                         UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

__________________________________

DIESA PARIS,                                 :
                                             :
                    Plaintiff,               :
                                             :
            v.                               : Civil Action 11-2163 (GK)
                                             :
MICHAEL J. ASTRUE,                           :
Commissioner of Social Security,             :
                                             :
               Defendant.                    :
__________________________________

                               MEMORANDUM OPINION

     Plaintiff, Diesa Paris, brings this action seeking judicial

review of a final decision of the Commissioner of the Social

Security    Administration       (“Commissioner”)        pursuant   to    Section

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

her claims for Disability Insurance Benefits (“DIB”) pursuant to

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

     This matter is before the Court on Plaintiff’s Motion for

Judgment of Reversal [Dkt. No. 8] and Defendant’s Motion for

Judgment of Affirmance [Dkt. No. 10].                Upon consideration of the

parties’    cross-motions,       the   administrative       record,      and   the

entire     record    herein,     and   for     the    reasons   stated     below,

Plaintiff’s Motion for Judgment of Reversal is hereby granted in

part and denied in part, and Defendant’s Motion for Judgment of

Affirmance is hereby denied.



                                       -1-
I.    BACKGROUND

      Plaintiff        is    a    fifty-year-old           woman    who   resides    in

Washington,      DC.    Administrative            Record   (“AR”)    at   37,   102-105

[Dkt. No. 3]. She has a high-school education and no specialized

training. AR at 38, 136. Plaintiff last worked full time on

January 31, 2007 as a retail manager. See AR at 102, 132. She

has been diagnosed with systemic lupus erythematosus, psoriatic

arthritis, and major depressive order. AR at 15.

      As     a   result      of    these     disorders,       Plaintiff     filed   an

application for Disability Insurance Benefits pursuant to Title

II of the Social Security Act on February 25, 2008. Plaintiff’s

claim was denied initially and upon reconsideration. On April 1,

2010,    a   hearing    regarding         Plaintiff’s      alleged    disability    was

held in front of an Administrative Law Judge (“ALJ”). On June

11,     2010,    the   ALJ       denied    Plaintiff’s        request.    Thereafter,

Plaintiff requested the Appeals Council to review the decision

of the ALJ. On October 3, 2011, the Appeals Council affirmed the

decision of the ALJ.

      A.     Disability Determination 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) &

                                            -2-
(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   her   previous            work    and   work     commensurate                 with    her   age,

education,       and       work    experience          that    exists            in    the    national

economy. 42 U.S.C. § 423(d)(2)(A).

       The Social Security Administration (“SSA”) uses a five-step

evaluation process to determine whether a claimant is disabled,

thus    qualifying         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) meets or equals an impairment listed in 20 C.F.R.

§ 404, subpart P, appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii).

Between    the    third       and    fourth       step,       the    SSA         uses    the    entire

                                                 -3-
record      to   make    a     determination         of    the     claimant's        residual

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

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

“other 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 disabled and

qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(v).

       B.     The ALJ’s Ruling

       The ALJ applied the sequential five-step process described,

supra, and determined that, while Plaintiff suffered from severe

impairments       including         depression,           psoriatic          arthritis,   and

systemic lupus erythematosus, she was not disabled within the

meaning of the Social Security Act. The issues in dispute in

this   case      arise    in    steps   four        and     five    of       the   assessment

process.

       At step four of the assessment, the ALJ determined that

Plaintiff had the RFC to perform a range of sedentary work so




                                             -4-
long    as   she    had   a   “sit/stand      option” 1   and   was    limited      to

unskilled tasks involving no more than occasional contact with

the public. AR at 24. At step five of the evaluation process,

the ALJ relied on a vocational expert’s testimony to determine

that Plaintiff “is capable of making a successful adjustment to

[]    work   that   exists    in   significant     numbers      in    the   national

economy.” Id. at 26.

II.    STANDARD OF REVIEW

       A district court is limited in its review of the SSA’s

findings     to    determining     whether    those   findings       are    based   on

substantial evidence. 42 U.S.C. § 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) (citation omitted), requiring “more than a scintilla,

but ... something less than a preponderance of the evidence.”

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

2010) (citation omitted).

       A court must “carefully scrutinize the entire record” but

may not reweigh the evidence or supplant the SSA's judgment of

1
  The ALJ specified that “[t]he claimant needs a sit/stand
option; that is, she should not be required to stand for more
than 20/30 minutes before being permitted to sit, or be required
to sit for more than 20/30 minutes before being permitted to
stand.” AR at 24.

                                        -5-
the weight of the evidence with its own.                         It must only review

whether the ALJ's findings are based on substantial evidence and

whether the ALJ correctly applied the law. Butler, 353 F.3d at

999; Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C. 1994); Davis v.

