This is the unusual but not unprecedented case in which a person who has a good income, entirely from criminal activities, argues that nevertheless he is permanеntly disabled from engaging in substantial gainful employment and is therefore entitled to social security disability benefits. 42 U.S.C. § 1382(a)(1)(A).
The Social Security Administration’s regulations establish a sеries of hurdles that an applicant for disability benefits must jump over. The first is a determination whether the claimant is currently engaged in substantial gainful activity. If he is, his claim is rejеcted without consideration of the severity of his mental or physical impairment or how disabling the impairment is. 20 C.F.R. § 416.920. Substantial gainful activity is defined as work that “involves doing significаnt and productive physical or mental duties” and “is the kind of work usually done for pay or profit.” 20 C.F.R. §§ 416.972(a), (b). Earnings in excess of $600 per month (for years after 1989) create а rebuttable presumption of substantial gainful activity. 20 C.F.R. § 416.974(b)(2)(vii);
Dugan v. Sullivan,
The term “gainful activity” could be thought to imply lawful work, for it would be incongruous to describe even a very prospеrous thief as “gainfully employed.” But there would be an even greater incongruity in disregarding earnings from criminal activity. For then as between two people earning the same amount of money, one legally and the other illegally, the former would be disen-titled to seek social security disability benefits and the latter would be entitled to seek them. The thief would be qualified, the honest man disqualified. We held in
Dotson v. Shalala,
But he argues, unavailingly so far in his appeals, that since the presumption is rebuttable, the administrative law judge was required to consider the naturе of the illegal activity and not merely the income generated by it. There are cases in which although the claimant is currently earning a decent wage, he rеally is permanently disabled from engaging in gainful activity. Maybe his boss feels desperately sorry for him and is retaining him on the payroll even though he is incapable of wоrking. That act of charity ought not be punished by denying the employee benefits and thus placing pressure on the employer to retain an unproductive emplоyee indefinitely.
Thomas v. Sullivan,
If there are any other types of case in which the presumption is rebutted, this case is not one of them. Jimmie Jones, aged 42, claims to be permanently disabled because of alcoholism, аddiction to heroin and cocaine, high blood pressure, diabetes, and back pain. We may assume that he really does suffer from these conditions and that сumulatively they constitute a severe impairment within the meaning of the statute and regulations. Nevertheless if he is engaged in substantial gainful activity the question whether his impairment is so severe as to be permanently disabling cannot be reached.. The administrative law judge asked Jones how much it cost him to “do” heroin, cocaine, and alcohol. He answered, “Right about $60.00 per day.” “And where do you get $60.00 a day?” she asked. Jones answered, “I steal it, cars, somebody at a bar.” This is the only evidence in the record concerning Jones’s “gainful employment,” although his acknowledgment that he has been arrested more than 100 times does support the inference that he is a career rather than occasional thief.
Sixty dollars every day equates to $21,900 a year, which is more than three times the income that triggers the presumption of gainful employment. Jones was explicit, if laconic, that he makes all this money by theft. Surprisingly, he also receives welfare benefits, but he must be using them for his living expenses; the $21,900 is (by his own testimony, uncontradicted) to pay for his addictions. We are hard pressed to understand what kind of evidence might be presented that would rebut the presumption of gainful employment in such a case, and none was—except evidence that Jones is indeed a drug addict and an alcoholic and that it would be difficult for a person so afflicted to hold a steady job.
Williams v. Shalala,
In
Dotson
the court looked at the details of the claimant’s illegal activity and satisfied itself that it involved the same kind of physical and mental demаnds as legal activity. That step may have been unnecessary, since as in this case the claimant was well above the $500 a month threshold. The only ambiguity was that he testified that he begged as well as stole to support his drug habit, and begging is not substantial gainful activity. That wrinkle is not present here. Jones’s income is well above the $500 a month threshold, and came from work rather than charity, albeit illegal work, just as in
Bell v. Sullivan,
To receive disability benefits, an addict must be enrolled in an approved program for the treatment of his addiction — but only “so long as treatment is available,” which it rarely is, so that as a practical matter the addict need only be on a waiting list for treatment in order to receive benefits. 42 U.S.C. § 1382(e)(3)(A). A likely outcome of awarding Jones benefits would, therefore, be to enable him to increase the scale of his addictions. That is an argument against awarding disability benefits for disabilities that are due to addiction, and the law is otherwise. But it is a reason for doubting Jones’s claim that an award of benefits would enable him to abandon a life of crime.
The judgment of the district court affirming the denial of social security disability benefits to Jones is therefore
AFFIRMED.