Turner v. Astrue

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
ALFELTON TURNER, )
)
Plaintiff, )
) Civ. Action No. 12-1126 (EGS)
v. )
)
CAROLYN W. COLVIN, )
Acting Commissioner of )
Social Security, )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

Plaintiff Alfelton Turner seeks reversal of the final

decision by Defendant Carolyn W. Colvin 1 in her official capacity

as Acting Commissioner of Social Security (the “Commissioner”)

denying his claim for a period of disability and disability

insurance benefits (“DIB”) and for supplemental security income

(“SSI”) payments. In the alternative, Plaintiff seeks an order

to vacate and remand his case to the Social Security

Administration for further proceedings. Pending before the

Court are Plaintiff’s Motion for Judgment of Reversal and

Defendant’s Motion for Judgment of Affirmance. Upon

consideration of the parties’ briefs, the administrative record,

1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin has been
substituted for former Commissioner Michael J. Astrue as the
Defendant in this action.
and the relevant case law, the Court will DENY Plaintiff’s

motion to reverse the Commissioner’s final decision and GRANT

Defendant’s motion to affirm the Commissioner’s final decision.

I. BACKGROUND

Plaintiff is a resident of the District of Columbia.

Compl. ¶ 2. On December 2, 2008, Plaintiff filed applications

for disability and disability insurance benefits (“DIB”) under

Title II of the Social Security Act (“Act”), and for

supplemental security income (“SSI”) payments under Title XVI of

the Act. Administrative Record (“AR”) at 13. He alleges

disability beginning October 13, 2005. AR at 161. On his

disability report, Plaintiff alleged that depression and mood

swings limited his ability to work. AR at 173. His

applications were denied both initially, AR at 85-91, and upon

reconsideration, AR at 96-102.

Once an individual has had a hearing, he may bring a civil

action to review the Commissioner’s final decision in the

district court for the judicial district in which he resides.

Social Security Act, 42 U.S.C. § 405(g). On October 13, 2010,

an Administrative Law Judge (“ALJ”) held a hearing at which

Plaintiff and a Vocational Expert (“VE”) testified. AR at 13,

31. The ALJ issued a decision denying benefits on November 23,

2010. AR at 26. The Appeals Council denied review on May 11,

2012, rendering the ALJ’s decision the final decision of the

2
Commissioner. AR at 1. Therefore, Plaintiff’s claim is ripe

for judicial review before this Court. See 42 U.S.C. § 405(g);

42 U.S.C. § 1383(c); AR at 2-3.

A. Legal Framework

1. Defining Disability and Qualifying for Benefits

To qualify for disability insurance benefits and

supplemental security income under Titles II and XVI of the Act,

Plaintiff must first establish that he is “disabled.” See 42

U.S.C. §§ 423(a)(1)(E). Disability is the “inability to engage

in any substantial gainful activity by reason of any medically

determinable or mental impairment . . . which has lasted or can

be expected to last for a continuous period of not less than 12

months.” Id. § 423(d)(1)(A); see id. § 1382c(a)(3)(A).

Plaintiff is disabled “only if his physical or mental impairment

or impairments are of such severity that he is not only unable

to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.”

Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

2. Sequential Evaluation Process

The Administrative Law Judge (“ALJ”) must conduct a five-

step sequential evaluation to assess a claimant’s alleged

disability. See 20 C.F.R. §§ 404.1520, 416.920 (2012). The

claimant bears the burden of proof at the first four steps, and

3
the burden shifts to the Commissioner at step five. Butler v.

Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004).

First, the ALJ must find that claimant is not presently

engaged in “substantial gainful” work. 20 C.F.R. §§ 404.1520(b),

416.920(b). Second, he must find that claimant has a “severe

impairment” that “significantly limits” his ability to do basic

work activities. Id. §§ 404.1520(c), 416.920(c). Third, if the

ALJ finds that claimant suffers from an impairment that meets

one of those listed in 20 C.F.R. § 404, Subpart P, Appendix 1,

he is deemed disabled and the inquiry ends. Id. §§ 404.1520(d),

416.920(d). If claimant’s impairment does not meet one of those

listed in the Appendix, the ALJ determines his Residual

Functional Capacity (“RFC”) based upon all the evidence of

record. Id. §§ 404.1520(e), 416.920(e). Once he has made a

determination of the claimant’s RFC, the ALJ moves on to step

four to determine whether his RFC allows him to do work that he

used to do, which is called “past relevant work.” Id. §§

404.1520(f), 416.920(f). If the claimant’s RFC does not allow

him to do past relevant work, the ALJ moves on to step five,

where he determines whether the claimant’s RFC allows him to

adjust to any other work, given his age, education, and work

experience. Id. §§ 404.1520(g), 416.920(g). If the ALJ finds

that claimant can either perform past relevant work (at step

4
four) or that he can adjust to any other work (at step five), he

will find that claimant is not disabled. Id.

B. Factual Background

In making its final decision to deny Plaintiff disability

benefits, the ALJ relied on the evidence contained in hearing

testimony and the evidence that Plaintiff submitted during his

application for benefits, including medical records and

evaluations from various doctors. See AR at 13-26.

According to the hearing testimony, Plaintiff was fifty-

four years old on October 13, 2005, the date that he alleges

onset of disability. See id. at 35-36. Plaintiff was covered

by disability insurance through December, 31, 2007. Id. at 36.

For approximately two years prior, he had been working to set up

and move office furniture. Id. at 35. In October 2005,

Plaintiff was sent to prison, id. at 36, for a drug-related

violation of his probation, id. at 45-46, 291. After serving

two and a half years in prison, he was released in April 2008.

Id. at 36, 294-295.

1. Plaintiff’s medical records

Plaintiff receives mental health treatment through the

Veterans Administration. AR at 34. On June 20, 2008, at his

first mental health evaluation subsequent to release from

prison, he was diagnosed with moderately severe major depressive

disorder, cocaine dependence in remission, alcohol abuse, and

5
adjustment disorder. Id. at 298-299. The evaluation noted that

Plaintiff has a history of adjustment disorder and substance

abuse, that he briefly attended a substance abuse rehabilitation

program in 2003 and 2005, and that he received inpatient

psychiatric care in 2004. Id. at 295. Plaintiff admitted to

having had a beer that day, and stated he did not need an

alcohol recovery program. Id. at 299. He also reported that he

was on “red alert” when in public, and suspicious of others

because of his military and work experience. Id. at 297.

Plaintiff briefly attended group therapy, but quit because

he did not trust people. AR at 288. He began individual

psychotherapy with Raphael Mbachu, M.D. in July 2008. Id. at

287-288. At his first visit, he cried “profusely” and

complained of lacking motivation, becoming easily frustrated,

being irritable, and having erratic sleep with nightmares

riddled with violence. Id. at 288. Dr. Mbachu started

Plaintiff on Zoloft for depression, Abilify for his mood, and

Benadryl for insomnia. Id. at 289.

On August 20, 2008, Plaintiff reported “doing well” and

credited the medication for feeling better. AR at 283. His

sleep was “restorative,” he said that he had reduced his alcohol

intake to two beers a day, and he reported getting along better

with his loved one. Id. at 283. He looked forward to going to

a job fair the following day. Id. at 284.

6
 At a follow-up visit in September, Dr. Mbachu noted that

Plaintiff was “still stabilizing” on his medications. AR at

280. Plaintiff reported “doing fine and sleeping okay.” Id. at

279. He did not find the job fair helpful and was worried about

his finances. Id. Dr. Mbachu stressed complete abstinence from

alcohol. Id. at 280. He also suggested an alcohol

rehabilitation program, but Plaintiff declined. Id.

The following month, Plaintiff reported a stable mood, but

complained of feeling frustrated for not being able to find a

job and feeling financial pressure. AR at 277. He admitted to

drinking beer three to four times a week. Id. Dr. Mbachu once

again stressed abstinence and suggested alcohol treatment, but

Plaintiff declined. Id. By December 22, 2008, Plaintiff

reported poor sleep and feeling “in the dumps” for the past two

to three weeks. Id. at 274. He denied alcohol use. Id. Dr.

Mbachu increased his dosage of Zoloft and Benadryl. Id. at 275.

Hoorie Siddique, Ph.D., conducted a psychological

evaluation on behalf of the State agency on January 28, 2009.

AR at 237-240. Plaintiff told Dr. Siddique that he consistently

had problems getting along with people, particularly with

supervisors. Id. at 238. He said he refused all mental health

treatment while incarcerated and resumed treatment upon release

in 2008. Id. Plaintiff also acknowledged a history of alcohol

and crack cocaine abuse and dependence. Id. Based on a range

7
of cognitive tests, Dr. Siddique found that much of Plaintiff’s

cognitive functioning was intact, with only “mild weaknesses.”

Id. at 239. He also determined that Plaintiff’s memory did not

suffer significant damage from substance abuse. Id. He noted

that Plaintiff needed ongoing mental health treatment and

diagnosed him with alcohol dependence in early partial

remission, crack cocaine dependence in sustained full remission,

and possible mood and personality disorders. Id. at 240.

Gemma Nachbahr, Ph.D., a State agency psychiatric

consultant, evaluated Plaintiff on February 9, 2009. Dr.

Nachbahr completed a mental residual functional capacity (“RFC”)

form and opined that Plaintiff had moderate difficulties in

maintaining social functioning and in maintaining concentration.

AR at 251. Dr. Nachbahr concluded that Plaintiff appeared

mentally capable of performing work-related activities with

sustained abstinence from drugs and alcohol. Id. at 257.

At his next visit with Dr. Mbachu on February 10, 2009,

Plaintiff reported “doing okay,” but was bothered by not having

a job or money. AR at 270. He reported feeling better in

response to the increase in medication. Id.

On April 24, 2009, Plaintiff asked to participate in “CWT,”

a job training and matching program for veterans, but was told

by his nurse practitioner, Marguerite McGarrah, N.P., that he

would first have to complete a substance abuse rehabilitation

8
program. AR at 262. McGarrah reported a “heavy odor” of

alcohol on his breath, id. at 264, and opined that she did not

think he could work unless he was in a substance abuse program

with very frequent toxicology screening tests, id. at 262.

Patricia Cott., Ph.D., a State agency psychologist,

evaluated Plaintiff on June 1, 2009 and found that with full and

sustained abstinence from substances, AR at 321, he would only

have mild limitations in daily activities, social functioning,

and concentration, id. at 319.

On June 25, 2009, Plaintiff reported to Dr. Mbachu that he

was “holding on” and still had no job. AR at 340. He had run

out of medication the month before, and was feeling paranoid.

Id. Three months later, he reported that things were slow

without a job or income, and that he occasionally found

temporary jobs helping people move. Id. at 336. He said that

he drank sparingly because he could not afford to drink. Id.

Dr. Mbachu encouraged Plaintiff to look for jobs at home

improvement stores and food stores as a stocker. Id. at 337.

On November 3, 2009, Plaintiff reported “doing well” despite

financial difficulties. Id. at 332. He continued to look for a

job, continued to drink alcohol once a week, and took his

medication without side effects. Id. Dr. Mbachu encouraged him

to stop using alcohol and to monitor his anger. Id. at 333.

9
 On May 18, 2010, Dr. Mbachu completed an RFC questionnaire

that Plaintiff had given him. He gave Plaintiff a “fair”

prognosis overall. AR at 353. He commented that Plaintiff

demonstrated a persistent depressive state during each of the

ten office visits between 2008 and 2010. Id. at 353. Dr.

Mbachu indicated that Plaintiff had a “fair response to

treatment,” but that the effectiveness of treatment was hampered

by Plaintiff’s inability to find a job. Id. He also stated

that Plaintiff has difficulty focusing for long periods of time,

which could be a result of his psychiatric disorders, so he

would need intermittent breaks during the work day. Id. at 355.

He commented that Plaintiff occasionally has difficulty with his

memory and that stressful situations may trigger paranoia. Id.

at 356. On the RFC form, Dr. Mbachu checked a box indicating

that Plaintiff would be absent about two days per month due to

his impairments and treatment. Id. at 357. He also indicated

that Plaintiff’s ability to maintain concentration for a two

hour segment and ability to perform at a consistent pace without

an unreasonable number and length of rest periods was “seriously

limited, but not precluded.” Id. at 355. The form defines this

phrase as meaning the ability to function in these areas is

“seriously limited and less than satisfactory, but not precluded

in all circumstances.” Id.

10
 2. Testimony of the Vocational Expert

At the time of his hearing before the ALJ on October 13,

2010, Plaintiff was fifty-nine years old. See AR at 35.

Plaintiff has an associate degree in criminal administration,

id. at 34, and his past relevant work includes jobs as a library

technician, day laborer, and department store worker. Id. at

53, 219.

At the hearing, the ALJ asked the Vocational Expert what

kind of work a hypothetical individual with Plaintiff’s RFC and

limitations could perform. The VE testified that such an

individual could perform past relevant work as a department

store worker and other “medium, unskilled” jobs, which include

work as a general laundry laborer, kitchen helper, and hand

packager. AR at 54-55. The VE testified that approximately

2,000 general laundry laborer jobs, 7,500 kitchen helper jobs,

and 500 hand packager jobs existed in the metropolitan

Washington, D.C. area. Id. at 55. The VE also said, however,

that an individual would not be a competitive candidate for

these jobs if his impairment or treatment caused him to be

absent from work for two days per month. Id.

3. The ALJ’s sequential evaluation and findings

The ALJ found at step one of the sequential evaluation that

Plaintiff had not engaged in substantial gainful work since

October 13, 2005. AR at 15. At step two, the ALJ found that

11
Plaintiff had severe impairments that caused more than minimal

functional limitations on his ability to do basic work

activities: mild degenerative joint disease, affective disorder,

personality disorder, and substance abuse disorder. Id. At

step three, the ALJ found that Plaintiff’s impairments did not

meet any of those listed in Appendix 1 of 20 C.F.R. Part 404,

Subpart P. Id. at 15-16.

At step four, the ALJ found that Plaintiff had the RFC to

perform medium work as defined in 20 C.F.R. Sections 404.1567(c)

and 416.967(c). AR at 17. “Medium work” involves lifting no

more than fifty pounds at a time and frequent lifting or

carrying of up to twenty-five pounds. 20 C.F.R. §§ 404.1567(c),

416.967(c) (2013). An individual who can do medium work can

also do sedentary and light work. Id.

The ALJ made three specific findings regarding Plaintiff’s

RFC. First, the ALJ found that Plaintiff has mental

limitations, but can be expected or required to understand,

remember, and execute commands with simple instructions. AR at

17. Second, the ALJ found that Plaintiff is seriously limited

in the ability to maintain attention for up to two-hour

segments, but not precluded from doing so. Id. Third, the ALJ

found that Plaintiff has serious limitations in the ability to

perform at a consistent pace without an unreasonable number or

length of rest periods, but is not precluded from doing so. Id.

12
 At step four, the ALJ concluded that Plaintiff’s RFC allows

him to perform past relevant work as a department store worker.

AR at 24. At step five, the ALJ concluded that his RFC, age,

education, and work experience allows Plaintiff to adjust to

jobs that exist in significant numbers locally and nationally.

Id. at 25. Because he found that Plaintiff could do past

relevant work and also adjust to work that exists in significant

numbers, the ALJ determined that Plaintiff was not disabled

under the Act. Id. at 26.

II. STANDARD OF REVIEW

Judicial review in this Court is statutorily limited to

whether the Commissioner, acting through the ALJ, correctly

applied the relevant law, and whether there is substantial

evidence to support the Commissioner’s final decision that Mr.

Turner was not disabled. See 42 U.S.C. § 405(g); Butler, 353

F.3d at 999. “Substantial evidence” is “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

It “requires more than a scintilla, but can be satisfied by

something less than a preponderance of the evidence.” Butler,

353 F.3d at 999 (quoting Florida Mun. Power Agency v. F.E.R.C.,

315 F.3d 362, 366 (D.C. Cir. 2003) (internal quotation omitted).

A court’s review of administrative decisions for substantial

evidence requires “careful scrutiny of the entire record.”

13
Brown v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986). But a court

“may not reweigh the evidence presented to it . . . [or] replace

the [Commissioner’s] judgment concerning the weight and validity

of the evidence with its own. Davis v. Heckler, 566 F. Supp.

1193, 1195 (D.D.C. 1983).

III. DISCUSSION

Plaintiff does not dispute the ALJ’s conclusions under the

first three steps of its sequential evaluation. Pl.’s Mem.

Supp. Mot. J. Reversal at 13, ECF No. 9. He does, however,

dispute the ALJ’s conclusion at step four that Plaintiff can

perform past relevant work, and the ALJ’s conclusion at step

five that Plaintiff can adjust to other available work. Id. at

14.

Plaintiff’s challenge to these two conclusions rests upon

the argument that the ALJ made three errors in evaluating Dr.

Mbachu’s opinion evidence. First, Plaintiff argues that the ALJ

should have given controlling weight to the entirety of Dr.

