Aguilar v. Social Security Administration
ORDER by Magistrate Judge Steven C. Yarbrough granting 22 Motion to Remand to Agency. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 16-849 SCY
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER is before the Court on Plaintiff Raymond Aguilar’s Motion to Reverse
and Remand the Social Security Commissioner’s final decision denying Plaintiff disability
insurance benefits. Doc. 22. For the reasons discussed below, the Court will GRANT Plaintiff’s
motion and remand this action to the Commissioner for further proceedings consistent with this
Plaintiff is a fifty-five year old male. Plaintiff filed his initial claim for disability on
February 28, 2013, alleging disability due to back pain and bone spurs. AR 79. He alleged a
disability onset date of March 1, 2011. AR 79. Plaintiff’s claim was initially denied on May 22,
2013, and upon reconsideration on July 25, 2013. AR 22. Plaintiff filed a written request for
hearing on August 13, 2013. AR 22. The hearing was held before Administrative Law Judge
(ALJ) John Morris on November 3, 2014. AR 22. On January 30, 2015, the ALJ issued his
decision denying Plaintiff’s claim. AR 18. Plaintiff appealed the ALJ’s determination to the
Appeals Council and it granted his request for review. AR 1. The Appeals Council ultimately
found Plaintiff not disabled. AR 5.
Because the parties are familiar with Plaintiff’s medical records, the Court will reserve
discussion of the pertinent medical records for its analysis. Nevertheless, in short, Plaintiff was
involved in a motor vehicle accident in March 2011. AR 269-70. Plaintiff complained of
multiple issues following the accident, including right shoulder, right knee, and back pain. AR
269, 271. In October 2011, Plaintiff received an MRI of his shoulder which showed tendinopathy
and a lateral acromial spur. AR 239. Plaintiff presented to Michelle Ruthmann, P.A., who
assessed him as having low back pain, right shoulder arthrosis, and right shoulder rotator cuff
tendinopathy. AR 288, 295. PA Ruthmann prescribed Plaintiff naproxen. AR 288. A
subsequent MRI further showed multilevel degenerative disc disease, facet arthropathy, a
moderate disc bulge and facet arthrosis at L4-L5 resulting in a mild left lateral recess and left
neuroforaminal stenosis, and a small disc bulge at L3-L4. AR 283, 292, 437.
Plaintiff further presented to various providers over the next few years with complaints of
shoulder, back, and knee pain. Consistent with P.A. Ruthmann, these records show assessments
of rotator cuff tendinitis and ac joint degenerative joint disease. See e.g., AR 242. Plaintiff was
also assessed as suffering a right should impingement and degenerative disease of the radial
carpal and ulnar carpal joints. AR 427, 264. Plaintiff decided to forgo surgery but instead opted
for corticosteroid injections, which provided some relief. AR 244-45, 427, 440. AR 244.
On May 13, 2013, Dr. Hui Gong performed a consultative examination of Plaintiff. AR
411. Dr. Gong opined that Plaintiff had subjective tenderness in his right shoulder and lower
back. AR 415. Dr. Gong diagnosed Plaintiff with obstructive chronic back pain since the motor
vehicle accident, tendonitis in the right wrist, arthritis in the right shoulder, and possible arthritis
in the neck. AR 415-16. In his functional assessment of Plaintiff, Dr. Gong opined that Plaintiff
did not demonstrate any limitations in the ability to sit, stand, or walk in an 8-hour day and
Plaintiff therefore had no restrictions in standing, walking, sitting, or bending. AR 416. Dr.
Gong further opined that Plaintiff was capable of lifting 25 founds frequently and 50 pounds
occasionally. Finally, Dr. Gong found that Plaintiff had no restrictions in “reaching, handling,
feeling and grasping” and no other “postural or manipulative limitations.” AR 416.
In his decision, the ALJ found that Plaintiff had the residual functional capacity to
perform the full range of medium work as defined in 20 CFR 416.967(c).
Specifically, the claimant can lift up to 50 pounds on an occasional basis and up
to 25 pounds on an occasional basis; can sit, stand, and/or walk for up to six hours
in an eight-hour day; can frequently reach, grasp, and finger as opposed to
AR 26. Because the ALJ found that Plaintiff could perform his past relevant work as a furniture
upholsterer, the ALJ found Plaintiff not disabled and denied his claim. AR 29. On review, the
Appeals Council adopted the ALJ’s statements regarding the governing law, the issues in the
case, and the evidentiary facts. The Appeals Council rejected, however, the ALJ’s finding that
Plaintiff is capable of performing his past relevant work. AR 4. In so concluding, the Appeals
Council explained that Plaintiff’s work history “does not meet the requisite substantial gainful
activity requirement to be deemed past relevant work.” AR 4-5. Thus, “[w]hen an individual
demonstrates that he has no past relevant work, the burden shifts to the Commissioner to show
that there are other jobs that he can perform.” AR 5. After recognizing the ALJ’s error in
concluding that Plaintiff could perform his past relevant work, the Appeals Council utilized the
grids and concluded that Plaintiff is not disabled. AR 5. This appeal followed.
A. Disability Determination Process
A claimant is considered disabled for purposes of Social Security disability insurance
benefits if that individual 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). The Social Security Commissioner has adopted a five-step
sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R.
§ 404.1520. The steps of the analysis are as follows:
(1) Claimant must establish that she is not currently engaged in “substantial gainful
activity.” If claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or
mental impairment . . . or combination of impairments” that has lasted for at least one
year. If claimant is not so impaired, she is not disabled and the analysis stops.
(3) If claimant can establish that her impairment(s) are equivalent to a listed impairment that
has already been determined to preclude substantial gainful activity, claimant is
presumed disabled and the analysis stops.
(4) If, however, claimant’s impairment(s) are not equivalent to a listed impairment, claimant
must establish that the impairment(s) prevent her from doing her “past relevant work.”
Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence
and determines what is “the most [claimant] can still do despite [her physical and
mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant’s residual
functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the
physical and mental demands of claimant’s past work. Third, the ALJ determines
whether, given claimant’s RFC, claimant is capable of meeting those demands. A
claimant who is capable of returning to past relevant work is not disabled and the
(5) At this point, the burden shifts to the Commissioner to show that claimant is able to
“make an adjustment to other work.” If the Commissioner is unable to make that
showing, claimant is deemed disabled. If, however, the Commissioner is able to make
the required showing, the claimant is deemed not disabled.
See 20 C.F.R. § 1520(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
B. Standard of Review
A court must affirm the denial of social security benefits unless (1) the decision is not
supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in
reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec’y of Health & Human Serv., 933 F.2d
799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither
reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court’s disagreement with a
decision is immaterial to the substantial evidence analysis. A decision is supported by substantial
evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as
adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a
mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings from being supported by
substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
Similarly, even if a court agrees with a decision to deny benefits, if the ALJ’s reasons for
the decision are improper or are not articulated with sufficient particularity to allow for judicial
review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific
weighing of the evidence and “the record must demonstrate that the ALJ considered all of the
evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence
in the record. But, it does require that the ALJ identify the evidence supporting the decision and
discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.
Plaintiff raises two issues for review. Plaintiff first argues that the Appeals Council’s
residual functional capacity finding is unsupported by the evidence. Doc. 22 at 3. Second,
Plaintiff argues that the Appeals Council erroneously relied on the medical vocational guidelines
(grids) at step five without considering the effects of Plaintiff’s nonexertional limitations. Doc.
22 at 3. Because the Court concludes that the Appeals Council’s omission of the ALJ’s
restriction on Plaintiff’s ability to reach, grasp, and finger affected the applicability of the grids,
the Appeals Council’s failure to explain its omission of this limitation from its RFC is reversible
When the Appeals Council grants review and issues a decision, that decision becomes the
final and judicially reviewable decision. See Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988).
The Court reviews the Appeals Council’s decision for substantial evidence and to ensure the
appropriate rules and regulations have been followed. Id. The Appeals Council, like an ALJ,
must provide reasons for its decision. Id. at 245. Thus, if the Appeals Council rejects the ALJ’s
decision, it must fully articulate its reasons. Id.
As noted above, the ALJ found at step four that Plaintiff was capable of performing the
full range of medium work. AR 26. The ALJ further found, however, that Plaintiff “can
frequently reach, grasp, and finger as opposed to constant.” AR 26. The Appeals Council
adopted the ALJ’s analysis through step three but not did not adopt either the ALJ’s RFC or his
determination that Plaintiff could perform his past relevant work. The Appeals Council instead
found that Plaintiff could perform the full range of medium work and utilized the grids to
determine that Plaintiff was not disabled. The Appeals Council did not explain why it rejected
the ALJ’s finding regarding Plaintiff’s limitation in reaching, grasping, and fingering.
“The grids contain tables of rules which direct a determination of disabled or not disabled
on the basis of a claimant’s RFC category, age, education, and work experience.” Thompason v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (citing 20 C.F.R. 404, subpt. P, App. 2). “Under
the Secretary’s own regulations, however, the grids may not be applied conclusively in a given
case unless the claimant’s characteristics precisely match the criteria of a particular rule.” Frey v.
Bowen, 816 F.2d 508, 512 (10th Cir. 1987). While the “mere presence of a nonexertional
impairment does not preclude reliance on the grids,” Ray v. Bowen, 865 F.2d 585, 588 (10th Cir.
1990), the Social Security Administration may not rely conclusively on the grids unless it finds,
in part, “that the claimant has no significant nonexertional impairment.” Thompson, 987 F.2d at
1488. A nonexertional impairment is defined as “[a]ny impairment which does not directly affect
the ability to sit, stand, walk, lift, carry, push, or pull.” SSR 83-10. Accordingly, reaching,
grasping, and fingering are considered nonexertional impairments. Id.
Given that the omitted restriction was a nonextertional impairment, its omission was not
merely a “scrivener’s error” as contended by Defendant. Instead, its omission was a material
rejection of a portion of the ALJ’s decision. Its omission accordingly necessitated analysis by the
Appeals Council or an analysis as to why its inclusion did not preclude application of the grids to
find Plaintiff not disabled. See Reyes, 845 F.2d at 245 (“although the Appeals Council may
reject the ALJ's recommendation, that recommendation cannot be ignored. If the Appeals
Council rejects the ALJ's decision, it must fully articulate its reasons. The court then decides
‘with heightened scrutiny’ whether the Appeals Council's reasons are supported by the record.”)
(internal citations omitted). Because the Appeals Council failed to explain its reasoning for
omitting this restriction, the Appeals Council’s decision must be reversed. See id.
That said, the Court notes that although it concludes that the Appeals Council was
required to provide adequate reasons for rejecting the ALJ’s decision on this point, it does not
necessarily follow that the Court agrees with the ALJ’s initial finding. There may be sufficient
reasons to limit Plaintiff’s RFC to a full range of medium work. For instance, such a finding
would be consistent with Dr. Gong’s assessment which found no limitations in Plaintiff’s ability
to reach, finger, or grasp. But without the requisite analysis as to why the Appeals Council
rejected this portion of the ALJ’s RFC, the Court is unable to meaningfully review the Appeals
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand to Agency
for Rehearing (Doc. 22).
UNITED STATES MAGISTRATE JUDGE
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