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Martinez v. Berryhill

United States District Court, D. New Mexico

March 25, 2019

RON P. MARTINEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on plaintiff Ron P. Martinez's Motion to Reverse and Remand for Rehearing with Supporting Memorandum (Doc. 20), which was fully briefed on January 4, 2018. Docs. 22, 23, 24. The parties consented to my entering final judgment in this case. Docs. 4, 7, 9. Having meticulously reviewed the record and being fully advised in the premises, the Court finds that the Administrative Law Judge (“ALJ”) applied the correct legal standards and that the ALJ's decision is supported by substantial evidence. The Court therefore DENIES Mr. Martinez's motion and dismisses this case with prejudice.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure 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.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted).

         “Substantial evidence is such relevant evidence as 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 or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).

The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agenc[y's] choice between two fairly conflicting views, even though the court 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) (internal quotations and citations omitted) (brackets in original).

         II. Applicable Law and Sequential Evaluation Process

          To qualify for disability benefits, a claimant must establish that he or she 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); 20 C.F.R. 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity”; (2) the claimant has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings[2] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

          Mr. Martinez is an unmarried, 49-year-old man who obtained vocational training in carpentry after high school graduation. AR 35-36.[3] Mr. Martinez worked as a carpenter for 26 years. AR 36, 200, 224. Mr. Martinez has a son who does not live with him. AR 304, 308. Mr. Martinez lived with and cared for his mother for several months beginning in November 2015 until she entered a nursing home in 2016. AR 31, 32, 38, 273. Mr. Martinez filed applications for Disability Insurance Benefits and Supplemental Security Income on September 5, 2013, [4] alleging disability beginning March 10, 2009, due to anxiety, panic attacks, major depression, vision problems, lower back problems, knees, shoulders, agoraphobia with panic disorder, and arthritis. AR 167-79, 192. The Social Security Administration (“SSA”) denied his claims initially and on reconsideration. AR 44-129. Mr. Martinez requested a hearing on August 19, 2014. AR 130-32. On February 9, 2016, ALJ Kim Fields held a hearing, at which a medical expert, Mr. Martinez, and a vocational expert (“VE”) testified. AR 28-43. Mr. Martinez appeared at the hearing without representation and signed a waiver of his right to representation. AR 30, 165. ALJ Fields issued an unfavorable decision on March 25, 2016. AR 10-27.

         The ALJ determined that Mr. Martinez met the insured status requirements of the Social Security Act through March 31, 2014. AR 15. At step one, the ALJ found that Mr. Martinez had not engaged in substantial, gainful activity since March 10, 2009, the alleged onset date. Id. Because Mr. Martinez had not engaged in substantial gainful activity for at least twelve months, the ALJ proceeded to step two. Id. At step two, the ALJ found that Mr. Martinez had the following severe impairments: “degenerative disc disease (DDD); depression and anxiety.” AR 15. At step three, the ALJ found that none of Mr. Martinez's impairments, alone or in combination, met or medically equaled a Listing. AR 15-17. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Mr. Martinez's RFC. AR 17-20. The ALJ found that:

the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except simple, routine and repetitive tasks; occasional contact with coworkers and the general public; and no quotas. Further the claimant is limited to sit one hour, stand up to 30 minutes and no overhead lifting.

AR 17.

         At step four, the ALJ found that Mr. Martinez is unable to perform his past relevant work as a carpenter. AR 20-21. The ALJ found that Mr. Martinez was not disabled at step five. Relying on the VE testimony, the ALJ concluded that Mr. Martinez still could perform jobs that exist in significant numbers in the national economy, such as “cutter and paster” and “document preparer.” AR 21-22. Mr. Martinez requested review by the Appeals Council, which denied the request on March 8, 2017. AR 1-5, 8-9. Mr. Martinez timely filed his appeal to this Court on May 1, 2017. Doc. 1.[5]

         IV. Mr. Martinez's Claims

         Mr. Martinez raises five main arguments for reversing and remanding this case: (1) that the ALJ failed to assess his work-related abilities on a function-by-function basis; (2) that the ALJ failed to incorporate all of his mental limitations and failed to develop the record with regard to his mental limitations; (3) the ALJ failed to properly assess certain medical opinions; (4) that the ALJ's credibility determination was not closely and affirmatively linked to substantial evidence; and (5) that the ALJ improperly relied on the VE testimony and failed to provide a sufficient number of jobs that Mr. Martinez still could perform in the national economy. Doc. 20 at 1-2, 5-21.

