QUARELLI v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Noel L. Hillman on 9/28/2017. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PETER P. QUARELLI,
COMMISSIONER OF SOCIAL
ALAN H. POLONSKY
POLONSKY AND POLONSKY
512 S WHITE HORSE PIKE
AUDUBON, NJ 08106
On behalf of Plaintiff
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19123
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section 205(g)
of the Social Security Act, as amended, 42 U.S.C. § 405(g),
regarding Plaintiff’s application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“Social
Security benefits”) under Title II and Title XVI of the Social
42 U.S.C. § 401, et seq.
The issue before the
Court is whether the Administrative Law Judge (“ALJ”) erred in
finding that there was “substantial evidence” that Plaintiff was
not disabled at any time since his alleged onset date of
disability, January 5, 2012.
For the reasons stated below, this
Court will reverse that decision and remand the matter for further
BACKGROUND AND PROCEDURAL HISTORY
On December 19, 2012, Plaintiff, Peter P. Quarelli, applied
for benefits alleging disability since January 5, 2012.
Plaintiff’s impairments include depression, anxiety, posttraumatic stress disorder, lumbar degenerative disc disease,
obesity, history of alcohol abuse, and cognitive disorder.
Plaintiff previously owned a restaurant and served as a food
service manager, car salesperson, sales clerk, and advertising
After the state agency denied Plaintiff’s application,
Plaintiff requested an administrative hearing.
A hearing before
an ALJ was held on January 16, 2015, and a supplemental video
hearing was held on April 21, 2015.
On June 19, 2015, the ALJ
issued his decision, which determined that Plaintiff was not
On June 1, 2016, the Appeals Council denied Plaintiff’s
request for review, rendering the ALJ’s decision the final
decision of the Commissioner.
Plaintiff brings this civil action
for review of the Commissioner’s decision.
Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
A reviewing court must
uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”
42 U.S.C. §§ 405(g),
1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001);
Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
evidence means more than “a mere scintilla.”
Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co.
V. NLRB, 305 U.S. 197, 229 (1938)).
It means “such relevant
evidence as a reasonable mind might accept as adequate to support
The inquiry is not whether the reviewing
court would have made the same determination, but whether the
Commissioner’s conclusion was reasonable.
See Brown v. Bowen, 845
F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its
See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984).
“[A] court must ‘take into account whatever in the record fairly
detracts from its weight.’” Schonewolf v. Callahan, 972 F. Supp.
277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health &
Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal
Camera Corp. V. NLRB, 340 U.S. 474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons for rejecting or discrediting competent evidence.”
v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster
v. Heckler, 786 F.2d 581 (3d Cir. 1986)).
The Third Circuit has
held that an “ALJ must review all pertinent medical evidence and
explain his conciliations and rejections.”
Burnett v. Comm’r of
Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
ALJ must also consider and weigh all of the non-medical evidence
Id. (citing Van Horn v. Schweiker, 717 F.2d 871, 873
(3d Cir. 1983)); Cotter v. Harris, 642 F.2d 700, 707 (3d Cir.
The Third Circuit has held that access to the Commissioner’s
reasoning is indeed essential to a meaningful court review:
Unless 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).
ALJ, as the fact finder, must consider and evaluate the medical
evidence presented, Fargnoli, 247 F.3d at 42, “[t]here is no
requirement that the ALJ discuss in its opinion every tidbit of
evidence included in the record,” Hur v. Barnhart, 94 F. App’x
130, 133 (3d Cir. 2004).
In terms of judicial review, a district
court is not “empowered to weigh the evidence or substitute its
conclusions for those of the fact-finder.”
Williams, 970 F.2d at
However, apart from the substantial evidence inquiry, a
reviewing court is entitled to satisfy itself that the
Commissioner arrived at his decision by application of the proper
Sykes, 228 F.3d at 262; Friedberg v. Schweiker,
721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp.
791, 793 (D.N.J. 1981).
Standard for Disability Insurance Benefits
The Social Security Act defines “disability” for purposes of
an entitlement to a period of disability and disability insurance
benefits 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 12 months.
