Branchal v. Social Security Administration
ORDER by Magistrate Judge Kevin R. Sweazea denying 18 Motion to Remand to Agency (sls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO REVERSE AND
Plaintiff seeks review of the Commissioner’s determination that she is not disabled under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. With the consent of the parties
to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b), the
Court has examined the administrative record as a whole and considered Plaintiff’s Motion to
Reverse and Remand to Agency for Rehearing, filed February 19, 2017 [Doc. No. 18], the
Commissioner’s response in opposition, filed May 17, 2017 [Doc. No. 26], and Plaintiff’s Reply,
filed May 31, 2017 [Doc. No. 28]. Having so considered, the Court FINDS and CONCLUDES
that Plaintiff’s motion is not well-taken and should be denied.
I. PROCEDURAL BACKGROUND
On October 31, 2011, Plaintiff filed an application for supplemental security income,
alleging that she had been disabled since October 27, 2011, due to diabetes, thyroid, neuropathy,
back injury, anxiety, post-traumatic stress disorder (“PTSD”), depression, and hearing loss in
right ear. [Doc. No. 15-1, p. 206]. On March 1, 2012, it was determined that Plaintiff was not
disabled and her claim was denied. [Doc. No. 15-1, pp. 84, 97]. This determination was
affirmed on October 22, 2012 [Doc. No. 15-1, p. 98], and a subsequent hearing before an
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administrative law judge (“ALJ”), held on March 31, 2014, again, ended in a denial. [Doc. No.
15-1, pp. 39-51]. The ALJ’s decision became final when, on August 5, 2016, the Appeals
Council denied Plaintiff’s Request for Review. [Doc. No. 15-1, p. 6].
It is well-established that the Court’s role in reviewing the Commissioner’s decision is
limited to determining whether the ALJ’s findings are supported by substantial evidence. 42
U.S.C. § 405(g); Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). Substantial evidence
“is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Colvin, 767 F.3d 951, 954 (10th Cir. 2014) (internal citation omitted). “Evidence
is not substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005) (internal quotation
marks omitted). The Court must examine the record as a whole, “including anything that may
undercut or detract from the ALJ's findings in order to determine if the substantiality test has
been met.” Id. Yet, it is not the function of the Court to review Plaintiff’s claims de novo, and
the Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).
A. Disability Framework
“Disability,” as defined by the Social Security Act, is the inability “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 twelve months.” 42 U.S.C. § 1382c(3)(A). The Act
further adds that for the purposes of § 1382c(3)(A):
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an individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(3)(B).
When evaluating a disability claim under this standard, the ALJ employs a five-step
sequential process. 20 C.F.R. § 416.920. In the first three steps, the claimant must prove that he
or she (1) is not engaged in any substantial gainful activity; (2) has a severe physical or mental
impairment, or combination of impairments, that meets the twelve month duration requirement;
and (3) has an impairment, or combination thereof, that meets or equals a listing in 20 C.F.R. pt.
404, subpt. P, App. If the claimant meets the requirements of steps one, two, and three, he or she
is presumed to be disabled and entitled to benefits. 20 C.F.R. § 416.920(a)(4)(iii). At step four,
the claimant must show that he or she cannot engage in past relevant work. 20 C.F.R. §
416.920(4)(i)-(iv). If the disability claim survives step four, the burden shifts to the ALJ to
prove, at step five, that the claimant is able to adjust to other jobs presently available in
significant numbers in the national economy. 20 C.F.R. § 416.920(4)(v). See also Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010).
Steps four and five are based on an assessment of the claimant’s residual functional
capacity (“RFC”) which gauges “what the claimant is still functionally capable of doing on a
regular and continuing basis, despite his impairments.” Williams v. Bowen, 844 F.2d 748, 751
(10th Cir. 1988). See also 20 C.F.R. § 416.945(a)(1).
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B. The ALJ’s Determination
In his July 16, 2014 decision, ALJ Frederick E. Upshall, Jr. engaged in the sequential
analysis set forth above, first finding that Plaintiff had not engaged in substantial gainful activity
since her application date of October 27, 2011. At step two, ALJ Upshall found that Plaintiff has
severe impairments in the form of hearing loss, diabetes mellitus with neuropathy, obesity,
fibromyalgia, depression, and PTSD. [Doc. No. 15-1, p. 41]. At step three, he determined that
none of Plaintiff’s impairments—either alone or in combination—met or medically equaled the
severity of a listed impairment.
ALJ Upshall then carried out the required RFC assessment, finding that Plaintiff has the
residual functional capacity to perform light, unskilled work “except she can occasionally stoop,
crouch, kneel, crawl, and climb ramps or stairs, but never climb ladders, ropes, or scaffolds.”
[Doc. 15-1, p. 44]. ALJ Upshall further determined that Plaintiff “can perform frequent (as
opposed to constant) handling…and fingering,” that she is limited to work that does not require
frequent telephone or verbal communication, and that her work should involve only occasional
interaction with the public. [Id.]
With no past relevant work to consider at step four, ALJ Upshall proceeded to step five
where he concluded that Plaintiff was “capable of making a successful adjustment to other work
that exists in significant numbers in the national economy” and thus was not disabled. [Doc. No.
15-1, p. 50].
C. Challenges to the ALJ’s Determination
Plaintiff challenges the ALJ’s determinations at steps four and five of the analysis,
arguing that ALJ Upshall: (1) improperly evaluated the opinion evidence of agency medical
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consultant, Michael Gzaskow, M.D.;1 (2) failed to properly consider Plaintiff’s impairment of
obesity; and (3) improperly relied upon vocational expert (“VE”) evidence that conflicted with
the occupational information supplied by the Dictionary of Occupational Titles (“DOT”).
Unfortunately, Plaintiff’s pleadings are heavy on allegation but bereft of analysis.2 Not
only is this contrary to our local rules and standard procedures, but it also makes it difficult to
discern the substance of Plaintiff’s arguments. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant's opening brief”); D.N.M.LR-Civ. 7.3 (mandating that a
movant’s legal and factual assertions must be supported with authority and evidence). Even so,
the Court has considered Plaintiff’s arguments as presented and finds all three to be without
Dr. Gzaskow’s Opinion Evidence
ALJ Upshall’s decision to deny Plaintiff’s claim for disability benefits was based, in part,
on a consideration of opinion evidence provided by state agency medical consultants, including
evidence submitted by Michael Gzaskow, M.D. In his Notice of Unfavorable Decision, ALJ
Upshall mentioned the examinations conducted by each agency doctor and noted various
portions of each resulting report. [15-1, pp. 46-49]. Plaintiff contends that the ALJ’s discussion
of this evidence failed to include Dr. Gzaskow’s assessment that “Claimant has a difficult time
relating to others due to her chronic depression/anxiety and PTSD issues.” [Doc. No. 15-1, p.
The Court notes that Plaintiff originally argued that ALJ Upshall erred in evaluating the opinion evidence of both
Dr. Strain and Dr. Gzaskow. [Doc. No. 18, pp. 12-13]. Following Defendant’s response, however, Plaintiff
modified her argument to only include the allegations regarding Dr. Gzaskow. [Doc. No. 28, pp. 1-2].
While Plaintiff does cite case law and Social Security regulations, she fails to tether these citations to her
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While ALJ Upshall did not specifically mention the above-cited statement in question, he
did note that “the opinions are [sic] Dr. Brady, Dr. Werner, and Dr. Gzaskow supports [sic] the
findings that the claimant retains the ability to perform a reduced range of light work with simple
tasks and occasional interaction, as defined herein.” [Doc. No. 15-1, p. 49] (emphasis added).
Clearly, any “difficulty” Plaintiff has in relating to others was both considered and accepted as a
limiting factor in Plaintiff’s RFC assessment.3
Plaintiff’s social limitations were also explicitly noted in VE Pamela Bowman’s
testimony that Plaintiff could not work in occupations such as Escort Vehicle Driver or Order
Clerk because of their public interaction component. [Doc. No. 15-1, p. 79]. Further, while ALJ
Upshall was required to consider all of the evidence of record, he was not required to discuss
every piece of evidence before him. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
Accordingly, Plaintiff’s argument must fail.
2. Consideration of Obesity
Plaintiff next argues that although ALJ Upshall identified obesity as a severe impairment,
he failed to consider its effect on Plaintiff’s RFC. In support, Plaintiff points to several areas in
the record that discuss her impairment of morbid obesity and its accompanying symptoms,
concluding, without explanation, that the ALJ did not assess the matter adequately. [Doc. No.
18, p. 14, Doc. No. 28, p. 1].
When obesity is at issue, the ALJ must assess the effect it has on a claimant’s RFC,
taking into account its functional effects when combined with other impairments. SSR 02-1P,
The Court finds it worth mention that Dr. Gzaskow’s statement regarding Plaintiff’s ability to interact with others
was not the only such evidence before the ALJ. On page twelve of Petitioner’s Disability Determination
Explanation, for example, it is noted that Plaintiff is able to “interact adequately with co-works and supervisors.”
[Doc. No. 15-1, p. 96].
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2002 WL 34686281 (Sep. 12, 2002). The ALJ may not make assumptions in this regard, but
instead must “evaluate each case based on the information in the case record.” Id.
In his Findings of Fact and Conclusions of Law, ALJ Upshall specifically noted that he
had “given due consideration to the claimant’s obesity in assessing the claimant’s residual
functional capacity and, in this case, limiting the claimant to the performance of less than a full
range of light work.” [Doc. 15-1, p. 41]. At step four of his analysis, ALJ Upshall further stated
that Plaintiff’s obesity “did not require the use of an assistive device for ambulation….her body
habitus did not affect her respiratory function, nor did it result in sleep apnea….[and] she did not
suffer from edema of her extremities.” [Doc. 15-1, p. 45].
Additionally, ALJ Upshall gave “great weight” to the medical opinions of Drs. Eileen
Brady and Mark Werner; both of whom concluded that Plaintiff could perform a reduced range
of light work. [Doc. No. 15-1, p. 48] In making their determinations, both doctors specifically
noted that Plaintiff had postural limitations due in large part—although not exclusively—to her
obesity. [Doc. No. 15-1, pp. 93, 107]. ALJ Upshall also explicitly rejected Dr. Em Ward’s
opinion that Plaintiff was likely limited to sedentary work due to her obesity related back
problems. [Doc. No. 15-1, p. 48]. In so doing, he explained that Dr. Ward’s findings were
contrary to the evidence of record. [Id.]
While ALJ Upshall could have engaged in a more particularized discussion of the
functional effects of Plaintiff’s obesity, his assessment of the matter complied with SSR 02-1P.
Additionally, Plaintiff has not provided any evidence to suggest that her obesity resulted in
greater functional limitations than those identified by the ALJ; and, case law indicates that
without such evidence, the Court must reject Plaintiff’s claim. See Rose v. Colvin, 634 F. App'x
632, 637 (10th Cir. 2015) (unpublished) (upholding an RFC determination that did not mention
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obesity specifically and explaining that Plaintiff failed to offer evidence that her obesity resulted
in functional limitations); Smith v. Colvin, 625 F. App'x 896, 899 (10th Cir. 2015) (denying a
challenge to the ALJ’s obesity evaluation and noting that the Plaintiff “has not shown that her
obesity alone, or in combination with other impairments, resulted in any further limitations”);
Arles v. Astrue, 438 F. App'x 735, 740 (10th Cir. 2011) (unpublished) (“[Plaintiff] does not
discuss or cite to any evidence showing that obesity further limited his ability to perform a
restricted range of sedentary work”).
3. Identified Occupations
Finally, Plaintiff argues that ALJ Upshall failed to reconcile the occupational evidence
provided by VE Pamela Bowman with the information contained in the DOT, in violation of
SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000).
Pursuant to SSR 00-4P, before an ALJ may rely upon evidence provided by a VE, he or
she must investigate whether the evidence conflicts with the information found in the DOT and,
if so, “obtain a reasonable explanation for the apparent conflict.” SSR 00-4P, 2000 WL 1898704
(Dec. 4, 2000) *4. See also Haddock v. Apfel, 196 F.3d 1084, 1090-91 (10th Cir. 1999) (holding
that an ALJ has the burden to develop the vocational evidence at step five of a disability
determination and to resolve conflicts between evidence provided by a VE and the occupational
information supplied by the DOT).
In the case at bar, ALJ Upshall elicited testimony from VE Pamela Bowman to help him
determine whether any jobs existed in the national economy that could be performed by someone
with Plaintiff’s limitations. [Doc. 15-1, p.50]. Before beginning his examination of VE Bowan,
ALJ Upshall asked her to keep her testimony consistent with the DOT, “to the extent possible,”
and to advise him of any inconsistencies. [Doc. 15-1, p. 77].
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Following this admonishment, VE Bowman was given a hypothetical involving an
individual with an RFC identical to the one assigned to Plaintiff. Based on the limitations
presented, VE Bowman testified that the hypothetical individual could perform the light,
unskilled jobs of laundry folder (DOT #361.587-010), housekeeper/office cleaner (DOT
#323.687-014), and hand polisher (DOT #709.687-010). [Doc. 15-1, pp. 77-78]. ALJ Upshall
deemed this testimony to be consistent with the information contained in the DOT and,
ultimately, determined that Plaintiff is not disabled. [15-1, p. 50].
Plaintiff contends that the descriptions in the DOT for laundry folder, housekeeper/office
cleaner, and hand polisher require capabilities outside of her assessed RFC. In regard to the job
of laundry folder, Plaintiff claims that it requires frequent stooping, whereas she is limited to
occasional stooping per her RFC.4 Turning to the job of housekeeper/office cleaner, Plaintiff
avers that such positions require an individual to render personal assistance to patrons, yet she is
limited to occasional interaction with the public. As to the job of hand polisher, Plaintiff states
that she is limited to only frequent handling and fingering with the right dominant hand, but that
this position requires constant handling.
Even if the Court were to assume that Plaintiff’s limitations preclude her from working as
a laundry folder or a hand polisher, substantial evidence supports ALJ Upshall’s determination
that Plaintiff is able to work as a housekeeper/office cleaner. As a result, any inconsistencies
between the VE’s testimony and Plaintiff’s RFC would not be fatal to the Commissioner’s
decision. See, e.g., Lax v. Astrue, 489 F.3d 1080, 1089 (10th Cir. 2007).
Each occupation listed in the DOT is assigned a numerical code that corresponds to
various factors. A job’s relationship to the worker functions of data, people, and things is
In her response, the Commissioner concedes this point. [Doc. No. 26, p.12]. The Court notes that the stooping
requirements to which the parties refer are found in the Selected Characteristics of Occupations Defined in the
Revised Dictionary of Occupational Titles (“SCO”), not the DOT, yet neither party cites to this reference.
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reflected in the fourth, fifth, and sixth digits of the occupational code, respectively. DICOT App.
B, 1991 WL 688701 (Jan. 1, 2016). Not only is the occupation of housekeeper, (DOT #323.687014), assigned the lowest “people” function rating of eight (8), but the DOT also specifically
notes that its relationship to people is “Not Significant.” DICOT 323.687-014, 1991 WL 672783
(Jan. 1, 2016). Consequently, Plaintiff’s contention that this occupation conflicts with her
“occasional public interaction” limitation is meritless.
In addition, VE Bowman testified that there are 800,000 housekeeping/office cleaning
jobs available in the national economy and 1,000 jobs available in New Mexico. [Doc. No. 15-1,
p. 78]. Thus, even if the occupations of laundry folder and hand polisher were rejected, Plaintiff
is still left with a suitable job option that exists in significant numbers in both the national and
regional economies. See, e.g., Stokes v. Astrue, 274 F. App'x 675, 684 (10th Cir. 2008)
(unpublished) (finding that 152,000 jobs available in the national economy qualifies as a
For the reasons set forth above, the Court concludes that the Commissioner’s rejection of
Plaintiff’s disability claim was based upon substantial evidence. Accordingly, the decision must
stand. See Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992)
(“As long as substantial evidence supports the ALJ's determination, the Secretary's decision
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Reverse and Remand to
Agency for Rehearing [Doc. No. 18] is hereby DENIED.
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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