Miller v. Saul
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DARLENE M.,
Plaintiff,
v. Civil Action No. 20-1817 (RDM) MARTIN O’MALLEY, Commissioner of Social Security, 1
Defendant.
MEMORANDUM OPINION
Plaintiff Darlene M. brings this action pursuant to 42 U.S.C. § 405(g), seeking reversal of
the final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for Social Security disability insurance benefits, or, in the alternative, remand for a
new administrative hearing. Now before the Court are Magistrate Judge Harvey’s Report and
Recommendation (“R&R”), Dkt. 24, Plaintiff’s objections to the Report, Dkt. 26, and the
Commissioner’s response to those objections, Dkt. 27. For the reasons that follow, the Court
agrees with Judge Harvey that the Commissioner’s decision denying Plaintiff benefits should be
affirmed. The Court, accordingly, will ADOPT the Report and Recommendation, will GRANT
the Commissioner’s motion for judgment of affirmance, Dkt. 20, and will DENY Plaintiff’s
motion for judgment of reversal, Dkt. 18.
1 Pursuant to Federal Rule of Civil Procedure 25(d), the current Commissioner of Social Security is substituted as Defendant. I. BACKGROUND
A. Statutory and Regulatory Framework
Before a claimant may recover disability insurance benefits under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq., the Commissioner must conclude that she is
“disabled” within the meaning of the Act and governing regulations, id. §§ 416(i), 423(d). As
relevant here, the Act defines “disability” to mean the “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. § 423(d)(1)(A). To determine whether a claimant is
disabled, an Administrative Law Judge (“ALJ”) typically holds a hearing and performs a five-
step inquiry. 20 C.F.R. § 404.1520(a)(4).
Under this sequential inquiry, the claimant bears the burden of proof on the first four
steps. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). The claimant must first show that
she is not presently engaged in “substantial gainful activity;” if she is engaged in “substantial
gainful activity,” she is “not disabled.” 20 C.F.R. § 404.1520(a)(4)(i). Second, she must show
that she has a “severe medically determinable physical or mental impairment”—or “combination
of impairments”—that “meets the duration requirement.” Id. § 404.1520(a)(4)(ii). Third, she
must show that her impairment “meets or equals one of [the] listings” in the relevant regulation,
20 C.F.R. Pt. 404, Subpt. P, App. 1, and “meets the duration requirement,” id.
§ 404.1520(a)(4)(iii); if so, “she is deemed disabled and the inquiry is at an end,” Butler, 353
F.3d at 997. “If the claimant does not satisfy step three, the inquiry proceeds to the fourth step,
which requires her to show that she suffers an impairment that renders her incapable of
performing ‘past relevant work.’” Id. (quoting 20 C.F.R. § 404.1520(e)). In making that
2 determination, the ALJ must consider the claimant’s residual functional capacity (“RFC”) and
must compare her RFC “with the physical and mental demands of [her] past relevant work.” 20
C.F.R. §§ 404.1520(a)(iv), 404.1520(f). 2
If the claimant carries her “burden on the first four steps, the burden [then] shifts to the
Commissioner [at] step five,” who must “demonstrate that the claimant is able to perform ‘other
work’ based on a consideration of her [RFC], age, education and past work experience.” Butler,
353 F.3d at 997 (quoting 20 C.F.R. §§ 404.1520(f), 416.920(f)). If the claimant is unable to
perform “other work” and she meets the duration requirement, she is disabled within the
meaning of the statute. 20 C.F.R. § 404.1520(g).
B. Procedural History and Administrative Background
The Court need not repeat Judge Harvey’s thorough description of the relevant
procedural history and administrative background; instead, the Court adopts and incorporates his
summary of Plaintiff’s disability claims, the evidence and arguments before the ALJ, and the
ALJ’s decision. See Dkt. 24 at 4–19. The Court will, however, briefly highlight those portions
of the administrative record that bear on Plaintiff’s objections to the Report and
Recommendation.
Plaintiff filed an application for disability benefits in June 2017, claiming a disability
onset date of May 6, 2017, stemming from right-side weakness as the result of a stroke. Dkt. 15-
6 at 2–4, 6. Her application was denied at the initial level of review in December 2017 and on
reconsideration in February 2018. Dkt. 15-3 at 10–11, 22–23. She then requested a hearing
before an ALJ. Dkt. 15-4 at 15; see Dkt. 15-2 at 63–97. At the hearing, Plaintiff was
2 “Past relevant work” is work “done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1); see also id. § 416.960(b)(1).
3 represented by her current counsel. Compare Dkt. 15-2 at 11, with Dkt. 18-1 at 46. The ALJ
issued his decision denying Plaintiff’s claim in August 2019. Dkt. 15-2 at 8–26.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since May 6, 2017, the date of the alleged onset of her disability. Id. at 14. At step two, he
found that Plaintiff had four impairments that were properly classified as “severe” under the
regulations: “Diabetes mellitus,” “obesity,” “residual weakness from an acute cerebrovascular
episode,” and “tobacco addiction and related throat and breathing issues.” Id. (citing 20 C.F.R.
§ 404.1520(c)). At step three, however, the ALJ found that Plaintiff did “not have an
impairment” that met or medically equaled the severity of one the impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
The ALJ considered Plaintiff’s impairments under various listings—most relevant here, under
Listing 11.04 (the listing for “vascular insult to the brain,” commonly referred to as stroke)—and
found that her impairments neither met nor medically equaled any listing. Id. at 14–18.
At step four, the ALJ considered Plaintiff’s RFC in considerable detail. See id. at 18–24.
Among other things, he found that her “medically determinable impairments could reasonably be
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DARLENE M.,
Plaintiff,
v. Civil Action No. 20-1817 (RDM) MARTIN O’MALLEY, Commissioner of Social Security, 1
Defendant.
MEMORANDUM OPINION
Plaintiff Darlene M. brings this action pursuant to 42 U.S.C. § 405(g), seeking reversal of
the final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for Social Security disability insurance benefits, or, in the alternative, remand for a
new administrative hearing. Now before the Court are Magistrate Judge Harvey’s Report and
Recommendation (“R&R”), Dkt. 24, Plaintiff’s objections to the Report, Dkt. 26, and the
Commissioner’s response to those objections, Dkt. 27. For the reasons that follow, the Court
agrees with Judge Harvey that the Commissioner’s decision denying Plaintiff benefits should be
affirmed. The Court, accordingly, will ADOPT the Report and Recommendation, will GRANT
the Commissioner’s motion for judgment of affirmance, Dkt. 20, and will DENY Plaintiff’s
motion for judgment of reversal, Dkt. 18.
1 Pursuant to Federal Rule of Civil Procedure 25(d), the current Commissioner of Social Security is substituted as Defendant. I. BACKGROUND
A. Statutory and Regulatory Framework
Before a claimant may recover disability insurance benefits under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq., the Commissioner must conclude that she is
“disabled” within the meaning of the Act and governing regulations, id. §§ 416(i), 423(d). As
relevant here, the Act defines “disability” to mean the “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. § 423(d)(1)(A). To determine whether a claimant is
disabled, an Administrative Law Judge (“ALJ”) typically holds a hearing and performs a five-
step inquiry. 20 C.F.R. § 404.1520(a)(4).
Under this sequential inquiry, the claimant bears the burden of proof on the first four
steps. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). The claimant must first show that
she is not presently engaged in “substantial gainful activity;” if she is engaged in “substantial
gainful activity,” she is “not disabled.” 20 C.F.R. § 404.1520(a)(4)(i). Second, she must show
that she has a “severe medically determinable physical or mental impairment”—or “combination
of impairments”—that “meets the duration requirement.” Id. § 404.1520(a)(4)(ii). Third, she
must show that her impairment “meets or equals one of [the] listings” in the relevant regulation,
20 C.F.R. Pt. 404, Subpt. P, App. 1, and “meets the duration requirement,” id.
§ 404.1520(a)(4)(iii); if so, “she is deemed disabled and the inquiry is at an end,” Butler, 353
F.3d at 997. “If the claimant does not satisfy step three, the inquiry proceeds to the fourth step,
which requires her to show that she suffers an impairment that renders her incapable of
performing ‘past relevant work.’” Id. (quoting 20 C.F.R. § 404.1520(e)). In making that
2 determination, the ALJ must consider the claimant’s residual functional capacity (“RFC”) and
must compare her RFC “with the physical and mental demands of [her] past relevant work.” 20
C.F.R. §§ 404.1520(a)(iv), 404.1520(f). 2
If the claimant carries her “burden on the first four steps, the burden [then] shifts to the
Commissioner [at] step five,” who must “demonstrate that the claimant is able to perform ‘other
work’ based on a consideration of her [RFC], age, education and past work experience.” Butler,
353 F.3d at 997 (quoting 20 C.F.R. §§ 404.1520(f), 416.920(f)). If the claimant is unable to
perform “other work” and she meets the duration requirement, she is disabled within the
meaning of the statute. 20 C.F.R. § 404.1520(g).
