REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Cortina M. Rogers seeks review of the denial of her Disability Insurance Benefits application. She contends the ALJ erred by (1) making step-three findings without obtaining an updated medical opinion from a medical expert, and (2) summarily rejecting the Department of Veterans Affairs disability rating. Dkt. 24. The Court agrees and recommends that the case be REVERSED and REMANDED for further administrative proceedings.

BACKGROUND

Ms. Rogers was 33 years old on her date last insured, has a high school education, and has worked as a laborer, parts clerk, and dispatcher. Tr. 155, 193, 197. On November 16, 2009, she applied for benefits, alleging disability as of December 1, 2000. Tr. 155. Her application was denied initially and on reconsideration. Tr. 100, 105. After conducting a hearing, the ALJ issued a decision on February 16, 2012, finding Ms. Rogers not disabled. Tr. 21-33. As the Appeals Council denied Ms. Rogers's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1.

THE ALJ'S DECISION

Utilizing the five-step disability evaluation process,1 the ALJ found that Ms. Rogers had not engaged in substantial gainful activity since the alleged onset date; she had the following severe impairments: posttraumatic stress disorder, depressive disorder, not otherwise specified, and status post left ulna fracture with open reduction internal fixation; and these impairments did not meet or equal a listed impairment.2 Tr. 23-24. The ALJ found that Ms. Rogers had the residual functional capacity to perform light work; she was capable of occasionally fingering with her left hand; she was capable of simple, routine, repetitive tasks and work that involved occasional contact with supervisors and co-workers but no contact with the general public; and she was capable of work that involved few if any changes in the work setting. Tr. 25. The ALJ found that Ms. Rogers was unable to perform any past relevant work but she could perform jobs that exist in significant numbers in the national economy. Tr. 31. The ALJ therefore concluded that Ms. Rogers was not disabled. Tr. 32.

DISCUSSION

A. Need for updated medical opinion

Ms. Rogers argues that the ALJ erred by making a step-three finding that her mental impairments did not meet or equal a listing without obtaining an updated medical opinion from a medical expert, in violation of Social Security Ruling (SSR) 96-6p.3 Dkt. 24 at 5.

Single decision-maker (SDM) Mark O'Neill reviewed Ms. Rogers's case on January 11, 2010 and found the evidence insufficient to show that Ms. Rogers was disabled due to her mental impairments during the relevant period. Tr. 389. On January 26, 2010, Thomas Clifford, Ph.D., signed off on the psychiatric review technique form completed by the SDM, finding insufficient evidence. Tr. 377. The Social Security Administration denied Ms. Rogers's claim on January 28, 2010, based on the finding of insufficient evidence to prove she was disabled. Tr. 100.

On April 5, 2010, Matthew Comrie, Psy.D., reviewed the evidence and affirmed the determination that there was insufficient evidence of a severe mental impairment before the date last insured. Tr. 393. The SSA denied reconsideration of Ms. Rogers's claim on April 8, 2010, again based on the finding that the evidence was insufficient to determine disability. Tr. 105.

Before and after the ALJ hearing, Ms. Rogers submitted over 600 pages of additional medical records. Tr. 397-1015. After considering both the original and the updated records, the ALJ found that Ms. Rogers had medically determinable severe mental impairments and proceeded with the five-step disability evaluation process, including an evaluation of whether these impairments met or equaled a listed impairment and their impact on her residual functional capacity. Tr. 23-24. The ALJ found that the impairments caused Ms. Rogers mild restriction in her activities of daily living; moderate difficulties in her social functioning; moderate difficulties in her concentration, persistence, or pace; and no episodes of decompensation of extended duration. Tr. 24-25.

Under 20 C.F.R. § 404.1520a(c), the ALJ must follow a special technique for evaluating mental impairments. If the ALJ determines that the claimant has a medically determinable mental impairment, the ALJ must rate the degree of functional limitation resulting from the impairment in four broad areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) episodes of decompensation. 20 C.F.R. § 404.1520a(c). If the degree of functional limitation in the first three areas is "none" or "mild" and it is "none" in the fourth area, the impairment is generally not severe. 20 C.F.R. § 404.1520a(d). Otherwise, the impairment is severe, and the ALJ must consider whether it meets or equals a listed impairment at step three. To meet the listings at issue here, the claimant must meet at least two of the following criteria (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404, App. 1, § 12.04, 12.06.4

The ALJ is ultimately responsible for deciding the legal question of whether a claimant's impairments meet or equal a listing. See 20 C.F.R. § 404.1526. In making this decision, the ALJ must consider all the evidence in the case record. 20 C.F.R. § 404.1526(c). The ALJ must also consider the opinion given by one or more medical or psychological consultants designated by the Commissioner. Id. Such consultants include consultants hired by the state agency authorized to make disability determinations. 20 C.F.R. § 404.1526(d). As explained in SSR 96-6p, "longstanding policy requires that the judgment of a physician (or psychologist) designated by the Commissioner on the issues of equivalence on the evidence before the administrative law judge or the Appeals Council must be received into the record as expert opinion evidence and given appropriate weight." The ALJ must obtain an updated opinion from a medical expert when additional medical evidence is received that "in the opinion of the administrative law judge . . . may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments." SSR 96-6p.5

In considering whether Ms. Rogers's mental impairments met or equaled a listing, the ALJ considered Ms. Rogers's testimony, reports in her medical records, and a function report completed by her husband. Tr. 24. But, because the state agency consultants all opined that the evidence was insufficient to establish the existence of a mental impairment, the ALJ considered no state agency medical consultant opinion on the issue of whether Ms. Rogers's mental impairments met or equaled a listing. This is contrary to the requirement of 20 C.F.R. § 404.1526(c). The state agency consultants reviewed the record before the voluminous additional evidence was received. Their opinions were thus not based "on the evidence before the administrative law judge" as SSR 96-6p and, indeed, "longstanding policy" of the Social Security Administration, require.

