Sandoval v. Social Security Administration
Filing
37
ORDER by Magistrate Judge Jerry H. Ritter granting 26 Motion to Remand to Agency. Judgment in Plaintiff Sandoval's favor to be entered concurrently. (sjl)
Case 1:21-cv-00471-JHR Document 37 Filed 06/28/23 Page 1 of 22
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FLORENCIO SANDOVAL, JR.,
Plaintiff,
v.
No. 1:21-cv-00471-JHR
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Florencio Sandoval, Jr.’s Motion to Reverse and/or Remand
the Commissioner of Social Security’s final decision. [Doc. 26]. Pursuant to 28 U.S.C. § 636(c)
and Federal Rule of Civil Procedure 73(b), the parties consented to United States Magistrate
Judge Jerry H. Ritter resolving Sandoval’s challenge to the Commissioner’s Final Decision on
his application for Social Security benefits and entering Final Judgment in this appeal.
[Docs. 30–33].1 Having reviewed the parties’ briefing and the Administrative Record, the Court
grants Sandoval’s motion, reverses the Commissioner’s Final Decision denying benefits, and
remands this case to the agency for rehearing.
I.
INTRODUCTION
Administrative Law Judges (“ALJs”) deciding cases for the Social Security
Administration must consider voluminous evidence and make fact findings to determine whether
claimants are disabled. These fact findings include deciding which sources of medical
information are most credible, what the medical information means for the claimant’s ability to
work, whether any work exists that the claimant can do, and whether that work exists in
1
Documents 3–5, 10, 11, and 30–33 are text-only docket entries viewable on the CM/ECF system.
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“significant numbers” in the regional or national economy. Each finding must be supported by a
modicum of evidence and reason, and if they are properly made, they are deemed conclusive
facts.
Sandoval challenges many of the fact findings made and the manner in which the ALJ
below made them. One of his challenges succeeds. Sandoval is mostly incorrect: the ALJ
below properly considered the medical evidence presented and sources from which it issued, and
the ALJ properly found that there is some work which Sandoval can do. The ALJ’s findings on
these points were supported by clear reasoning and substantial evidence. However, the ALJ’s
finding that these jobs existed in “significant numbers” in the national economy was supported
by neither reason nor evidence. Sandoval’s case must thus be remanded for clearer fact-finding
on this point, something only the Administration may do.
II.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Florencio Sandoval, Jr., protectively applied for disability insurance benefits
(“DIB”) under Title II of the Social Security Act and supplemental security income (“SSI”)
under Title XVI of the Act in August 2019, claiming disability beginning January 2017.
Administrative Record (“AR”) at 202–19.2 The Administration denied Sandoval’s applications
initially in January 2020, AR at 81–82, and on reconsideration in March the same year. AR at
103–04. Sandoval persisted and was granted a hearing before ALJ Stephen Gontis. AR at 145–
46, 163–67.
Sandoval dealt with medical issues for years leading up to his applications for benefits.
Since 2007, he has been treated for chronic disc degeneration and osteoarthritis of his lumbar
spine, as well as pain associated with those conditions. AR at 315–16. From 2007 to 2013,
2
Document 17 comprises the sealed Certified Transcript of the Administrative Record. The Court cites the
Record’s internal pagination rather than the CM/ECF document number and page.
2
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Sandoval’s treatment regimen also addressed problems with chronic asthma, high blood
pressure, bulging discs in the lumbar spine, obesity, and opioid dependence. AR at 324–25, 327,
333, 337, 340, 344, 350, 352, 354, 366. His back pain fluctuated between four and eight on a
ten-point scale; medical records show he was prescribed oxycodone to control it. See AR at 347,
356, 358 (noting subjective pain ratings); 407 (oxycodone prescription). During this time,
Sandoval worked as an automotive instructional technician at a community college. AR at 38,
237–39.
Sandoval’s medical situation worsened in late 2016 when he was rear-ended while
driving and sustained a left ankle injury. AR at 571–72. Although Sandoval did not seek
treatment for his ankle right away, he would ultimately be treated for a talar dome fracture with
splinting and physical therapy for over a year and eventual surgery. AR at 574–77, 665–68.
Throughout the treatment process, Sandoval continued to be prescribed opioids for pain relief.
See AR at 577. Weeks after he was rear-ended, Sandoval’s supervisor terminated his
employment. AR at 39, 237–39. According to Sandoval, this was because of “differences of
opinion” and because his supervisor believed Sandoval moved a trash can improperly. AR at 39.
Sandoval has not performed any other substantially gainful work since he was terminated. See
AR at 258.
