United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER 
KHALSA United States Magistrate Judge.
MATTER is before the Court on the Social Security
Administrative Record (Doc. 13) filed March 15, 2017, in
support of Plaintiff Manuel Edward Martinez's
(“Plaintiff”) Complaint (Doc. 1) seeking review
of the decision of Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claim for Title II disability
insurance benefits and Title XVI supplemental security income
benefits. On April 28, 2017, Plaintiff filed his Motion to
Reverse and Remand Administrative Agency Decision and
Memorandum Brief in Support of Motion to Reverse and Remand
(“Motion”). (Docs. 16, 17.) The Commissioner
filed a Response in opposition on June 29, 2017 (Doc. 25),
and Plaintiff filed a Reply on August 2, 2017. (Doc. 26.) The
Court has jurisdiction to review the Commissioner's final
decision under 42 U.S.C. §§ 405(g) and 1383(c).
Having meticulously reviewed the entire record and the
applicable law and being fully advised in the premises, the
Court finds the Motion is not well taken and is
Background and Procedural Record
Manuel Edward Martinez (“Mr. Martinez”) alleges
that he became disabled on March 1, 2008, at the age of
forty-five because of back injury, right knee surgery,
shoulder pain, depression, anxiety, post-traumatic stress
disorder, and left elbow dislocated. (Tr. 59-60, 247,
250.) Mr. Martinez completed the seventh grade
in 1977, and worked for twenty-seven years on oil field
derricks. (Tr. 251, 269.) Mr. Martinez reported he stopped
working on April 21, 2007, due to his medical conditions.
September 12, 2012, Mr. Martinez filed an application for
Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
seq. (Tr. 224-27.) He also filed an application for
Supplemental Security Income (“SSI”) under Title
XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 210-19,
228-32.) Mr. Martinez's applications were initially
denied on December 13, 2012. (Tr. 57, 58, 128-32.) They were
denied again at reconsideration on July 25, 2013. (Tr. 123,
124.) On September 3, 2013, Mr. Martinez requested a hearing
before an Administrative Law Judge (“ALJ”). (Tr.
144-45.) The ALJ conducted a hearing on July 17, 2014. (Tr.
33-56.) Mr. Martinez appeared in person at the hearing with
attorney representative Wayne Walterscheid of The Jeff
Diamond Law Firm. (Id., 208.) The ALJ took testimony
from Mr. Martinez (Tr. 36-47), and an impartial vocational
expert (“VE”), Casey Suggs (Tr. 47-52). On
October 27, 2014, ALJ Benita A. Lobo issued an unfavorable
decision. (Tr. 9-27.) On August 16, 2016, the Appeals Council
issued its decision denying Mr. Martinez's request for
review and upholding the ALJ's final decision. (Tr. 1-5.)
On October 13, 2016, Mr. Martinez timely filed a Complaint
seeking judicial review of the Commissioner's final
decision. (Doc. 1.)
Disability Determination Process
individual is considered disabled if 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
12 months.” 42 U.S.C. § 423(d)(1)(A) (pertaining
to disability insurance benefits); see also 42
U.S.C. § 1382(a)(3)(A) (pertaining to supplemental
security income disability benefits for adult individuals).
The Social Security Commissioner has adopted the familiar
five-step sequential analysis to determine whether a person
satisfies the statutory criteria as follows:
(1) At step one, the ALJ must determine whether the claimant
is engaged in “substantial gainful
activity.” If the claimant is engaged in substantial
gainful activity, he is not disabled regardless of his
(2) At step two, the ALJ must determine the severity of the
claimed physical or mental impairment(s). If the claimant
does not have an impairment(s) or combination of impairments
that is severe and meets the duration requirement, he is not
(3) At step three, the ALJ must determine whether a
claimant's impairment(s) meets or equals in severity one
of the listings described in Appendix 1 of the regulations
and meets the duration requirement. If so, a claimant is
(4) If, however, the claimant's impairments do not meet
or equal in severity one of the listing described in Appendix
1 of the regulations, the ALJ must determine at step four
whether the claimant can perform his “past relevant
work.” Answering this question involves three phases.
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). First, the ALJ considers all of the relevant medical
and other evidence and determines what is “the most
[claimant] can still do despite [his physical and mental]
limitations.” 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). This is called the claimant's residual
functional capacity (“RFC”). Id.
§§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ
determines the physical and mental demands of claimant's
past work. Third, the ALJ determines whether, given
claimant's RFC, the claimant is capable of meeting those
demands. A claimant who is capable of returning to past
relevant work is not disabled.
(5) If the claimant does not have the RFC to perform his past
relevant work, the Commissioner, at step five, must show that
the claimant is able to perform other work in the national
economy, considering the claimant's RFC, age, education,
and work experience. If the Commissioner is unable to make
that showing, the claimant is deemed disabled. If, however,
the Commissioner is able to make the required showing, the
claimant is deemed not disabled.
See 20 C.F.R. § 404.1520(a)(4) (disability
insurance benefits); 20 C.F.R. § 416.920(a)(4)
(supplemental security income disability benefits);
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th
Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005). The claimant has the initial
burden of establishing a disability in the first four steps
of this analysis. Bowen v. Yuckert, 482 U.S. 137,
146, n.5, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (1987).
