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Crockett v. Berryhill

United States District Court, D. New Mexico

November 29, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Jerry H. Ritter, U.S. Magistrate Judge.

         This matter comes before the Court on Plaintiff Clay Shannon Crockett's Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing, with Supporting Memorandum, [Doc. 20], filed March 28, 2018. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to the undersigned to conduct dispositive proceedings in this matter, including the entry of final judgment. [Docs. 4, 10, 11]. Having studied the parties' positions, the relevant law, and the relevant portions of the Administrative Record (“AR”), [1] the Court grants Mr. Crockett's Motion and remands this case for further administrative fact finding, for the reasons set forth below.


         To be considered disabled under the Social Security Act, a claimant seeking supplemental security income benefits must demonstrate that he is unable to return to his past work. See 42 U.S.C. § 1382c(a)(3)(B). If he does so, the burden shifts to the Administration to prove that he can still perform work that exists in “significant numbers” in the national economy. See Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009). To meet this burden, the Administration must prove the existence of jobs that the claimant can do despite his impairments and establish that those jobs exist in “significant numbers.” See Chavez v. Barnhart, 126 Fed.Appx. 434, 436 (10th Cir. 2005) (unpublished). Failure to prove both renders the Administration's denial of benefits unsupported by substantial evidence.

         The Tenth Circuit “has never drawn a bright line establishing the number of jobs necessary to constitute a ‘significant number[.]'” Trimiar v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992). Instead, the Trimiar court set forth “several factors [that] go into the proper evaluation of significant numbers.” Id. In the absence of a discussion of these factors, the Court should not supply the missing factual finding - that the number of jobs identified by the administration is “significant” in a particular case. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). That said, the Tenth Circuit has applied the principle of harmless error to affirm the failure of the Administration to assess the Trimiar factors in cases involving as few as 152, 000 jobs. See Evans v. Colvin, 640 Fed.Appx. 731, 736 (10th Cir. 2016) (unpublished). Unfortunately for the Administration, the number of jobs it identified by the Administrative Law Judge in this case (6, 400) is significantly lower than 152, 000.

         This is not the first time this Court has been faced with a “relatively small” number of jobs. See Brandenburg v. Berryhill, CV 17-0507 JB/JHR, Doc. 27 (D.N.M. May 25, 2018), report and recommendation adopted, 2018 WL 3062591 (D.N.M. June 21, 2018) (5, 200 jobs). As such, the Court finds itself bound by the principles of both horizontal and vertical stare decisis, insofar as it must follow the Tenth Circuit's legal holdings and its own application of those holdings in Brandenburg. See Black's Law Dictionary, 710 (Fourth Pocket Ed. 2011). “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Janus v. Am. Fed'n of State, County, & Mun. Employees, Council 31, 138 S.Ct. 2448, 2478 (2018) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991). Accordingly, for the reasons stated in Brandenburg, reiterated and applied to this case below, the Court will grant Mr. Crockett's Motion to remand his case to the Administration for further review.


         Mr. Crockett filed an application with the Social Security Administration for supplemental security income benefits under Title XVI of the Social Security Act on November 19, 2013. AR at 193-196. As grounds, Mr. Crockett alleged “back problems, disc rupture, PTSD, ADHD [and] reading problems.” AR at 211. Mr. Crockett alleged that his conditions became severe enough to keep him from working on January 1, 2013. AR at 211. The Administration denied Mr. Crockett's claim initially and upon reconsideration, and he requested a de novo hearing before an administrative law judge (“ALJ”). AR at 74-118.

         ALJ Raul Pardo held an evidentiary hearing on August 11, 2016. AR at 39-73. On October 7, 2016, the ALJ issued an unfavorable decision, finding that Mr. Crockett has not been under a disability from the date his application was filed through the date of his decision. AR at 12-28. In response, Mr. Crockett filed a “Request for Review of Hearing Decision/Order” on November 9, 2016. AR at 189-191. After reviewing his case, the Appeals Council denied Mr. Crockett's request for review on July 26, 2017. AR at 1-6. 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 now 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 he 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4).[2]

         At Step One of the sequential evaluation process, the ALJ found that Mr. Crockett has not engaged in substantial gainful activity since his application date. AR at 17. At Step Two, he determined that Mr. Crockett has the severe impairments of “degenerative disc disease of the lumbar spine, posttraumatic stress disorder (PTSD), fibromyalgia, and attention deficit hyperactivity disorder (ADHD)[.]” AR at 17. At Step Three, the ALJ concluded that Mr. Crockett's impairments, individually and in combination, do not meet or medically equal the regulatory “listings.” AR at 17-19. Mr. Crockett does not challenge these findings on appeal. [See Doc. 20].

         When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). “RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.” SSR 96-8p, 1996 WL 374184, at *2. “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. In this case, the ALJ determined that Mr. Crockett retains the RFC to:

perform sedentary work as defined in 20 CFR 416.967(a) except he can occasionally stoop and can occasionally climb ramps and stairs, but can never climb ladders, ropes or scaffolds. He is able to perform simple, routine tasks and can respond appropriately to the public on an ...

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