Heckler,     566       F.Supp.     1193,      1195     (D.D.C.         1983).     Finally,

substantial deference should be given to the ALJ's decision, but

the evidence should be read in the light most favorable to the

claimant.       See    Davis,     862   F.Supp.       at   4;    see    also     Simms    v.

Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (reviewing court

must determine whether the Commissioner, acting through the ALJ,

"has analyzed all evidence and has sufficiently explained the

weight     he      [or     she]     has      given      to      obviously        probative

exhibits....").

III. ANALYSIS

     A.     The ALJ’s Evaluation of Dr. Lumpkins’ Opinion

     The     administrative         record         contains     progress        notes    and

opinions from Tanya Lumpkins, M.D., a rheumatologist and one of

Plaintiff’s treating physicians.

     Plaintiff argues that the ALJ did not properly evaluate Dr.

Lumpkins’ opinions because he: (1) failed to consider whether

her opinion       was    entitled       to   controlling        weight;    (2)    did    not

discuss     the       proper    factors      for     the     evaluation     of     medical

opinions; and (3) did not evaluate many of the limitations noted

in her January 18, 2008 opinion. Pl.’s Mot. at 6-8. Defendant

                                             -6-
responds that: (1) the ALJ accurately discussed when a treating

physician’s opinion should be afforded controlling weight; (2)

the   ALJ    properly       considered         relevant        regulatory     factors     when

weighing Dr. Lumpkins’ opinion; and (3) to the extent the ALJ

failed      to     properly       evaluate      any      portion       of    Dr.   Lumpkins’

opinion, such error does not warrant remand. Def.’s Mot. at 15,

18-19.

      The case law in this Circuit is clear that an ALJ must

accord      substantial         weight    to    the     reports       and   opinions     of   a

claimant’s         treating       physician.          Butler,      353      F.3d    at    1003

(“Because         a     claimant’s         treating        physicians          have      great

familiarity with [her] condition, their reports must be accorded

substantial           weight.”)     (internal          citation       omitted)     (internal

quotation omitted). A treating physician’s report is “binding on

the   fact-finder         unless    contradicted          by    substantial        evidence.”

Id. (internal citation omitted) (internal quotation omitted).

      Defendant is correct that the ALJ properly accorded Dr.

Lumpkins’         opinion     significant            weight.     After      discussing     the

regulatory instructions for weighing medical opinions, including

when a treating physician’s opinion is entitled to controlling

weight      (AR    at    19),    the     ALJ   discussed        Dr.    Lumpkins’      medical

opinion and, consistent with the law of this Circuit, accorded

it “significant weight.” AR at 20; see Payne v. Shalala, Civ. A.

No. 93-0288, 1993 WL 405757 at *3 (D.D.C Sept. 24, 1993) (“The

                                               -7-
ALJ was obligated to give significant weight to the opinion of

[] Plaintiff’s treating physician [] so long that opinion was

supported     by   acceptable       laboratory          and     clinical          diagnostic

techniques and was not contradicted by substantial evidence in

the record.”).

     Defendant      is    also   correct        that,    contrary          to    Plaintiff’s

argument,    the   ALJ    was    not    required        to     discuss          each    of   the

relevant regulatory factors when deciding what weight to give

Dr. Lumpkins’ opinion. The regulation at issue states that a ALJ

will “consider      all    of    the   following         factors      in        deciding     the

weight     [to]    give    to    any     medical         opinion.”          20     C.F.R.      §

404.1527(d) (emphasis added). Notably, the 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.     Plaintiff points to no authority saying that the ALJ

must do so.

     However,      Plaintiff      is    correct         that    the    ALJ        failed     to

properly    evaluate      certain      relevant     portions          of    Dr.        Lumpkins

January 18, 2008 opinion. For instance, the ALJ did not discuss,

at any point in the five-step evaluation process, Dr. Lumpkins’

opinion that Plaintiff could not bend, twist or kneel and could

only occasionally move her neck, reach at shoulder level, stand,

walk, and perform repetitive movements. AR at 211. The ALJ was

required to explain why he paid no attention to Dr. Lumpkins’

                                          -8-
opinion on these issues.                 Butler, 353 F.3d at 1003 (“We []

require an ALJ who rejects the opinion of a treating physician

[to]   explain     his    [or    her]     reasons         for    doing       so.”   (internal

citation omitted) (internal quotation omitted).

       Accordingly, upon remand, the ALJ must explain the weight

he attaches to Dr. Lumpkins’ opinion, and if he disregards any

of her conclusions, he must explain his reasons for doing so.

       B.   The ALJ’s Assessment of Plaintiff’s RFC

       At step four of the disability determination process, the

Commissioner is required to show that a claimant’s RFC allows

her    to   perform        other    work.           20      C.F.R.       §§    404.1520(f),

416.920(f)(1).      Assessing           RFC     is       based     upon       all   relevant

evidence,   which        may    include       the    claimant’s         ability      to    meet

physical    or     mental       demands        of     work       and     observations       of

limitations by family and friends. 20 C.F.R. § 416.945.

