Curry v. Social Security Administration

Filing 23

ORDER by Magistrate Judge Laura Fashing denying 16 Motion to Remand to Agency (LF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TRACY MELISSA CURRY,
Plaintiff,
v.

1:15-cv-00601-LF

NANCY A. BERRYHILL, 1
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM ORDER AND OPINION
THIS MATTER comes before the Court on plaintiff Tracy Curry’s Motion to Reverse
and Remand for Rehearing (Doc. 16), which was fully briefed June 9, 2016 (Docs. 20, 21, 22).
The parties consented to my entering final judgment in this case. Docs. 6, 8. Having
meticulously reviewed the entire record and being fully advised in the premises, I find that Ms.
Curry’s motion to reverse and remand is not well-taken, and it will be DENIED.
I.

Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final

decision 2 is supported by substantial evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
the Commissioner’s findings and the correct legal standards were applied, the Commissioner’s
decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116,
1

Nancy A. Berryhill, the new Acting Commissioner of Social Security, is automatically
substituted for her predecessor, Acting Commissioner Carolyn W. Colvin, as the defendant in
this suit. FED. R. CIV. P. 25(d).
2

The Court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which
generally is the ALJ’s decision, 20 C.F.R. §§ 404.981, 416.1481, as it is in this case.

1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this 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) (internal
quotation marks and brackets omitted). The Court must meticulously review the entire record,
but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of
drawing two inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.’” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

Applicable Law and Sequential Evaluation Process
To qualify for disability benefits, a claimant must establish that he or she is unable “to

engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);
20 C.F.R. §§ 404.1505(a), 416.905(a).
When considering a disability application, the Commissioner is required to use a fivestep sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S.
2

137, 140 (1987). At the first four steps of the evaluation process, the claimant must show:
(1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant has a “severe
medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is

expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the
Listings 3 of presumptively disabling impairments; or (4) the claimant is unable to perform his or
her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i–iv), 416.920(a)(4)(i–iv); Grogan, 399
F.3d at 1260–61. If the claimant cannot show that his or her impairment meets or equals a
Listing but proves that he or she is unable to perform his or her “past relevant work,” the burden
of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform
other work in the national economy, considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Id.
III.

Background and Procedural History
Ms. Curry was born on June 15, 1965, completed two years of college, and has past

relevant work as a bus driver, bus cleaner, car rental clerk, inventory clerk, hardware clerk, and
assistant manager. AR 137, 162, 830. 4 On November 21, 2006, Ms. Curry suffered a stroke.
AR 686.
Ms. Curry filed an application for disability insurance benefits (“DIB”) on October 23,
2009—alleging disability since November 6, 2006 due to a stroke, memory problems, left side
paralysis, and high blood pressure. AR 137–40, 161. Ms. Curry was insured for disability

3

20 C.F.R. pt. 404, subpt. P, app. 1.

4

Documents 12-1 through 12-46 comprise the sealed Administrative Record (“AR”). When
citing to the record, the Court cites to the AR’s internal pagination in the lower right-hand corner
of each page, rather than the CM/ECF document number and page.
3

benefits through March 31, 2008. 5 AR 141, 775. On January 23, 2009, while her claim was
pending, Ms. Curry suffered a second stroke. AR 323–33. The Social Security Administration
(“SSA”) denied her claims initially on January 19, 2010. AR 83–86. The SSA denied her claims
on reconsideration on July 7, 2010. AR 93–95. Ms. Curry requested a hearing before an
Administrative Law Judge (“ALJ”). AR 96–97. On June 9, 2011, ALJ Barry Robinson held a
hearing. AR 28–79. ALJ Robinson issued an unfavorable decision on February 22, 2012. AR
11–25. Ms. Curry requested review by the Appeals Council, which denied her request. AR 3–7,
9–10. Ms. Curry submitted additional evidence, but, on September 21, 2012, the Appeals
Council declined to reopen or change the decision. AR 1–2. Ms. Curry filed her first appeal to
this Court on October 18, 2012. See Curry v. Social Security Administration, No. 12-cv-1074
WJ/SMV, Doc. 1 (D.N.M. Oct. 18, 2012). On April 22, 2013, while her first appeal was
pending, Ms. Curry filed a subsequent application for supplemental security income (“SSI”). AR
1021–29. On November 1, 2013, the Honorable District Judge William P. Johnson remanded
Ms. Curry’s case based on two errors: (1) the ALJ’s failure to conduct a proper function-byfunction analysis and (2) the ALJ’s failure to explore the physical and mental demands of Ms.
Curry’s past relevant work. Curry, No. 12-cv-1074 WJ/SMV, Doc. 24 at 4–9.
On remand, the Appeals Council remanded the case to an ALJ for a new hearing. AR
883–86. ALJ Ann Farris held a hearing on February 10, 2015. AR 802–39. At the hearing, Ms.
Curry agreed to consolidate her subsequent application for SSI with her remanded case for DIB.
AR 773, 804–05. ALJ Farris issued her partially favorable decision on March 13, 2015. AR
769–801.
5

To qualify for disability benefits, Ms. Curry had to show that she was disabled before March
31, 2008, her date last insured (DLI). However, if qualified, she only would be entitled to
retroactive benefits beginning on October 2, 2008, or for the twelve-month period immediately
preceding her October 23, 2009 application for benefits. See SSR 83-20, 1983 WL 31249, at *1.
4

The ALJ found that Ms. Curry was insured for DIB through March 31, 2008. AR 777.
At step one, the ALJ found that Ms. Curry had not engaged in substantial, gainful activity since
November 6, 2006. Id. Because Ms. Curry had not engaged in substantial gainful activity for at
least twelve months, the ALJ proceeded to step two. AR 777–79. At step two, the ALJ found
that Ms. Curry suffered from the following severe impairments since November 6, 2006: status
post cerebral vascular accident with residual left-hand weakness and hypertension, AR 777–78,
and the following severe impairments since January 23, 2009: status post two cerebral vascular
accidents with no functional use of her left arm and left leg weakness, hypertension, and a mental
impairment “variously diagnosed to include schizophrenia, anxiety, PTSD, and a cognitive
disorder,” AR 778. At step three, the ALJ found that none of Ms. Curry’s impairments, alone or
in combination, met or medically equaled a Listing. AR 779. Because the ALJ found that none
of the impairments met a Listing, the ALJ assessed Ms. Curry’s RFC—both before and after
January 23, 2009. AR 779–82, 782–88. The ALJ found that, prior to January 23, 2009, Ms.
Curry had the RFC to “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that she was limited to occasional handling and fingering with her left upper extremity.”
AR 779. The ALJ found that, after January 23, 2009, Ms. Curry had the RFC “to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she has no functional use of
her left arm. She also would be limited to simple and unskilled work.” AR 782.
At step four, the ALJ concluded that Ms. Curry was unable to perform any of her past
relevant work. AR 789. At step five, relying on the testimony of a vocational expert (“VE”), the
ALJ found that, prior to January 23, 2009, Ms. Curry was not disabled, concluding that she still
could perform jobs that exist in significant numbers in the national economy such as school bus
monitor, bakery worker, and counter clerk. AR 789–90. She further found that, after January

5

23, 2009, Ms. Curry was disabled, as there were no jobs that exist in significant numbers in the
national economy that she could perform. AR 790–91. Because this Court previously remanded
Ms. Curry’s case, Ms. Curry was not required to seek Appeals Council review again, and the
ALJ’s decision stands as the final decision of the Commissioner. See 20 C.F.R. § 404.984(a).
Ms. Curry timely appealed to this Court on July 10, 2015. 6 Doc. 1.
IV.

