1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WANDA KYLER, ) ) Plaintiff, ) ) v. ) Civ. Action No. 13-0750 (ESH) ) COMMISSIONER OF ) SOCIAL SECURITY ) ADMINISTRATION, ) ) Defendant. ) ___________________________________ )

MEMORANDUM OPINION AND ORDER Plaintiff Wanda Kyler seeks judici al review pursuant to 42 U.S.C. ' 405(g) of the denial of social security disability insurance be nefits (“DIB”) on November 2, 2012, following a hearing before an Administrative Law Judge (“AL J”). Pending before th e Court are Plaintiff’s Motion for Reversal of Judgment (Dkt. # 18) and the Social Security Commissioner’s Motion for Judgment of Affirmance (Dkt. # 21). Upon consid eration of the parties’ submissions and the Administrative Record (“AR) (Dkt. # 20), th e Court will grant pl aintiff’s motion, deny defendant’s motion, and remand the case to the agency for further proceedings. BACKGROUND At the relevant time period, plaintiff was a 56-year-old woman who resided in Pineville, South Carolina, and performed clerical duties as an employee of the county school system from 1996 to 2004. (AR 28, 37, 186.) On Novemb er 29, 2011, plaintiff pr otectively filed an application for DIB, alleging that she became unable to work due to a disabling condition on September 1, 2004. (AR 13, 122.) During a hear ing on October 5, 2012, in Charleston, South Carolina, plaintiff amended her claim to reflect the disability date as December 28, 2008, when2 she was diagnosed with sarcoidosis. (AR 42.) In her DIB application, plaintiff listed thirteen disabling conditions, which included chronic asth ma, arthritis, high blood pressure, acid reflux, allergy, carpal tunnel, tiredness, shortness of breath, continuing cough, and hoarseness. In addition, she listed “ears . . . spit a great deal,” and the fact that she wore a knee brace on both knees. (AR 143.) Plaintiff’s clai m was denied initially and on reconsideration. (AR 52, 60-64.) Her request for a hearing was granted. Plaintiff was represented by counsel at the October 5, 2012 hearing where she testified and presented one witness whom she had known for approximately two years and had visited with once a week. (AR 25-51.) The ALJ also co nsidered a letter submitte d on plaintiff’s behalf by Dr. Adebola E. Rojugbokan of the Franklin C. Fetter Cross Family H ealth Center (“Cross Health Center”) who wrote on October 4, 2012, th at she began treating plaintiff on December 9, “2009.” (AR 390.) 1 Dr. Rojugbokan wrote thatplaintiff “suffers from severe sarcoidosis/ asthma,” and opined that plainti ff’s condition “causes her to be unable to perfor m her activities of daily living.” ( Id .) Dr. Rojugbokan further st ated that plaintiff “says she has been unable to perform any work activities. Disability would have commenced January 2009 to present.” ( Id .) Dr. Rojugbokan offered to provide further assi stance and additional information if needed. The ALJ denied plaintiff’s claim by writt en decision dated November 2, 2012. (AR 13- 20.) The ALJ found in relevant part that plain tiff (1) had not engaged in substantial gainful activity during the relevant time period betw een December 28, 2008 and December 31, 2009, (2) had “severe impairments” of obesity, asthma, and sarcoidosis, (3) “did not have an impairment or combination of impairments that met or medi cally equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, A ppendix 1,” (4) “had the residual functional

1 As discussed later, the parties now agree that the year was a typographical error and that Dr. Rojugbokan had treated plaintiff since December 2008 and perhaps earlier.3 capacity [“RFC”] to perform sedentary work as defined in 20 CFR 404.1567(a) except no climbing, no exposure to hazards, no exposure to temperature extremes, or pollen,” (5) was capable of “performing past relevant work as a school administrator,” which “did not require the performance of work-related activities precluded by” plaintiff’s RFC, and (6) was not disabled under the Social Security Act at the relevant time period. (AR 15-16.) The Appeals Council affirmed the ALJ’ s decision on March 12, 2013, finding, among other things, that the new medi cal records plaintiff had pres ented dated from November 20, 2012, did not cover the time period underlying th e ALJ’s decision (through December 31, 2009) (AR 2-3.) Plaintiff, now resi ding in the District of Columbia , timely filed this civil action on May 1, 2013. See Dec. 17, 2013 Order (Dkt. # 11). ANALYSIS I. LEGAL STANDARD A district court is limited in its review of the SSA's findings to a determination whether those findings are based on substan tial evidence. 