McKnight v. Office of Disability Adjudication and Review

Filing 25

MEMORANDUM Signed by Magistrate Judge Susan K. Gauvey on 8/8/13. (c/m 8/9/13 cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
SUSAN K. GAUVEY
U.S. MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[e-mail]
[phone]
[phone] – Fax

August 8, 2013

Randell McKnight
1509 Pressman Street
Baltimore, MD 21217
Alex S. Gordon
Assistant United States Attorney
36 South Charles Street, 4th Floor
Baltimore, MD 21201
Re: Randell McKnight v. Office of Disability Adjudication
and Review
Civil No. SKG-12-2901
Dear Mr. McKnight and Counsel:
Plaintiff

Randell

McKnight

(“Mr.

McKnight”)

filed

a

complaint in this Court challenging the final decision of the
Acting Commissioner of the Social Security Administration (“the
Commissioner”)

regarding

his

claim

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under
sections 205(g) and 1631(c)(3) of the Social Security Act (“the
Act”).

Defendant, the Office of Disability Adjudication and

Review, filed this motion seeking summary judgment affirming the
decision.

This

case

has

been

referred

to

the

undersigned

magistrate judge by consent of the parties pursuant to 28 U.S.C.
§ 636(c) and Local Rule 301.

(ECF 6, 14).

necessary. Local Rule 105.6.
1 

No hearing is

Currently pending before the Court is defendant’s motion
for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure.

(ECF No. 23-1).

Plaintiff has not responded

to this motion (ECF No. 24), but the Court has reviewed the
decision of the Administrative Law Judge (“ALJ”) in full.

1

For

the reasons that follow, this Court GRANTS defendant’s motion
for

summary

judgment

and

AFFIRMS

the

decision

of

the

Commissioner.
I.

Procedural History

On November 4, 2009, Mr. McKnight filed a Title II application
for

disability

insurance

benefits,

as

well

as

application for supplemental security income.
McKnight was last insured on March 31, 2012.
disability beginning February 1, 2009.

Id.

a

Title

(R. 12).
Id.

XVI
Mr.

He claimed

On April 13, 2010,

plaintiff’s applications were denied at the initial level; on
December 20, 2010, they were denied again upon reconsideration.
(R. 66, 70).

The plaintiff subsequently requested a hearing,

which was held before ALJ Vivian W. Mittleman on November 21,
2011.

(R. 12).

That same day, the ALJ issued a partially

favorable decision that Mr. McKnight was not disabled within the
meaning of the Act prior to July 5, 2011, but became disabled on
that date and has remained disabled since.

(R. 12).

1

Mr. McKnight had the opportunity to file a cross-motion for summary
judgment, but did not do so despite an extension of time from the Court. (ECF
No. 22)

2 

The Appeals Council denied plaintiff’s request for review,
making the ALJ’s decision the final decision of the Agency.
1).

(R.

Plaintiff now seeks review of that decision pursuant to 42

U.S.C. § 405 (g).
II.

Factual History

The Court has reviewed the defendant’s Statement of the Facts
(ECF No. 23-1, 2-10) and, finding that it accurately represents
the record in all material respects, hereby adopts it.
III. Defendant’s Motion for Summary Judgment
In his Complaint, the plaintiff did not identify any specific
errors in the Commissioner’s decision. The Court assumes he is
challenging the Commissioner’s rejection of any disability onset
date earlier than July 5, 2011, as otherwise the decision was
favorable.

The defendant argues that the Acting Commissioner

was correct in deciding that Mr. McKnight was disabled within
the meaning of the Social Security Act since July 5, 2011, but
not

before.

decision

was

Specifically,
both

the

reasonable

defendant

and

avers

supported

by

that

this

substantial

evidence in the record, and thus plaintiff’s appeal should be
denied.

The defendant’s arguments are well-taken and considered

in the Court’s review of the ALJ’s findings.
IV.