Ms. Curry’s Claims
Ms. Curry raises several arguments for reversing and remanding this case: (1) the ALJ

failed to follow and apply SSR 83-20; (2) the ALJ failed to do a function-by-function assessment
as required by SSR 96-8p; (3) the ALJ’s step five findings are not supported by substantial
evidence; and (4) the ALJ committed legal error at step five by applying the “Grids.” Doc. 16 at
2. For the reasons discussed below, none of these claims merits remand.
VI.

Analysis
A. The ALJ did not err by failing to follow and apply SSR 83-20; the ALJ was
not required to consult a medical advisor.
Ms. Curry argues that the ALJ erred by not following SSR 83-20 in determining the onset

date of her “post 2006 cerebral vascular accident with residuals and late effects, schizophrenia,
and cognitive disorder, which are impairments of non-traumatic origin.” Doc. 16 at 11–12. She
says that she has a “slowly progressive impairment” where the “onset date must be inferred”—
thereby requiring the ALJ to call on the services of a medical advisor. Id. at 12. 7 I disagree.

6

If the claimant does not file exceptions and the Appeals Council does not assume jurisdiction of
the case, the ALJ’s decision becomes final 61 days after it is issued. 20 C.F.R. § 404.984 (b)–
(d); AR 385. The claimant then has 60 days to file an appeal to this Court. 20 C.F.R. § 404.981.
7

The Commissioner erroneously argues that SSR 83-20 “does not apply” to Ms. Curry’s case.
Doc. 20 at 5. SSR 83-20, however, outlines the relevant evidence an ALJ must consider in
determining the onset date for both traumatic and nontraumatic impairments.

6

An ALJ must determine whether a claimant is disabled, as well as an onset date of
disability. SSR 83-20, 1983 WL 31249, at *1. SSR 83-20 establishes guidelines for determining
the onset of disability dates in DIB and SSI 8 cases, and it
sets forth an analytical framework for assessing the date of onset for a disability
of traumatic or non-traumatic origin. It provides that a disability is of “traumatic
origin,” where after the date of injury, “the individual is thereafter expected to die
as a result or expected to be unable to engage in substantial gainful activity (SGA)
(or gainful activity) for a continuous period of at least 12 months.” SSR 83-20, at
2. Where a disability is of traumatic origin, the date of onset is the date of the
traumatic injury. Id.
Additionally, SSR 83-20 provides a framework for examining injuries that
are not considered of “traumatic origin” under the regulation. SSR 83-20 states
that “[i]n disabilities of nontraumatic origin, the determination of onset involves
consideration of the applicant’s allegations, work history, if any, and the medical
and other evidence concerning impairment severity.” Id. The date alleged by the
claimant is the starting point for determining disability onset, and the date the
claimant stopped working is also of significance in selecting the onset date. Id.
Medical evidence, however, is the “primary element” for the onset determination,
as the onset date “can never be inconsistent with the medical evidence of record.”
Id. at 2–3.
SSR 83-20 also provides that, when medical evidence does not establish
the precise onset date, the ALJ may have to “infer the onset date from the medical
and other evidence that describe the history and symptomatology of the disease
process.” Id. at 2. The regulation provides two examples of situations where it
may be necessary to infer an onset date: (1) in the case of a slowly progressing
impairment, “when, for example, the alleged onset and the date last worked are
far in the past and adequate medical records are not available,” and (2) when
“onset of a disabling impairment(s) occurred some time prior to the date of the
first recorded medical examination.” Id. at 3. “At the hearing, the [ALJ] should
call on the services of a medical advisor when onset must be inferred.” Id.
Blea v. Barnhart, 466 F.3d 903, 909–10 (10th Cir. 2006).
“[A] medical advisor need be called only if the medical evidence of onset is ambiguous.”
Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995) (internal citation and quotation omitted). If a
disability is of traumatic origin, the onset date will be self-evident, and there is no need for the
ALJ to consult a medical advisor. Blea, 466 F.3d at 910. In addition,
8

SSR 83-20 acknowledges that determination of a specific date of onset is not typically
necessary in a Title XVI (SSI) case. SSR 83-20, 1983 WL 31249, at *7.
7

whether a medical advisor is required under SSR 83-20 does not turn on whether
the ALJ could reasonably have determined that [the claimant] was not disabled
before [her last insured date]. Rather, when there is no contemporaneous medical
documentation, we ask whether the evidence is ambiguous regarding the
possibility that the onset of her disability occurred before the expiration of her
insured status. If the medical evidence is ambiguous and a retroactive inference is
necessary, SSR 83-20 requires the ALJ to call upon the services of a medical
advisor to insure that the determination of onset is based upon a “legitimate
medical basis.”
Id. at 911 (quoting Grebenick v. Chater, 121 F.3d 1193, 1200–01 (8th Cir. 1997)).
In this case, the ALJ was not required to consult a medical advisor because the onset date
was not ambiguous. Ms. Curry’s 2006 stroke is an injury of nontraumatic origin. 9 As such, in
determining an onset date for disability, the ALJ was required to consider “the applicant's
allegations, work history, if any, and the medical and other evidence concerning impairment
severity.” Blea, 466 F.3d at 909. The ALJ thoroughly discussed all of these factors in her step
two and RFC findings. See AR 777–82. Other than asserting that the ALJ did not conduct an
adequate function-by-function analysis—an argument the Court does not find persuasive, see
discussion in section B, infra—Ms. Curry does not challenge any of the ALJ’s step two or RFC
findings. The ALJ thoroughly examined Ms. Curry’s limitations after her first stroke, and
supported her RFC finding that she could perform light work, with the additional limitation to
occasional handling and fingering, with substantial evidence. See discussion in section B, infra.
Ms. Curry’s unsupported allegations that the onset date was ambiguous and that her 2006 stroke
was a slowly progressive impairment are without merit. The Court finds no error in the ALJ’s
decision not to consult a medical advisor about this impairment.

