UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TIANA O.,

Plaintiff,

v. Civil Action No. 20-cv-2051-MAU KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION

Plaintiff Tiana O.1 (“Plaintiff”) filed this case challenging the decision of the Acting

Commissioner of Social Security, Dr. Kilolo Kijakazi (“Defendant” or “the Commissioner”), 2

denying Plaintiff’s claim for Social Security Disability Insurance (“SSDI”) under Titles II and XVI

of the Social Security Act,

(g), 1383(c)(3). Plaintiff moves this Court to reverse

the Commissioner’s decision, or in the alternative, remand to the Social Security Administration

(“SSA”) for further proceedings. The Commissioner argues that the Administrative Law Judge’s

(“ALJ”) decision should be affirmed.

1 Plaintiff’s name has been partially redacted in accordance with the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. See Memorandum from Hon. Wm. Terrell Hodges, Chair, Comm. on Ct. Admin. & Case Mgmt. to Chief Judges of the U.S. Cts. of Appeals, Chief Judges of the U.S. Cts., Clerks of the U.S. Cts. of Appeals, and Clerks of the U.S. Dist. Cts. (May 1, 2018), available at https://www.uscourts.gov/sites/default/files/18-ap-c-suggestion_cacm_0.pdf (last visited August 21, 2023). 2 Pursuant to Federal Rule of Civil Procedure 25(d), the current Defendant has been substituted in place of her predecessor. See Fed. R. Civ. P. 25(d). 1 Having reviewed the Administrative Record, the Parties’ briefs, and the relevant law, this

Court will GRANT IN PART and DENY IN PART the Parties’ motions and remand this case to

the SSA for further proceedings consistent with this Memorandum Opinion.

BACKGROUND

A. The Social Security Act

To qualify for disability insurance and/or supplemental security income benefits under the

Social Security Act (“the Act”), the Commissioner must find that the claimant has a “disability”

as defined in the Act. See

(a)(1)(E), 1382(a)(1). The Act defines “disability” as

the “inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which . . . has lasted or can be expected to last for a continuous

period of not less than 12 months.”

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

The Commissioner uses a five-step sequential evaluation process for assessing a claimant’s

alleged disability, with the claimant carrying the burden of proof for establishing his inability to

work. See

(a)(4), 416.920(a)(4); see also Butler v. Barnhart,

(D.C. Cir. 2004). In the first three steps, the claimant must prove that: (1) he is not “presently

engaged in substantial gainful activity”; (2) he has a “medically severe impairment or

impairments”; and (3) his impairment is equivalent to one of the impairments listed in the appendix

of the relevant disability regulation. See

(a)(4), 416.920(a)(4); see also 20

C.F.R. Pt. 404, Subpt. P., App. 1 (2017) (“the Listings”) (describing impairments for each of the

major body systems considered severe enough to prevent an individual from performing gainful

activity, regardless of age, education, or work experience).

If the claimant cannot satisfy the third step, the inquiry proceeds to steps four and five,

where the inquiry takes into “consideration . . . [the claimant’s] ‘residual functional capacity.’”

Butler,

) (citing

(f), 416.920(f)). A claimant’s residual 2 functional capacity (“RFC”) is “what an individual can still do despite his or her limitations.” SSR

96-8p,

(July 2, 1996). An RFC requires an assessment “of the extent to which

an individual’s medically determinable impairment(s), including any related symptoms . . . may

cause physical or mental limitations or restrictions that may affect his or her capacity to do work-

related physical and mental activities.”

At step four, the claimant must compare the RFC assessment with the physical and mental

demands of his past relevant work and demonstrate that his impairments prevent him from

performing that work. See

(a)(4), 416.920(a)(4). At step five, the burden

shifts to the Commissioner to identify specific jobs available in the national economy that the

claimant can perform in light of his age, education, work experience, and RFC. See id.; see also

Callahan v. Astrue,

(D.D.C. 2011). In making this determination, the ALJ

may call upon a vocational expert (“VE”) to testify at the administrative hearing. Callahan, 786

F. Supp. 2d. at 90.

B. Plaintiff’s Disability Claims and Procedural History

Plaintiff filed applications for DIB and SSI benefits on September 6, 2017. ECF No. 11-2

at 13. At the time of his application, Plaintiff was thirty-four years old. Id. at 33. Plaintiff has a

GED. Id. at 33-36. From 2012 through 2017, Plaintiff held a variety of positions, including as a

busser and street sweeper. Id.

Plaintiff alleged his disability began on August 9, 2017. ECF No. 11-3 at 2. Plaintiff’s

claims were based on both physical and mental impairments. His physical impairments include

cervical sprain, thoracic sprain, lumbar sprain, right shoulder sprain, and obesity. His mental

impairments include post-traumatic stress disorder, panic disorder without agoraphobia,

intermittent explosive disorder, bipolar disorder, dual role transvestism, and major depressive

3 disorder.3 ECF No. 11-2 at 16. The Commissioner denied Plaintiff’s claims initially on April 20,

2018. Id. at 12. Plaintiff filed for reconsideration on May 21, 2018, and the Commissioner denied

reconsideration on August 23, 2018. ECF No. 13-1 at 1. On October 22, 2018, Plaintiff filed a

written request for a hearing, which the ALJ held on November 6, 2019. ECF No. 11-2 at 13.

C. The November 2019 Administrative Hearing

At the hearing, the ALJ heard testimony from Plaintiff and a VE. Plaintiff testified as to

his physical and mental impairments. With respect to his mental impairments, Plaintiff described

episodes of explosive anger and multiple suicide attempts. Id. at 44-46. He explained that he has

been receiving treatment for his mental health since 2015. Id. at 37-39. Even so, Plaintiff noted

that he still has suicidal thoughts and sees a therapist once a week and a psychiatrist once or twice

a month. Id. at 46. Plaintiff testified that the medication he takes for depression helps him go to

sleep, but that it is otherwise ineffective. Id. at 42. Additionally, Plaintiff described that he

experiences racing thoughts that affect his memory and concentration. Id. at 44.