B. Procedural History and Administrative Background
The Court need not repeat Judge Harvey’s thorough description of the relevant
procedural history and administrative background; instead, the Court adopts and incorporates his
summary of Plaintiff’s disability claims, the evidence and arguments before the ALJ, and the
ALJ’s decision. See Dkt. 24 at 4–19. The Court will, however, briefly highlight those portions
of the administrative record that bear on Plaintiff’s objections to the Report and
Recommendation.
Plaintiff filed an application for disability benefits in June 2017, claiming a disability
onset date of May 6, 2017, stemming from right-side weakness as the result of a stroke. Dkt. 15-
6 at 2–4, 6. Her application was denied at the initial level of review in December 2017 and on
reconsideration in February 2018. Dkt. 15-3 at 10–11, 22–23. She then requested a hearing
before an ALJ. Dkt. 15-4 at 15; see Dkt. 15-2 at 63–97. At the hearing, Plaintiff was
2 “Past relevant work” is work “done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” Id. § 404.1560(b)(1); see also id. § 416.960(b)(1).
3 represented by her current counsel. Compare Dkt. 15-2 at 11, with Dkt. 18-1 at 46. The ALJ
issued his decision denying Plaintiff’s claim in August 2019. Dkt. 15-2 at 8–26.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since May 6, 2017, the date of the alleged onset of her disability. Id. at 14. At step two, he
found that Plaintiff had four impairments that were properly classified as “severe” under the
regulations: “Diabetes mellitus,” “obesity,” “residual weakness from an acute cerebrovascular
episode,” and “tobacco addiction and related throat and breathing issues.” Id. (citing 20 C.F.R.
§ 404.1520(c)). At step three, however, the ALJ found that Plaintiff did “not have an
impairment” that met or medically equaled the severity of one the impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
The ALJ considered Plaintiff’s impairments under various listings—most relevant here, under
Listing 11.04 (the listing for “vascular insult to the brain,” commonly referred to as stroke)—and
found that her impairments neither met nor medically equaled any listing. Id. at 14–18.
At step four, the ALJ considered Plaintiff’s RFC in considerable detail. See id. at 18–24.
Among other things, he found that her “medically determinable impairments could reasonably be
expected to cause [her] alleged symptoms” but that her “statements concerning the intensity,
persistence and limiting effects of th[o]se symptoms [were] not entirely consistent with the
medical evidence and other evidence in the record” and that “her impairments [were] not as
severe as her allegations would suggest.” Id. at 19. The ALJ explained the basis for that finding
over several pages of his decision, id. at 19–24, before concluding that Plaintiff “is capable of
performing light work,” id. at 24. The regulations define “light work” as work that involves
“lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds. . . . [A] job is in this category when it requires a good deal of walking or standing,
4 or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 416.967(b).
At step five, the ALJ found—based on the testimony of a vocational expert—that
Plaintiff was “unable to perform [her] past relevant work” as a “mental health clerk.” Dkt. 15-2
at 24. The ALJ next considered whether—in light of Plaintiff’s RFC, age, education, and work
experience—“there are jobs that exist in significant numbers in the national economy that
[Plaintiff] [could] perform.” Id. at 25. Having already concluded that Plaintiff was capable of
performing the full range of light work, the ALJ did not rely on the vocational expert’s testimony
in response to hypotheticals posed at the hearing, both of which were limited to “sedentary
work” and one of which included additional limitations as well. See id. at 93–94. Instead, he
consulted the Medical-Vocational Guidelines (referred to as the “Grids”) to determine whether
an individual in Plaintiff’s age category at the time of the alleged disability onset date (“younger
individual”) or at the time of the hearing (“closely approaching advanced age”), with a limited
education and the ability to communicate in English, and with her RFC could perform jobs that
exist in significant numbers in the national economy. Id. at 24–25. For that criteria, the Grids
supported a finding of “not disabled” in both age categories. See id.; see also 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Rules 202.11, 202.18. The ALJ, accordingly, found that Plaintiff was not
disabled. Dkt. 15-2 at 25.
The ALJ’s decision became the Commissioner’s final decision when the Appeals Council
denied Plaintiff’s request for review on June 16, 2020. Dkt. 15-2 at 2–7. Plaintiff commenced
this action on July 1, 2020, Dkt. 1, and the Court referred the matter to a magistrate judge for
case management and a Report and Recommendation, see Min. Order (Oct. 8, 2020); Min. Order
5 (Oct. 12, 2020); Min. Order (Feb. 25, 2021). Plaintiff subsequently filed a motion for judgment
of reversal, Dkt. 18, and the Commissioner filed a motion for judgment of affirmance, Dkt. 20.
In seeking reversal, Plaintiff argued: (1) that the ALJ improperly evaluated her
functioning when determining whether her symptoms met or medically equaled the requirements
for the “vascular insult to the brain” listing, Dkt. 18-1 at 10–24; (2) that the ALJ made several
missteps when determining that she had the RFC to perform the full range of light work,
including by failing to give appropriate weight to her treating physician’s opinions, insufficiently
explaining his findings as to her exertional limitations, and erroneously rejecting her testimony
about the limiting effects of her symptoms, id. at 24–40; and (3) that the ALJ “erred when he
relied exclusively on the [Grids] to determine” that Plaintiff was “‘not disabled’ at step five of
the sequential evaluation,” id. at 41; see id. at 41–45.
In a Report and Recommendation issued on September 3, 2021, Judge Harvey
recommends that the Court deny Plaintiff’s motion for judgment of reversal and grant the
Commissioner’s motion for judgment of affirmance. Dkt. 24 at 2. First, the R&R concludes that
the ALJ’s determination that Plaintiff failed to meet the requirements of Listing 11.04 for
“vascular insult to the brain” was based on substantial evidence and should be affirmed. See id.
at 21–36. Second, with respect to Plaintiff’s RFC, the R&R concludes that the ALJ: (1)
accorded appropriate weight to the opinion of Plaintiff’s treating physician, id. at 37–44; (2)
permissibly rejected Plaintiff’s subjective testimony as inconsistent with other evidence in the
record and adequately explained that determination, id. at 44–53; and (3) sufficiently explained
his finding with respect to her exertional limitations, id. at 53–60. Finally, the R&R concludes
that the ALJ’s use of the Grids was permissible. Id. at 60–62. As Judge Harvey explains, an
ALJ may rely exclusively on the Grids to determine disability if the claimant’s RFC allows her
6 to perform the full range of sedentary, light, or medium work; in contrast, an ALJ may not
exclusively rely on the Grids if the claimant has additional restrictions, such as restrictions based
on mental functioning. Id. at 61. Because the ALJ’s RFC determination that Plaintiff could
perform the full range of light work was supported by substantial evidence, the R&R concludes
that the ALJ permissibly relied on the Grids to reach his ultimate finding that Plaintiff was “not
disabled.” Id. at 62.
Plaintiff timely filed objections, urging the Court to “decline to follow” the Report and
Recommendation for five reasons. Dkt. 26. First, she contends that, “in its recommendation to
affirm the ALJ’s ruling that [Plaintiff] does not meet or equal Listing 11.04[,] the Report violates
the Chenery doctrine.” Id. at 1. Second, Plaintiff claims that “the Report fails to recognize that
the ALJ’s evaluation of the opinion of [Plaintiff’s] treating physician . . . is not supported by
substantial evidence.” Id. Third, Plaintiff argues that the “Report fails to recognize that the ALJ
erred while determining” that Plaintiff had the RFC to perform light work because “he
effectively ignored the medical opinion of every physician on record, thereby impermissibly
playing doctor.” Id. at 2. Fourth, Plaintiff argues that “the Report fails to recognize that the ALJ
failed to properly credit [Plaintiff’s] subjective statements regarding the intensity, persistence,
and limiting effects of her objectively documented physical limitations.” Id. Fifth, Plaintiff
asserts that the “Report errs when it conclude[d] that the ALJ properly [had] employed” the
Grids to find Plaintiff “not disabled.” Id.
