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Martinez v. Berryhill

United States District Court, D. New Mexico

February 23, 2018

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.


          KIRTAN KHALSA United States Magistrate Judge.

         THIS 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 DENIED.

         I. Background and Procedural Record

         Claimant 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.[3]) 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. (Tr. 251.)

         On 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.)

         II. Applicable Law

         A. Disability Determination Process

         An 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.”[4] If the claimant is engaged in substantial gainful activity, he is not disabled regardless of his medical condition.
(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 disabled.
(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 presumed disabled.
(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).

         B. Standard of Review

         This 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).

         III. Analysis

         The ALJ 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.)

         In 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.)

         For the 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.

         A. The ALJ Failed to Resolve the Conflict Between the VE's Testimony and the DOT for the ...

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