Opinion
Civil Action No. 11-1385 BJR/DAR
07-11-2012
DEBBIE MULDROW, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks a judgment reversing the denial of her applications for Social Security Disability Benefits ("DIB") and Supplemental Security Income Benefits ("SSI"). Complaint (Document No. 1) at 2. In the alternative, she seeks a remand to the Social Security Administration for a new administrative hearing. Id. Defendant, as part of his answer, filed "a certified copy of the transcript of the record including the evidence upon which the findings and decisions complained of are based." Answer (Document No. 2); see also Administrative Record (Document No. 3). Currently pending for consideration by the undersigned are Plaintiff's Motion for Judgment of Reversal ("Plaintiff's Motion") (Document No. 5), and Defendant's Motion for Judgment of Affirmance ("Defendant's Motion") (Document No. 6).
The administrative record that has been filed in this case contains multiple volumes and will be cited herein as "Administrative Record (Document No. 3-___ ) at ___."
"Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . , may obtain a review of such decision by a civil action[.]" 42 U.S.C. § 405(g). "The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commission of Social Security, with or without remanding the cause for a rehearing." Id.
Upon consideration of the motions, the memoranda in support thereof and in opposition thereto, and the entire record herein, the undersigned will recommend that Plaintiff's motion be denied, and that Defendant's motion be granted.
BACKGROUND
Plaintiff, a 49-year-old resident of Washington, D.C., who developed significant pain in her neck and arm beginning in August, 2007. Plaintiff is a high school graduate, and has not completed any additional training. Administrative Record (Document No. 3-3) at 32-33. In 2007, Plaintiff was examined by a physician, who determined that Plaintiff had moderate to marked spinal stenosis at C5-6 with cord abutment and spinal canal narrowing, as well as moderate bilateral neural foraminal narrowing. See Administrative Record (Document No. 3-10) at 292. On August 6, 2007, Plaintiff underwent an anterior cervical discectomy and fusion with plating at C5-6. Id. at 286. Following this procedure, Plaintiff was examined on August 17, 2007; at that time, the physician found that Plaintiff "describe[d] no residual pain symptoms whatsoever[,]" and released her to return to work with no restrictions. See id. at 252. Plaintiff was then examined by her primary care physician on August 23, 2007; at that time, she reported neck pain with spasms at C5-6. Administrative Record (Document No. 3-11) at 296-97. Less than one year later, the treating physician noted that Plaintiff's complaints of pain were at a "4-5/10 level[.]" Administrative Record (Document No. 3-15) at 381-82.
On August 20, 2007, Plaintiff filed applications for "Disability Insurance Benefits and Supplemental Security Income Benefits, pursuant to Titles II and XVI of the Social Security Act[.]" Administrative Record (Document No. 3-7) at 136, 140. Plaintiff filed the applications based upon her cervical spine injury, a disability which she alleges began on August 6, 2007. Id. at 140. Plaintiff's applications for disability insurance benefits and supplemental security income benefits were denied initially on December 17, 2007, and then on April 10, 2008, denied upon reconsideration. See Administrative Record (Document No. 3-2) at 15.
On April 30, 2008, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Administrative Record (Document No. 3-2) at 15. An administrative hearing was held on September 10, 2009, during which the ALJ heard testimony from Plaintiff and vocational expert ("VE") Dr. Dean Leviton. See Administrative Record (Document No. 3-3) at 28-70. Plaintiff testified at the administrative hearing that she last worked in 2007 as an employee at a fast food restaurant, and before that, as an employee in a nursing home. Id. at 33. In addition to the testimony heard at the hearing, the ALJ also considered medical evidence, which comprises the administrative record now before this court.
During a period which, in part, predated the onset of her claimed disability, Plaintiff was treated for, among other conditions, cervical spine radiculopathy, by her treating physician, Dr. Thomas Garland, at Unity Health Care, Inc. See Administrative Record (Document Nos. 3-11, 3-12, 3-13, 3-15, 3-17) at 296-353, 381-460. In January, 2007, Plaintiff received a magnetic resonance imaging ("MRI") scan of her cervical spine which revealed "moderate to marked spinal stenosis due to moderate uncovertebral hypertrophy and mild central disc protrusion." Administrative Record (Document No. 3-10) at 292. On April 12, 2007, Dr. Garland prescribed pain medication. Administrative Record (Document No. 3-11) at 309. In addition, the scan revealed "mild cord abutment and mild spinal canal narrowing[.]" Id. On July 26, 2007, Dr. Vivek Deshmukh, of the Department of Neurosurgery at George Washington University, recommended that Plaintiff "undergo anterior cervical diskectomy at C5-C6 with fusion and plating." Id. at 255. Earlier that year, in February, 2007, Dr. Deshmukh recommended that Plaintiff "undergo EMG/nerve conduction velocity testing to determine if she has clear radiculopathy . . . and [consider] [whether to] proceed[] with anterior cervical discectomy and fusion and plating[.]" Id. at 260. Plaintiff underwent surgery on August 6, 2007. On August 15, 2007, Plaintiff returned to Dr. Deshmukh for a post-operative visit and indicated that she had "absolutely no pain." Id. at 254.
