Melville v. Apfel, Docket No. 98-6176
| Decision Date | 01 August 1998 |
| Docket Number | Docket No. 98-6176 |
| Citation | 198 F.3d 45 |
| Parties | (2nd Cir. 1999) ELLEN MELVILLE, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner of Social Security, Defendant-Appellee |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from a judgment of the United States District Court for the Eastern District of New York, Frederic Block, Judge, dismissing disability benefits complaint on the ground that plaintiff's performance of work assignment that was required in order for her to maintain eligibility for public assistance showed that plaintiff was not disabled. See 5 F. Supp. 2d 139 (1998).
Vacated and remanded.
DANIEL D. KUHN, Staten Island, New York (Kuhn & O'Toole, Staten Island, New York, Kenneth Rosenfeld, James M. Baker, Northern Manhattan Improvement Corp., New York, New York, on the brief), for Plaintiff-Appellant.
STEPHEN J. RIEGEL, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Deborah B. Zwany, Varuni Nelson, Kathleen A. Mahoney, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Defendant-Appellee.
THE LEGAL AID SOCIETY, New York, New York (Helaine M. Barnett, Civil Division, Scott A. Rosenberg, Civil Appeals & Law Reform Unit, New York, New York, Marshall Green, Bronx Neighborhood Office, Bronx, New York, Warren B. Scharf, Brooklyn Neighborhood Office, Brooklyn, New York, of counsel), filed a brief as Amicus Curiae in support of Appellant.
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
Plaintiff Ellen Melville appeals from a final judgment of the United States District Court for the Eastern District of New York, Frederic Block, Judge, dismissing her complaint against defendant Commissioner of Social Security ("Commissioner") for supplemental security income ("SSI") under 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. 301 et seq. (1994), on account of her disability between June 1994 and December 1996. The Commissioner denied benefits on the ground that Melville was able to perform her past relevant work and hence was not disabled. Melville contended that the Commissioner had overlooked the fact that the activity to which he referred was not compensated work but was instead "workfare," i.e., work required in order for Melville to receive public assistance, or "welfare," benefits. The district court dismissed the complaint on the ground that workfare constitutes substantial gainful activity within the meaning of the regulations promulgated under the Act. For the reasons that follow, we vacate the judgment of the district court and remand to the Commissioner for further proceedings.
Melville was diagnosed with degenerative joint disease of the knees in 1993 at the age of 51. In June 1994 she applied for SSI on the ground that she was disabled. As this appeal does not involve any dispute as to Melville's physical condition or the medical evidence evaluating it, we summarize principally the record concerning her work history.
Melville's SSI application stated that she had arthritis of the knees and hands, with disintegration in the knees, and that she had suffered from that condition since 1978. In response to questions as to jobs held and duties performed after the onset of her condition, Melville stated that she had worked three days a week as a clerk for seven years, filling out forms and "stuffing letters." However, she stated that she had "worked only for welfa[re] check."
Melville's claim for benefits was denied initially and on reconsideration, and Melville requested a hearing before an administrative law judge ("ALJ"). Proceeding pro se at the ensuing hearing, Melville testified in pertinent part as follows when questioned by the ALJ as to her work history:
I can't work full-time, my doctor told me that. I was working for Welfare. I worked five years at 250 Church Street as a clerk. And then I worked two years for here in Fair Hearing at 80 Center Street.
Q. Fair Hearing at 80 Center Street. You mean the Department of Social Services?
A. Uh-huh.
Q. That's New York State, isn't it? Is it?
A. I don't know what it is.
Q. And what did you do as a clerk for the five years for Welfare?
A. Just, you know, took time people reported in and did some filing. That's it, nothing really important.
....
Q. You were a time keeper?
A. Yeah.
Q. So you kept track of time and you did filing?
A. Uh-huh.
Q. And what else, typing?
A. No.
Q. No. Photocopying?
A. Yeah, I did that, too.
Q. Answer the phone?
A. No.
Q. And is that five years at the same place?
A. Yes.
Q. And where was that?
A. 250 Church Street.
Q. Well, what sort of - was that for the city?
A. Yeah.
Q. City agency?
A. Yes, it was.
Q. Health - human resources or what, do you know?
A. It was forms like you fill out here.
Q. Did you complete forms, too, fill out them
A. Oh, no, no.
Q. - for people?
A. Never. No, we weren't allowed to do that.
Q. Did you work as a receptionist also there?
A. No Q. No. It was after the five years at 250 Church that you worked as a clerk at Fair Hearing?
A. Fair Hearing, yeah.
Q. What did you do?
A. You filled out forms for people that were on Welfare that were applying for hearings. You put their name and their case number and the date of their hearing on their form.