9

Blea states that “a disability is of ‘traumatic origin,’” only where, after the date of injury, “the
individual is thereafter expected to die as a result or expected to be unable to engage in
substantial gainful activity (SGA) (or gainful activity) for a continuous period of at least 12
months.” 466 F.3d at 909. Ms. Curry’s 2006 stroke does not meet these requirements.
8

Ms. Curry’s only support for her claim that the record is ambiguous and that the ALJ was
therefore required to consult a medical advisor is that “there is . . . a question about what
triggered Ms. Curry’s second stroke,” and that “[h]er severe problems did not develop
overnight.” Doc 16 at 14. The medical evidence Ms. Curry offers, however, does not support
this assertion. See id. Ms. Curry argues that the fact that Dr. Craig Jensen, a doctor treating her
after her January 23, 2009 stroke, found that she had “acute renal failure, an acute
cerebrovascular accident, anemia and profound hyponatremia,” and that “the etiologies of her
such severe decompensation [were] unclear” creates an ambiguity in the medical record about
whether she was disabled by her 2006 stroke, and whether she was disabled before March 31,
2008, her date last insured. Doc. 16 at 14. I disagree.
Ms. Curry repeatedly characterizes her 2006 stroke as a “cerebrovascular accident with
residuals and late effects.” E.g., Doc. 16 at 11. But she cites no medical or other evidence to
support her assertion that she got progressively worse after her first stroke. As the
Commissioner argues, “[Ms. Curry] appears to suggest in her brief that her stroke residuals were
‘slowly progressive,’ but the record simply fails to support such a suggestion.” Doc. 20 at 5.
Instead of showing a “slowly progressing impairment,” the record evidence shows that Ms.
Curry’s symptoms gradually improved after her first stroke. See AR 227 (2009 Progress Note
Report stating, “Individual had a previous CVA [“cerebrovascular accident”] in 2006 which
involved slurred speech, dysarthria and some weakness to her lower extremities. She gradually
improved and gained complete control of her functions following that CVA.”).
Ms. Curry also argues that “the medical evidence regarding the onset of Ms. Curry’s
schizophrenia, and cognitive disorder is ambiguous and there is a dearth of medical information
regarding its progress.” Doc. 16 at 12. The Commissioner argues that Ms. Curry’s mental

9

impairments/schizophrenia was not a slowly progressive impairment which required the ALJ to
infer a disability onset date. Doc. 20 at 6. 10 I agree with the Commissioner.
Ms. Curry admits that she did not receive psychological care during the relevant time
period (between November 2006, the date of alleged onset, and March 31, 2008, the date last
insured). She argues, however, that, because there are medical records from before and after this
period, the ALJ was required to consult a medical advisor to determine the onset date of
disability from these impairments. Doc. 16 at 12–14. In support of her argument, Ms. Curry
states that she has a history of delusions between 1997 and 2000. Id. at 12–13. She also cites the
mental health treatment she received in 2010. Id. at 13.
The ALJ thoroughly analyzed her reasons for concluding that Ms. Curry did not have a
severe mental impairment prior to January 23, 2009. See AR 778–79. The record shows that the
ALJ considered all of the medical records about Ms. Curry’s treatment for mental impairments.
AR 778. The ALJ also reviewed the paragraph B criteria for evaluating mental disorders:
activities of daily living, social functioning, concentration/persistence/pace, and episodes of
decompensation. AR 778–79. The ALJ concluded that “the record does not contain any
treatment notes, diagnosis, or complaints to establish any limitations due to these conditions
between November 2006 and March 2008.” AR 778. The ALJ acknowledged that Ms. Curry
stated that she could not afford care during this time, but she also found that Ms. Curry did not
“require any psychiatric emergency care and was able to work above substantial gainful levels
after April 2000.” Id. The ALJ also noted that Ms. Curry’s mental health treatment was many
10

The Commissioner also argues that “[t]he ALJ did not find Plaintiff disabled in January 2009
due to mental impairments . . . .” Doc. 20 at 6. While the ALJ did state that Ms. Curry’s
“physical limitations alone resulted in a finding of disability,” AR 791, the Court notes that the
ALJ also found that, after January 23, 2009, Ms. Curry had a severe “mental impairment
variously diagnosed to include schizophrenia, anxiety, PTSD, and a cognitive disorder.” AR
778.
10

years after her alleged onset date, and that the treatment notes “indicate on several occasions that
the claimant sought mental health treatment at her attorney’s request.” Id. The ALJ further
noted that “the lack of treatment between 2006 and March 2008 suggests that these conditions
did not impair her ability to work at that time.” Id. Ms. Curry does not specifically challenge
any of the ALJ’s reasons for concluding that she did not have a severe mental impairment prior
to January 23, 2009. Instead, Ms. Curry merely cites several mental health treatment notes from
treatment she received well after her date last insured, and even after the date the ALJ found she
was disabled. These citations do not support her argument that the date of disability onset for her
mental health impairments is ambiguous.
First, Ms. Curry cites a March 8, 2010 visit to the UNM Psychiatric Center. Doc. 16 at
13 n.9. The treatment note shows that Ms. Curry sought mental health care after her second
stroke (in 2009) because of “a dramatic decline in feelings of worthiness” after her second
stroke, due to limited abilities to cook for herself and do things she had done in the past. AR
616. There is nothing in this medical record to indicate that Ms. Curry was disabled by a mental
impairment during the relevant time period—November 2006 to March 31, 2008. Second, Ms.
Curry references a June 6, 2011 medical source report by Judy Vinczel, LPCC. Doc. 16 at 13
n.9; see also AR 697–702. While LPCC Vinczel’s report indicates that Ms. Curry had
significant work-related restrictions as of June 6, 2011, nothing in this medical record indicates
that Ms. Curry was disabled by a mental impairment during the relevant time period. The ALJ
considered this report and gave the opinion “moderate weight” because LPCC Vinczel is not an
acceptable medical source, and because the record does not contain the treatment notes. AR 786.
Ms. Curry does not challenge the ALJ’s assessment or weighing of the medical opinion. Third,
Ms. Curry references a June 24, 2011 report by Dr. Baum, who evaluated Ms. Curry for the

