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Davis v. Berryhill

United States District Court, District of Columbia

August 7, 2017

LAVON T. DAVIS Plaintiff,
NANCY A. BERRYHILL, in her official capacity as Acting Commissioner of Social Security Defendant.



         Plaintiff Lavon T. Davis (“Plaintiff”) brought this action on September 1, 2016, seeking to reverse the final decision of the Commissioner of Social Security, Defendant Nancy A. Berryhill (“Defendant” or “Commissioner”), denying her application for supplemental security income benefits under Title XVI of the Social Security Act. See Compl. [Dkt. 1]. Presently ripe for resolution are two motions: (1) Plaintiff's motion for reversal; and (2) Defendant's motion for affirmance of the Commissioner's decision denying Plaintiff's application for benefits. Upon consideration of the parties' briefs and the entire record, [1] the Court will deny Plaintiff's motion and grant Defendant's motion. The Court's rationale follows.


         A. Legal Framework for Social Security Disability Claims

         To be eligible for disability benefits under the Social Security Act, a claimant must be found to be “disabled” by the Social Security Administration (“SSA”). 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 claimant using that evidence. 20 C.F.R. § 416.920.

         In that evaluation, the ALJ must determine whether: (1) the claimant is presently engaged in substantial gainful activity; (2) the claimant has a medically severe impairment or impairments; (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”), [2] can still perform another job that is available in the national economy. Id. The claimant bears the burden of proof in 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.

         When 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 or her 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 WL 645964. Along with VE testimony, the SSA generally relies on the DOT to determine if there are jobs in the national economy that a claimant can perform given her age, education, work experience, and 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. Relevant Facts

         1. Plaintiff Lavon Davis

         Plaintiff is a 25-year-old woman residing in Washington, D.C. She was born on December 12, 1991 and suffers from hydrocephalus, [3] requiring the placement of a shunt.[4] AR at 566, 618, 746, 766. In addition to hydrocephalus, Plaintiff has been diagnosed with borderline intellectual functioning[5] and affective disorder.[6] Id. at 522-23, 958. Despite these impairments, Plaintiff was able to obtain her high school diploma and complete a course in cosmetology, although she has not obtained her cosmetology license. Id. at 48, 106, 113.

         While Plaintiff attended a general education high school and was enrolled in regular classes, she received special education services in the form of assistance from an extra teacher and modified homework assignments. Id. at 45-46. Her Individualized Education Program (“IEP”)[7]from while Plaintiff was in high school indicates that when she was in the twelfth grade, she was performing at ¶ 6.3 grade level in basic math calculation and a 3.8 grade level in applied math problems, demonstrating “strength in solving basic addition, subtraction, and multiplication problems with both speed and accuracy.” Id. at 442. With regard to reading, Plaintiff “demonstrated strength in her ability to spell correctly higher level words, read and create sentences, and de-code words correctly, ” but needed additional support in reading fluency.[8] Id. at 443. Plaintiff's difficulty with reading fluency, which she performed at ¶ 1.6 grade level, reportedly impacted her reading comprehension. Id. Plaintiff's overall reading ability, however, was at ¶ 7.5 grade level. Id. Moreover, Plaintiff performed at ¶ 5.7 grade level in the category of written expression, demonstrating strength in writing short, simple sentences and generating sentences after given prompts. Id. at 444. Plaintiff performed at ¶ 4.4 grade level in grammatical writing, however, and struggled with identifying and using correct punctuation. Id. Lastly, Plaintiff's IEP indicates that her social-emotional functioning was adequate, that she expressed emotions appropriately, and that she used appropriate coping skills when dealing with stressors. Id. at 445.

