Padilla v. Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa denying 23 MOTION to Remand to Agency for Rehearing, with Supporting Memorandum. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID PADILLA,
Plaintiff,
vs.

Civ. No. 16-106 KK

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 16) filed May 16, 2016, in support of Plaintiff David Padilla’s (“Plaintiff”) Complaint
(Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration, (“Commissioner”) denying Plaintiff’s claims for Title II
disability benefits and Title XVI supplemental security income benefits. On September 19,
2016, Plaintiff filed his Motion to Reverse and Remand to Agency for Rehearing, with
Supporting Memorandum (“Motion”).

(Doc. 23.)

The Commissioner filed a response in

opposition to the Motion on November 18, 2016 (Doc. 25), and Plaintiff filed a reply in support
of it on December 2, 2016. (Doc. 26.) The Court has jurisdiction to review the Commissioner’s
final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire
record and being fully advised in the premises, the Court finds the Motion is not well taken and
is DENIED.
1

Pursuant to Federal Rule of Civil Procedure 25, Nancy A. Berryhill is substituted for Carolyn Colvin as the Acting
Commissioner of the Social Security Administration. Fed. R. Civ. P. 25(d).

2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
order the entry of judgment, in this case. (Docs. 5, 8, 9.)

I. Background and Procedural History
Claimant David Padilla (“Mr. Padilla”) alleges that he became disabled on September 1,
1994, at twenty-eight years of age, because of hepatitis C and alcoholism. (Tr. 189, 192, 415.3)
Mr. Padilla graduated from high school, served a short time in the U.S. Navy, and has worked as
a general laborer, wheelchair attendant, and shuttle driver. (Tr. 212-213, 300, 503.)
On January 12, 2009, Mr. Padilla protectively4 filed an application for Social Security
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 401, and
concurrently filed an application for Supplemental Security Income under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq.

(Tr. 189-91, 192-93, 289.)

Mr. Padilla’s

applications were initially denied on April 16, 2009, and denied again at reconsideration on
June 26, 2009. (Tr. 80-81, 83-84, 87-93, 95-101.) On August 12, 2009, Mr. Padilla requested a
hearing before an Administrative Law Judge (“ALJ”). (Tr. 102-03.) The ALJ conducted a
hearing on May 21, 2010, and issued an unfavorable decision on September 22, 2011. (Tr. 1228, 35-78.) The ALJ found Mr. Padilla not disabled at step five of the five-step sequential
evaluation process, and determined that, “considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in
the national economy that claimant can perform[.]” (Tr. 27.) On December 12, 2012, the
Appeals Council issued its decision denying Mr. Padilla’s request for review and upholding the
ALJ’s final decision. (Tr. 1-11.)

3

Citations to “Tr.” are to the Transcript of the Administrative Record that was lodged with the Court on May 16,
2016. (Doc. 16.)

4

Protective filing status is achieved once an individual contacts the Social Security Administration with the positive
stated intent of filing for Social Security Disability Benefits. The initial contact date is considered a claimant’s
application date, even if it is earlier than the date on which the Social Security Administration actually receives the
completed and signed application. See 20 C.F.R. §§ 404.614, 404.630, 416.325, 416.340, 416.345

2

On January 31, 2013, Mr. Padilla timely filed a Complaint seeking judicial review of the
Commissioner’s final decision. (USDC Civ. No. 13-103 GBW, Doc. 1.) The parties fully
briefed the issues raised for judicial review. (Id., Docs. 24, 27, 28, 29.) On September 25, 2014,
Magistrate Judge Gregory B. Wormuth, presiding by consent, entered a Memorandum Opinion
and Order remanding Mr. Padilla’s case for further administrative proceedings. (Id., Doc. 30;
Tr. 670-92.)

Judge Wormuth found that the ALJ had erred in his credibility assessment

pertaining to the intensity of Plaintiff’s symptoms, and remanded to ensure that the ALJ applied
the correct legal standard in reaching a decision based on the facts of the case. (Tr. 690-91.)
On November 7, 2014, the Appeals Council entered an Order Remanding Case to
Administrative Law Judge directing the ALJ to reevaluate Mr. Padilla’s credibility. (Tr. 69596.) The Appeals Council directed the ALJ to offer Mr. Padilla the opportunity for a hearing, to
take any further action needed to complete the administrative record, and to issue a new decision.
(Id.) On May 29, 2015, ALJ Eric Weiss conducted a hearing pursuant to the Appeals Council’s
order remanding the case. (Tr. 612-659.) Mr. Padilla appeared in person at the hearing with his
attorney Gary Martone. (Id.) The ALJ took testimony from Mr. Padilla, (Tr. 617-649), and from
an impartial Vocational Expert (“VE”), Karen Provine. (Tr. 649-59.)
On July 17, 2015, the ALJ issued an unfavorable decision. (Tr. 584-604.) In arriving at
his decision, the ALJ determined that Mr. Padilla met the insured status requirement through
December 31, 2000.5 (Tr. 590.) He found that Mr. Padilla engaged in substantial gainful activity
in 2006, but that there had been continuous 12-month periods during which Mr. Padilla had not
engaged in substantial gainful activity since his alleged onset date. (Id.) The ALJ found that
Mr. Padilla suffered from the severe impairments of cirrhosis of the liver, hepatitis C,

5

To receive disability benefits, a claimant must show he was disabled prior to his date of last insured. See Potter v.
Sec’y of Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990).

3

degenerative disc disease, osteoarthritis in the lower leg, personality disorder, adjustment
disorder, and depressive disorder.

(Id.)

