Alan Brinker v. Carolyn W. Colvin

FILED
NOT FOR PUBLICATION
MAY 15 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN LEE BRINKER, No. 12-17565
Plaintiff - Appellant, D.C. No. 4:10-cv-03091-SBA
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
In 1993, Alan Brinker was awarded disability benefits under Title II of the
Social Security Act. He appeals pro se from the district court’s judgment affirming
the Commissioner of Social Security’s decision that Brinker’s disability ended in
January 2001. We review de novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th
*
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).
Cir. 2012). We have considered the parties’ contentions, including Brinker’s
arguments in his opening and reply brief. We affirm the district court.
The administrative law judge (“ALJ”) did not err in finding that Brinker
completed a “trial work period” when he performed services for a total of nine
non-consecutive months in a sixty-month period between 1996 and December
2000. See 20 C.F.R. §§ 404.1592(e)(2) (defining the beginning and end of a “trial
work period”), 404.1594(d)(5) & (f)(1) (performance of substantial gainful activity
following the completion of a trial work period establishes that the individual is no
longer disabled); Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th Cir. 2007)
(discussing regulations that provide for a trial work period in which a claimant may
work and still be considered disabled). Brinker’s contention that he did not work
in March 1996 is unpersuasive because the regulations define “services” by
reference to the timing of earnings, rather than the timing of work performance.
See 20 C.F.R. § 404.1592(b)(1)(i) & Table 1. Additionally, the ALJ reasonably
concluded that Brinker worked in November and December 2000, and thereafter
performed substantial gainful activity following the completion of the trial work
period. See Molina, 674 F.3d at 1110 (describing the first step of the sequential
evaluation for disability as whether the claimant is “doing substantial gainful
activity”).
2
The ALJ did not err in failing to continue Brinker’s hearing because, despite
the ALJ’s repeated offers, Brinker did not request a postponement to obtain
counsel. Additionally, Brinker has not shown that the ALJ failed to fully and fairly
develop the record when the ALJ questioned Brinker about his employment and
diligently explored the evidence regarding the trial work period. See Key v.
Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
The district court did not abuse its discretion in denying Brinker’s motion
for appointment of counsel because there are no provisions for supplying counsel
at government expense in social security cases. The district court also did not err
in declining to remove certain information from its summary judgment order
because the order accurately described the administrative record, and Brinker has
not shown compelling reasons why the information should be sealed. See Oliner v.
Kontrabecki, 745 F.3d 1024, 1025 (9th Cir. 2014) (“In keeping with the strong
public policy favoring access to court records, most judicial records may be sealed
only if the court finds ‘compelling reasons.’”). Finally, a subsequent award in
2012 of disability insurance benefits is not probative as to whether Brinker’s
earlier disability ended in 2001.
AFFIRMED.
3