United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Plaintiff's Motion to
Remand or Reverse (Docs. 21), filed August 9, 2016.
Pursuant to 28 U.S.C. § 636(b), this matter has been
referred to me for a recommended disposition. Doc.
16. Having reviewed the parties' submissions, the
relevant law, and the relevant portions of the Administrative
Record, the Court recommends that Plaintiff's Motion be
Plaintiff's second appeal. Plaintiff initially filed
applications with the Social Security Administration for
disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act on
December 4, 2009. AR at 153, 160. Plaintiff alleged
a disability onset date of May 29, 2009, due to bulging and
ruptured discs, disc degeneration, and depression.
AR at 196. These applications were denied initially
and upon reconsideration. AR at 76-79. Plaintiff
requested review and, after holding a de novo
hearing, Administrative Law Judge (“ALJ”)
Michelle K. Lindsay issued an unfavorable decision on January
23, 2012. AR at 18-28. Plaintiff requested that the
Appeals Council review ALJ Lindsay's decision on January
30, 2012. AR at 12. The Appeals Council denied
Plaintiff's request for review of ALJ Lindsay's
decision on July 5, 2013. AR at 1-3. As such, ALJ
Lindsay's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003).
appealed ALJ Lindsay's decision to this Court.
AR at 440-42. The Honorable William P. Lynch issued
a decision reversing ALJ Lindsay's decision on February
6, 2014. AR at 444-64. Thereafter, the Appeals
Council vacated ALJ Lindsay's decision on November 18,
2014. AR at 467-68. The Appeals Council noted that
Plaintiff filed subsequent claims for DIWC and SSID on July
24, 2013; accordingly, these claims were consolidated with
Plaintiff's pending claims. AR at 467.
August 5, 2015, ALJ Deborah L. Rose held a second de
novo hearing. AR at 374. After this hearing,
ALJ Rose issued an unfavorable decision on November 18, 2015.
AR at 345-65. The Appeals Council did not assume
jurisdiction over the case, and so ALJ Rose's decision
became the final decision of the Commissioner. 20 C.F.R.
§§ 404.984, 416.1484. This Court has jurisdiction
to review the decision pursuant to 42 U.S.C. § 405(g)
and 20 C.F.R. § 422.210(a).
claimant seeking disability benefits must establish that she
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); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505(a), 416.905(a). The Commissioner must
use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see Wall v. Astrue,
561 F.3d 1048, 1052 (10th Cir. 2009).
One of the process, the ALJ found that Plaintiff had not
engaged in substantial gainful activity during the relevant
time period. AR at 347. At Step Two, she determined
that Plaintiff had the severe impairment of
“degenerative disc disease of the lumbar spine.”
AR at 347-351. At Step Three, the ALJ concluded that
Plaintiff's impairments, individually and in combination,
did not meet or medically equal the regulatory
“listings.” AR at 351-354.
claimant does not meet a listed impairment, the ALJ must
determine the claimant's residual functional capacity
(“RFC”). 20 C.F.R. §§ 404.1520(e),
416.920(e). RFC is a multidimensional description of the
work-related abilities a plaintiff retains in spite of his
medical impairments. 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). In this case the ALJ determined that Plaintiff
retained the RFC to
Perform less than the full range of light, and sedentary work
as defined in 20 CFR 404.1567(b) and 416.967(b) and 20 CFR
404.1567(a) and 416.967(a) with limitations as follows. The
claimant is able to lift or carry up to ten pounds frequently
and up to twenty pounds occasionally. He is able to stand or
walk two hours per day, and sit for six hours daily. The
claimant is only occasionally able to climb ramps and stairs,
balance, stoop, kneel, crouch and crawl, and he is never able
to climb ladders, ropes or scaffolds. The claimant is able to
have no more than occasional exposure to extreme cold,
vibration, or hazards, such as dangerous moving machinery or
unprotected heights. He must use a cane for all his standing
and walking. The claimant would need to alternate between
sitting and standing as needed, about every ten to thirty
AR at 354. Employing this RFC at Steps Four and
Five, the ALJ determined that Plaintiff was unable to perform
his past relevant work. AR at 362. However, the ALJ
found that there were jobs that exist in significant numbers
in the national economy that Plaintiff can perform;
specifically, the ALJ determined that Plaintiff maintains the
RFC to work as a mail sorter, Dictionary of Occupational
Titles (“DOT”) No. 209.687.026, office helper,
DOT No. 239.567-010, or order clerk, DOT No. 209.567-014.
