UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) FLORENCE McCORMICK, ) ) Plaintiff, ) v. ) ) Case No. 18-cv-1704 (CKK) ANDREW SAUL, ) Commissioner of ) 1 the Social Security Administration, ) ) Defendant. ) ___________________________________ )

MEMORANDUM OPINION (June 25, 2021)

Pending before this Court are Plaintiff’s [11] Motion for Judgment of Reversal (Pl.’s Mot.);

Defendant’s [12/13] [Consolidated] Motion for Judgment of Affirmance and Opposition to

Plaintiff’s Motion for Judgment of Reversal (“Def.’s Mot.”); and Plaintiff’s [14] Reply to

Defendant’s Motion for Judgment of Affirmance (“Pl.’s Reply”).2 Plaintiff Florence McCormick

(“Plaintiff” or “Ms. McCormick”) requests reversal of the Decision by the Acting Commissioner

of the Social Security Administration (“SSA”) to deny Plaintiff’s application for Title II disability

and disability insurance benefits. Plaintiff alleges that the Administrative Law Judge (“ALJ”) who

issued the Decision erred insofar as she: (1) failed to give controlling weight to the opinion of

1 Pursuant to Fed. R. Civ. P. 25 (d), Andrew Saul, Commissioner of the Social Security Administration has been automatically substituted for Nancy Berryhill, Acting Commissioner of the Social Security Administration, whom the parties’ pleadings name as Defendant.

2 In issuing this Opinion and the accompanying Order, this Court has considered the parties’ motions as well as the entire Administrative Record (“AR”), ECF No. 9. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

1 Plaintiff’s treating physician; (2) made a finding that Plaintiff’s testimony was inconsistent with

the record, which was not supported by substantial evidence; (3) failed to provide substantial

evidence for her residual functional capacity (“RFC”) finding; and (4) failed to adequately develop

the record by refusing to leave the record open for additional evidence. See generally Pl.’s Mot.,

ECF No. 11, at 9-20.

Upon consideration of the pleadings, and for the reasons set forth herein, the undersigned

finds that one of Plaintiff’s four arguments – that the ALJ failed to give controlling weight to

Plaintiff’s treating physician without sufficiently explaining why – warrants remand of the

Defendant’s decision. Accordingly, the Court DENIES IN PART AND GRANTS IN PART

Plaintiff’s Motion for Judgment of Reversal, DENIES Defendant’s Motion for Judgment of

Affirmance, and REMANDS this matter to the Social Security Administration for further

proceedings solely on that issue.

I. Background

Plaintiff Florence McCormick, who resides in Washington, D.C., was 55 years old as of

her disability onset date of October 19, 2008, and 59 years old as of December 31, 2012, her date

last insured. (Administrative Record (“AR”) 236, 262.)3 She has a high school diploma, and her

work history includes working: (1) for the District of Columbia Parking Authority, primarily

placing “boots” on cars; (2) as a cleaner and receptionist for Jackson Hewitt; (3) as a cashier at

Whole Foods; (4) at Dudley Beauty College, doing administrative work and restocking shelves;

and (5) driving a transport van for Metro Access. (AR 82-84, 280-81, 304.)

3 The Court references the page numbers located at the bottom righthand corner of the administrative record. When referring to motions, the Court references the page numbers assigned by the Electronic Case Filing (“ECF”) system.

2 In November 2013, Plaintiff filed an application for Disability Insurance Benefits under

Title II of the Social Security Act (the “Act”),

, alleging disability beginning

on October 19, 2008 due to high blood pressure, kidney damage, and scoliosis. (AR 209-215, 239-

246.) The SSA denied Plaintiff’s application initially and upon reconsideration. (AR 111-12,

123.) On December 7, 2016, Plaintiff – who was represented by counsel - appeared for an

administrative hearing and testified before an ALJ. (AR 62-93.) ALJ Francine Applewhite issued

her Decision on February 13, 2017, whereby she denied Plaintiff’s application and found that Ms.

McCormick was not disabled before her date last insured of December 31, 2012 (AR 50-57.) After

the Appeals Council denied Plaintiff’s request for review, ALJ Applewhite’s Decision became the

final agency decision. Plaintiff requests judicial review in this Court under

(g).

A. Evidence Before the ALJ

The evidence before ALJ Applewhite consisted primarily of: (1) medical records spanning

from 2009 through 2014, including medical records from doctors who treated Plaintiff and reports

from state agency physicians; and (2) testimony by Plaintiff and by Dr. James M. Ryan, a

vocational expert, during the hearing held by the ALJ.

1. Plaintiff’s Medical Records

This Court has reviewed the medical records cited by the ALJ in her Decision as well as

the medical records in the Administrative Record relevant to Plaintiff’s scoliosis and kidney

disease, and those records are summarized below.4 During the relevant period between her alleged

4 The ALJ treated Plaintiff’s scoliosis and kidney disease as “severe impairments.” (AR 52.) Defendant’s summary of medical records provided page number citations to the Administrative Record. On the other hand, some of Plaintiff’s cites to the Record were difficult to follow. For example, in her Motion, ECF No. 11, at 5, Plaintiff cited to “R. at 307” in support of several allegations, but R. 307 is one page of a multi-page summary that was prepared in connection with an appeal of the denial of Plaintiff’s disability benefits. That page, in turn, references

3 disability onset of October 19, 2008 and her date last insured of December 31, 2012, Plaintiff

received primary care treatment at Congress Heights Health Center (“Congress Heights”) where

her primary care physician was Jamie Hill-Daniels, M.D.

a. Scoliosis

Plaintiff was first diagnosed with scoliosis (curvature of the spine) when she was “around

18 years old.” (AR 75.) When examined at Howard University’s Department of Radiology on

August 31, 2009, Ms. McCormick had a spine curvature of 46 degrees (AR 387.) On September

14, 2009, Ms. McCormick was seen by Dr. Hill-Daniel, and Plaintiff self-reported that she “had

to quit [her job] as it was too painful to stand up all day[.]” (AR 364.) Plaintiff was instructed to

get an MRI of her neck that week.5 (AR 364.)

