Julie Loewen v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2020
• Docket: 19-35226
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIE A. LOEWEN, No. 19-35226

Plaintiff-Appellant, D.C. No. 3:18-cv-05419-DWC

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Argued and Submitted June 3, 2020 Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 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. 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 non-

disability 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

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).

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

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.

3 presumption was harmless, and Loewen did not rebut that presumption, her other

arguments do not overcome the ALJ’s finding of non-disability.

AFFIRMED.