Bethany Vardaman v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BETHANY VARDAMAN,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 18-35602
D.C. No.
2:17-cv-00303-CWD
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding
Submitted June 7, 2019**
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,*** District
Judge.
Bethany Vardaman appeals the district court’s judgment affirming the denial
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for
decision without oral argument.
*** The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
FILED
JUL 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of her application for disability insurance benefits under the Social Security Act.
We reverse with instructions to remand to the agency.
1. In February 2012, the Veteran’s Administration (“VA”) found Vardaman
80% disabled. The ALJ gave the VA’s disability rating little weight because the
VA uses a formulaic approach to disability determinations rather than the
functional approach used by the Social Security Administration. Additionally, the
ALJ found that the VA rating was not consistent with the medical evidence before
Vardaman’s date last insured.
2. We have stressed that “the ALJ must consider the VA’s finding in
reaching his decision and the ALJ must ordinarily give great weight to a VA
determination of disability.” McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011)
(internal quotation marks omitted) (quoting McCartey v. Massanari, 298 F.3d
1072, 1076 (9th Cir. 2002)). “Simply mentioning the existence of a VA rating in
the ALJ’s decision is not enough.” Luther v. Berryhill, 891 F.3d 872, 877 (9th Cir.
2018). And, an ALJ may only “give less weight to a VA disability rating if he
gives persuasive, specific, valid reasons for doing so that are supported by the
record.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009)
(quoting McCartey, 298 F.3d at 1076).
3. Instead of providing any persuasive, specific, or valid reasons for
discounting the VA’s rating, the ALJ perfunctorily concluded that the rating was

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based on a different approach than Social Security determinations and inconsistent
with some medical evidence.1 These are not the “persuasive, specific, valid
reasons” demanded by our case law, nor do they meaningfully allow for judicial
review. See Valentine, 574 F.3d at 695 (“Insofar as the ALJ distinguished the
VA’s disability rating on the general ground that the VA and SSA disability
inquiries are different, her analysis fell afoul of McCartey.”). Much more specific
reasoning was necessary, especially considering that many of the records which the
VA reviewed in assessing Vardaman’s 80% disability rating covered the period of
time before Vardaman’s date last insured.
4. Because we cannot conclude that the ALJ’s errors were “inconsequential
to the ultimate nondisability determination,” Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012) (citations omitted), we cannot find that the ALJ’s error was
harmless.
1 The entirety of the ALJ’s analysis reads:
The claimant received a VA disability rating effective as of June 2010,
of 80% disabled (70% for posttraumatic stress disorder, 10% tinnitus,
20% chronic cystitis, 10% ovary disease). I give little weight to this
opinion because the Veteran’s Administration has a formulaic approach
to disability determinations rather than a functional approach, like the
Social Security Administration uses. A VA determination is based on
its own rules, and is not binding on the Social Security Administration.
The VA rating is not consistent with the evidence before the claimant’s
date last insured showing the claimant was high functioning and doing
quite well.

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REVERSED and REMANDED with instructions.

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