DiSalvatore v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of § 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 9/19/2016. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JENNIFER A. DISALVATORE,
Plaintiff,
vs.

:
:
:

CA 14-0485-C

CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND 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 claims for a period of disability, 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. (Docs. 16 & 18 (“In accordance with the 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, . . .
order the entry of a final judgment, and conduct all post-judgment
proceedings.”).) Upon consideration of the administrative record, plaintiff’s brief,
the Commissioner’s brief, and the arguments of counsel at the October 29, 2015
hearing before the Court, it is determined that the Commissioner’s decision

denying benefits should be reversed and remanded for further proceedings not
inconsistent with this decision.1
I. Procedural History, Standard of Review, and the ALJ’s Decision
A. Procedural History
On May 10, 2011, Plaintiff filed an application for Disability Insurance
Benefits alleging a disability onset date of June 30, 2010. (Tr. 154–155, 156–162).
On the same day, Mrs. DiSalvatore also filed an application for Supplemental
Security Income (herein “SSI”) benefits (Tr. 163-171), with a protective filing date
of April 25, 2011 (See Tr. 66).2 The claims of Mrs. DiSalvatore for benefits were
initially denied by notice dated June 17, 2011 (Tr. 69-73, 74-79).
On July 13, 2011, Mrs. DiSalvatore requested a hearing (Tr. 82-83).
Pursuant to that request, a hearing was held on October 31, 2012 before an
Administrative Law Judge (“ALJ”) (Tr. 43-65). Following that initial hearing, the
ALJ ordered an additional psychological evaluation. An evaluation was arranged
for November 19, 2012, and the record was supplemented with the report from
that additional evaluation (Tr. 751-59 & 760-62).
A supplemental hearing was held on April 10, 2013 (Tr. 29-42). Following
the supplemental hearing, the ALJ issued a decision dated May 1, 2013 denying
1

Any appeal taken from the judgment shall be made to the Eleventh Circuit Court
of Appeals. (See Docs. 16 & 18 (“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.”))

2

“Disability Insurance Benefits are paid to disabled persons who have contributed
to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income
(“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both
provisions, disability is defined, in part, as an ‘inability to engage in any substantial
gainful activity’ due to ‘a medically determinable physical or mental impairment.’ 42
U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).” LePage v. Colvin, 2015 WL 5734836, *1, n. 1 (E.D.
Cal. Sept. 29, 2015)

2

Mrs. DiSalvatore the benefits for which she applied (Tr. 12-28). Mrs. DiSalvatore
timely requested review of the ALJ’s decision by the Appeals Council in a
request for review dated May 22, 2013 (Tr. 7 & 9), but the Appeals Council
denied Mrs. DiSalvatore’s request for review by notice dated September 4, 2014
(Tr. 1-6), thus making the ALJ’s decision of May 1, 2013 the final decision of the
Commissioner of Social Security. Mrs. DiSalvatore, having exhausted her
administrative remedies, timely filed the present civil action requesting judicial
review of the Commissioner’s decision, which is ripe for review pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3).
B. Standard of Review
A claimant is entitled to an award of disability insurance benefits or
supplemental security income when she is unable to engage in substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or last for a continuous
period of not less than 12 months. See 20 C.F.R. §§ 404.1505(a), 416.905(a) (2016).
In determining whether a claimant has met her burden of proving disability, the
Commissioner follows a five-step sequential evaluation process. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). At step one, if a claimant is performing substantial
gainful activity, she is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). At the
second step, if a claimant does not have an impairment or combination of
impairments that significantly limits her physical or mental ability to do basic
work activities (that is, a severe impairment), she is not disabled. 20 C.F.R. §§
404.1520(c), 416.920(c). At step three, if a claimant proves that her impairments
meet or medically equal one of the listed impairments set forth in Appendix 1 to
Subpart P of Part 404, the claimant will be considered disabled without
3

consideration of age, education and work experience. 20 C.F.R. §§ 404.1520(d),
416.920(d). At the fourth step, if the claimant is unable to prove the existence of a
listed impairment, she must prove that her physical and/or mental impairments
prevent her from performing her past relevant work. 20 C.F.R. §§ 404.1520(f),
416.920(f). And at the fifth step, the Commissioner must consider the claimant’s
residual functional capacity, age, education, and past work experience to
determine whether the claimant can perform other work besides past relevant
work. 20 C.F.R. §§ 404.1520(g), 416.920(g).
Plaintiff bears the burden of proof through the first four steps of the
sequential evaluation process, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct.
2287, 2294 n.5, 96 L.Ed.2d 119 (1987), and while the burden of proof shifts to the
Commissioner at the fifth step of the process to establish other jobs existing in
substantial numbers in the national economy that the claimant can perform, the
3