11

Social Security Administration. Doc. 16 at 13 (citing AR 756–57). Ms. Curry advised Dr. Baum
that she had no psychiatric or neurologic history prior to her strokes, and denied any current
symptoms. AR 756–57. Dr. Baum found no behavioral abnormalities and no psychotic features.
AR 757. Dr. Baum found a mild neurocognitive disorder, and diagnosed her with dysthymia and
schizophrenia by history only. Id. Nothing in this medical report indicates that Ms. Curry was
disabled by a mental impairment during the relevant time period. The ALJ gave Dr. Baum’s
opinion “little weight” because it was internally inconsistent, and was based on her past history
rather than on her current mental condition. AR 786. Ms. Curry does not challenge the ALJ’s
assessment or weighing of the medical opinion.
Finally, Ms. Curry references a psychological report from clinical psychologist Emily
Moore, PhD, who assessed Ms. Curry on March 7, 2014, at the request of Ms. Curry’s attorney.
Doc. 16 at 13–14 (citing AR 1713). Ms. Curry points to the fact that Dr. Moore believed that she
likely had had schizophrenia for the past 17 years. Id. The ALJ gave this opinion “little
weight,” however, and found that “the claimant’s ability to ignore the voices and the lack of
further reporting of auditory hallucinations until 2014 suggests they were not present or did not
impact the claimant prior to this time.” AR 787. The ALJ found Dr. Moore’s finding that Ms.
Curry’s cognitive impairment “could be related to her stroke or head trauma from a fall during
the stroke, or could be associated with schizophrenia,” to be speculative. Id. The ALJ
emphasized that Ms. Curry did not receive any mental health treatment between 2000 and 2009,
and that there was no other documentation of mental health symptoms during this time period.
Id. Ms. Curry does not challenge the ALJ’s assessment or weighing of Dr. Moore’s medical
opinion.

12

In sum, Ms. Curry fails to point to any evidence—medical, testimonial, or other—
indicating that her impairments were the type of slowly progressive impairments which might
require the ALJ to consult a medical advisor. Ms. Curry also points to no evidence indicating
that the onset date of her disability is ambiguous. A lack of medical evidence and treatment
during the relevant time period by itself is not enough to require the ALJ to consult a medical
advisor. The ALJ did not err in failing to consult a medical advisor. Therefore, remand on this
issue is denied. 11
B. The ALJ did not err by failing to conduct a function-by-function assessment.
Ms. Curry argues that the ALJ failed to perform an adequate function-by-function
analysis before finding that she had the RFC to perform light work with the additional limitation
of only occasional handling and fingering with her upper left extremity. Doc. 16 at 17. 12 This
argument is without merit.
11

The cases Ms. Curry cites are either not on point, or are distinguishable. Two of the district
court cases Ms. Curry cites involve situations in which the SSA had approved the claimant for
benefits based on a second application while a first application was pending. See Willingham v.
Astrue, No. 11-cv-508 LAM, Doc. 19 at 3 (D.N.M. Aug. 22, 2012); Perez v. Colvin, No. 14-cv819 KBM, Doc. 25 at 2 (D.N.M. Dec. 10, 2015). Unlike these cases, Ms. Curry’s case involves
one consolidated application for both DIB and SSI benefits. Furthermore, other judges in this
District have found the same arguments which were successful in Willingham and Perez to be
unpersuasive. See Jaramillo v. Colvin, No. 14-cv-298 SMV, Doc. 25 at 7–10 (D.N.M. May 4,
2015); Ortega v. Colvin, No. 15-cv-688 WPL, Doc. 29 at 15–17 (D.N.M. Nov. 29, 2016). The
other case Ms. Curry cites is distinguishable. Trujillo v. Astrue was remanded because claimant
had multiple sclerosis, an impairment which this Court found to be slowly progressive. No. 10cv-0885 JCH/KBM, Doc. 22 at 1 (D.N.M. June 20, 2011). In contrast, Ms. Curry has failed to
show that her impairments are slowly progressive.
12

The Court previously remanded this case because the ALJ failed to consider the seven strength
demands, and failed to support his RFC determination with substantial evidence. See AR 844–
50. In the initial adjudication, the ALJ found Ms. Curry capable of doing a full range of medium
work, and concluded that she was not disabled because she was capable of doing her past
relevant work. AR 17, 20. Judge Johnson remanded the case specifically because the ALJ failed
to discuss state medical consultant Dr. John Vorheis’s RFC findings for the period before
January 23, 2009. AR 846; see also AR 552–59. The Court notes that, in the current
adjudication on appeal, ALJ Farris found Ms. Curry more limited than did Dr. Vorheis. AR 783.
13

Step Four of the sequential evaluation process is comprised of three phases. Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996).
In the first phase, the ALJ must evaluate a claimant’s physical and mental residual
functional capacity (RFC), . . . and in the second phase, he must determine the
physical and mental demands of the claimant’s past relevant work. . . . In the
final phase, the ALJ determines whether the claimant has the ability to meet the
job demands found in phase two despite the mental and/or physical limitations
found in phase one. . . . At each of these phases, the ALJ must make specific
findings.
Id. (internal citations omitted).
An “RFC determines a work capability that is exertionally sufficient to allow
performance of at least substantially all of the activities of work at a particular level.” SSR 8310, 1983 WL 31251, at *2. It is a reflection of “the maximum amount of each work-related
activity the individual can perform,” and the ALJ must describe the “individual’s ability to
perform sustained work activities in an ordinary work setting on a regular and continuing basis.”
SSR 96-8p, 1996 WL 374184, at *7. “The adjudicator must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were considered and resolved.”
Id.
An ALJ may not initially express an RFC in terms of “sedentary,” “light,” “medium,”
“heavy,” and “very heavy,”—the exertional levels of work. Id. at *3. To ensure accuracy, “[t]he
RFC assessment must first identify the individual’s functional limitations or restrictions and
assess his or her work-related abilities on a function-by-function basis.” Id. at *1 (emphasis
added). The ALJ may express the RFC in terms of exertional levels only after performing a
function-by-function analysis. Id.

Thus, the specific reason for the first remand based on the failure to perform a function-byfunction analysis is no longer at issue.
14

A function-by-function assessment is the description of an “individual’s ability to
perform sustained work activities in an ordinary work setting on a regular and continuing basis.”
Id. at *7. Without this initial step “an adjudicator may either overlook limitations or restrictions
that would narrow the ranges and types of work an individual may be able to do, or find that the
individual has limitations or restrictions that he or she does not actually have.” Id. at *4. The
ALJ is required to address “an individual’s limitations and restrictions of physical strength and
define [ ] the individual’s remaining abilities to perform each of seven strength demands:
Sitting, standing, walking, lifting, carrying, pushing and pulling.” Id. at *5. For example, “the
individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours.” Id. “Each of the seven
strength demands must be considered separately.” Southard v. Barnhart, 72 F. App’x 781, 784
(10th Cir. 2003) (unpublished) (citing SSR 96-8p, 1996 WL 374184, at *3–4).
An ALJ’s failure to do an explicit function-by-function analysis does not always require
remand, however. In Hendron, the Tenth Circuit held that the ALJ did not err by finding that
Ms. Hendron could perform a “full range of sedentary work” without an “explicit function-byfunction analysis.” Hendron v. Colvin, 767 F.3d 951, 956 (10th Cir. 2014). The court did not
require an explicit function-by-function analysis because there was no evidence supporting a
limitation in the claimant’s ability to sit during the relevant two-month time period; therefore, the
analysis was not critical to the outcome of the case. Id. at 956–57. Similarly here, Ms. Curry
points to no evidence supporting any limitation in her seven strength demands during the
relevant time period which the ALJ failed to adequately consider, and which would affect the
outcome of this case. As in Hendron, the ALJ’s failure to do a more explicit function-byfunction analysis was harmless.

