Mares v. Social Security Administration
Filing
24
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen denying 19 Plaintiff's Motion to Remand to Agency. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LAZARO MARES,
Plaintiff,
v.
CIV 18-0004 KBM
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse and Remand
for a Rehearing with Supporting Memorandum (Doc. 19) filed on June 6, 2018.
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties have consented to
me serving as the presiding judge and entering final judgment. See Docs. 6, 7, 8.
Having considered the record, submissions of counsel, and relevant law, the Court finds
Plaintiff’s motion is not well-taken and will be denied.
I.
Procedural History
On January 18, 2011, Mr. Lazaro Mares (“Plaintiff”) protectively filed an
application with the Social Security Administration for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act. Administrative Record 1 (AR) at 175,
252. Plaintiff alleged a disability onset date of October 13, 2010. AR at 252. Disability
Determination Services (“DDS”) determined that Plaintiff was not disabled both initially
1
Document 13 contains the sealed Administrative Record. See Doc. 13-1 to 13-16. The Court
cites the Administrative Record’s internal pagination, rather than the CM/ECF document number
and page.
(AR at 175-76) and on reconsideration (AR at 177-86). Plaintiff requested a hearing with
an Administrative Law Judge (“ALJ”) on the merits of his SSI application. AR at 200.
Both Plaintiff and a vocational expert (“VE”) testified during the de novo hearing.
See AR at 146-74. ALJ Ann Farris issued an unfavorable decision on September 13,
2013. AR at 122-31. Plaintiff submitted a request for review to the Appeals Council (AR
at 117), along with additional evidence (AR at 7). The Council denied review on March
31, 2015 (AR at 1-6) making the ALJ’s decision the final decision of the Commissioner
(Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003)).
On May 14, 2015, Plaintiff filed a Complaint in federal court. AR at 950-51. Judge
Vidmar granted Plaintiff’s Motion to Reverse and Remand for Rehearing with
Supporting Memorandum on July 25, 2016, finding that the ALJ failed to apply the
correct legal standards in evaluating the opinions of Plaintiff’s treating physician, Dr.
Zieser, and that the ALJ’s one reason for rejecting Dr. Zieser’s opinion was not
supported by substantial evidence. AR at 952-68.
Plaintiff filed a subsequent application for Title XVI SSI on May 7, 2015, again
alleging a disability onset date of October 13, 2010. AR at 980, 1128. DDS again
determined that Plaintiff was not disabled both initially (AR at 980-90) and on
reconsideration (AR at 991-1004). Plaintiff requested a hearing with an ALJ (AR at
1079-81). In light of Judge Vidmar’s Order of Remand on Plaintiff’s first application, the
Appeals Council ordered the ALJ to consolidate the claims on both applications and
issue a new decision, after a new hearing, on the consolidated claims. AR at 973-74.
ALJ Farris held a second de novo hearing on September 21, 2017 at which both
Plaintiff and a VE testified. AR at 897- 924. On November 2, 2017, ALJ Ann Farris
2
issued a partially favorable decision, finding Plaintiff disabled as of June 1, 2015. AR at
869-79. On this remanded case, Plaintiff did not file exceptions disagreeing with the
ALJ’s decision, and the Appeals Council did not assume jurisdiction within 60 days of
the date of the ALJ’s decision, making the ALJ’s decision the final decision of the
Commissioner. See 20 C.F.R. § 416.1484.
II.
The ALJ’s Findings and Applicable Law
A claimant seeking disability benefits must establish that he 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); see also 20 C.F.R. § 416.905(a). The Commissioner must use a fivestep sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The claimant has the burden at the first four steps of the process to show: (1) he
is not engaged in “substantial gainful activity”; (2) he has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) his impairment(s) meet or equal one of the
listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant’s residual functional capacity (“RFC”), he is unable to
perform his past relevant work. 20 C.F.R. § 416.920(a)(4)(i-iv); see also Grogan v.
Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a
multidimensional description of the work-related abilities [a claimant] retain[s] in spite of
his medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20
3
C.F.R. § 416.945(a)(1). If the claimant meets “the burden of establishing a prima facie
case of disability[,] . . . the burden of proof shifts to the Commissioner at step five to
show that the claimant retains sufficient . . . RFC to perform work in the national
economy, given his age, education, and work experience.” Grogan, 399 F.3d at 1261
(citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation
omitted)); see also 20 C.F.R. § 416.920(a)(4)(v).
