Cox v. Berryhill

• Court: District Court, District of Columbia
• Decided: January 19, 2022
• Docket: Civil Action No. 2018-2389
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANGELA M. COX,

Plaintiff,

v. Civil Action No. 18-cv-2389-FYP-GMH

KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration,

Defendant.

MEMORANDUM OPINION

Plaintiff Angela Cox sought disability benefits from the Social Security Administration

(“SSA”) in 2014. The agency’s administrative law judge (“ALJ”) denied her claims in 2018.

After the SSA’s Appeals Council declined to review her case, she filed suit in this Court. In her

Motion for Reversal and Award of Benefits, Plaintiff argues that the SSA’s application of the

2017 Listing regulations to her 2014 claim was impermissibly retroactive; and alleges a host of

other analytical and factual errors by the ALJ. The Defendant Commissioner of the SSA

counters with a Motion for Judgment of Affirmance, arguing that application of the 2017

Listings was proper, and that the ALJ’s decision was supported by substantial evidence.

The instant case was referred to Magistrate Judge G. Michael Harvey, who issued his

Report and Recommendation on September 1, 2020. Magistrate Judge Harvey recommended

granting Plaintiff’s Motion for Reversal in part, denying Defendant’s Motion for Affirmance,

and remanding the case for further proceedings. Both parties object to aspects of his Report and

Recommendation. Because this Court agrees with the Magistrate Judge that the ALJ’s application of the 2017 regulations to Cox’s claim was impermissibly retroactive, it adopts the

Magistrate Judge’s Report and Recommendation, vacates the SSA’s decision, and remands to the

agency for further proceedings. The Court also considers the additional claims of error raised by

Plaintiff.

BACKGROUND

Cox is 55 years old; she has an IQ of 61 and a sixth-grade education. See ECF No. 1

(Complaint) at 1; ECF 11 (Administrative Record) at 99. She applied for disability benefits from

the SSA on May 20, 2014. See AR at 66. In her application, Cox cited depression and learning

difficulties as her disabling conditions. Id. The SSA denied her claims on September 19, 2014.

Id. at 74–75; 112–14.

Cox then filed another application for disability benefits on November 24, 2014, also

identifying depression and learning difficulties as her disabling conditions. Id. at 77. The SSA

again denied her claims on June 15, 2015. Id. at 85–86. Cox proceeded to request

reconsideration on August 18, 2015, at which time she supplemented her application, stating that

she began “hearing voices” and became “afraid to go out” beginning in May 2015. Id. at 88–98;

see id. at 118. The SSA denied her request in December 2015. Id. at 97–98, 100–11, 115–17.

Cox then requested a hearing before an ALJ. Id. at 127–28.

ALJ Andrew Emerson held a hearing in Cox’s case on January 8, 2018. Id. at 34–64.

After the hearing, the ALJ issued a decision on April 4, 2018, concluding that Cox was not

disabled under the Social Security Act. Id. at 16–28. In deciding Cox’s case, the ALJ applied

the agency’s Revised Medical Criteria for Evaluating Mental Disorders (“2017 Listings”), which

were finalized in 2016 and became effective on January 17, 2017. Cox requested review by the

Appeals Council, which declined to revisit the ALJ’s decision. The ALJ’s decision thus became

2 the final decision of the Commissioner on August 28, 2018. Id. at 1–3, 7–8.

Cox filed her Complaint in this Court on October 17, 2018, challenging the SSA’s final

decision. See generally Compl. The case was referred to Magistrate Judge G. Michael Harvey

for full case management. See Minute Order, dated Nov. 19, 2018. Cox submitted a Motion for

Reversal of Judgment and Award of Benefits on April 2, 2019, which attacked the ALJ’s

application of the 2017 Listings to her claim and faulted him for committing numerous analytical

and factual errors. See generally ECF No. 16 (Plaintiff’s Motion for Reversal); ECF No. 16-1

(Plaintiff’s Memorandum Supporting Motion for Reversal). To remedy the alleged errors,

Plaintiff asks the Court to “nullify the retroactive [regulations],” find her disabled, and “remand

for [an] award of benefits.” Pl. Mot. at 3. The next month, Defendant filed her Motion for

Judgment of Affirmance and Opposition to Plaintiff’s Motion. See ECF No. 18 (Defendant’s

Motion for Affirmance). Defendant argues that the SSA’s decision was legally sound and

supported by substantial evidence. Id. at 1, 31.

On September 1, 2020, Magistrate Judge Harvey issued his Report and Recommendation

in this case. See ECF No. 27 (Report & Recommendation). He recommended granting

Plaintiff’s Motion for Reversal in part, denying Defendant’s Motion for Affirmance, and

remanding the case for further proceedings before the ALJ. See Report & Recommendation at 2,

16, 50–51. The Magistrate Judge determined that the ALJ’s application of the 2017 Listings to

Cox’s claim was impermissibly retroactive, and that the ALJ erred in failing to apply a

presumption that Cox’s IQ remained stable over time. Id. at 15–30. Yet because the record was

“not clear that application of the proper listing” would “mandate[] an award of benefits,” the

Magistrate Judge recommended that the case be remanded to the ALJ, with instructions to apply

the Listings in effect when Plaintiff filed her claim and to employ the presumption about the

3 stability of her IQ. Id. at 51. The Magistrate Judge also considered other claims of error asserted

by Cox. Id. at 30–50. He rejected her claims that (1) the ALJ failed to develop the record, id. at

33, (2) the ALJ erred in relying on the vocational expert’s testimony, id. at 46, and (3) the ALJ

relied on conflicting testimony from the vocational expert without giving a reasonable

explanation, id. at 47–48. While the Magistrate Judge agreed that the ALJ erred in failing to

provide a narrative discussion of Cox’s illiteracy in his assessment of her residual functional

capacity, id. at 35, 40–41, and in neglecting to support his conclusion that Cox could perform her

past relevant work with substantial evidence, id. at 41–43, the Magistrate Judge deemed those

errors harmless. The Magistrate Judge reasoned that despite the ALJ’s failure to explicitly

include Cox’s illiteracy in his discussion of the RFC, the ALJ nonetheless “included a functional

limitation of illiteracy in his hypothetical” to the vocational expert, which demonstrated that he

considered her illiteracy. Id. at 35. The Magistrate Judge also determined that the ALJ’s error in

finding that Cox could perform her past relevant work was obviated by the ALJ’s alternative

finding that Cox could perform other jobs available in the national economy. Id. at 43.

Cox filed objections to the Magistrate Judge’s Report and Recommendation, see ECF No.

