Gary Underhill v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
MAR 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY D. UNDERHILL, No. 14-35721

Plaintiff-Appellant, D.C. No. 3:13-cv-05881-MAT

v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Mary A. Theiler, Magistrate Judge, Presiding

Argued and Submitted March 7, 2017
Seattle, Washington

Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

Claimant Gary Underhill appeals the district court’s judgment affirming the

denial of his application for disability insurance benefits under the Social Security

Act. Reviewing the district court’s decision de novo and the administrative law

judge’s ("ALJ") decision for substantial evidence, Rounds v. Comm’r Soc. Sec.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Admin., 807 F.3d 996, 1002 (9th Cir. 2015), we reverse and remand with

instructions to remand to the agency.

1. The ALJ did not give "persuasive, specific, [and] valid reasons" for failing

to afford great weight to the Department of Veterans Affairs’ ("VA") determination

that Claimant was totally disabled. McCartey v. Massanari, 298 F.3d 1072, 1076

(9th Cir. 2002). The first reason given by the ALJ—that the rating system used by

the VA is not the same as the one used by the Social Security Administration—is

not valid. Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010). The second

reason given by the ALJ—that several of the impairments underlying the VA’s

rating were not mentioned by Claimant in his testimony at the hearing—is not

persuasive because those impairments were discussed in the medical records that

Claimant submitted. Moreover, Claimant’s failure to mention those impairments is

attributable in large part to the ALJ’s failure to develop the record by asking

Claimant the right questions. See Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th

Cir. 2006) ("[W]e find that the ALJ’s reliance on [the claimant’s] failure to

mention a physical problem . . . is especially unreasonable in light of the ALJ’s

special duties with regard to developing the record."). For example, when

Claimant testified that his disability resulted "primarily" from his back and hip

2
conditions, the ALJ did not explore what conditions secondarily contributed to the

claimed disability.

2. The ALJ also erred by failing to consider the medical opinion of Dr.

Rezvani. See Marsh v. Colvin, 792 F.3d 1170, 1172–73 (9th Cir. 2015). Dr.

Rezvani, unlike Dr. Suffis, opined that x-rays showed that Claimant had "mild to

moderate" degenerative disc disease, and further noted that Claimant walked with a

limp. Had the ALJ considered those medical findings, he might have come to a

different conclusion concerning the limiting effects of Claimant’s back impairment

and, ultimately, to a different conclusion regarding Claimant’s residual functional

capacity and disability. And the VA rating, had it been given greater weight, might

have swayed the ALJ’s ultimate disability determination.

3. Because we cannot conclude that the ALJ’s errors were "inconsequential

to the ultimate nondisability determination," Stout v. Comm’r, Soc. Sec. Admin.,

454 F.3d 1050, 1055 (9th Cir. 2006), we cannot find that the ALJ’s errors were

harmless.

4. Claimant’s remaining arguments are unpersuasive.

5. Even crediting as true Dr. Rezvani’s medical opinion and the VA’s

disability rating, the ALJ would not be required to find Clamaint disabled.

Accordingly, we remand to the district court with instructions to remand the case to

3
the agency on an open record for further proceedings. Burrell v. Colvin, 775 F.3d

1133, 1141–42 (9th Cir. 2014).

REVERSED and REMANDED with instructions.

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 FILED
Underhill v. Berryhill, No. 14-35721
MAR 24 2017
IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

The ALJ did not err in his analysis of the Department of Veterans Affairs’s

disability rating. The ALJ’s determination that the medical evidence did not

support this rating and that the “predicate” to the VA’s determination of disability

was “mysterious,” is supported by substantial evidence in the record. Among other

things, the VA’s determination that Underhill was disabled (as defined under the

VA regulations) required a finding that Underhill suffered from tinnitus, and the

ALJ reasonably disregarded Underhill’s tinnitus because the record did not include

a diagnosis from a medically acceptable source supported by objective findings.

Therefore, the ALJ provided a “persuasive, specific, valid reason[]” for doing so

that was “supported by the record.” Valentine v. Comm’r Soc. Sec. Admin., 574

F.3d 685, 695 (9th Cir. 2009) (quoting McCartey v. Massanari, 298 F.3d 1072,

1076 (9th Cir. 2002)). Alternatively, any error was harmless because it clearly

would not have altered the ALJ’s decision, Molina v. Astrue, 674 F.3d 1104, 1115

(9th Cir. 2012), given the substantial evidence supporting the ALJ’s residual

functional capacity.

The ALJ did not err by failing to explicitly mention Dr. Rezvani’s medical

opinion that Underhill had degenerative disc disease. An “ALJ does not need to

discuss every piece of evidence” in the record, only evidence that is significant and
probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)

(internal quotation marks omitted). Here, the ALJ did not need to give clear and

convincing reasons for rejecting Dr. Rezvani’s report because the ALJ did not

reject it. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010).

The ALJ found that Underhill’s degenerative disc disease constituted a severe

impairment, and incorporated it into his assessment of Underhill’s residual

functional capacity. Because Dr. Rezvani did not identify any functional

limitations in his report, the ALJ’s determination did not contradict Dr. Rezvani’s

opinion.

The supposed errors that the majority identifies in the ALJ’s decision were

not errors at all, and the majority should not turn a review of an ALJ’s decision for

substantial evidence into a flyspecking exercise.1 I dissent.

1
At least as to our standard for reviewing ALJ’s evaluations of VA
decisions, “relief is on its way,” Jibril v. Gonzales, 423 F.3d 1129, 1138 (9th Cir.
2005), in the form of new regulations, which provide that for claims filed after
March 27, 2017, “we will not provide any analysis in our determination or decision
about a decision made by any other governmental agency . . . about whether you
are disabled, blind, employable, or entitled to any benefits.” Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5864, 5874
(Jan. 18, 2017) (amending 20 C.F.R. §§ 404.1504, 416.904). This amended
regulation will overrule McCartey’s requirement that “an ALJ must ordinarily give
great weight to a VA determination of disability” or provide “persuasive, specific,
valid reasons for [giving less weight] that are supported by the record,” 298 F.3d at
1076. See Irigoyen-Briones v. Holder, 644 F.3d 943, 947 (9th Cir. 2011); see also
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–84
(2005).