Rodriguez v. Social Security Administration

Filing 24

ORDER by Magistrate Judge Steven C. Yarbrough denying 20 Motion to Remand to Agency. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARY ANN RODRIGUEZ,
Plaintiff,
v.

Civ. No. 16-1059 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER is before the Court on Plaintiff Mary Ann Rodriguez’s Motion to
Remand to Agency for Rehearing. Doc. 20. For the reasons discussed below, the Court will
DENY Plaintiff’s motion.
I.

Background

Plaintiff initially filed applications for disability insurance benefits and supplemental
security income benefits in September 2009. AR 113, 117. Plaintiff alleged a disability onset
date of March 2008. AR 137. In 2011, Plaintiff’s claims were denied. Subsequently, upon
review by Magistrate Judge Steven Vidmar, Plaintiff’s claims were remanded for further
consideration. See Rodriguez v. SSA, Civ. No. 12-1285, Doc. 21 (D.N.M. Nov. 26, 2013). While
Plaintiff’s claims were pending in federal court, Plaintiff filed a second application alleging a
disability onset date of April 2012, which was ultimately granted. AR 424. This resulted in
Plaintiff’s claims regarding the period between March 2008 and March 2012 being before the
ALJ on remand.
On May 5, 2016, the ALJ held a supplemental hearing on these claims. AR 424. The ALJ
applied the grids and determined that Plaintiff became disabled as of January 9, 2011. Plaintiff
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therefore now appeals the ALJ’s determination that she was not disabled between March 2008,
and January 2011. AR 432. Because the parties are familiar with the record in this case, I will
reserve discussion of Plaintiff’s relevant medical history for my analysis.
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.
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(5) At this point, the burden shifts to the Commissioner to show that claimant is able to
“make an adjustment to other work.” If the Commissioner is unable to make that
showing, claimant is deemed disabled. If, however, the Commissioner is able to make
the required showing, the claimant is deemed not disabled.
See 20 C.F.R. § 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)).
Further, 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

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evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence
in the record. But, it does require that the ALJ identify the evidence supporting the decision and
discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.
III.

Analysis

Plaintiff raises three issues for review. Plaintiff contends that the ALJ failed to include
functional limitations in her RFC that reflect limitations resulting from Plaintiff’s use of a cane.
Second, Plaintiff contends that the ALJ’s RFC failed to account for Plaintiff’s limitations in
overhead reaching. Finally, Plaintiff contends that the ALJ’s decision rests upon unreliable
vocational data. The Court will address these issues in turn.
A. The ALJ Adequately Addressed Plaintiff’s Need to Use a Cane
Plaintiff contends that the ALJ failed to include in her RFC any limitations stemming
from Plaintiff’s need to use a cane. Doc. 20 at 12. Plaintiff argues that use of a cane, itself, does
not constitute a functional limitation but is instead indicative of potential underlying limitations
and restrictions necessitating its use. Plaintiff therefore argues that the ALJ’s inclusion in the
RFC that Plaintiff must use a cane is error because it failed to express Plaintiff’s underlying
limitations in terms of her work-related abilities.
Plaintiff testified at the hearing that she began using a cane in 2008 due to instances of
losing her balance and falling. AR 451, 462. In reviewing the medical evidence, the ALJ noted
that “the variety of assistive devices appear to have been obtained [by Plaintiff] independently.
Rather than doctors recommending items such as wheelchairs, the claimant requested them.”
AR 430. The ALJ expressed skepticism as to an underlying condition necessitating such aids but
noted that the record reflected that Plaintiff’s complaints were consistent. AR 430. The ALJ
further noted that Plaintiff’s voluntary use of the cane likely “eliminated any future need for a

