Slowik v. Commissioner of Social Security

Filing 22

ORDER denying 16 Motion by plaintiff for Summary Judgment; granting 21 Motion by defendant for Summary Judgment. Signed by Magistrate Judge Beth P. Gesner on 8/20/12. (cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF

101 WEST LOMBARD STREET

BETH P. GESNER

BALTIMORE, MARYLAND 21201

UNITED STATES MAGISTRATE JUDGE

[phone]

August 20, 2012
Brian Douglas Bennett
Law Offices of Terziu & Bennett
2211 Eastern Boulevard
Baltimore, MD 21220

Alex S. Gordon, Assistant United States Attorney
Office of the United States Attorney
36 S. Charles Street, Fourth Floor
Baltimore, MD 21201

Subject: Timothy Francis Slowik v. Commissioner of Social Security
Civil Action No.: BPG-11-1698
Dear Counsel:
Pending before this court, by the parties’ consent (ECF Nos. 8, 10), are CrossMotions for Summary Judgment (ECF Nos. 16, 21) concerning the Commissioner’s
decision denying plaintiff Timothy Francis Slowik’s claim for Disability Insurance
Benefits (“DIB”) and Supplemental Social Security Income Benefits (“SSI”). The
undersigned must uphold the Commissioner’s decision if it is supported by substantial
evidence and if proper legal standards were employed. 42 U.S.C. §§ 405(g), 1383(c)(3);
see Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). No hearing is deemed necessary.
Loc. R. 105.6. For the reasons noted below, defendant’s Motion (ECF No. 21) is
GRANTED and plaintiff’s Motion (ECF No. 16) is DENIED.
I.

Background

On October 23, 2007, plaintiff filed his claim for DIB and SSI, alleging disability due to
hypertension, obesity, anxiety and depression, mercury poisoning, carpal tunnel syndrome
("CTS"), and back pain. (R. at 16.) His claim was denied initially, and upon reconsideration.
(R. at 83-95.) After a hearing before an Administrative Law Judge ("ALJ"), the ALJ issued a
decision denying plaintiff's claims. (R. at 11-24.) The Appeals Council then denied plaintiff's
request for review, making the ALJ's decision final and reviewable. (R. at 4-10.)
The ALJ found that plaintiff had not engaged in substantial gainful activity since the
alleged onset date of January 1, 2005, and that he was insured during the pertinent time period.
Further, the ALJ determined that plaintiff had a severe combination of impairments, including
CTS, cervical radiculopathy with back pain, hypertension, obesity, and generalized anxiety
disorder. (R. at 16.) The ALJ found that plaintiff's depression and mercury poisoning were not
severe, however, because they did not cause limitations relevant to his work. The plaintiff's
impairments, according to the ALJ, did not meet or equal any Listing. (R. at 16-18.) The ALJ
determined that plaintiff retained the residual functional capacity ("RFC") to perform a range of
light exertional work with several limitations stemming from his impairments. (R. at 19.) Based
on those findings, the record, and the testimony of the vocational expert ("VE"), the ALJ found

Timothy Francis Slowik v. Commissioner of Social Security
Civil Action No.: BPG-11-1698
August 20, 2012
Page 2
that plaintiff could not perform his past relevant work as an auto mechanic, but that he could
perform other jobs available in the national economy. (R. at 22-23.) The ALJ, accordingly,
found that plaintiff was not disabled. (R. at 22-23.)
II.

Discussion

Plaintiff challenges the ALJ's RFC finding and decision on two very limited grounds.
First, plaintiff claims the ALJ erred by not giving controlling weight under the treating physician
rule to Susan Sullivan, a Certified Registered Nurse Practitioner. (ECF No. 16 at 6-7.) Second,
plaintiff claims the ALJ erred by relying on a hypothetical question he posed to the Vocational
Expert ("VE") that did not include all of plaintiff's limitations. (Id. at 7-10.) On this second
argument, plaintiff appears to argue that since the ALJ asked the VE a hypothetical that included
additional limitations, which the ALJ rejected, that the ALJ was somehow obligated to accept the
more limiting hypothetical.1
Plaintiff's first argument must fail because Ms. Sullivan is not an acceptable medical
source under the regulations and, therefore, the ALJ was not required to give her opinion
controlling weight under the treating physician rule. In determining whether a claimant is
disabled, the regulations require that the agency evaluate every medical opinion it receives in a
claimant's case. 20 C.F.R. § 404.1526(c). The regulations define medical opinions as
"statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s).” Id. §§ 404.1527(a)(2),
416.927(a)(2). Acceptable medical sources include licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists. See id. §§ 404.1513(a), 416.913(a). Nurse practitioners are not acceptable
medical sources; rather, they are "other sources." Id. § 404.1513(d). Accordingly, their opinions
are not entitled to controlling weight. Richardson v. Astrue, No. SKG-10-614, 2011 WL
3880406, at *8 (D. Md. Aug. 31, 2011). The agency has recognized, however, that opinions
from medical sources like nurse practitioners "are important and should be evaluated on key
issues such as severity and functional effects, along with the other relevant evidence in the file."
SSR 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006).
Here, the ALJ clearly performed the required analysis and sufficiently explained the
weight that he gave to Ms. Sullivan's opinion. See id. The ALJ noted that Ms. Sullivan's
opinion that plaintiff could perform less than a full range of sedentary work deserved little
weight because her "recommendations were not explained or justified and were not otherwise
1

Plaintiff states that "he does not take issue with any other finding by the ALJ" except
that plaintiff complains, without argument or explanation, that the ALJ did not consider a later
onset date for plaintiff. (ECF No. 16 at 5-6.) This argument has no merit, however, because the
ALJ found that the plaintiff was not disabled at any time.

