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Ray v. Astrue

June 21, 2010


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Kevin Ray, Sr. brings this action seeking review of the final administrative decision by Defendant Michael J. Astrue, in his official capacity as Commissioner of Social Security (the "Commissioner"),*fn1 denying Plaintiff's claim for Supplemental Security Income Benefits ("SSIB") pursuant to 42 U.S.C. § 405(g). Pending before the Court are Plaintiff's Motion for Judgment of Reversal and Defendant's Motion for Judgment of Affirmance.*fn2 After reviewing the parties' briefs, the administrative record, and the relevant case law, the Court shall GRANT Plaintiff's [5] Motion for Judgment of Reversal and shall DENY Defendant's [6] Motion for Judgment of Affirmance. For the reasons that follow, the Commissioner's decision below is reversed-in-part and is remanded for further proceedings consistent with this Memorandum Opinion.


A. Legal Framework and Procedural History

Plaintiff filed an application for SSIB pursuant to Title XVI of the Social Security Act on February 14, 1996. See Administrative Record ("A.R.") at 98-99. To qualify for SSIB, a claimant must demonstrate a disability, which is defined by the Social Security Act as an "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 has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 416(i)(1); id. § 1382c(a)(3)(A). In addition, a claimant seeking SSIB must have a severe impairment that makes him unable to perform past relevant work or any other substantial gainful work that exists in the national economy. See id. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Substantial gainful work activity is work activity that involves doing significant physical or mental activities and is the kind of work that is usually done for pay or profit. See 20 C.F.R. § 404.1472.

In making a disability determination, an Administrative Law Judge ("ALJ") is required to use a five-step sequential analysis examining (1) the claimant's recent work activity, (2) the severity and duration of the claimant's impairments, (3) whether the claimant's impairments are medically equivalent to those contained in the Listing of Impairments promulgated by the Social Security Administration, (4) the claimant's residual functional capacity and ability to perform past work, and (5) the claimant's ability to perform jobs reasonably available in the national economy. Id. §§ 404.1520(a)(4), 416.920(a)(4); see also Brown v. Barnhart, 408 F. Supp. 2d 28, 32 (D.D.C. 2006). At the first step in the analysis, the ALJ must determine whether the claimant is working and whether the work is substantial gainful activity; if so, the claim must be denied. See Brown, 408 F. Supp. 2d at 32. At step two, the ALJ must determine whether the claimant's impairments are severe; if they are not, the claim must be denied. Id. In step three, the ALJ compares the impairments to a listing of impairments that automatically qualify as a disability under the regulations. If the claimant's impairments match those listed, disability is conclusively presumed. Id. If there is no match, the ALJ proceeds to step four and determines whether the claimant has any residual functional capacity to perform his old job. If so, the claim will be denied. Id. If not, the ALJ proceeds to step five and determines whether there is any other gainful work in the national economy that the claimant could perform notwithstanding his disability. Although the claimant bears the burden of proof with respect to the first four steps of the analysis, at step five the burden shifts to the Social Security Administration to demonstrate that the claimant is able to perform "other work" based on his residual functional capacity, age, education, and past work experience. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). If so, the claim must be denied.

Plaintiff's application alleged an inability to work beginning on October 14, 1993, due to nerve damage to the right side and low back pain. A.R. at 98-99, 101. The application was denied initially and on reconsideration. Id. at 84-85. Plaintiff filed a timely request for a hearing, id. at 96-97, and a hearing was subsequently held before an Administrative Law Judge ("ALJ") on October 23, 1997, see id. at 41. Following the hearing, the ALJ issued a decision unfavorable to Plaintiff. Id. at 12-27. Plaintiff requested review by the Appeal Council, id. at 10-11, which ultimately concluded that there was no basis for granting his request for review, id. at 7-8. Plaintiff appealed that decision to the United States District Court for the District of Columbia. See Ray v. Massanari, Civ. Act. No. 01-437 (CKK). On January 31, 2004, this Court reversed the decision below in part and remanded to the Commissioner for further proceedings consistent with the issued decision. A.R. at 254-64.

On November 29, 2004, the Appeals Council vacated the final decision of the Commissioner and remanded the case to an ALJ for further proceedings. A second hearing was then held on November 21, 2005, in Washington, D.C. See id. at 224, 285. At the time of this hearing, Plaintiff was a 43 year-old male resident of the District of Columbia. Id. at 289-90. He has a 9th grade high school education and last worked in 1992 driving a truck. Id. at 290. Plaintiff was present at the hearing and was represented by counsel; an impartial vocational expert ("VE") was present as well. Id. at 287. In a decision dated December 12, 2005, the ALJ again determined that Plaintiff was not disabled within the meaning of the Social Security Act and denied the requested benefits, which decision became the final decision of the Commissioner. See generally id. at 224-231.

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Id. at 226. At step two, the ALJ found that the medical evidence indicated that Plaintiff had "dislocations - all types; and affective disorders," which qualified as "severe." Id. The ALJ determined at step three that these impairments did not meet or medically equal, either singly or in combination, one of the impairments listed in Appendix 1, Subpart P, No. 4 (20 C.F.R. § 404.1520(d)), specifically, Listing 1.00 (Musculoskeletal System), Listing 11.00 (Neurological), and Listing 12.04 (Affective Disorders). Id. At step four, the ALJ assessed Plaintiff's RFC and found that he "retained the residual functional capacity to perform light and sedentary level work." Id. at 228. The ALJ indicated, however, that his "capacity to perform a full range of work is diminished, because he requires unskilled work, with a sit/stand option; limited general public contact; and limited dominant hand usage." Id. Because there was no prior relevant work history in the file and because Plaintiff stated that he could not remember what work he had engaged in, the ALJ also determined at step four that Plaintiff could not return to his past relevant work. Id. at 229. The ALJ therefore continued on to step five, at which stage he concluded, based on the VE's testimony, that Plaintiff could perform a significant number of jobs in the national economy at the light level (e.g., inspector, grading and sorter, bench worker) and at the sedentary level (e.g., quality control worker, security, and finish machine tender). Id. 230. Accordingly, the ALJ determined that Plaintiff "is not under a 'disability' as defined in the Social Security Act" and was therefore ineligible for SSIB. Id. at 230.

B. Evidence Contained in the Administrative Record

The record at the time of the hearing consisted of both medical evidence submitted in connection with Plaintiff's first administrative hearing in 1998 and additional medical evidence for purposes of the hearing on remand. Given the length of time between hearings, both the ALJ's decision and the parties' present briefing focus principally on the latter evidence - that is, medical records that were newly-obtained after this Court's initial decision remanding this case for further proceedings.*fn3 The Court shall therefore do the same.

1. Physical Health Records

On August 3, 2005, Dr. Rida Azer performed an orthopedic evaluation of Plaintiff based upon his complaint of nerve damage to his right side and low back pain. See id. at 273-84. Dr. Azer noted that Plaintiff was alert and oriented; appeared to be in no acute distress; and was able to concentrate and understand throughout the exam, although he did have some trouble understanding the medical history form he was required to complete. Id. at 275. Plaintiff was reported to have 4/5 muscle strength in his right upper and lower extremity with decreased hand grasp on the right. Id. Plaintiff was also reported to have evidence of hypoesthesia*fn4 over his right upper and lower extremity and to have point tenderness over his lumbar spine region with negative straight leg raise test bilaterally. Id. Dr. Azer indicated that there was no other evidence of a decreased range of motion, although it was noted that Plaintiff brought a cane with him to the visit. Id. While Plaintiff was able to ambulate without use of the case, when he did so, his right lower extremity drags as he ambulated; with the cane, he was able to propel and show a more improved gait and station. Id. Dr. Azer noted that Plaintiff "does need to continue using this assistive device to help with his ambulation." Id. at 276. Plaintiff was also reported to "have limitation [in the] use of his right hand, arm and fingers." Id. Dr. Azer concluded that "[Plaintiff] should not perform any duties that include lifting, carrying or handling objects with the right upper extremity, prolonged standing or walking." Id. In addition, while Plaintiff "is able to sit," Dr. Azer indicated that "he should not sit for prolonged periods of time."

Dr. Azer also completed a Medical Source Statement of Ability to do Work-Related Activities (Physical) based upon the physical exam of Plaintiff. Id. at 278-84. As set forth therein, Dr. Azer indicated that Plaintiff could not lift or carry more than 10 pounds occasionally with his right upper extremity; could stand and work for 2 hours in an 8-hour workday, but indicated that a medically required hand-held assistive device was necessary for ambulation; and could sit for about 6 hours in an 8-hour workday. Id. at 278-79. With respect to Plaintiff' postural limitations, Dr. Azer reported that Plaintiff could occasionally engage in balancing, but could never climb ramps, stairs, ladders, ropes or scaffolding and could never kneel, crouch, crawl or stoop. Id. at 279. In addition, Dr. Azer reported that while Plaintiff had no manipulative limitations for his left upper extremity, with respect to his right upper ...

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