Edwards v. Astrue

Filing 22

Order entered that the decision of the Commissioner of SocialSecurity, denying Plaintiffs claim for a period of disability,disability insurance benefits, and supplemental security incomebe AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/21/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JESSE JAMES EDWARDS, JR.,

*
*
*
*
*
*
*
*
*
*

Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

CIVIL ACTION 11-00472-B

ORDER
Plaintiff

Jesse

James

Edwards,

Jr.

(“Plaintiff”)

brings

this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his 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 June 11,

2012, the parties consented to have the undersigned conduct any
and all proceedings in this case. (Doc. 19).

Thus, this case

was

all

referred

to

the

undersigned

to

conduct

proceedings

through entry of judgment in accordance with 28 U.S.C. § 636(c)
and Fed. R. Civ. P. 73. (Doc. 21).

Oral argument was waived.

Upon careful consideration of the administrative record and the
memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.

1

I.

Procedural History
Plaintiff protectively filed an application for disability

insurance benefits and for supplemental security income benefits
on March 9, 2009. (Tr. 152-60). In his applications, Plaintiff
alleges that he has been disabled since September 25, 2008, due
to eye, leg, and breathing problems, a hernia, and acid reflux.
(Id. at 86, 92, 154, 187). Plaintiff’s applications were denied
initially, and he timely filed a Request for Hearing. (Id. at
87-91, 93-99). On September 29, 2010, Plaintiff, his attorney,
and

a

vocational

hearing

before

expert

(“VE”)

Administrative

(hereinafter “ALJ”).

attended

Law

(Id. at 55-78).

Judge

an

administrative

Vincent

Intoccia

On November 2, 2010, the

ALJ issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id. at 13-27).

Plaintiff’s request for review was

denied by the Appeals Council (“AC”) on June 24, 2011.

(Id. at

1-6, 11).
The parties agree that this case is now ripe for judicial
review and is properly before this Court pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
A.

Whether substantial evidence supports the
ALJ’s RFC assessment?

B.

Whether the ALJ erred in finding that
Plaintiff can return to his past relevant
work as a short order cook?

2

III. Factual Background
Plaintiff was born on January 30, 1951, and was fifty-nine
(59) years of age at the time of the administrative hearing.
(Tr. 57, 79, 80).
two

years

of

He graduated from high school and completed

college.

(Id.

at

57,

236).

Plaintiff

has

past

relevant work (“PRW”) as a fast food cook, construction worker,
driver, and builder/carpenter.
Plaintiff

testified

(Id. at 75, 208, 214, 220, 236).

that

he

has

problems

with

his

shoulders, that his right shoulder is worst than the left, and
that on average, his shoulder pain is a seven out of ten and is
more

severe

on

rainy

days.

(Id.

at

60,

62).

Plaintiff

also

testified that he has low back pain which flares up if he sits
for prolonged periods.

(Id. at 62). According to Plaintiff, his

back pain averages a seven on a pain scale of one to ten, and is
more

severe

on

rainy

days.

(Id.

at

63-64).

According

to

Plaintiff, he does not have health insurance and cannot afford
to purchase any prescription medication for his pain; thus, he
takes ibuprofen for his pain. (Id. at 60-61)1.

Plaintiff also

testified that he had surgery for a hernia in 2009, and that he

1

According to Plaintiff he has been turned away from the
emergency room on two occasions because of outstanding medical
bills, and United Way’s “Doc in a Bus” will no longer see him
because he is pursuing disability. (Id. at 67-68).

3

still experiences soreness and tenderness, especially when he
attempts to lift certain objects. (Id. at 66).
With respect to his daily activities, Plaintiff testified
that he is able to care for his personal needs, and do some
laundry, cooking, and other limited household chores, but he has
to take breaks because he cannot stand for long periods of time.
(Id. at 68-69, 207, 209).

According to Plaintiff, he spends

most of his time at home watching TV, although he does sing in
the choir and attend church once a month.
IV.

(Id. at 69-70).

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).2

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.

2

must

be

Brown v.

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).
4

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
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
(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits must prove his disability.
416.912.
substantial

20 C.F.R.

§§ 404.1512,

Disability is defined as the “inability to do any
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 months.”
42 U.S.C. §§ 423(d)(1)(A), 404.1505(a), 416.905(a).

The Social

Security regulations provide a five-step sequential evaluation

5

process for determining if a claimant has proven her disability.
20 C.F.R. §§ 404.1520, 416.920.3
In the case sub judice, the ALJ determined that Plaintiff
met

the

non-disability

requirements

benefits through December 31, 2010.

for

disability

insurance

(Tr. 18). The ALJ found

that Plaintiff has not engaged in substantial gainful activity
since his alleged onset date.

(Id.).

The ALJ concluded that

while Plaintiff has the severe impairments of arthritis of the

3

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 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; (4) the claimant’s
age, education and work history. Id. at 1005. 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 (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

right shoulder, status post right inguinal hernia surgery, and
hypertension, they do not meet or medically equal the criteria
for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt.
P, App. 1, Regulations No. 4.4
The

ALJ

concluded

that

(Id. at 18-19).
Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a full range
of light work.

(Id. at 21).

The ALJ found that Plaintiff can

lift 20 pounds occasionally and 10 pounds frequently, that he
can stand, walk, and sit for 6 out of 8 hours, that he can
frequently use his right upper extremity to push and pull, that
he can occasionally climb ramps and stairs, crouch, crawl, and
stoop,

that

he

can

frequently

frequently

reach

in

all

extremity.

(Id.

at

21-22).

balance,

directions
The

and

with

ALJ

also

his

that

he

right

can
upper

determined

that

Plaintiff should be precluded from climbing ladders, ropes, and
scaffolds, that he should avoid concentrated exposure to extreme
cold,

wetness,

and

vibration,

and

that

he

should

avoid

exposure to hazardous machinery and unprotected heights.

any

(Id.).

The ALJ next determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce

4

The ALJ also determined that Plaintiff’s vision problems,
back pain, cataracts, and/or GERD do not constitute severe
impairments. Plaintiff has not challenged this finding. (Id. at
19).

7

some

of

the

intensity,

alleged

symptoms,

persistence

and

his

statements

limiting

effects

concerning
of

the

the

alleged

symptoms were not credible to the extent they are inconsistent
with the RFC assessment.

(Id. at 23). The ALJ utilized the

services

expert

Plaintiff

of

a

is

vocational
capable

of

(“VE”)

performing

and

his

past

determined

that

relevant

work

(hereinafter “PRW”) as a short order cook, which is classified
as light and semiskilled.

(Id. at 24, 75).

The ALJ found that,

comparing Plaintiff’s RFC with the physical and mental demands
of his PRW, Plaintiff is able to perform his PRW. (Id. at 24).
Thus, he concluded that Plaintiff is not disabled. (Id.)
The relevant evidence of record reflects that Plaintiff was
examined by Dr. Dixitkumar Modi for a disability evaluation on
July 2, 2008. (Id. at 235-50). Plaintiff reported that he has
lower

back

pain,

which

moves

down

to

his

lower

legs

extremities, right shoulder pain, and right scrotal pain.
at 236).

and
(Id.

An examination of Plaintiff’s abdomen showed inguinal

hernia and scrotal hernia on the right that was not reducible.
(Id. at 238).

A neurological exam was normal, and no cyanosis,

clubbing, edema, or rash was observed over his upper or lower
extremities.
and

left

(Id.).

upper

Plaintiff’s range of motion in his lower

extremities

was

normal.

(Id.

at

239).

Tenderness on palpation of Plaintiff’s lumbar spine was noted,
and Plaintiff’s straight leg raise test was positive.
8

(Id.).

Plaintiff was seen by Dr. Bruce Edward Taylor on September
12, 2008.

An x-ray of Plaintiff’s right shoulder revealed mild

arthritis.

(Id. at 251-52, 261-64).

The record also contains

treatment notes from the United Way Family “Doc-in-a-Bus”.5

(Id.

at

that

265-76).

The

notes,

dated

March

27,

2009,

reflect

Plaintiff reported that he was experiencing back pain, and pain
all over his body, insomnia and stomach trouble.

(Id. at 273).

Plaintiff was diagnosed with right side inguinal hernia and was
counseled regarding surgical options. (Id.). Plaintiff indicated
that

he

could

insurance.

not

afford

surgery

due

to

lack

of

health

(Id.).

Plaintiff was evaluated by Dr. Vivekananda Datla at UAB
Selma Family Medicine Center on May 7, 2009.

(Id. at 277-84).

