Handley v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/8/2014. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
GREGORY HANDLEY,

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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 13-991

MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Gregory Handley (“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. 12) and Defendant’s
Motion for Summary Judgment (ECF No. 16).1 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
for Summary Judgment (ECF No. 16) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 12) is DENIED, and the Commissioner’s decision is AFFIRMED.

1

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.

I
Background
Plaintiff was born in 1957, has one year of a college education, and previously worked as
a heavy equipment mechanic. R. at 14, 25-26, 136, 143. Plaintiff applied for DIB on September
5, 2009, alleging disability beginning on March 16, 2000 (later amended to December 31, 2006,
the date last insured), due to a back injury. R. at 9, 12, 110-13, 123. The Commissioner denied
Plaintiff’s application initially and again on reconsideration; consequently, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). R. at 47-54, 61-65. On October 6, 2011,
ALJ C.J. Sturek held a hearing in Washington, D.C., at which Plaintiff and a vocational expert
(“VE”) testified. R. at 20-46. On October 17, 2011, the ALJ issued a decision finding Plaintiff
not disabled since the amended alleged onset date of disability of December 31, 2006. R. at 619. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s
request for review on January 31, 2013. R. at 1-5. The ALJ’s decision thus became the final
decision of the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103,
106-07, 120 S. Ct. 2080, 2083 (2000).
On April 3, 2013, 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.

2

II
Summary of Evidence
A.

State Agency Medical Consultant
On August 4, 2010, S.K. Najar, M.D., a state agency medical consultant, assessed

Plaintiff’s physical residual functional capacity (“RFC”). R. at 472-79. Dr. Najar 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 473. Plaintiff
occasionally could stoop and crawl and frequently could balance, kneel, crouch, and climb ramps
and stairs (but never ladders, ropes, or scaffolds). R. at 474. Plaintiff had no manipulative,
visual, communicative, or environmental limitations, however. R. at 475-76.
B.

Hearing Testimony
1.

Plaintiff’s Testimony

In his decision, the ALJ reviewed Plaintiff’s testimony:
[Plaintiff] testified that he stopped working due [to] his impairments that
resulted from a work (back) injury that occurred in 2006. Treatment has included
a muscle relaxer that eased his pain within an hour, and had no side-effects.
However, he slept only 4-5 hours nightly, as well as about one hour 3-4 times
daily.
He further testified that [he] could neither any longer go fishing after the
2006 injury, nor tie his shoes. He has had to continuously . . . wear back
support(s).
[Plaintiff] alleges that his physical impairments restrict his ability to
function on a daily basis and perform work-related activities. He alleges an
inability to stand, sit, walk, climb, carry objects, and perform other exertional
activities.
....

3

[Plaintiff] testified that his movement up and down stairs has not been a
problem. He has not had balance problems. He stated that he has been able to do
some household chores, including doing light laundry. He has not had a problem
with personal care, such as dressing or bathing.
He has ordinarily watched TV and done some reading in a reclining chair.
He has visited with others and attended church every Sunday. He has walked for
exercise.
R. at 12-13.
2.

VE Testimony

According to the VE, Plaintiff’s past work as a heavy equipment mechanic as he
performed it is skilled and heavy.2 R. at 27. In response to a series of questions regarding a
hypothetical individual with Plaintiff’s same age, education, and work experience who had
various limitations, the VE testified that sedentary jobs available to such a person included order
clerk and document preparer. R. at 42-44. If Plaintiff’s testimony were credible, however, he
could not maintain any work. R. at 43-44.
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 October 17, 2011, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the amended alleged onset date of disability of December 31, 2006; 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.
2

“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).
4

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
11-15. The ALJ accordingly found that he was not disabled as of December 31, 2006. R. at 16.
In so finding, the ALJ found that, as of the date last insured, Plaintiff had the RFC
to perform the full range of sedentary work, as defined in 20 CFR 404.1567(a),
with exertional limitations which included the ability to lift and/or carry 5 pounds
frequently and 10 pounds occasionally, walk/stand/sit (with normal breaks) for 6
hours out of an 8-hour workday, with the added requirement of a sit/stand option
at intervals of approximately ½ hour. He also had the following non-exertional
limitations: no work involving the use of ladders, ropes or scaffolds; no crawling,
and only occasionally using stairs or ramps, balancing, bending, stooping,
kneeling, crouching, or squatting. He needed to avoid concentrated exposure to
hazards (such as moving machinery or unprotected heights). He also had a
moderate mental limitation due to pain, fatigue, and the effects of medication,
affecting the ability to keep up a pace.
R. at 12-13 (footnote omitted).3 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 only somewhat credible, to the extent that they are inconsistent with the
[ALJ’s RFC] assessment.” R. at 13. The ALJ also weighed the opinion evidence in the record,
giving “considerable weight” to Dr. Najar’s opinion. R. at 14.
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.

3

“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).
5

§§ 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
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).4

4

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,
6

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”
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).

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.
7

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).
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.

8

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).
VI
Discussion
A.

ALJ’s RFC Assessment
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security

Ruling5 (“SSR”) 96-8p. Pl.’s Mem. Supp. Mot. Summ. J. 3-7, ECF No. 12-1 (citing, inter alia,
Fleming v. Barnhart, 284 F. Supp. 2d 256, 271-72 (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 5. Plaintiff’s assertion is without merit, as
discussed below.

5

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.
9

Plaintiff first maintains that the ALJ “failed to set forth a narrative discussion describing
how the evidence supported each conclusion, citing specific medical facts and nonmedical
evidence”; thus, the ALJ’s RFC assessment “is a naked conclusion, devoid of analysis.” Id. The
ALJ, however, discussed the medical evidence and Plaintiff’s testimony and statements before
discussing the effect of Plaintiff’s impairments on his RFC. R. at 12-14. The ALJ also noted
that the record did not contain opinions from treating or examining physicians indicating a
greater degree of limitation than determined by the ALJ in the RFC assessment. R. at 14.
Plaintiff also points to no evidence that would support a more restrictive RFC assessment.
Plaintiff’s contention accordingly is without merit.
Plaintiff next contends that a sit/stand option every 30 minutes is inconsistent with the
ALJ’s RFC assessment. Pl.’s Mem. Supp. Mot. Summ. J. 6-7, ECF No. 12-1. “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)). Further, the ALJ elicited testimony
from a VE to determine the extent to which Plaintiff’s limitations, including the need for a
sit/stand option, eroded the unskilled, sedentary occupational base (R. at 15, 42-44). See Walls,
296 F.3d at 291-92. The VE testified as to the availability of sedentary jobs with a sit/stand
option on the basis of her experience, knowledge, and information in the Dictionary of
Occupational Titles. R. at 42-44. The ALJ, therefore, properly relied on the VE’s testimony in

10

finding that Plaintiff could perform work existing in significant numbers in the national
economy.
Plaintiff further maintains that the ALJ failed to include any limitation related to his neck
impairment in the RFC assessment without explanation. Pl.’s Mem. Supp. Mot. Summ. J. 7,
ECF No. 12-1.
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., No. 13-1480, 2014 WL 2958800, at *3 (4th Cir. July 2, 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,
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

11

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).
In this case, Plaintiff fails to allege any limitation resulting from his neck condition that
would affect his ability to work. He did not claim in his application that his neck condition
limited his ability to work (R. at 135), and he did not allege so at the hearing (R. at 24-41).
Further, an ALJ is not obliged to investigate a claim not presented at the time of the benefits
application and not offered at the hearing as a basis for disability. Meyer v. Colvin, 754 F.3d
251, 256-57 (4th Cir. 2014) (citing Halverson v. Astrue, 600 F.3d 922, 934 (8th Cir. 2010)).
Plaintiff’s assertion regarding the ALJ’s failure to address his neck impairment thus is
unavailing.
B.

