Amick v. Commissioner of the Social Security Administration

Filing 17

ORDER re 1 Complaint - Social Security, filed by David W Amick. It is ordered that the decision of the Commissioner is affirmed. Signed by Magistrate Judge Bristow Marchant on 6/11/2012. (jbry, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

DAVID W. AMICK,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
COMMISSIONER OF SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
____________________________________)

CIVIL ACTION NO. 9:11-0192-BM

ORDER

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the final decision of the Commissioner wherein he was denied disability benefits.
Plaintiff filed an application for Disability Insurance Benefits (DIB) on September 26, 2005, alleging
disability as of October 5, 2004 due to results of bilateral hip replacements. (R.pp. 110-111, 121).
Plaintiff’s claim was denied initially and upon reconsideration. Plaintiff then
requested a hearing before an Administrative Law Judge (ALJ), which was held on October 3, 2008.
(R.pp. 21-67). The ALJ thereafter denied Plaintiff’s claim in a decision issued December 1, 2008.
(R.pp. 10-20). The Appeals Council denied Plaintiff’s request for a review of the ALJ’s decision,
thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-3).
Plaintiff then filed this action in United States District Court. Plaintiff asserts that
there is not substantial evidence to support the ALJ’s decision, and that the decision should be
reversed and remanded for further proceedings or for an award of benefits. The Commissioner

contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff
was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the
Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate
conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan,
907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978);
Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial
evidence to support the Commissioner's decision, it is the court's duty to affirm the decision.
Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance. If there is evidence to justify refusal to direct
a verdict were the case before a jury, then there is “substantial evidence.”
[emphasis added].
Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)).
The Court lacks the authority to substitute its own judgment for that of the
Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial
proceeding and requires that the court uphold the [Commissioner's] decision even should the court
disagree with such decision as long as it is supported by substantial evidence." Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
A review of the record shows that Plaintiff, who was forty (40) years old when he
alleges he became disabled, has a high school education with past relevant work experience as an
2

order filler and warehouse worker. (R.pp. 60, 110, 129, 131). In order to be considered “disabled”
within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or
combination of impairments which prevent him from engaging in all substantial gainful activity for
which he is qualified by his age, education, experience and functional capacity, and which has lasted
or could reasonably be expected to last for at least twelve (12) consecutive months. After a review
of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer
from the “severe” impairments1 of bilateral avascular necrosis of the hips with bilateral total hip
replacements, and a history of a left fractured patella, rendering him unable to perform his past
relevant work, he nevertheless retained the residual functional capacity (RFC) to perform a restricted
range of sedentary work2, and was therefore not entitled to disability benefits. (R.pp. 12-13, 18).
Plaintiff asserts that in reaching this decision, the ALJ erred by failing to determine
his exertional capacity to sit as part of his RFC finding, and by failing to accord sufficient weight
to the opinion of Plaintiff’s treating orthopedist, Dr. Randall Suarez. However, after careful review
and consideration of the evidence and arguments presented, the Court finds for the reasons set forth
hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that
the decision must therefore be affirmed.

1

An impairment is “severe” if it significantly limits a claimant’s physical or mental ability to do
basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
2

Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally lifting and
carrying articles like docket files, ledgers, and small tools. 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. 20 C.F.R. § 404.1567(a) (2005).
3

I.
(Medical Evidence)
The medical record reflects that in October 2004 Plaintiff was found to have severe
degenerative changes of the right femoral head, and was referred to orthopedic surgeon Dr. Frank
Voss for possible hip replacement surgery. (R.pp. 244, 246). Plaintiff was seen by Dr. Voss on
October 29, 2004, where he complained of a chronic backache, joint pain in the right hip, and
swelling in the right hip. On examination Dr. Voss found Plaintiff’s right leg to be “markedly
shortened”, and that Plaintiff had a severe limp. Radiographs showed “severe collapse of his right
hip”, as well as osteonecrosis3 of the left hip. However, Plaintiff had no restriction in his range of
motion in his left hip, his sensation was intact, there was no pedal edema noted, and his motor
strength was found to be 5/5 (full). Dr. Voss opined that Plaintiff’s osteonecrosis could possibly be
related to Plaintiff’s alcoholism, although it also could be a result of steroids from a previous
medication. Dr. Voss recommended a total right hip arthroplasty, which Dr. Voss thereafter
performed on November 30, 2004. At the surgery, Dr. Voss noted that Plaintiff had osteonecrosis
of both hips, although the left side was asymptomatic and “pre collapse”. (R.pp. 205, 300-301).
At the conclusion of the surgery, the length of both of Plaintiff’s legs was equal, and
Plaintiff’s hip was completely stable and had no tendency to dislocate. (R.pp. 205-206). Plaintiff
was thereafter discharged from the hospital on December 3, 2004, at which time he was ambulating