42 U.S.C. § 405(g); Butler v. Barnhart , 353 F.3d 992, 999 (D.C. Cir. 2004); Poulin v. Bowen , 817 F.2d 865, 870 (D.C. Cir. 1987). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971). “The test ‘requires more than a scintilla, but can be satisf ied by something less than a preponderance of the evidence.’ ” Butler , 353 F.3d at 999 (quoting Fla. Mun. Power Agency v. Federal Energy Regulatory Comm'n , 315 F.3d 362, 365-66 (D.C. Cir. 2003)); see Turner v. Astrue , 710 F.Supp.2d 95, 104-05 (D.D.C. 2010). In order to qualify for disability benefits, an individual must prove that she has a disability that renders her unable “to engage in any substant ial gainful activity by reason of any4 medically determinable physical or mental impairment” for a period of “not less than 12 months.” 42 U.S.C. § 423(a)(1), (d)(1)(A). Th e claimant must support her claim of impairment with “[o]bjective medical eviden ce” that is “established by medically acceptable clinical or laboratory diagnostic techniques.” Id . § 423(d)(5)(A). In addition, the impairment must be severe enough to prevent the claimant from doing her previous work and work consummate with her age, education, and work experience that exists in the national economy. Id . § 423(d)(2)(A). The SSA sets out a five-step evaluation pro cess to determine whether a claimant is disabled so as to qualify for benefits. A clear de termination of disability or non-disability at any step is definitive, and the pr ocess ends at that step. Id . § 404.1520(a)(4). In the first step, a claimant is disqualified if she is currently engaged in “substantive gainful activity.” Id . § 404.1520(a)(4)(i). In the sec ond step, a claimant is disqualifiedif she does not have a “severe medically determinable physical or mental impa irment” that is proven “by medically acceptable clinical and laboratory diagnostic techniques.” Id . § 404.1520(a)(4)(ii). In the third step, a claimant qualifies for benefits if her impairment(s) meets or equa ls an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id . § 404.1520(a)(4)(iii). Betwee n the third and fourth step, the SSA uses the entire record to make a dete rmination of the claimant's RFC, which is “the most [the claimant] can still do despite [the] limitations” caused by the impairment. Id . §§ 401.1520(a)(4), 404.1545(a)(1). In the fourth step, a claimant is disqualified if her RFC shows that she is still able to do her past relevant work. Id . §§ 404.1520(a)(4)(v), 404.1545(a)(5)(ii). In the fifth step, a claimant is disqualified if her RF C shows that she is capable of adapting to “other work that exists in the national economy.” Id . §§ 404.1520(a)(4)(v), 404.1545(a )(5)(ii). If the claim survives these steps, the claimant is th en determined to be disabled and qualifies for5 benefits. Id . § 404.1520(a)(4)(v). In this case, the AL J disqualified plaintiff at steps three through five. II. THE ALJ’S DECISION The ALJ found that plaintiff’s medical r ecords failed to “reveal that her severe impairments are disabling [but gave plaintiff] the benefit of the doubt that these conditions do impose some limitations.” (AR 19.) The ALJ fo und that the evidence of plaintiff’s obesity, asthma, and sarcoidosis “supports a finding that [plaintiff’s] se vere impairments limit her to sedentary work,” further limited by lifting and carrying of “up to 10 pounds occasionally; never climb, must avoid exposure to hazards and avoid e xposure to temperature extremes and pollen.” (AR 19.) The ALJ determined that notwithstan ding her limitations, plaintiff could perform her past relevant work “as a sc hool administrator.” (AR 20.) The ALJ accorded “little weight” to Dr. Ro jugbokan’s opinion set out in the October 4 2012 letter because it contained no treatment notes “f or the relevant time period” and the clinic’s treatment notes “indicate