III. The ALJ's Conclusion That Substantial Gainful Activity Was Available to Johnson Is Supported By Substantial Evidence
Johnson's last argument is that his job with United Airlines was not "past relevant work" as defined by the Social Security regulations. See 20 C.F.R. § 404.1560(b) ("If you still have the capacity to do your past relevant work, we will find that you can still do your past work, and we will determine that you are not disabled . . ."). Instead, he claims, the food service job was a "make-work" position not found in the competitive job market. Therefore, the ALJ's finding that Johnson could engage in substantial gainful activity by returning to his previous job was error. In support of this contention, Johnson cites Kolman v. Sullivan, 925 F.2d 212 (7th Cir. 1991).
In Kolman, the Seventh Circuit held that "a nonexistent makework training job is not past relevant work within the meaning of the regulations as we interpret them." 925 F.2d at 214. The regulation at issue was 20 C.F.R. § 404.1565(a), which provides that past relevant work is work that was "done within the last 15 years, lasted long enough for you to learn how to do it, and was substantial gainful activity." The plaintiff had worked as a "non-intervening security guard," a position created as part of a federal job training program that had since been terminated. Id. at 213. His duties departed substantially from those that would normally accompany a security guard position -- for instance, he was not expected to "confront an intruder, come to the aid of a person being attacked, or in short do anything to 'intervene' in a dangerous situation that might erupt on his watch." Id. The uniqueness of his job, the fact that it was a "makework training job" created to prepare the plaintiff for real work, and, more importantly, the fact that the job no longer existed led the court to conclude that it was not past relevant work to which he could return and engage in substantial gainful activity. Id. at 213-14. Where the usual assumption that the plaintiff's past work exists in sufficient numbers is "dramatically falsified in a particular case," the court held, the ALJ must move on to determine whether the national economy offers other jobs commensurate with the plaintiff's capabilities. Id. at 213. Johnson claims that his food service job is as much a make-work position as the plaintiff's in Kolman.
Johnson's argument fails, for two reasons. First, the ALJ did determine that Johnson had the ability to perform other jobs in the regional economy besides his past work. She asked the VE what other jobs would meet Johnson's RFC if he were capable of only sedentary work. The VE responded by naming several positions, each of which existed in significant numbers throughout the regional economy. Johnson does not attempt to characterize any of these jobs as "make work" or ungainful activity. Second, Johnson's position is distinguishable from the non-intervening security guard job in Kolman. There is no evidence that the United food service job was temporary; indeed, Johnson was employed in that position for almost three years, starting right after his back surgery in 1990. Nor did Johnson testify that it was a training job, meant to prepare him for "real" work. Although United Airlines did not have work for Johnson at the time he left in 1993, the record does not suggest that the company had permanently eliminated his position -- indeed, he remained on the employment rolls. In short, the assumption that Johnson's job at United Airlines was competitive employment has not been "dramatically falsified" in this case. See Knight v. Chater, 55 F.3d 309 at 314, 315 (7th Cir. 1995) (Kolman does not apply when the claimant's past work is neither a temporary nor a training job).
Furthermore, substantial evidence supports the ALJ's determination that Johnson's job was gainful activity, defined as "work activity that you do for pay or profit." 20 C.F.R. § 404.1572(b).
There is no merit to Johnson's suggestion that his job was "sheltered," which the regulations use to describe a situation in which "you may or may not be earning the amounts you are being paid" because the work is being done "under special conditions," see id. § 404.1574(a)(2), (3). While the VE testified that it was unusual for a company to permit an employee to lie down occasionally, as Johnson did when experiencing back pain, she did not leap to the conclusion that Johnson was therefore not earning what he was being paid. Johnson bore the burden of proving that he was unable to perform his past work, see Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987), and he presented no evidence that his ability to lie down at times diminished his productivity to the point that he was earning only $ 500 of the approximately $ 1500 per month he reported making during 1991 and 1992. See 20 C.F.R. § 404.1574(b)(2)(vii) (an employee has engaged in substantial gainful activity if his earnings averaged more than $ 500 per month after 1989).
In sum, Johnson's work situation at United Airlines was vastly different than the position in Kolman and he has failed to prove that the volitional control accompanying his job diminished his true earnings to an "ungainful" level. Moreover, even if Johnson's past work were simply make-work or "sheltered," this does not change the fact that the ALJ deemed him able to perform a number of unskilled sedentary positions that are plentiful in the regional economy -- a finding that Johnson does not dispute.
For the reasons stated above, the ALJ's determinations as to the functional limitations of Johnson's mental condition and his ability to engage in substantial gainful activity are supported by substantial evidence. While we are sympathetic to Johnson's disability claim, we cannot conclude that the ALJ's denial of the claim was erroneous in light of the evidence presented at the administrative hearing. Accordingly, we deny Johnson's motion for summary judgment and grant the Commissioner's motion for summary judgment. The decision of the ALJ is affirmed. The Clerk of the Court is directed to enter judgment, pursuant to Fed. R. Civ. P. 58, in favor of the defendant Commissioner and against plaintiff Johnson.
United States District Judge
June 19, 1997
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of the defendant Shirley S. Chater, Commissioner of Social Security and against the plaintiff David Johnson. The decision of the Commissioner is hereby affirmed.
This cause of action is dismissed in its entirety. There being no just reason for delay, this is a final and appealable order.
June 19, 1997