ultimate burden of proving disability never shifts from the plaintiff, see, e.g.,
Green v. Social Security Administration, 223 Fed.Appx. 915, 923 (11th Cir. May 2,
2007) (“If a claimant proves that she is unable to perform her past relevant work,
in the fifth step, ‘the burden shifts to the Commissioner to determine if there is
other work available in significant numbers in the national economy that the
claimant is able to perform.’ . . . Should the Commissioner ‘demonstrate that
there are jobs the claimant can perform, the claimant must prove she is unable to
perform those jobs in order to be found disabled.’”).

4

3

See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004)
(“The burden [] temporarily shifts to the Commissioner to demonstrate that ‘other work’
which the claimant can perform currently exists in the national economy.”).

4

“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.

4

The task for the Magistrate Judge is to determine whether the
Commissioner’s decision to deny Plaintiff benefits, on the basis that she is
capable of performing her past relevant work as a bookkeeper, 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, 91 S.Ct. 1420, 28 L.Ed.2d
842 (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
5

or re-weighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th
Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir.

2005)).

And,

“[e]ven

if

the

evidence

preponderates

against

the

Commissioner’s findings, [a court] must affirm if the decision reached is
supported by substantial evidence.” Id., citing Crawford v. Commissioner of Social
Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004).
C. ALJ's Decision
The ALJ determined that Plaintiff last met the insured status requirements
of the Social Security Act on December 31, 2013. (Tr. 17). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity from June 30, 2010, the alleged onset date, through the date of his
opinion. (Id.) At step two, the ALJ found that the Plaintiff suffered from the

5

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

5

following severe impairments: obesity; bipolar disorder; personality disorder;
anxiety disorder; hypertension; and asthma. (Id.) At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18). At step 4, the
ALJ determined that the Plaintiff has the residual functional capacity (“RFC”) to
perform a limited range of sedentary work. (See Tr. 20). He further found that
Plaintiff was limited to work that will only require that she: lift and carry up to
100 pounds occasionally, 20 pounds frequently, and 10 pounds continuously; sit
4 hours at one time and 6 hours during an 8-hour workday; stand and/or walk 2
hours at one time and 4 hours during an 8-hour work day; frequently reach,
handle, finger, feel, push, and pull; frequently operate foot controls; occasionally
climb ladders or scaffolds; frequently climb stairs and ramps; frequently balance
stoop, kneel, crouch, and crawl; never work around unprotected heights,
humidity, wetness, dust, odors, fumes, and pulmonary irritants; occasionally
work around moving mechanical parts, extreme temperatures and vibrations;
frequently operate a motor vehicle; and occasionally interact with the general
public and supervisors. (Id.) The ALJ determined that Plaintiff could return to
her past relevant work as a bookkeeper (DOT Code 210.382-014), which is a
sedentary, skilled occupation. (Tr. 23). Furthermore, he found that this work
does not require the performance of work-related activities precluded by
Plaintiff's RFC. (Tr. 20-23).
II. Analysis
Plaintiff raises three issues on appeal. As stated by Plaintiff, they are:

6

1. The ALJ erred in rejecting the opinions of Mrs. DiSalvatore’s treating
psychiatrist, Donna Earnshaw, M.D. Mrs. DiSalvatore has been treated by the
healthcare professionals at the Baldwin County Mental Health Center, including
her treating psychiatrist, Dr. Earnshaw, since December of 2010 (Tr. 665-79, 71112, 720, 723-24, 741-42, 743-48, 773).
2. The ALJ erred in failing to properly assess the credibility of Mrs.
DiSalvatore.
3. Whether the ALJ properly determined that the Plaintiff's past relevant
work as a “bookkeeper” was in fact past relevant work, given that the Plaintiff’s
bookkeeper work was sheltered work and does not qualify as past relevant work.
The undersigned has reviewed the record, the briefs of the parties and
listened to oral arguments. After this review, it is determined that the ALJ’s
decision to deny benefits at the fourth step of the sequential evaluation process is
not supported by substantial evidence. Since this decision requires a remand for
further consideration of Claimant’s petition for disability benefits, it is not
necessary for this Court to address all of plaintiff’s other assignments of error.
See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (“Because the ‘misuse
of the expert’s testimony alone warrants reversal, we do not consider the
appellant’s other claims.”).
A. Whether Claimant is Able to Perform Her Past Work as a
Bookkeeper as Normally Required by Employers in the National
Economy.
Claimants seeking disability benefits clearly are responsible for showing
that they are unable to perform past relevant work as they actually performed it,
or as it is performed in the general economy. Waldrop v. Commissioner of Social
Sec., 379 Fed.Appx. 948, 953 (11th Cir. May 21, 2010), citing Jackson v. Bowen, 801
7