The Court recognizes that the ALJ has broad discretion in determining whether to call a medical expert to testify. SSR 96-6p requires the ALJ to obtain an updated medical expert opinion if, "in the opinion of the administrative law judge" additional medical evidence may change the state agency consultant's finding on equivalence. Here, where the state agency consultants had no finding on equivalence due to insufficient evidence, and the additional evidence was sufficient to establish the existence of mental impairments, it is impossible to conclude that the additional medical evidence would not change the consultants' findings. The ALJ's failure to obtain an updated medical expert opinion was in violation of SSR 96-6p.

The Commissioner argues that the ALJ was not required to obtain an updated opinion because "the ALJ did not seek to make a decision of disability based on medical equivalence." Dkt. 26 at 3. But the ALJ did make a finding on equivalence, that Ms. Rogers's impairments did not equal a listing. The fact that the ALJ's finding on equivalence was negative does not eliminate the need to obtain an updated medical opinion. The Commissioner also argues that any error was harmless, as Ms. Rogers has failed to identify what prejudice likely resulted from the error. Dkt. 26 at 4. The ALJ made step-three and residual functional capacity findings without the benefit of any medical expert opinion. The Court declines to find that such an omission is harmless, where, due to the very nature of the error, Ms. Rogers cannot identify what the expert opinion would have been.

The Court concludes that the ALJ's finding that Ms. Rogers did not have an impairment that met or equaled a listing is not supported by substantial evidence or free of harmful legal error. The Court therefore recommends that this case be remanded with directions to obtain and consider an updated medical opinion from a medical expert regarding the degree of functional limitation caused by Ms. Rogers's mental impairments and whether these impairments, alone or in combination, met or equaled a listed impairment.

B. VA rating

Ms. Rogers argues that the ALJ erred by summarily rejecting the VA's determination of unemployability. Dkt. 24 at 8. In December 2008, the VA issued a decision increasing the disability rating for Ms. Rogers's PTSD with major depressive disorder from 50% to 70%, and finding that she was entitled to the 100% Individual Unemployability rate effective April 9, 2004 because she was "unable to work due to [her] service connected disabilities." Tr. 473-77. The ALJ found that this decision did not provide any guidance to Ms. Rogers's functional abilities and simply contained a conclusory statement that Ms. Rogers was unable to work. Tr. 30. The ALJ noted that the VA determination of disability was not binding. Id. And the ALJ found that neither the medical evidence nor Ms. Rogers's activities of daily living supported a finding of disability. Id.

A determination of disability by another agency such as the VA is not binding on the Social Security Administration. 20 C.F.R. § 404.1504. And yet there is "marked similarity between these two federal disability programs." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Accordingly, the ALJ must "ordinarily give great weight" to a VA determination of disability, although 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.

The Court finds that the ALJ did not give persuasive, specific, or valid reasons for rejecting the VA disability rating. Although the ALJ found the VA rating to be conclusory, an attachment to the letter explains that a VA examiner found Ms. Rogers to have "occupational and social impairments with deficiencies in most areas, such as work, school, family relations, thinking, mood, due to some mild suicidal ideations, obsessional rituals, irrelevant or near panic and depression affecting [her] ability to function on a daily basis," and rating her Global Assessment of Functioning score as 45, indicating serious symptoms or a serious impairment in social, occupational, or school functioning.6 Tr. 480. Moreover, a rejection simply because the VA's disability rating inquiry is different from the Social Security inquiry is invalid. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). And, finally, the ALJ's mere assertion, without explanation, that the medical evidence and Ms. Rogers's daily activities did not support a finding of disability, was neither specific nor persuasive. The Court concludes that the ALJ erred in discounting the VA's disability rating and therefore recommends that the ALJ be directed to reassess the VA rating on remand.

CONCLUSION

For the foregoing reasons, the Court recommends that the Commissioner's decision be REVERSED and the case be REMANDED for further administrative proceedings. On remand, the ALJ should (1) obtain an updated medical opinion from a medical expert regarding the degree of functional limitation caused by Ms. Rogers's mental impairments; (2) reevaluate whether Ms. Rogers's mental impairments, alone or in combination, met or equaled a listed impairment; and (3) further develop the record and continue with the remainder of the five-step disability evaluation process, including a reassessment of the VA disability rating, as necessary.

A proposed order accompanies this Report and Recommendation. Objections, if any, to this Report and Recommendation must be filed and served no later than May 30, 2014. If no objections are filed, the matter will be ready for the Court's consideration on that date. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. Objections and responses shall not exceed twelve pages. The failure to timely object may affect the right to appeal.