Plaintiff, during her two visits to Dr. Garland on August 23, 2007 and September 10, 2007, reported a recurrence of her cervical spine symptoms. Administrative Record (Document No. 3-11) at 296-97. As a result, Dr. Garland prescribed medication and recommended that Plaintiff wear a cervical spine collar. Id. Plaintiff reported to Dr. Garland that she was continuing to experience pain; Dr. Garland prescribed pain medication and potassium, recommended that she see her spinal surgeon, and advised her to wear a cervical collar. See Administrative Record (Document No. 3-16) at 429, 431-32, 436-37. In addition, Plaintiff indicated that her pain was improving, and that she was active enough to resume work. Administrative Record (Document Nos. 3-15, 3-16) at 381, 428, 434.
On November 9, 2007, Dr. Saba Kulathungam, a specialist in internal medicine, opined that Plaintiff, who was diagnosed with HIV infection in 2005, has an "[i]mpairment secondary to HIV infection [that] is non-severe." Administrative Record (Document No. 3-13) at 367.
On November 30, 2007, Dr. Freidoon Malek, the State Agency consultant, undertook a physical residual functional capacity assessment. Administrative Record (Document No. 3-14) at 369-376. Dr. Malek's assessment was that Plaintiff could occasionally lift up to 20 pounds and frequently lift up to ten pounds, with no further limitations on her ability to push or pull. Id. at 370. In addition, Dr. Malek opined that Plaintiff could sit, stand, or walk for up to six hours in an eight-hour workday. Id. Dr. Malek found postural limitations, those being that Plaintiff could never climb ladders, ropes, or scaffolds, could only occasionally crouch or crawl, and could frequently climb ramps or stairs, balance, stoop, or kneel. Id. at 371. Dr. Malek also found that Plaintiff had a limited ability to reach overhead. Id. at 372. However, he found no visual, communicative, or environmental limitations. Id. at 372-73. Dr. Malek also found that Plaintiff's "impairment is severe, but does not meet or equal the listing." Administrative Record (Document No. 3-13) at 368. On April 7, 2008, Dr. Fizzeh Nelson-Desiderio affirmed Dr. Malek's residual functional capacity assessment of Plaintiff, finding "no new injuries except for pain and muscle spasms." Administrative Record (Document No. 3-17) at 460.
The court notes that the "listing" to which the physician refers is not specifically identified. However, the court assumes that the physician intended to refer to the requirement that "the claimant's impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation." See generally 20 C.F.R. Pt. 404, Subpt. P, App. 1 (listing of impairments).
On September 22, 2009, the ALJ denied Plaintiff's claim for benefits. Administrative Record (Document No. 3-2) at 15-23. Plaintiff then sought review by the Appeals Council of the ALJ's decision. Id. at 9. On May 26, 2011, the decision of the ALJ became the final decision of the Commissioner when the Appeals Council "found no reason under [the] rules to review the Administrative Law Judge's decision[,]" and denied Plaintiff's request for review. Id. at 1.
On July 29, 2011, Plaintiff commenced this action by filing a complaint in this Court. Complaint at 1. The parties then filed the motions which are the subject of this report and recommendation.
CONTENTIONS OF THE PARTIES
Plaintiff, in support of her motion for judgment of reversal, advances as her sole argument that the ALJ failed to develop the administrative record. Memorandum in Support of Plaintiff's Motion for Judgment of Reversal ("Plaintiff's Memorandum") (Document No. 5-1) at 4. Plaintiff asserts two claims more specifically. First, Plaintiff contends that the ALJ rendered his decision seventeen months after the "date of the last evidence contained in the record[,]" and failed to address "this evidentiary gap[.]" Second, Plaintiff contends that the record was "devoid of any medical evidence regarding the Plaintiff's current condition[,]" and that "[t]his failure to order a consultative examination was erroneous." Id. at 6.