Plaintiff presented to with complaints of eye problems, hernia,
leg pains, and bilateral shoulder pain.
a right

(Id. at 277).

On exam,

inguinal hernia was noted, as was an enlarged scrotum

on the right side.

(Id.).

Plaintiff’s muscle tone and strength

were noted as normal, his motor strength was symmetrical with no
obvious

weaknesses,

dysfunction.

and

(Id. at 278).

a

motor

exam

demonstrated

no

Plaintiff was able to stand on

heels and toes without difficulty.
5

(Id. at 279).

He exhibited

The record includes a “Doc-in-a-Bus” New Patient Intake
Assessment for Plaintiff that is dated February 2, 2009. (Tr.
274).

9

full range of motion in his arms, hands, and fingers.

(Id.).

Plaintiff’s gait, balance and stance, and reflexes were normal.
(Id.).

Plaintiff was able to squat and rise with difficulty,

but

was

he

unable

to

heel/toe

walk.

(Id.).

Plaintiff’s

cervical and lumbar spines showed no tenderness on palpation,
instability, or weakness.

(Id.).

The notes reflect that an

examination of Plaintiff’s eyes on that same date revealed that
Plaintiff’s left eye vision was 20/50, and his right eye vision
was 20/40.

(Id. at 281).

Agency medical consultant A.G. Turner completed a Physical
RFC

Assessment

on

May

14,

2009,

wherein

he

indicated

that

Plaintiff has mild arthritis in the right shoulder and right
inguinal hernia. (Id. at 285). He opined that Plaintiff could
occasionally lift 50 pounds, frequently lift 25 pounds, stand
and/or walk about 6 hours in an 8-hour workday, sit about 6
hours

in

an

8-hour

workday,

unlimited amount of time.

and

push

and/or

(Id. at 286).

pull

for

an

He determined that

Plaintiff could never climb ladders, ropes, or scaffolds, and
could frequently climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl.
handling

(gross

(Id. at 287).

manipulation),

Plaintiff was limited in

fingering

(fine

manipulation),

and feeling (skin receptors), but was unlimited in reaching in
all directions, including overhead.

(Id. at 288).

Plaintiff was limited in near and far acuity.
10

(Id.).

Visually,
He opined

that Plaintiff should
machinery

and

avoid all exposure to

unprotected

exposure to extreme cold.

heights

and

(Id. at 289).

Plaintiff had no communicative limitations.

hazards such as

avoid

concentrated

According to the RFC,
(Id.).

Included in the record are treatment notes from

Vaughn

Regional Medical Center Emergency Department dated September 20,
22, and 28, 2009.

(Id. at 293-324). The notes reflect that on

September 20, 2009, Plaintiff reported increasing abdominal pain
burning in the right groin, and strange noises from the right
groin area.

(Id. at 303).

A CT scan of Plaintiff’s abdomen on

September 20, 2009, showed a whorled appearance to bowel loops
in the right lower quadrant.

(Id. at 318).

Aside from that,

the abdomen was otherwise normal in appearance.

(Id.).

A CT

scan of Plaintiff’s pelvis on the same date revealed a very
large scrotal hernia containing multiple loops of small bowel.
(Id. at 318-321).

Plaintiff was referred to Dr. Harold Allen

Foster by the emergency room physician due to the large right
inguinal hernia. Dr. Foster performed surgery on September 22,
2009.

(Id. at 307-308).

Plaintiff returned to the emergency

room on September 28 and reported scrotal pain and swelling.
(Id. at 295).

On exam, scrotal swelling on the right was noted.

Plaintiff had normal range of motion in his extremities, and no
tenderness or edema was noted.

(Id. at 297).

11

After being given

Demerol, Plaintiff reported improvement in his pain, and was
directed to follow up with Dr. Foster. (Id. at 294-301).6
1.

Whether substantial evidence
the ALJ’s RFC assessment?

Plaintiff

argues

that

the

ALJ’s

supports

finding

that

Plaintiff

retained the RFC to perform a full range of light work is not
supported by substantial evidence because it was not based on
the opinion of a treating or examining physician. In support of
his argument, Plaintiff cites Coleman v. Barnhart, 264 F. Supp.
2d 1007 (S.D. Ala. 2003).

