IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JENNIFER A. DISALVATORE, :

Plaintiff, :

vs. : CA 14-0485-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), 

seeking judicial review of a final decision of the Commissioner of Social Security 

denying her claims for a period of disability, disability insurance benefits, and 

supplemental security income. The parties have consented to the exercise of 

jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all 

proceedings in this Court. (Docs. 16 & 18 (“In accordance with the provisions of 

28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a 

United States Magistrate Judge conduct any and all proceedings in this case, . . . 

order the entry of a final judgment, and conduct all post-judgment 

proceedings.”).) Upon consideration of the administrative record, plaintiff’s brief, 

the Commissioner’s brief, and the arguments of counsel at the October 29, 2015 

hearing before the Court, it is determined that the Commissioner’s decision 

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denying benefits should be reversed and remanded for further proceedings not 

inconsistent with this decision.

1

 

I. Procedural History, Standard of Review, and the ALJ’s Decision

A. Procedural History

On May 10, 2011, Plaintiff filed an application for Disability Insurance 

Benefits alleging a disability onset date of June 30, 2010. (Tr. 154–155, 156–162). 

On the same day, Mrs. DiSalvatore also filed an application for Supplemental 

Security Income (herein “SSI”) benefits (Tr. 163-171), with a protective filing date 

of April 25, 2011 (See Tr. 66).2 The claims of Mrs. DiSalvatore for benefits were 

initially denied by notice dated June 17, 2011 (Tr. 69-73, 74-79).

On July 13, 2011, Mrs. DiSalvatore requested a hearing (Tr. 82-83). 

Pursuant to that request, a hearing was held on October 31, 2012 before an 

Administrative Law Judge (“ALJ”) (Tr. 43-65). Following that initial hearing, the 

ALJ ordered an additional psychological evaluation. An evaluation was arranged 

for November 19, 2012, and the record was supplemented with the report from 

that additional evaluation (Tr. 751-59 & 760-62).

A supplemental hearing was held on April 10, 2013 (Tr. 29-42). Following 

the supplemental hearing, the ALJ issued a decision dated May 1, 2013 denying 

 1 Any appeal taken from the judgment shall be made to the Eleventh Circuit Court 

of Appeals. (See Docs. 16 & 18 (“An appeal from a judgment entered by a Magistrate 

Judge shall be taken directly to the United States Court of Appeals for this judicial 

circuit in the same manner as an appeal from any other judgment of this district court.”))

2 “Disability Insurance Benefits are paid to disabled persons who have contributed 

to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income 

(“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both 

provisions, disability is defined, in part, as an ‘inability to engage in any substantial 

gainful activity’ due to ‘a medically determinable physical or mental impairment.’ 42 

U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).” LePage v. Colvin, 2015 WL 5734836, *1, n. 1 (E.D.

Cal. Sept. 29, 2015)

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Mrs. DiSalvatore the benefits for which she applied (Tr. 12-28). Mrs. DiSalvatore 

timely requested review of the ALJ’s decision by the Appeals Council in a 

request for review dated May 22, 2013 (Tr. 7 & 9), but the Appeals Council 

denied Mrs. DiSalvatore’s request for review by notice dated September 4, 2014 

(Tr. 1-6), thus making the ALJ’s decision of May 1, 2013 the final decision of the 

Commissioner of Social Security. Mrs. DiSalvatore, having exhausted her 

administrative remedies, timely filed the present civil action requesting judicial 

review of the Commissioner’s decision, which is ripe for review pursuant to 42 

U.S.C. §§ 405(g) and 1383(c)(3).

B. Standard of Review

A claimant is entitled to an award of disability insurance benefits or 

supplemental security income when she is unable to engage in substantial 

gainful activity by reason of any medically determinable physical or mental 

impairment which can be expected to result in death or last for a continuous 

period of not less than 12 months. See 20 C.F.R. §§ 404.1505(a), 416.905(a) (2016). 

