Opinion
Case No. 02-4025-JAR
March 5, 2004
MEMORANDUM AND ORDER ADOPTING RECOMMENDATION AND REPORT
The Commissioner of Social Security denied Plaintiff's application for disability insurance benefits under §§ 216(i) and 223 of the Social Security Act. Plaintiff sought review of the Administrative Law Judge's ("ALJ") decision and the Honorable John Thomas Reid issued a Recommendation and Report (Doc. 14) on October 28, 2003, which recommended the Commissioner's decision be reversed and the case remanded for further proceedings. This matter is currently before the Court on Defendant's Objection to the Recommendation and Report (Doc. 15) and Plaintiffs Response to Defendant's Objection (Doc. 16).
A. Standard of Review
The standards the Court must employ when reviewing objections to a recommendation and report are clear. Only those portions of a recommendation and report identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation. "
See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72.
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); see also Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D. Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
B. Magistrate's Findings
After reviewing the ALJ's decision, the Magistrate determined the decision should be reversed and the case remanded for further proceedings. The Magistrate concluded the ALJ erred in his credibility determination by: 1) relying only on evidence supportive of his conclusion and ignoring other uncontroverted evidence; 2) substituting his own opinion for that of a medical professional and; 3) committing numerous factual errors. Additionally, the Magistrate determined the ALJ erred in his step-five determination by applying the wrong legal standard to resolve whether there are a significant number of jobs in the national economy of which Plaintiff is capable.
C. Defendant's Objection
Defendant does not oppose remand; rather, Defendant suggests only that remand due to an error in the ALJ's step-five determination is improper. Principally, Defendant contends that the Magistrate "misinterpreted" Trimiar v. Sullivan , when the Magistrate concluded the ALJ's failure to consider the factors set forth in Trimiar in his "significant number" determination constituted error. The Court disagrees.
966 F.2d 1326, 1330 (10th Cir. 1992).
The Tenth Circuit has refused to draw a bright line regarding the number of jobs necessary to constitute a significant number under the Social Security Act. However, as Trimiar teaches, several factors should be considered in making a proper significant number determination including: "the level of claimant's disability; the reliability of the vocational expert's testimony; the distance claimant is capable of travelling [sic] to engage in the assigned work; the isolated nature of the jobs; the types and availability of such work, and so on." Because the ALJ only addressed the level of Plaintiffs disability and the types and availability of jobs which Plaintiff could perform, the Magistrate concluded remand was necessary for the ALJ to make additional findings regarding the factors outlined in Trimiar. The Magistrate was specifically concerned that the ALJ failed to explain why the vocational expert's testimony was reliable, to consider the distance Plaintiff was capable of traveling and to discuss whether the jobs of which Plaintiff was capable were isolated.
Trimiar, 966 F.2d at 1330.
id.
Defendant claims the Magistrate erred in his conclusion that the ALJ must make specific findings as directed by Trimiar. In support, Defendant directs the Court to two Eighth Circuit cases, an unpublished Tenth Circuit case, and statutory authority. None of Defendant's authority is persuasive. The Eighth Circuit cases cited by Defendant are not controlling in this Court. Nor may an unpublished Tenth Circuit case overrule binding precedent. Moreover, a close look at the statutory authority relied upon by Defendant supports the Magistrate's conclusion. 20 C.F.R. § 404.1566(b) cited by Defendant states, "isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where you live are not considered `work which exists in the national economy.' We will not deny you disability benefits on the basis of the existence of these kinds of jobs." By noting that the number of jobs Plaintiff was capable of performing was low and that the positions were possibly outside the region where Plaintiff lived, the Magistrate's interpretation is consistent both with Trimiar and with Defendant's authority. Finally, and perhaps most telling is that Defendant provides no authority suggesting Trimiar is no longer good law. Indeed, Trimiar has never been overruled by the Tenth Circuit. Defendant's objection is denied and the Court accepts the October 28, 2003 Recommendation and Report and adopts it as its own.
Nelson v. Sullivan, 946 F.2d 1314, 1317 (8th Cir. 1991), and Trenary v. Bowen, 898 F.2d 1361, 1365 (8th Cir. 1990), were cited for the proposition that the ALJ was justified in relying on the vocational expert's testimony.
Gravitt v. Apfel, No. 98-7156, 1999 WL 476026 at *2 (10th Cir. 1999).
See Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987) ("But the decisions of one circuit court of appeals are not binding upon another circuit.").
See 10th Cir.R. 36.3(A); Ricks v. Nickels, 295 F.3d 1124, 1132-33 (10th Cir. 2002).
See e.g., Kelley v. Chater, 62 F.3d 335, 338 (citing Trimiar with approval).
IT IS THEREFORE ORDERED that Defendant's Objection to the United State Magistrate Judge's Recommendation and Report (Doc. 15) shall be denied
IT IS FURTHER ORDERED that the October 28, 2003 Recommendation and Report (Doc. 14) shall be accepted by the Court and adopted as its own.