Gurule v. Social Security Administration
MEMORANDUM OPINION AND ORDER Denying 19 MOTION to Remand to Agency for Rehearing with Supporting Memorandum by Magistrate Judge Carmen E. Garza. (mhr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV-16-0229 CG
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Plaintiff’s Motion to Reverse and
Remand for Rehearing, with Supporting Memorandum (the “Motion”), (Doc. 19), filed
October 31, 2016; Defendant Commissioner Nancy A. Berryhill’s Brief in Response to
Plaintiff’s Motion to Reverse and Remand the Agency’s Administrative Decision (the
“Response”), (Doc. 23), filed January 30, 2017; and Plaintiff’s Reply in Support of
Motion to Reverse and Remand for Rehearing (the “Reply”), (Doc. 24), filed February
On February 8, 2012, Mr. Gurule filed an application for disability insurance
benefits and on May 26, 2012, he filed an application for supplemental security income
benefits. (Administrative Record (“AR”) 18). Mr. Gurule alleged disability beginning on
December 1, 2009 in both applications. (AR 18). His applications were denied initially
on August 15, 2012, (AR 114-117, 118-120), and again upon reconsideration on
February 21, 2013. (AR 123-124, 125-127). Mr. Gurule filed his request for a hearing on
March 21, 2013, (AR 128-129), and a hearing was held on February 20, 2014 before
Administrative Law Judge (“ALJ”) Michelle K. Lindsay. (AR 32-71). Mr. Gurule and
Judith Beard, an impartial vocational expert (“VE”), testified at the hearing. (AR 32-71).
Mr. Gurule was represented at the hearing by attorney Christopher S. O’Connor. (AR
The ALJ issued her opinion on June 26, 2014, finding that Mr. Gurule was not
disabled. (AR 15-31). Mr. Gurule filed an application for review by the Appeals Council,
which was summarily denied, (AR 7-9), making the decision of the ALJ the final decision
of the Commissioner of the Social Security Administration (the “Commissioner”) for
purposes of this appeal.
Through new counsel, Kevin Sanders and Michael Armstrong, Mr. Gurule argues
that the ALJ committed reversible error by failing to: (1) perform a function-by-function
analysis of work-related abilities; (2) formulate a credibility analysis that is supported by
substantial evidence; (3) find that Mr. Gurule was severely impaired by foot problems
and obesity; (4) develop the administrative record; and (5) rely on an adequate number
of representative jobs. (Doc. 19).
The Court has reviewed the Motion, the Response, the Reply, and relevant law.
Additionally, the Court has meticulously reviewed and considered the entire
administrative record. Because the ALJ did not commit reversible legal error and
supported her decision with substantial evidence, the Court orders that the Motion be
DENIED and the case be DISMISSED WITH PREJUDICE.
Standard of Review
The standard of review in a Social Security appeal is whether the
Commissioner’s final decision is supported by substantial evidence and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir.
2008) (citing Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1497-98
(10th Cir. 1992)). If substantial evidence supports the ALJ’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, 1118 (10th Cir. 2004); Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003). A court should meticulously review the entire record but should neither
re-weigh the evidence nor substitute its judgment for that of the Commissioner. Langley,
373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court’s review is limited to the
Commissioner’s final decision, 42 U.S.C. § 405(g), which generally is the ALJ’s
decision, not the Appeals Council’s denial of review. 20 C.F.R. § 404.981; O’Dell v.
Shalala, 44 F.3d 855, 858 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365
F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ’s 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.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.
While a court may not re-weigh 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 ALJ]’s findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
For purposes of disability insurance benefits and supplemental security income,
a person establishes a disability when he 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), 42 U.S.C. §
1382c(a)(3)(A); 20 C.F.R. § 416.905(a). In light of this definition for disability, a five-step
sequential evaluation process (“SEP”) has been established for evaluating a disability
claim. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At
the first four steps of the SEP, the claimant has the burden to show that: (1) he is not
engaged in “substantial gainful activity”; that (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) either meet or equal one
of the “Listings”1 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 ALJ determines the claimant cannot engage in past relevant
work, she will proceed to step five of the evaluation process. At step five the burden of
proof shifts to the Commissioner to show the claimant is able to perform other work in
the national economy, considering his residual functional capacity (“RFC”), age,
education, and work experience. Grogan, 399 F.3d at 1257.
20 C.F.R. pt. 404, subpt. P, app. 1.
Mr. Gurule initially applied for disability benefits and supplemental security
income alleging that he suffers from a “L4-[L]5 herniated disc, bulging, pain in legs, and
carpal tun[n]el.” (AR 72).
At step one, the ALJ determined that Mr. Gurule met the insured status
requirements through September 30, 2014, and found that he had not engaged in
substantial gainful activity since December 1, 2009, the alleged onset date. (AR 20). At
step two, the ALJ concluded that Mr. Gurule was severely impaired by degenerative
disc and facet disease of the lumbar spine, right rotator cuff tear, anxiety, and
depression. (AR 21).
At step three, the ALJ considered whether Mr. Gurule’s impairments solely or in
combination met or satisfied any of the listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926. (AR 21). The ALJ ultimately
determined that none of Mr. Gurule’s impairments, solely or in combination, met or
medically equaled the severity of one of the listed impairments. (AR 21).
The ALJ proceeded to step four. First, she analyzed Mr. Gurule’s subjective
complaints of his symptoms and the objective medical evidence in the record. (AR 2325). The ALJ found that Mr. Gurule’s statements as to the intensity, persistence, and
limiting effects of his symptoms were not entirely credible. (AR 24-25). The ALJ
discussed Mr. Gurule’s medical records and considered the reports and opinions of
agency medical consultants Stephen A. Whaley, M.D., and James Wellons, M.D. (AR
The ALJ ultimately found that Mr. Gurule has the RFC to perform light work,
except he can only occasionally climb stairs and ramps. (AR 23). The ALJ additionally
limited him to occasionally stooping, crouching, kneeling, and crawling; never climbing
ladders, ropes, or scaffolds; and frequently reaching overhead with the dominant upper
extremity. (AR 23). Further, the ALJ limited Mr. Gurule to understanding, remembering,
and carrying out only simple instructions; maintaining attention and concentration to
perform simple tasks for two hours at a time without redirection; and having only
occasional contact with the general public, coworkers, and supervisors. (AR 23).
Next, the ALJ considered whether Mr. Gurule was capable of doing any of his
past relevant work. (AR 25). The ALJ explained that Mr. Gurule’s past relevant work
includes the jobs of rough carpenter and dry wall applicator, and found that in light of
the RFC finding, Mr. Gurule was not capable of performing his past work. (AR 25).
At step five, the ALJ inquired whether Mr. Gurule would be able to perform any
other work existing in significant numbers in the national economy. (AR 26-27). The ALJ
noted that Mr. Gurule was 49 years old on the alleged disability onset date and was
therefore classified as a “younger individual” in accordance with the Regulations. (AR
26). The ALJ also determined that Mr. Gurule has at least a high school education and
is able to communicate in English. (AR 26).
The VE testified at the hearing that an individual with Mr. Gurule’s same age,
education, work experience, and RFC could perform the jobs of assembler/small
products, inspector/hand packager, and electronics worker. (AR 26-27). Based on this
analysis, the ALJ concluded that because Mr. Gurule is capable of performing work
existing in significant numbers in the national economy, he is not disabled pursuant to
20 C.F.R. §§ 404.1520(g) and 416.920(g). (AR 27).
Mr. Gurule argues that the ALJ committed reversible error by failing to: (1)
perform a function-by-function analysis of work-related abilities; (2) formulate a
credibility analysis that is supported by substantial evidence; (3) find that Mr. Gurule
was severely impaired by foot problems and obesity; (4) develop the administrative
record; and (5) rely on an adequate number of representative jobs. (Doc. 19 at 2). The
Commissioner responds that the ALJ’s decision is supported by substantial evidence
and free of reversible legal error. (Doc. 23 at 2).
