Washington v. Saul

• Court: District Court, District of Columbia
• Decided: June 18, 2021
• Docket: Civil Action No. 2020-0662
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) JERMAINE WASHINGTON, ) ) Plaintiff, ) ) v. ) Case No. 20-cv-662 (APM) ) ANDREW SAUL, Commissioner of Social ) Security, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Jermaine Washington brings this action pursuant to 42 U.S.C. § 405(g) against

Defendant Andrew Saul, Commissioner of the Social Security Administration (“SSA”),

challenging the denial of his applications for supplemental security income and disability

insurance benefits. Plaintiff contends that an Administrative Law Judge (“ALJ”) erred in

reviewing the SSA’s denial of Plaintiff’s applications by (1) erroneously assessing Plaintiff’s

medically determinable impairments, and (2) applying an improper standard in evaluating

Plaintiff’s subjective complaints of pain.

This matter is before the court on Plaintiff’s Motion for Judgment of Reversal and

Defendant’s Motion for Judgment of Affirmance. For the reasons stated below, the court grant’s

Defendant’s motion and denies Plaintiff’s motion. II. BACKGROUND

A. Statutory and Regulatory Framework

To qualify for disability benefits under Titles II and XVI of the Social Security Act, “a

claimant must establish that he is disabled.” Jones v. Astrue, 647 F.3d 350, 352 (D.C. Cir. 2011);

42 U.S.C. § 423. The Act defines “disability” as the “[inability] to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment[,] . . .

which has lasted or can be expected to last for a continuous period of not less than 12 months.”

42 U.S.C. § 1382c(a)(3)(A); cf. id. § 423(d)(1). With certain exceptions not present here, an

individual is disabled “only if his physical or mental . . . impairments are of such severity that he

is not only unable to do his previous work but cannot, considering his age, education, and work

experience, engage in any other kind of substantial gainful work which exists in the national

economy.” Id. § 1382c(a)(3)(B).

The SSA has established a five-step sequential process for assessing a claimant’s eligibility

for disability benefits, and an ALJ engages in that same process anew upon review of a

determination by the Commissioner. See 20 C.F.R. § 404.1520(a)(4); see Jones, 647 F.3d at 352.

The claimant carries the burden of proof on the first four steps. 20 C.F.R. §§ 404.1520, 416.920.

At step one, the claimant must demonstrate that he is not presently engaged in “substantial gainful

work.” Id. §§ 404.1520(b), 416.920(b). Second, the claimant must show that he has a “severe

impairment” that “significantly limits [his] physical or mental ability to do basic work activities.”

Id. §§ 404.1520(c), 416.920(c). At step three, “the claimant must show that he suffers from an

impairment that meets or equals an impairment listed in the appendix to the SSA regulations. If

2 so, he is found to be disabled . . . and the inquiry concludes.” Jones, 647 F.3d at 353 (citing

20 C.F.R. § 416.920(d)). If not, the analysis proceeds.

Before reaching step four, the ALJ must first determine the claimant’s Residual Functional

Capacity (“RFC”), or his ability to do physical and mental work activities on a sustained basis

despite limitations from his impairments. See 20 C.F.R. §§ 404.1520(e), 416.920(e); Social

Security Rule (“SSR”) 96-8p, Assessing Residual Functional Capacity in Initial Claims, 1996 WL

374184, at *1 (SSA July 2, 1996). As part of that inquiry, the ALJ must consider all of the

claimant’s impairments, including impairments that are not severe. See 20 C.F.R. §§ 404.1520(e),

404.1545, 416.920(e), 416.945; SSR 96-8p, 1996 WL 374184, at *1. The ALJ then “proceeds to

the fourth step, which requires [the claimant] to show that [he] suffers an impairment that renders

[him] incapable of performing ‘past relevant work.’” Butler v. Barnhart, 353 F.3d 992, 997 (D.C.

Cir. 2004) (citing 20 C.F.R. §§ 404.1520(e), 416.920(e)). Finally, at step five, the burden shifts to

the ALJ “to demonstrate that the claimant is able to perform ‘other work’ based on a consideration

of [his RFC,] . . . age, education and past work experience.” Id. (citing 20 C.F.R. §§ 404.1520(f),

416.920(f)).