3

Osteonecrosis is bone death caused by poor blood supply to the area. After a while the bone can
collapse. If this condition is not treated, the joint will deteriorate and this will become severe
arthritis. It is most common in the hip and shoulder, but can affect other large joints such as knee,
elbow, wrist and ankle. http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0004519/, June 4, 2011.
4

with a rolling walker. Plaintiff was referred to physical therapy and weight bearing activity “as
tolerated to right lower extremity”. (R.p. 203).
Plaintiff was seen by Dr. Voss for a follow-up visit on December 14, 2004, at which
time Plaintiff reported that he had had good pain relief. Plaintiff’s leg lengths appeared to be nearly
equal, and there was no pedal edema. Dr. Voss removed Plaintiff’s staples, and gave him the okay
to remain full weight bearing. (R.p. 298). When Plaintiff was seen again on January 11, 2005, it was
noted that he had been full weight bearing and had driven himself to the clinic. On examination
Plaintiff’s leg lengths appeared equal, there was no pedal edema, and his hip range of motion was
“spectacular”. (R.p. 297). On February 18, 2005, Plaintiff reported that he was “delighted with the
progress that his right hip [had] made”. While Plaintiff did report some symptoms in his left hip,
they were not enough to warrant any concern. (R.p. 296).
Over the next few months Plaintiff had increasing problems with his left hip, and by
May 4, 2005 his left hip was hurting as much as his right hip had prior to his surgery. Dr. Voss noted
that Plaintiff’s right hip was “doing extremely well”, and he scheduled Plaintiff for a left total hip
arthroplasty, which was performed on May 19, 2005. (R.pp. 235-236, 294). Plaintiff was thereafter
discharged from the hospital on May 21, 2005, at which time he was ambulating well (over 300 feet
with a rolling walker), and was able to negotiate stairs without difficulty. Plaintiff was instructed to
continue with his physical therapy. (R.pp. 233-234). When Plaintiff was seen for a follow-up on
June 1, 2005, his pain had diminished, he was walking well, and his mobility was “great”. It was
noted that Plaintiff was able to walk without assistive devices, and that overall he was doing very
well. (R.p. 293).
However, Plaintiff subsequently experienced “loosening of his cup”, and a revision
5

of his left total hip arthroplasty was performed on July 12, 2005. (R.pp. 250-251). This procedure
was successful, and by July 25, 2005, Plaintiff was doing well, was performing physical therapy as
directed, and was off all of his narcotic pain medications. On examination Plaintiff had good hip
range of motion, his distal sensation and capillary refill were normal, and there was no focal edema,
erythema or induration. Plaintiff was advised that he could weight bear as tolerated, and that he could
discontinue with his physical therapy. (R.p.292).
On August 29, 2005 Plaintiff was found to be in no acute distress with a slightly
antalgic gait favoring his left lower extremity. Plaintiff had no pain with range of motion and was
able to touch his fingertips to the floor without any difficulty. (R.p. 290). By September 13, 2005,
Plaintiff was doing well, had no pain, and his gait was improving. (R.p. 289). On October 14, 2005,
Plaintiff’s abduction strength was somewhat weak and Plaintiff “waddle[d]” in terms of his gait, but
Dr. Voss noted that Plaintiff was doing “quite well” with an “excellent range of motion”. However,
Dr. Voss did not believe Plaintiff could keep his old job (which required heavy lifting), because he
did not want Plaintiff lifting heavier than thirty pounds or walking more than a mile or two at work.
(R.p. 288). See Craig v. Chater, 76 F.3d 589-590 (4th Cir. 1996)[noting importance of treating
physician opinion].
On November 9, 2005, state agency physician Dr. Charles Jones reviewed Plaintiff’s
medical records and completed a Physical Residual Functional Capacity Assessment in which he
opined that Plaintiff had the ability to perform light work4 with the ability to stand and/or walk for