         In addition to her borderline intellectual functioning, Plaintiff has been diagnosed with depression. Id. at 523, 958. Plaintiff saw a psychologist on a weekly basis in high school and has stated that she has difficulties handling stress and getting along with others. Id. at 60, 114-15, 445. Her mother also reported that Plaintiff exhibited depressive symptoms and was difficult to deal with emotionally, saying that she “lays around at home a lot.” Id. at 114. In 2010, when Plaintiff saw an evaluating psychologist, the doctor reported that Plaintiff “appeared tired, tense, depressed, sad, [and] reluctant, ” and noted that Plaintiff's “[a]ffect was flat.” Id. at 520. Another doctor reported that her depression is not severe because it does not have any significant impact on her daily functioning based on her lifestyle. Id. at 960.

         Plaintiff's employment history includes full-time employment in child care during the summers between 2006 and 2009, with part time employment during the school year. Id. at 49. Plaintiff reported that during on-the-job training, she was given instructions on how to complete tasks and did not have any difficulty following directions. Id. at 50-51. In 2010, Plaintiff had a summer job “cleaning up around the neighborhood, ” but struggled because it required that she be in the heat for prolonged periods of time. Id. at 52. From September 2013 to March 2014, Plaintiff worked full time at a daycare but was terminated from this position in what Plaintiff describes as a “he said, she said” dispute.[9] Id. at 97. In 2014, Plaintiff was working at another daycare five days a week from 5:00 PM to 10:30 PM. Id. at 95. The record suggests that Plaintiff may have had some difficulty preparing lesson plans and obtaining the proper credentials for this job. Id. at 466-68, 473. Plaintiff was terminated from her position as a teacher's aide at the daycare in May 2015 for allegedly abusing some of the children-an allegation that Plaintiff denies. Id. at 473. Presently, Plaintiff lives with her grandparents and enjoys spending time with friends, reading, and watching television. Id. at 59, 60, 363, 367.

         2. Plaintiff's Application for Disability Benefits and the ALJ's Decision

         On September 22, 2010, when Plaintiff was 18 years old, she applied for supplemental security income under the Social Security Act due to her hydrocephalus. Id. at 322-25, 358. Plaintiff alleges that her hydrocephalus diminished her intellectual capacity, and caused physical limitations and debilitating headaches. Pl. Mot. at 3. An ALJ issued a decision denying Plaintiff's claim on November 29, 2012, see AR 157-73, but the Social Security Appeals Council remanded the case on January 13, 2014, concluding that the ALJ's initial decision lacked a proper function-by-function analysis related to Plaintiff's mental limitations, did not clarify the degree of limitation in the RFC assessment, and did not contain an RFC that properly reflected the moderate mental limitations assessed by State agency consultants and other medical experts of record. Id. at 174- 77. On remand, a different ALJ denied Plaintiff's application on March 17, 2015. Id. at 14-37. Finding no error, the Appeals Council denied Plaintiff's request for review of this decision, making it the final decision of the Commissioner. Id. at 1-6.

         3. The Administrative Record

         In reaching her decision, the second ALJ evaluated Plaintiff's condition based on evidence in the administrative record, including various medical records and State agency consultative examinations, Plaintiff's own testimony, and a VE's testimony. The relevant portions of the administrative record pertaining to Plaintiff's physical and mental impairments are summarized below.

         a. Plaintiff's Medical History

         Soon after her birth, Plaintiff developed hydrocephalus and a Dandy-Walker malfor-mation.[10] Id. at 611. She underwent surgery for placement of two shunts in her brain in February 1992. Id. at 611-23. The shunts were replaced later that month due to complications, and Plaintiff had a catheter to the abdomen installed. Id. at 617-25. After the shunt was replaced, subsequent CT scans performed between 1996 and 2001 indicated no evidence of shunt failure, although occasionally Plaintiff reported intermittent headaches. Id. at 815, 831, 840, 854.

