Paris v. Astrue

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

__________________________________

DIESA PARIS, :
:
Plaintiff, :
:
v. : Civil Action 11-2163 (GK)
:
MICHAEL J. ASTRUE, :
Commissioner of Social Security, :
:
Defendant. :
__________________________________

MEMORANDUM OPINION

Plaintiff, Diesa Paris, brings this action seeking judicial

review of a final decision of the Commissioner of the Social

Security Administration (“Commissioner”) pursuant to Section

205(g) of the Social Security Act, 42 U.S.C. § 405(g), denying

her claims for Disability Insurance Benefits (“DIB”) pursuant to

Title II of the Social Security Act, 42 U.S.C. §§ 42 et seq.

This matter is before the Court on Plaintiff’s Motion for

Judgment of Reversal [Dkt. No. 8] and Defendant’s Motion for

Judgment of Affirmance [Dkt. No. 10]. Upon consideration of the

parties’ cross-motions, the administrative record, and the

entire record herein, and for the reasons stated below,

Plaintiff’s Motion for Judgment of Reversal is hereby granted in

part and denied in part, and Defendant’s Motion for Judgment of

Affirmance is hereby denied.

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I. BACKGROUND

Plaintiff is a fifty-year-old woman who resides in

Washington, DC. Administrative Record (“AR”) at 37, 102-105

[Dkt. No. 3]. She has a high-school education and no specialized

training. AR at 38, 136. Plaintiff last worked full time on

January 31, 2007 as a retail manager. See AR at 102, 132. She

has been diagnosed with systemic lupus erythematosus, psoriatic

arthritis, and major depressive order. AR at 15.

As a result of these disorders, Plaintiff filed an

application for Disability Insurance Benefits pursuant to Title

II of the Social Security Act on February 25, 2008. Plaintiff’s

claim was denied initially and upon reconsideration. On April 1,

2010, a hearing regarding Plaintiff’s alleged disability was

held in front of an Administrative Law Judge (“ALJ”). On June

11, 2010, the ALJ denied Plaintiff’s request. Thereafter,

Plaintiff requested the Appeals Council to review the decision

of the ALJ. On October 3, 2011, the Appeals Council affirmed the

decision of the ALJ.

A. Disability Determination Process

In order to qualify for disability insurance benefits, an

individual must prove that she has a disability that renders her

unable “to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment” for

a period of “not less than 12 months.” 42 U.S.C. §§ 423(a)(1) &

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(d)(1)(A). The claimant must support her claim of impairment

with “[o]bjective medical evidence” that is “established by

medically acceptable clinical or laboratory diagnostic

techniques.” 42 U.S.C. § 423(d)(5)(A). In addition, the

impairment must be severe enough to prevent the claimant from

doing her previous work and work commensurate with her age,

education, and work experience that exists in the national

economy. 42 U.S.C. § 423(d)(2)(A).

The Social Security Administration (“SSA”) uses a five-step

evaluation process to determine whether a claimant is disabled,

thus qualifying for benefits. 20 C.F.R. § 404.1520(a)(1). A

clear determination of disability or non-disability at any step

is definitive, and the process ends at that step. 20 C.F.R. §

404.1520(a)(4). In the first step, a claimant is disqualified if

she is currently engaged in “substantial gainful activity.” 20

C.F.R. § 404.1520(a)(4)(i). In the second step, a claimant is

disqualified if she does not have a “severe medically

determinable physical or mental impairment” that is proven “by

medically acceptable clinical and laboratory diagnostic

techniques.” 20 C.F.R. §§ 404.1508 & 404.1520(a)(4)(ii). In the

third step, a claimant qualifies for benefits if her

impairment(s) meets or equals an impairment listed in 20 C.F.R.

§ 404, subpart P, appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii).

Between the third and fourth step, the SSA uses the entire

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record to make a determination of the claimant's residual

functional capacity (“RFC”), which is “the most [the claimant]

can still do despite [the] limitations” created by the

impairment. 20 C.F.R. §§ 404.1520(a)(4) & 404.1545(a)(1). In the

fourth step, a claimant is disqualified if her RFC shows that

she is still able to do her past relevant work. 20 C.F.R. §

404.1520(a)(4)(iv). In the fifth step, a claimant is

disqualified if her RFC shows that she is capable of adapting to

“other work that exists in the national economy.” 20 C.F.R. §§

404.1520(a)(4)(v) & 404.1545(a)(5)(ii). If the claim survives

these five steps, then the claimant is determined disabled and

qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(v).

B. The ALJ’s Ruling

The ALJ applied the sequential five-step process described,

supra, and determined that, while Plaintiff suffered from severe

impairments including depression, psoriatic arthritis, and

systemic lupus erythematosus, she was not disabled within the

meaning of the Social Security Act. The issues in dispute in

this case arise in steps four and five of the assessment

process.

