United States District Court, District of Columbia
MEMORANDUM OPINION ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE
KETANJI BROWN JACKSON, District Judge.
Plaintiff Regina Meriwether ("Plaintiff") alleges that she suffers from multiple impairments that have prevented her from engaging relevant work or in any other substantial gainful activity. (Compl., ECF No. 1, ¶ 5.) She filed applications for Social Security Disability Insurance Benefits and/or Supplemental Security Income Benefits, which the Commissioner of the Social Security Administration ("SSA") denied. (Id. ¶ 4.) Plaintiff requested that the SSA reconsider this decision, which it declined to do. (Id. ) Then, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and following the hearing, the ALJ issued a written opinion denying her request for benefits. (Id. ) Plaintiff persisted, requesting that the Appeals Council review the ALJ's decision, and on November 16, 2011, the Appeals Counsel denied her request for review. Having fully exhausted her administrative remedies, Plaintiff filed the instant action on January 17, 2012.
On May 30, 2012, Plaintiff filed a motion for judgment of reversal in which she argues that the Court should reverse the ALJ's decision because it is unsupported by substantial evidence and erroneous as a matter of law. In the alternative, Plaintiff requests remand to the SSA for a new administrative hearing. (Mot. for J. of Reversal, ECF No. 6, at 1.) On July 10, 2012, Defendant Commissioner of the SSA filed a motion for judgment of affirmance, which argues that this Court should affirm the ALJ's conclusion that Plaintiff is not entitled to Social Security benefits because the ALJ properly applied that law and substantial evidence supports his decision. (Mot. for J. of Affirmance, ECF No. 7, at 1.) On April 4, 2013, the matter was transferred to this Court's docket, and on June 7, 2013, this Court referred it to a Magistrate Judge for full case management. (Minute Order of June 7, 2013.)
Before this Court at present is the Report and Recommendation (ECF No. 11) that the assigned Magistrate Judge, Alan Kay, has filed regarding Plaintiff's motion for reversal and Defendant's motion for judgment of affirmance. The Report and Recommendation reflects Magistrate Judge Kay's opinions that while a shortfall in the record of one month of medical history prior to the onset of Plaintiff's alleged disability did not prejudice Plaintiff and that the ALJ did not err in failing to obtain a consultative examination, the record before the ALJ contained other evidentiary gaps that prejudiced Plaintiff and the ALJ improperly failed to explain the weight he gave to record evidence regarding Plaintiff's concentration abilities. (Id. at 28-27.) As a result, Magistrate Judge Kay recommends that both motions should be granted in part, and denied in part, and that this Court should remand the matter to the SSA, pursuant to 42 U.S.C. § 405(g), for further proceedings consistent with the Report and Recommendation. (Id. at 27-28.)
The Report and Recommendation also advises the parties that either party may file written objections to the Report and Recommendation, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (Id. at 28.) The Report and Recommendation further advises the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (Id. )
Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. LCvR 72.3(b). As of this date-several months after the Report and Recommendation was issued-no objections have been filed.
This Court has reviewed Magistrate Judge Kay's report and agrees with its conclusions. Thus, the Court will ADOPT the Report and Recommendation in its entirety. Accordingly, Plaintiff's Motion for Reversal will be GRANTED IN PART AND DENIED IN PART; Defendant's Motion for Judgment of Affirmance will be GRANTED IN PART AND DENIED IN PART, and this matter will be REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner of the Social Security Administration for further proceedings consistent with Magistrate Judge Kay's Report and Recommendation.
A separate Order accompanies this Memorandum Opinion.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
REPORT AND RECOMMENDATION
This case was referred to the undersigned for full case management, including a Report and Recommendation pursuant to Local Rule 72.3. (June 7, 2013 Order of Referral .) Pending before the undersigned are Plaintiff's Motion for Reversal of Judgment ("Pl.'s Mot. to Reverse")  and Memorandum in support thereof ("Pl.'s Mem.") [6-1] and Defendant's Motion for Judgment of Affirmance ("Def.'s Mot. to Affirm")  and Memorandum in support thereof ("Def.'s Mem.) [7-1]. Plaintiff Regina Meriwether ("Ms. Meriwether") has exhausted her administrative remedies. She now moves for a reversal of the October 28, 2010 decision of the Administrative Law Judge ("ALJ") denying her supplemental security income ("SSI") benefits on the grounds that the ALJ both failed to develop the administrative record fully and erroneously assessed her residual functional capacity. (Pl.'s Mem. at 4-8.) Alternatively, Ms. Meriwether moves to have the matter remanded to the Social Security Administration (SSA) for a new administrative hearing. See 42 U.S.C. § 405(g.) Defendant Michael J. Astrue, Commissioner of the SSA, moves to affirm the ALJ's decision on the grounds that it is supported by substantial evidence, that the ALJ sufficiently developed the administrative record, and that the ALJ properly evaluated Ms. Meriwether's residual functional capacity. (Def.'s Mem. at 9-12.)
