Martinez v. Astrue

Filing 24

MEMORANDUM OPINION - A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
JOHN M. MARTINEZ,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

7:12CV5009

MEMORANDUM OPINION

This matter is before the Court on the appeal of
plaintiff, John Martinez (“Martinez”), of a final decision by the
Commissioner of the Social Security Administration denying
Martinez’s application for disability benefits.

The Court finds

that the decision of the Administrative Law Judge (“ALJ”) is
supported by the substantial evidence on the record.
PROCEDURAL BACKGROUND
Martinez filed applications for disability insurance
benefits and supplemental security income and alleged disability
beginning December 31, 2008 (Tr. 17).

The Social Security

Administration denied these applications on May 27, 2009, and
again on September 14, 2009 (Id.).

After the ALJ hearing on June

16, 2011, the ALJ issued an unfavorable opinion on July 29, 2010
(Tr. 14).

The Appeals Council then denied Martinez’s request for

review (Filing No. 1, at 2).

The Court will review the ALJ’s

decision, which stands as the Commissioner’s final decision
(Id.).
FACTUAL BACKGROUND
In relevant part, Martinez is a thirty-nine-year-old
man with a general equivalency diploma (Tr. 173, 366).

Martinez

has past work experience as an auto dealer, construction worker,
livestock attendant, painter, tractor operator, and tire repairer
(Tr. 188, 206, 259, 262).

Martinez alleges disability due to

neuropathy, myopathy, thyroid problems, hypertension, chronic
pain, depression, diabetes, and “muscle problems” beginning
December 31, 2008, at age thirty-four.

Tr. 145, 155, 187, 198.

In November 2008, Martinez was involved in a motor
vehicle accident (Tr. 312).

At the hospital, Martinez complained

of neck and shoulder pain (Tr. 313).

Upon examination, Martinez

had tenderness and pain in his neck with movement, normal range
of motion, no tenderness in his back, and “good grip and hand
sensation” (Tr. 311-12).

A magnetic resonance imaging (“MRI”)

scan of his back showed disc protrusion in his middle back but no
significant cervical spinal abnormalities (Tr. 331, 335).

The

examining physician assessed cervical strain and prescribed
oxycodone for Martinez’s pain (Tr. 313-14).
Over the course of his claimed disability, Martinez had
several examinations.

No less than ten doctors have examined

Martinez or reviewed his file.

Five doctors have examined

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Martinez at his own behest, including the following:

Drs. José

Cardenas, Jeffrey Brittan, Pariwat Thaisetthawatkul, Omar
Jimenez, and Burt McKeag.

Generally, Martinez complained of

pain, particularly in the back due to mildly exaggerated thoracic
kyphosis, slight thoracic curvature, very mild degenerative
changes, and mild disc protrusion with no significant effacement
of the spinal cord or stenosis; Martinez also experienced a full
range of movement except for his left shoulder and he responded
well to painkillers (January 2009, Tr. 298-301; February 2009,
Tr. 272, 302; March 2009, Tr. 275-77; April 10, 2009, Tr. 354-55;
April 13, 2009, Tr. 357-59; June 2009, Tr. 411, 414; August 2009,
Tr. 430-31; September 2009, Tr. 436; September-December 2009, Tr.
433-55).

Besides this consistent pattern, other assessments

include the following.
In 2009, doctors twice instructed Martinez to refrain
from work for short periods of time:

once for three days and

once for two days (Tr. 273-74, 277).

Plaintiff’s physician, Dr.

José Cardenas, noted that Martinez’s electromyography results
showed evidence of diffuse sensorimotor axonal polyneuropathy and
possible lower cervical radiculopathy (Tr. 359, 524-27).
In June 2009, Martinez saw his treating physician, Dr.
Jeffrey Brittan, for treatment of fibromyalgia and sleep apnea
(Tr. 397).

Dr. Brittan ordered further sleep testing and

prescribed additional pain medication (Tr. 397).

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In September

2009, another one of Plaintiff’s physicians, Dr. Pariwat
Thaisetthawatkul assessed peripheral neuropathy and nocturnal leg
movement (Tr. 438).
Also in September 2009, Martinez visited another one of
his physicians, Dr. Omar Jimenez, who noted that Martinez had “a
very small disc protrusion and it is unlikely it is resulting in
[Martinez’s] symptoms” (Tr. 430).

He determined that Martinez

suffered from thoracic back pain that was most likely related to
muscle strain and obesity though Dr. Jimenez did not recommend
surgery (Tr. 430).
Martinez also saw another doctor, Dr. Burt McKeag.

