Nancy Coomer v. Michael Astrue

FILED
NOT FOR PUBLICATION AUG 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NANCY COOMER, as personal No. 09-15061
representative of the estate and on behalf
of Danny Coomer, deceased, D.C. No. 4:06-cv-00629-CKJ
Plaintiff - Appellant,
MEMORANDUM *
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted January 4, 2011 **
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Nancy Coomer appeals pro se the district court’s decision affirming the
Commissioner’s determination that her late ex-husband Danny Coomer
*
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).
(“Coomer”) was ineligible for disability insurance benefits under Title II of the
Social Security Act for the period from January 1994 through December 1995.
Although Coomer was determined to be disabled due to Crohn’s disease and
related secondary impairments as of September 3, 1985, an Administrative Law
Judge (ALJ) in 2006 found that Coomer’s entitlement to benefits ended on March
31, 1994, because he was at that time engaged in substantial gainful activity
(SGA). The district court had jurisdiction pursuant to 42 U.S.C. § 405(g), and we
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
Appellant first contends the ALJ erred in ruling that Coomer’s medical
condition was irrelevant to the determination whether he was engaged in SGA in
1994 and 1995. We disagree. Where a claimant has previously been found to be
disabled within the meaning of the Social Security Act, his eligibility for disability
benefits may cease, regardless of his medical condition, if he is found upon any
statutorily mandated review to have engaged in SGA. See 42 U.S.C. §§ 421(I),
423(f); 20 C.F.R. §§ 404.1594(d)(5), 404.1595(f)(1); Katz v. Sec’y of Health &
Human Servs., 972 F.2d 290, 293 (9th Cir.1992) (holding that it is not necessary to
show medical improvement where SGA is the issue in a disability benefits
termination case).
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Appellant further contends the ALJ erred in finding, based on conflicting
testimony from Coomer and other witnesses, that Coomer contributed over half the
time required for management of his feed business in 1994 and 1995, and that
those services amounted to SGA. We reject this argument.
In finding that Coomer contributed “more than half the total time required
for the management” of his feed business, and that he was thus engaged in SGA,
20 C.F.R. §§ 404.1575(a)(2) & (b)(1), the ALJ relied primarily on admissions
Coomer made during his testimony at an April 2000 hearing about the operation of
his business. The ALJ rejected later inconsistent testimony about the allocation of
responsibilities between Coomer and one of his employees, Christopher Stump,
and the report of a certified rehabilitation counselor, David Goguen, who relied on
Stump’s testimony and the United States Department of Labor’s Dictionary of
Occupational Titles, to opine that Coomer did not perform more than half of the
required management duties. While the Secretary may rely on that dictionary to
characterize a claimant’s “past relevant work” for purposes of a Step Four
“residual functional capacity” determination, Villa v. Heckler, 797 F.2d 794, 798-
99 (9th Cir. 1986), nothing in the regulations or case law requires him to do so
with respect to an SGA determination.
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In any event, the ALJ clearly considered Goguen’s testimony, but properly
rejected it because it was based on the later testimony of Stump, in 2005, who
contradicted Coomer’s earlier testimony, in 2000, about the allocation of
responsibilities between him and his employees. The ALJ also considered and
properly evaluated all of the evidence in the record. She applied the proper legal
standards, and her finding of SGA in 1994 and 1995 is supported by substantial
evidence.
AFFIRMED.
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