# Curtain v. Commissioner of Social Security

> District Court, W.D. North Carolina · March 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10259602

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** March 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:22-cv-00063-FDW

NAPOLEON CURTAIN, )
)
Claimant, )
)
vs. )
) ORDER
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant. )
)

THIS MATTER is before the Court on Claimant Napoleon Curtain’s (“Claimant”) Motion
for Summary Judgment and Memorandum in Support (Doc. Nos. 9, 10), filed July 12, 2022;
Defendant Acting Commissioner of Social Security’s (the “Commissioner”) Motion for Summary
Judgment and Memorandum in Support (Doc. Nos. 11, 12), filed August 3, 2022; and Claimant’s
Response to Defendant’s Motion for Summary Judgment (Doc. No. 14), filed August 23, 2022.
Claimant, through counsel, seeks judicial review of an unfavorable administrative decision on his
appeal for Supplemental Security Income.
The motions are fully briefed and are now ripe for review. Having reviewed and considered
the written arguments, administrative record, and applicable authority, and for the reasons set forth
below, Claimant’s Motion for Summary Judgment is GRANTED; the Commissioner’s Motion for
Summary Judgment is DENIED; and the Commissioner’s decision is REMANDED.
I. BACKGROUND
On January 8, 2020, Claimant filed a Title II application for a period of disability and
disability insurance benefits alleging disability beginning April 1, 2012. (Tr. 10). After his
application was denied initially and upon reconsideration, Claimant requested a hearing by an
Administrative Law Judge (“ALJ”). The ALJ held a hearing on May 6, 2021, after which the ALJ
issued an unfavorable decision on May 26, 2021, finding Claimant not disabled under the Social
Security Act. (Tr. 10–29).
During the five-step sequential evaluation process for determining whether an individual
is disabled under the Social Security Act, the ALJ found at step one that Claimant has not engaged

in substantial gainful activity since April 1, 2012. (Tr. 12). At step two, the ALJ found Claimant
to have the following severe impairments: “diabetes mellitus; obesity; degenerative disc disease
of the cervical and lumbar spine; history of bilateral rotator cuff surgeries; and mild bilateral
osteoarthritis of the knees.” (Tr. 13). Assessing step three, the ALJ determined none of Claimant’s
impairments, nor any combination thereof, met or medically equaled one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14). Before proceeding to step four, the ALJ
found Claimant:

[H]ad the residual functional capacity to perform medium work as defined in 20
CFR 404.1567(c) except that he is limited to frequently climbing ramps and stairs;
occasionally climbing ladders but not ropes or scaffolds; frequent stopping; and
occasionally kneeling, crouching and crawling. He should never perform overhead
reaching but would be able to frequently reach in other directions with the bilateral
extremities; and frequently handle and finger bilaterally. He is to avoid exposure to
hazardous work tasks, such work at unprotected heights or with or near automated
moving machinery; and avoid word tasks involving concentrated occupational
exposures to dust, toxic or caustic odors and fumes as well as extremely hot, cold
or humid working environments.

(Tr. 16). The ALJ determined at step four that Claimant’s self-employed work as the owner of a
bar constituted substantial gainful activity under the second work comparability test outlined in 20
C.F.R. § 404.1575(a)(2)(ii). Additionally, the ALJ found Claimant could perform past relevant
work as a manager of a liquor establishment, and that this work did not require the performance
of work-related activities precluded by Claimant’s RFC. (Tr. 26).
Evaluating step five, the ALJ asked the vocational expert (“VE”) whether jobs exist in the
national economy for an individual with the claimant’s age, education, work experience, and
residual functional capacity (“RFC”). (Tr. 28). The VE testified that, given those factors, Claimant
“would be able to perform past relevant work as a Manager, Liquor Establishment both as
performed according to DOT and as actually performed by the claimant.” Id. Thus, the ALJ

concluded Claimant was not disabled as defined by the Social Security Act from April 1, 2012,
through December 31, 2019, the date last insured. (Tr. 29).
Claimant’s subsequent request for review by the Appeals Council was denied, and as a
result, the ALJ’s decision became the final decision of the Commissioner. (Tr. 1–3). Claimant has
exhausted all administrative remedies and now appeals to this Court pursuant to 42 U.S.C.
§ 405(g).
II. STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review
of a final decision of the Commissioner to: (1) whether substantial evidence supports the

