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Charles H. v. Berryhill

United States District Court, D. Maine

July 20, 2018

CHARLES H., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

         This 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.[2] 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.

         Pursuant 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.[3] 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).

         The 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).

         The ALJ 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), 416.972(b).

Gallant, 2010 WL 2927263, at *1.

         While a 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. § 404.1574(c)(2).

         I. Discussion

         To be 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 34.

         The ALJ 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.

         He 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 ...

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