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Carnett v. Colvin

United States District Court, D. Columbia.

February 24, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

RICKEY D. CARNETT, Plaintiff, Pro se, Tokyo Japan.

For MICHAEL JAMES ASTRUE, Comissioner of Social Security, Defendant: Thomas McLean Nanni, LEAD ATTORNEY, SOCIAL SECURITY ADMINISTRATION, Office of the General Counsel, Baltimore, MD.



Plaintiff Rickey D. Carnett brings this action seeking review of the final administrative decision by Defendant Carolyn W. Colvin, in her official capacity as Acting Commissioner of Social Security,[1] denying the Plaintiff's claim for Disability Insurance Benefits pursuant to 42 U.S.C. § 405(g). Presently before the Court are the Plaintiff's [10] Motion for Judgment of Reversal, and the Defendant's [11] Motion for Judgment of Affirmance.[2] Upon consideration of the pleadings, the administrative record, and the relevant legal authorities, the Court finds the administrative decision is not procedurally deficient and is supported by substantial evidence. Accordingly, for the reasons stated below, the Plaintiff's motion is DENIED and the Defendant's motion is GRANTED.


Plaintiff was born in August 1963 and, at the time of the hearing before the Administrative Law Judge (" ALJ" ) on August 21, 2009, had recently moved to Japan as his wife's job was transferred there.[3] Administrative Record (" A.R." ) 19, 47, 126. Plaintiff is a high school graduate. Id. at 36. Plaintiff was trained as a carpenter and employed by the United States Air Force (" USAF" ) in varying capacities for the 15 years leading up to his claim for disability. Id. at 38, 118. Plaintiff was employed as a structural supervisor with the military from 1990 to 1992, and from 1994 to 1997. Id. at 118. In between that time, from 1992 to 1994, he was employed as a self help planner by the military. Id. From 1997 to 2001, Plaintiff served as a project manager on construction projects within the military. Id. Finally, Plaintiff was employed as a housing facilities supervisor at Travis Air Force Base in California from 2004 to 2005. Id. at 44, 118. Plaintiff has been unemployed since his retirement from the USAF on August 31, 2005, and also claims this as his date of disability in the instant action. Id. at 39, 117. After his retirement from the USAF, Plaintiff took some college courses at the New Jersey Institute of Technology, although he was in the process of attempting to transfer at the time of the hearing to the University of Maryland where he anticipated taking classes while living overseas. Id. at 36-37.

On July 30, 2007, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, alleging disability beginning on August 31, 2005, due to multiple orthopedic and neurological problems, as well as depression.[4] A.R. 117. To qualify for disability insurance benefits and supplemental security income, a claimant must demonstrate a disability, which is defined by the 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." 42 U.S.C. § 416(i)(1). In addition, a claimant seeking disability insurance benefits 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. Id. at § 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. 20 C.F.R. § 404.1572(a)-(b).

In making a disability determination, the 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. 20 C.F.R. § § 404.1520(a)(4), 416.920(a)(4); see also Blackmon v. Astrue, 719 F.Supp.2d 80, 82-83 (D.D.C. 2010). The ALJ is to consider (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) the plaintiff's age, education, and work history. Blackmon, 719 F.Supp.2d at 88-89. The claimant bears the burden of proof with respect to the first four steps of the analysis, but 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, 359 U.S.App.D.C. 267 (D.C. Cir. 2004).

Plaintiff's application for a period of disability and disability insurance was denied both initially and upon reconsideration. A.R. 19. Plaintiff then requested a hearing before an ALJ. Id. That hearing was held on August 21, 2009. Id. at 19, 33-69. In a decision dated February 24, 2010, the ALJ, applying the five-step analysis, determined that Plaintiff was not disabled within the meaning of the Act and denied the requested benefits. See generally id. at 16-30.

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since August 31, 2005, the alleged onset date and also his date of retirement from the USAF. The ALJ noted that Plaintiff was attending college which was paid for by the U.S. Department of Veterans Affairs (" VA" ). Id. at 21. At step two, the ALJ found that Plaintiff had the following severe impairments: back disorder, left foot drop, and affective disorder. Id.

Step three of this analysis requires the ALJ to compare the claimant's impairments to the Social Security Administration's Listing of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant's impairments meet or are medically equal to a listed impairment, the ALJ will find the claimant is disabled. Id. The ALJ compared the Plaintiff's orthopedic impairments to Listing 1.04, and found that Plaintiff's impairments did not meet the criteria because there was no evidence of persistent motor, sensory, or reflex loss, of sitting and supine straight leg raising or of inability to ambulate effectively. A.R. 22. The ALJ also found that Plaintiff's impairments did not meet the criteria of Listing 1.02, pertaining to major dysfunction of a joint, because there was no evidence of an inability to perform fine or gross movements effectively. Id. Next, the ALJ found that Plaintiff's mental impairments did not meet or medically equal the criteria of Listing 12.04, because Plaintiff's mental impairment did not cause at least two " marked" limitations or one " marked" limitation and " repeated" episodes of decompensation, each of an extended duration was required under " Paragraph B." Id. Similarly, the ALJ found that the " Paragraph C" criteria were not satisfied. Id.

The ALJ next proceeded to determine the Plaintiff's " residual functional capacity" before moving to step four as required because Plaintiff's impairment did not meet or equal a listed impairment. 20 C.F.R. § 404.1520(e). As the ALJ explained, " [a]n individual's residual functional capacity is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments." A.R. 20-21. The ALJ must make this determination based on all the relevant medical and other evidence in the case record. 20 C.F.R. § 404.1545(a)(1). Ultimately, the ALJ found that Plaintiff had the residual functional capacity to perform light work except with no reaching overhead with the right dominant upper extremity and limited to simple routine low stress jobs. A.R. 22. In reaching this determination, the ALJ summarized Plaintiff's testimony during the hearing and the opinion evidence presented as part of the record. Id. at 23-26. Specifically, the ALJ considered the evidence related to: Plaintiff's multiple orthopedic injuries; cervical, lumbar and lower extremity pain; GERD and hypertension diagnoses; asthma; and mental distress, including his diagnosis of major depressive disorder secondary to his physical condition as well as the results of the psychiatric consultative examination that Plaintiff underwent at the request of the Social Security Administration. Id. at 24-25. The ALJ concluded that Plaintiff's " medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Id. at 26. The ALJ found that Plaintiff's physical impairments were not of a severity that would prevent all work activity. Id.

Turning to step four, the ALJ must consider the claimant's " residual functional capacity" and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). With respect to Plaintiff, the ALJ found that Plaintiff could not perform his past relevant work as a carpenter, housing supervisor, or planner because he was limited to simple, routine, low stress jobs. A.R. 27.

Finally, step five requires the ALJ to " determine[] whether there is any other gainful work in the national economy that the claimant could perform notwithstanding his disability." Blackmon, 719 F.Supp.2d at 83; see 20 C.F.R. § 404.1520(a)(4)(v). The ALJ considered the testimony of the Vocational Expert (" VE" ), which he deemed credible, who opined that given all the relevant factors, that Plaintiff would be able to perform the requirements of occupations such as a ticket seller (6,000 jobs regionally and 200,000 jobs nationally), hand packager (5,000 jobs regionally and 469,203 nationally), and assembler of small products (5,000 jobs regionally and 500,000 nationally). A.R. 27-28. The VE also opined that Plaintiff could perform sedentary jobs such as an addresser (1,800 jobs regionally and 100,000 nationally), pari-mutuel ticket checker (6,000 jobs regionally and 86,000 jobs nationally), and a sorter (2,000 jobs regionally and 10,136 jobs nationally). Id. at 27-28. Ultimately, the ALJ found that Plaintiff was " not disabled" under the Social Security Act from August 31, 2005 through the date of the decision, February 24, 2010, because, considering Plaintiff's age, education, work experience, and residual functional capacity, Plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Id. at 28. Accordingly, Plaintiff's request for Disability Insurance Benefits was denied because the ALJ found that Plaintiff was not disabled within the meaning of the Act.

The Plaintiff sought review of the ALJ's decision by the Appeals Council. Id. at 13. The Appeals Council " found no reason under [its] rules to review the Administrative Law Judge's decision," meaning the ALJ's decision constitutes the Commissioner's final decision regarding Plaintiff's claim. Id. at 2. Having fully exhausted his administrative remedies, Plaintiff timely filed suit in this Court.[5]


" In a disability proceeding, the ALJ 'has the power and the duty to investigate fully all matters in issue, and to develop the comprehensive record required for a fair determination of disability.'" Butler v. Barnhart, 353 F.3d 992, 999, 359 U.S.App.D.C. 267 (D.C. Cir. 2004) (quoting Simms v. Sullivan, 877 F.2d 1047, 1050, 278 U.S.App.D.C. 259 (D.C. Cir. 1989)). A court will not disturb the determination of the Commissioner if it is based on substantial evidence in the record and the correct application of the relevant legal standards. 42 U.S.C. § § 405(g), 1383(c); Butler, 353 F.3d at 999. Substantial evidence means " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). " The test requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence." Butler, 353 F.3d at 999 (citation omitted).

In reviewing an administrative decision, a court may not determine the weight of the evidence nor substitute its judgment for that of the Commissioner if her decision is based on substantial evidence. Butler, 353 F.3d at 999; Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). " Because the broad purposes of the Social Security Act require a liberal construction in favor of disability, the court must view the evidence in the light most favorable to the claimant." Martin v. Apfel, 118 F.Supp.2d 9, 13 (D.D.C. 2000). " The reviewing court must also determine whether credible evidence was properly considered." Id. A reviewing court should not be left guessing as to how the ALJ evaluated probative material, and it is reversible error for an ALJ to fail in his written decision to explain sufficiently the weight he has given to certain probative items of evidence. Id.


On February 24, 2010, the ALJ determined that Plaintiff was not disabled within the meaning of the Act and denied his request for benefits. See generally A.R. 16-30. The ALJ determined that Plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Plaintiff argues that the ALJ failed to base his decision on an adequate record because the evidence did not include medical records dating back to the inception of his injuries. Plaintiff further argues that record supports a finding that he is disabled by raising specific objections to two pieces of evidence and pointing to evidence in the record that Plaintiff asserts is contrary to the ALJ's determination. The Court shall first address the adequacy of the record. Next, the Court shall address ...

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