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2d Circuit Remands for Consideration of SGA

October 31, 2017

When is past work relevant at Step four of SSA’s Sequential Evaluation for determining disability? When it was performed within the past fifteen years, lasted long enough for the claimant to learn how to perform it, and was substantial gainful activity. 20 C.F.R. § 404.1560(b)(1). See also POMS DI 25005.000, providing guidance on the evaluation of past work.  Work performed for less than substantial gainful activity (SGA) during the time in question cannot be considered relevant at Step four. SGA levels are adjusted yearly. See POMS DI 10501.015.

What if an Administrative Law Judge (ALJ) determines a claimant can return to his past relevant work without properly determining whether the work was SGA based on earnings? According to a recent decision from the Court of Appeals for the Second Circuit, the claim must be remanded for the ALJ to make explicit findings as to whether past work constituted SGA.

In Klemens v. Berryhill, 2017 WL 4387186, --- Fed. App’x --- (2d Cir. Oct. 3, 2017), the court faulted the ALJ for his perfunctory finding that the claimant performed past work as a cleaner with sufficient earnings “to raise the presumption of substantial gainful activity.” The court noted the record was “rife” with inconsistent information regarding the claimant’s earnings. The ALJ failed to question the claimant about these earnings at the hearing, and failed to provide citations to the record to support his finding of SGA.  “In short, based on our review of the certified administrative record, the ALJ simply failed to acknowledge relevant evidence or explain his implicit rejection of the conflicting evidence.”  2017 WL 4387186, at *2.

In remanding the claim, the court emphasized the importance of carefully appraising the claimant’s past work. “Indeed, ‘[t]he decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision.’” 2017 WL at 4387186, at *3, n. 1 (quoting Abbott v. Colvin, 596 F. App’x 21, 23 (2d Cir. 2015); SSR 82–62, 1982 WL 31386, at *3) (emphasis in Abbott).  

Congratulations to private attorney Timothy Hiller of Buffalo on this victory.

 





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