UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
WANDA KYLER,
Plaintiff,
v. Civil Action No. 1:19-cv-03334 (CJN)
KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration,
Defendant.
MEMORANDUM OPINION
Wanda Kyler seeks reversal of the Social Security Administration’s denial of her claims
for disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 401–
433. Kyler contends that the Administrative Law Judge applied the wrong law and that the
decision is not supported by substantial evidence. See generally Pl.’s Mot. for Judgment of
Reversal (“Pl.’s Mot.”), ECF No. 13. The Administration argues that the Court should affirm the
decision. See generally Def.’s Mot. for Judgment of Affirmance (“Def.’s Mot.”), ECF No. 14.
Upon consideration of the motions and the administrative record, the Court will deny Kyler’s
motion for judgment of reversal and grant the Administration’s motion for judgment of affirmance.
I. Statutory Framework & Legal Standards
The Social Security Act of 1935 established a framework to provide “disability insurance
benefits” to eligible claimants. 42 U.S.C. § 423(a)(1)(A). The Act defines “disability” in pertinent
part as an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” Id. §
1 423(d)(1)(A). To establish eligibility for disability-based benefits, the claimant must show that
she has met the statutory definition of disability prior to her “date last insured.” See 42 U.S.C. §
423; 20 C.F.R. § 404.101; Kathy R. v. Comm’r of Soc. Sec., No. 6:19-CV-385, 2020 WL 1862967,
at *4 n.4 (N.D.N.Y. Apr. 14, 2020) (noting that the “date last insured” “is a technical term used . .
. to mark the last day on which a claimant is eligible for” disability benefits). The time between
the alleged disability onset-date and the date last insured represents the operative timeframe, also
known as the “relevant period,” for purposes of deciding an individual’s claim for disability
benefits. See Shimanek v. Kijakazi, No. CIV-20-417-J, 2022 WL 896817, at *3 (W.D. Okla. Mar.
10, 2022); Cauthen v. Saul, 827 F. App’x 444, 446 (5th Cir. 2020) (noting that “disability evidence
completely unrelated to the relevant period is irrelevant to adjudication of the claim”).
A multi-layered administrative process undergirds an individual’s claim for disability
benefits. See Carr v. Saul, 141 S. Ct. 1352 (2021). A claimant must first seek an initial
determination. 20 C.F.R. § 404.900(1). If unsatisfied with the outcome, the claimant may seek
reconsideration. Id. § 404.900(2). Where the claimant finds fault with the reconsideration
determination, the claimant may “request a hearing before an administrative law judge.” Id. §
404.900(3).
The Commissioner of Social Security has promulgated regulations outlining a five-step
process that applies at each stage, including before the ALJ. See 20 C.F.R. § 404.1520; Dowell v.
Colvin, 232 F. Supp. 3d 1, 5 (D.D.C. 2017). At step one, a claimant is not disabled if the claimant
is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful
activity includes work for pay or profit requiring significant mental or physical ability. Id. §
404.1572(a)-(b).
2 At step two, and only if the claimant is not engaged in substantial gainful activity, the ALJ
determines whether the claimant has a “severe medically determinable physical or medical
impairment that meets the duration requirement . . . or a combination of impairments that is severe
and meets the duration requirement.” Id. § 404.1520(a)(4)(ii). To meet the duration requirement,
a severe impairment or combination thereof “must have lasted or must be expected to last for a
continuous period of at least 12 months.” Id. §§ 404.1509, 416.909.
At step three, and only if the claimant suffers from a severe impairment, the ALJ assesses
whether the impairment “meets or equals one of the listings [of impairments].” Id. §
404.1520(a)(4)(iii). The listings of impairments describe impairments considered “severe enough
to prevent an individual from doing any gainful activity, regardless of his or her age, education, or
work experience.” Id. § 404.1525(a). If a claimant’s impairments meet all the criteria of a
particular listing, id. § 416.925(c)(3), or are equivalent to a listing, id. § 416.926, the claimant
counts as disabled, id. § 416.920(d); see also Cunningham v. Colvin, 46 F. Supp. 3d 26, 29 (D.D.C.