....
Q. And you did that work until when?
A. '91. '91.
Q. And do you remember what month?
A. I think it was March or April of '91, I think.
Q. And what happened to that job?
A. Well, I don't know. There was a mix up about, you know, the car fare they used to give you.
....
Q. What was the mix up about the car fare?
A. I don't know, something about the - they claimed that I didn't fill out my time card right. Or I was - or it was mix up somehow. I don't know. But then when I went down to -
Q. But did they let you go? Was that it?
A. Yeah, and then they told me to go home. And then when I went back to - they gave me my car fare, the Fair Hearing I applied for, and then told me that when I back [sic] to East 60th Street, they told me that I have to wait to be sent to a job. And then they said that when I went to this program for the schooling for the nine, eight hours, they told me I was dismissed because I can't work full-time.
Q. And did you work full-time -
A. No.
Q. - when you were working as a clerk?
A. No. Never worked full-time.
Q. Never in your life?
A. No. I worked maybe two, three days a week. That was it.
Q. But the two or three days you worked, did you work an eight-hour day?
A. Yes. They gave you certain hours that you had to work within those two weeks.
Q. Have you looked for other work?
A. No.
(Hearing Transcript, September 21, 1995 ("Tr."), at 8-12.)
In a decision dated January 24, 1996 ("ALJ Decision"), the ALJ found that Melville was not disabled within the meaning of the Act. He stated, in pertinent part, as follows:
The Administrative Law Judge finds no factors which would preclude the claimant from carrying out the demands of her past relevant work as a clerk. The claimant was employed in this capacity from 1984 through 1991. In the performance of that occupation, the claimant was required to perform no lifting activities and engaged in essentially sedentary work.... The claimant suffers from heel spurs, affecting the right foot, which have limited her capacity to engage in prolonged walking and standing activities. However, the claimant's past relevant work was sedentary in nature, requiring her to engage in no prolonged periods of walking and standing or heavy lifting....
....
Because the claimant has retained the residual functional capacity to perform her past relevant work, a finding of not disabled is required.
ALJ Decision at 2-4. The ALJ made no mention of the fact that Melville's work for the Department of Social Services ("DSS") during the 1984-1991 period was workfare. Melville administratively challenged the ALJ's decision, but the Appeals Council adopted the ALJ's decision as the final decision of the Commissioner.
Melville commenced the present action seeking reversal of the Commissioner's decision on the ground that it was not supported by substantial evidence and was contrary to law. She argued that her workfare activity at DSS was not relevant work because she worked only to maintain eligibility for public assistance, and hence that activity did not constitute substantial gainful activity within the meaning of the Act and the regulations promulgated by the Social Security Administration ("SSA"). The Commissioner, arguing that the ALJ had performed the five-step analysis required by SSA regulations, moved for judgment on the pleadings. Melville cross-moved for judgment, purportedly also on the basis of the pleadings; however, she supported her motion with an affidavit. It stated principally as follows:
6. The Commissioner[] ... denied my 1994 application on the basis that I could perform my past job as a clerk for the welfare department.
7. The job I had working for the welfare department was during the time period of approximately April 1984 through April 1991.
8. I was told by my caseworker at welfare that I was required to work for the welfare department in order for me to continue receiving my welfare check. All the work I did was for the welfare department.
9. I was not paid for any of the work I did.
10. The only money I received for working was two dollars for lunch and money for taking public transportation to Manhattan where the job was.
11. Because I cooperated with the work program I was able to continue receiving my monthly welfare grant and medicaid.
12. The last job I had where I received an actual pay check was in approximately 1961 when I worked for the telephone company.
(Affidavit of Ellen Melville dated November 10, 1997, 6-12.)
In a Memorandum and Order dated June 4, 1998, reported at 5 F. Supp. 2d 139, the...
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