See 42 U.S.C. §
Under this definition, a Plaintiff qualifies as
disabled only if his physical or mental impairments are of such
severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type 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
42 U.S.C. § 1382c(a)(3)(B) (emphasis added).
The Commissioner has promulgated regulations for determining
disability that require application of a five-step sequential
See 20 C.F.R. § 404.1520.
This five-step process is
summarized as follows:
If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”
If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”
If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1
and has lasted or is expected to last for a continuous
period of at least twelve months, the claimant will be
If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”
Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience to
determine whether or not he is capable of performing
other work which exists in the national economy. If he
is incapable, he will be found “disabled.” If he is
capable, he will be found “not disabled.”
20 C.F.R. § 404.1520(b)-(f).
Entitlement to benefits is therefore
dependent upon a finding that the claimant is incapable of
performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150,
1153 (3d Cir. 1983).
In the first four steps of the analysis, the
burden is on the claimant to prove every element of his claim by a
preponderance of the evidence.
In the final step, the
Commissioner bears the burden of proving that work is available
for the Plaintiff: “Once a claimant has proved that he is unable
to perform his former job, the burden shifts to the Commissioner
to prove that there is some other kind of substantial gainful
employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775,
777 (3d Cir. 1987); see Olsen v. Schweiker, 703 F.2d 751, 753 (3d
Plaintiff was born January 12, 1955 and is currently sixtyone years old.
On the alleged onset date of January 5, 2012, he
was fifty-six years old, which is defined as an individual of
The ALJ found he was insured for Social Security
Disability benefits through December 31, 2013, but that Plaintiff
worked at the substantial gainful activity (“SGA”) level from
January 2013 through December 2013. 1
Because there were continuous
12-month periods where Plaintiff did not engage in SGA, the ALJ
only considered Plaintiff’s condition during those periods of
The ALJ found that the following impairments were severe:
depression, anxiety, post-traumatic stress disorder, lumbar
degenerative disc disease, obesity, history of alcohol abuse, and
The ALJ then found that these impairments
were not of a level of severity that met or equaled the level of
severity of the Listings of Impairments.
The ALJ then concluded
that because of the impairments he found, Plaintiff was limited to
“medium work as defined in 20 CFR 404.1567(c) and 416.967(c),
meaning that the claimant can lift up to fifty pounds occasionally
and lift or carry up to twenty-five pounds frequently.
claimant is also limited to work to [sic] unskilled and only
occasional changes in the work setting with only occasional
As discussed in depth below, the determination of whether
Plaintiff engaged in substantial gainful employment affects the
determination of whether Plaintiff is disabled.
interaction with the public and coworkers.” (R. at 46, 48.)
Based upon this residual functional capacity, the ALJ found
that Plaintiff could not return to any of his past work.
Consideration then turned to the question of disability at Step
Five of the sequential evaluation process, where the ALJ
determined Plaintiff was of advanced age (55 or more) and had at
least a high school education.
After posing hypothetical
questions to the Vocational Expert, the ALJ found that a person
with Plaintiff’s limitations would be able to perform the tasks of
a cleaner/housekeeper, routing clerk, photocopying machine
operator, automobile detailer, kitchen helper, and hand packager,
with only occasional changes in the work setting, and with only
occasional interaction with the public and coworkers.
these findings, the ALJ determined that Plaintiff was not disabled
under sections 216(i) and 223(d) of the Social Security Act from
the alleged onset date of January 5, 2012, through the date of his
Plaintiff raises three issues on appeal:
(1) Whether the ALJ
erred when he calculated Plaintiff’s SGA and did not consider
Plaintiff’s condition during the alleged SGA periods; (2) Whether
the ALJ erred when he determined Plaintiff’s residual functional
capacity; and (3) Whether the ALJ erred at Step Five when he
determined that there were a significant number of alternate jobs
that Plaintiff was able to perform.
The Court finds that
substantial evidence does not support the ALJ’s Step One analysis
regarding Plaintiff’s alleged substantial gainful activity in
2013, and the matter must be remanded on that basis. 2
Even though Plaintiff’s alleged onset date of disability was
January 5, 2012, the ALJ determined that Plaintiff engaged in SGA
from January 2013 through December 2013.
If an individual has
earnings from employment above a certain level, it is presumed
that he has demonstrated the ability to engage in SGA, which shows
Because the Court finds that the ALJ erred on the Step One
SGA analysis and that error warrants remand, the Court need not
consider Plaintiff’s other two arguments. See, e.g., Beeks v.
Commissioner, 363 F. App’x 895, 897, 2010 WL 381459, at *2 (3d
Cir. 2010) (finding that the ALJ failed to consider (or mention)
that the claimant’s earnings after the alleged onset of her
disability were less than the average monthly allowance for
presumed substantial activity, and because the ALJ failed to
recognize this issue and consider it in his step one analysis, the
court vacated and remanded the matter to the Commissioner); King
v. Colvin, 2015 WL 1870755, at *21 (N.D. Cal. 2015) (“[T]he
Commissioner contends that the ALJ determined on the basis of
substantial evidence in the record at step three that Plaintiff
had no severe impairment, so any error in the step one substantial
gainful activity analysis is harmless. But given the errors
identified  that call into question the ALJ's weighing of the
medical evidence, this argument is unavailing; if the ALJ erred in
weighing the medical evidence relied on to create an RFC used to
determine whether Plaintiff could work and might have reached a
different conclusion at that step after properly weighing the
evidence, then the ALJ's conclusion at step one might be material
to the ultimate result.”).
that he is not disabled regardless of how severe his physical or
mental impairments are.
See R. at 44 (citing 20 C.F.R. §§
404.1574, 404.1575, 416.974, 416.975).
The ALJ found:
A review of the record indicated the claimant earned
$12,627.00 in 2013 (Exhibits 4D-9D). Hence, the average of
the claimant's 2013 earnings exceeded the 2013 substantial
gainful activity limit of $1,040.00 per month (20 CFR
404.1574 and 416.1574). As such, the undersigned finds the
claimant engaged in substantial gainful from January 2013
through December 2013. Additionally, the undersigned has
also considered the claimant's work after the alleged onset
date as one factor when discussing the claimant's symptoms
and the credibility of his allegations and subsequently finds
that the claimant's allegations of a total inability to work
are less credible.
(R. at 45.)
As a result of this finding, the ALJ did not consider
whether Plaintiff was disabled from January 5, 2012 through
December 2013, which is a period of two years, although the ALJ
used Plaintiff’s purported SGA to assess Plaintiff’s credibility
as to his disability after December 2013.
Plaintiff argues that the ALJ erred in his SGA calculation
and his subsequent analysis of Plaintiff’s disability based on
that erroneous calculation.
The starting point for the
calculation of SGA is 20 C.F.R. § 404.1574.
evaluating your work activity for substantial gainful activity
purposes, our primary consideration will be the earnings you
derive from the work activity.
We will use your earnings to
determine whether you have done substantial gainful activity
unless we have information from you, your employer, or others that
shows that we should not count all of your earnings.”
20 C.F.R. §
If, however, a claimant’s “average monthly
earnings are equal to or less than the amount(s) determined under
paragraph (b)(2) of this section for the year(s) in which you
work, we will generally consider that the earnings from your work
as an employee . . . will show that you have not engaged in
substantial gainful activity.”
Id. § 404.1574(b)(3).
“Ordinarily, work you have done will not show that you are
able to do substantial gainful activity if, after you worked for a
period of 6 months or less, your impairment forced you to stop
working or to reduce the amount of work you do so that your
earnings from such work fall below the substantial gainful
activity earnings level in paragraph (b)(2) of this section, and
you meet the conditions described in paragraphs (c)(2), (3), and
(4) of this section.”
Id. § 404.1574(c)(1).
Here, the ALJ determined that Plaintiff earned $12,627.00 in
2013, during which time Plaintiff worked at the Home Depot as a
salesperson for three months and a car salesperson for less than
five months. 3
The ALJ combined the income from these two jobs and
Plaintiff points out that in 2014 he worked at a company called
“Ugly Baby” through a state program, but that employment only
lasted as long as the state grant paid his salary. The ALJ’s
divided the sum by twelve to determine that Plaintiff earned
$1,040.00 per month in 2013, which monthly total exceeds the SGA
See id. § 404.1574(b)(2). 4
Plaintiff argues that the ALJ’s calculation is incorrect in
First, Plaintiff argues that the ALJ erred by averaging
his two periods of employment in combination rather than assessing
Second, Plaintiff argues that his employment
does not count as SGA because his impairments forced him to stop
working – i.e., he was terminated from employment because of his
decision does not mention this employment or affirmatively
determine that it did not constitute SGA. Plaintiff contends that
this work constitutes a “trial work period,” which does not count
as SGA. See 20 C.F.R. § 404.1592 (explaining that during a trial
work period, a beneficiary receiving Social Security disability
benefits may test his or her ability to work and still be
considered disabled. We do not consider services performed during
the trial work period as showing that the disability has ended
until services have been performed in at least 9 months (not
necessarily consecutive) in a rolling 60-month period). The Court
does not need to address this argument, as presumably the ALJ will
consider it on remand when revisiting his SGA analysis.
Applying the ALJ’s calculation, Plaintiff’s monthly earnings for
2013 were $1,052.25, $12.25 above the SGA limit. See 20 C.F.R. §
404.1574(b)(2) (“Beginning January 1, 2001, and each year
thereafter, the average more than the larger of: (A) The amount
for the previous year, or (B) An amount adjusted for national wage
growth, calculated by multiplying $700 by the ratio of the
national average wage index for the year 2 calendar years before
the year for which the amount is being calculated to the national
average wage index for the year 1998. We will then round the
resulting amount to the next higher multiple of $10 where such
amount is a multiple of $5 but not of $10 and to the nearest
multiple of $10 in any other case.”).
unsatisfactory performance arising out of his inability to control
his anger and other mental disabilities.
According to 20 C.F.R. § 404.1574a(a), for work that was
“continuous without significant change in work patterns or
earnings, and there has been no change in the substantial gainful
activity earnings levels, we will average your earnings over the
entire period of work requiring evaluation to determine if you
have done substantial gainful activity.”
However, if a claimant’s
“work over a period of time during which the substantial gainful
activity earnings levels change, we will average your earnings
separately for each period in which a different substantial
gainful activity earnings level applies,” or if “there is a
significant change in your work pattern or earnings during the
period of work requiring evaluation, we will average your earnings
over each separate period of work to determine if any of your work
efforts were substantial gainful activity.”
20 C.F.R. §
In addition to the calculation of SGA, the Commissioner is
Consider how well you do your work when we determine whether
or not you are doing substantial gainful activity. If you do
your work satisfactorily, this may show that you are working
at the substantial gainful activity level. If you are unable,
because of your impairments, to do ordinary or simple tasks
satisfactorily without more supervision or assistance than is
usually given other people doing similar work, this may show
that you are not working at the substantial gainful activity
level. If you are doing work that involves minimal duties
that make little or no demands on you and that are of little
or no use to your employer, or to the operation of a business
if you are self-employed, this does not show that you are
working at the substantial gainful activity level.
20 C.F.R. § 416.973(b).
The Court finds that the ALJ’s decision as to Plaintiff’s SGA
is not supported by substantial evidence because the decision
lacks any substantive analysis to explain why Plaintiff’s two jobs
in 2013 (1) did not constitute a significant change in work
pattern or earnings so that they should be averaged, and (2) how
Plaintiff performed those positions in a satisfactory manner not
measurably impacted by his impairments.
Even though “[t]here is little case law establishing what
constitutes a ‘significant change’ under the applicable
regulations,” Proffitt v. Colvin, 2017 WL 536076, at *3 (W.D. Va.
2017), courts that have considered the issue have found that when
a claimant’s work pattern is not continuous, the claimant’s
monthly earnings are determined for the period actually worked,
rather than averaged over the course of a calendar year, see,
e.g., Ramirez v. Colvin, 2014 WL 292016, at *3 (C.D. Cal. 2014)
(citing Robinson v. Astrue, No. 10–CV–8111, 2011 WL 4634235, at
*10 (C.D. Cal. Oct. 6, 2011) (holding that Plaintiff's claim that
“average monthly income is defined as annual income divided by
twelve months, regardless of the number of months she actually
worked” was inconsistent with the language of the regulations);
Underwood v. Comm'r of Soc. Sec., No. 12–CV–391, 2013 WL 1748050
(M.D. Fla. Apr. 4, 2013) report and recommendation adopted, 2013
WL 1749798 (M.D. Fla. Apr. 23, 2013) (“Because [claimant's] work
as a telemarketer was not continuous, averaging his earnings over
the entire year does not accurately reflect whether his work was
SGA.”); Anderson v. Heckler, 726 F.2d 455, 457 (8th Cir.1984) (“A
proper reading of the regulation requires that the decision maker
average the wages earned by the applicant over the time employed
to determine whether during that time the applicant was capable of
substantial gainful activity.”)).
In this case, Plaintiff worked at two different jobs in 2013,
with the job at Home Depot lasting three months, and the car sales
job lasting less than five months.
In addition to the ALJ failing
to articulate why the Home Depot job constituted SGA since it
lasted only three months, see Conwell v. Commissioner of Social
Security, 2015 WL 9872213, at *8 (S.D. Ohio 2015) (citing 20
C.F.R. § 404.1574(a)(1)) (noting that employment periods of three
months or less are often considered not to be substantial gainful
activity), the ALJ did not explain why Plaintiff’s earnings from
the Home Depot job and the car sales job should not be averaged
for three months and five months, respectively or in combination
for a total of eight months, rather than combined and averaged
over twelve months.
The ALJ erred in this regard.
Shepard v. Astrue, 2011 WL 5419852, at *5 (D. Vt. 2011) (remanding
the matter to the ALJ, finding that even though significant
changes in Shepard's earnings (and thus application of 20 C.F.R. §
416.974a(c)) perhaps could justify the ALJ's failure to average
Shepard's earnings over the entire period of work, but it could
not be discerned from the ALJ's decision or the record as a whole
that the ALJ actually applied and relied on this regulation as a
basis for averaging Shepard's earnings merely over certain
quarters of work) (citing Yonts v. Barnhart, 2004 WL 1005690, at
*4 (N.D. Ill. May 4, 2004) (“The problem is that the ALJ's
decision gives no indication [as to how] she applied the
regulations ..., that she ever calculated average monthly
earnings, or that she ever considered the other factors specified
in [the regulations].”)); Kwiatkowski v. Astrue, 2012 WL 1378653,
at *5 (N.D. Ill. 2012) (“[E]ven assuming that averaging
Plaintiff's Wal–Mart earnings during 2008–2009 was not
appropriate, the ALJ should have discussed why he opted not to do
so. Instead, the ALJ did not make a finding of any material
changes in Plaintiff's earnings or work patterns, and it is not
clear why he chose to report Plaintiff's monthly earnings in the
matter that he did.”).
This failure is compounded by the fact that the ALJ did not
opine on whether Plaintiff’s impairments caused him to perform his
work in an unsatisfactory manner such that it did not constitute
SGA, and then relied up on this SGA to cast doubt on Plaintiff’s
Plaintiff claims that even though he attempted to
work, he was unsuccessful due to a traumatic brain injury that
resulted in the inability to regulate his anger and emotions.
