McKenzie v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 8/12/2014. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil No. TMD 13-1026
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
John McKenzie (“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. 18) and Defendant’s
Motion for Summary Judgment (ECF No. 20).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. 20) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 18) is DENIED, and the Commissioner’s decision is AFFIRMED.
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.
Plaintiff was born in 1961, has a high-school education, and previously worked as an
electrician. R. at 26-27. Plaintiff applied for DIB on October 19, 2009, alleging disability
beginning on July 1, 2005 (later amended to October 19, 2009), due to “left arm, shoulder
problems, neck injury.” R. at 11, 128-31, 139-40, 145. The Commissioner denied Plaintiff’s
application initially and again on reconsideration; consequently, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”). R. at 83-88, 92-96. On September 12, 2011, ALJ
Larry Banks held a hearing in Washington, D.C., at which Plaintiff and a vocational expert
(“VE”) testified. R. at 22-48. On November 22, 2011, the ALJ issued a decision finding
Plaintiff not disabled from the amended alleged onset date of disability of October 19, 2009,
through the date last insured (“DLI”) of December 31, 2010. R. at 8-21. Plaintiff sought review
of this decision by the Appeals Council, which denied Plaintiff’s request for review on February
4, 2013. R. at 1-3, 7. 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
On April 6, 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
Summary of Evidence
Bruce Neckritz, D.O.
On April 16, 2010, Dr. Neckritz conducted a consultative musculoskeletal examination of
Plaintiff, noting his complaints of “left arm problems, shoulder problems and a neck injury.” R.
at 314. Dr. Neckritz further noted:
[Plaintiff] had worked for most of his life as an Electrician, almost twenty
five years. . . . At the end of 2003 he suffered an injury while at work. There was
a ladder against a house approximately 30 feet extended. A gust of wind caught
the ladder and blew it backwards. He tried to stabilize the ladder to prevent it
from crashing into a window. As a result of this his left arm was severely injured
at the shoulder. . . .
He had to stop working on July 3, 2005 as the pain was becoming too
severe. Thus it has been five years since he has been out of work.
[Plaintiff] describes pain on a daily basis, level seven to eight out of ten.
He actually has two types of pain that he experiences. The first type is where his
left arm actually feels that it is burning and his hand is on fire. The second type
of pain begins in the posterior scapula region and comes through his chest area
almost feeling like a knife going through his back. If he tries to extend his neck,
looking up . . . will set off the scapula pain. Recently he has been experiencing
burning sensation in the left four and fifth fingers and also occasional numbness
in the left thumb.
He normally is left hand dominant but with his left arm problems he has
now begun to use his right hand for more functional activities.
R. at 314-15. “He is able to perform his own activities of daily living but uses his right arm more
frequently now due to the left upper extremity discomfort. He has developed a tremor in his left
arm additionally.” R. at 315. “Strength and sensation are normal in the right upper and lower
bilateral extremities.” R. at 315. “The left upper extremity is limited secondary to pain. He has
a significant restriction in internal rotation at the left shoulder. Flexion and abduction are also
limited at the left shoulder.” R. at 316. Dr. Neckritz noted “no muscle atrophy in the left upper
extremity” and that Plaintiff’s “[l]eft elbow and hand range of motion are normal.” R. at 316.
Dr. Neckritz opined that Plaintiff’s “ongoing pain and chronic pain problems make it
difficult to work in a competitive environment.” R. at 316. “He has taken himself off of narcotic
medicines as they were no longer effective for him.
He has been through different pain
medications but nothing seems to give him any long lasting relief.” R. at 316.
State Agency Medical Consultants
On May 14, 2010, W. Hakkarinen, M.D., assessed Plaintiff’s physical residual functional
capacity (“RFC”). R. at 318-25. Dr. Hakkarinen 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 319. He could never climb ladders, ropes, or
scaffolds, but he could frequently balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs. R. at 320. Plaintiff’s manipulative limitations with his left upper extremity included
limited reaching in all directions, handling, and fingering because of his previous injuries with
continued decreased range of motion and grip strength. R. at 321. Plaintiff had no visual,
communicative, or environmental limitations, however. R. at 321-22.
On August 12, 2010, another state agency medical consultant, M. Feld, M.D., also
assessed Plaintiff’s physical RFC. R. at 340-47. Dr. Feld expressed the same opinion regarding
Plaintiff’s exertional limitations, but opined that Plaintiff did not have any postural,
manipulative, visual, communicative, or environmental limitations because of Plaintiff’s ability
to do yard work and cut grass. R. at 341-45.
