Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Antonino Russo appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services (Secretary) following the Secretary's denial of Russo's application for disability insurance benefits under 42 U.S.C. § 423. Russo contends that the district court erred by finding that substantial evidence supported the Secretary's decision that Russo was engaging in substantial gainful activity during the period of alleged disability and therefore was not entitled to disability insurance benefits.¹  We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the district court's judgment de novo. Bates v. Sullivan, 894 F.2d 1059, 1061 (9th Cir. 1990). We will set aside the Secretary's denial of disability benefits "only if the Secretary's findings are not supported by substantial evidence in the record as a whole or if the Secretary applied improper legal standards." Young v. Heckler, 803 F.2d 963, 966 (9th Cir. 1986).

An applicant who is engaged in substantial gainful activity is not disabled for purposes of receiving disability insurance benefits. 20 C.F.R. Sec. 404.1571; Keyes, 894 F.2d at 1056. A determination that an applicant is engaged in substantial gainful activity involves consideration of the amount of compensation and the substantiality and gainfulness of the activity itself. 20 C.F.R. Sec. 404.1532(b); Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990). Earnings over $300.00 per month, the amount specified in the guidelines, create a rebuttable presumption that the applicant is engaged in substantial gainful activity. 20 C.F.R. Secs. 404.1574(b) (2), 404.1575(b) (2); Keyes, 894 F.2d at 1056. This presumption may be rebutted with evidence that the applicant cannot be self-employed or perform the job well, without special assistance, or for only short periods of time. Keyes, 894 F.2d at 1056.

Here, it is undisputed that Russo earns more than $300.00 per month as rental income from his properties. Russo testified that he collects rents from his properties, maintains separate accounts for business and personal income from the properties, pays the mortgage, taxes, insurance and maintenance expenses, visits the properties to speak with the tenants and to inspect for maintenance and repair needs for which he hires outside help, pursues unlawful detainer actions through his attorney, advertises for tenants, and runs credit checks on prospective tenants. Although Russo subsequently asserted that he did not perform some of the activities to which he testified at the hearing, the Secretary could find his hearing testimony more credible. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Thus, the district court did not err by upholding the Secretary's decision that Russo presented insufficient evidence to rebut the presumption that he is engaged in substantial gainful activity.

Viewing the record as a whole, the Secretary's determination that Russo is engaged in substantial gainful activity and thus not disabled, is supported by substantial evidence and the district court did not err by granting the Secretary's cross-motion for summary judgment. See Keyes, 894 F.2d at 1056.

AFFIRMED.