                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

                                    )
GARY D. WORKMAN,                    )
                                    )
          Plaintiff,                )
                                    )
       v.                           )                Civil Action No. 19-cv-1252 (TSC)
                                    )
ANDREW SAUL, Commissioner of Social )
Security                            )
                                    )
          Defendant.                )
                                    )

                                     MEMORANDUM OPINION

       Plaintiff Gary Workman seeks reversal of a June 25, 2018, decision by an Administrative

Law Judge (“ALJ”) denying him both disability insurance benefits and supplemental security

income benefits under Titles II and XVI of the Social Security Act. Pending before the court are

two motions: Workman’s motion for judgment of reversal and remand for payment of benefits,

(ECF No. 12 (“Pl. Br.”)), and Defendant’s motion for remand to the Commissioner of Social

Security for further evaluation pursuant to the fourth sentence of 42 U.S.C. § 405(g), (ECF No.

16 (“Def. Br.”)). Workman also moves, in the alternative, for remand for a new hearing. Upon

consideration of the record and the pleadings, and for the reasons stated below, with respect to

Workman’s application for supplemental security income benefits filed on December 27, 2013,

the court will reverse and remand for award of benefits, and with respect to Workman’s

application for disability insurance benefits and supplemental security income benefits filed on

December 20, 2007, the court will remand for further proceedings consistent with this opinion.

The court will therefore GRANT in part and DENY in part Plaintiff’s Motion for Judgment of

Reversal, or in the Alternative, Remand with respect to reversal, and will GRANT in part
Plaintiff’s motion with respect to remand. Accordingly, the court will GRANT in part and

DENY in part Defendant’s Motion for Remand.

                                      I.      BACKGROUND

       Workman first applied for social security benefits over twelve years ago, on December

20, 2007 (“2007 Application”). (Administrative Record (“AR”) 257–271.) That application,

seeking Disability Insurance Benefits (“DIB”) and Supplemental Security Income benefits

(“SSI”), was denied. (Id. 160, 163, 169, 172.) Workman then exhausted his administrative

remedies through multiple, and ultimately unsuccessful, rounds of rehearings and appeals within

the Social Security Administration. (Id. 137–157, 41–60.) In the meantime, Workman filed a

separate, subsequent application for SSI on December 27, 2013 (“2013 Application”). (Id. 881.)

D.C.’s Department of Disability Services (“DDS”) awarded benefits for that application on June

13, 2014. (Id.)

       Workman timely filed suit in this court on March 18, 2014, seeking reversal of the final

June 8, 2012, adverse ruling on his 2007 Application. He prevailed on one key issue, prompting

remand. Memorandum Opinion & Order, Workman v. Colvin, No. 14-cv-438 (D.D.C. Sep. 1,

2016). The court accepted a U.S. Magistrate’s report and recommendation finding the ALJ’s

evaluation of Workman’s trigger fingers was unsupported by substantial evidence, since the ALJ

did not address, nor give controlling weight to, the findings by two of Workman’s treating

physicians that Workman had abnormal functioning in his upper extremities and fingers. Id. at 6.

The court therefore remanded the case for further factual development of the impact Workman’s

trigger fingers would have on any disability finding. Id. at 7. It denied the rest of Workman’s

motion for reversal, finding no further errors in the ALJ’s decision. Id. at 8–9.




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       On remand, the Appeals Council vacated the final decision and remanded the case to an

ALJ for further proceedings. (AR at 911–914.) In its remand order, the Appeals Council noted

that Workman had filed the 2013 Application and that the Appeals Council was not “affirm[ing]

nor reopen[ing] the determination, which continues to be binding.” (Id. at 913.) The Appeals

Council noted that the 2013 Application was subject to “reopening and revision if additional

development indicates that the conditions for reopening are met.” (Id. (citing 20 C.F.R. §

416.1487).)