ALJ’s Credibility Determination
Plaintiff next asserts that the ALJ erroneously evaluated his subjective complaints, citing

SSR 96-7p. Pl.’s Mem. Supp. Mot. Summ. J. 7-12, ECF No. 12-1. Plaintiff first argues that the
ALJ’s finding of severe impairments at step two of the sequential evaluation process contradicts
the ALJ’s credibility determination. Id. at 9-10.
As noted in Part IV above, the Commissioner determines at step two of the five-step
sequential evaluation process whether the claimant has a medically severe impairment or
combination of impairments. “[T]he step-two inquiry is a de minimis screening device to
dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing
Yuckert, 482 U.S. at 153-54, 107 S. Ct. at 2297-98); see Felton-Miller v. Astrue, 459 F. App’x

12

226, 230 (4th Cir. 2011) (per curiam) (“Step two of the sequential evaluation is a threshold
question with a de minimis severity requirement.”). Accordingly, “[t]he findings that the ALJ
must make at steps two and four . . . are quite different.” Taylor v. Astrue, Civil Action No.
BPG-11-0032, 2012 WL 294532, at *8 (D. Md. Jan. 31, 2012). “At step four, on the other hand,
the ALJ must look to all the evidence on record and determine more precisely how, if at all, the
claimant’s impairments limit her ability to work.” Id. “It is possible, therefore, for an ALJ to
find at step two that a claimant’s condition is severe—because the medical evidence does not
conclusively prove otherwise—and yet at step four find no substantial evidence that the
condition actually limits the claimant’s ability to work.” Id.; see Walker v. Colvin, No. C133021-MWB, 2014 WL 1348016, at *7 (N.D. Iowa Apr. 3, 2014) (“A finding of a severe
impairment at Step Two does not require the ALJ to provide related functional limitations at Step
Four.”).
Here, although the ALJ found that Plaintiff’s impairments were severe at step two
because they caused more than a minimal limitation in his ability to perform basic work
activities as of the date last insured (R. at 12), the ALJ determined that Plaintiff had the RFC to
perform a reduced range of sedentary work (R. at 12-13, 15). In doing so, the ALJ found that
Plaintiff’s medically determinable impairments could reasonably be expected to cause his
alleged symptoms, but that his statements concerning the intensity, persistence, and limiting
effects of these symptoms were only somewhat credible (R. at 13), as the ALJ found that
Plaintiff’s testimony regarding his activities of daily living belied significant impairments or
restrictions (R. at 13-14).
When a claimant alleges disability due to pain, the ALJ must apply the Commissioner’s
regulations, which establish a two-step process for evaluating whether a person is disabled by

13

pain and other symptoms. Huntington v. Apfel, 101 F. Supp. 2d 384, 392 (D. Md. 2000) (citing
Craig, 76 F.3d at 594; 20 C.F.R. §§ 404.1529, 416.929). At the first step, the ALJ must
determine that objective evidence shows the existence of a medical impairment that could
reasonably be expected to produce the actual pain in the amount and degree alleged by the
claimant. Id. (citing Craig, 76 F.3d at 594). “At the second step of the Craig inquiry, the ALJ
must evaluate the intensity and persistence of the claimant’s symptoms, including pain, to
determine the extent to which those symptoms limit the claimant’s capacity to work.” Id. (citing
Craig, 76 F.3d at 595; 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1)). At this second stage, the
ALJ must consider all the available evidence, including the claimant’s medical history, medical
signs, statements by the claimant and his treating or examining physicians, objective medical
evidence of pain, and any other information submitted by the claimant, such as the claimant’s
account of what aggravates the pain, medications taken to alleviate the pain, and a summary of
how the pain affects daily living. Id. (citing 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3)).
“The ALJ should consider inconsistencies in the evidence to determine whether a
claimant’s subjective claims of pain can reasonably be accepted.”

Id. (citing 20 C.F.R.

§§ 404.1529(c)(4), 416.929(c)(4)). “Subjective symptoms of pain, standing alone, cannot sustain
a finding of disability, and a claimant must substantiate his allegations of pain.” Id. (citing
Mickles v. Shalala, 29 F.3d 918, 923 (4th Cir. 1994) (Luttig, J., concurring); 20 C.F.R.
§ 404.1529). “The ALJ must make a finding regarding a claimant’s credibility and should refer
specifically to the evidence supporting this finding.” Id. at 392-93 (citing Hammond v. Heckler,
765 F.2d 424, 426 (4th Cir. 1985) (per curiam)); see Gavigan v. Barnhart, 261 F. Supp. 2d 334,
338-39 (D. Md. 2003).

14

In this case, the ALJ noted Plaintiff’s activities included performing household chores,
watching television, reading, visiting others, attending church weekly, and walking for exercise.
R. at 13. A claimant’s daily living activities can provide substantial evidence to discount the
claimant’s credibility. See Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (“[A]cts such
as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.”); Johnson, 434 F.3d at 658 (“The ALJ
also found [the claimant’s] complaints of pain to be inconsistent with her testimony of her
routine activities. [The claimant] testified that she attends church twice a week, reads books,
watches television, cleans the house, washes clothes, visits relatives, feeds the family pets,
cooks, manages her household finances, and performs the stretches recommended by her
chiropractor. [The claimant] also testified that she can lift approximately ten pounds. The ALJ
logically reasoned that the ability to engage in such activities is inconsistent with [the claimant’s]
statements of excruciating pain and her inability to perform such regular movements like
bending, sitting, walking, grasping, or maintaining attention.”); Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986) (per curiam) (upholding a finding of no disability where claimant managed
his household, grocery shopped, cooked, washed dishes, and walked to town every day); Rahe v.
Astrue, 840 F. Supp. 2d 1119, 1136 (N.D. Iowa 2011) (finding that substantial evidence in record
of claimant’s reported activities supported adverse credibility determination of ALJ, who found
that claimant had “reported activities of daily living including preparing meals, completing
household chores, laundry, and shopping, activities which are not limited to the extent one would
expect, given the complaints of disabling symptoms and limitations”); Henry ex rel. Henry v.
Astrue, Civil Action No. TMD-08-686, 2010 WL 3199344, at *5 (D. Md. Aug. 12, 2010) (“The
ALJ reviewed Claimant’s activities of daily living and noted he did some household cleaning,

15

drove, grocery shopped, read, watched television, went outside on his own, and visited family
and friends. The ALJ’s consideration of Claimant’s daily activities was proper based on the
regulations . . . .” (citation omitted)). Accordingly, substantial evidence supports the ALJ’s
determination of Plaintiff’s credibility.
Plaintiff further maintains that the ALJ failed to consider the credibility factors under
SSR 96-7p. Pl.’s Mem. Supp. Mot. Summ. J. 10, ECF No. 12-1. In Ketcher v. Apfel, 68 F.
Supp. 2d 629, 652 (D. Md. 1999), the plaintiff argued that “the ALJ failed to give a legitimate
reason for disregarding the [plaintiff’s] allegations, failed to take into consideration the factors
listed in Social Security Ruling 96–7p, and did not set forth the weight he attributed to the
evidence which influenced his credibility determination.” This Court in Ketcher noted, however,
that SSR 96-7p requires an ALJ to consider “the entire case record, including the objective
medical evidence, the individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or psychologists and other persons
about that symptoms and how they affect the individual, and any other relevant evidence in the
case record.” Ketcher, 68 F. Supp. 2d at 652. This Court in Ketcher ultimately found that the
ALJ in that case considered the entire record and addressed the objective evidence as well as the
plaintiff’s subjective complaints. Id.
Here, before concluding that Plaintiff’s subjective complaints were only somewhat
credible, the ALJ considered Plaintiff’s activities of daily living (R. at 12, 13), the state agency
medical consultant’s opinion (R. at 14), and the evidence of record (R. at 12-14), which the ALJ
noted did not contain opinions from treating or examining physicians indicating a greater degree
of limitation than contained in the ALJ’s RFC assessment (R. at 14). The Court thus finds that

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the ALJ complied with SSR 96-7p. See Ketcher, 68 F. Supp. 2d at 652. Plaintiff’s assertion to
the contrary is without merit.
C.

