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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 10 CATHLEEN SUE NARDICO, ) ) ) ) ) ) ) ) ) ) ) ) 11 Plaintiff, 12 v. 13 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 Case No. ED CV 17-1499-AS MEMORANDUM OPINION 17 PROCEEDINGS 18 19 On July 27, 2017, Plaintiff filed a Complaint seeking review of 20 the denial of her application for Supplemental Security Income 21 (“SSI”). (Dkt. No. 1). The parties have consented to proceed before 22 the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 16). 23 On December 26, 2017, Defendant filed an Answer along with the 24 Administrative Record (“AR”). (Dkt. Nos. 19, 20). On March 26, 25 2018, the parties filed a Joint Stipulation (“Joint Stip.”), setting 26 forth their respective positions regarding Plaintiff’s claims. 27 No. 23). 28 1 (Dkt. The Court has taken this matter under submission without oral 1 2 argument. See C.D. Cal. L.R. 7-15. 3 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 4 5 6 On May 22, 2013, Plaintiff, formerly employed as a mail delivery 7 driver, (see AR 150), filed an SSI application alleging an inability 8 to work because of a disability since June 30, 2006. 9 On August 6, 2015, an Administrative Law Judge, James D. Goodman 10 (“ALJ”), held a hearing at which Plaintiff’s counsel was present, but 11 Plaintiff was not, despite having received notice of the hearing from 12 the Administration and her counsel. 13 123 (notices of hearing)). 14 to 15 Plaintiff’s period of disability began on May 22, 2013, the date of 16 her application. 17 reopen the hearing, (AR 201-03). 18 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). 19 On 20 October 14, 2015, the ALJ issued decision denying 21 Plaintiff’s application. 22 Plaintiff had 23 hearing. (AR 25-28). 24 the five-step sequential process and denied Plaintiff’s claim. At 25 step 26 substantial 27 date. 28 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 2 1 degenerative disc disease and obesity. 2 three, the ALJ found that Plaintiff’s impairments do not meet or 3 equal a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 4 (AR 32). 5 the 6 performing her past relevant work as a mail delivery driver. 7 40). 8 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). 9 The Appeals Council denied Plaintiff request for review of 10 11 the ALJ’s decision on May 24, 2017 (AR 1-3, 20, 130). 12 seeks judicial review of the ALJ’s decision, which stands as the 13 final decision of the Commissioner. Plaintiff now 42 U.S.C. §§ 405(g), 1383(c). 14 15 STANDARD OF REVIEW 16 17 18 19 20 21 22 23 24 25 26 27 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 28 3 1 court] may not substitute [its] judgment for that of the 2 ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 3 PLAINTIFF’S CONTENTION 4 5 6 Plaintiff alleges that the ALJ erred in finding, at step four, 7 that Plaintiff’s past work as a mail delivery driver constituted 8 substantial gainful activity (“SGA”). (See Joint Stip. at 9-12, 18). 9 DISCUSSION 10 11 12 After considering the record as a whole, the Court finds that 13 the Commissioner’s findings are supported by substantial evidence and 14 are free from material legal error. 15 not err in determining that Plaintiff’s past work as a mail delivery 16 driver qualified as SGA. As set forth below, the ALJ did 17 18 At step four of the five-step process, the ALJ must determine 19 whether a claimant can return to his or her past relevant work in 20 light of his or her RFC. 21 claimant has] done within the past 15 years, which was substantial 22 gainful activity, and that lasted long enough for [the claimant] to 23 learn 24 Substantial 25 involves doing significant physical or mental activities . . . that 26 [a 27 416.972. 28 activity is made if that person’s average monthly income attributable to do claimant it.” gainful does] 20 Past relevant work is “work that [a C.F.R. activity for pay §§ is or 404.1560(b)(1), defined profit.” as 20 “work C.F.R. 416.960(b)(1). activity §§ that 404.1572, A presumption that a person engaged in substantial gainful 4 1 to that activity exceeds a certain amount. 2 416.974; Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990). 3 However, earnings alone are not dispositive and other factors may 4 rebut the presumption, such as “the time spent working, quality of a 5 [claimant’s] 6 possibility of self-employment.” 7 (9th Cir. 1992). performance, special 20 C.F.R. §§ 404.1574, working conditions, and the Katz v. Sec’y, 972 F.2d 290, 293 8 The Agency calculates monthly earnings by “averag[ing] earnings 9 10 over the entire 11 416.974a(a); see also Anderson v. Heckler, 726 F.2d 455, 457 (8th 12 Cir. 1984) (monthly earnings are calculated by averaging earnings 13 over months actually worked instead of averaging earnings over the 14 entire 15 significantly changes during the period of work, the Agency will 16 average earnings during each period of work separately. 