Henderson v. Colvin

Filing 22

Order that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, andsupplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 3/24/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARTHA J. HENDERSON,

*
*
*
*
* CIVIL ACTION NO. 14-00454-B
*
*
*
*
*
*

Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

ORDER
Plaintiff

Martha

J.

Henderson

(hereinafter

“Plaintiff”)

seeks judicial review of a final decision of the Commissioner of
Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et

seq.,

and

1381, et

seq.

On October

29,

2015, the

parties consented to have the undersigned conduct any and all
proceedings in this case.

(Doc. 19).

Thus, the action was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.

Upon careful consideration

of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
REVERSED and REMANDED.

I.

Procedural History
Plaintiff protectively filed her applications for benefits

on July 11, 2011.

(Tr. 156).

Plaintiff alleged that she has

been disabled since May 5, 2011, due to “seizures” and “problems
with neck and back.”
Plaintiff’s
request,

she

(Id. at 149, 155).

applications

was

granted

were

an

denied

and

timely

hearing

administrative

upon

before

Administrative Law Judge Marni McCaghren (hereinafter “ALJ”) on
January 16, 2013.
with

her

counsel

impairments.

(Id. at 23).
and

Plaintiff attended the hearing

provided

(Id. at 26).

testimony

related

to

her

A vocational expert (“VE”) also

appeared at the hearing and provided testimony.

(Id. at 55).

On February 13, 2013, the ALJ issued an unfavorable decision
finding that Plaintiff is not disabled.

(Id. at 18).

The

Appeals Council denied Plaintiff’s request for review on August
6, 2014.
February

(Id. at 1-2).
13,

2013,

Therefore, the ALJ’s decision dated

became

the

final

decision

of

the

Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on October 29, 1015 (Doc. 18), and agree
that this case is now ripe for judicial review and is properly
before

this

Court

pursuant

to

1383(c)(3).

2

42

U.S.C.

§§

405(g)

and

II.

Issues on Appeal
A.

Whether the ALJ erred in finding that
Plaintiff had transferrable skills from
past
relevant
work
as
a
hospital
admissions clerk and, thus, was not
disabled?

B. Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
physician, Dr. Stanley Barnes, M.D.?
C.

Whether the ALJ erred in failing to
articulate a linkage between the RFC and
the evidence?

III. Factual Background
Plaintiff was born on July 1, 1959, and was fifty-three
years

of

age

at

January 16, 2013.

the

time

of

her

(Tr. 23, 155).

administrative

hearing

on

Plaintiff testified that she

graduated from high school and completed one year of college.
(Id. at 27).
assistant.

She also received training to become a nursing

(Id.).

According to Plaintiff’s testimony and Work History Report,
she last worked from approximately 2010 to 2011 as a part-time
cashier in a convenience store, averaging about thirty hours a
week.

(Id. at 28).

In addition to being a cashier, Plaintiff

was responsible for cleaning, mopping, sweeping, and putting out
stock.

(Id.).

Her employment was terminated in May 2011, along

with all of the other employees at the store, when inventory was
discovered missing.

(Id. at 28, 150).

3

Prior to that, Plaintiff

worked at other convenience stores from approximately 1987 to
1990 and then again from 1995 to 2011. 1
Also,

from

manager

1999

of

managing
cleaning.

a

to

2001,

retail

day-to-day

Plaintiff

clothing

shop,

operations,

(Id. at 31).

(Id. at 150, 166).

worked
and

as

her

ordering

the

assistant

duties

included

merchandise,

and

Plaintiff also worked for approximately

eight years from 1991 to 1999 in medical admissions at Atmore
Community Hospital, admitting and discharging patients.2

(Id. at

29, 33, 197).

She was terminated from that job after her mother

became

(Id.).

ill.

Prior

to

that,

Plaintiff

worked

as

a

private duty nurse in the 1980’s for approximately four years,
working

approximately

thirty-two

working when her employer died.

hours

a

week,

(Id. at 30-31).

but

ceased

She last

applied for a receptionist type job in 2010 but did not get it.
(Id. at 33-34).

She also applied for a job as a certified

nursing assistant (“CNA”) at a nursing home in 2011, but she did
not get the job because she was not certified.

(Id. at 34).

Plaintiff testified that she currently has problems with
her neck and back, gastroesophageal reflux disease (“GERD”), and
1

The dates during which Plaintiff worked at her various jobs is
confusing, with the dates often overlapping.
(Tr. 31, 150,
166).

2

While Plaintiff reported working as a hospital admissions clerk
from January 1991 to February 1999, her earnings report reflects
that 1998 was the last year she worked in that position, and
her earnings in that position for 1998 were $1,755.36.

4

that she has had seizures.

(Id. at 35-36, 44).

Plaintiff

testified that she last had a seizure in May of 2012 and that it
was the only one that she had that year.

(Id. at 40).

She

testified that she generally has about one seizure a year and
that she worked for a couple of decades with that condition.
(Id. at 40-41).

Plaintiff also testified that she had a “MRSA”

(Methicillin-resistant Staphylococcus Aureus) infection in 2008.
(Id. at 35-36).
seizures),

3

Plaintiff’s medications include Dilantin (for

Lortab (for back pain), and Bisoprolol (for high

blood pressure).

(Id. at 40-42).

Plaintiff testified that she lives with her daughter and
her two grandchildren, ages five and eight.

(Id. at 26).

On a

typical day, she gets up at 6:00 a.m., sits in a chair, and
reads her bible for about thirty minutes.

(Id. at 45).

Then,

she cooks breakfast, washes the dishes, takes a bath, walks
around

the

house

television.
grandchildren’s

for

(Id.

at

about

thirty

44-48).

activities

at

She
school

regularly on Sunday and Tuesday nights.
does her own laundry and housework.
groceries and drives.

minutes,

and

watches

participates
and

in

attends

church

(Id. at 48-49).

(Id. at 51).

her

She

She shops for

(Id.).

Plaintiff also reported in her Function Report that she can
3

Plaintiff reported
Dilantin. (Tr. 178).

that

she

has

5

no

side

effects

from

the

lift approximately ten pounds, can squat but not for too long,
can walk for approximately fifteen minutes, cannot stand or sit
for too long, and reaching causes her arm to hurt.
163).

(Id. at

She can pay attention for “a good while;” she finishes

what she starts; she follows written instructions “okay;” and
she

follows

spoken

instructions

“very

well.”

reported that she does not handle stress well.
IV.

(Id.).

She

(Id. at 164).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

4

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
4

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
6

less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court 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); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in 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 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 5

5

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
7

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity (“SGA”) since
May 5, 2011, the alleged onset date, and that she has the severe
impairments
disc

of

disease

anterior

seizure

of

cervical

the

disorder,

osteoarthritis,

lumbar

and

cervical

discectomy

and

fusion,

shoulder pain, and chronic laryngitis.

6

spine,
with

degenerative
status-post

residual

(Tr. 13).

right

The ALJ

further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of

automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant 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 claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
6

The ALJ also found that Plaintiff’s menorrhagia and anemia were
non-severe. (Tr. 14).

8

the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The

ALJ

(Id. at 14).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
sedentary

work,

with

the

restrictions

that

Plaintiff

“is

to

avoid all crouching, kneeling, crawling, driving, use of heavy
hand controls with the right hand, overhead reaching with the
right arm, climbing of ropes, ladders, or scaffolds, or exposure
to moving machinery or unprotected heights.

She is to avoid

frequent communication, whether in person or by telephone; and,
due to pain and potential side effects of medication, she is
expected to be off-task for approximately 5% of the work day.”
(Id. at 14-15).

The ALJ also determined that while Plaintiff’s

medically determinable impairments could reasonably be expected
to produce the alleged symptoms, and her statements concerning
the intensity, persistence, and limiting effects of the alleged
symptoms

were

disability.

credible,

they

did

not

support

a

finding

of

(Id. at 15).

Utilizing

the

testimony

of

a

VE,

the

ALJ

found

that

considering Plaintiff’s residual functional capacity for a range
of sedentary work, with the stated restrictions, as well as her
age, education, and work experience, Plaintiff is not capable of
performing

her

past

work

as

a

hospital

admissions

clerk,

cashier, nurse’s aide, apparel salesperson, and inventory clerk.

9

(Id. at 16).
as

However, the ALJ found that Plaintiff’s past work

a

hospital

admissions

“past

relevant

work”

clerk

with

(which

skills

that

was

semi-skilled)

were

transferrable

was
to

sedentary work, and, thus, under Medical Vocational Rule 201.15,7
Plaintiff is not disabled.
The

Court

now

(Id. at 17).

considers

the

foregoing

in

light

of

the

identifying

the

record in this case and the issues on appeal.
1.
A.

Issue
Whether the ALJ erred in finding that
Plaintiff had transferrable skills from
her past relevant work as a hospital
admissions clerk and, thus, was not
disabled?

Plaintiff

argues

that

the

ALJ

erred

in

position of hospital admissions clerk as “past relevant work”
with skills that are transferrable to other work in the national
economy that she is able to perform.

Specifically, Plaintiff

argues that her work as a hospital admissions clerk does not
constitute “substantial gainful activity” under the regulations
and, thus, cannot constitute “past relevant work” for purposes
of

finding

Commissioner

her

not

counters

disabled.
that

(Doc.

Plaintiff’s

7

13
work

at
as

6-13).
a

The

hospital

Specifically, the ALJ found that Plaintiff’s past work as a
hospital admissions clerk had skills (such as record keeping and
organization) that were transferrable to other work in the
national economy that Plaintiff is able to perform, such as
timekeeper, medical voucher clerk, and laundry pricing clerk
(all of which are semiskilled and sedentary). (Tr. 17).

10

admissions clerk does constitute “substantial gainful activity”
(“SGA”) and, thus, was properly considered by the ALJ as “past
relevant work” with transferrable skills, rendering Plaintiff
not disabled.

(Doc. 16 at 4-5).

Having reviewed the record at

length, the Court finds that this case must be reversed and
remanded due to the ALJ’s failure to analyze whether Plaintiff’s
past

work

“substantial

as

a

gainful

hospital

admissions

activity”

(thereby

clerk

constitutes

constituting

“past

relevant work”), a prerequisite to finding that Plaintiff is not
disabled under Medical Vocational Rule 201.15.
Medical Vocational Rule 201.15, relied on by the ALJ (Tr.
17), provides that a person is not disabled if she is closely
approaching advanced age, if she is a high school graduate, and
if her “past relevant work” is at least semi-skilled and the
skills are transferable.

See 20 C.F.R. Pt. 404, Subpt. P, App.

2; see also Taylor v. Secretary of Health & Human Servs., 891
F.2d 292, *3 (6th Cir. 1989) (unpublished).

To qualify as “past

relevant work,” the work must have been done: 1) within the last
fifteen years; 2) long enough for the claimant to learn to do
it; and 3) at a level constituting substantial gainful activity.
See 20 C.F.R. § 416.965(a); see also Clark v. Astrue, 2009 U.S.
Dist. LEXIS 30709, *13, 2009 WL 943537, *5 (S.D. Ala. Apr. 3,
2009).

Under the regulations, “substantial gainful activity” is

“work activity that is both substantial and gainful.”

11

See 20

C.F.R. § 416.972.

Substantial work activity is “work activity

that involves doing significant physical or mental activities .
. . even if it is done on a part-time basis,” and gainful work
activity is work activity done “for pay or profit.”
“In

evaluating

work

activity

for

Id.

substantial

gainful

activity purposes, the primary consideration is the claimant’s
earnings from work activity.”

Green v. Commissioner, Soc. Sec.

Admin., 555 F. Appx. 906, 908 (11th Cir. 2014) (unpublished).
The

regulations

thresholds

to

use

earnings

assist

in

guidelines

the

with

monthly

determination

of

minimum

whether

claimant’s past work was substantial gainful activity.
C.F.R. § 416.974(b).

a

See 20

“If a claimant receives wages exceeding

those set out in an earnings guidelines table, a presumption
arises

that

she

was

during that period.”
101152,

*35,

2015

WL

engaged

in

substantial

gainful

activity

Sommers v. Colvin, 2015 U.S. Dist. LEXIS
4633516,

*11

(N.D.

Fla.

Aug.

3,

2015)

(quoting Green, 555 Fed. Appx. at 908).
“When comparing a claimant’s average monthly income to the
earnings guidelines, the claimant’s income is generally averaged
over

the

actual

period

of

work

involved.”

Gentile

v.

Commissioner of Soc. Sec., 2014 U.S. Dist. LEXIS 121093, *8,
2014 WL 4279057, *3 (M.D. Fla. Aug. 29, 2014) (citing SSR 83–35,
1983 WL 31257, at *1–3 (1983) (“for example, the earnings of a
hypothetical claimant working from January 1982 to August 1982

12

are divided by eight (8) -- the number of months actually worked
-- and not by twelve (12).”).

However, “[w]hen an individual

works over a period of time during which the SGA level changes,
earnings

are

not

averaged

over

the

entire

period

of

work

involved; rather, they are averaged over each period for which a
different

SGA

level

applies.”

SSR

83-35,

1983

WL

31257.

Likewise, “[w]hen there is a significant change in work patterns
or earnings, the earnings must be averaged over each separate
period of work involved to determine if either effort was SGA.”
Id.
SSR 83–35 explains: “If the individual’s pattern of work
was

(or

is)

continuous

without

significant

change

in

work

patterns or earnings, and there was no change of SGA earnings
levels during the period involved, earnings are to be averaged
over the entire period of work requiring evaluation.”
WL

31257.

activities

“However,
vary

when

somewhat

an
from

employee’s

Id., 1983

earnings

month-to-month,

it

or
may

work
be

necessary to average the ‘countable earnings’ reported over a
number of months in order to compare those earnings with the
applicable monthly amount in the Earnings Guidelines.”
In

addition,

insufficient

to

even

raise

a

if

the

claimant’s

presumption

of

Id.

earnings

substantial

are

gainful

activity, the ALJ can still consider other information which may
indicate that the claimant engaged in SGA.

13

See Sommers, 2015

U.S. Dist. LEXIS 101152 at *35, 2015 WL 4633516 at *11 (citing
Eyre v. Commissioner, Soc. Sec., 586 F. Appx. 521, 524 (11th
Cir. 2014) (stating that “[e]ven where the claimant’s average
monthly

earnings

were

earnings

guidelines,

claimant

was

information

below
if

engaged
may

be

the

other

in

amount

established

evidence

substantial

considered,

gainful

such

as

the

that

indicates

by

the

activity”

“whether

that

the

work

performed was ‘comparable to that of unimpaired people in [the
claimant’s]

community

who

[were]

doing

the

same

or

similar

occupations as their means of livelihood, taking into account
the

time,

energy,

work.’”)).
amount

skill,

Indeed,

ordinarily

and

responsibility

“[a]lthough

show

that

an

involved

earnings

below

employee

has

the

not

in

the

threshold

engaged

in

substantial gainful activity, the fact that earnings are below
the guidelines is not dispositive.”

Hunsberger v. Colvin, 2015

U.S. Dist. LEXIS 79174, *11, 2015 WL 3793615, *4 (M.D. Fla. June
18, 2015) (citing cases: Reeder v. Apfel, 214 F.3d 984, 989 (8th
Cir. 2000) (noting that a claimant’s “low earnings are more the
result of her choice to work only seasonally than an indicator
of a physical or mental inability to work the entire year”);
Fuentes v. Colvin, 2015 U.S. Dist. LEXIS 17915, *28, 2015 WL
631969,

*10

determination

(W.D.N.Y.
that

Feb.

claimant’s

13,

2015)

previous

work

(affirming
was

ALJ’s

substantial

gainful activity “especially considering that [the claimant’s]

14

earning

records

reveal

that

he

had

multiple

jobs

.

.

.

suggesting that he was employed as an office cleaner on a parttime basis because it was not his primary employment”); Nishke
v. Astrue, 878 F. Supp. 2d 958, 987 (E.D. Mo. 2012) (evidence
showed that “plaintiff’s low earnings in the cited jobs were
more likely the result of her choice regarding her work schedule
than an indication of a mental inability perform the jobs at the
presumptive

substantial

gainful

activity

level”);

Hearod

v.

Astrue, 2011 U.S. Dist. LEXIS 92233, *40-41, 2011 WL 3648269,
*14 (E.D. Mo. July 29, 2011) (finding that the claimant’s “low
earnings appear to be more the result of her choice to obtain
work through a temporary agency, rather than an indication of a
physical or mental inability to perform the work throughout the
year.”)).
As this Court noted in Clark, “[t]he problem in this case
is that the ALJ failed to identify and discuss in any meaningful
manner the evidence that supports a conclusion that plaintiff’s
past

work

.

.

.

rises

to

the

level

of

substantial

activity, thereby constituting past relevant work.”

gainful

Clark, 2009

U.S. Dist. LEXIS 30709 at *14, 2009 WL 943537 at *5 (citing 20
C.F.R. § 416.960).

In the present case, the ALJ did not mention

Plaintiff’s average monthly earnings as a hospital admissions
clerk, nor did she identify the period of work under evaluation
or discuss any evidence related to the issue of whether that

15

work rose to the level of substantial gainful activity, thereby
qualifying as past relevant work.
that

“[t]he

claimant

has

past

Rather, the ALJ simply stated
relevant

work

as

a

hospital

admissions clerk . . .” and, based on the VE’s testimony that
her past work as a hospital admissions clerk was semi-skilled
and had skills in record keeping and organization

that were

transferrable to sedentary work, she is not disabled.

(Tr. 16-

17).
Contrary to the ALJ’s conclusory statement that Plaintiff
has “past relevant work” as a hospital admissions clerk, the
evidence

of

Plaintiff’s

earnings

during

the

fifteen

years

preceding the ALJ’s decision seems to indicate that it was not
substantial gainful activity.

The record shows that Plaintiff

reported working as a hospital admissions clerk from January
1991 to February 1999 (see “Claimant’s Work Background,” id. at
197); however, her earnings report shows that the last year that
she worked in that job was actually 1998.
record

also

reflects

earnings

from

(Id. at 142).

Plaintiff’s

work

The
as

a

hospital admissions clerk as follows: $0 in 1999; 8 $1,755.36 in
1998;
1995;

9

$14,096.37 in 1997; $12,314.76 in 1996; $12,743.72 in
$12,372.49

in

1994;

$11,560.91

in

1993;

$12,404.94

in

8

Plaintiff’s income from 1999 was from self-employment earnings,
not from her work as a hospital admissions clerk. (Tr. 142).

9

The balance of Plaintiff’s earnings for
employment earnings in the amount of $4,372.00.

16

1998 was self(Tr. 142).

1992; and $16,487.90 in 1991.

(Id. at 140-42).

It is indiscernible from the ALJ’s decision what period of
time she evaluated in calculating Plaintiff’s average monthly
earnings for purposes of determining if the work constituted
SGA, thereby constituting past relevant work.

As previously

discussed, the Eleventh Circuit has defined “past relevant work”
as “work that you have done within the past 15 years, that was
substantial gainful activity.”
Soc.

Sec.

Admin.,

2015

U.S.

Mosley v. Acting Commissioner of
App.

LEXIS

8105166, *3 (11th Cir. Dec. 8, 2015).

21193,

*10,

2015

WL

In this case, the fifteen

year period preceding the ALJ’s decision denying benefits would
encompass the period from February 1998 to February 2013.

As

discussed, during this fifteen year period, Plaintiff worked as
a

hospital

admissions

clerk

only

in

1998.

Assuming

that

Plaintiff performed that job the entire year, as indicated by
her “Work Background” report (id. at 197), and given that her
total earnings from the job in 1998 were $1,755.36, as indicated
by

her

earnings

earnings
(if

record

based

on

(id.

at

eleven

142),

months

from

December 1998) would be well below the
designated

by

the

Agency

gainful activity in 1998.
416.974(b)(2)(i).
determined

that

as

her

ordinarily

average

monthly

February

through

$500 monthly minimum
showing

substantial

See 20 C.F.R. §§ 404.1574(b)(2)(i),

While it is possible that the ALJ could have
a

different

(shorter)

17

period

of

evaluation

applied or that other factors rebutted the presumption of no
SGA, the ALJ wholly failed to discuss this issue.

Therefore,

the Court must conclude, based on the evidence before the Court,
that the ALJ erred in finding that Plaintiff’s earnings from her
job as a hospital admissions clerk

in 1998 constituted SGA.

Consequently, it was reversible error for the ALJ to conclude
that this past work constituted past relevant work for purposes
of finding Plaintiff not disabled under Medical Vocational Rule
201.15.
In sum, because there is no substantial evidence to support
the ALJ’s finding that Plaintiff’s work as a hospital admissions
clerk

constituted

substantial

gainful

employment,

thereby

constituting “past relevant work” with skills transferrable to
other work in the national economy that Plaintiff could perform,
the ALJ erred in finding that Plaintiff is not disabled under
Medical Vocational Rule 201.15, and this case must be remanded
for further administrative proceedings.10

10

On remand, the ALJ shall reevaluate whether Plaintiff
performed substantial gainful activity as a hospital admissions
clerk pursuant to the applicable regulations and SSA policy. If
the ALJ believes that Plaintiff’s earnings during the relevant
work period meet the presumptive SGA levels or if the ALJ finds
that Plaintiff engaged in SGA even though her earnings did not
meet presumptive SGA levels, the ALJ should explain this in her
decision.
In addition, on remand, the ALJ should explain how
she determined the relevant period of work requiring evaluation
and how she averaged Plaintiff’s earnings. See SSR 83–35, 1983
WL 31257.

18

V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be REVERSED and REMANDED.11
DONE this 24th day of March, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

11

Having determined for the reasons discussed herein that this
action must be remanded, the Plaintiff’s remaining issues are
pretermitted.

19