UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WANDA KYLER,

Plaintiff,

v. Civil Action No. 1:19-cv-03334 (CJN)

KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration,

Defendant.

MEMORANDUM OPINION

Wanda Kyler seeks reversal of the Social Security Administration’s denial of her claims

for disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 401–

433. Kyler contends that the Administrative Law Judge applied the wrong law and that the

decision is not supported by substantial evidence. See generally Pl.’s Mot. for Judgment of

Reversal (“Pl.’s Mot.”), ECF No. 13. The Administration argues that the Court should affirm the

decision. See generally Def.’s Mot. for Judgment of Affirmance (“Def.’s Mot.”), ECF No. 14.

Upon consideration of the motions and the administrative record, the Court will deny Kyler’s

motion for judgment of reversal and grant the Administration’s motion for judgment of affirmance.

I. Statutory Framework & Legal Standards

The Social Security Act of 1935 established a framework to provide “disability insurance

benefits” to eligible claimants.

(a)(1)(A). The Act defines “disability” in pertinent

part 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 12 months.”

§

1 423(d)(1)(A). To establish eligibility for disability-based benefits, the claimant must show that

she has met the statutory definition of disability prior to her “date last insured.” See

;

; Kathy R. v. Comm’r of Soc. Sec., No. 6:19-CV-385,

,

at *4 n.4 (N.D.N.Y. Apr. 14, 2020) (noting that the “date last insured” “is a technical term used . .

. to mark the last day on which a claimant is eligible for” disability benefits). The time between

the alleged disability onset-date and the date last insured represents the operative timeframe, also

known as the “relevant period,” for purposes of deciding an individual’s claim for disability

benefits. See Shimanek v. Kijakazi, No. CIV-20-417-J,

, at *3 (W.D. Okla. Mar.

10, 2022); Cauthen v. Saul,

, 446 (5th Cir. 2020) (noting that “disability evidence

completely unrelated to the relevant period is irrelevant to adjudication of the claim”).

A multi-layered administrative process undergirds an individual’s claim for disability

benefits. See Carr v. Saul,

(2021). A claimant must first seek an initial

determination.

(1). If unsatisfied with the outcome, the claimant may seek

reconsideration.

§ 404.900(2). Where the claimant finds fault with the reconsideration

determination, the claimant may “request a hearing before an administrative law judge.” Id. §

404.900(3).

The Commissioner of Social Security has promulgated regulations outlining a five-step

process that applies at each stage, including before the ALJ. See

; Dowell v.

Colvin,

(D.D.C. 2017). At step one, a claimant is not disabled if the claimant

is engaged in “substantial gainful activity.”

(a)(4)(i). Substantial gainful

activity includes work for pay or profit requiring significant mental or physical ability.

§

404.1572(a)-(b).

2 At step two, and only if the claimant is not engaged in substantial gainful activity, the ALJ

determines whether the claimant has a “severe medically determinable physical or medical

impairment that meets the duration requirement . . . or a combination of impairments that is severe

and meets the duration requirement.” Id. § 404.1520(a)(4)(ii). To meet the duration requirement,

a severe impairment or combination thereof “must have lasted or must be expected to last for a

continuous period of at least 12 months.” Id. §§ 404.1509, 416.909.

At step three, and only if the claimant suffers from a severe impairment, the ALJ assesses

whether the impairment “meets or equals one of the listings [of impairments].” Id. §

404.1520(a)(4)(iii). The listings of impairments describe impairments considered “severe enough

to prevent an individual from doing any gainful activity, regardless of his or her age, education, or

work experience.” Id. § 404.1525(a). If a claimant’s impairments meet all the criteria of a

particular listing, id. § 416.925(c)(3), or are equivalent to a listing, id. § 416.926, the claimant

counts as disabled, id. § 416.920(d); see also Cunningham v. Colvin,

(D.D.C.

