Bencomo Perez v. Colvin

Filing 24

ORDER vacating Defendant's denial of disability insurance benefits and supplemental security income and remanding the case to Defendant for further proceedings pursuant to sentence four in 42 U.S.C. § 405(g). Entered by Judge Raymond P. Moore on 12/9/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-02436-RM
JOSE PAUL BENCOMO PEREZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Plaintiff Jose Paul Bencomo Perez’s (“Plaintiff”)
request for judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) Plaintiff challenges the
final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, by which she denied Plaintiff’s applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) respectively under Titles II and XVI of the
Social Security Act (“Act”). An Administrative Law Judge (“ALJ”) ruled Plaintiff was not
disabled within the meaning of the Act and therefore not entitled to DIB or SSI.
Defendant provided the Court with the administrative record. (ECF Nos. 10; 10-1; 10-2;
10-3; 10-4; 10-5; 10-6; 10-7; 10-8.) The parties have fully briefed the matter and it is ripe for
adjudication. (ECF Nos. 13; 16; 17.)
For the reasons set forth below, the Court vacates Defendant’s denial of Plaintiff’s DIB
and SSI applications and remands for further proceedings consistent with this Order.
1

I.

BACKGROUND
In April 2009, Plaintiff applied for DIB and SSI alleging he was disabled as of January

22, 2009 (Tr. 238-47), due to the following conditions that limit his ability to work: “spinal
injury – severe pain in lower back and tailbone, long history of shoulder problems, mood
disorder” (Tr. 317). After Plaintiff’s applications were initially denied (Tr. 154-159), Plaintiff
requested a hearing before an ALJ (Tr. 160) which occurred in March 2011 (Tr. 45-79). In 2011,
the ALJ denied Plaintiff’s applications. (Tr. 126-150.) Plaintiff requested review of the ALJ’s
decision and, in 2012, the Appeals Council remanded the matter to the ALJ for further
consideration. (Tr. 151-153.) Subsequently, in February 2013, Plaintiff had another hearing
before the ALJ. (Tr. 80-97.) In March 2013, the ALJ issued the at-issue decision. (Tr. 14-44.)
Plaintiff requested review of the ALJ’s decision, and in July 2014, the Appeals Council denied
such review. (Tr. 1-13.) Plaintiff timely requested judicial review before the Court.
A.

Background and Relevant Medical Evidence

Plaintiff was born in 1977. (Tr. 240.) Plaintiff completed high school and attended Job
Corps. (Tr. 323.) There is conflicting evidence as to whether Plaintiff attended special
education classes. (Tr. 49, 323, 370, 451.) Plaintiff reported his past work1 as a dishwasher2,
general laborer3, harvest-laborer, and painter4. (Tr. 318.)
1

At the first hearing, the vocational expert testified that Plaintiff has past work also including store clerk, retail with
a skilled vocational preparation (“SVP”) of 4 and also as a busboy with a SVP of 2. (Tr. 65.)
2
At the second hearing, the vocational expert testified that Plaintiff’s work as a dishwasher is classified as a
“kitchen helper with an SVP of 2. . . .” (Tr. 94.) At the first hearing, the vocational expert testified that Plaintiff is a
dishwasher/prep cook with SVP of 2. (Tr. 65.)
3
At the second hearing, the vocational expert testified that Plaintiff’s work as a general laborer is classified as a
“material handler with an SVP of 3. . . .” (Tr. 94.) At the first hearing, the vocational expert testified that Plaintiff
was a general laborer or loader with SVP of 3. (Tr. 65.)
4
The parties dispute whether Plaintiff’s work as a painter is part of his Job Corps training or whether he was
actually employed. Specifically, at the first oral hearing in this matter, the vocational expert testified that he would
“leave it up to [the ALJ] [as to] what [the ALJ is] going to count as SGA because I do not believe the Job Corps as

2

Plaintiff claims he became disabled on January 22, 2009 due to a combination of physical
and mental health impairments. (Tr. 244, 317.) At the second hearing in this matter, Plaintiff’s
counsel raised an issue as to whether Plaintiff’s mental impairments include an intellectual
disability. (Tr. 96.)
Plaintiff has an extensive medical history. Neither party disputes that Plaintiff has not
always been compliant with his providers’ recommendations or their prescribed medical
treatments.
In October 2008, physician assistant (“PA”) Eric Frevert diagnosed Plaintiff with bipolar
disorder and prescribed Plaintiff medication. (Tr. 442.) Additionally, Frevert diagnosed Plaintiff
with right shoulder tendonitis. (Tr. 442.)
In April 2009, PA David Daboll diagnosed Plaintiff with back pain. (Tr. 433.) James
Hubbard, M.D., diagnosed Plaintiff with mild loss of lumbar lordosis. (Tr. 418.)
In June 2009, PA Frevert examined Plaintiff and stated that he was not totally disabled
and recommended vocational rehabilitation. (Tr. 422.)
In July 2009, Alan Ketelhohn, M.D., a state-agency physician, reviewed the medical
record and concluded that Plaintiff could lift 20 pounds occasionally and ten pounds frequently;
stand and/or walk about six hours in an eight-hour workday; and sit six hours in an eight-hour
workday. (Tr. 107-08, 120-21.) In addition, Plaintiff could push and/or pull without limitation,
and had no postural, manipulative, visual, communicative, or environmental limitations. (Tr.
107-08, 120-21.)

he described it was SGA because he was just provided housing for the painting . . .” (Tr. 65.) At the second
hearing, the vocational expert testified Plaintiff has a work history as a “painter with an SVP of 7.” (Tr. 95.)

3

In July 2009, Richard Madsen, Ph.D., conducted a psychological consultative
examination. (Tr. 448-52.) Dr. Madsen diagnosed Plaintiff with bipolar disorder, posttraumatic
stress disorder, developmental learning disorder, impaired intellectual functioning, and
personality disorder. (Tr. 451.) Dr. Madsen opined that Plaintiff’s ability to do work-related
activities is at the marked level because Plaintiff has “difficulty maintaining a regular work
schedule, focusing and concentrating on work, relating to peers, coworkers, supervisors, and the
general public.” (Tr. 451.)
In July 2009, Alberta Ziomek, M.D., a state-agency psychiatrist, reviewed the medical
record and completed a Psychiatric Review Technique Form. (Tr. 104-05.) Dr. Ziomek found
that Plaintiff had moderate restrictions in the activities of daily living, social functioning, and in
maintaining concentration, persistence, or pace. (Tr. 104-05, 117-18.) Dr. Ziomek found
Plaintiff had no extended episodes of decompensation. (Tr. 104-05, 117-18.) Dr. Ziomek
opined that Plaintiff is capable of performing simple, repetitive work activity without close
contact with the public and co-workers. (Tr. 103, 116.)
In June 2010, Frevert completed a Med-9 form5, in which he opined that Plaintiff was
disabled for six months due to bipolar disorder, chronic back pain, and shoulder pain. (Tr. 460.)
In February 2011, Nicole Tolle, LPC, determined that Plaintiff had an organic mental
disorder, psychotic disorder, affective disorder, anxiety disorder, somatoform disorder,
personality disorder, and a substance addiction disorder. (Tr. 490-502.) Tolle opined that
Plaintiff had marked restrictions in daily living activities; extreme difficulties in social
functioning; and extreme difficulties in maintaining concentration, persistence or pace. (Tr. 500,
5

A Med-9 form is used by the Colorado Department of Human Services to determine eligibility for state programs.
See Chapo v. Astrue, 682 F.3d 1285, 1289 (10th Cir. 2012).

4

503.) Tolle also opined that Plaintiff had four or more extended episodes of decompensation.
(Tr. 500.) Tolle determined that Plaintiff had “marked” limitations in understanding and
memory, moderate and marked limitations in sustained concentration and persistence, marked
limitations in social interaction, and marked limitations in adaptation. (Tr. 503-05.) Tolle
opined that Plaintiff had no capacity to perform work-related mental activities on a sustained
basis. (See Tr. 506.)
In March 2012, Plaintiff sought mental health counseling. (Tr. 597.) Plaintiff received
mental health counseling, skills training, and medication management from approximately April
2012 through January 2013. (Tr. 587-97.)
In June 2012, PA Michael Noonan completed a Med-9 form opining that Plaintiff was
“totally and permanently disabled” due to bipolar disorder, depression, and chronic back pain.
(Tr. 536.)
B.

The ALJ’s Decision

On March 4, 2013, ALJ William Musseman issued his decision in this matter denying
Plaintiff DIB and SSI. (Tr. 14-39.) In reaching his decision, ALJ Musseman followed the fivestep sequential evaluation process for evaluating disability claims. (Tr. 19-39.) ALJ Musseman
found that Plaintiff has met the disability insured status of the Act and has not engaged in
substantial activity since January 22, 2009, the alleged onset date. (Tr. 20.) ALJ Musseman
found that Plaintiff has the following severe impairments: chronic right shoulder pain, with
history of rotator cuff repair; and mood/anxiety disorder. (Tr. 20-23.) ALJ Musseman found
that Plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in Appendix 1 of the Social Security Regulations,
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specifically considering Listings 12.04 and 12.06. (Tr. 23-26.) ALJ Musseman found Plaintiff’s
residual functional capacity (“RFC”) to be as follows: “to perform light work, as defined in 20
CFR 404.1567(b) and 416.967(b), except the claimant can perform no over chest level work or
work involving dealing with the general public.” (Tr. 26-37.) ALJ Musseman found that
Plaintiff has past relevant work and that he is unable to perform such work. (Tr. 37-38.)
Based on the vocational expert’s testimony, which in turn was predicated on ALJ
Musseman’s hypotheticals and in consideration of Plaintiff’s age, education, and work
experience, ALJ Musseman found that Plaintiff could perform jobs that exist in significant
numbers in the national economy, including: food service worker and marker. (Tr. 38-39.)
Therefore, ALJ Musseman concluded that Plaintiff was not disabled. (Tr. 39.)
C.

Procedural History

Plaintiff appealed the ALJ’s decision at issue in this matter. (Tr. 7-13.) On July 31,
2014, the Appeals Council denied Plaintiff’s request for review. (Tr. 1-6.) Plaintiff appeals that
decision by bringing this lawsuit. (ECF No. 1.)
II.

LEGAL STANDARDS6
A.

Standard of Review

The Court reviews the Commissioner’s decision to determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial
evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.

6

Many C.F.R. citations are to part 404—which addresses DIB claims. All cited regulations have parallel citations
in part 416—which addresses SSI claims.

6

Id. “It requires more than a scintilla, but less than preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007).
Although a district court will “not reweigh the evidence or retry the case,” it
“meticulously examine[s] the record as a whole, including anything that may undercut or detract
from the ALJ’s findings in order to determine if the substantiality test has been met.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007); see also 42 U.S.C. ' 405(g). Evidence is not
substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may not
substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir.
2006). As the Tenth Circuit Court of Appeals observed in Baca v. Dep’t of Health & Human
Servs., 5 F.3d 476 (10th Cir. 1993), the ALJ also has a basic duty of inquiry to “fully and fairly
develop the record as to material issues.” Id. at 479-480 (citations omitted). This duty exists
even when the claimant is represented by counsel. Id. at 480 (citation omitted).
Also, “[t]he failure to apply the correct legal standard or to provide [a reviewing] court
with a sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (citation and
internal quotation marks omitted); see also Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.
1996) (“[T]he Secretary’s failure to apply the correct legal standards, or to show us that [he] has
done so, are . . . grounds for reversal.”).
B.

Evaluation of Disability

The criteria to obtain DIB under Title II of the Act are that a claimant meets the insured
status requirements, is younger than 65 years of age, files an application for a period of
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disability, and is under a “disability” as defined under Title II of the Act. 42 U.S.C. §§ 416(i),
423(a); Flint v. Sullivan, 951 F.2d 264, 267 (10th Cir. 1991). In addition, the individual’s
disability must have begun before his or her disability-insured status has expired. 20 C.F.R. §
404.101; Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *8 (1983).
The criteria for SSI payments under Title XVI of the Act are determined on the basis of
the individual’s income, resources, and other relevant characteristics. 42 U.S.C. § 1382(c)(1). In
addition to being financially eligible, the individual must file an application for SSI and be under
a disability as defined in the Act. 42 U.S.C. § 1382.
The Act defines “disability” as the inability “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment [that] can be expected to
result in death or [that] has lasted or can be expected to last for a continuous period of not
[fewer] than twelve months.” 42 U.S.C. § 1382c(a)(3)(A) (definition for benefits under SSI); see
also 42 U.S.C. § 423(d)(2)(A) (definition for benefits under DIB); Barnhart v. Walton, 535 U.S.
212, 214-15 (2002).
There is a five-step sequent for evaluating a disability. See 20 C.F.R. §§ 404.1520,
416.920(a)(4); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing five-step analysis). If
it is determined that a claimant is or is not disabled at any point in the analysis, the analysis ends.
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). First, the
claimant must demonstrate that he or she is not currently involved in any substantial, gainful
activity. 20 C.F.R. §§ 404.1520(b), 416.920(a)(4)(i). Second, the claimant must show a
medically severe impairment or combination of impairments that significantly limits his or her
physical or mental ability to do basic work activities. Id. at §§ 404.1520(c), 416.920(a)(4)(ii).
8

Third, if the impairment matches or is equivalent to an established listing under the governing
regulations, the claimant is judged conclusively disabled. Id. at §§ 404.1520(d),
416.920(a)(4)(iii). If the claimant’s impairment does not match or is not equivalent to an
established listing, the analysis proceeds to the fourth step. Fourth, the claimant must show that
the “impairment prevents [him or her] from performing work [he or she] has performed in the
past.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988) (citations omitted); accord 20
C.F.R. §§ 404.1520(f), 416.920(a)(4)(iv). If the claimant is able to perform his or her previous
work, he or she is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(a)(4)(iv). Fifth, the
Commissioner must demonstrate: (1) that based on the claimant’s residual functional capacity
(“RFC”), age, education, and work experience, the claimant can perform other work; and (2) the
work that the claimant can perform is available in significant numbers in the national economy.
Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987); see also 20 C.F.R. §§ 404.1520(g),
416.920(a)(4)(v).
III.

ANALYSIS
Plaintiff raises numerous issues for the Court’s consideration, including that: (1) the ALJ

failed to develop the record with respect to Plaintiff’s IQ7 (ECF No. 13 at 16-21); (2) the ALJ
failed to develop the record with respect to an updated medical opinion (ECF No. 13 at 21-22);
(3) the ALJ’s RFC determination lacks substantial evidence in that the ALJ incorrectly rejected
certain medical opinions (ECF No. 13 at 22-30); and (4) the ALJ’s credibility determination
lacks substantial evidence (ECF No. 13 at 30-33).

7

A subset of this argument is that the ALJ failed to address Plaintiff’s applications under Listing 12.05C. (ECF No.
13 at 18.)

9

Because the Court finds the ALJ committed legal error due to his failure to analyze
Plaintiff’s applications under Listing 12.05C and more specifically, that the ALJ failed to order a
consultative examination to ascertain Plaintiff’s IQ, the Court VACATES Defendant’s decision.
Because this error alone requires remand, the Court does not address the other arguments
raised by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ’s
error affected the analysis as a whole, the court declined to address other issues raised on
appeal); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the
remaining issues raised by appellant because they may be affected by the ALJ’s treatment of this
case on remand.”). The Court expresses no opinion as to Plaintiff’s other arguments and neither
party should take the Court’s silence as tacit approval or disapproval of how the evidence was
considered. The Court does not intend by the opinion to suggest the result that should be reached
on remand; rather, the Court encourages the parties as well as the ALJ to consider all of the
evidence and the issues anew.
A.

The ALJ Committed Reversible Error by Failing to Analyze Plaintiff’s
Claim that He Met Listing 12.05C

An ALJ is required “to discuss the evidence and explain why he found that [a claimant]
was not disabled at step three.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1997)
(alternation in original). In this matter, the ALJ specifically found that Plaintiff’s “mental
impairments do not meet or medically equal the criteria of listing 12.04 or 12.06.” (Tr. 23.) The
ALJ does not discuss whether, as Plaintiff’s counsel raised at hearing (Tr. 96), Plaintiff’s
impairments meet or medically equals the criteria of listing 12.05C. (See generally Tr. 23-26.)
An ALJ is not required to “exhaust every possible line of inquiry in an attempt to pursue every

10

potential line of questioning. The standard is one of reasonable good judgment.” Wall, 561 F.3d
at 1062 (quoting Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997)).
Listing 12.05 provides as follows:
Intellectual disability refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements in . .
. C . . . are satisfied.
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related
limitation of function.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C.
In this matter, Plaintiff presented the ALJ with his IQ scores from before the age of 22.
(Tr. 372-73.) Plaintiff had a verbal IQ of 66, performance IQ of 69, and full scale IQ of 65 at
age 10. (Tr. 372.) Approximately three years earlier, Plaintiff had had the same testing (WISCR) conducted. (Tr. 373.) The earlier testing did not report an IQ score, but the raw and scaled
test scores were similar to the later scores.8 The ALJ determined Plaintiff had other physical and
mental impairments (“chronic right shoulder pain, with history of rotator cuff repair; and
mood/anxiety disorder” (Tr. 20-23)) which imposed significant work-related limitations (“to
perform light work, as defined in 20 CFR 404.1567(b) and 416.967(b), except the claimant can
perform no over chest level work or work involving dealing with the general public” (Tr. 2637)).
8

The scores at age 7 were as follows: Raw Scores- verbal 64; performance 88; full scale 74. (Tr. 373.) Scaled
scores- verbal 24; performance 42; full scale 66. (Tr. 373.) At age 10, the scores were as follows: Raw Scoresverbal 50; performance 77; full scale not reported. (Tr. 372.) Scaled scores- verbal 22; performance 26; full scale
48. To the extent that scores correlate with IQ, Plaintiff’s IQ would have dropped over time.

11

Thus, the ALJ failed to exercise “reasonable good judgment” by not analyzing whether
Plaintiff met Listing 12.05C. See Wall, 561 F.3d at 1062; see also Clifton, 79 F.3d at 1009.
Further, Plaintiff argues the ALJ erred by not developing the administrative record by
ordering a consultative examination to ascertain Plaintiff’s current IQ. (ECF No. 13 at 16-21).
“In a social security disability case, the claimant bears the burden to prove [his] disability.”
Wall, 561 F.3d at 1062 (quoting Flaherty, 515 F.3d at 1071). An ALJ has a duty to ensure that
an adequate record is developed during the disability hearing consistent with the issues raised.
Id. at 1062-63 (internal quotation and citation omitted). An ALJ’s duty to develop the record,
however, is not unqualified. Id. at 1063. The ALJ may “reasonably rely on ‘counsel to identify
the issue or issues requiring further development.’” Id. at 1063 (citation omitted). “Specifically,
the claimant has the burden to make sure there is, in the record, evidence sufficient to suggest a
reasonable possibility that a severe impairment exists.” Id. (citation omitted).
In this matter, Plaintiff’s counsel identified that Plaintiff may meet Listing 12.05. (Tr.
96.) Specifically, in the record, Plaintiff had an IQ score in the 60s prior to his reaching age 22
and impaired intellectual functioning in adulthood. (Tr. 372, 451.) And because the ALJ found
that Plaintiff had other physical and mental impairments which imposed additional and
significant work-related limitations on his functioning (Tr. 20-23, 26-37), the ALJ then had a
duty to develop the record further to ascertain whether Plaintiff’s IQ remains in the 60s. See Lott
v. Colvin, 772 F.3d 546, 549 (8th Cir. 2014).
Defendant argues that the “ALJ considered Plaintiff’s educational records, which
included the low IQ scores, and reasonably gave no weight to this evidence because other more
recent evidence in the record indicated that Plaintiff had a greater intellectual capacity.” (ECF
12