Defendant, in his opposition to Plaintiff's motion for judgment of reversal and in support of his own motion for judgment of affirmance, contends that "(1) the administrative law judge ("ALJ") had no duty to obtain further medical records because [Plaintiff] bears the burden of providing evidence in support of her claims; and (2) the ALJ had no duty to obtain an additional consultative examination both because the record contains all of the evidence necessary to make a disability determination and because a consultative examination report is already in the record." Memorandum of Law in Support of Defendant's Motion for Judgment of Affirmance and in Opposition to Plaintiff's Motion for Judgment of Reversal ("Defendant's Memorandum") (Document No. 6-1) at 1.
Plaintiff filed an opposition to Defendant's motion for judgment of affirmance. Plaintiff's Opposition to Defendant's Motion for Judgment of Affirmance ("Plaintiff's Motion") (Document No. 10). In response to Defendant's argument regarding burden of proof, Plaintiff claims that Defendant did not develop a "complete medical history" in accordance with 20 C.F.R. § 404.1512(d). Plaintiff's Motion at 2. With respect to the issue of whether or not the ALJ had a duty to obtain additional records, Plaintiff maintains that "the record was insufficient to determine whether the Plaintiff was disabled, at least as of April 8, 2008, [the date after the last evidence of record][.]" Id. at 3.
On January 24, 2012, Plaintiff filed her reply to Defendant's opposition to her motion for judgment of reversal. See Plaintiff's Reply to Defendant's Opposition to Motion for Judgment of Reversal ("Plaintiff's Reply"). Plaintiff advances the same arguments in her reply that she did in opposition to Defendant's motion for judgment of affirmance.
STATUTORY FRAMEWORK
The term "disability" is defined as 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 expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). An individual 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[.]" 42 U.S.C. § 423(d)(2)(A).
A five-step sequential evaluation governs the determination of whether or not a claimant is disabled. 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4). This court has further articulated the standard as follows:
[A]n ALJ must evaluate whether: (1) the claimant is "presently engaged in substantial gainful activity"; (2) the claimant has a "medically severe impairment or impairments"; (3) the claimant's impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation; (4) the impairment prevents the claimant from performing his or her past relevant work; and (5) the claimant, in light of his or her age, education, work experience and residual functional capacity ("RFC"), can still perform another job that is available in the national economy. . . . Through the first four steps of this inquiry, the claimant bears the burden of proof . . . At step five, however, the burden shifts to the Commissioner to identify specific jobs sufficiently available in the national economy that the claimant can perform.Callahan v. Astrue, 786 F. Supp. 2d 87, 89 (D.D.C. 2011) (citations omitted); accord Jones v. Astrue, 647 F.3d 350, 352-353 (D.C. Cir. 2011).
Here, the ALJ found with regard to Plaintiff's claims for benefits: (1) "[t]he claimant meets the insured status requirements of the Social Security Act through March 30, 2009[]"; (2) "[t]he claimant has not engaged in substantial gainful activity since August 6, 2007, the alleged onset date . . . . "; (3) "[t]he claimant has the following severe impairments: HIV, cervical disc disease, and cervical radiculopathy . . . . "; (4) "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . . "; (5) "[t]he claimant has the residual functional capacity to perform less than a full range of light work[,] . . . . " Administrative Record (Document No. 3-2) at 18-21. In addition, the ALJ found that (6) "[t]he claimant is unable to perform any past relevant work . . . . "; (7) "[t]he claimant was born on November 27, 1961 and was 45 years old, . . . , on the alleged disability onset date . . . . " ; (8) "[t]he claimant has at least a high school education and is able to communicate English . . . . " (9) "[t]he claimant is not 'disabled,' whether or not the claimant has transferable job skills . . . . "; (10) "[t]here are jobs that exist in significant numbers in the national economy that the claimant can perform . . . [,]" and (11) "[t]he claimant has not been under a disability, as defined in the Social Security Act from August 6, 2007 through the date of this decision . . . . " Id. at 22-23.
APPLICABLE STANDARDS
Federal district courts have jurisdiction over civil cases actions for judicial review of a final decision of the Commissioner of Social Security to determine whether the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see Grant v. Astrue, Civil Action No. 11-0467, 2012 WL 1495154, at *4 (D.D.C. April 30, 2012) ("[T]he role of the reviewing court is limited to assessing whether the Commissioner's conclusions are supported by substantial evidence.") (citation omitted); see also Rothe v. Astrue, 766 F. Supp. 2d 5, 11 (D.D.C. 2011) ("A court . . . may not reweigh the evidence or supplant the SSA's judgment of the weight of the evidence with its own[.]"). The Commissioner's determination will not be disturbed if it is based on substantial evidence in the record, and correctly applies the relevant legal standards. See 42 U.S.C. §405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]"); Rothe, 766 F. Supp. 2d at 11 ("[S]ubstantial deference should be given to the ALJ's decision, but the evidence should be read in the light most favorable to the claimant.") (citation omitted); see also Ross v. Astrue, 636 F. Supp. 2d 127, 131 (D.D.C. 2009) ("[T]he reviewing court must uphold the Administration's legal 'determination if . . . it is not tainted by an error of law.'") (quoting Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Callahan, 786 F. Supp. 2d at 92 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It "requires more than a scintilla, but can be satisfied by something less than a preponderance of the evidence." Id. (quoting Fla. Mun. Power Agency v. Fed. Energy Reg. Comm., 315 F.3d 362, 365-66 (D.C. Cir. 2003)).
"Although the reviewing court 'must carefully scrutinize the entire record,' its role 'is not to determine . . . whether [the claimant] is disabled,' but only to assess 'whether the ALJ's findings that []he is not is based on substantial evidence and a correct application of the law.'" Ivey v. Social Security Administration, 806 F. Supp. 2d 151, 155 (D.D.C. 2011) (quoting Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004)). Indeed, "[t]he inquiry examines whether the ALJ 'has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits[.]'" Dunham v. Astrue, 603 F. Supp. 2d 13, 17 (D.D.C. 2009) (quoting Crawford v. Barnhart, 556 F. Supp. 2d 49, 52 (D.D.C. 2008)). The plaintiff bears the burden of demonstrating that the Commissioner's decision is not based on substantial evidence or that incorrect legal standards were applied. Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 64 (D.D.C. 2006) (citations omitted).
Pursuant to 42 U.S.C. § 405(g), a district court has discretion "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g); Ademakinwa v. Astrue, 696 F. Supp. 2d 107, 110 (D.D.C. 2010). Where a court cannot determine "the ALJ's rationale . . . without further findings or clearer explanation for the decision[,]" remand is appropriate. Ademakinwa, 696 F. Supp. 2d at 111 (citation omitted).
It is the law of this Circuit that "[a]bsent proper record development at a Social Security Administration hearing, 'the [Commissioner's] decision cannot stand.'" Jeffries v. Astrue, 723 F. Supp. 2d 185, 196 (D.D.C. 2010) (quoting Poulin v. Bowen, 817 F.2d 865, 871 (D.C. Cir. 1987)). "While the '[ALJ] has an affirmative duty to develop a complete administrative record, including arguments both for and against granting benefits,' . . . , and the ALJ is 'charged with developing the facts,' the ALJ 'does not act as council' for the claimants." Id. (citation omitted). See also Krishnan v. Barnhart, 328 F.3d 685, 695(D.C. Cir. 2003) ("The glaring nature of SSA's regulatory violations is underscored by decisions of the Supreme Court as well as the circuit courts of appeal instructing that in cases involving disability benefits SSA has an affirmative duty to develop a complete administrative record[.]") (citations omitted). This Court is clear on the standards of developing an administrative record. See Turner v. Astrue, 710 F. Supp. 2d 95, 108 (D.D.C. 2011) ("The ALJ need not undertake an additional investigation where there is no obvious gap or defect in the administrative record.").
"[A]n ALJ is required to order consultative examinations only '[i]f the information need[ed] is not readily available from the records of [the plaintiff's] medical treatment source.'" Clark v. Astrue, 826 F. Supp. 2d 13 (D.D.C. 2011). In addition, "[a] consultative examination is generally required 'to resolve a conflict or ambiguity if one exists.'" Hynes ex rel. Davis v. Astrue, Civil Action No. 01-1231, 2009 WL 1312545, at *4 (D.D.C. May 12, 2009) (quoting 20 C.F.R. § 416.919a). Moreover, "it 'may be purchased when the evidence as a whole, both medical and non-medical, is not sufficient to support a decision on a claim.'" Id.
"If we cannot get the information we need from your medical sources, we may decide to purchase a consultative examination." 20 C.F.R. § 416.919a. --------
"In order to affirm a final decision of the Commissioner the Court must find that the Commission (1) made its decision based on substantial evidence, and (2) applied the correct legal standards." Pinkney v. Astrue, 675 F. Supp. 2d 9, 21 (D.D.C. 2009) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)).
DISCUSSION
"[E]videntiary [G]ap"
The court finds that the record before the ALJ was in accordance with the applicable authorities, and that the ALJ was not required to recontact Plaintiff's treating physician to inquire about Plaintiff's alleged disability. "[P]ursuant to Social Security regulations, recontact with a treating physican is necessary only when the evidence is inadequate to determine whether the claimant is disabled and the physician's report contains some conflict or ambiguity that must be resolved or is missing necessary information." Turner, 710 F. Supp. 2d at 108. Plaintiff suggests that the evidence before the ALJ was inadequate to determine whether she was disabled; however, Plaintiff has failed to identify either "some conflict or ambiguity [in the physician's report] that must be resolved[,]" or any "necessary information [missing from the physician's report[.]" Id.
The so-called gap in the administrative record to which Plaintiff points is the period from April, 2008 to September, 2009. However, the passage of time from the date of the last medical record to the date of the ALJ's decision, standing alone, is not sufficient to warrant a finding that the record was not developed in accordance with the applicable law. See Pinkney, 675 F. Supp. 2d at 21 ("Although [the medical evidence] is nearly 20 months prior to the administrative hearing there is nothing in the record to show that plaintiff's . . . condition had changed during this 20 month period requiring another consultative examination."). Here, Plaintiff relies exclusively upon the passage of time, and does not suggest that further inquiry was required by virtue of any change in her condition.
The undersigned further finds that the ALJ considered both medical record evidence and medical opinion evidence. See Administrative Record (Document No. 3-2) at 15-24. Notably, the ALJ considered the evidence regarding the anterior cervical discectomy procedure that Plaintiff underwent in August, 2007, days after which she reported "no pain." Administrative Record (Document No. 3-10) at 254. Two weeks after the procedure, Plaintiff was "without complaints and [was] very pleased with her progress." Id. at 252. With respect to the opinion evidence, the ALJ afforded the opinion of Dr. Malek significant weight, because it was "consistent with the record as a whole." Administrative Record (Document No. 3-2) at 21. Additionally, the ALJ, with respect to the residual functional capacity assessment, concluded that Plaintiff is "further limited in her ability to stand during an 8-hour workday." Id.
For the foregoing reasons, the undersigned finds that in this instance, the so-called "gap" is of no moment, and that the ALJ was not required by applicable law to undertake further inquiry.
Consultative Examination
The undersigned further finds that Plaintiff has not demonstrated that the ALJ was required to order a consultative examination. More specifically, the undersigned finds that Plaintiff has not shown that information regarding Plaintiff's condition was not readily available from Plaintiff's "medical treatment source[,]" or that there is "some conflict or ambiguity" in the record. See 20 C.F.R. § 416.919a(b) ("We may purchase a consultative examination to try to resolve an inconsistency in the evidence or when the evidence as a whole is insufficient to support a determination or decision on your claim.").
Here, Plaintiff argues that the record was insufficient to determine her disability, and that the ALJ should have ordered a consultative examination or additional records. However, largely for the reasons the undersigned has already articulated, the undersigned finds that Plaintiff has failed to demonstrate that the ALJ was required to do so, or proffered how such action would have resulted in a different decision regarding Plaintiff's eligibility for benefits. Nor has Plaintiff identified any circumstance - for example, a "conflict or ambiguity" in the records - which could have occasioned the need for a consultative examination. See, e.g., Clark, 826 F. Supp. 2d at 25 ("[A]n ALJ is required to order consultative examinations only 'if the information . . . need[ed] is not readily available from the records of [the plaintiff's] medical treatment source.'") (alterations in original) (citations omitted).
CONCLUSION
For the foregoing reasons, the undersigned finds that the Commission based its decision on substantial evidence and applied the correct legal standards. It is therefore, this 11th day of July, 2012,
RECOMMENDED that Plaintiff's Motion for Judgment of Reversal (Document No. 5) be DENIED, and it is
FURTHER RECOMMENDED that Defendant's Motion for Judgment of Affirmance (Document No. 6) be GRANTED.
/s/_________
DEBORAH A. ROBINSON
United States Magistrate Judge
Within fourteen days, either party may file written objections to this report and recommendation. The objections shall specifically identify the portions of the findings and recommendations to which objection is made, and the basis of the objection. In the absence of timely objections, further review of the issues addressed herein may be deemed waived.