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prescription.” AR 430. The ALJ acknowledged that “[p]roviders also appeared to take the
claimant’s pain seriously and observed some pain behaviors when she would not expect them to
be looking.” AR 430. Based on this acknowledgment, the ALJ found “that a cane is necessary
for walking.” AR 430.
In consideration of Plaintiff’s impairments, the ALJ ultimately determined that Plaintiff
had “the residual functional capacity to perform sedentary work (lift 10 pounds occasionally,
stand/walk for two hours in an eight hour workday and sit for six hours in an eight hour
workday)…except she could never crouch, crawl, or kneel. The claimant could frequently handle
and finger and relied on a cane to walk.” AR 427. The ALJ posed a hypothetical consistent with
the RFC to the vocational expert. AR 469. The vocational expert listed three occupations that
could be performed given these limitations but clarified that the “[dictionary of occupational
titles] does not specifically address the use of a cane, however, my testimony is based on
experience and research into the labor market and employer tolerances.” AR 469-70. The ALJ
therefore found that prior to January 9, 2011, sufficient jobs existed in the national economy that
Plaintiff could perform and found her not disabled during that timeframe. AR 431.
An RFC “is an assessment of an individual’s ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p. “The RFC
assessment must first identify the individual’s functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis.” Soc. Sec. Rep. 96-8p. The
reasoning behind the ALJ’s RFC assessment must be sufficiently clear so as to allow the
reviewing court an adequate opportunity to determine that the correct legal standards were
applied. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012).

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Upon review of the ALJ’s decision, the Court rejects Plaintiff’s argument that the ALJ
failed to account for Plaintiff’s need to use a cane. As Plaintiff acknowledged, the ALJ reviewed
the medical evidence and, despite the lack of any medical documentation supporting such a
determination, gave Plaintiff the benefit of the doubt and found that “a cane [was] necessary for
walking.” AR 430. The Court construes the ALJ’s finding to be that Plaintiff needs to use a cane
at all times when walking. In the RFC, the ALJ accordingly limited Plaintiff to sedentary work
except that Plaintiff should “never crouch, crawl, or kneel” and “reli[es] on a cane to walk.” AR
427. The ALJ posed hypotheticals to the ALJ consistent with this RFC and, in reliance on the
vocational expert’s testimony, determined that there were three sedentary, unskilled jobs existing
in significant numbers in the national economy.
While the Court agrees, in principle, with Plaintiff’s statement that there may be
limitations and restrictions resulting from a claimant’s need to use a cane, Plaintiff herself
identifies no additional restrictions or limitations that would support a more restrictive RFC. As
recognized by SSR 96-9p, the use of a cane, or other medically required hand-held assistive
device, for walking will not generally support functional limitations beyond sedentary unskilled
work. Id. at *7 (“if a medically required hand-held assistive device is needed only for prolonged
ambulation, walking on uneven terrain, or ascending or descending slops, the unskilled sedentary
occupational base will not ordinarily be significantly eroded.”). Further, “an individual who uses
a medically required hand-held assistive device in one hand [such as a cane] may still have the
ability to perform the minimal lifting and carrying requirements of many sedentary unskilled
occupations with the other hand.” Id. In sum, the ALJ adequately encompassed restrictions
resulting from the need for Plaintiff to use a cane and Plaintiff does not identify any limitations

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backed by medical evidence that would call into question the ALJ’s conclusion that she could
perform sedentary, unskilled occupations.
Furthermore, the Court concludes that Plaintiff’s reliance on Hickson v. Colvin, Civ. No.
14-1094, Doc. 28 (Feb. 8, 2016) is distinguishable. The problem in Hickson was not just that the
ALJ included a restriction in the RFC regarding the use of an assistive device, it was that the
ALJ failed to address the assistive device’s relation to Plaintiff’s impairments: tinnitus and mild
hearing loss. See id. at 10-11 (“although the ALJ assessment included the limitation that
[p]laintiff needed a crutch to walk, she neither discussed why that limitation was included in her
RFC assessment, nor did she discuss the implications that such a limitation might have on
Plaintiff’s ability to fulfill work-related requirements.”). By way of example, the court noted that
it was unable to reconcile the limitation in the RFC to the use of the assistive device with the
ALJ’s finding that the plaintiff was able to perform work at all exertional levels given that the
assistive device would likely interfere with the plaintiff’s ability to crouch, lift up to 50 pounds at
a time, or frequently lift or carry up to 25 pounds. Id. at 12.
The present case stands in contrast to Hickson due to the ALJ’s determination that
Plaintiff needed the cane for walking. As noted above, the ALJ limited Plaintiff to sedentary
work but with the further restriction that she should never crouch, crawl, or kneel. The ALJ
accordingly tied Plaintiff’s need to use cane with a restriction targeted toward walking and
therefore limited her to sedentary work. As concluded above, Plaintiff fails to specifically
identify any other restrictions supported by medical evidence that would necessitate reversing the
ALJ’s determination. The Court therefore rejects Plaintiff’s argument on this point.
B. The ALJ Adequately Addressed Plaintiff’s Limitation in Reaching