         After Plaintiff experienced three months of intermittent headaches in 2008, her neurosur-geon, Dr. Robert Keating, conducted a CT scan, which indicated that she needed a shunt replacement. Id. at 578, 597. Following the 2008 shunt replacement, Plaintiff reported that her headaches improved and occurred less frequently. Id. at 555. Subsequent CT scans have shown that Plaintiff's shunt is stable. Id. at 536, 551, 556. In January 2012 Plaintiff again reported headaches but did not complain of headaches in any subsequent examinations that year. Id. at 896, 899-909. A physician cleared Plaintiff for full participation in school, physical education, and sports in May 2012. Id. at 909. In 2013, Dr. Keating diagnosed Plaintiff with possible migraine headaches, as opposed to shunt-related headaches, which she treated with Tylenol. Id. at 977-79. Plaintiff was encouraged to get a follow-up eye exam and endocrine test to determine the cause of the headaches, but, as of the close of the record, she had not done so. Id. at 1001.

         b. Dr. Sambhu Banik, Ph.D. - Consultative Psychological Evaluation

         On November 26, 2010, Dr. Banik, a licensed psychologist, conducted a consultative evaluation of Plaintiff at the request of the Defendant's Disability Determination Division. Id. at 520- 21. Plaintiff reportedly appeared tired, tense, depressed, sad, and reluctant during her evaluation, but was nevertheless responsive and cooperative. Id. She was articulate, her speech was coherent and relevant, and her attention span was within normal limits. Id. Plaintiff's grandfather, who accompanied her to the evaluation, reported that she had trouble getting along with others, needed to be reminded to maintain her hygiene, and had to be “protected from fights.” Id. at 521. Plaintiff reported that she started her day at 6:45 AM and left home at 7:15 AM to take the metro to school. Id. She stated that she returned home from school at around 3:30 PM and that her grandmother picked her up from the metro, at which point she typically took a nap, watched TV, did her homework, and talked on the phone with her friends. Id. at 522. Plaintiff also reported that she could do many things independently, such as reading, writing, counting, using the phone, taking public transportation, managing money, cooking, cleaning, and washing. Id.

         Dr. Banik administered a WAIS-IV test, [11] which revealed that Plaintiff has a full scale intelligence score of 71, consistent with borderline intellectual functioning. Id. at 522-23. Dr. Banik also diagnosed Plaintiff with depressive disorder, learning disorder by history, and adjustment problems related to issues with parental drug and alcohol abuse. Id. at 523. Dr. Banik advised Plaintiff to seek psychiatric treatment and medication for her emotional problems. Id.

         c. Dr. Chitra Chari, M.D. - Consultative Physical Examination

         Dr. Chari, a neurologist, conducted an evaluation of Plaintiff on January 9, 2011. Id. at 524-26. Plaintiff reported that she had ninth grade reading and eighth grade math abilities. Id. at 524. She also reported that she could “do everything” that others can do, but that she worked slowly. Id. At the evaluation, she was unable to divide dollars by cents, but displayed full strength in all of her extremities, normal sensory perception, and stable and non-progressive neurological dysfunction. Id. at 525-26. Dr. Chari also observed that Plaintiff could walk quickly and without assistance. Id.

         d. Dr. Norman Kane, Ph.D. - State Agency Medical Consultant

         Dr. Kane, a psychologist, reviewed Plaintiff's record in February 2011. Id. at 138. Based on his review, Dr. Kane found that Plaintiff's medically determinable impairments include a disorder of the nervous system and affective disorder-i.e., depression. Id. Dr. Kane concluded that Plaintiff's affective disorder caused her mild restrictions in her activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. at 138. Dr. Kane also determined that she had no limitations with understanding, memory, concentration, or persistence, and a moderate limitation in her ability to interact with the general public. Id. at 140-41. In reaching this conclusion, Dr. Kane gave “[g]reat weight” to the opinions of Drs. Chari and Banik. Id. at 139.

         e. Dr. Esther Pinder, M.D. - State Agency Medical Consultant

         Dr. Pinder, a physician, reviewed Plaintiff's record in February 2011 and concluded that she is capable of performing a full range of light work. Id. at 139-40. Dr. Pinder's physical RFC analysis indicates that Plaintiff could occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, stand or walk for a total of six hours, and sit for a total of six hours. Id. at 140. Additionally, according to Dr. Pinder, Plaintiff had an unlimited capacity to push and pull. Id.

