UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TERRI COBB,

Plaintiff,

v.

MICHAEL J. ASTRUE, Civil Action No. 09-00734 (BAH) Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION

Terri Cobb, the plaintiff in this action, seeks a judgment reversing the denial of her claim

for Social Security Disability Insurance benefits by the Social Security Administration (the

“Administration”). Complaint ¶ 4. The plaintiff’s motion for a judgment of reversal and the

defendant’s motion for a judgment of affirmance are before the Court. After carefully

considering the plaintiff’s complaint, the administrative record, the parties’ motions, and all

memoranda of law and exhibits relating to those motions, the Court grants the plaintiff’s motion,

denies the defendant’s motion, and remands this case to the Administration for the reasons

explained below.

I. Factual and Procedural Background

The plaintiff is a 45-year-old woman with a high school education and additional training

as an electrician. Administrative Record (“A.R.”) at 58, 343. She previously worked as an

electrician. Id. at 343. According to the plaintiff, on June 10, 2003, she was injured in a work-

related accident when she fell from a ladder. Id.; Mem. in Supp. of Pl.’s Mot. for J. of Reversal

(“Pl.’s Mem.”) at 2. On June 6, 2005, the plaintiff filed an application for disability insurance benefits

pursuant to Title II of the Social Security Act.1 A.R. at 78. She alleged disability commencing

August 9, 2004 based on arthritis, back and neck pain, and depression. Id. at 19, 58-60, 122-23.

The plaintiff’s claim for disability was denied initially and denied again upon

reconsideration. Id. at 44-47, 50-53. Thereafter, she requested a hearing before an

Administrative Law Judge (the “ALJ”), which was held on April 2, 2008. Id. at 19. The

plaintiff, represented by counsel, and a vocational expert testified at the hearing. Id. at 16-26.

The ALJ denied the plaintiff’s request for benefits by decision dated July 14, 2008. Id.

The plaintiff requested that the Appeals Council review the decision of the ALJ, but, on

February 20, 2009, the Appeals Council determined that there was no basis for granting the

request for review, rendering the ALJ’s decision the final decision of the Commissioner of Social

Security. Id. at 5-8.

On April 21, 2009, the plaintiff filed this action seeking reversal or remand of the

Administration’s final decision denying her benefits. Her motion for judgment of reversal or

remand was filed on January 9, 2010. The plaintiff argues that the final decision of the

Administration “fails to be supported by substantial evidence, and is erroneous as a matter of

law.” Pl.’s Mem. at 1. Specifically, she contends the ALJ erroneously evaluated her residual

functional capacity, which is a mandatory assessment of the plaintiff’s capacity for work despite

any impairment she may have. See id. at 3-13.

1 The complaint alleges that the plaintiff filed applications for “Social Security Disability Insurance benefits and/or Supplemental Security Income benefits.” Complaint ¶ 4. Supplemental Security Income (“SSI”) benefits are authorized under Title XVI of the Social Security Act and are distinct from, although similar to, disability insurance benefits under Title II. The plaintiff’s motion for judgment of reversal refers only to claims for benefits under Title II, see Pl.’s Mem. at 1, and the plaintiff apparently did not pursue SSI claims with the Administration. See, e.g., A.R. at 15, 58, 342. Accordingly, the Court will disregard the references to SSI in the complaint.

2 In response to the plaintiff’s motion, the defendant moved for judgment of affirmance,

arguing that the ALJ’s final decision is supported by substantial evidence and is in accordance

with applicable law. See generally Def.’s Mem. for J. of Affirmance and Def.’s Opp’n to Pl.’s

Mot. for J. of Reversal (“Def.’s Mem.”).

Both parties’ motions are now before the Court.

II. Standard of Review

The Social Security Act gives federal district courts jurisdiction over civil cases that

challenge a final decision of the Commissioner of Social Security.

(g). The

reviewing court must uphold the decision of the Commissioner if it is based on substantial

evidence in the record and the correct application of the relevant legal standards. Id.; Butler v.

Barnhart,

(D.C. Cir. 2004). Substantial evidence “requires more than a

scintilla, but can be satisfied by something less than a preponderance of the evidence.” Butler,

(quoting Fla. Mun. Power Agency v. FERC,

(D.C. Cir.