As to his physical ailments, Plaintiff testified that he experiences burning sensations in his

lower back that extend to his legs. Id. at 51-53. Plaintiff testified that he can only stand for two

hours before getting a sharp pain in his foot, and that he can sit for two hours before needing to

change positions. Id. at 59. Plaintiff noted that he can walk “a couple of blocks” and lift

approximately fifteen pounds. Id.

The ALJ then heard from the VE. Id. at 60. The ALJ asked the VE a series of hypothetical

questions about an individual of the same age, education, and work experience as Plaintiff. Id. at

3 Plaintiff was also diagnosed with hypertension and hypothyroidism, but the ALJ noted that Plaintiff was able to control these conditions with medication throughout the relevant period. ECF No. 11-2 at 15. Thus, the ALJ found that there was no evidence of any limitations associated with either condition that would result in “more than minimal limitations on the claimant’s ability to perform basic work activities.” Id. 4 61. The ALJ asked the VE if the hypothetical individual with the RFC the ALJ formulated could

perform Plaintiff’s past relevant jobs. Id. The VE testified that the individual could not perform

any of the Plaintiff’s past jobs. Id. The ALJ then asked if there were jobs in the national economy

that the hypothetical individual could perform. Id. at 62. The VE found that there were light,

unskilled jobs that an individual with the proposed RFC could perform. Id.

D. The ALJ’s Decision The ALJ issued her decision on December 2, 2019, finding that Plaintiff was not disabled.

Id. at 14. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since October 1, 2017. Id. at 15. At step two, the ALJ found that Plaintiff had the following severe

impairments: (1) post-traumatic stress disorder; (2) panic disorder without agoraphobia; (3)

intermittent explosive disorder; (4) bipolar disorder; (5) dual role transvestism; (6) major

depressive disorder; (7) cervical sprain; (8) thoracic sprain; (9) lumbar sprain; (10) right shoulder

sprain; and (11) obesity. Id. at 16. The ALJ noted that Plaintiff had also been diagnosed with

hypertension and hypothyroidism, but Plaintiff could control those impairments through

medication. Id.

At step three, the ALJ found that Plaintiff’s mental and physical health impairments did

not meet or medically equal the severity of any of the impairments in the Listings. Id. Specifically,

the ALJ considered Listings 1.02,4 1.04,5 12.04, 12.06, 12.08, and 12.15.6 Id. The ALJ first found

4 Under Listing 1.02 (Major Dysfunctions of a Joint), the ALJ evaluated whether Plaintiff provided sufficient evidence of impairment of a major peripheral weight-bearing joint (Subpart A) or a major peripheral joint in each upper extremity (Subpart B). 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.02. 5 Under Listing 1.04 (Disorders of the Spine), the ALJ evaluated whether Plaintiff provided sufficient evidence of nerve root compression (Subpart A), spinal arachnoiditis (Subpart B), or lumbar spinal stenosis (Subpart C). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04 (now codified under Listings 1.15 and 1.16). 6 Listing 12.04 includes “depressive, bipolar and related disorders.” 20 C.F.R. Pt. 404, Subpt. P., App. 1, Pt. A-2 (2017). Listing 12.06 includes “anxiety and obsessive-compulsive 5 that Plaintiff’s physical impairments did not meet Listings 1.02 and 1.04 because Plaintiff’s upper

extremity impairment only affected his right shoulder, and there was no evidence of nerve root or

spinal cord impingement. Id. The ALJ then found that Plaintiff’s mental impairments did not

satisfy the “paragraph B” criteria of Listings 12.04, 12.06, 12.08, and 12.15 because Plaintiff had

only moderate limitations in the four areas of mental functioning. Id. at 16-17. As to “paragraph

C” under the relevant Listings, the ALJ determined that Plaintiff’s mental impairments did not

qualify as “serious and persistent,” because it requires a medically-documented history of the

existence of the disorder over a period of at least two years. Id. at 17.7

At step four, the ALJ determined that Plaintiff had the RFC to perform light work with the

following limitations:

[Plaintiff] can never climb ladders, ropes, or scaffolding. The claimant can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. [He] can occasionally reach overhead with the right upper extremity. [He] can frequently finger and handle objects with the right upper extremity. The claimant must avoid concentrated exposure to temperature extremes and all exposure to unprotected heights and dangerous moving machinery. The claimant can understand, remember, and carry out unskilled simple, routine, and repetitive tasks that are not fast-paced or do not have high production quotas. [He] can never interact with the general public. [He] can occasionally interact with supervisors and coworkers, but the interaction cannot be close. The claimant can work in proximity to others, but not on joint or shared tasks.

Id. at 17-18. At step five, considering Plaintiff’s age, education, work experience, and RFC, the

ALJ determined that there were a significant number of jobs in the national economy that Plaintiff

could perform. Id. at 22.8

disorders.” Id. Listing 12.08 includes “personality and impulse-control disorders.” Id. Listing 12.15 includes “trauma-and stressor-related disorders.” Id. 7 See discussion infra pp. 12-17. 8 When assessing Plaintiff’s RFC in conjunction with steps four and five, the ALJ considered “all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” ECF No. 11-2 at 18. The ALJ also reviewed opinion evidence as to Plaintiff’s physical impairments from the following: Drs. 6 Plaintiff appealed the ALJ’s decision. The Appeals Council denied that appeal on June 26,

2020. Id. at 2-4.

LEGAL STANDARD

A federal district court has jurisdiction over a challenge to the final decision of the

Commissioner.

