                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ESTHER DIAZ ARGUETA,                            No.    16-16682

                Plaintiff-Appellant,            D.C. No. 1:15-cv-01110-SKO

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                        for the Eastern District of California
                   Sheila K. Oberto, Magistrate Judge, Presiding

                          Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges

      Esther Diaz Argueta appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of her applications for disability

insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de


      *
             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).
novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and we affirm.

      The administrative law judge did not err in finding that Argueta’s work as a

sedentary produce sorter, following an on-the-job injury, was past relevant work

for purposes of step four of the sequential analysis. See 20 C.F.R. § 404.1520(f);

Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (holding that at step four the

claimant bears the burden of proving that she cannot perform her past relevant

work). Argueta’s sedentary sorter work from February to May 2010 met the three

requirements for past relevant work. It was performed within 15 years of the

ALJ’s decision, which was filed on December 13, 2013. See 20 C.F.R.

§ 404.1560(b)(1). The job, which the vocational expert testified was unskilled

work, with a special vocational level (“SVP”) of 2, lasted long enough for Argueta

to learn how to do it. See Social Security Ruling 00-4p (stating that an unskilled

occupation, with an SVP of 1 or 2, can be learned within 30 days). In addition,

Argueta’s earnings record shows that she was paid more than the $1,000-per-

month threshold for substantial gainful activity for 2010 when averaged over the

five months that she worked. See 20 C.F.R. § 404.1574(b)(2) (explaining

calculation of threshold); Social Security Ruling 83-85 (explaining that earnings

from seasonal work are averaged over the actual period of work involved).

      Argueta argues that her sedentary sorter work should be considered an

unsuccessful work attempt, rather than past relevant work. The district court


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correctly concluded that Argueta’s work was substantial gainful activity and was

not an unsuccessful work attempt because it did not end due to the claimant’s

impairments or because of the removal of a special condition that enabled her to

work. See 20 C.F.R. § 404.1574; Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d

690, 692 (9th Cir. 1999). When the ALJ asked, “So if the season had still been

going on and there were still mandarins to sort, you would have been able to

continue doing that with the chair?” Argueta replied, “Yes, Your Honor.”

Accordingly, substantial evidence supports the ALJ’s finding that the job ended

due to a layoff. See Molina, 674 F.3d at 1110. The district court also correctly

noted that an unsuccessful work attempt cannot logically take place prior to the

alleged onset of a claimant’s disability. Social Security Ruling states: “The UWA

[unsuccessful work attempt] concept was designed to provide us an equitable

means, in making SGA [substantial gainful activity] determinations, to disregard

relatively brief work attempts that do not demonstrate sustained SGA. We will not

consider work we determine to be an UWA as substantial gainful activity when we

determine if you are under a disability or when we determine if your disability has

ceased.” Argueta, however, did not claim that she was under a disability until after

she stopped working in May 2010.

      AFFIRMED.




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