Rogers v. Kijakazi

• Court: District Court, District of Columbia
• Decided: October 25, 2023
• Docket: Civil Action No. 2021-3059
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) YAMISE R., 1 ) ) Plaintiff, ) ) v. ) Case No. 1:21-cv-3059 (GMH) ) KILOLO KIJAKAZI, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Plaintiff, Yamise R., brought this action seeking to reverse the final decision of the Acting

Commissioner of Social Security, Kilolo Kijakazi (“Defendant” or “the Commissioner”), affirm-

ing the cessation of her Disability Insurance Benefits (“DIB”) under Title II of the Social Security

Act, 42 U.S.C. § 405(g). She alleges that the Administrative Law Judge (“ALJ”) erred in several

respects when determining that Plaintiff had the residual functional capacity (“RFC”) to perform

light work with some additional limitations. More specifically, she contends that the RFC contains

vague language and does not account for her moderate limitations in concentration, persistence,

and pace. She also argues that the ALJ did not properly conduct a function-by-function analysis

and did not properly evaluate the medical evidence. Plaintiff seeks reversal of the Commissioner’s

decision and a judgment that she is entitled to benefits or, in the alternative, remand for a new

1 Plaintiff’s name has been partially redacted in accordance with the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. See Memorandum from Hon. Wm. Terrell Hodges, Chair, Comm. on Ct. Admin. & Case Mgmt. to Chief Judges of the U.S. Cts. of Appeals, Chief Judges of the U.S. Dist. Cts., Clerks of the U.S. Cts. of Appeals, and Clerks of the U.S. Dist. Cts. (May 1, 2018), https://www.uscourts.gov/sites/default/files/18-ap-c-suggestion_cacm_0.pdf [https://perma.cc/N9T2-U5XG] (cap- tured July 11, 2023).

1 administrative hearing. The Commissioner argues that the ALJ’s decision denying Plaintiff ben-

efits should be affirmed.

Based on the parties’ arguments and review of the record, Plaintiff’s motion for remand is

granted and Defendant’s motion for judgment of affirmance is denied. 2

I. BACKGROUND

A. Statutory and Regulatory Framework

To be eligible for benefits under the Social Security Act, the Social Security Administration

(“SSA”) must find a claimant to be “disabled,” meaning that the individual is “unable to engage

in any substantial gainful activity by reason of any medically determinable physical or mental

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

for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Once having

received benefits, a recipient may thereafter be found no longer be eligible for such benefits if “the

physical or mental impairment on the basis of which such benefits are provided has ceased, does

not exist, or is not disabling.” 42 U.S.C. § 423(f). For that reason, if a claimant is found to be

entitled to DIB, his or her “continued entitlement to such benefits must be reviewed periodically.”

20 C.F.R. § 404.1594(a). To determine if a recipient of DIB continues to be disabled, an ALJ

follows an eight-step sequential evaluation process:

Step one: whether claimant is engaging in “substantial gainful activity;” 3

2 The relevant docket entries for purposes of this Memorandum Opinion are (1) the administrative record, ECF No. 14; (2) Plaintiff’s motion for judgment of reversal, ECF No. 20; (3) Defendant’s motion for judgment of affirmance and opposition to Plaintiff’s motion for judgment of reversal, ECF No. 21; and (4) Plaintiff’s opposition to Defendant’s motion for judgment of affirmance/reply in further support of Plaintiff’s motion for judgment of reversal, ECF No. 27. The page numbers cited herein are those assigned by the Court’s CM/ECF system. 3 “Substantial gainful activity” is work that “[i]nvolves doing significant and productive physical or mental duties” and is “done (or intended) for pay or profit.” 20 C.F.R. § 416.910; see also 20 C.F.R. § 404.1510 (defining “substantial gainful activity” for the purposes of Social Security disability insurance benefits (“DIB”) claims). “If [the claimant is] doing substantial gainful activity, [the SSA] will find that [the claimant is] not disabled.” 20 C.F.R. § 416.920(a)(4)(i); see also 20 C.F.R. § 404.1520(a)(4)(i) (defining the step one inquiry for DIB claims).

2 Step two: whether claimant has an impairment or combination of impairments which meets or medically equals the criteria of an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the “Listings”);

Step three: whether medical improvement has occurred; 4

Step four: if so, whether medical improvement is related to the ability to work; 5

Step five: if an exception to medical improvement applies; 6

Step six: whether all of the claimant’s current impairments in combination are severe; 7

4 “Medical improvement is any decrease in medical severity of [a claimant’s] impairment(s)” present at the time of the most recent favorable decision. 20 C.F.R. § 404.1594(b)(1). Medical improvement “must be based on improve- ment in . . . symptoms, signs and/or laboratory findings.” Id. If medical improvement has occurred “as shown by a decrease in medical severity,” the analysis proceeds to the fourth step. Id. If not, it skips to the fifth step. 5 Medical improvement is related to the ability to work if there has been (1) “a decrease in the severity . . . of the impairment(s) present at the time of the most recent favorable medical decision,” and (2) “an increase in [the claim- ant’s] functional capacity to perform basic work activities.” 20 C.F.R. § 404.1594(b)(3). Put another way, this step determines “whether or not there has been an increase in the residual functional capacity based on [a consideration of] the impairment(s) . . . present at the time of the most recent favorable medical determination.” Id. § 404.1594(f)(4). If the medical improvement is not related to the ability to work, the analysis proceeds to step five. If it is related to the ability to work, then the analysis skips to step six. 6 The regulations “provide[] for certain limited situations when [a claimant’s] disability can be found to have ended even though medical improvement has not occurred.” 20 C.F.R. § 404.1594(d). Such exceptions fall into two cate- gories: the first category concerns situations where medical improvement has not occurred but the claimant is engaged in substantial gainful activity and includes: (1) “advances in medical or vocational therapy or technology” increasing a claimant’s ability to work, id. § 404.1594(d)(1); (2) “vocational therapy” such as “additional education, training, or work experience that improves [the claimant’s] ability to meet the vocational requirements of more jobs,” id. § 404.1594(d)(2); (3) evidence that the “impairment(s) is not as disabling as it was considered to be at the time of the most recent favorable decision,” based on “new or improved diagnostic or evaluative techniques,” id. § 404.1594(d)(3); (4) a finding that “[s]ubstantial evidence demonstrates that any prior disability decision was in error,” id. § 404.1594(d)(4); or (5) a finding that the claimant is “currently engaging in substantial gainful activity,” id. § 404.1594(d)(5). If an exception under the first category is found, the analysis proceeds to step six. The second category of exceptions do not require a determination that the claimant has “medically improved or can engage in substantial gainful activity,” id. § 404.1594(e) and includes circumstances where: (1) a claimant’s “prior determination or decision [finding disability] was fraudulently obtained,” id. § 404.1594(e)(1); (2) the claimant does not “cooperate” with the agency, id. § 404.1594(e)(2); (3) the agency is “unable to find” the claimant, id. § 404.1594(e)(3); and (4) the claimant “fail[s] to follow prescribed treatment which would be expected to restore [the claimant’s] ability to engage in substantial gainful activity,” id. § 404.1594(e)(4). If an exception under the second category is found, the “disability will be found to have ended.” Id. § 404.1594(f)(5). If no exceptions apply, the disability will be found to continue. Id. 7 An impairment or combination of impairments is “severe” if it “significantly limit[s]” a claimant’s “physical or mental ability to do basic work activities,” such as “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “seeing, hearing, [or] speaking”; “[u]nderstanding, carrying out, and remembering simple in- structions”; exercising judgment; “[r]esponding appropriately to supervision, co-workers[,] and usual work situa- tions”; or “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.922; see also 20 C.F.R. § 404.1522 (defining a severe impairment for the purposes of DIB claims).

3 Step seven: whether, given her residual functional capacity, she can perform past relevant work; 8

Step eight: whether other work exists that the claimant can perform, given her residual functional capacity and considering her age, education, and past work experience.

See 20 C.F.R. 404.1594(f); see Glass v. Kijkazi, No. 21-cv-5141, 2022 WL 566488 (D.C. Cir. Feb.

23, 2022) (noting that an ALJ uses the eight step analysis in 20 C.F.R. 404.1594(f) when “con-

ducting a periodic review of whether [claimant’s] previously established disability persists”); see

also Dowling v. Commissioner of Soc. Sec. Admin., 986 F. 3d 377, 383 (4th Cir. 2021) (“SSA

regulations establish an eight-step procedure for determining whether a recipient of disability in-

surance benefits continues to be disabled.” (citing 20 C.F.R. § 404.1594(f)(1)–(8))).

B. Plaintiff’s Disability Claims and Procedural History

Plaintiff was born in 1972. ECF No. 14-2 at 27. She has a high school diploma and trade

school certifications in armed security, CNA nursing, and as a home health aide. Id. at 65–66.