In determining whether a claimant has met her burden of proving disability, the 

Commissioner follows a five-step sequential evaluation process. See 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4). At step one, if a claimant is performing substantial 

gainful activity, she is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). At the 

second step, if a claimant does not have an impairment or combination of 

impairments that significantly limits her physical or mental ability to do basic 

work activities (that is, a severe impairment), she is not disabled. 20 C.F.R. §§ 

404.1520(c), 416.920(c). At step three, if a claimant proves that her impairments 

meet or medically equal one of the listed impairments set forth in Appendix 1 to 

Subpart P of Part 404, the claimant will be considered disabled without 

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consideration of age, education and work experience. 20 C.F.R. §§ 404.1520(d),

416.920(d). At the fourth step, if the claimant is unable to prove the existence of a 

listed impairment, she must prove that her physical and/or mental impairments 

prevent her from performing her past relevant work. 20 C.F.R. §§ 404.1520(f),

416.920(f). And at the fifth step, the Commissioner must consider the claimant’s 

residual functional capacity, age, education, and past work experience to 

determine whether the claimant can perform other work besides past relevant 

work. 20 C.F.R. §§ 404.1520(g), 416.920(g). 

Plaintiff bears the burden of proof through the first four steps of the 

sequential evaluation process, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 

2287, 2294 n.5, 96 L.Ed.2d 119 (1987), and while the burden of proof shifts to the 

Commissioner at the fifth step of the process to establish other jobs existing in 

substantial numbers in the national economy that the claimant can perform,3 the 

ultimate burden of proving disability never shifts from the plaintiff, see, e.g., 

Green v. Social Security Administration, 223 Fed.Appx. 915, 923 (11th Cir. May 2, 

2007) (“If a claimant proves that she is unable to perform her past relevant work, 

in the fifth step, ‘the burden shifts to the Commissioner to determine if there is 

other work available in significant numbers in the national economy that the 

claimant is able to perform.’ . . . Should the Commissioner ‘demonstrate that 

there are jobs the claimant can perform, the claimant must prove she is unable to 

perform those jobs in order to be found disabled.’”). 4

 3 See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004) 

(“The burden [] temporarily shifts to the Commissioner to demonstrate that ‘other work’ 

which the claimant can perform currently exists in the national economy.”).

4 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir.R. 36-2.

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The task for the Magistrate Judge is to determine whether the 

Commissioner’s decision to deny Plaintiff benefits, on the basis that she is 

capable of performing her past relevant work as a bookkeeper, is supported by 

substantial evidence. Substantial evidence is defined as more than a scintilla and 

means such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 

842 (1971). “In determining whether substantial evidence exists, we must view 

the record as a whole, taking into account evidence favorable as well as 

unfavorable to the Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 

(11th Cir. 1986).5 Courts are precluded, however, from “deciding the facts anew 

or re-weighing the evidence.” Davison v. Astrue, 370 Fed. Appx. 995, 996 (11th 

Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th 

Cir. 2005)). And, “[e]ven if the evidence preponderates against the 

Commissioner’s findings, [a court] must affirm if the decision reached is 

supported by substantial evidence.” Id., citing Crawford v. Commissioner of Social 

Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004).

C. ALJ's Decision

The ALJ determined that Plaintiff last met the insured status requirements 

of the Social Security Act on December 31, 2013. (Tr. 17). At step one of the 

sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial 

gainful activity from June 30, 2010, the alleged onset date, through the date of his 

opinion. (Id.) At step two, the ALJ found that the Plaintiff suffered from the 

 

5 This Court’s review of the Commissioner’s application of legal principles, 

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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following severe impairments: obesity; bipolar disorder; personality disorder; 

anxiety disorder; hypertension; and asthma. (Id.) At step three, the ALJ 

determined that Plaintiff did not have an impairment or combination of 

impairments that meets or medically equals the severity of any of the listed 

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18). At step 4, the 

ALJ determined that the Plaintiff has the residual functional capacity (“RFC”) to 

perform a limited range of sedentary work. (See Tr. 20). He further found that 

Plaintiff was limited to work that will only require that she: lift and carry up to 

