MARTINEZ v. SOCIAL SECURITY ADMINISTRATION

Filing 32

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE RELIEF SOUGHT IN PLAINTIFF'S BRIEF AND STATEMENT OF ISSUES IN SUPPORT OF REQUEST FOR REVIEW [#20] IS DENIED; JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF GILBERT M. MARTINEZ; AND THE CLERK OF COURT SHALL CLOSE THIS CASE. SIGNED BY HONORABLE PAUL S. DIAMOND ON 3/15/16. 3/16/16 ENTERED & E-MAILED. COPY MAILED TO PRO SE PLAINTIFF.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GILBERT M. MARTINEZ
Plaintiff,
v.

:
:
:
:
:
:
:
:

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration
Defendant.

Civ. No. 14-1860

ORDER
Plaintiff Gilbert M. Martinez challenges the denial of his claim for Social Security
Insurance Benefits under Title XVI of the Social Security Act. (Doc. No. 20.) Magistrate Judge
Hart recommended granting judgment in favor of the Commissioner. (Doc. No. 26.) Plaintiff
filed a Response titled “Objections to [the] ALJ’s Recommendation,” and Defendant replied.
(Doc. Nos. 27, 31.) I will overrule the objections and adopt the Report and Recommendation.
I.

Factual and Procedural History

On September 9, 2011, Plaintiff filed an application for supplemental security income,
alleging disability beginning in August 2011. (Doc. No. 18, Admin. R., 173-179.) The Social
Security Administration denied Plaintiff’s application in January 2012. (Id., 75-87.) Plaintiff
appealed and, after a hearing in July 2013, the ALJ denied Plaintiff’s claim for benefits. (Id. at
8-24.) The Appeals Council denied Plaintiff’s request for review, and Plaintiff, proceeding pro
se, filed this action. (Id. at 1-5; Doc. No. 4.) On December 3, 2015, Judge Hart recommended
affirming the Commissioner’s final decision. (Doc. No. 26.) On December 22, 2015, this matter
was reassigned from Judge Gardner to me. (Doc. No. 29.)

II.

Standard of Review

The ALJ’s decision must be upheld if it is supported by “substantial evidence.” Monsour
Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). “Substantial evidence ‘does not mean
a large or considerable amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 564–65 (1988)).
I must review de novo each issue addressed by the Magistrate Judge to which Plaintiff
has raised a timely and specific objection. 28 U.S.C. § 636(b)(1) (2002); see also Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). I may “accept, reject, or modify, in whole or in part,
the [Magistrate Judge’s] findings and recommendations.” 28 U.S.C. § 636(b)(1); see United
States v. Raddatz, 447 U.S. 667, 676 (1980).
III.

Discussion

In response to Judge Hart’s Report and Recommendation, Plaintiff raises seven
arguments, each of which he characterizes as an “objection against ALJ’s recommendation.”
(Doc. No. 27 (titled “Objection to ALJ’s Recommendation”).) Rather than address Judge Hart’s
Report and Recommendation, Plaintiff instead (improperly) uses this opportunity to reiterate his
disagreements with the ALJ’s underlying decision. All Plaintiff’s purported objections are thus
procedurally deficient, and I may not consider them. See E.D. Pa. Local Rule 72.1(IV)(c) (“All
issues and evidence shall be presented to the magistrate judges, and unless the interest of justice
requires it, new issues and evidence shall not be raised after the filing of the Magistrate Judge’s
Report and Recommendation if they could have been presented to the magistrate judge.”);
Facyson v. Barnhart, No. CIV. A. 02-3593, 2003 WL 22436274, at *2 (E.D. Pa. May 30, 2003)
(refusing to consider “plaintiff’s general dissatisfaction and disagreement with the Report and

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Recommendation” and addressing Plaintiff’s purported objections only in the interest of justice),
aff’d, 94 F. App’x 110 (3d Cir. 2004). Because Plaintiff is acting pro se, however, I will address
his arguments on the merits.
Plaintiff argues the ALJ erred by finding that Plaintiff could perform alternative
occupations. (Doc. No. 27, Obj. 1.) He asserts this finding was “highly improbable” because the
alternative occupations would require: 1) full use of the right hand; and 2) some prior
experience—both of which he lacks. Like Judge Hart, I disagree.
The alternative occupations the ALJ found do not require full use of the right hand. The
ALJ properly accounted for any hand limitations Plaintiff purportedly has by restricting the
vocational expert’s assessment of alternative occupations to those requiring only limited finger
use. (Doc. No. 18, Tr. at 67, 69 (“Q [ALJ]: I’d like you to assume an individual [who] . . . can
occasionally finger with the right hand.”).) The ALJ’s questioning in this regard comports with
the substantial medical evidence suggesting that Plaintiff’s use of his right hand was only mildly
limited (if at all). (Id. at 17, 287 (consultative physician found no visible deformity other than
the flexion contractures in the right fingers and imposed no limitations on Plaintiff’s ability to
reach, handle, or finger); Tr. at 60 (medical advisor noted that while Plaintiff may have “some
fine motor issues with regard to right-hand contraction,” it was “difficult . . . to know how
limiting it is.”).)

I thus reject Plaintiff’s contention that the alternative occupations were

improbable because they require full use of his right hand.
Additionally, the alternative occupations do not require experience. These occupations—
including delivery driver, storage facility rental clerk, and sales attendant—are defined as entrylevel unskilled work, i.e., “work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 416.968(a). They thus do not require

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experience. Assuming, arguendo, these positions required some experience, Plaintiff—who can
read and write, has a high school education, and who previously worked as a tile mechanic and
delivery truck driver—had the requisite background. (Id. at 35-36.) Accordingly, I will overrule
Plaintiff’s objection.
Plaintiff argues that Defendant failed to give him proper notice that it would present
vocational expert testimony at the hearing. Plaintiff did not raise this issue before Judge Hart,
who accordingly did not address it. The record includes a June 24, 2013 Notice of Hearing
addressed to Plaintiff, which described the hearing process and stated: “A vocational expert will
testify at your hearing.” (Doc. No. 18 at 125.) He thus received fair notice that a vocational
expert would testify. Accordingly, I will overrule Plaintiff’s objection.
Plaintiff argues that because Defendant attempted to “preclude any relevant records
pertaining to plaintiffs [sic] Rheumatoid Arthritis,” the ALJ’s characterization of “aftersubmitted lab test results” was erroneous. (Doc. No. 27, Obj. 3.) The report at issue (dated April
30, 2013) apparently showed that Plaintiff tested positive for a high rheumatoid factor, and
Plaintiff now relies on it to claim a diagnosis of rheumatoid arthritis. As Plaintiff acknowledges,
however, he did not submit the report until “two days later”—i.e., after the hearing with the ALJ.
(Id.) The ALJ thus did not mischaracterize this belatedly-submitted report as “after-submitted.”
Plaintiff nonetheless contends that Defendant prevented Plaintiff from introducing this
report at the hearing or from otherwise cross-examining the medical witnesses, including Dr.
Brian Richards, respecting Plaintiff’s purported rheumatoid arthritis. The record belies this
claim.
The ALJ repeatedly permitted Defendant to present evidence and cross-examine
witnesses. (Tr. at 52: (ALJ: “Is there anything else that we haven’t talked about that you think

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is important for me to consider, Mr. Martinez?”); Tr. at 60 (ALJ: “Mr. Martinez, do you have
any questions you would like to ask Dr. Richards?”); Tr . at 70: (ALJ: “As I said, Mr. Martinez,
I would give you an opportunity if you wanted to make some arguments or points before we
conclude, that you can do so now.”).) Additionally, the ALJ informed Plaintiff that he would
consider any records submitted after the hearing, which would be incorporated into the record.
(Tr. at 32 (ALJ: “And the documents that you brought with you will be added as an exhibit
once the hearing is done, and any additional documents we receive will also be made
exhibits.”); Tr. at 63 (ALJ: “I want to see those documents, if they exist, before I make my
decision, but Dr . Richards can only testify what he’s seen.”); Tr. at 64 (ALJ: “If there are
still additional records out there, which there may be, we will get those records and they
will be properly considered before a decision is made on your case.”).)
I thus agree with Judge Hart that Plaintiff is not entitled to relief on this basis. Plaintiff
had ample opportunity to introduce any evidence—including the April 30, 2013 report—at or
after the hearing, and the ALJ properly considered those records before rendering his decision.
(Doc. No. 18, ALJ Hearing Decision, 14, 18 (acknowledging a reference to a high rheumatoid
factor, but noting no resulting functional limitations based on his review of the totality of the
record.)
Finally, Plaintiff argues that he was entitled to “further testimony” after he belatedly
submitted the April 30, 2013 report. (Doc. No. 27, Obj. 3.) Plaintiff does not explain what
additional testimony he would have introduced, however, or how it would have altered the ALJ’s
decision. Judge Hart thus properly found that “further testimony” would not have altered the
ultimate result in this case because substantial evidence—including significant medical evidence
refuting a rheumatoid arthritis diagnosis and Plaintiff’s own admission that his supposed

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rheumatoid arthritis was undiagnosed—supported a finding of no disability and no resulting
functional limitation. (Doc. No. 26 at 8-9; Doc. No. 18 at 60, 283-295.) Indeed, Plaintiff
himself acknowledged the adequacy of the existing record in a July 24, 2013 letter to the ALJ.
(Doc. No. 18 at 252 (“I don’t see the need for you to obtain any additional records at this time.
Your findings based off the records will be adequate enough.”).) Accordingly, I will overrule
Plaintiff’s objection.
Plaintiff argues the ALJ erred in finding that his rheumatoid arthritis was undiagnosed.
(Doc. No. 27, Obj. 4 (“Plaintiff denies ALJ’s allocation [sic] that plaintiff conceded at the
hearing not being diagnosed with Rheumatoid Arthritis.”).) The following exchange occurred at
the administrative hearing:
Q (ALJ):

And how long have you suffered from
rheumatoid arthritis?