Dr. Jorge Sedas, M.D., one of Sandoval’s long-time treating physicians, opined twice
during the application process that Sandoval’s physical limits made him unable to work. In
August 2019, Dr. Sedas wrote to the Administration that “Sandoval has had ongoing difficulties
with non-healing injuries in his foot and ankle” which, in his opinion, “resulted in [Sandoval]
being disabled from any gainful employment.” AR at 742. In September 2020, Dr. Sedas
elaborated on his views in a medical source statement. AR at 766–70. He opined that
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Sandoval’s pain would frequently interfere with his attention and concentration while working;
that he would not be able to tolerate any emotional stress at work, even in “low stress” jobs; and
that Sandoval’s impairments make him unable to sit for more than thirty minutes at a time, stand
for more than fifteen minutes at a time, or walk more than one city block without rest or severe
pain. AR at 767–68. Dr. Sedas also wrote that Sandoval would need periods to lie down during
the workday, that he required an assistive device to walk, and that Sandoval can never lift even
less than ten pounds in the work environment, nor could he twist, stoop, crouch, climb ladders,
or climb stairs. AR at 768–69. In response to the question “Are your patient’s impairments
likely to produce ‘good days’ and ‘bad days’?” Dr. Sedas checked “No,” and wrote in the
margin, “they are all ‘bad days.’” AR at 769.
All other medical sources consulted during the application process agreed that Sandoval’s
ability to work was impaired but that he had fewer limitations than Dr. Sedas suggested. Dr.
Brittany Coffman, M.D., reviewed Sandoval’s medical records and performed a consultative
examination in December 2019. See AR at 749–54. She opined that Sandoval could, with
support from an ankle brace, stand and walk for four to six hours during an eight-hour workday
despite tenderness and decreased range of motion in his left ankle as well as limits on his ability
to use his thoracic and lumbar spine. AR at 754. She also found that Sandoval could sit for eight
hours of the workday; carry and lift twenty pounds frequently; reach, handle, feel, grasp, and
finger frequently; and bend, stoop, crouch, or squat occasionally despite spinal and ankle
limitations. AR at 754. Dr. William Fleming, M.D., and Dr. Edward S. Bocian, M.D., reviewed
Sandoval’s medical records on initial consideration and reconsideration, respectively, and
reached similar conclusions. See AR at 87–90, 112–116.
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ALJ Gontis held Sandoval’s hearing in December 2020. AR at 33. After hearing
testimony from Sandoval and from a vocational expert, as well as statements from Sandoval’s
attorney, ALJ Gontis denied benefits. AR at 15. Sandoval sought relief from the Appeals
Council, which denied review and made ALJ Gontis’s decision final.3 AR at 1, 8. Sandoval then
timely appealed. [Doc. 1]. His case was assigned to me, and the parties consented to my
presiding. [Docs. 30–33]. Sandoval moved to reverse the Commissioner’s decision in February
2022, the Commissioner responded in opposition in May, and Sandoval replied in June,
completing briefing. [Docs. 26, 34, 35].
III.
THE COMMISSIONER’S FINAL DECISION
Claimants seeking disability benefits must establish they are 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).4 The Administration applies a five-step analysis to determine eligibility for
benefits.5
At step one of his analysis, ALJ Gontis found that Sandoval met the insured status
requirements of the Social Security Act through March 31, 2022, and that he had not engaged in
substantial gainful activity since his alleged disability onset date. AR at 20. At step two, he
Claimants who are denied benefits by the Administration must obtain a “final decision” from the Administration
before they may appeal the denial to a federal district court. See 42 U.S.C. § 405(g). Generally, when the
Administration’s Appeals Council denies review after the ALJ denies benefits, the ALJ’s decision is “final” enough
for a district court to review. 20 C.F.R. § 422.210(a); see also Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.
2003) (finding that the Appeals Council’s denial of review made an ALJ’s decision to deny benefits “the
Commissioner’s final decision for purposes of review”).
4
Regulations for determining whether a claimant is disabled for purposes of for both DIB and SSI are identical but
nonetheless codified in two separate parts of the Code of Federal Regulations. Part 404 of Title 20 governs DIB
while Part 416 governs SSI. The Court cites only the applicable regulations in Part 404, but the analogous
regulations in Part 416 apply as well.
5
These steps are summarized in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016).
3
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found that Sandoval had three severe impairments: degenerative disc disease of the lumbar
spine, degenerative joint disease of the left ankle, and obesity. Id. ALJ Gontis also found that
Sandoval’s opioid dependence was non-severe and thus posed no more “than a minimal
restriction on [Sandoval’s] ability to perform basic work activities[.]” AR at 21. At step three,
ALJ Gontis found that Sandoval’s impairments, individually and in combination, did not meet or
medically equal any impairment listed in Appendix 1 to C.F.R. Title 20, Part 404, Subpart P. Id.