Timothy Francis Slowik v. Commissioner of Social Security
Civil Action No.: BPG-11-1698
August 20, 2012
Page 3
consistent with the overall medical evidence of record, or the entire evidence of record as a
whole." (R. at 22.) A review of Ms. Sullivan's opinion supports this conclusion. Ms. Sullivan
did not perform any diagnostic tests or treatment on plaintiff. (R. at 226.) She offers no
explanation for the suggested limitations on her check-box form opinion (R. at 226-29), which
opinions this court has recognized are afforded less weight than opinions that contain
explanations of their findings. See Carter v. Astrue, No. CBD-10-1882, 2011 WL 3273060, at
*7-8 (D. Md. July 27, 2011) (citing authority); Nazelrod v. Astrue, No. BPG-09-0636, 2010 WL
3038093, at *5 (D. Md. Aug. 2, 2010) (citing authority). Further, Ms. Sullivan, at the time she
issued her form opinion, had treated the plaintiff only once and had no history of treatment of the
plaintiff. (R. at 226.) It should also be noted that Ms. Sullivan noted that plaintiff's current
condition would not exist in the absence of substance abuse (R. at 228) which, as defendant
notes, further undercuts Ms. Sullivan’s unsupported findings of disability. (ECF No. 21-1 at 12.)
Finally, there were at least three doctors who were acceptable medical sources and examined
plaintiff or reviewed his records and noted that plaintiff's limitations were not as extensive as
those noted by Ms. Sullivan. (R. at 210-11) (Dr. Rahnama's October 9, 2007 report noting severe
substance abuse but no major physical complaints); (R. at 232-35) (Dr. Young's January 28,
2008 consultative examination which ALJ gave great weight, R. at 22); (R. at 238-45) (Dr.
Serpick's February 11, 2008 Physical Residual Functional Capacity Assessment that plaintiff
could perform a range of light work). For the foregoing reasons, the ALJ did not err by giving
little weight to the opinion of plaintiff's nurse practitioner, Ms. Sullivan.
Plaintiff's second argument similarly fails. Plaintiff appears to suggest that the ALJ
should have adopted all of the VE's answers to the ALJ's hypothetical questions, even when
those questions concerned limitations that were not included in plaintiff's RFC and were not
supported by the medical evidence. (ECF No. 16 at 7-10.) Plaintiff does not discuss any
medical evidence supporting his argument but rather, argues that the ALJ should have accepted
certain limitations merely because he asked the VE about those limitations. (Id.) An ALJ may
rely on VE testimony to determine whether a claimant can perform work that exists in the
national economy. 20 C.F.R. §§ 404.1566, 416.966(e). The ALJ has "great latitude in posing
hypothetical questions." France v. Apfel, 87 F. Supp. 2d 484, 490 (D. Md. 2000) (citing
authority). The ALJ, however, need only pose those hypotheticals that are based upon
substantial evidence and accurately reflect a claimant's limitations and may reject VE testimony
that is based on work-related limitations that are not supported by the record. Id.
Although the ALJ here posed several hypothetical questions to the VE, only one of those
questions, the one the ALJ incorporated in his RFC findings, was based on the credible
limitations plaintiff had which were supported by the medical and other evidence in this case.
Specifically, the question the ALJ asked the VE was whether an individual limited to light work
with occasional postural abilities; no ability to climb ladders, ropes, or scaffolding; diminished
sensation in his hands limiting him to no more than frequent fingering or handling; and a
limitation to unskilled, simple, routine work with only occasional interaction with others, could

Timothy Francis Slowik v. Commissioner of Social Security
Civil Action No.: BPG-11-1698
August 20, 2012
Page 4
perform jobs available in the national economy. (R. at 358-59.) This question mirrors the
limitations noted in the RFC found and explained by the ALJ. (R. at 19-22.) The VE offered
three jobs as examples of the type of work a person with these limitations could perform:
security clerk, unskilled machine tender, and folding machine operator. (R. at 359-60.) Plaintiff
has offered no argument, case law citation, or support in the record as to why other limitations
the ALJ asked the VE about were applicable in this case. The mere fact that the ALJ asked a
question does not mean that the ALJ is bound by the limitations in that question. The ALJ is not
required to accept work related limitations that are not supported by the record. Mickles v.
Shalala, 29 F.3d 918, 929 n. 7 (4th Cir. 1994); France, 87 F. Supp. 2d at 490. As detailed in
defendant's Motion (ECF No. 21 at 14-16), there is no support in the record for the additional
limitations offered by plaintiff and the ALJ was not required to include those limitations in his
RFC findings.
III.

Conclusion

In sum, substantial evidence supports the ALJ’s decision in this case. Accordingly,
defendant’s Motion for Summary Judgment (ECF No. 21) is GRANTED and plaintiff’s Motion
for Summary Judgment (ECF No. 16) is DENIED.
Despite the informal nature of this letter, it will constitute an Order of the court and will be
docketed accordingly.
Very truly yours,
/s/
Beth P. Gesner
United States Magistrate Judge