The burden shifts to the Commissioner at step five to show
that the claimant is capable of performing work in the
national economy. Id. A finding that the claimant is
disabled or not disabled at any point in the five-step review
is conclusive and terminates the analysis. Casias v.
Sec'y of Health & Human Serv., 933 F.2d
799, 801 (10th Cir. 1991).
Standard of Review
Court must affirm the Commissioner's denial of social
security benefits unless (1) the decision is not supported by
“substantial evidence” or (2) the ALJ did not
apply the proper legal standards in reaching the decision. 42
U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d
1208, 1214 (10th Cir. 2004); Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004); Casias, 933 F.2d at 800-01. In making these
determinations, the Court “neither reweigh[s] the
evidence nor substitute[s] [its] judgment for that of the
agency.'” Bowman v. Astrue, 511 F.3d 1270,
1272 (10th Cir. 2008). A decision is based on substantial
evidence where it is supported by “relevant evidence .
. . a reasonable mind might accept as adequate to support a
conclusion.” Langley, 373 F.3d at 1118. A
decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record[, ]”
Langley, 373 F.3d at 1118, or “constitutes
mere conclusion.” Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). The agency
decision must “provide this court with a sufficient
basis to determine that appropriate legal principles have
been followed.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005). Therefore, although
an ALJ is not required to discuss every piece of evidence,
“the record must demonstrate that the ALJ considered
all of the evidence, ” and “the [ALJ's]
reasons for finding a claimant not disabled” must be
“articulated with sufficient particularity.”
Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996).
made his decision that Mr. Martinez was not disabled at step
five of the sequential evaluation. (Tr. 25-26.) Specifically,
the ALJ determined that Mr. Martinez met the insured status
requirements of the Social Security Act through December 31,
2012, and that Mr. Martinez had not engaged in substantial
gainful activity since October 30, 2009 [sic]. (Tr. 15.) He
found that Mr. Martinez had severe impairments of
degenerative disk disease, borderline intellectual
functioning, attention deficit hyperactivity disorder (ADHD),
major depression disorder, anxiety disorder, post-traumatic
stress disorder (PTSD), cannabis dependence, and alcohol
dependence in remission. (Id.) The ALJ also found
that Mr. Martinez had nonsevere impairments of left elbow
dislocation, status post right knee surgery, pectoralis
muscle strain, and a history of skin conditions.
(Id.) The ALJ, however, determined that Mr.
Martinez's impairments did not meet or equal in severity
one the listings described in Appendix 1 of the regulations.
(Tr. 16-18.) As a result, the ALJ proceeded to step four and
found that Mr. Martinez had the residual functional capacity
to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(a) except that
claimant can occasionally climb, ladders, ropes, and
scaffolds. The claimant can occasionally stoop, kneel,
crouch, and crawl. The claimant would have to avoid
concentrated exposure to temperature extremes. The claimant
can perform work that is simple and routine in nature.
(Tr. 18-24.) The ALJ further concluded at step four that Mr.
Martinez was unable to perform any past relevant work. (Tr.
25.) The ALJ determined at step five that based on Mr.
Martinez's age, education, work experience, RFC, and the
testimony of the VE, there were jobs that exist in
significant numbers in the national economy that Mr. Martinez
could perform. (Tr. 25-26.) Based on the VE's testimony,
the ALJ identified three jobs that Mr. Martinez could
perform: dishwasher (DOT 318.687-010 - Kitchen Helper),
cashier (DOT 211.467-018 - Pari-Mutuel Ticket Cashier), and
hand packer (DOT 920.687-146 - Repack-Room Worker). (Tr. 26.)
support of his Motion, Mr. Martinez argues that the ALJ
improperly relied on the VE's testimony at step five
because the jobs the VE identified exceeded the ALJ's RFC
and the ALJ failed to resolve the apparent conflicts. (Doc.
17 at 6-11.) Specifically, Mr. Martinez argues that (1) the
kitchen helper job requires a person to frequently stoop and
crouch and requires frequent exposure to extreme heat; (2)
the cashier job requires a reasoning level of three which is
incompatible with the ALJ's mental RFC limiting him to
work that is simple and routine in nature; and (3) the
ALJ's reliance on the hand packer job is not supported by
substantial evidence because the ALJ's hypothetical
question to the VE did not include occasional stooping,
kneeling and crouching. (Doc. 17 at 7-10; Doc. 26 at 2.) The
Commissioner concedes that the dishwasher (kitchen helper)
job is inconsistent with the ALJ's RFC because it
requires frequent stooping and crouching and exposure to
extreme temperatures. (Doc. 25 at 6.) The Commissioner,
however, contends the ALJ's decision is supported by
substantial evidence because Mr. Martinez is capable of doing
the other two identified jobs, both of which exist in
significant numbers in the national economy. (Id. at
7-12.) The Commissioner further contends that even if the
Court were to determine that the cashier job was inconsistent
with the ALJ's RFC, Mr. Martinez is capable of doing the
hand packer job which exists in significant numbers in the
national economy. (Id. at 11.)
reasons discussed below, the Court finds that although the
ALJ failed to resolve the conflict between the VE's
testimony and the DOT for the jobs of dishwasher and cashier,
the ALJ nonetheless carried her burden at step five and
demonstrated that significant jobs exist in the national
economy that Mr. Martinez can perform. Therefore, the
ALJ's error is harmless.
The ALJ Failed to Resolve the Conflict Between the
VE's Testimony and the DOT for the ...