United States District Court, District of Columbia
MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Paulette Jackson brings this action under 42 U.S.C. §
405(g) seeking reversal of the final decision of the Acting
Commissioner of Social Security denying her claim for
benefits. The matter is before the Court on Jackson's
motion for judgment of reversal and the Commissioner's
motion for judgment of affirmance. Adopting the Report and
Recommendation of Magistrate Judge G. Michael Harvey, the
Court will deny Jackson's motion and grant the
Jackson applied for disability insurance and supplemental
security income in March 2011. Dkt. 7-5 at 2-14 (A.R.
221-33). She claimed that she was disabled due to
osteoporosis, a bleeding ulcer, and pain in her lower back,
left hip, and pelvis. Dkt. 7-6 at 7 (A.R. 280). The
administrative law judge (“ALJ”) denied her
application for benefits in May 2013 on the grounds that she
did not qualify as disabled. Dkt. 7-3 at 46-52 (A.R. 114-20).
Jackson successfully appealed that decision to the Appeals
Council of the Social Security Administration's Office of
Disability Adjudication and Review. Dkt. 7-6 at 76-78 (A.R.
349- 51). The Appeals Council agreed with Jackson that the
ALJ erred by failing to address the opinions of Jackson's
primary care provider, Dr. Amy Kossoff, and her previous
primary care provider, Dr. Anju Menon, and, on that basis,
remanded the matter to the ALJ. Dkt. 7-3 at 58-61 (A.R.
remand, the ALJ again concluded that Jackson was not disabled
within the meaning of the Social Security Act. Dkt. 7-2 at
20-28 (A.R. 19-27). Although he found that Jackson's
lumbar degenerative disc disease and radiculopathy qualified
as severe impairments, the ALJ determined that neither
condition met or medically equaled a listed impairment.
Id. at 23-25 (A.R. 22-24). He also found that
Jackson had the capacity to perform light work, such as her
past work as an administrative assistant. Id. at
25-28 (A.R. 24-27). As directed by the Appeals Council, the
ALJ considered the opinions of Jackson's primary care
providers, but he concluded that they did not support
Jackson's claim. First, he concluded that Dr.
Kossoff's opinion carried little weight:
Amy Kossoff, M.D., a primary care provider of the claimant,
opined that the claimant is in too much pain to concentrate
on even simple tasks or [to] get through an eight-hour
workday. . . . [But Jackson's] representative did not
submit any of her treatment records to bolster such opinions.
Such opinions are overly drastic in light of the
claimant's conservative treatment of record, mild
objective findings, mild diagnostic findings, and lack of
interest in further treatment modalities.
Id. at 27 (A.R. 26). Second, the ALJ also declined
to accord significant weight to Dr. Menon's opinion:
Anju Menon, M.D., the claimant's previous primary care
physician, . . . opined moderate limitations with activities
of daily living and episodes of decompensation, no
limitations with social functioning and concentration,
persistence, and pace, and that the claimant cannot work for
a year. . . . [But] [t]here is no evidence of anything in the
record similar to an extended episode of decompensation.
Primary care records noting that the claimant is independent
in her activities of daily living do not support moderate
problems. The claimant's mild diagnostic findings, few
objective findings, and her conservative treatment do not
support such significant symptoms.
Id. (citations omitted). This time around, the
Appeals Council denied review, rendering the ALJ's
decision the Commissioner's final decision. Id.
at 2-4 (A.R. 1-3).
exhausted her administrative remedies, Jackson filed this
action in October 2016 asking that the Court reverse the
ALJ's unfavorable decision and grant her application for
benefits. Dkt. 1 (Compl.). She subsequently moved for
judgment of reversal. Dkt. 8. In that motion, she first
argues that the ALJ failed to follow regulations governing
the consideration of the opinions of treating physicians and
further argues that the ALJ's “irrational
handling” of the case resulted in a denial of due
process. Id. at 1-2. The Commissioner, in turn,
opposed Jackson's motion and moved for judgment of
affirmance. Dkts. 9, 10. The Commissioner asserts that the
ALJ's decision was supported by substantial evidence and
that the ALJ correctly applied the relevant legal standards
in rendering that decision. Dkt. 9 at 3. In January 2017, the
Court referred the matter to a Magistrate Judge for full case
management. Min. Order of Jan. 24, 2017. Magistrate Judge G.
Michael Harvey's Report and Recommendation is now before
the Court. Dkt. 15.
comprehensively reviewing the administrative record,
Magistrate Judge Harvey has recommended that the Court deny
Jackson's motion and grant the Commissioner's.
Id. at 1. He concludes that the ALJ properly weighed
the opinions of Drs. Kossoff and Menon: “The ALJ
explained his reasons for giving less weigh[t] to their
opinions, and the reasons given were legitimate and supported
by substantial evidence found in the record.”
Id. at 19. With respect to Jackson's due process
challenge, Magistrate Judge Harvey notes that
“[a]lthough it is not entirely clear which actions of
the ALJ the Plaintiff claims denied her a fair hearing, the
undersigned can find nothing in the record that would support
such a claim.” Id. at 24.
Report and Recommendation advised the parties of their right
to file objections within fourteen days of receiving the
report. Id. at 25; see also Local Rule
72.3(b). The parties were further notified that failing to
file timely objections could result in waiver of their right
to appeal the Court's adoption of the Report and
Recommendation. Id. at 25-26. No objections were
filed by the deadline or by the date of this opinion.
Court has reviewed the parties' briefs, the
administrative record, and Magistrate Judge Harvey's
Report and Recommendation, and it agrees with Magistrate
Judge Harvey's thorough analysis and conclusions. In
particular, the Court agrees that the ALJ's decision to
accord little weight to the opinions of Jackson's
treating physicians was supported by substantial evidence and
comported with the relevant regulations and case law. The
Court further agrees that the ALJ's handling of
Jackson's claim did not result in a denial of due
these reasons, and in the absence of any timely-filed
objections, the Court will ADOPT Magistrate Judge
Harvey's Report and Recommendation in their entirety.
Accordingly, Jackson's Motion for Judgment of Reversal,
Dkt. 8, will be DENIED, and the Commissioner's Motion for
Judgment of Affirmance, Dkt. 9, will be GRANTED. A separate
Order accompanies this Memorandum Opinion.
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
matter was referred to the undersigned for full case
management. In this action, Paulette Jackson
(“Plaintiff”) seeks a reversal of the decision of
the Commissioner of the Social Security Administration
(“Defendant” or “SSA”) denying her
disability and supplemental security benefits under the
Social Security Act, 42 U.S.C. § 405(g).
the undersigned are Plaintiff's motion for judgment of
reversal and Defendant's motion for judgment of
affirmance. Plaintiff alleges that the Administrative Law
Judge (“ALJ”) erred in failing to accord
significant weight to the opinions of her treating
physicians. She further alleges that the ALJ did not provide
her with a full and fair hearing because of what she terms
his “erratic” behavior and
“irrational” handling of the case. The
undersigned finds neither contention correct. Therefore,
based upon review of the entire record herein,  the undersigned
recommends that Defendant's motion be granted and
Plaintiff's motion be denied.
eligible for disability benefits under the Social Security
Act, a claimant must be found to be “disabled” by
the Social Security Administration. 42 U.S.C. § 423(a).
In most cases, to determine whether a claimant is disabled
within the meaning of the Act, an ALJ gathers evidence, holds
a hearing, takes testimony, and performs a five-step legal
evaluation of the claim using that evidence. 20 C.F.R. §
404.1520. Specifically, the ALJ must determine whether: (1)
the claimant is “presently engaged in substantial
gainful activity”; (2) the claimant has a
“medically severe impairment”; (3) the
claimant's impairment is equivalent to one of the
impairments listed in the appendix of the relevant disability
regulation; (4) the impairment prevents the claimant from
performing her past relevant work; and (5) the claimant, in
light of her age, education, work experience, and residual
functional capacity (“RFC”), can still perform
another job available in the national economy. Id. A
claimant's RFC is an assessment of the most she is able
to do notwithstanding her physical and mental limitations.
See Butler v. Barnhart, 353 F.3d 992, 1000 (D.C.
claimant bears the burden of proof at the first four steps of
the evaluation. Callahan v. Astrue, 786 F.Supp.2d
87, 89 (D.D.C. 2011). At step five, however, the burden
shifts to the Commissioner to identify specific jobs
available in the national economy that the claimant can
perform. Id. In making this determination, an ALJ
may call a vocational expert (“VE”) to testify as
to whether a claimant can perform other work that exists in
the national economy. Id. at 90. A VE may draw his
conclusions from a number of sources, including the
Dictionary of Occupational Titles (“DOT”).
Id. The DOT, last published by the U.S. Department
of Labor in 1991, provides a brief description of occupations
within the national economy and lists the capabilities that
each occupation requires of a worker. See generally
DOT (1991 ed.). Along with VE testimony, the ALJ generally
relies on the DOT to determine if there are jobs in the
national economy that a claimant can perform, given her RFC.
See 20 C.F.R. § 416.966-416.969. Based on this
analysis, if there are no such jobs, the claimant is deemed
disabled; if there are, she is deemed not disabled.
Plaintiff Paulette Jackson
was fifty-nine years old at the time of the ALJ's
decision. AR 39. She is a high school graduate and has
completed one semester of college. Id. She has
worked as a secretary for the federal government for
twenty-nine years, ending in April 2007. Id. at 39,
223, 228. Her work record was sufficient to maintain her
disability insurance coverage through December 31, 2012.
Id. at 20, 114.
Plaintiff's Application for Disability Benefits
applied for disability insurance and supplemental security
income benefits in March 2011. AR 221-33. She claimed that
she had been disabled since May 1, 2010. Id. at 221.
She complained of osteoporosis; a bleeding ulcer; and pain in
her lower back, left hip, and pelvis. Id. at 280.
Her applications were denied in June and July 2011.
Id. at 130-32, 136-39. In November of that year, her
applications were again denied following her request for
reconsideration. Id. at 89-108.
January 2012, Plaintiff requested a hearing before an ALJ,
id. at 150, which was held on May 22, 2013,
id. at 114. The ALJ issued his decision denying her
application in May 2013, wherein he found that Plaintiff
retained the capacity to perform the full range of sedentary
work, including her past relevant work as a government clerk.
Id. at 117, 119. In June 2013, Plaintiff requested
that the ALJ reopen his decision because it failed to mention
or discuss the opinions of her two treating physicians, Dr.
Amy Kossoff and Dr. Anju Menon. Id. at 349-51. The
ALJ denied her motion. Id. at 195. In June 2013,
Plaintiff requested review by the Appeals Council of the
ALJ's decision on the basis of his failure to consider
these opinions. Id. at 190-96. The Appeals Council
agreed and remanded the case to the ALJ for further
proceedings in July 2014. Id. at 126-29.
remand, the ALJ held a second hearing on May 6, 2015.
Id. at 34-51. Prior to this hearing, Plaintiff moved
to amend her alleged onset date to March 11, 2011; the motion
was granted. Id. at 19. On July 21, 2015, the ALJ
issued a second decision, this time finding Plaintiff capable
of light work, subject to a variety of restrictions.
Id. at 24. As this second assessment was less
restrictive than the first, the ALJ again found Plaintiff
capable of performing her past relevant work. Id. at
27. Plaintiff requested reconsideration by the Appeals
Council arguing that the ALJ again accorded incorrect weight
to the opinions of her two treating physicians. Id.
at 12. The request was denied by the Appeals Council in
August 2016. Id. at 1-6. The ALJ's July 21, 2015
decision thus became the Commissioner's final decision.
Id. at 1. 3.The Administrative Record In
reaching his final decision, the ALJ evaluated
Plaintiff's condition based on the evidence in the
administrative record, which includes Plaintiff's medical
records, and testimony from Plaintiff and a VE. The portions
of the administrative record relevant to Plaintiff's
appeal to this Court are summarized below. Since Plaintiff
challenges the ALJ's assessment of the opinions of her
two treating physicians, Drs. Menon and Kossoff, the summary
will focus on the record with respect to them.
Unity Health Care
record documents Plaintiff's primary care treatment at
Minnesota Avenue Health Center, part of Unity Health Care,
over the period between October 2009 and September 2011.
See AR 809, 828. Excluding visits related
exclusively to securing various forms of financial
assistance, the record reflects three visits in 2009, fifteen
in 2010 and fifteen in 2011. Anju Menon, M.D. examined
Plaintiff fourteen times between September 2010 and September
2011. Id. at 539- 41, 636-37, 639-40, 643-45,
649-50, 651-52, 653-55, 658-59, 660-61, 662-63, 718-19, 828,
829, 833-34. While there is no explicit statement in these
medical records that Dr. Menon had been designated as
Plaintiff's primary care physician, this seems to have
been the case by late 2010. Of Plaintiff's fourteen
visits to Dr. Menon, seven came after her amended alleged
onset date of March 11, 2011. See Id. at 636-37,
639-40, 643-45, 718-19, 828, 829, 833-34.
February 2010, Plaintiff saw Dr. Kamdar for the first time.
Id. at 790. She reported that her back pain had
become “worse” after shoveling snow, but that she
had not seen a pain management specialist in nearly three
years. Id. She requested Tylenol 4,
was prescribed Flexeril. Id. In May 2010, Plaintiff
told Dr. Kamdar that she needed an MRI of her back for an
upcoming appointment with her pain management specialist.
Id. at 561. Notes from that visit further indicate
that Plaintiff was given a refill of Percocet,  but it was not
listed as a current medication. Id. at 561-62. The
record does not indicate when the initial prescription was
written, nor by whom. Nearly all of Plaintiff's
subsequent treatment notes indicate refills for Percocet.
of Plaintiff's lumbosacral spine was performed in June
2010. It showed mild ligament hypertrophy and facet
prominence at each vertebral juncture between L3 and S1.
Id. at 397. At ¶ 5-S1, there was mild disc
bulging and bilateral neural foramina narrowing. Id.
There was no significant canal stenosis. Id.
returned to see Dr. Kamdar later that month. Notes from that
visit indicate that Plaintiff had signed a “pain
contract.” Id. at 558. There is no indication
in the record of its contents or the impetus for asking
Plaintiff to sign it. Dr. Kamdar did note, however, that
I told [patient] that I did not feel comfortable prescribing
more than 30 [P]ercocet a month given her lumbar [MRI]
findings. I told [patient] she may want to consider changing
to another [primary care physician] if she does not feel I am
adequately controlling her pain. . . . The [patient]
responded that she already changed her [primary care
physician] to me this year and does not want to change again.
Id. at 559.
2010, Dr. Kamdar noted that Plaintiff had refused
injections to control her back pain, and preferred to
continue taking Percocet. Id. at 549. Plaintiff
specifically requested “brand-name” Percocet, as
she had experienced constipation while taking what was
presumably a generic form of the drug. Id.
September 2010, Plaintiff saw Dr. Menon for the first time.
Id. at 539. Dr. Menon reported that Plaintiff
provided a poor account of her medical history, but that
Plaintiff would bring ...