2014) (noting that where the ALJ finds that the claimant suffers from an impairment that meets

one of those listed, then, the claimant qualifies as disabled, ending the inquiry at step three). The

medical criteria defining the listed impairments has been set “at a higher level of severity than the

statutory standard” for disability. Sullivan v. Zebley,

(1990).

At step four, and only if the claimant does not satisfy one of the listed impairments, the

ALJ will evaluate the claimant’s “residual functional capacity.”

§ 404.1520(a)(4)(iv); see also

Id. § 404.1545(a)(1) (defining “residual functional capacity” as “the most you can still do despite

your limitations”). After evaluating the claimant’s residual functional capacity, the ALJ will assess

whether the claimant has shown that she cannot perform her “past relevant work.” Id. §

404.1520(a)(4)(iv).

3 At step five, and only if the claimant cannot perform her past relevant work, the ALJ

evaluates the claimant’s residual functional capacity, “age, education, and work experience to see

if [the claimant] can make an adjustment to other work.” Id. § 404.1520(a)(4)(v). If a claimant

can make a feasible adjustment, then she is not disabled; a finding that there are no feasible

adjustments results in a finding that the claimant is disabled. Id.; see also Butler v. Barnhart,

(D.C. Cir. 2004) (noting that the claimant bears the burden on the first four steps,

whereas the Administration bears the burden on the fifth step).

In performing this five-step process, the ALJ “must adhere to certain regulatory

requirements.” Saunders v. Kijakazi,

(D.C. Cir. 2021). The ALJ must consider the

“objective medical evidence from an acceptable medical source,” medical opinions, and the

claimant’s subjective statements.

(a). More weight must be accorded to

physicians who have treated and examined the claimant.

§ 404.1527(c)(1), (c)(2).

Assuming the claimant disagrees with the ALJ’s conclusion, the claimant may request

review by the “Appeals Council.” Id. § 404.900(4). If the claimant is dissatisfied with the Appeals

Council’s determination, the claimant may seek judicial review. Id. § 404.900(5);

(g) (noting that a claimant may seek judicial review of “any final decision of the Commissioner

of Social Security made after a hearing to which [she] was a party”).

The Administration’s determination will not be disturbed if it is supported by substantial

evidence and when the Administration applied the correct legal standards.

(g),

1383(c); see also Thigpen v. Colvin,

(D.D.C. 2016). The substantial-

evidence standard is “highly deferential.” Rossello ex rel. Rossello v. Astrue,

(D.C. Cir. 2008) (Kavanaugh, J.) (quoting Pierce v. Underwood,

(1988)). As

the Supreme Court recently noted, the substantial-evidence standard does not present a high bar.

4 See Biestek v. Berryhill,

(2019). Rather, it “means—and means only—such

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

(quotation omitted). Reversing an agency decision under the standard “is rare.” Rossello, 529

U.S. at 1185. And even if the Court perceives error, the Court will affirm the Administration’s

decision under the harmless-error standard unless prejudicial error is afoot. See Saunders,

.

II. Facts & Procedural Background

Wanda Kyler performed clerical duties as a school office manager from 1995 through most

of 2003, and she worked in customer service at a call center for the rest of 2003. See

Administrative Record (“AR”), at 423. Approximately eight years later, Kyler filed an application

for disability insurance benefits with the Social Security Administration.

. In her

application, Kyler claimed that she became disabled on September 1, 2004, on the basis of obesity,

asthma, arthritis, hypertension, fatigue, shortness of breath, carpal tunnel syndrome, and knee

problems.

.

In February 2012, a disability adjudicator determined that Kyler did not qualify for

disability benefits.

. To reach that determination, the adjudicator considered Kyler’s

“medical records,” her “statements,” and how her “condition[s] affected [her] ability to work.”

. A month later, the Administration upheld the determination upon reconsideration.

.

Soon after, Kyler requested a hearing before an Administrative Law Judge.

. After

consideration of the record, the ALJ determined that Kyler did not have an impairment or

combination of impairments that fell within those listed in the applicable regulation.