At Step One of the process, ALJ Farris found that Plaintiff “has not engaged in
substantial gainful activity since the alleged onset date.” AR at 871 (citing 20 C.F.R.
§ 416.971). At Step Two, the ALJ concluded that “[s]ince the alleged onset date of
disability, October 13, 2010, [Plaintiff] has had the following severe impairments:
obesity, asthma, and degenerative disc disease with mild scoliosis.” AR at 871. The ALJ
further concluded that, “[b]eginning on the established onset date of disability, June 1,
2015, [Plaintiff] has had the follow severe impairments: obesity, asthma, degenerative
disc disease with cervical stenosis, and carpal-tunnel syndrome.” AR at 871 (citing 20
C.F.R. § 416.920 (c)). The ALJ found three of Plaintiff’s impairments, diabetes,
depressions, and GERD, to be non-severe. AR at 872.
At Step Three, the ALJ found that “since the alleged onset date of disability,
October 13, 2010, [Plaintiff] has not had an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20
[C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 872 (citing 20 C.F.R. §§ 416.920(d),
416.925, 416.926). In making her determination, ALJ Farris considered Listings 1.04
(disorders of the spine) and 3.03 (asthma). AR at 872. She also considered the effects
of obesity combined with other medically determinable impairments including
4
musculoskeletal, respiratory, and cardiovascular under Listings 1.00Q, 3.00L, and
4.00F. AR at 873.
In determining Plaintiff’s RFC, ALJ Farris found that while Plaintiff’s “medically
determinable impairments might be expected to cause the alleged symptoms[,] . . .
[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these
symptoms are not supported prior to June 1, 2015.” AR at 876. The ALJ considered the
evidence of record as well as statements by Plaintiff and his mother and the opinions of
Plaintiff’s treating and consultative physicians. AR at 873-76. Ultimately, the ALJ found
that, prior to June 1, 2015, Plaintiff had the residual functional capacity
to lift no more than 10 pounds at a time, sit for approximately six hours in
an eight-hour workday and stand or walk for no more than two hours in an
eight-hour workday. He could occasionally balance, stoop and climb stairs
but never kneel, crouch or crawl. He needed to avoid environmental
hazards such as unprotected heights and could have only moderate
exposure to pulmonary irritants. He could have occasional interaction with
the public. [The ALJ found] that this is a limited range of work contained in
the sedentary exertional levels as defined by 20 C.F.R. § 404.156, 20
C.F.R. § 416.967 and SSR 83-10.
AR at 873. ALJ Farris further found that, beginning on June 1, 2015, Plaintiff has the
residual functional capacity
to lift no more than 10 pounds at a time, sit for approximately six hours in
an eight-hour workday and stand/ walk for less than two hours in an eighthour workday. He can occasionally balance, stoop and climb stairs but
never kneel, crouch or crawl. He can occasionally handle and finger. He
should avoid environmental hazards such as unprotected heights and can
have only moderate exposure to pulmonary irritants. [Plaintiff] can have
occasional interaction with the public and requires the option to alternate
between sitting and standing at will. [The ALJ found] that this is a limited
range of work contained in the sedentary exertional level as defined by 20
C.F.R. § 404.156, 20 C.F.R. § 416.967 and SSR 83-10.
AR at 876.
5
At Step Four, ALJ Farris concluded that Plaintiff has been unable to perform any
past relevant work since his alleged disability onset date of October 13, 2010. AR at 877
(citing 20 C.F.R. § 416.965). At Step Five, the ALJ found that, prior to June 1, 2015,
Plaintiff was able to perform work as a table worker, document preparer, and addresser.
AR at 878. But, beginning on June 1, 2015, the ALJ found that “there are no jobs that
exist in significant numbers in the national economy that the claimant can perform.” AR
at 878 (citing 20 C.F.R. §§ 416.960(c), 416.966). The ALJ ultimately determined that
Plaintiff “was not disabled prior to June 1, 2015, but became disabled on that date and
has continued to be disabled through the date of this decision.” AR at 879 (citing 20
C.F.R. § 416.920(g)).
