Brown v. Social Security, Commissioner of
Filing
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ORDER granting 15 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (Chubb, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY BROWN,
v.
Plaintiff,
Case No. 13-13917
HON. TERRENCE G. BERG
CAROLYN W. COLVIN,
Defendant.
/
ORDER GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DKT. 15) AND DENYING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DKT. 17)
This is an action for judicial review of an adverse decision of the
Commissioner of Social Security brought pursuant to 42 U.S.C. § 405(g). Plaintiff
Timothy Brown (“Plaintiff”) seeks a reversal of the Commissioner’s decision that he
is not disabled and therefore not eligible for a period of disability and disability
benefits under Title II of the Social Security Act, and supplemental security income
(“SSI”) under Title XVI of the Social Security Act. Plaintiff contends that the
Administrative Law Judge (“ALJ”): (i) erred in concluding at step four of the
analysis that Plaintiff could return to his prior job as a fast food worker, and was
therefore not disabled, when that job never rose to the level of “substantial gainful
activity,” and thus was not “past relevant work;” (ii) erred by not recognizing the
full impact of Plaintiff’s mental impairments on his ability to work; and (iii) made
an improper credibility finding, that was not supported by substantial evidence.
This matter is before the Court on cross-motions for summary judgment. As
discussed below, because substantial evidence does not support the ALJ’s decision,
Plaintiff’s motion for summary judgment (Dkt. 15) is GRANTED and Defendant’s
motion for summary judgment (Dkt. 18) is DENIED, and this case is REMANDED
to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further
proceedings.
I.
BACKGROUND
A lengthy recitation of the administrative record in this case is not necessary,
as the Court is remanding this case for further consideration on purely procedural
grounds. The ALJ resolved Plaintiff’s claim at step four of the sequential analysis.
In doing so, he found that Plaintiff was capable of performing his past relevant
work as a fast food worker (Tr. 42). The evidence and applicable regulations,
however, do not support the ALJ’s determination that Plaintiff’s employment as a
fast food worker was past relevant work, as that work quite clearly never rose to the
level of “substantial gainful activity” (“SGA”).
Plaintiff worked as a fast-food worker between 2007 and 2010. The
documents in the administrative record provide that Plaintiff’s earnings during
these years were never sufficient to be counted as “substantial gainful activity.” 1
For example, Plaintiff earned $820 (total) in 2005 and one had to average $830 per
The Commissioner has established earnings guidelines that set out the amount of average
monthly earnings that are sufficient to be considered substantial gainful activity. See 20 C.F.R. §§
404.1574(B)(2)-(3), 416.974(B) (2)-(3). Under the Program Operations Manual System’s (“POMS”)
Tables of SGA Guidelines and Effective Dates Based on Year of Work Activity, for 2005 the
countable earnings would be presumptively considered “substantial” if the amount averaged more
than $830 per month, for 2006 $860 per month, for 2007 $900 per month, for 2008 $940 per month,
for 2009 $980 per month, and for 2010 $1,000 per month. See POMS DI 10501.015, Table 2.
Available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015
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month (~$9,960 per year) in 2005 for the work to be SGA; he earned $1,437 in 2006
and one had to average $860 per month (~$10,320 per year) in 2006 for the work to
be SGA; he earned $8,939 in 2007 and one had to average $900 per month
(~$10,800 per year) in 2007 for the work to be SGA; he earned $7,864 in 2008 and
one had to average $940 per month (~$11,280 per year) in 2008 for the work to be
SGA; he earned $6,341 in 2009 and one had to average $980 per month (~$11,760
per year) in 2009 for the work to be SGA; he earned $293 in 2010 and one had to
average $1,000 per month (~$12,000 per year) in 2010 for the work to be SGA (Tr.
218-219). Plaintiff’s only prior work that arguably rose to the level of SGA was in
2001, when he earned $16,000.52 as an industrial worker, when one had to average
$740 per month (~$8,880 per year) to be SGA (Tr. 291). The ALJ found that
Plaintiff could not return to his industrial work, but was only capable of going back
to his fast food work (Tr. 42).
II.
DISCUSSION
A. Standard of Review
In enacting the social security system, Congress created a two-tiered system
in which the administrative agency handles claims, and the judiciary merely
reviews the agency determination for exceeding statutory authority or for being
arbitrary and capricious. See Sullivan v. Zebley, 493 U.S. 521 (1990). The
administrative process itself is multifaceted in that a state agency makes an initial
determination that can be appealed first to the agency itself, then to an ALJ, and
finally to the Appeals Council. See Bowen v. Yuckert, 482 U.S. 137 (1987). If relief
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is not found during this administrative review process, the claimant may file an
action in federal district court. See Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.