4

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. 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
(continued...)
6

a total of at least two hours in an eight hour work day, sit with normal breaks for a total of about six
hours in an eight hour work day, with a limitation in his ability to push and/or pull in his lower
extremities. He further opined that Plaintiff would never be able to climb ladders/ropes/scaffolds or
balance, but could occasionally climb ramps/stairs, stoop, kneel, crouch and crawl. Dr. Jones
assessed no other functional limitations. (R.pp. 305-312). See Smith v. Schweiker, 795 F.2d 343,
345 (4th Cir. 1986) [opinion of non-examining physicians can constitute substantial evidence to
support the decision of the Commissioner].
On January 11, 2006 Plaintiff went to the hospital emergency room complaining of
left hip pain. Plaintiff stated that he had been having to step differently and step up to get some
machinery while at work, which had caused pain in his left hip. On examination Plaintiff exhibited
pain along the left greater trochanter area, but the attending physician noted that Plaintiff “really [did]
not have any groin pain consistent with the hip joint area itself”. Plaintiff was able to flex his hip
about ninety degrees and externally rotate somewhat, his neurovascular examination appeared to be
intact, his motor strength was 5/5 (full), and he had good equal and grip strength. Cf. Gaskin v.
Commissioner of Social Security, 280 Fed.Appx. 472, 477 (6th Cir. 2008)[Finding that evidence of
no muscle atrophy and that claimant “possesses normal strength” contradicted Plaintiff’s claims of
disabling physical impairment]. X-rays were taken which revealed that Plaintiff’s bilateral prostheses
appeared be “seating well”. Plaintiff was diagnosed with left hip pain secondary to over use and was
discharged on pain medication. (R.pp. 318-319).
Plaintiff subsequently told Dr. Voss that he was having to lift heavy boxes of nails up

4

(...continued)
time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b) (2005).
7

to fifty pounds regularly at work, and also needed to go up a high step. On examination Plaintiff’s
leg lengths were equal, his hip range of motion was good, and his abductor strength was good,
although Plaintiff was experiencing some pain in his buttock. Dr. Voss advised him that he needed
to get a “much more sedentary job”. (R.p. 326). Craig, 76 F.3d at 590 [noting importance of treating
physician opinion].
On March 6, 2006, Plaintiff self referred himself to Dr. Kurt Blassner for a second
opinion regarding his left hip pain. Plaintiff related his medical history, and advised that with respect
to his right total hip arthroplasty he was “quite happy with this hip”. With respect to his left hip
arthroplasty, Plaintiff stated that he had had about two months worth of history of wound healing
difficulties, although it was noted that Plaintiff was not using any anti-inflammatories. On
examination Plaintiff exhibited discomfort on palpation around the scar and over the abductor
musculature of the left hip, although he had excellent motion with the flexion and performed
abductions and flexion at lesser degrees with minimal discomfort, weaker on the left when compared
to the right. Films showed no evidence of loosening or failure of surgical components on either the
right or left hip. Dr. Blassner opined that he saw no evidence of loosening, failure, or inappropriately
placed components, and stated that the majority of Plaintiff’s difficulties were “most likely related
to abductor musculature inflamation and issues.” Due to Plaintiff’s complaints, Dr. Blassner further
thought it would be reasonable to aspirate Plaintiff’s hip to evaluate for possible infection. (R.pp.
328-329). Richardson v. Perales, 402 U.S. 389, 408 (1971) [assessment of examining, non-treating
physicians may constitute substantial evidence in support of a finding of non-disability].
On March 28, 2006, state agency physician Dr. Robert Kukla examined Plaintiff’s
medical records and completed a Physical Residual Functional Capacity Assessment in which he
8

