Garcia v. Social Security Administration
ORDER by Magistrate Judge William P. Lynch denying 21 Motion to Remand to Agency. (ph)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
STEVEN E. GARCIA,
NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,
MEMORANDUM OPINION AND ORDER
Steven Garcia applied for disability insurance benefits on August 3, 2012 (Administrative
Record “AR” 205), and supplemental security income on August 15, 2012 (AR 208), alleging
disability beginning on March 1, 2010 (AR 254), from “Severe gout heart problems sleep apnea
hearing loss,” “severe Gout Elbows Knees Fingers DAILY ATTACKS,” “Heart Problems,”
“Sleep Apnea,” “Hearing Loss 50 percent on each ear Ringing noise at time,” and “Arthritis
Knees both hands fingers lock” [sic] (AR 253). After his application was denied at all
administrative levels, he brought this proceeding for judicial review. The case is before me now
on his Motion to Reverse and Remand, a response filed by the Commissioner of the Social
Security Administration (“SSA”), and Garcia’s reply. (Docs. 21, 25, 28.) For the reasons
explained below, I deny Garcia’s motion and affirm the judgment of the SSA.
Nancy A. Berryhill, who is now the Acting Commissioner of the Social Security
Administration, is substituted for Acting Commissioner Carolyn W. Colvin under Rule 25(d) of the
Federal Rules of Civil Procedure.
STANDARD OF REVIEW
In reviewing the Administrative Law Judge’s (“ALJ”) decision, I must determine whether
it is supported by substantial evidence in the record and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation omitted). A decision is not
based on substantial evidence if other evidence in the record overwhelms it or if there is a mere
scintilla of evidence supporting it. Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004).
Substantial evidence does not, however, require a preponderance of the evidence. U.S. Cellular
Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir.
2003). I must meticulously examine the record, but I may neither reweigh the evidence nor
substitute my discretion for that of the Commissioner. Hamlin, 365 F.3d at 1214. I may reverse
and remand if the ALJ failed “to apply the correct legal standards, or to show us that he has
done so . . . .” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
SEQUENTIAL EVALUATION PROCESS
The SSA has devised a five-step sequential evaluation process to determine disability.
See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
(2017). If a finding of disability or nondisability is directed at any point, the ALJ will not
proceed through the remaining steps. Thomas, 540 U.S. at 24. At the first three steps, the ALJ
considers the claimant’s current work activity, the medical severity of the claimant’s
impairments, and the requirements of the Listing of Impairments. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4), & Pt. 404, Subpt. P, App’x 1. If a claimant’s impairments are
not equal to one of those in the Listing of Impairments, then the ALJ proceeds to the first of three
phases of step four and determines the claimant’s residual functional capacity (“RFC”). See
Winfrey, 92 F.3d at 1023; 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ then determines the
physical and mental demands of the claimant’s past relevant work in phase two of the fourth step
and, in the third phase, compares the claimant’s RFC with the functional requirements of his past
relevant work to see if the claimant is still capable of performing his past work. See Winfrey, 92
F.3d at 1023; 20 C.F.R. §§ 404.1520(f), 416.920(f). If a claimant is not prevented from
performing his past work, then he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
claimant bears the burden of proof on the question of disability for the first four steps, and then
the burden of proof shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137,
146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987). If the claimant cannot
return to his past work, then the Commissioner bears the burden, at the fifth step, of showing that
the claimant is capable of performing other jobs existing in significant numbers in the national
economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (discussing the five-step sequential evaluation process in detail).
Garcia is forty-one years old. (AR 80.) He graduated from high school and previously
worked as a security officer, cook, fast food worker, custodian, and parking lot attendant. (AR
38-39, 231, 241-242, 244.)
I do not address everything in the record but rather target my factual discussion to those
facts necessary to the disposition of this case.
Between 2007 and 2009, which was before the alleged onset of disability on March 1,
2010, Garcia went to the emergency room (“ER”) at least seven times for pain in various joints
caused by gout. (AR 311-316, 317-322, 323-330, 331-338, 379-384, 385-391, 461-476.) The
treatment was usually non-steroidal anti-inflammatory and narcotic medications. (See, e.g., AR
320.) It appears as though Garcia had no primary care provider (“PCP”) from 2007-2009. (See,
e.g., AR 461 (medical note from ER visit on May 10, 2007, stating “NO, PCP”); AR 313
(medical note from ER visit on December 4, 2009, stating “Patient has no PCP”).)
From the alleged onset of disability on March 1, 2010, to the end of 2010, Garcia went to
the emergency room five times and had two appointments with a PCP, Richard Aries, M.D.,
mostly for pain from gout. (AR 298-304, 305-310, 346, 347, 348, 369-371, 372-374, 375-378,
432-433, 434-435, 436-437.) The progression was as follows: an ER visit on March 7, 2010, for
pain in the right elbow from gout (AR 308-310), for which he was given an injection of
methylprednisolone (AR 310); an ER visit on September 24, 2010, for pain in the right foot that
was “not consistent with gout” (AR 299); an ER visit and imaging on September 25, 2010, for
pain in the right foot from gout (AR 375-378, 432-433), for which he was given a prescription
for indomethacin and Percocet (AR 376); a visit with Dr. Aries to establish a PCP on September
30, 2010 (AR 347-348), during which Dr. Aries prescribed allopurinol for gout (AR 347); an ER
visit and imaging on October 18, 2010, for pain in the right foot from gout (AR 372-374, 434435), for which he was prescribed indomethacin (AR 373); an ER visit on October 25, 2010, for
pain in the left elbow from gout (AR 369-371), for which he was prescribed allopurinol (AR
370); and a follow-up visit with Dr. Aries on December 3, 2010, during which Garcia was not
experiencing gout symptoms (AR 346).
In 2011, Garcia went to the ER twice and saw Dr. Aries three times for gout related pain.
(AR 344, 345, 361-363, 364-66, 448.) The progression was as follows: a visit with Dr. Aries on
February 18, 2011, where Dr. Aries noted that Garcia should use Percocet when his pain is too
severe (AR 345); a visit with Dr. Aries on February 21, 2011, during which Dr. Aries increased
the dose of allopurinol (AR 448); an ER visit on September 5, 2011, for an “acute gout flare”
(AR 365), for which he was prescribed indomethacin and oxycodone (id.); a visit with Dr. Aries
on November 22, 2011, where Garcia reported that he had not taken his medication for a few
months and had not had any gout flares (AR 344); and an ER visit on December 26, 2011, for
pain in his left elbow from gout (AR 361-363), for which he was prescribed indomethacin and
oxycodone and instructed “about important need for PCP [illegible] [and] refill of meds to
decrease recurrence of subsequent gout attacks” (AR 362).
In 2012, Garcia had two ER visits, underwent a polysomnogram, a pulmonary function
test, and an audiological test, and had a consultative examination with Kea Ann Parker, M.D.
(AR 352-354, 358-360, 392-393, 395-412, 413-421, 422-425, 430-431, 442-445, 451-453.) The
progression was as follows: an ER visit on March 12, 2012, for pain in his right knee from gout
(AR 358-360), for which he was prescribed indomethacin and oxycodone (AR 359); a nocturnal
polysomnogram on May 21, 2012, to evaluate claims of insomnia and sleep apnea (AR 395-399,
413-425), which Frank M. Ralls, M.D., interpreted to “demonstrate severe obstructive sleep
apnea” (AR 397); a pulmonary diagnostic test on May 25, 2012, for difficulty breathing, which
returned a normal result (AR 392-393); an ER visit on June 7, 2012, for hand pain after a fall
(AR 352-354, 430-431), for which he was prescribed Motrin and Percocet (AR 353); an
audiometric hearing test on October 19, 2012, which contains no narrative analysis (AR 451453); and a consultative examination with Dr. Parker on October 20, 2012 (AR 442-445), where
Dr. Parker noted, among other things, that “[f]or his severe gout, he is not currently on
medication and had no signs of joint erythema or tenderness on today’s exam, no functional
limitations” (AR 444).
These records constitute the relevant evidence the ALJ considered when he entered his
decision on November 5, 2014.
Garcia later appealed the ALJ’s denial of benefits to the Appeals Council and submitted
additional records, which span from September 2012 to June 2014. (AR 6.) The Appeals Council
made the evidence part of the record. (Id.) The evidence is as follows.
In 2012, Garcia had two ER visits and one urgent care visit for various types of pain. (AR
503-505, 505-507, 515-517, 542.) The progression was as follows: an ER visit on September 19,
2012, for back pain after sleeping “in an awkward position” (AR 506), with a diagnosis of “back
pain” and prescription for Percocet (AR 507); an ER visit on October 28, 2012, for back pain
after a fall at work (AR 503), for which he was prescribed ibuprofen (AR 504); and a visit to
Urgent Care on November 23, 2012, for elbow pain related to a “gouty flare” (AR 515), for
which he was prescribed Percocet (AR 516).
In 2013, Garcia had two follow-ups appointments from his polysomnogram, a medical
evidence evaluation completed by non-examining state agency consultant Kenneth Glass, M.D.,
and four ER visits for gout related pain. (AR 102-113, 493-495, 495-497, 498-501, 501-503,
518-521, 521-523, 541.) The progression was as follows: a visit with Dr. Ralls on January 31,
2013, where Dr. Ralls adjusted the settings on the sleep machine and refitted Garcia’s mask (AR
521-523); a second visit with Dr. Ralls on April 22, 2013 (AR 518-521), where Dr. Ralls
“encouraged” Garcia “to increase exercise as much as possible” and to “place him/her self on a
low fat/low carbohydrate/low salt diet” [sic] (AR 521); a medical evidence evaluation by Dr.
Glass on May 10, 2013 (AR 102-113), during which Dr. Glass noted that a disability adjudicator
spoke to Garcia on the phone two days earlier without difficulty (AR 111) and concluded that
Garcia was not disabled and could complete light work (AR 112-113); an ER visit on August 3,
2013, for pain in his left elbow from a gout flare (see AR 501-503), for which he received an
injection and pain medication (AR 503); an ER visit on October 31, 2013, for left foot and knee
pain (AR 498-501, 541), which was diagnosed as cellulitis and a gout flare (AR 500), and for
which he was prescribed pain medication and an antibiotic (id.); an ER visit on November 18,
2013, for left knee pain from gout (AR 495-497), for which he was prescribed indomethacin and
oxycodone (AR 497); and an ER visit on December 8, 2013, for right toe pain from gout (AR
493-495), for which he was prescribed indomethacin (AR 493).
In 2014, Garcia received a physical therapy referral, attended some physical therapy
sessions, and had an ER visit. (AR 491-492, 535-536, 537-538, 540.) The progression was as
follows: a physical therapy referral from a clinic on August 11, 2014, for treatment of back pain
and difficulty walking (AR 535-536); three physical therapy appointments that concluded with
an early discharge on March 17, 2014, “based upon noncompliance with department attendance
policies” (AR 538); and an ER visit on June 23, 2014, for left hand pain (AR 491-492, 540),
which was diagnosed as having “no clear etiology . . . but gout likely” (AR 492).
ALJ AND APPEALS COUNCIL’S DECISION
The ALJ issued his decision on November 5, 2014. (AR 28.) At step one, he determined
that Garcia has not engaged in substantial gainful activity since March 1, 2010. (AR 23.) At step
two, he found that Garcia “has the following severe impairments: gout, arthritis, bilateral hearing
loss, back pain, sleep apnea and obesity.” (Id.) At step three, the ALJ concluded that Garcia did
not have an impairment or combination of impairments that met or medically equaled anything
in the Listing of Impairments. (AR 24.)
At phase one of step four, the ALJ determined that Garcia had the RFC “to perform light
work” with the following limitations:
the claimant can lift up to 20 pounds occasionally; lift or carry up to 10 pounds
frequently in light work as defined by the regulations; he can stand or walk for
approximately 6 hours per 8 hour workday and sit for approximately 2 hours per 8
hour work day [sic], with normal breaks. The claimant should avoid concentrated
exposure to noise and should avoid work where excellent hearing is needed. The
claimant should avoid even moderate exposure to hazards.
(AR 24.) In making this determination, the ALJ found Garcia “not entirely credible” (AR 25)
and gave “great weight to the opinions of the State agency medical consultants” (AR 27).
At phases two and three of step four, the ALJ concluded that Garcia “is capable of
performing past relevant work as a fast food worker and parking lot attendant.” (AR 28.)
The ALJ also included an alternative disposition at step five, where he used the Medical
Vocational Guidelines (“Grids”) to conclude that Garcia was not disabled. (AR 28.) The Appeals
Counsel denied review, making the ALJ’s decision the final decision of the Commissioner. (AR
Garcia cites three reasons to support reversing and remanding his case. First, the ALJ’s
RFC analysis contains legal error and is contrary to substantial evidence because it is
contradicted by the later-submitted evidence considered by the Appeals Council; does not
account for Garcia’s non-exertional limitations of obesity and hearing loss; rests on an improper
credibility analysis; and rests on an undeveloped record. (See Doc. 21 at 15-23.) Second, the
ALJ’s past relevant work finding contains legal error and is unsupported by substantial evidence.
(See id. at 23-26.) And third, the ALJ’s step five finding contains legal error because it lacks
sufficient analysis. (See id. at 26-27.) I discuss each argument individually but find none to be
Garcia first argues that the evidence considered by the Appeals Council reveals an
“increase in severity and frequency of Mr. Garcia’s gout flares,” which renders Dr. Parker’s
findings “suspect” and deprives the RFC of substantial evidence support. (Id. at 17.) Garcia
relies on Chapo v. Astrue, 682 F.3d 1285, 1293 (10th Cir. 2012), where the court found error
because later submitted evidence from a treating physician rendered an earlier opinion from the
agency consulting physician “patently stale.” (Doc. 21 at 17.) The Commissioner responds that
the additional evidence “do[es] not describe functional limitations beyond those expressed in the
RFC,” and relies on Tarpley v. Colvin, 601 F. App’x 641, 644 (10th Cir. 2015) (unpublished),
where the court found no error in the ALJ’s reliance on an earlier agency consulting physician’s
opinion because nothing in later submitted opinions “would render [the agency physician’s]
opinion stale.” (Doc. 25 at 7.)
Garcia’s circumstance is more like Tarpley. The later submitted evidence does not render
Dr. Parker’s medical opinion stale because there was no “material change” in Garcia’s condition.
Tarpley, 601 F. App’x at 644. First, the frequency of gout-related medical visits did not increase.
Compare the following: from March 2010 to October 2012—which was prior to Dr. Parker’s
opinion on October 20, 2012—Garcia visited the ER and Dr. Aries nine times for gout related
pain, while from November 2012 to 2014—after Dr. Parker’s opinion—Garcia visited the ER
five times. (Compare AR 308, 345, 358, 361, 365, 369, 372, 375, 448 with AR 491, 493, 495,
498, 501.) Second, the severity of Garcia’s gout pain, measured at its most painful, has not
changed. For example, during the October 18, 2010, ER visit, Garcia reported ankle pain from
gout at a “10/10” pain level, while during the ER visit on December 8, 2013, he reported toe pain
from gout as “severe 10/10.” (Compare AR 372 with AR 493.) Lastly, the later submitted
medical evidence does not directly contradict Dr. Parker’s findings, so Chapo is inapplicable.
Garcia’s second argument about legal and substantial evidence errors in the RFC is that
the RFC fails to account for two non-exertional impairments: obesity and hearing loss. (See Doc.
21 at 17-29.)
Addressing obesity, Garcia argues that the ALJ ignored five pieces of evidence, which
violated Social Security Ruling (“SSR”) 02-1p, 2002 WL 34686281, at *6 (Sept. 12, 2002),2
which notes that “the combined effects of obesity with other impairments can be greater than the
effects of each of the impairments considered separately” and mandates that the ALJ “not make
assumptions about the severity or functional effects of obesity combined with other
impairments.” (See Doc. 21 at 17-20.) As case support, Garcia cites DeWitt v. Astrue, 381 F.
App’x 782, 785 (10th Cir. 2010) (unpublished), where the court found error under SSR 02-1p
because the ALJ, in finding an RFC of sedentary work for an obese claimant, “mistakenly
believed that [the non-examining state agency physician] had identified obesity as one of [the
claimant’s] medical conditions,” when in fact the physician “simply never mentioned obesity.”
(Doc. 21 at 18.) The Commissioner responds that the ALJ complied with SSR 02-1p because he
relied on Dr. Parker’s findings, which addressed obesity. (See Doc. 25 at 9.)
Garcia’s five pieces of evidence are as follows: his statement in 2010 that he was obese
and uncomfortable; a body mass index of forty-seven in May 2012; Dr. Parker’s statement that
Garcia’s obesity “may be a functional limitation due to difficulty operating in small places”; the
Courts defer to SSRs “unless they are plainly erroneous or inconsistent with the Social Security
Act.” Andrade v. Sec’y of Health & Hum. Servs., 985 F.2d 1045, 1051 (10th Cir. 1993) (quotation and
sleep study showing that Garcia’s obesity and sleep apnea cause him fatigue; and that obesity
contributes to his gout pain. (See Doc. 21 at 18-19.)