Standard of Review

The function of this Court on review is to leave the findings
of fact to the agency and to determine upon the whole record
3 

whether

the

evidence,

agency’s

not

to

decision

try

is

supported

plaintiff’s

claim

substantial

novo.

de

by

King

v.

Califano, 599 F.2d 597, 598 (4th Cir. 1979). This Court must
uphold

the

Commissioner’s

decision

if

it

is

supported

by

substantial evidence and if the ALJ employed the proper legal
standards.

42

U.S.C.

§§

405(g),

1383(c)(3)

(2001);

Craig

v.

Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987).

Substantial evidence “consists

of more than a scintilla of evidence but may be somewhat less
than a preponderance.”

Laws v. Celebrezze, 368 F.2d 640, 642

(4th Cir. 1966). It is “such relevant evidence as a reasonable
mind

might

accept

to

support

a

conclusion.”

Richardson

v.

Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted).
In

reviewing

conflicting

the

decision,

evidence,

make

this

Court

credibility

will

not

re-weigh

determinations,

or

substitute its judgment for that of the Commissioner. Craig, 76
F.3d at 589; Hayes v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990).

The

Commissioner,

as

fact

finder,

is

responsible

for

resolving conflicts in the evidence. Snyder v. Ribicoff, 307
F.2d 518, 520 (4th Cir. 1962). If the Commissioner’s findings
are supported by substantial evidence, this Court is bound to
accept

them.

Underwood

v.

Ribicoff,

298

F.2d

850

(4th

Cir.

1962). However, despite deference to the Commissioner’s findings
of fact, “a factual finding by the ALJ is not binding if it was
4 

reached by means of an improper standard or misapplication of
the law.” Coffman, 829 F.2d at 517. The Court has authority
under

42

U.S.C.

§

405(g)

to

affirm,

modify,

or

reverse

the

decision of the agency “with or without remanding the case for a
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
V.
As

Discussion of ALJ Findings
noted,

plaintiff

offers

no

arguments

defendant’s motion for summary judgment.

in

response

to

Accordingly, the Court

has no specific issues within the ALJ’s decision to address, but
reviews

it

in

its

entirety.

The

Court

finds

that

the

ALJ’s

determinations were proper under the law.
In reviewing a claimant’s eligibility for DIB and SSI, an ALJ
must consider all of the evidence in the record and follow the
sequential five-step analysis set forth in the regulations to
determine whether the claimant is disabled as defined by the
Act. 20 C.F.R § 416.920(a).

If the agency can make a disability

determination at any point in the sequential analysis, it does
not

review

the

claim

further.

20

C.F.R.

§

404.1520(a)(4).2

After proceeding through each of the required steps, the ALJ in
this

case

concluded

that

Mr.

McKnight

was

not

disabled

as

2

Disability is defined in the Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or has lasted
or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 416(i)(1)(A).

5 

defined by the Act prior to July 5, 2011, but was disabled after
that date. (R. 12).
A. Step One
At the first step, the claimant must prove that he is not
engaged

in

“substantial

416.920(a)(4)(i).
in

“substantial

gainful

gainful

activity,”

Id.

had

substantial

engaged

in

alleged onset date.
denied

working

20

C.F.R.

§

If the ALJ finds that the claimant is engaged

considered disabled.
not

activity.”3

at

or

she

will

not

be

The ALJ concluded that Mr. McKnight

(R. 15).
all

he

gainful

activity

since

the

The ALJ noted that Mr. McKnight

during

this

period,

though

this

was

contradicted by a report that he had visited the emergency room
during that same period because of an injury sustained while
working for a local mover.

Id. Regardless, the ALJ concluded

that such work did not rise to the level of substantial gainful
activity, as it was unreported and impossible to determine how
much money was earned. Id.
Defendant argues that the ALJ properly completed this step,
and the Court agrees.
work

is

not

(ECF No. 23-1, 16).

categorically

excluded

from

While unreported
qualifying

as

3

Substantial gainful activity is defined as “work activity that is both
substantial and gainful.” 20 C.F.R. § 416.972. Work activity is substantial
if it involves doing significant physical or mental activities and even if it
is part time or if plaintiff is doing less, being paid less, or has fewer
responsibilities than when she worked before. 20 C.F.R. § 416.972(b).
Substantial gainful activity does not include activities such as household
tasks, taking care of oneself, social programs, or therapy. 20 C.F.R. §
416.972(c).