The Commissioner’s seven-page response asks the Court to adopt the Report and
Recommendation in full. Dkt. 27 at 7. According to the Commissioner, Plaintiff’s objections
merely repeat the arguments she raised in her initial motion, which the Report and
Recommendation “carefully considered” and rejected. Id. at 1. On the Commissioner’s telling,
7 the R&R correctly concludes that “substantial evidence supported the ALJ’s: (i) listing
determination, (ii) evaluation of medical opinions, Plaintiff’s [RFC], and her subjective
complaints; and (iii) use of the Grids to conclude that Plaintiff was not disabled.” Id. at 1–2.
II. LEGAL STANDARD
After a magistrate judge issues a Report and Recommendation, “[t]he district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). The judge is not required, however, to review those portions of a
magistrate judge’s report to which no objection is made. Callaway v. Berryhill, 292 F. Supp. 3d
289, 293 (D.D.C. 2018); Porter v. Colvin, 951 F. Supp. 2d 125, 129 (D.D.C. 2013). “The district
judge may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
“Proper objections ‘shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for objection.’” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Local R. Civ. P. 72.3(b)). Objections that “merely
rehash an argument presented and considered by the magistrate judge are not properly objected
to and are therefore not entitled to de novo review.” Id. (internal quotation marks omitted).
Thus, if the plaintiff “makes only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation only for clear error.”
Houlahan v. Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (quoting Salmini v. Astrue, 2009 WL
1794741, *1 (N.D.N.Y. June 23, 2009)); see also Sciacca v. FBI, 23 F. Supp. 3d 17, 27 (D.D.C.
2014).
When this Court reviews a Report and Recommendation de novo, it reviews the
Commissioner’s decision for substantial evidence. “Substantial evidence is ‘such relevant
8 evidence as a reasonable mind might accept as adequate to support a conclusion.’” Butler, 353
F.3d at 999 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It “requires more than a
scintilla, but . . . less than a preponderance of the evidence.” Id. (internal citation omitted).
“Substantial-evidence review is highly deferential to the agency fact-finder.” Rossello ex rel.
Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008). The claimant bears the burden of
demonstrating that the ALJ’s decision was not based on substantial evidence or contained an
error of law. Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 64 (D.D.C. 2006). The reviewing
court must determine whether the ALJ “has analyzed all evidence and has sufficiently explained
the weight he has given to obviously probative exhibits.” Id. at 65 (quoting Butler, 353 F.3d at
999). The court “is not permitted,” however, “to re-weigh the evidence and [to] reach its own
determination.” Maynor v. Heckler, 597 F. Supp. 457, 460 (D.D.C. 1984); see Butler, 353 F.3d
at 999 (“[W]e are not to determine ourselves whether [claimant] is disabled; we assess only
whether the ALJ’s finding . . . is based on substantial evidence and a correct application of the
law.”).
III. ANALYSIS
As noted, Plaintiff raises five objections to the Report and Recommendation:
First, in its recommendation to affirm the ALJ’s ruling that [Plaintiff] does not meet or equal Listing 11.04, the Report violates the Chenery doctrine. When properly analyzed, the ALJ’s decision regarding Listing 11.04 is not supported by substantial evidence.
Second, the Report fails to recognize that the ALJ’s evaluation of the opinion of [Plaintiff’s] treating physician, Dr. Janelle Dennis, is not supported by substantial evidence.
Third, the Report fails to recognize that the ALJ erred while determining that [Plaintiff] had the [RFC] . . . to perform the full range of light work because he effectively ignored the medical opinion of every physician on record, thereby impermissibly playing doctor.
9 Fourth, the Report fails to recognize that the ALJ failed to properly credit [Plaintiff’s] subjective statements regarding the intensity, persistence, and limiting effects of her objectively documented physical limitations.
Fifth, the Report errs when it concludes that the ALJ properly employed the Medical-Vocational Guidelines to find [Plaintiff] not disabled.
Dkt. 26 at 1–2. The Court addresses each objection in turn.
A. Plaintiff’s Objections Regarding the ALJ’s Paragraph C, Listing 11.04 Determination
Plaintiff first argues that the Report and Recommendation “should not be adopted
because it relies on impermissible post-hoc rationalizations to reach the conclusion that the
ALJ’s evaluation of [Plaintiff]’s impairments under Paragraph C of Listing 11.04 is supported by
substantial evidence.” Dkt. 26 at 2. By way of background, to meet the listing for “vascular
insult to the brain,” a claimant must satisfy the criteria in Paragraph A, B, or C of Listing 11.04.
Plaintiff challenges only the ALJ’s finding that she does not meet the Paragraph C criteria. Dkt.
24 at 21. Paragraph C requires that a claimant show:
Marked limitation in physical functioning and in one of the following areas of mental functioning, both persisting for at least 3 consecutive months after the insult:
1. Understanding, remembering, or applying information; or
2. Interacting with others; or
3. Concentrating, persisting, or maintaining pace; or
4. Adapting or managing oneself.
20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 11.04.C (emphasis added) (internal citations
omitted); see Dkt. 24 at 21. Examples of “[p]hysical functioning . . . include specific motor
abilities, such as independently initiating, sustaining, and completing” work-related physical
10 activities, and “functions of the body that support motor abilities, such as the abilities to see,
breathe, and swallow.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 11.00.G.3.a.
As Plaintiff correctly observes, it is a “simple but fundamental rule of administrative law”
that the reviewing court, “in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such action solely by the
grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see also,
e.g., Butler, 353 F.3d at 1002 (declining to accept the Commissioner’s contention that the “ALJ
must have interpreted” treating physician’s opinion that claimant “should never stoop to mean
that she should stoop ‘very little’ or ‘only occasionally,’” (internal citation omitted)). Here,
Plaintiff points to several portions of the Report and Recommendation’s Paragraph C discussion
that she characterizes as impermissible post-hoc rationalization. As explained below, the Court
is unpersuaded. 3
1.
First, Plaintiff maintains that the Report and Recommendation relies upon post-hoc
rationalization in its analysis of the ALJ’s finding that Plaintiff did not have a marked limitation
in the “interacting with others” area of mental functioning. Plaintiff’s objection is as follows: In
rejecting her original argument, Dkt. 18-1 at 17, that the ALJ had failed to consider her “slurred
speech and trouble expressing herself” as part of the “interacting with others” area of mental
functioning, the Report and Recommendation impermissibly makes the post-hoc conclusion that
“slurred speech or reaching for words are not a limitation.” Dkt. 26 at 4. It is true that, in
3 Indeed, the R&R correctly cites and relies upon Chenery, noting that the Commissioner’s opposition, Dkt. 20, to Plaintiff’s motion for reversal, Dkt. 18, “repeatedly cites evidence the ALJ did not cite and employs reasoning the ALJ did not employ,” making the submission of “limited use.” Dkt. 24 at 23 n.15.
11 considering Plaintiff’s argument, the R&R notes the relevant regulatory language at 20 C.F.R. Pt.
404, Subpt. P, App. 1, Listing 11.00.G.3.b.ii, before observing that “this area of functioning is
concerned with whether an individual can behave appropriately in work situations; it is not clear
that slurred speech or sometimes ‘reaching for words’ (as it was described at the hearing) could
be considered a limitation.” Dkt. 24 at 28. But, as relevant here, Judge Harvey continues:
“More importantly, however, the ALJ did address Plaintiff’s speech issues.” Id. (emphasis in
original). The R&R notes, in particular, that the ALJ had found (albeit in his Paragraph A
analysis) that, based on treatment notes, Plaintiff’s speech issues had improved in less than three
months to the point where she could verbally express herself without problem by June 2017. See
id.
Plaintiff argues that Judge Harvey erred in two respects. First, she maintains that his
skepticism about whether slurred speech could be considered a “limitation” constitutes a post-
hoc justification for the ALJ’s decision and thus violates the Chenery doctrine. Dkt. 26 at 4–5.
The R&R, says Plaintiff, “substituted its post-hoc interpretation of the medical evidence, and
which symptoms are strong enough to cause a functional limitation, for the ALJ’s.” Id. at 5.
