                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


Frederick C. Gilliland,

                Plaintiff,

     v.                                         Civil Action No. 12-02048 (GK)

Carolyn W. Colvin,
Acting Commissioner of
Social Security,

            Defendant.


                                    MEMORANDUM OPINION

     Frederick C.         Gilliland        ("Plaintiff"         or "Gilliland")               brings

this action seeking judicial review of a                            final      decision of the

Acting     Commissioner         of       the    Social        Security           Administration

("Defendant"       or    "Commissioner")         pursuant           to    Section      205 (g)    of

the Social Security Act,               42 U.S.C.     §    405(g),         denying his claim

for disability insurance benefits                   ( "DIB")        pursuant         to Title II

of the Social Security Act, 42 U.S.C.                    §§   401 et seq.

     This       matter   is    presently before           the       Court       on   Plaintiff's

Motion    for    Judgment      of    Reversal     [Dkt.       No.     10]      and Defendant's

Motion     for     Judgment         of    Affirmance           [Dkt.           No.    11] .      Upon

consideration of the parties'                  cross-motions,             the administrative

record,    the    entire      record      herein,    and      for        the    reasons       stated

below,    Plaintiff's         Motion     for    Judgment       of        Reversal      is     hereby
    granted,     and Defendant's Motion for Judgment of Affirmance is

    hereby denied.

    I .   BACKGROUND

          A.         Procedural Background

          On     July     31,    1986,       Plaintiff      filed   an     application          for

disability insurance benefits ("DIB"), claiming that starting on

April          13,     1985,    headaches       and       fatigue   left          him    disabled.
                                                                    1
Administrative Record ("AR") 22 [Dkt. No. 8]

          On    November        23,    1988,    Administrative          Law       Judge     Russell

Rowell          ("ALJ    Rowell")          issued    an   opinion   denying             Plaintiff's

application. AR 21-25. On January 18, 1990, the Social Security

Administration's                ("SSA")       Appeal      Council       denied          Plaintiff's

intra-agency appeal.                  AR 33-34.       Plaintiff did not             and was     not

required to bring an action in federal court at that time.

          In December of 1996, Plaintiff began working again, closing

the period of alleged disability. AR 96, 139, 146. Accordingly,

the period of alleged disability relevant to this matter covers

April 13, 1985 to December 1, 1996. AR 14, 146.

          On February 7,          2002,      the United States District Court for

the       Middle       District       of    Pennsylvania      approved        a    class     action

settlement in the matter of Grant v.                         Comm'r,     Soc.      Sec. Admin.,

1
     In January of 1986, Plaintiff, who is a Canadian citizen,
began receiving Canada Pension Disability Benefits. AR 14.
                                                    -2-
111    F.   Supp.     2d    556     (M.D.     Pa.     2000).     AR     35-37.    The     class

included "all applicants for Social Security disability benefits

       . who received an adverse decision from [ALJ] Russell Rowell

            on or after January 1,                  1985."     AR 35.    As    part     of   the

settlement, the SSA agreed to provide each eligible class member

with de novo review of his or her application by a different

ALJ.   AR 36. Defendant concluded that Plaintiff's DIB claim was

eligible for de novo review under the Grant settlement and sent

Plaintiff     a     letter       informing         him    of    his    right     to   another

hearing. AR 63-64.

       On December 14,           2 011,   ALJ James Mangrum             ( "ALJ Mangrum" or

"the ALJ") held a hearing at which Plaintiff, his counsel, and a

vocational expert were present. AR 233-58.

       On   January      26,      2012,     the     ALJ    denied      Plaintiff's      claim,

ruling that Plaintiff had not shown that he was disabled during

the period from April 13, 1985 through December 1, 1996. AR 14-

20.

       On   October        23,    2013,      the     SSA's     Appeal     Council       denied

Plaintiff's request for review of ALJ Mangrum's decision.· AR 6

("We    found       no      reason        under      our       rules     to      review      the

Administrative Law Judge's decision.                       Therefore,     we have denied

your request for review.").

                                              -3-
        On      December           20,        2012,          Plaintiff            filed        his     Complaint

challenging Defendant's denial of his claim for DIB pursuant to

42 U.S.C.         §    405 (g).          [Dkt.     No.       1].     On June 3,              2013,     Defendant

filed       its Answer.            [Dkt.       No.      7]      On August              2,    2013,     Plaintiff

filed       a   Motion          for     Judgment         of     Reversal.              [Dkt.     No.    10].     On

September 30,              2013,        Defendant            filed      a    Motion for           Judgment       of

Affirmance and its Opposition to Plaintiff's Motion for Judgment

of    Reversal.            [Dkt.        No.      11].        Finally,         on       October        16,     2013,

Plaintiff         filed          his      Opposition               to       Defendant's              Motion     for

Judgment of Affirmance and Response to Defendant's Opposition.

[Dkt . No. 14] .

       B.        Factual Background

       At       the    time        he     filed         this       action,         Plaintiff           Frederick

Gilliland was              80    years        old       and     resided           in    Kamloops,           British

Columbia,        Canada. AR 120;                   Pl.'s Compl.              [Dkt.      No.     1].    Plaintiff

had     earned         a        General          Equivalency                Diploma,           had     completed

journeyman steamfitter training,                               and had attended one year of

college. AR 171. Before the onset of his headaches and fatigue,

Plaintiff had worked as a pipefitter, pipefitter foreman, piping

general         foreman,         and     capital         project            superintendent.             AR     140,

156-60.         Most    recently,             he     had       served        as    a        capital     projects

supervisor in a pulp mill. AR 140, 156-60.