Her earning records show annual earnings between about $1,000 and $7,000 from 2000 to 2004

and between about $10,000 and $14,000 from 2010 to 2019. ECF No. 14-5 at 16.

Plaintiff originally filed for DIB on April 9, 2008, and was found to be disabled on August

8, 2008, with an onset date of January 1, 2007. ECF No. 14-3 at 2; ECF No. 14-5 at 2. The primary

diagnosis supporting her disability was affective disorders, with the secondary diagnosis of anxiety

disorders. ECF No. 14-3 at 2; see also ECF No. 14-4 at 2 (notice of cessation of benefits identi-

fying that claimant was originally “determined to be disabled . . . due to depression and anxiety”).

On June 10, 2019, the Social Security Administration (“SSA”) determined that Plaintiff’s

8 “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.” 20 C.F.R. § 416.960(b)(1); see also 20 C.F.R. § 404.1560(b)(1) (defining “past relevant work” for the purposes of DIB claims). If the claimant can perform his or her past relevant work, a finding of “not disabled” is mandated. 20 C.F.R. § 416.920(a)(4)(iv); see also 20 C.F.R. § 404.1520(a)(4)(iv) (defin- ing the step four inquiry for DIB claims).

4 disability had ceased as of August 31, 2019. ECF No. 14-3 at 13; ECF No. 14-4 at 2–4. At that

time, Plaintiff alleged that she had “degenerative bone disease, lower lumbar back [sic], HBP,

keratoconus eye disease, [and] 20 % hearing loss in right ear.” ECF No. 14-3 at 9. The SSA

scheduled an examination of Plaintiff, at the agency’s expense, to determine whether her disability

continued. Id. Plaintiff did not attend the examination. Id. Finding that there was “insufficient

evidence on which to base a determination” that her disability continued, the SSA terminated

Plaintiff’s benefits. Id. at 10–12.

In June 2019, Plaintiff filed a request for reconsideration. ECF No. 14-4 at 5. A hearing

before a state agency disability hearing officer was scheduled for December 3, 2019, but Plaintiff

failed to appear for the hearing. Id. at 11, 23, 26; see also ECF No. 14-2 at 45. Thereafter, she

was again determined to be not disabled. ECF No. 14-4 at 30. Plaintiff then requested a hearing

before an ALJ in April 2020. Id. at 37. The hearing took place on December 1, 2020, and the ALJ

decision stemming from that hearing is the subject of the parties’ pending motions in this matter.

ECF No. 14-2 at 61; ECF No. 14-4 at 53.

At the hearing before the ALJ, Plaintiff testified that she graduated from high school and

went to trade school for nursing and homeland security. ECF No. 14-2 at 65. She stated that for

the past eight or ten years she has been working as a self-employed nurse, earning about $10,000

each year, but she stopped working around 2019. Id. at 67, 85. When the ALJ mentioned that the

Plaintiff had originally been found disabled due to mental health impairments, Plaintiff asserted

that was “not the truth” and that any document so stating was “fraud.” Id. at 68. Plaintiff main-

tained that she was “found disabled for physical issues” after “a bad car accident” in 2008 after

which she could not walk. Id. She added that she had an impairment to her eyesight, asserting

that she has an “eye disease” and is “nearly blind.” Id. at 69. Plaintiff also alleged that she had

5 “degenerative bone disease in the spine.” Id. She denied filing a claim for disability based on

mental health impairments but explained that she underwent mental health therapy between 1999

and 2006 for “stress.” Id. at 71–72.

With regard to her physical limitations, Plaintiff testified she was able to lift twenty pounds,

but “not too often,” and able to lift “maybe five or ten pounds” frequently throughout the day. Id.

at 80. She testified that “depending on the weather conditions,” she could walk or stand for about

an hour to an hour and a half before she would need to sit for “a few minutes or maybe about thirty

minutes or so.” Id. at 80–81. Plaintiff lives on the second floor of an apartment building and

climbs the twelve stairs to her home as needed. Id. at 84. Regarding her eyesight, Plaintiff testified

that her vision comes and goes and “could be good for two or three months” and then “out” for a

few months. Id. at 81–82. During these periods she cannot see clearly, experiencing blurred vision

and infection. Id. at 82. Plaintiff takes public transit unless necessary due to “car accidents and

history” and drives only when she can see clearly. Id. at 81. Plaintiff further testified that a nurse

comes to assist her each day with housecleaning. Id. at 85–86.

Following Plaintiff’s testimony, the ALJ presented a series of hypothetical questions to a

vocational expert. First, the ALJ proposed an individual who could perform at any exertional level

but was limited to

jobs that have only simple tasks, decisions, and instructions, not performed in a fast-paced production environment. Simple being defined as the terms used in the DOT describing SVP levels 1 or 2. And they’d be limited to occupations not in- volving high levels of stress, i.e., those requiring independent decision-making, or occupations at which close supervision or close interaction with co-workers or the general public. Close, meaning no more than occasional.

Id. at 91–92. The vocational expert testified that a hypothetical person, so limited, would be unable

to perform Plaintiff’s past work. Id. at 92.

6 When the ALJ further limited the hypothetical individual to light work and added the Plain-

tiff’s age, education, and work history, the vocational expert testified that such an individual could

perform multiple jobs in the national economy, including routing clerk, collator operator, or

marker. Id. When the hypothetical individual was further limited by the ALJ to only “occasional

climbing of ramps and stairs only—[meaning] no ladders, no ropes, no scaffolds; occasional bal-

ancing, stooping, crouching, crawling, and kneeling[; and avoiding] hazards, such as unprotected

heights, moving machinery, commercial driving,” the vocational expert testified that the hypothet-

ical individual would still be able to perform the identified jobs. Id. at 93. However, the vocational

expert stated that if hypothetical individual was off task for more than ten percent of the workday

on a consistent basis due to symptoms of impairments, such as vision issues or needing to take

unscheduled breaks, that individual would not be able to continue in those jobs, and there would

be “no work” in the national economy for her. Id. at 93–94.

C. The ALJ’s Decision

Following the hearing, the ALJ issued his decision denying benefits on May 6, 2021. ECF

No. 14-2 at 42–55. That decision became the final decision of the Commissioner when the Appeals

Council denied Plaintiff’s request for review on September 14, 2021. Id. at 2–5. The following

summary of the ALJ’s decision will focus on those issues Plaintiff has identified in her appeal to

this Court.

1. Substantial Gainful Employment, Severe Impairments, and the Listings

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

through the date of his May 6, 2021 decision. ECF No. 14-2 at 47.

At step two, he found that since June 10, 2019, Plaintiff had the following medically de-

terminable impairments: mood/affective disorder, generalized anxiety disorder, lumbago, low

7 vision, and obesity. Id. He then found that Plaintiff did not have an impairments or combination

of impairments that meets or medically equaled the criteria of an impairment in the Listings. Id.

at 48–49. He first considered Listings 1.00, 1.15, and 1.16 for musculoskeletal impairments. Id.

at 48. He found that the medical evidence failed to establish that Plaintiff could not use “one upper

extremity to independently initiate, sustain, and complete work-related activities involving fine

and gross movements.” Id. Nor did the record show that she needs “a walker, bilateral canes, or

bilateral crutches or a wheeled and seated mobility device involving the use of both hands, as

required by listings 1.15 and 1.16.” Id.

As to Listings 2.02 and 2.04 related to visual impairments, the ALJ found that the evidence

did not establish that claimant’s vision in her better eye after “best correction” was 20/200 or less,

or that her “visual efficiency of the better eye is 20% or less after best correction,” so the require-

ments of Listings 2.02 and 2.04 were not met. Id. The ALJ also found that the Listing in Appendix

1 no longer contain a specific category for evaluating obesity, but he considered the “possible

effects of [Plaintiff’s] obesity in the assessment of claimant’s residual function capacity” and found

that her obesity did not “cause[] limitations of listing level severity.” Id.

As to Plaintiff’s mental impairments, the ALJ looked at Listings 12.04 and 12.06 and found

that whether considered singly or in combination, the severity of her mental impairments did not

meet those required in either Listing. Id. In determining whether the paragraph B criteria were

satisfied, the ALJ determined that Plaintiff had a moderate limitation in understanding, remember-

ing, or applying information; a moderate limitation in interacting with others; a moderate limitation

in concentration persistence or pace; and a moderate limitation in adapting or managing oneself.

Id. (citing ECF No. 14-9 at 81–95). Because Plaintiff did not have “at least one ‘extreme’ limita-

tion or two ‘marked’ limitations” in any of those domains, the ALJ found that the paragraph B

8 criteria were not satisfied. Id. at 49. Similarly, the ALJ found that the paragraph C criteria were

not satisfied because the record did not establish that Plaintiff has only “a minimal capacity to

adapt to changes in the claimant’s environment or to demands that are not already part of the

claimant’s daily life.” Id.

