UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHANIE SETTLES, Plaintiff,

v. Civil Action No. 13

- 1868 (DAR) CAROLYN W. COLVIN, Acting Commissioner o f Social Security Admin i stration , Defendant.

MEMORANDUM OPINION This case was referred to the undersigned for all purposes

. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Document No. 22) . Currently pending and ready for resolution are ( 1) Plaintiff’s Motion for Judgment of Reversal (“Plaintiff’s Motion”) (Document No. 14) and ( 2) Motion for Judgment of Affirmance and in Opposition to Motion for Judgment of Reversal (“Defendant’s Motion”) (Document No. 15) . Upon consideration of the motions, the memoranda in support thereof and in opposition thereto, and the entire r ecord herein, P laintiff’s motion will be granted in part and D e fendant’s motion will be denied

.
BACKGROUND Plaintiff Stephanie Settles brings this action seeking judicial re view of a final decision by Defendant Commissioner of the Social Security Administration , pursuant to Section 4 05(g) of the Social Security Act, 42 U.S.C. §§ 401 et seq. (“SSA ”)

. Id. ¶¶ 2

- 4. Procedural HistorySettles v. Colvin 2
On December 19, 1988, P laintiff first applied for supplemental security income (“SSI”). Administrative Record (“AR”) 1 at 493. On February 2, 1989, her application was granted. Id. On March 30, 2001, she was incarcerated for a one

- year period, r esulting in the automatic loss of her benefits

. Id. On December 31, 2002, P laintiff again applied fo r SSI. Id. On May 11, 2003, her claim was denied. Id. She sought reconsideration of that decision but that request w as denied on November 10, 2003. Id. In 2004 and 2008, P laintiff again applied for SSI , and those claims were similarly denied. Id. On May 21, 2010, she applied yet again for SSI, and on January 7, 2011, her claim was denied yet again. Id. On March 15, 2011, she filed for reconsideration. Id. at 86. On June 8, 2011, her claim for reconsideration was denied. Id. at 493. On August 2, 2 011, P laintiff filed a written request for a hearing. Id. at 22. That hearing was held on August 22, 2012. Id. On September 4, 2012, A dministrative Law Judge (“ALJ”) issued his d etermination, finding that P laintiff was not disabled. Id. at 31. On September 24, 2013, the Commissioner denied the plaintiff’s request for a review of the AL J’s September 4, 2012 decision. Id. at 1

- 4. Summary of the ALJ’s Ruling On September 4, 2012, the ALJ issued a written opinion, wherein he ultimately

co ncluded that Plaintiff (referred to by the ALJ as the claimant) was “not disabled under section 1614(a)(3)(A) of the Social Security Act.” AR at 23

- 32. Specifically, the ALJ made the following ten summary findings:

1 The Administrative Record appea rs on the docket beginning at (Document No. 17

- 2) . It replaces the A dministrative Record filed at (Document No. 11)

.Settles v. Colvin 3

1. The claimant has not engaged in subs tantial gainful activity since May 21, 2010, the application date (20 C

. F

. R . § 416.971 et seq. ).
2. The claimant has the following severe impairments: mild right

- sided weakness as a result of alleged remote traumatic brain injury, depression, rule out p osttraumatic stress disorder, and cocaine dependence in reported remission (20 C

. F

. R . § 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C

. F

. R

. § 404, Subpart P, Appendix 1 (20 C

. F

. R . § 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 2 0 C

. F

. R . § 416.967(b) except that work must be unskilled, allow her to alternate between sitting and standing at will, and require limited general public contact.
5. The claimant has no past relevant work (20 C

. F

. R . § 416.965).
6. The claimant was born on September 30, 1966 and was 43 years old, which is defined as a younger individual age 18

- 49, on the date the application was filed (20 C

. F

. R . § 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 C

. F

. R . § 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C

. F

. R . § 416.968).
9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are j obs that exist in significant numbers in the national economy that the claimant can perform (20 C

. F

. R . § 416.969 and 416.969(a)).Settles v. Colvin 4

10. The claimant has not been under a disability, as defined in the Social Security Act, since May 21, 2010, the date the ap plication was filed (20 C

. F

. R . § 416.920(g)). AR at 25

- 32.

