Gene McLeod v. Michael Astrue, Commissioner, SSA
Filed as No. 09-35190, Ninth Circuit Court of Appeals
Amended February 4, 2011

Lower Court Verdict in Denial of SSI Claimant’s Benefits Reversed, Case Remanded

The issue stemmed from a cased filed by Gene McLeod, a 51-year old veteran who applied for supplemental security income (SSI) benefits based on his disability. The Administrative Law Judge (ALJ) found him with three severe impairments: degenerative changes of lumbar spine, history of coronary artery disease and sleep apnea. Unfortunately, the levels of McLeod’s impairments were not so severe to qualify to the “listed” impairments.

The ALJ denied McLeod’s disability based on the following grounds:

• that although McLeod’s conditions can be determined medically, the ALJ said that his statement were not credible
• that he could not perform his past work as a “bartender, breakfast cook, groundskeeper, or golf pro shop clerk”, but had sufficient functional capacity to work as “gambling cashier, telephone solicitor, and order clerk”, therefore disputing the fact that he is unemployable

As a result, McLeod filed a petition for review with the district court in which he claimed that the ALJ failed to develop the record regarding his disability and medical condition. During hearing, McLeod testified that he received a $296 non-service-connected pension based on “unemployability” from the VA (Dept of Veterans Affairs). However, the VA has no record whether McLeod is partially or entirely disabled. In addition to this, no disability rating was submitted to the SSA during the proceedings or to the district court.

McLeod therefore sought an appeal regarding the denial of his Social Security benefits.

During appeal, the Ninth Circuit Court of Appeals found that:

1. The ALJ erred by failing to develop sufficient record on McLeod, including more explanation from doctors at the VA, regarding his ability to work
2. The ALJ failed to obtain a VA disability rating on McLeod

The appeals court held that ALJ has a duty to conduct a full and fair hearing. In addition to this, the court further held that in the case of the inadequate records for evaluation of evidence, the VA rating would have been used. However, even the VA rating was not obtained.

The Ninth District Court of Appeals therefore reversed the ruling of the district court holding that the ALJ’s failure to develop the record through the VA disability determination rating was “good cause”. A remand was therefore required.