ALJ determined that Plaintiff’s claimed inability to work was
undermined by his SGA in 2013, but the ALJ’s decision does not
explain how these two periods of employment supported that
The ALJ recounts some medical evidence from various
time periods (1999, 2001, 2004, 2013, 2014, 2015) and testimony of
Plaintiff and his mother, but he does not tie that evidence to
Plaintiff argues that the miscalculation is significant because
the ALJ’s decision appears to conclude that Plaintiff worked
continuously until December 2013, and only adjudicated disability
from that point on, rather than from his alleged disability onset
date of January 5, 2012. Plaintiff also argues that even if the
ALJ’s calculation was correct, the ALJ did not adjust Plaintiff’s
last insured date accordingly. The Court need not address these
arguments, except to note that on remand the ALJ should be clear
about the period of disability he is assessing and based on that
assessment, properly determine Plaintiff’s last insured date.
Plaintiff’s SGA determination.
Earnings alone are not dispositive of the presumption of
substantial gainful activity, and the presumption can be rebutted
by evidence of the nature of the claimant’s work, the conditions
of employment, and the adequacy of the claimant’s performance.
C.F.R. §§ 404.1573, 416.973(b).
Plaintiff presented evidence to
support why he was not successful at his two jobs in 2013, but the
ALJ skipped over the rebuttable presumption analysis at Step One,
deemed - without further elaboration as to Plaintiff’s performance
- that those jobs were SGA, and then used that SGA determination
to discredit Plaintiff’s total disability claim.
This also was in
See, e.g., Disalvatore v. Colvin, 2016 WL 5019178, at *8–9
(S.D. Ala. 2016) (“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 performed at a level of substantial
gainful employment, thus meeting the criteria for past relevant
On remand, the Commissioner will have an opportunity to
consider this argument by the Plaintiff in greater detail.”);
Heavens v. Colvin, 2016 WL 1274074, at *2–3 (C.D. Cal. 2016)
(noting that the SGA factors to be considered in addition to the
amount earned include the nature of the work performed, how well
the claimant performs the work, whether the work is done under
special conditions, whether the claimant is self-employed, and the
amount of time spent working, and finding that the ALJ failed to
discuss any of these factors in his decision, and treated
Plaintiff’s past work as substantial gainful activity without a
proper explanation); Hensley v. Colvin, 2015 WL 3572557, at *6
(E.D. Cal. 2015) (noting that “[i]f the ALJ fails to identify any
particular evidentiary or testimonial evidence to support the
conclusion of substantial gainful activity despite earnings below
the presumptive amount, the conclusion is not supported by
substantial evidence and the district court must reverse,” and
finding that “[i]n the absence of any evidence or analysis of
Plaintiff's earnings as a demonstrator in 1997, 1998, and 1999,
the Court cannot conclude that the ALJ's determination was
supported by substantial evidence”); Andino v. Commissioner, 2013
WL 3354429, at *7 (D.N.J. 2013) (finding that the ALJ failed to
adequately assess the plaintiff's disability claim past the first
step of the five-step disability analysis because the ALJ's
decision relied heavily on quantitative data, or the amount per
month that Plaintiff earned as well as the number of hours she
worked, in deeming that Plaintiff did, and is indeed capable of
performing SGA, but in making such an assessment, the Commissioner
should have also evaluated the qualitative factors in the
When an ALJ has failed to apply the correct legal standards
and his conclusions are not supported by substantial evidence, the
Court must decide whether to remand the case for rehearing or to
reverse and order an award of benefits.
Under Sentence Four of 42
U.S.C. § 405(g), the Court has authority to affirm, modify, or
reverse the Commissioner's decision “with or without remanding the
cause for rehearing.”
Melkonyan v. Sullivan, 501 U.S. 89, 99
Because the evaluation of a claimant’s substantial
gainful activity is based on regulated calculations 6 and the
evaluation of the claimant’s evidence, the proper course in this
action is to remand the matter to the Commissioner for further
We express no opinion as to the proper outcome of
See SSA’s Substantial Gainful Activity calculator at
For the reasons expressed above, the ALJ’s determination that
Plaintiff was not totally disabled was based, in part, on the
ALJ’s erroneous Step One analysis.
Therefore, the Court will
reverse the decision of the Commissioner, and remand the matter
for further consideration consistent with this Opinion.
An accompanying Order will be issued.
Date: September 28, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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