Martinez v. Astrue

Filing 21

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT by Judge Paul S. Grewal denying 17 Motion for Summary Judgment (psglc2, COURT STAFF) (Filed on 2/25/2013)

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10

UNITED STATES DISTRICT COURT

11
NORTHERN DISTRICT OF CALIFORNIA

12

SAN JOSE DIVISION

13
14
15
16
17
18
19
20
21

)
)
)
Plaintiff,
)
v.
)
MICHAEL J. ASTRUE, Commissioner of Social )
)
Security
)
)
Defendant.
)
SANTIAGO MARTINEZ,

Case No.: C 11-5006 PSG
ORDER DENYING PLAINTIFF
SANTIAGO MARTINEZ’S MOTION
FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT MICHAEL
J. ASTRUE’S MOTION FOR
SUMMARY JUDGMENT
(Re: Docket Nos. 17, 19, 20)

Plaintiff Santiago Martinez (“Martinez”) filed this action on March 2, 2012 pursuant to
42 U.S.C § 405(g), appealing the decision by the Commissioner of Social Security

22
(“Commissioner”) denying him Social Security insurance benefits. Martinez now moves for
23
24

summary judgment. The Commissioner opposes the motion and cross-moves for summary

25

judgment. The matter was submitted without oral argument pursuant to Civ. L.R. 16-5. Having

26

reviewed the papers and considered the arguments presented therein, the court DENIES Martinez’s

27
28
1
Case No.: 11-5006 PSG
ORDER

1
2

motion for summary judgment and GRANTS the Commissioner’s cross-motion for summary
judgment.
I. BACKGROUND

3
4
5
6
7
8

The following facts are taken from the February 10, 2010 decision by the Administrative
Law Judge (“ALJ”) and the accompanying administrative record (“AR”). Martinez was born June
7, 1951,1 and has a high school education.2 He worked for a construction remodeling company
from September 2005 until August 2006.3
In 2004, Martinez filed an application for Supplemental Security Income (“SSI”) benefits4

9

United States District Court
For the Northern District of California

10

alleging disability since February 2001, which ultimately was denied.5 On September 8, 2006,

11

Martinez filed a new application for SSI benefits, again alleging disability since February 2001.6

12

The agency denied Martinez’s September 2006 application initially and on reconsideration.7

13

Martinez requested a hearing which an ALJ convened on October 3, 2008.8 In a decision dated

14

February 24, 2009, the ALJ determined that Martinez was not disabled.9

15
Martinez appealed the ALJ’s decision and the Appeals Council (“AC”) remanded the case

16
17

with four instructions: (1) to evaluate Martinez’s subjective complaints pursuant to
1

See AR at 25.

19

2

See id.

20

3

See id. at 183, 315.

21

4

18

22

Title XVI of the Social Security Act provides for payment of SSI benefits to qualifying
individuals. Unlike Title II Social Security Disability Insurance, in determining SSI benefits, there
is no need to determine a claimant’s last insured date.

23

5

See id. at 17.

24

6

See id. at 168-74.

7

See id at 99-103, 107-11.

8

See id. at 33.

9

See id. at 94.

25
26
27
28

2
Case No.: 11-5006 PSG
ORDER

1

20 C.F.R. § 416.929; (2) to evaluate the other opinions on the record in accordance with

2

20 C.F.R. § 416.913(d); (3) to give further consideration to Martinez’s maximum residual

3

functional capacity (“RFC”);10 and (4) to obtain vocational expert (“VE”) testimony to clarify the

4

effect of Martinez’s assessed limitations on the availability of a job.11 The ALJ convened a second

5

hearing on November 12, 2009, at which Martinez and a VE testified.12 On February 10, 2010, the

6
7
8
9

United States District Court
For the Northern District of California

10

ALJ issued his second decision, finding Martinez not disabled since September 8, 2006, which is
the date he applied for SSI benefits.13 On August 12, 2011, the AC denied further review, making
the ALJ’s decision the final determination.14
A.