B. Factual Background and Procedural History

Plaintiff Jermaine Washington filed applications for supplemental security income and

disability insurance benefits on October 27, 2016. See A.R. at 15. 1 In his applications, Plaintiff

alleged disability beginning on October 1, 2011, see id., based on sciatica, hypertension, high

cholesterol, flat foot, irritable bowel syndrome, allergies, chronic bronchitis, asthma, enlarged

1 Citations to the Administrative Record (“A.R.”) are to the 21-part transcript of the record located at ECF Nos. 12–12-20. 3 heart, and insomnia, see id. at 234–39, 274. 2 Plaintiff’s applications were denied initially on April

6, 2017, see id. at 15, 145–51, and upon reconsideration on September 14, 2017, see id. at

15, 158–69. Plaintiff thereafter requested an administrative hearing to review the SSA’s decision.

See id. at 15. That hearing was held on April 12, 2019, where both Plaintiff and a vocational expert

testified. See id. at 15, 35–73.

On May 1, 2019, the ALJ issued a decision affirming the Commissioner’s denial of

Plaintiff’s disability applications. See id. at 15–30. In performing the five-step evaluation process,

the ALJ quickly dispensed with the first step, observing that Plaintiff “ha[d] not engaged in

substantial gainful activity since the alleged onset date.” 3 Id. at 18. At step two, the ALJ found

that Plaintiff had seven severe “medically determinable impairments” that “significantly limit[ed]

[Plaintiff’s] ability to perform basic work activities as required by SSR 85-28.” Id. Moving on to

step three, the ALJ determined that none of Plaintiff’s severe impairments, individually or in

combination, “me[t] or medically equal[ed] the severity of one of the listed impairments” in

Appendix 1 to the Commissioner’s regulations. Id. at 19–20. The ALJ thus advanced to a

determination of Plaintiff’s RFC. See id. at 20; Butler, 353 F.3d at 997.

“After careful consideration of the entire record,” the ALJ concluded that Plaintiff had the

RFC “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),” with certain

limitations. A.R. at 20. Specifically, the ALJ assessed,

[Plaintiff] could only stand and/or walk for 4 hours in an 8-hour workday. He would require a sit/stand option at 30-minute intervals. He could occasionally operate foot controls with the right foot. He

2 This was Plaintiff’s second time applying for benefits. In April 2012, Plaintiff initially applied for disability insurance benefits as well as supplemental security income, for a period beginning on September 30, 2011. See id. at 77. Those claims were denied initially on June 26, 2012, and upon review by an ALJ on May 14, 2014. See id. at 77, 84. 3 At the outset of his written opinion, the ALJ noted that because Plaintiff previously applied for benefits and was found not disabled through May 14, 2014, res judicata limited the ALJ’s consideration of Plaintiff’s instant applications to the period beginning May 15, 2014. See id. at 15. 4 could occasionally climb ramps and stairs, stoop, kneel, balance, crawl, and crouch, and never climb ladders, ropes, or scaffolds. He would need to avoid concentrated exposure to extreme cold, extreme heat, wetness, excessive vibration, and hazards like moving machinery and unprotected heights. Further, he would need to avoid even moderate exposure to humidity and pulmonary irritants like fumes, odors, dusts, gases, and poor ventilation. Finally, he would need to work at a worksite with access to the bathroom at regular work breaks and the lunch period.

Id. “In making this finding,” the ALJ explained that he had “considered all symptoms and the

extent to which th[o]se symptoms c[ould] reasonably be accepted as consistent with the objective

medical evidence and other evidence.” Id.

In light of the assessed RFC and the testimony of a vocational expert, at step four of the

sequential evaluation process the ALJ found Plaintiff was “unable to perform any past relevant

work.” Id. at 27–28. Finally, at step five, the ALJ factored the RFC and the testimony of the

vocational expert with Plaintiff’s “age, education, work experience” to conclude that Plaintiff was

“capable of making a successful adjustment to other work that exists in significant numbers in the

national economy.” Id. at 29. Accordingly, the ALJ determined that a finding of “not disabled”

was appropriate. Id.