Mbachu’s opinion rather than rejecting the doctor’s opinion that

Plaintiff would miss two days of work each month due to his

impairments and treatment. Pl.’s Mem. at 14. Second, he argues

that the ALJ should have given more weight to Dr. Mbachu’s

opinion that Plaintiff was seriously limited in two areas of

basic work function. Id. at 15. Third, Plaintiff argues that

had the ALJ done these two things (one: given controlling weight

14
to Dr. Mbachu’s opinion about absences per month, and two: given

more weight to Dr. Mbachu’s opinion about Plaintiff’s serious

limitations), he would have found that Plaintiff could not do

past relevant work or any other work, and was therefore

disabled. Id. at 19-20. The Commissioner refutes each of these

claims. 2 The Court will examine each of Plaintiff’s arguments

below.

A. Substantial evidence supports the ALJ’s decision not to
give controlling weight to Dr. Mbachu’s medical opinion
regarding two days’ absence per month

Plaintiff contends that the ALJ erroneously rejected the

portion of Dr. Mbachu’s opinion that stated Plaintiff would miss

two days of work each month due to his impairments and

treatment. Id. at 14. Plaintiff claims that the ALJ had to

give this opinion controlling weight because Dr. Mbachu is

Plaintiff’s “treating source.” Pl.’s Mem. at 15. A “treating

source” is a psychologist or physician who has provided medical

treatment or evaluation to Plaintiff and has an ongoing

relationship with him. See 20 C.F.R. §§ 404.1502, 416.902.

Plaintiff further claims that Social Security Ruling (“SSR”) 96-

2
In her brief, the Commissioner independently raises an argument
related to the reason Plaintiff alleges he was unable to work.
Def.’s Mem. Supp. Mot. J. Affirm at 11, ECF No. 10. Because the
Commissioner raises it outside of the ALJ’s final decision,
however, this Court cannot and does not review the merits of
that argument here. See 42 U.S.C.A. § 405(g); Butler v.
Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004). (“[W]e assess only
whether the ALJ’s finding[s] . . . [are] based on substantial
evidence and a correct application of the law”).
15
2p interprets Sections 404.1502 and 416.902 of the Social

Security regulations to prohibit the ALJ from picking which

portions of a treating source’s medical opinion to accept or

reject. Pl.’s Mem. at 15 (citing generally SSR 96-2p: Policy

Interpretation Ruling Title II and XVI: Giving Controlling

Weight to Treating Source Medical Opinions, 1996 WL 374188 (July

2, 1996)).

The Commissioner responds that it (1) it correctly declined

to give Dr. Mbachu’s entire opinion controlling weight, Def.’s

Mem. at 11-12, and that (2) SSR 96-2p does not prohibit the ALJ

from crediting some parts of a treating source’s opinion and

rejecting other portions. 3 Id. at 13. The Commissioner’s

argument is persuasive.

1. Relevant Law

“Because a claimant's treating physicians have great

familiarity with his condition, their reports must be accorded

substantial weight.” Butler, 353 F.3d at 1003. (citation and

internal quotation omitted). “A treating physician's [opinion]

is binding on the fact-finder unless contradicted by substantial

evidence.” Id. (citation and internal quotation omitted). The

3
The Commissioner does not expressly concede that Dr. Mbachu is
Plaintiff’s treating source, but her brief appears to assume
that he is. For example, the Commissioner’s brief cites two
district court cases to support the proposition that the ALJ can
reject portions of a treating physician’s opinion. Def.’s Mem.
at 12. Accordingly, the Court’s discussion will also assume
that Dr. Mbachu is Plaintiff’s treating source.
16
ALJ must provide “good reasons” for the weight it gives to a

treating source’s opinion. 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2); SSR 96-2p at *5. The ALJ’s reasons must be

“sufficiently specific to make clear to [the court]” why the ALJ

gave it that weight. SSR 96-2p at *5. If the ALJ “rejects the

opinion of a treating physician [he must] explain his reasons

for doing so.” Butler, 353 F.3d at 1003. (citation and internal

quotation omitted). Contrary to Plaintiff’s argument, Pl.’s

Mem. at 15; Pl.’s Resp. to Def.’s Mot. at 5, the ALJ is not

required to explicitly address four factors described in SSR 96-

2p to analyze Dr. Mbachu’s opinion as a treating source.

2. Discussion

Dr. Mbachu’s opinion that Plaintiff would require two days’

absence from work each month is an important component of

Plaintiff’s disability claim, because according to the

Vocational Expert, an individual who is absent that frequently

is not competitive for past relevant work. See AR at 55. In

rejecting this opinion (i.e., in giving it no weight), the ALJ

specifically explains that the opinion is contradicted by the

“relatively mild symptoms reported” by Plaintiff and the

“efficacy of psychotropic medication.” See id. at 24. Contrary

to Plaintiff’s assertion, the ALJ did not merely offer a

“cursory statement,” Pl.’s Mem. at 17, that lacked the requisite

specificity, Pl.’s Resp. at 8. In rejecting Dr. Mbachu’s two-

17
day absence opinion, the ALJ (i) analyzed the credibility of

Plaintiff’s statements regarding the severity of his symptoms,

AR at 19-20, (ii) considered evidence contained in Dr. Mbachu’s

own treatment notes, id. at 22-24, and (iii) considered opinion

evidence from other physicians, id. at 20-22. Upon

consideration of the ALJ’s analysis, the Court finds that the

ALJ gives good reasons with sufficient specificity for why he

rejected Dr. Mbachu’s two-day absence opinion.

a. The credibility of Plaintiff’s statements regarding the
severity of his impairments

The ALJ found that:

There are many troubling issues with respect to the
credibility of the claimant’s statements regarding the
severity of his physical and mental limitations. Of great
significance, the undersigned notes that the claimant
testified that he refused all treatment while he was
incarcerated from October 2005 through April 2008. The
undersigned acknowledges that this refusal could be
characterized as a symptom of the claimant’s mental
illness. However, the record is devoid of objective
clinical evidence to support the claimant’s statements
regarding the severity of his physical and mental
limitations during this time, creating a very thorny and
insurmountable problem for one alleging onset of disability
in October 2005. That the claimant could voluntarily
decline all treatment without suffering any apparent
limitations, repercussions, or consequences brings into
question the credibility of his statements regarding the
severity of his physical and mental impairments.

