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Henderson v. Saul

United States District Court, District of Columbia

October 28, 2019

MICHAEL HENDERSON, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff 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, [2] 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 of Affirmance.

         I. BACKGROUND

         Mr. 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).

         In his 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.[3] 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.

         The 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.

         Dr. 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.

         Second, 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.

         Third, 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.

         Taubin, 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.

         Following 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.

         The ALJ 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 job numbers:

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.[4] Counsel for Mr. Henderson concluded by requesting that the record be left open to submit a post-hearing brief.[5] The ALJ granted that request and left the record open for an additional fourteen days. Id. at 61-62.

         Mr. 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.

         The ALJ 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.

         After 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 pace.” Id.

         In 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.

         The ALJ 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.” Id.

         Next, 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. ...


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