6 

substantial gainful activity, it may contribute to an incomplete
record which fails to illustrate “significant physical or mental
activities”
activity.

sufficient

to

be

considered

20 CFR § 404.1572(a);

3:07CV0001,

2008

2008)(affirming

WL

ALJ

114909,

at

decision

substantial

work

See Drumheller v. Astrue, No.
*1

which,

n.1
in

(W.D.
part,

Va.

Jan.

10,

noted

that

the

claimant’s “significant” unreported work could likely qualify as
substantial gainful activity but for the incomplete nature of
the

record).

The

ALJ

properly

noted

that,

even

including

occasional temporary work, claimant’s record did not illustrate
any substantial work activity.

(R. 15).

The ALJ’s analysis of

this issue was accordingly proper.
B. Step Two
At the second step, the ALJ must determine whether the
claimant has a severe, medically determinable impairment or a
combination of impairments that limit his ability to perform
basic work activities.

20 C.F.R. §§ 404.1520(c), 416.920(c);

see also 20 C.F.R. §§ 404.1521, 416.921. In addition, there is a
durational requirement that the claimant’s impairment last or be
expected to last for at least 12 months.
Upon
McKnight’s

review,

the

impairments

ALJ

determined

qualify

as

20 C.F.R. § 416.909.
that

several

severe,

of

Mr.

including:

degenerative disc disease of the lumbar spine, asthma, drug and
alcohol abuse, and adjustment disorder with depressed mood and
7 

anxiety.

(R.15).

several

The ALJ also concluded that Mr. McKnight had

non-severe

conditions,

including

bilateral

bunion

deformity and status post surgical repair of recurrent rectal
abscess.

The ALJ noted that these conditions are repairable and

thus

normally

not

expected

to

last

a

continuous

12

months;

notably, Mr. McKnight was only precluded from surgery because of
his refusal to quit smoking.

(R. 15, 572).

Defendant asserts that the ALJ properly completed Step two
of the sequential evaluation process, and this Court agrees.
(ECF No. 23-1, 16-17).

The ALJ sufficiently followed 20 C.F.R.

§ 416.921, which asks whether the conditions would have “more
than a minimal effect on the claimant’s ability to perform basic
work activities.”

(R. 15).

In addition, the ALJ reviewed the

duration of Mr. McKnight’s impairments, as well as his noncompliance

with

prescribed

impairments

non-severe.

treatment,

Id.

This

is

to

find

appropriate

several
under

20

C.F.R. § 416.909, which requires an impairment to last 12 months
to

be

considered

severe,

and

20

C.F.R.

§

404.1530,

requires a claimant to follow prescribed treatment.

which

The ALJ

followed the proper steps for making her finding.
C. Step Three
At the third step, the ALJ considers whether the claimant’s
impairments,

either

individually

or

in

combination,

meet

or

equal an impairment enumerated in the “Listing of Impairments”
8 

in

20

C.F.R.

§

404,

416.920(a)(4)(iii).

Subpart

P,

Appendix

1.

20

C.F.R.

§

If one of the Listings is met, disability

will be found without consideration of age, education, or work
experience. 20 C.F.R. § § 404.1520(d), 416.920(d).
ALJ

found

that

combination
enumerated

of
in

Mr.

McKnight

impairments
the

does

not

that

Listings

meet

(R.

17).

have
or

an

equal

Here, the

impairment
an

or

impairment

Specifically,

the

ALJ

reviewed Listings 1.04 (disorder of the spine), 3.01 (chronic
pulmonary

insufficiency),

and

the

mental

disorders

listings.

(R. 15).
In order to meet Listing 1.04 regarding a disorder of the
spine, the claimant must show medical documents evidencing the
compromise of a nerve root or the spinal cord.
Subpart P, Appendix 1.