Plaintiff was prescribed acetaminophen for her scoliosis at an August 25, 2011 visit with

Dr. Hill-Daniel, (AR 334), while she had previously been prescribed ibuprofen for her scoliosis.

(AR 353, 355.) On November 15, 2011 Ms. McCormick presented to Dr. Hill-Daniel and

requested a screening examination for scoliosis. (AR 330.) A November 21, 2011 radiology report

from Howard University Hospital indicated a “thoracal lumbar spine” curvature of 53 degrees, no

cervical scoliosis, and no evidence of acute fracture or subluxation. (AR 379.)

On April 11, 2013, Plaintiff reported to Dr. Hill-Daniel that she was “having more back

pain,” which was “affecting her ability to work at this point,” and she had “been less active.” (AR

600.) Plaintiff was referred to an orthopedist, Dr. Joseph O’Brien, with regard to her scoliosis.

(AR 601.) A May 7, 2013 MRI of Ms. McCormick’s thoracic spine from the United Medical

Center showed an approximately 50-degree curvature in her lower thoracic spine, with “no

exhibits such as an “Exhibit Submitted on November 22, 2010.” This Court did not undertake to cross-reference Defendant’s citations to exhibits. 5 There is no indication in the medical records that this was done.

4 significant disc bulge or disc herniations [or] central stenosis.” (AR 440.) On May 21, 2013,

Plaintiff presented to Dr. O’Brien, at the George Washington University Medical Faculty

Associates, Department of Orthopaedic Surgery, where she self-reported significant pain over the

past few years, mostly in her low to mid-back and neck, which worsened with lifting and extended

standing and improved with stretching and brief walks. (AR 459.) During that visit, Plaintiff also

reported some urinary urge incontinence. (AR 459.) Plaintiff was deemed to be “in no apparent

distress” and her [mo]od [was pleasant.” (AR 460.) No edema [swelling caused by excess fluid]

was noted, and her strength was 5/5 and she had “normal sensation on gross exam.” (AR 460.)

Imaging showed “moderate” scoliosis in the lower thoracic spine (around 50 degrees), with

“minimal degenerative disc disease” and “[n]o central stenosis or disc herniation.” (AR 460.)

Spinal x-rays showed approximately 70-degree thoracolumbar scoliosis. (AR 460). As part of her

social history, it was noted that Plaintiff’s “activities and hobbies include[d] brief walk[s], short

bike rides, reading and listening to music.” (AR 460.) “[C]onservative treatment” was prescribed,

including “physical therapy as well as the Spine Center for pain management” and a

recommendation for annual follow-ups, or more frequently if her symptoms became significantly

worse. (AR 460.)

b. Kidney Disease (including discussion of edema)

On August 20, 2009, Plaintiff presented to Dr. Hill-Daniel for a follow-up on a complaint

of leg swelling, which she stated was relieved by rest and elevating her legs. (AR 368.) Doctor

Hill-Daniel noted that Plaintiff’s extremities were without clubbing, cyanosis or edema. (AR 368.)

On March 5, 2010, Plaintiff presented to Dr. Hill-Daniel for a follow-up visit pertaining to her

chronic medical issues and to obtain a refill of her prescriptions. (AR 353.) Plaintiff requested a

work release and complained of “pain in side and not urinating as frequently as she should.” (AR

5 353.) The medical records indicate that Plaintiff’s urology was negative for stress and urge

incontinence. (AR 353.) Plaintiff received a prescription for Lasix (furosemide) for treatment of

her renal problems, and she was instructed to follow up in 3 months.6 (AR 352.) On November

5, 2010, Plaintiff visited Dr. Hill-Daniel for a follow-up on her medical conditions and to get

prescriptions refilled. (AR 344-345.) With regard to her kidney function, the doctor counseled

Plaintiff regarding a low protein diet and change in medication to try to stabilize Plaintiff’s

elevated creatine, and Plaintiff was referred to radiology and the Nephrology Clinic. (AR 345.)

On July 12, 2011, Plaintiff had a walk-in visit at Congress Heights, and she requested a

refill of medication because of the swelling in her legs, but the attending doctor noted that Plaintiff

was “taken off this secondary to abnormal kidney function tests.” (AR 339.) Furthermore, Plaintiff

had been referred for radiologic testing and nephrology in the fall, “but she never did these.” (AR

339.) Plaintiff was counseled to comply with the medical orders and to follow up in four weeks.

(AR 341.) On July 21, 2011, Plaintiff went to the emergency department at the George

Washington University Hospital, and she complained of leg swelling and flank pain. While she

was being treated there, the nurses noted that she ambulated “with a steady gait.” (AR 648, 650.)

Ms. McCormick was diagnosed with edema, but she was not given any medication because of her

kidney function issues. (AR 640-641.)7 The following day, Plaintiff visited Congress Heights as

a walk-in patient regarding her leg swelling. (AR 336.) Edema was noted in Plaintiff’s

6 At that point, Plaintiff was prescribed Norvaac and Hydrochlorothiazide for her hypertension; Claritin and Flunisolidc Solution for her allergies; Zocor for her elevated cholesterol; Ibuprofen for her scoliosis; and Amitriptyline to be taken at bedtime and Diflorasone Diacetate Cream to apply to the “affected area.” (AR 353-355.) 7 Medical records from November 2011, October 2012, and April 2013 indicate that Plaintiff was prescribed Furosemide for her edema. (AR 331, 325-326, 453.)

6 extremities, and there was a recommendation of support stockings, elevation, and a trial of a

diuretic, with a follow-up visit to be scheduled in 2-3 weeks. (AR 337-338.)

Plaintiff’s August 15, 2011 radiology examination indicated “[b]orderline small size

kidneys with evidence of mild renal disease.” (AR 385-386.) On October 5, 2012, Plaintiff visited

Dr. Hill-Daniel for a check-up, and she indicated that she wanted to get another opinion about her

kidney prognosis, so she was referred to nephrology. (AR 325-326.) On October 22, 2012, Ms.

McCormick consulted with Dr. Scott Cohen, a nephrologist, for evaluation of her chronic kidney

disease. (AR 435-437.) Plaintiff reported occasional lower back pain for the past two years, which

had become duller in nature, and she indicated that she passed a kidney stone in 2000. (AR 435.)