         f. Dr. Gemma Nachbahr, Ph.D. - State Agency Medical Consultant

         Dr. Nachbahr, a psychologist, reviewed Plaintiff's record in June 2011 and affirmed Dr. Kane's conclusion that her depression resulted only in mild restrictions in her activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Id. at 150. Dr. Nachbahr conducted a mental RFC assessment and found that Plaintiff was not significantly limited in her ability to remember locations and worklike procedures or in her ability to understand and remember short and simple instructions. Id. at 153. With respect to Plaintiff's ability to maintain attention and concentration for extended periods, Dr. Nachbahr found moderate limitations. Id. She found no limitations, however, in Plaintiff's ability to perform activities within a schedule, sustain an ordinary routine, work in coordination with others, or make simple work-related decisions. Id. at 154. Dr. Nachbahr opined that Plaintiff was moderately limited in her ability to respond appropriately to changes at work and to set realistic goals or make plans independently due to her borderline IQ, but found that she had no limitations in her ability to take precautions against normal hazards or travel in unfamiliar places and use public transportation. Id.

         g. Dr. Jacqueline McMorris, M.D. - State Agency Medical Consultant

         Dr. McMorris, a physician, reviewed Plaintiff's record in June 2011. She opined that Plaintiff could: occasionally lift, carry, or pull twenty pounds; frequently lift, carry, or pull ten pounds; work six hours a day; and sit with normal breaks for about six hours. Id. at 151. Posturally, Dr. McMorris found that Plaintiff could never climb ladders, ropes, or scaffolds, but had an unlimited ability to climb ramps and stairs, balance, stoop, kneel, or crouch. Id. at 152. Dr. McMorris further opined that Plaintiff must avoid heights and should avoid exposure to vibrations because of her shunt. Id. at 152-53. Lastly, Dr. McMorris concluded that Plaintiff must avoid “even moderate exposure” to hazards. Id. at 153. In reaching these conclusions, Dr. McMorris assigned “[g]reat weight” to the opinions of Drs. Chari and Banik.[12] Id. at 151.

         h. Dr. Hillel Raclaw, Ph.D. - State Agency Medical Consultant

         Dr. Raclaw, a psychologist, assessed Plaintiff's ability to perform work-related mental activities on June 25, 2012. Id. at 956-62. He found that Plaintiff had mild restrictions in her ability to understand, remember, and carry out simple instructions and her ability to make work-related decisions. Id. at 956. According to Dr. Raclaw, Plaintiff also had mild limitations in her ability to interact appropriately with the public and her supervisors and co-workers, and moderate limitations in her ability to respond appropriately to common work situations and changes in a routine work setting. Id. at 956-57.

         Dr. Raclaw concurred with Dr. Banik's depression diagnosis, but opined that Plaintiff's depression was non-severe because it had a minimal impact on her adaptive functioning and because she was not seeking mental health treatment and was able to modulate her emotions. Id. at 958. Dr. Raclaw also noted that Plaintiff is able to shop, handle money, and relate with others, despite her compromised intelligence. Id. In sum, according to Dr. Raclaw, Plaintiff's impairments are not disabling, particularly in light of the fact that she completed high school and pursued post-graduate work and because her activities of daily living were intact. Id. at 962.

         i. Plaintiff's Testimony

         During the first administrative hearing in this matter, on June 5, 2012, Plaintiff testified as to a number of physical limitations that she experienced due to her hydrocephalus. She explained that she experiences discomfort when exposed to heat, has frequent headaches as a result of her shunt, can only sit in the same position for two hours, can only walk for twenty minutes at a time, has balance problems, experiences fatigue, and needs to nap for about four hours at a time. AR 52, 55, 58. Plaintiff also ...

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