EMMET G. SULLIVAN, District Judge.
Plaintiff Alfelton Turner seeks reversal of the final decision by Defendant Carolyn W. Colvin
Plaintiff is a resident of the District of Columbia. Compl. ¶ 2. On December 2, 2008, Plaintiff filed applications for disability and disability insurance benefits
Once an individual has had a hearing, he may bring a civil action to review the Commissioner's final decision in the district court for the judicial district in which he resides. Social Security Act, 42 U.S.C. § 405(g). On October 13, 2010, an Administrative Law Judge ("ALJ") held a hearing at which Plaintiff and a Vocational Expert ("VE") testified. AR at 13, 31. The ALJ issued a decision denying benefits on November 23, 2010. AR at 26. The Appeals Council denied review on May 11, 2012, rendering the ALJ's decision the final decision of the Commissioner. AR at 1. Therefore, Plaintiff's claim is ripe for judicial review before this Court. See 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c); AR at 2-3.
To qualify for disability insurance benefits and supplemental security income under Titles II and XVI of the Act, Plaintiff must first establish that he is "disabled." See 42 U.S.C. §§ 423(a)(1)(E). Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable 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); see id. § 1382c(a)(3)(A). Plaintiff is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Administrative Law Judge ("ALJ") must conduct a five-step sequential evaluation to assess a claimant's alleged disability. See 20 C.F.R. §§ 404.1520, 416.920 (2012). The claimant bears the burden of proof at the first four steps, and the burden shifts to the Commissioner at step five. Butler v. Barnhart, 353 F.3d 992, 997 (D.C.Cir.2004).
First, the ALJ must find that claimant is not presently engaged in "substantial gainful" work. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, he must find that claimant has a "severe impairment" that "significantly limits" his ability to do basic work activities. Id. §§ 404.1520(c), 416.920(c). Third, if the ALJ finds that claimant suffers from an impairment that meets one of those listed in 20 C.F.R. § 404, Subpart P, Appendix 1, he is deemed disabled and the inquiry ends. Id. §§ 404.1520(d), 416.920(d). If claimant's impairment does not meet one of those listed in the Appendix, the ALJ determines his Residual Functional Capacity ("RFC") based upon all the evidence of record. Id. §§ 404.1520(e), 416.920(e). Once he has made a determination of the claimant's RFC, the ALJ moves on to step four to determine whether his RFC allows him to do work that he used to do, which is called "past relevant work." Id. §§ 404.1520(f), 416.920(f). If the claimant's RFC does not allow him to do past relevant work, the ALJ moves on to step five, where he determines whether the claimant's RFC allows him to adjust to any other work, given his age, education, and
In making its final decision to deny Plaintiff disability benefits, the ALJ relied on the evidence contained in hearing testimony and the evidence that Plaintiff submitted during his application for benefits, including medical records and evaluations from various doctors. See AR at 13-26.
According to the hearing testimony, Plaintiff was fifty-four years old on October 13, 2005, the date that he alleges onset of disability. See id. at 35-36. Plaintiff was covered by disability insurance through December, 31, 2007. Id. at 36. For approximately two years prior, he had been working to set up and move office furniture. Id. at 35. In October 2005, Plaintiff was sent to prison, id. at 36, for a drug-related violation of his probation, id. at 45-46, 291. After serving two and a half years in prison, he was released in April 2008. Id. at 36, 294-295.
Plaintiff receives mental health treatment through the Veterans Administration. AR at 34. On June 20, 2008, at his first mental health evaluation subsequent to release from prison, he was diagnosed with moderately severe major depressive disorder, cocaine dependence in remission, alcohol abuse, and adjustment disorder. Id. at 298-299. The evaluation noted that Plaintiff has a history of adjustment disorder and substance abuse, that he briefly attended a substance abuse rehabilitation program in 2003 and 2005, and that he received inpatient psychiatric care in 2004. Id. at 295. Plaintiff admitted to having had a beer that day, and stated he did not need an alcohol recovery program. Id. at 299. He also reported that he was on "red alert" when in public, and suspicious of others because of his military and work experience. Id. at 297.