CONTENTIONS OF THE PARTIES Plaintiff contends that the ALJ’s decision should be reversed, and that the matter should be (1) remanded for the award of S ocial S ecurity insurance benefits and SSI or (2) remanded for further proceedings

. See Plaintiff’s Motion (Document No. 14) at 2. Plaintiff argues that the ALJ did not adhere to the “treating physician rule” as followed by this jurisdiction, failing to give the proper controlling weight to the opinion Plaintiff’s treating physician, Dr. Britt. Plaintiff’s Memorandum in Support of Motion for Judgment of Reve rsal (“Plaintiff’s Me morandum”) (Document No. 1 4) at 11

- 16. Plaintiff avers that Dr. Britt ’s opinion

was sufficient to find Plaintiff disabled within contemplation of 20 C.F.R. § 404. Id. at 12. Moreover, Plaintiff argues that these findings are wholly supported by the record and additional medical opinions. Id. at 12

- 16. Therefore, Dr. Britt’s opinion should have receive d controlling weight under these circumstances, and any further inquiry int o Plaintiff’s status, without such deference, is inherently erroneous. Id. at 16

- 17. Plaintiff concludes that “ the record supports only a finding that Ms. Settles would not be able to find a job that exists in the economy .” Id. at 17. Plaintiff also alleges that she suffers from mental retardation (as well as other ailments) as a result of a brain injury that she sustained in 1988. See AR at 505

. Pla intiff contends that the ALJ erred in his assessment of her mental retardation, particularly evidence d by his rejection the 2003 evaluation administered by Dr. Neil Schiff. See Plaintiff’s Reply to Defendant’s MotionSettles v. Colvin 5 for Affirmance and in Opposition to Plaintiff’s Motion for Judgment of Reversal (“Plaintiff’s Reply”) (Document No. 19) at 5

- 6 ; see also AR 546

- 49

. In relevant part, Plaintiff states The ALJ points to no evidence that the WAIS

- III’s reliability is affected by time. And he ALJ cites to no contradictory evidence. The ALJ also ignores more recent corroborating tests in the record, providing objective evidence that Ms. Settles read ing, math, and language ability was no greate r than a third grade level. Even if the ALJ questioned the severity of Ms. Settles’ mental retardation as he does her ot her impairments, he is required acknowledge and co nsider all of the evidence in the record. There is no contradictory evidence. The uncontradicted evidence of her mental retardation fully satisfies the criteria set forth in 20 C.F.R. § 404, Subpart P, Appendix 1. Plaintiff’s Reply at 6 (cit ations and footnotes omitted). Plaintiff then counters the ALJ’s assertion that Dr. Schiff’s report was somehow inaccurate due to her cocaine use by contending that the ALJ made his assertion without providing evidence “ that the medical professionals would be unable to disting uish between mental illness and retardation and the symptoms of drug abuse ” or “ that she was using cocaine at that time .” Id. at 16

- 17. Plaintiff concludes that any such assertion is the product of speculation. Id. at 17. Defendant avers that the ALJ did not err in his analysis of Dr. Britt’ s opinion . Defendant argues that the ALJ’s decision to give Dr. Britt’ s opinion “little” weight was just ified , given that the opinion was contradicted by substan tial evidence from the record. Defendant’s Memorandum of Law in Support of Defendant’s Motion for Judgment of Affirmance and in Opposition to Motion for Judgment of Reversal (“Defendant’s Memorandum”) (Document No.
15

- 1) at 8

- 10. In support of this assertion , Defendant notes the appearance of several inconsistencie s within Dr. Britt’s assessments and ultimate conclusions. Id. Moreover, Defendant argues that Dr. Britt’s opinion, even taken at “face value” is not indicative of disabling mental impairments within contemplation of the applicable authorities. Id. at 1 4.Settles v. Colvin 6 Ultimately, Defendant contends that the totality of the record and issues of Plaintiff’s own credibility, all properly assessed by the ALJ, justify the ALJ’s departure from Dr. Britt’s opinion. Id. at 17

- 26. Thus, further inquiry into the Plaintiff’s status was not inherently erroneous as Plaintiff suggested. Id. at 28

. Defendant also contends that the ALJ properly dismissed Plaintiff’s assertions with
rega rd to her mental retardation. More specifically , Defendant states, “ (1) the ALJ properly rejecte d Dr. Schiff’s remote 2003 report on which Plaintiff relies; and (2) Plaintiff cannot show that she had the required deficits in adaptive functioning during the developmental period. ” See Defendant’s Reply to Plaintiff’s Reply for Judgment of Affirmance and in Opposition to Plaintiff’s Motion for Judgment of Reversa l (“Defendant’s Reply”) (Document No. 21 ) at 4

- 5. With regard to Defendant’s first assertion, Defendant presents the ALJ’s ob servation that Dr. Schiff’s 2003 report is temporally attenuated and tainted due to Plaintiff’s alleged drug use during that relevant period. Id. Moreover, Defendant avers that “ the record supports that Plaintiff engaged in rampant drug abuse, including non - compliance with drug treatment and multiple arrests, since her teenage years (a time period that includes Dr. Schiff’s 2003 examination) [,] ” i d. at 5 (citations omitted), and t herefore, the ALJ’s findings are not based on speculation. With regard to Defend ant’s second assertion, Defendant notes that Plaintiff’s proffers support the notion “that any alleged deficits occurred after the developmental period ,” in contraventio n of the listing requirements for mental retardation. See i d. at 5 ; see also 20 C.F.R. § 404, Subpart P, Appendix I, Listing 12.05. Therefore, according to Defendant, Plaintiff would be unable to meet her burden with regard to the applicable authorities. Defendant’s Reply (Document No. 21) at 5

- 6

STATUTORY FRAMEWORKSettles v. Colvin 7

The Social Security Act establis hed a framework to provide “disability insurance benefits” to eligible individuals and “to provide supplemental security income to individuals who have attained age 65 or are blind or disabled.” 42 U.S.C. §§ 423, 1381, 1381a. The statute defines disabili ty for non

- blind individuals as “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 con tinuous period of not less than 12 months[.]” § 423(d)(1)(A); 20 C.F.R. § 416.905. A disabled individual is eligible for supplemental security income if he or she meets additional statutory requirements concerning “income” and “resources.” 42 U.S.C. § 1 382(a). The Social Security Administration has promulgated regulations, pursuant to the statue, outlining a five

- step process for evaluating disability of adults. See 20 C.F.R. §§ 404.1520, 416.920. First, the agency evaluates whether the claimant is “d oing substantial gainful activity”; if so, the agency concludes that the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), (b); 416.920(a)(4)(I), (b). If not, the agency determines whether the claimant has “a severe medically determinable physica l or mental impairment that meets the duration requirement . . . or a combination of impairments that is severe and meets the duration requirement . . . .” §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The impairment or combination of impairments is severe i f it “significantly limits [the claimant’s] physical or mental ability to do basic work activities . . . .” §§ 404.1520(c); 416.920(c). If deemed severe, the agency then determines whether the impairment “meets or equals one of [the] listings”; if so, an d it meets the duration requirement, the agency concludes that the claimant is disabled. §§ 404.1520(a)(4)(iii), (d); 416.920(a)(4)(iii), (d). The “listings” refers to a “listing of impairments” which “describes for each of the major body systems impairm ents that [the agency] consider to be severe enough to prevent anSettles v. Colvin 8 individual from doing any gainful activity, regardless of his or her age, education, or work experience.” § 404.1525(a). Next, the agency assesses the claimant’s “residual functional cap acity and . . . past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), (f); 416.920(a)(4)(iv), (e), (f). Residual functional capacity is “the most [an individual] can still do despite” “physical and mental limitations,” from all medically determinabl e impairments, “that affect what [he or she] can do in a work setting.” § 404.1545. If the claimant has the residual functional capacity to perform his or her “past relevant work,” the claimant is deemed not disabled. § 404.1560(b)(3). Otherwise, the a gency assesses the claimant’s “residual functional capacity and . . . age, education, and work experience to see if [he or she] can make an adjustment to other work.” §§ 404.1520(a)(4)(v), (g); 416.920(a)(4)(v), (g). If the claimant can adjust to other w ork that “exist[s] in significant numbers in the national economy,” the agency determines that the individual is not disabled. § 404.1560(c). However, if the claimant cannot make such an adjustment, the agency finds that the individual is disabled. §§ 4 04.1520(g)(1), 416.920(g)(1).

APPLICABLE STANDARD Claimants may seek judi cial review in a United States D istrict C ourt of “any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . .” 42 U.S.C. § 405(g). “The Commissioner’s ultimate determination will n ot be disturbed if it is based on substantial evidence in the record and correctly applies the relevant legal standards.” Butler v. Barnhart , 353 F.3d 992, 999 (D.C. Cir. 2004) (citations omitted). “In other words ‘[a] district court’s review of the [Soc ial Security Administration’s] findings of fact is limited to whether those findings are supported by substantial evidence.’” Little v. Colvin , 997 F. Supp. 2d 45, 49 (D.D.C. 2013) (citations omitted). “Substantial evidence is such relevant evidence as aSettles v. Colvin 9 reasonable mind might accept as adequate to support a conclusion.” Butler , 353 F.3d at 999 (internal quotation marks omitted) (citing Richardson v. Perales , 402 U.S. 389, 401 (1971)). “The test requires more than a scintilla, but can be satisfied by som ething less than a preponderance of the evidence.” Id. (citation omitted) (internal quotation marks omitted). The United States Court of Appeals for the District of Columbia Circuit has observed that “[s]ubstantial

- evidence review is highly deferential to the agency fact

- finder,” Rossello ex rel. Rossello v. Astrue , 529 F.3d 1181, 1185 (D.C. Cir. 2008), and that “ a reviewing judge must uphold the ALJ’s legal ‘determination if it . . . is not tainted by an error of law,’” Isaraphanich v. Comm’r of Soc. Sec. Admin ., No. 12

- 0700, 2013 WL 3168141, at *3 (D.D.C. June 21, 2013) (citations omitted); see also Nicholson v. Soc. Sec. Admin. , 895 F. Supp. 2d 101, 103 (D.D.C. 2012) (citation omitted) (internal quotation marks and alteration omitted) (noting that the inquiry upon judicial review “examines whether the ALJ has analyzed all evidence and has sufficiently explained t he weight he had given to obviously probative exhibits”); Little , 997 F. Supp. 2d at 49 (citations omitted) (noting that the court “is not to review the case ‘de novo’ or reweigh the evidence”). “The plaintiff bears the burden of demonstrating that the Co mmissioner’s decision [was] not based on substantial evidence or that incorrect legal standards were applied.” Muldrow
v. Astrue , No. 11

- 1385, 2012 WL 2877697, at *6 (D.D.C. July 11, 2012) (citation omitted); see also Garnes v. Colvin , No. 12

- 1090, 2013 W L 5297221, at *4 (D.D.C. Aug. 27, 2013).

DISCUSSION Treating Physician This Court applies the “treating physician rule.” In Espinosa v. Colvin , 953 F. Supp. 2d 25 (D.D.C. 2013), the district court held that “a treating physician’s report is binding on the fact

finder unless contradicted by substantial evidence.” 953 F. Supp. 2d at 32 (citing Butler , 353 F.Settles v. Colvin 10
3d 992, 1003 (D.C. Cir. 2004)); see al so 20 C.F.R. § 404.1527 (c)(2) (stating that when “a treating [physician]’s opinion . . . is well

- supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [plaintiff’s] c ase record, [SSA] will give it controlling weight”) (citations omitted). “If an ALJ rejects a treating physician’s opinion, the ALJ bears the burden of explaining why he has rejected the treating physician’s opinion and how the doctor’s assessment is cont radicted by substantial evidence.” Espinosa , 953 F. Supp. 2d at 32 (citations omitted). Moreover, with regard to an ALJ’s reasoning “ the Court may only con sider the grounds proffered by the agency in its decision for post hoc rationalizations do not suffice .” Id. at 33; see also Simpson v. Colvin , No.
1 4

- 762, 2015 WL 4735523, a t *6 ( D.D.C. Aug. 10, 2015) (remanding case in part for use of post hoc rationalizations); see also Clark v. Astrue , 826 F. Supp. 2d 13 , 20 (D.D.C. 2011) (holding that post hoc rationalizations are not to be considered by the reviewing court). Dr. Alice Britt, Plaintiff’s treating physician , treated P laintiff over the course of several
months in 2010

. See AR 405

- 451. During that treatment period, Dr. Britt diagnosed Plaintiff with ( 1) “Major Depressive Disorder ” ; ( 2) “R/O PTSD ” ; and ( 3) “Cocaine Dependence (in remission since 6/16/03).” See AR at 412. In addition to noting several of Plaintiff’s issues regarding concentration, forgetfulness, and paranoia, Dr. Britt also concluded that the totality of Plaintiff’s impairments would ultimately preclude her from working for more than 12 months. Id. at 413.
I n the single sentence reflecting his reasoning, the ALJ notes his depart ure from Dr. Britt’s medical opinion, stating that he gave the opinion “little weight due to the brief nature of their treating relationship, as well as the fact that Dr. Britt’s ob jective findings on assessment and in treatment were largely normal and actually showed improvement.” Id. at 27. The Court findsSettles v. Colvin 11 explanation to be wholly insufficient. Here, in rejecting the medical opinion of Plaintiff’s treating physician, the ALJ had “ the burden of explaining why he has rejected the treating physician’s opinion and how the doctor’s assessment is contradicted by substantial evidence.” Espinosa , 953 F. Supp. 2d at 32 (citations omitted) . That single sentence, while offering some explanation, ultimately falls short of that burden. The ALJ’s sweeping statement with regard Dr. Britt’s opinion lacks the necessary specificity as to which of her findings that could be characterized as “normal” and “actually showing improvement

. ” Moreo ver, that statement does not adequately explain why greater weight was afforded to the medical opinions of two consulting physicians, Dr. Elliot Aleskow and Dr. Spencer Cooper, who also examined Plaintiff. The ALJ’s opinion leaves too much to interpretati on. Defendant, through her written submissions, attempts to explain the ALJ’s reasoning, however, as previously stated, post hoc rationalizations are impermissible as the Court can only consider the grounds actually proffered by the ALJ. See Defendant’s Memorandum (Document No. 15

- 1) at 8

- 20. Here, Defendant’s arguments can only be characterized as such and, therefore, cannot be entertained

. Mental Retardation “[A]n ALJ's refusal to order a consultative exam is reversible error, in the event that the medical sources in the record do not provide sufficient information about whether or not a claimant is disabled.” See Meriwether v. Astrue , No. 12

- 67 , 2014 WL 8850108 , at *11 (D.D.C. November 24, 2014) (citing Dozier v. Heckler , 754 F.2d 274 , 276 (8th Cir . 1985). “ The regulations state that there is a need for a consultative exa m in the event that the medical evidence regarding a claimant's impairment(s) is insufficient. ” Id. ; see also 20 C.F.R. § 416.917. As previously stated, Dr. Neil Schiff conducted a consultative examination of Plaintiff in
2003 , as she sought to have her S ocial S ecurity benefits reinstated shortly after her incarceration.Settles v. Colvin 12

AR 546

- 49. After administering the Weschler Adult Intelligence Scale (III ) and the Weschler Memory S cale (III) , Dr. Schiff found that Plaintiff had a full scale IQ of 63 and that Plaintiff suffered from “mild mental retardation,” among other ailments. Id. These scores placed Plaintiff in the “ [e]xtremely lo w range of overall intellectual functioning

. ” Id. at 549. With regard to Plaintiff’s alleged injury that ultimately led to her mental retardation, the ALJ stated that “there is no medical documentation of the injury or alleged resulting impairments

. ” See AR at 24. Moreover, in rejecting Dr. Schi ff’s evaluation , the ALJ stated that the report was unreliable “due to the large amount of time that has elapsed since it was completed; due to the fact that [Plaintiff] was a daily user of cocaine at the time, per subsequent records; and due to the fact t hat examiner’s diagnosis was based solely on claimant’s self

- report of head injury. Id. 24

- 25. Here, the ALJ’s assessment ultimately falls short. While the Court is inclined to agree that Dr. Schiff’ s 2003 evaluation is indeed dated, nevertheless, the ALJ provides no indication as to whether one of the more recent evaluations contained in Plaintiff’s medical records addresses the issue of her mental retardation . The se circumstances present a scenario in which the ALJ was duty bound to either (1) request a consultative evaluation to address Plaintiff’s present issues, if any, regarding mental retardation; or (2) adequately explain that the recent evaluations in Plaintiff’s medical records observed the same subject matt er presented Dr. Schiff’s report , and now contradict that earlier assessment. Here, the ALJ did in fact obtain several consultative evaluations Plaintiff’s behalf, however it remains unclear as to whether those reports address the issue of mental retardat ion in a manner comparable to Dr. Schiff’s 2003 evaluation. Based on the information provided Plaintiff’s “ medical sources in the record do no t provide sufficient information ” with regard to her mental retardation. Meriwether , 2014 WL 8850108, at *11

. The interests of justice require a recent inquiry into Plaintiff’sSettles v. Colvin 13 assertions regarding her mental retardation. The Court is, therefore, unable to complete its review of this matter, in accordance with the applicable authorities, without such an inquiry. Defendant attempts to explain The ALJ’s reasoning in with regard to Plaintiff’s mental retardation, however, once again the Court finds that a substantial portion of this explanation consists of impermissible post hoc rationalizations that were not actual ly proffered by the ALJ.
See Defendant’s Reply (Document No. 21) at 4

- 5.

CONCLUSION For the reason s set forth herein, Plaintiff’s Motion for Judgm ent of Reversal (Document
No. 14 ) will be granted in part, Defendant’s Motion for Judgmen t of Affirmance (Document No. 15 ) will be denied, and this case will be remanded this to the Social Security Administration for further proceedings consistent with this Mem orandum Opinion, by o rder filed contemporaneously herewith. In all other aspects, Plaintiff’s Motio n is denied.

_ /s/______________ Date: August 17 , 2015 DEBORAH A. ROBINSON United States Magistrate Judge