United States District Court, District of Columbia
LAVON T. DAVIS Plaintiff,
NANCY A. BERRYHILL, in her official capacity as Acting Commissioner of Social Security Defendant.
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE
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,
Court will deny Plaintiff's motion and grant
Defendant's motion. The Court's rationale follows.
Legal Framework for Social Security Disability
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.
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”),  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.
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.
Plaintiff Lavon Davis
is a 25-year-old woman residing in Washington, D.C. She was
born on December 12, 1991 and suffers from hydrocephalus,
requiring the placement of a shunt. AR at 566, 618, 746, 766. In
addition to hydrocephalus, Plaintiff has been diagnosed with
borderline intellectual functioning and affective
disorder. 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,
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”)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. 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.
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.
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. 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.
Plaintiff's Application for Disability Benefits and the
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.
The Administrative Record
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.
Plaintiff's Medical History
after her birth, Plaintiff developed hydrocephalus and a
Dandy-Walker malfor-mation. 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.
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.
Dr. Sambhu Banik, Ph.D. - Consultative Psychological
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.
Banik administered a WAIS-IV test,  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.
Dr. Chitra Chari, M.D. - Consultative Physical
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.
Dr. Norman Kane, Ph.D. - State Agency Medical
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.
Dr. Esther Pinder, M.D. - State Agency Medical
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.
Dr. Gemma Nachbahr, Ph.D. - State Agency Medical
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.
Dr. Jacqueline McMorris, M.D. - State Agency Medical
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. Id. at 151.
Dr. Hillel Raclaw, Ph.D. - State Agency Medical
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.
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.
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 ...