Steven A. Dykes - Page 6




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          17A(f)(2), Income Tax Regs.  The regulations also set forth                 
          general considerations upon which a determination of disability             
          is to be made, such as the nature and severity of the impairment.           
          Sec. 1.72-17A(f)(1), Income Tax Regs.  However, the regulations             
          emphasize that the “substantial gainful activity” to which                  
          section 72(m)(7) refers is the activity, or a comparable                    
          activity, in which the individual customarily engaged before the            
          disability.  Id.  Therefore, the impairment must be evaluated in            
          terms of whether it does, in fact, prevent the individual from              
          engaging in his customary, or any comparable, substantial gainful           
          activity considering the individual’s education, training, and              
          work experience.                                                            
               According to Dr. Mitchell’s medical reports, petitioner                
          experienced fatigue as a result of his illness.  Nevertheless,              
          petitioner was able to continue working.  In order to treat the             
          fatigue, petitioner was prescribed a medication called Ritalin.             
          Dr. Mitchell noted on petitioner’s subsequent visits that Ritalin           
          had made a significant difference in petitioner’s work                      
          performance and that petitioner was having less problems with               
          fatigue and attention.                                                      
               Petitioner’s illness, however, ultimately prompted him to              
          switch to a graveyard shift which had a lighter workload.  See              
          Thomas v. Commissioner, T.C. Memo. 2005-258 (holding that the               
          taxpayer was still able to engage in substantially gainful                  







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