Chavez v. Social Security Administration

Filing 25

ORDER by Magistrate Judge Steven C. Yarbrough denying 19 Motion to Remand to Agency. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL LAWRENCE CHAVEZ,
Plaintiff,
v.

Civ. No. 16-1415 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO REMAND
THIS MATTER is before the Court on Plaintiff Michael Chavez’s Motion to Remand to
Agency. Doc. 19. For the reasons discussed below, the Court will DENY Plaintiff’s Motion.
I.

Background

Plaintiff initially filed a claim for supplemental security income and disability insurance
benefits on May 11, 2010. AR 481. Plaintiff alleged a disability onset date of October 1, 2008,
due to problems with his right knee, migraines, blackouts, back pain, anxiety, and an inability to
focus. AR 129, 496. Plaintiff’s claims were initially denied on October 25, 2010, and upon
reconsideration on March 1, 2011. AR 129. On May 22, 2013, the ALJ held a hearing and
ultimately issued a partially favorable decision. AR 144. The Appeals Council subsequently
granted Plaintiff’s request for review, vacated the ALJ’s decision, and remanded the matter to the
ALJ for a new decision. AR 150-54. The ALJ held the second hearing on November 15, 2015,
and issued her decision finding Plaintiff not disabled on January 21, 2016. AR 41. Plaintiff now
appeals.
Because the parties are familiar with the administrative record, the Court will reserve
discussion of Plaintiff’s pertinent medical records for its analysis.
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II.

Applicable Law

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
analysis stops.
(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.

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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)).
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
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

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1010.
III.

Analysis

Plaintiff raises five issues for review. First, Plaintiff contends that the ALJ erred in her
assessment of the weight given to the opinions of Dr. Steve Baum, Dr. Kimothi Cain, Dr.
Thomas Dhanens, state agency reviewers Drs. Blacharsh and Chiang, and function reports
submitted by Plaintiff’s family members. Second, Plaintiff contends that the ALJ erred in her
assessment under the listings for mental impairments. Third, Plaintiff contends that the ALJ
erred in her assessment of Plaintiff’s credibility and failed to apply the factors set forth in Social
Security Ruling 96-7p. Fourth, Plaintiff argues that the ALJ’s RFC finding was not supported by
the evidence. Finally, Plaintiff argues that the ALJ erred in her assessment at Steps Four and
Five of the sequential evaluation process. The Court will address these issues in turn.
A. The ALJ Properly Weighed the Opinions of Doctors Baum, Cain, and Dhanens;
State Agency Reviewers Drs. Blacharsh and Chiang; and Statements Provided
by Plaintiff’s Family Members
Plaintiff contends that the ALJ improperly assessed the weight assigned to various
opinions and third-party function reports. These include the opinions of Dr. Baum, Dr. Cain, and
Dr. Dhanens, Dr. Blacharsh, and Dr. Chiang, as well as third-party function reports submitted by
Plaintiff’s sister and his girlfriend. As an initial matter, the Court notes that likely owing to the
number of issues raised by Plaintiff, many of his arguments are borderline underdeveloped.
Nevertheless, for the reasons discussed below, the Court concludes that the ALJ did not err in her
assessment of the weight given this evidence.
i.

Family Members’ Function Reports

Plaintiff contends that the ALJ gave little weight to the statements of Plaintiff’s sister and
his girlfriend. Plaintiff argues that the ALJ “without explanation, asserted that the statements

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were inconsistent with the medical evidence.” Doc. 20 at 12. Plaintiff’s argument on this point
constitutes one paragraph and succinctly states that it is “notable that the statements are entirely
consistent with [Plaintiff’s] statements, with each other, with [Plaintiff’s testimony] and with
documentation of severe cognitive impairment as a result of traumatic brain injury.” Doc. 20 at
12.
The issue, however, is not whether the statements are supported by other evidence in the
record. The issue is instead whether the ALJ complied with the appropriate legal standards in
considering the statements and whether the ALJ’s decision is supported by substantial evidence.
The ALJ gave these statements little weight on the basis that the “medical records do not
corroborate the limitations described, and the reports generally parallel[] that of the claimant’s
alleged severe limitations.” AR 38. Earlier in her decision, the ALJ stated that she reviewed the
third-party function reports of these individuals and provided a summarization of the statements.
AR 29. In regard to statements from “other sources,” such as these, an ALJ “generally should
explain the weight given…or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1163 (10th Cir. 2012) (internal quotation
marks and citation omitted). The ALJ is not required to discuss every piece of evidence in a
third-party function report. See Romero v. Colvin, Civ. No. 15-254, 2016 WL 8229940, *6
(D.N.M. June 23, 2016). In the present case, although the ALJ did not discuss her reasons for
specifically rejecting each piece of evidence in the third-party function reports, the ALJ’s
summarization of the evidence in conjunction with her finding that she accorded them little
weight due to their inconsistency with the medical records complied with the appropriate legal
standards and allowed this Court to engage in a meaningful review of her decision.