2014) (noting that where the ALJ finds that the claimant suffers from an impairment that meets
one of those listed, then, the claimant qualifies as disabled, ending the inquiry at step three). The
medical criteria defining the listed impairments has been set “at a higher level of severity than the
statutory standard” for disability. Sullivan v. Zebley, 493 U.S. 521, 532 (1990).
At step four, and only if the claimant does not satisfy one of the listed impairments, the
ALJ will evaluate the claimant’s “residual functional capacity.” Id. § 404.1520(a)(4)(iv); see also
Id. § 404.1545(a)(1) (defining “residual functional capacity” as “the most you can still do despite
your limitations”). After evaluating the claimant’s residual functional capacity, the ALJ will assess
whether the claimant has shown that she cannot perform her “past relevant work.” Id. §
404.1520(a)(4)(iv).
3 At step five, and only if the claimant cannot perform her past relevant work, the ALJ
evaluates the claimant’s residual functional capacity, “age, education, and work experience to see
if [the claimant] can make an adjustment to other work.” Id. § 404.1520(a)(4)(v). If a claimant
can make a feasible adjustment, then she is not disabled; a finding that there are no feasible
adjustments results in a finding that the claimant is disabled. Id.; see also Butler v. Barnhart, 353
F.3d 992, 997 (D.C. Cir. 2004) (noting that the claimant bears the burden on the first four steps,
whereas the Administration bears the burden on the fifth step).
In performing this five-step process, the ALJ “must adhere to certain regulatory
requirements.” Saunders v. Kijakazi, 6 F.4th 1, 4 (D.C. Cir. 2021). The ALJ must consider the
“objective medical evidence from an acceptable medical source,” medical opinions, and the
claimant’s subjective statements. 20 C.F.R. § 416.929(a). More weight must be accorded to
physicians who have treated and examined the claimant. Id. § 404.1527(c)(1), (c)(2).
Assuming the claimant disagrees with the ALJ’s conclusion, the claimant may request
review by the “Appeals Council.” Id. § 404.900(4). If the claimant is dissatisfied with the Appeals
Council’s determination, the claimant may seek judicial review. Id. § 404.900(5); 42 U.S.C. §
405(g) (noting that a claimant may seek judicial review of “any final decision of the Commissioner
of Social Security made after a hearing to which [she] was a party”).
The Administration’s determination will not be disturbed if it is supported by substantial
evidence and when the Administration applied the correct legal standards. 42 U.S.C. §§ 405(g),
1383(c); see also Thigpen v. Colvin, 208 F. Supp. 3d 129, 138 (D.D.C. 2016). The substantial-
evidence standard is “highly deferential.” Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1185
(D.C. Cir. 2008) (Kavanaugh, J.) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). As
the Supreme Court recently noted, the substantial-evidence standard does not present a high bar.
4 See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, it “means—and means only—such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(quotation omitted). Reversing an agency decision under the standard “is rare.” Rossello, 529
U.S. at 1185. And even if the Court perceives error, the Court will affirm the Administration’s
decision under the harmless-error standard unless prejudicial error is afoot. See Saunders, 6 F.4th
at 4.
II. Facts & Procedural Background
Wanda Kyler performed clerical duties as a school office manager from 1995 through most
of 2003, and she worked in customer service at a call center for the rest of 2003. See
Administrative Record (“AR”), at 423. Approximately eight years later, Kyler filed an application
for disability insurance benefits with the Social Security Administration. Id. at 60. In her
application, Kyler claimed that she became disabled on September 1, 2004, on the basis of obesity,
asthma, arthritis, hypertension, fatigue, shortness of breath, carpal tunnel syndrome, and knee
problems. Id. at 122, 156.
In February 2012, a disability adjudicator determined that Kyler did not qualify for
disability benefits. Id. at 58. To reach that determination, the adjudicator considered Kyler’s
“medical records,” her “statements,” and how her “condition[s] affected [her] ability to work.” Id.
at 59. A month later, the Administration upheld the determination upon reconsideration. Id. at 61.
Soon after, Kyler requested a hearing before an Administrative Law Judge. Id. at 10. After
consideration of the record, the ALJ determined that Kyler did not have an impairment or
combination of impairments that fell within those listed in the applicable regulation. Id. at 15.
The ALJ also found that Kyler had the residual functional capacity to perform sedentary work with
some exceptions and that Kyler could perform similar past relevant work. Id. at 16. Kyler
5 appealed to the Appeals Council. Id. at 1. But the Appeals Council found no reason to review the
ALJ’s decision. Id. at 2. Kyler sought judicial review. See Kyler v. Comm’r of Soc. Sec. Admin.,
46 F. Supp. 3d 1 (D.D.C. 2014). Judge Huvelle reversed the ALJ’s decision and remanded for
further consideration of Kyler’s alleged impairments. See generally id.
In March 2015, a second ALJ conducted an administrative hearing, AR at 456, and decided
almost two months later that Kyler did not suffer from a disability for purposes of receiving
disability benefits, id. at 420. In particular, the ALJ found that Kyler did not have an impairment
or combination of impairments that met or medically equaled the severity of one of the listed
impairments. Id. The ALJ also found that Kyler possessed the residual functional capacity to
perform some sedentary work with certain added limitations. Id. Kyler appealed to the Appeals
Council, id. at 397, which again found no reason to review the ALJ’s decision, id. at 399. Kyler
again sought judicial review. Magistrate Judge Harvey recommended that the ALJ’s decision be
reversed and that the matter be remanded for further consideration of Kyler’s alleged impairments
and residual functional capacity to perform certain work. See Kyler v. Berryhill, No.
116CV1271RBWGMH, 2017 WL 10241530, at *11 (D.D.C. Dec. 19, 2017). Judge Walton
adopted the report and recommendation in full. See AR at 1866.
In June 2019, a third ALJ conducted an administrative hearing, id. at 1213, and ultimately
determined that Kyler did not have an impairment or combination of impairments that met the
severity of one of the listed impairments, id. at 1197–1199. The ALJ also found that Kyler “had
the residual functional capacity to perform sedentary work . . . except could never climb ladders,
ropes, or scaffolds; occasionally climb ramps and stairs and crawl; and must avoid concentrated
exposure to extreme cold and heat, wetness, humidity, and fumes, odors, dusts, and gases.” Id.
6 Kyler seeks review of that decision pursuant to 42 U.S.C. § 405(g). In her motion for
reversal, Kyler argues that the decision is based on a legal error and is not supported by substantial
evidence. See generally Pl.’s Mot. In particular, Kyler argues that the ALJ applied the wrong
legal standard in evaluating Kyler’s alleged impairments at step three of the sequential evaluation
process, id. at 4, and that the ALJ’s decision regarding Kyler’s residual functional capacity is not
based on substantial evidence, id. at 9.
III. The ALJ Applied the Correct Legal Standard at Step Three
Recall that step three requires an ALJ to assess whether a claimant’s impairment “meets or
equals one of the listings,” 20 C.F.R. § 404.1520(a)(4)(iii). Recall, too, that the listings refer to a
list of “impairments that [the ALJ] consider[s] to be severe enough to prevent an individual from
doing any gainful activity, regardless of his or her age, education, or work experience,” 20 C.F.R.
§ 404.1525(a).
Up until October 7, 2016, Listing 3.03B stated that an individual suffered from debilitating
asthma when that individual experienced “[e]pisodes of severe attacks,” “in spite of prescribed
treatment and . . . physical intervention, occurring at least once every 2 months or on an average
of at least 6 times a year.” Kyler v. Berryhill, No. 116CV1271RBWGMH, 2017 WL 10241530,
at *8 (D.D.C. Dec. 19, 2017) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.03B (2015)). The
Listing further provided that each “in-patient hospitalization for longer than 24 hours for control
of asthma counts as two attacks, and [that] an evaluation period of at least 12 consecutive months
must be used to determine the frequency of attacks.” Id.
On June 9, 2016, however, the Administration published a modified rule, effective October
7, 2016, revising the listing of impairments for claims involving respiratory disorders. See Revised
Medical Criteria for Evaluating Respiratory System Disorders, 81 FR 37138 (effective October 7,
7 2016). The revised listing states that “[e]xacerbations or complications requiring three
hospitalizations within a 12-month period and at least 30 days apart [count] (the 12-month period
must occur within the period we are considering in connection with your application or continuing
disability review). Each hospitalization must last at least 48 hours, including hours in a hospital
emergency department immediately before the hospitalization.” Id. at 37148.
