Martinez v. Social Security Administration

Filing 33

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter denying 25 Motion to Remand; denying 30 Motion to Remand (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GLORIA N. MARTINEZ,
Plaintiff,
v.

CIV 17-0019 JHR

NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Performing the duties and functions not
Reserved to the Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff Gloria N. Martinez’ Motion to Remand
her Social Security case, filed March 8, 2018. [Doc. 25]. The Court has also considered Mrs.
Martinez’ response to the Court’s Order to Show Cause and her Supplemental Motion to
Remand. [Docs. 26, 30]. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure
73(b), the parties have consented to the undersigned to conduct dispositive proceedings in this
matter, including the entry of final judgment. [Doc. 18]. Having considered the parties’ positions,
the relevant law, and the relevant portions of the Administrative Record (“AR”), the Court denies
Mrs. Martinez’ Motion, for the reasons set forth below.
I)

INTRODUCTION
Mrs. Martinez, who is proceeding pro se, 1 generally asserts that her case should be

remanded to the Social Security Administration. Liberally construing her various statements, she

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Mrs. Martinez was explicitly advised against proceeding pro se by the ALJ. AR at 30-31. She complains before this
Court that she cannot afford an attorney. [Doc. 25]. However, many attorneys accept cases on a contingency-fee
basis, meaning that the client does not pay unless benefits are recovered. See Otero v. Comm'r, SSA, 733 F. App’x
459, 460 (10th Cir. 2018). Mrs. Martinez was made aware of this fact by the ALJ. AR at 30. While it has liberally

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complains that a consultative examiner, Dr. Wynne, violated her rights by assessing her dress
and hygiene as part of his psychological examination. [Docs. 26, 30]. She also argues that the
limitations found by this examiner preclude her from performing basic work activities,
assumedly in contrast to the Administrative Law Judge’s (“ALJ’s”) conclusion that she can
perform some work. [Doc. 26, p. 2]. Finally, she appears to challenge the ALJ’s credibility
determination by asserting that she was very active and had a consistent work history prior to
claiming disability. [Doc. 30]. Unfortunately for Mrs. Martinez, none of her claims warrant
reversal of the ALJ’s decision.
II)

BACKGROUND
Mrs. Martinez filed applications with the Social Security Administration for disability

insurance benefits under Title II of the Social Security Act and supplemental security income
under Title XVI of the Act on December 20, 2012. AR at 161-170. She alleged a disability onset
date of June 1, 2010, the day she stopped working due to “Depression, Thyroid condition,
Vertigo, PTSD, [and] Anxiety.” AR at 161, 200.
The Administration denied Mrs. Martinez’ claims initially and upon reconsideration, and
she requested a de novo hearing before an ALJ. AR at 56-119. ALJ Eric Weiss held an
evidentiary hearing on February 25, 2015. AR at 26-55. Mrs. Martinez appeared pro se, and
elected to proceed without an attorney or other representative. AR at 30-31. On September 5,
2015, the ALJ issued an unfavorable decision, finding that Mrs. Martinez has not been disabled
as defined by law from her alleged onset date through the date of his decision. AR at 6-25. Mrs.
Martinez requested review of the ALJ’s decision on October 6, 2015, AR at 4-5, and the Appeals
Council denied her request for review on November 9, 2016. AR at 1-3. As such, the ALJ’s

construed her filings, this Court has no choice but to treat Mrs. Martinez as it would any other litigant. See Wilson v.
Astrue, 249 F. App’x 1, 5 (10th Cir. 2007).

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decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759
(10th Cir. 2003). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. §
405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that she is unable to engage in “any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §
404.1505(a). The Commissioner must use a five-step sequential evaluation process to determine
eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 2
At Step One of the sequential evaluation process, the ALJ found that Mrs. Martinez has
not engaged in “substantial gainful activity” since her alleged onset date. AR at 11. At Step Two,
he determined that she has the “severe” impairments of “(i) anxiety disorder; (ii) depression
disorder; (iii) post-traumatic stress disorder (PTSD); and, (iv) vertigo[.]” AR at 11. However, at
Step Three, the ALJ concluded that Mrs. Martinez’ impairments, individually and in
combination, do not meet or medically equal the regulatory “listings.” AR at 12-13. This means
that the ALJ determined that none of Plaintiff’s impairments, though severe, were severe enough
to prevent Mrs. Martinez from doing any gainful activity. See 20 C.F.R. §§ 404.1525, 416.925.

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The Tenth Circuit summarized these steps in Allman v. Colvin, 813 F.3d 1326, 1333 n.1 (10th Cir. 2016):
At step one, the ALJ must determine whether a claimant presently is engaged in a substantially
gainful activity. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). If not, the ALJ then decides
whether the claimant has a medically severe impairment at step two. Id. If so, at step three, the
ALJ determines whether the impairment is “equivalent to a condition ‘listed in the appendix of the
relevant disability regulation.’” Id. (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). Absent a match in the listings, the ALJ must decide at step four whether the claimant's
impairment prevents him from performing his past relevant work. Id. Even if so, the ALJ must
determine at step five whether the claimant has the RFC to “perform other work in the national
economy.” Id.

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When a claimant does not meet a listed impairment, the ALJ must determine her
“residual functional capacity” (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is a
multidimensional description of the work-related abilities a claimant retains in spite of her
medical impairments and limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). “RFC is not
the least an individual can do despite his or her limitations or restrictions, but the most.” SSR 968p, 1996 WL 374184, at *1. In this case, the ALJ determined that Mrs. Martinez retains the RFC
to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
she may: lift up to twenty (20) pounds occasionally and lift or carry up to ten (10)
pounds frequently, and push or pull the same; stand or walk for up to six (6) hours
per eight-hour day and sit for up to six (6) hours per eight-hour day with normal
breaks; frequently climb ramps and stairs, but never climb ladders, ropes and
scaffolds; avoid more than occasional exposure to work place hazards such as
moving machinery and unprotected heights; is limited to simple, routine tasks
with only occasional changes in the work setting; and, is limited to occasional
contact with the public, supervisors and co-workers.
AR at 13-14.
Employing this RFC at Steps Four and Five of the process, and relying on the testimony
of a Vocational Expert, the ALJ determined that Mrs. Martinez is unable to perform her past
relevant work as a cook’s helper. AR at 18. However, the ALJ found that there are jobs that exist
in “significant numbers” in the national economy that she can perform, despite her limitations.
AR at 19. Specifically, the ALJ determined that Mrs. Martinez retains the functional capacity to
work as an assembler, housekeeper, or electronics assembler. AR at 19. Accordingly, the ALJ
determined that Mrs. Martinez is not disabled as a matter of law, and denied benefits. AR at 19.
III)

LEGAL STANDARDS

This Court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal standards were

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applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. KeyesZachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). “‘Substantial evidence’ means ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Racette v. Berryhill, --- F. App’x ----, 2018 WL 2318089, at *1 (10th Cir. May 22, 2018)
(unpublished) (quoting Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004)). The Court
reviews the record as a whole, does not reweigh the evidence, and cannot substitute its judgment
for that of the agency. White v. Berryhill, 704 F. App’x 774, 776 (10th Cir. 2017) (citing
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008)). This means that only if the ALJ’s
decision is overwhelmed by other evidence in the record will it will be reversed. Knight ex rel.
P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014).
IV)

ANALYSIS

Mrs. Martinez’ first argument, that she was “stereotyped” by the consultative examiner
because he stated that she was “dressed casually with appropriate hygiene” in his report, [see
Doc. 26, p. 1], does not impute error to the ALJ. In other words, it was not the ALJ’s fault that
the doctor described Mrs. Martinez’ appearance and hygiene in a certain way, or considered
them when assessing the severity of her limitations. More to the point, Mrs. Martinez’ civil rights
were not violated by the doctor’s observations. While the Court sympathizes with Mrs. Martinez’
argument that she “wasn’t aware [she] had to dress or smell poorly to be suffering from
depression[,]” [Doc. 26, p. 1], the doctor’s observations were simply observations made as part
of his routine mental status examination. See, e.g., Ringgold v. Colvin, 644 Fed. Appx. 841, 843
(10th Cir. 2016).

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Mrs. Martinez’ second argument amounts to an assertion that the ALJ should have found
her disabled based on Dr. Wynne’s report. [See Doc. 26, pp. 1-2 (summarizing Dr. Wynne’s
reported limitations, and arguing that “the evidence shows that my impairments significantly
limit my abilities to do basic work activities[.]”). The ALJ weighed Dr. Wynne’s opinion and
gave it great weight, essentially adopting many of his findings. AR at 15. Mrs. Martinez has not
shown how giving greater weight to the opinion would have helped her, and has not
demonstrated that the ALJ committed legal error when weighing it. See Keyes-Zachary v. Astrue,
695 F.3d 1156, 1163 (10th Cir. 2012). As such, she has demonstrated no harmful legal error
requiring reversal.
Finally, the Court liberally construes Mrs. Martinez’ assertions that she has always
worked and was very active in her past, [see Doc. 30, p. 1], as challenges to the ALJ’s finding
that her statements concerning the intensity, persistence and limiting effects of her symptoms are
not generally credible. Unfortunately for Mrs. Martinez, the Court must generally defer to the
ALJ’s credibility findings, as he was in the best position to assess the limiting effects of her
symptoms on her ability to work. See Arterberry v. Berryhill, 2018 WL 3689233, at *4 (10th Cir.
Aug. 2, 2018) (“[C]redibility determinations are peculiarly the province of the finder of fact, and
should not be upset if supported by substantial evidence.”). In making credibility determinations,
an ALJ must consider certain factors. See Romo v. Comm'r, Soc. Sec. Admin., 2018 WL
4212112, at *4 (10th Cir. Sept. 5, 2018) (unpublished). Here, the ALJ considered those factors,
AR at 17, and Mrs. Martinez has given the Court no reason to disregard the ALJ’s findings.
V)

CONCLUSION
Social Security benefits are reserved to those who cannot work due to their impairments.

Here, however, the ALJ determined that Mrs. Martinez can perform some work despite her

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impairments. In order to reverse the ALJ’s decision, Mrs. Martinez must demonstrate to the
Court that he did not apply the law correctly, or that his decision is not supported by the
evidence. She has not done so. Therefore, the Court has no choice but to deny her Motion to
Remand.
Wherefore, Plaintiff’s Motion [Doc. 25] and Supplemental Motion [Doc. 30] to Remand
are hereby denied. A Final Judgment pursuant to Federal Rule of Civil Procedure 58 will be
entered concurrently.
SO ORDERED.

_______________________________
Jerry H. Ritter
U.S. Magistrate Judge
Presiding by Consent

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