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ii.

State Agency Reviewers Dr. Blacharsh and Dr. Elizabeth Chiang

Plaintiff contends that the ALJ erred in assessing the weight given to state agency
reviewers Dr. Jill Blacharsh and Dr. Elizabeth Chiang. Plaintiff argues that the ALJ erred
because she found “that these sources had reviewed all evidence when rendering their opinions”
but that the opinions were issued in 2010 and 2011—long before the existence of most of the
evidence. Doc. 20 at 11-12. Plaintiff’s argument on this point misstates the basis of the ALJ’s
decision. The full sentence in the ALJ’s decision states, “I give significant weight to the
opinions of these psychologists because they [were] rendered after a thorough review of the
record available to them at the time and are consistent with the record as a whole.” AR 38
(emphasis added). The fact that the ALJ recognized that the opinions were given in 2010 and
2011 and then stated that the opinions were otherwise consistent with the medical record
undercuts Plaintiff’s contention. The Court accordingly rejects Plaintiff’s argument on this
point.
iii.

Dr. Baum

Dr. Baum performed a consultative examination of Plaintiff on August 28, 2010. AR 688.
Dr. Baum found no behavioral abnormalities and that Plaintiff’s mood and affect were
consistent. AR 689. Dr. Baum noted that Plaintiff reported that he hears “negative critical voices
and a radio sound in the background.” AR 689. Dr. Baum further noted that Plaintiff reported
experiencing 3-4 migraines per week and occasional blackouts. AR 689. Dr. Baum estimated
that Plaintiff’s IQ is average and reported that Plaintiff was able to spell “world” forward and
backward, perform serial 3s, and could recall 3/3 objects after a distracter task. AR 689. Plaintiff
was unable, however, to perform serial 7s or abstract a simple proverb. AR 689. Dr. Baum
ultimately found that Plaintiff was suffering from “untreated psychosis.” AR 689. Dr. Baum

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indicated that Plaintiff has marked limitations in his ability to understand and remember detailed
or complex instructions and carry out instructions. AR 690. Dr. Baum further found that
Plaintiff has a moderate limitation in his ability to attend and concentrate. AR 690.
Plaintiff contends that the ALJ erred because she accorded Dr. Baum’s opinion little
weight based only on a finding that it was not supported by his objective findings. Upon review
of the ALJ’s decision, the Court concludes that the ALJ’s findings regarding Dr. Baum’s opinion
were more extensive than Plaintiff indicates and that substantial evidence supports her decision
to accord the opinion little weight. First, as noted by Plaintiff, the ALJ did conclude that Dr.
Baum’s opinion was not supported by his objective findings. In so concluding, the ALJ discussed
internal inconsistencies in Dr. Baum’s opinion, including the fact that Plaintiff was able to spell
“world” forward and backward, perform serial 3s, and recall 3/3 objects after a distracter task.
AR 37. The ALJ further noted that Dr. Baum found that Plaintiff’s social judgment was intact
and that there was an inconsistency between Dr. Baum’s finding that Plaintiff has mild
limitations in regard to carrying out short, simple instructions but marked limitations in his
overall ability to carry out instructions. AR 37. Based on these findings, the ALJ concluded that
“these findings do not support his opinion that the claimant has marked limitations in the ability
to carry out instructions” and assessed Dr. Baum’s opinion little weight. AR 37. Plaintiff does
not address any of these findings in his argument and the Court finds no basis to conclude that
the ALJ erred in her assessment of Dr. Baum’s opinion.
iv.

