On Appeal from the United States District Court for the Eastern District of Pennsylvania, E.D. Pa. No. 89-2855.
Becker, Greenberg and Nygaard, Circuit Judges.
GREENBERG, Circuit Judge.
This is an appeal in a social security case. The appellant, Joya Wright, claims entitlement to disability income benefits under Title II of the Social Security Act because of disability attributable to mental problems. The Secretary of Health and Human Services found that she was disabled, but only as of August 1, 1987, when she stopped her work as an on call rape crisis counselor with Women Organized Against Rape. The primary issue on this appeal is whether this employment constituted "substantial gainful activity" within 42 U.S.C. § 423(d) and 20 C.F.R. § 404.1572 (1989). We conclude that her satisfactory performance of substantial, remunerative,*fn1 non-sheltered work on an on call basis, without special accommodations, constituted substantial gainful activity within the meaning of the Social Security Act. Thus, as an individual to be disabled under Title II of the Social Security Act must be prevented from performing any substantial gainful activity by reason of a medically determinable impairment, see 42 U.S.C. § 423(d)(1)(A), her actual employment barred her from benefits for the period in dispute prior to August 1, 1987, regardless of her mental condition. Id.; 20 C.F.R. § 404.1520(b) (1989).*fn2
A second issue on the appeal is whether the Secretary properly declined to treat Wright's application for benefits under Title II as an oral inquiry regarding supplemental security income under Title XVI of the Act. We uphold his action in this regard, as under the regulations the Secretary is required to treat an application under Title II as such an oral inquiry only if "it looks as if" the claimant might be disabled on the basis of her Title II application, a condition not met in this case inasmuch as Wright was working when she filed her application. 20 C.F.R. § 416.350 (1989).
Wright, who was born on September 24, 1945, has completed high school and three years of college. Her last non-sheltered job was as an emergency room rape counselor for Women Organized Against Rape, a position she obtained in January 1985. Prior to that she worked as a hospital aide and as a secretary.
According to Wright's supervisor, her position with Women Organized Against Rape was "a part-time position on an on call basis, not a full-time job with regular hours." Wright was on call between the hours of 9 a.m. and 4 p.m., five days a week, during which time she carried a "beeper" so that she could be called to respond to emergencies. She was paid $1.50 per hour while on call, plus $20.00 for each rape victim she counseled. Wright was called upon to counsel victims between three and ten times per week, and in each instance in which she counseled a victim she filled out a form for her office. The usual counseling session lasted about one-half an hour but sometimes she talked to a victim for over an hour. On occasions Wright would double staff, meaning she took a co-worker's cases as well as her own. In addition to counseling and filling out reports, Wright attended monthly staff meetings.
While on call, Wright was not required to stay at her office and was free to do anything she wanted, even "window shopping." However, the evidence in the record does not indicate she ever missed or refused a call, or that she performed her counseling responsibilities in an unsatisfactory manner. Her earnings averaged $382.29 per month in 1985 (ranging from $247.33 to $662.50), $377.96 per month in 1986 (ranging from $104.00 to $534.25), and $511.00 per month for the first five months of 1987 (ranging from $349.00 to $712 in May, the last month for which there is information in the record), thus presumptively indicating she was engaged in a substantial gainful activity. See 20 C.F.R. § 404.1574(b)(2)(vi) (1989).
On July 31, 1987, Wright resigned her job as a rape counselor, as she found it too stressful. She started working on August 17, 1987, in a sheltered workshop at the Orleans Vocational Center. She is being treated at the Poplar Street Guidance Clinic for what her psychiatrist, Dr. Stephanie A. Ward, describes as "a long history of severe anxiety and depression and very poor coping skills." According to Dr. Ward, "the strength of her angry and hostile feelings are such that a major tranquilizer is indicated," and it has in fact been prescribed. Wright has had "vague suicidal thoughts in the past, but no plan to act." Dr. Ward has also indicated that Wright has grown to hate people and this affects "her ability to work and to cope with people in a social situation." Nevertheless while employed by Women Organized Against Rape, according to Dr. Ward, "she appeared to function adequately."
