DISCUSSION

For an individual to receive benefits under the Social Security Act (the “Act”), she must
first be found to have a disability. 42 U.S.C. § 423(a)(1)(D); McDonald v. Bowen, 818 F.2d 559,
562 (7th Cir. 1986). There is no dispute that Hannemann was previously found to suffer from a
disability under the Act, with an onset date of June 3, 1984. (R. 73.) However, an individual is
not considered disabled if “the claimant is working and the work constitutes substantial gainful
activity.” McDonald, 818 F.2d at 562 (citing 20 C-F.R. 404.1520(b)). With respect to an
individual previously found to be disabled who wishes to test her disability status, the Act
provides a trial work period. See 20 C.F.R. § 404.1592(a). “A trial work period enables an
individual to test his or her ability to return to work,” and any services performed during this
period “shall be deemed not to have been rendered by such individual in determining whether his
disability has ceased in a month during such duration.” McDonald, 818 F.2d at 563 (citing 20
CFR. § 404.1592(a) and 42 U.S.C. § 422(c)(2)).

The trial work period begins with the month in which a claimant becomes entitled to
disability insurance benefits and ends with the ninth month (whether or not the months have been
consecutive) in which the claimant performs “services.” 20 C.F.R. § 404.1592(a) and (e).
“Services” are defined as any activity done in employment or self-employment for pay or profit,
or is the kind normally done for pay or profit. 42 U.S.C. § 422(c)(2); 20 C.F.R. § 404.1592(b).
In calendar years 1979-89, work as an employee was considered “services” if the individual’s net
earning exceeded $75 in that month or if the individual worked more than 15 hours. 20 C.F.R.

§ 404.1592(b) (Table 1). After the trial work period ends, the work performed is considered “in


for nine days work as a substitute teacher. (R. 78, 80, 201-04.) She also earned more than $500
monthly in many months of work as a substitute teacher and in work for other employers
thereafter. (R. 80, 219-31.) Because monthly earnings of $500 or more are presumed to reflect
substantial gainful activities and because Hannemann did not provide any evidence to suggest
otherwise, the ALJ reasonably concluded that Hannemann could not be paid disability insurance
benefits as of January 1994 because, with her return to performing substantial gainful activities,
her 36 month re-entitlement period elapsed and her extended period of eligibility terminated.
Thus, the ALJ also reasonably concluded that the disability insurance benefits paid to
Hannemann from January 1994 to January 1998 constituted an overpayment. The ALJ did not
discuss the issue of waiver of overpayment because no request for waiver had been made. (R.
21: “To this date, no waiver form has been filed on the current overpayment.”) Hannemann may
request a waiver of collection of the overpayment consistent with 42 U.S.C. § 404 and 20 C.F.R.
§ 404.501 et seq.
CONCLUSION
For the reasons stated above, defendant’s motion for summary judgment is granted [#8].

The clerk is instructed to enter judgment in favor of the defendant. This case is terminated.

Enter: pan kKhefbaar—

(AN HUMPHREYLEFKOW
United States District Judge

Date: October 8, 2003



clarified that she was not addressing any waiver of collection of the overpayment because no
request for waiver had been filed. (R. 21.) The ALJ issued an amended decision on
December 15, 1999, to eliminate references to supplemental security income benefits, which
were not at issue in the ALJ’s decision. (R. 12.)

Hannemann requested review of the ALJ’s decision to the Appeals Council, which
request was subsequently denied. (R. 9-13.) Thus, the ALJ’s decision stands as the
Commissioner’s final decision in this matter. Hannemann now seeks judicial review of this final
decision pursuant to 42 U.S.C. § 405(g).

STANDARDS

The ALJ’s findings of fact must be upheld if supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence” means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971); Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995). A federal court may not reevaluate the
facts, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Diaz,
55 F.3d at 305. Where conflicting evidence allows reasonable minds to differ as to whether a
claimant is entitled to benefits, the responsibility for that decision falls on the Commissioner, not
the court. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). Conclusions of law are not
entitled to deference; if the Commissioner commits an error of law, reversal is required without
regard to the volume of evidence in support of the factual findings. Binion v. Chater, 108 F.3d

780, 782 (7th Cir. 1997).



determining whether your disability ended at any time after the trial work period.” 20 C.F.R.
§ 404.1592(a).

