Seaward v. Astrue

Filing 24

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 11/6/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
WILLIE SEAWARD,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 12-3517

MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Willie Seaward (“Plaintiff”) seeks judicial review under 42 U.S.C. § 405(g) of a final
decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying
his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 14) and Defendant’s
Motion for Summary Judgment (ECF No. 23).2 Plaintiff contends that the administrative record
does not contain substantial evidence to support the Commissioner’s decision that he is not
disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion

1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed.
R. Civ. P. 25(d).
2

The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.

for Summary Judgment (ECF No. 23) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 14) is DENIED, and the Commissioner’s decision is AFFIRMED.
I
Background
Plaintiff was born in 1964, has a high-school education, and previously worked as an
automotive mechanic. R. at 19. Plaintiff applied for DIB protectively on March 18, 2004,
alleging disability beginning on July 18, 2000, due to back and leg injuries. R. at 14, 78-80, 8788. The Commissioner denied Plaintiff’s application initially and again on reconsideration;
consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at
26-35, 37-38.
An ALJ held a hearing on May 10, 2006 (R. at 372-418), and issued an unfavorable
decision on August 21, 2006 (R. at 12-20). On May 4, 2007, the Appeals Council denied
Plaintiff’s request for review. R. at 5-7, 11. Plaintiff sought judicial review in this Court.
Seaward v. Astrue, Civil No. JKS 07-1709 (D. Md. filed June 28, 2007).

Upon the

Commissioner’s consent, the Court remanded the case on June 4, 2008. R. at 440-41.
The Appeals Council vacated the ALJ’s decision and remanded the case on July 27,
2008. R. at 442-44. The ALJ held a hearing on October 21, 2008 (R. at 474-93), and issued an
unfavorable decision on November 26, 2008 (R. at 419-38, 522-39). Plaintiff again sought
judicial review in this Court. Seaward v. Astrue, Civil No. JKS 09-579 (D. Md. filed Mar. 9,
2009). Upon the Commissioner’s consent, the Court remanded the case on July 12, 2010.
The Appeals Council remanded the case to a different ALJ on March 8, 2011. R. at 54044. ALJ C.J. Sturek held a hearing on December 22, 2011, at which Plaintiff and a vocational
expert (“VE”) testified. R. at 876-903. On March 26, 2012, the ALJ issued a decision finding

2

Plaintiff not disabled from the alleged onset date of disability of July 18, 2000, through the date
last insured of December 31, 2005. R. at 504-21. On July 18, 2012, Plaintiff filed exceptions to
the decision with the Appeals Council (R. at 498-99), which declined to assume jurisdiction on
September 25, 2012 (R. at 494-97). The ALJ’s decision thus became the final decision of the
Commissioner after remand. See 20 C.F.R. § 404.984(b)(2).
On November 29, 2012, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.

The case subsequently was

reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.
II
Summary of Evidence
A.

State Agency Medical Consultants
On February 7, 2005, James Biddison, M.D., a state agency medical consultant, assessed

Plaintiff’s physical residual functional capacity (“RFC”). R. at 323-30. Dr. Biddison opined that
Plaintiff could (1) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand
and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in
an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 324. Plaintiff
occasionally could climb, stoop, and kneel. R. at 325. He frequently could balance, crouch, and
crawl. R. at 325. Plaintiff had no manipulative, visual, communicative, or environmental
limitations, however. R. at 326-27.
On August 31, 2005, another state agency medical consultant, Mark Feld, M.D., also
assessed Plaintiff’s physical RFC. R. at 332-39. Dr. Feld opined that Plaintiff could (1) lift

3

and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk for a total
of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday;
and (4) perform unlimited pushing and/or pulling. R. at 333. Although Dr. Feld also opined that
Plaintiff had no manipulative, visual, communicative, or environmental limitations, the doctor
determined that Plaintiff occasionally could stoop, kneel, crouch, crawl, and climb ladders,
ropes, and scaffolds. R. at 334-36.
B.

Hearing Testimony
1.