At step four of the assessment, the ALJ determined that

Plaintiff had the RFC to perform a range of sedentary work so

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long as she had a “sit/stand option” 1 and was limited to

unskilled tasks involving no more than occasional contact with

the public. AR at 24. At step five of the evaluation process,

the ALJ relied on a vocational expert’s testimony to determine

that Plaintiff “is capable of making a successful adjustment to

[] work that exists in significant numbers in the national

economy.” Id. at 26.

II. STANDARD OF REVIEW

A district court is limited in its review of the SSA’s

findings to determining whether those findings are based on

substantial evidence. 42 U.S.C. § 405(g); Butler v. Barnhart,

353 F.3d 992, 999 (D.C. Cir. 2004); Poulin v. Bowen, 817 F.2d

865, 870 (D.C. Cir. 1987). Substantial evidence “means such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion,” Richardson v. Perales, 402 U.S. 389,

401 (1971) (citation omitted), requiring “more than a scintilla,

but ... something less than a preponderance of the evidence.”

Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir.

2010) (citation omitted).

A court must “carefully scrutinize the entire record” but

may not reweigh the evidence or supplant the SSA's judgment of

1
The ALJ specified that “[t]he claimant needs a sit/stand
option; that is, she should not be required to stand for more
than 20/30 minutes before being permitted to sit, or be required
to sit for more than 20/30 minutes before being permitted to
stand.” AR at 24.

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the weight of the evidence with its own. It must only review

whether the ALJ's findings are based on substantial evidence and

whether the ALJ correctly applied the law. Butler, 353 F.3d at

999; Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C. 1994); Davis v.

Heckler, 566 F.Supp. 1193, 1195 (D.D.C. 1983). Finally,

substantial deference should be given to the ALJ's decision, but

the evidence should be read in the light most favorable to the

claimant. See Davis, 862 F.Supp. at 4; see also Simms v.

Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (reviewing court

must determine whether the Commissioner, acting through the ALJ,

"has analyzed all evidence and has sufficiently explained the

weight he [or she] has given to obviously probative

exhibits....").

III. ANALYSIS

A. The ALJ’s Evaluation of Dr. Lumpkins’ Opinion

The administrative record contains progress notes and

opinions from Tanya Lumpkins, M.D., a rheumatologist and one of

Plaintiff’s treating physicians.

Plaintiff argues that the ALJ did not properly evaluate Dr.

Lumpkins’ opinions because he: (1) failed to consider whether

her opinion was entitled to controlling weight; (2) did not

discuss the proper factors for the evaluation of medical

opinions; and (3) did not evaluate many of the limitations noted

in her January 18, 2008 opinion. Pl.’s Mot. at 6-8. Defendant

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responds that: (1) the ALJ accurately discussed when a treating

physician’s opinion should be afforded controlling weight; (2)

the ALJ properly considered relevant regulatory factors when

weighing Dr. Lumpkins’ opinion; and (3) to the extent the ALJ

failed to properly evaluate any portion of Dr. Lumpkins’

opinion, such error does not warrant remand. Def.’s Mot. at 15,

18-19.

The case law in this Circuit is clear that an ALJ must

accord substantial weight to the reports and opinions of a

claimant’s treating physician. Butler, 353 F.3d at 1003

(“Because a claimant’s treating physicians have great

familiarity with [her] condition, their reports must be accorded

substantial weight.”) (internal citation omitted) (internal

quotation omitted). A treating physician’s report is “binding on

the fact-finder unless contradicted by substantial evidence.”

Id. (internal citation omitted) (internal quotation omitted).

Defendant is correct that the ALJ properly accorded Dr.

Lumpkins’ opinion significant weight. After discussing the

regulatory instructions for weighing medical opinions, including

when a treating physician’s opinion is entitled to controlling

weight (AR at 19), the ALJ discussed Dr. Lumpkins’ medical

opinion and, consistent with the law of this Circuit, accorded

it “significant weight.” AR at 20; see Payne v. Shalala, Civ. A.

No. 93-0288, 1993 WL 405757 at *3 (D.D.C Sept. 24, 1993) (“The

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ALJ was obligated to give significant weight to the opinion of

[] Plaintiff’s treating physician [] so long that opinion was

supported by acceptable laboratory and clinical diagnostic

techniques and was not contradicted by substantial evidence in

the record.”).

Defendant is also correct that, contrary to Plaintiff’s

argument, the ALJ was not required to discuss each of the

relevant regulatory factors when deciding what weight to give

Dr. Lumpkins’ opinion. The regulation at issue states that a ALJ

will “consider all of the following factors in deciding the

weight [to] give to any medical opinion.” 20 C.F.R. §

404.1527(d) (emphasis added). Notably, the regulation requires

the ALJ to “consider” certain factors, but does not require the

ALJ to recite and discuss each of the factors in the written

decision. Plaintiff points to no authority saying that the ALJ

must do so.

