Henderson v. Berryhill ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL HENDERSON,
Plaintiff,
v.
Civil Action No. 17-2846 (CKK)
ANDREW SAUL, Commissioner of
Social Security, 1
Defendant.
MEMORANDUM OPINION
(October 28, 2019)
Plaintiff Michael Henderson brings this suit seeking review of Defendant Commissioner
Andrew Saul’s final administrative decision denying his claim for Supplemental Security Income
(“SSI”) pursuant to 42 U.S.C. § 405(g). Pending before the Court are Mr. Henderson’s Motion for
Judgment of Reversal, ECF No. 14, and the Commissioner’s Motion for Judgment of Affirmance
and Opposition to Plaintiff’s Motion for Judgment of Reversal, ECF No. 15. Upon consideration
of the briefing, 2 the administrative record, and the relevant legal authorities, the Court shall
1
Pursuant to Federal Rule of Civil Procedure 25(d), Andrew Saul is substituted as Defendant for
former Acting Commissioner Nancy A. Berryhill.
2
The Court’s consideration has focused on the following documents:
• Plaintiff’s Brief in Support of Motion for Judgment of Reversal (“Pl.’s Mot.”), ECF No.
14-1;
• Defendant’s Memorandum in Support of Her Motion for Judgment of Affirmance and in
Opposition to Plaintiff’s Motion for Judgment of Reversal (“Def.’s Combined Mem. and
Opp’n”), ECF No. 15; and
• Plaintiff’s Reply Brief in Support of Motion for Judgment of Reversal (“Pl.’s Reply”), ECF
No. 17.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not
be of assistance in rendering a decision. See LCvR 7(f).
1
GRANT IN PART and DENY IN PART Mr. Henderson’s Motion for Judgment of Reversal and
GRANT IN PART and DENY IN PART the Commissioner’s Motion for Judgment of
Affirmance.
I. BACKGROUND
Mr. Henderson petitioned the Social Security Administration for SSI on April 25, 2013.
Pl.’s Mot. at 1; Administrative Record (“A.R.”) ECF No. 11, at 70, 82. To qualify for SSI, a
claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment” coupled with an inability to “engage
in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(1)–(2). By satisfying both conditions, a claimant is “disabled” for the purposes of the
Social Security Act. To decide whether a claimant has proven he is disabled, the ALJ must use a
five-step sequential analysis. 20 C.F.R. §§ 404.1520, 416.920. The ALJ determines (1) the
claimant’s current work activity, (2) the severity of his impairments, (3) whether the impairments
meet or equal listed impairments, (4) if not, whether the impairment prevents the claimant from
doing past work, and (5) whether the impairment prevents him from doing other work upon
consideration of the claimant’s residual functional capacity (“RFC”), age, education, and past work
experience. See 20 C.F.R. §§ 404.1520, 416.920; Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir.
2004). The claimant carries the burden on the first four steps, but the burden shifts to the agency
on step five. Butler, 353 F.3d at 997 (citing 20 C.F.R. §§ 404.1520, 416.920).
In his application for SSI, Mr. Henderson alleged that his disabilities included diabetes,
lung cancer, and various issues with his kidneys and back. A.R. at 70, 82. He was forty-eight and
2
a resident of Washington, D.C. at the time. 3 Id. His claim was initially denied on February 18,
2014. Id. at 80 (“While you are not capable of performing work you have done in the past, you
are able to perform work that is less demanding.”); Pl.’s Mot. at 1 (noting denial). It was denied
again upon reconsideration on July 31, 2014. A.R. at 97 (“We have determined that your condition
is not severe enough to keep you from working. . . . we have determined that you can adjust to
other work.”); Pl.’s Mot. at 1–2 (noting denial). Following these denials, Mr. Henderson requested
a hearing before an Administrative Law Judge (“ALJ”). Pl.’s Mot. at 2; A.R. at 124.
The records also indicate that several physicians and a mental health specialist evaluated
Mr. Henderson during the period of alleged disability. Three of those examiners are most relevant
to Mr. Henderson’s arguments: Dr. Rebecca Brosch, Dr. Elliot Aleskow, and Dr. Joel Taubin. First,
Dr. Brosch, Psy.D., evaluated Mr. Henderson on July 22, 2014. A.R. at 487. Her evaluation notes
included what Mr. Henderson told her, her own observations, and her ultimate medical source
statement. A.R. at 487–92. To begin with, she explained that Mr. Henderson told her that it was
a “recurring pattern for him” to be “fired or laid off from almost all of his jobs” because of “his
inability to control his temper” and being generally aggressive toward others. Id. at 487. Mr.
Henderson reported “significant anger and aggression, impulsivity, [and] inability to control his
temper,” as well as “paranoid ideation,” which resulted in him “lashing out at others.” Id. at 488.
During the evaluation, he presented as “irritable, suspicious, and distressed,” and he had difficulty
relating or making eye contact. Id. at 489. His speech was “[f]luent and clear” and he had
“[g]enerally coherent and goal directed” thought processes, although he “presented as somewhat
paranoid.” Id. Mr. Henderson exhibited “emotional distress, anxiety, and nervousness” in his
3
When he first petitioned for SSI, Mr. Henderson contended that his impairments rendered him
unable to work effective December 31, 2009. A.R. at 70. He later altered the onset date to
February 1, 2012 at his hearing. A.R. at 13, 35.
3
evaluation and was “tearful throughout a significant portion of the evaluation.” Id. at 490.
Consequently, Dr. Brosch thought his attention and concentration skills were impaired. Id.Dr. Brosch ultimately opined that Mr. Henderson “appear[ed] to be able to follow and
understand simple directions.” Id. at 490–91. She also outlined her other findings:
Mild to moderately limited in his ability to perform simple tasks. Moderately
limited in his ability to maintain attention and concentration. He appears to be able
to maintain a schedule. Mild to moderately limited in his ability to learn new tasks.
Moderate to markedly limited in his ability to perform complex tasks
independently. Markedly limited in his ability to make appropriate decisions, relate
adequately with others, and appropriately deal with stress. His difficulties are
caused by mood disturbance, impulse control problems, anger management
difficulties, impulsivity, and paranoid ideation.
Id. at 491. She explained that these issues “may significantly interfere with the claimant’s ability
to function on a daily basis.” Id.Second, Dr. Aleskow, M.D., evaluated Mr. Henderson on November 25, 2013. A.R. at 443.