.

The ALJ also found that Kyler had the residual functional capacity to perform sedentary work with

some exceptions and that Kyler could perform similar past relevant work.

. Kyler

5 appealed to the Appeals Council.

. But the Appeals Council found no reason to review the

ALJ’s decision.

. Kyler sought judicial review. See Kyler v. Comm’r of Soc. Sec. Admin.,

(D.D.C. 2014). Judge Huvelle reversed the ALJ’s decision and remanded for

further consideration of Kyler’s alleged impairments. See generally

In March 2015, a second ALJ conducted an administrative hearing, AR at 456, and decided

almost two months later that Kyler did not suffer from a disability for purposes of receiving

disability benefits, id. at 420. In particular, the ALJ found that Kyler did not have an impairment

or combination of impairments that met or medically equaled the severity of one of the listed

impairments. Id. The ALJ also found that Kyler possessed the residual functional capacity to

perform some sedentary work with certain added limitations. Id. Kyler appealed to the Appeals

Council, id. at 397, which again found no reason to review the ALJ’s decision, id. at 399. Kyler

again sought judicial review. Magistrate Judge Harvey recommended that the ALJ’s decision be

reversed and that the matter be remanded for further consideration of Kyler’s alleged impairments

and residual functional capacity to perform certain work. See Kyler v. Berryhill, No.

116CV1271RBWGMH,

, at *11 (D.D.C. Dec. 19, 2017). Judge Walton

adopted the report and recommendation in full. See AR at 1866.

In June 2019, a third ALJ conducted an administrative hearing,

, and ultimately

determined that Kyler did not have an impairment or combination of impairments that met the

severity of one of the listed impairments,

at 1197–1199. The ALJ also found that Kyler “had

the residual functional capacity to perform sedentary work . . . except could never climb ladders,

ropes, or scaffolds; occasionally climb ramps and stairs and crawl; and must avoid concentrated

exposure to extreme cold and heat, wetness, humidity, and fumes, odors, dusts, and gases.”

6 Kyler seeks review of that decision pursuant to

(g). In her motion for

reversal, Kyler argues that the decision is based on a legal error and is not supported by substantial

evidence. See generally Pl.’s Mot. In particular, Kyler argues that the ALJ applied the wrong

legal standard in evaluating Kyler’s alleged impairments at step three of the sequential evaluation

process,

, and that the ALJ’s decision regarding Kyler’s residual functional capacity is not

based on substantial evidence,

.

III. The ALJ Applied the Correct Legal Standard at Step Three

Recall that step three requires an ALJ to assess whether a claimant’s impairment “meets or

equals one of the listings,”

(a)(4)(iii). Recall, too, that the listings refer to a

list of “impairments that [the ALJ] consider[s] to be severe enough to prevent an individual from

doing any gainful activity, regardless of his or her age, education, or work experience,”

(a).

Up until October 7, 2016, Listing 3.03B stated that an individual suffered from debilitating

asthma when that individual experienced “[e]pisodes of severe attacks,” “in spite of prescribed

treatment and . . . physical intervention, occurring at least once every 2 months or on an average

of at least 6 times a year.” Kyler v. Berryhill, No. 116CV1271RBWGMH,

,

at *8 (D.D.C. Dec. 19, 2017) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.03B (2015)). The

Listing further provided that each “in-patient hospitalization for longer than 24 hours for control

of asthma counts as two attacks, and [that] an evaluation period of at least 12 consecutive months

must be used to determine the frequency of attacks.” Id.

On June 9, 2016, however, the Administration published a modified rule, effective October

7, 2016, revising the listing of impairments for claims involving respiratory disorders. See Revised

Medical Criteria for Evaluating Respiratory System Disorders,

(effective October 7,

7 2016). The revised listing states that “[e]xacerbations or complications requiring three

hospitalizations within a 12-month period and at least 30 days apart [count] (the 12-month period

must occur within the period we are considering in connection with your application or continuing

disability review). Each hospitalization must last at least 48 hours, including hours in a hospital

emergency department immediately before the hospitalization.”

.

In July 2019, the ALJ compared Kyler’s impairments against the version of Listing

3.03(B) effective after October 7, 2016. See AR at 1198. In his decision, the ALJ noted that, at

the administrative hearing, “the claimant’s representative acknowledged that the claimant’s

impairments, alone or in combination, did not meet listing 3.03, as currently written, through the

date last insured because she did not have the requisite number of hospitalizations.”

The ALJ

also declined to consider whether Kyler satisfied the criteria of the respiratory impairment listing

as it existed before October 7, 2016.

Kyler argues that the ALJ committed legal error when he applied the version of Listing

3.03(B) effective after October 7, 2016, rather than the prior version. See Pl.’s Mot. at 5. In

particular, Kyler contends that the application of the revised criteria to Kyler’s application for

disability benefits constitutes “impermissible retroactive rulemaking.”

.1 Kyler’s argument

misses the mark.

Under what is known as the “presumption against retroactivity,” courts presume that new

laws “operate prospectively only, to govern future conduct and claims, and do not operate

1 Kyler also contends that she satisfied the criteria for Listing 3.03(B) in effect before October 7, 2016. See Pl.’s Mot. at 7. The Court need not address this argument because the ALJ properly applied the criteria for Listing 3.03(B) effective after October 7, 2016, and because Kyler does not argue that she satisfied the revised criteria. Indeed, Kyler conceded that she cannot satisfy the criteria for the current version of the Listing. See AR at 1222.

8 retroactively, to reach conduct and claims arising before” the law’s enactment. Ward v. Dixie Nat.

Life Ins. Co.,

(4th Cir. 2010) (Wilkinson, J.); De Niz Robles v. Lynch,

(10th Cir. 2015) (Gorsuch, J.); see Vartelas v. Holder,

(2012) (noting

that unambiguous congressional instruction will overcome the presumption). The presumption

extends beyond statutes: an agency may not promulgate a retroactive regulatory rule absent

express congressional authorization. See Bowen v. Georgetown Univ. Hosp.,

(1988).

Where a statute contains no unambiguous instruction commanding retroactivity, courts

must decide whether application of the new rule would have retroactive effect. See Gordon v.

Pete’s Auto Serv. of Denbigh, Inc.,

(4th Cir. 2011) (Wilkinson, J.). Congress

has not authorized the Social Security Administration to promulgate retroactive rules. See

(a); Nat’l Min. Ass’n v. Dep’t of Lab.,

(D.C. Cir. 2002) (per

curiam). The question, then, is whether the new rule, if applied here, operates retroactively. See

Cox v. Saul, No. 118CV02389KBJGMH,

, at *7 (D.D.C. Sept. 1, 2020).

Application of new law operates retroactively if it “would attach new legal consequences

to events completed before its effective date.” Metroil, Inc. v. ExxonMobil Oil Corp.,

(D.C. Cir. 2012) (Kavanaugh, J.); Bergerco Canada, a Div. of Conagra, Ltd. v. U.S.

Treasury Dep’t, Off. of Foreign Assets Control,

(D.C. Cir. 1997) (application

of new law would have retroactive effect if it “chang[es] the legal rights flowing from previous

acts”). The application of new law attaches legal consequences to a completed event if it impairs

a party’s vested right, imposes new duties on a party with respect to completed transactions, or

increases a party’s liability for past conduct. See Empresa Cubana Exportadora de Alimentos y

Productos Varios v. U.S. Dep’t of Treasury,

(D.C. Cir. 2011) (Kavanaugh, J.)

9 (citing Fernandez-Vargas v. Gonzales,

(2006)); see also Celtronix Telemetry, Inc.

v. F.C.C.,

(D.C. Cir. 2001) (noting that the arbitrary and capricious standard

apples to “secondary retroactivity”—e.g., a new regulation that makes worthless substantial

investment incurred in reliance upon the prior rule).

