Wilkerson v. Colvin

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 5/14/2014. (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MICHAEL WILKERSON,

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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 13-1723

MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Michael Wilkerson (“Plaintiff”) seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his application for Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment
(ECF No. 10) and Defendant’s Motion for Summary Judgment (ECF No. 12).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. 12) is GRANTED,
Plaintiff’s Motion for Summary Judgment (ECF No. 10) 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 1987, has a GED, and previously worked as a seasonal worker,
cleaner, store stocker, and security guard. R. at 18, 60, 66. On May 18, 2010, Plaintiff applied
for SSI, alleging disability beginning on September 9, 1987 (later amended to September 6,
2009), due to back injury and depression. R. at 13, 59, 164-70, 189. The Commissioner denied
Plaintiff’s application initially and again on reconsideration; consequently, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). R. at 171-75, 178-82. On May 14, 2012,
ALJ Eugene M. Bond held a hearing in Washington, D.C., at which Plaintiff and a vocational
expert (“VE”) testified. R. at 186-99. On June 14, 2012, the ALJ issued a decision finding
Plaintiff not disabled since the alleged onset date of disability of September 6, 2009. R. at 10-20.
Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s request
for review on April 12, 2013. R. at 5-9, 185. The ALJ’s decision thus became the final decision
of the Commissioner. See 20 C.F.R. § 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07,
120 S. Ct. 2080, 2083 (2000).
On June 14, 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
The ALJ noted in his decision that Plaintiff had fallen from a three-story building and had
broken his back on September 6, 2009, “sustaining an L1 compression fracture to both anterior
and posterior elements.” R. at 15. While hospitalized, Plaintiff “underwent a T11 through L3
fusion with laminectomies on September 9, 2009.”

R. at 15.

“Following the procedure,

[Plaintiff] underwent physical therapy and occupational therapy which were prescribed.” R. at
15. “On September 13, 2009, [Plaintiff] was doing well and ambulating to the bathroom. He
had 5/5 strength in his legs bilaterally.” R. at 15; see R. at 116-29.
On June 16, 2010, Plaintiff reported that “he no longer has symptoms in his lower
extremities” and “stated that his spine does not cause him any significant pain, and he is doing
well following his surgery.” R. at 16; see R. at 132.
A.

State Agency Medical Consultants
On August 10, 2010, S. Rudin, M.D., assessed Plaintiff’s physical residual functional

capacity (“RFC”). R. at 136-43. Dr. Rudin opined that Plaintiff could (1) lift and/or carry
twenty pounds occasionally and ten 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 with the upper and lower extremities. R. at 137.
He could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but
never ladders, ropes, or scaffolds). R. at 138. Further, Plaintiff had no manipulative, visual,
communicative, or environmental limitations. R. at 139-40.

3

On February 3, 2011, T. Spurgeon, M.D., found insufficient evidence of a mental
impairment. R. at 145-58. Dr. Spurgeon noted the lack of a current mental status examination
and that Plaintiff was not cooperating with efforts to contact him. R. at 157.
B.

James M. Weiss, M.D.
On March 23, 2011, Dr. Weiss, an orthopedic surgeon, noted the following:
[Plaintiff] has residual neurologic symptoms and chronic back pain. The
likelihood is he has a nonunion because of his smoking. He certainly is disabled
from the heavy type of labor that he does and should try to seek disability for this.
He would have to have vocation retraining to do some type of sedentary
work. . . . Stopping smoking would be . . . another . . . thing he could do to try to
improve his chances of having the possibility of having some overall
improvement.

R. at 162.
Almost a year later, on March 16, 2012, Dr. Weiss reiterated his opinion that Plaintiff
is disabled from the heavy type of labor that he had done prior to his injury and
this would be the case for the foreseeable future as he likely has a nonunion in his
lumbar spine and ultimately if he were to stop smoking, likely would need to
undergo revision surgery.
R. at 160. Sedentary work would be limited, “as he can only sit for about an hour and he does
not have the education to perform administrative type tasks.” R. at 161.
C.

Hearing Testimony
1.

Plaintiff’s Testimony

In his decision, the ALJ reviewed Plaintiff’s testimony as follows:
At the hearing, [Plaintiff] testified that he received a GED, and can read, write,
and do simple math such as adding and subtracting. He testified that he worked
for the Dept. of Highway Transportation in the past and also as a security guard
(unarmed) at a fairground. He stated that he could not remember where he
worked in his last job.
[Plaintiff] testified that he does not drive an automobile and has never had a
driver’s license. He stated that he does his own cooking, but that his mother does
the cleaning and the grocery shopping. On a typical day, [Plaintiff] testified that
4

he gets up in the morning, takes a shower, eats a quick breakfast, watches a little
TV, and walks around a little to exercise his legs. After eating lunch, [Plaintiff]
indicated that he watches a little more TV. Following dinner, [Plaintiff] stated
that he goes to bed. He testified that he does not participate in any outside
activities.
[Plaintiff] testified that he was at a party drinking when he fell off the 3rd floor
balcony of his friend’s house on his back. He stated that he has had surgery on
his back, but Dr. Weiss has indicated [Plaintiff] is to have additional surgery
which has not yet been scheduled. [Plaintiff] also stated that he has no insurance.
[Plaintiff] testified that he stopped taking pain medication after leaving the
hospital since he does not want to become addicted. He also stated that the last
time he had alcohol was 2 weeks ago. He stated that he had 2-3 beers, Coors
light.
[Plaintiff] testified that he has problems sitting due to the pain and also has
problems lying in bed. He stated that he did not get to sleep until 3:00 a.m. the
other night.
R. at 17; see R. at 189-94.
2.