In his decision, the ALJ reviewed Plaintiff’s testimony as follows:
[Plaintiff] testified to having a long history of cervical spine and shoulder
problems. He mentioned having a discectomy and fusion on his cervical spine in
1996 but returned to work shortly thereafter. Then in 2003, he suffered a workrelated injury where an extension ladder collapsed causing him to hurt his left
shoulder and re-injure his neck. [Plaintiff] underwent a repair of his torn left
rotator cuff on March 3, 2004 and was able to continue working at a lighter than
normal capacity until 2005. He ended his 25-year career as an electrician as he
testified that the pain became too much for him in 2005. On December 10, 2008,
[Plaintiff] underwent an arthroscopic repair of his left shoulder and attended
physical therapy until August 2009 in order to strengthen his shoulder.
R. at 15 (citation omitted).
In terms of [Plaintiff’s] alleged chronic pain, [Plaintiff] testified that he no longer
takes prescription pain medications and that he stopped prior to losing his
workers’ compensation benefits. He further explained that he took over-thecounter medication sparingly because they tended to upset his stomach. Also, he
stated he still did household chores like mowing his grass, working in the garden,
laundry, and light cleaning. Moreover, while he explained that he had a friend
drive him to the hearing because it was in the city and he did not like driving with
his neck problems, in a lot of traffic, he did state that he still drove around his
home on a consistent basis.
R. at 16 (citation omitted); see R. at 26-43. At the hearing, Plaintiff demonstrated a tremor with
his left, dominant hand that, according to him, shakes “[p]retty much all the time.” R. at 32-33.
He further testified that he could not feel with his left hand. R. at 37.
The VE classified Plaintiff’s past work as skilled and medium.2 A hypothetical person
with Plaintiff’s same age, education, and work experience who could perform at most light work3
could not perform Plaintiff’s past work if, according to the ALJ, that person
“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
should do no climbing of ropes, ladders or scaffolds, can perform stooping but
only on an occasional basis, should also avoid work around dangerous machinery
or unprotected heights. Should also avoid above shoulder lifting or constant
reaching, you know, with the left dominant upper extremity. Should also avoid
constant fine and gross manipulation with the left upper extremity. I’m also going
to include minor difficulties in concentration, persistence and pace due to possible
side effects of any meds and also due to bouts of pain which would limit the
person to performing only unskilled tasks.
R. at 44-45. Such an individual could perform light, unskilled jobs such as a routing clerk or
general office helper, however.
R. at 45.
A limitation with reaching with the left upper
extremity “would not preclude one’s ability to successfully perform.” R. at 45-46. A reduction
of productivity of 15% or greater due to “someone’s complaints of pain, missing time, reaction,
unscheduled breaks” would not constitute substantial gainful activity. R. at 46.
The Court reviews other portions of the record more fully in its discussion of Plaintiff’s
arguments below. See infra Part VI.
Summary of ALJ’s Decision
On November 22, 2011, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the amended alleged onset date of disability of October 19, 2009; 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
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “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.” Id.
perform other work in the national economy, such as a routing clerk or general office helper. R.
at 13-18. The ALJ accordingly found that he was not disabled from October 19, 2009, through
the DLI of December 31, 2010. R. at 18.4
In so finding, the ALJ found that, through the DLI, Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except no climbing of
ropes, ladders or scaffolds; perform stooping on an occasional basis; avoid work
around dangerous machinery or unprotected heights; avoid above the shoulder
lifting or constant reaching with the left dominant upper extremity; avoid constant
fine and gross manipulation with the left upper extremity; and having moderate
difficulties in concentration, persistence or pace due to pain and possible sideeffects of medication resulting in being limited to performing unskilled tasks.
R. at 14. Regarding Plaintiff’s credibility, the ALJ 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 15.
The ALJ also considered the opinion evidence, declining to adopt Dr. Neckritz’s opinion
after considering the entire record as a whole. R. at 16. The ALJ noted:
Dr. Neckritz only saw [Plaintiff] at this one instance and seemed to reiterate
mainly [Plaintiff’s] subjective complaints. He did not take into account that
[Plaintiff] was not taking prescription pain medication and failed to explain or
quantify how the pain would limit his ability to work. Also, the undersigned
notes that this is an opinion on an issue reserved to the Commissioner. For these
reasons, Dr. Neckritz’s opinion regarding disability is given little weight.