Plaintiff denied urinary symptoms such as dysuria or urinary urgency. (AR 435.) Dr. Cohen

opined that Plaintiff’s chronic low back pain was “[l]ikely musculoskeletal” and that she should

continue “conservative” treatment. (AR 436.) Plaintiff’s plan of care for her kidneys included

getting a renal ultrasound, following a low sodium diet, avoiding NSAIDs, and returning for

another visit in 3 months. (AR 436.) The renal ultrasound “came out normal” with no evidence of

cysts or stones. (AR 494-495.)

Plaintiff had a follow-up visit with Dr. Cohen in June 2013, where Plaintiff showed no

arthralgia, myalgia, numbness, or muscle weakness. (AR 446.) Plaintiff was advised to repeat the

chemistries to assess her renal function, maintain a low sodium diet, avoid NSAIDs, and return in

3 months. (AR 447.) Plaintiff followed up with Dr. Cohen again in September 2013, and her

medical records indicated that Plaintiff’s creatinine levels had remained stable since she was first

informed of her chronic kidney disease in approximately 2008. (AR 531.) Plaintiff denied urinary

urgency and edema and reported that she had experienced occasional lower back pain and left side

flank pain for the past 2 years. (AR 531.) Plaintiff was assessed with chronic kidney disease stage

7 3b, and she was advised to repeat the chemistries to assess her current renal function, maintain a

low sodium diet and avoid NSAIDs. (AR 533.) Ms. McCormick was also advised to return to the

renal office for a follow-up visit in 3 months. (AR 533.) Dr. Cohen noted that his review of

Plaintiff’s recent laboratory studies showed “stable moderate kidney impairment[.]” (AR 471.)

Dr. Cohen indicated subsequently, in February 2014, that Ms. McCormick’s test results from her

then-recent lab studies were “stable and continue to show chronic mildly reduced kidney function.”

(AR 520.)

2. Testimony at the Administrative Hearing

Plaintiff reported that she stopped working in December 2008 (AR 240) because of back

pain, headaches, vision problems, and swelling of her legs. (AR 78). Ms. McCormick testified

that the pain left her bedridden (AR 73, 85), but her earning records show that she continued

working into 2009. (AR 228, 230, 233.) Plaintiff testified that she was diagnosed later with kidney

disease and advised that she needed to drink up to a gallon of water a day, and she began having

incontinence in public. (AR 79, 97.)

During the relevant period, Plaintiff resided in a third floor apartment in the District of

Columbia, which required her to walk up nine steps. (AR 69-70.) Plaintiff had a driver’s license,

but she did not have a vehicle to drive. (AR 70.) In order to get medical appointments or to work,

Ms. McCormick used “medical transportation” and public transportation including the bus (the

bus stop was one block away) and the metro. (Tr. 70-71, 73.) Plaintiff testified that she would

have to stop and rest after about a half block while walking. (AR 77). Ms. McCormick indicated

further that she did no household chores; her son or neighbors would go grocery shopping for her,

(AR 74), and sometimes her pain was so bad that she would just stay in bed. (AR 78.) Plaintiff

testified that, by 2012, she could not work due to the debilitating pain. (AR 85.)

8 B. Legal Framework for Determining Disabilities

An individual must have a “disability” to qualify for disability benefits under the Social

Security Act (the “Act”). See

(a). Under the Act, a “disability” is defined as a

condition that renders the applicant unable “to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment . . . for a continuous period of not

less than 12 months.”

(d)(1)(A). The impairment must be “of such severity that

[the applicant] is not only unable to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of substantial gainful work which exists

in the national economy.”

(d)(2)(A). A claimant must support her claim of

impairment with “[o]bjective medical evidence” that is “established by medically acceptable

clinical or laboratory diagnostic techniques.”

(d)(5)(A).

The SSA has established a five-step sequential analysis for determining whether a claimant

is disabled and entitled to disability benefits. See

. At step one, the claimant

must show that she is not presently engaged in substantial gainful employment.

§

416.920(a)(4). If the answer is yes, the ALJ will find that the claimant is not disabled. Id. §

416.920(a)(4)(i). If the answer is no, the ALJ moves to step two, where the claimant must show

that she has a “severe medically determinable physical or mental impairment” or a combination of

severe impairments that meets certain duration requirements under the regulations. Id. §

416.920(a)(4)(ii). If the claimant has such impairment or impairments, the analysis will move to

step three, where the claimant must show that her impairment meets or equals an impairment listed

in the Listing of Impairments,

, Subpart P, Appendix 1 (“Listing of Impairments”).

9

§ 416.920(a)(4)(iii). If her impairment is listed, then she is conclusively presumed disabled

and the inquiry ends here. Id. § 416.920(d).

If the impairment is not listed, the ALJ continues to step four to assess the claimant’s

residual functional capacity (“RFC”) and “past relevant work.”

(a)(4)(iv). In

determining a claimant’s RFC, the ALJ must consider the tasks that can be performed by a claimant

despite any physical or mental limitations, and the ALJ will evaluate medical, physical and mental

factors; the claimant’s descriptions of impairments and limitations; relevant medical evidence; and

other relevant evidence. 20 C.F. R. §404.1545. The claimant must show that her impairment

prevents her from performing her “past relevant work.”

(a)(4)(iv). If the

claimant remains capable of doing past relevant work, the ALJ will find the claimant is not

disabled.

If the ALJ determines that the claimant is not capable of doing his past relevant

work, the ALJ’s analysis moves to step five, the final step, to assess whether there is other work

that the claimant could do, considering the claimant’s “residual functional capacity, . . . age,

education, and work experience.”

(a)(4)(v). If the ALJ determines that the

claimant is not capable of adjusting to other work, the ALJ will find that the claimant is disabled.