Dissatisfied with the ALJ’s decision, Plaintiff submitted a letter to the Appeals Council of

the office of Disability Adjudication and Review (the “Appeals Council”). See id. at 232. In

January 2020, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s

decision final. See id. at 1–6. Thereafter, Plaintiff filed this action, challenging the

Commissioner’s denial of benefits. See Compl., ECF No. 1. This matter is now before the court

on Plaintiff’s Motion for Judgment of Reversal, see Pl.’s Mot. for J. of Reversal, ECF No. 16

[hereinafter Pl.’s Mot.], and Defendant’s Motion for Judgment of Affirmance, see Def.’s Mot. for

J. of Affirmance & in Opp’n to Pl.’s Mot. for J. of Reversal, ECF No. 17 [hereinafter Def.’s Mot.].

5 III. LEGAL STANDARD

An unsuccessful applicant for benefits may seek review of the Commissioner’s decision

by a federal district court. 42 U.S.C. § 405(g). “On judicial review, an ALJ’s factual findings . . .

‘shall be conclusive’ if supported by ‘substantial evidence.’” Biestek v. Berryhill, ___ U.S. ___,

139 S. Ct. 1148, 1153 (2019) (quoting 42 U.S.C. § 405(g)). The ALJ’s decision need not be

“irrefutable”; it just has “to reflect a reasonable reading of the record.” Johnson v. Copyright

Royalty Bd., 969 F.3d 363, 388 (D.C. Cir. 2020) (citing Biestek, 139 S. Ct. at 1154). The reviewing

court must defer to the ALJ’s decisions concerning the weight given to the evidence and may not

substitute its judgment for that of the ALJ. See Butler, 353 F.3d at 999. “[T]he [ALJ’s] ultimate

determination will not be disturbed if it is based on substantial evidence in the record and correctly

applies the relevant legal standards.’” Jones, 647 F.3d at 355 (quoting Butler, 353 F.3d at 999).

The court should, however, be able to discern how the ALJ reached his decision. Simms v.

Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989). Ultimately, the inquiry involves determining

whether “the ALJ . . . has analyzed all evidence and has sufficiently explained the weight he has

given to obviously probative exhibits.” Id. (internal quotation marks omitted). If the court

concludes that the ALJ has not done so, it must remand the case to the SSA for further proceedings.

Id. at 1050–53.

IV. DISCUSSION

Plaintiff makes two arguments as to why the court should reverse the ALJ’s decision

denying Plaintiff’s disability applications: (1) that the ALJ erred in finding that Chronic Regional

Pain Syndrome (“CRPS”) was not a medically determinable impairment at step two of the

sequential evaluation process, see Pl.’s Mot., Mem. in Supp. of Pl.’s Mot. for J. of Reversal, ECF

No. 16-1 [hereinafter Pl.’s Br.], at 3–10, and (2) that the ALJ erroneously evaluated Plaintiff’s

6 subjective complaints of pain in determining his RFC, see id. at 10–14. The court takes these

arguments in turn.

A. Evaluation of Plaintiff’s CRPS

Plaintiff first argues that the ALJ failed to properly evaluate Plaintiff’s CRPS as a

medically determinable impairment in accordance with regulation. See id. at 6–10 (citing SSR 03-

02P, Evaluating Cases Involving Reflex Sympathetic Dystrophy Syndrome/Complex Regional Pain

Syndrome, 2003 WL 22399117 (SSA, Oct. 20, 2003)). Specifically, Plaintiff contends the ALJ

“failed to explain or identify the evidence of [] Plaintiff’s [CRPS] which he considered

‘insufficient’ to support a diagnosis.” Id. at 6–7. In so doing, Plaintiff argues, the ALJ also “failed

to properly evaluate the evidence of record”—namely, a host of medical records that Plaintiff

contends demonstrates that CRPS is a medically determinable impairment. See id. at 7–8. As

explained in more detail below, Plaintiff’s argument has some merit. The court agrees with

Defendant, however, that even if the ALJ’s determination with regard to CRPS was erroneous, it

constituted harmless error. See Def.’s Mot. at 16–18.

Recall that at step two of the process, the burden is on Plaintiff to prove a “medically

determinable impairment” that is “severe” as defined by the regulations. Bowen v. Yuckert, 482

U.S. 137, 146–47, n.5 (1987). The ALJ may “not use [a claimant’s] statement of symptoms, a

diagnosis, or a medical opinion to establish the existence of an impairment[].”

