Denise Thomas v. Michael Astrue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DENISE THOMAS, No. 08-16609
Plaintiff - Appellant, D.C. No. 3:07-cv-04186-EMC
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, Magistrate Judge, Presiding
Submitted November 6, 2009**
San Francisco, California
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
Denise Thomas (“Thomas”) appeals the district court’s summary judgment
affirming the Commissioner of Social Security’s denial of her claim of disability
insurance benefits under Title II of the Social Security Act. The district court
upheld the finding of the Administrative Law Judge (“ALJ”) that Thomas was not
eligible for benefits because she had engaged in substantial gainful activity during
the alleged period of disability. We affirm.
This court reviews a district court’s order upholding the Commissioner’s
denial of benefits de novo. Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d
968, 973 (9th Cir. 2000). We will set aside a denial of benefits only if “it is not
supported by substantial evidence or if it is based on legal error.” Flaten v. Sec’y
of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
There is a five-step analysis for determining whether a claimant is eligible
for disability benefits. See Corrao v. Shalala, 20 F.3d 943, 946 (9th Cir. 1994); 20
C.F.R. § 404.1520. A claimant will be disqualified at step one if he or she is
engaged in “substantial gainful activity.” See Corrao, 20 F.3d at 946; 20 C.F.R. §
404.1571. Substantial gainful activity is work activity that is both “substantial,”
involving “significant physical or mental activities,” and “gainful,” done “for pay
or profit.” 20 C.F.R. § 404.1572. If a claimant’s earnings surpass an amount
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specified by the Social Security regulations, there is a presumption of substantial
gainful activity, but that presumption may be rebutted by the claimant. Keyes v.
Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990).
The ALJ held that Thomas had engaged in “substantial gainful activity”
within the meaning of 20 C.F.R. § 404.1571, and was therefore not disabled. In
support of this conclusion, the ALJ found that Thomas’ earnings between 2002 and
2004 created a presumption of substantial gainful activity. The ALJ also found that
Thomas’ responsibilities as a caregiver for her three grandchildren constituted
substantial work activity.
Thomas challenges the ALJ’s finding on several grounds. First, Thomas
argues that there was not substantial evidence to support a finding of substantial
gainful activity. However, the record shows that Thomas’ earnings surpassed the
monthly maximum set by Social Security regulations. Based on this evidence, the
ALJ properly found that Thomas’ earnings created a presumption of substantial
gainful activity. See 20 C.F.R. 404.1574(b); Keyes, 894 F.2d at 1056. In addition,
Thomas’ own testimony established that during her work hours Thomas was the
responsible adult in the household, and was expected to respond to any emergency
situation that arose. Reviewing the record as a whole, this evidence is sufficient to
support the ALJ’s finding that Thomas had engaged in substantial gainful activity.
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Next, Thomas argues that the ALJ erred in finding that the presumption
applied because the ALJ did not reduce her earnings by the “subsidy” that she was
paid, as required under 20 CFR § 404.1574(a)(2). Thomas claims that because her
tasks were minimal and she was asleep for the majority of her work hours, she was
paid more than the true value of her work and therefore her countable earnings
should have been reduced. According to Thomas, if her earnings had been properly
reduced, the presumption would not have applied.
Evidence in the record establishes that Thomas was not paid a subsidy. Even
while she was asleep, Thomas was expected to be on call, and would have attended
to any emergency that arose during the night. In this way, by her mere presence
Thomas provided value that justified the money earned over the whole night.
Thomas also does not provide evidence that she was paid less than her true value.
She points only to evidence that she performed lesser tasks than a standard “child
monitor,” but identifies no evidence that she performed lesser tasks than an
unimpaired person would have performed in the same position, which is the relevant
comparison for determining whether a subsidy has been received. See 20 C.F.R. §
404.1574(a)(2). The evidence cited by Thomas does not show that she was paid
more than the true value of her work, and therefore the ALJ did not err in failing to
find that she was paid a subsidy.
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Finally, Thomas asserts that even if the ALJ properly applied the presumption
of substantial gainful activity, the ALJ still erred in failing to find that she had
rebutted the presumption. We have previously held that a presumption of substantial
gainful activity can be rebutted by such factors as “time spent working, quality of a
person's performance, special working conditions, and the possibility of
self-employment.” Katz v. Sec’y of Health & Human Servs., 972 F.2d 290, 293 (9th
Cir. 1992). Thomas asserts several bases for her rebuttal.
Thomas argues that during her work hours her only duty was to be present and
available, and this low level of performance rebuts the presumption of substantial
gainful activity. While it is true that her work responsibilities were limited, there is
countervailing evidence in the record establishing that her work was substantial.
Thomas testified that she began this work to cover her daughter’s nighttime work
schedule, and the record shows that the sole requirement of the
position—supervision at night—was entirely satisfied by Thomas. Thomas also
testified that she was responsible for addressing any emergency that might arise.
Based on this evidence, the ALJ concluded that Thomas’ work responsibilities were
substantial. Under the substantial evidence standard, “[w]here the evidence is
susceptible to more than one rational interpretation, it is the ALJ's conclusion that
must be upheld.” Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 599 (9th Cir. 1999).
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Accordingly, the ALJ’s interpretation of the work performance evidence supports a
finding that she did not rebut the presumption of substantial gainful activity.
Thomas also argues that the ALJ did not properly credit the vocational
expert’s testimony; however, the vocational expert’s testimony is not conclusive on
whether Thomas’ activities were substantial. The vocational expert testified that
typically a child monitor is not paid for hours when the child monitor is asleep, but
also testified that a babysitter on a night shift could be allowed to sleep until there is
an emergency. Because the vocational expert’s testimony was equivocal, at this first
step in the analysis the ALJ was free to resolve any conflicts in evidence against
Thomas.
Lastly, Thomas argues that she rebutted the presumption of substantial gainful
activity by showing that her work was subject to special conditions, as described in
20 C.F.R. § 404.1573. Thomas’ argument misconstrues the regulation. Section
404.1573(c) describes “special conditions” as those that “take into account your
impairment, such as work done in a sheltered workshop or as a patient in a hospital.”
20 C.F.R. § 404.1573(c) (emphasis added). The special conditions identified by
Thomas are simply the conditions of the position—Thomas’ daughter only needed
someone to take supervise her children between the hours of 10:00 p.m. and 7:30
a.m., while she was at work. Thus, there is substantial evidence to conclude that
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Thomas was not working under special conditions, and Thomas therefore failed to
rebut the presumption of substantial gainful activity.
AFFIRMED.
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