Brown v. Kijakazi

• Court: District Court, District of Columbia
• Decided: November 1, 2022
• Docket: Civil Action No. 2021-2416
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BEAUFORT BEE BROWN,

Plaintiff, v. No. 21-cv-2416-ZMF KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION

Plaintiff Beaufort Bee Brown moves for reversal of Defendant Commissioner of the Social

Security Administration’s decision adopting the findings of an Administrative Law Judge and

denying his application for Supplemental Security Income (“SSI”). See Mem. Supp. Pl.’s Mot. J.

Rev. (“Pl.’s Mot.”), ECF No. 19. Defendant Commissioner also moves for reversal of the decision

and remand of the matter to the Commissioner for further administrative proceedings. See Def.’s

Mot. Entry J. Remand Pursuant to Sentence Four of 42 U.S.C. § 405(G) (“Def.’s Mot.”), ECF No.

20. Having considered the parties’ submissions and the Administrative Record, 1 and for the

reasons set forth below, the Court will GRANT Plaintiff’s motion for a judgment of reversal and

remand this matter to the Commissioner for further proceedings, and GRANT Defendant’s motion

for a judgment of reversal and remand.

1 For ease of reference, citations to the Administrative Record will refer to the “AR” and cite to the consecutive page numbers provided in the lower right-hand corner of each page.

1 I. BACKGROUND

A. Statutory Framework

The Social Security Act (the “Act”) provides SSI for “disabled” individuals. 42 U.S.C.

§ 423(a)(1). The Act defines “disability” as the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment . . . which has

lasted or can be expected to last for a continuous period of not less than 12 months.” Id.

§ 423(d)(1)(A). The impairment must be severe and must render the individual unable to perform

both “previous work” and “any other kind of substantial gainful work which exists in the national

economy.” Id. § 1382c(a)(3)(B); see 20 C.F.R. § 416.905.

The Social Security Administration (“SSA” or “Commissioner”) uses a five-step sequential

process to determine whether a claimant is disabled. See 20 C.F.R. § 416.920(a)(4). If a

determination can be made at any step, the SSA does not go on to the next step. See id. The

burden of proof is borne by the claimant at each of the first four steps and switches to the

Commissioner at step five. See Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004) (citing 20

C.F.R. §§ 404.1520, 416.920). At step one, the claimant must demonstrate he is not presently

engaged in “substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i). At step two, the claimant

must show that he has a “severe” medically determinable impairment that “significantly limits

[his] physical or mental ability to do basic work activities.” Id. §§ 416.920(a)(4)(ii), 416.920(c).

At step three, the claimant must show that his impairment—or combination of impairments—

“meets or equals” the criteria of an impairment listed in the Commissioner’s regulations. Id.

§ 416.920(a)(4)(iii). If the claimant’s impairment does not meet or equal a listed impairment, the

Commissioner proceeds to step four, which requires the Commissioner to determine the claimant’s

residual functional capacity (“RFC”) and whether, in light of the RFC, the claimant can still

2 perform any relevant past work. See id. §§ 416.920(a)(4)(iv), 416.920(e)–(f). If the RFC indicates

that the claimant cannot engage in past work, then at step five, the Administrative Law Judge looks

to the claimant’s RFC, age, education, and past work experience to determine if he can perform

“other work” in the national economy. Id. §§ 416.920(a)(4)(v), 416.920(g).

B. Procedural Background

On November 20, 2017, Mr. Brown filed an initial claim for SSI. See AR 9, 86. On

January 18, 2018, Mr. Brown received a notice of denied claim for SSI. See AR 115–17. On

January 29, 2018, Mr. Brown requested the reconsideration of his claim. See AR 118–20. On

May 16, 2018, the SSA reaffirmed denial. See AR 121–23.

On June 26, 2018, Plaintiff requested a hearing. See AR 124–25. On September 5, 2019,

ALJ Richard Furcolo (“the ALJ”) held the hearing. See AR 39.

On September 24, 2019, the ALJ denied Mr. Brown’s claim. See AR 21. On November

19, 2019, Mr. Brown requested a review of the ALJ’s decision. See AR 5. On July 10, 2020, the

SSA denied that request. See AR 1.

On May 9, 2022, Mr. Brown filed a Motion for Judgment of Reversal. See Pl.’s Mot. 21.

On June 17, 2022, Defendant filed their Motion for Judgment of Remand. See Def.’s Mot. 3.

C. Factual Background

Mr. Brown received a GED in 2001. See AR 19, 52. Mr. Brown previously worked as a

fast-food worker, a truck unloader/overnight stocker, a grocery store cashier, and a produce clerk.