AR at 19.

As noted earlier, to be considered disabled under the Act

for the alleged period of disability from October 13, 2005 to

date, Plaintiff’s impairments must be severe enough to render

18
him unable to do work he had been doing. See 42 U.S.C.A. §§

423(d)(1)(A), 1382c(a)(3)(B). Plaintiff cannot only rely on his

personal statements to establish the severity of his

impairments. Id. §§ 423(d)(5)(A), 1382c(a)(3)(H)(i). Rather,

he must also furnish objective medical evidence of the symptoms

established by medically acceptable clinical or laboratory

techniques. Id. But the ALJ cannot dismiss Plaintiff’s

credibility based solely on the lack of objective medical

evidence. See SSR 96-7p: Evaluation of Symptoms in Disability

Claims: Assessing the Credibility of An Individual's

Statements, 1996 WL 374186, at *1 (July 2, 1996); Sloan v.

Astrue, 538 F. Supp. 2d 152, 156-157 (D.D.C. 2008) (finding that

the ALJ erred in dismissing Plaintiff’s subjective claims of

pain based solely on the absence of such claims from the medical

reports). The ALJ must provide specific reasons for why he

finds Plaintiff’s credibility regarding the severity of his

impairments undermined by the lack of objective medical

evidence. See SSR 96-7p at *2; Brown v. Barnhart, 408 F. Supp.

2d 28, 37 (D.D.C. 2006).

The ALJ noted that the record was “devoid of objective

clinical evidence” to support Plaintiff’s statements regarding

the severity of his limitations between October 2005 and April

2008. AR at 19. But unlike in Sloan, he does not discredit

Plaintiff’s statements based solely on the lack of such

19
objective medical evidence. Rather, he specifically reasons

that Plaintiff’s credibility is brought into question because

Plaintiff did not suffer any “apparent limitations,

repercussions, or consequences” throughout the entire period in

which he voluntarily declined treatment. Id.

In Brown, the ALJ acknowledged the plaintiff’s history of

depression, but noted that the plaintiff told her doctor that

she did not need to see a psychiatrist. 408 F. Supp. 2d at 37.

The ALJ also noted that despite the plaintiff’s complaints

regarding the severity of her symptoms, she was still able to

grocery shop and do other household activities associated with

the housekeeping work that the ALJ determined she could do. Id.

The Court in Brown decided that the ALJ properly found that the

plaintiff’s alleged symptoms were “not very credible” because

the ALJ had made this finding based on an analysis of the

record. Id.

Similarly, the record here also supports the ALJ’s finding

that there are “troubling issues,” AR at 19, with Plaintiff’s

credibility. Like the plaintiff in Brown, Plaintiff here also

voluntarily refused medical treatment for his mental illness for

part of the period in which he alleges disability. See id. The

ALJ acknowledges that refusal of treatment itself could be a

symptom of mental illness. Id. But like the plaintiff in

Brown, here, Plaintiff’s own actions during the period of

20
alleged disability also undermine his credibility regarding his

symptoms to an extent. Dr. Mbachu noted that Plaintiff was able

to occasionally find odd jobs or temporary jobs despite the

alleged severity of his impairments. See id. at 20 (citing AR

at 336). In addition, Plaintiff failed to qualify for a work

program, not because of his impairments, but because he declined

to complete a substance abuse treatment program. Id.; see also

AR at 277, 280. Plaintiff also continued to drink against Dr.

Mbachu’s advice to abstain. Id. at 20. Although the ALJ

acknowledged that Plaintiff’s alcohol use could be characterized

as a symptom of his substance abuse disorder, he found his

statements regarding the severity of his depressive symptoms

were further undermined by his refusal to comply with a

treatment program. Id. at 20. It appears that the ALJ here

provided specific reasons to question the credibility of

Plaintiff’s statements regarding his symptoms. The ALJ’s

reasons for doing so were grounded in evidence in the record.

Therefore, substantial evidence supports the ALJ’s finding that

Plaintiff’s reported symptoms were “relatively mild.”

b. Evidence contained in Dr. Mbachu’s own treatment notes

The ALJ explained that Dr. Mbachu’s treatment notes do not

support Dr. Mbachu’s opinion that Plaintiff would require two

days of absence from work each month. Rather, Dr. Mbachu’s

notes reflect the “efficacy of psychotropic medication.” See AR

21
at 24. The ALJ noted that according to Dr. Mbachu’s treatment

record, Plaintiff’s medication regimen “resulted in better sleep

and produced improvement in his depressive symptoms.” Id. at

20. He also noted that Dr. Mbachu’s treatment notes indicated

only minor nausea as a result of Plaintiff’s psychotropic

medication, which contradicts Plaintiff testimony regarding

alleged side effects. Id. Therefore, the doctor’s treatment

notes do not reflect substantial side effects from medication.

The record also provides substantial evidence to support

the ALJ’s claim that isolated incidents recorded in Dr. Mbachu’s

treatment notes in December 2008, June 2009, and June 2010 did

not indicate a worsening of symptoms. In December 2008,

Plaintiff had only felt “in the dumps” for the two to three

weeks prior, Def.’s Mem. at 13-14 (citing AR at 274), following

months of effective treatment during which Dr. Mbachu reported

that Plaintiff was “doing well,” AR at 283, “still stabilizing”

on medication, AR at 280, and had a “stable mood,” AR at 277.

Plaintiff reported feeling paranoid in June 2009 after he had

run out of medication, Def.’s Mem. at 14 (citing AR at 340), but

no longer reported paranoia after Dr. Mbachu renewed his

prescription, see generally AR 323-339, 395-440. Also,

Plaintiff in December 2010 felt “frustrated and worthless

[because] he [was] not able to secure a job,” not because

treatment was ineffective. Id. at 436 (noting that Plaintiff

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was “compliant with meds with no side effects”). Accordingly,

Dr. Mbachu’s treatment notes reflect the “efficacy of

psychotropic medication,” id. at 24, and do not support his

opinion that Plaintiff’s limitations would cause him to be

absent two days a month.

c. Opinion evidence from other doctors

The ALJ also explained that Dr. Mbachu’s two days of

absence opinion is inconsistent with the opinions of other

doctors who evaluated Plaintiff. In analyzing the record, the

ALJ accorded substantial weight to the opinion of Dr. Nachbahr,

a State agency psychiatric consultant, who concluded that

Plaintiff appeared mentally capable of performing work-related

activities with sustained abstinence from drugs and alcohol. AR

at 24. The ALJ found that Dr. Nachbahr’s opinion is consistent

with those of other doctors and medical practitioners who had

evaluated Plaintiff. Id. First, the assessment of Dr. Cott, a

State agency psychologist, generally supports Dr. Nachbahr’s

opinion. Id.; see AR at 319, 321 (finding that Plaintiff would

only have mild limitations in daily activities, social

functioning, and concentration with full and sustained

abstinence from substances). Dr. Nachbahr’s opinion is also

consistent with the evaluation of Dr. Siddique, a psychologist

that the State agency consulted. Id. at 24; see AR at 239

(finding that Plaintiff’s cognitive functioning only had “mild

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weaknesses” and that his memory did not suffer significant

damage from substance abuse). And Dr. Nachbahr’s opinion is

well supported by Nurse Practitioner McGarrah’s assessment. Id.

at 24; see AR at 262 (opining that Plaintiff could not work

unless he was in a substance abuse program with very frequent

toxicology screening tests). Therefore, none of the State

agency medical consultants gave opinions that support Dr.

Mbachu’s two days of absence opinion.

Plaintiff claims that “[t]he only evidence inconsistent

with Dr. Mbachu[‘s] is that which was provided [by] State

Medical Consultants.” Pl.’s Mem. at 17. But this claim is

without merit. Contrary to Plaintiff’s claim, the record shows

that Dr. Mbachu’s own treatment records are consistent with the

opinions of Dr. Nachbahr, Dr. Cott, and Nurse Practitioner

McGarrah that Plaintiff could work with sustained abstinence

from alcohol. Dr. Mbachu’s treatment notes indicate that he had

advised Plaintiff to abstain from alcohol use in September 2008,

AR at 280, October 2008, id. at 277, and as late as September

2010, id. at 409. He also opined on Plaintiff’s RFC form that

alcohol contributed to Plaintiff’s mental limitations because it

“may impair memory and lead to mistakes.” Id. at 357.

Moreover, in September 2009, Dr. Mbachu had encouraged Plaintiff

to look for jobs at home improvement stores and food stores as a

stocker. Id. at 337. Accordingly, it appears that not even Dr.

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Mbachu thought that Plaintiff’s impairments were so severe that

he could not work. Consistent with the opinions of State agency

professionals (Dr. Nachbahr, Dr. Cott, and Nurse Practitioner

McGarrah), Dr. Mbachu also thought that Plaintiff’s alcohol use

contributed to his mental impairments and that abstention was a

necessary precursor to competitive employment.

Based on the foregoing analysis, the ALJ rejected Dr.

Mbachu’s opinion that Plaintiff required two days of absence a

month. The ALJ was “not persuaded that Plaintiff’s treatment

could not be managed to accommodate his work schedule and

minimize treatment absences.” AR at 24. Because the ALJ

provided good reasons with sufficient specificity for rejecting

Dr. Mbachu’s opinion that Plaintiff requires two days of absence

each month, this Court finds that substantial evidence supports

the ALJ's decision to do so.

B. Substantial evidence supports the ALJ’s RFC determination
that Plaintiff had serious limitations, but was not
precluded from work

Plaintiff’s second argument with respect to the ALJ’s

evaluation of Dr. Mbachu’s opinion evidence is that had the ALJ

given proper weight to Plaintiff’s “serious limitations” in his

RFC finding, he would have found him disabled under the Act.

Pl.’s Mem. at 18; Pl.’s Resp. at 7. The ALJ found that

Plaintiff was “seriously limited, but not precluded” in two

categories of basic work function: (1) his ability to maintain

25
concentration, and (2) his ability to perform at a consistent

work pace. See AR at 17. These two findings are directly

attributed to Dr. Mbachu’s opinion on the RFC form that he

filled out. See id. at 355.

Plaintiff claims that the ALJ failed to analyze his two

serious limitations under the Social Security Administration’s

Program Operations Manual System (“POMS”). Pl.’s Mem. at 18;

Pl.’s Resp. at 6-7. POMS is an internal handbook for Social

Security Administration (“SSA”) employees to refer to when

processing Social Security benefits. See SSA’s Program

Operations Manual System Home, https://secure.ssa.gov/apps10/

(last visited August 21, 2013). According to POMS, a

“substantial loss of ability” in one of the following four basic

work categories “would justify a finding of inability to perform

other [unskilled] work even for persons with favorable age,

education, and work experience:”

• understand, carry out, and remember simple instructions;
• make judgments that are commensurate with the functions of
unskilled work, i.e., simple work-related decisions.
• respond appropriately to supervision, coworkers and work
situations; and
• deal with changes in a routine work setting.

POMS Section: DI 25020.010,

https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010 (last

visited August 21, 2013). According to POMS, if Plaintiff

indeed suffered a “substantial loss of ability,” he would

26
require a “sheltered work setting where special consideration

and attention are provided.” See id. Plaintiff claims that his

two serious limitations qualify as a “substantial loss of

ability” and therefore require him to work in a “sheltered work

setting.” See Pl.’s Mem. at 19.

1. Relevant Law

POMS is an agency interpretation that has persuasive force

but neither binds this court or the ALJ. See Power v. Barnhart,

292 F.3d 781, 786 (D.C. Cir. 2002) (“[W]e grant an agency’s

interpretation only so much deference as its persuasiveness

warrants.”) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)). Parties agree that POMS is not binding upon the ALJ.

Def.’s Mem. at 15; Pl.’s Resp. at 6. Therefore, the ALJ has the

discretion to determine whether or not Plaintiff’s limitations

render him unable to perform work. The ALJ’s determination must

be supported by “substantial evidence.” See Butler, 353 F.3d at

999 (“[W]e assess only whether the ALJ's finding that [a

claimant] is not [disabled] is based on substantial evidence and

a correct application of the law”).

2. Discussion

Upon review of the administrative record, the Court finds

that there is substantial evidence to support the ALJ’s RFC

determination at step four that Plaintiff’s limitations do not

render him unable to perform other work. The ALJ first claims

27
that even though Dr. Mbachu found serious limitations in

Plaintiff’s ability to maintain concentration and work pace, Dr.

Mbachu did not state that Plaintiff’s symptoms prevent him from

working. AR at 24. The ALJ supports this claim by referring to

the plain meaning of Plaintiff’s level of impairment in these

two categories of work function. See id. As defined by the RFC

form that Dr. Mbachu filled out, “seriously limited, but not

precluded means ability to function is seriously limited and

less than satisfactory, but not precluded in all circumstances.”

AR at 355. Plaintiff argues that the ALJ’s determination that

this level of severity is not enough to justify disability is

“arbitrary.” Pl.’s Resp. at 6. Neither party cites case law to

support their respective positions.

This Circuit has not opined on the significance of the

phrase “seriously limited, but not precluded” in a disability

evaluation, but three Circuits have. See Colvin v. Barnhart,

475 F.3d 727, 731 (6th Cir. 2007) (“seriously limited, but not

precluded” means that is able to perform to a limited degree in

a vocational category); see also Cantrell v. Apfel, 231 F.3d

1104, 1107-1108 (finding that the term “fair” meant “seriously

limited, but not precluded,” which “does not, on its own,

declare that the claimant cannot return to past work . . . [but]

requires a review of the entire record in order to judge whether

the balance tips toward functional ability or toward

28
disability”; but see Cruse v. U.S. Dep’t. of Health & Human

Serv.’s, 49 F.3d 614, 618 (10th Cir. 1995) (finding that the

phrase “is evidence of disablity" for the purpose of meeting a

listed disability), superseded on other grounds by regulation as

stated in Carpenter v. Astrue, 537 F.3d 1262, 1268 (10th Cir.

2008). In Colvin, the plaintiff argued that “seriously limited

but not precluded” in a particular work function meant that she

was unable to perform that work function and therefore precluded

from past relevant work. Colvin, 475 F.3d at 731. Here,

Plaintiff similarly argues that “seriously limited but not

precluded” in a particular work function means that he requires

a “sheltered work setting” and is therefore precluded from past

relevant work and other work that exists. Pl.’s Mem. at 19.

But, as the Sixth Circuit held in Colvin,

[Plaintiff’s] interpretation cannot stand. The plain
meaning of “seriously limited but not precluded” is that
one is not precluded from performing in that area. It
defies logic to assert that a finding of “not precluded”
actually means that one is precluded. Further, the medical
assessment form used to evaluate Colvin's abilities also
contained the “none” option, which is defined as “[n]o
useful ability to function in this area.”

475 F.3d at 731. Colvin’s plain meaning analysis of the phrase

is particularly instructive here, where the relevant facts are

similar to this case, where this Circuit offers no relevant

guidance, and where neither party has cited case law to support

their respective positions.

29
 Like the form used in Colvin, Dr. Mbachu’s mental RFC form

also had the option of “no useful ability to function.” AR at

355. Had Plaintiff been completely precluded, Dr. Mbachu had

the option of checking the box labeled “no useful ability to

function.” See id. Moreover, like in Colvin, the VE here

testified that Plaintiff could perform past relevant work

despite being “seriously limited” in a number of work

categories. Id. at 53-54. Accordingly, the Court finds that

“seriously limited, but not precluded” in two areas of work

function does not mean Plaintiff was completely precluded from

work.

The Commissioner further points out that the other doctors

who assessed Plaintiff’s mental limitations also determined that

Plaintiff could meet the demands of competitive employment.

Def.’s Mem. at 16. The ALJ noted that every such doctor opined

that Plaintiff had the ability to perform basic work-related

activities with sustained abstinence from drugs and alcohol.

See AR at 24. The Court finds that the record supports this

characterization of Plaintiff’s abilities. See id. at 239

(finding by Dr. Siddique that “Mr. Turner’s pattern of

performance showed indications of mild relative deterioration or

impairment in some of his cognitive abilities . . . but much of

his cognitive functioning remains intact at this time”); see

also AR at 251 (finding by Dr. Nachbahr that all of Plaintiff’s

30
functional limitations are either mild or moderate); and AR at

319 (finding by Dr. Cott that all of Plaintiff’s functional

limitations are mild). Moreover, the Commissioner points out

that “nowhere in the record does any doctor suggest, nor does

Plaintiff point to any evidence showing, that Plaintiff needs a

sheltered work environment.” Def.’s Mem. at 16 n.5. Upon

reviewing the record, the Court agrees with the Commissioner.

Therefore, the Court finds that there was “substantial evidence”

in the record for the ALJ to determine that Plaintiff’s serious

limitations in two categories of work function do not preclude

him from all work.

C. Substantial evidence supports the ALJ’s vocational findings
that Plaintiff could perform past relevant work and other
work that exists in the economy

The ALJ relied on the testimony of a VE to determine at

step four that Plaintiff could perform past relevant work as a

department store worker, and at step five that he could do other

“medium, unskilled” jobs that exists in sufficient numbers in

the national economy. AR at 24-25; see AR at 54-55.

Plaintiff’s third and final claim is that the ALJ erred at both

steps. Pl.’s Mem. at 19; Pl.’s Resp. at 9. He argues that had

the ALJ correctly accepted Dr. Mbachu’s opinion regarding

Plaintiff’s absence from work and correctly weighed Plaintiff’s

serious work limitations, the ALJ would have found Plaintiff

unable to perform either kind of work. Id. Because the ALJ’s

31
findings are based on the VE’s testimony, the question here is

whether the VE’s testimony constitutes “substantial evidence” to

support the ALJ’s findings. The Court finds that it does.

1. Relevant Law

The ALJ may consult a VE to determine whether Plaintiff’s

work skills can be used to do past relevant work or other work

that exists in the national economy. 20 C.F.R. §§

404.1560(b)(2), 404.1566(e). If the ALJ relies on VE testimony

to assess Plaintiff’s ability to do work, the ALJ “must

accurately describe the claimant's physical impairments in any

[hypothetical] question posed to the expert.” Butler, 353 F.3d

at 1005 (quoting Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C.

Cir. 1989)). Deficiencies in the ALJ's description of the

claimant's condition “undermine the foundation for the expert's

ultimate conclusion that there are alternative jobs” that the

claimant is capable of performing. Id. at 1006 (quoting Simms,

877 F.2d at 1053).

A VE’s testimony concerning a plaintiff’s ability to work

may constitute substantial evidence where the testimony is given

in response to a hypothetical question that accurately sets

forth the plaintiff's physical and mental impairments. Colvin,

475 F.3d at 732; see Kearse v. Massanari, 73 F. App'x 601, 604

(4th Cir. 2003) (affirming denial of benefits where ALJ’s

32
hypothetical questions posed to the VE were supported by

substantial evidence and ALJ considered all relevant evidence,

including claimant's testimony, the objective medical evidence

of record, and findings of the state agency physicians and

psychologists); see also Bayliss v. Barnhart, 427 F.3d 1211,

1217-18 (9th Cir. 2005) (affirming denial of benefits where

hypothetical question posed to the VE reflected all of the

limitations the ALJ found credible and supported by substantial

evidence).

2. Discussion

Here, the hypothetical questions that the ALJ asked the VE

reflected the serious limitations in maintaining attention and

work pace that the ALJ in step four found Plaintiff to suffer

from. See AR at 53-54. The ALJ’s hypothetical questions also

reflected Plaintiff’s RFC, age, education, and work experience.

See id. In response to the ALJ’s questions, the VE testified

that an individual with Plaintiff’s serious limitations could

perform his past work as a department store worker. Id. at 54.

He also testified that such an individual with Plaintiff’s RFC,

age, education, and work experience could perform other “medium,

unskilled” jobs, which include work as a general laundry

laborer, kitchen helper, and hand packager. Id. at 54-55. The

VE further testified that such work exists in significant

numbers in the regional and national economy. Id. Based on the

33
VE’s testimony, the ALJ found at step four that Plaintiff could

perform past relevant work, and at step five that Plaintiff

could perform other work. See id. at 24-25. The Court finds

that the ALJ’s hypotheticals accurately reflected its

determination of Plaintiff’s limitations, RFC, age, education,

and work experience. Moreover, as discussed earlier, the ALJ’s

determination of Plaintiff’s limitations and RFC are supported

by substantial evidence. In determining Plaintiff’s RFC, the

ALJ had considered Dr. Mbachu’s treatment records, State agency

doctor assessments, and Plaintiff’s hearing testimony. Id. at

24. Therefore, the Court finds that substantial evidence also

supports the ALJ’s step four and step five conclusions regarding

Plaintiff’s vocational capabilities. See Colvin, 475 F.3d at

732; see also Kearse, 73 F. App'x at 604.

The ALJ also asked the VE whether a hypothetical individual

whose impairments and treatment would require him to be absent

twice a month would be a competitive candidate for the jobs he

could perform. The VE testified that such an individual would

not be a competitive candidate. AR at 55. The ALJ here also

accurately described Dr. Mbachu’s opinion regarding Plaintiff’s

expected absence from work, so there is no question as to the

validity of the VE’s testimony in reliance on this opinion. See

Butler, 353 F.3d at 1005. But, as discussed above, substantial

evidence supports the ALJ’s decision to reject Dr. Mbachu’s

34
opinion regarding Plaintiff’s expected absence from work for two

days a month. Therefore, the VE’s testimony regarding a

hypothetical individual who needs two days’ absence each month

simply does not apply to Plaintiff. Accordingly, the Court

finds that substantial evidence supports the ALJ’s finding that

Plaintiff is a competitive candidate for the jobs he can

perform, notwithstanding the portion of Dr. Mbachu’s opinion

that is inconsistent with other substantial evidence in the

record.

IV. CONCLUSION

Based on the foregoing review of the administrative record

and relevant law, the Court finds that the Administrative Law

Judge applied the correct legal standards when he denied

Plaintiff’s claim for disability insurance benefits and

supplemental security income and that the ALJ’s conclusions are

supported by substantial evidence. Accordingly, Plaintiff’s

Motion for Judgment of Reversal is DENIED and Defendant’s Motion

for Judgment of Affirmance is GRANTED. An appropriate Order

accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
August 29, 2013

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