                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
WILLIE MARIE BROYLES,          )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 04-2104 (RWR)
                               )
MICHAEL ASTRUE,                )
                               )
          Defendant.           )
_____________________________ )

                            MEMORANDUM OPINION

     Plaintiff Willie Marie Broyles appeals the decision the

Commissioner of the Social Security Administration (“SSA”),1

denying her request for Social Security disability insurance

(“SSDI”) benefits for the period between January 2001 and June 4,

2002.       Broyles moves for reversal, claiming that the

administrative law judge (“ALJ”), whose decision became the

Commissioner’s, erred by deciding that Broyles was not disabled.

The Commissioner opposes and moves to affirm the final decision.

Because the evidence in the record supports the ALJ’s

determination, the plaintiff’s motion will be denied and the

Commissioner’s motion will be granted.

                                BACKGROUND

     Broyles is 58 and lives in Washington, D.C.       Pl.’s Mem. in

Supp. of Mot. for Reversal (“Pl.’s Mem.”) at 3.       She has a



        1
      Secretary Michael Astrue is substituted as the defendant
under Federal Rule of Civil Procedure 29(d).
                                 -2-

college education, and worked in the past as a secretary and an

administrative assistant.   However, she experienced a period of

only intermittent work up until June 4, 2002, when she returned

to work full time.   Id.; Administrative R. (“R.”) at 249-51.

     In 2000, Dr. David Ralphing conducted a psychiatric

evaluation of Broyles and opined that Broyles appeared to suffer

from moderately severe recurrent major depression.   R. at 271.

In addition, Dr. Eugene Miknowski concluded that Broyles

demonstrated a normal range of motion in all joints; that despite

a 1997 diagnosis of fibromyalgia, her physical condition could

significantly improve with exercise and aggressive treatment;

that Broyles was capable of lifting, carrying, and pushing at

least ten to 15 pounds; and that she could sit without

restriction.   Id. at 264-66.   In March of 2001, Broyles’ treating

psychiatrist, Dr. Victoria Tankeh, filled out a mental impairment

questionnaire sheet based upon her perception of Broyles.

Dr. Tankeh noted that Broyles had experienced poor memory,

disturbed appetite, sleep, and mood, social withdrawal, and

decreased energy, and reported that she experienced panic

attacks, anhedonia, feelings of guilt and worthlessness,

difficulty thinking and concentrating, and general persistent

anxiety.   The doctor opined that Broyles would have difficulty

working a full-time job on a sustained basis due to her

impairments.   Id. at 272-76.
                                  -3-

       In July of 2001, Broyles applied to the SSA for disability

insurance benefits, alleging that since January 13, 2000, she

suffered from emotional illness, depression, learning disability,

and fibromyalgia.    Compl. ¶ 5; Pl.’s Mem. at 2-3.   In December of

2001, a Disability Determination Services (“DDS”) physician

completed a Physical Residual Functional Capacity Assessment of

Broyles, and concluded that Broyles was capable of lifting 20

pounds occasionally and 10 frequently; standing and/or walking

about six hours in an eight hour workday; sitting about six hours

in an eight hour workday; and pushing and/or pulling to an

unlimited degree.    R. at 183-90.   A DDS psychologist reviewed

Broyles’ records and completed a Psychiatric Review Technique

form.    Id. at 195-208.   The DDS examiner addressed whether

Broyles’ condition met the requirements for the listings at

sections 12.02, 12.04, or 12.08 of the Social Security Listing of

Impairments, 20 C.F.R. § 404, Subpart P, App. 1, which address

organic mental, affective, and personality disorders.     Id. at

195.    The DDS examiner found that under the “A” criteria of those

listings, while Broyles had a medically determinable impairment,

that impairment did not precisely satisfy the appropriate

diagnostic criteria.    Id. at 196, 198, 202.   Moreover, the

examiner found that under the “B” criteria for these listings,

Broyles had only mild restrictions of activities of daily living,

moderate difficulties in maintaining social functioning, mild
                                -4-

difficulties in maintaining concentration, persistence, or pace,

and experienced only one or two episodes of decompensation.    Id.

at 205.

     The DDS psychologist also completed a Mental Residual

Functional Capacity Assessment of Broyles.   R. at 191-193.   The

examiner found that Broyles was moderately limited in several

capacities: her ability to complete a normal workday and workweek

without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and

length of rest periods; her ability to accept instructions and

respond appropriately to criticism from supervisors; her ability

to get along with coworkers or peers without distracting them or

exhibiting behavioral extremes; and her ability to set realistic

goals or make plans independently of others.   Id. at 192.    Based

on these findings, the DDS examiner opined that Broyles was still

capable of engaging in “routine, and some types of complex, work

at least.”   Id. at 193.