Plaintiff’s argument ignores the full scope of what Judge Harvey wrote: He starts by correctly
describing Plaintiff’s argument that the ALJ erred by failing to consider her “slurred speech and
trouble expressing herself” in evaluating whether she had a marked limitation in interacting with
others. Dkt. 24 at 27 (citing Dkt. 18-1 at 17). He then observes—in passing—that it is unclear
that “slurred speech” qualifies as a relevant limitation under the “interacting with others”
umbrella. Id. at 28. Contrary to Plaintiff’s assertion, he does not decide that slurred speech
“cannot rise to the level of a limitation.” Dkt. 26 at 5. Critically, Judge Harvey then sets forth
the basis for his recommendation that the Court reject Plaintiff’s argument: That is, the ALJ did,
12 in fact, consider and address “Plaintiff’s speech issues” and reasonably concluded, based on
treatment notes that, although she experienced a period of dysarthria, Plaintiff’s speech improved
and, “in less than 3 months,” she “was able to ‘express herself nicely.’” Dkt. 24 at 28. Thus,
consistent with Chenery, the R&R ultimately recommends that the Court uphold the ALJ’s
decision based on the ALJ’s reasoning—that is, treatment notes indicating that Plaintiff “was
able to express herself nicely.”
According to Plaintiff, the Chenery problem nonetheless persists because the ALJ’s
discussion of Plaintiff’s improved speech occurred in the context of Paragraph A, yet the Report
and Recommendation considers the ALJ’s finding for purposes of Paragraph C. See Dkt. 26 at
5–6. The Court, once again, is unpersuaded. As the R&R explains, it would “exalt form over
substance” to ignore the ALJ’s findings with respect to Paragraph A—where the ALJ found,
based on treatment notes, that Plaintiff’s slurred speech had improved by June 2017 and that she
was able to “express herself nicely”—in “addressing the ALJ’s decision regarding the Paragraph
C criteria.” Dkt. 24 at 28. To be sure, few rules of administrative law rival the venerated status
of the Chenery doctrine. But another rule comes close: Courts should not hesitate to uphold
administrative decisions “of less than ideal clarity if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286
(1974); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513–14 (2009). Here, the
ALJ found that Plaintiff “was able to ‘express herself nicely.’” Dkt. 15-2 at 15. Although he
made that finding in the context of Paragraph A, and he did not repeat it for purposes of
Paragraph C, the Court has no difficulty discerning his reasoning and identifying “what evidence
was credited,” Butler, 353 F.3d at 1002.
13 Nothing more is required to uphold the ALJ’s decision. See McCartney v. Apfel, 28 F.
App’x 277, 279 (4th Cir. 2002) (per curiam) (“[W]e agree with the district court that the ALJ
need only review medical evidence once in his decision.”); Fischer-Ross v. Barnhart, 431 F.3d
729, 733 (10th Cir. 2005) (“[A]n ALJ’s findings at other steps of the sequential process may
provide a proper basis for upholding a step three conclusion that a claimant’s impairments do not
meet or equal any listed impairment.”); Schoofield v. Barnhart, 220 F. Supp. 2d 512, 522 (D.
Md. 2002) (remand not required where “it is clear from the record which listing or listings . . .
were considered, and there is elsewhere in the ALJ’s opinion an equivalent discussion of the
medical evidence relevant to the Step Three analysis which allows [the] [c]ourt [to]
readily. . . determine whether there was substantial evidence to support the ALJ’s Step Three
conclusion”); Harris v. Astrue, 2009 WL 801347, at *7 (N.D. Cal. Mar. 25, 2009) (finding no
error in ALJ’s step three determination where the “discussion and evaluation of evidence at step
four supports the. . . conclusion at step three that [the plaintiff’s] impairments did not equal [a
listing]”); Zagorianakos v. Colvin, 81 F. Supp. 3d 1036, 1044 (D. Colo. 2015) (finding no error
in the ALJ’s weighing of a treating source’s opinion where it was supported by evidence “more
fully explicated elsewhere” in the ALJ’s opinion).
2.
Equally unpersuasive is Plaintiff’s argument that the R&R relies on “post hoc”
rationalization in its discussion of the “concentrating, persisting, and maintaining pace” area of
mental functioning. In her original motion for judgment of reversal, Plaintiff argued that the
ALJ erred in finding that she had no limitation in “concentrating, persisting, and maintaining
pace” for purposes of Paragraph C because he ignored evidence that she suffers from fatigue,
decreased coordination, and trouble concentrating. Dkt. 18-1 at 18–19. The Report and
14 Recommendation considers Plaintiff’s argument and concludes that the ALJ’s findings regarding
Plaintiff’s ability to concentrate, persist, and maintain pace are supported by substantial evidence
for numerous reasons. Dkt. 24 at 29–32. The R&R first observes that “Plaintiff points to no
evidence in the record that [her] mildly impaired cognition or fatigue led to marked or significant
troubles in concentration, persistence, or pace.” Id. at 31. Next, the R&R reasons that the ALJ
did not “ignore” record evidence of fatigue, decreased coordination, and trouble concentrating
but, rather, addressed the issue in his analysis at Step Four. The R&R explains:
As Plaintiff points out, some of her testimony about trouble concentrating came in connection with testimony about driving, when she asserted that she got anxious and nervous “if a truck or a bus or something comes.” ECF No. 18-1 at 19 (quoting ECF No. 15-2 at 85). However, the ALJ clearly considered the evidence about her driving ability, as he noted that her ability to operate a motor vehicle—an ability that is not in dispute here (although Plaintiff did testify that she did not like to drive at night and got anxious while driving)—“require[d] her [to] maintain functional levels of concentration.” ECF No. 15-2 at 16. More, the ALJ specifically noted in his step four analysis that Plaintiff testified about issues with fatigue and concentration and he thus considered those issues. ECF No. 15-2 at 19. Indeed, he found that Plaintiff’s testimony about the severity of such symptoms was not entirely credible because it conflicted with substantial evidence in the record, id., including Plaintiff’s own reports on disability forms, see id. at 16.
Dkt. 24 at 31.
Plaintiff argues that the Report and Recommendation “makes an impermissible post-hoc
connection between the ALJ’s discussion of the consistency of [her] subjective statements with
the medical evidence at step four[,] and the ALJ’s discussion of [her] ability to concentrate,
persist, and maintain pace at step three, which cannot substitute for the legally insufficient
support provided by the ALJ at step three.” Dkt. 26 at 7 (emphasis added). Plaintiff’s Chenery
objection fails for the same reasons explained above and, as discussed below, the ALJ’s
reasoning and explanation was otherwise sufficient and supported by substantial evidence.
15 Setting Chenery aside for the moment, Plaintiff next objects that the R&R “errs by
concluding that a single mental status examination and isolated statements” from Plaintiff were
“enough to constitute substantial evidence” to support the ALJ’s finding that Plaintiff had no
limitation in concentrating, persisting, or maintain pace. Dkt. 26 at 8–9. Reviewing Judge
Harvey’s recommendation de novo—but affording due deference to the ALJ’s fact-finding—the
Court agrees that the ALJ’s finding that Plaintiff did not have a marked limitation in the
“concentrating, persisting, and maintain pace” area of mental functioning is supported by
substantial evidence.
As Plaintiff observes, Dkt. 26 at 7, Judge Harvey begins his analysis of this factor by
clarifying that the inquiry turns on the claimant’s ability to “focus attention on work activities
and to stay on-task,” 20 C.F.R. Pt. 404, Subpt. P., App. 1, Listing 11.04.G.3.b.iii, and not on
memory or understanding, see Dkt. 24 at 29. For that reason, as the R&R explains, the ALJ
unnecessarily addressed “several mental status examinations [that] showed that Plaintiff had
trouble recalling words after a brief delay,” finding that other evidence indicated that she “was
able to recall three . . . words after a brief delay on at least one occasion,” that there was “no
evidence of psychiatric impairment[,]” and that she “could spell words backwards and forwards,
could perform serial 3s, and was able to count and perform calculations with quarters.” Dkt. 24
at 8–9, 24, 59–604 (citing, inter alia, Dkt. 15-2 at 16).
But that detour ultimately had no effect on the ALJ’s decision. Separate and apart from
the ALJ’s consideration of memory, the ALJ cited to substantial evidence showing that Plaintiff
has no limitation on her ability to concentrate, persist, or maintain pace, but rather “has normal
concentration and attention.” Dkt. 15-2 at 16. As Judge Harvey persuasively explains, the
ALJ’s discussion relied on the following substantial evidence:
16 [The ALJ] asserted that “[m]ental status examinations have shown that [Plaintiff] has normal concentration and attention,” and supports that finding by citing, as an example, a record from May 2017, which states that Plaintiff has “good” attention. ECF No. 15-2 at 16 (citing ECF No. 15-8 at 11). Moreover, he pointed to evidence from Plaintiff herself that she is able to concentrate. Specifically, Plaintiff testified that she can drive a car, asserted in her function report that she can maintain a checkbook and watch television, and failed to indicate on that report that she had problems concentrating or completing tasks, even though there were check boxes available on that form that would allow her to assert limitations in those areas. ECF No. 15-2 at 16 (citing Plaintiff’s hearing testimony; ECF No. 15-6 at 17–19). Together, that evidence is sufficient to support the finding that Plaintiff does not meet the paragraph C criteria as to this area of functioning. See, e.g., Garcia v. Colvin, 83 F. Supp. 3d 1177, 1182 (D. Colo. 2015) (approving the ALJ’s explanation that the claimant did not have significant deficits in concentration, persistence, and pace because she could, among other things, drive a car, which “requires substantial attention and concentration, in order to remember, understand[,] and carry out complex functions, and to integrate such complex functions into independent situational awareness and projective judgment every few seconds”); cf. Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1325 (11th Cir. 2021) (affirming the ALJ’s finding that the claimant had only mild limitations in concentrating, persisting, or maintaining pace where the claimant stated that she could drive and shop and assist with household chores).
Dkt. 24 at 30–31.
The Court agrees that the cited evidence is sufficient to uphold the ALJ’s finding with
respect to Plaintiff’s ability to concentrate, persist, or maintain pace. The evidence described
above is undeniably “more than a scintilla.” Butler, 353 F.3d at 999. Indeed, as the ALJ noted,
Plaintiff herself did not allege in the administrative proceeding that “her impairments have
adversely affected [her] ability to follow instructions or complete tasks.” Dkt. 15-2 at 16. For
these reasons, the two cases to which Plaintiff cites are not persuasive: In both, the cherry-
picked example of a single mental status examination stood in contrast to the majority of the
other evidence before the agency fact-finder. See Dkt. 26 at 8 (first citing Harris v. Berryhill,
2019 WL 2068469, at *3 (D. Nev. May 10, 2019); then citing Schweihofer v. Comm’r of Soc.
Sec., 2019 WL 1339611, at *9 (E.D. Mich. Mar. 25, 2019)).
17 Plaintiff further objects to the ALJ’s reliance on her testimony regarding her ability,
among other things, to drive a car because the ALJ later rejected other portions of her testimony
as “inconsistent with the medical evidence.” Dkt. 26 at 8. But the ALJ was entitled to credit
Plaintiff’s testimony about her ability to drive and watch television and, at the same time, to
discount her testimony about the severity of her symptoms. If anything, those two
determinations inform each other—it was reasonable for the ALJ to find that Plaintiff’s
testimony about her daily activity undercut her testimony about the severity of her symptoms.
3.
Plaintiff next argues that the Report and Recommendation relies on “impermissible post-
hoc rationalizations” in considering the ALJ’s finding that she did not have a marked or extreme
limitation in the “adapting or managing [one]self” area of mental functioning of Paragraph C,
namely by “attempt[ing] to re-write the ALJ’s deficient evaluation” of this area. Dkt. 26 at 8. In
her original motion for judgment of reversal, Plaintiff argued that the ALJ erred by not “at least
minimally discussing evidence that she has taken the wrong dosage of medication, has had
difficulties scheduling medical appointments, and has had continued difficulties driving since her
stroke.” Id. at 8–9; see Dkt. 18-1 at 21–24. The Report and Recommendation considers and
rejects this argument. Plaintiff now objects that in doing so, the R&R violated the Chenery
doctrine: (1) by ignoring the ALJ’s reasoning and, instead, concluding that none of this evidence
“show[s] difficulty managing psychologically based symptoms” and (2) by relying on Plaintiff’s
testimony “that she had no trouble remembering to take medications,” even though “the ALJ
never mention[ed] or cit[ed] this testimony in his discussion of Paragraph C.” Dkt. 26 at 9–10.
In pressing this objection, however, Plaintiff misunderstands the Chenery doctrine.
“Under the Chenery doctrine, a reviewing court must confine itself to the grounds upon which
18 the record discloses that the agency’s action was based,” Byers v. Comm’r of Internal Revenue
Serv., 740 F.3d 668, 680 (D.C. Cir. 2014), and “[i]f those grounds are inadequate or improper,
the court is powerless to affirm the administrative action by substituting what it considers to be a
more adequate or proper basis,” Chenery Corp., 332 U.S. at 196. Here, the Report and
Recommendation is entirely compliant with that admonition. The R&R begins by offering the
regulatory definition of the “adapting and managing oneself” area of mental functioning, which
“refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work
setting.” Dkt. 24 at 32 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 11.04C.4.,
11.00G.3.b.iv) (capitalization altered). As the R&R states, the regulations provide that:
Examples include: responding to demands; adapting to changes; managing your psychologically based symptoms; distinguishing between acceptable and unacceptable work performance; setting realistic goals; making plans for yourself independently of others; maintaining personal hygiene and attire appropriate to a work setting; and being aware of normal hazards and taking appropriate precautions.
Id. (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 11.04C.4., 11.00G.3.b.iv). The R&R then
explains that:
The ALJ pointed to medical evidence in the record that Plaintiff had appropriate thought content and intact judgment and was able to dress and groom herself appropriately. ECF No. 15-2 at 16 (citing ECF No. 15-7 at 9, 23, 99; ECF No. 15-8 at 12, 139–40). He further noted that Plaintiff testified that she could drive a car and shop in stores, “which would require her to be able to adapt to potentially stressful situations,” and that in her function report she stated that she could go out with friends and that she did not need help or reminders [to] tak[e] medicine or do household chores. ECF No. 15-2 at 16– 17 (citing Plaintiff’s hearing testimony; ECF No. 15-6 at 16, 18). Substantial evidence thus supports the ALJ’s finding that Plaintiff did not meet the paragraph C criteria as to this realm of functioning.
Id. at 32–33. As the material quoted above makes clear, the Report and Recommendation’s
conclusion is based on reasoning and evidence that appeared in the ALJ’s decision.
19 The portion of the Report and Recommendation to which Plaintiff objects arises in a
wholly different context: After correctly concluding that the ALJ’s “adapting or managing
oneself” determination was based on substantial evidence, Judge Harvey goes on to respond to
another one of Plaintiff’s arguments, namely that the ALJ had ignored different evidence in the
record. See id. at 33. In response, the R&R observes that Plaintiff “failed to explain how such
evidence is relevant to” the adapting or managing oneself area of mental functioning, which “is
concerned with the claimant’s ability to maintain well-being in a work setting, which includes
the ability to manage psychologically-based symptoms.” Id. Against that backdrop, the R&R
reasonably concluded that “the stray evidence to which Plaintiff points does not establish that
Plaintiff’s impairment led to difficulty managing psychologically-based symptoms that would
interfere with her work.” Id.
The R&R’s reasoning does not present a Chenery (or any other) problem. It is well-
settled that an ALJ need not address every piece of evidence that a claimant offers. See
Goodman v. Colvin, 233 F. Supp. 3d 88, 109 (D.D.C. 2017) (citing Reid v. Comm’r of Soc. Sec.,
769 F.3d 861, 865 (4th Cir. 2014)). Instead, the ALJ must only “minimally discuss a claimant’s
evidence that contradicts the Commissioner’s position.” Lane-Rauth, 437 F. Supp. 2d at 67
(quoting Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000)). In order to make that assessment,
district courts must, in turn, decide whether the unaddressed evidence, in the first instance,
reasonably can be considered material and, more aptly, contradictory. Here, that is all that Judge
Harvey did. He did not violate the Chenery principle by merely observing that, Plaintiff, while
arguing that the ALJ ignored important evidence, failed to explain how that evidence was
relevant to the question at hand. Plaintiff is correct that Judge Harvey referenced portions of
Plaintiff’s testimony that the ALJ did not cite, see Dkt. 26 at 9–10 (citing Dkt. 24 at 34), but
20 Judge Harvey’s references merely illustrate that the evidence that Plaintiff claimed the ALJ had
ignored was not contradictory or, indeed, even related to the area of mental functioning in
question.
4.
Plaintiff’s final Paragraph C argument relates to her contention that the ALJ erred by
failing to discuss “physical functioning” when evaluating whether she met the Paragraph C
criteria of Listing 11.04. Dkt. 26 at 10 (citing Dkt. 18-1 at 12). Recall that in order to meet the
Paragraph C criteria, a claimant must demonstrate a “[m]arked limitation” in “physical
functioning” and in at least one of four “areas of mental functioning.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1, Listing 11.04.C. The R&R rejects Plaintiff’s original argument, in part, because the
ALJ did evaluate the physical functioning relevant to Paragraph C—although he did so in
evaluating the Paragraph B criteria, which, like Paragraph C, require “an extreme limitation in
the ability to stand up from a seated position, balance while standing or walking, or use the upper
extremities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 11.04.B (internal citation omitted).