The claimant bears the burden of proving the first four steps, and then the burden shifts to

the Commissioner at step five to produce evidence of jobs that the claimant can perform. See

Butler v. Barnhart,

(D.C. Cir. 2004); see also Smith v. Astrue,

(D.D.C. 2013) (Kollar-Kotelly, J.). The Commissioner typically offers this evidence

through the testimony of a vocational expert responding to a hypothetical that incorporates the

claimant’s vocational factors and RFC. If the claim survives these five steps, then the claimant is

deemed disabled and qualifies for disability benefits. See C.F.R. § 404.1520(a)(4).

10 C. The ALJ’s Decision

On February 13, 2017, ALJ Francine L. Applewhite issued a decision finding that Plaintiff

was not entitled to disability benefits. (AR 50-57.) At step one, the ALJ determined that Plaintiff

had not engaged in substantial gainful activity since her alleged onset date of October 19, 2008

through her date of last insured of December 31, 2012. At step two, the ALJ found that Plaintiff

had the following severe impairments: “scoliosis and kidney disease.” (AR 52.)

At step three, the ALJ evaluated Plaintiff’s physical and mental impairments – scoliosis

and kidney disease - and determined that Plaintiff does 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. (AR 52-53.) With regard to Plaintiff’s scoliosis, the ALJ noted

that there was “no operative or pathology report of tissue biopsy, or appropriate medically

acceptable image showing spinal arachnoiditis” and “no evidence of nerve root compression . . .

or motor loss.” (AR 53.) Plaintiff was “able to ambulate effectively[.]” (AR 53.) With regard

to Plaintiff’s kidney disease, the ALJ noted that “medical evidence does not demonstrate the

required laboratory findings during a 12-month period at least 90 days apart” nor was there

“evidence of renal osteodystrophy, peripheral neuropathy, fluid overload syndrome, or

anorexia[.]” (AR 53.) Plaintiff received “minimal treatment during the period at issue and an

ultrasound . . . was noted to be normal.” (AR 53.)

Accordingly, the ALJ moved to step four, where she found that Plaintiff had the “residual

functional capacity to perform light work as defined in 20 CFR 404.1567(b),” except that she could

11 only occasionally climb ladders, ropes, scaffolds, ramps, or stairs, and stop, crouch, crawl or kneel.

(AR 53.)

At this step, the ALJ indicated that she considered Plaintiffs’ symptoms, the “extent to

which these symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence,” and opinion evidence, as required pursuant to the SSA regulations.

(AR 53.) In her analysis, the ALJ determined that while “the claimant’s medically determinable

impairments could reasonably be expected to produce [her] alleged symptoms[,]” her “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 for the reasons explained in

[her] decision.“ (AR 54.) The ALJ considered and weighed the following information: (1) the

conservative nature of the treatment rendered for Plaintiff’s scoliosis, and the opinion of the

treating source that Plaintiff’s scoliosis is very well managed with physical therapy and did not

warrant surgical intervention; (2) the medical evidence relating to kidney function tests and

medical imaging that document mild kidney disease and the minimal treatment Plaintiff received,

other than monitoring, from the alleged onset through the date last insured, as well as the normal

kidney ultrasound; (3) Plaintiff’s denial of urinary symptoms, which was contradicted by her

testimony; and (4) the fact that Plaintiff worked after the alleged onset date and reported that she

is able to go on short walks and bike rides and climb the stairs to her apartment, which

demonstrates a higher level of activity than alleged by her. (AR 53-55.) 8

Furthermore, the ALJ assigned the following weights to medical provider opinion

evidence: (1) some weight to the assessment of state agency medical consultant Dr. James Grim;

8 The ALJ noted that Plaintiff’s work in 2009 “did not rise to the presumptively disqualifying level of substantial gainful activity . . . ” (AR 54.)

12 (2) some weight (more than given to Dr. Grim) to the assessment of state agency medical

consultant Dr. Fizzeh Nelson-Desiderio; (3) some weight to the opinion of Plaintiff’s treating

physician, Dr. Jamie Hill-Daniel; and (4) little weight to the opinion of the consultative examiner,

Dr. Eugene Miknowski. (AR 55.) The ALJ accepted the testimony of the vocational expert, Dr.

James M. Ryan, who found that Plaintiff was able to perform her past relevant work as a cashier,

receptionist and office cleaner, both as actually and normally performed. (AR 56.) The ALJ

concluded that Plaintiff was not under a disability, as defined in the Social Security Act, at any

time from October 19, 2008, the alleged onset date, through December 31, 2012, the date last

insured. (AR 56.)

II. Standard of Review

The Social Security Act,

(g), permits a plaintiff to seek judicial review, in

a federal district court, of “any final decision of the Commissioner of Social Security made after a

hearing to which he was a party.” See also Contreras v. Comm’r of Social Security,

(D.D.C. 2017). This Court must uphold the Commissioner’s determination “if it is

supported by substantial evidence and is not tainted by an error of law.” Smith v. Bowen,

(D.C. Cir. 1987); see also

(g). Substantial evidence is defined as “such

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

Richardson v. Perales,

(1971) (citation omitted). The substantial evidence test

requires “more than a scintilla, but . . . something less than a preponderance of the evidence.” Fla.

Mun. Power Agency. v. FERC,

, 365–66 (D.C. Cir. 2003). A court may not re-weigh

the evidence or supplant the SSA’s judgment of the weight of the evidence with its own. Maynor

v. Heckler,

(D.D.C. 1984); Cunningham v. Colvin,

(D.D.C. 2014) (quotation omitted) (same).

13 Instead, a court must scrutinize the entire record and give “considerable deference to the

decision rendered by the ALJ and the Appeals Council.” Crawford v. Barnhart,

(D.D.C. 2008). Despite the deferential nature of the standard, courts must give the record

“careful scrutiny” to “determine whether the Secretary, 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 and internal quotation marks

omitted). An ALJ may not “merely disregard evidence which does not support his conclusion.”

Martin v. Apfel,

(D.D.C. 2000) (citation omitted). “A reviewing court should

not be left guessing as to how the ALJ evaluated probative evidence,” 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.”

(citations omitted); see Simms,

.