Wright filed an application for disability benefits on February 17, 1987, while she was still working as a rape counselor, claiming that she had been disabled due to a mental condition since October 1985.*fn3 This application was denied on April 7, 1987, because her employment with Women Organized Against Rape was regarded as substantial gainful activity. She requested reconsideration on April 22, 1987, and this was denied on August 8, 1987.
On August 11, 1987, Wright requested a hearing before an administrative law judge and it was held on June 21, 1988, with Wright being represented by an attorney. On September 15, 1988, the administrative law judge issued a ruling that Wright was disabled effective August 1, 1987, the day after she stopped working at Women Organized Against Rape. On November 11, 1988, Wright requested a review of the judge's decision, as she believed she should have been awarded an earlier disability date, but the Appeals Council denied the request on March 31, 1989, and its decision was the final decision of the Secretary. See 20 C.F.R. 416.1400(a)(5) (1989). On April 19, 1989, Wright brought this action seeking review of the decision. The Secretary subsequently moved for summary judgment which was granted on July 28, 1989. Wright then timely appealed on August 10, 1989. The district court had jurisdiction under 42 U.S.C. § 405(g) and we have jurisdiction under 28 U.S.C. § 1291.
There is some question as to our standard of review. The Secretary contends that the first issue presented, whether Wright's on call work constituted "substantial gainful activity," presents a factual question so that we should affirm if his findings are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). This is certainly the usual approach and is probably applicable here. It does appear, however, that there is no real dispute as to what Wright did on a day by day basis for Women Organized Against Rape so that the substantial gainful activity issue arguably is a legal matter, indicating a plenary scope of review. See Podedworny v. Harris, 745 F.2d 210, 221 n. 8 (3d Cir. 1984). See also Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) ("'[where] an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.'"). We need not, however, definitely choose between these two standards because even if we exercised plenary review we would affirm. Predicated, however, on the Secretary's concession that we should do so, we will exercise plenary review on the issue of whether the Secretary properly declined to treat the Title II application as an oral inquiry about supplemental security income.
THE SUBSTANTIAL GAINFUL ACTIVITY ISSUE
Valid regulations state that part-time work can constitute substantial, gainful activity.
Wright first contends that the Social Security Act as a matter of law precludes the agency from concluding that a person whose work is part-time has engaged in substantial gainful activity. Thus, as she regards her work at Women Organized Against Rape as having been part-time, in her view she cannot be barred from the receipt of Title II payments simply because of her work. The Secretary responds that Wright's work cannot be reasonably characterized to have been part-time, that even she thought she was employed full-time, but that in any event, her work, however characterized, was substantial gainful activity.
The germane regulation on this issue is 20 C.F.R. § 404.1572(a) (1989), which provides that "work may be substantial even if done on a part-time basis . . . ." This regulation was promulgated pursuant to 42 U.S.C. § 423(d)(4), which states that "[the] Secretary shall by regulations prescribe the criteria for determining when services performed or earnings derived from services demonstrate an individual's ability to engage in substantial, gainful activity." The Supreme Court has noted that "[w]here, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, our review is limited to determining whether the regulations promulgated exceeded the Secretary's statutory authority and whether they are arbitrary and capricious." Heckler v. Campbell, 461 U.S. 458, 466, 103 S. Ct. 1952, 1957, 76 L. Ed. 2d 66 (1983). See also Sullivan v. Everhart, 494 U.S. 83 ,110 S. Ct. 960, 964, 108 L. Ed. 2d 72 (1990); Sullivan v. Zebley, 493 U.S. 521, 110 S. Ct. 885, 890, 107 L. Ed. 2d 967 (1990).
Wright cites McDowell v. Richardson, 439 F.2d 995 (6th Cir. 1971), for the proposition that a claimant's inability to work at least seven or eight hours a day indicates disability. But there the "seven or eight hours a day" referred to the requirements of the jobs for which the claimant was being considered, which were ...