Martinez v. Social Security Administration

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa denying 16 MOTION to Reverse and Remand Administrative Agency Decision and 17 Memorandum Brief In Support of Motion to Reverse and Remand. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MANUEL EDWARD MARTINEZ,
Plaintiff,
vs.

Civ. No. 16-1137 KK

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 13) filed March 15, 2017, in support of Plaintiff Manuel Edward Martinez’s (“Plaintiff”)
Complaint (Doc. 1) seeking review of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying
Plaintiff’s claim for Title II disability insurance benefits and Title XVI supplemental security
income benefits.

On April 28, 2017, Plaintiff filed his Motion to Reverse and Remand

Administrative Agency Decision and Memorandum Brief in Support of Motion to Reverse and
Remand (“Motion”). (Docs. 16, 17.) The Commissioner filed a Response in opposition on
June 29, 2017 (Doc. 25), and Plaintiff filed a Reply on August 2, 2017. (Doc. 26.) The Court
has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and
1383(c). Having meticulously reviewed the entire record and the applicable law and being fully
advised in the premises, the Court finds the Motion is not well taken and is DENIED.

1

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

2

Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Doc. 23.)

I. Background and Procedural Record
Claimant Manuel Edward Martinez (“Mr. Martinez”) alleges that he became disabled on
March 1, 2008, at the age of forty-five because of back injury, right knee surgery, shoulder pain,
depression, anxiety, post-traumatic stress disorder, and left elbow dislocated. (Tr. 59-60, 247,
250.3) Mr. Martinez completed the seventh grade in 1977, and worked for twenty-seven years on
oil field derricks. (Tr. 251, 269.) Mr. Martinez reported he stopped working on April 21, 2007,
due to his medical conditions. (Tr. 251.)
On September 12, 2012, Mr. Martinez filed an application for Social Security Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq. (Tr. 224-27.) He also filed an application for Supplemental Security Income (“SSI”)
under Title XVI of the Act, 42 U.S.C. § 1381 et seq.

(Tr. 210-19, 228-32.) Mr. Martinez’s

applications were initially denied on December 13, 2012. (Tr. 57, 58, 128-32.) They were
denied again at reconsideration on July 25, 2013. (Tr. 123, 124.) On September 3, 2013,
Mr. Martinez requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 144-45.)
The ALJ conducted a hearing on July 17, 2014. (Tr. 33-56.) Mr. Martinez appeared in person at
the hearing with attorney representative Wayne Walterscheid of The Jeff Diamond Law Firm.
(Id., 208.) The ALJ took testimony from Mr. Martinez (Tr. 36-47), and an impartial vocational
expert (“VE”), Casey Suggs (Tr. 47-52). On October 27, 2014, ALJ Benita A. Lobo issued an
unfavorable decision. (Tr. 9-27.) On August 16, 2016, the Appeals Council issued its decision
denying Mr. Martinez’s request for review and upholding the ALJ’s final decision. (Tr. 1-5.)
On October 13, 2016, Mr. Martinez timely filed a Complaint seeking judicial review of the
Commissioner’s final decision. (Doc. 1.)
3

Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 13) that was lodged with the Court on
March 15, 2017.

2

II. Applicable Law
A.

Disability Determination Process

An individual is considered disabled if 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) (pertaining to disability insurance
benefits); see also 42 U.S.C. § 1382(a)(3)(A) (pertaining to supplemental security income
disability benefits for adult individuals). The Social Security Commissioner has adopted the
familiar five-step sequential analysis to determine whether a person satisfies the statutory criteria
as follows:
(1)

At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”4 If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his medical condition.

(2)

At step two, the ALJ must determine the severity of the claimed physical
or mental impairment(s). If the claimant does not have an impairment(s)
or combination of impairments that is severe and meets the duration
requirement, he is not disabled.

(3)

At step three, the ALJ must determine whether a claimant’s impairment(s)
meets or equals in severity one of the listings described in Appendix 1 of
the regulations and meets the duration requirement. If so, a claimant is
presumed disabled.