III.
Legal Standard for Review
The Court must “review the Commissioner’s decision to determine whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1161, 1166 (10th Cir. 2012) (citation omitted). “Substantial
evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172
(internal quotation omitted)). “It requires more than a scintilla, but less than a
preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)
(internal quotation omitted) (alteration in original)).
6
The Court will “consider whether the ALJ followed the specific rules of law that
must be followed in weighing particular types of evidence in disability cases, but [it] will
not reweigh the evidence or substitute [its] judgment for the Commissioner’s.” Id.
(quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).
“The possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The
Court “may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even
though the court would justifiably have made a different choice had the matter been
before it de novo.’” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).
IV.
Discussion
Plaintiff asserts two issues in his Motion. First, he argues that the ALJ “failed to
perform the requisite analysis under Trimiar for cases with [a] borderline number of
jobs.” Doc. 19 at 1. Second, he contends that the ALJ “failed to engage in a function-byfunction assessment of [Plaintiff’s] work-related abilities relating to (1) the seven
strength demands, (2) the limiting effects of [Plaintiff’s] obesity, and (3) [Plaintiff’s] nonexertional mental limitations, contrary to 20 C.F.R. § 416.1470(b) and SSR 96-8p.” Id.
A.
Substantial evidence supports the ALJ’s finding that jobs which
Plaintiff could have performed existed in significant numbers in the
national economy.
The Commissioner has the burden at Step Five to show that the plaintiff retains
an RFC to perform jobs that exist in significant numbers in the regional or national
economy. Haddock v. Apfel, 196 F.3d 1084, 1088-89 (10th Cir. 1999). In this case, at
the hearing before the ALJ, VE Weber testified that a person with the same age,
7
education, work history, and initial RFC as Plaintiff could perform the duties of a table
worker, document preparer, and addresser. AR at 921-22. She testified that, within the
national economy, there were 2,900 jobs as table worker, 47,000 jobs as document
preparer, and 6,000 jobs as addresser, for a total of 55,900 jobs. AR at 921-22. Relying
on this testimony, the ALJ found that these jobs existed in significant numbers in the
national economy. AR at 878. Plaintiff, however, argues that the total number of jobs is
so borderline to a significant number that the ALJ was required to conduct a Trimiar
analysis, which she did not do.
In Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992), the Tenth Circuit noted a
number of factors courts may consider in evaluating whether the number of regional
jobs is significant, “including: (1) the level of claimant’s disability; (2) the reliability of the
vocational expert’s testimony; (3) the distance claimant is capable of traveling to engage
in the assigned work; (4) the isolated nature of the jobs; and, (5) the types and
availability of such work.” Padilla v. Berryhill, No. 16-106 KK, 2017 WL 3412089, at *11
(D.N.M. Mar. 28, 2017) (citing Trimiar, 966 F.2d at 1330). However, I previously
concluded “that the Trimiar analysis does not extend to the question of whether there
are significant numbers of nationally available jobs that a claimant can perform.” King
v. Berryhill, No. CV 16-1147 KBM, 2018 WL 851358, at *14 (D.N.M. Feb. 12, 2018). 2
Indeed, the Trimiar factors “seem[] quite logical in the context of assessing truly
2
Plaintiff’s attorney, Michael Armstrong, also represented the plaintiff in King, yet he failed to
acknowledge my previous holding as it applies to his current argument. In fact, Plaintiff fails to
cite a number of other cases in which his attorney, Michael Armstrong, made the same
argument and was rejected by other judges in this District. See Garcia v. Berryhill, No. 16-cv1266 SCY, 2018 WL 1620922, at *4 (D.N.M. Mar. 31, 2018); Rodriguez v. Berryhill, No. 16-1059
SCY, 2018 WL 1627209 (D.N.M. Mar. 31, 2018).
8
‘available’ jobs regionally. Where the focus is on national availability of jobs, however,
the particularized Trimiar inquiry would confuse the issues.” Id. at *13.
True, Judge Browning of this District has remanded a case directing the ALJ to
consider the Trimiar factors for jobs with borderline numbers in the national economy.
