United States District Court, D. New Mexico
RICHARD A. ROYBAL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
H. RITTER U.S. MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff Richard
Roybal's Motion to Reverse and Remand to Agency for
Rehearing, with Supporting Memorandum [Doc. 21], filed April
13, 2018. Pursuant to 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73(b), the parties have consented to
the undersigned Magistrate Judge to conduct dispositive
proceedings in this matter, including the entry of final
judgment. [Docs. 5, 10, 12]. Having studied the parties'
positions, the relevant law, and the relevant portions of the
Administrative Record (“AR”),
Court grants Mr. Roybal's Motion and remands this case
for further administrative fact finding.
considered disabled and eligible for benefits under the
Social Security Act, a claimant must demonstrate that he is
unable to return to his past work. See 42 U.S.C.
§§ 423');">23(d)(2)(A), 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Fed.Appx. 434, 436 (10th Cir. 2005) (unpublished).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.
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(unpublished).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 identified by the Administrative Law Judge in
this case (42, 724) is significantly lower than 152, 000.
not the first time this Court has been faced with a
“relatively small” number of jobs. See
Crockett v. Berryhill, CV 17-0955 JHR, 2018 WL 6250602
(D.N.M. Nov. 29, 2018) (6, 400 jobs); 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. 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
Crockett and Brandenburg, reiterated and
applied to this case below, the Court will grant Mr.
Roybal's Motion to remand his case to the Administration
for further fact finding.
Roybal filed an application with the Social Security
Administration for disability insurance benefits and
supplemental security income benefits under Titles II and XVI
of the Social Security Act on May 6, 2014. AR at
202-205. As grounds, Mr. Roybal alleged “Titanium Rob
(sic) in Left leg, Left shoulder, rotator cuff injury, PTSD,
Anxiety, Depression, Short Term Memory loss, Traumatice (sic)
Brain Injury, Type II Diabetes, High Blood Pressure, Lower
and Upper back pain, 2-4 mild strokes.” AR at
57-58. Mr. Roybal alleged that his conditions became severe
enough to keep him from working on March 1, 2011. AR
at 211. The Administration denied Mr. Roybal's claim
initially and upon reconsideration, and he requested a de
novo hearing before an administrative law judge
(“ALJ”). AR at 57-109.
Jennifer Fellabaum held a hearing on September 28, 2016.
AR at 33-56. On November 16, 2016, the ALJ issued an
unfavorable decision, finding that Mr. Roybal has not been
under a disability from his alleged onset date through the
date of her decision. AR at 14-31. In response, Mr.
Roybal requested review of the ALJ's decision by the
Appeals Council on December 6, 2016. AR at 10-13.
After reviewing his case, the Appeals Council denied Mr.
Roybal's request for review on September 8, 2017.
AR at 1-9. 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).
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.
§§ 423');">23(d)(1)(A), 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. §§
One of the sequential evaluation process, the ALJ found that
Mr. Roybal has not engaged in substantial gainful activity
since February 13, 2014, the date of his “previous
judicial determination.” AR at 19. At Step
Two, she determined that Mr. Roybal has the severe
impairments of “degenerative disc disease of the lumbar
and cervical spine; left leg tibia and fibia fracture with
rods; diabetes; left ear hearing loss; depression and
post-traumatic stress disorder[.]” AR at 20.
At Step Three, the ALJ concluded that Mr. Roybal's
impairments, individually and in combination, do not meet or
medically equal the regulatory “listings.”
AR at 20-22. With the minor exception of his severe
impairments (Mr. Roybal contends the ALJ failed to include
some at Step Two), Mr. Roybal does not challenge these
findings on appeal. [See Doc. 21].
claimant does not meet a listed impairment, the ALJ must
determine his residual functional capacity
(“RFC”). 20 C.F.R. §§ 404.1520(e),
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. Roybal retains the RFC
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except the claimant: can occasionally lift/carry
up to 50 pounds and frequently up to 25 pounds; can sit up to
six hours in an eight-hour workday; can stand and/or walk up
to six hours in an eight-hour workday; can frequently climb
ramps and stairs, balance, stoop, kneel, crouch and crawl;
can frequently reach, finger, handle and feel bilaterally
with non-dominant upper extremity; can never climb ladders
ropes or scaffolds; can never be exposed to unprotected
heights, hazardous materials. And requires work environments
no louder than a typical office environment. In addition, the