UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TRACY PIXLEY Plaintiff,

v. No. 23-cv-3626-ZMF KILOLO J. KIJAKAZI, Acting Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION

On February 7, 2019, Plaintiff Tracey Pixley filed for Supplemental Security Income

Benefits (“SSI”). See Admin. R. (“AR”) 18, ECF No. 8.1 An Administrative Law Judge (“ALJ”)

denied her request. AR 15. Ms. Pixley now challenges that decision, claiming that the ALJ

incorrectly found that she was not disabled and failed to include her moderate limitations in his

hypothetical questions to the Vocational Expert (“VE”) when determining her residual functional

capacity (“RFC”). See Pl.’s Mot. for J. of Reversal (“Pl.’s Mot.”) 1, ECF No. 13.

After considering the parties’ submissions and the Administrative Record, the undersigned

recommends that the Court DENY Plaintiff’s Motion for Judgment of Reversal and GRANT

Defendant’s Motion for Judgment of Affirmance.

1 The Administrative Record contains over ninety exhibits. See ECF No. 8. For ease of reference, the citations to the Administrative Record will cite to the consecutive page numbers provided in the lower right-hand corner of each page. 1 I. BACKGROUND

A. Statutory Framework

The Social Security Act provides benefits to individuals with disabilities. See

(a)(1). To claim SSI, a plaintiff must prove that they are “disabled.” An individual is

disabled if they are “unable 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 twelve months.”

§ 1382c(a)(3)(A). The impairment must

render them unable to return to previous work or “engage in any other kind of substantial gainful

work which exists in the national economy.” Id. § 1382c(a)(3)(B).

The Social Security Administration (“SSA”) uses a five-step evaluation process to

determine whether a claimant is disabled, as defined by the Social Security Act. See

(a). The burden of proof rests with the claimant for the first four steps, then shifts to the

SSA for the last step. See Butler v. Barnhart,

(D.C. Cir. 2004). At step one, the

claimant must prove they are not currently engaged in a “substantial gainful activity.”

(a)(4)(i). At step two, the claimant must show that they have a “severe impairment” or a

“combination of impairments” that “significantly limits [their] physical or mental ability to do

basic work activities.”

§§ 416.920(a)(4)(ii), 416.920(c). At step three, the ALJ must determine

whether the claimant’s impairment(s) meets or is equal to one of the criteria listed in Appendix 1.

See id. § 416.920(a)(4)(iii). If the ALJ finds that the claimant meets the requirements, then they

are disabled. See id. If not, then the ALJ proceeds to step four. See id. At step four, the ALJ must

decide if the claimant has “the [residual functional capacity (RFC)] to perform the requirements

of [their] past relevant work.”

(a)(4)(iv), 416.920(f). Put another way, the

ALJ must determine “the most [the claimant] can still do despite [their] limitations.”

§

2 416.945(a)(1) (defining RFC). If the ALJ finds that the claimant has the RFC to return to their

previous work, then they are not disabled. See id. § 416.920(a)(4)(iv). If a claimant cannot return

to their previous work, then the ALJ proceeds to step five. There, the ALJ must determine, based

on the claimant’s RFC, “age, education, and work experience,” whether the claimant can find any

other work in the national economy. Id. § 416.920(a)(4)(v). If the claimant cannot adjust to other

work, then they are disabled. See id.

B. Factual Background

i. Medical Evidence

In 1999, Ms. Pixley was diagnosed with major depressive disorder (“MDD”). See AR 107.

Even with treatment, she still had trouble sleeping, crying spells, and feelings of hopelessness, and

she reported two hospitalizations for attempted suicide. See AR 386, 491–92. She worked as a

cashier for six months in 2003 and six months in 2006. See AR 240, 244, 264. In 2007, Ms. Pixley

was diagnosed with lupus, which causes chronic fatigue, joint pain, facial rashes, and

photosensitivity. See AR 524. Her medical records reflected a hypertension diagnosis in 2013. See

AR 524. In early 2017, Ms. Pixley began work as a cashier once again. AR 244.

In January 2018, Ms. Pixley saw Dr. Gail Kerr, a rheumatologist, for lupus treatment. See

AR 469. She did not follow up and subsequently returned to her primary care provider. See AR

22. For the next year, Ms. Pixley saw multiple healthcare providers for her MDD. See AR 410–

412, 434–455, 469–476. However, she missed treatment sessions and was noncompliant with her

medications due to side effects. See AR 435, 594. In May 2018, she stopped working as a cashier

due to her symptoms. See AR 264.

In June 2020, Ms. Pixley saw Dr. Jett, a psychologist, for a consultative examination to

assess cognitive functioning. See AR 489–96. Ms. Pixley claimed that her family regularly assisted

3 her with daily tasks like cleaning, cooking, and laundry. See AR 495, 579. Overall, Dr. Jett found

that Ms. Pixley’s cognition was likely in the average range and that she had a mild memory

impairment. AR 494. Dr. Jett also found that Ms. Pixley had moderate limitations in interacting

with others and maintaining a consistent pace in completing tasks. See AR 495. In September

2020, Ms. Pixley saw NP Nina Mesadieu for hypertension, reporting an intermittent headache. See

AR 500. NP Mesadieu discussed treatment options and referred Ms. Pixley for MDD treatment.