20 C.F.R. §§ 404.1521, 416.921. Instead, an “impairment must be established by objective

medical evidence from an acceptable medical source.” Id. § 416.921. Once it is established that

7 the claimant has “a medically determinable impairment[], then” the inquiry turns to “whether [the]

impairment[] is severe.” Id. 4

The impairment at issue here is CRPS, “a chronic pain syndrome most often resulting from

trauma to a single extremity.” SSR 03-2P, 2003 WL 22399117, at *1. SSR 03-2P provides ALJs

with guidance on how to determine if CRPS is a medically determinable impairment and how the

duration and severity of CRPS is established, among other things. See id. at *3–5. It states that

“[]CRPS constitutes a medically determinable impairment when it is documented by appropriate

medical signs, symptoms, and laboratory findings.” Id. at *4. “For purposes of Social Security

disability evaluation,” specifically, SSR 03-2P provides, “[]CRPS can be established [as a

medically determinable impairment] in the presence of persistent complaints of pain that are

typically out of proportion to the severity of any documented precipitant,” such as a surgery or

injury, so long as one or more of the following signs is also documented: swelling, autonomic

instability, abnormal hair or nail growth, osteoporosis or involuntary movements of the affected

region of the initial injury. Id. And although the signs of CRPS may not be consistently present

in a claimant’s medical records, SSR 03-2P explains, “[w]hen longitudinal treatment records

document persistent limiting pain in an area where one or more of these abnormal signs has been

documented at some point in time since the date of the precipitating injury, disability adjudicators

can reliably determine that []CRPS is present and constitutes a medically determinable

impairment.” Id. Determination of whether CRPS constitutes a medically determinable

impairment is thus inherently complex. And therein lies the problem with the ALJ’s explanation

in this case.

4 In order to be “severe” an impairment must significantly limit a claimant’s ability to do basic work activities and meet the 12-month duration requirement. See 20 C.F.R. §§ 401.1522(a)–(b), 416.922(a)–(b); Yuckert, 482 U.S. at 146. 8 At step two of his analysis, the ALJ provided a list of Plaintiff’s severe medically

determinable impairments and stated, almost in passing:

The claimant has been diagnosed with chronic pain syndrome and complex regional pain syndrome. However, pain is considered a symptom, not an impairment . . . . After a thorough review of the record, the undersigned finds that there is insufficient objective medical evidence to support these diagnoses. As such, the claimant’s reported chronic pain syndrome, [and] complex regional pain syndrome[] . . . are not considered medically determinable impairments.

A.R. at 19 (internal citation omitted). This explanation is far from clear. First, the statement that

“pain is considered a symptom, not an impairment” directly contradicts SSR 03-2P, which

provides guidance to ALJs on how to determine whether CRPS is a medically determinable

impairment. See SSR 03-2p, 2003 WL 22399117, at *3–4. CRPS certainly can be an impairment.

See id. at *4 (stating that “CRPS constitutes a medically determinable impairment when it is

documented by appropriate medical signs, symptoms and laboratory findings”).

Next, the ALJ stated that there is “insufficient objective medical evidence to support th[e]

diagnos[i]s” of CRPS, A.R. at 19 (emphasis added), but that is not what the ALJ is tasked with at

this stage of the process. The focus should be on whether CRPS is a medically determinable

impairment, not whether it was properly diagnosed. If anything, the ALJ must explain why he

found CRPS was not a medically determinable impairment despite the diagnosis. The criteria for

diagnosis of CRPS and that for determination that CRPS is a medically determinable impairment

are substantially similar. Both require that a complainant’s subjective statements of pain be

accompanied by one of five documented abnormal physical signs. Compare SSR 03-2p, 2003 WL

22399117, at *2, with id. at *3–4. The ALJ did not explain the disconnect between Plaintiff’s prior

diagnosis of CRPS and the objective medical evidence the ALJ found insufficient to support a

finding that CRPS was a medically determinable impairment. 9 Plaintiff has a long history of reported pain originating from a flatfoot reconstruction

surgery in September 2011. See Pl.’s Br. at 7–8 (citing A.R. at 400–02). As a result, Plaintiff has

undergone multiple surgeries, including the implantation of a spinal cord stimulator, see id. (citing

A.R. at 515, 559, 711–12), and has been prescribed a host of medications to manage his pain, see

id. at 7 (citing A.R. at 457). The ALJ makes no mention of this record evidence in his discussion

of Plaintiff’s medically determinable impairments. Defendant attempts to make up for this deficit

by offering his own analysis of the record evidence justifying the ALJ’s determination, see Def.’s

Mot. at 15–16, but the court cannot consider the post-hoc rationalization of counsel, see Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 169 (1962) (“[A] reviewing court . . . must judge

the propriety of [agency] actions solely by the grounds invoked by the agency.”); see also Butler,

353 F.3d at 1002 n.5 (same).

Despite this lack of clarity, it is unnecessary for the court to decide whether the ALJ’s

determination with regard to CRPS constituted legal error, because any such error was harmless.