Commissioner’s decision, Richard v. Perales, 402 U.S. 389, 401 (1971); and (2) whether the
Commissioner applied the correct legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). The district court
does not review a final decision of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343,
345 (4th Cir. 1986); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972). The court must uphold the decision of the Commissioner, even
in instances where the reviewing court would have come to a different conclusion, so long as the
Commissioner’s decision is supported by substantial evidence. Lester v. Schweiker, 683 F.2d 838,
841 (4th Cir. 1982).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)
(alteration and internal quotation marks omitted). “It consists of more than a mere scintilla of
evidence but may be less than a preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir.
2015) (internal quotation marks omitted). We do not reweigh evidence or make credibility

determinations in evaluating whether a decision is supported by substantial evidence; “[w]here
conflicting evidence allows reasonable minds to differ,” we defer to the ALJ’s decision. Johnson,
434 F.3d at 653.
“In order to establish entitlement to benefits, a claimant must provide evidence of a
medically determinable impairment that precludes returning to past relevant work and adjustment
to other work.” Flesher v. Berryhill, 697 F. App’x 212, 212 (4th Cir. 2017) (per curiam) (citing 20
C.F.R. §§ 404.1508, 404.1520(g)). In evaluating a disability claim, the Commissioner uses a five-
step process. 20 C.F.R. § 404.1520. Pursuant to this five-step process, the Commissioner asks, in
sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe

impairment; (3) had an impairment that met or equaled the severity of a listed impairment; (4)
could return to his past relevant work; and (5) if not, could perform any other work in the national
economy. Id.; see also Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017) (citing 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4)). The claimant bears the burden of proof at steps one through
four, but the burden shifts to the Commissioner at step five. See Lewis, 858 F.3d at 861; Monroe
v. Colvin, 826 F.2d 176, 179–80 (4th Cir. 2016).
“If the claimant fails to demonstrate she has a disability that meets or medically equals a
listed impairment at step three, the ALJ must assess the claimant’s residual functional capacity
(“RFC”) before proceeding to step four, which is ‘the most [the claimant] can still do despite [her
physical and mental] limitations [that affect h[er] ability to work].’” Lewis, 858 F.3d at 861–62
(quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)). In Lewis, the Fourth Circuit explained the
considerations applied before moving to step four:
[The RFC] determination requires the ALJ to “first identify the individual’s
functional limitations or restrictions and assess his or her work-related abilities on
a function-by-function basis, including the functions listed in the regulations.”
Mascio, 780 F.3d at 636 (internal quotation marks omitted); see also SSR 96-8p,
1996 WL 374184, at *1 (July 2, 1996). Once the function-by-function analysis is
complete an ALJ may define the claimant’s RFC “in terms of the exertional levels
of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996 WL
374184, at *1. See generally 20 C.F.R. §§ 404.1566, 416.967 (defining “sedentary,
light, medium, heavy, and very heavy” exertional requirements of work).

When assessing the claimant’s RFC, the ALJ must examine “all of [the claimant’s]
medically determinable impairments of which [the ALJ is] aware,” 20 C.F.R.
§§ 404.1525(a)(2), 416.925(a)(2), “including those not labeled severe at step two.”
Mascio, 780 F.3d at 635. In addition, he must “consider all [the claimant’s]
symptoms, including pain, and the extent to which [her] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence,”
20 C.F.R. §§ 404.1529(a), 416.929(a). “When the medical signs or laboratory
findings show that [the claimant has] a medically determinable impairment(s) that
could reasonably be expected to produce [her] symptoms, such as pain, [the ALJ]
must then evaluate the intensity and persistence of [the claimant’s] symptoms so
that [the ALJ] can determine how [her] symptoms limit [her] capacity for work.”
20 C.F.R. §§ 404.1529(c)(1).