A (Plaintiff): It's going on two years now.
Q (ALJ):

And do you know when that was diagnosed
or by whom it was diagnosed?

A (Plaintiff): Well, it wasn’t actually diagnosed.
(Tr. 37). Plaintiff thus conceded that his rheumatoid arthritis was undiagnosed. Accordingly, I
will overrule Plaintiff’s objection.
Plaintiff argues that the ALJ knowingly mischaracterized Plaintiff’s sedimentation rate—
a blood measure relevant to diagnosing inflammation—as “normal.” (Doc. No. 27, Obj. 5). The
medical advisor testified to medical records supporting this finding. (Doc. No. 18, Tr. 56
(Medical Advisor: “[T]here is another test called sedimentation rate which is normal”); 303
(May 2012 physical examination by Plaintiff’s own treating physician recording Plaintiff’s
sedimentation rate as “WNL” (i.e., within normal limits)).) The ALJ was entitled to rely on this

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medical evidence in determining the sedimentation rate and classifying it as normal. See Fisher
v. Barnhart, 393 F. Supp. 2d 343, 347 (E.D. Pa. 2005) (“The Third Circuit has made clear that an
ALJ is not free to set his own expertise against that of physicians who present competent medical
evidence.”) (citations and quotations omitted)). Accordingly, I will overrule Plaintiff’s objection.
Plaintiff argues that the ALJ should not have considered Plaintiff’s failure to visit a
specialist because this was “irrelevant for purposes of diagnosing Plaintiff’s conditions.” (Pl,
Obj. 7.) He argues that neither Defendant nor the ALJ has disputed the “subsequent” diagnosis
from Dr. Alexandra Etick. (Id.)
I agree with Judge Hart that Plaintiff mischaracterizes the record. Far from relying on
Plaintiff’s failure to see a specialist as dispositive, the ALJ merely summarized Dr. Richards’
testimony respecting the available medical evidence. (Doc. No. 18, ALJ Hearing Decision, 14
(“[Dr. Richards] testified there is no notation of back and neck pain of degenerative disease on
imaging studies, but nothing more than family practice the ALJ’s review of the medical
testimony.”).) In any event, the ALJ was entitled to consider the entirety of Plaintiff’s course of
treatment and response to treatment in making his credibility determination.

20 C.F.R.

§ 416.929(c) (factors considered in evaluating disability).
Finally, Dr. Etick neither testified at the administrative hearing nor is there even a
reference to her in any of the medical exhibits or any of the other documents in the record. (Doc.
No. 18, Exs. 7-9.) Plaintiff does not identify when Dr. Etick examined or diagnosed him or the
nature of her diagnosis. I am thus unable to address (much less comprehend) Defendant’s
reference to Dr. Etick’s purported diagnosis, which appears not to have been presented to the ALJ
for consideration. See Suarez v. Astrue, 996 F. Supp. 2d 327, 333 (E.D. Pa. 2013) (“[T]he Court

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cannot remand the ALJ’s decision based on the failure to confront evidence that does not exist.”)
(quotations and citations omitted). Accordingly, I will overrule Plaintiff’s objection.
IV.

Conclusion

Because I find substantial evidence supports the ALJ’s factual determinations, I will
overrule Plaintiff’s Objections and adopt the Report and Recommendation of the Magistrate
Judge.
AND NOW, this 15th day of March, 2016, upon consideration of Plaintiff’s Brief and
Statement of Issues in Support of Request for Review (Doc. No. 20), Defendant’s Response
(Doc. No. 24), and the record herein, and after careful review of the Magistrate Judge Hart’s
Report and Recommendation (Doc. No. 26), Plaintiff’s “Objections to ALJ’s Recommendation”
(Doc. No. 27), and Defendant’s Response (Doc. No. 31), it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The relief sought in Plaintiff’s Brief and Statement of Issues in Support of Request
for Review (Doc. No. 20) is DENIED;
3. JUDGMENT is entered in favor of Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security, and against Plaintiff Gilbert M. Martinez; and
4. The Clerk of Court shall CLOSE this case.
AND IT IS SO ORDERED.
/s/ Paul S. Diamond
_________________________
Paul S. Diamond, J.

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