that [plaintiff] was treated in January 2010 for a yearly [unrelated] examination[,] . . . in February 2010 for an earac he and headache[,] [and] in May 2010 . . . for a routine checkup . . . .” (AR 19.) The ALJ conc luded as to Dr. Rojugbokan that “[t]he medical evidence does not support a finding that [the docto r] treated the claimant for disabling medical conditions prior to, or in the immediate time following, the da te last insured (December 31, 2009). ( Id .) But defendant has since ag reed with plaintiff’s asserti on that the ALJ erred and that Dr. Rojugbokan had indeed treate d plaintiff at the clinic fo r asthma and coughs during the relevant time period. See Pl.’s Mem. at 38; Def.’s Mem. of P. & A. [Dkt. # 22] at 16. The ALJ accorded “limited weight” to Myers’ testimony about plaintiff’s impairments and limitations because Myers testified at the 20 12 hearing that she had known plaintiff for two6 years “and therefore was not an acquaintance . . . during the relevanttime period and is therefore an inappropriate historian for th e claimant’s condition at that time.” ( Id .) The ALJ accorded “significant weight” to th e “State Agency medical consultants who provided mental [RFC] assessments . . . insomuch as they are consistent with the medical evidence of record and support the ul timate finding of ‘not disabled’ ” ( Id .). The ALJ, however, assigned plaintiff “a more restrictive [RFC] beca use the evidence received at the hearing level shows that the claimant is more limited than [the consultants had] determined.” ( Id .) III. PLAINTIFF’S ARGUMENT FOR REVERSAL Plaintiff contends that remand is warrante d because the ALJ “omit[s] . . . material evidence of disability and require d regulatory analysis.” Pl.’s Mem. of P. & A. [Dkt. # 18, ECF pp. 8-40] at 14. She argues first that the ALJ’s finding that her asthma attacks failed to qualify as an “automatic disability, under Listing 3.03, is factually inaccurate” and “so profound [of an error] that it requires reversal and remand sole ly for the purpose of awarding the benefits to which the [p]laintiff was entitled years ago.” Id . at 16. Plaintiff relies upon the following regulation governing asthma attacks: Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurr ing at least once every 2 months or at least six times a year. Each in-patient hosp italization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation peri od of at least 12 consecutive months must be used to determine the frequency of attacks. 20 C.F.R. § 404.1, Subpt. P, App. 1., Listing 3.03B. And she has listed six episodes that she contends satisfy the foregoing crite ria. (Pl.’s Statement of Facts Supporting Mot. for Reversal of J. at 5-6.) In addition, plaintiff argues th at the ALJ failed to consider whether all of her listed impairments were severe, Pl.’s Mem. at 19-21, failed to develop the record by ordering7 consultative examinations, id . at 21-25, failed to consider favorable evidence of additional limitations that could have signifi cantly reduced plaintiff’s RFC, id . at 25-28, erroneously found that plaintiff could perform her pa st relevant work requiring light exertion while also finding that her RFC was limited to a restrict ed range of sedentary work, id . at 28-30, and failed to assess the treating physician’s opin ion in accordance with the law and the facts, id . at 37-39. In addition, plaintiff argues that the ALJ’s “credibility anal ysis is [][ factually and legally flawed.” Id . at 30-
37. IV. DEFENDANT’S ARGUMENT FOR AFFIRMANCE Defendant contends that the ALJ’s decision is substantiall y supported by the evidence but her arguments for the most part are no more than an attempt to rationalize a flawed administrative decision. See Espinosa v. Colvin , 953 F. Supp. 2d 25, 32 (D.D.C. 2013) (noting that “the Court may only consider the grounds proffered by the agency in its decision for post hoc rationalizations do not suffice”) (citation omitte d). As to plaintiff’s first argument in particular, defendant counters that the ALJ properly determined that plaintiff’s asthma attacks did not qualify as an automatic disability because she failed to satisfy “the regulatory definition” of an asthma attack for all but perhaps her hospitalization fr om December 31, 2008 to January 3, 2009 (constituting two attacks). Def.’s Mem. of P.