Plaintiff objects because “the ALJ never made any cross-reference between his insufficient
evaluation of Paragraph C and his earlier discussion of Paragraph B.” Dkt. 26 at 10. In her
words, the R&R “attempts to impermissibly substitute for the ALJ’s lack of explanation by
making a cross-reference the ALJ never made,” thus violating Chenery. Id. The Court
disagrees.
As the R&R correctly observes, the ALJ was not required to discuss Plaintiff’s physical
limitations multiple times in his decision. Dkt. 24 at 35–36; see also McCartney, 28 F. App’x at
279 (“[W]e agree with the district court that the ALJ need only review medical evidence once in
his decision.”). But even if that were not the case, as the R&R further observes, “any error
21 would be harmless, as the fact that Plaintiff did not have a marked limitation in any area of
mental functioning necessarily means that she does not meet the Paragraph C criteria in Listing
11.04,” regardless of any physical limitations. Dkt. 24 at 35.
Apart from those discussed above, Plaintiff raises no other objection to Judge Harvey’s
conclusion that substantial evidence supports the ALJ’s decision that Plaintiff does not meet the
criteria set forth in Paragraph C of Listing 11.04 for vascular insult to the brain. Because the
Court is not required to review those portions of a magistrate judge’s Report and
Recommendation to which no objection is made, the Court will adopt in full the remaining
relevant discussion from Judge Harvey’s considered Report and Recommendation and will
affirm the ALJ’s determination regarding Listing 11.04.
B. Plaintiff’s Objections Regarding the ALJ’s RFC Determination
In her motion for judgment of reversal, Plaintiff also argued that the ALJ made several
missteps in determining that she had the RFC to perform the full range of light work, including:
(1) by failing to give appropriate weight to her treating physician’s opinion, (2) by insufficiently
explaining his findings as to her exertional limits, and (3) by erroneously rejecting her subjective
testimony about the limiting effects of her symptoms. Dkt. 18-1 at 24–40. The Report and
Recommendation considers and rejects each of these arguments. Dkt. 24 at 37–60. Plaintiff now
objects to the manner in which each of her three arguments was resolved. None of her objections
is persuasive.
Plaintiff first objects that the R&R “fails to recognize” that the ALJ’s “evaluation of the
opinion of [Plaintiff]’s treating physician, Dr. Janelle Dennis, is not supported by substantial
evidence.” Dkt. 26 at 1; see id. at 11–16. Plaintiff presented effectively the same argument to
22 Judge Harvey, see Dkt. 18-1 at 28, but now argues that the Report and Recommendation
“violates the Chenery doctrine by supplying a reasoning for the ALJ’s conclusion which the ALJ
did not provide in his written opinion,” Dkt. 26 at 12; see id. at 13. That is incorrect.
Under the D.C. Circuit’s treating physician rule, the opinions of treating physicians “must
be accorded substantial weight,” given the “great familiarity” a treating physician has with her
patient’s condition. Butler, 353 F.3d at 1003 (quoting Williams v. Shalala, 997 F.2d 1494, 1498
(D.C. Cir. 1993)). Accordingly, “[a] treating physician’s report is ‘binding on the fact-finder
unless contradicted by substantial evidence,’” and an ALJ “who rejects the opinion of a treating
physician” is required to “explain his reasons for doing so.” Id. (quoting Williams, 997 F.2d at
1498). 4
Here, the ALJ “considered and evaluated opinion evidence submitted by Dr. Dennis” and
gave that opinion “partial weight.” Dkt. 15-2 at 24. As the ALJ noted, Dr. Dennis
submitted a medical opinion stating that the claimant would be limited to sedentary work; would be limited in her ability to push or pull using her lower extremities; could never crouch, crawl or climb ropes, ladders o[r] scaffolds; could frequently climb ramps and stairs; could occasionally balance, stoop, and kneel; would need to avoid concentrated exposure to extreme cold, humidity, pulmonary irritants, and workplace hazards; and would need to avoid even moderate exposure to extreme heat (Exhibit 11F).
Id. Although the ALJ found that this opinion was “supported by a treating relationship with the
claimant,” he also found that it was “not entirely consistent with the rest of the evidence.” Id.
He continued:
In particular, this opinion is inconsistent with [the] physical examinations discussed above showing that the claimant has intact sensation throughout, a
4 The Report and Recommendation assumes, without deciding, that the D.C. Circuit’s treating physician rule remains good law. Dkt. 24 at 37 n.23. But see David v. Kijakazi, 2023 WL 5035935, at *10 n.12 (D.D.C. Aug. 8, 2023) (“This Court, like a number of other district courts, agrees that the new regulations are binding upon it and abrogate prior inconsistent precedent like the D.C. Circuit’s . . . treating physician rule.”).
23 normal range of motion in all of her extremities, is able to ambulate without an assistive device, and only had [a] “mild” weakness on her right side. [Dr. Dennis’s] opinion is also inconsistent with the fact that the vast majority of physical examinations discussed above have shown that the claimant has normal breathing sounds.
Id. (emphasis added).
In her initial motion, Plaintiff argued that the ALJ failed to “cite specific examples of
inconsistent evidence from the record.” Dkt. 18-1 at 28. She submitted that the ALJ “failed to
provide any page references, any explanation of what he saw in these records that supported his
conclusion, or any basis for a reviewing Court to conclude that Dr. Dennis’ opinion was
contradicted by substantial evidence.” Id. Judge Harvey rejects this argument because “the
ALJ’s decision includes a comprehensive review and citation of the physical examination
evidence supporting his findings.” Dkt. 24 at 40 (citing Dkt. 15-2 at 20). That the ALJ referred
back to “physical examinations discussed above” in evaluating Dr. Dennis’s opinion, Dkt. 15-2
at 24, “rather than setting out the citations again[,] [wa]s immaterial,” Dkt. 24 at 40.
Plaintiff now objects that the ALJ failed to include specific record citations in his
evaluation of Dr. Dennis’s opinion and that the R&R improperly substitutes its reasoning for the
ALJ’s reasoning by supplying the missing citations. Dkt. 26 at 11–12. Plaintiff mischaracterizes
both the R&R and the ALJ’s decision. Contrary to her objection, the R&R does not “rewrit[e]
the ALJ’s explanation to refer to [an] earlier evaluation . . . despite the actual decision lacking
this cross-reference.” Id. at 11–12. Instead, the ALJ plainly referred to physical examinations
“discussed above” in his decision and found that Dr. Dennis’s opinion was “inconsistent” with
that above-discussed evidence. Dkt. 15-2 at 24. The R&R merely looks to the specific record
citations that appeared “above” in the ALJ’s decision. Dkt. 24 at 40 (citing Dkt. 15-2 at 20, 24).
Judge Harvey did not err by reasoning that: “The fact that, in the paragraph discussing Dr.
24 Dennis’s opinion, [the ALJ] refers to ‘physical examinations discussed above’ rather than setting
out the citations again is immaterial.” Id. (internal citation omitted).
Judge Harvey also correctly evaluated Plaintiff’s original argument that the “ALJ erred
by failing to discuss her testimony regarding her use of a cane when evaluating Dr. Dennis’
opinion,” Dkt. 26 at 13 (citing Dkt. 18-1 at 30); see Dkt. 24 at 41–42, and the Court adopts Judge
Harvey’s persuasive reasoning in full, see Dkt. 24 at 41–42. Plaintiff, in a now familiar refrain,
objects that the R&R errs by citing the ALJ’s discussion “in an entirely different part of [the
ALJ’s] decision,” which addressed inconsistencies between Plaintiff’s “subjective statements”
and “the medical evidence.” Dkt. 26 at 13. But the cited discussion does not appear in an
“entirely different part” of the ALJ’s decision. Both the cited discussion about Plaintiff’s
testimony and the ALJ’s discussion of Dr. Dennis’s opinion appear in the section of the ALJ’s
decision devoted to determining Plaintiff’s RFC. See Dkt. 15-2 at 18–24. And, in any event, the
thrust of Plaintiff’s argument is unhelpful: Although it is true that Plaintiff testified that she uses
a cane, Dr. Dennis opined, as Plaintiff herself acknowledges, that Plaintiff could ambulate
without an assistive device. See Dkt. 18-1 at 29–30 (first citing Dkt. 15-2 at 76–77; then citing
Dkt. 15-22 at 104). Thus, Plaintiff’s testimony (that she used a cane) would, if anything,
contradict Dr. Dennis’s opinion (that she does not require an assistive device). Even assuming
that the ALJ should have considered Plaintiff’s testimony regarding her use of a cane in
evaluating Dr. Dennis’s opinion, moreover, an ALJ is not required to repeat his evaluation of the
same evidence merely for the sake of completeness—particularly within the same step of the
sequential analysis.