F.2d 1291, 1293-1294 (11th Cir. 1986). Even so, the Commissioner has the
obligation to develop a full and fair record in order to prevent speculation or
conjecture on such a critical question. Schnorr v. Bowen, 816 F.2d 578, 581 (11th
Cir. 1987) (“Where there is no evidence of the physical requirements and
demands of the claimant's past work and no detailed description of the required
duties was solicited or proffered, the Secretary cannot properly determine
whether the claimant has the residual functional capacity to perform his past
relevant work.”) (citing Nelms v. Bowen, 803 F.2d 1164, 1165 (11th Cir.1986) and
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981)). Toward that end, an ALJ
must consider all of the duties of past relevant work and evaluate a plaintiff’s
ability to perform the past relevant work in spite of her impairments. Levie v.
Commissioner of Social Sec., 514 Fed.Appx. 829, 831 (11th Cir. Mar. 25, 2013), citing
Lucas v. Sullivan, 918 F.2d 1567, 1574 n. 3 (11th Cir. 1990) (remanding for
evaluation of all of claimant's impairments and the effect they have on her ability
to fulfill the duties of her past relevant work). In those instances where claimants
are found to have the ability to perform a past relevant job even with severe
impairments, the ALJ’s opinion should contain the following specific findings of
fact: “1. A finding of fact as to the individual’s RFC. 2. A finding of fact as to the
physical and mental demands of the past job/occupation. 3. A finding of fact that
the individual’s RFC would permit a return to his or her past job or occupation.”
SSR 82-62, 1982 WL 31386, *4 (1982).6 In cases, like this one, that involve “a

6

“Social Security Rulings are agency rulings published under the Commissioner’s
authority and are binding on all components of the Administration. Even though the
rulings are not binding on us, we should nonetheless accord the rulings great respect
and deference[.]” Klawinski v. Commissioner of Social Sec., 391 Fed.Appx. 772, 775 (11th
Cir. Aug. 6, 2010) (citations omitted).

8

mental/emotional impairment, care must be taken to obtain a precise description
of the particular job duties which are likely to produce tension and anxiety ... in
order to determine if the claimant's mental impairment is compatible with the
performance of such work.” Id. at *3. ALJs are required to make “every effort ...
to secure evidence that resolves the issue as clearly and explicitly as
circumstances permit.” Id.
Social Security Ruling 82–61 recognizes three possible tests for
determining whether or not a claimant retains the capacity to perform her past
relevant work. They are as follows:
1.
Whether the claimant retains the capacity to perform
a past relevant job based on a broad generic, occupational
classification of that job, e.g., “delivery job,” “packaging job,” etc.7
2.
Whether the claimant retains the capacity to perform
the particular functional demands and job duties peculiar to an
individual job as he or she actually performed it.
3.
Whether the claimant retains the capacity to perform
the functional demands and job duties of the job as ordinarily
required by employers throughout the national economy.8
Id. Under § 404.1520(e) of the Commissioner’s regulations, a claimant will be
found to be “not disabled” when it is determined that she retains the residual
functional capacity to perform the actual functional demands and job duties of a
particular past relevant job or the functional demands and job duties of the

7

As recognized in the ruling, use of this test is likely to be “fallacious and
insupportable” because “[w]hile ‘delivery jobs,’ ‘packaging jobs,’ etc., may have a
common characteristic, they often involve quite different functional demands and duties
requiring varying abilities and job knowledge.”

8

The Dictionary of Occupational Titles’ descriptions can be relied upon to define
the job as it is usually performed in the national economy.

