Opinion
For Richard Joe Lopez, Plaintiff: Steven G Rosales, LEAD ATTORNEY, Law Office of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Theophous Reagans, SAUSA - U.S. Attorney's Office, Social Security Administration, San Francisco, CA.
MEMORANDUM OPINION AND ORDER
SHERI PYM, UNITED STATES MAGISTRATE JUDGE.
I .
INTRODUCTION
On March 17, 2014, plaintiff Richard Joe Lopez filed a complaint against defendant, the Commissioner of the Social Security Administration (" Commissioner"), seeking review of a denial of Disability Insurance benefits (" DIB") and Supplemental Security Income benefits (" SSI"). Both parties have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Plaintiff presents the following claim for review: that the Administrative Law Judge (" ALJ") erred at step four in determining plaintiff can return to his past relevant work as a watch guard. Specifically, plaintiff argues that the ALJ's finding that plaintiff's prior work as a watch guard constituted substantial gainful activity, and therefore was past relevant work, is not supported by substantial evidence. Pl. Mem. at 3-6.
Having reviewed the record in its entirety, the court finds that the ALJ's determination that plaintiff's prior work as a watch guard constituted substantial gainful activity is supported by substantial evidence. Accordingly, the court affirms the Commissioner's decision denying benefits.
II .
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 2010, at forty-seven years of age, plaintiff filed SSI and DIB applications based on disability. Administrative Record (" AR") 153-63. At the time, plaintiff had work experience as a janitor at a convalescent hospital, as an industry machinist, and as a security guard. AR 57-61, 84-85, 167-69, 175, 192-94. Plaintiff completed the tenth grade. AR 62.
In plaintiff's DIB and SSI applications, he alleged a disability onset date of February 1, 2008. AR 153, 160. Plaintiff based his claims on " defects gunshot left side head [sic], blackouts, seizures, migraine headaches, head swells [sic], off balance, sharp pain right chest to right arms [sic], not able to raise arm much, right eye blurry vision, right side loss of feeling, inside back knot on spinal cord, arthritis both elbows hands and fingers [sic]." AR 174. The Commissioner denied plaintiff's applications initially and upon reconsideration, after which plaintiff requested a hearing. AR 96-108.
Plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ on July 26, 2012. AR 51-76, 84. Vocational expert (" VE") John Myers also testified at the hearing. AR 76-77, 83, 85-87. On September 21, 2012, the ALJ denied plaintiff's claim for benefits. AR 39-46.
Applying the well-known, five-step sequential test to determine whether plaintiff was disabled, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since February 1, 2008, plaintiff's alleged onset date. AR 41.
At step two, the ALJ found that plaintiff had the severe impairments of status post traumatic gunshot wound to the head causing partial paralysis of the right side with residual headaches and reduced vision in the right eye. AR 42.
At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. AR 43.
The ALJ then assessed plaintiff's residual functional capacity (" RFC"). She determined that plaintiff's RFC enabled him to perform medium work, except plaintiff could not lift or carry more than fifty pounds occasionally or twenty-five pounds frequently with his left hand, and no more than twenty pounds occasionally and ten pounds frequently with his right hand. AR 44. The ALJ also found that plaintiff could not sit, stand, or walk longer than six hours in an eight-hour work day. Id. Plaintiff was also precluded from frequent crawling, and from frequent reaching, handling, and fingering with his right hand. Id. Climbing, working at heights, driving a motor vehicle, and working around moving or dangerous machinery were also prohibited. Id.
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. See generally Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). " Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
At step four, the ALJ found that plaintiff was able to perform his past relevant work as a watch guard. AR 46. As a result, the ALJ determined that plaintiff had not been under a disability as defined in the Social Security Act since February 1, 2008. Id.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. AR 1-7, 32-34. The ALJ's decision stands as the final decision of the Commissioner.
III .
STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
" Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such " relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, " weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Id. The ALJ's decision " 'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court may not substitute its judgment for that of the ALJ. Id. (citation omitted).
IV .
DISCUSSION
Plaintiff argues that the ALJ erred in step four of the disability analysis when she found that plaintiff's employment as a security guard in 2007 constituted substantial gainful activity such that it could consequently be considered past relevant work. Pl. Mem. at 3-6. The court disagrees.
" At step four of the sequential analysis, the claimant has the burden to prove that he cannot perform his prior relevant work 'either as actually performed or as generally performed in the national economy.'" Carmickle v. Comm'r, 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). " Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citations omitted). A claimant's former occupation qualifies as past relevant work if it was performed within the last fifteen years, lasted long enough for him or her to learn to do it, and produced enough income to qualify as substantial gainful activity. 20 C.F.R. § 404.1560(b)(1); 20 C.F.R. § 416.960(b)(1).
" Substantial work activity is work activity that involves doing significant physical or mental activities. . . . [W]ork may be substantial even if it is done on a part-time basis or if [the claimant] do[es] less, get[s] paid less, or ha[s] less responsibility than when [he or she] worked before." 20 C.F.R. § 404.1572(a); 20 C.F.R. § 416.972(a). " Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b); 20 C.F.R. § 416.972(b). If the claimant has earned less than a certain minimum amount, then the ALJ will generally conclude that the activity was not substantial gainful activity. See 20 C.F.R. § 404.1574(b); 20 C.F.R. § 416.974(b). Earnings can be a presumptive, but not conclusive, sign of whether a job is substantial gainful activity. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). The relevant threshold amount in this case, for the year 2007, is $900.00 per month. See http://www.ssa.gov/OACT/COLA/sga.html .; Pl. Mem., Ex. 1.