(R. 15).

and,

evidence

finding

no

such

20 CFR § 404,

The ALJ examined the record,
existed,

concluded

that

Mr.

McKnight’s impairment did not meet the requirements of Listing
1.04.

(R. 15).
Similarly, the ALJ did not find evidence sufficient to show

chronic pulmonary insufficiency under Listing 3.01.
That

listing

requires

the

claimant

have

chronic

(R. 15).
obstructive

pulmonary disease with the FEV equal to or less than the values
specified in Table I or chronic restrictive ventilator disease
with the FVC equal to or less than the values specified in Table
II (both provided in the Appendix).
9 

20 CFR § 404, Subpart P,

Appendix 1.

The ALJ examined the record and found that two

separate tests established claimant’s FEV and FVC values as well
above the listing levels for his height, even despite the fact
that the claimant “gave very poor effort” during one of the
tests.

(R. 15).

Defendant correctly notes that a claimant must demonstrate
impairments

which,

alone

or

in

combination,

satisfy

all

elements of a listed impairment to meet the Listing.

the

(ECF No.

23-1, 17)(citing Sullivan v. Zebley, et al., 493 U.S. 521, 530
(1990)).

It is clear from the written decision of the ALJ that

Mr. McKnight did not meet this burden in regard to Listings 1.04
(disorder

of

the

insufficiency).

spine)

(R. 14-15).

and

3.01

(chronic

pulmonary

Accordingly, this Court finds the

ALJ’s evaluation of these impairments to be in accordance with
governing law and the record.
Next, the ALJ evaluated Mr. McKnight’s mental limitations
and found they did not meet the requirements of the broad mental
impairment listings of 20 CFR § 404, Subpart P, Appendix 1.
16).

A mental impairment must meet the requirements of the

Listing’s
alone.
requires

“paragraph

A”

and

“paragraph

B”

or

20 CFR § 404, Subpart P, Appendix 1.
documentation

“paragraph
impairment.

B”

of

considers

Id.

a

what

medically

“paragraph

are

C”

“Paragraph A”

persistent

limitations

impairment;

caused

by

the

If paragraphs “A” and “B” are not met, the
10 

(R.

claimant may demonstrate “paragraph C,” which looks at whether
the limitation has resulted in a period of at least two years
where the claimant faced “more than a minimal limitation of
ability to do basic work activities.”
In

addressing

this

issue,

Id.

the

ALJ

recognized

that

Mr.

McKnight does not evidence signs and symptoms of any particular
mental disorder under “paragraph A” of 20 CFR § 404, Subpart P,
Appendix 1.

(R. 16).

384

2000)(noting

(D.

Md.

See Huntington v. Apfel, 101 F.Supp 2d
that

when

there

is

no

factual

or

medical support for much of a Listing, the ALJ need not compare
medical evidence to the record in her written decision).
ALJ

did,

however,

recognize

that

Mr.

McKnight

faces

The

several

limitations consistent with mental disorders and described in
paragraph B, including: moderate restriction in activities of
daily

living,

functioning,

moderate
and

difficulties

moderate

in

maintaining

difficulties

concentration, persistence, or pace.

Id.

in

social

maintaining

This is critical to

note because even if a claimant fails to meet a Listing, the
“cumulative

effect

the

impairments

ability to work” may be disabling.

ha[ve]

on

the

claimant’s

Walker v. Brown, 889 F.2d

47, 49 (4th Cir. 1989).
The ALJ determined, however, that the cumulative effects of
Mr.

McKnight’s

Listing.

limitations

(R. 16).

do

not

to

the

level

of

any

Defendant asserts this determination was
11 

rise

proper,

as

severity

claimant

of

any

failed

to

Listing.

show

(ECF

his

No.

impairments

23-1,

17).

met

This

the

Court

agrees, but notes that the ALJ’s explanation in this section is
in some respects wanting, though not legally inadequate.