See PKD Lab’ys Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004); see also Shinseki v. Sanders,

556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful falls upon the party

attacking the agency’s determination.”). Courts have consistently held that “errors at step two of

the process do not necessarily require reversal so long as the ALJ considered the omitted

impairment(s) in evaluating the remaining steps in the sequential analysis.” Hicks v. Astrue, 718

F. Supp. 2d 1, 12 (D.D.C. 2010) (citing cases from the Sixth, Ninth, and Tenth Circuits); also

Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (explaining that step two “acts as a filter if

no severe impairment is shown the claim is denied, but the finding of any severe impairment,

whether or not it qualifies as a disability and whether or not it results from a single severe

impairment or a combination of impairments . . . , is enough to satisfy the requirement of step

10 two”). The question in this case is thus whether the ALJ considered Plaintiff’s CRPS in the

remaining steps of the sequential evaluation process. He did.

Although the ALJ determined that CRPS was not a medically determinable impairment, he

found that Plaintiff had nine other severe impairments, see A.R. at 18, and thus proceeded to step

three of the process to determine whether Plaintiff suffered from an impairment that met or equaled

a listed impairment, see id. at 19. Plaintiff does not argue that a finding that CRPS was a medically

determinable impairment would have changed the outcome at step three. Such an argument, if

sufficiently proved, would evidence prejudice. See 20 C.F.R. §§ 404.1509, 416.909 (explaining

that if one of the claimant’s medically determinable impairments, or a combination of those

impairments, meets or equals the criteria listed in the regulation, the complainant is deemed

disabled and the inquiry ends). Instead, Plaintiff argues that the ALJ, in determining his RFC, “did

not consider whether the combination of the Plaintiff’s impairments, including his [CRPS], had

any impact upon the Plaintiff’s abilities to perform work-related activities.” See Pl.’s Br. at 10;

Pl.’s Opp’n to Def.’s Mot. for J. of Affirmance & Reply to Def.’s Opp’n to Pl.’s Mot. for J. of

Reversal, ECF No. 20 [hereinafter Pl.’s Reply], at 4. But the record shows otherwise.

In determining Plaintiff’s RFC, the ALJ found, “[a]fter careful consideration of the entire

record,” that Plaintiff was capable of performing “light work,” with various limitations. See A.R.

at 20. In so finding, the ALJ stated that he had “considered all [of Plaintiff’s] symptoms,” id.,

including reports of Plaintiff’s “chronic symptoms of right foot pain, leg pain, [and] back pain,”

id. at 21. Plaintiff avers that the court may not take the ALJ at his word that he considered the

entire record. See Pl.’s Reply at 3 (citing Butler, 353 F.3d at 1002, n.5). Whatever the merit to

that argument, the court need not take the ALJ’s word for it because the decision itself evidences

consideration of the entire record. See id. at 20–25. The ALJ’s narrative discussion of Plaintiff’s

11 RFC spans over five pages, see id., and at least half of those pages are dedicated to a discussion of

records related to Plaintiff’s complaints of pain and evaluation of his CRPS over a four-year time

period, see id. at 21–24.

For example, the ALJ discusses the record showing that at Plaintiff’s initial examination

for pain management services in September 2015, Plaintiff “exhibited tenderness of the lumbar

facet joint, a positive straight leg raise on the right, and reduced 4-/5 right ankle dorsiflexion,” but

“otherwise [had] normal motor strength, a normal gait, normal balance, normal posture, and

normal sensation and reflexes of the bilateral lower extremities.” Id. at 22. The ALJ further notes

that “[s]ubsequent examinations from September 2015 through February 2016 consistently

revealed a normal gait without an assistive device, full strength of the bilateral lower extremities,

and no neurological deficits.” Id. “At a follow-up for right foot pain [i]n December 2016, an

examination showed that [Plaintiff] was able to stand on his toes with little difficulty or pain, and

demonstrated full muscle strength.” Id. (citing A.R. at 441). And at a February 2019 physical

examination where Plaintiff’s CRPS was assessed, see A.R. at 777, the ALJ observes the record

“showed hyperesthesia, but otherwise revealed normal coordination and full motor strength of the

bilateral lower extremities,” id. at 24; see A.R. at 774.