15

In Ms. Curry’s case, the ALJ thoroughly discussed the evidence about Ms. Curry’s
limitations, and provided substantial evidence for her RFC findings. The ALJ found that the
medical evidence showed that Ms. Curry suffered an acute cerebral vascular accident in
November 2006, and upon discharge was ambulating well with some loss of function to her left
upper extremity, and with left facial droop. AR 780. The ALJ also noted that Ms. Curry did not
receive any additional medical care until February 2007, with a visit to PA Heather Dountas at
Lovelace Medical Group. AR 780. At this visit, Ms. Curry reported that her speech was no
longer slurred. Id. PA Dountas determined that Ms. Curry had slightly decreased grip strength
in her left hand, a normal gait, and that her strength was five out of five in both her upper and
lower extremities. AR 780–81. The ALJ further noted that Ms. Curry’s next treatment record in
June 2008, shortly after her date last insured, did not include any complaints, a fact the ALJ
concluded showed that Ms. Curry was not significantly limited after her first stroke. AR 781. In
addition, the ALJ reviewed the treatment records after Ms. Curry’s second stroke, which
documented her medical history. Those records showed that Ms. Curry had regained complete
control of her functions following her first stroke and had no “residual deficits” after her first
stroke. AR 781.
In addition, the ALJ discussed Ms. Curry’s testimony about limitations to her left hand
and arm after her first stroke and before her second stroke. AR 781–82. The ALJ noted that in
her June 2011 testimony, Ms. Curry denied having any problems with sitting, standing, walking,
or talking. AR 781. She stated that she was able to rehabilitate her left hand within 6 to 12
months after her first stroke so that it was useable and “she could hold onto little things.” AR
781–82. She also “testified that she would use her left hand and arm like they were normal

16

although they were a little weak and she was limited to lifting about five pounds.” AR 782. 13
After discussing this testimony and all of the medical evidence, the ALJ concluded her analysis:
In sum, the records indicate that [Ms. Curry] was minimally limited by her left
hand weakness. She testified in June 2011 that she could lift five pounds with her
left hand [after] 14 her first stroke. She also reported that before her second stroke,
she could bring in the groceries, do everyday housework, and walk her two dogs
but did note that she did most of this with her right arm. While her February 2015
testimony suggested more limitations as discussed above, I find it to be less
credible and also note as discussed below that claimant has developed some
memory problems which could impact her ability to remember her condition
before her second stroke. I have accommodated the weakness to her left upper
extremity by limiting her to light work with only occasional handling and
fingering with her left upper extremity. However, I do not find that she was
completely unable to use her left arm after the first stroke.
AR 782.
Ms. Curry argues that the ALJ’s RFC is not supported by substantial evidence because it
is unclear how she would be able to frequently lift and carry—as required by “light work”—
while limited to “occasional” handling with her left arm. Doc. 16 at 18. The Court finds this
argument unpersuasive because it conflates exertional and nonexertional limitations. 15
A nonexertional limitation—such as a limitation in the ability to “handle”—does not
necessarily affect a claimant’s ability to do the strength demands required by “light work.” The
SSA classifies work in the national economy by the exertional levels of sedentary, light,
13

The ALJ found Ms. Curry’s February 2015 testimony—in which she claimed that after her
first stroke she had vision and hearing problems and frequently bumped into things, and was
unable to use a camera—not credible because it conflicted with her June 2011 testimony, and
was inconsistent with the February 2007 treatment note from PA Dountas. AR 781–82.
14

The ALJ erroneously stated “prior to her first stroke.” However, at the hearing, in response to
the ALJ’s question about what she could lift after her first stroke, Ms. Curry testified that she
could lift a five pound bag of sugar with her left arm. AR 43–44.
15

The Commissioner also seems to conflate exertional and nonexertional limitations, arguing
only that Ms. Curry’s argument is a “red herring” because Ms. Curry would be able to perform
the requirements of light work with her dominant right arm and hand, with occasional assistance
from her left arm and hand. Doc. 20 at 7.
17

medium, heavy or very heavy. SSR 83-10, 1983 WL 31251, at *2. The levels of work are
defined by the extent that they require each of the primary strength activities—sitting, standing,
walking, lifting, carrying, pushing, and pulling. Id. at *2, *5. A claimant has an exertional
limitation when she has an impairment-caused limitation that affects her ability to perform an
exertional, or strength, activity. Id. at *5.
Conversely, a nonexertional impairment is an impairment “which does not directly affect
the ability to sit, stand, walk, lift, carry, push, or pull.” Id. at *6 (emphasis added).
Nonexertional impairments include impairments which affect the ability to handle and the ability
to use the fingers for fine activities. Id. A claimant has a nonexertional limitation when she has
an impairment-caused limitation that affects her ability to perform “work activities other than
the primary strength activities.” Id. at *7 (emphasis added); see also Trimiar v. Sullivan, 966
F.2d 1326, 1328 n.3 (10th Cir. 1992) (“Nonexertional limitations are ‘medically determinable
impairments, such as . . . postural and manipulative limitations . . . [that] do not limit physical
exertion.” (quoting 20 C.F.R. § 404.1545(d)).
In this case, the ALJ found that, exertionally, Ms. Curry was limited to light work. AR
779. The ALJ then found that Ms. Curry had the additional nonexertional limitations of being
limited to occasional handling and fingering with her upper left extremity. AR 779. Handling is
defined as “seizing, holding, grasping, turning or otherwise working primarily with the whole
hand or hands.” SSR 85-15, 1985 WL 56857, at *7. “‘Fingering’ involves picking, pinching, or
otherwise working primarily with the fingers.” Id.
Ms. Curry attempts to argue that the exertional strength demands of lifting require “an
effective ability to handle.” Doc. 16 at 18. This argument is a non sequitur given that the SSA
defines nonexertional limitations (such as Ms. Curry’s limitations in handling and fingering) as

