Cynthia Carrillo-Yeras v. Michael AstrueCynthia Carrillo-Yeras v. Michael Astrue
Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252) YNTHIA D. C ,
Plaintiff-Appellant, No. 09-56515 (cid:253) v. D.C. No. 2:08-cv-05560-AN
M ICHAEL J. A STRUE , Commissioner of Social Security, OPINION (cid:254) Defendant-Appellee. Appeal from the United States District Court for the Central District of California Arthur Nakazato, Magistrate Judge, Presiding Argued and Submitted August 30, 2011—Pasadena, California Filed October 25, 2011 Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman COUNSEL Lawrence D. Rohlfing, Santa Fe Springs, California, for the plaintiff-appellant.
Scott J. Borrowman, Social Security Administration, Office of General Counsel, San Francisco, California, for the defendant-appellee.
OPINION SILVERMAN, Circuit Judge:
Cynthia Carillo-Yeras appeals the district court’s decision
affirming the Social Security Administration’s denial of her
applications for disability insurance benefits and supplemental
security income. Because the SSA took nearly two years to
investigate whether to reopen a favorable determination on
one of Carillo-Yeras’s applications, much longer than the pre-
sumptive time of six months,
I. Background
In 1996, Carillo-Yeras fell and fractured her coccyx. The fracture did not heal properly and she underwent surgery to remove a fragment of the bone. She continued to suffer from low back pain after the surgery, which worsened following the birth of her son in 1999. Carillo-Yeras’s doctors treated the pain with prescription painkillers and a muscle relaxant. She received a series of epidural steroid injections and under- went a brief course of physical therapy. In July 2001, after these treatments failed to eliminate her pain, Carillo-Yeras had another surgery. The surgery, a bilateral laminotomy- foraminotomy, appeared to help relieve Carillo-Yeras’s symp- toms, and she received only intermittent, conservative treat- ment until 2005. In 2005 and 2006, she sought regular treatment and received additional epidural steroid injections and facet blocks.
On May 25, 2000, Carillo-Yeras applied for disability insurance benefits, alleging disability due to low back pain beginning in July 1999. After Carillo-Yeras’s application was denied initially and on reconsideration, she requested a hear- ing before an Administrative Law Judge. On March 24, 2003, after a hearing, the ALJ denied Carillo-Yeras’s application, finding that she had the residual functional capacity to per- form her past work as a medical receptionist or hospital admitting clerk. Carillo-Yeras sought Appeals Council review of the decision.
On June 20, 2003, while her request for Appeals Council review of the ALJ’s unfavorable decision was pending, Carillo-Yeras filed a second application for disability insur- ance benefits and for supplemental security income. This time, she alleged disability beginning March 25, 2003 due to back injury, numbness and tingling with a burning sensation, and a diagnosis of arachnoiditis. On August 19, 2003, the state agency responsible for the initial determination of dis- ability found that Carillo-Yeras met the criteria of the medical listing for spinal arachnoiditis. As a result, the agency con- cluded that Carillo-Yeras was disabled as of March 25, 2003. She began receiving disability insurance benefits and supple- mental security income.
On June 2, 2004, the Appeals Council granted Carillo- Yeras’s request for review of the March 24, 2003 denial of her first application. It also reopened the August 19, 2003 favorable determination on her second application. The Appeals Council notified Carillo-Yeras of its intent to consol- idate the two cases and remand for a new hearing. After receiving no comments from Carillo-Yeras on its proposed course of action, the Appeals Council remanded the cases on September 15, 2004.
On May 16, 2006, after receiving additional medical records and conducting a supplemental hearing, the ALJ issued a new decision denying both of Carillo-Yeras’s appli- cations for benefits. The ALJ made no mention of the 23- month delay between the time the case was reopened and the new decision rendered, nor did he make any finding that the SSA had been diligent in pursuing the investigation of the matter. He found that the record did not support a diagnosis of spinal arachnoiditis and concluded that Carillo-Yeras was not disabled because she had the residual functional capacity to perform her past relevant work. Carillo-Yeras sought Appeals Council review of the unfavorable decision, and the Council denied her request.
