SSR 89-4c : SECTIONS 202(a), 211, 213, AND 214 OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(a), 411, 413, AND 414) SELF-EMPLOYMENT INCOME -- TRADE OR BUSINESS -- CONSULTING SERVICES

SSR 89-4c

EFFECTIVE/PUBLICATION DATE: 02/15/89

20 CFR 404.1066

Doshi v. Sec. of HHS, 1A Unempl. Ins. Rep. (CCH) ¶ 14,045A (N.D.

Ill., E. Div.)

PLUNKETT, District Judge:

Pending are cross-motions for summary judgment filed by plaintiff

Mansukhlal Doshi ("Doshi") and defendant Dr. Otis R. Bowen, Secretary of

Health and Human Services (the "Secretary"). Doshi seeks review of a final

decision of the Secretary denying his application for old-age or

retirement benefits. Doshi seeks reversal of the Secretary's determination

or, alternatively, remand to the Secretary for consideration of new

evidence. For the following reasons, we affirm the Secretary's

determination.

Procedural Background

On March 14, 1985, Doshi applied for Retirement Insurance Benefits under

Title II of the Social Security Act (Federal Old-Age, Survivors, and

Disability Insurance.) (R. 56-59). The Secretary denied the application on

May 14, 1985 (R. 60-61) because a claims representative determined that

Doshi was not conducting a bona fide trade or business from 1982 through

1984. Doshi purported to be an investment counselor. The representative

determined that Doshi created his clients and duties for the sole purpose

of providing social security coverage. (Id.) The representative

believed that Doshi and his son (who was Doshi's biggest client) "created

a situation to give the son a write-off and the father quarters of

coverage." (Id.)

Doshi requested reconsideration of the denial of benefits on the grounds

his activities as a consultant was a business covered under the Social

Security Act (R. 62-63). Doshi stated "(1) My business was conducted in

good faith for producing income; (2) there was continuity of operations;

ient) "created

a situation to give the son a write-off and the father quarters of

coverage." (Id.)

Doshi requested reconsideration of the denial of benefits on the grounds

his activities as a consultant was a business covered under the Social

Security Act (R. 62-63). Doshi stated "(1) My business was conducted in

good faith for producing income; (2) there was continuity of operations;

(3) I was regularly conducting the same and am still doing so; (4) I do

and did hold myself out to others as selling my services." (R. 63). On

September 3, 1985, the Secretary denied Doshi's request for

reconsideration on the same grounds as before -- he did not derive income

from a trade or business (R. 65-70). The Secretary also ruled that Doshi's

1981 income, in addition to the years 1982 through 1984, was not derived

from a bona fide trade or business (R. 70).

Doshi requested a hearing before an Administrative Law Judge (R. 26),

which was held on February 13, 1986, in Evanston, Illinois (R. 28-55). At

the hearing before ALJ Dale A. Garwal, Doshi appeared and was represented

by a paralegal from the Prairie State Legal Services Office. (Id.) Doshi testified and submitted numerous documents on his own behalf (R.

31-51; 130-55). On March 28, 1986, the ALJ ruled that Doshi was not

entitled to retirement insurance benefits (R. 13-18). The ALJ concluded

that "the evidence does not establish that the claimant did conduct a bona

fide business during the years 1981 through 1984" (R. 15).

Doshi requested review of the ALJ's adverse determination (R. 9-12), and

the Appeals Council denied the request October 1, 1986 (R. 3-4). The

Appeals Council concluded that Doshi received a fair hearing and there was

no basis for reviewing the ALJ's findings (R. 3).

Having exhausted his administration remedies, Doshi now seeks judicial

review pursuant to 42 U.S.C. § 405(g).

Legal Framework

shi requested review of the ALJ's adverse determination (R. 9-12), and

the Appeals Council denied the request October 1, 1986 (R. 3-4). The

Appeals Council concluded that Doshi received a fair hearing and there was

no basis for reviewing the ALJ's findings (R. 3).

Having exhausted his administration remedies, Doshi now seeks judicial

review pursuant to 42 U.S.C. § 405(g).

Legal Framework

Every individual who (1) is a "fully insured individual," (2) has

attained the age of 62, and (3) has filed an application for old-age

insurance benefits, is entitled to receive old-age (or retirement)

insurance benefits. 42 U.S.C. § 402(a). The Secretary ruled that Doshi was

not a "fully insured individual." The term "fully insured individual"

means, as pertinent here, an individual who has not less than one quarter

of coverage for each calendar year after 1950 and before the year he or

she turns sixty-two years old. 42 U.S.C. § 414(a). Since Doshi was born on

December 27, 1919 (R. 56), and turned sixty-two in 1981, he needed thirty

quarters of coverage to be "fully insured." 20 C.F.R. § 404.115.

The term "quarter of coverage" means, for calendar years after 1977, a

calendar quarter in which an individual receives wages or is credited with

"net earnings from self-employment" in an amount which equals or exceeds

an amount specified by the Secretary. 42 U.S.C. § 413(a)(2)(A)(ii). The

"amounts specified" per quarter for the years 1978 through 1985 were the

following: $250 for 1978; $260 for 1979; $290 for 1980; $310 for 1981;

$340 for 1982; $370 for 1983; $390 for 1984; and $410 for 1985 (see R.

68). 42 U.S.C. § 413(d); 20 C.F.R. §§ 404.143-404.144, Subpart B,

Appendix

nt which equals or exceeds

an amount specified by the Secretary. 42 U.S.C. § 413(a)(2)(A)(ii). The

"amounts specified" per quarter for the years 1978 through 1985 were the

following: $250 for 1978; $260 for 1979; $290 for 1980; $310 for 1981;

$340 for 1982; $370 for 1983; $390 for 1984; and $410 for 1985 (see R.

68). 42 U.S.C. § 413(d); 20 C.F.R. §§ 404.143-404.144, Subpart B,

Appendix. In order to receive four quarters of coverage in one year (the

maximum number of quarters of coverage a person can earn in one year), an

individual must earn at least four times the "amount specified." (For

example, an individual will have earned four quarters of coverage in 1984

if he or she received wages or self-employment income exceeding

$1,560.)

The term "net earnings from self-employment" is defined as "the gross

income, as computed under subtitle A of Title 26, derived by an individual

from any trade or business carried on by such individual, less the

deductions allowed under such subtitle which are attributable to such

trade or business . . . ." 42 U.S.C. § 411(a). In other words, "net

earnings from self-employment" equals a person's taxable income from a

trade or business.

The phrase "trade or business" is not defined in the Social Security Act

or the regulations. The regulations simply provide that "[w]ith some

exceptions, the term 'trade or business' has the same meaning as it does

when used in section 162 of the [Internal Revenue] Code [26 U.S.C. §

162]." 20 C.F.R. § 404.1066. Section 162 of the Internal Revenue Code does

not define the term "trade or business"; indeed, nowhere in the tax code

or tax regulations is a general definition of "trade or business"

provided. See Commissioner v. Groetzinger, _____ U.S. _____, 107 S.

Ct. 980, 983 (1987). In his opinion, ALJ Garwal used the following legal

standard:

(R. 15-16).

In Groetzinger, the Supreme Court attempted to describe a "trade

or business" for purposes of § 162(a) of the Internal Revenue Code:

d, nowhere in the tax code

or tax regulations is a general definition of "trade or business"

provided. See Commissioner v. Groetzinger, _____ U.S. _____, 107 S.

Ct. 980, 983 (1987). In his opinion, ALJ Garwal used the following legal

standard:

(R. 15-16).

In Groetzinger, the Supreme Court attempted to describe a "trade

or business" for purposes of § 162(a) of the Internal Revenue Code:

107 S. Ct. at 987.

The Court stated that the determination of the existence of a trade or

business "requires an examination of the facts in each case." 107 S. Ct.

at 988, quoting Higgins v. Commissioner, 312 U.S. 212, 217

(1941).

The Secretary in our case ultimately ruled that Doshi had not derived

income from a bona fide "trade or business" in the years 1981 through

1984. The primary issue presented to us is whether the Secretary's

determination was supported by substantial evidence.

Evidence Presented

Doshi was born on December 27, 1919, in India (R. 56). Doshi attended

high school and college in India, receiving a master's degree in economics

and political science from the University of Bombay in 1947 (R. 155).

Doshi worked for the government of the state of Gujarat in India from 1948

to 1976, rising to become Assistant Director of Industries (R. 33). Doshi

attended Roosevelt University in Chicago, Illinois during 1971, but he

received no degree (R. 32, 155). Also during 1971, Doshi worked for TSC

Industries, Inc. in Chicago; Doshi was in charge of its freight project

(R. 155). From 1976 to 1979, Doshi was employed by Arat Electro Chemicals

Pvt., Ltd., in Ahmedabad, India, as an administrative officer (R. 155).

of Industries (R. 33). Doshi

attended Roosevelt University in Chicago, Illinois during 1971, but he

received no degree (R. 32, 155). Also during 1971, Doshi worked for TSC

Industries, Inc. in Chicago; Doshi was in charge of its freight project

(R. 155). From 1976 to 1979, Doshi was employed by Arat Electro Chemicals

Pvt., Ltd., in Ahmedabad, India, as an administrative officer (R. 155).

In 1979, Doshi apparently emigrated to the United States (R. 33). When he

filed his claim for social security benefits in 1985, Doshi claimed to

have been working in the United States since 1979 mainly as a consultant

(R. 34). Doshi claimed to give advice on matters involving taxation,

immigration, investments, real estate, and the import-export trade with

India (R. 36-37). From 1981 to 1984, Doshi had a total of eight clients

(R. 37): his son, Dr. Ashok Doshi; his daughter, Dr. Niranjana Shah and

her husband, Dr. Dipak Shah; his son, Dipak Doshi and his wife, Chetan

Doshi; his daughter's father-in-law or brother-in-law, Dipak Shah; Rohit

Shah (same); and Dr. Ashok Doshi's professional corporation (R. 94-95).

From 1981-1983, Doshi worked out of his house in Highland Park, Illinois

(R. 34); in 1983, Doshi began working out of an "office" in Chicago that

was really an apartment rented by a friend (R. 35). During the period

1981-1984, Doshi did no advertising (R. 39), and although he claimed to

have business cards, he did not have any with him at the hearing before

the ALJ (R. 39). Doshi did not use business stationery until 1983. (Id.)

use in Highland Park, Illinois

(R. 34); in 1983, Doshi began working out of an "office" in Chicago that

was really an apartment rented by a friend (R. 35). During the period

1981-1984, Doshi did no advertising (R. 39), and although he claimed to

have business cards, he did not have any with him at the hearing before

the ALJ (R. 39). Doshi did not use business stationery until 1983. (Id.)

Doshi testified he charged his clients $30 per hour for his services (R.

40). From 1981 through 1984, Doshi reported income in the following

amounts: 1981 ($15,182); 1982 ($6,600); 1983 ($2,000); 1984 ($2,450) (R.

71-72, 81, 86, 88). The services Doshi claims he provided he clients

varied. Doshi submitted several invoices evidencing services he allegedly

provided his clients, but all bore dates after August 1983 (R. 101-26). On

December 15, 1983, Doshi billed Chetan Doshi (Doshi's daughter-in-law)

$250 because he "discussed prospects for attaining M.S. degree, explained

importance thereof in the job market, accompanied [her] to different

universities, helped her in making applications and prepared resume" (R.

102). On January 31, 1984, Doshi billed his son, Dr. Ashok Doshi, $420 for

"[s]tudy of medico-economic periodicals and other literature of 1983 and

presenting the gist to you . . . [f]iling of papers for 1983 . . . [s]tudy

of Cashco drilling project" (R. 126). Indeed, much of Doshi's services

consisted of reviewing medico-economic publications and filing papers for

Dr. Ashok Doshi (R. 108, 119, 121, 124). On August 31, 1984, Doshi billed

Chetan Doshi $150 because he "assisted [her] in search of the apartment

and in selecting the present one" (R. 118). Doshi also billed his clients

for advice concerning various investment opportunities on several

occasions (see R. 105, 109, 111-13, 115, 116, 125) and on immigration

matters once (R. 114).

apers for

Dr. Ashok Doshi (R. 108, 119, 121, 124). On August 31, 1984, Doshi billed

Chetan Doshi $150 because he "assisted [her] in search of the apartment

and in selecting the present one" (R. 118). Doshi also billed his clients

for advice concerning various investment opportunities on several

occasions (see R. 105, 109, 111-13, 115, 116, 125) and on immigration

matters once (R. 114).

