Turrubiartez v. Colvin
MEMORANDUM DECISION AND ORDER - Based upon the foregoing, with respect to the ALJs credibility determination and consideration of Plaintiffs mental impairments for purposes of the RFC assessment the Court AFFIRMS the ALJs decision f inding that those portions of the decision are supported by substantial evidence and the correct legal standards were applied. With respect to the ALJs determination that a significant number of jobs exist in the national economy, this Court REMANDS the ALJs decision for further consideration under the Trimiar criteria. The Clerk of the Court is directed to enter judgment and close this case. Signed by Magistrate Judge Brooke C. Wells on 3/20/2017. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CHRISTIE L. TURRUBIARTEZ,
MEMORANDUM DECISION AND
ORDER AFFIRMING IN PART AND
REMANDING IN PART THE DECISION
OF THE COMMISSIONER
CAROLYN W. COLVIN,
Case No. 2:16cv105-BCW
Magistrate Judge Brooke Wells
Plaintiff Christie L. Turrubiartez (“Plaintiff’) seeks judicial review of the decision of the
Commissioner of Social Security denying Plaintiff’s application for Disability Insurance Benefits
under Title II of the Social Security Act. 1 After careful consideration of the record and the briefs
filed by counsel, the Court has determined that oral argument is unnecessary and decides this
case based upon the record before it. 2 For the reasons set forth below, the Court affirms-in-part
and remands-in-part the decision of the Administrative Law Judge (“ALJ”). 3
In July 2012, Plaintiff filed her Social Security application alleging a disability onset date
of July 20, 2012. Her application was denied and a hearing was held before the ALJ on May 13,
42 U.S.C. § 405(g).
See Scheduling Order, Docket no. 18 (noting that “[O]ral argument will not be heard unless requested at the time
of filing first brief by either party and upon good cause shown.”).
Because the Appeals Council denied review, the ALJ’s decision is the Commissioner’s final decision for purposes
of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
The parties fully set forth the background of this case, including the medical history, in their memoranda. The
court does not repeat this background in full detail.
2014. The ALJ rendered an unfavorable decision finding Plaintiff not disabled within the
meaning of the Act. 5 Plaintiff requested review by the Appeals Counsel and her request was
denied on December 28, 2015, making the ALJ’s decision final for purposes of review. 6
The ALJ determined that Plaintiff has severe physical impairments of pain disorder with
psychological and general medical condition factors, diabetes mellitus, degenerative disc disease
of the lumbar spine, and degenerative joint disease of both knees with osteoarthritis. 7 With
regard to claimed mental impairments the ALJ found that Plaintiff has mild restriction in her
activities of daily living, moderate difficulties in social functioning, moderate difficulties with
regard to concentration, persistence or pace, and no episodes of decompensation. 8 The ALJ
determined that Plaintiff did not meet or equal a listing and that Plaintiff had the RFC to perform
a range of sedentary, unskilled work with additional limitations. 9 Plaintiff’s RFC and ailments
precluded her from performing any past relevant work. 10 Finally, the ALJ concluded that
Plaintiff could perform sedentary unskilled work of a media cutter and paster, office label
addresser, and final assembler—all of which have jobs in the national economy. 11 Thus, the ALJ
found Plaintiff non-disabled.
See Tr. 31. “Tr.” Refers to the official transcript of the record before the Court.
20 C.F.R. § 404.981.
See Tr. 23.
See Tr. 24-25.
STANDARD OF REVIEW
The Court reviews “the ALJ's decision only to determine whether the correct legal
standards were applied and whether the factual findings are supported by substantial evidence in
the record.” 12 “Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” 13 “It requires more than a scintilla, but less than a
Additionally, the ALJ is required to consider all of the evidence; however, the ALJ is not
required to discuss all the evidence. 15 In reviewing the ALJ’s decision the Court evaluates the
record as a whole, including that evidence before the ALJ that detracts from the weight of the
ALJ’s decision. 16 The Court, however, may neither “reweigh the evidence [n]or substitute [its]
judgment for the [ALJ’s].” 17 Where the evidence as a whole can support either the agency’s
decision or an award of benefits, the agency’s decision must be affirmed. 18 Further, 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.’” 19
Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006).