Dr. Aleskow’s evaluation focused on what Mr. Henderson reported, rather than on his own
opinions. See A.R. at 443–45. Among other things, Dr. Aleskow noted that Mr. Henderson
complained of “tingling and numbness in his hands and feet,” which led to him sometimes having
“difficulty handling and carrying objects because of the numbness.” Id. at 443. Mr. Henderson
told Dr. Aleskow that he had “intermittent resting tremors.” Id. Dr. Aleskow’s examination also
revealed that Mr. Henderson had “a resting tremor,” which was “worse on the right than the left,”
and that he had “4/5 hand grip strength bilaterally, but had some difficulties with fine motor skills
in both hands.” Id. at 444–45. Dr. Aleskow’s final discussion further stated that Mr. Henderson
had “a tremor of unknown etiology.” Id. at 445.
Third, Dr. Taubin, M.D., evaluated Mr. Henderson on January 23, 2014. A.R. at 452. Dr.
Taubin similarly noted that Mr. Henderson had “a fine tremor of his right hand” and that his right
hand was “tremulous,” leading to “difficulty writing with the hand.” Id. at 454. According to Dr.
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Taubin, Mr. Henderson had “3/5 [grip] on the right and 5/5 on he left.” Id. He also stated, however,
that Mr. Henderson “wrote his name on the card with no difficulty.” Id. In his final impressions,
Dr. Taubin explained that Mr. Henderson had a “[t]remor of the right hand” and a “[h]istory of a
tremor.” Id. at 455. He concluded that Mr. Henderson could not “use fine dexterity because of
[the] tremor of his right hand.” Id.Following his evaluations and the previous denial of his claim, Mr. Henderson’s video
hearing occurred on June 28, 2016. A.R. at 13; Pl.’s Mot. at 2. At the hearing, Mr. Henderson was
represented by counsel and a vocational expert (“VE”), Patricia L. Chilleri, testified. A.R. at 13,
31–32, 53. The VE did not provide any pre-hearing report. Pl.’s Mot. at 17 n.7. Counsel for Mr.
Henderson objected to the VE testifying, alleging that she lacked qualifications. A.R. at 54. When
questioned about what other work Mr. Henderson could perform, the VE referenced jobs as
described in the Dictionary of Titles (“DOT”) and provided national numbers for those jobs. Id.
at 57. She identified three jobs in particular: weigher, checker, and measurer (sample DOT code
299.587-010) with approximately 24,400 jobs nationwide; sorter, sampler, tester, and inspector
(sample DOT code 789.687-146) with approximately 16,500 jobs nationwide; and billing, packing,
and wrapping worker (sample DOT code 920.687-138) with approximately 19,300 jobs
nationwide. Id.The ALJ did not question the methodology by which the VE determined the job numbers
provided. See id. at 54–58. Counsel for Mr. Henderson did question how the VE determined those
job numbers:
Q Okay and what methodology or process did you use to reach the conclusions
of the number of jobs available in the national economy for the sample jobs
you presented today?
A Well, I use government publications, starting with the DOT and
supplements and then work with the Bureau of Research and Statistics and
the Labor Market Analysts in obtaining information from the American
5
Community Survey and the Long Term Occupational Employment
Projections and I also utilize source[s] such as SkillTRAN and the
Northeast—the Northern American Occupational System and
Classification.
Id. at 60. 4 Counsel for Mr. Henderson concluded by requesting that the record be left open to
submit a post-hearing brief. 5 The ALJ granted that request and left the record open for an
additional fourteen days. Id. at 61–62.
Mr. Henderson subsequently submitted an eight-page post-hearing brief with objections to
the VE’s testimony. See id. at 252–60. In addition to objecting to the VE’s qualifications again,
the brief detailed other objections, most of which appeared to argue that the VE’s testimony was
unreliable for numerous reasons. First, Mr. Henderson contended that some of the resources used
by the VE were not reliable government publications, which can be administratively noticed by
the ALJ, and were instead private programs or resources. Id. at 252–53. Moreover, Mr. Henderson
explained, because the DOT has not been updated in decades, there is no reliable or consistent way
to translate current job data from the Department of Labor and U.S. Census Bureau to the DOT
titles. Id. at 253. As the VE did not explain which programs from SkillTRAN she used, Mr.
Henderson listed objections to all three commercially available programs: Job Browser Pro,
Occubrowse, and OASYS. Id. at 253–57. He additionally objected on the basis that the jobs
discussed at the hearing are no longer performed at the unskilled level identified by the VE, and
because those same jobs required more social interaction than identified by the VE. Id. at 257–59.
Lastly, he objected to a decision being made without an additional hearing to address these
questions raised about the VE’s testimony. Id. at 259.
4
The original transcript used underlined text to describe some of the sources. The Court has
omitted this formatting here.
5
This request was also included in the pre-hearing brief that Mr. Henderson submitted. A.R. at
247 (requesting thirty days). The pre-hearing brief explained that the request was related to
researching and responding to any VE testimony. Id.6
The ALJ issued a decision that denied Mr. Henderson’s claim for benefits on October 26,
2016. Id. at 13–23. Before beginning the five-step analysis, the ALJ addressed some of Mr.
Henderson’s objections. Id. at 13. First, the ALJ overruled his “objection to the vocational
expert’s testimony regarding jobs numbers and the expert’s methodology in determining jobs
numbers.” Id. He explained that:
Social Security Administration regulation requires the undersigned to take
administrative notice of reliable job information available from various
publications, including the [DOT] and other government sources, used by the
vocational expert in this case (SSR 00-4p; 20 C.F.R. 404.1566(d) and 416.966(d)).
Moreover, the Social Security Administration uses vocational experts because they
are qualified to resolve complex vocational issues, such as testifying about the
number of jobs available in the national economy from information produced by
the Bureau of Labor Statistics. The undersigned relies on Social Security
regulations 20 C.F.R. 404.1560(b)(2), 404.1566(d), and 416.966(d) and takes
administrative notice of this job data.
Id. The ALJ further overruled Mr. Henderson’s objection that, in the decision’s language, “the
jobs identified by the vocational expert at the hearing are no longer available.” Id. The ALJ
emphasized that he took “administrative notice of the reliable job information available” in the
DOT and in “one or more of the publications identified in” the regulations as “reliable sources”
that were relied upon by the VE. Id. at 14. Lastly, the ALJ denied Mr. Henderson’s request for a
supplemental hearing because his “representative had ample opportunity to question the vocational
expert at the hearing.” Id.After addressing the objections, the decision laid out the ALJ’s findings. First, the ALJ
found that Mr. Henderson had not been engaged in substantial gainful activity since his application
date. Id. at 16. Next, the ALJ found that Mr. Henderson had several severe impairments: “chronic
obstructive pulmonary disease[] (‘COPD’), diabetes mellitus, diabetic neuropathy, obesity,
hypertension, lumbar radiculopathy, and affective disorder.” Id. Then, the ALJ found that Mr.