The first time an individual works after the end of the trial work period and engages in a
“substantial gainful activity,” his or her benefits may be stopped. 20 C.F.R. § 404.1592a(a)(1).
A substantial gainful activity is work that (1) involves doing significant and productive physical
or mental duties and (2) is done (or intended) for pay or profit. 20 C.F.R. § 404.1510. An
individual is presumed to have engaged in a substantial gainful activity during the years 1980-89
in any month in which she earned $300 or more. 20 C.F.R. § 404.1574(b)(2)(i)(Table 1).
However, the Act provides for an extended period of eligibility, the first 36 months of which is
referred to as the “re-entitlement period.” 42 U.S.C. § 423(e)(1). This period allows a “disabled
individual who completes his nine-month trial work period [to] continue to test his ability to
work for an additional thirty-six months.” Napier v. Apfel, No. 98 C 6826, 2000 WL 44864, at
*6 (N.D. Ill. Jan. 3, 2000). During this re-entitlement period, an individual “is paid benefits only
for the first three months during which he works, but can receive benefits, without filing a new
application, for those months in which he does not work. Id. (citing 42 U.S.C. § 423(e)(1) and
20 C.F.R. § 404.1592a(a)). If the individual is not engaging in a substantial gainful activity in
month 37 after the conclusion of the trial work period, the individual will continue to receive
disability insurance benefits until the first month in which earnings exceed the substantial gainful
activity level. 20 C.F.R. § 404.316(d). At that point, the extended period of eligibility ends and
no further disability insurance benefits are issued. Jd.

In this case, the ALJ first determined that plaintiff’s trial work period ended prior to

November 1987. The court agrees. There is substantial evidence that plaintiff performed


Minute Order Form (06°97)

United States District Court, Northern District of Minois

Name of Assigned Jud; z Sitting Judge if Oth
vor Magistrate Judge Joan H. Lefkow than Assigned Judge
CASE NUMBER 02 C 3736 DATE 10/8/2003
CASE Hannemann vs. Jo Anne B. Barnhart
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

@) im Answer brief to motion due___. Reply to answer brief due.

(4) oO Ruling/Hearingon_____setfor_—at_

(5) oO Status hearing[held/continued to] [set for/re-set for]on____—setfor_——sat_
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—at__
(7) Qo Trial[set for/re-set for] on__at.

(8) a [Bench/Jury trial] [Hearing] held/continued to___at

(9) a This case is dismissed {with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (CLocal Rule 41.1 OFRCP41(a)(1) C1 FRCP41(a)(2).

do) of [Other docket entry] | Enter Memorandum Opinion and Order. Defendant’s motion for summary
judgment [8-1] is granted. Judgment entered in favor of defendant.

al) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
3

No notices required,

number of notices

X_ | Notices mailed by judge’s staff.

Notified counsel by telephone. oct Q 9.2003

Docketing to mail notices.
X_ | Mail AO 450 form. Mailed by MD. Sf dockeing de Fits

Copy to judge/magistrate judge.

10/9/2003
dite mailed novice
courtroom
MD deputy's Sit eat MD
initials

central Clerk's Office mailing deputy initials



“services” for at least nine months prior to that date, including from February-July 1985,
December 1985, and January-February 1986. (R. 139, 147, 159, 161-62, 174.)

Moreover, the ALJ concluded that Hannemann’s disability ceased in November 1987
because that was the first month she performed a substantial gainful activity after her trial work
period ended. (R. 20.) Substantial evidence also supports this conclusion. As the ALJ noted,
Hannemann worked as a data editor beginning in October 1988. This employment constituted a
substantial gainful employment activity, as Hannemann eared $283.66 in October 1987 and
$1,134.62 per month from November 1987 to March 1988. (R. 165, 193.) Thus, the court
accepts the ALJ’s conclusion that this work activity Hannemann performed was a substantial
gainful activity and, therefore, that her disability ceased beginning in November 19873

While Hannemann’s disability ceased in November 1987, Hannemann’s extended period
of eligibility did not terminate until January 1994. (R. 22.) The reason for the long delay in the
extended period of eligibility was because Hannemann did not perform any substantial gainful

activities for several years after July 1988. In January 1994, however, Hannemann earned $585