Application of the revised regulation does not increase Kyler’s liability for past conduct.

See Bartko v. Sec. & Exch. Comm’n,

(D.C. Cir. 2017). Nor does application

of the revised regulation impose new duties on her. See Quantum Ent. Ltd. v. U.S. Dep’t of the

Interior,

(D.C. Cir. 2013).

But does application of the revised regulation impair one of Kyler’s vested rights? See

Bergerco Canada, a Div. of Conagra, Ltd. v. U.S. Treasury Dep’t, Off. of Foreign Assets Control,

(D.C. Cir. 1997) (“[W]e must ask whether the legal status quo ante created

‘rights’ favorable to [Kyler] and later modified.”); Abington Mem’l Hosp. v. Burwell,

(D.D.C. 2016) (noting that “if a regulated party’s rights have not yet vested with

respect to particular conduct—i.e., if the former legal consequences of his act have not attached

before the rule change—the agency’s application of a changed rule that alters the legal

consequences of the prior conduct operates only prospectively”); see also Geoffrey C. Weien,

Retroactive Rulemaking, 30 HARV. J.L. & PUB. POL’Y 749, 763 (2007) (“The key recurring

question in [retroactive-rulemaking] challenges is whether the plaintiff had a right that the agency

attempted to eliminate or impair.”).

Pending claims that rest on statutes or regulations “are contingent, and the rules may

change” until the right under the statute or regulation “may be said to vest.” McCavitt v. Kijakazi,

(7th Cir. 2021) (Easterbrook, J.). Disability benefits under the Social Security

Act are non-vested benefits “and do not become vested until one has actually established his

10 eligibility.” Harris v. Richardson,

(9th Cir. 1972) (per curiam); Flemming v.

Nestor,

(1960) (“To engraft upon the Social Security system a concept of

‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to

everchanging conditions which it demands.”). That makes sense, as “[d]isability benefits are not

designed to encourage people to acquire disabilities or reward them for doing so; limits on a federal

subsidy differ from penalties.” McCavitt,

. Here, of course, Kyler did not become

impaired in reliance on the old regulation. Because Kyler had no vested right to disability benefits

and because she “did not rely on the pre-existing state of the law to [her] detriment,” the prior

regulation may apply, “even if it is unfavorable to” Kyler’s pending claim. Gonzalez v. Cuccinelli,

(4th Cir. 2021).

The Court draws support for its conclusion from Combs v. Commissioner of Social

Security,

(6th Cir. 2006) (en banc). The en banc court in Combs faced the

question whether the Administration erred when it refused to apply an old regulation to a

claimant’s application for disability benefits. See generally

The applicant filed the claim three

years before the Administration eliminated the old regulation, which contained criteria favorable

to the applicant’s claim.

A majority of the en banc court, however, concluded that declining

to apply the old regulation was not retroactive. See BellSouth Telecommunications, Inc. v. Se. Tel.,

Inc.,

(6th Cir. 2006) (unpacking and applying the en banc decision). A seven-

judge plurality determined that the new rule regulated procedure rather than substance and

therefore posed no retroactivity problem. Combs, 459 F.3d at 642–48. The opinion concurring in

the judgment, which provided the necessary eighth vote to affirm, decided that application of the

new rule did not have retroactive effect because the applicant “had no settled expectation—let

11 alone a vested right—in the use of the substantive regulations in force when she filed her disability

claim.”

(Gilman, J., concurring in the judgment).

National Mining Association v. Department of Labor,

(D.C. Cir. 2002) (per

curiam) does not compel a different result. In that case, a mining association argued that applying

certain revised regulations to the adjudication of pending claims brought by coal miners under the

Black Lung Benefits Act represented impermissible retroactive rulemaking.

. That Act

provides disability benefits to miners by shifting risk and liability onto the mining industry.