See AR 19. Mr. Brown’s alleged disability began on November 20, 2017 due to mental health,

gout in both feet, bilateral knee pain, hand numbness, post-traumatic stress disorder (“PTSD”), a

learning disorder, seizures, lower and middle back pain, migraines, high blood pressure, and high

cholesterol. See AR 15, 86–87.

3 Many doctors evaluated Mr. Brown. See AR 240–499. Dr. Raymond J. Brown has treated

Mr. Brown for PTSD since October 5, 2017. See AR 242. Dr. Brown stated that Plaintiff was

“likely to have absenteeism, likely to have difficulty with persistence, [and] likely to cause

disruption due to angry outbursts.” AR 242.

On January 15, 2018, following an order from the State Agency, 2 Dr. Jennifer Christman

conducted a psychological and intellectual evaluation of Mr. Brown. See AR 341. Mr. Brown’s

mental health symptoms included dysphoric moods, irritability, social withdrawal, exaggerated

startle response, nightmares, avoidant behaviors, intrusive thoughts, angry outbursts, detachment

from others, auditory hallucinations, and short-term and long-term memory deficits. See AR 341–

42. Moreover, Dr. Christman reported Mr. Brown’s results on the Wechsler Adult Intelligence

Scale – Fourth Edition, which provided an estimate of Mr. Brown’s “current functioning.” AR

344. Mr. Brown’s Verbal Comprehension Index Score was 61 (0.5th percentile), Perceptual

Reasoning Index Score was 63 (1st percentile), Working Memory Index Score was 66 (1st

percentile), Processing Speed Index Score was 65 (1st percentile), and his Full Scale IQ was 57

(0.2nd percentile). See AR 345. Dr. Christman diagnosed Mr. Brown with mild intellectual

disability, PTSD, unspecified schizophrenia spectrum and other psychotic disorder, and other

specified personality disorder-antisocial traits, among other diagnoses. See AR 346.

Dr. Christman also found that Mr. Brown has a “moderate limitation in his ability to understand,

remember, or apply complex directions and instructions and sustain concentration and perform a

task at a consistent pace.” AR 346. Dr. Christman concluded that “[t]he results of the present

2 State agencies make initial and reconsideration determinations of disability for the Commissioner for individuals living in the state. See 20 C.F.R. §§ 416.903, 404.1503. These agencies are under contract to the SSA and operate in accordance with the rules, regulations, and standards promulgated by the SSA. See 42 U.S.C. § 421(a)(2).

4 evaluation appear to be that [Mr. Brown] is experiencing psychiatric and cognitive problems that

may significantly interfere with [his] ability to function on a daily basis.” AR 346.

On January 18, 2018, the State Agency found that Plaintiff had severe mental impairments.

See AR 90, 98. The report asserted that Mr. Brown was limited to managing simple instructions,

simple tasks, and simple work-related decisions. See AR 94–95. On May 15, 2018, the State

Agency affirmed these findings at the reconsideration level. See AR 109–11.

D. The ALJ’s Decision

At step one, the ALJ determined that Mr. Brown had not engaged in substantial gainful

activity since the alleged disability onset date. See AR 11. At step two, the ALJ determined that

Mr. Brown had the following severe impairments: dysfunction of major joints, epilepsy,

neurocognitive disorder, depressive disorder, personality disorder, neurodevelopmental disorder,

trauma-related disorder, inflammatory arthritis, and obesity. See AR 11 (citing 20 C.F.R.

§ 416.920(c)). The ALJ acknowledged that the record contained evidence of hypertension and

sleep apnea but found that these conditions “did not result in more than a minimal limitation in the

claimant’s ability to perform basic work activities.” AR 11.

At step three, the ALJ determined that Mr. Brown did not have an 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. See AR 12. The ALJ considered Listings 11.02 (epilepsy), 14.09

(inflammatory arthritis), and 1.02 (major dysfunction of a joint(s)) as well as Listings 12.02, 12.04,

12.08, 12.11, and 12.15 (mental impairments). See AR 12–14.

At step four, the ALJ determined that Mr. Brown had the RFC to perform light work with

the following limitations: should not frequently climb stairs, balance, stoop, kneel, crouch, and

crawl; should never climb ladders; should avoid even moderate exposure to hazards; should avoid

5 concentrated exposure to extreme cold, extreme heat, and pulmonary irritants; could perform

simple, routine, repetitive tasks; and, occasionally interact with supervisors and the general public.

See AR 14. Through the two-step process, the ALJ found that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the record.” AR 15. Moreover,

the ALJ found that Plaintiff’s statements about the intensity, persistence, and limiting effects of

Plaintiff’s symptoms were inconsistent because the medical records suggested they were not

disabling. See AR 15–19. The ALJ also found that Mr. Brown was unable to perform any past

relevant work. See AR 19.