9

occupation as generally required by employers throughout the national
economy. Id.
At step 4, the initial issue to be resolved by the ALJ is the question of
whether the claimant retains the ability, given her limitations, to perform her
past relevant work as it was actually performed. SSR 96-8p (“At step 4 of the
sequential evaluation process, the RFC must not be expressed initially in terms of
the exertional categories of ‘sedentary,’ ‘light,’ ‘medium,’ ‘heavy,’ and ‘very
heavy’ work because the first consideration at this step is whether the individual
can do past relevant work as he or she actually performed it.”); 1996 WL 374184,
at *3. Claimants are considered the primary sources for this vocational
information, and “statements by the claimant regarding past work are generally
sufficient for determining the skill level, exertional demands and nonexertional
demands of such work.” SSR 82-62 at *3. As additional sources, ALJs are also
given the discretion to obtain vocational information from a VE or the Dictionary
of Occupational Titles (“DOT”) in aid of resolving the question of whether
claimants are able to actually perform the duties of their prior jobs. 20 C.F.R. §§
404.1560(b)(2), 416.960(b)(2); SSR 82–61.
If the ALJ determines that the claimant lacks the RFC to complete the tasks
and duties of her former jobs as they were actually performed, the next issue at
the fourth step becomes whether she would be able to perform her former jobs as
they were generally performed in the national economy. SSR 96-8p. The sources
generally consulted to obtain evidence that will assist in resolving this issue are
the DOT and the testimony of a VE. If the testimony of the VE is contradicted by
the DOT, the VE's testimony trumps the DOT. Jones v. Commissioner of Social Sec.,

10

423 Fed.Appx. 936, 938 (11th Cir. Apr. 19, 2011), citing Jones v. Apfel, 190 F.3d
1224, 1229-1230 (11th Cir. 1999).
In this action, the initial inquiry of whether the Claimant was able to
perform the duties of her prior job as it was actually performed was skipped or
omitted from the ALJ’s analysis. Instead, after an RFC was established and the
VE had classified the Plaintiff’s prior jobs within the DOT, the ALJ found that she
was able to perform the job of bookkeeper as it was described in DOT Code
210.382-014. (Tr. 23).9 The VE was not asked whether the Plaintiff would be able
to perform the bookkeeper job she identified in light of the limitations imposed
by her RFC, nor was any explanation given as to why the Plaintiff was not able to
perform any of the other jobs identified by the VE.
The Plaintiff was asked to provide vocational information about her prior
work and her reasons for not being able to perform any of the prior jobs she
listed. Some of the information came from forms that she completed and filed
with the Commissioner and the rest was provided through her testimony. The
claimant testified on two occasions: October 31, 2012 (Tr. 43-65) and April 10,
2013 (Tr. 29-42). During her testimony on October 31, 2012, she reported a
variety of work that she had performed in the past. The list includes data entry,
minor accounting, dealing blackjack at a casino, answering phones, helping with
corporate paperwork, making payroll, supervising other employees and
9

Although the VE identified several job classifications in response to the ALJ’s
question of whether she was “able to match it up with any work that appears in the
Dictionary of Occupational Titles[,]” the only job the ALJ found that Mrs. DiSalvatore
was able to perform was that of a bookkeeper. In addition to bookkeeper, the other
former jobs were identified as: data entry, DOT number 203.582-054, sedentary, semiskilled, SVP 4; gambling dealer, DOT number 343.464-010, light, semi-skilled, SVP 3;
telephone solicitor, DOT number 299.357-014, sedentary, semi-skilled, SVP 3; and
receptionist, DOT number 237.367-038, sedentary, semi-skilled, SVP 4. (Tr. 23).

