                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             NOV 18 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DENISE THOMAS,                                   No. 08-16609

              Plaintiff - Appellant,             D.C. No. 3:07-cv-04186-EMC

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Edward M. Chen, Magistrate Judge, Presiding

                           Submitted November 6, 2009**
                             San Francisco, California

Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, *** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
      Denise Thomas (“Thomas”) appeals the district court’s summary judgment

affirming the Commissioner of Social Security’s denial of her claim of disability

insurance benefits under Title II of the Social Security Act. The district court

upheld the finding of the Administrative Law Judge (“ALJ”) that Thomas was not

eligible for benefits because she had engaged in substantial gainful activity during

the alleged period of disability. We affirm.

      This court reviews a district court’s order upholding the Commissioner’s

denial of benefits de novo. Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d

968, 973 (9th Cir. 2000). We will set aside a denial of benefits only if “it is not

supported by substantial evidence or if it is based on legal error.” Flaten v. Sec’y

of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995) (citing Gonzalez v.

Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).

      There is a five-step analysis for determining whether a claimant is eligible

for disability benefits. See Corrao v. Shalala, 20 F.3d 943, 946 (9th Cir. 1994); 20

C.F.R. § 404.1520. A claimant will be disqualified at step one if he or she is

engaged in “substantial gainful activity.” See Corrao, 20 F.3d at 946; 20 C.F.R. §

404.1571. Substantial gainful activity is work activity that is both “substantial,”

involving “significant physical or mental activities,” and “gainful,” done “for pay

or profit.” 20 C.F.R. § 404.1572. If a claimant’s earnings surpass an amount


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specified by the Social Security regulations, there is a presumption of substantial

gainful activity, but that presumption may be rebutted by the claimant. Keyes v.

Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990).

      The ALJ held that Thomas had engaged in “substantial gainful activity”

within the meaning of 20 C.F.R. § 404.1571, and was therefore not disabled. In

support of this conclusion, the ALJ found that Thomas’ earnings between 2002 and

2004 created a presumption of substantial gainful activity. The ALJ also found that

Thomas’ responsibilities as a caregiver for her three grandchildren constituted

substantial work activity.

      Thomas challenges the ALJ’s finding on several grounds. First, Thomas

argues that there was not substantial evidence to support a finding of substantial

gainful activity. However, the record shows that Thomas’ earnings surpassed the

monthly maximum set by Social Security regulations. Based on this evidence, the

ALJ properly found that Thomas’ earnings created a presumption of substantial

gainful activity. See 20 C.F.R. 404.1574(b); Keyes, 894 F.2d at 1056. In addition,

Thomas’ own testimony established that during her work hours Thomas was the

responsible adult in the household, and was expected to respond to any emergency

situation that arose. Reviewing the record as a whole, this evidence is sufficient to

support the ALJ’s finding that Thomas had engaged in substantial gainful activity.


                                           3
      Next, Thomas argues that the ALJ erred in finding that the presumption

applied because the ALJ did not reduce her earnings by the “subsidy” that she was

paid, as required under 20 CFR § 404.1574(a)(2). Thomas claims that because her

tasks were minimal and she was asleep for the majority of her work hours, she was

paid more than the true value of her work and therefore her countable earnings

should have been reduced. According to Thomas, if her earnings had been properly

reduced, the presumption would not have applied.

      Evidence in the record establishes that Thomas was not paid a subsidy. Even

while she was asleep, Thomas was expected to be on call, and would have attended

to any emergency that arose during the night. In this way, by her mere presence

Thomas provided value that justified the money earned over the whole night.

Thomas also does not provide evidence that she was paid less than her true value.

She points only to evidence that she performed lesser tasks than a standard “child

monitor,” but identifies no evidence that she performed lesser tasks than an

unimpaired person would have performed in the same position, which is the relevant

comparison for determining whether a subsidy has been received. See 20 C.F.R. §

404.1574(a)(2). The evidence cited by Thomas does not show that she was paid

more than the true value of her work, and therefore the ALJ did not err in failing to

find that she was paid a subsidy.


                                          4
      Finally, Thomas asserts that even if the ALJ properly applied the presumption

of substantial gainful activity, the ALJ still erred in failing to find that she had

rebutted the presumption. We have previously held that a presumption of substantial

gainful activity can be rebutted by such factors as “time spent working, quality of a

person's performance, special working conditions, and the possibility of

self-employment.” Katz v. Sec’y of Health & Human Servs., 972 F.2d 290, 293 (9th

Cir. 1992). Thomas asserts several bases for her rebuttal.

      Thomas argues that during her work hours her only duty was to be present and

available, and this low level of performance rebuts the presumption of substantial

gainful activity. While it is true that her work responsibilities were limited, there is

countervailing evidence in the record establishing that her work was substantial.

Thomas testified that she began this work to cover her daughter’s nighttime work

schedule, and the record shows that the sole requirement of the

position—supervision at night—was entirely satisfied by Thomas. Thomas also

testified that she was responsible for addressing any emergency that might arise.

Based on this evidence, the ALJ concluded that Thomas’ work responsibilities were

substantial. Under the substantial evidence standard, “[w]here the evidence is

susceptible to more than one rational interpretation, it is the ALJ's conclusion that

must be upheld.” Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 599 (9th Cir. 1999).


                                             5
Accordingly, the ALJ’s interpretation of the work performance evidence supports a

finding that she did not rebut the presumption of substantial gainful activity.

      Thomas also argues that the ALJ did not properly credit the vocational

expert’s testimony; however, the vocational expert’s testimony is not conclusive on

whether Thomas’ activities were substantial. The vocational expert testified that

typically a child monitor is not paid for hours when the child monitor is asleep, but

also testified that a babysitter on a night shift could be allowed to sleep until there is

an emergency. Because the vocational expert’s testimony was equivocal, at this first

step in the analysis the ALJ was free to resolve any conflicts in evidence against

Thomas.

      Lastly, Thomas argues that she rebutted the presumption of substantial gainful

activity by showing that her work was subject to special conditions, as described in

20 C.F.R. § 404.1573. Thomas’ argument misconstrues the regulation. Section

404.1573(c) describes “special conditions” as those that “take into account your

impairment, such as work done in a sheltered workshop or as a patient in a hospital.”

20 C.F.R. § 404.1573(c) (emphasis added). The special conditions identified by

Thomas are simply the conditions of the position—Thomas’ daughter only needed

someone to take supervise her children between the hours of 10:00 p.m. and 7:30

a.m., while she was at work. Thus, there is substantial evidence to conclude that


                                            6
Thomas was not working under special conditions, and Thomas therefore failed to

rebut the presumption of substantial gainful activity.

      AFFIRMED.




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