BYRON G. CUDMORE, U.S. Magistrate Judge.
This cause is before the Court on the cross-motions for summary judgment.
I. BACKGROUND
Plaintiff Linda M. Schmidt applied for Disability Insurance Benefits on September 28, 1996, alleging that she had been disabled, due to a stroke she suffered, since September 21, 1980. Her application was denied as was her motion for reconsideration. (Tr. 53). A hearing was held before Administrative Law (ALJ) Judge Jean M. Ingrassia in September, 1997. The ALJ found that Schmidt was last insured on March 31, 1979, which was prior to the onset of her disability, and therefore she did not qualify for disability benefits. The Appeals Council denied Schmidt's request for review, and she appeals the decision in this Court.
Schmidt's earnings record indicates a last insured date of March, 1979, and also shows that she last worked in 1974. Schmidt suffered a stroke in 1980, after her insured status had expired. Schmidt argues that she also worked at her husband's automobile body repair shop from 1975, the year they married, until 1980. Based on this work, Schmidt argues that she was insured in 1980 when she suffered the stroke. She is arguing that a portion of her husband's income should be "reallocated" to her for the years 1975 to 1980.
Schmidt was not paid any wages for her assistance in her husband's business. Schmidt's husband had operated the business as a sole proprietorship prior to the marriage and the tax returns for 1975, 1978, and 1979 indicate that the business was operated as a sole proprietorship after the marriage. On those tax returns, Schmidt was shown as a housewife.
The ALJ found that the business was not operated as a partnership and that Schmidt's work in the business could not therefore operate to extend her eligibility period. The ALJ found that there was no evidence that Schmidt and her husband shared profits or losses and no evidence that Schmidt had any right to manage or control the business.
ANALYSIS
To be entitled to disability benefits, a plaintiff must meet the initial hurdle of showing that she was disabled prior to her last insured date. See 42 U.S.C. § 423(a)(1)(A). A reallocation of income from one person to another may be appropriate when an individual is incorrectly credited with self employment income. See Program Operations Manual, RS 02201.022.
Here, however, the ALJ did not err in determining that the earnings were properly posted to Mr. Schmidt and that no partnership existed. Schmidt's activities at the business included such activities as keeping books and ordering parts. As mentioned above, she received no wages and none of the indicia of a partnership, such as profit-sharing or control and management of the business, are present. Thus, the ALJ's decision that no partnership existed is supported by substantial evidence.
Schmidt also makes a somewhat unclear argument regarding "misinformation" that she received from an employee of the Social Security Administration. She argues, apparently, that this employee incorrectly informed Schmidt that she was not entitled to a reallocation of Mr. Schmidt's earnings to her. But as the ALJ determined, there was simply no indication of a partnership or wages paid to Schmidt and the alleged misinformation thus provides no basis for an award of benefits.
Finally, Plaintiff argues that the Appeals Council erred by failing to review the actual tape of the hearing before the ALJ. The Appeals Council is required to consider all the evidence in the record when it grants review. See 20 C.F.R. § 404.979. Further, the Appeals Council decision is not subject to review unless a mistake of law is alleged by the claimant. See Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997) (citing Damato v. Sullivan, 945 F.2d 982, 988 (7th Cir. 1992)). No mistake of law is alleged by Schmidt and the Appeals Council did not grant review of the ALJ's decision.
The ALJ's decision that Schmidt was not entitled to disability benefits because she was not disabled as of her last insured date was supported by substantial evidence. The Court recommends that Plaintiff's motion for summary judgment be DENIED, Defendant's motion for summary judgment be ALLOWED, and the Commissioner's decision be AFFIRMED.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.