Dr.

McKeag assessed neuropathic pain, fibromyalgia, lumbosacral
spondylosis, morbid obesity, thoracic disc displacement without
myelopathy, lumbago, brachial neuritis, and cervicalgia (Tr. 459,
463, 465, 470-71, 474, 477, 479, 483, 493, 499, 503, 522).

On

March 2, 2011, Dr. McKeag noted that he discontinued Martinez’s
oxycodone for the following reasons:

Dr. McKeag did not believe

the drugs were helping Martinez; Martinez had two urine drug
screens that were negative for oxycodone even though he had a
prescription for the drug; Dr. McKeag had concerns of diversion;
and Martinez reported that he “misplaced” his pain medications in
his nephew’s car in a non-labeled container resulting in a police
inquiry (Tr. 458, 468).

Dr. McKeag noted that Martinez became

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angry and frustrated about having his medication stopped (Tr.
458).
From January 2010 to February 2011, Martinez saw Dr.
Brittan for general health care (Tr. 442-52).

He discussed his

weight problems; reported pain, anxiety, and insomnia; and
requested pain medication (Tr. 442-52).
After these diagnoses by Martinez’s doctors, the state
agency requested the following five doctors review Martinez’s
claims:

Drs. Lisa Jones, Linda Schmechel, Rebecca Brayman, Glen

Knosp, and James Bane.
On May 18, 2009, Dr. Jones examined Martinez (Tr. 36470).

Martinez reported that he received substance abuse

treatment (Tr. 367).

Martinez further reported that his

inability to work and provide for his family caused him to have
some panic symptoms, feel anxious, stressed out, and down about
himself (Tr. 367-68).

Dr. Jones noted that Martinez had no

restrictions in his activities of daily living; no difficulties
maintaining social functioning; and no recurrent episodes of
deterioration when stressed (Tr. 368).

Dr. Jones assessed

adjustment disorder with mixed anxiety and depressed mood (Tr.
369).

She assigned a global assessment of functioning (GAF)

score of 75 and concluded that Martinez’s “prognosis is good in
terms of mental health issues” (Tr. 369).

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On May 20, 2009, Dr. Schmechel reviewed Martinez’s
medical records and completed a psychiatric review technique form
at the request of the state agency (Tr. 371- 85).

Dr. Schmechel

found that Martinez had mild limitations in maintaining
concentration, persistence or pace, but no limitations in
activities of daily living and maintaining social functioning
(Tr. 381).

Dr. Schmechel also found that Martinez’s “mental

condition would not severely limit his work abilities” (Tr. 383).
In September 2009, Dr. Brayman also completed a
psychiatric review technique form (Tr. 426-27).

Dr. Brayman

acknowledged that Martinez was diagnosed with adjustment
disorder, but noted that his mental health condition was nonsevere and would not prevent him from performing work activities
(Tr. 426).
Dr. Knosp reviewed Martinez’s medical records and
completed a physical RFC assessment form at the request of the
state agency (Tr. 386-94).

Dr. Knosp opined that Martinez could

lift and carry 20 pounds occasionally and 10 pounds frequently;
stand/walk or sit for about 6 hours in an 8-hour workday; and
push or pull without limitation (Tr. 387).

Dr. Knosp summarized

the medical evidence and determined that Martinez’s physical
examinations did not support his claims of disabling physical
impairments (Tr. 393).

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On September 10, 2009, Dr. Bane reviewed Martinez’s
medical records and completed a physical RFC assessment form at
the request of the state agency (Tr. 416-25).

Dr. Bane reached

the same conclusion about Martinez’s RFC (Tr. 417).

Dr. Bane

determined Martinez did not meet or equal the relevant listings
(Tr. 425).

Dr. Bane noted that Martinez’s claims of myopathy and

diabetes were not supported by diagnostic or laboratory testing
results (Tr. 425).

He also found that Martinez’s alleged

hypertension and thyroid problems were controlled with medication
(Tr. 425).

Ultimately, Dr. Bane determined the allegations of

disabling physical impairments were not fully credible and that
Martinez could perform work activity consistent with his RFC
finding (Tr. 425).
On January 6, 2010, Martinez’s primary physician, Dr.
Brittan completed a questionnaire form regarding Martinez (Tr.
528-29).

Dr. Brittan indicated that Martinez had peripheral

neuropathy and generalized weakness and that his prognosis was
“poor” (Tr. 528).

He also noted that Martinez’s “weakness”

limited his daily activities and that his ability to work was
limited by left shoulder pain (Tr. 529).