11

scheduling. During the hearing held on April 10, 2013, upon additional
questioning by the ALJ regarding her prior occupations, she reported working
for Ken Chatfield and Jennifer Chatfield with duties of “answering phones”,
“doing some of – some more corporate paperwork like kind of accounting” and
ultimately she was responsible for “more of the managerial paperwork” and
supervising “the girls answering the phones … like doing scheduling and stuff.”
(Id. at 35).10
In response to the ALJ’s question of why she felt she could no longer
perform the tasks required in her former jobs, she identified the stress that
overwhelmed her and told him how desperately she wanted to be relieved of
any responsibility of speaking with or dealing with the public. (Id. at 36). She also
testified that the Chatfields attempted to work with her by taking away any
responsibility for answering the phones and allowing her to focus on paperwork
and supervision of the girls on staff. (Id. at 36-37). Eventually, the Chatfields sold
the business to the claimant and her husband and she assumed the accounting
duties but found that working at the office was too stressful and was allowed to
work from home where there were “no girls, no phones, no nothing.” (Id. at 37).
Her testimony was that even after trying to work from home, she failed because
she was “foggy-brained” and “became like a zombie.” (Id. at 37-38). Her
testimony was that she could not handle working in her former jobs or
completing her home chores because “the smallest things freak [her] out.” (Id.)
The Plaintiff also identified her IBS condition as a contributor to stress in the
10

The Work History Report dated May 22, 2011 (Tr. 469) listed jobs of bookkeeper,
receptionist, call center representative, blackjack/roulette dealer, cashier, data entry
clerk, and office temp (id. at 470). She also completed a work background report that
was included in the record (see Tr. 511-514).

12

workplace that was made a “little worse” after several changes had been made to
her medication. (Id. at 39).
Since all the Plaintiff’s testimony regarding her prior jobs and the physical
and mental demands of those jobs were not discussed by the ALJ, it is difficult to
discern what his findings were with regard to Plaintiff’s ability to perform a
prior job as it was actually performed. From the opinion, it is clear that the ALJ
ruled out all former jobs except for that of bookkeeper. In addition, since the ALJ
did not discuss or identify the specific job requirements, both physical and
mental, of her former work as a bookkeeper, it appears that he determined that
she could not perform those duties because of the significant work-related
limitations and moved to the next question of whether she could perform the job
of bookkeeper as generally required in the national economy.
In reaching the conclusion that the Plaintiff could perform the duties of a
bookkeeper as generally required, the ALJ first determined that Mrs.
DiSalvatore’s ability to perform the full range of sedentary work was limited by
her mental RFC and non-exertional impairments. (Tr. 20 (“The claimant has the
residual functional capacity to perform sedentary work … except the claimant is
limited to work which will only require the claimant to: … frequently reach,
handle, finger, feel, push, and pull; frequently operate foot controls; occasionally
climb ladders or scaffolds; frequently climb stairs and ramps; frequently balance,
stoop, knee[l], crouch, and crawl; never work around unprotected heights,
humidity, wetness, dust, odors, fumes, and pulmonary irritants; occasionally
work around moving mechanical parts, extreme temperatures and vibrations;
frequently operate a motor vehicle; and occasionally interact with the general
public and supervisors.”)). When the ALJ compared the Plaintiff’s limitations
13

with the work demands of a bookkeeper as delineated in the DOT, he found that
she would be able to perform the duties of a bookkeeper. This important finding
was made, however, without asking the VE, who was available during the
hearing, if Mrs. DiSalvatore would be able to perform the general duties of a
bookkeeper given the specific limitation of only being able to occasionally
interact with the general public and her supervisors. Since the DOT description
of duties does not specifically account for this limitation, and the record does not
contain any evidence that would support the conclusion that bookkeeper jobs in
the national economy would be available to an applicant with this particular
mental/emotional limitation, the finding by the ALJ is without evidentiary
support.
The clear failure of the ALJ to carefully explore the physical and mental
requirements of the Claimant’s former work as a bookkeeper and further, to
complete the record with vocational evidence that the DOT classification of
bookkeeper would be available for people with Claimant’s specific RFC,
prevents this Court from being able to find that substantial evidence is contained
in this record to support the conclusion that the Plaintiff is able to perform the
job of bookkeeper as required in the national economy. A remand is necessary so
that the Commissioner will have an opportunity to identify the actual physical
and mental requirements of Plaintiff’s former work as a bookkeeper and whether
she is able to return to that job. A remand will also allow the Commissioner an
opportunity to fill the void of evidence supporting the conclusion that a plaintiff
with this RFC would be employable as a bookkeeper generally. Cf. Waldrop,
supra, 379 Fed.Appx. at 952–53 (ALJ’s decision affirmed where VE provided both
the DOT identification number for a former position and testimony that
14