No. 16 at 10.) The Court agrees that the ALJ considered Plaintiff’s educational records. (Tr.
34.) But the Court is unable to ascertain whether the ALJ considered Plaintiff’s IQ scores.
Nothing in the record addresses Plaintiff’s IQ scores in relation to Listing 12.05. Listing 12.05C
assumes many mildly intellectually disabled individuals will be able to work. But that is why a
disability under Listing 12.05C requires another severe impairment in addition to the intellectual
disability. Lott, 772 F.3d at 551. While it is proper for the ALJ to consider other evidence in the
record to determine whether Plaintiff’s IQ scores were valid, this case is distinguishable from
Lax because in Lax the ALJ did so in relation to whether the claimant’s intellectual disability met
or equaled a listing. Lax, 489 F.3d at 1086-88. Further, in Lax, the ALJ relied upon medical
providers’ questioning the validity of Lax’s IQ scores. Lax, 489 F.3d 1086-88. In contrast, in
this matter, the ALJ did not find that Plaintiff submitted invalid IQ scores; rather, the ALJ found
Plaintiff’s “cognitive ability” adequate and the IQ scores simply “dated.” (Tr. 34.) The ALJ
cannot substitute his medical opinion for that of a medical source. Lax, 489 F.3d at 1089;
Winfrey, 92 F.3d at 1021-22. “An ALJ cannot reject IQ scores based on personal observations of
the claimant and speculative inferences drawn from the record.” Markle v. Barnhart, 324 F.3d
182, 187 (3d Cir. 2003) (citation omitted).
Further, there is not substantial evidence in the record supporting the ALJ’s reasoning for
giving no weight to Plaintiff’s IQ scores. Evidence of the ability to perform semi-skilled work
and perform other tasks indicating intellect is an appropriate consideration to determine whether
a claimant has an intellectual disability. See Bland v. Astrue, 432 F. App’x 719, 823 (10th Cir.
2011) (unpublished). In this matter, the ALJ relied upon Plaintiff’s work history and daily
activities to determine that Plaintiff did not have an intellectual disability. (Tr. 34.) With respect
13

to Plaintiff’s work history, the second vocational expert testified that Plaintiff worked as painter9
while employed by Job Corps (Tr. 281, 351). (Tr. 95.) Plaintiff argues that this was not
substantial gainful activity as defined by 20 C.F.R. §§ 404.1510, 404.1572. (ECF No. 17 at 6.)
The Court finds merit to Plaintiff’s argument as the ALJ had an obligation to develop the issue as
to whether Plaintiff was receiving a subsidy or whether this was actual substantial gainful
employment. POMS DI 10505.025(A)(1)(b), “Special Employment Programs”, available at
https://secure.ssa.gov/poms.nsf/lnx/0410505025 (last visited Dec. 3, 2015). The Court does not
take issue with the ALJ’s finding that Plaintiff completed work of a semi-skilled nature as a
material handler10. (Tr. 34.) But the ALJ then relies upon Plaintiff’s activities of driving and
working on cars to find that Plaintiff has adequate cognitive abilities. (Tr. 34.) First, the
reference to working on cars has no other context. (Tr. 309.) The ALJ simply assumes this
“requires . . . specialized knowledge of a how an engine works.” (Tr. 26.) But the ALJ provides
no evidence that Plaintiff worked on car’s engines, or knew anything about engines. Certainly
his prior experience as a “painter” does not equate to one with knowledge of engines.. Second,
the reference to driving is not necessarily indicative of an IQ score above 70. See Muntzert v.
Astrue, 502 F. Supp. 2d 1148, 1157 (D. Kan. 2007).
IV.

CONCLUSION
Based on the foregoing, the Court:
(1)

VACATES Defendant’s denial of disability insurance benefits and supplemental

security income; and
9

The record reflects that the work performed by Plaintiff as a “painter” may actually only have consisted of sanding
and removing of unspecified parts of cars for painting. (Tr. 351, 354.) In any event, there is no evidence in the
record that Plaintiff ever worked competitively in a painter capacity outside of his Job Corps program.
10
Despite the SVP rating, the actual work performed by Plaintiff amounted to loading, unloading, and stacking bags
of potatoes.

14

(2)

REMANDS to Defendant for further proceedings as directed in this Order

pursuant to sentence four in 42 U.S.C. § 405(g).
DATED this 9th day of December, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

15