Brandenburg v. Social Security Administration

Filing 27

REPORT AND RECOMMENDATIONS re 22 MOTION to Remand to Agency filed by Yvonne Brandenburg by Magistrate Judge Jerry H. Ritter. Objections to R&R due by 6/8/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
YVONNE BRANDENBURG,
Plaintiff,
v.

CIV 17-0507 JB/JHR

NANCY A. BERRYHILL,
Deputy Commissioner for Operations
performing duties and functions not reserved
to the Commissioner of Social Security,
Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before the Court on Plaintiff Yvonne Brandenburg’s Motion to
Reverse Commissioner’s Administrative Decision and Remand Claim (Doc. 22) and
Memorandum in Support of Plaintiff’s Motion to Remand (Doc. 23), filed September 15, 2017.
Pursuant to 28 U.S.C. § 636(b), this matter has been referred to me for a recommended
disposition. Doc. 21. Having reviewed the parties’ submissions, the relevant law, and the
relevant portions of the Administrative Record, the Court recommends that Plaintiff’s Motion be
granted and that this matter be remanded for further administrative proceedings.
I.

INTRODUCTION
Ms. Brandenburg’s claim for disability insurance benefits was denied by the

Commissioner at every level of review. In the final denial, the Administrative Law Judge
(“ALJ”) assigned to her case determined that Ms. Brandenburg can still perform work which
exists in “significant numbers” in the national economy. This factual finding is at the heart of
this appeal.

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Relying on the testimony of a Vocational Expert, the ALJ found that there are a total of
5,200 jobs in the national economy that Ms. Brandenburg retains the residual functional capacity
to perform. However, the ALJ’s analysis ended with this conclusion. Absent from the ALJ’s
analysis was any discussion of whether this number of jobs is actually “significant” in Ms.
Brandenburg’s case. However, such a discussion was required by binding Tenth Circuit
precedent in a case involving such a low number of jobs in the national economy. As such, the
Court recommends that Plaintiff’s Motion be granted, and that this matter be remanded for
further analysis by the ALJ.
II.

PROCEDURAL HISTORY
Ms. Brandenburg filed an application with the Social Security Administration for

disability insurance benefits under Title II of the Social Security Act on March 8, 2013. AR at
192-195. 1 She alleged a disability onset date of June 1, 2011, due to Lymphoma cancer stage 2,
cirrhosis of the liver, and diabetes. AR at 70, 192. However, her date last insured was June 30,
2011, AR at 73, “thus she had the burden of proving that she was totally disabled on that date or
before.” Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citation omitted).
Ms. Brandenburg’s application was denied initially and upon reconsideration. AR at 6988. She requested review, and, after holding a de novo hearing, ALJ Eric Weiss issued an
unfavorable decision on January 6, 2016. AR at 16-32. Ms. Brandenburg requested that the
Appeals Council review the ALJ’s decision on March 4, 2016. AR at 14-15. The Appeals
Council denied her request on March 20, 2017. AR at 1-3. As such, the ALJ’s decision became
the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

1

Documents 13-1 through 13-90 comprise the sealed Administrative Record (“AR”). The Court cites the Record’s
internal pagination, rather than the CM/ECF document number and page.

2

This Court has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
§ 422.210(a).
A claimant seeking disability benefits must establish that she 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); 20 C.F.R. §
404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. § 404.1520(a)(4). 2
At step one of the process, the ALJ found that Ms. Brandenburg had not engaged in
substantial gainful activity from her alleged onset date through her date last insured. AR at 21. At
step two, he determined that Ms. Brandenburg had established the severe impairments of “statuspost left foot fracture and obesity.” AR at 21. In so finding, the ALJ rejected Ms. Brandenburg’s
lymphoma cancer and cirrhosis of the liver, among other things, as non-medically determinable
impairments on the date last insured because they had not been diagnosed by an acceptable
medical source until after that date. AR at 21-23. The ALJ also found, through the date last
insured, Ms. Brandenburg “did not have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” AR at 23.
2

The Tenth Circuit summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in a substantially
gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). If not, the ALJ then decides
whether the claimant has a medically severe impairment at step two. Id. If so, at step three, the
ALJ determines whether the impairment is “equivalent to a condition ‘listed in the appendix of the
relevant disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). Absent a match in the listings, the ALJ must decide at step four whether the claimant's
impairment prevents him from performing his past relevant work. Id. Even if so, the ALJ must
determine at step five whether the claimant has the RFC to “perform other work in the national
economy.” Id.