Thus, because it is clear that the ALJ went on to consider the impact of the symptoms of

Plaintiff’s CRPS “in evaluating the remaining steps in the sequential analysis,” any error

committed by the ALJ in finding that CRPS was not a medically determinable impairment was

harmless. See Hicks, 718 F. Supp. 2d at 12.

B. Evaluation of Plaintiff’s Subjective Complaints

Plaintiff next argues that the ALJ applied an improper standard in evaluating Plaintiff’s

subjective complaints of pain as part of his RFC determination. “The applicable regulations

12 prescribe a two-step process to determine whether a claimant suffers from symptoms (including

pain) that affect h[is] ability to perform basic work activities.” Butler, 353 F.3d at 1004 (citing

20 C.F.R. §§ 404.1529, 416.929). The first step—that a claimant must provide objective medical

evidence showing that a medically determinable impairment exists that could reasonably be

expected to produce the pain or other symptoms alleged, see 20 C.F.R. §§ 404.1529(a)-(b),

416.929(a)-(b); see also 42 U.S.C. §§ 423(a)(5)(A), 1382(H)(i)—is not in dispute here. As

discussed, Plaintiff was assessed as having nine severe medically determinable impairments. See

A.R. at 18. The second step requires the ALJ to assess “the intensity, persistence[,] and limiting

effects of the [claimant’s] pain . . . ‘to determine the extent to which the symptoms affect the

individual’s ability to do basic work activities.’” Butler, 353 F.3d at 1005 (quoting SSR

96–7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of An Individual’s

Statements, 1996 WL 374186, at *1 (SSA July 2, 1996)). That inquiry requires “the adjudicator

to make a finding about the credibility of the individual’s statements about the symptom(s) and its

functional effects.” Id. (internal quotation marks and citation omitted). It is here that Plaintiff

takes issue with the ALJ’s analysis.

“Because pain is ‘subjective and difficult to quantify,’” in making a credibility

determination, the ALJ must “take[] account of ‘any symptom-related functional limitations and

restrictions’ reported by the claimant and h[is] treating physician ‘which can reasonably be

accepted as consistent with the objective medical evidence and other evidence.’” Butler, 353 F.3d

at 1004 (quoting 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)). Factors the ALJ considers as

relevant to assessing a claimant’s pain are:

the claimant’s daily activities; the ‘location, duration, frequency, and intensity of’ the claimant’s pain; ‘precipitating and aggravating factors’; ‘[t]he type, dosage, effectiveness, and side effects of any

13 medication’ for pain relief; treatment the claimant receives or has received, other than medication, for pain relief; ‘any measures’ the claimant uses to relieve pain; and ‘other factors concerning [the claimant’s] functional limitations and restrictions due to pain.’

Id. (quoting 20 C.F.R. §§ 404.1529(c)(3)(i)(vii), 416.929(c)(3)(i)-(vii)). “[T]he ALJ ‘must

consider the entire case record’ and may not disregard the individual’s statements about the

intensity and persistence of h[is] pain ‘solely because they are not substantiated by objective

medical evidence.’” Id. at 1005 (emphasis added) (quoting SSR 96-7p, 1996 WL 374186, at

*2). Moreover, the ALJ’s decision “must contain specific reasons for the finding on credibility,

supported by the evidence in the case record, and must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s

statements and reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2. The ALJ satisfied

that standard here.

In assessing Plaintiff’s RFC, the ALJ observed that Plaintiff “report[ed] chronic symptoms

of right foot pain, leg pain, [and] back pain,” A.R. at 21, but, applying the credibility standard

articulated above, went on to find that “[a]ltogether, the objective medical evidence simply d[id]

not demonstrate the severity of [Plaintiff’s] subjective statements,” id. at 25. As discussed above,

supra pp. 11–12, the ALJ substantiated that finding with a thorough review of Plaintiff’s medical

record. And the ALJ did not, as is prohibited, solely rely on the objective medical evidence. See

SSR 96-7p, 1996 WL 374186, at *2. The ALJ also discussed “other evidence” that conflicted with

Plaintiff’s statements. He stated:

Along with the objective medical evidence, the claimant’s subjective statements are not entirely consistent with other evidence of record. Notably, the record indicates that he was able to travel to South Carolina on multiple occasions, via airplane, during the period at issue (Ex. B7F, Testimony). He also stated that he was able to run for at least three miles in May 2015, despite complaints of chronic foot pain and dyspnea (Ex. B7F). Further, reports show a history of 14 treatment noncompliance (Ex. B7F). As a whole, the undersigned finds that the claimant’s subjective statements are not entirely consistent with the evidence of record.