See Sida v. Soc. Sec. Admin., 349 F. Supp. 3d 1149, 1164-65 (D.N.M. Oct. 29, 2018).
However, in Sida, Judge Browning found an error with one of the jobs identified at Step
Five. Id. at 1162-63. Accordingly, he looked at the remaining job under a harmless error
analysis, not substantial evidence, to determine if the ALJ’s Step Five determination
could still support a finding of no disability. Id. at 1163-64. Using the harmless error
analysis, Judge Browning could not say that “no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way,”
and remanded the case for the ALJ to consider the Trimiar factors. Id. at 1164-65
(quoting Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)). Judge Browning used
the same harmless error analysis to remand the case in Sears v. Berryhill, No. 17-cv0391 JB/KBM, 2018 WL 2002487, at *9 (D.N.M. April. 20, 2008). Yet in Sears, Judge
Browning agreed “that the Trimiar factors are best applied when regional jobs are at
issue.” Id. at *8.
In any event, here, the harmless error analysis does not apply because the Court
finds no reason to discount any of the three jobs identified by the VE. Rather, the Court
must determine if substantial evidence supports the ALJ’s determination that Plaintiff
“was capable of making a successful adjustment to other work that existed in significant
numbers in the national economy,” prior to June 1, 2015. AR at 878. It is proper for the
ALJ to look only at the number of jobs that exist in the national economy to determine
9
disability. See Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). The Tenth
Circuit has not drawn any bright-line rules on what constitutes a significant number, but
instead has held that “the issue of numerical significance entails many fact-specific
considerations requiring individualized evaluation, and, most importantly, that the
evaluation should ultimately be left to the ALJ’s common sense in weighing the statutory
language as applied to a particular claimant’s factual situation.” Allen, 357 F.3d at 1144
(quotations omitted).
The Ninth Circuit specifically found that “25,000 jobs meets the statutory
standard” as a nationally significant number if the jobs are available in several regions
of the country. Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014).
The Eighth Circuit expressly upheld an ALJ’s determination that 30,000 jobs constitute a
significant number in the national economy. Long v. Chater, 108 F.3d 185, 188 (8th Cir.
1997). The Tenth Circuit implicitly found 11,000 nationally available jobs to be a
significant number. See Rogers, 312 F. App’x 138, 142 (10th Cir. 2009); see also
Padilla, 2017 WL 3412089, at *12. And this Court has found 55,600 jobs, 47,500 jobs,
and 17,600 jobs to constitute a significant number in the national economy. See
Rodriguez, 2018 WL 1627209, at *5-6; King, 2018 WL 851358, at *12-14; Garcia, 2018
WL 1620922, at *5.
Here, relying on testimony from the VE, the ALJ determined that 55,900 is a
significant number in the national economy. AR at 878. “[T]he Court does not now
‘presume to interpose [its] judgment for that of the ALJ.’” Garcia, 2018 WL 1620922, at
*5 (citing Trimiar, 966 F.2d at 1332). The Court finds that substantial evidence supports
the ALJ’s determination on this point and will deny the Motion on this issue.
10
B.
Even if the ALJ failed to include certain function-by-function
assessments in the RFC, such errors are harmless, and the RFC is
supported by substantial evidence.
Plaintiff argues that the ALJ failed to engage in a proper function-by-function
assessment in three different areas when formulating the initial RFC. An “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, including the
functions in paragraphs (b), (c), and (d) of 20 C.F.R. [§§] 404.1545 and 416.945.”
Sedillo-Romero v. Colvin, No. 1:14-CV-00821-LF-SMV, 2016 WL 10257482, at *4
(D.N.M. May 12, 2016) (quoting SSR 96-8p, 1996 WL 374184 at *1 (July 2, 1996)).
“This means the ALJ must consider how the claimant’s impairments affect [his] physical
abilities, mental abilities, and other abilities.” Id. SSR 96-8p explains that, at Step Five of
the sequential evaluation process, while the
RFC must be expressed in terms of, or related to, the exertional categories
. . . , in order for an individual to do a full range of work at a given exertional
level, such as sedentary, the individual must be able to perform substantially
all of the exertional and nonexertional functions required at that level.