In July 2019, the ALJ compared Kyler’s impairments against the version of Listing
3.03(B) effective after October 7, 2016. See AR at 1198. In his decision, the ALJ noted that, at
the administrative hearing, “the claimant’s representative acknowledged that the claimant’s
impairments, alone or in combination, did not meet listing 3.03, as currently written, through the
date last insured because she did not have the requisite number of hospitalizations.” Id. The ALJ
also declined to consider whether Kyler satisfied the criteria of the respiratory impairment listing
as it existed before October 7, 2016. Id.
Kyler argues that the ALJ committed legal error when he applied the version of Listing
3.03(B) effective after October 7, 2016, rather than the prior version. See Pl.’s Mot. at 5. In
particular, Kyler contends that the application of the revised criteria to Kyler’s application for
disability benefits constitutes “impermissible retroactive rulemaking.” Id. at 6.1 Kyler’s argument
misses the mark.
Under what is known as the “presumption against retroactivity,” courts presume that new
laws “operate prospectively only, to govern future conduct and claims, and do not operate
1 Kyler also contends that she satisfied the criteria for Listing 3.03(B) in effect before October 7, 2016. See Pl.’s Mot. at 7. The Court need not address this argument because the ALJ properly applied the criteria for Listing 3.03(B) effective after October 7, 2016, and because Kyler does not argue that she satisfied the revised criteria. Indeed, Kyler conceded that she cannot satisfy the criteria for the current version of the Listing. See AR at 1222.
8 retroactively, to reach conduct and claims arising before” the law’s enactment. Ward v. Dixie Nat.
Life Ins. Co., 595 F.3d 164, 172 (4th Cir. 2010) (Wilkinson, J.); De Niz Robles v. Lynch, 803 F.3d
1165, 1169 (10th Cir. 2015) (Gorsuch, J.); see Vartelas v. Holder, 566 U.S. 257, 266 (2012) (noting
that unambiguous congressional instruction will overcome the presumption). The presumption
extends beyond statutes: an agency may not promulgate a retroactive regulatory rule absent
express congressional authorization. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988).
Where a statute contains no unambiguous instruction commanding retroactivity, courts
must decide whether application of the new rule would have retroactive effect. See Gordon v.
Pete’s Auto Serv. of Denbigh, Inc., 637 F.3d 454, 458 (4th Cir. 2011) (Wilkinson, J.). Congress
has not authorized the Social Security Administration to promulgate retroactive rules. See 42
U.S.C. § 405(a); Nat’l Min. Ass’n v. Dep’t of Lab., 292 F.3d 849, 859 (D.C. Cir. 2002) (per
curiam). The question, then, is whether the new rule, if applied here, operates retroactively. See
Cox v. Saul, No. 118CV02389KBJGMH, 2020 WL 9439356, at *7 (D.D.C. Sept. 1, 2020).
Application of new law operates retroactively if it “would attach new legal consequences
to events completed before its effective date.” Metroil, Inc. v. ExxonMobil Oil Corp., 672 F.3d
1108, 1113 (D.C. Cir. 2012) (Kavanaugh, J.); Bergerco Canada, a Div. of Conagra, Ltd. v. U.S.
Treasury Dep’t, Off. of Foreign Assets Control, 129 F.3d 189, 192 (D.C. Cir. 1997) (application
of new law would have retroactive effect if it “chang[es] the legal rights flowing from previous
acts”). The application of new law attaches legal consequences to a completed event if it impairs
a party’s vested right, imposes new duties on a party with respect to completed transactions, or
increases a party’s liability for past conduct. See Empresa Cubana Exportadora de Alimentos y
Productos Varios v. U.S. Dep’t of Treasury, 638 F.3d 794, 798 (D.C. Cir. 2011) (Kavanaugh, J.)
9 (citing Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006)); see also Celtronix Telemetry, Inc.
v. F.C.C., 272 F.3d 585, 589 (D.C. Cir. 2001) (noting that the arbitrary and capricious standard
apples to “secondary retroactivity”—e.g., a new regulation that makes worthless substantial
investment incurred in reliance upon the prior rule).