Plaintiff worked as a security guard in 2007. AR 60-61. Thus, the first prong of the past relevant work test of work performed within the last fifteen years was met. See 20 C.F.R. § 404.1560(b)(1); 20 C.F.R. § 416.960(b)(1). Plaintiff also testified he worked as a guard anywhere from three to five months. See AR 60-61 (plaintiff agreed he worked " four to five months"); AR 84 (agreeing he worked " three to four months"). The watch guard occupation that the VE ultimately determined was equivalent to plaintiff's past work as a security guard indicates that the specific vocational preparation (" SVP") for the position is a three. See Dictionary of Occupational Titles (" DOT") 372.667-034 (guard, security). This means that the time it would have taken plaintiff to learn how to do the job would have been anywhere from one to three months. See DOT app. C, pt. II (explanation of SVP levels). Given that plaintiff testified he worked at the position anywhere from three to five months, the second prong of the past relevant work test -- that plaintiff's job lasted long enough for him to learn how to do it -- was also met. This leaves the third prong of the test: whether plaintiff's work constituted substantial gainful activity.
At the hearing, the VE clarified that the guard position should be considered " unskilled, light" instead of " semi-skilled" despite the SVP rating of three. See AR 85.
Plaintiff testified that in 2007 he worked the night shift as a security guard at a Saint Vincent de Paul homeless shelter, and that in the position he was tasked to look through people's possessions for contraband as they entered the facility. AR 60-61. He was paid for this work. See AR 169. Thus, the job involved substantial work activity and was gainful. See 20 C.F.R. § 404.1572(a)-(b) (defining substantial work activity and gainful work activity, respectively). But plaintiff argues his income as a security guard was not large enough to establish a presumption that he engaged in substantial gainful activity. Pl. Mem. 3-6, Ex. 1. Specifically, plaintiff asserts in the instant complaint that he worked for five months in the position and that his total income during that time averaged less than $900.00 a month, the amount the SSA determined was indicative of substantial gainful activity for 2007. See id.
The record establishes that in 2007 plaintiff earned $3657.00 as a security guard for Saint Vincent de Paul. AR 169. If plaintiff worked for five months as a guard, his average monthly income would have been $731.40, which is less than the presumptive $900.00 substantial gainful activity amount. But if plaintiff worked for four months in the position, his monthly income would have been $914.25, an amount above the presumptive substantial gainful activity threshold for 2007. This would enable the ALJ to presume, without more, that plaintiff's employment as a security guard constituted past relevant work within the step four analysis.
The Commissioner's assertion that plaintiff earned $4411.34 as a security guard in 2007 is incorrect. See Def. Am. Mem. at 4-5. In 2007, plaintiff earned $754.34 as a worker at CoorsTek, Inc. a ceramics manufacturing company, and $3657.00 as a security guard at Council of Saint Vincent de Paul. AR 169. Thus, plaintiff's total income for 2007 at two different jobs was $4411.34.
When questioned by the ALJ at his hearing about the amount of time he had worked at different positions in recent years, plaintiff's testimony unfolded as follows:
[ALJ]: You, it looks like, you [worked as a security guard] for four or five months, approximately?
[Plaintiff]: Yeah. Yeah. It was a --
[ALJ]: A night shift --
[Plaintiff]: Yeah. [ALJ]: -- kind of a thing?
[Plaintiff]: Yeah.
AR 61. When subsequently questioned by the VE, plaintiff testified as follows:
[VE]: So, you were a paid employee of St. Vincent de Paul?
[Plaintiff]: Yes.
[VE]: Okay. And you worked in that job for three to four months, full time?
[Plaintiff]: Yeah. Because, it was, it was, it was, it was like they go to some National Guard's facility for the homeless people. They just -- they start for -- in March. No. In November to March.
AR 84.
Thus, plaintiff testified he work as a security guard: for four to five months; for three to four months; and from November to March, which could mean anywhere from three to five months. As such, there is some confusion in the record. But taking this separate testimony together, there is substantial evidence plaintiff worked as a security guard for approximately four months.
It was plaintiff's initial burden at step four to establish that he could not do past relevant work. Carmickle, 533 F.3d at 1166. Accordingly, plaintiff had the responsibility to provide the ALJ with testimony or documentation that clearly indicated that the amount of time he had worked as a security guard caused his monthly income to fall short of the presumptive substantial gainful threshold for 2007, if that was the case. See SSR 82-62 (" The claimant is the primary source for vocational documentation . . . . Information concerning . . . dates work was performed . . . will permit a judgment as to the current relevance of the individual's work experience."). Instead, when twice given the opportunity to verify on the record the precise length of time he worked as a guard, plaintiff provided indefinite responses. See AR 60-61, 84. Moreover, plaintiff never alleged he had been unable to perform the job well, without special assistance, or for only brief periods of time. See generally Lewis, 236 F.3d at 515-16; 20 C.F.R. § 404.1573(b)-(e) (both listing several alternative factors used to determine whether substantial gainful activity has occurred).
The record as presented to the ALJ by plaintiff reasonably indicated that plaintiff's work as a security guard constituted substantial gainful activity. Because plaintiff failed to provide evidence to the contrary when given the opportunity to do so, the ALJ reasonably found the security guard work constituted substantial gainful activity based on the information plaintiff had provided. See Lewis, 236 F.3d at 515 (if there is no evidence claimant has not engaged in substantial gainful activity, ALJ may find claimant has engaged in such work). For these reasons, the ALJ's finding that plaintiff's prior work as a watch guard constituted substantial gainful activity is supported by substantial evidence.
V .
CONCLUSION
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice.
JUDGMENT
Pursuant to the Memorandum Opinion and Order filed contemporaneously with the filing of this Judgment, IT IS HEREBY ADJUDGED that the decision of the Commissioner of the Social Security Administration is AFFIRMED and this action is dismissed with prejudice.