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Kay v. Berryhill

United States District Court, C.D. California, Western Division

July 13, 2017

ARTHUR KAY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION

          ANDREW J. WISTRICH UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks reversal of the decision of defendant, the Acting Commissioner of Social Security (the “Commissioner”), denying plaintiff's applications for supplemental security income (“SSI”) benefits. The parties have filed a Joint Stipulation (“JS”) setting forth their respective contentions.

         Administrative Proceedings

         On September 30, 2012, plaintiff filed his SSI benefits application alleging that he had been disabled since February 1, 2009. [See Administrative Record (“AR”) 19, 145-151]. In an October 28, 2014 written hearing decision that constitutes the Commissioner's final decision in this matter, the Administrative Law Judge (“ALJ”) noted that plaintiff previously had been found disabled for a closed period, from February 3, 2009 through March 21, 2011, and that this period of disability was found to have ended due to medical improvement as of March 22, 2011. [See JS 2; AR 21; see AR 56-60]. The ALJ further determined that plaintiff had not rebutted the presumption of continuing non-disability arising from the prior, final administrative decision that he was not disabled as of March 22, 2011. The ALJ further found that plaintiff retained the residual functional capacity (“RFC”) to perform a range of medium work, and that plaintiff's RFC did not preclude performance of his past relevant work as a taxi driver. [AR 22-23]. Accordingly, the ALJ found plaintiff not disabled at any time from September 30, 2012 through the date of the ALJ's decision.[1] [AR 23].

         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. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); 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). 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 Presumption of continuing non-disability

         Although applied less rigidly to administrative than to judicial proceedings, the principles of res judicata apply to administrative decisions. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). A prior, final determination that a claimant is not disabled creates a rebuttable presumption that the claimant retains the ability to work after the date of the prior administrative decision. See Schneider v. Comm'r of Social Sec. Admin., 223 F.3d 968, 973 (9th Cir.2000); Lyle v. Sec'y of Health & Human Servs., 700 F.2d 566, 567 (9th Cir. 1983). This presumption of “continuing non-disability” may be overcome by a showing of “changed circumstances, ” by new facts establishing a previously unlitigated impairment, or where the claimant's unrepresented status has resulted in an inadequate record. Lester, 81 F.3d at 827-828; Chavez, 844 F.2d at 693. The Ninth Circuit has held that “all an applicant has to do to” to rebut the presumption of continuing non-disability is to “raise a new issue in the later proceeding, ” even one that the ALJ finds not severe. Vasquez v. Astrue, 572 F.3d 586, 598 (9th Cir. 2009) (holding that the ALJ erred in applying the presumption of continuing nondisability where the claimant alleged a mental impairment not alleged in his earlier application, and where the claimant entered a different age category after the date of the prior ALJ's decision).

         This case is controlled by Vasquez. Plaintiff rebutted the presumption of continuing non-disability simply by alleging new impairments in his current application that were not raised in his prior application, namely, low back arthritis and bilateral knee arthritis (both of which the ALJ found to be severe). [See AR 21, 56-50]. See Vasquez, 572 F.3d at 598 (holding that the allegation of a new impairment was sufficient to rebut the presumption of continuing non-disability even though the ALJ found the new impairment not severe). Like the claimant in Vasquez, plaintiff also entered a new age category, “closely approaching advanced age, ” by turning 50 after issuance of the prior ALJ's decision on October 3, 2011, when plaintiff was 48. [See AR 56, 60]. See 20 C.F.R. § 416.963(d).

         Having rebutted the presumption of continuing non-disability under Vasquez by alleging a new impairment, plaintiff did not waive his objection to the ALJ's application of the presumption by failing to raise it in his statement of disputed issues, as defendant contends. Since the ALJ improperly relied on the presumption but also proceeded with the sequential evaluation procedure, the ALJ's decision can stand only if her decision is otherwise free of harmful legal error and is based on substantial evidence in the record.

         Past relevant work

         Plaintiff contends that substantial evidence does not support the ALJ's finding that plaintiff has past relevant work as a taxi driver. [JS 4-11].

         “Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1). Substantial gainful activity (“SGA”) is work activity that is usually done for pay or profit and that involves doing significant physical or mental activities, taking into account the nature of the work, how well it is performed, whether it is performed under special conditions, self-employment, and time spent working. See 20 C.F.R. §§ 404.1572-404.1573, 416.972-416.973. “Generally, in evaluating your work activity for substantial gainful activity purposes, our primary consideration will be the earnings you derive from the work activity. We will use your earnings to determine whether you have done substantial gainful activity unless we have information from you, your employer, or others that shows that we should not count all of your earnings.” 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1); see Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (“Earnings can be a presumptive, but not conclusive, sign of whether a job is substantial gainful activity.”).

         Plaintiff completed a work history report stating that his most recent job was as a taxi driver from June 1994 through January 2009. [AR 167, 169-170]. During the September 2014 hearing, plaintiff testified that it had been “at least five years maybe” since he last worked full-time, and that his job was “driving.”[2][AR 44]. While examining the vocational expert (“VE”) during the hearing, the ALJ remarked that “looking at plaintiff's work history, it appears that he has earned income in the past 15 years on the detailed earnings.” [AR 48]. The ALJ asked the VE whether she was “able to discern what position [plaintiff] held.” ...


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