Application of the revised regulation does not increase Kyler’s liability for past conduct.
See Bartko v. Sec. & Exch. Comm’n, 845 F.3d 1217, 1223 (D.C. Cir. 2017). Nor does application
of the revised regulation impose new duties on her. See Quantum Ent. Ltd. v. U.S. Dep’t of the
Interior, 714 F.3d 1338, 1343 (D.C. Cir. 2013).
But does application of the revised regulation impair one of Kyler’s vested rights? See
Bergerco Canada, a Div. of Conagra, Ltd. v. U.S. Treasury Dep’t, Off. of Foreign Assets Control,
129 F.3d 189, 193 (D.C. Cir. 1997) (“[W]e must ask whether the legal status quo ante created
‘rights’ favorable to [Kyler] and later modified.”); Abington Mem’l Hosp. v. Burwell, 216 F. Supp.
3d 110, 142 (D.D.C. 2016) (noting that “if a regulated party’s rights have not yet vested with
respect to particular conduct—i.e., if the former legal consequences of his act have not attached
before the rule change—the agency’s application of a changed rule that alters the legal
consequences of the prior conduct operates only prospectively”); see also Geoffrey C. Weien,
Retroactive Rulemaking, 30 HARV. J.L. & PUB. POL’Y 749, 763 (2007) (“The key recurring
question in [retroactive-rulemaking] challenges is whether the plaintiff had a right that the agency
attempted to eliminate or impair.”).
Pending claims that rest on statutes or regulations “are contingent, and the rules may
change” until the right under the statute or regulation “may be said to vest.” McCavitt v. Kijakazi,
6 F.4th 692, 694 (7th Cir. 2021) (Easterbrook, J.). Disability benefits under the Social Security
Act are non-vested benefits “and do not become vested until one has actually established his
10 eligibility.” Harris v. Richardson, 468 F.2d 1260, 1260 (9th Cir. 1972) (per curiam); Flemming v.
Nestor, 363 U.S. 603, 610 (1960) (“To engraft upon the Social Security system a concept of
‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to
everchanging conditions which it demands.”). That makes sense, as “[d]isability benefits are not
designed to encourage people to acquire disabilities or reward them for doing so; limits on a federal
subsidy differ from penalties.” McCavitt, 6 F.4th at 694. Here, of course, Kyler did not become
impaired in reliance on the old regulation. Because Kyler had no vested right to disability benefits
and because she “did not rely on the pre-existing state of the law to [her] detriment,” the prior
regulation may apply, “even if it is unfavorable to” Kyler’s pending claim. Gonzalez v. Cuccinelli,
985 F.3d 357, 373 (4th Cir. 2021).
The Court draws support for its conclusion from Combs v. Commissioner of Social
Security, 459 F.3d 640, 641 (6th Cir. 2006) (en banc). The en banc court in Combs faced the
question whether the Administration erred when it refused to apply an old regulation to a
claimant’s application for disability benefits. See generally id. The applicant filed the claim three
years before the Administration eliminated the old regulation, which contained criteria favorable
to the applicant’s claim. Id. A majority of the en banc court, however, concluded that declining
to apply the old regulation was not retroactive. See BellSouth Telecommunications, Inc. v. Se. Tel.,
Inc., 462 F.3d 650, 663 (6th Cir. 2006) (unpacking and applying the en banc decision). A seven-
judge plurality determined that the new rule regulated procedure rather than substance and
therefore posed no retroactivity problem. Combs, 459 F.3d at 642–48. The opinion concurring in
the judgment, which provided the necessary eighth vote to affirm, decided that application of the
new rule did not have retroactive effect because the applicant “had no settled expectation—let
11 alone a vested right—in the use of the substantive regulations in force when she filed her disability
claim.” Id. at 654 (Gilman, J., concurring in the judgment).
National Mining Association v. Department of Labor, 292 F.3d 849 (D.C. Cir. 2002) (per
curiam) does not compel a different result. In that case, a mining association argued that applying
certain revised regulations to the adjudication of pending claims brought by coal miners under the
Black Lung Benefits Act represented impermissible retroactive rulemaking. Id. at 859. That Act
provides disability benefits to miners by shifting risk and liability onto the mining industry. Id.
