Cathleen Sue Nardico v. Nancy A. Berryhill

Filing 24

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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CATHLEEN SUE NARDICO,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,
Defendant.

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Case No. ED CV 17-1499-AS
MEMORANDUM OPINION

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PROCEEDINGS
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On July 27, 2017, Plaintiff filed a Complaint seeking review of
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the

denial

of

her

application

for

Supplemental

Security

Income

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(“SSI”).

(Dkt. No. 1).

The parties have consented to proceed before

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the undersigned United States Magistrate Judge.

(Dkt. Nos. 11, 16).

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On

December

26,

2017,

Defendant

filed

an

Answer

along

with

the

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Administrative Record (“AR”).

(Dkt. Nos. 19, 20).

On March 26,

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2018, the parties filed a Joint Stipulation (“Joint Stip.”), setting
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forth their respective positions regarding Plaintiff’s claims.
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No. 23).
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(Dkt.

The Court has taken this matter under submission without oral

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argument.

See C.D. Cal. L.R. 7-15.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On May 22, 2013, Plaintiff, formerly employed as a mail delivery

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driver, (see AR 150), filed an SSI application alleging an inability

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to work because of a disability since June 30, 2006.

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On August 6, 2015, an Administrative Law Judge, James D. Goodman

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(“ALJ”), held a hearing at which Plaintiff’s counsel was present, but

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Plaintiff was not, despite having received notice of the hearing from

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the Administration and her counsel.

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123 (notices of hearing)).

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to

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Plaintiff’s period of disability began on May 22, 2013, the date of

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her application.

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reopen the hearing, (AR 201-03).

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the motion.

reopen

the

(AR 131-47).

(AR 47-51; see also AR 100-05,

The ALJ gave Plaintiff seven days to move

proceedings.

(AR 50).

(AR

On

50).

The

ALJ

also

found

that

August 6, 2015, Plaintiff moved to
On August 28, 2015, the ALJ denied

(AR 127).

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On

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October

14,

2015,

the

ALJ

issued

decision

denying

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Plaintiff’s application.

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Plaintiff

had

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hearing.

(AR 25-28).

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the five-step sequential process and denied Plaintiff’s claim. At

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step

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substantial

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date.

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several “medically determinable conditions of ill-being,” including

one,

the

(AR 24-42).

a

constructively

ALJ

gainful

(AR 31).

waived

First, the ALJ found that
her

right

to

appear

at

the

The ALJ then proceeded through step four of

determined
activity

that
since

Plaintiff
May

22,

has

not

engaged

in

2013,

the

application

At step two, the ALJ found that Plaintiff has

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degenerative disc disease and obesity.

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three, the ALJ found that Plaintiff’s impairments do not meet or

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equal a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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(AR 32).

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the

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performing her past relevant work as a mail delivery driver.

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40).

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disabled since May 22, 2013, the application date.

ALJ

(Id.).

Proceeding to step

After assessing Plaintiff’s Residual Functional Capacity,
determined,

at

step

four,

that

Plaintiff

is

capable

of

(AR 34-

Accordingly, the ALJ concluded that Plaintiff has not been
(AR 41).

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The Appeals Council denied Plaintiff request for review of

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the ALJ’s decision on May 24, 2017 (AR 1-3, 20, 130).

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seeks judicial review of the ALJ’s decision, which stands as the

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final decision of the Commissioner.

Plaintiff now

42 U.S.C. §§ 405(g), 1383(c).

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STANDARD OF REVIEW

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This Court reviews the Administration’s decision to determine if
it is free of legal error and supported by substantial evidence.
Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).
evidence”

is

preponderance.
2014).

more

than

a

mere

scintilla,

but

See

“Substantial
less

than

a

Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

To determine whether substantial evidence supports a finding,

“a court must consider the record as a whole, weighing both evidence
that supports and evidence that detracts from the [Commissioner’s]
conclusion.”

Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

2001) (internal quotation omitted).

As a result, “[i]f the evidence

can support either affirming or reversing the ALJ’s conclusion, [a

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court]

may

not

substitute

[its]

judgment

for

that

of

the

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ALJ.”

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

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PLAINTIFF’S CONTENTION

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Plaintiff alleges that the ALJ erred in finding, at step four,

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that Plaintiff’s past work as a mail delivery driver constituted

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substantial gainful activity (“SGA”).

(See Joint Stip. at 9-12, 18).

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DISCUSSION

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After considering the record as a whole, the Court finds that

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the Commissioner’s findings are supported by substantial evidence and

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are free from material legal error.

