Thompson v. Sullivan
| Decision Date | 11 July 1989 |
| Docket Number | No. 88-2523.,88-2523. |
| Parties | Easter Mae THOMPSON, Appellant, v. Louis SULLIVAN, M.D., Secretary of Health and Human Services, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David M. Hendrix, Little Rock, Ark., for appellant.
Joyce Shatteen, Dallas, Tex., for appellee.
Before ARNOLD, BOWMAN, and MAGILL, Circuit Judges.
Easter Mae Thompson appeals from the District Court's order entered in favor of the Secretary of Health and Human Services denying her social-security disability benefits on the ground that she was engaged in substantial gainful activity. We reverse and remand for further administrative proceedings.
On April 26, 1986, Ms. Thompson filed an application for benefits, alleging disability beginning on September 1, 1985, due to heart trouble, diabetes, and the effects of polio she suffered when she was ten years old. On her Work Activity Report she listed employment as a maid 20 hours a week at $3.35 per hour. Although she did not indicate on the report any special conditions of employment, the Social Security Administration (SSA) representative noted in the file: "work is not comparable to other maids in the neighborhood." The application was denied initially and upon reconsideration, and Ms. Thompson requested a hearing before an Administrative Law Judge (ALJ).
The claimant, who waived representation by a lawyer, testified that she was forty-seven years old, had an eighth-grade education, and was working cleaning a bank and a private home. She had worked at the bank for approximately twenty years and currently worked twenty-four hours each week (four hours on four evenings and eight hours on Sundays), for which she was paid the minimum wage ($3.35 per hour). Ms. Thompson testified that her physical impairments required that her son and granddaughter helped her in cleaning the bank "off and on," that sometimes she had to lie on the floor and let them do the work, and that it used to take her two and one-half or three, rather than four hours, to clean the bank each evening. Ms. Thompson testified that she used to have several weekly daytime housecleaning jobs, but was now able to clean only one private home a week because the owner did not care if she arrived on time, and that sometimes she had to leave to go back to bed because her chest hurt. She received $30.00 a week from this job. She also testified extensively about her pain, vision problems, and limited daily activities.
After considering the nature of her work activity and determining that she earned more than $300.00 per month, the ALJ found that Ms. Thompson's cleaning jobs constituted substantial gainful activity, and concluded that she was not disabled. The Appeals Council denied review. Ms. Thompson retained counsel and filed this case. Thereafter, her lawyer asked the Appeals Council to reconsider the case in light of a vocational evaluation which found that she was profoundly mentally retarded. The Appeals Council reviewed the new evidence but refused to alter the ALJ's determination. The District Court granted summary judgment to the Secretary, and this appeal followed.
On appeal, Ms. Thompson argues that the Secretary's determination that she is engaging in substantial gainful activity is not supported by substantial evidence, and that the ALJ failed to develop the record fully. The claimant contends that the testimony showed that her children and grandchildren were actually doing the work for which she was being paid at the bank, and that her weekly housecleaning job was tailor-made to fit her handicap.
The regulations preclude a finding of disability, regardless of impairment, if a claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). Any work done during a period of claimed disability may show that a claimant can engage in substantial gainful activity. 20 C.F.R. §§ 404.1571, 404.1520; Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir.1988). Factors to be considered include amount of pay, length of time worked, and whether the work was conducted in a special work area or with special assistance. 20 C.F.R. § 404.1574. The regulations create a presumption that an employee who...
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