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted).
Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2000).
Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).
Lax, 489 F.3d at 1084 (citation omitted).
See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).
In this appeal Plaintiff argues the ALJ erred in: (1) failing to discuss and incorporate his
findings of moderate mental impairments at steps 2 and 3 into his RFC finding; (2) that his
credibility finding is not supported with substantial evidence; and (3) finding a significant
numbers of jobs exist which Plaintiff can perform.
First, Plaintiff contends that the ALJ erred in failing to discuss and incorporate his
findings of moderate mental impairments at steps 2 and 3 into his RFC finding. The Tenth
Circuit has found that a “finding of moderate limitations at step three ‘does not necessarily
translate to a work related functional limitation for the purposes of RFC assessment.’” 20 Further,
the Tenth Circuit has found that an ALJ properly accounts for a claimant’s moderate limitations
in concentration, persistence and pace in the RFC assessment by limiting [her] to unskilled
Here, ALJ narrowly tailored the RFC assessment with additional limitations, and a
number of those limitations accounted for Plaintiff’s limitations in social functioning and
concentration, persistence and pace.22 In doing so, the ALJ specified in the hypothetical to the
Vocation Expert (“VE”) that Plaintiff could perform unskilled work, and only work in a low
stress environment, a low production level job, cannot work with the general public, only have
occasional contact with supervisors and coworkers, only occasional changes in a routine work
Patterson v. Colvin, 662 Fed.Appx. 634, 638 (10th Cir. 2016) (citing Vigil v. Colvin, 805 F.3d 1199, 1203 (10th
Vigil, 805 F.3d at 1203.
setting, work at a low concentration level, and work at a low memory level. 23 These
specifications took into account Plaintiff’s claimed mental limitations. Accordingly, the Court
finds the ALJ’s RFC assessment was supported by substantial evidence and properly
incorporated limitations to address Plaintiff’s moderate mental impairments identified at steps 2
and 3 of the ALJ’s analysis.
Plaintiff also argues that the ALJ failed to adequately consider her pain in making his
RFC determination and insufficiently described Plaintiff’s need for a sit/stand option in his
hypothetical to the VE. Contrary to Plaintiff’s argument, the ALJ did consider Plaintiff’s need
for a sit/stand option and specified in the RFC form (which is referenced and relied upon in the
ALJ’s decision24) that Plaintiff was limited to standing or walking up to 10-20 minutes at a time
and sitting up to 45-60 minutes at a time. 25 The ALJ noted that RFC #1 (in the RFC form) was
the correct RFC for purposes of his decision. 26 Accordingly, the ALJ’s decision adequately
described and considered Plaintiff’s need for a sit/stand option, was supported by substantial
evidence, and will not be disturbed by this Court.
Next, Plaintiff contends that the ALJ erred in determining Plaintiff’s testimony wasn’t
fully credible. An ALJ must evaluate whether the claimant’s descriptions of pain or other
symptoms are credible. 27 This is a two-step process. The claimant must first demonstrate a
medically determinable impairment that could “reasonably be expected” to produce the alleged
See 20 C.F.R. § 404.1529(c).
