United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison U.S. Magistrate Judge.
Plaintiff Robert R.'s application for disability
insurance benefits under Title II of the Social Security Act,
Defendant, the Social Security Administration Commissioner,
found Plaintiff not disabled at step 1 of the sequential
evaluation process. In denying Plaintiff's application,
the ALJ found that in each year after Plaintiff's alleged
onset date, Plaintiff's engaged in substantial gainful
activity. Plaintiff filed this action to obtain judicial
review of Defendant's final administrative decision
pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the September 26, 2017,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2.) Plaintiff alleged the onset of disability
beginning September 1, 2014. In 2015, 2016, and 2017,
Plaintiff fished for elvers and caught his licensed limit of
16.8 pounds. (R. 15, 18.) In 2015, Plaintiff earned $9, 869
from fishing. Because the season begins in March and ends in
May, the ALJ divided the revenue by three months for an
average monthly revenue of $3, 289.66. (R. 18.)
Plaintiff's revenue in 2016 is not established on the
record, though he did catch his limit. In 2017, Plaintiff
again caught the limit and the market price Plaintiff
received for elvers ranged between $800 and $1700 per pound.
(R. 18.) Employing the $800 per pound rate, the ALJ
calculated a net monthly revenue of $4, 480 for March, April
and May of 2017. (Id.) Plaintiff does not dispute
the monthly income calculated by the ALJ, and he does not
challenge the ALJ's finding that his revenue in 2016 was
similar to 2015 and 2017. (R. 19.)
to Defendant's regulations, a claimant will be found not
disabled at step 1 of the sequential evaluation process if
the record establishes that the claimant has engaged in
substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). Claimants are advised: “If you are
working and the work you are doing is substantial gainful
activity, we will find that you are not disabled regardless
of your medical condition or your age, education, and work
experience.” Id. § 404.1520(b). The
regulations define “substantial” activity as
“work activity that involves doing significant physical
or mental activities.” Id. § 404.1572(a).
Work “may be substantial even if it is done on a
part-time basis.” Id. Work is
“gainful” if it is performed for pay or profit.
Id. § 404.1572(b). The amount of time devoted
to the work activity is not controlling; the regulations
require the adjudicator to determine whether the work was
substantial and gainful. Id. § 404.1573(e). A
claimant is more likely to be found to have performed
substantial gainful activity if the claimant's work
activity entails “experience, skill, supervision, and
responsibilities, or contributes substantially to the
operation of a business.” Id. §
regulations distinguish between self-employed work activity
and work for wages. Compare Id. § 404.1574
and 404.1575. If a claimant is self-employed, such
as Plaintiff, Defendant “will consider [the
claimant's] activities and their value to [the] business
to decide whether [the claimant has] engaged in substantial
gainful activity.” 20 C.F.R. § 404.1575(a)(2). The
relevant regulation provides that Defendant “will not
consider … income alone because the amount of income
… may depend on a number of factors, ” i.e.,
factors other than substantial activity. Id. The
regulations contemplate a three-test assessment, provided,
however, that two of the tests are unnecessary if the first
test resolves the issue. Id.
tests are as follows:
(i) Test one: You have engaged in substantial gainful
activity if you render services that are significant to the
operation of the business and receive a substantial income
from the business. Paragraphs (b) and (c) of this section
explain what we mean by significant services and substantial
income for purposes of this test.
(ii) Test Two: You have engaged in substantial gainful
activity if your work activity, in terms of factors such as
hours, skills, energy output, efficiency, duties, and
responsibilities, is comparable to that of unimpaired
individuals in your community who are in the same or similar
businesses as their means of livelihood.
(iii) Test Three: You have engaged in substantial gainful
activity if your work activity, although not comparable to
that of unimpaired individuals, is clearly worth the amount
shown in § 404.1574(b)(2) when considered in terms of
its value to the business, or when compared to the salary
that an owner would pay to an employee to do the work you are
Id. Paragraphs (b) and (c), referred to in the first
test, explain that if the claimant is not a “farm
landlord” and “operate[s] a business by
[him]self, any services that [he] render[s] are significant
to the business.” Id. 404.1575(b)(1).
Additionally, net income less certain special expenses (not
applicable in this case) is substantial for social security
purposes if, when averaged, it exceeds an amount determined
in the regulations. Id. § 404.1575(c)
(referring to §§ 404.1574a,
must affirm the administrative decision provided the decision
is based on the correct legal standards and is supported by
substantial evidence, even if the record contains evidence
capable of supporting an alternative outcome.
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales,402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial ...