Martinez v. Commissioner, Social Security Administration

Filing 31

OPINION AND ORDER re: 11 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Commissioner, Social Security Administration, By Magistrate Judge N. Reid Neureiter on 12/20/2018. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02150-NRN
CYNTHIA VERONICA MARTINEZ,
Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
N. REID NEUREITER
United States Magistrate Judge
An Administrative Law Judge (“ALJ”) determined that Plaintiff Cynthia Martinez is
not disabled for purposes of the Social Security Act (the “Act”). (AR1 26.) Ms. Martinez
has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C.
§ 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate
Judge under 28 U.S.C. § 636(c). (Dkt. #14.)
Standard of Review
In Social Security appeals, the Court reviews the ALJ decision to determine
whether the factual findings are supported by substantial evidence and whether the
correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075
(10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla, but less
than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009)

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All references to “AR” refer to the sequentially numbered Administrative Record filed in
this case. (Dkt. ##11 & 11-1 through 11-15).
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(internal quotation marks omitted). The Court “should, indeed must, exercise common
sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d
1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Background
At the second step of the Commissioner’s five-step sequential evaluation process
for making determinations,2 the ALJ found that Ms. Martinez “had the following severe
impairments: lumbar and cervical degenerative disc disease; right shoulder AC
separation; diabetes mellitus; bipolar disorder; and anxiety disorder.” (AR 17.) The ALJ
then determined, at step three, that through the current date last insured, Ms. Martinez
“did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments” in the regulations. (AR 18.)
Because she concluded that Ms. Martinez did not have an impairment or combination of
impairments that meets the severity of the listed impairments, the ALJ found that
through the date last insured, Ms. Martinez had the following residual functional
capacity (“RFC”):
. . . [Ms. Martinez] had the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) with the following abilities and
limitations: [Ms. Martinez] could have occasionally climbed ramps and

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The Social Security Administration uses a five-step sequential process for reviewing
disability claims. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step process
requires the ALJ to consider whether a claimant: (1) engaged in substantial gainful
activity during the alleged period of disability; (2) had a severe impairment; (3) had a
condition which met or equaled the severity of an impairment as listed in the
regulations; (4) could return to her past relevant work; and, if not, (5) could perform
other work in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);
Williams v. Bowen, 844 F.2d 748, 750–51 (10th Cir. 1988.) The claimant has the burden
of proof through steps one to four; the Social Security Administration has the burden of
proof at step five. Lax, 489 F.3d at 1084.
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stairs but was unable to climb ladders, ropes, or scaffolds; [Ms. Martinez]
was occasionally able to balance, stop, kneel, crouch, and crawl; [Ms.
Martinez] needed to avoid hazards such as unprotected heights and
dangerous moving machinery; [Ms. Martinez] was unable to reach over
head with her right (dominant) upper extremity; [Ms. Martinez] could have
no more than occasionally reached overhead with the left upper extremity;
[Ms. Martinez] could have frequently reached in all other directions
bilaterally, and was limited to frequent handling and fingering bilaterally;
[Ms. Martinez] was limited to low stress work, which is defined as
occasional decision making and occasional adapting to workplace change;
[Ms. Martinez] was limited to occasional public contact; and [Ms. Martinez]
was unable to perform work that would require travel to unfamiliar places.
(AR 20-21.) At step five, the ALJ determined that “[t]hrough the current date last
insured, considering [Ms. Martinez’] age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the national
economy that [Ms. Martinez] could have performed . . . .” (AR 25.)
As a result, the ALJ concluded Ms. Martinez was not disabled and was not
entitled to benefits. (AR 26-27.)
Ms. Martinez asserts two reversible errors: first, that the ALJ erred when she
denied Ms. Martinez’ motion to reopen her prior claim; and second, that the ALJ erred
by concluding there were jobs in the national economy that Ms. Martinez could perform,
and therefore she is not disabled within the meaning of the Act. (Dkt. #15 at 4-8.)3
I conclude the ALJ did not err in denying Ms. Martinez’ motion to reopen her prior
claim, but that she did err by concluding the Commissioner had met her burden of
proving available jobs in the national economy that Plaintiff could perform. Although the
ALJ, in her RFC findings and analysis, referenced two limitations that the Vocational