Carillo-Yeras then filed a complaint in district court, argu-
ing that the applicable regulations prohibited the ALJ from
revising the August 19, 2003 favorable determination without
first finding that the agency diligently pursued its investiga-
tion into whether it should revise, and that the ALJ erred in
rejecting the opinion of Carillo-Yeras’s treating physicians
and in finding her subjective symptom testimony to be “not
entirely credible.” The district court affirmed the ALJ’s denial
of benefits, and Carillo-Yeras appeals. We have jurisdiction
under
II. Discussion
A. Standard of Review
We review de novo the district court’s order upholding the
ALJ’s denial of benefits.
Moisa v. Barnhart
, 367 F.3d 882,
885 (9th Cir. 2004). We may overturn the ALJ’s decision
“only if it is not supported by substantial evidence or if it is
based on legal error.”
Thomas v. Barnhart
,
The SSA may reopen a determination regarding eligibility
for disability insurance benefits (a) “[w]ithin 12 months of the
date of the notice of the initial determination, for any reason;”
(b) “[w]ithin four years of the date of the notice of the initial
determination if [the agency] find[s] good cause, as defined
in § 404.989, to reopen the case;” or (c) “[a]t any time,” if the
determination was obtained by fraud or in certain other speci-
fied circumstances.
In certain circumstances, the SSA may revise a determina-
tion after the expiration of the time limits in
We may revise a determination or decision after the applicable time period in§ 404.988(a) [or§ 416.1488(a) ] or§ 404.988(b) [or§ 416.1488(b) ] expires if we begin an investigation into whether to revise the determination or decision before the appli- cable time period expires. We may begin the investi- gation either based on a request by you or by an action on our part. The investigation is a process of gathering facts after a determination or decision has been reopened to determine if a revision of the deter- mination or decision is applicable.
(a) If we have diligently pursued the investigation to its conclusion, we may revise the determination or decision. The revision may be favorable or unfavor- able to you. “Diligently pursued” means that in light of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted. Diligent pursuit will be presumed to have been met if we con- clude the investigation and if necessary, revise the determination or decision within 6 months from the date we began the investigation.
(b) If we have not diligently pursued the investiga- tion to its conclusion, we will revise the determina- tion or decision if a revision is applicable and if it *7 19500
will be favorable to you. We will not revise the determination or decision if it will be unfavorable to you.
Carillo-Yeras argues that the SSA impermissibly revised the August 19, 2003 favorable determination because it did not diligently pursue the revision. Carillo-Yeras’s argument is primarily based on language found in the SSA’s Program Operations Manual System (“POMS”), an internal agency document used by employees to process claims. [1] POMS DI 27505.005C, which applies to disability insurance claims, states: “If the investigation and revision take longer than 6 months, SSA must show that the issue was diligently pur- sued.” See also POMS GN 04001.060B.1.b (“If the investiga- tion takes more than 6 months, then SSA will have to show that it was diligently pursued if the revision would be unfa- vorable to the individual.”). Carillo-Yeras argues that these sub-regulatory provisions impose on the ALJ a burden of making an explicit showing of diligence.
POMS may be “entitled to respect” under
Skidmore v. Swift
& Co.
,
purposes of determining whether claimant could work, where
regulation only required ALJ to
consider
using older age cate-
gory);
see also Moore v. Apfel
,
[1]
Nevertheless, even though POMS does not impose any
judicially enforceable duties on the SSA, “[t]he Code of Fed-
eral Regulations is clearly binding upon the Commissioner.”
Moore
, 216 F.3d at 869. The regulations applicable here do
not require the ALJ to make an explicit finding of diligent
pursuit or to explain or analyze any periods of delay in the
investigation.
See
[2]
In the absence of any explicit finding of diligence by
the ALJ, we examine the record ourselves to see if it supports
an implicit finding of diligence. The record does not support
a finding that “in light of the facts and circumstances of a par-
ticular case, the necessary action was undertaken and carried
out as promptly as the circumstances permitted.”
[3] Having reviewed the administrative record, we can deduce no reason for these delays. The ALJ’s decision pro- vides no explanation. Because the record does not support a conclusion that the investigation was carried out as promptly as circumstances permitted, the ALJ lacked authority under the regulations to revise the August 19, 2003 determination in a manner unfavorable to Carillo-Yeras. We reverse and remand with instructions to reinstate the August 19, 2003 determination. See Swensen v. Sullivan , 876 F.2d 683, 689 (9th Cir. 1989) (“We may direct the award of benefits where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed.”).
REVERSED and REMANDED.