Plaintiff’s Testimony

In his decision, the ALJ reviewed Plaintiff’s testimony:
At the hearing, [Plaintiff] testified that he is unable to work due to back
pain that he suffered between 2000 and 2005. He indicated that he was prescribed
a cane in 2001. He testified that he used a cane to walk or stand during the
relevant period. He also testified that he spent half of his day lying down, due to
pain, and that he would only be active for an hour before he would have to lie
down. In addition, he testified he could sit . . . for fifteen to twenty minutes, or up
to an hour, and that he could stand for five minutes to relieve pressure on his
back.
[Plaintiff] testified further that he suffered from numbness in his hands
during the relevant time period.
In terms of activities of daily living, he testified that he drove a vehicle
from 2000 to 2005 and would visit his parents, who live approximately fifteen
miles away from him. He indicated he drove approximately once per week. He
indicated that he performed no household chores, but shopped for groceries with
his wife. He also testified that he watched television and attended church twice
per month, which lasted for approximately two hours. He testified that he does
not read and has no hobbies. Other than physical therapy, he indicated that he
does not exercise.
To help him sleep during the night, he testified that he would take
medication. He indicated that he slept approximately five hours per night and
would sleep during the day, due to medication. With respect to side effects from
his medication (Vicodin and Motrin), he testified that he experiences drowsiness.
While he indicated that the medication relieved his pain for approximately four
hours, he also indicated that the medication did not relieve the pressure. He also
indicated that the medication would take approximately an hour to take effect.
4

R. at 512; see R. at 881-99.
2.

VE Testimony

Plaintiff’s past work as an automotive mechanic is skilled and heavy.3 R. at 519, 885. A
hypothetical person of Plaintiff’s same age, education, and work experience with the ALJ’s RFC
assessment as stated below could work as an order clerk or document preparer. R. at 520, 899901. If Plaintiff’s testimony were credible, however, he could not maintain any full-time work.
R. at 901-02. A person using a cane to stand would not be able to work if that person used the
cane with the dominant hand and did not have enough function in the other hand to maintain
productivity. R. at 902-03. According to the VE, the job of order clerk can be performed with
one hand. R. at 903.
The Court reviews other portions of the record more fully in its discussion of Plaintiff’s
arguments below. See infra Part VI.
III
Summary of ALJ’s Decision
On March 26, 2012, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of July 18, 2000; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform his past relevant work; but (5) could
perform other work in the national economy, such as an order clerk or document preparer. R. at
3

“Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds.” 20 C.F.R. § 404.1567(d).
5

510-20. The ALJ accordingly found that he was not disabled from July 18, 2000, through the
date last insured of December 31, 2005. R. at 520.
In finding that Plaintiff did not have an impairment or a combination of impairments
meeting or equaling a listed impairment, the ALJ stated:
[Plaintiff’s] representative argued that [his] back impairment meets Listing 1.04.
The undersigned disagrees. In making this finding, the undersigned considered
Listing 1.04. Listing 1.04 is not met because there is no evidence of nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis combined with either
an inability to ambulate effectively, sensory or reflex loss, or the need for changes
in position or posture more than once every two hours. [Plaintiff’s] physical
impairments do not meet or medically equal the criteria of Listing 1.04. The
undersigned’s finding is based upon the review of the evidence of record and
based on the fact that no consultative examiner, treating source, medical expert, or
Disability Determination Services (DDS) examiner has found that [Plaintiff]
meets or equals a listing.
R. at 510-11.
The ALJ found that, through the date last insured, Plaintiff had the RFC
to perform sedentary work, as defined in 20 CFR 404.1567(a), except with the
following limitations. [Plaintiff] can lift up to five pounds frequently and up to
ten pounds occasionally. He requires a sit/stand option at intervals of 15 to 30
minutes. He has the ability to walk or stand no more than 2 hours in an eight-hour
workday. He is limited in his ability to push or pull with one lower extremity,
such that any force requiring greater than ten pounds would preclude the activity.
In addition, he has the following non-exertional limitations. He cannot perform
work involving ladders, ropes, or scaffolds, crouching, squatting, or crawling. He
cannot operate foot controls.
He can perform other postural activities
occasionally, which include use of stairs or ramps, balancing, bending, stooping,
or kneeling. He must avoid concentrated exposure to extremes in temperatures,
both hot [and] cold, as well as hazards such as moving machinery and unprotected
heights. Finally, due to a combination of pain and the side effects of medication,
he has limitations in the ability to concentrate, to maintain attention for extended
periods as well as to keep a pace, but would be expected to remain productive
throughout an eight-hour day.

6

R. at 511 (footnote omitted).4 The ALJ considered Plaintiff’s credibility and found that his
“medically[]determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [his] statements concerning the intensity, persistence, and limiting effects
of these symptoms are not credible to the extent they are inconsistent with the [ALJ’s RFC]
assessment.” R. at 517. Further, the ALJ afforded “substantial weight” to the opinions of Drs.
Biddison and Feld. R. at 517-18.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the
region where such individual lives or in several regions of the country.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
4

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a).
7

379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).5
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
5

The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
8

of the claimant’s past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).

The claimant is responsible for providing evidence the

Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.

Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

9

V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).

10

VI
Discussion
A.

The ALJ’s Step Three Determination
Plaintiff contends that the ALJ erred in finding at step three of the sequential evaluation

process that his impairments did not meet or medically equal Listing 1.04 in 20 C.F.R. pt. 404,
subpt. P, app. 1, § 1.04 (R. at 510-11), and failed to address why his condition did not meet or
equal Listing 1.04(A). Pl.’s Mem. Supp. Mot. Summ. J. 8, ECF No. 14-1.
“The Social Security Administration has promulgated regulations containing ‘listings of
physical and mental impairments which, if met, are conclusive on the issue of disability.’ A
claimant is entitled to a conclusive presumption that he is impaired if he can show that his
condition ‘meets or equals the listed impairments.’” Radford, 734 F.3d at 291 (citation omitted);
see 20 C.F.R. pt. 404, subpt. P, app. 1. “In evaluating a claimant’s impairment, an ALJ must
fully analyze whether a claimant’s impairment meets or equals a ‘Listing’ where there is factual
support that a listing could be met.” Huntington v. Apfel, 101 F. Supp. 2d 384, 390 (D. Md.
2000) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). However, “[u]nder Cook,
the duty of identification of relevant listed impairments and comparison of symptoms to Listing
criteria is only triggered if there is ample evidence in the record to support a determination that
the claimant’s impairment meets or equals one of the listed impairments.” Ketcher v. Apfel, 68
F. Supp. 2d 629, 645 (D. Md. 1999). “Neither the Social Security law nor logic commands an
ALJ to discuss all or any of the listed impairments without some significant indication in the
record that the claimant suffers from that impairment.” Id.
Moreover, “[f]or a claimant to show that his impairment matches a listing, it must meet
all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891

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(1990). The claimant bears the burden of demonstrating that his impairment meets or equals a
listed impairment. Kellough v. Heckler, 785 F.2d 1147, 1152 (4th Cir. 1986). “[T]he ALJ is not
required to give controlling weight to a treating physician’s opinion on the ultimate issue of
disability.” Bruette v. Comm’r, Soc. Sec. Admin., Civil No. SAG-12-1972, 2013 WL 2181192, at
*4 (D. Md. May 17, 2013) (citing 20 C.F.R. § 404.1527(d)(2); Social Security Ruling (“SSR”)
96-5p).6
Listing 1.04(A) provides:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by [1] neuro-anatomic
distribution of pain, [2] limitation of motion of the spine, [3] motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by sensory
or reflex loss and, if there is involvement of the lower back, [4] positive straightleg raising test (sitting and supine)[.]
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A). In other words, “motor loss . . . accompanied by
sensory or reflex loss” is one of the four symptoms of nerve root compression under Listing
1.04(A). See Radford, 734 F.3d at 291, 293.
Here, Plaintiff does not point to any evidence of any motor loss accompanied by sensory
or reflex loss before his date last insured of December 31, 2005. Rather, in September 2000, no
motor weakness was detected (R. at 218), and Plaintiff had full motor strength in October 2000
(R. at 217). In May 2001, he demonstrated normal motor strength, and his sensory examination
6

Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
12

was grossly intact. R. at 209. In June 2003, although Plaintiff demonstrated decreased sensation
in his right heel and foot, he had full motor strength in his lower extremities. R. at 166. In June
2004, Plaintiff demonstrated full motor strength in the lower extremities, although some sensory
loss was evident. R. at 150. Accordingly, contrary to Plaintiff’s contention, substantial evidence
demonstrates that his impairments did not meet or equal Listing 1.04(A) before his date last
insured of December 31, 2005. See Ketcher, 68 F. Supp. 2d at 645; see also Howard v. Astrue,
No. PWG-07-2365, 2009 WL 3100246, at *2 (D. Md. Sept. 22, 2009) (“In Subsection A, Listing
1.04 requires [a] ‘limitation of motion of the spine, motor loss, and sensory or reflex loss.’ In
this case, the medical documents of record—including those from Claimant’s treating
physician—indicate that she had good cervical and shoulder range of motion, normal motor
strength and maintained intact sensory function and reflexes. Therefore Claimant’s argument
that she meets Listing 1.04A is without merit.” (citations omitted)).
B.

The ALJ’s RFC Assessment
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to SSR 96-8p.