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Plaintiff contends that the ALJ failed to account for her difficulties in overhead reaching.
Doc. 20 at 14. Plaintiff’s argument on this point borders on being underdeveloped. Plaintiff cites
no medical evidence supporting such a limitation. Further, as noted by Defendant, Plaintiff fails
to show how the ALJ’s failure to include such a limitation is error because none of the jobs
identified by the vocational expert involve overhead reaching. See Call-out Operator, DOT No.
237.367-014, 1991 WL 672186; Document Preparer, DOT 249.587-018, 1991 WL 672349,
Table Worker Position, DOT 739.687-182, 1991 WL 680217. For these reasons, the Court
rejects Plaintiff’s argument.
C. The ALJ’s Finding Regarding the Occupation of Document Preparer is Not Error
As noted above, the vocational expert testified that one representative occupation an
individual could perform with Plaintiff’s RFC was Document Preparer, DOT 249.587-018, 1991
WL 672349. Plaintiff argues that the Court should take judicial notice that the job of document
preparer is obsolete and no longer exists. Alternatively, Plaintiff argues that the Court should
disregard the vocational expert’s testimony that the job exists in sufficient numbers in the
national economy.
Magistrate Judge Karen B. Molzen recently rejected what appears to be the exact
argument attacking the occupational title of document preparer. King v. Berryhill, No. 16-1147
KBM, 2018 WL 851358, *11, (D.N.M. Feb. 12, 2018). In reliance on Miliam v. Colvin, No. 16824-CBS, 2017 WL 2438991, *13 (D.Colo. June 6, 2017), Magistrate Judge Molzen explained
that “the DOT is among five sources of ‘reliable job information’ noted in the Commissioner’s
regulations” and is entitled to deference. King, 2018 WL 851358 (internal quotation marks
omitted). Thus, “Plaintiff’s contentions on this issue are more a disagreement with the
Commissioner’s continued reliance on the DOT” and are better addressed to the Commissioner

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in a request to amend the regulation.” Id. (citing Miliam 2017 WL 2438991, *13).
Further, in regard to Plaintiff’s contention that the numbers of available document
preparer jobs “varies wildly,” Magistrate Judge Molzen concluded that the Plaintiff cited “no
other case, rule, or regulation that would require the ALJ to question the VE further about the
number of jobs the VE found.” “[B]efore an ALJ may rely on expert vocational evidence as
substantial evidence to support a determination of nondisability, the ALJ must ask the expert
how his or her testimony as to the requirements of identified jobs corresponds with the DOT and
elicit a reasonable explanation for any discrepancy on this point.” Urioste v. Colvin, No. 132855-MJW, 2014 WL 5465074, *5 (D. Colo. Oct. 28, 2014). During the May 5, 2016 hearing,
the ALJ asked the VE to “categorize [claimant’s] past work in terms of exertional and skill levels
and give me the DOT numbers?” AR 468. After providing the ALJ the DOT information related
to past relevant work, the VE provided the ALJ the DOT code numbers, exertional levels, and
specific vocational preparation numbers corresponding to jobs the VE determined Plaintiff could
perform given the hypothetical the ALJ posed. AR 469. Plaintiff’s attorney then questioned the
VE with regard to whether the DOT addressed certain aspects of Plaintiff’s claimed disability.
AR 470. In contrast to this record, Plaintiff cites no failure by the ALJ to comply with the
appropriate legal standards in questioning the vocational expert. Ultimately, the Court agrees
with Magistrate Judge Molzen’s analysis under similar facts and rejects Plaintiff’s contentions on
this point.
D. Substantial Evidence Supports the ALJ’s Finding that Jobs Plaintiff Could Have
Performed Existed in Significant Numbers in the National Economy
Plaintiff contends that “a total of 55,600 jobs available in the national economy does not
rise to the significant level as defined in 42 U.S.C. § 423(d)(2)(A).” Doc. 20 at 18. Plaintiff
argues that this number of jobs is “borderline” and therefore requires remand so that the Court
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can conduct the “more searching inquiry suggested by [Trimiar v. Sullivan, 966 F.2d 1326 (10th
Cir. 1992)] in doubtful cases.” Doc. 20 at 18.
The Court first notes that Plaintiff’s argument is premised on the Court adopting a factual
finding the ALJ did not actually make. Plaintiff argues that if the Court were to divide the
55,600 jobs available in the national economy the ALJ found Plaintiff could perform by the
number of states and territories of the United States, the number of jobs in the local economy
would be approximately 1049. Doc. 20 at 18. Plaintiff compares this number to the 850-1000
jobs in Urioste v. Astrue, which the Court found triggered a Trimiar analysis, in contending that
the number of jobs in the present case is “borderline.” 11-867, Doc. 23 at 19-20 (D.N.M. May
24, 2012). A finding of the number of regional jobs is not determined, however, by a simple
division of the number of jobs existing in the national economy with the number of states and
territories in the United States. It is instead premised on expert testimony a vocational expert
provides. Here, there is no such finding because the vocational expert testified to the number of
jobs existing in the national economy (see AR 469) and it is proper for the ALJ to solely consider
the national figure in his or her determination pursuant to 42 U.S.C. § 423(d)(2)(a). See
Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (concluding that “the proper focus
generally must be on jobs existing in the national, not regional, economy”).
This distinction is significant because the Trimiar decision focused on jobs available in
the regional economy. 966 F.2d at 1330. Accordingly, many of the Trimiar factors are
specifically directed toward the analysis of jobs available in the regional economy such as “the
distance that the claimant is capable of travelling to engage in the assigned work” and “the
isolated nature of the jobs.” Id. Such factors would appear to have little to no bearing on the
analysis of nationally available jobs. Indeed, Magistrate Judge Molzen recently addressed the

