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Martinez v. Berryhill

United States District Court, D. New Mexico

April 10, 2019

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER is before the Court upon Plaintiff Enriquez Martinez's ("Plaintiff's") "Motion to Reverse and/or Remand" ("Motion"). ECF 24. The Motion is fully briefed. See ECFs 30 (Commissioner's Response), 31 (Plaintiffs Reply). On August 14, 2018, U.S. District Judge Martha Vazquez referred the above-captioned cause to this Court for recommended findings and disposition. ECF 18. Having meticulously reviewed the entire record and the parties' briefing, the Court recommends that the Motion be DENIED and the Administrative Law Judge's ("ALJ's") ruling be AFFIRMED.


         Plaintiff was born in 1974. Administrative Record ("AR") 141. He completed schooling through the eighth grade and in 1992 earned his General Education Development ("GED") diploma. AR 31, 171. He testified in January 2017 that he lived with his then 61-year-old mother and his two daughters, then ages ten and six, who were jointly adopted by Plaintiff and his mother. AR 31, 42.[1]Plaintiff worked as a warehouse manager from 1994 until September 2013, performing both "heavy, semi-skilled work" and "light, skilled work" in this position. AR 20, 45, 162, 171. During a time of cutbacks, Plaintiffs employer decided that two supervisors were unnecessary, and Plaintiff was consequently laid off from this job in September 2013. AR 33-34, 40.[2] Approximately one year later, Plaintiff applied for "a Period of Disability and Disability Insurance Benefits" with the Social Security Administration ("SSA"), claiming that his inability to work began on September 5, 2013, the day he stopped working. AR 102, 141, 159, 170.[3]Plaintiff claimed that he was disabled due to three conditions: diabetes, high blood pressure, and arthritis. AR 51, 141, 170.

         In April 2015, the SSA denied Plaintiffs initial claim, finding that Plaintiffs alleged impairments from these conditions were "non-severe," "inconsistent and disproportionate" with the evidence, and "[did] not result in significant limitations" in his ability to work. AR 54-56. In July 2015, upon Plaintiffs request for reconsideration, the SSA again denied Plaintiffs claim AR 64. It found, however, that Plaintiffs obesity qualified as a "severe" impairment and concluded that Plaintiff had "some limitations" in his ability to work-although nothing severe enough to keep him from working, including at his previous job. AR 65.

         Plaintiff then requested a hearing, which was held before ALT James Bentley in January 2017. AR27, 82. Assisted by counsel, Plaintiff testified at the hearing, as did Melissa Brassfield, a vocational expert. AR 30, 44. In February 2017, "after careful consideration of all of the evidence," the ALJ concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act. AR 14, 22.[4]

         Plaintiff then sought relief with the SSA's Appeals Council. AR 136. In January 2018, the Appeals Council found, among other things, no abuse of discretion by the ALJ, no error of law, and no lack of substantial evidence. AR 1. It therefore denied Plaintiffs request to review the ALJ's decision and affirmed that decision as the Commissioner's final decision. Id. Plaintiff timely petitioned this Court for relief in February 2018, alleging that he was "severely and irreparably disabled by multiple impairments" and that the Commissioner's final decision was erroneous. PL's Compl. 2-3, ECF 1.


         Plaintiff first claims that the ALJ erred by not performing a complete "function-by-function assessment" of Plaintiffs physical limitations pursuant to Social Security Ruling 96-8p. PL's Mot. 14-15. Second, Plaintiff asserts that the ALJ erred by assigning "diminished weight" to the opinion of Plaintiffs treating physician. Id. at 15. Third, Plaintiff contends that the ALJ erred by not "properly considering]" Plaintiffs testimony about his symptoms. Id. at 16. Finally, Plaintiff alleges that the ALJ erred by not "properly assess[ing]" his obesity. Id.


         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency[5] The Court's review of that final agency decision is both legal and factual. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) ("The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence." (citing Hamilton v. Sec 'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992))).

         In determining whether the correct legal standards were applied, the Court reviews "whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). The Court may reverse and remand if the ALJ failed to "apply correct legal standards" or "show ... Pie or she] has done so." Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)).

         The Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g) (emphasis added). Substantial evidence does not require a preponderance of evidence, but rather "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172). An ALJ's decision, however, "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." Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quoting Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988)).

         A court should meticulously review the entire record but should neither "reweigh the evidence nor substitute [its] judgment for that of the agency." Langley, 373 F.3d at 1118 (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); Hamlin, 365 F.3d at 1214. A court is to "review only the sufficiency of the evidence, not its weight." Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (emphasis in original). Therefore, "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Lax, 489 F.3d at 1084 (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). Consequently, a court "may not displace the agency'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." Id. (quoting Zoltanski, 372 F.3d at 1200) (brackets omitted).