R. at 16 (citations omitted). As discussed more fully below, the ALJ further considered the state
agency medical consultants’ opinions, finding that they “also support a finding of ‘not disabled’”
and noting that “[f]indings of fact made by a State agency medical professional regarding the
Although recognizing throughout the rest of the ALJ’s decision Plaintiff’s amended alleged
onset date of disability of October 19, 2009, the ALJ erroneously states on page 18 of the
administrative transcript the alleged onset date of disability as July 1, 2005. R. at 18.
nature and severity of an individual’s impairments must be treated as expert opinion evidence by
a non-examining source.” R. at 16, 17.
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.”
§§ 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.
§§ 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”
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.
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.
§§ 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.”
§§ 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),
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
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).
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).
Plaintiff maintains that the ALJ erroneously assessed his RFC. Pl.’s Mem. Supp. Mot.
Summ. J. 4-9, ECF No. 18-1. He further contends that the ALJ failed to develop properly the
administrative record. Id. at 10-12.
ALJ’s RFC Assessment
Plaintiff first contends that the ALJ erroneously assessed his RFC contrary to Social
Security Ruling6 (“SSR”) 96-8p. Pl.’s Mem. Supp. Summ. J. 4-6, ECF No. 18-1 (citing, inter
alia, Fleming v. Barnhart, 284 F. Supp. 2d 256, 271-72 (D. Md. 2003)). In particular, he
maintains that the ALJ “failed to set forth a narrative discussion setting forth how the evidence
supported each conclusion, citing specific medical facts and nonmedical evidence.” Id. at 7.
First, Plaintiff maintains that the ALJ erred in relying on the state agency medical consultants’
opinions, which he mischaracterized. Id. at 7-8. Second, he asserts that the ALJ failed to explain
his RFC assessment. Id. at 8. Third, according to Plaintiff, the ALJ erroneously disregarded the
opinion of Dr. Neckritz, the consultative examiner who examined Plaintiff on April 16, 2010 (R.
at 16, 312-17). Id. at 8-9. Fourth, Plaintiff contends that the ALJ failed to address his tremor in
his left upper extremity or his lack of feeling in his left hand that was mentioned at the hearing.
Id. at 9. Thus, according to Plaintiff, the ALJ’s RFC assessment “fails to be supported by
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
substantial evidence” and “defies review.” Id. As discussed further below, Plaintiff’s arguments
“In making an RFC finding, the ALJ is under an obligation to ‘include a narrative
discussion describing how the evidence supports each conclusion, citing specific medical facts
and non-medical evidence.’” Lehman v. Astrue, 931 F. Supp. 2d 682, 695 (D. Md. 2013)
(alteration in original) (quoting SSR 96-8p). “While the precise medical evidence relied on for
every specific limitation need not be discussed directly in the actual RFC finding, the Court must
not be required to speculate as to the bases for the findings.” Vandervort v. Astrue, Civil Action
No. TMD 10-02671, 2013 WL 508987, at *2 (D. Md. Feb. 11, 2013).
Plaintiff maintains that substantial evidence does not support the ALJ’s RFC assessment
because the ALJ mischaracterized the state agency medical consultants’ opinions. The ALJ
stated in his decision that Dr. Hakkarinen
determined that from an exertional standpoint, [Plaintiff] is able to lift twenty
pounds occasionally and ten pounds frequently, stand and walk for a total of six
hours, and sit for about six hours in an eight hour day. The doctor further noted
that [Plaintiff’s] ability to push and pull is unrestricted. With regard to postural
limitations, Dr. Hakkarinen found that [Plaintiff] could frequently balance and
stoop and could occasionally climb, kneel, crouch, and crawl but never climb
ladders, ropes or scaffolds. Furthermore, the State agency consultant found no
manipulative, visual, communicative or environmental limitations.
Hakkarinen’s opinion was subsequently affirmed as written by State agency
consultant M. Feld, MD. The undersigned concurs with the State agency
medical consultants’ opinions that [Plaintiff] is not disabled.
R. at 16-17 (emphasis added) (citations omitted).
As Plaintiff points out, Dr. Hakkarinen
actually opined that Plaintiff could never climb ladders, ropes, or scaffolds, but he could
frequently balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. R. at 320. Dr.
Hakkarinen also in fact found that Plaintiff’s manipulative limitations included limited reaching,
handling, and fingering. R. at 321. Furthermore, Dr. Feld did not affirm Dr. Hakkarinen’s
opinion, but, in finding that Plaintiff had no postural or manipulative limitations, proffered a less
restrictive assessment than those given by either Dr. Hakkarinen or the ALJ. R. at 342-43.
