The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALLISON E. MOSHER, )
)
Plaintiff, )
)
v. ) Case No.: 2:18-cv-935-WC
) [WO]
ANDREW SAUL,1 )
Commissioner, Social Security )
Administration )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Allison E. Mosher (“Mosher” or “Plaintiff”) filed a Title II for Social Security
Disability Child’s Insurance (“SSDI”) on February 9, 2015. R. 14. The application was
denied at the initial administrative level. Plaintiff then requested and received a hearing
before an Administrative Law Judge (“ALJ”) on November 8, 2016. R. 27, 31–42.
Following the hearing, the ALJ issued an unfavorable decision, and the Appeals Council
denied Plaintiff’s request for review on July 24, 2018. R. 11–17. The ALJ’s decision
consequently became the final decision of the Commissioner of Social Security
(“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case
1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party
pursuant to Fed. R. Civ. P. 25(d). See also §205(g) of the Social Security Act, 42 U.S.C. § 405(g) (action
survives regardless of any change in the person occupying the office of Commissioner of Social Security).
2 Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-
296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.
is now before the court for review of that decision under 42 U.S.C. § 405(g). Pursuant to
28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry
of a final judgment by the undersigned United States Magistrate Judge. Pl.’s Consent to
Jurisdiction (Doc. 16); Gov’t’s Consent to Jurisdiction (Doc. 15). After careful scrutiny of
the record and the parties’ briefs, and for the reasons herein explained, the Court AFFIRMS
the Commissioner’s decision.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983).
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a fact,
and must include such relevant evidence as a reasonable person would accept as adequate
to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing
Richardson v. Perales, 402 U.S. 389 (1971)); Foote, 67 F.3d at 1560 (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)).
The Court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must
defer to the Commissioner’s decision if it is supported by substantial evidence.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius
v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the
Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act provides child disability insurance benefits for a disabled
adult child relying on the earnings record of an individual who is “entitled to old-age or
disability benefits, or [. . .] dies a fully or currently insured individual.” 42 U.S.C. § 402(d);
20 C.F.R. § 404.350(a). There are several criteria that must be met to qualify for child
insurance benefits as a disabled adult. 20 C.F.R. § 404.350(a)(1)–(5). Relevant to this case,
if the claimant is over 18, the claimant must be unmarried and “have a disability that began
before [she] became 22 years old.”3 Id. at § 404.350(a)(4), (5); 42 U.S.C. § 402(d)(1)(B).
“An individual shall be determined to be under a disability only if [her] physical or mental
impairment or impairments are of such severity that [s]he is not only unable to do [her]
previous work but cannot, considering [her] age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the national economy.” 42
U.S.C.A. § 423(b)(2)(A) (West). “[A] ‘physical or mental impairment’ is an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”
The Commissioner of Social Security employs the same five-step, sequential
evaluation process in determining the disability of a child who was under a disability after
age 18 but prior to age 22 that is used to determine whether adult claimants are entitled to
benefits. See 20 C.F.R. §§ 404.1520, 416.920 (2010).
(1) Has the claimant engaged in substantial gainful activity?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
3 Mosher is unmarried, and the relevant earnings record relied upon in this case is that of
Mosher’s father. R. 332–33.
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying for disability once they meet the burden of proof from Step 1 through Step 4.
At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other evidence.
Id. It also can contain both exertional and nonexertional limitations. Id. at 1242–43. At
the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience
to determine if there are jobs available in the national economy the claimant can perform.
Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”)
or hear testimony from a vocational expert (“VE”). Id. at 1239–40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
IV. PLAINTIFF’S CLAIMS
Plaintiff presents one issue for the Court to consider in its review of the
Commissioner’s decision: Was the Commissioner’s determination that the Plaintiff’s
employment with UAB was “substantial gainful activity” contrary to Regulations §
404.1572 and § 404.1573(c). Doc. 12 at 1.
V. DISCUSSION
Allison Mosher turned 22 years old on November 2, 1999, and was 40 years old at
the time of the ALJ’s decision. R. 14–15. She was employed by the University of Alabama
at Birmingham (“UAB”) from 2006 through 2009. During these years of employment,
Mosher earning $11,259.14 in 2006, $27,806.76 in 2007, $29,308.43 in 2008, and
$21,928.39 in 2009. R. 15. The ALJ noted that
the records of the Social Security Administration (“SSA”) do show that
claimant had protectively filed an application for supplemental security
income (SSI) on February 28, 2002. At the time of filing, she was age 24. On
August 8, 2002, SSA found her disabled. Her first monthly payment was
made in March 2002. Her SSI payments were discontinued during her work
activity in years 2006–2009.
