UNITED STATES COURT OF APPEALS
Filed 10/2/96
FOR THE TENTH CIRCUIT
FRANCISCO FRANCO,
Plaintiff-Appellant,
v. No. 96-5027
(D.C. No. 94-C-486-M)
SHIRLEY S. CHATER, (N.D. Okla.)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, *** District
Judge.
*
Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Although the Commissioner has been
substituted for the Secretary in the caption, in the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
***
Honorable G. Thomas Van Bebber, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Claimant Francisco Franco appeals the decision of the Secretary denying
his application for disability insurance benefits because, in the view of the
Administrative Law Judge (ALJ), claimant had engaged in substantial gainful
activity during the period in which he alleged disability. Because the ALJ failed
to consider evidence presented by claimant which may rebut the earnings
presumption relied upon to support the decision, we remand this case for further
proceedings.
Claimant is a dentist whose neck and shoulder were injured in an attack by
a mentally retarded patient. Claimant claimed disability from June 28, 1989
through August 21, 1991. During that time, however, claimant worked two
part-time jobs, one as a professor of dental materials at Lamar University, and one
as an amnesty program professor at the Adult Learning Center of the Beaumont
Independent School District. The ALJ, relying solely on the regulatory earnings
guidelines, determined that this work activity constituted substantial gainful
activity and that claimant was therefore ineligible for disability benefits.
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A person who is able to engage in substantial gainful activity is not
disabled. 20 C.F.R. § 404.1571. The parties do not dispute the ALJ’s finding
that claimant earned an average of $352.52 per month from July 1989 through
December 1989, and earned an average of $540.74 per month from January 1990
through July 1991. The regulations establish that these amounts are ordinarily
sufficient to demonstrate substantial gainful activity. See 20 C.F.R. § 404.1574
(b)(2)(vi), (vii). Where there is no evidence other than the amounts earned over a
specific period, the determination of substantial gainful activity may be made
solely on the basis of the regulatory earnings standards. See Fowler v. Bowen,
876 F.2d 1451, 1453 n.3 (10th Cir. 1989). But, where other evidence is offered,
the presumption established by the regulations is rebuttable. This is clear from
the titles to the earnings guidelines, 20 C.F.R. § 404.1574(a)(1)(“Your earnings
may show you have done substantial gainful activity.”)(emphasis added); id. at
(b)(2)(“Earnings that will ordinarily show that you have engaged in substantial
gainful activity.”)(emphasis added), as well as from case law, see Jozefowicz v.
Heckler, 811 F.2d 1352, 1356 (10th Cir. 1987)(“Earnings guidelines in the
regulations suggest that income [above the guidelines] generally is to be
considered substantial.”)(emphasis added); see also Payne v. Sullivan, 946 F.2d
1081, 1083 (4th Cir. 1991); Thompson v. Sullivan, 928 F.2d 276, 277 (8th Cir.
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1991); Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990)(all holding
guideline presumption to be rebuttable).
Factors relevant in rebutting the presumption of substantial gainful activity
based on earnings alone include whether the claimant experienced significant
absenteeism and rendered substandard job performance but was paid the same
regardless of how much work he missed or accomplished, see Thompson, 928
F.2d at 278; whether the claimant required help from co-workers to accomplish
his work, see Katz v. Secretary of Health & Human Servs., 972 F.2d 290, 292-94
(9th Cir. 1992)(finding that ALJ properly considered all the evidence which
included the claimant’s testimony regarding need for help); whether the claimant
could work for only brief periods of time, see Keyes, 894 F.2d at 1056, and
whether he needed special accommodation from the employer, see id.
The record before us contains statements by claimant that the lectures he
gave were suboptimal, see Appellant’s App. at 157, but that his pay was no
different from other workers with the same job title, see id. at 64. Further,
claimant states that, in comparison to other workers, he worked shorter hours, had
fewer or easier duties, required extra help, had lower production of lower quality,
and was frequently absent. Id. Claimant indicated that he did not have to do lab
work and missed work about once per month. Id.
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There is evidence in the record from the Beaumont School District
indicating that claimant “does an exceptional job,” did not require any unusual
assistance, and that his work was worth the amount of money he was paid. Id. at
92-93. There is no evidence, however, relating to claimant’s work at Lamar
University to counter the allegations made by claimant regarding any limitations
experienced there.
It is possible that the ALJ considered the evidence from the school district
and concluded, as the trier of fact, that it outweighed claimant’s contentions.
Claimant’s evidence, however, may also be taken to relate to his experiences at
Lamar University and, as such, is unchallenged. While we acknowledge that it is
claimant’s burden to prove disability, it is also the duty of the ALJ to develop the
record, Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994), and to
consider all the evidence, discussing the uncontroverted evidence not relied upon,
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). With no evidence to
counter the rebuttal evidence offered by claimant, the ALJ could not merely rely
on the numerical guidelines to arrive at his determination. He was required to
consider claimant’s evidence and make specific findings, which we could review,
explaining why the evidence claimant offered failed to rebut the statutory
presumption.
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The judgment of the United States District Court for the Northern District
of Oklahoma is REVERSED, and the case is REMANDED to the district court for
remand to the Commissioner for further proceedings consistent with this opinion.
Entered for the Court
Michael R. Murphy
Circuit Judge
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