KLEINFELD, Circuit Judge:
We address harmless error in the context of Social Security disability.
Gene R. McLeod applied at age 51 for supplemental security income based on disability. The Administrative Law Judge (ALJ) found that he had three severe impairments—degenerative changes of the lumbar spine, history of coronary artery disease, and sleep apnea—but none so severe as to rise to the level of "listed" impairments. He lacked significant protrusion or herniation of the discs or compression of the nerve root where there was narrowing at L4-5, and catheterization had restored him to asymptomatic condition regarding his heart. The ALJ found that McLeod's medically determinable impairments could be expected to produce his symptoms, but his "statements concerning intensity, duration and limiting effects of these symptoms are not entirely credible." One of McLeod's treating physicians said that he was "very debilitated" and another
The medical record, consisting mostly of information from McLeod's treating physicians and physicians to whom his treating physicians referred him for consultation at Department of Veterans Affairs facilities, was mixed as to the severity of McLeod's condition. A neurosurgeon to whom McLeod was referred said that McLeod had "no muscle weakness" and recommended against surgery because of the unlikelihood of improvement "particularly with unsettled litigation and his pain behavior on examination." The VA Neurosurgery Chief wrote that McLeod's spinal canal was "open throughout his lumbosacral region" (which means no compression on account of narrowing) and that "he has some evidence of degenerated discs but there is not any evidence of nerve root compression from these discs." One treating physician at the VA said that because McLeod had "back pain with minimal activity," and "any work he has done exacerbates the problem," he was "unemployable." But another treating VA physician said McLeod should be restricted to "light manual sedentary" work, rather than no work at all.
McLeod's appeal focuses on the ALJ's failure to develop the record further regarding his veteran's disability and medical condition. McLeod testified that he received a $296 non-service-connected pension, based on unemployability, from the VA. When the ALJ asked him if he had a VA disability rating, he answered, "I have no idea, Your Honor." The record does not reveal whether the VA found McLeod partially or entirely disabled. No evidence of his disability rating was submitted to the Social Security Administration at any stage of the proceedings, or to the district court. Based on McLeod's testimony about his "pension," there is a fair chance he has a disability rating, but the record shows neither that he has one nor what it is.
Though McLeod had only a lay representative before the VA, he was represented by an attorney in district court and is represented, by different counsel, here.
McLeod argues under Tonapetyan v. Halter
The ALJ had no duty to request more information from the two physicians. It appears from the record that substantially all of their medical records throughout the time they treated McLeod were before the ALJ. There was nothing unclear or ambiguous about what they said. They both thought McLeod had a bad
A treating physician's evaluation of a patient's ability to work may be useful or suggestive of useful information, but a treating physician ordinarily does not consult a vocational expert or have the expertise of one. An impairment is a purely medical condition. A disability is an administrative determination of how an impairment, in relation to education, age, technological, economic, and social factors, affects ability to engage in gainful activity. The "relationship between impairment and disability remains both complex and difficult, if not impossible, to predict ... The same level of injury is in no way predictive of an affected individual's ability to participate in major life functions (including work) ... Disability may be influenced by physical, psychological, and psychosocial factors that can change over time."
The issue of the VA disability rating is more complex. The record suggests a likelihood that McLeod has some sort of VA disability rating, yet does not show what it is. That McLeod failed to submit the rating to the ALJ is not the end of the matter.
The ALJ has a duty to conduct a full and fair hearing.
The record here was inadequate. McLeod testified that he was receiving a VA pension based on unemployability, but that he had no idea whether he had a disability rating. This testimony suggests a likelihood that he had one. If he did, it might very well matter.
We held in McCartey v. Massanari
Even though it is not binding or conclusive, the VA disability rating has to be considered. The ALJ did not mention it in her decision and did not consider it. No doubt she failed to consider the VA rating because it was not in the record and she did not know what disability rating if any the VA had assigned to McLeod. Nevertheless, she erred by not trying to get whatever VA disability rating existed.
We must apply the holding in McCartey, that the VA disability rating must be considered and ordinarily must be given great weight, together with the holding in Tonapetyan, that inadequacy of the record to allow for proper evaluation triggers a duty of inquiry. These two holdings taken together establish that when the record suggests a likelihood that there is a VA disability rating, and does not show what it is, the ALJ has a duty to inquire. McLeod might have had a letter from the VA telling him what his disability rating was, or providing him with the basis on which he got his pension, that he could have brought in had the ALJ given him a continuance and told him to bring in his letter. Alternatively, the ALJ could have obtained McLeod's disability rating herself.
That leads us to the next question, what we are to do about the error. We still do not know what determination the VA made regarding McLeod's claimed disability. We therefore do not know whether the ALJ's failure to obtain the rating caused McLeod any harm.
The answer to what we must do about the error is provided by a recent Supreme Court decision, Shinseki v. Sanders.
The Court held that to determine whether the error caused prejudice the VA was to "apply the same kind of `harmless-error' rule that courts ordinarily apply in civil cases."
We conclude that Sanders applies to Social Security cases as well as VA cases. In both, the agency has a duty to help the claimant, so the Social Security Administration's duty to assist claimants
But Sanders does not mean that the claimant necessarily has to show what other evidence could have been obtained. Despite its generalizations about the burden to show prejudice, the Court directed remand to the VA in one of the two cases before it, even though that veteran had not shown what additional evidence she might have to show harm. The Court held that although some features of the record suggested that the error was harmless, others suggested the opposite, and "[g]iven the uncertainties, we believe it is appropriate to remand this case so that the Veterans Court can decide whether re-consideration is necessary."
We infer from Sanders that, despite the burden to show prejudice being on the party claiming error by the administrative agency, the reviewing court can determine from the "circumstances of the case"
Though the exact distinction between the two veterans in Sanders is not crystal clear, it is quite clear that no presumptions operate, and we must exercise judgment in light of the circumstances of the case. In this case, the circumstances suggest prejudice at least as strongly as for the veteran whose case was remanded in Sanders. McLeod's physicians differ in their evaluations, and McLeod's testimony, if true, establishes that the VA has made some sort of disability determination. Because we give VA disability determinations great weight, failure to assist McLeod in developing the record by getting his disability determination into the record is reasonably likely to have been prejudicial. The district court reviewing a Social Security determination "may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding."
REVERSED.