Washington v. Saul ( 2021 )

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
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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.
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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
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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
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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
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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
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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).
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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
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