                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 26 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



CAROL GESCHKE,                                   No. 08-35840

              Plaintiff - Appellant,             D.C. No. 2:08-cv-00323-MAT

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Mary A. Theiler, Magistrate Judge, Presiding

                            Submitted August 6, 2010**
                               Seattle, Washington




        *
             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).
Before: CANBY, NOONAN and BERZON, Circuit Judges.

      Appellant Carol Geschµe began receiving disability benefits in December

1994. On April 13, 2003, the Social Security Administration ('SSA') determined

she had engaged in substantial gainful activity ('SGA') from 1995 to 2001. As a

result, the SSA notified Geschµe that, after imputing a 'trial worµ period' and an

'extended period of eligibility,' her benefits would be terminated retroactively as

of December 1998.

      After the SSA denied Geschµe's request for reconsideration, an

administrative law judge ('ALJ') held two hearings and ultimately agreed with the

SSA's determination. The Appeals Council of the SSA denied Geschµe's request

for review, maµing the ALJ's decision final and subject to judicial review. See 20

C.F.R. yy 404.981, 422.210. The district court affirmed the ALJ's decision, and

Geschµe timely appealed.

      We have jurisdiction to review the district court's final judgment under 28

U.S.C. y 1291. We review the district court's judgment de novo and the ALJ's

underlying decision for substantial evidence. Sam v. Astrue, 550 F.3d 808, 809

(9th Cir. 2008).

      Geschµe contends that the decision to terminate her benefits as of December

1998 was time-barred. See 20 C.F.R. y 404.988 (providing that a 'determination'


                                          2
or 'decision' of the SSA may be reopened within one year for any reason or within

four years for good cause). In so arguing, Geschµe relies on what appear to be

internal SSA printouts related to 'Continuing Disability Reviews' as well as

annual notices from the SSA automatically increasing her benefits due to her

earnings during the prior year. These documents, however, do not reflect any prior

'determination' or 'decision' by the SSA that Geschµe was eligible for disability

benefits during the relevant time period. See id. y 404.902. The earliest such

determination was the SSA's 'initial determination' on April 13, 2003.

      Geschµe alternatively argues that the SSA cannot terminate disability

benefits retroactively, noting that certain regulations and statutory provisions

governing disability determinations are phrased in the present tense. While verb-

tense is an important consideration for interpreting a statute or regulation, it must

be viewed in light of the overall structure and purpose of the statutory or regulatory

scheme. See Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219, 224-25 (9th

Cir. 1992). Other regulations and statutory provisions belie Geschµe's

interpretation barring retroactive determinations. See, e.g., 42 U.S.C. y 404; 20

C.F.R. yy 404.504, 404.509, 404.1594(g).

      Geschµe further contends that the SSA cannot deem her ineligible for

disability benefits without first maµing a finding of medical improvement.


                                           3
Medical improvement, however, is irrelevant where SGA is at issue. Katz v. Sec'y

of Health & Human Servs., 972 F.2d 290, 293 (9th Cir. 1992).

      Geschµe also raises several arguments pertaining to her hearing before the

ALJ. She contends that the SSA lost or destroyed documents and that the ALJ

improperly allocated the evidentiary burden, admitted hearsay evidence into the

record, failed to subpoena a necessary witness, and made an implied adverse

credibility finding without stating specific reasons. As to her spoliation argument,

Geschµe has not established an adequate basis for drawing an adverse inference

against the SSA. See Aµiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991).

The ALJ, moreover, properly allocated the burden of proof in light of the

presumption of ineligibility created by Geschµe's earnings. See Byington v.

Chater, 76 F.3d 246, 251 (9th Cir. 1996). And, while some evidence admitted into

the record was hearsay, the ALJ did not rely on this evidence to render his

decision. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

(providing that 'the court will not reverse an ALJ's decision' for an error that is

'inconsequential to the ultimate nondisability determination' (internal quotation

marµs omitted)). In addition, because the ALJ reasonably concluded that the

SSA's counsel was not a necessary witness to decide the claim before him, he did

not abuse his discretion by declining to compel her testimony. See 20 C.F.R. y


                                           4
404.950(d)(1), (2). The record also does not reflect any adverse credibility finding

against Geschµe, and thus no statement of reasons to support such a finding was

required.

      Finally, Geschµe raises several arguments pertaining to the SSA's efforts to

recoup the benefits she received, her entitlement to waiver of recoupment, and the

onset date of the expedited reinstatement of her benefits. These contentions,

however, must first be properly presented to the SSA and subjected to the

prescribed sequence of review. See 20 C.F.R. yy 404.900, 404.902; see also, e.g.,

Woodford v. Ngo, 548 U.S. 81, 90 (2006) ('[P]roper exhaustion of administrative

remedies . . . means using all steps that the agency holds out, and doing so properly

(so that the agency addresses the issues on the merits).' (internal quotation marµs

omitted)).

      AFFIRMED.




                                          5
                                                                           FILED
Geschµe v. Astrue, No. 08-35840                                             AUG 26 2010
Berzon, Circuit Judge, concurring:                                     MOLLY C. DWYER, CLERK
                                                                         U.S . CO UR T OF AP PE A LS

      I fully concur in the disposition. I wish to note, however, that the long delay

in determining that Geschµe was engaged in substantial gainful activity, combined

with the circumstance that her earnings were being reported to the Social Security

Administration (SSA) and were recognized by the SSA in notices increasing her

benefits, may well render recoupment inappropriate under the standards articulated

in 42 U.S.C. y 404(b), providing for waiver of recoupment where the recipient is

'without fault' and 'recovery...would be against equity and good conscience.'
