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Public Health — disability benefits

By: WISCONSIN LAW JOURNAL STAFF//November 1, 2011//

Public Health — disability benefits

By: WISCONSIN LAW JOURNAL STAFF//November 1, 2011//

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United States Court of Appeals

Civil

Public Health — disability benefits

It was error to consider a trial work period as substantial gainful activity in denying disability benefits.

“The Commissioner asserts that even if Tumminaro’s trial work period had not ended, a remand is unnecessary because substantial evidence supports the ALJ’s conclusion that she had experienced medical improvement by February 2008 and thus was no longer disabled. An ALJ may rely on medical or other evidence during a trial period to conclude that a disability ended. 20 C.F.R. § 404.1592(e)(3). But the ALJ in this case inferred medical improvement solely from Tumminaro’s return to work, not her medical records. The ALJ provided no analysis of the medical evidence after February 2008 and simply remarked that Tumminaro ‘testified to, and her medical records show, improvement.’ Tumminaro testified, however, that her back pain had not improved since 2004 and that her return to work had aggravated her condition. The ALJ’s conclusory statement to the contrary does not support a finding of medical improvement. See Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008); Dixon v. Barnhart, 324 F.3d 997, 1001-02 (8th Cir. 2003). On remand the ALJ must address Tumminaro’s entitlement to a trial work period. The ALJ should determine, based on Tumminaro’s monthly wages, whether—and when—she exhausted all nine months of her trial work period. If she completed the trial period, the ALJ must assess whether she is capable of substantial gainful activity before terminating her benefits. If Tumminaro regained that ability, she still is entitled to benefits for three months after the end of her trial period. In the alternative, the ALJ may terminate Tumminaro’s benefits if he concludes, relying on evidence other than Tumminaro’s work during her trial period, that she experienced medical improvement.”

Vacated and Remanded.

11-1846 Tumminaro v. Astrue

Appeal from the United States District Court for the Northern District of Illinois, Reinhard, J., Per Curiam.

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