When a claimant does not meet a listed impairment, the ALJ must determine the
claimant’s residual functional capacity. 20 C.F.R. § 404.1520(e). Residual functional capacity
is a multidimensional description of the work-related abilities a claimant retains despite his
impairments. Id. at § 404.1545(a)(1). It “does not represent the least and individual can do
despite his or her limitations, but the most.” Social Security Ruling (“SSR”) 96-8p at Definition
of RFC.6 ALJ Gontis determined that Sandoval could
perform light work as defined in 20 CFR 404.1567(b) . . . except that [Sandoval]
can occasionally climb ramps and stairs, never climb ladders, ropes or scaffolds,
occasionally balance, stoop, kneel, crouch and crawl.
AR at 22. ALJ Gontis stated he reached these conclusions after considering all of Sandoval’s
symptoms and the consistency of those symptoms with all record evidence as required by 20
C.F.R. §§ 404.1520c, 404.1529, and SSR 16-3p. AR at 22.
ALJ Gontis supported his residual functional capacity findings with a thorough review of
record evidence. He first acknowledged Sandoval’s self-described symptoms and limitations,
including pain in his back and ankle; difficulty walking, standing, and exerting himself
generally; and “reported medication side effects of drowsiness.” AR at 22–23. ALJ Gontis also
provided a short description of Sandoval’s daily routine, which involved caring for his daughter,
6
All SSRs can be accessed free of charge at https://www.ssa.gov/OP_Home/rulings/rulings.html. Pin citations to
SSRs refer to headings in the SSR because the Administration does not paginate its rulings.
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yard work, errands, and lying down “multiple times during the day.” AR at 23. ALJ Gontis then
detailed Sandoval’s medical treatments since December 2016 and Dr. Sedas’s opinion that
Sandoval could not perform even sedentary work. See id. ALJ Gontis concluded based on this
information that Sandoval’s “medically determinable impairments could reasonably be expected
to cause [his] alleged symptoms” but that his “statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical evidence and
other evidence in the record[.]” AR at 24. ALJ Gontis then discussed other parts of Sandoval’s
medical history which suggested that his medical conditions have been stable, manageable, and
improving in several respects. See AR at 24–26. This included descriptions of each medical
source’s opinions and explanations for why ALJ Gontis found Drs. Coffman, Fleming, and
Bocian persuasive but did not give much weight to Dr. Sedas’s opinions. AR at 25–26. For
example, ALJ Gontis acknowledged that Dr. Sedas said Sandoval would need an assistive device
to walk and contrasted this statement with contrary medical opinions and noted that no medical
records reflected Sandoval actually used an assistive device to walk. AR at 24–26. ALJ Gontis
thus concluded that, “[w]hile it is clear that [Sandoval] has severe physical impairments, the
totality of the evidence supports no more limitation that [sic] that in the residual functional
capacity.” AR at 26.
ALJ Gontis found at steps four and five that Sandoval could not return to his past work
but that he could do other work and thus was not disabled. See AR at 26–28. ALJ Gontis
adopted the hearing testimony of vocational expert Diane Weber, who stated that the demands of
Sandoval’s prior job as a vocational training instructor exceeded his residual functional capacity,
so he could not be found non-disabled at step four. AR at 26. Weber also stated, however, that at
least five occupations existed which Sandoval perform, and that 67,000 jobs existed in the
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national economy within these professions which would provide substantially gainful work. AR
at 27–28. ALJ Gontis stated that these occupations, as described in the Dictionary of
Occupational Titles and by Weber, were consistent with Sandoval’s residual functional capacity.
AR at 28. Then, without further explanation, ALJ Gontis stated that “the claimant is capable of
making a successful adjustment to other work that exists in significant numbers in the national
economy.” Id. (emphasis added). Sandoval was thus deemed not disabled since his alleged
onset date and his applications for benefits were denied. Id.
IV.
STANDARD OF REVIEW
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). The Commissioner’s findings are
conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,
requiring more than a scintilla but less than a preponderance. See 42 U.S.C. § 405(g); Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision is not based on substantial evidence if
it is overwhelmed by other record evidence. Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175
(10th Cir. 2014).
V.
ISSUES PRESENTED
(a) Whether ALJ Gontis sufficiently considered Dr. Sedas’s opinions?
(b) Whether ALJ Gontis sufficiently considered the effects of Sandoval’s pain medication
on his residual functional capacity?
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(c) Whether ALJ Gontis sufficiently considered the effects of Sandoval’s obesity on his
residual functional capacity?
(d) Whether Sandoval’s residual functional capacity was inconsistent with some of the
occupations provided by Weber?