2. Medical Improvements

At step three, the ALJ found that there have been medical improvements to Plaintiff’s im-

pairments, and that by June 10, 2019, “there had been a decrease in medical severity of the impair-

ments present at the time of the CPD of August 8, 2008.” 9 Id. He also noted that Plaintiff was

“adamant” in her testimony that her previous disability finding was due to “injuries incurred in a

motor vehicle accident” and “not due to any mental health issues.” Id. However, the ALJ found

that Plaintiff was originally found disabled by the state agency in August 2008 based on diagnoses

of affective disorder and generalized anxiety disorder, “with marked limitation in the social func-

tioning domain and moderate limitation in maintaining concentration, persistence, or pace.” Id. at

49–50 (citing ECF No. 14-7 at 62–76). Since then, the ALJ found that Plaintiff “has had no pro-

fessional mental health treatment and treatment records from the pain clinic very consistently note

normal mood and affect.” Id. (citing ECF No. 14-9 at 113–49). In addition, the ALJ considered a

report from a psychological consultative examiner from August 2019, which, although it noted

“no current mental health treatment,” also found that Plaintiff reported symptoms of depression

and anxiety, had a history of a physical attack, had appropriate social skills, full affect, irritable to

euthymic mood, mildly impaired attention and concentration, intact memory, and diagnoses in-

cluding major depressive disorder and posttraumatic stress disorder. Id. at 50 (citing ECF No. 14-

9 at 55–62).

9 A “comparison point decision” or “CPD” is the most recent favorable medical decision finding a claimant disabled. ECF No. 14-2 at 47.

9 At step four, the ALJ found that Plaintiff’s medical improvement was related to her ability

to work because her RFC, as set forth below, was less restrictive than the one she had in August

2008. Id. at 50. As a result, the ALJ proceeded to step six of the sequential analysis, assessing

whether Plaintiff’s current impairments singly or in combination were severe. See supra note 5.

The ALJ concluded that Plaintiff’s current impairments of “mood/affective disorder, generalized

anxiety disorder, lumbago, low vision, and obesity” were severe because they caused more than

minimal limitations in her ability to perform basic work activities. Id.

3. Plaintiff’s RFC

At step seven, the ALJ determined Plaintiff’s RFC based on her current impairments, find-

ing that, since June 10, 2019, she had the capacity to perform “light work,” 10 except that she is

limited to occasionally climbing ramps or stairs; can only occasionally balance, stoop, crouch,

crawl, or kneel; and must “avoid hazards such as unprotected heights, moving machinery, and

commercial driving.” Id. She is further limited to “jobs that have only simple tasks, decisions,

and instructions, not performed in a fast-paced production environment, with simple being defined

as the term is used in the DOT describing SVP levels 1 or 2”; and to “occupations not involving

high levels of stress, such as those requiring independent decision making, or occupations subject

to close supervision or close interaction with coworkers, or the general public, with close meaning

no more than occasional.” Id.

In determining that RFC, the ALJ first found that Plaintiff’s medically determinable im-

pairments could reasonably have been expected to cause her alleged symptoms related to her men-

tal impairments, eye condition, and back pain. ECF No. 14-2 at 51. However, the ALJ found that

10 The regulations define “light work” as involving “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, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. 404.1567(b); ECF No. 14-2 at 50.

10 Plaintiff’s statements as to the intensity, persistence, and limiting effects of those symptoms were

“not entirely consistent” with the record evidence. Id. To explain that conclusion, the ALJ ad-

dressed the “objective” evidence in the record from Plaintiff’s treatment notes and considered other

evidence in the record, including Plaintiff’s own reports of her activities of daily living, as well as

medical opinions from psychological consultative examiners. Id. at 51–54.

The ALJ first explained that Plaintiff was found disabled in August 2008 by the state

agency with diagnoses of affective disorder and generalized anxiety disorder, with a marked imi-

tation in social functioning and a moderate limitation in maintaining concentration, persistence, or

pace. Id. at 51 (citing ECF No. 14-7 at 62–76). However, the ALJ found that, since that initial

finding of disability based on her mental health impairments, Plaintiff has had no professional

mental health treatment and her treatment records from a pain clinic “consistently note [her] nor-

mal mood and affect.” Id. (citing ECF No. 14-9 at 113–49). The ALJ also noted that a psycho-

logical consultative examiner found in August 2019 that Plaintiff was undergoing no mental health

treatment, but that she reported symptoms of depression and anxiety, had a history of a physical

attack, had mental status examinations finding that she was somewhat irritable but cooperative,

had appropriate social skills, full affect, irritable to euthymic mood, mildly impaired attention and

concentration, and intact memory, and had diagnoses including major depressive disorder and

posttraumatic stress disorder. Id. (citing ECF No. 14-9 at 55–62).

When assessing Plaintiff’s back impairments, the ALJ noted that she testified that “she can

lift 20 lbs. but not too often, she can lift 5-10 lbs. [F]requently, she has problems standing and

walking, she can stand or walk for an hour to an hour and a half, then will have to sit for half an

hour, and she is prescribed pain medication for her back.” Id. at 52. The ALJ also noted that

11 Plaintiff lives on the second floor of her apartment building and takes about twelve stairs to get

there daily or whenever needed. Id.

Assessing the medical evidence as it pertained to Plaintiff’s back impairments, the ALJ

first pointed to an MRI in November 2018 that “showed only minimal findings.” Id. (citing ECF

No. 14-9 at 14). He found that Plaintiff was next seen at a spine clinic in June 2019, where she

reported that she was “minimally improved with trigger point injections,” and upon examination

she presented with tenderness to palpation, positive straight leg raise testing, and intact strength

and sensation. Id. (citing ECF No. 14-9 at 11–12). Plaintiff was diagnosed with lumbar radicu-

lopathy, spondylosis, lumbago, and fibromyalgia and recommended to undergo physical therapy

and to continue her medications. Id. The ALJ then observed that Plaintiff started treatment for

her back pain at a pain center in July 2019, where she reported 8/10 low back pain, radiating into

her lower extremities, from a motor vehicle accident in 2008. Id. (citing ECF No. 14-9 at 145–

46). Upon examination, she was found to have Trendelenburg gait, 5/5 strength in all groups

except for the right lower extremity where she had 4/5 strength, intact sensation, lumbar range of

motion limited due to pain, tenderness to palpation, and negative straight leg raise testing. Id. She

was diagnosed with low back pain with radicular symptoms, arthropathy, and lumbar spondylolis-

thesis and started on a trial of Vicodin. Id.

Thereafter, in January 2020, Plaintiff reported “shooting pain rated 10/10,” and examina-

tion findings were unchanged. Id. (citing ECF No. 14-9 at 142–43). In February 2020, Plaintiff

had two MRIs showing a small bulge at L4–L5 with minimal stenosis, “no evidence of sacroiliitis,

mild degenerative changes at the bilateral sacroiliac joints, and slight anterior angulation of the

distal coccygeal segments.” Id. (citing ECF No. 14-9 at 148–49). The ALJ noted that at a follow-

up appointment, the MRI showed “left lateral tilt that can contribute to coccydynia,” and Plaintiff

12 was prescribed pain medication. Id. (citing ECF No. 14-9 at 136–39). Turning to March 2020, the

ALJ observed that records showed that Plaintiff’s low back pain improved without injections, and

that she would reschedule injections as needed. Id. (citing ECF No. 14-9 at 134–35). And at a

follow-up appointment in April 2020, it was noted that Plaintiff’s “medication was . . . working

well,” and that she reported that she was “doing quite well,” “tries to stay active,” walks, and “uses

a cushion for prolonged sitting.” Id. (citing ECF No. 14-9 at 131–32). Moreover, Plaintiff reported

in July 2020 that she was able to relieve even her worst pain with ice and heat, and it was noted

that her pain management regimen was “controlling” her low back pain. Id. (citing ECF No. 14-

9 at 128–29). In December 2020, while Plaintiff reported an increase in pain in the winter due to

fibromyalgia, she had “unremarkable” examination findings and was noted to be “stable on med-

ication.” Id. (citing ECF No. 14-9 at 118–21). Finally, the ALJ observed that in January 2021

Plaintiff was noted to be “stable,” that no medicine was detected in her urine, and her prescription

medicine had not been renewed for months. Id. The ALJ also acknowledged Plaintiff’s weight of

202 lbs. and stated that he factored any limitations resulting from her obesity into the RFC assess-

ment. Id. at 53.

After reviewing this evidence concerning Plaintiff’s back condition, the ALJ determined

that her RFC would be limited to light work. Id.

Next, the ALJ assessed Plaintiff’s visual impairments. He started by noting that Plaintiff

testified that she has a driver’s license, owns a car, drives when her sight is clear, and sometimes

uses public transportation. Id at 52–53. Next, the ALJ acknowledged Plaintiff’s testimony that

her vision problems can come and go, and sometimes she has a total lack of vision, but other times

her vision is good. Id. at 53. The ALJ also noted that Plaintiff was recommended for a cornea

transplant, but according to Plaintiff, she had not yet scheduled the procedure because of its six-

13 month recovery period. Id. Plaintiff also testified that she had a nurse assist her eight hours per

day, seven days per week for the past three months because of her back and vision impairments.