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not err in determining that Plaintiff’s past work as a mail delivery

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driver qualified as SGA.

As set forth below, the ALJ did

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At step four of the five-step process, the ALJ must determine

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whether a claimant can return to his or her past relevant work in

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light of his or her RFC.

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claimant has] done within the past 15 years, which was substantial

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gainful activity, and that lasted long enough for [the claimant] to

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learn

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Substantial

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involves doing significant physical or mental activities . . . that

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[a

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416.972.

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activity is made if that person’s average monthly income attributable

to

do

claimant

it.”
gainful

does]

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Past relevant work is “work that [a

C.F.R.

activity

for

pay

§§

is

or

404.1560(b)(1),

defined

profit.”

as

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“work

C.F.R.

416.960(b)(1).
activity

§§

that

404.1572,

A presumption that a person engaged in substantial gainful

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to that activity exceeds a certain amount.

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416.974; Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990).

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However, earnings alone are not dispositive and other factors may

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rebut the presumption, such as “the time spent working, quality of a

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[claimant’s]

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possibility of self-employment.”

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(9th Cir. 1992).

performance,

special

20 C.F.R. §§ 404.1574,

working

conditions,

and

the

Katz v. Sec’y, 972 F.2d 290, 293

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The Agency calculates monthly earnings by “averag[ing] earnings

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over

the

entire

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416.974a(a); see also Anderson v. Heckler, 726 F.2d 455, 457 (8th

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Cir. 1984) (monthly earnings are calculated by averaging earnings

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over months actually worked instead of averaging earnings over the

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entire

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significantly changes during the period of work, the Agency will

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average earnings during each period of work separately.

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§§ 404.1574a(b)-(c), 416.974a(b)-(c).

year).

period

If

a

of

work.”

claimant’s

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earnings

C.F.R.

level

§§ 404.1574a(a),

or

work

pattern

20 C.F.R.

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Here, the ALJ concluded, at step four, that Plaintiff could

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perform her past relevant work as a mail delivery driver.

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The

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acknowledging that “some of the evidence on this issue is a bit

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thin.”

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support of Plaintiff’s SSI application, in which Plaintiff indicated

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that she worked as a mail delivery driver from January to June 2006 –

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a six-month period, (id.; see AR 150), and stated that she worked for

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eight hours a day, five days a week, earning fourteen dollars an

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hour.

ALJ

found

(Id.).

(AR 150).

that

this

job

qualified

as

SGA,

(AR 40).

even

while

The ALJ relied on a disability report filed in

Based on the lack of reported earnings for 2006,
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along with other inconsistencies in the record,1 the ALJ inferred

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that

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delivery driver from January to June 2004, and not 2006.

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Plaintiff’s earnings records indicate that she earned $5,266.72 from

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Federal Express in 2004, (AR 144), which amounts to about $877 per

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month if averaged over the six-month period from January to June as

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plaintiff had alleged.

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the level generally considered to be [SGA] within the meaning of the

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regulations

Plaintiff

in

intended

that

to

state

that

she

had

worked

as

a

mail

(AR 40).

The ALJ noted that this amount “does rise to

year.”

(“SSA”),

(AR

40-41;

Substantial

see

Social

Gainful

Security

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Administration

Activity,

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https://www.ssa.gov/oact/cola/sga.html ($810 per month qualified as

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SGA in 2004)).

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indicating that she worked full-time and earned fourteen dollars an

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hour, (see AR 150), the ALJ reasoned that the mail delivery driver

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job “yield[ed] [SGA]-level earnings, whether they were reported to

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the proper authorities or not” (AR 41) – the implication being that

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Plaintiff may have underreported her total earnings, in light of the

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inconsistent records.

Furthermore, based on Plaintiff’s disability report

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Plaintiff contends that the ALJ “misinterpreted the record, and

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Plaintiff’s work in 2004 did not constitute SGA.”

(Joint Stip. at

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10).

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that the 2006 employment stated on the disability report actually

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occurred in 2004, she contends that the ALJ wrongly inferred that she

While Plaintiff acknowledges that the ALJ correctly determined

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The ALJ noted that, according to some medical records,
Plaintiff apparently stated that she sustained an on-the-job injury
while working for Federal Express in 2006, whereas other documents
show that Plaintiff filed a claim against Federal Express for a 2004
injury. (AR 40 n.3; see AR 793-94, 949, 1050, 1062).
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worked for six months that year – that is, from January to June.