     In July of 2002, Dr. James Ryan conducted a vocational

evaluation of Broyles, noting that Broyles obtained a bachelors

degree in 1977, with majors in psychology and social work.

R. 209.   Dr. Ryan noted that Broyles attended but did not

complete graduate school.   Based on his review of Broyles health

and educational background, Dr. Ryan opined that Broyles’

physical limitations “would present no major barrier to
                                    -5-

employment,” and that she could perform jobs at the semi-skilled

and skilled level.   Id. at 211.      However, Dr. Ryan opined that

despite that evidence, Broyles’ emotional status would preclude

full-time employment.     Id.

     In February 2003, an ALJ held an administrative hearing

regarding Broyles’ claim.       Vocational expert Kathleen Sampeck

testified that an individual of Broyles’ age, education, and work

experience who was limited to a low-stress environment involving

minimal interpersonal contacts with supervisors, coworkers, or

the public, and performing simple, rote, repetitive job tasks, or

detailed but not complex job tasks, would be capable of

performing the jobs of non-postal mail clerk, office helper, and

addresser.   R. at 260.    Sampeck stated that in the Washington,

D.C. area, there were 800 mail clerk positions, 1,800 office

helper positions, and 400 addresser positions, and that

nationally, there were 45,000 mail clerk positions, 67,000 office

helper positions, and 42,000 addresser positions.          Id. at 261.

Sampeck testified that her opinion was consistent with the

Dictionary of Occupational Titles.        Id.

     The ALJ issued a decision on June 7, 2003, denying Broyles’

claim for SSDI benefits.     R. at 14-23.       “In order to determine

whether a claimant is disabled, an ALJ is required to perform a

five-step evaluation.”     Dunham v. Astrue, 603 F. Supp. 2d 13, 17
                               -6-

(D.D.C. 2009) (citing 20 C.F.R. §§ 404.1520, 416.920, and Butler

v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004)).

     At step one, the ALJ determines whether the claimant
     has been employed in substantial gainful work since the
     onset of [her] impairment. If the claimant has
     performed substantial gainful work, [her] 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 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, [at step five] if the claimant
     is unable to perform [her] past work, the burden shifts
     to the Commissioner to demonstrate that the claimant is
     able to perform other work based on a consideration of
     [her] residual functional capacity, age, education and
     past work experiences.

Dunham, 603 F. Supp. 2d at 13 (emphasis added).

     The ALJ first noted that the medical evidence indicated that

Broyles was diagnosed with and treated for “disorders of the

back, affective disorder, anxiety related disorder, a learning

disability and fibromyalgia, which prevent[ed] her from engaging

in some basic work related activities.”   R. at 15.   The ALJ

determined that Broyles’ condition did not meet the definition of

an Affect Disorder:

     [T]he evidence does not demonstrate that [Broyles’]
     impairments, either singly or in combination, are of a
                                 -7-

     severity to meet or equal any of the impairments set
     forth in the Listing of impairments at Appendix 1 to
     Subpart P of Regulations No. 4 (20 C.F.R.
     § 404.1520(d)) as required by the third step.
     Specific consideration was given to Listings 1.04,
     12.04, 12.05, and 12.06 A, B, and C. The medical
     evidence does not satisfy the requisite level of
     severity of those or any other Listing. . . .
     [Broyles’] musculoskeletal impairment does not result
     in motor loss with accompanying atrophy, positive
     straight leg raising, or sensory or reflex loss, or
     inability to ambulate effectively. Her mental
     impairments, singly or in combination, do not result in
     marked limitation in at least 2 of 4 elements of
     functioning, activities of daily living, socialization,
     concentration, attention, persistence or pace, or
     episodes of deterioration for extended duration; nor do
     they result in [Broyles] being unable to function
     outside her home. No treating, consulting, examining,
     or reviewing medical source has opined that the
     claimant’s impairments, singly or in combination, were
     equal to any listed impairment.