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When a claimant does not meet a listed impairment, the ALJ must determine her residual
functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). “RFC is not the least an individual can do
despite his or her limitations or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1;
see 20 C.F.R. § 404.1545(a)(1). In this case, the ALJ determined that, through her date last
insured, Ms. Brandenburg retained the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a), except that she could
lift or carry 20 pounds occasionally and 10 pounds frequently; could occasionally
push or pull the same weight, including the operation of foot controls with her left
lower extremity; could walk and stand for two hours during an 8-hour workday;
could sit for six hours during an 8-hour workday; could occasionally climb ramps
and stairs, but never ladders, ropes or scaffolds; could occasionally balance,
stoop, crouch, kneel, and crawl; and had to avoid more than occasional exposure
to extreme cold and moving machinery and all exposure to unprotected heights.
AR at 23. Employing this RFC at step four, the ALJ determined that Ms. Brandenburg could not
have returned to her past relevant work as a tamale worker prior to her date last insured. AR at
25. Ms. Brandenburg does not challenge these findings on appeal.
At step five, the ALJ found that, “[t]hrough the date last insured, considering the
claimant’s age, education, work experience, and residual functional capacity, there were jobs that
existed in significant numbers in the national economy that claimant could have performed.” AR
at 26. Specifically, relying on the testimony of the vocational expert, he found that Ms.
Brandenburg was capable of working as an order clerk, table worker, and charge account clerk
prior to her date last insured. AR at 26. Ms. Brandenburg does not take exception to the ALJ’s
step five findings in general. In other words, she does not challenge the ALJ’s finding that these
jobs are within her RFC. However, she posits that the number of jobs, which the vocational
expert testified total 5,200 positions in the national economy, is insufficient to meet the
Commissioner’s burden at step five because 5,200 is not a “significant number” of jobs under the
Act. See Doc. 23 at 4. The Commissioner counters that this Court should defer to the ALJ’s
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finding that 5,200 jobs constitute a significant number of jobs existing in the national economy in
the specific context of this case. Doc. 25 at 3.
III.

LEGAL STANDARD
This Court “review[s] the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether the correct legal standards were
applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. KeyesZachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). Importantly, the Court cannot
“presume to interpose [its] judgment for that of the ALJ.” Trimiar v. Sullivan, 966 F.2d 1326,
1330 (10th Cir. 1992).
IV.

ANALYSIS
The pertinent statute defines disability as follows:
An individual shall be determined to be under a disability only if … [s]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
in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work. For purposes of the preceding sentence …
“work 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.

42 U.S.C. § 423(d)(2)(A) (emphasis added). The pertinent regulations echo the statutory
language. See 20 C.F.R. § 404.1566(a). 3 As the Tenth Circuit has held, “the controlling statutes,
federal regulations, and case law all indicate that the proper focus generally must be on jobs in
the national, not regional, economy.” Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009);
see Knott v. Califano, 559 F.2d 279, 282 (5th Cir. 1977) (“[T]he relevant job area is not confined
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Stating: “We consider that work exists in the national economy when it exists in significant numbers either in the
region where you live or in several other regions of the country. It does not matter whether— (1) Work exists in the
immediate area in which you live; (2) A specific job vacancy exists for you; or (3) You would be hired if you
applied for work.” 20 C.F.R. § 404.1566.

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to the claimant’s locality.”). In fact, the pertinent regulations and case law state “[w]e 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, but you remain
unemployed because of … (2) Lack of work in your local area[.]” 20 C.F.R. § 404.1566(c);
Raymond, 621 F.3d at 1274 (“[T]he Commissioner is not required to show that job opportunities
exist within the local area.”) (quoting Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999)).
However, it must be remembered that these same regulations state:
Work exists in the national economy when there is a significant number of jobs
(in one or more occupations) having requirements which you are able to meet
with your physical or mental abilities and vocational qualifications. Isolated jobs
that exist only in very limited numbers in relatively few locations outside of the
region where you live are not considered “work which exists in the national
economy”. We will not deny you disability benefits on the basis of the existence
of these kinds of jobs. If work that you can do does not exist in the national
economy, we will determine that you are disabled. However, if work that you can
do does exist in the national economy, we will determine that you are not
disabled.
20 C.F.R. § 404.1566(b) (emphasis added). As such, while the ALJ was not required to show that
there were a significant number of jobs in Ms. Bradenburg’s region, he was required to show that
the jobs he identified were not isolated as a matter of fact.
The ALJ found that Ms. Brandenburg “was capable of making a successful adjustment to
other work that existed in significant numbers in the national economy.” AR at 26. As set forth
above, the ALJ was not required to consider the regional jobs available to Plaintiff. He was,
however, required to determine whether or not 5,200 jobs is a significant number as applied to
“several regions of the country.” See Gutierrez v. Commissioner of Social Security, 740 F.3d
519, 528 (9th Cir. 2014) (assessing the “nationwide figure in the context of ‘several regions of
the country.’”) (citing Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012)); see Beltran, 700

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F.3d at 390 (“Although 1,680 jobs might seem a ‘significant number’ standing alone, distributing
these jobs between several regions across the nation shows that it is not ‘significant’ after all.”).
The Tenth Circuit “has never drawn a bright line establishing the number of jobs
necessary to constitute a ‘significant number[.]’” Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th
Cir. 1992). While the court has suggested that “the number appears to be somewhere between
100 . . . and 152,000[,]” Evans v. Colvin, 640 F. App’x 731, 736 (10th Cir. 2016), it has made
clear that “each case should be evaluated on its individual merits,” Trimiar, 966 F.2d at 1330,
unless harmless error applies. See Evans, 640 F. App’x at 736. In Trimiar, the Tenth Circuit
adopted several factors that an ALJ “should consider . . . in determining whether work exists in
significant numbers.” Id. These factors include: “the level of the claimant’s disability; the
reliability of the vocational expert’s testimony; the distance the claimant is capable of travelling
to engage in the assigned work; the isolated nature of the jobs; the type and availability of such
work, and so on.” Id. (quoting Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988), in turn
quoting Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.1988)). “The decision should ultimately be
left to the ALJ’s common sense in weighing the statutory language as applied to a particular
claimant’s factual situation.” Id.
As the Sixth Circuit has said, “[d]isability insurance . . . is not available to fund a
claimant’s decision to live far from [her] job.” Taskila v. Commissioner of Social Security, 819
F. 3d 902, 905 (6th Cir. 2016) (quoting Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999)).
However, an ALJ must consider the “intrinsic” effects of a claimant’s impairments when
determining whether a certain number of jobs is “significant,” “because they prevent the
claimant from accessing certain jobs in the local or national economy.” Taskila, 819 F.3d at 906.
“That an ALJ must tailor the determination of what is significant to the facts of each claimant’s

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case is why we have said that ALJs ‘should consider many criteria in determining whether work
exists in significant numbers.’” Id. (quoting Hall v. Bowen, 837 F.2d at 275).
The factors borrowed from the Sixth Circuit in Trimiar do not apply when the number of
available jobs is “much larger” than the 650 to 900 regional jobs at issue there. See Raymond,
621 F.3d at 1274 n.2; see also Harmon, 168 F.3d at 292 (“Certainly 700,000 jobs, with no
indication of gross concentration in a few areas, is a ‘significant number of jobs in the national
economy.”); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (discussing the principles
of harmless error and stating that “[s]uch an approach might have been open to us here had the
number of available jobs identified by the VE not been one hundred but considerably greater.”).
However, the Tenth Circuit, like the Sixth Circuit, has never drawn a line delineating how much
“much larger” is. Taskila, 819 F.3d at 906.
Ultimately, the Court is hesitant to find that 5,200 national jobs is significant as a matter
of law. Therefore, the ALJ was required to engage in a Trimiar analysis in this case to determine
whether 5,200 national jobs was significant as a matter of fact as applied to Ms. Brandenburg.
See Taskila, 819 F.3d at 905 (Stating that it is “impossible to determine the number of jobs that is
‘significant’ enough—without taking into account [the claimant’s] individual circumstances.”).
As the Tenth Circuit stated, “each case should be evaluated on its individual merits.” Trimiar,
966 F.2d at 1330.
The Court is not convinced that the ALJ engaged in a discussion of the Trimiar factors,
See AR at 26, and the Commissioner does not argue otherwise. See generally Doc. 26. In fact, the
Commissioner argues that Trimiar is no longer applicable because Raymond clarified that the
focus is on the national economy, and Trimiar was concerned with regional jobs. See id. at 4.
However, the Court finds that Trimiar’s factors are still applicable in cases like this, where the

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number of jobs identified on the national level is relatively low. Therefore, “because the ALJ
failed to evaluate the Trimiar factors and make specific factual findings regarding the numerical
significance requirement, we cannot properly review this issue.” Rhodes v. Barnhart, 117 F.
App’x 622, 532 (10th Cir. 2004). As the Tenth Circuit has stated:
Trimiar’s insistence on an antecedent exercise of judgment by the ALJ is not
novel. On the contrary, it is consistent with, if not compelled by, our broader
recognition that as a court acting within the confines of its administrative review
authority, we are empowered only to review the ALJ’s decision for substantial
evidence and … we are not in a position to draw factual conclusions on behalf of
the ALJ.
Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (quotations omitted). Absent the proper
analysis by the ALJ, this Court cannot confidently say that 5,200 jobs, spread across several
regions of the country, are significant as a matter of fact, and the Court declines the
Commissioner’s invitation to find them significant as a matter of law.
V.

CONCLUSION
Wherefore, the undersigned recommends that Plaintiff’s Motion to Reverse

Commissioner’s Administrative Decision and Remand Claim (Doc. 22), be granted, and that this
case be remanded for further administrative proceedings.

________________________________________
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).

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A party must file any objections with the Clerk of the District Court within the fourteenday period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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