United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH III UNITED STATES MAGISTRATE JUDGE
Child's Disability Benefits (“CDB”) appeal
raises the question of whether the administrative law judge
(“ALJ”) supportably found that the plaintiff was
not disabled because he engaged in substantial gainful
activity (“SGA”) after September 29, 1992, his
alleged onset date of disability. The plaintiff seeks remand
on the bases that the ALJ failed to develop the record
properly and find that the jobs at issue constituted
unsuccessful work attempts. See Plaintiff's
Itemized Statement of Errors (“Statement of
Errors”) (ECF No. 15) at 2-7. I agree that the
ALJ's finding is unsupported by substantial evidence and,
accordingly, recommend that the court vacate the
commissioner's decision and remand this case for further
proceedings consistent herewith.
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; Goodermote v. Sec'y of Health
& Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
ALJ found that the plaintiff had not attained age 22 as of
September 29, 1992, his alleged onset date of disability,
Finding 1, Record at 14; that he had engaged in SGA since the
alleged onset date, Finding 2, id.; and that he,
therefore, had not been disabled at any time prior to
December 19, 1993, the date that he attained age 22, Finding
3, id. at 15. The Appeals Council declined to review the
decision, id. at 4-6, making the decision the final
determination of the commissioner, 20 C.F.R. § 404.981;
Dupuis v. Sec'y of Health & Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. § 405(g); Manso-Pizarro v.
Sec'y of Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind
might accept as adequate to support the conclusion drawn.
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981).
reached Step 1 of the sequential evaluation process. At Step
1, the claimant bears the burden of rebutting the presumption
that he engaged in SGA based on his earnings. Bell v.
Comm'r of Soc. Sec., 105 F.3d 244, 246 (6th Cir.
1996); see also, e.g., Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Gallant v.
Astrue, Civil No. 09-357-P-S, 2010 WL 2927263, at *1 (D.
Me. July 20, 2010) (rec. dec., aff'd Aug. 10,
2010). At Step 1, “if the applicant is engaged in
substantial gainful work activity, the application is
denied[.]” Purdy v. Berryhill, 887 F.3d 7, 10
(1st Cir. 2018) (citation and internal quotation marks
omitted); see also, e.g., 20 C.F.R. § 404.1571.
Work is considered “substantial” if it
“involves doing significant physical or mental
activities.” 20 C.F.R. §§ 404.1572(a),
416.972(a). “[W]ork may be substantial even if it is
done on a part-time basis or if [a claimant] do[es] less,
get[s] paid less, or [has] less responsibility than when [he
or she] worked before.” Id. “Work
activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is
realized.” 20 C.F.R. §§ 404.1572(b),
Gallant, 2010 WL 2927263, at *1.
claimant's earnings are “[t]he primary
consideration in determining whether particular work
constituted [SGA][, ]” Knudsen v. Colvin, No.
2:14-cv-155-JHR, 2015 WL 1505689, at *9 (D. Me. Apr. 1,
2015), “earnings from an unsuccessful work attempt
[UWA] will not show that [a claimant is] able to do [SGA][,
]” 20 C.F.R. 404.1574(a)(1). However, work lasting six
months or less constitutes a UWA only if, (i) prior to the
UWA, there is “a significant break in the continuity of
[the claimant's] work[, ]” meaning that the
claimant was out of work for at least 30 consecutive days or
was forced because of his or her impairment to change to
another type of work or another employer, and (ii) the
claimant “stopped working or . . . reduced [his or her]
work and earnings below the [SGA] earnings level because of
[his or her] impairment or because of the removal of special
conditions” that took the impairment into account and
“permitted [the claimant] to work.” Id.
entitled to a CDB award on the earnings record of a wage
earner, a claimant who is over 18 and not a full-time student
must demonstrate that he or she was disabled before he or she
turned 22 “and was continuously disabled from the date
of [his or] her twenty-second birthday through the date that
[he or] she applied for benefits.” Starcevic v.
Comm'r of Soc. Sec., No. 08-13128, 2009 WL 2222631,
at *6 (E D. Mich. July 22, 2009). See also 20 C.F.R.
§ 404.350. The plaintiff applied for CDB on the earnings
record of his father in 2010, after his father passed away.
See Statement of Errors at 1. He alleged that he had
suffered a disabling brain injury in a car accident prior to
his 22nd birthday, in September 1992. See Record at
determined that the plaintiff's earnings record showed
that he had wages above the SGA threshold in 1997 and 1998,
of $6, 753 and $5, 271, respectively. See Id. at 14.
He noted that the plaintiff reported that he had worked at
two jobs (Hudson Trail Outfitters and Johnson[']s
Landscaping Service) for approximately seven months in 1997
and, although precise dates were indeterminate and requests
to employers received no response, even if he had worked for
that entire year, his average earnings from both jobs would
have exceeded the $500 monthly SGA threshold. See
id.; see also id. at 24-25. He observed that
the plaintiff had also reported work in 1998 for
“‘3-4 months' at Annie's Discount
Cleaners ($3, 300.00 earned) and ‘about 1½
months' at Kids, Inc. ($1, 087.00 earned)[, ]” also
above the SGA threshold. Id. at 14; see also
id. at 24.
acknowledged that the plaintiff's counsel had argued that
“this activity is an unsuccessful work attempt”
but disagreed, explaining:
First, the record, as just cited, reveals more than 6
months' work activity, while the [plaintiff] also went on
to work over several months in 1999 and 2000. Second, there
is not substantive evidence to show the [plaintiff] stopped
work because of an impairment. For the above cited jobs, [he]
reportedly stopped work for reasons unrelated to a severe
impairment; i.e. he left Annie's Cleaners because he
moved; work at Kids' Inc. was seasonal and ended; he
could not make sales' quota at Hudson Outfitters and was
in a minor car accident while on the job at Johnson's.
Accordingly, in the absence of objective evidence from the
cited employers indicative of unsatisfactory work
performance, or the placement of special work conditions
related to the [plaintiff's] impairment, I do not ...