MEMORANDUM OPINION
Plaintiff Anthony Blackmon brings this action seeking review of the final administrative decision by Defendant Michael J. Astrue, in his official capacity as Commissioner of Social Security, 1 denying Plaintiffs claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSIB”) pursuant to 42 U.S.C. § 405(g). Pending before the Court are Plaintiffs Motion for Judgment of Reversal and Defendant’s Motion for Judgment of Affirmance. After reviewing the parties’ briefs, the administrative record, and the relevant case law, the Court shall DENY Plaintiffs [8] Motion for Judgment of Reversal and GRANT Defendant’s [11] Motion for Judgment of Affirmance, for the reasons that follow.
I. BACKGROUND
A. Legal Framework and Procedural History
Plaintiff filed applications for DIB and SSIB pursuant to Titles II and XVI of the Social Security Act (the “Act”) on May 1, 2001. See PL Mot. for J. of Reversal (“Pl.’s Mot.”), at 1-2. To qualify for disability insurance benefits and supplemental security income (“SSI”), a claimant must demonstrate a disability, which is defined by the Act 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 has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. § 416(i)(l); id. § 1382e(a)(3)(A). In addition, a claimant seeking disability or SSI benefits must have a severe impairment that makes him unable to perform past relevant work or any other substantial gainful work that exists in the national economy. See id. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Substantial gainful work activity is work activity that involves doing significant physical or mental activities and is the kind of work that is usually done for pay or profit. See 20 C.F.R. § 404.1572.
In making a disability determination, an Administrative Law Judge (“ALJ”) is required to use a five-step sequential analysis examining (1) the claimant’s recent work activity, (2) the severity and duration of the claimant’s impairments, (3) whether the claimant’s impairments are medically equivalent to those contained in the Listing of Impairments promulgated by the Social Security Administration (“SSA” or
Plaintiff is a 48 year-old male resident of Washington, D.C. See Administrative Record (“A.R.”) at 510. He has a high school education in addition to one and a half years of college. Id. at 64, 518. His past relevant work includes work as a data entry clerk, accounts payable clerk, and deputy court clerk. Id. at 511. In June of 2002, he returned to work on a part-time basis as a patient escort. Id. at 14, 59, 512. In his application for DIB and SSIB, Plaintiff alleged that he was disabled as of April 27, 2001, 2 on the basis of, inter alia, human immunodeficiency virus (“HIV”), neuropathy, depression, and fatigue. See PI. Mot. 1-2; A.R. at 13, 52, 482.
Plaintiffs claims were denied both initially and upon reconsideration. A.R. at 13. Plaintiff then requested a hearing before an ALJ. Id. at 37-38. That hearing was held on January 23, 2003. Id. at 13. Plaintiff was represented at the hearing by counsel, and a vocational expert (“VE”) testified at the ALJ’s request. See id. at 13. In a decision dated May 1, 2003, the ALJ determined that Plaintiff was not disabled within the meaning of the Act and denied the requested benefits. See generally id. at 13-23.
At
step one,
the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date.
Id.
at 15, 21. At
step two,
the ALJ found that the medical evidence indicated that Plaintiff was HIV positive and that the impairment was “severe.”
Id.
at 15, 21. At
step three,
the ALJ found that Plaintiffs HIV infection did not “meet or medically equal one of the impairments listed” in Appendix 1, Subpart P, No. 4 (20 C.F.R. § 404.1520(d)) and that “no treating or examining physician [had] offered an opinion or reported findings of a listing level severity, none is medically documented and none is supported.”
Id.
at 15, 21. The ALJ therefore proceeded to
step four,
Plaintiff sought review of this decision by the Appeals Council. See id. at 4-7. On May 19, 2004, the Appeals Council upheld the decision of the ALJ, finding no basis for granting the request for review. Id. at 4. Having fully exhausted his administrative remedies, Plaintiff timely filed suit in this Court.
B. Evidence Contained in the Administrative Record
The ALJ evaluated Plaintiffs condition based on evidence including various medical records (both physical and mental health records) and the testimony of the Plaintiff and the VE during the administrative hearing in this case. The Court recounts below the most relevant portions of the administrative record.
1. Physical Health Records
Plaintiff was a patient at the Whitman Walker Clinic in Washington, D.C., between August 22, 2000, and February 25, 2002. A.R. at 104. The Clinic’s medical records show that Plaintiff was diagnosed with HIV in 1991. Id. at 105. In addition, the records indicate that Plaintiff has a history of AIDS, peripheral neuropathy, substance abuse, and depression. Id. at 105. He was noted to have a baseline weight of 137-145 pounds. Id. With respect to the peripheral neuropathy, the Clinic noted that Plaintiff complained of tingling and numbness in his feet and stiffness in his right knee, and that this limited his activity and daily living. Id. at 106. Plaintiff was on medication for both his HIV and peripheral neuropathy, id., and the Clinic records indicate that Plaintiff would need to take life long anti-retroviral therapy, id. at 156. Plaintiffs HIV was noted to be stable and the records indicate that he had an excellent response to medications. Id. at 108, 110, 111, 124, 131.
On July 30, 2001, a Disability Determination Services physician completed a residual functional capacity assessment (physical) for Plaintiff. Id. at 194-201. The records show that Plaintiff was HIV positive and suffering from depression. Id. at 194. With regards to specific external limitations, it was determined that Plaintiff could occasionally lift or carry 50 pounds, frequently lift or carry 25 pounds, stand and/or walk for about 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, and engage in an unlimited amount of pushing and pulling. Id. at 195. The examining physician also found no established postural, manipulative, visual, communicative, or environmental limitations. Id. at 196-98. It was noted that Plaintiff continued to take his HIV medication, id. at 195, but had reported HIV wasting, id. at 196. At the time of the assessment, Plaintiff was 5'll" and weighed between 140 to 141$ pounds. Id. He reported being able to perform activities of daily living independently, such as dusting, laundry, food shopping, and attending church. Id. at 199.
Dr. Chitra R. Chari, a neurologist, examined Plaintiff on April 2, 2002.
Id.
at 220-22. Dr. Chari noted that Plaintiff had
Plaintiff underwent a second physical residual functional capacity assessment on April 18, 2002, performed by Dr. Isabelle Pico. Id. at 223-30. The records again show that Plaintiff was HIV positive and was suffering from depression. Id. at 222. Dr. Pico found that Plaintiff was able to lift 50 pounds occasionally and 25 pounds frequently and could stand, walk, and sit for about 6 hours in a normal workday. Id. at 224. Dr. Pico further determined that Plaintiff had unlimited ability to push and pull, and that he exhibited muscle strength of 5/5 in all extremities. Id. at 224. Plaintiff was again found to have a decrease in touch and pin sensation from the feet to two-thirds of the way up the leg, and from the hands to one-third of the forearm, but nonetheless was found to have no postural, manipulative, visual, communicative, or environmental limitations. Id. at 224-27.
2. Mental Health Records
Plaintiffs medical records indicate that on June 26, 2001, he was brought to the emergency room for a prescription medication overdose. Id. at 159. He was subsequently admitted to Prince George’s Hospital Center, which records show a principal diagnosis of “major depressive disorder, single episode, severe, with psychotic features, with suicide attempt.” Id. at 168. Plaintiff was started on medication to treat his depression and his HIV. Id. at 175.
On February 25, 2002, Dr. Neil Schiff performed a general psychological evaluation of Plaintiff.
Id.
at 217-19. Dr. Schiff determined that Plaintiff had a Verbal IQ of 77, a Performance IQ of 79, and a Full Scale IQ of 76.
Id.
at 217. Based upon administration of the Wechsler Adult Intelligence Scale-Ill, Dr. Schiff concluded that Plaintiff “is currently functioning in the borderline range of intelligence.”
Id.
at 218. Dr. Schiff further observed, however, that Plaintiff “was alert and oriented to person, place, and time” and that “[h]is speech was coherent and relevant, and no gross memory deficit was apparent during the interview.”
Id.
at 218. In addition, the evaluation indicates that Plaintiff “showed no signs of psychotic symptoms or thought disorder,” and, while “[h]is mood appeared mildly depressed, [] he was generally pleasant and cooperative.”
Id.
Plaintiff was also noted to have had “no difficulty understanding and following simple instructions,” and had “moderately good, if somewhat erratic, success with more complex or detailed tasks and instructions.”
Id.
Dr. Schiff further determined that Plaintiffs “vocabulary, his abstract conceptualization, his common-sense reasoning and judgment, his discrimination of relevant visual detail, and his nonverbal, logical reasoning were in the mildly deficient range for his age, and his mental manipulation of numbers was moderately deficient.”
Id.
at 219. The evaluation concluded that, at present, Plaintiff was
On April 18, 2002, Plaintiff underwent a mental residual functional capacity assessment performed by Dr. Patricia Cott, a Disability Determination Service physician. Id. at 232-35. Dr. Cott also completed a psychiatric review technique. Id. at 236-49. Plaintiff was reported to have only moderate to no significant limitations in his mental RFC. Id. at 232-33. Specifically, Plaintiff was noted to have moderate limitations in his ability to understand, remember, and carry-out detailed instructions; maintain attention and concentration for extended periods; accept instructions and respond appropriately to criticism; complete a normal workday and workweek without interruption; interact appropriately with the general public; and set realistic goals or make plans independently of others. Id. at 232-33. Plaintiff otherwise was found to have no significant limitations in his mental RFC. Id. Dr. Cott concluded that Plaintiff was capable of learning and performing simple tasks and routine work. Id. at 234.
With respect to the psychiatric review technique, Dr. Cott indicated that she had based her determinations on further RFC assessment. Id. at 236. The records show that Dr. Cott found the presence of a psychological or behavioral abnormality associated with a dysfunction of the brain, but noted that the impairment did not precisely satisfy any of the listed diagnostic criteria; she did, however, rule out neurological cognitive impairment related to HIV. Id. at 237. Similarly, Dr. Cott concluded that Plaintiff had evidence of a mood disturbance, accompanied by a full or partial manic or depressive syndrome, but again noted that the impairment did not precisely satisfy any of the listed diagnostic criteria. Id. at 239. Dr. Cott concluded that Plaintiffs behavioral and physical changes were associated with his past history of substance abuse. Id. at 244. The records also show that Plaintiff had moderate difficulty with the activities of daily living, social functioning, and maintaining concentration, persistence, or pace, but had only one or two episode of decompensation that lasted for an extended duration. Id. at 246. He was found to be “capable of learning and performing simple routines,” and to have signs and symptoms of peripheral neuropathy. Id. at 248.
3. Transcript of the Administrative Hearing
After initially being denied benefits, Plaintiff requested a hearing before an Administrative Law Judge. Id. at 502. The hearing was held on January 23, 2003, before ALJ Guy B. Arthur. Id. at 507-30. Plaintiff was represented by counsel at the hearing, and a VE was present as well. Id. at 509. Plaintiff testified that he had worked as an accounts payable clerk, data entry clerk, and deputy court clerk. Id. at 511. According to Plaintiff, his past jobs required him to “[wjalk around a lot;” he also indicated that he would occasionally lift between 10 and 20 pounds while working at accounts payable and as a data entry clerk and often lifted as much as 50 to 60 pounds while working as a deputy court clerk. Id. at 511-12. At the time of the hearing, Plaintiff stated that he worked part time as a patient escort at a treatment facility; he stated that he had been working at the facility since approximately March of 2002. Id. at 512-14. In addition, Plaintiff testified that he was voluntarily enrolled in a drug treatment facility and had not taken drugs for approximately one year. Id. at 514-16.
The ALJ also took testimony from the VE, who stated that he was familiar with Plaintiffs medical records and had been present during Plaintiffs testimony. Id. at 524. The VE described Plaintiffs prior work as an accounts payable clerk as “light duty, semiskilled,” and indicated that his data entry job was “sedentary, semiskilled.” Id. He also testified that Plaintiffs work as a deputy court clerk was a “medium duty, semiskilled position,” and that his current work as a patient escort was “light duty, semiskilled.” Id. at 524-25. During the hearing, the ALJ asked the VE if he could identify any jobs in the national economy that a hypothetical person who had the same age, education, and work experience as the Plaintiff could perform. Id. at 526-28. Specifically, the VE was asked to consider a series of six escalating hypotheticals regarding the availability of work for persons with an increasing degree of impairments similar to those claimed by the Plaintiff. Id.
In the first base hypothetical, the VE was asked to consider someone who: had the capacity for “low-stress, routine type of work ... that doesn’t require more than moderate attention, concentration, [ ] persistence and pace for long periods of time.” Id. at 527. The individual in this hypothetical could not “climb ladders, ropes, and scaffolds” and was precluded from work involving exposure to “hazardous heights, [] hazardous moving machinery, [ ] extreme temperature changes.” Id. In addition, the individual could not be exposed in concentrated levels to “dust, fumes, chemicals, poor ventilation!,] excessive humidity or excessive wetness.” Id. The VE was to assume, however, that the individual could “frequently climb stairs and ramps, [ ] frequently balance and stoop, [and] occasionally kneel and crouch;” had “slight to [ ] moderate pain;” and had “no more than moderate limitations as far as the ability to perform activities within a schedule, maintain regular attendance!,] be punctual with a customary tolerance, ... [and] complete] a normal workday or workweek ... without an unreasonable length and number of rest periods.” Id. In response to this first hypothetical, the VE testified that significant employment opportunities existed in both “light duty, unskilled work” and in “sedentary unskilled work.” Id. at 528-29. The VE identified specific positions available in each category, including cashier II, office helper, and sales attendant with respect to the “light duty, unskilled work” category and administrative support worker, an order clerk, and a charge account clerk with respect to the latter “sedentary unskilled work” category. Id. at 529. The VE testified that “[a]ll jobs mentioned are consistent with the descriptions provided in The Dictionary of Occupational Titles.” Id. at 529.
