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Upchurch v. Colvin

United States District Court, District of Montana, Great Falls Division

March 26, 2014

DIANA K. UPCHURCH, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

FINDINGS AND RECOMMENDATION TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT

Keith Strong United States Magistrate Judge

I. Synopsis

Ms. Upchurch is seeking disability benefits under the Social Security Act. The Administrative Law Judge (ALJ) determined Ms. Upchurch became qualified for disability benefits in December 2008. The ALJ determined her condition then improved so that she ceased to be disabled after March 2011. The ALJ’s finding that Ms. Upchurch became eligible for benefits in 2008 is not in dispute. The ALJ’s finding that Ms. Upchurch ceased to be eligible for benefits April 1, 2011 is supported by progress reports from Ms. Upchurch’s surgeon and other evidence, and is not based on legal error. Summary judgment should be granted in favor of the Commissioner.

II. Jurisdiction

The District Court is vested with jurisdiction by 42 U.S.C. § 405(g). The case was filed in the Great Falls Division of the District of Montana. Doc. 1. Venue is proper, as the plaintiff resides in Hill County, Montana. Doc. 1.2(c)(3). The case is assigned to United States District Judge Brian Morris, Doc. 17, and referred to the undersigned to submit proposed findings of fact and recommendations of law on all dispositive motions. Doc. 9.

III. Status

Ms. Upchurch filed for Supplemental Security Income and Disability Insurance Benefits in July 2009. Tr. 13. She alleged a disability onset date of December 2, 2008. Tr. 153. Her claim was denied initially in February 2010. Tr. 106. Ms. Upchurch filed a request for reconsideration, which was denied in August 2010. Tr. 113-114. She requested a hearing with an ALJ; the hearing occurred on September 29, 2011. Tr. 50-101 (hearing transcript).

The ALJ issued a decision in December 2011, concluding that Ms. Upchurch qualified for DIB and SSI benefits for the period December 02, 2008 through March 31, 2011. Tr.14-27. He concluded that her impairments improved by April 1, 2011 to the extent that she no longer qualified for benefits. Tr. 14-27. The Appeals Council denied review of Ms. Upchurch’s case. Tr. 1-4. Consequently, the ALJ’s determination is the Commissioner’s final decision for purposes of judicial review. 20 C.F.R. § 416.1481.

IV. STANDARDS

Court’s role

Review in this case is limited. The Court may set aside the Commissioner’s decision only where the decision is not supported by substantial evidence or where the decision is based on legal error. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence has also been described as “more than a mere scintilla” but “less than a preponderance.” Desrosiers v. Sec. of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).

The District Court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner’s conclusion. Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)). The court may reject the findings not supported by the record, but may not substitute its findings for those of the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

Disability criteria

A claimant is disabled for purposes of the Social Security Act if the claimant demonstrates by a preponderance of the evidence that: (1) the claimant has a “medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months, ” and (2) the impairment or impairments are of such severity that, considering the claimant’s age, education and work experience, the claimant is not only unable to perform previous work, but also cannot “engage in any other kind of substantial gainful work which exists in the national economy.” Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).

Initial determination

In determining whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process. Corrao v. Shalala, 20 F.3d 943, 946 (9th Cir. 1994) (citing 42 U.S.C. § 1382C(a)(3)). If the Commissioner finds that a claimant is disabled or not disabled at any step in this process, the review process is terminated. Id. at 946. At step one, the claimant must show he is not currently engaged in substantial gainful activity. Id. At step two, the claimant must demonstrate that he has a severe impairment. Id. At step three, the ALJ must determine whether a claimant’s impairment meets or equals the criteria of the Listing of Impairments. Step four provides that if the claimant does not have a listed impairment, the claimant must establish a prima facie case of disability by showing an inability to engage in past work because of the medical impairments. Id. If that case is made, at step five the burden shifts to the Commissioner to prove the claimant can engage in other types of substantial gainful work existing in the national economy given the claimant’s age, education, work experience, and residual functional capacity. Jones, 760 F.2d at 995.

Termination of disability

In cases involving the termination of disability benefits, the Commissioner must determine if there has been any medical improvement in the claimant’s impairments and, if so, whether the improvement is related to the claimant’s ability to work. 20 C.F.R. § 404.1594(a). This case involves a somewhat different scenario: a “closed period”determination, in which the ALJ found Ms. Upchurch was disabled for a finite period that started and ended before his decision. See Pickett v. Bowen, 833 F.2d 288, 289 n. 1(11th Cir. 1987) (describing “closed period case.”). The Ninth Circuit has not addressed whether the termination standard in § 1594(a) applies in closed period cases. See Bruna v. Astrue, 2013 WL 1402362, *16 (N.D. Cal.)(not reported). But other circuits generally have determined it does.[1] District courts in the Ninth Circuit have done the same.[2]

The ALJ correctly applied that standard in this case, both to Ms. Upchurch’s DIB and SSI benefits. For potential termination of DIB, application of the standard involves an 8-step analysis. 20 C.F.R. § 404.1594(f). The analysis for potential termination of SSI benefits is identical to the DIB analysis except that it skips the first step. 20 C.F.R. 404§ 994(b)(5).

Therefore the ALJ must use Steps 1-8, below, to determine if Ms. Upchurch’s eligibility for DIB ceased prior to the hearing, and Steps 2-8 to determine if her eligibility for SSI benefits ceased prior to the hearing.

1. Was Ms. Upchurch engaged in substantial gainful activity? If yes, she was no longer entitled to ...

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