Dowell v. Colvin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
STEWART DOWELL, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-cv-1542 (KBJ)
)
CAROLYN W. COLVIN, Acting )
Commissioner of Social Security, )
)
Defendant. )
)

MEMORANDUM OPINION ADOPTING
REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Stewart Dowell applied to the Commissioner of Social Security

(“Commissioner” or “Defendant”) for disability benefits and supplemental social

security income benefits in 2011, claiming that he was disabled due to knee injuries, a

neck condition, a cardiac condition, and sleep apnea. (AR, ECF No. 9-2, at 11, 15–

16.) 1 In February of 2014, an Administrative Law Judge (“ALJ”) held a hearing on

Dowell’s application, and ultimately determined that Dowell is not disabled under the

Social Security Act. Dowell then filed the instant lawsuit, requesting that this Court

reverse the ALJ’s denial decision and grant him benefits. (See generally Compl., ECF

No. 1.)

On February 3, 2016, this Court referred this matter to a Magistrate Judge for

full case management. (See Min. Order of Feb. 3, 2016.) On April 14, 2016, Dowell

filed a motion asking the Court to either reverse the Commissioner’s decision or remand

1
Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.
this matter back to the agency for a new hearing, arguing that the ALJ’s decision is not

supported by substantial evidence and that decision is erroneous as a matter of law.

(See Pl.’s Mot. for J. of Reversal, ECF No. 12, at 1.) Thereafter, on May 24, 2016,

Defendant filed a motion for affirmance of the ALJ’s decision, arguing that Dowell

failed to meet his burden of establishing that he was disabled, and “that substantial

evidence supports the ALJ’s decision that the very limited and sparse evidence in the

record did not support Dowell’s allegations of disabling impairments as of December

31, 2007,” which is the date that he was last insured for the purposes of disability

insurance benefits. (Def.’s Mem. in Supp. of Her Mot. for J. of Affirmance & in Opp’n

to Pl.’s Mot. for J. of Reversal, ECF No. 13, at 3-4).

Before this Court at present is the Report and Recommendation that the assigned

Magistrate Judge, Deborah A. Robinson, has filed regarding Dowell’s motion for

reversal and Defendant’s motion for affirmance. (See R. & R., ECF No. 17.) 2 The

Report and Recommendation reflects Magistrate Judge Robinson’s opinion that

Dowell’s motion for reversal or remand should be granted, and that Defendant’s motion

for affirmance should be denied. (See id. at 1–2, 42.) Specifically, Magistrate Judge

Robinson finds that the ALJ’s findings regarding Dowell’s residual functional capacity

(“RFC”) with respect to Dowell’s knee and leg conditions was not supported by

substantial evidence, because the ALJ failed to consider and discuss the functional

limitations that these conditions placed Dowell’s ability to perform the physical

demands of the work activities that are listed in the relevant regulations. (See id. at 6–

8.) Magistrate Judge Robinson further finds that the ALJ committed legal error with

2
The Report and Recommendation, which is 11 pages long, is attached hereto as Appendix A.

2
respect to his determination of Dowell’s RFC “by failing to provide a logical

explanation for his RFC findings as required by Social Security Ruling 96-8p.” (Id. at

10.)

In addition to articulating these conclusions, Magistrate Judge Robinson’s Report

and Recommendation also advises the parties that either party may file written

objections to the Report and Recommendation, which must include the portions of the

findings and recommendations to which each objection is made and the basis for each

such objection. (Id. at 11.) The Report and Recommendation further advises the

parties that failure to file timely objections may result in waiver of further review of the

matters addressed in the Report and Recommendation. (Id.) Under this Court’s local

rules, any party who objects to a Report and Recommendation must file a written

objection with the Clerk of the Court within 14 days of the party’s receipt of the Report

and Recommendation. LCvR 72.3(b). The due date for objections has passed, and none

have been filed.

This Court has reviewed Magistrate Judge Robinson’s report and agrees with its

careful and thorough analysis and conclusions. Thus, the Court will ADOPT the

Report and Recommendation in its entirety. Accordingly, Plaintiff’s Motion for

Reversal will be GRANTED; Defendant’s Motion for Affirmance will be DENIED;

and this matter will be REMANDED to the Commissioner for rehearing.

A separate Order accompanies this Memorandum Opinion.

