Scott v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUAN A. SCOTT,

Plaintiff,
v. Civil Action No. 10-1757 (JEB)
MICHAEL J. ASTRUE,
Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION

Plaintiff Juan A. Scott brings this pro se action seeking reversal of the decision made by

the Commissioner of Social Security that he is not disabled under the Social Security Act, 42

U.S.C. §§ 1381-1383, and therefore not entitled to supplemental security income (SSI).

Although Plaintiff never mentions 42 U.S.C. § 405(g), Defendant correctly points out that this

must be the basis for his suit. See Mot. at 1 n.1. As the Court finds that substantial evidence

supports the Commissioner’s decision, it will grant Defendant’s Motion for Judgment of

Affirmance.

I. Background

A. Factual Background

Plaintiff is a 53-year-old man with a high school education and no vocational training.

Administrative Record (AR) at 87, 108. From 1990 to 1991, he worked in a warehouse with the

Metropolitan Police Department performing duties such as driving a forklift, receiving supplies,

lifting boxes, and driving a bus. Id. at 105. According to Plaintiff, on March 11, 1991, he was

involved in a work-related accident that resulted in a “herniated disk, spine [and] neck problems,

1
[a] bad hip, chron[ic] migraine[s], [and] heart problems.” Id. at 104-05, 657-59. Multiple

examinations by a bevy of medical practitioners over the course of many years have revealed

that Plaintiff indeed suffers from both physical and mental infirmities, some stemming from his

1991 accident. Given the remarkable number of doctors who have examined or treated Plaintiff,

what follows is not an exhaustive list of all doctors or medical opinions in the eighteen years

between Plaintiff’s accident and the October 20, 2009, decision to deny his SSI application.

Instead, the Court summarizes the most salient ones.

1. Physical Difficulties

From March 1991 to at least November 2009, Plaintiff was examined intermittently by

internist Dr. Charles F. Colao. During what appear to be regular medical visits that began after

the 1991 accident and lasted until 1993, Colao noted tenderness, pain, and limited range of

motion in Plaintiff’s neck and lower back, id. at 168-93, but he nevertheless did not recommend

surgery because he observed no herniated disks. Id. at 185. Colao also repeatedly opined that

Plaintiff was disabled and recommended light physical duty. Id. at 168-93.

During later examinations conducted by Colao between 2002 and 2009, Plaintiff was

again diagnosed with cervical and lumbar spine disorders. Id. at 169-70, 275-76 (2002

examinations), 277-78 (2003 examination), 392-93 (2006 examination), 420-21 (2007

examination), 425 (2008 examination), 624 (2009 examination). According to Colao, Plaintiff

had radiculopathy in his extremities (noted in 2009, 2008, 2007, 2006, and 2002 examinations);

bulging and herniated disks (2006, 2003, and 2002); flattening of the spinal cord (2006); “mild to

moderate” spinal stenosis (2006 and 2002); muscle atrophy and weakness in his extremities

(2009, 2007, 2006, and 2002); tenderness in his lumbar spine (2009, 2008, 2007, and 2003);

chronic headaches (2009, 2007, and 2006); and difficulty with walking, bending, squatting, and

2
touching his toes (2007, 2006, and 2002). Id. at 169-70, 275-76, 277-78, 392-93, 420-21, 425,

624. Colao also stated at different times that he believed Plaintiff was disabled. Id. at 170, 425,

624 (in 2009, 2008, and 2002, Plaintiff was “disabled for work”); id. at 393 (in 2006, Plaintiff

was “permanently and totally disabled”); id. at 421 (in 2007, Plaintiff was “disabled for his

occupation and for all work”).

Other doctors appear to have arrived at different conclusions regarding the extent of

Plaintiff’s physical impairments. For instance, in a November 22, 2004, examination, internist

Dr. Elliot Aleskow noted that Plaintiff “[had] limitation of range of motion of the cervical spine

and lumbosacral spine region. Plain x-rays,” however, “[did] not reveal significant abnormalities

in the lumbosacral or cervical spine region.” Id. at 325-26. Additionally, Plaintiff “had good

strength in all four extremities,” and “[t]here was no evidence of muscle wasting.” Id. at 326.

Another examination of Plaintiff by Dr. Aleskow three years later yielded identical results. See

id. at 394-404 (November 18, 2007, examination). Again, an x-ray revealed “no fractures,

dislocations or other bony abnormalities” in either the cervical or lumbosacral spine regions. Id.

at 397. In the 2007 report, Dr. Aleskow also added that Plaintiff was “able to transfer without

any difficulty and ambulate about the office without any difficulty,” but “had some mild

difficulties with some fine motor skills of the hands.” Id. at 396-97.

In a March 14, 2007, consultative examination, neurologist Dr. Chitra R. Chari concluded

that Plaintiff’s “neurologic examination [was] essentially normal.” Id. at 410. Dr. Chari also

found “no atrophy in any of the muscle groups,” stated that Plaintiff had “4+ to 5/5 strength in all

4 limbs,” and observed that Plaintiff “took his shoes and socks off by himself and . . . could get

on and off the examination table without assistance.” Id. at 409.

3
 On April 16, 2003, Plaintiff was also examined by Dr. Eugene Miknowski. Id. at 289-96.

Dr. Miknowski reported that Plaintiff had “decreased range of motion in his lumbar spine, both

shoulders, cervical spine and hips.” Id. at 291. X-rays of the cervical spine, however, revealed

that there was “no evidence of fracture,” and the cervical vertebrae were “mostly unremarkable

[in] appearance.” Id. A “lumbar spine x-ray also demonstrated no fractures” and was “normal.”

Id. Dr. Miknowski then added: “Considering [Plaintiff’s] chronic pain, he is not recommended

for heavy lifting, pushing or pulling – mild to moderate [work-related activities] do not appear to

be restricted. Walking is mildly restricted. Standing or sitting are not restricted. Hearing,

speaking, and hand manipulation are not restricted.” Id. at 292.

Among the many other medical practitioners who have also examined Plaintiff was

neurological surgeon Dr. George J. Mathews, whose medical findings are conveyed in an August

28, 2003, report. Id. at 423. During his consultative examination, Mathews interpreted

Plaintiff’s MRI from April 27, 1999. Id. Consistent with an earlier, contemporaneous

interpretation of that MRI, see id. at 232-33, Mathews found in Plaintiff’s cervical spine

evidence of disk herniation, spinal stenosis, and spinal cord compression, but no nerve root

compression. Id. at 423. Plaintiff’s lumbar spine, on the other hand, was “normal except for

some physiological protrusion of the lumbar discs.” Id. Mathews nonetheless concluded that

Plaintiff was “totally and permanently disabled.” Id.

Finally, two separate physicians from Disability Determination Services (DDS) also

arrived at conclusions regarding Plaintiff’s physical limitations similar to the findings of Drs.

Aleskow, Chari, and Miknowski. On December 29, 2004, and again on March 26, 2007, DDS

physicians, relying in large part on Plaintiff’s medical records, concluded that Plaintiff could

occasionally lift twenty pounds, could frequently lift ten pounds, and could stand, walk, or sit for

4
six hours in an eight-hour workday. See id. at 334, 413. Plaintiff, however, was limited in his

ability to push or pull with his extremities and had some postural limitations such as the ability to

climb ladders, ropes, and scaffolds. See id. at 334-35, 413-14. A face-to-face interview with

Plaintiff by an interviewer from the Social Security Administration also revealed no limitations

in Plaintiff’s hearing, reading, breathing, understanding, concentrating, talking, answering,

sitting, standing, walking, seeing, using of hands, or writing. See id. at 111.

2. Mental Difficulties

In addition to physical difficulties, a number of doctors have also diagnosed Plaintiff with

mental difficulties. From as early as August 11, 2004, Plaintiff began receiving mental health

care from the Scruples Corporation. See id. at 318-23, 341-43, 427-622. Although he was never

hospitalized, Plaintiff was diagnosed with depression and prescribed medication. See id. at 341-

42, 364-65, 614-19, 660-61. In a 2006 comprehensive psychiatric evaluation at the Scruples

Corporation, Plaintiff was noted by psychiatrist Dr. Amir Rehman to be in stable condition. Id.

at 364; see also id. at 448, 555, 558, 561, 564, 586 (Plaintiff was at different times in 2005 and

2006 “psychiatrically stable”). Plaintiff also “report[ed] progressive improvements [in his

depression], and denie[d] any major side effects.” Id. at 364. Although Plaintiff had poor

impulse control, id. at 342, and occasional anxiety and irritability, id. at 620, 660-61, there was

no evidence of suicidal or homicidal ideations, id. at 319, or auditory and visual hallucinations.