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(Id.).

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months, from January to August.

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pointing to records showing that she injured herself on the job at

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Federal Express on August 26, 2004.

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222)).

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averaged over an eight-month period, would amount to about $658 per

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month, which is less than $810, the SGA-qualifying monthly earnings

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minimum for 2004.

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Instead, Plaintiff asserts, her work in 2004 spanned eight
(Id.).

Plaintiff supports this by

(Id. at 11 (citing AR 208, 216,

Plaintiff points out that her 2004 earnings of $5,266.72, if

(Id. at 11; see SSA, Substantial Gainful Activity,

https://www.ssa.gov/oact/cola/sga.html).

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Plaintiff also disputes the ALJ’s finding that Plaintiff’s mail

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delivery driver work yielded SGA-level earnings “whether they were

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reported to the proper authorities or not.”

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41).

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it relied on the disability report’s statement that Plaintiff worked

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full-time at fourteen dollars an hour.

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based on Plaintiff’s self-reporting almost ten years after she had

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stopped working, Plaintiff argues that it is “much less reliable than

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the detailed earnings query, which shows $5,266.72 of earnings in

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2004, $174.40 of earnings in 2005, and most notably, no earnings in

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2006.”

(Joint Stip at 11-12; AR

Plaintiff contends that this finding was “speculative” because

Because this information was

(Joint Stip. at 11 (citing AR 144 (earnings report))).

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Plaintiff’s arguments fail to establish error.

Although the

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record contains ambiguities and inconsistencies on this issue, the

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ALJ properly used his discretion in interpreting the information and

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concluding that Plaintiff’s past employment as a mail delivery driver

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qualified as SGA.

Substantial evidence supports the ALJ’s finding
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that Plaintiff earned more than $810 a month working as a Federal

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Express mail delivery driver in 2004.

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based

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evidence, that Plaintiff worked for six months and earned over $5,200

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total,

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alternatively,

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[SGA]-level

earnings,

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authorities

or

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“speculative,”

on

the

or

disability

over

$866
that

a

report,

month.

given

whether
(AR
the

earnings

The

Plaintiff’s

not.”

the

mail

they

41).

record’s

The ALJ reasonably found,

ALJ

records,

also

delivery

and

reasonably
driving

were

reported

This

latter

to

found,

“yield[ed]
the

finding

inconsistencies,

other

nor

proper

was
was

not
it

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unreasonable to rely partly on the information in the disability

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report, even if Plaintiff provided this information almost ten years

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after

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Plaintiff would mistakenly recall having worked eight hours a day,

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five days a week, (see AR 150), if she actually had worked only

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enough to earn just “an average of $658.25 per month,” as Plaintiff

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now contends.2

her

employment.

To

the

contrary,

it

seems

unlikely

that

(Joint Stip. at 11).

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Even at minimum wage, which was $6.75 for California in 2004,
Plaintiff would have earned $658 a month working less than twentyfive hours a week. See Cal. Dep’t of Indus. Relations, Minimum Wage
History, https://www.dir.ca.gov/iwc/MinimumWageHistory.htm.
At the
hourly wage of $14 that Plaintiff provided on the disability report,
(AR 150), she would have earned $658 a month working less than twelve
hours a week.
Defendant points to other evidence in the record suggesting that
Plaintiff underreported her earnings. (See Joint Stip. at 16). For
example, as the ALJ noted, Plaintiff apparently worked part-time
doing clerical duties related to a friend’s architectural firm around
2008, (see AR 39, 267, 631-33), but she admitted that she did not
report those earnings for tax purposes, (AR 631-33 (2010 deposition);
see AR 144 (earnings records)).
Defendant also points to a 2007
deposition in which Plaintiff stated that before her Federal Express
employment, she worked as a Frito-Lay driver for nine months, (AR
563), though Plaintiff’s earnings records reflect just $715.54 from
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Plaintiff’s contentions, at most, confirm that the evidence in

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the record was susceptible to different rational interpretations.

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However, because the ALJ’s findings are reasonable and supported by

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substantial evidence, they must be upheld.

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278 F.3d 947, 954 (9th Cir. 2002).

See Thomas v. Barnhart,

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ORDER

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For the foregoing reasons, the decision of the Commissioner is
AFFIRMED.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: April 12, 2018
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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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Frito-Lay.
(AR 143).
The ALJ did not specifically address this
evidence as support for finding that the mail delivery driver job
qualified as SGA.
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