18

limitations that affect a claimant’s ability to perform work activities “other than the primary
strength activities.” SSR 83-10, 1983 WL 31251, at *7. The VE’s testimony at step five
demonstrates that handling and fingering are not necessarily required to perform the strength
demands of light work. The ALJ asked the VE if there were jobs Ms. Curry could do if she were
limited to light work, and could only occasionally handle and finger with her left, non-dominant
arm. AR 830. In response to this inquiry, the VE testified that Ms. Curry could perform the
following three jobs at the light exertional level: (1) School bus monitor, DOT # 372.667-042
(2) Bakery worker, DOT #524.687-022, and (3) Counter clerk, DOT # 249.66-010. AR 832–34.
All three of these jobs at the light exertional level require only occasional handling and fingering
for both hands. 16 Because there are a number of light exertional jobs that can be performed with
only occasional handling and fingering, Ms. Curry’s argument that her ability to lift and carry is
automatically compromised by a limitation on her ability to handle is without merit. The Court
finds no error in the ALJ’s assessment of Ms. Curry’s exertional work-related abilities. Ms.
Curry fails to point to any limitation during the relevant time period that the ALJ failed to
adequately address. Thus, as in Hendron, the Court declines to remand this case based on a
function-by-function error.
C. The ALJ’s step-five findings are supported by substantial evidence.
Ms. Curry argues that the ALJ’s findings at step five are not supported by substantial
evidence. Doc. 16 at 19–21. She argues that the number of available jobs were “borderline” and

16

The DOT lists exertional job requirements. Non-exertional job requirements (such as those for
reaching, handling, and grasping) are found in The Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles (“SCO”). See SSR 85-15, 1985 WL
56857. The SCO, available at http://www.nosscr.org/sco/sco.pdf, defines how often a nonexertional activity is required for a particular job: ranging from Not Present (N), to Occasionally
(O), Frequently (F), or Constantly (C). SCO, Identification Key, ID-2.

19

“doubtful,” and that the ALJ erred by not further analyzing the number of available jobs using
the Trimiar factors. Id. at 21. In addition, Ms. Curry argues that it is unclear what methodology
the VE relied upon in determining the number of jobs in the national economy for the selected
jobs the VE found she still could perform. Id. at 20. These arguments are not persuasive.
1. The ALJ adequately considered the Trimiar factors.
“The [claimant] bears the burden of proving disability within the meaning of the Social
Security Act. Having shown that his disability precludes return to his prior employment, the
‘burden of going forward shifts to the Secretary, who must show that the claimant retains the
capacity to perform an alternative work activity and that this specific type of job exists in the
national economy.’” Trimiar, 966 F.2d at 1329 (quoting Channel v. Heckler, 747 F.2d 577, 579
(10th Cir. 1984)).
An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he is not
only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A). “[W]ork which exists in the national economy” is defined as “work
which exists in significant numbers either in the region where such individual lives or in several
regions of the country.” Id.; see also Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009)
(an ALJ may “look[ ] to the national economy—not just a local area” in determining whether
there is a significant number of available jobs). 17

17

Ms. Curry argues that the numbers of jobs the ALJ found she could perform were not
significant because “neither a total of 13,000, a total of 1,400, nor a total of 6,900 jobs available
in the national economy rises to a significant level as defined in 42 U.S.C. § 423(d)(2)(A). The
result would lead to only 260, 28, and 138 jobs per state, respectively.” Doc. 16 at 21. As the
Commissioner points out, this argument must fail. Doc. 20 at 8. First, the ALJ is not required to
20

The Tenth Circuit has never drawn a bright line establishing the number of jobs necessary
to constitute a “significant number,” holding instead that each case should be evaluated on its
individual merits. Trimiar, 966 F.2d at 1330. In Trimiar, the court analyzed whether the
relatively small number of jobs in the state of Oklahoma which the VE testified that the claimant
could perform—between 650 and 900 jobs—constituted a “significant number.” 966 F.2d at
1330. The Tenth Circuit noted that “several factors go into the proper evaluation of significant
numbers.” Id.
A judge should consider many criteria in determining whether work exists in
significant numbers, some of which might include: the level of claimant’s
disability; the reliability of the vocational expert’s testimony; the distance
claimant is capable of travelling to engage in the assigned work; the isolated
nature of the jobs; the types and availability of such work, and so on.
Id. (quoting Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988)). The court in Trimiar
concluded that “[t]he decision should ultimately be left to the [ALJ’s] common sense in
weighing the statutory language as applied to a particular claimant’s factual situation.” Id.
After reviewing both the transcript of the hearing and the ALJ’s decision, the court in
Trimiar found that the ALJ had adequately considered the relevant factors. Id. at 1332 (“We
need not strain at numbers in reaching our conclusion that the ALJ’s decision is founded on
substantial evidence on the record. The record indicates that the ALJ weighed the relevant
factors in reaching his conclusion.”). The court consequently affirmed the ALJ’s “factual
finding” that significant numbers of jobs existed. See Stokes v. Astrue, 274 F. App’x 675, 684
(10th Cir. 2008) (unpublished). Thus, as long as the Court is satisfied that the ALJ adequately
find that each job exists in significant numbers. See 20 C.F.R. § 404.1566 (“Work exists in the
national economy when there is a significant number of jobs (in one or more occupations) having
requirements which you are able to meet with your physical or mental abilities and vocational
qualifications.”). Second, there is no legal requirement for the ALJ to find significant numbers
of jobs in the state. See Raymond, 621 F.3d at 1274 (“controlling statutes, federal regulations,
and case law all indicate that the proper focus generally must be on jobs in the national, not
regional, economy”).
21

considered the Trimiar factors, and as long as her “decision is founded on substantial evidence
on the record,” Trimiar, 966 F.2d at 1332, this Court will not disturb an ALJ’s factual finding
that the number of jobs available is significant.
The ALJ need not formally discuss each of the Trimiar factors; it is sufficient if the
Court, “[i]n reviewing the transcript of the hearing and the decision of the ALJ [is] convinced
that the ALJ gave proper consideration to the[] factors.” Trimiar, 966 F.2d at 1330. The Court
need only be convinced that the ALJ used “common sense in weighing the statutory language as
applied to a particular claimant’s factual situation.” See id.; see also Hill v. Colvin, No. CIV-131232-HE, 2015 WL 1412581, at *8 (W.D. Okla. Mar. 26, 2015); Baca v. Astrue, No. 09-cv-290
ACT, Doc. 22 at 8–10 (D.N.M. Feb. 25, 2010).
In this case, both the ALJ’s decision and the hearing testimony demonstrate that the ALJ
adequately considered the relevant Trimiar factors: the level of the claimant’s disability; the
reliability of the vocational expert’s testimony; the distance the claimant is capable of travelling
to engage in the assigned work; the isolated nature of the jobs; and the types and availability of
such work. In addition, substantial evidence supports the ALJ’s decision.
The ALJ’s decision establishes that she thoroughly considered the level of Ms. Curry’s
disability. AR 777–88. In addition, the ALJ adequately addressed the reliability of the VE’s
testimony. The ALJ asked the VE whether her professional qualifications on record were
accurate and up to date, and Ms. Curry’s counsel stated that he had no objections to the VE’s
qualifications. AR 829. The ALJ also instructed the VE that her testimony needed to be in
accord with the Dictionary of Occupational Titles and its companion publications. AR 829. In
her decision, the ALJ stated that she had determined that the VE’s testimony was consistent with
the DOT. AR 790. The ALJ also noted in her decision that the VE “explained that she looked

