from the job coach assistance he received.
Several courts have determined that applicants for disability benefits were not performing SGA despite their earnings. In Boyes v. Secretary of Health and Human Services, 46 F.3d 510 (6th Cir. 1994), the court held that the claimant was not engaged in substantial gainful employment where the circumstances under which the claimant worked were tantamount to sheltered employment based on the amount of work regularly completed by him, the quality of his work, and the increased level of supervision he required to do his job. In Chicager v. Califano, 574 F.2d 161 (3rd Cir. 1978), it was determined that a claimant was not engaged in SGA as a dispatcher where the claimant was frequently absent because of his impairment and encountered numerous difficulties in performing even simple tasks, including use of the telephone, and that substantial assistance was required from co-workers. In Case v. Sullivan, 810 F. Supp. 52 (W.D.N.Y.1992), the court found that the presumption of SGA created by the plaintiff's $ 48,000 annual salary was rebutted by evidence of the plaintiff's poor performance of his job duties and that his employer indicated that the plaintiff was overpaid, and in Goldstein v. Harris, 517 F. Supp. 1314 (S.D.N.Y. 1981), the court remanded a case to the SSA case for reconsideration and directed that the ALJ, in determining whether a claimant had engaged in SGA, to consider the nature and quality of the claimant's work, whether such work was performed under special employment conditions, and the amount of time claimant worked.
Based on this caselaw, the applicable regulations, and the relevant information contained in the record, the court finds that the ALJ erred and this matter should be remanded to the ALJ for a determination as to whether the special conditions under which Nazzaro worked, specifically the provision of the WNYALD job coach, indicate that Nazzaro was not engaged in SGA, despite his reported earnings. Additionally, although Nazzaro's employer indicated on the SSA's employer's Work Activity Questionnaire that Nazzaro's work was worth what TOPS paid him, that questionnaire was designed to elicit information necessary to calculate the amount of a subsidy provided by an employer. The questionnaire does not address the issue of whether an employee who receives assistance form a third party would be able to satisfactorily perform that job without the extra assistance. As discussed, the court is in agreement with the ALJ that Nazzaro's earnings were not subsidized. That finding alone, however, does not conclude the ALJ's determination under 20 C.F.R. §§ 404.1571-1574 and 416.971-974 and applicable caselaw where, as here, there is at least some evidence of special conditions under which the claimant works which may establish that the claimant is not engaged in SGA, despite his actual earnings.
Here, Nazzaro has always received assistance from the WNYALD job coach since he first began working in 1986 and there are several indications in the record provided by the WNYALD that without such assistance, Nazzaro would be unemployable. (R. 112, 138, 139). The ALJ did not, however, address whether despite Nazzaro's earnings, the fact that he was provided extra assistance by the WNYALD job coach indicated that he was not engaged in substantial gainful activity, although there is evidence provided by the WNYALD Vocational Services personnel that Nazzaro required such assistance to maintain any employment. (R. 94, 138-140). Thus, in accordance with Richardson, the ALJ failed to examine the facts presented, and determine, as required, whether the assistance and supervision provided by Nazzaro's job coach establishes that Nazzaro was not engaged in SGA.
Furthermore, a finding that Nazzaro was not engaged in SGA at TOPS based on the special conditions of his employment does not require the ALJ to conclude that Nazzaro is unable to engage in SGA. There may, notwithstanding his present employment, be some other employment of which Nazzaro is capable without such assistance. 20 C.F.R. §§ 404.1573(c) and 416.973(c). Such a determination cannot be made based on the present record and the court therefore recommends that this case be remanded to the ALJ for reconsideration, based on a more fully developed record.
2. Severe Physical or Mental Impairment
The next step of the analysis is to determine whether Nazzaro had a severe physical or mental impairment significantly limiting his ability to do "basic work activities."
"Basic work activities" are defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:
. . . walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing, speaking, understanding, carrying out, remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b)(1)-(6).
Further, a physical or mental impairment is severe if it "significantly limit(s)" the applicant's physical and mental ability to do such basic work activities. 20 C.F.R. § 404.1521(a).
Here the ALJ determined that Nazzaro had been engaged in substantial gainful activity, and thus according to Bapp, supra, the ALJ's inquiry should have concluded at that point. Nevertheless, the ALJ continued and found that Nazzaro did not have a severe physical or mental impairment that prevented him from participating in substantial gainful employment, although the ALJ did not elaborate on the basis of that finding. (R. 18-19); Defendant's Memorandum of Law, at p. 9.
Nazzaro's attorney did remark at the hearing that the only issue properly before the ALJ was whether Nazzaro was engaged in SGA as, according to 20 C.F.R. §§ 404.946(a) and 416.1446(a), the scope of the ALJ's decision should have been limited to the initial application and reconsideration, absent notice to the parties that other issues were to be considered at the administrative hearing. In this case, the record clearly states that Nazzaro's initial application for disability benefits was denied, based on the Work Activity Report which indicated Nazzaro's total monthly earnings were in excess of the SGA limit, and based on his current employer's statement that Nazzaro's work was fully worth the amount he was paid. (R. 50-51). Nazzaro's application for reconsideration was denied on the same basis, although at that time, the SSA made a determination that Nazzaro's gross wages were subsidized in part. (R. 54).
As it is clear that both the initial and reconsideration of Nazzaro's application for disability benefits was restricted solely to the issue of whether Nazzaro was engaged in SGA, it was error for the ALJ to consider Nazzaro's residual functional capacity absent notice to the parties of his intention to do so. 20 C.F.R. §§ 404.946(a) and 416.1446(a). If the ALJ determines on remand that Nazzaro is not capable of SGA, then the ALJ must complete the required sequential analysis, based on a fully developed record which includes Nazzaro's medical, psychological and vocational records.
See Discussion, supra, at pp. 12-14.
Upon remand the ALJ will therefore determine whether under 20 C.F.R. §§ 404.1573 and 416.973 Nazzaro "earned" the actual wages attributed to him by TOPS for the work he performed when considered with the extent of the assistance provided by the job coach. Based upon the present record, as discussed, it is reasonably clear that from TOP's viewpoint Nazzaro's wages were fully earned regardless of the needed assistance provided by the WNYALD job coach. That fact does not necessarily preclude, however, a finding by the SSA that the extent of the job coach assistance required by Nazzaro to perform such work renders his work and earnings to have occurred under a special condition sufficient to determine that such work does not constitute substantial gainful activity. By recommending remand on this issue, the court does not intimate any view on whether, following further development of the record and reconsideration by the ALJ of this question, Nazzaro should not be determined to be engaged in substantial gainful activity.
Based on the foregoing, Defendant's motion for judgment on the pleadings Defendant's (Doc. # 6) should be DENIED; Plaintiff's cross motion for judgment on the pleadings (Doc. # 9) should be DENIED in part and GRANTED in part and REMANDED for reconsideration.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: March 27th, 1997
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: March 27th, 1997
Buffalo, New York