LOEWEN v. SAUL (2020)

MEMORANDUM *

Plaintiff Julie A. Loewen challenges the denial by the Social Security Administration (SSA) of her application for disability insurance benefits, which the district court upheld. We affirm.¹

Loewen was previously denied disability insurance benefits for the period beginning on January 1, 2008, and ending on March 1, 2013. She appealed that decision, but while her appeal was pending, she filed this second application for benefits, for the period of March 2, 2013 through March 31, 2014, and was again denied by another Administrative Law Judge (ALJ). The ALJ in this last case relied in part on the presumption of continuing non-disability, which she found that Loewen had not rebutted. After the ALJ denied Loewen’s second application for disability benefits, another panel of our court upheld the ALJ’s finding of nondisability in Loewen’s first case. See Loewen v. Berryhill, 707 Fed. App'x 907 (9th Cir. 2017). In this appeal, Loewen challenges the second ALJ’s decision on the grounds that the ALJ: (1) did not fully and fairly develop the record, (2) erroneously applied the presumption of continuing non-disability, (3) misconstrued the medical evidence, (4) improperly discounted Loewen’s subjective testimony, and (5) erred in her analysis of Loewen’s residual functional capacity and in finding that Loewen could participate in jobs that exist in significant numbers in the national economy.

The ALJ in Loewen’s second case erred in applying the presumption of continuing non-disability under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988),² because the first ALJ’s disability determination was not yet final as it was still pending on appeal. However, that error was harmless.

In the social security context, “an ALJ’s error is harmless where it is ‘inconsequential to the ultimate nondisability determination.’ ” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)).³ Although the second ALJ prematurely applied the Chavez presumption, we subsequently affirmed the first ALJ’s finding of non-disability. If we were to rule in Loewen’s favor and remand on this issue, then the second ALJ would again have to apply the same presumption as it did the first time in assessing Loewen’s claim. But substantial evidence supports the second ALJ’s finding that Loewen did not rebut the Chavez presumption by showing “changed circumstances” since the prior adjudication period. See Chavez, 844 F.2d at 693; see also Lyle v. Sec’y of Health & Human Serv., 700 F.2d 566, 568 (9th Cir. 1983). As a result, we conclude that the second ALJ’s premature application of the Chavez presumption was inconsequential to the ultimate non-disability determination. Because application of the Chavez presumption was harmless, and Loewen did not rebut that presumption, her other arguments do not overcome the ALJ’s finding of non-disability.

AFFIRMED.

FOOTNOTES

1.   Because the parties are familiar with the facts and procedural history of the case, we recite only those facts necessary to decide this appeal.

2.   The SSA has formally adopted the Chavez presumption. See Social Security Acquiescence Ruling (AR) 97-4(9), 1997 WL 742758 (S.S.A. Dec. 3, 1997).

3.   We do not apply Loewen’s preferred standard, set forth in Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006), because unlike Stout this case does not involve an ALJ’s “failure to properly discuss” its reasoning such that judicial review would be impossible without improperly relying on reasons “that the agency did not invoke in making its decision.” Id. at 1054, 1056. Here, the ALJ’s reasons were clear, and we are able to review the agency’s decision on the grounds that it invoked.