The ALJ further found that these impairments,

individually or in combination, did not meet or medically equal one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1. (Tr. 590-93.)
Because he found that Mr. Padilla’s impairments did not meet or equal a listed
impairment, the ALJ went on to assess Mr. Padilla’s residual functional capacity (“RFC”). The
ALJ stated that
[a]fter careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except he is able to lift twenty pounds occasionally
and lift or carry ten pounds frequently, and push or pull the same. He is able to
walk or stand for six hours per eight-hour day and sit for six hours per eight-hour
day with normal breaks. He may occasionally climb ramps and stairs, but never
ladders, ropes and scaffolds. He may occasionally stoop, crouch, kneel and crawl.
He must avoid more than frequent exposure to extreme cold, unprotected heights
and moving machinery. He is able to understand, remember, and carry out simple
instructions and make commensurate work related decisions and adjust to routine
changes in the work setting. He is able to maintain concentration, persistence,
and pace for two hours at a time throughout the workday with normal breaks.
(Tr. 594.) Based on the VE’s testimony, the ALJ concluded that Mr. Padilla was unable to
perform any past relevant work, but that considering Mr. Padilla’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national economy
that Mr. Padilla could perform, and he was therefore not disabled. (Tr. 602-04.)
On December 17, 2015, the Appeals Council issued its decision denying Mr. Padilla’s
request for review and upholding the ALJ’s final decision. (Tr. 575-79.) On February 11, 2016,
Mr. Padilla timely filed a Complaint seeking judicial review of the Commissioner’s final
decision. (Doc. 1.)

4

II. Standard of Review
Judicial review of the Commissioner’s denial of disability benefits is limited to whether
the final decision6 is supported by substantial evidence and whether the Commissioner applied
the correct legal standards to evaluate the evidence. 42 U.S.C. § 405(g); Hamlin v. Barnhart,
365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).
In making these determinations, the Court must meticulously examine 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). In other words, the Court does not reexamine
the issues de novo. Sisco v. U.S. Dep’t. of Health & Human Servs., 10 F.3d 739, 741 (10th Cir.
1993). The Court will not disturb the Commissioner’s final decision if it correctly applies legal
standards and is based on substantial evidence in the record.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. Substantial evidence is “more
than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007). A decision “is not based on substantial evidence if it is overwhelmed by other evidence
in the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The Court’s examination of the record as a
whole must include “anything that may undercut or detract from the [Commissioner’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,
489 F.3d at 1084 (quoting Zoltanski v. Fed. Aviation Admin., 372 F.3d 1195, 1200 (10th Cir.
6

A court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which is generally the ALJ’s
decision. 20 C.F.R. §§ 404.981, 416.1481. This case fits the general framework, and the Court will therefore
review the ALJ’s decision as the Commissioner’s final decision.

5

2004)). Thus, the Court “may not displace the agency’s choice between two fairly conflicting
views,” even if the Court would have “made a different choice had the matter been before it de
novo.” Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).
“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 omitted). As
such, even if a reviewing court agrees with the Commissioner’s ultimate decision to deny
benefits, it cannot affirm that decision if the reasons for finding a claimant not disabled were
arrived at using incorrect legal standards, or are not articulated with sufficient particularity.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). “[T]he record must demonstrate that the
ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of
evidence.” Id. at 1009-10. Rather, the ALJ need only discuss the evidence supporting his
decision, along with any “uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.” Id.; Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.
2014).
III. Applicable Law and Sequential Evaluation Process
Disability under the Social Security Act is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Act 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 in the national economy.” 42 U.S.C. § 423(d)(2)(A). To
qualify for disability insurance benefits, a claimant must establish a severe physical or mental

6

impairment expected to result in death or to last for a continuous period of twelve months, which
prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A);
Thompson v. Sullivan, 987 F.2d 1482, 1486 (10th Cir. 1993).
When considering a disability application, the Commissioner uses a five-step sequential
evaluation process. 20 C.F.R. §§ 404.1520 and 416.920; Bowen v. Yuckert, 482 U.S. 137, 140
(1987). At the first four steps of the evaluation process, the claimant must show that: (1) he is
not engaged in “substantial gainful activity”; and (2) he 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) his impairment(s) meet or equal one of the Listings7 of presumptively disabling
impairments; or (4) he is unable to perform his “past relevant work.”

20 C.F.R. §§

404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan 399 F.3d at 1261. If the claimant can show
that his impairment meets or equals a listed impairment at step three, the claimant is presumed
disabled. However, if at step three the claimant’s impairment does not meet or equal a listed
impairment, before moving on to step four of the analysis, the ALJ must consider all of the
relevant medical and other evidence, including all of the claimant’s medically determinable
impairments whether “severe” or not, and determine what is the “most [the claimant] can still
do” in a work setting despite his physical and mental limitations. 20 C.F.R. §§ 404.1545(a)(1)(3), 416.945(a)(1)-(3). This is the claimant’s RFC. 20 C.F.R. §§ 404.1545(a)(1) & (a)(3),
416.945(a)(1) & (a)(3). The claimant’s RFC is used at step four to determine if he can perform
his past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(e), 416.920(a)(4), 416.920(e). If
the claimant establishes that he cannot, the burden of proof then shifts to the Commissioner at
step five of the sequential evaluation process, to show that the claimant is able to perform other

7

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

7

work in the national economy, considering his RFC, age, education, and work experience. Id.;
Grogan, 399 F.3d at 1261.
Although the claimant bears the burden of proving disability in a Social Security case,
because such proceedings are nonadversarial, “[t]he ALJ has a basic obligation in every social
security case to ensure that an adequate record is developed during the disability hearing
consistent with the issues raised.” Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359,
360-61 (10th Cir. 1993); Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006). “This is true
despite the presence of counsel.” Henrie, 13 F.3d at 361. “The duty is one of inquiry and factual
development,” id., “to fully and fairly develop the record as to material issues.” Hawkins v.
Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). This may include, for example, an obligation to
obtain pertinent medical records or to order a consultative examination. Madrid, 447 F.3d at
791-92. The duty is triggered by “some objective evidence in the record suggesting the existence
of a condition which could have a material impact on the disability decision requiring further
investigation.” Hawkins, 113 F.3d at 1167.
IV. Analysis
Mr. Padilla asserts two arguments in support of his Motion: (1) the ALJ did not properly
assess Mr. Padilla’s RFC; and, (2) the ALJ erred at step five in finding that other jobs Mr. Padilla
can perform exist in significant numbers. (Doc. 23 at 9-15.) The Court finds that the ALJ
applied the correct legal standards in assessing Mr. Padilla’s RFC and finding that other jobs
Mr. Padilla can perform exist in significant numbers, and substantial evidence supports his
determinations.

8

A.

