Collins v. Social Security Administration, Commissioner

Filing 24

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 11/9/17. (SAC )

FILED
2017 Nov-09 AM 11:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAHALA COLLINS,

)
)
Plaintiff,
)
)
v.
) Case No.: 4:16-CV-1149-VEH
)
NANCY A. BERRYHILL, ACTING )
COMMISSIONER, SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)

MEMORANDUM OPINION
I.

INTRODUCTION
Before the Court is the Social Security Administration Commissioner’s

(“Commissioner”) Motion To Alter or Amend Memorandum Opinion and Order (the
“Motion”) pursuant to Rule 59(e). (Doc. 15). Both parties have filed their respective
briefs, and this Motion is ripe for the Court’s review.
On July 13, 2016, Plaintiff Jahala Collins (“Collins”) filed her appeal seeking
a review of a final adverse decision of the Commissioner of the Social Security
Administration. On July 25, 2017, this Court issued its Memorandum Opinion
(“Opinion”) regarding Ms. Collins’s appeal. (Doc. 13). In that Opinion, the Court
found “that the ALJ committed reversible error in his disability analysis by using Ms.

Collins’s gross income to determine that her consignment owner job was [substantial
gainful activity].” (Id. at 9). The Court then reversed the Commissioner’s decision.
(Doc. 14 at 1).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a

period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.1 The Regulations define “disabled” as
“the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
2

sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.

3

II.

STANDARD
A.

RULE 59

Federal Rule of Civil Procedure Rule 59(e) concerns motions to alter or amend
judgments. FED. R. CIV. P. 59(e). The standard governing Rule 59(e) motions is
straightforward:
[The Eleventh Circuit] review[s] the denial of a Rule 59 motion for
abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir.
2006). “The only grounds for granting [a Rule 59] motion are
newly-discovered evidence or manifest errors of law or fact.” In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). “[A] Rule 59(e) motion
[cannot be used] to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judgment.”
Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005).
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).
B.

Standards for Reviewing a Commissioner’s Decision

The Court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this Court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This Court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
4

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This Court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
Court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the Court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
III.

FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following

findings:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2017.

2.

Although the claimant alleged an onset date of September 30,
2012, the undersigned finds that the claimant engaged in
5

substantial gainful activity from January 1, 2011[,] to at least
December 31, 2012, and likely thereafter (20 CFR 404.1571 et
seq.).
3.

There has possibly been a continuous 12-month period during
which the claimant did not engage in substantial gainful activity.
The remaining findings address that period.

4.

The claimant has the following severe impairments: mild chronic
kidney disease; obesity; neuropathy, NOS; status post possible
Lyme disease infection; osteoarthritis/Lyme arthritis;
degenerative disc disease of the lumbar spine; and chronic
sinusitis (20 CFR 404.1520(c)).

5.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

6.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except she
can frequently climb ramps and stairs but never climb ladders or
scaffolds. This person can frequently balance but can only
occasionally stoop, crouch, kneel and crawl. This individual
should never be exposed to unprotected heights, dangerous
machinery, dangerous tools or hazardous processes[,] and should
be exposed to no more than moderate noise levels. In addition to
normal workday breaks, this person would be off-task up to five
percent of an eight-hour workday, in non-consecutive minutes.

7.

The claimant is capable of performing past relevant work as a
consignment store operator. This work does not require the
performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).

8.

The claimant has not been under a disability, as defined in the
6

Social Security Act, from September 30, 2012, through the date
of this decision (20 CFR 404.1520(f)).
(Tr. 13-26).
III.

ANALYSIS
A.

