Kirkwood v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The final decision of the Commissioner of Social Security denying plaintiff Marlene D. Kirkwood's application for Social Security Disability benefits is AFFIRMED. The Clerk shall enter judgment in favor of defendant and against plaintiff. Signed by Judge Philip P Simon on 8/20/2018. (Copy mailed to pro se party)(tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARLENE D. KIRKWOOD,

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Plaintiff,
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vs.
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NANCY BERRYHILL, Acting Commissioner )
of the Social Security Administration,
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Defendant.
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3:17CV750-PPS

OPINION AND ORDER
Marlene D. Kirkwood appeals the denial of her application for disability
insurance benefits by the Commissioner of the Social Security Administration.
Kirkwood was 47 years old on the date of she alleges she became disabled, January 1,
2011. The administrative law judge found that she had severe impairments of
degenerative disc disease of the lumbar spine, rheumatoid arthritis v. fibromyalgia v.
polyarthritis, and obesity. [AR at 13.]1 Kirkwood previously worked as a nurse
assistant and resident care aide. [AR at 22.] After a hearing at which Kirkwood
appeared and testified on October 31, 2016, the ALJ issued a written decision denying
Kirkwood’s claim for benefits on March 14, 2017. [AR 11-24.]
Kirkwood asks me to reverse the ALJ’s decision and remand for further
proceedings by the Social Security Administration. My review of the ALJ’s decision is

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The administrative record [AR] is found in the court record at docket entry 11, and consists
of 1365 pages. I will cite to the pages of this AR according to the Social Security Administration’s
Bates stamp numbers rather than the court’s Electronic Case Filing page number.

deferential. I must affirm it if it is supported by substantial evidence, meaning “‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citation omitted). I
can’t reweigh the evidence or substitute my judgment for that of the ALJ. Minnick v.
Colvin, 775 F.3d 929, 935 (7th Cir. 2015). But these standards do not mean that I “will
simply rubber-stamp the Commissioner’s decision without a critical review of the
evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Discussion
Unfortunately for Kirkwood, the analysis of her application for benefits does not
reach the stage of considering the impact of her severe impairments on her ability to
work. She was found not to qualify for disability before that step in the analysis. One
disqualification from disability benefits involves the concept of “substantial gainful
activity” or SGA. The statutory definition of “disability” includes the “inability to
engage in any substantial gainful activity....” 42 U.S.C. §423(d)(1)(A). The regulations
say it plainly: “If you are able to engage in substantial gainful activity, we will find that
you are not disabled.” 20 C.F.R. §404.1571; 20 C.F.R. §416.971.
The Social Security regulations define “substantial gainful activity” by specifying an
amount of earnings for each calendar year, and a person who is able to earn more than
that amount by working in that calendar year cannot be found to be disabled, unless
she shows that she maintained her job “only through extensive assistance or employer
charity.” Fischer v. Barnhart, 120 Fed.Appx. 297, at *5 (7th Cir. 2005). This rule applies to
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work “done during any period in which you believe you are disabled.” Id. See, e.g.,
Winters on behalf of Estate of Winters v. Berryhill, 721 Fed. Appx. 549 (7th Cir. 2018).
Kirkwood applied for benefits based on her claim that she became disabled as of
January 1, 2011. [AR at 216.] For calendar year 2013, SGA was set at a minimum of
$1040 per month in countable earnings. Soc. Sec. Admin. Program Operations Manual
Sys. (POMS) DI 10501.015(B). That is an annual income of $12,480 or more. The
administrative record contains a report of Kirkwood’s earnings for each year from 1996
to 2016. In 2013, Kirkwood earned $14,729.21, several thousand dollars more than the
SGA cut-off. [AR at 246.] The same record reflects that Kirkwood had SGA in 2011 as
well, when she earned $17,705.62. [Id.] The SGA limit for 2011 was $12,000. POMS DI
10501.015(B). Even after the ALJ’s explanation of her disqualification based on SGA
[AR at 13], Kirkwood offers no facts in an attempt to rebut the presumption of SGA
created by her earnings.
Kirkwood’s application for disability benefits was correctly denied, because she
was disqualified by having engaged in substantial gainful activity within the period of
years she claimed she was disabled. Because substantial evidence supported the ALJ’s
conclusion that Kirkwood was not disabled for Social Security purposes, I will affirm
the decision denying Kirkwood benefits.
Conclusion

My role is not to determine from scratch whether or not Kirkwood is disabled
and entitled to benefits. Instead, my review of the ALJ’s findings is deferential, to
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determine whether the ALJ applied the correct legal standards and whether the decision
is supported by substantial evidence. Shideler v. Astrue, 688 F.3d at 310; Castile v. Astrue,
617 F.3d 923, 926 (7th Cir. 2010); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
Because the evidence supports the Commissioner’s conclusion that Kirkwood does not
qualify for disability benefits for the period of time she alleged she was disabled, the
Commissioner’s final decision must be affirmed.
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff
Marlene D. Kirkwood’s application for Social Security Disability benefits is AFFIRMED.
The Clerk shall enter judgment in favor of defendant and against plaintiff.

SO ORDERED.
ENTERED: August 20, 2018.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE

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