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Roybal v. Berryhill

United States District Court, D. New Mexico

January 24, 2019

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



         This 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”), [1] the Court grants Mr. Roybal's Motion and remands this case for further administrative fact finding.


         To be 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 See Chavez v. Barnhart, 126 Fed.Appx. 434, 436 (10th Cir. 2005) (unpublished).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.

         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 identified by the Administrative Law Judge in this case (42, 724) 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 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.


         Mr. 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.

         ALJ 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).

         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. §§ 404.1520(a)(4), 416.920(a)(4).[2]

         At Step 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].

         When a 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 to:

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 ...

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