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))). In assessing Plaintiff’s RFC, the ALJ found that he was
capable of performing light work with certain limitations. His postural limitations limited him to
occasional stooping and to no climbing of ropes, ladders, or scaffolds. R at 14. Plaintiff’s
manipulative limitations were to avoid lifting above the shoulder and constant reaching and fine
and gross manipulation with the left upper extremity. R. at 14. Plaintiff’s environmental
limitation was avoiding dangerous machinery and unprotected heights. R. at 14. The ALJ also
found that Plaintiff experienced moderate difficulties in concentration, persistence, or pace that
limited him to unskilled work. R. at 14. The ALJ posed these limitations at the hearing to the
VE, who testified that they did not preclude someone of Plaintiff’s age, education, and work
experience from performing light, unskilled work such as a routing clerk or general officer
helper. R. at 44-45.
The ALJ’s error is, therefore, harmless. “[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.”). Because
Plaintiff does not demonstrate prejudice as a result of the ALJ’s error, Plaintiff’s contention is
Plaintiff further asserts that the ALJ erred in not addressing Dr. Hakkarinen’s opinion
regarding Plaintiff’s capacity to balance, stoop, kneel, crouch, crawl, and climb ramps and stairs
frequently. Pl.’s Mem. Supp. Mot. Summ. J. 7, ECF No. 18-1. According to Defendant,
however, “the other postural limitations generally do not impact light work,” and “the specific
occupations relevant to this case do not require an individual to engage in those other postural
activities.” Def.’s Mem. Supp. Mot. Summ. J. 11, ECF No. 20-1. As the Commissioner points
out, id. at 12-13, the jobs of router and general office helper do not require stair climbing,
balancing, kneeling, crawling, or crouching, according to the Dictionary of Occupational Titles.7
Further, the ALJ’s assessment of only occasional stooping by Plaintiff does not preclude
performing the jobs identified by the VE. Thus, even if the ALJ had included in his RFC
assessment the postural limitations as opined by Dr. Hakkarinen, “there is no indication that the
ALJ would have reached a different conclusion regarding the availability of jobs in the national
and regional economies.” Farnsworth v. Astrue, 604 F. Supp. 2d 828, 837 (N.D.W. Va. 2009);
see Coles v. Astrue, Civil No. JKS 08-321, 2009 WL 3380334, at *3 (D. Md. Oct. 16, 2009)
“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see DeLoatche v. Heckler, 715 F.2d 148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 404.1566(d)(1).
“Information contained in the [Dictionary of Occupational Titles] is not conclusive evidence of
the existence of jobs in the national economy; however, it can be used to establish a rebuttable
presumption.” English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
(“[E]ven if the ALJ had adopted [the state agency consultant’s] non-exertional limitations, [the
claimant] would still be capable of light work and the RFC would be unchanged. See Soc. Sec.
Ruling 83-14 at *4-5 (certain non-exertional limitations, including but not limited to the
‘inability to ascend or descend scaffolding, poles, and ropes’ do not significantly affect the
ability to perform work).”); SSR 85-15, 1985 WL 56857, at *6-7 (“Where a person has some
limitation in climbing and balancing and it is the only limitation, it would not ordinarily have a
significant impact on the broad world of work. . . . If a person can stoop occasionally (from very
little up to one-third of the time) in order to lift objects, the sedentary and light occupational base
is virtually intact. . . . [L]imitations on the ability to crawl would be of little significance in the
broad world of work. This is also true of kneeling (bending the legs at the knees to come to rest
on one or both knees).”); SSR 83-14, 1983 WL 31254, at *2 (“Relatively few jobs in the national
economy require ascending or descending ladders and scaffolding. . . . [T]o perform substantially
all of the exertional requirements of most sedentary and light jobs, a person would not need to
crouch and would need to stoop only occasionally (from very little up to one-third of the time,
depending on the particular job).”). Accordingly, Plaintiff again fails to demonstrate prejudice
from the ALJ’s claimed error.
Plaintiff also contends that the ALJ erred in determining his manipulative limitations and
in failing to explain how these limitations were not more restricted. Pl.’s Mem. Supp. Mot.