Applying SSR 02-1p to this case raises the following question: did the ALJ err by making
assumptions about the effects of Garcia’s obesity? He did not. He relied on Dr. Parker’s report,
which specifically identified obesity as a potential disability and largely discounted it. (See AR
26 (noting that Dr. Parker discounted obesity as a source of Garcia’s arthritis).) As for the
relationship between obesity and sleep apnea, Dr. Parker addressed them separately—which the
ALJ reasonably interpreted to mean that they did not combine to increase Garcia’s symptoms.
(See AR 444 (noting that Garcia had received “recommended treatments for gout and obesity and
sleep studies”).) As for Dr. Parker’s statement that “for [Garcia’s] obesity, this in amongst itself
may be a functional limitation due to difficulty operating in small places” (AR 444), Dr. Parker
used the term “may,” and the ALJ properly relied on the lack of a conflicting medical opinion in
the record to diminish this functional limitation. This lack of counter-evidence also distinguishes
DeWitt, where the treating physician’s RFC “essentially disqualified [the claimant] from all
sedentary work.” 381 F. App’x at 784. There is no similar disqualifying opinion here.
As for the second supposed unaddressed functional limitation—Garcia’s hearing loss—
Garcia argues that the ALJ’s analysis of Dr. Glass’s opinion contains legal error because the ALJ
took a statement out of context and adopted only one of Dr. Glass’s two recommended
limitations regarding the effect of hearing loss. (See Doc. 21 at 19.)
Garcia’s first argument—that the ALJ included Dr. Glass’s comment that Garcia “did not
use hearing assistance devices and no amplification for phone” when speaking with an agency
adjudicator (AR 26 (citing AR 111)) but omitted Dr. Glass’s comment that Garcia “stated that he
has the majority of his hearing problems with low tones and whispers” (AR 111) (see Doc. 21 at
19)—seems self-defeating. The RFC accounts for the inability to hear softer sounds because it
states that Garcia should “avoid work where excellent hearing is needed” (AR 24)—i.e., jobs
where one would need to hear low tones and whispers.
Garcia’s second argument is that the ALJ erred by incorporating Dr. Glass’s
recommendation that Garcia “should avoid work where excellent hearing is needed” into the
RFC (AR 24 (quoting AR 110)) but failing to incorporate an accompanying recommendation
that Garcia “should also not work around machinery with only auditory alarms due to decreased
hearing” (AR 110-111). The ALJ, however, accounted for the second recommendation by stating
that Garcia “should avoid even moderate exposure to hazards.” (AR 24.) Said another way,
machinery equipped with auditory alarms poses hazards to workers—hence the need for an
auditory alarm—and the RFC precludes Garcia from working around such equipment.
Garcia’s third argument about legal and substantial evidence errors in the RFC is that the
ALJ’s credibility analysis was improper. (See Doc. 21 at 20-22.) Garcia disagrees with nearly all
of the ALJ’s reasons for diminishing his credibility. (Id.)
When assessing a claimant’s credibility, the ALJ must “consider the entire case record,”
SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996),3 cite “specific reasons for the finding . . .
supported by the evidence in the case record,” id. at *2, and adequately link the substantial
evidence to the credibility determination, see Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(ordering “limited remand” because “the link between the evidence and credibility determination
[was] missing”); see also Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004) (reversing
and remanding because the ALJ’s credibility determination, which consisted of “boilerplate
Although SSR 96-7p was superseded by SSR 16-3p on March 28, 2016, see 2016 WL 1237954
(Mar. 24, 2016), both parties cite SSR 96-7p as the applicable standard (see Doc. 21 at 22; see also Doc.
25 at 10) because it was in effect when the ALJ entered his decision in 2014. SSR 16-3p uses different
phrasing but contains the same standard. See SSR 16-3p, 2016 WL 1119029, at *9 (Mar. 16, 2016).
language” that contained no reference to “the specific evidence that led the ALJ to reject
claimant’s testimony,” “did not comply with the legal standards of SSR 96–7p or Kepler”).
