The opinion
United States District Court
Middle District of Florida
Tampa Division
EDNA BRYANT,
Plaintiff,
v. NO. 8:18-cv-2087-T-PDB
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Order
Edna Bryant applied for supplemental security income, claiming she had
become disabled at age 52 from diabetes, high blood pressure, “thyroid problems,”
“bone problems,” “sinus problems,” neuropathy, arthritis, and arm pain. Tr. 204, 208,
224. She brings this action under 42 U.S.C. § 1383(c) for review of the denial of her
application, explained in a decision by an Administrative Law Judge (“ALJ”) dated
January 17, 2018, Tr. 27–44. The issue is straightforward: whether substantial
evidence supports the ALJ’s finding her past work as a housekeeper amounted to
substantial gainful activity.1 See Doc. 23 (her brief), Doc. 24 (Commissioner’s brief).
Standard
A court reviews the Commissioner’s factual findings for substantial evidence.
42 U.S.C. § 405(g). “Under the substantial-evidence standard, a court looks to an
existing administrative record and asks whether it contains sufficient evidence to
support the agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148,
1Summaries of the law and the administrative record are in the ALJ’s decision,
Tr. 27–44, and the parties’ briefs, Docs. 23, 24, and not fully repeated here.
1154 (2019) (internal quotation marks and alteration omitted). “[W]hatever the
meaning of ‘substantial’ in other contexts, the threshold for such evidentiary
sufficiency is not high.” Id. “Substantial evidence … is more than a mere scintilla. …
It means—and means only—such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
The substantial-evidence standard applies only to factual findings. Brown v.
Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). “[N]o similar presumption of validity
attaches to the … conclusions of law.” Id.
Law
To obtain benefits, a claimant must demonstrate she is disabled. 20 C.F.R.
§ 416.912(a). A claimant is disabled if she cannot “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.” 42 U.S.C. § 423(d)(1)(A);
accord 42 U.S.C. § 1382c(a)(3)(A).
The Social Security Administration (“SSA”) uses a five-step sequential process
to decide whether a person is disabled, asking (1) whether she is engaged in
substantial gainful activity, (2) whether she has a severe impairment or combination
of impairments, (3) whether the impairment meets or equals the severity of anything
in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App’x 1, (4) whether
she can perform any of her past relevant work given her residual functional capacity
(“RFC”), and (5) whether there are a significant number of jobs in the national
economy she can perform given her RFC, age, education, and work experience. 20
C.F.R. § 416.920(a)(4).
If the SSA finds at step four a claimant can do her past relevant work, the SSA
will determine she is not disabled. 20 C.F.R. § 416.960(b)(3). Past relevant work is
work a claimant has done “within the past 15 years, that was substantial gainful
activity, and that lasted long enough … to learn to do it.” Id. § 416.960.
Substantial gainful activity is work that “[i]nvolves doing significant and
productive physical or mental duties” and “[i]s done (or intended) for pay or profit.”
Id. § 416.910. Work may be substantial even if “done on a part-time basis or if [a
claimant] do[es] less, get[s] paid less, or [has] less responsibility” than when the
claimant worked before. Id. § 416.972(a). Work is gainful “if it is the kind of work
usually done for pay or profit, whether or not a profit is realized.” Id. § 416.972(b).
The burden of showing certain work experience is not past relevant work is on the
claimant. Barnes v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991).
The SSA uses “several guides” to determine if work is substantial gainful
activity. 20 C.F.R. § 416.974(a). The primary consideration is earnings derived from
work activity. Id. § 416.974(a)(1). The SSA explains to claimants: “Generally, if you
worked for substantial earnings, we will find that you are able to do substantial
gainful activity. However, the fact that your earnings were not substantial will not
necessarily show that you are not able to do substantial gainful activity.” Id. Other
considerations are amounts earned and whether the claimant is working in a
sheltered or special environment. Id. § 416.974(a)(2)–(3).
If a claimant worked continuously without significant change in work patterns
or earnings, the SSA averages earnings from the entire work period to determine
whether the work was substantial gainful activity. Id. § 416.974a(a). If a claimant’s
earnings levels change, the SSA will average earnings “separately for each period in
which a different substantial gainful activity earnings level applies.” Id.
§ 416.974a(b). “Earnings are generally averaged over the actual period of time in
which work was performed.” Social Security Ruling (“SSR”) 83-35, 1983 WL 31257,
at *1, 3 (Jan. 1, 1983) (providing example of claimant with reported earnings in one
year from January to August and identifying the “actual period of work involved” as
“the 8-month period from January through August”); accord Schlegel v. Comm’r of
Soc. Sec., No. 6:16-cv-1236-Orl-DCI, 2017 WL 2379811, at *2 (M.D. Fla. June 1, 2017)
(unpublished) (“A claimant’s average monthly earnings while doing prior work is
calculated by averaging the claimant’s earnings over the actual period of work
involved, not over the entire year.”).
