Medina v. Social Security Administration

Filing 27

ORDER by Magistrate Judge Steven C. Yarbrough granting 22 Motion to Remand to Agency (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAYMONDO ELARIO MEDINA,
Plaintiff,
v.

Civ. No. 17-589 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER comes before the Court on Plaintiff Raymondo Elario Medina’s Motion
to Remand to Agency for Rehearing (Doc. 22). For the reasons discussed below, the Court
GRANTS Plaintiff’s Motion and remands for proceedings consistent with this Opinion.
I. Background
On June 6, 2013, Plaintiff protectively filed a Title II application for a period of
disability, and disability insurance benefits, as well as a Title XVI application for supplemental
security income. AR 10. Plaintiff claimed disability due to bipolar disorder, venous
insufficiency, pinched nerve in back, seizures, sleep apnea, type 2 diabetes, torn rotator cuff on
right shoulder, lower back pain, knee pain, and chronic inner thigh infections. AR 76. Plaintiff
claimed a disability onset date of December 1, 2011. AR 75-76. Plaintiff’s claims were initially
denied on September 25, 2013, and upon reconsideration on August 8, 2014. AR 10. On August
19, 2016, Plaintiff filed a written request for a hearing. AR 10. The hearing was held on January
7, 2016. On February 26, 2016, the ALJ issued his decision finding Plaintiff not disabled. AR
22.

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Because the parties are familiar with the record in this case, the Court will reserve
discussion of Plaintiff’s relevant medical history for its analysis.
I.

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
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“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. § 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)).
Similarly, 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

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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.
II.

Analysis
Plaintiff raises two issues for review. Plaintiff first contends that the ALJ failed to

include all of Plaintiff’s functional limitations in his RFC finding. Doc. 22 at 1. More
specifically on this point, Plaintiff argues that the ALJ erred in his evaluation of Dr. Ward’s and
Dr. Steinman’s opinions, failed to account for Plaintiff’s obesity, failed to account for Plaintiff’s
mental limitations, and erred in his credibility assessment. Second, Plaintiff contends that the
ALJ erred at Step Five of his decision. Doc. 22 at 2. On this point, Plaintiff contends that the
ALJ erred by only offering two jobs in support of his finding that Plaintiff could perform other
occupations, erred in his assessment that these jobs exist in sufficient numbers in the local or
national economy, and erred in relying on the vocational expert’s testimony. Because the Court
agrees with Plaintiff’s contention that the ALJ failed to resolve an inconsistency between the
RFC and the reasoning levels required for the two occupations the ALJ found Plaintiff could
perform, the Court will remand this case.
In relevant part, the RFC provided that Plaintiff is unable to “perform complex work.”
AR 15. In briefing, both parties appear to agree that this restriction is functionally a restriction to
simple or unskilled work. See Doc. 24 at 19. During the hearing, the ALJ inquired whether there
were jobs available for an individual with Plaintiff’s RFC. Doc. 71. The vocational expert
testified that there were two jobs available: document specialist, DOT 249.587-018, and call-out
operator, DOT 237.367-014. Doc. 71. Both of these positions contain a GED reasoning level of
three.

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In Hackett v. Barnhart, the Tenth Circuit determined that a limitation to simple or
unskilled work appears inconsistent with the demands of Level-3 reasoning. 395 F.3d at 1176.
The Tenth Circuit went on to hold that an ALJ may not conclude that a claimant who is restricted
to simple work can perform a Level-3 job without addressing this conflict. Id. Such an
“inconsistency requires remand so that the ALJ can address the apparent conflict between [the
plaintiff’s] inability to perform more than simple and repetitive tasks and the level-three
reasoning required by the jobs identified as appropriate for her [or him] by the VE.” BrownMueller v. Colvin, No. 13-537, 2015 U.S. Dist. Lexis 38418, at *8-9 (D. Colo. Mar. 25, 2015).
Defendant does not contend that no conflict existed between the vocational expert’s
testimony and the RFC or that the ALJ appropriately resolved such a conflict. Defendant instead
argues that the Tenth Circuit has issued conflicting decisions concerning the significance of GED
reasoning levels. While acknowledging Hackett, Defendant highlights unpublished Tenth
Circuit decisions indicating that GED reasoning levels “do not describe specific mental or skill
requirements of a particular job” but instead describe “the general educational background that
makes an individual suitable for the job.” Anderson v. Colvin, 514 Fed. App’x 756, 764 (10th
Cir. 2013); see also Mounts v. Astrue, 479 Fed. App’x 860, 868 (10th Cir. 2012) (stating that
GED reasoning levels are “the level of formal and informal education required to perform a
specific job”). Defendant accordingly contends that the Court should adopt the reasoning of
Anderson and Mounts.
The Court has addressed this conflict before. In Castillo v. Colvin, the Court
acknowledged Anderson but determined that because it was an unpublished decision, it did not
obviate the Court’s responsibility to follow Hackett. Civ. No. 14-978, Doc. 27 at 13 n.3 (D.N.M.
Jan. 5, 2016). The Court further stated that although the defendant raised a “number of valid

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points apparently not considered in Hackett…these points amount to an argument that Hackett
was wrongly decided and do nothing to address whether Hackett is controlling.” Id. at 12. The
Court emphasized that under Hackett “when a claimant is limited to simple tasks, the ALJ must
address a claimant’s ability to perform Level-3 work in a factually specific manner.” Id. The
Court accordingly held that “even if the Court were to accept Defendant’s argument that an ALJ
may disregard the GED reasoning level in deciding whether an educated individual like
[claimant] has to ability to work in a given occupation, the Court would still have to remand to
allow the ALJ to engage in the analysis of whether doing so in this case is appropriate.” Id. at
13.
In the present case, the ALJ did not address the apparent conflict between the RFC and
the vocational expert’s testimony that Plaintiff could perform two jobs with a reasoning level of
three. Having rejected Defendant’s argument that the Court should follow Anderson and Mounts,
the Court concludes that remand is required in order for the ALJ to resolve the inconsistency
between the RFC and the occupations the ALJ found Plaintiff could perform.
Conclusion
For the foregoing reason, the Court GRANTS Plaintiff’s Motion to Remand to Agency
(Doc. 22).

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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