Case: 13-13565   Date Filed: 02/10/2014   Page: 1 of 6


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13565
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:12-cv-00124-GRJ



ELMA D. GREEN,

                                                            Plaintiff-Appellant,

                                  versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (February 10, 2014)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Elma D. Green appeals the district court’s order affirming the

Commissioner’s final decision denying her claims for disability insurance benefits

and supplemental security income (SSI) prior to January 1, 2009. 1 Because the

Commissioner’s decision is supported by substantial evidence, we affirm.

       Green filed an application for disability benefits and SSI in June 2009,

alleging a disability onset date of May 1, 2007, due to multiple medical issues

including colon cancer, diabetes, fatigue, congestive heart failure, high blood

pressure, and renal failure.2 When she filed her application, Green was employed

as a deputy clerk for the Union County, Florida, Clerk’s Office. During 2007 and

2008, while she was being treated for her medical conditions, Green missed a

significant number of days of work, required the assistance of her co-workers to

complete her duties, and had “poor” productivity.

       The Administrative Law Judge (ALJ) found that, although Green suffered

from a series of severe impairments that prevented her from performing regular

work, she was not entitled to benefits prior to 2009 because she earned sufficient

income in 2007 and 2008 to exceed the substantial gainful activity threshold. On

appeal, Green contends that the ALJ’s conclusion was not supported by substantial




1
 The Commissioner awarded Green benefits beginning on January 1, 2009.
2
  Green initially alleged an onset date of December 11, 2002, but later amended it to May 1,
2007.
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evidence because her 2007 and 2008 employment was “sheltered” or otherwise

performed under special conditions, and thus she was entitled to benefits.

      We review the Commissioner’s final decision to determine if it is supported

by substantial evidence and based on proper legal standards. Crawford v. Comm’r,

, 1158 (11th Cir. 2004). Substantial evidence consists of “such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” 

Because we “may not decide the facts

anew, reweigh the evidence, or substitute our judgment for that of the

[Commissioner],” a decision supported by substantial evidence must be affirmed

“even if the proof preponderates against it.” Phillips v. Barnhart, 

,

1240 n.8 (11th Cir. 2004) (quotations omitted). The burden ultimately rests with

the claimant to prove that she is disabled and entitled to benefits. See 20 C.F.R.

§ 404.1512(a).

      Eligibility for disability benefits and SSI requires that the claimant be

disabled. 42 U.S.C. §§ 423(a)(1)(E); 1382(a)(1)-(2). A claimant is disabled if she

is unable “to engage in any substantial gainful activity by reason of a medically

determinable . . . impairment . . . which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A);

1382c(a)(3)(A). In order to determine whether a claimant is disabled, the

Commissioner applies a five-step sequential evaluation. 20 C.F.R.


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§§ 404.1520(a)(4); 416.920(a)(4). At the first step of the evaluation, the claimant

must show that she is not engaged in substantial gainful activity, or she will not be

found disabled. 

(b); 416.920(a)(4)(i), (b).

      “Substantial work activity” is work that involves doing significant physical

or mental activities, even if on a part-time basis or with less responsibility than

before. 

416.972(a). “Gainful work activity,” in turn, is work

activity done for pay or profit. 

416.972(b). The

Commissioner relies on certain guides to determine if the claimant is engaged in

substantial gainful activity, including the nature of the claimant’s work, how well

she performed, how much time she spent at work, and whether her work was done

under special conditions or in a sheltered workshop. 

416.973.

Special work conditions may consist of receiving assistance from other employees,

permission to take frequent rest breaks, and permission to work at a lower standard

of productivity. 20 C.F.R. §§ 404.1573(c); 416.973(c). Importantly, however,

work done under special conditions can still constitute substantial gainful activity.

See 20 C.F.R. §§ 404.1573(c); 404.1574(a)(1), (a)(3), (b)(2); 416.973(c),

416.974(a)(1), (a)(3), (b)(2).

      In evaluating work activity for substantial gainful activity purposes, the

primary consideration is the claimant’s earnings from work activity. See 

416.974(a)(1); SSR 83-33. If a claimant receives wages


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exceeding those set out in an earnings guidelines table, a presumption arises that

she was engaged in substantial gainful activity during that period. See 20 C.F.R.

§§ 404.1574(b)(2); 416.974(b)(2); see also Johnson v. Sullivan, 

, 598

(11th Cir. 1991) (noting that earnings on income tax returns create a rebuttable

presumption that the taxpayer was gainfully employed). For 2007 and 2008, those

threshold amounts were $10,800 and $11,280, respectively. See 20 C.F.R.

§§ 404.1574(b)(2); 416.974(b)(2). Ultimately, in making a final determination

with respect to substantial gainful activity, the Commissioner will only consider

amounts actually earned, meaning that income not directly related to productivity

will be subtracted from the claimant’s gross earnings to determine the reasonable

value of the actual services performed. 20 C.F.R. §§ 404.1574(a)(2);

416.974(a)(2); SSR 83-33.

      Here, substantial evidence supports the ALJ’s determination that Green

engaged in substantial gainful activity prior to January 1, 2009, and was, therefore,

not disabled before that time. The record established that, in her capacity as a

deputy clerk, Green was paid $25,041.60 in 2007 and $26,530.09 in 2008. Those

gross income amounts are more than double the amounts set out in the earnings

guidelines, thus giving rise to a presumption that she had engaged in substantial

gainful activity during those years. See 20 C.F.R. §§ 404.1574(b)(2);

416.974(b)(2); 

. Although Green was entitled to a


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reduction to account for special allowances made by her employer, such as extra

help, fewer or easier duties, frequent rest periods, and lower production standards,

the ALJ properly considered these reductions. Specifically, relying on the Union

County Clerk’s statement regarding the reasonable value of Green’s services, the

ALJ reduced Green’s gross income figures by one third. Even after this

adjustment, Green’s income exceeded the allowable amounts.

      Green argues that her work qualified as “sheltered work,” but we disagree.

A “sheltered workshop” describes a facility that operates at a loss or receives

charitable contributions or government aid. See 20 C.F.R. §§ 404.1574(a)(3);

416.974(a)(3). Additionally, sheltered employment “is employment provided for

handicapped individuals in a protected environment under an institutional

program,” and may include work made available at certain sheltered operations

workshops, long-term care institutions, or even homebound employment. SSR 83-

33. Green’s employment in the county clerk’s office does not constitute

“sheltered” work.

      For the foregoing reasons, we affirm the Commissioner’s final decision.

      AFFIRMED.




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