See AR 500.

ii. Social Security Administration Review

On February 7, 2019, Ms. Pixley filed for SSI. See AR 18. She claimed that her disability

began on June 1, 2018. See AR 18, 231–236. The ALJ held three hearings. See AR 38. At the final

hearing, Ms. Pixley’s attorney argued that Ms. Pixley met two of the criteria listed in Appendix 1

to Subpart P of

, depressive, bipolar and related disorders and anxiety and

obsessive-compulsive disorder. See AR 46. In turn, the ALJ first asked the VE whether being “off

task greater than 10 percent of the time on a regular and consistent basis” or frequently absent

would preclude an individual from employment. AR 47. The VE stated that either would preclude

employment. See AR 48. Next, the ALJ asked about a hypothetical individual with Ms. Pixley’s

background, age, and prior work experience as a cashier, and who had the ability to complete a

full range of physical work so long as it did not require performing “more than simple one to four

step routine repetitive tasks in a low stress work environment.” AR 48. The VE explained that such

an individual could find employment other than as a cashier, such as: a sweeper/cleaner,

inspector/grader, night cleaner, marker, or racker. See AR 48.

Afterwards, Ms. Pixley testified about her pain and symptoms. See AR 50–53. Ms. Pixley

stated that she isolated herself and had a poor appetite. See AR 50. She further stated that she was

4 depressed, had trouble caring for herself and standing for extended periods. See AR 50. She

claimed that outside of her daughter helping her with groceries, she did everything herself. See AR

50. She described her issues with concentration, stating that it was difficult for her to “read two

pages in a book without losing [her] focus” and that she had trouble keeping track of time. AR 51.

Additionally, she claimed that she stopped taking her antidepressants because it “[made] her

symptoms worse,” and caused dizziness. AR 52. Lastly, she stated that she “[thought] about people

dying [or] trying to kill her,” and had nightmares. AR 53. However, there were no expert medical

opinions supporting these claims, leading the ALJ to order an internal medicine exam to assess

Ms. Pixley’s lupus and hypertension. See AR 54. The ALJ also ordered a consultative exam to

assess her cognitive functioning. See AR 54.

Ms. Pixley saw NP Ellison-Ruddock for the internal medicine exam. See AR 567–581.

There, Ms. Pixley complained of back and leg pain, and reported that her last lupus flare up had

been two or three years prior. See AR 568. NP Ellison-Ruddock found no lupus or hypertension

symptoms and concluded that Ms. Pixley had “no physical impairments.” See AR 570, 581.

Ms. Pixley saw Dr. Williams for the consultative exam. See AR 54, 582–605. Ms. Pixley

could complete simple calculations and serial 7s “very slowly.” AR 584, 596. Dr. Williams

concluded that Ms. Pixley’s memory was “mildly impaired due to emotional distress secondary to

depression,” AR 584; and her intellectual function was “below average,” AR 596. Dr. Williams

also found that Ms. Pixley had mild limitations in performing at a consistent pace; moderate limits

in understanding, remembering, and applying complex instructions; and moderate limits in

“us[ing] reason and judgement to make work-related decisions” and social interaction. AR 584–

85, 596–97. Dr. Williams diagnosed Ms. Pixley with an unspecified anxiety disorder. See AR 590,

597.

5 On January 27, 2023, the ALJ denied Ms. Pixley’s claim. See AR 15. At step one, the ALJ

found that Ms. Pixley had not engaged in a substantial gainful activity since February 7, 2019. At

step two, he concluded that her “depression, [MDD], unspecified trauma and stressor related

disorders, and adjustment disorder, with anxiety” were severe impairments. AR 21. However, the

ALJ determined that her lupus and hypertension were not severe impairments due to Ms. Pixley’s

lack of treatment and her medication noncompliance. See AR 26. He also relied on the consultative

exam results, which showed no physical symptoms from these impairments. See AR 26, 570, 581.

At step three, the ALJ determined that Ms. Pixley’s impairments did not meet the criteria

in Appendix 1. See AR 26. The ALJ dismissed her claim for anxiety and obsessive-compulsive

disorder in part because she had “no diagnosis of anxiety disorder until March 2022, or less than

12 months ago.” AR 24, 597. The majority of the ALJ’s analysis then focused on Ms. Pixley’s

depressive disorders. See AR 24–25. The ALJ relied on Dr. Jett’s and Dr. Williams’s psychological

examinations to find that Ms. Pixley did not meet the depressive, bipolar and related disorder

listing. See AR 27–29. The ALJ found that Ms. Pixley had moderate limitations in completing

tasks, but only when “completing a normal workday and week and performing at a consistent pace

when in work situations involving the performance of more than 1-2 or 1-4 step routine, repetitive

tasks.” AR 28. Additionally, the ALJ did not give much weight to Ms. Pixley’s claims of pain

because he concluded that her “arguments . . . [we]re not supported or consistent with the evidence

of record, but appear[ed] more based on [her] subjective complaints.” AR 29. Similarly, the ALJ

declined to give much weight to prior medical findings because the reported limitations were mild

and contained no evidence of “treatment prior to June 2019 for mental health disorders.” AR 29.

At step four, the ALJ used a two-part process to determine Ms. Pixley’s RFC. AR 25. First,

the ALJ found that her impairments reasonably could produce her symptoms. AR 25. Second, he

6 found the record did not support the alleged “intensity, persistence and limiting effects of her

symptoms.” AR 26. Relying on the VE’s testimony, the ALJ concluded that Ms. Pixley did not

have the RFC to return to her previous work. See AR 21.

At step five, the ALJ found that Ms. Pixley could find another job in the national economy.

See AR 30–31. The ALJ acknowledged that Ms. Pixley could not work at all exertional levels

because of her moderate limitations, including her MDD and unspecified trauma disorders. See

AR 30. The ALJ referred to the medical-vocational rules listed in appendix 2 of

and found that § 204.00, which refers to individuals capable of performing “heavy work,” applied.

See AR 30. The ALJ went on to explain that § 204.00 was appropriate because Ms. Pixley’s

limitations were non-exertional and did not involve her physical strength. See AR 30. The ALJ

also stated that he relied on SSR 85-15, which gives a framework for determining nonextertional

limitations. See AR 30. Thus, the ALJ determined that Ms. Pixley was not disabled. See AR 31.

The Appeals Council denied Ms. Pixley’s request for review. See AR 1. On November 30,

2023, she filed her complaint in this court. See Compl. ¶ 31, ECF No. 1. On May 21, 2024, Judge

Kelly, with the parties’ consent, referred this case to the undersigned for all purposes. See Min.

Order (May 21, 2024). Pending before this court are Ms. Pixley’s Motion for Judgement of

Reversal and the Defendant Social Security Commissioner’s Motion for Judgment of Affirmance.

See Pl.’s Mot.; Def.’s Mot. for J. of Affirm. (“Def.’s Mot.”), ECF No. 14.

II. LEGAL STANDARD

When reviewing the SSA’s disability determination, the district court acts in an appellate

role and must uphold the determination “if it is supported by substantial evidence and is not tainted

by an error of law.” 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.’”

7 Bulter

(quoting Richardson v. Perales,

(1971)). The standard is

highly deferential, requiring “more than a scintilla,” but is satisfied by “something less than a

preponderance of the evidence.” Fla. Mun. Power Agency v. FERC,

, 365–66 (D.C.

Cir. 2003). As such, the “reviewing court may neither reweigh the evidence presented to it nor

replace the Commissioner’s judgment ‘concerning the credibility of the evidence with its own.’”

Goodman v. Colvin,

(D.D.C. 2017) (quoting Crosson v. Shalala,

(D.D.C. 1995)).

That said, the ALJ must establish a “logical bridge” between their conclusions and the

evidence so that a reviewing court “‘may assess the validity of the agency’s ultimate findings and

afford a claimant meaningful judicial review.’” Lane-Rauth v. Barnhart,

(D.D.C. 2006) (quoting Scott v. Barnhart,

(7th Cir. 2002)). “[T]he plaintiff bears

the burden of demonstrating that the Commissioner’s decision was not based on substantial

evidence or that incorrect legal standards were applied.” Settles v. Colvin,

(D.D.C 2015) (internal quotations marks and brackets omitted).

III. DISCUSSION

Ms. Pixley raises three challenges to the ALJ’s decision. See Pl.’s Reply in Supp. of Mot.

for J. of Reversal (“Pl.’s Reply”) 1, ECF No. 17. First, she argues that the ALJ erroneously found

that she could perform all physical work, up to and including very heavy work. Pl.’s Mot. at 11.

Second, she claims the ALJ failed to properly account for her limitations in the hypothetical he

posed to the VE. See Pl.’s Reply at 1. Finally, she argues that she meets the listings for depressive

and anxiety disorders. See

8 A. Ms. Pixley’s RFC

“[S]ubjective claims of pain must be supported by objective medical evidence showing the

existence of a medical impairment which could reasonably be expected to produce the actual pain,

in the amount and degree, alleged by the claimant.” Pinkney v. Astrue,

(D.D.C. 2009) (internal quotation marks and brackets omitted). The ALJ must then “assess[] the

persistence and intensity of the claimant’s pain as well as the extent to which it impairs her ability

to work.” Butler,

. The ALJ’s determination “must contain specific reasons for the

finding of [intensity and persistence], supported by the evidence in the case record, and must be

sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the

adjudicator gave to the individual’s statements and reasons for that weight.” Washington v. Saul,

No. 20-cv-662,

, at *7 (D.D.C. June 18, 2021).

An ALJ may rely on inconsistent statements and noncompliance with treatment plans to

discount a claimant’s subjective complaints. See, e.g., Hall v. Kijakazi, No. 20-cv-2073,

, at *13 (D.D.C. Feb. 4, 2022). In Hall, the ALJ “appropriately evaluated plaintiff's

subjective complaints against the backdrop of the full record of evidence available.” See

The

ALJ had “considered plaintiff’s purported daily activities; her testimony regarding the duration

and frequency of her bipolar symptoms; the contrast in her behavior and affect across various

evaluations in the record; the effectiveness of the psychiatric medication in alleviating her

symptoms; and her inconsistent engagement with psychotherapy for relief.”