For

example, the ALJ failed to explicitly elaborate on the finding
that

Mr.

McKnight

suffered

from

moderate

difficulties

maintaining concentration, persistence or pace.

(R. 16).

in
This

is in contrast to the more fully developed discussion of Mr.
McKnight’s

limitations

regarding

activities

of

daily

living,

where the ALJ alluded to evidence regarding his personal care,
shopping habits, and completion of chores.
ALJ

properly

evaluated

Mr.

McKnight’s

Id.

social

Similarly, the
functioning

by

considering his capacity to interact with others in a variety of
circumstances,

including

individual encounters.
evaluate

an

on
Id.

public

transportation

and

during

It is understandably difficult to

unemployed

claimant’s

ability

regarding

concentration, persistence, or pace, when such ability is often
assessed in work settings.
However,

it

would

have

20 CFR § 404, Subpart P, Appendix 1.

been

preferable

for

the

ALJ

to,

at

minimum, discuss available evidence supporting her conclusion,
such as Mr. McKnight’s participation in college-level courses,
his ability to complete assigned tasks at work, especially the
supervision

of

other

schedule independently.

workers,

and

ability

(R. 21, 192-204, 205-213).
12 

his

to

plan

his

Finally,

the

ALJ

considered

ability under “paragraph C.”
1.

Mr.

McKnight’s

functional

20 CFR § 404, Subpart P, Appendix

Specifically, the ALJ noted that Mr. McKnight has not faced

any episodes of decomposition of extended duration, and has the
ability

to

function

arrangement.”

outside

of

a

“highly

supportive

living

20 CFR § 404, Subpart P, Appendix 1; (R. 17).

Again, the defendant asserts that the ALJ engaged in a proper
evaluation of the record under the law, and this Court agrees.
Id.; (R. 17).
Before an ALJ advances to the fourth step of the sequential
analysis, she must assess the claimant’s “residual functional
capacity” (“RFC”), which is used at the fourth and fifth steps
of the analysis.
of

an

20 C.F.R. § 404.1520(e).

individual’s

ability

to

do

RFC is an assessment

sustained,

work-related

physical and mental activities in a work setting on a regular
and continuing basis.

Social Security Ruling (SSR) 96-8p.

The

ALJ must consider even those impairments that are not “severe.”
20 C.F.R. § 404.1545(a)(2).
ALJs

evaluate

the

In determining a claimant’s RFC,

claimant’s

subjective

allegations of pain, using a two-part test.

symptoms,

such

as

Craig v. Chater, 76

F.3d 585, 594 (4th Cir. 1996); 20 C.F.R. § 404.1529. First, the
ALJ

must

existence

determine
of

a

whether

medical

objective

impairment

that

evidence
could

expected to produce the actual alleged symptoms.
13 

shows

reasonably

the
be

20 C.F.R. §

404.1529(b).

Second, the ALJ must consider all the available

evidence, including medical history, objective medical evidence,
and statements by the claimant, to evaluate the extent to which
the symptoms limit the claimant’s capacity to work.
404.1529(c).
credibility

20 C.F.R. §

As part of this evaluation, the ALJ assesses the
of

the

claimant's

statements,

as

symptoms

can

sometimes manifest at a greater level of severity of impairment
than is shown by solely objective medical evidence.

SSR 96-7p.

In determining credibility, the ALJ should consider factors such
as the claimant’s daily activities, treatments he has received
for

his

symptoms,

medications,

and

contributing to functional limitations.

any

other

factors

Id.

Here, the ALJ determined that, with his substance abuse,
Mr. McKnight has the RFC to perform light work,4 except that he
is further limited to: occasional balancing, stooping, kneeling,
crouching,
climbing

crawling,

ladders,

and

ropes

climbing
or

ramps

scaffolds;

or

stairs;

avoiding

never

concentrated

exposure to fumes, odors, dusts, gases, and poor ventilation;

4

The ALJ pointed to the definition of “light work” as provided in 20 CFR
404.1567(b) and 416.967(b), which read as follows: “Light work involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially
all of these activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods
of time.”