25 2.
Plaintiff next objects to the Report and Recommendation on the ground that it “fails to
recognize that the ALJ impermissibly played doctor and ignored the medical opinion of every
physician on record when determining that [Plaintiff] had the RFC to perform the full range of
light work.” Dkt. 26 at 16. She argues that the R&R “fails to acknowledge that all four
physicians agree that [Plaintiff] cannot perform a full range of light work.” Id. at 14. That is
incorrect. The R&R explains:
[T]he ALJ clearly expressed the reasoning underlying his assessment of Plaintiff’s RFC throughout his discussion of the medical and other evidence. For example, he found that physical examinations “generally” showed that Plaintiff “has a normal range of motion in both of her upper and lower extremities, which would support finding that she is capable of performing the full range of light work” and that she “has intact hand and finger dexterity, normal grip strength bilaterally, intact sensation throughout, normal reflexes, and normal muscle tone,” which “would support not including environmental or manipulative limitations.” ECF No. 15-2 at 20. He also found a limitation to the full range of light work was supported by medical evidence showing full strength in Plaintiff’s upper and lower extremities; normal gait, station, and motor function; improvement in her speech, strength, coordination, and balance; normal breathing sounds, breathing effort, heart sounds, sinus rate, sinus rhythm, and peripheral pulses; regular heart rate; clear lungs; and pharmacologically-controlled hypertension. Id. at 20–21. The ALJ cited non- medical evidence supporting his findings, as well, such as Plaintiff’s testimony that she could drive and had no restriction on her license, her reports to health care providers that she could independently perform activities of daily living, and her function report that stated that she could prepare meals and perform household chores and failed to indicate any issues with kneeling, squatting, bending, reaching, or seeing. ECF No. 15-2 at 22. Additionally, based on such evidence, the ALJ rejected the opinions of Drs. Goo, Bedeau, Nolte, and Dennis to the extent that they recommended additional exertional or non- exertional limitations, such as the State agency consultants’ proposed restrictions on balancing, stooping, climbing, and exposure to workplace hazards; Dr. Nolte’s proposed restriction on balancing and walking on uneven surfaces; and Dr. Dennis’ proposed restriction on carrying more than ten pounds. Id. at 23–24. The ALJ’s discussion is sufficient.
Dkt. 24 at 56–57.
26 Ultimately, Plaintiff’s objection is not premised on the ALJ’s failure to consider the
medical opinions of the four doctors but, rather, on a disagreement with the ALJ’s reasoned
findings. The ALJ found, for example, that the opinions offered by Dr. Bedeau and Dr. Goo
were “not entirely consistent with the rest of the evidence,” including the “physical examinations
discussed,” which showed that “the claimant has a normal range of motion in her extremities and
intact sensation throughout” and Plaintiff’s own testimony, which undercut their opinions
regarding “visual limitations.” Dkt. 15-2 at 23. The ALJ afforded the opinions of Dr. Nolte and
Dr. Dennis partial weight for similar reasons, fully explicated in the ALJ’s written decision. Id.
at 23–24. It is not the Court’s role “to second-guess the ALJ by reweighing the evidence.”
Callaway, 292 F. Supp. 3d at 298.
Plaintiff next objects that the Report and Recommendation “fail[s] to recognize” that the
ALJ “failed to properly credit [Plaintiff’s] subjective statements regarding the intensity,
persistence, and limiting effects” of her symptoms. Dkt. 26 at 16 (typeface and capitalization
altered). More specifically, Plaintiff argues that the R&R “errs by assuming [that] the ALJ could
properly support his rejection of [Plaintiff’s] testimony by cherry picking isolated facts about
[her] daily activities without at least minimally discussing evidence and testimony in the record
consistent with [Plaintiff’s] subjective statements.” Id. at 19. Plaintiff claims that the R&R
“wrongly finds [that] the ALJ had no responsibility to consider [Plaintiff’s] testimony concerning
physical limitations, such as her right-side heaviness, problems carrying anything over ten
pounds, difficulties walking and shopping, and fatigue, or [her] testimony concerning her mental
limitations, such as her anxiety when driving and trouble concentrating.” Id. at 18–19 (emphasis
27 added). In short, the core of Plaintiff’s argument is that the ALJ improperly ignored
contradictory testimonial evidence and that the R&R “fails to recognize” as much.
Plaintiff’s characterization of the R&R is again inaccurate. Plaintiff raised substantially
the same argument in her initial motion, Dkt. 18-1 at 37–40, and the R&R includes a thorough
discussion of the evidence supporting the ALJ’s assessment of Plaintiff’s testimony, observing
that where the ALJ discounted Plaintiff’s testimony, he “articulated a specific, rational reason”
for doing so and “not[ed] . . . inconsisten[cies] with test results, physical examinations, and
Plaintiff’s own representations” of her activities of daily living. Dkt. 24 at 45–46.
As the Seventh Circuit has observed, an “ALJ need not . . . discuss every piece of
evidence in the record and is prohibited only from ignoring an entire line of evidence that
supports a finding of disability.” Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010); see also
Lane-Rauth, 437 F. Supp. 2d at 67; Goodman, 233 F. Supp. 3d at 109. Here, the Court is
satisfied that the ALJ considered all of the relevant evidence in the record and that his decision is
both supported by substantial evidence and adequately explained. There is, of course, a line
between exercising reasonable judgment in declining to cite and discuss every piece of evidence
and engaging in impermissible “cherry picking.” But, for the reasons set forth in the Report and
Recommendation, the Court is persuaded that the ALJ’s decision does not cross that line.
Likewise, assessment of Plaintiff’s symptoms and their consistency with record evidence
“is solely within the realm of the ALJ and is only to be disrupted when an ALJ fails to articulate
a rational explanation for his or her finding.” Davis v. Saul, 2020 WL 3542232, at *4 (D.D.C.
June 30, 2020) (internal quotation marks omitted) (quoting Grant v. Astrue, 857 F. Supp. 2d 146,
156 (D.D.C. 2012)). In arguing that the ALJ erred by failing to credit Plaintiff’s testimony that
she self-imposes restrictions on driving at night, gets anxious while driving under certain
28 conditions, and has difficulty lifting items heavier than ten pounds while grocery shopping, see
Dkt. 26 at 17, Plaintiff asks this Court to reweigh the evidence. Under the applicable, highly
deferential standard of review, see Jackson ex rel. M.J.J. v. Berryhill, 249 F. Supp. 3d 141, 145–
46 (D.D.C. 2017), the Court cannot do so.
Finally, Plaintiff incorrectly asserts that the Report and Recommendation “finds [that] the
ALJ had no responsibility to consider [Plaintiff’s] testimony concerning physical limitations,”
Dkt. 26 at 18 (emphasis added). To the contrary, the R&R accurately concludes that the ALJ did
consider that testimony and offered specific, rational reasons for discounting that testimony, Dkt.
24 at 45–46. Because Plaintiff’s objections largely rehash the same arguments that she made in
her initial motion and because she points to no specific legal or factual error in the Report’s
assessment, the Court adopts the R&R’s discussion in full.
C. Plaintiff’s Objection Regarding the ALJ’s Use of the Grids
Plaintiff’s final objection to the Report and Recommendation—that it “fails to recognize
that the ALJ erred as a matter of law by using the medical-vocational guidelines,” known as the
“Grids,” in rendering his decision—fares no better. Dkt. 26 at 19 (capitalization and typeface
altered).
As the Supreme Court has explained, an ALJ may use the Grids in appropriate
circumstances, but “only when they describe a claimant’s abilities and limitations accurately.”
Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983); see also id. at 467–68. “If an individual’s
capabilities are not described accurately by a rule [in the Grids], the regulations make clear that
the individual’s particular limitations must be considered.” Id. at 462 n.5. Notably, the Grids
“do not take into account nonexertional impairments.” Smith v. Bowen, 826 F.2d 1120, 1122
(D.C. Cir. 1987). As the relevant regulation explains:
29 Since the rules are predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs, they may not be fully applicable where the nature of an individual’s impairment does not result in such limitations, e.g., certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental restrictions. Environmental restrictions are those restrictions which result in inability to tolerate some physical feature(s) of work settings that occur in certain industries or types of work, e.g., an inability to tolerate dust or fumes.
20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e) (emphasis added).