(e) Whether ALJ Gontis reversibly erred by failing to support his numerical significance
finding at step five?
VI.
ANALYSIS
a. Dr. Sedas’s Opinions
i. Parties’ Arguments
Sandoval first argues that ALJ Gontis erred by failing to properly consider Dr. Sedas’s
opinions on Sandoval’s impairments. He points out that Dr. Sedas gave specific opinions on
Sandoval’s physical limitations which, if found true, would strongly support finding Sandoval
disabled. [Doc. 26, p. 21]. Sandoval then asserts that ALJ Gontis’s discussion about Dr. Sedas’s
opinion selectively highlighted evidence in the record which rebutted Dr. Sedas’s positions,
ignored evidence which would have supported them, and failed to consider some elements of Dr.
Sedas’s opinion. Id. at 21–22. Sandoval also implies that ALJ Gontis should have deferred to
Dr. Sedas in accordance with the “treating physician rule” articulated in 20 C.F.R. § 404.1527.
Id. at 19–20. These failures were, to Sandoval, legal error requiring reversal and remand.
The Commissioner argues that ALJ Gontis merely found Dr. Sedas’s opinion
unpersuasive based on other evidence and that he had the discretion to do so. [Doc. 34, pp. 7–
11]. ALJ Gontis, she says, discussed Dr. Sedas’s opinion as required and then explained that he
found it unpersuasive because it was inconsistent with the other three medical opinions in the
record and with some of the other evidence. Id. at 9–10. His decision to do so was supported by
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substantial evidence, and Sandoval’s argument to the contrary is merely asking this Court to
reweigh evidence. Id. at 11. Additionally, the Commissioner points out that the rules under 20
C.F.R. § 404.1527 do not apply to this case. Id. at 7 n.4.
ii. Relevant Law
The Administration must consider all evidence before it, including opinions from medical
sources, to determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(3). Medical
opinions are not given deference based on their source but must be considered and weighed for
their persuasiveness.7 Id. at § 404.1520c(a). The primary factors considered by the
Administration when weighing an opinion’s persuasiveness are how well the opinion is
supported by other evidence and its consistency with other evidence. Id. at § 404.1520c(b)(2).
In their decisions granting or denying benefits, ALJs must articulate how persuasive they found
each medical source opinion according to supportability and consistency to explain why some
opinions were adopted and others were not. See id. at § 404.1520c(b). All fact findings by the
ALJ are conclusive if supported by more than a scintilla of evidence. 42 U.S.C. 405(g); Lax, 489
F.3d at 1084.
iii. Application
ALJ Gontis satisfied the consideration and articulation requirements for medical source
opinions and supported his findings with substantial evidence, so the Court cannot reverse on
Sandoval argues that the Court should apply the “treating physician rule” as articulated in Broadbent v. Harris, 693
F.2d 407, 412 (10th Cir. 1983) and ignore the no-deference rules in 20 C.F.R. § 404.1520c. [Doc. 26, pp. 19–20].
As he puts it, the Administration “cannot, by regulatory fiat, undo established Court precedent[.]” [Doc. 26, p. 20].
The argument is unpersuasive for two reasons. First, Sandoval cites no law to suggest that the Administration
cannot, through typical rulemaking, create new regulations which effectively set aside judicially made rules.
Second, the Supreme Court has held that prior judicial construction of a statute forecloses the agency from
interpreting the statute differently only “if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). This Court has thus rejected an identical argument before.
See Manzanares v. Kijakazi, 2022 WL 4129411 at *4 (D.N.M. Sept. 12, 2022) (slip op.) (unpublished). Sandoval
gives the Court no reason to change course now.
7
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this ground. ALJ Gontis’s discussion of the evidence plainly shows he considered Dr. Sedas’s
opinion. See AR at 23–26. He accurately presented Dr. Sedas’s opinion that Sandoval’s ability
to work is so limited that he can perform neither his past relevant work nor any other occupation.
AR at 23. ALJ Gontis then acknowledged that three other physicians disagreed with Dr. Sedas’s
opinion and cited specific medical evidence which suggested that Dr. Sedas’s proposed
limitations were not supported by the entire record. AR at 24–26. For example, in response to
Dr. Sedas’s opinion that Sandoval would need a cane or other assistive device to walk, ALJ
Gontis pointed out that Sandoval was never observed by any medical provider using or in need
of an assistive device and that Sandoval’s own daily routine involving yard work, errands, and
chores suggested he did not need an assistive device. AR at 25. ALJ Gontis also addressed the
opinions of each medical source individually and explained why he found that Drs. Coffman,
Fleming, and Bocian provided opinions more consistent with the record than Dr. Sedas and that
he was thus persuaded by their opinions. AR at 25–26. By addressing each medical source and
citing specific evidence which he believed showed the supportability and consistency of those
sources’ opinions with the record, ALJ Gontis satisfied the requirements of 20 C.F.R.