Finally, at step five, the ALJ determined that there were jobs that existed in significant

numbers in the national economy that Mr. Brown could perform. See AR 19. In reaching this

conclusion, the ALJ relied on the testimony of vocational expert Dr. James Michael Ryan. See

AR 19–20, 70. The vocational expert testified that an individual with Plaintiff’s characteristics

could perform the requirements of representative occupations such as (i) bakery worker,

(ii) grading/sorting worker, and (iii) bench worker. See AR 19–20, 70, 80–81.

II. LEGAL STANDARD

When reviewing the Commissioner’s disability determination, a district court must uphold

the decision “if it is supported by substantial evidence and is not tainted by an error of law.” Smith

v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987) (citing Brown v. Bowen, 794 F.2d 703, 705 (D.C.

Cir. 1986)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Butler, 353 F.3d at 999 (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971)). This standard “requires more than a scintilla, but can be satisfied by

6 something less than a preponderance of the evidence.” Fla. Mun. Power Agency v. U.S. Fed.

Energy Regul. Comm’n, 315 F.3d 362, 365–66 (D.C. Cir. 2003) (quoting FPL Energy Me. Hydro

LLC v. U.S. Fed. Energy Regul. Comm’n, 287 F.3d 1151, 1160 (D.C. Cir. 2002)).

“Substantial-evidence review is highly deferential to the agency fact-finder.” Rosello ex

rel. Rosello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008). “An ALJ’s credibility

determinations, in particular, ‘are entitled to great deference’ and may only be overturned under

‘extraordinary’ circumstances.” Harrison Cnty. Coal Co. v. Fed. Mine Safety & Health Rev.

Comm’n, 790 Fed. App’x 210, 212 (D.C. Cir. 2019) (quoting Sec’y of Lab. v. Keystone Coal

Mining Corp., 151 F.3d 1096, 1107 (D.C. Cir. 1998)). “The reviewing court may neither reweigh

the evidence presented to it nor replace the Commissioner’s judgment ‘concerning the credibility

of the evidence with its own.’” Goodman v. Colvin, 233 F. Supp. 3d 88, 104 (D.D.C. 2017)

(quoting Crosson v. Shalala, 907 F. Supp. 1, 3 (D.D.C. 1995)). But this deference requires that

the ALJ build a “logical bridge” between the evidence and his conclusions so that this Court may

“assess the validity of the agency’s ultimate findings and afford a claimant meaningful judicial

review.” Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 67 (D.D.C. 2006) (quoting Scott v.

Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)).

On review, the “plaintiff bears the burden of demonstrating that the Commissioner’s

decision [was] not based on substantial evidence or that incorrect legal standards were applied.”

Settles v. Colvin, 121 F. Supp. 3d 163, 169 (D.D.C. 2015) (quoting Muldrow v. Astrue, No. 11-cv-

1385, 2012 WL 2877697, at *6 (D.D.C. July 11, 2012)). If a court finds that the ALJ applied the

correct legal standards and met the substantial evidence threshold, the court may grant the

Commissioner’s motion for an affirmance. See, e.g., Hicks v. Astrue, 718 F. Supp. 2d 1, 17 (D.D.C.

2010). If a court finds error in an ALJ’s determination that a claimant was not disabled, it may

7 reverse and remand, requiring the SSA to conduct further proceedings consistent with the law.

See, e.g., Jackson v. Barnhart, 271 F. Supp. 2d. 30, 38 (D.D.C. 2002).

III. ANALYSIS

A. Joint Request for Remand

Mr. Brown challenges the ALJ’s decision on four grounds: (1) in general, the ALJ erred

by failing to properly evaluate Plaintiff’s intellectual disability; 3 (2) at step two, the ALJ failed to

offer any rationale as to whether Plaintiff’s intellectual disability constituted a “severe”

impairment; (3) at step three, the ALJ failed to evaluate whether Plaintiff met or medically equaled

Listing 12.05; and (4) at step four, the ALJ omitted limitations related to Plaintiff’s intellectual

disability from the RFC. See Pl.’s Mot. 1.

Defendant requests that the Court enter a judgment that reverses the final decision of the

Commissioner and remands the case to the Commissioner for further administrative proceedings.

See Def.’s Mot. 1.

