Porter v. Astrue

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SARAH A. PORTER,

Plaintiff,
v. Civil Action No. 11-2304 (JEB/AK)
CAROLYN COLVIN,
Acting Commissioner,
Social Security Administration,

Defendant.

MEMORANDUM OPINION

On May 8, 2013, Magistrate Judge Alan Kay, to whom this Social Security dispute had

been referred for full case management, issued his Report and Recommendation. He

recommended that the decision of the Administrative Law Judge denying Plaintiff Social

Security Income (SSI) benefits should be affirmed in part and remanded in part. Defendant, the

Acting Commissioner of the Social Security Administration, has filed Objections as permitted

under Local Civil Rule 72.3(b). Finding that the Report strikes the appropriate balance, the

Court will adopt it and remand the case for further proceedings.

I. Background

The full factual background of the case is set out in detail in the 27-page Report. A brief

recap here will suffice. On March 24, 2005, Plaintiff, then a photo technician for CVS

Pharmacy, was involved in an automobile accident on the New Jersey Turnpike. See

Administrative Record (AR) at 222. She suffered a fracture of the base of the fifth metatarsal of

her right foot, as well as contusions of her lung, C5-C6 disc herniation, C4-C5 disc bulging

(developing mild disc-degenerative disease), and possible cord edema. Id. at 261-62. As a result

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of these injuries, Plaintiff initially filed for SSI benefits on April 13, 2006, and ultimately applied

for benefits for the closed period from March 24, 2005, to December 31, 2006, claiming that

these injuries limited her ability to sit or stand and caused her constant pain. Id. at 78, 111-19.

This claim was first denied on July 31, 2006, and again on April 27, 2007. Id. at 36.

Porter thereafter filed a timely request for a hearing on June 14, 2007, and one was held before

an ALJ on February 7, 2008. See id. The ALJ issued his decision on March 28, 2008, denying

Plaintiff’s disability on the ground that she was capable of sedentary work. Id. at 36-46.

Plaintiff appealed this decision to the Appeals Council, which issued an Order

Remanding Case to Administrative Judge on January 29, 2010, directing the ALJ to: (1)

“Evaluate the claimant’s mental impairment”; (2) “Further evaluate the claimant’s subjective

complaints”; (3) “Obtain evidence from a medical expert to clarify the nature and severity of the

claimant’s impairments”; (4) “Give further consideration to the claimant’s maximum residual

functional capacity during the entire period at issue and provide rationale with specific

references to evidence . . . [which includes] evaluat[ing] treating source opinions . . . and

nonexamining source opinion . . . and explain[ing] the weight given to such opinion evidence . . .

[p]articularly . . . to the opinion of treating sources Drs. Bruce J. Ammerman and Charles F.

Colao”; and (5) “If warranted by the expanded record, obtain supplemental evidence from a

vocational expert . . . .” Id. at 50-51 (emphasis in original).

On remand, the ALJ held a supplemental hearing and issued his second decision on

January 26, 2011, again denying Plaintiff’s disability based on a finding of capacity to perform

existing work in the national economy. Id. at 19-29. Plaintiff appealed this decision, and on

October 21, 2011, the Appeals Council denied her request for review, id. at 8-11, making the

ALJ’s January 2011 ruling the Commissioner’s final decision.

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 Having exhausted her administrative remedies, Plaintiff sought judicial review of this

decision under 42 U.S.C. § 405(g). This Court referred the dispute to Magistrate Judge Kay on

January 3, 2012, for full case management. See Referral Order, Jan. 3, 2012. The parties then

cross-moved, respectively, for reversal and affirmance. Plaintiff claimed that the “ALJ abused

his discretion and reached a conclusion that is arbitrary, capricious, unsupported by substantial

evidence, and contrary to law.” See Pl.’s Mot. at 6. She alleged two principal errors by the ALJ:

(1) his conclusion that the limitation arising from her mental impairment was “moderate,” and

(2) his determination of her Residual Functional Capacity (RFC), which entailed a negative

credibility finding regarding her symptoms and a grant of little weight to the opinions of her

treating physicians. See id. at 6-13. Defendant responded that the ALJ’s decision was

“supported by substantial evidence and was reached through the proper application of the law,”

and it should therefore be affirmed. See Def.’s Mot. for Affirm. at 17.

In his May 8, 2013, Report, Magistrate Judge Kay recommended that each Motion be

granted in part and denied in part. See R&R at 26. Specifically, he recommended that (1) the

ALJ’s assessment of Plaintiff’s mental impairment should be upheld, and (2) his assessment of

Plaintiff’s RFC should be reversed and the case remanded to the Commissioner for further

proceedings. Id. Defendant timely filed Objections to the Report on May 21, 2013, pursuant to

Local Civil Rule 72.3(b), asserting that the Magistrate Judge erred in recommending remand on

the issue of Plaintiff’s RFC. See Def.’s Obj. at 1-2. Plaintiff, meanwhile, filed a Response on

June 5, 2013, seeking to have the Report adopted in full. See Pl.’s Resp. at 1.

II. Legal Standard

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

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

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recommendations to which objection is made as provided in paragraph (b).” See, e.g., Winston

& Strawn LLP v. FDIC, 841 F. Supp. 2d 225, 228 (D.D.C. 2012) (district court must conduct de

novo review of objections to magistrate judge’s report and recommendation). The Supreme

Court has determined, conversely, that the federal rules governing review of the

recommendations of a magistrate judge, as provided under § 636(b)(1)(C), do not require a

district judge to review those portions of a magistrate judge’s report not objected to. See

Thomas v. Arn, 474 U.S. 140, 150-51 (1985). In sum, the district judge “may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1)(C); see also LCvR 72.3(c).

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

the SSA Commissioner, made through the ALJ, to determine whether his findings are supported

by substantial evidence in the record. See 42 U.S.C. § 405(g). The Court must uphold

determinations of the ALJ “supported by substantial evidence and . . . not tainted by an error of

law.” Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir. 1987); Butler v. Barnhart, 353 F.3d 992,

999 (D.C. Cir. 2004). “Substantial evidence” under the Social Security Act “means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . .”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). It is “more than a scintilla,

but . . . something less than a preponderance of the evidence.” Fla. Gas Transmission Co. v.

FERC, 604 F.3d 636, 645 (D.C. Cir. 2010) (citation omitted).

The standard of review in Social Security cases calls for “considerable deference” to

decisions rendered by the ALJ and Appeals Council; nevertheless, the reviewing court “remains

obligated to ensure that any decision rests upon substantial evidence.” Davis v. Shalala, 862 F.

Supp. 1, 4 (D.D.C. 1994). The reviewing court must also determine whether the ALJ “has

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

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

Butler, 353 F.3d at 999) (internal quotation marks omitted). While the ALJ is “entitled to weigh

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

794 F.2d 703, 705 (D.C. Cir. 1986), the ALJ “cannot merely disregard evidence which does not

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

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

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

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

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

III. Analysis

The Magistrate Judge in this case made two recommendations regarding the ALJ’s

decision. First, he recommended that the determination that Plaintiff was not mentally disabled

be upheld. See R&R at 13-14. Neither party challenges this finding, see Pl.’s Resp. at 1, and the

Court sees no reason to upset this portion of the Report, particularly since the ALJ’s decision in

finding that Plaintiff’s mental impairment did not “meet or equal the requirements set forth in the

Listing of Impairments” was clearly based on substantial evidence. See AR at 22. Second,

Magistrate Judge Kay recommended that the ALJ’s decision should be reversed and remanded

on the issue of Plaintiff’s Residual Functioning Capacity. This determination is what Defendant

objects to. See Def.’s Obj. at 1-2. The Magistrate Judge specifically recommended

reconsideration of Plaintiff’s RFC during the claimed period of disability with respect to two

issues: (1) “the appropriate assignment of weight to the opinions of Plaintiff’s treating sources”;

and (2) the evaluation of Plaintiff’s “subjective statements regarding her symptoms” in relation

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to the “medical records in this case.” R&R at 26. Before discussing Plaintiff’s RFC and these

two specific issues, the Court will briefly explain how disability determinations are made.

A. Disability Determinations

To qualify for SSI under the Social Security Act, a claimant must establish that she is

“disabled.” 42 U.S.C. § 1382(a)(1). An individual is considered “disabled” if she is “unable to

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

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

expected to last for a continuous period of not less than twelve months.” Id. § 1382c(a)(3)(A).

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

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

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

kind of substantial gainful work which exists in the national economy.” Id. § 1382c(a)(3)(B).

The SSA employs a five-step sequential evaluation process to determine whether a

claimant is disabled, as defined by the Social Security Act in 20 C.F.R. § 404.1505. See, e.g.,

Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Stankiewicz v. Sullivan, 901 F.2d 131, 133

(D.C. Cir. 1990). First, the claimant must show that she is not presently engaged in a

“substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i). Second, she must show that she has

a “severe medically determinable physical or mental impairment.” Id. § 416.920(a)(4)(ii).

Third, the claimant must show that her impairment meets or equals an impairment listed in

Appendix 1 to the Commissioner’s regulations. Id. § 416.920(a)(4)(iii). If the claimant’s

impairment is listed, then she is conclusively presumed disabled and the inquiry ends. Id.

§ 416.920(d). If the impairment is not listed, the Commissioner moves on to the next step, but

must first determine the claimant’s RFC, id. § 416.920(e), which reflects “what an individual can

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still do despite his or her limitations.” Ross v. Astrue, 636 F. Supp. 2d 127, 132 (D.D.C. 2009).

Fourth, the claimant must show, based on the RFC, that her impairment prevents her from

performing her “past relevant work.” 20 C.F.R. § 416.920(a)(4)(iv). Fifth, once the claimant has

satisfied the first four steps, the burden shifts to the Commissioner to show that the claimant is

capable of “mak[ing] an adjustment to other work” based on her RFC, age, education, and work

experience. Id. § 416.920(a)(4)(v); Butler, 353 F.3d at 997 (“The claimant carries the burden of

proof on the first four steps.”).

The dispute here stems from determinations made under Step 3 of this assessment. In

addressing the ALJ’s specific findings under this step, the Court bears in mind that it is “not to

determine . . . whether [Plaintiff] is disabled,” but to “assess only whether the ALJ’s finding that

[Plaintiff] is not is based on substantial evidence and a correct application of the law.” Butler,

353 F.3d at 999.

B. The RFC Determination

Where, as here, a claimant’s impairment is not listed in the Commissioner’s regulations,

Step 3 of the disability analysis requires the ALJ to determine her RFC. See 20 C.F.R.

§ 416.920(a)(4)(iii) & (e). Under the authority of the Commissioner, the SSA publishes Social

Security Rulings that “are binding on all components of the Social Security Administration.

These rulings represent precedent[ial] final opinions and orders and statements of policy and

interpretations that [the SSA has] adopted.” 20 C.F.R. § 402.35(b)(1). According to Social

Security Ruling (SSR) 96-8p, “RFC is an administrative assessment of the extent to which an

individual’s medically determinable impairment(s), including any related symptoms, such as

pain, may cause physical or mental limitations or restrictions that may affect his or her capacity

to do work-related physical and mental activities.” Titles II & XVI: Assessing Residual

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Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *2 (S.S.A July 2, 1996).

According to SSR 96-8p, RFC is “assessed . . . based on all of the relevant evidence in the case

record, including information about the individual’s symptoms and any ‘medical source

statements’ . . . submitted by an individual’s treating source or other acceptable medical

sources.” Id.

In addition to the requirement that the RFC assessment “must be based on all of the

relevant evidence in the case record,” id. at *5 (emphasis in original), SSR 96-8p also establishes

“narrative discussion requirements” that direct the ALJ to explain, in writing, (1) the weight

assigned to medical opinions in determining RFC and (2) the credibility of a claimant’s

symptoms. Id. at *7; see, e.g., Mellon v. Astrue, No. 08-2110, 2009 WL 2777653, at *11

(D.S.C. Aug. 31, 2009) (“The Ruling also requires specific discussion of (i.e., writing about)

credibility determinations made in connection with testimony about the nature and extent of a

claimant’s symptoms and/or pain and their affect on RFC as well as decisions relating to the

weight given to relevant medical reports.”).

The Magistrate Judge here concluded that the ALJ fell short on each element of the

narrative-discussion requirements – namely, that (1) the ALJ failed to properly weigh the

medical opinions of treating physicians, see R&R at 25, and (2) the ALJ’s challenge to Plaintiff’s

credibility regarding her symptoms was “not supported by substantial evidence.” Id. at 17. In

requesting that the Court decline to adopt the Report, Defendant objects to both of these findings.

Because the Court must conduct a de novo review of all objections to the Report, Winston, 841

F. Supp. 2d at 228, these two objections will be considered separately.

1. Weight Given to Medical Opinions

Medical opinions are to be assessed according to the standard set out in SSR 96-8p:

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 The RFC assessment must always consider and address medical
source opinions. If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the
opinion was not adopted.

Medical opinions from treating sources about the nature and
severity of an individual’s impairment(s) are entitled to special
significance and may be entitled to controlling weight. If a treating
source’s medical opinion on an issue of the nature and severity of
an individual’s impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record,
the adjudicator must give it controlling weight.

SSR 96-8p at *7.

Precedent in this Circuit, moreover, requires the ALJ to grant substantial weight to the

reports and opinions of a claimant’s treating physicians. See Butler, 353 F. 3d at 1003 (“Because

a claimant’s treating physicians have great familiarity with [her] condition, their reports must be

accorded substantial weight.”) (citation omitted) (internal quotation marks omitted).

Consequently, a “treating physician’s report is binding on the fact-finder unless contradicted by

substantial evidence.” Id. Similarly, 20 C.F.R. §404.1527(c)(2) states that “[g]enerally, we give

more weight to opinions from [a claimant’s] treating sources, since those sources are likely to . . .

provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) . . . .”

Where an ALJ finds that controlling weight should not be afforded to the opinions of a

claimant’s treating physicians, he is directed by regulation to apply a series of factors to

determine what weight should be granted to those opinions in accordance with the “treating

physician rule.” See 20 C.F.R. § 404.1527(c)(2). These factors are: (1) examination

relationship; (2) treatment relationship; (3) length and nature of treatment; (4) supportability of

treating physician’s opinion by medical sources; (5) consistency of the opinion with the record as

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a whole; (6) whether the opinion was rendered by a specialist; and (7) other evidence brought to

the attention of the ALJ. Id.

In its January 2010 remand, the Appeals Council directed the ALJ to evaluate and assign

weight to the opinions of Plaintiff’s treating and non-treating physicians, with particular attention

to the opinions of her two treating physicians, Drs. Ammerman and Colao. See AR at 49. The

ALJ appears not to have followed this directive, affording little deference to certain opinions

contained in reports by Drs. Colao (March 28, 2005, April 11, 2005, April 18, 2006, September

12, 2006, December 22, 2006), Ammerman (January 15, 2007), and Quraishi (October 3, 2006),

another treating physician. See id. at 27. The ALJ’s justification for disregarding these opinions

of Plaintiff’s treating physicians was that they had each opined on Plaintiff’s disability, and

“determinations of disability are an issue reserved to the Commissioner of Social Security.” Id.

Other medical reports by Drs. Colao, see id. at 233, 234, 235, 236-37, 238-39, 240, 241, 242,

245, 246-47, 248, 249-50, 251, 255-56, and Quraishi, see id. at 216-17, 218, 219, 220, went

unaddressed.

While dismissing the above opinions, the ALJ in contrast afforded considerable weight to

the 2010 report by Dr. Joseph Fermaglich, prepared several years after Plaintiff’s claimed period

of disability and without personal examination of Plaintiff. See id. at 26. Dr. Fermaglich, in

completing his Medical Source Statement of Ability to Do Work-Related Activities, see id. at

348-58, cited only Dr. Ammerman’s October 24, 2006, report and ultimately concluded that

Plaintiff “[q]ualifies for regular work. No restriction applies.” Id. at 358. The ALJ also

substantially relied on the opinion of Dr. Jacqueline McMorris, dated July 31, 2006, who

concluded that Plaintiff was “[p]artially credible” without further explanation, id. at 26-27, 198-

203, and on Dr. Isabel Pico’s affirmance of Dr. McMorris’s assessment. Id. at 27, 268. Certain

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reports by Dr. Colao issued in November and December of 2006, toward the end of Plaintiff’s

period of claimed disability, were also heavily considered. See id. at 26, 226-29, 233. The ALJ

assigned weight to these medical opinions based on their consistency with “conservative

treatment and medical images showing only minimal degradation in [Plaintiff’s] spine” and “the

above stated residual functional capacity.” See id. at 26-27.

In reviewing the ALJ’s conclusions, Magistrate Judge Kay determined that, in effect, he

had given “little weight to the medical opinions [of] Plaintiff’s treating physicians . . . and he

[had] relied instead upon reports by non-examining physicians.” R&R at 24-25. The Magistrate

Judge further noted that, in doing so, the ALJ had failed to apply the “treating physician rule” “to

determine what degree of weight should be assigned to the opinion” of a treating physician, if it

is not given controlling weight. Id. at 25. In several instances where the “ALJ appropriately

rejected the determinations of disability in [certain] medical reports pursuant to 20 C.F.R. §

404.1527(d)(1),” the Magistrate Judge found that his rejection of opinions by treating physicians

in their totality had gone too far because he had “also disregarded the substantive information

contained in these reports.” See id. at 23 n.21. Based on these findings, the Magistrate Judge

correctly concluded that the ALJ had neither given controlling weight to the opinions of

Plaintiff’s treating physicians nor “provide[d] an adequate rationale for his failure to do so,”

thereby “fail[ing] to properly evaluate both non-medical and medical evidence that contradicted

his RFC assessment.” Id. at 25.

Defendant has objected to the Magistrate Judge’s findings on several grounds. First,

Defendant contends that the ALJ’s heavy weighting of Dr. Fermaglich’s opinion was justified,

noting that he made “adjustments to that opinion weighing in Plaintiff’s favor.” Def.’s Obj. at 5-

6. No matter how the ALJ weighed Dr. Fermaglich’s opinion, he still needed to accord

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controlling weight to Plaintiff’s treating physicians or sufficiently explain why he did not.

Brown, 794 F.2d at 705-09. In addition, modifying an opinion because the ALJ “clearly

disagreed” with its conclusion militates against granting great weight to that opinion above those

of treating physicians. See Def.’s Obj. at 5-6.

Second, Defendant attempts to deflect the Magistrate Judge’s criticism of the great

weight granted to the opinions of Drs. McMorris and Pico by virtue of their qualifications as

“experts in the disability program . . . [whose] opinions are valuable to adjudicators.” See id. at

6-7. Although “the State agency medical consultant’s job is not to examine claimants,”

Defendant submits that “[b]oth have medical degrees and the Social Security Administration has

found them qualified to render opinions about claimant functioning.” Id. at 7. Again, Defendant

misapprehends the weighing issue at hand, which relates to the “treating physician rule.” See 20

C.F.R. § 404.1527(c). Specifically, it is not the qualifications of these medical experts that have

been called into question, but rather the great weight given to their opinions, as non-treating

physicians, in contrast to the limited deference granted to the opinions of treating physicians.

Third, Defendant suggests that, because the ALJ incorporated findings by Plaintiff’s

treating physicians, “it is not clear what benefit would result from remanding the case to change

or articulate differently the assignment of weight given to [their] opinions . . . .” Def.’s Obj. at.

at 8. She makes a similar argument for not applying the requisite regulatory factors in

determining the weight to be granted to the opinions of these physicians. Id. at 6, 8-9. This is

not some technical failing, however. Weight was erroneously assigned to medical opinions

based on consistency with “conservative treatment and medical images showing only minimal

degradation in [Plaintiff’s] spine” or “the extent [to which an] opinion is consistent with the

above residual functional capacity . . . .” See AR at 26-27. The ALJ, in other words, put the cart

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before the horse. Weighing medical opinions is one factor in the determination of RFC, not the

other way around. See SSR 96-8p.

Because none of Defendant’s objections is ultimately persuasive, the Court agrees with

Magistrate Judge Kay’s determination that the ALJ failed to properly weigh medical opinions

pursuant to SSR 96-8p and 20 C.F.R. § 404.1527(d)(1). See R&R at 20-25.

2. Evaluation of Plaintiff’s Symptoms

A separate recommended basis for remand here concerned the ALJ’s analysis of

Plaintiff’s symptoms. A symptom is defined as “an individual’s own description of his or her

physical or mental impairment(s).” Titles II & XVI: Evaluation of Symptoms in Disability

Claims: Assessing the Credibility of an Individual’s Statements, SSR 96-7p, 1996 WL 374186,

at *2 (S.S.A July 2, 1996). A claimant’s statements about her symptoms are not themselves

sufficient to establish the “existence of a physical or mental impairment or that the individual is

disabled,” id.; instead, the RFC determination requires a two-step process to assess symptoms:

First, the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s) . . . that
could reasonably be expected to produce the individual’s pain or
other symptoms. . . . Second . . . the adjudicator must evaluate the
intensity, persistence, and limiting effects of the individual’s
symptoms to determine the extent to which the symptoms limit the
individual’s ability to do basic work activities.

Id.; see 20 C.F.R. § 404.1529 (similarly articulating this two-step process). Non-compliance

with SSR 96-7p warrants reversal of a decision of the ALJ, even if evidence suggests his

conclusions are ultimately correct. See Lechner v. Barnhart, 321 F. Supp. 2d 1015, 1026-27,

1030 (E.D. Wis. 2004).

With respect to the first step, the ALJ determined that Plaintiff’s impairments “could

reasonably be expected to produce the types of symptoms alleged.” AR at 25. Specifically, he

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found that Plaintiff had two severe impairments during the period in question: a spinal condition

and dysthymia (depression), see id. at 22; he further summarized her symptoms as, inter alia, an

inability to “sit, stand, walk, or move about comfortably for more than two hours per day

because of her injuries and related pain . . . throughout her entire body five out of seven days in a

week . . . [with] side effects from pain medications including fatigue, weakness, nausea, delayed

comprehension, and slurred speech.” Id. at 24. Because this first step is not in dispute, the Court

will focus its attention on the second step, concerning the limiting effects of Plaintiff’s

symptoms. See SSR 96-7p.

In the second step, the ALJ must look to the claimant’s credibility regarding the alleged

limiting effects of her symptoms as they relate to the medical evidence in the record. See Butler,

353 F.3d at 1005. This evaluation must be “based on a consideration of the entire record,” and

statements “may not be disregarded solely because they are not substantiated by objective

medical evidence.” SSR 96-7p at *1; see 20 C.F.R. § 404.1529(c)(2). This is because

“symptoms can sometimes suggest a greater level of severity of impairment than can be shown

by the objective medical evidence alone.” SSR 96-7p at *3; see 20 C.F.R. § 404.1529(c)(3).

The determination by the ALJ “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 at *2; see Butler, 353 F.3d at

1005.

Here, Plaintiff’s statements indicate that she was unable to return to school or work

because of her pain, see AR at 172-80, 186-87, 296-97, 299-301 302, 325; could not sit, stand, or

walk for more than two hours a day, see id. at 152-54; could not reach, lift, or bend, see id. at

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137, 138, 155; and required assistance to care for her children. See id. at 154, 160-65. The ALJ

nevertheless found that Plaintiff’s statements of pain and limitation were inconsistent with the

medical record because “[m]edical images show[ed] mild scoliosis, mild degeneration, and a

small cervical disc herniation [and] [t]he treatment was routine and conservative.” AR at 25

(emphasis in original).

The ALJ does not, however, appear to have analyzed the totality of medical evidence,

particularly those portions that undermine his characterization of the record. In his January 6,

2006, examination of Plaintiff, Dr. Quraishi found tenderness of the “spinous process of C5, C6,

C7, but mainly along the levator scapula and trapezius,” resulting in movements that were

“limited and painful.” Id. at 214. He also found “diminished sensation” along portions of

Plaintiff’s right side and commented that “[i]t hurts [Plaintiff] when she has to sit or stand for

long periods [and] [b]ending and lifting will bother her.” Id. Dr. Quraishi recommended

physical therapy and sent Plaintiff for MRI scans. Id. at 214-15. On March 21, 2006, Dr.

Mathews examined Plaintiff and found “moderately severe tenderness starting in [Plaintiff’s]

lower cervical spine,” “weakness globally in both legs,” a “medium sized herniation at [C]5-6,”

and a “mild protrusion of the L4-5 disk” after MRI scans. Id. at 195. Evidence of “injury to the

thoracic spine” led Dr. Mathews to order an MRI that, upon review on April 4, 2006, indicated

“a small herniation in the mid-thoracic spine with slight cord indentation.” Id. at 194, 196. Dr.

Colao corroborated Dr. Mathews’s report on September 12, 2006, finding “a herniated disc in

[Plaintiff’s] thoracic area and also a herniated lumbar disc at L4-L5.” Id. at 236. Upon

examination on October 24, 2006, Dr. Ammerman noted that Plaintiff “has evidence of post

traumatic cervical and lumbar strain with radiculopathy.” Id. at 263. He prescribed cervical and

lumbar epidural blocks to address the pain. Id.

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 By disregarding this evidence, the ALJ found that Plaintiff’s allegations regarding the

“intensity, persistence and limiting effects” of her symptoms were not credible. Id. at 24-25.

Magistrate Judge Kay found that the “ALJ emphasized (by using bold type) [portions of] certain

medical records that supported his aforementioned determination.” R&R at 18. Not

surprisingly, the Magistrate Judge concluded that “there is substantial evidence that contradicts

the ALJ’s characterization of Plaintiff’s injuries as ‘mild’ and her treatment as ‘routine and

conservative’ and his resulting conclusion that ‘claimant’s limitations may not have been as

severe as she alleges.’” Id. at 20 (citing AR at 25). (“Conservative,” in this context, refers to

non-surgical treatment. See R&R at 19; AR at 190.)

Indeed, the conclusion of the ALJ is in tension with both the totality of the medical

record and the controlling SSR. He failed to evaluate the comprehensive record when evaluating

the severity of Plaintiff’s symptoms. An ALJ must “explain sufficiently the weight he has given

to certain probative items of evidence” so the reviewing court is not “left guessing as to how the

ALJ evaluated probative evidence.” Apfel, 118 F. Supp. 2d at 13 (citations omitted). Absent

such explication, the ALJ’s representation of the record has the appearance of a “cherry-picked”

subset of medical evidence against which Plaintiff’s symptoms were judged. Such reliance on

selective evidence appears to be exactly what happened here. Because the Court finds that the

objective medical evidence does appear to support Plaintiff’s statements regarding “the intensity,

persistence, and limiting effects” of her symptoms, the ALJ’s findings to the contrary are not

supported by substantial evidence.

Yet even if Plaintiff’s statements were not fully supported by the medical record, SSR

96-7p specifically states that “an individual’s statements about the intensity and persistence of

pain or other symptoms or about the effect the symptoms have on his or her ability to work may

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not be disregarded solely because they are not substantiated by objective medical evidence.”

SSR 96-7p at *1 (emphasis added); see 20 C.F.R. § 404.1529(c)(2). SSR 96-7p delineates a host

of factors “that the adjudicator must consider in addition to the objective medical evidence when

assessing the credibility of an individual’s statements.” SSR 96-7p at *3; 20 C.F.R. §

404.1529(c)(3); see Grant v. Astrue, 857 F. Supp. 2d 146, 156 (D.D.C. 2012) (“The ALJ must

weigh a number of specific factors in assessing a claimant’s credibility.”). These factors are:

(1) The individual’s daily activities; (2) The location, duration,
frequency, and intensity of the individual’s pain or other
symptoms; (3) Factors that precipitate and aggravate the
symptoms; (4) The type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) Treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) Any measures other than treatment the individual
uses or has used to relieve pain or other symptoms. . . ; and (7)
Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.

SSR 96-7p at *3; see 20 C.F.R. § 404.1529(c)(3). Therefore, if Plaintiff’s statements did not

conform to the medical record, that alone would be insufficient to find them not credible.

Instead of engaging in an analysis under this framework, the ALJ employed a pre-

determined RFC to substantiate his finding on credibility:

After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity
assessment.

AR at 25 (emphasis added). In so finding, he reversed the credibility-assessment process: SSR

96-7p requires that an ALJ assess a claimant’s statements about the limiting effects of her

symptoms in determining RFC; consistency with the RFC assessment cannot, therefore, be the

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determinative factor in a process set out to assess RFC. See Bjornson v. Astrue, 671 F.3d 640,

645 (7th Cir. 2012) (noting this “backward” analysis of credibility arises from use of a

“boilerplate” template by SSA ALJs, by which a pre-determined RFC assessment is later

justified by a credibility finding).

Defendant contends that, even if the ALJ erred, Plaintiff cannot show prejudice. See

Def.’s Obj. at 2. The Court disagrees. The ALJ characterizes the medical record in a way that

makes Plaintiff’s statements appear inconsistent, leading to an adverse credibility finding that

directly influences her RFC. Because the totality of the record casts her complaints in a very

different light – indeed, as supported by the medical record – it could very well lead to a

different result, and prejudice does potentially lie. The Court, therefore, agrees with the

Magistrate Judge’s recommendation that, upon remand of the RFC issue, the ALJ shall re-

evaluate “Plaintiff’s subjective statements regarding her symptoms and the medical records in

this case.” R&R at 26.

IV. Conclusion

For the reasons set forth above, pursuant to Local Civil Rule 72.3(c), the Court shall

adopt Magistrate Judge Kay’s May 8, 2013, Report and Recommendation. Pursuant to 42 U.S.C.

§ 405(g), the Court will issue a separate Order remanding the case to the SSA Commissioner for

further proceedings consistent with this Opinion and the Report and Recommendation of the

Magistrate Judge.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 28, 2013

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