Id.

The ALJ went on to examine Plaintiff’s eye records from May 2019, which report that her

visual acuity was 20/80 on the right and 20/40 on the left. Id. (citing ECF No. 14-8 at 43). At a

June 2019 evaluation, Plaintiff failed a contact lens trial due to infections, and her vision was

measured as 20/80 in right eye and 20/30 in the left. Id. (citing ECF No. 14-8 at 120–22). There,

the doctor diagnosed her with bilateral keratoconus, and she was encouraged to follow up for sur-

gical approval. Id. Plaintiff did not follow up until November 2020 when she complained of

blurred vision. Id. Again, contact lenses were recommended, and she was referred to an ophthal-

mologist after examination revealed bilateral superficial corneal scarring and thinning. Id. (citing

ECF No. 14-9 at 105–06). The record shows no additional follow up appointments with respect

to Plaintiff’s vision. Id. The ALJ also noted that in August 2019 Plaintiff reported to the psycho-

logical consultative examiner that “she drives when she can see well and she uses public transpor-

tation.” Id. (citing ECF No. 14-9 at 61).

After reviewing this evidence concerning Plaintiff’s visual impairment, the ALJ deter-

mined that her RFC would preclude work around hazards. Id.

The ALJ then moved to an assessment of the medical opinion evidence. ECF No. 14-2 at

53. An August 2019 report by Dr. Jessica Smedley, a psychological consultative examiner, con-

cluded that Plaintiff had major depressive disorder and posttraumatic stress disorder, and, as a

result, had moderate limitations in all interaction domains and in the domain of concentration,

persistence, and pace. Id. at 53 (citing ECF No. 14-9 at 55–62). Dr. Smedley concluded in her

report that “[t]he results of [Plaintiff’s] examination appear to be consistent with psychiatric

14 problems, and this may significantly interfere with the claimant's ability to function on a daily

basis.” ECF No. 14-9 at 61. “Weighing the evidence most favorably to [Plaintiff],” the ALJ found

the psychological consultative examiner’s opinion to be “somewhat persuasive.” Id. at 53. Nev-

ertheless, he observed that Dr. Smedley’s report noted that Plaintiff had not been in mental health

treatment since 2006, and that her spine clinic records “consistently note normal mood and affect.”

Id. at 51, 53.

The ALJ then turned to the state agency examination, noting that it found that Plaintiff

suffered only from mental health impairments and “indicated [she] can do simple routine tasks and

low stress work with moderate limitations in all domains.” Id. at 54 (citing ECF No. 14-9 at 77–

95). The ALJ found this opinion persuasive as to Plaintiff’s mental health limitations; however,

he found that the state agency “failed to consider” Plaintiff’s severe back and vision impairments,

as well as her obesity. Id.

Based on his review of these medical opinions and the “evidence of record as a whole,”

the ALJ determined that Plaintiff had the RFC as detailed above since June 10, 2019. Id.

4. Conclusion of the Eight-Step Sequential Inquiry

Relying on the vocational expert’s testimony based on that same RFC, the ALJ found that

Plaintiff would be precluded from performing her past relevant work as a certified nursing assistant

since June 10, 2019. ECF No. 14-2 at 54. However, continuing to rely on the vocational expert’s

testimony, the ALJ determined that considering Plaintiff’s age, education, work experience, and

RFC, there were jobs that existed in significant numbers in the national economy that she could

perform, including routing clerk, collator operator, and marker. Id. at 54–55. Accordingly, the

ALJ concluded that Plaintiff was not disabled since June 10, 2019. Id. at 55.

15 II. LEGAL STANDARD

A federal district court has jurisdiction over a civil case challenging a final decision of the

Commissioner. 42 U.S.C. § 405(g). A reviewing court must affirm the Commissioner’s decision

if it is based on substantial evidence in the record and the correct application of the relevant legal

standards. Id.; Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004).

“[T]he plaintiff bears the burden of demonstrating that the Commissioner’s decision is not

based on substantial evidence or that incorrect legal standards were applied. Lane-Rauth v. Barn-

hart, 437 F. Supp. 2d 63, 64 (D.D.C. 2006). Substantial evidence is “such relevant evidence as a

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

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

“more than a scintilla [of evidence], but can be satisfied by something less than a preponderance

of the evidence.” Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365–66 (D.C. Cir. 2003)

(quoting FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1160 (D.C. Cir. 2002)). “The

substantial evidence standard requires considerable deference to the decision rendered by the

ALJ.” Crosson v. Shalala, 907 F. Supp. 1, 3 (D.D.C. 1995). The reviewing court may neither

reweigh the evidence presented to it nor replace the Commissioner’s judgment “concerning the

credibility of the evidence with its own.” Id. at 3; see also Butler, 353 F.3d at 999 (finding that

the district court’s role is not to reweigh the evidence but only to determine whether the ALJ’s

findings are “based on substantial evidence and a correct application of the law”). However, “this

standard of review requires the Court to carefully scrutinize the entire record to ensure that the

Commissioner, through the ALJ, has both analyzed all of the evidence available and has suffi-

ciently explained his/her reasoning and the weights given to the facts.” Pinkney v. Astrue, 675 F.

Supp. 2d 9, 14 (D.D.C. 2009); see also Lane-Rauth, 437 F. Supp. 2d at 65 (“[T]his standard of

16 review ‘calls for careful scrutiny of the entire record,’ to determine whether the Commissioner,

acting through the ALJ, ‘has analyzed all evidence and has sufficiently explained the weight he

has given to obviously probative exhibits[.]’” (second alteration in original) (quoting Butler, 353

F.3d at 999)). Moreover, the Court’s job is to “consider the grounds actually proffered by the

ALJ” rather than to make those determinations for itself, Ward v. Berryhill, 246 F. Supp. 3d 202,

210 (D.D.C. 2017), or credit “post-hoc rationalization[s]” advanced by the parties, Cooper v. Ber-

ryhill, No. 16-cv-1671, 2017 WL 4326388, at *5 (D.D.C. Sept. 28, 2017). See also SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947) (holding that a reviewing court “must judge the propriety of [an

agency’s judgment] solely by the grounds invoked by the agency”); Jones v. Astrue, 647 F.3d 350,

356 (D.C. Cir. 2011) (citing Chenery, 332 U.S. at 196). In applying this standard, courts “must

also be mindful of the harmless-error rule. Consequently, even if [the court] perceive[s] error,” it

must “affirm the Commissioner's decision unless the error is prejudicial.” Saunders v. Kijakazi, 6

F.4th 1, 4 (D.C. Cir. 2021).

III. DISCUSSION

As noted, Plaintiff’s appeal rests on the ALJ’s assessment of her RFC and the ALJ’s eval-

uation of the medical opinion evidence. Plaintiff first asserts that the ALJ, in determining that she

could not perform work in a fast-paced production environment, “failed to provide adequate ex-

planation of the evidence upon which he relied on to make this determination, and failed to provide

any explanation of what he meant by the term ‘fast-paced production environment.’” ECF No.

20-1 at 8–9. Second, Plaintiff asserts that the ALJ “failed to include any limitation upon concen-

tration or persistence in either his residual functional capacity assessment or in his hypothetical

question to the vocational expert.” Id. at 11. Third, Plaintiff argues that the ALJ failed to “perform

a proper function-by-function assessment of the Plaintiff’s abilities to perform work-related

17 activities.” Id. at 16. And fourth, Plaintiff argues that the ALJ “failed to properly evaluate perti-

nent evidence,” including two medical opinions, and evidence relating to Plaintiff’s visual impair-

ments. Id. at 17–19. Two of Plaintiff’s arguments succeed—first, that the ALJ did not explain the

term “fast-paced production environment,” and second, that the RFC did not adequately account

for Plaintiff’s moderate limitations in concentration, persistence, or pace.

A. Plaintiff’s RFC Contains Impermissibly Vague Language

Plaintiff’s first argument concerns the phrase “fast-paced production environment” used in

her RFC determination. Although the ALJ determined that Plaintiff could perform “simple tasks,

decisions, and instructions, not performed in a fast-paced production environment,” Plaintiff con-

tends that this determination is problematic because the ALJ did not explain what he meant by

“fast-paced production environment.” ECF No. 20-1 at 9; see ECF No. 14-2 at 49. The under-

signed agrees and finds that the ALJ did not properly define the phrase “fast-paced production

environment.”

This Court, and others, have found similar language in an RFC to be impermissibly vague

and a basis for remand. See Mirlin T. v. Kijakazi, No. 20-cv-960, 2021 WL 9217635, at *9 (D.D.C.