Henderson did not have any impairment or combination of impairments that met “the severity of
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one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d),
416.925 and 416.926).” Id. The ALJ made several specific relevant findings here. With respect
to Mr. Henderson’s physical health, the ALJ did not address at this step the tremors that the
consultative physicians described. See id. at 16–17. Instead, the ALJ concluded that Mr.
Henderson had a “mild restriction” in the “activities of daily living” based on his daily activities.
Id. at 17. The ALJ further found that Mr. Henderson had moderate difficulties with social
functioning and moderate difficulties with “concentration, persistence or pace.” Id.In determining Mr. Henderson’s RFC, the ALJ found that Mr. Henderson had “the [RFC]
to perform light work,” except that he “must avoid unprotected heights and dangerous machinery.”
Id. at 18. Mr. Henderson could “frequently use his bilateral hands for fine manipulation and gross
handling” and was “limited to simple, routine tasks, with a specific vocational preparation of 2 or
below, with few workplace changes.” Id. Additionally, the ALJ concluded that Mr. Henderson
could “have occasional interaction with co-workers and supervisors, but [could] never interact
with the general public” and “should not engage in any tandem, team, or group work activity.” Id.The ALJ detailed his findings, some of which are relevant here. To begin with, in
discussing Mr. Henderson’s affective disorder and mental health, he noted that Mr. Henderson had
“never received any mental health treatment and is not taking any mental health medication, which
is inconsistent with his allegations and suggests that his symptoms may not be as severe as has
been alleged.” Id. at 20. The ALJ outlined the ultimate findings of consultative examiner Rebecca
Brosch, PsyD, and concluded that “[t]he undersigned has accounted for any possible limitations
resulting from the claimant’s affective disorder in his residual functional capacity.” Id.Next, the ALJ proceeded to explain the weight given to various medical opinions. Id. at
20–222. In particular, he gave “little weight to the opinion of the consultative examiner, Dr. Joel
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Taubin,” who had opined that Mr. Henderson could not “use fine dexterity because of tremor of
his right hand.” Id. at 21. The ALJ also explained that he gave “substantial weight to the opinion
of consultative examiner, Dr. Rebecca Brosch, that the claimant appear[ed] to be able to follow
and understand simple instructions.” Id. While the ALJ referenced consultative physician Dr.
Aleskow’s report throughout his decision, he did not detail all of Dr. Aleskow’s report or explicitly
explain what weight he had given his opinion in particular. See, e.g., id. at 19 (mentioning what
Mr. Henderson told Dr. Aleskow regarding abilities abilities).
At steps four and five, the ALJ found that Mr. Henderson was unable to perform any past
relevant work, but that there were “jobs that exist in significant numbers in the national economy
that” he could perform. Id. at 22. In his step five discussion, the ALJ listed the three representative
occupations provided by the VE at the hearing and quoted the jobs numbers provided by the VE.
Id. at 23. The ALJ wholly relied on the testimony of the VE in determining whether Mr. Henderson
could perform other jobs that exist in significant numbers nationally. Id.Mr. Henderson sought review of the ALJ’s determination by the Appeals Council, which
found no basis to grant the request for review. A.R. at 1–5. Having exhausted his administrative
remedies, Mr. Henderson has brought this action seeking judicial review.
II. LEGAL STANDARD
The Social Security Act defines “disability” as an “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.” 42 U.S.C. § 423(d)(1)(A). Inability to engage in substantial gainful
activity not only includes the individual’s inability to do his previous work, but also requires as
well an inability, “considering his age, education, and work experience, [to] engage in any other
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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). In making this
determination through the previously outlined five-step process, the ALJ is to consider medical
data and findings; expert medical opinions; subjective complaints; and the claimant’s age,
education, and work history. See Davis v. Heckler, 566 F. Supp. 1193, 1196 (D.D.C. 1983).
On judicial review, “[t]he findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §§ 405(g). Under the
substantial evidence standard, a court considers whether there is sufficient evidence in the
administrative record to support the Commissioner’s factual determinations. Substantial evidence
is “‘more than mere scintilla’” and means only “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The test can be
satisfied by “something less than a preponderance of the evidence.” Fla. Mun. Power Agency v.
FERC, 315 F.3d 362, 366 (D.C. Cir. 2003). In reviewing an administrative decision, a court may
not determine the weight of the evidence, nor can it substitute its judgment for that of the Secretary
if his decision is based on substantial evidence. Butler, 353 F.3d at 999; Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). Instead, the reviewing court must carefully scrutinize the entire record
to determine whether the Secretary, acting through the ALJ, has analyzed all the evidence and has
sufficiently explained the weight he has given to obviously probative material. Butler, 353 F.3d at
999; Hays, 907 F.2d at 1456. “Because the broad purposes of the Social Security Act require a
liberal construction in favor of disability, the court must view the evidence in the light most
favorable to the claimant.” Martin v. Apfel, 118 F. Supp. 2d 9, 13 (D.D.C. 2000).
10
The reviewing court must also determine whether credible evidence was properly
considered by the ALJ. Id. The ALJ’s final decision must contain a statement of “findings and
conclusions, and the reasons or the basis therefor, on all the material issues of fact, law, or
discretion presented on the record.” 5 U.S.C. § 557(c). An ALJ cannot merely disregard evidence
that does not support his conclusion. See Dionne v. Heckler, 585 F. Supp. 1055, 1060 (D. Maine
1984). A reviewing court should not be left guessing as to how the ALJ evaluated probative
material and it is reversible error for an ALJ to fail in his written decision to explain sufficiently
the weight he has given to certain probative items of evidence. Martin, 118 F. Supp. 2d at 13. In
short, the ALJ must “build an accurate and logical bridge from the evidence to [his] conclusion so
that, as a reviewing court, we may assess the validity of the agency’s ultimate findings and afford
a claimant meaningful judicial review.” Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 67 (D.D.C.
2006) (internal quotation marks omitted) (quoting Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir.
2002)).
III. DISCUSSION
Mr. Henderson advances three grounds on which the ALJ’s decision should be reversed
and remanded for further administrative proceedings. First, he contends that the ALJ erred either
by not meaningfully addressing Mr. Henderson’s post-hearing objections or explaining his reliance
on the VE’s testimony. Pl.’s Mot. at 4–17. Second, he claims that the ALJ did not properly weigh
the opinion of consultative examiner Dr. Brosch. Id. at 19–24. Lastly, he argues that the ALJ erred
by not making any findings regarding Mr. Henderson’s tremors at step two and by insufficiently
addressing Dr. Taubin’s and Dr. Aleskow’s opinions regarding his tremors. Id. at 24–28.
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A. The ALJ’s Failure to Explain His Reliance on the Vocational Expert and Address Mr.
