Martinez v. Astrue

Filing 29

ORDER affirming the ALJ's denial of social security disability benefits, and vacating the oral argument hearing, by Judge Christine M. Arguello on 2/26/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-03239-CMA
DONNA G. MARTINEZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.

ORDER AFFIRMING ALJ’S DECISION DENYING SOCIAL SECURITY BENEFITS

This matter is before the Court on review of the Commissioner’s decision to deny
Plaintiff Donna G. Martinez’s (“Plaintiff”) application for social security disability benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. Jurisdiction is proper
under 42 U.S.C. § 405(g).
I. BACKGROUND
Plaintiff was born in August 1966. She completed high school and worked in the
past as an aide at a boys’ and girls’ home and a cashier. Plaintiff applied for Social
Security disability benefits on July 29, 2004, claiming a disability date of February 22,
1999, arising from “back pain, fatigue, depression, osteoarthritis, fibromyalgia”. Plaintiff
later amended her disability onset date to July 1, 2004, at which time she was 37 years
old. (Doc. # 20 at 1, Case No. 09-cv-00668-CMA); (AR at 566-77).

From there, Plaintiff’s foray into the cavernous world of the Social Security
Administration decisions and judicial review of those determinations began. On March
16, 2006, Administrative Law Judge (“ALJ”) E. William Shaffer held a hearing, then
issued a decision denying Plaintiff’s request for benefits on July 21, 2006. The Appeals
Council denied Plaintiff’s request for review of that decision. (Doc. # 20 at 1-2, Case
No. 09-cv-00668-CMA.) Plaintiff sought judicial review of ALJ Shaffer’s decision (Doc.
# 3, Case No. 07-cv-00254-JLK), and Defendant filed an Unopposed Motion to Remand
on the grounds that “SSA’s Appeals Council, in its role as finder of fact, has further
reviewed Plaintiff’s case and determined that a remand for further proceedings is
appropriate.” (Doc. # 22, Case No. 07-cv-00254-JLK.) Accordingly, Judge Kane
granted Defendant’s Unopposed Motion for Remand. (Doc. # 23, Case No. 07-cv00254-JLK.) The Appeals Council then remanded the case to an ALJ with specific
instructions to remedy the errors. (Doc. # 20 at 2-4, Case No. 09-cv-00668-CMA.)
ALJ Shaffer held a supplemental hearing on July 10, 2008 during which, he
obtained testimony from two medical experts—one of which was Dr. Robert Pelc,
a licensed psychologist. (AR at 524-62.) On August 28, 2008, ALJ Shaffer again
issued a decision denying Plaintiff’s request for benefits. (AR at 433-51.) Plaintiff
again sought judicial review of that decision after the Appeals Council declined to
assume jurisdiction. (Doc. # 1, Case No. 09-cv-00668-CMA.) On April 29, 2010,
this Court issued an opinion affirming ALJ Shaffer’s decision with respect to Plaintiff’s
physical ailments, but reversing his decision regarding her mental limitations. (Doc.
# 20 at 1-2, Case No. 09-cv-00668-CMA.)

2

Again, the case was remanded and a hearing was held, this time before ALJ
Musseman, on November 4, 2010. (AR at 911-30.) ALJ Musseman again received
testimony from Dr. Pelc. (Id.) On February 7, 2011, ALJ Musseman denied Plaintiff’s
request for benefits. (AR at 680-91.) On February 16, 2012, the Appeals Council
assumed jurisdiction and again remanded the case back to the ALJ because it
determined that his decision did not fully comply with this Court’s 2010 Order.
ALJ Musseman held yet another hearing on August 14, 2014, and on September
7, 2012, issued a decision denying Plaintiff’s request for benefits. (AR at 639-40.)
In applying the five-step sequential evaluation process outlined in 20 C.F.R. § 404.1520
to determine whether Plaintiff was disabled, the ALJ determined that:
1. Plaintiff had not engaged in substantial gainful activity since July 1, 2004
[Step 1];
2. Plaintiff had the following severe impairments: affective disorder, anxiety,
posttraumatic stress disorder (PTSD), and personality disorder [Step 2];
3. Plaintiff did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 [Step 3];
4. Plaintiff had the residual functional capacity (“RFC”) to perform sedentary
work, except that she can occasionally climb stairs, stoop, bend, kneel, and
squat; cannot climb ladders or scaffolds; can occasionally push and pull up to
ten pounds; and requires non-complex tasks (SVP 2 or less) and occasional
dealing with the public 1;
1

Sedentary work is defined in 20 C.F.R. § 404.1567(a) as: 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 met.
SVP stands for “specific vocational preparation.” It is “the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility needed
for average performance in a specific job-worker situation.” U.S. Dep’t of Labor, Dictionary of
3

5. Plaintiff was unable to perform any past relevant work [Step 4]; and
6. Given Plaintiff’s age, education, work experience, and RFC, there were
jobs that existed in significant numbers in the national economy that Plaintiff
could perform, such as: call out operator, surveillance systems monitor, and
routing clerk. [Step 5].
Thereafter, Plaintiff filed a request with the Appeals Council for review, which the
Council denied on September 7, 2012. (AR at 563.)
On December 12, 2012, Plaintiff filed this civil action, seeking judicial review of
the denial of Social Security benefits. (Doc. # 1.) On September 24, 2013, Plaintiff filed
her Opening Brief. (Doc. # 22.) Defendant, the Commissioner of Social Security, filed
a response (Doc. # 25), to which Plaintiff replied (Doc. # 26).
II. STANDARD OF REVIEW
The Court reviews the ALJ’s decision to determine whether substantial evidence
in the record as a whole supports the factual findings and whether the correct legal
standards were applied. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. It requires more than a scintilla, but less than
a preponderance.” Id. (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)).
“Evidence is not substantial if it is overwhelmed by other evidence in the record.”
Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In so reviewing,

Occupational Titles, app. C (4th ed. 1991). An SVP of 2 or less corresponds with unskilled work.
SSR 00-4p, 65 Fed. Reg. 75,759, 75,760 (Dec. 4, 2000). “Unskilled work is work which needs
little or no judgment to do simple duties that can be learned on the job in a short period of time.”
20 C.F.R. §§ 404.1568(a), 416.968(a).
4

the Court may neither reweigh the evidence nor substitute its judgment for that of
the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).
III. ANALYSIS
Plaintiff raises one issue for the Court’s review: that the ALJ erred when he
failed to account for all of Plaintiff’s moderate limitations in fashioning her RFC. In so
contending, Plaintiff argues that the “ALJ erred by failing to incorporate the moderate
mental limitations assessed by . . . treating psychiatrist, Dr. Nizami” into her RFC. (Doc.
# 22 at 6.) Plaintiff argues that because the ALJ gave great weight to and adopted the
opinion of Dr. Pelc, who agreed with Dr. Nizami’s opinion that Plaintiff had several
moderate limitations in mental functioning, the ALJ was also obligated to include
those limitations in Plaintiff’s RFC. (Id. at 6-8.)
In his decision, the ALJ acknowledged that Dr. Nizami opined on a mental
impairment questionnaire dated September 18, 2006, that Plaintiff had “moderate
limitations in the ability to maintain attention, work with or get along with others without
being distracted or distracting, respond to changes and travel to unfamiliar places . . . .” 2
However, Dr. Nizami also identified several marked limitations and concluded that
Plaintiff would be unable to complete a normal workday. The ALJ noted that Dr. Nizami
provided little additional documentation in his narrative to support his conclusions
expressed on a check-the-box form, treated Plaintiff “infrequently”, and recorded no
2