One of the revised regulations created a rebuttable presumption in favor of the applicant,

, while a second expanded the scope of an employer’s liability,

. The Court of Appeals

held that the application of both revised regulations was retroactive.

.

That case is distinguishable from this one for at least two reasons. First, it involved the

possibility of saddling private individuals with additional liability for past conduct. See

(noting that where a “rule changes the legal landscape in a way that affects substantive liability

determinations . . . it may operate retroactively”) (emphasis added); see also Nat’l Cable &

Telecommunications Ass’n v. F.C.C.,

(D.C. Cir. 2009) (casting doubt on the

scope of the Court of Appeals’ holding in Nat’l Mining Ass’n v. Dep’t of Labor,

(D.C. Cir. 2002)). As Judge Gilman put it, one “regulation increased the likelihood that mining

companies would be held liable for past conduct, whereas the [second] altered the amount that the

companies would be required to pay in the event that they were found liable.” Combs,

(Gilman, J., concurring in the judgment); see also

at 650 n.3. Here, by contrast, the revised

regulation makes it more difficult for a private individual to obtain a government benefit. See

McCavitt,

. Second, Kyler possessed no “settled expectations” that the old regulation

would apply to her pending claim because Congress has reserved the right to alter, amend, or repeal

12 any provision of the Social Security Act at any time. See Hisquierdo v. Hisquierdo,

, 575 n.6 (1979) (noting that the Social Security Act provides: “The right to alter, amend, or

repeal any provision of this [Act] is reserved to the Congress”) (quotation omitted); Pine Tree

Medical Associates v. Secretary of Health and Human Services,

(1st Cir. 1997)

(stating that “the mere filing of an application is not the kind of completed transaction in which a

party could fairly expect stability of the relevant laws as of the transaction date”).

The Court recognizes that judges in this district have reached differing results;2 district

courts across the country have arrived at different outcomes;3 and the Courts of Appeals appear

conflicted on the question.4 But the Court concludes that the decisions of the Seventh and Sixth

Circuits are more persuasive.

2 Compare Cox v. Kijakazi, No. 18-CV-2389-FYP-GMH,

, at *1 (D.D.C. Jan. 19, 2022) (concluding that the Administration must apply the regulation in effect at the time the applicant filed the claim) with Brown v. Barnhart,

(D.D.C. 2005) (reversing and remanding because the ALJ did not apply the revised regulation to the applicant’s claim). 3 Compare Tracy H. J. v. Kijakazi, No. 3:20-CV-00564 (MHL),

, at *10 n.10 (E.D. Va. Dec. 1, 2021) (concluding that the court must apply the regulation in effect at the time the applicant filed the claim); Hernandez v. Saul, No. 1:18-CV-00895-SKO,

, at *10 (E.D. Cal. July 1, 2019); Cantu v. Barnhart, No. 01 CV 848 MV/RLP,

, at *3 (D.N.M. July 29, 2002) with Jason S. v. Kijakazi, No. 3:20-CV-50162,

, at *2 n.3 (N.D. Ill. Feb. 4, 2022) (concluding that the court must apply the revised regulation even though it came about after the applicant filed the claim); LaPlante v. Comm’r of Soc. Sec., No. 1:19-CV-947,

, at *4 (W.D. Mich. June 5, 2020), Adkins v. Comm’r of Soc. Sec., No. 6:18-CV-1958-ORL-PDB,

, at *3 n.4 (M.D. Fla. Mar. 23, 2020); Rowden v. Saul, No. CIV-19-361-SM,

, at *7 (W.D. Okla. Mar. 11, 2020); Ray v. Comm’r of Soc. Sec., No. CIV-18-00638-SM,

, at *3 (W.D. Okla. Apr. 3, 2019). 4 Compare McCavitt v. Kijakazi,

(7th Cir. 2021); Combs v. Comm’r of Soc. Sec.,

(6th Cir. 2006) (plurality opinion) (en banc) with Maines v. Colvin,

(9th Cir. 2016) (memorandum disposition); Christie v. Comm’r of Soc. Sec. Admin.,

, 146–47 (3d Cir. 2008) (summary order); Nash v. Apfel,

(10th Cir. 2000).

