of the Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This
is because “[t]he trier of fact and not the reviewing
court must resolve conflicts in the evidence, and if the
evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities. See
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Thus, if on the whole record before the Court, substantial
evidence supports the ALJ's decision, the Court must
affirm it. See Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989). On the other hand, the Court “may not
affirm simply by isolating a specific quantum of supporting
evidence.” Id. (quotation and citation
the Court is not charged with reviewing the evidence and
making its own judgment as to whether Plaintiff is or is not
disabled. Rather, the Court's inquiry is constrained to
the reasons asserted by the ALJ and the evidence relied on in
support of those reasons. See Connett v. Barnhart,
340 F.3d 871, 874 (9th Cir. 2003).
Claims of Error on Appeal
argues that the ALJ erred in not considering all of his
limitations found by the VA. The ALJ recounted that the VA
had found that Plaintiff has a service-connected VA
disability rating of 10 percent for tinnitus and 20 percent
for lumbosacral or cervical strain. (Doc. 12-3 at
While this recounting by the ALJ is correct, it is
incomplete. Plaintiff notes the VA also found that Plaintiff
had a rating of 40 percent for paralysis of upper radicular
nerve group and 20 percent for neuralgia of upper radicular
nerve group. (Doc. 13 at 14). Plaintiff further notes that
the VA found Plaintiff to have a 70 percent service
connection disability rating. (Id.). Finally, the VA
found Plaintiff to be unemployable. (Id. at 15).
Plaintiff argues it was error for the ALJ to not consider all
of the VA's findings.
Government responds and argues that any error in the
ALJ's analysis was harmless. (Doc. 17 at 6). The
Government argues that the ALJ considered the VA's
determination that Plaintiff was partially disabled.
(Id. at 7). Further the Government notes that the
ALJ relied heavily on the medical record, in which no doctor
found Plaintiff to have disabling limitations. (Id.
at 7-8; Doc. 12-3 at 29).
Ninth Circuit Court of Appeals has directed that the ALJ must
give “great weight” to a VA determination of
disability. McCartey v. Massanari, 298 F.3d 1072,
1076 (9th Cir. 2002). However, because the VA criteria for
determining disability and the social security criteria for
determining disability are not identical, the ALJ “may
give less weight to a VA disability rating if he gives
persuasive, specific, valid reasons for doing so that are
supported by the record.” Id. In the
McCartey case, the ALJ failed to consider a VA 80
percent disability finding. Id. The Court of Appeals
remanded for an immediate award of benefits holding that an
80 percent disability finding when given great weight means,
“a finding of disability is clearly required.”
McCartey, citing McLeod v. Astrue, 640 F.3d
881, 886, 886 n.16 (9th Cir. 2011), the Government argues
that a VA finding of only a partial
disability, when given great weight, could cut against a
social security finding of total disability
from working. The Government goes on to argue that an error
in not considering the entire partial disability finding was
harmless because the ALJ did consider a partial finding and
the ALJ further considering the partial finding would not
change the result. (Doc. 17 at 6-7).
as a general matter, the Court agrees with the Government
that a partial disability finding by the VA in some cases
would cut against a social security disability finding, the
Court cannot conclude that such a result is present in this
case. Specifically, the Court cannot be sure that the ALJ
considering a 70 percent overall disability finding (instead
of the only 10 percent and 20 percent the ALJ ...