Garcia v. Social Security Administration
Filing
28
ORDER by Magistrate Judge Steven C. Yarbrough denying 20 Motion to Remand to Agency. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESUS A. GARCIA,
Plaintiff,
v.
No. 1:16-cv-01266 SCY
NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND
THIS MATTER is before the Court on Plaintiff Jesus Garcia’s Motion to Reverse and
Remand the Social Security Commissioner’s final decision denying Plaintiff a period of
disability and disability insurance benefits. Doc. 20. The Court concludes that the ALJ did not
error in her Step 5 findings and, therefore, will DENY Plaintiff’s motion.
I.
BACKGROUND
Plaintiff filed a Title II application for a period of disability and disability insurance
benefits on June 13, 2013. Administrative Record (“AR”) 520. He alleged a disability onset date
of February 7, 2012. Id. After his claim was denied on initial review and upon reconsideration,
her case was set for a hearing in front of an ALJ on March 10, 2015. Id. Plaintiff appeared in
person at the hearing with his attorney. Id. The ALJ took testimony from Plaintiff and from an
impartial Vocational Expert (“VE”), Sandra Fioretti. Id.; see also AR 533-559.
On April 23, 2015, the ALJ issued a written decision finding that Plaintiff was not
1
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.
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disabled within the meaning of the Social Security Act. AR 520-28. In arriving at her decision,
the ALJ determined that Plaintiff had not engaged in substantial gainful activity since February
7, 2012, his alleged onset date. AR 522. The ALJ then found that Plaintiff suffered from the
following severe impairments: (1) spinal disorder including thoracic and lumbar spine strain
sprain; (2) disorder of the left shoulder including rotator cuff tear, labrum fraying, and
acromioclavicular arthritis; (3) disorder of the right hip; (4) osteoarthritis and probable right
sacroiliac joint sprain; (5) diabetes; (6) high blood pressure; and (7) obesity. AR 522. The ALJ
found that these impairments, individually or in combination, did not meet or medically equal
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. AR 523.
Because she found that Plaintiff’s impairments did not meet a Listing, the ALJ then went
on to assess Plaintiff’s residual functional capacity (“RFC”). AR 523-27. The ALJ stated that
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a range of light work as defined in 20 CFR
404.1567(b). Specifically, the claimant can lift/carry 20 pounds occasionally and
10 pounds frequently; push/pull within the same weight limitations; stand/walk
for four hours out of an eight hour workday, with no prolonged standing and
walking greater than 30 minutes at a time; and sit for six hours out of an eight
hour workday with the ability to stand and stretch not to exceed 10 percent of the
day, in addition to normal breaks and lunches. The claimant is precluded from
repetitive pushing, pulling, and lifting with the left upper extremity and right
lower extremity; repetitive foot pedals with the right lower extremity; repetitive
bending or stooping; running; jumping; ladders, ropes, and scaffolds; repetitive
twisting; crawling; squatting; repetitive stair climbing; and work above or at
shoulder level with the right upper extremity. Additionally, the claimant is limited
to non-complex tasks because of pain and medication side effects.
AR 523. The ALJ concluded that Plaintiff had no past relevant work. AR 526. Based on the VE’s
Fioretti’s testimony, the ALJ then determined at step five that considering Plaintiff’s age,
education, work experience, and her RFC, there are jobs that exist in significant numbers in the
national economy that she can perform. AR 527-28.
Plaintiff appealed the ALJ’s decision to the Social Security Appeals Council. AR 1-6.
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The Appeals Council ultimately denied Plaintiff’s request for review. Id. This appeal followed.
Doc.19.
II.
APPLICABLE LAW
A. Disability Determination Process
A claimant is considered disabled for purposes of Social Security disability insurance
benefits or supplemental security income 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); see also 42 U.S.C. §
1382c(a)(3)(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, 416.920.
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 analysis stops.
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(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. §§ 404.1520(a)(4), 416.920(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)).
Furthermore, 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
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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.
III.