1986).
This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited in that the court “must affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
If supported by substantial evidence, the Commissioner’s findings of fact are
conclusive. See 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in the
record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen, 800 F.2d at 545 (6th
Cir. 1986) (en banc). Substantial evidence is “more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007). “The substantial evidence standard presupposes that
there is a ‘zone of choice’ within which the Commissioner may proceed without
interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)
(citations omitted).
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The scope of this Court’s review is limited to an examination of the record
only. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). When reviewing the
Commissioner’s factual findings for substantial evidence, a reviewing court must
consider the evidence in the record as a whole, including that evidence which might
subtract from its weight. See Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992). “Both the court of appeals and the district court may look
to any evidence in the record, regardless of whether it has been cited by the Appeals
Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is
no requirement, however, that either the ALJ or the reviewing court must discuss
every piece of evidence in the administrative record. See Kornecky v. Comm’r of Soc.
Sec., 167 Fed. App’x. 496, 508 (6th Cir. 2006) (“[a]n ALJ can consider all the
evidence without directly addressing in his written decision every piece of evidence
submitted by a party.”) (internal citation marks omitted); see also Van Der Maas v.
Comm’r of Soc. Sec., 198 Fed. App’x. 521, 526 (6th Cir. 2006).
B. Governing Law
The “[c]laimant bears the burden of proving his entitlement to benefits.”
Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord
Bartyzel v. Comm’r of Soc. Sec., 74 Fed. App’x. 515, 524 (6th Cir. 2003). There are
several benefits programs under the Act, including the Disability Insurance
Benefits Program (“DIB”) of Title II (42 U.S.C. §§ 401 et seq.) and the Supplemental
Security Income Program (“SSI”) of Title XVI (42 U.S.C. §§ 1381 et seq.). Title II
benefits are available to qualifying wage earners who become disabled prior to the
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expiration of their insured status; Title XVI benefits are available to poverty
stricken adults and children who become disabled. See F. Bloch, Federal Disability
Law and Practice § 1.1 (1984). While the two programs have different eligibility
requirements, “DIB and SSI are available only for those who have a ‘disability.’”
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means:
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. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a) (SSI).
The Commissioner’s regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in
substantial gainful activity, benefits are denied without
further analysis.
Step Two: If the claimant does not have a severe
impairment or combination of impairments, that
“significantly limits ... physical or mental ability to do
basic work activities,” benefits are denied without further
analysis.
Step Three: If plaintiff is not performing substantial
gainful activity, has a severe impairment that is expected
to last for at least twelve months, and the severe
impairment meets or equals one of the impairments listed
in the regulations, the claimant is conclusively presumed
to be disabled regardless of age, education or work
experience.
Step Four: If the claimant is able to perform his or her
past relevant work, benefits are denied without further
analysis.
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Step Five: Even if the claimant is unable to perform his or
her past relevant work, if other work exists in the
national economy that plaintiff can perform, in view of his
or her age, education, and work experience, benefits are
denied.
20 C.F.R. §§ 404.1520, 416.920. “If the Commissioner makes a dispositive finding at
any point in the five-step process, the review terminates.” Colvin, 475 F.3d at 730.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that []he is
precluded from performing [his] past relevant work.” Jones, 336 F.3d at 474, cited
with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the burden transfers to the
Commissioner. See Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006).
At the fifth step, the Commissioner is required to show that “other jobs in
significant numbers exist in the national economy that [claimant] could perform
given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at
241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
If the Commissioner’s decision is supported by substantial evidence, the
decision must be affirmed even if the court would have decided the matter
differently and even where substantial evidence supports the opposite conclusion.
See Mullen, 800 F.2d at 545. In other words, where substantial evidence supports
the ALJ’s decision, it must be upheld.
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C. Analysis
Plaintiff argues that the ALJ erred by finding Plaintiff could perform his past
work, because his past work as a fast food worker never rose to the level of
substantial gainful activity and therefore, it cannot be considered past relevant
work. The Court agrees.
At step four of the sequential analysis, a claimant will be found not disabled
if he is capable of performing her past relevant work as it was actually performed or
as it is generally performed in the national economy. See 20 C.F.R. § 404.1560(b)
(2); 20 C.F.R. § 416.960(b)(2). The claimant bears the burden at step four of
showing an inability to perform any past relevant work. See Allen v. Califano, 613
F.2d 139, 145 (6th Cir. 1980).
