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Joseph M. Salgado v. Carolyn W. Colvin

March 20, 2013

JOSEPH M. SALGADO, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. PROCEEDINGS

Plaintiff filed this action on March 19, 2012, seeking review of the Commissioner's denial of his application for Supplemental Security Income payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on April 12, 2012, and April 13, 2012. The parties filed a Joint Stipulation on December 12, 2012, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.

II. BACKGROUND

Plaintiff was born on November 21, 1948. [Administrative Record ("AR") at 229.] Plaintiff completed one year of college after graduating from high school, and has past relevant work experience as a field worker. [AR at 52, 256.]

On October 19, 1993, plaintiff protectively filed an application for Supplemental Security Income ("SSI") payments.*fn1 [AR at 224-28.] After his application was denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 239-51.] A hearing was held on October 31, 1995, at which time plaintiff appeared with a paralegal representative and testified on his own behalf. [AR at 42-83.] On December 20, 1995, the ALJ determined that plaintiff was not disabled. [AR at 369-78.] Plaintiff requested review of the hearing decision. [AR at 379.] On December 3, 1996, the Appeals Council granted plaintiff's request for review, vacated the ALJ's decision, and remanded the case for further administrative proceedings for the purpose of reassessing plaintiff's medical disability. [AR at 386-88.] A second hearing was held on August 13, 1997, at which time plaintiff again appeared with a paralegal representative and testified on his own behalf. [AR at 84-148.] A medical expert and a vocational expert also testified. [AR at 127-38.] On August 27, 1997, the ALJ determined that plaintiff was disabled and eligible for SSI payments. [AR at 509-19.] On November 5, 1997, the Social Security Administration issued a "Notice of Disapproved Claim," in which it notified plaintiff that he was not eligible to receive SSI payments because he was born in Juarez, Mexico and had never been legally admitted into the United States as an alien. [AR at 523-27.] Plaintiff filed a request for reconsideration on December 16, 1997. [AR at 528-29.] On April 21, 1998, the Social Security Administration denied plaintiff's request for reconsideration based on the finding that his place of birth was Juarez, Mexico. [AR at 532-36.] Plaintiff requested a hearing before an ALJ. [AR at 537-38.] Two hearings were then held before a second ALJ -- on February 25, 1999, and October 27, 1999. [AR at 149-200.] On March 30, 2000, the ALJ determined that plaintiff did not meet the requirements as a citizen or national of the United States, and therefore was not eligible for SSI payments. [AR at 674-78.] Plaintiff requested review of the hearing decision. [AR at 645.] On December 3, 2001, the Appeals Council denied plaintiff's request for review. [AR at 653-54.] However, on February 22, 2002, the Appeals Council concluded that a new hearing and decision were needed based on a complete evidentiary record, and thus granted plaintiff's request for review and remanded the case for further administrative proceedings. [AR at 658-62.] A hearing was held before a third ALJ on June 11, 2002, at which time plaintiff appeared with counsel and testified on his own behalf. [AR at 201-23.] On August 21, 2002, the ALJ found that plaintiff did not meet the requirements as a citizen or national of the United States, and thus denied him SSI benefits. [AR at 16-23.] Plaintiff once again requested review of the hearing decision. [AR at 15.] On September 26, 2003, the Appeals Council denied plaintiff's request for review. [AR at 9-12.]

Plaintiff then filed a civil action in this Court, Case No. ED CV 03-1320-PLA, challenging the Commissioner's decision. On October 26, 2004, the Court remanded the matter for further proceedings, concluding that the August 21, 2002, decision of the third ALJ failed to provide appropriate reasons for rejecting the testimony of plaintiff and his family members and failed to properly consider evidence from the Mexican Consulate. [AR at 727-727H.] On December 30, 2004, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings consistent with the Court's 2004 Order. [AR at 728.] On September 29, 2005, a fourth hearing was held before a fourth ALJ. [AR at 741-61.] On June 6, 2006, that ALJ determined that plaintiff did not meet the requirements as a citizen or national of the United States, and therefore was not eligible for SSI payments. [AR at 695-701.]

Plaintiff filed a second civil action in this Court, Case No. ED CV 06-848-PLA. Pursuant to a Stipulation to Voluntary Remand, the Court remanded the case for further proceedings on February 22, 2007, directing the ALJ to consider the certified birth certificate issued by the State of Texas and to provide another hearing on the issue of whether plaintiff is a United States citizen.

[AR at 1115-19.] On April 3, 2007, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings consistent with the Court's 2007 Order. [AR at 1120-23.] Plaintiff declined to appear for a hearing and requested a decision based on the evidence in the record. [AR at 766.] On January 25, 2008, the fourth ALJ again found that plaintiff did not meet the requirements as a citizen or national of the United States. [AR at 765-66.]

Plaintiff then filed a third civil action in this Court, Case No. ED CV 08-416-PLA. While that case was pending, on May 29, 2008, plaintiff filed a new application for SSI payments. [AR at 1218-24.] On October 8, 2008, the agency again found with respect to the new application that plaintiff was disabled and eligible for SSI payments. [AR at 1227-41.] Thereafter -- on August 19, 2009 -- in Case No. ED CV 08-416-PLA, the Court entered judgment for plaintiff and remanded the case back to the Commissioner for further proceedings, directing the ALJ to properly consider the evidence as a whole, including the lay witness statements of plaintiff's sisters, uncle, and brother-in-law. [AR at 1243-55.] On January 23, 2010, the Appeals Council remanded the case involving the 1993 application back to an ALJ, and also reopened the determination of eligibility in connection with plaintiff's 2008 application because it found that that determination was based on an erroneous application of internal agency policy. [AR at 1266-71.] On June 30, 2011, a fifth ALJ held a hearing, at which time plaintiff again appeared with counsel and testified on his own behalf. [AR at 1564-96.] On November 15, 2011, the fifth ALJ again determined that plaintiff is not a United States citizen. [AR at 1182-94.] This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the ...


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