         Ultimately, if the correct legal standards were applied and substantial evidence supports the ALJ's findings, the Commissioner's decision stands and Plaintiff is not entitled to relief. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214.

         B. 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).

         The SSA has devised a five-step sequential evaluation process to determine disability. See 20 C.F.R. § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). The claimant bears the burden of proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005); Williams v. Bowen, 844 F.2d 748, 750-51, 751 n.2 (10th Cir. 1988). In the first four steps, the claimant must show (1) that "he is not presently engaged in substantial gainful activity," (2) that "he has a medically severe impairment or combination of impairments," and either (3) that the impairment is equivalent to a listed impairment[6] or (4) that "the impairment or combination of impairments prevents him from performing his pastwork." Williams, 844 F.2d at 750-51; Grogan, 399 F.3d at 1261.

         If the claimant has advanced through step four, the burden of proof then shifts to the Commissioner to show that the claimant retains sufficient "residual functional capacity" ("RFC") "to perform other work in the national economy in view of his age, education, and work experience." Yuckert, 482 U.S. at 142, 146, n.5.


         In his February 2017 written decision, the ALJ affirmed that he "carefully reviewed the facts of [Plaintiff s] case," "all the evidence," and "the entire record" before him AR 11, 14, 16. In his "Findings of Fact and Conclusions of Law," the ALJ discussed the evidence and opinions that led to his decision. AR 16-22.

         A. Steps One through Three

         At step one, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since September 5, 2013, the alleged onset date of his disability. AR 16.[7] At step two, the ALJ found that Plaintiff had three severe impairments: type 2 diabetes, hypertension, and obesity. Id. In analyzing Plaintiffs gastroparesis, the ALJ found that the evidence showed no "consistent symptoms," such as weight loss, that corresponded to this condition. Id. Although Plaintiff testified, in response to the ALJ's questioning, that he had to lie down after eating "until [the food] goes down" so that he would not get sick, the ALJ nonetheless found that Plaintiffs gastroparesis was not severe because it caused no more than "a minimal limitation" of Plaintiff s ability "to do basic work activities." AR 16 (citing 20 C.F.R. § 404.1520(c)); AR 35. Likewise, the ALJ found that Plaintiffs alleged "joint and back pain" were not severe because the record contained no "diagnosis relating to joint pain or back pain, except as may be attributed to diabetes." AR 16-17.[8]

         At step three, the ALJ found that no impairment or combination thereof satisfied the criteria of a listed impairment. AR 17. He observed that neither diabetes, hypertension, nor obesity were classified under a specific listing. Id. Instead, following the established guidelines, he evaluated diabetes and hypertension through their effects on other "body systems" and found that they caused no "listing level severity" on Plaintiffs other body systems. Id. Similarly, in finding no listed impairment, the ALJ also affirmed that he made no "assumptions about the severity or functional effects of obesity"-but rather evaluated Plaintiffs obesity, particularly its effects on "other impairments," in the context of the overall "information in the case record." Id. (citing Social Security Ruling (SSR) 02-0 lp). He further stated that his evaluation of obesity under SSR 02-0lp included the application of internally-referenced guidelines, id. (citing 20 C.F.R, Subpt. P. App. 1, §§ l.OO(Q), 3.00(1), 4.00(F)), which assisted his evaluation of the "combined effects of obesity with musculoskeletal impairments" and the "cumulative effects of obesity" on the cardiovascular system §§ l.OO(Q), 4.00(F).

         B. Residual Functional Capacity

         Before performing the step four analysis, in which the ALJ considers whether a claimant can perform past work, the ALJ must first determine the claimant's RFC. 20 C.F.R. § 404.1520(a)(4) ("Before we go from step three to step four, we assess your residual functional capacity.").[9] Here, the ALJ found that Plaintiff could perform "light work," as defined in the regulations, with some additional limitations. AR 17-18. Specifically, the ALJ found that Plaintiffs RFC consisted of the following:

[Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except: he requires a sit/stand option, defined as a brief positional change from sitting to standing and vice versa with no more than one change in position every half hour and without leaving the work station so as not to diminish pace or production; he would be limited to frequent but not constant handling and fingering bilaterally; he would be unable to operate foot controls; he would be unable to climb ladders, ropes, or scaffolding; and he would need to avoid unprotected heights and dangerous moving machinery.

         AR 17-18. In making these findings, the ALJ affirmed that he considered "all symptoms and the extent to which these symptoms [could] reasonably be accepted as consistent with the objective medical evidence and other evidence" and further affirmed that he considered the opinion evidence. AR 18.

         The ALJ found that Plaintiffs "medically determinable impairments" could reasonably have caused the alleged symptoms. AR 19. He explained, however, that Plaintiffs "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record." Id. (emphasis added). As described below, the ALJ discussed in his RFC assessment the evidence supporting his findings. AR 17-20.

