Mitchell v. Astrue ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAMON DARTANYON MITCHELL, )
)
Plaintiff, )
)
v. ) Civil Case No. 12-1573 (RJL)
)
CARoLYN w. CoLVIN,‘ )
) F1LEo
D f d t.
e en an ) FEB 08 2016
wpa ccen<, u.s. manner & Bankruptcy
':Ollft$ fOl' fh€ DlStl'lCt Of Commb|a
(February § , 20l6) [Dkts. ## ll, 12]
Plaintiff, Damon Dartanyon Mitchell ("plaintiff’ or "Mitchell"), seeks reversal of
the denial of his application for Supplemental Security Income benefits by the
Commissioner of the Social Security Administration. See Compl. [Dkt. # l]. Pending
before the Court are plaintiffs Motion for judgment of Reversal ("Pl.’s Mot.") [Dkt.
# l l] and defendant’s Motion for Judgment of Affirrnance ("Def.’s Mot.") [Dkt. # 12].
F or the reasons set forth below, the Court GRANTS in part and DENIES in part
plaintiffs motion and DENIES defendant’s motion.
BACKGROUND
On December 22, 2008, then-46-year-old plaintiff Damon Mitchell filed an
application with the Social Security Administration ("SSA") seeking Supplemental
Security Income ("SSI"). Administrative Record ("AR") at 218-24 [Dkt. # 8]. Mitchell
l Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the F ederal Rules of Civil Procedure, Carolyn W. Colvin has been
substituted for former Commissioner Michael J. Astrue as the defendant in this action.
l
alleged disability beginning May l, 1991 as a result of blindness in his right eye and
deafness in his right ear, AR at 237, and, as of February 20()9, increased tearing in his left
eye, AR at 262. The Commissioner of the SSA ("Commissioner") initially denied his
application on May 5, 2009. AR at l 15. Mitchell then requested a hearing by an
administrative law judge ("ALJ"). AR at 124. ALJ Thomas Mercer Ray held a hearing
on May 23, 201 l, with Mitchell and his attorney present. AR at 45-79. On June 27,
201 l, ALJ Ray issued a decision concluding Mitchell was not disabled and therefore
ineligible for SSl benefits AR at 3()-4(). The ALJ found:
[Mitchell] has the residual functioning capacity to perform a full range
of work at all exertional levels, but with the following nonexertional
limitations. The claimant was unable to performed [sic] duties
requiring binocular vision, depth perception, and a full field of
vision. . . . The claimant should avoid climbing ropes, ladders, and
scaffolds. The claimant must avoid exposure to hazards such as
machinery and heights.
AR at 33. Mitchell appealed the ALJ ’s decision to the Social Security Appeals Council
("Appeals Council"). AR at 21. On July 12, 2012, the Appeals Council denied
l\/Iitchell’s request for review and upheld the ALJ’s decision. AR at l-5.
Mitchell filed this action on September 21, 2012. See Compl. [Dkt. # l]. Mitchell
moved this Court to either reverse the Commissioner’s decision. or remand the matter for
a new hearing. Pl.’s Mot. [Dkt. # l l]. The Commissioner moved to affirm the
Commissioner``s decision. See Def.’s Mot. [Dkt. # 12].
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity
assessment and do not result in the claimant being disable[ed.]" AR at 36.
Mitchell argues that the ALJ failed to address contradictory evidence about his
increased tearing in this analysis, but the record proves otherwise. First, it bears note that
Mitchell’s repeated assertion in his briefing that the increased tearing is the result of a
ruptured tear duct is specious. Mitchell points to Dr. Stoleru’s report and Mitchell’s
testimony (that his left eye can become tired and things get blurry "because of my left
tear duct," AR at 62) as evidence of a ruptured tear duct, but Mitchell made no reference
to a ruptured tear duct, and Dr. Stoleru’s only diagnosis regarding Mitchell’s left eye is
epiphoria, or excessive tearing-not a ruptured tear duct-~for which Dr. Stoleru
recommended lacrimal duct probing, which flushes out the tear duct. AR at 367.
Moreover, Dr. Stoleru found that Mitchell has certain work limitations based on
blindness in his right eye, but did not list any limitations based on the increased tearing in
the left eye that he observed and diagnosed. AR at 367.