Specifically, Dr. Nizami indicated, by way of check marks, that Plaintiff had moderate
limitations in her ability to: carry out detailed instructions; maintain attention and concentration
for extended periods of time; work in coordination with or in proximity to others without being
unduly distracted by them; get along with coworkers or peers without distracting them or
exhibiting behavioral extremes respond appropriately to changes in a routine work setting;
and travel in unfamiliar places.
5

reduction in her Global Assessment Functioning score. Thus, the ALJ concluded
that there was a lack of objective support for Dr. Nizami’s “extreme” conclusions and
assigned that opinion little weight. (AR at 572.) 3
With respect to Dr. Pelc’s opinion, which the ALJ adopted and assigned great
weight, he noted that Dr. Pelc opined that Plaintiff had
moderate levels of restrictions in activities of daily living, interacting with
others, and in maintaining concentration, persistence or pace. . . . that
she can perform relatively simple, two or three step tasks, which can be
learned in 30 to 60 days. . . . [And she] requires minimal to occasional
interaction with the public, supervisors, and coworkers.
(AR at 574.)
Plaintiff does not explain how the moderate limitations Dr. Nizami identified do
not correspond to the limitations Dr. Pelc identified. Instead, Plaintiff seems to assume
that the two opinions are not complimentary. However, it is apparent to the Court that
in agreeing with Dr. Nizami, Dr. Pelc merely placed the limitations Dr. Nizami identified
into broader categories. Indeed, the Commissioner often breaks down these broad
categories into specific limitations as follows:
Broad Category
daily living/adaptation
limitations
interacting with
others/social
interaction limitations
maintaining
concentration,
persistence, or

Specific limitations
•
Ability to respond appropriately to
changes in the work setting
•
Ability to travel to unfamiliar places
•
Ability to get along with coworkers or
peers without distracting them or
exhibiting behavioral extremes
•
Ability to carry out detailed instructions
•
Ability to maintain attention and
concentration for extended periods of time

3

Plaintiff does not take issue with the ALJ’s decision to assign Dr. Nizami’s opinion little weight,
nor his decision to not account for the marked limitation. She limits her arguments to whether
the ALJ adequately accounted for her moderate limitations in the RFC.
6

pace/sustained
concentration and
persistence
limitations

•

Ability to work in coordination with or in
proximity to others without being
distracted by them.

Therefore, the Court disagrees that Dr. Pelc’s opinion somehow failed to account for the
limitations set forth by Dr. Nizami. If anything, because Dr. Pelc focused on broader
categories of mental functioning, his opinion was over inclusive compared to the more
specific limitations suggested by Dr. Nizami. Accordingly, the Court disagrees that the
ALJ failed to account for the moderate limitations identified by Dr. Nizami when he
adopted and gave great weight to Dr. Pelc’s opinion. As such, this case is
distinguishable from Haga v. Astrue, in which the Tenth Circuit held that an ALJ should
explain why he or she rejects some moderate restrictions while adopting others. 482
F.3d 1205, 1208 (2007). 4 In the instant case, the ALJ did not reject Plaintiff’s moderate
limitations; he accepted them, and indeed adopted them through Dr. Pelc’s opinion.
(AR at 574) (the ALJ “gives great weight to, and adopts, Dr. Pelc’s opinion . . . .”)
However, this does not end the Court’s inquiry. Next, the Court must assess
whether the ALJ’s RFC adequately accounted for these limitations. 5

4

For similar reasons, the Court finds Plaintiff’s reliance on McLeran v. Astrue is misplaced.
No. 09-cv-02924-LTB, 2010 WL 4318579 (D. Colo. Oct. 25, 2010).
5

