                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 SHEILA M. TROY,

         Plaintiff,
                 v.                                        Civil Action No. 15-916 (JDB-DAR)
 CAROLYN W. COLVIN,
 Acting Commissioner of Social Security,

         Defendant.


                                 MEMORANDUM OPINION

       Plaintiff Sheila Troy challenges the denial of her claim for Social Security Disability

Benefits and Supplemental Security Income Benefits. On August 25, 2016, Magistrate Judge

Deborah Robinson, to whom this matter had been referred for full case management, issued her

Report and Recommendation.          Judge Robinson recommended that the decision of the

Administrative Law Judge (“ALJ”) be affirmed. Thereafter, Troy filed timely Objections to the

Report and Recommendation pursuant to Local Civil Rule 72.3(b), and defendant, the Acting

Commissioner of Social Security, filed a response. For the reasons set forth in the Report and

Recommendation and those explained further below, the Court finds that the ALJ properly denied

Troy’s claim. The Court accordingly adopts the Report and Recommendation, denies plaintiff’s

motion for judgment of reversal, and grants defendant’s motion for judgment of affirmance.

                                      I.   BACKGROUND

       A. Statutory and Regulatory Framework

       To qualify for disability insurance benefits under Titles II and XVI of the Social Security

Act (the “Act”), a claimant must establish that she is “disabled.” 42 U.S.C. §§ 423, 1382. Under

the Act, disability means the “inability to engage in any substantial gainful activity by reason of
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any medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than 12

months.” Id. § 423(d)(1)(A); see also id. § 1382c(a)(3)(A). With certain exceptions not present

here, an individual is disabled “only if [her] physical or mental impairment or impairments are of

such severity that [she] is not only unable to do [her] previous work but cannot, considering [her]

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

exists in the national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

       The ALJ must employ a five-step sequential evaluation process to determine whether a

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden

of proof on the first four steps. Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004). The

claimant must first show that she is not presently engaged in “substantial gainful activity.” 20

C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).   Second, she must show that she has a “severe

medically   determinable    physical   or    mental impairment.”        Id.   §§ 404.1520(a)(4)(ii) ,

416.920(a)(4)(ii). Third, she must show that her impairment meets or equals an impairment listed

in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so,

the claimant is deemed disabled; if not, the ALJ will assess the claimant’s residual function

capacity (“RFC”), which reflects “what an individual can still do despite his or her limitations.”

Ross v. Astrue, 636 F. Supp. 2d 127, 132 (D.D.C. 2009). Fourth, the claimant must show that she

is incapable of performing her “past relevant work.”            20 C.F.R. §§ 404.1520(a)(4)(iv) ,

416.920(a)(4)(iv). If the claimant has satisfied the first four steps, the Commissioner bears the

burden at step five of demonstrating that the claimant is still able to perform “other work” based

on a consideration of her RFC, age, education and work experience. Id. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v); Butler, 353 F.3d at 997.

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         B. Factual Background

         Troy applied for disability insurance benefits and supplemental security income benefits

on September 26, 2011 and September 13, 2011, respectively, alleging that her disability began on

March 18, 2010 due to a brain tumor, diabetes, and carpal tunnel syndrome. See Administrative

Record (“A.R.”) [ECF Nos. 9-1 through 9-13] at 38, 239, 242. Troy’s claims were denied initially

on January 25, 2012, and again upon reconsideration on July 27, 2012. Id. at 38. Thereafter, Troy

filed a timely request for a hearing on September 7, 2012, and one was held before an ALJ on

November 15, 2013. Id. In a decision issued December 20, 2013, the ALJ denied Troy’s claim,

finding she was not “disabled” under the Act. Id. at 45.