opined that Plaintiff had the RFC for light work with the ability to stand and/or walk about six hours
in an eight hour work day, sit with normal breaks for a total of about six hours in an eight hour work
day, with limited ability to push and/or pull in his lower extremities. Dr. Kukla further opined that
Plaintiff could occasionally perform all postural activities, with no other limitations in his functional
capacity. (R.pp. 331-338). Smith, 795 F.2d at 345 [opinion of non-examining physicians can
constitute substantial evidence to support the decision of the Commissioner].
On April 26, 2006, Plaintiff presented to Dr. William Korman (Plaintiff’s family
physician) for complaints of low back pain. Dr. Korman prescribed some medication and referred
Plaintiff to physical therapy. (R.p. 415). Plaintiff was also seen by Dr. Korman on March 10, 2006
for complaints of left hip pain. Dr. Korman again prescribed Plaintiff some pain medication and
noted that he would be referred to an orthopedic specialist. (R.p. 416). On July 18, 2007, Dr.
Korman referred Plaintiff for a functional capacity study at Plaintiff’s request. (R.p. 409).
Physical therapist Debra Iacono thereafter performed a Functional Capacity Evaluation
on August 6, 2007. (R.pp. 350-357). After performing her evaluation, PT Iacono concluded that
Plaintiff had a current work capacity “characterized by the Sedentary Light Physical Demand Level
for work above the waist and the medium Light Physical Demand Level for work below the waist”.
She further opined that Plaintiff would not be able to return to his current job, and recommended
vocational counseling and possible retraining. (R.p. 350).
Plaintiff was seen for the first time by Dr. Suarez on October 5, 2007, three years after
he contends his hip condition had become disabling. Plaintiff reported his chief complaint as being
bilateral hip pain, with pain and discomfort in both hips, the left worse than the right. However, the
only medication Plaintiff reported taking was Aleve, an over the counter pain medication. Dr. Suarez
9

had some radiographic studies performed which showed Plaintiff’s surgical prostheses to be in good
position. Dr. Suarez noted that “[a]ll looks well”, and opined that he did not “see anything that would
indicate any reason for [Plaintiff] having pain”. On examination Plaintiff exhibited a coxalgic gait
bilaterally, but both hips rotated “pretty freely” without pain. Dr. Suarez also did not find any
particular tenderness to palpation when palpating over Plaintiff’s greater trochanters. Dr. Suarez
assessed Plaintiff with apparent bilateral hip pain of an uncertain etiology. (R.pp. 374-375).
Some diagnostics studies were also performed, which showed no evidence of any
infection. The radiologist thought that the results of these studies were “unremarkable”, and Dr.
Suarez opined that he “really did not see anything obvious on the x-ray, bone scan or the lab work.”
Dr. Suarez discussed treatment options with the Plaintiff, and noted that Plaintiff did “not feel that
he is hurting enough to warrant any further surgery right now, which I did not think he did.” Plaintiff
was just to “live with it the best way [he] can . . . .” (R.p. 372).
Plaintiff returned to see Dr. Suarez on March 19, 2008, again complaining of bilateral
hip pain, worse on the left. Plaintiff and his wife both related a history of Plaintiff experiencing
significant pain, which Dr. Suarez also observed in the office. On physical examination, hip rotation
was noted to be “a little uncomfortable but not terribly painful”. Dr. Suarez observed that he was
“not sure what is happening”, but speculated that it “may be loosening [of Plaintiff’s hardware from
his surgery], although that [was] pure speculation.” Dr. Suarez indicated that he would have some
additional scans done, and “we will see if we see any other objective evidence of any problems with
his prosthesis.” (R.p. 371). However, when a bone scan was performed on March 27, 2008, it
revealed no evidence of loosening, and on April 3, 2008, Dr. Suarez stated that Plaintiff’s continued
complaints of pain, particularly in the left hip, was “an enigma”. (R.pp. 368, 370). Dr. Suarez also
10

