Martinez v. Social Security Administration

Filing 24

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 19 MOTION to Remand to Agency. Objections to R&R due by 3/7/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FELIX MARTINEZ,
Plaintiff,
v.
No. 1:16-cv-01413-WJ-KRS
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
Plaintiff Felix Martinez seeks review of the Social Security Administration’s denial of his
applications for disability insurance benefits and supplement security income. See 42 U.S.C. §§
423 & 1381a. Pursuant to an order of reference from Chief United States District Judge William
Johnson to propose findings and recommend a disposition, see 28 U.S.C. § 636(b)(1)(B), the
Court has reviewed the administrative record and considered Martinez’s motion to reverse and
remand the agency’s decision, the Commissioner’s response in opposition, and Martinez’s reply.
(See Docs. 13, 19, 21, & 22). Because the Administrative Law Judge (“ALJ”) failed to properly
evaluate Martinez’s credibility in determining he could perform sedentary work, the Court
RECOMMENDS Martinez’s motion be GRANTED and the matter be REMANDED to the
agency for additional proceedings.
I.

BACKGROUND

Martinez alleged disability beginning June 2, 2012 at age forty four and continuing until
December 31, 2017, the date he last qualified for benefits. 1 (AR 18). Following a hearing, ALJ
1

At the hearing, the ALJ noted that Martinez remained insured through at least the end of 2018. (AR 38). The
precise date of last insured is not challenged here and, in any event, not outcome determinative because Martinez
additionally seeks supplemental security income.
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Michelle Lindsay denied Martinez’s application for benefits. (AR 15-33). At step three of the
five-part framework 2 used to evaluate disability, the ALJ concluded that Martinez’s internal knee
derangement, gout, and degenerative joint disease of the shoulders, conditions which the ALJ
determined were severe, neither met nor equaled a listed impairment the agency has determined
to be presumptively disabling. (AR 21-22). At steps four and five, the ALJ decided that while
Martinez could not return to his past heavy labor positions, he retained the residual functional
capacity (“RFC”) to perform sedentary work 3 and qualified for jobs abundant in the national
economy such as addresser, toy stuffer, and document preparer. (AR 22-29). The ALJ’s decision
became the agency’s final action on November 1, 2016 when the Appeals Council denied
review. (AR 1-5). This appeal followed. (Doc. 1).
II. STANDARD OF REVIEW
This Court reviews the ALJ’s decision to determine whether it is supported by substantial
evidence and the ALJ applied the correct legal standards. See Hendron v. Colvin, 767 F.3d 951,
954 (10th Cir. 2014). If substantial evidence supports the conclusion that the plaintiff is not
disabled and the ALJ followed the law, the plaintiff is not entitled to relief. See Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term “substantial evidence” means that
which “a reasonable mind might accept as adequate to support a conclusion.” Id. at 1118
(citation and internal quotation marks omitted). Even if the Court could reach the opposite
conclusion, the decision must stand if the record as a whole is not “overwhelmed by other
2

The five-part sequential analysis is used to determine disability where, as here, a plaintiff’s application has been
denied both initially and on reconsideration. See 20 C.F.R. §§ 416.920(a)(4)(i) – (iv)404.1520(a)(4)(i)-(v). The
framework asks whether the plaintiff (1) has engaged in “substantial gainful activity” (Step 1); (2) has a “severe
medically determinable . . . impairment . . . or a combination of impairments” that either has lasted or is expected to
last at least one year (Step 2); (3) has impairments that meet or equal one of the presumptively disabling
impairments the agency has listed (Step 3); (4) is unable to perform her “past relevant work” (Step 4); and (5)
retains the residual functional capacity to perform work in the national economy in light of her age, education, and
work experience (Step 5). Id. The parties do not challenge the ALJ’s determination that Martinez has not engaged in
substantial gainful activity since his onset date and that he suffers from severe impairments at steps one and two
respectively. For the sake of brevity, the Court does not further recount them.
3
The ALJ’s RFC of sedentary work was further limited: “[Martinez] can only occasionally climb stairs and ramps,
balance, and crouch; never climb ladders, ropes, or scaffolds; and, he must avoid unprotected heights.” (AR 22).
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evidence” to the contrary or unless a “mere scintilla” supports it. Salazar v. Barnhart, 468 F.3d
615, 621 (10th Cir. 2006).
III. ANALYSIS
Martinez challenges the ALJ’s decision on three grounds: the ALJ failed to (1) properly
evaluate Martinez’s credibility in rejecting the limiting effects of his symptoms and pain; (2)
conduct a function-by-function analysis in crafting Martinez’s RFC; and (3) correctly calculate
the number of jobs available in the national economy that Martinez is capable of performing.
Because the Court concludes that the ALJ improperly evaluated Martinez’s credibility, his selfdescribed limitations, if credited, will affect the ALJ’s RFC on remand, and the step-five jobs’
finding is dependent on an RFC that incorporates all Martinez’s functional limitations, the Court
recommends a remand on the first issue. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th
Cir. 2003).
A. Adverse Credibility Finding
If Martinez is believed, he cannot perform sedentary work. At the administrative hearing,
Martinez testified that his pain precludes him from walking more than a block, even with a cane,
standing more than five to ten minutes, sitting for more than ten to fifteen minutes, and lifting
more than five to ten pounds. (AR 51-53). Under agency guidelines, however, sedentary work
requires an ability “to walk 2 hours out of an 8-hour workday” and sit “about 6 hours of an 8hour workday.” SSR 96-6p, 1996 SSR LEXIS 6, *8-9. The ALJ did not credit Martinez’s selfdescribed limitations and therefore did not include them in the RFC. Although Martinez’s
“impairments could reasonably be expected to cause the alleged symptoms,” the ALJ found
Martinez’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible[.]” (AR 23). Martinez argues this adverse credibility
determination amounts to reversible error.
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Although “[c]redibility determinations are peculiarly the province of the finder of fact,”
an adverse finding must “be closely and affirmatively linked to substantial evidence and not just
a conclusion in the guise of findings.” Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988).
In practical terms, “a conclusion in the guise of findings” means the ALJ’s reliance on
boilerplate language reciting the regulations governing credibility determinations and concluding
“that full consideration ha[s] been given to the subjective complaints in accordance with the
[regulatory factors].” Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004). The purpose of
the ALJ’s obligation to closely and affirmatively link findings to the record is to ensure that a
reviewing court can meaningfully “assess whether relevant evidence adequately supports the
ALJ’s conclusion [.]” Id. at 679.
In evaluating a plaintiff’s claims of disabling limitations, the ALJ is required to consider
“the objective medical evidence; an individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information provided by medical sources and
other persons; and any other relevant evidence in the individual’s case record.” SSR 16-3p, 2016
WL 1119029, at *4 (March 16, 2016). The ALJ also examines (1) the plaintiff’s daily activities;
(2) “the location, duration, frequency, and intensity of pain or other symptoms”; (3) precipitating
and aggravating factors; (4) medication taken for the pain or symptoms, including “type, dosage,
effectiveness, and side effects”; (5) other forms of treatment or others measures used to alleviate
symptoms; and (6) other factors that concern the plaintiff’s “functional limitations and
restrictions due to pain or other symptoms.” Id., at *7.
The Court cannot discern where the ALJ undertook the required analysis. The ALJ’s
decision makes a single conclusory reference to Martinez’s credibility at the beginning of the
RFC discussion. (AR 23) (concluding that Martinez’s “statements concerning the intensity,
persistence, and limiting effect of these symptoms are not entirely credible for the reasons
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explained in the decision”). But the Tenth Circuit has held such language alone to be
insufficient. See Hardman, 362 F.3d at 678. Although promised by the ALJ, there are in fact no
reasons given, which makes it impossible to determine whether evidence supports them. Instead,
the ALJ simply recites the medical evidence and in a way that lends support Martinez’s
subjective complaints.
For example, the ALJ observed Martinez had diagnoses of gout and osteoarthritis;
underwent multiple knee surgeries; diagnostic imagining establishing degenerative changes in
the spine, knees and shoulders, joint effusion, meniscal tears, focal bone marrow edema, and
inflammation and cartilage softening of the patella; and reported knee, shoulder, hip, and hand
pain to his medical providers. (AR 22-27). In terms of daily living, the ALJ highlighted
Martinez’s reports to his doctor that he could not take his socks off because of an inability to
bend his knees and that the same doctor observed Martinez was somewhat limited by pain most
of the time. (AR 26). The ALJ also detailed an exchange between Martinez and his doctor where
the doctor explained Martinez “might not get better from the [knee] surgery.” (AR 25).
According to the ALJ, Martinez reported using a cane to ambulate and had difficulty
completing physical therapy because “exercise seemed to increase his pain.” (AR 26-27). The
ALJ referenced a non-medical “pain questionnaire” from Martinez and a “function report” from
his significant other. (AR 26). As described by the ALJ, Martinez reported in his questionnaire
that he has “constant pain in his feet, knees and legs.” (Id.). Martinez’s significant other
confirmed he had difficulty bending, had to lay down to put his clothes on, did laundry and light
cleaning, socialized, and went to church twice a week. (AR 26-27). The ALJ herself agreed that
Martinez’s “limitations are primarily due to pain” and actually discounted the opinions of nonexamining physicians because they failed to account for the limiting effects of that pain. (AR
27).
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From the discussion of the evidence in the case, the Court does not understand why
Martinez lacks credibility and why his complaints of pain and limitations should be discounted.
The ALJ’s determination lacks findings that are closely and affirmatively linked to the record. In
a final sentence at the conclusion of the RFC analysis, the ALJ intimates that Martinez is capable
of sedentary work because of his abilities to perform daily activities and a part-time job that
requires him to frequently get in and out of a car. Both of these factors obviously could support
rejecting Martinez’s subjective contentions. 4 The problem is there is no general or specific
discussion of how (and what) daily activities show Martinez is untruthful and can, in fact,
undertake sedentary work. In terms of employment, the ALJ acknowledged the part-time job
does not amount to substantial gainful activity and the ALJ did not cite this employment as a
basis to reject Martinez’s credibility. The ALJ did not address the dire economic circumstances
that Martinez says led him to work in the first place or the pain the part-time job causes him.
(AR 38; 56). Finally, the ALJ did not explain why Martinez getting in and out of a car as part of
his job renders his testimony incredible and proves him more capable of sustained fulltime
sedentary work.
There may well have been reasons for discounting Martinez’s subjective complaints of
pain and limitations in arriving at an RFC of sedentary work. The Court, however, cannot
discern them here. The Court therefore recommends that the matter be remanded to the ALJ to
properly evaluate Martinez’s credibility, formulate an RFC that includes, if appropriate,
Martinez’s self-described limitations, and determine based on a legally sound RFC if sufficient
jobs in the national economy exist that Martinez can perform.

4

The Commissioner relies heavily on portions of the ALJ’s recitation of medical evidence and record that the
Commissioner believes are indicative of Martinez’s ability to do more than Martinez says. The problem for the
Commissioner is that neither she nor the Court may, after the fact, give reasons for an adverse credibility finding
that the ALJ did not express or even suggest. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007)
(explaining that “this court may not create or adopt post-hoc rationalizations to support the ALJ’s decision that are
not apparent from the ALJ’s decision itself”).
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IV. CONCLUSION & RECOMMENDATION
For the reasons stated above, the Court determines that the ALJ erred in evaluating
Martinez’s credibility and the RFC is unsound as a result as is the ALJ’s conclusion that
Martinez is capable of working as addresser, toy stuffer, and document preparer.
IT IS, THEREFORE, RECOMMENDED that Martinez’s motion to remand (Doc. 19)
be GRANTED and this matter be REMANDED for additional proceedings as described above.

__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT PARTY MAY,
PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO SUCH PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION. A PARTY MUST FILE ANY OBJECTIONS
WITH THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF THAT PARTY
WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO APPELLATE
REVIEW WILL BE ALLOWED. PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY
RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER
BEING SERVED WITH A COPY OF THE OBJECTIONS.

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