100 pounds occasionally, 20 pounds frequently, and 10 pounds continuously; sit 

4 hours at one time and 6 hours during an 8-hour workday; stand and/or walk 2 

hours at one time and 4 hours during an 8-hour work day; frequently reach, 

handle, finger, feel, push, and pull; frequently operate foot controls; occasionally 

climb ladders or scaffolds; frequently climb stairs and ramps; frequently balance 

stoop, kneel, crouch, and crawl; never work around unprotected heights, 

humidity, wetness, dust, odors, fumes, and pulmonary irritants; occasionally 

work around moving mechanical parts, extreme temperatures and vibrations; 

frequently operate a motor vehicle; and occasionally interact with the general 

public and supervisors. (Id.) The ALJ determined that Plaintiff could return to 

her past relevant work as a bookkeeper (DOT Code 210.382-014), which is a 

sedentary, skilled occupation. (Tr. 23). Furthermore, he found that this work 

does not require the performance of work-related activities precluded by 

Plaintiff's RFC. (Tr. 20-23).

II. Analysis

Plaintiff raises three issues on appeal. As stated by Plaintiff, they are:

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1. The ALJ erred in rejecting the opinions of Mrs. DiSalvatore’s treating 

psychiatrist, Donna Earnshaw, M.D. Mrs. DiSalvatore has been treated by the 

healthcare professionals at the Baldwin County Mental Health Center, including 

her treating psychiatrist, Dr. Earnshaw, since December of 2010 (Tr. 665-79, 711-

12, 720, 723-24, 741-42, 743-48, 773).

2. The ALJ erred in failing to properly assess the credibility of Mrs. 

DiSalvatore.

3. Whether the ALJ properly determined that the Plaintiff's past relevant 

work as a “bookkeeper” was in fact past relevant work, given that the Plaintiff’s 

bookkeeper work was sheltered work and does not qualify as past relevant work.

The undersigned has reviewed the record, the briefs of the parties and 

listened to oral arguments. After this review, it is determined that the ALJ’s 

decision to deny benefits at the fourth step of the sequential evaluation process is 

not supported by substantial evidence. Since this decision requires a remand for 

further consideration of Claimant’s petition for disability benefits, it is not 

necessary for this Court to address all of plaintiff’s other assignments of error. 

See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (“Because the ‘misuse 

of the expert’s testimony alone warrants reversal, we do not consider the 

appellant’s other claims.”). 

A. Whether Claimant is Able to Perform Her Past Work as a 

Bookkeeper as Normally Required by Employers in the National 

Economy.

Claimants seeking disability benefits clearly are responsible for showing 

that they are unable to perform past relevant work as they actually performed it, 

or as it is performed in the general economy. Waldrop v. Commissioner of Social 

Sec., 379 Fed.Appx. 948, 953 (11th Cir. May 21, 2010), citing Jackson v. Bowen, 801 

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F.2d 1291, 1293-1294 (11th Cir. 1986). Even so, the Commissioner has the 

obligation to develop a full and fair record in order to prevent speculation or 

conjecture on such a critical question. Schnorr v. Bowen, 816 F.2d 578, 581 (11th 

Cir. 1987) (“Where there is no evidence of the physical requirements and 

demands of the claimant's past work and no detailed description of the required 

duties was solicited or proffered, the Secretary cannot properly determine 

whether the claimant has the residual functional capacity to perform his past 

relevant work.”) (citing Nelms v. Bowen, 803 F.2d 1164, 1165 (11th Cir.1986) and 

Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981)). Toward that end, an ALJ 

must consider all of the duties of past relevant work and evaluate a plaintiff’s 

ability to perform the past relevant work in spite of her impairments. Levie v. 

Commissioner of Social Sec., 514 Fed.Appx. 829, 831 (11th Cir. Mar. 25, 2013), citing

Lucas v. Sullivan, 918 F.2d 1567, 1574 n. 3 (11th Cir. 1990) (remanding for 

evaluation of all of claimant's impairments and the effect they have on her ability 

to fulfill the duties of her past relevant work). In those instances where claimants 

are found to have the ability to perform a past relevant job even with severe 

impairments, the ALJ’s opinion should contain the following specific findings of 

fact: “1. A finding of fact as to the individual’s RFC. 2. A finding of fact as to the 

physical and mental demands of the past job/occupation. 3. A finding of fact that 

the individual’s RFC would permit a return to his or her past job or occupation.”

