IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11095

PATSY OHEA COPELAND,

Plaintiff–Appellant,

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 

SECURITY,

Defendant–Appellee.

Appeal from the United States District Court

for the Northern District of Texas 

Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.

CARL E. STEWART, Chief Judge:

Plaintiff-Appellant Patsy Copeland brought this action under § 205(g) of 

the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the 

Commissioner of Social Security’s administrative decision that Copeland is not 

disabled as defined by the Act. Specifically, the Commissioner found that 

Copeland was not entitled to disability insurance benefits (DIB) and 

supplemental security income (SSI) benefits under Titles II and XVI of the Act, 

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). The district court dismissed Copeland’s 

complaint. For the reasons stated herein, we VACATE and REMAND.

United States Court of Appeals

Fifth Circuit

FILED

November 17, 2014

Lyle W. Cayce

Clerk

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I.

Copeland filed applications for DIB and SSI benefits on November 16, 

2009, alleging disability due to knee, back, shoulder and heart impairments 

beginning October 14, 2009. These applications were denied. On March 23, 

2011, her claims were presented at a hearing before an administrative law 

judge (ALJ). Copeland and a vocational expert (VE) testified at the hearing. 

Copeland testified that she had worked as a home health aide “for a 

while” before quitting her job in October 2009. She stated that she had 

constant pain in her back, right hip and leg, and the left side of her neck, which 

were aggravated by movement. She testified that she could not work due to 

the pain from these conditions. She acknowledged, however, that her 

medications helped with the pain. She said she could walk for half a block, sit 

for one hour, stand for 30 minutes, and regularly lift and carry up to 10 pounds, 

as that was the weight of her purse. She also said she could lift a gallon of 

milk, but that she occasionally lost her grip when grasping a milk container. 

She testified that she spent about half her day lying down, and generally rode

a cart to the grocery store. Recently, her physician’s assistant directed her to 

walk with a cane in order to put less weight on her leg. She said that her doctor 

never mentioned surgery for her conditions. 

In addition to providing testimony at the hearing, Copeland reported a 

long history of working as a home health aide, which entailed housekeeping 

services for her patients, including dusting, mopping, vacuuming, and laundry. 

In a disability report, she reported very low earnings, ranging from $86.40 to 

$4,719.38 per year ($7.20 to $393.28 per month). Two separate agency 

vocational consultants, Melinda Garza and TJ Snyder, reviewed the record and 

submitted Sequential Vocational Guide reports indicating there was evidence 

of past relevant work.

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The VE testified that the work Copeland had primarily done in the past 

15 years had been that of a home health attendant, which the VE characterized 

as “lower level semi-skilled” work with a vocational preparation level of 3. She 

called the job a medium exertional level job as generally performed in the 

national economy. The ALJ directed the VE to imagine a hypothetical 

individual of Copeland’s age, education, and work experience, who was able to 

do the full range of light exertional-level work including occasional climbing, 

balancing, stooping, kneeling, crouching, and crawling but excluding the 

climbing of ladders, ropes, and scaffoldings. The ALJ asked whether such an 

individual would be able to perform the job of home health aide. The VE 

responded that the individual could perform Copeland’s past work as a home 

health attendant as she had actually performed the job. 

The ALJ found that Copeland had failed to prove she was disabled within 

the meaning of the Act.1 He found that Copeland retained the residual 

functional capacity for the performance of a wide range of light work activities, 

except she could only occasionally balance, stoop, kneel, crouch, crawl, and 

climb ramps and stairs, and she could never climb ladders, ropes, or scaffolds. 

With this capacity, the ALJ found that Copeland’s past relevant work included

“home health attendant” and that she could return to this position as she had 

actually performed it—though not as it is generally performed in the national 

economy. The ALJ also found that Copeland’s subjective complaints were not 

credible. Accordingly, he denied her applications for benefits. The Appeals 

Council denied Copeland’s request for review, and the ALJ’s May 16, 2011 

decision became the Commissioner’s final decision. 