Pursuant the regulations, the ALJ provided specific reasons for his finding that
Mitchell’s statements regarding the intensity, persistence, and limiting effects of his
symptoms were not credible to the extent they were inconsistent with the RFC
assessment. During the hearing, Mitchell testified that although he reads and uses a
computer during the day, he has to take breaks "all the time" because his "eye will get
very tired, and it’ll get blurry." AR at 61-62. The ALJ’s opinion shows these statements
are inconsistent with (l) Mitchell’s own statements regarding the level and degree of his
ll
daily activities since the date of alleged onset-including washing his clothes, dressing
himself, cooking, bathing himself, and going grocery shopping, AR at 36; and (2) the
opinion of Dr. Stoleru who stated that Mitchell’s left eye had "excellent vision with mild
constriction and mild tearing," was "normal in all other tests," and did not prevent
Mitchell from performing normal work-related activities other than those requiring
bilateral vision, depth perception, and full field vision, AR at 34-35 (emphasis added).3
Mitchell’s final argument~that the ALJ lacked substantial evidence to conclude
that he was capable of performing past relevant work due to the short-term nature of his
work experiences-is similarly unpersuasive. See Pl.’s Mem. l2. Past relevant work, in
pertinent part, must have "lasted long enough for [a claimant] to learn to do it[.]"
§ 4l6.965(a). In this case, Mitchell worked at Goodwill eight hours per day, five days
per week, for three years, from 1996 to l999. AR at 244. While working at Goodwill he
"supervised workers who processed toys [and] inventoried all incoming and outgoing
toys to be distributed." AR at 245. There is certainly more than the requisite scintilla of
evidence to support the conclusion that three years is long enough to leam how to do this
kind of work. See Ajj‘”um, 566 F.3d at 1163; Drejka v. Comm ’r ofSoc. Sec., 61 F. App’x
778, 783 (3d Cir. 2003) (affirming ALJ’s finding that an individual could return to her
3 Mitchell also argues that the vocational expert’s testimony undermines the ALJ’s RFC
conclusion. Pl.’s Mem ll. The vocational expert testified that there would be no work for a
hypothetical individual who is deaf in one ear, blind in one eye, and has a ruptured tear duct that
causes constant blurriness in the other eye at random times throughout the day, requiring
prolonged breaks three to six times per day. AR at 73-74. However, the evidence does not show
that Mitchell in fact had a ruptured tear duct, suffered from constant blurriness in his left eye,
and required such frequent and prolonged breaks.
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past relevant work because the claimant had performed that work, though temporary,
long enough (three months) to know how to do it). Thus, there is substantial evidence to
support the ALJ’s conclusion that Mitchell could perfonn past relevant work.
CONCLUSION
Accordingly, the Court GRANTS IN PART and DENIES in PART plaintiffs
Motion for judgment of Reversa1 [Dkt. # ll] and DENIES defendant’s Motion for
Judgment of Affirrnance [Dkt. # 12]. An Order consistent with this decision
accompanies this Memorandum Opinion. .
RICHARD J.
United States Distr1c Judge
STANDARD OF REVIEW
In reviewing the decision of an ALJ, a district court must determine whether the
ALJ’s finding are supported by "substantial evidence." 42 U.S.C. § 405(g) (2006);
Brown v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986); Jackson v. Barrzhart, 271 F. Supp.
2d 30, 33 (D.D.C. 2002). Substantia1 evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Rz'chardson v. Perales, 402 U.S.
389, 401 (1971); see also Smz'th v. Bowen, 826 F.2d 1l20, 1121 (D.C. Cir. 1987).
Substantial evidence is more than a scintilla, but less than a preponderance of the
evidence. Affum v. Um'ted States, 566 F.3d ll50, 1163 (D.C. Cir. 2009). Once it is
determined that the finding is supported by such evidence, the court must treat the ALJ’s
finding as conclusive. 42 U.S.C. § 405(g).
The court must also determine whether the ALJ correctly applied the relevant legal
standards. See Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (citations
omitted); Jackson, 271 F. Supp. 2d at 33 ("Even if supported by substantial evidence . . .
the court will not uphold the Commissioner’s findings if the Commissioner reached them
by applying an erroneous legal standard."). In so doing, the court must "carefully
scrutinize the entire record," Jackson, 271 F. Supp. 2d at 34 (quoting Davis v. Heckler,
566 F. Supp. 1193, 1195 (D.D.C. 1983)), to determine whether the ALJ "has analyzed all
evidence and has sufficiently explained the weight he has given to obviously probative
exhibits." Sz``mms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. l989). The court, however,
may not "substitute its own judgment for that of the Commissioner." Chevalz'er v.
shazaza, 874 F. Supp. 2, 3 (D.D.C. 1993 (¢mng Davzs, 566 F. Supp. ar 1195).
3
ANALYSIS
The Social Security Act provides SSI benefits for claimants who demonstrate they
are disabled. Relevant laws define "disability" as the "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)(l)(A) (2006); see also 20 C.F.R. § 404.l505.
The lCommissioner conducts a five-step sequential evaluation to determine
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 4l6.920(a)(4). The
burden of proof rests on the claimant in steps one through four, but shifts to the
Commissioner at step five. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004).
Failure at any step of the evaluation ends the inquiry. See 20 C.F.R. §§ 404.l520(a)(4),
4l6.920(a)(4). At step one, the claimant must show that he is not presently engaged in
"substantial gainful activity." Ia’. §§ 404.l520(a)(4)(i), 4l6.920(a)(4)(i). At step two, the
Commissioner must determine whether the claimant has at least one "severe impairment"
or combination of impairments that "specif``lcally limits [his] . . . ability to do basic work
activities" for no less than 12 months See id. §§ 404.l520(a)(4)(ii), 4l6.920(a)(4)(ii).
At step three, the Commissioner must determine whether the claimant’s impairment or
combination of impairments "meets or equals" an impairment listed in the relevant
regulations, Appendix l to subpart P of 20 C.F.R. § 404 ("Listed Impairments"). Id. §§
404.l520(a)(4)(iii), 4l6.920(a)(4)(iii). If equivalence is found, the claimant "is deemed
disabled and the inquiry is at an end." Butler, 353 F.3d at 997; 20 C.F.R. §§ 404.l520(d),
4
4 l 6.920(d). lf not, before moving to the fourth step, the Commissioner assesses a
claimant’s "residual functional capacity" ("RFC")-that is, the Commissioner must
determine the most work the claimant can still do despite his limitations. [d. §§
404.l520(a)(4), 4l6.920(a)(4), 404.l545(a). At step four, the claimant must demonstrate
that he is incapable of performing his previous work based on his RFC. Ia’. §§
404.l520(a)(4)(iv), 4l6.920(a)(4)(iv). At step flve, the burden shifts to the
Commissioner to demonstrate that the claimant can "make an adjustment to other work"
in the national economy, considering his age, education, past work experience, and RFC.
la’. §§ 4()4.l520(a)(4)(v), 4l6.920(a)(4)(v). lf the Commissioner concludes that the
claimant can engage in "other work," then he is not disabled under the regulations. Ia’. §§
404.l52()(g), 4l6.920(g). Otherwise, the claimant is disabled and entitled to benefits. Id.
If a claimant’s application for SSI benefits is initially denied, he may seek review
by an administrative law judge ("ALJ"). See id. § 404.929. When an ALJ adjudicates
disability claims, the ALJ must compile a comprehensive record incorporating all facts
pertinent to the Commissioner’s determination. See Sz'mms v. Sullivan, 877 F.2d l047,
1050 (D.C. Cir. l989). The ALJ’s opinion must show that he "has analyzed all evidence
and has sufficiently explained the weight he has given to obviously probative exhibits,"
ia’., including evidence that was rejected, Brown v. Bowen, 794 F.2d 703, 708 (D.C. Cir.
l986). A claimant may appeal the ALJ’s decision to the Appeals Council. 20 C.F.R.
§ 4l6. l470(a). As part of its review, the Council must consider any additional evidence
submitted by the claimant that is new, material, and reasonably related to the period prior
to the ALJ’s decision. See ia'. § 4l6.1470(b).
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Mitchell asks this Court to reverse the ALJ’s decision and order the Commissioner
to award him SSI benefits, or alternatively, remand the case to the ALJ for
reconsideration, citing several alleged deficiencies in the Commissioner’s decision.
Specifically, Mitchell alleges the ALJ erred (l) at step three by failing to consider the
judgment of a medical advisor designated to provide an opinion on equivalence of his
combined impairments, (2) at step three by failing to consider whether a combination of
Mitchell’s impairments "meet or equal" an applicable Listed impairment, (3) after step
three by failing to address evidence contradicting conclusions with respect to Mitchell’s
residual functional capacity ("RFC") to work, and (4) at step four in concluding, without
substantial evidence, that Mitchell was capable of performing past relevant work. For the
following reasons, l find plaintiffs arguments in favor of reversal unconvincing, but I
find that the ALJ did commit several errors of law at step three warranting remand.
A. The ALJ Failed to Appropriately Consider Equivalent Impairments.
Mitchell first argues that the ALJ applied incorrect legal standards by failing to
consider a sufficient medical evaluation from a physician on the issue of equivalence of
his combined impairments. Pl.’s Mem. of Law in Support of Pl.’s Mot. ("Pl.’s Mem.") 5.
At step three of the five-step disability inquiry, the ALJ must determine whether the
claimant’s impairment, or combination of impairments, "meets or equals" an impairment
listed in the regulations. See 20 C.F.R. §§ 404.l52()(a)(4)(iii), 416.920(a)(4)(iii). The
relevant regulations provide that an impairment, or combination of impairments, is
medically equivalent to a listed impairment "if it is at least equal in severity and duration
to the criteria of any listed impairment, Ia’. § 4l6.926(a). While the ALJ (or Appeals
Council) makes the ultimate decision on medical equivalence, ia'. § 416.926(€), Social
Security Ruling (SSR) 96-6p "requires that the judgment of a physician . . . designated by
the Commissioner on the issue of equivalence . . . must be received into the record as
expert opinion evidence and given appropriate weight," SSR 96-6p, 61 Fed. Reg. 34466,
34468 (July 2, l996).
Plaintiff alleges that the ALJ erred by relying solely on the report of 0pthamologist
Dr. Stoleru-who evaluated Mitchell’s visual impairments, not his hearing impairment-
in concluding that Mitchell does not have an impairment or combination of impairments
that "meets or equals" a listed impairment. Pl.’s Mem. 5-6. In response, defendant does
not dispute the insufficiency of Dr. Stoleru’s opthamology report in the equivalence
analysis, but instead points to the ALJ’s consideration of physician Dr. Nelson-
Desiderio’s report, which evaluated Mitchell’s visual and hearing impairments. Def.’s
Mem. in Support of Def.’s Mot. ("Def.’s Mem.") 7-9. This suggestion is misleading. At
step three, the ALJ cited Dr. Stoleru’s findings alone to support his sole conclusion that
Mitchell’s visual impairment did not meet Listing 2.02 (loss of visual acuity), which
requires the claimant’s vision to be 2()/200 or less in the better eye after best correction.
AR at 33. Although the ALJ referenced Dr. Nelson-Desiderio’s report and Mitchell’s
hearing loss in subsequent sections regarding residual functional capacity ("RFC"), the
ALJ made no mention of either in the equivalence analysis. AR at 33-40. Needless to
say, determination of a plaintiffs RFC is a separate inquiry from the step three
equivalence determination. Warfield v. Colvin, No. CV 13-1357, 2015 WL 561 l400, at
*6 (D.D.C. Sept. 22, 2()15) (Leon, J.); see Carbajal v. Astrue, No. l()-cv-OZOZS-PAB,
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2011 WL 2600984, at *3 (D. Co1o. June 29, 2011) ("The lack ofa required medical
opinion on this issue is not rendered harmless by the ALJ’s findings at step four and
five.").
Mitchell makes a separate, but related, argument that the ALJ failed to consider
whether a combination of Mitchell’s impairments equaled any listing other than that
related to loss of visual acuity, such as Listing 2.07-Disturbance of labyrinthine-
vestibu1ar disorder, a condition affecting one’s movement and sense of balance. Pl.’s
Mem. 6~7. Mitchell argues the ALJ’s determination appears to disregard that Mitchell
was found to suffer from two impairments: blindness in his right eye, and deafness in his
right ear. Pl.’s Mem. 7. Indeed, there is no mention of Mitchell’s hearing impairment in
the ALJ’s limited step three analysis. AR at 33. Nothing in the ALJ’s decision indicates
whether he considered evidence of Mitchell’s hearing impairment, or the combination of
his impairments, in the equivalence analysis. Because the ALJ retains the ultimate
responsibility of determining equivalence, it is incumbent upon the ALJ to adequately
explain his reasoning, including which evidence is credited and which is rejected. See
Brown v. Bowen, 794 F.2d 703, 708-09 (D.C. Cir. 1986). As to consideration ofthe
equivalence of Mitchell’s combined impairments, the ALJ failed here.
Accordingly, the Court will vacate and remand for the ALJ to correct the errors
relating to his step three determination. See Warfield, 2015 WL 5611400, at *7
(remanding where ALJ did not adequately consider whether claimant’s combined
physical and mental impairments were equivalent to a listed impairment); Bumett v.
Comm ’r ofSoc. Sec. Aa'rnz``n., 220 F.3d ll2, 120 (3d Cir. 2000) (remanding for ALJ to
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"explain his findings at step three, including an analysis of whether and why [claimant’s]
impairments, or those impairments combined, are or are not equivalent in severity to one
of the listed impairments"). Specifically, the ALJ should expressly consider the medical
opinion of a physician regarding equivalence of plaintiffs visual and hearing
impairments,z and give the appropriate weight thereto in determining whether the
combination of Mitchell’s impairments is equivalent to a Listed Impairrnent.
B. The ALJ’s RFC Analysis Appropriately Addressed Contradictory Evidence
and Is Supported by Substantial Evidence.
If an ALJ finds no equivalent listings at step three, he then assesses the claimant’s
residual functional capacity ("RFC")_z``.e. the most work the claimant can do despite his
limitations. 20 C.F.R. §§ 404.l52()(a)(4), 4l6.920(a)(4), 404.l545(a). At step four, the
claimant must demonstrate that he is incapable of performing his previous work based on
his RFC. [a’. § 404.l520(e). Mitchell argues that the ALJ applied incorrect legal
standards by failing to address contradictory evidence about Mitchell’s increased tearing
in the RFC analysis. Pl.’s Mem 8-1 l. Mitchell also contends that the evidence was
insufficient to support the ALJ’s conclusion that Mitchell can perform past relevant work.
Pl.’s Mem l2. For the following reasons, l disagree.
Applicable regulations prescribe a two-step process in the RFC analysis to
evaluate a claimant’s subjective complaints and determine whether he suffers from
2 SSR 96-6p provides that consideration of a Disability Determination and Transmittal form
containing a State agency physician’s signature typically satisfies this requirement. SSR 96-6p,
61 Fed. Reg. 34466 (July 2, 1996). Under SSR 96-6p, however, an ALJ must obtain an updated
report from a medical expert in certain situations. Id. The Court makes no findings as to
whether this form was properly completed or is sufficient here.
9
symptoms, including pain, that affect his ability to perform work activities. See Butler v.
Barnhart, 353 F.3d 992, 1004 (D.C. Cir. 2004). First, objective evidence must show
medical impairments that can "reasonably be expected to produce," 20 C.F.R. §§
404.l529(b), 4l6.929(b), "the actual pain, in the amount and degree, alleged by the
claimant." Buller, 353 F.3d at 1004 (internal quotation marks omitted). If the claimant
meets this first step, the ALJ then evaluates the persistence and intensity of the claimant’s
pain, as well as the extent to which it impairs his ability to work. 20 C.F.R.
§§ 404.l529(c)(1), 416.929(0)(1); Butler, 353 F.3d at 1004. This second step requires the
ALJ to evaluate the credibility of the claimant’s subjective claims of pain and its
functional effects. See Butler, 353 F.3d at 1005. "The ALJ’s decision ‘must contain
specific reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and
reasons for that weight."’ Butler, 353 F.3d at 1005 (quoting SSR 96-7p, 61 F.R. 34483
(July 2, 1996)). "The ALJ must [also] explain how he considered and resolved any
‘material inconsistencies or ambiguities’ evident in the record, as well as the reasons for
rejecting medical opinions[.]" Butler, 353 F.3d at 1000 (internal citation omitted).
The ALJ correctly applied the relevant legal standards in evaluating Mitchell’s
subjective complaints and determining whether he suffers from symptoms that affect his
ability to perform work activities. First, the ALJ found that Mitchell’s "medically
determinable impairments could reasonably be expected to cause the alleged
symptoms[.]" AR at 34. Next, the ALJ determined that "[Mitchell’s] statements
10