RFC

Mr. Padilla argues that substantial evidence does not support the ALJ’s assessment of
Mr. Padilla’s RFC. (Doc. 23 at 9-12.) Specifically, Mr. Padilla argues that the ALJ failed to
properly consider Mr. Padilla’s ability to sustain work activities and his complaints of fatigue
and pain. (Id.) The Commissioner responds that the ALJ carefully considered the entire record,
including Mr. Padilla’s statements regarding the intensity, persistence, and limiting effects of his
symptoms, and that substantial evidence supports the ALJ’s determination of Mr. Padilla’s RFC.
(Doc. 25 at 4-10.)
Assessing a claimant’s RFC is an administrative determination left solely to the
Commissioner “based on the entire case record, including objective medical findings and the
credibility of the claimant’s subjective complaints.” Poppa v. Astrue, 569 F.3d 1167, 1170-71
(10th Cir. 2009); see also 20 C.F.R. §§ 404.1546(c) and 416.946(c) (“If your case is at the
administrative law judge hearing level or at the Appeals Council review level, the administrative
law judge or the administrative appeals judge at the Appeals Council . . . is responsible for
assessing your residual functional capacity.”); see also SSR 96-5p, 1996 WL 374183, at *2 (an
individual’s RFC is an administrative finding). In assessing a claimant’s RFC, the ALJ must
consider the combined effect of all of the claimant’s medically determinable impairments, and
review all of the evidence in the record. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013);
see 20 C.F.R. §§ 404.1545(a)(2) and (3) and 416.945(a)(2) and (3). The ALJ must consider and
address medical source opinions and give good reasons for the weight accorded to a treating
physician’s opinion. 20 C.F.R. § 404.1527(c)(2); SSR 96-8p, 1996 WL 374184, at *7. If the
RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the
opinion was not adopted. SSR 96-8p, 1996 WL 374184 at *7.

9

Further, the ALJ’s “RFC

assessment must include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts . . . and nonmedical evidence.” Wells, 727 F.3d at 1065
(quoting SSR 96-8p, 1996 WL 374184, at *7). When the ALJ fails to provide a narrative
discussion describing how the evidence supports each conclusion with citations to specific
medical facts and nonmedical evidence, the court will conclude that his RFC assessment is not
supported by substantial evidence. See Southard v. Barnhart, 72 F. App’x 781, 784-85 (10th Cir.
2003). The ALJ’s decision must be sufficiently articulated so that it is capable of meaningful
review. See Spicer v. Barnhart, 64 F. App’x 173, 177-78 (10th Cir. 2003) (unpublished).
Here, the ALJ’s RFC assessment that Mr. Padilla is able to do light unskilled work is
sufficiently articulated and supported by substantial evidence. Langley, 373 F.3d at 1118. The
ALJ’s RFC assessment included an organized and thorough narrative of Mr. Padilla’s
impairments, medical history and records, medical source statements, hearing testimony, and
third-party statement. (Tr. 594-602.) The ALJ applied the correct legal standards in evaluating
the medical evidence by explaining the weight he accorded to the State agency examining
medical consultants.8 See Hamlin, 365 F.3d at 1215 (“If an ALJ intends to rely on a nontreating
physician or examiner’s opinion, he must explain the weight he is giving to it.”) The ALJ
discussed the assessments of Dr. Amy Kogut and Dr. Natavan Karimova regarding Mr. Padilla’s
ability to do work-related physical activities and explained why he determined that Mr. Padilla
was capable of doing light work.9

8

The ALJ discussed the conflict between Dr. Barbara

The Administrative Record includes no treating source opinions regarding Mr. Padilla’s RFC.

9

The ALJ accorded great weight to Dr. Kogut’s opinion that Mr. Padilla’s hepatitis C did not appear to significantly
limit his physical function. (Tr. 396, 595.) The ALJ also accorded great weight to Dr. Karimova’s opinion that Mr.
Padilla was capable of medium work. (Tr. 510, 598.) The ALJ explained, however, that he did not find claimant to
be capable of medium work because radiologic studies of Mr. Padilla’s knees and cervical and lumbar spine
demonstrated mild degenerative changes. (Tr. 539-44, 598.) The ALJ also stated that, based on these findings, he
limited Mr. Padilla to occasional stooping and crouching. (Id.)

10

May-Valencia’s and Dr. Cathy Simutis’ opinions regarding Mr. Padilla’s ability to do workrelated mental activities, and adequately explained the weight he accorded each of their opinions
and why he accorded less weight to Dr. May-Valencia’s opinion.10 The ALJ properly considered
the relevant factors and the evidence in making his credibility determination. Finally, the ALJ
thoroughly explained how the evidence supported his conclusions.
1.

Sustained Work Activities

Mr. Padilla specifically argues that the ALJ failed to focus on Mr. Padilla’s ability to
sustain work activities and that the record clearly supported Mr. Padilla’s reports that he was
unable to work due to fatigue.11 (Doc. 23 at 10.) SSR 96-8p instructs that, in assessing RFC,
“the adjudicator must discuss the individual’s ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or
an equivalent work schedule), and describe the maximum amount of each work-related activity
the individual can perform based on the evidence available in the case record.” SSR 96-8p, 1996
WL 374184, at *7.

Tenth Circuit case law instructs that an ALJ’s findings regarding a

claimant’s ability to sustain work activities are sufficient when they are not general, specifically
10