       On remand, the ALJ issued a decision denying benefits to Workman on his 2007

Application. (AR at 778–99.) In considering the five steps for determining disability, the ALJ

found that as to Step 1, Workman had not engaged in substantial gainful activity except for

during the first quarter of 2017. (Id. at 785; see also 20 C.F.R. § 404.1571.) At Step 2, the ALJ

found that Workman suffers from severe impairments, including degenerative joint disease of the

knees, trigger fingers, diabetes, and obesity. (AR at 785.) The ALJ concluded that Workman’s

severe impairments “significantly limit [Workman’s] ability to perform basic work activities.”

(Id.) The ALJ further found that Workman’s other impairments of hepatitis C, hypertension,

depression, and substance abuse (in remission) are not severe because “the evidence does not

show that these impairments more than minimally impact” Workman’s “ability to perform basic

work activities.” (Id. at 785–86.) At Step 3, the ALJ determined that Workman’s impairments

did not meet or medically equal impairments in the regulations that would require a finding of

disability. (Id. at 788–89 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),

416.925, 416.926).) The ALJ gave “little weight” to the opinions of Doctors Manning and King,

Workman’s treating physicians, regarding his trigger fingers. (AR at 793–94.) The ALJ further

determined that Workman’s residual functional capacity allowed him to perform light work,




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except for certain non-exertional limitations, including frequently reaching and handling;

occasionally climbing ramps or stairs; balancing, stooping, kneeling, crouching and crawling;

and never climbing ladders, ropes or scaffolds. (Id. at 789.) At Step 4, the ALJ found Workman

cannot perform his past relevant work as a furniture mover because it requires heavy exertion.

(Id. at 794.) The ALJ further found that Workman had past relevant work as a cashier but could

not decide whether he could perform such work again because the record was inconsistent

regarding the actual job duties. (Id. at 795–96.) At Step 5, the ALJ determined there were a

significant number of jobs in the national economy Workman could perform given his residual

functional capacity. (Id. at 797.) The ALJ therefore concluded that Workman was not disabled

as defined under the Act, through the date of the decision, June 25, 2018. (Id. at 798–99.)

        In the same decision, the ALJ reopened Workman’s 2013 Application, on the ground

that this court had remanded the case and that the award of benefits had been obtained by “fraud

or similar fault.” (Id. at 782.) The ALJ noted that Workman “initially reported that he worked

as a cashier at Safeway lifting up to 25 pounds,” and that he later “characterized the work as

mostly a cleaner and stocker lifting up to 100 pounds.” (Id.) The ALJ then found that based on

the first statement, Workman could do his past work, but based on the later statement, Workman

could not. (Id.) Therefore, the ALJ determined, under the preponderance of the evidence

standard, Workman “committed ‘similar fault’ that resulted in the DDS finding him disabled,”

and the ALJ reopened the 2013 Application, found that Workman was not disabled, and reversed

the 2013 Application award of benefits. (Id. at 779, 782.)

       On April 16, 2019, the Appeals Council denied Workman’s request for review of the

June 25, 2018 ALJ decision, rendering the decision final. (Id. at 766–72.) Workman again

timely filed suit in this court seeking reversal of the ALJ’s final decision, and a preliminary




                                                  4
injunction preventing the government from terminating his SSI benefits pending appeal. After a

hearing before this court on May 30, 2019, the government agreed to “voluntarily forego ceasing

the payment of Plaintiff’s supplemental security income benefits until January 31, 2020,” and

Workman agreed to withdraw his motion for a preliminary injunction. (ECF No. 7.)

       Workman then filed a motion for judgment of reversal or, in the alternative, remand. He

argues that the ALJ erred by failing to comply with this court’s order on Workman’s earlier

appeal and by reopening the 2013 Application. (Pl. Br. at 1.) The government then moved for

remand to SSA, arguing that the record is not fully developed on the 2007 Application and that

Workman was not informed of the “similar fault” basis for reopening the 2013 Application.

(Def. Br. at 6, 11.) This court held a hearing on the motions on November 8, 2019.

                                   II.     LEGAL STANDARD

       To receive disability benefits, a claimant must prove that he is unable “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.” 42 U.S.C. § 423(d)(1)(A). The

disability must be so severe that the claimant “is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless of whether such work

exists in the immediate area in which he lives, or whether a specific job vacancy exists for him,

or whether he would be hired if he applied for work.” Id. § 423(d)(2)(A). “The claimant must

support his claim of impairment with ‘[o]bjective medical evidence’ that is ‘established by

medically acceptable clinical or laboratory diagnostic techniques.’” Espinosa v. Colvin, 953 F.