Lewis, 858 F.3d at 862.
Proceeding to step four, the burden remains with the claimant to show he or she is unable
to perform past work. Mascio, 780 F.3d at 635. If the claimant meets their burden as to past work,
the ALJ proceeds to step five.
“At step five, the burden shifts to the Commissioner to prove, by a preponderance
of the evidence, that the claimant can perform other work that ‘exists in significant
numbers in the national economy,’ considering the claimant’s residual functional
capacity, age, education, and work experience.” [Mascio, 780 F.3d at 635 (quoting
20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2), 416.1429)]. “The Commissioner
typically offers this evidence through the testimony of a vocational expert
responding to a hypothetical that incorporates the claimant’s limitations.”

Monroe, 826 F.3d 176, 180 (quoting 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2), 416.1429).
If the Commissioner meets this burden in step five, the claimant is deemed not disabled
and the benefits application is denied. Id.
III. ANALYSIS
Claimant identifies two assignments of error on appeal: (1) the Acting Commissioner
Berryhill lacked statutory authority under the Federal Vacancy Reform Act (“FVRA”) to ratify the

appointment of Social Security Administration (“SSA”) ALJs in 2018;1 and (2) the ALJ
inconsistently found Claimant’s past work as a bar owner to not constitute substantial gainful
activity at step one, but then found it to be substantial gainful activity at step four. For the reasons
discussed below, the Court disagrees with Claimant as to assignment one of error and finds it
without merit. The Court does, however, agree with Claimant as to assignment two of error.
A. Constitutionality of Ms. Berryhill’s Appointment and Ratification
Claimant argues that then-Acting Commissioner Berryhill was not properly acting under
the FVRA when she ratified the appointment of the ALJ in this case because her tenure had
expired, such that the ratification of the ALJ was ineffective. Claimant urges the Court to rely on

Brian T.D. v. Kijakazi, 580 F.Supp.3d 615 (D. Minn. Jan. 20, 2022), rev’d sub nom. Dahle v.
Kijakazi, No. 22-1601, 2023 WL 2379383 (8th Cir. Mar. 7, 2023), in which a district court
concluded Ms. Berryhill could not serve as Acting Commissioner during the pendency of Mr.
Saul’s nomination because the initial 210-day acting service period lapsed before the submission

1 During the discussion of the FVRA, Claimant also challenges, pursuant to the Appointment Clause, Acting
Commissioner Berryhill’s ratification of the appointment of the ALJ in this case. However, in light of the Fourth
Circuit’s recent ruling in Brooks v. Kijakazi, and for the reasons cited therein, this argument fails. Brooks v. Kajakazi,
No. 21-2048, at *12–13 (4th Cir. Feb. 22, 2023) (finding that the ALJ’s second denial of benefits in 2019 was lawful
since she was “properly appointed to her position by virtue of the Commissioner’s 2018 ratification,” but remanding
because the ALJ’s initial denial in 2018 was flawed and Lucia v. SEC, 138 S.Ct. 2044 (2018), requires a new hearing
to cure the initial constitutional error). Here, the appointment of the ALJ was properly ratified when he denied
Claimant’s disability benefits claim in 2021. Brooks, No. 21-2048, at *12–13; see also Taylor v. Kijakazi, No.
1:21CV648, 2022 WL 4668273, at *12 (M.D.N.C. Aug. 2, 2022).
of his nomination in April 2018. Thus, the district court found Ms. Berryhill could not lawfully
ratify and approve the appointments of SSA ALJs as her own.
However, the Court disagrees with the Minnesota district court’s interpretation of the
FVRA, instead finding persuasive the interpretation and substantial analysis of other judges from
this Court and Circuit.2 Furthermore, since the filing of Claimant’s motion, the Eighth Circuit

reversed the Minnesota district court’s ruling and held “[t]he test and legislative history show the
intent of the legislative branch was to allow an individual to serve noncontinuously under
subsections 1 and 2 [of § 3346(a)].” Dahle, 2023 WL 2379383, at *3. The Court adopts and
incorporates the reasoning of a fellow judge in this District Court addressing the same
constitutional challenge to Ms. Berryhill’s appointment as Acting Commissioner and her
ratification of the SSA ALJs as her own. Williams v. Kijakazi, No. 1:21-CV-141, 2022 WL
2163008, at *2–4 (W.D.N.C. June 15, 2022) (unpublished) (finding the plain text of the FVRA,
the view of the Executive Branch, and the view of the Legislative Branch all agree Ҥ 3346(a)(2)
permits an acting official serving under the FVRA to serve during the pendency of a first or second

nomination even when that nomination was submitted after the initial 210-day period for acting
service has expired”).
The Court is persuaded that Claimant’s argument is without merit. Therefore, the final
decision of the ALJ is not constitutionally defective.