In the
second
hypothetical, the ALJ added two restrictions to the base hypothetical delineated above. Specifically, the ALJ asked the VE to consider an individual who had all the limitations set forth in the first hypothetical but who also (1) has “borderline intellectual functioning;” and (2) cannot perform “work that requires kneeling, crouching and crawling,” and
In the third hypothetical, the ALJ instructed the VE to “make it more restrictive” by considering, in addition to the above limitations, the limitation that the individual could not engage in any work that required “above the shoulder upper extremity lifting or carrying [or] lower extremity use of push/pull controls.” Id. at 527-28. The VE responded that, in light of these additional limitations, the number of light duty positions available would be “reduce[d] ... by approximately 10 percent.” Id. at 529.
In the fourth hypothetical, the ALJ added the additional limitation that the individual could not engage in work that required “repetitive bilateral hand use,” although he noted that he was “not precluding all use of the right or left hand.” Id. at 528. The VE indicated that under this fourth hypothetical, with the added limitation of no repetitive bilateral hand use, the number of light duty positions would be reduced an additional 20 percent and the number of sedentary positions available would be reduced by 10 percent. Id. at 529.
In the fifth hypothetical, the ALJ indicated that the VE should further limit the work the individual could perform by excluding “prolonged walking and standing” and requiring a “sit/stand option with no more than half an hour sitting or standing at any one time.” Id. at 528. The VE responded that these additional limitations would eliminate any available work in the light duty category and would leave only the work identified above in the sedentary category. Id. at 529.
Finally, in the sixth hypothetical, the ALJ asked the VE to elevate the pain level and “non-exertionals, such as the ability for persistence and pace” to “above moderate to severe [on] a chronic basis.” Id. at 528. The VE testified that “there would be no work available to [ ] a hypothetical individual” with this final added limitation. Id. at 529.
II. LEGAL STANDARD
“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,
A court will not disturb the determination of the Commissioner if it is based on substantial evidence in the record and the correct application of the relevant legal standards. 42 U.S.C. §§ 405(g), 1383(c);
Butler,
In reviewing an administrative decision, a court may not determine the weight of the evidence nor substitute its judgment for that of the Commissioner if his decision is based on substantial evidence.
Butler,
III. DISCUSSION
Plaintiff argues that the ALJ’s decision should be reversed, or alternatively that this case should be remanded to the Administration for a new hearing. He makes six arguments in support of these requests: (1) the ALJ erroneously determined that Plaintiff was performing substantial gainful activity; (2) the ALJ improperly determined that Plaintiffs depression, borderline intellectual functioning, and peripheral neuropathy were non-severe impairments; (3) the ALJ failed to follow the proper procedure for analyzing mental impairments; (4) the ALJ erroneously assessed Plaintiffs RFC; (5) the ALJ erroneously determined that Plaintiff was capable of performing his past-relevant work; and (6) the ALJ erroneously relied upon the testimony of the VE. See Pl.’s Mot. Defendant disputes Plaintiffs characterization of the ALJ’s opinion, asserting that the ALJ’s decision was supported by substantial evidence. See generally Def.’s Mot. for J. of Affirmance (“Def.’s Mot.”). The Court shall address these arguments below.
A. Substantial Gainful Activity
As indicated above, the ALJ found at step one of the evaluation that Plaintiff had “not engaged in substantial gainful
B. The Seventy Analysis
At step two of the sequential process, the ALJ must “consider the medical severity of [the claimant’s] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ finds that the claimant has a severe impairment, the ALJ must proceed to step three; if, however, the claimant does not have a severe impairment, the claimant is found to be not disabled. See id. In this case, the ALJ determined only that Plaintiffs HIV status was a severe impairment and made no similar finding that Plaintiffs remaining impairments — namely, his depression, borderline intellectual functioning, and peripheral neuropathy — were severe impairments at step two of the sequential analysis. A.R. at 15, 21. Plaintiff argues that this finding is legal error for two reasons. See Pl.’s Mot. at 6-10. First, Plaintiff argues that there is substantial evidence in the record indicating that, contrary to the ALJ’s finding, his depression, borderline intellect, and neuropathy were severe impairments. Id. at 6-9. Second, Plaintiff contends that the ALJ failed to properly explain his reasoning for finding that these impairments were not severe. Id. at 9-10. Accordingly, Plaintiff urges that the ALJ committed a legal error when he failed to find Plaintiffs non-HIV impairments to be severe at step two.
The Court finds that any alleged error at step two does not require reversal in this case. While it appears that the D.C. Circuit has not yet addressed the question at hand, the Sixth, Ninth, and Tenth Circuits have each held that alleged errors at step two do not necessarily require reversal so long as the ALJ considered the omitted impairment(s) in evaluating the remaining steps in the sequential analysis. For example, in
Burch v. Barnhart,
The Sixth Circuit reached the same conclusion in
Maziarz v. Secretary of Health and Human Services,
The Court is persuaded by the reasoning of these decisions and agrees that, in this case, any legal error made at step two does not require reversal. Even assuming that the ALJ legally erred when he determined that Plaintiffs borderline intellectual functioning, depression, and peripheral neuropathy were non-severe, such an omission did not prejudice Plaintiff because the ALJ specifically found that Plaintiffs HIV infection was a seizure impairment, AR at 15, 21, and therefore continued to consider the remaining steps in the sequential analysis, see id. at 15-21.
While Plaintiff may have been able to nonetheless demonstrate prejudice if he had shown that the omitted impairments would have been found to meet a listing at step three, there is no indication in the record that any of Plaintiffs non-HIV impairments satisfied any enumerated listing. Indeed, the ALJ specifically found as much, observing that “no treating or examining physician offered an opinion or reported findings of a listed level severity, none is medically documented and none is supported.” Id. at 15. Plaintiff appears to agree that none of his impairments, including his non-HIV impairments, met or equaled an enumerated listing as he does not challenge the ALJ’s findings at step three and makes no argument in his present briefing that his depression, borderline intellectual functioning, or neuropathy should have been found to meet or equal a listing. See generally Pl.’s Mot. As such, even assuming that the ALJ committed a legal error at step two, Plaintiff was not prejudiced by this error at step three of the sequential analysis.
Nor did any such legal error prejudice Plaintiff at step four or step five of the evaluation. As is discussed in detail below, the Court finds that the ALJ properly
C. Analysis of Mental Impairments
Pursuant to 20 C.F.R. § 404.1520a, the SSA is required to follow a “special technique” when evaluating any alleged mental impairments. In particular, the regulation requires that the SSA “first evaluate [the claimant’s] pertinent symptoms, signs, and laboratory findings to determine whether [the claimant has] a medically determinable mental impairment(s);” “[i]f [the SSA] determinefs] that [the claimant has] a medically determinable mental impairment(s), [the SSA] must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s) and document [its] findings....” 20 C.F.R. § 404.1520a(b). Plaintiff argues that the ALJ failed to follow this procedure in evaluating his alleged mental impairments and that this failure constitutes reversible error. PL’s Mot. at 10-13. For the reasons set forth below, the Court does not agree and finds that the ALJ appropriately evaluated Plaintiffs mental impairments.
First and most importantly, Plaintiffs argument on this point is based upon an inaccurate and outdated version of the relevant regulation. In arguing that the ALJ committed legal error, Plaintiff has relied prineipally on the Ninth Circuit’s decision in
Gutierrez v. Apfel,
Second, the Court finds that the ALJ sufficiently complied with the requirements of 20 C.F.R, § 404.1520a in its present form by “incorporatfing] the pertinent
In addition, the ALJ’s decision “include[s] a specific finding as to the degree of limitation in each of the [four required] functional areas.” 20 C.F.R. § 404.1520a(e)(2). Review of the ALJ’s decision shows that he included specific citations to Dr. Cott’s findings that Plaintiff had only moderate difficulties with the activities of daily living, social functioning, and maintaining concentration, persistence, or pace and had experienced only one or two episode of decompensation that lasted for an extended duration. A.R. at 17. It is evident from the ALJ’s decision that he accepted these findings and incorporated them into his RFC of Plaintiff. For example, with respect to Plaintiffs ability to perform the activities of daily living, the ALJ found that Plaintiff was “able to perform activities of daily living independently and care for his own personal needs.” Id. at 18. As regards Plaintiffs ability to engage in social functioning, the ALJ found that Plaintiff was “able to think, communicate and act in his own interest” and had “moderate [ ] limitations as to the ability to ... work in coordination or proximity to others without distracting them or being distracted by them.” Id. at 18, 20. The ALJ also noted that Plaintiffs ability to perform work was limited by his “borderline intellect! ]” and “need for work of a low stress routine [i.e., requiring no more than moderate attention and concentration, persistence and pace for prolonged periods].” Id. at 19-20, 21-22. Accordingly, the Court finds that the ALJ properly evaluated Plaintiffs mental impairments in compliance with 20 C.F.R. § 404.1520a.
D. The Residual Functional Capacity Analysis
To make a determination under steps four and five of the disability analysis, which involve an inquiry into the claimant’s ability to return to past work and a determination of whether future employment of any variety is possible,
see
20 C.F.R. §§ 404.1520, 416.920, the ALJ must engage in a residual functional capacity analysis.
Id.
§§ 404.1545, 416.945; SSR 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing Residual Func
Plaintiff raises three main arguments challenging the ALJ’s RFC analysis. First, he argues that the ALJ was required to, but did not, perform a function-by-function assessment of Plaintiffs ability to work or include a narrative discussion of how the evidence supported the ALJ’s RFC conclusion. Pl.’s Mot. at 13-16. Second, he argues that the ALJ failed to engage in a detailed assessment of Plaintiffs capacity to perform the mental demands of work. Id. at 16-18. Third, Plaintiff contends that because the ALJ failed to address the severity of Plaintiffs non-HIV impairments at step two, the impairments were therefore not addressed in the RFC. Id. at 19. The Court finds that these arguments are without merit.
First, the ALJ performed a sufficient function-by-function assessment and provided a sufficient narrative in support thereof. Plaintiff is correct that SSR 96-8p requires the ALJ to assess a claimant’s “work-related abilities on a function-by-function basis” and instructs that “[o]nly after that may RFC be expressed in terms of exertional levels of work....” SSR 96-8p,
In this case, the ALJ performed a sufficient function-by-funetion assessment of all functions for which the record included evidence of limitations. The ALJ’s conclusion regarding Plaintiffs physical RFC stated as follows:
After observing and listening to the claimant’s testimony, this [ALJ] is convinced that the claimant can engage in substantial gainful activity. The undersigned finds that claimant’s testimony concerning his impairments and their impact on his ability to work are not entirely credible to the extent alleged. Specifically, the undersigned noted that although the claimant alleges that he has HIV positive, he has been working part time as a patient escort at least 20 hours per week. Furthermore, the undersigned notes that although the claimant tested positive for HIV, the medical evidence fails to document a listing level impairment or an impairment individually [or] in combination that would preclude the claimant from engaging in work for any 12-month continuous period. Even though the claimant has some weakness and numbness in his arms andlegs, the medical evidence does not support any serious muscle weakness or loss of control due to nerve damage.
A.R. at 18. With respect to Plaintiffs mental RFC, the ALJ further concluded that:
The claimant alleged having depression and having some memory problems. Specifically, the medical evidence shows that the claimant is able to think, communicate, and act in his own interest. He is able to perform activities of daily living independently and care for his own personal needs. Furthermore, the claimant can follow basic instructions. The claimant demonstrated a good ability at the hearing to understand, remember and respond to the questions posed by both the undersigned [ALJ] and his legal representative [albeit not always credible].
Id.
Based on these observations, the ALJ concluded that Plaintiff “retains the residual functional capacity to perform light work and alternatively sedentary work activity within the limits of the specific residual functional capacity determined.” Id. Specifically, the ALJ determined that Plaintiffs ability to perform light and sedentary work was limited as follows:
[B]orderline intellectual [functioning] with the need for work of a low stress routine nature [i.e. requiring no more than moderate attention and concentration, persistence and pace for prolonged periods] and having the ability to occasionally climb stairs and ramps and balance and stop, and occasionally kneel and crouch but no crawling; no concentrated exposure to dusts, fumes, chemicals, poor ventilation or excessive humidity or wetness or excessive vibrations; while experiencing moderate 5 pain; with moderate [as defined] limitations as to the ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances and work in coordination or proximity to others without distracting them or being distracted by them.
Id. at 21-22. In reaching these findings, the ALJ explicitly noted that he was “granting the claimant some benefit of doubt with respect to some of the postural limitations in the light of limited medical evidence to specifically support the same.” Id. at 21.