III. Analysis

As previously noted, Plaintiff contends that the ALJ: (1) failed to give controlling weight

to the opinion of Plaintiff’s treating physician; (2) made a finding that Plaintiff’s testimony was

inconsistent with the record, which was not supported by substantial evidence; (3) failed to provide

substantial evidence for her residual functional capacity finding; and (4) failed to adequately

develop the record by refusing to leave the record open for additional evidence. See generally

Pl.’s Mot., ECF No. 11, at 9-20. Each of these arguments will be addressed in turn.

A. The Weight Given to the Opinion of Plaintiff’s Treating Physician is Not

Sufficiently Explained

Pursuant to the “treating physician rule,” which applies to Social Security disability

benefits cases, “when a claimant’s treating physician[ ] ha[s] great familiarity with [her] condition,

[his] reports must be accorded substantial weight, [and] such an opinion by a treating physician is

14 binding on the factfinder unless contradicted by substantial evidence.” Holland v. Berryhill,

(D.D.C. 2017) (citing Butler v. Barnhart,

(D.C. Cir. 2004)

(quotation and internal quotation marks omitted)). A treating physician’s medical opinion is

entitled to “controlling weight” if it is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and not inconsistent with other substantial record evidence.

(c)(2); 416.927(c)(2); see also Butler,

(“A treating

physician’s [opinion] is binding on the fact-finder unless contradicted by substantial evidence.”)

Generally, the ALJ will also give more weight to a physician if the physician has had a longer

treatment relationship with the plaintiff, a higher frequency of examination of the plaintiff, or a

specialty in a relevant medical area. See

(c).

The ALJ “need not treat [treating physicians’ opinions] as controlling if they are

contradicted by substantial evidence and the ALJ explains why she is not following them.”

Callaway v. Berryhill,

(D.D.C. 2018) (holding that the ALJ had

substantial evidence to support a decision to afford the treating physicians’ opinion some weight,

but not controlling, because the physicians’ testimonies were divergent as to the stress levels of

the claimant and their findings conflicted with other medical evidence). Thus, where an ALJ does

not afford a treating physician’s testimony controlling weight , the ALJ must “apply a series of

factors to determine what weight should be granted to those opinions.” Porter v. Colvin,

(D.D.C. 2013). These factors are “(1) examination relationship; (2) treatment

relationship; (3) length and nature of treatment; (4) supportability of treating physician’s opinion

by medical sources; (5) consistency of the opinion with the record as a whole; (6) whether the

opinion was rendered by a specialist; and (7) other evidence brought to the attention of the ALJ.”

The ALJ need not reference each of these six factors; instead, the ALJ only needs to provide

15 “good reasons” for according less than substantial weight to the treating physician’s findings.

Turner v. Astrue,

(D.D.C. 2010) (quoting

(d)(2),

416.927 (d)(2)).

In the instant case, the ALJ considered the opinions of Drs. Hill-Daniel, Miknowski, Grim,

and Nelson-Desiderio.9 Dr. Hill-Daniel completed a medical examination report on September

14, 2009, (AR 637-6398), where he opined that Plaintiff could lift up to twenty-five pounds, but

only ten pounds frequently. (AR 638.) He indicated that Plaintiff could sit for at least two hours,

but could stand or walk for less than two hours. (AR 638) (emphasis added). Dr. Hill-Daniel noted

that Plaintiff had “lower extremity edema made worse on standing or walking for prolonged

periods of time.” (AR 637.) Dr. Hill-Daniel concluded that Plaintiff’s medical condition

prevented her from working from September 9, 2009 to December 31, 2009. (AR 638.)

Dr. Miknowski completed an Internal Medical Examination report on March 28, 2014

based upon his consultative examination of Plaintiff. (AR 483-486.) His examination revealed no

major abnormalities, with normal reflexes, negative Romberg test, and normal gait. (AR 484).

Plaintiff had no synovitis, synovial effusion, or deformities of the joints. (AR 485.) Plaintiff

retained full muscle strength and full grip strength, and she could lift ten to fifteen pounds with no

restrictions on handling objects, but she refused to attempt a range of motion examination because

she claimed it caused “unbearable pain.” (AR 485-486.) Dr. Miknowski concluded that Plaintiff

had moderate restrictions sitting; she could stand 15-20 minutes, and she could walk only two to

three blocks. (AR 485.) (emphasis added).

Dr. Grim, a state agency physician, completed a physical RFC assessment on April 2, 2014

(AR 106-108), wherein he found that Plaintiff was able to perform a range of light work, including

9 The ALJ did not assign weight to the opinions of Drs. Cohen and O’Brien.

16 lifting twenty pounds occasionally and ten pounds frequently, sitting for six hours in an eight-hour

workday, and standing or walking for four hours in an eight-hour workday, and he noted additional

postural limitations. (AR 107-108.) (emphasis added). Dr. Grim noted that Plaintiff had stage 3

renal insufficiency and scoliosis, and the MRI showed minimal degenerative disc disease but no

central stenosis, while the treating orthopedist found normal leg strength and sensation. (AR 108.)

Dr. Nelson-Desiderio, a state agency physician, completed a physical RFC assessment on

September 2, 2014, where he found that Plaintiff was able to perform light work, including sitting

for about six hours in an eight-hour day and standing or walking for about six hours in an eight-

hour day, with additional postural and environmental limitations. (AR 118-120.) (emphasis

added). Dr. Nelson-Desiderio acknowledged that Plaintiff would have limitations from

musculoskeletal pain and fatigue resulting from kidney disease, but he noted also that Plaintiff’s

renal ultrasound showed no hydronephrosis or kidney stones, and furthermore, her renal

insufficiency from hypertension and blood pressure was “being controlled, [and there were] no

urinary symptoms, [and only] occasional low back and flank pain[.]” (AR 120.)

The ALJ gave “some weight” to the opinion of Plaintiff’s treating physician, Dr. Hill-

Daniel, that Plaintiff “can “lift and carry 25 pounds, but only 10 pounds frequently,” and “can sit

for at least 2 hours, but can stand and walk for less than 2 hours.” (AR 55.) The ALJ noted that

Dr. Hill-Daniel was Plaintiff’s “treating source,” and as such, the doctor was “well placed to

provide an opinion as to the [Plaintiff’s] symptoms and limitations.” (AR 55.) Finally, the ALJ

concluded that Dr. Hill-Daniel’s “opinion is consistent with the objective findings and the

claimant’s conservative course of treatment during the period at issue,” and the ALJ referenced

some exhibit numbers. (AR 55.)