The AR contains medical records dating back to 2005,15 but records supporting Martinez’s

11
12
13
14

Medical Evidence

claims originate in 2006. In 2006 and 2007, Martinez saw a number of doctors for a host of
complaints, including asthma, chest pain, back pain, foot pain, knee pain, hip pain, groin pain, and
numbness in his feet.16

15
On November 30, 2006, Dr. Clark Gable (“Gable”), an independently retained Social

16
17

Security Administration (“SSA”) program consultant, examined Martinez.17 Based on the physical

18

examination, Gable concluded that Martinez had low back pain, possibly due to osteoarthritis.

19

10

20

A claimant’s RFC is what he or she can still do despite existing exertional and nonexertional
limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).

21

11

See AR at 97.

22

12

See id. at 50-81.

23

13

See id. at 18-26.

24

14

See id. at 1.

15

See id. at 272. The only evidence from 2005 is a blood test showing high cholesterol. See id.

16

See id. at 264-301, 320-44.

17

See id. at 302.

25
26
27
28

3
Case No.: 11-5006 PSG
ORDER

1

Gable acknowledged Martinez’s complaints of hip pain but noted that the range of motion in

2

Martinez’s hips appeared normal and that he could walk normally.18 Gable opined that Martinez

3

could sit for up to 6 hours a day with frequent breaks and could lift 25 pounds frequently and 50

4

pounds occasionally.19

5
6

In December 2006, SSA consultant Dr. W.G. Jackson (“Jackson”) examined Martinez’s
records.20 Based on the objective medical evidence in Martinez’s record, Jackson concluded that

7
8
9

Martinez’s asthma was under control through the use of inhalers and that his back pain was likely
due to arthritis.21
On January 11, 2007, x-rays showed calcium in both of Martinez’s lower extremities.22 On

United States District Court
For the Northern District of California

10
11

February 21, 2007, an MRI of the right knee showed mild joint effusion and synovitis associated

12

with degeneration of the meniscus.23 On March 1, 2007, Dr. Constance Lo (“Lo”), Martinez’s

13
14

treating physician, characterized Martinez’s knee condition as chronic right knee pain involving
degeneration of the meniscus without a tear.24

15
On December 26, 2007 an MRI of the lumbar (“’07 lumbar MRI”) showed multilevel

16
17

broad-based disc bulge and facet hypertrophy, mild to moderate neural foraminal stenosis, and

18
19
20
21

18

See id.

22

19

See id.

23

20

See id. at 315-17.

24

21

See id. at 317.

22

See id. at 325-26.

23

See id. at 318-19.

24

See id. at 331.

25
26
27
28

4
Case No.: 11-5006 PSG
ORDER

1
2

some decreased disc height.25 Upon physical examination, Lo reported normal appearance and
function with the exception of some decreased sensation and vibration in the left leg.26
Conservative treatment with exercise, physical therapy, and pain medication appears to

3
4

have provided relief of Martinez’s impairments and pain.27 On December 6, 2007, for example, Lo

5

noted that physical therapy seemed to improve Martinez’s back pain.28 Martinez also showed

6

improved range of motion, decreased pain, and improved balance and walking ability.29

7

In March 2008, Martinez reported no left knee pain,30 and by April 2008, Martinez reported

8
9

United States District Court
For the Northern District of California

10

the ability to sit for 30 minutes, to stand for 20-30 minutes and to walk for 8 blocks.31 On August
18, 2008, his physical therapist reported 90% normal left knee flexion.32

11

On October 10, 2008, after continued complaints of left knee pain, Dr. Steven Yoshioka

12

(“Yoshioka”) ordered x-rays and an MRI of Martinez’s left knee.33 Yoshioka’s physical evaluation

13

of Martinez did not show any deterioration in his condition.34 The x-rays taken that same day

14

showed slight degenerative change, calcification and a large effusion in Martinez’s left knee.35 The

15
16
17

25

See id. at 356.

