Martinez v. Social Security Administration

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 3/23/17. The Court respectfully REVERSES and REMANDS the Commissioners decision for further consideration at step three and any subsequent steps, including the determination of the appropriate RFC, of the impact, if any, of the medical records authored by Drs. Oh, Torberntsson, and Pineau. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00667-NYW
CHRISTINE APRIL MARTINEZ,
Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of SSA,1
Defendant.

MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
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

1

This action was originally filed against Carolyn Colvin, as Acting Commissioner of the Social
Security Administration. Commissioner Berryhill succeeded Acting Commissioner Colvin as
Acting Commissioner of the Social Security Administration on January 23, 2017. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, this court automatically substitutes Acting
Commissioner Berryhill as Defendant in this matter.

case law.

For the following reasons, I respectfully REVERSE and REMAND the

Commissioner’s decision.
PROCEDURAL HISTORY
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

2

Ms. Martinez references Title XVI of the Act multiple times throughout her opening brief, see,
e.g., [#18 at 6, 14], but the record includes only applications for DIB pursuant to Title II, and the
Administrative Law Judge issued an order limited to Plaintiff’s application for DIB. See [#12-2
at 14].
3

The court uses this designation to refer to the Electronic Court Filing system (“ECF”)
document number and the page number of the Administrative Record found at the bottom right
of the page, where applicable.

4

Radiculopathy is also known as a “pinched nerve.” Grogan v. Barnhart, 399 F.3d 1257, 1262
n.2 (10th Cir. 2005) (citing Cervical Radiculopathy (Pinched Nerve in Neck), at http://
www.emedx.com/emedx/diagnosis_information/shoulder_disorders/cervical_radiculopathy_outli
ne.htm; Radiculopathy, at http://www.back.com/symptoms-radiculopathy.html (“Doctors use the
term radiculopathy to specifically describe pain, and other symptoms like numbness, tingling,
and weakness in your arms or legs that are caused by a problem with your nerve roots.”)).
2 

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,

3 

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,

4 

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).
STANDARD OF REVIEW
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

5 

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).
ANALYSIS
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.

6 

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

5

“A claimant’s RFC to do work is 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. The decision maker first determines the type of work, based on physical exertion
(strength) requirements, that the claimant has the RFC to perform. In this context, work existing
in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine
the claimant’s ‘RFC category,’ the decision maker assesses a claimant’s physical abilities and,
consequently, takes into account the claimant’s exertional limitations (i.e., limitations in meeting
the strength requirements of work). Williams, 844 F.2d at 751-52. However, if a claimant
suffers from both exertional and nonexertional limitations, the decision maker must also consider
7 

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). [#122 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

“all relevant facts to determine whether the claimant’s work capability is further diminished in
terms of jobs contraindicated by nonexertional limitations.” Id.

8 

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 existed in the national economy that Plaintiff could
perform. [Id. at 23-24]. Accordingly, the ALJ concluded that Plaintiff was not disabled.
Ms. Martinez now argues that she meets the “federal” definition of disabled, [#18 at 3-6],
the ALJ should have found her disabled because she determined at step two that Ms. Martinez
had severe impairments, and that her impairments qualify her as disabled pursuant to the listing
of impairments. [Id. at 6-7, 9-13].6 The court finds, in liberally construing Plaintiff’s arguments
and upon its own review of whether the ALJ’s decision is supported by substantial evidence in
the record, that the ALJ erred in failing to consider all of the relevant medical evidence and
therefore, the determination should be remanded for further consideration by the ALJ.

6

Ms. Martinez also raises several additional arguments on reply. For instance, she asserts that
the ALJ “did not give sufficient weight to medical documentation, mischaracterized Plaintiff’s
abilities in contradiction to the Residual Functioning Capacity…, and failed to properly advise
Pat Paulini, vocational rehabilitation counselor…of Plaintiff’s exertional and non-exertional
limitations, including Plaintiff’s pain and mitigating symptoms, and her prescribed
medications…[and] improperly relied on a vocational expert’s opinion that did not consider all
relevant evidence in the record.” [#24 at 2]. With the exception of whether the ALJ properly
considered the medical evidence (either within the context of step 3 or the determination of the
RFC), Plaintiff failed to raise any of these arguments in her opening brief and cannot now assert
them for the first time in her Reply. Gragert v. Colvin, No. 12–cv–02641–CMA, 2014 WL
1214028, at *5 (D. Colo. Mar. 24, 2014) (finding claimant had forfeited argument raised only in
the reply) (citing SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201, 1226 (10th Cir. 2009) (noting
that arguments raised for the first time in a reply brief are waived) (further citations omitted). To
the extent Plaintiff intended to raise these other arguments in her opening brief, she did not
sufficiently develop them so as to allow any meaningful review. See Eateries, Inc. v. J.R.
Simplot Co., 346 F.3d 1225, 1232 (10th Cir. 2003) (concluding that appellant’s superficial
argument with no record citations or legal authority was “insufficient to garner appellate
review”); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (citing Adams–Arapahoe
Joint School Dist. v. Continental Ins. Co., 891 F.2d 772, 776 (10th Cir. 1989) (issue not formally
designated is waived; mere mention in context of another matter is not enough)). Accordingly,
this court will address only those arguments identified in the opening brief and to which
Defendant had an opportunity to respond.
9 

