Montoya v. Social Security Administration

Filing 26

ORDER by Magistrate Judge Steven C. Yarbrough granting 21 Motion to Remand to Agency. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC ELIJAH MONTOYA,
Plaintiff,
v.

Civ. No. 16-1089 SCY

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE OR REMAND
THIS MATTER is before the Court on Plaintiff Eric Elijah Montoya’s Motion to
Remand to Agency for Rehearing. Doc. 21. For the reasons discussed below, the Court will
GRANT Plaintiff’s motion and remand this action to the Commissioner for further proceedings
consistent with this opinion.
I.

Background

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 on
February 11, 2015. AR 10. Plaintiff alleged disability due to traumatic brain injury, depression,
anxiety, and sleep disorder. AR 53. Plaintiff alleged a disability onset date of July 1, 2013. AR
53. Plaintiff’s claims were initially denied on September 4, 2015, and upon reconsideration on
January 27, 2016. AR 10. On May 26, 2016, the Administrative Law Judge (ALJ) held a
hearing via videoconference. AR 10. The ALJ denied Plaintiff’s claims on July 11, 2016. The
Appeals Council subsequently denied Plaintiff’s request for review. Doc. 1. This appeal
followed.
Because the parties are familiar with record in this case, the Court will discuss Plaintiff’s
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medical history to the extent that it is relevant to the issues before the Court. Plaintiff was
examined by Dr. Patrick Silverthorne on August 14, 2015. AR 586. Dr. Silverthorne found that
Plaintiff “had difficulty with fine and gross manipulative skills in the right hand…[and] [s]light
decreased capacity to make fist” due to previous 3rd and 4th phalangeal fractures. AR 589.
Nevertheless, Dr. Silverthorne opined that Plaintiff “has no limitations on ability to…reach [and]
handle.” AR 590.
Subsequently, non-examining state agency physician Mark Werner, M.D. reviewed Dr.
Silverthorne’s records and found that Plaintiff is limited in handling (gross manipulation) and
fingering (fine manipulation) in his right hand. AR 64. Dr. Werner opined that Plaintiff should
be limited to frequent handling and fingering. AR 64.
In her decision, the ALJ gave “great weight” to Dr. Silverthorne’s opinions. AR 16.
While noting that Dr. Silverthorne indicated that Plaintiff had decreased capacity to make a fist
with his right hand, the ALJ found that Plaintiff had normal fine and gross manipulative skills.
AR 16. The ALJ did not address Dr. Werner’s opinion that Plaintiff is limited to frequent
handling and fingering. Ultimately, the ALJ found that Plaintiff “has the residual functional
capacity to perform a full range of work at all exertional levels” but with certain non-exertional
limitations. AR 14. The vocational expert testified that Plaintiff would be able to perform the
requirements of hospital cleaner or dishwasher. The ALJ found that these occupations existed in
significant numbers in the national economy and therefore found Plaintiff not disabled.
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

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medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Commissioner has adopted a five-step
sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R.
§ 404.1520. The steps of the analysis are as follows:
(1) Claimant must establish that she is not currently engaged in “substantial gainful
activity.” If claimant is so engaged, she is not disabled and the analysis stops.
(2) Claimant must establish that she has “a severe medically determinable physical or
mental impairment . . . or combination of impairments” that has lasted for at least one
year. If claimant is not so impaired, she is not disabled and the analysis stops.
(3) If claimant can establish that her impairment(s) are equivalent to a listed impairment that
has already been determined to preclude substantial gainful activity, claimant is
presumed disabled and the analysis stops.
(4) If, however, claimant’s impairment(s) are not equivalent to a listed impairment, claimant
must establish that the impairment(s) prevent her from doing her “past relevant work.”
Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023
(10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence
and determines what is “the most [claimant] can still do despite [her physical and
mental] limitations.” 20 C.F.R. § 404.1545(a)(1). This is called the claimant’s residual
functional capacity (“RFC”). Id. § 404.1545(a)(3). Second, the ALJ determines the
physical and mental demands of claimant’s past work. Third, the ALJ determines
whether, given claimant’s RFC, claimant is capable of meeting those demands. A
claimant who is capable of returning to past relevant work is not disabled and the
analysis stops.
(5) At this point, the burden shifts to the Commissioner to show that claimant is able to
“make an adjustment to other work.” If the Commissioner is unable to make that
showing, claimant is deemed disabled. If, however, the Commissioner is able to make
the required showing, the claimant is deemed not disabled.
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

