United States District Court, D. Colorado
ORDER AFFIRMING THE DENIAL OF BENEFITS
CHRISTINE M. ARGUELLO, United States District Judge.
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).
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.
Marquez-Flores was 49 years old on April 1, 2014, the alleged
onset of her disability. (Doc. # 11-5 at
138-48.) 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.)
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.
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.)
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.)
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). 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,  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) 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 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
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).
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. (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.)
STANDARD OF REVIEW
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).
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)).
“[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).
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).
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).
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).
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.
SUBSTANTIAL EVIDENCE SUPPORTS ...