United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
matter comes before the Court on Plaintiff Yvonne
Brandenburg's Motion to Reverse Commissioner's
Administrative Decision and Remand Claim (Doc. 22)
and Memorandum in Support of Plaintiff's Motion to Remand
(Doc. 23), filed September 15, 2017. Pursuant to 28
U.S.C. § 636(b), this matter has been referred to me for
a recommended disposition. Doc. 21. Having reviewed
the parties' submissions, the relevant law, and the
relevant portions of the Administrative Record, the Court
recommends that Plaintiff's Motion be granted and that
this matter be remanded for further administrative
Brandenburg's claim for disability insurance benefits was
denied by the Commissioner at every level of review. In the
final denial, the Administrative Law Judge
(“ALJ”) assigned to her case determined that Ms.
Brandenburg can still perform work which exists in
“significant numbers” in the national economy.
This factual finding is at the heart of this appeal.
on the testimony of a Vocational Expert, the ALJ found that
there are a total of 5, 200 jobs in the national economy that
Ms. Brandenburg retains the residual functional capacity to
perform. However, the ALJ's analysis ended with this
conclusion. Absent from the ALJ's analysis was any
discussion of whether this number of jobs is actually
“significant” in Ms. Brandenburg's case.
However, such a discussion was required by binding Tenth
Circuit precedent in a case involving such a low number of
jobs in the national economy. As such, the Court recommends
that Plaintiff's Motion be granted, and that this matter
be remanded for further analysis by the ALJ.
Brandenburg filed an application with the Social Security
Administration for disability insurance benefits under Title
II of the Social Security Act on March 8, 2013. AR
at 192-195. She alleged a disability onset date of
June 1, 2011, due to Lymphoma cancer stage 2, cirrhosis of
the liver, and diabetes. AR at 70, 192. However, her
date last insured was June 30, 2011, AR at 73,
“thus she had the burden of proving that she was
totally disabled on that date or before.” Wilson v.
Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citation
Brandenburg's application was denied initially and upon
reconsideration. AR at 69-88. She requested review,
and, after holding a de novo hearing, ALJ Eric Weiss
issued an unfavorable decision on January 6, 2016.
AR at 16-32. Ms. Brandenburg requested that the
Appeals Council review the ALJ's decision on March 4,
2016. AR at 14-15. The Appeals Council denied her
request on March 20, 2017. AR at 1-3. As such, the
ALJ's decision became the final decision of the
Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003). This Court has jurisdiction to review the
decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R.
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); 20 C.F.R. § 404.1505(a). The Commissioner
must use a five-step sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §
one of the process, the ALJ found that Ms. Brandenburg had
not engaged in substantial gainful activity from her alleged
onset date through her date last insured. AR at 21.
At step two, he determined that Ms. Brandenburg had
established the severe impairments of “status-post left
foot fracture and obesity.” AR at 21. In so
finding, the ALJ rejected Ms. Brandenburg's lymphoma
cancer and cirrhosis of the liver, among other things, as
non-medically determinable impairments on the date last
insured because they had not been diagnosed by an acceptable
medical source until after that date. AR at 21-23.
The ALJ also found, through the date last insured, Ms.
Brandenburg “did not have an impairment or combination
of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” AR at 23.
claimant does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). “RFC
is not the least an individual can do despite his or
her limitations or restrictions, but the
most.” SSR 96-8p, 1996 WL 374184, at *1;
see 20 C.F.R. § 404.1545(a)(1). In this case,
the ALJ determined that, through her date last insured, Ms.
Brandenburg retained the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a),
except that she could lift or carry 20 pounds occasionally
and 10 pounds frequently; could occasionally push or pull the
same weight, including the operation of foot controls with
her left lower extremity; could walk and stand for two hours
during an 8-hour workday; could sit for six hours during an
8-hour workday; could occasionally climb ramps and stairs,
but never ladders, ropes or scaffolds; could occasionally
balance, stoop, crouch, kneel, and crawl; and had to avoid
more than occasional exposure to extreme cold and moving
machinery and all exposure to unprotected heights.
AR at 23. Employing this RFC at step four, the ALJ
determined that Ms. Brandenburg could not have returned to
her past relevant work as a tamale worker prior to her date
last insured. AR at 25. Ms. Brandenburg does not
challenge these findings on appeal.
five, the ALJ found that, “[t]hrough the date last
insured, considering the claimant's age, education, work
experience, and residual functional capacity, there were jobs
that existed in significant numbers in the national economy
that claimant could have performed.” AR at 26.
Specifically, relying on the testimony of the vocational
expert, he found that Ms. Brandenburg was capable of working
as an order clerk, table worker, and charge account clerk
prior to her date last insured. AR at 26. Ms.
Brandenburg does not take exception to the ALJ's step
five findings in general. In other words, she does not
challenge the ALJ's finding that these jobs are within
her RFC. However, she posits that the number of jobs, which
the vocational expert testified total 5, 200 positions in the
national economy, is insufficient to meet the
Commissioner's burden at step five because 5, 200 is not
a “significant number” of jobs under the Act.
See Doc. 23 at 4. The Commissioner counters that
this Court should defer to the ALJ's finding that 5, 200
jobs constitute a significant number of jobs existing in the
national economy in the specific context of this case.
Doc. 25 at 3.