                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA



CHARLES JACOB JR.,

        Plaintiff,

                 v.                                                   Civil Action No. 15-600 (DAR)

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,

        Defendant.



                                      MEMORANDUM OPINION

        This case was assigned to the undersigned United States Magistrate Judge for all purposes.

See 06/23/2015 Referral (ECF No. 12). 2 Currently for determination by the undersigned are

Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Motion”) (ECF No. 15) and Defendant’s

Motion for Judgment of Affirmance and in Opposition to Motion for Judgment of Reversal

(“Defendant’s Motion”) (ECF No. 16). Upon consideration of the motions, the memoranda in

support thereof and in opposition thereto, the administrative record (“AR”) (ECF No. 6), and the

entire record herein, Plaintiff’s motion will be granted in part and denied in part, and Defendant’s

motion will be denied. 3



1
 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill, who currently serves as the
Acting Commissioner of Social Security for the Social Security Administration, will be substituted for the former
Acting Commissioner, Carolyn W. Colvin.
2
 The parties consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Consent to Proceed before US Magistrate Judge for All Purposes (ECF No. 10) at 1.
3
 The undersigned notes that while Plaintiff’s Motion is penned as a motion for summary judgment, made pursuant
to Fed. R. Civ. P. 56, the District of Columbia Circuit has established that, on review of a determination by the
Social Security Administration, application of the summary judgment standard is inappropriate. See Igonia v.
Jacob v. Berryhill                                                                                               2


BACKGROUND

         Plaintiff Charles Jacob Jr. brings this action seeking judicial review of a final decision by

Defendant Acting Commissioner of the Social Security Administration, pursuant to Section 405(g)

of the Social Security Act, 42 U.S.C. §§ 401 et seq. (“SSA”). Plaintiff’s Memorandum in Support

of Plaintiff’s Motion for Summary Judgment (“Plaintiff’s Memorandum”) (ECF No. 15) at 1.


Procedural History

         On April 26, 2011, Plaintiff applied for Supplemental Security Income (“SSI”) and

Disability Insurance Benefits (“DIB”), alleging disability since January 1, 2000. AR at 180-87,

203. His claims were denied initially and upon reconsideration. AR at 73-115.

         Thereafter, Plaintiff requested an administrative hearing, which took place on June 3, 2013.

AR at 15. On August 8, 2013, an Administrative Law Judge (“ALJ”) issued a determination,

finding that Plaintiff was not disabled. AR at 29. On February 2, 2015, the Commissioner denied

Plaintiff’s request for a review of the ALJ’s decision. AR at 1.


Summary of the ALJ’s Ruling

         On August 8, 2013, the ALJ issued a written opinion, concluding that Plaintiff (referred to

by the ALJ as “the claimant”) was “not disabled under section 1614(a)(3)(A) of the Social Security

Act.” AR at 29. Specifically, the ALJ made the following eleven summary findings:

                     1. The claimant meets the insured status requirements of the Social
                        Security Act through December 31, 2000.

                     2. The claimant has not engaged in substantial gainful activity
                        since January 1, 2000, the alleged onset date.




Califano, 568 F.2d 1383, 1389 (D.C. Cir. 1977). Thus, the undersigned will consider Plaintiff’s Motion as a request
for judgment of reversal of the administrative decision.
Jacob v. Berryhill                                                                            3


                     3. The claimant has the following severe                impairments :
                        degenerative disc disease and affective disorder.

                     4. The claimant does not have an impairment or combination of
                        impairments that meets or medically equals the severity of one
                        of the listed impairments in 20 CFR Part 404, Subpart P,
                        Appendix 1.

                     5. After careful consideration of the entire record, I find that the
                        claimant has the residual functional capacity to perform simple,
                        unskilled (SVP 1 or SVP 2) light work as defined in 20 CFR
                        404.1567(b) and 416.967(b).

                     6. The claimant is unable to perform any past relevant work.

                     7. The claimant was born on December 11, 1964, and was 35 years
                        old, which is defined as a younger individual age 18-49, on the
                        alleged disability onset date.