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Although in her Opening Brief, Ms. Martinez “asserts that the administrative decision
fails due to improper application of the legal standards at step three, [and a] failure to
demonstrate the conclusion made at step three was supported by substantial evidence”
(Dkt. #15 at 3), nowhere in her brief does she address or elaborate on this assertion,
and thus I do not address it in this Order.
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Expert testified would make Ms. Martinez unable to perform the three jobs identified by
the Vocational Expert, the ALJ failed to make any specific factual findings in relation to
these two limitations, necessitating the reversal and remand of the ALJ’s decision for
further development of the record with respect to these two limitations.
Analysis
1. Motion to Reopen
Ms. Martinez first argues the ALJ erred when she denied counsel’s request to
reopen Ms. Martinez’ prior claim for Social Security disability insurance benefits (“DIB”).
Ms. Martinez’s prior application for DIB was dated October 29, 2013. (AR 37.) As Ms.
Martinez admits, she did not appeal that decision. (Dkt. #15 at 4; Dkt. #26 at 1.) Ms.
Martinez filed the claim at dispute in this case on March 17, 2014 (AR 164-176), and her
hearing before the ALJ regarding the application in dispute in this case was held on
April 4, 2016. (AR 15, 32.)
Pursuant to 20 CFR § 416.1488, a determination may be reopened within 12
months of the date of the notice of the initial determination, within two years of the date
of the notice for good cause, as defined in 20 CFR 416.1489, or at any time if it was
obtained by fraud or similar fault. Judicial review of final decisions on claims arising
under the Act, however, is limited by Sections 205(g) and (h) of the Act. 42 U.S.C. §§
405(g) & (h). Section 205(h) precludes judicial review of the “findings of fact or decision
of the Commissioner of Social Security . . . except as herein provided.” 42 U.S.C. §
405(h). Section 205(g) provides for federal jurisdiction over “any final decision of the
Commissioner of Social Security made after a hearing to which [the claimant] was a
party, irrespective of the amount in controversy.” 42 U.S.C. § 405(g).

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“It is well settled that federal courts lack jurisdiction under § 205 to review the
Commissioner’s discretionary decision to decline to reopen a prior application or to deny
a subsequent application on res judicata grounds.” Tobak v. Apfel, 195 F.3d 183, 187
(3rd Cir. 1999) (citing Califano v. Sanders, 430 U.S. 99, 107-09 (1977), and Stauffer v.
Califano, 693 F.2d 306, 307 (3d Cir. 1982)). See also Keller v. Comm’r, Social Sec.
Admin., --- F.App’x ---, 2018 WL 4360886 at *2 (10th Cir. Sept. 13, 2018). As the
Supreme Court explained in Sanders, because an administrative decision declining to
reopen a prior claim or denying a subsequent claim on res judicata grounds does not
require a hearing, it is not a “final decision . . . made after a hearing” as required for
jurisdiction under § 205(g) of the Act. See Sanders, 430 U.S. at 107-08.
Although a federal court has the ability to determine its own jurisdiction by
examining whether res judicata has been properly applied, Tobak, 195 F.3d at 187
(citing McGowen v. Harris, 666 F.2d 60, 66 (4th Cir. 1981)), the decision not to reopen a
prior claim is a discretionary decision afforded to the Commissioner and not subject to
judicial review. Sanders, 430 U.S. at 108. There exist only two exceptions to this limit on
judicial review: (1) where a de facto reopening has occurred, Coup v. Heckler, 834 F.2d
313, 317 (3d Cir. 1987), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S.
789 (2002), and (2) where a claimant challenges the Commissioner’s decision on
constitutional grounds. Sanders, 430 U.S. at 108; Campos v. Astrue, 373 F. App’x 880,
882 (10th Cir. 2010); Smith v. Berryhill, No. 17-cv-01233-LTB, 2018 WL 3093329 at *9
(D. Colo. June 22, 2018). Ms. Martinez does not argue that either of these grounds
exist. Instead, Ms. Martinez argues the ALJ reached an incorrect determination when
she denied the request to reopen the prior application. (Dkt. #15 at 4-7.) Specifically,

