# Broyles v. Barnhart > District Court, District of Columbia · December 18, 2012 · 910 F. Supp. 2d 55 URL: https://www.frixlaw.com/law-library/cases/2661377 ## Case - **Full name:** Willie Marie BROYLES, Plaintiff, v. Michael ASTRUE, Defendant - **Court:** District Court, District of Columbia - **Decided:** December 18, 2012 - **Citations:** 910 F. Supp. 2d 55; 2012 U.S. Dist. LEXIS 178623; 2012 WL 6589083 - **Precedential status:** Published - **Opinion:** Opinion by Roberts - **Judges:** Judge Richard W. Roberts - **Nature of suit:** Civil - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2661377 ## How later opinions describe it (automated extraction) - holding that three positions with an SVP of 2 were considered unskilled positions and consistent with the ALJ’s findings about the plaintiff’s mental limitations - finding an ALJ’s analysis sufficient because the ALJ clearly explained how he weighed certain evidence ## Opinion text 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. Pl.’s Mem. in Supp. of Mot. for Reversal (“Pl.’s Mem.”) at 3. She has a 1 Secretary Michael Astrue is substituted as the defendant under Federal Rule of Civil Procedure 29(d). -2- college 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. -3- In 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. Id. at 195. 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 -4- difficulties 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 -5- employment,” 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 -7- severity 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 -8- in 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 -9- Commissioner 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.” 42 U.S.C. § 405(g). 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.” Butler, 353 F.3d at 999. 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 -10- were supported by substantial evidence, the court “may not re- weigh 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.” 20 C.F.R. § 404.1525(a). -11- Broyles 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. Pl.’s Mem. at 6. 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.” 20 C.F.R. Part 404 Subpart P, Appendix 1, Section 12.04. 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 -12- b. 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). -13- Broyles’ 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 -14- Brown 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.” Turner, 710 F. Supp. 2d at 109 (internal quotation omitted). “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 -15- 30 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 -16- Functional 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 -17- ability 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. Id. at 20. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2661377. Public record. Not legal advice.