§§ 404.1520 and 404.1520c and supported his findings with more than a scintilla of evidence.
Sandoval argues that ALJ Gontis erred by giving medical records showing “normal
findings” greater weight than those which favored finding Sandoval disabled. [Doc. 23, pp. 21–
22]. The argument does not hold water. It may be true that the record contains both evidence
which could reasonably support finding Sandoval disabled and evidence which shows “normal
findings.” Even so, this means that the record contains inconsistent or conflicting evidence and
the ALJ must “consider the relevant evidence and see if [h]e can determine whether [the
claimant is] disabled based on the evidence [h]e ha[s].” 20 C.F.R. § 404.1520b(b)(1). The
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regulations do not say that the ALJ must resolve these inconsistencies by weighing favorable
evidence more heavily; rather, the ALJ exercises his discretion to weigh the evidence and make a
determination. See Lax, 489 F.3d at 1084 (“The possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence”) (quoting Zoltanski v. Fed. Aviation Admin., 372 F.3d 1195,
1200 (10th Cir. 2004)) (quotation marks omitted). That is what ALJ Gontis did, and this Court
cannot reverse that decision.
b. Medication Side-Effects
i. Parties’ Arguments
Sandoval argues next that ALJ Gontis did not sufficiently consider the effects of
Sandoval’s prescribed painkillers on his ability to work and that this also warrants remand.
Sandoval stated during his hearing that he takes opioid pain medication three times per day and
that, after each dose, he becomes drowsy for about an hour. [Doc. 26, p. 23]. Vocational expert
Weber testified during the hearing that, if Sandoval were off-task for more than forty-eight
minutes each day, he would not be employable. Id. In Sandoval’s view, ALJ Gontis was
required to either incorporate limitations into his residual functional capacity findings to account
for Sandoval’s drowsiness or explain why no mental limitations related to Sandoval’s medication
side-effects were incorporated. Id. The Commissioner responds that this is another issue where
the ALJ’s decision not to incorporate such limitations was a matter of weighing evidence and
that Sandoval again wants this Court to improperly reweigh evidence in his favor. [Doc. 34,
p. 11–12].
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ii. Relevant Law
Claimants bear the burden to prove their residual functional capacity to the
Administration when applying for disability benefits. 20 C.F.R. §§ 404.1512(a)(1),
404.1545(a)(3). The requirement that the Administration must consider all evidence before it to
determine the residual functional capacity extends to a claimant’s statements about his subjective
symptoms. See id. at § 404.1520c(b); SSR 16-3p at Consideration of Other Evidence. Although
he must consider this evidence, the ALJ is still the sole authority who may weigh it and his
findings are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Smith v.
Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016). And even though he must consider all evidence,
the ALJ is not required to address every piece of evidence in the record for his decision to be
supported by substantial evidence. Wall v. Astrue, 561 F.3d 1048, 1067 (10th Cir. 2009).
iii. Application
ALJ Gontis satisfied the consideration requirements for this evidence and supported his
findings with substantial evidence, so the Court cannot reverse on this ground either. ALJ
Gontis showed that he considered the side-effects of Sandoval’s opioid use by discussing his
non-severe opioid dependence and briefly recognizing that Sandoval described feeling drowsy
after taking his pain medication. AR at 21, 23. As discussed above, ALJ Gontis also discussed
Sandoval’s daily activities and noted that Sandoval was alert, oriented, and showed no memory
or concentration deficits during examinations. AR at 21, 23–24. These statements in ALJ
Gontis’s decision show that he subjectively considered but assigned little weight to the impairing
effects of Sandoval’s medication, as he had discretion to do.
Sandoval is correct that ALJ Gontis did not specifically explain why his residual
functional capacity findings did not include limitations on Sandoval’s ability to persist with and
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concentrate on tasks. See [Doc. 26, p. 23]. This was not error. The only evidence Sandoval
produced to show that he might be limited in those capacities were his oxycodone prescription
and that he said, during his hearing, that his medication makes him drowsy. See AR at 41–42,
315. Sandoval’s oxycodone prescription began in at least 2007 and continued through 2017, at
the same dose, as he worked for roughly ten years. See AR at 315, 633. Indeed, almost all the
records Sandoval cites in his argument on this point are records showing pre-disability date
prescriptions. See [Doc. 26, p. 23] (citing AR at 407, 405, 403, 401, 399, 397, 396, 394, 392,
388–90, 327–31, 409, 386–87, 652–55). Meanwhile, Sandoval’s sole statement about
drowsiness cannot, on its own, prove he is disabled. See SSR 16-3p at The Two-Step Process
(“We will not find an individual disabled based on alleged symptoms alone”). Sandoval’s
evidence on this point only narrowly suggested that he was mentally limited and other evidence
contradicted such a finding. ALJ Gontis’s decision not to incorporate mental limitations on
Sandoval’s concentration and persistence was thus supported by substantial evidence and the
Court cannot reverse on this ground.