29 (Plaintiff’s Appeal of Magistrate Judge Decision to District Court), and Defendant lodged

additional objections, see ECF No. 34 (Defendant’s Objections).1 Cox argues that the Magistrate

Judge should have found her disabled, recommended an immediate award of benefits, and

addressed her Administrative Procedure Act (“APA”) claims. See generally Pl. Obj. Attacking

the Report and Recommendation from a different angle, the agency contends that the ALJ

1 Seeking to rebut Defendant’s objections and address new issues presented, Cox submitted a Response to Defendant’s Objections and asks the Court to accept it as her reply brief. See ECF No. 36 (Plaintiff’s Response) at 1; ECF No. 37 (Plaintiff’s Motion to File Response). The Court grants Plaintiff’s Motion to file an amended response and will consider the arguments raised in that filing alongside those previously presented.

4 correctly applied the 2017 Listings to Cox’s claim and that Plaintiff would not have been found

disabled even if the ALJ had applied the presumption that IQs remain stable throughout life. See

generally Def. Obj.

LEGAL STANDARD

Local Civil Rule 72.3(c), which mirrors 28 U.S.C. § 636(b)(1), states that “[a] district

judge shall make a de novo determination of those portions of a magistrate judge’s findings and

recommendations to which objection is made.” LCvR 72.3(c); see also Winston & Strawn LLP

v. FDIC, 841 F. Supp. 2d 225, 228 (D.D.C. 2012). District judges, however, are not required to

review those portions of a magistrate judge’s report not objected to. See Thomas v. Arn, 474

U.S. 140, 150–51 (1985). In short, the district judge “may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1)(C); see also LCvR 72.3(c) (“A district judge may accept, reject, or modify, in whole

or in part, the findings and recommendations of the magistrate judge, or may recommit the

matter to the magistrate judge with instructions.”).

Under Section 205(g) of the Social Security Act, district courts review decisions of the

SSA Commissioner to determine whether her findings are supported by substantial evidence in

the record. See 42 U.S.C. § 405(g). “In reviewing an SSA decision, ‘[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive.’” Jones v. Astrue, 647 F.3d 350, 355 (D.C. Cir. 2011) (quoting 42 U.S.C. § 405(g)).

In the realm of Social Security, substantial evidence “means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is

“more than a scintilla, but . . . something less than a preponderance of the evidence.” Fla. Gas

5 Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010) (quoting FPL Energy Me. Hydro

LLC v. FERC, 287 F.3d 1151, 1160 (D.C. Cir. 2002)). The standard of review in Social Security

cases thus calls for “considerable deference to the decision rendered by the ALJ and Appeals

Council.” Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994).

When reviewing the SSA’s decisions, a court must also determine whether the ALJ “has

analyzed all evidence and has sufficiently explained the weight he has given to obviously

probative exhibits.” Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 65 (D.D.C. 2006) (quoting

Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004)). While the ALJ is “entitled to weigh

conflicting opinions and to make his own assessment of their credibility,” Brown v. Bowen, 794

F.2d 703, 709 (D.C. Cir. 1986), the ALJ “cannot merely disregard evidence which does not

support his conclusion.” Martin v. Apfel, 118 F. Supp. 2d 9, 13 (D.D.C. 2000). “[B]ecause the

broad purposes of the Social Security Act require a liberal construction in favor of disability,”

evidence is viewed in the light most favorable to the claimant. Davis, 862 F. Supp. at 4. The

Court, however, “is not permitted to re-weigh the evidence and reach its own determination.”

Maynor v. Heckler, 597 F. Supp. 457, 460 (D.D.C. 1984).

ANALYSIS

The Court first explains the statutory and regulatory landscape governing eligibility for

disability benefits. It then considers whether the SSA’s application of the 2017 Listings to Cox’s

claim was impermissibly retroactive. Deciding that such application was improper, the Court

remands the case to the agency so that it can apply the Listings that were in effect when Plaintiff

filed her claim. The Court then addresses Plaintiff’s arguments attacking other aspects of the

ALJ’s decision.

6 I. Statutory and Regulatory Framework

To qualify for disability benefits under the Social Security Act,2 a claimant must establish

that she is “disabled.” 42 U.S.C. § 423(a)(1)(E). An individual is considered “disabled” if she is

unable “to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A).

Additionally, an individual can be determined to be disabled “only if [her] physical or mental

impairment or impairments are of such severity that [s]he is not only unable to do [her] previous

work but cannot, considering [her] age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

The SSA uses a five-step process to determine whether a claimant is disabled under the

Social Security Act. See 20 C.F.R. § 404.1520(a)(4). First, the claimant must show that she is

not presently engaged in “substantial gainful activity.” Id. § 404.1520(a)(4)(i). Second, she

must demonstrate that she has a single or combination of “severe medically determinable

physical or mental impairment[s],” id. § 404.1520(a)(4)(ii), which “significantly limit[]” her

ability to perform “basic work activities,” id. § 404.1520(c). Third –– and the most critical step

for Cox’s challenge –– the claimant must show that her impairment is one of those listed in

Appendix 1 to the Commissioner’s regulations. Id., pt. 404, subpt. P, app. 1 (providing Listing

of Impairments). A claimant who succeeds at Step 3 is conclusively deemed disabled and is

2 Although the documents cited by the ALJ show that Cox is contesting the denial of her disability benefits application, the ALJ cites to regulatory provisions governing Supplemental Security Income payments. See AR at 16 (stating that November 24, 2014, application was for “supplemental security income”); but see AR at 77 (showing November 24, 2014, application was for “DI,” i.e., disability insurance). This discrepancy is of no import, however, as the same standards apply to both sets of claims, even though the standards are codified in different parts of the U.S. Code and the Code of Federal Regulations.

7 entitled to disability benefits. Id. § 404.1520(d).

If the claimant cannot satisfy the requirements of the SSA’s Listings, the Commissioner

proceeds to assess the claimant’s residual functional capacity (“RFC”). Id. § 404.1520(e). The

RFC reflects “the most [the claimant] can still do despite [her] limitations.” Id.

§ 404.1545(a)(1); accord Ross v. Astrue, 636 F. Supp. 2d 127, 132 (D.D.C. 2009). After

evaluating the claimant’s RFC, the Commissioner proceeds to Step 4, where she assesses

whether the claimant has shown that, given her RFC, she cannot perform her “past relevant

work.” 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant proves successful, the burden then shifts

to the Commissioner at the fifth and final step to show that the claimant is still capable of

“mak[ing] an adjustment to other work” available in the national economy based on her RFC,

age, education, and work experience. Id. § 404.1520(a)(4)(v); cf. Butler v. Barnhart, 353 F.3d

992, 997 (D.C. Cir. 2004) (“The claimant carries the burden of proof on the first four steps.”). If

the claimant can adjust to other work, then she is not disabled. But if she cannot, the claimant is

disabled and thus eligible for disability benefits.