22

for jobs that required minimal [handling] 18 and fingering” because, while the DOT addresses the
use of the upper extremities, “it [does] not address limited use of only one upper extremity.” AR
790. The ALJ considered and included Ms. Curry’s impairments—those supported by the
record—in her hypothetical questions to the VE. AR 830–35. 19 In her decision, the ALJ, relying
on the VE’s testimony, considered the types of work available, and the numbers of positions
available. AR 790 (finding that Ms. Curry could perform the jobs of school bus monitor, bakery
worker, and counter clerk, which represented 13,000, 1,400, and 6,900 jobs respectively). The
ALJ specifically held that “[b]ased on the testimony of the vocational expert . . . the claimant
was capable of making an adjustment to other work that existed in significant numbers in the
national economy.” AR 790.
With regard to Ms. Curry’s ability to travel to the assigned work, Ms. Curry testified at
the first administrative hearing that she had two car accidents after her first stroke. AR 47. At
the second administrative hearing, the ALJ asked Ms. Curry if she still drove, and Ms. Curry
testified that she did. AR 816. Ms. Curry also testified that she after the first stroke she only
“dropped driving at night a little bit.” AR 811. The ALJ noted in her decision that, after Ms.
Curry’s first stroke, she still was able to drive solo from Albuquerque, New Mexico to Honduras.
AR 779. Thus, while there is some conflicting information in the record about Ms. Curry’s
18

The ALJ adopted the VE’s erroneous reference to “reaching” instead of “handling.” AR 790.
As Ms. Curry points out, the VE often misspoke during the hearing, mentioning “reaching”
instead of “handling.” Doc. 16 at 23 n.20; AR 832–34. A review of the SCO for the DOT
numbers of the jobs the VE testified Ms. Curry still could perform show that this error is
harmless, as all of the identified jobs require only occasional handling. See SCO, available at
http://www.nosscr.org/sco/sco.pdf at 46, 299, 333.
19

The ALJ posed the following hypothetical to the VE: “assuming a person of the same age,
education, and work history as the claimant is limited to light work, but could only occasionally
handle and finger with the left arm, which is the nondominant arm, would such a person be able
to perform any category of claimant’s past work?” AR 830–31. The ALJ later asked the VE if
there would be other jobs in the national economy that such a person could perform. AR 831.
23

ability to drive after her first stroke, the Court finds that the ALJ adequately considered this
factor. Finally, there is nothing in the record to suggest that the jobs of school bus monitor,
bakery worker, or counter clerk are isolated in nature; nor does Ms. Curry make any such
assertion in her brief. The ALJ properly considered the relevant Trimiar factors. The Court
therefore will not disturb the ALJ’s factual finding that the 21,300 jobs available to Ms. Curry
constitute a substantial number. The Court may “not presume to interpose [its] judgment for that
of the ALJ.” See Trimiar, 966 F.2d at 1332.
2. The VE’s methodology is not a basis for remand.
Ms. Curry argues that the ALJ’s step five decision is not supported by substantial
evidence because it is unclear what methodology the VE used to ascertain the number of jobs
available for the DOT descriptions for school bus monitor (DOT # 372.667-042), bakery worker
(DOT # 524.687-022), and counter clerk (DOT #249.366-010). Doc. 16 at 20. Despite arguing
that the VE’s methodology is unclear, Ms. Curry then posits that the VE must have relied on
Department of Labor (“DOL”) statistics for “Transportation Attendants, Except Flight
Attendants”—despite an apparent mismatch between the job descriptions for school bus monitor
in this category and the DOT description of a school bus monitor. Id. at 20–21. This argument
is mere conjecture.
Ms. Curry offers no evidence to support her theory that the VE derived the numbers of jobs from
the DOL statistics for “Transportation Attendants, Except Flight Attendants,” and the record is
silent on this matter. Ms. Curry cites no law to support her assertion that the VE was required to
derive the number of available jobs from DOL statistics. 20 Without support in fact or law, Ms.

20

The regulations allow the ALJ to take administrative notice of “reliable job information
available from various governmental and other publications”: “(1) Dictionary of Occupational
Titles, published by the Department of Labor; (2) County Business Patterns, published by the
24

Curry asks this Court to reverse the ALJ’s decision. The Court declines the invitation. The only
record evidence concerning the number of jobs available to Ms. Curry in the national economy is
the testimony of the VE. Under Tenth Circuit precedent, the ALJ properly may rely on such
testimony to support a step-five finding. See Trimiar, 966 F.2d at 1334. Accordingly, the Court
finds that substantial evidence supports the ALJ’s step-five analysis.
D. The ALJ did not conclusively rely on the grids at step five.
Ms. Curry argues that the ALJ may have improperly relied on the “grids.” Doc. 16 at 21.
Ms. Curry argues that the ALJ erred in concluding that her limitation to “occasional handling and
fingering with her upper left extremity” did “not significantly erode the light exertional base.”
Id. This argument also is without merit.
Step five involves two stages:
First, the [ALJ] must assess each claimant’s present job qualifications. The
regulations direct the [ALJ] to consider the factors Congress has identified as
relevant: physical ability, age, education and work experience. Second, [the ALJ]
must consider whether jobs exist in the national economy that a person having the
claimant’s qualifications could perform.
Heckler v. Campbell, 461 U.S. 458, 460–61 (1983) (internal citations omitted). Prior to 1978,
the SSA relied on VEs to establish the existence of suitable jobs in the national economy. Id. at
461. In 1978, to improve uniformity and efficiency at the second stage of step five, the SSA
promulgated the medical-vocational guidelines (“the grids”). Id.; see also 20 C.F.R. § 404,
subpt. P, app. 2. The grids “consist of a matrix of the four factors identified by Congress—

