Bradley Cardew v. Comm'r of Soc. Sec.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0149p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRADLEY A. CARDEW, ┐

Plaintiff-Appellant, │

│

> No. 17-2287

v. │

│

│

COMMISSIONER OF SOCIAL SECURITY, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:16-cv-11278—Mark A. Goldsmith, District Judge.

Argued: April 26, 2018

Decided and Filed: July 23, 2018

Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Stephen Sloan, DALEY DISABILITY LAW, P.C., Chicago, Illinois, for Appellant.

Sean Santen, SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for Appellee.

ON BRIEF: Stephen Sloan, Frederick J. Daley, Jr., DALEY DISABILITY LAW, P.C.,

Chicago, Illinois, for Appellant. Sean Santen, SOCIAL SECURITY ADMINISTRATION,

Boston, Massachusetts, for Appellee.

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Bradley Cardew—a wheelchair-bound individual with

quadriplegia—landed a short-term, highly accommodated summer internship with Lear

Corporation thanks to his cousin, a vice president at Lear. But as James Agate once quipped,

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 2

“Every good deed brings its own punishment.” This aphorism surely resonated with Cardew,

though with a twist: his cousin’s good deed wrought unintended punishment on Cardew. After

the internship, an administrative law judge (ALJ) denied Cardew’s retroactive child disability

benefits solely based on the income he received while at Lear. The ALJ reasoned (and the

district court agreed) that because Cardew’s earnings over three months exceeded a “bright line”

threshold in the regulations, he had been “able to work at the substantial gainful activity level.”

But this legal framework is both incomplete and more rigid than the regulations require. Even

assuming Cardew engaged in “gainful” activity, the ALJ failed to consider all the special

conditions attendant to Cardew’s internship that could rebut the presumption, created by his

income, that he had engaged in “substantial” activity. And even assuming Cardew had exceeded

the regulatory threshold after adjusting for his special conditions, the “line” does not burn so

bright—adjusted income over the threshold only “ordinarily” shows that a claimant has engaged

in substantial gainful activity. Accordingly, we VACATE in part the district court’s judgment

and REMAND for further proceedings consistent with this opinion.

I

At age fifteen, Bradley Cardew suffered a severe spinal injury from an accident that

rendered him wheelchair-bound with C5–C6 quadriplegia. Cardew nevertheless attended

Oakland University from 1999 until he graduated in 2009, though he has lived with his parents

his entire life. In April 2012, Cardew sought assistance and filed an application for retroactive

child disability benefits, alleging that he has been continuously disabled since November 30,

1999.1 The Social Security Administration (SSA) denied his claim, finding Cardew ineligible

because he had engaged in substantial gainful work after he turned 22-years old—solely based

on a short-term, highly accommodated internship with Lear Corporation.

In the summer of 2004, Cardew’s cousin, Jason—then a vice president at Lear

Corporation—secured Cardew a position as a “finance department intern” in Lear’s Rochester,

Michigan, office. Cardew’s supervisor was a family friend who had known Jason Cardew since

childhood. For this internship, Cardew’s job primarily consisted of completing tasks delegated

1Cardew retains $70,000 of an original $200,000 insurance settlement, and those assets, he claims, make

him ineligible for Social Security Disability benefits.

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 3

to him by three or four full-time employees. These tasks included composing and updating

spreadsheets regarding client billables, reviewing bills and invoices to determine any

deficiencies, and various other forms of basic office work. Over approximately a three-month

period, Cardew earned $5,502.75.

Lear made numerous accommodations to allow Cardew to perform his work comfortably

despite his disability, including: a 30-hour work week, rather than the typical 40-hour week;

exemptions from menial tasks typically assigned interns that involved traveling, such as picking

up coffee or lunch, or attending meetings; exemptions from clerical tasks because of his

difficulty with typing; and more frequent breaks to adjust his position in his wheelchair, in order

to avoid skin ulcers and use the restroom. Lear also modified three doors to be wheelchair-

accessible at a cost to Lear of $4,000. Lear’s vice president of human resources determined that

Cardew was approximately “35% less productive” than other summer interns, though his pay

was not reduced for his lower productivity.