Plaintiff, looking back to the 2008 hearing, points to testimony by a VE that a person with
the moderate mental limitations identified by Dr. Nizami would be “unable to perform in a
competitive labor market.” (Doc. # 22, at 11.) Thus, Plaintiff contends, her “moderate mental
limitations conclusively establish[] that [she] is disabled from all competitive employment.” (Id.)
Plaintiff’s argument is flawed for two reasons. First, the RFC that formed the basis of the ALJ’s
questions to the VE in 2008 (and ultimately assessed in the 2008 decision) contained more
physical limitations than the RFC assessed in 2012, which is at issue here. (Compare AR at
385 (2008 decision) (sedentary work with additional sit, stand, walking, and sitting limitations)
with AR at 571 (2012 decision) (no additional sit, stand, walking, and sitting limitations beyond
sedentary work classification).) Plaintiff makes no argument that the ALJ erred in assessing
7

An ALJ must make specific RFC findings based on all of the relevant evidence
in the case record. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); SSR
96-8p, 1996 WL 374184, at *5 (July 2, 1996). Those findings must be supported by
substantial evidence. See Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
The ALJ is responsible for the RFC assessment. 20 C.F.R. § 404.1546(c).
The RFC assessment must include a narrative discussion describing how
the evidence supports each conclusion, citing specific medical facts . . .
and nonmedical evidence . . . the adjudicator must discuss the individual's
ability to perform sustained work activities in an ordinary work setting on
a regular and continuing basis . . . and describe the maximum amount
of each work-related activity the individual can perform based on the
evidence available in the case record. The adjudicator must also explain
how any material inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Here, the ALJ accepted Dr. Pelc’s
opinion that Plaintiff’s moderate limitations in activities of daily living, interacting with
others, and maintaining concentration, persistence, and pace translated into working
environment limitations of performing simple, two to three step tasks, which can be
learned in 30 to 60 days and minimal to occasional interaction with the public,
supervisors, and coworkers. (AR at 574.) The ALJ adopted this assessment and
fashioned an RFC that limited Plaintiff to “non-complex tasks (SVP 2 or less) and
occasional dealing with public.” The Court therefore determines that the ALJ
adequately accounted for Plaintiff’s moderate limitations by adopting Dr. Pelc’s
her physical limitations. Second, a VE testified at the 2012 hearing that a person with the RFC
ultimately assigned to Plaintiff could perform the work of a call-out operator, a surveillance
system monitor, and a routing clerk. (AR at 852-53.) Thus, the Court is not persuaded that
the testimony from 2008 is at all probative in demonstrating that Plaintiff is precluded from all
competitive employment. Instead, the VE’s 2012 testimony is pertinent to the Court’s inquiry
and that testimony constitutes substantial evidence supporting the ALJ’s finding of no disability.
8

opinion and incorporating that opinion into the RFC. While the Court is sympathetic to
Plaintiff’s decade-long attempt to receive benefits, it cannot say, based on the limited
issue before it, that the ALJ committed reversible error. 6
IV. CONCLUSION
Accordingly, it is ORDERED that the ALJ’s denial of social security disability
benefits is AFFIRMED. It is

FURTHER ORDERED that each party shall pay its own costs and
attorneys’ fees. It is
FURTHER ORDERED that oral argument hearing in this matter scheduled
for March 5, 2014, at 3:30 PM, is VACATED.
DATED: February

26

, 2014
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

6

The Commissioner concedes that the RFC did not include Dr. Pelc’s opinion limiting Plaintiff’s
interactions with supervisors and coworkers. The Court agrees that this omission was
harmless. The position of routing clerk specifically states that “taking instructions-helping”
people is not a significant part of the job, Dictionary of Occupational Titles, 1991 WL 672123,
no. 222.587-038 (4th ed. 1991), and that position exists in significant numbers nationwide. See
Martinez v. Astrue, No. 10-cv-00857-SA, 2011 WL 2912817, at *9 (D. Utah 2011) (30,000 jobs
in the national economy is a significant number); Taylor v. Astrue, No. 11-cv-01425-CMA, 2012
WL 1520179, at *8 (D. Colo. 2012) (25,000 jobs in the national economy is a significant
number); see further (AR at 853) (VE testimony there are approximately 52,841 jobs nationally).
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