The Commissioner Meets the Rule 59(e) Standard

The Commissioner argues that the “Court applied an incorrect legal standard
when reviewing the Administrative Law Judge’s decision concerning Plaintiff’s
former work.” (Doc. 15 at 1). In essence, the Commissioner argues that the Court
erroneously looked solely at test one, and not tests two and three, when determining
whether Collins’s “work activity of a self-employed person is [substantial gainful
activity].” (See id. at 3) (citing 20 C.F.R. § 1575). The Commissioner argues that the
“ALJ’s application of tests two and three to determine whether [Collins’s]
consignment store work was [substantial gainful activity] was legally correct and is
supported by substantial evidence.” (Id. at 4).2 Upon further review, this Court
determines that its Memorandum Opinion and Order from July 25, 2017, were in error
and are due to be vacated.
The Code of Federal Regulations states the following regarding self-employed
people:

2

The Commissioner also notes that the grounds for which the Court reversed the ALJ’s
decision was not one which the parties actually briefed. (See Doc. 15 at 3).
7

(2) General rules for evaluating your work activity if you are selfemployed. We will consider your activities and their value to your
business to decide whether you have engaged in substantial gainful
activity if you are self-employed. We will not consider your income
alone because the amount of income you actually receive may depend
on a number of different factors, such as capital investment and
profit-sharing agreements. We will generally consider work that you
were forced to stop or reduce to below substantial gainful activity
after 6 months or less because of your impairment as an unsuccessful
work attempt. See paragraph (d) of this section. We will evaluate your
work activity based on the value of your services to the business
regardless of whether you receive an immediate income for your
services. We determine whether you have engaged in substantial
gainful activity by applying three tests. If you have not engaged in
substantial gainful activity under test one, then we will consider tests
two and three. The tests are as follows:
(i) Test [O]ne: You have engaged in substantial gainful activity if you
render services that are significant to the operation of the business
and receive a substantial income from the business. Paragraphs (b)
and (c) of this section explain what we mean by significant services
and substantial income for purposes of this test.
(ii) Test Two: You have engaged in substantial gainful activity if your
work activity, in terms of factors such as hours, skills, energy output,
efficiency, duties, and responsibilities, is comparable to that of
unimpaired individuals in your community who are in the same or
similar businesses as their means of livelihood.
(iii) Test Three: You have engaged in substantial gainful activity if
your work activity, although not comparable to that of unimpaired
individuals, is clearly worth the amount shown in § 404.1574(b)(2)
when considered in terms of its value to the business, or when
compared to the salary that an owner would pay to an employee to do
the work you are doing.

8

20 C.F.R. § 404.1575 (emphasis added).3
The Court’s opinion narrowly focused on the ALJ’s discussion of Collins’s
income. (Doc. 13 at 9). While the Court was correct to note the general rule that the
gross income is not the final figure to be used in determining substantial gainful
activity,4 the Court neglected to credit the ALJ for his discussion of tests two and
three. The regulation indicates that the claimant just has to meet one test, not multiple.
20 C.F.R. § 404.1575 (“If you have not engaged in substantial gainful activity under
test one, then we will consider tests two and three.”); see Palmer v. Barnhart, 40 F.
App’x 278, 282 (7th Cir. 2002) (“A self-employed individual . . . is considered to
have engaged in substantial gainful activity if she satisfies any one of three tests”).
Further, the ALJ did not rest his decision on test one and Collins’s gross income. (Tr.
16) (resting his analysis, not on test one, but on tests two and three); (Tr. 16) (“[T]he
claimant’s low/non-existent wages and low number of hours are not dispositive of
this issue.”); (Tr. 16) (“Unfortunately, her business was not profitable, but that is not
material to the analysis.”).

3

Collins notes that “the ALJ was required to employ three methods for testing whether
the self-employed plaintiff was engaged in substantial gainful employment.” (Doc. 21 at 5)
(citing 20 C.F.R. § 404.1575(a)).
4

See 20 C.F.R. § 404.1575(c)(1); (see also Doc. 21 at 6).
9

Further, Collins made no argument in her opening brief that the ALJ erred at
step 1; in fact, it was quite the opposite. (Doc. 8 at 12). Collins stated the following
in her original brief: “The ALJ duly analyzed the [Collins’s] past part-time work
under step 1 to determine that she engaged in SGA until December 31, 2012. (Tr. 1316).” (Id. at 12). This provides further support for the conclusion that the Court erred
in reversing the Commissioner at step one.
In conclusion, the Court erred by focusing solely on test one, and not tests two
and three. This was a manifest error, and as such, the Court’s Memorandum Opinion
(Doc. 13) and Order (Doc. 14) are due to be VACATED.
B.

The ALJ’s Decision Is Supported by Substantial Evidence.