SSR 82-62, 1982 WL 31386, *4 (1982).

6 In cases, like this one, that involve “a 

 6 “Social Security Rulings are agency rulings published under the Commissioner’s 

authority and are binding on all components of the Administration. Even though the 

rulings are not binding on us, we should nonetheless accord the rulings great respect 

and deference[.]” Klawinski v. Commissioner of Social Sec., 391 Fed.Appx. 772, 775 (11th 

Cir. Aug. 6, 2010) (citations omitted).

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mental/emotional impairment, care must be taken to obtain a precise description 

of the particular job duties which are likely to produce tension and anxiety ... in 

order to determine if the claimant's mental impairment is compatible with the 

performance of such work.” Id. at *3. ALJs are required to make “every effort ... 

to secure evidence that resolves the issue as clearly and explicitly as 

circumstances permit.” Id.

Social Security Ruling 82–61 recognizes three possible tests for 

determining whether or not a claimant retains the capacity to perform her past 

relevant work. They are as follows:

1. Whether the claimant retains the capacity to perform 

a past relevant job based on a broad generic, occupational 

classification of that job, e.g., “delivery job,” “packaging job,” etc.7

2. Whether the claimant retains the capacity to perform 

the particular functional demands and job duties peculiar to an 

individual job as he or she actually performed it.

3. Whether the claimant retains the capacity to perform 

the functional demands and job duties of the job as ordinarily 

required by employers throughout the national economy.8

Id. Under § 404.1520(e) of the Commissioner’s regulations, a claimant will be 

found to be “not disabled” when it is determined that she retains the residual 

functional capacity to perform the actual functional demands and job duties of a 

particular past relevant job or the functional demands and job duties of the 

 7 As recognized in the ruling, use of this test is likely to be “fallacious and 

insupportable” because “[w]hile ‘delivery jobs,’ ‘packaging jobs,’ etc., may have a 

common characteristic, they often involve quite different functional demands and duties 

requiring varying abilities and job knowledge.”

8 The Dictionary of Occupational Titles’ descriptions can be relied upon to define 

the job as it is usually performed in the national economy.

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occupation as generally required by employers throughout the national 

economy. Id.

At step 4, the initial issue to be resolved by the ALJ is the question of 

whether the claimant retains the ability, given her limitations, to perform her 

past relevant work as it was actually performed. SSR 96-8p (“At step 4 of the 

sequential evaluation process, the RFC must not be expressed initially in terms of 

the exertional categories of ‘sedentary,’ ‘light,’ ‘medium,’ ‘heavy,’ and ‘very 

heavy’ work because the first consideration at this step is whether the individual 

can do past relevant work as he or she actually performed it.”); 1996 WL 374184, 

at *3. Claimants are considered the primary sources for this vocational 

information, and “statements by the claimant regarding past work are generally 

sufficient for determining the skill level, exertional demands and nonexertional 

demands of such work.” SSR 82-62 at *3. As additional sources, ALJs are also 

given the discretion to obtain vocational information from a VE or the Dictionary 

of Occupational Titles (“DOT”) in aid of resolving the question of whether 

claimants are able to actually perform the duties of their prior jobs. 20 C.F.R. §§ 

404.1560(b)(2), 416.960(b)(2); SSR 82–61.

If the ALJ determines that the claimant lacks the RFC to complete the tasks 

and duties of her former jobs as they were actually performed, the next issue at 

the fourth step becomes whether she would be able to perform her former jobs as 

they were generally performed in the national economy. SSR 96-8p. The sources 

generally consulted to obtain evidence that will assist in resolving this issue are 

the DOT and the testimony of a VE. If the testimony of the VE is contradicted by 

the DOT, the VE's testimony trumps the DOT. Jones v. Commissioner of Social Sec., 

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423 Fed.Appx. 936, 938 (11th Cir. Apr. 19, 2011), citing Jones v. Apfel, 190 F.3d 

1224, 1229-1230 (11th Cir. 1999).

