UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) EDITH ANN HIGGINS, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-27 (RBW) ) ANDREW SAUL, in his official capacity ) as Commissioner of the Social Security ) 1 Administration, ) ) Defendant. ) )

MEMORANDUM OPINION

The plaintiff, Edith Ann Higgins, brings this civil action against the defendant, Andrew

Saul, in his official capacity as Commissioner of the Social Security Administration (“SSA”) (the

“Commissioner”), challenging the Commissioner’s decision denying her claim for disability

insurance benefits pursuant to

(g) (2018). See generally Complaint (“Compl.”).

On January 20, 2016, this Court “referred [the case] to a Magistrate Judge for full case

management up to, but excluding, trial[,] . . . includ[ing], with respect to any dispositive motions,

preparation of a report and recommendation.” Order at 1 (Jan. 20, 2016), ECF No. 3.

Thereafter, the plaintiff filed a Motion for Judgment of Reversal (“Pl.’s Mot.”), and the

Commissioner filed the Defendant’s Motion for Judgment of Affirmance and in Opposition to

Plaintiff’s Motion for Judgment of Reversal (“Def.’s Mot.”). On March 3, 2017, the Magistrate

Judge issued a Report and Recommendation recommending that the Court deny the plaintiff’s

1 Andrew Saul is the current Commissioner of the Social Security Administration, see Commissioner, Social Security, https://www.ssa.gov/agency/commissioner.html (last visited Aug. 12, 2019), and the Court therefore substitutes him for former Acting Commissioner Nancy A. Berryhill as the proper party defendant pursuant to Federal Rule of Civil Procedure 25(d). motion and grant the defendant’s motion. See Report and Recommendation (the “Report” or “R

& R”) at 1. Currently before the Court are the Plaintiff’s Objections to the Report and

Recommendation of the Magistrate Judge (“Pl.’s Objs.”). Upon careful consideration of the

parties’ submissions, 2 the Court concludes that it must grant in part and deny in part the

plaintiff’s motion for a judgment of reversal and deny the defendant’s motion for a judgment of

affirmance.

I. BACKGROUND

A. Statutory and Regulatory Background

The Social Security Act provides disability insurance benefits and supplemental security

income to qualifying individuals with a disability. See

(a)(1), 1381, 1381a.

The Act defines “disability” as an “inability 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.”

§ 423(d)(1)(A). “With certain exceptions not relevant here, an

individual is disabled ‘only if [her] physical or mental impairment or impairments are of such

severity that [she] 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.’” Butler v. Barnhart,

(D.C. Cir. 2004)

(alterations in original) (quoting

(d)(1)(A), 1382c(a)(3)(B)).

2 In addition to the documents already identified, the Court considered the following submissions in rendering its decision: (1) the Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Judgment of Reversal (“Pl.’s Mem.”); (2) the Defendant’s Memorandum in Support of Her Motion for Judgment of Affirmance and in Opposition to Plaintiff’s Motion for Judgment of Reversal (“Def.’s Mem.”); (3) the Plaintiff’s Response to Motion for Judgment of Affirmance and Reply to Motion for Judgment of Reversal (“Pl.’s Resp.”); (4) the Defendant’s Response to Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation (“Def.’s Resp.”); and (5) the Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Objections to the Magistrate’s Report and Recommendation (“Pl.’s Reply”).

2 The Commissioner uses a five-step process to determine whether a claimant is disabled,

see

, with “[t]he claimant carr[ying] the burden of proof on the first four

steps,” Butler,

. At the first step, the claimant must demonstrate that she is not

engaged in “substantial gainful activity,”

(a)(4)(i), which is defined as work

that “[i]nvolves doing significant and productive physical or mental duties; and [ ] i[s] done (or

intended) for pay or profit,”

§ 404.1510. At the second step, the claimant must establish that

she has a “severe medically determinable physical or mental impairment that meets the [twelve-

month] duration requirement.” Id. § 416.920(a)(4)(ii). An impairment is “severe” if it

“significantly limits her physical or mental ability to do basic work activities.” Id. § 416.920(c).

At the third step, if the claimant can establish that her “impairment(s) [ ] meets the duration

requirement” and “meets or equals one of [the] list[ed] [impairments] in appendix 1” of the

SSA’s regulations, the Commissioner “will find that [she] [is] disabled.” Id. § 416.920(a)(4)(iii),

(d). If the claimant does not make this showing, the Commissioner’s inquiry moves on to the

fourth step, which requires the claimant to demonstrate that her impairment prevents her from

performing her “past relevant work,” id. § 416.920(a)(4)(iv), (e), which is defined as “work that

[a claimant] ha[s] done within the past [fifteen] years, that was substantial gainful activity, and

that lasted long enough for [the claimant] to learn to do it,” id. § 404.1560(b)(1). “Once a

claimant has carried the burden on the [ ] four[th] step[], the burden shifts to the Commissioner

on step five to demonstrate that the claimant is able to perform ‘other work.’” Butler,

(quoting

(f), 416.920(f)).

To evaluate a claim at steps four and five, the Commissioner must “assess and make a

finding about [the claimant’s] residual functional capacity based on all the relevant medical and

other evidence in [the claimant’s] case record.”

(e). A claimant’s residual

3 functional capacity “is the most [the claimant] can do despite [physical and mental] limitations”

resulting from her “impairment(s)[] and any related symptoms.”

§ 416.945(a)(1). The

“[residual functional capacity] assessment must [ ] identify the [claimant]’s functional limitations

or restrictions and assess his or her work-related abilities on a function-by-function basis.” SSR

96–8p,

, at *1 (July 2, 1996). Specifically, the residual functional capacity

assessment “must address both the remaining exertional and nonexertional capacities of the

individual.”

. “Exertional capacity addresses an individual’s limitations and restrictions

of physical strength and defines the individual’s remaining abilities to perform each of seven

strength demands: [s]itting, standing, walking, lifting carrying, pushing, and pulling.”

“Nonexertional capacity considers an individual’s ability to perform the following work-related

functions: postural activities like stooping and climbing; manipulative activities like reaching

and handling; visual activities; communicative activities; and mental activities.” Davis v.

Berryhill,

(D.D.C. 2017) (citing SSR 96–8p,

, at *6).

“The [SSA] regulations describe a two-step process for evaluating symptoms[.]” SSR

96–7p,

, at *2. “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.”

“In evaluating the intensity and persistence of [a claimant’s]

symptoms, . . . [the Commissioner] consider[s] all of the available evidence, including [the

claimant’s] medical history, the medical signs and laboratory findings, and statements about how

[the] symptoms affect [the claimant],” and “determine[s] the extent to which [the] alleged

4 functional limitations and restrictions due to pain or other symptoms can reasonably be accepted

as consistent with the medical signs and laboratory findings and other evidence.”

(a). Statements about how the symptoms affect the claimant may include opinions

“from acceptable medical sources,”

§ 404.1527(a)(1); “[o]pinions from medical sources who

are not acceptable medical sources and from nonmedical sources,” id. § 404.1527(f)(1); and

statements from the claimant herself or other individuals, see id. § 404.1529(c)(4). Acceptable

medical sources include “treating sources,” such as the claimant’s own physician who has

“provided [the claimant] with medical treatment or evaluation and who has, or has had, an

ongoing treatment relationship with [the claimant],” id. § 404.1527(a)(2); nontreating sources,

such as a physician who has examined the claimant “but does not have . . . an ongoing treatment

relationship with [the claimant],” id. § 404.1527(a)(2); or “nonexamining source[s],” id.

§ 404.1527(c)(3), meaning physicians “who ha[ve] not examined [the claimant] but provide[] a

medical or other opinion,”

(2012). At the time the plaintiff in this case

applied for benefits, nonacceptable medical sources included “nurse practitioners, physicians’

assistants, naturopaths, chiropractors, audiologists, and therapists.”

(d)(1)

(2012). 3 If the claimant requests a hearing, the Commissioner may also consider assessments

regarding the claimant’s residual functional capacity “made by . . . State agency medical . . .

consultants . . . based on their review of the evidence in the case record.”

§ 404.1513(a)(5).

“[W]henever [an] individual’s statements about the intensity, persistence, or functionally

limiting effects of pain or other symptoms are not substantiated by objective medical evidence,

the [Commissioner] must make a finding on the credibility of the individual’s statements based

3 Since the plaintiff in this case applied for benefits, “the [SSA] regulations have been amended and for claims filed after March 27, 2017, a ‘Licensed Advance Practice Registered Nurse, or other licensed advanced practice nurse with another title’ may be considered an ‘acceptable medical source.’” Troy v. Colvin,

(D.D.C. 2017) (quoting

(a), 416.902(a)).

5 on consideration of the entire case record.” SSR 96–7p,

, at *2. “The reasons

for the credibility finding must be grounded in evidence and articulated in the determination or

decision.”

For example,

[i]t is not sufficient to make a conclusory statement that ‘the individual’s allegations have been considered’ or that ‘the allegations are (or are not) credible[.]’ . . . The determination or decision must contain specific reasons for the finding on credibility, supported by evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the [Commissioner] gave to the [ ] statements and the reasons for that weight.”