1 The record also contained extensive medical evidence, including numerous reports 

from several doctors. However, because Copeland challenges only the ALJ’s determination 

that her past job as a home health aide constituted past relevant work, we need not include 

a summary of medical evidence here. 

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Having exhausted her administrative remedies, Copeland brought the 

instant civil action in district court. The district court found that the decision 

was supported by substantial evidence and that the ALJ applied the proper 

legal standards. Copeland appealed. 

II.

Our review of Social Security disability cases “is limited to two inquiries: 

(1) whether the decision is supported by substantial evidence on the record as 

a whole, and (2) whether the Commissioner applied the proper legal standard.” 

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (citing Greenspan v. 

Shalala, 38 F.3d 232, 236 (5th Cir. 1994)); see generally 42 U.S.C. § 405(g) 

(describing and elaborating on the standard for judicial review of decisions of 

the Commissioner of Social Security). Substantial evidence is “more than a 

mere scintilla and less than a preponderance.” Perez, 415 F.3d at 461 (citation 

and internal quotation marks omitted). It refers to “such relevant evidence as 

a reasonable mind might accept as adequate to support a conclusion.” Id.

(internal citation and quotation marks omitted). In applying this standard, we 

“may not reweigh the evidence or substitute [our] judgment for the 

Commissioner’s.” Id. (internal citation omitted). We may affirm only on the 

grounds that the Commissioner stated for his decision. Cole v. Barnhart, 288 

F.3d 149, 151 (5th Cir. 2002) (per curiam). 

In order to qualify for disability insurance benefits or SSI, a claimant 

must suffer from a disability. See 42 U.S.C. § 423(d)(1)(A). The Social Security 

Act defines a disability as a “medically determinable physical or mental 

impairment lasting at least twelve months that prevents the claimant from 

engaging in substantial gainful activity.” Masterson v. Barnhart, 309 F.3d 267, 

271 (5th Cir. 2002); see also 42 U.S.C. § 423(d)(1)(A). The Commissioner 

typically uses a sequential five-step process to determine whether a claimant

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is disabled within the meaning of the Social Security Act. 20 C.F.R. § 404.1520; 

see also Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). The analysis is: 

First, the claimant must not be presently working. Second, a 

claimant must establish that he has an impairment or combination 

of impairments which significantly limit [her] physical or mental 

ability to do basic work activities. Third, to secure a finding of 

disability without consideration of age, education, and work 

experience, a claimant must establish that his impairment meets 

or equals an impairment in the appendix to the regulations. 

Fourth, a claimant must establish that his impairment prevents 

him from doing past relevant work. Finally, the burden shifts to 

the Secretary to establish that the claimant can perform the 

relevant work. If the Secretary meets this burden, the claimant 

must then prove that he cannot in fact perform the work 

suggested. 

See Waters, 276 F.3d at 718 (quoting Muse v. Sullivan, 925 F.2d 785, 789 (5th 

Cir. 1991)); see generally § 404.1520. Notably in this case, “the claimant bears 

the burden of proof with respect to the first four steps of the analysis. . . .” 

Waters, 276 F.3d at 718; see also Newton, 209 F.3d at 453. If at any step the 

Commissioner finds that the claimant is or is not disabled, the ALJ need not 

continue the analysis. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

Here, the ALJ found at step four that Copeland was not disabled because 

she was able to perform her past relevant work as a home health aide.2 Past 

relevant work refers to work that was performed “within the last 15 years, 

lasted long enough for the person to learn to do it and was substantial gainful 

activity.” Titles II & XVI: Past Relevant Work—the Particular Job or the 

Occupation As Generally Performed, SSR 82-61, 1982 WL 31387 (1982); 20 

2 At steps one to three, the ALJ found that Copeland had not engaged in substantial 

gainful activity at any time relevant to the decision and had a “severe” combination of 

impairments, but her impairments were not severe enough to meet or equal in severity any 

impairment listed in the appendix to the regulations. 