(g). A reviewing court must affirm the Commissioner’s decision

if it is based on substantial evidence in the record and the correct application of the relevant legal

standards. Id.; Butler,

; Smith v. Bowen,

(D.C. Cir. 1987).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Butler,

(quoting Richardson v. Perales,

(1971)). This standard “‘requires more than a scintilla, but can be satisfied by

something less than a preponderance of the evidence.’” Fla. Mun. Power Agency v. FERC,

(D.C. Cir. 2003) (quoting FPL Energy Me. Hydro LLC v. FERC,

,

1160 (D.C. Cir. 2002)). Ultimately, substantial evidence is a “low bar,” Louisiana Pub. Serv.

Comm’n v. FERC,

(D.C. Cir. 2021) and “requires considerable deference to the

decision rendered by the ALJ.” Crosson v. Shalala,

(D.D.C. 1995).

On review, a court may not reweigh the evidence. Butler,

. Instead, it is

the court’s role to “carefully scrutinize the entire record to ensure that the Commissioner, through

the ALJ, has both analyzed all of the evidence available and has sufficiently explained his/her

reasoning and the weights given to the facts.” Pinkney v. Astrue,

(D.D.C.

2009). In performing this role, the court must “. . . be mindful of the harmless-error rule.

Veronica Bedeau, Jacqueline McMorris, and Ikechi Nnawuchi, Plaintiff’s treating physician.

. The ALJ reviewed opinion evidence as to Plaintiff’s mental impairments from the following: Nancy Hesier, Ph.D., Patricia Cott, Ph.D., and Ikechi Nnawuchi, M.D.

. The ALJ did not give specific evidentiary weight to any prior administrative medical finding or opinion and did not find the opinion of Dr. Nnawuchi persuasive.

.

7 Consequently, even if [the court] perceive[s] error,” it must “affirm the Commissioner’s decision

unless the error is prejudicial.” Saunders v. Kijakazi,

(D.C. Cir. 2021) (internal citation

omitted).

“‘[P]laintiff bears the burden of demonstrating that the Commissioner’s decision [is] not

based on substantial evidence or that incorrect legal standards were applied.’” Settles v. Colvin,

(D.D.C. 2015) (quotation omitted).

DISCUSSION

Plaintiff advances four arguments in favor of reversing the ALJ’s decision: (1) the ALJ

failed to afford controlling weight to Plaintiff’s treating psychiatrist; (2) the ALJ was incorrect

when she found that Plaintiff’s mental impairments did not meet the Listings; (3) the RFC which

the ALJ formulated failed to address all of Plaintiff’s mental and physical limitations; and, (4) the

Commissioner failed to demonstrate that there are jobs in the national economy that Plaintiff can

perform despite his physical and mental limitations.

I. The ALJ was Not Required to Give Controlling Weight to the Opinion of Plaintiff’s Treating Psychiatrist.

Plaintiff first argues that the ALJ failed to give proper weight to the opinion of Plaintiff’s

treating psychiatrist Dr. Ikechi Nnawuchi. ECF No. 13-1 at 12.9 Plaintiff claims that the ALJ

9 Plaintiff also claims that the Commissioner failed to respond to his argument that the ALJ should have given controlling weight to Dr. Nnawuchi, and therefore, the Court should consider this argument conceded. ECF No. 17 at 4. This is incorrect. Far from conceding Plaintiff’s argument, the Commissioner responded directly to Plaintiff’s assertions. See ECF No. 15 at 13 (“The revised regulations have eliminated deference to the claimant’s treating doctor and explain that ALJs will not assign specific evidentiary weight to any medical opinion.”). In any event, it is within the Court’s discretion whether to treat an argument as conceded, and given the applicable SSA regulations directly on point, the Court declines to do so here. See Texas v. United States,

(D.C. Cir. 2015) (“[Local Rule 7(b)] is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded.”) (emphasis added). 8 failed to follow the relevant regulations and impermissibly disregarded Dr. Nnawichi’s findings

that Plaintiff had marked limitations in mental functioning. ECF No. 17 at 4;

.1520c (outlining how the SSA weighs medical opinions and findings). The Commissioner

contends that the Agency’s regulations, as revised, eliminate deference to treating physicians and

mandate that an ALJ is not required to assign specific evidentiary weight to any particular medical

opinion. ECF No. 15 at 11;

.1520c, 416.920c (regulations governing claims filed

on or after March 27, 2017). According to the Commissioner, the ALJ appropriately considered

and rejected Dr. Nnawuchi’s findings.

. The Court agrees with the Commissioner.

Prior to 2017, SSA regulations required ALJs to give “controlling weight” to treating

physicians’ opinions as long as they were consistent with the record.

(d)(2);

Butler,

(explaining the “treating physician rule”). This is not the case, however,

for claims filed after March 27, 2017. Under the revised regulations, 20 C.F.R. Sections 404.1520c

and 416.920c, an ALJ shall not give specific evidentiary weight to any medical opinion, “including

those from [the claimant’s] medical sources.”

.1520c(a). 10 Instead, the ALJ must

decide how persuasive she finds all medical opinions according to five factors: (1) supportability;

(2) consistency; (3) the medical source’s relationship with the claimant; (4) specialization; and (5)

“other factors that tend to support or contradict a medical opinion.”

§ 404.1520c(b)-(c). When

evaluating the persuasiveness of a particular medical opinion, the most important factors for an

ALJ to consider are supportability and consistency. See id. § 404.1520c(b)(2).

10 Under the new regulations, even if an ALJ finds a medical opinion persuasive, the ALJ is not obligated to accept every part of the opinion. See, e.g., Massicotte v. Comm’r of Soc. Sec., No. 20-cv-2923,

, at *5 (M.D. Fla. July 11, 2022) (“[T]he ALJ need not adopt every part of an opinion he or she finds persuasive.”); McClure v. Saul, No. 20-cv-150,

, at *7 (E.D. Mo. Aug. 30, 2021) (similar). The ALJ, however, must “provid[e] a sufficient basis for this Court to understand his reasoning when viewing the decision as a whole.” Colter v. Kijakazi, No. 20-cv-632,

, at *11 (D.D.C. Mar. 10, 2022). 9 Plaintiff’s argument that the “independent treating physician rule . . . still applies despite

Social Security’s revised regulations” is incorrect. ECF No. 17 at 4. Because Plaintiff filed his

claims on September 6, 2017, after the new regulations took effect, the treating physician rule is

not applicable. See

.1520c(a); see also Harner v. SSA,

(11th

Cir. 2022) (holding that the revised regulation supersedes the previous judicial interpretation of

the older rule); De Deaux v. Kijakazi, No. 21-CV-682,

, at *3-4 (D.D.C. Oct.

25, 2022) (applying revised regulations where a claimant filed a claim after March 27, 2017).

Therefore, the Court’s inquiry turns on whether the ALJ appropriately considered the opinion of

Dr. Nnawuchi under the new regulations.

Dr. Nnawuchi’s findings, memorialized in a September 2019 mental capacity check sheet,

reflected that Plaintiff had marked or extreme limitations in almost all of his mental capabilities.

ECF No. 11-11 at 116-19. In her decision, the ALJ determined that these findings were only

partially consistent with the record for four reasons. ECF No. 11-2 at 20-21. First, the ALJ

reasoned that Dr. Nnawuchi did not provide support for his findings on the mental capacity check

sheet.

Second, the ALJ noted that the treatment record contradicted Dr. Nnawuchi’s findings

as the record reflected that Plaintiff’s mental status exams “were generally fair and without

significant problems noted.”

. Third, Dr. Nnawuchi failed to address Plaintiff’s

noncompliance with his medication and its effect on Plaintiff’s mental functioning.

Specifically, the ALJ noted that “Dr. Nnawuchi does not acknowledge that the claimant

consistently reported that [his] mental impairments worsened off [his] medication.”

Fourth,

the ALJ discounted Dr. Nnawuchi’s findings because “there is no evidence [Dr. Nnawuchi] is

familiar with the Social Security disability assessment.”

10 At the same time, the ALJ discussed why she found the opinions of the state agency

medical consultants, Nancy Heiser, Ph.D., and Patricia Cott, Ph.D., persuasive.

Both Dr.

Heiser and Dr. Cott found that Plaintiff had moderate restrictions in functioning and could perform

simple instructions and tasks that do not require extensive interaction with the public.

The

ALJ reasoned that their opinions reflected the findings in Plaintiff’s mental health treatment notes.

The ALJ also included additional restrictions, beyond those determined by the medical

consultants, based on Plaintiff’s hearing testimony.

Thus, the ALJ appropriately evaluated the medical opinions at issue and sufficiently

explained the weight she afforded to each. See

.1520c(a). The ALJ adequately

articulated her rationale for weighing certain reports more heavily than others. ECF No. 11-2 at

20. As such, there is substantial evidence in the record to support the ALJ’s findings as to

Plaintiff’s limitations. See ECF No. 15 at 14-15 (citing to Plaintiff’s treatment notes whereby

Plaintiff appeared well groomed, neat, and clean, with a cooperative attitude, normal speech,

logical/coherent thought process, intact associations, appropriate thought content, and fair insight

and judgment, among other things). Despite Plaintiff’s arguments, the Court “cannot . . . reweigh

the evidence and replace the [ALJ’s] judgment regarding the weight of the evidence with its own.”

Cunningham v. Colvin,

(D.D.C. 2014) (quoting Brown v. Barnhart,

(D.D.C. 2005)); see also Thigpen v. Colvin,

(D.D.C.

2016) (“the undersigned, in keeping with the applicable standard in this Circuit, ‘is highly

deferential to the agency fact-finder,’ here, the ALJ.”) (quoting Settles v. Colvin,

(D.D.C. 2015)).

11 II. The ALJ Erred in Her Assessment of Plaintiff’s Claims Under Listings 12.04, 12.06, 12.08, and 12.15.

Step three of the sequential analysis requires an ALJ to determine whether a claimant’s

alleged disability meets or is medically equivalent to an impairment in the Listings.

(a)(4)(iii). If so, the claimant is presumptively disabled.

Plaintiff argues that the ALJ

erred in finding that Plaintiff’s mental impairments did not meet either “paragraph B” or

“paragraph C” of the Listings, specifically Listings 12.04 (depressive, bipolar and related

disorders), 12.06 (anxiety and obsessive-compulsive disorders), 12.08 (personality and impulse-

control disorders), and 12.15 (trauma and stressor-related disorders). See ECF No. 13-1 at 25, 32.

The Commissioner responds that there is substantial evidence to support the ALJ’s findings that

Plaintiff’s mental impairments did not meet the Listings in paragraph B or paragraph C. ECF No.

15 at 26. The Court agrees with Plaintiff as to the ALJ’s analysis of the paragraph C criteria.

A. There is Substantial Evidence to Support the ALJ’s Conclusion That Plaintiff Did Not Meet the “Paragraph B” Criteria of the Listings.

Under the Listings for mental health impairments, “paragraph B” of mental disorders

outlines four functional criteria, also known as areas of mental functioning, used to assess mental

disorders. 20 C.F.R. pt. 404, subpt. P., app. 1 §§ 12.04, 12.06, 12.08, 12.15. The criteria are

“understand, remember, or apply information”; “interact with others”; “concentrate, persist, or

maintain pace”; and “adapt or manage oneself.” Id. To satisfy the paragraph B criteria, the mental

disorders must cause “extreme” limitation of one, or “marked” limitation of two of the areas of

mental functioning. Id.