“The administrative review process consists of several steps.”

(a).

First, the Commissioner makes an “[i]nitial determination” on a claimant’s application.

§ 404.900(a)(1). Second, “[i]f [a claimant] [is] dissatisfied with an initial determination, [she]

may ask [the Commissioner] to reconsider it,” id. § 404.900(a)(2), and third, “[i]f [a claimant]

[is] dissatisfied with the reconsideration determination, [she] may request a hearing before an

administrative law judge” (“ALJ”), id. § 404.900(a)(3). Finally, “[i]f [a claimant] [is]

dissatisfied with the decision of the [ALJ], [she] may request that the Appeals Council review the

decision.” Id. § 404.900(a)(4). Once these four steps are completed, the Commissioner “ha[s]

made [his] final decision.” Id. § 404.900(a)(5). “Any individual, after [a] final decision [by] the

Commissioner[,] . . . may obtain review of such decision by a civil action commenced within

sixty days after the mailing . . . of notice of such decision[,] . . . [and] [s]uch action may be

brought in the district court of the United States for the judicial district in which the plaintiff

resides.”

(g). The district court may affirm, modify, or reverse the decision of

the Commissioner with or without remanding it for a rehearing. See

6 B. Factual Background and Procedural History

The plaintiff filed her application for disability benefits on June 28, 2012. See

Administrative Record (“AR”) 18. In her application, she “alleg[ed] disability beginning April

30, 2012,” AR 18, based on “chronic pulmonary restrictive disease, sleep apnea, and diabetes,”

see AR 61.

In support of her application, the plaintiff completed and submitted a “Function Report”

and a “Work History Report.” See AR 184–205. In the Work History Report, the plaintiff

reported that, in the past fifteen years, she had held positions as a pharmacy technician at a clinic

and a retail business, a customer service representative at a call center and a utility business, and

a quality assurance agent at a call center. See AR 187. In the plaintiff’s Function Report, which

is a questionnaire regarding “[h]ow [her] . . . conditions limit[ed] [her] activities,” the plaintiff

reported that she “ha[d] periods when [she] c[ould not] concentrate,” “g[ot] out of breath

quickly,” “sometimes ha[d] a hard time breathing,” AR 198, and was “unable to stay awake for

long periods of time,” AR 199. She also reported that she “often t[ook] longer to complete tasks

because [she was] tired [and] sleepy” and could pay attention only for “about [thirty] minutes.”

AR 203. As to her daily activities, the plaintiff reported that she “[d]ress[ed] [her] minor child,

d[id] household chores, [and] cook[ed][,] taking frequent breaks between every task.” AR 199.

Additionally, she reported that she prepared “[c]omplete meals” three to four times per week, AR

200, went outside two to three times per week, see AR 201, “read[], watch[ed] [television, and

used the] computer” daily, “[s]p[oke] with people on the phone and computer” four to five times

per week, and went to church weekly, AR 202. She also indicated that she was able to pay bills,

count change, handle a savings account, and use a checkbook and money orders. See AR 201.

7 The plaintiff’s adult daughter, Lula Barnes, also completed a Function Report regarding

the plaintiff’s limitations. See AR 209–16. Barnes reported that the plaintiff “[wa]s unable to

concentrate for long periods of time, [ ] los[t] her train of thought often,” AR 209, and “ha[d]

trouble completing task[s] because she falls asleep,” AR 214. Barnes also reported that the

plaintiff did “everything necessary” for her minor child, who at the time was almost two years

old, AR 210, prepared “[c]omplete meals” weekly, AR 211, did “[c]leaning and laundry” daily

“with frequent breaks,” AR 211, and “read[], wr[ote], play[ed] cards, play[ed] computer games,

[and] watch[ed] [television]” daily but was “prone to failing asleep while doing” those activities,

AR 213.

To evaluate the plaintiff’s claim, the SSA obtained various medical records documenting

the plaintiff’s medical history. Specifically, it obtained progress notes from Laura Worby, a

certified nurse practitioner (“Nurse Worby”), recording Nurse Worby’s treatment of the plaintiff

from January 2011 to June 2012. See AR 365–461. The records reflect Nurse Worby’s findings

that the plaintiff had the following conditions: type II diabetes, hypertension, morbid obesity,

emphysema, a personal history of tobacco use, and postablative hypothyroidism. See AR 366.

Nurse Worby’s records also reflect that she treated these conditions by, inter alia, prescribing

various medications, see, e.g., AR 366–67, advising the plaintiff on her diet, see, e.g., AR 373

(reporting that she “encouraged [the plaintiff] to . . . monitor diet[] [and] to limit soda intake”),

and “counsel[ing] [the plaintiff] on the dangers of tobacco use and urg[ing] [her] to quit”

smoking cigarettes, AR 367. Additionally, Nurse Worby’s records reflect that the plaintiff was

hospitalized at the Washington Hospital Center from January 30 to February 2, 2012, due to

“emph[y]s[e]ma exacerbation, pneumonia, [and] heart failure” and was “discharged on [two]

liters of continuous [oxygen].” AR 378.

8 On August 17, 2012, the SSA obtained a medical opinion from Dr. Earl Nicholas, a state

agency consultant. See AR 77. Dr. Nicholas’s report acknowledges receipt of the plaintiff’s and

Barnes’s Function Reports, the plaintiff’s Work History Report, and the pre-June 2012 medical

records. See AR 71–72. Dr. Nicholas’s report makes various factual findings regarding the

plaintiff’s medical history and concluded that the plaintiff has exertional, postural, and

environmental limitations. See AR 74–75. As to the plaintiff’s exertional abilities, Dr. Nicholas

found that the plaintiff could frequently lift or carry less than ten pounds, stand or walk with

normal breaks for a total of two hours in an eight-hour workday, sit with normal breaks for a

total of six hours in an eight-hour workday, and push or pull with no limits. See AR 74. As to

the plaintiff’s postural abilities, he concluded that the plaintiff could frequently balance and

stoop and occasionally climb ramps or stairs, kneel, crouch, and crawl, but could never climb

ladders, ropes, or scaffolds. See AR 74. Finally, as to the plaintiff’s environmental abilities, Dr.

Nicholas concluded that the plaintiff could be exposed to extreme cold, wetness, and noise on an

unlimited basis, but must “[a]void even moderate exposure” to extreme heat, humidity, vibration,

fumes, odors, dusts, gases, poor ventilation, and hazards. AR 75. Ultimately, however, Dr.

Nicholas concluded that the plaintiff’s “limitations d[id] not prevent [her] from performing work

[she] ha[d] done in the past as a customer service representative.” AR 77. Accordingly, he

concluded that the plaintiff was not disabled. See AR 77. 4

The Commissioner rendered an initial decision denying the plaintiff’s claim on August

20, 2012. See AR 18. Thereafter, the plaintiff sought reconsideration of the Commissioner’s

4 The Court notes that the record contains another opinion from Dr. Nicholas, which is signed by him on the same date as the opinion cited above and contains the same findings regarding the plaintiff’s limitations but concludes that the plaintiff cannot perform her past work and is disabled. See AR 61–68. Because the ALJ did not consider this alternative opinion, see AR 23 (citing AR 74–75), and because neither the plaintiff nor the defendant asserts that the ALJ should have considered it or that the opinion undermines the ALJ’s conclusion, the Court need not consider it in evaluating the plaintiff’s objections to the Magistrate Judge’s Report.

9 decision. See AR 92. In response, the SSA obtained a second medical opinion from Dr.

Jacqueline McMorris, another state agency consultant. See AR 78–86. In addition to the

materials received by Dr. Nicholas, Dr. McMorris received various medical records that the SSA

obtained from the Washington Hospital Center in August and December 2012. See AR 79. Dr.

McMorris affirmed Dr. Nicholas’s findings as to the plaintiff’s abilities, see AR 82–83, as well

as his conclusion that the plaintiff’s limitations did not prevent her from performing her past

work as a customer service representative, see AR 85. Accordingly, Dr. McMorris also

concluded that the plaintiff was not disabled. See AR 85. Upon reconsideration of his initial

decision denying the plaintiff’s claim, taking into account the second opinion from Dr.

McMorris, the Commissioner again denied the plaintiff’s claim on January 11, 2013. See AR

18. Then, on February 13, 2013, the plaintiff filed a written request for a hearing, which the

Commissioner granted. See AR 18.

Prior to her administrative hearing, the plaintiff submitted additional evidence, including

a “Sleep Disorders Residual Functional Capacity Questionnaire” completed by Nurse Worby on

March 7, 2014. AR 539, 542. Nurse Worby reported on the questionnaire that the plaintiff

experienced “daytime sleep attacks” that typically occurred four to five times per day and lasted

forty-five minutes each time, AR 539, as well as “side effects of medications” in the form of

“[d]rowsiness/sedation,” AR 540. Nurse Worby also found that the plaintiff’s “[d]iabetic

neuropathy interfere[d] with standing.” AR 542. Due to these issues, Nurse Worby concluded

that the plaintiff would likely need to take four unscheduled breaks to rest during an average

workday, with each break lasting an average of forty-five minutes. See AR 541. Nurse Worby

also concluded that the plaintiff could sit continuously for only thirty minutes at a time and for

less than a total of two hours in an eight-hour workday with normal breaks, and stand

10 continuously for only twenty minutes at a time and for less than two hours in an eight-hour work

day with normal breaks. See AR 540.