>The ALJ also considered whether Hannemann’s work activity as a data editor in 1987-88 could be
considered as an “unsuccessful work attempt.” An unsuccessful work attempt is work a claimant performed for a
period of six months or less where an impairment “forced [the claimant] to stop working or to reduce the amount of
work . . . so that [the claimant’s] earnings from such work falls below the substantial gainful activity earnings... .”
20 C.F.R. § 404.1574(c)(1). The ALJ considered Hannemann’s work under 20 C.F.R. § 404.1574(c)(4), which
applies when the claimant worked between three and six months. Under that regulation, an unsuccessful work
attempt may be found where the claimant (1) was frequently absent from work because of her impairment; (2) could
not perform work satisfactorily because of the impairment; (3) worked during a period of temporary remission of the
impairment; or (4) worked under special conditions that were essential to . . . performance and these conditions were
removed. Under this standard, the ALJ concluded that Hannemann’s work activity could not be considered an
unsuccessful work attempt. The decision is supported by substantial evidence. Hannemann reported that she
performed the job five days a week from October 1987 to June 1988, apparently for 35 hours per week. (R. 125,
139.) Hannemann did not present any evidence of special considerations that she worked under which were
removed. Nor was there evidence from her employer that she was frequently absent, that her work was
unsatisfactory, or that she worked under special conditions. Thus, the ALJ reasonably concluded that Hannemann’s
work activity did not constitute an unsuccessful work attempt.

6



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
VIRGINIA HANNEMANN, )
)
Plaintiff, )
)
vs. ) No. 02 C 3736
) Judge Joan H. Lefkow
JO ANNE B. BARNHART, )
Commissioner of Social Security, ) Fy aang ymers
) DOCKETED
Defendant. y
) OCT 0 9 2093

MEMORANDUM OPINION AND ORDER

Plaintiff, Virginia Hannemann (“Hannemann”), brings this action for judicial review of
the Commissioner of the Social Security Administration’s final decision that Hannemann’s
Social Security disability insurance benefits were properly ceased in November 1987, and that
her subsequent work activity resulted in an overpayment of benefits in the amount of $31,804.50.
This court has jurisdiction to review the Commissioner’s decision under 42 U.S.C. §§ 405(g) and
1383(c)(3). Before the court is the defendant’s motion for summary judgment.’ For the reasons
stated below, the motion is granted.

FACTS?

On June 3, 1984, Hannemann was found to be disabled due to Manic Bipolar Disorder

and entitled to disability insurance benefits. (R. 73.) Thereafter, she performed a variety of jobs

with varying degrees of success and duration. (R. 79.) In 1985 she worked as both a receptionist

‘Hannemann did not file a responsive brief to the defendant’s motion.

>Citations are to the certified administrative record prepared by the Commissioner and filed with this court

pursuant to 42 U.S.C. § 405(g).


in an insurance office and as a secretary for a motel. (R. 139.) In 1985-86, she worked as a
telephone operator at a telemarketing company. (/d.) From January to June 1988, she worked as
a data editor for a publishing company with a monthly salary in excess of $1,000. (Id.)
Hannemann also had substantial earnings in 1993-96 and 1998. (R. 175, 201-15, 219-25, 231.)
In 1997, Hannemann’s disability was subject to a continuing disability review, and the
Social Security Agency made initial and reconsideration determinations that Hannemann had
completed a trial work period and began performing substantial gainful activity, such that under
the Commissioner’s regulations her disability was found to have ceased as of November 1987.
(R. 73-105.) Through her counsel, Hannemann requested an administrative hearing. (R. 88.)
Administrative Law Judge (“ALJ”) Cynthia M. Bretthauer held a hearing on November 5, 1999.
(R. 25-36.) Ina decision dated December 8, 1999, the ALJ framed the general issue as “whether
the claimant continues to be entitled to a period of disability under section 216(1) and to disability
insurance benefits under 23(a) of the Social Security Act, and under section 1614(a)(4) of the
Act.” (R. 18.) More specifically, the ALJ posed the issue as whether “the claimant’s work
activity after she was found entitled to disability insurance benefits and supplemental income,
demonstrates that she has regained the ability to engage in substantial gainful activity and, if so,
the date on which her disability ceased.” (/d.) The ALJ found that Hannemann’s disability
insurance benefits ceased in November 1987, the first month of substantial gainful activity after a
nine-month trial work period. (R. 22.) The ALJ further found that Hannemann’s period of
disability ended effective December 31, 1993, that her extended period of eligibility benefit
termination month was January 1994, and that there was an overpayment to Hannemann in the

amount of $31,804.50 for the period of January 1994 through January 1998. (/d.) The ALI