                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BETHANY VARDAMAN,                               No.    18-35602

                Plaintiff-Appellant,            D.C. No.
                                                2:17-cv-00303-CWD
 v.

ANDREW M. SAUL, Commissioner of                 MEMORANDUM*
Social Security,

                Defendant-Appellee.

                   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.
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


                                          2
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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