18

26

See id. at 333.

27

See id. at 277, 279, 283, 285, 289, 291, 334, 336, 339-41, and 358.

28

See id. at 358-60.

29

See id. at 360-69.

30

See id. at 363-64.

31

See id. at 361.

32

See id. at 365.

33

See id. at 457-58.

27

34

See id. at 422.

28

35

See id. at 421-22.

19
20
21
22
23
24
25
26

5
Case No.: 11-5006 PSG
ORDER

1
2

MRI of Martinez’s left knee, taken on October 16, 2008 (“the ‘08 MRI”), showed deterioration that
the radiologist characterized as a “tear of the meniscus.” 36
In May 2009, Martinez reported worsening of lower extremity pain to his physical

3
4

therapist,37 but examination of the left knee showed normal walking ability and no significant

5

abnormalities.38

6
7
8
9

United States District Court
For the Northern District of California

10

In November 2009, Martinez complained of numbness in his legs and Lo ordered a nerve
conduction test comprised of ENG and EMG tests.39 The ENG test showed “possible peripheral
polyneuropathy in the lower extremities secondary to prior alcohol use” and the EMG test showed
“completely normal findings in the left lower extremity which is the more symptomatic side.”40

11

On December 8, 2009, Lo filled out a physical RFC questionnaire.41 In the questionnaire,

12

Lo noted that the ’08 MRI showed a complex tear of the left knee meniscus. Lo did not respond to

13
14

any questions related to Martinez’s functional limitations and instead wrote “unable to assess” next
to all of the limitation questions.42

15
16

B.

At the second hearing the VE testified that in light of Martinez’s limitations, he could only

17
18

Vocational Expert Testimony

perform one-third to one-half of the 442,507 nationally available jobs in the medium work

19
20

36

See id. at 456.

21

37

See, e.g., id. at 435, 437.

22

38

See id. at 435, 448.

23

39

See id. at 483.

24

40

See id.

25

41

See id. at 489–93.

26
27
28

42

Id. Lo submitted a letter explaining that she could not opine on Martinez’s physical limitations
since such an “evaluation is not done by any of the physicians in our department, as we are not
qualified to do this type of extensive and detailed functional evaluation.” Id. at 354.
6
Case No.: 11-5006 PSG
ORDER

1

category.43 As examples of medium category jobs Martinez could perform, the VE testified that

2

Martinez could perform jobs as a driver’s helper or a meat clerk and that there were 74,000 and

3

113,000 nationally available jobs, respectively. The VE also testified that there were 170 local

4

driver’s helper positions and 613 local meat clerk jobs available.44

5

C.

6
7
8

ALJ’s 2010 Findings
At the first step of the traditional five-step disability analysis, the ALJ found Martinez had

not engaged in substantial gainful activity since his application date of September 8, 2006.45
At step two, the ALJ found that Martinez had severe impairments consisting of

9

United States District Court
For the Northern District of California

10

degenerative disease of the spine, slight degeneration of the left knee meniscus, and asthma

11

because those impairments “more than minimally affect the claimant’s basic work activities.”46

12

The ALJ concluded that Martinez’s allegations of impairments and pain other than that associated

13
14

with degenerative disease of the spine, slight degeneration of the knee meniscus, and asthma
“[we]re not supported by the record.”47

15
At step three, the ALJ found Martinez’s impairments did not meet or medically equal any

16
17

of the qualifying impairments.48 The ALJ based his opinion on the fact that “the medical evidence

18

does not reflect the severity of condition . . . nor the functional incapacity anticipated under the

19

listings.”49 Moreover, “the record does not show that [Martinez] cannot ambulate or perform fine

20
21

43

See id. at 73-81.

22

44

See id. at 77-8.

23

45

See id. at 19.