VE Testimony

The VE testified that a hypothetical person with Plaintiff’s same age, education, and
work experience having the capacity to do unskilled, sedentary work2 with “a sit/stand option at
will, limited dominant hand usage, and limited general public contact” could perform jobs such
as a surveillance monitor, document preparer, and ink printer.

R. at 195-96.

This same

hypothetical person with the capacity to perform light work3 could work as a finish inspector,
router, or sorter. R. at 196-97.

2

“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. § 416.967(a).
3

“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. § 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.
5

III
Summary of ALJ’s Decision
On June 14, 2012, the ALJ found that Plaintiff (1) had not engaged in substantial gainful
activity since the alleged onset date of disability of September 6, 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.
Part 404, Subpart P, Appendix 1; and (4) was unable to perform his past relevant work; but
(5) could perform other work in the national economy, such as a surveillance systems monitor,
document preparer, or ink printer. R. at 15-19. The ALJ accordingly found that he was not
disabled from September 6, 2009, through the date of the decision. R. at 19.
In so finding, the ALJ found that Plaintiff had the RFC “to perform a range of low-stress,
unskilled, sedentary work” (R. at 18), specifically, “sedentary work, unskilled, with a sit/stand
option at will, limited dominant hand usage, and limited general public contact” (R. at 17).
Further, 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 18. The
ALJ also weighed the opinion evidence in the record, giving (1) “significant weight” to the
opinions of the state agency medical consultants “because their opinions are largely consistent
with the evidence of record as a whole” and (2) “little weight” to Dr. Weiss’ opinion because
“Dr. Weiss did not define [Plaintiff’s] functional limitations with any degree of specificity.” R.
at 18. The ALJ noted that Dr. Weiss’ opinion that Plaintiff is disabled “is merely conclusory and

6

constitutes an ultimate conclusion that is reserved to the Commissioner.” R. at 18. “In sum,
[Plaintiff’s] activities of daily living, the medical and other evidence of record, and the findings
of the State Agency consultants suggest that [Plaintiff] can sustain a greater capacity than he
described in connection with his application and at the hearing.” R. at 18. “Given this evidence,
the undersigned concludes that [Plaintiff’s] subjective complaints and alleged limitations are not
fully persuasive.” R. at 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
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production

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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
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),

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,
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

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).

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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.

ALJ’s Credibility Determination
Plaintiff asserts that the ALJ erroneously evaluated his subjective complaints. Pl.’s Mem.

Supp. Mot. Summ. J. 8-11, ECF No. 10-1. He maintains that the ALJ “failed to provide any
cogent explanation to support his credibility assessment.” Id. at 10. Plaintiff further contends
that the ALJ failed to consider the factors delineated in Social Security Ruling 5 (“SSR”) 96-7p,
so the ALJ “applied an improper standard to the evaluation of the Plaintiff’s subjective
complaints, and his evaluation defies review.”

Id. at 10-11.

As discussed further below,

Plaintiff’s arguments are unavailing.
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
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

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.
11

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).
Here, Plaintiff argues that the ALJ “failed to provide specific reasons for the finding on
credibility, supported by the evidence in the case record, as required.” Pl.’s Mem. Supp. Mot.
Summ J. 10, ECF No. 10-1 (quoting SSR 96-7p) (internal quotation marks omitted). The ALJ
considered the evidence, however, and found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but that Plaintiff’s
“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 18. The ALJ
found that Plaintiff’s “activities of daily living, the medical and other evidence of record, and the

12

findings of the State Agency consultants suggest that [Plaintiff] can sustain a greater capacity
than he described in connection with his application and at the hearing.” R. at 18.
In this regard, the ALJ noted that Plaintiff did not drive, but he cooked his own meals,
watched television, and walked around to exercise his legs. R. at 17. 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-

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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, 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 next maintains that the ALJ failed to consider all the credibility factors under
SSR 96-7p. Pl.’s Mem. Supp. Mot. Summ. J. 10-11, ECF No. 10-1. 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, the ALJ considered Plaintiff’s “activities of daily living, the medical and other
evidence of record, and the findings of the State Agency consultants” before concluding that
Plaintiff’s “subjective complaints and alleged limitations are not fully persuasive.” R. at 18.
Thus, the Court finds that the ALJ complied with SSR 96-7p. See Ketcher, 68 F. Supp. 2d at
652. Plaintiff’s assertion to the contrary is without merit.

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B.