Past relevant work is defined as “work that [a claimant has] done within the
past 15 years, that was substantial gainful activity, and that lasted long enough
for [the claimant] to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1)
(emphasis added). The social security regulations define substantial gainful
activity as work that is both substantial and gainful. See 20 C.F.R. §§ 404.1572,
416.972; see also Skafica v. Sec ‘y of Health & Human Servs., 918 F.2d 179 (6th Cir.
1990). Substantial work activity is defined as work that involves “doing significant
physical or mental activities.” 20 C.F.R. §§ 404.1572(a), 416.972(a). Gainful work is
defined as “work activity that [the claimant does] for pay or profit.” 20 C.F.R. §§
404.1572(b), 416.972(a). Generally, the fundamental consideration when evaluating
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whether work constitutes substantial gainful activity is the amount of earnings
derived from the work performed. See 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1).
The fact that a claimant’s work was part-time does not alone indicate that it
was not SGA. Pursuant to the regulations, “[p]art-time work that was
substantial gainful activity, performed within the last 15 years, and lasted long
enough for the person to learn to do it constitutes past relevant work, and an
individual who retains the RFC to perform such work must be found not disabled.”
SSR 96–8p n. 2, 1996 WL 374184, at *8 (emphasis added). There is a rebuttable
presumption that the employee was or was not engaged in substantial gainful
activity if the employee’s average monthly earnings are above or below a certain
amount established by the Commissioner’s earnings guidelines. See 20 C.F.R. §§
404.1574(B)(2)-(3), 416.974(B) (2)-(3). Under the Program Operations Manual
System’s (“POMS”) Tables of SGA Guidelines and Effective Dates Based on Year of
Work Activity, for 2007 the countable earnings would be presumptively considered
“substantial” if the amount averaged more than $900 per month, for 2008 $940 per
month, for 2009 $980 per month, and for 2010 $1,000 per month. See POMS DI
10501.015, Table 2.2
The Commissioner will consider that earnings show SGA if monthly earnings
exceed those indicated in the chart and related regulations at sections
404.1574(b)(2) and 416.974(b)(2). If earnings are below the amounts in sections
404.1574(b)(2) and 416.974(b)(2), the Commissioner “will generally consider” that
the claimant has not engaged in SGA and “will generally not consider other
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Available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015
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information in addition to [ ] earnings.” §§ 404.1574(b)(3), 416.974(b)(3). However,
the regulations list several exceptions to this generalization. See §§
404.1574(b)(3)(ii), 416.974(b)(3)(ii). Specifically, the Commissioner will customarily
consider information beyond earnings “if there is evidence indicating that you may
be engaging in substantial gainful activity or that you are in a position to control
when earnings are paid to you or the amount of wages paid to you.” Id. The
regulations list two examples of other information the Commissioner may consider.
One is whether the work “is comparable to that of unimpaired people in [the]
community who are doing the same or similar occupations as their means of
livelihood, taking into account the time, energy, skill, and responsibility involved in
the work.” §§ 404.1574(b)(3)(iii)(A), 416.974(b)(3)(iii)(A). The other is whether the
claimant controls his or her own wages. See §§ 404.1574(b)(3)(iii)(B),
416.974(b)(3)(iii)(B). The regulations do not indicate that this is an exclusive list of
examples of other information the Commissioner will consider.
In considering whether an ALJ has incorrectly classified “past relevant work”
as having risen to the level of SGA, several circuit courts have agreed that this error
warrants remand. See Sheppard v. Astrue, 426 Fed. App’x. 608, 609–10 (10th Cir.
2011) (holding that an ALJ committed reversible legal error by failing to give a
claimant the benefit of a rebuttable presumption against SGA when his average
monthly earnings fell below the threshold regulatory levels); Beeks v. Comm'r of
Soc. Sec., 363 Fed. App’x. 895, 897 (3rd Cir. 2010) (“[T]he ALJ failed to consider (or
mention) that [the claimant’s] earnings ... were less than the average monthly
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allowance for presumed substantial activity.... Because the ALJ failed to recognize
this issue and consider it…we must vacate and remand”); Copeland v. Colvin, 771
F.3d 920, 925-26 (5th Cir. 2014) (substantial evidence did not support ALJ’s
conclusion to deny the claimant’s application for disability at step four, where the
ALJ failed to apply a rebuttable presumption against substantial gainful activity
based on earnings below the regulatory threshold for SGA); see also Carolyn A.