One of the revised regulations created a rebuttable presumption in favor of the applicant, id. at
865, while a second expanded the scope of an employer’s liability, id. at 867. The Court of Appeals
held that the application of both revised regulations was retroactive. Id. at 868.
That case is distinguishable from this one for at least two reasons. First, it involved the
possibility of saddling private individuals with additional liability for past conduct. See id. at 859
(noting that where a “rule changes the legal landscape in a way that affects substantive liability
determinations . . . it may operate retroactively”) (emphasis added); see also Nat’l Cable &
Telecommunications Ass’n v. F.C.C., 567 F.3d 659, 670 (D.C. Cir. 2009) (casting doubt on the
scope of the Court of Appeals’ holding in Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849
(D.C. Cir. 2002)). As Judge Gilman put it, one “regulation increased the likelihood that mining
companies would be held liable for past conduct, whereas the [second] altered the amount that the
companies would be required to pay in the event that they were found liable.” Combs, 459 F.3d at
655 (Gilman, J., concurring in the judgment); see also id. at 650 n.3. Here, by contrast, the revised
regulation makes it more difficult for a private individual to obtain a government benefit. See
McCavitt, 6 F.4th at 694. Second, Kyler possessed no “settled expectations” that the old regulation
would apply to her pending claim because Congress has reserved the right to alter, amend, or repeal
12 any provision of the Social Security Act at any time. See Hisquierdo v. Hisquierdo, 439 U.S. 572,
575, 575 n.6 (1979) (noting that the Social Security Act provides: “The right to alter, amend, or
repeal any provision of this [Act] is reserved to the Congress”) (quotation omitted); Pine Tree
Medical Associates v. Secretary of Health and Human Services, 127 F.3d 118, 212 (1st Cir. 1997)
(stating that “the mere filing of an application is not the kind of completed transaction in which a
party could fairly expect stability of the relevant laws as of the transaction date”).
The Court recognizes that judges in this district have reached differing results;2 district
courts across the country have arrived at different outcomes;3 and the Courts of Appeals appear
conflicted on the question.4 But the Court concludes that the decisions of the Seventh and Sixth
Circuits are more persuasive.
2 Compare Cox v. Kijakazi, No. 18-CV-2389-FYP-GMH, 2022 WL 178953, at *1 (D.D.C. Jan. 19, 2022) (concluding that the Administration must apply the regulation in effect at the time the applicant filed the claim) with Brown v. Barnhart, 370 F. Supp. 2d 286, 290 (D.D.C. 2005) (reversing and remanding because the ALJ did not apply the revised regulation to the applicant’s claim). 3 Compare Tracy H. J. v. Kijakazi, No. 3:20-CV-00564 (MHL), 2021 WL 5985125, at *10 n.10 (E.D. Va. Dec. 1, 2021) (concluding that the court must apply the regulation in effect at the time the applicant filed the claim); Hernandez v. Saul, No. 1:18-CV-00895-SKO, 2019 WL 2725256, at *10 (E.D. Cal. July 1, 2019); Cantu v. Barnhart, No. 01 CV 848 MV/RLP, 2002 WL 35649852, at *3 (D.N.M. July 29, 2002) with Jason S. v. Kijakazi, No. 3:20-CV-50162, 2022 WL 345092, at *2 n.3 (N.D. Ill. Feb. 4, 2022) (concluding that the court must apply the revised regulation even though it came about after the applicant filed the claim); LaPlante v. Comm’r of Soc. Sec., No. 1:19-CV-947, 2020 WL 4004615, at *4 (W.D. Mich. June 5, 2020), Adkins v. Comm’r of Soc. Sec., No. 6:18-CV-1958-ORL-PDB, 2020 WL 1332003, at *3 n.4 (M.D. Fla. Mar. 23, 2020); Rowden v. Saul, No. CIV-19-361-SM, 2020 WL 1172714, at *7 (W.D. Okla. Mar. 11, 2020); Ray v. Comm’r of Soc. Sec., No. CIV-18-00638-SM, 2019 WL 1474007, at *3 (W.D. Okla. Apr. 3, 2019). 4 Compare McCavitt v. Kijakazi, 6 F.4th 692, 694 (7th Cir. 2021); Combs v. Comm’r of Soc. Sec., 459 F.3d 640 (6th Cir. 2006) (plurality opinion) (en banc) with Maines v. Colvin, 666 F. App’x 607, 608 (9th Cir. 2016) (memorandum disposition); Christie v. Comm’r of Soc. Sec. Admin., 267 F. App’x 146, 146–47 (3d Cir. 2008) (summary order); Nash v. Apfel, 215 F.3d 1337 (10th Cir. 2000).
