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MUSEBECK v. HECKLER

August 2, 1985

BARBARA MUSEBECK by Hazel Musebeck, Guardian-ad-litem
v.
MARGARET M. HECKLER, Secretary Dept. of Health and Human Services, United States of America



The opinion of the court was delivered by: GREEN

 GREEN, J.

 This is an appeal under sections 205 (g) and 1631 (c) (3) of the Social Security Act ("Act"), 42 U.S.C. §§ 405 (g) and 1383 (c) (3) (1982), from a final decision of the Secretary of Health and Human Services ("Secretary") finding that plaintiff, Barbara Musebeck, engaged in substantial gainful activity during a nine month period (January-June, August-October) in 1980 ("critical period"), and therefore was no longer disabled as of November, 1980. For reasons demonstrated below, I find that plaintiff's clearly subsidized earnings, standing alone, do not constitute substantial evidence of substantial gainful activity. Moreover, because there is an abundance of evidence that plaintiff was not in fact performing substantial gainful activity, I reverse.

 I. Plaintiff's Medical History

 Musebeck who is thirty years of age has been receiving psychiatric treatment since early childhood. The record clearly reflects that throughout her life she has undergone numerous psychiatric hospitalizations. She has been variously diagnosed as suffering from organic brain syndrome, explosive personality, temporal lobe epilepsy, borderline personality disorder and manic depressive illness. Plaintiff applied for and became a recipient of Supplemental Security Income ("SSI") benefits beginning in June, 1977.

 In May of 1977, she came under the care and treatment of Doctor William Boehmler. Dr. Boehmler treated Musebeck from May, 1977 through November, 1981. He reported that during this treatment period plaintiff never "achieve[d] a level of functioning that was to be construed of as independent." (Tr. 346). Subsequent to November, 1981 Musebeck underwent five psychiatric hospitalizations in a period ending April 30, 1982. The behaviors which led to these hospitalizations included impulsive anger, destruction of furniture, assaultive behaviors, suicidal gestures, compulsive thoughts, staggering gait and hand tremors. The examiners noted her inability to do two-step commands, as well as abnormal tracings on electroencephalograms.

 In July, 1982, Musebeck was committed to Norristown State Hospital. She was discharged in November of 1984 into a community living arrangement under the auspices of the Bristol-Bensalem Mental Health Center.

 II. Plaintiff's Employment History

 Musebeck was first employed after graduating from special education classes in high school. She worked as a dietary helper at a nursing home for approximately one and one-half years (1974-75).

 Plaintiff next worked in a sheltered workshop/group therapy program as a commuting outpatient from Norristown State Hospital where she was undergoing her fifth psychiatric hospitalization. She began work with this program in March of 1976. In November of 1976, she was discharged and continued her work as a live in resident at the program's facilities until February, 1977 when she was terminated due to behavioral problems and was once again psychiatrically hospitalized. She earned two dollars a week during her tenure of employment.

 Following other therapeutic residential placements, Musebeck returned to the workshop program in January, 1978 and continued until she was once again terminated due to violent behavior in March of 1979.

 From May until December of 1979, plaintiff was employed by Associated Production Services ("APS"). She worked in this sheltered workshop program in a closely supervised setting. According to Jonathan Belding, the program's executive director, Musebeck produced "at approximately 50% of the rate required in a competitive industrial setting." (Tr. 300) When referring to plaintiff's tenure with APS, Belding felt constrained to "qualify the word employment", preferring rather to characterize her participation as "training." (Tr. 302) Musebeck earned $1017.30 for the May-December 1979 period, an average of $127.16 per month. (Tr. 180)

 A. Critical Employment Period

 Plaintiff left the APS workshop in December, 1979 and began participating in a Comprehensive Employment Training Act ("CETA"), 29 U.S.C. § 801-999 (1973), repealed by, Pub. L. No. 97-300, title I, § 184 (a) (1), 96 Stat. 1357 (1982), program. Under the CETA program, she worked as a stock clerk at the Navy Exchange, Willow Grove Naval Air Station. She was employed as a stock clerk during a 6-month training program which ended in June, 1980. During that six month period (Jan.-June 1980) she underwent various treatments and had ...


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