II. SSA’s Listing Regulations

A. Listing 12.05C and 2017 Revisions

When Cox filed her claim in 2014, the regulations then in effect included Listing 12.05C,

which qualified claimants as conclusively disabled at Step 3 if they met three requirements: (1)

“significantly subaverage general intellectual functioning with deficits in adaptive functioning

initially manifested during the developmental period,” i.e., before the age of 22; (2) “[a] valid

verbal, performance, or full scale IQ of 60 through 70;” and (3) “a physical or other mental

impairment imposing an additional and significant work-related limitation of function.”

8 20 C.F.R. pt. 404, subpt. P, App. 1, § 12.05C (2014) (relevant regulations on pages 514–15).3

At the time that Cox filed her claim, however, the SSA was in the process of overhauling

its regulations.4 In 2016, while her claim was still pending, the SSA issued its Final Rule (which

would become the 2017 Listings), titled “Revised Medical Criteria for Evaluating Mental

Disorders.” See 81 Fed. Reg. 66,138–78 (2016) (codified at 20 C.F.R. pt. 404, subpt. P, app. 1).

The 2017 Listings deleted the previous Listing 12.05C, while revising Listing 12.05B. The

revised Listing 12.05B still allowed a finding of “[i]ntellectual disorder” based on an IQ of 70 or

below, provided that the disorder began prior to the age of 22, but also required more stringent

proof of deficits in adaptive functioning, i.e.: “significant deficits in adaptive

functioning . . . manifested by an extreme limitation of one, or marked limitation of two, in the

following areas of mental functioning: (a) understand[ing], remember[ing] or apply[ing]

information; (b) interact[ing] with others; (c) concentrat[ing], persist[ing], or maintain[ing] pace;

or (d) adapt[ing] or manag[ing] oneself.” See 81 Fed. Reg. 66,167 (2016).5

3 In relevant part, the 2014 Listing for “[i]ntellectual disability,” Section 12.05, provides as follows:

12.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. . . .C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.

20 C.F.R. pt. 404, subpt. P, App. 1, § 12.05C. 4 In 2003, the Administration published an Advanced Notice of Proposed Rulemaking, informing the public that it planned to revise “the rules [it] use[s] to evaluate mental disorders,” and soliciting comments from interested parties. See 68 Fed. Reg. 12,639 (2003). The agency followed up in 2010 with a Notice of Proposed Rulemaking (“NPRM”), which explained that the SSA “propose[d] to revise the criteria in the Listing[s] . . . involving mental disorders” to “reflect [its] adjudicative experience, advances in medical knowledge, recommendations from a report [it] commissioned,” and previous comments from experts and the public. See Revised Medical Criteria for Evaluating Mental Disorders, 75 Fed. Reg. 51,336–68 (2010); Def. Obj. at 15–16. 5 In relevant part, the 2017 revision of Section 12.05B provides that an “Intellectual disorder” may be “satisfied” by meeting the following criteria:

1. Significantly subaverage general intellectual functioning evidenced by . . . [a] full scale

9 The agency made the 2017 Listings effective on January 17, 2017, and provided that the

2017 Listings would apply to cases pending as of that date. Id. at 66,138. The SSA specified:

The prior rules will continue to apply until the effective date of these final rules. When the final rules become effective [on January 17, 2017], we will apply them to new applications filed on or after the effective date of the rules, and to claims that are pending on or after the effective date.

Id. (emphasis added). The agency further stated its expectations for federal courts reviewing its

decisions and for agency proceedings on remand:

We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the effective date of these final rules, we will apply these final rules to the entire period at issue in the decision we make after the court’s remand.

Id. at n.1.

B. Application of the 2017 Listings to Cox’s Claims

ALJ Emerson applied the revised 2017 Listings to Plaintiff’s claim and did not consider

whether Cox was eligible for benefits under the previous Listing 12.05C. See AR at 21–22

(considering whether Cox qualified for revised 12.05A or 12.05B Listings). Cox argues that

applying the revised regulations to her 2014 claim was impermissibly retroactive, see Pl. Mot. at

18, and the Magistrate Judge agreed, see Report & Recommendation at 15–30. The agency,

(or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; . . . and 2. Significant deficits in adaptive functioning currently manifested by an extreme limitation of one, or marked limitation of two, in the following areas of mental functioning: a. Understand, remember, or apply information (see 12.00E1); or b. Interact with others (see 12.00E2); or c. Concentrate, persist, or maintain pace (see 12.00E3); or d. Adapt or manage oneself (see 12.00E4); and 3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.

See 81 Fed. Reg. 66,167 (2016).

10 however, contends that the “ALJ’s application of the 2017 mental listings to Plaintiff’s claim

was not impermissibly retroactive because it did not impair rights Plaintiff possessed at the time

she acted,” did not upset her reliance interests, and did not involve substantively different

standards. See Def. Obj. at 3–8 (citing Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 280 (1994);

and Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 859 (D.C. Cir. 2002)).

The Supreme Court has stated that “[r]etroactivity is not favored in the law.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). “Elementary considerations of

fairness dictate that individuals should have an opportunity to know what the law is and to

conform their conduct accordingly; settled expectations should not be lightly disrupted.”

Landgraf, 511 U.S. at 265. As a result, “the ‘principle that the legal effect of conduct should

ordinarily be assessed under the law that existed when the conduct took place has timeless and

universal appeal.’” Id. (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,

855 (1990) (Scalia, J., concurring)). Thus, “congressional enactments and administrative rules

will not be construed to have retroactive effect unless their language requires this result.”

Bowen, 488 U.S. at 208. As a corollary, “a statutory grant of legislative rulemaking authority

will not . . . be understood to encompass the power to promulgate retroactive rules unless that

power is conveyed by Congress in express terms.” Id.

Both parties agree that the SSA cannot promulgate retroactive rules. See Report &

Recommendation at 16 (“[N]either party disputes that the Commissioner lacks retroactive

rulemaking authority.”); 42 U.S.C. § 405(a) (withholding retroactive rulemaking authority from

the SSA). The Court’s task is therefore to determine whether application of the 2017 Listings to

the claim that Cox filed in 2014 was retroactive. In Landgraf v. U.S.I. Film Products, the

Supreme Court noted that a regulation operates retroactively if it “impair[s] rights a party

11 possessed when he acted, increase[s] a party’s liability for past conduct, or impose[s] new duties

with respect to transactions already completed.” See 511 U.S. at 280. A court’s determination

that “a particular rule operates ‘retroactively’ comes at the end of a process of judgment

concerning the nature and extent of the change in the law and the degree of connection between

the operation of the new rule and a relevant past event.” Id. at 270.