17 Plaintiff argues that while the ALJ found that treating physician Dr. Hill-Daniel was “well

placed to provide an opinion,” and that “his opinion was consistent with the objective findings . .

. ” (AR 55), Dr. Hill-Daniel’s assessment was given only “some” weight, which is the same weight

given to Dr. Grim, even though the ALJ found that Dr.’s Grim’s assessment of Plaintiff was not

wholly appropriate, particularly with respect to her “ability to sit, stand, walk, and engage in

postural activities.” (AR 55.) This Court finds that the ALJ’s statement about Dr. Hill-Daniel’s

opinion being consistent with objective findings but also consistent with conservative treatment is

confusing. Furthermore, the ALJ proffered no indication why she gave the most weight to Dr.

Nelson-Desiderio’s opinion that “the claimant was able to perform light work, sit, stand, and walk

for 6 hours, . . .” other than that this doctor is “familiar with the Social Security program, and his

opinion is generally consistent with the medical evidence.” (AR 55.)

While the ALJ does not have to afford the treating physician’s opinions controlling weight,

if the ALJ does not treat them as controlling, she must explain how they are contradicted by

substantial evidence and why she is not following them, and that is where the ALJ’s Decision fails.

In this case, there is a difference of opinion among the medical professionals as to limits on the

Plaintiff’s capabilities involving sitting, standing and walking, which are at the heart of her ability

to perform light work. The ALJ gave three physicians’ opinions “some” weight, and then indicated

that more weight was given to one. The ALJ failed to clearly explain how Dr. Hill-Daniel’s

opinion was contradicted by substantial evidence and why she gave greater weight to the opinion

of the non-treating physician, Dr. Nelson-Deisderio (and even why Dr. Grim’s assessment was

given less weight). In contrast, the ALJ did explain why “little” weight was given to Dr.

Miknowski’s opinion.

18 If the ALJ “rejects the opinion of a treating physician, [he shall] explain his reasons for

doing so.” Butler,

(citation omitted). The ALJ’s reasons must be “sufficiently

specific to make clear to [the court]” why the ALJ assigned that weight. SSR 96-2 [Policy

Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical

Opinions],

at *5. See, e.g., Perkins v. Berryhill,

(D.D.C.

2019) (discussing the ALJ’s failure to explain sufficiently his reasoning for declining to accord the

treating physician’s opinion controlling weight); Butler,

(emphasizing that it is

the ALJ who should explain the weight attached to the treating physician’s conclusions and his

reasons for doing so).

While the ALJ need not encompass the entirety of her analysis in any paragraph of her

decision, she must provide a sufficient basis for this Court to understand her reasoning when

viewing the decision as a whole, which was not done here. Compare Callaway v. Berryhill,

(D.D.C. 2018) (where “sufficient information [was] provided for the Court

to understand [the ALJ’s] reasoning”). The ALJ needs to “buil[d] a logical bridge from the

evidence to [her] conclusion by thoroughly evaluating the evidence, explaining which evidence

was persuasive and supported by the record, and comparing the objective medical evidence to

Plaintiff’s subjective testimony.” Cunningham v. Colvin,

(D.D.C. 2014)

(internal quotation marks and quotation omitted).

In the instant case, the ALJ merely referenced the same set of exhibits (by numbers only,

without any explanation of why they are being referenced) with regard to both Dr. Nelson-

Desiderio and Dr. Hill-Daniel. The exhibits are: 1F/7 (AR 339), where the Plaintiff had a walk-in

medical visit to obtain a refill of medication because of swelling in her legs; 1F/64 (AR 386),

which indicated that Plaintiff had “mild medical renal disease;” 2F/18 (AR 423), relating to a

19 medical visit with Dr. Cohen to evaluate Plaintiff’s chronic kidney disease; 2F/32-36 (AR 436-

441), which are various medical records discussing conservative treatment for Plaintiff’s lower

back pain/scoliosis, spinal MRI results showing scoliosis, as well as a notation in her social history

about brief walks and short bike rides; 5F/6 (AR 494), indicating a normal result for the kidney

ultrasound; and 8F/10 (AR 648), a notation that Plaintiff was ambulatory with a steady gait on July

21, 2011. The Court notes that the ALJ did discuss some of these exhibits in other portions of the

Decision. (AR 54-55.) This record evidence [or some of it] may be relevant to Plaintiff’s capacity

to sit, stand and walk [and accordingly, perform light work]; however, it is not the function of this

Court to reweigh the evidence.

While the ALJ indicated she gave “some” weight to both Dr. Hill-Daniel and Dr. Nelson-

Desiderio, the ALJ ultimately failed to explain why she gave more weight to Dr. Nelson-Desiderio

than to Plaintiff’s treating physician, and she failed to provide an explanation of how the medical

evidence contradicts Dr. Hill-Daniel’s proffered limitations on Plaintiff’s ability to sit, walk and

stand for longer periods of time. Accordingly, because the ALJ failed to “build a logical bridge”

from the evidence to the weight she gave to the medical professionals’ opinions, the case is

remanded to the SSA for reevaluation of the record evidence with regard to the weight given to

Plaintiff’s treating physician.

B. The ALJ’s Assessment of Plaintiff’s Testimony was Supported by Substantial

Evidence

Plaintiff alleges that the ALJ’s finding that her “statements concerning the intensity,

persistence and limiting effects of [her] symptoms were not entirely consistent with the medical

evidence and other evidence in the record.” (AR 54.) Defendant asserts that the “credibility

determination is solely within the realm of the ALJ.” Def.’s Mot., ECF No. 12, at 16; see Grant

20 v. Astrue,

(D.D.C. 2012) (noting that the ALJ’s assessment of

credibility is entitled to “great weight and deference, since he had the opportunity to observe the

witness’s demeanor.”). There is a two-step process to determine “whether a claimant’s symptoms

affect her ability to perform basic work activities.” Callaway v. Berryhill,

(D.D.C. 2018) (citing 20 C.F.R. Section 404. 1529). The first step requires that the ALJ

determine whether the claimant’s medically determinable impairments could reasonably be

expected to produce the alleged subjective symptoms. Callaway,

; 20

C.F.R. Section 404.1529(a)-(b). The second step requires that the ALJ evaluate the intensity and

persistence of the symptoms and determine the extent to which the symptoms limit the claimant’s

capacity to work. Callaway,

; 20 C.F.R. Section 404.1529(c)(1). A

claimant’s allegations alone do not establish disability. See 20 C.F.R. Section 404.1529.

