UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHRISTINE HICKS,
Plaintiff, Civil Action No. 05-2093 (CKK) v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION (June 16, 2010)
Plaintiff Christine Hicks brings this action seeking review of the final administrative
decision by Defendant Michael J. Astrue, in his official capacity as Commissioner of Social
Security (the “Commissioner”),1 denying Plaintiff’s claim for Supplemental Security Income
Benefits (“SSIB”) pursuant to 42 U.S.C. § 405(g). Pending before the Court are Plaintiff’s
Motion for Judgment of Reversal and Defendant’s Motion for Judgment of Affirmance. After
reviewing the parties’ briefs, the administrative record, and the relevant case law, the Court shall
DENY Plaintiff’s [6] Motion for Judgment of Reversal and shall GRANT Defendant’s [10]
Motion for Judgment of Affirmance, for the reasons that follow.
I. BACKGROUND
A. Legal Framework and Procedural History
Plaintiff filed an application for SSIB pursuant to Title XVI of the Social Security Act on
1 Plaintiff’s Complaint named as the Defendant the then-Commissioner of Social Security, Jo Anne B. Barnhart. As Ms. Barnhart was sued in her official capacity, the Court has substituted the current Commissioner of Social Security, Michael J. Astrue, as the Defendant pursuant to Federal Rule of Civil Procedure 25(d). May 2, 2001. See Administrative Record (“A.R.”) at 22, 109-11.2 To qualify for SSIB, a
claimant must demonstrate a disability, which is defined by the Social Security Act as an
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. § 416(i)(1);
id. § 1382c(a)(3)(A). In addition, a claimant seeking SSIB must have a severe impairment that
makes him unable to perform past relevant work or any other substantial gainful work that exists
in the national economy. See id. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Substantial gainful
work activity is work activity that involves doing significant physical or mental activities and is
the kind of work that is usually done for pay or profit. See 20 C.F.R. § 404.1472.
In making a disability determination, an Administrative Law Judge (“ALJ”) is required to
use a five-step sequential analysis examining (1) the claimant’s recent work activity, (2) the
severity and duration of the claimant’s impairments, (3) whether the claimant’s impairments are
medically equivalent to those contained in the Listing of Impairments promulgated by the Social
Security Administration, (4) the claimant’s residual functional capacity and ability to perform
past work, and (5) the claimant’s ability to perform jobs reasonably available in the national
economy. Id. §§ 404.1520(a)(4), 416.920(a)(4); see also Brown v. Barnhart, 408 F. Supp. 2d 28,
32 (D.D.C. 2006). At the first step in the analysis, the ALJ must determine whether the claimant
is working and whether the work is substantial gainful activity; if so, the claim must be denied.
2 Although Plaintiff indicates in the introductory paragraph of her Motion that she applied for both Supplemental Security Income Benefits as well as Disability Insurance Benefits, see Pl.’s Mot. at 1, her reference to Disability Insurance Benefits appears to be a typographical error as the only application under review is Plaintiff’s claim for SSIB.
2 See Brown, 408 F. Supp. 2d at 32. At step two, the ALJ must determine whether the claimant’s
impairments are severe; if they are not, the claim must be denied. Id. In step three, the ALJ
compares the impairments to a listing of impairments that automatically qualify as a disability
under the regulations. If the claimant’s impairments match those listed, disability is conclusively
presumed. Id. If there is no match, the ALJ proceeds to step four and determines whether the
claimant has any residual functional capacity to perform his old job. If so, the claim will be
denied. Id. If not, the ALJ proceeds to step five and determines whether there is any other
gainful work in the national economy that the claimant could perform notwithstanding his
disability. Although the claimant bears the burden of proof with respect to the first four steps of
the analysis, at step five the burden shifts to the Social Security Administration to demonstrate
that the claimant is able to perform “other work” based on his residual functional capacity, age,
education, and past work experience. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). If
so, the claim must be denied.
At the time of Plaintiff’s hearing, she was a 42 year-old female resident of the District of
Columbia. A.R. at 23. Plaintiff has a 12th grade high school education, and her past relevant
work includes work as a finance assistant. Id. In her application for SSIB, Plaintiff alleged that
she was disabled as of July 1, 1997, due to depression, high blood pressure, a seizure disorder
and asthma. Id. at 22, 117. Plaintiff’s claims were denied both initially and upon
reconsideration. Id. at 22. Plaintiff requested a hearing, but waived her right to an oral hearing
in person before the ALJ. Id. at 22, 72-73. A hearing was subsequently scheduled for March 13,
2003. Id. at 22. Although Plaintiff had waived her right to appear, the ALJ issued a show cause
order requiring Plaintiff to explain her failure to appear at the hearing and ultimately dismissed
3 the claim on April 14, 2003. Id. at 61, 81. Plaintiff then requested review by the Appeals
Council, which reversed the ALJ’s order of dismissal and remanded the case for decision. Id.