AR at 364. Accordingly, the ALJ determined that
Plaintiff was not disabled from his alleged onset date
through the date of her decision, and denied benefits.
AR at 365.
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. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012).
raises a series of errors, all related to the ALJ's
findings at Step Five.
The ALJ did not misstate the burden of proof.
first argument is that the ALJ misstated the burden of proof
at Step Five. In this regard, the ALJ stated:
At the last step of the sequential evaluation process (20 CFR
404.1520(g) and 416.920(g)), I must determine whether the
claimant is able to do any other work considering his
residual functional capacity, age, education, and work
experience. If the claimant is able to do other work, he is
not disabled. If the claimant is not able to do other work
and meets the duration requirement, he is disabled.
Although the claimant generally continues to have the
burden of proving disability at this step, a limited burden
of going forward with the evidence shifts to the Social
Security Administration. In order to support a finding
that an individual is not disabled at this step, the Social
Security Administration is responsible for providing evidence
that demonstrates that other work exists in significant
numbers in the national economy that the claimant can do,
given the residual functional capacity, age, education and
work experience (20 CRF 404.1512(g), 404.1506(c), 416.912(g)
AR at 347 (emphasis added). Plaintiff argues that
the italicized language is in error, because, he contends,
“the entire burden of proof shifts to the
Commissioner and that ‘the claimant has no
burden at step five.'” Doc. 22 at 9
Court recognizes that judges in this district have been
critical of this language in opinions in which they reversed
the denial of benefits. See Kuykendall v. Colvin,
CIV 13-0877 MV/WPL, Doc. 27 at 19 (D.N.M. Jan. 26,
2015); Martin v. Astrue, CIV 10-0053 ACT, Doc.
21 at 8 (D.N.M. Jan. 1, 2011); Rivera v.
Astrue, CIV 10-0305 WDS, Doc. 25 at 8 (D.N.M.
Dec. 29, 2010); Dominguez v. Astrue, CIV 09-1012
ACT, Doc. 25 at 9 (D.N.M. Sep. 29, 2010);
Thompson v. Astrue, CIV 09-0063, RB/ACT, Doc.
22 at 4 (D.N.M. Feb. 22, 2010). This criticism is based
on language in an unpublished Tenth Circuit opinion stating
that “[t]he claimant has no burden at step five.”
Stewart v. Shalala, 999 F.2d 548 at *1 (10th Cir.
1993) (unpublished table decision). However, none of these
cases reversed and remanded an ALJ's decision merely for
this statement, but for more substantial errors in the
process. And there is no Tenth Circuit case, published or
unpublished, that this Court is aware of reversing an ALJ on
this ground alone.
as the Commissioner points out, the ALJ's language is
based on the Administration's interpretation of the
sequential evaluation process as stated in 68 Fed. Reg.
51153-01. Doc. 25 at 12. In this document, titled
“Clarification of Rules Involving Residual Functional
Capacity Assessments; Clarification of Use of Vocational
Experts and Other Sources at Step 4 of the Sequential
Evaluation Process; Incorporation of ‘Special
Profile' Into Regulations, ” the Commissioner
Although you generally bear the burden of proving disability
throughout the sequential evaluation process, there is a
limited shift in the burden of proof to us “only if the
sequential evaluation process proceeds to the fifth
step.” Bowen v. Yuckert, [482 U.S. 137');">482 U.S. 137, 146
n.5 (1987)]. . . . When we decide that you are not disabled
at step 5, this means that we have determined that there is
other work you can do. To make this finding, we must provide
evidence that demonstrates that jobs exist in significant
numbers in the national economy that you can do, given your
RFC, age, education, and work experience. In legal terms,
this is a burden of production of evidence.
This burden shifts to us because, once you establish that you
are unable to do any past relevant work, it would be
unreasonable to require you to produce vocational evidence
showing that there are no jobs in the national economy that
you can perform, given your RFC. However, as stated by the
Supreme Court, “It is not unreasonable to require the
claimant, who is in a better position to provide information
about his own medical condition, to do so.” Bowen
v. Yuckert, id. Thus, the only burden shift
that occurs at step 5 is that we are required to prove that
there is other work that you can do, given your RFC, age,
education, and work experience. That shift does not place on
us the burden of proving RFC.
Thus, we have a burden of proof even though our primary
interest in the outcome of the claim is that it be decided
correctly. As required by the Act, the ultimate burden of