         In performing the five-step evaluation process, the ALJ found (at steps one and two) that

Troy had not engaged in substantial gainful activity since the alleged disability onset date and that

she had the following severe impairments: “pituitary adenoma, status post endoscopic resection

with septoplasty and inferior turbinectomy in March 2010; rhinosinusitis; GERD with muscle

tension dysphonia; diabetes mellitus; asthma; bilateral carpal tunnel syndrome, left worse than

right;   peripheral   vascular   disease   with   diabetic   polyneuropathy;   thoracic/lumbosacral

neuritis/radiculitis; and degenerative disc disease of the cervical spine.” Id. at 40. At step three,

the ALJ determined that Troy did not have an impairment that met or equaled an impairment listed

in Appendix 1. Id. at 41. And at step four, the ALJ found that Troy was not capable of performing

her past relevant work as a data entry operator. Id. at 45. Finally, after considering the entire

record, the ALJ found that Troy had the RFC to perform sedentary work in that she can

occasionally lift and/or carry ten pounds, frequently lift and/or carry less than ten pounds, stand

and/or walk about six hours in an eight hour day, sit for a total of about six hours in an eight hour

day, and frequently reach, handle, finger, and feel. Id. at 41. Relying on testimony from a

                                                  3
vocational expert, the ALJ determined that Troy was capable of performing past relevant work as

a computer security specialist, and hence she was not disabled. Id. at 45. Troy sought review of

the ALJ’s decision with the Appeals Council, which denied her request for review, making the

ALJ’s ruling the Commissioner’s final decision.

       Having exhausted her administrative remedies, Troy filed this lawsuit seeking judicial

review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). This Court referred the case to a

magistrate judge for full case management. See June 16, 2015 Referral Order [ECF No. 3].

Thereafter, Troy filed a motion for judgment of reversal and the Commissioner moved for

judgment of affirmance. Troy alleged that the ALJ erred by: (1) failing to provide specific reasons

for finding Troy’s allegations concerning her impairments were only partially credible; (2) failing

to properly weigh the relevant opinion evidence in making the RFC determination; and (3) making

the Step 4 determination based on testimony from a vocational expert in response to an incomplete

hypothetical. See Pl.’s Mot. for J. of Reversal [ECF No. 13] at 9–18. Defendant responded that

“[b]ecause substantial evidence supports the ALJ’s conclusions, Plaintiff’s challenges should be

dismissed, and the ALJ’s decision should be affirmed.” See Def.’s Mot. for J. of Affirmance [ECF

No. 14] at 2.

       In her August 25, 2016 Report and Recommendation, Magistrate Judge Robinson

recommended that the Court deny Troy’s motion and grant defendant’s motion. See Report &

Recommendation (“R&R”) [ECF No. 18] at 1, 13–14. Specifically, she found that the ALJ’s

credibility determination, RFC determination, and Step 4 determination were all supported by

substantial evidence. Id. at 6–13. Plaintiff filed timely but brief Objections to the Report and

Recommendation on September 7, 2016, pursuant to Local Rule 72.3(b). See Pl.’s Objections to



                                                  4
R&R [ECF No. 19].         Defendant responded, asking this Court to adopt the Report and

Recommendation in full. See Def.’s Resp. to Pl.’s Objections [ECF No. 20] at 2.

                                    II.   LEGAL STANDARD

       A claimant may seek judicial review in a district court of “any final decision of the

Commissioner of Social Security made after a hearing to which [s]he was a party.” 42 U.S.C.

§§ 405(g). The court must uphold any decision that “is based on substantial evidence in the record

and correctly applies the relevant legal standards.” Butler, 353 F.3d at 999; Smith v. Bowen 826

F.2d 1120, 1121 (D.C. Cir. 1987). “Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’”         Butler, 353 F.3d at 999 (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)). It “requires more than a scintilla, but . . . less

than a preponderance of the evidence.” Id. (citation omitted).

       The D.C. Circuit has recognized that “[s]ubstantial-evidence review is highly deferential

to the agency fact-finder.” Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir.

2008). The claimant bears the burden of demonstrating that the ALJ’s decision was not based on

substantial evidence or contained an error of law. Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 64

(D.D.C. 2006). The reviewing court must determine whether the ALJ “has analyzed all of the

evidence and has sufficiently explained the weight he has given to obviously probative exhibits.”

Id. at 65 (quoting Butler, 353 F.3d at 999). The court, however, “is not permitted to re-weigh the

evidence and reach its own determination.” Maynor v. Heckler, 597 F. Supp. 457, 460 (D.D.C.

1984); Butler, 353 F.3d at 999 (“[W]e are not to determine ourselves whether [claimant] is

disabled; we assess only whether the ALJ’s finding . . . is based on substantial evidence and a

correct application of the law”).