Here, the ALJ’s credibility analysis satisfies both SSR 96-7p and Kepler because it is
adequately supported. Specifically, in his decision, the ALJ noted: “the lack of more aggressive
treatment or even a referral to a specialist suggests the claimant’s symptoms and limitations were
not as severe as he alleged” (AR 26); “one might expect to see some indication in the treatment
records of restrictions placed on the claimant by the treating doctor” (id.); that Garcia’s “ability
to participate in such activities [of daily living] diminishes the credibility of the claimant’s
allegations of functional limitations” (AR 27); that “driving a motor vehicle by himself
demonstrates that the claimant has the physical ability to operate a vehicle and that he has the
mental capacities required to comply with the applicable traffic regulations, and to remember the
directions to and from his desired locations” (id.); Garcia’s statement at the hearing that “he
continued to seek employment after the alleged onset date” (id.); that there was “nothing of
record to contradict the State agency medical consultants’ opinions herein” (id.); and that
“[t]reatment notes in the record do not sustain the claimant’s allegations of disabling conditions”
(id.). These findings, particularly those about the lack of contradictory medical opinions, provide
the necessary link between the evidence and the credibility finding.
Garcia’s fourth and final argument about legal and substantial evidence errors in the RFC
is that the ALJ failed to adequately develop the record because he did not ask the attorney
representing Garcia if the record was complete, which meant the ALJ did not have the most
recent treatment records when making his decision. (See Doc. 21 at 23.) I find this argument
unpersuasive, primarily because Garcia was represented by counsel at the hearing, and “in a
counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring
further development.” Hawkins v. Chater, 113 F.3d 1162, 1168 (10th Cir. 1997). Neither
Garcia’s briefing nor the hearing transcript indicate that counsel identified any such issues. (See
Doc. 21 at 23; Doc. 28 at 5-6; AR 53 (conclusion of hearing where Garcia’s attorney did not
attempt to raise further issues).)
Past Relevant Work, Capacity to Perform Past Relevant Work, and Ability
to Perform Other Work Findings
Garcia argues that the ALJ’s past relevant work finding (step four phase two) and
capacity to perform past relevant work finding (step four phase three) contain three errors. First,
the finding that Garcia could perform his past relevant work as a fast food worker and parking lot
attendant was conclusory. (Doc. 21 at 24.) Second, the RFC contradicts the job requirements for
a fast food worker in the Dictionary of Occupational Titles. (Id. at 25.) And third, the finding that
Garcia could perform work as a parking lot attendant fails to satisfy the substantial gainful
activity requirement. (Id. at 26.) As for the ALJ’s ability to perform other work finding (step
five), Garcia argues that it is conclusory and fails to properly account for the three non-exertional
impairments noted in the RFC. (See id. at 26-27.)
“At the second phase of the step four analysis, the ALJ must make findings regarding the
physical and mental demands of the claimant’s past relevant work.” Winfrey, 92 F.3d at 1024.
“[F]ailure to make explicit findings on the record . . . [is] legal error under Winfrey.” Martinez v.
Astrue, 316 F. App’x 819, 824 (10th Cir. 2009) (unpublished). Yet the error is harmless when the
ALJ makes a proper alternative step five finding that there are other jobs the claimant could
perform. See id. (“Because we conclude . . . that the ALJ’s step-five finding was proper . . . the
ALJ’s Winfrey error was harmless.”). In Martinez, the court explained the relationship between
the step four and step five findings this way: “[the claimant’s] capacity to perform the specific
requirements of a past sedentary job has no bearing on her capacity to perform different
sedentary jobs at step five because the ALJ made findings regarding her specific limitations for
step-five purposes.” 316 F. App’x at 824.
As for a step five finding, the ALJ can meet his burden “either by (1) the testimony of a
[vocational expert], or (2) by reference to the Grids.” Polson v. Astrue, 508 F. App’x 705, 708
(10th Cir. 2013) (unpublished) (citing Daniels v. Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998)).
“[U]se of the Grids is foreclosed only where the ‘nonexertional impairments are significant
enough to limit the range of jobs available in a given work category.”’ Id. (citing Glass v.
Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994)).
Here, the ALJ did not err because his alternative step five finding was proper. Under
Martinez, any step four errors were rendered harmless. And, under Polson, use of the Grids was
appropriate because the ALJ noted that the non-exertional limitations did not limit the available
jobs in the light work category. (See AR 28 (“[20 C.F.R. Part 404, Subpart P, App. 2] Rule
202.20 directs a conclusion of ‘not disabled’ because the claimant can perform all or
substantially all of the exertional demands at the light level of exertion.”).)
The ALJ’s RFC is supported by substantial evidence and free of legal error. In addition,
if the ALJ erred in assessing Garcia’s past relevant work, the error was rendered harmless
because the alternative step five finding was proper. I therefore deny Garcia’s motion to remand
and affirm the decision of the Commissioner.
IT IS SO ORDERED.
William P. Lynch
United States Magistrate Judge
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