Henderson’s Objections
Mr. Henderson’s first argument, which concerns the ALJ’s response to his objections,
breaks down into two distinct arguments. First, he argues that the ALJ made a procedural error in
insufficiently addressing Mr. Henderson’s objections in the ultimate decision. He suggests that he
is owed procedural due process and that the process owed to him is embedded in the agency’s own
manual, which required that the agency respond to all objections raised. See, e.g., id. at 4 (“[The
ALJ] still erred by failing to address potentially outcome-determinative objections to the testimony
of the vocational expert before relying on this testimony to deny benefits.”); id. at 9 (“Again,
Plaintiff’s assignment of error is that the ALJ was required to substantively address his objections
(because, as Plaintiff explains next it is facially relevant to the ALJ’s step 5 burden) and did not.”).
Second, he alternatively contends that the ALJ’s failure to address his objections and his
summary reliance on the VE’s testimony in the face of those objections precludes meaningful
judicial review. See, e.g., id. at 5 (explaining that alleged error “require[es] remand because it
undermines the ALJ’s step 5 finding that there is other work the claimant can do, and effectively
precludes meaningful judicial review”); id. at 13–14 (outlining how ALJ did not explain whether
VE testimony was reliable in response to objections calling into question reliability); id. at 17
(“Ultimately, the ALJ’s failure to properly address an outcome-determinative objection to the VE’s
testimony precludes meaningful judicial review as to whether the ALJ’s step 5 finding is supported
by substantial evidence.”).
The Court agrees with Mr. Henderson that the ALJ’s treatment of his objections, and his
summary reliance on the VE’s testimony despite those objections, precludes meaningful review.
12
The Court therefore does not reach Mr. Henderson’s procedural due process argument. 6
The ALJ plays an important role in the disability determination process. “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.’” Simms v.
Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (quoting Diabo v. Sec’y of HEW, 627 F.2d 278,
281 (D.C. Cir. 1980)). An ALJ may “receive evidence” and “examine witnesses” about contested
issues in a hearing and may even receive evidence that “would not be admissible in court.”
42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A); 20 C.F.R. §§ 404.950(c), 416.1450(c). In other words, the
ALJ serves as “an examiner charged with developing the facts,” Richardson v. Perales, 402 U.S.
389, 410 (1971), and he has a duty to “develop the arguments both for and against granting
benefits,” Sims v. Apfel, 530 U.S. 103, 111 (2000).
This carries over into step five of the sequential analysis, in which the agency has the
burden “to demonstrate that the claimant is able to perform ‘other work’ based on a consideration
of [his] ‘residual functional capacity’ (RFC), age, education and past work experience.” Butler,
6
The Commissioner argues that Mr. Henderson’s objections were waived because they were not
raised at the hearing, only in the post-hearing briefing. Because this Court decides the case on the
basis that the ALJ failed to provide sufficient reasoning on step five, the Court does not reach this
argument. However, it is worth noting that it is far from clear that the objections were waived, as
the ALJ specifically allowed the record to stay open for post-hearing briefing and further ruled on
at least some of the objections in his decision. The cases cited by the Commissioner do not suggest
otherwise. In each of those cases, there was no attempt by the claimant’s representative to preserve
any objections by asking to leave the record open and neither did the ALJ rule on the objections at
issue. See Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (explaining that claimant raised
issue for first time in reply brief); Hammond v. Chater, 116 F.3d 1480 (Table), at *3 (6th Cir.
1997) (noting that plaintiff did not raise issue at hearing); Harris v. Comm’r of Soc. Sec. Admin.,
No. 1:11-CV-1290, 2012 WL 4434078, at *3–*4 (N.D. Ohio Sept. 24, 2012) (explaining that
plaintiff waived argument by not raising it during hearing at all).
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353 F.3d at 997; see 20 C.F.R. §§ 404.1520(f), 416.920(f). As part of this determination, the ALJ
can “take administrative notice of reliable job information available from various governmental
and other publications,” including the DOT. 20 C.F.R. § 404.1566(d) (emphasis added). For
guidance on whether jobs exist in the national economy, “ALJs often seek the views of ‘vocational
experts,’” who are “professionals under contract with SSA to provide impartial testimony in
agency proceedings.” Biestek, 139 S. Ct. at 1152 (internal quotation marks omitted); see 20 C.F.R.
§§ 404.1560(b), 404.1566(e), 416.966(e); SSR 00-4p. The evidence presented by VEs can include
information from outside the DOT, including “other reliable publications, information obtained
directly from employers, or from a VE’s or VS’s experience in job placement or career
counseling.” SSR 00-4p.
On review, however, the ALJ’s reliance on such an expert must still clear the substantial
evidence standard, which is determined on a case-by-case basis. See Biestek, 139 S. Ct. at 1157(finding that vocational expert’s withholding of documentary basis for opinion may sometimes
“prevent [such] testimony from qualifying as substantial evidence” and noting that this inquiry is
“case-by-case”); Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (explaining that
testimony from vocational expert is not substantial if it is not reliable and is “conjured out of whole
cloth”). And “with regard to an ALJ’s reasoning the Court may only consider the grounds
proffered by the agency in its decision” and can neither credit “post hoc rationalizations” offered
by the parties nor weigh the evidence for itself. Settles v. Colvin, 121 F. Supp. 3d 163, 169–70
(D.D.C. 2015) (internal quotation marks omitted) (quoting Espinosa v. Colvin, 953 F. Supp. 2d 25,
33 (D.D.C. 2013); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] simple but
fundamental rule of administrative law . . . is to the effect that a reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to make, must judge
14
the propriety of such action solely by the grounds invoked by the agency.”); Clark v. Astrue, 826 F.
Supp. 2d 13, 20 (D.D.C. 2011) (“[A] court may only consider the grounds proffered by the agency
in its decision, as post hoc rationalizations will not suffice.”). Accordingly, the ALJ must build
“an accurate and logical bridge from the evidence to [his] conclusion” to afford a reviewing court
the opportunity to provide the claimant with “meaningful judicial review.” Lane-Rauth, 437 F.
Supp. 2d at 67 (internal quotation marks omitted) (quoting Scott, 297 F.3d at 595).
In light of the objections raised by Mr. Henderson, the decision failed to meet this standard.
While the ALJ does not necessarily have an affirmative duty to question every VE regarding her
methodology, objections by a claimant may call into question the reliability of a VE’s testimony.
See, e.g., Biestek, 139 S. Ct. at 1157; Lynch v. Astrue, 358 F. App’x 83, 88 (11th Cir. 2009);
Haskins-Scott v. Saul, No. 6:18-CV-975-ORL-CPT, 2019 WL 3956195, at *4 (M.D. Fla. Aug. 22,
2019); Courtney v. Berryhill, 385 F. Supp. 3d 761, 763–64 (W.D. Wis. 2018). That is the case
here: Mr. Henderson raised numerous detailed objections in his post-hearing brief that questioned
the reliability of the evidence relied upon by the VE and her methodology. See A.R. 252–60.
Although the merits of these objections are not before the Court, they appear to be thoroughly
researched concerns raised by the claimant about the VE’s methodology in determining jobs
numbers. See supra Part I (discussing objections in more depth). Despite these objections, the
ALJ relied on the VE’s testimony. Yet the ALJ neither explained his decision in any meaningful
way nor built a record to support that decision that would allow this Court to meaningfully review
it.
Overall, the decision’s treatment of Mr. Henderson’s objections was conclusory. Take, for
example, the objection that Mr. Henderson highlights in his Motion. He objected on the basis “that
the jobs named by the vocational expert are no longer performed as unskilled jobs.” Pl.’s Mot. at
15
11; see A.R. at 257. It is unclear whether the ALJ addressed this objection, as the decision does
not frame its rulings in those terms. Instead, the ALJ overruled the “objection that the jobs
identified by the vocational expert at the hearing are no longer available,” by which he may have
meant to overrule this objection. A.R. at 13. But Mr. Henderson did not make an objection fitting
that description. Either the ALJ overruled an objection that was not raised, misunderstood Mr.
Henderson’s objection, was imprecise in his ruling, or did not rule on that objection at all. Any of
these options precludes this Court from meaningfully reviewing both the ALJ’s overruling of Mr.
Henderson’s objections and the ALJ’s ultimate decision. 7 The same is true of Mr. Henderson’s
other objections, several of which also may have gone unaddressed by the ALJ. Compare A.R. at
252–60 (listing objections), with id. at 13–14 (appearing to address only two objections or
categories of objections).
The rest of the ALJ’s explanation of his reliance, especially in light of Mr. Henderson’s
objections, is also lacking. For instance, the ALJ was unclear as to which publications he noticed
other than the DOT. 8 See A.R. at 13–14, 22–23. He described them as “other government
7
The ALJ similarly overruled Mr. Henderson’s “objection to the vocational expert’s testimony
regarding jobs numbers and the expert’s methodology in determining jobs.” A.R. at 13. It is
possible based on these broad descriptions that the ALJ was trying to overrule Mr. Henderson’s
objection regarding the jobs’ skill levels (or overruling all his objections in this vein). But the fact
that it is unclear on the face of the decision whether the ALJ meant to overrule this objection is
problematic, as the Court consequently cannot say whether these decisions were based on
substantial evidence. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005)
(“In addition to relying on substantial evidence, the ALJ must also explain his analysis of the
evidence with enough detail and clarity to permit meaningful appellate review.”).
8
In addition, the ALJ explained that he was required “to take administrative notice of reliable job
information available” from the DOT. A.R. at 13. But it is unclear that the ALJ must take
administrative notice of information from the DOT. Other courts have found that reliance on or
taking administrative notice of the DOT and other similar government publications was not
supported by substantial evidence in certain circumstances because the DOT was outdated or
unreliable. See, e.g., Cunningham v. Astrue, 360 F. App’x 606, 615 (6th Cir. 2010) (explaining
that while Commissioner can take administrative notice of DOT, “common sense dictates that
when such descriptions appear obsolete, a more recent source of information should be
16
sources,” “this job data,” and “one or more of the publications identified by 20 C.F.R. 404.1566(d)
and 416.966(d),” but he never specified exactly which sources he was discussing. A.R. at 13–14.
This presents several issues. First, this lack of clarity on its own precludes the Court from
meaningfully reviewing the ALJ’s decision because it cannot determine whether the ALJ’s
decision was based on substantial evidence. See Freeman v. Astrue, 816 F. Supp. 2d 611, 615 (E.D.
Wis. 2011) (“An ALJ must minimally articulate his reasons for crediting or rejecting evidence of
disability build[ing] an accurate and logical bridge from the evidence to his conclusion.” (internal
quotation marks and citations omitted) (quoting Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.
2000))). Second, not all the job information provided by or relied upon by the VE was a
publication identified in the regulations. The VE testified that she uses information from the North
American Industry Classification Systems 9 and SkillTRAN, which are not government
publications listed in the regulations, and are thus not necessarily presumed to be reliable. A.R. at
60 (not describing these two resources as government publications); see 20 C.F.R. §§ 404.1566(d),
416.966(d). It is unclear to what extent the VE relied upon these sources in determining jobs
numbers as compared to solely government publications, but if the ALJ did in fact intend to
administratively notice this information, it is also uncertain on what basis he found that
information—and the VE’s methodology in using that information—reliable, which is similarly
problematic. See Sams v. Berryhill, No. 1:17CV15-CAS, 2017 WL 3974239, at *7 (N.D. Fla. Sept.
8, 2017) (“Reliability is the guiding star when considering job information relied on by the ALJ in
determining whether there are jobs in significant numbers in the national economy that the Plaintiff
can perform when the RFC is considered.”).
consulted”).
9
The VE referred to this as the “Northern American Occupational System and Classification.”
A.R. at 60.
17
In short, the ALJ failed to meaningfully explain why he relied on the VE despite Mr.
Henderson’s objections. Nor did he develop any record supporting his reliance in light of those
objections. Nothing in the record reflects that the ALJ consulted the VE on, for instance, the
resources upon which she relied or her methodology. In fact, he denied Mr. Henderson’s request
for a supplemental hearing to address the concerns raised in his objections. A.R. at 14. The ALJ,
however, must develop the record and adequately explain his reasoning to allow meaningful
review. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 970 (7th Cir. 2018) (“The ALJ needed to do
more than just ask questions; she needed to hold the VE to account for the reliability of his job-
number estimates.”), cert. denied, 139 S. Ct. 808 (2019); Cichocki v. Astrue, 729 F.3d 172, 177 (2d
Cir. 2013) (“Remand may be appropriate, however, where . . . inadequacies in the ALJ’s analysis
frustrate meaningful review.”); Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (“If a decision
‘lacks evidentiary support or is so poorly articulated as to prevent meaningful review,’ a remand is
required.” (quoting Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002))); Hanna v. Astrue, 395 F.
App’x 634, 636 (11th Cir. 2010) (“The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review.”); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1226 (9th Cir. 2009) (“[M]eaningful review of an administrative decision requires access to the
facts and reasons supporting that decision.”). This is especially the case on step five, where the
agency has the burden; to do otherwise would “effectively and impermissibly shift[] the burden”
to the claimant. Chavez, 895 F.3d at 970; see also Haddock v. Apfel, 196 F.3d 1084, 1090 (10th
Cir. 1999) (“To relieve the ALJ of the burden to thoroughly develop the vocational evidence at
step five would shift the burden to the claimant in the form of a requirement to cross-examine the
vocational expert.”).
In other circumstances, the ALJ’s decision to rely on a VE based solely on her expertise
18
may present no issue. See, e.g., Bryant v. Comm’r of Soc. Sec., 451 F. App’x 838, 839 (11th Cir.
2012) (“The Social Security regulations provide that an ALJ may rely on a VE’s knowledge and
expertise, and they do not require a VE produce detailed reports or statistics in support of her
testimony.”). But in this case, where there were on-the-record objections questioning the reliability
of the VE’s methodology, that decision effectively precludes meaningful judicial review.
Ultimately, the ALJ must develop the record and provide a sufficient bridge from the record to the
decision so that a reviewing court can determine whether his reliance on the VE was supported by
substantial evidence. Failure to do so is cause for remand. See Nunley v. Berryhill, No. CV H-17-
0072, 2018 WL 1167700, at *9 (S.D. Tex. Feb. 14, 2018) (recommending remand because ALJ
failed to “develop the record on the reliability of the VE’s testimony” or provide “specific findings
on the reliability of either SkillTRAN or the VE’s job-incidence testimony to fulfill the
Commissioner’s step-five burden”), report and recommendation adopted sub nom. Nunley v.
Colvin, No. CV H-17-00072, 2018 WL 1122679 (S.D. Tex. Mar. 1, 2018); Pedone v. Berryhill,
No. 16-CV-02767-STV, 2018 WL 460063, at *8 (D. Colo. Jan. 18, 2018) (finding that remand was
appropriate because ALJ failed to develop record by questioning VE about SkillTRAN’s reliability
based on post-hearing objections and further failed to provide sufficient reasoning for meaningful
review); Russell v. Berryhill, No. 16-CV-1251-JPG-CJP, 2017 WL 3704354, at *6 (S.D. Ill. Aug.
28, 2017) (remanding case because ALJ failed to develop record on why VE’s testimony was
reliable or provide reasoning in decision or response to claimant’s objections).
Because the ALJ failed to do so here, this case must be remanded for rehearing. The
Court’s remand is narrow and limited only to the step five analysis of whether there is other work
that Mr. Henderson could perform.
19
B. The ALJ’s Discussion of Dr. Brosch’s Opinion
Second, Mr. Henderson argues that the ALJ failed to properly account for portions of
consultative psychological examiner Dr. Brosch’s opinions. Pl.’s Mot. at 19–24. He contends that
the ALJ gave the opinion “substantial weight” but failed to include “numerous likely work-
preclusive limitations found by Dr. Brosch in his RFC finding.” Id. at 21. In response, the
Commissioner argues that the ALJ only gave substantial weight to Dr. Brosch’s opinion that Mr.
Henderson “could follow and understand simple directions” and that the ALJ was not required to
give weight to all of her opinions. Def.’s Combined Mem. and Opp’n at 16–17. Moreover, the
Commissioner contends that the RFC accounted for Dr. Brosch’s opinions. Id. at 17–19. The
Commissioner is correct.
As part of their duty to consider all the evidence in the record, ALJs must consider and
evaluate all medical opinions received based on several factors, including but not limited to the
examining relationship, treatment relationship, length of treatment relationship, frequency of
examination, nature and extent of the treatment relationship, supportability, and consistency with
the rest of the record. 20 C.F.R. § 416.927(b)–(d). 10 While “ALJs need not mention every piece
of evidence,” a “medical opinion from an examining consultative psychologist (like [Dr. Brosch])
is not just another piece of evidence.” Walters v. Astrue, 444 F. App’x 913, 917 (7th Cir. 2011).
The agency’s own regulations specify that ALJs “may not ignore these opinions and must explain
10
In his brief, Mr. Henderson cites the same provision to support his claim that the ALJ must
always give “good reasons” for the weight given to opinions. The specific standard referenced by
Mr. Henderson, however, applies only to treating sources, 20 C.F.R. § 416.927(c)(2), and is
inapplicable here because Dr. Brosch was not a treating source but instead a consultative examiner,
A.R. at 484–92. For the reasons given above, however, the ALJ still met the applicable standards
for Dr. Brosch’s opinions.
20
the weight given to these opinions in their decisions.” SSR 96-6p; 11 see Davis v. Berryhill, 272 F.
Supp. 3d 154, 174 (D.D.C. 2017); see also SSR 96-8p (“The RFC assessment must always
consider and address medical source opinions. If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the opinion was not adopted.”).
Unlike a treating physician’s opinions, a consultative examiner’s opinions, however, “are
not entitled to any presumption of weight and are therefore more easily rejected.” Johnson v.
Colvin, 197 F. Supp. 3d 60, 74 (D.D.C. 2016). And “the ALJ has no obligation to explicitly
enumerate each of the six factors described in the Social Security regulations” when discussing
the weight given to certain opinions. Grant v. Astrue, 857 F. Supp. 2d 146, 155 (D.D.C. 2012).
Nevertheless, “when there is reason to believe that an ALJ ignored important evidence—as when
an ALJ fails to discuss material, conflicting evidence—error exists.” Walters, 444 F. App’x at 917.
First, the ALJ sufficiently discussed the weight he gave to Dr. Brosch’s opinion. The main
portion of the decision discussing the weight given to her opinion reads:
The undersigned gives substantial weight to the opinion of the consultative
examiner, Dr. Rebecca Brosch, that the claimant appears to be able to follow and
understand simple directions (Exhibit 11F/7–8). Dr. Brosch also opined that the
claimant was mildly to moderately limited in his ability to perform simple tasks;
moderately limited in his ability to maintain attention and concentration; was able
to maintain a schedule; mildly to moderately limited in his ability to learn new
tasks; moderately to markedly limited in his ability to perform complex tasks
independently; moderately to markedly limited in his ability to make appropriate
decisions, relate adequately with others, and appropriately deal with stress (Exhibit
11F/7–8). Dr. Brosch’s opinion is generally consistent with the overall record and
gives the claimant the full benefit of the doubt regarding his mental health
allegations. Dr. Brosch is familiar with the Social Security program and had the
opportunity to conduct a clinical interview with the claimant prior to rendering her
opinion.
A.R. at 21. Mr. Henderson argues that the first half of the first sentence—“The undersigned gives
11
While SSR 96-6p was rescinded and replaced by SSR 17-2p as of March 27, 2017, it was
applicable in this case at the hearing and decision stage, as the hearing occurred on June 28, 2016
and the decision was dated October 26, 2016. A.R. at 13.
21
substantial weight to the opinion of the consultative examiner, Dr. Rebecca Brosch”—signifies
that the ALJ gave her overall opinion and all her findings substantial weight. Not so. The sentence
in full clarifies that the ALJ gave substantial weight to one particular opinion of Dr. Brosch: that
Mr. Henderson was “able to follow and understand simple directions.” Id. The ALJ was not
required to perform “an itemized evaluation” of each of Dr. Brosch’s findings. Hartline v. Astrue,
605 F. Supp. 2d 194, 207 (D.D.C. 2009); see also McLaurin v. Colvin, 121 F. Supp. 3d 134, 141
(D.D.C. 2015) (“Additionally, there is no requirement, as Plaintiff seems to argue, that the ALJ
must identify in her written ruling every discrete opinion of an applicant’s expert and explain the
reasons for rejecting each of them.” (footnote omitted)). The ALJ noted all of Dr. Brosch’s
findings and explained the weight he gave to her opinion, and he therefore considered sufficiently
Dr. Brosch’s opinion and explained his assessment of it.
Second, Mr. Henderson further contends that the weight given to Dr. Brosch’s opinion,
both the overall opinion and the specific opinion that Mr. Henderson was “able to follow and
understand simple directions,” A.R. at 490–91, was inconsistent with the ALJ’s final RFC finding.
Because the two were inconsistent, Mr. Henderson claims, the ALJ had a duty to explain why that
was the case. Pl.’s Mot. at 21. This argument is similarly unavailing because the ALJ’s RFC
finding accounted for Dr. Brosch’s opinion. The ALJ’s RFC finding stated that Mr. Henderson
was “limited to simple, routine tasks, with a specific vocational preparation of 2 or below, with
few workplace changes.” A.R. at 18. He further found that Mr. Henderson could “have occasional
interaction with co-workers and supervisors, but can never interact with the general public,” and
that he “should not engage in any tandem, team, or group work activity.” Id.The ALJ’s RFC finding noted significant limitations that are consistent with Dr. Brosch’s
opinions. For example, Dr. Brosch opined that Mr. Henderson was mildly to moderately limited
22
in his ability to perform simple tasks, A.R. at 491, and the RFC finding reflects that by limiting
Mr. Henderson to “simple, routine tasks, with a specific vocational preparation of 2 or below,” id.
at 18. This also reflected Dr. Brosch’s noted moderate limitation on maintaining attention and
concentration, mild to moderate limitation to learn new tasks, marked limitation to make
appropriate decisions and appropriately deal with stress, and moderate to marked limitation in his
ability to perform complex tasks on his own. Id. at 491. The social limitations listed by the ALJ
further reflect Dr. Brosch’s opinions that Mr. Henderson was markedly limited in his ability to
“relate adequately with others.” Id. Together, all the limitations in the RFC finding accounted for
Dr. Brosch’s opinions. 12 Cf. Holland v. Berryhill, 273 F. Supp. 3d 55, 65 (D.D.C. 2017) (finding
that ALJ’s finding limiting claimant to “jobs that involve simple instructions, limited contact with
others, and allowed him to be off-task up to five percent of the workday due to his problems related
to focus and concentration” sufficiently accounted for his “mental impairments that affect his
ability to concentrate and interact with others”); Cunningham v. Colvin, 46 F. Supp. 3d 26, 35
(D.D.C. 2014) (finding that ALJ “clearly considered” psychiatric evaluator’s conclusions along
with other evidence in record, including day-to-day activities, and therefore RFC finding was
12
Citing SSR 85-15, Mr. Henderson argues that “unambiguous Agency policy states that the
ability to adapt to the demands or ‘stress’ of the workplace is not necessarily accounted for by
reducing the individual to a lower stress level.” Pl.’s Mot. at 22. He is correct that SSR 85-15
explains that “[a]ny impairment-related limitations created by an individual’s response to demands
of work . . . must be reflected in the RFC assessment.” SSR 85-15. He is also correct that SSR
85-15 recognizes that some “mentally impaired persons” may struggle in unskilled jobs due to
limitations in handling stress and pressure. Id. However, neither SSR 85-15 nor any other
authority relied upon by Mr. Henderson specifies that an ALJ must make any particular RFC
finding if the claimant has limitations in dealing with stress. In fact, when discussing the impact
of stress and mental illness, SSR 85-15 clarifies that it “is not intended to set out any presumptive
limitations for disorders, but to emphasize the importance of thoroughness in evaluation on an
individualized basis.” Id. Considering the ALJ’s comprehensive discussion of Mr. Henderson’s
mental limitations and the evidence in the record discussed above, the ALJ was sufficiently
thorough here.
23
consistent with record and supported by substantial evidence).
To the extent that the ALJ’s RFC finding could potentially be viewed as inconsistent with
Dr. Brosch’s opinion, the ALJ explained his determination of Mr. Henderson’s mental limitations
in other portions of his decision as well. For instance, when discussing Mr. Henderson’s claim of
affective disorder, the ALJ noted that he “has never received any mental health treatment and [was]
not taking any mental health medication, which [was] inconsistent with his allegations.” A.R. at
20. The ALJ explained that Mr. Henderson worked in 2011, despite originally having an onset
date in 2009, and did not provide any medical evidence suggesting that his symptoms worsened at
that point. Id. These facts, plus others, suggested to the ALJ that “his symptoms may not be as
severe as has been alleged.” Id. In his step three analysis, moreover, the ALJ provided information
that he saw as undercutting Mr. Henderson’s mental health claims, including that Mr. Henderson
performed light household chores, was able to go shopping, handled his finances on his own, went
to church twice a week, spent time with his family, had never been laid off for not getting along
with others, handled changes in routine well, was able to finish what he started, and did well with
both spoken and written instructions. Id. at 17; see also Holland, 273 F. Supp. 3d at 64 (“When
evaluating a claimant’s testimony about his functional capacity, an ALJ may take into account the
claimant’s level of daily activity.”). The ALJ therefore sufficiently explained any potential
inconsistency between his RFC finding and Dr. Brosch’s opinion.
In short, the ALJ evaluated the evidence in the record regarding Mr. Henderson’s mental
impairments, explained the persuasiveness of the evidence and of Dr. Brosch’s opinion,
incorporated Dr. Brosch’s findings into his RFC finding, and explained any potential
inconsistencies between his finding and Dr. Brosch’s opinion. The Court cannot “reweigh the
evidence and replace the [SSA Commissioner’s] judgment regarding the weight of the evidence
24
with its own.” Cunningham v. Colvin, 46 F. Supp. 3d at 36 (internal quotation marks omitted)
(quoting Brown v. Barnhart, 370 F. Supp. 2d 286, 288 (D.D.C. 2005)). The ALJ ultimately
provided a “logical bridge” from Dr. Brosch’s opinion to his ultimate RFC finding as required and
his finding on Mr. Henderson’s mental impairments and RFC finding were supported by
substantial evidence. Lane-Rauth, 437 F. Supp. 2d at 67.