c. Obesity in the Residual Functional Capacity
i. Parties’ Arguments
Sandoval directs the Court to evidence that he, at times, weighed nearly three-hundred
and sixty pounds and that Dr. Sedas advised him that his negative symptoms are worsened by
obesity. [Doc. 26, p. 23] (citing AR at 349). He then argues that ALJ Gontis erred by merely
stating that “he consider[ed] Plaintiff’s obesity in formulating the [residual functional capacity],”
but “never mention[ed] or consider[ed] that Plaintiff’s long time treating physician says that his
weight is a large factor in the severity of his symptoms.” Id. Kijakazi counters that ALJ Gontis
satisfied the consideration requirements by expressly acknowledging Sandoval’s obesity and
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supported his findings with substantial evidence from throughout the record. [Doc. 34, p. 13].
She further argues that it was Sandoval’s burden to establish his residual functional capacity and
he cites no evidence to suggest that his obesity called for additional or different limitations than
those imposed by ALJ Gontis’s residual functional capacity findings. Id.
ii. Relevant Law
As discussed above, the Administration must consider all the evidence claimants put
before it; this includes evidence of obesity and its effect on the claimant’s ability to work. 20
C.F.R. § 404.1520(a)(3); SSR 19-2p at How do we Consider Obesity in Assessing a Person’s
RFC? When an ALJ says he considered the evidence, courts generally take him at his word. See
Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005). Further, ALJs are not required to
discuss every piece of evidence in the record so long as a reviewing court can follow their
reasoning. Wall, 561 F.3d at 1067.
iii. Application
Sandoval’s argument does not show that ALJ Gontis failed to consider obesity evidence
or erred in how he did so, so the Court cannot reverse on this ground. Sandoval’s sole argument
on this point is that ALJ Gontis did not expressly acknowledge “that Plaintiff’s long time [sic]
treating physician says that his weight is a large factor in the severity of his symptoms.”
[Doc. 26, p. 23]. But he does not explain what additional limitations his obesity calls for which
are not already in the residual functional capacity findings, nor does he cite rules or case law to
suggest that this kind of finding needs to be expressly discussed. See id. Meanwhile, binding
case law says that this Court should take ALJ Gontis at his word when he writes that he has
subjectively considered evidence (see Hackett, 395 F.3d at 1173) and his short-shrift treatment of
Sandoval’s obesity does not obscure his overall reasoning, so it does not appear erroneous. See
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Wall, 561 F.3d at 1067. Sandoval’s obesity evidence argument thus is not proper grounds to
reverse the decision below.
d. Inconsistencies Between Residual Functional Capacity and Other Work
i. Parties’ Arguments
According to Sandoval, ALJ Gontis erred because he relied on vocational expert Weber’s
testimony that Sandoval could perform some “light work” jobs even though “light work” usually
calls for about six hours of standing or walking during the workday and ALJ Gontis’s
hypothetical residual functional capacity only permitted four hours of standing or walking.
[Doc. 26, pp. 23–24]. The Commissioner argues in response that the jobs Weber provided,
though classified as light work, did not actually contradict Sandoval’s residual functional
capacity so there was no error. [Doc. 34, p. 16].
ii. Relevant Law
At step five, the burden to prove disability shifts from the claimant, who has shown he
cannot perform his past relevant work, to the Administration, which must identify other work the
claimant can still perform despite his limitations. 20 C.F.R. § 404.1660(c). The occupations
identified at step five must encompass jobs which exist in “significant numbers” in the national
or regional economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c)(2). It is reversible
error for the ALJ to rely upon any occupation at step five which is incompatible with the
claimant’s residual functional capacity, and he thus cannot perform, unless other occupations
relied upon provide so many jobs that no reasonable fact finder could conclude there are not jobs
in significant numbers in the economy for the claimant. See Allen v. Barnhart, 357 F.3d 1140,
1144 (10th Cir. 2004).
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Occupations conflict with a claimant’s residual functional capacity when they require
abilities or skill the claimant lacks. For example, to perform the full range of light work
occupations, a claimant must be able to stand or walk, off and on, for a total of six hours in an
eight-hour workday. SSR 83-10 at Glossary, Exertional Level (Level of Exertion) (defining
“light work”). It is thus error for an ALJ to find that a claimant can perform a full range of light
work if all available evidence shows that the claimant can stand or walk, off and on, for just four
hours in an eight-hour workday. See SSR 00-4p at Evidence That Conflicts With SSA Policy.
