Johnston v. Astrue
Filing
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RULING granting in part 10 Motion for Judgment on the Pleadings; denying 12 Motion to Affirm the Decision of the Commissioner. The Court Overrules SSA's Objection (Doc. No. 15) and Affirms and Adopts 14 Recommended Ruling.. Signed by Judge Janet C. Hall on 3/31/2014. (Malone, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE EDWARD JOHNSTON
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISIONER,
SOCIAL SECURITY
Defendant.
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CIVIL ACTION NO.
3:13-CV-00073 (JCH)
MARCH 31, 2014
RULING RE: DEFENDANT’S OBJECTION TO MAGISTRATE JUDGE’S
RECOMMENDED RULING (Doc. No. 15)
I.
INTRODUCTION
On March 5, 2014, defendant, Acting Commissioner of Social Security (“SSA”),
filed an objection to Magistrate Judge Holly B. Fitzsimmons’ February 20, 2014
Recommended Ruling. Defendant’s Objection to Magistrate Judge Holly B.
Fitzsimmons’ Recommended Ruling (“Def.’s Obj.”) (Doc. No. 15). The Magistrate
Judge recommended remand of the adverse decision of Administrative Law Judge
James E. Thomas (“ALJ”) on a number of grounds. Recommended Ruling (“Ruling”)
(Doc. No. 14).
SSA requests that the court decline to adopt the Recommended Ruling and
instead affirm the decision of the Commissioner. Id. at 6. Plaintiff George Edward
Johnston submitted a response to SSA’s objection on March 19, 2014. Plaintiff’s
Response to Defendant’s Objections to the Magistrate Judge’s Report and
Recommendation (“Pl.’s Obj.”) (Doc. No. 16).
For the reasons below, SSA’s objection is OVERRULED and the Recommended
Ruling is AFFIRMED and ADOPTED.
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II.
STANDARD OF REVIEW
Under Rule 72(b)(3) of the Federal Rules of Civil Procedure, the court reviews de
novo those parts of a recommended ruling to which a timely objection is made. See
Fed. R. Civ. P. 72(b)(3). Accordingly, the court may adopt, reject, or modify, in whole or
in part, the recommended ruling. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). See
id.; 28 U.S.C. § 636(b)(1).
An objecting party, however, is required to identify the specific portions of the
recommended ruling to which he objects. See Pall Corp. v. Entegria, Inc., 249 F.R.D.
48, 51 (E.D.N.Y. 2008). Where the objecting party simply reiterates her original
argument, the court reviews the Magistrate Judge’s recommended ruling only for clear
error. See id.; Burgos v. Astrue, No. 309-CV-1216VLB, 2010 WL 3829108, at *1 (D.
Conn. Sept. 22, 2010). Ordinarily, even on de novo review of a party's specific
objections, a court will not consider case law, evidence, or arguments that could have
been, but were not, presented to the Magistrate Judge. See J.P.T. Auto., Inc. v. Toyota
Motor Sales, U.S.A., Inc., 659 F. Supp. 2d 350, 353 (E.D.N.Y. 2009) (internal quotation
marks and citation omitted).
In reviewing a final decision by the SSA, the court is limited to determining
whether the SSA’s conclusions are (1) based on legal error or (2) unsupported by
substantial evidence in the record. See Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.
2013). Substantial evidence is more than a “mere scintilla:” it is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). In
applying the substantial evidence standard to the administrative record, “the reviewing
court is required to examine the entire record, including contradictory evidence and
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evidence from which conflicting inferences can be drawn.” Id. The focus of review is on
the administrative ruling by the ALJ. See id. Absent legal error, the court may not
reverse the decision of the SSA if it is supported by substantial evidence. See id.
III.
DISCUSSION
The court assumes familiarity with Judge Fitzsimmons’s Recommended Ruling,
which describes in greater detail the factual and procedural background of this case.
SSA objects to Judge Fitzsimmons’ Recommended Ruling on two grounds.
First, SSA argues that Judge Fitzsimmons erred in finding that the ALJ did not
adequately explain his decision for giving little weight to Johnston’s treating physician’s
opinion. Def.’s Obj. at 1-2. Second, SSA contends that the Recommended Ruling’s
conclusion that the opinions of the State agency physicians were not properly supported
by the record was erroneous. Id. at 4-5.
A.
Treating Physician Opinion
“The opinion of a treating physician on the nature or severity of a claimant’s
impairments is binding if it is supported by medical evidence and not contradicted by
substantial evidence in the record.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).
If a treating physician’s medical opinion is not supported by medical evidence and is
inconsistent with substantial evidence in the record, it will not be given controlling
weight. Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009); 20 C.F.R. §
404.1527(c)(2); id. § 416.927(c)(2). However, even if a treating physician’s opinion is
not controlling, the ALJ must still determine how much weight the opinion will receive.
Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). To make this determination, the
ALJ must consider several factors, including the length of the treatment relationship and
frequency of examination, the amount of medical evidence supporting the opinion, the
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consistency of the opinion with the remaining medical evidence, and whether the
physician is a specialist. Id.; Selian, 708 F.3d at 418; 20 C.F.R. § 404.1527(c)(2)(i)-(ii);
id. § 404.1527 (c)(3)-(c)(6); id. § 416.927(c)(2)(i)-(ii); id.(c)(3)-(c)(6). In according
weight to a treating physician’s opinion, the ALJ must give “good reasons”—i.e.,
reasons supported by evidence in the case record and sufficiently specific to make clear
the weight given and the reasons for that weight—for his decision. SSR 96-2P, 1996
WL 374188, at *5 (July 5, 1996); see also Blakley v. Commissioner of Social Sec., 581
F.3d 399, 406-06 (6th Cir. 2009). “Failure to provide . . . good reasons for not crediting
the opinion of a claimant’s treating physician is a ground for remand.” Burgess, 537
F.3d at 129-30 (internal quotation marks and citations omitted).
SSA argues that the Recommended Ruling was mistaken in holding that the ALJ
failed to consider how much evidence in the record supported the medical opinion of Dr.
Schwarz, Johnston’s treating physician. Def.’s Obj. at 2. SSA asserts that the
Recommended Ruling, in fact, found that the ALJ had considered this factor and that he
had properly determined that the treating physician’s opinion was unsupported by and
inconsistent with the objective medical evidence. Id. at 2-3. In so arguing, SSA
appears to erroneously collapse the two-step analysis of treating physician opinions
outlined in Burgess, Selian, and sections 404.1527(c) and 416.927(c), into one step.
While the Magistrate Judge did find that the ALJ correctly declined to assign
controlling weight to Dr. Schwarz’s opinion because it was not supported by and was
inconsistent with the objective medical evidence in the record, she also determined that
it was not apparent from the ALJ’s decision whether the ALJ, in deciding to give Dr.
Schwarz’s opinion “little weight,” had considered evidence in the record supporting that
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opinion. Ruling at 58, 61-62. This determination by the Magistrate Judge was not error.
In reasoning that Dr. Schwarz’s opinion merited “little weight,” the ALJ recounted only
those aspects of the opinion that were inconsistent with the weight of the objective
medical evidence, Johnston’s treatment history, and Johnston’s testimony. Transcript
of the Administrative Record (“R.”) at 33. The ALJ’s decision, as the Recommended
Ruling notes, neglected to acknowledge objective medical evidence in the record that
did support Dr. Schwarz’s opinion. Ruling at 62. Failing to do so necessarily means
that the ALJ’s analysis of how much weight to ascribe to Dr. Schwarz’s opinion was
lacking.
SSA also claims that Judge Fitzsimmons erred in finding that the ALJ, when
weighing Dr. Schwarz’s opinion, had not considered the length and frequency of
Johnston’s treatment relationship with Dr. Schwarz. Def.’s Obj. at 2. SSA insists that
ALJ”s acknowledgment of Dr. Schwarz’s “significant history” with Johnston, as well as
its characterization of Dr. Schwarz as a “treating physician,” reveals that the ALJ did
consider this factor. Id.
This court disagrees. The ALJ’s decision does not specifically observe that Dr.
Schwarz and Johnston had a “significant” treatment history; by the court’s reading, the
decision’s reference to a “significant history” is unrelated to its account of Dr. Schwarz’s
treatment of Johnston:
The medical evidence of record does contain a significant history of
subjective complaints of back pain, along with clinical signs and findings
from . . . Alan Schwarz, M.D. indicating pain and tenderness in the
claimant’s lower back and extremities . . . .
R. at 31; see also Def.’s Obj. at 2 (citing R. at 31 as acknowledging Dr. Schwarz’s
“significant history” with Johnston). Further, while the decision does, in passing, refer
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to Dr. Schwarz as Johnston’s “treating physician,” it provides no basis for characterizing
Dr. Schwarz as such. R. at 32. The court cannot conclude that this passing reference
suffices to show that the ALJ considered the length and frequency of Dr. Schwarz’s
treatment relationship with Johnston as sections 404.1527(c) and 416.927(c) require.
The Recommended Ruling, thus, was correct in concluding that the ALJ’s
decision was unclear on whether “the ALJ considered all of the factors enumerated in
the regulations.” Ruling at 61. Because failure to provide “good reasons” for not
crediting a treating physician opinion permits remand, Burgess, 537 F.3d at 129-30
(internal citation marks omitted), Judge Fitzsimmons did not err in remanding the case
to ensure that “all of the factors were given appropriate consideration.” Ruling at 62-63.
B.