Plaintiff briefly attended group therapy, but quit because he did not trust people. AR at 288. He began individual psychotherapy with Raphael Mbachu, M.D. in July 2008. Id. at 287-288. At his first visit, he cried "profusely" and complained of lacking motivation, becoming easily frustrated, being irritable, and having erratic sleep with nightmares riddled with violence. Id. at 288. Dr. Mbachu started Plaintiff on Zoloft for depression, Abilify for his mood, and Benadryl for insomnia. Id. at 289.
On August 20, 2008, Plaintiff reported "doing well" and credited the medication for feeling better. AR at 283. His sleep was "restorative," he said that he had reduced his alcohol intake to two beers a day, and he reported getting along better with his loved one. Id. at 283. He looked forward to going to a job fair the following day. Id. at 284.
At a follow-up visit in September, Dr. Mbachu noted that Plaintiff was "still stabilizing" on his medications. AR at 280. Plaintiff reported "doing fine and sleeping okay." Id. at 279. He did not find the job fair helpful and was worried about his finances. Id. Dr. Mbachu stressed complete abstinence from alcohol. Id. at 280. He also suggested an alcohol rehabilitation program, but Plaintiff declined. Id.
The following month, Plaintiff reported a stable mood, but complained of feeling frustrated for not being able to find a job and feeling financial pressure. AR at 277. He admitted to drinking beer three to four times a week. Id. Dr. Mbachu once again stressed abstinence and suggested alcohol treatment, but Plaintiff declined. Id. By
Hoorie Siddique, Ph.D., conducted a psychological evaluation on behalf of the State agency on January 28, 2009. AR at 237-240. Plaintiff told Dr. Siddique that he consistently had problems getting along with people, particularly with supervisors. Id. at 238. He said he refused all mental health treatment while incarcerated and resumed treatment upon release in 2008. Id. Plaintiff also acknowledged a history of alcohol and crack cocaine abuse and dependence. Id. Based on a range of cognitive tests, Dr. Siddique found that much of Plaintiff's cognitive functioning was intact, with only "mild weaknesses." Id. at 239. He also determined that Plaintiff's memory did not suffer significant damage from substance abuse. Id. He noted that Plaintiff needed ongoing mental health treatment and diagnosed him with alcohol dependence in early partial remission, crack cocaine dependence in sustained full remission, and possible mood and personality disorders. Id. at 240.
Gemma Nachbahr, Ph.D., a State agency psychiatric consultant, evaluated Plaintiff on February 9, 2009. Dr. Nachbahr completed a mental residual functional capacity ("RFC") form and opined that Plaintiff had moderate difficulties in maintaining social functioning and in maintaining concentration. AR at 251. Dr. Nachbahr concluded that Plaintiff appeared mentally capable of performing work-related activities with sustained abstinence from drugs and alcohol. Id. at 257.
At his next visit with Dr. Mbachu on February 10, 2009, Plaintiff reported "doing okay," but was bothered by not having a job or money. AR at 270. He reported feeling better in response to the increase in medication. Id.
On April 24, 2009, Plaintiff asked to participate in "CWT," a job training and matching program for veterans, but was told by his nurse practitioner, Marguerite McGarrah, N.P., that he would first have to complete a substance abuse rehabilitation program. AR at 262. McGarrah reported a "heavy odor" of alcohol on his breath, id. at 264, and opined that she did not think he could work unless he was in a substance abuse program with very frequent toxicology screening tests, id. at 262.
Patricia Cott., Ph.D., a State agency psychologist, evaluated Plaintiff on June 1, 2009 and found that with full and sustained abstinence from substances, AR at 321, he would only have mild limitations in daily activities, social functioning, and concentration, id. at 319.
On June 25, 2009, Plaintiff reported to Dr. Mbachu that he was "holding on" and still had no job. AR at 340. He had run out of medication the month before, and was feeling paranoid. Id. Three months later, he reported that things were slow without a job or income, and that he occasionally found temporary jobs helping people move. Id. at 336. He said that he drank sparingly because he could not afford to drink. Id. Dr. Mbachu encouraged Plaintiff to look for jobs at home improvement stores and food stores as a stocker. Id. at 337. On November 3, 2009, Plaintiff reported "doing well" despite financial difficulties. Id. at 332. He continued to look for a job, continued to drink alcohol once a week, and took his medication without side effects. Id. Dr. Mbachu encouraged him to stop using alcohol and to monitor his anger. Id. at 333.
On May 18, 2010, Dr. Mbachu completed an RFC questionnaire that Plaintiff had given him. He gave Plaintiff a "fair" prognosis
At the time of his hearing before the ALJ on October 13, 2010, Plaintiff was fifty-nine years old. See AR at 35. Plaintiff has an associate degree in criminal administration, id. at 34, and his past relevant work includes jobs as a library technician, day laborer, and department store worker. Id. at 53, 219.
At the hearing, the ALJ asked the Vocational Expert what kind of work a hypothetical individual with Plaintiff's RFC and limitations could perform. The VE testified that such an individual could perform past relevant work as a department store worker and other "medium, unskilled" jobs, which include work as a general laundry laborer, kitchen helper, and hand packager. AR at 54-55. The VE testified that approximately 2,000 general laundry laborer jobs, 7,500 kitchen helper jobs, and 500 hand packager jobs existed in the metropolitan Washington, D.C. area. Id. at 55. The VE also said, however, that an individual would not be a competitive candidate for these jobs if his impairment or treatment caused him to be absent from work for two days per month. Id.
The ALJ found at step one of the sequential evaluation that Plaintiff had not engaged in substantial gainful work since October 13, 2005. AR at 15. At step two, the ALJ found that Plaintiff had severe impairments that caused more than minimal functional limitations on his ability to do basic work activities: mild degenerative joint disease, affective disorder, personality disorder, and substance abuse disorder. Id. At step three, the ALJ found that Plaintiff's impairments did not meet any of those listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. Id. at 15-16.
At step four, the ALJ found that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. Sections 404.1567(c) and 416.967(c). AR at 17. "Medium work" involves lifting no more than fifty pounds at a time and frequent lifting or carrying of up to twenty-five pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c) (2013). An individual who can do medium work can also do sedentary and light work. Id.
The ALJ made three specific findings regarding Plaintiff's RFC. First, the ALJ found that Plaintiff has mental limitations, but can be expected or required to understand, remember, and execute commands with simple instructions. AR at 17. Second,
At step four, the ALJ concluded that Plaintiff's RFC allows him to perform past relevant work as a department store worker. AR at 24. At step five, the ALJ concluded that his RFC, age, education, and work experience allows Plaintiff to adjust to jobs that exist in significant numbers locally and nationally. Id. at 25. Because he found that Plaintiff could do past relevant work and also adjust to work that exists in significant numbers, the ALJ determined that Plaintiff was not disabled under the Act. Id. at 26.
Judicial review in this Court is statutorily limited to whether the Commissioner, acting through the ALJ, correctly applied the relevant law, and whether there is substantial evidence to support the Commissioner's final decision that Mr. Turner was not disabled. See 42 U.S.C. § 405(g); Butler, 353 F.3d at 999. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). It "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 Florida Mun. Power Agency v. F.E.R.C., 315 F.3d 362, 366 (D.C.Cir. 2003) (internal quotation omitted)). A court's review of administrative decisions for substantial evidence requires "careful scrutiny of the entire record." Brown v. Bowen, 794 F.2d 703, 705 (D.C.Cir.1986). But a court "may not reweigh the evidence presented to it ... [or] replace the [Commissioner's] judgment concerning the weight and validity of the evidence with its own." Davis v. Heckler, 566 F.Supp. 1193, 1195 (D.D.C.1983).
Plaintiff does not dispute the ALJ's conclusions under the first three steps of its sequential evaluation. Pl.'s Mem. Supp. Mot. J. Reversal at 13, ECF No. 9. He does, however, dispute the ALJ's conclusion at step four that Plaintiff can perform past relevant work, and the ALJ's conclusion at step five that Plaintiff can adjust to other available work. Id. at 14.
Plaintiff's challenge to these two conclusions rests upon the argument that the ALJ made three errors in evaluating Dr. Mbachu's opinion evidence. First, Plaintiff argues that the ALJ should have given controlling weight to the entirety of Dr. Mbachu's opinion rather than rejecting the doctor's opinion that Plaintiff would miss two days of work each month due to his impairments and treatment. Pl.'s Mem. at 14. Second, he argues that the ALJ should have given more weight to Dr. Mbachu's opinion that Plaintiff was seriously limited in two areas of basic work function. Id. at 15. Third, Plaintiff argues that had the ALJ done these two things (one: given controlling weight to Dr. Mbachu's opinion about absences per month, and two: given more weight to Dr. Mbachu's opinion about Plaintiff's serious limitations), he would have found that Plaintiff could not do past relevant work or any other work, and was therefore disabled. Id. at 19-20. The Commissioner refutes each of these claims.
Plaintiff contends that the ALJ erroneously rejected the portion of Dr. Mbachu's opinion that stated Plaintiff would miss two days of work each month due to his impairments and treatment. Id. at 14. Plaintiff claims that the ALJ had to give this opinion controlling weight because Dr. Mbachu is Plaintiff's "treating source." Pl.'s Mem. at 15. A "treating source" is a psychologist or physician who has provided medical treatment or evaluation to Plaintiff and has an ongoing relationship with him. See 20 C.F.R. §§ 404.1502, 416.902. Plaintiff further claims that Social Security Ruling ("SSR") 96-2p interprets Sections 404.1502 and 416.902 of the Social Security regulations to prohibit the ALJ from picking which portions of a treating source's medical opinion to accept or reject. Pl.'s Mem. at 15 (citing generally SSR 96-2p: Policy Interpretation Ruling Title II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188 (July 2, 1996)).
The Commissioner responds that it (1) it correctly declined to give Dr. Mbachu's entire opinion controlling weight, Def.'s Mem. at 11-12, and that (2) SSR 96-2p does not prohibit the ALJ from crediting some parts of a treating source's opinion and rejecting other portions.
"Because a claimant's treating physicians have great familiarity with his condition, their reports must be accorded substantial weight." Butler, 353 F.3d at 1003. (citation and internal quotation omitted). "A treating physician's [opinion] is binding on the fact-finder unless contradicted by substantial evidence." Id. (citation and internal quotation omitted). The ALJ must provide "good reasons" for the weight it gives to a treating source's opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-2p at *5. The ALJ's reasons must be "sufficiently specific to make clear to [the court]" why the ALJ gave it that weight. SSR 96-2p at *5. If the ALJ "rejects the opinion of a treating physician [he must] explain his reasons for doing so." Butler, 353 F.3d at 1003. (citation and internal quotation omitted). Contrary to Plaintiff's argument, Pl.'s Mem. at 15; Pl.'s Resp. to Def.'s Mot. at 5, the ALJ is not required to explicitly address four factors described in SSR 96-2p to analyze Dr. Mbachu's opinion as a treating source.
Dr. Mbachu's opinion that Plaintiff would require two days' absence from work each month is an important component
The ALJ found that:
AR at 19.
As noted earlier, to be considered disabled under the Act for the alleged period of disability from October 13, 2005 to date, Plaintiff's impairments must be severe enough to render him unable to do work he had been doing. See 42 U.S.C.A. §§ 423(d)(1)(A), 1382c(a)(3)(B). Plaintiff cannot only rely on his personal statements to establish the severity of his impairments. Id. §§ 423(d)(5)(A), 1382c(a)(3)(H)(i). Rather, he must also furnish objective medical evidence of the symptoms established by medically acceptable clinical or laboratory techniques. Id. But the ALJ cannot dismiss Plaintiff's credibility based solely on the lack of objective medical evidence. See SSR 96-7p: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of An Individual's Statements, 1996 WL 374186, at *1 (July 2, 1996); Sloan v. Astrue, 538 F.Supp.2d 152, 156-157 (D.D.C.2008) (finding that the ALJ erred in dismissing Plaintiff's subjective claims of pain based solely on the absence of such claims from the medical reports). The ALJ must provide specific reasons for why he finds Plaintiff's credibility regarding the severity of his impairments undermined by the lack of objective medical evidence. See SSR 96-7p at *2; Brown v. Barnhart, 408 F.Supp.2d 28, 37 (D.D.C.2006).
The ALJ noted that the record was "devoid of objective clinical evidence" to support Plaintiff's statements regarding the
In Brown, the ALJ acknowledged the plaintiff's history of depression, but noted that the plaintiff told her doctor that she did not need to see a psychiatrist. 408 F.Supp.2d at 37. The ALJ also noted that despite the plaintiff's complaints regarding the severity of her symptoms, she was still able to grocery shop and do other household activities associated with the housekeeping work that the ALJ determined she could do. Id. The Court in Brown decided that the ALJ properly found that the plaintiff's alleged symptoms were "not very credible" because the ALJ had made this finding based on an analysis of the record. Id.
Similarly, the record here also supports the ALJ's finding that there are "troubling issues," AR at 19, with Plaintiff's credibility. Like the plaintiff in Brown, Plaintiff here also voluntarily refused medical treatment for his mental illness for part of the period in which he alleges disability. See id. The ALJ acknowledges that refusal of treatment itself could be a symptom of mental illness. Id. But like the plaintiff in Brown, here, Plaintiff's own actions during the period of alleged disability also undermine his credibility regarding his symptoms to an extent. Dr. Mbachu noted that Plaintiff was able to occasionally find odd jobs or temporary jobs despite the alleged severity of his impairments. See id. at 20 (citing AR at 336). In addition, Plaintiff failed to qualify for a work program, not because of his impairments, but because he declined to complete a substance abuse treatment program. Id.; see also AR at 277, 280. Plaintiff also continued to drink against Dr. Mbachu's advice to abstain. Id. at 20. Although the ALJ acknowledged that Plaintiff's alcohol use could be characterized as a symptom of his substance abuse disorder, he found his statements regarding the severity of his depressive symptoms were further undermined by his refusal to comply with a treatment program. Id. at 20. It appears that the ALJ here provided specific reasons to question the credibility of Plaintiff's statements regarding his symptoms. The ALJ's reasons for doing so were grounded in evidence in the record. Therefore, substantial evidence supports the ALJ's finding that Plaintiff's reported symptoms were "relatively mild."
The ALJ explained that Dr. Mbachu's treatment notes do not support Dr. Mbachu's opinion that Plaintiff would require two days of absence from work each month. Rather, Dr. Mbachu's notes reflect the "efficacy of psychotropic medication." See AR at 24. The ALJ noted that according to Dr. Mbachu's treatment record, Plaintiff's medication regimen "resulted in better sleep and produced improvement in his depressive symptoms." Id. at 20. He also noted that Dr. Mbachu's treatment notes indicated only minor nausea as a result of Plaintiff's psychotropic medication, which contradicts Plaintiff testimony regarding alleged side effects. Id. Therefore, the doctor's treatment notes do not reflect substantial side effects from medication.
The record also provides substantial evidence to support the ALJ's claim that
The ALJ also explained that Dr. Mbachu's two days of absence opinion is inconsistent with the opinions of other doctors who evaluated Plaintiff. In analyzing the record, the ALJ accorded substantial weight to the opinion of Dr. Nachbahr, a State agency psychiatric consultant, who concluded that Plaintiff appeared mentally capable of performing work-related activities with sustained abstinence from drugs and alcohol. AR at 24. The ALJ found that Dr. Nachbahr's opinion is consistent with those of other doctors and medical practitioners who had evaluated Plaintiff. Id. First, the assessment of Dr. Cott, a State agency psychologist, generally supports Dr. Nachbahr's opinion. Id.; see AR at 319, 321 (finding that Plaintiff would only have mild limitations in daily activities, social functioning, and concentration with full and sustained abstinence from substances). Dr. Nachbahr's opinion is also consistent with the evaluation of Dr. Siddique, a psychologist that the State agency consulted. Id. at 24; see AR at 239 (finding that Plaintiff's cognitive functioning only had "mild weaknesses" and that his memory did not suffer significant damage from substance abuse). And Dr. Nachbahr's opinion is well supported by Nurse Practitioner McGarrah's assessment. Id. at 24; see AR at 262 (opining that Plaintiff could not work unless he was in a substance abuse program with very frequent toxicology screening tests). Therefore, none of the State agency medical consultants gave opinions that support Dr. Mbachu's two days of absence opinion.
Plaintiff claims that "[t]he only evidence inconsistent with Dr. Mbachu[`s] is that which was provided [by] State Medical Consultants." Pl.'s Mem. at 17. But this claim is without merit. Contrary to Plaintiff's claim, the record shows that Dr. Mbachu's own treatment records are consistent with the opinions of Dr. Nachbahr, Dr. Cott, and Nurse Practitioner McGarrah that Plaintiff could work with sustained abstinence from alcohol. Dr. Mbachu's treatment notes indicate that he had advised Plaintiff to abstain from alcohol use in September 2008, AR at 280, October 2008, id. at 277, and as late as September 2010, id. at 409. He also opined on Plaintiff's RFC form that alcohol contributed to Plaintiff's mental limitations because it "may impair memory and lead to mistakes." Id. at 357. Moreover, in September 2009, Dr. Mbachu had encouraged Plaintiff to look for jobs at home improvement stores and food stores as a stocker. Id. at 337. Accordingly, it appears that
Based on the foregoing analysis, the ALJ rejected Dr. Mbachu's opinion that Plaintiff required two days of absence a month. The ALJ was "not persuaded that Plaintiff's treatment could not be managed to accommodate his work schedule and minimize treatment absences." AR at 24. Because the ALJ provided good reasons with sufficient specificity for rejecting Dr. Mbachu's opinion that Plaintiff requires two days of absence each month, this Court finds that substantial evidence supports the ALJ's decision to do so.
Plaintiff's second argument with respect to the ALJ's evaluation of Dr. Mbachu's opinion evidence is that had the ALJ given proper weight to Plaintiff's "serious limitations" in his RFC finding, he would have found him disabled under the Act. Pl.'s Mem. at 18; Pl.'s Resp. at 7. The ALJ found that Plaintiff was "seriously limited, but not precluded" in two categories of basic work function: (1) his ability to maintain concentration, and (2) his ability to perform at a consistent work pace. See AR at 17. These two findings are directly attributed to Dr. Mbachu's opinion on the RFC form that he filled out. See id. at 355.
Plaintiff claims that the ALJ failed to analyze his two serious limitations under the Social Security Administration's Program Operations Manual System ("POMS"). Pl.'s Mem. at 18; Pl.'s Resp. at 6-7. POMS is an internal handbook for Social Security Administration ("SSA") employees to refer to when processing Social Security benefits. See SSA's Program Operations Manual System Home, https://secure.ssa.gov/apps10/ (last visited August 21, 2013). According to POMS, a "substantial loss of ability" in one of the following four basic work categories "would justify a finding of inability to perform other [unskilled] work even for persons with favorable age, education, and work experience:"
POMS Section: DI 25020.010, https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010 (last visited August 21, 2013). According to POMS, if Plaintiff indeed suffered a "substantial loss of ability," he would require a "sheltered work setting where special consideration and attention are provided." See id. Plaintiff claims that his two serious limitations qualify as a "substantial loss of ability" and therefore require him to work in a "sheltered work setting." See Pl.'s Mem. at 19.