According to Cardew, “[t]he internship ended like it was supposed to” at the end of the

term. Cardew noted that his cousin had informally offered to have him back the following year,

but that opportunity never came to fruition because an economic downturn caused Lear to cut

back the intern program. And, in fact, Cardew was again informally approached by his cousin in

2011 about returning to work for Lear in a full-time capacity, but that opportunity also fell

through, mostly due to Cardew’s physical limitations and the demands of full-time employment.

Cardew testified at length before the ALJ and submitted documentary evidence to support

his claim for benefits. The issue before the ALJ was limited to whether any of Cardew’s

employment constituted “substantial gainful activity” under the applicable social security

regulations, thereby precluding benefits. The ALJ ultimately denied Cardew’s claim for

benefits. She found that Cardew had engaged in “substantial gainful activity” during his three-

month internship at Lear. Further, the ALJ held that Cardew had not established that his

internship was an unsuccessful work attempt, or that employer subsidies or impairment-related

work expenses reduced his earnings below the regulatory threshold. In particular, the ALJ held

that “the costs incurred by Lear in adapting the workplace to suit the claimant’s needs,” i.e., the

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 4

installation of the handicap-accessible automatic doors, “are not impairment-related work

expenses because they were not a cost paid by the claimant.”

Cardew sought review from the SSA’s Appeals Council. The Appeals Council denied his

request, finding that there was no basis to overturn the ALJ’s decision. Therefore, the ALJ’s

decision became the Commissioner’s final decision in this case. See 20 C.F.R. § 404.981.

Cardew then sued the Commissioner in the U.S. District Court for the Eastern District of

Michigan. See 42 U.S.C. § 405(g). The case was assigned to a magistrate judge for a report and

recommendation.

The magistrate judge first found that the Lear internship was substantial gainful activity

under the pertinent regulation because it was the type of work that is typically done for pay or for

profit; that the internship was not an unsuccessful work attempt since it did not end because of

the removal of any special conditions; and that, after reducing Cardew’s countable earnings by

35%, his income was still higher than the $810 minimum threshold for substantial gainful

activity in 2004. Though describing the result as “harsh,” the magistrate judge held that the ALJ

correctly excluded the $4,000 cost incurred by Lear in installing handicap-accessible doors in his

work area because substantial evidence supported the ALJ’s conclusion that it was an

impairment-related work expense borne by Lear, and not a subsidy deductible from Cardew’s

earnings. Therefore, the magistrate judge recommended that the district court affirm the ALJ’s

decision.

Cardew timely filed several objections to the magistrate judge’s report. The district court

overruled Cardew’s objections adopted the magistrate judge’s recommendation. Cardew now

appeals.

II

We generally review the ALJ’s decision under the deferential substantial-evidence

standard. Biestek v. Comm’r of Soc. Sec., 880 F.3d 778, 782–83 (6th Cir. 2017). If the ALJ’s

decision is supported by “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion,” the decision will generally stand. Richardson v. Perales, 402 U.S. 389,

401 (1971). If such evidence exists, the court should defer “even if there is substantial evidence

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 5

in the record that would have supported an opposite conclusion.” Blakley v. Comm’r of Soc.

Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). But we review legal questions de novo, including whether the ALJ applied the

appropriate legal standard. See id. at 407; Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th

Cir. 2007). That is, “if the ALJ commits an error of law, the court must reverse and remand,

‘even if the factual determinations are otherwise supported by substantial evidence and the

outcome on remand is unlikely to be different.’” Reynolds v. Comm’r of Soc. Sec., 424 F. App’x

411, 414 (6th Cir. 2011) (quoting Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 859 (6th

Cir. 2011)); see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545–46 (6th Cir. 2004).

III

In this case, Cardew has applied for child disability benefits retroactive to age fifteen,

when an accident rendered him with quadriplegia. Because he filed for benefits after his

eighteenth birthday, he must prove that he has lived with a continuous disability since the

accident. See Zharn v. Comm’r of Soc. Sec., 35 F. App’x 225, 227 (6th Cir. 2002). Proof that

Cardew has engaged in “substantial gainful activity” at any point during the relevant time period

would demonstrate that his disability has not been continuous, at least for the purposes of

retroactive child disability benefits. See Futernick v. Richardson, 484 F.2d 647, 648 (6th Cir.

1973). The regulations regarding “substantial gainful activity” span several sections. We first

examine the section in its context and then explain why a limited remand is appropriate in this

case.

A

For purposes of retroactive child disability benefits, the Commissioner looks to whether

the record reflects that a claimant has been “able to work at the substantial gainful activity level.”

20 C.F.R. § 404.1571. “Substantial gainful activity is work activity that is both substantial and

gainful.” Id. § 404.1572. “Substantial work activity is work activity that involves doing

significant physical or mental activities.” Id. § 404.1572(a). “Gainful work activity is work

activity that you do for pay or profit.” Id. § 404.1572(b).

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 6

As a “general” matter, the Commissioner looks to five factors to determine whether a

claimant has the ability to work at the substantial gainful activity level: (1) the nature of the

claimant’s work; (2) how well the claimant performs; (3) whether the claimant’s work is done

under special conditions; (4) whether the claimant is self-employed; and (5) time the claimant

spent in work. Id. §§ 404.1573(a)–(e).

Relevant to this case, if the claimant “is unable, because of [his] impairments, to do

ordinary or simple tasks satisfactorily without more supervision or assistance than is usually

given other people doing similar work, this may show that [he is] not working at the substantial

gainful activity level.” Id. § 404.1573(b). Moreover, if the claimant’s “work is done under

special conditions, [the Commissioner] may find that it does not show that [the claimant] has the

ability to do substantial gainful activity.” Id. § 404.1573(c).2 “Examples of the special

conditions that may relate to [an] impairment include, but are not limited to, situations in which

[the claimant]”:

(1) “required and received special assistance from other employees in performing

[his] work”;

(2) “w[as] allowed to work irregular hours or take frequent rest periods”;

(3) “w[as] provided with special equipment or w[as] assigned work especially

suited to [his] impairment”;

(4) “w[as] able to work only because of specially arranged circumstances, for

example, other persons helped [him] prepare for or get to and from [his]

work”;

(5) “w[as] permitted to work at a lower standard of productivity or efficiency than

other employees”; or

(6) “w[as] given the opportunity to work despite [his] impairment because of

family relationship, past association with [his] employer, or [his] employer’s

concern for [his] welfare.”

Id.

Separately, § 1574 provides “several guides” to determine whether the claimant is “able

to do substantial gainful activity.” An overarching consideration in determining whether a

2To be sure, this section also states that “work done under special conditions may show” that a claimant has

“the necessary skills and ability to work at the substantial gainful activity level.” Id.

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 7

claimant has engaged in substantial gainful activity is the amount of compensation he earned.

The relevant regulation states: “Generally, in evaluating your work activity for substantial

gainful activity purposes, our primary consideration will be the earnings you derive from the

work activity. . . . Generally, if you worked for substantial earnings, we will find that you are

able to do substantial gainful activity.” Id. § 404.1574(a)(1). The regulations likewise set

income thresholds that establish compensation floors. See id. § 404.1574(b).

Even so, we emphasize that “[t]he mere existence of earnings over the statutory minimum

is not dispositive.” Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990); see, e.g., Chicager v.

Califano, 574 F.2d 161, 164 (3d Cir. 1978) (finding that a claimant had rebutted the income

presumption under a former version of the regulation). Instead, when a claimant earns income

above the floor, a presumption arises that he or she has engaged in substantial gainful activity.

See Keyes, 894 F.2d at 1056; Chicager, 574 F.2d at 164. “The claimant may rebut a presumption

based on earnings with evidence of his inability . . . to perform the job well [or] without special

assistance,” Keyes, 894 F.2d at 1056, among other considerations and special conditions, see

20 C.F.R. § 404.1573(b)–(c); see also id. § 404.1574(a)(2).

A claimant may rebut the “presumption” based on gross earnings in two ways. First, the

regulations provide a framework to subtract subsidized earnings and impairment-related work

expenses from gross earnings. See id. §§ 404.1574, 1576. Adjusting for subsidized earnings

based on special conditions attendant to the claimant’s position is particularly appropriate where

special conditions are easily quantified. “For example, when a person with a serious impairment

does simple tasks under close and continuous supervision, our determination of whether that

person has done substantial gainful activity will not be based only on the amount of the wages

paid.” Id. § 1574(a)(2). Rather, “[w]e will first determine whether the person received a

subsidy; that is, we will determine whether the person was being paid more than the reasonable

value of the actual services performed.” Id. “We will then subtract the value of the subsidy from

the person’s gross earnings to determine the earnings we will use to determine if he or she has

done substantial gainful activity.” Id.

Still, the subsidy and work-related expense framework does not provide the sole rubric to

evaluate disability claims. If that were so, then how could an ALJ, for example, consider

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 8

whether a claimant secured a paid position solely “because of family relationship”? See id.

§ 404.1573(c). This and other “examples of special conditions” seem difficult, if not impossible,

to quantify in a subsidy analysis. Moreover, the special conditions in § 1573(c) are not factors

but rather non-exclusive “examples” that can show the claimant does not have the ability to do

substantial gainful activity. Id. At bottom, the regulations focus on a person’s ability to engage

in substantial employment. Income alone does not always capture a person’s ability to engage in

substantial activity, and the regulations give no indication that the factors in § 1573 only apply to

the subsidy framework in § 1574(a).3

Second, therefore, the presumption may be rebutted in a rare case where a claimant’s

adjusted income does not demonstrate that he has the “ability to engage in substantial . . .

activity,” or “work activity that involves doing significant physical or mental activities.” Id.

§ 404.1572(a); see id. § 404.1573(b); id. § 404.1574(b)(2) (delineating “[e]arnings that will

ordinarily show that you have engaged in substantial gainful activity”). The presumption may

be rebutted based on the claimant’s performance, id. § 404.1573(b), or the special conditions

attached to his work, id. § 404.1573(c), where the subsidy and impairment-related work expense

framework does not adequately account for these factors. See Boyes v. Sec’y of Health & Human

Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing 20 C.F.R. § 404.1573(b)–(c)) (reversing and

awarding benefits because “[a]ny presumption that the work constituted substantial gainful

activity created by the level of money [he] earned is destroyed” given his performance and “the

special conditions under which he performed his work”).

To be sure, it remains possible that even work done under special conditions may show

that a claimant has “the necessary skills and ability to work at the substantial gainful activity

level.” 20 C.F.R. § 404.1573(c). Moreover, even earnings that “were not substantial will not

necessarily show” that the claimant is “not able to do substantial gainful activity.” Id.

3Because only § 1574(c) expressly references the special conditions in § 1573(c), one could argue that the

“special conditions” are relevant to analyze solely whether one has had “an unsuccessful work attempt.” But that is

unpersuasive for two reasons. First, although the removal of special conditions can evidence an “unsuccessful work

attempt,” id. § 1574(c)(2), the existence of special conditions can show an inability “to do substantial gainful

activity,” see id. § 1573(c), in the first place. Second, the subsidy framework in § 1574(a) contemplates adjustments

for certain special conditions and an example there dovetails with at least one special-condition example in

§ 1573(c). However, as we will explain, this does not mean that an ALJ should only use the subsidy framework to

account for special conditions in every case, let alone only one or a few special conditions.

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 9

§ 404.1574(a). Whether the claimant’s work history demonstrates his ability to engage in

substantial gainful activity requires a holistic analysis of a variety of factors, see id. § 404.1573,

guided but not dictated solely by income in all cases, see id. § 404.1574, and tailored to the

medical and vocational evidence in an individual claimant’s case, see id. § 404.1571.

B

We are convinced that a limited remand is appropriate for further consideration under

both rebuttal avenues given the unique circumstances in this case.

First, the ALJ failed to consider all examples of special conditions implicated in

Cardew’s case in assessing whether Cardew could rebut the presumption his income created in

the subsidy framework. A deeper dive into the ALJ’s decision illustrates how this came to pass.

Prior to Cardew’s hearing before the ALJ, Lear received a “work activity questionnaire” that was

designed to obtain “information about subsidy.” The questionnaire posed six questions:

1. Does the employee complete all the usual duties required for his/her

position?

2. Is the employee able to complete all of the job duties without special

assistance?

3. Does the employee regularly report for work as scheduled?

4. On average, does the employee complete his/her work in the same amount

of time as employees in similar positions?

5. Please indicate the type(s) of special assistance, if any, the employee

receives on the job that is not regularly given to other employees.

6. Based on the information above, approximately how would you rate the

productivity of the employee compared to other employees in similar

positions and similar pay rates?

Responding to the final question, Lear’s representative estimated that five factors “combined”—

“reduced work hours, arrangement of work locations closer to the claimant’s home, inability to

travel to meetings, inability to do certain clerical functions, and need for frequent breaks”—

“placed Mr. Cardew at approximately 35% less productive than other Summer interns.”

We note that these questions do not directly mirror the “examples of special conditions”

listed in § 1573(c), all of which exist in Cardew’s case. And the overarching question only

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 10

directly relates to one of the six “examples of special conditions” listed in § 1573(c)—“You were

permitted to work at a lower standard of productivity or efficiency than other employees,” id.

§ 404.1573(c)(5)—though it arguably incorporates three others, id. §§ 404.1573(c)(1)–(3). Even

so, and solely based on this questionnaire,4 the ALJ determined that Cardew “received a [35%]

subsidy,” see id. § 404.1574(a)(2), “subtract[ed] the value of the subsidy from [his] gross

earnings to determine [adjusted] earnings,” see id., and concluded that Cardew’s earnings

exceeded the threshold, see id. § 404.1574(b)(1).

Notably, however, neither Lear nor the ALJ considered (a) whether Cardew “was

provided with special equipment,” (b) whether “other persons helped [Cardew] prepare for or get

to and from [his] work,” and (c) whether Cardew “w[as] given the opportunity to work despite

[his] impairment because of family relationship.” See id. In addition, Lear submitted a separate

questionnaire, one that the ALJ apparently never considered. The very first question asked:

“Was Bradley Cardew granted the opportunity to work, despite his handicap, because of a family

relationship, past association with the company, or other altruistic reasons?” The Vice President

of Human Resources at Lear responded: “Yes, Mr. Cardew was referred by a key Lear

employee.” Indeed, this questionnaire reflected that Cardew satisfied every “example of a

special condition” under § 1573(c). Yet, the ALJ did not reference this questionnaire, nor in

particular the fact that Cardew received the job because of his family relationship.5

While substantial evidence could arguably otherwise support the ALJ’s calculation, the

ALJ failed to analyze all the “special conditions” listed in § 1573(c) before or after engaging in a

subsidy analysis under § 1574. She purported to account for certain “special conditions” in her

quantitative subsidy analysis—arriving at a 65% productivity estimate—but not, as the

4An employer under these circumstances could be hesitant to candidly discount a disabled intern’s capacity

or abilities, particularly where a well-placed family member works at the company. One can imagine an HR

representative being reluctant to assert, for example, that Cardew was only half as productive (or even less so) as his

peers. Thus, we question whether an ALJ should merely adopt wholesale an employer’s estimation without

performing an independent assessment.

5Anothernoteworthy statement contained in that separate questionnaire noted: “The position Mr. Cardew

held was designed specifically for him and within his capabilities.” This calls into question the very premise of

comparing Cardew to other interns.

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 11

regulations seem to require in the preceding section, other considerations or examples of special

conditions. See id. §§ 404.1573(b)–(c).

Second, even assuming the ALJ had considered all examples of special conditions

present in Cardew’s case, the ALJ erroneously treated Cardew’s adjusted income as

“dispositive.” The ALJ construed the income threshold as a “bright line test” that, in the her

view, left Cardew “technically ineligible for child disability benefits.”

But in this vein, the regulations repeatedly use the terms “may,” “generally,” and

“ordinarily” where discussing earnings. See, e.g., id. § 404.1574(a)(1) (“Your earnings may

show you have done substantial gainful activity. Generally, in evaluating your work . . . our

primary consideration will be the earnings you derive from the work activity . . . . Generally, if

you worked for substantial earnings, we will find you are able to do substantial gainful activity.”

(emphasis added)); id. § 404.1574(b)(2) (delineating “earnings that will ordinarily show that you

have engaged in substantial gainful activity” (emphasis added)). This flexible language confirms

that exceptions to the general rule exist. See Koss v. Schweiker, 582 F. Supp. 518, 521 (S.D.N.Y.

1984) (“The word ‘ordinarily’ implies that there can be exceptions and therefore the income

levels of § 404.1574(b)(2) are intended to create only a rebuttable presumption of ability to

engage in substantial gainful activity.”).

The Sixth Circuit has held as much in a similar context. In Boyes, the court wrote:

We have carefully reviewed the record and find that Boyes’ past relevant work

did not constitute substantial gainful activity given the special conditions under

which he performed his work. Any presumption that the work constituted

substantial gainful activity created by the level of money Boyes earned is

destroyed by the amount of work Boyes completed on a daily basis, the quality of

his work and the level of supervision he required.

46 F.3d at 512. The court reasoned that income could not have demonstrated Boyes’ ability to

engage in “substantial work activity,” particularly since his impairments “prevent[ed] him from

doing ‘ordinary or simple tasks satisfactorily without more supervision or assistance than is

usually given other people doing similar work.’” Id. (quoting 20 C.F.R. § 404.1573(b)).

Allowing for exceptions makes sense. In the rare case, even income adjusted in a subsidy

analysis may not capture whether an individual is “able to work at the substantial . . . activity

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 12

level,” 20 C.F.R. § 404.1571, or has the ability to “do[] significant physical or mental activities,”

id. § 404.1572(a).

A hypothetical proves this point. Suppose an individual with profound disabilities

secured a short-term “internship” with a wealthy uncle’s company. He was generously

compensated $15,000 for a three-month internship—the same pay that all summer interns

received. Because of his impairments, he shared all examples of special conditions listed in the

regulations—that is, he required special assistance, worked irregular hours, used special

equipment, relied on his parents for transportation, worked at a much lower standard of

productivity, and received the internship in the first place because of his relationship with his

uncle. See id. § 404.1573(c). As it turns out, this individual was only 20% as productive as

other interns. In fact, the nephew was “unable, because of [his] impairments to do ordinary or

simple tasks satisfactorily without more supervision or assistance than is usually given other

people doing similar work.” Id. § 404.1573(b). This could certainly “show that [he was] not

working at the substantial gainful activity level.” Id. But under the ALJ’s “bright line” approach

in this case, the claimant would still “have the ability to work at the substantial gainful activity

level” because 20% of his compensation over three months, or $3,000, easily eclipses the income

threshold.

This income may be generous, but it would not necessarily “show [he is] able to do

substantial . . . activity.” Id. § 404.1574 (emphasis added). The regulations are primarily

concerned with “ability.” See id. § 404.1571. While income is an overarching consideration and

a “guide,” it is still only used “to decide whether the work you have done shows that you are able

to do substantial gainful activity.” Id. § 404.1574(a) (emphasis added). That someone has a

relative who empowers him to engage in “gainful work activity” for a short time does not

necessarily mean that he has the ability to “work at the substantial activity level,” or do “work

activity that involves doing significant physical or mental activities,” in the labor market. See id.

§ 404.1572 (defining “substantial gainful activity [a]s work activity that is both substantial and

gainful”).

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 13

*****

While the ALJ in this case used an incomplete and overly rigid legal framework, we need

not decide whether Cardew can rebut the presumption that his gross earnings created under either

avenue. Rather, we think a limited remand is appropriate for the ALJ to reevaluate Cardew’s

circumstances under the correct legal framework in the first instance. See Reynolds, 424 F.

App’x at 414 (citing Kalmbach, 409 F. App’x at 859).

C

Although we have already found that a limited remand is necessary, we briefly address

Cardew’s remaining arguments, each of which lacks merit.

Cardew cogently argues that all special conditions exemplified in the regulations

pertained to his internship, see 20 C.F.R. § 404.1573, supra Part III.B. But he goes one step

further and asserts that these conditions were “removed due to the cessation of the internship,”

and that the removal of these conditions therefore evidenced an unsuccessful work attempt under

20 C.F.R. § 404.1574(c). This argument misses the mark. As the ALJ found and the district

court affirmed, Cardew’s internship ended as all Lear internships end—at the end of their set

terms. Cardew’s internship did not end “because of [his] impairment or because of the removal

of special conditions.” Id. § 404.1574(c)(3).

Cardew also argues that Lear’s summer internships generally do not qualify as the “kind

of work activity usually done for pay or profit,” Id. § 404.1572(b). He points to evidence in the

record establishing that Lear expects less from interns than regular, full-time employees, and that

internships are not “held to a competitive standard.” But “the replace-some-words canon of

construction has never caught on in the courts.” United States v. Perkins, 887 F.3d 272, 276 (6th

Cir. 2018). Nothing in the regulations categorically excludes paid internships from constituting

substantial gainful work activity. Nor does the work that the average Lear interns were assigned

come close to the classes of work generally excluded from substantial gainful activity. See, e.g.,

20 C.F.R. § 404.1572(c) (“Generally, we do not consider activities like taking care of yourself,

household tasks, hobbies, therapy, school attendance, club activities, or social programs to be

substantial gainful activity.”). The ALJ’s finding that Lear’s paid internship could generally

No. 17-2287 Cardew v. Comm’r of Soc. Sec. Page 14

qualify as “substantial gainful activity” is supported by substantial evidence, though we reiterate

that Cardew’s special conditions and circumstances warrant further examination on remand.

Finally, Cardew argues that “the ALJ failed to properly address the installation of $4,000

handicap-accessible doors installed by Lear.” In his view, the doors were improperly considered

an impairment-related expense, and the ALJ should have instead considered the cost of the doors

in her subsidy analysis. This argument also fails. The regulations clearly provide that an

impairment-related work expense is only deductible in the subsidy framework where a claimant

“pay[s] the cost of the item or service.” Id. § 404.1576(b)(3). Indeed, “[n]o deduction will be

allowed to the extent that payment has been or will be made by another source.” Id. Lear, not

Cardew, paid for the doors. True, § 1573(c) explains that where an employer provides the

claimant “with special equipment,” that can exemplify a “special condition.” But modifications

to a building’s structure, such as an automatic door, better fits with an “impairment-related

expense” that benefits all, not “special equipment” provided only to Cardew. And since

§ 1576(b)(3) squarely precludes impairment-related expenses borne by the employer from being

considered in the subsidy framework, we reject Cardew’s interpretation here.

Therefore, we affirm the district court’s judgment in these other respects.

IV

For the foregoing reasons, we AFFIRM in part and VACATE in part the district court’s

judgment and REMAND for further proceedings. The district court shall instruct the

Commissioner to reevaluate Cardew’s claim for benefits in a manner consistent with this

opinion, pursuant to sentence four of 42 U.S.C. § 405(g).