R. 15 n.1 (citations omitted).
The SSA denied Mosher’s application “at the initial and reconsideration levels
because she had engaged in substantial gainful activity.” R. 14. Following an
administrative hearing, the ALJ found at Step One that the “SSA properly denied claimant's
application for child disability benefits based upon substantial gainful activity.” R. 15. The
ALJ explained that “[u]nder agency policy, in an initial application for child disability
benefits, if an applicant has never been entitled to child disability benefits and the onset
date cannot be established prior to age 22 because substantial gainful work activity was
performed after age 22, the claim will be denied for substantial gainful activity purposes.”
R. 15 (citing POMS § DI 10115.022).
Substantial gainful activity (“SGA”) is simply defined as “work activity that is both
substantial and gainful.” 20 C.F.R. § 404.1572. “Substantial work activity is work activity
that involves doing significant physical or mental activities.” 20 C.F.R. § 404.1572(a).
“Gainful work activity is work activity that [is done] for pay or profit” and includes any
“kind of work usually done for pay or profit, whether or not a profit is realized.” 20 C.F.R.
§ 404.1572(b). The Commissioner uses “several guides” in determining whether the work
done by a claimant qualifies as SGA. 20 C.F.R. § 404.1572. A claimant’s earnings are a
primary measure in determining if they are engaged in SGA. 20 C.F.R. § 404.1572(a)(1).
To start, the Commissioner considers the amount earned by a claimant and if it exceeds the
guidelines. 20 C.F.R. § 404.1572(a)(1). Next, the Commissioner determines if the
claimant’s earnings “exceed the reasonable value of the work [performed],” and if it is
determined that the claimant’s earnings are subsidized, the amount of the subsidy is not
considered in determining if the work activity meets the SGA threshold. 20 C.F.R. §
404.1572(a)(2). Finally, the Commissioner determines if the claimant is “working in a
sheltered or special environment.” 20 C.F.R. § 404.1572(a)(3).
The ALJ found that Mosher is “presumed to have engaged in [SGA] if, in 2006, her
averaged monthly earnings exceeded $860.00; in 2007, $900.00; in 2008, $940.00; and in
2009, $980.00. R. 15 (citing Program Operations Manual System (“POMS”) DI
10501.015). The ALJ held that “[b]ased upon her earnings, claimant’s work activity in
these years fall above SGA.” The ALJ noted that Mosher attempted to rebut the
presumption by alleging that her earnings were subsidized by UAB and that her position
qualified as a sheltered workshop. R. 15.
A. Subsidized Position
Although Mosher does not directly address the Commissioner’s decision that she
failed to meet her burden of proof that her position was subsidized, she does present the
question, generally, of whether her position with UAB should be considered substantial
gainful activity. Accordingly, the Court will address the subsidy issue out of an abundance
of caution. The ALJ stated that an “employer who wants to subsidize the earnings of a
worker with a serious medical impairment may designate a specific amount as such, after
figuring the reasonable value of the employee’s services.” R. 15. However, the ALJ found
that Mosher had failed to provide any information from UAB, or otherwise, that her
earnings were subsidized or the amount of said subsidy. R.15 (citing POMS DI 10505.010).
The ALJ sent the work activity questionnaire, Form SSA-3033-BK, to UAB as well as to
Michelle Nault (“Ms. Nault”), Mosher’s former supervisor, on June 17, 2017, and again on
July 25, 2017. The ALJ never received a completed form from either UAB or Ms. Nault.
Thus, after considering Mosher’s testimony and the “other evidence that might suggest a
subsidy” the ALJ was unable to conclude that Mosher’s position was subsidized by UAB
and held that Mosher failed to meet her burden. R. 15.
On August 6, 2018, counsel for the Plaintiff submitted two copies of the work
activity questionnaire to the Appeals Council that were completed by Ms. Nault and
Gregory Carlson, the Business Officer at UAB. R. 305–09. The Appeals Council denied
Mosher’s request for review on September 27, 2018. R. 4. The Appeals Council
specifically discussed the work activity questionnaires and found that they do “not show a
reasonable probability that it would change the outcome of the decision.” R. 5. The
Appeals Council stated that “Mr. Carlson is a business officer for the University of
Alabama at Birmingham. [The questionnaire] has little probative value since he did not
supervise the claimant while she worked there.” R. 5. Additionally, the Appeals Council
found that the “questionnaire completed by Ms. Nault is inconsistent with her evaluation
of the claimant’s work from August 2007 through August 2008 in which she stated that the
claimant frequently exceeded the standard level of performance and to which she attached
a list of the claimant’s accomplishments since she was hired in August 2006.” R. 5.
“[N]ew evidence first submitted to the Appeals Council is part of the administrative
record that goes to the district court for review when the Appeals Council accepts the case
for review as well as when the Council denies review.” Keeton v. Dep’t of Health & Human
Servs., 21 F.3d 1064, 1067 (11th Cir. 1994). “When a claimant properly presents new
evidence to the AC and it denies review, we essentially consider the claimant’s evidence
anew to determine whether ‘that new evidence renders the denial of benefits erroneous.’”
Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 903 (11th Cir. 2011) (quoting Ingram v.
Comm’r, 496 F.3d 1253, 1262 (11th Cir. 2007). Here, Plaintiff properly presented new
evidence to the Appeals Council, and the Appeals Council reviewed the newly submitted
evidence. The Appeals Council declined remand because it found the newly submitted
evidence was not probative and was inconsistent with the record. It should also be noted
that in Mr. Carlson’s questionnaire, he stated that UAB did not pay Mosher “more per hour
than you would another employee in a similar position.” R. 307. Thus, even if his opinion
was probative, he stated that Mosher’s position was not subsidized. This evidence directly
conflicts with Ms. Nault’s questionnaire, in which she states that the position was
subsidized by approximately $5 per hour. The Appeals Council did not err in refusing to
remand the case to the ALJ based on the newly submitted evidence because the Appeals
Council’s finding that the evidence was not probative and inconsistent with the record, as
well as the conflicting nature of the questionnaires, did not render the denial of benefits
erroneous.
B. Sheltered Workshop
Mosher argues that the ALJ’s opinion is due to be reversed because the evidence in
this case “clearly demonstrates that the employment at UAB was not competitive
employment, and was part of a sheltered workshop.” Doc. 12 at 3. Mosher asserts that her
position required the diagnosis of a severe mental illness, was funded by a grant that
required the diagnosis of a severe mental illness, was part of her own mental illness therapy,
and was allotted certain accommodations such as the ability to take a nap in her office,
absences from work up two days per week, and excusal from attending business meetings.
Doc. 12 at 3–4.
The ALJ addressed each piece of evidence in turn. First, the ALJ found that UAB’s
records do not support Mosher’s testimony that a diagnosis of a severe mental illness was
required to qualify for the position. R. 15. The ALJ reviewed Mosher’s UAB application,
dated May 3, 2006, and UAB’s “position request form,” which both indicate that she was
applying for a “Case Manager” position. R. 15–16. The documents also indicate that the
position was being “refilled due to vacancy,” and that the “qualifications for this job
required the applicant to have a bachelor’s degree in mental health or human services with
experience with criminal justice or drug treatment preferred.” R. 16. Additionally, the ALJ
found nothing in UAB’s position request form “requiring the applicant to have a diagnosis
of severe mental illness.” R. 16.
Next, regarding the special accommodations, the ALJ found that “the record does
not tend to support special work accommodations throughout her employment.” R. 16. The
ALJ noted that the record indicates Mosher’s claimed accommodation of resting/napping
was done so during her lunch or other breaks or by use of her accumulated leave time, and
thus, it was not a special accommodation, but rather it was “off time from job duties legally
available to all employees.” R. 16. The ALJ also found that Mosher’s UAB leave accrual
summary does not support the assertion that she missed two days of work per week. R. 16.
The ALJ pointed out that UAB’s 2009 leave accrual summary indicates that:
as of September 17, 2009, [the leave accrual summary] shows that claimant
had used no leave time in January 2009, 3 days of sick leave in February
2009, 1 day of sick leave in March 2009, 1 day of vacation leave and 1 day
of sick leave in April 2009, no leave in May 2009, 7.39 days of vacation
leave and 1.61 days of sick leave in June 2009, 1 day of vacation leave and
.50 day of sick leave in July 2009, and .20 day of vacation leave, 3 days of
personal holiday leave and 1.18 days of sick leave in August 2009.
R. 16, 114. Further, “[a]s to being excused from staff meetings, UAB records do show that
this work restriction was approved on June 25, 2009, but it was put into place near the end
of claimant's employment. It appears that on August 3, 2009, this restriction ended.” R.
16.
The ALJ also reviewed the letter and the questionnaire submitted by Ms. Nault, and
found it “unpersuasive due to inconsistencies in the record.” R. 16, 67–68, 266–68. For
example, the ALJ noted that Mosher’s performance appraisal forms completed by Ms.
Nault “show that claimant met standard level of performance or frequently exceeded
standard level of performance.” R. 16. In Mosher’s August of 2008 performance review,
Ms. Nault noted that Mosher “had done a ‘great job’ representing UAB as a certified peer
specialist,” and attached two pages of Mosher’s accomplishments. R. 16, 195–99. The
ALJ found that these performance reviews conflict with Ms. Nault’s letter stating that
Mosher would exhibit “significant performance issues” and that “work stressors”
exacerbated her mental illness symptoms. R. 67.
Finally, the ALJ noted that Ms. Nault’s questionnaire indicates that Mosher’s levels
of stress increased toward the end of her employment due to issues with a co-worker that
ultimately resulted in Mosher filing sexual harassment and hostile work environment
charges against UAB. R. 17, 268. “Prior to 2009, UAB records do not reflect any
significant problems in claimant’s job performance or in her relationship with coworkers
or supervisors. Nor do they reflect any need for special work accommodations. Her
employment ended on August 31, 2009, due to lack of job funding.” R. 17.
As previously stated, the burden of proof rests on a claimant through Step 4. See
Phillips, 357 F.3d at 1237–39 (11th Cir. 2004). “[T]he burden is on the claimant to show
that she is disabled and, therefore, she is responsible for producing evidence to support her
application.” McCloud v. Barnhart, 166 F. App’x 410, 418 (11th Cir. 2006) (citing 20
C.F.R. § 416.912(a); 20 C.F.R. § 416.912(c)). Here, because there is a presumption that
Mosher has engaged in substantial gainful activity since her average monthly earnings are
greater than the amounts set forth in the Commissioner’s table (see POMS DI 10501.015),
the burden shifts back to Mosher to overcome that presumption by proving that her position
was either subsidized or qualified as a sheltered workshop. R. 12.
Mosher failed to meet her burden of producing evidence to support her claim that
this position was a sheltered workshop. Mosher failed to provide evidence to support her
claim that UAB required a diagnosis of a severe mental illness to apply for her position,
that the grant which funded the position required a diagnosis of a severe mental illness, or
that she had special accommodations. The only evidence submitted that the position or
grant required a diagnosis of a severe mental illness was the letter and questionnaire
completed by Ms. Nault. The ALJ found this evidence to conflict with the record because
UAB’s “position request form” does not list a diagnosis as a prerequisite for applying for
the position, the position was for “Case Manager,” it was being refilled due to a vacancy,
and Mosher’s employment application indicates a work history that is not consistent with
her claim that she never held a full-time job prior to UAB. R. 15–16. Additionally, the
ALJ found that the claim of special accommodations were inconsistent with the record
because Ms. Nault’s letter and questionnaire directly conflicted with Mosher’s
performance reviews, some were not put in place until the last few months of her
employment, and some of the accommodations listed were available to any employee. R.
16.
The Undersigned has thoroughly reviewed the record and holds that the
Commissioner’s decision is supported by substantial evidence. Mosher did not meet her
burden at Step One of producing sufficient evidence to support her application and showing
that her position with UAB was either subsidized or a sheltered workshop.
VI. CONCLUSION
Based on the foregoing, the undersigned concludes that the Commissioner’s
decision is supported by substantial evidence and based upon the proper legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED.
A final judgment will be entered separately.
DONE this the 4th day of March, 2020.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
CHIEF UNITED STATES MAGISTRATE JUDGE