(4)

If, however, the claimant’s impairments do not meet or equal in severity
one of the listing described in Appendix 1 of the regulations, the ALJ must
determine at step four whether the claimant can perform his “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 [his physical and mental] limitations.” 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant’s

4

Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less, get
paid less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity that
you do for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).

3

residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3),
416.945(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, the claimant is capable of meeting those demands.
A claimant who is capable of returning to past relevant work is not
disabled.
(5)

If the claimant does not have the RFC to perform his past relevant work,
the Commissioner, at step five, must show that the claimant is able to
perform other work in the national economy, considering the claimant’s
RFC, age, education, and work experience. If the Commissioner is unable
to make that showing, the 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. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731
(10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). The claimant has
the initial burden of establishing a disability in the first four steps of this analysis. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987). The burden
shifts to the Commissioner at step five to show that the claimant is capable of performing work
in the national economy. Id. A finding that the claimant is disabled or not disabled at any point
in the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health &
Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).
B.

Standard of Review

This Court must affirm the Commissioner’s 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); Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004);
Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d
4

1270, 1272 (10th Cir. 2008). A decision is based on substantial evidence where it is supported
by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed
by other evidence in the record[,]” Langley, 373 F.3d at 1118, or “constitutes mere conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an
ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the
ALJ considered all of the evidence,” and “the [ALJ’s] reasons for finding a claimant not
disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996).
III. Analysis
The ALJ made his decision that Mr. Martinez was not disabled at step five of the
sequential evaluation. (Tr. 25-26.) Specifically, the ALJ determined that Mr. Martinez met the
insured status requirements of the Social Security Act through December 31, 2012, and that
Mr. Martinez had not engaged in substantial gainful activity since October 30, 2009 [sic].
(Tr. 15.) He found that Mr. Martinez had severe impairments of degenerative disk disease,
borderline intellectual functioning, attention deficit hyperactivity disorder (ADHD), major
depression disorder, anxiety disorder, post-traumatic stress disorder (PTSD), cannabis
dependence, and alcohol dependence in remission. (Id.) The ALJ also found that Mr. Martinez
had nonsevere impairments of left elbow dislocation, status post right knee surgery, pectoralis
muscle strain, and a history of skin conditions. (Id.) The ALJ, however, determined that
Mr. Martinez’s impairments did not meet or equal in severity one the listings described in

5

Appendix 1 of the regulations. (Tr. 16-18.) As a result, the ALJ proceeded to step four and
found that Mr. Martinez had the residual functional capacity to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(a) except that
claimant can occasionally climb, ladders, ropes, and scaffolds. The claimant can
occasionally stoop, kneel, crouch, and crawl. The claimant would have to avoid
concentrated exposure to temperature extremes. The claimant can perform work
that is simple and routine in nature.
(Tr. 18-24.) The ALJ further concluded at step four that Mr. Martinez was unable to perform
any past relevant work. (Tr. 25.) The ALJ determined at step five that based on Mr. Martinez’s
age, education, work experience, RFC, and the testimony of the VE, there were jobs that exist in
significant numbers in the national economy that Mr. Martinez could perform. (Tr. 25-26.)
Based on the VE’s testimony, the ALJ identified three jobs that Mr. Martinez could perform:
dishwasher (DOT 318.687-010 - Kitchen Helper), cashier (DOT 211.467-018 – Pari-Mutuel
Ticket Cashier), and hand packer (DOT 920.687-146 - Repack-Room Worker). (Tr. 26.)
In support of his Motion, Mr. Martinez argues that the ALJ improperly relied on the VE’s
testimony at step five because the jobs the VE identified exceeded the ALJ’s RFC and the ALJ
failed to resolve the apparent conflicts. (Doc. 17 at 6-11.) Specifically, Mr. Martinez argues that
(1) the kitchen helper job requires a person to frequently stoop and crouch and requires frequent
exposure to extreme heat; (2) the cashier job requires a reasoning level of three which is
incompatible with the ALJ’s mental RFC limiting him to work that is simple and routine in
nature; and (3) the ALJ’s reliance on the hand packer job is not supported by substantial
evidence because the ALJ’s hypothetical question to the VE did not include occasional stooping,
kneeling and crouching. (Doc. 17 at 7-10; Doc. 26 at 2.) The Commissioner concedes that the
dishwasher (kitchen helper) job is inconsistent with the ALJ’s RFC because it requires frequent
stooping and crouching and exposure to extreme temperatures.
6

(Doc. 25 at 6.)

The

Commissioner, however, contends the ALJ’s decision is supported by substantial evidence
because Mr. Martinez is capable of doing the other two identified jobs, both of which exist in
significant numbers in the national economy. (Id. at 7-12.) The Commissioner further contends
that even if the Court were to determine that the cashier job was inconsistent with the ALJ’s
RFC, Mr. Martinez is capable of doing the hand packer job which exists in significant numbers
in the national economy. (Id. at 11.)
For the reasons discussed below, the Court finds that although the ALJ failed to resolve
the conflict between the VE’s testimony and the DOT for the jobs of dishwasher and cashier, the
ALJ nonetheless carried her burden at step five and demonstrated that significant jobs exist in the
national economy that Mr. Martinez can perform. Therefore, the ALJ’s error is harmless.
A.

The ALJ Failed to Resolve the Conflict Between the VE’s Testimony
and the DOT for the Jobs of Dishwasher and Cashier

The ALJ questioned the VE at the administrative hearing as follows:
Q:

Do you understand that if you give us an opinion which conflicts with the
information contained in the Dictionary of Occupational Titles, you need
to advise me of such conflict and the basis for your opinion?

A.

Yes, Your Honor.

...
Q.

For purpose of my next series of questions, please assume a hypothetical
person of the same age, education, vocational history as the claimant.
Further assume that he could do work at the medium level with occasional
climbing of ladders, ropes, and scaffolds. He would have to avoid – I’m
going to say, occasional stooping, kneeling, crouching, crawling. He
would have to avoid concentrated exposure to temperature extremes.
Would he be able to return to his past relevant work?

A:

No, Your Honor.

Q:

Would there be other jobs?
7

A:

Yes. Let me give you some examples.

Q:

I need to also add the work would have to be of a simple, routine nature.

A:

Dishwashers. Dishwashers. At the medium exertion, there are 3,534.
Wait. That is – hold on, Your Honor. I’m sorry. I’m giving you the
wrong numbers. One second. I pulled out Louisiana instead of
New Mexico numbers. I’m sorry about that, Your Honor. I just caught
that.
Okay. 2,569 in the State of New Mexico. In the U.S., 286,385. DOT
318.687-010.
Cashiers. 6,892; in the U.S., 1,152,113. I’ll give you an example DOT
code for that. 211.467-018.

Q:

And what exertional level would that be?

A:

That is light, unskilled, SVP 2.
Hand packers. 935; in the U.S., 325,401. DOT code 920.687-146.
These are just a few examples, Your Honor.

Q:

And the hand packer was at what exertional level?

A:

I’m sorry. That is at light.

Q:

SVP 2?

A:

Yes. Would you like another example or is that sufficient?

Q:

That will be enough. I’m just trying to see if I can –
All right. And I want to reduce him to the light exertion level with the
same non-exertional limitations, you – I might want another sample of
jobs.

A:

Yes, Your Honor. Silverware wrapper. 1,285. That is light, SVP 2,
unskilled. I’ll give you that DOT code. DOT code 318.687-018.

Q:

And how many in the U.S.?

A:

143,192.
8

(Tr. 47-50.) (Emphasis added.) The ALJ adopted the VE testimony regarding Mr. Martinez’s
ability to work as a dishwasher, cashier and hand packer, and determined that the VE’s testimony
was consistent with the information contained in the DOT. (Tr. 26.)
The Tenth Circuit has held that “an ALJ must investigate and elicit a reasonable
explanation for any conflict between the Dictionary and expert testimony before the ALJ may
rely on the expert testimony as substantial evidence to support a determination of nondisability.”
Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). After the Tenth Circuit’s holding in
Haddock, the Social Security Administration promulgated Social Security Ruling 00-4p and
further clarified the ALJ’s affirmative responsibility to ask about conflicts. SSR 00-4p instructs
that
[w]hen vocational evidence provided by a VE or VS is not consistent with
information in the DOT, the [ALJ] must resolve this conflict before relying on the
VE or VS evidence to support a determination or decision that the individual is or
is not disabled. The [ALJ] will explain in the determination or decision how he or
she resolved the conflict. The [ALJ] must explain the resolution of the conflict
irrespective of how the conflict was identified.
SSR 00-4p, 2000 WL 1898704, at *4.
1.

Dishwasher Job

The ALJ failed to resolve the apparent conflict between the VE’s testimony regarding the
dishwasher job and the DOT. Here, the ALJ asked the VE at the hearing to tell her about any
conflicts with the information contained in the Dictionary of Occupational Titles and her opinion
testimony. (Tr. 47-48.) As Mr. Martinez argues, however, and the Commissioner concedes, the
dishwasher job exceeds the ALJ’s RFC because it requires frequent stooping and crouching and

9

requires frequent exposure to extreme heat.5 (Doc. 17 at 7-8; Doc. 25 at 6.) As such, the VE’s
testimony was not consistent with the DOT and the ALJ failed to explain in the determination
how she resolved the conflict. This is error.
2.

Cashier Job

The ALJ also failed to resolve the apparent conflict between the VE’s testimony about
the cashier job and the DOT. Mr. Martinez argues that the cashier job requires a reasoning level
of three6 that is incompatible with the ALJ’s mental RFC limiting him to work that is simple and
routine in nature. (Doc. 18 at 20-22.) Mr. Martinez relies on Hackett v. Barnhart, 395 F.3d
1168, 1176 (10th Cir. 2005), in which the Tenth Circuit found that a limitation to “simple routine
work tasks” is more consistent with jobs requiring level two reasoning. (Id. at 20.) In so doing,
the Tenth Circuit agreed with the claimant that there was an apparent conflict between a
claimant’s inability to perform more than simple and repetitive tasks and the level three
reasoning required by the jobs identified. Hackett, 395 F.3d at 1176. The Commissioner argues
that Hackett does not apply here because the Tenth Circuit did not consider whether the apparent
conflict at issue could be explained by the fact that GED describes a job performer’s educational
background rather than the job’s mental or skill requirements. (Doc. 21 at 22.)
The SVP level measures the skill level necessary to perform a particular job; however, a
claimant’s skill level is not the only factor an ALJ considers in determining whether there are
jobs available in significant numbers in the national economy that a claimant can do. 20 C.F.R.
§ 416.960(c)(1) (Commissioner considers RFC and vocational factors of age, education, and
work experience to decide whether claimant can adjust to work). Thus, even acknowledging that
5

See Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (1993)
(describing the physical demands and environmental conditions required for Kitchen Helper), available at
https://www.nosscr.org/sco/sco-ocr.pdf, p. 132.
6

See DOT 211.467-018.

10

the GED ratings generally correspond to a person’s level of formal and informal education that
makes them suitable for a job, Anderson v. Colvin, 514 F. App’x 756, 764 (10th Cir. 2013)
(unpublished), a claimant’s education is one vocational factor that bears on the ALJ’s ultimate
determination of whether a claimant can adjust to other work at step five. Moreover, the Court is
not persuaded that merely identifying jobs that are unskilled neutralizes or supplants the
reasoning level conflict as the Commissioner argues.