On March 20, 2009, Dr. May-Valencia diagnosed Mr. Padilla with mood disorder with mixed features due to
hepatitis C, polysubstance dependence in full remission, and a personality disorder. (Tr. 385.) She assigned a GAF
score of 48 indicating serious mental health symptoms. (Id.) On August 11, 2011, Dr. Simutis diagnosed
Mr. Padilla with adjustment disorder with depressed mood, personality disorder, and chronic pain due to medical
condition. (Tr. 504.) She assigned a GAF score of 55 indicating moderate mental health symptoms. (Tr. 505.)
Dr. Simutis assessed only mild limitations in Mr. Padilla’s ability to do work-related mental activities. (Id.) The
ALJ gave more weight to Dr. Simutis’ opinion than to Dr. May-Valencia’s opinion. (Tr. 595.) He explained that
Dr. Simutis had a more complete set of medical records. (Id.) In addition, he found Dr. May-Valencia to be overly
sympathetic to Mr. Padilla’s presentation at the examination and to his attempts to adapt to life after incarceration.
(Id.) The Court’s review of the record indicates that Mr. Padilla reported to Dr. May-Valencia on March 20, 2009,
that he was living on the street in his car, in contrast to his February 26, 2009 statement in his Adult Function
Report, that he had recently moved in with his mother. (Tr. 386.) Mr. Padilla also reported to Dr. May-Valencia
that he had attempted suicide several times in the past. (Tr. 386.) However, on August 11, 2011, Mr. Padilla
reported to Dr. Simutis that he had made only one suicide attempt, when he was a teenager; and, on August 29,
2011, Mr. Padilla reported to Dr. Karimova that he never had suicidal thoughts or ideation and had never attempted
suicide. (Tr. 503, 507.)
11

Although the ALJ found that Mr. Padilla’s medically determinable impairments could reasonably be expected to
cause his alleged symptoms, he found that Mr. Padilla’s statements concerning the intensity, persistence, and
limiting effects of his symptoms were not credible. (Tr. 594); see Section IV.A.2., infra.

11

account for a claimant’s exertional abilities, and are based on the medical evidence of record.
See Wells, 727 F.3d at 1075 (finding that the ALJ’s discussion regarding the claimant’s ability to
sustain work activities was sufficient where the findings were not general, but accounted for
specific exertional abilities that were supported by a discussion of the medical evidence record).
Here, the ALJ’s findings are more than sufficient and clearly apply correct legal
standards. The ALJ discussed the exertional strength demands required for light work. Based on
medical opinion evidence,12 the ALJ determined that Mr. Padilla was able to lift twenty pounds
occasionally and lift or carry ten pounds frequently, and push or pull the same, walk or stand for
six hours per eight-hour day, and sit for six hours per eight-hour day with normal breaks.
(Tr. 593.) Thus, the ALJ specifically addressed Mr. Padilla’s ability to perform and sustain the
seven strength demands related to exertional capacity, i.e., sitting, standing, walking, lifting,
carrying, pushing, and pulling. SSR 96-8p, 1996 WL 374184, at *5.
The ALJ also addressed Mr. Padilla’s nonexertional capacity for work-related activities.
For example, he assessed postural limitations related to climbing ramps, stairs, ladders, ropes,
and scaffolds, and to stooping, crouching, kneeling and crawling. (Tr. 593.) The ALJ assessed
environmental limitations related to extreme cold, unprotected heights, and moving machinery.
(Tr. 594.) Finally, the ALJ considered Mr. Padilla’s residual capacity to perform work-related
mental activities. Based on medical opinion evidence,13 the ALJ assessed that Mr. Padilla was
able to understand, remember, and carry out simple instructions, make commensurate work
related decisions, adjust to routine changes in the work setting, and maintain concentration,
persistence, and pace for two hours at a time throughout the workday with normal breaks. (Tr.

12

See fn. 9, supra.

13

The ALJ accorded great weight to Dr. Simutis’ opinion that Mr. Padilla had mild limitations in his ability to
perform work-related mental activities. (Tr. 505, 598.)

12

594.) Thus, the ALJ complied with the requirements of SSR 96-8p and made specific findings
regarding the maximum amount of work-related activity that Mr. Padilla could perform on a
sustained basis in an ordinary work setting. SSR 96-8p, 1996 WL 374184, at *7. As such, there
is no error in the ALJ’s RFC assessment as to this issue. Wells, 727 F.3d at 1075.
2.

Credibility Assessment

Mr. Padilla also argues that the ALJ failed to properly credit his complaints of fatigue and
pain in determining his RFC. (Doc. 23 at 10-12.) More specifically, Mr. Padilla argues that the
ALJ failed to consider that his persistent efforts to obtain treatment for his pain and fatigue
enhanced his allegations of disability. (Doc. 23. at 11.) “A claimant’s subjective allegation of
pain is not sufficient in itself to establish disability.” Thompson, 987 F.2d at 1488 (citing Gatson
v. Bowen, 838 F.2d 442, 447 (10th Cir. 1988)). Instead, before an ALJ need even consider any
subjective evidence of pain or other symptoms, the claimant must first prove by objective
medical evidence the existence of a pain or fatigue producing impairment that could reasonably
be expected to produce the alleged disabling pain and fatigue. Id. (citing Luna v. Bowen, 834
F.2d 161, 163 (10th Cir. 1987)). If a claimant does so, the ALJ must then consider whether there
is a “loose nexus” between the proven impairment and the subjective complaints of pain. Id. If
there is a loose nexus, the ALJ considers all of the evidence, both objective and subjective, to
determine whether the pain is disabling.

Id.

Even if pain is not disabling, it “is still a

nonexertional impairment to be taken into consideration, unless there is substantial evidence for
the ALJ to find that the claimant’s pain is insignificant.” Thompson, 987 F.2d at 1491.
The first step in the three-step analysis of subjective symptoms is to determine whether
objective medical evidence demonstrates the existence of a pain- or other symptom-producing
impairment. Here, the ALJ determined that Mr. Padilla had the severe impairments of cirrhosis

