* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Although the C ommissioner has been substituted for the Secretary in the caption, in th e 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

*** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 10/2/96 FOR THE TENTH CIRCUIT

FRANCISCO FRANCO,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5027 (D.C. No. 94-C-486-M) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, *** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Francisco Franco appeals the decision of the Secretary denying his application for disability insurance benefits b ecause, in the view of the Administrative Law Judge (ALJ), claimant had engage d in substantial gainful activity during the period in which he alleged disa bility. 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 disa bility from June 28, 1989 through August 21, 1991. During that time, however , claimant worked two part-time jobs, one as a professor of dental materi als at Lamar University, and one as an amnesty program professor at the Adult Learni ng Center of the Beaumont Independent School District. The ALJ, relying sole ly on the regulatory earnings guidelines, determined that this work activity cons tituted substantial gainful activity and that claimant was therefore ineligible for disability benefits.-3-

A person who is able to engage in substantial gainf ul activity is not disabled. 20 C.F.R. § 404.1571. The parties do no t dispute the ALJ’s finding that claimant earned an average of $352.52 per mont h from July 1989 through December 1989, and earned an average of $540.74 permonth from January 1990 through July 1991. The regulations establish that these amounts are ordinarily sufficient to demonstrate substantial gainful activ ity. See 20 C.F.R. § 404.1574 (b)(2)(vi), (vii). Where there is no evidence othe r than the amounts earned over a specific period, the determination of substantial g ainful activity may be made solely on the basis of the regulatory earnings stan dards. See Fowler v. Bowen , 876 F.2d 1451, 1453 n.3 (10th Cir. 1989). But, whe re other evidence is offered, the presumption established by the regulations is r ebuttable. This is clear from the titles to the earnings guidelines, 20 C.F.R. § 404.1574(a)(1)(“Your earnings
mayshow you have done substantial gainful activity.”) (emphasis added); id. at (b)(2)(“Earnings that will ordinarilyshow that you have engaged in substantial gainful activity.”)(emphasis added), as well as fro m case law, see Jozefowicz v. Heckler , 811 F.2d 1352, 1356 (10th Cir. 1987)(“Earnings gu idelines in the regulations suggestthat income [above the guidelines] generallyis 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.-4-

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 su bstantial gainful activity based on earnings alone include whether the claiman t experienced significant absenteeism and rendered substandard job performanc e but was paid the same regardless of how much work he missed or accomplish ed, see Thompson , 928 F.2d at 278; whether the claimant required help fro m 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 considere d all the evidence which included the claimant’s testimony regarding need fo r 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 titl e, see id. at 64. Further, claimant states that, in comparison to other worker s, he worked shorter hours, had fewer or easier duties, required extra help, had lo wer 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.-5-

There is evidence in the record from the Beaumont S chool 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 claim ant 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 outwei ghed claimant’s contentions. Claimant’s evidence, however, may also be taken to relate to his experiences at Lamar University and, as such, is unchallenged. Wh ile we acknowledge that it is claimant’s burden to prove disability, it is also t he 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 uncontrov erted 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 determ ination. He was required to consider claimant’s evidence and make specific find ings, which we could review, explaining why the evidence claimant offered failed to rebut the statutory presumption.-6-

The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and the case is REMANDED t o the district court for remand to the Commissioner for further proceedings consistent with this opinion.

Entered for the Court

Michael R. Murphy Circuit Judge