While Plaintiff claims that the ALJ’s “residual functional capacity assessment is nothing more than a naked conclusion, devoid of analysis,” Pl.’s Mot. at 15, even a cursory glance at the passages above makes clear that the ALJ carefully considered and evaluated the medical evidence in the record and included an adequate narrative explaining how the evidence supported his conclusions. Moreover, consideration of the ALJ’s decision, and the passages cited above in particular, the Court finds that the ALJ adequately identified inconsistencies in the record and explained how he arrived at his conclusions. The ALJ carefully explained why he discredited Plaintiffs own contradictory statements about his impairments. In addition, the ALJ noted that where the record evidence was limited, he gave Plaintiff the benefit of the doubt and resolved any inconsistencies in Plaintiffs favor.
In addition, while Plaintiff is correct that the ALJ did not specifically list the work-related functions itemized on Dr. Cott’s mental residual functional capacity assessment, Plaintiff does not cite any case supporting the supposition that an ALJ’s opinion must include such an itemization. Pl.’s Mot. at 18. Moreover, as review of the ALJ’s decision demonstrates, the ALJ explicitly cited to Dr. Cott’s general findings in her mental residual functional capacity assessment that Plaintiff shows only “moderate limitations to no significant limitations.” A.R. at 17. None of Plaintiffs functions in Dr. Cott’s assessment were “markedly limited.” Id. at 232-33. Furthermore, the ALJ specifically incorporated Dr. Cott’s findings that Plaintiff was moderately limited in certain areas relating to understanding and memory, concentration and persistence, social interaction, and adaption. See id. at 19-20 (taking in account Plaintiffs moderate limitations in “attention and concentration;” “persistence and pace;” “ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances;” and ability to “work in coordination or proximity to others without distracting them or being distracted by them”).
Third, Plaintiff contends that because the ALJ failed to address the severity of Plaintiffs non-HIV impairments at step two, the impairments were therefore not addressed in the RFC. PL’s Mot. at 19. This argument is equally without merit. Even assuming that the ALJ erroneously failed to find the Plaintiffs peripheral neuropathy, depression, and borderline intellectual functioning were severe at step two of the sequential analysis, this failure does not automatically mean that the ALJ’s RFC analysis was also inadequate. An RFC is based on a consideration of “all ... medically determinable impairments of which ... [the ALJ is] aware, including ... medically determinable impairments that are not “severe.”” 20 C.F.R. § 404.1545(a)(2) (emphasis added). Accordingly, an ALJ should consider even those impairments found to be non-severe in evaluating a claimant’s RFC. In this case, review of the final decision demonstrates that the ALJ did just that. As noted above, the ALJ took into consideration Plaintiffs non-HIV impairments — to the extent he found them credible — in evaluating Plaintiffs RFC. The Court therefore finds that the ALJ did not legally err in analyzing Plaintiffs RFC.
The ALJ determined at step four that Plaintiff had the ability to return to his past relevant work as a data entry clerk. A.R. at 18. The ALJ also ruled in the alternative at step five that, based on the VE’s testimony, Plaintiff was capable of performing one of several “light/sedentary” jobs available in significant numbers in the national economy, including cashier, office helper, sales, administrative support person, order clerk, and charge account clerk.
Id.
at 20. Plaintiff argues that these findings were both in error.
See
Pl.’s Mot. at 19-27. The Court does not agree. Review of the record in this case demonstrates that the ALJ’s findings at step five are supported by substantial evidence in the record. Although the propriety of the ALJ’s findings at step four is a closer question, the Court need not decide this issue given its conclusion below that the ALJ’s alternative disposition at step five is supported by substantial evidence.
See Smith v. Astrue,
Turning then to Plaintiffs arguments regarding the ALJ’s determination at step five, Plaintiff argues that this alternative finding was in error for two reasons. First, Plaintiff contends that the ALJ’s failure to consider Plaintiffs non-HIV impairments at step two “carried forward through the sequential process to the hypothetical question to the VE.” PL’s Mot. at 23. This argument can easily be disposed of for the same reasons the Court has already discussed above. See supra p. 96. Specifically, even assuming that the ALJ erred in finding that Plaintiffs non-HIV impairments were non-severe at step two of the sequential analysis, this failure does not mean that the ALJ’s RFC analysis was also inadequate; to the contrary, as discussed above, the ALJ appropriately considered Plaintiffs peripheral neuropathy, depression, and borderline intellectual functioning in assessing Plaintiffs RFC. Plaintiffs argument on this point is therefore without merit.
Second, Plaintiff argues that the VE’s testimony conflicts with the occupational information contained in The Dictionary of Occupational Titles (“DOT”), and that the ALJ therefore erred when he relied on the VE’s testimony. PL’s Mot. at 23-27. As indicated above, the VE testified in response to the ALJ’s hypothetical questions that significant employment opportunities existed in both “light duty, unskilled work” and in “sedentary unskilled work,” and identified the following positions available in each category: (1) with respect to the “light duty, unskilled work” category, the VE indicated the individual could work as a cashier, office helper, and sales attendant; and (2) with respect to the latter “sedentary unskilled work” category, the VE testified that the individual could perform work as an administrative support worker (such as an addresser), an order clerk, and a charge account clerk. A.R. at 528-29. According to Plaintiff, these conclusions were in error because the DOT indicates that the jobs identified by the VE each require a reasoning development level of 2 or 3 but Plaintiff was limited to performing only simple instructions, which Plaintiff argues corresponds under the DOT’s General Educational Development to a reasoning level of l. 6 PL’s Mot. at 23-26.
Plaintiff has not directed the Court to any evidence in the record indicating otherwise. Indeed, Plaintiff has failed to cite to or otherwise indicate which portion(s) of the Administrative Record he believes supports his present assertion that he was limited to performing simple instructions. Nonetheless, from the Court’s own review, it appears likely that Plaintiff may be relying on the medical reports completed by Dr. Schiff and Dr. Cott — in particular, their statements that Plaintiff was capable of performing simple tasks and routines. A.R. at 217-19, 236-49. Significantly, however, although Dr. Schiff and Dr. Cott observed that Plaintiff was capable of performing simple tasks, neither concluded that Plaintiff was limited to performing only work involving simple tasks or routines. To the contrary, Dr. Schiff determined that Plaintiff had “moderately good, if somewhat erratic, success with more complex or detailed tasks and instructions.” Id. at 218. Similarly, Dr. Cott reported that Plaintiff had no marked limitations in any of his mental residual functional capacities and had only moderate limitations in his ability to understand, remember, and carry out detailed instructions. Id. at 232-33. As noted above, the ALJ took these findings into consideration in assessing Plaintiffs RFC and in framing the hypothetical questions to the VE.
In addition, Plaintiff argues that the ALJ wrongly relied on the VE’s testimony
IV. CONCLUSION
Based on the foregoing review of the relevant law and the administrative record, the Court finds that the Administrative Law Judge applied the correct legal standards when he denied Plaintiffs claim for Supplemental Security Income Benefits and Disability Insurance Benefits, and that his conclusions are supported by substantial evidence. The Court shall therefore DENY Plaintiffs [8] Motion for Judgment of Reversal and GRANT Defendant’s [11] Motion for Judgment of Affirmance. This case shall be dismissed in its entirety. An appropriate Order accompanies this Memorandum Opinion.
Notes
. Plaintiffs Complaint named as Defendant the then-Commissioner of Social Security, Jo Anne B. Barnhart. As Ms. Barnhart was sued in her official capacity, the Court has substituted the current Commissioner of Social Security, Michael J. Astrue, as Defendant pursuant to Federal Rule of Civil Procedure 25(d).
. Plaintiff's application alleged that his disability commenced on April 27, 2001. At his administrative hearing, however, Plaintiff amended his alleged onset date to January 28, 2002. A.R. at 13.
. Paragraph (c) identifies the following "four broad functional areas:” (1) "activities of daily living;” (2) "social functioning;” (3) "concentration, persistence, or pace;” and (4) "episodes of decompensation.” 20 C.F.R. § 404.1520a(c)(3).
. SSR 96-8p specifically instructs the ALJ to consider the functions in paragraphs (b), (c), and (d) of 20 C.F.R. § 416.945, which include physical abilities (sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions including manipulative or postural functions), mental abilities (understanding, remembering, carrying out instructions, responding appropriately to supervision, coworkers, and work pressures in a work setting), and other abilities affected by impairments (including specifically, impairments of vision). 20 C.F.R. § 416.945.
. The ALJ defined "moderate” as "a level of severity to preclude the attention and concentration required for high stress production oriented work and complex work but not of a level of severity or magnitude to preclude the attention and concentration required for less stressful work of an unskilled or semi-skilled nature involving simpler work instructions with the term simpler being used as is customarily used in normal work rules and not referring to sheltered work shop type work.” A.R. at 22.
. Each of the job descriptions in the DOT contains a "definition trailer” that sets forth a number of selected occupational characteristics and requirements of the occupation,