Because the Court vacates its prior memorandum opinion and order, it now
reevaluates the previous briefing using the correct legal standard. The issue presented
is whether “substantial evidence support[s] the Commissioner’s finding that [Collins]
was not disabled because she could return to work as a consignment store owner.”
(Doc. 7 at 1).
It is important to remember that, while other steps are discussed (both in this
opinion and by the ALJ), this is fundamentally a step four case.5 This means that

5

This is a step four case because the ALJ determined that “[Collins] is capable of
performing past relevant work as a consignment store operator.” (Tr. 26). Collins’s claim failed
at step four. (Tr. 26).
10

“[t]he claimant . . . bears the initial burden of proving that she is unable to perform
her previous work.” See Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990)
(citing Cannon v. Bowen, 858 F.2d 1541, 1544 (11th Cir.1988); Jones v. Bowen, 810
F.2d 1001, 1005 (11th Cir.1986)). To the extent this opinion talks about the other
steps (other than step five, which the ALJ did not reach), it is reminded that “a
claimant bears the initial burden of establishing the existence of a disability.” Id.
(citing 42 U.S.C. § 1382c(a)(3) (1982); 20 C.F.R. § 416.912 (1989); Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir.1987)).
i.

The ALJ Properly Determined That Collins’s Work in Her
Consignment Store Was Past Relevant Work.

Substantial gainful activity is work activity that is both substantial and
gainful:
(a) Substantial work activity. Substantial work activity is work activity
that involves doing significant physical or mental activities. Your work
may be substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you worked
before.

Collins herself seems to contemplate that this is a step four case. (See Doc. 8 at 10)
(“However, the ALJ nevertheless found the claimant ‘Not Disabled’ because the ALJ determined
that the claimant can still allegedly perform her past work.”).
The Commissioner also argues this as a step four case. (See Doc. 12 at 4) (“Because the
ALJ found [Collins] not disabled as step four, he did not need to continue to step five of the
sequential evaluation.”); (See Doc. 7 at 1) (“Does substantial evidence support the
Commissioner’s finding that Plaintiff was not disabled because she could return to work as a
consignment store owner?”).
11

(b) Gainful work activity. Gainful work activity is work activity that you
do for pay or profit. Work activity is gainful if it is the kind of work
usually done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like
taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs to be substantial gainful
activity.
20 C.F.R. § 416.972.
Collins’s position is based on a flawed premise that part-time work cannot be
substantial gainful activity (and hence past relevant work) at step four. (Doc. 8 at 13).
What Collins basically does, in her brief, is emphasis this passage from SSR 96-8p:
“A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an
equivalent work schedule.” (Doc. 8 at 13). However, Collins ignores the footnote
immediately following that sentence. (See id.). That footnote is crucial, especially
given that this is a step four case. It states:
The ability to work 8 hours a day for 5 days a week is not always
required when evaluating an individual's ability to do past relevant work
at step 4 of the sequential evaluation process. Part-time work that was
substantial gainful activity, performed within the past 15 years, and
lasted long enough for the person to learn to do it constitutes past
relevant work, and an individual who retains the RFC to perform such
work must be found not disabled.
SSR 96-8p, 1996 WL 374184, at fn. 2. The language of SSR 96-8p closely tracks the
language in the Code of Federal Regulations. The Code of Federal Regulations

12

defines “past relevant work” as “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). This means that part-time work can be substantial
gainful activity and past relevant work. For that reason, if Collins “retains the RFC
to perform such work” she “must be found not disabled.” See SSR 96-8p.
Collins basically argues that “only an ability to do full-time work will permit
the ALJ to render a decision of not disabled beyond Step 1.” (See Doc. 8 at 13)
(emphasis added). Collins cites to 20 C.F.R. § 404.1520(f) (Doc. 8 at 13), so the
Court includes that section here, in its entirety:
(f) Your impairment(s) must prevent you from doing your past relevant
work. If we cannot make a determination or decision at the first three
steps of the sequential evaluation process, we will compare our residual
functional capacity assessment, which we made under paragraph (e) of
this section, with the physical and mental demands of your past relevant
work. See paragraph (h) of this section and § 404.1560(b). If you can
still do this kind of work, we will find that you are not disabled.
20 C.F.R. § 404.1520(f) (emphasis added). As explained by this Court above, parttime work can be substantial gainful activity and past relevant work. Nothing about
20 C.F.R. § 404.1520(f) changes this conclusion.
Collins rests much of her argument on Kelley v. Apfel. (Doc. 8 at 12) (citing
Kelley v. Apfel, 185 F.3d 1211 (11th Cir. 1999)). However, the Kelley case was a step
five case. See Kelley, 185 F.3d at 1215 (“We emphasize that the instant case was a
13