A. The ALJ’s Function-by-Function Analysis
First, Mr. Gurule argues that the ALJ failed to assess his work-related abilities
on a function-by-function basis. (Doc. 19 at 10). Specifically, Mr. Gurule asserts that the
ALJ overlooked his standing and walking limitations that would have narrowed the
range of light work Mr. Gurule can perform. (Doc. 19 at 10-11). The Commissioner
responds that the ALJ’s RFC was appropriate for Mr. Gurule’s limitations. (Doc. 23 at
Social Security Ruling 96-8p provides that “[t]he RFC assessment is a functionby-function assessment based upon all of the relevant evidence of an individual's ability
to do work-related activities.” SSR 96-8p, 1996 WL 374184 at *3 (July 2, 1996). “The
RFC assessment must include a narrative discussion describing how the evidence
supports each conclusion, citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p, at *7.
Courts in the Tenth Circuit have held that “the narrative discussion requirement
of SSR 96-8p ‘does not require citation to a medical opinion, or even to medical
evidence in the administrative record for each RFC limitation assessed.’” Oliva v.
Colvin, No. 13-CV-02495-PAB, 2015 WL 5719645, at *10 (D. Colo. Sept. 30, 2015)
(unpublished) (citing Crawford v. Colvin, No. 12-1046-JWLoo, 2013 WL 672955, at *4
(D. Kan. Feb. 25, 2013) (unpublished)). “However, the question of whether an ALJ has
engaged in an appropriate narrative discussion is, as a general matter, evaluated on a
case by case basis.” Id. (internal citations omitted). In any case, the concern underlying
SSR 96-8p and the requirement that the RFC be a function-by-function assessment
supported by a narrative discussion “is that, without a function-by-function analysis, an
ALJ ‘may . . . overlook limitations or restrictions that would narrow the ranges and types
of work an individual may be able to do.’” Hendron v. Colvin, 767 F.3d 951, 956 (10th
Cir. 2014) (citing SSR 96-8p, at *4).
As a result, courts have found an ALJ to have fulfilled her obligations under SSR
96-8p when it is clear from the written decision that she has considered evidence of a
claimant’s limitations and adequately explained how the evidence in the record supports
her RFC finding in order to allow for the court’s meaningful review of the decision. See
Hendron, 767 F.3d at 954; compare Lopez v. Colvin, No. 12-cv-01293-WYD, 2013 WL
5201009, at *3 (D. Colo. Sept. 16, 2013) (unpublished) (finding that the ALJ provided an
adequate narrative discussion under SSR 96-8p where the ALJ cited specific medical
facts and opinions and nonmedical evidence in assessing the RFC), and Oliva, 2015
WL 5719645, at *11 (holding that the ALJ’s narrative discussion of the evidence was
sufficient where the ALJ identified medical evidence and the subjective complaints
relied upon in formulating the RFC), with Spicer v. Barnhart, No. 02-5072, 64 Fed.
Appx. 173, 177-78 (10th Cir. May 5, 2003) (unpublished) (remanding case where the
ALJ’s narrative discussion of the evidence supporting the RFC finding provided no
indication that the ALJ considered one of the plaintiff’s diagnosed and medically
documented impairments either alone or in combination with her other impairments).
Here, the ALJ found Mr. Gurule to have the RFC to perform light work, but that
he is limited to only occasionally climbing stairs and ramps, stooping, crouching,
kneeling, and crawling; and never climbing ladders, ropes, or scaffolds. (AR 23). The
ALJ then described Mr. Gurule’s self-reports of his functional limitations, the activities he
engages in, as well as the medical evidence bolstering and detracting from his claims of
disabling functional limitations.
The ALJ reviewed Mr. Gurule’s alleged symptoms as described by Mr. Gurule in
his reports and testimony. Mr. Gurule alleged he constantly experiences extreme back,
arm, shoulder, leg, and foot pain. (AR 23-24). Mr. Gurule also stated that he
experienced weakness and numbness and had difficulty standing, walking, sitting,
lifting, and performing physical work activities. (AR 24).
The ALJ found that Mr. Gurule’s allegations were inconsistent with his daily
activities and medical record. (AR 24). Mr. Gurule reported that he is able to complete
daily activities such as caring for his dog, performing personal care needs, cooking,
washing dishes, shopping, managing his finances, and using public transportation. (AR
In addition, the ALJ noted that although the medical record shows evidence of
impairment, it does not show that Mr. Gurule is as restricted as he claims. (AR 24). The
ALJ specifically noted the x-rays and MRI scan that showed degenerative facet disease
of the lumbar spine. (AR 24). However, the medical record also showed that Mr. Gurule
refused to follow his doctors’ recommended treatment and would not continue taking
medication or going to physical therapy. (AR 24). Instead, Mr. Gurule stated that he
takes 800 milligrams of ibuprofen for his pain. (AR 25). Furthermore, the record showed
that Mr. Gurule continued to work occasionally in dry wall in 2011 and 2012, after the
onset of his alleged disability. (AR 25). Based on this evidence, the ALJ found that “the
mere fact that he could do some very heavy work, lifting over one hundred pounds, is a
strong indicator that he could have done at least light work on a regular basis.” (AR 25).
Finally, the ALJ weighed the medical opinions of state agency medical
examiners. (AR 25). The ALJ gave Dr. Whaley’s opinion that Mr. Gurule could perform
medium work with occasional postural limitation “little weight” because “evidence
received at the hearing level shows that [Mr. Gurule] suffers from shoulder pain, which
reasonably limits [him] more than initially determined.” (AR 25). By comparison, the ALJ
gave Dr. Wellons’ opinion that Mr. Gurule could perform light work with occasional
postural limitations “significant weight” because she found it to be consistent with the
medical evidence. (AR 25).
Mr. Gurule does not identify any additional evidence which the ALJ failed to
consider and only argues generally that “substantial evidence supports restrictions that
more than slightly reduce Mr. Gurule’s ability to perform a full range of light work.” (Doc.
19 at 11). The Court disagrees. As evidenced by the discussion above, the ALJ
identified the medical evidence she relied on in making her RFC determination,
explained which evidence she used to make her adverse credibility finding, and
weighed the medical opinions in the record. This is sufficient to show how the evidence
supported her RFC finding pursuant to to SSR 96-8p. See Lopez, 2013 WL 5201009, at
*3 (finding the ALJ’s decision adequate under SSR 96-8p where the ALJ cited to
specific medical facts, medical opinions, and nonmedical evidence in determining the
RFC, despite the fact that ALJ did not state specifically what evidence he relied upon in
connection with specific limitations); see also Oliva, 2015 WL 5719645, at *11.
B. The ALJ’s Credibility Analysis
Mr. Gurule argues that the ALJ’s credibility analysis is not based on substantial
evidence because the ALJ did not make findings about Mr. Gurule’s ability to walk or
stand, as discussed in part A supra. (Doc. 19 at 12). Mr. Gurule further contends that
the ALJ did not “fully credit” Mr. Gurule’s statements about the limiting effects of his
back and foot pain and his difficulty walking or standing. (Doc. 19 at 12). Mr. Gurule
asks the Court to consider his allegations of disabling pain under the Luna framework.
(Doc. 19 at 12); citing Luna v. Bowen, 834 F.2d 161, 163 (10th Cir. 1987). The
Commissioner states that the ALJ properly analyzed Mr. Gurule’s subjective complaints
according to the regulations and found that his complaints were not consistent with the
objective medical evidence. (Doc. 23 at 17).
1. Standard for Evaluating Subjective Complaints of Pain
An ALJ may only find the claimant’s pain to be disabling if it is “so severe, by
itself or in conjunction with other impairments, as to preclude any substantial gainful
employment.” See Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986) (quotations
omitted). The ALJ must consider the credibility of the claimant’s subjective testimony
about his pain, and its effect on his ability to work, in making the RFC determination.
See Madron v. Astrue, No. 06-1200, 311 Fed. Appx. 170, 175 (10th Cir. Feb. 11, 2009)
(unpublished) (citing Social Security Ruling (“SSR”) 96-7p, 1996 SSR LEXIS 4, at *6).
“Credibility determinations are peculiarly the province of the finder of fact, and we will
not upset such determinations when supported by substantial evidence. However,
findings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.” Wilson v. Astrue, 602 F.3d
1136, 1144 (10th Cir. 2010).
The framework for the proper analysis of a claimant's subjective testimony is set
out in Luna, 834 F.2d 161. The ALJ must consider:
(1) whether Claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a "loose nexus"
between the proven impairment and the Claimant's subjective
allegations of pain; and (3) if so, whether, considering all the evidence,
both objective and subjective, Claimant's pain is in fact disabling.
Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992) (citing Luna, 834 F.2d at
Mr. Gurule alleges that the ALJ did not perform the third prong of the Luna
analysis. (Doc. 19 at 13). The third prong requires the ALJ to consider all of the
evidence, both objective and subjective, to determine whether Mr. Gurule’s pain was
disabling. "Objective" evidence is any evidence, whether physiological or psychological,
that can be discovered and substantiated by external testing. Luna, 834 F.2d at 162.
"Subjective" evidence consists of statements by a claimant or other witnesses that can
be evaluated only on the basis of credibility. Id. at 162 n.2. The ALJ noted that medical
evidence demonstrated that Mr. Gurule has a degenerative facet disease of his lumbar
spine. (AR 24). Therefore, the ALJ was required to consider his claims of disabling pain
and decide whether she believed him. Luna, 834 F.3d at 163; see also 42 U.S.C. §
To determine whether a claimant’s statements of his symptoms are believable, or
credible, the ALJ must consider certain criteria in addition to the medical evidence in the
record. 20 C.F.R. § 404.1529(c). The so-called “credibility factors” include the: (1)
nature of the claimant’s daily activities; (2) levels of medication and their effectiveness;
(3) frequency of medical contacts; (4) and consistency of non-medical testimony with
objective medical evidence. See Branum v. Barnhart, 385 F.3d 1268, 1273-74 (10th Cir.
2004) (quotation omitted). A formal factor-by-factor review of the evidence is not
required. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
2. The ALJ’s Credibility Determination
The ALJ found that Mr. Gurule’s “statements concerning the intensity,
persistence and limiting effects of these [pain] symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” (AR 2425). The ALJ based this finding on Mr. Gurule’s self-reported daily activities, his medical
records showing that he did not comply with his doctor’s recommendations, and his
work activity. (AR 24-25).
Mr. Gurule continues to argue that the ALJ did not (1) make any findings
regarding Mr. Gurule’s ability to walk and stand; (2) link the evidence to the credibility
finding; and (3) dispute Mr. Gurule’s testimony that he was not able to perform the
duties required when he attempted to work. (Doc. 19 at 13-14). In section A, supra, the
Court discussed the fact that the ALJ considered Mr. Gurule’s ability to walk and stand;
therefore, the Court will not discuss the evidence again in this section.
As for Mr. Gurule’s second argument that the ALJ did not link the evidence in the
record to the credibility finding, the ALJ stated that she considered the evidence in the
record. (AR 24). Unless there is some indication otherwise, the Court will take the ALJ’s
word when she states that she considered all of the evidence. See Flaherty v. Astrue,
515 F.3d 1067, 1071 (10th Cir. 2007). Here, there is no such indication, since the ALJ’s
credibility determination was made alongside the RFC findings, where she thoroughly
discussed the medical evidence, opinions, and testimony. (AR 23-25). As discussed in
detail above, the ALJ’s findings are supported by the record; therefore, the Court finds
that the ALJ’s credibility finding was “closely and affirmatively linked to substantial
evidence” in the record. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
Finally, Mr. Gurule argues that the ALJ improperly considered work performed
after his disability onset date, as he was unable to perform all of the job duties. (Doc. 19
at 14). The ALJ considered the fact that Mr. Gurule performed dry wall work during 2011
and 2012 in her credibility analysis. (AR 25). The ALJ stated that “[a]lthough [the] work
activity did not rise to the level of substantial gainful activity, it does indicate that [Mr.
Gurule’s] daily activities have, at least at times, been somewhat greater than [he] has
generally reported.” (AR 25).
The Commissioner has stated that “[o]ne strong indication of the credibility of an
individual’s statements is their consistency, both internally and with other information in
the case record . . . including . . . efforts to work.” SSR 96-7p, 1996 WL 374186, at *5-6
(July 2, 1996). Further, the Tenth Circuit has previously upheld an ALJ’s adverse
credibility finding where the claimant had previously worked with longstanding
impairments, suggesting that those conditions would not currently prevent work. Cowan
v. Astrue, 552 F.3d 1182, 1191 (10th Cir. 2008); see generally Ruybal v. Astrue, No.