Therefore, it is necessary to assess the individual’s capacity to perform
each of these functions in order to decide which exertional level is
appropriate and whether the individual is capable of doing the full range of
work contemplated by the exertional level.
1996 WL 374184, at *3.
“However, the Tenth Circuit [has more] recently held that omission of the
formulaic analysis set forth in SSR 96-8p can be harmless provided that the ALJ’s
decision discusses and addresses any pertinent limitations and is otherwise supported
by substantial evidence.” Ryan v. Colvin, No. CV 15-0740 KBM, 2016 WL 8230660, at
*8 (D.N.M. Sept. 29, 2016) (discussing Hendron v. Colvin, 767 F.3d 951, 954-57 (10th
11
Cir. 2014) (“Where, as here, we can follow the adjudicator’s reasoning in conducting our
review, and can determine that correct legal standards have been applied, merely
technical omissions in the ALJ’s reasoning do not dictate reversal.”) (internal quotation
omitted)).
1. Seven Strength Demands
In the ALJ’s initial RFC determination, she found that prior to June 1, 2015,
Plaintiff could “sit for approximately six hours in an eight-hour workday and stand or
walk for no more than two hours in an eight-hour workday.” AR at 873. In her second
RFC determination, she further found that beginning on June 1, 2015, Plaintiff also
“requires the option to alternate between sitting and standing at will.” AR at 876. Plaintiff
argues that the ALJ failed to include a function-by-function analysis of Plaintiff’s need to
change positions in her initial RFC, and that if she had included that analysis, the “first
RFC would have demonstrated that [Plaintiff] was not capable of performing even
sedentary work.” Doc. 22 at 2.
When assessing physical abilities, the ALJ must consider the “seven strength
demands: Sitting, standing, walking, lifting, carrying, pushing and pulling.” SSR 96-8P,
1996 WL 374184 at *5; see also 20 C.F.R. § 416.945(b). “Each function must be
considered separately . . . , even if the final RFC assessment will combine activities
. . . .” SSR 96-8P, 1996 WL 374184 at *5. However, the Tenth Circuit in Hendron has
made clear that the ALJ does not have to include a formulaic analysis of each strength
demand “so long as it is apparent that the ALJ considered the applicable strength
demands.” Ryan, 2016 WL 8230660, at *8 (citing Hendron, 767 F.3d at 957).
12
In Hendron, the plaintiff argued that the ALJ’s omission of the function-byfunction assessment resulted in his omission of the plaintiff’s inability to sit for six hours
during an eight-hour workday when formulating the RFC. 767 F.3d at 956. Had the ALJ
engaged in the proper analysis, the plaintiff argued, he would have not found that she
retained the capacity to perform a full-range of sedentary work. Id. The Tenth Circuit
acknowledged the importance of a formal articulation of an applicant’s strength
demands in some cases. Id. (discussing SSR 96-8p, 1996 WL 374184 at *3). The court
concluded, however, that the omission was harmless in Ms. Hendron’s case because
the ALJ considered the medical evidence the plaintiff relied on and discounted it. Id. at
957. Accordingly, the Tenth Circuit held that “the ALJ did not overlook [the plaintiff's]
problems with sitting; [but, rather] he found that the evidence did not support any
limitation on her ability to sit . . . .” Id. The ALJ’s analysis in this case is analogous.
Here, the ALJ included in the second RFC that, beginning on June 1, 2015,
Plaintiff requires the option to alternate between sitting and standing at will. AR at 876.
This limitation is not included in the initial RFC. AR at 873. The ALJ explained that she
“adjusted the [RFC] assessment to include a sit/stand option” because “the record from
mid-June 2015 onward contains more objective evidence of spinal degeneration,
supporting retention of a sedentary exertional level . . . .” AR at 877. Comparatively,
when discussing the initial RFC, the ALJ found that “the varieties of radiological imaging
employed found nothing remarkable in either [Plaintiff’s] abdomen or his back.” AR at
876. Specifically, the ALJ noted that “2012 x-rays of the lumbar spine found mild
scoliosis and mild degeneration at T12-L1 but were generally unremarkable.” AR at 874
(citing AR at 519-29). Further, the ALJ reviewed an MRI from a year later that also
13
“found no evidence of significant disc bulge, protrusions or compression deformity.” AR
at 874 (citing AR at 616). In 2013, Dr. Zieser indicated that Plaintiff must periodically
alternate sitting and standing. AR at 623. However, the ALJ discounted this opinion for a
variety of reasons, including treatment history, internal inconsistency, and reliance on
subjective complaints. AR at 874-75.