                     8. The claimant has a marginal education and is able to
                        communicate in English.

                     9. Transferability of job skills is not an issue because claimant does
                        not have past relevant work.

                     10. Considering the claimant’s age, education, work experience, and
                         residual functional capacity, there are jobs that exist in
                         significant numbers in the national economy that the claimant
                         can perform.

                     11. The claimant has not been under a disability, as defined in the
                         Social Security Act, from January 1, 2000, through the date of
                         this decision.

AR at 18-29.




CONTENTIONS OF THE PARTIES

         Plaintiff requests that this court, upon review of the decision of the Social Security

Administration, find that the ALJ erred and award Supplemental Security Income benefits to
Jacob v. Berryhill                                                                                   4


Plaintiff for the duration of his disability, or in the alternative, remand this case for further

proceedings. Plaintiff’s Memorandum at 1.

         First, Plaintiff argues that the ALJ erred by “disregarding the opinion of [his] treating

physician regarding his degenerative disc disease in favor of his own lay interpretation of medical

tests[.]” Plaintiff’s Memorandum at 11. Plaintiff contends that the ALJ was obligated to conduct

the appropriate treating physician analysis to determine whether controlling weight should be

accorded to the RFC assessment of Plaintiff’s treating physician, Dr. Siham Mahgoub. Plaintiff

notes that because the ALJ erroneously believed the RFC assessment was completed by a nurse

practitioner, rather than a treating physician under the statutory definition, he discounted Dr.

Mahgoub’s RFC assessment and found that it did not originate from an acceptable medical source.

Id. Plaintiff contends, had the ALJ properly conducted the treating physician analysis and

accorded the appropriate weight to Dr. Mahgoub’s opinion that Plaintiff’s “back condition limited

him to, at most, occasionally lifting less than 10 pounds and standing or walking less than two

hours in an eight hour workday,” the ALJ should have restricted Plaintiff’s RFC to “sedentary

work” after evaluating his functional capacity. Id. at 12-13.

         Second, Plaintiff argues that “[t]he ALJ also committed reversible error by failing to

consider the substantial functional limitations caused by [Plaintiff’s] documented mental health

conditions and learning disabilities.” Id. at 15. In support of this contention, Plaintiff asserts that

the record demonstrated his severely limited ability to interact with others. Id. Moreover, Plaintiff

notes that he has a Global Assessment of Functioning (“GAF”) score of 45, which signifies a

“serious psychiatric illness[,]” in addition to depression, and audio and visual hallucinations. Id.

at 15-16. Plaintiff argues that these difficulties are further exacerbated by his learning disability ,

as evidenced by his functional illiteracy and inability to do basic math calculations. Id. at 16.
Jacob v. Berryhill                                                                                 5


Given these circumstances, Plaintiff contends that the ALJ erred in finding that Plaintiff had only

“some cognitive limitations that could be accounted for by restricting him to unskilled work.” Id.

at 17.

         Third, Plaintiff contends that the ALJ erred in classifying his HIV condition as “non-

severe,” and thereby failing to analyze his condition under Step 3 of the sequential evaluation

process. Id. Plaintiff avers that as a result of his HIV condition, he has had “two courses of

shingles” as well as bronchitis COPD, and other respiratory infections. Id. at 19. Plaintiff contends

that the presence of these complications obligated the ALJ to conduct a Step 3 analysis of his HIV

condition to determine whether his condition met one of the statutory listings. Id. at 17-19.

