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Cheryle Mcglothin v. Michael J. Astrue

November 14, 2012


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits and disabled widow's insurance ("DWI") benefits.*fn1 The parties have filed a Joint Stipulation setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed an application for SSI and DIW benefits on November 18, 2009, alleging that she had been disabled since January 1, 2004 due to foot problems, pain, and difficulty standing as a result of a broken left foot. [JS 2; Administrative Record ("AR") 33-34, 105]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") found that plaintiff had a severe impairment consisting of a healed left foot fracture with residual pain. [AR 14]. The ALJ concluded that plaintiff retained the residual functional capacity to perform light work, provided she could alternate sitting and standing briefly every hour. [AR 14]. Based on the testimony of a vocational expert, the ALJ found that plaintiff's RFC did not preclude her from performing her past relevant work as a caterer or as a companion. [AR 17]. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the date of her decision. [AR 17].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).


Past relevant work

Plaintiff contends that the ALJ erred in finding that plaintiff's past jobs as a caterer and as a companion qualify as past relevant work. [JS 4-10].

"Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1). Substantial gainful activity is work activity that: (1) is done, or usually done, for pay or profit, whether or not a profit is realized; and (2) involves doing significant physical or mental activities, taking into account the nature of the work, how well it is performed, whether it is performed under special conditions, self-employment, and time spent working. See 20 C.F.R. §§ 404.1572-404.1573, 416.972-416.973.

Earnings are the "primary consideration" in evaluating whether work activity is substantial and gainful. 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1). Average monthly earnings above a prescribed threshold "ordinarily" will show that a claimant has engaged in substantial gainful activity, while earnings below a prescribed floor "ordinarily" will show that a claimant has not engaged in substantial gainful activity 20 C.F.R. §§ 404.1574(b), 416.974(b); see Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (explaining that earnings are "a presumptive, but not conclusive, sign of whether a job is substantial gainful activity"). Earnings from employment or self-employment count toward average monthly earnings; however, special rules apply to determining "countable" earnings from self-employment and to evaluating whether self-employment is substantial gainful activity. See 20 C.F.R. §§ 404.1575, 416.975.

Plaintiff's social security earnings record shows earnings in only three years during the 15-year period from 1995 through 2010: annual earnings of $529 from self-employment in 2000, annual earnings of $2,260 from employment as an in-home support service provider in 2003, and annual earnings of $2,311 from self-employment.*fn2 [AR 76, 82-87].

Plaintiff's written disability reports and hearing testimony suggested that she had earnings that were not reflected in her social security earnings record. In August 2008, plaintiff reported working as a "caretaker" from 1990 to 1993 and in 2000, 2003, and 2006. She said that those jobs involved working 25 hours a week (five hours, five days a week) for seven dollars an hour. [AR 106].

During the May 2010 administrative hearing, plaintiff appeared without a representative and testified on her own behalf. She testified that she worked as an in-home support service provider "sporadically" for "six or seven years" between 1990 and 2003. [AR 32]. Plaintiff said that she worked about 16 hours a week (roughly four hours a day, four days a week) and could not recall her hourly rate. [AR 32-33]. Plaintiff also testified that she had operated a catering business out of her home some "six or seven years" before the hearing, before her alleged onset of disability in January 2004. [AR 30-31]. Plaintiff testified that she catered weddings, birthday parties, and other parties. She said that she "prepared everything" and did the supervising and coordinating, but hired help to carry things. [AR 31]. Her largest job had been catering her son's wedding for a thousand people, and her smallest job had been a party for about a hundred people. [AR 30-31]. Plaintiff testified that she made "[c]lose to two thousand ...

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