13 One last note. Courts may but need not analyze harmless error on their own accord. See

United States v. Pryce,

(D.C. Cir. 1991); Goldstein v. Delaware Bureau of

Adult Corr.,

(D. Del. 1996). Many courts have declined to decide whether

a new or an old regulation governs a claimant’s application because the claim fails under both,

rendering application of one or the other harmless error. See Harrison v. Berryhill, No. 5:17-CV-

00255-FL,

, at *5 (E.D.N.C. May 24, 2018), report and recommendation

adopted, No. 5:17-CV-255-FL,

(E.D.N.C. Aug. 21, 2018); Jeffrey v. Berryhill,

No. CV 15-15226,

, at *5 n.2 (S.D.W. Va. Mar. 31, 2017); see also Brown v.

Berryhill, No. CV 18-589 (RJL),

, at *4 (D.D.C. Sept. 18, 2019) (finding the

Social Security Administration’s error harmless at sequential step five). The Administration,

however, has not made this argument here. Though it is feasible that Kyler’s claim fails under

both the old regulation and the revised regulation, the Court declines at this time to conduct a

harmless error analysis.

IV. The ALJ Properly Assessed Kyler’s Residual Functional Capacity

Where a disability claimant does not satisfy one of the listings at step three, the ALJ will

evaluate at step four the claimant’s “residual functional capacity” to determine whether the

claimant has the capability to perform sustained work-related physical and mental activities in a

work setting on a regular and continuing basis.

(a)(4)(iv); see also

(a)(1) (defining “residual functional capacity” as “the most you can still do despite your

limitations”). Social Security Ruling 96–8p provides the guidelines that an ALJ uses when

determining a claimant’s residual functional capacity. See Social Security Regulation (SSR) 96-

8p,

, 34477 (July 2, 1996).

14 SSR 96-8p requires that the ALJ assess the “exertional and nonexertional capacities of the”

claimant to determine whether the claimant possesses the ability to perform certain work.

The

rule states in pertinent part that an ALJ’s residual-functional-capacity assessment “must first

identify the individual’s functional limitations or restrictions and assess his or her work-related

abilities on a function-by-function basis,” which includes an evaluation of the claimant’s exertional

ability “to perform each of seven strength demands: Sitting, standing, walking, lifting, carrying,

pushing, and pulling.”

. The ALJ need not provide a written articulation one-

by-one of all seven strength demands. Rather, the ALJ’s analysis will suffice so long as the Court

can conclude that consideration of all the factors occurred during the process of arriving at a

determination. See Banks v. Astrue,

(D.D.C. 2008) (noting that “SSR 96–

8p only requires consideration of all the factors, not enumeration of all the factors”); Jamil D. v.

Kilolo Kijakazi, No. 21-CV-464 (GMH),

, at *9 (D.D.C. Mar. 29, 2022) (noting

some disagreement about whether an ALJ must conduct a written articulation of all seven strength

demands). What’s more, the ALJ’s residual-functional-capacity assessment must “include a

narrative discussion describing how the evidence supports each conclusion, citing specific medical

facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”

, 34478. Put another way, the ALJ “must build a ‘logical bridge’ from the

evidence to his conclusion.” Banks v. Astrue,

(D.D.C. 2008) (quotation

omitted).