Dr. Dhanens

Plaintiff contends that the ALJ erred in assessing Dr. Dhanens’ opinion. Doc. 20 at 10-11.
The ALJ accorded Dr. Dhanens’ opinion “great weight.” AR 37. Dr. Dhanens found that
Plaintiff has marked limitations in his ability to carry out complex instructions and to make

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judgments on complex work-related decisions. However, Dr. Dhanens questioned the results of
Plaintiff’s IQ test because he thought Plaintiff was an “unreliable reporter.” AR 992. Dr.
Dhanens also noted that there were no medical records to support a finding of traumatic brain
injury and that neither Plaintiff’s scores nor presentation suggested the presence of such a
diagnosis. AR 992.
Plaintiff’s argument on this point requires a bit of parsing out. Plaintiff advocates a
narrative of the medical records that would essentially hold that Plaintiff may have had some
mild cognition issues earlier in life but that multiple head injuries led to a significant decrease in
his cognitive capabilities. Accordingly, Plaintiff takes issue with Dr. Dhanens’ opinion that there
was no medical evidence supporting a diagnosis of traumatic brain injury. Plaintiff speculates
that Dr. Dhanens’ opinion on this point means that he either did not receive or did not review all
of Plaintiff’s medical records. Doc. 20 at 11. Plaintiff therefore contends that the ALJ was
incorrect to conclude that Dr. Dhanens’ opinion was consistent with the medical record. In sum,
Plaintiff argues that great weight should have been accorded to Dr. Dhanens’ objective findings
regarding Plaintiff’s IQ but that no weight should have been accorded to his other opinions.
The Court rejects Plaintiff’s framing of Dr. Dhanens’ findings. Dr. Dhanens stated that
he did not “see medical documentation, such as ER records, to confirm there was one, or more,
significant head injuries.” AR 992. Later in his report, Dr. Dhanens clarified that “[i]f there is
documentation, such as an MRI or CT scan, to confirm brain injury, this could change my
opinion.” AR 992. Read in context, the Court does not understand Dr. Dhanens to be opining that
Plaintiff never suffered a head injury but instead that there are no medical records supporting a
diagnosis of traumatic brain injury. Such a reading is more consistent with the ALJ’s decision
and the medical record as a whole. For instance, in reviewing the medical records regarding

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Plaintiff’s head injuries, the ALJ stated earlier in her decision that she “could find no imaging
results that demonstrate evidence of brain injuries.” AR 32. Further, in rejecting Plaintiff’s
argument that his IQ was decreased by approximately fifteen points due to the head injuries, the
ALJ found that “there are no diagnostic tests that support such an assertion” nor “medical
opinions that support such [an] assertion” and that Plaintiff’s “demonstrable activities, [postinjury] indicate his functioning level is inconsistent with a 65 IQ score.” AR 32. The Court’s
review of the medical evidence confirms the ALJ’s findings on this point. See e.g. AR 872
(medical record for head injury noting nasal bone fracture but “no intracranial or traumatic
process noted.”). The Court accordingly rejects Plaintiff’s argument on this point.
v.

Dr. Cain

Plaintiff contends that the ALJ erred in assessing Dr. Kimothi Cain’s opinion little
weight. Dr. Cain opined that Plaintiff has marked limitations in his ability to understand,
remember, and carry out detailed instruction; maintain attention and concentration for extended
periods; sustain an ordinary routine without supervision; work with others without being
distracted by them; and complete a normal workday or work week without interruptions from
psychologically based symptoms or perform at a consistent pace without an unreasonable
number and length of rest periods. AR 792-99. Plaintiff summarily contends that “[a]lthough
Dr. Cain had not treated [Plaintiff] long, her findings are consistent with other evidence.” In
support of this statement, Plaintiff cites to Dr. Baum’s report.
The Court rejects Plaintiff’s argument. Plaintiff does not even contend that the ALJ’s
reasoning in giving Dr. Cain’s opinion less weight is incorrect. Indeed, Plaintiff acknowledges
that Dr. Cain had not treated Plaintiff long, which was, in part, the reason the ALJ accorded Dr.
Cain’s opinion little weight. See AR 35. Further, Plaintiff’s argument merely invites the Court to

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weigh Dr. Cain and Dr. Baum’s opinions over other evidence in the record which supports the
ALJ’s decision. In sum, Plaintiff’s argument merely asks the Court to reweigh the evidence,
which it will not do. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
The Court accordingly rejects this argument.
B. The ALJ Appropriately Assessed the Listings
Plaintiff contends that the ALJ disregarded medical evidence and therefore improperly
assessed whether Plaintiff’s mental impairments met the criteria for the listings. Doc. 20 at 1215. Plaintiff’s argument, however, is based on the assumption that Dr. Cain’s opinion was
entitled to greater weight. In her decision at step three, the ALJ found that Dr. Cain’s opinions
were entitled to little weight; therefore, the ALJ did not adopt the moderate or marked limitations
found by Dr. Cain. See AR 25-27. As determined above, the Court upholds the ALJ’s decision
assessing Dr. Cain’s opinion little weight and therefore rejects this contention.
C.