On April 23, 2014, an ALJ conducted a hearing on the plaintiff’s claim, which included

testimony from the plaintiff and an impartial vocational expert. See AR 18. As to her

symptoms, the plaintiff testified, inter alia, that she “was falling asleep . . . more often, even

though [she was] using [her] [continuous positive airway pressure (‘CPAP’)] machine at night,”

and that, in January 2013, she “fell asleep in the middle of [ ] writing [a grocery] list.” AR 53.

She further testified that “the only reason . . . [Barnes was] still living at home [with her] [wa]s

because . . . [she] f[e]ll asleep so eas[il]y [and she] d[id not] want anything to happen to her”

then-three-year-old daughter. AR 43–44. She also testified that she used oxygen “all day every

day,” AR 38, “[b]ecause if [she] want[ed] to do anything at all [she] ha[d] to have the oxygen

on,” AR 52. She further testified that she used a travel oxygen tank that weighed “maybe seven

pounds,” as well as a “stationary” tank that she used at home. AR 52. The plaintiff also testified

that she “originally applied [for disability benefits] when [her medical providers] first told [her]

that [she] was going to be on [ ] oxygen[,] . . . because that’s what everybody said [she] was

supposed to do since [she] was [ ] on [ ] oxygen.” AR 56.

As to her daily activities, the plaintiff testified that she “g[o]t [her] three-year-old

[daughter] ready for school,” AR 46, and walked her daughter four blocks to school, see AR 47,

“normally . . . stop[ping] a couple of times going up [a] hill,” AR 50. She also testified that she

was “able to . . . bath[e] [her]self and dress [her]self” but that it was “a slow process,” and that

she was also able to “wash dishes, . . . wipe off [ ] the furniture[,] and [ ] [i]f [she] t[ook] [her]

time[,] . . . sweep the floors,” AR 49, and do laundry, so long as there were no detergents or

products present that “irritate[d] [her] lungs and [ ] breathing,” AR 48. The plaintiff further

11 testified that she would “try to prepare dinner” and “get it started, [but] normally somebody else

ha[d] to finish it.” AR 47. She additionally testified that she watched television for about two or

three hours a day, see AR 54, and played memory games on the computer for “[m]aybe an hour”

each day, AR 54, but that she did not read, talk to friends on the telephone, or spend time going

out with friends, see AR 55. She also testified that she could lift and carry about fifteen pounds,

see AR 48, and sit down comfortably for “[a]bout [ ] half an hour,” AR 50.

The vocational expert testified that the plaintiff’s past work as a pharmacy technician was

“light” and her past work as a customer service representative and quality assurance agent was

“sedentary.” AR 57. In response to hypothetical questions from the ALJ, the vocational expert

opined that if the plaintiff were limited to standing or walking approximately two hours and

sitting approximately six hours in an eight-hour workday, she could perform her past sedentary

positions, but if she were limited to sitting for two hours in an eight-hour workday, she could not

perform any of her past relevant work or any other work. See AR 58–59. In response to

questioning from the plaintiff’s representative, the vocational expert also testified that, “[i]f [a]n

individual is off task for [fifteen] to [eighteen] percent of the workday,” the individual could not

maintain any work in the national economy. AR 59.

On August 21, 2014, the ALJ issued a decision determining that the plaintiff is not

disabled and denied the plaintiff’s claim. See AR 25. Following the five-step analysis outlined

above, the ALJ concluded at step one that the plaintiff “ha[d] not engaged in substantial gainful

activity since April 30, 2012, the alleged onset date” of her disability. AR 20. The ALJ then

concluded at step two that the plaintiff “ha[d] the following severe impairments: hypertension,

diabetes, COPD, sleep apnea, and obesity,” but concluded at step three that none of those

impairments, alone or in combination, “me[t] or medially equal[ed] the severity of one of the

12 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” AR 20. The ALJ then assessed

the plaintiff’s residual functional capacity and concluded that she

ha[d] the residual functional capacity to perform sedentary work as defined in 20 C[.]F[.]R[.] [§] 404.1567(a) except lifting up to [ten] pounds occasionally, standing or walking approximately two hours, sitting approximately six hours in an eight[-] hour workday; pushing and pulling are unlimited except as shown for lifting and carrying; never crawling or climbing ladders, ropes, or scaffolds; frequently balancing, occasionally climbing ramps and stairs, stooping, crouching, and kneeling; and . . . avoid[ing] even moderate exposure to extreme heat, humidity, vibration, fumes, odors, dust, gases, poor ventilation, and hazards such as machinery and heights.

AR 21.

In further assessing the plaintiff’s residual functional capacity, the ALJ concluded that

although the plaintiff’s “medically determinable impairments could reasonably be expected to

cause [her] alleged symptoms” of “being unable to stay awake, periods when she c[ould not]

concentrate, getting out of breath quickly, and sometimes having a hard time breathing,” the

plaintiff’s “statements concerning the intensity, persistence[,] and limiting effects of these

symptoms [we]re not entirely credible.” AR 21. Specifically, the ALJ concluded that “[s]everal

elements in the record call[ed] into question the credibility of the [plaintiff’s] allegations,”

namely, the plaintiff’s “testi[mony] that she applied for disability when she began using oxygen,

because that is what everyone told her she was supposed to do,” that she “ha[d] not been

compliant with her treatment,” AR 21, and that “her activities of daily living [went] beyond

limitations that preclude work,” AR 22. With respect to the plaintiff’s daily activities, the ALJ

observed that the plaintiff

cares for her children and grandchildren, performs personal care, prepares complete meals several times a week, cleans, and does laundry. She goes outside two to three times a week, walks, uses public transportation, shops in stores and online, handles money, reads, watches television, uses her computer, attends church, and communicates on the telephone and computer four to five times a week.

AR 22.

13 Additionally, the ALJ considered, but did not credit, Barnes’s statements “that the

[plaintiff] is unable to concentrate for long periods of time, [ ] loses her train of thought, and

[that] her ability to stay awake ha[d] been decreasing.” AR 23. The ALJ reasoned that the

plaintiff’s “activities [ ] of preparing complete meals, reading, writing, playing cards and

computer games, and watching television all require the ability to maintain concentration for the

duration of those activities.” AR 24.

As to the medical opinion evidence in the record, the ALJ “g[ave] [Dr. Nicholas’s and

Dr. McMorris’s] opinions great weight, because th[o]se medical doctors reviewed the

[plaintiff’s] medical records, and they have experience relating impairments to limitations.” AR

23. The ALJ also concluded that “the evidence regarding the [plaintiff’s] level of functioning is

consistent with the[ir] opinions, and the[] opinions are consistent with the evidence at the hearing

level.” AR 23 (citation omitted). By contrast, she assigned Nurse Worby’s opinion “very little

weight” for several reasons, including that Nurse Worby “is not an acceptable medical source,”

“her opinion concerning the claimant’s limitations is grossly inconsistent with the evidence of

record, including the claimant’s acknowledged activities and level of functioning,” and her

“opinion concerning the extent of limitations on sitting and reported number of sleep attacks are

not consistent with either the medical record or any statement regarding the claimant’s activities

of daily living.” AR 24.

Finally, at step four, the ALJ concluded that the plaintiff was “capable of performing

[her] past relevant work as a customer service representative and quality assurance agent.”

AR 24. In reaching this conclusion, the ALJ found that, “[i]n comparing the [plaintiff’s] residual

functional capacity with the physical and mental demands of this work, . . . the [plaintiff] [wa]s

able to perform [the work] as actually and generally performed.” AR 25. Additionally, the ALJ

14 observed that the “work does not require the performance of work-related activities precluded by

the [plaintiff’s] residual functional capacity.” AR 24. Accordingly, the ALJ concluded that the

plaintiff was not disabled. See AR 25.

On August 21, 2014, the plaintiff requested that the Appeals Council review the ALJ’s

decision; however, the Appeals Council “denied [her] request for review” on November 10,

2015. AR 1. The plaintiff then filed the instant case on January 7, 2016. See Compl. at 1. On

January 20, 2016, this Court referred the plaintiff’s case to a Magistrate Judge for full case

management. See Order at 1 (Jan. 20, 2016), ECF No. 3. Thereafter, the plaintiff filed her

motion for judgment of reversal, see Pl.’s Mot. at 1, and the defendant filed his motion for

judgment of affirmance, see Def.’s Mot. at 1.

On March 3, 2017, the Magistrate Judge issued her Report assessing the parties’ motions.

