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Marquez-Flores v. Berryhill

United States District Court, D. Colorado

April 18, 2019

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


          CHRISTINE M. ARGUELLO, United States District Judge.

         This matter is before the Court on review of the Social Security Commissioner's decision denying Plaintiff Phyllis Marquez-Flores's applications for disability benefits under Titles II and XVI of the Social Security Act (the “Act”). Jurisdiction is proper pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         Ms. Marquez-Flores argues that the administrative law judge's (“ALJ”) determination that she can perform work that exists in significant numbers is erroneous. (Doc. # 15.) Because the ALJ's used the correct legal standards and his analysis was supported by substantial evidence, the Court rejects Ms. Marquez-Flores's arguments and affirms the decision of the Commissioner.

         I. BACKGROUND

         Ms. Marquez-Flores was 49 years old on April 1, 2014, the alleged onset of her disability. (Doc. # 11-5 at 138-48.)[1] Prior to the alleged onset of her disability, she worked for more than a decade as a machine shop supervisor and had more recently completed coursework to become a certified nursing assistant (“CNA”). (Doc. # 11-6 at 172-73; Doc. # 11-2 at 11.)

         Ms. Marquez-Flores applied for disability insurance benefits under Title II of the Social Security Act and for supplemental security income under Title XVI of the Act on September 15, 2014. (Doc. # 11-5 at 138-48.) Ms. Marquez-Flores reported that the following physical and mental conditions had limited her ability to work since April 1, 2014: “back injury; neck to shoulder pain; left arm pain; vertigo; bipolar [disorder], [and] PTSD [post-traumatic stress disorder].” (Doc. # 11-6 at 164.) An administrator at the regional Social Security Office in Pueblo, Colorado, initially denied both of Ms. Marquez-Flores's applications on December 9, 2014. (Doc. # 11-3 at 48-75.) The administrator explained its determination as follows in a notification to Ms. Marquez-Flores:

Evidence indicates you sought treatment due to shoulder pain and depression. While you may experience some limitations due to difficulty reaching and depression, your condition is not severe enough to prevent you from working. After reviewing medical and other evidence, we have determined that you can adjust to other work. However, you may want to consider less strenuous employment that limits interpersonal contact.

(Id. at 62.) Ms. Marquez-Flores, represented by counsel Steven Earl, requested a hearing before an ALJ on January 7, 2015. (Doc. # 11-4 at 88-89.)

         ALJ William Musseman conducted a hearing on November 22, 2016, in Pueblo, Colorado. (Doc. # 11-2 at 7-21.) Ms. Marquez-Flores, her representative, and an impartial vocational expert, Bruce Magnuson, were present. (Id. at 7.) Ms. Marquez-Flores testified about pain in her left shoulder and arm that stemmed from a low-speed car accident years prior, the frequency with which she experienced vertigo, and her recent surgery to address narrowing at the C6-C7 vertebrae in her neck. (Id. at 11-15.) She described how she experienced PTSD and depression and how prescription medication made “somewhat” of a difference. (Id. at 15-16.) Finally, Ms. Marquez-Flores explained that she kept up with her own housework, such as preparing her meals, washing her dishes, laundering her clothes, and doing her own grocery shopping, and with her personal hygiene. (Id. at 16-17.) She stated that on an average day, she mostly “stay[ed] in [her] room . . . listen[ing] to music or watch[ing] TV” and did not have social activities outside of the house she shared with her niece and her niece's two daughters. (Id.) Mr. Magnuson, the vocational expert, also testified briefly at the hearing. (Id. at 18-20.) When prompted by the ALJ, Mr. Magnuson stated that an individual of Ms. Marquez-Flores's age, education, and work background and able to do a “full range of light” work would not be able to perform Ms. Marquez-Flores's past work as a machine shop supervisor but could find employment as a storage facility rental clerk, assembler of small products, or cleaner. (Id. at 19-20.)