Plaintiff’s Borderline-Age Category
Plaintiff finally contends that the ALJ did not consider his borderline age of almost 50, as

he was fewer than six months from his 50th birthday, or “closely approaching advanced age,” on
his date last insured (Pl.’s Mem. Supp. Mot. Summ. J. 12-14, ECF No. 12-1). See 20 C.F.R.
§ 404.1563(d). The ALJ found that Plaintiff had a college-level education and was able to
communicate in English. R. at 14. The VE further testified that Plaintiff’s skills were not
transferable. R. at 27. Although the ALJ found that Plaintiff was a 49-year-old “younger
individual” on his date last insured, the ALJ also found that, if Plaintiff had the RFC to perform
the full range of sedentary work, a finding of “not disabled” would be directed by the MedicalVocational Guidelines (the “grids”) under grid rule 201.16 (R. at 14-15). See 20 C.F.R. pt. 404,
subpt. P, app. 2, § 201.16. Grid rule 201.16 applies to individuals who are high-school graduates
closely approaching advanced age with no transferable skills but whose education provides for
direct entry into skilled work. The ALJ found, however, that additional limitations impeded
Plaintiff’s ability to perform all or substantially all of the requirements of this level of work, and
so the ALJ elicited testimony from a VE. R. at 15, 42-44. Plaintiff contends that he should have
been found conclusively disabled under grid rule 201.14, which applies to a 50-year-old highschool graduate with no transferable skills and whose education does not provide for direct entry
into skilled work. 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.14.
The date of an individual’s lapse of insured status is considered when determining
eligibility for DIB.

Ross v. Astrue, 636 F. Supp. 2d 127, 134 (D.D.C. 2009); 20 C.F.R.

§ 404.131. Moreover,

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[the Commissioner] will not apply the age categories mechanically in a borderline
situation. If [the claimant is] within a few days to a few months of reaching an
older age category, and using the older age category would result in a
determination or decision that [the claimant is] disabled, [the Commissioner] will
consider whether to use the older age category after evaluating the overall impact
of all the factors of [the claimant’s] case.
20 C.F.R. § 404.1563(b); see Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983). The
borderline range falls somewhere around six months from the older age category. Pickard v.
Comm’r of Soc. Sec., 224 F. Supp. 2d 1161, 1168 (W.D. Tenn. 2002) (citing, inter alia, France
v. Apfel, 87 F. Supp. 2d 484, 491-92 (D. Md. 2000)).
Here, in evaluating Plaintiff under the grids before continuing the sequential evaluation
process, the ALJ did not use his chronological age on his date last insured and mechanically
apply the grids’ age categories. Cf. France, 87 F. Supp. 2d at 491 (in borderline-age situation,
ALJ erroneously evaluated Plaintiff by using her chronological age that fell under younger age
category in grids). Rather, the ALJ found that, if Plaintiff had the RFC to perform the full range
of sedentary work, he would not be disabled under a grid rule applicable to individuals closely
approaching advanced age. Plaintiff has neither argued that the ALJ erred in determining his
education as a vocational factor for purposes of the grids nor maintained that the ALJ’s
hypothetical questions to the VE mischaracterized his age.

Further, as noted by the ALJ,

Plaintiff’s counsel did not examine the VE at the hearing, although he had the opportunity to do
so. R. at 15, 44. Plaintiff’s contention that the ALJ did not consider his borderline age thus is
unavailing.
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. 16) is
GRANTED.

Plaintiff’s Motion for Summary Judgment (ECF No. 12) is DENIED. The

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

Date: September 8, 2014

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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