United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered
the parties' cross-motions for summary judgment and
Plaintiff's response. [ECF Nos. 20, 21, 22]. I find that
no hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). This Court must uphold the decision of the Agency if
it is supported by substantial evidence and if the Agency
employed proper legal standards. 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). For the reasons set forth below, I
recommend that Mr. Johnson's motion be denied, that the
Commissioner's motion be granted, and that the
Commissioner's judgment be affirmed pursuant to sentence
four of 42 U.S.C. § 405(g).
Johnson filed his applications for Disability Insurance
Benefits (“DIB”) on October 17, 2011, alleging
that his disability began on May 18, 2010. (Tr. 146-47). His
application was denied initially on December 20, 2011, and on
reconsideration on October 16, 2012. (Tr. 93-96, 99-100). An
Administrative Law Judge (“ALJ”) held a hearing
on December 12, 2013, at which Mr. Johnson testified and was
represented by counsel. (Tr. 33-73). Following the hearing,
the ALJ determined that Mr. Johnson was not disabled within
the meaning of the Social Security Act during the relevant
time frame. (Tr. 18-32). The Appeals Council denied Mr.
Johnson's request for review, (Tr. 1-6), so the ALJ's
decision constitutes the final, reviewable decision of the
found that Mr. Johnson suffered from the severe impairment of
degenerative disk disease. (Tr. 23). Despite this impairment,
the ALJ determined that Mr. Johnson retained the residual
functional capacity (“RFC”) to:
perform sedentary work as defined in 20 CFR 404.1567(a)
except the claimant must have the option to change positions
at the work station from sitting to standing at will; he is
limited to occasional stooping, twisting, crouching,
kneeling, crawling, balancing and climbing stairs and ramps
and no climbing ladders, ropes or scaffolds.
(Tr. 24). After considering the testimony of a vocational
expert (“VE”), the ALJ determined that Mr.
Johnson could perform work existing in significant numbers in
the national economy and that, therefore, he was not
disabled. (Tr. 28).
Johnson raises three primary arguments on appeal: (1) that
the ALJ lacked sufficient evidence to support her RFC
assessment; (2) that the ALJ assigned insufficient weight to
the opinion of a treating source, Dr. Timothy Witham; and (3)
that the ALJ improperly disregarded the VE's assertion
that Mr. Johnson was ineligible for competitive employment.
Each of Mr. Johnson's arguments lacks merit and is
Mr. Johnson argues that the ALJ erred in her RFC assessment.
Specifically, Mr. Johnson contends that the ALJ improperly
determined that he was able to perform sedentary work. Pl.
Mot. 2-3; Pl. Rep. 1-2. Contrary to Mr. Johnson's
assertion, the ALJ properly determined that Mr. Johnson was
able to perform sedentary work, and supported her conclusions
with substantial evidence. Most significantly, the ALJ noted
that “[Mr. Johnson's] allegations are not supported
by the medical evidence of record.” (Tr. 25). For
example, the ALJ noted that “[t]here is no support for
totally debilitating back pain prior to [Mr. Johnson's]
date last insured, and the FCE supports a conclusion that
[he] was capable of work activity in March 2012, over a year
later.” (Tr. 27). In addition, the ALJ noted that Mr.
Johnson had “no limitations in reaching, handling,
fingering, postural, or other limitations, ” and that
his FCE “specifically states that all of these
activities can be performed without limitations.” (Tr.
26) (internal quotations omitted). Moreover, the ALJ noted
that, “with distraction, during the FCE, [Mr. Johnson]
was able to sit longer than he claimed, and it was noted that
he was able to lift the pellets for the stove, which his wife
stated she now does.” (Tr. 27). Ultimately, the ALJ
“reduced [Mr. Johnson's] functional capacity to
sedentary exertion in consideration of his testimony”
but found “any greater limits as of his date last
insured unsupported.” Id.
this Court's role is not to reweigh the evidence or to
substitute its judgment for that of the ALJ, but simply to
adjudicate whether the ALJ's decision was supported by
substantial evidence. See Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990). Thus, where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls to the
ALJ. See Mastro v. Apfel, 270 F.3d 171, 179 (4th
Cir. 2001) (quoting Walker v. Bowen, 834 F.2d 635,
640 (7th Cir. 1987)). Based on this standard, I find that the
ALJ supported her RFC findings with substantial evidence.
Mr. Johnson argues that the ALJ assigned insufficient weight
to the opinion of the treating neurologist, Dr. Timothy
Witham. Pl. Mot. 3; Pl. Rep. 2. A treating physician's
opinion is given controlling weight when two conditions are
met: 1) it is well-supported by medically acceptable clinical
laboratory diagnostic techniques; and 2) it is consistent
with other substantial evidence in the record. See
Craig, 76 F.3d 585 (4th Cir. 1996); see also 20
C.F.R. § 404.1527(d)(2). However, where a treating
source's opinion is not supported by clinical evidence or
is inconsistent with other substantial evidence, it should be
accorded significantly less weight. Craig, 76 F.3d
at 590. If the ALJ does not give a treating source's
opinion controlling weight, the ALJ will assign weight after
applying several factors, such as, the length and nature of
the treatment relationship, the degree to which the opinion
is supported by the record as a whole, and any other factors
that support or contradict the opinion. 20 C.F.R. §
404.1527(c)(1)-(6). The Commissioner must also consider, and
is entitled to rely on, opinions from non-treating doctors.
See SSR 96-6p, at *3 (“In appropriate
circumstances, opinions from State agency medical and
psychological consultants and other program physicians and
psychologists may be entitled to greater weight than the
opinions of treating or examining sources.”).
instant case, the ALJ assigned the opinion of Dr. Witham
“little weight” because it was not pertinent to
the relevant period and was unsupported by clinical evidence.
(Tr. 27). Notably, Dr. Witham opined that Mr. Johnson
“can stand/walk for less than 2 hours and sit for less
than 6 hours, with never reaching, balancing, crouching,
crawling and stooping.” (Tr. 27, 373-77). The ALJ
found, however, that Dr. Witham's assessment “was
given almost two years post [Mr. Johnson's] DLI, and the
January 2012 and December 2012 MRI examinations show
progression of his degenerative disk disease during this
time.” Id. Therefore, the ALJ determined that
“there [was] no support for Dr. Witham's
limitations at [Mr. Johnson's] date last insured.”
Id. In addition, the ALJ noted that Dr. Witham's
opinion was unsupported by the medical record. Id.
For example, the ALJ noted that “Dr. Witham referenced
[Mr. Johnson's] FCE for many of his limitation[s], but
the FCE does not support such restrictive limitations.”
the ALJ noted that “FCE findings were consistent with
an ability to work and perform activities.” (Tr. 27).
Ultimately, my review of the ALJ's decision is confined
to whether substantial evidence, in the record as it was
reviewed by the ALJ, supports the decision and whether
correct legal standards were applied. See Richardson v.
Perales, 402 U.S. 389, 390, 404 (1971). Even if there is
other evidence that may support Mr. Johnson's position, I
am not permitted to reweigh the evidence or to substitute my
own judgment for that of the ALJ. See Hays, 907 F.2d
at 1456. Applying those standards, I conclude that the
ALJ's assignment of weight was supported by substantial
Mr. Johnson argues that the ALJ erred in disregarding
testimony by the VE that he was not eligible for jobs
existing in the national economy. As an initial matter, an
ALJ is afforded “great latitude in posing hypothetical
questions, ” Koonce v. Apfel, 1999 WL 7864, at
*5 (4th Cir. Jan. 11, 1999), and need only pose those that
are based on substantial evidence and accurately reflect a
claimant's limitations. See Copeland v. Bowen,
861 F.2d 536, 540-41 (9th Cir. 1988). Likewise, a
hypothetical question is unimpeachable if it adequately
reflects the RFC for which the ALJ had sufficient evidence.
See Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir.
case, the ALJ framed a hypothetical based on the RFC. (Tr.
71). In response, the VE stated that Mr. Johnson could
perform several jobs existing in the national economy. (Tr.
28-29, 71). The ALJ then asked a second hypothetical that
questioned whether the VE's testimony changed when,
“due to frequency of breaks, absences and things like
that, [the hypothetical] person is off task for 20 percent of
the time.” (Tr. 71). In response to the second
hypothetical, the VE stated that such a person “would
not be consistent with competitive ...