Id. at 341.

Three DDS physicians also reached similar conclusions regarding Plaintiff’s mental

impairments. See id. at 300-17, 346-63, 368-85. On July 16, 2003, the first Mental Residual

Functional Capacity Assessment (“RFC mental assessment”) of Plaintiff concluded that he was

moderately limited in four areas of mental activity: 1) “ability to maintain attention and

5
concentration for extended periods”; 2) “ability to perform activities within a schedule, maintain

regular attendance, and be punctual within customary tolerances”; 3) “ability to complete a

normal work-day and workweek without [psychologically-based] interruptions”; and 4) “ability

to accept instructions and respond appropriately to criticism from supervisors.” Id. at 300-01.

Plaintiff was then found to be mildly limited in “Activities of Daily Living” and “Social

Functioning,” moderately limited in “Maintaining Concentration, Persistence, or Pace,” and had

experienced no episodes of decompensation of extended duration. Id. at 314. The second RFC

mental assessment conducted by another physician on February 2, 2005, reached virtually the

same conclusions. See id. at 346-47. On September 22, 2006, the third RFC mental assessment

of Plaintiff by yet another DDS physician added that Plaintiff was also moderately limited in the

“ability to understand and remember detailed instructions,” id. at 368, moderately – rather than

mildly – limited in “Activities of Daily Living” and “Social Functioning,” and had experienced

one or two episodes of decompensation of extended duration. Id. at 382.

B. Procedural Background

The record shows that Plaintiff has spent the past decade – and perhaps more – either

applying for SSI benefits for his 1991 accident or appealing denials of those applications. See

AR at 83-86 (2002 SSI application); Supplemental Complaint at 2-3 (reference to a 1999

appeal). Before the Court is his most recent application filed on April 27, 2004, in which he,

again, sought SSI benefits for his 1991 accident. AR at 87-90.

Plaintiff’s application was first denied in a letter dated February 4, 2005, and again on

reconsideration in a letter dated March 29, 2007. Id. at 72-78. Represented by counsel, he then

sought and received a hearing before an Administrative Law Judge. Id. at 58, 626-46. The

outcome was no better. On March 31, 2008, the ALJ issued a decision denying Plaintiff’s

6
application on the basis that he could perform a range of “light exertional work,” significant

opportunities for which were available in the national economy. Id. at 41-53. Upon appeal, the

Social Security Administration’s Appeals Council vacated and remanded the decision with

instructions to: (1) “evaluate the treating and examining source opinions . . . and explain the

weight given to such opinion[s]”; (2) “[f]urther evaluate the [Plaintiff’s] subjective complaints”;

(3) “[e]valuate the other source opinions”; and (4) “[o]btain evidence from a vocational expert to

clarify the effect of the assessed limitations on [Plaintiff’s] occupational base.” Id. at 35. A

second hearing was held on August 6, 2009, in which a new ALJ heard testimony from a

vocational expert and from Plaintiff, who was again represented by counsel. Id. at 647-83. On

remand, the ALJ issued yet another denial of Plaintiff’s application in an opinion dated October

20, 2009. Id. at 15-31. The Appeals Council denied Plaintiff’s request for review, making the

second ALJ’s decision the Commissioner’s final one. Id. at 7-9. Plaintiff subsequently brought

this suit challenging the Commissioner’s final decision.

II. Legal Standard

The Social Security Act gives federal district courts the power “to enter, upon the

pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision

of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”

42 U.S.C. § 405(g). A reviewing court, however, must affirm the decision of the Commissioner

if it is based on substantial evidence in the record and the correct application of the relevant legal

standards. Id.; Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004); Brown v. Bowen, 794

F.2d 703, 705 (D.C. Cir. 1986). “Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Brown, 794 F.2d at 705 (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)). The test “‘requires more than a scintilla, but

7
can be satisfied by something less than a preponderance of the evidence.’” Butler, 353 F.3d at

999 (quoting Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365-66 (D.C. Cir. 2003)).

Finally, determining whether the Commissioner’s decision is supported by substantial evidence

and free of legal error requires the court to “carefully scrutinize the entire record.” Davis v.

Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983); see also Butler, 353 F.3d at 999. In doing so,

however, the court must not “replace the [Commissioner’s] judgment concerning the weight and

validity of the evidence with its own.” Davis, 566 F. Supp. at 1195.

III. Analysis

Although Plaintiff’s pro se submissions to the Court fall woefully short of advancing his

cause, a generous reading of those submissions reveals two implicit arguments for reversing the

Commissioner’s decision. First, Plaintiff can be said to assert a general claim that the

Commissioner somehow and somewhere erred in his disability determination. See Compl. at 2-

3. Even though Plaintiff bases his claim on the fact that the case “was remanded back to the ALJ

to correct the findings in his decision,” see id., the Court will, of course, review the decision

made after remand. 1 Second, Plaintiff appears to argue that the presence of new and material

evidence warrants remand. See Supp. Compl. at 1. Plaintiff’s arguments, such as they are, will

be addressed in turn.

A. The Commissioner’s Disability Determination

To qualify for supplemental security income under the Social Security Act, a claimant

must establish that he is “disabled.” 42 U.S.C. § 1382(a)(1). Plaintiff’s objective here – as it

seems to have been since he was injured twenty-one years ago – is to be declared disabled and

1
Plaintiff also raises claims – at least he believes he does – against his former attorneys, Scott Elkind and
Steven Shea, and the CEOs of the Scruples Corporation, Mr. and Mrs. Sharon Yorke Cyrus. Compl. at 2-3. As he
does not name them as defendants, the Court is powerless to act on these purported claims.

8
thereby qualify to obtain SSI benefits. By all accounts, Plaintiff indeed suffers from at least

some physical and mental problems. That conclusion, however, is by no means sufficient to

render him legally disabled under the Act.

An individual is considered “disabled” if he is “unable to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than twelve months.” Id. § 1382c(a)(3)(A). Additionally, an individual can be

determined to be under a disability “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. § 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for

determining a claimant’s purported disability. See 20 C.F.R. § 416.920. First, the claimant must

show that he is not presently engaged in a “substantial gainful activity.” Id. § 416.920(a)(4)(i).

If he is engaged in such activity, the claimant is conclusively not disabled regardless of his

medical condition, age, education, and work experience. Id. § 416.920(b). Second, a claimant

must show that he has a “severe medically determinable physical or mental impairment.” Id. §

416.920(a)(4)(ii). Such impairment must “significantly limit[] [the claimant’s] physical or

mental ability to do basic work activities.” Id. § 416.920(c). Third, the claimant must show that

his impairment meets or equals an impairment listed in Appendix 1 to the Commissioner’s

regulations. Id. § 416.920(a)(4)(iii). If the claimant’s impairment is listed, then he is

conclusively presumed disabled and the inquiry ends. Id. § 416.920(d). If the impairment is not

listed, the Commissioner moves on to the next step, but must first determine the claimant’s

9
residual functional capacity (“RFC”), id. § 416.920(e), which reflects “what an individual can

still do despite his or her limitations.” Ross v. Astrue, 636 F. Supp. 2d 127, 132 (D.D.C. 2009).

Fourth, the claimant must show, based on the RFC, that his impairment prevents him from

performing his “past relevant work.” 20 C.F.R. § 416.920(a)(4)(iv). Fifth, once the claimant has

met the burden of proof at the first four steps, the burden shifts to the Commissioner at the last

step to show that the claimant is capable of “mak[ing] an adjustment to other work” based on his

RFC, age, education, and work experience. Id. § 416.920(a)(4)(v); Butler, 353 F.3d at 997 (“The

claimant carries the burden of proof on the first four steps.”).

Here, the ALJ on remand arrived at findings favorable to Plaintiff at steps one and two:

Plaintiff was not engaged in substantial gainful activity and had severe medical impairments.

