Innerebner v. Barnhart

26 F. App'x 744

Opinion

MEMORANDUM

**

The Commissioner of the Social Security Administration (“Commissioner”) has conceded that the Administrative Law Judge did not properly apply SSA regulations in determining whether Innerebner performed substantial gainful activity while employed at Albertson’s from 1993 to 1996. In particular, the Commissioner concedes that wages earned for hours during which Innerebner’s job coach himself performed Innerebner’s work should not have been considered in calculating substantial gainful activity.

In light of this and other possible errors by the Administrative Law Judge, the Commissioner has offered Innerebner all of the benefits that he would have received had the Administrative law Judge determined that “plaintiff Innerebner did not perform ‘substantial gainful activity’ and that he continues to qualify for Title II Social Security benefits pursuant to 42 U.S.C. §§ 402 and 423(d).” This offer was first articulated in a letter dated November 28, 2000, from Department of Justice attorney Mark Davies to Innerebner’s appellate counsel, Gerald A. McIntyre. The offer has been reiterated both in the Commissioner’s brief and in argument before this court.

Innerebner desires to challenge the SSA’s interpretation of 20 C.F.R. §§ 404.1574(a)(2) & 404.1576, but under the terms of the Commissioner’s offer, the challenged interpretations no longer apply to the substantial gainful activity calculation at issue here. We decline to make a determination concerning the propriety of regulations not currently being enforced in an adverse manner. See Spencer-Lugo v. INS, 548 F.2d 870, 871 (9th Cir.1977).

With regard to the district court’s order denying class certification, Innerebner continues to have a sufficient personal stake in obtaining class certification. See Wade v. Kirkland, 118 F.3d 667, 669 (9th Cir.1997). The Commissioner argues that the issue has been waived because Innerebner failed to raise class certification in his opening brief, but we permitted Innerebner an opportunity to supplement his opening brief to address the issue. See Fed. R.App. P. 27(b); 9th Cir. R. 27-1 advisory committee’s note 1. The district court did not abuse its discretion in concluding that the putative class proposed by Innerebner is not defined with sufficient precision, does not promote efficiency and economy of litigation, and is unnecessary because the SSA has represented that the Commissioner’s now-clarified interpretation of 20 C.F.R. § 404.1574(a)(2) will be consistently applied to beneficiaries similarly situated to Innerebner. The district court’s denial of class certification is therefore AFFIRMED.

REMANDED for proceedings consistent with this memorandum disposition, including a district court remand to the SSA to honor and enforce the Commissioner’s commitment as detailed herein.

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.