Borza v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 8/28/2017. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Civil No. TMD 16-901
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff William Borza 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. 16) and Defendant’s
Motion for Summary Judgment (ECF No. 19).2 Plaintiff contends that the administrative record
does not contain substantial evidence to support the Commissioner’s decision that he is not
disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion
On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
for Summary Judgment (ECF No. 19) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 16) is DENIED, and the Commissioner’s final decision is AFFIRMED.
Plaintiff was born in 1967, has a high-school education, and previously worked as an
automotive salesperson and panel maker.
R. at 26, 163.
Plaintiff protectively filed an
application for DIB on January 2, 2013, alleging disability beginning on January 7, 2012, due to
degenerative disc disease.
R. at 135-42, 151, 162.
The Commissioner denied Plaintiff’s
application initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 51-79. On November 13, 2014, ALJ F.H. Ayer held a
hearing in Washington, D.C., at which Plaintiff and a vocational expert (“VE”) testified. R. at
31-50. On February 3, 2015, the ALJ issued a decision finding Plaintiff not disabled from the
alleged onset date of disability of January 7, 2012, through the date of the decision. R. at 9-30.
Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s request
for review on January 27, 2016. R. at 1-8. The ALJ’s decision thus became the final decision of
the Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120
S. Ct. 2080, 2083 (2000).
On March 25, 2016, 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
The Court reviews here and in Part VI below Plaintiff’s relevant medical evidence.
State Agency Medical Consultants
On May 7, 2013, a state agency medical consultant, M. Feld, M.D., assessed Plaintiff’s
physical residual functional capacity (“RFC”). R. at 54-55. Dr. Feld 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 eighthour workday; and (4) perform unlimited pushing and/or pulling. R. at 54. Plaintiff occasionally
could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but never ladders, ropes,
or scaffolds). R. at 55. Plaintiff had no manipulative, visual, communicative, or environmental
limitations. R. at 55. On July 5, 2013, another state agency consultant, Walter Cobbs, expressed
the same opinion about Plaintiff’s physical RFC, except that Plaintiff’s overhead reaching with
the right upper extremity was limited. R. at 63-65.
Mariam Razaq, D.O.
“On August 11, 2011, [Plaintiff] presented to Mariam Razaq, D.O., at Potomac Pain and
Rehabilitation Associates for complaints of neck and low back pain.” R. at 17; see R. at 281-85.
Dr. Razaq thereafter treated Plaintiff through at least 2014. See R. at 214-353. The ALJ
reviewed Dr. Razaq’s opinion in the ALJ’s decision:
On October [29,] 2014, Mariam Razaq, D.O., noted she had been treating
[Plaintiff] since October 2011 for low back pain with radiation of pain into legs,
muscle spasm, restriction in range, inability to sit, stand, or walk any length of
time, difficulty sleeping due to pain, and impaired concentration due to pain
medication. She noted an MRI of [Plaintiff’s] lumbar spine revealed facet
arthropathy, lumbar fusion at three levels, L3-S1, with four surgeries total, and an
MRI scan of his cervical spine revealed disc degeneration and spinal stenosis.
She opined [Plaintiff’s] medical condition caused pain and fatigue in the neck and
low back that reached levels of severity that would affect [Plaintiff’s]
concentration/memory and cause an inability to focus and stay on task in a work
setting 50% of the day and 80% of the week. Dr. Razaq opined [Plaintiff’s] pain
and/or fatigue resulted in a requirement for extra rest breaks causing him to be off
task in a work setting more than one hour total during an 8-hour workday and that
he would require bedrest for pain relief or because of fatigue such that he could
not report to work periodically or 5 days a month on average.
Dr. Razaq further opined [Plaintiff] would not be able to work full time at
any level of exertion. She opined [Plaintiff] could sit for a total of 2 hours during
an entire 8-hour day in a work setting and stand or walk for a total of 2 hours
during an entire 8-hour day in a work setting. She opined [Plaintiff] could
frequently lift up to 10 pounds, occasionally lift up to twenty pounds, but never
lift over 20 pounds. She opined [Plaintiff] could perform simple grasping and
fine manipulation bilaterally, but no pushing and pulling of arm controls. Dr.
Razaq opined [Plaintiff] could use feet during the workday for repetitive
movements as in pushing and pulling of leg controls for limited times.
Finally, Dr. Razaq opined [Plaintiff] had no restriction of activities during
the workday involving unprotected heights, being around moving machinery, or
exposure to dust, fumes, and/or gases, but moderate restriction to driving
automotive equipment and total restriction to exposure to marked changes in
temperature and humidity. She opined [Plaintiff’s] impairments were expected to
last over 12 months from its date of onset and that his prognosis for recovery of
function was poor/guarded.
R. at 23-24 (citations omitted); see R. at 311-13.
The ALJ reviewed Plaintiff’s testimony in the ALJ’s decision:
[Plaintiff’s] representative noted [Plaintiff] had four back surgeries and he
received a closed period of disability benefits in 2005. He stated [Plaintiff]
returned to work and suffered constant pain. He reported [Plaintiff] experienced
four car accidents during that time, which he stated [Plaintiff] attributed to his
significant pain medication use during that time. He stated [Plaintiff’s] physicians
told him to stop working. He reported [Plaintiff] takes methadone and took
oxycodone in the past. He stated [Plaintiff] suffers concentration and memory
deficits, and naps during the day. He reported [Plaintiff] has also now developed
a neck problem, in addition to his back problem, but he is unable to get an MRI
scan of his cervical spine due to insurance issues. He stated [Plaintiff]
additionally suffers from a significant diarrhea problem and that his limited
insurance also prevents treatment for this issue currently.
[Plaintiff] testified he had multiple surgeries with his last surgery being a
spinal fusion in 1998. He reported he stopped working in 2008 as he started
missing work because he “just couldn’t make it.” He stated he was having back
and neck problems that was [sic] causing a lot of pain. He testified he was having
trouble even getting dressed. He reported he started missing a couple of days a
week and although they were very lenient with him, they needed someone there
so it was a mutual decision to part ways. He testified he drew unemployment
benefits after leaving that job. He reported his father brought him to the hearing.
He stated he wrecked multiple cars while on pain medication. He testified he tries
not to drive at all and he reported he does not have a driver’s license at this time.
[Plaintiff] reported he receives treatment at the pain management clinic. He
stated his prescriptions are generally for 30-day periods and that he is basically
out of any other options. He testified he is not sure whether his “stomach issues,”
which cause diarrhea five days a week for a couple of hours each morning or
constipation, is due to his medication or not. He reported he was told by “a
handful of doctors” that the spinal fusion did not take. He stated he has had MRI
scans since the fusion that have confirmed this and that he also has a hole in his
right hip from the surgery.
On a typical day, he stated he goes to the bathroom and takes medicine.
He stated he usually is done with the bathroom and hopefully able to eat
something around noon. If he is having a good day, he reported he sometimes is
able to do laundry or other things around the house. He stated he tries to do as
much as he can on a good day, but that he typically pays for the activities for the
next few days with increased pain. He reported he usually spends about 4-5 hours
lying down and frequently watches television, reads, or does Sudoku puzzles. He
testified his favorite positions are lying down or walking. He stated he is close to
his family and he talks to his mother and father daily. He reported his family
comes to his house to watch football with him on Sundays. He testified he is
happier working and that he has a happier life when he is able to keep moving.
He stated he was told at the age of 18, by a professor at Georgetown University
who taught doctors how to do laminectomies and discectomies, that his back was
deteriorating at such a rapid rate that he would be lucky to be walking still at the
age of 30.
R. at 16-17; see R. at 34-35, 39-49.
The VE testified that a hypothetical person with Plaintiff’s same age, education, and
work experience who had the RFC outlined in Part III below could not perform Plaintiff’s past
work but could perform the light jobs of officer helper, counter clerk, or router.3 R. at 37-38. A
person off task 15% to 18% daily or who would miss work two days per month would not be
able to work. R. at 38-39. With the exception of her testimony regarding a sit-stand option,
percentage of time off task, and missed workdays, the VE’s testimony was consistent with the
Dictionary of Occupational Titles.4 R. at 38-39.
Summary of ALJ’s Decision
On February 3, 2015, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of January 7, 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 an officer helper, counter clerk, or router.
R. at 14-27. The ALJ thus found that he was not disabled from January 7, 2012, through the date
of the decision. R. at 27.
“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).
“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 Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); 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).
In so finding, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] has the
[RFC] to occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10
pounds, stand and/or walk about 6 hours in an 8-hour workday, sit for a total of
about 6 hours in an 8-hour workday, occasionally reach overhead with the
dominant right upper extremity, occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl, and never climb ladders, ropes, and scaffolds. He
requires the ability to alternate between sitting and standing at will.