Kubitschek & Jon C. Dubin, Social Security Disability Law & Procedure in Federal
Court § 3:6 (2014 ed.) (“[I]f the claimant earned less than the agency’s prescribed
amount, there is a presumption that he did not engage in substantial gainful
activity”); Social Security Law and Practice: Showing Disability § 40:7 (2008)
(“Earnings as an employee below the amount which creates a presumption of
substantial gainful activity create a contrary presumption that a claimant did not
engage in substantial gainful activity” (citations omitted)). In published opinions,
other circuits have recognized a presumption based on low earnings under the
previous, but similarly worded, regulatory regime. See Rossello v. Astrue, 529 F.3d
1181, 1186 (D.C. Cir. 2008) (concluding that earnings “below the $190 threshold
[would] trigger[ ] a presumption that she did not engage in substantial gainful
activity”); Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (“Earnings can be a
presumptive, but not conclusive, sign of whether a job is substantial gainful
activity. Monthly earnings averaging less than $300 generally show that a claimant
has not engaged in substantial gainful activity”); Garnett v. Sullivan, 905 F.2d 778,
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780 n. 1 (4th Cir. 1990) (“[I]f a claimant’s earnings averaged less than $190 per
month, a presumption arose that the claimant was not engaged in SGA”).
The Court also contrasts this case to two other recent district court decisions,
which found that incorrectly categorizing a claimant’s former jobs as past relevant
work – where the claimant’s earning fell below SGA – was harmless error. In both
of these cases, the district courts found that this error did not warrant a remand,
but only where the ALJ also found that the claimant could perform other past
relevant work that did constitute “substantial gainful activity.” See, e.g., Adams v.
Colvin, No. 1:12CV2338, 2013 WL 7020485, at *14 (N.D. Ohio Nov. 25, 2013) report
and recommendation adopted in part, 2014 WL 185783 (N.D. Ohio Jan. 16, 2014)
(“While the ALJ failed to provide adequate support for his step four finding that
[the claimant’s] newspaper delivery person job constituted substantial gainful
activity for past relevant work, he set forth other past relevant work that met [the
claimant’s] RFC and [the claimant] failed to challenge or otherwise meet her burden
of showing that she could not perform these jobs”); Casey v. Astrue, No. 2:08–CV–
095, 2009 WL 613582, at *5 (E.D. Tenn. Mar. 9, 2009) (while ALJ’s step four finding
that the claimant could return to past relevant work as an office cleaner was error,
error was harmless, “as substantial evidence support’s [sic] the ALJ’s alternate
conclusion that [the claimant] could also return to her prior assembly work”). In
this case, unlike in Adams and Casey, the ALJ explicitly found that Plaintiff could
not perform his past work as an industrial worker/hand packager, and instead
found that Plaintiff could only go back to working as a fast food worker (Tr. 42).
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Thus, the ALJ’s error in classifying Plaintiff’s fast food worker job as “past relevant
work” is not harmless in this case, because there was no other past relevant work
that the ALJ found Plaintiff could do, that might have supported the ALJ’s denial of
benefits at step four.
The ALJ’s opinion did not substantively discuss Plaintiff’s earnings as a fast
food worker, which – even the Commissioner appears to agree (Dkt. 17 at 9) – fell
below the SGA thresholds set forth in §§ 404.1574(b)(2) and 416.974(b)(2). In sum,
consistent with other courts which have so held, the Court holds that a rebuttable
presumption arises that past relevant work is not substantial gainful activity when
the evidence shows that a disability claimant’s earnings from that past relevant
work are below the threshold set by the regulations. On remand, the ALJ should
consider whether the evidence shows that Plaintiff, despite his low earnings as a
fast food worker, was in a position to be able to control his own work schedule and
resulting wages, and if so, whether he was therefore able to engage in SGA during
the relevant time periods. But the ALJ’s failure to address Plaintiff’s earnings as a
fast food worker, and apply a presumption that this work was not “substantial
gainful activity,” in this case is grounds for reversal.
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III.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment
(Dkt. 15) is GRANTED. The Commissioner’s Motion for Summary Judgment (Dkt.
17) is DENIED. This matter is REMANDED for further proceedings consistent
with this opinion.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: March 31, 2015
Certificate of Service
I hereby certify that this Order was electronically submitted on March 31,
2015, using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager
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