NINA Y. WANG, Magistrate Judge.
This civil action comes before the court pursuant to Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33 for review of the Acting Commissioner of Social Security's final decision denying the application for Disability Insurance Benefits ("DIB") of Plaintiff Christine Martinez ("Plaintiff" or "Ms. Martinez"). Pursuant to the Order of Reference dated September 27, 2016 [#23], this civil action was referred to the Magistrate Judge for a decision on the merits. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; D.C.COLO.LCivR 72.2. The court has carefully considered the Complaint filed March 22, 2016 [#1], Plaintiff's Opening Brief filed August 22, 2016 [#18], Defendant's Response Brief filed September 12, 2016 [#22], Plaintiff's Reply Brief filed September 30, 2016 [#24], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully REVERSE and REMAND the Commissioner's decision.
In September 2012, Ms. Martinez, proceeding pro se, filed a Title II application for DIB.
During the hearing, Ms. Martinez testified that she has eschewed narcotic pain medicine since February 2013 and was currently taking a muscle relaxer once a day to help reduce muscle contractions and spasms. She takes Tylenol and napoxen for her pain. [#12-2 at 43]. She testified that the medication causes her drowsiness and fatigue. She also testified that lifting weight, such as groceries or laundry, and cleaning exacerbate her pain, and that the pain in general does not subside, "[i]t's just a matter of the contractions being reduced." [Id. at 45]. Ms. Martinez stated that on a scale of 1 to 10, with 10 "being pain so severe" she would visit the emergency room, her pain rates at 6 or 7 every day. [Id.] In response to the ALJ's questions, Ms. Martinez represented that she can typically sit for an hour, but she can stand for only a few minutes and, according to her doctor, is not supposed to walk beyond 200 feet. [Id. at 46]. She testified that she cannot carry anything with her left arm, which suffers from a pinched nerve and loss of muscle strength, but can carry twenty-five pounds of weight with her right arm. [Id.]. She explained that her doctor had diagnosed her with radiculopathy, "indicating that there are nerves coming out of my head and going into my shoulder across my back that are being pinched because the C-5 and C-6 disk in my cervical vertebra is dislocated." [Id. at 47].
Ms. Martinez also testified that in a typical day she spends time with her eleven and twelve year-old sons, "see[s] that they're fed, clothed," and stays home because she cannot work. [#12-2 at 47]. While she tries not to sleep during the day, she takes a two-hour nap, two or three times a week. She has difficulty sleeping at night because of the pressure on her shoulder, which requires her to lie on her right side. [Id.] She can shower, but needs help dressing at times. She fixes meals, washes dishes, vacuums, processes laundry, pays bills, attends church on Sundays, shops for groceries once or twice a month, and eats out at a restaurant three to four times a month. [Id. at 48-49]. Ms. Martinez testified that she spends two to three hours on the computer a day, responding to emails, corresponding with her mother, and using social media. Prior to her injury, she swam, rode horses, bicycled, and was otherwise active. [Id. at 50].
The Vocational Expert ("VE"), Pat Paulini, also testified during the hearing. The ALJ queried whether the following individual could perform any of Plaintiff's previous jobs: a person who is restricted to medium work, who can only occasionally reach overhead with the upper left extremity, can frequently handle, finger, and feel with the upper left extremity, who cannot climb ladders or scaffolds, and who cannot work at unprotected heights or with dangerous unprotected machinery or vibrating tools. [#12-2 at 52]. The VE testified that such a person could perform all of Plaintiff's previous jobs. [Id.] The VE also testified that such a person could perform work as a cashier and a counter clerk. [Id.] In response to the ALJ further restricting the hypothetical individual to sedentary work, the VE testified that such a person could perform in the position of a telephone quotation clerk and charge account clerk. [Id. at 53]. Plaintiff's attorney then asked the VE to limit the hypothetical individual to light exertional work with the restriction of only occasional reaching, handling, and fingering with the upper left extremity, which is the individual's dominant upper extremity. The VE testified that such an individual could not perform Plaintiff's previous work positions, but could work as a counter clerk or a surveillance system monitor. [Id.]
The ALJ issued her written decision on September 10, 2014, concluding that Ms. Martinez was not disabled. [#12-2 at 14-24]. Plaintiff requested a review of the ALJ's decision, which the Appeals Counsel denied on January 19, 2016. [#12-2 at 1]. The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on March 22, 2015. This court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).
In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). The court may not reverse an ALJ simply because she may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). Moreover, the court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001), as amended on denial of reh'g (April 5, 2002). See also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.") (internal quotation marks and citation omitted). However, "[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The court will not "reweigh the evidence or retry the case," but must "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty, 515 F.3d at 1070 (internal citation omitted). "[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (internal citation omitted). The court liberally construes Ms. Martinez's briefs because she is proceeding pro se. Wilson v. Astrue, 249 F. App'x 1, 5 (10th Cir. 2007) (citations omitted).
An individual is eligible for DIB benefits under the Act if she is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). An individual is determined to be under a disability only if [her] "physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove she was disabled prior to her date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). Step one determines whether the claimant is engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers "whether the claimant has a medically severe impairment or combination of impairments," as governed by the Secretary's severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. Step three "determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity," pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity ("RFC"), which defines what the claimant is still "functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability." Williams, 844 F.2d at 751. The ALJ compares the RFC to the claimant's past relevant work to determine whether the claimant can resume such work. See Barnes v. Colvin, 614 F. App'x 940, 943 (10th Cir. 2015) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (internal quotation marks omitted)). "The claimant bears the burden of proof through step four of the analysis." Neilson, 992 F.2d at 1120.
At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account the claimant's RFC, age, education, and work experience.
The ALJ first determined that Ms. Martinez was insured for DIB through December 31, 2015. [#12-2 at 16]. Next, following the five-step evaluation process, the ALJ determined that Ms. Martinez: (1) had not engaged in substantial gainful activity since June 24, 2012; (2) had severe impairments of "obesity and C5-6 radiculopathy due to moderate to severe neuroforaminal stenosis"; and (3) did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). [#12-2 at 16-17]. At step four, the ALJ first found that Plaintiff had an RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b). The ALJ specified as follows: "[Ms. Martinez] can occasionally reach overhead with her left upper extremity. She can frequently handle, finger, and feel with the left upper extremity. She cannot climb ladders or scaffolds or work at unprotected heights or with dangerous unprotected machinery or vibrating tools." [#12-2 at 17]. The ALJ determined, after reviewing the medical evidence, that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded, after reviewing Plaintiff's reports of daily living, that statements regarding the intensity, persistence, and limiting effects of the symptoms were not "entirely credible." [Id. at 19]. Ultimately, the ALJ found that, "although the claimant injured her neck and left arm in June 2012, she recovered well with the use of medication and physical therapy." [Id. at 22].
In conclusion, the ALJ determined that Ms. Martinez "retains the residual functional capacity for a wide range of medium work," [#12-2 at 23], and relied on the VE's testimony to find that Ms. Martinez was capable of performing her past relevant work as an airfield management specialist, which is defined by The Dictionary of Occupational Titles as a light, skilled position, and as a server, which is defined as a light, semiskilled occupation. [Id. at 22]. The ALJ also determined that other jobs existed in the national economy that Plaintiff could perform. [Id. at 23-24]. Accordingly, the ALJ concluded that Plaintiff was not disabled.
Ms. Martinez now argues that she meets the "federal" definition of disabled, [#18 at 3-6], the ALJ should have found her disabled because she determined at step two that Ms. Martinez had severe impairments, and that her impairments qualify her as disabled pursuant to the listing of impairments. [Id. at 6-7, 9-13].
The ALJ found at step two that Plaintiff had severe impairments characterized as obesity and C5-6 radiculopathy due to moderate to severe neuroforaminal stenosis. Plaintiff does not argue that the ALJ should have listed additional impairments as severe, but that the ALJ should have determined her disabled on account of the radiculopathy at either step 2 or 3. See generally [#18].
As Defendant notes, Ms. Martinez cites the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq., in support of her first argument that she meets the federal definition of disabled. See [#18 at 3]. The ADA "seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity," and requires a fact-specific analysis of whether a particular, disabled individual can perform a certain job with or without reasonable accommodation. See Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 801 (1999) (citing 42 U.S.C. § 12111(8)). By contrast, the Act entitles an individual to disability benefits if her physical or mental impairment or impairments "are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d). While a finding of disability under one Act can inform as to disability under the other Act, the definition of disability under the ADA does not control the determination of disability under the Social Security Act for the purpose of awarding benefits. See Cleveland, 526 U.S. at 801 ("The Social Security Act and the ADA both help individuals with disabilities, but in different ways."); Johnson v. State, Oregon Dept. of Human Resources, Rehabilitation Div., 141 F.3d 1361, 1366-67 (9th Cir. 1998) (citing Swanks v. Washington Metro. Area Transit Auth., 116 F.3d 582, 586 (D.C. Cir. 1997) ("The ADA and the disability provision of the Social Security Act have different purposes, and have no direct application to one another") (further citation omitted)). See also Toscano v. Warren County Dept. of Human Services, 323 F. App'x 120, 122 (3d Cir. 2009) (holding disability as recognized under the ADA is not synonymous with disability that entitles a person to social security benefits). Accordingly, whether Plaintiff qualifies as disabled under the ADA was not a question before the ALJ and does not bear on the court's review of the ALJ's decision.
Plaintiff next argues that in finding she had severe impairments at step two, the ALJ erred in ultimately concluding that she is not disabled. [#18 at 7]. Contrary to Plaintiff's position, step two does not provide an opportunity for ALJs to award benefits, but rather to proceed with the subsequent inquiry into whether the claimant can perform substantial gainful activity within the economy. The term "impairment" is not synonymous with "disability," and step two represents an early stage of the administrative process, at which ALJs may "weed out...those individuals who cannot possibly meet the statutory definition of disability." Bowen v. Yuckert, 482 U.S. 137, 156 (1987) (O'Conner, J., concurring). See also Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004). Thus, an ALJ ends the evaluation at step two, and denies benefits, only if he or she finds the claimant does not have an impairment or combination of impairments that would have more than a minimal effect on the claimant's ability to do basic work activities. Williams, 844 F.2d at 750. Upon finding that a claimant has a severe impairment, as the ALJ found here, the five-step evaluation described above requires the ALJ to proceed to step 3.
Ms. Martinez generally argues that her impairment is such that the ALJ should have determined her to be disabled. Though she does not attribute it to a particular step, this court construes this argument as a challenge to the either the ALJ's determination at step 3 that her severe impairment is not equivalent to a listing, or as a challenge to the RFC as formulated by the ALJ, as Ms. Martinez's asserts the ALJ "did not give sufficient weight to medical documentation."
However, the ALJ did not address the records generated by Drs. Oh, Torberntsson, or Pineau, which state as follows. On September 23, 2013, Dr. Oh observed that, with respect to Plaintiff's C5-6, while "[t]here is mild circumferential disc bulge without significant canal stenosis," there is also "moderate to severe left neural foraminal narrowing secondary to disc osteophyte complex." [#12-12 at 576-577]. Records from a follow up appointment on November 20, 2013 with Dr. Torbernstsson again indicate "severe C5/6 left neuroforaminal narrowing," although they also state that Plaintiff's April 2013 EMG was negative for radiculopathy. [Id. at 660]. Finally, on February 13, 2014, Dr. Pineau observed that an MRI indicated Plaintiff "has nerve root impingement on the left at C4-5-6." [Id. at 595].
While an ALJ is not required to discuss every piece of evidence in the record, she must discuss the evidence supporting her decision and also "must discuss the uncontroverted evidence [s]he chooses not to rely upon, as well as the significantly probative evidence [s]he rejects." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996); 20 C.F.R. § 404.1520(a)(3), (e). See also Holcomb v. Astrue, 389 F. App'x 757, 760 (10th Cir. 2010) ("[T]he ALJ is required to consider all relevant evidence in the record, including opinions from medical and non medical sources who have treated the claimant") (citing Social Security Ruling 06-03p, 2006 WL 2329939, at *4 (Aug. 9, 2006)); Grogan, 399 F.3d at 1262 (citing Baker v. Bowen, 886 F.2d 289, 291 (10th Cir. 1989)). The court will not reweigh the evidence, but must nonetheless "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Grogan, 399 F.3d at 1262 (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)).
The ALJ found that Ms. Martinez's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," but that her statements concerning "the intensity, persistence, and limiting effects" of the symptoms were not entirely credible in light of the objective medical evidence indicating reduced symptoms and her testimony regarding her daily activities.
In addition, in one section of the RFC determination, the ALJ states that Plaintiff can perform "light" work [#12-2 at 17], but then concludes by stating that Ms. Martinez has been capable of performing a wide range of "medium work as described in Finding 5 of the RFC."
Lastly, Ms. Martinez argues that her impairment meets the Social Security listing. At step three, the determination is made "whether the impairment is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Williams, 844 F.2d at 751. Thus, an ALJ may truncate the five-step evaluation if he or she finds that the severe impairment meets or equals the severity of a listed impairment. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) ("At step three, if a claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled and entitled to benefits."). The impairment or combination of impairments must satisfy the listing for at least twelve consecutive months, see Barnhart v. Walton, 535 U.S. 212, 214-15 (2002), and a claimant has the burden to establish that her impairment(s) meet a listing set forth at 20 C.F.R., pt. 404, subpt. P, app. 1. See Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).
Plaintiff argues the ALJ erred in failing to find that her impairment(s) meet the criteria of section 1.00, regarding musculoskeletal issues, but she does not specify which of the seven listings within section 1.00 applies to her condition. See [#18 at 9-10]. Defendant contends that by not identifying a specific listing, Plaintiff has waived this argument. [#22 at 10]. Although Defendant is correct that the court should consider and discuss only those contentions that a claimant has adequately briefed, Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012), I am mindful that Plaintiff is proceeding pro se and that the court is required to afford her arguments a liberal construction. Thus, I will consider Plaintiff's argument within the context of the medical listing identified and discussed by the ALJ in her opinion.
Here, the ALJ considered Listing 1.04(A) and found that Plaintiff's impairment did not meet the listing criteria. Listing 1.04(A) reads:
20 C.F.R., Part 404, Subpart P, Appendix 1, § 1.04 (emphasis added). The ALJ recognized the following: the C5-6 radiculopathy was initially characterized "by some nerve root compression with neuro-anatomic distribution of pain and limitation of motion of the spine"; a June 2012 exam revealed "-5/5 hand grip," but also that Plaintiff's deep tendon reflexes and sensation were intact; and October 2012 medical notes reported grip weakness, arm numbness, and Plaintiff's inability to lift her left arm overhead. [#12-2 at 17 (citing #12-7 at 268, 252-253)]. The ALJ then considered that "most of these symptoms had resolved" by November 2012, [id. (citing #12-8 at 400-402, #12-9 at 403-406], and that by February 2013, Plaintiff's "radicular symptoms had begun to resolve despite some ongoing reduction in strength and range of motion." [Id. (citing #12-8 at 303-304)]. The ALJ thus concluded that the medical evidence demonstrated "only brief loss of sensation," rather than reflex or motor loss. [Id.]
"To show that an impairment or combination of impairments meets the requirements for a listing, a claimant must provide specific medical findings that support each of the various requisite criteria for the impairment." Lax, 489 F.3d at 1085 (citing 20 C.F.R. § 404.1525). If the ALJ finds that the claimant does not meet a listed impairment, she is "required to discuss the evidence and explain why [s]he found that [the claimant] was not disabled at step three." Morgan v. Astrue, 236 F. App'x 394, 396 (10th Cir. 2007) (quoting Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996)). While the ALJ is not required to discuss every piece of evidence, the record must nonetheless demonstrate that the ALJ considered all of the evidence. Id.
I find that the above discussion concerning the VA records applies equally to Plaintiff's contention regarding whether the ALJ erred at step three. Without mention of these records in her opinion, I cannot find that the ALJ considered all of the evidence in determining that Plaintiff's impairments do not meet the severity of a listed impairment.
For the reasons set forth herein, the court respectfully