Plaintiff acknowledges that unlike

the

he

plaintiff

physicians,

in

but

Coleman,
argues

was

that

evaluated

neither

by

provided

consultative
an

opinion

regarding his RFC. Plaintiff further argues that the ALJ ignored
his testimony about his back pain and his diagnosis of lumbar
radiculopathy. (Doc. 13).
In

opposition,

the

Commissioner

counters

that

Plaintiff

bears the burden of proving disability and of providing evidence
to be used in RFC assessments. Defendant further asserts that
RFC determinations are the province of the ALJ and are based on
all relevant evidence and not just medical evidence. Defendant

6

The record also contains two physical assessments;
however, the ALJ did not analyze them because they were prepared
by single decision makers. (Tr. at 22). Both opined that
Plaintiff can occasionally lift 50 pounds and can frequently
lift 25 pounds.

12

also

asserts

that

the

ALJ’s

RFC

assessment

is

supported

by

objective evidence in the record. (Doc. 16).
Extant case law provides that an ALJ has a duty to develop
the record fully and fairly.

See, e.g., Wilson v. Apfel, 179 F.

3d 1276, 1278 (llth Cir. 1999)(citing Graham v. Apfel, 129 F. 3d
1420, 1422-1423 (llth Cir. 1997).

The ALJ is bound to make

every

all

reasonable

necessary

to

make

effort
a

to

obtain

determination,

20

the

medical

C.F.R.

§

evidence

416.912(d);

however, he is not charged with making Plaintiff's case for him.
Plaintiff has the burden of proving that he is disabled. See 20
C.R.R. § 416.912(a) and (c).

See also Hale v. Bowen, 831 F.2d

1007, 1011 (llth Cir. 1987).
The responsibility for determining a plaintiff’s RFC7 lies
with the ALJ and is based on all of the evidence of record. See
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (ALJ
has duty to assess the residual functional capacity on the basis
of all the relevant credible evidence of record); 20 C.F.R. §§
404.1546, 416.946

(responsibility for determining a claimant’s

7

“Residual functional capacity, or RFC, is a medical
assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the
claimant’s impairments and related symptoms. 20 C.F.R. §
416.945(a).”
Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2
(11th Cir. 2010). The assessment considers the claimant’s
ability to lift weight, sit, stand, push, and pull, among other
tasks. 20 C.F.R. § 404-1545(b).

13

residual functional capacity lies with the ALJ). See also Foxx
v. Astrue, 2009 U.S. Dist. LEXIS 80307, *17 (S.D. Ala. Sept. 3,
2009)(“The RFC assessment must be based on all of the relevant
evidence in the case such as: medical history, medical signs and
laboratory findings, the effects of treatment, reports of daily
activities,

lay

evidence,

recorded

source statements.”), citing

observations,

and

medical

SSR 96-8p, 1996 SSR LEXIS 5.

As noted, in the case at hand, the ALJ, after reviewing the
medical

evidence

and

other

evidence

of

record,

set

Plaintiff’s RFC as follows:
After careful consideration of the entire
record, the undersigned finds that the
claimant
has
the
residual
functional
capacity to perform the full range of light
work as defined in 20 CFR 404.1567(b) and
416.967(b) except that on a function-byfunction basis, the claimant is able to
occasionally lift 20 pounds and frequently
lift 10 pounds. He could stand, walk, and
sit about six hours during an eight hour
workday. He could frequently use the right
upper extremity to push and pull. He could
occasionally climb ramps and stairs, crouch,
crawl,
and
stoop.
He
could
frequently
balance. He would be precluded from climbing
ladders, ropes and scaffolds. He could
frequently reach in all directions with the
right upper extremity. He should avoid
concentrated
exposure
to
extreme
cold,
wetness, and vibration. He should avoid any
exposure
to
hazardous
machinery
and
unprotected heights.
(Tr. 22).