13 One last note. Courts may but need not analyze harmless error on their own accord. See
United States v. Pryce, 938 F.2d 1343, 1347 (D.C. Cir. 1991); Goldstein v. Delaware Bureau of
Adult Corr., 931 F. Supp. 284, 299 (D. Del. 1996). Many courts have declined to decide whether
a new or an old regulation governs a claimant’s application because the claim fails under both,
rendering application of one or the other harmless error. See Harrison v. Berryhill, No. 5:17-CV-
00255-FL, 2018 WL 4576782, at *5 (E.D.N.C. May 24, 2018), report and recommendation
adopted, No. 5:17-CV-255-FL, 2018 WL 3993393 (E.D.N.C. Aug. 21, 2018); Jeffrey v. Berryhill,
No. CV 15-15226, 2017 WL 1197830, at *5 n.2 (S.D.W. Va. Mar. 31, 2017); see also Brown v.
Berryhill, No. CV 18-589 (RJL), 2019 WL 4538188, at *4 (D.D.C. Sept. 18, 2019) (finding the
Social Security Administration’s error harmless at sequential step five). The Administration,
however, has not made this argument here. Though it is feasible that Kyler’s claim fails under
both the old regulation and the revised regulation, the Court declines at this time to conduct a
harmless error analysis.
IV. The ALJ Properly Assessed Kyler’s Residual Functional Capacity
Where a disability claimant does not satisfy one of the listings at step three, the ALJ will
evaluate at step four the claimant’s “residual functional capacity” to determine whether the
claimant has the capability to perform sustained work-related physical and mental activities in a
work setting on a regular and continuing basis. 20 C.F.R. § 404.1520(a)(4)(iv); see also 20 C.F.R.
§ 404.1545(a)(1) (defining “residual functional capacity” as “the most you can still do despite your
limitations”). Social Security Ruling 96–8p provides the guidelines that an ALJ uses when
determining a claimant’s residual functional capacity. See Social Security Regulation (SSR) 96-
8p, 61 Fed. Reg. 34474, 34477 (July 2, 1996).
14 SSR 96-8p requires that the ALJ assess the “exertional and nonexertional capacities of the”
claimant to determine whether the claimant possesses the ability to perform certain work. Id. The
rule states in pertinent part that an ALJ’s residual-functional-capacity assessment “must first
identify the individual’s functional limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis,” which includes an evaluation of the claimant’s exertional
ability “to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying,
pushing, and pulling.” Id. at 34475, 34477. The ALJ need not provide a written articulation one-
by-one of all seven strength demands. Rather, the ALJ’s analysis will suffice so long as the Court
can conclude that consideration of all the factors occurred during the process of arriving at a
determination. See Banks v. Astrue, 537 F. Supp. 2d 75, 84 (D.D.C. 2008) (noting that “SSR 96–
8p only requires consideration of all the factors, not enumeration of all the factors”); Jamil D. v.
Kilolo Kijakazi, No. 21-CV-464 (GMH), 2022 WL 910334, at *9 (D.D.C. Mar. 29, 2022) (noting
some disagreement about whether an ALJ must conduct a written articulation of all seven strength
demands). What’s more, the ALJ’s residual-functional-capacity assessment must “include a
narrative discussion describing how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” 61
Fed. Reg. 34474, 34478. Put another way, the ALJ “must build a ‘logical bridge’ from the
evidence to his conclusion.” Banks v. Astrue, 537 F. Supp. 2d 75, 84 (D.D.C. 2008) (quotation
omitted).
