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 the Commissioner’s supplemental filing.
[ECF Nos. 12, 13, 15]. I find that no hearing is necessary.
See Loc. R. 105.6 (D. Md. 2014). 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.
Rawls’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. §
2011, Mr. Rawls protectively filed applications for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). (Tr. 217-29).
His applications were denied initially and on
reconsideration. (Tr. 149-53, 162-68). An Administrative Law
Judge ("ALJ") held a hearing on October 3, 2013, at
which Mr. Rawls was represented by counsel. (Tr. 40-83).
Following the hearing, the ALJ determined that Mr. Rawls was
not disabled within the meaning of the Social Security Act
during the relevant time frame. (Tr. 13-39). The Appeals
Council denied Mr. Rawls’s request for review, (Tr.
1-6), so the ALJ’s decision constitutes the final,
reviewable decision of the Agency.
found that Mr. Rawls suffered from the severe impairments of:
coronary artery disease status post three myocardial
infarctions and five stent placements, lumbar degenerative
disc disease with radiculopathy, chronic obstructive
pulmonary disease, depression, major depression, a bipolar
disorder, a posttraumatic stress disorder, chronic, rule out
intermittent explosive disorder, and rule out anti-social
(Tr. 18). Despite these impairments, the ALJ determined that
Mr. Rawls retained the residual functional capacity
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a), except that the claimant must avoid balancing and
climbing ladders, ropes, scaffolds, ramps, and stairs, must
avoid concentrated exposure to fumes, odors, dust, gases,
environments with poor ventilation, temperature extremes, and
extreme dampness and humidity, is limited to occupations that
do not require exposure to dangerous machinery and
unprotected heights, is limited to simple, routine,
repetitive tasks, not performed in a fast pace production
environment, involving only simple work-related decisions,
and in general, relatively few work place changes, and must
work primarily with objects rather than people and cannot do
jobs requiring teamwork or interaction with the public.
(Tr. 22). After considering the testimony of a vocational
expert ("VE"), the ALJ determined that Mr. Rawls
could perform jobs existing in significant numbers in the
national economy and that, therefore, he was not disabled.
Rawls disagrees. He argues that the ALJ erred in evaluating
and assigning weight to the opinions of two treating medical
sources. That argument lacks merit.
assigned "minimal weight" to the opinions of two
certified nurse practitioners who treated Mr. Rawls. (Tr.
noted that both were treating sources, but further noted that
they were not acceptable medical sources. Id.
Because a CRNP is not an "acceptable medical source,
" he cannot give a "medical opinion" or be
considered a treating source. Social Security Ruling
("SSR") 06-3P. Whether a source is an
"acceptable medical source" or not is a factor that
may be considered in assigning weight to that source’s
opinion. Id. However, the opinion of a
non-acceptable medical source, such as a CRNP, is relevant in
determining the severity of an impairment and its impact on
an individual’s ability to function. Id. SSR
06-3P explains that the same factors that apply to evaluating
the opinions of medical sources apply to evaluating the
opinions of other sources. Id. The ALJ cited a
variety of those factors as reasons to discount both
CRNPs’ evaluations of Mr. Rawls’s physical
capacity. (Tr. 30-31). The ALJ provided an abundance of
support for his assignments of minimal weight, noting that
the CRNPs’ opinions were contradicted by the opinion of
the consultative physician, Dr. Dunmore, and the opinions of
the State agency physicians. Id. The ALJ also noted
that the opinions of the CRNPs were not supported by the
findings that at least one of them made on his own physical
examination of Mr. Rawls, the findings on physical
examination and diagnostic studies by other treating sources,
Mr. Rawls’s activities of daily living, and his failure
to follow medical advice to stop smoking and using alcohol.
(Tr. 30-31). Thus, the ALJ did not simply reject the
CRNPs’ opinions as opinions from non-acceptable
sources, but engaged in an appropriate analysis of the merits
of those opinions in light of the other evidence of record.
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). In light of the substantial
evidence supporting the ALJ’s conclusion here, I
recommend that his opinion be affirmed.
asked the parties to consider whether this case was impacted
by the recent ruling of the United States Court of Appeals
for the Fourth Circuit in Fox v. Colvin, 632
Fed.Appx. 750 (4th Cir. 2015). After reviewing the
Commissioner’s supplemental brief, I am persuaded that
Fox does not require remand of this case, because
the ALJ did not identify any specific physical listings as
potentially applicable to Mr. Rawls’s case. Under
existing Fourth Circuit law, an ALJ only has to identify a
listing and compare the evidence to the listing requirements
where there is ample evidence to suggest that the listing is
met. See Huntington v. Apfel, 101 F.Supp.2d 384, 390
(D. Md. 2000) (citing Cook v. Heckler, 783 F.2d
1168, 1172 (4th Cir. 1986)); Ketcher v. Apfel, 68
F.Supp.2d 629, 645 (D. Md. 1999) (noting that the "duty
of identification of relevant listed impairments and
comparison of symptoms to Listing criteria is only triggered
if there is ample evidence in the record to support a
determination that the claimant’s impairment meets or
equals one of the listed impairments"). While
Fox provided a new standard for the analysis that
must be present in an ALJ’s opinion after a listing has
been identified, it did not alter existing law with respect
to the criteria for identifying a listing in the first
instance. In Mr. Rawls’s case, while the ALJ referred
to potentially applicable categories of listings that he
considered, he did not identify any specific listings
pertaining to physical impairments. (Tr. 19). The ALJ did
identify several listings relating to mental impairments, but
properly applied the special technique to evaluate those
impairments. (Tr. 19-21). Accordingly, Fox provides
no basis for remand.
reasons set forth above, I ...