2003)). The Court does not review the decision de novo. Davis v. Heckler,

(D.D.C. 1983). Although the reviewing court “must carefully scrutinize the entire record,”

its role is “not to determine . . . whether [the plaintiff] is disabled,” but only to assess “whether

the ALJ’s finding that she is not is based on substantial evidence and a correct application of the

law.” Butler,

.

III. Statutory and Regulatory Framework

To qualify for disability insurance benefits under Title II of the Social Security Act, the

plaintiff must establish that she is “disabled.”

. “Disability” means the “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

3 expected to last for a continuous period of not less than 12 months.”

§ 423(d)(1)(A). “An

individual shall be determined to be under a disability only if [her] physical or mental

impairment or impairments are of such severity that [she] is not only unable to do [her] previous

work but cannot, considering [her] 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).

The Commissioner has established a five-step sequential evaluation process for assessing

a claimant’s alleged disability. See

. The claimant carries the burden of

proof on the first four steps. Butler,

. First, the claimant must demonstrate that

she is not presently engaged in “substantial gainful” work.

(b). Second, a

claimant must show that she has a “severe impairment” that “significantly limits [her] physical or

mental ability to do basic work activities.”

§ 404.1520(c). Third, if the claimant suffers from

an impairment that meets or equals an impairment listed in Appendix 1 to the Commissioner’s

regulations, she will be deemed disabled. Id. § 404.1520(d). If the claimant does not satisfy step

three, the inquiry will proceed to the fourth step, but the Commissioner must first assess the

claimant’s residual functional capacity (“RFC”). Id. § 404.1520(e). This capacity reflects “what

an individual can still do despite his or her limitations.” Ross v. Astrue,

(D.D.C. 2009). After the claimant’s RFC has been assessed, the fourth step requires the

claimant to show that she has an impairment that prevents her from performing her “past relevant

work.”

§§ 404.1520(e)-(f). If the claimant has carried the burden on the first four steps, the

burden shifts to the Commissioner on step five to demonstrate that the claimant is able to

perform “other work” based on a consideration of her RFC, age, education and work experience.

Id. § 404.1520(g); Butler,

. If the claimant cannot perform other work, she is

deemed disabled.

4 IV. Discussion

The instant appeal primarily challenges the way in which the ALJ performed the residual

functional capacity assessment that is required prior to steps four and five of the five-step

inquiry. See Pl.’s Mem. at 3-14. The plaintiff argues that the ALJ failed to perform a proper

RFC assessment in several respects. First, she claims that the ALJ’s RFC assessment is a “naked

conclusion, devoid of analysis,” and that the ALJ “failed to perform a function-by-function

assessment of the Plaintiff’s abilities to perform work-related activities, and failed to set forth a

narrative discussion describing how the evidence supported each conclusion.” Pl.’s Mem. at 5-6.

Second, she contends the ALJ’s assessment is “contradictory on its face” in that it does not

address the plaintiff’s depression, which the ALJ had determined to be a “severe impairment.”

Id. at 6-7. Third, the plaintiff contends the ALJ’s assessment erroneously failed to address the

plaintiff’s deficiencies in “concentration, persistence or pace,” which the ALJ had determined to

be “moderate.” Id. at 7. Relatedly, the plaintiff asserts that the ALJ failed to conduct a

sufficiently detailed mental RFC assessment in general. Id. at 10-13. Fourth, the plaintiff

objects that the ALJ failed to evaluate pertinent evidence of plaintiff’s limitations, including (1)

an evaluation indicating the plaintiff had borderline intellectual functioning, (2) an evaluation

indicating the plaintiff needed to avoid exposure to “extreme cold, humidity and vibration,” as

well as “fumes, odors, dusts, gases, [and] poor ventilation,” and (3) an evaluation indicating that

the plaintiff had moderate restrictions in the ability to stand, walk, and lift, carry, and handle

objects. Id. at 9-10, 13-14. Finally, the plaintiff contends that the RFC assessment’s conclusion

that the plaintiff had “limited” dominant hand usage was overly vague because it did not specify

the limitations. Id. at 13.

