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Dunham v. Astrue

March 24, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Phillip Dunham appeals the decision the Commissioner of the Social Security Administration ("SSA"), finding Dunham ineligible for Social Security disability insurance ("SSDI") benefits. Dunham claims that the administrative law judge ("ALJ"), whose decision became the Commissioner's, erred by deciding that Dunham was not disabled within the regulations. The Commissioner opposes and moves for affirmance of his final decision. Because the ALJ did not consider or explain evidence contradicting his conclusion about Dunham's skin conditions or determine adequately whether Dunham can ambulate effectively, his decision was not supported by substantial evidence. Dunham's motion for reversal will be granted in part, the Commissioner's motion for affirmance will be denied, and the case will be remanded for further proceedings.


Dunham suffers from degenerative joint disease or osteoarthritis, and human immunodeficiency virus ("HIV"). (Compl. ¶ 2.) Dr. David Lanier treated Dunham for his HIV infection, which was under control. (Administrative R. ("R.") at 899; App. of Exs. to the Mem. in Supp. of Appeal of Phillip Dunham ("Ex.") 33 at 1.)*fn1 In a February 2004 report, Dr. Lanier stated that Dunham had herpes zoster "disseminated or with multidermatomal eruptions[,]" resistant to treatment, and a skin or mucous membrane condition with "extensive fungating or ulcerating lesions not responding to treatment." (R. at 845-46.) Dr. Lanier later noted in an August 2004 report that Dunham was not experiencing any opportunistic infections in connection with his HIV. (Id. at 899.) However, although Dr. Lanier stated in January 2006 that the HIV disease did not limit Dunham's ability to work, he added that Dunham's other medical conditions, including "significant degenerative osteoarthritis affecting his hip, knees and back" and "severe eczema" for which Dunham received care from a dermatologist, "appeared to have produced impairments." (Ex. 33 at 1-2.)

Dr. Peter Trent treated Dunham for his degenerative joint disease. Dr. Trent performed a right total hip replacement surgery on Dunham in 2004. (R. at 878.) After hip surgery, Dunham was using a cane and experienced "little, if any, pain in the hip[,]" but continued to experience pain in his right knee. (Id. at 872.) Dunham's knee pain, and MRI results indicating medial and lateral meniscal tears, later required arthroscopy, a synovectomy, and a partial medial meniscectomy in March of 2005. (Id. at 866, 871.) After this knee surgery, Dr. Trent concluded that Dunham should apply for disability because Dunham had "significant impairment" to his leg "coupled with his underlying illness and the degenerative joint disease involving his hip[,] which was severe enough to require hip replacement." (Id. at 865.) Dr. Trent opined several months later that the hip and knee surgeries resulted in restrictions on Dunham's standing, walking, sitting, bending, crouching, and climbing, and that Dunham was "fit for only sedentary work." (Ex. 32 at 1.) By March of 2006, Dr. Trent found that Dunham was "totally disabled and . . . expected to remain so in the foreseeable future" because of the chronic fatigue from his HIV treatment, the pain with doing activities of daily life, and the limitations on standing, walking, lifting, climbing, and carrying. (R. at 951.)

Dunham's SSDI application was initially denied and then denied again upon reconsideration. (Compl. ¶¶ 3, 4.) He appealed the denial and an ALJ held a hearing in March of 2006. (Id. ¶ 6.) The ALJ concluded that Dunham was not disabled according to any of the listings of impairments contained in the applicable regulations. (Id. ¶ 6.) See 20 C.F.R. 404, Subpart P, App'x 1 §§ 1.02, 1.03, 14.08. The ALJ found that Dunham did not meet the listings in § 1.02 and § 1.03, which both involve musculoskeletal joint conditions, because after some temporary impairment, Dunham was able to ambulate effectively. The ALJ relied on evidence that Dunham "was much more active and walking every day," experiencing "little, if any, hip pain" after hip surgery. (R. at 21.) After knee surgery, Dunham's recovery was expected to take six months and he "was able to walk with a cane." (Id.) The ALJ also concluded that Dunham did not meet the § 14.08(F) listing, which covers claimants with HIV infections and skin or mucous membrane conditions, because his chronic folliculitis had been successfully treated, and there was no ongoing treatment for recurrent skin conditions or opportunistic infections. (Id.)

The ALJ gave Dr. Lanier's opinion regarding Dunham's HIV infection controlling weight, but Dr. Lanier's opinion "regarding [Dunham's] ability to walk or stand [was] not given significant weight." (Id. at 19.) The ALJ found that Dr. Trent's opinion that Dunham was disabled was not supported by objective findings and was inconsistent with other evidence on the record. (Id.)

However, the ALJ accorded significant weight to Dr. Walter Goo's opinion that Dunham was "physically capable of performing activities at the sedentary exertional level." (Id. at 20.) The ALJ found that the claimant's "complaints of some pain [were] reasonable, considering the diagnoses of osteoarthritis and degenerative joint disease" (id. at 22), but that "the claimant's assertions regarding the severity, persistence, and limiting effects of his symptoms [were] not consistent with the medical evidence, his demeanor at the hearing, or the testimony regarding his actual physical activities." (Id. at 24.) Overall, the ALJ accorded Dunham's complaints of disabling pain and other non-exertional limitations "only fair credibility."*fn2 (Id. at 25.)

Dunham appealed the ALJ's decision to the SSA's Appeals Council, which declined further review. (Id. at 6.) Dunham seeks reversal of SSA's final decision and an award of benefits arguing, among other things, that he meets the listings in § 1.02, § 1.03, and § 14.08.*fn3 The Commissioner opposes Dunham's motion for reversal and moves to affirm the agency's decision.


A district court's review of the SSA's findings of fact is limited to whether those findings are supported by substantial evidence. 42 U.S.C. § 405(g); 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[,]'" Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)), and is "more than a mere scintilla of evidence," but "something less than a preponderance of the evidence." Ware v. Barnhart, 357 F. Supp. 2d 134, 138 (D.D.C. 2004) (internal quotation marks omitted). In making this determination, "the court must carefully scrutinize the entire record, but may not reweigh the evidence and replace the [SSA's] judgment regarding the weight of the evidence with its own." Brown v. Barnhart, 370 F. Supp. 2d 286, 288 (D.D.C. 2005) (internal quotation marks omitted) (quoting Jackson v. Barnhart, 271 F. Supp. 2d 30, 34 (D.D.C. 2002)). The inquiry examines whether the ALJ "'has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits[.]'" Crawford v. Butler, 556 F. Supp. 2d 49, 52 (D.D.C. 2008) (quoting Butler, 353 F.3d at 999).


In order to determine whether a claimant is disabled, an ALJ is required to perform a five-step evaluation. 20 C.F.R. ยงยง 404.1520, 416.920; Butler, 353 F.3d at 997. The claimant carries the burden of proof for the first four steps. At step one, the ALJ determines whether the claimant has been employed in substantial gainful work since the onset of his impairment. If the claimant has performed substantial gainful work, his claim will be denied. If the claimant has not performed substantial gainful work, the ALJ must determine at step two whether the claimant's impairments are medically severe. If the impairments are not severe, the claimant is not disabled. If the impairments are severe, the ALJ at step three must compare the claimant's impairments with those in the listing of impairments promulgated by the SSA. If the claimant suffers from an impairment that meets the duration requirement and meets or equals an impairment listed in Appendix 1 of the regulations, the claimant is deemed disabled and the inquiry ends. If no match exists, the ALJ must continue the evaluation. At step four, the ALJ must determine if the claimant retains any residual functional capacity, namely, ...

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