Thus, “if the claimant has exertional and nonexertional limitations and is not disabled
based on strength limitations alone,” Smith, 826 F.2d at 1122, then the Grids “provide [merely] a
framework for consideration of how much the individual’s work capability is further diminished
in terms of any types of jobs that would be contraindicated by the nonexertional limitations[,]”
but “full consideration must be given to all of the relevant facts in the case[.]” 20 C.F.R. Pt. 404,
Subpt. P, App. 2, § 200.00(e)(2) (emphasis added). Most importantly, when a claimant’s
particular limitations require that the Grids be used merely as a “framework,” the Commissioner
“must introduce vocational evidence to determine whether a significant number of jobs exist in
the national economy that the Plaintiff may perform.” Davis v. Shalala, 862 F. Supp. 1, 9
(D.D.C. 1994).
Here, although the ALJ heard testimony from a vocational expert, he did not rely on that
testimony to decide whether there were sufficient jobs in the national economy that Plaintiff
could perform, Dkt. 15-2 at 25, 92–95, and, instead, consulted the Grids to determine whether
Plaintiff was disabled under the statute and relevant regulations, id. at 25. Plaintiff’s original
motion argued that the ALJ’s exclusive reliance on the Grids was error because she “has a
combination of exertional and nonexertional limitations,” for which the Grids do not account.
Dkt. 18-1 at 43. The R&R considers and rejects that argument. See Dkt. 24 at 58–62.
30 Plaintiff now argues that the ALJ’s exclusive reliance on the Grids was error because, on
her telling, the record conclusively establishes that she has “non-exertional limitations,” Dkt. 26
at 19, and “[t]he unrefuted medical opinions of Drs. Dennis, Nolte, Bedeau, and Goo” establish
that she also has “exertional limitations which preclude [her from] performing the full range of
light work,” id. at 22. The major premise of Plaintiff’s argument is correct: If a claimant “has
exertional and nonexertional limitations and is not disabled based on strength limitations alone,”
Smith, 826 F.2d at 1122, then the ALJ may not rely exclusively on the Grids. See Davis, 862 F.
Supp. at 8–9; see Dkt. 26 at 20–21. The minor premises of Plaintiff’s argument, however, are
incorrect—that is, despite Plaintiff’s arguments to the contrary, substantial evidence supports the
ALJ’s RFC determination that she was capable of performing “the full range of light work with
no additional [non-exertional or relevant exertional] restrictions,” Dkt. 24 at 62; see id. at 54–57,
60 n.30; see also, e.g., Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000) (“If impairments are
solely exertional or the nonexertional impairments do not sufficiently affect the claimant’s
residual functional capacity, then the Commissioner may rely exclusively on the Grids to
determine whether there is other work in the economy that the claimant can perform.”);
Graham v. Comm’r of Soc. Sec., 622 F. App’x 841, 843 (11th Cir. 2015) (“Because the ALJ
found [the plaintiff’s] subjective complaint of [non-exertional limitation] not fully credible, there
was no error in relying exclusively on the [Grids] as the ALJ did not find that [the plaintiff] had a
nonexertional impairment.”).
With respect to the ALJ’s determination that Plaintiff could perform the full range of
light work, the ALJ reasonably found that “[p]hysical examinations have generally shown that
the claimant has a normal range of motion in both of her upper and lower extremities, which
would support finding that she is capable of performing the full range of light work” and that she
31 “has intact hand and finger dexterity, normal grip strength bilaterally, intact sensation
throughout, normal reflexes, and normal muscle tone,” which “would support not including
environmental or manipulative limitations.” Dkt. 15-2 at 20. The ALJ cited non-medical
evidence supporting his findings as well, such as Plaintiff’s testimony that she could drive and
had no restriction on her license, her reports to health care providers that she could independently
perform activities of daily living, and her function report, which stated that she could prepare
meals and perform household chores and which failed to note any issues with kneeling,
squatting, bending, reaching, or seeing. Id. at 22. Based on this evidence, the ALJ rejected the
opinions of Drs. Goo, Bedeau, Nolte, and Dennis to the extent that they recommended additional
limitations, such as the State agency consultants’ proposed restrictions on balancing, stooping,
climbing, and exposure to workplace hazards; Dr. Nolte’s proposed restriction on balancing and
walking on uneven surfaces; and Dr. Dennis’s proposed restriction on carrying more than ten
pounds. Id. at 23–24; see Dkt. 15-22 at 104.
As for non-exertional limitations, the ALJ reasonably found that the evidence did “not
support including mental limitations such as limiting the claimant to unskilled or low-stress work
in her residual functional capacity.” Dkt. 15-2 at 22. He cited medical evidence in the record
that Plaintiff was “alert and well-oriented, ha[d] appropriate thought contact, and intact insight
and judgment;” had “intact language and comprehension skills and [was] able to follow complex
commands;” could “recall three / 3 words after a brief delay on at least one occasion;” had
“normal concentration and attention, could spell words backwards and forwards, could perform
serial 3s, and was able to count and perform calculations with quarters;” “was pleasant and
cooperative, was able to dress and groom herself appropriately, and maintained good eye
contact;” and, according to the “vast majority of mental status examinations[,] . . . had a normal
32 mood and affect.” Id. The ALJ also cited non-medical evidence, such as Plaintiff’s testimony
that she could drive a car, “which would require her to be able to perform tasks of varying
intellectual complexity, maintain functional levels of concentration, and be able to adapt to
potentially stressful situations;” could shop in stores, “which would require her to be able to
interact with others appropriately and adapt to potentially stressful situations such as crowding;”
and could “pay bills, count change, handle a savings account, and use a checkbook, which would
require her to be able to maintain functional levels of concentration and perform tasks of varying
intellectual complexity.” Id. at 23.
Plaintiff offers two responses, neither of which is persuasive. First, with respect to non-
exertional restrictions, she notes that, at the hearing, the ALJ asked the vocational expert a
question about a hypothetical person who had non-exertional limitations. Dkt. 26 at 23. But a
hypothetical is just that. It is not evidence. Nor does it mean, as Plaintiff submits, “that the ALJ
concluded that the non-exertional limitations that he listed were supported by [Plaintiff’s]
medical evidence of record.” Id.
Second, with respect to her RFC, Plaintiff merely re-surfaces the evidence discussed
above, namely the opinions of Drs. Dennis, Nolte, Bedeau, and Goo. See Dkt. 26 at 22. But
Plaintiff does not argue that the ALJ’s determination with respect to her RFC is unsupported by
substantial evidence; instead, she simply points to evidence supporting the opposite conclusion.
In that respect, Plaintiff “appears to be asking this [C]ourt to conduct a de novo review of the
ALJ’s decision and reweigh the evidence.” Jackson, 249 F. Supp. 3d at 147. That argument
ignores the proper standard of review, which requires that the Court uphold the ALJ’s findings if
they are “‘supported by substantial evidence’ and ‘not tainted by an error of law.’” Ali v. Colvin,
236 F. Supp. 3d 86, 90 (D.D.C. 2017) (quoting Porter, 951 F. Supp. 2d at 129). Indeed, “[i]f
33 supported by substantial evidence, the Commissioner’s finding[s] must be sustained ‘even where
substantial evidence may support the plaintiff’s position and despite that the court’s independent
analysis of the evidence may differ from the [Commissioner’s].’” Id. (final alteration in original)
(quoting Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992)); see also Morales v.
Berryhill, 484 F. Supp. 3d 130, 140 (S.D.N.Y. 2020) (“Even where the administrative record
may also adequately support contrary findings on particular issues, the ALJ’s factual findings
must be given conclusive effect so long as they are supported by substantial evidence.” (quoting
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010))); Kober v. Apfel, 133 F. Supp. 2d 868, 873
(W.D. Va. 2001) (“The Commissioner’s decision, ‘if supported by substantial evidence, must be
affirmed even though the reviewing court believes that substantial evidence also supports a
contrary result.’” (quoting Estep v. Richardson, 459 F.2d 1015, 1017 (4th Cir. 1972))). Here, the
ALJ’s findings are supported by substantial evidence.
CONCLUSION
For these reasons, the Court rejects Plaintiff’s objections and ADOPTS in full Magistrate
Judge Harvey’s well-reasoned Report and Recommendation, Dkt. 24. The Court, accordingly,
will DENY Plaintiff’s motion for judgment of reversal, Dkt. 18, and will GRANT the
Commissioner’s motion for judgment of affirmance, Dkt. 20.
A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: June 3, 2024
Related
Cite This Page — Counsel Stack
Miller v. Saul, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-saul-dcd-2024.