2 See, e.g., Williams v. Kijakazi, No. 1:21-CV-141, 2022 WL 2163008, at *2–4 (W.D.N.C. June 15, 2022); Taylor v.
Kijakazi, No. 1:21-CV-648, 2022 WL 4668273, at *9, (M.D.N.C. Aug. 2, 2022); Black v. Kijakazi, No. 1:21-CV-
322, 2022 WL 2977340, at *3 (W.D.N.C. July 27, 2022); Edwards v. Comm’r of Social Sec., No. 1:21-CV-00134,
2022 WL 3352298, at *4 (W.D.N.C); Call v. Comm’r of Social Sec., No. 5:21-CV-00145, 2023 WL 1093670, at *5
(W.D.N.C. Jan. 10, 2023); Stanley v. Kijakazi, No. 1:22-CV-43, 2023 WL 318581, at *12 (M.D.N.C. Jan. 29, 2023);
Allison v. Kijakazi, No. 1:21-CV-890, 2023 WL 143201, at *12 (M.D.N.C. Jan. 10, 2023); Huntsinger v. Comm’r of
Social Sec., No. 1:21-CV-00267, 2023 WL 1456187, at *4 (W.D.N.C. Jan. 4, 2023); Brooks v. Kijakazi, No. 1:21-
CV-609, 2022 WL 2834345, at *16 (M.D.N.C. July 20, 2022); Donta J. v. Saul, No. 2:20-CV-131, 2021 WL 3705145,
at *7 (E.D. Va. Apr. 2, 2021), adopted by 2021 WL 2711467 (E.D. Va. July 1, 2021); Taylor v. Saul, No. 1:16-CV-
00044, 2019 WL 1055098, at *4 (W.D. Va. Aug. 15, 2019).
B. SUBSTAINTIAL GAINFUL ACTIVITY
Claimant next argues the ALJ misapplied the regulations governing whether Claimant’s

self-employment income qualified as substantial gainful activity.3 The initial consideration at step
one of the five-step evaluation for determining a claimant’s disability is whether he is engaged in
substantial gainful activity, defined as “work activity that is both substantial and gainful.” 20
C.F.R. § 404.1572. Substantial work activity involves “significant physical or mental activities”
including part-time work and work that pays less or involves fewer responsibilities than previous
work. Id. § 416.972(a). “Gainful” work activity is “usually done for pay or profit.” Id.
§ 416.972(b).
For a self-employed claimant, the determination of whether work activity amounts to
substantial gainful activity must be evaluated under 20 C.F.R. § 404.1575, which provides three

tests. Id. § 404.1575(a)(2)(i)-(iii); see also SSR 83-34, 1983 WL 31256 (Jan. 1, 1983). Each of
these three tests “must be considered before it can be established that the self-employed person is
not or was not engaged in [substantial gainful activity].” SSR 83-34, 1983 WL 31256, at *2 (Jan.
1, 1983). The 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.

3 While Claimant does not expressly contest the ALJ’s application of 20 C.F.R. § 1575, Claimant’s arguments
regarding the ALJ’s inconsistent findings of substantial gainful activity, including the ALJ’s alleged insufficient
analysis, are all rooted in the ALJ’s application of the above-named regulation. As discussed above, it is within this
Court’s review power to assess the ALJ’s application of legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990).
(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 doing.