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       “[A] district judge shall make a de novo determination of those portions of a magistrate

judge’s findings and recommendations to which objection is made.” Local Civ. R. 72.3(c); see

also 28 U.S.C. § 636(b)(1). A district judge is not required, however, to review those potions of a

magistrate judge’s report to which no objection is made. Porter v. Colvin, 951 F. Supp. 2d 125,

129 (D.D.C. 2013) (citing Thomas v. Arn, 474 U.S. 140, 150–51 (1985)); Miller v. Holzmann,

No. 95-1231 (RCL), 2007 WL 710132, at *1 (D.D.C. Mar. 6, 2007). A district judge “may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

judge.” Local Civ. R. 72.3(c); 28 U.S.C. § 636(b)(1) (same).

                                      III.   DISCUSSION

       Magistrate Judge Robinson made three recommendations regarding the ALJ’s decision.

She first recommended upholding the ALJ’s credibility determinations with respect to Dr. King,

Nurse Practitioner Adisa, and plaintiff Troy, because they were all based on substantial evidence.

See R&R at 11. She next recommended upholding the ALJ’s RFC determination because it was

supported by substantial evidence. Id. at 12. Finally, she recommended affirming the ALJ’s Step

4 determination. Id. at 13. Troy does not object to the second or third recommendations and the

Court sees no reason to disturb those parts of the Report and Recommendation because it agrees

that the ALJ’s determinations were supported by substantial evidence. Troy does, however, raise

two objections to the first recommendation. She first argues that the ALJ failed to properly weigh

an opinion offered by Nurse Practitioner (“NP”) Adisa, which the ALJ found to be temporary,

post-surgery restrictions rather than permanent limitations imposed on Troy. Pl.’s Objections to

R&R at 1–2. She next contends that the ALJ did not provide a legally sufficient reason for only

partially crediting Troy’s statements about the intensity, persistence, and limiting effects of her



                                                6
impairments. Id. at 2. The Court addresses both objections below and concludes that the ALJ’s

determinations were supported by substantial evidence and free of legal error.

   A. The Medical Opinion of Nurse Practitioner Adisa

       Troy’s initial objection is that the ALJ failed to properly weigh the opinion evidence of NP

Adisa. See id. at 1–2. This concerns a single entry from a March 31, 2010 medical record in

which NP Adisa instructed Troy to “avoid strenuous activity, bending, straining, [or] stooping.”

A.R. at 369. While Troy argues that these were permanent restrictions, the ALJ viewed them as

reasonable post-surgery guidance that were “not . . . intended as permanent limitations.” Id. at 44.

The ALJ accordingly found NP Adisa’s opinion to be “credible, but time limited.” Id. The ALJ’s

finding is supported by substantial evidence in the record.

       The context of NP Adisa’s note in Troy’s treatment record provides strong evidence that

the instructions were intended as temporary restrictions following recent surgery. On March 18,

2010, Dr. Roberti performed an endoscopic surgery to remove a tumor from Troy’s pituitary gland.

Id. at 1017–18. After a post-surgical MRI revealed a possible residual pituitary tumor, id. at 311–

313, Dr. Singh performed a second endoscopic surgery on March 27, 2010. Id. at 370–71. Troy

saw NP Adisa—a colleague of Dr. Roberti and Dr. Singh—just four days after the second surgery

for a “post operative examination.” Id. at 368. The substance of the medical record makes it

abundantly clear that NP Adisa was focused solely on Troy’s recovery from the surgery. After

describing the surgery performed by Dr. Singh, NP Adisa noted that Troy was feeling better but

reported having mild headaches, intermittent nasal symptoms, short term memory loss, and

dizziness with abrupt position changes. Id. Under the caption “Assessment / Planning Patient

education,” NP Adisa advised Troy to schedule a clinical follow-up with Dr. Singh regarding

questions about cerebrospinal fluid (“CSF”) leaks (a side effect of the endoscopic transphenoidal

                                                 7
resection surgery that Troy underwent), and to “avoid strenuous activity, bending, straining, [or]

stooping.” Id. at 369.

        Moreover, NP Adisa does not indicate anywhere in this record that she intended these

restrictions to carry forward permanently.       Indeed, the findings of NP Adisa’s physical

examination of Troy would tend to suggest otherwise. During the examination, NP Adisa observed

among other things, that Troy was “without any discomfort,” had “[f]ull range of motion in all

joints [with] no joint swelling or deformities,” and had full strength in all muscle groups. Id. at

368. These findings do not comport with Troy’s argument that NP Adisa was imposing permanent

limitations.

        The Court finds additional support for the ALJ’s determination that these limitations were

temporary based on the similarity between the restrictions imposed by NP Adisa and those

contained in the discharge instructions following Troy’s initial surgery with Dr. Roberti, two

weeks prior. Compare Mar. 18, 2010 Discharge Instructions, A.R. at 326 (advising Troy to avoid

“strenuous activity,” “lifting anything heavier than 5 pounds,” and “blowing [her] nose and

coughing”), with Mar. 31, 2010 Record, A.R. at 369 (advising Troy to “avoid strenuous activity,

bending, straining, [or] stooping”). Clearly, the March 18 discharge instructions were not intended

to be permanent because they advise Troy to avoid blowing her nose and coughing. The same is

true of NP Adisa’s instructions.

        Finally, the strongest evidence that these were not meant to be permanent limitations comes

from Troy’s subsequent treatment history with Dr. Singh. Following the March 31, 2010 post-

operative visit with NP Adisa, Troy continued to be treated by Dr. Singh regularly for the next

three and a half years. A.R. at 1073–1163 (showing at least 15 interactions with Dr. Singh). Yet,

these restrictions were never repeated during the course of this subsequent treatment. Hence, the

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Court concludes that there is substantial evidence that supports the ALJ’s determination that NP

Adisa’s opinion though credible, was time limited. 1

    B. Credibility of Troy’s Statements

         Troy next argues that the ALJ erred by only partially crediting her statements about the

severity of her impairments because he allegedly did so based just on inconsistencies between her

statements and the objective medical evidence. See Pl.’s Objections to R&R at 2. “The credibility

determination is solely within the realm of the ALJ. A reviewing court will only intercede where

an ALJ fails to articulate a rational explanation for his or her finding.” Grant v. Astrue, 857 F.

Supp. 2d 146, 156 (D.D.C. 2012). The ALJ must only include a claimant’s “credibly established

limitations” in the RFC assessment. See Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).

For the reasons described below, the Court finds that the ALJ correctly applied the relevant legal

standards and his credibility determination was supported by substantial evidence.

         The governing regulations prescribe a two-step process to determine whether a claimant’s

symptoms (including pain) affect her ability to perform basic work activities.                           20 C.F.R.

§§ 404.1529, 416.929.         First, the claimant must show “medical signs or laboratory findings”

evidencing a “medically determinable impairment that could reasonably be expected to produce”

the alleged pain. Id. §§ 404.1529(a)–(b), 416.929(a)–(b). Here, the ALJ found step one satisfied

because “claimant’s medically determinable impairments could reasonably be expected to cause

the alleged symptoms.” A.R. at 42.



         1
           Magistrate Judge Robinson also noted that NP Adisa did not qualify as an acceptable medical source under
the governing regulations at the time Troy filed her claim. See R&R at 10. The Court notes, however, that the
regulations have been amended and for claims filed after March 27, 2017, a “Licensed Advance Practice Registered
Nurse, or other licensed advanced practice nurse with another title” may be considered an “acceptable medical source.”
20 C.F.R. §§ 404.1502(a), 416.902(a) (effective Mar. 27, 2017). The Court further observes that this did not appear
to be part of the ALJ’s determination as he found NP Adisa “credible” and did not state that she was not an acceptable
medical source.
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         Second, the ALJ assesses the persistence and intensity of pain and the extent to which it

impairs claimant’s ability to work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). This second step

requires the ALJ to 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.” 2 Butler v. Barnhart, 353 F.3d 992, 1004 (D.C.

Cir. 2004) (citing 20 C.F.R. §§ 404.1529(c)(1)–(3), 416.929 (c)(1)–(3)).                          Because pain is

subjective, the ALJ evaluates the claimant’s statements “in relation to the objective medical

evidence and other evidence,” including “whether there are any inconsistencies in the evidence

and the extent to which there are any conflicts between [claimant’s] statements and the rest of the

evidence.” Barnhart, 353 F.3d at 1004 (quoting 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)). The

ALJ may not reject claimant’s statements solely because they are not substantiated by objective

medical evidence; rather, he “must consider the entire case record,” Barnhart, 353 F.3d at 1005

(quoting Evaluation of Symptoms in Disability Claims: Assessing the Credibility of An

Individual’s Statements, 1996 WL 374186, at *1 (SSA July 2, 1996) 3), and will take account of

claimant’s statements to the extent they “can reasonably be accepted as consistent with the

objective medical evidence and other evidence,” 20 C.F.R. §§ 404.1529(c), 416.929(c).



         2
            Factors relevant to a claimant’s symptoms, such as pain, which the ALJ will consider include: the claimant's
daily activities; the “location, duration, frequency, and intensity of” the claimant's pain; “[p]recipitating and
aggravating factors”; “[t]he type, dosage, effectiveness, and side effects of any medication” for pain relief; treatment
the claimant receives or has received for pain relief; “[a]ny measures” the claimant uses to relieve pain; and “[o]ther
factors concerning [the claimant's] functional limitations and restrictions due to pain.” Id. §§ 404.1529(c)(3),
416.929(c)(3).
          3
            This ruling has been superseded by Social Security Ruling 16-3p, which became effective March 28, 2016.
Titles II and XVI: Evaluation of Symptoms in Disability Claims, 2016 WL 1119029 (SSA Mar. 16, 2016); see also
2016 WL 1237954 (correcting effective date). The new ruling does not apply retroactively to claims, like Troy’s, that
were filed before its effective date. Ali v. Colvin, No. 14-CV-230 (EGS), 2017 WL 680366, at *6 n.1 (D.D.C. Feb.
21, 2017).

                                                          10
       Troy’s objection fails for two reasons. To begin with, Troy does not identify any subjective

complaints that the ALJ allegedly failed to evaluate, let alone one that was rejected based solely

on the objective medical evidence. See Pl.’s Objections to R&R at 2. Indeed, the ALJ explicit ly

listed Troy’s statements concerning the limiting effects of her symptoms including that she had

pain in her extremities related to diabetic and cervical neuropathy, difficulty buttoning clothing

and getting in and out of the bathtub, and that household chores and meal preparation took her

more time to complete.      A.R. at 42. And by limiting Troy to sedentary work with further

restrictions on standing, sitting, carrying and manipulation, it is clear that the ALJ considered each

of these statements and recognized that Troy had significant (but not extreme or disabling) work-

related restrictions resulting from her impairments. See id. at 41.

       Moreover, Troy is wrong that the ALJ misapplied the law in making his credibility

determination.   The ALJ began by fully stating the correct legal standard.           See id.   More

importantly, he then properly applied that standard and articulated the specific reasons that he

found that Troy’s statements were “not entirely credible.” Id. at 42. The ALJ did not make his

credibility determination by focusing solely on pieces of objective evidence; rather, he evaluated

all of the evidence in the entire record including Troy’s statements about her functional limitations

to the Commissioner and to her treating doctors, objective medical evidence, opinions from Troy’s

treating doctors, opinions from state medical examiners, and the ALJ’s own observations of Troy

during the hearing. See id. at 42–45. The ALJ stated specific reasons for the weight that he

assigned to the opinions of each of Troy’s treating doctors about her functional limitations. Id.

Ultimately, the ALJ determined that the opinions offered by the state medical consultants were

credible and most consistent with the objective clinical evidence, “which show[ed] very little

abnormality on physical examinations of record[,] and[] specifically, consistently normal strength

                                                 11
and sensory findings in all extremities,” and with the diagnostic evidence, which showed no more

than mild to moderate abnormality on MRI and nerve conduction testing. Id. at 44. But the ALJ

did not stop there. He further determined that additional limitations on lifting and carrying were

warranted based on the credible portions of the opinions offered by Dr. King. Id. Nowhere does

the ALJ indicate that he rejected Troy’s statements based on the objective medical evidence alone.

It is not this Court’s job to second guess the ALJ by reweighing the evidence. See Maynor, 597

F. Supp. at 460. Hence, the Court finds no basis to overturn the ALJ’s credibility determination.

                                        CONCLUSION

        For the reasons explained above, the Court rejects Troy’s two objections and adopts the

Report and Recommendation. Accordingly, the Court will deny Troy’s motion for judgment of

reversal and grant defendant’s motion for judgment of affirmance. A separate order will be issued

on this date.

                                                                  /s/
                                                            JOHN D. BATES
                                                       United States District Judge

Dated: July 21, 2017




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