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C.F.R. §§ 404.1565(a), 416.965(a). Part-time work may be considered past 

relevant work. See Alfred v. Barnhart, 181 F. App’x 447, 451 (5th Cir. 2006) 

(per curiam) (unpublished) (citing Titles II & XVI: Assessing Residual 

Functional Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184 (July 2, 

1996)). A claimant may retain the capacity to perform her past relevant work

either “as he or she actually performed it” or “as ordinarily required by 

employers throughout the national economy.” Past Relevant Work, 1982 WL 

31387, at *1–2. 

To determine whether work qualifies as past relevant work, it is 

necessary to understand what is meant by substantial gainful activity (“SGA”). 

“The adjudicative criteria for determining whether a person has done 

‘substantial’ and ‘gainful’ work activity are explained in sections 404.1571–

404.1575 and 416.971–416.975 of the regulations.” Titles II & XVI: A 

Disability Claimant’s Capacity to Do Past Relevant Work, in General, SSR 82-

62, 1982 WL 31386, at *2 (1982). SGA is defined as: 

work activity that is both substantial and gainful.

(a) Substantial work activity. Substantial work activity is work 

activity that involves doing significant physical or mental 

activities. Your work may be substantial even if it is done on a 

part-time basis or if you do less, get paid less, or have less 

responsibility than when you worked before.

(b) Gainful work activity. Gainful work activity is work activity 

that you do for pay or profit. Work activity is gainful if it is the 

kind of work usually done for pay or profit, whether or not a 

profit is realized.

20 C.F.R. §§ 404.1572, 404.1510; see also Newton v. Apfel, 209 F.3d 448, 452 

(5th Cir. 2000). 

The regulations indicate that the Commissioner “will consider all of the 

medical and vocational evidence in your file to decide whether or not you have 

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the ability to engage in substantial gainful activity.” 20 C.F.R. §§ 404.1571,

416.971. “Generally, if you worked for substantial earnings, we will find that 

you are able to do substantial gainful activity. However, the fact that your 

earnings were not substantial will not necessarily show that you are not able 

to do substantial gainful activity.” 20 C.F.R. §§ 404.1574(a)(1), 416.974(a)(1). 

The Commissioner will consider that earnings show SGA if monthly 

earnings exceed those indicated in the chart and related regulations at sections

404.1574(b)(2) and 416.974(b)(2). If earnings are below the amounts in 

sections 404.1574(b)(2) and 416. 974(b)(2), the Commissioner “will generally

consider” that the claimant has not engaged in SGA and “will generally not 

consider other information in addition to [] earnings.” §§ 404.1574(b)(3),

416.974(b)(3). However, the regulations list several exceptions to this 

generalization. §§ 404.1574(b)(3)(ii), 416.974(b)(3)(ii). Specifically, the 

Commissioner will customarily consider information beyond earnings “if there 

is evidence indicating that you may be engaging in substantial gainful activity

or that you are in a position to control when earnings are paid to you or the 

amount of wages paid to you.” Id. The regulations list two examples of other 

information the Commissioner may consider. One is whether the work “is

comparable to that of unimpaired people in [the] community who are doing the 

same or similar occupations as their means of livelihood, taking into account 

the time, energy, skill, and responsibility involved in the work.” §§

404.1574(b)(3)(iii)(A), 416.974(b)(3)(iii)(A). The other is whether the claimant 

controls his or her own wages. §§ 404.1574(b)(3)(iii)(B), 416.974(b)(3)(iii)(B). 

The regulations do not indicate that this is an exclusive list of examples of 

other information the Commissioner will consider. 

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III.