24

46

Id. at 22.

47

Id. at 20.

48

See id. at 22.

49

Id.

25
26
27
28

7
Case No.: 11-5006 PSG
ORDER

1

or gross movements.”50 The ALJ noted that “with these conditions involving the claimant’s spine

2

and lower extremities . . . the record shows physical examinations which are normal in appearance

3

and function with the exception of some decreased sensation and vibration of the left extremity

4

noted by the treating physician.”51

5
6
7
8
9

At step four, the ALJ determined that Martinez had the RFC to perform medium work
“except he is able to occasionally perform stooping and climbing and must avoid moderate
exposure to fumes, gases, dust, and poor ventilation.”52 In arriving at this RFC determination, the
ALJ summarized the various opinions regarding Martinez’s limitations and explained that he

United States District Court
For the Northern District of California

10

“mainly relied upon the opinions of the program consultants in deciding the RFC because they are

11

consistent with and supported by the record.”53 The ALJ did not rely upon Lo’s opinion as to

12

Martinez’s limitations since “[Lo] did not present any such limitations.”54

13

The ALJ additionally found Martinez’s testimony regarding the “intensity, persistence, and

14
limiting effects of [his] symptoms [] not credible to the extent they [we]re inconsistent with” his
15
16
17

RFC determination.55 The ALJ noted that the record is “bereft of any reference whatsoever to the
claimant not being able walk (sic) with the [alleged] limitations.”56 “The record reflects a different

18
19
20
21

50

Id.

22

51

Id. at 20.

23

52

Id. at 23.

24

53

See id. at 24

54

See id.

55

See id. at 23.

56

Id. at 24.

25
26
27
28

8
Case No.: 11-5006 PSG
ORDER

1
2

situation than is presented by [Martinez] . . . and raises an issue concerning his reliability in
reporting the effects of his condition on his activities.”57
At step five, the ALJ determined that based on the RFC finding and the testimony of the

3
4

VE, Martinez was “capable of making a successful adjustment to other work that exists in

5

significant numbers in the national economy.”58 The ALJ thus concluded that Martinez was not

6

disabled “since September 8, 2006, the date the application was filed” and issued his decision.59

7
II. LEGAL STANDARDS

8
9

A.

Pursuant to 42 U.S.C. § 405(g), this court has the authority to review the Commissioner’s

10
United States District Court
For the Northern District of California

Standard for Reviewing the Commissioner’s Decision

11

decision denying Martinez benefits. The Commissioner’s decision (here the underlying decision of

12

the ALJ) will be disturbed only if it is not supported by substantial evidence or if it is based upon

13

the application of improper legal standards.60 In this context, the term “substantial evidence”

14
means “more than a scintilla but less than a preponderance – it is such relevant evidence a
15
16

reasonable mind might accept as adequate to support the conclusion.”61 When determining

17

whether substantial evidence exists to support the administrative record as a whole, the court must

18

consider adverse as well as supporting evidence.62 Where evidence exists to support more than one

19

rational interpretation, the court must defer to the decision of the ALJ.63 “If additional proceedings

20
57

Id.

58

See id. at 26.

23

59

See id. at 14-26.

24

60

21
22

25

See Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255,
1257 (9th Cir. 1992).
61

See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1257.

62

See Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).

63

See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.

26
27
28

9
Case No.: 11-5006 PSG
ORDER

1

can remedy defects in the original administrative proceedings, a social security case should be

2

remanded.”64

3

B.