B. Issues for Consideration on Remand

First, the ALJ failed to consider whether Plaintiff’s intellectual disability was a medically

determinable and/or severe impairment at step two. See AR 11–19. When summarizing the

opinion of Dr. Christman, the ALJ acknowledged Plaintiff’s IQ of 57 and the diagnosis of mild

intellectual disability. See AR 16. However, the ALJ said that Dr. Christman’s opinion was only

“moderately persuasive” as it was “partially consistent with the objective evidence.” AR 18. Yet,

even with this caveat, the ALJ implicitly accepted Dr. Christman’s opinion to a degree. The ALJ

3 At the hearing, Plaintiff was pro se and suffering from a mental illness. See AR 9, 16. An ALJ has a “duty to investigate fully all matters at issue and to develop the comprehensive record requisite for a fair determination of disability.” Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987). This duty is heightened in instances where the plaintiff is both unrepresented and suffering from a mental illness. See id. at 870–71.

8 failed to “build an ‘accurate and logical bridge’” between the evidence of Plaintiff’s intellectual

disability and the ALJ’s finding that such diagnosis was not severe. Lane-Rauth, 437 F. Supp. 2d

at 67 (quoting Scott, 297 F.3d at 595). Remand is the appropriate remedy for such error. Lane-

Rauth, 437 F. Supp. 2d at 68–69. The Defendant concedes this. See Def.’s Mot. at 1–2.

Second, the ALJ failed to consider all three prongs of Listing 12.05B (Intellectual Disorder)

at step three. See AR 12–14. Listing 12.05B(1) is satisfied by a “[s]ignificantly subaverage

general intellectual functioning evidenced by . . . [an] IQ score of 70 or below on an individually

administered standardized test of general intelligence.” 20 C.F.R., Part 404, Subpt. P., App’x. 1,

§ 12.05B(1). Plaintiff’s IQ of 57 meets this criterion. See id.

Listing 12.05B(2) necessitates “[s]ignificant deficits in adaptive functioning currently

manifested by extreme limitation of one, or marked limitation of two, of the following areas of

mental functioning: (a) [u]nderstand, remember, or apply information . . . ; or (b) [i]nteract with

others . . . ; or (c) [c]oncentrate, persist, or maintain pace; or (d) [a]dapt or manage oneself.” Id.

§ 12.05B(2). The ALJ must use a five-point rating system, ranging from “none” to “extreme,” to

assess the claimant’s limitations in each of these areas. Id. § 12.00F. The ALJ made no

conclusions for Listing 12.05B(2), which foreclosed the ALJ from finding a moderate limitation. 4

See AR 9–21. Indeed, Plaintiff provided evidence to warrant a finding of limitation in this area.

See AR 345–46.

Listing 12.05B(3) necessitates “evidence about [the claimant’s] current intellectual and

adaptive functioning and about the history of [the claimant’s] disorder [that] demonstrates or

supports the conclusion that the disorder began prior to [the claimant’s] attainment of age 22.” 20

4 However, the ALJ appropriately concluded that Plaintiff has a “moderate limitation” for all other Listings he considered related to Plaintiff’s mental impairments (Listings 12.02, 12.04, 12.08, 12.11, and 12.15). AR 13–14.

9 C.F.R., Part 404, Subpt. P., App’x. 1, § 12.05B(3). Plaintiff appears to have facts to support this

showing, although these facts were not part of the record. For example, while Plaintiff was in

school, he was in a special education program for a learning disability. See AR 341. Plaintiff

dropped out of school during the 9th grade, which is well before the age of 22. See AR 341.

Because the ALJ owed Plaintiff a heightened duty to inquire, the ALJ was obligated to build a

record of Plaintiff’s complete medical history. See supra n.3; see also Poulin, 817 F.2d at 871–

73. This included obtaining Plaintiff’s educational records or other records that may have provided

evidence regarding intellectual disability prior to age 22. But the ALJ failed to do that. See Pl.’s

Mot. 18–19.

Third, the ALJ failed to fully account for Plaintiff’s intellectual disability in the RFC

finding. See AR 14–19. In turn, Plaintiff’s inability to perform even simple tasks with the

sustained persistence and pace needed to perform sustained full-time work was not adequately

considered by the vocational expert. See AR 19–20, 79–83; Butler, 353 F.3d at 1005–06. This

failure was not harmless. See Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989). When the

RFC and concomitant hypothetical presented to the vocational expert do not accurately describe

the claimant’s limitations, such deficiencies “undermine the foundation for the expert’s ultimate

conclusion that there are alternative jobs [the claimant] can [perform].” Id.

10 IV. CONCLUSION

Ultimately, the combined effect of these errors is a step five finding that is contrary to law

and not supported by substantial evidence. See Butler, 353 F.3d at 1005–06. Therefore, as set out

in an accompanying order, Plaintiff’s Motion for a Judgment of Reversal and Remand and

Defendant’s Motion for a Judgment of Reversal and Remand will be granted. This matter is

remanded to the Commissioner for further proceedings consistent with this opinion.

2022.11.01 16:48:43 -04'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE