Stone v. Colvin

Filing 23

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/9/2015. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
WILLIAM STONE,

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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 14-2338

MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
William Stone (“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. 20) and Defendant’s Motion for Summary Judgment (ECF No. 21).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. 21) is GRANTED,
Plaintiff’s Motion for Summary Judgment (ECF No. 20) is DENIED, and the Commissioner’s
final 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 1963, has a GED, and previously worked as a tree trimmer/laborer.
R. at 16, 24. On March 16, 2012, Plaintiff protectively applied for disability insurance benefits
(“DIB”) and SSI, alleging disability since birth due to seizures and torn ligaments in his right
knee. R. at 10, 132-42, 158. The Commissioner denied Plaintiff’s applications initially and
again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). R. at 33-88. Plaintiff then amended his alleged onset date of disability to January 24,
2012, and withdrew his application for DIB. R. at 10, 206. On April 16, 2013, ALJ Eugene
Bond held a hearing in Washington, D.C., at which Plaintiff and a vocational expert (“VE”)
testified. R. at 20-32. On April 24, 2013, the ALJ issued a decision finding Plaintiff not
disabled since the application date of March 16, 2012. R. at 7-18. Plaintiff sought review of this
decision by the Appeals Council, which denied Plaintiff’s request for review on May 22, 2014.
R. at 1-6. 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 July 23, 2014, 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 Consultants
On May 7, 2012, a state agency consultant, S. Rudin, M.D., assessed Plaintiff’s physical

residual functional capacity (“RFC”). R. at 37-39, 45-47. Dr. Rudin 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 two 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 37, 45. Because of Plaintiff’s history of
seizures, he occasionally could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs
(but never ladders, ropes, or scaffolds). R. at 37-38, 45-46. Plaintiff also had to avoid all
exposure to hazards, such as machinery and heights. R. at 38, 46. Plaintiff had no manipulative,
visual, or communicative limitations, however. R. at 38, 46.
On June 15, 2012, another state agency medical consultant, Henry Scovern, M.D., also
assessed Plaintiff’s physical RFC. R. at 56-58, 66-68. Dr. Scovern 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 two 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 57, 67. Plaintiff occasionally could
balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes, or
scaffolds). R. at 57, 67. Although he had no manipulative, visual, or communicative limitations,
Plaintiff was to avoid all exposure to hazards. R. at 57-58, 67-68.

3

B.

Hearing Testimony
1.

Plaintiff’s Testimony

In his decision, the ALJ reviewed Plaintiff’s testimony: “At the hearing, [Plaintiff]
alleged disability due to a seizure disorder. He testified that he has seizures two to three times
per week despite compliance with treatment. He reports that he has residual dizziness and walks
with an awkward balance.” R. at 14. Plaintiff also submitted at the hearing the calendars of his
girlfriend, who had logged his seizures from January 2012 to April 2013. R. at 27, 209-25.
2.

VE Testimony

According to the VE, a hypothetical person with Plaintiff’s same age, education, and
work experience who had the ability to (1) do unskilled, light work2 with a sit-stand option at
will; (2) follow simple instructions routinely; (3) interact with supervisors, co-workers, and the
general public frequently; (4) use judgment in making simple, work-related decisions; and to
(5) perform work that did not require satisfying production quotas could perform the jobs of
router, counter clerk, or office helper. R. at 29. Her testimony regarding a sit-stand option is
based on her experience and knowledge rather than on the Dictionary of Occupational Titles.3
R. at 30.

2

“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. “To be considered capable of performing a full or wide range of light work, [the claimant]
must have the ability to do substantially all of these activities.” Id. “If someone can do light
work, [the Commissioner determines] that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.” Id.
3

“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);
4

III
Summary of ALJ’s Decision
On April 24, 2013, the ALJ found that Plaintiff (1) had not engaged in substantial gainful
activity since the application date of March 16, 2012; and (2) had an impairment or a
combination of impairments considered to be “severe” on the basis of the requirements in the
Code of Federal Regulations; but (3) did not have an impairment or a combination of
impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P,
app. 1; and (4) was unable to perform his past relevant work; but (5) could perform other work in
the national economy, such as a router, counter clerk, or office helper. R. at 12-17. The ALJ
thus found that he was not disabled from March 16, 2012, through the date of the decision. R. at
17.
In so finding, the ALJ found that Plaintiff had the RFC “to perform light work as defined
in 20 CFR 416.967(b) with a sit/stand option at will. [Plaintiff] is restricted to unskilled work.”4
R. at 13. The ALJ gave “significant probative weight” to the opinions of Drs. Rudin and
Scovern “because they were privy to the medical record. While the undersigned found [Plaintiff]
capable of work at the light exertional level, a high [sic] level than opined by the consultants

see DeLoatche v. Heckler, 715 F.2d 148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 416.966(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).
4

“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 416.968(a).
5

based upon [Plaintiff’s] hearing testimony, the residual functional capacity encompasses the
ability to perform sedentary work.”5 R. at 16 (citations omitted).
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

5

“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). “Although
a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.” Id.
6

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).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),

6

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.
7

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).

8

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).

9

VI
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling7 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-10,
ECF No. 20-1. He 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. In
particular, Plaintiff asserts that the ALJ failed to include in the RFC assessment any limitation
related to his seizure disorder, despite finding that the seizure disorder was a severe impairment
at step two of the sequential evaluation process. Id. at 5-6. Plaintiff also contends that the ALJ
failed to evaluate properly the state agency consultants’ opinions. Id. at 6-10. Plaintiff further
asserts that the ALJ failed to develop properly the administrative record. Id. at 10-12.
A.

ALJ’s RFC Assessment
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”

7

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.
10

Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory evidence in the record, or where
other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637.
Plaintiff first contends that the ALJ failed to include in the RFC assessment any
limitation related to his seizure disorder, which the ALJ found to be severe. Pl.’s Mem. Supp.
Mot. Summ. J. 3-6, ECF No. 20-1. “To the extent [Plaintiff] suggests that a finding of severe
impairment at Step 2 necessarily requires limitations on a claimant’s ability to perform basic
work activities, this argument has no merit,” however. Burkstrand v. Astrue, 346 F. App’x 177,
180 (9th Cir. 2009) (citing Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228-29 (9th
Cir. 2009)). 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

11

Yuckert, 482 U.S. at 153-54, 107 S. Ct. at 2297-98); see Felton-Miller v. Astrue, 459 F. App’x
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

[Commissioner] 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 [Commissioner] 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 [the Commissioner] 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. C13-3021-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.”), report and recommendation adopted, No. C13-3021MWB, 2014 WL 2884028 (N.D. Iowa June 25, 2014); Copes v. Comm’r, Soc. Sec. Admin., Civil
No. SAG-11-3487, 2013 WL 1809231, at *1 (D. Md. Apr. 26, 2013) (“[A]n ALJ is not required
to include a corresponding limitation for each severe impairment.”). The ALJ thus did not err at
steps two and four.

In addition, as Defendant points out, Plaintiff has not identified any

additional limitation resulting from his seizure disorder that the ALJ should have included in the
RFC assessment (Def.’s Mem. Supp. Mot. Summ. J. 12, ECF No. 21-1). See Reid v. Comm’r of
Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (“[The claimant] has failed to point to any specific
piece of evidence not considered by the Commissioner that might have changed the outcome of
his disability claim.”). Plaintiff’s argument in this regard thus is unavailing.

12

Plaintiff further maintains that the ALJ failed to evaluate properly the opinions of Drs.
Rudin and Scovern, the state agency consultants who opined that Plaintiff was capable of
standing and/or walking for only two hours in an eight-hour workday (R. at 37, 45, 57, 67).
According to Plaintiff, the ALJ erroneously found that he was capable of performing work at the
light exertional level, which encompasses the ability to perform sedentary work. Pl.’s Mem.
Supp. Mot. Summ. J. 6, ECF No. 20-1. Plaintiff contends that his hearing testimony does not
support an RFC assessment greater than sedentary work. Id. Plaintiff also maintains that,
although the ALJ gave “significant probative weight” to the state agency consultants’ opinions,
the ALJ did not include in the RFC assessment their opinions regarding his ability to stand, walk,
balance, stoop, kneel, crouch, crawl, climb, and to be exposed to hazards. Id. at 7.
Plaintiff’s assertions are unavailing. Although Plaintiff maintains that the ALJ erred in
finding that his hearing testimony supported his capability to perform light work, he testified that
he took care of his 77-year-old father, who “needs a scooter to get around.” R. at 25. The ALJ
also found that Plaintiff had reported in a function report that he “takes care of his elderly father,
whom he helps to bathe on a daily basis. [Plaintiff] reports having to lift his father into and out
of the tub with the assistance of his girlfriend, which would be comparable to lifting an object
over 100 pounds.” R. at 15 (citing R. at 184-93); see R. at 185. Plaintiff further reported cutting
his grass using a riding mower every week or every other week for one hour. R. at 25, 186.
Substantial evidence of Plaintiff’s daily living activities thus supports finding that Plaintiff could
lift and carry at a level beyond the sedentary exertional level.
The full range of light work requires the ability to stand and walk for six hours out of an
eight-hour workday, however. SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983). Plaintiff thus
contends that the ALJ’s RFC assessment of light work contradicts the state agency consultants’

13

opinions that he was limited to standing and/or walking for a total of two hours in an eight-hour
workday (R. at 37, 45, 57, 67). Pl.’s Mem. Supp. Mot. Summ. J. 6, ECF No. 20-1; see SSR 8310, 1983 WL 31251, at *5 (“Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met. . . . Since being on one’s feet is required ‘occasionally’ at
the sedentary level of exertion, periods of standing or walking should generally total no more
than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6
hours of an 8-hour workday.”). However, “an RFC limiting standing or walking to about two
hours does not mandate a finding that [a claimant] could only perform sedentary work.” Hence
v. Astrue, No. 4:12CV1, 2012 WL 6691573, at *8 (E.D. Va. Nov. 30, 2012), report and
recommendation adopted, No. 4:12CV1, 2012 WL 6697109 (E.D. Va. Dec. 21, 2012). Rather,
the state agency consultants’ opinions regarding Plaintiff’s capacity to stand and/or walk in an
eight-hour workday “rendered [him] capable not only of sedentary work, but of a reduced range
of light work that would permit [him] to sit for the majority of the workday.” Norris v. Comm’r,
Soc. Sec., Civil No. WDQ-13-2426, 2014 WL 2612367, at *4 (D. Md. June 9, 2014); see Carroll
v. Colvin, Civil No. TMD 14-921, 2015 WL 5008738, at *3 (D. Md. Aug. 20, 2015) (noting
VE’s testimony that “[a] person could perform less than the full range of sedentary and light
work if that person could lift and carry no greater than 10 pounds frequently or 20 pounds
occasionally, walk or stand for two hours in an eight-hour workday for 15 to 30 minutes at a
time, and sit for up to six hours in an eight-hour workday for 15 to 30 minutes at a time”). The
ALJ appropriately included a sit-stand option in the RFC assessment, and the VE testified that
there were light jobs that allowed a worker to sit or stand at will (R. at 29-30). Because the state
agency consultants’ opinions on which the ALJ relied support an RFC assessment of a reduced
range of light work, Plaintiff’s argument to the contrary is without merit. See Norris, 2014 WL

14

2612367, at *4 (“The ALJ appropriately included a provision in [the claimant’s] RFC assessment
that she ‘must have the option to alternate between sitting and standing.’ As the VE testified,
there are light jobs, specifically ‘bench positions,’ allowing a worker to sit or stand at will.
Because [the claimant] is capable of performing that category of light work positions, the ALJ’s
finding comports with the provisions of SSR 83-10.” (citations omitted)).
Plaintiff also asserts that substantial evidence does not support the ALJ’s RFC assessment
because it did not include the state agency consultants’ opinions regarding his postural and
environmental limitations. Pl.’s Mem. Supp. Mot. Summ. J. 7, ECF No. 20-1. These limitations
are not implicated in the jobs of router, counter clerk, and officer helper, however. See DOT
222.587-038, 1991 WL 672123 (router) (involving no climbing, balancing, stooping, kneeling,
crouching, crawling, or hazards); DOT 249.366-010, 1991 WL 672323 (counter clerk) (same);
DOT 239.567-010, 1991 WL 672232 (officer helper) (requiring occasional stooping but not
involving climbing, balancing, kneeling, crouching, crawling, or hazards). Thus, even if the ALJ
had included in his RFC assessment the postural and environmental limitations as opined by the
state agency consultants, “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) (“[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).”).
Plaintiff’s argument in this regard thus is without merit as well.

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B.

ALJ’s Duty to Develop the Record
Plaintiff finally asserts that the ALJ failed in his duty to develop the record during the

eleven-minute hearing because the ALJ asked Plaintiff “no questions regarding the nature of his
medical treatment, no questions regarding his frequency of his seizures, no questions regarding
his knee condition, no questions regarding his functional limitations, and no questions regarding
his subjective complaints, such as pain, dizziness, and residual effects of his seizures.” Pl.’s
Mem. Supp. Mot. Summ. J. 10-11, ECF No. 20-1 (citing, inter alia, Fleming v. Barnhart, 284 F.
Supp. 2d 256, 272 (D. Md. 2003)). According to Plaintiff, the ALJ thus “failed in his duty to
‘scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts,’”
and so failed to develop properly the administrative record. Id. at 12 (relying on Walker v.
Harris, 642 F.2d 712 (4th Cir. 1981)). For the reasons stated below, Plaintiff’s contention is
without merit.
“[T]he ALJ has a duty to explore all relevant facts and inquire into the issues necessary
for adequate development of the record, and cannot rely only on the evidence submitted by the
claimant when that evidence is inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir.
1986). In cases where the claimant is not represented by counsel, “[w]here the ALJ fails in his
duty to fully inquire into the issues necessary for adequate development of the record, and such
failure is prejudicial to the claimant, the case should be remanded.” Marsh v. Harris, 632 F.2d
296, 300 (4th Cir. 1980). “The length or brevity of a benefits hearing . . . is not dispositive of
whether or not the ALJ has met his or her obligation to adequately develop the record.”
Thompson v. Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993). The more important inquiry is
whether the ALJ asked sufficient questions to ascertain (1) the nature of a claimant’s alleged
impairments, (2) what ongoing treatment and medication the claimant is receiving, and (3) the

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impact of the alleged impairment on a claimant’s daily routine and activities. Musgrave v.
Sullivan, 966 F.2d 1371, 1375 (10th Cir. 1992). “[W]hen the claimant is represented by counsel
at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant’s
counsel to structure and present claimant’s case in a way that the claimant’s claims are
adequately explored.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). “Thus, in a
counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring
further development.” Id.
In this case, the ALJ inquired at the hearing about the nature of Plaintiff’s alleged knee
impairment and his daily living activities. R. at 24-26. In response to his attorney’s questions,
Plaintiff testified about the frequency and effect of his seizures. R. at 26-27. Exhibits in the
record elaborated on Plaintiff’s impairments and how they allegedly affected his activities and
exertional limitations. R. at 184-93, 209-25. Plaintiff thus fails to demonstrate how further
questioning, a longer hearing, or a fuller record reasonably would have led to a different
decision. Cf. Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980). In this case, where Plaintiff was
represented by counsel who had the opportunity to inquire into the issues requiring further
development, the Court concludes that the ALJ satisfied his duty to develop the record. Cf.
Walker, 642 F.2d at 714 (holding that claimant suffered clear prejudice from absence of counsel
and from ALJ’s passive role); Fleming, 284 F. Supp. 2d at 276 (“[W]here absence of counsel
creates clear prejudice or unfairness to claimant, a remand to the [Commissioner] is proper.”).
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards here.

Thus, Defendant’s Motion for Summary Judgment is GRANTED,

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

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VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 21) is
GRANTED.

Plaintiff’s Motion for Summary Judgment (ECF No. 20) is DENIED.

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

Date: September 9, 2015

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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The