ANALYSIS
Plaintiff raises two arguments in his motion, both of which are directed at the ALJ’s Step
5 findings. First, Plaintiff argues that the ALJ failed to resolve a conflict between the vocational
expert’s testimony and the Dictionary of Occupational Titles (DOT). Doc. 20 at 6-9. Second,
Plaintiff contends that the ALJ, in determining that Plaintiff can perform jobs that exist in
significant numbers in the national economy, did not conduct the analysis necessary under
Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992). Doc. 20 at 10-11.
A. The ALJ Appropriately Relied on the Vocational Expert to Resolve a Conflict
Between Plaintiff’s Residual Functional Capacity and the Dictionary of
Occupational Titles Definition of Work the ALJ Found Plaintiff Could Perform
At the March 10, 2015 hearing, the ALJ elicited testimony from Vocational Expert
Sandra Moore Fiorettie. AR 549. The ALJ noted that he had VE Fiorettie’s resume in the file
and Plaintiff, through her attorney, did not object to VE Fiorettie testifying as a vocational
expert. AR 550. The ALJ further made sure that VE Fiorettie was familiar with the Dictionary
of Occupational Titles and that she understood that, if her opinion conflicted with the DOT, she
was required to advise the ALJ of that conflict and of the basis for her opinion. AR 449-50.
Contrary to Plaintiff’s argument, the Court finds that the VE fulfilled this requirement.
In response to the ALJ’s hypothetical that incorporated the limitations he found Plaintiff
to have, the VE testified that Plaintiff could perform the work of a products assembler I, a bench
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assembler, and a toy assembler. AR 555-56. Plaintiff correctly points out that each of these jobs
constitutes light work and that light work is defined as the ability to stand or walk off and on for
a total of approximately 6 hours of an 8 hour workday. Doc. 20 at 8-9. But Plaintiff argues that
the ALJ determined that Plaintiff could only stand or walk for four hours of an eight hour
workday. Doc. 20 at 8-9. The VE, however, recognized that Plaintiff’s limitations in “standing,
walking, sitting, the posturals[,] and reaching anything” would prevent her from performing 90
percent of the positions available for the three jobs she identified. AR 555. Thus, the VE applied
her expertise to set forth the number of positions in the national economy of these jobs that
Plaintiff could perform, taking into consideration Plaintiff’s specific limitations.
While unpublished, the Tenth Circuit’s decision in Rogers v. Astrue provides persuasive
guidance on this point. 312 Fed.Appx. 138, 141 (10th Cir. 2009). In Rogers, even though the
ALJ provided an RFC that limited Plaintiff to sedentary work, three of the four jobs the VE
identified as available to the claimant in the national economy constituted light jobs. Id. Further,
the fourth job the VE identified normally required medium exertion. Id. Of these medium
exertion jobs, however, the VE testified that 11,000 existed in the national economy that could
be done at a sedentary level. Id. at 141-42. Based on this testimony, the Tenth Circuit rejected
the plaintiff’s argument that “the apparent conflict between the DOT and the VE’s testimony
regarding the job’s exertional requirement” required remand. Id. at 142. Specifically, the Tenth
Circuit stated that “the ALJ could rely on [the VE’s] testimony as substantial evidence to support
her determination of nondisability” and that “[p]roviding this type of professional, experiencebased evidence is precisely what reliance on evidence from a VE is meant to accomplish.” Id. at
*4. Like Rogers, the Court concludes that in the present case the ALJ appropriately relied on the
VE’s testimony and expertise in concluding that ten percent of positions available in the work
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the VE identified did not require an exertional level beyond that which the ALJ determined
Plaintiff could perform.
B. Substantial Evidence Supports the ALJ’s Finding that Jobs Plaintiff Could Have
Performed Existed in Significant Numbers in the National Economy
Plaintiff contends that “a total of 17,600 jobs available in the national economy does not
rise to the significant level as defined in 42 U.S.C. § 423(d)(2)(A).” Doc. 20 at 11. Plaintiff
argues that this number of jobs is “borderline” and therefore requires remand so that the Court
can conduct the “more searching inquiry suggested by [Trimiar v. Sullivan, 966 F.2d 1326 (10th
Cir. 1992)] in doubtful cases.” Doc. 20 at 10.