4
5
6

Standard for Determining Disability
Disability claims are evaluated using a five-step, sequential evaluation process. In the first

step, the Commissioner must determine whether the claimant currently is engaged in substantial
gainful activity; if so, the claimant is not disabled and the claim is denied.65 If the claimant is not

7
8
9

currently engaged in substantial gainful activity, the second step requires the Commissioner to
determine whether the claimant has a “severe” impairment or combination of impairments that

United States District Court
For the Northern District of California

10

significantly limits the claimant’s ability to do basic work activities; if not, a finding of “not

11

disabled” is made and the claim is denied.66 If the claimant has a “severe” impairment or

12

combination of impairments, the third step requires the Commissioner to determine whether the

13
14

impairment or combination of impairments meets or equals an impairment in the Listing; if so,
disability is presumed and benefits are awarded.67 If the claimant’s impairment or combination of

15
16

impairments does not meet or equal an impairment in the Listing, the fourth step requires the

17

Commissioner to determine claimant’s RFC and whether claimant’s RFC is sufficient to perform

18

his or her past work; if so, the claimant is not disabled and the claim is denied.68 The plaintiff has

19

the burden of proving that he or she is unable to perform past relevant work.69 If the claimant

20

meets this burden, a prima facie case of disability is established. The Commissioner then bears the

21
22

64

Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981).

23

65

See id.

24

66

See id.

67

See id.

68

See Drouin, 966 F.2d at 1257; Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

69

See id.

25
26
27
28

10
Case No.: 11-5006 PSG
ORDER

1
2

burden of establishing that the claimant can perform other substantial gainful work;70 the
determination of this issue comprises the fifth and final step in the sequential analysis.
III.

3
4
5
6

DISCUSSION

Martinez argues that the ALJ erred in finding him not disabled for three reasons: (1) the
ALJ failed to properly evaluate the medical evidence in the record; (2) the ALJ failed to include all
of Martinez’s impairments in the RFC analysis; and (3) the ALJ’s vocational findings are not

7
8

supported by substantial evidence.
The Commissioner responds that: (1) substantial evidence supports the ALJ’s determination

9

United States District Court
For the Northern District of California

10

that Martinez was not disabled; (2) the ALJ properly evaluated all of Martinez’s medically

11

determinable impairments in his RFC determination; and (3) the ALJ properly relied on VE

12

testimony regarding vocational findings.

13

A.

Evaluation of the Medical Evidence

14
1.

Torn Meniscus

15
Martinez argues that the ALJ’s RFC findings are not supported by substantial evidence

16
17

because the ALJ’s statement that “the record as discussed above does not reflect MRI findings

18

which show a meniscus tear” conflicts with the 2008 MRI showing a “[c]omplex tear of the medial

19

meniscus involving the body and posterior horn.”71 The Commissioner notes that despite any

20

error, the ALJ’s RFC determination is supported by substantial evidence because Martinez was

21
22

able to work prior to the MRI and his medical records after the MRI show improvement and
minimal knee pain.72

23
24
25
26
27
28

70

There are two ways for the Commissioner to meet the burden of showing that there is work in
significant numbers in the national economy that claimant can perform: (1) by the testimony of a
vocational expert; or (2) by reference to the Medical-Vocational Guidelines. See Tackett v. Apfel,
180 F.3d 1094, 1099 (9th Cir. 1999).

71

See Docket No. 17 at 4.

72

See Docket No. 19 at 5-6.
11

Case No.: 11-5006 PSG
ORDER

In determining a claimant’s RFC, the ALJ must consider all symptoms and the extent to

1
2

which they can reasonably be accepted as consistent with all the evidence.73 If the ALJ’s RFC

3

determination is supported by substantial evidence, his decision must be upheld.74

4
5
6
7
8
9

To the extent that Martinez argues that the ALJ made a mistake, the court agrees. The ALJ
cites Exhibit 14F75 in support of his statement that the 2008 MRI “results showed ‘slight’
degenerative change, vascular calcification, and a large effusion.” While page one of Exhibit 14F
is from the body of the MRI report, page two of the exhibit shows the results of the 2008 x-rays.76
Exhibit 14F does not include the results of the 2008 MRI report.77
To the extent that Martinez argues that due to this error, the ALJ’s RFC findings are not