Aug. 24, 2021), report and recommendation adopted, 2022 WL 3139032 (D.D.C. Aug. 5, 2022)

(finding that the phrase “fast pace or strict production quotas,” without further explanation, was

vague in its phrasing); see also Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019) (finding

that RFC language limiting claimant to work which did not “require[e] a production rate or demand

pace” did not give the judge enough information to understand the meaning of those terms, and

thus frustrated meaningful appellate review); Perry v. Berryhill, 765 Fed. App’x 869, 872–73 (4th

Cir. 2019) (finding that the phrase “non-production oriented work setting” was not a well-defined

term of art); Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015) (discussing how the phrase “fast

18 paced production,” without further definition of the phrase, “would have been impossible for the

[vocational expert] to assess”); Wendy S. v. Saul, No. 19-cv-3553, 2021 WL 168444, at *3 (D. Md.

Jan. 19, 2021) (finding that the limitation of “no fast pace or strict production requirements” was

unreviewable without further explanation from the ALJ); but see Johnson v. Kijakazi, No. 18-cv-

2749, 2022 WL 2452610, at *3 (D.D.C. July 6, 2022); Johnson v. Saul, No. 19-cv-3829, 2021 WL

411202, at *6 n.5 (D.D.C. Feb. 5, 2021). In Thomas v. Berryhill, for example, the Fourth Circuit

remanded where the ALJ limited the plaintiff’s RFC to work that did not “requir[e] a production

rate or demand pace” because the ALJ did not “give . . . enough information to understand what

those terms mean” which made it “difficult, if not impossible, for [the court] to assess whether

their inclusion in [the plaintiff’s] RFC is supported by substantial evidence.” 916 F.3d 307, 312;

see also Mirlin T., 2021 WL 9217635, at *9; Perry, 756 Fed. App’x at 872–73. This is especially

the case where the phrase used is not a “common vocationally relevant functional limitation,” as

the phrase used here appears not to be. Thomas, 916 F.3d at 312. As discussed in Perry v. Ber-

ryhill, some terms such as “unskilled work” are terms of art that are defined in SSA regulations.

See 765 Fed. App’x at 872. But when terms like “fast-paced production environment”—or as in

Perry, “non-production oriented work setting”—are presented to a court, there is no such analo-

gous regulatory definition to guide its review. Id.

An ALJ’s failure to use such commonly understood phrases in an RFC, or to otherwise

define the phrases used, not only prevents the reviewing court from conducting a meaningful re-

view of the RFC, but also “prevent[s] the vocational expert from providing accurate testimony

about the positions in the economy that [the plaintiff] could feasibly perform,” where, as here, the

ALJ uses an undefined phrase when questioning the vocational expert. Mirlin T., 2021 WL

9217635, at *9; see also Varga, 794 F.3d at 815; Wendy S., 2021 WL 168444, at *3; EFC No. 14-

19 2 at 91. As explained in Varga, the term “fast paced production,” without a definition, would

make it “impossible for the [vocational expert] to assess whether a person with [claimant’s] limi-

tations could maintain the pace proposed.” 794 F.3d at 815; see also Petty v. Colvin, 204 F. Supp.

3d 196, 205 (D.D.C. 2016) (an ALJ’s failure to convey accurately the claimant’s limitations to the

expert can serve as grounds for reversal because it “undermines the expert’s testimony that a claim-

ant can perform other work,” an instrumental aspect of determining whether the claimant qualifies

for disability benefits). Here, there is no telling what the vocational expert interpreted the phrase

“fast-paced production environment” to mean because the ALJ provided no additional clarity as

to what he meant the phrase to denote. “[I]f the relevant RFC terms are ‘not common enough for

[a court] to know what they mean without elaboration’ . . . [t]he Court cannot decisively say that

had the ALJ elaborated on the RFC terms, the [vocational expert] would have identified the same,

or any, positions the hypothetical person could perform.” Geneva W. v. Comm’r, Soc. Sec. Admin.,

No. 18-1812, 2019 WL 3254533, at *3 (D. Md. July 19, 2019) (internal citation omitted)).

For these reasons, Plaintiff’s motion is granted with respect to the use of that undefined

phrase, and the case will be remanded to the SSA for further administrative proceedings.

B. The RFC Did Not Adequately Account for Plaintiff’s Moderate Limitation in Concentration, Persistence, and Pace

Plaintiff’s argument concerning the ALJ’s assessment of her moderate limitation in the

domain of concentration, persistence, and pace (“CPP”) is twofold. First, she claims that the ALJ

“failed to include any limitation upon concentration or persistence in either his residual functional

capacity assessment or in his hypothetical question to the vocational expert.” ECF No. 20-1 at 11.

Next, Plaintiff argues that the RFC failed to adequately address her moderate CPP limitations. Id.

This Court disagrees with Plaintiff’s first argument but agrees with her second that the RFC fails

to adequately address her CPP limitations, thus warranting a remand on that basis as well.

20 1. The RFC Contains Limitations Relevant to Concentration, Persistence, and Pace

Plaintiff argues that the ALJ failed to include in the RFC assessment or hypothetical ques-

tions to the vocational expert any limitation upon her abilities to concentrate or persist, despite her

moderate CPP limitation found by the ALJ. EFC No. 20-1 at 11. This argument is inherently

contradictory because Plaintiff first argues that there are no such limitations included in the RFC,

but then goes on to argue that the limitations it includes are inadequate. Id. at 11–12. Regardless,

to the extent Plaintiff is arguing that there are no CPP limitations included in the RFC, she is

wrong. Limiting Plaintiff to “simple tasks, decisions, and instructions, not performed in a fast-

paced production environment” is a CPP-based restriction. See Mitchell v. Kijakazi, No. 19-cv-

2560, 2021 WL 5310541, at *5 (D.D.C. Nov. 15, 2021) (finding that an RFC restricting claimant

to “simple one to four step routine, repetitive tasks,” among other restrictions, was a limitation

relevant to CPP); ECF No. 14-2 at 50. Thus, Plaintiff’s argument that there are no CPP restrictions

in the RFC is incorrect.

2. The RFC Did Not Sufficiently Account for Plaintiff’s Moderate Limitation in Concentration, Persistence, and Pace

That said, the Court agrees with Plaintiff that the restrictions contained in the RFC related

to CPP were insufficient, without further explanation from the ALJ, to account for the moderate

limitation in that domain that he found Plaintiff possesses. ECF No. 20-1 at 16; ECF No. 14-2 at

48 (ALJ finding that Plaintiff has a moderate limitation “with regard to concentrating, persisting,

or maintaining pace”). The CPP domain “refers to the [claimant’s] abilities to focus attention on

work activities and stay on-task at a sustained rate.” 20 C.F.R. pt. 404, subpt. P, app. 1 §

12.00(E)(3). In SSA parlance, a “moderate” limitation means that the claimant’s “functioning in

this area independently, appropriately, effectively, and on a sustained basis is fair.” 20 C.F.R. Pt.

21 404, subpt. P, app. 1 § 12.00(F)(2)(c). Though the SSA regulations do not define “fair,” as this

Court has previously explained, “a moderate limitation in maintaining concentration, persistence,

or pace ‘necessarily establish[es] some deficit in [the claimant’s] ability to sustain focused atten-

tion and concentration long enough to permit the timely and appropriate completion of tasks com-

monly found in work settings.’” Nsiah v. Saul, No. 19-cv-42, 2020 WL 12948519, at *14–16

(D.D.C. May 12, 2020) (alterations in original) (quoting Terri D. v. Berryhill, No. 17-cv-22, 2018

WL 4688740, at *8 (W.D. Va. Sept. 28, 2018)); see also Demetria R. v. Kijakazi, No. 20-cv-3227,

2022 WL 3142376, at *14 (D.D.C. June 30, 2022), report and recommendation adopted, 2022

WL 3139026 (D.D.C. Aug. 5, 2022).

Many ALJs attempt, like the ALJ did here, to account for a “moderate” CPP limitation by

restricting the claimant’s RFC to simple, routine, unskilled, and/or repetitive work (or some deri-

vation of those limitations). These attempts to account for a moderate CPP limitation have re-

ceived mixed reviews by federal courts. Compare, e.g., Patrice V. v. Saul, No. 18-cv-2221, 2019

WL 3778771, at *5 (D. Md. Aug. 12, 2019) (finding that limiting the claimant to one to four step

routine, repetitive tasks did not, without further explanation, sufficiently address moderate CPP

limitations) and Eichelberger v. Colvin, No. 16-cv-3299, 2018 WL 2740018, at *2 (D. Md. Apr.

12, 2018) (similar), with, e.g., Taft W. v. Saul, No. 19-cv-2781, 2020 WL 7074628, at *4 (D. Md.

Dec. 3, 2020) (finding that limiting claimant to one to four step routine, repetitive tasks adequately

addressed moderate CPP limitations), and Stout v. Colvin, No. 14-cv-2596, 2015 WL 7351503, at

*12 (D. Md. Nov. 20, 2015) (similar). This is because an RFC that a claimant “can perform simple

and repetitive tasks says nothing about whether the individual can do so on a sustained basis.”

Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019) (internal citations omitted); see also Petty v.

Colvin, 204 F. Supp. 3d 196, 206 (D.D.C. 2016) (finding that, generally, limiting a claimant to

22 “simple, routine, and repetitive tasks” is insufficient to address a moderate CPP limitation because

“the ability to perform simple tasks differs from the ability to stay on task” (quoting Mascio v.

Colvin, 780 F.3d 632, 638 (4th Cir. 2015))). Stated differently, “someone with problems concen-

trating may not be able to complete a task consistently over the course of a workday, no matter

how simple it may be.” Martin v. Saul, 950 F.3d 369, 374 (7th Cir. 2020); see also Johnson, 2021

WL 411202, at *5 (“As numerous courts have noted, . . . the problem with finding a moderate CPP

limitation by requiring ‘simple, routine, and repetitive tasks’ is that such a restriction, without

more, does not actually address plaintiff's mental impairments because the difficulty of a task does

not necessarily say anything about his ability to concentrate on it.”).

Lacking guidance from the D.C. Circuit on this issue, this Court has maintained an ALJ

can properly account for CPP limitations by limiting the type of work and tasks the claimant can

perform—such as, for example, restricting the claimant’s RFC to simple, routine and/or repetitive

that require a limited number of steps—if the ALJ “explain[s] how such an RFC is consistent with

the claimant’s trouble with concentration, persistence, or pace.” Nsiah, 2020 WL 12948519, at

*15 n.4; see also Demetria R., 2022 WL 3142376, at *16 n.16. The ALJ must, as always, build

an “accurate and logical bridge from the evidence to [his] conclusion” and explain why the claim-

ant’s ability to perform simple tasks is consistent with an ability to stay on task (i.e., concentrate

and/or persist on a task). Lane-Rauth, 437 F. Supp. 2d at 67 (alteration in original) (quoting Scott

v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)). In other words, it is decidedly not the case that

“an RFC limiting a claimant to,” for example, simple, routine, unskilled, and/or repetitive work

and tasks with a limited number of steps “can never be consistent with a moderate limitation in

maintaining concentration, persistence, or pace.” Nsiah, 2020 WL 12948519, at *15 n.4. Yet

because a “moderate” limitation in CPP implies some deficiency in that area of functioning, “an

23 ALJ’s RFC assessment ‘must . . . either adequately account for this deficit or adequately explain

why, notwithstanding [that] finding, [the claimant’s] overall limitations do not [actually] affect her

capacity to sustain simple, routine, or unskilled work.’” Demetria R., 2022 WL 3142376, at *14

(second and third alterations in original) (quoting Nsiah, 2020 WL 12948519, at *14). Here, the

ALJ did neither. Without providing any explanation, the ALJ restricted Plaintiff’s RFC to “jobs

that have only simple tasks, decisions, and instructions, not performed in a fast-paced production

environment, with simple being defined as the term is used in the DOT describing SVP levels 1 or

2.” ECF No. 14-2 at 50. This description is substantially the same as other RFC restrictions that

this Court has found inadequate—without further explanation by the ALJ—to address a moderate

CPP limitation. See Nsiah, 2021 WL 372784, at *15 (concluding that an RFC restricting claimant

to “simple, routine, unskilled tasks; occasional changes in a routine work setting; and occasional

interaction with the public, co-workers, and supervisors” did not adequately account for plaintiff’s

moderate CPP limitation); Mirlin T., 2021 WL 9217635, at *10 (finding that the “ALJ’s limitations

of ‘simple work, without fast pace or strict production quotas” did not adequately address plain-

tiff’s moderate CPP limitation); Demetria R. v. Kijakazi, No. 20-cv-3227, 2022 WL 3142376, at

*14 (D.D.C. June 30, 2022) (finding that limiting claimant “to perform simple, unskilled (SVP 1

or 2) sedentary work” did not adequately account for plaintiff’s moderate CPP limitation). 11 The

11 The only difference between the CPP-related restrictions at issue here and those this Court has rejected previously, is the ALJ’s attempt to define the word “simple” with reference to how that “term is used in the DOT describing SVP levels 1 or 2.” ECF. No. 14-2 at 50. This attempt at clarification does not advance the ball, however. First, the term “simple” is not defined—or even used—in the DOT (Dictionary of Occupational Titles) when “describing SVP levels 1 or 2.” See Department of Labor, Dictionary of Occupational Titles: Appendix C: Components of the Definition Trailer, (4th ed., 1991) available at https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC (defining SVP level 1 as “[s]hort demonstration only” and SVP level 2 as “[a]nything beyond short demonstration up to and including 1 month”). Moreover, Specific Vocational Preparation—or “SVP”—is “the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.” Id. It does not address concentration, persistence, or pace, but rather points to the training and orientation necessary for a given job. In any event, because the Court cannot glean what the ALJ meant, it is not possible to evaluate whether his attempt to define “simple” adequately addresses Plain- tiff’s moderate CPP limitations.

24 ALJ also restricted Plaintiff’s RFC to “occupations not involving high levels of stress, such as

those requiring independent decision making, or occupations subject to close supervision or close

interaction with coworkers, or the general public, with close meaning no more than occasional.”

ECF No. 14-2 at 50. But, again, these additional limitations are not materially different from RFC

restrictions that this Court has rejected in the past as being insufficient to address a moderate CPP

limitation, without further explanation from the ALJ. See Nsiah, 2021 WL 372784, at *15 (con-

cluding that an RFC restricting claimant to “simple, routine, unskilled tasks; occasional changes

in a routine work setting; and occasional interaction with the public, co-workers, and supervisors”

did not adequately account for claimant’s moderate CPP limitations); Mirlin T., 2021 WL

9217635, at *10 (finding that the “ALJ’s limitations of ‘simple work, without fast pace or strict

production quotas’ did not adequately address Plaintiff’s moderate limitations in concentration,

persistence, or pace”). The ALJ did not “adequately explain why, notwithstanding the finding

[that Plaintiff had a moderate CPP limitation, her] overall limitations do not [actually] affect her

capacity to sustain simple, routine, or unskilled work.’” Demetria R., 2022 WL 3142376, at *14

(second and third alterations in original) (quoting Nsiah, 2020 WL 12948519, at *14); see also

Laura A., 2022 WL 3644810, at *11 (quoting Nsiah, 2021 WL 372784, at *15 n.4) (“This Court

has maintained that ALJs can properly account for CPP limitations by limiting the type of work

and tasks the claimant can perform—such as, for example, simple and routine tasks or work that

requires a limited number of steps—if they ‘explain how such an RFC is consistent with the claim-

ant's trouble with [CPP].’”). Again, an ALJ can adequately account for a moderate CPP limitation,

for example, “by limiting the type of work and tasks the claimant can perform—such as, for ex-

ample, simple and routine tasks or work that requires a limited number of steps.” Id. at *11. But

the ALJ must also actually “explain how such an RFC is consistent with the claimant’s trouble

25 with concentration, persistence, or pace.” Nsiah, 2020 WL 12948519, at *15 n.4. Here, the ALJ’s

opinion provides no explanation as to how, despite Plaintiff’s moderate CPP limitations, she is

capable of “sustaining focused attention and concentration for a significant amount of time,” much

less the persistence and pace needed to complete a normal workday or workweek notwithstanding

her restriction to simple, low stress work. Mirlin T., 2021 WL 9217635, at *10. To satisfy this

requirement, the ALJ might have pointed to facets of Plaintiff’s life where she exhibits sustained

focused attention, or testimony that she is capable of doing so. Cf. Laura A., 2022 WL 3644810,

at *9, 12 (denying motion for remand where ALJ expressly concluded that the record did not reflect

a significant defect in plaintiff’s concentration, relying on an examiner’s report showing plaintiff

had only “‘mildly impaired attention and concentration,’ and ‘no limitation with her ability to

understand, remember or apply simple directions and instructions,’” and plaintiff’s own conces-

sion “in her function report that her ability to follow[] both written and verbal instructions was

‘good’”). That deficiency is especially problematic here because the psychological consultative

examiner, Dr. Smedley—whose opinion the ALJ found “somewhat persuasive”— noted that “[t]he

results of [Plaintiff’s] examination appear to be consistent with psychiatric problems, and this may

significantly interfere with the claimant’s ability to function on a daily basis.” ECF No. 14-9 at

61. Nowhere in the ALJ’s opinion is that statement addressed. For that reason, and because the

Commissioner advances no argument that the ALJ’s error was harmless, the Court has no basis to

conclude that the ALJ’s failure to account for Plaintiff’s moderate CPP limitations was, in fact,

harmless. 12 Accordingly, the Court will grant the Plaintiff’s motion for remand on this basis as

well.