On the date of her supplemental security income ("SSI") application, Ms. Meriwether was a forty-one year old female who lived in Washington, DC. (AR 28.) Ms. Meriwether spoke English and graduated from high school. (AR 40, 113.) Her past employment included work as a file clerk and cashier at an automobile dealership and as a cashier at a liquor store. (AR 109, 123-30, 168.) She has not worked or earned any income since 2004. (AR 41, 90, 92.) The ALJ found that she had not engaged in substantial employment since October 27, 2008, the date of her application. (AR 20, 28, 41.) Ms. Meriwether has a diagnosis of bipolar disorder, schizophrenia, and substance abuse disorder. (AR 23.) Ms. Meriwether acknowledged that her substance abuse continued for many years, although she testified at her administrative hearing that she had been sober since at least March 11, 2010. (AR 48, 59.) Finally, Ms. Meriwether has Hepatitis B. (AR 23, 45-46.) Meriwether applied for SSI benefits on October 27, 2008, alleging in her amended complaint that she was disabled and stopped working on that same date. (AR 18, 83.)
The SSA issued its initial denial of SSI benefits on February 12, 2009, and again upon reconsideration on May 20, 2009. (AR 18, 63, 67.) Meriwether filed a written request for a hearing on June 22, 2009 pursuant to 20 C.F.R. 416.1429 et seq. (AR 18.) Meriwether appeared and testified on September 27, 2010 at a hearing before an ALJ. (AR 18.) She did not have representation at this hearing. A vocational expert did testify. (AR 18, 35-60.) On October 28, 2010, the ALJ issued his Decision finding that while Ms. Meriwether's bipolar disorder, schizophrenia, and substance abuse disorder were severe impairments, she nevertheless was not disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(A) (AR 18-30.) The SSA Commissioner adopted the ALJ decision on November 16, 2011, when the Appeals Council denied Ms. Meriwether's request for review. (AR 1-5.) Ms. Meriwether subsequently filed this action, pursuant to 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
District courts review final decisions of the Social Security Commissioner pursuant to Section 205(g) of the Social Security Act. 42 U.S.C. §405(g) provides for a review of the administrative proceedings record to determine whether there is substantial evidence in the record to support the Commissioner's findings. Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004); Smith v. Bowen, 826 F.2d 1120 (D.C. Cir. 1987). "The court must uphold the [Commissioner's] determination if it is supported by substantial evidence and is not tainted by an error of law." Smith, 826 F.2d at 1121 (citation omitted). "Substantial evidence" under the Social Security Act "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]" Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). It is "more than a scintilla, but... something less than a preponderance of the evidence." Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010) (citation omitted).
The reviewing court must carefully scrutinize the "entire record to determine whether the Commissioner, acting through the [ALJ], has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits." Lane-Rauth v. Barnhart, 437 F.Supp.2d 63, 65 (D.D.C. 2006) (quoting Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004)) (internal quotation marks omitted). See also Martin v Apfel, 118 F.Supp.2d 9, 13 (D.D.C. 2000) (citations omitted) (The ALJ must "explain sufficiently the weight he has given to certain probative items of evidence" so that the reviewing court is not "left guessing as to how the ALJ evaluated probative evidence.").
In Brown v. Bowen, the court stated the following:
Our review in substantial-evidence cases calls for careful scrutiny of the entire record.
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The judiciary can scarcely perform its assigned review function, limited though it is, without some indication not only of what evidence was credited, but also whether other evidence was rejected rather than simply ignored.
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The ALJ is certainly entitled to weigh conflicting opinions and to make his own assessment of their credibility. We merely hold that determination must be made within and according to governing regulations.
