United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Michael Henderson brings this suit seeking review of
Defendant Commissioner Andrew Saul's final administrative
decision denying his claim for Supplemental Security Income
(“SSI”) pursuant to 42 U.S.C. § 405(g).
Pending before the Court are M r. H enderson's Motion for
Judgment of Reversal, ECF No. 14, and the Commissioner's
Motion for Judgment of Affirmance and Opposition to
Plaintiff's Motion for Judgment of Reversal, ECF No. 15.
Upon consideration of the briefing,  the administrative record,
and the relevant legal authorities, the Court shall
GRANT IN PART and DENY IN
PART Mr. Henderson's Motion for Judgment of
Reversal and GRANT IN PART and DENY
IN PART the Commissioner's Motion for Judgment
Henderson petitioned the Social Security Administration for
SSI on April 25, 2013. Pl.'s Mot. at 1; Administrative
Record (“A.R.”) ECF No. 11, at 70, 82. To qualify
for SSI, a claimant must demonstrate an “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment”
coupled with an inability to “engage in any other kind
of substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(1)-(2). By satisfying
both conditions, a claimant is “disabled” for the
purposes of the Social Security Act. To decide whether a
claimant has proven he is disabled, the ALJ must use a
five-step sequential analysis. 20 C.F.R. §§
404.1520, 416.920. The ALJ determines (1) the claimant's
current work activity, (2) the severity of his impairments,
(3) whether the impairments meet or equal listed impairments,
(4) if not, whether the impairment prevents the claimant from
doing past work, and (5) whether the impairment prevents him
from doing other work upon consideration of the
claimant's residual functional capacity
(“RFC”), age, education, and past work
experience. See 20 C.F.R. §§ 404.1520,
416.920; Butler v. Barnhart, 353 F.3d 992, 997 (D.C.
Cir. 2004). The claimant carries the burden on the first four
steps, but the burden shifts to the agency on step five.
Butler, 353 F.3d at 997 (citing 20 C.F.R.
§§ 404.1520, 416.920).
application for SSI, Mr. Henderson alleged that his
disabilities included diabetes, lung cancer, and various
issues with his kidneys and back. A.R. at 70, 82. He was
forty-eight and a resident of Washington, D.C. at the
time. Id. His claim was initially
denied on February 18, 2014. Id. at 80 (“While
you are not capable of performing work you have done in the
past, you are able to perform work that is less
demanding.”); Pl.'s Mot. at 1 (noting denial). It
was denied again upon reconsideration on July 31, 2014. A.R.
at 97 (“We have determined that your condition is not
severe enough to keep you from working. . . . we have
determined that you can adjust to other work.”);
Pl.'s Mot. at 1-2 (noting denial). Following these
denials, Mr. Henderson requested a hearing before an
Administrative Law Judge (“ALJ”). Pl.'s Mot.
at 2; A.R. at 124.
records also indicate that several physicians and a mental
health specialist evaluated Mr. Henderson during the period
of alleged disability. Three of those examiners are most
relevant to Mr. Henderson's arguments: Dr. Rebecca
Brosch, Dr. Elliot Aleskow, and Dr. Joel Taubin. First, Dr.
Brosch, Psy.D., evaluated Mr. Henderson on July 22, 2014.
A.R. at 487. Her evaluation notes included what Mr. Henderson
told her, her own observations, and her ultimate medical
source statement. A.R. at 487-92. To begin with, she
explained that Mr. Henderson told her that it was a
“recurring pattern for him” to be “fired or
laid off from almost all of his jobs” because of
“his inability to control his temper” and being
generally aggressive toward others. Id. at 487. Mr.
Henderson reported “significant anger and aggression,
impulsivity, [and] inability to control his temper, ”
as well as “paranoid ideation, ” which resulted
in him “lashing out at others.” Id. at
488. During the evaluation, he presented as “irritable,
suspicious, and distressed, ” and he had difficulty
relating or making eye contact. Id. at 489. His
speech was “[f]luent and clear” and he had
“[g]enerally coherent and goal directed” thought
processes, although he “presented as somewhat
paranoid.” Id. Mr. Henderson exhibited
“emotional distress, anxiety, and nervousness” in
his evaluation and was “tearful throughout a
significant portion of the evaluation.” Id. at
490. Consequently, Dr. Brosch thought his attention and
concentration skills were impaired. Id.
Brosch ultimately opined that Mr. Henderson “appear[ed]
to be able to follow and understand simple directions.”
Id. at 490-91. She also outlined her other findings:
Mild to moderately limited in his ability to perform simple
tasks. Moderately limited in his ability to maintain
attention and concentration. He appears to be able to
maintain a schedule. Mild to moderately limited in his
ability to learn new tasks. Moderate to markedly limited in
his ability to perform complex tasks independently. Markedly
limited in his ability to make appropriate decisions, relate
adequately with others, and appropriately deal with stress.