DATE: January 11, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

3
 Appendix A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STEWART DOWELL,

Plaintiff,

v. Civil Action No. 15-1542
KBJ/DAR

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Steward Dowell (“Plaintiff”) commenced this action against the Acting

Commissioner of Social Security (“Defendant”), pursuant to 42 U.S.C. § 405(g), seeking

reversal of an Administrative Law Judge’s decision denying Plaintiff’s claim for Disability

Insurance Benefits and Supplemental Security Income. Compl. (ECF No. 1) ¶ 4. This matter

was referred to the undersigned for full case management. 02/03/2016 Minute Order. Pending

for consideration by the undersigned are Plaintiff’s Motion for Judgment of Reversal (“Plaintiff’s

Motion”) (ECF No. 12) and Defendant’s Motion for Judgment of Affirmance (“Defendant’s

Motion”) (ECF No. 13). Upon consideration of the motions, the memoranda in support thereof

and opposition thereto, the administrative record, and the entire record herein, the undersigned

will recommend that the Court grant Plaintiff’s Motion and deny Defendant’s Motion.
 Appendix A

FACTUAL BACKGROUND

Plaintiff applied for Supplemental Security Income Benefits on September 29, 2011,

pursuant to Title II of the Social Security Act. Pl.’s Mem. (ECF No. 12-1) at 1. Plaintiff alleged

disability, commencing on December 31, 2007, based on knee injuries, a neck condition, a

cardiac condition, and sleep apnea. Id. Defendant denied Plaintiff’s claims initially and upon

reconsideration. Id. at 2.

On October 24, 2012, Plaintiff requested a hearing before an administrative law judge.

Administrative Record (“AR”) (ECF No. 9-4) at 76. The hearing took place on February 11,

2014. Pl.’s Mem. (ECF No. 12-1) at 2. On April 25, 2014, Administrative Law Judge F. H.

Ayer (“ALJ”) denied Plaintiff’s claim, finding that Plaintiff was not “disabled” within the

meaning of the Social Security Act. AR (ECF No. 9-2) at 17. In the decision, the ALJ used the

five-step process to determine whether Plaintiff was disabled. Id. at 12-17. First, the ALJ found

that Plaintiff did not engage in substantial gainful activity since the application date. Id. at 12.

Second, the ALJ found that Plaintiff had the following severe impairments: degenerative disc

disease of the cervical spine, status post cervical discectomy, and status post tibial and fibular

fractures with open reduction and internal fixation. Id. Third, the ALJ found that Plaintiff’s

impairments did not meet or medically equal the severity of one of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1. Id. at 12-13. Further, the ALJ determined that Plaintiff

had the residual functional capacity to perform “light” work as defined in 20 C.F.R. 404.1567(b)

with the following limitations: “only occasionally lifting and carrying of a maximum of 20

pounds; frequently lifting and carrying a maximum of 10 pounds; and only occasional bending

and overhead reaching with the non-dominant left upper extremity.” Id. at 13. Fourth, the ALJ

found that Plaintiff has no past relevant work. Id. at 15. Fifth, relying on a vocational expert’s
 Appendix A

testimony, with the consideration of Plaintiff’s age, education, work experience, and residual

functional capacity, the ALJ ultimately determined that “jobs existed in significant numbers in

the national economy that the claimant could have performed[,]” and thus found that Plaintiff

was not disabled. Id. at 17.

Following the unfavorable decision, Plaintiff sought review of the ALJ’s findings. AR

(ECF No. 9-2) at 6. The Appeals Council denied Plaintiff’s request on June 25, 2015. Id. at 1.

To reverse the ALJ’s decision, Plaintiff filed an action in this Court on September 21, 2015.

Compl. (ECF No. 1) at 1. 1

STATUTORY FRAMEWORK

The Social Security Act of 1935 established a framework to provide “disability insurance

benefits” to eligible individuals and “supplemental security income” to individuals who have

“attained age 65[,] . . . are blind[,] or disabled.” 42 U.S.C. §§ 423, 1381, 1381a. The Act

defines “disability” for non-blind individuals as “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.905. A “disabled”

individual is eligible for supplemental security income if he or she meets additional statutory

requirements concerning income and resources. 42 U.S.C. § 1382(a). The Social Security

Administration (“Administration”) has promulgated regulations, pursuant to the Act, outlining a

1
Although the Complaint was filed on September 21, 2015, which was 88 days after the notice of denial dated June
25, 2015, it was deemed that Plaintiff commenced this action within the 60-day statutory deadline, with additional
five days for mailing, because he filed a motion for leave to proceed in forma pauperis on August 27, 2015, which
was 63 days after the notice of denial. See Def.’s Mot. Withdraw Mot. Dismiss (ECF No. 6) at 1; see also
Nkengfack v. American Ass’n of Retired Persons, 818 F. Supp. 2d 178, 182 (D.D.C. 2011) (“[T]he statutory filing
period is tolled while such an application to proceed IFP is pending before the Court.”).
 Appendix A

five-step process for the determination of whether adult claimants are disabled. See 20 C.F.R. §§

404.1520, 416.920.

