Martinez v. Astrue

Filing 15

ORDER AFFIRMING COMMISSIONER. The conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is affirmed. By Judge Robert E. Blackburn on 3/26/13. (mnfsl, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-02869-REB
ROGER MANUEL MARTINEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed November 4, 2011,
seeking review of the Commissioner’s decision denying plaintiff’s claims for disability
insurance benefits and supplemental security income benefits under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the
Commissioner’s final decision under 42 U.S.C. § 405(g). The matter has been fully
briefed, obviating the need for oral argument. I affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of neuropathic pain of his right
hand, status post-amputation of the fourth and fifth fingers, and associated depression.
After his applications for disability insurance benefits and supplemental security income
benefits were denied, plaintiff requested a hearing before an administrative law judge.
1

“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.

This hearing was held on May 19, 2010. At the time of the hearing, plaintiff was 44
years old. He has an 11th grade education and past relevant work experience as meat
packer, mechanic, construction laborer, and lubrication technician. He has not engaged
in substantial gainful activity since December 15, 2006.
The ALJ found that plaintiff was not disabled and therefore not entitled to
disability insurance benefits or supplemental security income benefits. Although the
medical evidence established that plaintiff suffered from severe impairments, the judge
concluded that the severity of those impairments did not meet or equal any impairment
listed in the social security regulations. The ALJ found that plaintiff had the residual
functional capacity for simple, unskilled work involving no more than one- to three-step
instructions and requiring that plaintiff lift no more than ten pounds occasionally, using
the right hand only to assist. Although these limitations precluded plaintiff’s past
relevant work, the ALJ concluded that there were other jobs existing in significant
numbers in the national and local economies that were within his residual functional
capacity. She therefore found plaintiff not disabled at step five of the sequential
evaluation. Plaintiff appealed this decision to the Appeals Council. The Council
affirmed. Plaintiff then filed this action in federal court.
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
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impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.

The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.

2.

The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.

3.

The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.

4.

If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.

5.

If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.

20 C.F.R. §§ 404.1520(b)-(f) & 416.920(b)-(f). See also Williams v. Bowen 844 F.2d

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748, 750-52 (10th Cir. 1988). The claimant has the initial burden of establishing a
disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146
n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the
Commissioner to show that the claimant is capable of performing work in the national
economy. Id. A finding that the claimant is disabled or not disabled at any point in the
five-step review is conclusive and terminates the analysis. Casias v. Secretary of
Health & Human Services, 933 F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence 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). Further, “if 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).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.

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III. LEGAL ANALYSIS
Plaintiff alleges numerous errors in the ALJ’s assessment of the various medical
source opinions of record, her determination of plaintiff’s residual functional capacity,
and her conclusion that plaintiff’s own testimony was less than fully credible. Although I
agree that the ALJ’s opinion ideally would have included a more thorough analysis of
the reasons for her determination, I find no error sufficient to warrant reversal and
therefore affirm.
Plaintiff’s fourth and fifth fingers of his right hand were amputated following a car
accident when he was 18 years old. Nevertheless, the loss of these digits apparently
did not affect plaintiff’s ability to work until more recently, when he began experiencing
increasing pain and loss of grip strength and functionality of his right hand. (See Tr.
261.) The pain and associated loss of function became particularly acute after plaintiff
struck the third finger of that hand against something in 2008. (Tr. 272.) Plaintiff
testified at the hearing that he now has little strength in his right hand and that his
middle finger “doesn’t even bend anymore [sic] at all.” (Tr. 24-25.)
Plaintiff first argues that the ALJ erred in failing to articulate reasons for
apparently rejecting the opinions of plaintiff’s treating source, Dr. Richard King, and a
consultative examiner, Dr. Robert Williams, that plaintiff could not lift any amount of
weight with his right hand. Plaintiff points out what appears to be a disconnect between
the ALJ’s purported assignment of “great weight” to these source opinions (see Tr. 16)
and her conclusion that plaintiff’s residual functional capacity included the ability to use
his right hand as an assist when lifting (Tr. 14).