demonstrated that the claimant could perform the identified job as it is performed in the
general economy even with the limitations identified in the RFC).
B. Whether Plaintiff’s Former Work as a Bookkeeper Constitutes Past
Relevant Work.
Past relevant work is work that the claimant (1) performed within the last
fifteen years, (2) lasted long enough for the claimant to learn how to do the work,
and (3) was performed at the level of substantial gainful activity. 20 C.F.R. §§
404.1565(a), 416.965(a). “Substantial work activity” is work that involves doing
significant physical or mental activities and includes part-time work. 20 C.F.R. §§
404.1572(a), 416.972(a). “Gainful work activity” is work activity done for pay or
profit. 20 C.F.R. §§ 404.1572(b), 416.972(b). To determine whether a claimant
performed substantial gainful activity, the ALJ ordinarily will consider whether
wages derived from the work activity exceed minimum thresholds. 20 C.F.R. §§
404.1574(b), 416.974(b). “If a claimant receives wages exceeding those set out in
an earnings guidelines table, a presumption arises that she was engaged in
substantial gainful activity during that period.” Green v. Commissioner, Social Sec.
Admin., 555 Fed.Appx. 906, 908 (11th Cir. Feb. 10, 2014), citing 20 C.F.R. §§
404.1574(b)(2); 416.974(b)(2); and Johnson v. Sullivan, 929 F.2d 596, 598 (11th Cir.
1991) (noting that earnings on income tax returns create a rebuttable
presumption that the taxpayer was gainfully employed).
If the prior work was performed under special conditions, however, those
conditions must be considered and may lead to a finding that the claimant’s

15

prior work was not substantial gainful activity. 20 C.F.R. §§ 404.1573(c),
416.973(c).11
The Commissioner relies on certain guides to determine if
the claimant is engaged in substantial gainful activity, including the
nature of the claimant's work, how well she performed, how much
time she spent at work, and whether her work was done under
special conditions or in a sheltered workshop. Id. §§ 404.1573;
416.973. Special work conditions may consist of receiving assistance
from other employees, permission to take frequent rest breaks, and
permission to work at a lower standard of productivity. 20 C.F.R.
§§ 404.1573(c); 416.973(c). Importantly, however, work done under
special conditions can still constitute substantial gainful activity.
See 20 C.F.R. §§ 404.1573(c); 404.1574(a)(1), (a)(3), (b)(2); 416.973(c),
416.974(a)(1), (a)(3), (b)(2).
Green, 555 Fed.Appx. at 908.
11

These sections of the Commissioner’s regulations read, in their entirety, as

follows:
The work you are doing may be done under special conditions that take
into account your impairment, such as work done in a sheltered
workshop or as a patient in a hospital. If your work is done under
special conditions, we may find that it does not show that you have the
ability to do substantial gainful activity. Also, if you are forced to stop
or reduce your work because of the removal of special conditions that
were related to your impairment and essential to your work, we may find
that your work does not show that you are able to do substantial gainful
activity. However, work done under special conditions may show that
you have the necessary skills and ability to work at the substantial gainful
activity level. Examples of the special conditions that may relate to your
impairment include, but are not limited to, situations in which—
(1) You required and received special assistance from other
employees in performing your work;
(2) You were allowed to work irregular hours or take frequent rest
periods;
(3) You were provided with special equipment or were assigned
work especially suited to your impairment;
(4) You were able to work only because of specially arranged
circumstances, for example, other persons helped you prepare for or get
to and from your work;
(5) You were permitted to work at a lower standard of
productivity or efficiency than other employees; or
(6) You were given the opportunity to work, despite your
impairment, because of family relationship, past association with your
employer, or your employer's concern for your welfare.
Id. (emphasis supplied).