The D.C. Circuit has provided guidance on how that “process of judgment” should take

place. See Nat’l Mining Ass’n, 292 F.3d 849. In National Mining Association, mine operators,

insurance companies, and a mining trade association challenged the Secretary of Labor’s

revisions to regulations governing the adjudication of miners’ claims under the Black Lung

Benefits Act, which “provid[ed] benefits to coal miners who are totally disabled due to . . . black

lung disease.” Id. at 854–55. Appellants attacked several of the Secretary’s new rules as

impermissibly retroactive. Id. at 859. In the first part of the process prescribed by

Landgraf — which requires consideration of the “nature and extent of the change in the law,” see

511 U.S. at 280 — the Court of Appeals determined that “[t]he critical question is whether a

challenged rule establishes an interpretation that ‘changes the legal landscape.’” Nat’l Mining

Ass’n, 292 F.3d at 859 (quoting Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 423 (D.C.

Cir. 1994)). The court elaborated that “[t]his inquiry involves a commonsense, functional

judgment about whether the new provision attaches new legal consequences to events completed

before its enactment.” Id. at 859–60 (cleaned up). The key, therefore, is whether “a rule

‘changes the law in a way that adversely affects [a party’s] prospects for success on the merits of

the claim.’” Id. at 860 (quoting Ibrahim v. District of Columbia, 208 F.3d 1032, 1036 (D.C. Cir.

2000)). As for the second part of the Landgraf analysis — which requires examination of “the

degree of connection between the operation of the new rule and a relevant past event,” see 511

12 U.S. at 270 — the Court of Appeals held that the relevant past act in the adjudicative context is

the filing of a claim. Nat’l Mining Ass’n, 292 F.3d at 860 (stating that applying substantively

different rules to “pending claims” is impermissibly retroactive); see also id. at 867 (“[I]t would

be unlawfully retroactive to apply the definitions to any claims other than those filed on or after

the regulations’ effective date.”) (emphasis added). National Mining Association thus yielded

the definitive test for retroactivity in this jurisdiction, which is succinctly stated as follows:

In analyzing each new regulation, we first look to see whether it effects a substantive change from the agency's prior regulation or practice. If a new regulation is substantively consistent with prior regulations or prior agency practices, and has been accepted by all Courts of Appeals to consider the issue, then its application to pending cases has no retroactive effect. If a new regulation is substantively inconsistent with a prior regulation, prior agency practice, or any Court of Appeals decision rejecting a prior regulation or agency practice, it is retroactive as applied to pending claims.

Id. at 860.

In this case, the Magistrate Judge correctly applied the National Mining test to find that

the ALJ’s application of the 2017 Listings to Cox’s claim was impermissibly retroactive. See

Report & Recommendation at 16, 19, 22–23. The Magistrate Judge embarked on his analysis of

the retroactivity question by examining whether the 2017 Listings effected a substantive change

from the 2014 Listings. Id. at 23. He determined that “the revised 201[7] Listing altered the

standard for evaluating intellectual disability claims and ‘raised the bar’ for claimants like Cox

seeking to establish disability based on an intellectual disorder.” Id. at 23, 26–28. The Court

agrees with his conclusion. Previously, Cox could have received disability benefits upon

proving, under Listing 12.05C, that she had (1) “significantly subaverage general intellectual

functioning with deficits in adaptive functioning initially manifested during the developmental

period,” i.e., before the age of 22; (2) an IQ of 60 to 70; and (3) “a physical or other mental

13 impairment imposing an additional and significant work-related limitation of function.” See

20 C.F.R. pt. 404, subpt. P, App. 1, § 12.05C (2014). Cox argues that she meets these criteria.

See Pl. Mot. at 1; see also Report & Recommendation at 26 (“It appears from the record . . . that

Plaintiff might meet the three requirements of 12.05C in the 2014 Listing.”). With respect to the

second two requirements of Listing 12.05C, Cox’s IQ is 61, see AR at 541; and the ALJ found

that she had three severe impairments, namely learning disorder, depressive disorder, and anxiety

disorder, which “significantly limit [her] ability to perform basic work activities,” see AR at 18.

As for the requirement that her intellectual disorder initially manifested before age 22, Cox is

entitled to rely on the presumption that IQ “remain[s] stable over time in the absence of a change

in a claimant’s intellectual functioning.” Report & Recommendation at 28 (quoting Maresh v.

Barnhart, 438 F.3d 897, 900 (8th Cir. 2006)). The Magistrate Judge determined that the ALJ

erred in failing to apply this presumption of intellectual stability; and observed that with the

benefit of the presumption, “Plaintiff may well have met . . . 12.05C’s final

requirement . . . because there does not appear to be any evidence in the record of a sudden

trauma that could have been its cause.” Id.6

The revised 2017 Listings, however, removed that avenue for proving disability and

instead required Cox to meet more stringent standards under revised Listing 12.05B. Under the

2017 Listing, Cox had to prove the first two elements of the previous Listing 12.05C, and also

had to show that she had “significant deficits in adaptive functioning currently manifested by an

extreme limitation of one, or marked limitation of two, in the following areas of mental

6 The Magistrate Judge recommended a remand to the SSA so that the ALJ could apply the presumption that a claimant’s IQ remains stable over time. See id. at 15–16. Neither party disputes that the ALJ erred in failing to apply the presumption. Rather, both parties argue only that they should prevail once the presumption is applied. See Pl. Obj. at 3, 18; Def. Obj. at 8. Those are arguments that should be made to the ALJ on remand.

14 functioning”: the ability to “[u]nderstand, remember, or apply information;” to “[i]nteract with

others; to “[c]oncentrate, persist, or maintain pace;” and to “[a]dapt or manage oneself.” See 81

Fed. Reg. 66,167 (2016). The ALJ determined that she did not meet the altered criteria in the

revised Listing 12.05B and therefore subjected her to the additional hurdles imposed by Steps 4

and 5 of the SSA’s disability analysis. See AR at 22–28; supra 6–7. The new regulations thus

“change[d] the legal landscape” of Cox’s quest to receive disability benefits. See Nat’l Mining

Ass’n, 292 F.3d at 864; Report & Recommendation at 30; AR at 62 (quoting ALJ Emerson as

commenting that the new Listings differed from previous Listing 12.05C). The 2017 Listings

were therefore impermissibly retroactive as applied to Cox’s claim, which was pending when the

new rules came into effect on January 17, 2017. See Nat’l Mining Ass’n, 292 F.3d at 860; 81

Fed. Reg. 66,138 (2016).

The Commissioner nevertheless strongly contests the Magistrate Judge’s conclusion.