Step Five case, not a Step One case.”). The court in Kelley stated that “it is not
necessary for us to confront the issue of whether part-time work, as opposed to fulltime work, will prevent a claimant from being found disabled as Step Five.” Id. This
current case is a step four case, and Kelley does not aid Collins’s position.
Collins takes issue with the ALJ’s hypothetical because it does not conclude
that Collins “can still perform ‘substantial gainful activity.’” (Doc. 8 at 11). However,
that was not the point of the hypothetical. The point of the hypothetical was to get an
expert opinion about whether an individual with limitations similar to Collins’s could
perform past relevant work. (Tr. 338). The ALJ already determined, at step one, that
“[Collins’s] past work as a consignment store owner was both substantial and
gainful.” (Tr. 16). Accordingly, this argument fails.
Collins implies that working “just 12-14 hours per week” is not enough to
make her work at the consignment shop past “relevant full-time” work. (Doc. 8 at 11).
However, this case has to be evaluated under 20 C.F.R. § 404.1575 because Collins
was self-employed. See 20 C.F.R. § 404.1575. There is nothing in 20 C.F.R. §
404.1575(a) indicating that 12-14 hours a week is not enough for substantial gainful
activity. Although § 404.1575(b) does state that one of the tests for whether an
activity meets the level of “significant services” is whether the claimant “render[s]
management services for more than 45 hours a month regardless of the total
14

management time required by the business” (20 C.F.R. § 404.1575(b)(1)), this
“significant service” issue is only relevant to test one. Id. at § 404.1575(a)(2)(i). This
Court has already discussed how it erred in narrowly focusing on the ALJ’s
discussion of test one, when the ALJ ultimately relied on tests two and three. For this
reason, its unnecessary to discuss the impact of “significant services,” as that was not
relied upon by the ALJ in his decision.
Further, the Medical-Vocational Guideline Grids do not contradict the ALJ’s
finding that Collins was not disabled. Collins starts and ends her arguments with the
implication that 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 202.06 compels a
finding of “disabled.” (See Doc. 8 at 9-10);6 (see Doc. 8 at 14).7 However, GRID Rule
202.06 does not apply because the ALJ properly found that Collins is able to perform
her past relevant work. (Tr. 26). The Grid itself contemplates this outcome. See 20

6

Collins states:

When an individual age 55 or older (advanced age) who is a high school graduate
or more has previous work experience in skilled or semiskilled work, but those
work skills are not transferable, the medical vocational rules ("grids") direct a
ruling of "Disabled". See 20 CFR Part 404, Subpart P, Appendix 2, Rule 202.06.
(Doc. 8 at 9-10).
7

Collins states:

Because the claimant can perform no more than light work and has no transferable
skills she is disabled. See GRID Rule 202.06, supra.
(Doc. 8 at 14).
15

C.F.R. Part 404, Subpart P, Appendix R, Rule 202.00(c). It states:
(c) However, for individuals of advanced age who can no longer
perform vocationally relevant past work and who have a history of
unskilled work experience, or who have only skills that are not readily
transferable to a significant range of semi-skilled or skilled work that is
within the individual's functional capacity, or who have no work
experience, the limitations in vocational adaptability represented by
functional restriction to light work warrant a finding of disabled.
See id. (emphasis added).
In conclusion, the ALJ properly determined that Collins’s work at her
consignment store was past relevant work.
ii.

The ALJ’s Decision That Collins Can Return to Her Past
Relevant Work Is Supported by Substantial Evidence.