                                                         -4-
      Plaintiff        was       52    years       old     when    the     alleged         period     of

disability began on April 13,                      1985 and was 62 years old when he

returned      to   work,        ending       the    alleged period             of    disability on

December 1, 1996. AR 14-20, 146-47.

      In      March     of        1985,        Plaintiff          started           to     experience

debilitating         headaches         and    severe       fatigue.       AR     14-19,        189-192,

214-215.      Despite the investment of significant time and medical

resources,     none of the physicians who Plaintiff saw were able to

provide a diagnosis for his condition. Id.

      From February 19,                1986 until March 6,                1986,      Plaintiff was

hospitalized at         Foothills Hospital                 in Calgary,          Canada in order

to identify the cause of his                       "nonspecific illness characterized

by   extreme       fatigue,           malaise,         myalgias     and     left         orbital     and

retro-orbital        headache,          accompanying a            sense of          tugging at       the

left eye." AR 189-192. During that time,                            a number of physicians

examined      Plaintiff,         including         a     neurologist       and      an    ear,     nose,

and throat specialist. Id.

      The     doctors      at    Foothills          Hospital      were     unable         to   reach a

definitive      diagnosis         of    Plaintiff's            condition.       AR       189-192.    The

report      from     Foothills          Hospital          relates        that       "the       headache

follow [ed]    a     daily pattern with gradual onset                          in late morning,

increasing      in    severity          later      in    the    day.     [Plaintiff]           did   not


                                                   -5-
seem to have a nocturnal headache.                                He ha[d]    had several

episodes of pain,               severe enough to require hospitalization for

narcotics." AR 189.                 Plaintiff underwent a battery of tests and

examinations,            all    of   which     yielded   "essentially unremarkable"

results. AR 17-18. Dr. Mukherjee of Foothills Hospital did note,

however,      that        during      his    examination     Plaintiff       demonstrated,

"some    focal      tenderness         in the    left    supraorbital       region [.]"     AR

190. Unable to determine the cause of Plaintiff's symptoms, the

physicians          at     Foothills         Hospital    referred     him     to     a   pain

management clinic. AR 191. 2

        In   addition          to    the     specialists     at    Foothills       Hospital,

Plaintiff also met with his family physician, Dr. H.C. Muendel.

AR 146,      206,    214-215,         221.   Plaintiff first visited Dr.             Muendel

in July of          1985       and described the         reasons    for   his      visits   as

"examination,"           "treatment,"         "diagnosis,"    and "prescri[ption of]

medication." AR 2 06. Although at one point,                       Plaintiff described

his visits with Dr. Muendel as "irregular," AR 206, by June 10,

1987,    Plaintiff was visiting Dr. Muendel an average of twice a

month, AR 221.

2
      The record contains mention of Epstein-Barr virus. AR 218,
234-58. Plaintiff brought up Epstein-Barr virus during his
hearing and a letter written by a member of the Canadian
Parliament asserts that Plaintiff had the virus. AR 18, 234-58.
However, there is no evidence in the record that a physician
ever diagnosed Plaintiff with that disease. AR 18-19.
                                                -6-
        Although        many        of     Dr.       Muendel's      records     were     lost     or

destroyed when he relocated his practice, AR 146, Plaintiff was

able to recover a               letter summarizing his findings,                       AR 214-15.

The     letter       notes     that       Dr.    Muendel      was    unable     to     identify    a

"specific cause" of Plaintiff's intense, recurrent headache. Id.

"However,        it   ha [d]     been determined              that     [the    headache]     [was]

related to the facial nerves over the left eye." Id. Dr. Muendel

wrote,       "[t] hat    nerve       has     been       injected by myself            and by the

anesthesiologist, Dr. Dhiel,                         several times with dramatic relief

of pain for a short period of time,                           half an hour to four hours

of dulling of the pain."                     Id.      Near the end of his letter,               Dr.

Muendel added that " [s] ince the onset of this, at present time,

incurable           headache,            [Plaintiff]         has     also     become     somewhat

depressed." Id.

        Plaintiff's headaches severely affected nearly every aspect

of    his     life.     AR     235-58.          He    experienced      fatigue,       "headaches,

joint       pain,     loss     of    memory,          inability      to     express     [himself],

[and]       severe      weakness."          AR       165.   Until     Plaintiff's       condition

abated in December of                    1996,       Plaintiff spent much of his                time

sleeping,       "required a big effort                      just to walk up a           flight of

stairs[,]" and "spent his days in and out of consciousness." AR

17-20, 146-47.

                                                      -7-
        Because          of        the        passage        of     time       between         Plaintiff's

submission of his DIB application in 1985 and his most                                               recent

hearing      before ALJ Mangrum                      in     2011,       many potentially           relevant

medical records are absent from the record. AR 236-37.                                           Plaintiff

was     able       to     recover             several        documents         from        the     Canadian

government,         including Dr.               Muendel' s          letter and the             report    from

Foothills          Hospital.             AR    237-42.        Unfortunately,              Defendant      was

unable       to     recover          any       of     the     32    exhibits         appended       to   ALJ

Rowell's 1988 decision. AR 239.

        c.        Disability Deter.mination Process

        In order to qualify for disability insurance benefits,                                               an

individual must prove that she has a disability that renders her

unable "to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment" for

a period of "not less than 12 months." 42 U.S.C.                                          §§   423 (a) (1)    &


(d) ( 1) (A) .     The       claimant          must       support        her   claim      of     impairment

with     "[o]bjective              medical           evidence"          that   is     "established           by

medically           acceptable                 clinical            or     laboratory             diagnostic

techniques."            42         u.s.c.        §     423 (d) (5) (A).         In        addition,       the

impairment         must       be    severe          enough to prevent               the    claimant      from

doing    either her previous work or any other work                                            commensurate




                                                       -8-
with her age,           education,            and work experience that exists in the

national economy. 42 U.S.C. § 423(d) (2) (A).

      The     SSA      uses     a       five-step       evaluation process                to    determine

whether      a        claimant          is        disabled,        and     thus,     qualified            for

benefits.        20 C.F.R.          §    404.1520(a) (1).               A clear determination of

disability or non-disability at any step is definitive,                                             and the

process ends at that step. 20 C.F.R.                           §    404.1520(a) (4).

      In     the      first     step,         a     claimant       is    disqualified          if   she    is

currently engaged in "substantial gainful activity." 20 C.F.R.                                              §


404.1520 (a) (4) (i).

      In the second step,                     a claimant is disqualified if she does

not   have       a    "severe       medically           determinable         physical          or    mental

impairment" that is proven "by medically acceptable clinical and

laboratory           diagnostic          techniques."              20     C.F.R.     §§     404.1508        &

404.1520 (a) (4) (ii).

      In the third step, a claimant qualifies for benefits if her

impairment (s)          meet (s)         or       equal (s)    an       impairment        listed     in    20

C.F.R.      part        404,        subpart            P,     appendix        1.      20       C.F.R.       §


404.1520 (a) (4) (iii).

      Between the third and fourth steps,                                 the SSA relies on the

entire record to make a determination of the claimant's residual

functional           capacity       ( "RFC"),        which is           "the most     [the claimant]


                                                      -9-
can     still        do      despite           [the]     limitations"          created         by   the

impairment. 20 C.F.R. §§ 404.1520(a) (4)                          &   404.1545(a) (1).

        In the fourth step,                 a    claimant       is disqualified if her RFC

shows    that       she is still able to do her past relevant work.                                   20

C.F.R. § 404.1520(a) (4) (iv).

        In the       fifth        step,    a    claimant     is disqualified if her RFC

shows that she is capable of adapting to uother work that exists

in    the    national         economy."           20    C.F.R.        §§   404.1520(a) (4) (v)         &


404.1545 (a) (5) (ii) . If the claim survives these five steps,                                     then

the    claimant        is    determined           to    be   disabled        and   qualifies         for

benefits . 2 0 C . F . R . § 4 0 4 . 15 2 0 (a) ( 4 ) (v) .

        This    case        centers        on    the     second       step    of   the     five-step

analysis.

       D.      The ALJ's Ruling

       After the hearing on December 14,                          2011,      the ALJ found that

Plaintiff       umet        the    insured        status     requirements          of    the    Social

Security       Act    during        the        period     from    April      13,   1985,       through

December       1,    1996[,]"        the       alleged period of             disability.       AR    16.

Continuing on to step one of the five-step disability evaluation

process,       the    ALJ     concluded          that     Plaintiff        udid    not    engage      in

substantial          gainful        activity           during     the      [alleged      period       of

disability.]" AR 16.


                                                   -10-
      At   step       two,   the      ALJ     determined         that,     despite    the   many

tests and examinations that Plaintiff underwent,                              "there were no

medical       signs     or      laboratory        findings            to   substantiate       the

existence of a medically determinable impairment [.]" AR 17.                                  He

noted that "[a]lthough the record confirms that the claimant had

experienced       a     host       of       neurological          and      fatigue    symptoms

beginning on the alleged onset date of March 1985,                                 all of the

claimant's workup from March 1985 through his hospitalization in

February and March 1986 were [sic] essentially unremarkable." AR

18. The opinion emphasizes that none of the physicians Plaintiff

consulted      were      able      to    arrive       at    a     "formal     di?-gnosis"      or

identify a "specific cause" of Plaintiff's symptoms. AR 17-18.

      Because     failure        at     any    step    of       the    five-step     evaluation

process is fatal to a DIB claim, the ALJ did not proceed to step

three. He concluded that Plaintiff "was not under a disability,

as defined in the Social Security Act,                           at any time from April

13,   1985,    the alleged onset date,                 through December 1,             1996[,]"

and therefore, was not entitled to DIB. AR 20.

II.   STANDARD OF REVIEW

      Judicial        review     in     Social        Security        disability      cases    is

limited by statute to determining whether the                               findings of the

Commissioner are supported by substantial evidence. 42 U.S.C.                                   §


                                               -11-
405 (g); Butler v. Barnhart,                 353 F.3d 992,             999       (D.C. Cir. 2004);

Poulin v. Bowen, 817 F.2d 865, 870                       (D.C. Cir. 1987). 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)          (internal          quotation          marks

omitted), requiring "more than a scintilla, but                                               something

less    than      a     preponderance             of     the         evidence[s]"             Fla.      Gas

Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).

       While     the     Court       must     "carefully             scrutinize           the     entire

record,"       Butler,       353    F.3d     at        999,     it     may       not      reweigh       the

evidence or supplant               the SSA' s          judgment on the weight                    of     the

evidence with its own judgment,                        Davis v.        Heckler,           566 F. Supp.

1193, 1195      (D.D.C. 1983). It must only review whether the ALJ's

findings are based on substantial evidence and whether                                          th~     ALJ

correctly applied the               law.     Butler,          353    F.3d at           999;    Davis v.

Shalala, 862 F.Supp. 1, 4 (D.D.C. 1994).

III. ANALYSIS

       A.   Weight Given to Dr. Muendel's Opinion

       Plaintiff         contends            that         the          ALJ         ( 1)         provided

"insupportable" reasons for rejecting Dr. Muendel's opinion,                                            (2)

failed to give Dr.             Muendel' s      opinion the              "controlling weight"

appropriate       for    a     "treating          physician,"              and     (3)        failed     to


                                              -12-
properly evaluate Dr. Muendel's medical opinion independently of

the controlling weight analysis.                              Pl.'s Mot.           at    3-6.     Defendant

argues that the ALJ correctly gave Dr. Muendel's opinion "little

weight"         because        ( 1)      Dr.            Muendel            lacked         a      "treatment

relationship"           with    Plaintiff              and      (2)     other       evidence         in    the

record contradicted Dr. Muendel's Opinion. Def.'s Opp'n at 6-9.

                1. Treating Physician Rule

       Our      Court    of    Appeals            has        made     clear     that          " [b] ecause    a

claimant's treating physicians have great familiarity with [her]

condition,       their reports must be accorded substantial weight."

Butler v. Barnhart, 353 F.3d 992, 1003                                (D.C. Cir. 2004)              (quoting

Williams v.       Shalala,       997 F.2d 1494,                     1498    (D.C.       Cir.    1993)).      "A

treating        physician's           report           'is     binding        on        the     fact-finder

unless     contradicted by             substantial                 evidence.'"           Id.      Thus,      an

"ALJ     'who    rejects       the opinion of                  a     treating physician                [must]

explain his [or her] reasons for doing so." Id.

       In addition,           the SSA has issued regulations providing that

so long as a treating physician's "opinion on the issue[] of the

nature     and    severity        of        [a        claimant's]          impairment[]           is      well-

supported        by     medically           acceptable                clinical          and      laboratory

diagnostic       techniques           and        is    not     inconsistent             with     the      other

substantial evidence in                 [a claimant's]                 case record [,] " it will


                                                      -13-
receive     "controlling              weight."       20    C.F.R.     §§        404.1527(c) (2),

416.927 (c) (2)         Section 404.1527 (c) (2)             makes clear that the SSA

"will always give good reasons in [its]                           notice of determination

or decision for the weight                  [it] gives       [each claimant's] treating

[physician's] opinion."

                       a.       ALJ's Reasons for According "Little
                                Weight" to Dr. Muendel's Opinion

     The     ALJ       offered        two    reasons        for    giving        Dr.     Muendel's

opinion "little weight." AR 19. He stated "[f] irst                                           [that]

no specific caused [sic] had been found to explain [Plaintiff's]

symptoms,"     and           "[s]econd,         [that]    contrary        to     Dr.     Muendel's

report,    there        is     no   evidence       that     the    claimant       suffered         any

persistent     depression             during       the    period     at        issue."      AR      19.

Neither of these reasons withstands scrutiny.

     First, as the Court discusses more fully below, the ALJ was

wrong that a           claimant must            show a    "specific cause[]                          to

explain      [his]           symptoms [ . ] "      AR     19.     Claimants            need        only

demonstrate        a        "medically          determinable        physical           or     mental

impairment,"       42        U.S.C.    §§    423 (d) (1) (A),       that       "result [s]         from

anatomical,    physiological,               or psychological abnormalities which

can be     shown by medically                acceptable         clinical        and    laboratory

diagnostic     techniques[,]"               20     C.F.R.       404.1508.        There        is     no

support for the ALJ's assumption that the opinion of a physician
                                                 -14-
who fails        to    identify a       specific cause of             symptoms     should be

accorded little weight.

        Nor    is     there     any   substantial        evidence      in   the    record    to

contradict Dr.          Muendel' s opinion.           Butler,       353 F. 3d at 1003.       In

fact,    Dr.     Muendel's inability "to find a definitive diagnosis"

was     consistent       with     the    opinions      of     the    "general     physician,

[the]    neurologist,         and     [the]    ear,   nose,     and throat specialist"

in this case, all of whom had the same difficulty. AR 19.

        Second,       the ALJ' s      decision to give Dr.             Muendel' s    opinion

"little        weight"     because       of     the    doctor's        comment     regarding

depression is baffling. Near the end of his June 20, 1986 letter

discussing          Plaintiff's         condition,        Dr.       Muendel     noted      that

"[s]ince the onset of this, at present time, incurable headache,

[Plaintiff] has also become somewhat depressed." AR 215. The ALJ

misinterpreted this brief,                offhand comment            as an opinion that

Plaintiff        "suffered                     persistent       depression        during    the

period at        issue."      AR 19.     That    is simply not what Dr.              Muendel

wrote.     Dr.        Muendel     did    not     opine      that      Plaintiff     suffered

persistent depression. Nor did he suggest that depression caused

Plaintiff's           disability.        The     ALJ's        interpretation         of     Dr.