The criteria for the Listings in step three “are more restrictive than the statutory disability

standard,” as the plaintiff must establish that her impairments are “severe enough to prevent a

person from doing any gainful activity.” Sullivan v. Zebley,

(1990) (quoting

(a)) (emphasis added). In reviewing the ALJ’s decision at step three, a “Court is

12 not confined to the ALJ’s analysis at step three and instead must consider the reasoning provided

by the ALJ in the decision in its entirety.” Gibson v. Kijakazi, No. 1:21-CV-660-ZMF,

, at *4 (D.D.C. Nov. 23, 2022) (citing Al Hulais v. Comm’r. of Soc. Sec. Admin., No. 18-

cv-118,

, at *6 (D. Md. Dec. 20, 2018)). Though “the ALJ need not articulate

his reasons for rejecting every piece of evidence, he must at least minimally discuss a claimant’s

evidence that contradicts the Commissioner’s position.” Lane-Rauth v. Barnhart,

(D.D.C. 2006) (quoting Godbey v. Apfel,

(7th Cir. 2000)). The ALJ must

indicate not only “‘what evidence was credited, but also whether other evidence was rejected,’

rather than simply ignored.” Gibson,

, at *6 (quoting Brown v. Bowen,

(D.C. Cir. 1986)).

Plaintiff argues that the ALJ erred in finding that he had only moderate limitations in

mental functioning. ECF No. 13-1 at 25. The Commissioner responds that the ALJ’s conclusion

should not be disturbed because it was supported by substantial evidence. ECF No. 15 at 26. The

Court agrees with the Commissioner.

The ALJ made a number of relevant findings on this issue. First, the ALJ found that the

Plaintiff had a moderate limitation in his ability to “understand, remember, or apply information”

because the mental status exams throughout the record demonstrated that Plaintiff’s memory was

fair and intact. ECF 11-2 at 16. The ALJ noted that Plaintiff exhibited poor to fair insight and

judgment.

Second, as to Plaintiff’s ability to “interact with others,” the ALJ found that the

Plaintiff had a moderate limitation because the Plaintiff exhibited a “constricted affect with

anxious mood” during some mental status examinations. Id. at 17. As to Plaintiff’s ability to

“concentrate, persist, or maintain pace,” the ALJ found that the Plaintiff had a moderate limitation

because the Plaintiff was “engaged and cooperative” with a fair attention span and concentration

13 during therapy and mediation appointments. Id. Finally, as to Plaintiff’s ability to “adapt or

manage oneself,” the ALJ found that the Plaintiff had a moderate limitation because the Plaintiff

exhibited “hyperactive psychomotor activity.” Id. The ALJ also referred to the Plaintiff’s

psychiatrist’s notes indicating his inconsistent therapy attendance. Id. The ALJ explained that her

conclusion that the Plaintiff has moderate limitations in the four areas of mental functioning was

based on Plaintiff’s treatment records. ECF No. 11-2 at 16-17. The ALJ also relied upon the

findings of the state agency psychological consultants, Drs. Heiser and Cott, who both determined

that Plaintiff did not meet a Listing. Id. at 16. As noted above, this is supported by the record, as

Plaintiff was routinely observed to have a cooperative attitude, normal speech, logical/coherent

thought process, intact orientation, fair memory, fair attention span and concentration, and fair

language. See ECF No. 15 at 25. Thus, there is substantial evidence to support the ALJ’s

conclusion that Plaintiff had only moderate limitations in the four areas of mental functioning.

B. The ALJ’s Conclusion That Plaintiff Did Not Meet the “Paragraph C” Criteria of the Listings is Not Supported by Substantial Evidence.

“Paragraph C” of the Listings refers to the criteria used to evaluate the “serious[ness] and

persisten[ce]” of certain mental disorders. 20 C.F.R. pt. 404, subpt. P., app. 1 §§ 12.04, 12.06,

12.15. To satisfy paragraph C, a claimant must show: that the disorder in the listing category is

serious; that it persisted over a period of at least two years; that it was treated during that period;

and that, due to the disorder, the claimant has a “minimal capacity to adapt to changes” in his

environment or new demands that are not already part of his daily life. See 20 C.F.R. Pt. 404,

Subpt. P., App. 1 §§ 12.04, 12.06, 12.15.

Plaintiff argues that the ALJ erred at step three by ignoring evidence in the record that

reflected that Plaintiff’s mental impairments were serious and persistent. ECF No. 13-1 at 32. The

14 Commissioner responds that the ALJ’s conclusion is supported by substantial evidence. ECF No.

15 at 26. The Court agrees with Plaintiff.

The ALJ’s discussion of the paragraph C criteria under listings 12.04, 12.06, 12.08, and

12.15 is perfunctory at best:

In this case, the evidence fails to establish the presence of the “paragraph C” criteria. The claimant’s mental impairments have not required at least two years of medical treatment or other structured setting to diminish the symptoms of the mental disorder with only minimal capacity to adapt to changes.

ECF No. 11-2 at 17.

The ALJ’s discussion of paragraph C is devoid of analysis and precludes meaningful

review. See Lane-Rauth,

(“[Although] the ALJ need not articulate his

reasons for rejecting every piece of evidence, he must at least minimally discuss a claimant’s

evidence that contradicts the Commissioner’s position.”). As Plaintiff notes, the ALJ ignored

substantial evidence in the record that Plaintiff had a serious and persistent disorder for which he

sought treatment for more than two years. ECF No. 13-1 at 33-34; ECF No. 17 at 15-16.

Specifically, Dr. Nnawuchi, Plaintiff’s treating psychiatrist, began treating Plaintiff in November

2015. ECF No. 11-9 at 104-105. Although this fact contradicts the ALJ’s assertion that Plaintiff’s

mental impairments “have not required at least two years of medical treatment,” she failed to

address this record evidence. ECF No. 11-2 at 17. Further, the medical record reflects that

Plaintiff’s psychiatric symptoms presented when Plaintiff was eleven years old during a

hospitalization for suicidal ideations. ECF No. 13-1 at 34. In addition, Plaintiff testified that he

has been receiving mental health treatment since 2012. ECF No. 11-2 at 55 (“So I’ve been actually

getting mental health treatment since I’ve been home, since 2012.”).

The Commissioner does not address the ALJ’s failure to comprehensively consider this

record evidence. Instead, the Commissioner offers a series of post hoc rationalizations, effectively

15 assuming the role of the ALJ. ECF No. 15 at 25-26. These rationales are insufficient to explain

the ALJ’s decision. See Cooper v. Berryhill, No. 16-1671 DAR,

, at *5 (D.D.C.

Sept. 28, 2017) (prohibiting the Commissioner from offering “post-hoc rationalization[s]” to

support the ALJ’s decision). The ALJ failed to engage with or acknowledge the pertinent evidence

in any meaningful way. Nor did she provide even “a breath of explanation” as to why she rejected

the record evidence on this point. See Brown,

(“The judiciary can scarcely perform

its assigned review function, limited though it is, without some indication not only of what

evidence was credited, but also whether other evidence was rejected rather than simply ignored.”);

see also Gibson v. Kijakazi, No. 1:21-CV-660-ZMF,

, at *6-7 (D.D.C. Nov.

23, 2022 (finding that, although an ALJ need not spell out every aspect of a Listing, his discussion

of the evidence must not be superficial).

Because the ALJ’s error on this issue precludes meaningful judicial review, remand is

required. See Ademakinwa v. Astrue,

(D.D.C. 2010) (citation omitted)

(finding remand appropriate where the court cannot discern “the ALJ’s rationale . . . without further

findings or clearer explanation for the decision.”); Wells v. Astrue, No. 02–1357,

, at *7 n.5 (D.D.C. July 30, 2009) (“When the evidence in the administrative record clearly

generates an issue as to a particular listing and the ALJ fails to . . . explain clearly the medical

evidence of record supporting the conclusion reached[,] a remand can be expected to result.”).

III. The ALJ Erred in Determining that Plaintiff’s Subjective Complaints Were Only Partially Consistent With the Entire Record.

Plaintiff claims that the ALJ ignored his subjective statements about his pain and the

limiting effects of his physical and mental conditions. ECF No. 13-1 at 34-35, 41. Specifically,

Plaintiff argues that the ALJ misstated the record and placed undue weight on Plaintiff’s occasional

noncompliance with medication and treatment.

. The Commissioner argues that the

16 ALJ’s conclusion that Plaintiff’s subjective statements were only partially consistent with the

record was supported by substantial evidence. ECF. No. 15 at 17-18. The Commissioner also

argues that the ALJ appropriately considered Plaintiff’s noncompliance with medication and

treatment.

. The Court agrees with Plaintiff as to the ALJ’s assessment of his

subjective mental health complaints.

ALJs are required to follow a two-step process when evaluating the intensity and

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

claimant’s ability to work.

(c)(1). First, the ALJ must determine whether

there are “medically determinable impairment(s) that could reasonably be expected to produce . .

. symptoms, such as pain.”

Second, the ALJ must “evaluate claimant’s statements as well as

‘all [of] the available evidence,’ including ‘claimant’s medical history, medical signs and

laboratory findings; objective medical evidence of pain; the medical opinions of the claimant’s

treating physician[s]; and any other evidence that bears on the severity of the pain.’” Troy v.

Colvin,

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

). “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.’” McCormick v. Saul, No. 18-cv-1704,

, at *9

(D.D.C. June 25, 2021) (quoting Butler,

)).

At step one, the ALJ found that Plaintiff had medically-determinable physical and mental

impairments. ECF No. 11-2 at 18. At step two, the ALJ determined that “the claimant’s statements

concerning the intensity, persistence, and limiting effects of these symptoms are partially

consistent with the entire record.”

17 In support of this finding as to physical impairments, the ALJ noted Plaintiff’s normal x-

ray exams, Plaintiff’s physical therapy and chiropractic treatment, and overall conservative

treatment. Id. at 19. The ALJ further noted that “[e]xams showed some restriction in movement;

however, the claimant remained capable of ambulating and had full use of all extremities.” Id. In

addition, the ALJ relied upon the state agency consultants, Dr. Veronica Bedeau and Dr. Jacqueline

McMorris, whose opinions the ALJ found persuasive. Id. Both consultants determined that

Plaintiff was capable of light work based on a review of the medical record. Id. at 20. The ALJ

did not rely solely on the findings of the consultative examiners, as she added “additional

restrictions in functioning . . . based on new evidence and the claimant’s testimony.” Id. Last, the

ALJ considered “the aggravating effect of the claimant’s obesity on [his] musculoskeletal

impairments” and Plaintiff’s body mass index. Id. The ALJ concluded that Plaintiff’s physical

impairments were not as limiting as Plaintiff alleged. Id.

Regarding Plaintiff’s mental impairments, the ALJ based her opinion on the following:

The claimant’s mental impairments caused restrictions in [his] mental functioning. But the claimant’s failure to regularly follow-up for treatment or take [his] medications as prescribed suggest that [his] symptoms were not as limiting as [he] alleges. Further, the claimant reported improvement in symptoms when [he] was taking [his] medications. It is reasonable to assume that if the claimant’s symptoms were as severe as alleged and [his] medications were successful in addressing these symptoms, the claimant would have regularly attended [his] medication management sessions and taken [his] medication as prescribed. There is no evidence of financial restrictions, side effects, or other issues that prevented the claimant from continuing treatment.

Id. at 18.

A. The ALJ Properly Considered Plaintiff’s Subjective Complaints as to Plaintiff’s Physical Impairments.

There is substantial evidence to support the ALJ’s finding that Plaintiff’s physical

complaints were only partially consistent with the record. See Callaway v. Berryhill,

(D.D.C. 2018) (finding that the ALJ did not improperly reject subjective complaints

based on a lack of objective evidence where the ALJ considered the plaintiff’s statements, the

objective medical evidence, the opinion evidence, and the plaintiff’s hearing testimony). The ALJ

relied upon and was persuaded by objective findings in the record, including treatment records and

imaging studies demonstrating that Plaintiff “remained capable of ambulating and had full use of

all extremities.” ECF No. 11-2 at 19. Moreover, the ALJ relied upon the opinions of the state

agency medical consultants.

. A review of the record confirms the ALJ’s findings. See

e.g., ECF No. 11-7 at 3 (“Pt appears to have symptoms consistent with low risk back pain);

(normal imaging findings). The ALJ also included additional physical limitations when

formulating Plaintiff’s RFC based on more recent evidence and Plaintiff’s hearing testimony. ECF

No. 11-2 at 20.

B. The ALJ Improperly Considered Plaintiff’s Subjective Complaints as to Plaintiff’s Mental Impairments.

In challenging the ALJ’s analysis of Plaintiff’s subjective complaints as to his mental

limitations, Plaintiff argues that the ALJ erred in placing undue weight on Plaintiff’s

noncompliance with treatment and failed to explore the reasons for his noncompliance. ECF No.

13-1 at 21-22. Specifically, Plaintiff claims that the ALJ “egregiously misstated the dates and

frequency of [Plaintiff’s] mental health treatment to support her conclusion that [Plaintiff] was

non-compliant” and then “drew unsupportable speculative conclusions from her distorted view of

the factual record.”

. The Commissioner responds that the ALJ did not rely solely on

Plaintiff’s treatment noncompliance as a basis for discrediting Plaintiff’s subjective complaints

and that substantial evidence supports the ALJ’s decision. ECF No. 15 at 21. The Court agrees

with Plaintiff.

19 In finding Plaintiff’s subjective complaints only partially consistent with the record, the

ALJ relied substantially on Plaintiff’s noncompliance with treatment. ECF No. 11-2 at 19 (“[I]f

the claimant’s symptoms were as severe as alleged and [his] medications were successful in

addressing these symptoms, the claimant would have regularly attended [his] medication

management sessions and taken [his] medication as prescribed.”). Specifically, the ALJ stated that

“[t]he claimant was seen in July and August 2017 by Ikechi Nnawuchi, M.D. for medication

management. [. . .] He did not appear again until January 2018. The claimant had not been taking

[his] medications. [. . .] After February 2018, the claimant was not seen again until August 2019.”

.

An ALJ may rely on an individual’s “fail[ure] to follow prescribed treatment that might

improve symptoms” to “find the alleged intensity and persistence of an individual’s symptoms are

inconsistent with the overall evidence of record.” Titles II and XVI: Evaluations of Symptoms in

Disability Claims, SSR 16-3p [hereinafter SSR 16-3p],

, at *9 (S.S.A. Oct. 25,

2017); see also Orn v. Astrue,

(9th Cir. 2007) (“Our case law is clear that if a

claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed

treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified

or exaggerated.”); Washington v. Saul, No. 20-cv-662,

, at *8 (D.D.C. June 18,

2021) (relying on plaintiff’s noncompliance with treatment to support the determination that the

plaintiff’s subjective complaints were not consistent with other record evidence). Even so, the

ALJ must “review the case record to determine whether there are explanations” for a claimant’s

failure or inability to comply with treatment. SSR 16-3p at *10. Importantly, SSA regulations

dictate that an ALJ must interrogate whether any purported noncompliance with mental health

20 treatment is itself a symptom of a claimant’s ailments. 20 C.F.R. Part 404, Subpart P, App’x 1, §

12.00(G)(2)(b).11

The ALJ erred in two ways. First, the ALJ misstated the record as to Plaintiff’s

noncompliance with treatment. ECF No. 13-1 at 22. The record reflects that Plaintiff appeared

for appointments with Dr. Nnawuchi on August 25, 2017, January 29, 2018, February 23, 2018,

and July 8, 2019, as well as psychiatric counseling with licensed clinical social workers throughout

the period in which the ALJ determined that Plaintiff “show[ed] significant issues with treatment

compliance.” ECF No. 11-9 at 2-27; ECF No. 11-10 at 110-140. In fact, Plaintiff appeared for

appointments with clinical social workers on four separate occasions during this time. ECF No.

11-11 at 89-91, 92-96, 97-101, 102-109. The Commissioner attempts to mitigate the ALJ’s error

by suggesting that the ALJ was only referring to Plaintiff’s failure to attend medication

management appointments with Dr. Nnawuchi. ECF No. 15 at 21. But the language of the ALJ’s

decision is broader. ECF No. 11-2 at 18 (citing “significant issues with treatment compliance since

the alleged onset date.”). This error warrants remand, as the ALJ largely relied upon Plaintiff’s

purported noncompliance in discrediting Plaintiff’s subjective complaints. See ECF No. 11-2 at

19 (“The claimant’s mental impairments caused restrictions in [his] mental functioning. But the

claimant’s failure to regularly follow-up for treatment or take [his] medications as prescribed

suggest that [his] symptoms were not as limiting as she alleges.”).

11 20 C.F.R. Part 404, Subpart P, App’x 1, § 12.00(G)(2)(b) provides:

We will consider periods of inconsistent treatment or lack of compliance with treatment that may result from your mental disorder. If the evidence indicates that the inconsistent treatment or lack of compliance is a feature of your mental disorder, and it has led to an exacerbation of your symptoms and signs, we will not use it as evidence to support a finding that you have not received ongoing medical treatment as required by this paragraph. 21 Second, the ALJ failed to adequately consider the reasons underlying Plaintiff’s

noncompliance with treatment. Although the record reflects that Plaintiff failed to take prescribed

medication at various points and failed to appear for medication management appointments

between March 2018 and June 2019, the ALJ’s decision only nominally references how Plaintiff’s

underlying condition contributed to noncompliance with treatment:

If the claimant’s symptoms were as severe as alleged and [his] medications were successful in addressing these symptoms, the claimant would have regularly attended [his] medication management sessions and taken [his] medication as prescribed. There is no evidence of financial restrictions, side effects, or other issues that prevented the claimant from continuing treatment.

Id.

The ALJ failed to conduct any meaningful inquiry into Plaintiff’s alleged noncompliance

and how such an inability to follow the treatment prescribed could be a symptom of his mental

impairments.12 Given the ALJ’s failure to raise Plaintiff’s noncompliance at the hearing, the ALJ’s

statement that there is no evidence of “financial restrictions, side effects or other issues that

prevented the claimant from continuing treatment” is conclusory and not supported by the record.

Indeed, the record contains examples that Plaintiff’s treatment noncompliance is itself a symptom

of his ailments. See, e.g., ECF No. 11-11 at 81. On balance, by misstating the record and failing

12 Plaintiff argues that the ALJ was “required to make an extensive inquiry into the circumstances surrounding Mr. Odom’s purported noncompliance.” ECF No. 13-1 at 23 (citing Jackson v. Barnhart,

(D.D.C. 2002)). This is incorrect. As the Commissioner correctly notes, such extensive inquiry is only required where an ALJ relies exclusively on noncompliance with prescribed treatment as the basis for the denial of benefits. See Darlene M. v. Kijakazi, No. 20-cv-1817 (RDM/GMH),

, at *22 (D.D.C. Sept. 3, 2021); see also

; Titles II and XVI: Failure to Follow Prescribed Treatment, SSR 82-59,

, at *1 (S.S.A. 1982). That is not the case here, as the ALJ did not find Plaintiff disabled but for failure to follow prescribed treatment. Yet, in this case where the evidence reflects that Plaintiff’s noncompliance was linked to a limitation in Plaintiff’s functioning, the ALJ retains an obligation to determine whether there were explanations for Plaintiff’s failure to abide by prescribed treatment. Darlene M.,

, at *23. 22 to inquire into whether Plaintiff’s mental impairments contributed to his noncompliance with

treatment, the ALJ’s evaluation of Plaintiff’s subjective complaints falls short. The ALJ must

consider the record evidence regarding Plaintiff’s noncompliance with his mental health treatment

and, if required, reassess Plaintiff’s RFC accordingly.

IV. The ALJ Did Not Err in Finding That Plaintiff Was Not Disabled at Step Five of the Sequential Evaluation Process.

At step five in the sequential analysis, the burden is on the Commissioner to show that jobs

exist in the national economy that Plaintiff can perform provided certain limitations. Under step

five, an ALJ must take notice of “reliable job information” available from various publications,

including the Dictionary of Occupational Titles (“DOT”).

(d), 416.966(d).

In addition, as provided in

(e) and 416.966(e), “[ALJs] use VEs and VSs

[vocational specialists] as sources of occupational evidence in certain cases.” SSR 00-4p,

(Dec. 4, 2000) (quoting

(e), 416.966(e)) [hereinafter SSR 00-

4p]. If there is a conflict between the DOT and the VE, the ALJ must, “[i]dentify and obtain a

reasonable explanation for any conflicts between occupational evidence provided by VEs or VSs

and information in the Dictionary of Occupational Titles (DOT).” SSR 00-4p.

At the hearing, the VE testified that a person with Plaintiff’s vocational background and

RFC could perform light unskilled jobs such as inspector and sorter (DOT # 529.687-114; 118,000

national positions), stock clerk and order filler (DOT # 209.587-034; 248,000 national positions),

and general production worker (DOT # 222.687-014; 195,000 national positions). ECF No. 11-2

at 62. The VE testified that all three jobs had a Specific Vocational Preparation (SVP) of 2. Id.13

13 Specific vocational preparation is used within the DOT to define the time generally required to learn certain skills for particular jobs. “[U]nskilled work corresponds to an SVP of 1- 2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5- 9[.]” SSR 00-4p, at *3. 23 Moreover, the VE stated her testimony was consistent with the information contained in the DOT.

.

Plaintiff argues there is an unresolved conflict between the VE’s testimony identifying

unskilled jobs and their corresponding DOT definitions which categorize each position as having

a General Educational Development (GED) reasoning level of 2. ECF No. 13-1 at 42-43.

Specifically, Plaintiff claims that the ALJ should have identified jobs with a GED reasoning level

of 1 to align with the ALJ’s RFC limiting Plaintiff to “unskilled simple, routine, and repetitive

tasks.”

. The Commissioner argues that there is no conflict between the VE’s testimony

and DOT reasoning levels because the jobs identified by the VE correlate to Plaintiff’s mental

limitations. ECF No. 15 at 30-32.

Contrary to Plaintiff’s argument that “limitation to simple, routine tasks precludes

performance of a job at GED reasoning level of two,” the VE proffered jobs that were consistent

with Plaintiff’s mental limitations. See, e.g., Lawrence v. Saul,

(4th Cir.

2019) (holding no conflict between the DOT’s Level 2 reasoning and an RFC for “simple, routine,

repetitive tasks of unskilled work”); Moore v. Astrue,

(8th Cir. 2010) (holding

no conflict between jobs with a DOT reasoning Level 2 and an RFC limiting plaintiff to “carrying

out simple job instructions”). Here, the ALJ’s RFC reflected that Plaintiff could only “carry out

unskilled, simple, routine, and repetitive tasks.” ECF No. 11-2 at 18. Therefore, there is no

conflict between the DOT and the VE’s testimony. See Broyles v. Astrue,

(D.D.C. 2012) (holding that three positions with an SVP of 2 were considered unskilled positions

and consistent with the ALJ’s findings about the plaintiff’s mental limitations). Thus, the ALJ

properly demonstrated that there are a significant number of jobs in the national economy that

Plaintiff can perform.

24 CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Reversal is GRANTED with respect to

the ALJ’s consideration of paragraph C of the Listings and the ALJ’s treatment of Plaintiff’s

subjective mental health complaints. These issues are REMANDED to the Social Security

Administration for further proceedings consistent with this Memorandum Opinion. Plaintiff’s

Motion for Reversal is DENIED as to all other issues. For the reasons also stated above,

Defendant’s Motion for Judgment of Affirmance is GRANTED IN PART and DENIED IN

PART.

Date: August 21, 2023 ______________________________ MOXILA A. UPADHYAYA United States Magistrate Judge

25