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

Pl.’s Mem. Supp. Mot. Summ. J. 3-8, ECF No. 10-1 (citing, inter alia, Fleming v. Barnhart, 284
F. Supp. 2d 256, 271-72 (D. Md. 2003)). Plaintiff maintains that the ALJ failed to perform a
function-by-function assessment of his ability to perform the physical and mental demands of
work. Id. at 5-8. For the reasons discussed below, Plaintiff’s assertion is without merit.
Plaintiff first maintains that the ALJ failed to set forth a narrative discussion under SSR
96-8p, contending that the ALJ did not explain the evidence upon which he relied to support his
RFC assessment, citing Lane-Rauth v. Barnhart, 437 F. Supp. 2d 63, 67 (D.D.C. 2006).
However, “SSR 96-8p only requires consideration of all [seven functional] factors [relating to
sitting, standing, walking, lifting, carrying, pushing, and pulling], not enumeration of all the
factors.” Banks v. Astrue, 537 F. Supp. 2d 75, 84 (D.D.C. 2008). SSR 96-8p “does not require
written articulation of all seven strength demands.” Id. at 85. Accordingly, “a written functionby-function analysis is not required.” Id.; see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005) (“Preparing a function-by-function analysis for medical conditions or impairments that the
ALJ found neither credible nor supported by the record is unnecessary.” (citing SSR 96-8p)).
In this case, the ALJ discussed in narrative form the records of Plaintiff’s examining
sources. R. at 15-17. The ALJ further found that the opinions of the state agency medical
consultants were “largely consistent with the evidence of record as a whole.” R. at 18. The ALJ
also considered Plaintiff’s credibility when determining his RFC. R. at 18. In addition, the
ALJ’s finding that Plaintiff could perform “a range of low-stress, unskilled, sedentary work” (R.
at 18) is sufficient to demonstrate that Plaintiff can perform work on a regular and continuing
basis. See Hines, 453 F.3d at 563 (stating that ALJ’s determination of claimant’s RFC implicitly

15

includes finding that claimant is able to work eight-hour day). Thus, the ALJ’s function-byfunction assessment and narrative discussion were proper, and substantial evidence supports the
ALJ’s determination of Plaintiff’s RFC. See Brown v. Astrue, Civil Action No. TMD 09-1358,
2011 WL 3047635, at *2 (D. Md. July 22, 2011); Walter v. 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).
Plaintiff further asserts that the ALJ “failed to include any of the limitations assessed by
the State Agency physician in his [RFC] assessment,” despite affording “significant weight” to
that physician’s opinion. Pl.’s Mem. Supp. Mot. Summ. J. 7-8, ECF No. 10-1 (citing R. at 18,
137-42). According to Defendant, however, the “postural limitations the ALJ did not include—
no climbing ladders, ropes, or scaffolds; occasional climbing of ramps and stairs; and occasional
balancing, stooping, kneeling, crouching, and crawling—do not ordinarily have a significant
impact on the broad world of work and would not change the outcome of the case.” Def.’s Mem.
Supp. Mot. Summ. J. 11, ECF No. 12-1 (citation omitted).
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 this case, although the ALJ must articulate the

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reasons for crediting one doctor’s opinion over another’s, see Murphy v. Bowen, 810 F.2d 433,
437 (4th Cir. 1987), and must describe the weight given to the opinions of state agency medical
consultants, see 20 C.F.R. § 416.927(e)(2)(ii), “nothing requires the ALJ to provide reasons for
failing to adopt certain limitations identified by the state agency consultants as [Plaintiff]
suggests. Failing to adopt all limitations also does not indicate that those limitations were not
considered.” Nicolls v. Astrue, 874 F. Supp. 2d 785, 802 (N.D. Iowa 2012). “Therefore, the ALJ
did not err by failing to include every limitation identified by the state agency consultant[]” in his
RFC assessment. Id.; see McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011) (“[W]e do not
require an ALJ to mechanically list and reject every possible limitation.”).
Further, even if the ALJ’s omission of the postural limitations mentioned above was
erroneous, “this error does not, as the plaintiff argues, require remand.” Farnsworth v. Astrue,
604 F. Supp. 2d 828, 837 (N.D.W. Va. 2009). Remand is not required where, despite the ALJ’s
error, the ALJ would have reached the same result notwithstanding his error. Id. (citing Mickles,
29 F.3d at 921). Even if the ALJ had included in his RFC assessment the postural limitations as
opined by the state agency medical consultant, “there is no indication that the ALJ would have
reached a different conclusion regarding the availability of jobs in the national and regional
economies.” Id.; see Coles v. Astrue, Civil No. JKS 08-321, 2009 WL 3380334, at *3 (D. Md.
Oct. 16, 2009) (“[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

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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).”). In sum, substantial evidence supports the assessment of
Plaintiff’s RFC by the ALJ, who applied the correct legal standards in this case.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 12) is
GRANTED.

Plaintiff’s Motion for Summary Judgment (ECF No. 10) is DENIED.

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

Date: May 14, 2014

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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The