The Court concludes that substantial evidence supports the ALJ’s determination that Kyler
has the residual functional capacity to perform some sedentary work. The ALJ analyzed Kyler’s
“subjective statements, objective medical evidence, opinion evidence, and other evidence of
record” when deciding whether Kyler had the residual functional capacity to perform limited
15 sedentary work. AR at 1202. In particular, the ALJ evaluated clinical findings of Kyler’s care
providers, unpacking in-depth Kyler’s hospital visits, her impairments, and her symptoms. Id. at
1199. The ALJ also analyzed medical opinion evidence, including the opinion of Kyler’s primary
care physician, Adebola Rojugbokan. Id. at 1202. And at the administrative hearing, the ALJ
asked a vocational expert whether a hypothetical individual with Kyler’s vocational profile could
perform limited sedentary work. Id. at 1239. The vocational expert responded in the affirmative,
stating that such an individual could perform Kyler’s past relevant work as a school secretary. Id.
at 1242. The ALJ referenced this back-and-forth questioning in his analysis. Id. at 1202. All in
all, the ALJ formulated a residual-functional-capacity assessment that accounted for Kyler’s
functional limitations, her subjective complaints, the objective medical evidence, and the medical
opinions of record. In other words, the Court concludes that the ALJ built a logical bridge from
the record evidence to his conclusion, providing a narrative that described how the evidence
supported the finding that Kyler could perform a narrow range of sedentary work. See
Cunningham v. Colvin, 46 F. Supp. 3d 26, 36 (D.D.C. 2014) (noting that “the Court’s review of
the record shows that the findings and analysis in the ALJ’s residual functional assessment
involved a sufficient discussion of the relevant evidence, including which was credited and which
was rejected”).
Kyler argues that the ALJ failed to address a combination of her impairments, but rather
focused on her impairments in isolation. See generally Pl.’s Opp’n to Def.’s Mot. for Judgment,
ECF No. 16. The record reflects a different reality. The ALJ found that Kyler’s “medically
determinable impairments could reasonably be expected to cause some but not all of the alleged
symptoms.” AR at 1199 (emphasis added). The reference to the plural impairments comes after
the ALJ acknowledged that Kyler had claimed to suffer from a variety of impairments, including
16 to name a few sarcoidosis, obesity, asthma, carpal tunnel syndrome, and depression. Id. In
addition, the ALJ concluded that “objective medical evidence, opinion evidence, and other
evidence of record” failed to support Kyler’s claim that “her impairments” kept her from
performing limited sedentary work. Id. at 1202 (emphasis added). The Court finds that substantial
evidence supports the conclusion that the ALJ evaluated the effect of Kyler’s impairments in
combination as well as in isolation.
Kyler further contends that the ALJ failed to address Kyler’s “ability to perform work
activities eight hours per day, five days per week.” Pl.’s Mot. at 16. That contention conflicts
with the record, which shows that the ALJ considered Kyler’s past relevant work and concluded
“that an individual with the claimant’s residual functional capacity could perform her past work as
a school secretary as generally performed.” AR at 1203. The ALJ also concluded that Kyler could
perform such work even with certain environmental limitations. Id.
Kyler also claims that the ALJ had to perform “a function-by-function assessment of a
claimant’s ability to perform the physical and mental demands of work.” Pl.’s Mot. at 12. The
Court rejects that one-by-one, function-by-function reading of the regulation. Instead, the Court
joins other courts “in concluding that a decision lacking a seven-part function-by-function written
account of the claimant’s exertional capacity does not necessarily require remand.” Jeske v. Saul,
955 F.3d 583, 596 (7th Cir. 2020) (noting that at least the Second, Fourth, Eighth, Ninth, and Tenth
Circuits do not require seven-part function-by-function written account). As stated previously, the
ALJ’s analysis will suffice so long as the Court can conclude that consideration of all the factors
occurred during the process of arriving at a determination. See Banks v. Astrue, 537 F. Supp. 2d
75, 84 (D.D.C. 2008) (noting that “SSR 96–8p only requires consideration of all the factors, not
enumeration of all the factors”).
17 V. Conclusion
For the foregoing reasons, the Commissioner of Social Security’s motion for judgment of
affirmance is GRANTED and Wanda Kyler’s motion for judgment of reversal is DENIED. An
Order will be entered contemporaneously with this Memorandum Opinion.
DATE: April 20, 2022
CARL J. NICHOLS United States District Judge