Monica B. Rush v. Carolyn W. Colvin, No. 2:2014cv00385 - Document 20 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. The decision of the Commissioner is affirmed. (mz)
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Monica B. Rush v. Carolyn W. Colvin Doc. 20 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MONICA B. RUSH, 12 13 14 15 Plaintiff, vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 14-00385 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Monica B. Rush seeks review of the Social Security Commissioner’s 18 decision that she is not entitled to receive disability benefits. She argues that the 19 Administrative Law Judge wrongly determined that she was suited for particular jobs 20 identified by the vocational expert. She seeks reversal and either remand or an order 21 awarding her benefits. 22 A preliminary problem confronts her, however. This was not her first denial 23 of disability benefits, but her second. And she has not overcome the presumption that, 24 since she was once found not to be disabled, non-disability continues to be her status. 25 On December 3, 2010, the Commissioner denied Plaintiff’s first application 26 for disability benefits. [AR 76-84] Nine months later, Plaintiff filed the application that 27 gave rise to the present appeal. [AR 168] Plaintiff has asserted that the onset of her 28 Dockets.Justia.com 1 disability occurred on December 4, 2010 [id. ] — that is, one day after the Commissioner 2 determined that she was not disabled. 3 In a long line of cases, the Court of Appeals has held that an adjudication of 4 non-disability leads to a presumption of continuing non-disability. Chavez v. Bowen, 844 5 F.2d 691 (9th Cir. 1988); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Lyle v. 6 Secretary of Health and Human Services, 700 F.2d 566. 568 (9th Cir. 1983). An applicant 7 can rebut this presumption by showing that circumstances have changed; if circumstances 8 have changed, then a previously able person could, in theory, have become disabled. The Administrative Law Judge here specifically found that circumstances had 9 10 not changed, and that the presumption of continuing disability therefore applied: 11 12 In this case, the claimant has failed to prove changed 13 circumstances indicating a greater disability than established in 14 the prior decision. There was no change in criteria for 15 considering the claim, no evidence submitted that new 16 impairments exist, although alleged, and no evidence that the 17 previously found impairments had significantly worsened. 18 Therefore, the claimant has not rebutted the presumption of 19 continuing non-disability. The claimant is found not disabled at 20 Step Five in this decision. 21 22 [AR 24] In this Court, Plaintiff did not challenge this finding of the Administrative Law 23 Judge. 24 In fact, initially neither party even addressed this finding, except for a footnote 25 reference by the Commissioner. The Court therefore called for additional briefing. The 26 Government asserted that this finding was conclusive and that the Administrative Law 27 Judge made a further adjudication at Step Five probably out of an abundance of caution. 28 Plaintiff took a different tack. Relying on Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th -2- 1 Cir. 2012), Plaintiff asserts that the presumption of continuing non-disability “is no longer 2 a valid legal rationale applicable to Social Security Administration hearings.” (Plaintiff’s 3 Supplemental Memorandum of Points and Authorities at 2:19-20.) Plaintiff states that 4 Garfias-Rodriguez stands for the proposition that a Court must defer to an agency 5 interpretation of an ambiguous statute when that interpretation is made after a Court has 6 interpreted the statute to the contrary; that the Social Security Administration, in its 7 Acquiescence Ruling 97-4(9), interpreted “the ambiguous statute” (which Plaintiff does not 8 identify) “to hold the opposite of Chavez” (Plaintiff’s Supp. Mem. at 4:7-11); and that 9 therefore “the presumption of continuing non-disability . . . does not survive in light of the 10 Commissioner’s interpretation that Ms. Rush was entitled to a de novo review.” (Plaintiff’s 11 Supp. Mem. at 4:18-22.) 12 There are many problems with Plaintiff’s analysis, but the Court will focus 13 on the most glaring: Plaintiff has completely mis-stated the Commissioner’s Acquiescence 14 Ruling. Following Chavez, the Commissioner did issue an acquiescence ruling, but it 15 states the exact opposite of what Plaintiff says. Plaintiff quotes from a portion of the ruling 16 stating that the Social Security Administration considers the facts de novo when 17 determining disability with regard to an unadjudicated period, and that under Social 18 Security policy, a prior final decision that a claimant is not disabled does not give rise to 19 any presumption of a continuing condition of non-disability. 20 Acquiescence Ruling, however, comes under the heading “Statement As to How Chavez 21 Differs From Social Security Policy.” It is not a prescription of how the Social Security 22 Administration will act after the Chavez decision; it is a description of what the 23 Administration’s policy was before the Chavez decision. The Acquiescence Ruling goes 24 on, under the heading “Explanation of How SSA Will Apply The Chavez Decision Within 25 The Circuit,” to make clear that it is adopting Chavez as its policy — that is, it is 26 acquiescing in the Chavez decision. It then says directly: “When adjudicating the 27 subsequent claim involving an unadjudicated period, adjudicators will apply a presumption 28 of continuing nondisability and determine that the claimant is not disabled with respect to -3- This portion of the 1 that period, unless the claimant rebuts the presumption.” Far from saying that the 2 Commissioner will not apply a presumption of non-disability, then, the Acquiescence 3 Ruling states directly that the Commissioner will apply a presumption of non-disability. 4 Plaintiff’s contrary statement to this Court is such an egregious mis-statement 5 of the Commissioner’s Acquiescence Ruling that the Court must wonder whether it 6 constitutes a deliberate attempt to mislead the Court, and whether the Court should sanction 7 Plaintiff for this tack. It appears barely conceivable that an attorney could so misconstrue 8 a ruling. In the exercise of prudence, however, the Court will act on the assumption that 9 counsel has been sloppy but not deliberately misleading. 10 Plaintiff then goes on to assert that, even if the presumption of continuing non- 11 disability applies, that Plaintiff rebutted that presumption. She says that on this decision 12 the Administrative Law Judge found that Plaintiff had the residual functional capacity to 13 perform simple repetitive work with one to two step instructions, whereas in the prior 14 decision the Administrative Law Judge found that Plaintiff had the residual functional 15 capacity to perform simple repetitive tasks. Because Plaintiff believes that the language 16 about one to two step instructions is a greater limitation, Plaintiff says that the 17 Administrative Law Judge found that Plaintiff’s impairment was greater on the second 18 decision than on the first, and any presumption of continuing non-disability has been 19 rebutted. 20 Plaintiff thus does not say that in fact any impairment has worsened — that 21 is, Plaintiff does not say that substantial evidence to support the Administrative Law 22 Judge’s decision was lacking — but rather that the Administrative Law Judge, by her 23 findings, implicitly acknowledged that Plaintiff’s impairment has worsened. This is 24 unpersuasive. 25 To begin with, on the second decision, the Administrative Law Judge barely 26 found that Plaintiff had a severe impairment; the only impairment that she identified was 27 a history of alcohol abuse [AR 24], whereas on the first decision the Administrative Law 28 Judge had found that Plaintiff had two severe impairments — a history of alcohol -4- 1 dependence, and major depressive disorder. [AR 78] Thus, if one were to draw inferences 2 by implication, one well might say that Plaintiff had improved, because there was not a 3 finding of a severe impairment of depression on the second decision. Even more 4 important, however, is the stubborn fact that the Administrative Law Judge explicitly found 5 that there was “no evidence that the previously found impairments had significantly 6 worsened.” [AR 24] One need not look to implication in the face of such a direct 7 statement. In light of these facts, Plaintiff’s argument that her impairment had worsened 8 and therefore she had rebutted the presumption of continuing non-disability is not 9 persuasive. 10 The Administrative Law Judge having found that Plaintiff did not rebut the 11 presumption of continuing non-disability determines the outcome of this appeal. Any 12 further decision by the Administrative Law Judge, specifying certain jobs that Plaintiff 13 could perform, was unnecessary and would not affect the decision by this Court. It appears 14 to the Court that Plaintiff’s argument on that matter is unavailing, in attempting to 15 bootstrap sub-parameters within the DICTIONARY OF OCCUPATIONAL TITLES into this Social 16 Security Appeal, but the Court need not specifically so rule. The Administrative Law 17 Judge committed no error in applying the presumption of continuing non-disability, and 18 substantial evidence supported the Administrative Law Judge’s decision. In accordance with the foregoing, the decision of the Commissioner is 19 20 affirmed. 21 22 DATED: November 3, 2014 23 24 25 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 26 27 28 -5-
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