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Rivera v. Berryhill

United States District Court, D. New Mexico

March 16, 2017

NANCY A BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.


         THIS MATTER came before the Court on the Proposed Findings and Recommended Disposition (PF&RD) by Chief Magistrate Judge Karen B. Molzen (Doc. 29) filed on January 27, 2017. The Court has reviewed Plaintiff Leonard Rivera's Objections thereto (Doc. 32), filed on February 9, 2017, and Defendant's Response to Plaintiff's Objections to the Report and Recommendation of the Magistrate Judge (Doc. 33), filed on February 23, 2017. Having conducted a de novo review, this Court overrules Plaintiff's objections, will adopt the recommendation of the Chief Magistrate Judge and will deny Plaintiff's Motion to Remand or Reverse (Doc. 21).

         I. Standard of Review

         When resolving objections to a magistrate judge's proposal, “the district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C).

         The Tenth Circuit requires a “district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation, ” when conducting a de novo review of a party's timely, specific objections to the magistrate judge's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). A district court need not, however, “make any specific findings; the district court must merely conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).

         II. Background[2]

         Plaintiff's applications for Social Security benefits were denied at both the initial and reconsideration levels, and Plaintiff requested a hearing before an administrative law judge (“ALJ”). ALJ Michelle Lindsay conducted a hearing and determined that Plaintiff was not disabled. After the Appeals Council denied review, Plaintiff appealed ALJ Lindsay's decision to this Court. Plaintiff obtained a remand, and a second hearing was held before ALJ Deborah Rose.

         ALJ Rose again determined that Plaintiff is not disabled, finding that he maintains the residual functional capacity (“RFC”) to “[p]erform less than the full range of light, and sedentary work” with various restrictions, including that “[h]e must use a cane for all his standing and walking[, and] would need to alternate between sitting and standing as needed, about every ten to thirty minutes.” AR at 354. ALJ Rose employed this RFC at step five of the sequential evaluation process[3] to find that Plaintiff retains the ability to work as a mail sorter, office helper, or order clerk. AR at 364. Plaintiff appealed that decision to this Court.

         In her PF&RD, Chief Magistrate Judge Molzen recommends that this Court find that: ALJ Rose did not misstate the burden of proof at step five; the ALJ's hypothetical question to the Vocational Expert (“VE”) corresponds with Plaintiff's RFC, as required by case law; the VE's testimony was neither unacceptably vague nor confusing; the ALJ's decision was in accord with Haddock v. Apfel and SSR 00-4P; there is no conflict with the Dictionary of Occupational Titles (“DOT”); and, the VE and ALJ reasonably relied upon the DOT. Doc. 29 at 4-21. Plaintiff objects and asserts that the Chief Magistrate Judge incorrectly determined that ALJ Rose applied the correct burden of proof at step five and “Fail[ed] to Properly Analyze or Develop the Issue of Bilateral Handling and Fingering.” Doc. 32 at 1-5.

         III. Analysis

         A. The Burden of Proof at Step Five

         Plaintiff objects to the Magistrate Judge's conclusion that ALJ Rose correctly stated and applied the burden of proof at step five of the sequential evaluation process. “If the ALJ concludes that the claimant cannot perform any of his past work with his remaining RFC, the ALJ bears the burden at step five to show that there are jobs in the regional or national economies that the claimant can perform with the limitations the ALJ has found him to have.” Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). In legal terms, this is a burden of proof. See Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000). However, the ALJ is “not responsible for providing additional evidence about [a claimant's] residual functional capacity because [the agency] will use the same residual functional capacity assessment that [it] used to determine if [the claimant] can do [his] past relevant work[]” at step four. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); see also Jones v. Apfel, 202 F.3d 282 (10th Cir. 2000) (unpublished) (“If the evaluation of the claim proceeds to step five, the same RFC finding is considered along with other factors to determine whether the claimant can perform work other than his or her past relevant work.”) (citations omitted).

         When discussing step five, ALJ Rose stated that “[a]lthough 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.” AR at 347. In opposing this premise and the Magistrate Judge's conclusion that it is a correct statement of the law, Plaintiff argues that “[t]he Commissioner has the entire burden of proof at step five, not the ‘limited' one expressed in the prologue to the ALJ decision (AR 20). . . .” Doc. 32 at 1.

         While not intentionally so, Plaintiff's opening statement on this issue is telling. The cited page 20 of the administrative record is not from ALJ Rose's decision; it is from ALJ Lindsay's decision after Plaintiff's first administrative hearing. Compare AR at 20 with Id. at 347. Plaintiff's mistake is understandable; the language he complains about is substantively identical and present in the “Applicable Law” sections of both decisions. See Id. It appears that ALJs are uniformly employing this language, ostensibly at the direction of the Social Security Administration.

         Of course, simply because multiple ALJs are using this language does not make it correct. But, as the Magistrate Judge pointed out, the language has “an established legal basis” in 68 Fed. Reg. 51153-01. Doc. 29 at 5-6 (citing Jahn v. Astrue, CIV 10-0771 RHS, Doc. 28 at 10 (D.N.M. June 27, 2011). This document, entitled “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, ” explains that the Commissioner's burden at step five is “limited” because it is simply a shift in the burden of proof. See 68 Fed. Reg. 51153-01, 2003 WL 22001943. Whereas the claimant has the burden of providing evidence supporting his RFC throughout the sequential evaluation process, at step five, the Commissioner “must provide evidence that demonstrates that jobs exist in significant ...

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