The ALJ’s determination that “[Collins] is capable of performing past relevant
work as a consignment store operator” is supported by substantial evidence. (Tr. 26)
(emphasis omitted).
In this case, the ALJ did an extensive analysis of Collins's residual functional
capacity. (Tr. 19-25). It is not this Court’s job to re-weigh the evidence.8 In making

8

The role of the Court in reviewing these appeals is narrow:

We may not decide the facts anew, reweigh the evidence, or substitute our judgment
for that of the Secretary. Even if we find that the evidence preponderates against the
Secretary's decision, we must affirm if the decision is supported by substantial
evidence. Yet, within this narrowly circumscribed role, we do not “act as
automatons.” We must scrutinize the record as a whole to determine if the decision
reached is reasonable, and supported by substantial evidence.
16

his determination that Collins could “perform[ ] her past relevant work as a
consignment store operator”, the ALJ relied on the Vocational Expert’s answers to
an interrogatory. (Tr. 26).9 In the Eleventh Circuit, “a vocational expert’s testimony”
can “constitute substantial evidence” if “the ALJ [poses] a hypothetical question
which comprises all of the claimant’s impairments.” See Wilson, 284 F.3d at 1227.
The hypothetical was the following:
7.
The following hypothetical is based upon your prior testimony. If
your prior testimony is altered as the result of your current review of
your case review notes or other materials used in formulating your prior
or current testimony, please note the change accordingly.
Assume a hypothetical individual who was born on August 28, 1955.
Further, assume that the individual could perform light exertional work.
Assume this individual can frequently climb ramps and stairs but never
climb ladders or scaffolds. This person can frequently balance but can
only occasionally stoop, crouch, kneel and crawl. This individual should
never be exposed to unprotected heights, dangerous machinery,
dangerous tools or hazardous processes and should be exposed to no
more than moderate noise levels. In addition to normal workday breaks,
this person would be off-task up to 5% of an 8-hour workday (in nonconsecutive minutes).
Substantial evidence is more than a scintilla, but less than a preponderance.
It is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.
Bloodsworth, 703 F.2d at 1239 (internal citations omitted).
9

The Vocational Expert also testified on October 19, 2015, at Tr. 77-83. It appears that
Collins focuses on the hypothetical questions at the hearing, not the hypothetical questions
answered in the follow-up interrogatory. (Doc. 8 at 10-11). It is important to focus on the follow
up interrogatories as well, given that is what the ALJ relied on in his opinion. (Tr. 26) (citing to
Exhibit 26E, the follow-up interrogatories).
17

8.
Could the individual described in item #7 perform any of the
claimant’s past jobs, deemed to be past relevant work, as actually
performed by the claimant?
(Tr. 338).10 The Vocational Expert responded that Collins could perform the jobs of:
medical insurance biller, office manager, X-ray technician, small business owner,
bookkeeper, and sales clerk. (Tr. 338).11 Further, the Vocational Expert found that the
hypothetical individual could do those jobs “as actually performed by [Collins].” (Tr.
338) (emphasis omitted). In conclusion, the ALJ’s decision is supported by
substantial evidence.
iii.

Collins’s Response to the Motion To Alter or Amend

Additionally, nothing in Collins’s response to the Motion To Alter or Amend
changes this Court’s decision to affirm the Commissioner’s decision. Collins
essentially cites two cases.12 (Doc. 21 at 1-8) (citing Rollins v. Shalala, 19 F. Supp.
2d 1100 (C.D. Cal. 1994)); (Doc. 21 at 9-10) (citing Rams v. Chater, 989 F. Supp.
309 (D. Mass. 1997)). However, neither of these cases advance Collins’s argument.
10

The Court explained in section III(B)(I) why a similar hypothetical was proper. The
Court reiterates the Vocational Expert’s testimony to show why the ALJ’s decision was
supported by substantial evidence.
11

The Vocational Expert noted that she “reviewed the evidence in this case relating to
[Collins’s] vocational background” and had “sufficient evidence . . . to form an opinion of
[Collins’s] vocational status.” (Tr. 337).
12

Collins also cites to Kelley v. Apfel again. (Doc. 21 at 8) (citing Kelley v. Apfel, 185
F.3d 1211 (11th Cir. 1999)). However, the Court has already explained why this case does not
help Collins.
18