100-01. A supplemental hearing was held before an ALJ on January 11, 2005. Id. 22. Plaintiff
again waived her right to appear and testify at that hearing. Id. Her attorney was present,
however, as was an impartial vocational expert (“VE”). Id. In a decision dated February 1,
2005, the ALJ determined that Plaintiff was not disabled within the meaning of the Social
Security Act and denied the requested benefits. See generally id. at 19-31.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date. Id. at 23, 30. At step two, the ALJ found that the medical
evidence indicated that Plaintiff had a seizure disorder and hypertension and that both
impairments qualified as “severe.” Id. at 27, 30. The ALJ determined at step three that the
impairments did not meet or medically equal, either singly or in combination, one of the
impairments listed in Appendix 1, Subpart P, No. 4 (20 C.F.R. § 404.1520(d)). Id. at 27, 30. At
step four, the ALJ assessed Plaintiff’s RFC and determined that Plaintiff could not return to her
past relevant work. Id. at 28, 31. The ALJ therefore continued on to step five, at which stage he
concluded that Plaintiff was capable of performing a “reduced range of light level work.” Id. at
28, 31. The ALJ noted, however, that Plaintiff’s “capacity to perform a full range of light level
work is diminished because she requires unskilled work, with a sit/stand option and limited
general public contact.” Id. at 31. Based on testimony from the VE, the ALJ determined that
there were a significant number of jobs in the national economy that Plaintiff could perform,
including mail clerk (non postal) and general office helper. Id. 29, 31. Accordingly, the ALJ
determined that Plaintiff “is not under a ‘disability’ as defined in the Social Security Act” and “is
4 not eligible for Supplemental Security Income payments.” Id. at 30, 31.
Plaintiff sought again review by the Appeals Council. Id. at 17-18. On October 14, 2005,
the Appeals Council issued an order concluding that there was no basis for granting the request
for review. Id. at 11-14. Having fully exhausted her administrative remedies, Plaintiff timely
filed suit in this Court.
B. Evidence Contained in the Administrative Record
The ALJ evaluated Plaintiff’s conditions based on evidence including various medical
records (both physical and mental health records) and the testimony of the VE during the
administrative hearing in this case. The Court recounts below the most relevant portions of the
administrative record.
1. Medical Records
The medical records indicate that Plaintiff was brought into the Emergency Department at
Washington Hospital Center on April 16, 2001, after suffering from a seizure. A.R. at 154-55.
Plaintiff reported a history of alcohol abuse and indicated that she had attempted to commit
suicide the previous weekend due to the sudden death of her boyfriend. Id. She was diagnosed
as having a seizure disorder, most likely alcohol related, and depression due to the loss of her
boyfriend. Id. at 156.
Medical records from Fairfax Hospital Admission, dated April 27, 2001, indicate a
follow-up visit from Plaintiff, in which she reported a long history of substance abuse problems.
Id. at 180. The record show that although arrangements had been made after Plaintiff’s April 16,
2001 hospital visit for her to enter a substance abuse program on an outpatient basis, Plaintiff
failed to keep the appointment and started drinking again. Id. The attending physician, Dr. Dale
5 A. Harris, noted that Plaintiff had been prescribed Paxil upon discharge from the hospital, but
that she reported taking the medication only sporadically. Id. On mental status examination, Dr.
Harris reported that Plaintiff was cooperative and able to sit through the interview, that she was
not suicidal or psychotic, but that her mood and affect were depressed. Id. at 179. Plaintiff was
diagnosed as having “substance abuse mixed.” Id.
On July 19, 2001, Plaintiff presented at the Greater Southeast Community Hospital
Emergency Department. Id. at 290. She had experienced a seizure, was vomiting, and
complained of abdominal pain. Id. at 288, 290. Plaintiff was found to be alert and oriented with
no respiratory deficits or musculoskeletal deficits and a normal cardiovascular status. Id. at 298.
Her blood pressure was 184/110. Id. She was diagnosed with alcohol withdrawal, vomiting, and
seizure, id. at 287, 289, and was reported to have last drank the day before her visit, id. at 294.
Medical records from the Washington Hospital Center show that Plaintiff was admitted
shortly thereafter on July 21, 2001, again with abdominal pain, nausea, and vomiting. Id. at 483.
She reported drinking heavily for two days prior to admission with worsening abdominal pain.
Id. at 486. She further reported a history of alcohol abuse, cocaine use, depression, suicidal
ideation, pancreatitis, seizure disorder, and hypertension. Id. Upon physical examination,
Plaintiff’s blood pressure was 140/100. Id. During her hospital stay, Plaintiff had a seizure
witnessed by the medical staff. Id. She was given medications for her seizure disorder and for
her abdominal pain. Id. Plaintiff was diagnosed with probable alcohol gastritis, seizure disorder,
hypertension, and depression. Id.
On August 8, 2001, Dr. Neil P. Schiff, a licensed psychologist, performed a psychological
consultative evaluation. Id. at 365-69. Plaintiff reported that she had suffered from a seizure
6 about two times per month while on medication and had made about 30 post-seizure trips to the
hospital in the past year. Id. at 367. She further reported having high blood pressure and asthma.
Id. Plaintiff indicated that she was on medication for her seizures as well as for her high blood
pressure and asthma. Id. She reported three hospitalizations for depression and suicide attempts,
although she denied any present thoughts of suicide. Id. She advised that she was taking
medication for her depression, although she was not in therapy. Id. Plaintiff further admitted a
history of alcohol and substance abuse, although she represented to Dr. Schiff that she had not
used either since 1999. Id. at 368. Dr. Schiff reported that during her interview, Plaintiff was
alert and oriented and showed no signs of any psychotic symptoms or thought disorder during the
testing. Id. In addition, Dr. Schiff administered the Wechsler Adult Intelligence Scale-Third
Edition (WAIS-III) and the Wechsler Memory Scales-Third Edition (WMS-III); she achieved a
verbal IQ of 76, a performing IQ of 69, and a Full Scale score of 70, which indicates a borderline
range of intellectual functioning. Id. at 365, 368. Dr. Schiff diagnosed Plaintiff with
schizoaffective disorder, panic disorder (without agoraphobia), seizure disorder, hypertension,
and asthma. Id. at 369.
On August 21, 2001, Dr. Jerome Putnam performed an internal medicine consultative
evaluation on Plaintiff. Id. at 479-82. He noted that Plaintiff was last hospitalized for her
asthma in either 1997 or 1998, had no recent emergency room visits for asthma, and was using a
Ventolin inhaler as needed. Id. at 479. She reported a history of depression and indicated that
she had been hospitalized on multiple occasion for depression; the records also indicate that she
was on medication for control of her depression symptoms. Id. In addition, Dr. Putnam reported
that Plaintiff had a 2-3 year history of seizure disorder, with a seizure occurring every 2-3 weeks,
7 but that she was on medication for control of her seizure disorder. Id. Dr. Putnam also noted
Plaintiff’s history of hypertension and reported that she takes medication on a regular basis to
control it. Id. On physical examination, Plaintiff was alert, oriented, and in no distress. Id. at
480. Her blood pressure was 125/75. Id. She was initially diagnosed with a history of seizure
disorder, a history of asthma (mild), a history of hypertension, which he noted was under good
control, and a history of depression, for which Plaintiff was on multiple medications. Id. at 480-
81. Dr. Putnam concluded that Plaintiff’s “hypertension and asthma are under good control” and
“would not preclude work-related activities other than exposure to noxious fumes or chemicals.”
Id. at 481. He also opined that “[t]he frequency of the seizure disorder, if this can be adequately
documented, certainly would make long-term employment somewhat problematic until this is
better under control.” Id. In addition, Dr. Putnam suggested that Plaintiff’s “depression needs to
be evaluated by a specialist.” Id.
On September 10, 2001, Plaintiff was admitted to the Washington Hospital Center with
reports of nausea, vomiting and seizure disorder. Id. at 483-84. On physical examination, her
blood pressure was 110/62. Id. at 485. She was assessed with gastritis, seizure disorder, asthma
(which was reported to be stable), and a history of urinary tract infections. Id. at 484. She was
placed on medication for her seizure disorder. Id.
On October 18 & 19, 2001, Plaintiff was examined by DDS physicians. First, a physical
residual function capacity assessment was conducted. See id. at 498-506. A primary diagnosis
was made of alcoholic seizures and asthma. Id. at 498. Plaintiff was determined to be able to lift
or carry 100 pounds or more occasionally and 50 pounds or more frequently. Id. at 499. She was
found to be able to stand or walk and sit for about 6 hours in an 8-hour workday and to be able to
8 push or pull an unlimited amount. Id. She was reported to have no postural, manipulative,
visual, communicative or environmental limitations. Id. at 500-03. Second, a psychiatric
review technique was conducted, indicating that a RFC assessment was necessary. Id. at 507.
Plaintiff was reported to have a schizoaffective disorder and anxiety (both of which were found
to be associated with a substance addiction) and subaverage general intellectual functioning. Id.
at 508-11. She was further noted to have only mild restrictions of daily living activities and mild
difficulties in maintaining social functioning with moderate difficulties in maintaining
concentration, persistence, and pace. Id. at 512. She did not have any repeated episodes of
decompensation. Id. Third, a mental residual functional capacity assessment was conducted. Id.
at 514-16. Plaintiff was found to have no significant limitations in most areas of her
understanding and memory, sustained concentration and persistence, social interaction and
adaption, with the exception that she was found to have moderate limitations in her ability to
carry out detailed instructions, to maintain attention/concentration for extended periods, and to
complete a normal workday and workweek without interruption. Id. at 514-15. The mental RFC
concluded that Plaintiff “appears to retain the capacity for routine work.” Id. at 516.
On June 19, 2002, Dr. Neal M. Kurzrok, a neurologist, reported that Plaintiff had returned
to his office after an admission to the Washington Hospital Center for seizures in April of that
year. Id. at 538. He noted that he suspected Plaintiff suffered from “a mixed seizure disorder
due to both secondarily generalized (organic) seizures from multiple prior head traumas and
alcohol,” and noted that he “had a high index of suspicion of nonepileptic seizures.” Id. Dr.
Kurzok further suspected that Plaintiff’s recent seizures were predominantly “psuedoseizures.”
Id. He diagnosed Plaintiff with peripheral neuropathy due to alcohol and recommended that she
9 switch seizure medications to prevent any potential affects on her neuropathy. Id. The medical
records also indicate that Plaintiff had a history of chronic alcohol abuse and depression/anxiety
disorder. Id.
A second physical residual functional capacity assessment was conducted on April 5,
2002, which largely reflects the same findings reached in her October 2001 assessment outlined
above. See A.R. at 523-30. The conclusions differed only insofar as the second assessment
indicates that Plaintiff could lift or carry 50 pounds (as opposed to 100 pounds or more)
frequently and 25 pounds (as opposed to 50 pounds or more) frequently and that she had several
environmental limitations. Id. at 524, 527. Otherwise, she was again found to be able to stand or
walk and sit for about 6 hours in an 8-hour workday, and to be able to push or pull an unlimited
amount. Id. She was also reported to have no postural, manipulative, visual or communicative
limitations. See id.
