                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                                )
EUGENE HUNTER,                                  )
                                                )
                Plaintiff,                      )
                                                )
        v.                                      )       Civil Action No. 10-89 (RMC)
                                                )
MICHAEL J. ASTRUE,                              )
Commissioner of Social Security,                )
                                                )
                Defendant.                      )
                                                )

                                   MEMORANDUM OPINION

                Eugene Hunter moves for a Judgment of Reversal against Defendant Michael J.

Astrue, Commissioner of Social Security, arguing that Defendant’s final administrative decision fails

to be supported by substantial evidence and is erroneous as matter of law. In the alternative, Plaintiff

moves the Court, pursuant to 42 U.S.C. § 405(g), to remand the case back to the Social Security

Administration for a new administrative hearing. Defendant opposes Plaintiff’s motion, and moves

for Judgment of Affirmance, arguing that Defendant’s decision is supported by substantial evidence

and is free of legal error. The Court agrees with Defendant, and will therefore grant Defendant’s

Motion for Judgment of Affirmance and deny both Plaintiff’s Motion for Judgment of Reversal and

Plaintiff’s alternative Motion to Remand pursuant to 42 U.S.C. § 405(g).

                                              I. FACTS

               Plaintiff is a fifty-year old man who resides in Washington D.C. See Pl.’s Mem. in

Support of Mot. for J. of Reversal [Dkt. # 15] at 1–2. On February 22, 2007, Plaintiff suffered a

right tibial plateau fracture, and the next day underwent open reduction and internal fixation surgery,
followed by a regimen of physical therapy. Id. Plaintiff has not been employed since this injury in

2007. Id. Prior to that time, Plaintiff was employed as an assistant manager for a U-Haul facility,

and prior to that, he was employed as a manager for both Greyhound and Consumer Value Stores

(“CVS”). Id. at 2. Plaintiff has a high school education and no additional training. Id. at 2.

               On August 15, 2007, based upon his tibial fracture, Plaintiff filed for Supplemental

Security Income Benefits pursuant to the Title XVI of the Social Security Act. Id. at 1. Plaintiff’s

claim was denied, and then denied once again upon reconsideration. Id. On April 22, 2008, Plaintiff

requested a hearing before an Administrative Law Judge (“ALJ”). Id. at 2. On September 14, 2009,

a hearing was held, and on September 23, 2009, Plaintiff’s claim was again denied by the ALJ in a

written decision. Id. Plaintiff requested review by the Appeals Council, and on November 9, 2009,

it concluded that there was no basis for granting such a review. Id.


                                   II. LEGAL STANDARDS

               A. Standard of Review

               Judicial review in Social Security cases is statutorily limited to determining whether

the findings of the Commissioner are supported by substantial evidence. 42 U.S.C. § 405(g); Brown

v. Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986). Substantial evidence is “such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

               B. Process to Determine Whether Individual is Considered “Disabled”

               “Disabled” under the Social Security Act is defined as “the inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impairment



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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) (emphasis added).

                For purposes of determining whether a person is disabled under
                (d)(1)(A), [a]n individual shall be determined to be under a disability
                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). Under the statute, a “‘physical or mental impairment’ is an impairment

that results from anatomical, physiological, or psychological abnormalities which are demonstrable

by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). As

such, “[a]n individual shall not be considered to be under a disability unless he furnishes such

medical and other evidence of the existence thereof as the Commissioner of Social Security may

require.” 42 U.S.C. § 423(d)(5)(A).

                To determine whether an individual is “disabled” under the standard above, a

five-step evaluation process is employed. See 20 C.F.R. §§ 416.905, 416.920. If an individual is

found not disabled at any step, then movement to the next step is unnecessary.                   Id. at

§ 416.920(a)(4). First in the five-step process is determining whether an individual is engaged in

substantial gainful work. Id. at § 416.920(a)(4)(i). If so, the individual is deemed not to be disabled,

despite any medical evidence or other contraindications. Id. at § 416.920(b). Second, if not

gainfully employed, an individual must have a severe impairment to be considered disabled. Id. at

§ 416.920(c). If an individual does not have a severe impairment (or multiple impairments) that last

for a continuous twelve months, that individual does not have a disability. Id.; see also § 416.909

(requisite duration of disability is twelve consecutive months). Third, if an “impairment” suffered


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by an individual is of requisite duration and is listed in the Commissioner’s regulations, or is equal

to an impairment listed in the Commissioner’s regulations, then the individual is considered

disabled. Id. at § 416.920(d). If an individual’s impairment does not meet or equal a listed

impairment, a residual functional capacity assessment will be conducted based upon relevant medical

and other evidence, which will be utilized in the next two steps to determine the breadth and type

of work the impairment might exclude or not exclude. Id. at § 416.920(e). Fourth, utilizing the

functional capacity assessment, an individual who, though suffering from an “impairment,” is

capable of performing work that he or she has done in the past is deemed not to be disabled. Id. at

§ 416.920(f). Fifth, if the individual is unable to do past relevant work, an analysis will be

conducted as to whether, considering the individual’s functional capacity and vocational factors such

as age, education, and work experience, the individual is capable of performing other work that

exists in significant numbers in the national economy. Id. at § 416.920(g); see also § 416.960(c).

If the individual has the residual functional capacity to perform other work, the individual will be

deemed not disabled; if the individual does not have such capacity to perform other work, the

individual will be deemed disabled. Id.

                                          III. ANALYSIS

               “In a disability proceeding, the ALJ ‘has the power and the duty to investigate fully

all matters in issue, and to develop the comprehensive record required for a fair determination of

disability.’” Simms v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (quoting Diabo v. Sec'y of

HEW, 627 F.2d 278, 281 (D.C. Cir. 1980)). Plaintiff argues that the ALJ abandoned his duty to

develop the record, which resulted in a decision that was not supported by substantial evidence.

More specifically, Plaintiff argues that the ALJ (1) failed “to obtain pertinent medical evidence;” (2)


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failed to “inquire into the Plaintiff’s mental illness, despite the fact that the Plaintiff has alleged

depression and mental stress in his Disability Report, and reported that he had been receiving

psychiatric treatment;” and (3) failed to “adequately pursue or inquire into the Plaintiff’s abilities to

sit, stand, walk, lift, carry, or bend, or to perform any of the exertional requirements of work.” Mot.

for J. of Reversal [Dkt. # 15] at 5–6 (citations omitted).

                The record does not support Plaintiff’s assertions. The ALJ properly went through

the five-step analysis, determining (1) that Plaintiff was not gainfully employed; (2) that he does

have a severe impairment; (3) that the impairment is not listed or equal to a listed impairment within

the Commissioner’s regulations; (4) that he cannot perform past relevant work; and (5) that, despite

not being able to do past relevant work, he could perform other work that exists in significant

numbers in the national economy. In doing so, the ALJ obtained and reviewed all pertinent medical

records, inquired into Plaintiff’s mental health, and considered Plaintiff’s exertional limitations.

                First, the ALJ did not fail “to obtain pertinent medical evidence.” Mot. for J. of

Reversal [Dkt. # 15] at 5. The ALJ considered an abundance of pertinent medical records, including

operative reports on Plaintiff’s surgery from Providence Hospital, Admin. Record [Dkt. # 12], Ex.

1F; medical reports for his physical therapy, id., Ex. 2F; a request for medical advice from Dr. Karen

Sarpolis, M.D., id., Ex. 3F; medical evidence from Dr. Easton L. Manderson, M.D., Admin. Record

[Dkt. # 13], Ex. 4F; a consultative examination report by Dr. Rafael A. Lopez, M.D., id., Ex. 5F; a

request for medical advice from Internist Lisette Hanna, id., Ex. 6F; and a physical residual

functional capacity assessment from Dr. Jacqueline McMorris, M.D., id., Ex. 7F. Having listed all

of these records to Plaintiff as records which he did consider, the following examination occurred:

                ALJ:    Now, are there other documents there that you have that I don’t have?


