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Brandenburg v. Berryhill

United States District Court, D. New Mexico

May 25, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations performing duties and functions not reserved to the Commissioner of Social Security, Defendant.


         This 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 proceedings.


         Ms. 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.

         Relying 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.


         Ms. 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.[1] 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 omitted).

         Ms. 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. § 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); 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. § 404.1520(a)(4).[2]

         At step 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.

         When a 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.

         At step 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.

         III. ...

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