                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                           )
PATRICK NICHOLSON,                         )
                                           )
                  Plaintiff,               )
                                           )
                  v.                       ) Civil Action No. 10-2010 (RWR) (DAR)
                                           )
SOCIAL SECURITY ADMINISTRATION,            )
                                           )
                  Defendant.               )
_________________________________________ )


                                  MEMORANDUM OPINION

       This matter brought under the Social Security Act, 42 U.S.C. § 405(g), challenging the

denial of a claim for supplemental security income, was referred to Magistrate Judge Deborah A.

Robinson for a report and recommendation (“R&R”). In the R&R issued on March 14, 2012

[Doc. # 20], Magistrate Judge Robinson recommends granting in part plaintiff’s motion for

judgment of reversal, denying defendant’s motion for judgment of affirmance, and remanding

this action to the Social Security Administration ("SSA") for further proceedings. Defendant has

filed objections to the R&R [Doc. # 22] and plaintiff, by counsel, has responded [Doc. # 23].

Because the weight the Administrative Law Judge (“ALJ”) accorded the medical opinion of

plaintiff’s treating physician was contrary to Social Security regulations, the R&R is hereby

adopted and this case will be remanded for further proceedings. Consequently, plaintiff’s motion

for judgment of reversal will be granted and defendant’s motion for judgment of affirmance will

be denied




                                                1
                                    STANDARD OF REVIEW

       “The Commissioner's ultimate determination [on an application for benefits] will not be

disturbed if it is based on substantial evidence in the record and correctly applies the relevant

legal standards.” Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (citations omitted); see

Pinkney v. Astrue, 675 F. Supp. 2d 9, 21 (D.D.C. 2009) (“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.”) (citing Richardson v. Perales,

402 U.S. 389, 390 (1971)). A district court's review of the SSA's findings of fact is limited to

whether those findings 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[,]’ ” Butler, 353 F.3d at 999

(quoting Richardson, 402 U.S. at 401), and is “more than a mere scintilla of evidence,” but

“something less than a preponderance of the evidence.” Ware v. Barnhart, 357 F. Supp. 2d 134,

138 (D.D.C. 2004) (internal quotation marks omitted). In making this determination, “the court

must carefully scrutinize the entire record, but may not reweigh the evidence and replace the

[SSA's] judgment regarding the weight of the evidence with its own.” Brown v. Barnhart, 370 F.

Supp. 2d 286, 288 (D.D.C. 2005) (internal quotation marks omitted) (quoting Jackson v.

Barnhart, 271 F. Supp. 2d 30, 34 (D.D.C. 2002)). The inquiry examines whether the ALJ “ ‘has

analyzed all evidence and has sufficiently explained the weight he has given to obviously

probative exhibits [.]’ ” Crawford v. Barnhart, 556 F. Supp. 2d 49, 52 (D.D.C. 2008) (quoting

Butler, 353 F.3d at 999).




                                                  2
                                            BACKGROUND

       Magistrate Judge Robinson’s background and medical evidence statements are adopted,

see R&R at 2-6, and only facts necessary to this decision will be repeated. Notably, at the time

plaintiff applied for benefits on October 12, 2005, he was 40 years old and reportedly had been

unable to work since April 15, 2005, due to coronary heart disease, diabetes mellitus and

hypertension. Plaintiff completed the 11th grade of school and had completed no additional

training. Plaintiff’s application was denied initially on October 30, 2005, and upon

reconsideration on March 14, 2008. In a decision rendered on July 12, 2010, following a hearing

on May 24, 2010, the ALJ found that plaintiff was not disabled because, among other factors, he

had the residual functional capacity (“RFC”) to perform sedentary work. Based on the testimony

of a vocational expert, the ALJ, recognizing that plaintiff had no past relevant work experience,

identified jobs in the national economy that plaintiff could perform.

                                          DISCUSSION

       In order to determine whether a claimant is disabled, an ALJ is required to perform a

five-step evaluation. 20 C.F.R. §§ 404.1520, 416.920; Butler, 353 F.3d at 997. The claimant

carries the burden of proof for the first four steps. At step one, the ALJ determines whether the

claimant has been employed in substantial gainful work since the onset of his impairment. If the

claimant has performed substantial gainful work, his claim will be denied. If the claimant has

not performed substantial gainful work, the ALJ must determine at step two whether the

claimant's impairments are medically severe. If the impairments are not severe, the claimant is

not disabled. If the impairments are severe, the ALJ at step three must compare the claimant's

impairments with those in the listing of impairments promulgated by the SSA. If the claimant

suffers from an impairment that meets the duration requirement and meets or equals an



                                                 3
impairment listed in Appendix 1 of the regulations, the claimant is deemed disabled and the

inquiry ends. If no match exists, the ALJ must continue the evaluation. At step four, the ALJ

must determine if the claimant retains any residual functional capacity, namely, the ability to do

past relevant work. Finally, if the claimant is unable to perform his past work, the burden shifts

to the Commissioner to demonstrate that the claimant is able to perform other work based on a

consideration of his RFC, age, education and past work experiences. Dunham v. Astrue, 603 F.