20 C.F.R. § 404.1575(a)(2). If the claimant has not engaged in substantial gainful activity under
Test One, then the ALJ will consider Tests Two and Three. Id. It is essential under all three tests
“that the evidence show not only what the individual’s activities have been since the alleged date
of disability onset, but also how such activities compare with those he or she performed before the
date.” SSR 83-34, 1983 WL 31256, at *2 (Jan. 1, 1983).
Here, as noted above, at step one the ALJ found that Claimant had “not engage[d] in
substantial gainful activity during the period from his alleged onset date of April 1, 2012 through
his date last insured of December 31, 2019.” (Tr. 12). In reaching this conclusion, the ALJ clearly
stated Claimant’s work as the owner of a bar for seven years after the alleged onset of disability
“satisfies the comparability of work activity test for constituting substantial gainful activity.” (Tr.
13). While the ALJ applied the full sequential evaluation process and discussed his analysis of the
comparability tests under step four, the ALJ explained at step one that an unfavorable outcome
would have been reached “regardless of the claimant’s substantial gainful activity.” Id. At step
four, the ALJ attempted to apply the comparability tests under 20 C.F.R. § 404.1575(a)(2) to
evaluate Claimant’s self-employment as potential substantial gainful activity. (Tr. 26–28). Though
the ALJ concluded Claimant’s “work activity as a Manager, Liquor Establishment satisfies the
comparability of work activity [] test and amounts to substantial gainful activity”, (Tr. 27–28), the
ALJ’s analysis is insufficient.4

4 The Court recognizes the Fourth Circuit, on occasion, will address additional assignments of error notwithstanding
an order to remand. See Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (noting that
“[n]ormally, our opinion would end here, and we would not go beyond ordering the ALJ to apply the regulation that
it failed to observe;” but then summarily directing the ALJ to provide a more detailed explanation as to other errors
Test One requires a two-part finding: a claimant renders services that are significant to the
operation and a claimant receives substantial income from the business. 20 C.F.R.
§ 404.1574(a)(2)(i) (emphasis added). In assessing whether Claimant received substantial income
from ownership of the bar, the ALJ reviewed Claimant’s Work History report, including financial
assistance Claimant received from family members to operate the bar, and Claimant’s earning

record, which indicated Claimant earned “only $5,976.59 in 2013, $3,553.00 in 2015, and
$3,027.00 in 2017.” (Tr. 27). While the ALJ’s assessment of Claimant’s work history and earnings
record may begin to address the question of whether Claimant gained substantial income from
owning the bar,5 the ALJ failed to evaluate how Claimant’s countable income compared to that
reflected in the Substantial Gainful Activity Earnings Guidelines, how Claimant’s income from
the bar compared to what Claimant made prior to becoming disabled, or how Claimant’s earnings
compared to an unimpaired self-employed bar owner. As for the Test One determination regarding
whether the services Claimant rendered were significant to the bar’s operation, the ALJ needed to
determine whether Claimant “contribute[d] more than half the total time required for management

of the business, or render[ed] management services for more than 45 hours a month regardless of
the total management time required by the business.” SSR 83-34, 1983 WL 31256, at *3 (Jan. 1,
1983). While the ALJ provides some discussion of the hours Claimant contributed to the bar, it

“in the interests of judicial efficiency . . . .”); Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012)
(citing Sharpe v. Dir., Office of Workers’ Comp. Programs, 495 F.3d 125, 134 n.16 (4th Cir. 2007) (providing
instructions for ALJ to follow on remand regarding issues not dispositive on appeal); Gordon v. Schweiker, 725 F.2d
231, 236 (4th Cir. 1984) (“Since the case must be reconsidered by the Secretary, we do provide some guidance as to
a matter very likely to arise at the hearing which will occur.”)). However, the Court declines to address whether it was
inconsistent or improper for the ALJ to conclude Claimant did not engage in substantial gainful activity at step one,
but then conclude at step four that Claimant’s work as a bar owner was substantial gainful activity. (Tr. 12–13, 27–
28).
5 A full analysis of the income a self-employed claimant receives from their business would include a comparison
between the average “countable income” gained from the business per month and the amount shown for the respective
calendar year in the Substantial Gainful Activity Earnings Guidelines. SSR 83-34, 1983 WL 31256, at *4 (Jan. 1,
1983). If the “countable income” does not average more than the amount in the Guidelines, the claimant’s livelihood
derived from the business should be compared to what the claimant had before becoming disabled or “that of
unimpaired self-employed individuals in his or her community engaged in the same or similar businesses.” Id.
was in his application of Test Two and not part of the requisite Test One. (Tr. 27). Thus, the ALJ
failed to properly apply Test One.
Under Test Two, the ALJ must determine whether Claimant’s work activity was
comparable to that of unimpaired individuals in the same community engaged in the same
business. 20 C.F.R. § 404.1574(a)(2)(ii). SSR 83-34 provides that “[d]evelopment must be