         The ALJ concluded that Ms. Marquez-Flores was not disabled, as defined in the Act, and therefore was not entitled to disability insurance benefits or supplemental security income benefits in a written decision on January 24, 2017 (the “Decision”). (Id. at 31-47.) The ALJ's Decision followed the five-step sequential evaluation required by regulation. (Id.); see 20 C.F.R. § 404.1520(a)(4) (2017).[2] Relevant here, the ALJ determined that Ms. Marquez-Flores had several severe impairments-“degenerative disc disease of the cervical spine; obesity; bipolar disorder; and [PTSD]”-but that these severe impairments, considered singly and cumulatively, did not “meet or medically equal the severity of one of the listed impairments” in the Social Security Administration's Listing of Impairments, [3] see 20 C.F.R. § 414.1520(d). (Doc. # 11-2 at 36-37.) The ALJ next found that Ms. Marquez-Flores had the following residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)[4] and 416.967(b) except that claimant can: occasionally do overhead chest level work; frequently turn/flex neck, and frequently handler/finger. The claimant requires no complex/unskilled tasks, SVP 2[5] or less. She can occasionally deal with the general public and coworkers.

(Id. at 39.) Finally, based on the vocational expert's testimony, the ALJ decided that “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant could perform.” (Id. at 42.) Accordingly, the ALJ concluded that Ms. Marquez-Flores “ha[d] not been under a disability, as defined in the Social Security Act, from April 1, 2014, through the date of this decision [January 27, 2017].” (Id. at 43.)

         On March 13, 2017, Ms. Marquez-Flores requested that the Appeals Council review the ALJ's decision. (Doc. # 11-4 at 135-37.) The Appeals Council denied Ms. Marquez-Flores's request for review on February 8, 2018, briefly stating that it “found no reason under [its] rules to review the Administrative Law Judge's decision.” (Doc. # 11-2 at 1-6.) When the Appeals Council declined review, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981; see Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006).

         Ms. Marquez-Flores initiated the instant action on April 12, 2018, seeking reversal of the ALJ's Decision and the award of Social Security benefits to her.[6] (Doc. # 1.) After the Commissioner filed the Administrative Record, see (Doc. ## 11-11-12), Ms. Marquez filed her Opening Brief on July 19, 2018 (Doc. # 15). The Commissioner filed a Response on August 7, 2018. (Doc. # 16.)


         When reviewing the Commissioner's decision, the Court is limited to determining “whether the findings are supported by substantial evidence and whether the Secretary applied the correct legal standards.” Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir. 1991); see also 42 U.S.C. § 405(g).

         First, the Supreme Court has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). “Substantial evidence is more than a scintilla, but less than a preponderance . . . .” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987). In reviewing the record to make the substantial evidence determination, the Court “may not reweigh the evidence nor substitute [its] judgment for the Secretary's.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). In addition, the Court “may not displace the agency's choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and citation omitted). Also, the Court “defer[s] to the ALJ on matters involving the credibility of witnesses.” Glass, 43 F.3d at 1395. “A finding of ‘“no substantial evidence” will be only where there is a “conspicuous absence of credible choices” or “no contrary medical evidence.”'” Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).

         Second, “[f]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). “There are specific rules of law that must be followed in deciding whether evidence is substantial in these disability cases.” Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

         However, not every error in evaluating evidence or applying the correct legal standard warrants reversal or remand. “Courts may not reverse and remand for failure to comply with a regulation without first considering whether the error was harmless.” Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (recognizing that the Tenth Circuit has “specifically applied [the principle of harmless error] in social security disability cases” and collecting cases). Harmless error exists where it is “inconceivable” that a different administrative conclusion would have been reached absent the error. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003).

         III. LAW

         “Disability” is defined in the Social Security Act as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1)(A) (2017). The Act further provides that

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial work which exists in the national economy. . . .

42 U.S.C. § 423(d)(2)(A) (2017). The claimant bears the burden of proving that she is disabled. 20 C.F.R. § 404.1512(a) (2017); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009).

         The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4) (2017). The steps of the evaluation are whether: (1) the claimant is currently working; (2) the claimant has a severe impairment; (3) the claimant's impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) the impairment precludes the claimant from doing her past relevant work; and (5) the impairment precludes the claimant from doing any work. Id.; Williams v. Bowen, 844 F.3d 748, 750-51 (10th Cir. 1988). A finding that a claimant is or is not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         IV. ANALYSIS

         Ms. Marquez-Flores argues on appeal that the ALJ erred in three ways: (1) the ALJ's findings were not supported by substantial evidence because the ALJ “failed in his duty to develop the record;” (2) the ALJ's assessment of her RFC was riddled with errors; and (3) the ALJ's reliance on the vocational expert's testimony was unreasonable. (Doc. # 15.) The Court rejects each argument in turn.


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