14

forth

In making his determination that Plaintiff could perform
the full range of light work8, the ALJ carefully considered the
opinions of consulting physicians, Drs. Datla and Modi, and the
other evidence of record.
with

lumbar

radiculopathy,

While Dr. Modi diagnosed Plaintiff
and

noted

some

tenderness

on

palpation of Plaintiff’s lumbar spine and a positive straight
leg test, he found that Plaintiff’s range of motion in his lower
and upper extremities was normal.
consultative

exam

of

Plaintiff,

Further, during Dr. Datla’s
he

found

that

Plaintiff

exhibited a full range of motion in his arms, and fingers, and
that his cervical and lumbar spines showed no instability or
8

Light work, as defined by SSR 83-10, is as follows:
[L]ifting no more than 20 pounds at a time
with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the
weight lifted in a particular light job may
be very little, a job is in this category
when it requires a good deal of walking or
standing -- the primary difference between
sedentary and most light jobs. A job is also
in this category when it involves sitting
most of the time but with some pushing and
pulling of arm-hand or leg-foot controls,
which require greater exertion than in
sedentary
work;
e.g.,
mattress
sewing
machine operator, motor-grader operator, and
road-roller
operator
(skilled
and
semiskilled
jobs
in
these
particular
instances). Relatively few unskilled light
jobs are performed in a seated position.

http://www.ssa.gov/OP_Home/rulings/di/02/SSR83-10-di-02.html.

15

weakness.

Additionally,

while

Plaintiff

was

diagnosed

with

right side inguinal hernia in 2009, the record reveals that it
was surgically repaired. Also, an x-ray of Plaintiff’s right
shoulder

revealed

mild

arthritis.

Thus,

while

Plaintiff

challenges the ALJ’s RFC determination, he has not pointed to
any medical evidence that suggests that the ALJ’s RFC assessment
is incorrect.
Indeed, the ALJ’s decision reflects that he considered the
medical evidence and Plaintiff’s allegations of disabling pain,
but found that the medical records do not support the level of
pain alleged, and that Plaintiff does not have any neurological
deficits or muscle atrophy generally associated with protracted
pain at a severe level.

The ALJ further found as implausible

the notion that Plaintiff would have been suffering from the
disabling degree of pain as alleged, and would not have tried to
access medical care on a regular and/or continual basis through
a

community

services.

health

clinic

or

through

hospital

emergency

Accordingly, the undersigned finds, based upon the

record before the Court, that the ALJ’s RFC determination is
supported

by

substantial

evidence,

including

the

medical

evidence of record. Thus, the absence of a physical assessment
by a medical professional does not require reversal under the
circumstances

of

this

case.

See

16

Green

v.

Social

Security

Administration, 223 Fed. Appx. 915, 923-24 (llth Cir. May 2,
2007)(per curiam).
2.

Whether the ALJ erred in finding that
Plaintiff’s work as a short order cook
rose to the level of substantial
gainful employment?

Plaintiff contends that the ALJ erred in finding that his
past work as a short order cook rose to the level of substantial
gainful

activity.

Specifically,

Plaintiff

argues

that

his

earnings from Mr. Waffle, where he worked as a short order cook,
were not sufficient to constitute substantial gainful activity.
Additionally, Plaintiff claims that he did not

work in that

position long enough to learn the necessary skills associated
with that work.
The Commissioner contends that Plaintiff has failed to meet
his burden of showing that he is not capable of performing his
past

work,

and

that

while

in

2004,

Plaintiff

$3,795.90 working as a cook at Mr. Waffle,

earned

only

Plaintiff’s earnings

as a cook prior to the job at Mr. Waffle, rose to the level of
substantial

gainful

activity.

In

addition,

the

Commissioner

argues that Plaintiff learned the required skills to complete
the work.

In support of these assertions, the Commissioner

points to Plaintiff’s “Work History Report,” wherein Plaintiff
asserts that he worked for Hemingway’s (Restaurant) from 19982000,

as

a

cook,

and

Plaintiff’s

17

earning

statement

which

reflects

earnings

from

Topsiders/Hemingway’s

in

2000

in

the

amount of $18,332.48.
The undersigned finds that Plaintiff’s argument is without
merit.

Past relevant work is "work that you have done within

the past 15 years, that was [SGA], and that lasted long enough
for

you

to

learn

to

do

it.”

20

C.F.R.

§

404.1560(b).

"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.”

20 C.F.R. § 404.1572.

“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."

Id.

Moreover:

[i]n evaluating whether the claimant's past
work is substantial gainful activity, the
ALJ's “primary consideration will be the
earnings [the claimant] derive[d] from the
work activity.”
20 C.F.R. § 416.974(a)(1).
Under the regulations' earnings guidelines,
a claimant's earnings (in 2001 and each year
thereafter) ordinarily will show that he
engaged in substantial gainful activity if
the earnings were more than the previous
year or the average monthly earnings were
more than $700, adjusted for changes in the
national average wage index.
See 20 C.F.R.
§ 416.974(b)(2)(i)-(ii), see also id. §
416.974a
(explaining
that
to
determine
whether a claimant is doing substantial
gainful activity, the ALJ will average
monthly earnings).