The record contains a second medical report by Dr. Publicker dated June 20, 2002. Id. at
532-33. Dr. Publicker stated that Plaintiff had been diagnosed with alcohol and cocaine
dependence and with a major depressive disorder (recurrent and moderate). Id. at 532. He
reported that Plaintiff was on medications for her seizures and depression. Id. Plaintiff was also
noted to have pscyhomotor retardation; her mood was reported to be depressed, anhedonic, and
defeated; and her affect sad. Id. She did not suffer from any hallucinations or delusions, and she
had no thought process disturbance. Id. at 532-33. Her memory was reported to be intact with
fair impulse control and moderate judgment. Id. at 533. Dr. Publicker concluded that Plaintiff
was “fully disabled by both psychiatric and medical (recurrent pancreatitis, hemorrhagic gastritis,
convulsions).” Id. Dr. Publicker issued a similar report on January 11, 2002 and again on
10 September 5, 2002, reaching the same conclusions as set forth in his June 20, 2002 report. Id. at
565-66.
Finally, medical records dated August 25, 2004 from a Dr. Shabana Firbous indicate that
Plaintiff had been diagnosed with major depressive disorder with psychotic features and she was
on medication for her depression. Id. at 567. The records further show that Plaintiff lived
independently, had appropriate behavior, was coherent, and had a logical, goal-directed stream of
thought. Id. at 567-68. In addition, the records indicate that Plaintiff was depressed, self-
reported auditory hallucinations, and suffered from a paranoid ideation that “others are out to get
her.” Id. at 566. She was reported to be oriented, with intact memory and fair impulse control,
although her insight and social judgment were noted to be poor. Id. at 568. Dr. Firbous
concluded that Plaintiff’s prognosis was “guarded” given her failure to be compliant with her
medication and her history of alcohol abuse, and indicated that she would likely decompensate
further due to the stress of work. Id.
2. Transcript of the Administrative Hearing
Plaintiff’s supplemental hearing was held before an ALJ on January 11, 2005. Id. at 22.
As indicated above, Plaintiff waived her right to appear and testify at that hearing. Id. However,
her attorney was present as was an impartial VE. Id. Given Plaintiff’s absence from the hearing,
the testimony consisted solely of testimony from the VE, who stated that he was familiar with
Plaintiff’s medical records. Id. at 691. The ALJ asked the VE to consider two hypotheticals.
First, the ALJ asked the VE to consider “a hypothetical person who has the same age, education,
work experience as the claimant, and who has the capacity to do light work, unskilled, with a
sit/stand option and limited general public contact.” Id. The ALJ then asked if the VE could
11 “identify any jobs that such a hypothetical person can perform on a sustained basis in which jobs
exist in significant numbers in the national economy.” Id. The VE responded in the affirmative,
testifying that “[l]ight duty, unskilled work for such a hypothetical person would include
assembly work, particularly small products assembly done at a bench type setting” as well as “a
non postal mail clerk” and “a general office helper.” Id. at 691-92. Second, the ALJ asked the
VE to consider “a hypothetical person who has the same age, education, and work experience as
the claimant, and who has the capacity to do sedentary work, unskilled with a sit/stand option
and limited general public contact.” Id. at 692. The VE indicated that sedentary, unskilled work
available for such a person would include “administrative support work such as an addresser” or
“[f]inal assembly work.” Id. The VE indicated that the examples provided of the type of work
were representative only and were not exhaustive. Id. He also stated that these jobs were all
consistent with the Dictionary of Occupational Titles, with the exception of the sit/stand option,
which is not addressed in that publication but was based on the VE’s own knowledge and
understanding. Id. at 692-93.
At the conclusion of the ALJ’s questions, Plaintiff’s attorney asked the VE three
additional hypotheticals. First, Plaintiff’s attorney asked the VE to consider, in addition to the
above hypotheticals, the further limitation that the individual’s “ability to concentrate on a job
task was poor.” Id. at 693. The VE responded that this additional limitation would preclude all
work. Id. Second, Plaintiff’s attorney asked the VE to again consider the hypotheticals
presented by the ALJ, but this time with the further limitation that the individual had “poor social
judgment,” meaning that “their ability to get along with people, interact with coworkers and
supervisors would [be] seriously impair[ed].” Id. The VE responded that this additional
12 limitation would also preclude all work. Id. Third and finally, Plaintiff’s attorney asked the VE
to consider the further limitation that the individual “is also likely to decompensate due to stress
of work.” Id. at 694. The VE indicated that this would also preclude work. Id.
II. LEGAL STANDARD
“In a disability proceeding, the ALJ ‘has the power and the duty to investigate fully all
matters in issue, and to develop the comprehensive record required for a fair determination of
disability.’” Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (quoting Diabo v. Sec’y of
HEW, 627 F.2d 278, 281 (D.C. Cir. 1980)). The Social Security Act defines “disability” as an
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). Inability to engage in substantial gainful activity not only includes the
individual’s inability to do his previous work, but requires as well an inability, “considering his
age, education, and work experience, [to] engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.” Id. at § 423(d)(2)(A). In making this determination, the ALJ is to
consider (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints,
and (4) the plaintiff’s age, education, and work history; however, “[t]he expert opinions of a
treating physician are binding on the fact finder unless contradicted by substantial evidence to the
contrary.” Davis v. Heckler, 566 F. Supp. 1193, 1196 (D.D.C. 1983) (citing cases).
A court will not disturb the determination of the Commissioner if it is based on
13 substantial evidence in the record and the correct application of the relevant legal standards. 42
U.S.C. §§ 405(g), 1383(c); Butler, 353 F.3d at 999. Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation omitted). “The test ‘requires more than a scintilla,
but can be satisfied by something less than a preponderance of the evidence.’” Butler, 353 F.3d
at 999 (quoting Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365-66 (D.C. Cir. 2003)).
In reviewing an administrative decision, a court may not determine the weight of the
evidence nor substitute its judgment for that of the Commissioner if his decision is based on
substantial evidence. Butler, 353 F.3d at 999; Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Instead, the reviewing court must carefully scrutinize the entire record to determine
whether the Commissioner, acting through the ALJ, has analyzed all the evidence and has
sufficiently explained the weight he has given to obviously probative material. “Because the
broad purposes of the Social Security Act require a liberal construction in favor of disability, the
court must view the evidence in the light most favorable to the claimant.” Martin v. Apfel, 118 F.
Supp. 2d 9, 13 (D.D.C. 2000) (citing Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994)).
The reviewing court must also determine whether credible evidence was properly
considered. Id. (citing Dionne v. Heckler, 585 F. Supp. 1055 (D. Me. 1984)). Importantly, an
ALJ cannot merely disregard evidence which does not support his conclusion. Dionne, 585 F.
Supp. at 1060. A reviewing court should not be left guessing as to how the ALJ evaluated
probative material, and it is reversible error for an ALJ to fail in his written decision to explain
sufficiently the weight he has given to certain probative items of evidence. Martin, 118 F. Supp.
2d at 13 (citing Davis, 862 F. Supp. at 2).
14 III. DISCUSSION
Plaintiff argues that the ALJ’s decision should be reversed, or alternatively that this case
should be remanded to the Social Security Administration for a new hearing. She makes two
arguments in support of these requests: (1) the ALJ erroneously determined that Plaintiff’s
depression and borderline intellect were not severe impairments at step two of the sequential
analysis; and (2) the ALJ erroneously assessed Plaintiff’s RFC at step five of the sequential
analysis. The Court shall address these arguments below, ultimately concluding that there is
substantial evidence in the record to support the ALJ’s conclusion that Plaintiff is not disabled
within the meaning of the Social Security Act.
A. The Severity Analysis at Step Two
Plaintiff first argues that the ALJ committed legal error when he found that Plaintiff’s
hypertension and seizure disorder, but not her depression and borderline intellect, were severe
impairments. Pl.’s Mot. at 4-9. As indicated above, at step two of the sequential process, the
ALJ must “consider the medical severity of [the claimant’s] impairment(s).” 20 C.F.R. §
404.1520(a)(4)(ii). If the ALJ finds that the claimant has a severe impairment, the ALJ must
proceed to step three; if, however, the claimant does not have a severe impairment, the claimant
is found to be not disabled. See id. Citing to McDonald v. Secretary of Health and Human
Services, 795 F.2d 1118 (1st Cir. 1986) and Reichenbach v. Heckler, 808 F.2d 309 (4th Cir.
1985), Plaintiff contends that an impairment must be found to be severe at step two so long as it
has more than a de minimis affect on the individual’s ability to work. Pl.’s Mot. at 5. In this
case, Plaintiff asserts that — despite the ALJ’s finding of non-severity — there is substantial
evidence in the record indicating that her depression and borderline intellect, like her
15 hypertension and seizure disorder, have more than a de minimis effect on her ability to perform
her past relevant work or substantial gainful activity. Id. at 5-9. Accordingly, Plaintiff urges that
the ALJ committed a legal error when he failed to find Plaintiff’s depression and borderline
intellectual functioning were also severe at step two.
In response, the Commissioner argues that, even assuming the ALJ improperly found
Plaintiff’s depression and borderline intellect to be non-severe, such an error does not require
reversal in this case because the ALJ did not deny Plaintiff’s benefits at step two and instead
proceeded to consider all of Plaintiff’s impairments — including her depression and borderline
intellectual functioning — in determining Plaintiff’s RFC and ability to perform past relevant
work and/or substantial gainful activity. Def.’s Mot. at 8-9. Specifically, the Commissioner
emphasizes that the ALJ determined that Plaintiff had a severe impairment or combination of
impairments at step two (here, hypertension and seizure disorder). The ALJ therefore continued
on to consider the remaining steps in the sequential analysis and, in so doing, discussed and
evaluated in detail all of the evidence relating to Plaintiff’s impairments, including those
impairments that were not specifically identified as being independently severe at step two of the
evaluation process. Accordingly, the Commissioner urges that Plaintiff was not prejudiced by
the ALJ’s determination that her remaining impairments were non-severe because he did not
deny benefits at step two based on a finding of non-severity and the medical evidence relating to
Plaintiff’s borderline intellectual functioning and depression were carefully considered by the
ALJ. See id.
The Court agrees with the Commissioner that any alleged error at step two does not
require reversal in this case. While it appears that no court in this Circuit has yet addressed the
16 question at hand, the Sixth, Ninth, and Tenth Circuits have each held that alleged errors at step
two do not necessarily require reversal so long as the ALJ considered the omitted impairment(s)
in evaluating the remaining steps in the sequential analysis. For example, in Burch v. Barnhart,
400 F.3d 676 (9th Cir. 2005), the Ninth Circuit rejected the plaintiff’s argument that the failure to
consider her obesity at step two required reversal of the Commissioner’s decision denying her
benefits. Id. at 681-82. The Ninth Circuit observed that, “[a]ssuming without deciding that this
omission constituted legal error, it could only have prejudiced [plaintiff] in step three (listing
impairment determination) or step five (RFC) because the other steps, including this one, were
resolved in her favor.” Id. Because the plaintiff did not identify any legal errors at either of
those steps, the Ninth Circuit concluded that “[u]nder the circumstances . . ., the ALJ did not
commit reversible error by not considering [plaintiff’s] obesity in step two of the sequential
analysis.” Id. at 682. In other words, so long as there is no indication that the impairments
allegedly omitted at step two would have met a listing at step three and the ALJ properly
considered the omitted impairments in evaluating the plaintiff’s RFC at step five, then the Ninth
Circuit held that the legal error at step two is harmless. See id.
The Sixth Circuit reached the same conclusion in Maziarz v. Secretary of Health and
Human Services, 837 F.2d 240 (6th Cir. 1987), determining that it was “unnecessary to decide”
whether the ALJ had committed a legal error when he failed to find the plaintiff’s cervical
condition constituted a severe impairment at step two. Id. at 244. In reaching this conclusion,
the Sixth Circuit emphasized that the ALJ had found that the plaintiff’s other conditions were
severe and had therefore continued with the remaining steps in the sequential analysis. Id. at
244. The Maziarz Court concluded, “[s]ince the Commissioner properly could consider
17 claimant’s cervical condition in determining whether claimant retained sufficient residual
functional capacity to allow him to perform substantial gainful activity, the Commissioner’s
failure to find that claimant’s cervical condition constituted a severe impairment could not
constitute reversible error.” Id. Similarly, in Carpenter v. Astrue, 537 F.3d 1264 (10th Cir.
2008), the Tenth Circuit rejected the plaintiff’s argument that the decision below should be
reversed because the ALJ applied the wrong legal standard at step two when he failed to consider
whether her impairments were severe both individually and in combination. Id. at 1265-66. The
Tenth Circuit concluded that “any error [at step two] became harmless when the ALJ reached the
proper conclusion that [plaintiff] could not be denied benefits conclusively at step two and
proceeded to the next step in the evaluation sequence.” Id. at 1265-66.
The Court is persuaded by the reasoning of these decisions and agrees that, in this case,
any legal error made at step two does not require reversal. Even assuming that the ALJ legally
erred when he determined that Plaintiff’s borderline intellectual functioning and depression were
non-severe, such an omission did not prejudice Plaintiff because the ALJ specifically found that
Plaintiff’s seizure disorder and hypertension were severe, AR at 27, 30, and therefore continued
to consider the remaining steps in the sequential analysis, see id. at 27-31.
Although Plaintiff may have been able to demonstrate prejudice if she could show that
either of these omitted impairments would have been found to meet a listing at step three, there is
no indication in the record that either Plaintiff’s depression or borderline intellectual functioning
satisfied any enumerated listing. Plaintiff appears to recognize as much as she makes no
argument in her current briefing that either her depression or borderline intellectual functioning
meet or equal one of the listings. See generally Pl.’s Mot. Indeed, despite making no explicit
18 finding that Plaintiff’s borderline intellectual functioning and depression were severe, it is clear
that the ALJ nonetheless considered whether these impairments met a listing and found that
neither satisfied this third step. Specifically, with respect to Plaintiff’s borderline intellectual
functioning, the ALJ concluded that this impairment did not satisfy the Section 12.05 (mental
retardation) listing “because the claimant does not have significantly sub-average intellectual
function with deficits in the adaptive functioning initially manifested during her developmental
period.” A.R. at 27. With respect to Plaintiff’s depression, although the ALJ did not expressly
identify the Section 12.04 (affective disorders) listing, it is nonetheless clear that he evaluated
Plaintiff’s impairment under the criteria set forth in Section 12.04 and found that Plaintiff’s
depression did not meet or equal the listing. Section 12.04 requires consideration of, inter
alia, whether the individual’s depressions results in “marked restriction of activities of daily
living,” “marked difficulties in maintaining social functioning,” “marked difficulties in
maintaining concentration, persistence, or pace,” or “repeated episodes of decompensation, each
of extended duration.” In this case, the ALJ determined that “the evidence of record shows that
the claimant’s depression causes functional limitations that result in only mild restrictions of
activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in
maintaining concentration, persistence, or pace; and no repeated episodes of decompensation of
extended duration.” A.R. at 30.
Accordingly, even absent a finding of severity at step two, the ALJ considered whether
Plaintiff’s borderline intellect and depression met or equaled a listing, as required in step three.
Plaintiff makes no argument that the ALJ’s conclusions on this point are in error nor does she at
any point argue that her borderline intellectual functioning and depression did in fact meet or
19 equal the impairments listed in Appendix 1, Subpart P, No. 4. See generally Pl.’s Mot. As such,
even assuming that the ALJ committed a legal error at step two, Plaintiff was not prejudiced by
this error at step three of the sequential analysis.
Nor did any such legal error prejudice Plaintiff at step five of the evaluation. As is
evident from review of the ALJ’s decision, he considered Plaintiff’s borderline intellectual
functioning and depression in setting forth her RFC at step five. See A.R. at 27-30. Plaintiff
appears to acknowledge as much; while she argues that the ALJ failed to consider her depression
and borderline intellect at step two, she makes no similar argument in challenging the ALJ’s
analysis at step five. See generally Pl.’s Mot. at 9-16. Regardless, for the reasons set forth
below, the Court finds that the ALJ properly assessed Plaintiff’s RFC and considered all of her
impairments — including her depression and borderline intellectual functioning — at step five of
the analysis. Accordingly, the Court need not determine whether the ALJ’s finding of non-
severity as to Plaintiff’s depression and borderline intellect was legal error, as any alleged error at
step two did not prejudice Plaintiff and therefore does not require reversal.