C. The ALJ’s Failure to Address or Consider Dr. Aleskow’s Testimony
Mr. Henderson’s third argument is that the ALJ failed to make any finding regarding his
tremors during step two, which impacted the ultimate step five finding, and that the ALJ’s
reasoning was deficient because he “fail[ed] to discuss numerous § 416.927(c) factors that [were]
plainly relevant here.” Pl.’s Mot. at 25. As part of this argument, he also claims that the ALJ erred
by not considering Dr. Aleskow’s report or weighing his opinion and by only briefly addressing
Dr. Taubin’s report. Id. at 26. While he ALJ did not discuss Dr. Aleskow’s report at length, when
his decision is read as a whole, it is clear that the ALJ thoroughly considered the consultative
examiners’ opinions as to Mr. Henderson’s tremors and sufficiently explained why he found their
opinions to not be well-supported or consistent with other evidence in the record. See Keene v.
Berryhill, 732 F. App’x 174, 177 (4th Cir. 2018) (“We must read the ALJ’s decision as a whole.”);
Fullen v. Comm’r of Soc. Sec., 705 F. App’x 121, 124 (3d Cir. 2017) (stating that ALJ’s decision
must be read “as a whole”); Summers v. Colvin, 634 F. App’x 590, 593 (7th Cir. 2016) (explaining
that court reads ALJ’s decision “as a whole”).
First, the ALJ satisfied his duty to consider all evidence in the record, including medical
opinions, and did not overlook Dr. Aleskow’s report. See 20 C.F.R. § 416.927(b)–(d); SSR 96-8p.
The ALJ’s decision here explicitly referenced Dr. Aleskow’s report, such as in the context of what
Mr. Henderson told the physician. See, e.g., A.R. at 19 (“However, [Mr. Henderson] reported to
25
the consultative examiner Dr. Aleskow that he is able to sit for 45 minutes at a time, stand for 10–
15 minutes, walk a ¼ block, and lift up to 10 pounds (Exhibit 7F/4).”). The ALJ also cited to the
report throughout his decision. See id. at 16, 19, 20, 21 (all citing Exhibit 7F, Dr. Aleskow’s
report). These citations demonstrate that the ALJ properly considered, and did not overlook or
ignore, Dr. Aleskow’s report.
Moreover, Dr. Taubin’s opinion on Mr. Henderson’s tremors—which the ALJ did address
at length—mirrored that of Dr. Aleskow. For instance, Dr. Aleskow noted that Mr. Henderson had
a resting tremor of unknown etiology that was worse on the right than the left and that led to him
having some difficulties with fine motor skills, such as fastening or snapping buttons. See id. at
443–46 (mentioning tremors throughout). 13 Dr. Taubin similarly noted that Mr. Henderson had “a
fine tremor of his right hand,” and a “[h]istory of a tremor,” which resulted in “difficulty writing
with the hand.” Id. at 454–55. He also explained that Mr. Henderson had 3/5 grip on the right
hand and 5/5 on the left, and that he was able to write “his name on the card with no difficulty.”
Id. at 454. He concluded that Mr. Henderson could not “use fine dexterity because of tremor of his
right hand.” Id. at 455. The two physicians’ opinions were thus substantially similar.
The ALJ thoroughly considered the record as to Mr. Henderson’s tremors in the context of
Dr. Taubin’s opinion. See A.R. at 21. The ALJ ultimately gave little weight to Dr. Taubin’s opinion
because it was inconsistent with his own observations and the record as a whole. Id. The ALJ also
gave partial weight to the opinions of the State agency physical consultants, who opined that Mr.
Henderson could “occasionally handle and finger, but frequently feel,” which he found consistent
with the record. Id. at 20. The ALJ cited in his decision to numerous medical records that were
13
Dr. Aleskow did not explain whether some of this information, including the checklist on which
he noted that Mr. Henderson was unable to fasten buttons or snaps, was based on Mr. Henderson’s
reporting or on some other source, such as an examination. See, e.g., A.R. at 446.
26
consistent with his rejection of Dr. Taubin’s opinion, which was substantially similar to Dr.
Aleskow’s opinion. See id. at 21 (listing as examples pages from Exhibits 1F, 2F, 5F, 7F, and 8F);
see also, e.g., id. at 351 (Exhibit 1F, spine x-ray showing no degenerative changes); id. at 377(Exhibit 2F, physical examination showing clear lungs, normal gait, that he was fully oriented, and
that he had no clubbing or other issues in extremities); id. at 422 (Exhibit 5F, treatment notes
explaining that full radiographic workup showed no significant degenerative changes in spine).
The ALJ further pointed out other inconsistencies with Dr. Taubin’s (and by extension Dr.
Aleskow’s) opinion throughout his decision, including his discussion of Mr. Henderson’s day-to-
day activities. See, e.g., id. at 17. And, importantly, his RFC finding ultimately did limit Dr.
Henderson to “frequent,” rather than constant, “fine manipulation and gross handling,” which
incorporated the credited evidence regarding Mr. Henderson’s dexterity. Id. at 18. Even if the
ALJ did not explicitly discuss and assign weight to Dr. Aleskow’s opinion, his decision read as a
whole and the accompanying substantial medical record make clear why the ALJ found the
physicians’ opinions as to Mr. Henderson’s tremors “not well-supported and inconsistent with
other evidence in the record.” See Grant, 857 F. Supp. 2d at 153.
Altogether, the record indicates that the ALJ comprehensively considered the evidence in
the record regarding Mr. Henderson’s tremors. See id. at 154–55 (upholding ALJ’s finding that
opinion was not well-supported and inconsistent based on “decision as a whole” and “substantial
medical record in the case”). It is true, as Mr. Henderson argues, that the ALJ did not enumerate
each of the factors listed in 20 C.F.R. § 416.927(c) for Dr. Aleskow’s and Dr. Taubin’s opinions.
But he did not need to do so. See Turner v. Astrue, 710 F. Supp. 2d 95, 106 (D.D.C. 2010)
(“Contrary to Turner’s assertions, the ALJ was under no obligation to specifically enumerate each
of the six factors described in the Social Security regulations.”). Accordingly, Mr. Henderson’s
27
arguments here fail.
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT IN PART and DENY IN PART Mr.
Henderson’s Motion for Judgment of Reversal and GRANT IN PART and DENY IN PART the
Commissioner’s Motion for Judgment of Affirmance. In particular, the Court REVERSES AND
REMANDS the ALJ’s decision as to whether Mr. Henderson’s impairments prevented him from
doing other work. The Court DENIES the remainder of Mr. Henderson’s Motion and AFFIRMS
the portions of the ALJ’s decision that are not being remanded. An appropriate Order accompanies
this Memorandum Opinion.
Dated: October 28, 2019
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
28