However, the requirements of some light work occupations deviate in practice from the
requirements of light work given in SSRs and the Dictionary of Occupational Titles. See Anders
v. Berryhill, 688 F. App’x 514, 519–20 (10th Cir. 2017) (unpublished). Vocational experts can,
based on their expertise, testify to whether an occupation categorized as light work can be
performed by someone with a residual functional capacity that sits between the requirements for
a full range of light work and a full range of sedentary work. See id. at 520. ALJs can rely on
this testimony if the conflicts between the Dictionary of Occupational Titles job description and
the claimant’s residual functional capacity are sufficiently explained. See id.
iii. Application
Sandoval does not show that ALJ Gontis erred because, to the degree that the light work
occupations ALJ Gontis adopted were inconsistent with Sandoval’s hypothetical residual
functional capacity, those inconsistencies were accounted for and reconciled by Weber’s
testimony. The Court thus cannot reverse on this ground.
During Sandoval’s hearing, ALJ Gontis told Weber to assume a hypothetical residual
functional capacity of an individual who
can lift, carry, push, and pull no more than 20 pounds occasionally and 10 pounds
frequently . . . would be limited to no more than six hours of sitting and four hours
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of standing or walking in an eight-hour workday . . . [l]imited to occasional left foot
controls . . . occasional climbing of ramps and stairs, never climbing ladders, ropes,
or scaffolds, occasional balance, stoop, kneel, crouch, and crawl.
AR at 65. ALJ Gontis described this as “a modified light set of light work[.]” Id.8 Weber then
testified that someone with this residual functional capacity would be able to perform some light
work jobs and some sedentary jobs. AR at 66. The light work occupations were “office helper,”
described at Dictionary of Occupational Titles number 239.567-010; “ticket seller,” occupational
title number 211.467-030; and “silver wrapper,” occupational title number 318.687-018. AR at
66–70. For each of these occupations, Weber described the tasks involved – photocopying and
filing papers, handing out or taking tickets, and wrapping or rolling silverware, respectively –
and how those tasks are typically performed while standing but, in Weber’s expert opinion, could
often be performed while sitting, thus reducing the standing and walking requirements common
to other light work occupations. AR at 66–70. These descriptions were consistent with the
language used in the Dictionary of Occupational Titles to describe each job and reconciled the
light work classification with a residual functional capacity between light and sedentary work.
Thus, ALJ Gontis’s adoption of these occupations at step five was not erroneous.
Sandoval argues that ALJ Gontis “fails to meaningfully evaluate [Weber’s] testimony
that, despite the [Dictionary of Occupational Titles] definition and [Administration] policy, the
light jobs identified by him do not require six hours of standing in an eight-hour workday.”
[Doc. 26, p. 24]. The argument ignores Weber’s explanations for the light work jobs he
suggested and assumes that a claimant who cannot perform all light work occupations must not
be able to perform any light work. As discussed above, both Administration policy and Tenth
Circuit case law cut against this assumption. See SSR 00-4p at Reasonable Explanations for
8
It should be noted that the hypothetical residual functional capacity Weber considered was more limited than
Sandoval’s actual residual functional capacity. See AR at 22.
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Conflicts (or Apparent Conflicts) in Occupational Information (explaining how ALJs may rely
on a vocational expert’s testimony “to provide more specific information about jobs or
occupations than the [Dictionary of Occupational Titles]”); Anders, 688 F. App’x at 520 (finding
that an ALJ permissibly relied upon a vocational expert’s education and experience to find that
the claimant could perform a some light work despite having a residual functional capacity
which permitted the claimant to perform less than a full range of light work).
e. “Significant Numbers” Findings
i. Parties’ Arguments
Finally, Sandoval argues that the Commissioner’s decision must be reversed and
remanded based on the rules set forth in Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992).
Although ALJ Gontis found that the 67,000 jobs available to him within the occupations
recommended by vocational expert Weber constituted jobs in “significant numbers in the
national economy,” Sandoval complains that ALJ Gontis did not explain why 67,000 jobs is a
significant number of jobs, nor did he expressly consider factors listed by the Trimiar court to
support this finding. [Doc. 26, p. 24–25]. This was error which requires remand. The
Commissioner, however, argues that ALJ Gontis implicitly considered several Trimiar factors;
that 67,000 jobs is enough to satisfy the “significant numbers” requirement as a matter of law
under several Tenth Circuit cases; and that some Trimiar factors did not need to be considered at
all. [Doc. 34, pp. 17–19].
ii. Relevant Law
As discussed above, the Administration has the burden to show the claimant can perform
work other than his past relevant work at step five. Haddock v. Apfel, 196 F.3d 1084, 1088 (10th
Cir. 1999). Claimants are not disabled if work identified at step five exists in “significant
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numbers” regionally or nationally. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1566(b).