As in Hendron, the Court here finds that “the ALJ did not overlook” any alleged
problems with Plaintiff’s need to alternate sitting and standing; rather, the ALJ “found
that the evidence did not support” that need prior to June 1, 2015. See Hendron, 767
F.3d at 957. While ALJ Farris did not include a formulaic analysis of sit/stand alternation
for the initial RFC, it is apparent she considered that strength demand, and her initial
RFC is supported by substantial evidence. See Ryan, 2016 WL 8230660, at *8.
Further, the only evidence Plaintiff presents to show that the initial RFC should
be more restrictive is Plaintiff’s testimony and his movement during the hearings.
Doc. 19 at 13-14. But the ALJ considered his testimony and discounted it. See AR at
873-74, 876. Plaintiff does not question the ALJ’s credibility determination. The lack of
medical evidence to support a more restrictive initial RFC “is fatal to [Plaintiff’s] claim.”
See Ryan, 2016 WL 8230660, at *9 (citing Wall, 561 F.3d at 1067-68; Rose v. Colvin,
634 F. App’x. 632, 637 (10th Cir. 2015)). The Court will deny Plaintiff’s Motion on this
issue.
2. Non-Exertional Mental Limitations
Plaintiff next asserts that the ALJ erred by not including a function-by-function
assessment of his non-exertional limitations. Doc. 20 at 19. An ALJ must consider all of
the following when assessing a claimant’s mental abilities:
14
When we assess your mental abilities, we first assess the nature and extent
of your mental limitations and restrictions and then determine your residual
functional capacity for work activity on a regular and continuing basis. A
limited ability to carry out certain mental abilities, such as limitations in
understanding, remembering, and carrying out instructions, and in
responding appropriately to supervision, co-workers, and work pressures in
a work setting, may reduce your ability to do past work and other work.
Sedillo-Romero, 2016 WL 10257482, at *4 (citing 20 C.F.R. §§ 404.1545(c), 416.945
(c)). “The Tenth Circuit has held that where a claimant is found to have more than mild
mental limitations in work-related functions, the ALJ must ‘express those impairments in
terms of work-related functions or [w]ork-related mental activities.’” Id. (quoting Jaramillo
v. Colvin, 576 F. App’x. 870, 876 (10th Cir. 2004)).
Plaintiff criticizes the ALJ for failing to conduct a function-by-function analysis of
the non-exertional limitations opined by Dr. Zieser and LPCC Schwope. Dr. Zieser filled
out a Medical Assessment in May 2013, opining that Plaintiff had moderate limitations in
maintaining attention and concentration for extended periods, performing activities
within a schedule, maintaining regular attendance and being punctual, sustaining an
ordinary routine without special supervision, and working in coordination with/or
proximity to others without being distracted by them. AR at 622. He also opined that
Plaintiff had marked limitations in making simple work-related decisions and completing
a normal workday and workweek without interruptions from pain or fatigue-based
symptoms. AR at 622. Similarly, LPCC Schwope opined that Plaintiff is moderately
limited in his ability to carry out very short and simple instructions or detailed
instructions, work in coordination with/or proximity to others without being distracted by
them, interact appropriately with the general public, accept instructions and respond
appropriately to criticism from supervisors, and maintain socially appropriate behavior
15
and adhere to basic standards of neatness and cleanliness. AR at 1392-93. LPCC
Schwope found Plaintiff to be markedly limited in his ability to maintain attention and
concentration for extended periods of time, perform activities within a schedule,
maintain regular attendance, and be punctual, make simple work-related decision, and
complete a normal workday and workweek without interruptions from psychologicalbased symptoms. AR at 1392.