The ALJ here correctly concluded that the “intensity, persistence and limiting effects” of

Ms. Pixley’s symptoms were not “entirely consistent with the medical evidence and other evidence

in the record.” AR 26. To reach this conclusion, the ALJ referenced Ms. Pixley’s inconsistencies

in her daily activities, inconsistent treatment, and noncompliance with her medications. See AR

9 25–29. Thus, the ALJ did not dismiss her complaints, but instead “assigned them an appropriate

weight consistent with [his] determination [of consistency],” meaning his decision is supported by

substantial evidence. Hall,

, at *13.

1. Inconsistencies in Daily Activities

“ALJs may consider a claimant’s daily activities when evaluating the severity and

credibility of reported impairments.” Bullock v. Kijakazi, No. 20-cv-1764,

, at

*6 (D.D.C. Aug. 8, 2023) (citing

(c)(3)). The ALJ reasonably found that

Ms. Pixley’s description of her daily activities deviated enough from objective medical evidence

to determine she was not disabled. See Bullock,

, at *6; AR 26–29. First, the

ALJ noted many of Ms. Pixley’s symptoms, including that she “does not socialize” and “is not

motivated.” AR 25. Next, he noted that the consultative examination in 2022 with Dr. Williams

alternatively showed that she was cooperative and that “her thought processes were coherent and

goal directed.” AR 28. Likewise, although Ms. Pixley claimed she “cannot maintain her personal

hygiene” or do laundry, the ALJ noted that the consultative examinations revealed that Ms. Pixley

“was casually dressed, with satisfactory grooming,” could “groom herself,” and could “launder

clothes.” AR 28; see, Bullock,

, at *6 (finding that the claimant could adequately

groom himself and clean, despite claiming that his daily activities were far less robust). Ms.

Pixley’s exam with Dr. Jett revealed similar inconsistencies. See AR 27.

Ms. Pixley conceded that she only needed “a little help at home, cooking, cleaning, and

laundering clothes.” AR 26. In fact, she independently “cooked 2 to 3 times a week, cleaned once

a week and did laundry once a week. She showered 2 [to] 3 times a week, and could dress herself.”

AR 26 (citing AR 568). The ALJ concluded that Ms. Pixley “could dress, bathe, groom herself, do

light cleaning, manage money, and take public transportation independently.” AR 27 (citing 596).

10 Her daily activities “demonstrated that while the claimant may be limited by her mental

impairments, she could still perform activities that require attention and concentration, as well as

understand at least simple, routine tasks and instructions.” Bullock,

, at *6

(holding that the ALJ reasonably found that the plaintiff was not disabled based on his ability to

carry out activities such as using public transportation, clean his home, and visiting his children).

Thus, “[the ALJ] found that [Ms. Pixley’s] alleged severity of symptoms was not entirely

in accord with her professed daily activities, taking into account the relevant limitations[,]” and

adjusted her RFC accordingly. Colter v. Kijakazi, No. 20-cv-632,

, at *14 (D.D.C.

Mar. 10, 2022) (granting the defendant’s motion of affirmance because the ALJ reasonably

compared the plaintiff's daily activities with objective medical evidence). Specifically, the ALJ

accounted for her moderate limitations by restricting her RFC to work comprised of:

[S]imple 1-4 step routine, repetitive tasks, in a low stress work environment, defined as requiring only occasional decision making and occasional changes in the work setting, and where there would only be occasional contact with coworkers and supervisors, and no contact with the general public, and that did not require a fast pace or production rate quotas, as would customarily be found on an assembly line.

AR 25; see Hall,

, at *10 (finding that an ALJ appropriately accounted for a

plaintiff’s moderate limitations in concentration, persistence, and pace because she limited the

plaintiff’s RFC to simple tasks in low stress work environments).

2. Evaluating Inconsistent Medical Opinions

An ALJ must “not defer or give any specific evidentiary weight, including controlling

weight, to any medical opinion(s).”

.1520c. “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

11 (5) other factors that tend to support or contradict a medical opinion.” Tiana O. v. Kijakazi, No.

20-cv-2051,

, at *6 (D.D.C. Aug. 21, 2023) (internal quotation marks omitted).

“The most important factors in the persuasiveness analysis are (1) supportability—that is,

how well the medical source supported the opinion with “objective medical evidence and

supporting explanations”—and (2) the consistency of the opinion with other evidence in the

record.” David W. v. Kijakazi, No. 21-cv-3370,

, at *10 (D.D.C. Aug. 8, 2023)

(quoting

.920c(b)(2), (c)(1)–(2)). The ALJ is required to “explain how [they]

considered the supportability and consistency factors for a medical source’s medical

opinions . . . in [a claimant’s] determination.”

.1520c(b)(2). However, “there is no

specific format required for addressing supportability and consistency, and those terms need not

be used in the opinion, provided that there is sufficient explanation for a reviewing court to

determine that the ALJ analyzed those factors.” David W.,

, at *12. So long as

the ALJ sufficiently develops the record and gives enough explanation for judicial review, they

have adequately addressed the supportability and consistency factors. See

(citing Jones v.