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The opinion of a treating source is entitled to controlling weight when it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record” and cannot be
rejected absent good cause for specific and legitimate reasons clearly articulated in the
hearing decision. 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2); see also Watkins v.
Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003). Good cause may be found when a
treating source opinion is brief, conclusory, or unsupported by the medical evidence.
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987). Even if a treating source opinion is
not given controlling weight, it is still entitled to deference “and must be weighed using
all of the factors provided in 20 C.F.R. 404.1527 and 416.927.” Social Security Ruling
96-2p, 1996 WL 374188 at *4 (SSA July 2, 1996). See also Langley v. Barnhart, 373
F.3d 1116, 1119 (10th Cir. 2004).2
The ALJ noted accurately that both Drs. King and Williams stated that plaintiff
could not lift with his right hand. Nevertheless, her residual functional capacity
assessment provided that plaintiff could use his right hand “as an assist” to the left in
lifting ten pounds or less. Although this determination was not fully explained, it is
adequately supported by the record. Although Dr. King’s lifting restriction was

2

These factors include:
1.
2.
3.
4.
5.
6.

the physician’s length of treatment of the claimant;
the physician’s frequency of examination;
the nature and extent of the treatment relationship;
the support of the physician’s opinion afforded by the medical evidence of
record;
the consistency of the opinion with the record as a whole; and
the specialization of the treating physician.

20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2).

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unqualified, he also classified plaintiff’s pain as “moderate,” rather than “marked” or
“extreme” (Tr. 266), a conclusion that does not square with a total restriction on use of
the right hand. Moreover, Dr. King claimed that plaintiff’s impairments had been at that
level of severity for “over 20 years” (Tr. 267), a time period that encompassed much of
his working life. This too renders his opinion more qualified than it might at first appear.
See 20 C.F.R. § 404.1520(b).
For his part, Dr. Williams suggested that while he did “not recommend that
[plaintiff] be using that right hand for anything at this point due to the amount of pain it
causes him and the obvious lack of function of the hand on exam” (Tr. 305), plaintiff
could use his right hand to lift ten pounds or less “for daily activities and hygiene” (Tr.
290). In a separate form setting forth plaintiff’s functional abilities, Dr. Williams further
noted that “[i]t is not safe for claimant to be lifting more than 10 [pounds] with his left
hand because he cannot stabilize the weight with the use of his right hand due to pain
and limited function of the right hand.” (Tr. 292.) Plaintiff himself testified that he could
carry “[f]ive pounds, maybe” with both hands, although he also stated that he couldn’t
carry a bowl of cereal with both hands. (Tr. 25.)
It is important to remember in this regard that an ALJ is under no obligation to
base her residual functional capacity assessment on a particular medical source’s
opinion. See Moses v. Astrue, 2012 WL 1326672 at *4 (D. Colo April 17, 2012). See
also Gonzales v. Astrue, 2012 WL 4356243 at *4 (D. Colo. Sept. 24, 2012) (“Just as
the ALJ is not bound by any particular source opinion as to a claimant's residual
functional capacity, neither is he obligated to include in his assessment every limitation