13

of the liver, hepatitis C, degenerative disc disease, osteoarthritis in the lower leg, personality
disorder, adjustment disorder, and depressive disorder. (Tr. 590.) Thus, Mr. Padilla proved by
objective medical evidence the existence of pain- and fatigue-producing impairments.
Thompson, 987 F.2d at 1488. As such, the ALJ was required to determine whether there is a
“loose nexus” between Mr. Padilla’s proven impairments and his subjective complaints, and then
decide whether Mr. Padilla’s complaints of disabling pain and fatigue are credible. Id. at 1489.
The ALJ did so here. (Tr. 594, 595-602.)
“Credibility determinations are peculiarly the province of the finder of fact, and we will
not upset such determinations when supported by substantial evidence.” Wilson v. Astrue, 602
F.3d 1136, 1144 (10th Cir. 2010) (quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(internal quotation omitted)). Nevertheless, an ALJ’s credibility finding “should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.”
Id.; see also SSR 16-3p, 2016 WL 1119029, at *9 (“[I]t is not sufficient for our adjudicators to
make a single, conclusory statement that ‘the individual’s statements about his or her symptoms
have been considered’ or that ‘the statements about the individual’s symptoms are (or are not)
supported or consistent.’”). When assessing a claimant’s credibility, the ALJ considers:
(1) The claimant’s daily activities;
(2) The location, duration, frequency, and intensity of the individual’s pain or other
symptoms;
(3) Factors that precipitate or aggravate the symptoms;
(4) The type, dosage, effectiveness, and side effects of any medication the claimant takes
or has taken to alleviate symptoms;
(5) Treatment, other than medication, the claimant receives or has received for his
symptoms;
(6) Any measures other than treatment the claimant uses or has used to alleviate his
symptoms;
(7) Any other factors concerning the individual’s functional limitations and restrictions
due to his symptoms.

14

SSR 96-7p14, 1996 WL 374186, at *2. Further, in determining the credibility of pain testimony,
the ALJ should also ordinarily consider such factors as
the frequency of medical contacts, . . . subjective measures of credibility that are
peculiarly within the judgment of the ALJ, the motivation of and relationship
between the claimant and other witnesses, and the consistency or compatibility of
nonmedical testimony with objective medical evidence.
Thompson, 987 F.2d at 1488 (citing Hargis v. Sullivan, 945, F.2d 1482, 1489 (10th Cir. 1991)
(quoting Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988))). Tenth Circuit precedent
“does not require a formalistic factor-by-factor recitation of the evidence . . . [s]o long as the ALJ
sets forth specific evidence he relies on in evaluating the claimant’s credibility.” Poppa v.
Astrue, 569 F.3d at 1171 (quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)); see
also Thompson, 987 F.2d at 1490 (no “talismanic requirement that each factor . . . be
addressed”).
In the present matter, the ALJ addressed many of these factors when evaluating
Mr. Padilla’s claims and the ALJ’s credibility findings are closely and affirmatively linked to
substantial evidence. In reaching his credibility determination, the ALJ discussed the medical
evidence, function reports, and Mr. Padilla’s testimony. (Tr. 594-602.) In terms of daily
activities, the ALJ discussed the inconsistency of Mr. Padilla’s reports of his daily activities,
both internally and with other record evidence. (Tr. 600.) For instance, the ALJ discussed that,
in his February 26, 2009 Adult Function Report, Mr. Padilla indicated that he required assistance
to dress, bathe, care for his hair, and shave, and required prompting to brush his teeth and
reminders to take his medications.15 (Id.) Mr. Padilla also reported that he was unable to do any

14

On March 16, 2016, the Social Security Administration superseded SSR 96-7p when it issued SSR 16-3p, 2016
WL 1119029. It became effective on March 28, 2016. SSR 16-3p, 2016 WL 1237954, at *1. SSR 96-7p was in
effect at the time of the ALJ’s determination in this case.

15

Mr. Padilla was living with his mother at this time. (Tr. 245, 260.)

15

household chores because of constant pain and fatigue. (Id.) On February 20 and 25, 2009,
however, Mr. Padilla’s mother reported that he was able to dress, bathe, groom, feed, and toilet
himself independently, that he was able to drive a car and shop at the grocery store, and that he
did not require any reminders to take his medications. (Id.) The ALJ also discussed that on
March 28, 2009, Mr. Padilla reported to Dr. Kogut that he could stand for about one hour out of
a total of eight hours, walk on level ground for about two hours or one mile, sit without
problems, lift 30 to 50 pounds, drive a car, and do household chores such as sweeping, mopping,
vacuuming, cooking, and washing dishes. (Id.) The record supports these findings. (Tr. 246-47,
254-55, 255-56, 394.)
The Court’s review of the record further demonstrates that on August 11, 2011,
Mr. Padilla reported to Dr. Simutis that he showered every other day and dressed daily, and was
able to fix meals, grocery shop, and do laundry. (Tr. 504.) He also reported that he spent his
days taking care of his mother, watching television, reading the paper, doing crossword puzzles,
and cleaning up after himself. (Id.) On August 29, 2011, Mr. Padilla reported to Dr. Karimova
that he could take care of, feed, dress, and bathe himself. (Tr. 507.) He also reported that he
cooked, did dishes, vacuumed, and mopped. (Id.) Dr. Karimova further noted that although
Mr. Padilla complained of lumbar pain, he was able to flex down and take his shoes off and put
them back on without any problems. (Tr. 510.) On April 29, 2015, Mr. Padilla testified he could
cook for himself and shower. (Tr. 647.) Thus, the record fully supports the ALJ’s finding that
Mr. Padilla provided inconsistent descriptions of his daily activities, and that his descriptions
were also inconsistent with his mother’s observations. This is a proper basis on which to
discount Mr. Padilla’s credibility. See 96-7p, 1996 WL 374186, at *5-*616 (adjudicator will

16

See fn. 14, supra. The corresponding reference in the current SSR is found at SSR 16-3p, 2016 WL 1119029, at
*8.

16

consider the consistency of the individual’s own statements with other information in the case
record, including observations and statements made under other circumstances).
The ALJ also discussed the fact that Mr. Padilla made inconsistent reports to healthcare
providers about his alcohol use. (Tr. 600.) Specifically, the ALJ discussed that on April 27,
2010, Mr. Padilla told caregivers at Healthcare for the Homeless that he had been sober for two
years, but that on May 15, 2010, he was transported by paramedics to the University of New
Mexico Hospital (“UNMH”) emergency room for intoxication, loss of consciousness, and
assault. (Id.) The ALJ also discussed Mr. Padilla’s testimony that he had had drinking lapses
“four or five times” or “a few times” since he was released from prison in 2005. (Id.) The
record supports these findings. (Tr. 493, 496, 638-42, 647.) The Court’s review of the record
further demonstrates that on March 28, 2009, Mr. Padilla reported to Dr. Kogut that his
alcoholism was not an active problem for him and that he drank about four beers every two
weeks. (Tr. 394.) On March 22, 2010, Mr. Padilla was transported by paramedics to the
emergency room of the Christus Saint Vincent Regional Emergency Medical Center for
intoxication and assault. (Tr. 458-89.) On May 11, 2011, Mr. Padilla told healthcare providers
at the University of New Mexico (“UNM”) Gastroenterology Clinic that he had not used alcohol
since the early 1990s, while on September 7, 2011, he told them that he had had no alcohol for
two years, and on December 9, 2011, that he consumed one to two beers at a time every two
weeks. (Tr. 535, 547, 568.) On July 10, 2012, Mr. Padilla reported to healthcare providers at the
UNM Orthopedic Clinic that he did not drink. (Tr. 896.) On October 7, 2012, Albuquerque
Police Department officers found Mr. Padilla “down and out”; he was taken to the UNMH’s
emergency department, where he reported that he had drunk twelve beers. (Tr. 892.) On
August 23, 2013, Mr. Padilla reported to healthcare providers at the UNM Gastroenterology