Copeland’s claims center on her contention that the ALJ erred in finding 

that her past work as a home health aide constituted past relevant work. She 

argues that her work was never performed at the SGA level and, therefore, 

cannot be considered past relevant work. The crux of her argument is that a 

rebuttable presumption of non-SGA arises when a claimant’s earnings fall 

below the earnings guidelines for SGA contained in §§ 404.1574(b)(2) and 

416.974(b)(2). We agree. 

Two circuits have recognized such a presumption under the current 

regulations in unpublished opinions.3 See Sheppard v. Astrue, 426 F. App’x 

608, 609–10 (10th Cir. 2011) (holding that an ALJ committed reversible legal 

error by failing to give a claimant the benefit of a rebuttable presumption 

against SGA when his average monthly earnings fell below the threshold 

regulatory levels); Beeks v. Comm’r of Social Security, 363 F. App’x 895, 897 

(3rd Cir. 2010) (“[T]he ALJ failed to consider (or mention) that Beeks’s 

earnings . . . were less than the average monthly allowance for presumed 

substantial activity. . . . Because the ALJ failed to recognize this issue and 

consider it in his step one analysis, we must vacate and remand.”); see also

Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law & 

Procedure in Federal Court § 3:6 (2014 ed.) (“[I]f the claimant earned less than 

the agency’s prescribed amount, there is a presumption that he did not engage 

3 The interest in uniform national application of the law is particularly strong in an 

area like Social Security, where the number of cases is so high. See Administrative Office of 

the U.S. Courts, U.S. District Courts – Civil Cases Commenced, by Basis of Jurisdiction and 

Nature of Suit, During the 12-Month Period Ending March 31, 2012 and 2013 (2014), 

available at

http://www.uscourts.gov/uscourts/Statistics/FederalJudicialCaseloadStatistics/2013/tables/

C02Mar13.pdf (finding that Social Security cases occupy about five percent of the federal 

district courts’ civil dockets).

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in substantial gainful activity.”); Social Security Law and Practice: Showing 

Disability § 40:7 (2008) (“Earnings as an employee below the amount which 

creates a presumption of substantial gainful activity create a contrary 

presumption that a claimant did not engage in substantial gainful activity.”

(citations omitted)).

In precedential opinions, other circuits have recognized a presumption 

based on low earnings under the previous, but similarly worded, regulatory 

regime.4 See Rosello v. Astrue, 529 F.3d 1181, 1186 (D.C. Cir. 2008) (concluding 

that earnings “below the $190 threshold [would] trigger[] a presumption that 

she did not engage in substantial gainful activity”); Lewis v. Apfel, 236 F.3d 

503, 515 (9th Cir. 2001) (“Earnings can be a presumptive, but not conclusive, 

sign of whether a job is substantial gainful activity. Monthly earnings 

averaging less than $300 generally show that a claimant has not engaged in 

substantial gainful activity.”); Garnett v. Sullivan, 905 F.2d 778, 780 n.1 (4th 

Cir. 1990) (“[I]f a claimant’s earnings averaged less than $190 per month, a 

presumption arose that the claimant was not engaged in SGA.”). In at least 

one case before this court, the Commissioner acknowledged that under the 

prior guidelines a rebuttable presumption against SGA arose for belowthreshold earnings. See Brief for Defendant-Appellee at 10, Rutherford v. 

Shalala, 43 F.3d 670 (5th Cir. 1994) (No. 94-60453), 1994 WL 16138316, at *10 

(“The Secretary’s regulations likewise provide a presumption against SGA for 

4 The language in the current regulation for earnings below the threshold amounts is 

indistinguishable from the previous one that these courts, and even the Commissioner,

recognized created a rebuttable presumption against SGA. Compare § 404.1574(b)(3)(i) 

(current) (“If your average monthly earnings are equal to or less than the amount(s) 

determined under paragraph (b)(2) . . . , we will generally consider that the earnings from 

your work as an employee . . . will show that you have not engaged in substantial gainful 

activity.”), with 20 C.F.R. § 404.1574(b)(3) (repealed January 29, 2001) (“We will generally 

consider that the earnings from your work as an employee will show that you have not 

engaged in substantial gainful activity if—(b)(3)(i) Your earnings averaged less than $130 a 

month.”).