12 Errors of this kind in the RFC have previously been considered harmless if “(1) medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace and that the hypothetical question given to the [vocational] expert is limited to only include only unskilled work[] or (2) the hypothetical otherwise implicitly account[s] for a claimant’s limitation in concentration, persistence, and

26 C. The ALJ is Not Required to Perform a Function-by-Function Analysis

Plaintiff next argues that the ALJ’s conclusion that she could perform light work was im-

proper because he did not first perform a proper function-by-function analysis before reaching that

conclusion. ECF No. 20-1 at 16–17. Plaintiff relies on Social Security Ruling 96-8p, which states

that “[t]he RFC 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” before the RFC “may

[] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very

heavy.” Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity

in Initial Claims, SSR 96-8p [hereinafter SSR 96-8p], 1996 WL 374184, at *1 (S.S.A. July 2,

1996). Plaintiff’s argument hinges on the premise that the ALJ “failed to evaluate [her] abilities

to sit, stand, walk, or lift, yet nevertheless determined that [she] was capable of performing ‘light’

work,” despite her severe back impairment. ECF No. 20-1 at 17. On this issue, Plaintiff is incor-

rect.

As this Court has held, “[a]lthough the language of SSR 96–8p requires that the ALJ's RFC

assessment ‘must address . . . the remaining exertional . . . capacities of the individual,’ this does

not require written articulation of all seven strength demands”; instead, “[t]he narrative discussion

requirement simply requires the ALJ to explain an ‘individual's ability to perform sustained work

activities in an ordinary work setting on a regular basis,’ and ‘describe the maximum amount of

each work-related activity the individual can perform based on the evidence available in the case

record.’” Banks v. Astrue, 537 F. Supp. 2d 75, 85 (D.D.C. 2008); Simmons v. Saul, No. 18-cv-

1293, 2019 WL 12251882, at *13 (D.D.C. Sept. 30, 2019) (“To the extent that Plaintiff argues that

pace[.]” Mirlin T., 2021 WL 9217635, at *11 (quoting Petty, 204 F. Supp. 3d. at 206) (internal quotation marks omitted). The Commissioner makes no effort to apply that standard here, and the Court will not make that argument for her.

27 the absence of explicit and separate evaluations of each of the relevant strength categories in itself

requires remand (or reversal), he is mistaken.”), report and recommendation adopted, 2019 WL

12251883 (D.D.C. Oct. 22, 2019). Indeed, although the D.C. Circuit has not addressed that spe-

cific question, see Banks, 537 F. Supp. 2d at 84, a number of other Courts of Appeals have indi-

cated that “an ALJ need not expressly discuss a claimant's capacity to perform each work-related

function before classifying the claimant's RFC in exertional terms,” Cichocki v. Astrue, 729 F.3d

172, 177 (2d Cir. 2013) (per curiam) (collecting cases from the Sixth, Seventh, and Ninth Circuits).

Rather, all the ALJ must do is “provide[] a thorough narrative discussion of the evidence of record

regarding the Plaintiff’s abilities to perform relevant work-related functions in areas in which

Plaintiff alleged limitation.” Jamil D. v. Kijakazi, No. 21-cv-464, 2022 WL 910334, at *9 (D.D.C.

Mar. 29, 2022); see also Contreras v. Comm'r of Soc. Sec., 239 F. Supp. 3d 203, 207 (D.D.C.

2017) (“This court has found that when ‘the ALJ provided a thorough narrative discussion of

[plaintiff's] limitations,’ and has built a ‘logical bridge’ from the evidence to his conclusion, the

RFC analysis does not require ‘written articulation of all seven strength demands.’”) (quot-

ing Banks, 537 F. Supp. 2d at 85). Such a “narrative discussion ‘is sufficient for the ALJ to fulfill

[his] obligation to complete a function-by-function analysis that allows the [court] to conduct

meaningful review.’” Nsiah, 2021 WL 372784, at *14 (quoting Davis v. Berryhill, 272 F. Supp.

3d 154, 172 (D.D.C. 2017)). The ALJ’s opinion here properly provides such a narrative discussion

that expressed his reasoning underlying his assessment that Plaintiff could perform light work. See

ECF No. 14-2 at 52.

As part of that discussion, the ALJ first considered Plaintiff’s testimony, including that she

stated that she could frequently lift five to ten pounds, infrequently lift twenty pounds, and could

walk or stand for an hour to an hour and a half before needing a half hour break to sit. ECF No.

28 14-2 at 51–52; see also id. at 80-82. Those limitations, which Plaintiff admitted in her own testi-

mony, are consistent with the requirements of light work. The SSA defines that phrase as requiring

“lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up

to 10 pounds . . . a good deal of walking or standing, or . . . sitting most of the time with some

pushing and pulling of arm or leg controls.” 20 C.F.R. § 416.967(b). The SSA has further ex-

plained that light work requires standing or walking, off and on, for a total of approximately 6

hours of an 8-hour workday, and that sitting may occur intermittently during the remaining time.

Titles II & XVI: Determining Capability to Do Other Work—the Med.-Vocational Rules of App.

2, SSR 83-10, 1983 WL 31251, at *6 (S.S.A. Jan. 1, 1983). There does not appear to be a material

difference between the SSA’s definition of light work and what the Plaintiff testified she was

physically able to do. In particular, with regard to her ability to lift, Plaintiff’s own stated abilities

to lift fall directly within the requirements for light work. Compare ECF No. 14-2 at 51–52 (Plain-

tiff testified that she could frequently lift five to ten pounds and infrequently lift twenty pounds)

with 20 C.F.R. § 416.967(b) (defining light work as lifting no more than 20 pounds at a time, with

frequent lifting or carrying of objects weighing up to 10 pounds). Regarding her ability to sit,

stand, and walk, Plaintiff estimated that she could walk or stand for an hour to an hour and a half

before needing a half hour break to sit. ECF No. 14-2 at 52. Light work includes standing or

walking, off and on, for a total of approximately 6 hours of an 8-hour workday, with sitting occur-

ring intermittently during the remaining time. SSR 83-10, 1983 WL 31251, at *6. Even assuming

that requirement is inconsistent with what Plaintiff testified she could do, she points to no medical

evidence demonstrating that her back impairment precluded her from performing light work. See

generally ECF No. 20-1; see Davis v. Berryhill, 272 F. Supp. 3d 154, 172 (D.D.C. 2017) (rejecting

a plaintiff’s “attempt[] to raise the specter of impropriety on the part of the ALJ without pointing

29 to any actual medical evidence demonstrating that the RFC assessment failed to sufficiently cap-

ture Plaintiff's functional limitations”); see also Clark v. Astrue, 826 F. Supp. 2d 13, 22–23 (D.D.C.

2011) (finding function-by-function assessment sufficient where there is no medical evidence con-

tradicting the challenged portion of the claimant's RFC).

The ALJ, on the other hand, reviewed the record evidence concerning Plaintiff’s back im-

pairment and concluded that it did not support a greater restriction than light work. The ALJ first

noted that a November 2018 MRI showed only minimal findings. EFC No. 14-2 at 52. A 2020

lumbar MRI showed only minimal stenosis and a pelvis MRI showed no evidence of sacroiliitis,

and only mild degenerative changes at the bilateral sacroiliac joints, and slight anterior angulation

of the distal coccygeal segments. Id.; ECF No. 14-9 at 147–149. The ALJ then pointed to medical

evidence demonstrating that Plaintiff’s lower back pain was improving and responding to treat-

ment. ECF No. 14-2 at 52; see also ECF No. 14-9 at 16–27. The ALJ found that medical records

from March 2020 showed that Plaintiff’s low back pain improved without injections, so an ap-

pointment for injections was rescheduled. ECF No. 14-2 at 52 (citing ECF No. 14-9 at 134–35).

In April 2020, a report noted that Plaintiff was “doing quite well,” “tries to stay active,” walks,

and “uses a cushion for prolonged sitting.” Id. (citing ECF No. 14-9 at 131–32). In July 2020,

Plaintiff was able to manage her “worst pain” with ice and heat, and her pain management regime

was “controlling” her lower back pain. Id. (citing ECF No. 14-9 at 128–29). In December 2020,

Plaintiff reported no serious mediation side effects and an increase in pain in the winter due to

fibromyalgia, but she had “unremarkable” examination findings and was noted to be “stable on

medication.” Id. (citing ECF No. 14-9 at 118–21). Finally, the ALJ noted that in January 2021,

Plaintiff continued to be stable and that medicine was no longer detected in her urine drug screen,

and her prescription had not been renewed for months. Id.

30 Evidence like the foregoing that conflicts with Plaintiff’s assertion that she is physically

disabled and that demonstrates the improvement of her back pain in response to treatment was

properly used by the ALJ “to discount [her] assertions of disabling limitations,” and supports the

ALJ’s RFC finding of light work. Jamil D., 2022 WL 910334, at *10 (collecting cases); see Kim

M. v. Kijakazi, No. 20-cv-2072, 2021 WL 4033060, at *8 (D.D.C. Sept. 3, 2021) (finding that

ALJ’s analysis of evidence contradicting subjective statements and demonstrating improvement

supported RFC finding of light work); Darlene M. v. Kijakazi, No. 20-cv-1817, 2021 WL 6841641,

at *25 (D.D.C. Sept. 3, 2021) (similar). Indeed, the state agency examiner found that Plaintiff had

no physical health issues—a conclusion which the ALJ rejected because “the state agency compo-

nent failed to consider limitations caused by claimant’s severe back and vision impairments, as

well as her obesity.” ECF No. 14-2 at 54.