         Fourth, Plaintiff contends the ALJ erred in “failing to pose proper hypothetical questions

to the vocational examiner” and then relying on that examiner’s testimony despite its inconsistency

with the Dictionary of Occupational Titles (“DOT”). Id. at 21. Plaintiff argues that the ALJ, in

posing the hypothetical questions, “failed to properly consider Mr. Jacob’s mental and cognitive

limitations in considering the availability of jobs in the local economy.” Id. In addition, Plaintiff

asserts that “the jobs titles listed by the vocational expert are not consistent with the DOT.” In

relevant part, Plaintiff states:

                     In the first instance, the job titles listed by the vocational expert are
                     not consistent with the DOT. The job title for the DOT number given
                     for “Machine Tender” is actually “CUTTING MACHINE
                     TENDER, DECORATIVE”; the job title for “Packer” is
                     “ROUTING CLERK”; the job title for “Bench Worker” is “TABLE
                     WORKER”; and the job title for “Quality Control Worker” is
                     “CHECK WEIGHER (ORDNANCE).” See Hrg. Tr. (Dkt. 6-2), at
                     63-64 (referencing DOT Job Titles #775.685-010; #222.687-022;
                     #783.687-030; #737.687-026). The ALJ nonetheless concluded that
                     the vocational examiner’s testimony, including his claim that certain
                     numbers of the listed jobs “existed” in the local economy, was
                     “consistent” with the DOT. ALJ Dec. (Dkt. 6-2), at 11.
Id. at 21.
Jacob v. Berryhill                                                                                 6


         In response to Plaintiff’s contentions, Defendant avers that the ALJ did not err in finding

that Plaintiff was not disabled. Defendant’s Memorandum in Support of Her Motion for Judgment

of Affirmance and in Opposition to Plaintiff’s Motion for Judgment of Reversal (“Defendant’s

Memorandum”) (ECF No. 17) at 1. Defendant contends that all of the ALJ’s findings were

supported by substantial evidence. Id. First, Defendant argues that the ALJ provided several

reasons for affording Dr. Mahgoub’s opinion little weight, thus meeting the necessary burden. Id.

at 12. Defendant “concedes that the ALJ mistakenly thought Dr. Mahgoub’s March 4, 2013

opinion was authored by a nurse practitioner and, therefore, did not consider it under the

regulations pertaining to treating sources.” Id. That said, Defendant avers that the ALJ’s mistake

was “harmless error” considering sufficiency of the ALJ’s analysis. Id. Moreover, Defendant

contends that Plaintiff’s medical record considering his back pain is more consistent with the

ALJ’s analysis than Dr. Mahgoub’s opinion. Id. at 13.

         Second, Defendant argues that the ALJ properly considered the totality of Plaintiff’s mental

impairments. Id. at 14. Specifically, Defendant contends:

                     The ALJ considered Plaintiff’s social functioning, finding that he
                     had no difficulties in this area. The record supports the ALJ’s
                     finding. The ALJ pointed out that Plaintiff was cooperative during
                     his mental status examinations, and reported that he stayed with
                     “lady friends[.]” Furthermore, Plaintiff showed no uncooperative
                     behavior with physicians and was highly motivated to advance
                     himself educationally and vocationally. Plaintiff told Dr. Kaiser that
                     although he preferred to be alone, he got along with others and he
                     had no problems relating to co-workers and supervisors. Based on
                     these factors, the ALJ reasonably found that Plaintiff’s social
                     functioning would not impede his ability to work. Furthermore, the
                     VE testified that even if Plaintiff were unable to have no contact
                     with the public and no more than superficial contact with
                     supervisors and co-workers, he could still perform the jobs of
                     machine tender, bench worker, and quality control worker. So even
                     if Plaintiff arguably had some limitations with regard to his social
                     functioning, he would still be able to perform the identified
                     occupations and, therefore, this limitation would not undermine the
Jacob v. Berryhill                                                                                    7


                     foundation for the expert’s ultimate conclusion that there are
                     alternative jobs appellant can do.

Id. at 15 (internal citations and quotation marks omitted).         In addition, Defendant counters

Plaintiff’s argument regarding his GAF score, claiming that “the GAF scale has been eliminated

from the newest edition of the DSM because of factors including its conceptual lack of clarity and

questionable psychometrics in routine practice.” Id. Defendant also avers that contrary to

Plaintiff’s contention, there is no evidence in the record that Plaintiff is functionally illiterate and

that evaluations estimated his intelligence to be “below average” as opposed to “significant ly

below average.” Defendant concludes by stating “[t]o the extent that the evidence supported some

impairment in Plaintiff’s cognitive functioning, the ALJ accounted for it by limiting Plaintiff to

simple, unskilled work[.]” Id. at 17.