While an ALJ may not reject a claimant’s statements about pain “solely because they are

not substantiated by objective medical evidence,” the ALJ may consider “whether there are any

inconsistencies in the evidence and the extent to which there are any conflicts between [the

claimant’s] statements and the rest of the evidence.” Butler v. Barnhart,

(D.C. Cir. 2004)

Plaintiff challenges the ALJ’s assessment on several issues: (1) that her “conservative”

treatment plan by her treating physicians was not indicative of the severity of her pain; (2) that her

ability to walk with a normal gait and have full muscle strength is not supported by the ALJ’s

citations to the record; and (3) that her reference to a bike ride in the “social history” portion of

her medical records was taken out of context. Defendant argues that substantial evidence supports

the ALJ’s assessment of Plaintiff’s subjective complaints.

21 Regarding Plaintiff’s scoliosis, the ALJ found that the medical evidence revealed

“moderate scoliosis,” although the prescribed treatment has been consistently “conservative,” and

she noted that Plaintiff’s scoliosis was “very well managed with physical therapy and did not

warrant surgical intervention.” (AR 54.) These findings by the ALJ are supported by substantial

evidence in the record. Plaintiff counters that her suggested treatment plan for scoliosis was

conservative because “[undergoing] surgery would be quite an undertaking and may not, at [that]

time, [have] be[en] in [Plaintiff’s] best interest due to the complexity and magnitude of surgery.”

Pl.’s Reply, ECF No. 14, at 7 (citing AR 441). The ALJ noted further that Plaintiff was told to

“avoid NSAID pain relievers,” and concluded that this may indicate that Plaintiff’s pain was not

“as severe as [Plaintiff] has alleged.” (AR 54). Plaintiff points out that the prohibition against

NSAIDs stemmed from her kidney issues. Pl.’s Mot., ECF No. 11, at 14-15; Pl.’s Reply, ECF No.

14, at 4.10

The ALJ referenced notations from the record that indicate Plaintiff walked with a “normal

gait.” (AR 54.) While the reference cited by the ALJ (AR 648) is a nursing assessment that

Plaintiff was “ambulatory with a steady gait,” there are treatment notes from that same medical

visit that indicate Plaintiff’s “[g]ait [was] normal” on examination. (AR 646.) The ALJ mentioned

Plaintiff’s full muscle strength (AR 54), relying notations regarding Plaintiff’s 5/5 strength and

normal sensation, and a “social history” notation that Plaintiff’s activities included brief walks and

short bike rides. (AR 441.) The ALJ noted that Plaintiff lived in a third floor apartment and

climbed multiple flights of stairs (AR 55). Plaintiff argues the ALJ misconstrued evidence; see

Pl.’s Mot., ECF No. 11 at 16 (arguing that Plaintiff ‘s reference to bike riding referred to her prior

10 As previously noted, in 2010, Plaintiff was prescribed ibuprofen for her scoliosis (AR 353, 355), and in 2011, she was prescribed acetaminophen. (AR 334.)

22 activities), Pl.’s Reply, ECF No. 14, at 6 (noting testimony about the 9 steps to Plaintiff’s third

floor apartment). The Court finds however that there is no dispute that the evidence relied upon

by the ALJ is in the record.

In focusing on Plaintiff’s kidney disease, the ALJ looked to medical evidence from August

2011, indicating mild kidney disease, and the “minimal treatment” other than monitoring that

Plaintiff received “from the onset date through the date last insured.” (AR 54.) The ALJ focused

also on Plaintiff’s normal kidney ultrasound in October 2012. (AR 54.) The ALJ acknowledged

that Plaintiff had stage 3 kidney disease, but she noted Plaintiff’s stable creatinine levels, and she

mentioned that Plaintiff’s denial of any urinary symptoms [contained in the medical records]

contradicted her testimony at the hearing. Plaintiff argued that the urinary urgency related to her

2016 testimony as opposed to in 2010 or 2012, when Plaintiff denied urinary urgency. Pl.’s Reply,

ECF No. 14, at 4 Overall, the ALJ weighed the evidence and concluded that the Plaintiff’s

statements as to the intensity, persistence and limiting effects of her symptoms were not entirely

consistent with the medical evidence and other record evidence. Despite Plaintiff’s protestations

and post hoc explanations about her social history and urinary urgency, this Court finds that the

ALJ’s credibility determination is supported by substantial evidence. Accordingly, the Plaintiff’s

Motion is denied on this grounds.

C. The ALJ’s RFC Finding was Supported by Substantial Evidence

Plaintiff argues that the ALJ’s RFC finding was not supported by substantial evidence,

with a focus on the ALJ’s analysis of Ms. McCormick’s kidney disease. Plaintiff argues that the

increase in the severity of her diagnosis – from “mild” kidney disease in 2011 to stage three kidney

disease in October 2012 – on its face supports her claim of disability. Pl.’s Mot., ECF No. 11, at

17-18. Plaintiff argues further that while her creatinine levels were noted to be stable, they were

23 also noted to be elevated. Pl.’s Mot., ECF No. 11, at 18; Pl’s Reply, ECF No. 14, at 8-9, and while

her kidney ultrasound in October 2012 was normal, “her kidney function was not normal as

demonstrated by her elevated creatinine levels . . . “ Pl.’s Mot., ECF No. 11, at 18. The Court

finds that these points argued by Plaintiff are incorporated into the ALJ’s analysis. See Section

III.B. above; see also AR 423 (referenced by the ALJ) (recognizing elevated serum creatinine of

1.5, as of 2008, and creatinine that has been stable since then, per Plaintiff).