Dr. Brittan opined that

Martinez should not bend, twist, or lift more than 5 to 10 pounds
(Tr. 529).
In May 2009, Martinez completed a pain questionnaire
form (Tr. 200-05).

Martinez reported pain in his back, feet,

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legs, and hands (Tr. 202).
(Tr. 200).

He also reported problems sleeping

Martinez took medication for his symptoms and he

stated the medication “helps a little,” “kind of works,” and
“relieves some pain” (Tr. 202-03).

Martinez provided for his own

personal care but could not cook or perform household chores due
to pain in his hands, feet, and legs (Tr. 200).

Martinez drove a

car, watched television, and attended his children’s soccer games
(Tr. 200-01).

Martinez could stand for 15-20 minutes at a time,

sit for an hour to an hour and a half, walk half a block, and
climb three stairs at a time before experiencing pain (Tr. 201).
ADMINISTRATIVE HEARING
On January 6, 2010, the ALJ and Martinez’s attorney
questioned Martinez regarding his conditions.
treating physicians:
46).

Martinez had three

Drs. Brittan, Cardenas, and McKeag (Tr.

Martinez took methadone, Lyrica, tramadol, CPAP, stool

softener, and Tums (Tr. 46-47).

Martinez also elevated his legs

and used wraps or heating/cooling pads to manage his pain (Tr.
52-53).

Martinez described his average daily activities which

included resting, sitting, interacting with his children, walking
a little bit, watching television, reading, and sometimes
cooking, cleaning, laundry, and shopping (Tr. 48-51).

Martinez

also testified that he had difficulties performing tasks with his
hands, such as holding a bar of soap, reeling in fish, and
handling screwdrivers (Tr. 52).

Martinez then testified that he

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napped three times a day and experienced approximately five “bad”
days a month where he could not get out of bed (Tr. 57, 54).
Martinez also testified that he was preparing to undergo lap band
surgery to hopefully relieve some symptoms from which he suffered
(Tr. 56-57).
Then, the ALJ called the vocational expert (“VE”),
Hassert, to respond to three hypothetical questions.

First, the

ALJ asked the VE what jobs were possible for a hypothetical
person of Martinez’s age, education, and work experience, who
could perform “light exertional work,” occasionally twist, bend,
stoop, kneel, crouch, crawl, but could not climb or reach
overhead, and could handle frequent -- though not constant -simple routine, repetitive tasks (Tr. 60).

The VE responded that

this hypothetical person could work as a photo counter clerk,1
storage rental clerk,2 or a sales attendant clerk3 (Tr. 61).
Second, the ALJ modified the first hypothetical to
exclude the ability to twist or to bend (Tr. 61).

The VE

testified that such a person could not work as a storage rental
clerk or a sales attendant clerk; however, such a person could

1

Dictionary of Occupational Titles (“DOT”) code 249.366010; 300 Nebraska (“NE”) jobs; 51,200 national (“US”) jobs.
2

DOT code 295.367-026; 500 NE jobs; 147,000 US jobs.

3

DOT code 299.677-010; 3,000 NE jobs; 79,600 US jobs.
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work as a photo counter clerk, a photocopy machine operator,4 or
a recreation aide5 (Tr. 60-61).
Third, the ALJ asked the VE what jobs were possible for
a hypothetical person of Martinez’s age, education, and work
experience, who could perform “sedentary work,” occasionally
kneel, crouch, crawl, but could not climb, twist, bend, or reach
overhead, and could handle frequent -- though not constant -simple routine, receptive tasks (Tr. 62).

The VE responded that

this hypothetical person could work as a document preparer,6
eyeglass frame polisher,7 or ampule sealer8 (Tr. 62-63).
Following the ALJ’s hypothetical questions, Martinez’s
attorney asked four hypothetical questions.

First, the attorney

modified the ALJ’s third hypothetical and changed “frequent
handling” to “occasional handling” (Tr. 63).

The VE responded

that this hypothetical person could work as a surveillance

4

DOT code 207.685-104; 160 NE jobs; 19,900 US jobs.

5

DOT code 195.367-030; 200 NE jobs; 38,500 US jobs.

6

DOT code 249.587-018; 160 NE jobs; 30,000 US jobs.

7

DOT code 713.684-038; 116 NE jobs; 28,600 US jobs.

8

DOT code 559.687-014; 300 NE jobs; 27,400 US jobs.
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systems monitor,9 credit checker,10 or an elections volunteer11
(Tr. 64).
Second, the attorney asked the VE whether employers
typically supply a place to lie down during breaks for
hypothetical persons of Martinez’s age, education, and work
experience (Tr. 64).

