Rendy Parker v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RENDY PARKER, No. 10-56664
Plaintiff - Appellant, D.C. No. 2:09-cv-07008-AN
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Arthur Nakazato, Magistrate Judge, Presiding
Argued and Submitted March 8, 2012
Pasadena, California
Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.
Rendy Parker appeals the denial of her application for social security
disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act. Because we are unable to determine the basis for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Appeals Council’s decision or adequately evaluate its conclusions, we reverse
and remand. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Parker argues that the Appeals Council erred in concluding that her past
work was as a bill collection clerk. In so concluding, the Appeals Council rejected
the finding of the ALJ, which was based on the testimony of a vocational expert,
that Parker’s past work was as a car repossessor. At the February 11, 2009,
hearing, the vocational expert initially testified that Parker’s past work was best
classified as “bill collection clerk” but then, after hearing Parker’s testimony,
concluded that “car repossessor” more accurately captured her last job. Parker’s
testimony at the hearing was that she left the office to arrange for the repossession
of cars consistently “throughout a work week.” This testimony formed the basis
for the vocational expert’s conclusion and, in turn, for the ALJ’s disability
determination.
If this testimony were accepted and credited, then it does indeed appear that
the Appeals Council’s conclusion would have to be reversed, as Parker’s
description of her job duties and the “bill collection clerk” job assigned by the
Appeals Council just do not match. But in fact, the Appeals Council never
mentioned this significant, probative evidence in its decision. See Vincent ex rel.
Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).
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We cannot tell the reason for this vacuum. It is possible that the Appeals
Council meant to reject Parker’s testimony at the 2009 hearing regarding her
former job as inconsistent with her testimony on the same subject at the hearings
on the earlier application. Even so, “we must reverse because no explicit finding
as to [Parker’s] credibility was made” regarding this critical issue, and remand for
further explanation. Albalos v. Sullivan, 907 F.2d 871, 873 (9th Cir. 1990); see
also Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986).
The Appeals Council also indicated that the ALJ had committed an error of
law by reopening the decision regarding Parker’s past work that was made in
response to her previous applications. Because Parker alleged “changed
circumstances indicating a greater disability,” specifically, that she had reached
“advanced age,” res judicata did not bar reconsideration of her disability
application. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (internal
quotation marks omitted); Social Security Acquiescence Ruling (AR) 97-4(9).
Neither the ALJ nor the Appeals Council discussed, however, whether “new and
material evidence” existed sufficient to defeat claim preclusion as applied to the
previous ALJ’s specific finding regarding Parker’s past work. See Chavez, 844
F.2d at 694; AR 97-4(9). It is possible that the Appeals Council did not mention
Parker’s 2009 testimony as to her job duties because it believed that her testimony
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was not “new and material,” as it concerned a nonchanging matter already decided.
But, again, we cannot affirm on a ground never articulated. Bray v. Comm’r of
Soc. Sec. Admin., 554 F.3d 1219, 1225–26 (9th Cir. 2009).
Thus, although it is possible that the Appeals Council’s decision left out
Parker’s 2009 testimony on one of the two grounds indicated, we cannot evaluate
any such unarticulated reasons at this stage. Instead, we remand to the district
court, with instructions to remand to the Secretary for further explanation of its
holding.
REVERSED and REMANDED.
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