See R & R at 1. In her Report, the Magistrate Judge found that “[t]he ALJ’s [residual functional

capacity] determination was supported by substantial evidence,” id. at 6, because, inter alia,

“there was no significant evidentiary gap in the administrative record” and the ALJ “properly

evaluated and discredited [the] [p]laintiff’s allegations of daytime ‘sleep attacks’ and her need

for oxygen,” id. at 11. Accordingly, the Magistrate Judge recommended that this Court deny the

plaintiff’s motion and grant the defendant’s motion. See id. at 12. On April 15, 2017, the

plaintiff filed her objections to the Magistrate Judge’s Report, see Pl.’s Objs. at 1, which are the

subject of this Memorandum Opinion.

II. STANDARDS OF REVIEW

A. Objections to Report and Recommendation

Federal Rule of Civil Procedure 72(b) governs the Court’s resolution of objections to a

magistrate judge’s report and recommendation on dispositive motions. The Rule provides that

15 the Court “must determine de novo any part of the magistrate judge’s disposition that has been

properly objected to. The [Court] may accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.

Civ. P. 72(b)(3). In their objections, the parties may not present new issues or arguments to the

Court; rather, “only those issues that the parties have raised in their objections to the Magistrate

Judge’s report will be reviewed by this [C]ourt. . . . Furthermore, objecting to only certain

portions of the Magistrate Judge’s report ‘does not preserve all the objections one may have.’”

Aikens v. Shalala,

, 19–20 (D.D.C. 1997) (citations omitted). And, “when a

party makes conclusory or general objections, or simply reiterates his original arguments, the

Court reviews the [r]eport and [r]ecommendation only for clear error.” M.O. v. District of

Columbia,

(D.D.C. 2013) (Walton, J.) (citation and internal quotation

marks omitted).

B. The Commissioner’s Disability Determination

Under

(g), a court reviewing a benefits determination by the

Commissioner is “confined to determining whether the [Commissioner’s] decision . . . [was]

supported by substantial evidence in the record.” Brown v. Bowen,

(D.C. Cir.

1986). “Substantial-evidence review is highly deferential to the agency fact-finder.” Rossello ex

rel. Rossello v. Astrue,

(D.C. Cir. 2008) (citation omitted). With respect to

the Commissioner’s factual determinations, the “substantial evidence” requirement mandates that

the Commissioner’s findings be supported by “such relevant evidence as a reasonable mind

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

(1971) (citation and internal quotation marks omitted). The standard requires “more than a

scintilla, but less than a preponderance of the evidence.” Evans Fin. Corp. v. Dir., Office of

16 Workers’ Comp. Programs,

(D.C. Cir. 1998) (citation and internal quotation

marks omitted). With respect to the Commissioner’s legal rulings, the reviewing court must

uphold the Commissioner’s legal “determination if it . . . is not tainted by an error of law.”

Smith v. Bowen,

(D.C. Cir. 1987). The “[C]ourt shall review only the

question of conformity” by the Commissioner to the SSA’s regulations as well as “the validity of

such regulations.”

(g). The Court’s review “‘calls for careful scrutiny of the

entire record’ to determine whether the [Commissioner], acting through the ALJ, ‘has analyzed

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

exhibits.’” Simms v. Sullivan,

(D.C. Cir. 1989) (citations omitted).

However, the Court may only consider the grounds proffered by the agency in its decision, as

post hoc rationalizations by an agency will not suffice. See Butler,

n.5. And,

the Court “may not reweigh the evidence presented to it[,] . . . [or] replace the [Commissioner’s]

judgment concerning the weight and validity of the evidence with its own.” Turner v. Colvin,

(D.D.C. 2013) (alterations in original) (quoting Davis v. Heckler,

(D.D.C. 1983)).

III. ANALYSIS

The plaintiff raises three objections to the ALJ’s decision and the Magistrate Judge’s

Report. First, she argues that the ALJ inadequately considered the plaintiff’s medical evidence

submitted after June 2012 (the “post-June 2012 medical evidence”) by “us[ing] h[er] own lay

judgment” to assess that evidence. See Pl.’s Objs. at 4 (citation omitted). Second, she argues

that “the ALJ failed to perform a function by function analysis of the frequency and duration of

[the plaintiff’s] sleep attacks and her need for daytime oxygen.” Id. at 8. Third, she argues that

“the ALJ erred by relying on [ ] stale non-examining medical opinions from [ ] physician[s] who

17 had only a small fraction of her medical records to [ ] review,” id. at 4 (citation omitted),

referring to the opinions of state agency consultants Dr. Nicholas and Dr. McMorris. The Court

will address each argument in turn.

A. The ALJ’s “Lay Judgment” Analysis of the Post-June 2012 Medical Evidence

The plaintiff argues that the ALJ erred by “us[ing] h[er] own lay judgment to” evaluate

the post-June 2012 medical evidence, id. at 4 (citation omitted), because an ALJ cannot “review

raw medical data without the assistance of any medical expert,” id. at 5; see Pl.’s Mem. at 24

(arguing that the ALJ had “an affirmative obligation to obtain medical opinion evidence

regarding” the post-June 2012 medical evidence). The defendant responds that “the ALJ’s duty

to obtain an updated medical opinion was not triggered in this case because the ALJ had all the

information necessary to make a disability determination and the ALJ did not find that [Nurse]

Worby’s [post-June 2012] treatment notes would change the state agency doctors’ findings.”

Def.’s Resp. at 2 (citations omitted).

The Court must reject the plaintiff’s argument that the ALJ improperly considered the

post-June 2012 medical evidence by evaluating it herself rather than obtaining a medical opinion

regarding it. The SSA’s regulations expressly require ALJs to evaluate “all the relevant medical

and other evidence” in making their residual functional capacity assessment,

(e), “including [a claimant’s] medical history[] [and] the medical signs and laboratory

findings,”

§ 404.1529(a). The plaintiff does not identify, nor is the Court able to locate, any

regulation requiring that an ALJ obtain a medical opinion regarding such evidence. See

Goodman v. Colvin,

, 105–06 (D.D.C. 2017) (“[T]here is ‘no requirement that

an ALJ must always receive an updated report from the State medical experts whenever new

medical evidence is available.’” (quoting Wilson v. Astrue,

(3d Cir.

18 2009))). Rather, the regulations provide only that certain “[s]ituations [ ] may require [an ALJ to

obtain] a consultative examination,”

.1519a(b) (emphasis added), specifically,

“to resolve an inconsistency in the evidence[] or when the evidence as a whole is insufficient to

allow . . . a determination or decision on [the plaintiff’s] claim,” id.; see

(explaining that

“needed medical evidence” may include “clinical findings, laboratory tests, a diagnosis, or

prognosis”), and the plaintiff has not made a specific showing that such circumstances are

present in this case, see Pl.’s Objs. at 5 (asserting only that, as a general matter, “non-doctors

[cannot] review raw medical data without the assistance of any medical expert”); see also Turner

v. Astrue,

(D.D.C. 2010) (rejecting the plaintiff’s argument that the ALJ

“failed to adequately develop the administrative record” by not obtaining additional medical

opinion evidence because the plaintiff did “not argue that there [we]re any missing records or

other relevant evidence that was not presented to the ALJ” and did not object to the record in the

administrative proceedings); cf. Lauer v. Apfel,

(8th Cir. 2001) (concluding

that an ALJ should have obtained “professional assistance” because evaluation of a claimant’s

psychological impairments “was impossible without first obtaining [and interpreting] the results

of three standardized psychological tests”). Thus, the Court cannot conclude that the ALJ’s

evaluation of the post-June 2012 medical evidence was improper simply because the ALJ did not

obtain a medical opinion evaluating that evidence.

The plaintiff cites various decisions for the proposition that “the ‘substantial evidence’

standard . . . requires that the ALJ’s [residual functional capacity] . . . be based more or less on

some compelling piece of medical opinion evidence.” Pl.’s Objs. at 5; see citing Pl.’s Mem. at

21–23 (collecting cases). However, these cases do not establish such a broad proposition.

Rather, several of the cases cited conclude that medical opinion evidence is required only in

19 specific circumstances not demonstrated by the plaintiff here, such as to clarify the content of a

“remarkably vague” medical opinion. See, e.g., Selian v. Astrue,

(2d Cir.

2013). And, to the extent that these opinions suggest that a medical opinion is always required to

relate “medical findings in the record . . . to specific residual functional capabilities,” Rosado v.

Sec’y of Health & Human Servs.,

(1st Cir. 1986), none of these decisions is

controlling authority, and, as the plaintiff acknowledges, “there is significant disagreement”

among courts on whether and when medical opinions are required, Pl.’s Mem. at 24; see, e.g.,

Felton-Miller v. Astrue,

, 230–31 (4th Cir. 2011) (medical opinion evidence

never required).

Thus, because the regulations do not expressly require an ALJ always to obtain a medical

opinion, and because the plaintiff has not made a specific showing that the post-June 2012

medical evidence required an opinion by a medical source, the Court cannot conclude that the

ALJ erred simply by failing to obtain a medical opinion regarding the post-June 2012 medical

evidence.