State Agency Physicians’ Opinions
SSA argues that the Recommended Ruling erred in finding that the opinions of
the State agency consultants, which the ALJ gave “great” and “significant” weight, were
not fully supported by the record. Def.’s Obj. at 4. SSA contends that substantial
evidence supports the weight the ALJ gave to these opinions. Id. Judge Fitzsimmons,
however, found no evidence in the record to corroborate consultant Dr. Khurshid Khan’s
conclusion that Johnston “could walk and sit for a total of 6 hours in an 8 hour workday,”
or the opinions of both Dr. Khan and Dr. Firooz Golkar that Johnston could “frequently”
climb stairs. Ruling at 51, 64-65. She determined that these opinions were inconsistent
with testimony from Johnston, other statements in the record Johnston made regarding
his limitations, Johnston’s treatment history, and the medical opinion of Dr. Loretta
Pilagin, who treated Johnston. Id. at 64-65. While the objective medical evidence
referenced in the ALJ’s decision may support a finding that Johnston’s back pain was
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less severe than he testified, it does not provide a basis for the ALJ to have concluded
that the opinions of Dr. Khan and Dr. Golkar on this matter were supported by
substantial evidence. R. at 29-32. While SSA notes that the ALJ was not required to
accept Johnston’s testimony because he found reason to doubt its credibility, nothing in
the ALJ’s decision suggests that he had any reason, aside from the consultants’
opinions, to discredit Johnston’s testimony on the length of time that he could walk and
sit or how often he could climb stairs. Def.’s Obj. at 4-5.
SSA suggests that the Magistrate Judge based her finding that the weight given
to the consultants’ opinions was not justified by the record on the fact that the
consultants did not examine Johnston. Def.’s Obj. at 4. The Recommended Ruling,
however, does not reflect this. As discussed above, the Magistrate Judge determined
that the dearth of support for certain conclusions reached by the consultants
undermined their opinions. Ruling at 64-65. Judge Fitzsimmons also acknowledged
that the regulations and caselaw both advise that reports of medical advisors who have
not examined the claimant “generally be afforded relatively little weight in the overall
disability determination.” Freegard v. Astrue, No. 1:11CV12, 2011 WL 4915744, at *
7(D. Vt. Sept. 20, 2011); Ruling at 65. The ALJ credited the consultants’ opinions
because of their consistency with the objective medical evidence and Johnston’s
treatment history and testimony, and declined to afford much weight to Dr. Schwarz’s
opinion because of its inconsistency with this record. R. at 32-33. He did not consider
the effect of Dr. Schwarz’s treatment relationship—and the consultants’ lack of such a
relationship—in weighing these opinions. In light of the Recommended Ruling’s finding
that the consultants’ opinions were not entirely consistent with the record, it was not
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legal error for Magistrate Judge to have remanded the case for the ALJ to account for
the difference in Dr. Schwarz and the consultants’ familiarity with Johnston in weighing
their opinions. See Freegard, 2011 WL 4915744 at * 7 (observing that the findings of
non-examining analysts should generally be afforded relatively little overall weight and
that the ALJ should have considered the effect of the treating physician’s relationship
with the claimant and the non-examining physician’s lack of such a relationship on the
comparable weighing of the medical opinions).
SSA takes issue with the Recommended Ruling’s conclusion that Dr. Pilagin’s
opinion undermined the consultants’ opinions; SSA argues that Dr. Pilagin’s opinion,
and the evidence supporting it, did not relate to the period at issue in the consultants’
opinions, and thus could not undermine them. Def.’s Obj. at 4. Johnston, however,
contends that Dr. Pilagin gave a valid retrospective opinion relating back to this period.
Pl.’s Obj. at 3. The period at issue in Dr. Khan’s opinion is October 31, 2008—
Johnston’s alleged onset date—through January 20, 2011—the date of Khan’s opinion.
R. at 72, 80. The relevant period for Dr. Golkar’s consultation is October 31,2008
through April 21, 2011. Id. at 101. Dr. Pilagin dates the onset of Johnston’s lumbar
degenerative disc disease symptoms to 1999, and symptoms related to his other
diagnoses to 2011. Id. at 840. Dr. Pilagin’s opinion, thus, does relate to the period
relevant to the consultants’ opinions. As Dr. Pilagin’s opinion was not before the ALJ,
the ALJ’s decision did not evaluate how much weight her retrospective opinion should
carry. See Campbell v. Barnhart, 178 F.Supp.2d 123, 135 (D. Conn. 2001) (noting that
a treating physician’s retrospective opinion is binding on the ALJ unless contradicted by
other medical evidence or overwhelmingly compelling non-medical evidence). Thus,
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the Recommended Ruling did not err in ordering that the ALJ consider Dr. Pilagin’s
opinion on remand.
IV.
CONCLUSION
For the reasons stated above, the court OVERRULES SSA’s Objection (Doc. No.
15) and ADOPTS Judge Fitzsimmons’ Recommended Ruling (Doc. No. 14).
SO ORDERED.
Dated at New Haven, Connecticut this 31st day of March, 2014.
/s/ Janet C. Hall__
Janet C. Hall
United States District Judge
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