holding “a rebuttable presumption against substantial gainful activity arises where [parties agree that] a disability claimant’s earnings are below the threshold set by the regulations”
How later courts described this case
- holding “a rebuttable presumption against substantial gainful activity arises where [parties agree that] a disability claimant’s earnings are below the threshold set by the regulations”
Written by the judges who cited it.
The opinion
Case: 24-11068 Document: 33-1 Page: 1 Date Filed: 06/17/2025
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 24-11068
Summary Calendar FILED
____________ June 17, 2025
Lyle W. Cayce
Billy Lee Brown, Clerk
Plaintiff—Appellant,
versus
Commissioner, Social Security Administration,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:23-CV-84
______________________________
Before Davis, Smith, and Higginson, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant Billy Lee Brown appeals the district court’s
judgment upholding the Commissioner’s denial of benefits from the Social
Security Administration (SSA). The administrative law judge (ALJ)
determined that Brown can still perform his past work and, thus, is not
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 24-11068 Document: 33-1 Page: 2 Date Filed: 06/17/2025
No. 24-11068
disabled. Because the ALJ’s decision is supported by substantial evidence,
we AFFIRM.
I.
In April 2020, Brown applied for a period of disability, disability
insurance benefits, and supplemental security income, alleging he became
disabled earlier that month. His applications were denied initially and upon
reconsideration. Brown then requested a hearing before an ALJ, which was
conducted in September 2022. The ALJ issued a decision on February 8,
2023, finding Brown not disabled under the Social Security Act. The ALJ
determined that Brown retained the residual functional capacity to perform
the full range of light work and could therefore return to either of his two
prior light-level jobs: a fast-food worker (DOT 311.472-010) and production
assembler (DOT 706.687-010). The Appeals Council denied Brown’s
request to review the ALJ’s decision, making it the final decision of the
Commissioner. 1
Brown timely sought judicial review of the agency’s decision. A
magistrate judge recommended affirming the ALJ’s decision. Over Brown’s
objections, the district court adopted the report and recommendation, and
upheld the agency’s denial of benefits. Brown filed a Rule 59(e) motion,
which the district court denied. This appeal followed.
II.
Our review of the agency’s determination is “highly deferential.” 2
We ask only whether it “is supported by substantial evidence on the record
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1
Sims v. Apfel, 530 U.S. 103, 106–07 (2000).
2
Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018) (quoting Perez v. Barnhart,
415 F.3d 457, 464 (5th Cir. 2005)).
2
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No. 24-11068
as a whole” 3 and whether the proper legal standards were applied. 4
Substantial evidence is “more than a mere scintilla”—“the threshold for
such evidentiary sufficiency is not high.” 5 “We will not ‘re-weigh the
evidence’ nor, in the event of evidentiary conflict or uncertainty, will we
‘substitute our judgment for the Commissioner’s, even if we believe the
evidence weighs against the Commissioner’s decision.’” 6
A disability determination under the Social Security Act requires a
five-step inquiry. 7 “If at any step a finding of disability or nondisability can
be made, the SSA will not review the claim further.” 8 Here, the ALJ
stopped at step four—“whether the claimant can still do his ‘past relevant
work.’” 9 Past relevant work includes that which was performed (1) at the
level of “substantial gainful activity”; (2) within the past 15 years; and
(3) long enough for the claimant to learn to do it. 10
Substantial gainful activity is work “done for pay or profit” that
involves “significant physical or mental activities.” 11 While earnings alone
_____________________
3
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366 (1998).
4
Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021); see also 42 U.S.C. § 405(g).
5
Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
6
Garcia, 880 F.3d at 704 (quoting Masterson v. Barnhart, 309 F.3d 267, 272 (5th
Cir. 2002)).
7
20 C.F.R. § 404.1520(a)(4) (2023) (five-step sequential process for disability
insurance benefits); id. § 416.920(a)(4) (parallel regulation for supplemental security
income).
8
Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
9
Webster, 19 F.4th at 718.
10
20 C.F.R. §§ 404.1560(b)(1) (2023) (amended 2024), 416.960(b)(1) (2023)
(amended 2024).
11
Id. §§ 404.1572, 416.972.
3
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No. 24-11068
may be a presumptive sign of substantial gainful activity, 12 the agency still
“considers all of the medical and vocational evidence” in a claimant’s file
when making this determination. 13
Brown contends that the ALJ erred by considering as past relevant
work his job as a fast-food worker. 14 He asserts that his earnings were too low
to qualify as substantial gainful activity. But Brown’s theory of error rests on
the mistaken assumption that the ALJ was presented an indisputable
earnings record for this job. After a careful look, we cannot say that was the
case. The record shows that Brown’s experience consists of employment at
Pizza Hut, where he earned $3,124.73 in 2017, $5,342.30 in 2018, and $89.44
in 2019. Based on these annual figures, Brown posits that his average monthly
earnings fell below the presumptive guidelines for substantial gainful activity
in each respective year. The problem here for Brown is that annual earnings
are averaged over the period he actually worked at Pizza Hut. 15
Take 2017 for example. That year, the agency’s earnings guidelines
set the presumptive floor for substantial gainful activity at $1,170.00 per
month. 16 If Brown worked at Pizza Hut for two months, he would’ve
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12
Copeland v. Colvin, 771 F.3d 920, 927 (5th Cir. 2014) (holding “a rebuttable
presumption against substantial gainful activity arises where [parties agree that] a disability
claimant’s earnings are below the threshold set by the regulations”).
13
20 C.F.R. §§ 404.1571, 416.971 (2023).
14
He also argues that his work as a production assembler was performed outside
the 15-year look-back window and, as such, was improperly considered by the ALJ. We
need not address this argument because Brown’s experience as a fast-food worker is
dispositive. See id. §§ 404.1560(c), 416.960(c) (directing agency to proceed to the fifth step
of the disability inquiry if it is determined that the claimant is incapable of performing “any
of [his] past relevant work” (emphasis added)).
15
Id. §§ 404.1574a(b), 416.974a(b).
16
SSA, Program Operation Manual Sys. (POMS) § DI-10501.015(B).
4
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No. 24-11068
averaged $1,562.37 per month (above the guidelines); but if he worked there
for three, he would’ve averaged $1,041.58 (below the guidelines). Because
Brown bore the burden of proof at this stage of the disability inquiry, and
offered no evidence as to which side of the floor he fell, we need not engage
in this averaging debate. 17 Therefore, the ALJ did not err in denying Brown
the benefit of the low-earnings presumption.
Nor was the ALJ’s decision lacking a substantial evidentiary basis.
The SSA regulations instruct claimants: “Even if the work you have done
was not substantial gainful activity, it may show that you are able to do more
work than you actually did.” 18 To that end, the ALJ was entitled to consider
other evidence in Brown’s file. 19 The ALJ’s decision explicitly states that a
“careful consideration of the entire record” was made. It also noted that
Brown: “has had other jobs” while his applications were pending, including
at a restaurant and convenience store; reported, “I’ve been working a lot,”
to his medical provider in March 2022; and “was recently released from
prison and is on parole.” Against this backdrop, the “existing administrative
record . . . contains ‘sufficien[t] evidence’” that “a reasonable mind might
accept as adequate to support [the ALJ’s] conclusion”: Brown’s fast-food
work was substantial gainful activity that he can still perform despite his
limitations. 20 The disability inquiry ends with this conclusion.
AFFIRMED.
_____________________
17
20 C.F.R. §§ 404.1512, 416.912 (2023).
18
Id. §§ 404.1571, 416.971.
19
Id.
20
Biestek, 587 U.S. at 102–03 (first alteration in original) (quoting Consol. Edison
Co., 305 U.S. at 229).
5