In this action, the initial inquiry of whether the Claimant was able to 

perform the duties of her prior job as it was actually performed was skipped or 

omitted from the ALJ’s analysis. Instead, after an RFC was established and the 

VE had classified the Plaintiff’s prior jobs within the DOT, the ALJ found that she 

was able to perform the job of bookkeeper as it was described in DOT Code 

210.382-014. (Tr. 23).

9 The VE was not asked whether the Plaintiff would be able 

to perform the bookkeeper job she identified in light of the limitations imposed 

by her RFC, nor was any explanation given as to why the Plaintiff was not able to 

perform any of the other jobs identified by the VE. 

The Plaintiff was asked to provide vocational information about her prior 

work and her reasons for not being able to perform any of the prior jobs she 

listed. Some of the information came from forms that she completed and filed 

with the Commissioner and the rest was provided through her testimony. The 

claimant testified on two occasions: October 31, 2012 (Tr. 43-65) and April 10, 

2013 (Tr. 29-42). During her testimony on October 31, 2012, she reported a 

variety of work that she had performed in the past. The list includes data entry, 

minor accounting, dealing blackjack at a casino, answering phones, helping with 

corporate paperwork, making payroll, supervising other employees and 

 9 Although the VE identified several job classifications in response to the ALJ’s 

question of whether she was “able to match it up with any work that appears in the 

Dictionary of Occupational Titles[,]” the only job the ALJ found that Mrs. DiSalvatore

was able to perform was that of a bookkeeper. In addition to bookkeeper, the other 

former jobs were identified as: data entry, DOT number 203.582-054, sedentary, semiskilled, SVP 4; gambling dealer, DOT number 343.464-010, light, semi-skilled, SVP 3; 

telephone solicitor, DOT number 299.357-014, sedentary, semi-skilled, SVP 3; and 

receptionist, DOT number 237.367-038, sedentary, semi-skilled, SVP 4. (Tr. 23).

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scheduling. During the hearing held on April 10, 2013, upon additional

questioning by the ALJ regarding her prior occupations, she reported working 

for Ken Chatfield and Jennifer Chatfield with duties of “answering phones”, 

“doing some of – some more corporate paperwork like kind of accounting” and 

ultimately she was responsible for “more of the managerial paperwork” and 

supervising “the girls answering the phones ... like doing scheduling and stuff.” 

(Id. at 35).

10

In response to the ALJ’s question of why she felt she could no longer 

perform the tasks required in her former jobs, she identified the stress that 

overwhelmed her and told him how desperately she wanted to be relieved of 

any responsibility of speaking with or dealing with the public. (Id. at 36). She also 

testified that the Chatfields attempted to work with her by taking away any 

responsibility for answering the phones and allowing her to focus on paperwork 

and supervision of the girls on staff. (Id. at 36-37). Eventually, the Chatfields sold 

the business to the claimant and her husband and she assumed the accounting

duties but found that working at the office was too stressful and was allowed to 

work from home where there were “no girls, no phones, no nothing.” (Id. at 37). 

Her testimony was that even after trying to work from home, she failed because 

she was “foggy-brained” and “became like a zombie.” (Id. at 37-38). Her 

testimony was that she could not handle working in her former jobs or 

completing her home chores because “the smallest things freak [her] out.” (Id.) 

The Plaintiff also identified her IBS condition as a contributor to stress in the 

 10 The Work History Report dated May 22, 2011 (Tr. 469) listed jobs of bookkeeper, 

receptionist, call center representative, blackjack/roulette dealer, cashier, data entry 

clerk, and office temp (id. at 470). She also completed a work background report that 

was included in the record (see Tr. 511-514).

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workplace that was made a “little worse” after several changes had been made to 

her medication. (Id. at 39).