Barnhart,

, 504–05 (3d Cir. 2004)).

The ALJ properly articulated the supportability and consistency factors when discussing

the persuasiveness of Ms. Pixley’s medical opinions prior to 2019. See AR 29;

.920c(a). That is to say, “the ALJ not only mentioned differences between the medical source

opinion and other record evidence, but he also explained why he found those differences important

for assessing the persuasiveness of the medical source opinion.” David W.,

, at

*12; see AR 29. The ALJ conceded that he was “persuaded for the periods evaluated [in the medical

opinions prior to 2019.]” AR 29. While the ALJ believed that those findings were consistent with

12 the evidence from that time period, he felt that Ms. Pixley’s current records warranted “more

moderate limits” than those found in previous records. AR 29.

The ALJ decided that the 2022 examination by Dr. Williams was “more consistent with the

evidence received after the [opinions prior to 2019] were prepared.” See AR 29. The ALJ

recognized improvements and deteriorations between the prior and recent records, reflecting the

ALJ’s objectivity and thoroughness. See Washington,

, at *7. For example,

Ms. Pixley’s appearance and ability to carry out certain tasks in 2022 was greatly improved over

the pre-2019 assessments. AR 29, 595. On the flip side, the pre-2019 records reported that Ms.

Pixley had “no limits in any B criteria, except mild limits in concentration, persistence, and pace.”

AR 29 (citing AR 80). However, in the 2022 assessment, Dr. Williams noted that Ms. Pixley had

“moderate limitations . . . [in] interact[ing] with coworkers, supervisors, and the public.” AR 597

The ALJ agreed with Dr. Williams’ more severe assessment because it was in line with the isolating

tendencies Ms. Pixley had “mentioned to some of her providers.” AR 28, 27. Thus, the ALJ’s

“analysis squarely addresses the consistency factor, as it determines that [the records prior to 2019

were] not consistent with other, [more current] evidence in the record. It also addresses the

supportability factor, in that it notes that [the records were] not well-supported by [current]

objective medical evidence.” Kory D. v. Kijakazi, No. 20-cv-3571,

, at *7

(D.D.C. Oct. 6, 2023) (ALJ properly assessed consistency and supportability factors by listing

differences between a medical opinion and the rest of the record); see AR 29.

3. Additional Factors

Outside of an individual’s daily activities, an ALJ should also consider “the location,

duration, frequency, and intensity of the individual's . . . symptoms,” the “effectiveness[ ] and side

effects of any medication the individual takes or has taken to alleviate pain or other symptoms,”

13 and “treatment, other than medication, the individual receives or has received for relief.” Grant v.

Astrue,

(D.D.C. 2012). Here, the ALJ listed Ms. Pixley’s alleged

symptoms in detail, and weighed them against objective medical evidence to evaluate her

subjective complaints. See supra. Moreover, the ALJ discussed the side effects of her medications

and her noncompliance with treatment plans at step three. See infra Section III.C.ii.

B. The ALJ’s Hypothetical to the VE

The “hypothetical question[s] that the ALJ pose[s] to the vocational expert [must]

accurately reflect[] Plaintiff’s limitations as determined by the ALJ.” Cunningham v. Colvin,

(D.D.C. 2014). “[O]nly the impairments that the ALJ has found to be credible

need to be discussed in the hypotheticals.” Pinkney,

.

After determining Ms. Pixley’s limitations, the ALJ spent significant time questioning the

VE. See AR 44–49. The ALJ’s hypothetical asked about jobs that would “not requir[e] performing

more than simple one to four step routine repetitive tasks in a low stress work environment, defined

as requiring only occasional contact with coworkers and supervisors and no contact with the

general public and which would require a fast paced or production quotas.” AR 48.

Ms. Pixley argues that the ALJ failed to mention her “moderate limitations in

concentration, persistence, or pace,” and to account for her inability to perform daily activities.

Pl.’s Reply at 2. Ms. Pixley asserts that “‘the ability to perform simple tasks differs from the ability

to stay on task. Only the latter limitation would account for a claimant's limitation in concentration,

persistence, or pace.’” Pl.’s Mot. at 11 (quoting Petty v. Colvin,

, 206 (D.D.C.

2016)). However, unlike the plaintiff in Petty, Ms. Pixley is able to carry out simple tasks. See AR

596. In Petty, there was no evidence that proved that the claimant was capable of sustaining

concentration for extended periods. 204 F. Supp. 3d at 208. In contrast, Ms. Pixley’s “past medical

14 and psychiatric examinations, [revealed] plaintiff had been ‘alert and oriented to person, place and

time,’ and exhibited ‘intact attention and concentration.’” Hall,

, at *10; see AR

596. And the ALJ’s hypothetical here was in accordance with this updated information about Ms.

Pixley. See AR 596. In other words, the ALJ limited the complexity of the tasks to account for her

moderate limitations in maintaining concentration, persistence, and pace when performing

complex tasks. See McIntyre v. Colvin,

(2d Cir. 2014) (ruling that an ALJ’s

failure to explicitly include moderate limitations in concentration, persistence, and pace was

harmless because the hypothetical still accounted for the combined effect of the plaintiff’s

limitations).2 Likewise, though the ALJ did not explicitly mention “unskilled jobs” in his

hypothetical, all of the jobs the VE provided were unskilled, meaning that the VE’s opinion still

accounted for Ms. Pixley’s limitation. See AR 48–49; Glass v. Saul, No. 19-cv-1804,

, at *6 (D.D.C. Apr. 14, 2021), aff'd sub nom. Glass v. Kijakazi, No. 21-cv-5141,

(D.C. Cir. Feb. 23, 2022), reh'g denied, No. 21-cv-5141,

(D.C. Cir.