B.

ALJ’s Consideration of Severe Impairments
The ALJ found at step two that Plaintiff had severe impairments characterized as obesity

and C5-6 radiculopathy due to moderate to severe neuroforaminal stenosis. Plaintiff does not
argue that the ALJ should have listed additional impairments as severe, but that the ALJ should
have determined her disabled on account of the radiculopathy at either step 2 or 3. See generally
[#18].
1.

“Federal” Definition of Disability

As Defendant notes, Ms. Martinez cites the Americans with Disabilities Act (“ADA”), 42
U.S.C. 12101, et seq., in support of her first argument that she meets the federal definition of
disabled. See [#18 at 3]. The ADA “seeks to eliminate unwarranted discrimination against
disabled individuals in order both to guarantee those individuals equal opportunity and to
provide the Nation with the benefit of their consequently increased productivity,” and requires a
fact-specific analysis of whether a particular, disabled individual can perform a certain job with
or without reasonable accommodation. See Cleveland v. Policy Management Systems Corp., 526
U.S. 795, 801 (1999) (citing 42 U.S.C. § 12111(8)). By contrast, the Act entitles an individual to
disability benefits 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). While a finding of disability under one Act can inform
as to disability under the other Act, the definition of disability under the ADA does not control
the determination of disability under the Social Security Act for the purpose of awarding
benefits. See Cleveland, 526 U.S. at 801 (“The Social Security Act and the ADA both help
individuals with disabilities, but in different ways.”); Johnson v. State, Oregon Dept. of Human

10 

Resources, Rehabilitation Div., 141 F.3d 1361, 1366-67 (9th Cir. 1998) (citing Swanks v.
Washington Metro. Area Transit Auth., 116 F.3d 582, 586 (D.C. Cir. 1997) (“The ADA and the
disability provision of the Social Security Act have different purposes, and have no direct
application to one another”) (further citation omitted)). See also Toscano v. Warren County
Dept. of Human Services, 323 F. App’x 120, 122 (3d Cir. 2009) (holding disability as recognized
under the ADA is not synonymous with disability that entitles a person to social security
benefits). Accordingly, whether Plaintiff qualifies as disabled under the ADA was not a question
before the ALJ and does not bear on the court’s review of the ALJ’s decision.
2.

Step 2 Determination

Plaintiff next argues that in finding she had severe impairments at step two, the ALJ erred
in ultimately concluding that she is not disabled. [#18 at 7]. Contrary to Plaintiff’s position, step
two does not provide an opportunity for ALJs to award benefits, but rather to proceed with the
subsequent inquiry into whether the claimant can perform substantial gainful activity within the
economy. The term “impairment” is not synonymous with “disability,” and step two represents
an early stage of the administrative process, at which ALJs may “weed out…those individuals
who cannot possibly meet the statutory definition of disability.” Bowen v. Yuckert, 482 U.S.
137, 156 (1987) (O’Conner, J., concurring). See also Langley v. Barnhart, 373 F.3d 1116, 1123
(10th Cir. 2004). Thus, an ALJ ends the evaluation at step two, and denies benefits, only if he or
she finds the claimant does not have an impairment or combination of impairments that would
have more than a minimal effect on the claimant’s ability to do basic work activities. Williams,
844 F.2d at 750. Upon finding that a claimant has a severe impairment, as the ALJ found here,
the five-step evaluation described above requires the ALJ to proceed to step 3.

11 

3.

Subsequent Steps

Ms. Martinez generally argues that her impairment is such that the ALJ should have
determined her to be disabled. Though she does not attribute it to a particular step, this court
construes this argument as a challenge to the either the ALJ’s determination at step 3 that her
severe impairment is not equivalent to a listing, or as a challenge to the RFC as formulated by
the ALJ, as Ms. Martinez’s asserts the ALJ “did not give sufficient weight to medical
documentation.”7 On reply, Ms. Martinez asks the court to review an October 2012 Med-9 form
completed by her Veterans Affairs (“VA”) primary care nurse practitioner, Nenette McNamera,
and records authored by three VA primary care physicians: Richard J. Oh, M.D.; Peter
Torberntsson, M.D.; and Joseph P. Pineau, M.D. See [#24 at 4-5]. Ms. Martinez argues that
these records support a finding that her impairment is permanent. [Id.] The ALJ reviewed the
Med-9 form and Nurse McNamera’s assessment, see [#12-2 at 20], and this court finds no basis
to disturb the ALJ’s findings with respect to those records.
However, the ALJ did not address the records generated by Drs. Oh, Torberntsson, or
Pineau, which state as follows. On September 23, 2013, Dr. Oh observed that, with respect to
Plaintiff’s C5-6, while “[t]here is mild circumferential disc bulge without significant canal
stenosis,” there is also “moderate to severe left neural foraminal narrowing secondary to disc
osteophyte complex.”

[#12-12 at 576-577].

Records from a follow up appointment on

November 20, 2013 with Dr. Torbernstsson again indicate “severe C5/6 left neuroforaminal
narrowing,” although they also state that Plaintiff’s April 2013 EMG was negative for
radiculopathy. [Id. at 660]. Finally, on February 13, 2014, Dr. Pineau observed that an MRI
indicated Plaintiff “has nerve root impingement on the left at C4-5-6.” [Id. at 595].

7

In either case, Ms. Martinez bears the burden of proof. Nielson v. Sullivan, 992 F.2d 1118,
1120 (1993).
12 

While an ALJ is not required to discuss every piece of evidence in the record, she must
discuss the evidence supporting her decision and also “must discuss the uncontroverted evidence
[s]he chooses not to rely upon, as well as the significantly probative evidence [s]he
rejects.” Clifton v. Chater, 79 F.3d 1007, 1009–10 (10th Cir. 1996); 20 C.F.R. § 404.1520(a)(3),
(e). See also Holcomb v. Astrue, 389 F. App’x 757, 760 (10th Cir. 2010) (“[T]he ALJ is required
to consider all relevant

evidence

in

the

record,

including opinions from medical and

non medical sources who have treated the claimant”) (citing Social Security Ruling 06–03p,
2006 WL 2329939, at *4 (Aug. 9, 2006)); Grogan, 399 F.3d at 1262 (citing Baker v. Bowen, 886
F.2d 289, 291 (10th Cir. 1989)). The court will not reweigh the evidence, but must nonetheless
“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.” Grogan,
399 F.3d at 1262 (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)).
The ALJ found that Ms. Martinez’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but that her statements concerning “the
intensity, persistence, and limiting effects” of the symptoms were not entirely credible in light of
the objective medical evidence indicating reduced symptoms and her testimony regarding her
daily activities.8

[Id. at 19].

For example, the ALJ found that Plaintiff’s recovery “is

demonstrated by consistent improvement in objective medical signs and findings from June 29,
2012 to March 2013…by a normal EMG in April 2013, and by cervical x-rays showing
improvement in her subluxation of her cervical vertebrae so that the condition was deemed only
mild.” [Id. at 22 (citing #12-12 at 576-578)]. This court concludes that the records authored by
Drs. Oh, Torberntsson, and Pineau represent probative evidence that the ALJ was required to

8

Ms. Martinez does not challenge the ALJ’s determination of her credibility.
13 

discuss in her findings. Because the ALJ failed to mention these records, this court cannot
determine if she rejected the findings contained therein, and, if so, why, or determined the
findings were tempered by other medical records, or simply overlooked them. While the ALJ
may conclude on remand that the VA records do not impact her disability determination, she
must indicate why she reaches that outcome.9
In addition, in one section of the RFC determination, the ALJ states that Plaintiff can
perform “light” work [#12-2 at 17], but then concludes by stating that Ms. Martinez has been
capable of performing a wide range of “medium work as described in Finding 5 of the RFC.”10
[Id. at 22]. Upon remand, the ALJ should clarify the RFC, in light of the additional medical
evidence.
4.

Musculoskeletal Listing

Lastly, Ms. Martinez argues that her impairment meets the Social Security listing. At
step three, the determination is made “whether the impairment is equivalent to one of a number
of listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Williams, 844 F.2d at 751. Thus, an ALJ may truncate the five-step
evaluation if he or she finds that the severe impairment meets or equals the severity of a listed

9

The court properly addresses this matter even without affording Plaintiff a liberal construction
of her arguments, given its independent responsibility to examine whether substantial evidence
supports the ALJ’s opinion. Womack v. Astrue, No. CIV-07-167-W, 2008 WL 2486524, at *5
(W.D. Okla. June 19, 2008) (citation omitted) (observing that a reviewing court may not
“abdicate its traditional judicial function, nor escape its duty to scrutinize the record as a whole
to determine whether the conclusions reached are reasonable”).