         V. Discussion

         A. Function-by-Function Assessment

         Mr. Martinez first contends that the ALJ failed to include limitations in his RFC that are supported by the record because he failed to assess his work-related abilities on a function-by-function basis. Specifically, Mr. Martinez argues that he has limitations in his ability to lift, carry, push, and reach objects, and handle and finger. Doc. 20 at 5-6. The ALJ, however, properly assessed each of Mr. Martinez's abilities, and a function-by-function assessment was not critical in this case.

         An “RFC determines a work capability that is exertionally sufficient to allow performance of at least substantially all of the activities of work at a particular level.” SSR 83-10, 1983 WL 31251, at *2. It reflects “the maximum amount of each work-related activity the individual can perform.” SSR 96-8p, 1996 WL 374184, at *7. To insure accuracy, “[t]he RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, ” including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. SSR 96-8p, 1996 WL 374184, at *1. In other words, the ALJ must consider how the claimant's impairments affect his physical abilities, mental abilities, and other abilities. 20 C.F.R. §§ 404.1545(b)-(d) and 416.945 (b)-(d). This assessment is important because an “adjudicator may either overlook limitations or restrictions that would narrow the ranges and types of work an individual may be able to do, or find that the individual has limitations or restrictions that he or she does not actually have.” SSR 96-8p, 1996 WL 374184, at *4. “Initial failure to consider an individual's ability to perform the specific work-related functions could be critical to the outcome of a case.” Id. at *3.

         On the other hand, a function-by-function assessment is not always critical to the outcome of a case. For example, in Hendron v. Colvin, 767 F.3d 951 (10th Cir. 2014), the ALJ determined that Ms. Hendron had the RFC “to perform the full range of sedentary work as defined in 20 C.F.R. [§] 404.1567(a).” Id. at 953 (internal quotations omitted). The ALJ had considered that prolonged sitting aggravated Ms. Hendron's lower back pain, but observed that it was pain she experienced either before or after the relevant time period. Id. at 957. The Tenth Circuit held that a function-by-function assessment was not critical to the outcome of the case because the evidence did not support a limitation on Ms. Hendron's ability to sit during the relevant time period. Id. (explaining that “the ALJ did not overlook Ms. Hendron's problems with sitting; he found that the evidence did not support any limitation on her ability to sit during the Relevant Time Period”).

         As in Hendron, a function-by-function assessment was not critical to the outcome of this case. The ALJ limited Mr. Martinez to sedentary work.

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. §§ 404.1567(a); 415.967(a). Mr. Martinez argues that numbness and tingling in his arms affects his ability to lift, push, and carry objects. Doc. 20 at 5. Mr. Martinez testified that he cannot lift more than 10 pounds. See AR 38. By limiting Mr. Martinez to sedentary work, the ALJ's RFC limits Mr. Martinez only to jobs that “involve[] lifting no more than 10 pounds at a time.” 20 C.F.R. §§ 404.1567(a); 415.967(a). There is no evidence in the record that Mr. Martinez is unable to lift or carry small articles such as docket files, ledgers, or small tools. Mr. Martinez's lifting and carrying abilities, therefore, are consistent with sedentary work. Further, sedentary work does not typically involve pushing objects. Id. Thus, any limitation to Mr. Martinez's ability to push objects is consistent with the RFC.

         Mr. Martinez also contends that his bi-lateral carpel tunnel syndrome limits his ability handle and finger. Doc. 20 at 6. “Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. Fine movements of small objects require use of the fingers; e.g., to pick or pinch. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.” SSR 96-9p, 1996 WL 374185, at *8. There is evidence that Mr. Martinez suffers from carpel tunnel syndrome, and numbness and tingling in his arms. AR 244, 266, 349-50, 354, 373-74, 376-77, 387. Mr. Martinez was prescribed wrist splints and received injections for carpel tunnel syndrome. AR 374, 376-77. There is no evidence, however, that the treatment was unsuccessful or that Mr. Martinez's carpel tunnel syndrome limits his ability to handle and finger. The conclusion drawn by counsel that Mr. Martinez's carpel tunnel syndrome caused specific limitations to his ability to handle and finger is not supported by any medical opinions or other evidence in the record.

         Finally, in his opening brief, Mr. Martinez summarizes his medical records with regard to his cervical and lumbar spine, knee and back pain, torn rotator cuff, depression, and anxiety. Doc. 20 at 6-13. Mr. Martinez contends that the ALJ failed to make “specific findings, ” and that the substantial objective evidence supports Mr. Martinez claimed limitations. Id. at 10. Mr. Martinez, however, presents no legal authority or argument that establishes how or why these particular medical issues limited his functional abilities more than the ALJ assessed in his RFC. The Court will consider and discuss only the contentions that have been adequately briefed. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir.2004) (“The scope of our review . . . is limited to the issues the claimant . . . adequately presents on appeal.”)). The Court will not discuss or consider the summarized medical records because Mr. Martinez does not explain why these medical records make a function-by-function analysis critical to this case.

         The evidence in this case does not support any work-related limitations beyond Mr. Martinez's ability to perform sedentary work as described in the RFC. Thus, a function-by-function assessment was not critical to the outcome, and the ALJ did not err in failing to assess Mr. Martinez's limitations on a function-by-function basis.

         B. Failure to Develop the Record.

         Mr. Martinez contends that the ALJ failed to develop the record with regard to his mental impairment.[6] Doc. 20 at 13-16. Mr. Martinez argues that “the record did not contain a psychological consultative evaluation and the ALJ failed to order one.” Doc. 20 at 14.[7]

         While an ALJ has the duty to develop the record, the Commissioner has broad latitude in deciding whether to order a consultative exam. Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997). Generally, an ALJ should order a consultative exam where there is a direct conflict in the medical evidence requiring resolution, where the medical evidence in the record is inconclusive, or where additional tests are required to explain a diagnosis already contained in the record. Id. (internal citations omitted); see also 20 C.F.R. § 416.919a (describing the situations that may require a consultative examination). “A consultative examination may be purchased when the evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on your claim.” Hawkins, 113 F.3d at 1167 (quoting 20 C.F.R. § 404.1512(f). 20 C.F.R. § 404.1519a).

         Mr. Martinez does not point to any direct conflict in the medical evidence requiring resolution, or to where the medical evidence in the record is inconclusive, or to where additional tests are required to explain a diagnosis already contained in the record. Indeed, as Mr. Martinez points out, “the ALJ had before him two opinions that Mr. Martinez had moderate and marked limitations in areas of mental functioning required for all work.” Doc. 20 at 14. Further, Mr. Martinez acknowledges that a medical expert, Dr. Adams, testified at the hearing. Doc. 20 at 14; Doc. 23 at 1, 2. Dr. Adams also found moderate limitations in areas of mental functioning required for all work. AR 34-35. Consequently, the evidence was sufficient to support a decision, and a consultative examination was not necessary. The ALJ did not err by failing to order a consultative examination.

         C. RFC Finding

         Mr. Martinez contends that the ALJ failed to account for mental limitations in his RFC. This argument is without merit. First, Mr. Martinez misstates the record. He argues that “the ALJ found Mr. Martinez to have a marked limitation in social functioning due to agoraphobia, yet failed to properly incorporate that limitation into the RFC, finding Mr. Martinez could have occasional interaction with coworkers and the public and putting no limitations on his ability to interact with supervisors.” Doc. 20 at 14. The ALJ was not so specific. At step three, in assessing whether Mr. Martinez's impairments met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1, the ALJ found:

In social functioning, the claimant has marked difficulties. The Claimant has alleged panic attacks and reported he avoids going out, especially to restaurants. He has been noted to be uncomfortable with the general public. I find claimant's mental impairments result in marked difficulties in social functioning.

         Neither the ALJ, nor any medical provider, found that Mr. Martinez had a marked limitation in social ...


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