Whether that work exists in significant numbers is a fact finding which must be supported by
substantial evidence. See Allen, 357 F.3d at 1144. Further, ALJs generally must support their
numerical significance finding by considering certain factors adopted by the Tenth Circuit. See
Trimiar, 966 F.2d at 1330. Those factors are the level of claimant’s disability; the reliability of
the vocational expert’s testimony; the distance claimant can travel to engage in the assigned
work; the isolated nature of the jobs; and the types and availability of such work. Id. at 1330
(quoting Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988)). Taken together, the Act’s
requirement that findings be supported by substantial evidence and the explanatory requirements
articulated in the case law suggest that the ALJ must either cite specific and substantial evidence
to support finding that the number of jobs available to the claimant is “significant” or explain
why other evidence already discussed supports a finding of numerical significance. Failure to do
either will be harmless error only if so many jobs exist in the regional or national economy that
no reasonable fact finder could find against numerical significance. See Allen, 357 F.3d at 1145
(holding that failure to make a proper “significant numbers” finding can sometimes be harmless
error); Stokes v. Astrue, 274 F. App’x 675, 684 (10th Cir. 2008) (unpublished) (finding, where
152,000 jobs were available to the claimant nationally, that no “reasonable factfinder could have
determined that suitable jobs did not exist in significant numbers”).
iii. Application
ALJ Gontis did not support with substantial evidence, nor explain clearly, his finding that
67,000 jobs in the national economy constitutes work in “significant numbers.” Nor it this
number great enough to make the error harmless. The Administration’s decision thus must be
reversed and remanded for reconsideration of this issue.
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Although ALJ Gontis supported his findings that Sandoval can perform the five
occupations suggested by Weber, he cited no evidence and provided no discussion to support his
numerical significance finding. He stated only that “[b]ased on the testimony of the vocational
expert . . . [and] considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” AR at 28. The factors ALJ Gontis listed
speak only to whether Sandoval can perform the five occupations listed. They do not speak to
the Trimiar factors or address whether 67,000 jobs in the national economy is enough to support
a finding that Sandoval can perform jobs which exist in significant numbers. ALJ Gontis’s
numerical significance finding thus is not supported by substantial evidence and cannot be
accepted as conclusive. Numerical significance “entails many fact-specific considerations
requiring individualized evaluation” best “left to the ALJ’s common sense,” Allen, 357 F.3d at
1144, but the Court must be able to see that such common sense was actually exercised. The
Court remands so this evaluation can be made on the record.
The Court rejects the Commissioner’s implicit harmless error argument. The
Commissioner cites three Tenth Circuit cases where ALJs’ decisions have been affirmed even
though the ALJs in those cases found that that an even smaller number of jobs in the national
economy was numerically significant. See [Doc. 34, pp. 17–18] (citing Garcia v. Comm’r,
S.S.A., 817 F. App’x 640 (10th Cir. 2020) (unpublished); Botello v. Astrue, 376 F. App’x 847
(10th Cir. 2010) (unpublished); Lynn v. Colvin, 637 F. App’x 495 (10th Cir. 2016)
(unpublished)). The cases are distinguishable. The argument raised by the claimants and
rejected by the court of appeals in each of those cases was that the ALJ was required to solely or
primarily consider whether jobs existed in significant numbers in the regional, not national
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economy. See Garcia, 817 F. App’x at 649; Botello, 376 F. App’x at 850–51; Lynn, 637 F.
App’x at 499 (“Lynn’s argument erroneously focuses solely on the number of available regional
jobs”). None of these cases stand for the proposition that the number of jobs identified in them
would have been numerically significant to any reasonable factfinder. Further, the issue here is
not whether or to what degree ALJ Gontis considered regional jobs, but whether he grounded his
numerical significance finding in any evidence or reasoning at all. This Court cannot identify
any such reasoning in the Commissioner’s final decision, and the number of jobs identified is far
below the 152,000 found by the Tenth Circuit to satisfy the harmless error standard in Stokes,
274 F. App’x at 684, so this case must be remanded.
VII.
CONCLUSION AND ORDER
Wherefore, IT IS THEREFORE ORDERED that Plaintiff Florencio Sandoval, Jr.’s
Motion to Reverse and/or Remand, [Doc. 26], is GRANTED and the Commissioner’s Final
Decision in this case is REVERSED.
_____________________________
Jerry H. Ritter
U.S. Magistrate Judge
Presiding by Consent
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