United States District Court, D. New Mexico
RON P. MARTINEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
FASHING UNITED STATES MAGISTRATE JUDGE
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
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision 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
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
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(internal quotations and citations omitted) (brackets in
Applicable Law and Sequential Evaluation Process
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).
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 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.
Background and Procedural History
Martinez is an unmarried, 49-year-old man who obtained
vocational training in carpentry after high school
graduation. AR 35-36. 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,  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.
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.
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.
Mr. Martinez's Claims
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.
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.
“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
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”).
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
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
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
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.
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.
Failure to Develop the Record.
Martinez contends that the ALJ failed to develop the record
with regard to his mental impairment. 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.
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).
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
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
the ALJ, nor any medical provider, found that Mr. Martinez
had a marked limitation in social ...