         1. Plaintiff's Alleged Symptoms and Limitations

         The ALJ first began his analysis by reviewing Plaintiffs claims regarding his own symptoms and limitations. AR 18. The ALJ initially noted that Plaintiff recorded his height as 6'l" and his weight as 330 pounds as part of his disability application. Id. The ALJ's review of Plaintiffs alleged symptoms included Plaintiffs assertions of (1) numbness in his hands, feet, and legs; (2) sensitive hands and, when not lying down, swollen feet; (3) fatigue, dizziness, and daily headaches; (4) pain, including in his back, nerves, and "all his joints;" and (5) "heart palpitations and shortness of breath." Id.

         The ALJ's review of Plaintiff s alleged limitations included Plaintiffs testimony that he (1) had to "He down half of the day due to pain and dizziness," (2) "could not grip things," (3) "had balance issues, particularly after standing or walking," (4) "could stand about half an hour," and (5) "could sit for an hour before needing to change positions due to back pain and numbness in his legs." AR 18, 33, 35, 38. He also noted Plaintiffs initial written assertions that his impairments affected his ability to "stand more than ten minutes" and "sit more than half an hour." AR18, 188.[10]

         After reviewing Plaintiffs symptoms and limitations, the ALJ noted that Plaintiff received unemployment benefits for approximately six months after he was "fired" from his last job. AR 18; see also supra, note 3 (Plaintiffs inability to recall holding himself out as "ready, willing, and able to return to work" in order to receive unemployment benefits).

         2. Objective Medical Evidence

         The ALJ discussed eight of Plaintiffs visits with his primary care physician, Michael Montoya, MD. AR 18, 274, 293. The ALJ first noted that in August 2013-less than one month before Plaintiffs alleged disability onset-Plaintiff reported to Dr. Montoya that he was "feel[ing] better overall." AR 18, 298. The ALJ observed that the result of Dr. Montoya's examination of Plaintiff on this date was overall normal, noting that Plaintiff had "no numbness or tingling," a normal gait, and no complications with his diabetes or hypertension. AR 18-19 (citing AR 298- 99). The ALJ then reviewed three of Plaintiff s visits with Dr. Montoya in 2014, [11] two in 2015, [12]and two visits in 2016, [13] all of which "generally showed little" or resulted in "unremarkable" findings. AR 19.

         The ALJ then discussed four of Plaintiff s visits with a cardiologist in 2016. AR 19. About Plaintiffs first visit, the ALJ noted that Plaintiff "denied any symptoms, such as headaches, shortness of breath, or chest pain" and that his examination "was unremarkable." Id. (citing AR 344-46). At subsequent visits, Plaintiff participated in an exercise stress test and was given a new prescription for hypertension. Id. (citing AR 342-43). In addition, the cardiologist observed that "symptomatically, [Plaintiff] was doing well, with no shortness of breath or chest pain, although he had heart palpitations." Id. (citing AR 333-35). He again classified the examination of Plaintiff as "unremarkable" and found that Plaintiff had "normal gait and intact sensation." Id. (citing AR 333-35).

         After discussing these eight visits with Dr. Montoya and four visits with a cardiologist- and after "careful consideration of the entire record"-the ALJ found that "[t]he record was devoid of any complaints or findings of numbness in [Plaintiff s] extremities." AR 17, 19. In addition, he found that "[w]hile the record did show diabetes mellitus and hypertension in various stages of control, the record typically noted [Plaintiff] was asymptomatic, and examinations generally showed little." AR 19 (emphasis added) (citing AR 298-301, 304-05, 315-16, 323-24, 327-28, 333-35, 339, 344-46, 349-51).

         The ALJ also reviewed the medical evidence of Plaintiffs obesity. AR 18-19. For example, he observed that Plaintiffs body mass index ("BMI") was 43 in late 2013 when he applied for disability benefits, given his reported height of 6'1" and weight of 360 pounds. AR 18 (citing AR 170). He also observed that Plaintiffs BMI was 43.9 in March 2014 and then approximately 46 in November 2016. AR 19 (citing AR 300, 352). The ALJ affirmed that he considered the record evidence in evaluating obesity's possible effects on other impairments, AR 17 (citing SSR 02-01p; 20 C.F.R, Subpt. P. App. 1, §§ l.OO(Q), 3.00(1), 4.00(F)), and that Plaintiffs obesity was indeed "supported by the record." AR 19 (citing AR 333-35, 351-52). Even considering this evidence of Plaintiffs obesity, the ALJ nevertheless found that "[i]n all, however, [Plaintiffs] alleged symptoms and limitations are not consistent with the objective medical evidence." Id.

         3. Opinion ...

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