14 

avoiding all hazards, such as machinery and heights; simple,
routine, repetitive work; and, has poor to no ability to work
with others or deal with work stress.

(R. 17).

At the first step in determining RFC, the ALJ found that
medical opinions and other evidence show that Mr. McKnight’s
“medically determinable impairments could reasonably be expected
to cause the alleged symptoms.”

(R. 17).

At the second step,

however, the ALJ concluded the claimant could not be considered
credible.

(R. 17).

In viewing the record as a whole, the ALJ

noted Mr. McKnight’s credibility was degraded by: his frequent
drug

and

alcohol

use,

including

appearing

to

be

under

the

influence at his hearing; his inconsistent gait, which is very
often

observed

appointments,

to

but

be

normal

abnormal

during

when

seeking

his

mental

refills

on

health

his

pain

medications; and his denial of having worked in 2009, despite
evidence on the record to the contrary.
Defendant

argues

that

the

(R. 17-19).
ALJ

gave

appropriate

consideration to Mr. McKnight’s credibility and allegations of
pain.

This Court agrees, and notes that the credibility of a

claimant is often best determined by an ALJ.

See Shively v.

Heckler, 739 F.2d 987, 989-90 (4th Cir. 1984)(explaining that,
because an ALJ has the “opportunity to observe the demeanor and
to determine the credibility of the claimant,” the ALJ’s opinion
on the matter of credibility is to be given great weight). The
15 

ALJ

engaged

in

the

proper

two-step

test

to

determine

RFC,

considering a variety of relevant medical evidence as well as
testimony from the hearing. (R. 17-19).

The ALJ’s decision

regarding Mr. McKnight’s credibility is thus proper.

(R. 17-

19).
D. Step Four
At the fourth step of the sequential analysis, the ALJ must
consider

whether

perform

past

416.920(e).

the

claimant

relevant

retains

work.

20

the

RFC

C.F.R.

necessary

§§

to

404.1520(e),

The ALJ relied on the Vocational Expert’s (“VE”)

testimony that Mr. McKnight’s past relevant work, as a mover’s
helper, was unskilled and heavy to very heavy in exertion, his
work

as

a

delivery

driver

was

semi-skilled

and

heavy

in

exertion, and his work as a temporary laborer was unskilled and
heavy to very exertion.

(R. 19).

The ALJ concluded that the

claimant, being now limited to only light exertion, is unable to
perform his past relevant work.

(R. 19).

Defendant believes this step was performed properly, and
this Court agrees.

(ECF No. 23-1, 20).

The role of a VE in

assessing a claimant’s ability to perform past relevant work is
to

“assist

available

the
in

ALJ

the

in

determining

national

claimant can perform.”

economy

whether
which

th[e]

is

work

particular

Walker v. Brown, 889 F.2d 47, 50 (4th

Cir. 1989); 20 C.F.R. § 404.1560(b)(2).
16 

there

To be of use, the VE

must be familiar with the record and respond to hypothetical
questions

which

include

all

of

Walker, 889 F.2d at 50-51.

the

claimant’s

impairments.

Here, the VE testified that he

reviewed the vocational history in this case, and he responded
to

a

hypothetical

impairments.
method

to

which

fairly

(R. 47-50).

come

to

a

laid

out

Mr.

McKnight’s

Again, the ALJ’s used the proper

conclusion

supported

by

the

record

and

expert testimony.
E. Step Five
Where, as here, the claimant is unable to resume his past
relevant work, the ALJ proceeds to the fifth and final step of
the

sequential

analysis.

This

step

requires

consideration

of

whether, in light of vocational factors such as age, education,
work experience, and RFC, the claimant is capable of other work
in

the

national

416.920(g).

economy.

20

C.F.R.

§§

404.1520(g)

and

At this step, the burden of proof shifts to the

agency to establish that the claimant retains the RFC to engage
in an alternative job which exists in the national economy.
McLain

v.