10

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §
404.1567(b). Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. Id. at § 404.1567(c). If an individual
can perform medium work, she can also perform “light” and “sedentary work.” Id.  
14 

impairment. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (“At step three, if a
claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be
disabled and entitled to benefits.”). The impairment or combination of impairments must satisfy
the listing for at least twelve consecutive months, see Barnhart v. Walton, 535 U.S. 212, 214-15
(2002), and a claimant has the burden to establish that her impairment(s) meet a listing set forth
at 20 C.F.R., pt. 404, subpt. P, app. 1. See Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003).
Plaintiff argues the ALJ erred in failing to find that her impairment(s) meet the criteria of
section 1.00, regarding musculoskeletal issues, but she does not specify which of the seven
listings within section 1.00 applies to her condition. See [#18 at 9-10]. Defendant contends that
by not identifying a specific listing, Plaintiff has waived this argument. [#22 at 10]. Although
Defendant is correct that the court should consider and discuss only those contentions that a
claimant has adequately briefed, Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012),
I am mindful that Plaintiff is proceeding pro se and that the court is required to afford her
arguments a liberal construction. Thus, I will consider Plaintiff’s argument within the context of
the medical listing identified and discussed by the ALJ in her opinion.
Here, the ALJ considered Listing 1.04(A) and found that Plaintiff’s impairment did not
meet the listing criteria. Listing 1.04(A) reads:
Disorders
of
the
spine (e.g.,
herniated
nucleus
pulposus, spinal
arachnoiditis, spinal
stenosis, osteoarthritis, degenerative
disc
disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or

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reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to ambulate effectively,
as defined in 1.00B2b.
20 C.F.R., Part 404, Subpart P, Appendix 1, § 1.04 (emphasis added). The ALJ recognized the
following: the C5-6 radiculopathy was initially characterized “by some nerve root compression
with neuro-anatomic distribution of pain and limitation of motion of the spine”; a June 2012
exam revealed “-5/5 hand grip,” but also that Plaintiff’s deep tendon reflexes and sensation were
intact; and October 2012 medical notes reported grip weakness, arm numbness, and Plaintiff’s
inability to lift her left arm overhead. [#12-2 at 17 (citing #12-7 at 268, 252-253)]. The ALJ
then considered that “most of these symptoms had resolved” by November 2012, [id. (citing #128 at 400-402, #12-9 at 403-406], and that by February 2013, Plaintiff’s “radicular symptoms had
begun to resolve despite some ongoing reduction in strength and range of motion.” [Id. (citing
#12-8 at 303-304)]. The ALJ thus concluded that the medical evidence demonstrated “only brief
loss of sensation,” rather than reflex or motor loss. [Id.] 11
“To show that an impairment or combination of impairments meets the requirements for
a listing, a claimant must provide specific medical findings that support each of the various
requisite criteria for the impairment.” Lax, 489 F.3d at 1085 (citing 20 C.F.R. § 404.1525). If
the ALJ finds that the claimant does not meet a listed impairment, she is “required to discuss the

11

The ALJ also considered whether Plaintiff’s obesity combined with her spinal issue might
meet a medical listing and determined from the record evidence it did not. [#12-2 at 17].
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evidence and explain why [s]he found that [the claimant] was not disabled at step three.”
Morgan v. Astrue, 236 F. App’x 394, 396 (10th Cir. 2007) (quoting Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996)). While the ALJ is not required to discuss every piece of evidence,
the record must nonetheless demonstrate that the ALJ considered all of the evidence. Id.
I find that the above discussion concerning the VA records applies equally to Plaintiff’s
contention regarding whether the ALJ erred at step three. Without mention of these records in
her opinion, I cannot find that the ALJ considered all of the evidence in determining that
Plaintiff’s impairments do not meet the severity of a listed impairment.
CONCLUSION
For the reasons set forth herein, the court respectfully REVERSES and REMANDS the
Commissioner’s decision for further consideration at step three and any subsequent steps,
including the determination of the appropriate RFC, of the impact, if any, of the medical records
authored by Drs. Oh, Torberntsson, and Pineau.

DATED: March 23, 2017

BY THE COURT:

s/ Nina Y. Wang __________
United States Magistrate Judge

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