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Rivera v. Colvin

United States District Court, D. New Mexico

January 27, 2017

LEONARD RIVERA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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 denied.

         I. Procedural History

         This is 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.[1] 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).

         Plaintiff 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.

         On 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).

         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).

         At Step 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.

         When a 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 minutes.

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.

         II. Legal Standard

         This 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).

         III. Analysis

         Plaintiff raises a series of errors, all related to the ALJ's findings at Step Five.

         A) The ALJ did not misstate the burden of proof.

         Plaintiff's 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) and 416.960(c)).

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 (citations omitted).

         The 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.

         Moreover, 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 states:

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 persuasion ...

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