United States District Court
For the Northern District of California

10
11

supported by substantial evidence, Martinez’s argument fails. The ALJ made an express

12

determination that Martinez was not credible with respect to his reports of knee pain.78 The ALJ

13
14

noted that Martinez reported no left knee pain in March 2008 and, in August 2008, left knee
flexion was 90% normal.79 October 2008 is the first and only time that any medical evidence

15
16

indicates a torn meniscus. The ALJ additionally considered evidence from 2009 – after the 2008

17
18
19

73

20

See 20 C.F.R. § 416.929; see also SSR 96-4p, 1996 WL 374187 (Jul. 2, 1996); id. at 96-7p, 1996
WL 374186 (Jul. 2, 1996).

21

74

See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1257.

22

75

See AR at 20.

23

76

24
25

See id. at 421-22. It appears that this error was not the ALJ’s fault – he considered the exhibits in
the order they were presented to him. It appears that whoever compiled the records combined the
body of the 2008 x-ray report with the findings of the 2008 MRI.
77

See AR at 20.

78

See id. at 23.

79

See id. at 21 (citing Exhibit 15F at 5, 8, 11).

26
27
28

12
Case No.: 11-5006 PSG
ORDER

1
2

MRI – which shows that Martinez’s left knee had improved, with “no significant abnormalities as
well as a normal gait and stability.”80

3

Although there is some evidence indicating Martinez suffered from a torn meniscus,

4

substantial evidence supports the ALJ’s findings that Martinez nevertheless had the RFC to

5

perform medium work during the time between the filing of his SSI application in September

6

200681 and when the ALJ issued his second determination in February 2010. The court must defer

7
8

to an ALJ’s determination that is supported by substantial evidence.
2.

9

Martinez argues that the ALJ erred by rejecting Lo’s opinion as reported in the RFC

United States District Court
For the Northern District of California

10
11

questionnaire dated December 8, 200982 because she was his treating physician.

12
13
14

Dr. Lo’s Medical Opinion

An ALJ is not required to give controlling weight to a treating physician’s opinion unless it
is well-supported and consistent with other substantial evidence in the record.83 An ALJ must
“give good reasons” for the weight given to a treating physician’s opinion,”84 but “may disregard

15
16
17
80

18

See id.

81

19
20
21
22
23
24
25

Even though Martinez alleges disability since 2001, the ALJ properly used the September 2006
application date to begin the disability analysis. First, Martinez was gainfully employed from
September 2005 through August 2006 and was therefore not disabled within the meaning of the
SSA. Furthermore, “under Title XVI, there is no retroactivity of payment. [SSI] payments are
prorated for the first month for which eligibility is established after application. . .” SSR 83-20,
1983 WL 31249 (1983).
Because the ALJ determined that Martinez was not disabled at any time between September 2006
and February 2010, there is no requirement that the ALJ determine an onset date. See id. (“[t]he
only time a specific date of onset must be determined for SSI claims is when the onset is
subsequent to the date of filing.”).
See AR at 489-93.

83

20 C.F.R. § 416.927(d)(2); see also Halohan v. Massinari, 246 F.3d 1195, 1202 (9th Cir. 2001).

84

26

82

20 C.F.R. § 405.1572.

27
28

13
Case No.: 11-5006 PSG
ORDER

III.

1
2

CONCLUSION

Martinez’s motion for summary judgment is DENIED and the Commissioner’s cross-

3

motion for summary judgment is GRANTED. The clerk shall close the file.

4

IT IS SO ORDERED.

5
6

Dated: February 25, 2013
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(50-67% of 500 regional jobs, i.e., 250 to 333); cf. Beltran, 700 F.3d 386 (135 regional and 1,680
national jobs did not constitute substantial evidence of significant numbers).
The court does not reach the question of whether 783 regional jobs alone provide substantial
evidence of “significant numbers” of available jobs.
19
Case No.: 11-5006 PSG
ORDER