His difficulties are caused by mood disturbance, impulse
control problems, anger management difficulties, impulsivity,
and paranoid ideation.
Id. at 491. She explained that these issues
“may significantly interfere with the claimant's
ability to function on a daily basis.” Id.
Dr. Aleskow, M.D., evaluated Mr. Henderson on November 25,
2013. A.R. at 443. D r. Aleskow's evaluation focused on
what Mr. Henderson reported, rather than on his own opinions.
See A.R. at 443-45. Among other things, Dr. Aleskow
noted that Mr. Henderson complained of “tingling and
numbness in his hands and feet, ” which led to him
sometimes having “difficulty handling and carrying
objects because of the numbness.” Id. at 443.
Mr. Henderson told Dr. Aleskow that he had
“intermittent resting tremors.” Id. D r.
Aleskow's examination also revealed that Mr. Henderson
had “a resting tremor, ” which was “worse
on the right than the left, ” and that he had
“4/5 hand grip strength bilaterally, but had some
difficulties with fine motor skills in both hands.”
Id. at 444-45. D r. Aleskow's final discussion
further stated that Mr. Henderson had “a tremor of
unknown etiology.” Id. at 445.
Dr. Taubin, M.D., evaluated Mr. Henderson on January 23,
2014. A.R. at 452. Dr. Taubin similarly noted that Mr.
Henderson had “a fine tremor of his right hand”
and that his right hand was “tremulous, ” leading
to “difficulty writing with the hand.”
Id. at 454. According to Dr.
Mr. Henderson had “3/5 [grip] on the right and 5/5 on
he left.” Id. He also stated, however, that
Mr. Henderson “wrote his name on the card with no
difficulty.” Id. In his final impressions, Dr.
Taubin explained that Mr. Henderson had a “[t]remor of
the right hand” and a “[h]istory of a
tremor.” Id. at 455. He concluded that Mr.
Henderson could not “use fine dexterity because of
[the] tremor of his right hand.” Id.
his evaluations and the previous denial of his claim, Mr.
Henderson's video hearing occurred on June 28, 2016. A.R.
at 13; Pl.'s Mot. at 2. At the hearing, Mr. Henderson was
represented by counsel and a vocational expert
(“VE”), Patricia L. Chilleri, testified. A.R. at
13, 31-32, 53. The VE did not provide any pre-hearing report.
Pl.'s Mot. at 17 n.7. Counsel for M r. Henderson objected
to the VE testifying, alleging that she lacked
qualifications. A.R. at 54. When questioned about what other
work Mr. Henderson could perform, the VE referenced jobs as
described in the Dictionary of Titles (“DOT”) and
provided national numbers for those jobs. Id. at 57.
She identified three jobs in particular: weigher, checker,
and measurer (sample DOT code 299.587-010) with approximately
24, 400 jobs nationwide; sorter, sampler, tester, and
inspector (sample DOT code 789.687-146) with approximately
16, 500 jobs nationwide; and billing, packing, and wrapping
worker (sample DOT code 920.687-138) with approximately 19,
300 jobs nationwide. Id.
did not question the methodology by which the VE determined
the job numbers provided. See Id. at 54-58. Counsel
for Mr. Henderson did question how the VE determined those
Q Okay and what methodology or process did you use to reach
the conclusions of the number of jobs available in the
national economy for the sample jobs you presented today?
A Well, I use government publications, starting with the DOT
and supplements and then work with the Bureau of Research and
Statistics and the Labor Market Analysts in obtaining
information from the American Community Survey and the Long
Term Occupational Employment Projections and I also utilize
source[s] such as SkillTRAN and the Northeast-the Northern
American Occupational System and Classification.
Id. at 60. Counsel for Mr. Henderson concluded by
requesting that the record be left open to submit a
post-hearing brief. The ALJ granted that request and left the
record open for an additional fourteen days. Id. at
Henderson subsequently submitted an eight-page post-hearing
brief with objections to the VE's testimony. See
Id. at 252-60. In addition to objecting to the VE's
qualifications again, the brief detailed other objections,
most of which appeared to argue that the VE's testimony
was unreliable for numerous reasons. First, Mr. Henderson
contended that some of the resources used by the VE were not
reliable government publications, which can be
administratively noticed by the ALJ, and were instead private
programs or resources. Id. at 252-53. Moreover, Mr.
Henderson explained, because the DOT has not been updated in
decades, there is no reliable or consistent way to translate
current job data from the Department of Labor and U.S. Census
Bureau to the DOT titles. Id. at 253. As the VE did
not explain which programs from SkillTRAN she used, M r.
Henderson listed objections to all three commercially
available programs: Job Browser Pro, Occubrowse, and OASYS.
Id. at 253-57. He additionally objected on the basis
that the jobs discussed at the hearing are no longer
performed at the unskilled level identified by the VE, and
because those same jobs required more social interaction than
identified by the VE. Id. at 257-59. Lastly, he
objected to a decision being made without an additional
hearing to address these questions raised about the VE's
testimony. Id. at 259.
issued a decision that denied Mr. Henderson's claim for
benefits on October 26, 2016. Id. at 13-23. Before
beginning the five-step analysis, the ALJ addressed some of
Mr. Henderson's objections. Id. at 13. First,
the ALJ overruled his “objection to the vocational
expert's testimony regarding jobs numbers and the
expert's methodology in determining jobs numbers.”
Id. He explained that:
Social Security Administration regulation requires the
undersigned to take administrative notice of reliable job
information available from various publications, including
the [DOT] and other government sources, used by the
vocational expert in this case (SSR 00-4p; 20 C.F.R.
404.1566(d) and 416.966(d)). Moreover, the Social Security
Administration uses vocational experts because they are
qualified to resolve complex vocational issues, such as
testifying about the number of jobs available in the national
economy from information produced by the Bureau of Labor
Statistics. The undersigned relies on Social Security
regulations 20 C.F.R. 404.1560(b)(2), 404.1566(d), and
416.966(d) and takes administrative notice of this job data.
Id. The ALJ further overruled Mr. Henderson's
objection that, in the decision's language, “the
jobs identified by the vocational expert at the hearing are
no longer available.” Id. The ALJ emphasized
that he took “administrative notice of the reliable job
information available” in the DOT and in “one or
more of the publications identified in” the regulations
as “reliable sources” that were relied upon by
the VE. Id. at 14. Lastly, the ALJ denied Mr.
Henderson's request for a supplemental hearing because
his “representative had ample opportunity to question
the vocational expert at the hearing.” Id.
addressing the objections, the decision laid out the
ALJ's findings. First, the ALJ found that Mr. Henderson
had not been engaged in substantial gainful activity since
his application date. Id. at 16. Next, the ALJ found
that Mr. Henderson had several severe impairments:
“chronic obstructive pulmonary disease
(‘COPD'), diabetes mellitus, diabetic neuropathy,
obesity, hypertension, lumbar radiculopathy, and affective
disorder.” Id. Then, the ALJ found that Mr.
Henderson did not have any impairment or combination of
impairments that met “the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 416.920(d), 416.925 and 416.926).” Id.
The ALJ made several specific relevant findings here. With
respect to Mr. Henderson's physical health, the ALJ did
not address at this step the tremors that the consultative
physicians described. See Id. at 16-17. Instead, the
ALJ concluded that Mr. Henderson had a “mild
restriction” in the “activities of daily
living” based on his daily activities. Id. at
17. The ALJ further found that Mr. Henderson had moderate
difficulties with social functioning and moderate
difficulties with “concentration, persistence or
determining Mr. Henderson's RFC, the ALJ found that Mr.
Henderson had “the [RFC] to perform light work, ”
except that he “must avoid unprotected heights and
dangerous machinery.” Id. at 18. Mr. Henderson
could “frequently use his bilateral hands for fine
manipulation and gross handling” and was “limited
to simple, routine tasks, with a specific vocational
preparation of 2 or below, with few workplace changes.”
Id. Additionally, the ALJ concluded that Mr.
Henderson could “have occasional interaction with
co-workers and supervisors, but [could] never interact with
the general public” and “should not engage in any
tandem, team, or group work activity.” Id.
detailed his findings, some of which are relevant here. To
begin with, in discussing Mr. Henderson's affective
disorder and mental health, he noted that Mr. Henderson had
“never received any mental health treatment and is not
taking any mental health medication, which is inconsistent
with his allegations and suggests that his symptoms may not
be as severe as has been alleged.” Id. at 20.
The A LJ outlined the ultimate findings of consultative
examiner Rebecca Brosch, PsyD, and concluded that
“[t]he undersigned has accounted for any possible
limitations resulting from the claimant's affective
disorder in his residual functional capacity.”
the ALJ proceeded to explain the weight given to various
medical opinions. Id. at 20-222. In particular, he
gave “little weight to the opinion of the consultative
examiner, Dr. Joel Taubin, ” who had opined that Mr.
Henderson could not “use fine dexterity because of
tremor of his right hand.” Id. at 21. The ALJ
also explained that he gave “substantial weight to the
opinion of consultative examiner, Dr. Rebecca Brosch, that
the claimant appear[ed] to be able to follow and understand
simple instructions.” Id. While the ALJ
referenced consultative physician D r. Aleskow's report
throughout his decision, he did not detail all of D r.