performed an aspiration, which was normal. (R.p. 367).
Plaintiff returned to see Dr. Suarez on May 8, 2008, complaining of terrible pain in
his hip after having to sit in a metal chair for one of his kid’s baseball games. Dr. Suarez noted that
“so far I have been unable to come up with anything as far as any reason for his pain”, noting that
Plaintiff had received the “same kind of opinion” from the Mayo Clinic (Dr. Blassner). Dr. Suarez
stated “I cannot explain it”, and indicated that he would seek a neurologic opinion for a possible
explanation for Plaintiff’s complaints of pain. (R.p. 366).
Plaintiff was then examined by neurologist Dr. Julian Adams on May 14, 2008.
Plaintiff told Dr. Adams that his initial orthopedic surgeon claimed that his hip problems were due
to “beer drinking”, but advised that “at the present time his beer drinking has been greatly reduced
for he claims that at one time he could hold as many as a dozen a day.” Plaintiff complained of pain
primarily confined to the left hip area, with milder pain in the right hip area which could be tolerated.
Plaintiff denied any sensory loss in his distal lower extremities or in his trunk. From a neurological
standpoint, Plaintiff’s examination was normal, and Dr. Adams noted that “[o]ften times people who
have a reduced alcohol intake as he has have accompanying pain syndrome associated with conscious
or subconscious drug seeking behavior”. (R.pp. 386-387). Dr. Adams did order some EMG and
nerve conduction studies, the results of which were normal. (R.p. 388).
On June 3, 2008, Dr. Suarez completed a Medical Source Statement of Ability to do
Work Related Activities (physical), in which he opined that Plaintiff had the lifting capacity for
sedentary work with the ability to stand and/or walk for less than two hours in an eight hour workday,
and sit for less than about six hours in an eight hour work day, with a limited ability to push and/or
pull in his lower extremities. Dr. Suarez further opined that Plaintiff could never perform any
11

postural activities, that he could never reach and only occasionally handle, finger or feel, and that he
would require complete freedom to rest frequently (defined as at least two to three hours a day).
Plaintiff also had only a limited ability to tolerate temperature extremes, vibrations,
humidity/wetness, and hazards such as machinery and heights. Dr. Suarez concluded by opining that
Plaintiff had not been able to work on a full time basis since his second left hip surgery on July 12,
2005. (R.pp. 401-405).
On June 5, 2008, Dr. Korman opined that he believed Plaintiff’s ability to work was
clearly impaired as a result of his hip pain and that he believed that it was reasonable that Plaintiff
seek “some disability status.” (R.p. 407).
II.
(RFC Determination)
The ALJ reviewed this medical record and the subjective testimony from the hearing
and concluded that Plaintiff retained the RFC for sedentary work with the ability to stand and/or walk
up to two hours in an eight hour work day; with only occasional stooping, twisting, crouching,
kneeling, and climbing of ramps and stairs; but no crawling or balancing; no climbing of ladders and
scaffolds; and with no use of foot pedals or other controls with both lower extremities. (R.p. 13).
These findings are supported by substantial evidence in the case record. Laws, 368 F.2d 640
[Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a
particular conclusion”].
In reaching his decision, the ALJ noted Dr. Voss’ medical records reflecting
successful right total hip replacement surgery and that following this surgery any residual left hip
symptoms were not enough to warrant concern; and Dr. Voss’ records with respect to Plaintiff
12

subsequent left hip surgery, following which Dr. Voss had recommended work restrictions of no
lifting over thirty pounds and no walking much more than a mile or two at work. (R.pp. 288, 296).
The ALJ also the noted results of Plaintiff’s physical examinations, where he was found to have full
motor strength and intact neurovascular function, and Dr. Voss’ opinion that Plaintiff needed to work
at a more sedentary job. See (R.pp. 15-16, 288, 318-319, 326). The ALJ determined that the overall
weight of the evidence supported Dr. Voss’ conclusions, and he gave Dr. Voss’ opinion significant
weight. (R.pp. 16); see Craig, 76 F.3d at 589-590 [noting importance of treating physician opinion];
see also Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990) [Courts should properly focus not
on a claimant’s diagnosis, but on the claimant’s actual functional limitations]; Gross v. Heckler, 785
F.2d 1163, 1166 (4th Cir. 1986)[the mere presence of impairments does not automatically entitle a
claimant to disability benefits, there must be a showing of related functional loss]
The ALJ further noted the findings of Dr. Blassner’s March 2006 evaluation, where
he found that Plaintiff had excellent range of motion with minimal discomfort, with weak hip flexion
and abductors on the left when compared to the right, Dr. Korman’s records showing Plaintiff
received only conservative treatment for his complaints, the results of Plaintiff’s functional capacity
evaluation and the records from Dr. Adams, as well as Plaintiff’s own reported activities of driving,
taking the children to school daily, showing and bathing without assistance, dressing mostly
independently with some assistance from his wife when putting pant on, occasionally cooking for his
family, occasionally doing the laundry, and do some shopping. (R.pp. 14, 17, 28-31). See Hunter
v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) [assessment of an examining physician may properly be
given significant weight]; Osgar v. Barnhart, No. 02-2552, 2004 WL 3751471 at *5 (D.S.C. Mar. 29,
2004), aff’d; Knox v. Astrue, 327 Fed.Appx. 652, 657 (7th Cir. 2009)[“[T]he expression of a
13

