Esther Argueta v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTHER DIAZ ARGUETA, No. 16-16682
Plaintiff-Appellant, D.C. No. 1:15-cv-01110-SKO
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges
Esther Diaz Argueta appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of her applications for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and we affirm.
The administrative law judge did not err in finding that Argueta’s work as a
sedentary produce sorter, following an on-the-job injury, was past relevant work
for purposes of step four of the sequential analysis. See 20 C.F.R. § 404.1520(f);
Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (holding that at step four the
claimant bears the burden of proving that she cannot perform her past relevant
work). Argueta’s sedentary sorter work from February to May 2010 met the three
requirements for past relevant work. It was performed within 15 years of the
ALJ’s decision, which was filed on December 13, 2013. See 20 C.F.R.
§ 404.1560(b)(1). The job, which the vocational expert testified was unskilled
work, with a special vocational level (“SVP”) of 2, lasted long enough for Argueta
to learn how to do it. See Social Security Ruling 00-4p (stating that an unskilled
occupation, with an SVP of 1 or 2, can be learned within 30 days). In addition,
Argueta’s earnings record shows that she was paid more than the $1,000-per-
month threshold for substantial gainful activity for 2010 when averaged over the
five months that she worked. See 20 C.F.R. § 404.1574(b)(2) (explaining
calculation of threshold); Social Security Ruling 83-85 (explaining that earnings
from seasonal work are averaged over the actual period of work involved).
Argueta argues that her sedentary sorter work should be considered an
unsuccessful work attempt, rather than past relevant work. The district court
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correctly concluded that Argueta’s work was substantial gainful activity and was
not an unsuccessful work attempt because it did not end due to the claimant’s
impairments or because of the removal of a special condition that enabled her to
work. See 20 C.F.R. § 404.1574; Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d
690, 692 (9th Cir. 1999). When the ALJ asked, “So if the season had still been
going on and there were still mandarins to sort, you would have been able to
continue doing that with the chair?” Argueta replied, “Yes, Your Honor.”
Accordingly, substantial evidence supports the ALJ’s finding that the job ended
due to a layoff. See Molina, 674 F.3d at 1110. The district court also correctly
noted that an unsuccessful work attempt cannot logically take place prior to the
alleged onset of a claimant’s disability. Social Security Ruling states: “The UWA
[unsuccessful work attempt] concept was designed to provide us an equitable
means, in making SGA [substantial gainful activity] determinations, to disregard
relatively brief work attempts that do not demonstrate sustained SGA. We will not
consider work we determine to be an UWA as substantial gainful activity when we
determine if you are under a disability or when we determine if your disability has
ceased.” Argueta, however, did not claim that she was under a disability until after
she stopped working in May 2010.
AFFIRMED.
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