       Plaintiff    argues       that    the        ALJ’s    RFC       assessment     is   not

supported    by    substantial          evidence         because       the    ALJ   did    not

evaluate    medical        opinions       that           conflicted       with      his    RFC

assessment. Pl.’s Mot. at 11. Plaintiff further argues that the

ALJ was required “to perform a more detailed assessment of the

Plaintiff’s capacity to perform the mental demands of work.” Id.

at 14 (emphasis in the original). Defendant responds that, to

the extent the ALJ failed to evaluate certain medical opinions,

such error does not warrant reversal or remand. Def.’s Mot. at

                                              -9-
18-19.       Defendant          further        argues        that       “the       ALJ        correctly

evaluated Plaintiff’s mental functioning as the regulations at

20 C.F.R. § 404.1520a direct. That is, [the ALJ] made findings

in     the   four        broad    areas        of        mental     functioning              that     were

supported      by        substantial         evidence,            and    he    cited           to     that

evidence.” Def.’s Mot. at 16.

       An    ALJ’s       decision      is    statutorily            required           to    include     a

discussion      of       “findings       and      conclusions,          and    the          reasons     or

basis    therefor,         on    all   the      material          issues      of       fact,    law     or

discretion          presented          on           the      record.”              5         U.S.C.      §

557(c)(3)(A)(1988).              “When      the      ALJ     arrives          at       a     conclusion

regarding      [     ]    functions         that     contradicts           some        part     of     the

evidence      on    the     record,       the       ALJ     must    explain            his    [or     her]

rationale,         for     ‘[t]he      judiciary            can     scarcely            perform       its

assigned review function ... without some indication ... [as to]

whether       [the]       evidence          was      rejected           rather          than        simply

ignored.’” Ross v. Astrue, 636 F. Supp. 2d 127, 133 (D.C. Cir.

2009)    (citing         Brown    v.   Bowen,        794     F.2d       703,   708          (D.C.     Cir.

1986)). “The ALJ has a duty to explain why [she] either ignored

or rejected contradictory evidence.” Thomas v. Astrue, 677 F.

Supp. 2d      300,       309 (D.D.C.         2010)        (citing       See    v.      Wash.        Metro.

Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994) (“[W]hen faced

with     evidence         in     the     record           contradicting            his        [or     her]

conclusion, an ALJ must affirmatively reject that contradictory

                                                  -10-
evidence and explain his rationale for doing so.”) (emphasis

added)).

       Plaintiff    is    correct    that     the    ALJ   failed    to   properly

evaluate   evidence       that   contradicted        his   RFC   assessment.     For

instance, the ALJ acknowledged Dr. Cott’s finding that Plaintiff

had experienced one or two episodes of decompensation, each of

extended duration. AR at 19. The ALJ also acknowledged that Dr.

Cott’s assessment was affirmed by Dr. Nachbahr. Id. However, at

step   four   of   the    disability    determination          process,   the    ALJ

concluded,    without      explanation,       that    “[t]he     record   does   not

disclose any episodes of decompensation of extended duration,”

id. at 23, which was directly contrary to the opinions of Dr.

Cott and Dr. Nachbahr. The ALJ’s conclusory determination, with

no explanation as to why he rejected or ignored their opinions

is insufficient.

       Similarly, the ALJ failed to explain why he chose not to

consider those portions of Dr. Garmoe’s report that contradicted

the his RFC assessment. More specifically, Dr. Garmoe found that

Plaintiff was severely depressed, discouraged and withdrawn, and

that   persons     with   profiles    such     as    Plaintiff’s     usually     had

marked distress and severe impairment in functioning. AR at 441.

However, the ALJ did not reference this part of Dr. Garmoe’s

report in his RFC assessment, let alone affirmatively reject it

and explain his rationale for doing so.

                                       -11-
       In sum, the ALJ failed to properly evaluate evidence that

contradicted his RFC assessment. Therefore, upon remand, the ALJ

must   reconsider             the   medical      testimony           in    its       entirety,   and

provide     an        explanation          for      rejecting             any    evidence        that

contradicts his determination.

       C.   The   ALJ’s  Reliance                       Upon    the        Testimony       of     the
            Vocational Expert

       At step five in the disability determination process, if

the claimant is found unable to do any work she has done in the

past because of severe impairment, the ALJ must consider her

RFC, age, education, and work experience to see if she can do

other types of work. 20 C.F.R. § 404.1520(f)(1). If there are

non-exertional limitations in question, the ALJ may rely on the

expertise        of       a     vocational         expert        (“VE”)          to     assist    in

ascertaining          a       claimant’s    RFC. 2        20    C.F.R.          §§    404.1566(e),

416.966(e).       In      doing      so,    the         ALJ    may    pose       a    hypothetical

question to the VE, communicating the claimant’s age, education,

work experience and RFC. If the hypothetical put to the VE is

flawed or contains omissions, it undermines “the foundation for

the expert’s ultimate conclusion that there are alternative jobs

appellant can do.” Simms v. Sullivan, 877 F.2d 1047, 1051 (D.C.

Cir. 1989).


2
  “The Secretary must introduce expert vocational testimony to
prove that a significant number of jobs are available for the
claimant.” Smith v. Bowen, 826 F.2d 1120, 1122 (D.C. Cir. 1987).

                                                 -12-
      Plaintiff         argues        that    the         ALJ’s      question         to     the   VE    was

fatally      defective           because          the       ALJ       “ignored          or     otherwise

overlooked        the      restrictions           set      forth          by    Dr.     Lumpkins,       the

Plaintiff’s treating physician, without explanation.” Pl.’s Mot.

at 17. Plaintiff further argues that the ALJ “failed to properly

address        the         Plaintiff’s             limitations                 on      concentration,

persistence,         or     pace       in     his       hypothetical                question       to   the

vocational expert.” Id. at 17-18. Defendant responds that the

ALJ’s step five findings are supported by substantial evidence,

and   that     to    the     extent         that       there        are    any      errors     with      the

hypothetical         posed       to    the    VE,         none      of     those      errors       warrant

remand. Def.’s Mot. at 18-20.

      An ALJ who looks to the opinion of a VE at stage five of

the disability determination process “must accurately describe

the claimant’s physical impairment in any question posed to the

expert.”       Butler,       353       F.3d       at      1006.       The       ALJ’s      hypothetical

question     to      the    VE    must       “present           a   faithful          summary      of    the

treating       physician’s            diagnosis         unless        the       ALJ     provides        good

reason    to    disregard          the      physician’s             conclusions.”            Lockard      v.

Apfel, 175 F. Supp. 2d 28, 33 (D.D.C. 2001).

      Plaintiff is correct that the ALJ’s hypothetical did not

fully and accurately describe Plaintiff’s impairments. In fact,

Defendant       concedes         that       the     ALJ      failed            to    include       in   his

hypothetical         question          a    number         of       the    vocationally-relevant

                                                   -13-
restrictions        set    forth          in   Dr.      Lumpkins’       January     18,    2008

opinion. 3    See     Def.’s         Mot.      at      18.    Despite     this     concession,

Defendant contends that Plaintiff has demonstrated no basis for

remand because, even accepting all of the limitations set forth

by Dr. Lumpkins, Plaintiff would still be capable of performing

the jobs identified by the VE. Defendant’s argument has no merit

because      the    ALJ    “must          accurately          describe”      the    claimant’s

impairments unless he provides good reason for disregarding the

physician’s        conclusions.           Butler,       353    F.3d     at   1006    (emphasis

added).      The     ALJ       did     not      accurately        describe         Plaintiff’s

impairments, nor did he explain why he disregarded Dr. Lumpkins’

opinion.

      Furthermore, the ALJ found in his RFC that Plaintiff has

“moderate”     limitations           in     concentration,        persistence        or    pace,

but his hypothetical question to the VE stated that Plaintiff

had   only    “mild”       limitations          in      concentration        persistence     or

pace. See AR at 23, 24, 55.

      These deficiencies in the ALJ’s hypothetical undermine the

foundation for the VE’s conclusion. Accordingly, upon remand, if

the   ALJ    elects       to    call       a   VE,      the    hypothetical        posed    must




3
  As discussed, supra, Dr. Lumpkins concluded that Plaintiff
could not bend, twist or kneel and could only occasionally move
her neck, reach at shoulder level, stand, walk, and perform
repetitive movements. AR at 211.

                                                -14-
describe     the   Plaintiff’s     impairments      accurately     in   light   of

objective medical testimony.

IV.   CONCLUSION

      Upon    consideration      of    the     parties’     cross-motions,      the

administrative record, and the entire record herein, and for the

reasons set forth in this Memorandum Opinion, Plaintiff’s Motion

for Judgment of Reversal is hereby granted in part and denied in

part,   and   Defendant’s     Motion     for     Judgment    of   Affirmance    is

hereby denied.

      This    case   is   hereby      remanded    to   the    Commissioner      for

rulings in steps four and five of the disability determination

process. In consideration of these steps, the entire medical

record, including Dr. Lumpkins’ January 18, 2008 opinion, must

be given due regard.




                                                /s/________________________
August ___, 2012                               Gladys Kessler
                                               United States District Judge


Copies to: attorneys on record via ECF




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