R. at 15.
The ALJ also considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [his] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 24. The
[Plaintiff] has described daily activities that are not limited to the extent
one would expect, given the complaints of disabling symptoms and limitations.
Although [Plaintiff] described activities which are fairly limited, a review of the
medical evidence indicates [Plaintiff] reported he spent time outside, played ball
with his 13-year-old son and attended his games, attempted to swim for exercise,
and had no difficulty performing his activities of daily living with the use of
medication and therapeutic modalities. Additionally, on October 29, 2014,
[Plaintiff’s] treating physician, Dr. Razaq, recommended [Plaintiff] participate in
aerobic activity. [R. at 314-17.]
[Plaintiff] has been prescribed and has taken appropriate medications for
the alleged impairments, including narcotic pain medication, which weighs in
[Plaintiff’s] favor, but the medical records reveal that the medications have been
relatively effective in controlling [Plaintiff’s] symptoms. The record is clear in
noting [Plaintiff] reported the medications were effective at each treatment visit
with Dr. Razaq with no reported gastrointestinal or sedation side effects. [R. at
With regard to his neck and shoulder pain, although [Plaintiff] has
received treatment for the allegedly disabling impairments, that treatment has
been essentially routine and/or conservative in nature. The evidence indicates he
received one cortisone injection to his right shoulder and the remaining treatment
has been through medication management, stretching, and ibuprofen, which
[Plaintiff] reported was helpful on numerous occasions. [R. at 214-353.]
R. at 24.
The ALJ gave “great weight” to the opinions of the state agency medical consultants. R.
at 25. The ALJ further agreed with Dr. Razaq’s opinion about Plaintiff’s ability to lift and carry,
but otherwise gave Dr. Razaq’s opinion “little weight as it is not supported by the evidence
overall, including his [sic] own clinical records.” R. at 25. The ALJ explained:
Dr. Razaq opined [Plaintiff] had poor concentration due to pain medication, yet
[Plaintiff] consistently reported no sedation with medications. Granted, [Plaintiff]
did report, in September 2014, that Flexeril made him tired, but he only used it on
occasion and not very often. These findings would also not support Dr. Razaq’s
opinion that there would be moderate restrictions for driving automotive
equipment as this restriction would seem to flow from the foregoing and
[Plaintiff] consistently denied any fatigue. Furthermore, Dr. Razaq consistently
noted on physical exams that [Plaintiff’s] mental status was normal. These
findings and reports also call into question Dr. Razaq’s opinion that pain and/or
fatigue would affect [Plaintiff’s] concentration/memory and cause an inability to
focus and stay on task in a work setting, that extra rest breaks would be necessary,
that bedrest would be required for pain relief or because of fatigue, and that full
time work would be precluded (could only sit 2 hours and stand/walk 2 hours in
an 8 hour work day). The undersigned does agree with Dr. Razaq’s conclusion
regarding [Plaintiff’s] ability for lifting and carrying (20 pounds occasionally and
10 pounds frequently), but finds little to support his [sic] opinion that pushing and
pulling of arm controls would be precluded, that pushing and pulling leg controls
would be precluded for limited times, and that there could be no exposure to
marked changes in temperature and humidity. Examination findings consistently
found only tenderness, not pain, notwithstanding [Plaintiff’s] reports of pain, and
[Plaintiff] also consistently reported that he was able to do basic tasks at home.
As such, this opinion was given little weight.
R. at 25 (citing R. at 311-13).
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, 379-80 (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.
§§ 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
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.
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 contends that the ALJ erred in evaluating the opinions of Dr. Razaq, a treating
source. Pl.’s Mem. Supp. Mot. Summ. J. 3-8, ECF No. 16-1. In this regard, the Fourth Circuit
reiterated the following standard for considering medical opinions. Dunn v. Colvin, 607 F.
App’x 264, 267-68 (4th Cir. 2015). When evaluating medical opinions, the ALJ should consider
“(1) whether the physician has examined the applicant, (2) the treatment relationship between the
physician and the applicant, (3) the supportability of the physician’s opinion, (4) the consistency
of the opinion with the record, and (5) whether the physician is a specialist.” Johnson, 434 F.3d
at 654; see 20 C.F.R. § 404.1527. “An ALJ’s determination as to the weight to be assigned to a
medical opinion generally will not be disturbed absent some indication that the ALJ has dredged
up ‘specious inconsistencies,’” Dunn, 607 F. App’x at 267 (quoting Scivally v. Sullivan, 966 F.2d
1070, 1077 (7th Cir. 1992)), “or has failed to give a sufficient reason for the weight afforded a
particular opinion,” id. (citing 20 C.F.R. § 404.1527(d) (1998)); see 20 C.F.R. § 404.1527(c).
A treating source’s opinion on issues of the nature and severity of the impairments will
be given controlling weight when well supported by medically acceptable clinical and laboratory
diagnostic techniques and when the opinion is consistent with the other substantial evidence in
the record. 20 C.F.R. § 404.1527(c)(2); see Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir.
2017). Conversely, however, “the ALJ holds the discretion to give less weight to the testimony
of a treating physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d
171, 178 (4th Cir. 2001). “[I]f a physician’s opinion is not supported by clinical evidence or if it
is inconsistent with other substantial evidence, it should be accorded significantly less weight.”
Craig, 76 F.3d at 590.
In other words, “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)). Moreover, “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
Smith, 795 F.2d at 346 (citation omitted).
An ALJ may reject a treating
physician’s opinion in its entirety and afford it no weight if the ALJ gives specific and legitimate
reasons for doing so. See Bishop v. Comm’r of Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014)
(per curiam) (citing Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001); Craig, 76
F.3d at 589-90).
A medical expert’s opinion as to whether one is disabled is not dispositive; opinions as to
disability are reserved for the ALJ and for the ALJ alone. See 20 C.F.R. § 404.1527(d)(1).
Generally, the more the medical source presents relevant evidence to support his opinion, and the
better that he explains it, the more weight his opinion is given. See id. § 404.1527(c)(3).
Additionally, the more consistent the opinion is with the record as a whole, the more weight the
ALJ will give to it. See id. § 404.1527(c)(4); see also Dunn, 607 F. App’x at 268.
Plaintiff first asserts that the ALJ failed to evaluate under Social Security Ruling6
(“SSR”) 96-2p whether the opinions of Dr. Razaq should be accorded controlling weight. Pl.’s
Mem. Supp. Mot. Summ. J. 5-6, ECF No. 16-1. Under SSR 96-2p, however, “a finding that a
physician’s opinion is inconsistent with the other substantial evidence in a claimant’s case record
is adequate to support a determination that the opinion is not entitled to controlling weight.”
Burger v. Comm’r, Soc. Sec. Admin., Civil No. SAG-14-1345, 2015 WL 467662, at *3 n.2 (D.
Md. Feb. 2, 2015) (citing SSR 96-2p, 1996 WL 374188, at *4 (July 2, 1996)). Thus, “SSR 96-2p
did not require the ALJ to make any additional findings to determine that [the] opinions [of Dr.
Razaq] were not entitled to controlling weight.” Id.
Plaintiff then maintains that, in affording Dr. Razaq’s opinions less than controlling
weight, the ALJ failed to consider the factors cited in Johnson and in 20 C.F.R. § 404.1527(c).
Pl.’s Mem. Supp. Mot. Summ. J. 6-7, ECF No. 16-1. In this case, however, “[w]hile the ALJ did
not explicitly analyze each of the Johnson factors on the record, the ALJ was clear that [the ALJ]
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
concluded that [Dr. Razaq’s] opinion was not consistent with the record or supported by the
medical evidence, which are appropriate reasons under Johnson” to afford a treating physician’s
opinion less than controlling weight. Bishop, 583 F. App’x at 67.