The ALJ did not conduct a function-by-function analysis regarding most of these
restrictions. See AR at 873 (finding only that Plaintiff could have occasional interactions
with the public). However, “as in Hendron, the Court is able to follow the ALJ’s
reasoning in arriving at the mental restrictions in the RFC, even absent an explicit
function-by-function analysis.” Aguilar v. Berryhill, No. 15-CV-0896 SMV, 2017 WL
1380643, at *6 (D.N.M. Mar. 31, 2017). The ALJ gave little weight to both the opinions
of Dr. Zieser and LPCC Schwope. She concluded that Dr. Zieser’s medical source
statement was “bizarre,” explaining that “the pictures [Dr. Zieser] painted in his
treatment notes versus the medical statement were night and day, displaying profound
internal inconsistency.” AR at 874. She further noted that “[t]his extends into mental
health as well, where Zieser is no specialist and provided no treatment but checked
‘marked’ problems with making simple decisions without providing any underlying
rationale.” AR at 874. When determining Plaintiff’s severe impairments, ALJ Farris
further determined that “[b]ecause Swope [sic] failed to properly distinguish between
physical and mental effects and is inconsistent with statements from providers who see
[Plaintiff] more regularly, he receives little weight.” AR at 872.
16
Instead, ALJ Farris noted that, initially and upon reconsideration, state medical
consultants found Plaintiff has no severe mental impairments. AR at 873 (citing AR at
1375, 490, 500). It is clear to the Court that the ALJ considered Plaintiff’s mental
limitations and found no evidence to support more than a limitation in interactions with
the public. Again, as in Hendron, the Court finds that “the ALJ did not overlook” any
alleged mental limitations, but “found that the evidence did not support” limitations in
that area. See Hendron, 767 F.3d at 957. Accordingly, any omission of the function-byfunction analysis was harmless.
Further, Plaintiff does not specify the function-by-function assessment of which
mental limitations would have led to a more restrictive RFC. The lack of medical
evidence to support a more restrictive initial RFC “is fatal to [Plaintiff’s] claim.” See
Ryan, 2016 WL 8230660, at *9 (citing Wall, 561 F.3d at 1067-68; Rose, 634 F. App’x. at
637). The Court will deny Plaintiff’s Motion on this issue.
3. Obesity
Lastly, Plaintiff asserts that, despite the multiple assessments in the record that
his obesity contributed to his medical problems, the ALJ failed to include the functionally
limiting effects of obesity into the initial RFC. Doc. 19 at 15, 17. Obesity must be
considered in assessing a claimant’s RFC as it “can cause a limitation of function,” and
“[t]he combined effects of obesity with other impairments may be greater than might be
expected without obesity.” See SSR 02-1p, 2002 WL 34686281 at *6; id. at *7 (“When
we identify obesity as a medically determinable impairment . . . we will consider any
functional limitation resulting from the obesity in the RFC assessment[.]”); see also 20
C.F.R. § Pt. 404, Subpt. P, App. 1 (“[W]hen determining whether an individual with
17
obesity has a listing-level impairment or combination of impairments, and when
assessing a claim at other steps of the sequential evaluation process, including when
assessing an individual's residual functional capacity, adjudicators must consider any
additional and cumulative effects of obesity.”) “[T]he ALJ may ‘not make assumptions
about the severity or functional effects of obesity combined with other impairments' but
instead must ‘evaluate each case based on the information in the case record.'” Smith v.
Colvin, 625 F. App’x 896, 899 (10th Cir. 2015).
Plaintiff relies on DeWitt v. Astrue, 381 F. App’x 782, 784-86 (10th Cir. 2010). In
DeWitt, the ALJ mistakenly cited a doctor’s opinion in discounting the claimant’s obesity,
when that doctor never discussed the claimant’s obesity in the first place. Id. at 785. In
attempting to salvage the ALJ’s opinion, the Commissioner argued that the ALJ
considered the claimant’s obesity by restricting her to sedentary work with restrictions.
Id. But, as the Tenth Circuit recognized, “there [was] nothing in the decision indicating
how or whether [the claimant's] obesity influenced the ALJ in setting those restrictions.”
Id. The same is not true here.
Here, the ALJ found Plaintiff’s obesity to be a severe impairment at Step Two.