&A. [Dkt. # 22] at 7. But the ALJ’s stepthree finding focuses mostly on plaintiff’s obe sity and only mentions “asthma attacks.” ( See AR 15-16.) There is no discussion in the decision about the regulatory de finition of an asthma attack and its application to plaintiff’ s evidence of asthma treatments. Consequently, the Court cannot determine if this evidence was reas onably rejected or “simply ignored.” Butler , 353 F.3d at 1002 (“The judiciary can scarcely perf orm its assigned review functi on, limited thought it is, without8 some indication not only of what evidence was credited, but also whether other evidence was rejected rather than simply ignored.”) (cit ation and internal quotation marks omitted). Similarly, the ALJ purportedly considered “the combined effects of claimant’s impairments, both severe and non-severe” but then concluded that “[t]here is no indicat[ion] the claimant’s obesity contributed significantly to her breathing difficulties, caused musculoskeletal problems, or resulted in cardiovascular disease. ” (AR 16) (emphasis added). The ALJ did not address most of plaintiff’s other disabling impairments, particularly her sarcoidosis, arthritis (and need for knee braces), high blood pressure, and ca rpal tunnel syndrome; thus, the Court cannot ascertain from the decision if plaintiff’s eviden ce on those impairments was reasonably rejected or improperly ignored. In sum, the ALJ concludes at step three that plaintiff’s impairments were “not at least equal in severity to those described in Listing 3.0 3” (AR at 16) without citing the evidence that led to this conclusion and explai ning why plaintiff’s evidence about certain impairments was not credited. ( See Pl.’s Mem. at 17-18.) In addition, unlike defendant, the Court does not consider the ALJ’s now-admittedly erroneous statement with regard to the timi ng of Dr. Rojugbokan’s treatment of plaintiff’s disabling conditions to be a “minor error.” Def.’s Mem. at 16. It is reasonably safe to assume that this error figured prominently in the ALJ’ s decision to accord “little weight” to the opinion of Dr. Rojugbokan as plaintiff’s treating physician at the Cross Hea lth Center. Plaintiff testified that on nearly a monthly basis between January 2009 and December 2009, she was treated at the clinic because she could not breathe, and for “body ache; heart beating fast; I feel like I’m dying; kept coughing and spitting. The cough wouldn’t stop – uncontrollable cough, and that’s not normal.” (Hr’g Tr. [Dkt. # 20-2] at 34-35.) “Pursu ant to this Circuit's ‘t reating physician rule,’ a treating physician's report is binding on the f act-finder unless contradicted by substantial9 evidence.” Espinosa , 953 F. Supp. 2d at 32 (quoting Butler v. Barnhart , 353 F.3d 992, 1003 (D.C. Cir. 2004)) (internal quotation marks and c itations omitted). A remand is necessary for the ALJ to reconsider Dr. Rojugbokan’s opinion in light of the foregoing correction. Since the remand will require r econsideration of the ALJ’s st ep three determination, the Court will not address in any detail the ALJ’s fi ndings under steps four and five. Should the ALJ again reach steps four and five, the Court finds the conclusion that plaintiff could perform her past relevant work as a school administrator (AR 20) arbitrary in the absence of any findings as to what such work entailed. In addition, the ALJ should clarify to what ex tent, if any, plaintiff’s impairments beyond those related to her obesity were considered in evaluating her RFC. For the foregoing reasons, the Court agrees that the case should be remanded, albeit for further proceedings since the C ourt does not find the evidence inthe record to be “clearly indicative of disability.” Espinosa , 953 F. Supp. 2d at 35- 36. Accordingly, it is ORDERED that Plaintiff’s Motion for Revers al of Judgment [Dkt. # 18] is GRANTED ; it is further ORDERED that Defendant’s Motion for Judgme nt of Affirmance [Dkt. # 21] is DENIED ; it is further ORDERED that this case is REMANDED to the Social Security Commissioner for further proceedings.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: May 30, 2014