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issue of whether the Trimiar analysis extended to the review of jobs available in the national
economy. King, 2018 WL 851358 at *13. Judge Molzen stated that “‘[t]he multi-factorial
analysis required by Trimiar focuses on factors relevant in analyzing the true ‘availability’ of
local job opportunities on a more particularized inquiry as to the specific claimant under
consideration.” Id. Thus, “[w]here the focus is on national availability of jobs…the
particularized Trimiar inquiry would confuse the issues.” Id. Judge Molzen therefore concluded
that the “Trimiar analysis does not extend to the question of whether there are significant
numbers of nationally available jobs.” Id. (emphasis in original)); see also Padilla v. Berryhill,
Civ. No. 16-106-KK, 2017 WL 3412089, *12 (D.N.M. March 28, 2017). The Court agrees with
Magistrate Judge Molzen’s analysis on this point. Because the issue before the Court does not
involve a review of regionally available jobs, the Court rejects Plaintiff’s specific contention that
this case requires remand in order for the ALJ to conduct a Trimiar analysis.
The Court clarifies, however, that this does not mean that an ALJ’s findings regarding the
number of jobs existing in the national economy is beyond scrutiny. Rather, the issue remains as
to whether the ALJ’s finding is supported by substantial evidence. Such a determination may
overlap with considerations laid out in Trimiar, such as the “reliability of the vocational expert’s
testimony.” 966 F.2d at 1330. No such argument is before the Court, however. The Court rejects
Plaintiff’s attempt to manufacture a Trimiar analysis regarding jobs available in the local
economy by, with no legal support, simply dividing the number of jobs available in the national
economy by the number of states and territories within the United States.
Moreover, even assuming Plaintiff preserved an argument that substantial evidence does
not exist to support the ALJ’s conclusion that 55,600 jobs are significant in the national
economy, this argument would fail. Plaintiff did not challenge the vocational expert’s

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qualifications below or on appeal. Further, to the extent that Plaintiff challenges the vocational
expert’s reliability on appeal, the Court rejected that argument above. Whether the existence of
55,600 jobs in the national economy is significant is the province of the ALJ. When generally
addressing the process for determining whether a “significant number” of jobs exist (regardless
of whether considering jobs available locally or nationally) the Tenth Circuit in Trimiar made
clear that factual determinations such as whether the number of jobs is significant “should
ultimately be left to the [ALJ’s] common sense in weighing the statutory language as applied to a
particular situation.” 966 F.2d. at 1330 (quotation omitted). The ALJ determined that Plaintiff
could perform jobs that existed in significant numbers in the national economy (AR 431, 432)
and the Court does not now “presume to interpose [its] judgment for that of the ALJ.” Id. at
1332. The Court concludes that substantial evidence supports the ALJ’s determination on this
point.
IV.

Conclusion

For the foregoing reason, the Court DENIES Plaintiff’s Motion to Remand to Agency
(Doc. 20).

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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