794 F.2d at 705-09 (citations omitted). See also Martin, 118 F.Supp.2d at 13 (citations omitted) (While the ALJ makes findings of fact and resolves conflicts in the evidence, "[the] ALJ cannot merely disregard evidence which does not support his conclusion.").
"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." Davis v. Shalala, 862 F.Supp.1, 4 (D.D.C. 1994) (citation omitted.) If the court determines however that the Commissioner's findings are supported by substantial evidence and in accordance with applicable law, they must be treated as conclusive and affirmed. 42 U.S.C. §405(g); Butler, 353 F.3d at 999.
III. DETERMINATION OF DISABILITY
Under the Social Security Act, a disability is defined 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.
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An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(1), (2)(A). A physical or mental impairment is defined as an impairment that results from "anatomical, physiological and psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3.)
Evaluation of a claim of disability involves an assessment of the following five steps: 1) whether the individual is working; 2) whether the individual has a "severe" impairment; 3) whether the impairment meets or equals a listed impairment contained in Subpart P to Appendix 1 to 20 C.F.R., part 404; 4) whether the claimant can return to his past relevant work; and if not, 5) whether the claimant can perform any other work that exists in significant numbers in the national economy. See 20 C.F.R. § 416.920.
IV. ANALYSIS OF THE ALJ's OCTOBER 28, 2010, DECISION
The issue before the Court is not whether Ms. Meriwether is disabled but whether the ALJ's decision is supported by substantial evidence in the record and the ALJ correctly applied the law in reaching his decision. Ms. Meriwether challenged the ALJ's October 28, 2010, decision on the grounds that the ALJ failed to fully develop the administrative record and that the ALJ erroneously assessed Ms. Meriwether's residual functional capacity. (Pl.'s Mem. at 4, 8.) Pretermitting Ms. Meriwether's challenges, the undersigned will briefly review the ALJ's determination regarding disability.
A. Five Steps to Determine Disability
In his October 28, 2010, Decision, the ALJ considered the five steps for determining disability, as summarized below.
1. Step 1
The ALJ found that Ms. Meriwether had not engaged in substantial gainful activity since October 27, 2008, the application date. (AR 20.)
2. Step 2
The ALJ found that Ms. Meriwether had the following severe impairments: bipolar disorder, schizophrenia, and substance abuse disorder, and, further, that Meriwether's Hepatitis was not disabling, as it is stable with medication. (AR 20-23.) The ALJ did, however, take into account the secondary symptoms of Hepatitis, such as pain and fatigue, when assessing Meriwether's Residual Functional Capacity ("RFC"). (AR 23.)
3. Step 3
The ALJ found that Ms. Meriwether did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Par 404, Subpart P, Appendix 1. (AR 26-27.)
4. Residual Functional Capacity
After denying Step 3 and before considering Step 4, the ALJ had to determine Ms. Meriwether's RFC, which is determined on the relevant evidence in the record and defined as "the most [an individual] can do despite [her] limitations." 20 C.F.R. § 416.945(a.) The ALJ found that Ms. Meriwether had a residual functional capacity to perform medium work. (AR 27.) This involves the ability to lift up to 50 pounds occasionally and 25 pounds frequently, and the ability to stand or walk up to eight hours in an eight-hour day. 20 C.F.R. § 416.967(c.) Meriwether can "occasionally climb stairs and ramps, balance, stoop, and kneel." (AR 27.)
The ALJ determined that Ms. Meriwether had numerous limitations, finding that she "cannot climb ladders, ropes or scaffolds, be exposed to hazardous heights or hazardous moving machinery, or be exposed to extreme temperature changes" as a precautionary measure because of her past substance abuse and current bipolar and schizophrenia diagnoses. (AR 27.) Meriwether also cannot crawl, can only perform low stress work, requiring no more than moderate attention, concentration, persistence, and pace. (AR 27.) She must avoid excessive vibration, humidity, or wetness. (AR 27.)
The ALJ found moderate limitations when it came to time, place, and manner of her work, including
[C]ompleting a normal workday or workweek without interruptions from psychological limitations... accepting instructions and responding appropriately to criticism from supervisors... interacting and getting along with co-workers and peers... [and] she should have no regular direct immediate contact with the general public.