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The First Hurdle You Must Overcome to Get Social Security Disability: Substantial Gainful Activity a

Harold W. Dotson v. Donna E. Shalala, Secretary of the Department of Health and Human Services of the United States of America 1 F.3d 571 (1993) no. 92-3148 August 2, 1993

My last blog entry talked about former Governor Mike Huckabee talking about pimps, prostitutes, and drug dealers getting Social Security Disability. While I mocked his statement, I did come across the following case. So in the issue of fairness here it is.

The very first step someone must pass in order to obtain Social Security Disability is to prove that they are not involved in any type of substantial gainful activity. This means that they are not performing some sort of significant physical or mental activity which is usually done for profit. In other words they have a job and are getting paid for it. If you have a job and are getting paid for it, you will not qualify for Social Security Disability. While there are nuances to this rule related to self-employment, wages earned each month, and the number of hours worked I am not going to address those here. This leads us to Harold Dotson.

Harold Dotson applied for Social Security Disability based on asthma, multiple allergies, and what the decision describes as “past drug use.” At his appeal hearing upon questioning by the Administrative Law Judge he admitted that he still panhandled and stole to support his habit. Upon questioning by the Judge he told how he cased places from which to steal which often took a full day, that he steals a lot of chainsaws because of the high demand, and how he shopped them around to various small business and took orders from those business for specific items to steal. He estimated that he made $5,600 a month. Dotson’s Attorney argued that since this was illegal activity it could not be considered substantial gainful activity. The Administrative Law Judge disagreed. Dotson appealed it to the Circuit Court.

The Circuit Court basically said that if Mr. Dotson could do all the physical and mental activities needed to steal and panhandle as he described, then he most certainly could perform the duties of a regular job despite any disabilities. They also indirectly said that the knowledge of illegal activities for making adjudicative decisions in corollary areas of the law outside the criminal realm was well supported by the federal courts. The most known example they cite is a string of case involving the IRS which have permitted the IRS for many years to tax income gained from illegal activities.

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