B. The Residual Functional Capacity Analysis at Step Five
To make a determination under steps four and five of the disability analysis, which
involve an inquiry into the claimant’s ability to return to past work and a determination of
whether future employment of any variety is possible, see 20 C.F.R. §§ 404.1520, 416.920, the
ALJ must engage in a residual functional capacity (“RFC”) analysis. 20 C.F.R. §§ 404.1545,
416.945; SSR 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims, 1996 WL 374184 at *2 (S.S.A. July 2, 1996). An RFC is
“an administrative assessment of the extent to which an individual’s medically determinable
20 impairment(s), including any related symptoms, such as pain, may cause physical or mental
limitations or restrictions that may affect his or her capacity to do work-related physical or
mental activities.” SSR 96-8p, 1996 WL 374184 at *2. The ALJ must explain how he
considered and resolved ambiguities in the record with regard to the ultimate RFC decision.
Butler, 353 F.3d at 1000.
Plaintiff raises three main arguments challenging the ALJ’s RFC analysis. First, she
argues that the ALJ was required to, but did not, perform a function-by-function assessment of
Plaintiff’s ability to work, and include a narrative discussion of how the evidence supported the
ALJ’s RFC conclusion. Pl.’s Mot. at 9-13. Second, she argues that the ALJ failed to include any
limitations in the RFC that addressed Plaintiff’s hypertension and seizure disorder, which
impairments the ALJ had previously determined to be severe. Id. at 9. Finally, she argues that
the ALJ failed to engage in a detailed assessment of Plaintiff’s capacity to perform the mental
demands of work. Id. at 13-16. The Court finds that these arguments are without merit.
First, the ALJ performed a sufficient function-by-function assessment and provided a
sufficient narrative in support thereof. Plaintiff is correct that SSR 96-8p requires the ALJ to
assess a claimant’s “work-related abilities on a function-by-function basis” and instructs that
“[o]nly after that may RFC be expressed in terms of exertional levels of work . . . .” SSR 96-8p,
1996 WL 374184 at *1.3 However, SSR 96-8p also provides that “[w]hen there is no allegation
3 SSR 96-8p specifically instructs the ALJ to consider the functions in paragraphs (b), (c), and (d) of 20 C.F.R. § 416.945, which include physical abilities (sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions including manipulative or postural functions), mental abilities (understanding, remembering, carrying out instructions, responding appropriately to supervision, coworkers, and work pressures in a work setting), and other abilities affected by impairments (including specifically, impairments of vision). 20 C.F.R. § 416.945.
21 of a physical or mental limitation or restriction of a specific functional capacity, and no
information in the case record that there is such a limitation or restriction, the adjudicator must
consider the individual to have no limitation or restriction with respect to that functional
capacity.” Id.
In this case, the ALJ performed a sufficient function-by-function assessment of all
functions for which the record included evidence of limitations. “[A]fter careful evaluation of
the evidence,” the ALJ concluded that Plaintiff “retains the residual functional capacity to
perform a reduced range of light level work. The claimant’s capacity to perform a full range of
light level work is diminished, because she requires unskilled work, with a sit/stand option and
limited general public contact.” A.R. at 27. The ALJ’s conclusion is supported by substantial
evidence in the record. As indicated previously, Plaintiff’s most recent physical residual
functional capacity assessment, conducted on April 5, 2002, indicated that Plaintiff could lift or
carry 50 pounds occasionally and 25 pounds frequently; was able to sit, stand, or walk for about 6
hours in an 8-hour workday; was able to able to push or pull an unlimited amount; and had
several environmental limitations, but no postural, manipulative, visual or communicative
limitations. A.R. at 523-30. “Light work,” which the ALJ found Plaintiff capable of performing,
by definition involves “lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). The record evidence therefore
supports the ALJ’s RFC conclusion that Plaintiff could perform “light work.” Indeed, as the
Commissioner points out, it appears that the ALJ could have found Plaintiff capable of
performing “medium work,” which “involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds.” Id. § 416.967(c).
22 While the ALJ did not specifically discuss the Plaintiff’s physical abilities (sitting,
standing, walking, lifting, carrying, pushing, pulling, or other physical functions including
manipulative or postural functions), in reaching this conclusion, the Court finds that this
omission was not error. In this case, there is no evidence in the record indicating that Plaintiff
had any limitation or restriction on her physical capabilities — a point Plaintiff does not dispute.
Given the absence of any indication that Plaintiff’s ability to perform these tasks was somehow
limited, the ALJ was not required to specifically address each of these abilities in his opinion.
See SSR 96-8p, 1996 WL 374184 at *1 (“[w]hen there is no allegation of a physical or mental
limitation or restriction of a specific functional capacity, and no information in the case record
that there is such a limitation or restriction, the adjudicator must consider the individual to have
no limitation or restriction with respect to that functional capacity”); see also Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a function-by-function analysis for medical
conditions or impairments that the ALJ found neither credible nor supported by the record is
unnecessary.”); cf. Hartline v. Astrue, 605 F. Supp. 2d 194, 207 (D.D.C. 2009) (rejecting
argument that ALJ committed reversible error because he did not specifically list the work-
related functions itemized on the RFC). Thus, to the extent Plaintiff argues that the ALJ failed to
provide specific support for his findings with respect to her RFC and did not include a sufficient
narrative discussion of the evidence supporting his conclusions, such assertions are without
merit. Given the dearth of any evidence in the record indicating that Plaintiff had any physical
limitations, the ALJ’s discussion was sufficient.
Second, there is substantial evidence in the record supporting the ALJ’s finding that
Plaintiff’s seizure disorder and hypertension did not require additional physical limitations in her
23 RFC. As the ALJ observed and as Plaintiff does not dispute, the medical evidence in the record
“shows that [Plaintiff’s] seizures are well controlled when [she] is compliant with prescribed
treatment and does not abuse alcohol or cocaine.” A.R. at 27. Given this fact, the ALJ
reasonably omitted any limitation in the RFC relating solely to Plaintiff’s seizure disorder. Cf.