The ALJ Appropriately Assessed Plaintiff’s Credibility

Plaintiff contends that the ALJ erred in her assessment of Plaintiff’s credibility. In
support of this argument, Plaintiff highlights one portion of the ALJ’s decision in which the ALJ
found that a two year absence of medical treatment casts doubt on Plaintiff’s credibility.
Plaintiff contends that such a finding is contrary to SSR 96-7p.
SSR 96-7p states that medical records demonstrating consistent attempts by the claimant
to seek medical treatment for pain may lend support to a claimant’s allegations regarding the
intensity and persistence of his or her symptoms. On the other hand, an “individual’s statements
may be less credible if the level or frequency or treatment is inconsistent with the level of
complaints, or if the medical reports or records show that the individual is not following the
treatment as prescribed and there are no good reasons for this failure.” SSR 96-7p. The ruling

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cautions, however, that an ALJ “must not draw any inferences about an individual’s symptoms
and their functional effects from a failure to seek or pursue regular medical treatment without
first considering any explanations that the individual may provide, or other information in the
case record, that may explain infrequent or irregular medical visits or failure to seek medical
treatment.” SSR 96-7p.
As initial matter, the Court notes that Plaintiff points to no information provided by
Plaintiff that the ALJ should have considered before drawing the inference that the two year gap
in treatment casts doubt on his credibility. Thus, it is not apparent that the ALJ failed to comply
with SSR 96-7p. Regardless, the Court rejects Plaintiff’s argument because the basis of
Plaintiff’s argument is that this finding represented the bulk of the ALJ’s credibility
determination and, based on the Court’s review, this is not true. Near the end of her decision, the
ALJ stated, “I find that the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.” AR 38. The Court will not list every example of the ALJ
comparing Plaintiff’s allegations regarding the intensity and persistence of his symptoms with
the medical record. But having extensively reviewed the ALJ’s decision, it is apparent that the
ALJ conducted a thorough review of medical record and determined that it did not support
Plaintiff’s allegations. See e.g. AR 29 (stating that the “medical record does not support
[Plaintiff’s] allegations of severe functional limitations” and beginning review of medical
record). See Williams v. Bowen, 844 F.2d 748, 755 (10th Cir. 1988) (stating that credibility
determinations are the province of the ALJ and should not be overturned lightly)
D. The RFC is Supported by Substantial Evidence

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Plaintiff contends that the ALJ’s RFC is not supported by substantial evidence. In
relevant part, the ALJ determined that Plaintiff has the residual functional capacity to perform
medium work except that he should no more than occasionally kneel and crawl. AR 28.
Medium work “requires standing or walking, off and on, for a total of approximately 6 hours in
an 8-hour workday.” SSR 83-10. Plaintiff argues that the evidence shows that he has had
chronic right knee problems since 2007 and that this impairment limits his ability to stand or
walk for prolonged periods of time. Doc. 20 at 16. Plaintiff therefore argues that the ALJ erred
in determining that he could perform medium work.
The record reflects that an MRI in October 2009 revealed that Plaintiff had a torn medial
meniscus. AR 817. Plaintiff was scheduled for surgery in 2009 but, after cancelling
appointments, he did not actually undertake surgery until April 2011. AR 813, 815, 820. The
ALJ found that the medical records indicated that Plaintiff was doing “quite well” post-surgery.
AR 30; see e.g. AR 825, 828. In May 2011, his physical therapist noted that she saw “no
disability in his lower extremities that would contribute positively or negatively for his disability
claim and that he has “little or no difficulty performing his activities of daily living.” AR 30
(citing AR 823, 825).
In contending that the ALJ erred, Plaintiff posits that the ALJ’s reliance on Plaintiff’s
report in July 2011 that he can walk for two miles without assistance was a mistake because
Plaintiff reported being able to walk various distances over the course of his treatment. Doc. 20
at 16. Plaintiff highlights that he reported in August 2010 that he could only walk two blocks
and in January 2011 he reported he could only walk one mile. Doc. 20 at 16. Plaintiff therefore
argues that, in actuality, the record reflects that Plaintiff does not know the difference between a

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mile and a block and the ALJ’s reliance on his report that he could walk two miles was therefore
error.
The Court rejects this argument. First, the Court notes that Plaintiff’s reports that he
could only walk two blocks or one mile occurred before his surgery and accordingly do not call
into question the ALJ’s determination that post-surgery he was doing well and could walk two
miles without assistance. Second, the conclusion that Plaintiff’s argument invites is premised on
the Court making a factual finding that Plaintiff did not know the difference between a mile and
a block. However, the Court is tasked with reviewing whether substantial evidence supports the
ALJ’s decision, not making speculations as to whether Plaintiff understood the difference
between a mile and block.
Furthermore, to the extent that Plaintiff is contending that the ALJ erred in assessing the
opinion of Dr. Karl Moedl, and that the ALJ’s finding that Plaintiff is limited to medium work is
therefore not supported by substantial evidence, the Court rejects this argument. While the Court
recognizes that Dr. Moedl’s report was issued before his knee surgery, Plaintiff’s argument again
disregards the findings the ALJ made regarding Plaintiff’s condition post-surgery. In sum, the
Court concludes that substantial evidence supports the ALJ’s decision on this point
E. The ALJ Did Not Err At Step Four or Five of the Sequential Evaluation Process
Plaintiff challenges the ALJ’s findings at Steps Four and Five. At Step Four, the ALJ
found that given Plaintiff’s RFC, he is capable of performing his past relevant work as a Laborer
Stores. AR 39. At Step Five, the ALJ found that Plaintiff could perform other work existing in
significant numbers in the national economy. AR 39.
Plaintiff contends that the ALJ erred in these determinations. As for the finding that
Plaintiff could perform past relevant work, Plaintiff contends that the ALJ erred for two reasons.

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First, Plaintiff contends that the ALJ’s findings were based on an improper RFC limiting
Plaintiff to medium work. Doc. 20 at 17-18. Second, Plaintiff contends that Plaintiff’s past
relevant work required a GED reasoning level of 2 and that he is restricted to jobs with a GED
reasoning level of 1. Doc. 20 at 18. As for performing other work, Plaintiff contends that the
ALJ failed to take into account Plaintiff’s mental impairments.
As an initial matter, to the extent that Plaintiff’s argument is premised on the Court
concluding that the ALJ’s determination that he was limited to medium work was error, the
Court rejects this argument. As the Court concluded above, substantial evidence supported the
ALJ’s finding that Plaintiff was limited to medium work. Accordingly, it was not error for the
ALJ to conclude that Plaintiff could perform his past relevant work at the medium exertional
level or other work existing in the national economy at the light exertional level.
As for Plaintiff’s second argument, even assuming that the ALJ erred in regard to
Plaintiff’s GED reasoning levels, the Court concludes that such error would be harmless. As
noted above, the ALJ determined that Plaintiff was capable of performing three other jobs that
exist in significant numbers in the national economy. Two of those jobs, cleaner/polisher and
housekeeping/cleaner encompass the GED levels advocated for by Plaintiff. With these two jobs
combined, there exists approximately 170,000 jobs in the national economy, which, as matter of
law, is a significant number of jobs. Ferguson v. Berryhill, No. 16-1348, 2017 WL 2536436 (D.
Kan. June 6, 2017) (recognizing that the Tenth Circuit has determined that 152,000 jobs is
significant as a matter of law). Accordingly, even assuming Plaintiff is limited to a GED
reasoning level of 1, the ALJ found that significant jobs exist in the national economy at that
level and such alleged error the ALJ made in assessing Plaintiff’s GED reasoning level is
harmless. See Anderson v. Colvin, 514 Fed App’x 756, 764 (10th Cir. 2013) (concluding that

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even if the claimant was limited to a reasoning development level of 1, the vocational expert’s
identification of the jobs of cleaner and housekeeper, which existed in significant numbers in the
national economy, rendered such error harmless).
IV.

Conclusion

Based on the foregoing, the Court affirms the ALJ’s decision and therefore DENIES
Plaintiff’s Motion to Remand to Agency (Doc. 19).

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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