First, the agency evaluates whether the claimant is “doing substantial gainful activity.” If

so, the agency concludes that the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), (b);

416.920(a)(4)(i), (b).

Second, if the claimant is not engaging in substantial gainful activity, the agency

determines whether the claimant has a “severe medically determinable physical or medical

impairment that meets the duration requirement . . . or a combination of impairments that is

severe and meets the duration requirement . . . .” 20 C.F.R. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii).

Third, if the claimant’s impairments are deemed “severe,” the next question becomes

whether the impairment “meets or equals one of the listings” in 20 C.F.R. § 404.1525(a). The

“listings” refer to a “listing of impairments” which “describes for each of the major body

systems impairments that [the Administration] consider[s] to be severe enough to prevent an

individual from doing any gainful activity, regardless of his or her age, education, or work

experience.” Id.

Fourth, if the claimant’s impairments do not satisfy one of the listings, the agency

assesses the claimant’s “residual functional capacity” to determine whether the claimant is still

capable of performing “past relevant work.” 20 C.F.R. § 404.1520. If so, the claimant is not

disabled. Id. Residual functional capacity is “the most [an individual] can still do despite [his or

her] limitations.” 20 C.F.R. § 404.1545.

Fifth, and finally, if the claimant is unable to perform his or her “past relevant work,” the

agency evaluates the claimant’s “residual functional capacity and . . . age, education, and work
 Appendix A

experience to see if [he or she] can make adjustment to other work.” 20 C.F.R. §§

404.1520(a)(4)(v), (g); 416.920(a)(4)(v), (g) (emphasis added). If the claimant cannot make

such an adjustment, the Administration finds that the individual is “disabled.” 20 C.F.R. §§

404.1520(g)(1), 416.920(g)(1).

APPLICABLE STANDARD OF REVIEW

Claimants may seek judicial review in a district court of “any final decision of the

Commissioner of Social Security made after a hearing to which [they were] a party.” 42 U.S.C.

§ 405(g). The Commissioner’s ultimate determination will not be disturbed “if it is based on

substantial evidence in the record and correctly applies the relevant legal standards.” Butler v.

Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (citations omitted). In other words, a “district

court’s review of the [Administration’s] findings of fact is limited to whether those findings are

supported by substantial evidence.” Broyles v. Astrue, 910 F. Supp. 2d 55, 60 (D.D.C. 2012)

(citations omitted). Substantial evidence is such relevant evidence as “a reasonable mind might

accept as adequate to support a conclusion.” Butler, 353 F.3d at 999 (internal quotation marks

omitted) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The test requires “more than

a scintilla, but can be satisfied by something less than a preponderance of evidence.” Id.

(citation omitted) (internal quotation marks omitted).

The District of Columbia Circuit has observed that “[s]ubstantial-evidence review is

highly deferential to the agency fact-finder,” Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181,

1185 (D.C. Cir. 2008), and that “a reviewing judge must uphold the ALJ’s legal ‘determination if

it . . . is not tainted by an error of law.’” Jeffries v. Astrue, 723 F. Supp. 2d 185, 189 (D.D.C.

2010) (quoting Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987)); see also Nicholson v.

Soc. Sec. Admin., 895 F. Supp. 2d 101, 103 (D.D.C. 2012) (citation omitted) (internal quotation
 Appendix A

marks and alteration omitted) (noting that the inquiry upon judicial review “examines whether

the ALJ has analyzed all evidence and has sufficiently explained the weight he had given to

obviously probative exhibits”); Guthrie v. Astrue, 604 F. Supp. 2d 104, 112 (D.D.C. 2009)

(citation omitted) (noting that the court is “not to review the case ‘de novo’ or reweigh the

evidence”). The claimant bears the “burden of demonstrating that the Commissioner’s decision

[was] not based on substantial evidence or that incorrect legal standards were applied.” Muldrow

v. Astrue, No. 11-1385, 2012 WL 2877697, at *6 (D.D.C. July 11, 2012) (citation omitted); see

Charles v. Astrue, 854 F. Supp. 2d 22, 27-28 (D.D.C. 2012). A district court has discretion “to

enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,

or reversing the decision of the Commissioner, with or without remanding the case for a

rehearing.” Faison v. Colvin, Civil No. 14-1551, 2016 WL 2962189, at *2 (D.D.C. May 20,

2016) (citing Ademakinwa v. Astrue, 696 F. Supp. 2d 107, 110 (D.D.C. 2010)) (internal

quotation marks omitted).