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possibly suggested by a medical source.”). Residual functional capacity is assessed
“based on all of the relevant medical and other evidence,” 20 C.F.R. § 404.1545(a)(3) &
416.945(a)(3), “including medical records, observations of treating physicians and
others, and plaintiff's own description of his limitations,” Noble v. Callahan, 978 F.Supp.
980, 987 (D. Kan. 1997). Although the ALJ’s determination must be grounded in some
medical evidence, see Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995), it
ultimately is an administrative determination reserved to the Commissioner, 20 C.F.R.
§§ 404.1546 & 416.946; Rutledge v. Apfel, 230 F.3d 1172, 1175 (10th Cir. 2000).
Of course, a treating source opinion may not be rejected absent good cause for
specific, legitimate reasons clearly articulated in the hearing decision. Watkins, 350
F.3d at 1301; Goatcher v. United States Department of Health & Human Services,
52 F.3d 288, 290 (10th Cir. 1995); Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).
Nevertheless, given the totality of evidence, I cannot find reversible error in the ALJ’s
failure to more precisely articulate her reasons for including a right-hand assist in her
residual functional capacity. See Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988).
The ALJ found plaintiff’s testimony regarding his functional abilities and limitations not
entirely credible, and as articulated more fully below, I find no error in that
determination. The suggestion by Dr. Williams that plaintiff cannot stabilize more than
ten pounds with the right hand itself permits a reasonable inference that plaintiff can use
that hand to stabilize less than ten pounds. Coupled with the notation that plaintiff can
use the right hand for daily activities and hygiene, this evidence supports the ALJ’s
residual functional capacity assessment allowing for the limited use of plaintiff’s right

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hand.3
Nor do I find any basis for reversal in the ALJ’s failure to specify the weight given
to consultative psychological examiner Brett Valette’s opinion, as it is clear she gave
that opinion at least some weight, incorporating into her residual functional capacity
assessment his suggestion that plaintiff had mild to moderate limitations in his ability to
make judgments on complex work-related decisions. (Tr. 16, 283.) Plaintiff suggests
that the ALJ was required to go further and consider those additional functional mental
limitations that were found to be “mild,” specifically, his ability to interact appropriately
with the public, supervisors, and co-workers and to respond appropriately to workplace
situations and changes in the work setting. Dr. Valette did not specify what factors
supported this particular conclusion. (Tr. 284).
I find no legal basis on which to impose such a requirement. “Mild” means that
“[t]here is a slight limitation in this area, but the individual can generally function well.”
(Tr. 283.) With respect to unskilled work, the Commissioner has recognized that a
“substantial” loss of the abilities to respond appropriately to supervision, coworkers, and
usual work situations or to deal with changes in a routine work setting would severely
limit the potential occupational base. Social Security Rule 81-15, 1985 WL 56857 at
*4 (SSA 1985). I find no authority suggesting that the same could be said of an
individual with only “mild” restrictions in these abilities, who otherwise “can generally

3

Nor do I find any reversible error in the ALJ’s failure to include Dr. Williams’s total limitation on
plaintiff’s ability to work around moving mechanical parts. (Tr. 297.) This limitation is not supported by
anything in Dr. Williams’s report or otherwise supported or explained by the evidence of record. Moreover,
as the Commissioner points out in his response, none of the three jobs identified by the ALJ as within
plaintiff’s residual functional capacity requires working around moving mechanical parts. (See Def. Resp.
Br. at 12.)

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function well.”4
Relatedly, plaintiff claims that the ALJ inappropriately translated Dr. Valette’s
mild-to-moderate limitations on plaintiff’s ability to understand and carry out complex
instructions into a residual functional capacity for “simple, unskilled work.” Plaintiff
suggests that the characterization of work as “simple” is too nebulous a standard to be
helpful. This argument would be more persuasive if the mental residual capacity form
itself did not ask the medical source to assess the claimant’s abilities to understand,
remember, and carry out “simple” instructions and to make “simple” work-related
decisions. (See Tr. 283.) Dr. Valette apparently had no issue understanding what the
term meant in that context, nor did the vocational expert at the hearing. (See Tr. 49-51.)
Moreover, the ALJ went on to clarify that by her definition, “simple unskilled work”
involved no more than “one, two, or three step instructions.” (Tr. 14.) I therefore find no
error in this regard, either.
Plaintiff next faults the ALJ for discrediting his subjective complaints of pain and
limitation. The Tenth Circuit has outlined a tripartite test for evaluating subjective
complaints of pain:
We must consider (1) whether Claimant established a painproducing impairment by objective medical evidence; (2) if
so, whether there is a “loose nexus” between the proven
impairment and the Claimant’s subjective allegations of pain;
and (3) if so, whether, considering all the evidence, both
objective and subjective, Claimant’s pain is in fact disabling.