AR at 21. The ALJ, however, made findings adverse to Plaintiff at step three, the RFC

determination, step four, and step five. As such, the Court shall only address those specific

findings, and it shall do so bearing in mind that a court’s role when reviewing the

Commissioner’s disability decisions is “not to determine . . . whether [Plaintiff] is disabled,” but

to “assess only whether the ALJ’s finding that [Plaintiff] is not is based on substantial evidence

and a correct application of the law.” Butler, 353 F.3d at 999.

1. The Step-Three Determination

Plaintiff failed to meet his burden of proving that either his physical or mental

impairments meet or equal any of those listed in Appendix 1. With respect to Plaintiff’s physical

impairments, the ALJ considered Listing 1.04, which deals with disorders of the spine. AR at

21-22. That listing provides in relevant part that in order to render a person disabled, disorders

of the spine must “result[] in compromise of a nerve root . . . or the spinal cord” and must

include:

10
 A. Evidence of nerve root compression characterized by neuro-
anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine); or

C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and weakness,
and resulting in inability to ambulate effectively, as defined in
1.00B2b.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (emphasis added). 2 Listing 1.00B2b then defines the

“inability to ambulate effectively” as:

[A]n extreme limitation of the ability to walk; i.e., an impairment(s)
that interferes very seriously with the individual’s ability to
independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower
extremity functioning . . . to permit independent ambulation without
the use of a hand-held assistive device(s) that limits the functioning
of both upper extremities.

Id. § 1.00B2b(1) (emphasis added). Although Plaintiff’s physical impairments satisfy some of

the conditions of Listing 1.04, “‘for a claimant to show that his impairment matches a listing, it

must meet all of the specified medical criteria.’” Beynum v. Barnhart, 435 F. Supp. 2d 142, 146

(D.D.C. 2006) (emphasis added) (quoting Sullivan v. Zebley, 493 U.S. 521, 529 (1990)). When

an impairment “manifests only some of [the] criteria [of a Listing], no matter how severely, [it]

does not qualify.” Id.

As the ALJ points out, AR at 22, the record does not show any evidence of nerve root

compression in either Plaintiff’s cervical or lumbar spine, a requirement of Listing 1.04A. See

id. at 194-95, 198, 199-200, 205-06, 220-21, 232-33, 423 (MRIs taken at different times and

interpreted by different doctors showing no nerve root compression). The ALJ also points out,
2
Listing 1.04 also contains a B section that has been omitted as it requires a diagnosis of spinal
arachnoiditis, a condition that Plaintiff has never been diagnosed with.

11
id. at 22, that there is evidence that Plaintiff maintains the ability to ambulate effectively, which

removes his impairment from Listing 1.04C. See, e.g., id. at 396-97 (Dr. Aleskow noted

Plaintiff was “able to transfer without any difficulty and ambulate about the office without any

difficulty”); id., at 409 (Dr. Chari noted “no atrophy in any of [Plaintiff’s] muscle groups,”

Plaintiff had “4+ to 5/5 strength in all 4 limbs,” and he “could get on and off the examination

table without assistance”). Because examining physicians noted that Plaintiff had significant

strength in his limbs and could ambulate without difficulty, there was evidence he did not have

the kind of “extreme limitation of the ability to walk” required for his impairment to meet Listing

1.04C. The ALJ’s determination that Plaintiff’s physical impairment does not match Listings

1.04A or 1.04C is thus well grounded in substantial evidence found in the record and may not be

disturbed.

With respect to Plaintiff’s mental impairments, the ALJ considered Listing 12.04, which

deals with mood disorders. AR at 22. The ALJ was also supported by substantial evidence in

the record when he determined that Plaintiff’s mental impairments did not satisfy Listing 12.04.

That Listing requires a plaintiff to prove at least two of the following: “1. Marked restriction of

activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3.

Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of

decompensation, each of extended duration.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.

None is present here. All three DDS physicians who examined Plaintiff noted that he had mild

or moderate limitations in a number of functional areas but no marked limitations. See AR at

300-17, 346-63, 368-85. Plaintiff also had at most one or two episodes of decompensation. Id.

at 314, 360, 382. The Commissioner’s determination was thus based on substantial evidence.

2. The RFC Determination

12
 Substantial evidence also supports the ALJ’s conclusion that Plaintiff’s RFC rendered

him capable of performing “a full range of light exertional work, and alternatively sedentary

exertional work.” Id. at 23. A “full range of light work” involves

lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide
range of light work, [the claimant] must have the ability to do
substantially all of these activities.

20 C.F.R. § 416.967(b). Sedentary work, on the other hand, involves

lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although
a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out
job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.

Id. § 416.967(a).

In making his determination that Plaintiff could perform either light or sedentary work,

the ALJ relied on the medical conclusions of Drs. Aleskow, Chari, Miknowski, and the two DDS

physicians who assessed Plaintiff’s RFC. See AR at 23-29. The Court will focus on whether

substantial evidence supports the ALJ’s determination that Plaintiff can do light work because “if

someone can do light work . . . [then] he or she can also do sedentary work, unless there are

additional limiting factors such as loss of fine dexterity or inability to sit for long periods of

time.” 20 C.F.R. § 416.967(b).

The five doctors mentioned above examined Plaintiff at different times and for different

reasons, but they are consistent in one thing: Plaintiff retains the capacity to do the kind of light

work spelled out in § 416.967(b). Miknowski, for instance, concluded that although Plaintiff

13
could not lift heavy objects and was “mildly restricted” in his walking, he was nonetheless

capable of “mild to moderate” work-related activities and could stand, sit, hear, speak, and

manipulate his hands without restriction. See AR at 292. Aleskow concluded that Plaintiff “had

good strength in all four extremities” with “no evidence of muscle wasting,” id. at 326, and was

“able to transfer without any difficulty and ambulate about the office without any difficulty.” Id.

at 396. Similarly, Chari concluded that Plaintiff exhibited no muscle atrophy, had good strength

in all his extremities, and could “get on and off the examination table without assistance.” Id. at

409. Consistent with Drs. Miknowski, Aleskow, and Chari, the DDS physicians also concluded

that Plaintiff was capable of occasionally lifting twenty pounds and frequently lifting ten pounds

and that he could stand, walk, or sit for six hours in an eight-hour workday. See id. at 334, 413.

In light of all this evidence that the ALJ identified, Plaintiff cannot question whether there was

substantial evidence to support the determination that he could perform light work.

To be sure, the ALJ’s RFC determination does appear to contradict the conclusions of

Plaintiff’s treating physician, Dr. Colao, who stated repeatedly that Plaintiff was significantly

physically limited and therefore disabled. See id. at 170, 393, 421, 425, 624; see also id. at 423

(non-treating physician Dr. Mathews’s conclusion that Plaintiff was “totally and permanently

disabled”). The ALJ acknowledged Colao’s opinion, but did not find it controlling. Id. at 26,

29. In this circuit, “‘[b]ecause a claimant’s treating physicians have great familiarity with [his]

condition, their reports must be accorded substantial weight.’” Butler, 353 F.3d at 1003 (quoting

Williams v. Shalala, 997 F.2d 1494, 1498 (D.C. Cir. 1993)); see also 20 C.F.R. § 404.1527(d)(2)

(“If we find that a treating source’s opinion on the issue(s) of the nature and severity of your

impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in your case record, we will

14
give it controlling weight.”). Where substantial evidence contradicts the treating physician’s

opinions, an ALJ may reject them, but must explain why he does so. Jones v. Astrue, 647 F.3d

350, 355 (D.C. Cir. 2011); Butler, 353 F.3d at 1003. In keeping with this treating-physician rule,

the Appeals Council’s instructions to the ALJ on remand required him to “evaluate the treating

and examining source opinions . . . and explain the weight given to such opinion[s].” AR at 35.

The ALJ did as required.

To the extent that the ALJ’s RFC finding that Plaintiff could perform light work was

inconsistent with Colao’s opinion, the ALJ gave adequate bases for why he disregarded that

opinion. In Williams, 997 F.2d at 1498-99, the court found it acceptable for an ALJ to decline to

defer to a treating physician’s opinion because the ALJ identified contradictory evidence in the

record for doing so: “In view of the contradictory evidence in the record, we think that the ALJ

did not err in failing to defer to [the treating physician’s] diagnosis under the treating physician

rule.” Id. Specifically, the ALJ there relied on contradictory evidence from another physician as

well as the treating physician’s own earlier inconsistent opinions. Id. Here, similarly, the ALJ

identified substantial contradictory evidence in the record for disregarding the treating

physician’s opinion. See AR at 29. The ALJ pointed out that Colao’s opinion was not consistent

with the opinions of Aleskow or Miknowski. See id. The ALJ, moreover, added that “other

medical evidence in the file” – for example, Plaintiff’s x-rays and several other doctors’ opinions

– are also inconsistent with Colao’s opinion. See id. The ALJ thus fulfilled his obligation to

evaluate the treating physician’s opinion and adequately explained why he disregarded it.

It is worth noting, finally, that it is not absolutely clear that Colao’s opinion on the

severity of Plaintiff’s condition necessarily contradicts the ALJ’s findings. His opinion does not

preclude the possibility that Plaintiff, though medically disabled, can still perform light work,

15
which would mean he is not disabled under the Act. As such, the conclusion reached by Colao

that Plaintiff is medically disabled does not necessarily contradict the ALJ’s conclusion that he is

not legally disabled under the Act, as those two uses of “disabled” are not always synonymous.

This distinction is, at any rate, not significant here because the Court finds that there was

substantial evidence in the record that outweighed Colao’s determination, even if it was that

Plaintiff was disabled under the Act.

3. The Step-Four Determination

The Commissioner wisely concedes that the ALJ erred when he made the step-four

determination that Plaintiff was capable of performing his past work as a warehouse worker.

Mot. at 24. At the August 6, 2009, hearing, vocational expert Tanja Hubacker testified that

Plaintiff’s past relevant work required medium levels of exertion. AR at 657. Given the ALJ’s

determination that Plaintiff’s RFC was limited to either light exertion or sedentary work, a

finding that Plaintiff could return to a job that required medium exertion was likely against the

substantial weight of the evidence. Because the ALJ made an alternative step-five

determination, his error here is harmless.

4. The Step-Five Determination

The ALJ, in addition to finding in step four that Plaintiff could resume warehouse work,

also ruled in the alternative. He held in step five that even if Plaintiff could not do warehouse

work, he was nonetheless capable of “making an adjustment to other work” based on his RFC,

age, education, and work experience, as required by § 416.920(a)(4)(v). AR at 29-31. The

Commissioner bears the burden of proof at this step and easily satisfies that burden with the

evidence supplied by the vocational expert Hubacker. She testified that a significant number of

jobs exist in the national economy for a person of Plaintiff’s profile – namely, a high-school-

16
educated unskilled worker of Plaintiff’s age and physical limitations. See id.; AR at 678-80.

The step-five determination is thus supported by substantial evidence.

B. New and Material Evidence

In arguing that the Commissioner erred on the disability determination, Plaintiff also

presents additional evidence that he presumably believes the ALJ did not review. See Suppl.

Compl. 1-16; Plaintiff’s “Civil Statement,” ECF No. 16 at 2-11 (Stmt.). Section 405(g) of the

Social Security Act, however, does not authorize a reviewing district court generally to consider

additional evidence. See Mathews v. Weber, 423 U.S. 261, 270 (1976) (“under . . . 42 U.S.C. §

405(g), neither party may put any additional evidence before the district court”). Sentence six of

§ 405(g) does, however, permit district courts to “order additional evidence to be taken before

the Commissioner . . . but only upon a showing that there is [1] new evidence [2] which is

material [3] and that there is good cause for the failure to incorporate such evidence into the

record in a prior proceeding.” 42 U.S.C. § 405(g). Defendant correctly points out that Plaintiff’s

additional evidence can at best be treated as an implicit argument for remand on the basis of new

and material evidence. Mot. at 9. But none of the three criteria for remand is satisfied here.

First, almost all of Plaintiff’s extra-record evidence – mostly an odd hodgepodge of old

records – is not new. Plaintiff submits the following documents that are already present in the

administrative record: (1) a report from Dr. Mathews dated August 14, 2003, Supp. Compl. at 8;

Stmt. at 6; AR at 424; (2) a second report from Dr. Mathews dated August 28, 2003, Supp.

Compl. at 6; Stmt. at 5; AR at 423; and (3) a third report from Dr. Mathews dated September 11,

2003, Supp. Compl. at 9; Stmt. at 4; AR at 422. As these documents are present in the record

and indeed cited by the ALJ in his opinion, AR at 24, they are by no means new.

17
 Four other documents were created prior to Plaintiff’s August 6, 2009, ALJ hearing and

are thus also not new: (1) a July 5, 2002, list of the doctors who examined Plaintiff in the 1990s,

Supp. Compl. at 13-16; (2) a February 13, 2003, letter from Plaintiff to the Appeals Council

seeking to have an earlier SSI application reviewed, id. at 2-5; (3) an October 20, 2005,

certificate of compliance, id. at 12; and (4) a January 12, 1998, letter from a Dr. Paul Katz

summarizing the outcome of Plaintiff’s 1997 and 1998 visits to him. Stmt. at 2-3. Section

405(g)’s newness requirement is satisfied only when the additional evidence that the claimant

seeks to have considered was “not in existence or available to [him] at the time of the

administrative proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The four

documents stated above were created long before the administrative hearing and were thus

readily available to him. Perhaps because his then-attorney rightfully saw no value in adding

these documents to the administrative record, they were left out. Plaintiff, at any rate, proffers

no reason for his failure to present them to the ALJ, and he cannot now claim they represent new

evidence.

Second, the remaining arguably new documents are not material within the meaning of §

405(g), which requires that the claimant show that the additional evidence he seeks to have

considered “might have changed the outcome of the prior proceeding.” Melkonyan v. Sullivan,

501 U.S. 89, 98 (1991). The documents are as follows: (1) an undated letter from Dr. Colao,

Supp. Compl. at 7; (2) a handwritten note dated August 10, 2011, which seems to come from the

office of Dr. Colao, Stmt. at 9; (3) an indecipherable and unsigned handwritten note dated

August 26, 2010, which seems to come from the office of Dr. Mathews, Supp. Compl. at 10;

Stmt. at 7; (4) another indecipherable and unsigned handwritten note dated September 16, 2010,

which seems to come from the same office, Supp. Compl. at 11; Stmt. at 8; and (5) a psychiatric

18
evaluation of Plaintiff from the Hillcrest Children and Family Center dated August 24, 2010.

Stmt. at 10-11. Needless to say, these records could hardly have changed the outcome in this

case.

Both the undated letter from Colao and his short handwritten note merely restate his

diagnosis, which is already more than adequately represented in several documents in the record.

If the ALJ was not moved to change his findings based on formal statements of Colao’s

diagnosis, then a handwritten note and an undated letter stating the same diagnosis would

certainly have not convinced him otherwise. Also, the handwritten notes from Mathews’s office

are, as stated, indecipherable to the Court. To the extent, however, that Defendant is a better

decoder than the Court and is able to understand the handwritten notes, they are not material.

Defendant states that the notes “reference Plaintiff’s March 1991 accident and MRI results . . .

that Dr. Mathews had reviewed and discussed . . . in 2003” and “state[] that Plaintiff’s

complaints had not changed and that, under the opinion of Dr. Colao, Plaintiff is disabled.” Mot.

at 13. These statements would not have changed the outcome of this case because they reflect

facts that are already present in the record. See AR at 422-24.

Additionally, the August 24, 2010, psychiatric evaluation of Plaintiff would not have

changed the outcome because it did not conclude that Plaintiff suffered from mental impairments

that are disabling under the Social Security Act. Nor did it reveal that Plaintiff, as required by

Listing 12.04, is markedly restricted in “activities of daily living,” “social functioning,”

“maintaining concentration, persistence, or pace,” or that he has experienced “repeated episodes

of decompenstion, each of extended duration.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. As

such, there is nothing in the psychiatric evaluation that, if considered by the ALJ, would likely

have caused him to alter his conclusion that Plaintiff’s mental impairments did not amount to a

19
disability under the Social Security Act. The Court, therefore, will not remand the case on the

basis of this evidence.

IV. Conclusion

Because the ALJ could properly determine, based on substantial evidence found in the

record, that Plaintiff was not disabled under the Social Security Act, and because Plaintiff’s

extra-record evidence is neither new nor material, Defendant’s Motion for Judgment of

Affirmance will be granted. A separate Order consistent with this Memorandum Opinion will

issue today.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: March 19, 2012

20