A.R. at 25 (emphasis added).

Plaintiff challenges this analysis, first arguing that “[t]here is no requirement that a

claimant’s subjective statements be entirely consistent with the other evidence of record,” Pl.’s Br.

at 13, and that the ALJ “cherry-picked the evidence to support his credibility assessment,” id. at

13–14. The court disagrees. Although there may not be a requirement “that a claimant’s subjective

statements be entirely consistent with the other evidence of record,” Pl.’s Br. at 13, the regulations

do provide that the ALJ may take into consideration such inconsistencies, in addition to the

objective medical evidence, see 20 C.F.R. §§ 404.1529(c)(1)–(3), 416.929(c)(1)–(3). That is

exactly what the ALJ did here—he noted the inconsistencies and considered them alongside the

objective medical evidence. See A.R. at 25. That other, consistent, evidence may exist is of no

consequence. The D.C. Circuit has made clear that “[w]hile contradictory evidence may exist,

such credibility determinations are for the factfinder who hears the testimony,” not for the court

on review. Brown v. Bowen, 794 F.2d 703, 706 (D.C. Cir. 1986); see also Malloy v. Comm’r of

Soc. Sec., 306 F. App’x 761, 764 (3d Cir. 2009) (“The presence of evidence in the record that

supports a contrary conclusion does not undermine the [ALJ’s] decision so long as the record

provides substantial support for that decision.”). Focusing on the objective evidence against

Plaintiff’s subjective complaints of pain is precisely the point of the credibility analysis; it does

not constitute cherry picking.

Plaintiff next attempts to contradict or contextualize certain evidence upon which the ALJ

relied—that Plaintiff traveled to and from South Carolina on multiple occasions and ran three to

four miles in May 2015—with Plaintiff’s testimony at the ALJ hearing. See Pl.’s Br. at 14 (citing

15 A.R. at 47–51). Plaintiff notes, for example, that when traveling he required ambulatory assistance

at the airport, and he disputes the medical record documenting his run. See id. Defendant is right

to observe that such a tactic—using Plaintiff’s subjective statements to undermine objective

evidence used to assess the credibility of Plaintiff’s subjective statements—has a circular quality

to it. See Def.’s Mot. at 23 (citing Cox v. Colvin, No. 14-1199, 2015 WL 5579603, at *4 (N.D.

Ala. Sept. 23, 2015)). At most, Plaintiff shows that the record is susceptible to more than one

interpretation, and where that is the case, deference is given to the ALJ. See, e.g., Izzo v. Comm’r

of Soc. Sec., 186 F. App’x 280, 283 (3d Cir. 2006) (explaining where “evidence in the record is

susceptible to more than one rational interpretation, [the court] must accept the [ALJ’s]

conclusions”).

Finally, Plaintiff argues in passing that the ALJ “completely” failed to explain his finding

that Plaintiff had a history of non-compliance. See Pl.’s Br. at 14. That argument is simply without

merit. By the court’s count, the ALJ explains Plaintiff’s non-compliance with treatment at least

three times in the decision. See A.R. at 24 (observing that “multiple providers recommended

physical therapy, but there is no evidence that [Plaintiff] attended any sessions during the relevant

period”); id. (explaining that “treatment notes indicate that [Plaintiff] does not always comply with

his recommended diet”); id. at 25 (“[T]reatment notes indicate that [Plaintiff] has reported asthma

medication noncompliance at times.”).

Accordingly, the court concludes that the ALJ’s evaluation of Plaintiff’s subjective

complaints of pain was proper because it “was based on substantial evidence in the record and

correctly applie[d] the relevant legal standards.” Jones, 647 F.3d at 355 (internal quotation marks

omitted).

16 V. CONCLUSION

For the foregoing reasons, the court denies Plaintiff’s Motion for Judgment of Reversal,

ECF No. 16, and grants Defendant’s Motion for Judgment of Affirmance, ECF No. 17.

A separate final, appealable order accompanies this Memorandum Opinion.

Dated: June 18, 2021 Amit P. Mehta United States District Court Judge