The Court concludes that substantial evidence supports the ALJ’s determination that Kyler

has the residual functional capacity to perform some sedentary work. The ALJ analyzed Kyler’s

“subjective statements, objective medical evidence, opinion evidence, and other evidence of

record” when deciding whether Kyler had the residual functional capacity to perform limited

15 sedentary work. AR at 1202. In particular, the ALJ evaluated clinical findings of Kyler’s care

providers, unpacking in-depth Kyler’s hospital visits, her impairments, and her symptoms. Id. at

1199. The ALJ also analyzed medical opinion evidence, including the opinion of Kyler’s primary

care physician, Adebola Rojugbokan. Id. at 1202. And at the administrative hearing, the ALJ

asked a vocational expert whether a hypothetical individual with Kyler’s vocational profile could

perform limited sedentary work. Id. at 1239. The vocational expert responded in the affirmative,

stating that such an individual could perform Kyler’s past relevant work as a school secretary. Id.

at 1242. The ALJ referenced this back-and-forth questioning in his analysis. Id. at 1202. All in

all, the ALJ formulated a residual-functional-capacity assessment that accounted for Kyler’s

functional limitations, her subjective complaints, the objective medical evidence, and the medical

opinions of record. In other words, the Court concludes that the ALJ built a logical bridge from

the record evidence to his conclusion, providing a narrative that described how the evidence

supported the finding that Kyler could perform a narrow range of sedentary work. See

Cunningham v. Colvin,

(D.D.C. 2014) (noting that “the Court’s review of

the record shows that the findings and analysis in the ALJ’s residual functional assessment

involved a sufficient discussion of the relevant evidence, including which was credited and which

was rejected”).

Kyler argues that the ALJ failed to address a combination of her impairments, but rather

focused on her impairments in isolation. See generally Pl.’s Opp’n to Def.’s Mot. for Judgment,

ECF No. 16. The record reflects a different reality. The ALJ found that Kyler’s “medically

determinable impairments could reasonably be expected to cause some but not all of the alleged

symptoms.” AR at 1199 (emphasis added). The reference to the plural impairments comes after

the ALJ acknowledged that Kyler had claimed to suffer from a variety of impairments, including

16 to name a few sarcoidosis, obesity, asthma, carpal tunnel syndrome, and depression.

In

addition, the ALJ concluded that “objective medical evidence, opinion evidence, and other

evidence of record” failed to support Kyler’s claim that “her impairments” kept her from

performing limited sedentary work. Id. at 1202 (emphasis added). The Court finds that substantial

evidence supports the conclusion that the ALJ evaluated the effect of Kyler’s impairments in

combination as well as in isolation.

Kyler further contends that the ALJ failed to address Kyler’s “ability to perform work

activities eight hours per day, five days per week.” Pl.’s Mot. at 16. That contention conflicts

with the record, which shows that the ALJ considered Kyler’s past relevant work and concluded

“that an individual with the claimant’s residual functional capacity could perform her past work as

a school secretary as generally performed.” AR at 1203. The ALJ also concluded that Kyler could

perform such work even with certain environmental limitations. Id.

Kyler also claims that the ALJ had to perform “a function-by-function assessment of a

claimant’s ability to perform the physical and mental demands of work.” Pl.’s Mot. at 12. The

Court rejects that one-by-one, function-by-function reading of the regulation. Instead, the Court

joins other courts “in concluding that a decision lacking a seven-part function-by-function written

account of the claimant’s exertional capacity does not necessarily require remand.” Jeske v. Saul,

(7th Cir. 2020) (noting that at least the Second, Fourth, Eighth, Ninth, and Tenth

Circuits do not require seven-part function-by-function written account). As stated previously, the

ALJ’s analysis will suffice so long as the Court can conclude that consideration of all the factors

occurred during the process of arriving at a determination. See Banks v. Astrue,

(D.D.C. 2008) (noting that “SSR 96–8p only requires consideration of all the factors, not

enumeration of all the factors”).

17 V. Conclusion

For the foregoing reasons, the Commissioner of Social Security’s motion for judgment of

affirmance is GRANTED and Wanda Kyler’s motion for judgment of reversal is DENIED. An

Order will be entered contemporaneously with this Memorandum Opinion.

DATE: April 20, 2022

CARL J. NICHOLS United States District Judge

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