POMS is an agency interpretation that has persuasive force but neither binds this court or the ALJ. See Power v. Barnhart, 292 F.3d 781, 786 (D.C.Cir.2002) ("[W]e grant an agency's interpretation only so much deference as its persuasiveness
Upon review of the administrative record, the Court finds that there is substantial evidence to support the ALJ's RFC determination at step four that Plaintiff's limitations do not render him unable to perform other work. The ALJ first claims that even though Dr. Mbachu found serious limitations in Plaintiff's ability to maintain concentration and work pace, Dr. Mbachu did not state that Plaintiff's symptoms prevent him from working. AR at 24. The ALJ supports this claim by referring to the plain meaning of Plaintiff's level of impairment in these two categories of work function. See id. As defined by the RFC form that Dr. Mbachu filled out, "seriously limited, but not precluded means ability to function is seriously limited and less than satisfactory, but not precluded in all circumstances." AR at 355. Plaintiff argues that the ALJ's determination that this level of severity is not enough to justify disability is "arbitrary." Pl.'s Resp. at 6. Neither party cites case law to support their respective positions.
This Circuit has not opined on the significance of the phrase "seriously limited, but not precluded" in a disability evaluation, but three Circuits have. See Colvin v. Barnhart, 475 F.3d 727, 731 (6th Cir. 2007) ("seriously limited, but not precluded" means that is able to perform to a limited degree in a vocational category); see also Cantrell v. Apfel, 231 F.3d 1104, 1107-1108 (8th Cir.2000) (finding that the term "fair" meant "seriously limited, but not precluded," which "does not, on its own, declare that the claimant cannot return to past work ... [but] requires a review of the entire record in order to judge whether the balance tips toward functional ability or toward disability"); but see Cruse v. U.S. Dep't. of Health & Human Serv.'s, 49 F.3d 614, 618 (10th Cir.1995) (finding that the phrase "is evidence of disability" for the purpose of meeting a listed disability), superseded on other grounds by regulation as stated in Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir.2008). In Colvin, the plaintiff argued that "seriously limited but not precluded" in a particular work function meant that she was unable to perform that work function and therefore precluded from past relevant work. Colvin, 475 F.3d at 731. Here, Plaintiff similarly argues that "seriously limited but not precluded" in a particular work function means that he requires a "sheltered work setting" and is therefore precluded from past relevant work and other work that exists. Pl.'s Mem. at 19. But, as the Sixth Circuit held in Colvin,
475 F.3d at 731. Colvin's plain meaning analysis of the phrase is particularly instructive here, where the relevant facts are
Like the form used in Colvin, Dr. Mbachu's mental RFC form also had the option of "no useful ability to function." AR at 355. Had Plaintiff been completely precluded, Dr. Mbachu had the option of checking the box labeled "no useful ability to function." See id. Moreover, like in Colvin, the VE here testified that Plaintiff could perform past relevant work despite being "seriously limited" in a number of work categories. Id. at 53-54. Accordingly, the Court finds that "seriously limited, but not precluded" in two areas of work function does not mean Plaintiff was completely precluded from work.
The Commissioner further points out that the other doctors who assessed Plaintiff's mental limitations also determined that Plaintiff could meet the demands of competitive employment. Def.'s Mem. at 16. The ALJ noted that every such doctor opined that Plaintiff had the ability to perform basic work-related activities with sustained abstinence from drugs and alcohol. See AR at 24. The Court finds that the record supports this characterization of Plaintiff's abilities. See id. at 239 (finding by Dr. Siddique that "Mr. Turner's pattern of performance showed indications of mild relative deterioration or impairment in some of his cognitive abilities ... but much of his cognitive functioning remains intact at this time"); see also AR at 251 (finding by Dr. Nachbahr that all of Plaintiff's functional limitations are either mild or moderate); and AR at 319 (finding by Dr. Cott that all of Plaintiff's functional limitations are mild). Moreover, the Commissioner points out that "nowhere in the record does any doctor suggest, nor does Plaintiff point to any evidence showing, that Plaintiff needs a sheltered work environment." Def.'s Mem. at 16 n. 5. Upon reviewing the record, the Court agrees with the Commissioner. Therefore, the Court finds that there was "substantial evidence" in the record for the ALJ to determine that Plaintiff's serious limitations in two categories of work function do not preclude him from all work.
The ALJ relied on the testimony of a VE to determine at step four that Plaintiff could perform past relevant work as a department store worker, and at step five that he could do other "medium, unskilled" jobs that exists in sufficient numbers in the national economy. AR at 24-25; see AR at 54-55. Plaintiff's third and final claim is that the ALJ erred at both steps. Pl.'s Mem. at 19; Pl.'s Resp. at 9. He argues that had the ALJ correctly accepted Dr. Mbachu's opinion regarding Plaintiff's absence from work and correctly weighed Plaintiff's serious work limitations, the ALJ would have found Plaintiff unable to perform either kind of work. Id. Because the ALJ's findings are based on the VE's testimony, the question here is whether the VE's testimony constitutes "substantial evidence" to support the ALJ's findings. The Court finds that it does.
The ALJ may consult a VE to determine whether Plaintiff's work skills can be used to do past relevant work or other work that exists in the national economy. 20 C.F.R. §§ 404.1560(b)(2), 404.1566(e). If the ALJ relies on VE testimony to assess Plaintiff's ability to do work, the ALJ "must accurately describe the claimant's physical impairments in any [hypothetical]
A VE's testimony concerning a plaintiff's ability to work may constitute substantial evidence where the testimony is given in response to a hypothetical question that accurately sets forth the plaintiff's physical and mental impairments. Colvin, 475 F.3d at 732; see Kearse v. Massanari, 73 Fed.Appx. 601, 604 (4th Cir.2003) (affirming denial of benefits where ALJ's hypothetical questions posed to the VE were supported by substantial evidence and ALJ considered all relevant evidence, including claimant's testimony, the objective medical evidence of record, and findings of the state agency physicians and psychologists); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (affirming denial of benefits where hypothetical question posed to the VE reflected all of the limitations the ALJ found credible and supported by substantial evidence).
Here, the hypothetical questions that the ALJ asked the VE reflected the serious limitations in maintaining attention and work pace that the ALJ in step four found Plaintiff to suffer from. See AR at 53-54. The ALJ's hypothetical questions also reflected Plaintiff's RFC, age, education, and work experience. See id. In response to the ALJ's questions, the VE testified that an individual with Plaintiff's serious limitations could perform his past work as a department store worker. Id. at 54. He also testified that such an individual with Plaintiff's RFC, age, education, and work experience could perform other "medium, unskilled" jobs, which include work as a general laundry laborer, kitchen helper, and hand packager. Id. at 54-55. The VE further testified that such work exists in significant numbers in the regional and national economy. Id. Based on the VE's testimony, the ALJ found at step four that Plaintiff could perform past relevant work, and at step five that Plaintiff could perform other work. See id. at 24-25. The Court finds that the ALJ's hypotheticals accurately reflected its determination of Plaintiff's limitations, RFC, age, education, and work experience. Moreover, as discussed earlier, the ALJ's determination of Plaintiff's limitations and RFC are supported by substantial evidence. In determining Plaintiff's RFC, the ALJ had considered Dr. Mbachu's treatment records, State agency doctor assessments, and Plaintiff's hearing testimony. Id. at 24. Therefore, the Court finds that substantial evidence also supports the ALJ's step four and step five conclusions regarding Plaintiff's vocational capabilities. See Colvin, 475 F.3d at 732; see also Kearse, 73 Fed.Appx. at 604.
The ALJ also asked the VE whether a hypothetical individual whose impairments and treatment would require him to be absent twice a month would be a competitive candidate for the jobs he could perform. The VE testified that such an individual would not be a competitive candidate. AR at 55. The ALJ here also accurately described Dr. Mbachu's opinion regarding Plaintiff's expected absence from work, so there is no question as to the validity of the VE's testimony in reliance on this opinion. See Butler, 353 F.3d at 1005. But, as discussed above, substantial evidence supports the ALJ's decision to reject Dr.
Based on the foregoing review of the administrative record and relevant law, the Court finds that the Administrative Law Judge applied the correct legal standards when he denied Plaintiff's claim for disability insurance benefits and supplemental security income and that the ALJ's conclusions are supported by substantial evidence. Accordingly, Plaintiff's Motion for Judgment of Reversal is