See, e.g., Def. Obj. at 1–7. Defendant argues that the SSA is imbued with broad statutory

authority to promulgate regulations, that the regulatory text makes clear that the 2017 Listing for

intellectual disability applies to Plaintiff’s case, and that “the final rule [establishing the 2017

Listings] is not retroactive.” Id. at 11–12, 15. The SSA insists that the agency properly applied

the revised regulations to claims pending on or after the effective date, as directed by the 2017

Listings themselves. See Def. Mot. at 15. Indeed, it appears that the SSA would consider the

application of a rule retroactive only if the agency reopened a final determination and used the

new standard to adjudicate previously decided claims. See id. at 16; Report & Recommendation

at 17. The Court rejects this cramped definition of retroactivity, as it does not comport with

National Mining Association’s instruction that a new regulation that “is substantively

inconsistent with a prior regulation” is “retroactive as applied to pending claims.” See Nat’l

15 Mining Ass’n, 292 F.3d at 860. Defendant further argues that the 2017 Listing for intellectual

disability is “obvious[ly]” and “notabl[y]” similar to the previous Listing and therefore did not

effect a “substantive change” that is impermissibly retroactive. See Def. Obj. at 6–8. That

argument falls flat because it is beyond debate that the revised 2017 Listing required an

additional showing of “deficits in adaptive functioning” in specific categories, which Cox would

not have had to satisfy under the eliminated Listing 12.05C. Compare 20 C.F.R. pt. 404, subpt.

P, App. 1, § 12.05 (2014), with 81 Fed. Reg. 66,167 (2016).

In support of her arguments, the Commissioner cites decisions by other courts that have

allowed the SSA to apply new regulations to pending claims. See Def. Mot. at 15 (citing Ray v.

Comm’r of Soc. Sec., No. civ-18-638, 2019 WL 1474007, at *2–3 (W.D. Okla. Apr. 3, 2019);

Kibe v. Berryhill, No. 18-228, 2019 WL 1226723, at *2–3 & nn.2–3 (W.D. Pa. Mar. 15, 2019);

Harrison v. Berryhill, No. 5:17-cv-255, 2018 WL 4576782, at *4 (E.D.N.C. May 24, 2018)); 7

see also Def. Obj. at 14 (collecting cases where courts decided “application of the revised mental

impairment listings in pending cases is proper”). Those opinions, however, are not binding.

7 In his Report and Recommendation, the Magistrate Judge deftly dispensed with the authorities cited by Defendant. See Report & Recommendation at 23 n.17. He wrote:

[T]he Commissioner relies upon three Social Security cases from outside this jurisdiction. ECF No. 17 at 16–17. Two of those cases, however, sidestepped the issue of retroactivity altogether. Kibe v. Berryhill actually applied the 2014 Listing because it was the rule “in effect at the time the ALJ issued his decision.” No. CV 18-228, 2019 WL 1226723, at *2 (W.D. Pa. Mar. 15, 2019), aff’d sub nom. Kibe v. Comm’r Soc. Sec., 787 F. App’x 801 (3d Cir. 2019). And Harrison v. Berryhill expressly did not decide whether to apply the former or revised listing to the plaintiff’s claim because “the record fail[ed] to establish that [the plaintiff’s] impairments met either Listing.” No. 5:17-CV-00255-FL, 2018 WL 4576782, at *5 (E.D.N.C. May 24, 2018), report and recommendation adopted, 2018 WL 3993393 (E.D.N.C. Aug. 21, 2018). As for the third case — Ray v. Commissioner of Social Security — while it assessed the retroactivity of the revised listing, its analysis is of limited precedential value because it relied primarily on Bradley, a case limited by later Supreme Court and D.C. Circuit caselaw, see supra note 14, and the relevant portion of the analysis is essentially dicta, as the court ultimately found that the plaintiff “would not meet the listing under either set of rules.” No. CIV-18-00638-SM, 2019 WL 1474007, at *3 (W.D. Okla. Apr. 3, 2019).

16 Instead, this Court is obligated to apply National Mining Association, which supports the

Magistrate Judge’s conclusion that the 2017 Listing is impermissibly retroactive as applied to

Cox’s case.

In any event, whether the application of new SSA regulations to pending cases is

retroactive remains an unsettled question in other circuits. See Portlock v. Barnhart, 208 F.

Supp. 2d 451, 457 (D. Del. 2002) (indicating it was “troubled” by courts’ “lack of agreement” on

retroactivity question); Kokal v. Massanari, 163 F. Supp. 2d 1122, 1129–30 (N.D. Cal. 2001)

(noting limited and differing authorities on retroactive application of Listing 9.09 for obesity);

Gerald v. Berryhill, No. 3:17-cv-5752018, 2018 WL 7364649, at *12 (M.D. Pa. Oct. 12, 2018)

(collecting divergent cases on whether SSR 16-3p applies retroactively). The decisions finding

no retroactive effect “are marked by surprisingly little analysis of the problems associated with

that conclusion.” Portlock, 208 F. Supp. 2d at 459; see, e.g., Fulbright v. Apfel, 114 F. Supp. 2d.

465, 476 (W.D.N.C. Sept. 11, 2000) (simply stating that new regulation was “law in effect”);

Rowden v. Saul, No. civ-19-361, 2020 WL 1172714, at *6 (same); Glenn v. Massanari, No. civ-

00-4184, 2001 WL 1003075, at *2 (E.D. Pa. Aug. 27, 2001) (emphasizing that text of SSA’s

new rule clearly applied to pending claims).8 Given the paucity of persuasive analysis in those

opinions, the Court is not inclined to give them any weight.

Defendant deploys several other arguments to defend the agency’s application of the

revised rules. The Commissioner argues that a “court must ‘apply the law in effect at the time it

renders its decision, unless doing so would result in manifest injustice or there is a statutory

8 Defendant similarly argues that the regulations themselves specifically stated that they would apply to pending applications. See Def. Mot. at 12. Although the regulations must clearly convey that they apply to previously filed claims to overcome the presumption against retroactivity, clear regulatory text cannot imbue the SSA with retroactive rulemaking authority. See 42 U.S.C. § 405(a) (withholding retroactive rulemaking authority from the SSA); Report & Recommendation at 16.

17 direction or legislative history to the contrary.’” Def. Mot. at 15 (relying on Bradley v. Sch. Bd.

of Richmond, 416 U.S. 696, 711 (1974)); id. at 16. As the Magistrate Judge pointed out,

however, four decades have passed since the Supreme Court decided Bradley, and the case “has

been narrowed to apply to remedial provisions, not substantive obligations or rights under a

statute,” such as those at issue in this case. See R. & R, at 20 n.14; Gersman v. Grp. Health

Ass’n, Inc., 975 F.2d 886, 898–99 (D.C. Cir. 1992) (“[T]he Bradley presumption of applicability

of law as of the time of decision must pertain to remedial provisions — not substantive

obligations or rights under a statute.” (cleaned up)).

Nor is the Court persuaded by the Commissioner’s reading of Landgraf, 511 U.S. at 244,

or her proposed interpretation of National Mining Association, 292 F.3d 849. See Def. Obj. at 3–

8. Specifically, Defendant argues that applying the revised rules “did not impair rights Plaintiff

possessed at the time she acted, increase her liability for past conduct, or impose new duties with

respect to transactions already completed.” Def. Obj. at 3 (citing Landgraf, 511 U.S. at 280; and

Nat’l Mining Ass’n, 292 F.3d at 859); see id. at 4–5. In the agency’s view, the 2017 regulations

did not impair Cox’s rights because plaintiffs like Cox lack any substantive right to benefits, as

even the “recipients of public benefits have no substantive right that guarantees them continued

receipt of those benefits.” Id. at 3–4. As applied to Cox, this argument is belied by the caselaw

prohibiting retroactive changes to regulations, discussed supra. Changing the standards that

apply to the adjudication of Cox’s claim while her case is pending would very much impair the

rights that she had when she initially filed her claim. See Landgraf, 511 U.S. at 280; Pl. Resp. at

14; see also Lindh v. Murphy, 521 U.S. 320, 327 (1997) (“[R]evisions of prior law to change

standards of proof and persuasion in a way favorable to a [party] . . . affect[s] substantive

entitlement to relief.”). Because the revised rules indeed “impair[ed] rights [that Cox] possessed

18 at the time she acted,” they were impermissibly applied to her claims.9 Landgraf, 511 U.S. at

280.

Further, the Commissioner contends that the new regulations did not upset any of Cox’s

reliance interests. See Def. Obj. at 4–5. While reliance interests are relevant in retroactivity

jurisprudence, see Landgraf, 511 U.S. at 1499, the test for whether a rule is impermissibly

retroactive is more specific than merely assessing whether a plaintiff relied on the previous rule:

it requires determining whether a new rule effects a substantive change from the agency’s prior

regulation or practice, and examining the rule’s impact on the prior consequences of past actions,

as the Court has done here. See Nat’l Mining Ass’n, 292 F.3d at 860; supra 12–15; cf.

DIRECTV, Inc. v. FCC, 110 F.3d 816, 826 (D.C. Cir. 1997) (stating regulations that merely

“upset[] expectations based on prior law” are not retroactive). That analysis has led the Court to

conclude that applying the 2017 regulations to Cox’s 2014 claim was impermissibly retroactive,

and that the agency must instead apply the regulations that were in place when Cox filed her

claim.

C. Remedy

Having found application of the new rules to Cox’s claim unlawfully retroactive, the

Court must provide an appropriate remedy. Cox argues that she is entitled to an immediate

9 Defendant makes much ado about whether Cox’s right to benefits have “vested.” Def. Obj. at 4. The case she relies on, Abington Mem’l Hosp. v. Burwell, 216 F. Supp. 3d 110, 142 (D.D.C. 2016), does not support the agency’s position. Abington distinguished the “past legal consequences of past actions” from “the future effect of past actions,” when considering whether a Department of Health and Human Services’ rule that adjusted wage data the plaintiff hospitals had submitted before the rule’s enactment operated impermissibly retroactively. See 216 F. Supp. at 143–44; Pl. Resp. at 14–15. The court highlighted that the agency “simply used historical data . . . to calculate the prospective payment rate,” and thus did not tread upon “any vested right of the hospitals.” Abington, 216 F. Supp. 3d at 143–44 (quoting Regents of the Univ. of Cal. v. Burwell, 155 F. Supp. 3d 31, 44 (D.D.C. 2016)). Constructing a wage index to determine future compensation is notably distinct from changing the substantive standard used to evaluate a claim to a statutory right, after the claim has already been filed. See Lindh v. Murphy, 521 U.S. at 327; Pl. Resp. at 14.

19 award of benefits because she meets the requirements of Listing 12.05C, which must be applied

in her case. See Pl. Obj. at 1–2, 19; Pl. Resp. at 7–11. Opposing an award of benefits, the

Commissioner urges the Court to remand the case to the agency. See Def. Obj. at 12–18, 24–25;

Def. Mot. at 17–18.

To obtain a judgment reversing the SSA’s decision and ordering an immediate award of

benefits, plaintiffs must clear a “high bar.” Perkins v. Berryhill, 379 F. Supp. 3d 1, 8 (D.D.C.

2019). Only when “the evidence on the record as a whole is clearly indicative of disability and

additional hearings would serve no purpose other than to delay the inevitable receipt of benefits”

is an immediate award of benefits proper. See Price v. Berryhill, No. 16-2469, 2018 WL

4381098, at *9 (D.D.C. Feb. 14, 2018) (cleaned up); Espinosa v. Colvin, 953 F. Supp. 2d 25, 35–

36 (D.D.C. 2013); Ademakinwa v. Astrue, 696 F. Supp. 2d 107, 111–12 (D.D.C. 2010). When

courts have granted an immediate award of benefits, they have stated that “it would be virtually

impossible for [the ALJ] to find against [the] plaintiff upon remand.” Lockard v. Apfel, 175 F.

Supp. 2d 28, 34 (D.D.C. 2001).

The Court agrees with the Magistrate Judge that an award of benefits is not inevitable in

this case. See Report & Recommendation at 51. While Cox clearly met two of the three criteria

to qualify as disabled under Listing 12.05C, the ALJ could still find that “evidence in the record

rebuts the presumption that the onset of Plaintiff’s intellectual disorder occurred before she was

22-years-old.” Id.; see also id. at 26–27 (finding that Cox satisfied two of Listing 12.05C’s three

criteria). Because of this possibility, the Court is unable to order an immediate award of benefits

for Plaintiff. See Lockard, 175 F. Supp. 2d at 34.10 It therefore concurs with the Magistrate

10 Plaintiff argues that the case should not be remanded so that the agency may “hunt for evidence that her cognitive dysfunction ‘might’ have been drug-induced.” Pl. Obj. at 1. But it is for the ALJ to determine, in the first instance, what evidence should be admitted on remand.

20 Judge that the case should be remanded for the SSA to evaluate Cox’s claims under the Listings

that were in effect when her claim was filed in 2014, with the benefit of the presumption of

stability in her IQ. See Report & Recommendation at 30.