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reaching the decision. 42 U.S.C. § 405(g); Casias v. Sec’y of Health & Human Serv., 933 F.2d
799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing court “neither
reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.’” Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For example, a court’s disagreement with a
decision is immaterial to the substantial evidence analysis. A decision is supported by substantial
evidence as long as it is supported by “relevant evidence . . . a reasonable mind might accept as
adequate to support [the] conclusion.” Casias, 933 F.3d at 800. While this requires more than a
mere scintilla of evidence, Casias, 933 F.3d at 800, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings from being supported by
substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v.
F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
Furthermore, even if a court agrees with a decision to deny benefits, if the ALJ’s reasons
for the decision are improper or are not articulated with sufficient particularity to allow for
judicial review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with
specific weighing of the evidence and “the record must demonstrate that the ALJ considered all
of the evidence.” Id. at 1009-10. This does not mean that an ALJ must discuss every piece of
evidence in the record. But, it does require that the ALJ identify the evidence supporting the
decision and discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at
1010.
III.

Analysis

Plaintiff raises a number of issues for review. Plaintiff first claims that there is not
substantial evidence to support the ALJ’s RFC finding because the ALJ failed to weigh the

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evidence properly, failed to provide a function-by-function assessment, and failed to consider all
of Plaintiff’s limitations. Second, Plaintiff claims that these errors tainted the vocational expert’s
testimony and that the ALJ failed to resolve conflicts between the vocational expert’s testimony
and the Dictionary of Occupational Titles. Because the Court agrees that the ALJ failed to
account for all of Plaintiff’s limitations, and that this error was not harmless, the Court concludes
that remand is appropriate.
The basis of Plaintiff’s contention on this point is that the ALJ failed to incorporate
limitations in the RFC reflecting impairments in handling and fingering. Plaintiff argues that
despite the ALJ giving Dr. Silverthorne’s opinion that Plaintiff had no functional limitations
“great weight,” she failed to resolve the inconsistency between this opinion and his finding that
Plaintiff had limitations in handling and fingering. Further compounding this discrepancy is the
ALJ’s failure to address Dr. Werner’s opinion that due to Plaintiff’s impairment in this area, he
should be limited to “frequent” handling and fingering, as opposed to constant.
Defendant does not dispute that the ALJ failed to resolve the discrepancy in Dr.
Silverthorne’s opinions or address Dr. Werner’s opinion regarding this limitation but instead
argues that the error is harmless. See Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir.
2005) (recognizing that a harmless error analysis is applicable if no reasonable administrative
factfinder, following the correct analysis, could have resolved the factual matter in any other
way). The basis of Defendant’s argument is that although Defendant acknowledges that a
finding that Plaintiff is limited to frequent handling and fingering would preclude a finding that
Plaintiff could perform the job of dishwasher, it would not preclude Plaintiff from performing
the job of hospital cleaner. Defendant contends that a significant number of these jobs exist in