Plaintiff disagrees next with the ALJ’s characterization of Plaintiff’s treatment as

“minimal” insofar as she was “placed on Furosemide, which is used to treat edema in people with

kidney disease” and she was “advised to follow a low sodium diet and to avoid NSAIDs and herbal

supplements,” and she was put on blood pressure medications. Pl.’s Mot., ECF No. 11, at 18. The

record indicates that Plaintiff’s kidney disease was treated through a combination of diet and

medication (including medication for her blood pressure), and without dialysis or surgical

intervention. The Court finds that the ALJ’s reference to this as “minimal” treatment is not

inconsistent with the record evidence.

The Court finds that the ALJ’s consideration of Plaintiff’s kidney functioning in

formulating the RFC was supported by substantial record evidence, and accordingly, there is no

need to re-weigh the evidence.11 “Where conflicting evidence allows reasonable minds to differ

as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner]

or the [Commissioner’s] designate, the ALJ.” Smith v. Astrue,

(D.D.C.

2008) (quoting Walker v. Bowen,

(7th Cir. 1987)). Accordingly, Plaintiff’s

claim that the ALJ’s RFC finding was not supported by substantial evidence is denied.

11 Defendant notes that “Dr. Desidierio also evaluated the objective evidence of Plaintiff’s kidney functioning and found that, although Plaintiff would have some limitations from her kidney disease, Plaintiff retained the capacity to perform light work.” (AR 118-120.)

24 D. The ALJ Sufficiently Developed the Record to Issue a Decision

An ALJ in a Social Security benefits hearing is obligated to develop the record adequately,

Prince v. Berryhill,

(D. Conn. 2018) (citation omitted), and this

obligation exists even when a claimant is represented by counsel. See Pratts v. Chater,

(2d Cir. 1996) (an ALJ “must [her]self affirmatively develop the record.”) (quotation

omitted). While the ALJ has a duty to develop the record, the Plaintiff bears responsibility for

developing the record by producing evidence that relates to her claim of disability. Jackson v.

Berryhill,

(D.D.C. 2017) (citations omitted).

During the Administrative Hearing, Plaintiff testified that her kidney disease caused her to

wet on herself out in public, and she was vomiting a lot. (AR 79.) When asked by the ALJ if she

notified any of her doctors of these symptoms, Plaintiff stated that she told her private physician,

Dr. Cleveland Williams. (AR 80.) The ALJ indicated that he did not have records or treatment

notes that would support that testimony, and Plaintiff’s counsel asked if the record could be left

open for a short amount of time. (AR 81.) The ALJ did not permit the record to remain open as

“[t]his [was] an old DLI,” but the ALJ indicated that Plaintiff could “send anything in up until the

day [the ALJ] issue[d] a decision[,] [and] . . . [i]t will be looked at and if the decision has to be

modified, we’ll modify it.” (AR 81.)

Plaintiff contests generally (without providing any case law support) that the ALJ’s offer

to receive documentation up to the date the decision was issued – over two months after the hearing

– was insufficient to satisfy the obligation that the ALJ develop the record adequately. Where the

ALJ has provided Plaintiff with sufficient opportunity to submit evidence, the ALJ fulfills her duty

by ruling on the evidence that is available. Hynes ex rel. Davis v. Astrue, No. CIV. A. 01-1231

RBW,

, at *4 (D.D.C. May 12, 2009) (citing Musgrave v. Sullivan,

1371, 1377 (10th Cir. 1992)). Furthermore, it is the claimant’s burden to prove that any error in

developing the record was harmful. Clark v. Astrue,

(D.D.C. 2011)

(“reversal for ‘failure to develop the record is only warranted where such failure is unfair or

prejudicial’”) (quoting Smith v. Astrue,

(D.D.C. 2008)).

Defendant argues that, in this case, there was “more than ample time for Plaintiff to submit

evidence relevant to the disability issue in question” as Plaintiff had the burden to prove that she

was disabled prior to December 31, 2012, and the administrative hearing did not occur until

December 2016. Def.’s Mot., ECF No. 12, at 20-21. Defendant submits that “Plaintiff has

provided no explanation why she was unable to timely present evidence that had been in existence

for many years [and] . . . the ALJ informed Plaintiff at the hearing that she could present evidence

up until the day she issued her decision,” which was two months after the hearing. Def.’s Mot.,

ECF No. 12, at 21. Moreover, “Plaintiff has provided no explanation why the additional two

months . . . were insufficient to obtain any further evidence, and [had] still not presented the records

in question [by the time this issue was briefed] to demonstrate any prejudice[.]”

The Court

finds that Plaintiff had ample time to present evidence about her claim, and the ALJ’s offer to

accept additional evidence up to the time of her decision alleviated any possible prejudice to

Plaintiff as it permitted her time to submit any additional medical records. Accordingly, Plaintiff’s

claim that the ALJ did not sufficiently develop the record is denied.

IV. Conclusion

Upon consideration of Plaintiff’s [11] Motion for Judgment of Reversal; Defendant’s

[12/13] [Consolidated] Motion for Judgment of Affirmance and Opposition to Plaintiff’s Motion

for Judgment of Reversal; and Plaintiff’s [14] Reply; and the Administrative Record herein, for

the reasons explained herein and based on the applicable legal standard of review, the Court shall

26 GRANT IN PART and DENY IN PART Plaintiff’s [11] Motion for Judgment of Reversal and

DENY Defendant’s [12] Motion for Judgment of Affirmance, with the effect that the case shall be

REMANDED to the SSA for reconsideration of the following issue raised by Plaintiff -

reevaluation of the record evidence with regard to the weight given to opinion of Plaintiff’s treating

physician.

The ALJ’s Decision with regard to the following issues is upheld: (1) the ALJ’s assessment

of Plaintiff’s testimony; (2) the ALJ’s RFC finding; and (3) the sufficient development of the

record.

A separate Order accompanies this Memorandum Opinion.

DATED: June 25, 2021 ___________/s/__________________ COLLEEN KOLLAR-KOTELLY UITED STATES DISTRICT JUDGE

27