However, Plaintiff is correct that the ALJ failed to

properly evaluate certain relevant portions of Dr. Lumpkins

January 18, 2008 opinion. For instance, the ALJ did not discuss,

at any point in the five-step evaluation process, Dr. Lumpkins’

opinion that Plaintiff could not bend, twist or kneel and could

only occasionally move her neck, reach at shoulder level, stand,

walk, and perform repetitive movements. AR at 211. The ALJ was

required to explain why he paid no attention to Dr. Lumpkins’

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opinion on these issues. Butler, 353 F.3d at 1003 (“We []

require an ALJ who rejects the opinion of a treating physician

[to] explain his [or her] reasons for doing so.” (internal

citation omitted) (internal quotation omitted).

Accordingly, upon remand, the ALJ must explain the weight

he attaches to Dr. Lumpkins’ opinion, and if he disregards any

of her conclusions, he must explain his reasons for doing so.

B. The ALJ’s Assessment of Plaintiff’s RFC

At step four of the disability determination process, the

Commissioner is required to show that a claimant’s RFC allows

her to perform other work. 20 C.F.R. §§ 404.1520(f),

416.920(f)(1). Assessing RFC is based upon all relevant

evidence, which may include the claimant’s ability to meet

physical or mental demands of work and observations of

limitations by family and friends. 20 C.F.R. § 416.945.

Plaintiff argues that the ALJ’s RFC assessment is not

supported by substantial evidence because the ALJ did not

evaluate medical opinions that conflicted with his RFC

assessment. Pl.’s Mot. at 11. Plaintiff further argues that the

ALJ was required “to perform a more detailed assessment of the

Plaintiff’s capacity to perform the mental demands of work.” Id.

at 14 (emphasis in the original). Defendant responds that, to

the extent the ALJ failed to evaluate certain medical opinions,

such error does not warrant reversal or remand. Def.’s Mot. at

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18-19. Defendant further argues that “the ALJ correctly

evaluated Plaintiff’s mental functioning as the regulations at

20 C.F.R. § 404.1520a direct. That is, [the ALJ] made findings

in the four broad areas of mental functioning that were

supported by substantial evidence, and he cited to that

evidence.” Def.’s Mot. at 16.

An ALJ’s decision is statutorily required to include a

discussion of “findings and conclusions, and the reasons or

basis therefor, on all the material issues of fact, law or

discretion presented on the record.” 5 U.S.C. §

557(c)(3)(A)(1988). “When the ALJ arrives at a conclusion

regarding [ ] functions that contradicts some part of the

evidence on the record, the ALJ must explain his [or her]

rationale, for ‘[t]he judiciary can scarcely perform its

assigned review function ... without some indication ... [as to]

whether [the] evidence was rejected rather than simply

ignored.’” Ross v. Astrue, 636 F. Supp. 2d 127, 133 (D.C. Cir.

2009) (citing Brown v. Bowen, 794 F.2d 703, 708 (D.C. Cir.

1986)). “The ALJ has a duty to explain why [she] either ignored

or rejected contradictory evidence.” Thomas v. Astrue, 677 F.

Supp. 2d 300, 309 (D.D.C. 2010) (citing See v. Wash. Metro.

Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994) (“[W]hen faced

with evidence in the record contradicting his [or her]

conclusion, an ALJ must affirmatively reject that contradictory

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evidence and explain his rationale for doing so.”) (emphasis

added)).

Plaintiff is correct that the ALJ failed to properly

evaluate evidence that contradicted his RFC assessment. For

instance, the ALJ acknowledged Dr. Cott’s finding that Plaintiff

had experienced one or two episodes of decompensation, each of

extended duration. AR at 19. The ALJ also acknowledged that Dr.

Cott’s assessment was affirmed by Dr. Nachbahr. Id. However, at

step four of the disability determination process, the ALJ

concluded, without explanation, that “[t]he record does not

disclose any episodes of decompensation of extended duration,”

id. at 23, which was directly contrary to the opinions of Dr.

Cott and Dr. Nachbahr. The ALJ’s conclusory determination, with

no explanation as to why he rejected or ignored their opinions

is insufficient.

Similarly, the ALJ failed to explain why he chose not to

consider those portions of Dr. Garmoe’s report that contradicted

the his RFC assessment. More specifically, Dr. Garmoe found that

Plaintiff was severely depressed, discouraged and withdrawn, and

that persons with profiles such as Plaintiff’s usually had

marked distress and severe impairment in functioning. AR at 441.

However, the ALJ did not reference this part of Dr. Garmoe’s

report in his RFC assessment, let alone affirmatively reject it

and explain his rationale for doing so.

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 In sum, the ALJ failed to properly evaluate evidence that

contradicted his RFC assessment. Therefore, upon remand, the ALJ

must reconsider the medical testimony in its entirety, and

provide an explanation for rejecting any evidence that

contradicts his determination.

C. The ALJ’s Reliance Upon the Testimony of the
Vocational Expert

At step five in the disability determination process, if

the claimant is found unable to do any work she has done in the

past because of severe impairment, the ALJ must consider her

RFC, age, education, and work experience to see if she can do

other types of work. 20 C.F.R. § 404.1520(f)(1). If there are

non-exertional limitations in question, the ALJ may rely on the

expertise of a vocational expert (“VE”) to assist in

ascertaining a claimant’s RFC. 2 20 C.F.R. §§ 404.1566(e),

416.966(e). In doing so, the ALJ may pose a hypothetical

question to the VE, communicating the claimant’s age, education,

work experience and RFC. If the hypothetical put to the VE is

flawed or contains omissions, it undermines “the foundation for

the expert’s ultimate conclusion that there are alternative jobs

appellant can do.” Simms v. Sullivan, 877 F.2d 1047, 1051 (D.C.

Cir. 1989).

2
“The Secretary must introduce expert vocational testimony to
prove that a significant number of jobs are available for the
claimant.” Smith v. Bowen, 826 F.2d 1120, 1122 (D.C. Cir. 1987).

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 Plaintiff argues that the ALJ’s question to the VE was

fatally defective because the ALJ “ignored or otherwise

overlooked the restrictions set forth by Dr. Lumpkins, the

Plaintiff’s treating physician, without explanation.” Pl.’s Mot.

at 17. Plaintiff further argues that the ALJ “failed to properly

address the Plaintiff’s limitations on concentration,

persistence, or pace in his hypothetical question to the

vocational expert.” Id. at 17-18. Defendant responds that the

ALJ’s step five findings are supported by substantial evidence,

and that to the extent that there are any errors with the

hypothetical posed to the VE, none of those errors warrant

remand. Def.’s Mot. at 18-20.

An ALJ who looks to the opinion of a VE at stage five of

the disability determination process “must accurately describe

the claimant’s physical impairment in any question posed to the

expert.” Butler, 353 F.3d at 1006. The ALJ’s hypothetical

question to the VE must “present a faithful summary of the

treating physician’s diagnosis unless the ALJ provides good

reason to disregard the physician’s conclusions.” Lockard v.

Apfel, 175 F. Supp. 2d 28, 33 (D.D.C. 2001).

Plaintiff is correct that the ALJ’s hypothetical did not

fully and accurately describe Plaintiff’s impairments. In fact,

Defendant concedes that the ALJ failed to include in his

hypothetical question a number of the vocationally-relevant

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restrictions set forth in Dr. Lumpkins’ January 18, 2008

opinion. 3 See Def.’s Mot. at 18. Despite this concession,

Defendant contends that Plaintiff has demonstrated no basis for

remand because, even accepting all of the limitations set forth

by Dr. Lumpkins, Plaintiff would still be capable of performing

the jobs identified by the VE. Defendant’s argument has no merit

because the ALJ “must accurately describe” the claimant’s

impairments unless he provides good reason for disregarding the

physician’s conclusions. Butler, 353 F.3d at 1006 (emphasis

added). The ALJ did not accurately describe Plaintiff’s

impairments, nor did he explain why he disregarded Dr. Lumpkins’

opinion.

Furthermore, the ALJ found in his RFC that Plaintiff has

“moderate” limitations in concentration, persistence or pace,

but his hypothetical question to the VE stated that Plaintiff

had only “mild” limitations in concentration persistence or

pace. See AR at 23, 24, 55.

These deficiencies in the ALJ’s hypothetical undermine the

foundation for the VE’s conclusion. Accordingly, upon remand, if

the ALJ elects to call a VE, the hypothetical posed must

3
As discussed, supra, Dr. Lumpkins concluded that Plaintiff
could not bend, twist or kneel and could only occasionally move
her neck, reach at shoulder level, stand, walk, and perform
repetitive movements. AR at 211.

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describe the Plaintiff’s impairments accurately in light of

objective medical testimony.

IV. CONCLUSION

Upon consideration of the parties’ cross-motions, the

administrative record, and the entire record herein, and for the

reasons set forth in this Memorandum Opinion, Plaintiff’s Motion

for Judgment of Reversal is hereby granted in part and denied in

part, and Defendant’s Motion for Judgment of Affirmance is

hereby denied.

This case is hereby remanded to the Commissioner for

rulings in steps four and five of the disability determination

process. In consideration of these steps, the entire medical

record, including Dr. Lumpkins’ January 18, 2008 opinion, must

be given due regard.

/s/________________________
August ___, 2012 Gladys Kessler
United States District Judge

Copies to: attorneys on record via ECF

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