See McHerrin v. Astrue, 2010 WL

3516433, at *6, 156 Soc. Sec. Rep. Serv. 598 (E.D. Pa., Aug. 31, 2010) (explaining that a
number of courts have found the DOT’s reasoning levels are much more indicative of whether a
claimant is capable of performing more than simple, repetitive tasks) (internal citations
omitted)); see also Chapo v. Astrue, 682 F.3d 1285, 1290, at n. 3 (10th Cir. 2012) (“[w]hile the
jobs cited by the VE happen to be unskilled, that just accounted for issues of skill transfer, not
impairment of mental functions – which ‘are not skills, but, rather, general prerequisites for most
work at any skill level’” (quoting Wayland v. Chater, 76 F.3d 394 (10th Cir. 1996)
(unpublished))); see also Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (holding that a
limitation to unskilled work did not account for several effects of mental impairment); Lucy v.
Chater, 113 F.3d 905, 909 (8th Cir. 1997) (explaining that many unskilled jobs require more than
the mental capacity to follow simple instructions); Cooper v. Barnhart, 2004 WL 2381515, *4
(N.D. Ola. Oct. 15, 2004) (finding that a limitation to simple tasks appears more squarely
addressed by a job’s reasoning level, than to its SVP level, which focuses on vocational
preparedness necessary to perform the job); SSR 85-15, 1985 WL 56867, at *6 (“Because
response to the demands of work is highly individualized, the skill level of a position is not
necessarily related to the demands of the job. A claimant’s condition may make performance of
an unskilled job as difficult as an objectively more demanding job.”). For these reasons, the

11

Court declines to adopt the Commissioner’s position that the GED reasoning levels can be
disregarded when addressing the mental demands of jobs listed in the DOT and that identifying
unskilled jobs eliminates any conflicts and accommodates a claimant’s limitation to do simple
work. The ALJ failed to resolve the conflict between the VE’s testimony and the job description
for cashier in the DOT. This is error.
B.

The ALJ’s Hypothetical Question to the VE Related With Precision
Mr. Martinez’s Physical and Mental Impairments

In his Motion, Mr. Martinez argues that the DOT code for the hand packer job the VE
provided did not exist. (Doc. 17 at 10-11.) However, in his Reply, he acknowledged his error
and newly argued that the ALJ’s hypothetical question to the VE failed to include that
Mr. Martinez could occasionally stoop, kneel and crouch.7

(Doc. 26 at 2.)

As such,

Mr. Martinez contends that “the job of hand packer found by the VE and the ALJ cannot stand
because it is not supported by substantial evidence if based on conflicting facts in the ALJ’s
hypothetical question.” (Id.) Mr. Martinez’s argument, however, necessarily fails because the
record demonstrates that the ALJ did, in fact, include occasional stooping, kneeling, crouching
and crawling in her hypothetical to the VE.
Mr. Martinez’s argument.

(Tr. 48.)

As such, there is no basis for

See Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991)

(“[t]estimony elicited by hypothetical questions that do not relate with precision all of a
claimant’s impairments cannot constitute substantial evidence to support the [Commissioner’s]
decision.”).

7

Because the Court finds that Mr. Martinez’s argument has no merit, there is no need for the Commissioner to
provide a surreply.

12

C.

Significant Jobs Exist in the National Economy That Mr. Martinez
Can Perform and Any Error at Step Five Is Harmless

Here, two of the three jobs the VE identified exceeded the ALJ’s RFC and the ALJ failed
to resolve the apparent conflict between the VE’s testimony and the DOT. The question,
therefore, is whether the one remaining job of hand packer exists is significant numbers such that
the ALJ’s error at step five is harmless. The Court finds the ALJ has carried her burden at step
five and that any error is harmless.
The Tenth Circuit has considered in a number of cases what constitutes a significant
number of jobs. In Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004), the court remanded when
it determined that the ALJ had erroneously relied on two jobs that were in direct conflict with his
RFC findings to find that significant jobs existed, and that “he never had occasion to decide if the
one hundred surveillance jobs alone constituted a significant number under the statute.” 357
F.3d at 1144. Similarly, in Chavez v. Barnhart, 126 F. App’x 434 (10th Cir. 2005), the court
remanded because two of the jobs described by the VE conflicted with the Dictionary of
Occupational Titles, and the ALJ did not have an opportunity to evaluate whether the 199
parking lot attendant jobs in the region, standing alone, existed in significant numbers. Id. at
436.
In contrast, in Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992), the issue was whether
650 to 900 jobs existing in the region constituted a significant number and noted several factors
courts may consider in evaluating the “significant number” issue.8 966 F.2d at 1329-32. The
court ultimately determined that substantial evidence supported the ALJ’s decision. Id. at 1332.
In Stokes v. Astrue, 274 F. App’x 675 (10th Cir. 2008), the court held that no reasonable
8

The factors included (1) the level of claimant’s disability; (2) the reliability of the vocational expert’s testimony;
(3) the distance claimant is capable of traveling to engage in the assigned work; (4) the isolated nature of the jobs;
and, (5) the types and availability of such work. Trimiar, 966 F.2d at 1330.

13

factfinder could determine that suitable jobs did not exist in significant numbers where there
were 11,000 regionally available jobs and 152,000 nationally available jobs based on two of the
four jobs the ALJ considered. Id. at 684. In Rogers v. Astrue, 312 F. App’x 138 (10th Cir. 2009),
the court implied that 11,000 nationally available jobs was a significant number.9 Id. at 142. In
Raymond v. Astrue, 356 F. App’x 173 (10th Cir. 2009), the ALJ identified three jobs, two of
which Mr. Raymond argued exceeded his RFC. 356 F. App’x at 177. As to the one remaining
job, Mr. Raymond argued that significant numbers of prospective jobs “must exist in the
regional economy” before an ALJ can avoid a disability finding. Id. (emphasis in original). The
Court did not reach the argument of whether the two jobs exceeded Mr. Raymond’s RFC, but
held that even if Mr. Raymond were unable to do those two jobs, it was undisputed he was
capable of doing one of the jobs; i.e., rental clerk, that the VE identified. Id. The Court further
held that the rental clerk job existed in significant numbers in the national economy10 and
rejected the claimant’s regional argument, holding that the controlling statutes, federal
regulations, and case law all indicate that the proper focus is generally on jobs in the national,
not regional, economy.11 Id.
9

In Rogers, three of the four jobs the ALJ identified exceeded the claimant’s RFC. 312 F. Appx. at 141-42. The
Court held, however, that the ALJ resolved any conflict between the VE’s testimony and the DOT that claimant
could perform the fourth job; i.e., hand packager job, and that 11,000 hand packager jobs existed in the national
economy. Id. The Court, therefore, held that the ALJ could rely on that testimony as substantial evidence to support
a determination of nondisability. Id.
10

1.34 million rental clerk jobs existed in the national economy and 385 in New Mexico. Raymond, 356 F. App’x at
177.

11

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

14

Here, the ALJ carried her burden at step five and determined that jobs existed in
significant numbers in the national economy that Mr. Martinez could perform. As such, the
ALJ’s failure to resolve the conflict between the VE’s testimony and the DOT regarding the
dishwasher and cashier jobs is harmless error. See Allen, 357 F.3d at 1145 (finding harmless
error when the Court can confidently say that based on the material the ALJ considered that no
reasonable administrative factfinder, following the correct analysis, could have resolved the
actual matter in any other way). Mr. Martinez is capable of performing the hand packer job of
which 935 such jobs existed in New Mexico and 325,401 existed nationally. (Tr. 49.)

These

numbers are well above the statewide and nationally available jobs the Tenth Circuit has
previously found constituted a significant number. Raymond, 356 F. App’x at 177-78; Rogers,
312 F. App’x at 142; Stokes, 274 F. App’x at 684; Trimiar, 966 F.2d at 1326. The VE’s
testimony pertaining to the hand packer job constitutes substantial evidence supporting the ALJ’s
determination of nondisability, and no reasonable factfinder could have determined under the
law that suitable jobs did not exist in significant numbers here. Allen, 357 F.3d at 1145.
For the foregoing reasons, the Court finds the ALJ’s step five findings are supported by
substantial evidence and there is no reversible error.
IV. Conclusion
Mr. Martinez’s Motion to Reverse and Remand and Memorandum Brief in Support
(Docs. 16 and 17) is DENIED.

_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent
performing his past work, and then the burden shifts to the Commissioner to show that the claimant can perform
work in the national economy)); Hamlin v. Barnhart, 365 F.3d 1208, 1224 (10th Cir. 2004) (noting that jobs need
only exist within “the regional or national economy”) (emphasis added)).

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