17

Clinic that he “rarely” drank alcohol and that his last drink was two weeks ago. (Tr. 887.) On
January 10, 2014, healthcare providers at the UNM Gastroenterology Clinic noted that
Mr. Padilla reported he had been alcohol free for seven months, but that he failed to report being
taken by ambulance to the UNMH emergency room on November 9, 2013, for intoxication,
where he had a blood alcohol level of 411 milligrams per deciliter and left without seeing a
provider. (Tr. 884-85.) Thus, the record amply supports the ALJ’s finding that Mr. Padilla made
inconsistent reports to healthcare providers about his alcohol use. This is also a proper basis on
which to discount Mr. Padilla’s credibility. 96-7p, 1996 WL 374186, at *5-*617; see also
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (ALJ properly relied on inconsistent
statements about claimant’s alcohol use to support negative conclusions about claimant’s
veracity).
The ALJ also discussed that caregivers had expressed doubt about Mr. Padilla’s
credibility. (Tr. 600.) For instance, the ALJ noted that on May 11, 2010, Mr. Padilla presented
to Healthcare for the Homeless seeking “levels” for his hepatitis C in preparation for his
upcoming disability hearing. (Id.) The ALJ stated that Mr. Padilla also requested a motel
voucher, alleging he had “new back pain” that did not allow him to carry bags for his roommate
anymore. (Id.) As the ALJ discussed, healthcare providers noted that Mr. Padilla was “tense,
manipulative, poorly redirected/focused,” and in no acute distress. (Id.) The record supports this
finding, which is a proper basis on which to assess Mr. Padilla’s credibility. (Tr. 491); 96-7p,
1996 WL 374186, at *5-*6.18

17

See fn. 16, supra.

18

See fn. 16, supra.

18

The ALJ discussed that Mr. Padilla had not received psychiatric care or treatment since
he left prison in 2005,19 and that he had not been compliant with doctors’ instructions regarding
psychiatric medications. (Tr. 601.) Before the ALJ may rely on the claimant’s failure to pursue
treatment or take medication to support his determination of noncredibility, he or she should
consider “(1) whether the treatment at issue would restore claimant’s ability to work; (2) whether
the treatment was prescribed; (3) whether the treatment was refused; and if so, (4) whether the
refusal was without justifiable excuse.”

Thompson, 987 F.2d at 1490.

The ALJ did not

explicitly address these factors here.20 However, the balance of the ALJ’s credibility analysis is
supported by substantial evidence in the record and any error in not directly addressing these
factors is harmless. See Branum v. Barnhart, 385 F.3d 1268, 1274 (10th Cir. 2004) (although the
court expressed concern that the ALJ had relied on claimant’s failure to pursue treatment to find
claimant’s allegations of disabling pain were not credible, the court found that the balance of the
ALJ’s credibility analysis was supported by substantial evidence).
Mr. Padilla argues that the ALJ should have focused on Mr. Padilla’s persistent efforts to
obtain treatment for his pain and fatigue due to hepatitis C. (Doc. 23 at 11-12.) The Court is not
19

Mr. Padilla was in prison from 1994 to 2005. (Tr. 386, 394, 503.)

20

The ALJ did indirectly address these factors. The ALJ noted that healthcare providers at the UNM
Gastroenterology Clinic first told Mr. Padilla on December 9, 2011, that his score on the depression screen was too
high for hepatitis C treatment. (Tr. 569, 599.) They instructed Mr. Padilla to completely stop smoking and drinking
and to return in three months. (Id.) On March 2, 2012, Mr. Padilla returned and stated that due to a recent ankle
injury he was not interested in pursuing hepatitis C treatment. (Tr. 898-99.) Mr. Padilla returned to the clinic
seventeen months later on August 23, 2013, and was told again that he was not a good candidate for hepatitis C
treatment because of his depression score. (Tr. 599, 888.) The record supports that Mr. Padilla was referred for
psychiatric treatment, and that “[i]f this [could] be addressed, then the patient might be a good candidate.” (Tr.
888.) The ALJ discussed Mr. Padilla’s testimony that healthcare providers prescribed Zoloft for his depression, but
that he never took it because he believed they “told [him] to save it” until he started treatment for his hepatitis C.
(Tr. 602, 636, 643.) Elsewhere in the determination, the ALJ discussed that Mr. Padilla told Dr. Simutis on
August 11, 2011, that he had been prescribed anti-depressants in the past and took them for one day but stopped
because the side effects, i.e., a decreased libido, outweighed the benefits. (Tr. 503, 507, 510, 597.) The record
further supports that Mr. Padilla received a referral for psychiatric treatment on August 23, 2013, but on January 10,
2014 reported that “they were unable to treat him.” (Tr. 884.) He also reported that he had gotten a prescription
from his primary care provider for an anti-depressant, but had not filled it. (Id.)

19

persuaded. The ALJ did discuss Mr. Padilla’s efforts to obtain treatment for, and the medical
findings related to, his hepatitis C21 as well as his musculoskeletal pain.22 (Tr. 597-99.) The
ALJ also questioned Mr. Padilla at length at the Administrative Hearing about his efforts to
obtain treatment for hepatitis C and the status of his back and knee pain. (Tr. 636-45.) The ALJ
discussed Mr. Padilla’s testimony as follows:
[Mr. Padilla] described his symptoms as muscle weakness, lack of energy, and
fatigue. He said he felt like there was “no blood in [his] system” and he
complained of severe fatigue. He explained he had suffered from hepatitis C for
twenty-five years and the hepatitis C had led to cirrhosis. His body had “shut
down.” The claimant testified he had only had a few drinks since his release from
prison, and he did not have a drug problem. He said he had never had a positive
drug test and he had never been charged for a drug-related offense.
[Mr. Padilla] testified he had been incarcerated from 1995 through 2004. After he
was released from prison, he worked through a temporary agency. His chronic
fatigue made it difficult for him to maintain attendance. He was fired from jobs
for missing too much work. He left other jobs because he could not do the work.
The claimant described his primary problem as fatigue with back pain and
spasms. He also had problems with his knees, and doctors had given him
injections in the knees.
[Mr. Padilla] admitted he had never been treated for hepatitis C. Doctors told him
he was not an “appropriate candidate.” He testified he was attempting to get
treatment at the time of the hearing but doctors had insisted he take care of some
dental problems before starting a treatment program.23 He had to wait for
21

The ALJ discussed that Mr. Padilla reported to Dr. Kogut that he was diagnosed with hepatitis C in 1994, but that
he did not see a gastroenterologist for his hepatitis C until May 11, 2011. (Tr. 595, 597.) The ALJ also discussed
that Mr. Padilla presented six times to the UNM Gastroenterology Clinic over the course of four years – three times
in 2011, once in 2012, once in 2013, and once in 2014; providers at this clinic instructed him to completely stop
drinking and smoking. (Tr. 597-99.) He was informed on December 9, 2011, and again on August 23, 2013, that he
was not a good candidate for hepatitis C treatment due to his depression score. (Id.) At his last visit, on January 20,
2014, providers noted their concern that Mr. Padilla reported he had been sober for seven months, but failed to
report a recent visit to the UNMH emergency department for alcohol intoxication with a blood alcohol level of .411.
(Id.) The record supports these findings. (Tr. 394, 535-36, 546-48, 567-69, 884-88, 898-99.)
22

The ALJ discussed Mr. Padilla’s radiologic studies for knee and back pain in May 2011. (Tr. 597.) The ALJ
discussed that: (1) on January 7, 2015, Mr. Padilla had bilateral knee steroid injections, (Tr. 599); (2) on
February 24, 2015, he had trigger point injections for his neck and lumbar spine, which were partially helpful, (Tr.
600); and, (3) on May 22, 2015, an MRI of his lumbar and cervical spine was unremarkable. (Id.) The record
supports these findings. (Tr. 539, 541, 543, 860-62, 871-72, 976-77, 932-33.)
23

Mr. Padilla stated that he had not taken care of a wisdom tooth that required pulling because he was “tired of
needles.” (Tr. 638.)

20

insurance coverage to get the treatment he needed.24 The claimant argued that his
occasional use of alcohol was not the reason he was not receiving treatment for
hepatitis C. The claimant testified he was taking no anti-depressant medications
at the time of the hearing. He admitted doctors had prescribed Zoloft, but he said
he was “saving it” until he started treatment for hepatitis C.
The claimant testified he had suffered from back pain for many years. Doctors
had given him trigger point injections that seemed to help his neck but not his low
back. He was scheduled to have an MRI and to see a spine specialist. The
claimant also complained of knee pain. He said injections in his knees had been
helpful for about two months, but he had to wait four months between injections.
(Tr. 602.) Mr. Padilla also testified that prison healthcare providers had offered him treatment
for hepatitis C while in prison, but that he did not have it because it was too close to his release
and he would not have been able to finish the treatment. (Tr. 634.) Mr. Padilla testified that
when he was released from prison he needed to work, did not have insurance, and did not know
he was eligible for insurance through University of New Mexico Care. (Id.) He further testified
that he obtained insurance in 2009. (Id.)
Ultimately the ALJ determined that Mr. Padilla’s allegations of disabling pain and fatigue
were not entirely credible because the descriptions of his daily activities were inconsistent, his
reported use of alcohol to healthcare providers was inconsistent, and other healthcare providers
expressed doubt regarding Mr. Padilla’s truthfulness.

(Tr. 600-01.)

The ALJ further

summarized that his RFC was supported because there was an absence of urgency on the part of
doctors regarding treatment of Mr. Padilla’s hepatitis C, the medical treatment provided was
conservative, and the radiologic studies of Mr. Padilla’s back, neck, and knees were benign. (Tr.
602.) The record supports these findings.

24

At the Administrative Hearing on May 29, 2015, Mr. Padilla testified that he qualified for Medicaid in June/July
2014 and began taking care of his teeth as instructed. (Tr. 636-38.) He also testified that he had not seen providers
at the UNM Gastroenterology Clinic since January 20, 2014, but was trying to get an appointment. (Tr. 637.)

21

The ALJ properly evaluated Mr. Padilla’s allegations of pain and fatigue in light of the
relevant credibility factors and supported his credibility finding with specific evidence. Poppa,
569 F.3d at 1171; see Kepler, 68 F.3d at 391 (“[W]e will not upset credibility determinations
when supported by substantial evidence.”). Because the ALJ applied the correct legal standards
in evaluating the evidence, and substantial evidence supports his credibility determination, the
Court will not disturb the ALJ’s findings in this regard.
B.