For work after January 1, 2001, earnings show substantial gainful activity if
they “average more than the larger of: (A) [t]he amount for the previous year, or (B)
[a]n amount adjusted for national wage growth, calculated by [a set formula].” 20
C.F.R. § 416.974(b)(2)(ii). The SSA publishes the adjusted wage amounts in a chart
and through the Program Operations Manual System (“POMS”). See
https://www.ssa.gov/oact/cola/sga.html; POMS DI 10501.015. The monthly amount to
show substantial gainful activity for a non-blind claimant is $780 in 2002 and $900
in 2007.2 Id.
The SSA explains to claimants: “We do not usually consider that work you did
15 years or more before the time we are deciding whether you are disabled applies.”
20 C.F.R. § 416.965(a) (emphasis added). “A gradual change occurs in most jobs so
that after 15 years it is no longer realistic to expect that skills and abilities acquired
in a job done then continue to apply. The 15-year guide is intended to ensure that
remote work experience is not currently applied.” Id.
“In some cases work performed prior to the 15-year period may be considered
as relevant when a continuity of skills, knowledge, and processes can be established
between such work and the individual’s more recent occupations.” SSR 82-62, 1982
2If earnings are below the presumptive monthly amount, the SSA “will generally
not consider other information in addition to” earnings unless “there is evidence
indicating that [a claimant] may be engaging in substantial gainful activity or [is] in a
position to control when earnings are paid[.]” 20 C.F.R. § 416.974(b)(3)(i)-(ii). The SSA
may also consider the nature of the work, how well the claimant performs the work, if
the work is done under special conditions, and if the claimant is self-employed. 20 C.F.R.
§ 416.973.
WL 31386, at *2 (Jan 1., 1982). “The 15-year period is generally the 15 years prior to
the time of adjudication at the initial, reconsideration or higher appellate level.” Id.
“[T]he [15-]year limitation … does not create a prohibition against considering
work outside that period. Rather, [the Eleventh Circuit] has held that the limitation
merely creates a ‘presumption of inapplicability’ of skills and abilities acquired in
work performed outside the fifteen year period.” Barnes, 932 F.2d at 1358. The time
frame is “advisory in nature, and its purpose is to ensure that the ALJ does not use
an outdated job description in his determination of whether the claimant can perform
her past relevant work.” Waldrop v. Comm’r of Soc. Sec., 379 F. App’x 948, 952 (11th
Cir. 2010). A claimant “need not testify as to the specific dates that she performed
her past relevant work, as long as the time period during which she performed this
work is reasonably ascertainable from the record.” Id.
Administrative Record
During the administrative process, Bryant identified her past work as a hotel
housekeeper and explained she “cleaned the rooms.” See Tr. 214 (“Work History
Report” stating she worked in housekeeping for “hotels” from 1998 to 2007 and in
that job cleaned rooms); Tr. 274 (“Work Background” report stating she worked in
housekeeping for Marriott and Days Inn); accord Tr. 51–52 (administrative hearing
during which Bryant testified housekeeping is the only job she has ever done and
explained she cleaned hotel rooms, made beds, and vacuumed, usually for six to seven
hours daily but sometimes longer).
In a disability report, under “When did you stop working? (month/day/year)”
Bryant stated, “07/15/2007.” Tr. 208. In a September 2017 brief by her lawyer to the
ALJ before the administrative hearing, her lawyer wrote, “She last worked on July
15, 2007.”3 Tr. 276.
A “certified earnings record” reflects these total annual earnings:
Year Earnings
2002 $10,492.13
2003 $2293.45
2004 None
2005 $1823.39
2006 $2103.76
2007 $7214.47
Tr. 191–92.
A “detailed earnings query” lists places of employment and how much Bryant
earned from each employer. Tr. 195–98. In 2002, she worked for McKibbon Brothers,
Inc. Tr. 196. In 2007, she worked for Select Hotels Group LLC. Tr. 197. (The query
does not specify the actual time worked within the year.)
The ALJ conducted a hearing on September 18, 2017, Tr. 45–71, and issued a
decision on January 17, 2018, Tr. 27–44.
At step one, the ALJ found Bryant has not engaged in substantial gainful
activity since April 27, 2015, which is the date of her application. Tr. 32. The ALJ
found Bryant has the RFC to perform medium work with additional limitations. Tr.
35. At step four, the ALJ explained,
After reviewing the evidence, including the claimant’s earnings record,
the claimant’s testimony and reports to the state agency about work
activity, and the testimony of the vocational expert, the [ALJ] finds the
3This date is different than her alleged onset date of September 6, 2013 (one day
after an ALJ denied a previous application for benefits). See Tr. 103.
job/jobs identified by the vocational expert meet the criteria for past
relevant work.
Scott E. Brown, an impartial vocational expert, testified the claimant
had past relevant work as a cleaner/housekeeper, DOT #323.687-014,
light exertional level with an SVP of two (2). As required by SSR 82-62,
this work was substantial gainful activity, was performed long enough
for the claimant to achieve average performance, and was performed
within the relevant period.
