Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1980)
Annotate this CaseNo. 87-1703.
United States Court of Appeals, Ninth Circuit.
Before GOODWIN and NELSON, Circuit Judges, and GILLIAM** District Judge.
MEMORANDUM*
Ramiro Rubio appeals a judgment affirming the Secretary's denial of his application for Title II disability insurance benefits. He contends that the Secretary's determination of nondisability prior to June 30, 1978 is not supported by substantial evidence. We have jurisdiction under 28 U.S.C. § 1291 (1982). We affirm.
On April 2, 1980, Rubio filed applications for Title II disability insurance benefits and for Title XVI supplemental security income. He alleged disability due to back and neck injuries and mental problems. Both applications were denied initially and upon reconsideration on the ground that Rubio had failed to establish that he was suffering from a disability. Rubio then requested a hearing before an administrative law judge (ALJ). The ALJ granted his claim for supplemental security income commencing July 1981, but denied his claim for disability insurance benefits. Rubio filed a request for review to the Appeals Council, which affirmed the ALJ's decision. He timely appealed to the district court, which remanded the case to the Secretary because a transcript of the administrative hearing was unavailable. The Appeals Council vacated the previous decision, except for that portion determining that Rubio was entitled to supplemental security income beginning July 1981, and remanded the case to an ALJ to hold a new hearing. The ALJ made the same recommended findings as in his previous decision--that Rubio was not entitled to supplemental security income before July 1981 and was not entitled to disability insurance benefits. The Appeals Council then adopted the ALJ's decision. Rubio appealed the denial of his claim for disability insurance benefits to the district court, and moved for summary judgment. The Secretary filed a cross motion for summary judgment, which the district court granted. Rubio timely appeals the denial of his claim for Title II disability insurance benefits.
The Secretary's findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (1982); Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Miller, 770 F.2d at 848 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
To qualify for disability benefits, the claimant must establish that a medically determinable physical or mental impairment prevents him from engaging in substantial gainful activity and that the impairment is expected to result in death or to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d) (1) (A) (1982); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
In a prior proceeding, an ALJ held that Rubio was not disabled at any time on or before May 24, 1978, and found that Rubio was able to engage in substantial gainful work as of that date. The Appeals Council affirmed the ALJ's decision on January 11, 1979. Rubio failed to appeal. Thus, the 1979 determination is final and binding. Miller, 770 F.2d at 848; Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). Furthermore, the denial "creates a presumption that the claimant was able to work beyond the date of the earlier decision." Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986). The claimant therefore carries the burden of showing "changed circumstances," namely, that his impairments have become more severe since the date of the earlier decision. Id. Accordingly, Rubio is prevented from arguing that he was disabled on or before May 24, 1978, and must overcome the presumption that he was able to work beyond that date.1
Rubio's insured status for the purpose of receiving disability insurance benefits expired on June 30, 1978. Only disabilities existing before that time can trigger disability insurance benefits. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (per curiam); Jackson v. Richardson, 465 F.2d 998 (9th Cir. 1972). Thus, Rubio must show that his disability existed before June 30, 1978, in addition to Rubio's burden of showing changed circumstances since May 24, 1978.
Rubio contends that the ALJ's finding of nondisability is not supported by substantial evidence. This contention lacks merit.
In determining that Rubio was not disabled, the ALJ conceded that Rubio had certain medical impairments (severe chronic cervical and lumbar strain and depressive neurosis) prior to 1981, and concluded that these impairments rendered Rubio unable to return to his former occupation as a carpenter. The ALJ further concluded that Rubio had not acquired any transferable work skills in his former occupation. The ALJ found, however, that Rubio retained a residual functional capacity for light and sedentary work. Based on these findings, the ALJ concluded that Rubio was not disabled prior to June 30, 1978, and thus not entitled to Title II disability insurance benefits.
Rubio claims, however, that after Dr. Kimbrough's statement following his August 21, 1978 re-evaluation, he "remained disabled and unable to return to work." He also asserts that Dr. Katz's July 1981 determination that Rubio has an I.Q. of 61 conclusively established that Rubio was disabled before June 30, 1978. But given Rubio's heightened burden, these reports do not constitute evidence of changed circumstances warranting an award of benefits. Both reports were made after the expiration of Rubio's insured status, and neither explicitly pertains to the period between May 24 and June 30, 1978. Further, Dr. Kimbrough's August 21, 1978 statement that Rubio "remains disabled" refers to Kimbrough's 1974 diagnosis that Rubio was totally disabled. This earlier diagnosis was considered by and rejected by the ALJ in the prior proceeding. Finally, testimony that Rubio had an I.Q. of 61 in July 1981 does not prove that his I.Q. was at that level by June 30, 1978, over three years earlier.2 Thus, because Rubio failed to present evidence sufficient to overcome the presumption that he was capable of working after May 24, 1978, the Secretary met his burden of showing that Rubio retained the ability to perform substantial gainful work. See Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 569 (9th Cir. 1983).
Rubio also argues that the ALJ's determination that July 1981 was the date of onset of disability was arbitrary. The issue before this court, however, is whether the chosen onset date of disability was supported by substantial evidence, not whether an earlier date could have been supported. See Swanson v. Secretary of Health and Human Services, 763 F.2d 1061, 1065 (9th Cir. 1985). The determination by Dr. Katz in July 1981 that Rubio had an I.Q. of 61, Dr. Johnson's July 1981 reexamination of Rubio which provided the basis for his conclusion that Rubio was suffering from a depressive neurosis, and Rubio's own testimony concerning the gradual worsening of his condition due to continuing pain from injuries suffered and the effects of aging, all provide substantial evidence for the ALJ's determination of July 1981 as the disability onset date.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
The Honorable Earl B. Gilliam, United States District Judge, Southern District of California, sitting by designation
Rubio contends that the final decision for res judicata purposes was October 26, 1976, not May 24, 1978, because the ALJ previously issued a decision denying benefits in October 26, 1976. On appeal, however, the district court remanded the cause to the ALJ to consider evidence bearing on Rubio's ability to engage in other substantial gainful work. On remand, the ALJ made a final determination of nondisability based on vocational evidence that Rubio was able to perform other substantial gainful work. The crucial date for res judicata effect of the ALJ's findings is the date of the ALJ's factual finding of nondisability. See Miller, 770 F.2d at 848. Because the ALJ held that Rubio was not disabled at any time on or before May 24, 1978 based on the newly-submitted vocational evidence, res judicata attached on May 24, 1978
Rubio's reliance on Stawls v. Califano, 596 F.2d 1209 (4th Cir. 1979), Davis v. Califano, 616 F.2d 348 (8th Cir. 1979), and Johnson v. Secretary of Health, Education and Welfare, 679 F.2d 605 (6th Cir. 1982), in support of his proposition that later medical evidence demonstrated that he was disabled prior to June 30, 1978, is misplaced. In Stawls, the court noted that proof of a disability at a later date is probative though not conclusive of an earlier disability onset date, and remanded the case because the ALJ failed to indicate the weight he gave to the later medical evidence in arriving at his decision. See Stawls, 596 F.2d at 1213. Here, by contrast, the ALJ clearly indicated the weight accorded to post-eligibility medical evidence, as Rubio himself admits. Davis and Johnson are also inapposite. In Davis, the Eighth Circuit reversed the Secretary's denial of benefits where the ALJ failed to elicit proper testimony from a claimant representing himself. Davis, 616 F.2d at 349-50. The ALJ concentrated his inquiry on the claimant's condition at the date of the hearing, rather than at the date he met the special earnings requirements for disability benefits. Id. at 350. In Johnson, there was direct evidence of disability prior to the disability onset date determined by the ALJ. See Johnson, 679 F.2d at 607. Here, by contrast, there was no direct evidence of disability prior to June 30, 1978, and Rubio was represented by counsel
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