Summ. J. 8, ECF No. 18-1. As noted above, Dr. Hakkarinen’s opinion regarding Plaintiff’s
limited overhead reaching, fingering, and handling (R. at 321) was expressed by the ALJ in his
RFC assessment and in his hypothetical questions to the VE at the hearing (R. at 44-45) as a
limitation in avoiding above-shoulder lifting and constant reaching and fine and gross
manipulation with the left upper extremity. R. at 14, 44-45. Again, Plaintiff fails to demonstrate
prejudice from the ALJ’s error in restating Dr. Hakkarinen’s opinion in his decision.
Plaintiff’s contention that the ALJ “failed to identify the evidence upon which he relied to
support [his RFC] determination” regarding Plaintiff’s manipulative limitations (Pl.’s Mem.
Supp. Mot. Summ. J. 8, ECF No. 18-1) also is without merit, as the ALJ noted in the decision
Plaintiff’s treatment notes regarding his shoulder and neck pain (R. at 15-16, 326-29, 331, 33637). After reviewing the record, the Court concurs with the Commissioner that substantial
evidence “supports the ALJ’s finding that [Plaintiff] had some limitation in his ability to reach
and manipulate, but does not necessitate a finding of greater limitation.” Def.’s Mem. Supp.
Mot. Summ. J. 15, ECF No. 20-1.
Plaintiff next maintains that the ALJ failed to address either his tremor in his left upper
extremity or his lack of feeling in his left hand. Pl.’s Mem. Supp. Mot. Summ. J. 9, ECF No. 181 (citing R. at 32, 27). Plaintiff again fails to demonstrate prejudice from the claimed error.
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). In any event, Plaintiff’s treatment notes
and activities of daily living belie functional limitations beyond those already considered by the
ALJ. R. at 42-43 (yard work), 326 (noting “some chronic low-grade numbness in his left hand,
but no other significant fixed neurologic deficits”), 327 (although Plaintiff complained of “some
problems with dexterity,” examination revealed that hand dexterity was “well maintained”). “If
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 Bautista v. Astrue, Civil No. TJS-11-1651, 2013
WL 664999, at *6 (D. Md. Feb. 22, 2013).
Plaintiff also asserts that the ALJ erred in disregarding the opinion of Dr. Neckritz as
being based on a one-time examination and Plaintiff’s subjective complaints. Pl.’s Mem. Supp.
Mot. Summ. J. 8-9, ECF No. 18-1. “An ALJ’s determination as to the weight to be assigned to a
medical opinion will generally not be disturbed absent some indication that the ALJ has dredged
up ‘specious inconsistencies,’ or has not given good reason for the weight afforded a particular
opinion.” Craft v. Apfel, No. 97-2551, 1998 WL 702296, at *2 (4th Cir. Oct. 6, 1998) (per
curiam) (citation omitted). In this regard, “a treating physician’s opinion is to be accorded
comparatively less weight if it is based on the physician’s limited knowledge of the applicant’s
condition or conflicts with the weight of the evidence.” Meyer v. Colvin, 754 F.3d 251, 256 (4th
Cir. 2014) (citing Craig, 76 F.3d at 590; 20 C.F.R. § 404.1527(c)).
Here, the ALJ appropriately found that Dr. Neckritz’s opinion that Plaintiff’s “ongoing
pain and chronic pain problems make it difficult to work in a competitive environment” (R. at
316) was not a medical opinion, but an opinion 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.”). Further, the ALJ reasonably
found that Dr. Neckritz’s opinion regarding Plaintiff’s difficulty in working in a competitive
environment “seemed to reiterate mainly [Plaintiff’s] subjective complaints” and “failed to
explain or quantify how the pain would limit his ability to work” (R. at 16). See Craig, 76 F.3d
at 590 (noting that conclusory medical opinion based on claimant’s subjective reports and
unsupported by opining physician’s own notes was unpersuasive).
Moreover, contrary to
Plaintiff’s assertion, the ALJ did not err in assigning greater weight to the opinions of the state
agency medical consultants than to Dr. Neckritz’s opinion, as “the testimony of a non-examining
physician can be relied upon when it is consistent with the record. Furthermore, if the medical
expert testimony from examining or treating physicians goes both ways, a determination coming
down on the side of the non-examining, non-treating physician should stand.” Smith, 795 F.2d at
346 (citation omitted); see Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.
1999) (“Opinions of a nonexamining, testifying medical advisor may serve as substantial
evidence when they are supported by other evidence in the record and are consistent with it.”).