specific” with each work factor described in detail to show contribution to the business operation,
and “[g]eneral descriptions are considered inconclusive evidence for the point-by-point
comparison that is required.” SSR 83-34, 1983 WL 31256, at *9 (Jan. 1, 1983). In assessing
Claimant’s work activity as owner of the bar, the ALJ found Claimant’s work to satisfy the
comparability test and amount to substantial gainful activity. (Tr. 27–28). Noting Claimant’s
testimony that his job duties included “playing the music at the bar, making business decisions,
coordinating business activities, and handling all of the accounting, inventory, and bookkeeping
associated with the business”, the ALJ determined Claimant “demonstrated comparable skills,
duties and responsibilities” to “a full time Manager, Liquor Establishment.” (Tr. 27). The ALJ also

pointed to Claimant’s testimony that he “spent seven total hours per day working on his business”,
finding it comparable to the hours worked by a full-time manager of a bar. Id. However, in reaching
these conclusions, the ALJ did not discuss any specific information about unimpaired individuals
in similar businesses in Claimant’s community. At most, the ALJ’s opinion includes the exact
“general description” SSR 83-34 prohibits while remaining devoid of any comparison between
Claimant and a group of unimpaired persons of similar self-employment. Accordingly, substantial
evidence does not support the ALJ’s conclusion that Claimant engaged in substantial gainful
activity under Test Two.
For Test Three, the ALJ must determine whether Claimant’s work as a bar owner, if not
comparable to that of unimpaired persons of similar self-employment, was nevertheless worth
more than the yearly amount indicated on the Substantial Gainful Activity Guidelines considering
the benefit to the business or the standard salary for such duties. 20 C.F.R. § 404.1574(a)(2)(iii).
As stated above, all three tests must be considered before determining whether a self-employed

individual engaged in substantial gainful activity. SSR 83-34, 1983 WL 31256, at *2 (Jan. 1, 1983).
However, the ALJ did not conduct any analysis to determine what Claimant’s work activity was
worth either in terms of value to the bar or when compared to what an employee would be paid for
similar work. Therefore, the record provides insufficient evidence to determine whether Claimant
engaged in substantial gainful activity under Test Three.
The Court finds the ALJ incorrectly applied the three comparability of work activity tests
from 20 C.F.R. § 404.1575(a)(2)(i)-(iii). Because the ALJ failed to apply the correct legal standard,
the record provides insufficient evidence to support the ALJ’s findings. Therefore, the Court
REMANDS this case for further proceedings consistent with this Order.

IV. CONCLUSION
The Court explicitly notes that in ordering remand pursuant to sentence four of 42 U.S.C.
§ 405 (g), the Court does not take a position on the merits of Claimant’s application for disability
benefits. The Court finds the ALJ’s decision deficient for the reasons stated herein, and
consequently, that decision as written cannot stand. See, e.g., Newton v. Apfel, 209 F.3d 448, 455
(5th Cir. 2000) (“The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s
decision[.]” (citations omitted)). The Court notes that remand provides the opportunity for the ALJ
to modify any prior basis for the prior decision in the new decision issued upon remand. “Under
§ 405(g), ‘each final decision of the Secretary [is] reviewable by a separate piece of litigation,’
and a sentence-four remand order ‘terminate[s] the civil action’ seeking judicial review of the
Secretary’s final decision.” Shalala v. Schaefer, 509 U.S. 292, 299 (1993) (quoting Sullivan v.
Finkelstein, 496 U.S. 617, 624-25 (1990)).
IT IS THEREFORE ORDERED that Claimant’s Motion for Summary Judgment, (Doc.
No. 9), is GRANTED; the Commissioner’s Motion for Summary Judgment, (Doc. No. 11), is
DENIED; and the ALJ’s determination is REMANDED to the Commissioner for further
proceedings consistent with this ORDER.
IT IS SO ORDERED.

March 27, 2023

Frank D. Whitney é +3
United States District Judge ages

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10259602. Public record. Not legal advice.