July 14, 2022) (holding the ALJ's failure to include the term “unskilled” in the hypothetical was

aa harmless error because the VE still provided jobs that were “unskilled”).

In addition, the ALJ adequately included information about Ms. Pixley’s background in the

hypothetical. See AR 48. The ALJ included her relevant experience by describing the individual

2 Ms. Pixley failed to offer specific evidence that she was unable to maintain concentration for sustained periods of time. See Pl.’s Mot. at 10. Nor did Ms. Pixley respond to the Defendant’s argument that any error related to this issue was harmless. See Def.’s Mot. at 15. And failing to reply to an argument concedes it. See Caitlin O. v. Kijakazi, No. 17-cv-1939,

, at *5 n.4 (D.D.C. July 25, 2023). Regardless, “[e]ven if this case were remanded on the grounds that the ALJ himself did not limit the hypothetical to [explicitly address this limitations] the [VE] would provide the same answers, based on which the ALJ would reach the same result. . . . [Any] error of not adequately incorporating [] concentration-based limitations in [the VE’s hypothetical] is therefore harmless.” Lisa H. v. Kijakazi, No. 20-cv-3322,

, at *10 (D.D.C. Oct. 31, 2023); see AR 596. 15 as “between the ages of 46 and 50, has a ninth grade education and has past relevant work

experience as a cashier.” AR 48. An ALJ’s hypothetical can also adequately capture the plaintiff’s

background by describing an individual “with the same RFC determination.” Fleming v. Saul, No.

19-cv-3420,

, at *10 (D.D.C. Aug. 8, 2022). The ALJ did just that by inquiring

about a “person who could only work four hours a day or missed two days a month regularly.” AR

48. Ultimately, “[t]he ALJ’s hypothetical questions accurately describe[d] [Ms. Pixley]’s

impairments so that the vocational expert c[ould] adequately assess whether jobs exist[ed] for

[her],” regardless of the exact wording of the hypothetical. 3 Butler,

(quoting

Simms, 877 F.2d at 1050); see AR 48.

Lastly, Ms. Pixley claims that the ALJ failed to account for her subjective complaints about

her daily activities in the hypothetical to the VE. Pl.’s Reply at 2. In doing so, Ms. Pixley relies on

Wilks v. Apfel, which reversed the ALJ where he failed to mention the claimants’ subjective claims

of pain and did not properly inform the claimant of his rights.

(D.D.C.

2000). However, the court there noted that the ALJ “did not find and, based on plaintiff's testimony

and the medical records, could not find that plaintiff suffered no pain.”

. In contrast, the

ALJ here explained why he discounted Ms. Pixley’s claims of pain. See supra. More importantly,

“the ALJ’s opinion makes clear that he recognized and understood Plaintiff's alleged limitations as

to her ability to perform daily activities,” which is what led him to account for moderate limitations

in concentration, persistence, and pace in his hypothetical. Colter,

, at *14; see

AR 48. Thus, the hypothetical adequately described Ms. Pixley’s limitations.

3 Ms. Pixley also claims that “the ALJ relied on VE testimony that a hypothetical claimant allegedly comparable to Ms. Pixley could perform her past work.” Pl.’s Reply at 2. However, the VE explicitly stated that Ms. Pixley could not return to her past work, and the ALJ’s opinion reflected that determination. See AR 48, 29–30. 16 C. The Listings for Depressive and Anxiety Disorders

Depressive bipolar and related disorders, and anxiety and obsessive-compulsive disorders

each have three paragraphs of requirements, labeled A, B, and C. See 20 C.F.R. § Pt. 404, Subpt.

P, App. 1, Pt. A2, § 12.00(A)(2)(c). To meet the criteria for either disorder, a claimant’s impairment

must fall under paragraphs A and B or A and C. See id. The parties agree that Ms. Pixley meets the

requirements of paragraph A. See Pl.’s Reply at 6; Def’s Mot. at 24. However, they disagree about

whether she meets paragraph B or C. See Def’s Mot. at 24–25.

i. Paragraph B Criteria

Paragraph B requires a claimant to show an “[e]xtreme limitation of one, or marked

limitation of two” in their ability to: “understand, remember, or apply information; interact with

others; concentrate, persist, or maintain pace; or adapt or manage oneself.” Id. §§ 12.04, 12.06

(internal quotation marks and brackets omitted). Moderate limitations or below do not qualify. Id.

§ 12.00(F)(2). An “extreme limitation” is so severe that a claimant is unable to function in the area,

whereas a “marked limitation” refers to one that “seriously limits” the ability to function. Id.