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Ms. Martinez argues the ALJ incorrectly applied res judicata. (Id. at 5.) Ms. Martinez
also argues “there was additional material evidence present in the administrative
record.” (Id. at 6.) This argument goes to the elements to be considered by the ALJ
when deciding whether to reopen a claim. The Court does not have authority to review
this discretionary decision.
To the extent Plaintiff challenges the ALJ’s denial of her request to reopen her
prior application because the ALJ cited to 20 C.F.R. § 404.957 when stating she was
applying res judicata to the previously adjudicated time period, the Court finds this
incorrect citation to the statute to be a harmless technical error. See Doyal v. Barnhart,
331 F.3d 758, 761 (10th Cir. 2003) (“[T]he form of words should not obscure the
substance of what the ALJ actually did.”). See also Gay v. Sullivan, 986 F.2d 1336,
1341 n.3 (10th Cir. 1993) (“[T]he ALJ’s failure to refer expressly to this particular detail
in his questioning of the expert, if error, was minor enough not to undermine confidence
in the determination of this case.” (citing Diaz v. Secretary of Health & Human Servs.,
898 F.2d 774, 777 (10th Cir. 1990)); accord Allen v. Barnhart, 357 F.3d 1140, 1145
(10th Cir. 2004) (discussing harmless technical errors in Social Security appeals). It is
clear from the record that Ms. Martinez’ attorney asked the ALJ to reopen the case and
the ALJ denied that request. (AR 37-38.) Specifically, the ALJ stated: “It was an appeal
and my hands are tied on that.” (AR 37.) The ALJ’s citation to the wrong statute does
not change the substance of what happened, nor does it change this Court’s authority.
Ms. Martinez does not argue that there was a de facto reopening, nor does she
challenge the ALJ’s decision on constitutional grounds.

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As a result, this Court does not have jurisdiction to review the ALJ’s decision to deny
Ms. Martinez’s request to reopen her prior application. Sanders, 430 U.S. at 108;
Campos, 373 F. App’x at 882.
2. Finding Available Jobs Based on the RFC
Ms. Martinez also argues the ALJ erred at step five of the RFC evaluation
process when she found there were jobs available to Ms. Martinez in the national
economy. (AR 25-26.) As noted above (at n. 2), the burden shifts to the Commissioner
at step five. Thus, the Commissioner here was required to prove that Ms. Martinez
could perform, with her RFC, other work in the national economy. Lax, 489 F.3d at
1084. See generally 30 Fed. Proc., L. Ed. § 71:209 (2018) (“The burden of proving that
there is other work which the claimant can perform includes the burden of proving the
claimant’s current physical capacity for work, or his or her [RFC].”).
According to Ms. Martinez, “[b]ased on the findings and limitations made in the
[ALJ]’s RFC analysis, the [Vocational Expert]’s proposed jobs are not appropriate for
Ms. Martinez’ limitations and are not based on substantial evidence.” (Dkt. #15 at 7.)
Ms. Martinez specifically asserts that, after the Vocational Expert testified based on the
initial hypothetical posed to her by the ALJ, and opined “that Ms. Martinez could be
employed within the national economy at three separate positions” (mail clerk, garment
sorter, and production assembler), she subsequently testified that someone with Ms.
Martinez’ RFC could not be employed “in these positions with restrictions on her neck
movement, ability to finger and sort and time task off.” (Id. at 8.)
Further, because “[a]n administrative law judge may not ask a vocational expert a
hypothetical question based on substantial evidence and then ignore unfavorable

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answers,” Campbell v. Bowen, 822 F.2d 1518, 1523 n.6 (10th Cir. 1987), there also is a
question—which I find is unresolved—as to whether certain hypotheticals that the ALJ
posed to the Vocational Expert in this case were or were not based on substantial
evidence, because the ALJ failed to address this in her decision. Thus here, as in
Campbell, “the [V]ocational [E]xpert’s responses to the hypothetical questions asked by
the ALJ cast serious doubt on [Ms. Martinez’] ability to do the work described by” the
Vocational Expert. Id. at 1523. See generally Carolyn A. Kubitschek & Jon C. Dubin,
Social Security Disability Law and Procedure in Federal Court § 3:101 (2018) (“SSDL §
3:101”) (“Substantial evidence does not support a finding of disability where the
[Vocational Expert’s] testimony either is contradictory or responds to an inaccurate
hypothetical.”).
Ms. Martinez also argues that “the proposed jobs given by the [Vocational
Expert] do not properly accommodate each of the significant limitations the Judge
factored into the RFC,” and that “[w]hen jobs proposed by the [Vocational Expert] do not
fully account for the limitations in the RFC, they are not based on substantial evidence
and the commissioner has not met the obligations at step five in showing that a claimant
is not disabled.” (Dkt. #15 at 8.) See also SSDL § 3:101 (“The vocational expert’s
answers to questions which do not take into account all of a claimant’s limitations do not
constitute substantial evidence to support the decision of the agency.”).
The Commissioner, on the other hand, argues that the additional limitations
posed by the ALJ in the follow up questions to the Vocational Expert relating to
restrictions on Ms. Martinez’ “neck movement, ability to finger and sort[,] and time off
task” (Dkt. #15 at 8), were “found by the ALJ to be unsupported by the record,” and

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therefore “the ALJ was not required to pose questions or accept responses to []
questions that included limitations [such as these that] the ALJ did not ultimately assess
in her RFC finding.” (Dkt. #22 at 10-11.) See generally VE Questions § 3:101 (“[T]he
ALJ need only include in his questioning those impairments which the ALJ had found to
be credible,” i.e., “[t]he ALJ may exclude from the hypothetical any alleged impairments
that [she] has properly rejected as untrue or unsubstantiated.”).
The key issue, therefore, is whether, as Ms. Martinez argues, the ALJ included in
her RFC finding any of the limitations addressed by the Vocational Expert in the
modified hypotheticals posed by the ALJ (i.e., those pertaining to occasional handle,
finger, and reach; moving or rotating of the neck; and the ability to stay on task where
the maximum amount of sitting time is one hour), or whether, as the Commissioner
argues, the ALJ “found [these limitations] to be unsupported by the record.” After briefly
discussing the ALJ’s original hypothetical, I will address each of the limitations set forth
in the modified hypotheticals in turn.
The original hypothetical posed by the ALJ to the Vocational Expert concerned
“light work only,” and more specifically set forth Ms. Martinez’ RFC as:
Light work that could not climb any ropes, ladders or scaffolds. Could
only occasionally climb ramps and stairs, balance, stoop, kneel,
crouch and crawl. Would have to avoid hazards like unprotected
heights and dangerous moving machinery. Could not reach
overhead on the right and occasionally overhead reach on the left.
And she’s - - the right is the dominant. On the right dominant, okay?
The would be limited to low stress work, which is going to be defined
as occasional decision making and occasional adapting to workplace
change and would be limited to only occasional public contact and
no work where she would have to travel to unfamiliar places.
(AR 61-62.) The Vocational Expert testified that based on these limitations, Ms.
Martinez would not be able to do any of her past work, “specifically in relation with the
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occasional public contact.” (AR at 62.) She thereafter testified that other light work Ms.
Martinez could do included work as a mail clerk, a garment sorter, and a projection
assembler, and she eroded the numbers of available jobs for each of these specifically
based on Ms. Martinez’ overhead reach limitations. (AR 62-63.)
a. Occasional handle, finger, and reach limitation
When asked by the ALJ whether there “[w]ould [] be any jobs at light [i.e., light
work] with the restrictions including the occasional handle, finger and reach,” the
Vocational Expert responded in the negative. (AR 64.) Later, in responding to the ALJ’s
specific questions about the “reach, handle, finger and feel” requirements of each
possible job, the Vocational Expert clarified that feeling was not present in any of these
jobs, but that “reach, handle, [and] finger are all frequent,” and “if it were anything less
than frequent, that would eliminate these jobs.” (AR 63-64.) In the ALJ’s written
decision, in addition to including the claimant’s inability to reach overhead with her right
upper extremity, and her ability to occasionally reach overhead with her left upper
extremity (which the Vocational Expert factored in to her available jobs analysis by
eroding the numbers), the RFC finding included limitations of “frequently reach[ing] in all
other directions bilaterally,” and “frequent handling and fingering bilaterally.” (AR at 21.)
Because these “additional limitations” are consistent with the jobs proposed by the
Vocational Expert, and were in fact addressed by her, I conclude the ALJ’s finding in
this regard was based on substantial evidence.
b. Rotation of the neck
At the hearing, Ms. Martinez testified she cannot drive “[b]ecause the repetition of
the movement of the head . . . causes extreme pain in [her] neck and gives [her]