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the national economy and, therefore, a finding of non-disability is still warranted. For the
reasons explained below, the Court rejects this argument.
Defendant’s argument is contingent on the Court finding that the 78,000 hospital cleaner
jobs in the national economy constitutes a “significant” number. As the Tenth Circuit has
warned, however, “judicial line-drawing in this context is inappropriate.” Chavez v. Barnhart,
126 Fed App’x 434, 436 (10th Cir. 2005). This is because “the question of whether the numbers
of jobs available is significant is fact-specific and requires evaluation on an individual basis” and
should therefore “be left to the ALJ’s common sense in weighing the statutory language as
applied to a particular claimant’s factual situation.” Id. (citing Trimier v. Sullivan, 966 F.2d
1326 (10th Cir. 1992); Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004). In some cases,
however, the Court may determine as a matter of law that a certain number of jobs are
“significant.” See Allen, 357 F.3d at 1144 (stating that it is inappropriate for a court to make
such a finding unless it can hold as a matter of law that significant jobs exist in the national
economy).
Defendant does not cite any cases regarding the number of jobs that must exist in the
national economy in order for the Court to determine as a matter of law that 78,000 is sufficient.
In Raymond v. Astrue, the Tenth Circuit concluded that 1.34 million jobs constitutes a significant
number as a matter of law. 621 F.3d 1269, 1274 (10th Cir. 2009). Further, a review of
unpublished cases in the Tenth Circuit indicates that 152,000 jobs in the national economy is
likewise sufficient to permit a court to determine significance as a matter of law. Ferguson v.
Berryhill, No. 16-1348, 2017 WL 2536436 (D. Kan. June 6, 2017) (providing review of case law
on this point and concluding that 152,000 jobs is the lowest number of jobs found to be
significant as a matter of law); Ladenburger v. Colvin, No. 15-02182, 2017 WL 1352274, *4 (D.

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Colo. April 13, 2017) (citing Stokes v. Astrue, 274 Fed. App’x 675 (10th Cir. 2008)). Courts are
not in agreement, however, with regard to how many jobs below 152,000 are sufficient to
constitute a significant number. Courts in the Tenth Circuit have declined to find harmless error
when jobs exist in the national economy that number 49,957, 55,000, 39,000, 18,000, and
30,000. Ferguson v. Berryhill, No. 16-1348, 2017 WL 2536436 *6 (citing cases). Other courts
have interpreted a recent unpublished Tenth Circuit case as impliedly finding that significance
can be reached when jobs in the national economy number more than 11,000. King v. Berryhill,
No. 16-1147 KBM, 2018 WL 851358, *12-13 (D. N.M. February 12, 2018) (interpreting Rogers
v. Astrue, 312 Fed. App’x. 138 (10th Cir. 2009); Padilla v. Berryhill, No. 16-106, 2017 WL
3412089, *12 (D. N.M. March 28, 2017) (same).
While unpublished, the Tenth Circuit case most similar to the present case is Chavez v.
Barnhart, 126 Fed App’x 434, 436 (10th Cir. 2005). There, the ALJ found three types of jobs
the claimant could perform. Id. at 436. On appeal, however, the Commissioner conceded that
only one of those jobs, numbering 49,957 nationally, was suitable for the claimant. Id. The
Tenth Circuit remanded the case “because the ALJ did not have an opportunity to evaluate
whether [this job], standing alone, existed in significant numbers under [42 U.S.C. §
423(d)(2)(A)].” Id.
Chavez stands in contrast to King and Padilla due to the procedural posture of the case.
Unlike King and Padilla where the courts were reviewing the ALJs’ factual determinations, the
issue in Chavez and the present case is whether it is permissible, pursuant to a court’s harmless
error analysis, to determine significance as a matter of law. That is, instead of conducting a
substantial evidence review, a court performing a harmless error analysis would essentially be
making a factual determination as to whether sufficient jobs exist in the national economy. The

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Tenth Circuit has 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.” Trimiar, 966 F.2d at 1330 (quotation omitted). In
Chavez, the Tenth Circuit declined the Commissioner’s invitation to find that approximately
50,000 jobs nationally is significant as a matter of law. 126 Fed. App’x at 436-37. Consistent
with Chavez, and given the high bar the Tenth Circuit has set for a court to determine
significance as a matter of law, the Court declines to conclude as a matter of law that 78,000 jobs
in the national economy constitutes a significant number. As such, the Court finds that the ALJ’s
error in this case was not harmless.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion to Remand to
Agency (Doc. 21). The Court therefore reverses the Commissioner’s decision finding
Plaintiff not disabled and remands this action to the Commissioner to conduct further
proceedings consistent with this Opinion.

___________________________________
UNITED STATES MAGISTRATE JUDGE
Sitting by Consent

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