5 In addition to her arguments based on the RFC assessment, the plaintiff also asserts that

the hypothetical questions the ALJ posed to the vocational expert at the hearing were flawed

because they did not include any reference to the plaintiff’s mental limitations. Id. at 7-8.

The Court agrees that the ALJ did not properly assess the plaintiff’s RFC. Accordingly,

the ALJ’s decision must be reversed and remanded to the Administration for further proceedings

consistent with this Memorandum Opinion.

A. The ALJ’s Five-Step Analysis

In this case, the ALJ began the five-step disability inquiry correctly by considering

whether the plaintiff was presently engaged in “substantial gainful activity.” The ALJ concluded

that she had not engaged in such activity since August 9, 2004. A.R. at 21. Thus, the plaintiff

satisfied the first step of the inquiry.

At the second step, the ALJ determined that the plaintiff “has the following severe

impairments: arthritis, back and neck pain, and depression.” Id. Apparently in support of this

finding, although without much explanation, the ALJ set forth an eight-paragraph factual

summary of the plaintiff’s medical history. Id. at 21-22. The medical evaluations summarized in

this section of the decision reflected reports from six different doctors and related both to

physical and mental conditions, including arthritis, back and neck conditions, and depression, as

well as other medical conditions. Id. Since the ALJ determined that the plaintiff had severe

physical and mental impairments, the second step of the inquiry was satisfied.

The third step requires the ALJ to decide whether the claimant has an impairment that

“meets or equals” the criteria for an impairment listed as disabling in Appendix 1 to the

Commissioner’s regulations.

(d). Despite having just concluded that the

plaintiff’s “severe impairments,” included “arthritis, back and neck pain, and depression,” the

6 ALJ’s decision only analyzed whether the plaintiff’s mental impairment – i.e., depression – met

the criteria for a listed impairment. A.R. at 23. The ALJ concluded that the claimant “does not

have an impairment or combination of impairments that meets or medically equals one of the

listed impairments.”

This conclusion does not appear to reflect a proper application of the third step of the

inquiry, which requires the ALJ to perform a listing comparison for the relevant severe

impairments. The ALJ had concluded that the plaintiff’s severe impairments included not just

depression, but also arthritis and back and neck pain.

. Arthritis, for example, may

satisfy the disability listing criteria under Listing 1.00, Musculoskeletal System, depending on

the evidence. 20 C.F.R. Pt. 404, Subpt. P, App. 1. Thus, the ALJ should have assessed whether

that impairment satisfied a listing. See Wells v. Astrue, No. 02-1357,

, at *7

n.5 (D.D.C. Jul. 30, 2009) (“When the evidence in the administrative record clearly generates an

issue as to a particular listing and the ALJ fails to properly identify the [l]isting considered and to

explain clearly the medical evidence of record supporting the conclusion reached[,] a remand can

be expected to result.”) (quoting Conway ex rel. Tolen v. Astrue,

(D.D.C.

2008)). The failure to conduct a listing comparison may be either harmless or reversible error,

depending on the circumstances, but the Court does not need to decide that issue here because

the Court must remand this case on other grounds, as discussed below.2 See

Since the ALJ concluded that the plaintiff’s impairments did not meet the criteria of any

listed impairment, he continued with the inquiry by determining the plaintiff’s residual

functional capacity. The ALJ concluded the plaintiff had “the residual functional capacity to

perform light unskilled work as defined in

(b) except with a sit/stand option

and limited dominant hand usage.” A.R. at 23. 2 In addition, the plaintiff has not challenged this aspect of the ALJ’s decision in her appeal.

7 At step four, the ALJ determined that the plaintiff was unable to perform her past relevant

work as an electrician because “[i]n her past relevant work . . . the claimant was required to lift

and carry 50 pounds occasionally and 25 pounds frequently.”

. Accordingly, the ALJ

proceeded to the fifth and final step.

At step five, the ALJ, relying on the testimony of the vocational expert, determined that

there are jobs that exist “for an individual with the claimant’s age, education, work experience

and residual functional capacity,” such as sales greeter, router, and office helper.

.

Therefore, the ALJ concluded that the plaintiff was not disabled.

B. Plaintiff’s Residual Functional Capacity

The plaintiff has challenged the ALJ’s residual functional capacity assessment.

The RFC assessment is a “function-by-function inquiry based on all of the relevant

evidence of a claimant’s ability to do work and must contain a narrative discussion identifying

the evidence that supports each conclusion.” Butler,

(internal quotation marks

omitted). “In performing the RFC assessment, the ALJ must explain how he considered and

resolved any material inconsistencies or ambiguities evident in the record, as well as the reasons

for rejecting medical opinions in conflict with the ultimate RFC determination.”

(internal

quotation marks omitted). The ALJ must build a “logical bridge” from the evidence to his

conclusion about the claimant’s RFC. Banks v. Astrue,

(D.D.C. 2008);

see also Lane-Rauth v. Barnhart,

(D.D.C. 2006) (remanding case where

ALJ merely listed all the evidence without explaining which evidence led him to his conclusion

or why he discounted contrary pieces of evidence).

In assessing the RFC, the ALJ must follow the framework set forth by the Administration

in SSR 96-8p, Assessing Residual Functional Capacity in Initial Claims (the “SSA RFC

8 Ruling”).

(S.S.A. July 2, 1996); Ross,

; Butler,

(finding reversible error in ALJ’s conclusions where the ALJ did not, inter alia,

make the determinations required by the SSA RFC Ruling). Among other requirements, the SSA

RFC Ruling directs the ALJ to consider the functions in paragraphs (b), (c), and (d) of

, which include physical abilities (such as sitting, standing, walking, lifting, carrying,

pushing, pulling, or other physical functions like reaching, handling, stooping or crouching),

mental abilities (such as understanding, remembering, carrying out instructions, and responding

appropriately to supervision, co-workers, and work pressures), and other abilities affected by

impairments.

; SSA RFC Ruling at, *1. In cases involving allegations of

medical symptoms, the RFC assessment should contain “thorough discussion and analysis of the

objective medical and other evidence.” SSA RFC Ruling, at *7. In cases involving mental

impairments, the ruling requires a “more detailed” assessment of the claimant’s particular mental

abilities than that required at step three, which is focused on broad categories designed to assess

a mental impairment’s severity.

.

In this case, the ALJ concluded that “the claimant has the residual functional capacity to

perform light unskilled work as defined in

(b) except with a sit/stand option

and limited dominant hand usage.” A.R. at 23. The ALJ failed, however, to provide a logical

explanation for this conclusion and did not conduct the type of analysis required by the SSA

RFC Ruling. See

. Instead, the ALJ’s RFC assessment consists of extremely generic

and abstract declarations. See

The assessment does not contain analysis or citations of

specific facts in the record that relate to claimant’s functional abilities. Indeed, the assessment

does not specifically mention any of the plaintiff’s alleged symptoms, evaluating doctors, or

9 medical conditions. Nor does the decision distinguish in any way between the plaintiff’s mental

and physical impairments or capacities.

The RFC assessment in its current form impedes effective judicial review. See Butler,

. For example, the RFC assessment generically asserts that “[a]lthough the

claimant has received treatment for the allegedly disabling impairment(s), that treatment has

been essentially routine and/or conservative in nature.” A.R. at 24. The ALJ does not provide

any further details about the treatments or impairments being referenced in this conclusion. The

ALJ notes that “[t]he doctor apparently relied quite heavily on the subjective report of symptoms

and limitations provided by the claimant, and seemed to uncritically accept as true most, if not

all, of what the claimant reported.” Id. at 25. Yet the ALJ inexplicably does not identify the

particular doctor, symptoms, or limitations being referenced in that conclusion. As noted above,

the ALJ’s decision had previously cited medical reports from six different doctors. Id. at 21-22.

Similarly, the ALJ states, “As for the opinion evidence, the doctor’s opinion is without

substantial support from the other evidence of record, which obviously renders it less

persuasive.” Id. at 25. Again, the ALJ does not identify the doctor, opinion, or condition being

referenced. Such abstract conclusions that lack any indication of the evidence to which they

pertain fail to provide the necessary “logical bridge,” Lane-Rauth,

, and

“thorough discussion and analysis,” SSA RFC Ruling, at *7, that the RFC assessment must

include.