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                 Pl.:    No. I would just like to draw attention to Exhibit 1F of --
                 ALJ:    Okay.
                 Pl.:    -- of the medical record.
                 ALJ:    Okay. But as far as you know, I have all the Exhibits?
                 Pl.:    Yes.
                 ALJ:    Okay, that’s fine.

Admin. Record [Dkt. # 6], Transcript of Oral Hearing (“Tr.”) at 15.1 Later, the ALJ asked Plaintiff:

“Is there another -- any other documents that you’d like to have me revisit?,” to which Plaintiff

responded “No.” Id. at 19. When the ALJ inquired into other pertinent medical evidence, he was

told by Plaintiff that no other medical evidence existed. Moreover, given the breadth of the medical

evidence dealing with Plaintiff’s specific impairments, the ALJ could not be on notice that other

records might be available, without Plaintiff’s assistance in identifying any additional pertinent

medical evidence that might exist. Further, Plaintiff does not indicate, or attach to his pleading,

additional medical evidence that should have been obtained. The comprehensive nature of the

medical record, along with Plaintiff’s assurance that no other medical evidence existed, suffice to

show the record was developed sufficiently and that the ALJ did not fail to obtain medical evidence.

                 Second, the ALJ did not fail to “inquire into the Plaintiff’s mental illness, despite the

fact that the Plaintiff has alleged depression and mental stress in his Disability Report, and reported

that he had been receiving psychiatric treatment.” Mot. for J. of Reversal at 5. The ALJ specifically

stated “[t]here’s no mental impairment involved, and he’s not asserting mental impairment,” and

then questioned Plaintiff “[t]hat’s my understanding, right?” Tr. at 23. Plaintiff responded “Yes,

in the duration of time.” Id. Plaintiff therefore acknowledged he was not claiming any mental

impairment. Again, Plaintiff’s own assurances that mental impairment was not an issue in this case



       1
           The transcript numbers correspond to the number at the top of each transcript page.

                                                   -6-
suffice to show the record was developed sufficiently in this regard and that the ALJ did inquire into

whether Plaintiff was affected by mental illness.

                  Third, the ALJ did not fail to “adequately pursue or inquire into the Plaintiff’s

abilities to sit, stand, walk, lift, carry, or bend, or to perform any of the exertional requirements of

work.” Mot. for J. of Reversal at 5. While Plaintiff may not like the ALJ’s conclusion concerning

Plaintiff’s exertional limitations and abilities, he nevertheless set forth substantial evidence

supporting his conclusion, including his evaluation of Plaintiff’s abilities to sit, stand, walk, lift,

carry, bend, or perform any other exertional requirements of work. In doing so, the ALJ considered

Plaintiff’s self-reporting of his limitations and abilities, as well as the medical evidence. Admin.

Record [Dkt. #6] at 11–13 (“ALJ Hearing Decision”).2 Specifically, the ALJ considered (1)

Plaintiff’s reported activities of daily living, including preparing meals, household chores, driving,

shopping, and many more activities, id. at 11–12; (2) various operational and physical therapy

records, id. at 12; (3) the medical reports of numerous doctors, id. at 12–13; (4) the residual

functional capacity analysis, id. at 13–14; and (5) Plaintiff’s age, education, and work experience,

id. at 13–14. The record is replete with evidence of Plaintiff’s exertional capabilities.

                  Though replete, such evidence was not always consistent.            The ALJ noted

discrepancies between the medical evidence and Plaintiff’s self-reported physical assessment,

thereby requiring the ALJ to decide which evidence to credit, and with what weight, for his

determination as to Plaintiff’s exertional capability. The ALJ found:

                  that the claimant’s medically determinable impairment could
                  reasonably be expected to cause the alleged symptoms; however the


         2
             The ALJ Hearing Decision pages correspond to the number at the bottom right of the
pages.

                                                  -7-
                 claimant’s statements concerning the intensity, persistence and
                 limiting effects of these symptoms are not credible to the extent they
                 are inconsistent with the above residual functional capacity
                 assessment.

Id. at 11. The ALJ did what every judge does when facing conflicting evidence; he made a

credibility determination based upon the evidence presented to him.

