Young v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER entered, The Court finds that the ALJ's determination that plaintiff has engaged in SGA since the alleged onset date of April 1, 2007 is supported by substantial evidence. And accordingly, it is ORDERED that the decision of the Commissioner of Social Securitydenying plaintiff benefits be AFFIRMED, as further set out. Signed by Magistrate Judge William E. Cassady on 6/22/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HAZEL SCOTT YOUNG
Plaintiff,

:
:

v.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

Defendant.

CA 10-0531-C

:
MEMORANDUM OPINION & ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
application for disability insurance benefits and supplemental security income. The
parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant
to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 21 (“In accordance with
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have
a United States Magistrate Judge conduct any and all proceedings in this case, including
. . . order the entry of a final judgment, and conduct all post-judgment proceedings.”);
Doc. 22) Upon consideration of the administrative record (“R.”) (Doc. 12), plaintiff’s
brief (Doc. 14), the Commissioner’s brief (Doc. 17), and the arguments made by the
parties at the May 25, 2011 Hearing, it is determined that the Commissioner’s decision
denying plaintiff benefits should be affirmed.1

1

Any appeal taken from this memorandum opinion and order and

RELEVANT BACKGROUND
In June 2007, plaintiff filed applications under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-33 and 1381-83c, respectively (R. 122-27), claiming she
became disable on April 1, 2007, due to back, knee, and leg impairments, high blood
pressure, and carpal tunnel syndrome (R. 145). Plaintiff’s claims were initially denied
on September 12, 2007.

(R. 66-79.)

She then requested a hearing before an

administrative law judge (the “ALJ”) (R. 82-84), which was held on April 29, 2009 (R.
19-65). The ALJ found that plaintiff was not disabled (R. 10-18), and the Appeals
Council declined review of that decision (R. 1-5).
In her October 7, 2009 decision, the ALJ found that because plaintiff has
performed work at a substantial gainful activity (“SGA”) on a continuous basis since the
alleged onset date, there is no continuous 12 months during which she was not engaging
in substantial gainful activity. (R. 15-18.) At the time of the decision, plaintiff had
been employed as a nanny since October 2001, and earned more than $18,000 annually
from her employers. (R. 15.) She testified, however, that because of her disability, she
now did little work other than monitoring the children and that her employers have
accommodated her because she was “just like a part of [the] family” and had been with
them for many years, earning their children’s trust. (R. 31-37).
judgment shall be made to the Eleventh Circuit Court of Appeals. (See Doc. 21 (“An
appeal from a judgment entered by a Magistrate Judge shall be taken directly to the
United States Court of Appeals for this judicial circuit in the same manner as an appeal
from any other judgment of this district court.”).)
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A vocational expert (the “VE”) testified that the job plaintiff performed—prior to
her disability—was as a child monitor or nanny.

(R. 59-60.)

Since her claimed

disability, the VE testified that the job “she’s doing right now . . . would not fit any
profile in the Dictionary of Occupational Titles.” (R. 61.) The VE further explained,
“most nannies are there when the children are there, and she spends a great deal of time
being paid staying at the house really not doing anything, and that’s why I’m saying it
doesn’t fit any DOT profile of a real competitive job in the labor market.” (R. 61-62.)
The ALJ chose to give no weight to the conclusion of the VE, stating: “The fact that the
claimant does not perform a job at the medium level of exertion has no bearing on
whether it is substantial gainful activity.

In spite of the minimal exertional

requirements of the job as performed by the claimant, she is employed full-time and
provides a service which is valuable to her employer.” (R. 17.)
STANDARD OF REVIEW
In all Social Security cases, the plaintiff bears the burden of proving that he or she
is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th
Cir. 1986). In evaluating whether the plaintiff has met this burden, the examiner must
consider the following four factors: (1) objective medical facts and clinical findings; (2)
diagnoses of examining physicians; (3) evidence of pain; and (4) the plaintiff’s age,
education, and work history. Id. Once the plaintiff meets this burden, it becomes the
Commissioner’s burden to prove that the plaintiff is capable—given his or her age,
education, and work history—of engaging in another kind of substantial gainful
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employment that exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836
(11th Cir. 1985).

Although at the fourth step “the [plaintiff] bears the burden of

demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny plaintiff
benefits is supported by substantial evidence. Substantial evidence is defined as more
than a scintilla, and means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). “In
determining whether substantial evidence exists, we must view the record as a whole,
taking into account evidence favorable as well as unfavorable to the [Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts are precluded,
however, from “deciding the facts anew or re-weighing the evidence.”

Davison v.

Astrue, 370 Fed. App’x 995, 996 (11th Cir. 2010) (per curiam) (citing Dyer v. Bernhart, 395
F.3d 1206, 1210 (11th Cir. 2005)). And, “[e]ven if the evidence preponderates against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Id. (citing Crawford v. Comm’r of Social Sec., 363 F.3d 1155, 1158-59
(11th Cir. 2004)).
ANALYSIS
This appeal turns on whether the ALJ’s determination that plaintiff has engaged
in SGA since the alleged onset date of April 1, 2007 (R. 15-17) is supported by substantial
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evidence. As this Court explained in Baker v. Astrue, Civil Action No. 08-00598-N, 2009
WL 2612204 (S.D. Ala. Aug. 21, 2009),
[s]ubstantial gainful activity is defined as work activity that involves
significant physical or mental activities and that is done for pay or profit.
See 20 C.F.R. § 404.1572. The regulation further provides that work may
be substantial even if an individual does less, or has less responsibility
than when he worked before. Id. The regulation also provides that “[i]n
evaluating your work activity for substantial gainful activity purposes, our
primary consideration will be the earnings you derive from the work
activity.” See 20 C.F.R. § 404.1574; Social Security Ruling (SSR) 83-33.
The average amount of earnings that an individual makes in a year is
indeed the primary guide used by the agency in determining the existence
of substantial gainful activity. See 20 C.F.R. § 404.1574. According to the
regulations, if Plaintiff worked for substantial earnings, the agency will
find that Plaintiff engaged in substantial gainful activity. Id.
Id. at *3; see also Gyore v. Astrue, No. CV-07-13-PHX-DGC, 2008 WL 490623, at *2 (D. Ariz.
Feb. 20, 2008) (“SGA is work done for pay or profit that involves significant physical or
mental activities.”) (citing 20 C.F.R. §§ 404.1572(a)-(b), 416.972(a)-(b)).
However, the presumption that a person is engaged in SGA because they earn a certain
amount (see 20 C.F.R. § 404.1574(b)(2)) may be rebutted.
To determine the salary attributable to substantial gainful activity, the
regulations specify that only salary earned through work attributable to
the worker’s productivity is to be considered. 20 C.F.R. § 404.1574(a)(2).
Any salary not attributable to the worker’s productivity may be considered
an employer subsidy and is not included in the SGA analysis. Id.; see also
Soc. Sec. Ruling 83-33 at 96 (“it is necessary to ascertain what portion of the
individual’s earnings represents the actual value of the work he or she
performed”).
Smith v. Chater, 73 F.3d 370, 1995 WL 766303, at *4 (9th Cir. Dec. 29, 1995) (unpublished).2
See also Malatesta v. Astrue, No. 1:07-cv-1219 (GLS), 2010 WL 3724033
(N.D.N.Y. Sep. 15, 2010):
2

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Plaintiff contends that the ALJ’s inquiry should not have ended with her
conclusion that plaintiff “is employed full-time and provides a service which is valuable
to her employer.” (Doc. 14 at 2 (citing R. 17) & 8.) According to plaintiff, the ALJ
should have considered whether the work was done under “special conditions” per 20
C.F.R. § 404.1573(c) (Doc. 14 at 8-12), and although that section of the regulations was

In evaluating the substantialness and gainfulness of the plaintiff’s work
activity, the Commissioner’s “primary consideration will be the earnings
[the plaintiff] derive[s] from the work activity,” unless the Commissioner
has information from the plaintiff, his employer, or others showing that
not all of his earnings should be considered. 20 C.F.R. § 404.1574(a)(1); see
also Social Security Ruling (SSR) 83-33, 1983 WL 31255, at *1 (S.S.A. 1983)
(“[E]arnings provide[ ] an objective and feasible measurement of work.”).
[For example, f]or the period between July 1999 and December 2000, the
regulations stipulate that monthly earnings that average more than $700
“ordinarily show that [a plaintiff] ha[s] engaged in substantial gainful
activity,” 20 C.F.R. § 404.1574(b)(2)(i), whereby a rebuttable presumption
arises that the [plaintiff] is no longer “disabled” for the purpose of
obtaining benefits. In order to determine which earnings represent the
“actual value of the work” performed, the Commissioner must first
ascertain the plaintiff’s gross or total earnings, including any payments
made in kind in lieu of cash. See SSR 83-33, 1983 WL 31255, at *2. The
Commissioner must then deduct any subsidized earnings provided by the
employer and any impairment-related work expenses paid by the
employee. See id. Work is subsidized “if the true value of [the plaintiff’s]
work, when compared with the same or similar work done by unimpaired
persons, is less than the actual amount of earnings paid.” 20 C.F.R. §
404.1574(a)(2); see also Smith v. Chater, 73 F.3d 370, 1995 WL 766303, at *4
(9th Cir. 1995) (unpublished) (“Any salary not attributable to the worker’s
productivity may be considered an employer subsidy and is not included
in the [substantial gainful activity] analysis.” (citations omitted)). The
remaining amount represents the actual value of work performed and is
therefore referred to as “countable earnings.” See SSR 83-33, 1983 WL
31255, at *2.
Id. at *2 (some internal citations omitted).
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cited by the ALJ (R. 16)—and the decision lists examples of special conditions (R. at
16-17)—plaintiff contends that the ALJ failed to conduct a sufficient analysis (Doc. 14 at
8-12).

But, instead, concluded—without discussing 20 C.F.R. § 404.1574—that “the

evidence as a whole does not indicate that the claimant’s employment should be
considered subsidized or sheltered.” (R. at 16-17.) On appeal, plaintiff insists that
there is substantial evidence that she was paid more than the reasonable value of the
services performed, and that under the applicable regulations (see 20 C.F.R. §
404.1574(a)(2); SSR 83-33), “the true value of [her] work, when compared with the same
or similar work done by unimpaired persons, is less than the actual amount of the
earnings paid to [her] for her work.” (Doc. 14 at 10.) Plaintiff thus contends that she
was “significantly subsidized by her employer due to the long term relationship with the
family,” and “[t]hough this work activity may technically be construed as being valuable
to the employer, there is no doubt that [she was] being paid much more than the actual
services performed.” (Id. at 11-12.)
The Commissioner counters that plaintiff’s monthly earnings—approximately
$1,500 for the applicable period (Doc. 17 at 3 & 6 (citations omitted))—exceeded the
regulatory earnings figure (between $900, in 2007, and $980, in 2009) for showing
presumptive substantial gainful activity.

(Id. at 6 (citations omitted).)

While the

Commissioner concedes that that presumption can be rebutted with evidence regarding
the nature of the work, the adequacy of performance, and the conditions of work, see 20
C.F.R. § 404.1573, he contends that the ALJ addressed “special conditions” under 20
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C.F.R. § 404.1573(c) in her decision (see R. at 16-17), finding that the “record as a whole
did not indicate that Plaintiff’s employment could be considered subsidized or
sheltered” (Doc. 17 at 7-8), and thus, her decision is supported by substantial evidence.
Although the ALJ did not conduct an analysis to determine whether plaintiff’s
income during the applicable period was subsidized,3 there is substantial evidence in
the record to conclude that such an analysis was not necessary because—based on the
value of the service plaintiff was providing her employers—she was engaged in SGA.
The facts of this case are analogous to those presented in Thomas v. Astrue, 359
Fed. App’x 761 (9th Cir. 2009), in which a panel of the Ninth Circuit Court of Appeals
affirmed the opinion of the district court upholding the finding of an ALJ that the
plaintiff, like plaintiff here, “was not eligible for benefits because she had engaged in
Several courts have held that an ALJ’s failure to meaningfully analyze the
subsidy issue pursuant to either SSR 83-33 or 20 C.F.R. § 404.1574 or § 416.974, where
appropriate, may necessitate remand. See Atkinson v. Astrue, Civil No. 08-cv-00646-LTB,
2009 WL 198027, at *4 (D. Colo. Jan. 28, 2009) (an ALJ’s decision “devoid of any
substantive analysis relating to the tests used to determine Plaintiff’s SGA as set forth in
SSR 83-33 and 20 C.F.R. § 404.1574 and § 416.974” should be remanded); Solenberger v.
Apfel, No. 97-4207-SAC, 1999 WL 319081, at *8-9 (D. Kan. Feb. 17, 1999) (“[a]lthough the
ALJ considered some facts in addition to Solenberger’ 1985 earnings in concluding that
she performed substantial gainful activity, the ALJ’s opinion fails to adequately consider
and discuss the factors set forth in 20 C.F.R. § 404.1574,” and thus, necessitated a
remand); Ting v. Apfel, No. C9803798 TEH, 2000 WL 274189, at *3 (N.D. Cal. Mar. 3, 2000)
(reversing and remanding where the Commissioner failed to respond to Plaintiff’s
advancement of SSR 83-33 and presentation of “a plausible argument for a reduction in
her ‘countable earnings’ based on the concept of subsidies described in SSR 83-33,”
which “could lead to a finding that Plaintiff did not engage in substantial gainful
activity”) (emphasis added); but see Solenberger, 1999 WL 319081, at *8 (ALJ “primarily
relied upon a mathematical analysis of [the plaintiffs’] earnings and ignored testimonial
evidence—unlike the ALJ in the instant matter).
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substantial gainful activity during the alleged period of disability.” Id. at 762. In
Thomas—as the ALJ in this case also found—plaintiff’s “earnings surpassed the monthly
maximum set by Social Security regulations,” and “[b]ased on this evidence, the ALJ
properly found that Thomas’ earnings created a presumption of substantial gainful
activity.” Id. at 762-63. Thomas, like plaintiff here, also argued 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 C.F.R. § 404.1574(a)(2). Thomas[—a grandmother paid by her
daughter to care for the grandchildren while her daughter worked
nights—]claim[ed] 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.
Id. at 763.
The Ninth Circuit concluded that the evidence in the record established that
Thomas was not paid a subsidy because:
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 [did] not provide evidence that
she was paid less than her true value. She[, instead, pointed] to evidence
that she performed lesser tasks than a standard “child monitor,” but
identifie[d] 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).
Id. (emphasis added). The court thus concluded that “[t]he evidence cited by Thomas
[did] 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.” Id.
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As was the case in Thomas, there is substantial evidence in the record here to
conclude, as the ALJ did, that—despite her inability to do much more than watch the
children—plaintiff’s mere “availability on a full-time basis to supervise the children and
get them to and from school and activities represents a valuable service to her employer,
even though that availability entails a certain amount of inactivity.” (R. at 17.) Cf.
Thomas, 359 Fed. App’x at 763 (concluding that even when asleep, plaintiff’s mere
presence—and availability to attend to the children if needed—provided considerable
value to her employer-daughter). Plaintiff’s limited work responsibilities (as compared
to what she was able to do prior to her claimed disability), moreover, may nevertheless
be considered substantial because she served as the children’s sole caretaker in the
absence of their parents. (R. at 34 (plaintiff testified that even after her claimed onset
date, she continued to supervise the children—going wherever they may go (to another
room, outside, etc.)). Cf. Thomas, 359 Fed. App’x at 763 (rejecting plaintiff’s argument
“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,” finding that
“[w]hile it is true that her work responsibilities were limited, there is countervailing
evidence in the record establishing that her work was substantial,” including that “she
was responsible for addressing any emergency that might arise”). Finally, based on
Thomas, and this Court’s discussion of its applicability to the facts of this case, the ALJ’s
decision not to credit the testimony of the VE—that plaintiff’s work was not a “real
job”—was not error.
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CONCLUSION
The Court finds that the ALJ’s determination that plaintiff has engaged in SGA
since the alleged onset date of April 1, 2007 is supported by substantial evidence. And
accordingly, it is ORDERED that the decision of the Commissioner of Social Security
denying plaintiff benefits be AFFIRMED.
DONE this the 22nd day of June, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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