Plaintiff also fails to demonstrate how a consideration of these factors would alter the
weight given by the Commissioner to Dr. Razaq’s opinion. The ALJ appropriately gave little
weight to Dr. Razaq’s opinion that Plaintiff had poor concentration as a result of pain medication
because the ALJ found that he consistently reported no sedation with medications. R. at 25; see
R. at 214, 218, 221, 224, 228, 231, 235, 238, 241, 244, 247, 250, 253, 256, 259, 262, 289, 292,
295, 299, 302, 305, 308, 315, 319, 323, 326, 330, 333, 337, 341, 344, 348, 351. The ALJ
likewise found that Plaintiff’s denials of fatigue (R. at 315, 319, 323, 327, 330, 334, 337, 341,
344, 348, 352) belied Dr. Razaq’s opinion that Plaintiff would be moderately restricted in driving
automotive equipment. R. at 25. Substantial evidence thus supports the little weight given by
the ALJ to Dr. Razaq’s opinions because they were not consistent with the doctor’s treatment
notes. See Burch v. Apfel, 9 F. App’x 255, 259 (4th Cir. 2001) (per curiam) (ALJ did not err in
giving physician’s opinion little weight where physician’s opinion was not consistent with her
own progress notes); Craig, 76 F.3d at 590 (upholding ALJ’s rejection of treating physician’s
opinion because record contained persuasive contradictory evidence; opinion was conclusory and
based on claimant’s subjective reports, and treating physician’s own notes contradicted his
opinion). Substantial evidence of Plaintiff’s reported ability to perform activities at home (R. at
47-48, 169-76, 184-92, 326, 341, 344, 348) further supports the ALJ’s finding that these
activities belied Dr. Razaq’s opinions about his ability to push and pull and his inability to be
exposed to marked changes in temperature and humidity (R. at 312-13), as a claimant’s daily
activities can support the ALJ’s discounting of a treating physician’s opinion. Milam v. Colvin,
794 F.3d 978, 984 (8th Cir. 2015); see Craig, 76 F.3d at 590 (determining that treating
physician’s medical notes and claimant’s reported daily living activities were persuasive
evidence that contradicted physician’s conclusory opinion based on claimant’s subjective reports
of pain); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600-02 (9th Cir. 1999)
(considering inconsistency between treating physician’s opinion and claimant’s daily activities to
be specific and legitimate reason to discount treating physician’s opinion); Chavis v. Apfel, No.
98-1145, 1998 WL 827322, at *3 (4th Cir. Dec. 1, 1998) (per curiam) (unpublished table
decision) (“Here, the ALJ properly discounted the opinions of several of [the claimant’s] treating
physicians that she was disabled because the opinions were conclusory and inconsistent with
various activities that [the claimant] has engaged in over the years.”). But see Lewis, 858 F.3d at
868 n.3 (noting that disability claimants “should not be penalized for attempting to lead normal
lives in the face of their limitations” (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
Plaintiff further asserts that the ALJ failed to find that his “incomplete fusion from L3 to
S1” was a severe impairment, and so the ALJ’s evaluation of Dr. Razaq’s opinion is
“insupportable.” Pl.’s Mem. Supp. Mot. Summ. J. 8, ECF No. 16-1. “[I]ssues averted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived for purposes of appeal,” however. Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36
(1st Cir. 1994). Without further explanation of his argument, Plaintiff’s contention in this regard
thus is unavailing.
Plaintiff also argues that the ALJ “failed to place any limitation upon [his] ability to walk,
without explanation.” Pl.’s Mem. Supp. Mot. Summ. J. 8, ECF No. 16-1. As the Commissioner
points out, however, the ALJ found that Plaintiff could stand or walk for a total of six hours in an
eight-hour workday, and the ALJ also included an option to alternate between sitting and
standing at will. R. at 15. Because “this option affords [Plaintiff] the greatest possible latitude in
accommodating [his] own standing and walking limitations,” Hammond v. Comm’r, Soc. Sec.
Admin., Civil No. SAG-10-0499, 2013 WL 141144, at *3 (D. Md. Jan. 9, 2013), Plaintiff’s
argument is without merit.
Plaintiff finally maintains that the ALJ erred in finding that “[e]xamination findings
consistently found only tenderness, not pain, notwithstanding [his] reports of pain” (R. at 25).
Pl.’s Mem. Supp. Mot. Summ. J. 8, ECF No. 16-1. Even if this were erroneous, “reversal is not
required when the alleged error ‘clearly had no bearing on the procedure used or the substance of
[the] decision reached.’” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004) (quoting
Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84 S. Ct. 1236, 1245
(1964)). In short, “[t]he ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see Johnson v. Apfel, 189 F.3d 561, 564
(7th Cir. 1999) (Posner, C.J.) (upholding ALJ’s rejection of physician’s check-box form where it
was contradicted by evidence in record); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)
(finding that ALJ permissibly rejected psychological evaluations because they were check-off
reports that did not contain any explanation of the bases of their conclusions).
substantial evidence supports the weight afforded by the ALJ to Dr. Razaq’s opinions, the Court
grants Defendant’s Motion for Summary Judgment and affirms the Commissioner’s final
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
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 19) is
Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED. The
Commissioner’s final decision is AFFIRMED. A separate order will issue.
Date: August 28, 2017
Thomas M. DiGirolamo
United States Magistrate Judge
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