BROYLES v. BARNHART

Filing 14

MEMORANDUM OPINION denying the motion 8 for reversal, and granting the Commissioner's motion 11 for affirmance. Signed by Judge Richard W. Roberts on 12/18/2012. (DCL)

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

1

Pl.’s Mem. in
She has a

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

-2college 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.

-3In 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.
195.

Id. at

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

-4difficulties 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

-5employment,” 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

-7severity 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

-8in 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

-9Commissioner 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.”
§ 405(g).

42 U.S.C.

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.”
F.3d at 999.

Butler, 353

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

-10were supported by substantial evidence, the court “may not reweigh 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.”
§ 404.1525(a).

20 C.F.R.

-11Broyles 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.
at 6.

Pl.’s Mem.

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.”
Section 12.04.

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

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

-12b. 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).

-13Broyles’ 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

-14Brown 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.”
Supp. 2d at 109 (internal quotation omitted).

Turner, 710 F.
“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

-1530 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

-16Functional 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

-17ability 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.
20.

Id. at

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