Julie A. Loewen v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIE A. LOEWEN,

Plaintiff-Appellant,

v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant-Appellee.

No. 19-35226

D.C. No. 3:18-cv-05419-DWC

MEMORANDUM
*

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.
FILED

JUN 17 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
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).

3
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.

4
presumption was harmless, and Loewen did not rebut that presumption, her other
arguments do not overcome the ALJ’s finding of non-disability.
AFFIRMED.