Schweiker,

715

F.2d

866,

868-69

(4th

Cir.

1983);

Wilson v. 11 Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The
agency must prove both the claimant’s capacity to perform the
job and that the job is available. Grant v. Schweiker, 699 F.2d
189, 191 (4th Cir. 1983). Before the agency may conclude that
the

claimant

can

perform

alternative
17 

skilled

or

semi-skilled

work,

it

must

transferable

to

show

that

those

he

possesses

alternative

skills

positions

or

that

that

are

no

such

transferable skills are necessary. McLain, 715 F.2d at 869.
In this case, the ALJ found that, due to limitations from
all

his

impairments

including

substance

abuse

disorders,

Mr.

McKnight is unable to make “a successful vocational adjustment
to

work

that

exists

economy.”

(R.

disabled.

Id.

in

significant

20).

The

This

ALJ

conclusion

numbers

in

was

national

found

accordingly

the

claimant

proper,

in

particular

because the ALJ took into consideration relevant factors, such
as

the

claimant’s

age,

education

(noting

that

Mr.

McKnight

possessed no transferable skills), work experience, and residual
functioning

capacity.

(R.

20-21);

20

CFR

§

404,

Subpart

P,

Appendix 2.
Finally, the ALJ reviewed whether the claimant’s substance
abuse was a contributing factor to his disability; if so, the
disability

finding

416.935 (R. 14).
and

alcohol

regarding

would

not

stand.

20

CFR

§§404.1535

and

The ALJ concluded that, even without his drug

abuse,

capability

Mr.
for

McKnight’s
only

light,

remaining
not

medium

limitations
or

heavy

exertion, prevented him from performing past relevant work.

(R.

24).

Mr.

However,

the

ALJ

further

concluded

that,

before

McKnight turned 55 and became a person of advanced age, Mr.
McKnight would have been able to perform other jobs existing in
18 

significant numbers in the national economy had he refrained
from substance abuse.

Id.

Accordingly, the ALJ found that Mr.

McKnight was not disabled prior to his 55th birthday on July 5,
2011, because substance abuse was a contributing factor material
to the disability determination at that time.

Id.

After that

date, however, the exertional limitations, his age, education,
and work experience qualified him as disabled regardless of his
substance use. Id.
Defendant argues that the ALJ properly considered the VE’s
testimony and record to conclude that Mr. McKnight’s substance
abuse prevented a finding of disabled before July 5, 2011.
No.

23-1,

McKnight’s

22).

Indeed,

disability

abuse is proper.

the

consideration

designation

was

based

of
on

whether
his

(ECF
Mr.

substance

In Blankenship v. Astrue, 635 F.Supp.2d 447

(W.D. Va. 2009), the United States District Court of the Western
District of Virginia considered a similar case where the ALJ
determined that the claimant, who suffered liver damage from
alcoholism, was not disabled because she “could have worked on a
regular and sustained basis had she abstained from the use of
alcohol.”

Similarly,

the

testimony

of

the

VE

supports

the

conclusion that Mr. McKnight could have worked prior to July 5,
2011, but for his substance abuse.
certainly

is

evidence

in

the

record

(R. 49-50).
supporting

While there
a

disability

determination prior to July 2011 (e.g., being unable to lift
19 

more than 20 pounds), there is also certainly evidence in the
record demonstrating his major substance abuse prior to July
2011

affecting

his

ability

to

work

(see,

e.g.,

his

Mental

Residual Functional Capacity Assessment from December 17, 2010).
(R. 19, 442-44).

The written decision of the ALJ included an

extensive and useful discussion of such evidence.
Accordingly,

the

ALJ

properly

ruled

the

(R. 16-19).

claimant

was

not

disabled prior to July 5, 2011.
VI.

Conclusion

For the foregoing reasons, the Court hereby GRANTS defendant’s
motion for summary judgment and AFFIRMS the decision of the
Commissioner.

Date: 8/8/2013

/S/
Susan K. Gauvey
United States Magistrate Judge

20