         Third, Defendant argues that the ALJ properly considered Plaintiff’s HIV condition. Id.

In support, Defendant contends that the ALJ accurately addressed the opinion of Dr. John Hogan,

Plaintiff’s infectious disease specialist, who consistently reported that Plaintiff’s HIV/AIDS

condition was asymptomatic. Id. Moreover, Defendant states that “Dr. Hogan indicated that

although Plaintiff was HIV positive, no opportunistic infection had occurred, and Plaintiff had no

other complications such as persistent unresponsive diarrhea, herpes, cognitive loss, restrictions in

social functioning, or restrictions in activities of daily living[.]”   Id. (internal citation omitted).

Therefore, Defendant contends that the evidence supported the ALJ’s finding that Plaintiff’s

condition was not severe. Id. at 18. Defendant argues that Plaintiff’s contentions regarding his

shingles episodes and various breathing issues were insufficient to rebut this conclusion. Id. at 18-

20.

         Fourth, Defendant contends that Plaintiff’s argument with regard to the vocational expert

is without merit. Id. at 20. Defendant contends that the ALJ’s hypothetical questions to the
Jacob v. Berryhill                                                                                   8


vocational expert properly framed the totality of Plaintiff’s residual functional capacity. Id. at 20-

21. Defendant concedes that two of the job titles listed by the vocational expert did not adequately

correspond with the titles listed in the DOT. Id. at 22-23. However, Defendant argues that this

mistake was “harmless error[,]” in that two of the job titles listed by the vocational expert did

correspond with the DOT listings. Id. at 23. Therefore, Defendant contends that there were still

numerous jobs in the economy even after omitting the erroneous titles. Id.

         Plaintiff, in his reply, reiterates his previous arguments in favor of reversal or remand.

Plaintiff’s Reply Memorandum in Support of Plaintiff’s Motion for Summary Judgment

(“Plaintiff’s Reply”) (ECF No. 19). Additionally, Plaintiff argues that Defendant’s concessions

with regard to various errors committed by the ALJ further justify such actions. Id. at 2-3, 6, 8.



STATUTORY FRAMEWORK

         The Social Security Act established a framework to provide “disability insurance benefits”

to eligible individuals and “to provide supplemental security income to individuals who have

attained age 65 or are blind or disabled.” 42 U.S.C. §§ 423, 1381, 1381a. The statute defines

disability for non-blind individuals as the “inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period of not less

than 12 months[.]” § 423(d)(1)(A); 20 C.F.R. § 416.905. A disabled individual is eligible for

supplemental security income if he or she meets additional statutory requirements concerning

“income” and “resources.”       42 U.S.C. § 1382(a).      The Social Security Administration has

promulgated regulations, pursuant to the statue, outlining a five-step process for evaluating

disability of adults. See 20 C.F.R. §§ 404.1520, 416.920.
Jacob v. Berryhill                                                                                     9


         First, the agency evaluates whether the claimant is “doing substantial gainful activity[;]” if

so, the agency concludes that the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), (b);

416.920(a)(4)(I), (b). If not, the agency determines whether the claimant has “a severe medically

determinable physical or mental impairment that meets the duration requirement . . . or a

combination of impairments that is severe and meets the duration requirement . . . .” §§

404.1520(a)(4)(ii), 416.920(a)(4)(ii). The impairment or combination of impairments is severe if

it “significantly limits [the claimant’s] physical or mental ability to do basic work activities . . . .”

§§ 404.1520(c); 416.920(c). If deemed severe, the agency then determines whether the impairment

“meets or equals one of [the] listings” and the duration requirement, and if so, the agency concludes

that the claimant is disabled. §§ 404.1520(a)(4)(iii), (d); 416.920(a)(4)(iii), (d). The “listin gs”

refers to a “listing of impairments” which “describes for each of the major body systems

impairments that [the agency] consider to be severe enough to prevent an individual from doing

any gainful activity, regardless of his or her age, education, or work experience.” § 404.1525(a).

         Next, the agency assesses the claimant’s “residual functional capacity and . . . past relevant

work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), (f); 416.920(a)(4)(iv), (e), (f). Residual functional

capacity is “the most [an individual] can still do despite . . . physical and mental limitations,” from

all medically determinable impairments “that affect what [he or she] can do in a work setting.” §

404.1545. If the claimant has the residual functional capacity to perform his or her “past relevant

work,” the claimant is deemed not disabled. § 404.1560(b)(3). Otherwise, the agency assesses

the claimant’s “residual functional capacity and . . . age, education, and work experience to see if

[he or she] can make an adjustment to other work.” §§ 404.1520(a)(4)(v), (g); 416.920(a)(4)(v),

(g). If the claimant can adjust to other work that “exist[s] in significant numbers in the national

economy[,]” the agency determines that the individual is not disabled. § 404.1560(c). However,
Jacob v. Berryhill                                                                                 10


if the claimant cannot make such an adjustment, the agency finds that the individual is disabled.

§§ 404.1520(g)(1), 416.920(g)(1).



APPLICABLE STANDARD

          Claimants may seek judicial review in district court of “any final decision of the

Commissioner of Social Security made after a hearing to which he was a party . . . .” 42 U.S.C. §

405(g).    “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 v.

Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (citations omitted). “In other words ‘[a] district

court’s review of the [Social Security Administration’s] findings of fact is limited to whether those

findings are supported by substantial evidence.’” Little v. Colvin, 997 F. Supp. 2d 45, 49 (D.D.C.

2013) (citations omitted). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Butler, 353 F.3d at 999 (internal quotation

marks omitted) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “The test requires more

than a scintilla, but can be satisfied by something less than a preponderance of the evidence.” Id.

(citation omitted) (internal quotation marks omitted).

          The United States Court of Appeals for the District of Columbia Circuit has observed that

“[s]ubstantial-evidence review is highly deferential to the agency fact-finder,” Rossello ex rel.

Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008), and that “a reviewing judge must uphold

the ALJ’s legal ‘determination if it . . . is not tainted by an error of law.’” Isaraphanich v. Comm’r

of Soc. Sec. Admin., No. 12-0700, 2013 WL 3168141, at *3 (D.D.C. June 21, 2013) (citations

omitted); see also Nicholson v. Soc. Sec. Admin., 895 F. Supp. 2d 101, 103 (D.D.C. 2012) (citation

omitted) (internal quotation marks and alteration omitted) (noting that the inquiry upon judicial
Jacob v. Berryhill                                                                                  11


review is whether the ALJ has analyzed all evidence and has sufficiently explained the weight he

had given to obviously probative exhibits); see also Little, 997 F. Supp. 2d at 49 (citations omitted)

(noting that the court “is not to review the case ‘de novo’ or reweigh the evidence.”). Moreover,

“[t]he ALJ has a duty to explain why they either ignored or rejected contradictory evidence.”

Pinkney v. Astrue, 675 F. Supp. 2d 9, 18 (D.D.C. 2009) (internal citation omitted). “The plaintiff

bears the burden of demonstrating that the Commissioner’s decision [was] not based on substantial

evidence or that incorrect legal standards were applied.” Muldrow v. Astrue, No. 11-1385, 2012

WL 2877697, at *6 (D.D.C. July 11, 2012) (citation omitted); see also Garnes v. Colvin, No. 12-

1090, 2013 WL 5297221, at *4 (D.D.C. Aug. 27, 2013).

         This Court applies the “treating physician rule[,]” which establishes that a treating

physician’s report is “binding on the fact-finder unless contradicted by substantial evidence.”

Contreras v. Comm’r of Soc. Sec., No. 15CV1277TSCDAR, 2017 WL 943900, at *1 (D.D.C. Mar.

9, 2017); Settles v. Colvin, 121 F. Supp. 3d 163, 169 (D.D.C. 2015); Espinosa v. Colvin, 953 F.

Supp. 2d 25, 32 (D.D.C. 2013); see also 20 C.F.R. § 404.1527 (c)(2) (stating that when “a treating

[physician]’s opinion . . . is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [plaintiff’s]

case record, [SSA] will give it controlling weight”) (citations omitted). “If an ALJ rejects a treating

physician’s opinion, the ALJ bears the burden of explaining why he has rejected the treating

physician’s opinion and how the doctor’s assessment is contradicted by substantial evidence.”

Espinosa, 953 F. Supp. 2d at 32.
Jacob v. Berryhill                                                                                                 12


DISCUSSION

         Plaintiff has met his burden in demonstrating that the ALJ erred with regard to his analysis

of the opinion of Plaintiff’s treating physician. The record reflects that Dr. Siham Mahgoub, one

of Plaintiff’s treating physicians, treated Plaintiff in 2013 and evaluated his back condition. AR

at 604. On March 4, 2013, Dr. Mahgoub prepared an RFC assessment and opined that Plaintiff

was limited to lifting less than 10 pounds and standing/walking less than two hours per work day.

AR at 613. Dr. Mahgoub based her opinion on her observations of Plaintiff’s “severe lower back

pain” and “mild posterior disc protrusion” in his L4-L5 vertebrae. AR at 613. Dr. Mahgoub’s

opinion conflicted, in part, with the ultimate conclusion that Plaintiff was not disabled.

         The ALJ, in assessing Plaintiff’s RFC evaluation, mistakenly concluded that the RFC

analysis had been completed by a nurse practitioner, rather an individual meeting the statutory

definition of a treating physician. AR at 27. In so doing, the ALJ failed to apply the treating

physician rule to determine whether Dr. Mahgoub’s opinion regarding Plaintiff’s RFC was entitled

to controlling weight as required by the applicable authorities. Settles, 121 F. Supp. 3d at 169.

         The undersigned finds that Defendant’s contention that the ALJ’s failure to apply the

treating physician rule constitutes “harmless error” is without merit and unsupported by the case

law of this court and the District of Columbia Circuit. 4 While the ALJ outlined some findings

comparing the RFC to Plaintiff’s entire medical record, it is clear that the ALJ intentionally

discounted the RFC analysis of Dr. Mahgoub, because his assumption that the RFC assessment

had been completed by a “treating nurse practitioner,” rather than Plaintiff’s treating physician.

AR at 27. Without substantial evidence to the contrary, Dr. Mahgoub’s opinion was binding on



4
 The undersigned finds no authority to support the application of the “harmless error” standard to actions for review
of a denial of disability benefits by an ALJ. Thus, the undersigned makes no finding with respect to the argument that
the error here can be deemed “harmless[.]”
Jacob v. Berryhill                                                                                                   13


the ALJ. See Settles, 121 F. Supp. 3d at 169 (internal citation omitted). However, Defendant has

made no such showing of contradictory evidence in the record. Therefore, the undersigned is

unable to conclude that the ALJ’s failure to consider Dr. Mahgoub’s opinion under the treating

physician rule was harmless, or that the ALJ’s determination was free of error and made in

accordance with the applicable statutory authority. As such, the court will remand this case to the

Social Security Administration for re-evaluation of Dr. Mahgoub’s opinion in accordance with the

applicable authorities of this jurisdiction. 5



CONCLUSION

         For the reason set forth herein, Plaintiff’s Motion for Summary Judgment (ECF No. 15)

will be granted in part. Defendant’s Motion for Judgment of Affirmance (ECF No. 16) will be

denied, and this case will be remanded to the Social Security Administration for further

proceedings consistent with this Memorandum Opinion, by order filed contemporaneously

herewith.




                                                                         _                /s/______________
Date: March 30, 2017                                                          DEBORAH A. ROBINSON
                                                                             United States Magistrate Judge




5
 In light of this determination, the court will make no further findings with regard to Plaintiff’s additional claims at
this time, anticipating that they will be addressed on remand after proper application of the treating physician rule.