In addition to requesting relief for her individual case, Cox asks the Court to “strike the

language of the final rule regarding retroactive application,” and “restore the 2014 Listing

12.05C to the agency’s regulations.” See Pl. Obj. at 15–16. She contends that the revised rules

violate the APA because the 2017 Listings (1) were issued without proper notice and comment,

(2) were not the logical outgrowth of the agency’s notice of proposed rulemaking, (3) were

arbitrary and capricious, and (4) were in excess of the Commissioner’s statutory authority. See

id. Pl. Obj. at 5, 7–9, 14; Pl. Resp. at 12, 17. Cox argues that the Magistrate Judge erred in

failing to address her APA claims. See Pl. Obj. at 1; Report & Recommendation at 30 n.20. She

also believes that the 2017 Listings must be set aside so that they will not apply on remand or in

continuing disability reviews in her case. See Pl. Obj. at 1 (“[T]he Magistrate's recommended

remedy is ineffective unless the Court eliminates the retroactive application of the 2017 Revised

Mental Criteria.”).

The Court agrees with the Magistrate Judge and Defendant that it not necessary to

consider Plaintiff’s claims under the APA, which challenge the validity of the 2017 Listings. See

Report & Recommendation at 30 n.20; Def. Obj. at 12 (arguing “the proper remedy is to remand

the case with instructions to apply the prior listing”). Because the Court has determined that

Cox’s claim should be assessed under the 2014 Listings that were in effect when she filed her

claim and has ordered a remand for the agency to apply the 2014 regulations, supra at 19–20,

Plaintiff will receive complete relief on this aspect of her claim. Accordingly, there is no need to

address Cox’s challenges to the 2017 Listings, which do not apply to her case.

21 Nor is the Court persuaded that it should strike the 2017 Listings with respect to all cases

that were pending on the effective date, which would essentially provide a nationwide remedy

for Plaintiff’s individual claim. See Def. Obj. at 13. The Court adopts the recommendation of

the Magistrate Judge, who focused specifically on the application of the 2017 Listings to Cox’s

case and did not contemplate a nationwide ruling. See, e.g., Report & Recommendation at 15

(“The undersigned finds that the ALJ’s decision was flawed because it relied on the 2017

Listing, which was impermissibly retroactive as applied to Plaintiff’s pending claim.” (emphasis

added)); id. at 30 & n.20 (“[T]he deletion of 12.05C in the revised 2017 Listing resulted in a

‘substantive change’ that was impermissibly retroactive as applied to the Plaintiff’s pending

disability claim.” (emphasis added)). Plaintiff’s arguments to justify a nationwide remedy are

undeveloped. See Def. Obj. at 13–14. She requests that the Court set aside the 2017 regulations

and argues that the agency violated the APA, but she provides no authority that would support

granting nationwide relief. See Pl. Obj. at 7–9, 22; Johnson v. Panetta, 953 F. Supp. 2d 244, 250

(D.D.C. 2013) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported

by pertinent authority, are deemed waived.” (citations omitted)). The Court would require more

authority and analysis to be convinced of awarding such a sweeping remedy, particularly on this

record, where the Magistrate Judge limited his analysis of retroactivity to the facts of Plaintiff’s

case. Moreover, as discussed, courts in other jurisdictions have issued contrary rulings about the

applicability of the 2017 Listings to cases pending as of their effective date. See supra 16–17;

see also Def. Obj. at 14 (listing cases). Among the courts that previously have found the SSA’s

application of its regulations to be impermissibly retroactive, none has ordered nationwide relief.

See, e.g., Portlock v. Barnhart, 208 F. Supp. 2d at 463; Kokal v. Massanari, 163 F. Supp. 2d at

1136; Cherry v. Barnhart, 327 F. Supp. 2d 1347, 1360 (N.D. Okla. 2004). On the instant record,

22 this Court is not inclined to be the first to do so.

Although Plaintiff asserts that it is necessary to strike the 2017 Listings to prevent the

ALJ from applying them on remand, see Pl. Obj. at 1, the Court expects the agency to comply

with an order of this Court that specifically directs it to apply the Listings in effect in 2014. See

Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (“Deviation from the court’s remand order in the

subsequent administrative proceedings is itself legal error, subject to reversal on further judicial

review.”); Workman v. Saul, 19-cv-1252, 2020 WL 417789, at *4 (D.D.C. Jan. 27, 2020) (citing

Sullivan, 490 U.S. at 886). Moreover, the agency has taken the position before this Court that it

is bound to follow the Court’s directives on remand and during any continuing disability review

in Cox’s case. See Def. Obj. at 12–13 (citing Sullivan, 490 U.S. at 886); 20 C.F.R.

§ 416.994(b)(2)(iv)(A) (stating that adjudicator in continuing disability review applies “the same

listing used to make our most recent favorable decision”). Given the SSA’s representations and

the caselaw requiring agencies to follow remand orders, the Court is satisfied that the agency will

abide by the Court’s ruling and will apply the 2014 Listings on remand and in any future review

of Cox’s case.

III. Plaintiff’s Other Objections

A. Treating Physician Rule

Cox also contends that the Magistrate Judge failed to address her argument that the ALJ

erred in not applying the “treating physician rule,” which required the ALJ to give controlling

weight to the opinion of Plaintiff’s treating physician, Dr. Colleen Hawthorne. See Pl. Mot. at

12; Pl. Obj. at 1, 16–17. Plaintiff is correct that ALJs must give “controlling weight” to a

treating source’s medical opinion that is “well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in

23 [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). If the ALJ declines to give a treating

physician’s opinion controlling weight, he must “explain his reasons,” and can do so by “not[ing]

the contradictory evidence in the record.” Williams v. Shalala, 997 F.2d 1494, 1498–99 (D.C.

Cir. 1993); see Def. Mot. at 18.

Here, Dr. Hawthorne found that Cox’s symptoms would cause her to be absent from

work “about twice a month” and that she “has only a fair ability to deal with the public, use

judgment, interaction with supervisors, related predictably in social situations, deal with work

stresses, maintain attention and concentration, behave in an emotionally stable manner, and

understand, remember, and carry out complex and detailed job instructions.”11 AR at 25; see Pl.

Obj. at 16 (citing AR 317–22). Plaintiff notes that these findings were corroborated by the

assessments of Dr. Rebecca Brosch, who determined that Cox’s functioning was “in the

extremely low range of intelligence.” Pl. Obj. at 16; see Pl. Resp. at 2–3; AR 537–43 (also

reporting that Cox’s verbal comprehension index and full-scale IQ scores were 61). The ALJ

gave “partial weight” to Dr. Hawthorne’s assessment, which he found “mostly consistent with

the medical evidence.” The ALJ explained, however, that Dr. Hawthorne’s opinions were “not

entirely consistent” with “the mental status examinations of other medical practitioners” and Dr.

Hawthorne’s “own mental status findings, which documented cooperative behavior, goal-

directed thoughts, average intelligence, adequate insight and judgment, and intact memory.” See

AR 25 (“Dr. Hawthorne’s opinion is also not consistent with the [Global Assessment of

Functioning scores] of 56 and 64 she assigned in treatment . . . .”). Because the ALJ found Dr.

11 In addition, Dr. Hawthorne opined that Cox has “acute heightened cognitive impairment,” “poor functioning,” “highly impaired/limited” reading and writing skills, and “poor attention, concentration, and focus.” AR at 318. She also noted that Cox has depression characterized by sleep disturbance, decreased energy, feelings of worthlessness, and difficulty concentrating, in addition to anxiety characterized by apprehensive expectation and vigilance and scanning behaviors. Id. at 320–21.

24 Hawthorne’s opinion to be internally inconsistent and in conflict with other evidence in the

record, he was not required to give that opinion controlling weight. Further, the ALJ adequately

discharged his duty to “explain his reasons” by specifying the internal consistency issues in Dr.

Hawthorne’s opinion and citing the contradictory evidence in the record. See AR at 25 (citing id.

at 284–91, 398, 413, 476–527).

That contradictory evidence consisted of statements from several medical professionals

and social workers. See AR at 25 (citing id. at 284–91, 398, 413, 476–527); see also id. at 398

(progress note from Dr. Crysta Chatman); id. at 413 (progress note from Nurse Practitioner Amy

Patten); id. at 476–79 (progress notes from Dr. Allen Gore); id. at 284–91 (report from

Contemporary Family Services, Inc.); id. at 480–92, 520–27 (notes of social worker Linda

Teghen); id. at 517–19 (notes of social worker Henry Jusu). Cox contends that the ALJ

improperly used the opinions of social workers to discount the determinations of her physicians.

See Pl. Mot. at 13; Pl. Resp. at 3–4. Under the agency’s regulations, an ALJ who relies on the

contradictory observations of social workers “must explain the reasons” for privileging the

nonmedical source’s opinion over a medical professional’s evaluation. See 20 C.F.R.

§ 404.1527(f)(2). Here, however, the ALJ did not depend on the opinions of social workers to

discount Dr. Hawthorne’s opinion because he also cited the conflicting opinions of several

medical professionals. See AR 25 (citing id. at 398, 413, 476–79).12 He therefore had no

obligation to explain a path of reasoning that he did not choose to take.

Still, “[t]he adjudicator generally should explain the weight given to opinions from

12 Several doctors and a nurse practitioner found that Cox was “alert and in no apparent distress” and “demonstrate[d] good judgment and insight.” Id. at 398; id. at 413 (same and also stating that Cox had “appropriate mood and affect” and her “recent and remote memory [was] intact”); id. at 476–79 (noting Cox’s “good” memory and “improving psychiatric condition”).

25 [nonmedical sources] or otherwise ensure that the discussion of the evidence in the determination

or decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning.”

20 C.F.R. § 404.1527(f)(2). While the ALJ did not explicitly “explain the weight” given to the

opinions of social workers, he cited their opinions as being consistent with other evidence in the

record, and “consisten[cy] with the evidence as a whole” is an acceptable reason for crediting

evidence. See id. § 404.1527(f)(1); AR at 25. Thus, by citing to the record, the ALJ adequately

ensured that his reasoning was intelligible. See Williams v. Shalala, 997 F.2d at 1498–99 (“That

the ALJ did not expressly state his reason for not applying the treating physician rule is of no

moment because he noted the contradictory evidence in the record, which record supplies the

reason.”). Accordingly, there is no basis to remand the case to correct a violation of the treating

physician rule. Although Plaintiff identifies myriad reasons to find fault with the ALJ’s

assessment, see Pl. Resp. 2–7, this Court “is not permitted to re-weigh the evidence and reach its

own determination.” Maynor, 597 F. Supp. at 460.

B. Processing Speed

Cox argues that her “extremely low [p]rocessing [s]peed of 59 was disabling on its own.”

See Pl. Obj. at 14; Pl. Mot. at 17. Neither the Commissioner nor the Magistrate Judge addressed

this argument. See Pl. Obj. at 14 (arguing that Defendant conceded this point). Although Cox’s

processing speed alone does not dispositively settle her disability status, it appears that the ALJ

should have considered Plaintiff’s processing speed when determining her RFC, as the ALJ is

required to consider “all of the relevant evidence in the case record” when analyzing a claimant’s

RFC. See Social Security Ruling 96-8p; see also Butler v. Barnhart, 353 F.3d 992, 1000 (D.C.

Cir. 2004) (stating that RFC “is a ‘function-by-function’ inquiry based on all of the relevant

evidence of a claimant’s ability to do work”). On remand, therefore, if the ALJ proceeds to Step

26 4 of the disability analysis, he should factor in Cox’s processing speed when determining her

RFC. Id.

C. Past Relevant Work

Cox argues that the ALJ’s finding at Step 4, where he determined that she could perform

her past relevant work, was unfounded. See Pl. Mot. at 28 & n.24; Pl. Resp. at 5–7 (noting

ALJ’s “failure to apply [the] SSA’s definition of “past relevant work”). Past relevant work is

defined as work that (1) was performed within the last 15 years, (2) qualifies as “substantial

gainful activity,” and (3) “lasted long enough for [the claimant] to learn to do it.” 20 C.F.R.

§ 404.1560. The Magistrate Judge agreed that the “ALJ’s finding is not support[ed] by

substantial evidence” because the ALJ failed to establish that Cox’s past work was indeed past

relevant work. See Report & Recommendation at 41. The Commissioner objects to his

conclusion. See Def. Obj. at 23 (“The ALJ explained that the RFC finding was supported

by . . . [Cox] working part-time in retail sales and commercial cleaning. Given this evidence, the

ALJ reasonably accounted for Plaintiff’s mental limitations . . . in the RFC and properly found

no greater limitations were warranted.”). The Court concurs with the Magistrate Judge that the

ALJ erred, but that the error was harmless because the ALJ made an alternative finding at Step 5

that Plaintiff could perform other jobs. See Report & Recommendation at 41; see also Reynolds

v. Astrue, 252 F. App’x 161, 165 (9th Cir. 2007) (“[W]hile we agree . . . that the ALJ committed

legal error in the step-four analysis . . . , that error is harmless given the ALJ’s RFC assessment

and step-five determination).

CONCLUSION

For the foregoing reasons, the Court will adopt the Report and Recommendation of the

Magistrate Judge in full. In addition, the Court will instruct the ALJ to consider and discuss

27 Cox’s processing speed should he be required to determine her RFC on remand. See supra

Section III.B. The Court will therefore grant in part and deny in part Plaintiff’s Motion for

Reversal, and it will deny Defendant’s Motion for Affirmance. The Commissioner’s decision is

vacated, and Cox’s case is remanded to the agency for further proceedings consistent with this

Memorandum Opinion and the Magistrate Judge’s Report and Recommendation. A separate

Order so stating will issue this day.

Florence Y. Pan United States District Judge

Date: January 19, 2022