Supp. 2d 13, 17-18 (D.D.C. 2009). The ALJ addressed each of the five steps and concluded that

plaintiff was able to perform some work and had not been disabled since the date of his

application on October 12, 2005, which the ALJ considered as the onset date of the claimed

disability. See generally Administrative Record (“AR”) [Doc. # 6] at 9-21 (Hr’g. Decision).

       Magistrate Judge Robinson found that the ALJ’s findings were not supported by

substantial evidence in the record, that his assessment of plaintiff’s RFC was not in accordance

with applicable law, and that he deprived plaintiff of his right to counsel and a fair administrative

hearing. Defendant objects to each of these findings and argues, inter alia, that Magistrate Judge

Robinson did not consider the “adequate and substantial evidence” that was “already” before the

ALJ at the time of the decision. Def.’s Objections to the Mag. Judge’s R&R (“Def.’s

Objections”) at 1.

       “The magistrate judge’s [R&R] is reviewed de novo.” Bode & Grenier, L.L.P. v. Knight,

821 F. Supp. 2d 57, 60 (D.D.C. 2011) (citations and internal quotation marks omitted).

Magistrate Judge Robinson determined that the ALJ’s decision that plaintiff could perform

sedentary work “failed to build a sufficient ‘logical bridge’ from the evidence – the medical

opinions presented before him – to his specific conclusion that [p]laintiff has the RFC to perform

sedentary work.” R&R at 15 (emphasis omitted). She also faulted the ALJ for failing to provide



                                                  4
a “narrative discussion” about the “varying degrees of weight” accorded the medical opinions of

plaintiff’s cardiologist, Dr. Thomas Pinder, who completed a report on November 14, 2007, Dr.

Morton A. Kavalier, a cardiologist at Cardiology and Internal Medicine, P.A., who examined

plaintiff on February 14, 2008, and provided a report, and Dr. Currie Ball, a state agency

physician who completed an RFC assessment of plaintiff on March 11, 2008. Id. at 16; see also

id. at 5.

         Indeed, it is unclear what evidence the ALJ relied upon to conclude that plaintiff could

perform sedentary work after having rejected the medical opinions of the non-treating physicians

that plaintiff could perform “activities at the [more stringent] light exertional level.” Hr’g

Decision at 5, 8; see R&R at 14-15; 20 C.F.R. § 416.967 (listing exertional levels of work from

sedentary to very heavy). Resolving that uncertainty is not essential because the “controlling

weight” the ALJ accorded Dr. Pinder’s medical opinion alone warrants remanding the case.

        Under Social Security regulations, a treating physician’s opinion is “entitled to

‘controlling weight’ if [it is] not inconsistent with other substantial record evidence and [is] well-

supported by medically acceptable clinical and laboratory diagnostic techniques.” Butler, 353

F.3d at 1003 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)); see SSR 96-2p, Giving

Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188 (SSA July 2, 1996)

(“A case cannot be decided in reliance on a medical opinion without some reasonable support for

the opinion.”). To be given controlling weight, the medical opinion must also address “the

nature and severity of [the applicant’s] impairment(s).” 28 C.F.R. § 416.927(c)(2). Furthermore,

prior to adopting a treating physician’s opinion, the ALJ must evaluate the opinion by

considering the following six factors: “(1) length of the treating relationship and frequency of

examination; (2) nature and extent of the treating relationship; (3) supportability; (4) consistency;



                                                  5
(5) specialization; and (6) other factors that tend to support or contradict the medical opinion.”

Butler, 353 F.3d at 1003 n.7 (citing 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6)).

       The ALJ stated that consistent with 20 C.F.R. § 416.927(c), he was according

“controlling weight” to Dr. Pinder’s opinion “that there was no ischemic heart disease, angina, or

recurrent arrhythmias and that the claimant’s heart failure had improved” with medication since

plaintiff’s hospitalization in 2005. Hr’g Decision at 5, 7. The ALJ found Dr. Pinder’s opinion

“supported by treatment notes from Unity Health Care and the other evidence of record.” Id. at

5. But there is no indication that Dr. Pinder treated plaintiff at Unity Health Care and, as

Magistrate Judge Robinson found, Dr. Pinder’s report includes no discussion about plaintiff’s

functional restrictions and contains no medical records. R&R at 17. Although the ALJ stated

that he “considered opinion evidence” in accordance with the requirements of SSR 96-2 and

other rules, Hr’g Decision at 8, he did not discuss any of the foregoing evaluative factors.

       Since the only record evidence of Dr. Pinder’s opinion is an unsupported three-page

report consisting of a checklist and cryptic notations [Doc. # 6-3 at 33-39], Magistrate Judge

Robinson correctly determined that the ALJ’s finding on plaintiff’s RFC was neither supported

by substantial evidence in the record nor in accordance with applicable law. Hence, the R&R

will be adopted and this case will be remanded to the agency for further proceedings. A separate

Order accompanies this Memorandum Opinion.



                                              _________/s/_____________
                                              RICHARD W. ROBERTS
DATE: September 27, 2012                      United States District Judge




                                                 6