Jones v. Astrue, 654 F. Supp. 2d 37, 42 (D.D.C. 2009) (“‘If a symptom can be reasonably
controlled by medication or treatment, it is not disabling.’”) (quoting Gross v. Heckler, 785 F.2d
1163, 1166 (4th Cir.1986)); Banks v. Astrue, 537 F. Supp. 2d 75, 79 (D.D.C. 2008) (same)
(citing cases). Similarly, as the ALJ noted in his opinion, the evidence in the record indicated
that Plaintiff took medication for her hypertension and that it was “under good control.” A.R. at
480-81. Accordingly, because Plaintiff’s hypertension was controlled by medication, the ALJ
omission of any specific limitations in the RFC relating to the impairment was also not error.
Third, the ALJ sufficiently considered Plaintiff’s capacity to perform the mental demands
of work in assessing her RFC. The ALJ explicitly rejected Plaintiff’s assertion that her RFC
should include “the additional limitations of poor ability to concentrate on job tasks, poor social
judgment and work stress that results in less than 80 percent performance level required by
employers,” finding that “claimant does not possess these limitations.” A.R. at 29. Rather, the
ALJ concluded that Plaintiff’s “medical determinable impairments are reasonably anticipated to
cause some decrease in concentration, judgment and some loss of productivity if she has to
perform more than simple routine unskilled work.” Id. Because Plaintiff’s RFC was already
limited to unskilled work with limited general public contact, no further limitations were
necessary.
In reaching this conclusion, the Court finds that the ALJ considered the relevant medical
24 evidence, identified any inconsistencies in the record, and adequately explained how he arrived at
his conclusions. Specifically, the ALJ explained his conclusion as follows:
The claimant has been diagnosed as having a depressive disorder. Little weight was given to Dr. Publicker’s opinion that the claimant is disabled due to psychiatric and medical reasons because it is not supported by objective medical evidence and it is inconsistent with the other evidence of record. In April 2001, the claimant experienced symptoms of depression due to the loss of her boyfriend. Later, in that same month, her attending physician noted that she was prescribed Paxil, but she took it sporadically which indicates noncompliance with prescribed treatment. On mental status examination, she was not suicidal nor psychotic, although she had depressed mood and affect. In August 2001, Dr. Schiff also observed that the claimant was alert and oriented and showed no signs of any psychotic symptoms or thought disorder during testing despite her reports of hallucinations in the past. In June 2002, when Dr. Publicker examined the claimant, she ha[d] no hallucinations or delusion and she had no thought process disturbance. Although she had some decrease in her ability to concentrat[e] this was not substantiated by objective testing and he noted that claimant’s memory was intact. Dr. Publicker’s own findings indicate that the claimant’s mental impairments do not prevent her from performing simple unskilled work with limited general public contact. Moreover, the claimant’s most recent evaluation by Dr. Firbous, in August 2004, shows that she continues to be capable of performing simple unskilled work. For instance, her behavior was appropriate. Her characteristic of speech was coherent. She reported hallucinations. Her thoughts were logical and goal directed. Her memory was intact. Although Dr. Firbous noted that the claimant had poor concentration, her insight was poor, and she is likely to decompensate further due to stress of work, his opinion was based upon the claimant’s guarded prognosis due to non-compliance and alcohol abuse.
Id. at 29-30. Based on this analysis, the ALJ further concluded that:
[T]he evidence of record shows that claimant’s depressions causes functional limitations that result in only mild restrictions of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation of extended duration. Because depression does not impose significant restrictions in her ability to perform basic work activities, the undersigned finds that depression is non- severe. Great weight was given to the opinion of the psychological consultant [Dr. Cott] that the claimant has the capacity for routine work. This opinion is consistent with Doctors Publicker’s and Firbous’ findings on mental status examination.
Id. at 30.
25 While Plaintiff contends that the ALJ failed to provide a detailed assessment of her
mental RFC, even a cursory glance at the passage above demonstrates that the ALJ carefully and
thoroughly considered the evidence in the record and provided a particularized assessment of her
alleged impairment due to depression. Similarly, the Court finds that the ALJ identified
inconsistencies in the record and explained how he arrived at his conclusion. The ALJ
acknowledged Dr. Publicker’s opinion that Plaintiff was disabled as the result of her psychiatric
and medical impairments, but determined that this conclusion was not well-supported by the
evidence in the record. See id. Despite Plaintiff’s assertions that the ALJ failed to provide a
proper explanation for doing so, a review of the ALJ’s opinion reveals otherwise. Finally, as
Plaintiff fails to identify any specific errors in the ALJ’s assessment of her mental RFC, other
than the general claims addressed above, see Pl.’s Mot. at 13-16, the Court finds that the ALJ
sufficiently considered Plaintiff’s mental impairments in assessing her RFC.
IV. CONCLUSION
Based on the foregoing review of the relevant law and the administrative record, the
Court finds that the Administrative Law Judge applied the correct legal standards and relief on
substantial evidence when he denied Plaintiff’s claim for Supplemental Security Income
Benefits. The Court shall therefore DENY Plaintiff’s [6] Motion for Judgment of Reversal and
shall GRANT Defendant’s [10] Motion for Judgment of Affirmance. This case shall be
dismissed in its entirety. An appropriate Order accompanies this Memorandum Opinion.
Date: June 16, 2010
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge