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Jackson v. Berryhill

United States District Court, District of Columbia

August 2, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Plaintiff 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 Commissioner's motion.

         Paulette Jackson applied for disability insurance and supplemental security income in March 2011. Dkt. 7-5 at 2-14 (A.R. 221-33).[2] 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. 126-29).

         On 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).

         Having 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.[3] Dkt. 15.

         After 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.

         The 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.

         The 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 process.

         For 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.

         June 27, 2017



         This 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).

         Before 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, [1] the undersigned recommends that Defendant's motion be granted and Plaintiff's motion be denied.


         A. Legal Framework

         To be 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. Cir. 2004).

         The 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.

         B. Factual Background

         1. Plaintiff Paulette Jackson

         Plaintiff 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.

         2. Plaintiff's Application for Disability Benefits

         Plaintiff 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.

         In 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.

         Following 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.

         a. Unity Health Care

         The 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.

         In 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.[2] Id. She requested Tylenol 4, [3] but was prescribed Flexeril.[4] 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, [5] 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.

         An MRI 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.

         Plaintiff 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.

         In July 2010, Dr. Kamdar noted that Plaintiff had refused injections[6] 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.

         In 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 ...

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