Muendel's comment and subsequent determination that the doctor's




                                               -15-
opinion       deserved            "little     weight"        are    not         supported        by

substantial evidence.

        The ALJ was required to give                   "good reasons,"            2 0 C. F. R.    §


404.1527(c) (2),              supported       by   substantial           evidence,         before

discounting Dr. Muendel's opinion,                     Butler v.     Barnhart,        353 F.3d

992, 999 (D.C. Cir. 2004). The reasons he gave fail to meet that

test.

                        b.        Treatment Relationship

        Defendant       responds       that    the ALJ was not           required to give

Dr. Muendel's opinion controlling weight because Dr. Muendel was

not,    in fact,        Plaintiff's treating physician. Def.'s Mot. at 8-

9.

        The   SSA's          regulations       provide       that    a     claimant's         own

physician        "who     provides       medical      treatment     or     evaluation"        and

"has,    or has had,              an ongoing treatment         relationship" ·with the

claimant      is    a        "treating      source."    20    C.F.R.       §    404.1502.        An

"ongoing      treatment            relationship"        exists      when        the    "medical

evidence establishes" that the claimant "see [s] ,                             or ha [s]    seen,

the     source     with       a   frequency    consistent      with      accepted medical

practice      for   the       type of     treatment      and/or evaluation required

for [her] medical condition." Id.




                                               -16-
      Evidence          in the        record shows             that       Plaintiff             consistently

referred        to     Dr.    Muendel        as    his        "family doctor              11
                                                                                                or    "personal

physician,      11
                      AR 146,       206,      sought      "treatment          11
                                                                                    from him,           AR 206,

214-215,    and by June 10, 1987 visited him an average of twice a

month,     AR        221.    Yet,     the     ALJ       failed       to       consider              whether    Dr.

Muendel was a treating physician.

      Accordingly,             there         are        two        problems          with           Defendant's

argument that Dr.              Muendel was not a treating physician.                                        First,

there is little support in the record for that contention.                                                      In

Defendant's           Motion,       Defendant           points        out          what        is    clearly     a

mistake: On a lengthy form dated March 10, 1986, Plaintiff wrote

that he first saw Dr. Muendel in July 1985 and that he last saw

him   in    February          1985.        Def.'s       Mot.        at    8-9.        Those          dates,     of

course,    cannot be accurate.                    Mr.     Gilliland made a mistake. Most

likely,     he       meant     to     write        that       he    last       saw        Dr.       Muendel     in

February        of     1986,        the      month      before           he        completed          the     form

Defendant        cites.       AR     2 06.    Defendant's             argument- -that                 Plaintiff

should     be        foreclosed       from        putting          forth      Dr.         Muendel        as    his

treating physician because Plaintiff once provided an obviously

incorrect date on a form sent to the Canadian government--is not

persuasive.




                                                   -17-
        Second,      as Plaintiff correctly contends,                           the ALJ entirely

failed to consider whether Dr. Muendel was Plaintiff's treating

physician. The Court "must judge the propriety of                                     [the agency's

determination]            solely by the grounds invoked by the agency [,]"

SEC v.       Chenery 332 U.S.              at 196,       and therefore,          cannot now rely

on   Defendant's               post-hoc     justifications,              Butler,      353       F.3d    at

1002.

                          c.        Well-Supported by Medically Acceptable
                                    Clinical and Laboratory Diagnostic
                                    Techniques

        20    C.F.R.           §    404.1527(c)(2)          specifies        that          a    treating

physician's          opinion           must       be     "well-supported             by        medically

acceptable          clinical         and    laboratory           diagnostic        techniques"           in

order    to    receive             controlling         weight.     The    ALJ    found         that     the

record did not contain evidence of "medical signs or laboratory

findings       to        substantiate         Plaintiff's          claims       of     a       medically

determinable impairment"- -the ultimate issue at step two of the

five step evaluation process. AR 19. One could read that broader

conclusion          to     suggest         that    the     ALJ     believed          Dr.       Muendel's

treatment of Plaintiff failed to involve clinical and laboratory

diagnostic techniques.

        However,          "[w]hile          this       interpretation           may        have        some

intuitive appeal,                  the ALJ did not articulate this view in his

                                                   -18-
decision [,]" as he must in order for this Court to rely on it.

Butler, 353 F.3d at 1002 (citing Chenery Corp., 332 U.S. at 196)

(declining to       accept       Commissioner's       contention that           "ALJ must

have     interpreted"     treating        physician's         opinion    that    claimant

"should never stoop to mean that she should stoop very little or

only occasionally"). The ALJ never opined as to whether or not

Dr.    Muendel's     opinion       was    supported      by    medically        acceptable

clinical and laboratory diagnostic techniques. Consequently, the

record     is     bare.     For     the    purposes      of      a    reviewing      court

considering a motion for judgment of reversal,                       "it is sufficient

that the ALJ did not say this and certainly did not explain it."

Jones v. Astrue, 647 F.3d 350, 356 (D.C. Cir. 2011).

                    d.      Not Inconsistent with Substantial Evidence
                            in the Claimant's Record

       Finally,     both our       Court    of Appeals'         rulings      on treating

physicians,     as well as the SSA's regulations,                    permit an ALJ to

discount medical opinions in conflict with substantial evidence

in the record. Butler, 353 F.3d at 1003                   ("A treating physician's

report    is    binding     on    the     fact-finder     unless        contradicted    by

substantial       evidence.");       20    C.F.R.    §   404.1527 (c) (2)        (Treating

physician's       opinion     otherwise       in     accordance       with      regulatory

requirements       receives       controlling       weight     if    "not    inconsistent



                                           -19-
with     the     other     substantial       evidence     in     [claimant's]             case

record. ") .

       Defendant        argues    that   "[t]he     'essentially         unremarkable'

examination       and     testing    results     contained     in     the     record       are

inconsistent       with     Dr.     Muendel's     opinion      that     Mr.    Gilliland

suffered from extreme limitations associated with a                            completely

disabling impairment." Def.'s Opp'n at 9.

       This argument is unpersuasi ve.             The ALJ offered no support

for    it   in    his     opinion.    Instead,     he   merely        stated       that     no

physician was       able     to   reach a      definitive diagnosis,               that    all

laboratory results were essentially unremarkable,                        and that he,

therefore, gave Dr. Muendel's opinion "little weight." AR 19. He

did not explain why the treating physician's opinion should be

given "little weight" just because other laboratory results were

unremarkable and failed to lead to a diagnosis.

       Moreover,    it does not logically follow that merely because

the    tests performed yielded           "essentially unremarkable results"

Plaintiff      did not      suffer    "from extreme       limitations          associated

with a completely disabling impairment." Def. 's Opp' n at 9. The

doctors     at    Foothills       Hospital     referred     Plaintiff         to    a     pain

management       center    in order      to give    him some          relief       from    his




                                          -20-
"blinding"          headaches       and    fatigue            even    though    they       could     not

reach a specific diagnosis of his condition. AR 191, 254.

        Finally,        Dr.        Muendel 1 s          most         specific           finding--that

Plaintiff,s          "intense       recurring           headache"       was    "related         to    the

facial       nerves    over     the       left    eye [,]"       AR    214-15-- is         consistent

with notes          from the       Foothills Hospital                 that    "there      [was]      some

focal    tenderness in             [Plaintiff, s]         left supraorbital region." AR

190.

               2.      Proper Weight for Medical Opinions not Deemed
                       Controlling

        Plaintiff contends that                  even if Dr.           Muendel,s         opinion was

entitled       to     less    than     controlling             weight,       the    ALJ     erred      by

failing       to    properly        assess       it     in     line    with     the       regulations

applicable to all medical 'opinions.                          Pl., s Mot. at 7-9.           Plaintiff

is correct.

        20   C.F.R.     §§    404.1527(c)              sets    out    six     factors      that      ALJs

must    consider when applying weight to any medical                                    opinion:      ( 1)

the    examining       relationship;             (2)    length,       nature,       and    extent      of

the    treatment       relationship;             (3)     supportability            of    the   opinion

with relevant medical                evidence;          (4)    consistency of            the opinion

with the       record as       a    whole;        (5)    specialization of               the medical

source;      (6)    other factors that tend to support or contradict the

medical opinion.         The regulation provides that "[u]nless                                [an ALJ]
                                                 -21-
give [s]         a   treating          source's       opinion controlling weight                                 •   I




[she]       [will]          consider      all     of     [these]       factors             in     deciding      the

weight                . give[n]         [to] any medical opinion." Id.

        Plaintiff            argues       that        "there     is     no       indication              from   the

[ALJ' s]         decision that            [he]     considered any of                       these      factors    in

his determination to give Dr.                           Muendel's medical opinion 'little

weight.'"            Pl.'s     Mot.      at     8-9      (emphasis          in    original)              Notably,

Defendant's brief does not address this argument.

        To be sure,               an    "ALJ     [is]    not     required to discuss each of

the     relevant            regulatory         factors         when    deciding             what      weight     to

give"    a medical opinion.                    Paris v.         Astrue,          888       F.    Supp.    2d 100,

105     (D.D.C.        2012)       (emphasis          added).        "[T] he      regulation requires

the ALJ to            'consider'         certain factors,              but does not require the

ALJ    to    recite          and discuss          each of        the        factors             in the    written

decision."            Id.    In    this       case,      however,       there          is        no   indication

that     the         ALJ     gave       reasonable         consideration                    to     any    of    the

relevant             factors.           Pursuant           to         the        Commissioner's                 own

regulations,               the ALJ must          "give good reasons"                       "for the weight"

given       to       Dr.    Muendel's          opinion.         20    C.F.R.           §        404.1527(c) (2).

This he did not do.




                                                        -22-
        B.      Step Two: Severe Medically Deter.minable Impair.ment

        At step two of the five-step evaluation process, a claimant

must show that she has a "severe medically determinable physical

or     mental     impairment."           20     C.F.R.        §       404.1520(a) (4) (ii).        The

impairment        "must      result        from       anatomical,           physiological,          or

psychological abnormalities" and "must be established by medical

evidence        consisting          of        signs,      symptoms,              and     laboratory

findings." 20 C.F.R. 1508. "An individual's statement as to pain

or     other    symptoms"      is    not       enough.       42       U.S.C.     §    423 (d) (5) (A).

"[T] here      must    be    medical          signs    and        findings,          established    by

medically         acceptable          clinical           or           laboratory         diagnostic

techniques, which show the existence of a medical impairment[,]

         [that] could reasonably be expected to produce the pain or

other symptoms alleged [.]" Id.

        Because claimants experiencing pain cannot rely solely on

subjective       reports      of     their       own     symptoms,             "[t]he    applicable

regulations prescribe a two-step process to determine whether a

claimant suffers from symptoms                    (including pain)               that affect her

ability to perform basic work activities." Butler,                                      353 F.3d at

1004     (citing      20    C.F.R.       §§    404.1529           &    416.929).        "First,     the

claimant       must    adduce       'medical          signs       or     laboratory'        findings

evidencing       a     'medically         determinable                impairment        that      could

                                                -23-
reasonably be expected to produce'                        the alleged pain."           Id.     The

second step          focuses    on severity and             "assesses the persistence

and intensity of the claimant's pain as well as the extent to

which it impairs her ability to work." Id.

       For clarity's sake,             the Court notes that a                  claimant need

not provide evidence of a specific medical diagnosis. At several

points,       the ALJ's opinion makes reference to the absence of a

specific       diagnosis       of   the       illness     giving   rise    to    Plaintiff's

symptoms.       See,    e.g., AR 19            ("[A] ll the results from March 1985

through his February 1986 hospitalization failed to establish a

formal        medically       determinable          diagnosis.");         AR     19     ("[T]he

current record contains no evidence of a medically determinable

impairment.          Through    his       hospitalization          in   March     1986,        the

claimant       had      undergone         an     extensive     workup      and        had     been

evaluated by a number of specialists, none of whom were able to

arrive at a formal diagnosis.").

       42     U.S.C.     423 (d) (5) (A)        speaks    of   "diagnostic       techniques"

that may establish a medically determinable impairment, but the

statute does           not   require      a    particular diagnosis.            The    same     is

true     of    the     SSA's    implementing             regulations.     See     20        C.F.R.

§404 .1508      (Impairments "must be established by medical evidence

consisting of signs,            symptoms,         and laboratory findings[.]");                 20


                                                -24-
C. F. R.     §4 04. 152 8    ("Signs must be              shown by medically acceptable

clinical diagnostic techniques.                                . Laboratory findings                 .

can be shown by use of [the same].")

        To    the      extent     the      ALJ    determined            that      Plaintiff's        claim

failed       at    step     two     for    lack    of     a    specific        medical        diagnosis,

that determination was error.

                  1.    Medically Deter.minable Impair.ment Demonstrated by
                        Medical Signs or Laboratory Findings

        Plaintiff had the burden of putting forth "medical signs or

laboratory             findings           evidencing           a        medically        determinable

impairment          that    could     reasonably be                expected       to    produce          [his]

alleged       pain."        Butler,        353    F.3d        at    1004       (internal       quotation

marks      omitted).        He    contends        that        he   met     this    burden with Dr.

Muendel' s        letter.        Plaintiff        argues       that       "Dr.    Muendel       detailed

that     Plaintiff's          chronic        headache          condition          was   confirmed           by

verifiable signs             ('dramatic relief of pain for a short period of

time,      half an hour to four hours of dulling of the pain[,]'                                           [AR

214]),       using medically acceptable clinical diagnostic techniques

('That        nerve        had      been         injected          by     myself        and     by         the

anesthesiologist,             Dr.     Dhiel,       with       dramatic         relief     of    pain [,] '

[AR 214])." Pl.'s Mot. at 11.




                                                   -25-
      Defendant      contends that Dr.                Muendel' s        injection technique

failed to produce medical signs or laboratory findings because

he relied on "Mr.          Gilliland's statements regarding relief from

pain." Def.'s Opp'n at 12. Defendant notes that symptoms, which

are a   claimant's        "own description of                  [her]    physical or mental

impairment,"    20 C.F.R.          §    404.1528,         are insufficient to show a

medically determinable impairment. Def.'s Opp'n at 11. However,

there is no record evidence as to whether Dr. Muendel based his

observation     of        "dramatic        relief         of     pain"       on     Plaintiff's

statements or on some other observed phenomenon.

      The    SSA's    Program          Operations         Manual       System     acknowledges

that '"[i]n     clinical       practice,              a   sharp        distinction         between

[medical]    signs and symptoms                cannot      always be         found."       Program

Operations Manual         System        (POMS)        DI 24501.020 Symptoms,                 Signs,

and Laboratory Findings                (S.S.A. August 9,            2012)       Because it is

sometimes     "necessary      to        distinguish         symptoms         from        signs   and

laboratory findings[,]"         the Manual offers suggestions as to how

to make     that distinction.            Id.     Of particular relevance to this

case, "signs can be observed by the clinician or can be elicited

in   response   to    a    stimulus        or    action        by      the   clinician."         Id.

"[T]hey. require      professional              skill      and      judgment        to    evaluate




                                               -26-
their presence and severity as opposed to the mere noting and

reporting of an individual's statements." Id.