claimant’s RFC need not be articulated function-by-function; a narrative discussion of a claimant’s
symptoms and medical source opinions is sufficient”], citing Bayliss v. Barnhart, 427 F.3d 1211,
1217 (9th Cir. 2005); Cruse v. Bowen, 867 F.2d 1183, 1186 (8`h Cir. 1989) ["The mere fact that
working may cause pain or discomfort does not mandate a finding of disability]; Robinson v.
Sullivan, 956 F.2d 836, 840 (8th Cir. 1992) [conservative treatment not consistent with allegations
of disability]; Gaskin, 280 Fed.Appx. at 477 [Finding that evidence of no muscle atrophy and that
claimant “possesses normal strength” contradicted Plaintiff’s claims of disabling physical
impairment]; Haynes v. Astrue, No. 09-484, 2010 WL 3377715 at * 3 (M.D.Ala. Aug. 25,
2010)[“Muscle atrophy is an objective medical indication of pain and lack thereof in [Plaintiff]
militates against the conclusion that she suffers from pain which precludes her from substantial
gainful activity.”]. Finally, the ALJ also gave the state agency medical consultants’ conclusions that
Plaintiff is capable of sustained work activities significant weight, finding that these conclusions were
supported by and consistent with the objective medical evidence. (R.p. 14). Smith, 795 F.2d at 345
[opinion of non-examining physicians can constitute substantial evidence to support the decision of
the Commissioner]; Marquez v. Astrue, No. 08-206, 2009 WL 3063106 at * 4 (C.D.Cal. Sept. 21,
2006)[No error where ALJ’s RFC finding was even more restrictive than the exertional levels
suggested by the State Agency examiner].
After a review of record and evidence in this case, the Court can find no reversible
error in the ALJ’s treatment of the record evidence in this case when reaching his decision on the
extent of Plaintiff’s pain and limitations. See Hays, 907 F.2d at 1456 [it is the responsibility of the
ALJ to weigh the evidence and resolve conflicts in that evidence]; Thomas v. Celebrezze, 331 F.2d
541, 543 (4th Cir. 1964) [court scrutinizes the record as a whole to determine whether the conclusions
14

reached are rational]; Bowen, 482 U.S. at 146, n. 5 [Plaintiff has the burden to show that she has a
disabling impairment]. The ALJ thoroughly reviewed the objective medical evidence, compared it
with the Plaintiff’s subjective testimony as to the extent of his pain and limitations, and found that
Plaintiff’s claims concerning the intensity, persistence, or limiting effects of his symptoms were not
credible to the extent they were inconsistent with his findings. While Plaintiff argues there is
evidence in the record from which more severe findings could have been inferred, the ALJ was not
required to accept only the more severe diagnoses of Plaintiff’s condition. Lee v. Sullivan, 945 F.2d
687, 692 (4th Cir. 1991)[ALJ not required to include limitations or restrictions in his decision that
he finds are not supported by the record]; Clarke v. Bowen, 843 F.2d 271, 272-273 (8th Cir.
1988)[“The substantial evidence standard presupposes . . . a zone of choice within which the decision
makers can go either way without interference by the Courts”]. Rather, the ALJ’s role is to review
all of the evidence and consider that evidence in making his decision. Mickles v. Shalala, 29 F.3d
918, 925-926 (4th Cir. 1994) [In assessing the credibility of the severity of reported subjective
complaints, consideration must be given to the entire record, including the objective and subjective
evidence]. The ALJ’ decision reflects that that is what he did in this case. Hays, 907 F.2d at 1456
[it is the responsibility of the ALJ to weigh the evidence and resolve conflicts in that evidence].
Plaintiff’s main complaint with the ALJ’s decision is that the ALJ made no specific
determination with respect to Plaintiff’s ability to sit for an extended period of time. Plaintiff notes
that SSR 83-10 states that work at the sedentary level of exertion should generally have periods of
standing or walking totaling no more than about two hours in an eight hour work day, with sitting
generally totally approximately six hours in an eight hour work day, and that the ALJ’s RFC finding
does not address any limitations in Plaintiff’s ability to sit, nor did the ALJ’s hypothetical to the
15

