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Martinez v. Berryhill

United States District Court, D. Colorado

March 23, 2017

NANCY BERRYHILL, Acting Commissioner of SSA, [1]Defendant.


          Nina Y. Wang United States Magistrate Judge

         This civil action comes before the court pursuant to Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 for review of the Acting Commissioner of Social Security's final decision denying the application for Disability Insurance Benefits (“DIB”) of Plaintiff Christine Martinez (“Plaintiff” or “Ms. Martinez”). Pursuant to the Order of Reference dated September 27, 2016 [#23], this civil action was referred to the Magistrate Judge for a decision on the merits. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. The court has carefully considered the Complaint filed March 22, 2016 [#1], Plaintiff's Opening Brief filed August 22, 2016 [#18], Defendant's Response Brief filed September 12, 2016 [#22], Plaintiff's Reply Brief filed September 30, 2016 [#24], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully REVERSE and REMAND the Commissioner's decision.


         In September 2012, Ms. Martinez, proceeding pro se, filed a Title II application for DIB.[2]Ms. Martinez finished high school and attended college but did not graduate. [#12-2 at 36].[3]She was honorably discharged from the United States Air Force in April 1994. [Id. at 36]. While enlisted, she worked in airfield management, “which is similar to air traffic control.” [Id. at 36-37]. Afterward, she worked as a customer service representative for the Internal Revenue Service, a temporary day laborer, a server at a restaurant, and she pursued a civilian Air Force position as an airfield operation specialist. [Id. at 37-40]. Ms. Martinez alleged in the application that she became disabled on June 24, 2012, at the age of forty-three, while working as a forklift operator. [Id. at 37, 41]. She had taken the forklift operator position on a temporary basis while she waited to deploy with the Air Force as an airfield operation specialist. [Id. at 42]. She was ultimately unable to deploy due to her injury. [Id.]. Ms. Martinez suffers from a neck injury and pinched nerve, which causes her radiating nerve pain referred to in the record as radiculopathy.[4] Administrative Law Judge Patricia Hartman (“ALJ”) denied Ms. Martinez's application after an administrative hearing held September 10, 2014, at which Plaintiff was represented by counsel. [#12-2 at 14-24, 29-55].

         During the hearing, Ms. Martinez testified that she has eschewed narcotic pain medicine since February 2013 and was currently taking a muscle relaxer once a day to help reduce muscle contractions and spasms. She takes Tylenol and napoxen for her pain. [#12-2 at 43]. She testified that the medication causes her drowsiness and fatigue. She also testified that lifting weight, such as groceries or laundry, and cleaning exacerbate her pain, and that the pain in general does not subside, “[i]t's just a matter of the contractions being reduced.” [Id. at 45]. Ms. Martinez stated that on a scale of 1 to 10, with 10 “being pain so severe” she would visit the emergency room, her pain rates at 6 or 7 every day. [Id.] In response to the ALJ's questions, Ms. Martinez represented that she can typically sit for an hour, but she can stand for only a few minutes and, according to her doctor, is not supposed to walk beyond 200 feet. [Id. at 46]. She testified that she cannot carry anything with her left arm, which suffers from a pinched nerve and loss of muscle strength, but can carry twenty-five pounds of weight with her right arm. [Id.]. She explained that her doctor had diagnosed her with radiculopathy, “indicating that there are nerves coming out of my head and going into my shoulder across my back that are being pinched because the C-5 and C-6 disk in my cervical vertebra is dislocated.” [Id. at 47].

         Ms. Martinez also testified that in a typical day she spends time with her eleven and twelve year-old sons, “see[s] that they're fed, clothed, ” and stays home because she cannot work. [#12-2 at 47]. While she tries not to sleep during the day, she takes a two-hour nap, two or three times a week. She has difficulty sleeping at night because of the pressure on her shoulder, which requires her to lie on her right side. [Id.] She can shower, but needs help dressing at times. She fixes meals, washes dishes, vacuums, processes laundry, pays bills, attends church on Sundays, shops for groceries once or twice a month, and eats out at a restaurant three to four times a month. [Id. at 48-49]. Ms. Martinez testified that she spends two to three hours on the computer a day, responding to emails, corresponding with her mother, and using social media. Prior to her injury, she swam, rode horses, bicycled, and was otherwise active. [Id. at 50].

         The Vocational Expert (“VE”), Pat Paulini, also testified during the hearing. The ALJ queried whether the following individual could perform any of Plaintiff's previous jobs: a person who is restricted to medium work, who can only occasionally reach overhead with the upper left extremity, can frequently handle, finger, and feel with the upper left extremity, who cannot climb ladders or scaffolds, and who cannot work at unprotected heights or with dangerous unprotected machinery or vibrating tools. [#12-2 at 52]. The VE testified that such a person could perform all of Plaintiff's previous jobs. [Id.] The VE also testified that such a person could perform work as a cashier and a counter clerk. [Id.] In response to the ALJ further restricting the hypothetical individual to sedentary work, the VE testified that such a person could perform in the position of a telephone quotation clerk and charge account clerk. [Id. at 53]. Plaintiff's attorney then asked the VE to limit the hypothetical individual to light exertional work with the restriction of only occasional reaching, handling, and fingering with the upper left extremity, which is the individual's dominant upper extremity. The VE testified that such an individual could not perform Plaintiff's previous work positions, but could work as a counter clerk or a surveillance system monitor. [Id.]

         The ALJ issued her written decision on September 10, 2014, concluding that Ms. Martinez was not disabled. [#12-2 at 14-24]. Plaintiff requested a review of the ALJ's decision, which the Appeals Counsel denied on January 19, 2016. [#12-2 at 1]. The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on March 22, 2015. This court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). The court may not reverse an ALJ simply because she may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). Moreover, the court “may neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001), as amended on denial of reh'g (April 5, 2002). See also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.”) (internal quotation marks and citation omitted). However, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The court will not “reweigh the evidence or retry the case, ” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070 (internal citation omitted). “[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (internal citation omitted). The court liberally construes Ms. Martinez's briefs because she is proceeding pro se. Wilson v. Astrue, 249 F. App'x 1, 5 (10th Cir. 2007) (citations omitted).


         A. Ms. Martinez's Challenge to the ALJ's Decision

         An individual is eligible for DIB benefits under the Act if she is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). An individual is determined to be under a disability only if [her] “physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy….” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove she was disabled prior to her date last insured. Flaherty, 515 F.3d at 1069.

         The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). Step one determines whether the claimant is engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers “whether the claimant has a medically severe impairment or combination of impairments, ” as governed by the Secretary's severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity, ” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity (“RFC”), which defines what the claimant is still “functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability.” Williams, 844 F.2d at 751. The ALJ compares the RFC to the claimant's past relevant work to determine whether the claimant can resume such work. See Barnes v. Colvin, 614 F. App'x 940, 943 (10th Cir. 2015) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (internal quotation marks omitted)). “The claimant bears the burden of proof through step four of the analysis.” Neilson, 992 F.2d at 1120.

         At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account the claimant's RFC, age, education, and work experience.[5] Neilson, 992 F.2d at 1120. The Commissioner can meet his or her burden by the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098-1099, 1101 (9th Cir. 1999).

         The ALJ first determined that Ms. Martinez was insured for DIB through December 31, 2015. [#12-2 at 16]. Next, following the five-step evaluation process, the ALJ determined that Ms. Martinez: (1) had not engaged in substantial gainful activity since June 24, 2012; (2) had severe impairments of “obesity and C5-6 radiculopathy due to moderate to severe neuroforaminal stenosis”; and (3) did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). [#12-2 at 16-17]. At step four, the ALJ first found that Plaintiff had an RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b). The ALJ specified as follows: “[Ms. Martinez] can occasionally reach overhead with her left upper extremity. She can frequently handle, finger, and feel with the left upper extremity. She cannot climb ladders or scaffolds or work at unprotected heights or with dangerous unprotected machinery or vibrating tools.” [#12-2 at 17]. The ALJ determined, after reviewing the medical evidence, that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded, after reviewing Plaintiff's reports of daily living, that statements regarding the intensity, persistence, and limiting effects of the symptoms were not “entirely credible.” [Id. at 19]. Ultimately, the ALJ found that, “although the claimant injured her neck and left arm in June 2012, she recovered well with the use of medication and physical therapy.” [Id. at 22].

         In conclusion, the ALJ determined that Ms. Martinez “retains the residual functional capacity for a wide range of medium work, ” [#12-2 at 23], and relied on the VE's testimony to find that Ms. Martinez was capable of performing her past relevant work as an airfield management specialist, which is defined by The Dictionary of Occupational Titles as a light, skilled position, and as a server, which is defined as a light, semiskilled occupation. [Id. at 22]. The ALJ also determined that other jobs ...

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