Pl.’s Mem. Supp. Mot. Summ. J. 9-15, ECF No. 14-1 (citing, inter alia, Fleming v. Barnhart,
284 F. Supp. 2d 256, 272 (D. Md. 2003)). Plaintiff maintains that the ALJ failed to perform
properly a function-by-function assessment of his ability to perform the physical and mental
demands of work. Id. at 11.
Plaintiff’s assertion is without merit. In this case, the ALJ discussed in narrative form the
records and opinions of Plaintiff’s examining sources. R. at 513-17. The ALJ also considered
Plaintiff’s allegations and credibility when determining his RFC. R. at 511-18. Thus, the ALJ’s
function-by-function assessment and narrative discussion were proper. See Brown v. Astrue,
Civil Action No. TMD 09-1358, 2011 WL 3047635, at *2 (D. Md. July 22, 2011); Walter v.

13

Astrue, Civil No. JKS 08-639, 2009 WL 2584817, at *4 (D. Md. Aug. 19, 2009) (concluding that
ALJ’s “function by function” assessment was adequate because ALJ evaluated medical facts and
opinions, as well as claimant’s testimony and credibility, in narrative discussion). Accordingly,
remand is not warranted.
Plaintiff maintains, however, that the ALJ failed to evaluate properly pertinent evidence,
including an October 2003 functional capacity evaluation (“FCE”) (R. at 366-71) and the
opinions of two of his treating physicians that he was unable to work (R. at 198, 200-01, 27273). Pl.’s Mem. Supp. Mot. Summ. J. 11-12, ECF No. 14-1.
While the Commissioner’s decision must contain a statement of the case, in
understandable language, setting forth a discussion of the evidence, and stating
the Commissioner’s determination and the reason or reasons upon which it is
based, there is no rigid requirement that the ALJ specifically refer to every piece
of evidence in his decision[.]
Reid v. Comm’r of Soc. Sec., __ F.3d __, No. 13-1480, 2014 WL 4555249, at *3 (4th Cir. Sept.
16, 2014) (citation omitted) (internal quotation marks omitted). Moreover, the burden is on the
party attacking an agency’s determination to show that prejudice resulted from the error.
Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696, 1705-06 (2009); McLeod v. Astrue,
640 F.3d 881, 887 (9th Cir. 2011) (“Where harmfulness of the error is not apparent from the
circumstances, the party seeking reversal must explain how the error caused harm.”); Ngarurih v.
Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004) (“[R]eversal is not required when the alleged
error ‘clearly had no bearing on the procedure used or the substance of [the] decision reached.’”
(quoting Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84 S. Ct.
1236, 1245 (1964))). Furthermore, “a deficiency in opinion-writing is not a sufficient reason for
setting aside an administrative finding where the deficiency had no practical effect on the
outcome of the case.” Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999); see Fisher v. Bowen,

14

869 F.2d 1055, 1057 (7th Cir. 1989) (Posner, J.) (“No principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe
that the remand might lead to a different result.”). Rather, “[i]f it is predictable with great
confidence that the agency will reinstate its decision on remand because the decision is
overwhelmingly supported by the record though the agency’s original opinion failed to marshal
that support, then remanding is a waste of time.” Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.
2010) (Posner, J.); see Bishop v. Comm’r of Soc. Sec., No. 14-1042, 2014 WL 4347190, at *2
(4th Cir. Sept. 3, 2014) (per curiam).
Here, the opinions of Plaintiff’s treating physicians regarding his inability to work are not
medical opinions, but opinions on an issue reserved to the Commissioner and thus not entitled to
any special significance. See 20 C.F.R. § 404.1527(d); see also Thompson v. Astrue, 442 F.
App’x 804, 808 (4th Cir. 2011) (per curiam) (“Rather than providing a reasoned explanation,
[the treating physician] simply opined in his conclusory fashion that [the claimant] was
‘permanently and totally disabled’ and ‘will never be able to perform substantial gainful work
activity.’ Thus, [the treating physician’s] letter more closely resembled an opinion on a matter
reserved to the Commissioner than a medical opinion.”). Thus, any error by the ALJ in not
discussing these opinions in his decision is harmless.
Plaintiff further contends that, although the ALJ gave “some weight” to the October 2003
FCE (R. at 513-14), the ALJ did not properly evaluate the FCE because it “actually demonstrated
that the Plaintiff did not demonstrate workplace tolerance sufficient for successful placement in
gainful employment.” Pl.’s Mem. Supp. Mot. Summ. J. 11, ECF No. 14-1. Rather, Plaintiff
asserts that the FCE “demonstrated that [he] was incapable of performing substantial gainful
activity eight hours per day, five days per week.” Id. at 12. According to the FCE, however,