Supp. 2d 25, 31 (D.D.C. 2013) (citing 42 U.S.C. § 423(d)(5)(A)).




                                                5
       In evaluating a disability claim, the Social Security Administration engages in a five-step

inquiry: (1) Is the claimant engaged in substantial gainful work? (2) Does the claimant have a

severe impairment? (3) Does the impairment equate to a listed disability in 20 C.F.R., Part 404,

Subpart P, Appendix 1? (4) Is the claimant able to return to their relevant past work, despite

suffering the impairment? (5) Can the claimant perform any other work that exists in significant

numbers in the national economy? Brown v. Bowen, 794 F.2d 703, 705–06 (D.C. Cir. 1986).

“Between the third and fourth step, the SSA uses the entire record to make a determination of the

claimant’s residual functional capacity . . . , which is ‘the most [the claimant] can still do despite

[the] limitations’ caused by the impairment.” Espinosa, 953 F. Supp. 2d at 31. If, during the

fourth step, the claimant’s residual functional capacity shows they can “return to their relevant

past work,” then the claimant is not disabled. Id. Similarly, if, during the fifth step, the

claimant’s residual functional capacity shows they can adapt to “other work that exists in the

national economy,” then the claimant is not disabled. Id. (citing 20 C.F.R. §§ 404.1520(a)(4)(v),

404.1545(a)(5)(ii)). “During these first four steps, the claimant bears the burden of proof. At the

fifth and final stage, the burden shifts to the Secretary to show that the individual, based upon his

or her age, education, work experience, and residual functional capacity, is capable of

performing gainful work.” Brown, 794 F.2d at 706.

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

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

disability.’” Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (internal quotations

omitted). Consequently, a reviewing court will not overturn the findings of the Commissioner if

they are “supported by substantial evidence and [are] not tainted by an error of law.” Smith v.

Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987); see also 42 U.S.C. § 405(g). Substantial evidence




                                                  6
“is ‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Butler, 353 F.3d at 999 (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). A reviewing court in a substantial-evidence case must engage in “careful scrutiny of the

entire record,” Brown, 794 F.2d at 705 (internal citation omitted), but cannot “re-weigh the

evidence and reach its own determination,” Maynor v. Heckler, 597 F. Supp. 457, 460 (D.D.C.

1984).

                                           III.   ANALYSIS

   A. 2007 Application

         In his 2014 suit, Workman argued that the ALJ’s decision on his 2007 Application was

unsupported by substantial evidence because the ALJ failed to give Workman’s treating

physicians’ opinions appropriate controlling weight. This court agreed:

         The Administrative Record shows that Doctors King and Manning directly treated
         Plaintiff, and under our Circuit’s treating physician rule, “[a] treating physician’s
         report is ‘binding on the fact-finder unless contradicted by substantial evidence.’”
         Butler, 353 F.3d at 1003 (citing Williams v. Shalala, 997 F.2d 1494, 1498 (D.C.
         Cir. 1993)). An ALJ who rejects a treating physician’s opinion must explain his or
         her reason for doing so. Id. Here, the ALJ failed to give the treating physicians’
         reports the weight to which they were entitled with regard to Plaintiff’s trigger
         fingers, and the court agrees with Judge Kay’s finding that the ALJ’s decision was
         not supported by substantial evidence.

         Memorandum Opinion at 6, Workman v. Colvin, 14-cv-438.

         On remand, the ALJ found that Workman was not disabled under the Social Security Act

and denied his 2007 Application. Workman argues the ALJ erred by failing to comply with this

court’s 2016 order regarding the weight to give Workman’s treating physicians’ opinions. (Pl.

Br. at 14–17.) The court agrees with Workman; on remand, the ALJ disregarded the court’s

order and again discounted the reports of Workman’s treating physicians, giving both Dr.




                                                  7
Manning and Dr. King’s assessment of Workman’s trigger fingers “little weight.” (AR at 793–

94.)