… [A]fter a review of the evidence and a comparison of the physical and
mental demands of this past relevant work to the residual functional
capacity, [the ALJ] concurs with the testimony of the vocational expert
and finds that the claimant can perform past relevant work as a[]
cleaner/housekeeper, DOT #323.687-014, light exertional level with an
SVP of two[.]
Tr. 39–40.
Argument & Analysis
Bryant contends that in the 15 years before final adjudication (the ALJ’s
January 2018 decision)—between 2003 and 2018—her monthly earnings were below
the amount presumed for substantial gainful activity.4 Doc. 23 at 6. She adds, “Of
note, at the time of the [ALJ] hearing, the claimant did work at a substantial gainful
activity bas[i]s within the 15 years prior to the date of the hearing. However, the
regulations direct the [ALJ] to consider the 15 years prior to the date of adjudication,
not the 15 years prior to the date of the hearing or the date of the application.
Therefore, by the time the decision was made, claimant’s past work as a hotel
4Bryant states, “Although the claimant indicated that she worked as a hotel
housekeeper from 1998 through 2007, it is clear that she did not work on a consistent
basis. Her earnings from January 2003 through January[] 2018 never rose to the level
which is considered substantial gainful activity, and therefore, cannot be considered past
relevant work.” Doc. 23 at 6. The regulation discussing the 15-year time limit adds that
if a claimant has “no work experience or worked only off-and-on for brief periods of time
during the 15-year period, [the SSA] generally considers that these do not apply.” 20
C.F.R. § 416.965. Bryant does not appear to argue that her activity was so inconsistent
as to constitute a “off-and-on” work for brief periods of time, arguing only that her
earnings were too low. See Doc. 23 at 6.
housekeeper was no longer past relevant work.” Doc. 23 at 6. As the Commissioner
observes, Doc. 24 at 4–5, this presumably relates to Bryant’s 2002 earnings of
$10,492.13, which, when divided by the maximum number of 12 months (the actual
months she worked that year are unknown), exceeds the monthly substantial-gainful-
activity amount of $780 (averaging $874.36 a month).
The Commissioner argues affirmance is warranted for three reasons. Doc. 24.
First, the Commissioner argues Bryant’s 2007 earnings (within 15 years of the
ALJ’s decision) exceed the substantial-gainful-activity amount of $900, observing
that Bryant, by her own representations in the record, worked only half the year in
2007 (until July 15), not the whole year, increasing her monthly average to above
$900. Doc. 24 at 4–5.
The Commissioner is correct. Substantial evidence (Bryant’s representation in
the disability report, Tr. 208, corroborated by her lawyer’s statement in the brief to
the ALJ, Tr. 276) supports that Bryant stopped working on July 15, 2007. The dates
she worked are “reasonably ascertainable from the record,” see Waldrop, 379 F. App’x
at 952, and nothing is in the record to suggest otherwise.
Using “the actual period of time in which work was performed,” see SSR 83-35,
1983 WL 31257 at *1 (quoted), Bryant’s 2007 earnings ($7214.47) divided by six-and-
a-half months equals a monthly average of $1109.92, exceeding the presumptive
substantial-gainful-activity amount of $900, see POMS DI 10501.015.
Second, the Commissioner argues that, aside from the 2007 earnings,
substantial evidence supports the ALJ’s finding of past relevant work because
Bryant’s 2002 earnings (which she concedes exceed the substantial-gainful-activity
amount, Doc. 23 at 6) could be properly considered. Doc. 24 at 5–6.
The Commissioner is correct. On these facts, considering that the 15-year limit
is a presumption, not a prohibition, see Barnes, 932 F.2d at 1358, and that the reason
for the limit is “to ensure that remote work experience is not currently applied,” 20
C.F.R. § 416.965(a), consideration of Bryant’s 2002 work is not improper. The ALJ
made the decision only 17 days after the 15-year period, the ALJ relied on hearing
testimony provided within the 15-year period, Bryant claimed disability beginning
within the 15-year period, and skills for housekeeping (cleaning rooms, vacuuming,
making beds, see Tr. 52) would not have eroded in 17 days.
Because affirmance is warranted for either reason, the Court need not address
the Commissioner’s third argument (earnings are not dispositive and the evidence
shows Lewis engaged in significant mental and physical activities for profit).5 Doc.
24 at 6-8.
Conclusion
The Court affirms the Commissioner’s decision and directs the clerk to enter
judgment for the Commissioner and against Edna Bryant and close the file.
Ordered in Jacksonville, Florida, on September 30, 2019.
PATRICIA D. BARKSDALE
United States Magistrate Judge
Cc: Counsel of record
5'The Commissioner also argues Bryant failed to offer any evidence against a past-
relevant-work finding at the administrative hearing to satisfy her burden. Bryant
concedes she had performed past relevant work at the time of the hearing and would
have had no reason to address it then. See Doc. 24 at 7-8.