AR at 871. At Step Three, the ALJ “considered the effects of obesity in accordance with
[SSR] 02-1p,” reviewing Listings 1.00Q, 3.00L, and 4.00F, but “conclude[d] that the
combined effects of obesity with the other medically determinable impairments do not
meet or equal any of the listed requirements.” AR at 873. The ALJ then discussed
Plaintiff’s obesity in the initial RFC assessment, noting that Plaintiff testified to chronic
pain related to diabetes, obesity, and spinal degeneration. AR at 873. Plaintiff further
testified that he drives “only short distances lest pain in his back and sides become too
18
intense. He lives alone but alleged having a caregiver for the past 4-5 years who
spends approximately two hours a day assisting with household chores. Other than
swimming classes now completed, he participates in little physical activity.” AR at 87374.
The ALJ further discussed the opinions of multiple medical providers,
summarizing that
[o]utside of the unsupportable limitations proffered by Zieser, no source put
restrictions on [Plaintiff’s] activities. Just the opposite, in fact. Recognizing
obesity as, potentially, the fundamental problem, they consistently
encouraged more exercise, and [Plaintiff]
displayed a degree of
functionality while attending swimming classes. [Plaintiff] also reported
positive responses to several medications: Librax and Carafate for
abdominal discomfort and Norflex, a muscle relaxant, for his back.
AR at 876. Based on this analysis, the ALJ surmised that Plaintiff’s initial RFC could
include minimal restrictions. AR at 876. However, she also considered Plaintiff’s
subjective complaints of pain and limited his initial RFC to a restricted range of the
sedentary exertional level. AR at 876. This discussion counters Plaintiff’s claim that the
ALJ did not consider the effects of his obesity in formulating the initial RFC.
Further, Plaintiff points to nothing to indicate that his obesity limited his ability to
perform a restricted range of sedentary work. See e.g., Howard v. Barnhart, 379 F.3d
945, 948 (10th Cir. 2004) (“Claimant does not discuss or cite to medical evidence about
other areas which were impacted by her obesity.”); Arles v. Astrue, 438 F. App’x 735,
740 (10th Cir. 2011) (“Moreover, Mr. Arles does not discuss or cite to any evidence
showing that obesity further limited his ability to perform a restricted range of sedentary
work.”); Smith, 625 F. App’x at 899 (holding the ALJ is not required to discuss the
absence of evidence that obesity resulted in additional functional limitations).
19
Plaintiff does cite to Dr. Zieser’s opinion to argue that “the records contained
multiple assessments in which obesity was determined to be a contributing factor in [his]
medical problems.” Doc. 19 at 17. Indeed, in February 2013, Dr. Zieser opined that
Plaintiff’s obesity caused associated symptoms including abdominal pain. AR at 592.
But he also noted that Plaintiff’s abdominal pain was much improved with new
medications, Librax and Carafate. AR at 592. Plaintiff also points to Dr. Sawyer’s
conclusion that if Plaintiff lost weight he could control his diabetes and it would be easier
for him to be employed, helping to improve his depression. AR at 1726. Dr. Sawyer
further opined that Plaintiff could not sit or stand for very long, and lifting, pushing, and
pulling heavy objects “is almost impossible” for a man of his height and weight. AR at
1723. However, Dr. Sawyer still put Plaintiff on a walking-based exercise schedule. AR
at 1718. The ALJ properly considered both these opinions in formulating the initial RFC
that Plaintiff could only perform a restricted range of sedentary work. AR at 874-76.
Plaintiff’s Motion is denied on this issue.
V.
Conclusion
The Court finds that the ALJ did not need to conduct a Trimiar analysis and that
substantial evidence supports the ALJ’s finding that jobs Plaintiff could have performed
existed in significant numbers in the national economy. The Court further finds that
Plaintiff’s initial RFC is supported by substantial evidence, and any failure by the ALJ to
include function-by-function assessments is harmless.
Wherefore,
IT IS ORDERED that Plaintiff’s Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 19) is denied. The Court will enter a final order
20
pursuant to Rule 58 of the Federal Rules of Civil Procedure affirming the decision of the
Acting Commissioner and dismissing this action with prejudice.
________________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?