R. at 16.   The ALJ noted that Dr. Tankeh concluded that Broyles

“had marked slight restrictions in her activities of daily

living, marked difficulties in maintaining social functioning,

often had difficulties in maintaining concentration, persistence

and pace[.]”   Id. at 19.   However, the ALJ gave “little weight”

to the opinions of Dr. Tankeh regarding Broyles ability to work

because Dr. Tankeh’s statements that Broyles was “disabled” or

“unable to work” were not medical opinions and instead were

findings to be made by the ALJ, and also because her opinions

were “neither supported by nor consistent with the preponderance

of the evidence of record.”   Id. at 20.   Thus, the ALJ found that

the totality of the evidence showed that Broyles possessed the

residual functional capacity to perform the demands of light work
                                 -8-

in a low stress work environment involving minimal interpersonal

interaction with coworkers or the public, performing simple,

rote, repetitive job tasks.    Id.   According to the ALJ,

     [Broyles’] affective and anxiety disorders and learning
     disability have resulted in a mildly decreased ability
     to perform activities of daily living; a moderately
     decreased ability to maintain social functioning; a
     moderately decreased ability to sustain attention
     concentration, persistence and pace; and a history [of]
     1 or 2 episodes of decompensation for extended
     duration. As a result, she is limited to a low stress
     work environment involving minimal interpersonal
     interaction with supervisors, coworkers and/or the
     public; performing simply rote repetitive tasks.

R. at 19.    The ALJ further determined that Broyles’ assertions of

incapacity lacked credibility.    Id. at 20.   He concluded, based

upon vocational expert testimony at step five of the sequential

evaluation process, that Broyles was capable of performing the

occupations of non-postal mail clerk, office helper, and

addresser.   Id. at 11-23.   The Appeals Council denied Broyles’

request for review, rendering the ALJ’s decision the final

decision of the Commissioner.    Broyles timely filed this action

for judicial review under 42 U.S.C. § 405(g).

     Broyles has moved for reversal, arguing that the ALJ failed

to evaluate properly Broyles’ impairments at step 3 of the

sequential evaluation process, that the ALJ improperly ignored

the opinion of Broyles’ treating physician and erroneously relied

upon the testimony of the vocational expert, and that the ALJ

erroneously assessed Broyles’ residual functional capacity.    The
                                -9-

Commissioner opposes Broyles’ motion, and has moved for an order

affirming the ALJ’s decision.

                         STANDARD OF REVIEW

     A district court has the power “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).   When a court reviews an SSA decision, “[t]he findings

of the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive.”    Id.

Accordingly, the “Commissioner’s ultimate determination will not

be disturbed if it is based on substantial evidence in the record

and correctly applies the relevant legal standards.”    Butler, 353

F.3d at 999.   In other words, “[a] district court’s review of the

SSA’s findings of fact is limited to whether those findings are

supported by substantial evidence.”   Dunham, 603 F. Supp. 2d at

17 (citing 42 U.S.C. § 405(g), and 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[,]’” id. (quoting Butler, 353 F.3d at 999 (internal

quotation omitted)), and “is ‘more than a mere scintilla of

evidence,’ but ‘something less than a preponderance of the

evidence[,]’” id. (quoting Ware v. Barnhart, 357 F. Supp. 2d 134,

138 (D.D.C. 2004)).   When determining whether the SSA’s findings
                                -10-

were supported by substantial evidence, the court “may not re-

weigh the evidence and replace the [SSA’s] judgment regarding the

weight of the evidence with its own.”     Nicholson v. Social

Security Admin., Civil Action No. 10-2010 (RWR), 2012 WL 4466853,

at *1 (D.D.C. September 27, 2012) (quoting Brown v. Barnhart, 370

F. Supp. 2d 286, 288 (D.D.C. 2005) (internal quotation marks

omitted)).   An ALJ’s decision should be upheld where 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).

                             DISCUSSION

     “To qualify for disability benefits under Title XVI

(Supplemental Security Income) of the Social Security Act, . . .

a claimant must establish that [she] is disabled.”     Jones v.

Astrue, 647 F.3d 350, 352 (D.C. Cir. 2011) (citing 42 U.S.C.

§ 1381a).    For the first four steps of the sequential evaluation

process, the claimant carries the burden of proof.     The listing

of impairments “describes for each of the major body systems

impairments that [the SSA] consider[s] to be severe enough to

prevent an individual from doing any gainful activity, regardless

of his or her age, education, or work experience.”     20 C.F.R.

§ 404.1525(a).
                               -11-

     Broyles argues that the ALJ’s determination that Broyles’

condition did not constitute one of the listed impairments was

flawed.   According to Broyles, her answers to the Mental

Impairment Questionnaire and Dr. Tankeh’s notes on the

questionnaire were sufficient to satisfy the criteria of the

impairment listed at section 12.04 A, Affective Disorder, and the

ALJ failed to evaluate the findings of Dr. Tankeh.   Pl.’s Mem.

at 6.   Broyles also complains that the ALJ failed to give Dr.

Tankeh’s opinion sufficient weight.   Id. at 11.   Section 12.04 A

states that an Affective Disorder is “characterized by a

disturbance of mood, accompanied by a full or partial manic or

depressive syndrome.”   20 C.F.R. Part 404 Subpart P, Appendix 1,

Section 12.04.   That section provides, in relevant part:

     The required level of severity for these disorders is
     met when the requirements in both A and B are
     satisfied, or when the requirements in C are satisfied.

     A. Medically documented persistence, either continuous
     or intermittent, of one of the following:
     1. Depressive syndrome characterized by at least four
     of the following:
     a. Anhedonia or pervasive loss of interest in almost
     all activities; or
     b. Appetite disturbance with change in weight; or
     c. Sleep disturbance; or
     d. Psychomotor agitation or retardation; or
     e. Decreased energy; or
     f. Feelings of guilt or worthlessness; or
     g. Difficulty concentrating or thinking; or
     h. Thoughts of suicide; or
     i. Hallucinations, delusions, or paranoid thinking; or

     2. Manic syndrome characterized by at least three of
     the following:
     a. Hyperactivity; or
                                -12-

       b. Pressure of speech; or
       c. Flight of ideas; or
       d. Inflated self-esteem; or
       e. Decreased need for sleep; or
       f. Easy distractibility; or
       g. Involvement in activities that have a high
       probability of painful consequences which are not
       recognized; or
       h. Hallucinations, delusions or paranoid thinking; or

       3. Bipolar syndrome with a history of episodic periods
       manifested by the full symptomatic picture of both
       manic and depressive syndromes (and currently
       characterized by either or both syndromes); AND

       B. Resulting in at least two of the following:
       1. Marked restriction of activities of daily living; or
       2. Marked difficulties in maintaining social
       functioning; or
       3. Marked difficulties in maintaining concentration,
       persistence, or pace; or
       4. Repeated episodes of decompensation, each of
       extended duration.

       OR

       C. Medically documented history of a chronic affective
       disorder of at least 2 years’ duration that has caused
       more than a minimal limitation of ability to do basic
       work activities, with symptoms or signs currently
       attenuated by medication or psychosocial support, and
       one of the following:
       1. Repeated episodes of decompensation, each of
       extended duration; or
       2. A residual disease process that has resulted in such
       marginal adjustment that even a minimal increase in
       mental demands or change in the environment would be
       predicted to cause the individual to decompensate; or
       3. Current history of 1 or more years’ inability to
       function outside a highly supportive living
       arrangement, with an indication of continued need for
       such an arrangement.

20 C.F.R. Part 404 Subpart P, Appendix 1, Section 12.04 (A), (B),

(C).
                               -13-

     Broyles’ argument misses the mark.     While Dr. Tankeh did

opine that Broyles met the requirements of listing 12.04, the ALJ

addressed and evaluated Tankeh’s opinions and determined that

they were conclusory and inconsistent with the other medical

evidence in the record.   An “ALJ need not accept the opinion of

any physician, including a treating physician, if that opinion is

brief, conclusory, and inadequately supported by clinical

findings.”   Pinkney v. Astrue, 675 F. Supp. 2d 9, 18 (D.D.C.

2009) (internal quotation omitted).     Because the ALJ specifically

addressed Tankeh’s conclusory findings and explained why they

contradicted the medical evidence in the record, the ALJ did not

fail to meet his duty to explain.     See Grant v. Astrue, 857 F.

Supp. 2d 146, 154 (D.D.C. 2012) (“That the ALJ’s decision noted

the contrary evidence in the record satisfies the requirement to

explain the rejection of the treating physician's opinion.”).

     Broyles next argues that, at step five in the evaluation

process, the ALJ improperly relied upon the testimony of a

vocational expert (“VE”).   Pl.’s Mem. at 12-13.    However, “Social

Security regulations provide that, in determining whether there

are jobs which exist in significant numbers in the national

economy that a claimant can perform based on [her] residual

functional capacity, an ALJ may consider the testimony of a

vocational expert.”   Turner v. Astrue, 710 F. Supp. 2d 95, 109

(D.D.C. 2010) (citing 20 C.F.R. §§ 404.1566(e), 416.966(e); and
                               -14-

Brown v. Barnhart, 408 F. Supp. 2d 28, 33 n.5 (D.D.C. 2006) (“An

administrative law judge may base his decision on the testimony

of a vocational expert.”))   “Testimony of a VE constitutes

substantial evidence for purposes of judicial review where [her]

opinion is based on consideration of all the evidence in the

record and is in response to proper hypothetical questions which

fairly set out all of claimant's impairments.”    Turner, 710 F.

Supp. 2d at 109 (internal quotation omitted).    “A vocational

expert’s testimony will be regarded as consistent with the DOT

[Dictionary of Occupational Titles] if there are one or more jobs

that both the VE and DOT agree can be performed by a claimant.”

Id.

      Broyles argues that she cannot perform the jobs listed by

Sampek (mail clerk, office helper, and addresser) and that they

exceed her mental residual functioning capacity because, in the

DOT, those three jobs require a reasoning level of 2 or 3.

Broyles asserts that the ALJ’s determination of Broyles’ health

inherently determined that she could not perform jobs requiring

reasoning level 2 or 3 because that reasoning level requires the

ability to carry out detailed written or oral instructions.

Pl.’s Mem. at 14.   However, all three positions carry a specific

vocational preparation scoring of 2, indicating that they are

considered unskilled positions and that it would take less than
                                 -15-

30 days to learn them.   Such positions would be consistent with

the ALJ’s findings regarding Broyles’ health.

     Broyles finally argues that the ALJ erroneously assessed

Broyles’ residual functional capacity because he failed to

incorporate a “function-by-function” assessment of Broyles’

ability to perform the non-exertional requirements of light work

by failing to set forth a narrative discussion describing how the

evidence supported each conclusion.     Pl.’s Mem. at 18-22.

Generally, before addressing steps four and five of the five-step

sequential evaluation, an ALJ must assess the claimant’s residual

functional capacity.   20 C.F.R. § 404.1520.    The residual

functional capacity determines what a person can do in a work

setting despite any impairments or limitations based on all the

relevant evidence in her case.    In conducting a residual

functional capacity analysis, an ALJ must perform an individual

or function-by-function assessment of the following exertional

capacities: “[s]itting, standing, walking, lifting, carrying,

pushing, and pulling[,]” and the following non-exertional

capacities: “postural (e.g., stooping, climbing), manipulative

(e.g., reaching, handling), visual (seeing), communicative

(hearing, speaking), and mental (e.g., understanding and

remembering instructions and responding appropriately to

supervision).”   Social Security Ruling 96-8p, Policy

Interpretation Ruling Titles II and XVI: Assessing Residual
                               -16-

Functional Capacity in Initial Claims, 1996 WL 374184 at *5-6

(July 2, 1996).   However, if “there is no allegation of a

physical or mental limitation or restriction of a specific

functional capacity, and no information in the case record that

there is such a limitation or restriction, the adjudicator must

consider the individual to have no limitation or restriction with

respect to that functional capacity.”   Hartline v. Astrue, 605 F.

Supp. 2d 194, 204-05 (D.D.C. 2009) (emphasis added).    In other

words, there are some situations where “an articulation of the

function-by-function analysis is not required, particularly for

capacities for which no limitation is alleged.”    Banks v. Astrue,

537 F. Supp. 2d 75, 84 (D.D.C. 2008).

     Here, the record shows that the ALJ assessed whether

plaintiff could perform light work, so long as that work was low

stress, involved minimal interpersonal interaction with

supervisors, coworkers, and the public, and consisted of simple,

rote, and repetitive job tasks.   R. at 19.   Broyles did not

specify which capacities she identified and challenged before the

ALJ for which the ALJ did not perform a function-by-function

analysis.   The ALJ addressed the exertional factors by

determining that Broyles was capable of performing all of the

exertional demands of light work, and the non-exertional factors

by determining that her alleged affective and anxiety disorders

and learning disability caused her to have a moderately decreased
                                -17-

ability to sustain attention concentration, persistence and pace.

Id.   The ALJ further noted that he relied upon the State agency

assessment and Miknowski’s assessment to support his

determination of Broyles’ residual functional capacity.    Id. at

20.   Thus, the ALJ did not fail to properly assess Broyles’

residual functional capacity.

                            CONCLUSION

      Because the ALJ’s rejection of the plaintiff’s application

for benefits was supported by substantial evidence in the record,

the Commissioner’s motion for affirmance will be granted, and

Broyles’ motion for reversal will be denied.    An appropriate

order accompanies this memorandum opinion.

      SIGNED this 18th day of December, 2012.


                                      /s/
                                RICHARD W. ROBERTS
                                United States District Judge
