Peter D. Mooney v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER D. MOONEY,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
No. 09-35436
D.C. No. 3:08-cv-06128-HA
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted March 5, 2010
Portland, Oregon
Before: PAEZ, TALLMAN and M. SMITH, Circuit Judges.
Plaintiff-Appellant Peter D. Mooney seeks review of the Commissioner of
Social Security Administration’s decision to deny him disability benefits under
Title II of the Social Security Act (Act), 42 U.S.C. § 401, et seq. The district court
affirmed the denial. We presume the parties’ familiarity with the facts and do not
FILED
MAR 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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recount them here except as necessary to explain our decision. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the district court with
instructions to remand to the Administrative Law Judge (ALJ) for additional
proceedings.
The district court’s decision is reviewed de novo, Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005), and the Commissioner’s decision is reviewed for
substantial evidence, Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989).
I. Treating psychologist’s opinion
The ALJ rejected the opinion of Dr. Turner, Mooney’s treating
psychologist, which concluded, based on objective testing, that Mooney was
unable to work “due to both psychological and medical factors.” First, the ALJ
rejected Dr. Turner’s opinion because Mooney “was still performing landscape
work,” even though Mooney’s landscape job was through the VA’s sheltered work
program, the purpose of which is to provide jobs for vets who are not able to hold
a competitive job. Second, the ALJ rejected Dr. Turner’s opinion because “[a]t no
time . . . was there any report of the claimant’s inability to get along with others or
the staff” or of him being violent, even though substantial evidence in the record
shows that Mooney had tremendous difficulty getting along with people outside of
the sheltered VA environment and that Dr. Turner found Mooney unemployable

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due to his anxiety, depression, and physical limitations as well as his “great
difficulty accepting any criticism.” Finally, the ALJ surmised that Dr. Turner lied
or exaggerated about Mooney’s condition so as to aid “his re-admittance into VA
transitional housing,” without offering any evidence for this conclusion.
Therefore, the ALJ’s decision to discredit Dr. Turner’s opinion is not justified by
clear and convincing reasons supported by substantial evidence. See Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Holohan v. Massanari, 246 F.3d 1195,
1202 (9th Cir. 2001).
II. VA GAF scores
The ALJ gave the VA GAF scores “little weight” because she found that (1)
they were not consistent or supported by evidence of severe limitations and (2)
they were based on the underlying premise that Mooney “basically had no work
history since his discharge from the Army in 1991” even though he had worked as
a parking lot attendant.
The GAF scores assigned by medical providers ranged from 43 to 49, all
within the “serious symptoms” range. The ALJ overstated the significance of the
score variance and did not consider the consistency of the scores with all treatment
comments and diagnoses.

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While the ALJ correctly noted that many of Mooney’s treatment providers
explicitly mentioned his lack of employment as partial support for their diagnoses,
this is not sufficient justification for discrediting the diagnoses altogether. The
record does not reflect whether the providers knew that Mooney had done some
limited work—approximately 3 hours per day for one day per week—as a parking
lot attendant. It is possible that they knew of the work but found it insignificant or,
perhaps, even considered it additional evidence of Mooney’s inability to be
competitively employed, especially in light of their knowledge of his chronic
homelessness and joblessness. Regardless, it is unlikely that their diagnoses would
have been different had they known of his limited work experience because, as
suggested by their diagnoses, he was unable to sustain this job. See Smolen v.
Chater, 80 F.3d 1273, 1286-88 (9th Cir. 1996)
III. VA award of disability
The VA awarded Mooney 100% service-connected disability, but the ALJ
rejected the VA’s 100% disability award because “the full record indicated the
claimant was able to sustain work at the competitive level.” In this circuit, “an
ALJ must ordinarily give great weight to a VA determination of disability.” See
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Indeed, the ALJ
must give “persuasive, specific, valid reasons” for giving less weight to the VA’s

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disability rating. Id. Here, the ALJ’s reasoning was insufficient to overcome the
VA’s determination.
For the foregoing reasons, we REVERSE the district court with instructions
to REMAND to the ALJ for the step five determination as to whether Mooney can
engage in other types of substantial gainful work that exists in the national
economy. See 20 C.F.R. §§ 404.1520(g), 416.920(g5). In doing so, the ALJ
should give great weight to Dr. Turner’s opinion, the VA GAF scores, and the VA
disability award, unless the ALJ can articulate clear and convincing reasons
supported by substantial evidence in the record for not doing so.
REVERSED and REMANDED.

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