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Georgina Palacios v. Michael J. Astrue

February 23, 2012

GEORGINA PALACIOS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant Commissioner of Social Security (the "Commissioner") denying in part plaintiff's application for Supplemental Security Income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the joint stipulation. [See JS 2-3]. In a written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") concluded that plaintiff was disabled for a closed period from April 3, 2007 through May 14, 2009. The ALJ determined that as of May 15, 2009, medical improvement related to plaintiff's ability to work had occurred. The ALJ found that as of that date, plaintiff had the residual functional capacity ("RFC") for light work, provided that she could alternate between sitting and standing every 60 minutes; did not need to kneel, crawl, reach overhead bilaterally, or climb ramps, stairs, scaffolds, or ropes; or do more than frequent fingering and handling bilaterally. [JS 3; Administrative Record ("AR") 15]. The ALJ concluded that plaintiff was not disabled beginning on May 15, 2009 because her RFC on and after that date did not preclude her from performing her past relevant work as a fast food worker. [JS 3; AR 18].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Medical improvement standard Once a claimant is found disabled under the Social Security Act, a presumption of continuing disability arises that affects the burden of production. See Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985); Mendoza v. Barnhart, 436 F.Supp.2d 1110, 1113 (C.D. Cal. 2000). Although the claimant retains the burden of persuasion, the presumption of continuing disability shifts to the Commissioner the burden to come forward with evidence to meet or rebut the presumption. See Bellamy, 755 F.2d at 1381. Benefits cannot be terminated unless substantial evidence demonstrates medical improvement in the claimant's impairment such that the claimant is able to engage in substantial gainful activity. See 42 U.S.C. § 423(f); Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983); see also 20 C.F.R. §§ 404.1594(a), 416.994(b). "The medical improvement standard applies to cases, such as here, involving a closed period of disability." Mendoza v. Apfel, 88 F.Supp.2d 1108, 1113 (C.D. Cal. 2000) (citing Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999); Jones v. Shalala, 10 F.3d 522, 524 (7th Cir.1993); Pickett v. Bowen, 833 F.2d 288 (9th Cir. 1987)).

"Medical improvement" is defined as any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s) (see § 404.1528).

20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i).

Defendant contends that Bellamy has been "conclusively overruled by statutory amendment," and that the Commissioner does not have the burden of rebutting a presumption of continuing disability. [JS 23]. Defendant argues that the Social Security Disability Benefits Reform Act of 1984 ("Reform Act"), Pub. L. No. 98-460, 98 Stat. 1794 (effective October 9, 1984) amended 42 U.S.C. section 423(f), which governs the termination of disability benefits, to provide that "[a]ny determination made under this section shall be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual's condition, without any initial inference as to the presence or absence of disability being drawn from the fact that the individual has previously been determined to be disabled." [JS 23]. .

In the circumstances of this case, defendant's argument lacks merit. Bellamy was decided after the statutory amendment that defendant claims abrogated it. Bellamy also has not been overruled or called into question by a decision of the Ninth Circuit or the United States Supreme Court. Notwithstanding the 1984 amendment of section 423(f), the Ninth Circuit and district courts within this circuit have continued to cite Bellamy for the proposition that a presumption of continuing disability applies when the Commissioner seeks to terminate disability benefits based on medical improvement . See, e.g., Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Mendoza, 436 F.Supp.2d at 1113; Nunn v. Astrue, 2011 WL 1361551, at *2 (C.D. Cal. Apr. 11, 2011).

Furthermore, the presumption of continuing disability does not create a substantive "inference" of continuing disability. Instead, it is an evidentiary presumption affecting the burden of production. When a presumption of continuing disability exists, the burden is still on [the claimant] to prove her case. All the presumption does is impose on the [Commissioner] a burden to come forward with evidence that her condition has changed. Whether that burden has been met is a judgment to be made initially by the [Commissioner], and that judgment cannot be overturned on appeal if it meets the "substantial evidence" standard. But where . . . there is essentially no evidence to support a conclusion that the claimant's condition has changed, the substantial evidence standard has not been met.

Patti v. Schweiker, 669 F.2d 582, 587 (9th Cir. 1982) (italics added).

Defendant cited no case law supporting his contention that the Reform Act abrogated Bellamy. Nonetheless, there is some out-of-circuit authority for the proposition that a presumption of continuing disability is inconsistent with the language of section 423(f). See Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 n.1 (6th Cir. 1994) (per curiam) (observing that Sixth Circuit post-Reform Act decisions had continued to recognize the presumption without addressing the "clear conflict" between such a presumption and the language of section 423(f), and holding that the district court erred in applying a presumption of continuing disability); Rhoten v. Bowen, 854 F.2d 667, 669 (4th Cir. 1988) ("While section 423(f) provides that terminations must be based on substantial evidence of medical improvement, it does not establish a presumption of continuing disability.").

This court, of course, is bound by Ninth Circuit precedent. Furthermore, other courts outside this circuit have allocated the burden of proof in post-Reform Act cases under section 423(f) to the Commissioner, and have suggested that the Commissioner bears the burden of production. See Waters v. Barnhart, 276 F.3d 716, 717, 718-719 (5th Cir. 2002) (holding, in a closed period case under section 423(f), that "the initial burden is on the government to show that the claimant's disability has ended," and "the government must, in all relevant respects, prove that the person is no longer disabled") (citing 42 U.S.C. § 423(f); Griego v. Sullivan, 940 F.2d 942, 943-944 (5th Cir. 1991) (per curiam)); Glenn v. Shalala, 21 F.3d 983, 987 & n.1 (10th Cir. 1994) (concluding that the Commissioner's regulations implementing section 423(f) "recognize[] that before termination of benefits, the [Commissioner] has the burden of showing that a claimant has the ability to engage in substantial gainful activity," and rejecting the Commissioner's argument that the burden is on the claimant to prove that she is unable to perform her past relevant work) (citing 20 C.F.R. § 404.1594(b),(c)(3)(i)&(d)); Robbins v. Barnhart, 205 F.Supp.2d 1189, 1199

(D. Kan. 2002) (holding, in a closed period case, that "the Commissioner has the burden to prove both (1) medical improvement relating to [the] claimant's ability to work, and (2) ability to engage in substantial gainful activity")*fn1 .

Credibility assessment

Plaintiff argues that the ALJ's negative credibility assessment with respect to the period beginning May 15, 2009 was legally erroneous and was not ...


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