B. The ALJ’s Function-by-Function Analysis

The plaintiff next argues that the ALJ erred by “fail[ing] to perform a function by

function analysis of the frequency and duration of [the plaintiff’s] sleep attacks and her need for

daytime oxygen.” Pl.’s Objs. at 8. The defendant responds that the ALJ “properly evaluated”

the evidence regarding the plaintiff’s alleged sleep attacks and oxygen use and that “[t]he

evidence is consistent with the [ALJ’s] [residual functional capacity] assessment for a range of

sedentary work[][ ] that is performed primarily while seated.” Def.’s Resp. at 4. The Court will

address the plaintiff’s alleged daytime oxygen use and sleep attacks in turn.

20 1. Daytime Oxygen Use

The plaintiff argues that the “[t]he ALJ’s failure to make any findings with regards to

[her] need for supplemental daytime oxygen[] and failure to obtain any vocational evidence

regarding that need for daytime oxygen requires remand.” Pl.’s Mem. at 33–34. Additionally,

the plaintiff challenges the Magistrate Judge’s conclusion “that because the ALJ generally found

[the plaintiff] to be less than fully credible, the ALJ must have concluded that she did not need

daytime oxygen,” arguing that “[t]his [conclusion] amounts to post hoc speculation [because] the

ALJ never connected the dots between h[er] credibility finding generally[] and [the] [p]laintiff’s

specific need for daytime oxygen.” Pl.’s Objs. at 10. The defendant responds that “[t]he ALJ

properly discredited [the] [p]laintiff’s allegation with respect to her need for oxygen” because

she “thoroughly considered [the] [p]laintiff’s use of oxygen and cited [Nurse] Worby’s medical

records, which contradicted [the] [p]laintiff’s hearing testimony that she used oxygen every day,

all day, for the past two years.” Def.’s Resp. at 4 (internal citations omitted). The defendant

further contends that records indicating that the plaintiff “continued to smoke and an October

2013 medical record show[ing] that [the plaintiff] could walk on flat surfaces without oxygen

after she lost [weight] . . . corroborated the ALJ’s decision that [the] [p]laintiff’s use of oxygen

did not show an inability to work for no less than [twelve] consecutive months.”

(internal

citations omitted).

Even assuming the plaintiff is correct that the ALJ erred by not expressly including in her

residual functional capacity assessment any limitations related to the plaintiff’s alleged daytime

oxygen use, the Court must find that any such error was harmless. See Mitchell v. Berryhill,

(D.D.C. 2017) (“When the Commissioner’s decision evinces legal

error, . . . the court should nonetheless affirm if the error was harmless.”). As already explained,

21 it is the plaintiff’s burden to prove at step four that her impairments prevent her from performing

her past relevant work. See Butler,

. Here, the plaintiff does not provide, and the

record does not appear to reflect, any evidence demonstrating that the plaintiff’s daytime oxygen

use would prevent her from performing her past relevant work as a customer service

representative or quality assurance agent. See AR 24. Notably, the plaintiff did not solicit any

testimony from the impartial vocational expert establishing that her daytime oxygen use would

limit her ability to perform the physical functions the ALJ identified as necessary for the

plaintiff’s past relevant work. See AR 59–60; see also AR 21 (identifying the functions the

plaintiff must perform as “lifting up to [ten] pounds occasionally[;] standing or walking

approximately two hours[;] sitting approximately six hours in an eight hour work day;

[unlimited] pushing and pulling . . . except as shown for lifting and carrying; . . . frequently

balancing, [and] occasionally climbing ramps and stairs, stooping, crouching, and kneeling”).

Nor did she provide any other evidence demonstrating that her daytime oxygen use would

prevent her from performing these functions. Indeed, the plaintiff’s testimony before the ALJ

suggests that her oxygen use imposed only minimal restrictions on her mobility. See AR 52

(testifying that she carries a portable oxygen tank that is “not very” heavy and weighs “maybe

seven pounds”). Moreover, the plaintiff did not identify any other functions required by her past

relevant work that her oxygen use would prevent her from performing, and it is not otherwise

apparent to the Court that her oxygen use would prevent her from performing these functions.

See AR 40 (testifying that her customer service representative position required her to “answer[]

the phone, talk[] to the customers, sometimes . . . train[] other representatives” and “[t]rouble

shoot[] the [ ] customer[s’] problems”); AR 41 (testifying that her quality assurance agent

position required her to “listen[] to [customer service] representatives[’] phone calls over a

22 device and grade[] their phone calls, ha[ve] conferences with the representatives about their

scores, [and] . . . train[] them”).

Thus, the plaintiff has not demonstrated that her daytime oxygen use prevents her from

performing the requirements of her past relevant work, and accordingly, any failure by the ALJ

to incorporate limitations regarding the plaintiff’s daytime oxygen use into the plaintiff’s residual

functional capacity was harmless. See Barlow v. Comm’r of Soc. Sec., Civ. Action No. 17-756,

, at *7–8 (S.D. Ohio May 29, 2018), report and recommendation adopted, Civ.

Action No. 17- 756,

(S.D. Ohio June 15, 2018) (concluding that “even if the

ALJ erred in failing to accurately capture all of [the] [p]laintiff’s visual limitations . . . , any such

error was harmless” because the plaintiff “fail[ed] to explain how his visual impairments

prevent[ed] him from performing his past [relevant] work”); see also Gallegos v. Astrue, Civ.

Action No. 12- 0038-RFC,

, at *10 (W.D. Tex. Mar. 25, 2013) (concluding

that “[t]o the extent the ALJ erred by not including the limitations he found to be caused by [the]

[p]laintiff’s mental impairment in his statement of [the] [p]laintiff's [residual functional

capacity], such error [was] harmless” because the “[p]laintiff ha[d] not demonstrated that . . . a

more detailed discussion of her depression or an explicit inclusion of accommodations supported

by the ALJ’s findings would exclude [the p]laintiff’s past relevant work and shift the burden to

the Commissioner at step five”).

The plaintiff’s counterarguments are unpersuasive. She relies on the Western District of

Virginia’s decision in Barnwell v. Colvin to support her position that the ALJ’s failure to include

in her residual functional capacity limitations regarding her daytime oxygen use is reversible

error. See Pl.’s Mem. at 34 (citing Barnwell v. Colvin, Civ. Action No. 13-19,

, at *17 (W.D. Va. 2014)). In that case, the court concluded that the ALJ’s failure to

23 “include[] an accommodation for oxygen use in the [residual functional capacity] determination”

was reversible error “[b]ecause there [wa]s no evidentiary basis in th[e] record to support a

finding that a person requiring supplemental oxygen could perform the jobs” the ALJ found the

plaintiff could perform. Barnwell,

, at *17. However, this reasoning

misstates the parties’ burdens at step four. It is not the ALJ’s burden at step four to demonstrate

that the plaintiff can perform her past relevant work despite her limitations; rather, it is the

plaintiff’s burden to demonstrate that she cannot perform her past relevant work given her

limitations. As already explained, the plaintiff has not satisfied that burden here. Moreover, to

the extent that the plaintiff now seeks to introduce the testimony of vocational experts in other

cases cited by the court in Barnwell, see

, at *17, the Court may not consider

evidence outside of the administrative record developed below, see Jones v. Soc. Sec. Admin.,

Civ. Action No. 16-2290 (CKK),

, at *4 (D.D.C. Nov. 7, 2018) (“[T]he

Court’s review is confined to the administrative record that was before the ALJ at the time of the

decision[.]”). In any event, as Barnwell recognizes, there exists “some disagreement among

vocational experts on the question.”

, at *17. Thus, Barnwell does not

support the plaintiff’s position.

In the absence of any evidence demonstrating that the plaintiff’s daytime oxygen use

prevents her from performing the functions required for her past relevant work, the Court cannot

conclude that the ALJ’s incorporation of the plaintiff’s daytime oxygen use into the plaintiff’s

residual functional capacity would have changed the ALJ’s conclusion at step four that the

plaintiff is able to perform her past relevant work. Thus, the Court must conclude that any error

committed by the ALJ with respect to the plaintiff’s daytime oxygen use was harmless.

24 2. Sleep Attacks

The plaintiff argues that the ALJ should have “made [ ] specific [residual functional

capacity] findings or conclusions about” her sleep attacks, particularly, findings regarding the

“frequency and duration” of the sleep attacks, Pl.’s Objs. at 8, as well as “what limitations would

be imposed during a sleep attack,” Pl.’s Resp. at 4; see Pl.’s Mem. at 33 (“[T]he ALJ’s mere

finding that [the plaintiff] did not suffer sleep attacks at the frequency and duration suggested by

[Nurse] Worby was insufficient to enable meaningful review of her decision and requires

remand.”). She further argues that the Magistrate Judge’s conclusion that “[t]he ALJ was not

required to evaluate [the] [p]laintiff’s sleep attacks because they were unsupported by objective

evidence . . . is a[n] [impermissible] post hoc rationalization.” Pl.’s Objs. at 8. The defendant

responds that the ALJ adequately “discussed the evidence of [the] [p]laintiff’s sleep apnea,”

including by “not[ing] the sparse complaints of sleep apnea, . . . that [the] [p]laintiff could ‘sleep

without difficulty’ at an August 2013 session” with Nurse Worby, and that Nurse “Worby’s

opinion about the frequency of [the] [p]laintiff’s ‘sleep attacks’ was inconsistent with the

record.” Def.’s Resp. at 3; see

(“Despite Nurse Worby’s opinion that [the] [p]laintiff had

four to five ‘sleep attacks’ per day, the records did not support such severity.” (internal citations

omitted)).

The Court must agree with the plaintiff that the ALJ did not adequately address the

plaintiff’s allegations regarding her “sleep attacks” or her inability to stay awake. Although the

ALJ addressed and assigned “very little weight” to Nurse Worby’s opinion regarding the

plaintiff’s alleged sleep attacks, see AR 24, and the plaintiff does not directly challenge the

ALJ’s assessment of what weight to assign that opinion, see Pl.’s Objs. at 8 (only challenging the

ALJ’s reliance on the state agency consultants’ opinions); Pl.’s Mem. at 19, 33 (acknowledging

25 the ALJ’s decision to assign very little weight to Nurse Worby’s opinion but not explicitly

challenging it), the ALJ did not adequately address the plaintiff’s remaining evidence of her

sleep attacks, namely, the plaintiff’s and Barnes’s statements regarding the plaintiff’s inability

“to stay awake for extended periods of time,” e.g., AR 199. With respect to the plaintiff’s

statements regarding her inability to stay awake, the ALJ did not explicitly address these

statements, but instead only generally found that all of the plaintiff’s “statements concerning the

intensity, persistence[,] and limiting effects of [her] symptoms [we]re not entirely credible.” AR

21. As already explained, the ALJ concluded that “[s]everal elements in the record call[ed] into

question the credibility of the [plaintiff’s] allegations,” namely, that the plaintiff “testified that

she applied for disability when she began using oxygen, because that is what everyone told her

she was supposed to do,” that the plaintiff “ha[d] not been compliant with her treatment,” AR 21,

and that “her activities of daily living [went] beyond limitations that preclude work,” AR 22.

Additionally, with respect to Barnes’s statements “that the [plaintiff] is unable to concentrate for

long periods of time, [that] she loses her train of thought, and [that] her ability to stay awake has

been decreasing,” AR 23, the ALJ dismissed these statements because “the [plaintiff’s] activities

[ ] of preparing complete meals, reading, writing, playing cards and computer games, and

watching television all require the ability to maintain concentration for the duration of those

activities,” AR 24.

The Court cannot conclude that the evidence regarding the plaintiff’s daily activities

suffices to support the ALJ’s decision to discredit the plaintiff’s and Barnes’s statements

regarding the plaintiff’s inability to stay awake. Although an ALJ may properly consider a

claimant’s “daily activities” when evaluating her statements regarding her symptoms,

(c)(3)(i), “ALJs must be especially cautious in concluding that daily activities are

26 inconsistent with testimony about [a claimant’s symptoms], because impairments that would

unquestionably preclude work and all the pressures of a workplace environment will often be

consistent with doing more than merely resting in bed all day,” Garrison v. Colvin,

(9th Cir. 2014); see Smolen v. Chater,

, 1284 n.7 (9th Cir. 1996) (“The Social

Security Act does not require that claimants be utterly incapacitated to be eligible for

benefits[.]”). And, “[a] claimant’s participation in the activities of daily living will not rebut his

or her subjective statements of pain or impairment unless there is proof that the claimant engaged

in those activities for sustained periods of time comparable to those required to hold a sedentary

job.” Polidoro v. Apfel, No. 98 CIV. 2071 (RPP),

, at *8 (S.D.N.Y. Apr. 12,

1999) (citation omitted); see Petty v. Colvin,

, 207 (D.D.C. 2016)

(explaining that an “ALJ should assess the ‘individual’s ability to do sustained work-related

physical and mental activities in a work setting on a regular and continuing basis . . . [eight]

hours a day, for [five] days a week, or an equivalent work schedule” (emphasis added)).

Moreover, the ALJ cannot “ignore[] the limited fashion [in which] the plaintiff engages in . . .

[her] activities.” Jackson v. Barnhart,

(D.D.C. 2002).

Here, the ALJ did not consider whether the plaintiff could perform any of her daily

activities in a work setting for sustained periods of time without falling asleep, and the record

does not appear to reflect that she could. Rather, the plaintiff’s testimony at her hearing was that

she could watch television for only “[a]bout two[] [or] three” hours a day and play memory

games on the computer for “[m]aybe an hour” per day, AR 54; see AR 55 (testifying that when

on the computer, she “play[s] [memory] game[s]”), and, indeed, she testified that she would fall

“asleep” while “looking at the [television],” AR 54, and that “some days [she] c[ould not] even

play the [memory] games because [she could not] focus long enough to do what the game

27 actually want[ed] [her] to do,” AR 44. The plaintiff also represented in her Function Report that

she “often t[ook] longer to complete tasks because [she was] tired and sleepy” and could only

pay attention for “about [thirty] minutes” at a time. AR 203. Barnes confirmed many of these

limitations, stating that the plaintiff “ha[d] trouble completing task[s] because she [would] fall[]

asleep” and could pay attention for only “[thirty] min[ute]s [to] [one] hour.” AR 214. The

absence of any findings or evidence to support that the plaintiff engaged in her daily activities for

sustained periods of time seriously undermines the ALJ’s finding that the plaintiff’s daily

activities indicated a lack of credibility. See Moe v. Berryhill,

, 591–92 (9th

Cir. 2018) (concluding that “[s]ubstantial evidence d[id] not support [an] ALJ’s conclusion that

[the claimant’s] ability to complete some basic self-care activities was inconsistent with his

testimony regarding symptoms from paranoia and flashbacks”).

Additionally, “the ALJ ignored the limited fashion [in which] the plaintiff engages in

some of the activities she described.” Jackson,

. For example, although the

plaintiff represented that she “[d]ress[ed] [her] minor child, d[id] household chores, [and]

cook[ed],” she also represented that she “t[ook] frequent breaks between every task.” AR 199.

And, although the plaintiff also represented that she prepared “[c]omplete meals,” AR 200, she

claimed that she only did so three to four times per week, see AR 200, and both the plaintiff and

Barnes reported that it took the plaintiff several hours to complete a meal, see AR 200 (the

plaintiff stating that it took her “at least 2–3 hours” to prepare meals); AR 211 (Barnes stating

that it took the plaintiff “3–4 hours” to prepare meals). Moreover, the plaintiff testified that she

prepares only dinner, not breakfast or lunch, and that she “get[s] it started, [but] normally

somebody else has to finish it.” AR 47. And, although the plaintiff reported that she reads, she

testified at her administrative hearing that she no longer engaged in that activity. See AR 54–55.

28 Finally, although the plaintiff reported that she “[r]ead[,] watch[ed] [television], [and used the]

computer” “daily,” she also reported that she was “falling asleep during these activities.” AR

202. The ALJ’s apparent failure to consider this evidence of the plaintiff’s limitations provides

yet another reason to find that her decision to dismiss the plaintiff’s and Barnes’s statements is

not supported by substantial evidence. See Jackson,

(concluding that

“[t]he ALJ’s reliance on the [plaintiff’s daily] activities” in discrediting the plaintiff’s testimony

“[wa]s misplaced” because “the ALJ’s evaluation indicates that the ALJ did not consider all of

the relevant evidence in the record” regarding the plaintiff’s limitations).

The ALJ’s remaining rationales for generally rejecting the plaintiff’s statements

regarding her symptoms also do not suffice to dismiss the plaintiff’s allegations of her inability

to stay awake for sustained periods. The ALJ’s observation that “the claimant has not been

compliant with her treatment” because she, inter alia, “does not continuously use . . . her CPAP

machine daily as instructed,” AR 21, does not justify the ALJ’s credibility finding. Although an

ALJ may find a plaintiff’s

statements . . . less credible if . . . medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure[,] [ ] the adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.

SSR 96–7p,

, at *7; see

(c) (recognizing “[a]cceptable

reasons for failure to follow prescribed treatment”). As the plaintiff correctly notes, see Pl.’s

Mem. at 30, the record suggests that, in the period following the alleged onset date of the

plaintiff’s disability, the plaintiff failed to use her CPAP machine for a period of time because

she was “[un]able to get [the] correct mask” for her machine. AR 607; see AR 599 (Nurse

Worby reporting that, as of April 2013, the plaintiff “[h]a[d] been without CPAP mask [for] 29 several months, tried to reorder, never received, insurance changed, may need to order again with

new insurance”). The ALJ’s decision does not reflect that she considered this explanation.