The ALJ doubted the veracity of Doshi's consulting business. Most, if not

all, of Doshi's clients were relatives, either blood or through marriage.

His largest client was his son (all of Doshi's billings in 1981 were to

Dr. Ashok Doshi; 83% of Doshi's billings in 1983 were to Dr. Ashok Doshi

or his professional corporation; 70% of Doshi's billings in 1984 were to

Dr. Ashok Doshi). He incurred virtually no business expenses, he worked

out of his home until 1983, and he kept informed through the use of free

government publications. He did not use business stationery until 1983 and

had no business cards with him at the hearing (R. 16). The ALJ found no

evidence that Doshi had any qualifications to give advice on taxation,

immigration, or investments. (Id.) The ALJ also found that many of

the services Doshi provided his clients (reviewing literature for his son,

helping his daughter-in-law find an apartment, etc.) were not bona fide

business services. (Id.) The ALJ concluded that Doshi did not

receive income from a bona fide trade or business from 1981 through 1984,

and therefore was not eligible for quarters of coverage during those

years. Since Doshi otherwise had only 13 quarters of coverage, he was not

fully insured and not entitled to old-age benefits (R. 18).

Discussion

an apartment, etc.) were not bona fide

business services. (Id.) The ALJ concluded that Doshi did not

receive income from a bona fide trade or business from 1981 through 1984,

and therefore was not eligible for quarters of coverage during those

years. Since Doshi otherwise had only 13 quarters of coverage, he was not

fully insured and not entitled to old-age benefits (R. 18).

Discussion

Our task is to review the evidence in the record to determine if the

Secretary's decision is supported by substantial evidence. "Substantial

evidence" is "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Richardson v. Perales, 402 U.S.

389, 401 (1971). Our examination of the evidence convinces us it is

adequate to support the ALJ's conclusion. Doshi submitted no business

records for 1981 or 1982 to the ALJ. Doshi has now submitted records for

1981 to this court. (Doshi's Motion for Summary Judgment, Attachments

A1-A10). Even if we consider this "new evidence," our decision does not

change. All of Doshi's 1981 billings were to his son, Dr. Ashok Doshi. The

services provided were, in part, for reviewing literature, sorting and

filing papers, making phone calls, etc. More importantly, Doshi still has

presented no evidence of his business activities for 1982.

The evidence clearly supports the inference that Doshi's Business was not bona fide. His clients were relatives, his qualifications were

suspect, and his services rendered were often personal in nature. The fact

that no one directly contradicted Doshi's testimony is irrelevant. The ALJ

observed Doshi's demeanor and found his story lacking in veracity. We find

no basis to overrule the ALJ's decision and, accordingly, affirm.

nference that Doshi's Business was not bona fide. His clients were relatives, his qualifications were

suspect, and his services rendered were often personal in nature. The fact

that no one directly contradicted Doshi's testimony is irrelevant. The ALJ

observed Doshi's demeanor and found his story lacking in veracity. We find

no basis to overrule the ALJ's decision and, accordingly, affirm.

We find no merit to Doshi's contention the ALJ failed to fully develop

the record. Doshi was represented by a paralegal assistant, and had a full

and complete opportunity to make his case. At the hearing, the ALJ asked

numerous questions to elicit information concerning Doshi's business,

allowed Doshi's representative to ask questions, and allowed Doshi to make

a statement on his own behalf. There is no indication that the ALJ

prevented Doshi from presenting any evidence either at or after the

hearing. (Doshi argues he did not know he could submit evidence after the

hearing was over, but this argument is weak because Doshi submitted a copy

of his resume after the hearing was over (R. 155).)

We also find no merit to Doshi's contention that the ALJ examined only

part of the record rather than the whole. The ALJ addressed all the

evidence in the record in making his decision. Finally, we find meritless

Doshi's contention that the ALJ imposed on Doshi an improper burden of

proof. There is no evidence ALJ Garwal did any such thing. The ALJ drew an

inference contrary to Doshi's interest, but that does not make the

decision legally erroneous.

Conclusion

The Secretary's decision denying Doshi old-age benefits is affirmed.

Doshi's motion for summary judgment is denied; the Secretary's motion for

summary judgment is granted.