The Court first notes that Plaintiff’s argument is premised on the Court adopting a factual
finding the ALJ did not actually make. Plaintiff argues that if the Court were to divide the
17,600 jobs available in the national economy the ALJ found Plaintiff could perform by the
number of states and territories of the United States, the number of jobs in the local economy
would be approximately 325. Doc. 20 at 11. Plaintiff compares this number to the 850-1000 jobs
in Urioste v. Astrue, which the Court found triggered a Trimiar analysis, in contending that the
number of jobs in the present case is “borderline.” 11-867, Doc. 23 at 19-20 (D.N.M. May 24,
2012). A finding of the number of regional jobs is not determined, however, by a simple division
of the number of jobs existing in the national economy with the number of states and territories
in the United States. It is instead premised on expert testimony a vocational expert provides.
Here, there is no such finding because the vocational expert testified to the number of jobs
existing in the national economy (see AR 555-56) and it is proper for the ALJ to solely consider
the national figure in his or her determination pursuant to 42 U.S.C. § 423(d)(2)(a). See
Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (concluding that “the proper focus
generally must be on jobs existing in the national, not regional, economy”).
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This distinction is significant because the Trimiar decision focused on jobs available in
the regional economy. 966 F.2d at 1330. Accordingly, many of the Trimiar factors are
specifically directed toward the analysis of jobs available in the regional economy such as “the
distance that the claimant is capable of travelling to engage in the assigned work” and “the
isolated nature of the jobs.” Id. Such factors would appear to have little to no bearing on the
analysis of nationally available jobs. Indeed, Magistrate Judge Molzen recently addressed the
issue of whether the Trimiar analysis extended to the review of jobs available in the national
economy. King, 2018 WL 851358 at *13. Judge Molzen stated that “‘[t]he multi-factorial
analysis required by Trimiar focuses on factors relevant in analyzing the true ‘availability’ of
local job opportunities on a more particularized inquiry as to the specific claimant under
consideration.” Id. Thus, “[w]here the focus is on national availability of jobs…the
particularized Trimiar inquiry would confuse the issues.” Id. Judge Molzen therefore concluded
that the “Trimiar analysis does not extend to the question of whether there are significant
numbers of nationally available jobs.” Id. (emphasis in original)); see also Padilla v. Berryhill,
Civ. No. 16-106-KK, 2017 WL 3412089, *12 (D.N.M. March 28, 2017). The Court agrees with
Magistrate Judge Molzen’s analysis on this point. Because the issue before the Court does not
involve a review of regionally available jobs, the Court rejects Plaintiff’s specific contention that
this case requires remand in order for the ALJ to conduct a Trimiar analysis.
The Court clarifies, however, that this does not mean that an ALJ’s findings regarding the
number of jobs existing in the national economy is beyond scrutiny. Rather, the issue remains as
to whether the ALJ’s finding is supported by substantial evidence. Such a determination may
overlap with considerations laid out in Trimiar, such as the “reliability of the vocational expert’s
testimony.” 966 F.2d at 1330. No such argument is before the Court, however. The Court rejects
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Plaintiff’s attempt to manufacture a Trimiar analysis regarding jobs available in the local
economy by, with no legal support, simply dividing the number of jobs available in the national
economy by the number of states and territories within the United States.
Moreover, even assuming Plaintiff preserved an argument that substantial evidence does
not exist to support the ALJ’s conclusion that 17,600 jobs are significant in the national
economy, this argument would fail. Plaintiff did not challenge the vocational expert’s
qualifications below or on appeal. Further, the Court accepts the VE’s representation that for the
three jobs the ALJ identified, a total of 17,600 jobs exist in the national economy that someone
with Plaintiff’s limitations can perform. When generally addressing the process for determining
whether a “significant number” of jobs exist (regardless of whether considering jobs available
locally or nationally) the Tenth Circuit in Trimiar made clear that factual determinations such as
whether the number of jobs is significant “should ultimately be left to the [ALJ’s] common sense
in weighing the statutory language as applied to a particular situation.” 966 F.2d. at 1330
(quotation omitted). The ALJ determined that Plaintiff could perform jobs that existed in
significant numbers in the national economy (AR 431, 432) and the Court does not now
“presume to interpose [its] judgment for that of the ALJ.” Id. at 1332. The Court concludes that
substantial evidence supports the ALJ’s determination on this point.
IV.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s Motion to Remand to Agency
(Doc. 20).
___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent
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