United States District Court, D. Arizona
ORDER
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE
Plaintiff
Juana Leair applied for disability insurance benefits and for
a period of disability, alleging disability beginning May 24,
2012. (A.R. 19.) The claim was denied initially on April 22,
2014, and upon reconsideration on October 3, 2014.
(Id.) Plaintiff then requested a hearing.
(Id.) On April 5, 2016, Plaintiff and a vocational
expert (VE) testified at a hearing before an Administrative
Law Judge (ALJ). (Id. at 48-73.)
On May
26, 2016, the ALJ issued a written decision finding Plaintiff
not disabled within the meaning of the Social Security Act,
which became the Commissioner's final decision when the
Appeals Council denied review. (Id. at 1-3.)
On
August 22, 2017, Plaintiff sought review by this Court. (Doc.
1.) After receipt of the administrative record (Doc. 10), the
parties fully briefed the issues for review (Docs. 13, 16).
For reasons stated below, the Court affirms the
Commissioner's decision.
I.
Background
Plaintiff
previously filed a Title II benefits application for a period
of disability and disability insurance benefits, and received
a final decision dated May 23, 2012. (A.R. 19, 77-85.)
Plaintiff's instant application for disability alleges an
onset date one day later, on May 24, 2013. (Id. at
19.) In the instant decision, the ALJ found “no basis
to reopen that decision, ” that the presumption of
continuing nondisability applied, and that Plaintiff had not
rebutted the presumption by showing a changed circumstance
material to the determination of disability. (Id.)
The ALJ reasoned that Plaintiff did not “provide[]
sufficient evidence to rebut the presumption of
non-disability.” (Id.) Ordinarily, the
ALJ's analysis would end here.
In an
abundance of caution, however, the ALJ proceeded to conduct
the requisite analysis had Plaintiff rebutted the presumption
by examining and reviewing the evidence. (Id.) The
ALJ did as much “in order to preclude an unnecessary
basis for a remand.” (Id.) Ultimately, the ALJ
found Plaintiff not disabled at any time from May 24, 2012,
the alleged onset date, through December 31, 2012, the date
last insured. (Id. at 30.)
II.
Standard of Review
Where
there is a finding against disability in a previous
proceeding, there is a presumption of continuing
nondisability in future proceedings. Chavez v. Bown,
844 F.2d 691, 693 (9th Cir. 1988). A claimant can overcome
this presumption by proving “changed
circumstances” that indicate greater disability than
existed in the prior proceeding. Id. Changed
circumstances may include an increase in the severity of the
claimant's impairments, a change in the claimant's
age category, or the existence of an impairment that was not
considered in an earlier decision. Lester v. Chater,
81 F.3d 821, 827-28 (9th Cir. 1995).
III.
Discussion
The
Commissioner contends that, as a threshold matter, Plaintiff
must show that the ALJ erred in finding that Plaintiff failed
to rebut the presumption of continuing non-disability. (Doc.
16 at 2-3.) The Court agrees. On appeal, Plaintiff challenges
whether the ALJ's RFC determination is supported by
substantial evidence, arguing that the ALJ erroneously
discounted the medical opinion of her treating physician and
rejecting her symptom testimony. The entire discussion of the
rebuttable presumption in Plaintiff's opening brief is
confined to a footnote, which argues that “[t]he prior
ALJ decision and the evidence underlying that decisions is
not part of this record, so it [is] impossible to compare the
two records to determine whether there are changed
circumstances.” (Doc. 13 n.2.) In her reply brief,
Plaintiff supplements her argument, arguing for the first
time that the ALJ waived reliance on the presumption of
continuing nondisability when he proceeded with an
alternative basis for his decision under the five-step
sequential analysis.[1]
A.
Medical Records
Plaintiff
contends that she should not be expected to rebut the
presumption of continuing nondisability because the evidence
underlying the initial decision is not part of the instant
record. (Doc. 18 at 5.) In particular, Plaintiff argues that
“[t]he only evidence regarding the prior administrative
proceedings is the ALJs decision itself. There is a list of
18 medical exhibits that were considered as part of the prior
proceeding, but the actual records are not part of this
record.” (Id.) Plaintiff argues that, by not
including the prior exhibits in the current record, she is
deprived of the means to rebut the presumption from the prior
determination. (Id.) The Court disagrees. Plaintiff
cites no authority supporting such a proposition, nor is the
Court aware of any. Plaintiff also does not cite to any
agency regulation requiring the Commissioner to include all
of the evidence supporting the prior ALJ's decision in a
subsequent claim. Moreover, because Plaintiff was a party to
the prior disability proceedings, she presumably has access
to the evidence underlying that decision, which would include
her own medical records. There is no reason to dispose of the
continuing nondisability presumption.
B.
Waiver ...