Since all the Plaintiff’s testimony regarding her prior jobs and the physical 

and mental demands of those jobs were not discussed by the ALJ, it is difficult to 

discern what his findings were with regard to Plaintiff’s ability to perform a 

prior job as it was actually performed. From the opinion, it is clear that the ALJ 

ruled out all former jobs except for that of bookkeeper. In addition, since the ALJ 

did not discuss or identify the specific job requirements, both physical and 

mental, of her former work as a bookkeeper, it appears that he determined that 

she could not perform those duties because of the significant work-related 

limitations and moved to the next question of whether she could perform the job 

of bookkeeper as generally required in the national economy. 

In reaching the conclusion that the Plaintiff could perform the duties of a 

bookkeeper as generally required, the ALJ first determined that Mrs. 

DiSalvatore’s ability to perform the full range of sedentary work was limited by 

her mental RFC and non-exertional impairments. (Tr. 20 (“The claimant has the 

residual functional capacity to perform sedentary work ... except the claimant is 

limited to work which will only require the claimant to: ... frequently reach, 

handle, finger, feel, push, and pull; frequently operate foot controls; occasionally 

climb ladders or scaffolds; frequently climb stairs and ramps; frequently balance, 

stoop, knee[l], crouch, and crawl; never work around unprotected heights, 

humidity, wetness, dust, odors, fumes, and pulmonary irritants; occasionally 

work around moving mechanical parts, extreme temperatures and vibrations; 

frequently operate a motor vehicle; and occasionally interact with the general 

public and supervisors.”)). When the ALJ compared the Plaintiff’s limitations 

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with the work demands of a bookkeeper as delineated in the DOT, he found that 

she would be able to perform the duties of a bookkeeper. This important finding 

was made, however, without asking the VE, who was available during the 

hearing, if Mrs. DiSalvatore would be able to perform the general duties of a 

bookkeeper given the specific limitation of only being able to occasionally 

interact with the general public and her supervisors. Since the DOT description 

of duties does not specifically account for this limitation, and the record does not 

contain any evidence that would support the conclusion that bookkeeper jobs in 

the national economy would be available to an applicant with this particular 

mental/emotional limitation, the finding by the ALJ is without evidentiary 

support.

The clear failure of the ALJ to carefully explore the physical and mental 

requirements of the Claimant’s former work as a bookkeeper and further, to 

complete the record with vocational evidence that the DOT classification of 

bookkeeper would be available for people with Claimant’s specific RFC, 

prevents this Court from being able to find that substantial evidence is contained 

in this record to support the conclusion that the Plaintiff is able to perform the 

job of bookkeeper as required in the national economy. A remand is necessary so 

that the Commissioner will have an opportunity to identify the actual physical 

and mental requirements of Plaintiff’s former work as a bookkeeper and whether 

she is able to return to that job. A remand will also allow the Commissioner an 

opportunity to fill the void of evidence supporting the conclusion that a plaintiff 

with this RFC would be employable as a bookkeeper generally. Cf. Waldrop, 

supra, 379 Fed.Appx. at 952–53 (ALJ’s decision affirmed where VE provided both 

the DOT identification number for a former position and testimony that 

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demonstrated that the claimant could perform the identified job as it is performed in the 

general economy even with the limitations identified in the RFC).

B. Whether Plaintiff’s Former Work as a Bookkeeper Constitutes Past 

Relevant Work.

Past relevant work is work that the claimant (1) performed within the last 

fifteen years, (2) lasted long enough for the claimant to learn how to do the work, 

and (3) was performed at the level of substantial gainful activity. 20 C.F.R. §§ 

404.1565(a), 416.965(a). “Substantial work activity” is work that involves doing 

significant physical or mental activities and includes part-time work. 20 C.F.R. §§ 

404.1572(a), 416.972(a). “Gainful work activity” is work activity done for pay or 

profit. 20 C.F.R. §§ 404.1572(b), 416.972(b). To determine whether a claimant 

performed substantial gainful activity, the ALJ ordinarily will consider whether 

wages derived from the work activity exceed minimum thresholds. 20 C.F.R. §§ 

404.1574(b), 416.974(b). “If a claimant receives wages exceeding those set out in 

an earnings guidelines table, a presumption arises that she was engaged in 

substantial gainful activity during that period.” Green v. Commissioner, Social Sec. 

Admin., 555 Fed.Appx. 906, 908 (11th Cir. Feb. 10, 2014), citing 20 C.F.R. §§ 

404.1574(b)(2); 416.974(b)(2); and Johnson v. Sullivan, 929 F.2d 596, 598 (11th Cir. 

1991) (noting that earnings on income tax returns create a rebuttable 

presumption that the taxpayer was gainfully employed).

If the prior work was performed under special conditions, however, those 

conditions must be considered and may lead to a finding that the claimant’s 

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prior work was not substantial gainful activity. 20 C.F.R. §§ 404.1573(c), 

416.973(c).

11 

The Commissioner relies on certain guides to determine if 

the claimant is engaged in substantial gainful activity, including the 

nature of the claimant's work, how well she performed, how much 

time she spent at work, and whether her work was done under 

special conditions or in a sheltered workshop. Id. §§ 404.1573; 

416.973. Special work conditions may consist of receiving assistance 

from other employees, permission to take frequent rest breaks, and 

permission to work at a lower standard of productivity. 20 C.F.R. 

§§ 404.1573(c); 416.973(c). Importantly, however, work done under 

special conditions can still constitute substantial gainful activity. 

See 20 C.F.R. §§ 404.1573(c); 404.1574(a)(1), (a)(3), (b)(2); 416.973(c), 

416.974(a)(1), (a)(3), (b)(2).

Green, 555 Fed.Appx. at 908.

 11 These sections of the Commissioner’s regulations read, in their entirety, as 

follows:

The work you are doing may be done under special conditions that take 

into account your impairment, such as work done in a sheltered 

workshop or as a patient in a hospital. If your work is done under 

special conditions, we may find that it does not show that you have the 

ability to do substantial gainful activity. Also, if you are forced to stop 

or reduce your work because of the removal of special conditions that 

were related to your impairment and essential to your work, we may find 

that your work does not show that you are able to do substantial gainful 

activity. However, work done under special conditions may show that 

you have the necessary skills and ability to work at the substantial gainful 

activity level. Examples of the special conditions that may relate to your 

impairment include, but are not limited to, situations in which—

(1) You required and received special assistance from other 

employees in performing your work;

(2) You were allowed to work irregular hours or take frequent rest 

periods;

(3) You were provided with special equipment or were assigned 

work especially suited to your impairment;

(4) You were able to work only because of specially arranged 

circumstances, for example, other persons helped you prepare for or get 

to and from your work;

(5) You were permitted to work at a lower standard of 

productivity or efficiency than other employees; or 

(6) You were given the opportunity to work, despite your 

impairment, because of family relationship, past association with your 

employer, or your employer's concern for your welfare.

Id. (emphasis supplied).

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As previously stated, the ALJ found that plaintiff was not disabled 

because she could perform her past relevant work as a bookkeeper as it is 

generally performed (Tr. 23 (“The claimant is capable of performing past 

relevant work as a bookkeeper (DOT Code 210.382-014), which is a sedentary, 

skilled occupation.”)). Plaintiff argues, however, that the ALJ erred when he 

determined that her past work as a bookkeeper was relevant work because it was 

performed under special circumstances due to her severe limitations. In this 

regard, even though the ALJ did ask a vocational expert to “match up” Plaintiff’s 

prior work experiences with DOT titles, exertional levels and SVP numbers, there 

were no questions asked about whether she was working under special 

circumstances, i.e., receiving an unspecified subsidy from her employers during 

the period of time that she served as his bookkeeper. (See Tr. 64-65). In fact, there 

is no analysis by the ALJ regarding the possibility that there was a discrepancy 

between the actual work performed by the Plaintiff and the salary paid to her by 

her employers. Plaintiff’s testimony was that she was unable to work in the office 

of the carpet and air duct cleaning business because of her problems with 

interacting with the public, her inability to handle the stress involved, and 

because confrontations with customers led to migraine headaches. (Tr. 52-54). 

The Commissioner’s response to this argument is to take the position that 

since the ALJ found that the Plaintiff’s testimony was not fully credible, her 

testimony regarding the special work conditions established by her husband was 

also discredited, although the ALJ never says that he did not believe that portion 

of her testimony. Secondly, the Commissioner argues that Plaintiff’s position

that the ALJ should have ensured that the record accurately recorded the 

conditions under which she worked as a bookkeeper is misdirected because it 

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was her burden to show that the actual productive work as a bookkeeper was not 

substantial gainful employment because of the special conditions granted her 

because of her physical and mental impairments.

A review of the record reveals that Plaintiff reported working as a 

bookkeeper from 2006 through 2009 with three different companies. These 

companies were all engaged in the business of cleaning carpets and air ducts. 

The companies were KenJen Enterprises, Inc., (2006-2007), Best Care Services 

Incorporated (2008), and Priority Carpet & Air Duct Cleaning Specialists, Inc. 

(2009). (Tr. 178-180 & 470-473).

Plaintiff testified that her work duties for KenJen Enterprises began with 

answering phones and performing accounting for the corporation. (Tr. 35-36). 

These duties expanded to include managerial paperwork, supervising others

charged with answering the phones, and scheduling. (Id. at 36). These 

responsibilities, according to the Claimant’s testimony, became “overwhelming” 

because of her inability to “deal with people.” (Id.) She also testified that during 

this term of employment, her employer worked with her to accommodate her 

anxiety over dealing with other people by allowing her to stop answering phones 

and focus on supervising the other office staff and to take on additional 

responsibilities involving completion of paperwork. (Id. at 36-37).

Plaintiff and her husband, Luciano DiSalvatore, Jr., then purchased the 

business from KenJen and established a new company, Best Care Services. (See id. 

at 37). Plaintiff took over the accounting responsibilities for this new business. 

(Id.) Her problems with this work continued, however, requiring that she 

perform her duties from home but even that change failed because she became so 

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“foggy-brained” that she could not work and they were forced to start hiring 

people. She testified that she felt like a “zombie.” (Id. at 37-38).

Plaintiff and her husband then tried another business, Priority, but she 

was not able to work, either business-related tasks or her chores at home. (See id. 

at 38). After her husband’s sudden death, she was unable to continue the 

business and was losing her home. (See id. at 47). So, she moved in with a relative 

and now lives with a male friend who provides for her support. (See id.)

Although it is clear that the ALJ discredited that portion of Plaintiff’s 

testimony regarding the severity of her impairments and their limitations on her 

ability to be gainfully employed, there is no specific rejection of her testimony 

that she was allowed to work as a bookkeeper under special conditions. (See Tr. 

20-23). The Plaintiff’s evidence, both documentary and testimonial, supports her 

position that she has arguably rebutted the presumption that she was engaged in 

substantial gainful employment from 2006 to 2009 because that work was 

performed under special conditions, i.e. her work requirements were changed to 

alleviate stress, her employers allowed irregular work hours, assigned work 

thought to be suited to her problems with stress and anxiety, allowed her to 

work from home, expected less from her than other employees and eventually 

hired others to do her work. While the Court is confident that the evidence of 

the Plaintiff’s earnings in this case raises a rebuttable presumption that she was 

gainfully employed as a bookkeeper, without an analysis of the evidence she 

presented that she was working under special conditions and that her earnings 

should have been adjusted downward, the record does not provide substantial 

evidence to support the implicit findings of the ALJ that even if Plaintiff worked 

under the special conditions she described, her prior work as a bookkeeper was 

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performed at a level of substantial gainful employment, thus meeting the criteria 

for past relevant work.

On remand, the Commissioner will have an opportunity to consider this 

argument by the Plaintiff in greater detail. 

III. Conclusion

The Court ORDERS that the decision of the Commissioner of Social 

Security denying plaintiff benefits be reversed and remanded pursuant to 

sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 

L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The 

remand pursuant to sentence four of § 405(g) makes plaintiff a prevailing party 

for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. 

Schaefer, 509 U.S. 292, 112 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this 

Court’s jurisdiction over this matter.

DONE and ORDERED this the 19th day of September, 2016.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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