FILED
NOT FOR PUBLICATION AUG 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
CAROL GESCHKE, No. 08-35840
Plaintiff - Appellant, D.C. No. 2:08-cv-00323-MAT
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary A. Theiler, Magistrate Judge, Presiding
Submitted August 6, 2010**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: CANBY, NOONAN and BERZON, Circuit Judges.
Appellant Carol Geschµe began receiving disability benefits in December
1994. On April 13, 2003, the Social Security Administration ('SSA') determined
she had engaged in substantial gainful activity ('SGA') from 1995 to 2001. As a
result, the SSA notified Geschµe that, after imputing a 'trial worµ period' and an
'extended period of eligibility,' her benefits would be terminated retroactively as
of December 1998.
After the SSA denied Geschµe's request for reconsideration, an
administrative law judge ('ALJ') held two hearings and ultimately agreed with the
SSA's determination. The Appeals Council of the SSA denied Geschµe's request
for review, maµing the ALJ's decision final and subject to judicial review. See 20
C.F.R. yy 404.981, 422.210. The district court affirmed the ALJ's decision, and
Geschµe timely appealed.
We have jurisdiction to review the district court's final judgment under 28
U.S.C. y 1291. We review the district court's judgment de novo and the ALJ's
underlying decision for substantial evidence. Sam v. Astrue, 550 F.3d 808, 809
(9th Cir. 2008).
Geschµe contends that the decision to terminate her benefits as of December
1998 was time-barred. See 20 C.F.R. y 404.988 (providing that a 'determination'
2
or 'decision' of the SSA may be reopened within one year for any reason or within
four years for good cause). In so arguing, Geschµe relies on what appear to be
internal SSA printouts related to 'Continuing Disability Reviews' as well as
annual notices from the SSA automatically increasing her benefits due to her
earnings during the prior year. These documents, however, do not reflect any prior
'determination' or 'decision' by the SSA that Geschµe was eligible for disability
benefits during the relevant time period. See id. y 404.902. The earliest such
determination was the SSA's 'initial determination' on April 13, 2003.
Geschµe alternatively argues that the SSA cannot terminate disability
benefits retroactively, noting that certain regulations and statutory provisions
governing disability determinations are phrased in the present tense. While verb-
tense is an important consideration for interpreting a statute or regulation, it must
be viewed in light of the overall structure and purpose of the statutory or regulatory
scheme. See Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219, 224-25 (9th
Cir. 1992). Other regulations and statutory provisions belie Geschµe's
interpretation barring retroactive determinations. See, e.g., 42 U.S.C. y 404; 20
C.F.R. yy 404.504, 404.509, 404.1594(g).
Geschµe further contends that the SSA cannot deem her ineligible for
disability benefits without first maµing a finding of medical improvement.
3
Medical improvement, however, is irrelevant where SGA is at issue. Katz v. Sec'y
of Health & Human Servs., 972 F.2d 290, 293 (9th Cir. 1992).
Geschµe also raises several arguments pertaining to her hearing before the
ALJ. She contends that the SSA lost or destroyed documents and that the ALJ
improperly allocated the evidentiary burden, admitted hearsay evidence into the
record, failed to subpoena a necessary witness, and made an implied adverse
credibility finding without stating specific reasons. As to her spoliation argument,
Geschµe has not established an adequate basis for drawing an adverse inference
against the SSA. See Aµiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991).
The ALJ, moreover, properly allocated the burden of proof in light of the
presumption of ineligibility created by Geschµe's earnings. See Byington v.
Chater, 76 F.3d 246, 251 (9th Cir. 1996). And, while some evidence admitted into
the record was hearsay, the ALJ did not rely on this evidence to render his
decision. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(providing that 'the court will not reverse an ALJ's decision' for an error that is
'inconsequential to the ultimate nondisability determination' (internal quotation
marµs omitted)). In addition, because the ALJ reasonably concluded that the
SSA's counsel was not a necessary witness to decide the claim before him, he did
not abuse his discretion by declining to compel her testimony. See 20 C.F.R. y
4
404.950(d)(1), (2). The record also does not reflect any adverse credibility finding
against Geschµe, and thus no statement of reasons to support such a finding was
required.
Finally, Geschµe raises several arguments pertaining to the SSA's efforts to
recoup the benefits she received, her entitlement to waiver of recoupment, and the
onset date of the expedited reinstatement of her benefits. These contentions,
however, must first be properly presented to the SSA and subjected to the
prescribed sequence of review. See 20 C.F.R. yy 404.900, 404.902; see also, e.g.,
Woodford v. Ngo, 548 U.S. 81, 90 (2006) ('[P]roper exhaustion of administrative
remedies . . . means using all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).' (internal quotation marµs
omitted)).
AFFIRMED.
5
FILED
Geschµe v. Astrue, No. 08-35840 AUG 26 2010
Berzon, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
I fully concur in the disposition. I wish to note, however, that the long delay
in determining that Geschµe was engaged in substantial gainful activity, combined
with the circumstance that her earnings were being reported to the Social Security
Administration (SSA) and were recognized by the SSA in notices increasing her
benefits, may well render recoupment inappropriate under the standards articulated
in 42 U.S.C. y 404(b), providing for waiver of recoupment where the recipient is
'without fault' and 'recovery...would be against equity and good conscience.'