17 §§ 404.1574a(b)-(c), 416.974a(b)-(c). year). period If a of work.” claimant’s 20 earnings C.F.R. level §§ 404.1574a(a), or work pattern 20 C.F.R. 18 Here, the ALJ concluded, at step four, that Plaintiff could 19 20 perform her past relevant work as a mail delivery driver. 21 The 22 acknowledging that “some of the evidence on this issue is a bit 23 thin.” 24 support of Plaintiff’s SSI application, in which Plaintiff indicated 25 that she worked as a mail delivery driver from January to June 2006 – 26 a six-month period, (id.; see AR 150), and stated that she worked for 27 eight hours a day, five days a week, earning fourteen dollars an 28 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, 5 1 along with other inconsistencies in the record,1 the ALJ inferred 2 that 3 delivery driver from January to June 2004, and not 2006. 4 Plaintiff’s earnings records indicate that she earned $5,266.72 from 5 Federal Express in 2004, (AR 144), which amounts to about $877 per 6 month if averaged over the six-month period from January to June as 7 plaintiff had alleged. 8 the level generally considered to be [SGA] within the meaning of the 9 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 10 Administration Activity, 11 ($810 per month qualified as 12 SGA in 2004)). 13 indicating that she worked full-time and earned fourteen dollars an 14 hour, (see AR 150), the ALJ reasoned that the mail delivery driver 15 job “yield[ed] [SGA]-level earnings, whether they were reported to 16 the proper authorities or not” (AR 41) – the implication being that 17 Plaintiff may have underreported her total earnings, in light of the 18 inconsistent records. Furthermore, based on Plaintiff’s disability report 19 Plaintiff contends that the ALJ “misinterpreted the record, and 20 21 Plaintiff’s work in 2004 did not constitute SGA.” (Joint Stip. at 22 10). 23 that the 2006 employment stated on the disability report actually 24 occurred in 2004, she contends that the ALJ wrongly inferred that she While Plaintiff acknowledges that the ALJ correctly determined 25 26 27 28 1 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). 6 1 worked for six months that year – that is, from January to June. 2 (Id.). 3 months, from January to August. 4 pointing to records showing that she injured herself on the job at 5 Federal Express on August 26, 2004. 6 222)). 7 averaged over an eight-month period, would amount to about $658 per 8 month, which is less than $810, the SGA-qualifying monthly earnings 9 minimum for 2004. 10 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, 11 12 Plaintiff also disputes the ALJ’s finding that Plaintiff’s mail 13 delivery driver work yielded SGA-level earnings “whether they were 14 reported to the proper authorities or not.” 15 41). 16 it relied on the disability report’s statement that Plaintiff worked 17 full-time at fourteen dollars an hour. 18 based on Plaintiff’s self-reporting almost ten years after she had 19 stopped working, Plaintiff argues that it is “much less reliable than 20 the detailed earnings query, which shows $5,266.72 of earnings in 21 2004, $174.40 of earnings in 2005, and most notably, no earnings in 22 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))). 23 24 Plaintiff’s arguments fail to establish error. Although the 25 record contains ambiguities and inconsistencies on this issue, the 26 ALJ properly used his discretion in interpreting the information and 27 concluding that Plaintiff’s past employment as a mail delivery driver 28 qualified as SGA. Substantial evidence supports the ALJ’s finding 7 1 that Plaintiff earned more than $810 a month working as a Federal 2 Express mail delivery driver in 2004. 3 based 4 evidence, that Plaintiff worked for six months and earned over $5,200 5 total, 6 alternatively, 7 [SGA]-level earnings, 8 authorities or 9 “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 10 unreasonable to rely partly on the information in the disability 11 report, even if Plaintiff provided this information almost ten years 12 after 13 Plaintiff would mistakenly recall having worked eight hours a day, 14 five days a week, (see AR 150), if she actually had worked only 15 enough to earn just “an average of $658.25 per month,” as Plaintiff 16 now contends.2 her employment. To the contrary, it seems unlikely that (Joint Stip. at 11). 17 18 19 20 21 22 23 24 25 26 27 28 2 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, 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 8 1 Plaintiff’s contentions, at most, confirm that the evidence in 2 the record was susceptible to different rational interpretations. 3 However, because the ALJ’s findings are reasonable and supported by 4 substantial evidence, they must be upheld. 5 278 F.3d 947, 954 (9th Cir. 2002). See Thomas v. Barnhart, 6 ORDER 7 8 9 10 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14 DATED: April 12, 2018 15 16 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 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. 9

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