                 Furthermore, that credibility determination about Plaintiff’s abilities to “sit, stand,

walk, lift, carry, or bend, or to perform any of the exertional requirements of work” was supported

by substantial evidence. The ALJ placed considerable weight on (1) the medical report of Dr. Lopez,

who noted that Plaintiff exhibited almost a full range of motion, and who found no evidence of

atrophy, swelling, effusion, deformity, tenderness, spasm, heat, redness, thickening, instability, or

tendinopathy; and (2) the residual functional capacity analysis of Dr. McMorris, who determined that

Plaintiff has the ability to work, with some limitations. Id. at 12–13. The ALJ placed great weight

on these records because both doctors’ assessments were consistent with the other evidence

presented. Id.

                 While the ALJ did not pursue additional evidence, it is not clear what additional

evidence could be presented, and how such evidence would differ from that already presented. At

the hearing, Plaintiff stated that there was no additional medical evidence, Tr. at 15, 19, and

Plaintiff’s complaints as to his exertional limitations were already documented within the record.

See generally Admin. Record [Dkt. # 11]. The ALJ did pursue and inquire into the evidence already

in the record, as shown by his analysis and incorporation of Plaintiff’s exertional capabilities into

his determination whether Plaintiff could manage to work in a less physical position. When

questioning the vocational expert as to whether employment might be available for Plaintiff, the ALJ



                                                   -8-
set forth a hypothetical for the expert to consider that described Plaintiff’s limitations:

                [cannot] climb ladders, ropes, or scaffolds . . . be exposed to
                hazardous heights, or hazardous machinery, or exposure to extreme
                temperature changes . . . [but] could occasionally climb stairs and
                ramps, and balance, and stoop, and crouch; no kneeling or crawling
                . . . [with moderate pain level] . . . no lower-extremity use of
                pull/push controls, no prolonged walking and standing . . . .”

Tr. at 23–24. Assuming those exertional limitations and abilities, the ALJ extended the hypothetical

to include various levels of “sit and stand” limitations, in which the most restrictive example given,

without being disabled, was “sit and stand at the discretion of the employee.” Even under that most

restrictive level, while considering the other limitations, the vocational expert found that jobs were

available in the national economy that would accommodate Plaintiff’s impairment. The ALJ

incorporated Plaintiff’s exertional limitations within his analysis, and even assumed them to be at

a most restrictive level, and nonetheless found that Plaintiff was not disabled because he could be

employed in an unskilled, sedentary job that exists in significant numbers in the national economy.3

ALJ Hearing Decision at 14.

                The ALJ performed a thorough analysis of Plaintiff’s functional capabilities,

considering Plaintiff’s own testimony and medical records, the residual functional assessment, and

a host of medical evidence, weighing each against each other, assigning credit to some, and not to

others. The record was sufficiently developed from this evidence to determine Plaintiff’s exertional

capabilities, and thus the ALJ did not fail to adequately pursue or inquire into the Plaintiff’s abilities

to perform any of the exertional requirements for work.


        3
         Further proof that the ALJ pursued and inquired into Plaintiff’s limitations was the
ALJ’s decision at step four, where he determined that Plaintiff could not be employed doing past
relevant work, as it was too strenuous for Plaintiff. See ALJ Hearing Decision at 13. This
necessarily requires recognition of Plaintiff’s exertional limitations.

                                                   -9-
                                      IV. CONCLUSION

               The ALJ developed a suitable record for a determination of whether Plaintiff was

disabled and made his decision based upon sufficient evidence. For the foregoing reasons, the Court

will grant Defendant’s Motion for Judgment of Affirmance [Dkt. # 16], and deny Plaintiff’s Motion

for Judgment of Reversal and its alternative motion to remand pursuant to 42 U.S.C. § 405(g) [Dkt.

# 15]. The decision of the ALJ will be affirmed. A memorializing Order accompanies this

Memorandum Opinion.


Date: December 1, 2010                                         /s/
                                                 ROSEMARY M. COLLYER
                                                 United States District Judge




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