Bureau of the Census; (3) Census Reports, also published by the Bureau of the Census; (4)
Occupational Analyses, prepared for the Social Security Administration by various State
employment agencies; and (5) Occupational Outlook Handbook, published by the Bureau of
Labor Statistics.” 20 C.F.R. § 404.1566. As in Gay v. Sullivan, the claimant here “has advanced
no authority or reasoned explanation for [her] critical assumption that the range of professional
sources” is limited to those in claimant’s argument. 986 F.2d 1336, 1340 (10th Cir. 1993)
(“Indeed, what would be the point of vocational testimony (or expert testimony in general) if it
could not reach beyond matters already established through administrative (or judicial) notice?”).
25

physical ability, age, education, and work experience—and set forth rules that identify whether
jobs requiring specific combinations of these factors exist in significant numbers in the national
economy.” Id. at 461–62.
“[T]he grids may not be applied conclusively in a given case unless the claimant’s
characteristics precisely match the criteria of a particular rule.” Channel v. Heckler, 747 F.2d
577, 579 (10th Cir. 1984). 21 When the characteristics do not precisely match, an ALJ must give
full consideration “to all of the relevant facts of the case, and the existence of jobs in the national
economy for that individual must be further considered in terms of what kinds of jobs or types of
work may be either additionally indicated or precluded.” Id. (internal citations and quotations
omitted). “[B]ecause the grids consider only impairments that result in exertional or strength
limitations, they may not be fully applicable where other, nonexertional impairments are
present.” Id. at 577.
When a claimant has exertional and nonexertional impairments, the ALJ conducts a twopart analysis:
the Secretary’s regulations mandate that the grids be applied first, to determine
whether the claimant is disabled by reason of the exertional impairments alone.
20 C.F.R. § 404, Subpt. P, App. 2, § 200.00(e)(2). If the claimant is not so
disabled, the ALJ must then make a second individualized determination using the
grids only as a framework for consideration of how much the individual’s work
capability is further diminished in terms of any types of jobs that would be
contraindicated by the nonexertional limitations.
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987) (internal citation and quotation omitted).
When a claimant has both exertional and nonexertional limitations, an ALJ must elicit

21

To conclusively rely on the grids, an ALJ must make the following findings, each supported by
substantial evidence: “(1) that the claimant has no significant nonexertional impairment, (2) that
the claimant can do the full range of work at some RFC level on a daily basis, and (3) that the
claimant can perform most of the jobs in that RFC level.” Thompson v. Sullivan, 987 F.2d 1482,
1488 (10th Cir. 1993).
26

“vocational expert testimony . . . to determine whether jobs exist for someone with the claimant’s
precise disabilities.” Trimiar, 966 F.2d at 1333 (internal citations and quotations omitted).
“Without the grids, the ALJ must resort to testimony from a vocational expert to establish that a
significant number of jobs exist in the national economy which the claimant can perform.” Id.
While the ALJ’s step-five findings in this case are somewhat muddled, the Court does not
find that the ALJ improperly relied on the grids. Instead, the ALJ followed the two-part analysis
outlined in Frey, 816 F.2d 508. First, the ALJ applied the grids to determine if Ms. Curry was
disabled by her exertional impairments alone, and concluded that she was not:
Prior to January 23, 2009, if the claimant had the residual functional capacity to
perform the full range of light work, a finding of ‘not disabled’ would be directed
by Medical-Vocational Rule 202.21. However, the claimant’s ability to perform
all or substantially all of the requirements of this level of work was impeded by
additional limitations.
AR 789. Finding she was not disabled under the grids, the ALJ proceeded to “make a second
individualized determination using the grids only as a framework.” Frey, 816 F.2d at 513. The
ALJ correctly stated that she “must consider the claimant’s residual functional capacity, age,
education, and work experience in conjunction with the Medical-Vocational Guidelines [the
grids].” AR 789. The ALJ also correctly stated that “[w]hen the claimant cannot perform
substantially all of the exertional demands of work at a given level of exertion and/or has
nonexertional limitations, the medical-vocational rules [the grids] are used as a framework for
decisionmaking. . . .” AR 789.
Accordingly, instead of relying on the girds, the ALJ elicited VE testimony to determine
whether jobs exist in the national economy for someone with Ms. Curry’s precise disabilities.
AR 789 (“To determine the extent to which these limitations eroded the unskilled light
occupational base, I asked the vocational expert whether jobs exist in the national economy for

27

an individual with the claimant’s age, education, work experience, and residual functional
capacity.”). The ALJ then explicitly stated that her conclusion that Ms. Curry was capable of
making a successful adjustment to other work that existed in significant numbers in the national
economy was “[b]ased on the testimony of the vocational expert.” AR 790. The ALJ concluded
her discussion of the VE testimony by stating that a “finding of ‘not disabled’ is therefore
appropriate under the framework” of the grids. AR 790.
The regulations state that “[w]ork exists in the national economy when there is a
significant number of jobs (in one or more occupations) having requirements which [the claimant
is] able to meet with [his or her] physical or mental abilities and vocational qualifications.” 20
C.F.R. § 416.966(b). The VE’s testimony established the existence of such jobs in this case.
Thus, the ALJ’s step-five findings satisfied the statutory and regulatory requirements requiring
proof that Ms. Curry can engage in substantial gainful work that exists in significant numbers in
the national economy.
Given that the ALJ concluded, based on the VE’s testimony, that Ms. Curry was not
disabled because she could adjust to other work that existed in significant numbers in the
national economy, the Court finds that any error in the final paragraph of the ALJ’s step-five
analysis is harmless. The Court acknowledges that some of the language in the final paragraph
of the ALJ’s step-five findings supports an argument that the ALJ applied the grids. See AR
790; Ramirez v. Astrue, 255 F. App’x 327, 330 n.1 (10th Cir. 2007) (unpublished) (noting that
the ALJ’s findings that claimant “could perform substantially all of the exertional requirements
of light work and that his nonexertional impairments [did] not significantly limit the range of
available light work job” were findings that must be made in order to conclusively apply the
grids). However, the last paragraph of the ALJ’s step-five findings cannot be read in isolation.

28

When read in its entirety, the ALJ’s step-five analysis does not indicate that the ALJ
conclusively applied the grids. Instead, the last paragraph of the ALJ’s step-five analysis is
unnecessary to her finding that there were significant jobs in the national economy that Ms.
Curry could meet. The ALJ concluded, based on the VE’s testimony alone, that there were a
significant number of jobs Ms. Curry could perform. AR 790. Having so concluded, her
reasoning in the next paragraph, “[i]n addition” to the VE’s testimony, is superfluous. See id.
The ALJ met the step-five burden through the VE’s testimony. The ALJ was required to do
nothing further. See Amason v. Colvin, No. 4:11-CV-805-A, 2013 WL 1413023, at *11 (N.D.
Tex. Mar.1, 2013) (holding that ALJ adequately analyzed the erosion of the occupational base by
eliciting testimony from a VE about specific jobs claimant could still perform and the number of
available jobs); see also Gutierrez v. Barnhart, 109 F. App’x 321, 328 (10th Cir. 2004)
(unpublished) (ALJ who erroneously applied the grids could have met step five burden by
soliciting evidence from a VE about “specific light jobs” that exist in significant numbers).
VII.

Conclusion

The ALJ properly applied SSR 83-20, and was not required to consult a medical advisor.
The ALJ did not err by failing to conduct a function-by-functions assessment in formulating Ms.
Curry’s RFC. Furthermore, substantial evidence supports the ALJ’s step-five findings, and the
ALJ did not conclusively rely on the grids.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reverse and Remand for a
Rehearing (Doc. 16) is DENIED.

________________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

29