       Defendant essentially argues that it does not matter what weight the treating physicians’

reports were given because the ALJ found that Workman’s trigger fingers were a severe

impairment and factored that finding into the residual functional capacity analysis. (Def. Br. at

12.) Defendant emphasizes that because the court did not order a finding of disability on

remand, the ALJ’s findings should be affirmed. (Id.) Defendant’s arguments are unavailing.

“Deviation from the court’s remand order in the subsequent administrative proceedings is itself

legal error, subject to reversal on further judicial review.” Sullivan v. Hudson, 490 U.S. 877, 886

(1989). After refusing to give controlling weight to Workman’s treating physicians’ reports, the

ALJ concluded that Workman could “frequently reach[] and handl[e].” (AR at 794.) But Dr.

King specifically explained that Workman’s trigger fingers prevent him from doing jobs

requiring sustained handling, holding, fingering, or other fine manipulation. (AR at 714–15.)

Therefore, the ALJ’s assessment of Workman’s residual functional capacity and limitations were

affected by their failure to give controlling weight to Workman’s treating physicians’ reports.

Moreover, at Step 5, the few occupations for which the ALJ found Workman capable all required

frequent reaching and handling, and frequent or occasional fingering, tasks which Workman’s

treating physicians said he cannot perform. (AR at 798.)

       Despite the ALJ’s disregard of the court’s directive, this court, given its limited role in

review, cannot make the necessary findings of fact. Therefore, it must again remand the case for

the ALJ to give the proper controlling weight to the treating physicians’ reports, and, applying

that standard, to make findings of fact.




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        Workman argues that the court should go further and reverse for award of benefits. (Pl.

Br. at 19-20.) But, as this court previously held, the record does not clearly show that Workman

is disabled. Memorandum Opinion at 6–7, Workman v. Colvin, 14-cv-438. The court is,

however, concerned by the length of time Workman has been waiting for a lawful decision, as

well as what appears to be the ALJ’s willful disregard of this court’s order. Indeed, the last three

years of litigation have been pointless, as the court is essentially re-ordering the same relief today

that it did over three years ago. Accordingly, the agency is ordered to expedite Workman’s case

on remand. And, contrary to Defendants’ contention, the agency needs no additional facts from

Workman in order to decide on his disability. The period of review for the 2007 Application

ended December 27, 2013—the date Workman filed his 2013 Application. Soc. Sec. Admin.,

Hearings, Appeals and Litigation Law Manual, I-1-10-50(F) (2017) (“HALLEX”); see also (AR

913).

        On remand, the Commissioner must account for Workman’s treating physician’s

opinions and grant them controlling weight, as previously ordered by this court. The

Commissioner must then make further factual findings regarding Workman’s residual functional

capacity, and whether and to what extent his ability to work is impacted by his trigger fingers.

   B. 2013 Application

        On remand, with no directive to do so, the ALJ also re-opened Workman’s 2013

Application and reversed the award of benefits. Neither of the bases described in the ALJ’s

decision support this course of action.

        The ALJ first found that this court remanded the 2013 Application and therefore the

agency had the authority to revisit the award of benefits. (AR 779.) The ALJ explained that

“Magistrate Kay specifically acknowledged the existence [of] the DDS determination on the




                                                  9
subapp [the 2013 Application], but declined to recommend affirming or reversing it, and the

district court, in concurring with Magistrate Kay’s recommendation concluded that, ‘based on

the record before it, the ALJ could still find that substantial evidence does not support a finding

of disability.’” (Id.) The ALJ further explained that, in the Appeals Council’s remand order to

the ALJ, it did not affirm or reopen the determination on the 2013 Application. (Id.) Therefore,

the ALJ concluded, “[i]t is thus clear that the DDS determination on the subapp is subject to my

review.” (Id.) The ALJ went on to note that the Appeals Council’s remand order was

“somewhat ambiguous” as to whether the DDS’s determination on the 2013 Application was

binding. (Id. at 780.) The ALJ decided, however, that the Appeals Council was “performing

[the] ministerial task of remanding the case pursuant to the court’s decision” and, therefore, it

was “clear” that “the DDS determination on the subapp is fully subject to my review since it has

not been affirmed by the court, which it could have done.” (Id.)