The ALJ’s conclusions about the plaintiff’s testimony are also inscrutable. The ALJ

stated that “[t]he description of the symptoms and limitations which the claimant has provided

throughout the record has generally been inconsistent and unpersuasive.” A.R. at 24. Yet the

ALJ does not explain or identify the inconsistencies he observed. The Court notes that the

10 plaintiff’s claims in the record actually appear to be relatively consistent, at least at a general

level. For example, in a visit to Dr. Chester A. DiLallo on July 8, 2003, the plaintiff complained,

inter alia, of injury to her neck, shoulders, and back as a result of her work accident. Id. at 316.

In a medical report prepared by Dr. Chee-Hahn Hung on August 18, 2005, that doctor also noted

the plaintiff’s claims of pain in her shoulder, back, and neck. Id. at 225. “[T]he ALJ must

explain how he considered and resolved any ‘material inconsistencies or ambiguities’ evident in

the record . . . .” Butler,

(quoting the SSA RFC Ruling at *7). The ALJ also

justified his RFC conclusion by citing “the claimant’s generally unpersuasive appearance and

demeanor while testifying at the hearing,” A.R. at 24, without providing any further elaboration.

The D.C. Circuit has explained that an ALJ’s credibility evaluation of a claimant’s complaints of

painful symptoms “must contain specific reasons for the finding on credibility, supported by the

evidence in the case record, and must be sufficiently specific to make clear to the individual and

to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and

reasons for that weight.” Butler,

(quoting SSR 96-7p, Evaluation of Symptoms

in Disability Claims: Assessing the Credibility of An Individual’s Statements,

,

at *2 (SSA July 2, 1996)).

The plaintiff has asserted that the RFC assessment is “contradictory on its face” because

it does not address the plaintiff’s depression, which the ALJ had determined to be a “severe

impairment.” Pl.’s Mem. at 6-7. In fact, it is hard to tell which impairments – mental or physical

– the RFC assessment addressed at all because it does not mention any symptoms or impairments

in particular. In one paragraph, the ALJ addresses, in an abstract way, limitations on the

claimant’s “daily activities,” concluding that these unspecified limitations are “considered to be

outweighed by the other factors discussed in this decision.” A.R. at 24. Perhaps this paragraph

11 is intended to relate to the plaintiff’s depression since restrictions on activities of daily living are

one factor to be considered in evaluating whether a claimant meets the listing for depression; the

Court cannot be certain. If the discussion of “daily activities” is indeed intended to relate the

plaintiff’s mental RFC, it is hard to understand why the ALJ’s assessment did not also address

the plaintiff’s deficiencies in “concentration, persistence or pace.” See Pl.’s Mem. at 7. In

considering whether the plaintiff met the listing for depression, the ALJ had specifically

determined that the plaintiff had “moderate difficulties in concentration, persistence, or pace,”

but only “mild restriction” in activities of daily living. See id.; A.R. at 23. Thus, the plaintiff’s

confusion is well founded. Since it is unclear to what extent the RFC assessment addressed the

plaintiff’s mental impairments at all, the assessment also plainly fails to provide the “more

detailed” analysis of the plaintiff’s mental abilities required by the SSA RFC ruling. SSA RFC

Ruling, at *4.

In short, the RFC assessment does not make clear the logical basis for the ALJ’s

conclusion that “the claimant has the residual functional capacity to perform light unskilled work

as defined in

(b) except with a sit/stand option and limited dominant hand

usage.” A.R. at 23. See Lane-Rauth,

(requiring a “logical bridge” to the

ALJ’s conclusions). In addition to providing an inadequate rationale for his conclusion, the

wording of the ALJ’s decision is also too generic to enable the Court to determine what evidence

was credited and what evidence was rejected. See

(“While the ALJ need not articulate his

reasons for rejecting every piece of evidence, he must at least minimally discuss a claimant’s

evidence that contradicts the Commissioner’s position.”) (quoting Godbey v. Apfel,

(7th Cir. 2000)). The D.C. Circuit’s comments in Butler v. Barnhart apply here:

The ALJ’s reasoning is not simply ‘spare’ . . . it is missing. . . .The judiciary can scarcely perform its assigned review function, limited though it is, without some

12 indication not only of what evidence was credited, but also whether other evidence was rejected rather than simply ignored.