        The ALJ completely failed to discuss whether Dr. Muendel's

injection technique               produced the medical                   signs      and laboratory

findings        necessary         to      demonstrate         a     medically          determinable

impairment.          The    Court        is    left    to    speculate        whether      the    ALJ

mistakenly disregarded Dr.                     Muendel' s     technique because it fell

short    of     a     diagnosis,          see     discussion        supra.       pp.     24-25,     or

whether       the    ALJ     believed,          as    Defendant      now      argues,     that     any

results produced by the injections were dependent on Plaintiff's

subjective reports of pain.                      The ALJ' s        failure       to address this

point     was       error.        "The        judiciary      can     scarcely          perform     its

assigned      review        function,          limited      though       it   is,    without      some

indication          not    only    of     what       evidence      was    credited,       but     also

whether other evidence was rejected rather than simply ignored."

Butler, 353 F.3d at 1002                      (quoting Brown v. Bowen,               794 F.2d 703,

708 (D.C. Cir. 1986) . 3



3
     Plaintiff also contends that the ALJ should have applied
the SSA's most recent guidance regarding the evaluation of
migraine headaches. Pl.'s Mot. at 9-10 (citing Social Security
Administration, National Question and Answer 09-036       (S.S.A.
December 15, 2009)). However, neither Plaintiff nor Dr. Muendel
ever allege that Plaintiff suffered specifically from migraine
headaches, and the Foothills Hospital report contains evidence
tending to rule out a "cluster migraine" diagnosis, AR 191.
                               -27-
                 2.      Severity of Plaintiff's Impair.ment

          At step-two, a Social Security claimant must show not just

a     medically        determinable          impairment,          but    a    "severett             one.   20

C.F.R. 404.1520 (a) (4) (ii).

          Plaintiff argues that                the ALJ failed to apply the proper

guidelines to determine the severity of Plaintiff s impairment.                      1




Pl. s Mot. at 11-14. In actuality, the ALJ did not consider the
      1




issue at all. AR 18-19.

          The record is rife with uncontradicted evidence indicating

the       extreme      severity of          Plaintiff, s         symptoms.      However,              having

concluded that Plaintiff was unable to demonstrate the existence

of a medically determinable                      impairment,           the ALJ mentioned the

issue of severity only to say that Plaintiff had the burden of

proving it. AR 18.

          C.     Appropriateness of Remand

          Courts       reviewing         determinations          by     the    Commissioner                may

remand         cases    for    further        action        or   the    taking           of       additional

evidence.        42    U.S. C.      §    405 (g) .    Plaintiff argues that                       the Court

should         exercise       its       discretion      and      remand       this           case    to    the

Commissioner solely for an award of benefits. Pl.                                    1
                                                                                         S    Mot. at 14-

16.       He also argues            that    the already antique                record cannot be

further        developed       on       remand       because     the    passage              of     time   has

                                                     -28-
limited the evidence available/                                Pl. s Mot.
                                                                        1
                                                                                       at 15   1       and that the

record contains sufficient evidence to proceed with steps three/

four/       and five of the evaluation process.                                        Id.   Finally                1   citing

Lockard v. Apfel/                  175 F.Supp.2d 28                 1       34    (D.D.C.    2001)      1       Plaintiff

notes that the Court should take account of the extraordinary

number       of    years           that    have   passed                    since      Plaintiff            filed           his

initial claim for DIB and place an extra weight in the scale in

favor of awarding benefits. Pl. s Mot. at 15.      1




          Defendant               counters      with               a            long    list           of               factual

determinations the Court would have to make in order to award

benefits.         Def. s Mot.
                          1
                                           at 13-15.               Defendant also argues that an

award of benefits would exceed the scope of the Court                                                       1
                                                                                                                S       review.

Def. s Mot.
      1
                    at 14           ("This Court s role is limited to evaluating
                                                       1




'whether the ALJ s finding that she is not disabled is supported
                              1




by substantial                evidence       and was               reached based upon a                                 correct

application of the relevant law.                           1
                                                               "    Craig v. Chater                1   76 F.3d 585/

589 (4th Cir. 1996)).

          The Court is very mindful of how truly unfortunate it is

that Plaintiff        1       now over 80 years old                         1    must continue to wait for

resolution of his claim. The Court realizes that its own lengthy

delay in deciding the Motions has only worsened the situation/

and       apologizes          to     Mr.     Gilliland                  for      its   tardiness.                   However/


                                                  -29-
remand for consideration of steps two through five is required.

The SSA' s    regulations instruct that            if it finds a        claimant is

not   disabled   at   any    step,     it   will    not     continue     on   to   the

remaining steps.      20 C.F.R.       §404.1520    (a) (4).    In this case,       the

ALJ   found   Plaintiff     to   be   not   disabled      at   step    two,   leaving

undone any analysis of the remaining steps and necessary factual

findings.

IV.   CONCLUSION

      For the foregoing reasons,            Plaintiff's Motion for Judgment

of Reversal is hereby granted, and this case is remanded to the

Social   Security     Administration        for    speedy      consideration;      and

Defendant's Motion for Judgment of Affirmance is hereby denied.




September 15, 2014                                ~~~
                                               GlaySKeSer
                                               United States District Judge




Copies to: attorneys on record via ECF




                                        -30-
