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Davis v. Astrue

March 18, 2009


The opinion of the court was delivered by: Royce C. Lamberth United States District Judge


This matter is before the Court on plaintiff's Motion for Reversal of the Social Security Decision Unfavorable Decision [sic] Dated February 9, 2006 and defendant's Motion for Judgment of Affirmance. For the reasons discussed below, the Court will deny the former and grant the latter.


On October 17, 2002, plaintiff applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits. A.R. 13, 84-86, 260-262. She represented that she became unable to work on June 19, 2001 "due to emotional distress and pain." A.R. 13; A.R. 90.

Plaintiff's applications were denied initially and on reconsideration, and plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A.R. 13, 266-70, 273-77. The hearing took place on November 10, 2005, A.R. 13, 278-315, and the ALJ issued a decision denying plaintiff's applications on February 9, 2006. A.R. 13-25. The Appeals Council denied plaintiff's request for review of the ALJ's decision, A.R. 5-7, and the ALJ's February 9, 2006 decision is the final decision of the Commissioner of Social Security ("SSA"). Plaintiff timely brought this action under 42 U.S.C. § 405(g).


Plaintiff moves for reversal of the SSA's final decision or, in the alternative, for remand to the SSA, on the grounds that: (1) the ALJ's decision is not supported by the evidence, (2) the ALJ erred in not addressing fully plaintiff's claim of mental impairment, (3) the ALJ did not assess plaintiff's impairment due to chronic headaches, medication and pain as it related to obtaining employment, and (4) the ALJ improperly found that plaintiff's fibromyalgia was not severe. See Mot. for Reversal of the Social Security Division [] Dated February 9, 2006 ("Pl.'s Mot.") at 1.

A. Standard of Review

The Court may affirm the SSA's decision only if it is supported by substantial evidence in the record and is not tainted by an error of law. See Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987); see also 42 U.S.C. § 405(g). Substantial evidence "is such evidence as a reasonable mind might accept as adequate to support a conclusion." Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Although the ALJ's decision is entitled to considerable deference, the Court still must ensure that substantial evidence supports the decision. See Davis, 862 F. Supp. at 4.

B. Evaluation of Disability

"The term 'disability' means... [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)(1)(A). A claimant whose "physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work," may be determined to be "under a disability." 42 U.S.C. § 423(d)(2)(A). A "'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is the claimant's burden to "furnish[] such medical and other evidence of the existence [of a disability] as the [SSA] may require." 42 U.S.C. § 423(d)(5)(A).

There is a five-step evaluation process to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a). The claimant bears the burden of production and proof in the first four steps of the process. See Stankiewicz v. Sullivan, 901 F.2d 131, 133 (D.C. Cir. 1990). Only after reaching the fifth and final step does the SSA bear the burden of showing that jobs exist for the applicant. See id.; see also Brown v. Bowan, 794 F.2d 703, 706 (D.C. Cir. 1986). The Court will address each step in turn.

1. Plaintiff's Work Activity

First, the SSA considers a claimant's work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is working and her work is substantial gainful activity, she is not disabled regardless of her medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(b). The record demonstrates, and the ALJ found, that plaintiff has not engaged in substantial gainful activity since June 19, 2001. A.R. 14.

2. Severity of Plaintiff's Impairment

In the second step, the SSA considers the medical severity of the claimant's impairment or impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If a claimant has no "impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities," the SSA will find that she "do[es] not have a severe impairment and [she is], therefore, not disabled." 20 C.F.R. § 404.1520(c).

The ALJ found that plaintiff is severely impaired by depression, anxiety, migraine headaches, fibromyalgia and obesity. A.R. 14.

a. Depression and Anxiety

As of February 2003, Linda McGhee, a mental health therapist at George Washington University Hospital, had been treating plaintiff twice each week. A.R. 16, 193. "Diagnoses included major depressive episode with psychotic features and paranoid personality disorder."

A.R. 16; A.R. 193-94. Ms. McGhee found that plaintiff was edgy and defensive, was prone to angry outbursts, had "difficulty keeping her emotions and anger in check," and "show[ed] some symptoms of paranoia and delusional thoughts." A.R. 193. Noting plaintiff's poor social judgment and impulse control, among other observations, Ms. McGhee concluded that plaintiff's "mental difficulties are barriers to [her] being able to survive in a workplace setting." A.R. 194.

Neil Schiff, a psychologist, evaluated plaintiff in April 2003 and diagnosed major depressive disorder, anxiety disorder, and personality disorder. A.R. 16, 196-98. In addition to conducting an interview, he administered the Weschler Adult Intelligence Scale and Weschler Memory Scale tests. A.R. 195. He found that plaintiff's "cognitive abilities fell within the Low Average range," her "attention and concentration skills fell within the average range," her memory skills were in the low average to average range, and that she "exhibited a significant weakness in the Comprehension subtest, which involves social judgment and the ability to use language for understanding and communication." A.R. 197. Although plaintiff "[did] not appear to be motivated to seek employment," she "seem[ed] capable of performing semi-skilled or unskilled work in a low-stress environment." Id. Schiff noted that plaintiff "ha[d] generally not had stable employment" for the preceding five years, and she did "not appear to be motivated to seek employment" at the time of the assessment. Id. "Given her mental health history," Schiff concluded that she would "need significant support should she decide to seek a job," ideally "semi-skilled or unskilled work in a low-stress environment." Id.

The administrative record included a Psychiatric Review Technique form dated April 17, 2003, reflecting the conclusions of Patricia Cott, Ph.D. A.R. 199-212. Cott found that plaintiff's impairments (affective disorders and anxiety-related disorders) were not severe. A.R. 199. She reported that plaintiff has mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. A.R. 209. A second Psychiatric Review Technique form, prepared by Gemma Nachbahr, Ph.D. on April 5, 2004, indicated that plaintiff "has mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace." A.R. 17; A.R. 248. Nachbahr was persuaded that plaintiff shows "evidence of a mood disorder and major depression." A.R. 17; A.R. 241. The results of a Mental Residual Functional Capacity Assessment, dated April 6, 2004, indicated "no significant limitations in [plaintiff's] understanding and memory," sustained concentration and persistence, social interaction or adaptation, and moderate limitations in her ability to carry out detailed instructions and to maintain concentration for extended periods, to complete a normal workday or workweek without interruptions from psychologically-based symptoms, to perform at a consistent pace without an unreasonable number and length of rest periods, and her ability to respond appropriately to changes in the work setting. A.R. 17.

The ALJ gave "little weight" to Cott's opinion and gave "significant weight" to Nachbhar's assessment because "Nachbahr's assessment... reflects a more reasonable interpretation of the evidence concerning [plaintiff's] psychiatric impairment." A.R. 19.

Giuseppe Scarcella, M.D., a psychiatrist, evaluated plaintiff for the State Agency in March 2004. A.R. 16, 225-26. He noted her prior diagnoses of major depressive disorder, anxiety disorder and personality disorder, and plaintiff's report that she suffered depression and anxiety attacks. A.R. 225-26. Among other observations, Dr. Scarcella found plaintiff to be "overtalkative" and "occasionally anxious," and "superficially cooperative during the interview." A.R. 226. She had "a tendency to emphasize primarily a variety of medical problems." A.R. 226. She was oriented as to time, place and persons, and her memory overall was well preserved. A.R. 226. Her "[j]udgment was considered to be questionable." A.R. 226. It was his impression that plaintiff had a "Mood Disorder Not Otherwise Specified..., with associated Anxiety Disorder Not Otherwise ...

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