Butler,

(internal quotation marks, citations, and alterations omitted).

Unlike the ALJ’s decision, the defendant’s motion for judgment of affirmance does

provide an analysis of the medical evidence relating to the plaintiff’s conditions, with specific

reference to particular doctors, treatments, symptoms, and conclusions about the plaintiff’s

functional capacities. See generally Def.’s Mem. The defendant argues that the facts in the

record, as recited in the defendant’s legal memorandum, indicate that there was “substantial

evidence” supporting the ALJ’s finding that the plaintiff was not disabled. Id. at 15-16. The

function of this Court, however, “is to review the determinations actually made by the ALJ, not

to engage in these determinations for him.” Ross,

(citing SEC v. Chenery

Corp.,

(1947)); see also Butler,

n.5. Further, the ALJ’s

decision must not only be supported by substantial evidence, it must also rest on a correct

application of the law. See Butler,

. Here, the law requires the Administration to

comply with the process set forth in the SSA RFC Ruling. Ross,

; see also

(g) (authorizing reviewing court to assess compliance with the relevant

Administration regulations).

While the Court must defer to the ALJ’s determination of facts supported by substantial

evidence, the Court cannot understand the basis for the ALJ’s conclusions based on the decision

in its current form. Lane-Rauth,

. “While the court need not remand in

search of a perfectly drafted opinion, where the ALJ’s decision leaves the reviewing court with

reservations as to whether an issue was fully addressed, the court should reverse.”

(quoting

Samuel v. Barnhart,

(E.D. Wis. 2004)). The current form of the ALJ’s

decision precludes effective judicial review and does not indicate that the ALJ followed the

13 analytical framework set forth by the Administration in the SSA RFC Ruling. Accordingly, the

Court must remand this case to the Administration.3

C. The Vocational Expert’s Testimony

The plaintiff also argues that, at step five, the ALJ improperly relied on the vocational

expert’s testimony to establish that the plaintiff could perform other work. The plaintiff

contends the ALJ’s hypothetical questions to the expert were deficient because they failed to

include any reference to the plaintiff’s mental limitations, such as her moderate difficulties in

concentration, persistence, or pace. Pl.’s Mem. at 7. Since the Court has already determined that

the ALJ improperly assessed the plaintiff’s RFC, the ALJ’s findings at step five necessarily must

be reversed as well. See Ray v. Astrue,

(D.D.C. 2010). Therefore, the

Court need not consider whether the alleged deficiencies in the ALJ’s hypothetical questions

here would amount to an independent reversible error. Even so, to provide guidance on remand,

the Court notes that the D.C. Circuit has instructed that “[d]eficiencies in the ALJ’s description

of the claimant’s condition ‘undermine the foundation for the expert’s ultimate conclusion that

there are alternative jobs’ that the claimant is capable of performing.” Butler,

(quoting Simms v. Sullivan,

(D.C. Cir. 1989)). Accordingly, the Court

advises that, on remand, the ALJ should include relevant limitations found to be supported by

record evidence in any hypothetical questions posed to a vocational expert.

3 The Court need not reach the plaintiff’s more specific objections about the RFC assessment’s consideration of particular record evidence since it is remanding this case based on the ALJ’s failure to provide an adequate rationale for the RFC assessment. As explained above, the general rule is that “the ALJ must explain how he considered and resolved any material inconsistencies or ambiguities evident in the record, as well as the reasons for rejecting medical opinions in conflict with the ultimate RFC determination.” Butler,

(internal quotation marks omitted). “While the ALJ need not articulate his reasons for rejecting every piece of evidence, he must at least minimally discuss a claimant’s evidence that contradicts the Commissioner’s position.” Lane-Rauth,

.

14 V. Conclusion

The Court grants the plaintiff’s motion for a judgment of reversal, denies the defendant’s

motion for a judgment of affirmance, and remands this case to the Administration for further

proceedings consistent with this memorandum opinion because the ALJ did not articulate an

adequate basis for his conclusions regarding the plaintiff’s residual functional capacity.

Date: March 17, 2011

/s/ Beryl A. Howell BERYL A. HOWELL United States District Judge

15