DIGGS v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Renee Marie Bumb on 2/20/2014. (drw)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PROVIA W. DIGGS,
Plaintiff,

Civil No. 12-CV-07253 (RMB)
OPINION

v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Appearances
Adrienne Freya Jarvis
800 North Kings Highway, Ste. 304
Cherry Hill, NJ 08034
Attorney for Plaintiff
Robert Randolph Schriver
Kristina Danielle Cohn
Social Security Administration
Office of the General Counsel
26 Federal Plaza, Room 3904
New York, NY 10278
Attorney for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Provia W. Diggs (the “Plaintiff”) seeks judicial
review pursuant to 42 U.S.C. § 405(g) of the final decision of
the Acting Commissioner of Social Security (the “Commissioner”)
denying her application for Disability Insurance Benefits
(“DIB”). For the reasons set forth below, the Court AFFIRMS the
decision of the administrative law judge (“ALJ”).
1

I.

Standard of Review
A reviewing court must uphold the Commissioner of Social

Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “Substantial evidence” means
“‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahearn v. Comm’r of Soc. Sec., 165 F. App’x 212, 215 (3d Cir.
2006) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984);
Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.
1986)).
If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)). Stated differently,

2

[U]nless the [Commissioner] has analyzed all evidence
and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his
decision is supported by substantial evidence
approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether
the conclusions reached are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted); see also Guerrero v.
Comm’r of Soc. Sec., No. 05-1709, 2006 WL 1722356, at *3 (D.N.J.
June 19, 2006) (“The [administrative law judge’s] responsibility
is to analyze all the evidence and to provide adequate
explanations when disregarding portions of it.”), aff’d, 249 F.
App’x 289 (3d Cir. 2007).
While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 122 (3d Cir. 2000). See also Fargnoli, 247 F.3d at
42 (“Although we do not expect the [administrative law judge] to
make reference to every relevant treatment note in a case where
the claimant . . . has voluminous medical records, we do expect
the ALJ, as the factfinder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities
under the regulations and case law.”).
3

In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). The court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r of Soc. Sec.,
181 F.3d 429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
4

20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis, although only step one is at issue here:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a). If a claimant
is found to be engaged in substantial activity, the
disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140 (1987).
II.

Background
a. Procedural Background
Plaintiff was 34 years old on her alleged disability onset

date of January 1, 2005. (R. 102.) Plaintiff claims that because
of mental illness, post-traumatic stress, and migraines, she has
been unable to work since January 1, 2005. (R. 119.) On
September 3, 2009, Plaintiff applied for DIB and Supplemental
Security Income (“SSI”).1 (R. 18, 102-03, 104-06.) Plaintiff’s
SSI claim was approved with a disability onset date of September
3, 2009, and she is currently receiving SSI benefits. (See Pl.’s
Br., Dkt. Ent. 12, at 1 & Ex. A; R. 113.) However, Plaintiff’s
DIB claim was denied initially on March 29, 2010 and upon
reconsideration on May 24, 2010. (R. 18, 48-60, 64-65.)

1

Generally, in order to be eligible for DIB, a claimant must
have worked for at least 20 of the 40 quarters preceding her
alleged disability onset date. See 42 U.S.C. § 423(c)(1); 20
C.F.R. § 404.130. As the ALJ noted, and Plaintiff does not
dispute, “[t]he claimant’s earnings record shows that the
claimant has acquired sufficient quarters of coverage to remain
insured through December 31, 2005 (hereinafter ‘the date last
insured’).” (R. 20; see also id. at 111.)
5

On March 21, 2011, the ALJ held a hearing at which
Plaintiff and her expert, Dr. Richard Cohen, testified. (R. 2951.) On June 13, 2011, the ALJ issued a decision finding that
Plaintiff engaged in substantial gainful activity (“SGA”) from
January 1, 2005 through December 31, 2005, her date last
insured, and therefore was not disabled within the meaning of
the Social Security Act (“SSA”). (R. 20-21.) Plaintiff filed a
Request for Review with the Appeals Council, which was denied on
September 25, 2012 (R. 1-5, 14), and thus the ALJ’s decision
became the final decision of the Commissioner. See 20 C.F.R.
§ 404.981. This appeal ensued.
b. Plaintiff’s Testimony
Plaintiff testified that in January 2005, she was unable to
work because “I was in and out of the hospital, and it seemed
like I couldn’t keep a balance between trying to have a
marriage, a household, and bills, and trying to keep my mental
health in a balance . . . .” (R. 36.) She also testified that
she was using approximately $800 worth of drugs per week at the
time (id. at 34), and that she “was dancing . . . in the
entertainment industry . . . [as] a means to support [her]
habit.” (Id. at 37.) Plaintiff explained that she “would just
mainly walk around the club, sit down, talk to people” and that
her shifts lasted from two to four hours, although the precise
duration was up to her. (Id. at 40-41.) In addition, Plaintiff
6

engaged in “other little things” that were “embarrassing,” such
as “entertaining as a friend” or other activities involving
friends with benefits. (Id. at 38-40.) Plaintiff does not
dispute that these activities involved prostitution. (Id. at 194
n.1.) Some of the individuals who Plaintiff entertained would
provide her with drugs in exchange. (Id. at 38, 40.) But, she
testified that this “wasn’t work.” (Id. at 40.)
When asked how much she thought she was earning in a
typical month, Plaintiff guessed that she earned around $3,2004,000 per month “off the books.” (Id. at 37-38.)2 However, she
also “wasn’t consistently working” and “would not show up for
work for weeks at a time.” (Id. at 38.) She further testified
that she did not earn an annual income of $40,000 because she
“was also able to get [drugs] from people without having to
work” through her other engagements. (Id. at 38-39.)
c. The ALJ’s Decision
The ALJ determined at Step 1 that Plaintiff engaged in SGA
from January 1, 2005, the alleged onset date of disability,

2

In particular, Plaintiff testified as follows:
Q. So [how] much do you think you were earning in a
typical month, overall, about? Assuming that eight
times four is $3,200, roughly.
A. I guess so. Something like that.
Q. $3,200, $4,000 maybe. I’m just –
A. Around that, maybe, --.

(R. 37.)
7

through December 31, 2005, her date last insured, and therefore
was not disabled within the meaning of the SSA. (R. 20-21.) He
relied primarily on Plaintiff’s testimony that in 2005, she used
approximately $800 worth of drugs per week. (Id. at 20.)
Plaintiff admitted that she was dancing at clubs and engaging in
“embarrassing” activities with “friends with benefits” to earn
the necessary funds to support her habit. (Id.) The ALJ cited
the definition of SGA set forth in SSR 82-53, and noted that
both dancer and escort are occupations listed in the Dictionary
of Occupational Titles (“DOT”) and therefore constitute the type
of work normally done for pay or profit. (Id. at 20-21.) He also
addressed Plaintiff’s contention that she did not engage in this
work on a full-time basis but did so only sporadically, finding
that such assertions were undermined by the fact that part-time
work may be considered SGA and that she admitted she earned up
to $4,000 per month. (Id. at 21.)
III.

Analysis
At issue in this case is whether there is substantial

evidence supporting the ALJ’s finding that Plaintiff engaged in
SGA from January 1, 2005 through December 31, 2005. At Step One,
if it is determined that the claimant is engaging in SGA, then
the disability claim will be denied. 20 C.F.R. § 404.1520. Work
activity is substantial if it “involves [] significant physical
or mental activities,” even where it is part-time work or a
8

plaintiff does less, is paid less, or has less responsibility
than with prior work. Id. §§ 404.1572(a), 416.972(a). Work
activity is gainful if it is the type that is usually done for
pay or profit, regardless of whether or not a profit is
realized. Id. §§ 404.1572(b), 416.972(b). A person’s illegal
activities, such as Plaintiff’s prostitution-related activities,
can constitute SGA. See SSR 94-1c; see also Dotson v. Shalala, 1
F.3d 571 (7th Cir. 1993) (thievery); Corrao v. Shalala, 20 F.3d
943, 948 (9th Cir. 1994) (drug dealing).
A person earning more than a designated monthly amount that
is calculated based upon the national average wage index is
presumed to be engaging in SGA. See id. § 404.1574(b)(2). In
2005, the SGA earnings level was $830 per month.3 Earnings at or
above this level create a rebuttable presumption of SGA. See 20
C.F.R. § 404.974(b)(2). “In considering whether the presumption
is rebutted, the factors to be considered include the
responsibilities and skills required to perform the work, the
amount of time the individual spends working, the quality of the
individual’s work, special working conditions, and for
individuals who are self-employed, the value of their work to
the business.” Corrao v. Shalala, 20 F.3d 943, 948 (9th Cir.
1994) (citing 20 C.F.R. §§ 416.973-416.976).

3

Substantial Gainful Activity, SSA,
http://www.ssa.gov/OACT/cola/sga.html (last accessed Feb. 11,
2014).
9

In evaluating whether the claimant engaged in SGA, the
starting point is the claimant’s earnings. 20 C.F.R.
§ 404.1574(a)(1) (“Generally, in evaluating your work activity
for substantial gainful activity purposes, our primary
consideration will be the earnings you derive from the work
activity.”). Earnings are generally averaged over the period of
time in which the work was performed. See SSR 83-35, 1983 WL
31257 (1983). Here, Plaintiff testified to an average monthly
income of $3,200 or $4,0004 (R. 37), more than three times the
Guidelines amount and thus sufficient to find Plaintiff
presumptively engaged in SGA.
The ALJ further determined that because “dancer” and
“escort” are defined in the DOT, Plaintiff engaged in gainful
activity, i.e. work that is normally done for pay or profit. (R.
20-21); 20 C.F.R. §§ 404.1572(b), 416.972(b). Plaintiff argues
that this finding was in error because Plaintiff’s work
activities do not match the activities described in the DOT.
(See Dkt. Ent. 8.) The Court rejects this argument. At the very
least, Plaintiff testified that she would “walk around the club,
sit down, talk to people,” looking for a person with the right
amount of money. (R. 40-41.) As to her illegal prostitution

4

Plaintiff’s testimony that she did not make an annual income of
$40,000 is not inconsistent with an average monthly income on
the low end of this range, especially in light of her testimony
that she engaged in other activities for which she was paid in
drugs. (See R. 38.)
10

activities,5 she testified that she entertained people. (Id. at
39-40.) These activities are consistent with the activities of
an escort as defined by the DOT. See DOT 359.367-010 (“Acts as
social partner for person of opposite sex to enable individual
to attend functions, participate in activities requiring a
partner, or provide companionship . . . while visiting public
establishments . . . .”).6 Furthermore, Plaintiff testified that
she danced (R. 37, 40),7 so the Court is at a loss as to how her
activities would not meet those of a “dancer” as defined by DOT
151.047-010. Thus, the ALJ’s finding of gainful employment is
supported by substantial evidence in the record.
Plaintiff next challenges the ALJ’s conclusion that
Plaintiff’s work activities were substantial. Plaintiff’s
argument comes down to her assertion that she received drugs
“from people without having to work” (R. 38; see also Pl.’s Br.
at 15), and thus the ALJ’s failure to ascertain what proportion
of the drugs Plaintiff purchased or otherwise obtained through
work activity versus what proportion she received for free,
renders the ALJ’s conclusion unsupportable. The context of

5

Plaintiff’s testimony suggests that she engaged in prostitution
activities, which Plaintiff does not dispute. (R. 194 n.1.)
6

DOT (4th ed. 1991), available at
https://www.oalj.dol.gov/LIBDOT.HTM (last visited Feb. 18,
2014).
7

See also id. at 456 (reporting on Dec. 20, 2005 that she worked
as an exotic dancer); id. at 235, 240 (reporting in January 2006
that she has “been stripping for the past 5 years”).
11

Plaintiff’s testimony demonstrates, however, that Plaintiff
received those drugs in exchange for “entertaining” certain
individuals. In other words, the drugs were not akin to a gift
given for free to a friend but rather were provided to Plaintiff
as payment for her services. (R. 39-40 (“I had other little
things going on that I – that weren’t work related. I – it’s
really embarrassing that I have to [go] into it. . . . Yeah, I
was getting it - . . . – basically given to me, because I would
get a couple – maybe I’d go to a club, maybe dance for one day
or something, or a couple hours, meet these people and then just
– I’d be entertaining as a friend, and in that type of thing
friends were [sic] benefits.”).) Furthermore, to the extent that
Plaintiff testified that she did not work as a dancer
consistently and would not show up for work for weeks at a time
(id. at 38), the ALJ rejected this testimony as inconsistent
with the record and specifically Plaintiff’s testimony that she
earned approximately $3,200 to $4,000 per month. (See id. at
21); Ogden, 677 F. Supp. at 278 (the Commissioner “must
adequately explain in the record his reason for rejecting or
discrediting competent evidence”). In addition, Plaintiff
reported in January 2006 that she had been stripping for the
past 5 years, had been employed 30 of the prior 36 months, and
had been unemployed for the past 2 months. (Id. at 240.) This
evidence further supports the ALJ’s conclusion that Plaintiff
12

engaged in regular work activity. In any event, as the ALJ
acknowledged, even part-time work may constitute SGA. (Id. at
21); see also 20 C.F.R. §§ 404.1572(a), 416.972(a); id.
§ 404.1573(e) (“Time spent in work. While the time you spend in
work is important, we will not decide whether or not you are
doing substantial gainful activity only on that basis. We will
still evaluate the work to decide whether it is substantial and
gainful regardless of whether you spend more time or less time
at the job than workers who are not impaired and who are doing
similar work as a regular means of their livelihood.”).
Moreover, contrary to Plaintiff’s contention, both her
legal and illegal work activity required significant mental and
physical exertion. For example, Plaintiff’s activities
necessitated, at the very least, searching for an individual
with the right amount of money or with access to drugs (see R.
41-42), and, once she identified that person or persons, she
entertained him/her (id. at 37). See Dotson, 1 F.3d at 577-78
(finding substantial evidence of SGA where plaintiff testified
to planning and executing thefts and subsequent resale, and
lifting and carrying stolen items); cf. Corrao, 20 F.3d at 94849 (finding drug dealing activities not SGA where plaintiff did
not plan the purchase but was passively contacted by two or
three people who requested he purchase drugs for them, and
plaintiff spent less than one hour a day purchasing drugs, the
13

majority of which was spent as a passenger in a car). Thus, the
Court finds the ALJ’s conclusion that Plaintiff engaged in SGA
regularly throughout the relevant period is supported by
substantial evidence and therefore affirms the ALJ’s decision.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Date: February 20, 2014

14