In Rollins, the court actually affirmed the ALJ’s decision. See Rollins, 19 F.
Supp. 2d at 1104 (“In sum, there is substantial evidence supporting the ALJ's
determination that plaintiff was engaged in substantial gainful activity as of the date
when his insured status expired. Accordingly, I find no error in the ALJ's conclusion,
reached at step one of the sequential evaluation, that plaintiff was ‘not disabled.’”).
Collins tries to contrast her case to the Rollins case. (See Doc. 21 at 8) (“Unlike the
dentist in Rollins, Ms. Collins never operated her consignment shop ‘with the hope
of making a living at it.’ In contrast to Rollins, the evidence in this case is that
Plaintiff kept her failing consignment shop open more for her personal pleasure or as
a hobby than for actual business reasons.”).
However, Collins does not cite any part of the record conclusively indicating
that her consignment shop was a “hobby” (see Doc. 21 at 6-7), and “[s]tatements by
counsel in briefs are not evidence.” Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337
(5th Cir. 1980).13
Further, the idea that the consignment shop was a “hobby” is mentioned for the
first time during the Motion To Alter or Amend; it does not show up in the original
briefing. (See generally Doc. 8). In fact, the original briefing states that “[t]he ALJ

13

See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (holding
that decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981, are binding in the Eleventh Circuit).
19

duly analyzed the claimant’s past part-time work under step 1 to determine that she
engaged in [substantial gainful activity].” (Id. at 12). On one hand, Collins is saying
that the ALJ properly determined that the consignment shop was substantial gainful
activity,14 and on the other she is calling it a hobby.15 Collins cannot have it both
ways.
Collins also cites to Rams. (See Doc. 21 at 9) (citing Rams, 989 F.Supp. at 31920). In Rams, the district judge reversed the ALJ’s determination because “[t]he ALJ
. . . never made a determination of RFC or of the mental, physical and other demands
of plaintiff’s past work as court reporter. The ALJ must have made such
determination before reaching her step-four finding.” See 989 F. Supp. at 319 (citing
20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1546). In this case, the ALJ’s analysis of
Collins’s residual functional capacity was extensive. (Tr. 19-25). The ALJ then had
the Vocational Expert consult on whether someone with Collins’s limitations could
perform Collins’s past relevant work. (Tr. 26). There is no Rams error here.
In conclusion, the ALJ’s decision is supported by substantial evidence and is
hereby AFFIRMED.

14

(See Doc. 8 at 12).

15

(See Doc. 21 at 8).
20

C.

The Application for Fees.

Collins filed an Application for Fees Under the Equal Access to Justice Act
(the “Application”) on August 24, 2017. (Doc. 17). The Court stated that it would
permit the Commissioner to respond to the Application after the Court ruled on the
Motion. (Doc. 22).
To be a prevailing party a “‘plaintiff [must have] succeeded on any significant
issue in litigation which achieve[s] some of the benefit . . . sought in bringing suit.’”
Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (quoting Texas State Teachers Ass’n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1993)). However, the actions the
Court takes today mean that Collins is no longer a prevailing party.16 For that reason,
the Application (Doc. 17) is DENIED.
IV.

CONCLUSION
For the reasons herein stated, this Court’s Memorandum Opinion (Doc. 13) and
16

The Eleventh Circuit in Newsome stated:

The EAJA provides that the district court “shall award to the prevailing party
other than the United States fees and other expenses ... incurred by that party in
any civil action (other than cases sounding in tort), including proceedings for
judicial review of agency action, brought by or against the United States ..., unless
the court finds that the position of the United States was substantially justified or
that special circumstances make an award unjust.” Courts have routinely awarded
EAJA attorney's fees to claimants in Social Security cases who satisfy the
statutory conditions.
Newsome v. Shalala, 8 F.3d 775, 777 (11th Cir. 1993) (emphasis added) (internal footnotes
omitted).
21

Order (Doc. 14) are VACATED. Upon further review, the Commissioner’s decision
is hereby AFFIRMED. A separate order will be entered closing the case.
The Application for Fees Under the Equal Access to Justice Act (Doc. 17) is
DENIED.
DONE and ORDERED this the 9th day of November, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

22