18

McCrea v. Astrue, 407 Fed. Appx. 394, 396 (llth Cir. 2011).

To

qualify as past relevant work in the disability determination
process, prior work preformed by a plaintiff 1) must have been
done within the last fifteen years, 2) must have been done long
enough for the plaintiff to learn to do it, and 3) it must
amount to substantial gainful activity.9

See Vaughn v. Heckler,

727 F.2d 1040, 1042 (11th Cir. 1984); 20 C.F.R. §§ 404.1565(a),
416.965(a).
In

this

case,

Plaintiff

testified

at

the

administrative

hearing that he is skilled in cooking, and he has worked in
various restaurants.

(Tr. 64, 73).

Plaintiff also completed a

work history report in which he stated that he worked as a cook
at

Hemingway’s

Restaurant

from

1998

to

1999.

(Id.

at

198).

Additionally, the earnings records are not the model of clarity;
however,

they

do

reflect

that

Plaintiff

worked

several

restaurant jobs prior to his disability onset date of September
25, 2008.

According to the records, Plaintiff was employed at a

number of restaurants, including Topsiders, Inc./ Hemingway’s in
9

A plaintiff’s work is presumed to be substantial gainful
activity if earnings averaged more than $500 a month from
January 1990 through June 1999, see Randolph v. Astrue, 2011
U.S. Dist. LEXIS 143916, *7-8 (M.D. Fla. Dec. 14, 2011), $700 a
month from July 1999 through December 2000, see McCrea v.
Astrue, 407 Fed. Appx. 394, 396 (11th Cir. 2011), and slightly
more for 2001 and so on. 20 C.F.R. §§ 404.1574(b)(2),
416.974(b)(2); see also https://secure.ssa.gov/apps10/poms.nsf/
lnx/0410501015 ($740 per month in 2001, $780 in 2002, $800 in
2003, and $810 for 2004).
19

1999, earning $929.11; Topsiders in 2000, earning $18,332.48;
and RJ Kelly/Tally Ho Restaurant in 2004, earning $751.50. (Tr.
169-71).
Based on this record evidence, the ALJ determined, after
consulting with a VE, that Plaintiff’s past work as a cook rose
to

the

level

of

substantial

gainful

employment

and

that

Plaintiff is capable of performing, and could return to, that
work.

(Tr. 24).

As noted above, a plaintiff’s work is presumed

to be substantial gainful activity if earnings averaged more
than $500 a month from January 1990 through June 1999, $700 a
month from July 1999 through December 2000, and slightly more
for 2001 and so on.
The

See footnote 9, supra.

undersigned

finds

that

supported by substantial evidence.
Plaintiff

worked

a

number

of

the

ALJ’s

determination

is

The record demonstrates that
cooking

jobs,

and

each

was

performed within fifteen years of Plaintiff’s alleged onset of
disability date.
2000

alone,

where

Taking Plaintiff’s employment at Topsiders in
he

earned

$18,332.48,

those

wages

average

$1,527.71 monthly, which is greater than the average monthly
allowance

for

presumed

substantial

activity

for

that

year.

Additionally, Plaintiff’s testimony, his work history report,
and the earning records establish that Plaintiff performed the
work of short order cook over a number of years; the work is of
sufficient duration.

In other words, Plaintiff worked in the
20

job long enough to learn to do it.

See SSR 82-62, 1982 SSR

LEXIS 27 (past relevant work exists when three conditions are
met: (1) the work was recent, i.e., it occurred within 15 years;
(2) the work was of sufficient duration, i.e., the claimant had
enough time to learn the skills needed for average performance
in the job; and (3) the work constituted substantial gainful
activity).

Accordingly, it is clear that Plaintiff’s earnings

as a cook, prior to his alleged disability onset date, exceeded
the monthly maximum set by Social Security regulations, and that
he worked as a cook long enough to acquire the necessary skills.
Thus, the ALJ did not err in finding that Plaintiff’s past work
as a cook rose to the level of substantial gainful employment.
V.

Conclusion

For the reasons set forth, 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 AFFIRMED.
DONE this 21st day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

21