Vocational Expert address this issue. See (R.pp. 13, 62). The Commissioner does not dispute that
no specific reference was made to Plaintiff’s ability to sit in the ALJ’s RFC determination, but argues
that Plaintiff’s contention that the decision should be reversed for this reason is without merit, as the
ability of Plaintiff to sit for about six hours in an eight hour work period is implicit in the ALJ’s
decision. The Court agrees.
The exertional categories of work are defined in part by the amount of time the
claimant can walk/stand and sit during an eight hour workday, with sedentary work being classified
as requiring periods of standing or walking of generally no more than two hours in an eight hour work
day, and sitting for a total of approximately six hours in an eight hour work day. 20 C.F.R. §
404.1567; see also SSR 83-10. Therefore, by finding that Plaintiff had the RFC for sedentary work
with the ability to stand and/or walk up to two hours in an eight hour work day, the ALJ implicitly
found that Plaintiff was able to sit for the remaining portion of the work day. See Depover v.
Barnhardt, 349 F.3d 563, 567-568 (8th Cir. 2003)[Denying remand after finding substantial evidence
for ALJ’s implicit findings of no limitation on the claimant’s ability to sit, stand, or walk]. To the
extent the ALJ should have stated a specific sitting period as part of his RFC finding, his failure to
do so in this case was at most harmless error. See Shinseki v. Sanders, 129 S.C. 1696, 1706
(2009)[Party attacking the agency’s determination normally has the burden of showing that an error
warrants reversal of the decision]; United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir.
1995)[Error is harmless unless it leaves one in grave doubt as to whether it had a substantial influence
on the outcome of the case]; Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1999)[“No principle of
administrative law or common sense requires us to remand a case in quest of a perfect opinion unless
there is reason to believe that the remand might lead to a different result”].
16

Therefore, Plaintiff’s argument that the ALJ committed reversible error in reaching
his RFC finding in this case is without merit. See Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir.
1987) [an arguable deficiency in opinion writing is not cause for reversing the Commissioner];
Mickles, 29 F.3d at 921 [Affirming denial of benefits where ALJ would have reached the same result
notwithstanding his error]; Jolley v. Weinberger, 537 F.2d 1179, 1181 (4th Cir. 1976) [finding that
the objective medical evidence, as opposed to the claimant’s subjective complaints, supported an
inference that he was not disabled]; Thomas, 331 F.2d at 543 [court scrutinizes the record as a whole
to determine whether the conclusions reached are rational].
III.
(Treating Physician Opinion)
Plaintiff also argues that the ALJ committed reversible error by failing to follow the
opinion of Plaintiff’s treating physician Dr. Suarez that Plaintiff was limited to sitting for less than
six hours in an eight hour day and other findings. See (R.pp. 401-405). A review of the decision
shows that the ALJ discussed Dr. Suarez’s medical records and findings, including his conclusion
that Plaintiff had not been able to work on a full time basis since July 12, 2005,5 but gave Dr.
Suarez’s conclusions only partial weight. Specifically, the ALJ determined that the overall evidence
generally supported Dr. Suarez’s conclusions about the restrictions on Plaintiff’s ability to lift, carry,
stand and walk, but that otherwise his conclusions were not consistent with his own treatment notes,
the treatment notes from other physicians,6 or the diagnostic testing including x-rays, all as discussed

5

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Notably, Plaintiff’s claim is that he has been disabled and unable to work since October 5, 2004.

In making this finding, the ALJ also discounted Dr. Korman’s statement that Plaintiff should seek
(continued...)
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throughout his decision. (R.pp. 17-18). The Court finds no reversible error in this conclusion. Cf.
(R.pp. 288-290, 300-301, 305-312, 318-319, 326, 328-329, 331-338, 366, 368, 372, 374-375, 386388); see Craig, 76 F.3d at 589-590 [rejection of treating physician’s opinion justified where treating
physician’s opinion was inconsistent with substantial evidence of record].
Notwithstanding the severity of Plaintiff’s condition as opined to by Dr. Suarez in
June 2008, the ALJ noted and discussed the contrary medical evidence in the record, including that
Plaintiff generally only requires mild prescription medication or over the counter medications, that
diagnostic testing has consistently shown that Plaintiff’s hip prostheses are intact and without
complications, and other minimal objective findings (including by Dr. Suaraz) in discounting Dr.
Suarez’s conclusions. See Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003)[Evidence that a
claimant is exaggerating symptoms can be considered as part of the evaluation of Plaintiff’s
subjective complaints]; Lee, 945 F.2d at 692 [ALJ not required to include limitations or restrictions
in his decision that he finds are not supported by the record]; Jolley, 537 F.2d at 1181 [finding that
the objective medical evidence, as opposed to the claimant’s subjective complaints, supported an
inference that he was not disabled].
Indeed, it is readily apparent that Dr. Suarez’s opinion of Plaintiff’s degree of
impairment as reflected in his Medical Source Statement of June 3, 2008 is based on Plaintiff’s own
subjective reports of the seriousness of his condition, since Dr. Suarez’s own records fail to
substantiate a basis for these symptoms and Dr. Suarez himself stated that he did not “see anything
that would indicate any reason for [Plaintiff] having pain”. Cf. (R.pp. 366-368, 370-372, 374-375,

6

(...continued)
some kind of disability status. (R.p. 17).
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401-405); see Johnson v. Barnhart, 434 F.3d 650, 657 (4th Cir. 2005) [ALJ properly rejected
physician’s opinion that was based on the claimant’s own subjective complaints]; cf. Craig, 76 F.3d
at 590, n. 2 [“There is nothing objective about a doctor saying, without more, ‘I observed my patient
telling me she was in pain’”]; Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) [ALJ may assign
lesser weight to the opinion of a treating physician that was based largely upon a claimant’s selfreported symptoms].
After review of the record and evidence in this case, the Court can find no reversible
error in the ALJ’s treatment of Dr. Suarez’s opinion as to the extent of Plaintiff’s pain and
limitations. See Hays, 907 F.2d at 1456 [It is the responsibility of the ALJ to weigh the evidence and
resolve conflicts in that evidence]; see also Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir.
2002)[“When a treating physician’s opinions are inconsistent or contrary to the medical evidence as
a whole, they are entitled to less weight” (citations omitted)]; Castellano v. Secretary of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) [physician opinion that a claimant is totally
disabled “is not dispositive because final responsibility for determining the ultimate issue of disability
is reserved to the [Commissioner]”]; 20 C.F.R. § 404.1527(e) [”a statement that you are ‘disabled’
or ‘unable to work’ does not mean that we will determine that you are disabled”]. Therefore, this
argument is without merit.
Conclusion
Substantial evidence is defined as " ... evidence which a reasoning mind would accept
as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
1984). As previously noted, if the record contains substantial evidence to support the decision (i.e.,
if there is sufficient evidence to justify a refusal to direct a verdict were the case before a jury), this
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Court is required to uphold the decision, even should the Court disagree with the decision. Blalock,
483 F.2d at 775.
Under this standard, the record contains substantial evidence to support the conclusion
of the Commissioner that the Plaintiff was not disabled within the meaning of the Social Security Act
during the relevant time period. Therefore, it is Ordered that the decision of the Commissioner is
affirmed.
IT IS SO ORDERED.

______________________________
Bristow Marchant
United States Magistrate Judge
June 11, 2012
Charleston, South Carolina

The parties are hereby notified that any right to appeal this Order is governed by Rules 3 and
4 of the Federal Rules of Appellate Procedure

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