United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge
above-captioned case has been referred to me to review the
parties' dispositive motions and to make recommendations
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
301.5(b)(ix). [ECF No. 3]. I have considered the parties'
cross-motions for summary judgment, and the related filings.
[ECF Nos. 18, 19, 22, 24]. I find that no hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). This
Court must uphold the decision of the Agency if it is
supported by substantial evidence and if the Agency employed
proper legal standards. See 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996). Under that standard, I recommend that
the Court deny both motions, reverse the judgment of the
Commissioner, and remand the case to the Commissioner for
further analysis pursuant to sentence four of 42 U.S.C.
Bonner filed a claim for Disability Insurance Benefits
(“DIB”) on March 30, 2010, alleging a disability
onset date of October 31, 2008. (Tr. 16). After a lengthy
procedural history, an Administrative Law Judge
(“ALJ”) issued a July 25, 2016 decision, which
determined that Ms. Bonner was not disabled within the
meaning of the Social Security Act (the “Act”)
during the relevant time frame. (Tr. 13-23). The Appeals
Council (“AC”) denied Ms. Bonner's request
for review, (Tr. 1-4), so the ALJ's 2016 decision
constitutes the final, reviewable decision of the Agency.
one of the sequential evaluation, the ALJ determined that Ms.
Bonner had engaged in substantial gainful activity
(“SGA”), and that, therefore, she was not
disabled within the meaning of the Act. (Tr. 19-22). Thus,
Ms. Bonner's sole argument on appeal is that the ALJ, by
wrongfully imputing income to her, erred in concluding that
she engaged in SGA. [ECF No. 18 at 4-6].
the Act, the term “disability” is defined as the
“inability to engage in any [SGA] 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),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. SGA
means work that involves: (a) “doing significant and
productive physical or mental duties; and (b) [i]s done (or
intended) for pay or profit.” 20 C.F.R. §
404.1510. Importantly, work activity “may be
substantial even if it is done on a part-time basis or if
[the claimant] do[es] less, get[s] paid less, or ha[s] less
responsibility than when [the claimant] worked before.”
20 C.F.R. § 404.1572(a).
evaluating [a claimant's] work activity for [SGA]
purposes, [the] primary consideration will be the earnings
[the claimant] derive[s] from the work activity.'”
Curry v. Astrue, No. CV 309-068, 2010 WL 5125923, at
*3 (S.D. Ga. Nov. 17, 2010), report and recommendation
adopted, No. CV 309-168, 2010 WL 5125255 (S.D. Ga. Dec.
9, 2010) (quoting 20 C.F.R. § 404.1574(a)(1)). Moreover,
“[e]arnings determinations are made with reference to
the earnings guidelines (the ‘Guidelines') set
forth in the Social Security Administration's
regulations.” Id. (citing 20 C.F.R. §
404.1574(b)). “The Guidelines establish monthly
earnings amounts for each year . . . and [i]f a
claimant's average monthly earnings exceed the amount set
forth in the Guidelines, a presumption arises that he is
engaging in SGA.” Id. (citing 20 C.F.R.
§§ 404.1574(b)(2)-(3)(i)). Alternatively, “if
a claimant's average monthly earnings are equal to or
less than the Guideline amounts, he is presumed not to be
engaging in SGA.” Id. (citing 20 C.F.R.
a self-employed claimant that has not engaged in SGA under
the average monthly earnings inquiry (outlined above) is
subject to two additional tests. 20 C.F.R. §404.1575(a).
First, a self-employed claimant has also engaged in SGA if
the services provided by the claimant are significant.
Id. Second, a self-employed claimant has engaged in
SGA if “the work activity, although not comparable to
that of unimpaired individuals, is clearly worth the amount
shown in [the Guidelines] 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” being
performed by the claimant. Id.
instant case, Ms. Bonner argues that the ALJ found SGA by
erroneously determining that her countable income exceeded
the Guidelines and that “there was no consecutive
12-month period without SGA between the alleged onset date
and the date last insured[.]” (Tr. 21); [ECF No. 18 at
5]. After her alleged onset date, Ms. Bonner worked by
performing mortgage closings as a notary on a contractual
basis. [ECF No. 18 at 1-2]; (Tr. 921). She claims that the
ALJ erred in imputing income to her and that “she never
made more than the SGA threshold since” her date of
disability.” [ECF No. 18 at 5]. I agree that the
ALJ's decision is not supported by substantial evidence,
and I therefore recommend remand.
Ms. Bonner alleged a disability onset date of October 31,
2008, and “did not work from October 2008 through April
2009, ” she subsequently earned $10, 234.47 in the
remaining months of 2009. [ECF No. 18 at 1-2]. Thus, pursuant
to SSR 83-85, Ms. Bonner's average “countable
earnings” equaled $1, 279.31 per month over the eight
month period in which she worked in 2009. See SSR
83-85, 1983 WL 31257 (S.S.A. Jan. 1, 1983). Because Ms.
Bonner's average earnings exceeded the 2009 Guidelines
(i.e., $980.00 per month), the ALJ, relying on the
presumption, correctly found that there was “no
continuous 12-month period without SGA for 2008-2009.”
there is not substantial evidence to support the ALJ's
conclusion that Ms. Bonner engaged in SGA from 2010 through
2013. The SGA limits for the years 2010-2013 were $1, 000.00,
$1, 000.00, $1, 010.00, and $1, 040.00 per month,
respectively. [ECF No. 24 at 3]; (Tr. 21). As the ALJ
conceded, Ms. Bonner's reported earnings for
2010 were only $4, 984.00. (Tr. 21). Despite Ms. Bonner's
reported income falling below the Guidelines, the
ALJ made a finding of SGA by relying upon treatment records
and Ms. Bonner's admissions. Id.
the ALJ cited treatment notes from Dr. Peter G. Uggowitzer,
which state that, as of April 26, 2010, Ms. Bonner was
“[c]urrently employed full-time.” Id.;
(Tr. 679). Likewise, the ALJ cited Ms. Bonner's
statements: (1) that, by May 7, 2010, she had performed 30
closings for the year; (2) that, as of October 29, 2010, she
was “currently” performing “mortgage
closings on a contractual basis;” (3) that she earned
between $60-80 per closing; and (4) that “her
workload” was anywhere from 12-18 closings per month.
(Tr. 21, 52, 71-72, 398, 921-23). Averaging Ms. Bonner's
fee per closing and number of closings per month ($70 per
closing, 15 closings per month), the ALJ concluded that she
earned, on average, $1, 050.00 per month, thus constituting
SGA for the years 2010-2013. (Tr. 21) (stating that
“[i]ncome averaging [was] appropriate for 2011-2014
pursuant to SSR 83-35.”).
the ALJ mischaracterized the evidence when imputing income to
Ms. Bonner for the years 2010-2013. While Ms. Bonner had the
opportunity to perform approximately 12-18 closings per
month, (Tr. 52, 71), she testified to completing an average
of only six closings per month, turning down
“two-thirds” of the opportunities for
“psychiatric reasons.” (Tr. 52, 71-72). Moreover,
Ms. Bonner's May 7, 2010 claim that she had performed 30
closings thus far in 2010 (cited by the ALJ) lends credence
to her contention that she was performing roughly six
closings per month. (Tr. 21, 398). Overall, the record provides
negligible evidence of Ms. Bonner's earned income for
closings performed from 2010-2013. As such, I find that there
is not substantial evidence to support the ALJ's
conclusion that Ms. Bonner earned $1, 050.00 a month, on
average, for the years 2010-2013 and, therefore, was engaged
in SGA. See Curtis v. Sullivan, 764 F.Supp. 119, 120
(N.D. Ill. 1991) (holding that, in light of “scant
evidence” of employment, the ALJ erred in reaching his
own conclusion of SGA by imputing income to the claimant).
The fact that the ALJ's imputed income amount just barely