                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 22 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LIONEL L. EMBLER,                                No. 10-36099

              Petitioner - Appellant,            D.C. No. 2:09-cv-00208-CI

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Cynthia Imbrogno, Magistrate Judge, Presiding

                          Submitted November 15, 2011 **
                                 Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

       Lionel L. Embler appeals from the district court’s judgment that affirmed the

final decision by the Commissioner of Social Security denying his application for


        *
             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).
Supplemental Security Income (SSI). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review de novo the district court’s judgment upholding the denial of

benefits, Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009),

and we affirm the district court.

       The ALJ properly concluded that Mr. Embler’s own income exceeded the

SSI eligibility threshold based on the commingling of resources between Mr.

Embler and his ex-wife, Ms. Audrey Embler. Mr. Embler’s March 2006

application for SSI indicated that Mr. and Ms. Embler co-owned at least one joint

bank account at the time of Mr. Embler’s application. According to 20 C.F.R §

416.1208(c)(1), joint ownership of an account by a claimant and non-claimant

creates a presumption that all funds in the joint account belong to the claimant.

Mr. Embler, the claimant, failed to rebut that presumption as provided for under 20

C.F.R. § 416.1208(c)(4). Therefore, all funds in the joint account were considered

to be Mr. Embler’s. Similarly, the counted value of the benefits (food, clothing,

and shelter) Mr. Embler received from cohabitating with Ms. Embler was his

income. 20 C.F.R. § 416.1130. Together, the in-kind benefits from cohabitation,

the income in the joint account, and the Social Security benefits Mr. Embler was

already receiving exceeded the SSI income eligibility threshold.




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      The ALJ’s calculations involved income and resources the Social Security

regulations ascribe to Mr. Embler. This determination of income was supported by

substantial evidence in Mr. Embler’s March 2006 application, Mr. Embler’s failure

to submit requested documents to rebut the presumption that he owned all funds in

the joint bank account, and testimony by Mr. and Ms. Embler regarding their living

situation. The deeming regulations delineated in 20 C.F.R. §§ 416.1160-1169 did

not factor into the ALJ’s calculations or decision to deny benefits. No income of

Ms. Embler’s was deemed to Mr. Embler in accordance with those provisions.

Therefore, the ALJ did not err when he did not consider the source of Ms.

Embler’s income or her status under the deeming regulations.

      AFFIRMED.




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