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Plaintiff was capable of working an eight-hour workday. R. at 366, 368. In any event, the FCE
was conducted by a physical therapist, who “does not even qualify as an ‘acceptable medical
source’ under the regulations, but rather would qualify only as an ‘other source,’ whose opinions
are entitled to significantly less weight.” Craig, 76 F.3d at 590 (citing 20 C.F.R. §§ 404.1513,
416.913). Even if Plaintiff’s argument regarding the ALJ’s consideration of the FCE were
meritorious, because the ALJ afforded the FCE “some weight” in determining Plaintiff’s RFC to
a reduced range of sedentary work (below the light level of work as determined by the FCE), any
error claimed by the Plaintiff is harmless.
Plaintiff also asserts that the ALJ failed to include in his RFC assessment a requirement
that Plaintiff needed a cane to stand and walk and that the ALJ “failed to explain his apparent
rejection of the evidence supporting the Plaintiff’s need for a hand-held assistive device.” Pl.’s
Mem. Supp. Mot. Summ. J. 12, 14, ECF No. 14-1. According to Plaintiff, “[t]he need for a
hand-held assistive device to stand and walk would thus significantly impact [his] ability to
perform occupations requiring bilateral manual dexterity.” Id. at 13. The VE testified, however,
that the job of order clerk could be performed with one hand (R. at 903), and Plaintiff points to
no evidence of any manipulative limitations during the relevant period (R. at 326, 335, 890). In
any event, “[e]ven assuming that Plaintiff does require a cane, there is no indication that use of a
cane would prevent Plaintiff from performing the minimal standing, walking and carrying
requirements of sedentary work,” which the ALJ found that Plaintiff could perform (R. at 511).
Boyd v. Astrue, C/A No. 4:10-237-CMC-TER, 2011 WL 3652299, at *2 (D.S.C. Aug. 17, 2011)
(citing Grebenick v. Chater, 121 F.3d 1193 (8th Cir. 1997)); see Catterton v. Comm’r, Soc. Sec.
Admin., Civil No. SAG-11-1056, 2013 WL 2470082, at *2 (D. Md. June 6, 2013) (“Given the
RFC for sedentary work, any error in omitting the need for a hand-held assistive device is

16

harmless, because by definition, little standing or walking is required to perform sedentary
jobs.”). Accordingly, Plaintiff’s contention is without merit.
Plaintiff further maintains that the ALJ’s RFC assessment is contradictory, contending
that a 15- to 30-minute sit/stand option is equivalent to standing for four hours in an eight-hour
workday and, therefore, inconsistent with the ability to stand or walk for no more than two hours
in an eight-hour workday. Pl.’s Mem. Supp. Mot. Summ. J. 11, ECF No. 14-1.
“The full range of sedentary work requires that an individual be able to stand and walk
for a total of approximately 2 hours during an 8-hour workday.” SSR 96-9p, 1996 WL 374185,
at *6. An option to stand for four hours, however, “is not a requirement. Granting a sit/stand
option every thirty minutes is not inconsistent with a finding that an individual can perform only
sedentary work.” Parker v. Colvin, Civil No. JKS 11-2170, 2013 WL 4551821, at *5 (D. Md.
Aug. 27, 2013); see Daniels v. Colvin, Civil Action No. TMD-11-00599, 2013 WL 6528913, at
*2 (D. Md. Dec. 11, 2013) (While it is true that a limitation as this might preclude some types of
sedentary work, Plaintiff is incorrect in his assertion that it automatically precludes all types of
sedentary work.” (footnote omitted)); Garner v. Astrue, Civil No. SKG-10-1930, 2011 WL
3758311, at *9 (D. Md. Aug. 23, 2011) (“[T]he mere determination that the claimant requires a
sit-stand option does not require that the ALJ find the claimant disabled. [SSR] 96–9p only
requires that the ALJ consider whether there is work in the economy for the claimant despite her
limitations.”). Plaintiff’s argument in this regard thus is unavailing as well.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards in this case.

Accordingly, Defendant’s Motion for Summary Judgment is

GRANTED, Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s
decision is AFFIRMED.

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VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 23) is
GRANTED.

Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED.

Commissioner’s decision is AFFIRMED. A separate order shall issue.

Date: November 6, 2014

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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The