symptoms. 28 Once the claimant demonstrates such an impairment, the ALJ may consider the
credibility of the claimant’s descriptions of symptoms and limitations in light of the entire case
record. 29 The ALJ may consider factors such as the claimant’s daily activities, treatment history,
and the objective medical evidence. 30 Credibility determinations are the province of the ALJ and
should not be disturbed if supported by substantial evidence. 31
Here, the ALJ determined that Plaintiff’s claimed symptoms and limitations were not
fully credible because Plaintiff’s testimony was not reasonably consistent with the medical
record and all other evidence. 32 Plaintiff told Dr. Swaner during her examination that she cares
for her 4 children (3 under the age of 18), she does 50% of the housework, 60% of the laundry,
and 75% of the cooking. 33 The ALJ also took note that Dr. Swaner stated that Plaintiff had
described herself as being independent in her basic self-help skill areas and in completing her
activities of daily living. 34 The ALJ noted Plaintiff’s ability to travel and cited to her trip to San
Diego for six days in March 2013. 35 The ALJ also found that Plaintiff has not always been
compliant with the prescribed treatment for her diabetes. 36 Her doctors have noted that that
although she does have chronic pain, it is under control with pain management. The state agency
SSR 96-7p, 1996 WL 374186, at *2.
Id. at *3.
See McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002); Diaz v. Secretary of Health & Human Servs.,
898 F.2d 774, 777 (10th Cir. 1990).
consultants opined that Plaintiff can perform a full range of light work, 37 but the ALJ restricted it
to unskilled sedentary work and provided additional limitations, giving Plaintiff the benefit of the
doubt. The Court finds the ALJ’s credibility determinations are closely and affirmatively linked
to substantial evidence in the record. Therefore, the Court declines Plaintiff’s invitation to
reweigh the evidence and finds that the ALJ set forth specific reasons for not giving full credit to
Finally, Plaintiff contends the ALJ erred by finding a significant number of jobs exist in
the national economy which Plaintiff can perform. The Tenth Circuit has refused to draw a
bright line in establishing the number of jobs that would constitute a “significant number.” 38
However, the Tenth Circuit has acknowledged that “the number appears to be somewhere
between 100 [local jobs], the number of jobs in Allen[ 39] that we refused to consider significant
for harmless-error purposes, and 152,000 [national jobs], the lowest number of jobs we have
considered (in Stokes[ 40]) to be sufficient so far for application of harmless error. 41
Here, the ALJ found that the three jobs identified by the VE totaled 9,150 jobs in the
national economy and concluded that equated to a “significant number” of jobs. This number is
6% of the lowest number (152,000 national jobs in Stokes) the Tenth Circuit has recognized for
application of harmless error. In this case, where the total number of jobs identified appears to
be significantly low for the number of national jobs, the ALJ had a responsibility to look at the
Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992).
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.2004).
Stokes v. Astrue, 274 Fed.Appx. 675, 684 (10th Cir.2008).
Evans v. Colvin, 640 Fed.Appx. 731, 736 (10th Cir. 2016).
case-specific considerations outlined in Trimiar. 42 In Trimiar, the Tenth Circuit (adopting the 8th
Circuit criteria) instructed that an ALJ “should consider many criteria in determining whether
work exists in significant numbers, so of which might include: the level of the claimant’s
disability; the reliability of the vocation expert’s testimony; the distance claim is capable of
traveling to engage in assigned work; the isolated nature of the jobs; the types and availability of
such work, and so on.” 43 The record is absent with regard to whether the ALJ considered the
Trimiar criteria in reaching his conclusion. Accordingly, this Court remands this matter for the
ALJ to specifically consider the Trimiar criteria, and based on the foregoing, determine whether
there are significant jobs in the national economy for Plaintiff to perform.
Based upon the foregoing, with respect to the ALJ’s credibility determination and
consideration of Plaintiff’s mental impairments for purposes of the RFC assessment the Court
AFFIRMS the ALJ’s decision finding that those portions of the decision are supported by
substantial evidence and the correct legal standards were applied. With respect to the ALJ’s
determination that a significant number of jobs exist in the national economy, this Court
REMANDS the ALJ’s decision for further consideration under the Trimiar criteria. The Clerk of
the Court is directed to enter judgment and close this case.
DATED this 20 March 2017.
Brooke C. Wells
United States Magistrate Judge
Allen, 357 F.3d at 1144 (10th Cir. 2004).
Trimiar, 966 F.2d at 1330 (10th Cir. 1992) (citing Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988)).
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