       The ALJ’s analysis and conclusion was based on an incorrect reading of the record. The

court declines to speculate on whether that misreading was inadvertent or deliberate, but is

nonetheless concerned about the ALJ’s reasoning. No action was ever filed in this court

regarding the final decision on Workman’s 2013 Application, and all references to the 2013

Application in this court’s opinion and Magistrate Judge Kay’s Report and Recommendation

were in the context of the facts and procedural history of Workman’s applications. Indeed, the

administrative record on the 2013 Application was not before this court during its review of the

2007 Application. Because the court was never asked to review the 2013 Application, it could

not have, and did not, remand the decision on that application. See Rivera v. Astrue, No. 07-cv-

1912, 2008 WL 3285850, at *18 (D.N.J. Aug. 8, 2008).




                                                 10
       The ALJ’s second basis for reopening the 2013 Application was that Workman

committed “similar fault” in obtaining the decision from DDS because of discrepancies in his

description of past work at a grocery store. (AR at 782.) Under 20 C.F.R. § 416.1488, a

decision can be reopened at any time if the result was obtained by “fraud or similar fault.” 20

C.F.R. § 416.1488(c). 1 Fraud requires intent to defraud while “similar fault occurs when a

person . . . knowingly makes an incorrect or incomplete statement that is material to the

determination or decision or knowingly conceals information that is material to the determination

or decision.” HALLEX I-1-3-15(b)(2).

       The ALJ found that Workman committed similar fault because he “initially reported that

he worked as a cashier at Safeway lifting up to 25 pounds, but subsequently characterized the

work as mostly a cleaner and stocker lifting up to 100 pounds. Based on this discrepancy, the

ALJ in the first hearing decision dated June 11, 2010, found that the claimant could do his past

work as a cashier, but the DDS’s determination on the subapp found the claimant could not do

his past relevant work.” (AR at 782.) Therefore, the ALJ decided that, under the preponderance

of the evidence standard, Workman “committed ‘similar fault’ that resulted in the DDS finding

him disabled” and reopened the 2013 Application. (Id.) After reopening the application, the

ALJ further found that Workman was not entitled to SSI and reversed DDS’s award of benefits

to him. (Id.)

       The ALJ’s conclusion that Workman committed “similar fault” is not supported by

substantial evidence. For the ALJ to find that Workman committed similar fault under 20 C.F.R.

§ 416.1488(c), the ALJ must find that the “discrepancy” between Workman’s statements about




1
 The other two bases for reopening are inapplicable because the initial determination was more
than two years before the reopening. See 20 C.F.R. § 416.1488(a)-(b).


                                                11
his work for Safeway was due to Workman “knowingly” making “incomplete or incorrect”

statements or “knowingly conceal[ing] information.” The ALJ did not make such a finding, and

their conclusory restatement of the elements of similar fault do not support such a finding. (AR

at 782.) Further, the ALJ’s stray comment that the difference in Workman’s statements about his

work at Safeway was “self-serving,” (AR at 796), is not evidence of or a finding that Workman’s

descriptions of his work at Safeway were “knowingly incomplete or incorrect.”

       Because the ALJ’s reopening of the 2013 Application was an error of law and

unsupported by substantial evidence, this court will reverse and remand for payment of benefits

based on DDS’s prior determination.

                                      IV.     CONCLUSION

       With respect to Workman’s application for supplemental security income benefits filed

on December 27, 2013, the court will reverse and remand for award of benefits. With respect to

Workman’s application for disability insurance benefits and supplemental security income

benefits filed on December 20, 2007, the court will reverse and remand for further proceedings

consistent with this opinion. The court will, therefore, GRANT in part and DENY in part

Plaintiff’s motion for judgment of reversal, or in the alternative, remand. Accordingly, the court

will GRANT in part and DENY in part Defendant’s motion for remand. A corresponding Order

will issue separately.


Date: January 27, 2020


                                             Tanya S. Chutkan
                                             TANYA S. CHUTKAN
                                             United States District Judge




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