16

As previously stated, the ALJ found that plaintiff was not disabled
because she could perform her past relevant work as a bookkeeper as it is
generally performed (Tr. 23 (“The claimant is capable of performing past
relevant work as a bookkeeper (DOT Code 210.382-014), which is a sedentary,
skilled occupation.”)). Plaintiff argues, however, that the ALJ erred when he
determined that her past work as a bookkeeper was relevant work because it was
performed under special circumstances due to her severe limitations. In this
regard, even though the ALJ did ask a vocational expert to “match up” Plaintiff’s
prior work experiences with DOT titles, exertional levels and SVP numbers, there
were no questions asked about whether she was working under special
circumstances, i.e., receiving an unspecified subsidy from her employers during
the period of time that she served as his bookkeeper. (See Tr. 64-65). In fact, there
is no analysis by the ALJ regarding the possibility that there was a discrepancy
between the actual work performed by the Plaintiff and the salary paid to her by
her employers. Plaintiff’s testimony was that she was unable to work in the office
of the carpet and air duct cleaning business because of her problems with
interacting with the public, her inability to handle the stress involved, and
because confrontations with customers led to migraine headaches. (Tr. 52-54).
The Commissioner’s response to this argument is to take the position that
since the ALJ found that the Plaintiff’s testimony was not fully credible, her
testimony regarding the special work conditions established by her husband was
also discredited, although the ALJ never says that he did not believe that portion
of her testimony. Secondly, the Commissioner argues that Plaintiff’s position
that the ALJ should have ensured that the record accurately recorded the
conditions under which she worked as a bookkeeper is misdirected because it
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was her burden to show that the actual productive work as a bookkeeper was not
substantial gainful employment because of the special conditions granted her
because of her physical and mental impairments.
A review of the record reveals that Plaintiff reported working as a
bookkeeper from 2006 through 2009 with three different companies. These
companies were all engaged in the business of cleaning carpets and air ducts.
The companies were KenJen Enterprises, Inc., (2006-2007), Best Care Services
Incorporated (2008), and Priority Carpet & Air Duct Cleaning Specialists, Inc.
(2009). (Tr. 178-180 & 470-473).
Plaintiff testified that her work duties for KenJen Enterprises began with
answering phones and performing accounting for the corporation. (Tr. 35-36).
These duties expanded to include managerial paperwork, supervising others
charged with answering the phones, and scheduling. (Id. at 36). These
responsibilities, according to the Claimant’s testimony, became “overwhelming”
because of her inability to “deal with people.” (Id.) She also testified that during
this term of employment, her employer worked with her to accommodate her
anxiety over dealing with other people by allowing her to stop answering phones
and focus on supervising the other office staff and to take on additional
responsibilities involving completion of paperwork. (Id. at 36-37).
Plaintiff and her husband, Luciano DiSalvatore, Jr., then purchased the
business from KenJen and established a new company, Best Care Services. (See id.
at 37). Plaintiff took over the accounting responsibilities for this new business.
(Id.) Her problems with this work continued, however, requiring that she
perform her duties from home but even that change failed because she became so

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“foggy-brained” that she could not work and they were forced to start hiring
people. She testified that she felt like a “zombie.” (Id. at 37-38).
Plaintiff and her husband then tried another business, Priority, but she
was not able to work, either business-related tasks or her chores at home. (See id.
at 38). After her husband’s sudden death, she was unable to continue the
business and was losing her home. (See id. at 47). So, she moved in with a relative
and now lives with a male friend who provides for her support. (See id.)
Although it is clear that the ALJ discredited that portion of Plaintiff’s
testimony regarding the severity of her impairments and their limitations on her
ability to be gainfully employed, there is no specific rejection of her testimony
that she was allowed to work as a bookkeeper under special conditions. (See Tr.
20-23). The Plaintiff’s evidence, both documentary and testimonial, supports her
position that she has arguably rebutted the presumption that she was engaged in
substantial gainful employment from 2006 to 2009 because that work was
performed under special conditions, i.e. her work requirements were changed to
alleviate stress, her employers allowed irregular work hours, assigned work
thought to be suited to her problems with stress and anxiety, allowed her to
work from home, expected less from her than other employees and eventually
hired others to do her work. While the Court is confident that the evidence of
the Plaintiff’s earnings in this case raises a rebuttable presumption that she was
gainfully employed as a bookkeeper, without an analysis of the evidence she
presented that she was working under special conditions and that her earnings
should have been adjusted downward, the record does not provide substantial
evidence to support the implicit findings of the ALJ that even if Plaintiff worked
under the special conditions she described, her prior work as a bookkeeper was
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performed at a level of substantial gainful employment, thus meeting the criteria
for past relevant work.
On remand, the Commissioner will have an opportunity to consider this
argument by the Plaintiff in greater detail.
III. Conclusion
The Court ORDERS that the decision of the Commissioner of Social
Security denying plaintiff benefits be reversed and remanded pursuant to
sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115
L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The
remand pursuant to sentence four of § 405(g) makes plaintiff a prevailing party
for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v.
Schaefer, 509 U.S. 292, 112 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this
Court’s jurisdiction over this matter.
DONE and ORDERED this the 19th day of September, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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