Rogelio Garcia v. Nancy Berryhill, Acting Cmsnr
Opinion
IT IS ORDERED that the petition for rehearing is DENIED.
The petition for panel rehearing helpfully calls attention to factual errors in the opinion. We correct them by substituting the following opinion:
Rogelio Garcia appeals the district court’s decision to deny disability benefits he sought from the Social Security Administration (“SSA”). Because the decision is supported by substantial evidence, we affirm.
I.
In January 2012, Garcia applied for disability insurance benefits under
The record before the ALJ revealed that since leaving the service, Garcia had earned consistent, and at times substantial, income through 2005. Between 1997 and 1999, he' was a dispatcher at a produce company, where he was responsible for traffic control and oversaw the work of four other employees. In 2000, he started his own produce brokerage business and managed several employees. He has not worked since December 2005.
At some point between 2005 and 2007, Garcia sought treatment from a doctor for “dizzy spells” -and was advised that he should file for disability with the Veteran’s Administration (“VA”). He applied in August 2009 and was subject to a psychological evaluation by Dr, Paul Hamilton one year later as part of the VA’s evaluation. 1 Hamilton found that Garcia possessed powers of comprehension, judgment, communication, and abstract thinking, all with *703 in a normal range, but that his “impaired attention” and abnormal speech patterns left “little opportunity for normal” conversation. Hamilton also concluded that Garcia would make a poor employee given the difficulty in containing anger and his “graphic visualization of killing others.”
In June 2011, largely on the basis of that assessment, the Department of Veterans Affairs determined that Garcia suffered from war-induced PTSD, which resulted in his “100% disability,” effective August 28, 2009, the date on which his claim was filed. Garcia’s medical records indicate that in the thirty years before that determination, he had not been not diagnosed with or treated for PTSD.
In March 2012,- Dr. Noel Nick examined Garcia at the VA’s request in connection with a separate claim for compensation for Traumatic Brain Injury (“TBI”). Nick determined that Garcia’s visual/spatial test score was -below normal; his memory, attention, concentration and executive functions were mildly impaired; and his judgment, motor activity, and communication skills were within a normal range, Nick also reviewed Garcia’s medical history, which included Hamilton’s report, a negative PTSD screen from 2004, and a positive one from March- 2010. Nick concluded that Garcia’s symptoms likely were not caused by his combat service.
Two months before that, in January 2012, Garcia filed for social security- disability benefits; claiming eligibility as of January 200?. The agency solicited the opinions of Dr. Charles Lawrence, a state-agency psychologist, -and Dr. Anthony Hammond to assess Garcia’s application. The former concluded there was insufficient evidence to determine whether the hearing loss and PTSD had rendered Garcia disabled, and the latter concurred.
In November 2013, the ALJ held ah evidentiary hearing to consider testimony from Garcia and a vocational expert, Mal-loy Kelley, on Garcia’s alleged disability. Garcia claimed that from 2005 to 2007, he had become increasingly “forgetful” and had let his produce brokerage business “drift away.” On questioning by his representative, Garcia also recalled having panic attacks, nightmares, and hallucinations. Kelley testified next that a person with Garcia’s alleged symptoms would be unable to-perform any, of his prior work.
The ALJ denied benefits and made the following findings: (a) Gareiá had not performed substantial gainful activity' since the alleged onset of the disability in January 2008; (b) he suffered5 from severe tinnitus-, degenerative arthritis in his right knee, and right shoulder-arthralgia; (c) his PTSD was not severe, because it placed no more than a “minimal limitation” on his ability to perform “basic mental work activities”; (d) none of his impairments, either individually ■ or in combination, matched- the -severity of the impairments listed in.20. C.F.R. Part 404, Subpart B, Appendix 1; (e) he had the residual functional capacity to. perform light work as defined in
Garcia appealed internally, and the Appeals Council declined his request to-review, rendering the ALJ’s adverse decision *704 final. Garcia sought review in the district court per 42 U.S.C § 405(g). The magistrate judge (“MJ”) recommended that the ALJ’s determination be affirmed. The district court adopted the MJ’s report and recommendation in full, and Garcia appealed.
II.
A.
A claimant has the burden of proving he suffers from a disability, which the Act defines as a mental or physical impairment, lasting at least a year, that precludes him from substantial gainful activity.
3
The relevant analysis proceeds in five steps: the Commissioner considers whether (1) the claimant is currently engaged in substantial gainful activity, (2) he has a severe impairment, (3) the impairment meets the severity of an impairment enumerated in the relevant regulations, (4) it prevents the claimant from performing past relevant work, and (5) it prevents him from doing any relevant work.
Our review of the ALJ’s determination is “highly deferential,”
Perez,
B.
Garcia asserts three instances of error: First, the ALJ impermissibly relied on the VA’s summary of Hamilton’s psychological evaluation, when it was required to obtain and directly review a copy of the evaluation itself; second, the' ALJ improperly determined that Garcia’s PTSD was non-severe; and third, the ALJ failed properly to consider the VA’s 100% disability rating. Garcia requests that we reverse and direct the district court to remand for the Commissioner to consider Hamilton’s report directly.
The first alleged error—that the ALJ was required to obtain a copy of Hamilton’s report—was at most harmless. An ALJ’s failure to include certain documentation in the record is ground for reversal only if the applicant can show prejudice.
Brock v. Chater,
Garcia’s second claim—that the ALJ improperly deemed Garcia’s PTSD non-severe at step two—is equally unavailing. At bottom, Garcia argues the ALJ applied too high a threshold in its determination of severity. We disagree. The regulations define a severe impairment as “any impairment or combination of impairments which significantly limits [one’s] physical or mental ability to do basic work activities.”
Garcia’s final claim—that the VA’s 100% disability rating was substantial evidence of a severe impairment—is similarly unpersuasive. First, the VA’s determination does not bind the Commissioner; it is merely “evidence ... that must be considered.”
Chambliss v. Massanari,
The ALJ’s decision not to follow the VA’s determination was thus supported by *706 substantial evidence. 8 The judgment of dismissal is AFFIRMED.
. Although the ALJ could not procure a copy of Hamilton’s report, it reviewed the VA’s disability decision, which provided a detailed discussion of,the doctor’s findings..
. In support of that finding, the ALJ concluded that Garcia’s impairments could cause his alleged symptoms but that his claims about the "intensity,- persistence and limiting effects” of said systems were "not entirely credible."
. "Substantial gainful activity” is work for pay or profit requiring significant mental or physical ability.
. It is unlikely that the ALJ erred in failing to procure the original report. The record reveals that the ALJ and other interested parties devoted considerable attention to locating the report. Though Garcia suggests they were looking in the wrong place, he provides no explanation for why he and his representative could not acquire the report themselves if they knew its location.
. The four functional areas are (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.
. Any error at step two would likewise be harmless, given that the ALJ concluded at step four, on the basis of substantial evidence, that Garcia retained the ability to perform his past relevant work as a produce broker. As the ALJ observed, Garcia “worked in the produce brokerage business for close to 30 years without any known impediment” and even continued to work in that field while suffering from the alleged symptoms. Additionally, the record contained no medical evidence that Garcia had seen any doctor of any kind before 2008, when his insured status expired.
See Villa v. Sullivan,
. The timing of the VA’s decision also discounts its evidentiary value. To prove entitlement to disability benefits under the Act, claimants must prove that they became disabled before the expiration of their insured status.
Anthony
v.
Sullivan,
.See Newton,
Reference
- Full Case Name
- Rogelio Aleman GARCIA, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee
- Cited By
- 153 cases
- Status
- Published