Finally, the ALJ reasonably discounted the opinion of Dr. Neckritz as a one-time consultative
examiner. See Russell v. Barnhart, 58 F. App’x 25, 29 (4th Cir. 2003) (per curiam) (“The
ALJ . . . was justified in rejecting the opinion of Dr. Riaz that [the claimant] was totally disabled.
Dr. Riaz conducted a one-time consultative examination and, as the ALJ observed, his findings
of total disability are inconsistent with the remaining evidence of record, particularly that
evidence from [a treating psychiatrist and two treating psychologists].”).
As noted previously, the Court’s function is neither to review Plaintiff’s claims de novo
nor to reweigh the evidence of record.
The Court instead must determine whether, upon
reviewing the whole record, the Commissioner’s decision is supported by substantial evidence
and a proper application of the law. Under that standard and in light of the evidence cited by the
ALJ, the Court finds no reversible error in the ALJ’s RFC assessment.
ALJ’s Duty to Develop Record
Plaintiff also maintains that, by failing to order a consultative examination, the ALJ did
not fulfill his duty to develop the record. Pl.’s Mem. Supp. Mot. Summ. J. 10-12, ECF No. 18-1.
According to Plaintiff, because of an evidentiary gap after July 2010, a consultative examination
was necessary to determine the severity of his neck and shoulder condition. Id. at 12.
Although an ALJ has a duty to develop adequately the record on all relevant facts and
issues before making a final decision, Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986), the
standard for ordering consultative examinations is when “the evidence as a whole is insufficient
to allow [the Commissioner] to make a determination or decision on [the] claim” or when there
is an inconsistency in the evidence. 20 C.F.R. § 404.1519a(b). In other words, the need for a
consultative examination arises if, for example, “[t]he additional evidence needed is not
contained in the records of [the claimant’s] medical sources”; “[t]he evidence that may have been
available from [the claimant’s] treating or other medical sources cannot be obtained for reasons
beyond [the claimant’s] control, such as death or noncooperation of a medical source”; “[h]ighly
technical or specialized medical evidence that [the Commissioner needs] is not available from
[the claimant’s] treating or other medical sources”; or “[t]here is an indication of a change in [the
claimant’s] condition that is likely to affect [the claimant’s] ability to work, but the current
severity of [the claimant’s] impairment is not established.” Id. § 404.1519a(b)(1)-(4).8
At the time of the Commissioner’s final decision on November 22, 2011, the applicable
A consultative examination may be purchased when the evidence as a whole, both
medical and nonmedical, is not sufficient to support a decision on your claim.
A consultative examination was not warranted in this case because, as the Commissioner
points out, Plaintiff “makes no argument that his impairments [had] worsened, or that during the
evidentiary gap, new impairments [had] arisen” between July 2010 and his DLI of December 31,
2010. Sheppard v. Comm’r, Soc. Sec. Admin., Civil No. SAG-13-1239, 2014 WL 2154169, at *3
(D. Md. May 20, 2014) (citing Poyck v. Astrue, 414 F. App’x 859, 861 (7th Cir. 2011)); see
Hawkins v. Chater, 113 F.3d 1162, 1167-68 (10th Cir. 1997) (“[I]n a counseled case, the ALJ
may ordinarily require counsel to identify the issue or issues requiring further development. In
the absence of such a request by counsel, we will not impose a duty on the ALJ to order a
consultative examination unless the need for one is clearly established in the record.” (citation
omitted)). Accordingly, Plaintiff’s contention in this regard is without merit.
Other situations, including but not limited to the situations listed below, will
normally require a consultative examination:
(1) The additional evidence needed is not contained in the records of your medical
(2) The evidence that may have been available from your treating or other
medical sources cannot be obtained for reasons beyond your control, such as
death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is not available
from your treating or other medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency in the evidence must be
resolved, and we are unable to do so by recontacting your medical source; or
(5) There is an indication of a change in your condition that is likely to affect your
ability to work, but the current severity of your impairment is not established.
20 C.F.R. § 404.1519a(b) (2011); see Bryant ex rel. Bryant v. Barnhart, 63 F. App’x 90, 92 n.1
(4th Cir. 2003) (“[U]nder the applicable regulations, a claimant’s case should be reviewed under
the rules in effect at the time of the final administrative decision.”).
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.
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 20) is
Plaintiff’s Motion for Summary Judgment (ECF No. 18) is DENIED.
Commissioner’s decision is AFFIRMED. A separate order shall issue.
Date: August 12, 2014
Thomas M. DiGirolamo
United States Magistrate Judge
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