Martinez v. Barnhart

• Decision Date: 24 January 2006
• Docket Number: No. 04-2259.,04-2259.
• Citation: 444 F.3d 1201
• Parties: Gabriel M. MARTINEZ, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1201

444 F.3d 1201

Gabriel M. MARTINEZ, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.

No. 04-2259.

United States Court of Appeals, Tenth Circuit.

January 24, 2006.

Ordered Published April 25, 2006.

COPYRIGHT MATERIAL OMITTED

Helen Laura Lopez, Santa Fe, NM, for Plaintiff-Appellant.

David C. Iglesias, U.S. Attorney, Cynthia L. Weisman, Assistant U.S. Atty., Tina M. Waddell, Regional Chief Counsel, Michael McGaughran, Deputy Regional Chief Counsel, Katauna J. King, Assistant Regional Counsel, Office of the General Counsel, Region VI, Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.

PORFILIO, Circuit Judge.

Plaintiff-appellant Gabriel M. Martinez appeals from the order entered by the district court affirming the Social Security Commissioner's decision denying his applications for disability insurance benefits and supplemental security income benefits under the Social Security Act. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.¹

I.

Mr. Martinez filed applications for DIB and SSI on May 27, 1998, alleging an onset date of May 15, 1998. An administrative hearing regarding his claims was held by an Administrative Law Judge who found Mr. Martinez disabled and awarded benefits. Subsequently, the Division of Disability Quality Operations referred the claim to the Appeals Council for review. After its consideration, the Appeals Council notified Ms. Martinez of its intent to remand his case to the ALJ for additional proceedings. On October 23, 2001, it vacated the ALJ's decision and remanded the matter for additional proceedings.

A new ALJ conducted a second hearing, rendering her decision six months later. Although she found Mr. Martinez not entirely credible, the second ALJ found that he is impaired by degenerative joint disease of the knees and lumbar spine, chronic major depression, and borderline intellectual functioning, but that he does not suffer from a listing level impairment. She also found that although Mr. Martinez could not return to his past relevant work, he had the residual functional capacity to perform work identified by a vocational expert that is available in significant numbers in the national economy. The Appeals Council subsequently declined to assume further jurisdiction over Mr. Martinez's case, making the last ALJ decision the final decision of the Commissioner.

Mr. Martinez appealed to the district court which referred the matter to a magistrate judge. The magistrate judge subsequently recommended that the ALJ's decision denying benefits be affirmed. After considering Mr. Martinez's objections, the district court adopted the recommended disposition and dismissed the case. This appeal followed.

Because the Appeals Council denied review, the last ALJ's decision is the Commissioner's final decision for purposes of this appeal. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.2003). In reviewing that decision, "we neither reweigh the evidence nor substitute our judgment for that of the agency." Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). Instead, we review the decision only to determine whether the ALJ applied the correct legal standards and whether her factual findings are supported by substantial evidence in the record. See Doyal, 331 F.3d at 760.

II.

In this appeal, Mr. Martinez is requesting that we reverse the last ALJ decision and remand this matter to the Commissioner based on four arguments. First, he contends the Appeals Council erred because its "reversal of the original favorable ALJ decision, which included a credibility assessment, improperly invaded the ALJ's province." Second, he argues the Appeals Council erred during the second administrative appeal because it failed to articulate an analysis showing the opinions of his treating physician, Dr. Olivares, were not supported by his treatment records. Third, he asserts the second ALJ erred by failing to sufficiently develop the administrative record. Fourth, he argues the ALJ erred by failing to perform a proper residual functional capacity assessment. We conclude the first two arguments are without merit, and that Mr. Martinez waived the third and fourth arguments by failing to properly preserve them during the district court proceedings.

A. Appeals Council's Remand Order.

After reviewing the parties' initial appellate briefs, we concluded they had not adequately addressed the issue of whether this court has subject matter jurisdiction to review the remand order entered by the Appeals Council on October 23, 2001. We directed the parties to file supplemental briefs addressing the issue.

In his supplemental brief, Mr. Martinez states, "the review sought is of the second hearing decision, not the first nor the remand order by itself." He therefore concedes we do not have subject matter jurisdiction under 42 U.S.C. § 405(g) to review the propriety of the Appeals Council's remand order, or, more particularly, its determination that the first ALJ's decision was not supported by substantial evidence. The concession is appropriate. See Weeks v. Soc. Sec. Admin. Comm'r, 230 F.3d 6, 7, 8 (1st Cir.2000) (noting that the governing agency regulations "draw a clear distinction between a `decision' and a `remand' in this context," and concluding that "an order of the Appeals Council vacating an ALJ's recommended decision and remanding for further proceedings is ordinarily not an appealable final decision"). In addition, while "a different result might obtain where the Appeals Council's action is challenged on constitutional . . . grounds," id. at 8 n. 1, Mr. Martinez has made no such challenge here.

Mr. Martinez has not completely abandoned his challenge to the Appeals Council's remand order, however, as he persists that the Council's remand order was procedurally deficient and in violation of the rule established by this court in Williams v. Bowen, 844 F.2d 748 (10th Cir.1988). According to Mr. Martinez:

The second ALJ was ordered to, and bound to give "further consideration to the claimant's maximum residual functional capacity," being bound to adhere to the Council's opinion of the insufficiency of the above evidence. That evidence is clearly and plainly a fact-finder's province. It is squarely inconsistent with the rule of Williams [] to have the Appeals Council second guess those factually based findings.

The second ALJ could theoretically have, as fact finder, found additional facts over and above those found by [the first ALJ], and dismissed by the Council. She did not, and rendered her final, reviewable decision with the Council's improper delimitation of evidence as part of the decision and of this record.

These arguments are without merit. First, our decision in Williams is limited to the situation where the Appeals Council enters a final decision reversing an ALJ's award of social security benefits and has no applicability in the context of a remand order. See Williams, 844 F.2d at 749-50, 754 (setting forth standard of review for cases where the Appeals Council enters a final decision reversing an ALJ's award of benefits).

Second, the governing regulations grant the Appeals Council the specific power to "make a decision or remand the case to an administrative law judge," and the Appeals Council has the authority to "affirm, modify or reverse the administrative law judge hearing decision or it may adopt, modify or reject a recommended decision." 20 C.F.R. § 404.979; see also 20 C.F.R. § 404.970(a)(3) (providing that Appeals Council will review a case if "[t]he action, findings or conclusions of the administrative law judge are not supported by substantial evidence"); 20 C.F.R. § 404.977(a) (providing that Appeals Council may remand a case "in which additional evidence is needed or additional action by the administrative law judge is required"). Given these broad powers, it is clear that the Appeals Council may review and remand a case if, among other things, it determines that an ALJ's credibility findings are not based on substantial evidence, and that is exactly what occurred here.

Finally, we reject Mr. Martinez's argument that the Appeals Council's remand order limited the scope of the proceedings before the second ALJ and required the latter to make a finding that he was not disabled. To the contrary, although the Appeals Council determined that the first ALJ's disability determination was not supported by substantial evidence, it did not in any way dictate a particular result on remand. Instead, the Appeals Council's only specific instructions to the second ALJ were for the latter to: (1) "[g]ive further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations;" and (2) "[o]btain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base." The Appeals Council also directed the second ALJ in general terms to "offer the claimant an opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision." Contrary to Mr. Martinez's assertions, these instructions did not require any particular result on remand, as the second ALJ was fully authorized to award benefits to Mr. Martinez if such an award was supported by the administrative record developed on remand.

B. Dr. Olivares' Listing Opinion and Treatment Records.

During the course of the remand proceedings, one of Mr. Martinez's treating physicians, Dr. Melaquias Olivares, a family practitioner, forwarded a letter to his counsel. In his letter, Dr. Olivares stated that Mr. Martinez "suffers from multiple body system conditions which . . . are secondary to electrical shock injuries," and he concluded...