The VE responded “no.”

Third, the attorney asked the VE what effect a
hypothetical person of Martinez’s age, education, and work
experience would experience if the he required one or two extra
breaks per day (Tr. 64).

The VE replied that the work available

to such a hypothetical person would not allow additional breaks.
Fourth, the attorney asked the VE what effects a
hypothetical person of Martinez’s age, education, and work
experience would experience if he required a work station where
he could elevate his feet to waist level for 30 minutes per day
(Tr. 65).

The VE responded that, if such a person could not

elevate their legs during breaks, elevating legs at the work
station was typically unacceptable.

9

10

DOT code 379.367-010; 100 NE jobs; 21,200 US jobs.
DOT code 237.367-014; 300 NE jobs; 14,000 US jobs.

11

Although the VE failed to offer DOT information, she
mentioned that this position is typically volunteer based.
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THE ALJ’S FINDINGS
The ALJ found that Martinez had not engaged in
substantial gainful employment since December 31, 2008 (Tr. 19).
The ALJ concluded Martinez had the following impairments:
fibromyalgia, morbid obesity, cervicalgia, thoracic disc
displacement with myelopathy, lumbosacral spondylosis, brachial
neuritis, sensory axonal polyneuropathy, and obstructive sleep
apnea (Id.).

She did not conclude, however, that Martinez had 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 (Tr. 21).

The ALJ determined that Martinez

maintained a “light work” residual functional capacity (“RFC”)
and could have stood, sat, or walked for six out of eight hours a
day, occasionally performed postural activities, performed
simple, routine, and repetitive work, and could not reach
overhead or climb (Tr. 22).

The ALJ determined Martinez could

not have performed his previous work (Tr. 26).

The ALJ also

determined that Martinez could have performed work as a photo
counter clerk, storage rental clerk, or a sales attendant clerk
(Tr. 27).

Consequently, the ALJ found that Martinez was not

disabled from December 31, 2008, onward (Tr. 28).
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits,
the district court's role under 42 U.S.C. § 405(g) is limited to

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determining whether substantial evidence in the record as a whole
supports the Commissioner's decision.
1190, 1193 (8th Cir. 1995).

Harris v. Shalala, 45 F.3d

“Substantial evidence is less than a

preponderance, but enough that a reasonable mind might accept it
as adequate to support a decision.”
626, 631 (8th Cir. 2008).

Juszczyk v. Astrue, 542 F.3d

If it is possible to draw two

inconsistent positions from the evidence and one of those
positions represents the Commissioner's findings, we must affirm
the denial of benefits.

Id. (quotations and citations omitted).

Thus, the Court will uphold the Commissioner’s final decision “if
it is supported by substantial evidence on the record as a
whole.”

Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008).
LAW & ANALYSIS
Martinez’s argument rests on a sole contention, that

the substantial evidence does not support the ALJ’s determination
of Martinez’s RFC because the ALJ improperly used daily
activities to discount Martinez’s credibility.
4-8.

Filing No. 17, at

The Court disagrees and will affirm the ALJ decision.
In making an RFC determination, the ALJ is required to

consider the “claimant's own descriptions of his limitations”
unless the ALJ makes a proper credibility determination and finds
that a Martinez's statements regarding his own pain are not
credible.
Cir. 2001).

Pearsall v. Massanari, 274 F.3d 1211, 1217–18 (8th
To make such a finding, an ALJ must give full
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consideration to all of the evidence presented relating to
subjective complaints, including the claimant's prior work
record, and observations by third parties and treating and
examining physicians relating to: (1) claimant's daily
activities; (2) the duration, frequency, and intensity of the
pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness, and side effects of medication; and (5) functional
restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.

1986).
Consequently, an ALJ is required to make an “express
credibility determination” when discrediting a social security
claimant's subjective complaints.
971–72 (8th Cir. 2000).

Lowe v. Apfel, 226 F.3d 969,

The ALJ, however, is “not required to

discuss methodically each Polaski consideration.”

Id. at 972.

Deference is generally granted to an ALJ's determination
regarding the credibility of a claimant's testimony.

Dunahoo v.

Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (stating that if an
ALJ provides a “good reason” for discrediting claimant's
credibility, deference is given to the ALJ's opinion, “even if
every factor is not discussed in depth.”).
On page 25 of the transcript, the paragraph in question
states the following in its entirety:
After considering the evidence of
the record, I find that the
claimant’s medically determinable
impairments could reasonably be
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expected to produce the alleged
symptoms, but that the claimant’s
statements concerning the
intensity, persistence and limiting
effects of these symptoms are
generally not fully credible. As
stated above, the claimant alleges
he is unable to work. However, the
record establishes that the
claimant is capable of working.
The claimant has worked since his
alleged onset date and, although
his work activity did not rise to
the substantial gainful activity
level, it demonstrates he is able
to work. The claimant is also able
to engage in a wide range of
activities of daily living that
could translate into performing a
job including using a computer,
some housework, and cooking. While
the claimant does not have
consistent work history prior to
2009, this is only one factor that
I considered (Exhibit 7D).
Therefore, the claimant is capable
of performing basic work activities
consistent with the residual
functional capacity stated above.
Tr. 24.

In this paragraph, the ALJ expressly determines the

credibility of Martinez’s subjective statements in regards to
Martinez’s RFC.

This determination is required by law and the

daily activities of the claimant is a factor for the ALJ to
consider.

Polaski, 739 F.2d at 1322.
In addition, numerous examples in the record offer good

reason for the ALJ’s disregard of Martinez’s subjective
statements regarding the severity of his conditions.

These

reasons include lack of objective medical evidence, examinations

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which illustrated Martinez was not as severely impaired as he
subjectively alleged, Martinez’s work during his alleged
disability, and Martinez’s failure to abide by his treatments.
First, the lack of objective medical evidence was a
factor in the ALJ’s determination.

Tr. 25.

The absence of an

objective medical basis which supports the degree of severity of
subjective complaints alleged is one factor in evaluating the
credibility of the complaints.

Polaski, 739 F.2d at 1322.

Second, several examinations illustrated that
Martinez’s impairments were not as severe as he alleged.
Subjective complaints may be discounted if there are
inconsistencies in the evidence as a whole.

Id.

Specifically,

several examinations reported normal range of motion in
Martinez’s extremities, normal muscle strength and tone, normal
reflexes, equal hand grip, and normal gait.
300, 310-11, 354, 437-38.

Tr. 273, 276-77,

In two examinations, doctors recommend

only two or three days rest from work, which implies an ability
to return to work.

Tr. 273-74, 277.

Several diagnostic tests

revealed no significant abnormalities in Martinez’s back.
312, 327-31, 335, 532-34.

Tr.

One diagnostic test revealed a disc

protrusion with “no significant effacement of the spinal cord”
which did “not explain patient’s symptoms.”

Tr. 430.

Finally,

three doctors directly contradicted Martinez’s subjective

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statements of pain, including one doctor who directly challenged
Martinez’s claims as not credible.

Tr. 393, 425, 426.

Third, the ALJ considered Martinez’s ability to hold
employment after his onset date.

Tr. 25.

The ALJ may consider

the ability of a claimant to work after the alleged onset of
disability when determining the credibility of a claimant’s
subjective claims of pain.

See Goff v. Barnhart, 421 F.3d 785,

792-93 (8th Cir. 2005) (citing Orrick v. Sullivan, 966 F.2d 368,
370 (8th Cir. 1992)) (sustaining the ALJ’s determination that the
claimant’s claims of pain were incredible on the basis that
claimant continued to work after her alleged onset date).
Martinez continued to work full-time for five months after the
onset of his alleged disability.

Tr. 259.

Fourth, the record illustrates that Martinez did not
abide by his doctors’ prescribed treatments for his pain.

Non-

compliance with treatment is a proper consideration in
determining the credibility of a claimant’s subjective claims of
pain.

Choate v. Barnhart, 457 F.3d 865, 872 (8th Cir. 2006);

Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001).

In

this case, Martinez would run out of drugs prematurely, he failed
to take his prescribed oxycodone at least during the time period
in which he was screened, and he failed to appear for nerve
conduction study.

Tr. 26, 411, 414, 435, 458, 468.

Also of

consideration are Martinez’s visits to one of his physicians, Dr.

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McKeag, in 2011 which indicated noncompliance with narcotic
medication and its instructions.

See Tr. 458-70.

CONCLUSION
The substantial evidence in the record as a whole
illustrates that the ALJ did not improperly discount Martinez’s
subjective claims of the persistency and severity of pain.

The

ALJ’s examination of Martinez’s daily activities was a necessary
and proper factor in determining the credibility of Martinez’s
subjective complaints.

Furthermore, numerous other

considerations in the record as a whole support the ALJ’s
conclusion pursuant to Polaski.
of benefits.
at 631.

The Court will affirm the denial

See Dunahoo, 241 F.3d at 1038, Juszczyk, 542 F.3d

A separate order will be entered in accordance with this

memorandum opinion.
DATED this 1st day of October, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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