Opinion

Bryant v. Commissioner of Social Security

Court
District Court, M.D. Florida
Filed
Sep 30, 2019
Cited by
0 cases
Authority
More cited than 19.7%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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