                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 17 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


PETER J. SANCHEZ,                                No.   15-55481

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-01551-DOC-DTB
 v.

CAROLYN W. COLVIN, Acting                        MEMORANDUM*
Commissioner of Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                           Submitted January 12, 2017**
                              Pasadena, California

Before: KOZINSKI, McKEOWN, and WATFORD, Circuit Judges.

      The administrative law judge (ALJ) found that Peter Sanchez worked as a

nursery salesperson (separate from his work as a forklift driver at the same

nursery) and that Sanchez’s work at the nursery qualified as substantial gainful

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                            Page 2 of 4
activity. Because the record cannot support both findings simultaneously, we must

vacate and remand for further proceedings.

      If the ALJ correctly found that Sanchez’s work as a salesperson was separate

from his forklift-driving job, the record does not support the ALJ’s further finding

that the salesperson work alone constituted substantial gainful activity. Sanchez’s

earnings record shows that he earned a total of $7,388.26 from the nursery in 2000.

At the administrative hearing, Sanchez testified that he worked at the nursery for

“about six months” that year. That means his compensation from the nursery

exceeded the rate of $700 per month, the presumptive floor for substantial gainful

activity in 2000, if the entirety of his work at the nursery is taken into account. See

20 C.F.R. § 416.974(b)(2)(i) & Table 1. However, the record does not indicate

how much of this compensation was attributable to Sanchez’s job as a salesperson

as opposed to his job as a forklift driver, because the duration of time he spent in

each job is unknown. Without that information, we cannot determine whether

Sanchez earned enough as a salesperson for this work to qualify as substantial

gainful activity.

      If, on the other hand, the ALJ correctly found that Sanchez’s work at the

nursery constituted substantial gainful activity, then all of Sanchez’s compensation

in 2000 would have to be attributable to one job at the nursery, not two. If Sanchez
                                                                           Page 3 of 4
had only one job at the nursery in 2000, the record does not support the ALJ’s

classification of that job as a salesperson, which is generally performed at a light

level of exertion. See DICOT 272.357-022. Sanchez had more demanding duties

at the nursery, including driving a forklift, which is generally performed at a

medium level of exertion. See DICOT 921.683-050. The ALJ may not classify a

job according to its least demanding function unless, among other things, the

claimant actually performed the least demanding function most of the time. Stacy

v. Colvin, 825 F.3d 563, 569–70 (9th Cir. 2016). The record does not indicate

whether Sanchez’s nursery work primarily involved sales duties or driving a

forklift. Thus, if Sanchez had only one job at the nursery, the ALJ had no basis in

the record to find that it was the salesperson job.

      We cannot resolve this case on the ALJ’s alternative finding that Sanchez

has past relevant work experience as a security guard. The record includes

Sanchez’s earnings from various jobs as a security guard, but it does not indicate

how long he held any of those positions. That information is necessary to

determine whether any of those positions qualify as substantial gainful activity.

      We vacate the district court’s judgment and remand with instructions to

remand the case to the agency to reassess the disability determination at step four

of the sequential evaluation and, if necessary, step five.
                                         Page 4 of 4
Each party shall bear their own costs.

VACATED and REMANDED.
