from his hustling. Although Dotson did not testify that he
made this much, he conceded that he consumed that much each
day in drugs. Because Dotson testified that his drug habit was
supported completely by his hustling, the ALJ deduced that
Dotson must have been bringing in that much money each day as
well. Dotson suggests that this inference is impermissible.
This court disagrees. If Dotson testified that he spent $200
to $300 on drugs and that he obtained this money through
hustling, the ALJ could conclude that Dotson was bringing in
at least that much per day.
Dotson also suggests that the ALJ erred in finding that he
earned $200 to $300 each day because he testified that part of
his hustling income was derived from panhandling. Dotson
argues that, under 20 C.F.R. § 1121(g), this would constitute a
gift and would not count in the substantial gainful activity
calculation. This argument is also without merit. First of all,
the regulation section cited by Dotson does not apply here.
That section addresses what income is counted in assessing a
SSI claimant's resources and income; it does not relate to the
question of what constitutes substantial gainful activity in
the disability analysis. In the regulation sections addressing
substantial gainful activity, there is no discussion of whether
gifts can constitute SGA. Even assuming that they cannot, the
ALJ's decision still rests upon substantial evidence. The ALJ
largely disbelieved Dotson when he testified that he was given
money by other residents in the Warner Homes project. The ALJ
noted that this was a poor neighborhood and that if Dotson did
actually receive gifts from others, the amounts he received
must have been a very small part of his $200 to $300 daily
income. These credibility determinations by the ALJ are not to
be disturbed on appeal unless clearly erroneous. See Anderson
v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504,
1511, 84 L.Ed.2d 518 (1985). This court finds no such clear
II. Deduction of Drug Costs
Dotson next argues that, even if there is substantial
evidence to find that he earned $200 to $300 per day, he spent
all of that money on drugs which reduced his net income to
zero. Dotson argues that the drug costs were in effect "work
expenses" which should be deducted from his income. This
argument too is without merit.
The regulations do provide that certain impairment-related
work expenses will be deducted from a claimant's income when
assessing substantial gainful activity. See 20 C.F.R. §
416.976. However, to be deductible, such expenses must be
incurred for "items and services which, because of your
impairment(s), you need and use to enable you to work." Id.
Dotson has made no showing that the cocaine and heroin he used
on a daily basis was necessary to keep his stealing business
afloat. As noted by the Secretary, Dotson did not use drugs in
order to steal; rather he stole to obtain drugs. In this sense,
Dotson's drug expenses are no more a work expense than grocery
bills — they simply reflect the way he chose to spend his
III. Due Process
Dotson's final argument is that the ALJ's finding that his
hustling proceeds constitute substantial gainful activity
creates a catch-22 which violates due process. Dotson suggests
that if he did not hustle, the ALJ would have found that he
was not really under the influence of drugs and therefore not
disabled. Dotson contrasts that with the situation where the
claimant is hustling to support his habit, in which case the
ALJ would find him not disabled because he is engaged in
substantial gainful activity.
This argument blurs two distinct concepts — substantial
gainful activity and impairment. If a claimant is engaged in
substantial gainful activity, he will be found not disabled. If
a claimant is not suffering from an impairment, he will be
found not disabled. The claimant must satisfy both tests.
However, one requirement does not negate the other. Dotson's
suggestion that a finding of no substantial
gainful activity is going to lead to a finding of no
impairment is completely without basis. The ALJ could find in
any given case that a drug addict who was not engaged in
substantial gainful activity was nonetheless under the
influence of drugs and thereby impaired. See O'Connor v.
Sullivan, 938 F.2d 70, 74 (7th Cir. 1991).
For the reasons set forth above, the Plaintiff's motion for
summary reversal (# 9) is DENIED and the Defendant's motion
for summary affirmance (# 10) is GRANTED.
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