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headaches.” (AR at 51.) When specifically asked by the ALJ, she confirmed she has
“problems moving [her] head around,” and the “[r]epetitive movement . . . hurts my
neck.” (AR at 52.)
When questioning the Vocational Expert, the ALJ asked “about rotation of the
neck” and, more specifically, “if a person is going to be able to only occasionally rotate
their neck side to side, how would that impact these jobs?” (AR at 64.) The Vocational
Expert replied, “it would eliminate the jobs as an individual is going to need to rotate, as
well as, use flection and extension to complete the essential job duties.” (Id.) The
Vocational Expert further clarified that with a person who could frequently rotate their
neck, “there would be some exceptions,” but that “an individual is going to have to be
able to do neck rotation pretty much at will to be able to complete the job duties.” (Id.)
In her decision, the ALJ noted that Ms. Martinez had testified that “she has pain
in her neck and difficulty moving it around.” (AR at 22.) According to the ALJ, although
“the claimant’s medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms . . . the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely consistent
with the medical evidence and other evidence in the record for the reasons explained in
this decision.” (Id.) But the ALJ does not elaborate on which of Ms. Martinez’ statements
“are not entirely consistent with the medical [and other] evidence.” (Id.) Nowhere in her
decision, for example, does she specifically address whether Ms. Martinez’ testimony
concerning her difficulty in rotating or moving her neck around was inconsistent with the
medical evidence, prompting her to discount or reject it. Nor did the ALJ address
whether Ms. Martinez’ medically determinable impairments could reasonably be

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expected to cause this symptom. Therefore, contrary to the Commissioner’s assertion,
the ALJ did not find the limitation on Ms. Martinez’ neck movement “to be unsupported
by the record” (Dkt. #22 at 10), nor did she find Ms. Martinez’ testimony concerning this
limitation was not credible.
As a result, I conclude the record is incomplete with respect to this particular
limitation which, if applicable, would, as the Vocational Expert testified, be inconsistent
with a finding that jobs existed in the national economy that Ms. Martinez could perform.
Remand is therefore appropriate on this issue, and the ALJ is directed to make specific
findings regarding whether Ms. Martinez has any limitations on her ability to move or
rotate her head or neck from side to side and, if so, whether this determination alters
her conclusion that there are jobs available to Ms. Martinez.
c. One hour maximum sit time
Ms. Martinez also testified during the hearing that she has difficulty sitting for
long periods of time, and that she can only sit for 30 minutes to an hour, after which her
doctors have advised her to “move around,” which she does by “get[ting] up and
walk[ing] around the block or [] around the house.” (AR at 55-56.) Likely based on this
testimony, the ALJ asked the Vocational Expert whether “for these jobs, if . . . the
maximum amount of time that [a claimant] can sit uninterrupted is one hour, before
needing to get up, [and] move around for five minutes,” would that “impact these jobs?”
(AR at 65.) The Vocational Expert replied that “if an individual needs to move around
and they’re off-task during that five minute period, it will be greater than what employer’s
[sic] will tolerate throughout the day”—i.e., it would eliminate these jobs—but “[i]f they’re
able to stay on-task and stand up, it would be more feasible.” (Id.)

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In her decision, the ALJ noted Ms. Martinez testified “that she can sit for about 30
to 60 minutes before she starts to feel pain in her lower back.” (AR at 22.) The ALJ also
appeared to make the specific finding that Ms. Martinez “can sit for 30 to 60 minutes.”
(Id.) But nowhere in her decision does the ALJ address whether Ms. Martinez, after
sitting for an hour, can then stand up for five minutes while staying on task. Nor does
the ALJ address whether, consistent with Ms. Martinez’ testimony at the hearing, in
addition to standing up every hour, Ms. Martinez also needs to move around—which
presumably would mean she would be off-task. Such a finding would be important since
if this were the case (i.e., if Ms. Martinez has to both stand and move around, taking her
off-task), she would not be eligible (according to the Vocational Expert) for the three
jobs described by the Vocations Expert.
Accordingly, I conclude the record below is incomplete with respect to this
particular limitation that is part of the ALJ’s RFC findings, and therefore a remand is
necessary for the ALJ to make specific findings consistent with the discussion above.
Conclusion
For the reasons set forth above, the Administrative Law Judge’s decision is
REVERSED and REMANDED for further proceedings consistent with this Opinion and
Order, and such other proceedings as the ALJ may deem appropriate.
Dated this 20th day of December, 2018.

BY THE COURT

_________________________
N. Reid Neureiter
United State Magistrate Judge
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