Consequently, the ALJ’s inference that the plaintiff’s statements about her symptoms were less

credible because the plaintiff failed to use her CPAP machine was improper. See SSR 96–7p,

, at *7. Moreover, although the ALJ cited other instances of the plaintiff’s

noncompliance with her treatment, the ALJ did not connect these treatments to the plaintiff’s

sleep apnea, which the plaintiff alleged is the cause of her inability to stay awake, see AR 43

(testifying that her sleep apnea caused her “[c]onfusion, inability to concentrate, falling asleep if

[she was] still for any length of time”), and the Court declines to speculate as to whether any

such connection exists, see AR 21–22 (faulting the plaintiff for “continu[ing] to smoke

cigarettes,” which “exacerbated her pulmonary impairment,” “turn[ing] off her oxygen to

smoke,” and having a “diet . . . high in sugary foods and drinks”). Thus, the plaintiff’s

noncompliance with her treatment also fails to support the ALJ’s credibility finding as to the

plaintiff’s statements regarding her sleep apnea symptoms.

Finally, the Court cannot find that the plaintiff’s “testi[mony] that she applied for

disability when she began using oxygen, because that is what everyone told her she was

supposed to do,” AR 21, suffices to warrant dismissing her allegations regarding her inability to

stay awake. The ALJ made no effort to explain the significance of this statement to her analysis.

And, it is not apparent to the Court how the plaintiff’s perception or misperception of when and

under what circumstances it is appropriate to apply for disability benefits undermines her

allegations regarding the specific symptoms she was experiencing. See Butler, 535 F.3d at 1005

(“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

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

and reasons for that weight.” (internal quotation marks omitted)). Moreover, in any event,

rejecting a plaintiff’s claim based on a single statement by her is inconsistent with the ALJ’s

responsibility to “consider the entire case record” when “determining the credibility of the

[claimant’s] statements.” SSR 96–7p,

, at *1. Thus, the ALJ’s reliance on the

plaintiff’s statement regarding why she applied for disability benefits is insufficient to support

her conclusion.

The defendant’s counterarguments on this matter are also not persuasive. Contrary to the

defendant’s position, the ALJ did not explicitly “note[] the sparse complaints of sleep apnea” in

rejecting the plaintiff’s and Barnes’s statements regarding the plaintiff’s sleep apnea symptoms.

Def.’s Resp. at 3. Moreover, although the defendant is correct that the ALJ noted a progress note

from Nurse Worby representing that “[the] [p]laintiff [told Nurse Worby that she] could ‘sleep

without difficulty’ at an August 2013 session,”

(quoting AR 23, 618), the ALJ did so only in

her initial summary of the available objective medical evidence, see AR 23, and did not offer this

fact as a reason for her rejection of the plaintiff’s and Barnes’s statements regarding the

plaintiff’s sleep apnea symptoms. Thus, the defendant’s arguments appear to be no more than

“post hoc rationalizations” of the ALJ’s decision, which “will not suffice.” Clark v. Astrue,

(D.D.C. 2011) (Walton, J.) (“[A] court may only consider the grounds

proffered by the agency in its decision[.]”). 5 Furthermore, the ALJ’s finding that Nurse

“Worby’s opinion about the frequency of [the] [p]laintiff’s ‘sleep attacks’ was inconsistent with

the record,” Def.’s Resp. at 3, does not demonstrate that the plaintiff did not experience any sleep

5 In any event, it would be difficult to find that evidence suggesting that the plaintiff’s symptoms were controlled in one specific month could outweigh the plaintiff’s and Barnes’s statements regarding the persistence and severity of her symptoms.

31 attacks at all or any other sleep apnea symptoms. Thus, the defendant’s counterarguments do not

persuade the Court that the ALJ adequately assessed the credibility of the plaintiff’s and Barnes’s

statements regarding the plaintiff’s sleep apnea symptoms.

Additionally, the Court cannot agree with the Magistrate Judge that “[t]he ALJ properly

rejected [the] [p]laintiff’s claim of daytime ‘sleep attacks[]’ because her claim is not based on

objective medical findings.” R & R at 11. First, the ALJ did not rely on the absence of objective

medical evidence as the basis for rejecting the plaintiff’s allegations regarding the plaintiff’s

sleep apnea symptoms, and, as already explained, the Court cannot rely on post hoc

rationalizations not relied upon by the ALJ below. See Clark,

. Second,

even if the ALJ had relied on this observation, it would not suffice to support her conclusion

because it is well established that an “ALJ may not reject [a] claimant’s statements solely

because they are not substantiated by objective medical evidence; rather, [s]he ‘must consider the

entire case record.’” Troy v. Colvin,

(D.D.C. 2017) (quoting Barnhart,

); see SSR 96–7p,

, at *1 (“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 not be disregarded solely because they are not substantiated by

objective medical evidence.”). Therefore, the Magistrate Judge’s reasoning does not persuade

the Court to find that the ALJ properly rejected the plaintiff’s evidence of sleep apnea symptoms

either.

Thus, although “[t]he credibility determination is solely within the realm of the ALJ,”

Contreras v. Comm’r of Soc. Sec.,

(D.D.C. 2017) (quoting Grant v.

Astrue,

(D.D.C. 2012)), “[t]his does not[] [ ] give the ALJ unlimited

discretion in making such a determination,”

and this Court must “intercede where an ALJ

32 fails to articulate a rational explanation for his or her finding,”

(quoting Grant,

). Here, for the reasons explained above, the ALJ failed to support her credibility

findings with an adequate explanation and, thus, her credibility findings were error.

Having concluded that the ALJ erred by discrediting the plaintiff’s and Barnes’s

statements regarding the plaintiff’s sleep attacks and inability stay awake, the Court must

consider whether the ALJ’s error was harmless, see, e.g., Mitchell,

, which

the Court finds it was not. Here, there exists evidence in the record that could support a finding

that the plaintiff’s alleged inability to stay awake would preclude her from performing her past

relevant work. Specifically, the impartial vocational expert testified at the plaintiff’s hearing that

an “individual who is off task for [fifteen] to [eighteen] percent of [an eight-hour] workday . . .

would not be able to maintain [any] position” in the national economy. AR 59. And, the

plaintiff’s and Barnes’s statements that the plaintiff could not focus on a task for more than half

an hour to an hour at a time and was often unable to stay awake, if credited by the ALJ upon

remand, suggest that the plaintiff would be off task for more than the maximum allowable time

of fifteen to eighteen percent—i.e., one hour and twelve minutes to one hour and twenty-six

minutes—in an eight-hour workday. Thus, an ALJ could reasonably conclude based on this

evidence that the plaintiff’s sleep attacks and inability to stay awake precluded her from

performing her past relevant work. See Moe, 731 F. App’x at 592 (“The ALJ’s error in relying

on several invalid reasons to discredit [the claimant’s] testimony was not harmless because it was

not inconsequential to the nondisability determination.”); see also Porter v. Colvin,

, 136–37 (D.D.C. 2013) (“The ALJ characterizes the medical record in a way that makes

[the] [p]laintiff's statements appear inconsistent, leading to an adverse credibility finding that

directly influences her [residual functional capacity]. Because the totality of the record casts her

33 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.”).

Moreover, the Court is unable to locate any evidence in the record demonstrating that the

plaintiff could perform her past relevant work despite the evidence regarding her inability to stay

awake. Notably, the state agency consultants’ opinions did not explicitly address the plaintiff’s

alleged inability to stay awake. See AR 73–75 (assessing the plaintiff’s exertional, postural, and

environmental limitations but not reporting any mental limitations); AR 82–84 (same).

Additionally, the plaintiff’s daily activities do not adequately support the ALJ’s conclusion that

the plaintiff could perform her past relevant work, as “the ability to engage in activities such as

cooking, cleaning, and hobbies, does not constitute substantial evidence of the ability to engage

in substantial gainful activity.” Brosnahan v. Barnhart,

(8th Cir. 2003). This

is especially so here, given that the ALJ “ignored the limited fashion [in which] the plaintiff

engages in . . . [her] activities,” Jackson,

, and also given that there exists

little to no evidence that the plaintiff’s activities are “easily transferable to a work environment

where it might be impossible to rest periodically,” Smolen,

n.7 (9th Cir. 1996);

see Petty, 204 F. Supp. 3d at 207 (“Many employers require a certain output level from their

employees over a given amount of time, and an individual with deficiencies in [concentration,

persistence, or] pace might be able to perform simple tasks, but not over an extended period of

time.” (alterations in original) (quoting Ramirez v. Barnhart,

(3d Cir. 2004))).

Finally, the plaintiff’s failures to follow her treatment protocol also do not support the ALJ’s

conclusion because “[f]ailure to follow a prescribed treatment plan is a basis for denying a

claimant benefits [only] when following the treatment plan would restore the claimant’s ability

to work.” Jackson,

(citing

); see 20 C.F.R.

34 § 404.1530 (“In order to get benefits, you must follow treatment prescribed by your medical

doctor(s) if th[e] treatment is expected to restore your ability to work.” (emphasis added)). The

ALJ did not make any findings regarding the extent to which the plaintiff’s treatment would

alleviate her sleep apnea symptoms, and she ignored evidence that the plaintiff was unable to

obtain the correct mask for her CPAP machine, see AR 607, and the plaintiff’s testimony that

some of her treatment actually exacerbated her symptoms, see AR 45 (the plaintiff testifying that

her diabetic neuropathy medicine “does[] [not] help the sleepiness because it makes [her] even

more sleepy”). Thus, the Court cannot conclude that other evidence in the record clearly

demonstrates that the plaintiff could perform her past relevant work notwithstanding her sleep

apnea symptoms, such that the ALJ’s error in discrediting the plaintiff’s and Barnes’s statements

regarding those symptoms was harmless. See Payne v. Barnhart,

(D.D.C. 2010) (reversing the ALJ’s decision because the ALJ “fail[ed] to address [the plaintiff’s]

inability to concentrate and maintain attention for extended periods” and “the [c]ourt s[aw]

nothing in the record to support the ALJ’s determination that, given [the plaintiff’s] inability to

concentrate, he would be mentally capable of performing the duties of [his past relevant work as]

a security guard”); cf. Barlow,

, at *7–8 (concluding that the ALJ’s “fail[ure]

to accurately capture all of [the] [p]laintiff’s visual limitations . . . was harmless” because the

plaintiff “performed all of his past employment notwithstanding those limitations,” and thus, “the

record ma[de] clear that [he] could perform his past jobs with his vision impairments”); Davis,

(concluding that an ALJ’s “fail[ure] to include . . . [the] [p]laintiff’s mild

limitation in concentration, persistence, or pace” in her residual functional capacity was harmless

because “the ALJ identified substantial medical and other evidence of record—including [the

plaintiff’s] completion of cosmetology school and high school and the opinions of . . . [three

35 physicians]—establishing that [the] [p]laintiff [wa]s capable of performing ‘simple, routine, and

repetitive tasks’”).

In sum, the Court concludes that the ALJ erred by failing to provide adequate reasons for

her decision to discred the plaintiff’s and Barnes’s statements regarding the plaintiff’s sleep

apnea symptoms. Additionally, the Court concludes that the ALJ’s error was not harmless.

Accordingly, the Court must remand this case to the ALJ for reconsideration of the plaintiff’s

and Barnes’s statements regarding the plaintiff’s sleep apnea symptoms.

C. The ALJ’s Reliance on the State Agency Consultants’ Opinions

The plaintiff’s final argument is that the ALJ’s reliance on the state agency consultants’

opinions constituted error for three reasons: (1) the opinions were rendered by “non-examining”

physicians and “not based on a description of [the] [p]laintiff’s limitations by any examining

physician,” Pl.’s Objs. at 8; (2) the opinions were “stale” because the consultants “had only a

small fraction of [the plaintiff’s pre-June 2012] records to [ ] review,” id. at 4; and (3) “the ALJ’s

boilerplate statement that the [ ] opinions were consistent with the record[]” is “insufficient for

purposes of judicial review,” id. at 6, given that the opinions were “inconsistent with the only

other [medical] opinion of record,” i.e., Nurse Worby’s opinion, id. at 8. The defendant responds

that “[t]he ALJ’s reliance on the opinion of state [agency] medical consultants was proper” and

that “[t]he ALJ thoroughly reviewed and discussed the relevant evidence, including evidence that

was submitted after the state agency medical opinions.” Def.’s Resp. at 2.

First, the Court must reject the plaintiff’s position that the ALJ’s reliance on the state

agency consultants’ opinions was improper because the opinions were rendered by non-

examining physicians or because the consultants “w[ere] not provided a description of [the]

[claimant’s] limitations by examining physicians.” Pl.’s Objs. at 6. The plaintiff cites no

36 authority as support for the proposition that an ALJ may not rely on the opinion of a non-

examining physician, and the regulations expressly contemplate the ALJ’s reliance on opinions

provided by nonexamining state agency medical consultants. See

(c)

(contemplating that an ALJ may consult residual functional capacity assessments “made by . . .

State agency medical . . . consultants . . . based on their review of the evidence in the case

record”);

§ 1527(c)(3) (providing instructions for the evaluation of opinions from

“nonexamining sources”). Moreover, the plaintiff also fails to cite any authority for the position

that a non-examining physician must receive a description of the plaintiff’s limitations from

examining physicians. The case cited by the plaintiff as support for her position, Grant v.

Astrue, see Pl.’s Objs. at 6, only acknowledges the Fourth Circuit’s conclusion in Smith v.

Schweiker that “the medical opinions of non-examining physicians who were not provided a

description of a claimant’s limitations by an examining medical source, and whose opinions are

contradicted by all of the other evidence in the record, could not be given substantial weight,”

Grant,

(emphasis added) (citing Smith v. Schweiker,

(4th Cir. 1986)). The plaintiff does not claim that the state agency consultants’ opinions were

“contradicted by all of the other evidence in the record,”

but only that they were contradicted

by Nurse Worby’s opinion, see Pl.’s Objs. at 8. Moreover, in Smith, the Fourth Circuit based its

conclusion on the specific circumstances of that case, including the fact that “an opinion or

diagnosis as to [the] impairment [at issue] . . . [wa]s not readily made without the physician

personally examining or observing the patient,” Smith,

. Here, the plaintiff has

made no effort to demonstrate why the state agency consultants could not properly assess her

specific impairments without examining her. In any event, the state agency consultants received

at least some progress notes from Nurse Worby, see, e.g., AR 71, who examined the plaintiff,

37 and thus, these consultants were to some extent “provided a description of [the] claimant’s

limitations by an examining medical source,” Grant,

. Thus, the Court

must reject the plaintiff’s argument that the state agency consultants’ opinions were invalid

simply because the consultants did not examine the plaintiff or review all of Nurse Worby’s

records.

Second, the Court must reject the plaintiff’s position that the ALJ’s reliance on the state

agency consultants’ opinions was improper because the opinions were “stale.” Although the

plaintiff appears to correctly represent that the state agency consultants did not consider the post-

June 2012 evidence, see AR 71–72 (indicating that Dr. Nicholas considered only Nurse Worby’s

treatment records received by the SSA prior to August 14, 2012); AR 79–80 (indicating that Dr.

McMorris considered only Nurse Worby’s treatment records received by the SSA prior to

August 14, 2012, and Washington Hospital Center records received on August 21, 2012, and

December 7, 2012); AR 578–650 (Nurse Worby’s progress notes dated June 4, 2012, to April 17,

2014), “[n]ew medical evidence introduced into the record after a [s]tate agency consultant’s

assessment does not automatically render that assessment invalid,” Goodman v. Colvin,

(D.D.C. 2017).

However, the Court must agree with the plaintiff that the ALJ did not adequately explain

her reliance on the state agency consultants’ opinions given the existence of evidence in the

record contradicting those opinions, including post-June 2012 evidence. As already explained,

the ALJ gave “great weight” to the state agency consultants’ opinions because they were

“consistent” with record evidence reflecting the plaintiff’s “level of functioning” and “with the

evidence at the hearing level.” AR 23. However, the consultants’ conclusions that the plaintiff

could sit with normal breaks for a total of six hours in an eight-hour workday, see, e.g., AR 74,

38 are inconsistent with the plaintiff’s and Barnes’s statements that the plaintiff was “unable to stay

awake for long periods of time,” AR 199, as well as information contained in the post-June 2012

evidence supporting those statements, see, e.g., AR 607 (noting that the plaintiff reported

“nodding off during conversations”). Because the ALJ improperly rejected the plaintiff’s and

Barnes’s statements and did not explicitly address other evidence in the record that is

inconsistent with the state agency consultants’ opinions, the Court must conclude that the ALJ

inadequately explained her reliance on the state agency consultants’ opinions. See Charles v.

Astrue,

(D.D.C. 2012) (Walton, J.) (“The adjudicator must [ ] explain

how any material inconsistencies or ambiguities in the evidence in the case record were

considered and resolved.”).

Moreover, the Court cannot find that the ALJ’s failure to adequately explain her reliance

on the state agency consultants’ opinions constitutes harmless error, as the error frustrates the

ability of the Court to conduct meaningful review and determine whether the ALJ’s decision is

supported by substantial evidence.” Carroll v. Berryhill, Civ. Action No. 16 -218,

, at *3 (W.D.N.C. Apr. 23, 2018) (concluding that an “ALJ’s failure to provide a

sufficient explanation [wa]s not harmless error”); see Turner,

(“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 in his written decision to explain sufficiently the weight he

has given to certain probative items of evidence.”). Thus, the ALJ’s failure to adequately explain

her reliance on the state agency consultants’ opinions represents an additional reason for the

Court to reverse the ALJ’s decision in this case.

39 IV. CONCLUSION

For the foregoing reasons, the Court concludes that the ALJ committed reversible error

by discrediting the plaintiff’s and Barnes’s statements regarding the plaintiff’s inability to stay

awake and by failing to adequately address and resolve inconsistencies between the state agency

consultants’ opinions and other evidence in the record. However, the Court rejects the plaintiff’s

remaining challenges to the ALJ’s decision. Thus, the Court concludes that it must grant in part

and deny in part the plaintiff’s motion for a judgment of reversal, deny the defendant’s motion

for judgment of affirmance, and remand this case to the Commissioner for further proceedings

consistent with this Memorandum Opinion. 6

SO ORDERED this 16th day of September, 2019.

REGGIE B. WALTON United States District Judge

6 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

40