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earnings averaging less than $190 a month in calendar years after 1979 and 

before 1990 . . . .”).

The Commissioner argues that the current regulations contain a small 

but significant difference that accounts for the presumption that arises with 

above-SGA earnings but vanishes with below-SGA earnings: while 

§ 404.1574(b)(2) states that “[w]e will consider that your earnings from your 

work activity as an employee . . . show that you engaged in substantial gainful 

activity,” its counterpart regulation states that “we will generally consider that 

the earnings from your work as an employee . . . will show that you have not 

engaged in substantial gainful activity.” § 404.1574(b)(3)(i) (emphasis added). 

The absence of the word “generally” in the first regulation and its presence in 

the second, the Commissioner explains, is why a presumption arises in favor 

of SGA when earnings exceed the guidelines but not against SGA when 

earnings are below the guidelines.

But the Commissioner disregards the similarities between the two 

sections. Compare § 404.1574(b)(2) (“[E]arnings that will ordinarily show that 

you have engaged in substantial gainful activity.”), with § 404.1574(b)(3) 

(“[E]arnings that will ordinarily show that you have not engaged in substantial 

gainful activity.”). Additionally, other language in the current regulations

suggests that a presumption exists if a claimant’s earnings are below the 

guidelines. The Commissioner “will generally consider” that the earnings “will 

show that [the claimant has] not engaged in substantial gainful activity,” and 

will “generally not consider other information in addition to [the] earnings 

except in the circumstances described in paragraph (b)(3)(ii)” of the regulations. 

§ 404.1574(b)(3)(i) (emphasis added).

The prior regime—which was unanimously viewed as creating a 

rebuttable presumption against SGA for below-threshold earnings—also 

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shows that a rebuttable presumption favoring a claimant, while perhaps 

unusual, is not incompatible with the plaintiff’s burden of proof. In Lewis, the 

Ninth Circuit described how this burden functions:

The presumption that arises from low earnings shifts the step-four 

burden of proof from the claimant to the Commissioner. . . . With 

the presumption, the claimant has carried his or her burden unless 

the ALJ points to substantial evidence, aside from earnings, that 

the claimant has engaged in substantial gainful activity. The 

regulations list five factors: the nature of the claimant’s work, how 

well the claimant does the work, if the work is done under special 

conditions, if the claimant is self-employed, and the amount of time 

the claimant spends at work.

236 F.3d at 515–16 (citation omitted). Rebuttable presumptions that may 

favor a claimant also exist in other areas of Social Security law. See, e.g., 

Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001) (holding that a low 

IQ test taken after age 22 creates a rebuttable presumption of intellectual

disability dating back to one’s youth). 

The ALJ did not substantively discuss Copeland’s earnings, which even 

the Commissioner appears to agree were below the threshold set forth in 

§§ 404.1574(b)(2) and 416.974(b)(2). There is only one passing reference to an 

earnings exhibit in the opinion denying benefits. 

We hold that a rebuttable presumption against substantial gainful 

activity arises where a disability claimant’s earnings are below the threshold 

set by the regulations. On remand, the Commissioner is free to urge, if he can,

why Copeland, despite her low earnings, is nonetheless able to engage in SGA 

and thus not entitled to benefits. But the Commissioner’s failure to address 

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Copeland’s earnings and apply the presumption in this case is grounds for 

reversal.5

IV.

For the foregoing reasons, we VACATE and REMAND the district court’s 

dismissal of Copeland’s complaint for proceedings not inconsistent with this 

opinion. We express no view as to Copeland’s ultimate entitlement to disability 

benefits.

5 Because of our holding on the presumption, we do not reach Copeland’s claim that the 

Commissioner’s denial of benefits was not supported by substantial evidence. We express no opinion 

on that issue.

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