DISCUSSION

1. The ALJ’s decision related to Plaintiff’s degenerative bilateral knee disease and
status post tibial and fibular factures was not supported by substantial evidence,
because he failed to discuss the functional limitations of the conditions on work-
related activities.

Plaintiff first argues that the ALJ failed to include any limitation related to Plaintiff’s

“degenerative joint disease of the knees” and “status post tibial and fibular fractures” in his

residual functional capacity determination. Pl.’s Mem. (ECF No. 12-1) at 7. Defendant

responds that the ALJ considered Plaintiff’s knee conditions and status post tibial and fibular

fractures, and included the 10 and 20 pound limitations on lifting and carrying as a result of those

conditions. Def.’s Opp’n (ECF No. 14) at 13.
 Appendix A

Residual functional capacity (“RFC”) is an individual’s ability to perform sustained

work-related physical and mental activities in a work setting on a regular and continuing basis.

20 C.F.R. § 416.945(a)(1). In assessing the residual functional capacity, an ALJ must first

identify the individual’s functional limitations or restrictions and assess his or her work-related

abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of

20 C.F.R. 404.1545 and 416.945. When an ALJ assesses the individual’s physical abilities, he

must determine whether the individual has a limited ability to perform physical demands of work

activity such as “sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical

functions (including manipulative or postural functions, such as reaching, handling, stooping or

crouching).” § 404.1545(b). Only after that may RFC be expressed in terms of the exertional

levels of work, sedentary, light, medium, heavy, and very heavy. SSR 96-8p, 61 Fed. Reg. 128,

at *1 (July 2, 1996).

An ALJ must consider all relevant medical and non-medical evidence, including a

claimant’s allegations of disabling physical impairments and evidence related to the claimant’s

mental, physical, and other capacity provided by medical sources. § 416.945(a)(3). The ALJ

must also explain how any material inconsistencies or ambiguities in the evidence were

considered and resolved. SSR 96-8p, 61 Fed. Reg. 128, at *7 (July 2, 1996). The ultimate

determination of RFC is specifically reserved to an ALJ, but the ALJ must include a narrative

discussion describing how the evidence supports each conclusion, citing medical facts and

nonmedical evidence. Id.

The undersigned finds that here, the ALJ’s residual functional capacity determination

with respect to Plaintiff’s knee conditions and status post tibial and fibular surgery was not

supported by substantial evidence. More specifically, the ALJ failed to first discuss whether
 Appendix A

Plaintiff’s knee disease and postoperative conditions place any limitations on his ability to

perform physical demands of work activity such as sitting, standing, walking, lifting, carrying, or

crouching, before determining that Plaintiff had the ability to perform “light” work. See AR

(ECF No. 9-2) at 15. Instead, the ALJ conclusively stated that “claimant’s knee impairment

[was] fully accommodated by the residual functional capacity above as of the claimant’s alleged

onset date,” without specifying exactly what limitation was imposed due to Plaintiff’s knee

conditions. Id. A failure to make such a finding could result in the ALJ “overlooking some of

an individual’s limitations or restrictions,” and “an incorrect use of an exertional category to find

that the individual is able to do past relevant work as it is generally performed and an erroneous

finding that the individual is not disabled.” SSR 96-8p, 61 Fed. Reg. 128, at *4 (July 2, 1996).

That is exactly the case here.

The ALJ’s ultimate decision that Plaintiff was “not disabled” was based on the ALJ’s

finding, in the previous step, that Plaintiff was capable of performing “light” work as well as

other factors. AR (ECF No. 9-2) at 16. However, although the ALJ acknowledged some

limiting effects of Plaintiff’s knee conditions, AR at 15, he did not specifically impose any

limitations on activities that require use of knees such as walking, lifting, carrying, or crouching.

See AR (ECF No. 9-2) at 13. Accordingly, because the ALJ failed to make the necessary finding

on Plaintiff’s ability to perform physical demands of work activity listed in 20 C.F.R. §

404.1545(b) before deciding that Plaintiff was capable of performing “light” work, his ultimate

conclusion was not supported by substantial evidence.

2. The ALJ’s RFC findings were not supported by substantial evidence because he failed
to provide a sufficient explanation for each of his findings.

Plaintiff argues that the ALJ, in his RFC finding, failed to explain the basis for his finding

that Plaintiff was limited to “performing light work, was limited to lifting and carrying 20
 Appendix A

pounds occasionally and 10 pounds frequently, had no limitations on his abilities to stand and

walk, and was limited to only occasionally bending, and overhead reaching with his non-

dominant upper extremity.” Pl.’s Mem. (ECF No. 12-1) at 8. The undersigned agrees.

The RFC assessment must include “a narrative discussion describing how the evidence

supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical

evidence (e.g., daily activities, observations).” SSR 96-8p, 61 Fed. Reg. 128, at *7 (July 2,

1996). This requirement is not satisfied by merely listing the claimant’s medical history and

making a conclusory statement. Williams v. Colvin, 134 F. Supp. 3d 358, 364 (D.D.C. 2015).

The ALJ must build an “accurate and logical bridge” from the evidence to his conclusion, so that

the reviewing court may assess the validity of the agency’s ultimate findings and afford the

claimant a meaningful judicial review. Id.

Here, the ALJ’s RFC finding consists of four parts: Plaintiff was limited to (1)

performing “light” work as defined in 20 C.F.R. 404.1527(b), (2) occasionally lifting and

carrying of a maximum of 20 pounds, (3) frequently lifting and carrying a maximum of 10

pounds, and (4) occasionally bending and overhead reaching with the non-dominant left upper

extremity. AR (ECF No. 9-2) at 13. Among these findings, only the basis of the limitation on

lifting and carrying up to 20 pounds is provided by the ALJ. See id. at 15 (“For these reasons,

the undersigned limited the claimant to a maximum of only occasional lifting and carrying of 20

pounds.”).

No explanation is provided by the ALJ with respect to why he imposed limitations on

Plaintiff’s ability to perform light work, frequently lift and carry up to 10 pounds, and

occasionally bend and reach overhead with his left arm. Although the ALJ stated that Plaintiff’s

bilateral knee impairment was accommodated by the residual functional capacity, he failed to
 Appendix A

specify of which his RFC findings was supported by that impairment. See id. (“The undersigned

assigned great weight to this objective evidence and considered it in assigning the residual

functional capacity above. Ultimately, the undersigned finds that the claimant’s bilateral knee

impairment [was] fully accommodated by the residual functional capacity above as of the

claimant’s alleged onset date.”). There is no “narrative discussion describing how the evidence

supports each conclusion.” SSR 96-8p, 61 Fed. Reg. 128, at *7 (July 2, 1996) (emphasis added).

What the ALJ did was merely “list[ing] [Plaintiff’s] medical history and then conclusively

stat[ing]” Plaintiff’s residual functional capacity without providing any “accurate and logical

bridge” from the evidence to his conclusion. Williams, 134 F. Supp. 3d at 364.

Defendant, in her opposition, fails to address this issue. In its opposition, Defendant

merely argues that the ALJ “considered” both medical and non-medical evidence in reaching the

conclusion, without explaining the nexus, or the existence thereof, between the listed pieces of

evidence and each conclusion. See Def.’s Opp’n (ECF No. 14) at 14.

Therefore, the ALJ committed reversible error by failing to provide a logical explanation

for his RFC findings as required by Social Security Ruling 96-8p. Without them, the

undersigned can neither assess the validity of the ALJ’s ultimate findings nor afford Plaintiff a

meaningful judicial review. On remand, the ALJ must provide his own explanation of how the

evidence supports each of his RFC findings.

CONCLUSION

For the foregoing reasons, the undersigned concludes that the ALJ’s findings were not

supported by substantial evidence.

It is therefore, this 14th day of December, 2016,
 Appendix A

RECOMMENDED that Plaintiff’s Motion for Judgment of Reversal (ECF No. 12) be

GRANTED; and it is

FURTHER RECOMMENDED that Defendant’s Motion for Judgment of Affirmance

(ECF No. 13) be DENIED.

___________/s/___________
DEBORAH A. ROBINSON
United States Magistrate Judge

Within fourteen days, either party may file written objections to this report and
recommendation. The objections shall specifically identify the portions of the findings and
recommendations to which objection is made and the basis of each objection. In the
absence of timely objections, further review of issues addressed may be deemed waived.