Based on the foregoing, the Court finds that the ALJ provided a sufficient narrative discus-

sion regarding Plaintiff’s ability to perform relevant work-related functions with respect to her

back impairment to permit the Court to conduct a meaningful review, and that the ALJ’s determi-

nation that Plaintiff is capable of performing light work was supported by substantial evidence. In

this regard, the ALJ did all that was required.

D. The ALJ Properly Evaluated the Medical Evidence Regarding Plaintiff’s Vi- sion Impairment

Finally, Plaintiff argues that the ALJ failed to properly evaluate her eye impairment result-

ing in fluctuating vision. ECF No. 20-1 at 18–19. This argument fails as well.

The ALJ accounted for Plaintiff’s visual impairment in her RFC by precluding work in-

volving “hazards such as unprotected heights, moving machinery, and commercial driving.” ECF

No. 14-2 at 50. That finding must be upheld if it is “‘supported by substantial evidence’ and ‘not

tainted by an error of law.’” Ali, 236 F. Supp. 3d at 90 (quoting Porter v. Colvin, 951 F. Supp. 2d

31 125, 129 (D.D.C. 2013)). The question is not, then, whether substantial evidence supports Plain-

tiff’s position, but rather, whether there is “such relevant evidence as a reasonable mind might

accept as adequate to support [the Commissioner’s] conclusion[s].” Id. at 90 (quoting Brown v.

Bowen, 794 F.2d 703, 705 (D.C. Cir. 1986)). That is, “[i]f [the Commissioner’s findings are]

supported by substantial evidence, [they] 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. Sulli-

van, 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 con-

trary 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. Richard-

son, 459 F.2d 1015, 1017 (4th Cir. 1972))). In this case, the ALJ’s findings related to Plaintiff’s

visual impairments were supported by substantial evidence.

In his analysis of the medical and other evidence, the ALJ acknowledged Plaintiff’s diag-

noses related to her vision—bilateral keratoconus. 13 ECF No. 14-2 at 53. He also considered her

testimony that her vision problems can come and go, and that sometimes she has a total lack of

vision but other times her vision is good. Id. at 52-53. The ALJ specifically examined Plaintiff’s

13 Keratoconus “is an eye condition in which your cornea—the clear, dome-shaped front of your eye—gets thinner and gradually bulges outward into a cone shape. A cone-shaped cornea causes blurred vision and may cause sensitivity to light and glare.” Mayo Clinic, Keratoconus, https://www.mayoclinic.org/diseases-conditions/keratoconus/symp- toms-causes/syc-20351352 [https://perma.cc/HJV6-DJJ6] (captured Oct. 16, 2023).

32 eye records from May 2019 and June 2019. Id. at 53. At a May 2019 appointment, Plaintiff

“reported no change in vision or pain” and her visual acuity was measured at 20/80 on the right

and 20/40 on the left. Id. (citing ECF No. 14-8 at 43). At a June 2019 evaluation, her visual

acuity measured at 20/80 on the right and 20/30 on the left. Id. (citing ECF No. 14-8 at 120–22).

The ALJ further considered that in June 2019 Plaintiff declined a contact lens trial—which pre-

sumably may have relieved her keratoconus symptoms 14—and was encouraged by her ophthal-

mologist to follow up for surgical approval, but there is no record of her doing so after that date.

Id. Rather, approximately 17 months later, she returned to an eye care professional complaining

of blurred vision. Id. At that time, Plaintiff was found to have corneal scarring and thinning, and

she was again diagnosed with bilateral keratoconus and referred to an ophthalmologist. Id. (citing

ECF No. 14-9 at 105–06). The record shows no additional vision-related follow up appointments

after that date. Id. The ALJ also noted Plaintiff’s testimony that, despite her vision problems, she

had a driver’s license, owned a car, drove when her vision is clear, and used public transportation.

ECF No. 14-2 at 52–53.

Based on the evidence as a whole, the ALJ accounted for Plaintiff’s vision problems by

limiting Plaintiff to jobs that did not involve exposure to hazards such as unprotected heights,

moving machinery, and commercial driving. Id. at 50. The Court finds that conclusion supported

by substantial evidence—i.e., more than a mere scintilla. Plaintiff argues that the ALJ did not

address the Plaintiff’s “variable and fluctuating vision.” However, the ALJ did acknowledge

Plaintiff’s testimony that her “vision problems come and go” and sometimes reports a “total lack

14 “In the early stages of keratoconus, you might be able to correct vision problems with glasses or soft contact lenses. Later, you may have to be fitted with rigid, gas permeable contact lenses or other types of lenses, such as scleral lenses. If your condition gets worse, you may need a cornea transplant.” Mayo Clinic, Keratoconus, https://www.mayo- clinic.org/diseases-conditions/keratoconus/symptoms-causes/syc-20351352 [https://perma.cc/HJV6-DJJ6] (captured Oct. 16, 2023).

33 of vision at times,” but chose to focus instead on the results of her repeated, recent examinations

in 2019 which showed only a moderate or average vision impairment in her right eye of 20/80, as

well as her failure to pursue treatments for her eye condition. Id. at 53; see also, e.g., Am. Opto-

metric Ass’n, Low Vision & Vision Rehab., https://www.aoa.org/healthy-eyes/caring-for-your-

eyes/low-vision-and-vision-rehab [https://perma.cc/BXS5-HXV2] (captured Oct. 16, 2023) (not-

ing that the World Health Organization considers visual acuity of 20/30 to 20/60 as mild vision

loss or near-normal vision and of 20/70 to 20/160 as moderate visual impairment). It is well es-

tablished that an ALJ “may consider ‘whether there are any inconsistencies in the evidence and

the extent to which there are any conflicts between [the claimant’s] statements and the rest of the

evidence,’” McCormick v. Saul, No. 18-cv-1704, 2021 WL 2634732, at *9 (D.D.C. June 25, 2021)

(alteration in original) (quoting Butler, 353 F.3d at 1004–05), including whether the claimant failed

to seek recommended treatment, see Goodman v. Saul, 233 F. Supp. 3d 88, 108 (D.D.C. 2017);

see also, e.g., Titles II and XVI: Evaluations of Symptoms in Disability Claims, SSR 16-3p, 2017

WL 5180304, at *9 (S.S.A. Oct. 25, 2017) (“We will consider an individual’s attempts to seek

medical treatment for symptoms and to follow treatment once it is prescribed when evaluating

whether symptom intensity and persistence affect the ability to perform work-related activi-

ties[.]”). Assessment of a claimant’s report of her symptoms “‘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, No. 18-204, 2020 WL 3542232, at *4 (D.D.C. June 30, 2020) (quoting

Grant v. Astrue, 857 F. Supp. 2d 146, 156 (D.D.C. 2012)). The Court will not, therefore, second

guess the ALJ’s decision to rely on those parts of the record, rather than Plaintiff’s testimony at

the hearing.

34 Next, Plaintiff contends that, because of her vision impairment, her RFC should have in-

cluded a limitation on her “ability to read, work with small objects, or use a computer.” ECF No.

20-1 at 18–19. Plaintiff does not cite any medical record or other evidence of such a limitation.

See id. Even if evidence supported the imposition of a limitation on activities requiring near visual

acuity, any error arising from the failure to include it in her RFC would be harmless because one

of the jobs the vocational expert testified that Plaintiff could perform—a collator operator—does

not have requirements related to near or far visual acuity or depth perception. ECF No. 21 at 26;

see Collator Operator, DOT 208.685-010, 1991 WL 671753; see also Davis v. Berryhill, 272 F.

Supp. 3d 154, 180 (D.D.C. 2017) (finding that to the extent the ALJ’s failure to include additional

limitations was error, it was harmless where jobs identified by the vocational expert accommo-

dated such limitations). Thus, Plaintiff would still be found not disabled as she could perform a

job that exists in significant numbers in the national economy. See 20 C.F.R. § 404.1566(b)

(providing that a claimant is not disabled if she can perform other work that exists in significant

numbers “in one or more occupations” in the national economy).

IV. CONCLUSION

For the reasons stated above, the Court will enter an Order DENYING Defendant’s motion

for judgment of affirmance (ECF No. 21), GRANTING IN PART Plaintiff’s motion for judgment

of reversal (ECF No. 20) to the extent that it seeks reversal, and REMANDING this case to the

Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent

with this opinion.

Digitally signed by G. Michael Harvey Date: 2023.10.25 Date: October 25, 2023 ____________________________________ 14:37:41 -04'00' G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE