Grant v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHERRILLYN THEANELDA GRANT,
Plaintiff,
v. No. 21-cv-00526-ZMF
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Sherrillyn Theanelda Grant moves for reversal of Defendant Commissioner of the
Social Security Administration’s decision adopting the findings of an Administrative Law Judge
(“ALJ”) and denying her application for Social Security Disability Insurance Benefits (“DIB”).
See Pl.’s Mot. J. Rev., ECF No. 16. Defendant Commissioner moves for affirmance. See Def.’s
Mot. J. Affirmance, ECF No. 17. Ms. Grant identifies two errors in the ALJ’s findings: (1) that,
in determining Ms. Grant’s residual functional capacity (“RFC”), the ALJ violated the “treating
physician rule” by assigning only “some weight” to the opinion of Dr. Elizabeth Nolte, M.D.; (2)
that the ALJ failed to account for the effect that Ms. Grant’s limitation in head movements would
have on the availability of occupations she could perform in the national economy. Having
considered the parties’ submissions and the Administrative Record, 1 and for the reasons set forth
below, the Court will GRANT Plaintiff’s motion for a judgment of reversal, remand this matter to
1
The Administrative Record consists of ten exhibits. See ECF No. 11. For ease of reference,
citations to the Administrative Record will refer to the “AR” and cite to the consecutive page
numbers provided in the lower right-hand corner of each page.
1
the Commissioner for further proceedings, and DENY Defendant’s motion for a judgment of
affirmance.
I. BACKGROUND
A. Statutory Framework
The Social Security Act (the “Act”) provides DIB for “disabled” individuals. 42 U.S.C. §
423(a)(1). 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.” Id.§ 423(d)(1)(A). The impairment must be severe and must render the individual unable to perform
both “previous work” and “any other kind of substantial gainful work which exists in the national
economy.” Id. § 1382c(a)(3)(B); see 20 C.F.R. § 416.905.
The Social Security Administration (“SSA” or “Commissioner”) uses a five-step sequential
process to determine whether a claimant is disabled. See 20 C.F.R. § 416.920(a)(4). If a
determination can be made at any step, the SSA does not go on to the next step. 20 C.F.R.
§ 416.920(a)(4). The burden of proof is borne by the claimant at each of the first four steps and
switches to the Commissioner at step five. See Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir.
2004) (citing 20 C.F.R. §§ 404.1520, 416.920). At step one, the claimant must demonstrate she is
not presently engaged in “substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i). At step two,
the claimant must show that she has a “severe” medically determinable impairment that
“significantly limits [her] physical or mental ability to do basic work activities.” Id. §
416.920(a)(4)(ii). At step three, the claimant must show that her impairment—or combination of
impairments—“meets or equals” the criteria of an impairment listed in the SSA Commissioner’s
regulations. Id. § 416.920(a)(4)(iii). If the claimant’s impairment does not meet or equal a listed
2
impairment, the Commissioner proceeds to step four, which requires the Commissioner to
determine the claimant’s RFC and whether, in light of the RFC, the claimant can still perform any
relevant past work. See id. §§ 416.920(a)(4)(iv), 416.920(e)–(f). If the RFC indicates that the
claimant cannot engage in past work, then at step five, the ALJ looks to the claimant’s RFC, age,
education, and past work experience to determine if she can perform “other work” in the national
economy. See id. §§ 416.920(a)(4)(v), 416.920(g).
B. Factual Background
Ms. Grant’s Testimony and Reports
Ms. Grant has a master’s degree in business and previously worked as an administrative
assistant, health care worker, worker for a housing development company, veteran specialist, and
Army logistics specialist. See AR 14–16, 19, 144. Ms. Grant’s alleged disability began on
November 22, 2015—when she left her job as an administrative assistant—due to degenerative
disc disease of the lumbar spine, bipolar disorder, and depression. See AR 143–44.
In July 2016, Ms. Grant reported that she “applied for several employment opportunities.”
AR 1099. In February 2017, Ms. Grant reported that she was “able to dress, bathe, and groom
herself, cook and prepare food, do general cleaning, do her laundry, shop, manage her money, and
use public transportation whenever she need[ed] to . . . and [went] out to walk the dog whenever
she fe[lt] like it.” AR 566. In March 2017, Ms. Grant reported that she cooked once or twice a
week, did laundry twice a month, shopped two to three times a month, showered every other day,
dressed daily, and went out to walk the dogs. See AR 569. In August 2018, Ms. Grant reported
that she was trying to lose weight by swimming. See AR 868–69.
3
At her hearing, Ms. Grant testified that she had a driver’s license but no longer drove. See
AR 13–14. Instead, she used public transportation as her primary method of transportation. See
AR 14. She also testified that she had “lost all the support in [her] neck.” AR 27.
Medical Evidence
On January 10, 2016, Kimberly Seablom, PA-C, examined Ms. Grant using a Department
of Veterans Affairs “Neck (Cervical Spine) Conditions Disability Benefits Questionnaire.” AR
364–72. PA Seablom’s examination revealed forward flexion of 30 degrees, extension of 45
degrees, lateral flexion of 30 degrees on the right and 30 degrees on the left, and rotation of 60
degrees bilaterally in Ms. Grant’s cervical spine. See AR 366. PA Seablom noted that Ms. Grant
had “abnormal” initial range of motion and “localized tenderness or pain on palpation” of the
trapezius and cervical region, but that the abnormal range of motion did not “contribute to a
functional loss.” AR 366. After observing Ms. Grant’s repeated use, PA Seablom recorded
“additional loss of function or range of motion” that “significantly limit[ed] functional ability.”
AR 366–67. PA Seablom also noted that “regardless of repetitive use,” Ms. Grant herself did not
“report having any functional loss or functional impairment of the cervical spine.” AR 365.
Finally, PA Seablom concluded that Ms. Grant’s cervical spine condition did not “impact . . . her
ability to work” and she maintained “functional capacity for sedentary work.” AR 371. On
December 5, 2016, an exam by Dr. Philip Marion, M.D., recorded Ms. Grant’s “functional status”
as “[i]ndependent with [activities of daily living] and ambulation.” AR 1034–36.
On March 8, 2017, Dr. Elizabeth Nolte, M.D., examined Ms. Grant. See AR 568–71. Dr.
Nolte observed that Ms. Grant could walk on her toes and heels without difficulty, squat one-third
of the way, “[u]sed no assistive devices[,] [n]eeded no help changing for exam or getting on and
off exam table[, and was] [a]ble to rise from chair without difficulty.” AR 569. Dr. Nolte’s
4
physical examination of Ms. Grant’s cervical spine showed flexion of 45 degrees, extension of 10
degrees, lateral flexion of 30 degrees on the right and 15 degrees on the left, and rotation of 45
degrees bilaterally. See AR 570. Dr. Nolte diagnosed Ms. Grant with degenerative disc disease,
chronic neck and back pain, headaches, and a history of anxiety with panic attacks. See AR 571.
She also determined that Ms. Grant had “mild limitation in squatting and . . . moderate limitation
in bending, head movements and reaching. She should avoid frequent bending and heavy lifting.”
AR 571 (emphasis added).
In September 2017, an MRI of Ms. Grant’s cervical spine revealed evidence of
“[s]traightening of the cervical lordosis with multilevel degenerative disease and facet arthrosis . .
. at [the] C6-C7 with moderate bilateral neural foraminal narrowing and moderate central stenosis.”
AR 948–50. On February 20, 2018, Dr. Daniel Morgan, M.D., noted that Ms. Grant had “new
subjective weakness” and neck pain, as well as that she “would also benefit from a cervical pillow
for neck rest.” AR 914.
C. Procedural Background
On August 9, 2016, Ms. Grant filed an application for DIB. See AR 38. Her alleged
disability began on November 22, 2015. See AR 39. On March 20, 2017, the SSA denied Ms.
Grant’s claim. See AR 72–75. Ms. Grant subsequently filed a request for a hearing before an ALJ,
which was held on July 24, 2019. See AR 8.
On March 30, 2020, ALJ Michelle Allen denied Ms. Grant’s claim. See AR 54–68. At
step one, the ALJ found that Ms. Grant “ha[d] not engaged in any substantial gainful activity since
November 22, 2015, the alleged [disability] onset date.” AR 57. At step two, the ALJ determined
that she “ha[d] the following severe impairments: depressive disorder, generalized anxiety, bipolar
affective disorder, lumbar degenerative disc disease with radiculopathy, cervical stenosis, and
5
obesity.” 2 AR 57. At step three, the ALJ considered Ms. Grant’s impairments under listings 1.04
(disorders of the spine), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and
obsessive-compulsive disorders) and determined that she “d[id] not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).” AR 57–59.
The ALJ next determined that Ms. Grant had the RFC to “perform light work as defined in
20 CFR 404.1567(b),” with some limitations. 3 AR 59. In formulating the RFC, the ALJ relied on
the opinions of medical professionals who examined Ms. Grant, Ms. Grant’s own statements, and
her medical records. See AR 59–66. The ALJ determined that Ms. Grant’s “medically
determinable impairments could reasonably be expected to cause the alleged symptoms,” but
“statements concerning the intensity, persistence and limiting effects of these symptoms [were]
not entirely consistent with the medical evidence and other evidence in the record . . . .” AR 60.
In particular, the ALJ found that Ms. Grant’s testimony about her daily life was inconsistent with
her claims about the limiting effects of her symptoms. AR 66. The ALJ gave “limited weight” to
opinions in the notes from the Department of Veterans Affairs and “some weight” to the opinion
of Dr. Nolte. See AR 64–65.
2
Plaintiff has only raised physical impairments related to her cervical spine—and not mental
health impairments—as an issue on appeal. See Pl.’s Mot. J. Rev. at 6–9.
3
These limitations included that Ms. Grant “[wa]s able to climb ramps and stairs occasionally,
never climb ladders, ropes, or scaffolds, stoop occasionally, never kneel, crouch occasionally,
never crawl, can never work at unprotected heights, never moving mechanical parts and never
operating a motor vehicle, [wa]s able to perform simple, routine tasks; able to make simple work-
related decisions; [wa]s able to occasionally interact with co-workers and the public; [and wa]s
able to tolerate occasional changes in a routine work setting.” AR 59.
6
Based on her determination of Ms. Grant’s RFC and testimony of the vocational expert
(“VE”), Andrew Pasternak, the ALJ found in step four that Ms. Grant was “unable to perform any
relevant past work.” See AR 66. At step five, however, the ALJ found that—considering Ms.
Grant’s age, education, work experience, and RFC—jobs nevertheless existed in “significant
numbers in the national economy that [she] could perform.” See AR 67. The VE testified that an
individual with Ms. Grant’s characteristics could perform the requirements of representative
occupations such as (i) inspector and hand packager, (ii) assembler of small parts, and (iii) lens
matcher. See AR 68.
The ALJ concluded that a “finding of ‘not disabled’ [wa]s therefore appropriate . . . .”
AR 68. On December 22, 2020, the SSA Appeals Council denied Ms. Grant’s request for review.
See AR 1–3. Ms. Grant now seeks review of the SSA’s determination that she was not disabled,
arguing that that the ALJ erred at steps four and five. See Pl.’s Mot. J. Rev. at 6–9. On September
30, 2021, District Judge Carl J. Nichols referred this action to a Magistrate Judge for all purposes.
See Minute Order (Sept. 30, 2021).
II. LEGAL STANDARD
A district court sits in what is essentially an appellate role when it reviews the
Commissioner’s disability determination, which must be upheld “if it is supported by substantial
evidence and is not tainted by an error of law.” Smith v. Bowen, 826 F.2d 1120, 1121 (D.C. Cir.
1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Butler, 353 F.3d at 999 (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). This standard “requires more than a scintilla, but can be satisfied by
something less than a preponderance of the evidence.” Fla. Mun. Power Agency v. FERC, 315
7
F.3d 362, 365–66 (D.C. Cir. 2003) (quoting FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151,
1160 (D.C. Cir. 2002)).
“Substantial-evidence review is highly deferential to the agency fact-finder . . . .” Rosello
ex rel. Rosello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008). “An ALJ’s credibility
determinations, in particular, ‘are entitled to great deference . . . .’” Harrison Cnty. Coal Co. v.
Fed. Mine Safety & Health Review Comm’n, 790 Fed. App’x 210, 212 (D.C. Cir. 2019) (quoting
Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1107 (D.C. Cir. 1998)). “The
reviewing court may neither reweigh the evidence presented to it nor replace the Commissioner’s
judgment ‘concerning the credibility of the evidence with its own.’” Goodman v. Colvin, 233 F.
Supp. 3d 88, 104 (D.D.C. 2017) (quoting Crosson v. Shalala, 907 F. Supp. 1, 3 (D.D.C. 1995)).
But this deference requires that the ALJ build a “logical bridge” between the evidence and her
conclusions so that this Court may “assess the validity of the agency’s ultimate findings and afford
a claimant meaningful judicial review.” Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 67 (D.D.C.
2006) (quoting Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)).
On review, the “plaintiff bears the burden of demonstrating that the Commissioner’s
decision [was] not based on substantial evidence or that incorrect legal standards were applied.”
Settles v. Colvin, 121 F. Supp. 3d 163, 169 (D.D.C. 2015) (quoting Muldrow v. Astrue, No. 11-cv-
1385, 2012 WL 2877697, at *6 (D.D.C. July 11, 2012)). If the ALJ is found to have applied the
correct legal standards and met the substantial evidence threshold, the reviewing court may grant
the Commissioner’s motion for an affirmance of the disability determination. See, e.g., Hicks v.
Astrue, 718 F. Supp. 2d 1, 17 (D.D.C. 2010). If a court finds error in an ALJ’s determination that
a claimant was not disabled, it may reverse and remand, requiring the SSA to conduct further
8
proceedings consistent with the law. See, e.g., Jackson v. Barnhart, 271 F. Supp. 2d. 30, 38
(D.D.C. 2002).
III. ANALYSIS
Ms. Grant challenges the ALJ’s decision on two grounds: (1) in assessing Ms. Grant’s
RFC, the ALJ failed to give Dr. Nolte’s opinion controlling weight as prescribed under the
“treating physician rule;” and (2) the ALJ failed to account for the effect that Ms. Grant’s limitation
in head movements would have on the availability of occupations she could perform in the national
economy. See Pl.’s Mot. J. Rev. at 6–9.
A. The ALJ’s RFC Assessment and the Treating Physician Rule
Legal Standard
In making an RFC determination, an ALJ must consider “all of the relevant evidence” and
“must explain how [s]he considered and resolved any ‘material inconsistencies or ambiguities’
evident in the record, as well as the reasons for rejecting medical opinions in conflict with the
ultimate RFC determination.” Butler, 353 F.3d at 1000 (citing Titles II & XVI: Assessing Residual
Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996)). Under the regulations
in force at the time Plaintiff filed her claims, medical opinions by an individual’s treating
physicians “are entitled to ‘controlling weight’ if they are not inconsistent with other substantial
record evidence and are well-supported by medically acceptable clinical and laboratory diagnostic
techniques.” Id. at 1003 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). 4
4
These regulations were eliminated for claims filed after March 27, 2017, and replaced with new
standards for the evaluation of opinion evidence. See 20 C.F.R. §§ 404.1520(c), 416.920(c). “The
D.C. Circuit has not addressed whether its treating physician rule survives the change in the SSA’s
regulations,” however courts have “assume[d] that it does.” Melanie A. S. v. Kijakazi, No. 21-cv-
185, 2022 WL 1721196, at *10 n.15 (D.D.C. May 12, 2022), report and recommendation
adopted, 2022 WL 1718987 (D.D.C. May 27, 2022).
9
The treating physician rule acknowledges that “[b]ecause a claimant’s treating physicians
have great familiarity with [her] condition, their reports must be accorded substantial weight.” Id.(quoting Williams v. Shalala, 997 F.2d 1494, 1498 (D.C. Cir. 1993)). When evaluating the weight
of a treating physician’s opinion, the ALJ should consider six factors: (1) the “length of the treating
relationship and frequency of examination,” (2) the “nature and extent of the treating relationship,”
(3) the “supportability” of the opinion, (4) the “consistency” of the opinion with other record
evidence, (5) the physician’s specialization, and (6) any “other factors that tend to support or
contradict the medical opinion.” See Butler, 353 F.3d at 1003 n.7 (citing 20 C.F.R. §§
404.1527(d)(2)–(6), 416.927(d)(2)–(6)). But the ALJ does not have to reference each of these
factors when justifying her decision. See Matthews v. Saul, 2020 WL 5440573, No. 18-cv-1110,
at *1 (D.D.C. Sep. 10, 2020) (citing Grant v. Astrue, 857 F. Supp. 2d 146, 154–55 (D.D.C. 2012)).
An ALJ who rejects a treating physician’s opinion, however, must “explain [her] reasons
for doing so.” Williams, 997 F.2d at 1498 (citing Simms v. Sullivan, 877 F.2d 1047, 1052–53 (D.C.
Cir. 1989)). Generally, “citations to contradictory evidence are sufficient explanation for an ALJ’s
decision to discount the medical opinion of a treating physician.” Matthews, 2020 WL 5440573,
at *1 (citing Grant, 857 F. Supp. 2d at 154).
Dr. Nolte’s Opinion Regarding Limitation in Head Movements
Dr. Nolte opined that Ms. Grant that had “moderate limitation in bending, head movements,
and reaching.” AR 571. The ALJ afforded Dr. Nolte’s opinion “some weight as [Ms. Grant]’s
severe impairments result in functional limitations and the opinion is consistent with the evidence
in the record as a whole, including positive diagnostic tests and clinical examination findings.”
AR 64. The ALJ determined these impairments caused an impact on “postural limitations” and
“limitations on carrying and lifting.” AR 64. In regard to “limitations for head movements”
10
specifically, however, the ALJ determined that there was “no support in the record” and that
“clinical examination findings d[id] not record abnormal range of motion of the cervical spine.”
AR 64. Ms. Grant contends that the ALJ neither afforded the proper weight to Dr. Nolte’s opinion
nor gave an appropriate explanation as to why. See Pl.’s Mot. J. Rev. at 6–9.
The ALJ assigned “some weight” to Dr. Nolte’s opinion without even a passing reference
to other medical opinions. AR 64. However, to reject the opinion of a treating physician “requires
that the ALJ at least ‘note[] the contradictory evidence in the record.’” Williams v. Berryhill, 268
F. Supp. 3d 46, 53 (D.D.C. 2017) (citing Jones v. Astrue, 647 F.3d 350, 356 (D.C. Cir. 2011)).
The ALJ’s assertion that “there is no support in the record for limitations for head movements”
did not cite any evidentiary support or address Dr. Nolte’s contradictory opinion. See AR 64.
Reversal is appropriate in such circumstances. See Lane-Rauth, 437 F. Supp. 2d at 67 (reversing
ALJ’s decision where, contrary to the requirement that the ALJ “at least minimally discuss a
claimant’s evidence that contradicts the Commissioner’s position,” the ALJ simply concluded that
“there [was] absolutely no evidence in the record . . . .”) (quoting Godbey v. Apfel, 238 F.3d 803,
808 (7th Cir. 2000)).
“While the applicable authorities provide for a deferential standard of review, remand is
warranted where an ALJ mischaracterizes evidence that was presented.” Stubbs v. Saul, No. 18-
cv-01457, 2020 WL 1893173, at *6 (D.D.C. Mar. 23, 2020), report and recommendation adopted,
2020 WL 1891979 (D.D.C. Apr. 15, 2020) (citing Porter v. Colvin, 951 F. Supp. 2d 125, 136
(D.D.C. 2013)). The ALJ’s determination that there was “no support” for Dr. Nolte’s opinion and
“clinical examination findings d[id] not record abnormal range of motion of the cervical spine,”
AR 64, mischaracterizes the evidence for three reasons.
11
First, the benefits questionnaire recorded that Ms. Grant in fact had an “abnormal” initial
range of motion in her cervical spine. See AR 365–66. According to the questionnaire, full range
of motion allows forward flexion of 45 degrees, extension of 45 degrees, right and left lateral
flexion of 45 degrees, and right and left lateral rotation of 80 degrees. See AR 366. PA Seablom’s
examination showed forward flexion of 30 degrees, extension of 45 degrees, right and left lateral
flexion of 30 degrees, and bilateral rotation of 60 degrees. See id. PA Seablom recorded that the
abnormal initial range of motion itself did not “contribute to a functional loss.” AR 366. After
repeated use, however, PA Seablom recorded “additional loss of function or range of motion” that
did “significantly limit functional ability.” AR 366–67. PA Seablom also noted that “regardless
of repetitive use,” Ms. Grant did not “report having any functional loss or functional impairment
of the cervical spine,” AR 365, and that her “cervical spine (neck) condition” did not impact “her
ability to work,” AR 371. The ALJ only afforded “limited weight” to this questionnaire because
“the determination of service related disability [wa]s not comparable to the determination of
disability under Social Security rules and regulations.” AR 65. Any legal difference between what
qualifies as a service-related disability and one for the SSA, however, does not undermine the
relevance of the underlying medical evidence presented by the results of Ms. Grant’s tested range
of motion in her cervical spine. “[T]he outcome of the case depends on the demonstration of the
functional limitations of the disease or impairment rather than the mere diagnosis of the disease or
name of the impairment.” Davis v. Berryhill, 272 F. Supp. 3d 154, 177 (D.D.C. 2017) (quoting
McKean v. Colvin, 150 F. Supp. 3d 406, 417 (M.D. Pa. 2015)). The ALJ failed to otherwise
evaluate this medical evidence or explain how it factored into her decision to afford less weight to
Dr. Nolte’s opinion.
12
Second, Dr. Nolte’s opinion was informed by her own clinical examination, which the ALJ
failed to reference. See AR 64, 568–571. Dr. Nolte’s examination revealed reduced range of
motion since Ms. Grant’s examination fourteen months prior. Compare AR 366 with AR 570.
Specifically, a 35 degree reduction in extension, a 15 degree reduction of lateral flexion on the left,
and a 30 degree reduction of bilateral rotation. See AR 570.
Third, the September 2017 MRI of Ms. Grant’s cervical spine revealed evidence of
“[s]traightening of the cervical lordosis with multilevel degenerative disease and facet arthrosis . .
. at the C6-C7 with moderate bilateral neural foraminal narrowing and moderate central stenosis.”
AR 949–50. Again, the ALJ failed to explain how this medical evidence either supported or
contradicted Dr. Nolte’s opinion regarding Ms. Grant’s limitation in head movement, as well as
the ALJ’s decision to afford that opinion less weight. See AR 64.
“[A]n ALJ cannot merely disregard evidence which does not support [her] conclusion. A
reviewing court should not be left guessing as to how the ALJ evaluated probative material, and it
is reversible error for an ALJ to fail . . . to explain sufficiently the weight [s]he has given to certain
probative items of evidence.” Turner v. Astrue, 710 F. Supp. 2d 95, 105 (D.D.C. 2010) (first citing
Dionne v. Heckler, 585 F. Supp. 1055, 1060 (D. Me. 1984); and then citing Martin v. Apfel, 118
F. Supp. 2d 9, 13 (D.D.C. 2000)). Yet the ALJ’s decision failed to reference Dr. Nolte’s
examination or explain how the findings from the examination contradicted the opinion that Ms.
Grant had a moderate limitation in head movements. See AR 64. This distinguishes Dr. Nolte’s
opinion from those in cases where the ALJ highlighted an internal inconsistency within the treating
physician’s own opinion when deciding to afford that opinion less weight. See, e.g., Turner v.
Colvin, 964 F. Supp. 2d 21, 31–33 (D.D.C. 2013) (finding substantial evidence supported the
13
ALJ’s rejection of a treating physician’s opinion because it conflicted with other medical evidence,
including that physician’s own treatment notes).
Courts have affirmed an ALJ’s decision to give little weight to treating physicians where
the evidence showed their “ability to perform daily activities, such as taking personal care,
preparing simple meals, and shopping in stores independently.” Magee v. Berryhill, No. 17-cv-
1922, 2019 WL 329571, at *4 (D.D.C. Jan. 25, 2019). The ALJ’s decision does reference Ms.
Grant’s ability to “able to dress, bathe, groom herself, cook, prepare food, do general cleaning,
laundry, shop, manage her money and use public transportation without help,” but only in
connection with Ms. Grant’s own “statements about the intensity, persistence, and limiting effects
of her symptoms,” not Dr. Nolte’s opinion. AR 66. And—unlike in Magee—the ALJ did not also
“review[] other medical examinations of Plaintiff, all of which contradicted [the physician’s]
limitation findings.” 2019 WL 329571, at *4. Finally, the ALJ’s decision does not make clear
whether—and, if so, how—Ms. Grant’s daily activities alone are at all inconsistent with a finding
of a moderate limitation in head movements. See AR 64, 66; Outlaw v. Sec’y, Dep’t of Health &
Hum. Servs., No. 92-cv-2089, 1994 WL 149134, at *6 (D.D.C. Mar. 29, 1994) (remanding where
the ALJ found “Plaintiff's participation in certain daily activities” to be “inconsistent with the
treating physicians’ diagnosis,” but the ALJ failed to “adequately explain[] his reasons for
rejecting the opinions”). The ALJ failed to “build ‘an accurate and logical bridge from the
evidence to [her] conclusion’ so that, as a reviewing court, we may assess the validity of the
agency’s ultimate findings and afford a claimant meaningful judicial review.” Lane-Rauth, 437
F. Supp. 2d at 67 (citing Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)).
This case is also distinguishable from those cases in which “it is clear from the ALJ’s
decision as a whole . . . why the ALJ found [the physician]’s opinion to be not well-supported and
14
inconsistent with other evidence in the record.” Grant, 857 F. Supp. 2d at 153. Here, the ALJ
failed to make any “explicit comparison.” Id. at 153; see AR 64. Moreover, it is unclear how the
ALJ concluded that Dr. Nolte’s “clinical examination findings do not record abnormal range of
motion of the cervical spine or upper extremities” or why there was “no support in the record for
limitations for head movements.” AR 64. While the ALJ mentioned Ms. Grant’s daily activities,
nowhere does the ALJ cite any evidence from the record that—on its face—contradicts Dr. Nolte’s
opinion. See AR 66. Thus, the ALJ did not “provide a sufficient basis for this Court to understand
[her] reasoning when viewing the decision as a whole.” Colter v. Kijakazi, No. 20-cv-0632, 2022
WL 715218, at *11 (D.D.C. Mar. 10, 2022).
Remand to the ALJ for Reweighing of Dr. Nolte’s Opinion
Because the ALJ’s mistake left the factual record less than fully developed, reversal with
an instruction to award benefits would be inappropriate. Cf. Martin, 118 F. Supp. 2d at 18. Rather,
the SSA’s decision should be reversed and remanded with instructions to properly consider Dr.
Nolte’s opinion with reference to the medical evidence from the examinations of Ms. Grant’s
cervical spine. See Jones, 647 F.3d at 357. If the ALJ determines that Dr. Nolte is a “treating
physician,” her opinion that Ms. Grant had a moderate limitation in head movements is “entitled
to ‘controlling weight’ if [it is] not inconsistent with other substantial record evidence and [is]
well-supported by medically acceptable clinical and laboratory diagnostic techniques.” Butler,
353 F.3d at 1003 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). Alternatively, the ALJ may
determine that Dr. Nolte was not a treating physician. 5 See, e.g., Moore v. Berryhill, 313 F. Supp.
5In particular, the ALJ should consider the nature and extent of the relationship under 20 C.F.R.
§ 404.1527(a)(2) given that Dr. Nolte’s report stated Ms. Grant was “referred by the Disability
Determination Division for an internal medicine evaluation,” AR 568, and that she “was examined
for a consultative examination. No doctor-patient relationship exists or is implied by this
examination,” AR 571.
15
3d 275, 284 (D.D.C. 2018); Johnson v. Colvin, 197 F. Supp. 3d 60, 74 (D.D.C. 2016). Ultimately,
the ALJ may reach the same conclusion as before. But whatever her conclusion is, the ALJ must
“show [her] work.” Revere v. Berryhill, No. 3:17-cv-774, 2019 WL 99303, at *9 (E.D. Va. Jan.
3, 2019) (citing Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017)).
B. VE’s Testimony
“If the ALJ looks to a [VE] in assessing a claimant’s ability to do other work, the ALJ
‘must accurately describe the claimant’s physical impairments in any question posed to the
expert.’” Butler, 353 F.3d at 1005–06 (quoting Simms, 877 F.2d at 1050) (citing Williams, 997
F.2d at 1499). “Hypothetical questions to a [VE] ‘must present a faithful summary of the treating
physician’s diagnosis unless the ALJ provides good reason to disregard that physician’s
conclusions.’” Espinosa v. Colvin, 953 F. Supp. 2d 25, 35 (D.D.C. 2013) (quoting Lockard v.
Apfel, 175 F. Supp. 2d 28, 32 (D.D.C. 2001). “Deficiencies in the ALJ’s description of the
claimant’s condition ‘undermine the foundation for the expert’s ultimate conclusion that there are
alternative jobs’ that the claimant is capable of performing.” Butler, 353 F.3d at 1005–06 (quoting
Simms, 877 F.2d at 1053) (citing Williams, 997 F.2d at 1499).
During the administrative hearing, the ALJ posed the following hypothetical to the VE:
Let’s assume a hypothetical individual of claimant’s age, education,
and past work. Let’s further assume that this individual is limited to
light work . . . Let’s further assume that this individual is limited to
occasional climbing of ramps and stairs, never climbing ladders,
ropes, or scaffolding, occasional stooping, and crouching, but no
kneeling, and no crawling. This individual is limited to work in
unprotected heights, or with moving mechanical parts, or operating
a motor vehicle. This individual is limited to simple, routine tasks
and can make simple, routine work-related decisions. The individual
is limited to occasion interaction with social – supervisors,
coworkers, and the public. And can tolerate occasional changes in a
routine work setting. Can the hypothetical individual perform past
work as actually or generally performed in the national economy?
16
AR 32. In response to the ALJ’s question, the VE determined that a hypothetical individual with
Ms. Grant’s characteristics could not perform any relevant past work, but identified several
occupations in the national economy that they could perform. See AR 33.
However, given the ALJ’s determination that there was “no support in the record for
limitations for head movements,” AR 64, the ALJ did not include this limitation in the hypothetical
posed to the VE. Ms. Grant argues that this absence made the hypothetical defective. See Pl.’s
Mot. J. Rev. at 9.
The Court cannot conclude whether the hypothetical posed to the VE accurately reflected
Ms. Grant’s physical limitations without first determining whether Ms. Grant’s RFC should have
included a moderate limitation in head movements. Accordingly, upon remand, the ALJ will
conclude either: (1) the RFC should not have included a moderate limitation in head movements,
in which case no amendment to the ALJ’s hypothetical is needed; or (2) the RFC needs to include
such limitation, in which case—if the ALJ elects to call a VE—the ALJ must pose a revised
hypothetical referencing that additional limitation.
IV. CONCLUSION
For the foregoing reasons, it is this 26th day of July, 2022,
ORDERED that Plaintiff’s motion for a judgment of reversal is GRANTED and this
matter is remanded to the Commissioner for further proceedings consistent with this opinion, and
it is further
ORDERED that the Defendant’s motion for a judgment of affirmance is DENIED.
Zia M. Faruqui
___________________________________
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE
17