2:07-cv-01060-KBM, Doc. 23, at *23-25 (discussing Tenth Circuit cases and cases from
other circuits which expressly acknowledge that work efforts are a proper consideration
in the credibility analysis).
In any case, the ALJ did not rely solely on Mr. Gurule’s past work history to make
the credibility determination. Therefore, the Court finds that the ALJ’s credibility finding
is otherwise supported by substantial evidence.
C. The ALJ’s Step Two Analysis
Mr. Gurule argues that the ALJ erred in finding that his foot condition was not
severe at step two and by not discussing his obesity. (Doc. 19 at 14-17). In this case,
the ALJ found that Mr. Gurule’s degenerative disc and facet disease of the lumbar
spine, right rotator cuff tear, anxiety, and depression were severe impairments. (AR 21).
The ALJ specifically discussed that she did not find the foot condition to be severe. (AR
21). The ALJ reasoned that “the effects of this impairment have not been sustained, or
consistently present to cause more than minimal functional limitations.” (AR 21).
Although the ALJ did not specifically discuss Mr. Gurule’s obesity, she noted that she
“considered the limitations imposed by all of the claimant’s medically determinable
impairments, in combination, as supported by the objective medical evidence of record
and subjective complaints.” (AR 21).
At step two, “only those claimants with slight abnormalities that do not
significantly limit any basic work activity can be denied benefits without undertaking the
subsequent steps of the sequential evaluation process.” Langley, 373 F.3d at 1123
(internal quotation marks omitted). This is referred to as a “de minimus” standard. See
id. The claimant need only establish—and an ALJ need only find—one severe
impairment to avoid a denial of benefits at that step. Dray v. Astrue, No. 09-7058, 353
Fed. Appx. 147, 149 (10th Cir. Nov. 17, 2009) (unpublished). If the ALJ finds the
claimant has a severe impairment, then she may not deny benefits at step two and must
proceed to step three. See id. Therefore, “the failure to find a particular impairment
severe at step two is not reversible error as long as the ALJ finds that at least one other
impairment is severe.” Id.
Mr. Gurule’s argument that the ALJ erred at step two fails as a matter of law. At
step two, all the ALJ was required to do was determine whether Mr. Gurule suffered
from at least one severe impairment, and if so, proceed to step three of the sequential
analysis. The ALJ found that Mr. Gurule was severely impaired by degenerative disc
and facet disease of the lumbar spine, right rotator cuff tear, anxiety and depression,
and proceeded to step three; therefore, any error at step two with respect to Mr.
Gurule’s foot condition and obesity was harmless. See id. (citing Oldham v. Astrue, 509
F.3d 1254, 1256 (10th Cir. 2007)). The Court cannot find that the ALJ committed
reversible legal error at step two.
Mr. Gurule’s argument that the ALJ did not discuss his obesity at step two also
fails. Mr. Gurule did not allege disability based on obesity and although his physicians
noted his BMI, they did not diagnose Mr. Gurule as obese or identify any restrictions
due to obesity. (AR 369, 376, 380); see Romero v. Astrue, No. 06-6305, 242 Fed. Appx.
536, 542 (10th Cir. July 24, 2007) (unpublished). Mr. Gurule did not discuss his obesity
or attribute any of his restrictions to obesity in his testimony at the hearing; therefore,
the ALJ was not required to discuss Mr. Gurule’s obesity. The Court concludes that the
ALJ did not commit reversible legal error by not finding obesity to be a severe
impairment at step two or discussing it at step four.
D. The ALJ’s Failure to Order a Consultative Examination
Mr. Gurule argues that the ALJ erred in failing to develop the record in regard to
his ability to perform the physical demands of light work or the mental demands of
regular employment. (Doc. 19 at 18). Mr. Gurule contends that objective medical
evidence in the record shows “more than a ‘reasonable possibility’” that Mr. Gurule
suffers from limitations due to obesity, foot impairments, shoulder and thumb pain, and
depression and anxiety. (Doc. 19 at 19). In response, the Commissioner argues that the
ALJ did not need to order a consultative examination (“CE”) because she did not need
to resolve any inconsistency in the evidence and there was sufficient evidence for her to
make a determination regarding Mr. Gurule’s disability. (Doc. 23 at 16).
In a social security disability case, the claimant bears the burden to prove his
disability. Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (citing Hawkins v.
Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)). However, since disability hearings are
nonadversarial, the ALJ has a duty “to ensure that an adequate record is developed
during the disability hearing consistent with the issues raised.” Id. “Ordinarily, the
claimant must in some fashion raise the issue sought to be developed which, on its
face, must be substantial. Specifically, the claimant has the burden to make sure there
is, in the record, evidence sufficient to suggest a reasonable possibility that a severe
impairment exists.” Hawkins, 113 F.3d at 1167. The ALJ then has the responsibility “‘to
ensure that an adequate record is developed during the disability hearing consistent
with the issues raised.’” Id. at 1164 (quoting Henrie v. United States Dep’t of Health &
Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993) (citing Heckler v. Campbell, 461
U.S. 458, 471 n.1 (1982) (Brennan, J. concurring) (describing duty as one of inquiry,
requiring the decision maker “to inform himself about facts relevant to his decision and
to learn the claimant’s own versions of those facts.”)).
As the Tenth Circuit noted in Hawkins, the difficult issue is to “decide what
quantum of evidence a claimant must establish of a disabling impairment or
combination of impairments before the ALJ will be required to look further. [The Court] .
. . acknowledge[s] that the Secretary has broad latitude in ordering consultative
examinations.” 113 F.3d at 1166 (citing Diaz v. Sec’y of Health & Human Servs., 898
F.2d 774, 778 (10th Cir. 1990)). If there is a direct conflict in the medical evidence or the
medical evidence in the record is inconclusive, a CE may be required. Hawkins, 113
F.3d at 1166 (citing 20 C.F.R. § 404.1519(b); Thompson v. Sullivan, 987 F.2d 1482,
1491 (10th Cir. 1993)). Additionally, if the claimant shows that there is a “reasonable
possibility” of an impairment, the ALJ has a duty to order a CE. Id.
However, a claimant must present “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.” Id. at 1167 (citing Diaz, 898 F.2d at
777 (refusing to remand for CE where claimant failed to present “objective evidence
supporting the conclusion that he suffers from depression.”)). Medical evidence must
consist of “signs, symptoms, and laboratory findings, not only [claimaint’s] statement of
symptoms.” 20 C.F.R. § 404.1508. “Isolated and unsupported comments by the
claimant are insufficient, by themselves, to raise the suspicion of the existence of a
nonexertional impairment.” Flaherty, 515 F.3d at 1071 (quoting Hawkins, 113 F.3d at
Here, Mr. Gurule argues that the ALJ needed a CE in order to determine whether
Mr. Gurule was capable of working. (Doc. 19 at 8). However, this is not the purpose of a
CE. “Generally, only where ‘there is a direct conflict in the medical evidence requiring
resolution or where the medical evidence in the record in inconclusive, is a [CE]
required for proper resolution of disability claims.’” Fagan v. Astrue, No. 06-6261, 231
Fed. Appx. 835, 838 (10th Cir. July 3, 2007) (unpublished) (quoting Hawkins, 113 F.3d
at 1166). Here, Mr. Gurule does not identity a conflict in the evidence and he “sheds no
light on why the medical evidence was inconclusive such that the ALJ should have
ordered a [CE].” Id. Accordingly, the Court finds that the ALJ was not required to order a
CE and did not commit reversible error by not doing so.
E. The ALJ’s Step Five Determination
Finally, Mr. Gurule argues that the ALJ did not meet her burden to prove that
there are jobs existing in “significant numbers” in the national economy that Mr. Gurule
could perform based on his RFC. (Doc. 19 at 20). Mr. Gurule also states that it is not
clear what methodology the VE used to determine the number of jobs available in the
national economy. (Doc. 19 at 21). The Commissioner responds that the jobs listed by
the VE exist in significant numbers in the national economy. (Doc. 23 at 22). Further,
the Commissioner notes that the ALJ can rely on the testimony of a vocational expert.
(Doc. 23 at 21).
At the hearing, the vocational expert testified that an individual with Mr. Gurule’s
age, education, work experience, and RFC would be able to perform the requirements
of an assembler/small product with 25,000 jobs available nationally, an inspector/hand
packager with 23,000 jobs available nationally, and an electronics worker with 17,000
jobs available nationally. (AR 26-27). The ALJ found that the VE’s testimony was
consistent with the Dictionary of Occupational Titles and accepted it. (AR 27).
Mr. Gurule argues that adding up the total number of jobs available in these
career fields nationally, there is not a significant number as required by 42 U.S.C. §
423(d)(2)(A). (Doc. 19 at 21). Mr. Gurule contends that the ALJ should have used the
Trimiar factors to determine whether the number of jobs nationally rises to the
significant level. (Doc. 19 at 21), citing Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir.
The Trimiar Court addressed the question of what constitutes a significant
number of jobs under the statute. Trimiar, 966 F.2d at 1330. The Trimiar Court stated
that “[t]his Circuit has never drawn a bright line establishing the number of jobs
necessary to constitute a ‘significant number’ and rejects the opportunity to do so here,”
finding instead that each case should be evaluated individually. Id. However, the Trimiar
Court did note several factors that should go into the evaluation of significant numbers:
“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 work.” Id. (quoting Jenkins v. Bowen, 861
F.2d 1083, 1087 (8th Cir. 1988)). “[T]he issue of numerical significance entails many
fact-specific considerations requiring individualized evaluation.” Allen v. Barnhart, 357
F.3d 1140, 1144 (10th Cir. 2004). Therefore, “[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.” Trimiar, 966 F.3d at 1330 (quoting Jenkins, 861 F.3d at
1087) (internal quotation marks removed)).
Analyzing the Trimiar factors here, the ALJ determined Mr. Gurule’s level of
disability by formulating an RFC based on the evidence in the medical record and
included Mr. Gurule’s physical limitations as appropriate in the RFC. The ALJ
considered Mr. Gurule’s ability to get to work, Mr. Gurule testified that he is able to take
the bus or use his bike to travel, although it has been harder for him to ride his bike
recently. (AR 42-43). In her opinion, the ALJ noted that Mr. Gurule is able to use public
transportation. (AR 24). The ALJ does not appear to have heard testimony regarding
the “isolated nature of work,” but did elicit the number of jobs available nationally. (AR
66). Mr. Gurule disputes the number of inspector/hand packager jobs, arguing that there
are 20,400 nationally instead of 23,000, but agrees to a total number of 65,000 jobs
nationally for the careers described by the VE. The ALJ asked the VE about what jobs
Mr. Gurule could perform, whether his skills would transferable to these jobs, and
whether someone with his same RFC could perform these jobs. (AR 64-69).
Mr. Gurule questions the reliability of the VE’s testimony. (Doc. 19 at 21). Mr.
Gurule states that the VE’s methodology is unclear because she stated that there were
23,000 inspector/hand packager jobs; whereas, the Bureau of Labor Statistics indicates
20,400 jobs for inspectors and hand packagers in the plastics industry. (Doc. 19 at 21).
Vocational experts may rely on different sources of material, including, but not limited to,
publications by the Bureau of Labor Statistics. 20 C.F.R. § 404.1566(d). Therefore, the
discrepancy in the job numbers does not undercut the VE’s testimony. Further, Mr.
Gurule’s counsel questioned whether the VE was an expert at the hearing, and the ALJ
determined that the VE was “qualified to render an expert opinion.” (AR 39). The VE
testified that her opinion was consistent with the Dictionary of Occupational Titles,
except for her opinion regarding the amount of time an individual is off task and
attendance, which was based on her experience. (AR 70).
Mr. Gurule asks the Court to remand the case for the ALJ to consider the Trimiar
factors; however, it is clear from the hearing and the opinion that the ALJ already
considered these factors in determining that work exists in significant numbers in the
national economy for Mr. Gurule. Because the record indicates that the ALJ weighed
the appropriate factors, the Court will not remand the case.
For all of the foregoing reasons, the Court concludes that the ALJ did not commit
the errors alleged by Mr. Gurule. In addition, the Court finds that substantial evidence
supports the ALJ’s determinations challenged by Mr. Gurule.
IT IS THEREFORE ORDERED that Mr. Gurule’s Motion to Reverse and Remand
for Rehearing, with Supporting Memorandum, (Doc. 19), be DENIED and that this
cause of action is DISMISSED WITH PREJUDICE.
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
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