§§ 12.00(F)(2)(d), 12.00(F)(2)(e). A moderate limitation is one that leaves a claimant “mildly

impaired.” Devylle C. v. Kijakazi, No. 22-cv-01061,

, at *4 (D.D.C. July 31,

2023).

The ALJ properly concluded that Ms. Pixley failed to meet the paragraph B criteria. See

AR 23. First, the ALJ correctly found that Ms. Pixley had moderate limitations in the ability to

understand, remember, or apply information. AR 23. The ALJ based this conclusion on evidence

demonstrating that although Ms. Pixley had “below average” intellectual functioning, her recent

and remote memory was only “mildly impaired.” AR 23. “[M]ildly impaired” memory qualifies

as a moderate limitation for this subcategory. See Devylle C.,

, at *4 (claimant

17 had moderate limitations in the ability to understand, remember, or apply information because her

memory skills were “mildly impaired”). Additionally, the ALJ noted that Ms. Pixley could

“launder clothes, manage money, and take public transportation.” AR 23. “Being able to use public

transportation ‘indicat[es] an ability to remember and apply information regarding routes,

locations, and schedules’ and to pay bills ‘indicat[es] an ability to remember when they are due[.]’”

Oxner v. Kijakazi, No. 12-cv-3066,

, at *6 (D.D.C. Aug. 5, 2022)

(quoting Hall,

, at *5). Thus, Ms. Pixley’s daily activities also demonstrate only

a moderate limitation. See

Second, the ALJ correctly found “a moderate limitation in interacting with others because

medication helped her condition, and her interactions with medical providers and the ALJ

suggested moderate limitation.” Siataga v. Saul, No. 19-cv-768,

, at *7 (D.D.C.

Aug. 20, 2020); see AR 23. The ALJ’s conclusion was based on Ms. Pixley’s “reported periods of

self-seclusion” and Drs. Jett’s and Williams’ conclusions that Ms. Pixley had difficulty interacting

with others. See

The ALJ also pointed to Ms. Pixley’s claim that she “stays by herself.” AR 23.

These behaviors reflect only moderate limitations. See Siataga,

, at *7

(plaintiff’s limitation in interacting with others was only moderate based on her tendency isolate

and rapidly changing moods).

Third, the ALJ correctly found that Ms. Pixley also had moderate limitations in her ability

to concentrate, persist, or maintain pace when completing tasks. See AR 23. The ALJ made this

determination based on Ms. Pixley’s inability to maintain concentration when “performing

complex instructions.” AR 23. Nevertheless, she was: “capable of carrying out short simple

instructions on a regular basis” when asked; cooperative during her consultative examinations with

Drs. Jett and Williams; and her “[m]anner of relating, social skills, and overall presentation were

18 fair” during these examinations. AR 23, 583. The ALJ properly relied on these factors—

particularly the results of the consultative examinations—in determining that Ms. Pixley had only

moderate limitations in this subcategory. See Tiana O.,

, at *8 (finding that the

plaintiff had moderate limitations in concentration, persistence, and pace because she was

“engaged and cooperative” and had a “fair attention span” during appointments).

Fourth, the ALJ correctly found that Ms. Pixley had mild limitations in her ability to adapt

or manage herself. See AR 23. Ms. Pixley “had good and bad days” and needed help from her

children. AR 23. However, “she could perform her personal hygiene, toileting and feeding” and

“attended her appointments independently using public transportation.” AR 23. A person who can

“‘sleep, eat, . . . groom, and cooperate,” has only mild limitations in their ability to adapt or

manage themselves. Oxner,

, at *6. Thus, “[Ms. Pixley] does not have marked

difficulties in daily living.”

In response to the ALJ’s findings, Ms. Pixley largely raises the subjective complaints she

made to the medical professionals while downplaying their determinations. See Pl.’s Reply at 6–

8. But “statements about [the claimant’s] pain or other symptoms will not alone establish that

[they] are disabled.” 20 C.F.R 416.929(a). Indeed, Ms. Pixley only refers to a medical

professional’s evaluation4 once: “Ms. Pixley has limitations regarding ‘regulating emotions,

controlling behavior, and maintaining wellbeing[.]’” Pl.’s Reply at 7 (quoting AR 495). However,

4 Ms. Pixley relies on

(c)(2) to argue that the ALJ should have “give[n] more weight to medical opinions from [her] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s).” However, § 404.1527 does not apply to SSI applications filed after March 17, 2017. The controlling regulation is

.920c(a), which does not require ALJs to “give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” Courts have held that § 404.1527 no longer applies. See, e.g., Stephanie G. v. O'Malley, No. 22-cv-00904,

(D.D.C. May 20, 2024) (treating physician rule did not apply to 2019 application).

19 that medical professional concluded that “[i]n regard to regulating emotions, controlling behavior,

and maintaining wellbeing, [Ms. Pixley] has mild to moderate limitations.” AR 495 (emphasis

added). Moreover, Drs. Jett and Williams noted that while her MDD limited her ability to function

in the four areas, the limitations were moderate or mild. See AR 496, 596–97. The ALJ was well

within his discretion to credit these findings. See supra. Thus, there was substantial evidence

showing that Ms. Pixley “had only moderate limitations in the four areas of mental functioning.”

Tiana O.,

, at *8; see AR 23.

ii. The Paragraph C Criteria

Paragraph C requires claimants to prove that their disorder is “serious and persistent.” 20

C.F.R. Part 404, Subpart P, App. 1 § 12.00(A)(2)(c). To do so, a claimant must provide

documentation showing that they have had the disorder for at least two years. See id. Additionally,

they must establish that they actively attend some sort of treatment that “diminishes the symptoms

and signs of [their] mental disorder” and that they have “marginal adjustment,” or “minimal

capacity to adapt to changes in [their] environment or to demands that are not already part of [their]

daily life.” Id.

ALJs “will consider periods of inconsistent treatment or lack of compliance with treatment

that may result from [a claimant’s] mental disorder” to conclude that a claimant does not meet

paragraph C but cannot do so if the non-compliance is a feature of the disorder. 20 C.F.R. Part 404,

Subpart P, App. 1, Part A2, § 12.00(G)(2)(b). Thus, the ALJ must “review the case record to

determine whether there are explanations for a claimant’s failure to follow treatment that might

improve her symptoms.” Tiana O.,

, at *11 (internal quotation marks omitted).

The ALJ properly relied on Ms. Pixley’s previous records and consultative exams to

conclude that she failed to meet paragraph C. See AR 24. The ALJ noted that Ms. Pixley had “at

20 most intermittent treatment with both her mental health and even medical providers, despite

chronic conditions.”

Moreover, Ms. Pixley took “no medication for her psychological

impairments, and often [was] in noncompliance with her medication for her [other] impairments.”

AR 24. For example, during a February 2019 appointment with NP Rhoads, Ms. Pixley agreed to

take Celexa, a prescription medication to treat MDD, for 6 to 12 months. See AR 24. “[B]ut once

she felt her symptoms improved, [Ms. Pixley] said she would stop.” AR 24 (citing AR 502). “[Ms.

Pixley also] stopped treatment [at times] because she was annoyed that she was only treated with

medication, without coinciding therapy.” AR 24 (citing AR 440). As another example, in 2021,

Ms. Pixley saw a psychiatrist once a week for two months before quitting. See AR 24–25. Ms.

Pixley’s justifications for her noncompliance are unpersuasive because her periodic attendance

with professionals demonstrates that she was able to seek treatment and take medication. See, e.g.,

AR 531; Micheal C.,

, at *8 (claimant did not meet the Paragraph C criteria who

had reported to medical appointments and claimed he was prescribed medication but had not “had

his meds in 2 months” and was given counseling on medication compliance).

“[Ms. Pixley] admitted to noncompliance with medication management because she did

not like to take medication.” AR 24 (citing AR 473). Ms. Pixley now tries to justify that admission

by claiming the medication’s side effects were adverse. See Pl.’s Reply at 8. However, she failed

to raise this argument in the consultative examinations, and only mentioned them briefly during

the third hearing. AR 492, 582, 51. In fact, in a report to Dr. Kerr, Ms. Pixley agreed that she “does

better” and “regains weight” while taking anti-depressants. AR 473. Further, she “admit[ted] to

non-compliance as she doesn’t like to take meds.”

Those contemporary statements are more

persuasive than justifications created years later in litigation. See Hall,

, at *12

21 (upholding the ALJ’s determination that the plaintiff’s post hoc claims during the administrative

hearing did not match the historical record).

And even if the Court considers side effects, they do not justify her noncompliance. At the

third hearing, Ms. Pixley claimed that the medication made her “tired” to the point that it was “hard

to move around.” AR 53. However, “drowsiness should not be viewed as disabling unless the

record references serious functional limitations[.]” Bullock,

, at *8

(quoting Rutherford v. Barnhart,

(3d Cir. 2005)). For example, if drowsiness

forces a claimant to “sleep for several hours during the day,” or if an ALJ “ignores uncontradicted

testimony from [a claimant] that [her] medications caused [her] to be excessively drowsy.”

Ms. Pixley does not fall under either such category. Indeed, while on medication, Ms. Pixley

reported an “improved mood,” that she could “cook[] two to three times a week,” and that she

maintained her personal hygiene. AR 540, 579. Sustaining a healthy mood and conducting daily

activities demonstrates that the drowsiness was not debilitating. See Bullock,

, at

*6. In other words, adverse side effects were not “the only barriers to treatment.” Michael C.,

, at *7; see AR 29. “Substantial evidence thus supports the ALJ’s conclusion that [Ms.

Pixley’s] sporadic treatment history was not solely a function of [adverse side effects],” and instead

a choice she independently made not to continue treatment. Michael C.,

, at *8.

IV. CONCLUSION

For the foregoing reasons, as set out in an accompanying order, the Court will DENY

Plaintiff's Motion for Judgment of Reversal and GRANT Defendant's Motion for Judgment of

Affirmance.

Date: September 3, 2024 Digitally signed by Zia M.

Zia M. Faruqui Faruqui Date: 2024.09.03 13:13:43 -04'00' ___________________________________ ZIA M. FARUQUI

22 UNITED STATES MAGISTRATE JUDGE

23