4

As plaintiff points out, the ALJ must consider all a claimant’s impairments, both severe and nonsevere, in determining residual functional capacity. See 20 C.F.R. § 404.1545(a)(2). Plaintiff provides no
authority, however, to expand this duty to require the ALJ to include every limitation suggested by a
medical source as characterizing an impairment that already has been found to be severe, as occurred in
this case.

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Musgrave, 966 F.2d at 1375-76 (citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir.
1987)). Nevertheless, “credibility determinations ‘are peculiarly the province of the
finder of fact,’ and should not be upset if supported by substantial evidence.” White v.
Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995)). So long as the ALJ links her credibility assessment to specific
evidence in the record, her determination is entitled to substantial deference. Id. at 910;
see also Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
Here, the ALJ followed the Luna framework and found that plaintiff did have an
impairment that could cause pain. In evaluating whether that pain was as disabling as
alleged, however, the ALJ noted numerous inconsistencies between plaintiff’s testimony
and the medical and other evidence of record. (Tr. 15.) Having reviewed the record, I
find that each of these bases finds adequate support therein.5 Moreover, although it
was not proper to discredit plaintiff merely because of the dearth of objective medical
evidence, see 20 C.F.R. § 404.1529(c)(2), the ALJ provided sufficient additional
reasons that were relevant and legitimate to the credibility analysis (see Tr. 15), and
she clearly did not discount either Dr. King’s or Dr. Williams’s medical opinions on this
basis. In addition, the ALJ properly noted and relied on the fact that, despite his claims
of disability related to depression, plaintiff never sought treatment for this condition.
See Huston v. Bowen, 838 F.2d 1125, 1132 & n.7 (10th Cir. 1988); Fessler v. Apfel,
11 F.Supp.2d 1244, 1251-52 (D. Colo. 1998). In light of these facts, and given the

5

I find unpersuasive plaintiff’s attempt to educate me on the allegedly nuanced medical
significance of what appear to be straightforward observations about the flexibility vel non of plaintiff’s third
finger.

11

deferential standard applicable to the credibility determination, I do not find that reversal
is warranted on this basis.
Finally, plaintiff argues that the ALJ impermissibly discounted the opinion of Dr.
Ben Martinez that plaintiff was disabled. (See Tr. 222-223.) The ALJ gave this opinion
no weight because it addressed no specific functional limitations and was based entirely
on plaintiff’s subjective complaints. (Tr. 16.)6 Although it would be improper to discredit
a medical source opinion solely on the ground that it was based on a patient’s
subjective reports, see Orender v. Barnhart, 2002 WL 1747501 at *6 (D. Kan. July 16,
2002), there are no medical records or other objective evidence supporting Dr.
Martinez’s conclusions, see Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008)
(doctor’s brief statement in work release form “was not a true medical opinion” because
“[i]t did not contain [the doctor’s] judgment about the nature and severity of [the
plaintiff’s] physical limitations, or any information about what activities [the plaintiff] could
still perform”). Moreover, the finding that a claimant is disabled vel non is an issue
reserved to the Commissioner, and although a source statement on that issue must be
considered, it is entitled to no particular weight. See 20 C.F.R. §§ 404.1527(e) &
41.6.927(e); Sosa v. Barnhart, 2003 WL 21436102 at *5 (D. Kan. April 10, 2003),
adopted, 2003 WL 21428384 (D. Kan. Jun. 17, 2003). I therefore find no error in the
ALJ’s determination in this regard.

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Moreover, it appears that although the ALJ characterized Dr. Martinez as a “treating source,” he
in fact saw plaintiff only twice to fill out disability forms. There is no legal basis for binding the ALJ to this
misstatement and thus requiring her to afford Dr. Martinez’s opinions greater weight than they would
otherwise enjoy under the regulations.

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THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated March 26, 2013, at Denver, Colorado.
BY THE COURT:

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