Step Five Findings

Mr. Padilla argues that the ALJ erred at step five in finding that other jobs Mr. Padilla
can perform exist in significant numbers. (Doc. 23 a 12-15.) Specifically, Mr. Padilla argues
that there is no indication the ALJ analyzed the factors listed in Trimiar v. Sullivan, 966 F.2d
1326, 1330 (10th Cir. 1992), in making this finding. (Id.) Mr. Padilla further argues that, based
on the number of jobs the VE identified in the national economy, there are not a significant
number of jobs Mr. Padilla could perform in New Mexico. (Id.) The Commissioner argues that
Mr. Padilla’s reliance on Trimiar is inapposite because in that case the VE testified only to the
number of jobs available in the regional economy, while here the VE testified to the number of
jobs available in the national economy; and, Mr. Padilla has not argued that the number of jobs
available nationally is insignificant. (Doc. 25 at 10-11.)
The Tenth Circuit has emphasized that “the issue of numerical significance entails many
fact-specific considerations requiring individualized evaluation” and, as such, “the evaluation
‘should ultimately be left to the ALJ’s common sense in weighing the statutory language as
applied to a particular claimant’s factual situation.’” Allen v. Barnhart, 357 F.3d 1140, 1144
(10th Cir. 2004) (quoting Trimiar, 966 F.2d at 1330). In Trimiar, the issue was whether 650 to
900 jobs existing in the region constituted a significant number. 966 F.2d at 1329-32. The court

22

noted several factors courts may consider in evaluating the “significant number” issue, including:
(1) the level of claimant’s disability; (2) the reliability of the vocational expert’s testimony;
(3) the distance claimant is capable of traveling to engage in the assigned work; (4) the isolated
nature of the jobs; and, (5) the types and availability of such work. Id. at 1330. The court
ultimately determined that the ALJ had considered these factors, and that substantial evidence
supported his decision. Id. at 1332.
A number of subsequent Tenth Circuit cases have addressed the application of Trimiar
and the issue of what constitutes a significant number of jobs. In Allen, the court remanded
when it determined that the ALJ had erroneously relied on two jobs that were in direct conflict
with his RFC findings to find that significant jobs existed, and that “he never had occasion to
decide if the one hundred surveillance jobs alone constituted a significant number under the
statute.” 357 F.3d at 1144. Similarly, in Chavez v. Barnhart, 126 F. App’x 434 (10th Cir. 2005),
the court remanded because two of the jobs described by the VE conflicted with the Dictionary
of Occupational Titles, and the ALJ did not have an opportunity to evaluate whether the 199
parking lot attendant jobs in the region, standing alone, existed in significant numbers. Id. at
436. In Norris v. Barnhart, 197 F. App’x 771 (10th Cir. 2006), the court remanded and directed
the ALJ to consider the Trimiar factors because it was unclear whether he had found the numbers
of each identified job, standing alone, to be significant in light of claimant’s inability to sit for
more than 45 minutes, which could preclude her from driving long distances to work. Id. at 777.
In Stokes v. Astrue, 274 F. App’x 675 (10th Cir. 2008), in contrast, the court held that no
reasonable factfinder could determine that suitable jobs did not exist in significant numbers
where there were 11,000 regionally available jobs and 152,000 nationally available jobs. Id. at
684. In Rogers v. Astrue, 312 F. App’x 138 (10th Cir. 2009), the court implied that 11,000

23

nationally available jobs was a significant number. Id. at 142. In Raymond v. Astrue, 356 F.
App’x 173 (10th Cir. 2009), the claimant argued that a significant number of jobs must exist in
the regional economy before an ALJ can avoid a disability finding and that 385 rental clerk jobs
in the region was insufficient. Id. at 177. The court rejected the claimant’s argument, holding
that the controlling statutes, federal regulations, and case law all indicate that the proper focus is
generally on jobs in the national, not regional, economy.25 Id. The court further held that
Trimiar does not hold that only regional jobs are relevant, or that a court must engage in a
factorial analysis when the number of jobs available is much larger. Id. at 178, n. 2. Finally, in
Botello v. Astrue, 376 F. App’x 847 (10th Cir. 2010), the claimant argued that the ALJ had failed
to consider his traveling distance pursuant to Trimiar as directed by the court on remand. Id. at
849-51. The Botello court held that Trimiar did not require ALJs to engage in a multi-factorial
analysis to assess whether there are significant jobs in the regional economy, and upheld the
ALJ’s significant numbers ruling based solely on the number of jobs the VE identified as
available in the national economy. Id.
The Court is persuaded that the ALJ was not required to do a multi-factorial analysis to
assess whether a significant number of jobs Mr. Padilla could perform existed in New Mexico.
Raymond, 356 F. App’x at 178, n. 2; Botello, 376 F. App’x at 850-51. The ALJ considered
Mr. Padilla’s impairments, and gave due consideration to the education and experience of the
25

The Court stated that in 42 U.S.C. § 423(d)(2)(A), for example, Congress prescribed that “[a]n individual shall be
determined to be under a disability only if . . . [he cannot] 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 . . . ‘[w]ork
which exists in the national economy’ means work which exists in significant numbers either in the region where
such individual lives or in several regions of the country.” Raymond, 356 F. App’x at 177 (emphasis added); see
also 20 C.F.R. § 416.966(c) (“We will determine that you are not disabled if your residual functional capacity and
vocational abilities make it possible for you to do work which exists in the national economy.”); Jensen v. Barnhart,
436 F.3d 1163, 1168 (10th Cir. 2005) (“The Commissioner met her five-step burden of proving that there are
sufficient jobs in the national economy for a hypothetical person with Jensen’s impairments.”); Grogan v. Barnhart,
399 F.3d 1257, 1261 (10th Cir. 2005) (noting that the claimant must show his impairments prevent him from
performing his past work, and then the burden shifts to the Commissioner to show that the claimant can perform
work in the national economy)); Hamlin v. Barnhart, 365 F.3d 1208, 1224 (10th Cir. 2004) (noting that jobs need
only exist within “the regional or national economy”) (emphasis added)).

24

VE. (Tr. 650, 653.) There was no evidence that Mr. Padilla had limitations that would preclude
him from traveling certain distances to work. The VE identified jobs that were available in the
national economy, not isolated, and specific to Mr. Padilla’s RFC. (Tr. 654.) Finally, the VE
identified 27,000 nationally available jobs in the aggregate, a number well above the 11,000
nationally available jobs the Tenth Circuit previously implied constituted a significant number.
Rogers, 312 F. App’x at 142. The Court will not disturb the Commissioner’s final decision
because it correctly applied legal standards and substantial evidence supports it.
V. Conclusion
For the reasons stated above, Mr. Padilla’s Motion to Reverse or Remand for Rehearing
is DENIED.
_____________________________________
KIRTAN KHALSA
United States Magistrate Judge
Presiding by Consent

25